text:
    STATE of Louisiana v. Deandrus JONES, et al.
    18-909
    Court of Appeal of Louisiana, Third Circuit.
    June 5, 2019
    Paul J. deMahy, 2206 Catherine Drive, St. Martinville, Louisiana 70582, (337) 519-5400, Counsel for Defendant/Appellant: American Surety Company
    Keith Stutes, District Attorney, Emilia Salas Pardo, Assistant District Attorney, 800 S. Buchanan St., Lafayette, Louisiana 70501, (337) 232-5170, Counsel for Plaintiff/Appellee: State of Louisiana
    Court composed of D. Kent Savoie, Candyce G. Perret, and Jonathan W. Perry, Judges.
   PERRY, Judge.

American Surety Company ("American") appeals the judgment of the trial court, forfeiting three appearance bonds American, as surety, posted on behalf of Deandrus Jones ("Jones"), its principal. For reasons that follow, we reverse the judgment granting the forfeiture of Bond Number 724225D (Power Number AS15-438564) in the current case, appellate docket 18-909.

FACTS AND PROCEDURAL HISTORY

On September 2, 2015, Jones was arrested on three counts of simple burglary, violations of La.R.S. 14:62. He was bonded out of jail on September 11, 2015, by three commercial surety bonds, numbers 724223D, 724224D, and 724225D, each issued on behalf of American in the amount of $ 5,000.00. On July 27, 2017, Jones failed to appear in court after personal service. As a result, the court issued a warrant for Jones's arrest. In accordance with La.Code Crim.P. art. 334, the Clerk of Court, Lafayette Parish, notified American on August 7, 2017, that the court had issued a warrant of arrest for Jones; American signed receipt of the certified mail on August 14, 2017. On February 16, 2018, approximately 193 days after the execution of the certificate that the notice of warrant for arrest was sent, Jones was re-arrested.

On May 23, 2018, the State filed a petition for rule to show cause, ordering Jones and American to appear and show cause why bond forfeiture judgments should not be rendered against them. In various places in its petition, the State asks for the forfeiture of two bonds. In particular, the second unnumbered paragraph of the State's pleading: "On SEPTEMBER 11, 2015, AMERICAN SURETY COMPANY , a commercial surety, issued two criminal bail bonds for the release of the defendant[.]" The third unnumbered paragraph states, " Code of Criminal Procedure 336 authorizes [the] State to obtain two judgments of bond forfeiture upon the proof of four elements." The fourth unnumbered paragraph states, in pertinent part, "The State respectfully represents that the four (4) elements required in the statute are satisfied by the following: 1. Two bail undertakings were executed for the defendant by the surety through its agent on SEPTEMBER 11, 2015 , and copies are attached." Finally, the State's last unnumbered paragraph states, "For the above and foregoing reasons, counsel for the State requests this Honorable Court to order DEANDRUS JONES AND AMERICAN SURETY COMPANY to appear and show cause why two bond forfeiture judgments should not be rendered against DEANDRUS JONES AND AMERICAN SURETY COMPANY."

Yet, in other places in its pleading the State delineates three appearance bonds, specifying that those bonds were for "criminal bail bonds for the release of the defendant [Jones] in the amounts of FIVE THOUSAND ($ 5,000.00) DOLLARS and FIVE THOUSAND ($ 5,000.00) DOLLARS, FIVE THOUSAND ($ 5,000.00) DOLLARS" issued through its agent BONDS 4 LESS. The State's fourth unnumbered paragraph further states, in pertinent part, "The powers of attorney AS15-438564, AS5-1067356, AS5-1060104 , executed by the agent for the surety are attached." Also attached to the rule to show cause were copies of the three commercial surety bonds and their three corresponding powers of attorney; a copy of the notice of warrant for Jones's arrest and the notice of the warrant for arrest mailed on August 7, 2017, to Jones and American; a copy of the certificate of service of the certified mail on Jones and American; and a letter from the Lafayette Parish Sheriff's Office, verifying that more than 180 days passed after the mailing of the notice of warrant for Jones's arrest. The trial court set the rule to show cause for a hearing on July 25, 2018.

At the hearing on July 25, 2018, neither Jones nor American appeared. At that time, the State entered into evidence the appearance bonds, the powers of attorney, the notice of warrant for arrest with the certificate of service, and the one hundred eighty days letter. The State also alerted the trial court to a typographical error in its pleadings-although it used the word "two" in reference to the number of criminal bail bonds, it listed all three $ 5,000.00 bonds and their three powers of attorney in its petition for rule to show cause and attached those items as exhibits to the petition. However, when an attorney representing Bonds 4 Less appeared at the hearing, the trial court took the issues under advisement, ordered the hearing reset for August 29, 2018, and ordered Jones and American re-served.

On August 29, 2018, neither Jones nor American appeared. After hearing oral argument and reviewing the evidence, the trial court granted judgment in favor of the State and against Jones, as principal, and American, as surety, in the amount of $ 5,000.00 on each of the three appearance bonds. Separate judgments were signed for each of the appearance bonds.

American suspensively appealed each of the judgments. It assigns as error that the trial court erred: (1) when it rendered three judgments of bond forfeiture against American, although the State's petition alleged two bonds were issued by American and sought to forfeit two bonds; (2) when it rendered three judgments of bond forfeiture against American based on a failure to appear on a warrant that was recalled before the State filed its petition to forfeit; and (3) when it rendered three judgments of bond forfeiture against American after Jones pleaded guilty to count one of the original charges and the State dismissed counts two and three of the originally charged offenses.

THE PLEADINGS

In American's first assignment of error, it argues that the trial court erred when it ordered the forfeiture of three appearance bonds when the State's pleadings sought the forfeiture of only two appearance bonds. For the following reasons, we find merit in American's argument.

Louisiana Revised Statutes 15:83(A) provides, "As criminal bail bonds are contractual and civil in nature, their creation and enforcement are governed both by the laws applicable to civil contracts and by the laws set forth in the statutes and code articles governing criminal procedure." To obtain a judgment of bond forfeiture against a surety, the State is required to strictly comply with the terms of the statutes regulating bond forfeitures. Bankers Ins. Co. v. State , 37,080 (La.App. 2 Cir. 4/11/03), 843 So.2d 641, writ denied , 03-1240 (La. 6/27/03), 847 So.2d 1268.

Louisiana Code of Criminal Procedure Article 335 establishes the rule to show cause as the appropriate procedural vehicle for the State to seek the forfeiture of an appearance bond. The rule to show cause is a summary proceeding. See La.Code Civ.P. art. 2593. Except as otherwise provided by law, an answer is not required in a summary proceeding. Id. Notwithstanding, any exception to the rule to show cause "shall be filed prior to the time assigned for, and shall be disposed of at, the trial." Id. Lastly, the rule to show cause for the bond forfeiture "shall be mailed to the defendant and served on all other parties against whom a judgment is sought," and the rule "shall be set for a contradictory hearing." La.Code Crim.P. art. 335.

American, who did not appear at either hearing on the rule to show cause, now contends the trial court improperly allowed the State to enlarge its pleadings to encompass three bond forfeitures when only two forfeitures were referenced in its petition. It does not contest that it issued the three bonds, received notice of the rule to show cause, or that it was unaware of the dates set for the contradictory hearing.

It cannot be denied that the State's petition in places seeks the forfeiture of two bonds. Also, it cannot be denied that the State's pleadings also reference the issuance of three bonds, all of them issued at one time and on the same date, and each bond issuance coincides with Jones's three burglary arrests; likewise, it is clear that the State's attachments include all three bonds and their corresponding powers of attorney. The record is equally clear that American received notice of the rule to show cause together with the State's pleadings and the three in globo attachments. Nevertheless, American points out that the State prayed for the forfeiture of only two bonds.

In Moore v. Ware , 01-3341, pp. 12-13 (La. 2/25/03), 839 So.2d 940, 948-49, the supreme court said:

Due process is a flexible standard and calls for such procedural protections as the particular situation demands. Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). As the United States Supreme Court noted in [ Cleveland Board of Education v.] Loudermill , [470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494 ], "the right to due process is conferred not by legislative grace, but by constitutional guarantee." Loudermill, 470 U.S. at 541, 105 S.Ct. 1487 (quoting Arnett v. Kennedy, 416 U.S. 134, 167, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974) )[.]
"[The] central meaning of procedural due process is well settled. Persons whose rights may be affected are entitled to be heard; and in order that they may enjoy that right, they must first be notified." Wilson v. City of New Orleans, 479 So.2d 891, 894 (La.1985). Correlatively, this right to notice and opportunity to be heard must be extended at a meaningful time and in a meaningful manner. Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972) ; Armstrong v. Manzo, 380 U.S. 545, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965).

It cannot be denied that judgments sometimes arise in rules to show cause because of the defendant's failure to appear and refute the plaintiff's prima facie case after having had the due process opportunity to do so, i.e., service of process containing proper notice of what is at stake. Nevertheless, the failure of a defendant to make an appearance on the record cannot be construed as agreement with the plaintiff's allegations, dispensing with the necessity for proof of at least a prima facie case on that which is demanded in the rule to show cause. Implicit in the requirement that the plaintiff prove a prima facie case before judgment may be granted is the presumption that the defendant's failure to appear constitutes a tacit denial and opposition to the plaintiff's claim and prayer for relief, not that the defendant's silence constitutes consent to judgment. In other words, if the defendant's failure to appear could be construed as some form of consent, there would be no need to require the plaintiff to prove a prima facie case at the hearing on the rule to show cause.

In the present case, there is no doubt the State's petition presented American with a mixed notice of its bond obligations. It can also not be denied that the State's petition for the rule to show cause tracked the four elements delineated in La.Code Crim.P. art. 336 needed to obtain the bond forfeitures: (1) it identified the bond undertakings; (2) it attached the corresponding powers of attorney; (3) it referenced the notice to the defendant, Jones, and American, his surety; and (4) it provided evidence that more than 180 days had elapsed since the notice of Jones's warrant for arrest was sent. Nevertheless, the State's rule to show cause also provided notice to American that the State sought to enforce only two of the bonds. In its prayer for relief, the State specified, "For the above and foregoing reasons, counsel for the State requests that this Honorable Court to order DEANDRUS JONES AND AMERICAN SURETY COMPANY to appear and show cause why two bond forfeiture judgments should not be rendered against DEANDRUS JONES AND AMERICAN SURETY COMPANY ."

"A trial court's determination that an issue is encompassed within the scope of the pleadings is subject to a review for abuse of discretion." In re Eleanor Pierce (Marshall) Stevens Living Trust , 14-697, 14-827, 14-828, p. 17 (La.App. 3 Cir. 2/18/15), 159 So.3d 1101, 1112 (citing Metoyer v. Roy O. Martin, Inc., 03-1540 (La.App. 3 Cir. 12/1/04), 895 So.2d 552, writ denied , 05-1027 (La. 6/3/05), 903 So.2d 467 ). In the present case, considering the procedural due process requirements applicable herein and the State's prayer for relief, we find the trial court abused its discretion when it allowed the forfeiture of the three appearance bonds when the State's pleadings gave notice to American that it sought only the enforcement of two of those bond obligations. Therefore, as more particularly decreed hereafter, we reverse one of the bond forfeiture judgments.

AMERICAN'S DEFENSES

In its second and third assignments of error, American makes two additional arguments. First, it contends that the State was precluded from obtaining its judgments of bond forfeiture because Jones made an appearance on February 16, 2018. Second, it further contends that the State was precluded from obtaining its judgments of bond forfeiture because at his later court appearance, Jones pleaded guilty to one count of burglary, and the State dismissed the other two counts of burglary.

Based on La.Code Crim.P. art. 335, the State had the right to seek the bond forfeitures when Jones failed to appear within the required 180 days after his arrest warrant was issued. Only an appearance by the defendant within the 180 days serves as an interruption of the period for obtaining a bond forfeiture judgment. La.Code Crim.P. art. 337. In the present case, the exhibits entered into evidence show Jones did make an appearance, but it was thirteen days after the required 180-day period tolled as calculated from the date his arrest warrant was issued; accordingly, Jones's appearance did not interrupt the period for obtaining a bond forfeiture. Thus, when Jones failed to appear within the 180 days established by statute, American's bond obligations ripened into a cause of action enforceable by the State under the provisions of La.Code Crim.P. art. 335. Therefore, there is no merit to American's argument.

Next, American contends the State should not have been granted the judgments of bond forfeiture because Jones pled guilty to one count of burglary on July 23, 2018, and the State dismissed the remaining two counts of burglary. For the following reasons, we find this issue is not properly before us.

In its brief to this court, American refers to court records of Jones's plea agreement and Boykinization on July 23, 2018. However, because neither Jones nor American appeared at the rule to show cause, those records were not entered into evidence. "Evidence not properly and officially offered and introduced cannot be considered, even if it is physically placed in the record." Denoux v. Vessel Mgmt. Servs., Inc ., 07-2143, p. 6 (La. 5/21/08), 983 So.2d 84, 88. Therefore, we cannot consider any of those documents in our review.

Notwithstanding, it is clear that once Jones failed to appear within the 180-day period designated in La.Code Crim.P. art. 335, American's obligation as surety ripened, and the State had a legal right to seek judgments of bond forfeiture based on the bail bonds. Jones's subsequent plea agreement in no way affected American's pre-existing, enforceable obligation as surety.

DISPOSITION

For the foregoing reasons, in the current case, appellate docket 18-909, we reverse the judgment granting the forfeiture of Bond Number 724225D (Power Number AS15-438564). Costs are assessed to American Surety Company.

REVERSED.

      American was cast in judgment as surety for Jones on three appearance bonds. American appealed each judgment in the amount of $ 5,000.00. A separate appellate docket number has been assigned to each judgment. By order of this court, the three appeals were consolidated. A separate opinion has been issued in each docketed appeal. In the companion case of State of Louisiana v. Deandrus Jones, et al., 18-910 (La.App. 3 Cir. __/__/__), and State of Louisiana v. Deandrus Jones, et al. , 18-911, 273 So.3d 434, 2019 WL 2366726 (La.App. 3 Cir. 06/05/19), we affirm the judgments granting the forfeiture of Bond Number 724224D (Power Number AS5-1067356), our docket number 18-910, and Bond Number 724223D (Power Number AS5-1060104), our docket number 18-911.

      Although the attorney for Bonds 4 Less made an appearance, the trial court ruled Bonds 4 Less did not have standing. Our review of the record shows Bonds 4 Less was not made a party to the State's proceedings and was not served with the State's pleading. Bonds 4 Less neither sought a supervisory writ application on the trial court's ruling nor is it a party to this appeal. Therefore, this issue is not before us.

      Although answers are not required in rules to show cause, "[e]xceptions to a contradictory motion, rule to show cause, opposition, or petition in a summary proceeding shall be filed prior to the time assigned for, and shall be disposed of at, the trial." La.Code Civ.P. art. 2593. To the extent American is now attempting to assert an affirmative defense of extinguishment of its obligations as surety for the first time in the appellate court, we find such assertion untimely.

      For completeness, we note that Bonds 4 Less, who the trial court ruled had no standing in this matter, proffered Jones's Boykinization testimony of July 23, 2018, into the record. Louisiana Code of Civil Procedure Article 1636 does allow the trial court to permit a party to make a proffer of evidence ruled inadmissible. However, based upon a plain reading of the text of La.Code Civ.P. art. 1636, it is abundantly clear that only a party to the litigation may proffer evidence. In the present case, Bonds 4 Less was not a party to this litigation. Thus, American, who was not present at the hearing on the rule to show cause, may not now rely upon excluded, proffered evidence offered by one who was not a party to the litigation.

      Nowhere in the State's petition did it unambiguously specify which two bonds it sought to enforce. Accordingly, because all three bonds identified in the State's petition are each for the same sum of $ 5,000.00, we have arbitrarily chosen to reverse the first-numbered bond reflected in the judgment appealed in docket number 18-909.


source: Caselaw Access Project

author: CONERY, Judge.

license: Public Domain

text:
    Kevon BROOKS, et al. v. Rachelle MEAUX, M.D.
    CA 18-980
    Court of Appeal of Louisiana, Third Circuit.
    June 12, 2019
    Maria Bridget Glorioso, The Glorioso Law Firm, 2716 Athania Parkway, Metairie, Louisiana 70002, (504) 569-9999, COUNSEL FOR PLAINTIFF/APPELLANT: Kevon Brooks, Kevon Brooks, on behalf of Alice Faye Brooks, Kevon Brooks, on behalf of Maleah S. Brooks
    James J. Hautot, Jr., Michelle R. Judice, Judice & Adley, Post Office Drawer 51769, Lafayette, Louisiana 70505-1769, (337) 235-2405, COUNSEL FOR DEFENDANT/APPELLEE: Rachelle Meaux, M.D.
    John Elliott Baker, Special Assistant Attorney General, Irving Hirsch Koch, Assistant Attorney General, 321 North Vermont Street, Suite 208, Covington, Louisiana 70433, (985) 867-9068, COUNSEL FOR INTERVENOR/APPELLEE: Attorney General, State of Louisiana
    Court composed of Ulysses Gene Thibodeaux, Chief Judge, Shannon J. Gremillion, and John E. Conery, Judges.
   CONERY, Judge.

The plaintiff filed this medical malpractice action seeking damages associated with the pregnancy-related death of his wife. The defendant physician filed an exception of prescription after the matter was initially filed in a court of improper venue and subsequently transferred to the appropriate district. The trial court sustained the exception, dismissing the plaintiff's claims as to his wife. The plaintiff appeals. For the following reasons, we reverse and remand.

FACTS AND PROCEDURAL HISTORY

This matter stems from the death of Alice Brooks, who collapsed in her home in the early morning hours of October 11, 2013, and who died in the thirty-eighth week of her pregnancy after being taken to the emergency room. The twenty-four-year old's cause of death was determined to be Peripartum Cardiomyopathy. Although not the subject of this appeal, Mrs. Brooks' child, Maleah Brooks, was delivered by caesarean section, but died weeks after delivery.

Kevon Brooks, Mrs. Brooks' husband and Maleah's father, instituted this matter against Dr. Rachelle Meaux, Mrs. Brooks' obstetrician/gynecologist. Pertinent to the prescription issue on appeal, Mr. Brooks filed a medical malpractice complaint with the Louisiana Patient's Compensation Fund (PCF) on October 10, 2014, requesting a Medical Review Panel (MRP). He alleged that Dr. Meaux deviated from the applicable standard of care by the "failure to properly diagnose, treat/monitor, perform additional testing[,] or refer" Mrs. Brooks for further testing. That deviation, Mr. Brooks asserted, resulted in Mrs. Brooks' death.

The MRP rendered its decision on June 13, 2016, with notice provided to Mr. Brooks on July 20, 2016. Mr. Brooks, in turn, filed his initial petition in East Baton Rouge Parish on October 5, 2016, naming Dr. Meaux as the defendant in this medical malpractice claim. He alleged that Mrs. Brooks presented to Dr. Meaux on the day before her death, complaining of "shortness of breath over the last several days, congestion with cough, swelling of legs down to ankles and feet, and a 5 lb. weight gain over the last 6 days." Mr. Brooks further alleged that Mrs. Brooks "was sent home where, in the early morning hours of October 11, 2013, [she] suffered a cardiac arrest." He began CPR and continued that effort until paramedics arrived. Mrs. Brooks was taken by ambulance to Women's and Children's hospital in Lafayette, where Maleah was delivered via caesarean section. Mrs. Brooks was pronounced dead shortly thereafter. As in the complaint before the PCF, Mr. Brooks asserted that Dr. Meaux was negligent in her failure to diagnose and treat Mrs. Brooks' condition.

Although filed on October 5, 2016, Mr. Brooks' petition was not served on Dr. Meaux until November 16, 2016. Dr. Meaux subsequently filed an exception of improper venue, noting that her domicile, residence, and medical practice were in Lafayette Parish as was the entirety of the subject medical care. Denying that East Baton Rouge Parish was a parish of proper venue, Dr. Meaux requested that the claim against her be dismissed. Mr. Brooks responded by filing a motion to transfer the matter to Lafayette Parish. Following a hearing, the trial court judge granted the exception of improper venue but denied the request for dismissal. The resulting May 25, 2017 judgment instead transferred the matter to Lafayette Parish.

Upon transfer, Dr. Meaux filed the exception of prescription now at issue and asserted that the date of Mrs. Brooks' death, October 11, 2013, commenced the one-year prescriptive period applicable to this medical malpractice matter. Although filed within the subsequent one-year period, the request for the MRP was not filed until October 10, 2014. Dr. Meaux contended that this request was only "one (1) day prior to the one-year prescriptive period lapsing" on the instant claim. See La.R.S. 40:1231.8(A)(2)(a) ("The filing of the request for a review of a claim shall suspend the time within which suit must be instituted, ... until ninety days following notification by certified mail, ... to the claimant or his attorney of the issuance of the opinion of the medical review panel.").

Thereafter referencing July 20, 2016, as the date she received the MRP opinion, Dr. Meaux urged that Mr. Brooks "had ninety (90) days, in addition to one (1) day still remaining in the prescriptive period, to file a lawsuit in a court of proper venue[.]" Dr. Meaux thus alleged that Mr. Brooks had through October 19, 2016, to file this matter in a court of proper venue.

While suit was filed on October 5, 2016, Dr. Meaux pointed out that it was filed in an improper venue as evidenced by the granting of the exception by the court in East Baton Rouge Parish, who transferred the case to Lafayette Parish. She further contended that prescription was not interrupted until she was actually later served with that suit on November 16, 2016. Louisiana Civil Code Article 3462 provides: "If action is commenced in an incompetent court, or in an improper venue, prescription is interrupted only as to a defendant served by process within the prescriptive period." As that date of actual service was beyond the extended prescription date of October 19, 2016, Dr. Meaux claimed in her exception that the matter was prescribed.

In opposition, Mr. Brooks chiefly questioned Dr. Meaux's suggestion that prescription began on the date of Mrs. Brooks' death. He contended instead that prescription began to run on the date that he became aware of his cause of action. Mr. Brooks identified that date as his receipt of the December 19, 2013 autopsy report, and, pursuant to that argument, he had one year from December 19, 2013 for the institution of suit. Having requested the MRP review on October 10, 2014, Mr. Brooks urged he had "approximately an additional 70 days beyond the 90 day post Medical Review Panel notification [pursuant to La.R.S. 40:1231.8(A)(2)(a) ], for the sheriff to effect service on defendant." (Emphasis omitted.) Accordingly, Mr. Brooks asserted that he "did not have just one day left on the one year statu[t]e, but some 70 days under the discovery rule to have defendant served post-initial filing, or until December 27, 2016[.]" Mr. Brooks urges that personal service on Dr. Meaux on November 16, 2016, was well within the prescriptive period.

Following an evidentiary hearing, at which the parties' presented their respective arguments regarding the commencement of the prescriptive period, the trial court ruled in favor of Dr. Meaux. Though no oral or written reasons were assigned, the trial court cryptically indicated agreement with Dr. Meaux's position, finding that "it was a day late." Accordingly, the trial court sustained the exception of prescription and dismissed Mr. Brooks' claims arising out of Mrs. Brooks' death. The trial court designated the judgment as a final, appealable judgment pursuant to La.Code Civ.P. art. 1915(B).

Mr. Brooks timely appealed and assigned three errors.

ASSIGNMENT OF ERRORS

1. The trial court erred as a matter of law in holding that prescription on wrongful death and survival actions always commences running on the date of death.
2. The trial court erred as a matter of law or, alternatively, committed manifest error, in determining that prescription on Kevon's wrongful death and survival actions commenced on the date of his wife's death, rather than on the date he received his wife's autopsy report.
3. The trial court erred as a matter of law or, alternatively, committed manifest error, in granting Dr. Meaux's exception of prescription and dismissing Kevon's wrongful death and survival action.

LAW AND DISCUSSION

Standard of Review

We consider Mr. Brooks' assignments of error collectively as each addresses the correctness of the sustaining of the exception of prescription. On review, an appellate court's standard of review is dependent on whether the parties introduced evidence at the hearing on the exception. Arton v. Tedesco , 14-1281 (La.App. 3 Cir. 4/29/15), 176 So.3d 1125, writ denied , 15-1065 (La. 9/11/15), 176 So.3d 1043. If evidence was introduced, the appellate court applies the manifest error standard of review. In the event no evidence was introduced, the judgment is reviewed for legal error. Id. Although this matter is reviewed under the more deferential manifest error standard given the introduction of evidence, we conclude that the trial court's judgment must be reversed.

Burden of Proof

Generally, the party advancing the exception of prescription bears the burden of proving prescription, unless the plaintiff's claim is prescribed on its face. Bailey v. Khoury , 04-0620 (La. 1/20/05), 891 So.2d 1268. In this latter event, the burden shifts to the plaintiff. Id. A court must not find a petition prescribed on its face, however, if it was filed within a year of discovery and if " 'facts alleged with particularity in the petition show that the patient was unaware of the malpractice prior to the alleged date of discovery, and the delay in filing suit was not due to willful, negligent, or unreasonable action of the patient.' " Id. at 1275 (quoting Campo v. Correa , 01-2707, p. 9 (La. 6/21/02), 828 So.2d 502, 509 ).

While the trial court's succinct ruling that the petition was filed "a day late" reflects a determination that the matter was prescribed on its face, such a finding does not accord with Mr. Brooks' allegation by particularized facts that he did not discover his cause of action until review of the December 19, 2013 autopsy report. It was that review, he contends, by which he correlated the cause of death with the medical treatment of his wife. Finding error for the reasons discussed below, we reverse the trial court's ruling and remand for further proceedings.

Merits

The parties' respective arguments regarding the commencement of the prescriptive period address the differing prescriptive periods of La.R.S. 9:5628(A), which provides, in part, that:

No action for damages for injury or death against any physician, chiropractor, nurse, licensed midwife practitioner, dentist, psychologist, optometrist, hospital or nursing home duly licensed under the laws of this state, or community blood center or tissue bank as defined in R.S. 40:1231.1(A), whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought unless filed within one year from the date of the alleged act, omission, or neglect, or within one year from the date of discovery of the alleged act, omission, or neglect ; however, even as to claims filed within one year from the date of such discovery, in all events such claims shall be filed at the latest within a period of three years from the date of the alleged act, omission, or neglect.

(emphasis added.)

As briefly referenced above, Dr. Meaux marks the October 11, 2013 death of Mrs. Brooks as the date on which prescription commenced. The request for the MRP was filed against Dr. Meaux on October 10, 2014. Dr. Meaux thus contends that one day remained on the prescriptive period at the time of filing and that prescription was suspended during the pendency of the panel proceedings. See La.R.S. 40:1299.31(A)(2)(a). Mr. Brooks was notified of the MRP decision on July 20, 2016. Again referencing the statute, Dr. Meaux contends that Mr. Brooks thereafter had ninety days, plus the remaining one day of the initial, one-year prescriptive period. According to Dr. Meaux, Mr. Brooks had ninety-one days after the service of the MRP opinion to institute this matter. While Mr. Brooks filed this matter on October 5, 2016, he did so in East Baton Rouge Parish. With October 5, 2016, falling within that ninety-one-day period urged by Dr. Meaux, she points out that she was not served with that suit until November 16, 2016. Further, East Baton Rouge Parish was found to be an improper venue. As such, La.Civ.Code art. 3462 provides: "If action is commenced in an incompetent court, or in an improper venue, prescription is interrupted only as to a defendant served by process within the prescriptive period."

Mr. Brooks, however, claimed that he was initially unaware that he had a potential malpractice claim against Dr. Meaux until he received the coroner's report dated December 19, 2013. He alleged by supplemental petition that Dr. Meaux and other emergency room personnel informed him after his wife had died that "they were unaware of what caused his wife's cardiac arrest" and that they would instead "have to wait for the autopsy results." As there are "numerous causes of cardiac arrest," Mr. Brooks asserted that he "could not have reasonably discovered the reasons for his wife's death until the cause of death was determined by the Coroner on [the] December 19, 2013" autopsy report. Basing his claim on this date of "discovery," Mr. Brooks alleged in the supplemental petition that upon review of both the report and "a MedLine article attached to the Autopsy Report describing the medical diagnosis of Peripartum Cardiomyopathy [,]" he "discovered for the first time the warning signs and symptoms of this diagnosis were the same ones his wife was having prior to her death." He stated he realized that Mrs. Brooks had complained to Dr. Meaux about those "same signs and symptoms prior to her cardiac arrest." He alleged that the receipt of the coroner's report and the accompanying MedLine article on December 19, 2013, was the first time he had reason to consider the involvement of malpractice. He noted that his October 10, 2014 request for a medical review panel indicated that "he was not made aware of the cause of his wife's death nor the cause of her cardiac arrest until he received the Autopsy Report sometime after it was finalized on 12/19/13[,]" setting forth the cause of death as Peripartum Cardiomyopathy. Given those factors, Mr. Brooks contended that prescription did not begin to run until the discovery of the cause of action on December 19, 2013.

Dr. Meaux filed into evidence the October 16, 2013 death certificate listing Peripartum Cardiomyopathy as the immediate cause of death in support of her argument that prescription had run. Dr. Meaux suggests that even if the prescriptive period did not commence at the time of death, it is notable that the death certificate completed a few days after death was sufficient under the law to incite Mr. Brooks' attention for further inquiry. This argument, however, conflates knowledge of the cause of death with knowledge of alleged tortious conduct, a distinction important under the supreme court's jurisprudence.

In support of his opposition to the exception of prescription, Mr. Brooks supplied his deposition whereby he detailed the timeline of events, including his attendance at Mrs. Brooks' final appointment with Dr. Meaux on the day before her death. He explained that Mrs. Brooks complained to Dr. Meaux of swelling and difficulty breathing at that time. He also testified that Mrs. Brooks was told that such complaints were common with first time mothers and that if problems worsened, she should report to the emergency room. Campo , 828 So.2d 502.

Continuing, Mr. Brooks detailed the early morning hours of October 11, 2013, and stated that Mrs. Brooks woke him, reported that she could not breathe, and that she lost consciousness upon standing. After calling 911, Mr. Brooks began CPR and maintained that effort for the thirty minutes it took for the ambulance to arrive. She was pronounced dead at the hospital. Mr. Brooks testified that he was not told that night why his wife died. He instead stated that when he inquired about what had happened, "no one knew[.]" Mr. Brooks acknowledged that it was not "normal" for a twenty-four-year-old to die, thus prompting his request for an autopsy.

Mr. Brooks explained that he picked up the autopsy report upon its December 19, 2013 completion, and that the packet from the coroner's office included a "MedlinePlus article[.]" Mr. Brooks denied having discussions with anyone about why his wife died before receiving the autopsy report. After review of the report and article, however, Mr. Brooks explained that he started to "ask [himself] questions of concerns [sic] of the complaints that we had on the 10th, and then through the autopsy report of what actually caused it and the symptoms[. ]" He then had a discussion with a friend "in the medical field[,]" who referred him to an attorney.

This testimony demonstrates Mr. Brooks' correlation of his wife's reporting of her symptoms at her final doctor's appointment; Dr. Meaux's response thereto; his wife's death the following the determination of her cause of death; and the MedlinePlus article's listing of the symptoms of her condition. He claims that it was not until the receipt of information as to the final element as to potentially tortious medical treatment that he had the type of constructive knowledge required by supreme court decisions as set forth in Campo , 828 So.2d at 510 (emphasis added) as follows: "Prescription commences when a plaintiff obtains actual or constructive knowledge of facts indicating to a reasonable person that he or she is the victim of a tort ."

While Dr. Meaux points to the date of death and the date of the death certificate as evidence of constructive knowledge, "a plaintiff's mere apprehension that something may be wrong is insufficient to commence the running of prescription unless the plaintiff knew or should have known through the exercise of reasonable diligence that his problem may have been caused by acts of malpractice. " Id. at 511 (emphasis added). Further, "[e]ven if a malpractice victim is aware that an undesirable condition has developed after the medical treatment, prescription will not run as long as it was reasonable for the plaintiff not to recognize that the condition might be treatment related." Id. "The ultimate issue is the reasonableness of the patient's action or inaction, in light of his education, intelligence, the severity of the symptoms, and the nature of the defendant's conduct." Id.

That supreme court expression is absent, however, from the fifth circuit case relied upon by Dr. Meaux for the proposition that, in a malpractice case involving the victim's death, "the damage resulting from the alleged malpractice is readily apparent. Thus, in a malpractice action for wrongful death, the prescriptive period begins running on the date of the malpractice death since that is the date the claimants are injured." See Carter v. Ochsner Clinic Found. , 07-889, p. 6 (La.App. 5 Cir. 3/11/08), 978 So.2d 562, 565, writ denied , 08-0936 (La. 8/29/08), 989 So.2d 99. Undoubtedly, the damage in this case was readily apparent at the time of Mrs. Brooks' death. In Campo , 828 So.2d at 511, however, the supreme court instructed that even upon an awareness of damages, prescription "will not run as long as it was reasonable for the plaintiff not to recognize that the condition might be treatment related."

Dr. Meaux further observes that "[a] claimant is not required to be informed by a medical practitioner or an attorney of possible medical malpractice before the prescriptive period begins to run." Carter , 978 So.2d at 565 (citing Abbott v. Louisiana St. Univ. Med. Ctr.-Shreveport , 35,693 (La.App. 2 Cir. 2/27/02), 811 So.2d 1107, writ denied , 02-952 (La. 5/31/02), 817 So.2d 104 ). While true that commencement of prescription is not dependent on information obtained from medical personnel or an attorney, that further information may, however, be important to an inquiry into the reasonableness of a plaintiff's awareness that he was the victim of a tort as articulated in Campo .

In Powell v. St. Francis Medical Center, Inc. , 52,462 (La.App. 2 Cir. 2/27/19), 265 So.3d 1184, the second circuit conducted such a reasonableness inquiry in rejecting a plaintiff's suggestion that he did not know that the defendant hospital was allegedly at fault in failing to treat a blood clot in his wife's brain until he consulted an attorney after her death. While the second circuit found that prescription in the matter, in fact, commenced at the time of the death, it did so due to numerous facts indicative of fault by the defendant. The panel explained that "plaintiff was aware of the persistence and increasing severity of his wife's headaches, that she was required to return to the hospital to seek treatment for the headaches, that [the hospital] had not done any tests even after his wife returned to the hospital complaining that her headaches were worse, that a CT scan performed soon after those visits to [the hospital] showed a blood clot in her brain and that the blood clot was the cause of his wife's symptoms." Id. at 1187. Accordingly, "[b]ased on that evidence presented, there was a reasonable basis ... to suspect that more could have been done to diagnose his wife's condition" at the hospital on the date of her death. Id. "At that time, he possessed knowledge of facts strongly suggestive that his wife's death may have been the result of improper treatment." Id. As apparent in the Powell analysis, the mere awareness of damages, alone, is insufficient to commence prescription as urged by Dr. Meaux. The second circuit instead considered a variety of factors in its consideration of whether the plaintiff had "knowledge of facts strongly suggestive" that his wife's death resulted from improper treatment.

On review of this case, the constellation of knowledge of facts strongly suggestive of improper treatment at the time of Mrs. Brooks' death is absent. More persuasive on this point is this court's recent consideration of a malpractice claim in which the plaintiff sought recovery for damages allegedly sustained by her daughter at the time of her delivery by caesarean section in September 2016. See In re Castle , 18-881 (La.App. 3 Cir. 4/17/19), 268 So.3d 1112. Citing the supreme court's directive in Campo , the Castle panel explained that, although the plaintiff was aware of complications at the time of the procedure, it was not until an expert witness's evaluation of the case in May 2018 that the plaintiff discovered "that the emergency c-section which caused her child's developmental problems had been performed unnecessarily." Id. at 1117, 2019 WL 1716134 at 7. Under the facts of that case, the panel concluded that because the plaintiff's claim was filed "within one year of the alleged discovery date ... the claim was filed within the prescriptive period set forth in La.R.S. 9:5628(A)." Id.

Following review, we find that, under the circumstances presented, Mr. Brooks was reasonable in not having recognized the alleged connection between his wife's reporting of symptoms before her death, and Dr. Meaux's treatment of those symptoms prior to the release of the autopsy report and the accompanying article detailing the symptoms. While the death certificate listed Mrs. Brooks' cause of death, it did not include the listing of symptoms that prompted further correlation with her medical treatment. Accordingly, given the strict construction afforded statutes setting forth prescriptive periods, we conclude that the trial court erred in sustaining the exception of prescription. Bailey , 891 So.2d 1268. By decree below, we reverse that ruling and further deny the exception.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is reversed, and the exception of prescription is denied. This matter is remanded for further proceedings. Costs of this proceeding are assigned to the defendant-appellee, Dr. Rachelle Meaux.

REVERSED AND REMANDED.

      A Plaintiff's exhibit filed into the record reflects that: "Peripartum cardiomyopathy is a rare disorder in which a weakened heart is diagnosed within the final month of pregnancy or within five months after delivery."

      Although the MRP opinion is not contained within the appellate record, the parties indicate that the decision was in favor of Dr. Meaux.

      By the petition, Mr. Brooks also questioned the constitutionality of "[La.]R.S. 40:1231.8 et seq. , and all related statutes limiting the liability of healthcare providers[.]" Following the intervention of the State of Louisiana, through the Attorney General, the trial court entered summary judgment in favor of the State and dismissed the plaintiff's claim of unconstitutionality. That ruling has not been appealed and is not before us.

      Although we ultimately find this matter resolved due to the determination regarding the commencement of the prescriptive period and concentrate discussion on that issue, La.R.S. 40:1231.8(A)(2)(a) is further pertinent to the issue of the calculation of the pertinent period as it provides:
      The filing of the request for a review of a claim shall suspend the time within which suit must be instituted ... until ninety days following notification, by certified mail ... to the claimant or his attorney of the issuance of the opinion by the medical review panel ....
      The period of suspension identified by La.R.S. 40:1231.8(A)(2)(a) is not to be counted in the prescriptive period. See La.Civ.Code art. 3472 ("The period of suspension is not counted toward accrual of prescription. Prescription commences to run again upon the termination of the period of suspension."). In Guitreau v. Kucharchuk , 99-2570, p. 6 (La. 5/16/00), 763 So.2d 575, 580, the supreme court construed La.Civ.Code art. 3472 within the context of a medical malpractice claim, explaining:
      [W]hen the ninety-day period of suspension after the decision of the medical review panel is completed, plaintiffs in medical malpractice actions are entitled to the period of time, under [La.R.S.] 9:5628, that remains unused at the time the request for a medical review panel is filed. Once a medical malpractice claim is submitted to the medical review panel, the prescriptive period is temporarily discontinued. Prescription commences to run again ninety days after the plaintiff has receive notice of the panel's decision. That is, when the ninety day period expires, the period of suspension terminates and prescription commences to run again. Once prescription begins to run again, counting begins at the point at which the suspension period originally began.
      We do not further discuss the end of the period of suspension as it is uncontested that, upon acceptance of the date of discovery as to the commencement of suit as urged by Mr. Brooks, the petition timely interrupted prescription.

      The plaintiff submitted the referenced MedlinePlus article included "Fatigue"; "Feeling of racing heart or skipping beats (palpitations)"; "Increased night-time urination (nocturnal)"; "Shortness of breath with activity and when laying flat" and "Swelling of the ankles[.]"


author: COOKS, Judge.

text:
    GR RESTAURANTS, LLC v. SUZANNE SAVOY SANTILLO, LLC, and Suzanne Savoy Santillo
    18-637 18-702
    Court of Appeal of Louisiana, Third Circuit.
    June 12, 2019
    James P. Lambert, 315 S. College Rd., Suite 146, Lafayette, LA 70503, (337) 261-3737, COUNSEL FOR APPELLANTS: Suzanne Savoy Santillo, LLC and Suzanne Savoy Santillo
    Scott M. Richard, Robert D. Felder, Davidson, Meaux, Sonnier, McElligott, Fontenot, Gideon & Edwards, L.L.P., 810 South Buchanon Street, P.O. Box 2908, Lafayette, LA 70502-2908, (337) 237-1660, COUNSEL FOR APPELLEE: GR Restaurants, LLC
    Alan W. Stewart, Gibson Law Partners, LLC, 2448 Johnston Street, P.O. Box 52124, Lafayette, LA 70505, (337) 761-6023, COUNSEL FOR APPELLEES: Scott L. Sternberg and Sternberg, Nacarri & White, LLC
    Court composed of Sylvia R. Cooks, Billy Howard Ezell, and Phyllis M. Keaty, Judges.
   COOKS, Judge.

FACTS AND PROCEDURAL HISTORY

On January 15, 2018, GR Restaurants, LLC (hereafter GRR) filed suit against Suzanne Savoy Santillo, LLC and Suzanne Savoy Santillo (hereafter collectively referred to as "Santillo") for detrimental reliance, alleging that Santillo promised to exchange her ownership in the Blue Dog Café in Lafayette for an interest in a new, re-formed entity that owned both Blue Dog Cafes in Lafayette and Lake Charles, but then refused to abide by this agreement. Prior to the above suit, Santillo had filed suit against Stephen Santillo, Jacques Rodrigue and Andre Rodrigue, the owners and members of Blue Collar Enterprises, which owns the Blue Dog Café in Lafayette, alleging breaches of fiduciary duties and misappropriation of intellectual property.

Santillo answered the suit filed by GRR and filed an exception of no cause of action, contending GRR could not have a viable detrimental reliance claim in the absence of a signed, written settlement agreement. Santillo also filed reconventional and third-party demands alleging the filing of the detrimental reliance lawsuit by GRR was an abuse of process and a violation of Louisiana's Unfair Trade Practices Act (LUPTA), La.R.S. 51:1401, et seq. GRR was made defendant in reconvention. Jacques Rodrigue, Scott L. Sternberg, and Sternberg, Nacarri & White, LLC (hereafter "Sternberg," which represented Rodrigue in the litigation) were made third-party defendants. After the third-party demand was filed, Sternberg withdrew from representing Rodrigue and another attorney was hired.

Sternberg filed an exception of no cause of action with regard to the third-party demand. GRR filed an exception of no cause of action with regard to the reconventional demand. Rodrigue did not file any exception.

Those exceptions, including Santillo's earlier filed exception of no cause of action, were heard on June 25, 2018. The trial court denied Santillo's exception of no cause of action as to GRR's detrimental reliance claim. The trial court granted both GRR's exception of no cause of action with regard to the reconventional demand and Sternberg's exception of no cause of action to the third-party demand.

A judgment was signed on July 3, 2018, granting the exceptions of no cause of action filed by GRR and Sternberg. Santillo filed a petition for appeal as to this judgment. The trial court, on its own motion, issued a rule to Santillo to show cause why the appeal should not be dismissed as having been taken from a partial judgment that had not been designated as immediately appealable, with respect to the dismissal of Santillo's reconventional demand, and from being taken from a judgment that lacked proper decretal language with respect to the dismissal of Santillo's third-party claims. On December 6, 2018, this court issued an opinion recalling the rule, in part, with respect to the dismissal of Santillo's reconventional demand against GRR, finding that portion of the judgment fell under La.Code Civ.P. art. 1915(A) and did not require a designation of finality. Thus, the appeal was suspended, and the matter remanded to the trial court with instructions to sign a judgment containing proper decretal language specifying that Santillo's third-party demands were dismissed only as to Sternberg, as the other third-party defendant did not file an exception. GR Rest., LLC v. Suzanne Savoy Santillo, LLC , 18-702 (La.App. 3 Cir. 12/6/18), 2018 WL 6432967 (unpublished opinion). The trial court complied with our order to sign a judgment with proper decretal language and the appeal is now before this court again for a ruling on the merits of Santillo's appeal.

A judgment was also signed on July 6, 2018, denying the exception of no cause of action filed by Santillo with respect to the petition for detrimental reliance filed by GRR. Santillo timely filed a writ application to this court, docket number 18-637, seeking a review of the denial of the no cause of action exception. GRR filed an opposition to the writ application. The disposition of the writ application was held in abeyance until the procedural issues in the appeal of the July 3, 2018 judgment was resolved.

After the issuance of the rule in docket number 18-702, Santillo filed an ex parte motion to enroll Stephen Carleton as co-counsel of record. That order was signed by this court on October 1, 2018. GRR and Sternberg filed separate motions to disqualify Carleton, contending he was a fact witness and could not act as counsel of record pursuant to La.Rules Prof.Conduct, Rule 3.7(a), which provides an attorney cannot be both an advocate and a necessary witness at trial unless the testimony is related to an uncontested issue, is related to the nature and value of legal services rendered in the case, or the disqualification would be a substantial hardship to the client.

Carleton represented Santillo in the lawsuit filed against Stephen Santillo, Jacques Rodrigue and Andre Rodrigue. Carleton attested he was counsel of record for Santillo in that action and stated the allegations contained in the answer. In the opposition to the motion to disqualify, Santillo asserted Carleton was enrolled as co-counsel solely for the purposes of the appeal, as her main counsel was on extended vacation at the time (October of 2018). Santillo maintained Carleton would not serve as counsel at trial should her appeal be successful. However, Santillo did not address the fact that only Santillo's reconventional demands and third-party demands had been dismissed. Santillo's exception of no cause of action was denied, and the main demand brought by GRR is to proceed to trial.

On December 28, 2018, this court granted the writ application filed by Santillo for the limited purpose of ordering the consolidation of the writ application, docket number 18-637, with the appeal, docket number 18-702. We held as follows:

WRIT GRANTED. In the above captioned writ application, Relators, Suzanne Savoy Santillo, LLC and Suzanne Savoy Santillo, seek review of the trial court's July 6, 2018 judgment, which denied Relators' exception of no cause of action. Relators have also filed an appeal from the trial court's July 3, 2018 judgment (which is identical to the July 6, 2018 judgment), granting the exception of no cause of action filed by GR Restaurants, LLC, with respect to Relators' reconventional demand and from the December 7, 2018 judgment granting the exceptions of no cause of action filed on behalf of Scott L. Sternberg and Sternberg, Naccari & White, LLC, with respect to Relators' third-party demand. This court has noted that "although an interlocutory judgment is generally not appealable, an interlocutory judgment is subject to review on appeal when an appealable judgment has been rendered." Moran v. Columb Foundation, Inc. , 17-915, pp. 4-5 (La.App. 3 Cir. 1/31/18), 2018 WL 632085 (unreported opinion). In the interests of judicial economy and justice, this court grants this writ application for the limited purpose of ordering the consolidation of the writ application with the appeal lodged in this court under docket number 18-702.

Before this court presently is Santillo's writ application contending the trial court erred in denying its exception of no cause of action that GRR could not have a detrimental reliance claim in the absence of a signed, written settlement agreement. Also before us is Santillo's appeal asserting that the trial court erred in granting the exceptions of no cause of action as to Santillo's abuse of process claim and to Santillo's claims that GRR violated LUTPA.

ANALYSIS

"The function of an exception of no cause of action is to test the legal sufficiency of the petition by determining whether the law affords a remedy on the facts alleged in the pleading." Everything on Wheels Subaru, Inc. v. Subaru S., Inc. , 616 So.2d 1234, 1235 (La.1993). Because the exception of no cause of action raises a question of law, it is reviewed on appeal de novo. Peters v. Allen Parish Sch. Bd. , 08-323 (La.App. 3 Cir. 11/5/08), 996 So.2d 1230. The burden of proof lies with the moving party, and the "pertinent question is whether, in the light most favorable to [the] plaintiff and with every doubt resolved in [the] plaintiff's behalf, the petition states any valid cause of action for relief." Ramey v. DeCaire , 03-1299, p. 8 (La. 3/19/04), 869 So.2d 114, 119. Dismissal is appropriate when the allegations in the petition clearly show that the plaintiff does not have a cause of action, or when the allegations in the petition clearly reveal the existence of an affirmative defense. Rogers v. Ash Grove Cement Co. , 34,934 (La.App. 2 Cir. 11/2/01), 799 So.2d 841, writ denied , 01-3187 (La. 2/8/02), 808 So.2d 351.

Pursuant to La.Code Civ.P. art. 931, no evidence may be admitted to support or oppose an exception of no cause of action. Thus, the court must accept the well-pleaded allegations of fact in the petition as true and determine whether, on the face of the petition, the plaintiff is legally entitled to the relief sought. Everything on Wheels , 616 So.2d 1234. Conclusory allegations unsupported by facts are insufficient to support a cause of action. Ramey , 869 So.2d 114.

I. Detrimental Reliance Lawsuit.

Detrimental reliance is a doctrine designed to prevent injustice by barring a party from taking a position contrary to his prior acts, admissions, representations, or silence. Luther v. IOM Co., LLC , 13-353 (La. 10/15/13), 130 So.3d 817. Detrimental reliance is codified under La.Civ.Code art. 1967, which states:

Cause is the reason why a party obligates himself.
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 promisee's reliance on the promise. Reliance on a gratuitous promise made without required formalities is not reasonable.

The Louisiana Supreme Court in Luther , 130 So.3d at 825, explained detrimental reliance as follows:

The doctrine of detrimental reliance is designed to prevent injustice by barring a party from taking a position contrary to his prior acts, admissions, representations, or silence. To establish detrimental reliance, a party must prove three elements by a preponderance of the evidence: (1) a representation by conduct or word; (2) justifiable reliance; and (3) a change in position to one's detriment because of the reliance. Suire v. Lafayette City-Parish Consolidated Government , 2004-1459 (La. 4/12/05), 907 So.2d 37, 59. Estoppels are not favored in our law; therefore, a party cannot avail himself of that doctrine if he fails to prove all essential elements of the plea. See Wilkinson v. Wilkinson , 323 So.2d 120, 126 (La.1975).

A review of the petition indicates GRR pled allegations that Santillo agreed to a settlement in principle, of which terms had been discussed and reduced to writing in an email sent by counsel for Santillo. The following pleadings were set forth in GRR's petition:

4.
On or about November 23, 2017, MS. SANTILLO promised to representatives of GRR that she would agree to exchange her ownership interest in the Blue Dog Café restaurant in Lafayette in exchange for a profits interest in a new, re-formed entity which owned both Blue Dog Cafes in Lafayette and Lake Charles (collectively, the "Restaurants").
5.
MS. SANTILLO's promise was with the full knowledge and information that the November 23, 2017 agreement included as a term the confection of a settlement of her 2016 lawsuit alleging breach of fiduciary duties against Blue Collar Enterprises (hereinafter, "Blue Collar"), which owns the Blue Dog Café in Lafayette, and would immediately induce GRR to expend substantial funds on the Restaurants to save both of them from immediate insolvency, and would begin the process of growing the Restaurants profitability.
21.
On November 23, 2017, via e-mail, counsel for MS. SANTILLO agreed to accept a 6% profits interest in exchange for settling the Santillo Action, and encompassing the form and terms of the November 14, 2017 letter (the "Agreement").

The above paragraphs sufficiently meet element one of detrimental reliance, a "representation by conduct or word." Suire , 907 So.2d at 59. Those allegations set forth the email where Ms. Santillo allegedly represented she would settle the Santillo Action and exchange an interest in an entity called "Blue Collar" for an interest in a new entity as part of an overall structure. The petition sets forth that Santillo was proposed those terms and represented through her counsel her agreement to accept. This amounts to a "representation by word or conduct" sufficient to establish a cause of action for detrimental reliance.

The second element in detrimental reliance is "justifiable reliance." A review of the petition establishes in Paragraphs 22 through 27 that GRR would be "immediately infus[ing] [money] into the Restaurants, relying on MS. SANTILLO's Agreement and representation that she would cooperate and exchange her ownership interest in Blue Collar for a profits interest" in the new entity. The petition further alleged "MS. SANTILLO knew, or had been appropriately informed, that when agreeing to the proposal on November 23, 2017 that the Restaurants were sure to fail and be insolvent immediately unless someone advanced funds for the insolvent restaurants." In Paragraph 26 of the petition GRR alleged "[i]n reliance on MS. SANTILLO's Agreement, GRR infused nearly $ 200,000 into the Restaurants in order for them to remain solvent, and continues infusing money to date." Accordingly, we find the trial court did not err in finding GRR pled sufficient factual allegations to establish the second element, "justifiable reliance."

The third element to be proven to support a detrimental reliance claim is "a change in position to one's detriment because of the reliance." GRR's petition sets forth that it invested significant funds into the Restaurants in question as a result of Santillo's representations. Paragraph 31 of GRR's petition stated:

GRR, justifiably relying on MS. SANTILLO's good faith promise to settle the Santillo Action and exchange her operating interest in a failing entity for a profits interest in well-capitalized one, has advanced significant capital, hired an independent consultant at the cost of $ 150,000 to reevaluate the offerings and streamline the business for both Restaurants, and hired a culinary director to revamp the menu of the Restaurants, expending significant funds.

Paragraph 33 specifically alleged the "significant infusion of capital made by GRR... would not have occurred without MS. SANTILLO's promise." A review of the petition establishes GRR pled factual allegations supporting the third element required for a detrimental reliance claim.

Accordingly, as the factual allegations pled in GRR's petition support all three elements of its detrimental reliance claim, we find the trial court correctly denied Santillo's exception of no cause of action.

We also note Santillo argued that a detrimental reliance claim must be based on a binding, written settlement agreement. However, La.Civ.Code art. 1967 plainly says "[a] party may be obligated by a promise." This court in Morris v. People's Bank & Trust Co. of Natchitoches , 580 So.2d 1029, 1036 (La.App. 3 Cir.), writs denied , 588 So.2d 101, 102 (La.1991) stated that "La.[Civ.Code] art. 1967 does not require the existence of a formal, valid, or enforceable contract in order for detrimental reliance to occur." We further explained:

[T]he basis of detrimental reliance is not the intent to be bound, since detrimental reliance is not really contractual in nature. It is based on the idea that a person should not harm another person by making promises that he will not keep. The question is not whether the promisor really intended to perform what he promised, rather it is whether the promise was made in such a manner that the promisor knew or should have known that the promisee would rely upon it, and if so, whether the promisee has in fact reasonably relied upon the promise and been damaged thereby. When the promisee can prove all of these elements[,] he has shown that the promisor has dealt him an injustice, and the court should be free to remedy the injustice suffered by the promisee.

Id.

Citing with approval our decision in Morris , this court in Dugas v. Guillory , 97-398, p. 11 (La.App. 3 Cir. 10/7/98), 719 So.2d 719, 725, further explained:

Since the enactment of La.Civ.Code art.1967, Louisiana courts have found detrimental reliance to occur despite the fact an onerous contract may lack a requisite formality, such as written execution in authentic form, provided the requirements of La.Civ.Code art.1967 are satisfied. See Morris , 580 So.2d 1029. Under La.Civ.Code art.1967, the only requirements necessary to maintain a detrimental reliance claim are the existence of a promise and an individual's reasonable reliance thereon that promise to his detriment. Id.

The Louisiana Supreme Court in Suire , 907 So.2d 37, 59, citing this court's statement in Morris , stated "to prevail on a detrimental reliance claim, Louisiana law does not require proof of a formal, valid, and enforceable contract." It further noted:

[T]he focus of analysis of a detrimental reliance claim is not whether the parties intended to perform, but, instead, whether a representation was made in such a manner that the promisor should have expected the promisee to rely upon it, and whether the promisee so relies to his detriment. Therefore, we reject the City's argument that Suire's detrimental reliance claim should be dismissed as a matter of law because Suire cannot establish a valid, enforceable contract.

Id (citation omitted).

Thus, Santillo's position that a binding, written contract is required for a detrimental reliance claim is contrary to well-established law in this state. Accepting the well-pleaded allegations of fact in the petition as true, we find GRR sufficiently pled facts to establish a cause of action for detrimental reliance. Accordingly, the trial court correctly denied Santillo's exception of no cause of action.

II. Abuse of Process.

Santillo maintains the trial court erred in granting GRR and Sternberg's exception of no cause of action as to its abuse of process claim asserted in its reconventional demand.

In Simon v. Perret , 619 So.2d 155, 157 (La.App. 3 Cir.1993), this court noted "[a]buse of process is a cause of action originating from the common law and recognized under our jurisprudence as a compensable tort under [La.Civ.Code] art. 2315." In Stark v. Eunice Superette, Inc. , 457 So.2d 291, 295 (La.App. 3 Cir. 1984), writ denied , 461 So.2d 316 (La.1984) (citations omitted), we discussed the elements of abuse of process:

The two essential elements of abuse of process are: (1) an ulterior purpose and (2) a wilful act in the use of the process not proper in regular conduct of the proceeding. It involves the misuse of a process already legally issued whereby a party attempts to obtain some result not proper under law.

In their third-party demand petition, Santillo set forth the following pertinent assertions to allege an abuse of process occurred:

38.
Thereafter, on January 22, 2018, the Reconventional and Third-Party Defendants filed the original petition in an abuse of the litigation process to attempt to coerce and intimidate, and/or punish Main Defendants and to attempt to force them to change their positions on settlement of the Santillo Action and the sale of Defendant Santillo LLC's Blue Collar Interest.
39.
Reconventional and Third-Party Defendants made sure that Main Defendants and their Santillo Action Counsel were aware of the filing of this new retaliatory lawsuit on the date it was filed, January 22, 2018, by forwarding same on that date via email to Main Defendants' Santillo Action Counsel.
40.
Nine days later, on January 31, 2018. Sternberg, on behalf of his Reconventional and Third-Party Defendant clients, invited a lower settlement demand from Main Defendants in a letter to Main Defendants' Santillo Action Counsel. Thereby Sternberg demonstrated his and his clients' belief that this retaliatory litigation would have the desired coercive and intimidating effect on Main Defendants by forcing Main Defendants to lower its settlement demand without a counter-offer, which is exactly what they intended to achieve through this abusive lawsuit. And their Santillo Action Counsel were aware of the filing of this new retaliatory lawsuit on the date it was filed, January 22, 2018, by forwarding same on that date via email to Main Defendants' Santillo Action Counsel.
41.
The original petition is a sanctionable abuse of process designed to coerce, intimidate, punish and retaliate against Main Defendants for refusing to sign documents prepared by these same parties, which were markedly different from the proposed terms and conditions of the settlement and sale of November 14, 2017, which Main Defendants had simply agreed to consider when placed in writing.

After reviewing the third-party demand, we find the trial court did not err in finding Santillo's pleadings did not meet either of the essential elements of a claim for abuse of process. Santillo alleged GRR's and Sternberg's ulterior motive was to "coerce and intimidate, and/or punish ... and to attempt to force them to change their positions on settlement." As GRR notes, Santillo argues primarily that the detrimental reliance lawsuit has no legal merit. However, that argument alone is not a valid basis for an abuse of process claim. If so, a simple denial of liability could always give rise to a cause of action for abuse of process. Moreover, we affirmed the trial court's ruling that GRR's petition stated a valid cause of action for detrimental reliance, which refutes Santillo's claim that the lawsuit has no merit.

Santillo also did not plead any factual allegations alleging GRR and Sternberg committed an "improper use of process" in the filing of the detrimental reliance lawsuit. Improper use of process "refers to a failure to comply with the proper procedures or rules set out by law for conducting official actions." Taylor v. State , 617 So.2d 1198, 1205-06 (La.App. 3 Cir. 1993), writ denied , 620 So.2d 875 (La.1993). This court in Hebert v. La. Licensed Prof'l Vocational Rehab. Counselors , 07-610, p. 9 (La.App. 3 Cir. 3/4/09), 4 So.3d 1002, 1009, writs denied , 09-750, 09-753 (La. 5/22/09), 9 So.3d 144, (citing Law of Torts, Volume I, § 4.9, Harper and James) (alterations in original), further stated:

"The action is not for the wrongful bringing of an action or prosecution, but for the improper use, or rather 'abuse' of process in connection therewith ... [that is], for a perversion of legal process." Id. The wrong lies in the use to which the process is put. If it is in fact used to redress a legal wrong, the person who invoked the legal process cannot be said to have committed any tort, even if his motive was vicious or vindictive. However, when he seeks by the use of such process to "attain some collateral objective, outside the scope of the operation of the process employed," a tort arises.

As GRR and Sternberg note, there was no allegation made that any judicial rules or procedures were violated. Santillo's argument is based on its contention that the detrimental reliance lawsuit has no legal merit. Santillo bases that position on its belief that "promises cannot possibly form the basis of a detrimental reliance cause of action." As we set forth earlier, that is an erroneous statement of the law. This court in Dugas v. Guillory , 719 So.2d at 725, noted "[u]nder La.Civ.Code art. 1967, the only requirements necessary to maintain a detrimental reliance claim are the existence of a promise and an individual's reasonable reliance thereon that promise to his detriment." Similarly, the Louisiana Supreme Court, in Suire , 907 So.2d at 59, citing this court in Morris v. People's Bank & Trust Co. , 580 So.2d 1029 (La.App. 3 Cir.), writ denied , 588 So.2d 102 (La.1991), stated "to prevail on a detrimental reliance claim, Louisiana law does not require proof of a formal, valid, and enforceable contract."

For the reasons set forth above, we find Santillo's reconventional demand did not include factual allegations supporting the claim that GRR and Sternberg committed an abuse of process. The trial court did not err in granting GRR and Sternberg's exception of no cause of action.

III. LUTPA Claim.

Santillo next maintains the trial court erred in finding its reconventional demand failed to state an actionable claim for alleged violations of LUTPA. The Louisiana Supreme Court in Quality Environmental Processes, Inc. v. I.P. Petroleum Co. , 13-1582, 13-1588, 13-1703, p. 2 (La. 5/7/14), 144 So.3d 1011, 1025 (alterations in original), discussed LUTPA as follows:

In LUTPA, the legislature declared it to be unlawful to engage in "unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce." La.Rev.Stat. § 51:1405. Because of the broad sweep of this language, "Louisiana courts determine what is a LUTPA violation on a case-by-case basis." Keith E. Andrews, Comment, Louisiana Unfair Trade Practices Act: Broad Language and Generous Remedies Supplemented by a Confusing Body of Case Law , 41 Loy. L.Rev. 759, 762 (1996) (hereinafter "Andrews"). This court has consistently held that in establishing a LUTPA claim, a plaintiff must show that "the alleged conduct offends established public policy and is immoral, unethical, oppressive, unscrupulous, or substantially injurious." Cheramie Services, Inc. v. Shell Deepwater Prod. , 09-1633, p. 11 (La. 4/23/10), 35 So.3d 1053, 1059. "[T]he range of prohibited practices under LUTPA is extremely narrow," as LUTPA prohibits only fraud, misrepresentation, and similar conduct, and not mere negligence. Id. at 11, 35 So.3d at 1059 ; Andrews, 41 Loy. L.Rev. at 763. Moreover, conduct that offends established public policy and is unethical is not necessarily a violation under LUTPA. See, e.g., Cheramie Services , 09-1633 at 12, 35 So.3d at 1060 ("[O]nly egregious actions involving elements of fraud, misrepresentation, deception, or other unethical conduct will be sanctioned based on LUTPA."); Vermilion Hosp., Inc. v. Patout , 05-82, p. 6 (La.App. 3 Cir. 6/8/05), 906 So.2d 688, 693 (noting that not all violations of the Louisiana Code of Ethics give rise to a cause of action under LUTPA and that persons aggrieved by such violations of the code of ethics are permitted to file a complaint with the Louisiana Board of Ethics or seek remedies under other statutes).

The trial court noted that Santillo's "abuse of process claim ... and unfair trade practice [claim] go hand in hand." Similarly, Santillo asserted in brief that the same abuse of process allegations "were also sufficient to support [its] claims of LUTPA violations against [GRR and Sternberg] where these facts allege that [GRR and Sternberg] used this new lawsuit filed against [Santillo] for the ulterior purpose of causing [Santillo] 'intentional distress' 'and to incur unnecessary attorney's fees and expenses.' " Finding Santillo failed to assert a viable abuse of process claim, the trial court correctly found the LUTPA claims were not viable.

GRR also notes the supreme court in Quality Environmental, 144 So.3d at 1026, stated LUTPA has a "narrow goal of protecting against egregious actions of fraudulent, deceitful, and unfair business practices to promote and foster healthy and fair business competition." The court went on to say the "However, the goals of LUTPA were not intended to ensure ethical and fair cooperation between attorneys litigating a case." Id. The court concluded "actions do not rise to the level of a violation of LUTPA, even [if] they may violate rules pertaining to discovery or ethical conduct. See Thibaut, Thibaut, Garrett and Bacot v. Smith and Loveless, Inc. , 576 So.2d 532, 537 (La.App. 1st Cir.1990) (LUTPA is an act of the legislature and cannot be applied to regulate or define the practice of law, including the conduct of attorneys)." Id. The court ruled such actions by an attorney "are more appropriately governed by our Code of Civil Procedure's discovery rules, which are meant to afford all parties to a lawsuit full and fair opportunities to obtain facts pertinent to the litigation." Id.

We find no merit in Santillo's argument that LUTPA applies to an attorney who files a petition for damages on behalf of his client. The filing of a detrimental reliance lawsuit does not offend "established public policy and is immoral, unethical, oppressive, unscrupulous, or substantially injurious." See Cheramie Services, Inc. v. Shell Deepwater Prod. , 09-1633, p. 11 (La. 4/23/10), 35 So.3d 1053, 1059. In Newton v. Brenan , 14-423 (La. App. 5 Cir. 12/16/14), 166 So.3d 285, the defendant therein reconvened and filed a LUTPA claim asserting the plaintiff's lawsuit was merely retaliatory because the defendant had enforced a non-compete agreement between the parties. The court held the act of filing a lawsuit did not rise to the level of an unfair trade practice. The Newton court, citing Quality Environmental , stated as follows:

while the lawsuit filed by [plaintiff] ... was arguably the result of months of rancorous disputes between the parties, a review of the record reveals that [plaintiff] may arguably have some cognizable legal claims against [defendant] and his family members. [Plaintiff's] effort to exercise his juridical rights in connection with these claims is not an unfair trade practice under LUTPA.

Id. at 289. Similarly, we find GRR's attempt to exercise its juridical rights by filing its detrimental reliance lawsuit is not an unfair trade practice under LUTPA.

Lastly, Santillo argues that LUTPA claims cannot be dismissed by an exception of no cause of action because a "LUTPA violation is a subjective one for the fact finder's determination." We disagree. Obviously, on an exception of no cause of action, well-pleaded allegations of fact are accepted as true. Thus, there is no weighing of facts by the fact finder at that stage of the proceedings. The trial court's only inquiry is to test the legal sufficiency of the petition by determining whether the law affords a remedy on the facts alleged in the pleadings. Further, this court has routinely affirmed the dismissal of LUTPA claims via exceptions of no cause of action. See Washington Mut. Bank v. Monticello , 07-1018 (La.App. 3 Cir. 2/6/08), 976 So.2d 251, 255, writ denied , 08-530 (La. 4/25/08), 978 So.2d 369 ; Southern General Agency, Inc. v. Safeway Ins. Co. of Louisiana , 99-1892 (La.App. 3 Cir. 6/7/00), 769 So.2d 606, writ denied , 00-2055 (La. 10/6/00), 771 So.2d 89.

DECREE

For the foregoing reasons, Santillo's writ application, docket number 18-637, is denied. The trial court did not err in denying Santillo's exception of no cause of action as to GRR's detrimental reliance lawsuit. In docket number 18-702, we affirm the trial court's granting of GRR and Sternberg's exceptions of no cause of action as to Santillo's abuse of process claim and to Santillo's claims that GRR violated LUTPA. All costs of these appeals are assessed to Suzanne Savoy Santillo, LLC and Suzanne Savoy Santillo.

WRIT DENIED; AFFIRMED.

      Santillo also argued the sending of a "courtesy copy" of GRR's petition to Santillo's counsel and Sternberg, on behalf of GRR, "invit[ing] a lower settlement demand" is proof of GRR's ulterior motive in filing its detrimental reliance lawsuit. We find no error in the trial court's finding that neither allegation is evidence of an ulterior motive.