author: ^FITZSIMMONS, J.

text:
    ANR PIPELINE COMPANY v. LOUISIANA TAX COMMISSION, Malcolm B. Price, Jr., Chairman of the Louisiana Tax Commission, Kenneth P. Naquin, Jr., Member of the Louisiana Tax Commission, and Russel R. Gaspard, Member of the Louisiana Tax Commission. Tennessee Gas Pipeline Company v. Louisiana Tax Commission, Malcolm B. Price, Jr., Chairman of the Louisiana Tax Commission, Kenneth P. Naquin, Jr., Member of the Louisiana Tax Commission, and Russel R. Gaspard, Member of the Louisiana Tax Commission. UT Offshore Systems, L.L.C. v. Louisiana Tax Commission, Malcolm B. Price, Jr., Chairman of the Louisiana Tax Commission, Kenneth P. Naquin, Jr., Member of the Louisiana Tax Commission, and Russel R. Gaspard, Member of the Louisiana Tax Commission. Stingray Pipeline Company, L.L.C. v. Louisiana Tax Commission, Malcolm B. Price, Jr., Chairman of the Louisiana Tax Commission, Kenneth P. Naquin, Jr., Member of the Louisiana Tax Commission, and Russel R. Gaspard, Member of the Louisiana Tax Commission. ANR Pipeline Company v. Louisiana Tax Commission, Malcolm B. Price, Jr., Chairman of the Louisiana Tax Commission, Kenneth P. Naquin, Jr., Member of the Louisiana Tax Commission, and Russel R. Gaspard, Member of the Louisiana Tax Commission. Southern Natural Gas Company v. Louisiana Tax Commission, Malcolm B. Price, Jr., Chairman of the Louisiana Tax Commission, Kenneth P. Naquin, Jr., Member of the Louisiana Tax Commission, and Russel R. Gaspard, Member of the Louisiana Tax Commission. ANR Pipeline Company, Stingray Pipeline Company, L.L.C., Ut Offshore System, L.L.C., Tennessee Gas Pipeline Company, and Southern Natural Gas Company v. Louisiana Tax Commission, Malcolm B. Price, Jr., Chairman of the Louisiana Tax Commission, Kenneth P. Naquin, Jr., Member of the Louisiana Tax Commission, and Russel R. Gaspard, Member of the Louisiana Tax Commission.
    Nos. 2001 CA 2594R to 2001 CA 2600R.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 23, 2004.
    Rehearing Denied April 6, 2004.

      Hilton S. Bell, Angela W. Adolph, New Orleans, Laurence E. Garrett, Colorado Springs, CO, Counsel for Plaintiffs/Appellants, ANR Pipeline Company, Stingray Pipeline Company, L.L.C., UT Offshore Systems, L.L.C., Tennessee Gas Pipeline Company and Southern Natural Gas Company.
    Brian AEddington, Theodore L. (Ted) Jones, Baton Rouge, Counsel for Defendant/Appellee, Louisiana Tax Commission.
    Before: FOIL, FITZSIMMONS, and GAIDRY, JJ.
   ^FITZSIMMONS, J.

This consolidated case has been remanded from the Louisiana Supreme Court to address the issues presented by the Louisiana Tax Commission’s (LTC) exception raising the objection of no cause of action.

JURISPRUDENTIAL DEVELOPMENT

Five interstate pipeline companies, ANR Pipeline Company, Tennessee Gas Pipeline Company; Stingray Pipeline Company, L.L.C.; Southern Natural Gas Company; and UT Offshore System, L.L.C. (collectively “ANR”), filed seven individual suits in district court. The cases were consolidated. Among other actions, the district court overruled the peremptory exception raising the objection of no cause of action as to ANR’s suit on the 1994 to 1999 tax payments. The district court sustained the dilatory exception raising the objection of prematurity and the peremptory exception raising the objection of no cause of action in five suits relative to 2000 tax payments made under protest. Finally, the court sustained LTC’s exception raising the objection of no cause of action relative to the plaintiffs’ requests for declaratory judgment that La. R.S. 47:1856K and the actions by the LTC violated the precepts of equal protection, Article VII, section 18 of the Louisiana Constitution, and the commerce clause of the United States Constitution.

Following an appeal to the Louisiana First Circuit Court of Appeal, we determined that “a taxpayer who pays his taxes under protest, thereby creating a justicia-ble controversy, may choose to ask the district court for a declaratory judgment on constitutional issues without waiting for a final adjudication by the Commission.” ANR Pipeline Company v. Louisiana Tax Commission, 2001-2594, 2001-2595, 2001-2599, 2001-2597, 2001-2598, 2001-2596, p. 10 (La.App. 1 Cir. 3/20/02), 815 So.2d 178, 186, writ granted, 2002-1479 (La.3/21/03), 840 So.2d 527 (affirmed and remanded). Thereafter, the portion of the judgment of the district court, that had sustained the exceptions raising the objection of prematurity and no cause of action in five of the seven suits, was reversed in each case to which it applied. Id.

The Louisiana Supreme Court held that the first circuit properly reversed the exception of prematurity. However, the high court additionally noted that the court of appeal “failed to address the issues presented by the LTC’s exception of no cause of action, which was also granted by the trial court.” The case was, thereupon, remanded to this court for consideration of the LTC’s exception of no cause of action. The district court granted the LTC’s exception based on the objection of no cause of action for the request for declaratory judgment on the basis that until there was a final determination by the LTC, no cause of action could arise. In the initial decision, this court provided reasons for the reversal of the grant of exception of no cause of action relative to the constitutional claims. Accordingly, we respectfully infer that the directive from the supreme court entails the issues surrounding our reversal of the district court’s grant of exception of no cause of action relative to the viability of an action against the LTC for the recovery of taxes.

\ DISCUSSION

An exception of no cause of action poses the question of whether the law affords a remedy against the defendant under the facts alleged by the appellants. Industrial Companies, Inc. v. Durbin, 2002-0665, p. 6 (La.1/28/03), 837 So.2d 1207, 1213. The exception is triable on the face of the pleading that it opposes, and for the purpose of determining the issues raised by the exception, the well-pleaded facts in the pleading must be accepted as true. Id. In reviewing a trial court’s ruling sustaining an exception of no cause of action, the court of appeal should subject the case to de novo review because the exception raises a question of law, and the trial court’s decision is based only on the sufficiency of the petition. Cleco Corporation v. Johnson, 2001-0175, p. 3 (La.9/18/01), 795 So.2d 302, 304. Every reasonable interpretation must be accorded in favor of upholding the adequacy of the petition and the opportunity for the plaintiff to present evidence at trial. Industrial Companies, 2002-0665, at p. 7, 837 So.2d at 1213.

In the case at hand, the LTC asserted that it did not possess the statutory authority to order a non-party tax collector to refund any purported taxes; therefore, ANR asseverated that no viable cause of action had been asserted against the LTC. Stated alternatively, the LTC argued that the tax collectors were necessary party defendants against whom such a cause of action could be maintained, and in the absence of their presence as named defendants, any judgment would only constitute a prohibited advisory opinion. See Women’s Health Clinic v. State, 2002-1208, 2002-0016, pp. 4-5 (La.App. 1 Cir. 5/10/02), 825 So.2d 1208, 1211, writ denied, 2002-2002 (La.11/1/02), 828 So.2d 586.

The LTC is statutorily empowered with the duty and responsibility to “measure the level of appraisals or assessments and the degree of uniformity of assessments for each major class and type of property in each parish throughout the state.” La. R.S. 47:1837 B(l). Article 47:1837 B(l) further provides that following |7a public hearing on complaints, if an appraisal deviates “by more than ten percent from the percentage of fair market value or use valuations as required by Article VII, Section 18 of the Constitution of Louisiana and the laws of this state affecting property taxation, the tax commission shall order the assessor ... to reappraise all property within the parish or district or within one or more property classifications.”

The tax protest at issue was filed pursuant to La. R.S. 47:1856, which specifically addresses the assessment of public service property. At the time of ANR’s payment under protest and its initiation of the first of the lawsuits, the provisions of La. R.S. 47:1856 D(l) stated:

Any company may institute suit pursuant to the Administrative Procedure Act (R.S.49:950 et seq.) contesting the correctness or legality of any final determination of assessed valuation for taxation by the Louisiana Tax Commission. However, to state a cause of action, the petition instituting such suit shall set forth not only the assessed valuations for taxation made by the Louisiana Tax Commission appealed from but also the assessed valuations for taxation that the company on its report made pursuant to R.S. 47:1852(A) and the factual evidence admitted at the hearing conducted pursuant to Subsection A of this Section, deems to be correct and legal and the reasons therefor.

Prior to the supplemental and amending petitions by the plaintiffs, section D was amended to state that “the petition instituting such suit shall name the Louisiana Tax Commission as defendant.” ANR’s supplemental and amending petitions named the LTC as a party defendant.

Moreover, La. R.S. 47:1856 F(l)(a)(i), as amended in 2000, states:

If the assessed valuation finally determined by the court is less than the amount determined by the Louisiana Tax Commission, the company shall be entitled to a credit against future property taxes in each jurisdiction affected or a refund in cash from each jurisdiction. Such credit shall be deducted by the Louisiana Tax Commission from the assessment of the year subsequent to any final determination. If a company chooses a refund, that refund shall be paid by the tax collector of each | effected jurisdiction from current tax collections. In no event shall that refund be paid later than ninety days from the date on which the judgment is rendered and becomes final. Interest shall be credited at the minimum rate as provided in R.S. 39:1217.1. (Emphasis added.)

ANR avers that the statutory requirement that the LTC be named as defendant does not preclude the concomitant legislative requirement to name the tax collectors for the sought after remedy of a refund. We disagree. The authority and duty to supervise and regulate the assessments of local property taxes and public service properties clearly fall under the aegis of the LTC. La. R.S. 47:1837. The LTC remains statutorily imbued with the power to ascertain uniformity or lack of uniformity with constitutional or statutory requirements for each parish in the state. La. R.S. 1837 B(l). In the absence of conformity of assessments, the LTC is mandated to order the assessor to reappraise properties. Id. Consistently, at the time of ANR’s petitions to the court, La. R.S. 47:2110 E provided: “Any taxpayer in the state who has paid his taxes under protest as provided herein and who has filed suit under the provisions of R.S. 47:1856 ... shall cause to issue in said suit notice for the collection of said taxes in the parish or parishes where the property is located .... ” The LTC does not dispute that ANR properly issued said suit notices to the tax collectors in each of the individual lawsuits under review.

This suit challenged the constitutional solidity of taxation by the LTC. Given ANR’s adherence to the statutory requirements at the time that the causes of actions were asserted, this court deems the naming of the LTC as the defendant to state a cause of action and potential remedy against the LTC. For these reasons, in each of the five cases to which this discussion of the exception of no cause of action applies (i.e., suit numbers 480,159; 480,-160; 480,161; 480,163; and 480,373), we reverse the district court’s grant of the exception of no cause of action, and remand the matter to the district court for its consideration in |flconformity with this opinion. Costs associated with the remanded portion of this appeal are assessed as follows: Tennessee Gas Pipeline Company, UT Offshore Systems, L.L.C., Stingray Pipeline Company, L.L.C., ANR Pipeline Company, and Southern Gas Company shall bear one-half of the cost in the sum of $6,816.10, in equal proportions. LTC is assessed one-half of the costs in the sum of $6,816.09.

MOTION TO DISMISS DENIED; PROCEEDINGS BEFORE LOUISIANA TAX COMMISSION STAYED; REVERSED AND REMANDED.

      . The district court judgment refers to plaintiffs’ request for judicial review of an initial determination of assessed value and recovery of taxes paid under protest in Suit Nos. 480,-159; 480,160; 480,161; 480,163; and 480,-373.

      . ANR's amended petitions for declaratory judgment and review of the determination by the Louisiana Tax Commission of assessed valuation of the properties, collectively alleged constitutional claims based on equal protection and due process clauses of the Louisiana and United States Constitutions, the uniformity requirement of Article VII, Section 18 of the Louisiana Constitution, and the commerce clause of the United States Constitution. ANR contended that these constitutional claims fell beyond the subject matter jurisdiction of LTC and should be transferred to the district court. The trisil court’s grant of the LTC's exception of no cause of action as to the request for declaratory judgment was premised on the lack of any cause of action prior to LTC’s final determination of the assessed value of the properties under contention.

      . The following two individual cases in this consolidated suit are not part of this remanded appeal: (1) The first circuit affirmed the trial court judgment denying the application for writs of mandamus and prohibition and application for exercise of supervisory jurisdiction in ANR Pipeline Company, et al. v. Louisiana Tax Commission, et al., 2001 CA 2600 (La.App. 1 Cir. 3/20/02), 815 So.2d 178.(2) This court also granted the LTC’s motion to dismiss the appeal in ANR Pipeline v. Louisiana Tax Commission, et at, 2001 CA 2594, on the basis that the trial court rulings were interlocutory and, therefore, not appeal-able

      . Acts 2000, 1st Ex.Sess., No. 74, sec. 1, eff. April 17, 2000.

      . Title 47, "Tax Collectors,” Part II, "Payment and Collection Procedure.”


source: Caselaw Access Project

author: IsSOL GOTHARD, Judge.

license: Public Domain

text:
    POWELL INSURANCE AGENCY, INC. v. Michael DIRMANN.
    No. 03-CA-1177.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 23, 2004.
    Rehearing Denied March 29, 2004.

      Jerome M. Volk, Jr., Michael E. Eseudier, D’Aquila, Volk, Mullins & Contreras, Kenner, LA, for Plaintiff/Appellant.
    Leland R. Gallaspy, Covington, LA, for Defendant/Appellee.
    Panel composed of Judges SOL GOTHARD, MARION F. EDWARDS and SUSAN M. CHEHARDY.
   IsSOL GOTHARD, Judge.

Plaintiff Powell Insurance Agency, Inc. (Powell), appeals a judgment of the trial court that denied its request for preliminary injunction against defendant Michael Dirmann on the basis of an employment contract. For reasons that follow, we affirm.

Powell and Dirmann entered into a “Producer Agreement” on November 1, 1997 whereby Powell employed Dirmann to “service and sell insurance accounts.” On November 1, 2000, the parties entered into an “Independent Agent Agreement” which superseded and terminated “all previous contract, agency, solicitor and/or producer agreements, whether oral or written, between the parties.” That agreement contained a non-compete clause.

According to the “Petition for Damages and Injunctive and Declaratory Relief’ filed by Powell, the agreement between the parties was terminated on March 31, 2002 by Powell for cause. Powell asserts that after Dirmann was terminated, he “contacted customers of Powell and solicited these customers to transfer their insurance business to other agencies outside the Agreement.” As a result of the filing of the petition, a rule to show cause why a preliminary injunction should not issue to Dirmann “restraining, enjoining and prohibiting him, hhis agents, employees, and all persons, firms or corporation acting or claiming to act on his behalf, or in concert with him from contracting, soliciting, writing, clients, customers, accounts of, or using the property of Powell Insurance Agency, Inc. during the pendency of these proceedings.”

Powell argues that Dirmann is soliciting clients from lists that are the “sole property of Powell,” in violation of the non-compete clause of the 2001 agreement. Powell maintains that a list of clients, complete with the type of insurance coverage provided and the expiration dates, termed a “book of business” was established before the 2001 agreement was executed and became the property of Powell by the terms of the 2001 agreement. Powell further asserts that, when Dirmann’s employment was terminated with Powell, he was bound by the non-compete agreement not to solicit any clients in the book of business.

Dirmann argues that under the terms of the 2001 agreement, the book of business remained his and the restrictions of the non-compete clause were inapplicable to these clients.

At the hearing the trial court heard testimony from Michael Dirmann who stated that he was originally employed by Powell as an insurance agent and employee of the company in 1997. However, his status changed from employee receiving a W-2, to an independent producer being paid on a 1099 with the new contract signed in 2001. He further explained that with the new contract he was allowed to sell or solicit for any other agency broker in any parish or any territorial designation with some limitations described in the agreement. In conclusion, he stated that under the 1997 agreement he was an exclusive agent and employee of Powell; but, with the 2001 agreement his status changed to that of independent agent. Under the new agreement, he was not the exclusive agent or employee of Powell. Dirmann went on to explain his understanding of the non-compete clause, and testified that he had not breached the agreement. The clients he solicited were | ¿individuals in his book of business and not the businesses prohibited by the agreement.

Stephanie May, a manager for Powell also testified at the hearing. She presented a list of names of insureds on which change of agent of record letters were received, changing the agent from Powell to the new agency represented by Dir-mann. Ms. May admitted that some of the names on the list included Mr. Dirmann, his family and friends and were included in his book of business.

After considering the testimony and the terms of the agreement, the trial court denied the request for a preliminary injunction.

This court has recently discussed the showing necessary to obtain a preliminary injunction in Tri-Millennium v. Jena Band of Choctaw, 98-612, 98-532 (La.App. 5 Cir. 12/16/98), 725 So.2d 533; writ denied 99-0547 (4/9/99), 740 So.2d 637:

LSA-C.C.P. article 3601 provides that a preliminary injunction may be issued during the pendency of an action for a permanent injunction on a prima facie showing that the petitioner will prevail on the merits and that the potential losses are those for which money damages are inadequate or are incapable of measurement by pecuniary standards. In order to obtain a preliminary injunction, a plaintiff must show that he will suffer irreparable harm if the injunction is not granted, that he is entitled to relief sought, and he must make a prima facie showing that he will prevail on the merits.
(Citations omitted)

Id., 725 So.2d at 534-535

The basis for the request for the preliminary injunction is Powell’s claim that Dir-mann breached the non-compete clause of the 2001 agreement. It is clear from the trial court’s oral reasons for judgment that it found the agreement, and the arguments presented by Powell based on the agreement, did not support a prima facie showing that it would prevail on the merits.

The 2001 agreement, written by Powell, states that:

Powell hereby contracts Mike Dirmann to service and sell insurance accounts, which accounts and expirations pertaining thereto are and shall be the sole property of Powell, and to service his existing book | Bof business (see attached Exhibit 1) with Powell, on the following terms and conditions.

Exhibit 1 referred to in the agreement is attached to the agreement and contains a list of names of insureds which constitute Mr. Dirmann’s book of business. Some of the insureds Powell used as a basis for the lawsuit are listed in this exhibit. The non-competition/non-solicitation clause contained in the agreement, which is numbered as paragraph 11, restricts Dirmann from engaging in any business activities as listed in paragraph 1 titled, “Solicitation for Powell” for a period of two years after termination of the agreement.

Paragraph 1 entitled “Solicitation for Powell” referred to in the non-compete clause of the agreement reads in pertinent part as follows:

Mike Dirmann does hereby agree to solicit applications for Commercial Lines, Property, Casualty, Group, Life, Disability, Health, Third Party Administration Services including but not limited to Risk Management, Claims Administration, Safety and Loss Control by and on behalf of Powell alone for areas listed below and to the exclusion of his individual account, all other insurance companies or agencies and other sellers of insurance, for and from the following types of customer businesses and market areas: restaurants, supermarkets, grocery stores, farms, horse/equine businesses, municipalities, sheriff offices, governmental bodies or agencies, H & H Trucking and Oak Haven Farms. P/A may solicit for any other broker or agent but only for or from any type of customer, business, or market areas not listed above in this paragraph and accordingly the provisions of Section 11 herein shall only be applicable to the markets listed above in this paragraph.
(Emphasis added)

Using the standard for the issuance of the preliminary injunction, we agree with the trial court that there is no prima facie showing that the non-compete clause was breached. The plain language of Paragraph 1 of the agreement attaches the non-compete clause of the contract only to the “markets listed above in this paragraph.” Markets listed in that paragraph are, “restaurants, supermarkets, grocery stores, farms, horse/equine businesses, municipalities, sheriff offices, governmental bodies or agencies, H & H Trucking and Oak Haven Farms.” There is no mention of the book of business attached to the agreement as Exhibit 1.

| r,The testimony and documentary evidence produced at the hearing on the issuance of the preliminary injunction do not indicate that Dirmann has solicited any business in any of the restricted market areas. The examples used by Powell to support the preliminary injunction are from the book of business which is not restricted by the non-compete agreement. Accordingly, we find no error in the judgment of the trial court denying the preliminary injunction.

AFFIRMED.


author: | WILLIAMS, Judge.

text:
    Richard L. BAXTER, Plaintiff-Appellee, v. John DOE, et al., Defendant-Appellant.
    No. 38,062-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 26, 2004.

      J. Michael Rhymes, Monroe, for Appellant.
    Shelly D. Dick, Baton Rouge, Jason Bonaventure, for Appellee, Richard L. Baxter.
    Jefferson B. Joyce, for Appellee, New Hampshire Insurance Company.
    William T. McNew, Monroe, for Appel-lee, Gannett River States Publishing Company.
    Before WILLIAMS, STEWART and MOORE, JJ.
   | WILLIAMS, Judge.

The defendant, John Scott, appeals a judgment in favor of the third-party defendant, New Hampshire Insurance Company (“New Hampshire”). The district court granted New Hampshire’s motion for summary judgment, finding that the insurer did not owe a duty to defend Scott under the terms of the policy. For the following reasons, we affirm.

FACTS

In April 2002, Richard Baxter, the former Vice-President of External Affairs at the University of Louisiana Monroe (ULM), filed a petition for damages against the defendants, John Doe numbers one through six, alleging that these unidentified individuals published false and defamatory statements about him on an internet website. Subsequently, Baxter filed an amended petition naming John Scott, a former ULM professor, as an additional defendant. Baxter alleged that Scott had paid Homestead Technologies, Inc. (“Homestead”), an internet service provider, to obtain space for a website to be viewed on the internet and that Scott had used the website to publish, author, edit or disseminate malicious, false and defamatory statements concerning Baxter’s activities at ULM.

In July and August 2002, Scott requested that his homeowner insurer, New Hampshire, defend him against Baxter’s lawsuit. After New Hampshire declined to provide a defense, Scott filed a third-party demand alleging that his insurer had a duty to defend him against the defamation claim under his homeowners’ insurance policy. New Hampshire filed a motion for summary judgment denying coverage or a duty to defend on the grounds that the allegations of the lawsuit did not meet the policy definition | ¡>,of “occurrence” and that the damages asserted did not constitute “bodily injury” or “property damage” as defined in the policy. The insurance policy defined the term occurrence as “an accident, including continuous or repeated exposure to ... harmful conditions” resulting in bodily injury or property damage. Bodily injury was defined as bodily harm, sickness or disease. Property damage was defined as physical injury, destruction or loss of use of tangible property.

After a hearing, the district court granted the motion for summary judgment, finding that New Hampshire did not owe a duty to defend Scott since there had not been an “occurrence” as required for coverage under the policy. Scott appeals the judgment.

DISCUSSION

Scott contends the district court erred in granting the motion for summary judgment. Scott argues that the court incorrectly found that there was no coverage afforded by the insurance policy and that New Hampshire did not owe a duty to defend the lawsuit despite the lack of an express exclusion of defamation claims.

Summary judgment shall be rendered if the pleadings, depositions, answers to interrogatories, admissions on file and any affidavits, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966. The mover has the burden of establishing the absence of a genuine issue of material fact. If the mov-ant will not bear the burden of proof at trial on the matter, the mover is required to point out to the court the absence of factual support for one or |amore elements essential to the adverse party’s claim or action. The non-moving party must then produce factual support sufficient to satisfy her evidentiary burden at trial. LSA-C.C.P. art. 966(C)(2). Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. NAB Natural Resources v. Willamette Industries, Inc., 28,555 (La.App.2d Cir.8/21/96), 679 So.2d 477.

An insurance policy is an agreement between the parties and should be interpreted by using the general rules of contract interpretation set forth in the Louisiana Civil Code. Ducote v. Koch Pipeline Co., L.P., 98-0942 (La.1/20/99), 730 So.2d 432. LSA-C.C. art. 2045 defines interpretation of a contract as the determination of the common intent of the parties. Such intent is to be determined in accordance with the plain and ordinary meaning of the language used in the policy, unless the words have acquired a technical meaning. Ducote, supra; Gleason v. State Farm Mutual Auto. Ins. Co., 27,297 (La.App.2d Cir.8/23/95), 660 So.2d 137. Absent a conflict with statutory provisions or public policy, insurers are entitled to limit their liability and impose reasonable conditions upon the obligations assumed in a given policy. Ducote, supra; Gleason, supra.

Generally, an insurer’s duty to defend lawsuits against its insured is broader than its liability for damage claims. The duty to defend is determined by the allegations of the plaintiffs petition, with the insurer being obligated to furnish a defense unless the petition unambiguously excludes coverage. Yount v. Maisano, 627 So.2d 148 (La.1993); Matheny v. Ludwig, 32,288 (La.App.2d Cir.9/22/99), 742 So.2d 1029. Thus, assuming all the allegations of the petition to be true, if there would be both coverage under the policy and liability to the plaintiff, the insurer must defend the lawsuit regardless of its outcome. Yount, supra; Matheny, supra.

In the present case, the policy provides in pertinent part:

COVERAGE E-Personal Liability
If a claim is made or a suit is brought against an “insured” for damages because of “bodily injury” or “property damage” caused by an “occurrence” to which this coverage applies, we will:
1. Pay up to our limit of liability for the damages for which the “insured” is legally liable ....; and
2. Provide a defense at our expense by counsel of our choice, even if the suit is groundless, false or fraudulent.

In the amended petition for damages, Baxter alleged that Scott paid Homestead to provide a website to be viewed on the internet. Baxter further alleged that Scott authored, edited and published false, malicious and defamatory statements about him on the website. As previously stated, New Hampshire’s duty to provide a defense under the policy arises from a claim against the insured for damages caused by an occurrence, which is defined as an accident. However, a reading of the petition shows that Baxter was complaining about intentional conduct by Scott.

The record shows that Baxter served as a public official in his capacity as a vice-president at ULM. Thus, Baxter was required to prove by clear and convincing evidence that Scott made the defamatory statements with actual malice, i.e., he knew of the statement’s falsity or made the statement with reckless disregard of whether or not it was false. Trentecosta v. Beck, 96-2388 (La.10/21/97), 703 So.2d 552; Anders v. Andrus, 00-00552 (La.App. 3rd Cir.12/6/00), 773 So.2d 289. This “actual malice” requirement makes defamation of a public official an intentional tort, an act excluded from coverage by the New Hampshire policy’s definition of occurrence.

Considering the allegations of the petition and the provisions of the insurance policy, the district court reasonably determined that Scott would not be able to establish that New Hampshire owed a duty to defend him against Baxter’s defamation action. Therefore, we cannot say the district court erred in granting summary judgment in favor of the third-party insurer. The assignment of error lacks merit. In reaching this disposition, we pretermit a discussion of the remaining assignment of error regarding the denial of Scott’s motion to strike.

CONCLUSION

For the foregoing reasons, the district court’s judgment is affirmed. Costs of this appeal are assessed to the appellant, John Scott.

AFFIRMED.


author: 11 WILLIAMS, J.

text:
    TOMMIE’S NOVELTY, et al., Plaintiff-Appellant-Intervenor, v. Raul VELASCO, et al., Defendant-Appellant. Gregory Taylor, et al., Plaintiff-Appellee, v. Sylvia Vargas, et al., Defendant-Appellant.
    Nos. 37,924-CA, 37,925-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 26, 2004.
    Linda S. Blackman, Bossier City, for Appellant, Bridgefield Casualty Insurance Company and Tommie’s Gaming, LLC.

      Daniel S. Wanko, Jr., for Appellee, U.S. Specialty Insurance.
    Mark K. Manno, for Appellee, Gregory and Tena Taylor.
    James A. Mijalis, Shreveport, for Appel-lee, Lafayette Insurance Company.
    Before BROWN, WILLIAMS and STEWART, JJ.
   11 WILLIAMS, J.

The issue presented on appeal of these consolidated cases is whether an employer’s workers’ compensation insurer has a right to reimbursement of compensation benefits and/or medical expenses from the employer’s uninsured/underinsured (“UM/UIM”) motorist carrier, when the compensation insurer alleges that the injured worker has committed fraud, even though the employer’s UM/UIM policy specifically excludes the payment of benefits under the workers’ compensation law.

The appellants, Bridgefield Casualty Insurance Company (“Bridgefield”) and Tommie’s Novelty Gaming, LLC (“Tommie’s”), appeal a trial court judgment which: (1) granted a motion for summary judgment in favor of Gregory M. Taylor (“Taylor”), (2) sustained Taylor’s exceptions of no cause of action and no right of action, (3) prohibited Bridgefield from attaching the proceeds of the Lafayette Insurance Company (“Lafayette”) UM/UIM policy, (4) permitted Taylor and his wife, Tena Taylor (“Taylors”), to withdraw the $25,000 UM/UIM proceeds from the registry of the court, and (5) ordered that a writ of attachment issue in favor of U.S. Specialty Insurance Company (“U.S. Specialty”). For the following reasons, we affirm.

FACTS

On November 9, 2000, Taylor, while in the course and scope of his employment, was operating a 1998 Chevy Lumina owned by his employer, Tommie’s, and insured by Lafayette. Taylor was struck by a 1994 Chevy Lumina which was operated by Sylvia Vargas (“Vargas”), owned by Raul Velasco and insured by State Farm Mutual Automobile Insurance Company | ¡/“State Farm”). The employer’s automobile liability insurance policy with Lafayette included coverage for UM/UIM. Taylor’s personal automobile liability insurance policy also was issued by State Farm and included UM/UIM coverage.

At the time of the automobile accident, U.S. Specialty provided workers’ compensation insurance coverage for Tommie’s. Taylor filed a claim in the Office of Workers’ Compensation (“OWC”) and received workers’ compensation benefits from U.S. Specialty for the injuries he sustained in the work-related accident. Tommie’s and U.S. Specialty filed a petition against Raul Velasco, Vargas and State Farm, seeking reimbursement of the workers’ compensation benefits paid to Taylor. The Taylors filed a personal injury lawsuit against the same defendants, seeking damages caused by the November 9, 2000 accident.

Subsequently, Taylor returned to work at Tommie’s. He later claimed that on September 14, 2001, he aggravated his previous work-related injury when he was moving a pool table and pinball machine while in the course and scope of his employment with Tommie’s. At the time of Taylor’s second injury or re-injury, Bridgefield provided workers’ compensation coverage for Tommie’s. Bridgefield paid unspecified medical benefits to Taylor for his injury, but refused to pay disability benefits.

In addition to filing a petition for damages, Taylor filed a disputed claim for compensation with the OWC on January 22, 2002, seeking benefits from Bridgefield based on the aggravation of his prior work-related | «injury. Taylor later amended his claim to add U.S. Specialty as a defendant after it refused to pay any additional workers’ compensation benefits. Both workers’ compensation carriers filed reconventional demands against Taylor for damages, restitution and the forfeiture of his benefits, alleging that he had made fraudulent statements and misrepresentations in violation of LSA-R.S. 23:1208.

State Farm paid insurance proceeds to Taylor for UM/UIM coverage provided by his personal automobile liability insurance policy; however, the proceeds payable under the Lafayette UM/UIM policy and Ve-lasco’s State Farm liability policy were deposited into the registry of the court. Taylor filed a motion for summary judgment, alleging that U.S. Specialty was not entitled to assert a claim against the insurance proceeds payable under the Lafayette UM/UIM policy. On November 5, 2002, the court granted Taylor’s motion for summary judgment, finding that the Lafayette UM/UIM policy specifically excluded the workers’ compensation insurer’s right to reimbursement from the insurance proceeds. U.S. Specialty did not appeal the summary judgment.

Bridgefield filed a petition for intervention in the above-referenced lawsuits, naming Vargas, State Farm, Lafayette and Taylor as defendants. It sought the recovery of workers’ compensation benefits it had paid to Taylor, or may pay in the future, under LSA-R.S. 23:1101. Subsequently, Bridgefield amended its petition to allege that Taylor had committed fraud in violation of LSA-R.S. 23:1208. It asserted a right to attach the proceeds deposited into the registry of the court by both insurance companies and to 14recover damages, including costs, expenses and attorney fees.

In response to Bridgefield’s amended petition, Taylor filed exceptions of vagueness, no right of action and no cause of action. Taylor also filed a motion to withdraw the insurance proceeds from the registry of the court, asserting that Bridge-field was not entitled to receive any of the funds. Thereafter, Taylor filed a motion for summary judgment against Bridge-field. In his motion, Taylor reiterated his previously filed exceptions and sought the dismissal of Bridgefield’s claim to the insurance proceeds deposited in the registry of the court by Lafayette and State Farm. In support of his motion, Taylor attached a certified copy of Lafayette’s insurance policy.

The trial court granted Taylor’s motion for summary judgment and sustained his exceptions of no right of action and no cause of action with regard to the Lafayette UM/UIM policy proceeds, but denied the exceptions with regard to the State Farm liability policy proceeds. The trial court also granted the Taylors’ motion to withdraw the Lafayette UM/UIM policy proceeds in the amount of $25,000 from the registry of the court. Bridgefield now appeals.

DISCUSSION

Our 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. LSA-C.C.P. art. 966(A)(2); Racine v. Moon’s Towing, 01-2837 (La.5/14/02), 817 So.2d 21. Under LSA-C.C.P. art. 966(B), summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and |fiadmissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact, and the mover is entitled to judgment as a matter of law. Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Smith v. Our Lady of the Lake Hospital, Inc., 93-2512 (La.7/5/94), 639 So.2d 730; Singleton v. Booker, 37,198 (La.App.2d Cir.5/14/03), 847 So.2d 107, writ denied, 2003-2030 (La.11/7/03), 857 So.2d 495.

Although the initial burden on a motion for summary judgment remains with the mover to show that no genuine issue of material fact exists, once the mover has made a prima facie showing that the motion should be granted, the burden shifts to the non-moving party to present evidence demonstrating that material factual issues remain. Estate of Levitz v. Broadway, 37,246 (La.App.2d Cir.5/14/03), 847 So.2d 170.

An adverse party may not rest on the mere allegations or denials of his or her pleading, but his or her response, by affidavits or as otherwise provided above, must set forth specific facts showing a genuine issue of material fact. If he or she does not so respond, summary judgment, if appropriate, shall be rendered against him or her. LSA-C.C.P. Art. 967; NAB v. Willamette Industries, Inc., 28,555 (La.App.2d Cir.8/21/96), 679 So.2d 477. 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. Willis v. Medders, 2000-2507 (La. 12/8/00), 775 So.2d 1049. The court must draw those inferences from undisputed facts that are most favorable to the party opposing the motion for summary judgment. Estate of Levitz, supra; Independent Fire Insurance Co. v. Sunbeam Corp., 99-2181, 99-2257 (La.2/24/00), 755 So.2d 226.

A workers’ compensation insurer has a cause of action for reimbursement against third persons legally liable to pay damages to an injured employee, including a UM/ UIM insurer. LSA-R.S. 23:1101(A) and (B). The workers’ compensation insurer must be reimbursed compensation benefits that were actually paid to the injured employee, from any judgment rendered against a third person, in preference to a claim of the injured employee or his dependent. LSA-R.S. 23:1103. Further, if a compromise with such third person is made by the employee, the workers’ compensation insurer shall be liable to the employee for any benefits which are in excess of the full amount paid by such third person only after the insurer receives a dollar for dollar credit against the full amount paid in compromise. LSA-R.S. 23:1102(B) and LSA-R.S.23:1103(A).

However, our Louisiana Supreme Court, relying upon an individual’s freedom to contract and the strong public policy considerations supporting full UM/ UIM recovery, has held that there is no statutory prohibition against an employer contracting with its UM/UIM insurer to exclude workers’ compensation reimbursement. Thus, a UM/UIM policy may validly exclude compensation reimbursement to a workers’ compensation insurer. Travelers Insurance Company v. Joseph, 95-0200 (La.6/30/95), 656 So.2d 1000.

|7In Travelers, the UM insurer filed a motion for summary judgment based on the exclusionary clause of its policy with regard to workers’ compensation reimbursement. The trial court granted summary judgment in favor of the UM insurer. The court of appeal reversed; however, the Supreme Court reinstated the trial court’s summary judgment in favor of the UM insurer. The Supreme Court held:

Although a compensation insurer may seek reimbursement from a UM insurer, a UM insurer may expressly exclude a compensation insurer’s reimbursement in its UM policy under the Civil Code’s freedom to contract on all matters not forbidden by law or public policy.

Travelers Insurance Company v. Joseph, supra at 1005.

In the present case, the exclusionary language contained in the Lafayette policy is identical to the policy exclusion upheld in Travelers Insurance Company, supra. The pertinent policy language reads as follows:

C. EXCLUSION
This insurance does not apply to:
The direct or indirect benefit of any insurer or self-insurer under any workers’ compensation, disability benefits or similar law.

The above exclusion applies equally whether the compensation insurer files suit directly against the UM/UIM carrier, as in Travelers, or whether the compensation insurer intervenes in the employee’s suit against the UM/UIM insurer. Cleaning Specialists, Inc. v. Johnson, 96-2677 (La.App. 4th Cir.5/21/97), 695 So.2d 562, writ denied, 97-1687 (La.10/3/97), 701 So.2d 210. The Louisiana Supreme Court has specifically held that the exclusionary clause was not against public policy. Travelers Insurance Company v. Joseph, supra. Additionally, where the exclusion prohibits any “direct or indirect benefit” to the compensation insurer, it applies to compensation already paid as well as to any future compensation payable by the compensation insurer. Cleaning Specialists, Inc., supra. Therefore, since the Lafayette UM/UIM policy provision expressly excludes reimbursement to a workers’ compensation insurer, then Bridgefield cannot recover against Lafayette for reimbursement of either past or future compensation payments to Taylor. Taylor established that there were no genuine issues of material fact and he was entitled to judgment as a matter of law. Thus, the trial court correctly granted summary judgment in favor of Taylor. This assignment of error lacks merit.

We do not find any reason to create an exception to the above principle that would allow a validly excluded compensation insurer reimbursement or recovery from the UM/UIM policy proceeds because the compensation insurer asserts that the injured worker has committed fraud or made misrepresentations pursuant to LSA-R.S. 23:1208. Regardless of the underlying details of the claim, Bridgefield paid benefits to Taylor under the workers’ compensation law, and therefore, Bridge-field’s claim for reimbursement or recovery of benefits paid is validly precluded under the exclusionary provision of Lafayette’s UM/UIM policy.

Because we have concluded that the trial court correctly granted summary judgment in favor of Taylor based on the UM/ UIM policy exclusion, we need not address Bridgefield’s second, third and fourth assignments of error with regard to the trial court’s sustention of Taylor’s 19exceptions of no cause of action and no right of action. Further, we need not address Bridgefield’s assignment of error, challenging the trial court’s denial of Bridgefield’s motion to attach the proceeds of Lafayette’s UM/ UIM policy or prevent the Taylors from withdrawing the $25,000 policy proceeds from the registry of the court. With regard to Bridgefield’s last assignment of error, challenging the trial court’s issuance of a writ of attachment in favor of U.S. Specialty, because the writ of attachment was issued after the final judgment now on appeal was rendered, the issue is not properly before this Court. URCA Rule 1-3; Smith v. Boothe, 28,065 (La.App.2d Cir.2/28/96), 669 So.2d 682.

CONCLUSION

For the foregoing reasons, the trial court’s grant of summary judgment in favor of Gregory M. Taylor is affirmed. Costs of this appeal are assessed to the appellants, Bridgefield Casualty Insurance Company and Tommie’s Novelty Gaming, LLC.

AFFIRMED.

      . The district court consolidated the lawsuit for reimbursement of workers' compensation benefits and the Taylors' personal injury lawsuit.

      . On April 15, 2003, the OWC rendered an adverse ruling against Taylor and ordered restitution in favor of U.S. Specialty and Bridge-field. On July 3, 2003, the trial court issued a writ of attachment in favor of U.S. Specialty with regard to the Lafayette insurance policy proceeds. Taylor filed an application for supervisory writs on this issue with this Court, which was denied.


author: JjMICHAEL E. KIRBY, Judge.

text:
    LEAKE & ANDERSSON, LLP. v. SIA INSURANCE COMPANY (RISK RETENTION GROUP), LTD.
    No. 2003-CA-1600.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 3, 2004.
    Rehearing Denied April 7, 2004.
    Donald E. McKay, Jr., Leake & Anders-son, LLP, New Orleans, LA, for Plaintiff/Appellee.
    Scott W. McQuaig, W. Chad Stelly, Colette C. Ranatza, McQuaig & Stelly, Me-tairie, LA, for Defendant/Appellant.

      (Court composed of Judge MICHAEL E. KIRBY, Judge TERRI F. LOVE, Judge LEON A. CANNIZZARO JR.).
   JjMICHAEL E. KIRBY, Judge.

This appeal arises out of the granting of a motion for summary judgment that awarded appellee legal fees and costs allegedly owed in connection with appellee’s legal representation of appellant in a separate proceeding. For the reasons assigned, we reverse and remand.

STATEMENT OF FACTS AND PROCEDURAL HISTORY:

Leake & Andersson, L.L.P. (appellee) provided legal representation to SIA Insurance Company (Risk Retention Group), Ltd. (appellant) in a lawsuit entitled Darrell Faia v. Sonny Scaffolds, Inc. and SIA Insurance Company, United States District Court, Eastern District of Louisiana, Civil Action No. 01-1631. On January 3, 2003, appellee filed these proceedings to recover attorney’s fees and costs allegedly owed by appellant in connection with that matter. Appellant filed an answer in the form of a general denial on February 27, 2003. On March 14, 2003, appellee filed a motion for summary judgment.

On April 9, 2003, appellant issued discovery requests to appellee. Appellant had not received the discovery responses as of May 16, 2003 when the trial court heard the motion for summary judgment. Appellant filed a memorandum in | ^opposition to the summary judgment arguing that substantial issues of material fact existed and that the incomplete discovery pertained to those issues.

Notwithstanding appellant’s opposition, the trial court granted appellee’s motion for summary judgment on May 22, 2003. Appellee was awarded $34,030.13 in attorney’s fees and costs as requested, and an additional $2,500.00 attorney’s fees for the prosecution of the instant lawsuit. On July 8, 2003, appellant filed a motion for suspensive appeal. Appellee thereafter filed a motion to dismiss the suspensive appeal as untimely; and, on September 30, 2003, this Court converted the appeal to a devolutive appeal.

ARGUMENT:

Appellant asserts two assignments of error. It first argues that the trial court erred in granting the summary judgment, and second, that the trial court erred in awarding appellee $2,500.00 in attorney’s fees for the prosecution of the instant lawsuit.

Appellant arg-ues that genuine issues of material fact remain as to the accuracy and reasonableness of the fees and costs sought in connection with the prior lawsuit. Specifically, appellant maintains that no invoices or other supporting documentation were provided as to the scope of the legal services, the calculation of the fees billed, the payments made by appellant, the hourly rate charged, the net terms on the billing statements, and the details of what personnel, i.e., attorneys or supporting staff, performed the services. Appellant further submits that these material questions of fact are what prompted the issuance of the discovery requests.

| ^Appellant contends that the only evidence produced in support of the motion for summary judgment was an affidavit, and that the affidavit did not address nor resolve the numerous factual issues. Appellant points out that the affidavit states, merely in a conclusory manner, that the damages sought were “based on time-sheets prepared by attorneys and paralegals on or near the date on which the service is rendered.” Further, appellant argues that the affidavit ambiguously indicates that “in connection with services provided and the cost and expenses advanced,” and that “after crediting all payments made,” the amount due is $34,030.13.

Alternatively, appellant asserts that the trial court granted the motion for summary judgment prematurely. In support of this argument, appellant cites La. C.C.P. art. 966(C)(1), which provides in part that a motion for summary judgment may be considered after “adequate discovery.” Accordingly, appellant contends that any decision on the motion for summary judgment should be deferred until discovery is more complete. Doe v. ABC Corporation, 00-1905 (La.App. 4 Cir. 6/27/01), 790 So.2d 136; Watson v. Otis Elevator Company, 01-0419 (La.App. 4 Cir. 4/17/02), 816 So.2d 931.

DISCUSSION:

The standard of review for a summary judgment is de novo. Jefferson v. Cooper/T. Smith Corp., 02-2136 (La.App. 4 Cir. 10/1/03), 858 So.2d 691.

Generally, a motion for summary judgment may only be granted “[ajfter adequate discovery or after a case is set for trial ...”. La. C.C.P. art. 966(C)(1). Although the language of article 966 does not grant a party the absolute right to delay a decision on a motion for summary judgment until all discovery is complete, the law does require that the parties be given a fair opportunity to |4present their case. Doe, 00-1905 (La.App. 4 Cir. 6/27/01), 790 So.2d 136; Rumore v. Wamstad, 99-557, p. 7 (La.App. 5 Cir. 2/8/00), 751 So.2d 452, 456, citing Simoneaux v. E.I. du Pont de Nemours and Co., Inc., 483 So.2d 908 (La.1986).

In the present case, we find that the information sought by appellant pertains directly to the unresolved factual issue of whether the attorney fees were reasonable. Accordingly, we find the granting of summary judgment to be premature and, likewise, all other assignments of error need not be addressed.

CONCLUSION:

For the foregoing reasons, the judgment of the trial court is reversed and the matter is remanded to the trial court for proceedings consistent with this opinion.

REVERSED AND REMANDED


author: JjCLARENCE E. McMANUS, Judge.

text:
    HIBERNIA NATIONAL BANK, as Trustee of the Blossman Group Trust v. Kenneth KUEBEL.
    No. 03-CA-1131.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 9, 2004.
    Rehearing Denied March 29, 2004.

      W. Ransom Pipes, Janice M. Reeves, Hannah Colvin & Pipes, Baton Rouge, LA, for plaintiff-appellee.

      Henry L. Klein, James H. Daigle, Jr., Klein-Daigle, and Salvador Anzelmo, New Orleans, LA, for defendant-appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., CLARENCE E. McMANUS and WALTER J. ROTHSCHILD.
   JjCLARENCE E. McMANUS, Judge.

At issue in this suit on a promissory note is whether the purchase of shares of stock via a promissory note is an absolute or relative nullity under La. R.S. 12:52 C, voiding the transaction at issue in this case. Defendant appeals the trial court’s judgment ruling that the promissory note giving rise to this suit is enforceable against defendant because although the transaction in this case is a relative nullity, defendant may not invoke any ground to nullify the transaction. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

At the outset, we note that the First Circuit has decided a related case involving a different defendant asserting claims similar to those presented herein. See, Hibernia National Bank, as Trustee of the Blossman Group Trust v. Johnny Smith, 96-1106 (La.App. 1 Cir. 6/20/97), 697 So.2d 1051, writ denied, 97-2382 (La.1/9/98), 705 So.2d 1101.

In July 1984, defendant, Kenneth Kue-bel, was approached by Joe Brocato, a friend of his, who asked him to buy some stock in St. Tammany Corporation, (STC). According to Kuebel, Brocato and another individual named Ronald Case Ladvised Kuebel that, if he executed a note for the shares of stock in STC, the growth dividends would be sufficient to retire the note within several years, and he would not have to put up any money. Brocato also allegedly told Kuebel that there would be a market for the stock such that he could liquidate it whenever he wanted. Kuebel noted that, at the time Brocato approached him he was carrying $17 million in loans, and Brocato promised that the “vault doors would be open” to him if he agreed to participate in this deal.

Later in 1984, defendant subscribed to shares in STC and executed a promissory note in the amount of $468,253.44, bearing 10% interest, payable to STC as payment for shares under the subscription agreement. With the signing of the promissory note, Kuebel also executed a stock pledge agreement, pledging the STC stock as security for repayment of the note.

Brocato and Case approached other investors who likewise executed promissory notes and other documents to purchase shares of stock in STC. Brocato and Case had incorporated STC to serve as a commercial vehicle for the acquisition of First National Corporation (FNC), a bank holding company owned by the Blossman family whose principal asset was First National Bank of St. Tammany Parish. FNC and STC executed a Reorganization and Merger Agreement. The principals of the Blossman Group received the promissory notes and pledge agreements in exchange for their controlling interest in FNC. The notes and pledge agreements were then held in trust by the Blossman Group Trust for the benefit of the principals. The FNC stock held by the Blossmans was cancelled, and FNC stock was then exchanged for the STC stock held by defendant and other STC stockholders.

In 1984 and 1985, Kuebel sold some of his FNC stock and benefited from a stock split. The sale proceeds of $329,999.00 were applied as a payment on the promissory note, thereby reducing his indebtedness to $138,253.44. He also paid | interest on the note for four years, but subsequently defaulted on the note when FNC failed in 1988. FNC’s assets were acquired by Hibernia Bank on November 18, 1988. Hibernia filed this suit on the promissory note against Kuebel as Trustee of the Blossman Group Trust, but the trust later terminated and Richard S. Blossman, as agent of the Blossman Group, was substituted as proper party plaintiff.

Kuebel filed an answer and reconven-tional demand alleging that the note was null and void on various grounds, but principally because it was executed in exchange for STC stock in violation of La. R.S. 12:52 C. He later filed a motion for summary judgment urging that the sale of stock in exchange for a promissory note is void ab initio as being against public policy and express provisions of the law.

The trial court denied the motion and this matter proceeded to a bench trial commencing on April 16, 2002. Following that trial, the court found for the plaintiff and awarded judgment in favor of Hibernia against Kuebel in the amount of $138,253.44 with interest in the amount of $188,366.06 making the total award $326,619.50. The trial court also dismissed Kuebel’s reconventional demand.

In providing its reasons for judgment, the trial court confirmed its reliance on the Smith decision, supra, as the law controlling this case. As in that decision, the trial court in this case found La. R.S. 12:52 C applied and that the transaction at issue, the sale of stock via a promissory note, constituted a relative nullity.

Next, the trial court addressed the issue of whether Mr. Kuebel could invoke any ground for relative nullity under La. R.S. 12:52 C; and, after enunciating several reasons, the trial court concluded that Mr. Kuebel could not avail himself of any ground for relative nullity under La. R.S. 12:52 C.

The trial court also found that the note constituted an unconditional promise to pay by Mr. Kuebel through his action of ratifying the agreement by making four | Syears of payments, selling some of the stock at issue and then using those proceeds to pay down the note. The court further stated even though the note’s endorsement is payable to the Blossman Group, rather than the Blossman Group Trust, that language does not render the unconditional promise to pay a conditional promise to pay. The court relied on La. Code Civ. P. arts. 687-700 and La. R.S. 10:3-106 and 110 in support. Additionally, the court further concluded that the mere fact that the pledge agreement was a separate document from the note did not destroy the note’s status as an unconditional promise to pay. The trial court reasoned that the note amounted to in personam instrument rather than an in rem negotiable instrument even though the instrument refers to the pledge agreement, the security for the loan.

Kuebel moved for a new trial and also filed a motion to dismiss for abandonment. Hibernia filed a motion to assess attorney fees and costs. The trial court denied Kuebel’s motion for new trial and motion to dismiss. The trial court assessed attorney fees against defendant at 20% of $326,619.20 together with interest of 10% per annum as set forth in the note until paid. This appeal followed.

DISCUSSION

We first address the applicability of the First Circuit’s holding in the Smith case to the facts of this case. In Smith, plaintiff, Hibernia, sued defendant, Johnny Smith, to enforce the promissory note Smith executed to purchase initial shares of stock in STC. He pledged the stock to secure payment of the note. The STC stock was essentially converted to FNC stock. The Blossmans received cash and promissory-notes in exchange for the cancellation of their FNC stock. Like defendant Kuebel in this case, Smith paid the interest on his note until the bank closed in 1988 and then defaulted on the loan. After Hibernia filed suit, Smith moved for summary judgment; and the trial court granted summary judgment holding that the note was void ab initio, that is, an absolute nullity. Hibernia | ^appealed; and the First Circuit reversed the trial court, finding that defendant was not entitled to summary judgment as a matter of law and concluding that the trial court committed error in granting summary judgment.

In its analysis, the First Circuit first determined that La. R.S. 12:52 C applied to the promissory note at issue in the ease, rather than La. R.S. 12:52 B. In pertinent part, La. R.S. 12:52 B and C provide:

B. Shares issued (1) in payment of a stock dividend, (2) pursuant to exercise of conversion rights, (3) in exchange for or in respect of, outstanding shares pursuant to a reclassification of stock, or (4) in a merger or consolidation as provided in the merger or consolidation agreement ... shall be considered as fully paid when so issued.
C. The consideration for shares issued otherwise than as stated in subsection B of this section, shall be paid in cash or in corporeal or incorporeal property, or services actually rendered to the corporation, the fair value of which is not less than the dollar amount of the consideration fixed for the shares, before the shares are issued. Upon payment of the consideration fixed therefor, such shares shall be considered as fully paid. Cash consideration for shares may not be paid by the purchaser’s note, secured or unsecured, or uncertified check; and in case of delivery of such a note or check in payment for shares, the shares shall not be issued until the note or check has been paid in full.

The First Circuit reasoned that 12:52 C applied because the focus of the transaction at issue was Smith’s purchase of STC stock via a promissory note and that exchange violated 12:52 C. The court then concluded that the violation of 12:52 C was a relative nullity, not an absolute nullity. In reaching that conclusion, the court referred to articles 2030 and 2031 of the Louisiana Civil Code. Article 2030, which addresses the absolute nullity of contracts, provides:

A contract is absolutely null when it violates a rale of public order, as when the object of a contract is illicit or immoral. A contract that is absolutely null may not be confirmed.
Absolute nullity may be invoked by any person or may be declared by the court on its own initiative.

Article 2031 addresses the relative nullity of contracts and provides:

A contract is relatively null when it violates a rule intended for the protection of private parties, as when a party lacked capacity or did not give |7free consent at the time the contract was made. A contract that is only relatively null may be confirmed.
Relative nullity may be invoked only by those persons for whose interest the ground for nullity was established, and may not be declared by the court on its own initiative.

The Smith court stated that La. R.S. 12:52 C does not specify that a stock purchase on credit is an absolute nullity. Rather, La. R.S. 12:52 C provides a method for confirming the sale: “... the shares shall not be issued until the note or check has been paid in full.” Thus, the court concluded, a transaction in which a note is given for shares of stock is a relative nullity that may only be invoked by those for whose interest the ground for nullity was established; and Johnny Smith was not one of those individuals. Applying the de novo standard of review, the First Circuit reversed the summary judgment because, as a matter of law, defendant, Johnny Smith, was not entitled to summary judgment. As did the trial court in this case, we agree with the First Circuit’s statement of the law in Smith and find that law to be controlling herein.

Having clarified the controlling law, we next note that the applicable standard of review for the trial court’s judgment is manifest error. It is well settled that a court of appeal may not set aside a trial court’s finding of fact in the absence of “manifest error” or unless it is clearly wrong. Touchard v. Slemco Elec. Foundation, 99-3577 (La.10/17/00) 769 So.2d 1200, 1204. When there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Id. Therefore, the issue for the reviewing court is not whether the trier of fact was wrong, but whether the fact-finder’s conclusions were reasonable under the evidence presented. When a factfinder’s determination is based on its decision to credit the testimony of one of |Rtwo or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong. Id. [Citations omitted.]

Kuebel first claims that the trial court erred in concluding that the note at issue was not an absolute nullity and in relying on the Smith decision as authority for that conclusion. He contends that the trial court made certain factual findings unsupported by the evidence in an attempt to render the facts of this case indistinguishable from the facts in Smith. Kuebel now attempts to distinguish himself from the Smith defendant in order to support his argument that the Smith decision is not controlling in this case.

Kuebel points out various differences between the transaction in this case and the Smith transaction. First, unlike Smith, Mr. Kuebel claims that he received no STC stock, no prospectus, no consideration for his promissory note and that he signed no subscription agreement. He states that the stock pledge agreement introduced into evidence at trial indicated that he was issued stock certificate number 258 on March 19,1984, representing 18,939 shares of stock. However, the eventual note he executed was for 19,128 shares of stock. He also argues that key documentation relied upon by the Smith court is totally absent from the record in this case. Thus, Kuebel urges that the cases are not analogous, and that the trial court erred in finding the cases were “incredibly similar.” We disagree with Kuebel’s contentions.

Even though there are some differences between the transactions involving the defendant in the Smith case and defendant Kuebel in this case, after reviewing the record, we conclude that those differences are not significant enough to ignore the well-reasoned precepts set forth by the First Circuit in Smith. Thus, we are unable to conclude that the trial court committed manifest error in reaching its factual finding that Smith and this case are “incredibly similar” or legal error in misapplying to this case the principals of law stated in Smith. Kuebel’s first claim thus lacks merit.

Kuebel next asserts that the trial court erred in finding valid consideration existed for the note enforceable against him as an in personam obligation rather than constituting an in rem obligation. He maintains that he never received delivery of the FNC stock. While Mr. Kuebel may not have received actual corporal possession of the stock at issue, the record simply does not show that Kuebel received nothing of value in this case. He admitted signing the promissory note, executing a stock pledge agreement, selling shares of stock at a profit, applying the proceeds to his principal balance and paying the interest on the note for four years. Additionally, Mr. Kuebel was listed in the bank’s records as the owner of 38,256 shares. The trial testimony of both Manuel Guitterez, attorney for FNC, and Richard Blossman indicates that all investors received a prospectus. Mr. Kuebel’s testimony in this case was inconsistent at best. Mr. Kuebel also disagrees with the trial court’s assessment of him as a “well-lettered” man who understood the benefits and risks associated with this transaction. The record reflects that Mr. Kuebel was carrying a $17 million dollar investment portfolio at the time he agreed to the transaction, that he had enjoyed favorable business dealings with Case and Brocato in the past and that he researched the bank’s stability to his own satisfaction. Accordingly, we defer to the trial court’s findings of fact on these issues. And we agree that the promissory note executed by Mr. Kuebel on July 3, 1984 constituted a valid in personam, negotiable instrument enforceable against Mr. Kuebel.

Mr. Kuebel’s final assertion is that the trial court erred in denying his post-trial motion to dismiss this case on grounds of abandonment. He argues on appeal that this case became abandoned between 1996 and 1999 because plaintiff failed to |intake any action to hasten this matter to judgment. La.Code Civ. P. art. 561 provides in pertinent part that:

A. (1) An action is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of three years, unless it is a succession proceeding....
(2) This provision shall be operative without formal order, but, on ex parte motion of any party or other interested person by affidavit which provides that no step has been taken for a period of three years in the prosecution or defense of the action, the trial court shall enter a formal order of dismissal as of the date of its abandonment. The order shall be served on the plaintiff pursuant to Article 1313 or 1314, and the plaintiff shall have thirty days from date of service to move to set aside the dismissal. However, the trial court may direct that a contradictory hearing be held prior to dismissal.
B. Any formal discovery as authorized by this Code and served on all parties whether or not filed of record, including the taking of a deposition with or without formal notice, shall be deemed to be a step in the prosecution or defense of an action....

The record shows that a supplemental and amended petition was filed in March 1996 and Kuebel answered in May 1996. In March 1999, interrogatories were mailed to Kuebel but were not made part of the record until plaintiff opposed the motion to dismiss in April 2002. In April 1999, Kuebel filed a motion for extension of time to respond to the interrogatories. We thus find no error in the trial court’s denial of the motion to dismiss this case of grounds of abandonment.

For the foregoing reasons, the trial court’s judgment is affirmed.

AFFIRMED.