author: JjLEON A. CANNIZZARO, JR., Judge. | GORBATY, J.,

text:
    Frankie Faulkner PELLERIN v. Jerome Joseph PELLERIN.
    No. 2004-CA-0071.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 18, 2004.
    Rehearing Denied Sept. 9, 2004.

      Jerome J. Pellerin, New Orleans, LA, for Defendant/Appellant, Jerome Joseph Pellerin.
    James A. Gray, II, New Orleans, LA, for Plaintiff/appellee, Frankie Faulkner Pelle-rin.
    (Court composed of Judge MICHAEL E. KIRBY, Judge MAX N. TOBIAS, JR., Judge DAVID S. GORBATY, Judge LEON A. CANNIZZARO, JR., Judge ROLAND L. BELSOME).
   JjLEON A. CANNIZZARO, JR., Judge.

The appellant in this case, Jerome J. Pellerin, has appealed the trial court’s determination of the amount of monthly child support that he owes. We affirm the trial court’s determination.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

Frankie Faulkner Pellerin filed a petition seeking a divorce from Jerome J. Pellerin. The Pellerins are the parents of two minor sons. In her petition for divorce, Ms. Pellerin requested joint custody of the children, child support, alimony pendente lite, and use of the family residence. After the petition for divorce was filed, there were a number of developments in this case, including two prior appeals to this Court.

The following list shows the dates and events that are salient to the instant appeal:

August 8,1996

Ms. Pellerin filed a Petition for Divorce seeking a divorce from Mr. Pellerin.

Ii,October 28,1996:

Mr. and Ms. Pellerin executed a Consent Judgment, which stated as follows:

IT IS ORDERED, ADJUDGED AND DECREED that Jerome J. Pelle-rin shall pay one thousand ($1000.00) dollars monthly for the support of the two minor children of the marriage .... Jerome Pellerin shall pay the mortgage on the family home directly and deduct that from this amount from the agreed upon child support. The balance of the child support shall be sent directly to Frankie Pellerin....
... Jerome Pellerin shall be given credit for all child support payments made and all tuition paid for the 1996-97 school year.
IT IS FURTHER ORDERED, ADJUDGED and DECREED that this amount of child support is agreed to by both parties as an interim amount only and neither shall be prejudiced at the hearing for child support, should they be eligible for an increase or decrease.

The Consent Judgment also granted the Pellerins joint custody of their sons.

January 10,1997

Ms. Pellerin filed a rule to show cause why Mr. Pellerin should not be required to pay the December 1996 and the January 1997 mortgage payments according to the Consent Judgment.

March 21,1997

After a trial on Ms. Pellerin’s motion for child support and alimony pendente lite, the trial court rendered a judgment (the “Support Judgment”) reading in relevant part as follows:

IT IS ORDERED, ADJUDGED AND DECREED that Jerome Pellerin shall pay $1,879.35 per month in Child Support for the maintenance and support of the | ¡¡minor children. This order is retroactive to August 8, 1996 and is payable on the 1st day of every month.
IT IS ORDERED, ADJUDGED AND DECREED that Jerome Pellerin shall pay $2,000 per month in Alimony Pendente Lite. This order is retroactive to August 18[sic], 1996 and payable on the 1st day of every month.

March 26,1997

Ms. Pellerin filed a motion for an expedited hearing requesting the trial court to require Mr. Pellerin to show cause why, among other things, he should not be held in contempt of court for failing to comply with the Consent Judgment and why he should not be required to pay the mortgage payments due on the family residence through April of 1997.

May 16,1997

Mr. Pellerin was granted a devolutive appeal from the Support Judgment.

July 7,1997

A consent judgment was rendered ordering Mr. Pellerin to pay the mortgage payments due on the family residence for the months of February, March, and April of 1997.

August 4,1997

Ms. Pellerin filed a motion for an expedited hearing alleging that Mr. Pellerin had failed to pay the mortgage payment on the family residence for the months of July and August, 1997, and that he had made only a partial payment for the month of June 1997. Ms. Pellerin asked that Mr. Pellerin be ordered to pay “the mortgage on the family home and all late charges through August, 1997” or, in the alternative, that he pay “child support and alimony pendente lite ... retroactive to August 8, 1997.” Ms. Pellerin also asked that Mr. Pellerin be held in contempt of court for failing to pay child support in accordance with the terms of the Consent | ¿Judgment and the Support Judgment. She further asked that Mr. Pellerin be ordered to pay all unpaid child support payments as of the date of the hearing on her motion, interest on the delinquent payments, and the attorneys’ fees and court costs incurred in collecting the amounts due.

October 1,1997

A judgment was rendered finding Mr. Pellerin to be in contempt of court for failing to pay the child support and mortgage payments he owed. He was sentenced to sixty days in jail, but the sentence was suspended. Mr. Pellerin was given seven days to purge himself of contempt by “payment of all arreagages [sic] thru October 1,1997.”

December 3,1997

Ms. Pellerin filed a rule requesting an expedited hearing, because Mr. Pellerin had not paid the mortgage payments for November or December of 1997. Ms. Pellerin alleged that the family residence was in danger of foreclosure. Ms. Pellerin asked the trial court to order Mr. Pellerin to pay the unpaid mortgage payments and all late charges due through December 1997. She also asked that he pay all unpaid child ' support payments that were due, interest on those amounts, and the attorneys’ fees and court costs incurred by Ms. Pellerin in enforcing her rights.

December 19,1997

A judgment was rendered finding Mr. Pellerin to be in contempt of court. Mr. Pellerin was sentenced to thirty days in jail, but the sentence was suspended. Mr. Pellerin was given until December 22,1997 to purge himself of contempt by | s“payment of the mortgage.” Mr. Pellerin was also ordered to pay the attorneys’ fees and court costs incurred by Ms. Pellerin in connection with the contempt proceeding.

February 3,1998

Ms. Pellerin filed a rule requesting an expedited hearing, because Mr. Pellerin had not paid the January and February mortgage payments for 1998. Ms. Pellerin feared that the mortgage holder would foreclose on the mortgage on the family residence if the payments were not made. Additionally, Ms. Pellerin alleged that Mr. Pellerin had not yet paid the attorneys’ fees and court costs that had been awarded to her in the December 19, 1997 judgment. Ms. Pellerin asked the trial court to order Mr. Pellerin to show cause why, among other things, (1) he should not be held in contempt for failing to pay child support “in accordance with the terms of the October 28, 1996 Consent Judgment”; (2) he should not pay the mortgage on the family residence and all late charges “through December, 1997”; (3) he should not pay the attorneys fees and court costs that he had been ordered to pay previously; and (4) he should not be ordered to pay “all unpaid child support payments due and payable as of the date of the hearing of this matter.”

February 17,1998

A judgment was rendered finding Mr. Pellerin to be in contempt of court “for failure to timely pay the child support in compliance with the Consent Judgment of October 28, 1996.” Mr. Pellerin was sentenced to thirty days in jail, and he was required to post a cash bond in the amount of $3,000.00, which was to | fibe used to pay the January and February, 1998 mortgage payments on the family residence and the attorneys’ fees and costs owed to Ms. Pellerin.

February 26,1998

The trial court judge issued reasons for judgment in which he noted that “[sjince entering into that Interim Consent Judgment five Motions for Expedited Hearings and/or Rules to Show Cause have been filed against Mr. Pellerin for his failure to timely pay his child support by timely paying the mortgage on the community home.” The trial court also stated that Mr. Pellerin failed to make the payments that were ordered within the time limits prescribed by the court. Further, the trial judge stated that in one instance Mr. Pellerin did not make the payment that was ordered until after an attachment for his arrest was issued.

June 17,1998

In Pellerin v. Pellerin, 97-2085 (La.App. 4 Cir. 6/17/98), 715 So.2d 617, writ denied, 98-1940 (La.10/30/98), 727 So.2d 1167, this Court affirmed the child support award of $1,879.85 that had been granted in the Support Judgment but determined that the award was not retroactive to August 8, 1996, when the petition for divorce had been filed. Instead, the child support award was effective as of the date that the Support Judgment had been rendered. This Court reduced the amount of alimony pendente lite that had been granted in the Support Judgment but determined that this award was retroactive to the date that the petition for divorce was filed.

| June 26,1998

Ms. Pellerin filed a rule for an expedited hearing to show cause why Mr. Pellerin should not be held in contempt of court for failing to pay the June 1998 mortgage payment and child support in accordance with the Consent Judgment.

January 20,1999

Ms. Pellerin filed a rule (the “Enforcement Rule”) in which she sought to enforce the Support Judgment ordering Mr. Pelle-rin to pay $1,879.35 per month for child support, as that judgment was modified by the opinion of this Court. Ms. Pellerin alleged that the Support Judgment, as modified by this Court, superseded the Consent Judgment once the Louisiana Supreme Court denied Mr. Pellerin’s application for a writ of certiorari.

March 29,1999

Mr. Pellerin filed an exception of no cause of action and of no right of action in response to Ms. Pellerin’s January 20, 1999 rule. Although Mr. Pellerin styled his exception as an exception of no cause of action and no right of action, it was, in effect, really an exception of res judicata. Mr. Pellerin argued that during the pen-dency of the devolutive appeal of the Support Judgment, the trial court retained jurisdiction to enforce the Support Judgment. Mr. Pellerin further argued that Ms. Pellerin could have asked the trial court to require him to pay $1,879.00 in monthly child support payments during that time. Instead, she sought only to have the trial court order him to pay mortgage payments, which were approximately $1,000.00 per month. Therefore, Mr. Pellerin contended that the judgments | srendered against him that ordered him to pay only the mortgage payments sought by Ms. Pellerin were res judicata with respect to the issue of how much child support he owed during the time periods affected by those judgments.

November 6, 2000

The trial court rendered a judgment (the “Exception Judgment”) granting Mr. Pellerin’s exception of no cause of action and denying his exception of no right of action. In his reasons for judgment the trial court judge stated that “[i]t is this Court’s position that any cause for a determination of and payment of past due support for any period arising on or after March 21, 1997 up through and including August 19, 1998 is extinguished and merged into each of the final judgments rendered during that period.”

December 5, 2000

Ms. Pellerin was granted a devolutive appeal from the Exception Judgment.

April 17,2002

Ms. Pellerin filed a rule to collect past due child support and to change the method of payment of the child support payments so that Mr. Pellerin’s employers would make payments directly to Ms. Pellerin. In the rule Ms. Pellerin alleged that Mr. Pellerin had not timely paid his child support payments since the Exception Judgment was rendered, which was almost a year and a half earlier. Ms. Pellerin additionally alleged that the current monthly child support payment was $1,879.00, that the requirement that Mr. Pellerin pay this amount was not suspended during the appeal of the Support Judgment, which was affirmed by this Court on June 17, |91998, as to the amount of child support, and that she needed an increase in the monthly child support amount of $1,879.00 because of changes in circumstances.

May 15, 2002

This Court rendered its opinion (the “Appellate Opinion”) in connection with the appeal of the Exception Judgment. This Court reversed the trial court’s Exception Judgment, which, on the basis of the doctrine of res judicata, had dismissed the Enforcement Rule. The case was remanded by this Court to the trial court for a trial on the Enforcement Rule. Mr. Pellerin subsequently filed an application for rehearing on the appeal. August 23, 2002

Ms. Pellerin filed an emergency rule for contempt and for child support. She alleged that she was in immediate need of child support to care for her two children and that Mr. Pellerin had not paid the child support in the amount of $1,879.00 that was owed for each of the months of July and August of 2002.

September 30,2002

Ms. Pellerin filed an expedited rule for contempt and child support, alleging that Mr. Pellerin had not paid child support for the month of September 2002. Ms. Pelle-rin alleged that Mr. Pellerin was in arrears in the payment of child support in the total amount of $58,267.33.

October 23, 2002

This Court granted Mr. Pellerin’s application for a rehearing of the Appellate Opinion, withdrew that opinion, and issued a new opinion (the “Rehearing Opinion”) in lieu of the Appellate Opinion. Pellerin v. Pellerin, 2001-1877 (La.App. 4 Cir. 10/23/02), 832 So.2d at 993. The Rehearing Opinion affirmed the Exception Judgment. This Court found that although Ms. Pellerin did not explicitly agree to a change in the amount of child support, she nevertheless accepted a change in the amount of child support when she sought compliance with the Consent Judgment rather than the Support Judgment. Therefore, this Court held that Ms. Pelle-rin’s continued acceptance of less child support than she was entitled to receive was a “tacit agreement to a modification” of the Support Judgment. 2001-1877, p. 10, 882 So.2d at 993. This Court concluded that any request for arrearages after the date the Enforcement Rule was filed on January 20, 1999, must be directed to the trial court.

February 7, 2003

The Louisiana Supreme Court issued its finding that Ms. Pellerin’s application for a writ of certiorari was not timely filed and, therefore, was not considered.

July 11, 2003

The trial court rendered a judgment (the “Instant Judgment”) holding that pri- or to January 20, 1999, the date the Enforcement Rule was filed, all child support due and owing was extinguished by Mr. Pellerin’s satisfaction of the contempt judgments against him. The trial court also held that beginning January 20, 1999, the amount of child support owed by Mr. Pellerin was $1,879.00 per month. Additionally, the trial court ordered that child support arrearage owed by Mr. Pellerin for the time period beginning January 20, 1999, and ending June 30, 2003, was $41,132.27. The payment of that amount was made executory upon all Inappeals from the Instant Judgment becoming final. In calculating the amount of the arrearage, Mr. Pellerin was given credit for the tuition that he paid for the children’s schooling after January 20,1999. He was denied credit for any sums paid for tuition prior to that date. Finally, the trial court held that if the Instant Judgment is reversed on appeal and Mr. Pellerin is found to be obligated for only $1,000.00 per month in child support, he will be entitled to a credit in the amount of $6,232.73 for amounts he has already paid. The trial court judge rendered the Instant Judgment based on her interpretation of the Rehearing Opinion.

DISCUSSION

Assignments of Error

Assignment of Error No. 1: Ms. Pellerin had no cause of action to seek support in the amount of $1,879.00 per month, and the trial court’s judgment was contrary to the provisions of La. C.C.P. arts. 1951 and 3946.

La. C.C.P. art. 1951 reads as follows:

A final judgment may be amended by the trial court at any time, with or without notice, on its own motion or on motion any party:
(1) To alter the phraseology of the judgment, but not the substance; or
(2) To correct errors of calculation.
La. C.C.P. art. 3946 reads as follows:
A. When a payment of support under a judgment is in arrears, the party entitled thereto may proceed by contradictory motion to have the amount of past due support determined and made executory. On the trial of the contradictory motion, the court shall render judgment for the amount of past due support.

B. The same rules and procedures apply when an installment payment of an award for contributions made to a spouse’s education or training is in arrears.

Mr. Pellerin argues that under the Code of Civil Procedure articles he has cited, the child support amount cannot be modified by the Instant Judgment. His 1 -^rationale for this argument is that the Exception Judgment stated that his child support obligation “remains at $1,000 per month unless and/or until otherwise modified,” We note, however, that this statement regarding the amount of child support was made in the trial court’s reasons for judgment, not in the Exception Judgment. In Greater New Orleans Expressway Commission v. Olivier, 2002-2795, p. 3 (La.11/18/03), 860 So.2d 22, 24, the Louisiana Supreme Court stated that “[a] judgment and reasons for judgment are two separate and distinct documents.” The Supreme Court further said that “[a]p-peals are taken from the judgment, not the written reasons for judgment.” Id.

We also note that in the Rehearing Opinion, this Court stated that “we do not believe that the trial court may make this broad a ruling [the modification of the Support Judgment to reduce the monthly child support payments to $1,000] by merely granting an exception of no cause of action.” 2001-1877, p. 8, 832 So.2d at 993. This Court then said that “if we determine that the trial court correctly concluded that the March 1997 judgment [the Support Judgment] had been modified, the modification would only be effective until January 1999.” Id.

In the instant case, the Exception Judgment was the judgment that was appealed. The holding of the Exception Judgment that was affirmed in the Rehearing Opinion was the trial court’s decision “that the Exception of No Cause of Action filed by Jerome Joseph Pellerin is hereby granted.” The exception of no cause of action was based on the argument that Ms. Pelle-rin was precluded from retroactively enforcing the Support Judgment, because the prior adjudications of child support were res judicata as to the amount of child support owed for the time [ ^periods covered by those judgments. Mr. Pellerin argues that because Ms. Pellerin accepted less than she was entitled to receive, she is now precluded from claiming that she is owed additional amounts. The amount of the child support obligation was not addressed in the Exception Judgment, only in the trial court’s reasons for judgment. Therefore, we find that Mr. Pellerin’s first assignment of error is without merit.

Assignment of Error No. 2: From January 1999 through the date of the hearing, Ms. Pellerin is collaterally estopped from seeking child support arrearages allegedly accrued under the March '97 judgment at the rate of $1,879 per month.

Mr. Pellerin argues that because the trial court stated in the reasons for judgment issued in connection with the Exception Judgment that the child support owed by Mr. Pellerin “remains at $1,000 per month unless and/or until otherwise modified,” Ms. Pellerin is precluded from seeking child support in excess of $1,000 per month until the statement in the Reasons for Judgment is modified. Again we find that the Exception Judgment does not address the amount of child support. Because the Exception Judgment, not the reasons for judgment, was appealed, we find Mr. Pellerin’s second assignment of error to be without merit.

We also note that Mr. Pellerin alternatively argues that Ms. Pellerin’s acceptance of mortgage payments “is tacit acceptance to a further modification; and that as [sic] result, Faulkner [Ms. Pellerin] is collaterally estopped from seeking any support at the rate of $1,879.00 per month.” We strongly disagree with this assertion.

It is clear from the record that Ms. Pellerin accepted the mortgage payments, not because she tacitly agreed to a reduction in the amount of child support owed Into her under the Support Judgment, but because she feared foreclosure of the mortgage on the family home and the resultant loss of that home as a place for her and the children to live. We find that she asked the trial court to order Mr. Pellerin to pay the mortgage payments, because she was doing what was necessary at the time to avoid triggering an imminent foreclosure of the mortgage on the family home. The child support payments owed by Mr. Pellerin were for the benefit of his children, and his wife clearly did not intend to tacitly reduce those payments to the detriment of her children just because she was forced to resolve a crisis that could have led to the loss of the family home though a foreclosure proceeding. This assignment is without merit.

Assignment of Error No. 3: To the extent relief could be granted at a hearing pursuant to La. C.C.P. art. 3946, the trial court was without authority to grant relief to any date prior to July 11, 2003.

La. C.C.P. art. 3946 provides in relevant part as follows:

A. When a payment of support under a judgment is in arrears, the party entitled thereto may proceed by contradictory motion to have the amount of past due support determined and made executory. On the trial of the contradictory motion, the court shall render judgment for the amount of past due support.

Mr. Pellerin argues that “[d]uring the appellate process, Judge Medley’s grant of a modification to Pellerin’s support obligation created a right in favor of the successful trial court litigant that remained irrevocable and unmodifiable.” Once again Mr. Pellerin is basing his argument upon a statement made in the reasons for judgment issued in connection with the Exception Judgment, not upon the Exception Judgment itself.

|1fiHe also argues that because Ms. Pelle-rin requested an increase in the amount of monthly child support in the pleading she filed on April 17, 2002, she acknowledged that she had tacitly accepted a reduction in the child support payments. This is not correct, however. In her pleading that was filed on April 17, 2002, she stated that “[t]he current obligation is $1, 879.00 per month.” She then alleged that because, among other things, her income had decreased and the children’s expenses had increased, the monthly amount of child support should be increased. Ms. Pellerin in no way acknowledged that she had tacitly agreed to a reduction in child support. She clearly was seeking an increase from the $1,879.00 amount she alleged was then in effect.

Mr. Pellerin has failed to support his arguments. Therefore, we find that his third assignment of error is without merit.

Assignment of Error No. 4: To the extent any relief could be granted, the trial court was without authority to grant any relief to a date earlier than the date this Court’s judgment became final.

Mr. Pellerin’s argument in this assignment of error is based upon his contention that the Exception Judgment modified his monthly child support obligation to $1,000.00. As discussed above, this contention is incorrect. Therefore, this assignment of error is without merit.

Analysis of the Case

We are of the opinion that the Appellate Opinion was correct in determining that the judgments pursuant to which Mr. Pellerin was allowed to purge himself of contempt by paying the mortgage payments were insufficient to support the application of the doctrine of res judicata to preclude Ms. Pellerin from enforcing 11fithe Support Judgment’s full child support award. A judgment of contempt is not necessarily res judicata as to anything other the contempt adjudication.

La. R.S. 13:4232 reads in relevant parts as follows:

B. In an action for divorce under Civil Code Article 102 or 103, in an action for determination of incidental matters under Civil Code Article 105, in an action for contributions to a spouse’s education or training under Civil Code Article 121, and in an action for partition of community property and settlement of claims between spouses under R.S. 9:2801, the judgment has the effect of res judicata only as to causes of action actually adjudicated.

(Emphasis added.) Louisiana Civil Code article 105 provides that in and after a divorce proceeding, either spouse may request, among other things, a determination regarding custody, visitation, or child support.

The relevant issues “actually adjudicated” in the contempt judgments were that Mr. Pellerin was in contempt of court and that he could purge himself of that contempt by paying the delinquent mortgage payments that Ms. Pellerin was seeking to have paid. We find nothing in the record to evidence that Ms. Pellerin waived any rights to the full amount of child support awarded to her. In fact, as stated by Judge Tobias in his partial dissent from the Rehearing Opinion, “the record on appeal affirmatively indicates that Ms. Pelle-rin’s primary interest at the hearing of the rules was the payment of the mortgage on the family home so that she and the children of the marriage would [sic] be evicted from the family home in a foreclosure proceeding.” 2001-1877, p. 2 (concurrence in part and dissent in part), 832 So.2d at 994.

|17We are bound, however, by the Rehearing Opinion. Therefore, we are constrained to hold that all child support obligations that may have been owed prior to the filing of the Enforcement Rule have been extinguished.

We find that the Support Judgment awarding child support in the monthly amount of $1,879.00 was in full force and effect on the date of the filing of the Enforcement Rule on January 20, 1999. We, therefore, agree with the trial court’s determination that Mr. Pellerin owes Ms. Pellerin child support in the monthly amount of $1, 879.00 from January 20, 1999 until the child support obligation contained in the Support Judgment is expressly and properly modified.

CONCLUSION

We find that the trial court correctly determined the amount of child support owed by Mr. Pellerin to Ms. Pellerin. The judgment of the trial court is hereby affirmed.

AFFIRMED.

GORBATY, J., dissents with reasons.

BELSOME, J., dissents with reasons assigned by Judge GORBATY.

| GORBATY, J.,

Dissents with Reasons.

I respectfully dissent. In affirming Judge Medley’s judgment, this court held that the March 1997 judgment was modified to $1,000.00 per month not by operation of law, but by Ms. Pellerin’s continued acceptance of the monthly mortgage payments. This court affirmed the dismissal of Frankie Faulkner Pellerin’s First Rule seeking arrearages through November 1999 allegedly accrued under the March 1997 judgment at $1,879.00 per month. The force and effect of this court judgment affirms that Frankie Pellerin has/ had no cause of action to seek arrearages at the rate of $1,879.00 per month after January 20, 1999. As such, the trial judge erred in denying Pellerin’s Exceptions of No Cause of Action and Res Judicata. Accordingly, for these reasons, I would reverse the judgment of the trial court.

      . Pellerin v. Pellerin, 2001-1877 (La.App. 4 Cir. 10/23/02), 832 So.2d 988, writ untimely and not considered, 2002-2903 (La.2/7/03), 836 So.2d 83; Pellerin v. Pellerin, 97-2085 (La.App. 4 Cir. 6/17/98), 715 So.2d 617, writ denied, 98-1940 (La. 10/30/98), 727 So.2d 1167.

      . The record does not reflect whether or not the mortgage payments were voluntarily paid, but there is nothing in the record before us to indicate that Mr. Pellerin was subsequently ordered by the trial court to make these payments.

      . The Consent Judgment only established an “interim amount” of child support. Ms. Pellerin filed this motion to establish the amount of ongoing child support.

      . The judgment was not signed until December 22, 1997, three days after it was rendered.

      . The Judgment was rendered on February 17, 1998, but it was not signed until February 26, 1998.

      . A judgment of divorce was granted on August 15, 1997. Alimony pendente lite, alimony owed during the pendency of a divorce action, was terminated by a final judgment of divorce. Wascom v. Wascom, 96-0125 (La.1997), 691 So.2d 678. The law regarding alimony pendente lite has changed, however. La. C.C. art. Ill, which became effective January 1, 1998, provides for interim spousal support, and the interim allowance may remain in effect after the divorce judgment is final.

      . Although the record reflects that the Enforcement Rule was filed on January 7, 1999, various documents in this proceeding, including the opinions of this Court, state that it was filed on January 20, 1999. To avoid confusion the filing date in this opinion will also be referred to as January 20, 1999.

      . We cannot determine from the record that is before us the reason that the trial court judge designated the August 19, 1998 date.

      . The application for rehearing is not included in the record that is before us.

      . The record sometimes refers to the child support amount as $1,897.00, but the amount should, in fact, be $1,879.00.

      . The Enforcement Rule was filed in Janu-aiy of 1999.

      . July 11, 2003 was the date of the Instant Judgment, which is the judgment now being appealed.

      . This refers to the Rehearing Opinion, the date of which is October 23, 2002.


source: Caselaw Access Project

author: JjMICHAEL E. KIRBY, Judge. 11 ARMSTRONG, C.J.,

license: Public Domain

text:
    FORUM FOR EQUALITY PAC, A Registered Louisiana Political Action Committee, Laurence E. Best, Jeanne M. Leblanc and William A. Schultz v. CITY OF NEW ORLEANS and The Honorable W. Fox McKeithen, in his Official Capacity as Secretary of State of Louisiana only, and not Individually.
    No. 2004-CA-1521.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 30, 2004.

      John D. Rawls and Regina 0. Matthews, Martzell & Bickford and Kenneth Randall Evans, Evans & Clesi, PLC, New Orleans, LA for Plaintiffs/Appellees.
    J. Michael Johnson, Shreveport, LA, for Intervenors, Heulette “Clo” Fontenot, State Senator, John J. Hainkel, Jr., State Senator, A.G. Crowe, State Representative, Steve J. Scalise, State Representative, Louisiana Family Forum, Louisiana Family Forum Action, and American Family Association of New Orleans.
    Charles C. Foti, Jr., Attorney General of Louisiana, Angie R. LaPlace, Assistant Attorney General of Louisiana, Roy A. Mon-grue, Jr., Assistant Attorney General, Thomas S. Halligan, Assistant Attorney General, Baton Rouge, LA, for Defen-dani/Appellant, W. Fox McKeithen, in His Official Capacity as Secretary of State of Louisiana.
    Thomas A. Robichaux, Assistant City Attorney, Deborah M. Henson, Assistant City Attorney, Ed Washington, Deputy City Attorney, Evelyn F. Pugh, Chief Deputy City Attorney, Sherry S. Landry,' City Attorney, New Orleans, LA, for The City of New Orleans.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge MICHAEL E. KIRBY, Judge MAX N. TOBIAS JR., Judge LEON A. CANNIZZARO JR., Judge ROLAND L. BELSOME).
   JjMICHAEL E. KIRBY, Judge.

The Honorable W. Fox McKeithen (“McKeithen”), Louisiana’s Secretary of State, appeals a judgment of the Civil District Court for the Parish of Orleans, granting a writ of permanent injunction enjoining him from placing on the September 18, 2004 election ballot a proposed constitutional amendment, Act 926 of the 2004 Regular Session of the Louisiana Legislature (hereinafter, “Act 926”). Act 926, a joint resolution of the legislature, reads in its entirety as follows:

A JOINT RESOLUTION
Proposing an amendment to the Constitution of Louisiana, to enact Article XII, Section 15, relative to marriage; to require that marriage in the state shall consist only of the union of one man and one woman; to provide that the legal incidents of marriage shall be conferred only upon such union; to prohibit the validation or recognition of the legal status of any union of unmarried individuals; to prohibit the recognition of a marriage contracted in another jurisdiction which is not the union of one man and one woman; to provide for submission of the proposed amendment to the electors and provide a ballot proposition; and to provide for related matters.
Section 1. Be it resolved by the Legislature of Louisiana, two-thirds of the members elected to each house concurring, that there shall be submitted to the electors of the state of Louisiana, for their approval or rejection in the manner provided by law, a proposal to add Article XII, Section 15 of the Constitution of Louisiana, to read as follows:
!;>§ 15. Defense of Marriage
Section 15. Marriage in the state of Louisiana shall consist only of the union of one man and one woman. No official or court of the state of Louisiana shall construe this constitution or any state law to require that marriage or the legal incidents thereof be conferred upon any member of a union other than the union of one man and one woman. A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized. No official or court of the state of Louisiana shall recognize any marriage contracted in any other jurisdiction which is not the union of one man and one woman.
Section 2. Be it further resolved that this proposed amendment shall be submitted to the electors of the state of Louisiana at the statewide election to be held on September 18, 2004.
Section 3. Be it further resolved that on the official ballot to be used at said election there shall be printed a proposition, upon which the electors of the state shall be permitted to vote FOR or AGAINST, to amend the Constitution of Louisiana, which proposition shall read as follows:
To provide that marriage in this state shall consist of the union of one man and one woman, that legal incidents of marriage shall not be conferred on a member of any union other than such union, and that the state shall not validate or recognize a legal status identical or substantially similar to that of marriage for unmarried individuals or any marriage contracted in any other jurisdiction which is not the union of one man and one woman.
(Adds Article XII, Section 15)

On August 6, 2004, Forum for Equality PAC, a registered Louisiana political action committee, Lawrence E. Best, Jeanne M. LeBlanc, and William A. Schultz (hereinafter collectively, the “plaintiffs”) filed suit for declaratory and injunctive relief against the City of New Orleans, McKeithen, and the Attorney General of Louisiana, asserting Act 926 could not constitutionally be placed on the September 18, 2004 ballot because it would violate La. Const, arts. I, §§ 1, 3, 4, 22, Land 23, and XIII, § l. Insofar as the alleged violations of article I, the plaintiffs asserted that the proposed amendment denies them the equal protection of the law; denies a person the right to acquire, own, control, use, enjoy, protect and dispose of private property; impairs the obligations of contracts; denies an adequate remedy through due process of law; and deprives inalienable rights. Relating to article XIII, the plaintiffs assert the proposed amendment violates the Louisiana constitutional prohibition against a proposed amendment addressing more than one object and, further, that the pre-filed proposed amendment was so different from that set forth in the joint resolution that was finally adopted that, effectively, the proposed amendment was not properly prefiled.

By order of August 10, 2004, the trial court set a hearing on the application for preliminary injunction for August 13, 2004 upon “verified pleadings and/or supporting affidavits.” See La. C.C.P. art. 3609. Also on August 10, 2004, McKeithen filed peremptory exceptions of no right of action and no cause of action, asserting that the plaintiffs had no real and actual interest in the proposed amendment and that Louisiana law offered the plaintiffs no remedy to prevent the electors from voting on a proposed amendment or from nullifying the date that the legislature set for a referendum.

Following the trial of the preliminary injunction, the trial court granted the preliminary injunction, holding that September 18, 2004 was not a “statewide election” date as that term is used in La. Const, art. XIII, § 1. Further, the trial | ¿court noted that Graham v. Jones, 198 La. 507, 3 So.2d 761 (1941), permits courts to review whether a proposed constitutional amendment is properly presented to the electors for adoption. From the judgment, McKeithen appealed. This court dismissed the appeal because the trial court had granted a permanent injunction while the appeal of the preliminary injunction was pending before us; the permanent injunction enjoined McKeithen from placing the proposed constitutional amendment on the ballot, finding September 18, 2004 was not a “statewide” election date under La. Const. Art. XIII, § 1 and finding the proposed amendment was not confined to a single object as required by La. Const, art. XIII, § 1.

On August 23, 2004 and prior to this court hearing oral arguments in Forum for Equality PAC v. City of New Orleans, 2004-1473 (La.App. 4 Cir. 2/24/04), — So.2d - [emphasis added], McKeithen obtained an order from the trial court suspensively appealing the trial court’s judgment granting the permanent injunction.

MOTION TO TRANSFER

The plaintiffs have filed a motion to transfer this present appeal to the Supreme Court of Louisiana, asserting that jurisdiction for this appeal properly is with that court. We disagree.

In this same case, on August 17, 2004, the Supreme Court of Louisiana in Forum for Equality PAC v. City of New Orleans, 2004-2104 (La.8/17/04), 882 So.2d 543, 2004 WL 1837924 transferred the appeal of McKeithen, in his capacity as Louisiana’s Secretary of State, to this court for consideration of the trial court’s judgment preliminarily enjoining the state from placing a proposed constitutional j Bamendment on the ballot for September 18, 2004. The Supreme Court determined that it did not have appellate jurisdiction of the matter pursuant to La. Const, art. V, § 5(D) because no law or ordinance had been declared unconstitutional; this court has appellate jurisdiction of the matter by virtue of La. Const, art. V, § 10(A). This court affirmatively agreed with that holding in this same case in Forum for Equality PAC v. City of New Orleans, 2004-1473 (La.App. 4 Cir. 2/24/04), — So.2d -, [emphasis added].

Accordingly, we deny the motion to transfer.

DISCUSSION

In this appeal, McKeithen assigns as error that the trial court erred (1) in overruling his peremptory exception of no right of action and (2) no cause of action; (3) in finding Act 926 was unconstitutional for not confining itself to a single object; (4) in finding that September 18, 2004 was not a statewide election for purposes of submitting a proposed constitutional amendment to the electors in violation of the Louisiana Constitution; (5) in granting a permanent injunction preventing him from placing Act 926 on the September 18, 2004 ballot; and (6) in admitting expert testimony of individuals asserted to be experts in Louisiana law.

| (APPELLANT’S ASSIGNMENTS OF ERROR 1 AND 2

We find that the plaintiffs have a right of action and the trial court was correct in overruling McKeithen’s exception.

An action can only be brought by a person having a real and actual interest which he asserts. La. C.C.P. art. 681. The exception of no right of action is designed to test whether the plaintiff has a real and actual interest in the action. La. C.C.P. art. 927(5). The function of the exception of no right of action is to determine whether the plaintiff belongs to the class of persons to whom the law grants the cause of action asserted in the suit. Babineaux v. Pernie-Bailey Drilling Co., 261 La. 1080, 262 So.2d 328 (1972). The exception of no right of action assumes that the petition states a valid cause of action and questions whether the plaintiff in the particular case has a legal interest in the subject matter of the litigation. Louisiana Paddlewheels v. Louisiana Riverboat Gaming Commission, 94-2016 (La.11/30/94), 646 So.2d 885.

In Foltmer v. James, 2001-1510, p. 3 (La.App. 4 Cir. 9/12/01), 799 So.2d 545, 547, we stated:

In Babineaux v. Pemie-Bailey Drilling Co., 261 La. 1080, 262 So.2d 328 (La.1972), the Louisiana Supreme Court listed two possible questions that can be raised by an exception of no right of action: (1) “whether the plaintiff belongs to the particular class in whose exclusive favor the law extends the remedy,” or (2) “whether plaintiff has the right to invoke a remedy which the law extends only conditionally.” Id. at 1096, 262 So.2d 328, 262 So.2d at 333.

The individual plaintiffs are electors of Louisiana and have an interest in the proposed constitutional amendment. They have a right of action. Similarly, Forum for Equality PAC, a registered political action committee, has an interest in the proposed constitutional amendment. They also have a right of action.

17Accordingly, the trial court did not err in overruling the exception of no right of action.

Similarly we find that the plaintiffs have a cause of action. Although La. R.S. 18:1405 C favors the attack upon a proposed constitutional amendment to be instituted after the promulgation of the election results by the secretary of state, we note infra jurisprudence that holds that a plaintiff might attack a proposed constitutional amendment that is unquestionably unconstitutional.

In this case, it is premature to consider whether the substance of proposed Article XII, § 15 is unconstitutional because it is not yet the law of Louisiana. Questions may exist as to the constitutionality of the substantive provisions of the proposed amendment, but those issues are deferred until such time as the electors adopt the amendment. Nevertheless, because in theory the plaintiffs have questioned the validity of the procedure by which the joint resolution was adopted by the legislature and the attack on whether September 18, 2004 is an appropriate date for a statewide election for a proposed constitutional amendment, we find that the trial court’s determination that the plaintiffs state a cause of action is not erroneous.

We therefore conclude that this assignment of error is without merit.

APPELLANT’S ASSIGNMENT OF ERRORS

Whether proposed new article XII, § 15 confines itself to a single object is a question of law. In Miller v. Greater Baton Rouge Port Commission, 225 La. 1095, 74 So.2d 387 (1954), the Louisiana Supreme Court established that germaneness is the test as to whether there is a single object with multiple parts. | «Our review establishes that the substantive parts of proposed article XII, § 15 are arguably germane to one another sufficiently so that in advance of adoption of the amendment by the electors the matter can be placed upon the ballot. In light of La. R.S. 18:1405 C, we find that the merits of the issue may only be attacked when and if the electors adopt the proposed amendment. A decision by a court any earlier than that would be merely advisory and is best decided after ample time to conduct appropriate discovery, not in the expedited process of an election contest conducted before the election is held.

We conclude that the trial court erred as a matter of law in addressing the issue prior to the adoption of the amendment.

APPELLANT’S ASSIGNMENT OF ERROR 4

La. Const, art. XIII, § 1 states:

§ 1. Amendments
(A) Procedure. An amendment to this constitution may be proposed by joint resolution at any regular session of the legislature, but the resolution shall be prefiled, at least ten days before the beginning of the session, in accordance with the rules of the house in which introduced. An amendment to this constitution may be proposed at any extraordinary session of the legislature if it is within the objects of the call of the session and is introduced in the first five calendar days thereof. If two-thirds of the elected members of each house concur in the resolution, pursuant to all of the procedures and formalities required for passage of a bill except submission to the governor, the secretary of state shall have the proposed amendment published once in the official journal of each parish within not less than thirty nor more than sixty days preceding the election at which the proposed amendment is to be submitted to the electors. Each joint resolution shall specify the statewide election at tuhich the proposed amendment shall be submitted. Special elections for submitting proposed amendments may be authorized by law.
lfl(B) Form of Proposal. A proposed amendment shall have a title containing a brief summary of the changes proposed; shall be confined to one object; and shall set forth the entire article, or the sections or other subdivisions thereof, as proposed to be revised or only the article, sections, or other subdivisions proposed to be added. However, the legislature may propose, as one amendment, a revision of an entire article of this constitution which may contain multiple objects or changes. A section or other subdivision may be repealed by reference. When more than one amendment is submitted at the same election, each shall be submitted so as to enable the electors to vote on them separately.

This provision specifically requires that an amendment shall be presented at a statewide election. We understand the word “statewide” in this section of the constitution to apply to both general and primary election dates. The word “statewide” is merely intended to direct that all electors must be able to vote on the proposed amendment at the same time and not intended to limit the presentation of the amendment to the electors to the times when other election issues are on the election ballot. This is reinforced by the last sentence in La. Const, art. Ill, § 1A, which authorizes the legislature to call special elections to vote on proposed constitutional changes. September 18, 2004, putting aside that it is not a “general” election day as distinguished from a statewide “primary” election date as defined in the Election Code and modified by federal jurisprudence, is a valid date for holding a vote on a proposed constitutional amendment. See Love v. Foster, 147 F.3d 383, 387 (5th Cir.1998).

La. R.S. 18:402 provides, in pertinent part:

§ 402. Dates of primary and general elections
* * *
B. Congressional elections. Elections for members of Congress and officers elected at the same | intime as members of Congress shall be held every two years, beginning in 1982.
(1) Congressional primary elections shall be held on the first Saturday in October of an election year.
(2) Congressional general elections shall be held on the first Tuesday after the first Monday in November of an election year.
F. Bond, tax, or other elections. Every bond, tax, or other election at which a proposition or question is to be submitted to the voters shall be held only on one of the following dates:
(1) The second to last Saturday in October or the fourth Saturday after the second to last Saturday in October of 1983 and every fourth year thereafter.
(2) The first Saturday in October or the first Tuesday after the first Monday in November of even-numbered years.
* * *
G. Prohibited days. No election of any kind shall be held in this state on any of the days ofRosh Hashanah, Yom Kippur, Sukkoth, Shimini Atzereth, Simchas Torah, the first two days and the last two days of Passover, Shavuoth, Fast of AV, or the three days preceding Easter. If the date of any election falls on any of the above named days, the election shall be held on the same weekday of the preceding week.
[Emphasis added.]

Subparagraph F of La. R.S. 18:402 is applicable to constitutional amendments because no other provision of law addresses the timing of the presentation of proposed constitutional amendments and the dates that proposed amendments may be submitted to the voters.

Ordinarily, by virtue of La. R.S. 18:402 F(2), in the year 2004 the election should be held on Saturday, October 2, 2004. However, because one of the days of | ¶1 Sukkoth falls on October 2, 2004, by virtue of La. R.S. 18:402 G, the election would have been held on the same day of the preceding week, i.e., on Saturday, September 25, 2004. However, September 25, 2004 is Yom Kippur. Again, by virtue of La. R.S. 18:402 G, the election must be held on the same day of the preceding week, i.e., on Saturday, September 18, 2004.

That several voting precincts in Louisiana may have nothing other than the proposed amendment on the ballot is of no moment because the electors in those parishes are being afforded an opportunity to express their preference on the proposed amendment on the same day as all other electors in Louisiana.

We conclude from the foregoing that the Louisiana Legislature by adopting Act 926 did not violate either the laws or constitution of Louisiana when it set the election for the proposed amendment on September 18, 2004. The trial court erred in granting the injunction on this ground.

Accordingly, we find McKeithen’s assignment of error has merit.

APPELLANT’S ASSIGNMENT OF ERRORS

We first note that an injunction only should issue “where irreparable injury loss, or damage may otherwise result....” La. C.C.P. art. 3601. In the case at bar, because the proposed constitutional amendment has no force of law (save placing the proposal before the electors, tabulating the election ballots, and promulgating the election results), the record before us fails to disclose grounds for issuance of an injunction at this time.

^J^Our jurisprudence holds that the validity or constitutionality of a proposed constitutional amendment will not be determined or passed upon by a court until the constitutional amendment is adopted. State ex rel. Bussie v. Fant, 216 La. 58, 43 So.2d 217 (1949); Johnson v. Carter, 2000-0029, p. 3 (La.App. 4 Cir. 6/28/00), 767 So.2d 790, 791. Only where a proposed constitutional amendment is unquestionably invalid on its face should a court refuse to permit the matter to be submitted to the voters. Johnson, id.; Javers v. Council of City of New Orleans, 351 So.2d 247 (La.App. 4th Cir.1977).

Further, La. R.S. 18:1405, in pertinent part, states:

C. An action contesting an election on a proposed constitutional amendment shall be instituted within ten days after promulgation of the results of the election by the secretary of state.

We find that this law and the above jurisprudence preclude a person from contesting the presentation to the electors of a proposed constitutional amendment until after the electors have voted upon the proposal unless the proposed amendment is clearly and unquestionably unconstitutional. We note that the plaintiffs have specifically pled that they do not assert the unconstitutionality of the proposed amendment under federal law, but only claim unconstitutionality under state law. We further note that the amendment’s language will only have substantive effect if the electors approve it at an election. Thus, if the electors reject the amendment, the issues presently before us and the constitutionality of the new article XII, § 15 become moot.

1 ^APPELLANT’S ASSIGNMENT OF ERROR 6

We pretermit a discussion of this assignment in view of our ruling on assignments three, four and five.

The plaintiffs have answered the appeal of McKeithen assigning two errors: First, they claim that Act 926 is unconstitutional because it alienates and violates rights set forth in La. Const, art. I, § 1, and second, they claim that the trial court erred in failing to declare the proposed amendment unconstitutional for violating the prefiling requirements of Article XIII, § 1.

We again note that the plaintiffs have specifically pled that they do not want this ease decided upon federal constitutional grounds. Thus, our consideration of this case does not in any way address federal constitutional rights.

APPELLEES’ ASSIGNMENT OF ERROR 1

In substance, the plaintiffs’ first assignment of error argues that their rights that the proposed amendment intends to infringe upon cannot be altered, except possibly by a constitutional convention. They cite no legal authority for this proposition, but merely refer to statements by delegates to the constitutional convention discussing the then proposed La. Const. Art. I § 1. Essentially they claim that La. Const, art. I is superior to all other rights in the Louisiana Constitution. As a matter of law, we know of no authority whatsoever that prohibits the Louisiana legislature from proposing a constitutional amendment to the electors of Louisiana on any topic whatsoever that would amend the constitution in any way or fashion. This has been recognized by the Louisiana Supreme Court in Police Jury of the Parish of Washington v. All Taxpayers, Property Owners and Citizens of Industrial Dist. No. 1 of Washington Parish, 278 So.2d 474 (La.1973). Thus, we know of no law that prohibits the legislature from offering an amendment to the electors to amend all or any part of article I. But because we find that this argument is not properly decided unless the proposed amendment is adopted, this issue is reserved to the plaintiffs to address at a later date if the proposed amendment is adopted.

The assignment is for purposes of this appeal without merit.

APPELLEES’ ASSIGNMENT OF ERROR 2

The prefiling requirements of La. Const, art. XIII, § 1 merely require the proposed amendment deal in general details about the topic to be proposed to the electors of Louisiana. The legislature has full authority to amend the proposed joint resolution as it sees fit so long as the alterations and amendments to the proposal are reasonably germane to the topic of the proposed amendment as prefiled. Amendments can be made at any time during the legislative process prior to both branches of the legislature adopting the same language by the necessary number of votes. The same subject matter as stated in the prefiled and advertised proposal must be germane to the topic. We find no evidence in the record before us of the legislature exceeding its authority in amending the joint resolution as originally filed. Moreover, the original proposal dealt with prohibiting marriage between anyone other than one man and one woman, a concept embodied in La. C.C. arts. 89 and 96. The amendments to the prefiled resolution arguably relate to incidents of marriage. We find that the issue is not appropriately addressed unless the electors adopt the proposed amendment and not before, for any opinion we would give would be merely advisory.

l1BThis assignment is similarly for the present without merit.

CONCLUSION

In summary, for the foregoing reasons, we deny the plaintiffs’ motion to transfer this ease to the Louisiana Supreme Court. We affirm the trial court’s overruling of McKeithen’s peremptory exceptions of no right of action and no cause of action. We reverse the judgment of the trial court granting the plaintiffs a writ of permanent injunction, enjoining the submission to the electors of Louisiana the proposed constitutional amendment relative to defense of marriage, Act 926.

MOTION DENIED; AFFIRMED IN PART; REVERSED IN PART; RENDERED.

ARMSTRONG, C.J., dissents with reasons.

11 ARMSTRONG, C.J.,

dissents with reasons.

I must respectfully dissent from this Court’s consideration of the instant appeal as I do not believe that this Court has jurisdiction. The judgment below declares Act 926 unconstitutional. Therefore, this matter should proceed by direct appeal to the Supreme Court of Louisiana. La. Const, art. V, § 5(D). When the redactors of our Constitution chose to use the term “law” in Article V, § 5(D), they chose a term broader than “statute.” See, Melancon v. State Board of Education, 249 La. 604, 188 So.2d 419 (1966); Fouchaux v. Board of Com’rs of Port of New Orleans, 213 La. 803, 35 So.2d 738 (1948). Therefore, I read “law” as used in Article V, § 5(D) to include Act 926 for purposes of direct appeal to the Supreme Court.

      . The plaintiffs specifically state that they do not allege a violation of the U.S. Constitution.

      . The prefiled proposed amendment called for a vote on the proposed amendment on November 2, 2004 (the day that the electors in Louisiana will vote in the primary for congressmen and senators and for the electors to the electoral college who will choose the President and Vice President of the United States), while the final joint resolution changed the date to September 18, 2004.

      . A joint resolution of the legislature is not a law. La. Const, art. Ill, §§ 12, 17(B), and 20 clearly distinguishes a joint resolution from a law. A joint resolution does not require the signature of the governor to have any effect. La. Const, art. Ill, § 17(B). A law, on the other hand, can only be effective if commenced as a bill with a title, passed by a specified vote (either a majority or in some cases higher) of both houses of the legislature (La. Const, art. Ill, § 15), and signed by the governor "within ten days after delivery to him if the legislature is in session on the tenth day after such delivery, or within twenty days after delivery if the tenth day after delivery occurs after the legislature adjourns." La. Const, art. Ill, § 18(A).

      . Alliance Defense Fund ("Alliance”) has also submitted a brief to this court asserting that it is an intervenor in this case. Although the record does not have a copy of a formal intervention, Alliance has supplemented the record with a transcript in which the trial court said that it would allow Alliance to intervene.

      . We note that La. Const, art. XIII, § 1 authorizes constitutional amendments at special elections. Thus, to the extent one might argue that no general election is set for September 18, 2004, we find that a constitutional amendment may presently be voted upon by the electors on any date authorized by La. R.S. 18:402 F.


author: | JAMES L. CANNELLA, Judge.

text:
    Amelia W. URRATE d/b/a Original Brunings Seafood Restaurant v. ARGONAUT GREAT CENTRAL INSURANCE COMPANY.
    No. 04-CA-256.
    Court of Appeal of Louisiana, Fifth Circuit.
    Aug. 31, 2004.
    Order Granting Rehearing Sept. 27, 2004.

      Bienvenu, Foster, Ryan & O’Bannon, John W. Waters, Jr., New Orleans, LA, for Appellant.
    Joseph M. Messina, Rudolph F. Lehrer, Lobman, Carnahan, Batt, Angelle & Nader, New Orleans, LA, for Appellee.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., JAMES L. CANNELLA and SUSAN M. CHEHARDY.
   | JAMES L. CANNELLA, Judge.

The Defendant, Argonaut Great Central Insurance Company (Argonaut), appeals from a judgment rendered against it and in favor of the Plaintiff, Amelia W. Urrate d/b/a Original Brunings Seafood Restaurant (Brunings), in the amount of $197,931.68, plus attorney fees, interest and costs. For the reasons which follow, we amend the judgment and, as amended, affirm.

Brunings was a seafood restaurant doing business in a wood frame building on pilings over Lake Pontchartrain in Jefferson Parish, Louisiana. On September 26-27, 1998, Hurricane Georges made landfall near Biloxi, Mississippi and Brunings was severely damaged by the effects of the hurricane, with part of the building being swept away. At the time, Brunings was insured by two separate insurance policies, a flood policy issued by Omaha Property and Casualty (Omaha) and a commercial policy with property insurance coverage issued by Argonaut. Following the damage to Brunings from the hurricane, Brunings made claims against both insurers. The two policies complimented each other, providing full coverage to Brunings, but not overlapping coverage. Omaha covered damages from flooding and tidal waves. Argonaut excluded damage from flooding and tidal waves. Argonaut assigned adjuster William Moulton (Moulton) to the claim and Omaha assigned adjuster Andra Wilson (Wilson). Moulton believed that the major | apart of the damage to Brunings was caused by flooding and wave action, which was not covered by the Argonaut policy. He estimated that wind damage to the property, covered by the Argonaut polices was $1,763.80 less the deductible, and $9,591.21 for loss of business for three days while electricity in the area was out. Wilson, likewise, believed that most of the damage to the restaurant was caused by-flooding and wave action, covered by the Omaha policy, and approved property loss of $314,493.93, for Replacement Cost Value (RCV) and replacement of inventory of $209,562.43 for (RCV). Brunings contends that Argonaut erred in its determination of covered losses under its policy and filed suit to recover for those additional covered losses.

Following a bench trial, the trial judge ruled that glass breakage was covered by the Argonaut policy and awarded Brunings $35,372.15 based on an estimate for replacement cost of broken windows in the restaurant submitted by Binswanger Glass. The trial court found that Argonaut lacked a good faith defense to liability and awarded penalties of $70,744.32, double the insured loss. The trial court also concluded that Brunings suffered business loss for the last quarter of 1998, following the hurricane, of $80,000 and attributed 25% of that loss to wind damage which was covered by Argonaut and added penalties of $40,000. The trial court also found that Brunings had a business loss of $70,034 in 1999 and attributed 15% of that to covered wind damage, or $10,505 and added penalties of $21,010. The trial court rendered a total judgment of $197,631.68 plus attorney fees of one-third of the amount of the judgment. It was ordered that interest from the date of judgment be paid in addition to all costs. It is from this judgment that Argonaut appeals. On appeal, Argonaut assigns five errors.

Argonaut argues, in its first two assignments of error, that the trial court erred in awarding $35,372.15 for glass repair damage. Argonaut further argues that Brun-ings has been compensated for the glass damage by Omaha and cannot |4collect twice for the same loss. In the alternative, under the “Other Insurance” provisions of its policy, Argonaut argues that the glass repair damages should be prorated between it and Omaha since both are liable for the damages.

Brunings argues, to the contrary, that the trial court ruling was correct. First, Brunings points out that Argonaut defended the insurance claim strictly on the grounds that the damage was cause by water and not wind and thus was not covered by its policy. Argonaut did not raise any affirmative defenses regarding double payment, subrogation, or other policy provision requiring prorating coverage. Further, Brunings points out that the trial court made an express factual finding that the glass damage was caused by wind and thus covered only by the Argonaut policy. As argued by Argonaut itself, the two policies are complimentary and do not cover the same types of losses. Thus, double coverage for the glass breakage does not exist. Moreover, there is no showing that Brunings was fully compensated for its damages by Omaha and, thus, lost its right to assert its claim against Argonaut.

The “Other Insurance” clause in the policy, relied on by Argonaut provides:

G. OTHER INSURANCE
1. You may have other insurance subject to the same plan, terms, conditions and provisions as the insurance under this Coverage Part. If you do, we will pay our share of the covered loss or damage. Our share is the proportion that the applicable Limit of Insurance under this Coverage Part bears to the Limits of Insurance of all insurance covering on the same basis.
2. If there is other insurance covering the same loss or damage, other than that described in 1. above [insurance under “the same plan, terms, conditions and provisions” as Argonaut’s], we will only pay for the amount of covered loss or damage in excess of the amount due from the other insurer.

|Jn its reasons for judgment, the trial court made the factual finding that the glass damage was due to wind forces. In civil cases, the appropriate standard for appellate review of factual determinations is the manifest error-clearly wrong standard which precludes the setting aside of a trial court’s finding of fact unless those findings are clearly wrong in light of the record reviewed in its entirety. Rosell v. ESCO, 549 So.2d 840 (La.1989). A reviewing court may not merely decide if it would have found the facts of the case differently, the reviewing court should affirm the trial court where the trial court judgment is not clearly wrong or manifestly erroneous. Ambrose v. New Orleans Police Department Ambulance Service, 93-3099, 93-3110, 93-3112, p. 8 (La.7/5/94), 639 So.2d 216, 221.

Based on our review of the whole record in this case, we find no error in the trial court finding that the glass breakage was due to wind force. The record contains evidence of wind speed during the hurricane reaching between 46 and 55 miles per hour. Further, the claims adjusters noted at various times that the damage to Brunings was related to both water and wind. Thus, the broken window losses caused by wind force would be covered by the Argonaut policy and not the Omaha policy. It is also noted that there is no showing in the record that Brunings has been reimbursed for the full amount of its losses from Omaha. Accordingly, like the trial judge, we find that the “Other Insurance” provisions, although belatedly pled, are not applicable to the damages for the broken glass in this case, and we find no error in the trial court award in favor of Brunings and against Argonaut for $35,372.15.

In its next assignment of error, Argonaut argues that the trial court erred in finding that Brunings sustained a covered business income loss for 1998 and 1999 under its policy. Argonaut argues that under the policy, for the loss of business income to be covered, the suspension of business must be caused by or result from “any Covered Cause of Loss.” Argonaut argues that the record indicates that | (¡Brunings’ business losses were caused by water, flood and wave action and were not covered by the Argonaut policy.

Brunings again points out that the trial court made an express contrary finding. The trial court found that 25% of the 1998 business losses were caused by wind damage and 15% of the 1999 business losses were caused by wind damage. The trial court rejected Brunings’ claim for business losses for 2000 and 2001 attributable to wind damage.

Based on the manifest error appellate standard of review we cannot find error in the trial court ruling. It was the consensus of the adjusters that the restaurant suffered both wind and water damages. The trial court found that the business loss attributable to wind damage in 1998 and 1999 was 25% and 15%, respectively. A large part of the back of the building was gone, including the window wall across the back. Other windows in the restaurant were also broken. The roof was damaged and part of it was blown back over itself by wind force. The winds reached the 50 mile per hour range during the storm. Upon review of the record, we conclude that the trial court findings concerning the business losses attributable to wind damage are supported by the record. Although it might not have been the factual finding we would have made, we cannot say, based on the record that it was clearly wrong or manifestly erroneous.

In the last two assignments of error Argonaut contends that the trial court erred in awarding double the amount found due under the policy as penalties for the insurer’s bad faith failure to pay. Argonaut argues that its decision not to pay Brunings claims was a legitimate insurance dispute and was not evidence of bad faith. Argonaut argues that although the trial court may have ruled against it, it had a reasonable basis for refusing coverage including late notice, disputed cause, previous payment by another insurer and the “Other Insurance” clause in its own policy. Alternatively, Argonaut argues that if penalties are due, then under this |7Court’s decision in Gilpin v. State Farm Mut. Auto. Ins. Co., 96-0036 (La.App. 5th Cir.5/19/99), 735 So.2d 921, the penalties should be limited to $5,000 because Brun-ings presented no proof of damages caused by the breach of the insurer’s duty to settle claims in good faith.

Bruning argues that the record is replete with evidence of Argonaut’s bad faith. Bruning points out that Argonaut was well aware of the serious damage which the restaurant sustained in the hurricane, but only attributed $1,763.80 to wind damage and 3 days of business loss. Despite repeated inquiries, Argonaut steadfastly refused to address the issues or adjust its determination of liability. Brunings also argues that the Gilpin case is not controlling and evidence of damage which the restaurant sustained by the insurer’s breach of its duty are obvious.

The determination of whether Argonaut acted in an arbitrary and capricious manner or in bad faith in its refusal to fairly and quickly settle its insured’s claim is a question of fact which will be reviewed on appeal under the manifest error standard of review. Steadman v. Sotelo, 01-0902 (La.App. 5th Cir.1/15/02), 807 So.2d 911. Considering the whole record in this case, we find that the record supports the trial court determination that Argonaut breached its duty to adjust and pay Brun-ings’ claims fairly and promptly and in doing so acted in an arbitrary and capricious manner, without probable cause. Thus, Argonaut was liable to Brunings for penalties under La. R.S. 22:1220(C).

In assessing penalties against Argonaut, the trial court awarded double the amount due under the insurance policy for two separate breaches, the failure to pay for the glass loss caused by wind force and the failure to fairly pay for the loss of business for 1998 and 1999. However, the trial court did not award actual damages to Brunings resulting from the breach of the insurer’s duty to settle the claims in good faith under La. R.S. 22:1220(A).

I sIn the case of Gilpin v. State Farm, 99-0036 (La.App. 5th Cir.5/19/99), 735 So.2d 921, this Court directly addressed the question of the assessment of penalties under La. R.S. 22:1220(C) in the absence of proof of damages resulting from the breach of the insurer’s duty and the award of damages under La. R.S. 22:1220(A). In doing so, this Court stated:

We hold that the total maximum penalty award, when there is no proof of damages caused by the breach of the insurer’s duty to settle claims in good faith under R.S. 22:1220, is $5,000.00.

Based on this Court’s holding in Gilpin, and the trial court’s failure to find damages due for the breach of the insurer’s duty, we find that the two penalty awards for the two separate breaches of the insurer’s duty, absent proof of damages caused by the breach, must be reduced from double the insurer’s liability to $5,000 each.

Brunings argues that Gilpin is not controlling because it was abrogated by the Louisiana Supreme Court in Sultana Corp. v. Jewelers Mut. Ins. Co. 03-0360 (La.12/3/03), 860 So.2d 1112. We disagree. The Court in Sultana reversed several First Circuit cases that had held that no penalties could be awarded under La. R.S. 22:1220(0 absent proof of actual damage suffered by the insured due to the insurer’s breach. However, it did not overrule Gilpin, which itself declined to follow the First Circuit by awarding $5,000 in penalties absent proof that the insured suffered damages by the insurer’s breach. Thus, we find Brunings argument that Gilpin is not controlling lacks merit.

Accordingly, for the reasons stated above, we affirm the trial court finding that Argonaut is liable to Brunings under the policy existing between the parties in effect at the time the losses were sustained in the amount of $35,372.15 for glass loss, $20,000 for 25% of the business losses in 1998 and $10,505.10 for 15% of the business losses in 1999 and that Argonaut acted in bad faith. We also affirm the 19trial court award of attorney fees of one-third of the amount of the judgment and costs which were not contested. We amend the two penalty awards imposed by the trial court, reducing the awards to $5,000 each. As amended, the penalty award is affirmed. Costs of appeal are to be paid by Argonaut.

AMENDED AND AFFIRMED AS AMENDED.

\ REHEARING GRANTED FOR CLARIFICATION

Interest on the judgment was awarded by the trial court from the date of judgment. That award was not contested on appeal and no change was intended on our original opinion. Accordingly, for clarification purposes, we note that the interest award on the judgment from the date of the judgment until paid is affirmed. In all other respects, the rehearing is denied,

/s/ James L. Cannella Judge, Court of Appeals of Louisiana

/s/ Edward A. Dufresne, Jr. Judge, Court of Appeals of Louisiana

/s/ Susan M. Chehardy Judge, Court of Appeals of Louisiana


author: 1, JAMES F. McKAY, III, Judge.

text:
    Meyer H. GERTLER and Marcia Gertler v. CITY OF NEW ORLEANS.
    No. 2003-CA-2131.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 1, 2004.
    Rehearing Denied Sept. 30, 2004.

      M.H. Gertler, Gertler, Gertler, Vincent & Plotkin, L.L.P., New Orleans, LA, for Plaintiff/Appellee.
    Sherry S. Landry, Acting City Attorney of Orleans Parish, Evelyn F. Pugh, Chief Deputy City Attorney of Orleans Parish, Joyce G. Joseph, Deputy City Attorney of Orleans Parish, Thomas A. Robichaux, Assistant City Attorney of Orleans Parish, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge JAMES F. McKAY III, Judge TERRI F. LOVE, Judge MAX N. TOBIAS Jr.).
   1, JAMES F. McKAY, III, Judge.

The City of New Orleans (City), Defendant/Appellant, appeals the judgment of the trial court granting Meyer H. and Marcia Gertler’s (Gertlers), Plaintiff/Ap-pellee’s, motion for summary judgment. This appeal is from a suit filed by the Gertlers for recovery of ad valorem taxes paid under protest pursuant to La. R.S. 47:2110 to the City for the year beginning on January 1, 2002, and ending on December 31, 2002.

The principal issues on appeal are (1) whether the leasehold improvements taxed by the City are owned by the City or the Gertlers and (2) whether the lease contract provides that the plaintiffs pay ad valorem taxes regardless of whether they owned the improvements. In granting the motion for summary judgment for the plaintiffs, the trial court found that there was no genuine issue of material fact as to whether the City was the owner of the leasehold improvements and as to the meaning of the lease language. We disagree and reverse and remand this case for further proceedings consistent with this opinion.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

On May 30, 1996, the Gertlers leased Boathouse #11, which is waterfront and underwater property in the New Orleans Municipal Yacht Harbor and owned |¡>by the City. The lease was set to expire on December 31, 2004. On November 15, 2001, the Gertlers signed a new lease for Boathouse # 11, which took effect on January 1, 2002, and is set to expire on December 31, 2030.

The City assessed ad valorem taxes for leasehold improvements to Boathouse # 11 for the period between January 1, 2002 and December 31, 2002. The ad valorem taxes were in the amount of $1699.70 in taxes and an additional $850.47 in penalties and charges. On July 23, 2002, the Gert-lers paid the taxes under protest pursuant to La R.S. 47:2110 and shortly thereafter filed suit.

The Gertlers filed a motion for summary judgment, and the City filed an opposition and competing motion for summary judgment. Both motions were heard on September 12, 2003. The trial court denied the City’s motion and granted the Gertlers’ motion. The trial court assessed that there were two pertinent questions (1) Who owned the improvements that were taxed? and (2) Did the lease contract provide that the plaintiffs pay the tax regardless of whether they owned the improvements? The lower court found that:

(1) The City, in its response to plaintiffs first request for defendant’s admission of fact, judicially admitted that it owned the improvements.

(2) The lease entered into between the parties limits the lessee’s obligation to pay taxes to the improvements owned by the lessee, and any ambiguity in the contract should favor the lessee.

1 /The trial court ordered that the City reimburse the Gertlers the 2002 ad valo-rem taxes, interest and penalties in the full amount of $2,550.17, paid under protest, and the City brought this suspensive appeal.

STANDARD OF REVIEW

Summary judgments are reviewed de novo on appeal whereby the appellate court asks the same questions as does the trial court in determining whether summary judgment is appropriate, i.e., whether there is any genuine issue of material fact and whether the movant is entitled to judgment as a matter of law. Napoleon v. ABC Ins. Co., 2003-1602, p. 3 (La.App. 4 Cir. 4/07/04), 871 So.2d 658, 660 (quoting Marcades v. Cleanerama, Inc., 2002-0357, p. 3 (La.App. 4 Cir. 9/25/02), 831 So.2d 288, 289.). A motion for summary judgment will be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B). This article was amended in 1996 to provide that “summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action.... The procedure is favored and shall be construed to accomplish these ends.” La. C.C.P. art. 966(A)(2). In 1997, the article was further amended to specifically alter the burden of proof in summary judgment proceedings as follows: The burden of proof remains with the movant. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.” La. C.C.P. art. 966(C)(2). Jefferson v. Cooper/T. Smith Corp., 2002-2186, pp. 3-4 (La.App. 4 Cir.10/1/03), 858 So.2d 691, 692 (quoting Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181, 99-2257, p. 7 (La.2/29/00), 755 So.2d 226, 230-31.).

Further, despite the legislative mandate that summary judgments are now favored, factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing the motion and all doubt must be resolved in the opponent’s favor. Jefferson, 2002-2136 at p. 5, 858 So.2d at 693-94 (quoting Knowles v. McCright’s Pharmacy, Inc., 34,559 (La.App. 2 Cir. 4/4/01), 785 So.2d 101).

DISCUSSION

The interpretation of a contract “is the determination of the common intent of the parties.” La. C.C. art. 2045. When a contract is not ambiguous or does not lead to absurd consequences, it will be enforced as written and its interpretation is a question of law for a court to decide. Thus, when the parties agree that a valid contract binds them and that the material facts involved in the dispute are not contested, the contract’s application to a case is a matter of law and summary judgment is appropriate. Am. Deposit Ins. Co. v. Myles, 00-2457, p. 8 (La.4/25/01), 783 So.2d 1282, 1286 (citations omitted).

Thus, as a threshold question, this Court must determine whether or not the contract is ambiguous. The City argues that the trial court did not correctly interpret the contractual clause entitled “TAXES” in the new lease contract. The clause reads:

Lessee agrees to pay, before delinquency, all property taxes on the leasehold improvements and any additions and any other property taxes due on any furniture, fixtures, equipment and other property of Lessee related to the Leasehold site.

IfiThé City argues that the clause should be interpreted to mean that the Gertlers were responsible for ad valorem taxes on all leasehold improvements on the Boathouse # 11 property before January 1, 2002, regardless of whether the Gertlers had title to those leasehold improvements on or after January 1, 2002. The Gertlers argue, and the trial court found, that the language “other property of Lessee” refers back to the whole clause, and thus, the Gertlers are only responsible for ad valo-rem taxes on property they had title to at the time the taxes were assessed.

This Court finds that there are two possible interpretations upon which, without further determination of intent, reasonable persons may disagree. The Gertlers and the trial court would have this Court read the contractual clause as one extended sentence, which the words “other property of Lessee” qualify to mean simply that the lessee only agrees to pay taxes on property they have title to. The City would have the Court read the contractual clause as essentially two sentences, which would read: “Lessee agrees to pay, before delinquency, all property taxes on the leasehold improvements and any additions. And, Lessee agrees to pay any other property taxes due on furniture, fixtures, equipment and other property of Lessee related to this leasehold site.” The contract provides no explicit evidence definitively favoring one interpretation over the other.

In other parts of the lease contract, the terms “improvements” and “property” are more specifically defined. For example, in the clause covering ABANDONMENT”, the contract, when speaking of abandoned property on lessor’s property, uses narrower language which reads: “any personal property belonging to Lessee which remains on the Leased Premises.” Moreover, in the clause covering “TITLE TO IMPROVEMENTS AT TERMINATION OR [ (¡EXPIRATION OF LEASE”, the contract again uses narrower language, noting that “the title to all improvements or construction placed on the leased site by Lessee shall, ipso facto, be vested in the City of New Orleans, without payment or compensation for the cost or value thereof.” These clauses show that in other parts of the contract the City expressly defined the extent of the other party’s obligations. That is, had the City wanted to remove the tax liability of the Gertlers on leasehold improvements which the City had taken possession of, the City, as in other clause of the contract, could have expressly removed liability, rather than removing the liability in an implied round-about manner.

If the language of the lease is ambiguous or susceptible to multiple interpretations, the intent of the parties must be determined and summary judgment is inappropriate. See Canal 66 P’ship v. Reynoir, 2002-0355, pp. 9-10 (La.App. 4 Cir. 1/15/03), 838 So.2d 52, 55. Because the contract is ambiguous, it follows that there are issues of material fact to be resolved by the trier of fact at a trial on the merits. Boutin v. Rodrigue, 01-1235, p. 8 (La.App. 3 Cir. 2/06/02), 815 So.2d 988, 991.

Regardless of which party the trial court determines on remand to have had title to the pre-2002 leasehold improvements, the Gertlers have title to leasehold improvements made on and after January 1, 2002 and will not, by their own reasoning under Schulingkamp v. Heaton, 455 So.2d 1181 (La.App. 4th Cir.1984), writ denied, 460 So.2d 1045 (La.1984), lose title until their lease term ends on December 31, 2030. The trial court’s reasons for judgment were not clear as to whether it agreed with the Gertler’s determination that they, the Gertlers, need not pay taxes on improvements to the immovable property, if the City had title to this immovable property. On remand, the trial court should expressly state its position.

|7Although, the City advances multiple assignments of error arguing that the trial court committed manifest error, we have determined that summary judgment is inappropriate in this matter; therefore, we decline to address these arguments as the matter is remanded to the trial court for further adjudication.

Accordingly, for the above and foregoing reasons we reverse the judgment of the trial court, vacate its judgment and remand the matter for further determinations consistent with this opinion.

REVERSED, VACATED AND REMANDED.

      . An ordinance of the City of New Orleans (Ordinance # 20339 Mayor Counsel Series) determined that "whereas, it is necessary to do practical comprehensive planning for the future of the Municipal Yacht Harbor due to these various leases,” it is necessary "to provide for a new lease agreement that better fit the needs of the Municipal Yacht Harbor.” The City, thus, forced the existing lease owners to sign a new lease by November of 2001 or loose their lease when their previous lease expired.