author: laCARTER, C.J. hCIACCIO, J.,

text:
    Robert G. CLAITOR, Sr., doing business as Marina Del Ray v. Michael DELAHOUSSAYE.
    No. 2002 CA 1632.
    Court of Appeal of Louisiana, First Circuit.
    May 28, 2003.
    Writ Denied Oct. 17, 2003.

      Richard Aguilar, Edward L. Fenasei, New Orleans, for Plaintiff-Appellee, Robert G. Claitor, Sr. d/b/a Marina Del Ray.
    Michael G. Gaffney, New Orleans, for Defendant-Appellant, Michael Delahous-saye.
    Before: CARTER, C.J., WHIPPLE, and CIACCIO, JJ.

      . Hon. Philip C. Ciaccio, retired, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

   laCARTER, C.J.

Defendant, Michael Delahoussaye, appeals from a judgment of the trial court finding him liable for damages and attorney’s fees under a commercial lease agreement executed on September 17, 1994, by defendant as lessee and plaintiff, Robert G. Claitor, Sr. d/b/a Marina Del Ray, as lessor. We amend the judgment, and as amended, we affirm.

Pursuant to the terms of the lease agreement, plaintiff leased space to defendant for the operation of a restaurani/bar. The lease term was for three years (commencing October 1, 1994 and ending September 30, 1997), with either party having the option to cancel the lease at the end of the first year after a sixty-day written notice. An addendum to the lease contained an option for defendant to renew the lease for two additional three-year terms. Defendant personally signed the lease as the lessee without any designation of a business or corporate name. However, on September 22, 1994, defendant changed one line in the lease agreement to reflect that his newly formed corporation, My Three Daughters, Inc. (MTD, Inc.), was the lessee. Defendant remained personally designated as the lessee in all other areas of the lease agreement, including the signature lines.

On July 5, 1995, plaintiff issued the sixty-day written notice of his intent to cancel the lease at the end of the first year. Upon receipt of the notice, defendant notified plaintiff that he had no intention of vacating the leased premises and that he wished to exercise his option to renew the lease. As a result, plaintiff filed a petition for declaratory judgment seeking a declaration that he had properly terminated the lease as of September 30, 1995. A trial regarding the effectiveness of the lease termination was not held until March 31, 1999, after which the ease was taken under advisement. Meanwhile, defendant remained in possession of the leased premises until April 12, 1999. A declaratory judgment was finally rendered declaring that plaintiff had effectively ^terminated the lease as of September 30, 1995, and that defendant’s right to possess and occupy the leased premises had ceased at that time. After a long delay, the trial court signed a final declaratory judgment on March 16, 2000.

Before the final declaratory judgment was rendered, plaintiff filed the instant suit in a separate proceeding on November 2, 1999, for triple rent damages during the lease hold-over period, damages to the leased premises, and attorney’s fees as provided in the lease. Defendant filed a peremptory exception raising the objection of res judicata. After a trial on September 20, 2001, the trial court issued extensive written reasons, denied defendant’s exception of res judicata, rendered judgment on the merits in favor of plaintiff, awarded damages in the amount of $141,060.00 (representing $1,250.00 for damages to the leased premises and triple the $1,650.00 monthly rent stipulated in the lease for the 42-month hold-over period, with a credit for the rent paid by defendant during that period), and awarded attorney’s fees in the amount of $63,190.55, plus costs, and interest. Defendant appeals from the trial court judgment, urging eight assignments of error and a peremptory exception raising the objection of prescription.

PRESCRIPTION

Defendant filed a peremptory exception raising the objection of prescription for the first time on appeal. A plea of prescription may be filed in the court of appeal any time prior to final judgment, but cannot be maintained unless the record discloses that the plea is well founded. Robin E. Owens & Associates, Inc. v. Booth, 98-0613, pp. 4-5 (La.App. 4 Cir. 2/24/99), 729 So.2d 41096, 1099, writ denied, 745 So.2d 26 (La.6/18/99). Defendant argues that plaintiffs claim for damages filed on November 2, 1999, was filed four years after the lease was effectively terminated on September 30, 1995, and was therefore filed after the three-year prescriptive period for rent arrearages provided in LSA-C.C. art. 3494(2). Plaintiff contends that his first lawsuit for declaratory judgment interrupted the prescriptive period that did not begin to run again until the date of the final declaratory judgment rendered on March 16, 2000. We agree with plaintiff and conclude that the instant suit was filed while the prescriptive period was interrupted, and before the final declaratory judgment was rendered. See LSA-C.C. art. 3468; Ledoux v. City of Baton Rouge/Parish of East Baton Rouge, 99-2061, p. 5 (La.2/29/00), 755 So.2d 877, 879-880.

Louisiana Civil Code art. 3495 addresses the commencement and accrual of the three-year prescriptive period. It provides that:

This prescription commences to run from the day the payment is exigible. It accrues as to past due payments even if there is a continuation of labor, supplies, or other services. (Emphasis added.)

Comment (b) to LSA-C.C. art. 3495 states, in pertinent part:

On principle, liberative prescription commences to run from the day a cause of action arises and its judicial enforcement is possible.

Applying article 3495 to the facts of this case, we conclude that plaintiffs claim for triple rent damages during the hold-over period had not yet prescribed when he filed this lawsuit on November 2, 1999. Prescription on plaintiffs claim did not commence to run until March 16, 2000, the date of the final declaratory judgment finding that plaintiff had effectively terminated the lease and that defendant’s right to occupy the leased premises had ceased as of September 30,1995. The date of the final declaratory judgment is the date that plaintiffs claim became exigible. It is on that date, when the lease was finally declared to have been effectively terminated, that plaintiffs cause of action arose for the stipulated hold-over rent, damages and attorney’s fees as provided in the lease. See Montiville v. City of Westwego, 592 So.2d 390, 391 (La.1992). Plaintiff actually filed his claim for triple rent, damages and attorney’s fees before the final | Bdeclaratory judgment was rendered. Thus, we conclude that plaintiffs suit was timely filed. Defendant’s peremptory exception raising the objection of prescription is hereby denied.

RES JUDICATA

In his first and seventh assignments of error, defendant contends that the trial court erred in allowing plaintiff to assert his claim for damages and attorney’s fees in a separate proceeding after the case had previously been decided in the first lawsuit. Defendant argues that both lawsuits involved the same transaction (i.e., the lease agreement), the same parties, and the same damages and attorney’s fees claims. Defendant further argues that both lawsuits could have been litigated in the first proceeding. This court previously addressed the issue of whether a party to an action for declaratory judgment could seek supplementary relief pursuant to LSA-C.C.P. art. 1878 after the declaratory judgment rendered in the initial case was final. See State, Louisiana Riverboat Gaming Commission v. Louisiana State Police Riverboat Gaming Enforcement Division, 97-0167, pp. 3-4 (La.App. 1 Cir. 6/20/97), 696 So.2d 645, 647, writ denied, 97-1932 (La.11/7/97), 703 So.2d 1269. Where a declaratory judgment has been sought and rendered, as here, LSA-C.C.P. art. 1878 allows the court to grant further relief based upon that judgment whenever “necessary or proper.” That relief is sought by means of filing a new petition, as plaintiff did in this instance.

Louisiana Code of Civil Procedure articles 1871, et seq. govern declaratory judgments, and provide that courts may declare rights, status, and other legal relations, whether or not further relief is or could be claimed. LSA-C.C.P. art. 1871. Plaintiffs petition for damages was based upon the finding by declaratory judgment that the lease had been effectively terminated and that the defendant was therefore required to vacate the leased premises as of the date of | ^termination. The fact that the declaratory judgment did not address damages or attorney’s fees issues does not bar plaintiffs subsequent action for damages and attorney’s fees. LSA-C.C.P. art. 1878; State, Louisiana Riverboat Gaming Commission, 696 So.2d at 647. We conclude that the trial court did not err in denying defendant’s peremptory exception raising the objection of res judicata. Defendant’s position is without merit. Plaintiff had a cause of action for damages and attorney’s fees even though he earlier sought a declaratory judgment and even though his damages were sustained before the declaratory judgment became final. See Blaise Parking and Enterprises Corporation v. Project Square 221, 409 So.2d 691, 696 (La.App. 4 Cir.1982).

FACTUAL FINDINGS OF THE TRIAL COURT

In his second and fourth assignments of error, defendant complains about two factual findings of the trial court. Defendant first argues that the trial court erred in failing to find that he and plaintiff had mutually agreed to substitute MTD, Inc. as the lessee in the lease agreement and that therefore, defendant was not individually liable to plaintiff. Defendant next argues that the trial court erred in failing to recognize that plaintiff consented to defendant remaining in possession of the leased premises by accepting rent during the hold-over period. It is well established that an appellate court must accord deference to a trial court’s factual findings on the intent of contracting parties, where those findings are reasonable and adequately supported by credible evidence, or else the appellate court must articulate the reason that the finding was manifestly erroneous. Commercial Bank & Trust Company v. Bank of Louisiana, 487 So.2d 655, 659 (La.App. 5 Cir.1986).

In its written reasons for judgment, the trial court found that plaintiff “allowed [defendant] to substitute the corporate name for his individual name on line 4 [of the lease] only as an accommodation to [defendant] for purposes of facilitating his acquisition of a liquor license and that there was no agreement by [plaintiff] that the corporation be ‘substituted’ as the lessee or that the lease be |7assigned to or ‘assumed by” the corporation.” The record reasonably supports this factual conclusion.

Defendant wrote a letter on behalf of MTD, Inc. to plaintiff explaining that a copy of the lease must accompany his corporation’s application for a liquor license and that in order for the license to be issued, the name of the lessee on the lease needed to be the same as his business’s liquor license application. Despite this letter acknowledging defendant’s motive for requesting the name change on the lease, defendant argues that he never intended to be an individual lessee under the lease. Defendant contends that he was only using his name on the lease because MTD, Inc. was not incorporated at the time the lease agreement was signed. He testified that it was always understood that the lessee was going to be MTD, Inc., and that he never agreed to personally guarantee the lease. Defendant admitted that his name appears individually on the signature lines of the lease agreement and that there is no reference to MTD, Inc. anywhere near his signature on the lease agreement. He testified that the signature lines were not changed because the lease agreement that he originally signed was never intended to be the final lease. However, defendant did not offer any other version of the lease into evidence.

Plaintiff (as well as his son, Robert G. Claitor, Jr., who negotiated the lease on behalf of plaintiff) testified that the name change only occurred on one line in the lease and it was made simply to accommodate the liquor license application process for defendant’s restaurant/bar business. Plaintiff (and his son) explained that the signature lines and other areas of the lease agreement designating defendant as the lessee were never changed because plaintiff never intended to release defendant from personal liability and/or any obligations under the lease.

Defendant’s wife, Sharon Delahoussaye, one of his attorneys, Robert “Bubba” Burns, Jr., his brother, and Gerald Dela-houssaye all testified that defendant formed MTD, Inc. in order to substitute the corporation as lessee on the lease and to avoid personal liability. The trial court obviously discounted this |stestimony and focused instead on the intent of the two contracting parties, plaintiff and defendant, to conclude that the corporation was not the lessee in the lease agreement.

Plaintiff (and his son) also testified that he never consented to defendant remaining in the leased premises after he gave notice of the termination of the lease and after he filed the declaratory judgment lawsuit. Plaintiff testified that he requested that defendant vacate the leased premises and he informed defendant on numerous occasions that the hold-over period described in paragraph 25 of the lease exposed defendant to triple rent damages. Defendant acknowledged at trial that he knew he was in the hold-over period and that he was taking a risk by not vacating the leased premises in that he could be responsible for hold-over rent. Defendant testified that he felt he had a good argument that he was exercising his option to renew the lease, so he took the risk of not vacating the leased premises. The trial court found that, “[u]nder the circumstances, it was unreasonable for [defendant] to believe that [plaintiff] consented to his continued occupancy of the leased premises.” A review of the record convinces us that the trial court was reasonable in this factual conclusion, and we conclude that defendant was well aware of the possible consequences of remaining in the leased premises after plaintiff gave notice of his intent to terminate the lease and filed the lawsuit for declaratory judgment.

We also find no merit to defendant’s contention that because plaintiff continued to accept defendant’s partial rental payment of $1,650.00 per month during the hold-over period, that plaintiff acquiesced or impliedly consented to defendant’s occupancy during that time. The cases cited by defendant in support of this contention involve eviction proceedings and factual determinations that the lessor either impliedly consented to a modification of the lease or forgave a breach of the lease by accepting rental payments after a notice to vacate. The record in the instant case clearly shows that plaintiff chose not to initiate eviction |9proceedings, but rather decided to protect his interests by pursuing triple rent damages as clearly provided for in the lease agreement. The record supports the trial court’s factual conclusion that plaintiff not only informed defendant that he was in the lease hold-over period but that defendant knew plaintiff considered his continued occupancy to be during the hold-over period as described in the lease agreement.

Furthermore, there is no legal presumption of consent that arose from plaintiffs acceptance of the partial rental payments made by defendant during the hold-over period. See Kizer v. Burk, 439 So.2d 1051, 1058 (La.1980); see also Illinois Central Gulf Railroad Co. v. International Harvester Co., 368 So.2d 1009, 1012 (La.1979), wherein the supreme court held that the acceptance of rental payments, silence as to changes in the use of leased premises, and a delay in filing eviction proceedings did not necessarily indicate that the lessor had impliedly consented to a sublease or modification of the lease. In the ease sub judice, we find that plaintiffs acceptance of the partial rental payment during the hold-over period and his notice to defendant that defendant was in default by not paying triple rent during that same period, did not constitute an implied consent to defendant’s continued occupancy such that the lease could be considered reinstated or the rent amount modified. On the contrary, we find plaintiffs actions to demonstrate his lack of consent and his attempt to settle the matter amicably by enforcing the lease provision without resorting to an eviction proceeding. Thus, we will not disturb the trial court’s finding of fact with respect to plaintiffs lack of consent.

After a thorough review of the record, we conclude that there was no error on the part of the trial court in its factual conclusions. The trial court was in the best position to determine the credibility of all the witnesses. We will not second-guess that credibility determination. The trial court evidently rejected defendant’s contention that plaintiff knew that he was dealing with a corporate entity as lessee rather than defendant personally. Obviously, the trial court was not satisfied that both plaintiff and defendant intended to substitute the corporate [10name as lessee in the lease agreement when defendant changed the name on line four of the agreement but not on the signature lines. Our review of the evidence convinces us that the findings of the trial court in this regard are amply supported by the evidence and are not erroneous.

Additionally, we note that the record is void of any evidence that plaintiff was ever put on notice that he was leasing to a corporation or that a corporation was ultimately going to be the lessee in the negotiated lease agreement, even at the time the corporate name was put in the lease agreement to facilitate the liquor license application process for defendant. There is nothing in the record to show that at the time defendant signed the lease agreement, plaintiff was made aware that defendant was acting as a representative of MTD, Inc. or of the future MTD, Inc., and not in his individual capacity. Given these circumstances, we see no error in the trial court’s finding that defendant was individually liable under the lease agreement. We believe that defendant should have been more explicit when the corporate name was substituted on the one line in the lease agreement. Further, if it was defendant’s intention to bind MTD, Inc. rather than himself personally, the signature lines of the lease agreement should have been altered to reflect the corporate status of the lessee. See Butler v. Harrington, 99-2549, p. 3 (La.App. 4 Cir. 4/12/00), 761 So.2d 50, 52; Welch v. Fuhrman, 496 So.2d 484, 487 (La.App. 1 Cir.1986); General Electric Company v. Ponder, 234 So.2d 786, 787 (La.App. 1 Cir.), unit refused, 256 La. 620, 237 So.2d 399 (1970). Accordingly, these assignments of error are without merit.

INTERPRETATION OF THE LEASE AGREEMENT

In defendant’s assignments of error numbers three, five and eight, he questions the trial court’s interpretation and application of several clauses in the lease agreement. The general rules of contract interpretation found in articles In2045 — 2057 of the Louisiana Civil Code establish that when the words of a written agreement are clear and explicit and lead to no absurd result, no further interpretation as to the common intent of the parties can be made. See Martin Exploration Company v. Amoco Production Company, 93-0349, p. 5 (La.App. 1 Cir. 5/20/94), 637 So.2d 1202, 1205, unit denied, 94-2003 (La.11/4/94), 644 So.2d 1048, Furthermore, when a clause in a contract is dear and unambiguous, the letter of that clause should not be disregarded under the pretext of pursuing its spirit. Id. When contract terms are susceptible to more than one interpretation, or there is uncertainty or ambiguity as to the provisions in a contract, or the intent of the parties cannot be ascertained from the language employed, parol evidence is admissible to clarify the ambiguity or show the intention of the parties. In such cases, the agreement shall be construed according to the intent of the parties. Intent is an issue of fact to be inferred from all of the surrounding circumstances. Id.

A determination of the existence or absence of an ambiguity in a contract entails a question of law. An appellate review that is not founded upon any factual findings made at the trial court level but, rather, is based upon an independent review and analysis of the contract within the four corners of the document, is not subject to the manifest error rule of law. Hawco Mfg. Co., Inc. v. Superior Chain, Inc., 98-1037, pp. 4-5 (La.App. 1 Cir. 9/24/99), 754 So.2d 1062, 1066. In such cases, appellate review is simply whether the trial court was legally correct. Martin Exploration Company, 637 So.2d at 1206.

To determine the meaning of words used in a contract, a court should give them their generally prevailing meaning. LSA-C.C. art.2047. If a word is susceptible to different meanings, it must be interpreted as having the meaning that best conforms to the object of the contract. LSA-C.C. art.2048. A provision susceptible of different meanings must be interpreted with a meaning that renders the provision effective, and not with one that renders it ineffective. LSA-C.C. art.2049. Furthermore, each provision in a contract must be interpreted in light of the other provisions so that each is given the meaning suggested by the | ^contract as a whole. LSA-C.C. art.2050. Doubtful provisions must be interpreted in light of the nature of the contract, equity, usages, the conduct of the parties before and after the formation of the contract, and other contracts of a like nature between the same parties. LSA-C.C. art.2053.

With these rules of contract interpretation in mind, we review de novo the provisions of the lease agreement executed by plaintiff and defendant. Paragraph 25 of the lease has a heading entitled “Surrender of Possession” and provides as follows:

Upon expiration or termination of this lease, Lessee shall surrender possession of the leased premises immediately to Lessor. Any holding over by Lessee shall not operate, except by written agreement, to extend or renew this lease, but in such ease, Lessor may terminate Lessee’s occupancy at once or may consider such occupancy to be from month to month; and Lessee, in the event of such holding over without Lessor’s consent, shall pay triple the rent stipulated in this lease, together with such loss or damage as may be caused to Lessor by such holding over. (Emphasis added.)

Defendant argues that plaintiff “can-celled” rather than “terminated” the lease, and that therefore, the triple rent provisions for holding over do not apply. However, we find that regardless of the word used, the result of the “cancellation” or “termination” of the lease was that the lease period came to an end. The lease was declared effectively “terminated” as of September 30, 1995, after plaintiff sought a declaratory judgment that is now final. The key inquiry for triggering the triple rent provision is not how the lease ended or what word defined that ending, but whether plaintiff agreed/consented to defendant’s continued occupancy after the lease was terminated.

As we discussed earlier, there was ample evidence for the trial court’s factual determination that plaintiff did not consent to defendant’s holding over. Furthermore, there was no written agreement between plaintiff and defendant fallowing defendant to hold-over after the effective termination of the lease. Thus, we look to the clear and unambiguous language of Paragraph 25 in the lease agreement providing that if plaintiff did not consent to defendant’s holding over, then defendant shall pay triple the rent stipulated in the lease. Given the absence of any ambiguity within the written provision, we agree with the trial court’s holding that the conduct of the parties (i.e., plaintiff’s effective termination of the lease and defendant’s holding over on the leased premises without plaintiffs consent) triggered the triple rent provision in Paragraph 25 of the lease agreement.

Additionally, we reject defendant’s •argument that to apply the triple rent provision of Paragraph 25 is the equivalent of plaintiff using the lease provision to recover punitive damages. Plaintiff and defendant freely executed the lease agreement with the triple rent provision in the event that defendant continued to occupy the leased premises after plaintiff effectively terminated the lease. There is no law prohibiting such a stipulated penalty or damage provision in a lease. See Lama v. Manale, 218 La. 511, 518, 50 So.2d 15, 17 (1950), where the supreme court upheld a liquidated damages provision for five times the rent per day for every day the lessee failed to surrender possession. We are required to recognize the legal effect of all the provisions in the lease agreement and to hold the parties to a full performance of the obligations flowing from the terms of the contract. See Hawco Mfg. Co., Inc., 754 So.2d at 1066. Therefore, we find no error in the trial court’s determination that plaintiff was entitled to the holdover rent as provided in the lease.

We also find that the trial court properly calculated the $1,650.00 per month rent due as it was clearly provided for in Paragraph 8 of the lease agreement. Defendant contends that the addendum to the lease agreement separated the rent into $1,200.00 per month for the actual rent and $450.00 per month for “common area maintenance” of the leased premises. We find defendant’s contention to be without merit. The record clearly reveals that both plaintiff and defendant testified numerous times throughout the trial that | udefendant paid a total of $1,650.00 rent each month while his business occupied the leased premises. Both plaintiff and defendant agreed with the trial court’s computation of the difference owed between the triple rent and the rent actually paid to arrive at the total amount due for holdover rent to be $139,810.00. Defendant cannot now complain that the rent amount he paid under the lease agreement was a different figure. The actions of the parties throughout the lease term and the holdover period, as well as each party’s testimony at trial, supports the trial court’s computation of the rent due.

Additionally, we find no merit to defendant’s argument that he did not personally guarantee the performance of the lease obligations when he signed the lease agreement. As we previously discussed, the trial court reasonably concluded that defendant, not his corporation, was the lessee in the lease agreement. We further find that the clear and unambiguous language of Paragraph 47 in the lease agreement amounted to a personal guaranty by defendant as the lessee. Paragraph 47 of the lease agreement provides, in pertinent part:

the undersigned hereby makes himself or itself a party to said lease and binds himself or itself in solido with the [L]essee ... for the faithful performance and fulfillment by Lessee of all Lessee’s agreements and obligations contained in said lease and guarantees to Lessor ... the punctual payment of all rents due under said lease and the performance of all other agreements and obligations of Lessee contained in said lease .... (Emphasis added.)

Defendant personally signed the lease agreement with the above-quoted guaranty language just above the signature lines. The corporate name was not substituted or inserted anywhere near the signature fines. Thus, we conclude that defendant was personally obligated to fulfill the obligations of the lease agreement he signed as lessee. For these reasons, we find that the trial court correctly determined that defendant was liable for the triple rent damages under the lease agreement.

ATTORNEY’S FEES

After a careful review of Paragraph 36 of the lease agreement, we find merit to defendant’s contention in his sixth assignment of error that the trial court |isaward for attorney’s fees was excessive. An award of attorney’s fees may only be made when authorized by statute or by contract between the parties. Maloney v. Oak Builders, Inc., 256 La. 85, 97, 235 So.2d 386, 390 (1970); Burns v. McDermott, Inc., 95-0195, p. 5 (La.App. 1 Cir. 11/9/95), 665 So.2d 76, 79. In the instant case, the lease agreement specifically authorized the payment of attorney’s fees. Paragraph 36 of the lease agreement provided, in pertinent part:

Should an attorney be engaged by Lessor to enforce poayment (sic) of the rent due under this lease or to protect any of the interests of Lessor hereunder, with or without judicial proceedings, Lessee agrees to pay Lessor the reasonable fee of such attorney, which fee is hereby fixed, if the collection of money is involved, at 25% of the amount of such money ... and Lessee also agrees to pay all court costs and other expenses incurred by Lessor. (Emphasis added.)

The trial court awarded plaintiff full reimbursement for attorney’s fees incurred by him during both the declaratory judgment lawsuit and the instant lawsuit for damages, plus costs. We find the clear and unambiguous language of the lease agreement fixes the attorney’s fees at 25% of the amount of money awarded to plaintiff. Therefore, since the total amount of money awarded to plaintiff for the holdover rent and damages to the premises was $141,060.00, the attorney’s fees award is limited to 25% of that amount. Under the circumstances, we find that the correct amount of attorney’s fees allowed by the lease agreement is $35,265.00. The trial court erred in awarding the full amount ($63,190.55) of attorney’s fees incurred by plaintiff.

Accordingly, we amend the trial court judgment by reducing the award for attorney’s fees from $63,190.55 to $35,265.00 in strict accordance with the lease provisions. As amended, we affirm the trial court judgment in all other respects. Defendant/Appellant, Michael Delahoussaye, is cast with all costs of this appeal.

PEREMPTORY EXCEPTION RAISING THE OBJECTION OF PRESCRIPTION DENIED; JUDGMENT AMENDED AND AFFIRMED AS AMENDED.

CIACCIO, J., dissents with reasons.

hCIACCIO, J.,

Dissents with Reasons.

I respectfully dissent.

A long line of cases beginning with Canal Realty and Improvement Co. v. Pailet and followed most recently by A & J. Inc. v. Ackel Real Estate, L.L.C. have held that the acceptance of rent by the lessor after notice of cancellation and notice to vacate vitiates the notice and constitutes a waiver of that notice and forgiveness as to any and all previously committed infractions and serves to reinstate the lease as of that time.

The Kizer v. Burk suit requested a declaratory judgment to declare a lease can-celled because of the unauthorized sale of standing timber made without the knowledge or consent of the lessor. The court held that the acceptance of one rental payment under the facts of this case did not amount to a waiver of the lessor’s rights. The opinion did not overrule the earlier jurisprudence but distinguished them from the facts of this case. Likewise the Illinois Central Gulf Railroad v. International Harvester Company case dealt with a lessor that was unaware that the lessee was violating the 1 ¡.terms of the lease and the receipt of rentals under those circumstances was not found to cause a waiver of the lessor’s rights. Neither of these two cases involved a claim for liquidated damages.

The only reported case that has awarded liquidated damages of five times the stipulated rental is Lama v. Manale, wherein the lessee was cast in judgment for retaining possession of the premises after the expiration of the lease but the lessor refused to accept the tender of the rentals during the pendency of the litigation.

The plaintiff in this case was so uncertain as to the validity of his right to cancel the lease that he filed a declaratory judgment to determine if he actually had the right to cancel the lease. He did not avail himself of the summary proceeding provided by law for the eviction of tenants. There was a valid dispute over the right of the lessor to effect an early termination of the lease because of ambiguity in the language of the lease that had been drafted by the lessor. Although the notice of cancellation was issued on July 5, 1995 judgment was not rendered to confirm the cancellation of the lease until May 1999, after the defendant had vacated the premises in April 1999.

During the intervening four years the plaintiff accepted the monthly rentals that were timely tendered and, during the lengthy course of the proceedings, took no action to evict the defendant. Unlike the Lama plaintiff, Claitor did not refuse the tender of the rents nor did he deposit them in the registry of court. Unlike the Kizer and Illinois Central Gulf plaintiffs Claitor cannot claim that he was unaware of the violation of the lease while he was accepting the rental payments.

|3I find that Claitor’s acceptance of the timely offered rentals together with his failure to take any legal action to evict the defendant evidenced his waiver of any claim for damages that may have accrued prior to the acceptance of the rentals. This is not a case of a contumacious refusal to vacate the premises after the undisputed expiration of the term of a lease. The imposition of liquidated damages is not intended to apply to a case, such as this, where there is no clear right to cancel the lease.

If the lessor had suffered any damages because of the possession of the defendant during the time of the litigation the lessor should have been required to offer proof of the actual loss he may have suffered because of his inability to collect a higher rental during the disputed period.

It is unconscionable to hold that his acceptance of the rents over this extended period of time, together with his failure to take any legal action to evict the defendant, did not constitute a waiver of his rights to claim liquidated damages of five times the stipulated rentals and to be awarded a judgment in excess of $200,000.00

For the above reasons, I would reverse the judgment of the trial court.

      . Plaintiff’s separate suit for declaratory judgment was filed in the 22nd Judicial District Court as case number 95-13582 on September 15, 1995.

      . The record shows that the trial court vacated two previous judgments in case number 95-13582 (dated May 13, 1999, and May 21, 1999) and rendered a final judgment on March 16, 2000, even though a typographical error reflected the year to be 1999. Defendant appealed the declaratory judgment on May 16, 2000, but later abandoned that appeal. Thus, the issue of the effectiveness of plaintiff's termination of the lease is not before us in this appeal.

      . The second lawsuit was filed in the 22nd Judicial District Court as suit number 99-14677.

      . Defendant also filed various other exceptions and a motion for summary judgment, all of which were denied by the trial court.

      . We note that plaintiff did not seek triple rent damages as stipulated in the lease in his petition for declaratory judgment, but he did reserve his right to bring that cause of action and all other claims for damages and attorney’s fees in another proceeding.

      . Three letters were introduced into evidence whereby defendant and/or his attorney were notified of the hold-over period and informed that he was in default by not paying triple the rent during the period.

      . Generally, one who claims to be acting in a corporate capacity has a duty to disclose that he is acting as an agent for the corporation and not as an individual. The burden is upon the one claiming the agency relationship to prove he disclosed his capacity and the identity of his principal if he is to escape liability. LSA-C.C. arts. 3016 — 3018; Century Pools, Inc. v. Pinkstaff, 598 So.2d 1189, 1192 (La.App. 5 Cir. 1992).

      . Black’s Law Dictionary, Sixth Edition (1990), defines ”[c]ancellation” as "[t]o destroy the force, effectiveness, or validity of. To annul, abrogate, or terminate.... Occurs when either party puts an end to the contract ... and its effect is the same as that of ‘termination” ’ (emphasis added), and defines "[t]ermination” as "[e]nd in time or existence; close; cessation; conclusion.... With respect to a lease or contract, term refers to an ending, usually before the end of the anticipated term of the lease or contract .... ”

      . 217 La. 376, 46 So.2d 303 (1950).

      . 2002-259 (La.App. 5th Cir.2002), 831 So.2d 311.

      . This court so held in the cases of Mitchell v. V-6 Company, Inc., 372 So.2d 645 (La.App. 1st Cir. 1979) and Major v. Hall 251 So.2d 444 (La.App. 1st Cir. 1971). See also, Ernst Food Mart, Inc. v. Jackson-Atlantic, Inc., 405 So.2d 1272 (La.App. 4th Cir.1981); Campesi v. Marino, 506 So.2d 177 (La.App. 5th Cir.1987); Flores v. Gondolier, Ltd., 375 So.2d 400 (La.App. 3rd Cir.1979); Murphy Oil Corporation v. Gonzales, 316 So.2d 175 (La.App. 4th Cir. 1975); West End Landing, Inc. v. Board of Commissioners, 299 So.2d 418 (La.App. 4th Cir.1974); Arms v. Rodriguez, 232 La. 951, 95 So.2d 616 (1957). The majority declines to follow these cases by relying on the cases of Kizer v. Burk, 439 So.2d 1051, 1053 (La.1980) and Illinois Central Gulf Railroad Co. v. International Harvester Co., 368 So.2d 1009, 1012 (La.1979).

      . 439 So.2d 1051 (La.1980).

      . 368 So.2d 1009 (La.1979).

      . 218 La. 511, 50 So.2d 15 (1951).


source: Caselaw Access Project

author: | ?PARRO, J.

license: Public Domain

text:
    Shelby R. DAY v. Rosie Nell Laborde DAY.
    No. 2002 CA 0431.
    Court of Appeal of Louisiana, First Circuit.
    May 28, 2003.
    Writ Denied Nov. 7, 2003.

      Kreig A. Breaux, New Iberia, for Defendant-in-Rule/Appellee Shelby R. Day.
    Tommy K. Cryer, Shreveport, for Plaintiff-in-Rule/Appellant Rosie Nell Laborde Day.
    Before: PARRO, McDONALD, and CLAIBORNE, JJ.

      . Judge Ian W. Claiborne, retired from the Eighteenth Judicial District Court, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

   | ?PARRO, J.

Rosie Nell Laborde Day appeals a judgment that dismissed her claims against her former husband, Shelby R. Day, for certain support payments and for community property interests in his military and civilian retirement plans. We amend and affirm as amended.

FACTUAL AND PROCEDURAL BACKGROUND

Rosie Nell Laborde Day and Shelby R. Day were married October 17, 1964, and divorced October 10, 1991. In the divorce judgment, Mrs. Day was awarded permanent alimony in the amount of $400 per month, payable $200 on the 1st and $200 on the 15th of each month. On March 18, 1992, the parties executed a community property settlement agreement (the agreement), which stated, in pertinent part:

Shelby R. Day, as a further consideration of the transfers herein made, agrees to pay to Rosie Nell Laborde Day the sum of $400.00 per month as alimony and support, which support shall be paid on the first day of each month hereafter and shall continue until Rosie Nell Laborde Day reaches her 62nd birthday, at which time the parties agree that all alimony and support shall cease and terminate. The parties agree not to modify said amount by increase or decrease, however, said amount shall terminate upon the remarriage of Rosie Nell Laborde Day.
Shelby R. Day and Rosie Nell La-borde Day agreed that each shall be entitled to and received (sic) 50% each of all 401K savings and stock invested with or issued in either of the (sic) names with Honeywell, Inc. as of October 16, 1991, Shelby R. Day agrees to pay all penalties for early withdrawal of any sums of money withdrawn therefrom. Rosie Nell Laborde Day agrees to pay all taxes due on any sums of money received by her therefrom.
The parties hereto declare that the property described in the foregoing transfers constitutes all of the property belonging to the community formerly existing between them and that they do hereby relieve and release each other from any further accounting for the property herein described.

The agreement does not discuss Mr. Day’s military retirement benefits.

Mrs. Day’s petition to enforce the agreement and to make support arrearages ex-ecutory was filed February 16, 2000; it stated Mr. Day had not paid alimony awarded by the court in the divorce judgment and had not paid $400 per month as specified in ]3the agreement. Mrs. Day also claimed he had refused to release and/or deliver to her 50% of the 401(k) savings and stock invested with Honeywell, Inc., and asked that he be required to pay her the value in those accounts as of October 16, 1991, together with any later-deposited dividends and interest. Finally, she claimed the partition agreement was silent as to her community interest in Mr. Day’s military retirement benefits and as to any retirement benefits from his employment with Honeywell, and asked the court to recognize her ownership interest in those retirement plans.

In April 2000, a hearing was held on past-due court-ordered alimony, after which the court ordered Mr. Day to pay $24,600 plus legal interest from the date each payment was due until paid, continuing payments as they accrued, attorney fees, and court costs. Mr. Day was also found in contempt of court and sentenced to 90 days in jail; execution of the sentence was deferred 120 days, during which time he could pay all that was due and have his sentence set aside. Mr. Day stated in a deposition that he had paid all the arrearages and interest required by this judgment and had kept the payments current.

After a trial, the court ruled that the $400 “as alimony and support” in the agreement was “merely an adoption of the alimony order in the judgment of divorce” and dismissed Mrs. Day’s claim for an additional $400 per month contractual support. The court also found that the language in the agreement regarding the 401(k) account did not require Mr. Day to withdraw 50% of the funds and give them to Mrs. Day. Rather, the court interpreted the agreement as recognizing Mrs. Day’s 50% ownership interest in whatever was in the account, which she could claim at any time by executing a Qualified Domestic Relations Order (QDRO) and submitting it to Honeywell. Finally, |4the court ruled Mrs. Day had waived her rights to Mr. Day’s military retirement benefits. The judgment was signed July 13, 2001. Mrs. Day’s motion for new trial was denied on October 25, 2001, and she appealed.

ISSUES ON APPEAL

Mrs. Day contends that the agreement is not ambiguous, and therefore, parol evidence should not have been admitted by the trial court. However, should this court conclude that the agreement is not clear, she argues that any ambiguities should be interpreted against Mr. Day, because it was prepared at his direction by his attorney.

With this in mind, she asserts that the agreement clearly provides for support payments to her of $400 per month and does not say those payments are in lieu of or instead of the court-ordered alimony; any perceived ambiguity in the provision should be interpreted against Mr. Day, whose attorney drafted the agreement. She further argues that even if this court agrees with the trial court that the monthly support in the agreement was a reiteration or adoption of the court-awarded alimony, its inclusion in the agreement makes it contractual, such that it can be enforced for up to ten years, rather than the five-year enforcement limitation applicable to alimony arrearages.

With reference to the 401(k) plan, Mrs. Day argues that the judgment of the trial court writes out of the agreement the parties’ clear statement that Mr. Day agreed to pay any early withdrawal penalties, because if she withdraws funds from her own portion after executing a QDRO, she will have to pay those penalties. She claims this language shows the parties intended for Mr. Day to withdraw those funds and pay them to her at that time and with the valuation as of October 16, 1991. She says this intent |¡js also reflected in the use of the word “received” in the agreement, suggesting actual payment was intended.

Finally, Mrs. Day maintains that when a community property partition is silent as to the division of pension benefits, that silence is not a waiver of the spouse’s ownership rights, and the benefits can be partitioned in a later act or by the court. She claims that the release language, which is restricted to “property herein described,” provides further support for her position, since the military retirement benefits are not described anywhere in the agreement.

PAROL EVIDENCE

When the court is asked to interpret an authentic act, the admission of parol evidence is governed by Louisiana Civil Code article 1848, which states:

Testimonial or other evidence may not be admitted to negate or vary the contents of an authentic act or an act under private signature. Nevertheless, in the interest of justice, that evidence may be admitted to prove such circumstances as a vice of consent, or a simulation, or to prove that the written act was modified by a subsequent and valid oral agreement.

Although parol evidence is generally not admissible to vary or contradict the terms of an authentic act, in the interest of justice, it may be admitted under certain circumstances. Sonnier v. Boudreaux, 95-2127 (La.App. 1st Cir.5/10/96), 673 So.2d 713, 718. Between two parties to an instrument, parol evidence is admissible to show fraud, mistake, illegality, want or failure of consideration, or to explain an ambiguity when such explanation is not inconsistent with the written terms. Scafidi v. Johnson, 420 So.2d 1113, 1115 (La.1982). In First State Bank & Trust Co. v. Seven Gables, Inc., 501 So.2d 280, 285-86 (La.App. 1st Cir.1986), unit denied, 502 So.2d 103 (La.1987), this court allowed par-ol evidence in a dispute over a guaranty agreement — an authentic | fiact — when a date reference was clearly incorrect. Also, this court recently affirmed the admission of parol evidence to explain the commencement date for alimony payments; the authentic act providing for those payments was ambiguous, because the day and date used in the document did not exist. Holliday v. Holliday, 00-0533 (La.App. 1st Cir.8/17/01), 795 So.2d 423, 428, amended on rehearing on other grounds, 00-0533 (La.App. 1st Cir.9/28/02), 797 So.2d 774. In McCarroll v. McCarroll, 96-2700 (La.10/21/97), 701 So.2d 1280, 1286, parol evidence was allowed to clarify an ambiguity in an authentic act, namely, whether retirement benefits were contemplated by the parties when they used the term, “movable property” in that act.

Unlike those cases, neither party in this case seeks to negate or vary the contents of the agreement, which is an authentic act. Nor do they contend that the agreement itself is ambiguous or that there was some mutual mistake in its drafting or confection. Rather, the issue involves the relationship between two documents — the judgment of the trial court awarding Mrs. Day $400 per month alimony and the later agreement confected by the parties in which they agreed to the same amount of alimony. This relationship cannot be determined from the two documents themselves, as neither references the other. Mrs. Day argues that because the later-signed agreement did not say that the $400 per month alimony was “in lieu of’ or “the same as” that awarded in the judgment, it must be an additional amount. Conversely, Mr. Day contends that because the agreement did not say that the $400 per month alimony was “in addition to” that awarded in the judgment, it must be a reiteration of that award. Because the parties are not trying to vary the terms of the agreement, but are attempting to explain the relationship between the agreement and the earlier judgment, a factual question that cannot be discerned by examining the two documents, we conclude that the trial court did not err in allowing parol evidence to clarify this issue.

With reference to Mr. Day’s military retirement benefits, parol evidence was also admissible, because these benefits were not mentioned at all in the agreement. ^J^Therefore, Mrs. Day’s claims concerning entitlement to those benefits could only be determined through extrinsic evidence.

ALIMONY/SUPPORT

Mr. Day testified that the parties agreed that he would pay Mrs. Day $400 per month for alimony, and that this amount was included in the judgment of divorce. However, Mrs. Day was concerned with the wording in the judgment of divorce, which awarded her alimony “until further orders of this Court.” She feared he might try to have the alimony reduced or eliminated at some future time. Therefore, she wanted the property settlement agreement to include a provision stating that the alimony would not terminate until she reached 62 years of age. Mr. Day said he told her:

Fine, then we can modify what was in the divorce decree [and include it] in this document right here that I would have to pay you $400.00 alimony until your 62nd birthday.

He said it was this request from Mrs. Day that generated the alimony provision in the agreement, and that neither of them ever discussed or intended that he would pay two alimony payments per month of $400 each.

On cross-examination, Mrs. Day confirmed Mr. Day’s testimony in the following colloquy:

Q. Okay, and you do recognize that joint exhibit number one(l), the community property settlement agreement also has the identical amount, $400.00, also classified as “alimony”?
A. Yes I realize that is how it is written, yes.
Q. And you would also admit that you did have a conversation with Mr. Day shortly after the judgment was entered, whereby the judgment, joint exhibit two(2) states that, that amount is payable until further order of the court, correct?
A. Right.
Q. And that concerned you, because you didn’t want it terminated right?
A. I wanted it until I was 62.
IsQ. So the concerns you had in the language of the judgment that alimony can be changed, “by order of the Court,” was satisfied by that paragraph. It was going to be good until you were 62, and [he] could not challenge it or change it?
A. Right.

However, Mrs. Day also stated she always believed the alimony provided in the agreement was a separate and additional payment, beyond what had been ordered in connection with the divorce. On redirect examination, Mrs. Day responded affirmatively to the following questions:

Q. At ... execution of this agreement was it your expectation that you would want to continue to receive the alimony ordered by the court in the October judgment?
A. Yes.
Q. And that you were going to receive an addition[al] amount of $400.00 cash to offset the value of the equity of the home ...
A. That is right — That is correct[,] Sir.

Mrs. Day acknowledged that she had not ever been paid $800 per month and had not tried to collect any additional alimony in the many years preceding this litigation.

In addition to the parties’ testimony, Mr. Day presented the testimony of their son, George Keith Day, who said that, based on discussions with his mother concerning the amount of alimony, he understood “she was supposed to get like $400.00 a month or something like that.” He encouraged her to “ask for more alimony,” but she declined, indicating she “was happy with just getting a little bit [of] alimony....” He did not recall any discussions in which his mother indicated she would receive two separate alimony payments for a total of $800. He also said that after the divorce, during a time when his mother lived with him and his first wife, his mother received $400 per month “and that is what she said she wanted.”

The agreement was drafted by Mr. Day’s attorney, Robert L. Freeman, based on information provided to him by his client and hand-written notes from Mrs. Day. His recollection concerning the relationship between the alimony payments ordered in the judgment and those provided by the agreement was that “they were actually the 19same[;] one was just reinstated in the other.” He said, “It was not going to be a one $400.00 payment here and one $400.00 here, ...” but rather “one $400.00” payment.

In addition to this testimonial evidence, Mr. Day submitted two documents from Mrs. Day that summarized some of their negotiations concerning the alimony and property settlement. The first of these documents, which was typed by Mrs. Day and bears the heading, “Divorce Terms and Agreements,” refers to March 17, 1991, as a date the parties discussed certain things. Mr. Freeman testified that he reviewed this document with Mr. Day and made marginal notes in red ink to indicate his Ghent’s responses and counter-proposals. In item 4, Mrs. Day proposed, “Total support of $800.00 per month for a period of one year while I go to school and learn a trade in order to support myself.” The notation in red ink indicates Mr. Day would only agree to $600 per month for the first year. In item 6, Mrs. Day proposed, “One-third of your military retirement pay of $350.00 per month until I reach the age of 62 or at a time when you no longer receive that pay.” Mr. Day’s counter-proposal indicates that after one year at $600 per month, he would agree to pay $400 per month from his military retirement pay until she reached age 62 or remarried. In item 7, Mrs. Day proposed, “You pay alimony of $300.00 per month for at least 5 years.” Alongside that proposal, Mr. Day’s response is a terse “No.”

On November 21, 1991, Mrs. Day mailed a letter to Mr. Freeman, enclosing a written copy of terms to which she said she and Mr. Day had agreed concerning their community property settlement. In that document, she had written the following:

Mr. Day agrees to pay Mrs. Day support of $400.00 per month for the next 11 years. This support is to be paid on the 1st day of each month and no later. Mr. Day agrees that this support of $400.00 each month cannot be contested or altered at anytime, unless Mrs. Day remarries. This agreement between Mr. and Mrs. Day on October 4, 1991[,] and again on November 12, 1991, was a firm agreement.

Mr. Day’s attorney testified that he noted in the margin alongside this item, “OK,” based on discussions with his client. Mr. Freeman also circled the words “next 11 years,” and wrote in the margin, “62nd birthday.”

10In Bonck v. Bonck, 500 So.2d 798, 800 (La.App. 1st Cir.1986), writ denied, 501 So.2d 774 (La.1987), this court cited with approval the rationale of the Third Circuit in King v. King, 390 So.2d 250 (La.App. 3rd Cir.1980), unit denied, 396 So.2d 884 (La.1981), on which the trial court relied in this case. In the King case, the parties contractually agreed to alimony payments of $200 per month until Mrs. King remarried; the same amount of alimony was included in the judgment, which could be revised or terminated upon further orders of the court. Mr. King eventually demonstrated a change in circumstances sufficient for the trial court to terminate the alimony, and Mrs. King appealed, seeking to collect $200 per month pursuant to the judgment and another $200 per month as specified in the parties’ agreement. The court concluded that the contract provision was merely an adoption of the court order, stating:

[W]e find that the parties did not intend for Mrs. King to receive $400.00 per month as alimony. The parties intended to signify their approval of the alimony judgment by including it in the community property settlement. However, they intended to affect their respective alimony rights and obligations by providing for the payment of alimony until Mrs. King’s remarriage rather than until further orders of the court.

King, 390 So.2d at 254. The court further held that Mr. King had waived his right to have the $200 per month alimony payments changed or terminated.

Based on our review of the testimonial and documentary evidence in the case before us, we agree with the trial court that the evidence simply does not support Mrs. Day’s contention that she was to receive a total of $800 for alimony each month. Perhaps the most telling piece of evidence is her own proposal in March 1991 — seven months before the divorce judgment — in which the amount of $800 was mentioned only in the context of the first year’s payments. In her proposals concerning military retirement benefits and alimony, the total requested from both sources was $650 per month. It strains logic to believe that Mr. Day would have negotiated himself into paying $800 in alimony per month, when she had only asked for $650 per month from both alimony and military retirement benefits. We agree with the conclusion of the trial court that the alimony payments specified in the agreement were a reiteration of those In ordered by the court in the divorce judgment, with the additional proviso that the payments would not be altered or discontinued until Mrs. Day reached age 62 or remarried.

Moreover, we disagree with Mrs. Day’s claim that inclusion of the alimony provision in the agreement converted it into an obligation enforceable for up to ten years, rather than the five years already ordered by the trial court. Even though the payments were re-stated in the contractual agreement, they are still clearly described in that document as “alimony and support.” This court noted in Bonck that divorced spouses may validly contract with each other for permanent alimony, without changing the character of the payments. The court stated:

The reasons for such an agreement are set forth in Jones v. Jones, 459 So.2d 1200, 1204 (La.App. 5th Cir.1984), writ denied, 462 So.2d 649 (La.1985) as follows:
The record supports our conclusion that the agreement states a bargained-for arrangement advantageous to both parties. Mrs. Jones is assured of a set sum of monthly payments, regardless of any change in circumstances which ordinarily reduce or terminate those payments (other than remarriage). Should her income increase or needs decrease, she will not suffer a decrease in payment. On the other hand, Mr. Jones is assured that he will never have to face an increase, in the event of an unfortunate happenstance occurring to Mrs. Jones, such as illness or unemployment. In short, each party received benefits from the arrangement. Such does not change the character of the payments as alimony.

Bonck, 500 So.2d at 800. Even though the alimony payments were described in a contractual agreement, their nature as spousal support did not change. An action to make executory arrearages of spousal support is subject to a liberative prescription of five years. LSA-C.C. art. 3497.1. We conclude, therefore, that whether included in a contract or ordered by the court, the right to enforce those payments was limited to five years from the date each payment was due. As this obligation has already been satisfied by Mr. Day’s payments pursuant to the trial court’s May 8, 2000 judgment, Mrs. Day is not entitled to any further relief.

1 ^MILITARY RETIREMENT BENEFITS

Each spouse owns a present undivided one-half interest in the community during its existence. LSA-C.C. art. 2336. To the extent that a property right derives from the spouse’s employment during the existence of the marriage, it is a community asset subject to division upon dissolution of the marriage. See LSA-C.C. art. 2338; Sims v. Sims, 358 So.2d 919 (La.1978); T.L. James & Co., Inc. v. Montgomery, 332 So.2d 834 (La.1975). Consequently, when the community is terminated, the employee’s spouse is entitled to be recognized as the owner of one-half of the value attributable to the pension or deferred compensation right earned during the existence of the community. See LSA-C.C. art. 2336; Robinson v. Robinson, 99-3097 (La.1/17/01), 778 So.2d 1105, 1114. When the community is terminated, each spouse becomes a fully vested co-owner in indivi-sión of all property of the former community regime, including pension benefits acquired during the community. See LSA-C.C. 2369.2; see also Robinson, 778 So.2d at 1115.

Louisiana jurisprudence is clear; general divestiture language in a community property settlement agreement does not necessarily divest the non-employee spouse of his or her right in the employee spouse’s pension. When the agreement does not expressly address the employee spouse’s pension, the issue of whether the agreement divests the non-employee spouse of any community property rights in the pension depends on the intent of the parties. Jennings v. Turner, 01-0631 (La.11/28/01), 803 So.2d 963, 964. The issue of whether a pension was considered in property settlement discussions is a question of fact. Robinson, 778 So.2d at 1119; Jennings, 803 So.2d at 964.

The Robinson court reviewed the jurisprudence to determine the situations in which courts had allowed supplemental partitions of pension benefits when those were not addressed in community property settlements. When later partitions were allowed, the courts generally had found that the spouses did not discuss the pension benefits before confecting their community property settlements, and therefore their intent to | ^include those benefits in their agreements was not supported by the evidence. See Hare v. Hodgins, 567 So.2d 670 (La.App. 5th Cir.1990), reversed in part on other grounds, 586 So.2d 118 (La.1991); Faucheaux v. Faucheaux, 97-1369 (La.App. 4th Cir.1/28/98), 706 So.2d 654, unit denied, 98-0482 (La.4/9/98), 717 So.2d 1146. On the other hand, in cases in which the courts found both spouses were aware of and had discussed the pension benefits prior to confecting their community property settlements, the conclusion reached was that they had intended for the agreement to settle all community property, including pension benefits that were not specifically addressed in the document. See Chrisman v. Chrisman, 487 So.2d 140 (La.App. 4th Cir.1986); Brignac v. Brignac, 96-1702 (La.App. 3rd Cir.6/18/97), 698 So.2d 953, writ denied, 97-2584 (La.1/16/98), 706 So.2d 976. In both the Robinson and Jennings cases, the supreme court found that the parties had not discussed the husband’s pension plan at all during their negotiations leading up to the settlement of community property. In fact, the court in the Jennings case accepted the wife’s testimony that she did not even know her husband had a pension plan until after she had signed the agreement.

Both parties in the case before us acknowledged that the military retirement benefits were discussed extensively, and the written proposal from Mrs. Day in March 1991 specifically references these benefits. However, Mrs. Day testified that she never agreed to give up her claim to those benefits. She said that when she signed the agreement, which did not mention them, she did so “[b]ecause Mr. Day had explained to me that the military retirement pay was a separate deal, that it had to be taken care of through the military and not included into this.” To the contrary, Mr. Day and his attorney both testified that Mr. Day would not agree to pay Mrs. Day alimony plus a portion of his military retirement benefits; therefore, he agreed to pay more in alimony | uthan she would have received from his military retirement benefits and to continue those alimony payments until she reached age 62 or remarried. The handwritten notations on Mrs. Day’s March 1991 proposal support this testimony. In the November 1991 letter Mrs. Day sent to Mr. Day’s attorney, she said the enclosed list summarized “what we came to an agreement on” regarding the community property settlement. The military retirement benefits were not mentioned in that enclosure. Additionally, their son said that when he asked his mother about his father’s retirement, she responded that the retirement benefits were his and he had earned them. This conversation took place before the agreement was signed.

It is clear from the record that both parties were fully aware of Mr. Day’s military retirement benefits and that these benefits were discussed extensively during the negotiation process. Relying on the jurisprudence and using this finding of fact as the critical factor in the case before us, we find no error in the trial court’s conclusion that in confecting the agreement, Mrs. Day waived her rights to receive a portion of her husband’s military retirement benefits.

THE HONEYWELL 401(k) PLAN

We have considered Mrs. Day’s arguments and examined the wording of the agreement, and find no legal error in the trial court’s judgment. The agreement recognized that each of the parties was entitled to 50% of the Honeywell 401(k) account, as of October 16, 1991. The agreement further stated Mr. Day agreed to pay all penalties for early withdrawal of any sums, and Mrs. Day agreed to pay all taxes due on any sums that she might receive from the account. These provisions echo the instructions in Mrs. Day’s November 1991 letter to Mr. Freeman.

The trial court’s judgment ordered:

|1s[T]hat the claims and demands of ROSIE NELL LABORDE DAY for one-half (1/2) of the subject Honeywell 401(k) as of the effective date of divorce, subject to market growth or diminution of her share to date, is recognized by the Court and parties, but no damages or legal interest are due ROSIE NELL LABORDE DAY thereon by SHELBY R. DAY and any claim or demand therefor be and is denied.

In reasons for judgment, the trial court noted that the language of the agreement did not order Mr. Day to withdraw funds and give them to Mrs. Day, and stated that she could obtain her portion of the funds from Honeywell simply by submitting and processing a QDRO. We agree. Her right to a 50% share of the asset was determined as of that date. Mrs. Day could have submitted a QDRO at that time or any time since then, obtained her share of the account, and invested it elsewhere if she chose. By leaving her share of the account on deposit with Honeywell, she submitted to the vagaries of the market and Honeywell’s management and must accept whatever appreciation or depreciation in value that might have occurred since then.

However, because Mr. Day specifically agreed to pay any early withdrawal penalties, we believe the trial court judgment must be modified to include this requirement, should such penalties occur when and if Mrs. Day withdraws funds pursuant to a QDRO. Therefore, Mr. Day will be required to reimburse Mrs. Day for any early withdrawal penalties she might incur in taking possession of her share of the Honeywell 401(k) account.

CONCLUSION

The judgment of the trial court is amended to order Mr. Day to reimburse Mrs. Day for any early withdrawal penalties she might incur in taking possession of her share of the assets in the Honeywell 401 (k) account. In all other respects, the judgment is affirmed. Each party is to bear his/her own costs for this appeal.

AMENDED AND AFFIRMED AS AMENDED.

      . According to his testimony, Mr. Day's last day of active service in the military was June 30, 1979. Mr. and Mrs. Day were married for 14.667 years of the 21 years he spent in the military. Retirement benefits were already being paid to Mr. Day when the couple divorced.

      . The judgment was signed May 8, 2000. The award for the arrearages represented only what had accrued during the five years preceding Mrs. Day's petition to enforce court-ordered alimony, because her entitlement to any spousal support obligations that might have accrued earlier prescribed after five years. See LSA-C.C. art. 3497.1.

      . The motion and order for appeal refers only to the judgment of October 25, 2001. The denial of a motion for new trial is not an appealable judgment, absent a showing of irreparable injury. However, the Louisiana Supreme Court has directed us to consider an appeal of the denial of a motion for new trial as an appeal of the judgment on the merits, when it is clear from the appellant’s brief that the intent was to appeal the merits of the case. Smith v. Hartford Acc. & Indem., Co., 254 La. 341, 223 So.2d 826, 828-29 (1969); Carpenter v. Hannan, 01-0467 (La.App. 1st Cir.3/28/02), 818 So.2d 226, 228-29, writ denied, 02-1707 (La. 10/25/02). Mrs. Day’s brief addresses the substantive issues decided by the July 13, 2001 judgment on the merits. Therefore, we will treat this as an appeal of that judgment.

      . Although Mrs. Day's assignments of error do not address the Honeywell 401(k) plan, she dedicated a section of her appellant brief to arguments concerning this issue and we have considered it on appeal. See LSA-C.C.P. art. 2129.

      . There is no evidence in the record concerning any Honeywell retirement benefits other than the 401 (k) plan, the judgment made no mention of any such benefits, and Mrs. Day has not addressed any such benefits in this appeal. We conclude, therefore, that her claim to such benefits has been abandoned.

      . In one case, the parties and their attorneys, relying on a case that was later legislatively "overruled,” believed that the military pension benefits were the husband’s separate property, so did not include them in the community property settlement. Moreau v. Moreau, 457 So.2d 1285 (La.App. 3rd Cir.1984).

      . This date was probably a typographical error; the divorce judgment was October 10, 1991, and Mrs. Day’s letter of November 1991 indicates that "October 10, 1991, when the divorce became final,” was the intended date. The trial court’s judgment recognizes the effective date of the divorce as the operative date for the partition of the account, thereby correcting this discrepancy. The significance of this date is that Mrs. Day is not entitled to a share of any amounts contributed after that date by Mr. Day and/or his employer. Neither party has contested that aspect of the judgment on appeal.


author: li>PEB CURIAM.

text:
    Harold VINCENT v. The STATE of Louisiana, Through the DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS.
    No. 2002 CW 2444.
    Court of Appeal of Louisiana, First Circuit.
    June 6, 2003.
    Harold Vincent, In Proper Person, Angola, Relator.
    Annette R. Seng, Baton Rouge, for Respondent State of Louisiana through the Department of Public Safety and Corrections.
    Before: CARTER, C.J., WHIPPLE and CIACCIO , JJ.

      . Retired Judge Philip C. Ciaccio is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

   li>PEB CURIAM.

Facts and Procedural History

Plaintiff, Harold Vincent, is an inmate sentenced to the custody of the Department of Public Safety and Corrections (DPSC), currently confined at Angola. On May 11, 2001, Vincent was transferred from David. Wade Correctional Center (DWCC) to Louisiana State Penitentiary at Angola (LSP). He alleges DPSC lost some of his personal property during the transfer.

On May 16, 2001, Vincent filed a lost property claim at LSP, asking that the claim be transferred to the warden at DWCC. LSP accepted Vincent’s property claim, assigning it Property Claim # LSP2001-2166. Realizing it had accepted the claim in error, LSP forwarded the claim to DWCC.

DWCC assigned Vincent’s claim docket number # WCC-2001-1489. On October 10, 2001, DWCC denied Vincent’s request for relief.

On February 22, 2002, Vincent filed suit in West Feliciana Parish against the state seeking to recover the value of his allegedly lost property. The petition raises allegations against the officials at LSP. The state responded by filing a declinatory exception of improper venue and a dilatory exception of prematurity.

On October 1, 2002, Judge George H. Ware, Jr. granted the state’s exception to venue, transferring the matter to the Nineteenth Judicial District Court. Judge Ware found that the judicial review provisions of La. R.S. 15:1177 governed Vincent’s suit, making venue exclusive to East Baton Rouge Parish. This writ application followed.

^Discussion

The issue for this court’s determination is whether inmates’ lost property claims are controlled by the Corrections Administrative Remedy Procedure (CARP) and, therefore, subject to judicial review of the record under La. R.S. 15:1177. Or, are inmates’ lost property claims tort claims, as contemplated by the Louisiana Supreme Court in Pope v. State, 99-2559 (La.6/29/01), 792 So.2d 713, and La. R.S. 15:1184 F (added in 2002), and thereby under the district court’s original jurisdiction? The mode of procedure will determine where venue is proper.

The state maintains that there are serious policy considerations to be resolved in addressing this issue. For instance, should an inmate be entitled to a full de novo trial under the district court’s original jurisdiction every time the prison laundry loses a sweatshirt? Or, is the lost property claim merely a grievance against the prison system that addresses itself to the administration of the prison sentence?

Louisiana Revised Statute 15:1171 B grants authority to the DPSC and to each sheriff to adopt administrative remedy procedures in compliance with federal law to receive, hear, and dispose of all offender complaints and grievances. In Pope, the Louisiana Supreme Court held that to the extent CARP allows the Department of Public Safety and Corrections to exercise original jurisdiction in tort actions it violates Article V, § 16A of the Louisiana Constitution, which vests district courts with original jurisdiction over all civil and criminal matters, and it is unconstitutional.

| ¿Apparently in recognition of the supreme court decision in Pope, the Louisiana Legislature added subsection F to La. R.S. 15:1184, by 2002 La. Acts No. 89, § 2, effective April 18, 2002, which provides:

The exclusive venue for delictual actions for injury or damages shall be the parish where the prison is situated to which the prisoner is assigned when the cause of action arose. Upon consent of all parties, the court may transfer the suit to a parish in which venue would otherwise be proper, (emphasis supplied)

This venue provision speaks to the district court’s original jurisdiction as opposed to appellate jurisdiction, as the supreme court in Pope already has determined that CARP cannot be used to divest district courts of their constitutional grant of original jurisdiction over all civil and criminal matters. Therefore, if the relief Vincent seeks can be properly classified as “damages,” venue is proper in the Twentieth Judicial District Court. The question remains whether the term “damages” as used in La. R.S. 15:1184 and Pope includes a claim for lost property. The jurisprudence does not definitively answer the question.

Civil matters are those that have been traditionally adjudicated in the district courts, such as the adjudication of disputes between private parties resulting in money judgments affecting only those parties. Madison v. Ward, 2000-2842, p. 9 (La.App. 1 Cir. 7/3/02), 825 So.2d 1245, 1253. Also, a claim of deprivation of a constitutionally protected right is a traditional civil matter. Id. The state argues that Vincent’s petition does not involve a claim between private parties; rather, the parties are an inmate and his jailers. The state also observes that the jailer’s obligation to hold an inmate’s property arises from its custodial relationship with the inmate, not from consent. The state maintains that if it is forced to fully litigate all | dost property claims, greater restrictions will be placed on what personal property inmates are allowed to keep in their cells.

This court observed in Madison that claims involving a vested property right or a liberty interest should not be subject to CARP. Madison, 2000-2842 at p. 10, 825 So.2d at 1254. However, the state submits that a generic lost property claim does not rise to constitutional dimensions. Neither negligent nor intentional deprivations of property violate the Due Process Clause provided that adequate state post-deprivation remedies are available. Hudson v. Palmer, 468 U.S. 517, 533, 104 S.Ct. 3194, 3204, 82 L.Ed.2d 393 (1984). In Hudson, an inmate alleged the prison intentionally destroyed certain items of his personal property. In a footnote, the court observed that Virginia had enacted both a State Torts Claim Act and an inmate grievance procedure, “both” of which are potential sources of relief for inmates. Id. 468 U.S. at 536 n. 15, 104 S.Ct. at 3205 n. 15.

In Carter v. Cain, 2001-2841 (La.App. 1 Cir. 9/27/02), 828 So.2d 1226, an inmate sought redress through CARP, alleging an item he mailed to federal court had not been delivered. Following an unfavorable response, the inmate filed a petition for judicial review with the Nineteenth Judicial District Court. Following a recommendation from the Commissioner, the district court judge rendered judgment in favor of the defendants and against the inmate. On appeal, this court observed:

Mr. Carter’s claim concerned an administrative matter and was properly brought by way of the administrative remedy procedure. The district court conducted an appropriate judicial review, and this court has appellate jurisdiction over this case.

Id. 2001-2841 at p. 3, 828 So.2d at 1228.

6In Peterson v. Toffton, 36,372 (La.App. 2 Cir. 9/18/02), 828 So.2d 160, an inmate sought punitive damages and compensatory damages from the DPSC and others for injuries he allegedly suffered in connection with disciplinary proceedings. The second circuit went through a detailed discussion of Pope and what qualifies as a tort. A civil action with respect to prison conditions or a prison suit is expressly defined as “any civil proceeding with respect to the conditions of confinement or the effects of actions by government officials on the lives of persons confined in prison.” La. R.S. 15:1181. The second circuit observed that the holding in Pope was directed at the application of CARP to traditional tort actions; actions that are not related to conditions of confinement. The injuries suffered by the inmate in Pope had nothing to do with disciplinary or administrative remedy proceedings, but were caused by an accident that occurred while performing demolition work on a separate correctional facility. Peterson’s alleged “tort” claims arose directly from the disciplinary and administrative remedy proceedings of the DPSC and not from an independent accident. The court concluded that Peterson’s complaint sought a remedy with respect to his conditions of confinement. Id. 36,372 at p. 8, 828 So.2d at 164. A ease involving injuries to a prisoner from conditions of discipline or confinement is not a traditional “civil matter” under Article V, § 16 of the Louisiana Constitution. Id. In such a case, an inmate must exhaust his administrative remedies, and the Nineteenth Judicial District Court will exercise appellate jurisdiction in its review of the DPSC decision. See id.

In Hull v. Stalder, 2000-2730 (La.App. 1 Cir. 2/15/02), 808 So.2d 829, an inmate filed a petition for judicial review in the Nineteenth Judicial District Court alleging he was being given limited access to the prison law | Jibrary. Finding the inmate’s petition failed to state a cause of action, the suit was dismissed, and the inmate appealed. This court held:

[T]he commissioner and the trial court did not have jurisdiction over Hull’s claim because he failed to exhaust administrative remedies available to him under the Corrections Administrative Remedy Procedure (CARP), La. R.S. 15:1171, et seq., prior to fifing his petition for judicial review in the district court. Because the district court had no jurisdiction, this court has no appellate jurisdiction over this matter.

Id. 2000-2730 at p. 3, 808 So.2d at 831.

The Hull court determined that the inmate’s complaint was not a tort action. Id. 2000-2730 at p. 5, 808 So.2d at 832. Similarly, this court found Hull’s library access claim was “not the type of claim traditionally cognizable in a trial court, and thus is not a ‘civil matter’ reserved for the trial court.” Id. 2000-2730 at p. 6, 808 So.2d at 833. Rather, Hull’s “petition states merely a grievance against the prison system that addresses itself exclusively to the administration of the prison.” Id.

In the instant matter, we likewise conclude that lost property claims are classic matters of prison administration or conditions of confinement. Moreover, the inmate is not raising a claim of unconstitutional deprivation of a vested property right. Thus, the grant of the motion to transfer venue was proper, as the Nineteenth Judicial District Court has appellate jurisdiction over claims brought pursuant to La. R.S. 15:1171, et seq. Because the issue of whether Vincent’s petition for judicial review is premature has yet to be addressed by the district court, we preter-mit consideration of this issue.

| sConcIusion

For the above and foregoing reasons, Plaintiffs application for supervisory writs is denied; the district court properly sustained the declinatory exception of improper venue filed on behalf of the State of Louisiana through the Department of Public Safety and Corrections.

This court does not reach the merits of the state’s dilatory exception of prematurity. Based on the documentation presented to this court, the dilatory exception of prematurity is pending.

WRIT DENIED.


author: I .DOWNING, J. It KUHN, J.,

text:
    STATE of Louisiana Through the DEPARTMENT OF SOCIAL SERVICES, Office of Family Support, Support Enforcement Services, in the Interest of A.L.W., Minor Child of L.G. v. A.P.
    No. 2002 CJ 2372.
    Court of Appeal of Louisiana, First Circuit.
    June 20, 2003.

      Parris Taylor, Baton Rouge, Counsel for Plaintiff/Appellant State of Louisiana through the Department of Social Services, Office of Family Support, et al.
    Walton J. Barnes, II, Baton Rouge, Allen J. Myles, Plaquemine, Counsel for Defendant/Appellee A.P.
    Before: KUHN, DOWNING, GAIDRY, McClendon and kline, jj.

      . Honorable William F. Kline, Jr., Judge (Retired), is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

   I .DOWNING, J.

The State of Louisiana, through the Department of Social Services, Office of Family Support Enforcement Services (DSS), appeals a judgment denying a new trial. The trial court had sustained an exception of no right of action filed by A.P., the alleged biological father of A.L.W. For the following reasons, we reverse the order dismissing the suit and remand for further proceedings.

FACTS AND PROCEDURAL HISTORY

This is a paternity and support suit. DSS instituted these proceedings on behalf of A.L.W., minor child of L.G., against A.P., the alleged biological father of A.L.W.

Before we can address the merits of this case, we must first untangle the labyrinth of court pleadings, orders, and judgments that make up the record. On July 29, 1999, DSS instituted an action to establish that A.P. was the biological father of A.L.W. DSS was already pursuing support from D.W. who acknowledged his paternity of A.L.W. ten years earlier, on April 6, 1989., A.P. filed exceptions of “No Right of Action” and “Prematurity,” which were heard and sustained on February 3, 2000. The following day, DSS filed a document in accordance with the trial court’s ruling entitled, “Motion and Order for Dismissal,” dismissing the matter “without” prejudice. This order was signed February 4, 2000, and filed into the record February 8, 2000. There is no evidence that it was served upon the parties. On March 28, 2000, the trial court signed another judgment, this | «time submitted by A.P., sustaining an exception of “No Cause of Action.” This judgment does not state whether the dismissal is “with” or “without” prejudice. The following day, March 29, 2000, A.P. submitted a “Supplemental & Amending Motion and Order for Dismissal” stating that the dismissals should reflect that the matter was dismissed “with prejudice” instead of “without prejudice.” The trial court signed this order in chambers on March 29, 2000. For some reason, the trial court signed an identical document on May 18, 2000 and had both filed into the record.

On July 28, 2000, DSS moved to vacate A.P.’s supplemental & amended order. No action was taken on this motion to vacate. On March 29, 2001, DSS petitioned to annul the judgment that proclaimed DSS’s dismissal to be “with prejudice.” On August 2, 2001, A.P. answered the petition to annul and filed a reconven-tional demand asking to annul the judgment (order) signed on February 4, 2000, alleging that the ex parte order dismissing the action “without prejudice” was a deprivation of A.P.’s rights and an ill practice pursuant to La. C.C.P. art.2004. No further action appears to have taken place on this petition to annul.

On October 1, 2001, DSS moved for a new trial on the grounds that, since the time of trial, new evidence in the form of DNA results had been obtained. The motion further stated that since notice of the judgment had never been effected, the motion for new trial was still timely. On February 6, 2002, over two years after the first hearing, the trial court ruled that it intended to dismiss DSS’s petition “with prejudice.” The trial court then denied DSS’s motion for new trial. The order granting a devolutive appeal was signed April 12, 2002, nearly one month before the trial court signed the | ¿judgment on May 2, 2002. This appeal followed. DSS did not appeal the underlying order on the exception, but appealed the judgment denying the new trial. DSS assigns the following errors.

(1) The trial court erred in maintaining defendant’s exception of no right of action, without granting leave to amend the pleadings as required by La. C.C.P. art. 934.
(2) The trial court erred through its ex parte amendment of the judgment of dismissal changing the substantive language of the judgment from “without prejudice” to “with prejudice,” in contravention of La. C.C.P. art.1951.
(3) The trial court erred in its denial of plaintiffs new trial motion based upon the peremptory grounds that the judgment rendered was clearly in contravention of law and jurisprudence and in light of newly discovered evidence per La. C.C.P. arts. 1972-73.

DISCUSSION

DENIAL OF MOTION FOR NEW TRIAL

Before we begin our analysis on the merits of this appeal, we first address the appeal of the motion for new trial rather than the underlying judgment.

“The established rule in this circuit is that the denial of a motion for new trial is not an appealable judgment absent a showing of irreparable harm.” Pittman v. Pittman, 01-2528, p. 3 (La.App. 1 Cir. 12/20/02), 836 So.2d 369, 372.

Therefore, DSS’s third assignment of error is without merit. Even so, the Louisiana Supreme Court has directed us to consider an appeal of the denial of a motion for new trial as an appeal of the judgment on the merits as well, when it is clear from the appellant’s brief that the appeal was intended to be on the merits. Carpenter v. Hannan, 01-0467, p. 4 (La. App. 1 Cir. 53/28/02), 818 So.2d 226, 228-29, writ denied, 02-1707 (La.10/25/02), 827 So.2d 1153. Accordingly, we consider DSS’s appeal of the judgment on the merits.

DSS’s RIGHT OF ACTION

DSS’s first assignment of error alleges that the trial court erred in dismissing its suit after sustaining A.P.’s exception of no right of action instead of allowing DSS to amend the petition pursuant to La. C.C.P. art. 934. We agree that the trial court erred in dismissing DSS’s petition.

Here, DSS filed an action for child support against A.P. when there was already an acknowledgment of paternity from another man, in authentic form, in the record. There was also a judgment ordering the other man to pay child support for A.L.W.

Even so, the trial court committed legal error when it sustained the exception of no right of action. La. R.S. 46:236.1(F)(1) gives DSS the right to directly establish filiation against an alleged biological father notwithstanding any legal presumption that another man is the father. In this case, DSS clearly alleged its right of action under this statute in its initial petition.

The objection of no right of action tests whether the plaintiff has a real and actual interest in the suit. Louisiana Paddlewheels v. Louisiana Riverboat Gaming Commission, 94-2015, p. 4 (La.11/30/94), 646 So.2d 885, 888. Stated another way, an exception of no right of action determines whether the plaintiff belongs to the particular class to which the law grants a remedy for the particular harm alleged. Sivils v. Mitchell, 96-2528, p. 3 (La.App. 1 Cir. 11/7/97), 704 So.2d 25, 27. Granting an exception of no right of action is appropriate when the plaintiff does not have an interest in the subject matter of the suit or the legal capacity to proceed. Id. La. C.C.P. 6art. 931 allows introduction of evidence to support or controvert this exception. Id.

Here, DSS has a clear statutory right to seek to establish A.P.’s paternity and support obligation if it is in the child’s best interest, which right was alleged in DSS’s petition. The statutory authority for DSS to pursue direct civil action is in La. R.S. 46:236.1(F)(1) which provides the following:

The department, except when it is not in the best interest of the child, may without the necessity of written assignment, subrogation, tutorship proceedings, or divorce proceedings, take direct civil action, including action to establish filiation against an alleged biological parent notwithstanding the existence of a legal presumption that another person is the parent of the child solely for the purpose of fulfilling its responsibility under this Section, ... A separate and distinct cause of action in favor of the department is hereby created, and suits brought this provision need not be ancillary to or dependent upon any other legal proceeding. (Emphasis added.)

We do not rule on the legality, constitutionality, or scope of any “doctrine of dual paternity” here. But we do conclude that DSS has a right to allege in its petition and to come forward with evidence to establish why it is in the best interest of the child to establish paternity even though another man already acknowledged paternity. At such hearing the trial court must determine whether DSS can establish that proceeding under this statute is in the best interest of A.L.W. Only upon such showing does DSS have a right of action under La. R.S. 46:236.1(F)(1).

This assignment of error has merit. Accordingly, DSS asks to be allowed to amend its pleading in order to state a right of action. We are obligated to do so pursuant to La. C.C.P. art. 934 if the grounds for objection can be removed. We therefore remand for a hearing on whether DSS can remove the grounds for the exception by showing that this action is in the best interest of the child.

\ .CHANGING THE JUDGMENT

DSS’s second assignment of error alleges that the trial court erred by changing the language of the judgment of dismissal from “without” prejudice to “with” prejudice ex parte. We agree.

Following the hearing on February 3, 2000, DSS filed an order of dismissal on February 4, 2000 reciting that the court sustained the exceptions of no right of action and prematurity and dismissed the case without prejudice. This order was signed by the court and filed into the-record, but was not served upon the parties. It is well settled that an order putting an end to the litigation is the same as a judgment. See Syndics of J. Brandt & Co. v. Shaumburgh, 1 Mart. (n.s.) 698, 1823 WL 1435 (La.1823). Therefore, once this order was signed by the trial court and filed into record, this put an end to the litigation. Thus, this judgment became final pursuant to La. C.C.P. art.1911.

After its initial judgment, the trial court signed three more judgments ex parte purporting to rule on the exceptions heard on February 3, 2000:

(1) On March 28, 2000, defendants submitted an order memorializing that the exception of “no cause of action” was sustained. This judgment does not mention whether the matter was dismissed “with” or “without” prejudice. And the judgment refers to “no cause of action,” an exception not reflected in the record. The trial court signed this judgment, and the clerk of court mailed a certified copy to the parties on April 4, 2000.
(2) On March 29, 2000, defendants filed an order for dismissal entitled, “Supplemental and Amending Motion and Order for Dismissal,” stating that the dismissal of the litigation must be “with prejudice” instead of “without prejudice” as memorialized in the March 28th document. The trial court signed this document on March 29,2000.
|R(3) On May 18, 2000 the trial court signed an identical document showing that the matter was dismissed with prejudice.

These judgments are absolute nul-lities and are without legal effect. Hebert v. Blue’s Auto and Truck Parts, 00-2154, pp. 3-4 (La.App. 1 Cir. 12/28/01), 804 So.2d 953, 955. The February 4, 2000 Motion and Order for Dismissal was a final judgment. A final judgment may not be amended to effect a substantive change except on application for new trial, action for nullity, or timely appeal. See Id. The Louisiana Supreme Court has also recognized a jurisprudential exception that, on its own motion and with the consent of the parties, the trial court may substantively amend a judgment. Id. None of these procedures were employed in this case.

There are certain circumstances where judgments can be amended ex parte. La. C.C.P. art.1951, addressing amendment of judgment, permits an ex parte amendment of a final judgment for limited purposes:' (1) to alter the phraseology of the judgment, but not the substance; or (2) to correct errors of calculation. It should be noted that the trial court must grant a new trial to amend. The trial court cannot, as here, deny a motion for new trial and amend a judgment.

In the instant case, the modification by the trial court clearly exceeds the parameters described in La. C.C.P. art. 1951. The amendment of the original judgment directly affected the rights of DSS. Changing “without prejudice” to “with prejudice” is a substantive change. See Hebert, 00-2154 at pp. 3-4, 804 So.2d at 955. Thus, the amended judgment and the attempt to amend the original judgment are absolute nullities. Id. The February 4, 2000 judgment is final and would be in effect were we not to reverse it today. The second assignment of error challenging the ex parte judgments has merit.

| .DECREE

The only valid judgment, the judgment dated February 4, 2000, sustaining the exceptions of no right of action and prematurity is hereby reversed. This case is remanded for further proceedings. Costs in the amount of $582.00 are assessed equally between the State of Louisiana through the Department of Social Services, Office of Family Support, Support Enforcement Services and A.P.

REVERSED AND REMANDED.

KUHN, J., concurs with reasons.

It KUHN, J.,

concurring in part.

I write separately simply to underscore that the State’s task of amending its petition to state a claim under La. C.C.P. art. 934 in a case such as this is a very difficult — if not insurmountable — one.

It is clear that a mother may seek to establish the paternity of an alleged biological father despite the fact that another man has acknowledged his paternal relationship with the child. See e.g., Yoland F.B. v. Robert D.R., 2000-958, p. 3 (La.App. 3d Cir.12/6/00), 775 So.2d 1107, 1109. Obviously, the mother’s interest in protecting the potential rights of her child, such as inheritance rights, is in the best interest of the child and, therefore, warrants such an action. But it appears that the only interest the State has in disrupting the already-established relationship between this child and the only man she knows to be her father is its pecuniary concern of finding an additional source from which to collect revenue.

| sin this case, paternity has already been established. Unless the mother or the child desires to question the validity of that paternity, permitting the State to come back into court and seek revenue from another individual overlooks the familial relationship and potentially permits disruption of developing bonds between a daughter and her father. This surely cannot be in the best interest of the child.

      . Pursuant to La. R.S. 46:236.1(F)(2), the proceeding below is not open to inspection and publication of a filiation proceeding is prohibited. Accordingly, we identify the alleged biological father by the initials A.P.

      . D.W. is the listed father on A.L.W.’s birth certificate issued August 19, 1989.

      . A Petition with Rule Nisi was filed by DSS on October 21, 1992.

      . On April 27, 1993, D.W. was ordered to pay $ 180/month child support.

      . The exception of prematurity was not ruled upon here.

      . This judgment was served on April 4, 2000.

      . Although the motion for appeal was signed nearly one month before the judgment, this procedural defect was cured once the trial court signed the judgment. See Overmier v. Traylor, 475 So.2d 1094 (La.1985).

      . If the dismissal is maintained after trial of plaintiff’s rule to show cause, plaintiff’s remedy is then by appeal from the judgment refusing to set aside the dismissal after the contradictory hearing. Simmons v. Dixon, 306 So.2d 67, 70 (La.App. 1 Cir.1974).

      . When an action is dismissed for procedural insufficiency and not on the merits, it should be dismissed without prejudice to its renewal because no adjudication on the merits has taken place. Simmons v. Dixon, 306 So.2d 67, 69 (La.App. 1 Cir.1974). When the judgment is silent as to whether it is being dismissed with or without prejudice, the dismissal must be without prejudice. Id.