text:
    GRAMBLING STATE UNIVERSITY, Plaintiff-Appellant v. Martha WALKER, Defendant-Appellee.
    No. 44,995-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    March 3, 2010.

      James D. “Buddy” CALDWELL Attorney General, for Appellant.
    Eddie David Gilmer, Assistant Attorney General, William R. Long, for Appellee.
    Before BROWN, STEWART and CARAWAY, JJ.
   STEWART, J.

11 Plaintiff-Appellant, the State of Louisiana, through Grambling State University (“Grambling”), is appealing a written judgment rendered in favor of Defendant-Ap-pellee, Martha Walker. For the following reasons, we affirm the lower court’s judgment denying the state’s request for a second medical opinion and its determination that the requirement to complete a Choice of Physician form pursuant to La. R.S. 23:1121(B) was inapplicable.

Facts

Ms. Walker was injured in three different accidents while working as a cook at Grambling. The first accident occurred in 1987, the second on November 16, 1990, and the third on September 9, 1992. The third accident is the accident that gives rise to this matter. All three claims were assigned to Freddie Adkins, who is an adjuster for the State of Louisiana, Office of Risk Management.

Ms. Walker received medical care from a neurologist, Dr. Warren Long, for her second and third accidents. During Ms. Walker’s treatment for her third injury, Dr. Long referred her to a rheumatologist, Dr. Christopher D. Burda. Dr. Burda died after the trial of this claim, and Dr. Long is currently treating her.

In May of 2006, the Office of Risk Management requested that Ms. Walker submit to a medical examination, which was represented to be a second medical opinion in order to determine what part of her current condition resulted from her work-related accident that occurred on September 9,1992. Ms. Walker refused to submit to the second medical |2opinion because she alleged that the Office of Risk Management had chosen the physicians who treated her. As a result, the state filed a disputed claim for compensation against Ms. Walker on October 2, 2006, seeking compliance with the request for the second medical opinion. Additionally, Grambling contended that Ms. Walker was required to execute a Choice of Physician form, and upon her refusal to do so, her medical benefits should be suspended pursuant to La. R.S. 23:1121(B). The trial for this matter was held on June 12, 2008.

Ms. Barbara Rachel, the state claims adjuster assigned to Ms. Walker’s claim in August of 2003, after Mr. Adkins death, testified that Ms. Walker was under the medical care of Dr. Long prior to her third accident. She further testified that Ms. Walker’s file did not contain any documentation that she was instructed by the state to seek medical treatment from Dr. Long.

Ms. Suzanne Mitton, who is a medical case manager and rehabilitation counselor who is currently employed by Thomas and Associates, testified that she was hired by the state in 2006, to schedule the second opinion appointment with an orthopaedic doctor and a rheumatologist for Ms. Walker. After arranging the second opinion appointments with an orthopaedic doctor, Dr. Gordon Mead, and a rheumatologist, Dr. Merlin Wilson, she advised Ms. Walker and her attorney of these appointments. Ms. Mitton testified that she received correspondence from Ms. Walker’s counsel indicating that she would not be submitting to the medical examinations for the second medical opinion |sbecause all of her doctors were chosen by the state. Ms. Mitton then informed the state adjuster assigned to Ms. Walker’s claim, Ms. Barbara Rachel, of Ms. Walker’s response. Ms. Rachel instructed Ms. Mitton to reschedule the second opinion appointments. Ms. Mitton made a second attempt to schedule a second opinion, but Ms. Walker did not comply with the attempt.

After reviewing the file information provided by the state upon hire, Ms. Mitton testified that she failed to find any documentation indicating that Grambling referred or instructed Ms. Walker to go and seek medical treatment from Dr. Long in connection with the third work-related accident that occurred on September 9,1992. Additionally, Grambling argued that Ms. Walker’s medical records indicate that she was under the medical care of Dr. Long prior to the September 9, 1992, accident. The medical records reveal that Ms. Walker was referred by Dr. Raymond Dennie to Dr. Long for a neurological consultation on December 4, 1990, after the second accident that occurred on November 16, 1990. She was seen by Dr. Long on several occasions between December 4, 1990, to November 24,1992.

Dr. Long’s testimony was introduced via deposition. In his deposition, he admitted that Ms. Walker sought medical treatment from him from December 4, 1990, to November 24, 1992, in connection with the second and third accident.

Ms. Walker testified that she was referred to Dr. Long by the state’s previous claims adjuster, Mr. Freddie Adkins. She alleges that Mr. Adkins’ office always arranged her appointments with Dr. Long and contacted her 14by telephone to inform her of the upcoming appointments. She denied ever requesting any appointments with Dr. Long.

On August 25, 2009, Worker’s Compensation Judge Ryan Gatti (“WCJ”), issued a judgment denying the state’s request for a second medical opinion, after determining that Dr. Long was its choice of physician. Therefore, a suspension of benefits was unwarranted. Additionally, the WCJ determined that the requirement to complete a Choice of Physician form pursuant to La. R.S. 23:1121(B) was inapplicable because that portion was not effective at the time that the accident occurred. The state has filed the instant appeal.

Law and Discussion

Right to Compensation

Grambling asserts two assignments of error in its appeal. In the first assignment, it contends that the WCJ erred in failing to grant its claim to suspend Ms. Walker’s right to compensation and in failing to initiate any further proceedings for her refusal to submit to the medical examination.

Grambling asserts that it did not instruct Ms. Walker to seek Dr. Long for medical treatment. Therefore, it is entitled to a second medical opinion because Ms. Walker has not been seen by a physician of its choice.

Factual findings in worker’s compensation cases are subject to the manifest error or clearly wrong standard of appellate review. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La.7/1/97), 696 So.2d 551. In applying the manifest error-clearly wrong standard, the appellate court does not determine whether the trier of fact was right or |flwrong, but determines whether the factfinder’s conclusion was a reasonable one. Id. Where there are two permissible views of evidence, a factfinder’s choice between them can never be manifestly erroneous or clearly wrong. Thus, if the factfinder’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106 (La.1990).

La. R.S. 23:1121 states:

A. An injured employee shall submit himself to an examination by a duly qualified medical practitioner provided and paid for by the employer, as soon after the accident as demanded, and from time to time thereafter as often as may be reasonably necessary and at reasonable hours and places, during the pendency of his claim for compensation or during the receipt by him of payments under this Chapter. The employer or his worker’s compensation carrier shall not require the employee to be examined by more than one duly qualified medical practitioner in any one field or specialty unless prior consent has been obtained from the employee.
B. The employee shall have the right to select one treating physician in any field or specialty. The employee shall have a right to the type of summary proceeding provided for in R.S. 23:1124(B), when denied his right to an initial physician of choice. After his initial choice the employee shall obtain pri- or consent from the employer or his workers’ compensation carrier for a change of treating physician within that same field or specialty. The employee, however, is not required to obtain approval for change to a treating physician in another field or specialty.

In the instant case, the record indicates that Dr. Warren Long treated Ms. Walker for her work-related accident that occurred on September 9, 1992. In fact, Dr. Long testified in his deposition that he treated her from December 4, 1990 to November 24, 1992, at which time he referred her to | (iDr. Burda. He also stated that his initial report concerning Ms. Walker was copied to the “Office of Risk Management, Attn: Freddie Adkins.”

As mentioned in the facts section above, Ms. Walker contends that the state selected Dr. Long at the onset of this claim. Ms. Walker testified that Freddie Adkins, who was an adjuster for the Office of Risk Management, called her to authorize, approve and schedule an appointment with Dr. Long. She even mentioned that he scheduled her appointments for all three work-related accidents. After reviewing Ms. Walker’s uncontroverted testimony, we agree that Grambling is not entitled to a second medical opinion at this time and that Grambling’s choice of physician was Dr. Warren Long.

Additionally, jurisprudence states that if the claimant failed to properly submit to a second medical opinion evaluation by the employer/insurer, the remedy is to seek a judicial order directing such an evaluation based on the reasonableness of the request. An employer is not entitled to suspend a disabled employee’s right to compensation for the employee’s failure to report for a medical examination, except where such medical examination has pi’evi-ously been judicially determined to be reasonable. Seaberry v. T.G. & Y Stores Company, 467 So.2d 12 (La.App. 1st Cir. 1985); Richardson v. Weitz Company, 202 So.2d 361 (La.App. 1st Cir.1967). The suspension of the right to compensation is a drastic remedy that should not be performed without a contradictory hearing under these facts. Seaberry, supra.

|7The state has not addressed the reasonableness of its request. Ms. Rachel testified that Kim Monsour, a nurse case manager for Thomas and Associates hired by the Office of Risk Management under the direction of Mr. Freddie Adkins, had a conference with Dr. C.D. Burda. She also stated that there was documentation which indicated Dr. Burda informed Ms. Mons-our that Ms. Walker was permanently and totally disabled as a result of her medical condition. Ms. Rachel’s uncontradicted testimony provides a clear indication that Grambling’s request is unreasonable because Ms. Walker’s disabling condition has been labeled as permanent and total. Grambling has not provided any explanation justifying a new medical examination. Accordingly, we find that this assignment of error lacks merit.

Choice of Physician Form

In the second assignment of error, the state asserts that the WCJ erred in not granting its claim for suspension of Ms. Walker’s medical benefits for refusing and/or failing to sign a Choice of Physician form pursuant to La. R.S. 23:1121(B). The state asserts that since a clear determination cannot be made as to who selected the doctors who treated Ms. Walker, La. R.S. 23:1121 is applicable.

La. R.S. 23:1121 (B)(2)(a) and (b) states in pertinent part:

(2)(a) If the employee is treated by any physician to whom he is not specifically directed by the employer or insurer, that physician shall be regarded as his choice of treating physician.
(b) When the employee is specifically directed to a physician by the employer or insurer, that physician may also be deemed as the employee’s choice of physician, if the employee has received written notice of his right to select one treating physician in any field or specialty, and then chooses to select the employer’s referral as his treating specialist after the initial | ^medical examination as signified by his signature on a choice of physician form. The notice required by this Subparagraph shall be on a choice of physician form promulgated by the director of the office of worker’s compensation and shall contain the notice of the employees rights provided under R.S. 23:1121(B)(1). Such form shall be provided to the employee either in person or by certified mail.
* ⅜ * ⅜ * :¡c * * * *
(5) If the employee fails or refuses to sign the form as provided in Subpara-graph (2)(b) and Paragraph (3) of this Subsection, the employer or his insurer shall be entitled to seek an expedited hearing to be held within ten days, and upon order of the court, may suspend medical benefits until such time as the employee complies with Subparagraph (2)(b) and Paragraph (3) of this Subsection.

The state argues that Ms. Walker’s benefits should be suspended since she refused to sign a Choice of Physician form as required by La. R.S. 23:1121(B). After reviewing this statute, we discovered that this requirement was not added to this statute and made effective until August 15, 2003.

If an act creates a new obligation where no such obligation existed before, the act is substantive. River Cities Construction Company, Inc. v. Barnard & Burk, Inc., 444 So.2d 1260 (La.App. 1 Cir. 1983). In the absence of contrary legislative expression, substantive laws apply prospectively only. La. C.C. art. 6. “Substantive laws,” for purposes of determining whether a law should be applied retroactively, are those which establish new rules, rights, and duties, or change existing ones. Brown v. Schwegmann, 2007-0210 (La.App. 4th Cir.7/30/08), 990 So.2d 1282.

Therefore, only the law and jurisprudence that existed in 1992 is applicable to her claim and not the subsequent amendments to La. R.S. lc|23:1121. As such, Ms. Walker is not required to complete a Choice of Physician form. This assignment of error bears no merit.

CONCLUSION

For the above mentioned reasons, the WCJ’s judgment is affirmed.

AFFIRMED.


source: Caselaw Access Project

author: WILLIAMS, J.

license: Public Domain

text:
    ESTATE OF Mary Alice ROBINSON, Plaintiff-Respondent v. CONTINENTAL CASUALTY COMPANY, et al., Defendant-Applicant.
    No. 44,952-CW.
    Court of Appeal of Louisiana, Second Circuit.
    March 3, 2010.

      Troy A. Broussard, for Applicant.
    Harold J. Adkins, Jon K. Guice, Linda K. Ewbank, for Respondent.
    Before BROWN, WILLIAMS and MOORE, JJ.
   WILLIAMS, J.

hWe granted this application for supervisory review filed by the defendants, Continental Casualty Company, Guerriero & Guerriero, LLC and Joe D. Guerriero, to determine the correctness of the district court’s denial of the defendants’ motion for summary judgment. Finding error in the trial court’s ruling, we reverse.

FACTS

On April 15, 2005, Mary Robinson allegedly tripped, fell and injured herself at the Cotton Port Apartments in West Monroe, Louisiana. She retained attorney Joe Gu-erriero and the law firm of Guerriero & Guerriero, LLC (collectively “Guerriero”) to represent her in a lawsuit against the apartment complex. Guerriero did not file a lawsuit within one year of the accident. In June 2006, Guerriero informed Ms. Robinson that her claim had prescribed because no lawsuit had been filed. Several months later, on October 2, 2006, Ms. Robinson committed suicide.

On April 12, 2007, the “Estate of Mary Alice Robinson, appearing herein through its duly appointed representative, Debra Kay Murray” filed the instant legal malpractice lawsuit against Guerriero and his legal malpractice insurer, Continental Casualty Company. In its petition, the estate alleged that Guerriero’s “failure to file a lawsuit on behalf of the decedent constitutes legal malpractice and entitles her succession to an award of such damages to which she would have been entitled against the original tortfeasor together with such damages as may flow from the act of malpractice.” The petition did not name Ms. Murray as a plaintiff in her individual capacity.

|2On October 1, 2007, a “First Amended and Restated Petition” was filed. The petition named as plaintiffs the decedent’s major children, “George Robinson and Debra Kay Murray, individually, and as the duly-appointed representative[s] of the Estate of Mary Alice Robinson.” In addition to the claim for legal malpractice, the plaintiffs asserted a wrongful death claim, alleging that the defendants’ “acts of negligence ultimately lead [sic] to the untimely death of Ms. Robinson.”

In February 2009, the defendants filed a motion for summary judgment and, in the alternative, partial summary judgment. The defendants argued that (1) the “Estate of Mary Alice Robinson” had no right to bring the action; and (2) the claims of the decedent’s major children were per-empted pursuant to LSA-R.S. 9:5606. In the alternative, the defendants argued that they were entitled to summary judgment because (1) the wrongful death claims did not prescribe during Guerriero’s representation; and (2) the plaintiffs failed to present any evidence to show that the alleged legal malpractice caused the decedent to commit suicide.

The plaintiffs opposed the motion for summary judgment, arguing that Ms. Murray was a proper plaintiff to bring the lawsuit in April 2007 because she was the representative of the estate as well as the decedent’s surviving child. The plaintiffs also asserted that defendants were aware of the existence of Ms. Murray prior to the decedent’s death and, therefore, the amended petition related back to the date of the original petition.

The district court denied summary judgment stating:

[T]his Court finds genuine issues of material fact remain and, thus, the moving party is not entitled to judgment as |sa matter of law. More particularly, this Court concludes that Article 685 is applicable. Further, genuine issues remain as to the legal effect of the legal malpractice on Mary’s mental health, and whether the effects caused her to commit suicide.

The court did not address the defendants’ argument with regard to peremption.

DISCUSSION

Legal Malpractice/Survival Action

The defendants contend the decedent’s estate did not have a legal right to institute the survival action because the decedent had living children who had the exclusive right to bring the action. In support of their argument, the defendants cite LSA-C.C. art. 2315.1, which provides for the classes of plaintiffs who have the right to bring a survival action.

LSA-C.C. art. 2315.1 provides, in pertinent part:

A. If a person who has been injured by an offense or quasi offense dies, the right to recover all damages for injury to that person, his property or otherwise, caused by the offense or quasi offense, shall survive for a period of one year from the death of the deceased in favor of:
(1) The surviving spouse and child or children of the deceased, or either the spouse or the child or children.
(2) The surviving father and mother of the deceased, or either of them if he left no spouse or child surviving.
(3) The surviving brothers and sisters of the deceased, or any of them, if he left no spouse, child, or parent surviving.
(4) The surviving grandfathers and grandmothers of the deceased, or any of them, if he left no spouse, child, parent, or sibling surviving.
B. In addition, the right to recover all damages for injury to the deceased, his property or otherwise, caused by the 14 offense or quasi offense, may be urged by the deceased’s succession representative in the absence of any class of beneficiary set out in Paragraph A.

Citing LSA-C.C.P. art. 685, the plaintiffs argue that the succession representative was the proper party to bring the survival action. LSA-C.C.P. art. 685 provides:

Except as otherwise provided by law, the succession representative appointed by a court of this state is the proper plaintiff to sue to enforce a right of the deceased or of his succession, while the latter is under administration. The heirs or legatees of the deceased, whether present or represented in the state or not, need not be joined as parties, whether the action is personal, real, or mixed.

In Haas v. Baton Rouge General Hospital, 364 So.2d 944 (La.1978), a woman was injured during her stay in the hospital. She subsequently died without filing suit against the hospital. She left a surviving husband, but no children. The husband also died without filing suit against the hospital. After the death of the husband, the administrator of the woman’s estate and the testamentary executor of the husband’s estate (the same person) filed a survival action against the hospital in his representative capacity. The hospital filed an exception of no right of action which the trial court and appellate court sustained. The Supreme Court reversed, finding that the executor of the husband’s estate was the proper party plaintiff. The Court stated:

[T]he right to recover damages (other than property damages) caused by an offense, upon the death of the injured person, shall survive for a period of one year from the death of the deceased in favor of certain designated beneficiaries. The right of action does not Lpass through the victim’s succession to be transmitted to his heirs as an inheritance. Instead, it devolves exclusively upon specially designated classes of beneficiaries or survivors set forth in said article. Therefore, in the instant case, upon the death of [the] tort victim, the right to recover damages for the personal injuries sustained by her as a result of the alleged offense survived solely in favor of her spouse ... in view of the fact that [the tort victim] died without children. Hence, the succession representative of the tort victim’s estate has no right to bring the action to recover damages for the personal injuries sustained by the tort victim.

Id. at 945.

In the instant case, the decedent had surviving children, and the survival action devolved exclusively upon the surviving children as set forth in LSA-C.C. art. 2315.1. Therefore, upon her death, the right to recover damages for the personal injuries she sustained as a result of her fall at the apartment complex, as well as for any damages sustained as a result of legal malpractice, survived solely in favor of her children. Although Ms. Murray filed the April 2007 lawsuit, she did not appear in her individual capacity. Therefore, we find that the district court erred in concluding that the succession had a right of action pursuant to LSA-C.C.P. art. 685. This article begins with the statement, “Except as otherwise provided by law[.]” Thus, the application of Article 685 is limited by LSA-C.C. art. 2315.1, which specifically addresses the proper parties to enforce the rights of a deceased person. Accordingly, we find that the district court erred in concluding that LSA-C.C.P. art. 685 was applicable to the facts of this case.

Survival Action/Peremption

The defendants also contend the amendment to the petition, adding Ms. Murray and Mr. Robinson as plaintiffs in their individual capacities, is [fibarred by peremption. The defendants argue that the one-year peremptive period for filing a legal malpractice action commenced in June 2006, when the decedent received notice that her claim against the apartment complex had prescribed. The petition was not amended to add her children as plaintiffs until October 1, 2007.

LSA-R.S. 9:5605 provides, in pertinent part:

A. No action for damages against any attorney at law duly admitted to practice in this state, any partnership of such attorneys at law, ... whether based upon tort, or breach of contract, or otherwise, arising out of an engagement to provide legal services shall be brought unless filed in a court of competent jurisdiction and proper venue within one year from the date of the alleged act, omission, or neglect, or within one year from the date that the alleged act, omission, or neglect is discovered or should have been discovered; however, even as to actions filed within one year from the date of such discovery, in all events such actions shall be filed at the latest within three years from the date of the alleged act, omission, or neglect.
B. [T]he one-year and three-year periods of limitation provided in. Subsection A of this Section are peremptive periods within the meaning of Civil Code Article 3458 and, in accordance with Civil Code Article 3461, may not be renounced, interrupted, or suspended.

In the instant case, it is undisputed that the decedent and Ms. Murray learned of the alleged act of malpractice on an unspecified date in June of 2006. Therefore, the one-year prescriptive period for filing a legal malpractice action against the defendants commenced in June 2006. As stated above, the initial action, brought by Ms. Murray in her capacity as legal representative of her mother’s estate, was filed on April 13, 2007. The amended petition, adding Ms. Murray and Mr. Robinson as plaintiffs in their individual capacities, was filed on October 1, 2007.

17Typically, in cases in which the wrong party files suit and interrupts prescription, a subsequent amended petition filed by a party with procedural capacity “relates back” to the original petition, and the lawsuit can continue. This procedural rule is set forth in LSA-C.C.P. art. 1153, which provides:

When the action or defense asserted in the amended petition or answer arises out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of filing the original pleading.

In Giroir v. South Louisiana Medical Center, Div. Of Hospitals, 475 So.2d 1040 (La.1985), the decedent’s husband filed a survival action and wrongful death claim against several physicians and a hospital. The survival action was filed by the husband in his capacity as administrator of the decedent’s estate. One year and three days after the decedent’s death, an amended petition was filed, adding the decedent’s two major children as plaintiffs in both the survival action and wrongful death action. The amended petition also changed the husband’s capacity with regards to the survival action so that he appeared in his individual capacity, rather than as administrator of the decedent’s estate. The defendants filed peremptory exceptions of prescription, arguing that the claims of the decedent’s children had prescribed because the amendment adding them as plaintiffs was not filed within one year of the decedent’s death. Citing Ray v. Alexandria Mall, 434 So.2d 1083 (La.1983), the Louisiana Supreme Court found that |Rthe amended petition related back to the date of the filing of the original petition. The court stated:

With respect to [the husband], the amendment only sought to change the capacity in which he brought the survival action. Because Mr. Giroir was already before the court in a different capacity and filed the amendment only ten days after the original petition, and because the defendants already were on notice of the facts out of which his claim arose, there was no prejudice to the defendant and the amendment clearly related back. Regarding the children’s wrongful death and survival actions, each action added by amendment clearly stems from the same conduct, transaction, or occurrence set forth in the original pleading, viz., the medical malpractice and the resulting death of the children’s mother. The defendants knew or should have known of the existence and involvement of the Giroir children.
* * *
Under the circumstances of this case, no essential protective purpose of the prescriptive statute is violated by permitting relation back of the post prescription amendment based on the same factual situation pleaded in the original timely petition. Through the original pleading,, the defendants knew that judicial relief was sought arising from the general factual situation alleged, and they were put on notice that their evidence concerning it should be collected and preserved.

Id. at 1044-45.

However, in Naghi v. Brener, 2008-2527 (La.6/26/09), 17 So.3d 919, the court rejected an argument that an amended petition adding or substituting plaintiffs should be allowed to relate back to the original timely filed petition in a legal malpractice action. The court concluded that “relation back of an amended or supplemental pleading adding a plaintiff isj^not allowed to avoid the running of a peremptive period such as that found in La. R.S. 9:5605.” In Naghi, supra, property owned by a corporation was damaged by fire. The plaintiffs, who were the directors/shareholders of the corporation, hired the defendant/attorney to represent them in the matter. The defendant failed to timely pursue the claim, and as a result, the plaintiffs’ claim prescribed. The plaintiffs, in their individual capacities, filed a legal malpractice action against the defendant and her professional law corporation. The defendant filed an exception of no right of action and a motion for summary judgment, asserting that the damaged property was not owned by the plaintiffs personally, but it was owned by the corporation. In response, the plaintiffs filed an amended petition, substituting the corporation as the plaintiff. The amended petition was filed more than one year after the discovery of the alleged malpractice. The defendant filed, inter alia, an exception of per-emption. The district court overruled the exception, and the court of appeal affirmed. The supreme court reversed, stating:

The primary importance of [LSA-C.C.P. art. 1153] is the avoidance of prescription by amending to add an overlooked defendant or cause of action or to join a tardy plaintiff. Frank L. Maraist, 1 Louisiana Civil Law Treatise: Civil Procedure, § 6:10, p. 224 (2nd Ed.2008).

Id. at 924. The court further stated:

Because it is well established that “nothing may interfere with the running of a peremptive period,” and avoiding the peremptive period certainly interferes with the running of that period, relation back of an amended or supplemental pleading adding a plaintiff is not allowed to avoid the running of a peremptive period such as that found in La. R.S. 9:5605. Further, the relation back theory assumes that there is a legally viable claim tojjjwhich the pleading can relate back. Prescription only prevents the enforcement of a right by legal action, it does not terminate the natural obligation. Peremption, however, destroys the cause of action itself. Because the cause of action no longer exists after the termination of the peremptive period and any right to assert the claim is destroyed, there is nothing to which an amended or supplemental pleading filed after the peremptive period has expired can relate back. Therefore, because the Naghi’s original petition, filed within the peremptive period, was brought by a party with no right of action to sue, the First Supplemental/Amending petition filed after the peremptive [period] brought on behalf of the proper party plaintiff cannot relate back to the original timely filed petition.

Id. at 925 (internal citations omitted).

In the instant case, a lawsuit was filed after the decedent’s death and within one year of the discovery of the alleged legal malpractice. However, the party who filed the lawsuit — the Estate of Mary Robinson, through its representative Ms. Murray — was not one of the proper party plaintiffs to bring the action. Thus, based on LSA-R.S. 9:5605 and the supreme court’s ruling in Naghi, supra, the filing of the lawsuit by the wrong party had no effect on the running of the peremptory period, and the amended petition adding the plaintiffs in their individual capacities as the children of the decedent cannot relate back to the original timely filed petition. Accordingly, since no survival action was filed by the proper party plaintiffs within one year of the discovery of the alleged legal malpractice, we find that the survival action for legal malpractice was extinguished by peremption.

| ^Wrongful Death Action

The defendants also contend summary judgment was appropriate with regards to the wrongful death claim. The defendants argue that the plaintiffs failed to present any evidence to show that its alleged legal malpractice caused the decedent to commit suicide. Conversely, the plaintiffs contend that the evidence was sufficient to show that they will be able to satisfy their burden of proof at trial of their claim.

In determining whether summary judgment is appropriate, appellate courts are to review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is proper. Suire v. Lafayette City-Parish Consolidated Government, 2004-1459 (La.4/12/05), 907 So.2d 37. The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action and shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(A)(2) and (B).

The burden of proof remains with the movant. LSA-C.C.P. art. 966(C)(2). However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Id. | ^Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. Id.

When a motion for summary judgment is made and supported as provided above, an adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits, or as otherwise provided above, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him. LSA-C.C.P. art. 967(B).

The determination of liability in a negligence action usually requires proof of five separate elements: (1) proof that the defendant has a duty to conform his conduct to a specific standard (the duty element); (2) proof that the defendant’s eon-duct failed to conform to the appropriate standard (the breach element); (3) proof that the defendant’s substandard conduct was a cause-in-fact of the plaintiffs injuries (the cause-in-fact element); (4) proof that the defendant’s substandard conduct was a legal cause of the plaintiffs injuries (the scope of liability or scope of protection element); and (5) proof of actual damages (the damages element). Boykin v. Louisiana Transit Co., 96-1932 (La.3/4/98), 707 So.2d 1225; Allums v. Parish of Lincoln, 44,304 (La.App.2d Cir.6/10/09), 15 So.3d 1117.

Generally, the outset determination in the duty-risk analysis is the cause-in-fact. Id. Cause-in-fact is a “but for” inquiry which tests whether the accident would or would not have happened but for the defendant’s substandard conduct. Id. Where there are concurrent causes of an accident, | Uithe proper inquiry is whether the conduct in question was a substantial factor in bringing about the accident. Id. Although the cause-in-fact inquiry is a factual determination best made by the fact-finder, summary judgment may be appropriate when there is no evidence to show that the defendants’ negligence caused the plaintiffs’ injuries. See, e.g., Williamson v. Monroe Medical Clinic, 37,463 (La. App.2d Cir.8/20/03), 852 So.2d 1192.

We have reviewed this record in its entirety, and we find that the plaintiffs have presented no evidence to support a finding that Guerriero’s failure to timely file the decedent’s lawsuit was a cause-in-fact or substantial factor in bringing about her suicide. Ms. Murray testified that the decedent had suffered from depression for at least 10 years prior to her fall at the apartment complex. Ms. Murray also testified that her mother’s depression worsened after her fall, noting the lack of effort that the decedent had started putting into her appearance. Ms. Murray stated, “It was almost like she had given up.” Ms. Murray further testified that she was present when Guerriero informed the decedent that her lawsuit had prescribed. She stated that the decedent was “very upset” on that day, but she admitted that the decedent never said anything else to her about the legal malpractice matter. Likewise, George Robinson testified that he had never heard his mother mention anything about the legal malpractice matter.

Dr. David Hebert, the decedent’s longtime internal medicine physician, testified that he had treated the decedent for anxiety and depression since 1981. Dr. Hebert did not attribute the decedent’s 114depression to the legal malpractice action. Significantly, he testified that the decedent never mentioned anything to him about being upset or depressed because of a legal malpractice lawsuit. Dr. Hebert testified as follows:

Her depression was quite significant. She also had a lot of anxiety. She would come in here trembling, shaking, very upset, talking rapidly, and she would complain of lack of sleep, of not wanting to go on, not wanting to do things. I think she had both, a lot of anxiety and depression.

Dr. Hebert also testified that the decedent’s depression became “pretty severe” within the last months of her life. He attributed much of the decedent’s depression to a problematic surgical weight-loss procedure and financial concerns. Dr. Hebert testified:

[S]he was very depressed in the last year of her life. Every problem that she had seemed to be unmanageable. I know she was obsessed about weight loss and then she had a procedure done in Mexico, a lap banding procedure.... And I know she absolutely obsessed about that and was very depressed and upset. I know the last two visits I had with her, she was wanting for [sic] me to find her a surgeon who would literally take it out.... And I couldn’t quite understand why she was so upset about it. But everything — and she did say that she had a lot of financial [problems] and a lot of responsibility and seemed to be less and less capable of handling that.

Dr. Hebert further testified that the decedent had been treated by a psychiatrist in the 1980s, but she refused to continue psychiatric treatment. He stated, “[I]n the last year, we desperately wanted her to see a psychiatrist and she steadfastly refused.” He also testified that the decedent came to see him in June or July of 2006 and was “psychotic” and “losing contact with reality.” He stated that she was “upset” and “crying” about the lap band surgery because “it was doing terrible things to her.” Dr. Hebert also 11Btestified that he saw the decedent in August and September of 2006 and noted that her depression worsened. However, he did not attribute her condition to any one event, stating, “I don’t think you can say any one thing caused this terrible depression.” Dr. Hebert testified that the decedent’s last visit to him occurred on September 29, 2006, a few days before her suicide. He opined that she was “more alert and more stable,” but continued to complain about the effects of the lap band surgery.

As stated above, there is no evidence in the record to prove that Guerrerio’s act of allowing the decedent’s lawsuit to prescribe caused her to commit suicide. After the day that she learned that the lawsuit had prescribed, the decedent did not mention the matter to her children or her physician. Dr. Hebert attributed the decedent’s depression to other events, such as financial issues and a prior weight-loss surgical procedure. However, Dr. Hebert did not attribute the decedent’s depression to the legal malpractice matter; the decedent had never even mentioned the matter to him. Thus, we must conclude that the plaintiffs failed to produce factual support sufficient to show that they will be able to satisfy their burden at trial. Accordingly, we find that the district court erred in denying summary judgment with regard to the wrongful death claim.

CONCLUSION

For the reasons set forth herein, the writ application filed by the defendants, Continental Casualty Insurance Company, Guerriero & Guerriero, LLC and Joe Gu-erriero is hereby granted and made peremptory. The district court’s ruling denying summary judgment is hereby reversed. J^Costs are assessed to the plaintiffs.

REVERSED.

      . In Ray, the Court established the following criteria for determining whether LSA-C.C.P. art. 1153 allows an amendment which adds or substitutes a defendant to relate back to the date of the filing of the original petition: (1) the amended claim must arise out of the same transaction or occurrence set forth in the original pleading; (2) the purported substitute defendant must have received notice of the institution of the action such that he will not be prejudiced in maintaining a defense on the merits; (3) the purported substitute defendant must know or should have known that but for a mistake concerning the identity of the proper party defendant, the action would have been brought against him; and (4) the purported substitute defendant must not be a wholly new or unrelated defendant, since this would be tantamount to assertion of a new cause of action which would have otherwise prescribed.

      . See also Warren v. Louisiana Medical Mut. Ins. Co., 2007-0492 (La.6/26/09), 21 So.3d 186 (on rehearing), a medical malpractice case in which the court determined that LSA-C.C.P. art. 1153 does not apply to the per-emptive period regarding medical malpractice claims.


author: GRAVES, Presiding Justice,

text:
    DIALYSIS SOLUTION, LLC v. MISSISSIPPI STATE DEPARTMENT OF HEALTH, Dr. Mary Currier, in her capacity as the Executive Director of the Department of Health; State of Mississippi and RCG-Montgomery County, LLC.
    No. 2008-CA-02073-SCT.
    Supreme Court of Mississippi.
    Feb. 18, 2010.
    Rehearing Denied April 15, 2010.

      Bryant Wandrick Clark, Robert George Clark, III, attorneys for appellant.

      Bea McCrosky Tolsdorf, Barry K. Cock-rell, attorneys for appellees.
    Before GRAVES, P.J., DICKINSON and CHANDLER, JJ.
   GRAVES, Presiding Justice,

for the Court.

¶ 1. This case requires interpretation of Section 41-7-195 of the Mississippi Health Care Certificate of Need Law of 1979. This statutory section addresses the validity and duration of a Certificate of Need (CON), which is a certificate that healthcare providers must obtain from the Mississippi State Department of Health (MSDH) prior to constructing certain healthcare facilities or offering designated health services. The two issues before this Court are: 1) Whether, pursuant to Section 41-7-195, the MSDH has the authority to grant an extension of a CON after the date of expiration specified in the CON; and 2) whether, pursuant to Section 41-7-195, the MSDH has the authority to grant multiple extensions of a CON. The plaintiff — Dialysis Solution, a company desiring to develop a kidney-disease treatment facility in Montgomery County, Mississippi — argues that the MSDH has never had the authority to take either of these actions. The defendants — the MSDH, the State Health Officer (the late Dr. Ed Thompson), the State of Mississippi, and RCG-Montgomery, LLC (RCG), the developer of a kidney-disease treatment facility in Montgomery County and holder of the CON at issue — argue that the MSDH had the authority to take both these actions. The trial court ruled in favor of the defendants on both issues. Finding that the MSDH did not have the authority to grant an extension of RCG’s CON after the CON’s expiration date, and finding this issue dispositive, we reverse and render.

FACTS AND PROCEDURAL HISTORY

¶ 2. This case focuses on the validity of a Certificate of Need (CON) that was issued to defendant RCG-Montgomery County, LLC (RCG), to develop a kidney-disease treatment facility in Montgomery County. To assist the trial court in making its final judgment on the issues presented, all parties agreed to stipulate to the facts of the case. Unless otherwise noted, all of the following facts were taken from the parties’ Joint Stipulation of Facts.

¶ 3. The Mississippi Health Care Certificate of Need Law of 1979 (The Health Care CON Law) (Miss.Code Ann. §§ 41-7-178 through 41-7-209 (Rev.2009)) designates the Mississippi State Department of Health (MSDH) as the sole agency to administer and supervise all state health planning responsibilities. Miss.Code Ann. § 41-7-175 (Rev.2009). The purposes of Mississippi’s health planning and regulatory activities are to prevent unnecessary duplication of health resources, provide cost containment, improve the health of Mississippi residents, and increase the accessibility, acceptability, continuity, and quality of health services. Mississippi Department of Health, State Health Plan for Fiscal Year 2005: Introduction, available at http://msdh.ms.gov/ msdhsite/_static/re-sources/1083.pdf (last accessed Feb. 11, 2010).

¶ 4. The Health Care CON Law authorized the MSDH to develop and implement a statewide health CON program. Miss. Code Ann. § 41-7-187 (Rev.2009). A CON must be obtained from the MSDH before a person may undertake any of the activities described in Section 41-7-191(1), which include the establishment of End-Stage Renal Disease (ESRD) facilities. Miss.Code Ann. § 41-7-191(1) (Rev.2009). No final arrangement or commitment for financing such activity may be obtained by any person unless the MSDH has issued a CON for such arrangement or commitment. Miss.Code Ann. § 41-7-193(1) (Rev.2009). No CON shall be issued unless the project proposed in the application for such CON has been reviewed for consistency with the specifications and criteria established by the MSDH and substantially complies with the projection of need as reported in the Mississippi State Health Plan which is in effect at the time the application is submitted to the MSDH. Miss.Code Ann. § 41-7-193(1).

¶ 5. The Mississippi State Board of Health authorized the MSDH to issue CONs for the construction or expansion of ESRD facilities having a need in several counties, including Montgomery County. On December 16, 2004, after having reviewed a CON application from RCG, the MSDH issued a CON to RCG for a six-station ESRD facility in the City of Wino-na in Montgomery County.

¶ 6. While the CON for the RCG ESRD facility was issued in December 2004, for two significant reasons, RCG did not commence development and construction of the project until approximately September 2007. First, approximately eight months after the CON was issued, Hurricane Katrina devastated the Mississippi Gulf Coast. The hurricane had a significant impact on ESRD facilities operated by RCG’s parent company, Renal Care Group, Inc., and also on facilities operated by the company that was involved in negotiations to acquire RCG’s parent company, Fresenius Medical Care Holdings, Inc. (Fresenius). As a result, those two companies devoted all of their time and resources to recovery efforts on the Gulf Coast, which were necessary to insure that ESRD patients in that area had access to dialysis treatment. Second, in 2005, Renal Care Group, Inc. (RCG’s parent company), negotiated and executed an agreement to be acquired by Fresenius. Renal Care Group, Inc., announced the definitive agreement on May 4, 2005, but RCG could not move forward with the development of the ESRD facility in Montgomery County until federal regulatory approvals were secured regarding the transaction. More specifically, RCG had to wait until the Federal Trade Commission could analyze the operations of Renal Care Group, Inc., and Fresenius in Mississippi to determine whether either or both companies would have to sell assets and/or facilities to address antitrust concerns. Until this federal review was complete, there was no way to know whether the RCG Montgomery County dialysis facility project could be retained and developed. After the necessary federal regulatory approvals were obtained on July 5, 2006, and following the recovery from Hurricane Katrina, RCG turned its attention back to the development of the dialysis facility in Montgomery County.

¶ 7. On December 29, 2006 (about eight or nine months before RCG began construction on its dialysis facility), MSDH received a CON application for the establishment of a twelve-station ESRD facility in Montgomery County from Dialysis Solution.

¶ 8. On January 8, 2007 (ten days after the MSDH received a CON application from Dialysis Solution), RCG filed its first request for a six-month extension of the CON that it had been issued on December 16, 2004. On January 18, 2007, the State Health Officer granted the requested six-month extension. In August 2007, RCG requested a second six-month extension. On August 30, 2007, the State Health Officer granted RCG this second extension, making it the second official six-month extension granted of four official six-month extensions the State Health Officer ultimately granted before the project was completed in August 2008.

¶ 9. In a letter dated September 27, 2007, Dialysis Solution requested a public hearing for revocation of RCG’s CON, arguing that, pursuant to Section 41-7-195, the MSDH is forbidden from extending a CON after the CON has lapsed, and that it is forbidden from extending a CON for any amount of time exceeding six months (i.e., forbidden from allowing a CON to be outstanding for more than the initial twelvemonth duration of the CON plus one six-month extension). In the alternative, Dialysis Solution argued, the MSDH should revoke RCG’s CON for RCG’s failure to commence construction on the facility more than two-and-a-half years after it had been issued the CON. In a letter dated October 12, 2007, the MSDH denied Dialysis Solution’s request for a public hearing on the revocation of RCG’s CON.

¶ 10. On October 12, 2007, at Dialysis Solution’s request, the Mississippi Attorney General’s Office issued an opinion clarifying its understanding of Section 41-7-195 as it relates to expirations of CONs. The Attorney General’s Office explained that it is its opinion that, pursuant to Section 41-7-195, after the date of expiration of a CON, the CON is automatically void by operation of law and does not require any action on the part of the MSDH to finalize its voided status. The Attorney General’s Office elaborated:

The statute expressly provides that a CON is valid only for the time period stated therein.... [OJnce the time period stated in the CON has lapsed, the CON is void and no extensions can be granted. At that point, the applicant would be required to reapply for a CON.... [A]fter the expiration of the time period stated in the CON, the Department does not have the authority to grant an extension of the CON. Any extensions granted pursuant to Section 41-7-195(3) must be granted prior to the expiration.

Op. Att’y Gen.2007-00467 (Miss. Oct. 12, 2007).

¶ 11. On October 23, 2007, Dialysis Solution filed a Complaint for Declaratory Judgment and Injunctive Relief in the Chancery Court for the First Judicial District of Hinds County, Mississippi. In Dialysis Solution’s Complaint, it argued that, pursuant to Section 41-7-195, the MSDH is forbidden from granting more than one six-month extension of a CON (i.e., a CON cannot be valid for more than a total of eighteen months), thus the CON issued to RCG on December 16, 2004, is invalid by operation of law. On February 20, 2008, Dialysis Solution filed a Motion for Temporary Restraining Order and/or Preliminary Injunction to enjoin the MSDH from granting any additional extensions of RCG’s CON, to enjoin the MSDH from issuing a license to RCG for an ESRD facility in Montgomery County, and to prohibit RCG from continuing any construction on the ESRD facility in Montgomery County until the trial court ruled on the matter. On March 3, 2008, Dialysis Solution filed an Amended Complaint, adding the argument that, pursuant to Section 41-7-195, once the time period stated in the CON has lapsed, the CON is void, and the MSDH does not have the legal authority to extend it.

¶ 12. On October 26, 2007 — -three days after Dialysis Solution filed its initial Complaint — the MSDH issued an official notice that it had received the October 12, 2007, Attorney General’s Opinion regarding interpretation of Section 41-7-195 as it relates to CON extensions. The notice explained that, in response to the Attorney General’s Opinion, the MSDH was adopting a Temporary Rule, effective October 29, 2007, to develop a clear and consistent process for the review and extension of outstanding CONs. The MSDH stated that the reasons for the Temporary Rule were as follows:

The Department of Health finds that Certificates of Need (“CONs”) have been issued to serve unmet healthcare needs of the state and that compliance with the Attorney Generals’s Opinion of October 12, 2007, may prevent the completion of outstanding CONs that were issued to address such needs. Changes in the CON Rules regarding extensions of valid CONs are necessary to comply with the Attorney General’s Opinion, to modify requirements for six-month extensions, to clarify the status of incomplete CONs, and to provide transition of incomplete CONs.

¶ 13. The Temporary Rule provided that, in order to continue authority for a CON following the initial twelve-month issuance period, the CON holder is required to document substantial progress toward completion of the certificated facility and be granted a six-month extension. The CON holder is required to file a request for a six-month extension at least thirty days prior to the expiration of the original or any extended period of the CON. The Temporary Rule further provided that “[i]f a CON holder fails to receive Department approval for an extension prior to the CON’s expiration date, the CON shall be automatically void, and shall not require any action on the part of the Department to withdraw, revoke or rescind the certificate.” However, the Temporary Rule made an exception for those who at the current time held expired or very-soon-to-expire CONs. It stated:

For currently approved projects where the original CON has expired, or an extension of the CON has expired, or where the CON will expire in 30 days from the effective date of this rule, the CON holder has 15 business days from the effective date of this rule (or by November 19, 2007) to submit a progress report documenting project completion, or submit a request for a six-month extension....

This Temporary Rule became a Permanent Rule on February 23, 2008. Hereinafter, the Temporary and Permanent Rule will be referred to as “the new Rules.”

¶ 14. On November 16, 2007, pursuant to the new Rules, RCG filed a request for a six-month extension of its CON, and on December 18, 2007, RCG submitted to the MSDH a progress report and documentation of commencement of construction of the project. On January 14, 2008, the MSDH granted RCG’s request for a six-month extension, making this the third official six-month extension granted to RCG. The MSDH explained that this latest extension period would terminate on June 16, 2008.

¶ 15. On March 27, 2008, the trial court issued an Order denying Dialysis Solution’s Motion for Temporary Restraining and/or Preliminary Injunction.

¶ 16. On May 16, 2008, RCG requested another six-month extension, and was granted this extension on May 20, 2008, making this the fourth and final six-month extension granted to RCG.

¶ 17. On August 1, 2008, construction of the RCG dialysis facility was completed, and the City of Winona issued RCG a Certificate of Occupancy for it. On August 25, 2008, the RCG facility commenced operations with the treatment of a dialysis patient.

¶ 18. On December 8, 2008, the trial court issued a Final Judgment in favor of the defendants, finding “no legal basis to determine that the granting of the CON extension by MSDH to RCG was arbitrary or capricious or otherwise illegal or improper.” Dialysis Solution then timely filed its appeal to this Court.

¶ 19. Because we find the issue of whether the MSDH had the authority to grant an extension of RCG’s CON after the CON’s expiration date to be disposi-tive, we decline to address the issue of whether the MSDH had the authority to grant multiple extensions of RCG’s CON.

DISCUSSION

¶ 20. This appeal requires review of the MSDH’s interpretation of and decision-making under Mississippi Code Section 41-7-195, the section of the Health Care CON Law that addresses the validity and duration of CONs. Miss.Code Ann. § 41-7-195 (Rev.2009). The relevant portion of Section 41-7-195 states:

(1) ... A certificate of need shall be valid for the period of time specified therein.
(2) A certificate of need shall be issued for a period of twelve (12) months, or such lesser period as specified by the State Department of Health.
(3) The State Department of Health may define by regulation, not to exceed six (6) months, the time for which a certificate of need may be extended.

Miss.Code Ann. § 41-7-195(l)-(3) (Rev. 2009).

¶ 21. The standard of review this Court applies to an administrative agency’s decision is well established. When reviewing the decision of an agency, this Court is limited as to the scope and depth of its inquiry. It will reverse the decision of an agency only if the decision was: 1) not supported by substantial evidence; 2) arbitrary or capricious; 3) beyond the power of the agency to make; or 4) violated a statutory or constitutional right of the complaining party. Miss. Methodist Hosp. and Rehab. Ctr. v. Miss. Div. of Medicaid, 21 So.3d 600, 606 (Miss.2009). See also Green v. Cleary Water, Sewer, & Fire Dist., 17 So.3d 559, 566 (Miss.2009). There is a rebuttable presumption in favor of the action of the agency, and the burden of proof is on the party challenging the action. Green, 17 So.3d at 566.

¶ 22. An agency’s interpretation of a statute governing its operation is a matter of law and is thus reviewed de novo, but with great deference to the agency’s interpretation. Miss. Methodist Hosp. and Rehab. Ctr., 21 So.3d at 606. Deference is afforded the agency because “the everyday experience of the administrative agency gives it familiarity with the particularities and nuances of the problems committed to its care which no court can hope to replicate.” Id. (quoting Gill v. Miss. Dep’t of Wildlife Conservation, 574 So.2d 586, 593 (Miss.1990)). If an agency’s interpretation of a statute is contrary to the unambiguous language or best reading of a statute, however, this Court will not afford it any deference. Id. This Court will not uphold an agency’s interpretation if “it is so plainly erroneous or so inconsistent with either the underlying regulation or statute as to be arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law.” Id. (quoting Buelow v. Glidewell, 757 So.2d 216, 219 (Miss.2000)).

¶ 23. Dialysis Solution argues that the MSDH does not have the authority to grant an extension of a CON after the date of expiration specified in the CON. Dialysis Solution contends that, once the stated duration of the CON has lapsed, the CON is void, and the MSDH must reissue the CON in accordance with CON statutory provisions. Therefore, Dialysis Solution reasons, since the expiration date of RCG’s CON was December 16, 2005, RCG’s CON became void on that date, and the MSDH did not have the authority to grant any of the six-month extensions that it granted to RCG after that .date.

¶ 24. The defendants argue that the MSDH had the authority to grant RCG all of the extensions it was granted, pursuant to the regulations the MSDH adopted in accordance with its rule-making authority (i.e., pursuant to “the new Rules”). The defendants refuse to admit that RCG’s CON expired a year after it was granted, but they fail to offer any explanation as to how or why the CON did not expire at that time (i.e., on December 16, 2005). The defendants resort to not directly addressing either this question or the question of how the MSDH had the authority to extend RCG’s CON long after the CON’s expiration date. Instead, the defendants repeatedly point to the MSDH’s authority to promulgate rules and regulations regarding the CON program, the fact that the MSDH promulgated the new Rules to address the validity, duration, and extensions of CONs, and the fact that RCG has complied with the new Rules. The defendants argue that “[tjhere is no legal basis whatsoever for Dialysis Solution’s claim that the MSDH did not have the authority to extend a CON when it has purportedly ‘expired.’ ” This contention, the defendants assert, “is based solely on an Attorney General’s Opinion, which can neither validate nor invalidate a past action of a State officer or agency, and operates prospectively only.” “The Attorney General [sic] Opinion itself is not some type of binding, retroactive legal finding and precedent that invalidates the CON issued to RCG,” the defendants explain. The defendants also argue that, because its CON has been fully implemented and its dialysis facility is currently serving numerous patients, it would be a grave injustice to these patients, their families, and the public to impede the operation of the facility.

¶ 25. The trial court agreed with the defendants’ arguments and found that the MSDH in no way had overstepped its authority by granting all the CON extensions to RCG that it did.

¶ 26. Specifically, the question before this Court is whether the MSDH exceeded its power and violated Section 41-7 — 195(1)—(2) of the Health Care CON Law when, on January 18, 2007, it granted RCG’s January 8, 2007, request for a six-month extension, this request having been made one year and twenty-three days after the date of expiration specified on RCG’s CON. As noted above, Section 41-7 — 195(1)—(2) states that “[a] certificate of need shall be valid for the time period specified therein” and “[a] certificate of need shall be issued for a period of twelve (12) months, or such other lesser period as specified.” Miss.Code Ann. § 41-7-195(1) — (2) (Rev.2009). Also as noted above, this Court will not engage in statutory interpretation if a statute is plain and unambiguous. Miss. Methodist Hosp. and Rehab. Ctr., 21 So.3d at 607. See also Bellsouth Telecomms., Inc. v. Miss. Pub. Serv. Comm’n, 18 So.3d 199, 203 (Miss.2009) (“When the language used by the Legislature is plain and unambiguous and the statute conveys a clear and definite meaning, as here, the Court will have no occasion to resort to the rules of statutory interpretation.”); Marx v. Broom, 632 So.2d 1315, 1318 (Miss.1994) (“Courts have a duty to give statutes a practical application consistent with their wording, unless such application is inconsistent with the obvious intent of the legislature.”).

¶ 27. Section 41-7-195(l)-(2) is plain and unambiguous in stating that a CON “shall be valid for the period of time specified therein,” and that such period shall not exceed twelve months. Miss. Code Ann. § 41-7-195(l)-(2). The statutory section makes clear that, unless the CON holder requests an extension of the CON before the time period stated in the CON lapses, the CON will expire and become void at the end of that specified period. Miss.Code Ann. § 41 — 7—195(1)—(3) (Rev.2009).

¶ 28. In the instant case, the MSDH issued RCG a CON on December 16, 2004, set to expire twelve months later on December 16, 2005. Not until January 8, 2007 — one year and twenty-three days after the expiration date of RCG’s CON— did RCG apply for an extension of this CON. By January 2007, RCG’s CON clearly had expired, and the MSDH did not have the authority to contravene Section 41-7-195 and revive RCG’s expired CON by issuing RCG a six-month CON extension. It is plain error to interpret Section 41-7-195 to mean that the MSDH has the discretion to take such an action, and the MSDH’s adoption of such an interpretation is an abuse of discretion. After the stated expiration of a CON, the MSDH must reopen the CON application and review process as provided by statute and regulation.

¶ 29. Moreover, at the time that Dialysis Solution filed its Complaint (i.e., on October 23, 2007), the MSDH’s own Certificate of Need Review Manual, which sets forth the rules and regulations governing CONs, stated:

102 Six-Month Extension
102.01 Certificates of Need are valid for a period not to exceed one year and may be extended by the Department for an additional period not to exceed six months.

Mississippi State Department of Health, Certificate of Need Review Manual, Chapter 6-Subsequent Reviews, Effective: September 8, 2007. This rule, reiterating Section 41-7-195, supports the contention that a CON becomes void on the expiration date stated in the CON (unless an extension of the CON is timely requested).

¶ 30. Section 41-7-185(c) of the Health Care CON Law authorizes the MSDH to “promulgate such reasonable rules and regulations as may be necessary to the implementation of the purposes of § 41-7-171, et seq. [i.e., the Health Care CON Law].” Miss.Code Ann. § 41-7-185(c) (Rev.2009). In addition, Section 41-7-187 authorizes the MSDH to adopt rules and regulations regarding the issuance of CONs. Miss.Code Ann. § 41-7-187 (Rev. 2009). However, Section 41-7-195 makes clear that the Legislature did not intend for the MSDH’s rule-making authority to extend to promulgation of rules regarding how long a CON can be outstanding. The existence of Section 41-7-195 indicates that the Legislature wanted to control through statute the time period for which a CON could be outstanding. Presumably, the Legislature would not have enacted Section 41-7-195 if it had intended CONs to remain valid indefinitely or until the MSDH chose to revoke them.

¶ 31. Nowhere in the statute does the Legislature grant the MSDH the authority to promulgate a rule to revive and extend an expired CON, and “a statutory agency has only legislation [sic ] granted authority, there is not inherent authority.” Miss. Pub. Serv. Comm’n v. Miss. Power & Light Co., 593 So.2d 997, 999 (Miss.1991). An agency cannot grant itself broader authority than the Legislature gave it. See id. (“... [T]his Court has repeatedly stated that powers legislatively granted to and exercised by an administrative agency are limited to and must not exceed the authority prescribed by the legislative enactment.”). Rules and regulations must be consistent with the relevant statutes. See id. (“Statutory provisions control with respect to the rules and regulations promulgated by [an administrative agency]. Accordingly, [an administrative agency] may not make rules and regulations which conflict with, or are contrary to, the provisions of a statute, particularly the statute it is administering or which created it.”). Therefore, the MSDH did not have the authority to grant RCG an extension of its CON after the CON had expired (nor the authority to promulgate a rule (in October 2007) stating that holders of expired CONs have the right to request an extension of their CONs within the first fifteen days following the adoption of the new Rules).

¶ 32. For several reasons, it is illogical to argue that the MSDH’s new Rules — i.e., the Temporary Rule RCG adopted on October 29, 2007, which became a Permanent Rule on February 23, 2008 — in some way corrected or sanctioned the MSDH’s prior unlawful decisions to grant RCG extensions on an expired CON. First, an agency’s promulgation of rules that (aside from one provision dealing with expired CONs) are consistent with a governing statute does not mean that, prior to the adoption of such rules, the agency did not have an obligation to limit its authority to that granted to it by the governing statute. In other words, while it is fully within the MSDH’s authority to promulgate rules regarding CON extensions consistent with Section 41-7-195, the fact that it did so (in October 2007) does not mean that prior to promulgation of such rules, Section 41-7-195 was unclear or not authoritative. Nor does it negate the fact that RCG failed to request an extension of its CON prior to its CON’s December 16, 2005, expiration date.

¶ 33. Second, as noted above, the provision included in the new MSDH Rules granting holders of expired CONs the right to request an extension of their CONs within the first fifteen days following the adoption of the new Rules was not within the MSDH’s authority to promulgate.

¶ 34. Third, and perhaps most importantly, the MSDH did not propose its Temporary Rule until October 26, 2007, three days after Dialysis Solution had filed its Complaint in this matter and served the MSDH with process. The Temporary Rule did not become effective until October 29, 2007, and it did not become a Permanent Rule until February 24, 2008. Thus, the argument made by the defendants and adopted by the trial court that these Rules somehow remedied any of the actions for which Dialysis Solution was suing the defendants is flawed, because these new Rules were not proposed until after the lawsuit had begun.

¶ 35. In addition, the fact that the new Rules — aside from the one provision making an exception for holders of currently expired CONs — adopt Dialysis Solution’s and the Attorney General’s interpretation of Section 41-7-195 is evidence that the MSDH does not, and knows it does not, have the authority to revive and extend expired CONs.

¶ 36. The Attorney General’s Opinion of October 12, 2007, supports Dialysis Solution’s argument that the MSDH has at all times lacked the authority to revive and extend an expired CON. While Attorney General’s Opinions are not binding, this Court certainly may consider them. Tupelo Redevelopment Agency v. Gray Corp., Inc., 972 So.2d 495, 509 (Miss.2007). It is the stated opinion of the Attorney General’s Office that, after the CON’s stated date of expiration, the CON is automatically void by operation of law, and no action on the part of the MSDH is needed to finalize the CON’s voided status. Op. Att’y Gen.2007-00467 (Miss. Oct. 12, 2007). The Attorney General’s Office elaborates:

The statute expressly provides that a CON is valid only for the time period stated therein .... [and][o]nee the time period stated in the CON has lapsed, the CON is void and no extensions can be granted. At that point, the applicant would be required to reapply for a CON.

Op. Att’y Gen.2007-00467 (Miss. Oct. 12, 2007).

¶ 37. Lastly, the fact that RCG’s CON has been fully implemented and its dialysis facility is currently licensed and serving public health needs is irrelevant to the legal issues this Court must decide. Construction of RCG’s dialysis facility was still in its infancy when Dialysis Solution filed suit against it challenging the validity of its CON, and RCG’s decision to continue to construct the facility after the lawsuit was filed should not affect the merits of Dialysis Solution’s claims. In City of Durant v. Humphreys County Memorial Hospital/Extended Care Facility — a case in which the City of Durant challenged the Mississippi Health Care Commission’s issuance of a CON to a hospital for the construction of a nursing home — this Court held:

... where an appellant’s original action was timely and where he has promptly prosecuted his appeal, the completion of an act based upon improper authority does not legitimate the act or render the legal issues moot.... Here, plaintiffs sued within a reasonable time of learning of the outstanding CON and while HCMH/ECF’s [i.e., the defendant’s] construction was in its infancy.... That the evidence of HCMH/ECF’s authority may have metamorphosed from CON to license hardly renders moot the core controversy.

City of Durant v. Humphreys County Mem’l Hosp./Extended Care Facility, 587 So.2d 244, 249-50 (Miss.1991) (citations omitted). While the defendants in the instant case are not arguing that the issues Dialysis Solution raises are moot because RCG’s dialysis facility is now operational, the defendants do suggest that this Court should consider the harm that would result to ESRD patients if the operation of RCG’s dialysis facility were impeded.

¶ 38. Like the plaintiff in City of Durant, Dialysis Solution filed a timely complaint, doing so while construction of RCG’s dialysis facility was still in its infancy, and subsequently timely appealed to this Court. As explained above, in a letter dated September 27, 2007, Dialysis Solution requested a public hearing for revocation of RCG’s CON, arguing that pursuant to Section 41-7-195, the MSDH is forbidden from extending a CON after the CON has lapsed (and forbidden from extending a CON for any amount of time exceeding six months). In a letter dated October 12, 2007, the MSDH denied Dialysis Solution’s request for a public hearing on the revocation of RCG’s CON. Therefore, on October 23, 2007 — a reasonable time after the MSDH had denied its request for a public hearing — Dialysis Solution filed a Complaint for Declaratory Judgment and In-junctive Relief in the Chancery Court for the First Judicial District of Hinds County, Mississippi. In addition, on February 20, 2008, Dialysis Solution filed a Motion for Temporary Restraining Order and/or Preliminary Injunction, requesting that the trial court enjoin RCG from continuing any construction of its dialysis facility until after the trial court ruled on the matter. At the time the Complaint was filed, construction of RCG’s facility was still in its infancy; construction had begun only the previous month (or perhaps even later— this is a disputed fact), and it was not completed until nearly a year later. In sum, because Dialysis Solution’s original action was timely filed and it promptly prosecuted its appeal, RCG’s completion of its dialysis facility following the commencement of the lawsuit does not legitimate the act of building a facility while not possessing a valid CON.

¶ 39. For the foregoing reasons, we find that a CON is valid only for the time period stated therein, and the MSDH does not have the legal authority to revive and extend a CON when a CON holder has failed to request an extension prior to the expiration date of its CON. Therefore, RCG’s CON for the ESRD facility in Montgomery County was void as of December 16, 2005, its stated expiration date, and the MSDH did not have the authority to revive and extend it after that date.

CONCLUSION

¶ 40. Accordingly, we reverse the trial court’s holding that the MSDH had the authority to grant RCG an extension of its CON in January 2007, more than one year after RCG’s CON had expired. RCG’s CON is void by operation of law. If the MSDH still wants to issue a CON for an ESRD facility in Montgomery County, it will have to reopen the CON application and review process as provided by statute and regulation.

¶ 41. REVERSED AND RENDERED.

WALLER, C.J., CARLSON, P.J., DICKINSON, RANDOLPH, LAMAR, KITCHENS, CHANDLER AND PIERCE, JJ., CONCUR.

      . Stale Health Officer Dr. Ed Thompson passed away during the pendency of this appeal, and pursuant to Miss. R.App. P. 43(c)(1), Interim State Health Officer Dr. Mary Currier was automatically substituted in her official capacity. She later was confirmed as permanent State Health Officer.

      . The land for the RCG facility was purchased on February 2, 2007, and the closing for the land was on March 17, 2008. RCG planned a groundbreaking ceremony for November 16, 2007. RCG submitted documentation of commencement of the project to the MSDH on December 18, 2007.
      In a brief that the defendants submitted to the trial court, they stated:
      ... RCG has been engaged in developing and constructing the ESRD facility in Wi-nona for more than five (5) months [from the date of February 29, 2008 — i.e., since approximately September 2007]. The project is well underway....
      Additionally, in defendants’ brief to this Court, they state that, at the time Dialysis Solution sought injunctive relief (i.e., in October 2007), RCG’s dialysis facility was "already well under construction....”
      However, in Dialysis Solution’s brief to this Court, it claims that, "at the time this action was brought [on October 23, 2007], not only, had construction not commenced but the property for the facility had not been acquired.”
      It is not crucial to determine whether construction of the RCG facility commenced in September 2007 or a few months later; the relevant point, as discussed later in this opinion, is that construction of the facility was in its infancy when Dialysis Solution filed its Complaint in October 2007.

      . In the defendants’ brief to this Court, they state that, in a staff analysis report that the MSDH hád prepared for review by the State Health Officer, the MSDH had recommended disapproval of Dialysis Solution’s CON application. The defendants explain in more detail:
      Dialysis Solution failed to submit all necessary information in order to have the [CONJ application [for its own ESRD facility in Montgomery County] deemed complete. As a result, the Dialysis Solution CON application was not deemed complete until October 1, 2007, nearly a year after the initial filing.
      ín November of 2007, the MSDH issued a staff analysis report oil the Dialysis Solution CON application. In that report, the MSDH recommended disapproval of the Dialysis Solution application. The MSDH staff concluded that the Dialysis Solution application was not in compliance with the applicable CON criteria and standards, and recommended that the proposal not be approved.
      Notably, the MSDH staff analysis report was issued to the State Health Officer in November 2007 — i.e., shortly after Dialysis Solution filed its Complaint against the MSDH.

      . While it is not necessary to analyze more than one instance of the MSDH granting RCG an extension after RCG’s CON had expired, it should be noted that RCG’s request for a second six-month exlension was made after the first six-month extension had expired.

      . Section 41-7-187 states in full:
      The State Department of Health is hereby authorized to develop and implement a statewide health certificate of need program. The State Department of Health is authorized and empowered to adopt by rule and regulation:
      (a)Criteria, standards and plans to be used in evaluating applications for certificates of need;
      (b) Effective standards to determine when a person, facility or organization must apply for a certificate of need;
      (c) Standards to determine when a change of ownership has occurred or will occur; and
      (d) Review procedures for conducting reviews of applications for certificates of need.
      Miss.Code Ann. § 41-7-187 (Rev.2009).

      . The Mississippi Health Care Commission (MHCC) was once an administrative agency of the State of Mississippi. Prior to July 1, 1986, MHCC administered the CON program. City of Durant v. Humphreys County Mem’l Hosp./Extended Care Facility, 587 So.2d 244, 246 (Miss.1991).

      . The defendants also argue that Dialysis Solution should be faulted for not contesting the new Rules adopted by the MSDH regarding CON extensions "despite [having] the right to do so under the Mississippi Administrative Procedures Law, as well as pursuant to the administrative rule-making process followed by the MSDH in enacting the CON regulations.” Whether or not Dialysis Solution contested the new Rules is irrelevant, because as noted earlier, the new Rules were promulgated after Dialysis Solution filed suit and served the MSDH with process. In its brief to this Court, Dialysis Solution explains that it "has no issue with the MSDH’s adoption of the temporary and permanent rule changes concerning the validity, duration and extension of CONs” because "[both] the temporary and permanent rules adopted by MSDH did not take effect until after the Plaintiff filed suit ...” and "subsequent actions on the part of the MSDH do not change the facts and law as they were on October 23, 2007 when the lawsuit was filed.”


author: LEE, P.J.,

text:
    Eugene C. FRAZIER, et al., Appellants, v. Simon FRAZIER, et al., Appellees.
    No. 2008-CA-00555-COA.
    Court of Appeals of Mississippi.
    May 12, 2009.
    Rehearing Denied Dee. 15, 2009.
    Certiorari Denied April 1, 2010.

      Julie Ann Epps, Canton, E. Michael Marks, Jackson, attorneys for appellants.
    Simon Frazier (pro se), attorney for ap-pellees.
    Before LEE, P.J., IRVING and BARNES, JJ.
   LEE, P.J.,

for the Court.

FACTS AND PROCEDURAL HISTORY

¶ 1. Henry and Mozella Frazier and Arthur and Bernice Frazier received 120 acres of real property located in Hinds County by warranty deed on November 8, 1955. At some time in 1988, the couples agreed to an equal division of the property. The deed to Henry and Mozella’s portion was produced at trial, but the deed to Arthur and Bernice’s portion could not be located.

¶ 2. Eugene Frazier (Eugene) and the heirs of Henry and Mozella Frazier brought suit in the Hinds County Chancery Court against Simon Frazier (Simon) and the heirs of Arthur and Bernice Frazier seeking title to the real property by virtue of adverse possession. In the alternative, Eugene sought partition and repayment of taxes and other sums expended in managing the property. Although Simon and the heirs of Arthur and Bernice were served with process, none of them appeared for trial.

¶ 3. The chancellor found that Eugene failed to show by clear and convincing evidence that all of the elements of adverse possession were met. The chancellor did, however, award Eugene a money judgment of $1,620 plus legal interest for the taxes and other expenses paid by Eugene. Eugene now appeals, asserting that the chancellor erred in failing to award Eugene title to the property by virtue of adverse possession.

STANDARD OF REVIEW

¶ 4. “This Court has a limited standard of review in examining and considering the decisions of a chancellor.” Ellison v. Meek, 820 So.2d 730, 734(¶11) (Miss.Ct.App.2002). “When reviewing a chancellor’s decision, we will accept a chancellor’s findings of fact as long as the evidence in the record reasonably supports those findings. In other words, we will not disturb the findings of a chancellor unless those findings are clearly erroneous or an erroneous legal standard was applied.” Peagler v. Measells, 743 So.2d 389, 390(¶ 6) (Miss.Ct.App.1999). “The chancellor, as the trier of fact, evaluates the sufficiency of the proof based on the credibility of witnesses and the weight of their testimony.” Ellison, 820 So.2d at 734(¶ 11). We review questions of law de novo. Id.

DISCUSSION

¶ 5. We first note that Simon and the heirs of Arthur and Bernice Frazier have failed to file an appellee’s brief on the matter. As Simon did not file a brief in this matter, we have two options before us. The first is to take Simon’s failure to file a brief as a confession of error and reverse, which should be done when the record is complicated or of large volume and “the case has been thoroughly briefed by [the] appellant with a clear statement of the facts, and with apt and applicable citation of authorities, so that the brief makes out an apparent case of error.” May v. May, 297 So.2d 912, 913 (Miss.1974). The second is to disregard Simon’s lack of a brief and affirm, which should be done when the record can be conveniently examined and such examination reveals a “sound and unmistakable basis or ground upon which the judgment may be safely affirmed.” Id. The record before this Court consists of approximately fifteen pages of trial testimony, a few property tax receipts, and a warranty deed from 1955. As the former option is not applicable due to the size of the record and the failure of Eugene to show error, we can safely affirm the chancellor for the reasons we discuss below.

¶ 6. Adverse possession is statutory in Mississippi. Mississippi Code Annotated section 15-1-13(1) (Rev.2003) provides, in pertinent part, as follows:

Ten (10) years’ actual adverse possession by any person claiming to be the owner for that time of any land, uninterruptedly continued for ten (10) years by occupancy, descent, conveyance, or otherwise, in whatever way such occupancy may have commenced or continued, shall vest in every actual occupant or possessor of such land a full and complete title....

To establish a claim of adverse possession, Eugene must show by clear and convincing evidence that his possession was: “(1) under claim of ownership; (2) actual or hostile; (3) open, notorious, and visible; (4) continuous and uninterrupted for a period of ten years; (5) exclusive; and (6) peaceful.” West v. Brewer, 579 So.2d 1261, 1262 (Miss.1991) (quoting Stallings v. Bailey, 558 So.2d 858, 860 (Miss.1990)).

¶ 7. If the party is claiming land possessed by a cotenant, the party claiming the land by adverse possession must also prove ouster. Williams v. Estate of Williams, 952 So.2d 950, 953(¶ 8) (Miss.Ct.App.2006). “The cotenant alleging ouster has the burden of establishing that the other cotenants were unequivocally ousted by actual notice or conduct equivalent thereto.” Jordon v. Warren, 602 So.2d 809, 815 (Miss.1992). Evidence of acts by a cotenant not inconsistent with cotenancy, such as using the land and paying taxes on it, do not constitute an ouster of the other cotenants. Campbell v. Dedeaux, 386 So.2d 713, 715 (Miss.1980).

¶ 8. Eugene testified that Henry and Mozella’s heirs had paid the taxes on the land for a number of years. Eugene stated that, since at least 1988, they had cattle grazing on the property. Eugene also stated that they inspected the property from time to time. Eugene testified that he thought Henry had cut timber from the land in 1995. Eugene said that Arthur, who was still living at that time, did not share in the revenue from the timber “because the land had been split, and there was no argument as to who” owned it. Eugene, however, was unsure as to who had paid for the fence around the property in 1955, but he stated that they have maintained the fence. Eugene stated that some of his family had lived on the property at some point, but that none of Arthur and Bernice’s heirs lived on the property.

¶ 9. J.D. Frazier also testified on behalf of Henry and Mozella’s heirs. J.D. testified that the entire property was fenced by Henry in the mid-1950s, but he could not recall if Arthur had helped. J.D. also testified that he thought Simon had paid taxes on the land at some point. J.D. contradicted Eugene’s earlier testimony by stating that they stopped using the land for cattle in 1988.

¶ 10. This Court has found that payment of taxes is “strong evidence of a claim of title.” Wicker v. Harvey, 937 So.2d 983, 995(¶ 38) (Miss.Ct.App.2006). However, the copies of the prior tax bills submitted in the record do not show a continuous payment of the property taxes by Eugene. These receipts merely show that someone paid taxes on a portion of the property in the early 1990s and again for the 2004, 2006, and 2007 tax years.

¶ 11. We find that the evidence supports the chancellor’s decision that Eugene did not establish his adverse possession claim by clear and convincing evidence. The meager testimony presented at best created some confusion as to whether Eugene was discussing the full 120 acres or his father’s half of the acreage as of 1988. We also find that Eugene failed to prove ouster for the same reason. It is unclear as to his testimony whether he was discussing his efforts to possess the full 120 acres prior to 1988 at which point the property was divided. This issue is without merit.

¶ 12. THE JUDGMENT OF THE HINDS COUNTY CHANCERY COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

KING, C.J., MYERS, P.J., IRVING, GRIFFIS, BARNES, ISHEE, CARLTON AND MAXWELL, JJ., CONCUR. ROBERTS, J., NOT PARTICIPATING.