author: JACHARLES R. JONES, Judge. | TOBIAS, J.,

text:
    Kermit A. FOURROUX, Clement Betpouey, III, Melvin L. Hibberts and Lyndon J. Saia v. The BOARD OF COMMISSIONERS FOR THE ORLEANS LEVEE DISTRICT.
    No. 2002-CA-0374.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 8, 2003.
    Rehearing Denied Feb. 14, 2003.

      John W. Hite, III, Lisa A. Valley, Sessions, Fishman & Nathan, L.L.P., New Orleans, LA, for Kernit A. Fourroux, Clement Betpouey, III, Melvin L. Hibbets & Lyndon J. Saia.
    Gerard G. Metzger, Gerard G. Metzger APLC, New Orleans, LA, and Frank A. Milanese, Frank A. Milanese, PLC, New Orleans, LA, for the Board of Commissioners of the Orleans Levee District.
    Court composed of Judge CHARLES R. JONES, Judge MICHAEL E. KIRBY, and Judge MAX N. TOBIAS, Jr.
   JACHARLES R. JONES, Judge.

The Appellant, the Board of Commissioners of the Orleans Levee District (hereinafter “OLD”), suspensively appeals the judgment of the district court in favor of the Appellees, Hermit Fourroux, et al, granting the Appellees’ declaratory relief requested in their Motion for Summary Judgment which resulted in the dismissal of OLD’s Reconventional Demand. We affirm.

Facts

The Orleans Levy District owns, operates and manages the Orleans Marina (hereinafter the “Marina”) located in New Orleans. OLD is a political subdivision of the State of Louisiana administered by the Board of Commissioners of the Orleans Levee District (hereinafter the “Board”). Pursuant to La.Rev.Stat. 38:336(A) & (B)(4), OLD is authorized to establish rental rates and other docking and service charges, and to lease its water bottoms and land at the Marina. OLD has been doing so since the 1960’s.

Although OLD argues several assignments of error on appeal, we are of the opinion that this case is a result of the interpretation of four different provisions in a lease agreement between OLD and lessees of land and water bottoms located in the Marina. The contractual relationships between the parties began in July of |¡>1972. Around that time, the Board approved a plan to further develop the Marina by constructing a number of “boathouse shells”. The primary term of the original lease between the parties was for 20 years, thus through June 30,1992. In 1973, OLD authorized an extension of the boathouse leases by giving the lessees three options to renew for a period of five years each. The first option was to begin on July 1, 1992 and end on June 30, 1997, the second option on July 1, 1997 ending June 30, 2002, and the third option on July 1, 2002 ending on June 30, 2007. There is no dispute to the fact that all of the Appellees accepted this option.

In 1994, OLD adopted Resolution No. 11-022394, which offered three (3) additional five-year options to extend the leases past 2007, very similar to the 1972 options. The resolution further provided that the cost of the first five-year option would be $1,000; the cost of the second, $1,000; and the cost of the third, $2,000. However, the extensions would be under the terms to be developed by the Marina Committee, an entity of the Board specifically enlisted to manage the leased boathouses and water bottoms in the Marina and to develop other “terms and conditions” under the resolutions. It is undisputed that the Appellees accepted this offer as well.

According to the Appellees, in October of 1995, pursuant to the 1994 Resolution No. 11-022394, each individual Appellee signed an amendment to the original lease (hereinafter the “Lease Amendments”) that expressly provided for the amount of rent to be paid. The Appellees are of the opinion that the Lease Amendments expressly confirm that there may be additional terms to be developed at a later date, and that any future changes or additional terms would in no way affect the amount of rents to be charged.

|3In September 1998, OLD adopted Resolution No. 5-091698, authorizing a formal request from the Attorney General on the method of valuation of the Orleans Marina Boathouse Leases. Specifically, the question raised was whether OLD could extend the lease agreements past 2006/2007, without taking into consideration the value of the improvement reversion clause in Article XI of the Leases (discussed infra).

In March 2000, the Attorney General issued an opinion stating that extension of the leases in the Marina, without consideration of the value of the improvements thereon, would be subject to legal challenge as prohibited donations under the Louisiana Constitution. In September of 2000, claiming that it was adhering to the opinion of the Attorney General, OLD enacted another resolution increasing the rent in the Lease Amendments, basing it’s decision to do so on language in the 1994 resolution providing for future “terms and conditions”. The Marina Committee, the entity that was supposed to develop any other terms under the 1994 Resolution, is no longer in existence.

Procedural History

The Appellees, Kermit A. Fourroux, Clement Betpouey, III, Melvin L. Hibbets and Lyndon J. Saia, filed a Petition for Declaratory Judgment seeking the recognition of the lease agreements as binding contracts. OLD filed a Reconventional Demand, arguing that the lease agreements were prohibited donations under the Louisiana Constitution. Appellees filed a Motion for Summary Judgment. The district court dismissed OLD’s Reconventional Demand, finding that its argument was “moot”, and granted the Appellees’ Motion for Summary Judgment. The district court concluded in its well written Reasons for Judgment that:

L... the Court’s inquiry was whether or not the lease amendments actually set forth unambiguously the amount of rental of this rental be later established by action of the OLD ... .it is this Court’s opinion that the amount of rental can be accurately determined from a reading of the clearly stated monetary consideration expressed.
OLD files this timely appeal.
Discussion
Ambiguity of the Rental Rates set forth in the Lease Amendments

In its first assignment of error, OLD argues that the district court erred in finding that the Lease Amendments unambiguously set forth the amount of rentals during the three five-year lease option extensions granted in the 1994 Resolution. OLD maintains that the district court erred in assuming that it had drafted the Lease Amendments and by construing any ambiguities in the amendments against OLD. OLD further maintains that preparation of the first amendment to the lease was a result of negotiations between the Board and a civil district court judge, who at the time was a lessee of one of the boathouses at the Marina.

OLD relies on La. Civ.Code art.2056, Standard-form contracts, arguing that this article provides that in "case of doubt that cannot be otherwise resolved, a provision in a contract must be interpreted against any party “who furnished its text”. LIGA v. Interstate Fire and Casualty Insurance Company, 93-0911 (La.1/14/94) 630 So.2d 759. OLD argues that the Lease Amendments were not “furnished” by OLD to the Appellees.

The Appellees, on the other hand, rely on the finding of the court in Belle Pass Terminal Inc. v. Jolin, Inc., 92-1544 (La.App. 1 Cir. 3/11/94), 634 So.2d 466, which found that while the threshold inquiry of the Court is to determine | ¡^whether a contract’s language is clear and explicit or ambiguous, the law of interpretation does not authorize the creation of ambiguity where none exits.

In the instant case, both parties agree that the Lease Amendments are unambiguous. Whether a contract is ambiguous or not is a question of law. McCrory v. Terminix Service Co., Inc., 609 So.2d 883 (La.App. 4 Cir.1992); Carter v. BRMAP, 591 So.2d 1184 (La.App. 1 Cir. 1991); Borden, Inc. v. Gulf States Utilities Co., 543 So.2d 924 (La.App. 1 Cir.), writ denied, 545 So.2d 1041 (La.1989). When a contract is to be interpreted by the court as a matter of law, a motion for summary judgment is the proper procedural vehicle to present the question to the court. Carter v. BRMAP, supra. Appellate review of the question(s) of law, is simply whether the trial court’s interpretive decision is legally correct. O’Niell v. Louisiana Power & Light Co., 558 So.2d 1235 (La.App. 1 Cir.1990). We find that despite the parties’ contention that there is no ambiguity to the Resolution, the parties are in dispute over its interpretation.

Paragraph II of the Resolution, which describes the monetary consideration, reads in part as follows:

... The monetary consideration for the lease of the property described in Paragraph I for the period July 1, 1972 through October 16, 1980 shall be the sum of eight hundred forty-six and 20/100 dollars ($846.20) per annum, payable in four(4) equal quarterly payments

The section of the Resolution in which OLD places emphasis is the latter wording of paragraph III. Stated in its entirety it reads as follows:

Lessee recognizes and understands that Board Resolution No. 11-02394 provides that the granting of three (3) additional five (5) year options to the South Roadway and West Roadway boathouse leases, and for the purpose of this Amendment, the Lessee in particular, is done under terms to be adopted by resolution of the Board of commissioners of the Orleans Levee District. Lessee | ^agrees that this Amendment is subject to and conditioned upon the above-mentioned terms. The parties agree that, upon the development of said terms, as ratified by the full board, a Sixth Amendment shall be entered reflecting these terms.

We are of the opinion paragraph II of the Resolution, read in its entirety, clearly sets forth rental rates through July 2022. We are also of the opinion that there is no ambiguity in paragraph III of the Resolution, and that these provisions were ratified accordingly. Law and the jurisprudence provide that although courts are bound to give legal effect to contracts according to the true intent of the parties to the contract, that intent must be determined by the words of the contract when these are clear and explicit and lead to no absurd consequences. Kennedy v. Sanco Louisiana, Inc., 573 So.2d 505 (La.App. 4 Cir.1990), citing, Massachusetts Mutual Life Insurance Company v. Nails, 549 So.2d 826 (La.1989); Baber v. Hoffer, 430 So.2d 220 (La.App. 4 Cir.1983); LSA C.C. art. 2046. Moreover, the rule of strict construction does not authorize perversion of language or the creation of ambiguity where none exists, and does not authorize courts to make a new contract where the language employed expresses the true intent of the parties. Id. citing, J.M. Brown Construction Company v. D & M Mechanical Contractors, Inc., 222 So.2d 93 (La.App. 1 Cir.1969).

This Court will not place ambiguity on the Lease Amendments where none exists and the parties simply dispute the intent of the contract. The rental rates are eight hundred forty-six dollars and twenty cents ($846.20), to be “payable in advance in four (4) equal quarterly payments”. Further, the Appellees agreed with the conditions and terms of the contract and that such terms should not “displace, disturb, alter or change ... any other terms”, as stated in the Lease Amendment. The | ^district court was not manifestly erroneous in concluding that the Lease agreement between the Appellees and OLD was an unambiguous binding contract.

“Other Terms and Conditions”

In its second assignment of error, OLD maintains that the district court erred in holding that the Lease Amendments established “other terms and conditions” applicable during the three, five-year lease options granted in the 1994 resolution. OLD relies on the original petition filed by the Appellees, arguing that the Appellees acknowledged that OLD had a right to establish terms applicable during the lease option extensions, except for the “rent duration”, and that the Appellees are now taking the position that OLD had no right to establish any terms for the option extension, despite the clear language of the Lease Amendments. OLD further argues that even though the Marina Committee did not adopt any new terms, that OLD had a right to make changes to the Lease Amendments.

The Appellees maintain that it was undisputed in the district court that the Marina Committee did not develop any “future terms and conditions”, and certainly had nothing to do with the new rental provisions that OLD enacted in 2000. The district court stated in its Reasons for Judgment, and this court agrees, that:

It is the court’s opinion that the amount of rental can be accurately determined from reading of the clearly stated monetary consideration expressed.

Further, La. Civ.Code art 2074 states that:

The words of a contract must be given their generally prevailing meaning.
| RWords of art and technical terms must be given their technical meaning when a contract involves a technical matter.

We find nothing technical in the subject lease agreement. The words in the Lease Amendments must be given their prevailing meaning.

OLD’s Reconventional Demand

In its third assignment of error, OLD argues that the district court erred in dismissing its Reconventional Demand on the basis that the issues raised therein were rendered moot. In its Answer to Petition for Declaratory Judgment and Re-conventional Demand for Declaratory Judgment, OLD prayed for the following:

... (1) Plaintiff — in-Reconvention has the legal right to adopt and establish the terms for the three (3) five year lease option extensions granted pursuant to the 1994 Board Resolution and subject written lease amendments, including, inter alia, the base annual rental rates during the said lease option extensions; and (2) decreeing that any provision(s) in the subject written lease amendments establishing the base annual rental at water bottom rental rates, subject only to a Consumer Price Index adjustment every five years, during the three (3) five year lease option extensions are null and void as unauthorized ultra vires actions; and (3) decreeing that any provi-siones) in the subject written lease amendments establishing the base annual rate at water bottom rental rates, subject only to a Consumer Price Index adjustment every five years, during the three (3) five year lease option extensions are prohibited donations of public property, and, accordingly, null and void as unconstitutional under Article VII, Section 14(A) of the Louisiana Constitution of 1974 ...

OLD argues that the issues raised were introduced in the alternative if the district court found (as it did) that the Lease Amendments established water bottom rental rates during the lease extension options. More specifically, on appeal OLD maintains that the district court erred in rendering moot the constitutional | prohibition against donations of public property and the ultra vires lack of authority issue.

OLD maintains that these issues remained viable and that a ruling on these issues would have a legal effect upon the existing controversy despite the interpretation of the Lease Amendments by the district court. According to Louisiana jurisprudence, an issue is “moot” when a judgment or decree on that issue has been “deprived of practical significance” or “made abstract or purely academic.” Cat’s Meow, Inc. v. City of New Orleans Through Department of Finance, 98-0601, 720 So.2d 1186 (La. Oct.20, 1998) citing, Perschall v. State, 96-0322 (La.7/1/97), 697 So.2d 240; Louisiana Associated Gen. Contractors, Inc. v. State, 95-2105 (La.3/8/96), 669 So.2d 1185, 1193; American Waste & Pollution Control Co. v. St. Martin Parish Police Jury, 627 So.2d 158, 162 (La.1993). A case is “moot” when a rendered judgment or decree can serve no useful purpose and give no practical relief or effect. Robin v. Concerned Citizens for Better Education in St. Bernard, Inc., 384 So.2d 405 (La.1980). If the case is moot, then “there is no subject matter on which the judgment of the court can operate.” St. Charles Parish Sch. Bd. v. GAF Corp., 512 So.2d 1165, 1171 (La.1987), citing, Ex parte Baez, 177 U.S. 378, 20 S.Ct. 673, 44 L.Ed. 813 (1900).

The issues before the district court became moot once the Appellees were granted declaratory relief on their Motion for Summary Judgment. Further, OLD presented these issues to both this Court and the district court as “alternatives”, if the Court were to render in favor of the Ap-pellees on the contractual issues which it did. We agree with the district court that the judgment rendered in favor of the Appellees renders the constitutional prohibition against donations of public property and the ultra vires lack of authority issues moot. We further find that Lpdeciding these issues, whether on appeal or at the district court level, serves no useful purpose and does not afford OLD any practical relief.

As stated above, we are also of the opinion that the instant case is a result of a contractual relationship between the parties and that the district court was not manifestly erroneous in enforcing that clear language of the contract, and dismissing the Reconventional Demand filed by OLD.

Decree

For the reasons stated herein, we affirm the judgment of the district court granting the Appellees’ declaratory relief through their Motion for Summary Judgment, and dismissing the Reconventional Demand of the Board of Commissioners of the Orleans Levee District on the doctrine of mootness.

AFFIRMED.

TOBIAS, J., dissented in part and filed written opinion.

| TOBIAS, J.,

dissents in part.

I respectfully dissent in part.

Because the appellant, the Board of Commissioners of the Orleans Levee District, appeals the granting of a motion for summary judgment, our de novo review requires us to ascertain whether a genuine issue of material fact exists. A genuine issue of material fact exists which precludes, for the present, the granting of the motion for summary judgment in its entirety of the appellees, Messrs. Fourroux, Betpouey, Hibbets, and Saia. The issue of the constitutional prohibition against the donation of public property is not, as the majority finds, moot, and I would remand for further proceedings on that issue.

La.R.S. 38:336 permits the appellant to lease “lands reclaimed.. .under such terms and conditions and by such methods as the board may deem proper.” The record on appeal is devoid of evidence that the property leased by the appellees, and for which each of the appellees sought in the 1994/1995 period three successive five-year options to extend their respective leases with the first option to extend to commence in the 2006/2007 time frame, consists of “lands reclaimed.” This statutory provision must be read in the context of the constitutional prohibition against the donation of public property contained in Article VII Section 14, of the Louisiana Constitution.

| ¡/The subject leaseholds had improvements made by the lessees, which improvements at the time of the negotiations between the appellant and appellee were in different conditions, varying from leasehold to leasehold. That is, none of the appellees would make further material improvements to their leaseholds if they knew that the appellant was not going to grant them the option to extend their leases beyond the expiration of their respective leases. The value of the improvements on each leasehold at the time that the options were formally granted in 1995 is not established by the record on appeal. That is, it is possible that the rentals established in the options may have been fair and reasonable in 1995 given the then existing condition of the leasehold improvements and the projected condition of the improvements when the leases would expire; if so, no violation of the constitutional prohibition against donation of public property would have occurred. The appellees themselves concede in brief filed in this court that a genuine issue of material fact exists; they state:

Finally, the third argument contained in the reply brief of the OLD/appellant is that the OLD/appellant provided sufficient factual support that the consideration it received for the Lease Amendments was inadequate, and therefore the Lease Amendments at issue are null and void under the Louisiana Constitution ... The OLD/appellant argues simply that based on the improvements made to the leaseholds over time, that the OLD/appellant has not received sufficient consideration from the plaintiffs/appellees for the value of these improvements. In other words, the sole record evidence upon which the OLD/appellant bases its claim that it has received insufficient consideration for the Lease Amendments at issue is that the record contains “judicial admissions” in the pleadings by the plaintiffs/appel-lees that they have made improvements to the leaseholds. This argument falls for several reasons.
First, there is no record evidence that the amount of consideration received by the OLD does not take into account the value of the improvements. In other words, the various lessees of the water bottoms have been improving the boathouses since the leases were first issued in 1972. Yet, the OLD made no claim that it failed to receive adequate consideration for the past 30 years. Only now, when it suits its interest, does it allege lathat the consideration is inadequate. Yet, there is no evidence in the record as to what amount of rent would be adequate consideration in light of any improvements on the boathouses.
Second, there is no record evidence that the amount of consideration currently being received by the OLD/appellant for the leases at issue does not equal or exceed the speculative value of any future reversionary rights to acquire this depreciating property in the year 2007. It is incumbent upon the OLD/appellant when opposing a motion for summary judgment on an issue upon it which it bears the burden of proof, (i.e., its reconventional demand that the leases are unconstitutional) to come forward and submit evidence that it did not receive adequate consideration with regard to the leases. There is no such evidence in the record. There is simply no testimony, no documents and no factual support anywhere in the record that the amount of consideration received by the OLD/appellant is insufficient and thereby renders these leases null and void pursuant to the Louisiana Constitution. Due to the complete lack of any such evidence in the record, the trial court properly granted summary judgment in favor of the plaintiffs/appellees. [Emphasis in original]

The matters that the appellees address in the above quotation are not things that were ascertained at the time of the trial of the motion for summary judgment. The appellees put forth no evidence of the value of the improvements on their leaseholds at the time of their negotiations or signing of the lease amendments with the appellant. Nothing existed for the appellant to rebut. The issue must be resolved at trial. The motion for summary judgment was not ripe for disposition.

As a practical matter, the appellees would in 1995 make no further leasehold improvements of any significance without first obtaining options to extend their leases beyond 2007, especially in view of the remaining years left on the term of their leases and the location of the improvements — sitting on the bed of Lake Pontchartrain, and arm of the sea, outside the hurricane protection levee in a marine environment where wear and tear by the elements can depreciate improvements rapidly. Nevertheless, both the appellant and appellees may have borne some obligation in 1995 to obtain opinion letters from counsel as the validity of the [ ¿options to extend the leases, which would have negated the present problem relating to the constitutional prohibition of donation of public property as addressed by the 29 March 2000 opinion letter of the Louisiana Attorney General. The issue of whether the appellant is estopped from asserting the invalidity because of, inter alia, the delay between execution of the amendments and the dispute, would appropriately be addressed at trial.

I, therefore, would reverse the judgment in part and remand for further proceedings on the issue of the constitutional prohibition of donation of public property.


source: Caselaw Access Project

author: J^ROTHSCHILD, Judge.

license: Public Domain

text:
    Dan C. FRISARD v. STATE FARM FIRE AND CASUALTY COMPANY, et al.
    No. 02-CA-987.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 28, 2003.
    Rehearing Denied March 5, 2003.

      Dan C. Frisard, Metairie, LA, pro se.
    Thomas G. Buck, Metairie, LA, for Por-teous, Hainkel, Johnson and Sarpy Law Firm, L.L.P. and William Lozes, Defendant/Appellee.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., MARION F. EDWARDS and WALTER J. ROTHSCHILD.
   J^ROTHSCHILD, Judge.

This is an appeal from a judgment of the trial court granting defendants’ exception of improper venue. For the following reasons, we affirm the trial court’s judgment.

Plaintiff, Dan Frisard, brought the present lawsuit for breach of contract and malpractice against the following defendants: State Farm Fire and Casualty Company, the law firm of Porteous, Hainkel, Johnson and Sarpy, and attorneys William Lozes and David Sirera. The petition alleged that as the liability insurer of plaintiff, State Farm appointed the Porteous law firm to legally defend plaintiff in several lawsuits brought against him in the 22nd and the 24th Judicial District Courts. Plaintiffs defense was handled for the Porteous firm by attorneys Lozes and Sir-era. Plaintiff alleged in his petition that State Farm breached its contract to provide him with independent competent legal counsel and that the attorneys’ actions in failing to properly defend plaintiff in these lawsuits constituted malpractice.

Plaintiffs lawsuit was filed in the 24th Judicial District Court in Jefferson Parish. State Farm subsequently filed an answer to this petition generally denying the allegations therein. Thereafter, William Lozes and the |sPorteous firm filed an exception of improper venue and a motion to transfer the case to the 22nd Judicial District Court where Mr. Lozes was domiciled. By judgment rendered on May 31, 2002, the trial court granted this exception and ordered that the case be transferred to St. Tammany Parish. In its reasons for judgment, the trial court relied on the general rules of venue contained in La. C.C.P. art 42 which state that suit against an individual domiciled in the state of Louisiana shall be brought in the parish of his domicile. The court determined that the domicile of the primary defendant, Mr. Lozes, was in St. Tammany Parish, and that suit against him should have been brought in that parish.

By this appeal, Mr. Frisard contends that the trial court erred in failing to apply the exceptions to the general venue rules contained in La. C.C.P. articles 74 and 76.

The general rules of venue provide that suit against an individual who is domiciled in the state shall be brought in the parish of his domicile. La. C.C.P. art. 42. Plaintiff relies on an exception to this general rule, La. C.C.P. art. 74, which provides in part as follows:

An action for the recovery of damages for an offense or quasi offense may be brought in the parish where the wrongful conduct occurred, or in the parish where the damages were sustained ...

The Louisiana Supreme Court has held that in a malpractice action, venue is proper in the parish where the wrongful conduct occurred. Chambers v. LeBlanc, 598 So.2d 337, 337-338 (La.1992). Appellant contends that the wrongful conduct in this case as alleged in the petition occurred in Jefferson Parish when defendants failed to file certain pleadings in the case filed against him in the 24th Judicial District Court, and that | ¿venue is therefore proper in Jefferson Parish based on article 74. We disagree.

The record in this matter indicates that the defendant, Mr. Lozes, is a resident of St. Tammany Parish. His law office and his entire practice are located in St. Tammany Parish. Mr. Lozes performs all of his legal work in St. Tammany Parish, and neither Mr. Lozes nor his law firm have an office in Jefferson Parish.

Paragraph 22 of plaintiffs petition contains a listing of the basis for his malpractice claims against Mr. Lozes and his law firm. The majority of the allegations in this paragraph relate to actions in the 22nd Judicial District Court in St. Tammany Parish. Although plaintiff also asserts that defendants failed to file pleadings on his behalf in the Jefferson Parish suit, this allegation alone fails to establish that defendants’ alleged wrongful conduct occurred in Jefferson Parish. Rather, a review of the record in this matter indicates that any alleged wrongful conduct on the part of defendants occurred in St. Tammany Parish where their law offices were located. In this case, the acts or failure to act on the part of defendants occurred in their law offices where they handled the defense of the lawsuits filed against Mr. Frisard.

Based on the evidence of record, we find no manifest error in the trial court’s determination that Jefferson Parish was an improper venue for this case. Indeed, the evidence is overwhelming that Mr. Fri-sard’s malpractice action against Mr. Lozes and his firm arose in St. Tammany Parish.

Appellant also contends that venue is proper in Jefferson Parish pursuant to La. C.C.P. art. 76. However, the present suit does not constitute an “action on an insurance policy” as referred to in that article. In this case, the insurer provided the insured with defense counsel as required by the ^contract, and this is not a case wherein the insured is seeking to collect on an insurance policy as contemplated by La. C.C.P. art. 76.

Thus, our review of the record in this case indicates that appellant has failed to establish the applicability of any of the exceptions to the general rule of venue requiring suit to be brought against an individual in the parish of his domicile. La. C.C.P. art. 42. Accordingly, the judgment of the trial court maintaining defendants’ exception of venue and transferring this case to the 22nd Judicial District Court is affirmed. Appellant is to bear all costs of this appeal.

AFFIRMED.

      . Attorney David Sirera was not named in this motion.


author: I,STEWART, J.

text:
    Allen T. LEE, III, Plaintiff-Appellant, v. KEN BURNHAM CHEVROLET/OLDSMOBILE, Defendant-Appellee.
    No. 36,807-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 29, 2003.
    Lacey P. Wallace, Shreveport, for Appellant.
    Hayes, Harkey, Smith & Cascio, by Charles S. Smith, Monroe, for Appellee.

      Before BROWN, STEWART and HARRISON (Pro Tempore), JJ.
   I,STEWART, J.

Allen Lee (“Lee”) appeals the trial court’s grant of the defendant’s, Ken Burnham Chevrolet/Oldsmobile (“Burn-ham”), exception of res judicata concerning his claim of retaliatory discharge. For the reasons following, we reverse and remand for proceedings consistent with this opinion.

FACTS

Ken Burnham Chevrolet/Oldsmobile hired Allen Lee in September of 1996. Lee suffered an injury during the course and scope of his employment on February 10, 1999. After recuperating from his surgery, Lee returned to Burnham and performed light duty work. Lee settled his workers’ compensation claim on September 21, 2000 for a lump sum payment of $60,000. In conjunction with the settlement, Lee and Burnham executed a receipt and release regarding the workers compensation claim which stated that Lee released Burnham from “damages for wrongful or retaliatory discharge.” After returning to work, Lee was terminated from his job ostensibly for a lack of work.

Lee filed this action on August 10, 2001. Burnham responded by filing a peremptory exception of res judicata alleging that the workers’ compensation settlement documents constituted res judicata of the is-' sues raised in Lee’s suit, particularly his claim of retaliatory discharge. The trial court granted the exception and Lee appeals.

DISCUSSION

Res Judicata

The general rule announced by the Louisiana Supreme Court in Brown v. Drillers Inc., 93-1019 (La.1/14/94), 630 So.2d 741 is that | ¡.settlement agreements are to be strictly construed with a presumption against res judicata. Res judicata requires three essential elements: (1) the thing demanded must be the same; (2) the demand must be founded on the same cause of action; and (3) the demand must be between the same parties and formed by them against each other in the same quality. La. R.S. 13:4231.

In Sampson v. Wendy’s Management, Inc., 593 So.2d 336 (La.1992), the Louisiana Supreme Court explained that workers’ compensation claims and claims for retaliatory discharge are two distinct causes of action. Jurisdiction of all workers’ compensation matters is vested solely with the Office of Workers’ Compensation. La. R.S. 23:1310.3(A)(4). On the other hand, jurisdiction over a claim for retaliatory discharge is vested in the district court. An action for retaliatory discharge is not a workers’ compensation claim or matter as there lacks a nexus between the claims.

We reject Burnham’s claim that the retaliatory discharge claim is barred by contract, that is the receipt and release. The res judicata effect of the receipt and release is limited. When one looks to the scope of the compromise, only those ideas which are clearly expressed within the four corners of the document can be used to determine the compromise’s effect. However, absent some substantiating evidence of mistaken intent, no reason exists to look beyond the four corners of the instrument to ascertain intent. Brown, supra. The language in the receipt and release executed by Mr. Lee on September 21, 2000, underscores this distinction.

1 aThe pertinent language is as follows:

Mr. Lee discharged the Defendant “... from all claims for workers’ compensation benefits, ... benefits for wrongful or retaliatory discharge and any other claims of whatsoever nature in kind arising heretofore, or which may hereafter arise as a result of the accident that was alleged to have occurred on or about February 10, 1999, which was alleged to have resulted in personal injury to me. (Emphasis added).

The clause clearly contemplates two causes of action: those that had vested before the release, and any other causes that arise as a result of the accident after the release. Clearly, the cause of action for retaliatory discharge had not vested prior to the release because Lee had not been fired. Secondly, the retaliatory discharge was not a cause of action arising out of the accident, so it was not foreclosed by the release. The clause in the release of claims only released claims arising heretofore. Lee asserts that this encompasses only claims existing prior to the date of the release. The wrongful termination claim did not exist until after the compromise. The second clause of the release only applies to claims which may hereafter arise; but those claims were further limited to those that arise as a result of the accident. The retaliatory discharge claim does not arise out of the accident, but rather out of the post release conduct of Burnham. Thus, his claim is unaffected by the receipt and release. Moreover, the contract must be interpreted against the drafter. La. C.C. art.2056. Burnham’s clause limiting the release to incidents arising out of the accident must be construed in favor of Lee and preclude a finding of res judicata.

A workers’ compensation claimant cannot waive a retaliatory discharge claim if, at the time of the receipt and release, he has not been 1¿discharged. See Bailey v. Martin Brower Co., 94-1179 (La.App. 1 Cir. 4/7/95), 658 So.2d 1299. Burnham cites Atwell v. National Safety Consultants, Inc., 97-1561 (La.App.3d. Cir.4/1/98), 713 So.2d 495, for the proposition that a court will find res judicata on a cause of action waived in a release. However, Atwell is distinguishable from the instant case in that the release barred a tort claim for wrongful conversion of funds that had already occurred at the time of the release. Thé discharge in this case did not occur until after the execution of the release.

In sum, a valid and final judgment is conclusive only as to causes of action existing at the time of final judgment. La. R.S. 13:4231(1) and (2). The retaliatory discharge claim did not exist until after the entry of the valid and final judgment in this case. Consequently, a claim for retaliatory discharge is not a claim that falls within the ambit of a workers’ compensation case and cannot be subject to res judicata in a matter arising separately from the settlement. See Hebert v. Mid South Controls & Services Inc., 96-378 (La.App. 3d Cir.10/9/96), 688 So.2d 1171, twit denied 96-2708 (La.2/21/97), 688 So.2d 523, cert denied, 522 U.S. 814, 118 S.Ct. 61, 139 L.Ed.2d. 24 (1997). The WCJ had no authority over the retaliatory discharge claim; therefore, it could not have been settled by the WCJ.

We also note that under La. C.C. art. 2003, a tort victim cannot relinquish by contract, in advance, his right to recover for damages caused by the fault of another when: (1) the contract or clause waives a victim’s right to recover because of damages caused by the intentional or gross fault lRof the other party; and (2) when the contract or clause waives a victim’s right to recover because of his physical injury. Lee contends that the retaliatory discharge claim arises out of Burnham’s intentional conduct toward him, and by its very nature, cannot be obviated by contract. While we make no finding with regard to the motive behind Lee’s firing, it is obvious that it was an intentional act by Burnham.

CONCLUSION

For the reasons expressed above, we find that the trial court was incorrect in sustaining the defendant’s exception of res judicata, and remand this matter for proceedings consistent with this opinion. Costs of this appeal are assessed to the appellee.

REVERSED AND REMANDED.


author: LBROWN, C.J.,

text:
    Donald Lane SOUTHERLAND, et ux, Plaintiffs-Appellants, v. CONTINENTAL CASUALTY COMPANY, Defendant-Appellee, Ryan’s Family Steakhouses, Inc., Intervenor-Appellee.
    No. 36,782-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 29, 2003.
    Rehearing Denied Feb. 27, 2003.
    Alex S. Lyons, for Appellant.
    Mayer, Smith & Roberts by: Dalton Roberts Ross, for Appellee.

      Christopher K. Lightfoot, Gabriel J. Veninata, for Intervenor-Appellee, Ryan’s Family Steakhouses, Inc.
    Before BROWN, WILLIAMS and GASKINS, JJ.
   LBROWN, C.J.,

Donald Southerland worked for Ryan’s Family Steakhouse in Bossier City, Louisiana, and was injured in an automobile accident while driving his own vehicle in the course and scope of his employment. It is alleged that a third party tortfeasor was solely at fault. The tortfeasor’s liability insurer paid its policy limits of $10,000. Southerland and his wife filed this action against his employer’s uninsured/underin-sured carrier, Continental Casualty Company.

Continental filed a motion for summary judgment asserting that its insurance policy afforded no UM coverage to Donald Southerland. The motion was granted and the Southerlands’ claims were dismissed. Southerland and his wife have appealed. We affirm.

Discussion

The Policy

In effect at the time of the accident was a business automobile insurance policy issued by Continental to Ryan’s Steakhouse, the named insured. It provided $1,000,000 liability coverage for “Covered Autos” designated by the symbol “1” and $1,000,000 Uninsured/Underinsured Motorists coverage for “Covered Autos” designated by the symbol “2.” The symbol “1” refers to “any auto.” The symbol “2” refers to

OWNED “AUTOS” ONLY. Only those “autos” you own.... This includes those “autos” you acquire ownership of after the policy begins.
| ¡.,Coverage under the UM Endorsement

Subsection “B (5)” of the UM endorsement reads as follows:

B. WHO IS AN INSURED
1. You.
* * *
5. Anyone else “occupying”- an “auto” you do not own and that is a covered “auto” under this coverage part for Liability Insurance and is licensed or principally garaged in Louisiana. (Emphasis added).

Thus, the question is, “What is a covered auto?”

The Louisiana Supreme Court answered this inquiry in Carrier v. Reliance Insurance Company, 99-2573 (La.4/11/00), 759 So.2d 37. After reviewing the state and federal jurisprudence interpreting similar policy language triggered by circumstances identical to the instant case, the supreme court concluded that the only reasonable interpretation limited coverage to “specifically described autos.” Therefore, plaintiff was not covered under the UM endorsement because his vehicle was not described in his employer’s policy.

In the present case, the restricting phrase was “covered ‘auto’ under this coverage part ...” In Dunn v. St. Paul Fire & Marine Insurance Company, 33,904 (La.App.2d Cir.09/27/00), 768 So.2d 720, writ denied, 00 3014 (La.12/15/00), 777 So.2d 1235, this court found no distinction between this phrase and the “specifically described autos” language in Carrier. Thus, because Southerland’s vehicle was not described in the policy, he was not occupying a covered auto and was not an insured under the UM endorsement.

| a-Does La. R.S. 22:1406 extend UM coverage?

Alternatively, Southerland argues that, even if the UM endorsement does not extend coverage to him, he is an insured under the liability provisions of the policy and UM coverage should attach to him. The basis of this argument is rooted in La. R.S. 22:1406, which mandates that UM coverage is an implied amendment to any automobile insurance policy delivered in Louisiana unless validly rejected. Magnon v. Collins, 98-2822 (La.07/07/99), 739 So.2d 191.

Southerland argues that because he qualifies as an insured under the liability portion, and there is no evidence that he or his employer executed a valid rejection form, UM coverage should attach to him. Continental, however, argues the legislatively created exception found in La. R.S. 22:1406(D)(l)(e), which reads as follows:

The uninsured motorist coverage does not apply to bodily injury, sickness, or disease, including death of an insured resulting therefrom, while occupying a motor vehicle owned by the insured if such motor vehicle is not described in the policy under which a claim is made, or is not a newly acquired or replacement motor vehicle covered under the terms of the policy. This provision shall not apply to uninsured motorist coverage provided in a policy that does not describe specific motor vehicles. (Emphasis added).

Even assuming that Southerland would be an insured under the liability endorsement, La.R.S. 22:1406(D)(1)(e) specifically states that the mandatory UM coverage does not apply to bodily injury of the insured while the insured is occupying a vehicle owned by the insured but not described in the insurance policy. Souther-land (the alleged insured) was |4injured while driving a vehicle he owned that is not described in Continental’s policy. Therefore, this argument is without merit.

Conclusion

For the foregoing reasons, we affirm the summary judgment of the trial court in favor of the defendant Continental. Costs of this appeal are assessed to plaintiffs.

AFFIRMED.

APPLICATION FOR REHEARING

Before BROWN, C.J., WILLIAMS, GASKINS, DREW, and MOORE, JJ.

Rehearing denied.

      . The employer, Ryan’s Family Steakhouse, Inc., intervened, seeking to recover workers’ compensation benefits it paid from any award made to Southerland.


author: h CARAWAY, J.

text:
    Regina ROBINSON, Plaintiff-Appellee, v. HEALTHWORKS INTERNATIONAL, L.L.C., Defendant-Appellant.
    No. 36,802-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 29, 2003.
    Rehearing Denied Feb. 27, 2003.

      Stephen G. Dean, Rayville, James A. Rountree, for Appellant.
    Courtman Employment Law Firm by: Matthew Maxwell Courtman, Robert Allen Lee, Monroe, for Appellee.
    Before CARAWAY, PEATROSS and DREW, JJ.
   h CARAWAY, J.

Plaintiff left her former business and accepted employment with the defendant. After eight months, plaintiff quit her employment, claiming that she had been discriminated against on the basis of religion. She brought this suit for discrimination claims and for detrimental reliance concerning her change in employment. A jury awarded her judgment on both claims. For the following reasons, we affirm the judgment pertaining to employment discrimination, but reverse the judgment on plaintiffs detrimental reliance claim.

Facts

Healthworks International, L.L.C. (“Healthworks”) employed plaintiff, Regina Robinson, from July of 1999 to March of 2000. Prior to her employment at Healthworks, Robinson and her current husband, Mike Johnson, owned and operated a business which made plastic display cases and repaired plastic tanks for farmers. They repaired approximately four tanks per week and sold approximately 200 plastic displays per week to Healthworks.

In March of 1998, Sam Noble and Ivan Hawthorne, the owners of Healthworks, approached Robinson and Johnson and asked them to work for the company. Healthworks wanted to produce the plastic displays in-house. Robinson and Johnson agreed to begin working there. At that time, Robinson and Johnson lived in West Carroll Parish and Healthworks’ plant was located in Winnsboro. Robinson was employed as a “bending and assembly supervisor,” which included the task of bending plastic used in the | ^manufacturing process. Robinson’s starting wages were $7.50 per hour, and she claims that Health-works offered to pay her $10 per hour after she was employed for six months.

Robinson is a Baptist. The other employees of Healthworks, including management, are Apostolic. Robinson stated that Mark Batterton, the operations manager, told her that women had to wear skirts to work. Prayer meetings were conducted every morning and Robinson was expected to attend those meetings.

She was also expected to attend the same church that the other employees and management attended, the Apostolic Tabernacle. At her first visit to the Tabernacle, she wore a dress with short sleeves. She also wore make-up and lipstick. Robinson testified that at that service the preacher pointed at her and called her a “Jezebel.” During her second visit to the church with Johnson, the preacher commented that people with facial hair were evil. Johnson was the only person there with a beard.

According to Robinson, other employees ridiculed her about her religion. Don Bat-terton, a company supervisor, informed her that, according to the Bible, men were superior to women and that God would forgive her for being Baptist. Robinson testified that Batterton also played loud “preaching” tapes at the work site. The tapes were so loud that Robinson could not concentrate. On one occasion when Robinson’s daughter was sick, Batterton instructed her to not take her daughter to the doctor and to let God heal her.

| ^Robinson also testified that management and other employees also chanted and screamed, “We shall fear no evil.” Employees looked at her and told her that there was an evil spirit in the factory and that they were going to cast out the evil spirit. On her last day of employment, one employee, Gloria Jackson, said, “God told me that someone was going to quit.”

Procedural History and Jury Verdict

Robinson’s petition urged various claims against Healthworks. She asserted an action for detrimental reliance, claiming that she had relied on Healthworks’ promise to raise her salary to $10 per hour after her first six months of employment. After six months, she did not receive the raise. She further alleged that Healthworks’ employment promises had caused her to abandon her plastics business in West Carroll Parish, and such business could not be reestablished. Robinson also alleged claims for unlawful discrimination based on religion and gender.

Robinson requested a jury trial. In the jury charge, the trial court instructed the jury on two claims', detrimental reliance and religious discrimination. For the religious discrimination claim, the court specifically outlined the law pertaining to a hostile work environment and constructive discharge of an employee.

The jury found that Healthworks unlawfully discriminated against Robinson on the basis of her religion and awarded her $40,000 on that count. The jury awarded Robinson $31,200 in damages on the detrimental reliance claim. Additionally, pursuant to the employment discrimination 1 ¿statute, the trial court awarded Robinson attorney fees in the amount of $16,000.

The first five jury interrogatories were included under the subheading “Detrimental Reliance.” The next six interrogatories were included under the subheading “Religious Discrimination.” The jury answered “yes” to all of the jury interrogatories, which provided as follows:

1. Did Healthworks promise plaintiff $10 an hour after six months and a share of the profits of Health-works?
2. Was the promise made in such a manner that Healthworks knew or should have known that Mrs. Johnson would rely on the promise?
3. Did Mrs. Johnson change her position because of Healthworks’ promise?
4. Was Mrs. Johnson’s reliance on the promise reasonable?
5. Did Mrs. Johnson’s reasonable reliance on the promise cause her damages?
6. Was Mrs. Johnson subjected to harassment?
7. Was the harassment motivated by discrimination against plaintiffs religion?
8. Did the harassment affect a term, condition, or privilege of employment?
9. Did Healthworks know, or should it have known, of the harassment, and if so, did it fail to take proper remedial action?
10. Was Mrs. Johnson subjected to such intolerable working conditions that she was forced to resign?
11. Were the intolerable working conditions the result of religious discrimination?

Answering the last two interrogatories, the jury fixed damages as follows:

12. If the answer to question five is “yes,” state the amount of damages. $31,200.00
1,43- If the answer to question 11 is “yes,” state the amount of damages. $40,000.

Healthworks appeals, raising the following assignments of error:

1. The trial court erred in finding that Robinson was constructively discharged;
2. The trial court erred in allowing Patrick and Christy Acton to testify as rebuttal witnesses; and
3.The trial court erred in awarding damages for both detrimental reliance and constructive discharge.

Robinson answered the appeal seeking additional attorney fees.

Discussion

Louisiana’s anti-discrimination statute provides, in pertinent part, as follows:

It shall be unlawful discrimination in employment for an employer to engage in any of the following practices:
(1) Intentionally fail or refuse to hire or to discharge any individual, or otherwise to intentionally discriminate against any individual with respect to his compensation, or his terms, conditions, or privileges of employment, because of the individual’s race, color, religion, sex, or national origin.
(2) Intentionally limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities, or otherwise adversely affect his status as an employee, because of the individual’s race, color, religion, sex, or national origin.

La. R.S. 23:332(A). This statute mirrors federal law, 42 U.S.C.A. § 2000e, et seq., and because of its similarity, Louisiana courts routinely look to federal jurisprudence for guidance. Spears v. Rountree Oldsmobile-Cadillac Co., 26,810 (La.App.2d Cir.4/5/95), 653 So.2d 182; Plummer v. Marriott Corporation, 94-2025 (La.App. 4th Cir.4/26/95), 654 So.2d 843.

| r,The United States Supreme Court has discussed the “exercise of religion” in an employment setting as follows:

But the “exercise of religion” often involves not only belief and profession but the performance of (or abstention from) physical acts: assembling with others for a worship service, participating in sacramental use of bread and wine, proselytizing, abstaining from certain foods or certain modes of transportation.

Employment Div., Dep’t of Human Resources v. Smith, 494 U.S. 872, 877, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990). In order to prevail in a hostile work environment claim, a plaintiff must assert and prove that: (1) she belongs to a protected group; (2) she was subjected to harassment; (3) the harassment was motivated by discriminatory animus (religion); (4) the harassment affected a term, condition, or privilege of employment; and (5) the employer knew or should have known of the harassment and failed to take proper remedial action. Hicks v. Central Louisiana Elec. Co., Inc., 97-1232 (La.App. 1st Cir.5/15/98), 712 So.2d 656, 658-659, citing Cortes v. Maxus Exploration Co., 977 F.2d 195 (5th Cir.1992).

In an employment discrimination case, a plaintiff may be awarded damages for emotional distress because he or she was subjected to a hostile work environment, economic damages for being discharged, and punitive damages. See, Hanley v. Doctors Hospital of Shreveport, 35,527 (La.App.2d Cir.6/6/02), 821 So.2d 508. To recover damages for emotional distress, a plaintiff must prove actual damages, which may be manifested by anxiety, stress, depression or humiliation. Hanley, supra, citing Carey v. Piphus, 435 U.S. 247, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978). To recover damages for constructive discharge, a plaintiff must prove that the employer intended |7to and deliberately created such intolerable working conditions that the employee was forced into involuntary resignation. See Plummer, supra. Further, the trier-of-faet must find that the conditions were so severe that a reasonable person in the employee’s shoes would have felt compelled to leave. Ugalde v. W.A. McKenzie Asphalt Co., 990 F.2d 239, 243 (5th Cir.1993).

From this review of the law and jurisprudence, we find it important to highlight the distinction between recovery for the hostile work environment caused by employment discrimination and recovery for the employee’s discharge from employment. Healthworks’ assignment of error and argument to this court pertain only to Robinson’s claim for constructive discharge. In making that argument from the facts of the case, Healthworks insists that Robinson was hurt and humiliated on her last day of work by Don Batterton’s handling of another issue on the job which was totally unrelated to her claims of religious discrimination. Healthworks further points to Robinson’s testimony at trial admitting that she had never thought about quitting her job until that day. Apart from these arguments, Healthworks makes no assignment of error or argument disputing the judgment’s award for religious discrimination existing prior to Robinson’s last day of work in the form of a hostile work environment.

As indicated above, the jury was charged to consider both the claims for hostile work environment and constructive discharge. The hostile work environment claim was discussed in the jury charge as a claim which “does not affect an employee’s economical [sic] benefits.” Thus, the jury was | smade aware that damages from such hostile environment would relate to the employee’s emotional pain and suffering. The issue of constructive discharge was briefly discussed in the jury charge. Factors to consider for assessing damages for such discharge were not outlined. Nevertheless, as indicated by the jurisprudence and implied in the jury charge, a successful constructive discharge claim is remedied by consideration of the economic damages an employee suffers because of the loss of her job.

With these distinctions between the two claims, the jury determined that Robinson was both subjected to religious harassment (Jury Interrogatories Nos. 6 and 7) and forced to resign (Jury Interrogatory No. 10). Nevertheless, the award for damages set forth in the answer to Jury Interrogatory No. 13 was not apportioned between the two claims. The jury awarded $40,000 in damages, which, under the format of the interrogatories, can be viewed either as an award for the hostile work environment or the constructive discharge claim, or both. Healthworks did not object to the jury interrogatories to require that different damages for each claim be determined separately.

Under these circumstances, even if we were to agree with Healthworks’ contesting the claim for constructive discharge, the claim for the hostile work environment remains uncontested by Healthworks’ assignments of error and argument. Healthworks likewise presents no argument that $40,000 is an inappropriate award for the hostile work environment claim, and we will not disturb that award under the circumstances of this case. Accordingly, that award is affirmed, and | cHealthworks’ assignment of error regarding Robinson’s constructive discharge is without merit.

Healthworks next argues that the trial court erred in allowing Patrick and Christy Acton to testify. Robinson called them as rebuttal witnesses.

To preserve an evidentiary issue for appellate review, it is essential that the complaining party enter a contemporaneous objection to the evidence or testimony and state the reasons for the objection. La. C.E. art. 103; Stephens v. Town of Jonesboro, 25,715 (La.App.2d Cir.8/19/94), 642 So.2d 274, units denied, 94-2351, 646 So.2d 400, 94-2557, 646 So.2d 400, 94-2577 (La.11/29/94), 646 So.2d 400.

Additionally, the plaintiff in a civil case and the state in a criminal prosecution shall have the right to rebut evidence adduced by their opponents. La. C.E. art. 611(E). The district court has great discretion in controlling the presentation of evidence, including the power to admit or refuse to admit rebuttal evidence. White v. McCoy, 552 So.2d 649 (La.App. 2d Cir. 1989). Rebuttal evidence is that which is offered to explain, repel, counteract, or disprove facts given in evidence by the adverse party. State v. Castleberry, 98-1388 (La.4/13/99), 758 So.2d 749. The determination of whether evidence is rebuttal evidence and thus admissible, is referred to the sound discretion of the district court. State v. Green, 390 So.2d 1253 (La.1980).

At the time for rebuttal, counsel for Healthworks first objected, but then withdrew his objection and admitted that the Actons could testify in rebuttal. The Ac-tons’ testimony concerned statements made by Mark | inBatterton that tended to impeach his testimony. Defense counsel did make some hearsay objections during Patrick Acton’s testimony, but those rulings have not been raised on appeal. Therefore, although Healthworks objected initially, it withdrew its objection and agreed that the Actons could testify as rebuttal witnesses for impeachment purposes. The trial court did not abuse its discretion regarding this testimony, and there is no merit in this assignment of error.

In its final assignment of error, Health-works argues that the award for religious discrimination and Robinson’s constructive discharge and the award for detrimental reliance are duplicative. Additionally, in response to an inquiry from this court, both parties briefed the issue of Louisiana’s at-will employment law and its impact on the detrimental reliance claim.

Detrimental reliance is addressed in the Civil Code in Article 1967, which, in the broader context of cause for a binding obligation, provides:

Cause is the reason why a party obligates itself.
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.

Detrimental reliance is designed to prevent injustice by barring a party from taking a position contrary to his prior acts, admissions, representations, or silence. Orr v. Bancroft Bag, Inc., 29,046 (La.App.2d Cir.1/22/97), 687 So.2d 1068.

InThe employer-employee contract is nominated as a “lease of labor” in the Civil Code. La. C.C. arts. 2746 and 2747. Article 2747 provides that while the employer is at liberty to dismiss the employee “without assigning any cause,” the employee “is also free to depart without assigning any cause.”

Thus, Louisiana law provides for two types of employment situations: (1) the terminable at-will contract, and (2) the limited duration contract. Nicholas v. Allstate Ins. Co., 30,735 (La.App.2d Cir.5/28/99), 739 So.2d 830, rev’d on other grounds at 99-2522 (La.8/31/00), 765 So.2d 1017; Deus v. Allstate Ins. Co., 15 F.3d 506 (5th Cir.1994), cert. denied, 513 U.S. 1014, 115 S.Ct. 573, 130 L.Ed.2d 490 (1994). Absent a specific contract or agreement establishing a fixed term of employment, an employer is at liberty to dismiss an employee at any time for any reason without incurring liability for the discharge. Deus, supra; Williams v. Delta Haven, Inc., 416 So.2d 637 (La.App. 2d Cir.1982). Under a limited duration contract, the parties have agreed to be bound for a certain period during which the employee is not free to depart without assigning cause and the employer cannot dismiss the employee without assigning any reason for such conduct. Brodhead v. Board of Trustees for State Colleges and Universities, 588 So.2d 748, (La.App. 1st Cir.1991) writ denied, 590 So.2d 597 (La.1992).

In Stevenson v. Lavalco, Inc., 28,020 (La.App.2d Cir.2/28/96), 669 So.2d 608, writ denied, 96-0828 (La.5/17/96), 673 So.2d 611, the plaintiff moved from Connecticut to accept defendant’s offer for employment in Louisiana. Approximately six months later, the defendant terminated |1P.Stevenson, and Stevenson filed suit alleging, among other things, that he had relied on the defendant’s representation to his detriment. This court, in Stevenson, stated the following:

The parties to an employment arrangement such as this one, should know the risks associated with the absence of an employment contract. One of those risks is obviously termination of employment only after a short period of time. Certainly, this situation was contemplated by the legislature which made no provision for it.
Three requirements must be met in order for equitable estoppel to be applied: (1) a representation by conduct or word by the person sought to be es-topped; (2) justifiable reliance thereon; and (3) a change in position because of that reliance to the detriment of the party asserting estoppel. Edwards v. Conforto, 636 So.2d 901 (La.1993).
[Stevenson contends that he] ... justifiably relied on the representations made by the defendant. [He further contends that he] ... sustained a detrimental change in his position and in his family’s position due to his justifiable reliance as shown in prior paragraphs.
After a thorough review of the original and amended petitions, we conclude the only allegations of representations made by Lavalco to Stevenson concerned his employment, which was at will, and his compensation package. Inherent in the “at will” nature of the employment agreement was the possibility that the employment may be terminated at any time, without any cause. Therefore, any claimed reliance on representations that the employment would be permanent or corresponding changes in position thereon are misplaced.

Id. at 611-612.

In this case, as in Stevenson, the undisputed contract which the parties entered was the employment contract. The contract’s reason or cause necessarily encompassed the parties’ mutual understanding that Robinson would no longer work with Johnson in her former business, but would | ^change her position and become employed for wages at Healthworks. The opportunities and economic benefits Robinson gave up were measured against those she was to receive at Healthworks. She cannot now claim damages for the loss of her former job benefits because of her employment contract decision. To insure ongoing economic benefits from her new employment contract with Healthworks, Robinson could have contracted a limited term employment contract. Yet, she does not seek as damages the loss of economic benefits under her employment contract with Healthworks, and she asserts no limited term employment contract. In the absence of any assertion of term employment, the evidence indicates that her employment was at-will.

In contrast, Robinson’s detrimental reliance claim asserts a separate binding obligation or contract altogether contrary to the mutual understanding of the parties’ employment contract. Robinson can make no assertion that she changed her position in reliance on any promise other than Healthworks’ promise under the employment contract. Healthworks rendered performance under the employment contract, and it was free to end the contract at any time.

Accordingly, under these circumstances, where Robinson entered into an at-will employment contract with Healthworks, her claim for detrimental | ureliance to recover losses associated with the end of her former business must be denied. The trial court’s award for the detrimental reliance claim is reversed.

Finally, by Robinson’s answer to the appeal, she contests the trial court’s award of $16,000 for attorney fees and seeks an additional attorney fee award for this appeal. Robinson’s contesting of the trial court’s award through her answer is the equivalent of an appeal. La. C.C.P. art. 2133. Nevertheless, in her brief to this court, she did not discuss the issue nor explain how the trial court erred or abused its discretion in making’the award. Accordingly, pursuant to U.R.C.A. §§ 2-12.4 and 2-12.5, we consider Robinson’s appeal of the award for attorney fees abandoned. Likewise, because of our reversal of a portion of Robinson’s judgment, we decline to award additional attorney fees for this appeal.

Conclusion

For the foregoing reasons, the judgment of $40,000 for religious discrimination in favor of Regina Robinson and against Healthworks, Inc., is affirmed. The judgment of $31,200 for detrimental reliance in favor of Regina Robinson and against Healthworks, Inc., is reversed. Regina Robinson’s appeal for additional attorney fees is denied. Costs of this appeal are assessed to each party equally.

AFFIRMED IN PART AND REVERSED IN PART.

APPLICATION FOR REHEARING

Before GASKINS, CARAWAY, PEATROSS, DREW, and MOORE, JJ.

Rehearing denied.

      . Patrick Acton testified that Mark Batterton called Robinson and Johnson "Egyptians,” as a derogatory term for anyone who was not Apostolic. Christy Acton testified regarding Batterton’s assertions that Healthworks intended to take over Robinson’s plastic business. Batterton had denied both charges in his prior testimony.

      . In Robinson’s testimony, she asserted that the difference between the amount of pay in her former job and her wages at Healthworks was $3900 per month. She then indicated that she was seeking $3900 per month for the eight months she worked at Healthworks, or $31,200. The jury awarded that amount for Robinson’s detrimental reliance claim.

      . Robinson sought damages for the loss of economic benefits under her employment contract with Healthworks only as part of her constructive discharge claim discussed above. The $31,200 in damages she sought and received for her detrimental reliance claim were based upon her assertions regarding the loss of benefits flowing from her former job.


author: | KOSTELKA, J.

text:
    STATE of Louisiana, Appellee, v. Ronnie NORRIS, Appellant.
    No. 36,614-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 29, 2003.
    Rehearing Denied Feb. 27, 2003.

      Louisiana Appellate Project, By: Peggy J. Sullivan, for Appellant.
    Richard Ieyoub, Attorney General, Paul J. Carmouche, District Attorney, Tommy J. Johnson, Lea R. Hall, Assistant District Attorneys, for Appellee.
    Before BROWN, KOSTELKA and DREW, JJ.
   | KOSTELKA, J.

Ronnie Norris (“Norris”) pled guilty as charged to one count of vehicular homicide and received a sentence of seventeen years at hard labor, with the first year imposed without benefit of parole, probation or suspension of sentence. La. R.S. 14:32.1. After the denial of a timely motion to reconsider sentence, Norris appeals his sentence as constitutionally excessive. We affirm the seventeen-year term imposed but remand for modification of that portion of the sentence which is illegally lenient.

Facts

On June 8, 2001, forty-one-year-old Norris was driving a motor vehicle with a suspended driver’s license due to a previous DWI conviction. Norris drove through a stop sign at a Shreveport, Louisiana intersection and into the path of an eighteen-wheeler. The truck struck the side of Norris’s vehicle where Juanita Collier (“Collier”) was a passenger; she sustained massive, fatal injuries at the scene. A subsequent blood test showed Norris’s blood alcohol content to be .13 percent at the time of the accident.

Discussion

On appeal, Norris argues that the trial court failed to adequately comply with the provisions of La.C.Cr.P. art. 894.1 and imposed an excessive sentence. However, a review of the grounds set forth in his motion to reconsider sentence shows that Norris failed to raise as an issue the adequacy of the trial court’s compliance with La.C.Cr.P. art. 894.1. Accordingly, he is now precluded from raising this ground on appeal. La.C.Cr.P. art. 881.1.

LNor can we find the term of the sentence imposed to be excessive. For his vehicular homicide conviction, Norris faced a potential sentencing exposure of not less than two nor more than twenty years with at least one year without benefits, a mandatory fine of not less than two thousand nor more than fifteen thousand dollars, and a requirement to participate in a court-approved substance abuse program or driver improvement program, or both. La. R.S. 14:32.1.

A sentence violates La. Const, art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Hogan, 480 So.2d 288 (La.1985); State v. Bradford, 29,519 (La.App.2d Cir.04/02/97), 691 So.2d 864.

A trial court has broad discretion to sentence within the statutory limits. Where a defendant has pled guilty to an offense which does not adequately describe his conduct or has received a significant reduction in potential exposure to confinement through a plea bargain, the trial court has great discretion in imposing even the maximum sentence possible for the pled offense. State v. Black, 28,100 (La.App.2d Cir.02/28/96), 669 So.2d 667, writ denied, 96-0836 (La.09/20/96), 679 So.2d 430. Absent a showing of manifest abuse of that discretion, a reviewing court may not set | aaside a sentence. State v. Guzman, 99-1528 (La.05/16/00), 769 So.2d 1158.

Before imposing 'the seventeen-year term in this case, the trial court heard testimony from the victim’s brother who testified regarding how the death of Collier adversely affected her family. Additionally, the court considered a letter from the victim’s daughter, evidence of Norris’s two previous DWI convictions and the discovery the state has filed into the record. The court also considered letters from Norris’s family, friends and employer. In sentencing Norris, the trial court stated that it had reviewed the facts surrounding the case, including the nature of the accident, i.e. that Norris ran a stop sign. The court also noticed Norris’s criminal history which included two prior DWI convictions, one of which occurred only a year prior to the present incident. The court considered Norris’s impairment at the time of the accident and stated that the accident could have been avoided. Additionally, the court noted that the victim lost her life as the result of Norris’s choices.

Despite Norris’s contrary contentions, the record before us is clear that the trial court took into consideration Norris’s impairment prior to sentencing. Moreover, after reviewing Norris’s criminal history, the court obviously concluded that incarceration was the appropriate treatment for this offender. Certainly, considering Norris’s continued failure to respond to prior leniency in sentencing, this determination is well within the broad discretion given to the trial court in tailoring the sentence to him. Nor can we find the upper range sentence inappropriate for Norris. Despite two | ¿previous opportunities for rehabilitation, Norris once again chose to drink and drive, this time with blatant disregard for the sanctity of another human life. While his earlier choices to drink and drive might have resulted in no obvious consequences, in this instance, Norris’s decision caused the loss of a life for which criminal culpability attaches. In these circumstances, Norris can be classified as a serious offender for whom a seventeen-year sentence is appropriate.

Nevertheless, a review of the sentence imposed reveals that the trial court failed to impose a fine as required by La. R.S. 14:32.1. Nor did the court order participation in a substance abuse or a driver improvement program, or both, as required by this statute. Accordingly, though the state has neglected to seek appellate or supervisory relief, and because the trial court is given discretion in assessing the amount of the fine imposed under La. R.S. 14:32.1, it is appropriate that we remand for resentencing in accordance with State v. Williams, 2000-1725 (La.11/28/01), 800 So.2d 790.

SENTENCE AFFIRMED IN PART; REMANDED FOR PARTIAL RESEN-TENCING.

APPLICATION FOR REHEARING

Before BROWN, C.J., WILLIAMS, STEWART, KOSTELKA, and DREW, JJ.

Rehearing denied.

      . We recognize that the trial court may have concluded that a fine and participation in a substance abuse program or a driver improvement program are unnecessary in light of the sentence imposed. Nevertheless, the statute of conviction makes such imposition mandatory.


author: hPEATROSS, J.

text:
    LOUISIANA DEPARTMENT OF AGRICULTURE AND FORESTRY and Louisiana Agricultural Finance Authority, Plaintiffs-Appellants, v. LOUISIANA STATE LICENSING BOARD FOR CONTRACTORS, Defendant-Appellee.
    No. 36,694-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 29, 2003.

      Gelpi and Associates by C. James Gelpi, David McFadden, Dan Zimmerman, James Marvin Montgomery, New Orleans, for Appellants.
    Paul J. McMahon, III, Lafayette, for Appellee Louisiana State Licensing Board for Contractors.
    Virgil Russell Purvis, Jr., Jonesville, for Intervenor/Appellee, Everett Mayo.
    Before STEWART, GASKINS & PEATROSS, JJ.
   hPEATROSS, J.

This appeal arises from a trial court judgment awarding partial relief to plaintiffs, Louisiana Department of Agriculture and Forestry (“Department”) and Louisiana Agricultural Finance Authority (“LAFA”), under the Contractors Licensing Law exemption found in La. R.S. 37:2157(A)(2). Plaintiffs, Department and LAFA, now appeal the judgment of the trial court. For the reasons stated herein, we amend the judgment of the trial court and, as amended, affirm.

FACTS

LAFA, under La. R.S. 36:629(K), is an agency created within the Department. Under La. R.S. 3:266(14), LAFA has the power to acquire immovable property and to own and construct public work projects on the property. LAFA is the owner of various properties around the state, including properties in Monroe, Winnsboro, Jonesville, Minden and Oak Grove, on which it has constructed or is planning to construct a number ofj^public work projects. The public work projects on these various properties are the public work projects at issue in this case. The goal of these projects is to carry out Louisiana’s Boll Weevil Eradication Program. The Legislature authorized LAFA to use its powers to implement this program. LAFA, using its own employees, equipment and material, began construction of office and related work space at the aforementioned properties after it received approval from the State Bond Commission to sell bonds to finance these public work projects.

Soon after construction of the various public work projects began, the defendant, Louisiana State Licensing Board for Contractors (“Licensing Board”), issued a series of cease and desist orders directing the Department and LAFA to cease and desist any activity, conduct or practice then being undertaken concerning the public work projects at issue. Created under La. R.S. 37:2150, et seq. (“Contractors Licensing Law”), the Licensing Board |3has the authority to monitor construction projects to ensure compliance with contractors licen-sure requirements. In the instant case, the Licensing Board objected to LAFA’s use of its own public employees, equipment and material in carrying out the public work projects at issue, insisting that LAFA had to retain a licensed contractor, who, in turn, would provide the workers, equipment and materials needed in carrying out these public work projects. LAFA disagreed with the Licensing Board’s actions, but agreed to retain a licensed contractor, Mr. Everett Mayo (“Mayo”), to supervise, superintend and oversee the public works at issue. The Licensing Board, however, continued its efforts to enforce the cease and desist orders it had previously issued, arguing that, in effect, Mayo had allowed his license to be used by LAFA because Mayo had provided only one employee for only one project site, while all other personnel on the various projects continued to be employees of the Department and LAFA. Moreover, the Licensing Board asserted that, because these actions showed that LAFA was acting as a contractor, which is prohibited by La. R.S. 37:2154(A)(4), it was violating the Contractors Licensing Law.

[4The Department and LAFA filed suit on April 21, 1999, asking the trial court for a declaratory judgment, to issue a temporary restraining order and to issue a preliminary and permanent injunction against the Licensing Board in order to prevent further enforcement of its cease and desist orders. Specifically, the Department and LAFA asked the trial court for a declaratory judgment that would give LAFA the authority to use its own employees, equipment and material in carrying out the public work projects at issue in this case. On the same day the suit was filed, the trial judge granted a temporary restraining order against the Licensing Board; and, on April 27, 1999, the trial judge granted a preliminary injunction prohibiting the Licensing Board from taking any action to enforce the cease and desist orders. Trial on the permanent injunction was set for May 18, 1999. Before the trial, the Licensing Board filed an answer and recon-ventional demand against the Department, LAFA and Mayo, seeking a permanent injunction to prohibit them from utilizing any public employees on the public works projects in Monroe or Oak Grove or any other site designated as a “Boll Weevil” project.

On May 14, 1999, the Department and LAFA filed a motion to continue the trial, asserting that legislation was then pending in the Legislature that would directly affect the issues in this case. The motion was granted and the trial was then set for July 12, 1999. Before the trial, the Legislature enacted what is now La. R.S. 3:266(21), which provides:

The authority (LAFA) shall have all the powers necessary to give effect to and carry out the purposes and provisions of this Chapter, including, in addition to all other powers granted by other provisions of this Chapter, the powers to:
| sNotwithstanding any other law, supervise and utilize public employees, equipment, and material in carrying out public work, including public work in furtherance of Formosan termite suppression. (Emphasis added.)

After the enactment of this legislation, the Department and LAFA argued to the trial court that, unequivocally, La. R.S. 3:266(21) allows LAFA to use its own public employees, equipment and materials in carrying out all the public work projects at issue, notwithstanding the requirements of the Contractors Licensing Law.

On April 10, 2002, the trial judge rendered judgment, granting a permanent injunction against the Licensing Board, prohibiting it from enforcing the cease and desist orders or from taking any action against the Department, LAFA and Mayo concerning the public works in Monroe, Winnsboro, Jonesville, Minden or Oak Grove that are ongoing or had been corn-pleted as of July 12, 1999. Further, the trial judge denied the Licensing Board’s request for a permanent injunction against the Department, LAFA and Mayo. Finally, the trial judge issued a declaratory judgment which stated:

1. The purpose of the Contractors Law, La. R.S. 37:2150, et seq., is to protect the general public from unscrupulous persons “engaging in the contracting vocation.” The Department and LAFA are not holding themselves out to the public to construct buildings for a fee.
2. The issuance of cease and desist orders by the Contractors Board against the Department and LAFA with respect to the projects located in Monroe, Winnsboro, Jonesville, Minden and Oak Grove do nothing to protect the health, safety, and general welfare of those persons dealing with persons engaged in the contracting vocation.
3. It is not the duty of the Contractors Board to regulate the deployment of state employees.
4. The Department and LAFA may construct the buildings under construction or already constructed by and owned by the Department and LAFA, located in Monroe, Winns-boro, |fiJonesville, Minden and Oak Grove with their own employees, material and equipment.
5. A contractor is not required by the Contractors Law to furnish labor, materials or equipment.
6. Any entity that furnishes labor, or that furnishes labor and material or equipment or that installs material or equipment is considered a subcontractor and is subject to the provisions of the Contractors Law. The Department and LAFA are exempt from the Contractors Law when the Department or LAFA provide labor, material or equipment, or install material and equipment, .for construction projects which are owned by the Department or LAFA and are not for sale, rent, public use or public assembly.
7. The buildings under construction or already constructed by and owned by the Department and LAFA, located in Monroe, Winnsboro, Jones-ville, Minden and Oak Grove are not for sale, rent, public use or public assembly and are not subject to the provisions of the Contractors Law.
8. Buildings which cost in excess of $100,000 may be undertaken by a public entity with its own employees under the provisions of La. R.S. 38:2212(B).
9. Everett Mayo violated no provisions of the Contractors Law.

The Department and LAFA assert that the trial court’s judgment does not resolve the issue of whether La. R.S. 3:266(21) allows LAFA to utilize its own public employees, equipment and material in carrying out all its own public work projects and not just the projects that are exempt from the Contractors Licensing Law under La. R.S. 37:2157(A)(2). According to the trial judge, all LAFA’s public work projects are exempt from the Contractors Licensing Law except one of the projects in Monroe, which will be used by the public. The Department and LAFA argue that La. R.S. 3:266(21) allows LAFA to use its own public employees, equipment and material in carrying out all its own public work projects at issue, including the site in IvMonroe. The Department and LAFA now appeal, raising the following assignment of error:

The trial court erred in failing to issue a declaratory judgment that, as to public works that are not otherwise exempt from the Contractors Licensing Law, La. R.S. 3:266(21) allows LAFA to utilize public employees, equipment, and material in carrying out public work, notwithstanding the provisions in the Contractors Licensing Law that generally prohibit public entities from utilizing public employees, equipment, and material to build buildings.

DISCUSSION

The Department and LAFA contend that the trial court did not resolve the issue of whether La. R.S. 3:266(21) applies to all the public work projects at issue in this case. They request that this court render the declaratory judgment that the trial court failed to render. The Department and LAFA argue that the express authority of La. R.S. 3:266(21), which sets forth that, “notwithstanding any other law [at issue here, the Contractors Licensing Law], [LAFA may] supervise and utilize public employees, equipment, and material in carrying out [its] public work,” gives LAFA the authority to use its own employees, equipment and material in carrying out its own public work projects. We agree, however, the issue of justiciability must first be addressed.

Although the issue of justiciability has not been raised on appeal, we must first consider this issue inasmuch as it is central to the granting of declaratory relief. Atchafalaya Basin Levee District v. Pecquet, 364 So.2d 610 (La.App. 1st Cir. 1978). The supreme court, in Abbott v. Parker, 259 La. 279, 249 So.2d 908 (1971), appeal dismissed, 404 U.S. 931, 92 S.Ct. 281, 30 L.Ed.2d 244 (1971), defined “justi-ciable controversy” as:

| s“[a]n actual and substantial dispute, as distinguished from one that is merely hypothetical or abstract, and a dispute which involves the legal relation of the parties who have real adverse interests, and upon which the judgment of the court may effectively operate through a decree of conclusive character. Further, the plaintiff should have a legally protectable and tangible interest at stake, and the dispute presented should be of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.”

A justiciable controversy is shown if there is a genuine controversy between a plaintiff and a defendant as to legal rights requiring a judicial determination. Midboe v. Commission on Ethics for Public Employees, 94-2270 (La.11/30/94), 646 So.2d 351. In the case sub judice, we find that a genuine controversy is presented and that there is an existing actual and substantial dispute. The dispute between LAFA and the Licensing Board is not one that is hypothetical or abstract. The parties have a real adverse interest that only a judicial decision will resolve. Since the Department and LAFA have a legally protected, immediate and tangible interest in resolving the question of whether La. R.S. 3:266(21) allows LAFA to use its own employees, equipment and materials in carrying out the public work projects at issue in the case sub judice, our proper resolution of this issue through declaratory judgment is needed to terminate this controversy.

A person is entitled to relief by declaratory judgment when his rights are uncertain or disputed in an immediate and genuine situation and the declaratory judgment will remove the uncertainty or terminate the dispute. In re P.V.W., 424 So.2d 1015 (La.1982). La. C.C.P. art. 1872 provides, in pertinent part:

A person ... whose rights, status, or other legal relations are affected by a statute, municipal ordinance, contract or franchise, may have determined any question of construction or validity | parising under the instrument, statute, ordinance, contract, or franchise and obtain a declaration of rights, status, or other legal relations thereunder.

A suit for declaratory judgment is an appropriate means of testing the constitutionality or applicability of an ordinance in which there is an actual controversy between the parties. Liberto v. Rapides Parish Police Jury, 95-456 (La.App. 3d Cir.11/2/95), 667 So.2d 552. Further, La. C.C.P. art. 1881 provides:

Articles 1871 through 1883 are declared to be remedial. Their purpose is to settle and afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations, and they are to be liberally construed and administered.

Appellate courts, as well as the trial court, are granted broad discretionary power to determine whether declaratory relief may be appropriate in a particular suit. Liberto, supra, citing Atchafalaya Basin Levee District, supra. La. C.C.P. art. 2164 provides, in pertinent part:

The appellate court shall render any judgment which is just, legal, and proper upon the record on appeal.

In Ricard v. State, 544 So.2d 1310 (La.App. 4th Cir.1989), the court examined the issue of whether it could rule on an issue on which the trial court failed to rule. In Ricard, supra, the issue involved the constitutionality of a statute and the propriety of an election. The court held that, although the trial court did not rule on the merits of the issue raised by the plaintiffs suit, the question presented is a question of law alone; and, therefore, having a complete record before the court and briefs that address the merits, it would decide the issue. In the case sub judice, declaratory relief is appropriate. We have a complete record before this court and the merits Lnhave been briefed and addressed; and, therefore, we will also decide the issue in question.

Indeed, the trial court ruling did not terminate the controversy in the instant case. The trial judge gave the Department and LAFA most of the relief they requested, but not all of the relief that should have been given. While the trial judge granted the Department and LAFA relief under the exemption in the Contractors Licensing Law, La. R.S. 37:2157(A)(2), he did not address whether La. R.S. 3:266(21) applied to LAFA’s public work project in Monroe, which will be open to the public and which is not exempt. We now hold that La. R.S. 3:266(21) applies to the public work project in Monroe and that LAFA can use its own employees, equipment and materials in carrying out this public work project. -We grant the Department and LAFA full declaratory relief under this statute.

La. R.S. 3:266(21) is clear and unambiguous and we find that it gives LAFA express authority to use its own employees, equipment and material in carrying out all its own public work projects and its ability to carry out public work projects is not limited to only the project exemption applied under the Contractors Licensing Law. Since we find that La. R.S. 3:266(21) applies to LAFA’s public work project in Monroe, we amend the trial court judgment to reflect that La. R.S. 3:266(21) applies to this project.

In addition, we find that La. R.S. 3:266(21) and the Contractors Licensing Law are two laws that can coexist. Rules of statutory construction provide that, where two statutes deal with the same subject matter, they should be harmonized if possible; but, that, if there is a conflict, that statute specifically directed to the matter at issue must prevail as an exception to the lustatute more general in character. Esteve v. Allstate Ins. Co., 351 So.2d 117 (La.1977); State v. Maduell, 326 So.2d 820 (La.1976); Teachers’ Retirement System of Louisiana v. Vial, 317 So.2d 179 (La.1975). We conclude that La. R.S. 3:266(21) is a statute specifically directed to the matter at issue and it is an exception to the Contractors Licensing Law found in La. R.S. 37:2150, et seq, which are statutes more general in character.

Finally, we note that LAFA and the Licensing Board have disputed for a number of years the issue as to whether LAFA can use its own public employees, equipment and materials in carrying out its own public work projects. We find the case of State Licensing Board for Contractors v. Louisiana State Department of Agriculture and Forestry, 588 So.2d 1268 (La.App. 1st Cir.1991), unit denied, 590 So.2d 598 (La.1992), which held that LAFA could not use its own employees, equipment and materials in carrying out its own public work projects, to be unpersuasive. This case was decided long before the adoption of La. R.S. 3:266(21), which makes it clear that LAFA now has express authority to use its own public employees in carrying out its own public work projects. The Department and LAFA, therefore, are entitled to the declaratory relief they requested and this judgment is hereby amended accordingly.

CONCLUSION

For the foregoing reasons, the judgment of the trial court granting partial relief to the Louisiana Department of Agriculture and Forestry and the Louisiana Agricultural Finance Authority is amended to apply hipa. R.S. 3:266(21) rather than La. R.S. 37:2157(A)(2) to the public work project in Monroe, and, therefore, to allow LAFA to use its own public employees, equipment and material in carrying out this public work project. As amended, the judgment of the trial court is affirmed. Costs of this appeal are assessed to Defendant, Louisiana State Licensing Board for Contractors.

AMENDED, AND, AS AMENDED, AFFIRMED.

      . La. R.S. 3V:2157(A)(2) provides:
      There are excepted from the provisions of this Chapter:
      Owners of property who supervise, superintend, oversee, direct, or in any manner assume charge of the construction, alteration, repair, improvement, movement, demolition, putting up, tearing down, or maintenance of any building, railroad excavation, project, development, improvement, plan facility, or any other construction undertaking, on such property, for use by such owner and which will not be for sale, rent, public use, or public assembly.

      . La. R.S. 3:266(14) provides:
      The authority (LAFA) shall have all the powers necessary to give effect to and carry out the purposes and provisions of this Chapter, including, in addition to all other powers granted by other provisions of this Chapter, the powers to:
      Acquire or contract to acquire from any person, firm, corporation, municipality, federal or state agency, by grant, purchase, or otherwise, movable or immovable property or any interest therein; own, hold, clear, improve, lease, construct, or rehabilitate, and sell, invest, assign, exchange, transfer, convey, lease, mortgage, or otherwise dispose of or encumber the same, subject to the rights of holders of the bonds of the Authority, at public or private sale, with or without public bidding.

      . Under La. R.S. 38:2211 (A)(l 1), public work is defined as:
      The erection, construction, alteration, improvement, or repair of any public facility or immovable property owned, used, or leased by a public entity.

      . La. R.S. 3:1605 provides:
      The commissioner (commissioner of the Department of Agriculture and Forestry), through the commission (Louisiana Boll Weevil Eradication Commission), is authorized to suppress or eradicate the boll weevil in the state. The commissioner is authorized to cooperate with any agency of the federal government, any state, any other agency in the state or in the region, or any person engaged in growing, processing, marketing, handling cotton, or any group of such persons in programs to effectuate the purposes of this Part and may enter into written agreements, including cooperative endeavor agreements, to effectuate such purposes. Such agreements may provide for cost sharing, and for division of duties and responsibilities under this Part and may include other provisions generally to effectuate the purposes of this Part.
      La. R.S. 3:1615(B)(2), in concurrence with La. R.S. 3:1605, provides:
      Subject to appropriation, the monies in the fund (Boll Weevil Eradication Fund) shall be used for the following purposes:
      To fund any and all costs related to the eradication of boll weevils, utilizing any or all powers granted to the Louisiana Agricultural Finance Authority (LAFA).

      .La. R.S. 37:2150 provides:
      The purpose of the legislature enacting this chapter is the protection of the health, safety, and general welfare of all those persons dealing with persons engaged in the contracting vocation, and the affording of such persons of an effective and practical protection against the incompetent, inexperienced, unlawful, and fraudulent acts of contractors with whom they contract. Further, the legislative intent is that the State Licensing Board for Contractors shall monitor construction projects to insure compliance with the licensure requirements of this chapter.

      . La. R.S. 37:2154(A)(4) provides:
      No application (application for contractors license) may be considered from any state or local governmental body, including, without limitation, any agency of any such state or local governmental body including any corporation or other entity owned, controlled by any such state or local governing body.

      . If a public work project will later be used by the public, the exemption found in La. R.S. 37:2157(A)(2) will not apply and LAFA will have to follow the Contractors Licensing Law by hiring a contractor in carrying out this project. In memorandum supplied to the trial judge, LAFA stipulated to the fact that this one facility in Monroe will be used by the public.