author: I,JOAN BERNARD ARMSTRONG, Chief Judge.

text:
    Patricia Thompson NOEL v. Rickey Martin NOEL, Sr.
    No. 2004-CA-0105.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 8, 2004.

      Theon A. Wilson, New Orleans, LA, for PlaintiffiAppellant.
    Raul E. Guerra, Jr., Stephen R. Rue & Associates, L.L.C., Kenner, LA, for Defendant/Appellee.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge MICHAEL E. KIRBY and Judge MAX N. TOBIAS JR.).
   I,JOAN BERNARD ARMSTRONG, Chief Judge.

The plaintiff, Patricia Thompson Noel (hereinafter “Patricia”), divorced wife of the defendant, Rickey Martin Noel, Sr. (hereinafter “Rickey”), appeals from the judgment of the trial court holding that Rickey’s interest in the Noel Family Partnership is his separate property and does not form a part of the community of ac-quets and gains formerly existing between the couple and arising out of their seven-year marriage. The remaining community assets were apportioned by joint stipulation of the parties. We affirm.

The parties stipulated that the Noel Family Partnership (“NFP”) was created in 1992; that Rickey is a member of NFP; that Rickey’s mother, Ida Noel (hereinafter “Mrs. Noel, Sr.”) did not execute a written Act of Donation of an NFP interest to Rickey; that Mrs. Noel, Sr. did not file a gift tax return for the taxable year 1992; that the petition for divorce was filed on April 6,1998, terminating the community property regime between Patricia and Rickey; that the amount due to Rickey as his partnership share in NFP for the period 1998 through 2011 is $614,250, pretax; and that the reports of Patricia’s and Rickey’s Certified Public Accountants would be accepted by affidavit. NFP stipulated that it would not | ^distribute the proceeds for the year 2003 that are due to Mr. Noel as a member of NFP but will hold those funds in escrow pending resolution of this litigation.

Notary Public Kristen Shapiro testified that she met Ida and John Noel, Sr. (hereinafter, “Mr. Noel, Sr.”) in the summer of 1992. The senior Noels told Ms. Shapiro that they had purchased a winning lottery ticket and asked Ms. Shapiro to draft a partnership agreement to deal with their $7,000,000 lottery winnings. Ms. Shapiro advised them to consult a Certified Public Accountant. Without objection from any of the parties, the trial judge asked for clarification from Ms. Shapiro:

THE COURT:
Was it clear to you that when Mrs. Ida had come to see you that she had won the ticket?
THE WITNESS:
Yes.
THE COURT:
Did she win the ticket with her husband?
THE WITNESS:
Yes. She and her husband.
THE COURT:
They were the ones who purchased the ticket?
THE WITNESS:
Correct. In fact, she said her husband would go down and buy lottery tickets periodically and this one was a winner.

Patricia testified that between 1992 and the termination of their community in 1998, she and Rickey received proceeds from the lottery winnings with which they paid their house note, paid for their children’s private schooling, purchased | ¡¡Cadillacs, jewelry, furniture and “everything we needed.” She identified the NFP Agreement, an authentic act executed before Ms. Shapiro on July 6, 1992. The preamble to the NFP agreement states that it is “entered into by and between the following individuals” and then names those individuals as John and Ida Noel and their children Elinus P. Noel, Peggy A. Daigle, Jill Lewis, John W. Noel, Jr., Rickey, and Lisa M. Noel, all of whom signed as parties principal to the agreement. Patricia was not named in the agreement and signed only in the capacity of witness.

According to the document, the purpose of the NFP is to collect and distribute all proceeds received from the Louisiana Lottery Commission. All income, gain, loss, deduction, credit and cash distributions are to be allocated equally among the partners in the percentage of 12.5% to each. Mrs. Noel, Sr. was designated as Managing Partner, responsible for collecting and distributing all proceeds, and filling all necessary forms and tax returns. Ms. Lewis was named successor Managing Partner. The agreement contains no recital that the assets of the partnership shall be the separate property of the partners.

Patricia admitted on cross-examination that she was not a partner in NFP and did not supply any skill to or work for NFP.

Mrs. Noel, Sr. testified that she is the mother of Rickey and of five other children. On July 4, 1992, she and her husband won the lottery with a ticket she had filled out and for which she paid. The lottery proceeds were seven million dollars. She testified that when she discovered that she and her husband had won the lottery, they decided to donate a share of it to their children. She did not intend for the spouses of her three, or possibly four, married children to participate in the lottery proceeds. She did not expect anything from Rickey in return for the money.

| ¿Patricia, along with a daughter’s husband and another friend, accompanied Mr. and Mrs. Noel, Sr. and their children to Baton Rouge to confect the partnership agreement. This was done two days after Mrs. Noel, Sr. won the lottery. Mrs. Noel, Sr. testified that she told Ms. Shapiro that she and her husband had just won the lottery and wanted to donate a share of the money to their six children. She and Mr. Noel, Sr. paid Ms. Shapiro for having drawn up and notarized the Partnership Agreement. Neither Patricia nor Rickey contributed anything to the cost of confect-ing the NFP document.

The lottery paid the proceeds to the Partnership, and each month, Mrs. Noel, Sr. receives a check from the lottery office and distributes the proceeds to the NFP members. She testified that Rickey does not do anything in furtherance of NFP. She testified that she and her husband had not discussed forming a partnership before they won the lottery.

On cross-examination, Mrs. Noel, Sr. testified that she could not remember if she had told the Louisiana Lottery that she and Mr. Noel, Sr. were the owners of the lottery proceeds, or whether she told the federal government that she and Mr. Noel, Sr. owned the proceeds, or whether she and Mr. Noel, Sr. paid the tax liability related to the lottery proceeds other than for their respective shares of NFP. On redirect examination, Mrs. Noel, Sr. testified that the purpose of the partnership was to avoid paying tax and to protect the children’s interest in the proceeds in the event of her and her husband’s deaths.

Rickey testified that he did not contribute effort or skill in the creation of NFP or in the purchase of the winning lottery ticket. He corroborated his mother’s testimony that he was not expected to do anything in return for his share of the lottery proceeds. Rickey identified his signature on the Partnership Agreement, but ^denied that he was able to read or write, a disability of which his parents and siblings were aware, and testified that his formal education ended at the seventh grade. He could not recall whether he executed other documents at the time he signed the Partnership Agreement.

Rickey testified that Patricia managed their family’s finances for approximately two years, and denied that the lottery proceeds were spent for the benefit of his family, contending that Patricia spent the money for the benefit of her mother and sisters, paying their house notes and their children’s tuition, and lending them money over his objection. His parents paid his children’s tuition from their share of the lottery proceeds. He did not know if he had any of the lottery proceeds paid since the termination of the community, and referred that question to his mother. Since then, he has supported himself on odd landscaping jobs and the lottery proceeds.

The parties stipulated that Mr. Noel, Sr. would testify that he purchased the winning lottery ticket, and he and his children would testify that when he and Mrs. Noel won the lottery, NFP was formed and the lottery proceeds were placed into NFP with the intention that the proceeds be donated to John and Ida Noel’s children.

K. Justin Gibson, a Certified Public Accountant, testified by affidavit in accordance with the parties’ pre-trial stipulation. Mr. Gibson said that he has been the tax preparer for NFP since 1995, and his file contains NFP’s Partnership Tax Returns from 1992 through 2001. According to Mr. Gibson, NFP was formed on July 6, 1992 for the purpose of receiving Louisiana lottery proceeds for Mrs. Noel, | fiSr. NFP receives an annual installment in the amount of $351,000 from the Louisiana Lottery Corporation, and declares “lotto proceeds” as its principal business activity and principal service. It has never engaged in investment or business activities and acts solely as a pass-through entity for Federal and State Income Tax purposes. It has not distributed proceeds to Rickey since 1998. The present value of the future stream of revenue payments to NFP and, through NFP to each of its partners, is $444,187.04.

The trial court made only one explicit finding of fact' in its judgment, that the lottery proceeds were not acquired through Rickey’s effort, skill or industry, but through the effort, skill and industry of Ida and John Noel. This finding is to be reviewed under the manifest error standard. Hill v. Morehouse Parish Police Jury, 95-1100, p. 4 (La.1/16/96), 666 So.2d 612, 614. Implicit in this finding were several subsidiary findings either necessary to reaching the aforementioned explicitly stated finding or necessarily resulting from that finding. These implicit findings are also subject to the manifest error standard of review. Delaney v. Humana Hosp., 01-0389, p. 8 (La.App. 4 Cir. 10/16/02), 830 So.2d 1072, 1078; Ruby v. Jaeger, 99-1235, p. 4 (La.App. 4 Cir. 3/22/00), 759 So.2d 905, 907.

The -record contains no evidence that Rickey suggested the winning numbers to his parents or participated in the purchase of the tickets. Furthermore, there is no evidence that Rickey, who was illiterate according to his mother’s uncon-tradicted testimony and unable even to prepare a check, has participated in the management of NFP. Therefore, we accept for the purposes of this appeal the finding that the lottery proceeds were not acquired through Rickey’s effort, skill or industry and that they were instead acquired by his parents. Implicit in this finding is the further finding that any interest Rickey acquired, he necessarily acquired 17from his parents and any such acquisition by him was “purely gratuitous” as that term is employed in the donation articles, La. C.C. art. 1467, et seq.

The trial court’s legal conclusions, that Mr. and Mrs. Noel, Sr. donated the proceeds to Rickey via the NFP and that Rickey’s interest in NFP is his separate property are reviewed on appeal de novo.

There is no evidence of record that Rickey contributed efforts or resources to the NFP or to the purchase of the winning ticket. To the contrary, the evidence is uncontroverted that he contributed nothing to the partnership or to purchase of the lottery ticket.

La. C.C. art. 2338 provides that:

The community property comprises: property acquired during the existence of the legal regime through the effort, skill, or industry of either spouse; property acquired with community things or with community and separate things, unless classified as separate property under Article 2341; property donated to the spouses jointly; natural and civil fruits of community property; damages awarded for loss or injury to a thing belonging to the community; and all other property not classified by law as separate property.

La.C.C. art. 2341 defines separate property in pertinent part as follows:

The separate property of a spouse is his exclusively. It comprises: property acquired by a spouse prior to the establishment of a community property regime; property acquired by a spouse with separate things or with separate and community things when the value of the community things is inconsequential in comparison with the value of the separate things used; property acquired by a spouse by inheritance or donation to him individually.... [Emphasis added.]

Rickey argues that the effect of these codal provisions is to make his partnership payments separate, since they were not earned through his effort, skill |sor industry, but were instead acquired by his parents and transferred to him gratuitously.

La. C.C. art. 2339 provides that the natural and civil fruits of the separate property of a spouse, are community property. While La. C.C. art. 2339 allows a spouse to reserve such civil fruits as separate property by a declaration made in an authentic act or in an act under private signature duly acknowledged, such was not done in the instant case. Id. La. C.C. art. 2340 establishes a rebuttable presumption, upon which Patricia relies, that everything of value in the possession of a spouse during the existence of the regime of community is community property. However, the Supreme Court recently held in Talbot v. Talbot, 03-0814, p. 6 (La.12/12/03), 864 So.2d 590, 600, that the Article 2340 presumption of community is rebuttable upon a mere preponderance of the evidence, rejecting all prior jurisprudence requiring a stricter standard of proof.

Whatever interest Rickey may be said to have acquired in the NFP and/or the proceeds of the lottery was acquired gratuitously, which is implicit in the trial court’s finding that it was not acquired through his effort, skill or industry. La. C.C. art. 1523 refers to three kinds of donations:

There are three kinds of donations inter vivos:
The donation purely gratuitous, or that which is made without condition and merely from liberality;
The onerous donation, or that which is burdened with charges imposed on the donee;
The remunerative donation, or that the object of which is to recompense for services rendered.

Clearly, whatever interest Rickey acquired in the NFP and/or the lottery proceeds was acquired “purely gratuitously.” Patricia does not contend that any | acharges were imposed upon him such that the transfer would be characterized as an onerous donation under La. C.C. art. 1524.

Likewise, Patricia does not contend that any interest acquired by Rickey in the NFP and/or the lottery proceeds was acquired by him as recompense for any services rendered by him such that the transfer might be characterized as a remunerative donation under La. C.C. art. 1525.

The essence of one of Patricia’s arguments is that the lottery ticket and the right to receive the proceeds therefrom are among those “incorporeal things, such as rents, credits, rights or actions,” described in La. C.C. art. 1536. La. C.C. art. 1536 requires any donation of incorporeal things, such as the donation to Rickey of an interest in the lottery ticket or the right to the lottery proceeds to be in the form of a notarial act “under the penalty of nullity.” There is no document in this case expressly styled, “Act of Donation.” However, if the donation to Rickey is a nullity it does not result in effectively transferring a one-half interest therein to Patricia as community property. If the transfer to Rickey is a nullity it merely means that his parents were never divested of his share of the lottery proceeds. Accordingly, we are compelled to find that Patricia has no right of action to assert the invalidity as to form of the donation. That is an action that could only be brought by Rickey’s parents, heirs or creditors, depending on the circumstances.

For the same reason, we are compelled to note that it avails Patricia nothing to assert the impropriety of the assignment of the right to the lottery proceeds to |inRickey or to the NFP under La. R.S. 47:9025B(1) as the ineffectiveness of any such assignment could mean only that the interest in the lottery proceeds claimed by Patricia is still vested in Rickey’s parents.

As a result of our foregoing analysis of Patricia’s contention concerning the questions of donation and assignment we have exercised our authority under La. C.C.P. art. 927B to notice on our own motion that Patricia has no right of action to assert the nullity of any donation made to Rickey by his parents and no right of action to assert the nullity of any assignment of lottery proceeds to Rickey and/or the NFP as Patricia can gain nothing from the success of such assertions. Therefore, we need not address the status of either the donation or the assignment. All that we are in a position to do is to find that if Rickey has any interest in the lottery proceeds and/or NFP, then he acquired such interest from his parents gratuitously, and as such the interest would be his separate property under La. C.C. art. 2341.

Patricia also contends in her original brief, in the alternative, that Rickey failed to prove that she was not also a donee of the lottery proceeds:

[E]ven if there were competent evidence of a donation, sufficient evidence was not presented to show the donation was intended to be only [] to Rickey....

Mrs. Noel, Sr. testified that it was her intention to make a donation to her children and this was supported by the stipulation that John and Rickey’s siblings would give the same testimony if called upon to do so. This is corroborated by the fact that Patricia admitted to being present when the NFP document was executed, but she was not named therein. We infer that Patricia seeks to extend the Inpresumption of community to a presumption of donative intent to her, but there is no such presumption to support her position. There is much competent evidence in the record indicating that there was no intention of donating anything to Patricia and none to the contrary other than Patricia’s own testimony. When asked on cross-examination why she was not included as a partner in spite of the fact that she was present when the document was executed, she testified:

Because his mother said it was for her and the kids. They had eight children and they went to an attorney in Baton Rouge and put the mother, the father and the eight children which the mother also included all the married spouses for their families too.

The trial court made the implicit finding that there was no donation to Patricia when it found the property to be Rickey’s separate property. The identity of the donee or donees is controlled or determined by the intention of the donor. Purcell v. Purcell, 29,663, p. 7 (La.App. 2 Cir. 6/23/97), 697 So.2d 728, 733. Resolution of this issue is a factual determination to be made by the trial court. Id., p. 8. Such a resolution will not be disturbed on appeal unless clearly wrong, i.e., manifestly erroneous. Id. As is shown by our analysis of the evidence on this issue derived from our review of the entire record, there is more than ample evidence to support the trial court’s implicit finding based on a manifest error standard of review or even based on a de novo standard of review.

Patricia’s final contention is that even if Rickey’s interest in the NFP had been acquired by him by donation as his separate property, his share of the annual lottery payments accruing after termination of the community constitutes fruits belonging to the community under La. C.C. art. 2339. Patricia’s position as expressed in her original brief is that because Rickey’s “right to receive his share of the lottery annual payments from the partnership became exigible at the moment 112the lottery prize was claimed, all of the payments, including those that may come due after termination of the community, constitute fruits and revenues under La. Civ.Code art. 2339.” We are compelled to disagree because if we follow this reasoning to its conclusion it means that all of the future payments are conflated into a single immediate present right which then must be viewed as the asset itself rather than the community fruits of the asset. We can find no authority in support of this contention.

Accordingly, we find no manifest error in either the express factual findings of the trial court that the lottery proceeds were not acquired through any effort, skill or industry of Rickey’s, but were acquired through the effort, skill and industry of his parents. We find no error in the implicit conclusion that whatever interest Rickey may have acquired, he acquired gratuitously. We further find no error in the trial court’s conclusion that whatever interest Rickey had was his separate property and that Patricia has no community interest in the lottery proceeds and/or NFP.

For the foregoing reasons the judgment of the trial court is affirmed.

AFFIRMED.

      . The record does not contain a report from the Certified Public Accountant acting on Patricia's behalf.

      . The affidavit refers to "Exhibit A — Partnership Tax Returns from 1992-2001, In Globo”; however, this exhibit is not in the record. A copy of Rickey and Patricia's joint return for 1992 is in the record. However, none of the controlling issues in this case would be affected by the presence or absence of the tax returns.

      .The NFP was executed before a notary and two witnesses and could, therefore, arguably be an act of donation in substance although not denominated as such. However, the parties stipulated that no written Act of Donation was executed by Mrs. John Noel, Sr. In any event, we need not resolve this issue as to do so would do nothing to advance Patricia’s case.

      . This Court may take notice of the exception of no right of action on its own motion. La. C.C.P. art. 927B.

      . La.R.S. 47:9025 B(l) provides in pertinent part that: "No prize, nor any portion of a prize, nor any right of any person to a prize awarded shall be assignable.”

      . Emphasis original.


source: Caselaw Access Project

author: It ROLAND L. BELSOME, Judge. |, CANNIZZARO, J.,

license: Public Domain

text:
    BIZCAPITAL BUSINESS & INDUSTRIAL DEVELOPMENT CORP. v. UNION PLANTERS CORP. d/b/a Union Planters Bank, Hibernia National Bank and the Business Bank of Baton Rouge.
    No. 2003-CA-2208.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 8, 2004.
    Richard C. Stanley, Thomas M. Flanagan, Jennifer L. Thornton, Stanley, Flanagan & Reuter, L.L.C., New Orleans, LA, for Plaintiff/Appellant, Bizcapital Business & Industrial Development Corporation.
    James R. Lackie, Kean, Miller, Hawthorne, D’armond, McCowan & Jarman, L.L.P., Baton Rouge, LA, for Defendant/Appellee, Union Planters Bank.
    Christina B. Peck, Roedel, Parsons, Koch, Blache, Balhoff & McCollister, Baton Rouge, LA, for Defendant/Appellee, The Business Bank of Baton Rouge.
    Patrick Johnson, Jr., Brent C. Wyatt, Lemle & Kelleher, L.L.P., New Orleans, LA, for Defendant/Appellee, Hibernia National Bank.
    (Court composed of Judge DAVID S. GORBATY, Judge LEON A. CANNIZZARO JR., Judge ROLAND L. BELSOME).
   It ROLAND L. BELSOME, Judge.

BizCapital Business & Industrial Development Corporation (“BizCapital”), and Hibernia National Bank (“Hibernia”) appeal the judgment of the district court, which granted exceptions of no cause of action, filed by Union Planters Bank (“Union Planters”) and Business Bank of Baton Rouge (“Business Bank”), and dismissed with prejudice the claims of BizCapital and the cross-claims of Hibernia. BizCapital also appeals the district court’s denial of BizCapital’s Motion for New Trial for the single purpose of amending its petition to explicitly state that Union Planters and Business Bank were liable for fraud.

PROCEDURAL HISTORY

On May 12, 2003, the district court issued a Judgment granting the exceptions of no cause of action filed by defendants/appellees, Union Planters and Business Bank, dismissing with prejudice the claims of BizCapital and the cross-claims of Hibernia against Union Planters and Business Bank.

In the district court’s Reasons for Judgment, the court concluded that no cause of action existed because there was no fiduciary relationship between the parties. The court relied on La. R.S. 6:1124 and specifically stated:

La. R.S. 6:1124 provides that no financial institution or its officers or employees shall have a fiduciary obligation to its customers or any | j>third party unless there is a written agreement setting forth the same. There is no agreement by or between those parties; therefore there is no cause of action.

On October 30, 2003, the district court, without assigning reasons, denied BizCapi-tal’s Motion for New Trial for the single purpose of amending its petition to explicitly state that the defendants were liable for fraud.

FACTS

BizCapital initiated this action against Union Planters, Business Bank, and Hibernia to recover damages claimed by BizCapital resulting from a $6 million loan (“Loan”) to Media Direct. Hibernia filed a reconventional demand against BizCapital and cross-claims against Union Planters and Business Bank to recover damages claimed by Hibernia resulting from the Loan. Hibernia incorporated into its Cross-Claims against Union Planters and Business Bank all the allegations set forth in BizCapital’s Petition against Business Bank and Union Planters.

In its First Amended and Restated Petition, BizCapital alleges the following claims for negligent misrepresentation and detrimental reliance against Union Planters and Business Bank:

I. Union Planters had and/or assumed, and then breached a legal duty to deal in good faith with BizCapital, to avoid misrepresenting material facts to BizCapital, and to avoid omitting material facts to BizCapital.
II. Union Planters misrepresented to BizCapital the reason it sought a payoff of the Media Direct loan, and it omitted to tell BizCapital about the $4 million overdraft and the suspiciously high volume of monetary transactions occurring in Media Direct’s account.
III. BizCapital reasonably relied upon Union Planters material misrepresentations.
IV. BizCapital suffered losses as a result.
V. BizCapital relied to its detriment upon the information it received from Union Planters about the Media Direct loan.
VI. Business Bank misrepresented material facts to Hibernia in an agency capacity for BizCapital.
VII. Business Bank knew or should have know that its confirmation of possession of the alleged $2.9 million check would imply to pHibernia that the check would be deposited at the bank and/or wired to another financial institution.
VIII. BizCapital, which learned of the Business Bank’s confirmation of possession of the alleged check through Hibernia, reasonably relied upon that confirmation, and BizCapital suffered damages as a result.
IX. Business Bank knew or should have known of the likelihood that it had mislead Hibernia (and through it, BizCapital), and that Media Direct was using Business Bank to mislead Hibernia and BizCapital.

ANALYSIS

The issues for review by this Court are whether the district court legally erred by granting the exception of no cause of action filed by Union Planters and Business Bank and dismissing with prejudice the claims of BizCapital and the cross-claims of Hibernia and whether the district court further committed error when it denied BizCapital the right to amend its petition to allege fraud specifically.

This Court’s standard of review is de novo. Thus, no deference is due to the district court’s legal conclusions and this Court uses the same test applicable in the district court. This Court stated in Wirthman-Tag Constr. Co. v. Hotard, 00-2298, 00-2299, p. 5 (La.App. 4th Cir.12/19/01), 804 So.2d 856, 860, the following:

The purpose of the exception of no cause of action is to determine the legal sufficiency of the plaintiffs petition. Generally, the exception is tried on the face of the petition and no evidence may be introduced to support or controvert the objection that the petition fails to state a cause of action. La. C.C.P. art. 927(A)(4), 931; Reis v. Fenasci Smith, 93-1785 (La.App. 4 Cir. 4/14/94), 635 So.2d 1319, 1321. However, the exception allows the court to consider evidence that is admitted without objection to enlarge the pleadings. Stephenson v. Nations Credit Financial Services Corp., 98-1688, 98-1689 (La.App. 1 Cir. 9/24/99), 754 So.2d 1011; Sivils v. Mitchell, 96-2528 (La.App. 1 Cir. 11/7/97), 704 So.2d 25.

Appellate review determining the legal sufficiency of the allegations is not restricted to the petition. This Court may evaluate the evidence submitted without objections to the district court. No objections were lodged by any party to the ^deposition transcripts, documentary evidence, and discovery responses found in the record.

The appeal of the district court’s denial of BizCapital’s motion for leave to amend also mandates a de novo standard of review.

The district court relied on La. R.S. 6:1124 when it granted the exceptions of no cause of action filed by Union Planters and Business Bank, dismissing with prejudice the claims of BizCapital and the cross-claims of Hibernia against Union Planters and Business Bank. The statute provides as follows:

No financial institution or officer or employee thereof shall be deemed or implied to be acting as a fiduciary, or have a fiduciary obligation or responsibility to its customers or to third parties other than shareholders of the institution, unless there is a written agency or trust agreement under which the financial institution specifically agrees to act and perform in the capacity of a fiduciary. The fiduciary responsibility and liability of a financial institution or any officer or employee thereof shall be limited solely to performance under such a contract and shall not extend beyond the scope thereof Any claim for breach of a fiduciary responsibility of a financial institution or any officer or employee thereof may only be asserted within one year of the first occurrence thereof This Section is not limited to credit agreements and shall apply to all types of relationships to which a financial institution may be a party.

La. R.S. 6:1124. (emphasis added.)

When interpreting statutes, the Louisiana Supreme Court has specifically stated:

The fundamental question in all cases of statutory construction is legislative intent and the reasons that prompted the Legislature to enact the law. Succession of Boyter, 99-0761 (La.1/7/00), 756 So.2d 1122, 1128. When a law is clear and unambiguous and its application does not lead to absurd consequences, it shall be applied as written, with no further inquiry made in search of the legislative intent. La. Civ. Code Ann. art. 9; La.Rev.Stat. Ann. 1:L
| sFurthermore, “the object of the court in construing a statute is to ascertain the legislative intent and, where a literal interpretation would produce absurd consequences, the letter must give way to the spirit of the law and the statute construed so as to produce a reasonable result.” First Nat’l Bank of Boston v. Beckwith Mach. Co., 94-2065 (La.2/20/95), 650 So.2d 1148, 1153 (quoting Smith v. Flournoy, 238 La. 432, 115 So.2d 809, 814 (1959)).

Sultana Corp. v. Jewlers Mutual Ins. Co., 2003-0360, pp. 3-4 (La.12/3/03), 860 So.2d 1112, 1115-1116.

The legislative history of La. R.S. 6:1124 states:

... [T]he bill concretely states that there is no fiduciary relationship between a bank and its customer just because the customer has an account at the bank or another relationship with the bank. An agreement would be required in order to establish a fiduciary relationship between a financial institution and a customer. This would not eliminate the obligation of good faith and fair dealing under the Civil Code
... [Tjhis bill simply clarifies that a bank has no implied fiduciary duty to its customers absent a specific trust or written agreement. This bill would say that there is no trust relationship or a fiduciary relationship with your customer unless there is a trust agreement to that respect.

Minutes, House Commerce Committee, 1991 Reg. Sess., May 15, 1991, at 12-13; Minutes, June 6,1991, at 3.

After reviewing the minutes of the House Commerce Committee, this Court finds that the legislature did not intend to totally immunize banks from all legal duties in their relationship -with customers and third parties. We find that the trial court’s interpretation of La. R.S. 6:1124 conflicts with the letter and spirit of the law and would produce an unintended and unreasonable result. Applying the Supreme Court’s clarification set forth in Sultana, the letter of the law should not lead to the absurd result that a bank should be rewarded for misleading a customer or third party. Accordingly, we find that Business Bank and Union Planters are not immune from the claims of negligent misrepresentation and detrimental reliance asserted by BizCapital and Hibernia.

| ^Additionally, La.Code Civ. Proc. Art. 934 provides that a trial court shall allow amendment of a petition when the grounds for the exception of no cause of action may be removed. Because we find that La. R.S. 6:1124 does not afford banks blanket immunity in all settings, we also find that the trial court erred in not allowing BizCapital to amend its petition to allege fraud.

CONCLUSION

For the foregoing reasons, the judgment of the district court granting the exceptions of no cause of action filed on behalf of Business Bank and Union Planters is reversed. This matter is remanded for further proceedings.

REVERSED AND REMANDED.

CANNIZZARO, J., CONCURS WITH REASONS.

|, CANNIZZARO, J.,

concurs with reasons.

I am writing separately to point out and emphasize some of the very disturbing allegations in this case. They involve a flagrant breach of the acceptable standards of business conduct by Union Planters Bank and the Business Bank of Baton Rouge.

An overdraft in the amount of approximately four million dollars arose in an account at Union Planters in the name of Teleformation, Inc. doing business as Media Direct. Union Planters had paid checks against uncollected funds in the Media Direct account, and this resulted in the overdraft.

Union Planters entered into a workout agreement with Media Direct so that Media Direct could pay the overdraft. In effect, Union Planters “loaned” Media Direct the amount of the overdraft. Clearly, this was not an ordinary commercial loan.

Because Union Planters did not want to retain its loan relationship with Media Direct, Media Direct contacted various lenders to try to refinance the overdraft loan at Union Planters. One of the lenders Media Direct contacted was BizCapital Business & Industrial Development Corporation. When BizCapital contacted Union Planters regarding the loan from Union Planters to Media Direct, BizCapital was told that the reason Union Planters wanted to move the Media | ^.Direct loan to another lender was that Union Planters no longer handled a certain type of business. BizCapital has alleged that this was an untrue statement. In fact, BizCapital has characterized the loan from Union Planters to Media Direct as an overdraft loan that resulted because of an illegal check-kiting scheme perpetrated by Media Direct.

Ultimately, pursuant to a participation agreement between BizCapital and Hibernia National Bank, a loan was advanced to Media Direct in the amount of $6,000,000, and the overdraft loan Media Direct owed to Union Planters was repaid. Hibernia and BizCapital each owned a fifty percent interest in the loan to Media Direct.

As a condition to the lenders making the loan, Media Direct was required to collect an account receivable owed to it in the approximate amount of $2,900,000. Immediately prior to their making the loan to Media Direct, an officer at Business Bank confirmed to Hibernia and BizCapital by telephone that he had in hand a check in the amount of $2, 900,000.00 that ostensibly represented the payment on the account receivable. This confirmation was made immediately prior to the funding of the loan to Media Direct by Hibernia and BizCapital.

Based on the assurances from Business Bank that the account receivable had been paid, Hibernia and BizCapital funded the loan to Media Direct, the proceeds of which were used to pay Media Direct’s overdraft at Union Planters. Business Bank now contends that it has no record of ever receiving the $2,900,000 check, and it cannot explain its officer’s statement that he had the check in hand when he confirmed the receipt of the check to Hibernia and BizCapital.

Media Direct defaulted on its loan from BizCapital and Hibernia. As a result BizCapital and Hibernia have lost a substantial amount of money. Union Planters and Business Bank now seek to avoid responsibility for their involvement in the | Josses suffered by BizCapital and Hibernia by claiming immunity from accountability under the terms of La. R.S. 6:1124.

Union Planters and Business Bank have mistakenly relied on that statute to avoid responsibility for losses incurred because of their misconduct. La. R.S. 6:1124 provides that there are no implied fiduciary obligations on the part of a financial institution unless there is a written agreement under which the institution specifically agrees to act as a fiduciary. Because neither Union Planters nor Business Bank was a party to a written agreement with Hibernia Bank or BizCapital, Union Planters and Business Bank have argued that they are immune from liability to BizCapi-tal and Hibernia.

The majority has concluded that La. R.S. 6:1124 does not apply in the instant case, and I concur. I do not think that deliberate misrepresentations designed to benefit one party at the expense of another come within the purview of La. R.S. 6:1124. Therefore, I concur in the result reached by the majority.


author: J^LEON A. CANNIZZARO, JR., Judge.

text:
    STATE of Louisiana v. Melvin M. CAMBRICE, III.
    Nos. 2004-KA-0827, 2004-KA-0828.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 8, 2004.

      Eddie J. Jordan, Jr., District Attorney, Battle Bell, IV, Assistant District Attorney, New Orleans, LA, for Appellee, State of Louisiana.
    Christopher A. Aberle, Louisiana Appellate Project, Mandeville, LA, for Defendant/Appellant, Melvin M. Cambrice, III.
    (Court composed of Judge MICHAEL E. KIRBY, Judge EDWIN A. LOMBARD, Judge LEON A. CANNIZZARO, JR.).
   J^LEON A. CANNIZZARO, JR., Judge.

The defendant, Melvin M. Cambrice, III, pled guilty to attempted possession of a firearm by a convicted felon and to possession of stolen property valued at more than $500.00. Mr. Cambrice, however, reserved his right under State v. Crosby, 338 So.2d 584 (La.1976), to appeal the adverse rulings of the trial court on his motions to suppress the evidence against him. Mr. Cambrice is now appealing those rulings.

STATEMENT OF THE CASE

Mr. Cambrice was charged in a bill of information with one count of violating La. R.S. 14:95.1, which prohibits a person who has been convicted of certain felonies from possessing a firearm. In a separate bill of information in another case, Mr. Cambrice was charged with the illegal possession of stolen things in violation of La. R.S. 14:69.

| j>At an arraignment Mr. Cambrice entered a not guilty plea on both of the charges against him. Pretrial motions were heard jointly on both charges, and the motions to suppress the evidence against Mr. Cambrice were denied.

On the day that Mr. Cambrice appeared for trial, the state amended the bill of information charging him with possession of a firearm by a convicted felon to charge him with the attempted crime instead. Mr. Cambrice then pled guilty to the attempted possession of a firearm by a convicted felon. In the other case against him, he withdrew his prior plea of not guilty and pled guilty to possession of stolen things valued at more than $500. Both of Mr. Cambrice’s guilty pleas were conditioned upon his right to seek review of the rulings on his motions to suppress the evidence against him.

In the case where Mr. Cambrice pled guilty to the attempted possession of a firearm by a convicted felon, he was sentenced by the trial court to serve three years at hard labor without the benefit of probation, parole, or suspension of sentence. In the case where Mr. Cambrice pled guilty to possession of stolen things worth more than $500, he was sentenced to serve three years at hard labor. The court ordered that the sentences run concurrently with each other and that Mr. Cambrice be given full credit for time served.

After the appeals in both cases were lodged, Mr. Cambrice moved to have the cases consolidated. This Court consolidated the cases.

| ¡¡STATEMENT OF FACTS

Mr. Cambrice was asleep on a bench at the Canal Street ferry landing in New Orleans at 7:00 a.m. one morning. New Orleans Police Department (“NOPD”) Officer Patrick Baxter was patrolling the area in response to citizen complaints involving public intoxication and gambling at the ferry landing. He observed Mr. Cam-brice sleeping on the bench using a blue duffel bag as a pillow. At the hearing on Mr. Cambrice’s motions to suppress the evidence against him, Officer Baxter testified that he woke Mr. Cambrice and spoke to him. Officer Baxter further testified that Mr. Cambrice “smelled strongly of alcohol and had slurred speech.” Based on these facts, Officer Baxter arrested Mr. Cambrice for public intoxication, a municipal offense.

After he arrested Mr. Cambrice, Officer Baxter inventoried the contents of the duffel bag that Mr. Cambrice had been using as a pillow. Inside the bag Officer Baxter found a handgun, a digital camera, a radar detector, a zoom lens, and other camera equipment on top of some clothing. Mr. Cambrice was then placed under arrest by Officer Baxter for illegally carrying a weapon.

At the suppression hearing Officer Baxter testified on cross-examination that he did not observe any evidence of gambling, such as cards or dice, and that he did not observe any alcoholic beverages in Mr. Cambrice’s possession. He further testified that he probably startled Mr. Cam-brice when he woke him and agreed that |4it is not uncommon for a person to be groggy upon being awakened. Finally, Officer Baxter testified that he did not conduct a field sobriety test to determine whether Mr. Cambrice was intoxicated.

NOPD Officer Fred Moore assisted Officer Baxter with Mr. Cambrice’s arrest. Officer Moore testified that he was present when Officer Baxter first approached Mr. Cambrice, and Officer Moore’s description of the events that took place in connection with Mr. Cambrice’s arrest essentially matched that of Officer Baxter. Officer Moore, however, remembered that Mr. Cambrice was sleeping on the ferry landing rather than on a bench. Officer Moore also testified that he could smell alcohol on Mr. Cambrice’s breath.

Officer Moore further testified that on the same day that Mr. Cambrice had been arrested for the illegal weapon charge, he later investigated an automobile burglary at the Wyndham Hotel on Canal Street in New Orleans. When the victim of the burglary described the property that had been stolen from the automobile, Officer Moore immediately recognized that some of the items found in Mr. Cambrice’s duffel bag were the items described by the victim. Mr. Cambrice was then charged with the possession of the stolen things.

ERRORS PATENT

A review of the record does not reveal any errors patent.

ASSIGNMENT OF ERROR

The police did not have probable cause to arrest Mr. Cambrice for public intoxication. Therefore, they did not have the right to search his duffel bag.

|RMr. Cambrice’s sole assignment of error in this case is that the search of his duffel bag was illegal, because there was no probable cause for his arrest. If we find Mr. Cambrice to have been arrested without probable cause, then the search of his duffel bag was unlawful, and the evidence seized from the bag should have been suppressed by the trial court.

Investigatory Stop

The first issue to consider in the instant case is whether the officers who stopped Mr. Cambrice had reasonable suspicion to conduct an investigatory stop. In Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the United States Supreme Court first recognized that “a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest.” 392 U.S. at 22, 88 S.Ct. at 1880. According to the Terry case, such an investigatory stop is not an unlawful “seizure” and, therefore, does not violate the prohibition against unreasonable searches and seizures established by the Fourth Amendment to the United States Constitution.

In Louisiana there is statutory authorization for investigatory stops on less than the probable cause required for an arrest. La. C.Cr.P. art. 215.1(A) provides that “[a] law enforcement officer may stop a person in a public place whom he reasonably suspects is committing, has committed, or is about to commit an offense and may demand of him his name, address, and an explanation of his actions.”

In State v. Dank, 99-0390 (La.App. 4 Cir. 5/24/2000), 764 So.2d 148, this Court explained the factors a reviewing court must consider in determining whether an investigatory stop was permissible. This Court stated:

| ¡¡“Reasonable suspicion” to stop is something less than the probable cause required for an arrest, and the reviewing court must look to the facts and circumstances of each case.... Evidence derived from an unreasonable stop, i.e., seizure, will be excluded from trial. In assessing the reasonableness of an investigatory stop .... [t]he totality of the circumstances must be considered in determining whether reasonable suspicion exists.

99-0390, pp. 4-5; 764 So.2d at 155 (citations omitted).

In the instant case, the police officers saw Mr. Cambriee sleeping on public property in an area where there had been complaints from citizens that public intoxication and gambling were creating public disturbances. Section 54-412 of the Code of the City of New Orleans provides in paragraph (a) that “[i]t shall be unlawful for any person to commit the crime of unauthorized public habitation.” Paragraph(b)(l) of section 54^412 defines “unauthorized public habitation” to include “[t]he unauthorized sleeping by any person on a street, sidewalk, neutral ground, alleyway, park or other public property in this city.” Paragraph (c) of section 54-412 provides, however, that “[n]o person shall be arrested ... or be charged with a violation of this section, unless such person continues an activity prohibited by this section after a law enforcement officer has informed him or her that such continued conduct is in violation of a city ordinance.”

The police officers in this case were justified in approaching Mr. Cambriee, who was sleeping on public property, to inform him that he was violating a city ordinance. It was also for Mr. Cambrice’s own safety that the police officers woke him to determine whether he was unconscious or simply asleep. Once they approached Mr. Cambriee and awakened him, they noticed that his breath smelled of alcohol and that his speech was slurred.

|7Based on the circumstances, i.e., that Mr. Cambrice’s breath smelled strongly of alcohol and that his speech was slurred, Officer Baxter concluded that Mr. Cam-brice was intoxicated. Officer Baxter then arrested Mr. Cambriee for public intoxication in violation of Section 54^405 of the Code of the City of New Orleans, which provides that it is unlawful for a person to appear in public manifestly under the influence of alcohol to the degree that he may endanger himself or others.

Mr. Cambriee argues that he should not have been arrested for public intoxication, because he presented no danger to himself or others. The issue is not whether he, in fact, presented a danger to himself or others. The issue is the degree of his intoxication. Because Mr. Cambriee was obviously intoxicated to a degree that he might present a danger to himself or others, his conduct fell within that proscribed by section 54-405 Code of the City of New Orleans. It was sufficient for the police officers to have reasonably believed, based on the totality of the circumstances and their prior experience, that Mr. Cam-brice was intoxicated to such a degree that he might endanger himself or others.

Clearly, Mr. Cambriee was in close proximity to the Mississippi River where he could have stumbled and fallen into the water. There was no one with him to assist him while he was intoxicated so that he did not inadvertently place himself in harm’s way. Finally, he could have been a danger to tourists and others who frequented the ferry landing if he accosted them because of his lack of inhibition due to his intoxication. We find that Officer Baxter had probable cause to arrest Mr. Cambrice for public intoxication.

Mr. Cambrice relies on the case of State v. Smiley, 99-0065 (La.App. 4 Cir.3/3/99), 729 So.2d 743. We do not find the Smiley case dispositive in the instant Rcase. In the Smiley case the defendant was arrested “to keep him from entering his truck and driving while intoxicated.” 99-0065, p. 4, 729 So.2d at 746. He was, however, accompanied by two companions who could have driven the truck, and there was no indication that he would disturb or alarm the public.

In the instant case Mr. Cambrice was alone with no one to assist him while he was intoxicated. Additionally, Mr. Cam-brice was likely to alarm or disturb the public. The defendant in the Smiley case was arrested as he was leaving the bar where he had been drinking, but Mr. Cam-brice was sleeping on public property. An intoxicated man who is alone in the early morning in an area frequented by tourists as well as the local citizens is much more likely to disturb the public than is an intoxicated man leaving a bar in the company of others who are able to control his actions. The public has an expectation that a person leaving a bar might be inebriated, but the public does not have that same expectation with respect to a person at a ferry landing.

Warrantless Seizure

Both the United States and the Louisiana constitutions prohibit unreasonable searches and seizures, and a warrant is normally required for a search to be conducted. U.S. Const. amend. XIV; La. Const. art. 1, § 5. In State v. Thompson, 2002-0333 (La.4/9/03), 842 So.2d 330, the Louisiana Supreme Court discussed the subject of warrantless searches and seizures as follows:

It is well settled that a search and seizure conducted without a warrant issued on probable cause is per se unreasonable unless the warrantless seizure and search can be justified by one of the narrowly drawn exceptions to the warrant requirement.

Id., p. 6, 842 So.2d at 335.

In State v. Thomas, 310 So.2d 517 (La.1975), the, Louisiana Supreme Court discussed one of the narrow exceptions to the warrant requirement. The Supreme Court stated as follows:

A search of the person of one arrested for a crime may be made at the. time of the arrest, and also of immediately adjacent space within his immediate control, in order to remove any weapons as well as to secure any evidence of the crime within his immediate possession. Such a search incident to an arrest is a recognized exception to the requirement for a search warrant.

310 So.2d at 521 (citations omitted). See also Chimel v.California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), in which the United States Supreme Court sanctioned a warrantless search incident to an arrest by stating that “[tjhere is ample justification, therefore, for a se’arch of the arresteé’s person and the area ‘within his immediate control’ — construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.” 395 U.S. at 763, 89 S.Ct. at 2040.

In the instant case we have determined that the arrest of Mr. Cambrice was valid. Therefore, under the exception to the search warrant requirement discussed in the Thomas case and the.Chimel case, Officer Baxter was authorized to inventory the contents of Mr. Cambrice’s duffel bag without a warrant. The bag was located in an area in Mr. Cambrice’s immediate control. The search, in fact, revealed that Mr. Cambrice was concealing a weapon in the bag. He had access to this weapon and had Officer Baxter been unable to search the bag, because he did not have a search warrant, the weapon could easily have been used to harm Officer Baxter and Officer Moore.

|inWe find that Officer Baxter legally searched the duffel bag Mr. Cambrice had with him. The trial court properly found that the evidence obtained from the bag was admissible into evidence.

CONCLUSION

We find that the trial court did not err in refusing to suppress the evidence against Mr. Cambrice. Mr. Cambrice’s guilty pleas and his sentences are hereby affirmed.

AFFIRMED.

      . In the Crosby case the Louisiana Supreme Court held that "we have determined that we are not barred from reviewing the assignments of error specifically reserved at the time of the plea of guilty, where the trial court accepted the plea of guilty so conditioned (which the court had discretion to refuse, if proffered upon such reservation.)” 338 So.2d at 588.

      . Section 54-405 of the Code of the City of New Orleans provides as follows:
      It is unlawful for any person to appear in a public place manifestly under the influence of alcohol, narcotics or other drugs, not therapeutically administered, to the degree that he may endanger himself or other persons or property.


author: [JAMES F. McKAY III, Judge. hTOBIAS, J.,

text:
    Gene ALONZO, Malcolm Alonzo, Richard J. Assevedo, Jr., George Barisich, Joseph Barisich, Dale Borden, Harry D. Borden, Donnie Campo, William Caywood, Pero Cibilic, Clear Water Oyster Inc., Joseh Collins, Ramo Domingo, Anthony Esteves, Jr., et al. v. STATE of Louisiana and the DEPARTMENT OF NATURAL RESOURCES.
    No. 2002-CA-0527.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 8, 2004.

      Glenn E. Diaz, Carlos Zelaya, David C. Vidrine, Danial C. Vidrine, and J. Wayne Mumphrey, Chalmette, LA, for Plaintiff/Appellee.
    Richard P. Ieyoub, Attorney General State of Louisiana, Andrew C. Wilson, Jedd S. Malish, Special Assistant Attorneys General State of Louisiana, Burke & Mayer, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge JAMES F. McKAY III, Judge MAX N. TOBIAS JR., Judge EDWIN A. LOMBARD).
   [JAMES F. McKAY III, Judge.

The defendant in this class action suit, the State of Louisiana, through the Department of Natural Resources (DNR), appeals the trial court’s granting of the motion for summary judgment filed by the plaintiffs, Gene Alonzo and fifty-two other oyster leaseholders. We reverse and remand.

FACTS AND PROCEDURAL HISTORY

In 1965, the United States Congress passed a Flood Control Act which authorized construction of freshwater diversion structures at Caernarvon and other loea-tions. In 1983, for the benefit of the oyster industry, the Louisiana Department of Wildlife and Fisheries (LDWF) published a report setting forth optimal salinity regimes for oyster production on State seed grounds which presented refined, targeted salinity regimes, including salinity regimes for Breton Sound Basin. In 1984, the United States Army Corps of Engineers prepared an environmental impact statement suggesting locations of target salinity concentrations or isohalines at three areas along the southeast Louisiana coast to enhance fisheries and to combat coastal erosion. To create these new regimes, the environmental impact 12statement proposed the construction of three freshwater diversion structures for three areas: (1) Bonnet Carre for the Lake Pontchartrain basin; (2) Davis Pond for the Barataría basin; and (3) Caernarvon for the Breton Sound area. The Caernarvon project was designed for the dual purposes of enhancing oyster production and coastal restoration; target salinities for accomplishing these purposes were set in Breton Sound at five parts per thousand (ppt) for an area near the structure and fifteen ppt for an area further offshore away from the structure.

From the late 1970’s to the early 1990’s, there were clear indications that there would be adverse affects on oyster leases located in areas that had been historically fresh prior to 1960. In the spring of 1991, before the Caernarvon structure became operational, significant mortality occurred in the Breton Sound area as a result of a “freshet”, a period of significant freshwater intrusion from both the overflowing Mississippi River and other point sources around Breton Sound. By August of 1991, mortality levels had reached 75% to 100% of many of the oyster beds within private oyster leases throughout the Breton Sound estuary. At the time the oyster mortality had occurred or had been detected in July and early August 1991, Caernarvon had still not become operational. For the rest of 1991, the structure would only be operated at minimal flows due to the existing oyster mortality, which obviated the need to introduce any more freshwater, except in the immediate vicinity of the structure for coastal restoration purposes.

|sOn March 29, 1994, a group of oyster fishermen filed the Avenal class action in the 25th Judicial District Court for the Parish of Plaquemines on behalf of all oyster fishermen in Breton Sound who claimed that their leases were adversely affected by Caernarvon. On April 26, 1994, these same plaintiffs filed suit in the United States Court of Federal Claims against the United States, i.e., the Army Corps of Engineers (the Corps), which designed, financed and built the Caernarvon structure, alleging a “taking” or inverse condemnation under the Fifth Amendment of the United States Constitution. The Corps moved for summary judgment on several grounds. On August 2, 1995, the Court of Federal Claims granted summary judgment concluding that the plaintiffs had no compensable expectancy in the continued artificially elevated salinity levels in historically freshwater marsh areas in Breton Sound. On November 12, 1996, the U.S. Court of Appeals for the Federal Circuit affirmed the lower court’s judgment, but on different grounds, holding that these same oyster lessees could not have had reasonable investment-backed expectations that their oyster leases would give them rights protected from the planned freshwater diversions of the state and federal governments. Thereafter, in the proceedings in state court, the DNR filed an exception of no cause of action based upon the result in the federal Ave-nal litigation. The DNR also filed a motion for summary judgment based upon the same evidence as was presented in the parallel federal litigation. Both the exception and the motion for summary judgment were denied as were writs taken to this Court. The DNR filed | ¿another motion for summary judgment based upon the doctrine of collateral estoppel, which was also denied. This Court affirmed on rehearing, ruling that collateral estoppel is not applicable in Louisiana.

On December 7, 2000, the state court action proceeded to a jury trial. On December 15, 2000, the jury returned a verdict in favor of the plaintiffs awarding four of the five representative plaintiffs, Kenneth A. Fox, Fox Oyster Company, Clarence Duplessis and Nick Skansi, a uniform award of $21,345.00 for every single acre of their oyster leases. In addition, the jury awarded lead plaintiff, Albert Avenal, $1,000.00 per acre for a limited number of his leases. The combined award to these plaintiffs was $48,275,935.00. On January 10, 2001, the trial court extrapolated these awards class-wide to all “similarly situated” oyster leaseholders anywhere within the class area of Breton Sound. Consequently, the trial court’s extrapolation constructively extended the award of $21,345.00 per acre to every single oyster leaseholder class member within the class area of Breton Sound. This Court affirmed. Avenal v. State, 2001-0843, (La. App. 4 Cir. 10/15/03), 858 So.2d 697, writ granted, 2003-3521 (La.1/30/04), 864 So.2d 638. This matter is currently before the Supreme Court.

On May 2, 1996 in the 34th Judicial District Court for the Parish of St. Bernard, fifty-three (53) oyster leaseholders filed suit in the instant case against the DNR for alleged damages to oyster leases on State water bottoms in the Breton | RSound area located east of the Mississippi River and west of the Mississippi River Gulf outlet (MRGO) in St. Bernard Parish. The plaintiffs also alleged that their oyster leases located in the Lake Borgne area east of MRGO in St. Bernard Parish were damaged. The plaintiffs contend that the damage occurred as a result of the freshwater outfall from one or more of the Mississippi River freshwater diversion structures. The plaintiffs’ claims were based upon state law tort theories including negligence and strict liability, as well as deprivation of constitutional and property rights under the Louisiana and federal constitutions. On December 17, 1996, the plaintiffs amended their petition to name LDWF as a party-defendant, alleging that LDWF conspired with DNR to include provisions in the renewal oyster lease forms that essentially exculpate the State and its agencies from any and all liability arising out of damages caused to the plaintiffs’ oyster leases as a result of coastal restoration projects; the plaintiffs claimed that the inclusion of this exculpatory language in the renewal oyster lease forms constituted a violation of the plaintiffs’ constitutional rights and a taking of a constitutionally protected property right.

On August 16, 1996, the trial court in Avenal certified the class, with geographic boundaries of the impact area of the structure. This area encompassed many, but not all, of the Alonzo litigant leases. The leases in Breton Sound were within the defined class boundaries set by the Avenal court; the areas east of MRGO, including Lake Borgne, were excluded. The Avenal plaintiffs then disseminated- the notice of class action in accordance with court approval, advising all potential class members that they would be included in the class action unless pthey -opted out of the class action by January 15, 1997. The plaintiffs in the instant case, having already filed suit in St. Bernard Parish, subsequently completed and returned then-opt-out forms prior to the January 15,1997 cutoff date.

The LDWF filed an exception of improper venue which was denied by the trial court on January 3, 1997. The LDWF filed an application for supervisory writs which was granted by this Court on January 14, 1997. This Court remanded, directing the trial court to either determine whether to dismiss the petition or transfer the matter to East Baton Rouge Parish. Thereupon, the plaintiffs voluntarily dismissed the LDWF from the litigation but did not eliminate all of the allegations involving the LDWF from the proceedings. The DNR then moved to have the case dismissed or transferred on the basis of this Court’s ruling. The trial court denied the DNR’s motion on July 24, 2001. The DNR applied to this Court for a supervisory writ, which was also denied.

Trial of this matter was originally set for November of 1998. However, in September of 1998, by joint motion of the parties, the trial date was continued due to the fact that discovery was still in its early stages; the trial was continued without date. An October 8, 2001 trial date was eventually set for a “first flight” of plaintiffs. These plaintiffs included individuals with leases located only in Breton Sound, individuals and corporations with leases in both Breton Sound and Lake Borgne, and individuals and corporations with leases located only in Lake Borgne. The majority of the lease acreage at issue in the first flight was located in Breton |7Sound. There were problems with discovery, which lead the DNR to file a motion to continue. The trial court granted the motion and the jury trial was reset for January 22, 2002. However, on December 17, 2001, the plaintiffs filed a second supplemental and amended petition, characterizing their claims as admiralty and maritime in nature, thereby eliminating the DNR’s right to a jury trial. The plaintiffs also moved for partial summary judgment at that time on the theory of res judicata seeking a finding of liability and damages against the DNR for their leases in Breton Sound based upon the judgment in the Avenal class action. The trial court granted the motion for partial summary judgment related to res judicata on January 11, 2002, which resulted in a total award of $291,828,840.00, or $21,345.00 per acre. It is from this judgment that the DNR now appeals.

DISCUSSION

On appeal, the defendant raises the following assignments of error: 1) the trial court erred in applying the doctrine of res judicata, as the requisite elements were not present and the ruling allowed the plaintiffs to completely avoid their burden of proof; 2) the application of res judicata was error since the plaintiffs had exercised their legal right to timely opt-out of the class, on which the court’s decision was based, and were therefore not entitled to obtain the benefit of any rulings in that class action since there was no “identity of parties”; and 3) the trial court erred by essentially applying offensive collateral es-toppel, a concept not recognized under Louisiana law.

|RIn defining res judicata, La. R.S. 13:4231 provides the following:

Except as otherwise provided by law, a valid and final judgment is conclusive between the same parties, except on appeal or other direct review, to the following extent:
(1) If the judgment is in favor of the plaintiff, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and merged in the judgment.
(2) If the judgment is in favor of the defendant, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and the judgment bars a subsequent action on those causes of action.
(3) A judgment in favor of either the plaintiff or the defendant is conclusive, in any subsequent action between them, with respect to any issue actually litigated and determined if its determination was essential to that judgment.

The doctrine of res judicata is stricti juris and any doubts concerning the application of this principle must be resolved against its application. Kelty v. Brumfield, 93-1142 (La.2/25/94), 633 So.2d 1210. Res judicata cannot be invoked unless all its essential elements are present and each necessary element has been established beyond all question. Berrigan v. Deutsch, Kerrigan & Stiles, LLP, 2001-0612 (La.App. 4 Cir. 1/2/02), 806 So.2d 163. Under Louisiana law, res judicata does not apply where there is no identity of parties. State in Interest of Robinson, 517 So.2d 477 (La.App. 1 Cir.1987). Without an identity between the parties in the first action and the parties in the second action, the law of res judicata does not apply under La. R.S. 13:4231. Tranchina v. State, 99-1332 (La.App. 4 Cir. 6/9/99), 740 So.2d 713. The same rationale applies in class action situations. Hudson v. City of Bossier, 33,620 (La.App. 2 Cir. 2/25/00), 766 So.2d 738. In Ford v. Murphy Oil, 96-2913, 96-2917, 96-2929 (La.9/9/97), 703 So.2d 542, the Louisiana Supreme Court discussed the purpose and intent of a class action procedure with regard to res judicata:

|flThe class action is a non-traditional litigation procedure permitting a representative with typical claims to sue or defend on behalf of, and stand in judgment for, a class of similarly situated persons when the question is one of common or general interests to persons so numerous as to make it impracticable to bring them all before the Court. The purpose and intent of class action procedure is to adjudicate and obtain res judi-cata effect on all common issues applicable not only to the representatives who bring the action, but to all others who are “similarly situated”, provided they are given adequate notice of the pending class action and do not exercise the option of exclusion from the class action.

In the instant case, there is no identity of parties with the Avenal case. Although, we have the samé defendants in both cases, the plaintiffs in the respective cases are not the same. For there to be an identity of parties, the parties in each suit must be identical. That is not the situation we are presented with here. Furthermore, all of the plaintiffs in the instant case completed and returned their opt-out forms in the Avenal class action before the January 15, 1997 cutoff date. Accordingly, the doctrine of res judicata does not apply and the trial court erred in applying it.

With regards to collateral estoppel, it is imperative that we restate that Louisiana law does not recognize this doctrine. See Steptoe v. Lallie Kemp Hospital, 634 So.2d 331, 335 (La.1994); Welch v. Crown Zellerbach Corp., 359 So.2d 154, 156 (La.1978). In Welch, the Supreme Court rejected all forms of the doctrine, stating: Collateral estoppel is a doctrine of issue preclusion alien to Louisiana law. Developed in the common law, the device precluded the re-litigation of issues actually decided in a prior suit between the parties on a different cause of action; as such, even if collateral estoppel existed in Louisiana law, it would be inapplicable by its own terms. This Court expressly recognized this concept in Avenal v. State, 99-0127 (La.App. 4 Cir 3/3/99), 757 So.2d 1 (opinion on rehearing 3/15/00), 757 So.2d at 12, writ denied, 00-1077 (La. 6/23/00), 767 So.2d 41, cert. denied sub nom. Louisiana Dep’t of Natural Resources v. Avenal, 531 U.S. 1012, 121 S.Ct. 568, 148 L.Ed.2d 486 (11/27/00).

CONCLUSION

For the foregoing reasons, the trial court’s granting of a partial summary judgment based on res judicata is reversed and this matter is remanded to the trial court for further proceedings.

REVERSED AND REMANDED.

TOBIAS, J., concurs and assigns reasons.

hTOBIAS, J.,

concurring.

I respectfully concur.

I agree with the majority that the motion for summary judgment granted in favor of the plaintiffs must be reversed for the reasons assigned by the majority. However, I respectfully disagree with the majority’s statement that Louisiana law does not recognize the doctrine of collateral estoppel, citing Steptoe v. Lallie Kemp Hospital, 93-1359 (La.3/21/94), 634 So.2d 331; Welch v. Crown Zellerbach Corp., 359 So.2d 154 (La.1978); and Avenal v. State, 99-0127 (La.App. 4 Cir. 3/3/99), 757 So.2d 1.Rather, as the Louisiana Supreme Court held in Welch, supra at 157, our civil law terminology differs from that of the common law, resulting in the limited application of the doctrine of collateral estoppel in Louisiana. Specifically, Louisiana does in fact recognize a limited version of collateral estoppel.

In this appeal, the state assigns three errors. Those errors deal only with the issue of whether the trial court erred in granting the plaintiffs’ motion for summary judgment. Nevertheless, I note that I still adhere to my dissent in Avenal v. State, Dept. of Natural Resources, 2001-0843 (La.App. 4 Cir. 10/15/03), 858 So.2d 697, 709, writ granted 2003-3521 (La.1/30/04), 864 So.2d 638.

      . These zones were based upon the fact that below 5 ppt oysters can become stressed and die while above 15 ppt oysters can be subject to predation and disease. This optimal salinity regime targeting annual average isohalines in concentrations of between 5 ppt and 15 ppt allowed oyster propagation and cultivation to continue in an existing zone within Breton Sound while at the same time, fostered coastal restoration by freshening the upper Breton Sound basin and allowing plant life to return in an area where little, if any, active oyster production was occurring.

      . 33 Fed.Ct. at 790.

      . Avenal v. United States, 100 F.3d 933, 937 (Fed.Cir.1996).

      . Avenal v. State, 99-0127 (La.App. 4 Cir. 3/3/99), 757 So.2d 1 (opinion on rehearing 3/15/00), 757 So.2d 1, 12, writ denied, 00-1077 (La.6/23/00), 767 So.2d 41, cert. denied ing nom. Louisiana Dep’t of Natuaral Resources v. Avenal, 531 U.S. 1012, 121 S.Ct. 568, 148 L.Ed.2d 486 (11/27/00).

      .The difference in awards may have been due to the fact that Albert Avenal purchased some of his leases on the same day he filed suit.

      . 97-C-0067.

      . 2001-C-1670.

      . This issue is addressed in opinion No.2003CA-0553.


author: I MAMES F. McKAY III, Judge. | TOBIAS, J.,

text:
    Gene ALONZO, Malcolm Assevedo, Richard J. Assevedo, Jr., George Barisich, Joseph Barisich, Dale Borden, Harry D. Borden, Donnie Campo, William Caywood, Pero Cibilic, Clear Water Oyster Inc., Joseph Collins, Ramo Domingo, et al. v. STATE of Louisiana and the DEPARTMENT OF NATURAL RESOURCES.
    No. 2003-CA-0553.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 8, 2004.

      Glenn E. Diaz, Carlos Zelaya, David C. Vidrine, Chalmette, LA, and Danial C. Vidrine, Baton Rouge, LA, and J. Wayne Mumphrey, Law Offices of J. Wayne Mumphrey, Chalmette, LA, for Plaintiffs/Appelles.
    Richard P. Ieyoub, Attorney General State of Louisiana, Andrew C. Wilson, Jedd S. Malish, Special Assistant Attorney General State of Louisiana, Burke & Mayer, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge JAMES F. McKAY III, Judge MAX N. TOBIAS JR., Judge EDWIN A. LOMBARD).
   I MAMES F. McKAY III, Judge.

On May 2, 1996, fifty-three (53) oyster leaseholders with oyster leases on State water bottoms on the St. Bernard side of Breton Sound, and within Lake Borgne east of the Mississippi River Gulf Outlet (MRGO) filed suit against the State through the Department of Natural Resources (DNR), alleging adverse effects including oyster mortality, not only from the Caernarvon freshwater diversion structure, but also from the Violet siphon.

On January 11, 2002, the trial court heard seven motions in this case and later issued seven judgments, all of which were adverse to the DNR. The first of these was a partial summary judgment, which awarded $291,828,840.00 to plaintiffs with oyster leases located in the Breton Sound area east of the Mississippi River and west of MRGO in St. Bernard Parish; this judgment relied on Avenal v. State, 2001-0843, (La.App. 4 Cir. 10/15/03), 858 So.2d 697, writ granted, 2003-3521 (La.1/30/04), 864 So.2d 638, having res judicata effect in the | ^instant case. The second judgment struck DNR’s right to a jury trial on the grounds that the plaintiffs’ claims were “admiralty and maritime” in nature. The third judgment, issued on January 22, 2002, denied the DNR’s motion to continue. A fourth judgment denied the DNR’s motion for summary judgment and peremptory exception based upon prescription. The three other rulings included the denial of the State’s motion for summary judgment seeking contractual indemnity, as well as a motion for summary judgment based upon collateral estoppel and takings theories, and a motion to enlarge or amend the State’s answer to the plaintiffs’ amended petition. The State sought to have these certified as final judgments for purposes of an immediate appeal. This relief was initially denied, but later the trial court designated the res judicata judgment as final, sua sponte. The plaintiffs’ remaining claims related to oyster leases in Lake Borgne and other outlying areas remained set for trial on January 20, 2002. For ease of administration, the remaining claims would be tried in two groups or “flights” of plaintiffs to be determined by the plaintiffs. The “first flight” would take place on January 20, 2002. The “second flight” trial would take place at a later date.

Prior to the trial of the “first flight,” the State discovered a memorandum from March 17, 1989, which had been prepared by Judge Manuel Fernandez, the presiding trial court judge, while he was an attorney working in the Governor’s Office; this document had directed the Louisiana Department of Wildlife and Fisheries (LDWF) to place an indemnity clause in the LDWF lease form in favor |3of the State. On the basis of this document, the State filed a motion to recuse Judge Fernandez. Judge Fernandez referred this motion to the Clerk of Court who randomly allotted the motion to Judge Robert A. Buckley. Judge BueWey ruled that the motion was untimely because it was filed after the first partial judgment on the res judicata issue. On review, this Court ruled that one memorandum, standing alone, was not sufficient basis for recusal.

The “first flight” trial proceeded on January 24, 2002. After the evidence was presented, the trial court took the matter under advisement and on February 21, 2002, the trial court issued a partial judgment in favor of the 20 “first flight” plaintiffs in the amount of $226,528,221.00 plus interest, costs and attorney’s fees. This judgment awarded each plaintiff a uniform $8,441.00 per acre and a separate figure for loss of production based upon a uniform production rate, using the formula of the plaintiffs’ expert, Ed Cake, regardless of the plaintiffs’ actual production. Shortly thereafter, the DNR filed a motion to have this partial judgment designated as final so that the DNR could seek an immediate appeal; this motion was denied in open court.

Prior to the commencement of the “second flight” trial, the State became aware that Judge Fernandez previously had an attorney-client relationship with Ed Robin, one of the plaintiffs in this case. The State also learned of the existence of another memorandum; this memorandum from the LDWF Secretary replied to Judge Fernandez’s earlier memorandum and indicated that the LDWF had ^implemented his instruction to insert the indemnity clause into the LDWF lease form. Thereafter, on March 15, 2002, the State filed a second motion to recuse Judge Fernandez. Judge Fernandez referred this motion to Judge Wayne Cre-sap, the duty judge on that day. Judge Cresap heard and denied the motion on March 21, 2002. On writs, this Court reversed because Judge Fernandez referred the motion directly to Judge Cresap rather than allowing it to be randomly allotted as required by La. C.C.P. art. 155(B). However, trial of the “second flight” also proceeded on March 21, 2002 and was completed within just a few days with the trial court taking the matter under advisement. On remand, the second motion to recuse was randomly allotted to Judge Buckley who on August 14, 2002 denied the motion as untimely because it was filed after two judgments, i.e., the first partial judgment and the motion for partial summary judgment on res judicata, and the second partial judgment related to the “first flight” plaintiffs. In response to Judge Buckley’s ruling, the DNR filed two separate writ applications. This Court remanded the motion to recuse for a second time to the district court for a hearing within 10 days of the order, which Judge Buckley set for October 29, 2002. Judge BucMey denied the motion to recuse on December 23, 2002.

On January 27, 2003, the DNR presented the trial court with a motion and order for appeal of the judgment related to the “first flight” of plaintiffs as well as the judgment related to the “second flight” of plaintiffs. The DNR also sought to have the trial court acknowledge the State’s statutory exemption from the filing of any bond. The trial court crossed out any right to appeal the judgment of February |fi21, 2002 related to the “first flight” of plaintiffs, the right to appeal any collateral or related rulings, and the State’s statutory exemption from filing the necessary bond. Thereupon, the State filed an application for a writ of mandamus to force the trial court to issue the appeal order for the judgment of February 21, 2002 on the “first flight” of plaintiffs and rescind the implied requirement that the State furnish a bond; the State also filed an application for supervisory writs and writs of review on the trial court’s denial of the motion to recuse. This Court granted most of the relief requested but the motion to recuse was deferred to the merits of the appeal.

On appeal, the defendant’s raise the following assignments of error: 1) the trial court committed clear and manifest error finding any causative link between the Caernarvon freshwater diversion structure and any allegedly adverse effects to oyster leases in Lake Borgne, and also erred as a matter of law in the standard of proof for causation; 2) the trial court erred as a matter of law in failing to recognize that the plaintiffs had no legal right to recover from the State for the cost of restoring the State’s own water bottoms; 3) the trial court erred as a matter of law in allowing the plaintiffs to recover sums well in excess of the fair market value of the plaintiffs’ oyster leases; 4) the trial court erred as a matter of law in identifying this matter as an “admiralty and maritime” claim when this matter had absolutely nothing to do with the maritime industry; 5) the trial court erred as a matter of law in refusing to recognize that the plaintiffs’ claims are time barred under three | ^potentially applicable prescriptive periods as well as the equitable doctrine of laches, even if the latter were applicable; 6) the trial court erred as a matter of law in refusing to recognize that the State should have been indemnified and held harmless by the plaintiffs for any claims made in this litigation; 7) the trial court erred as a matter of law in refusing to allow the State a jury trial; 8) the trial court erred as a matter of law in refusing to recognize the State’s reasonable use of the police power in inserting the indemnity clause in the subject oyster leases, requiring the State to be indemnified as a matter of law, and in pursuing coastal restoration as a priority for the good of the State; 9) the trial judge should have recused himself or been recused due to his roles as lawyer in the cause, fact witness, and former lawyer for the lead plaintiff, as well as due to bias, if not the totality of circumstances which suggest an appearance of impropriety; and 10) the trial court abused its discretion in its discovery and evidentiary rulings related to plaintiffs’ production of critical documents, the admissibility of expert testimony, and the admissibility of Dau-bert/Foret evidence.

Assignment of Error No. 9

The grounds for recusation of a judge are set forth in Louisiana Code of Civil Procedure article 151. Article 151 states:

A.A judge of any court, trial or appellate, shall be recused when he is a witness in the cause.
B. A judge of any court, trial or appellate, may be recused when he:
(1) Has been employed or consulted as an attorney in the cause, or has been associated with an attorney during the latter’s employment in the cause;
(2) At the time of the hearing of any contested issue in the cause, has continued to employ, to represent him personally, |7the attorney actually handling the cause (not just a member of that attorney’s firm), and in this case the employment shall be disclosed to each party in the cause;
(3) Has performed a judicial act in the cause in another court;
(4) Is the spouse of a party, or of an attorney employed in the cause; or is related to a party, or to the spouse of a party, within the fourth degree; or is related to an attorney employed in the cause; or to the spouse of an attorney, within the second degree; or
(5) Is biased, prejudiced, or interested in the cause or its outcome or biased or prejudiced toward or against the parties or the parties’ attorneys to such an extent that he would be unable to conduct fair and impartial proceedings.
C. In any cause in which the state, or a political subdivision thereof, or a religious body or corporation is interested, the fact that the judge is a citizen of the state or a resident of the political subdivision, or pays taxes thereto, or is a member of the religious body or corporation, is not a ground for recusation.

The list of grounds for recusal is exclusive, not illustrative, and there must be a statutory ground for recusing a judge. Pierce v. Charity Hosp., 550 So.2d 211, 215 (La.App. 4 Cir.1989). A mere appearance of impropriety, not statutorily listed in LSA-C.C.P. art. 151, cannot be a basis for recusal. Id. See also Chauvin v. Sisters of Mercy Health System, St. Louis, Inc., 2001-1834 (La.App. 4 Cir. 5/8/02), 818 So.2d 833, writ denied, 2002-1587 (La.9/30/02), 825 So.2d 1194. In the instant case, the State seeks to have Judge Fernandez recused for two reasons: 1) he formerly represented one of the plaintiffs in an unrelated case; and 2) while he was an attorney working in the Governor’s Office he authored a memorandum which directed the LDWF to place an indemnity clause in favor of the State into the LDWF lease form. That a judge has previously represented a party in an unrelated matter is not one of the grounds for recusation enumerated in LSA-C.C.P. art. 151. Therefore, the fact that Judge Fernandez previously represented Ed Robin in another case is no grounds for Judge Fernandez’s recusal. With regards to Judge Fernandez’s actions while working as an attorney in the ^Governor’s Office, it must be noted that he never played any role in the instant cause. In fact, the memorandum complained of by the defendants was drafted more than fifteen years before suit in the instant case was even filed. This action by Judge Fernandez back in 1989 cannot be viewed as his having been employed or consulted as an attorney in the cause. Accordingly, there are no grounds for Judge Fernandez’s re-cusal.

Assignments of Error No. 4 and No. 7

A cause of action falls within admiralty or maritime jurisdiction exercised jointly by the federal and state courts pursuant to 28 U.S.C. § 1333 if the activity which is the subject of the claim occurred in navigable waters and had a significant relationship to a traditional maritime activity. Executive Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 249, 93 S.Ct. 493, 34 L.Ed.2d 454 (1972). The United States Fifth Circuit Court of Appeals established a four prong test for determining whether there is a significant relationship to a traditional maritime activity: (1) the functions and roles of the parties; (2) the types of vehicles and instrumentalities involved; (3) the causation and type of injury; and (4) traditional concepts of the role of admiralty law. Kelly v. Smith, 485 F.2d 520 (5th Cir.1973). The United States Supreme Court has held that the initial inquiry is whether the activity has a potentially disruptive effect on maritime commerce. Sisson v. Ruby, 497 U.S. 358, 110 S.Ct. 2892, 111 L.Ed.2d 292 (1990). The potential disruptive effect is to be determined by examining the general character of the activity, not the particular facts of the incident or the actual effect on maritime commerce. Id. Furthermore, for a tort to be maritime in nature, it must bear a significant relationship to | traditional maritime activity. Foremost Insurance Company v. Richardson, 457 U.S. 668, 102 S.Ct. 2654, 73 L.Ed.2d 300 (1982).

In the instant case, the damage to the plaintiffs’ oyster leases was allegedly caused by a land based freshwater diversion structure, operated in accordance with an operational plan and implemented on land. The Caernarvon project was designed for the dual purposes of enhancing oyster production and coastal restoration. Neither of these purposes appears to have a significant relationship to a traditional maritime activity. In fact, oyster bed claims have traditionally been classified as non-maritime activities, giving the states total authority over the cultivation and regulation of their submerged lands. Fox v. Southern Scrap Export Co., Ltd., 606 So.2d 46, 48 (La.App. 4 Cir.1992). Furthermore, where maritime commerce is not implicated, and where exercise of admiralty jurisdiction could unnecessarily intrude upon state regulation of matters traditionally committed to local resolution, admiralty jurisdiction does not apply. Pace v. Chevron, U.S.A., Inc., 579 So.2d 494, 495 (La.App. 4 Cir.1991). This is such a case. Accordingly, the trial court erred in identifying this matter as an admiralty and maritime claim when the matter had absolutely nothing to do with the maritime industry.

Because the trial court erred in identifying this matter as an admiralty and maritime claim, the trial court also erred in refusing to allow the State a jury trial. Louisiana Revised Statute 13:5105 specifically allows the State a right to a jury trial. As such, this matter should be remanded for a jury trial.

Assignments of Error No. 1, No. 2, No. 3, No. 5, No. 6, No. 8, and No. 10

Due to our findings regarding assignments of error numbers four and seven, these assignments of error are now moot.

|inDECREE

On the issue of Judge Fernadez’s recu-sal, we affirm the judgment of the courts below. However, in all other respects the judgment of the trial court is vacated. Furthermore, this matter is remanded for a jury trial.

AFFIRMED IN PART; JUDGMENT VACATED AND CASE REMANDED

| TOBIAS, J.,

concurs in part, dissents in part, and assigns reasons.

I respectfully concur in part and dissent in part.

I agree with the majority that the state’s assignments of error numbers 1, 3, 6, 8 and 10 are presently moot based upon the majority’s decision.

I agree, for the reasons assigned by the majority, that the present case is neither an admiralty nor maritime claim. Therefore the trial court erred in denying the state a jury trial pursuant to La. R.S. 13:5105.

I respectively dissent from majority’s conclusion that the Honorable Manuel A. “Manny” Fernandez should not have been recused as the trial judge.

I have examined our prior denials of the applications for supervisory writ in numbers 2002-C-0198 and 2002-C-0545, which also address the failure of the trial court to recuse Judge Fernandez; our order in supervisory writ number 2002-C-0684 requiring the random reallotment of the second motion to recuse; and our writ |2grant in supervisory writ number 2002-C-1977 c/w 2002-C-1978, ordering the trial judge to hold a hearing and determine the motion to recuse on evidence. The denials (in numbers 2002-C-0198 and 2002-C-0545) were based upon the state’s failure to provide documentation, such as a copy of a relevant pleading, a transcript, or proof that documents attached to the application were introduced and/or produced to the trial court for its consideration. Therefore, the denials do not constitute the law of the case and are without res judicata effect.

I am very reluctant to recuse a judge. Nevertheless, a court has a duty to assure that any judgment rendered is not subject to question because of the actual or perceived partiality of the trier of fact. In this case I find that the following actions, among others, call into question Judge Fernandez’s impartiality, establish bias, and require the trial judge’s recusal:

(a) the trial judge’s knowledge of and association with the drafting of the indemnity and liability clause contained in the water bottom leases at issue in the case and the reasonable possibility and probability that he might be required to give testimony on the issue;
(b) the failure of the trial judge to disclose to all parties his association with (representation of) one of the parties to the suit;
(c) the referral of the motion to recuse to the known duty judge of the trial court when La. C.C.P. arts. 155 and 253.1 require the random allotment of the motion to recuse among other members of the court;
(d) the issuance by the trial judge of a per curiam explaining why he did not believe he should be recused without being requested to do so by another judge or court, thus becoming an advocate; and
|3(e) the dictates of Canons 2, 3A, and 3C of the Code of Judicial Conduct. See also In re Cooks, 96-1447 (La.5/20/97), 694 So.2d 892, and In re Lemoine, 96-2116 (La.4/4/97), 692 So.2d 358, relating to censure of a judge who fails to disclose his or her relationship with counsel in a case.

The totality of the foregoing, although the mere appearance of impropriety alone is insufficient to warrant a recusal, demonstrates to me that the majority errs.

I respectfully dissent from the failure of the majority to address the assignments respecting whether the plaintiffs had a legal right to recover from the state the cost of restoring the state’s own water bottoms.

The Louisiana Supreme Court has specifically held that an oyster leaseholder has no right to recover the cost of restoring the state’s own water bottoms. Inabnet v. Exxon Corp., 93-0681, p. 20 n. 15 (La.9/6/94), 642 So.2d 1243, 1255-56; see also Avenal v. State, Dept. of Natural Resources, 2001-0843 (La.App. 4 Cir. 10/15/03), 858 So.2d 697, 709 (Tobias, J., dissenting), writ granted, 2003-3521 (La.1/30/04), 864 So.2d 638.

Finally, I respectfully dissent from the majority’s failure to address whether the plaintiffs’ claims are prescribed. As this same panel of judges finds as fact in another appeal of this same case (number 2002-CA-0527), the plaintiffs’ damages manifested themselves before the Caernar-von became operational in the summer of 1991. I have explained in detail in my dissent in Avenal, supra, that the state did not by operating the Caernarvon appropriate or inversely condemn the plaintiffs’ leaseholds; they are thereby precluded from asserting a three-year prescriptive period under La. R.S. 13:5111. The plaintiffs’ claims are mere claims for damages, having a two-year prescriptive period under La. R.S. 9:5624. The | ¿plaintiffs’ present suit was filed more than two years after the Caernarvon began operating. Their claims are untimely, even assuming that these plaintiffs might have at one point been class members in Avenal before they opted out of the class prior to 15 January 1997. Accordingly, I find that we should hold in the present case that the plaintiffs’ claims are time barred and dismiss their suit, thereby terminating this litigation.

      . For a more detailed history of the Caernar-von freshwater diversion structure and the facts giving rise to the present litigation, see Avenal v. State, 99-0127 (La.App. 4 Cir. 3/3/99), 757 So.2d 1 (opinion on rehearing 3/15/00), 757 So.2d 1, 12 writ denied, 00-1077 (La.6/23/00), 767 So.2d 41, Cert. denied sub nom. Louisiana Dep’t of Natural Resources v. Avenal, 531 U.S. 1012, 121 S.Ct. 568, 148 L.Ed.2d 486 (11/27/00) and Alonzo v.State, No.2002-CA-0527, 2004 WL 2112146, 884 So.2d 634.

      . The appeal of this judgment is the subject of 2003-CA-0527.

      . 2002-C-0198

      . 2003-C-0188 c/w 2003-C-0209

      . These five assignments of error deal, respectively, with the "causative link between the Caernarvon freshwater diversion structure and any allegedly adverse effects to oyster leases in Lake Borgne”; the fair market value of the plaintiffs' oyster leases as determined by the trial court; the failure of the trial court to recognize the indemnification and hold harmless clauses in the plaintiffs’ leases with the state; the state’s use of the police power by inserting the indemnity clauses in the leases and pursuing coastal restoration; and discovery and evidentiary rulings.

      . These are the state's assignments of error number 4 and 7.

      . Once a judge determines that a motion to recuse is properly referred to another judge for decision, it is the duty of the lawyers in the case and to a lesser extent the judge to whom the case is referred, not the duty of the judge sought to be recused, to establish the facts and defenses to the recusal. See Canon 2B of the Code of Judicial Conduct, which states that: "A judge shall not initiate the communication of information in any court or disciplinary proceeding, but may provide such information for the record in response to a formal request by a court or disciplinary agency official.”

      . "A judge should disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned and shall disqualify himself or herself in a proceeding in which disqualification is required by law or applicable Supreme Court rule.”