author: I i>KUHN, J. I .WHIPPLE, J.,

text:
    COVINGTON PONTIAC-BUICK-GMC TRUCKS, INC. and Eddie Pablovich v. AAA SEWER & WATER FABRICATION & SERVICE, LLC, David Guidry, Abe Insurance Company and Xyz Insurance Company.
    No. 2002 CA 2676.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 13, 2004.
    Writ Denied May 7, 2004.

      Robert C. Lowther, Jr., Covington, for Plaintiffs/Appellants, Covington Pontiac-Buick-GMC Trucks, Inc. and Eddie Pablo-vich.
    Julian J. Rodrigue, Jr., Covington, for Defendant/Appellee, St. Tammany Parish Clerk of Court.
    Before: WHIPPLE, KUHN and McDonald, jj.
   I i>KUHN, J.

Plaintiffs-appellants, Covington Pontiac-Buick-GMC Trucks, Inc. and Eddie Pablo-vich (collectively Covington Pontiac), appeal the trial court’s dismissal of their rule to traverse answers filed by Malise Prieto, the St. Tammany Parish Clerk of Court (the clerk of court), in response to the garnishment interrogatories with which she was served. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

Covington Pontiac is the judgment creditor of defendants, AAA Sewerage and Water Fabrication and Service, LLC (AAA) and David Guidry. In an attempt to execute a judgment, Covington Pontiac conducted a judgment debtor examination, which revealed that funds in a community property proceeding between David Gui-dry and his former wife, Cynthia, were held in the registry of the Twenty-second Judicial District Court.

On October 15, 2001, Covington Pontiac filed a petition for garnishment under a writ of fieri facias, naming the clerk of court as garnishee. Averring that the clerk of court was in possession of the money held in the court registry in the matter entitled, Guidry v. Guidry, docket number 98-13642, (the Guidry community property proceeding) in which David Gui-dry had an undivided interest, Covington Pontiac alleged that the clerk of court was indebted to its judgment debtor. On October 19, 2001, a judgment was signed naming the clerk of court as a garnishee and ordering her to answer the garnishment interrogatories. The clerk of court was served the petition, citation, and interrogatories on October 29, 2001.

The clerk of court subsequently filed sworn answers to the garnishment interrogatories. Urging the clerk of court’s responses were erroneous, Coving-ton Pontiac filed a rule to traverse. After a hearing, in which testimonial and documentary evidence was adduced, the trial court found that the clerk of court’s |3answers to the garnishment interrogatories were not erroneous and rendered a judgment, dismissing Covington Pontiac’s rule to traverse. This appeal followed.

DISCUSSION

A garnishment proceeding is a separate and distinct proceeding from the original suit and is between different parties. La. C.C.P. arts. 2411-2417; Ransome v. Ransome, 2001-2361, p. 8 (La.App. 1st Cir.6/21/02), 822 So.2d 746, 754. It is nothing more than a streamlined legal process for obtaining the seizure of property of a judgment debtor in the hands of a third party. All Star Floor Covering, Inc. v. Stitt, 2000-2049, p. 4 (La.App. 1st Cir.11/14/01), 804 So.2d 705, 708, writs denied, 2002-0406, 2002-0421 (La.4/19/02), 813 So.2d 1085, 1088.

After the issuance of a writ of fieri facias, a judgment creditor may, through a petition for garnishment naming a third person as garnishee, require the garnishee to declare under oath what property he has “in his possession or under his control” belonging to a judgment creditor. La. C.C.P. art. 2411A; Rapier v. Harris, 614 So.2d 301 (La.App. 4th Cir.1993). The garnishment seizure is effective upon service of the petition, citation, and interrogatories. La. C.C.P. art. 2411B. Other than as is statutorily applicable to garnishments of wages, a garnishment shall not be continuing in nature, and the garnishee need only respond as to property of the judgment debtor that the garnishee has in his possession or under his control at the time the garnishment interrogatories are served on him. La. C.C.P. art. 2411C.

Where the garnishee’s answers admit that he does indeed hold something belonging to the debtor, a garnishment judgment is then entered, ordering the | ¿garnishee to deliver the thing to the sheriff. La. C.C.P. art. 2415; All Star Floor Covering, Inc., 2000-2049 at pp. 4-5, 804 So.2d at 708. If, on the other hand, the garnishee denies possession of any of the judgment debtor’s property, the judgment creditor may file a contradictory motion traversing the answer. La. C.C.P. art. 2414; Ransome, 2001-2361 at p. 8, 822 So.2d at 754.

On appeal, Covington Pontiac suggests the trial court erred in dismissing its rule to traverse because the evidence at the hearing showed the clerk of court’s answers to its interrogatories were erroneous and misleading.

The seminal facts show the following. The money held in the court registry in the Guidry community property proceeding was the subject of competing claims. On June 20, 2001, the Division G trial judge signed an order in the Guidry community property proceeding, directing the sum of $88,683.74 be placed in the court registry. That same day, the Division G trial judge also signed a consent judgment, ordering $44,683.74 of the deposited money disbursed to Cynthia Guidry and the remaining $44,000.00 to David Guidry.

Nine days prior to rendition of the Division G consent judgment between the Gui-drys, on June 11, 2001, Unicorn Nursery Inc. (Unicorn), had filed a petition in Division B of the Twenty-second Judicial District Court, averring that Cynthia Guidry d/b/a AAA was its judgment debtor, naming the clerk of court as garnishee, ordering an answer to a single garnishment interrogatory, and requesting a writ of attachment on the deposited money. The writ subsequently issued on June 11, 2001, which expressly included “one half of those funds presently on deposit with [the clerk of court]” held in the court registry in conjunction with the Guidry community property proceeding.

On June 20, 2001, after the Division G trial judge had signed the consent judgment addressing the disbursal of the money held in the court registry, Cynthia Guidry apparently learned of the pending Division B garnishment proceeding, and | Kfiled a motion in the community property proceeding, requesting that the Division G trial court “freeze” the money held in the court registry. This motion was granted by the Division G trial judge. Thus, the last order of Division G on June 20, 2001, stayed the consent judgment of disbursal signed earlier that day; and ordered a “freeze” on the money held in the court registry. The contradictory hearing, which followed on August 9, 2001, resulted in the Division G trial judge’s express order stating that the money held in the court registry was not to be disbursed until further order of the court.

Unaware of the Division G order of August 9, 2001, precluding disbursal of the money in the court registry, on September 25, 2001, on a joint motion of Unicorn and David Guidry, the Division B trial judge signed an order, which directed disbursal of a portion of the money in satisfaction of Cynthia Guidry d/b/a AAA’s debt to Unicorn. But on September 26, 2001, the Division B trial judge, having learned of the August 9, 2001, Division G order, issued another order, which vacated her September 25, 2001 order of disbursal to Unicorn and ordered that the money in the court registry be “frozen” until further order of the court.

On October 23, 2001, eight days after Covington Buick filed its petition for garnishment but six days before service of the interrogatories was made on the clerk of court, the Division G trial court addressed the merits of David Guidry’s interest in the money on deposit in the court registry. In its written reasons, after noting that the prior, June 20, 2001, consent judgment between the Guidrys had settled all issues between them, the Division G trial judge concluded that it lacked authority to maintain Cynthia Guidry’s request for a stay and signed a judgment | fidisbursing $46,500.00 of the money held in the court registry to David Guidry. The October 23, 2001 judgment specifically ordered that the clerk of court “disburse the sum of $46,500.00 ... to David C. Guidry.”

It is axiomatic that a district court clerk of court deposits and withdraws sums into the court’s registry in accordance with orders issued by the district court. See La. R.S. 13:760 (providing immunity from liability to clerks of court who perform any act or issue any order in conformity with the written order or judgment of any judge of a court); see also La. R.S. 13:476 (providing that specified deposits made into the court registry shall be made and withdrawn by the clerk of court only in accordance with the provisions of the order or judgment of the court having jurisdiction).

In her sworn answers to Covington Pontiac’s garnishment interrogatories filed on November 6, 2001, the clerk of court denied that she had in her possession or under her control any property or funds belonging to David Guidry, while noting that the sum of $93,749.04 had previously been on deposit in the court registry in the Guidry community property proceeding. The clerk of court’s answers expressly stated that pursuant to a court order of disbursement, signed by the trial judge of Division G on October 23, 2001, $46,500.00 of the $93,749.04 previously on deposit in the court registry had been released to David Guidry. The record clearly establishes that on October 23, 2001, when the Division G trial court ordered disbursal of $46,500.00 to David Guidry, the clerk of court had not 17yet been served Covington Pontiac’s petition, citation, and interrogatories. Under La. C.C.P. art. 2411B, the garnishment seizure was not effective until October 29, 2001, which is the date the clerk of court was served with Covington Pontiac’s petition, citation, and interrogatories. Because La. C.C.P. art. 2411C imposes no duty of a continuing nature on the garnishee, requiring only that she respond “as to the property ... in [her] possession or control at the time the garnishment interrogatories were served on [her],” mindful that the clerk of court acted pursuant to a court order of disbursement which was issued before the garnishment seizure was effectuated, the record duly establishes that the clerk of court’s answers were not erroneous. Thus, the trial court correctly determined that the answers provided by the clerk of court were correct.

Moreover we note, under the facts presented in this case, the clerk of court could not be liable to Covington Pontiac. According to the provisions of La. R.S. 13:760:

No clerk of court and no deputy of such officer who performs any act or issues any order in conformity with the written order or judgment of any judge of a court in this state shall be liable in either his individual or official capacity to any person, firm, or corporation for any damage as the result of such action.

See also La. R.S. 13:476.

| sIt is abundantly clear that the clerk of court disbursed the money to David Gui-dry “in conformity with the written order ... of [a] judge of [the Twenty-second Judicial District Cjourt,” and so advised Covington Pontiac in her sworn answers. Thus, under La. R.S. 13:760 the clerk of court cannot be held hable to Covington Pontiac, in either her individual or official capacity, for any damage the judgment creditor allegedly may have sustained as the result of the clerk of court’s disbursal of $46,500.00 from the court registry withdrawn in accordance with the October 23, 2001 order of the Division G trial court.

In the trial court, and on appeal, the parties assert the issue before the court is who is the proper party to make garnishee when a judgment creditor seeks to seize money deposited in the court registry in which the judgment debtor has an interest. Although Covington Pontiac named her as garnishee, citing La. R.S. 13:474, the clerk of court contends that hers is merely a ministerial, administrative position — akin to a bookkeeper — and that it is either Hibernia National Bank (as the fiscal agent appointed by the district court judges, see La. R.S. 13:475), who has actual possession over the money or the district court judges, who have control over the property on deposit in the court registry, that is properly made garnishee when a judgment creditor seeks to seize money held in the court registry. Because on the effective date of Covington Pontiac’s seizure, the deposited money was duly subject to the trial court’s order of disbursal, we find it unnecessary to address this, and we pre-termit such a discussion.

For these reasons, we find that Coving-ton Pontiac’s rule to traverse was correctly dismissed.

DECREE

The trial court’s judgment, dismissing Covington Pontiac’s rule to traverse the answers to garnishment interrogatories provided by the clerk of court, is ^affirmed. Appeal costs are assessed against Covington Pontiac-Buick-GMC Trucks, Inc. and Eddie Pablovich.

AFFIRMED.

WHIPPLE, J., dissents with reasons.

I .WHIPPLE, J.,

dissenting.

As noted by the majority, the seizure of property belonging to a judgment debtor and under the possession and control of the garnishee is effective upon service of the garnishment petition, citation and interrogatories. LSA-C.C.P. art. 2411(B). Moreover, other than as is statutorily applicable to garnishments of wages, a garnishment is not continuing in nature, but, rather, the garnishee need only respond as to property of the judgment debtor in his possession or under his control at the time the garnishment interrogatories are served upon him. LSA-C.C.P. art. 2411(C).

In finding no error in the clerk of court’s answers to garnishment interrogatories that she did not have possession of any funds belonging to David Guidry, the majority notes that on October 23, 2001, when the Division G judge ordered disbursal of $46,500.00 to David Guidry, the clerk of court had not yet been served with Cov-ington Pontiac’s petition, citation and interrogatories. However, while the garnishment interrogatories had not yet been served upon the clerk of court on October 23, 2001, when the Division G judge ordered disbursal of that sum to David Gui-dry, the garnishment interrogatories had in fact been served on the clerk of court prior to her actions in actually releasing those funds on October 30, 2001.

12Thus, on the date the clerk of court was served with the garnishment interrogatories, ie., October 29, 2001, she had not yet disbursed any sums to David Guidry, and those sums were in fact in the registry of the court. In fact, in her answers to garnishment interrogatories, the clerk of court acknowledged that on the date she was served with the garnishment interrogatories, the sum of $93,749.04 was on deposit in the registry of the court, a sum which included the $46,874.52 that she later released to David Guidry. Nonetheless, she contended that she did not have any property of David Guidry in her possession or control as clerk of court on the date the garnishment interrogatories were served upon her, arguing that the funds in the registry of the court were instead in the possession of the Twenty-second Judicial District Court and/or Hibernia National Bank.

It is clear that at the time the garnishment interrogatories were served upon the clerk of court, funds belonging to David Guidry were in fact on deposit in the registry of the court. As such, pursuant to LSA-C.C.P. art. 2411(B), those funds were effectively seized on October 29, 2001, when the garnishment were served upon the clerk, of court, who, pursuant to LSA-C.C.P. art. 2411(C), had a duty to declare her possession of those funds in her answers to interrogatories unless, as she argues, she, as clerk of court, exercises no possession or control over any sums on deposit in the registry of the court.

Accordingly, I disagree with the majority’s contention in footnote 5 of the majority opinion that the issue of “who is the proper party to make garnishee when a judgment creditor seeks to seize money deposited in the court registry for which the judgment debtor has an interest” is inapposite. Rather, it is the crucial determination to be made in determining.whether the clerk of court’s answers, to garnishment interrogatories, denying possession I aor control of funds belonging to David Guidry that were on deposit in the registry of the court at the time the garnishment were served upon her, were erroneous and should have been traversed.

The trial court in the instant matter determined that the clerk of court did not have custody or control over funds held in the registry of the court and, thus, that the clerk of court was not a proper garnishee. Covington Pontiac contends on appeal that this finding was in error. I agree.

The test of a garnishee’s liability to the judgment creditor is whether the garnishee has in his possession or under his control the principal debtor’s property, funds or credits for the recovery of which the debtor has a present, subsisting cause of action. LSA-C.C.P. art. 2411; All Star Floor Covering, Inc., 2000-2049 at p. 4, 804 So.2d at 708.

In the court below, the clerk argued that pursuant to LSA-R.S. 13:474, the district judges of the Twenty-second Judicial District Court had the authority to designate the fiscal agent and depository of all monies received by the court, and that the bank so designated as the fiscal agent shall be constituted the “registry of the court.” She noted that the registry of the court for the Twenty-second Judicial District Court is Hibernia National Bank.

The clerk further averred that pursuant to LSA-R.S. 13:475(A), the only responsibility of the clerk of court with regard to the registry of the court is to keep a record of the registry of court, indexing every order or judgment that orders either a deposit into or a withdrawal from the registry of court, a duty which she characterized as “nothing more than a bookkeeper” function. Thus, the clerk of court contended that funds held in the registry of the court were not in her possession, but rather were in the possession of Hibernia. Consequently, she contended that she was not a Rproper garnishee and that service of the garnishment interrogatories on her office did not effect a seizure of the funds in the registry of the court. The trial court (and the majority herein) agreed.

However, in addition to the duties outlined in LSA-R.S. 13:475, the clerk has further responsibilities with regard to funds held in the registry of the court. Pursuant to LSA-R.S. 13:476, deposits into the registry of the court shall be made “by the clerk of court in the manner directed by the judge of the district, or by the court of superior jurisdiction” and withdrawals from the registry of court shall be made “only in accordance with the provisions of the order or judgment of the court having jurisdiction.”

Additionally, pursuant to LSA-R.S. 39:1211, the clerk is a “local depositing authorit[y],” and, as such, is required to deposit in the bank selected as the clerk’s fiscal agent “[a]ll funds deposited in the registry of any court or coming into the hands of the clerk of court in any judicial proceedings and not belonging to such officer.” LSA-R.S. 39:1231. Thus, I disagree with the position that the clerk of court’s only duty with regard to funds held in the registry of the court is the “bookkeeper” function of maintaining a record of the registry of the court. Rather, the clerk of court is also responsible for depositing and withdrawing sums held in the registry of the court, in accordance with the court’s orders, and, accordingly, exercises some possession and control over those funds.

In a case with some similarities to the instant matter, the Louisiana Supreme Court recognized that a valid attachment may be made as to property held by the clerk of court through a garnishment proceeding | ñnaming the clerk of court as garnishee. Whitney Central Trust & Savings Bank v. Norton, 157 La. 199, 206, 102 So. 306, 309 (1924). In Norton, the plaintiff bank filed suit in civil district court, naming the clerk of criminal district court as garnishee, and caused an attachment to be issued as to certain funds held by the clerk of the criminal district court. Norton, 157 La. at 201, 102 So. at 307. However, despite the attachment proceedings, the clerk of the criminal district court released the funds to the judgment debtor, relying upon a later-rendered order of the criminal district court. Norton, 157 La. at 203, 102 So. at 308.

In holding that the garnishment and attachment were valid, the Court deemed money held by a court to be in the possession of the clerk of court as an officer of the court, although acknowledging that the possession by the clerk of such funds was subject to the orders of the court. Norton, 157 La. at 207,102 So. at 309; see also Samuels v. Parsons, 146 La. 262, 270, 83 So. 548, 551 (1919)(Clerk of court is ex officio custodian of funds coming into the registry of the court). Noting that the money at issue had been lawfully seized under the attachment and garnishment naming the clerk of court as garnishee, the Court held that when the clerk of court paid the money over to the judgment debtor, he did so at his peril. Norton, 157 La. at 207, 102 So. at 309. Notably, the fact that the clerk of court was acting pursuant to an order of the criminal district court did not protect the clerk where the garnishment proceedings had been instituted against him prior to the rendition of the subsequent order of disbursal. See Norton, 157 La. at 207, 102 So. at 309.

Additionally, the particular facts of this case support a finding that the clerk exercised, at the very least, some possession and control over the funds held in the registry of the court. Specifically, the funds held in the registry | fiof the court in the Guidry v. Guidry community property proceeding were paid to the St. Tammany Parish clerk of court, who then deposited the funds into the account of the registry of the court. Additionally, the account established at Hibernia National Bank as the registry of the court is entitled “St. Tammany Parish Clerk of Court,” and the signatories on the account are Malise Prie-to, the clerk of court, and two of her employees. Withdrawals from the registry of the court are made by a Hibernia employee at the direction of the clerk of court, albeit only as set forth in an accompanying judgment of disbursal. Notably, Hibernia National Bank has no independent authority to release funds held in the registry of the court account.

Considering the above jurisprudence, as well as the particular facts of this case, I conclude that the trial court erred in finding that the clerk had no control over the funds held in the registry of the court. Rather, as did the Court in Norton, I would conclude that on the date the garnishment interrogatories were served upon her, the clerk had in her possession and under her control, as an officer of the court, the funds held in the registry of the court, although her possession and control of those funds was not absolute, in that her actions with regard to those funds were subject to the orders of the court.

-Accordingly, I would likewise conclude that the trial court erred in dismissing Covington Pontiac’s rule to traverse the answers to garnishment interrogatories on the basis that the clerk did not have possession or control over the funds held in the registry of the court and, thus, that the clerk was not a properly named garnishee.

Additionally, I find no merit to the argument that the clerk is entitled to immunity pursuant to LSA-R.S. 13:760 under the facts presented herein. Under certain circumstances, a clerk of a district court may be liable for [7negligent acts in the performance of the duties of his office. See LSA-R.S. 13:758; LSA-R.S. 42:1441(A) & (B); LSA-R.S. 42:1441.2; LSA-R.S. 13:5108.1(3)(b). However, pursuant to LSA-R.S. 13:760, a clerk of court shall not be liable when he or she “performs any act or issues any order in conformity with the written order or judgment of any judge of a court in this state.”

On appeal, the clerk of court argues that her authorization of the release of the funds in the .registry of the court to Mr. Guidry was an act in conformity with the October 23, 2001 written order of the Division “G” judge, ordering disbursal of the funds to Guidry. Thus, she contends that she is protected from liability pursuant to LSA-R.S. 13:760. However, I note that in acting pursuant to the October 23, 2001 order of disbursal, the clerk ignored both the order in the garnishment proceeding naming her as garnishee and the resulting legal consequences. Stated simply, her employee ignored the garnishment seizure of those funds effected, pursuant to LSA-C.C.P. art. 2411(B), by the service of the garnishment interrogatories upon her. Once the petition of garnishment and accompanying order naming the clerk of court as garnishee were served upon the clerk of court, the seizure of the funds at issue was effected.

Clearly, as evidenced by the letter written to counsel for Guidry and Unicorn Nursery, the clerk of court was aware that the deposited funds were subject to seizure in that she (through her employee) had indicated that she was unable to release the funds -pursuant to the October 23, 2001 order, due to the previously filed petition for garnishment and resulting seizure of those funds. Nonetheless, the clerk’s office employee chose to ignore the previous orders issued with regard to these funds.

|sAlthough there is a paucity of jurisprudence interpreting the immunity granted by LSA-R.S. 13:760, I would conclude that this provision will not protect a clerk of court where the clerk, in honoring one order of the court, specifically ignores a valid seizure of those funds effected by service of the garnishment interrogatories upon her. Therefore, I would conclude that LSA-R.S. 13:760 does not protect the clerk of court from obligations as garnishee herein or from her employee’s actions in authorizing the release of the funds at issue to Guidry in contravention of the prior properly instituted garnishment proceedings and the previously perfected garnishment seizure.

Thus, in my view, the judgment of the trial court dismissing Covington Pontiac’s rule to traverse garnishment interrogatories should be reversed. Accordingly, I respectfully dissent.

      . The judgment in a traversal of answers to interrogatories dismissing the rule is a final disposition of the controversy between the plaintiff and the garnishee. The judgment is conclusive as to those parties, leaving no other remedy or proceeding in the lower court against that particular garnishee. Carroll v. Wallace, 1 McGl. 9 (La.App.1881). As such, it is a judgment subject to immediate appeal, see Carroll, 1 McGl. at 9; see Rapier v. Harris, 614 So.2d 301 (La.App. 4th Cir.1993); see also Elizey Marine Supplies, Inc. v. Taylor, 237 So.2d 706, 707 (La.App. 4th Cir.1970), and, therefore, properly before this court.

      . According to Cynthia Guidry, Unicorn is a corporation owned and operated by her ex-husband's business partner. Noting that only her interest in the money held in the court registry was at issue, Cynthia Guidry averred that it was merely one day before the Guidrys appeared in court in the proceeding that resulted in the consent judgment in which they agreed to the distribution of their former community property that Unicorn chose to file its petition naming the clerk of court a garnishee and seeking to attach the money in the court registry.

      . Between June 20, 2001, when the Division G trial court initially ordered $88,638.74 be placed in the registry and (by consent of the parties) $44,000.00 be disbursed to David Guidry, and October 23, 2001, when it ultimately ruled on the merits of David Guidry's interest in that money, a $5,000.00 deposit belonging to the Guidrys’ former community was made into the court registry. Thus, the amount disbursed to David Guidry in accordance with the October 23, 2001 order reflects his one-half interest in the deposit and is, therefore, $2,500.00 greater than the disbursed amount ordered in the June 20, 2001, consent judgment.

      . Apparently accounting for interest which accrued on the money while it was in the court registry, see La. R.S. 39:1231B, the clerk of court's sworn answer notes $46,874.52 as the exact amount disbursed pursuant to the October 23, 2001.

      . Covington Pontiac’s reliance on Whitney Central Trust & Svgs. Bank v. Norton, 157 La. 199, 102 So. 306 (1924), is misplaced. In Norton, the civil district court rendered a judgment dismissing the rule to quash a writ of attachment and garnishment against the criminal clerk of court "without prejudice to the right of the clerk of the criminal court to retain the money attached until final disposition of the criminal proceedings ... at which time, upon proper order, the clerk of said court will deliver the money in controversy to the civil sheriff to await final disposition of this case.” 157 La. at 202-03, 102 So. at 307. When the clerk of the criminal court thereafter delivered the money to the criminal defendant/civil debtor via an ex parte order, it was "in utter disregard of the seizure of the money under the attachment proceedings.” 157 La. at 203, 102 So. at 308. But the order that the criminal clerk violated was one of a district court judge which specifically directed that, upon proper order, the money held in the registry (for use as evidence in the criminal proceeding) he delivered to the civil district court for final disposition. Thus, in failing to conform to the previous order of the district court, the clerk of court acted at his peril. 157 La. at 207, 102 So. at 309. In this case, the "orders” addressing the money in the registry that Covington Pontiac suggests the clerk "ignored” were a judgment that did not in any manner address money that may have been held in the court registry and a writ of seizure and sale issued by a deputy of the clerk of court; a district court judgment pronouncing a ruling that addressed the money in the court registry was not among those orders. Thus, Norton is distinguishable from the facts presently before us.

      . I note that the judgments discussed above in the instant matter ordered "the clerk of court” to either deposit or disburse the funds held in the registry of the court. In fact, this procedure was necessary in that the named signatory of the account of the registry of the court at Hibernia is Malise Prieto, clerk of court (and two of her employees).

      . Likewise, I would not find that the clerk of court’s actions in ignoring the garnishment proceedings and seizure of the funds at issue were discretionary or policy-making acts for which she could claim immunity pursuant to LSA-R.S. 9:2798.1. The clerk simply did not have the discretion to ignore the order instituting garnishment proceedings against her and the previously perfected seizure of those funds.


source: Caselaw Access Project

author: 1,KUHN, J.

license: Public Domain

text:
    SIMONS PETROLEUM, INC. v. Dane FALGOUT, Sales Tax Collector, for the Sales & Use Tax Department of the Pointe Coupee Parish Police Jury.
    No. 2003 CA 0610.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 23, 2004.

      Stephen Myers, Lafayette, Counsel for PlaintiffAppellant Simons Petroleum, Inc.
    Frederick Mulhearn, Baton Rouge, Counsel for Defendant/Appellee Pointe Coupee Parish Police Jury through its Sales Tax Department.
    Before: WHIPPLE, KUHN, and MCDONALD, JJ.
   1,KUHN, J.

Appellant-taxpayer, Simons Petroleum, Inc. (Simons Petro), appeals the grant of a summary judgment affirming the sales tax assessment issued by appellee-tax collector, Pointe Coupee Parish Police Jury through its Sales Tax Department (Pointe Coupee Parish), and awarding the tax collector additional taxes on its reconventional demand plus interest. The tax collector has answered the appeal. We amend and, as amended, affirm.

I. PROCEDURAL BACKGROUND

Simons Petro was notified in a formal assessment letter issued by Pointe Coupee Parish’s Sales Tax Director on December 14, 2000, that it owed unpaid sales tax, interest, and penalties for January 1, 1997 through March 31, 1999. The letter advised Simons Petro to either pay the total assessment or to remit the assessed amount under protest and file a lawsuit for recovery of the remitted amount.

On January 4, 2001, Simons Petro filed this lawsuit to recover its payment of $86,135.50, which in its subsequently-filed answer Pointe Coupee Parish admitted was timely remitted by the taxpayer. Joined with Pointe Coupee Parish’s answer was a reconventional demand, seeking an award of attorney fees. Simons Petro filed a motion to strike that reconventional demand, which was granted by the trial court.

Pointe Coupee filed a second reconven-tional demand, again averring entitlement to an award of attorney fees, but also seeking additional taxes. According to the allegations of the tax collector’s second reconventional demand, Simons Petro had made sales of off road diesel fuel in Pointe Coupee Parish | ¡{totaling $2,610,265.94, but had not remitted any local sales tax on the transactions. Stating that its formal assessment letter of December 14, 2000, incorrectly calculated the tax rate at 2%, Pointe Coupee Parish averred that application of the full parish-wide sales tax rate in effect on the dates of the sales transactions resulted in an additional tax, penalties, and interest for the off road diesel fuel sales transactions.

Both the taxpayer and tax collector filed cross motions for summary judgment. Prior to the hearing, Simons Petro filed peremptory exceptions. After a hearing, the trial court denied Simons Petro’s motion for summary judgment and concluded that Pointe Coupee Parish was entitled to the relief it requested. The signed judgment in favor of the tax collector expressly dismissed Simons Petro’s lawsuit, affirmed the tax collector’s December 14, 2000 assessment of $86,135.50, and awarded additional taxes of $18,080.42 plus interest at the taxpayer’s costs. This appeal followed.

On appeal, Simon Petro contends the trial court erred in granting summary judgment in favor of Pointe Coupee Parish because the assessed tax violates a provision in the Louisiana Constitution, which prohibits political subdivisions from levying a tax on motor fuel. Pointe Coupee Parish’s answer to this appeal raises the issue of the tax collector’s entitlement to attorney fees.

II. SUMMARY JUDGMENT

Appellate courts review summary judgments de novo using the same criteria that govern the trial judge’s consideration of whether a summary judgment is appropriate. Guillory v. Interstate Gas Station, 94-1767, p. 5 (La.3/30/95), 653 So.2d 1152, 1155. The summary judgment procedure is favored and shall be ^construed to accomplish the just, speedy, and inexpensive determination of actions. La. C.C.P. art. 966(A)(2). A motion for summary judgment is properly granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B).

A. Effect of Filed Peremptory Exceptions

The trial court did not expressly rule on the peremptory exceptions filed by the taxpayer objecting to tax collector’s second reconventional demand. When a trial court judgment is silent in ruling on an exception, it is presumed that the trial court overruled it. Bogalusa Community Medical Center v. Batiste, 603 So.2d 183, 187 (La.App. 1st Cir.1992); R.A.K. v. Employees Group Ben. Program, 558 So.2d 633, 634 n. 1 (La.App. 1st Cir.1990). Thus, by rendering summary judgment in favor of the tax collector, the trial court implicitly overruled Simons Petro’s peremptory exceptions, and because on appeal Simons Petro challenges these rulings, they are properly before us on appeal.

1. Failure to State a Cause of Action

Simons Petro maintains that a tax collector may legally collect only that tax rate in effect at the time of the sales transactions and that, in filing the second reeonventional demand, the tax collector attempted to impose a higher tax rate than that in effect during the tax period.

The function of the peremptory exception of no cause of action is to question whether the law extends a remedy against the defendant to anyone under the factual allegations of the petition. Industrial Companies, Inc. v. Durbin, 2002-0665, p. 6 (La.1/28/03), 837 So.2d 1207, 1213. If there are two or more items of damages which arise out of the operative facts of a single transaction or occurrence, a partial judgment on an exception of no cause of action should not be rendered to dismiss one item of damages. In such a case, there is truly only one cause of action, and a judgment partially maintaining the exception is generally inappropriate. Everything on Wheels Subaru, Inc. v. Subaru South, Inc., 616 So.2d 1234, 1236-37 (La.1993).

Our review of the allegations stated in the pleadings establishes that the claim of entitlement to a higher tax rate averred by the tax collector in its reeonventional demand amounted to nothing more than a legal conclusion. And while the reconven-tional demand stated with more specificity the facts upon which Pointe Coupee Parish averred Simons Petro’s sales tax liability was based, no new operative facts arising from different transactions or occurrences were alleged. The implicit overruling of Simons Petro’s exception of no cause of action by the trial court is correct.

|fi2. Prescription

Simons Petro asserts that the tax collector’s attempt to collect at a tax rate in excess of the 2% stated in the December 14, 2000, formal assessment letter is untimely.

According to the relevant portions of Section 13-211 of the Sales and Use Tax regulations of the Code of Ordinances of Pointe Coupee Parish:

(a) Sales and use taxes levied by [Pointe Coupee Parish] shall prescribe as of three (3) years from the thirty-first day of December in the year in which such taxes became due.
(b) The prescriptive period running against any such sales and use tax shall be interrupted by:
(1) The action of the [tax] collector in assessing the amounts of such taxes in the manner prescribed by law.
(3) Filing of any pleadings by the [tax] collector or by the taxpayer with any state or federal court.

See also La. Const. Art. VII, § 16; La. R.S. 47:1579.

And Section 13-192 of the Code of Ordinances, which sets forth the requisites of notifying the taxpayer, states in pertinent part:

(a) Having assessed the amount determined to be due, the [tax] collector shall send, by registered or certified mail, a notice to the taxpayer against whom the assessment lies, at the ad-' dress given in the last report filed by the taxpayer.... This notice shall inform the taxpayer of the assessment made against him and notify him that he has thirty (30) calendar days from the date of the notice within which to pay the amount of the assessment or that he may pay the tax under protest and file suit for recovery ....
|7(b) No assessment made by the [tax] collector shall be final if it is determined that the assessment was based on an error of fact or of law.... An error of law for this purpose means that in making the assessment the collector applied the law contrary to the interpretation followed by the [tax] collector in making other assessments. The determination of an error ... of law under this section shall be solely that of the collector....

See also La. R.S. 47:1565.

The parties do not dispute that the December 14, 2000, formal assessment letter notified Simons Petro of an alleged sales tax liability for the period January 1, 1997 through March 31, 1999. Under Section 13 — 211(b)(1), that action, taken in accordance with Section 13-192(a), was timely.

But Simons Petro did not receive a subsequent notice issued in accordance with Section 13-192(a), apprising the taxpayer of the tax collector’s error of law in the December 14, 2000, formal letter of assessment. Buttressing itself with this lack of notice, Simons Petro suggests that as of December 31, 2000 (which is three years from the thirty-first day of December of 1997), the amount of the assessment in excess of 2% for the period of January 1, 1997 through March 31, 1999, is prescribed. We disagree.

We initially note Simons Petro does not deny having received actual notice— with the filing of the reconventional demand — of the tax collector’s intent to collect an amount calculated at the higher tax rate. Thus, Simons Petro clearly did not suffer any actual prejudice. Section 13-211(b) states that the prescriptive 1 ^period is “interrupted” by an action of the tax collector in assessing the amounts, which in this case is as set forth in Section 13-192(a). Assuming arguendo that Simons Petro were entitled to a formal assessment letter issued in accordance with Section 13-192(a), i.e., via certified or registered mail, apprising the taxpayer of sales tax liability in an amount calculated at a higher tax rate, and mindful that words of art and technical terms must be given their technical meaning, see La. C.C. art. 11, we note that when prescription is “interrupted,” the time that has run is not counted; prescription commences to run anew from the last day of interruption. See La. C.C. art. 3466; see also Louviere v. Shell Oil Co., 440 So.2d 93, 97 n. 8 (La.1983) (explaining that when prescription is interrupted, the prescriptive period starts over in its entirety upon cessation of the interruption).

Because Simons Petro admits, and the record establishes, that the tax collector, having complied with Section 13-192(a), interrupted prescription for the January 1, 1997 through December 31, 1997 tax period under Section 13 — 211(b)(1) by the December 14, 2000 formal assessment letter, Pointe Coupee Parish would have had until December 31, 2001, to timely enforce its claim for collection of an amount calculated at the higher tax rate. When it filed its second reconventional demand on December 20, 2001, Pointe Coupee Parish again interrupted the accrual of prescription for the January 1, 1997 through December 31, 1997 tax period. Thus, the implicit overruling of Simons Petro’s exception of prescription by the trial court is correct.

B. Merits of Summary Judgment

The parties stipulated that all of the taxes, interest, and penalties at issue in this lawsuit relate to Simons Petro’s sales of diesel fuel in Pointe Coupee Parish. |9The parties refer to the diesel fuel sold by Simons Petro to its customers to operate drilling rigs as “off road diesel fuel,” which they agree is “diesel fuel used for purposes other than to power motor vehicles licensed, or required to be licensed, for highway use.” Local political subdivisions are empowered to levy and collect a tax upon the sale at retail of tangible property if approved by a majority of the electors. See La. Const. Art. VI, § 29(A). . See also Code of Ordinances Section 13-86 (wherein Pointe Coupee Parish imposes a sales tax on tangible personal property). The parties do not dispute that diesel fuel, including off road diesel fuel, is tangible property.

Simons Petro contends the trial court erred in granting summary judgment in favor of Pointe Coupee Parish because by levying the tax on the taxpayer’s sales of off road diesel fuel, Pointe Coupee Parish violated the constitutional provision, which prohibits political subdivisions from levying a tax on motor fuel.

Article VII, § 4(C) of the Louisiana Constitution states:

A political subdivision of the state shall not levy a severance tax, income tax, inheritance tax, or tax on motor fuel.

In this appeal, the parties agree, and we find, that the phrase “motor fuel” contained in La. Const. Art. VII, § 4(C) is ambiguous when applied to diesel fuel.

Louisiana Civil Code article 13 instructs that laws on the same subject matter must be interpreted in reference to each other. Thus, we look to the definition of “motor fuel,” contained in Part I of Chapter 7, entitled “TAXES ON PETROLEUM PRODUCTS,” which is codified in La. R.S. 47:712(1) and means “all volatile gas generating liquids having a flash point below 110 degrees F.”

1 ^Simons Petro acknowledges that the off road diesel fuel it sold from January 1, 1997 through March 31, 1999, has a flash point above 110 degrees F. That definition, originally enacted by Louisiana Acts 1928, Ex.Sess., No. 6, § 1, is the same definition in effect when the 1974 Constitution was adopted. Thus, we conclude that the off road diesel fuel sold by Simons Petro is not “motor fuel” so as to fall within the ambit of La. Const. Art. VII, § 4(C) prohibiting political subdivisions from levying a tax on motor fuel. Ocean Energy, Inc. v. Plaquemines Parish Government, 2003-0805, pp. 3-6 (La.App. 4th Cir.12/10/03), 863 So.2d 618.

Simons Petro urges that because the definition of motor fuel contained in La. R.S. 47:712(1) is statutorily limited to its use in Part I of Chapter 7 of Title 47 of the Revised Statutes, appreciation for the meaning of “motor fuel” in La. Const. Art. VII, § 4(C) as it applies to diesel fuel requires a review of constitutional intent. Thus, we examine the state of the law prior to the 1974 Constitution.

In this case, the parties agree that the prohibition against political subdivisions taxing motor fuel represented no change in the law from that present before the 1974 Constitution came into effect. See Official Journal of the Proceedings of the Constitutional Convention of 1973 of the State of Louisiana, Vol. I, p. 127 (11th day, July 6, 1973).

According to Article XIV, § 24.1 of the Louisiana Constitution of 1921:

No parish, municipality, or other political subdivision, shall levy an. excise, license or privilege tax upon gasoline, kerosene or other combustibles used in the generation of motive power.

In Roberts v. City of Baton Rouge, 236 La. 521, 108 So.2d 111 (1958) (on rehearing), the court examined whether the City of Baton Rouge violated the | n constitutional prohibition of Article XIV, § 24.1 by requiring that gasoline retailers include sales of gasoline and' other motor fuels when computing gross sales by which their annual local occupational license tax was measured. Finding that the Article XIV, § 24.1 prohibition was ambiguous, the Roberts court described “excise” taxes as those levied upon the manufacture, sale or consumption of commodities; or upon licenses given to pursue specified occupations; or upon corporate privileges, and concluded that these were in the nature of indirect taxes. Indirect taxes were distinguished by the court from direct taxes, which are those imposed upon a person or upon the property owned by them. 236 La. at 551, 108 So.2d at 121. Given that distinction, the Roberts court held that as used in Art. XIV, § 24.1, the term “excise, license or privilege tax” had no meaning because “such taxes are those levied upon acts or activities and not upon things (such as gasoline) themselves.” 236 La. at 551, 108 So.2d at 121-22.

The Roberts court rejected the assertion that the prohibition of Art. XIV, § 24.1 was intended to exempt all activities relating to gasoline, kerosene, or other combustibles used in the generation of motive power from any excise taxation whatsoever and held that the Constitutional prohibition did not include the non-discriminatory occupational license taxes levied by the City of Baton Rouge. In so concluding, the Roberts court reasoned that the constitutional prohibition addressed taxes levied directly upon the sale or consumption of gasoline. At the outset, in a footnote, the court stated that references throughout the opinion to “taxes on ‘gasoline” ’ were intended to “include also taxes upon the other motor fuels falling within the prohibition.” 236 La. at 550 n. 1, 108 So.2d at 121 n. 1.

11?,Simons Petro relies on Roberts to broadly assert that at the time of the 1974 Constitution, the status of the law was that local political subdivisions were prohibited from levying an excise tax on gasoline, kerosene or- other combustibles used in the generation of motive power. Because the prohibition against political subdivisions levying a tax on motor fuel represented no change in the law, Simons Petro reasons, Pointe Coupee Parish is prohibited by Const. Art. VII, § 4(C) from levying a sales tax on the off road diesel fuel it sold from January 1, 1997 through' March 31, 1999. We disagree.

The Roberts court held only that Art. XIV, § 24.1 prohibited political subdivisions from directly taxing the sale or consumption of gasoline and, therefore, did not prohibit inclusion of gasoline (and other motor fuels) sales in computing gasoline retailers’ gross sales when the City of Baton Rouge determined annual taxes on local occupational licenses. The issue of whether off road diesel fuel is a “motor fuel” or an “other combustible ... used in the generation of motive power” clearly was not before the court. And nothing in the Roberts opinion suggests that the reference to “other combustibles used in the generation of motive power” of Art. XIV, § 24.1 prohibited political subdivisions from levying an excise, license, or privilege tax on diesel fuel used for purposes other than to power motor vehicles licensed, or required to be licensed, for highway use. Thus, appreciation of the state of the law prior to the 1974 Constitution depends on the meaning of “other combustibles used in the generation of motive power” contained in the 1921 constitution.

Simons Petro has supplied us with, and the record contains, no evidence demonstrating that historically “other combustibles used in the generation of | ^motive power” provided for in Art. XIV, § 24.1 could have, as a matter of technology, included diesel fuel used for purposes other than to power motor vehicles and for other transportation uses. Logically, we are convinced that the phrase “generation of motive power” used in our earlier constitution could have only referred to diesel fuel used in the powering of motor vehicles and other transportation. Therefore, La. Const. Art. XIV, § 24.1, prohibited political subdivisions from levying an excise, license, or privilege tax on gasoline, kerosene, or other combustibles used in the powering of motor vehicles and other transportation. Because the off road diesel fuel sold by Simons Petro is used for purposes other than powering motor vehicles and other transportation, it would not have been an “other combustible[ ] ... used in the generation of motive power” under Article XIV, § 24.1 of the 1921 Louisiana Constitution. Given that Article VII, § 4(C) was not intended to change the status of the law in effect before 1974, off road diesel fuel is not a “motor fuel” and may properly be the subject of a political subdivision’s tangible property sales tax.

Accordingly, because the term “motor fuel” in La. Const. Art. VII, § 4(C) is ambiguous when applied to diesel fuel, whether we look at the legislatively-enacted definition of “motor fuel” contained in La. R.S. 47:712(1) or we evaluate the intent of the enactment of the constitutional provision, we conclude that political subdivisions are not constitutionally prohibited from levying a tax on the sale of off road diesel fuel. Pursuant to La. Const. Art. VI, § 29(A), political subdivisions may, therefore, levy and collect a tax for sales of off road diesel fuel. 114Thus, we hold that La. Const. Art. VII, § 4(C) does not prohibit Pointe Coupee Parish from levying and collecting a tax on the sales of off road diesel fuel by Simons Petro from January 1,1997 through March 31,1999.

Constitutional provisions of the same subject matter should be construed together. As such, the Articles of the Constitution may be taken and construed together as one system and as explanatory of one another, see Succession of Lauga, 624 So.2d 1156, 1166 (La.1993), because when related articles are not construed together, they might become inharmonious and inconsistent. See Gruner v. Police Jury of Claiborne Parish, 119 La. 551, 554, 44 So. 295, 296 (1907); see also La. C.C. art. 13.

With these precepts in mind, we note that our conclusion excluding off road diesel fuel from the prohibition of Const. Art. VII, § 4(C) on political subdivisions levying a tax on motor fuel is further buttressed by examination of La. Const. Art. VII, § 27(A), which creates the Transportation Trust Fund. Under this constitutional provision, purchases of gasoline, diesel fuel, or special fuels, which are subject to excise tax under Chapter 7 of Subtitle II of Title 47 of the Louisiana Revised Statutes, are exempt from the state sales tax and any sales tax levied by a political subdivision. See Ocean Energy, Inc., 2003-0805 at p. 5, 863 So.2d at 621. If we were to conclude that political subdivisions were unconditionally prohibited from levying a sales tax on diesel fuel under Article VII, § 4(C), the constitutional exemption of Article VII, § 27(A) would be rendered | ^meaningless.

For all these reasons, we conclude that the trial court correctly rendered summary judgment in favor of Pointe Coupee Parish.

III. ATTORNEY FEES

In its answer to this appeal, Pointe Coupee Parish complains of the failure of the trial court to award it attorney fees for collection of the tax on Simons Petro’s sales of off road diesel fuel from January 1, 1997 through March 31, 1999.

Political subdivisions like Pointe Coupee Parish are authorized by La. R.S. 33:2841 to enforce the collection of their taxes “in the manner provided for the collection of taxes due to the state.” And La. R.S. 47:1512, in Chapter 18 of Subtitle II of Title 47, provides:

hfiThe collector is authorized to employ private counsel to assist in the collection of any taxes, penalties or interest due under this Sub-title, or to represent him in any proceeding under this Subtitle. If any taxes, penalties or interest due under this title are referred to an attorney at law for collection, an additional charge for attorney fees, in the amount of ten per centum (10%) of the taxes, penalties and interest due, shall be paid by the tax debtor.

Therefore, the jurisprudence recognizes that the state statute rather than the parish ordinances govern the tax collector’s ability to recover attorney fees. See Tigator, Inc. v. Police Jury of West Baton Rouge Parish, 94-1771, p. 14 (La.App. 1st Cir.5/5/95), 657 So.2d 221, 230, writs denied, 95-2126, 95-2172 (La.11/17/95), 663 So.2d 712. Cf. Code of Ordinances Section 13-147 (authorizing the tax collector in the enforcement of the collection of the tax to employee all means prescribed by law and specifically referencing Chapter 18 of Subtitle II of Title 47 of the Louisiana Revised Statutes).

Whether the tax collector initiates a collection action or the taxpayer pays the taxes under protest and files a suit for refund, the taxpayer who failed to timely remit payment of taxes is liable under La. R.S. 47:1512. See United Companies Life Ins. Co. v. City of Baton Rouge, 577 So.2d 195, 196 (La.App. 1st Cir.1991). Having failed to pay taxes for its sales of off road diesel fuel on a monthly basis, see La. R.S. 47:306 and Code of Ordinance Section 13-135, Simons Petro’s delinquent payment under protest is insufficient to avoid liability for attorney fees. Thus, the trial court erred in failing to award Pointe Coupee Parish an attorney fee.

Attorney fees calculated in accordance with La. R.S. 47:1512 are, nevertheless, subject to a judicial review of the reasonableness of the fee. See City of Baton Rouge v. Stauffer Chemical Co., 500 So.2d 397, 401 (La.1987). Because the record lacks evidence regarding the value and the extent of the services provided by counsel for Pointe Coupee Parish, we remand this case to the trial court, see Louisiana Eggs, Inc. v. Gunter Farms, Inc., 2001-0932, p. 9 (La.App. 1st Cir.4/2/03), 844 So.2d 400, 405, to determine the amount of attorney fees Pointe Coupee Parish is entitled to under La. R.S. 47:1512, whether that amount is reasonable and, if not, to set reasonable attorney fees.

IV. DECREE

The trial court’s judgment is amended to award attorney fees to Pointe Coupee Parish and, as amended, affirm. The matter is remanded for the trial court to determine the amount of reasonable attorney fees to which Pointe Coupee Parish is entitled. Appellant-taxpayer, Simons Petroleum, Inc., is taxed with appeal costs.

AMENDED AND, AS AMENDED, AFFIRMED. REMANDED. APPELLANT’S MOTION TO REMAND FOR EVIDENTIARY HEARING ON PEREMPTORY EXCEPTIONS DENIED.

      . Although the parties make countering assertions about the effect of a letter sent to the clerk of the district court by Simons Petro, which ostensibly stated that the peremptory exceptions were "waived,” the letter is not contained in the appellate record. But this omission is of no moment because La. C.C.P. art. 966 B permits a court to render summary judgment only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.”

      . While this appeal was pending, Simons Pe-tro filed with this court a Motion to Remand, which was referred to the merits of this appeal. Simons Petro alleges that it is entitled to a remand because of the trial court’s failure to expressly rule on the peremptory exceptions, and that absent express rulings by the trial court, the October 15, 2002 judgment is a partial judgment, not immediately appeal-able because it does not comply with La. C.C.P. art. 1915. But we have concluded that the trial court's implicit rulings on the exceptions are before us on appeal. Therefore, the judgment is not a partial one circumscribed by La. C.C.P. art. 1915. Accordingly, the motion to remand is denied.

      . Our references throughout this opinion to regulations of the "Code of Ordinances” are to the sections codified in Article III, Chapter 13 of the Code of Ordinances of Pointe Cou-pee Parish, which is entitled “Sales and Use Tax.” We note that according to Section 13-147 of the Code of Ordinances, the tax collector's authority includes all remedies and enforcement and collection procedures prescribed by Chapter 18 of Subtitle II of Title 47 of the Louisiana Revised Statutes. See La. R.S. 47:1501-1691.

      . Because this lawsuit was instituted by the taxpayer on January 4, 2001, under the plain language of Sections 13-211(b)(3) and 13-192(b), the December 14, 2000 assessment via certified or registered mail was timely for the tax periods, which commenced on January 1, 1998 and ended on March 31, 1999. Thus, the only portion of the assessment to which Simons Petro's complaint of a lack of Section 13-192(a) notice via certified or registered mail could logically apply would be that which began on January 1, 1997 and ended on December 31, 1997.

      . Our conclusion that off road diesel fuel is outside the ambit of the prohibition on the "tax on motor fuel” synchronizes La. Const. Art. VII, § 4(C) with the statutory provisions of Chapter 7 of Subtitle II of Title 47 of the Louisiana Revised Statutes, which address taxation of petroleum products. See La. C.C. art. 13. Motor fuel means “all volatile gas generating liquids having a flash point below 110 degrees F,” see La. R.S. 47:712(1) and "special fuel” means and includes "all combustible gases and liquids used or suitable for use in an internal combustion engine or motor for the generation of power for motor vehicles” with the exception of motor fuel. La. R.S. 47:801(10). A per gallon tax is imposed on all motor fuels and special fuels. See La. R.S. 47:711, 802, and 820.1. Simons Petro concedes that off road diesel fuel falls outside the statutory definition of motor fuel; and while off road diesel fuel technically is a special fuel in that it is a gas or liquid used or suitable for use in an internal combustion engine, because it is not "sold, used, or consumed in the state of Louisiana for the operation of motor vehicles, licensed or required to be licensed for highway use,” per gallon taxes are not imposed on its sales. See La. R.S. 47:802 and 820.1. Thus, if political subdivisions are prohibited by La. Const. Art. VII, § 4(C) from imposing the tangible property sales tax permitted in La. Const. Art. VI, § 29(A), off road diesel fuel sold by Simons Petro — which is neither a motor fuel nor a special fuel subject to the imposition of per gallon taxes' — enjoys a tax status that other tangible property does not absent express legislation.

      . Whether we review the interlocutory judgment of the trial court granting Simons Pe-tro’s motion to strike the tax collector’s first reconventional demand as part of the appeal of the final judgment, see People of Living God v. Chantilly Corp., 251 La. 943, 947-48, 207 So.2d 752, 753 (1968); Houghton v. Our Lady of the Lake Hosp., Inc., 2003-0135, p. 3 (La. App. 1st Cir.7/16/03), 859 So.2d 103, 105, or we find that by failing to expressly rule on Pointe Coupee Parish's entitlement to attorney fees, the appealed final judgment implicitly rejected the tax collector's claim for attorney fees, see Best Fishing, Inc. v. Rancatore, 96-2254, p. 5 (La.App. 1st Cir. 12/29/97), 706 So.2d 161, 163, we find that the matter is properly before us.

      . The trial court awarded the amounts of $86,135.50, which the December 14, 2000, formal assessment letter advised Simons Pe-tro was the total outstanding tax, interest, and penalty through that date; and $18,080.42, which the reconventional demand alleged included the additional tax and penalty calculated from application of the difference of the full tax rate in effect on the dates of the sales transactions and the 2% rate at which Simons Petro was assessed in December 2000. Neither the taxpayer nor the tax collector has challenged the quantum of the trial court's awards. Thus, a mechanical application of La. R.S. 47:1512 to the present record yields attorney fees of $10,421.59, excluding interest and additional penalties to those set forth in the December 14, 2000 formal assessment letter.


author: SMITH, Presiding Justice,

text:
    UNITED STATES FIDELITY & GUARANTY COMPANY and City of Meridian, Mississippi v. Richard K. MOSS.
    No. 2002-IA-01961-SCT.
    Supreme Court of Mississippi.
    March 25, 2004.
    Rehearing Denied June 3, 2004.
    David Zachary Scruggs, David Paul Voi-sin, Myles A. Parker, attorneys for appellants.
    Robert C. Boyd, Jackson, James Randal Wallace, attorneys for appellee.
    Before SMITH, P.J., EASLEY and GRAVES, JJ.
   SMITH, Presiding Justice,

for the Court.

¶ 1. This lawsuit stems from allegations of improper handling of numerous aspects of a workers’ compensation claim. Plaintiff Richard K. Moss (“Moss”) filed suit against the City of Meridian (“City”), a Mississippi municipal corporation, and United States Fidelity & Guaranty Company (“USF & G”) in the Circuit Court of the First Judicial District of Hinds County, Mississippi, alleging breach of contract and negligence. The City and USF & G moved for a transfer of venue pursuant to Miss.Code Ann. § 11-45-25 (Rev.2002), suits by and against municipalities, and 11-11-7 (1972) (repealed effective January 1, 2003), actions against insurance companies. The circuit court denied the motion and the defendants’ request to certify the order denying venue change for interlocutory appeal.

¶ 2. Subsequently, the defendants filed a Petition for Interlocutory Appeal to this Court. This Court granted that petition. See M.R.A.P. 5. The defendants now ask this Court to determine whether the circuit court erred in denying their motion to transfer venue to Lauderdale County, Mississippi, pursuant to Miss.Code Ann. §§ 11-45-25 and 11-11-7, respectively. We find that the circuit court erred in denying the motion. Accordingly, we reverse and remand with instruction for the trial judge to transfer venue to the Circuit Court of Lauderdale County.

FACTS AND PROCEDURAL HISTORY

¶ 3. Richard K. Moss, an employee of the City of Meridian, sustained injuries while at work, rendering him disabled and partially paralyzed below the waist. He submitted a workers’ compensation claim for benefits long before his complaint in this action was filed. Defendants City and USF & G, the City’s workers’ compensation insurer, admitted liability for the maximum limit of wage indemnity benefits and all medical services related to Moss’s injury. Accordingly, USF & G paid workers’ compensation and medical benefits to Moss beginning at the time of the accident, June 18, 1995, up until about July 10, 2001, when payments stopped. Allegedly due to an error or oversight, Moss’s payments “fell off’ the automated computer system of USF & G, and Moss did receive payment again until November 21, 2001. Moss contends that the defendants also failed to pay a medical bill for x-rays to a physician in Hinds County, Mississippi. Moss alleges that defendants were made aware of the non-payment, but refused to pay. The bill was eventually turned over to a collection agent.

¶ 4. Moss filed this suit in the Circuit Court of Hinds County on November 13, 2001, alleging that he suffered emotional distress as a result of the lapse in his payments. On November 28, 2001, USF & G paid all past due compensation payments resulting from the lapse. Subsequently, the defendants filed a Motion to Transfer Venue to Lauderdale County, Mississippi, pursuant to Miss.Code Ann. §§ 11^15-25 & 11-11-7. The circuit court denied the motion, but the court failed to state any reason why the motion was not well taken. The defendants are now before this Court on interlocutory appeal. Defendants raise the following issues:

I. WHETHER THE CIRCUIT COURT ERRED IN DENYING DEFENDANTS’ MOTION TO TRANSFER VENUE TO LAUDERDALE COUNTY, MISSISSIPPI, PURSUANT TO MISS. CODE ANN. § 11-45-25.
II. WHETHER THE CIRCUIT COURT ERRED IN DENYING DEFENDANTS’ MOTION TO TRANSFER VENUE TO LAUDERDALE COUNTY, MISSISSIPPI, PURSUANT TO MISS. CODE ANN. § 11-11-7.

ANALYSIS

¶ 5. This Court utilizes “a de novo standard when reviewing questions of law, including those questions concerning the application of the Mississippi Tort Claims Act.” Lee County v. Davis, 838 So.2d 243, 244 (Miss.2003) (citing Maldonado v. Kelly, 768 So.2d 906, 908 (Miss.2000)).

I. WHETHER THE CIRCUIT COURT ERRED IN DENYING DEFENDANTS’ MOTION TO TRANSFER VENUE TO LAUD-ERDALE COUNTY, MISSISSIPPI, PURSUANT TO MISS. CODE ANN. § 11-45-25.

¶ 6. The Mississippi Tort Claims Act, Miss.Code Ann. §§ 11-46-1 to 11 — 46— 23, controls the issue of proper venue in cases where a plaintiff files suit against the State or one of its subdivisions. Because the City of Meridian is a defendant in this action, Miss.Code Ann. § 11^16-13(2) controls our determination of proper venue. That statute states in pertinent part:

The venue for any suit filed under the provisions of this chapter against the state or its employees shall be in the county in which the act, omission or event on which the liability phase of the action is based, occurred or took place. The venue for all other suits filed under the provisions of this chapter shall be in the county or judicial district thereof in which the principal offices of the governing body of the political subdivision are located. The venue specified in this subsection shall control in all actions filed against governmental entities, notwithstanding that other defendants which are not governmental entities may be joined in the suit, and notwithstanding the provisions of any other venue statute that otherwise would apply.

(emphasis added). We have recognized that in actions against governmental entities such as counties or municipalities, proper venue lies “in the county or judicial district thereof in which the principal offices of the governing body of the political subdivision are located.” Estate of Jones v. Quinn, 716 So.2d 624, 627 (Miss.1998) (quoting Miss.Code Ann. § 11-46-13(2)). Assuming without deciding that the acts or omissions alleged here occurred in Hinds County, Section 11-46-13 would nevertheless apply pursuant to the statute’s third sentence. That is, because the City of Meridian, a subdivision of the State of Mississippi, is a defendant, then Section 11-46-13(2) is the controlling venue statute. Furthermore, Rule 82(d) of the Mississippi Rules of Civil Procedure states:

When an action is filed laying venue in the wrong county, the action shall not be dismissed, but the court, on timely motion, shall transfer the action to the court in which it might properly have been filed and the case shall proceed as though originally filed therein. The expenses of the transfer shall be borne by the plaintiff. The plaintiff shall have the right to select the court to which the action shall be transferred in the event the action might properly have been filed in more than one court.

¶ 7. Moss points out that in Flight Line, Inc. v. Tanksley, 608 So.2d 1149, 1157 (Miss.1992), we held “the word ‘occur’ [as used in Section 11-11-7] connotes each county in which a substantial component of the claim takes place.” He argues the defendants’ failure to pay the medical provider in Hinds County is a substantial breach of duties they owed Moss and, therefore, part of his claims occurred in Hinds County for purposes of Miss.Code Ann. § 11-11-17. Thus, Moss asserts that Hinds County was a proper venue for this suit. We disagree.

¶ 8. We find that Section 11-46-13(2) controls venue in this action. Because the City of Meridian is wholly situated in Lauderdale County, Mississippi, venue was proper only in Lauderdale County and not in Hinds County. There is no question here that the suit should have been transferred pursuant to M.R.C.P. 82(d). See Estate of Jones, 716 So.2d at 628-629. Moreover, the record in this case reveals no discernable basis for the refusal by the trial court to transfer this case. Such actions by trial judges are costly to the judicial system, both in money and reputation. Future unexplained abuses will not be ignored. The trial court erred in not transferring this action. Pursuant to controlling statutory and case law, this Court reverses the order of Hinds County Circuit Court and remands for a transfer of venue to Lauderdale County, Mississippi.

¶ 9. Due to the outcome of Issue I, we find that the remaining issues need not be addressed.

CONCLUSION

¶ 10. We find that the trial court erred in determining that venue was proper in Hinds County. Therefore, the order of the trial court is reversed, and this case is remanded to the trial court for transfer of venue to the Circuit Court of Lauderdale County, Mississippi.

¶ 11. REVERSED AND REMANDED.

PITTMAN, C.J., WALLER, P.J., COBB, EASLEY AND DICKINSON, JJ., CONCUR. GRAVES, J., CONCURS IN RESULT ONLY. DIAZ AND CARLSON, JJ., NOT PARTICIPATING.


author: CARLSON, Justice,

text:
    PRE-PAID LEGAL SERVICES, INC., Brooks Werkheiser, Dyre Law Firm, PLLC and Arnold D. Dyre v. Samuel BATTLE, Reginald Burks, Myrtis Hollis, James Robinson, Bennie Irvin, Mary Keeler, Willie Mckenny, Renata L. Miller, David Mills, Eric Norwood, Geneva Shelby, Shemekia Shelby, Pastella Spratley, George Williams, Leonard Boddie, John C. Burwell, Angela Hudnall, Minnie Mosely, Caroline Smith, Thelma Louise Smith, Jimmy Grant, Sylvia Grant, Tony Barfield, Mary Honeysuckle, Lonedell Nicholson, Patricia Whitfield, Charles Alexander, Kenneth M. Crook and Beverly Thompson.
    No. 2002-CA-01669-SCT.
    Supreme Court of Mississippi.
    April 1, 2004.
    Rehearing Denied June 3, 2004.

      Richard L. Jones, Robert L. Gibbs, Annie C. Sanders, Andrea LaWerne Ford Edney, Teselyn Afrique Melton, Earnest G. Taylor, John Benton Clark, Shanda L. Lewis, C. Michael Ellingburg, Jackson, attorneys for appellants.
    J. Brad Pigott, J. Douglas Minor, Barry W. Gilmer, Jackson, attorneys for appel-lees.
   CARLSON, Justice,

for the Court.

¶ 1. This matter is on appeal after a ruling by the Circuit Court of the First Judicial District of Hinds County granting the Plaintiffs’ Motion for Partial Summary Judgment and denying the Defendants’ Motion for Summary Judgment. In essence, the trial court granted declaratory judgment finding that the plaintiffs had no obligation to arbitrate their disputes with the defendants, and the defendants thus filed this appeal. For the reasons stated below, we affirm the trial court’s ruling.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶ 2. Pursuant to Miss.Code Ann. §§ 83-49-1 et seq., National Pre-Paid Legal Services of Mississippi, Inc. (“National”) offered contracts for legal expense insurance to individuals for a monthly fee. National is incorporated in Georgia and has its principal place of business in Ada, Oklahoma. National, in turn, has contracted with PrePaid Legal Services, Inc. (“Pre-Paid”), an Oklahoma corporation, to provide administrative services for National. National is a subsidiary of Pre-Paid and has no employees.

¶ 3. In accordance with § 83-49-13(6), National has submitted two contracts and a Legal Shield Addendum which have been reviewed and approved by the Mississippi Insurance Commissioner. Both contracts are in a 9-point font size and contain the following provisions on the fifth page of the six page contract under the Subheading “General Provisions”:

E. Specific Exclusions: The following items are specifically excluded and shall not be interpreted as included benefits:
2. Any person or entity who initiates or participates in a lawsuit against the Company or any of its affiliates, or is named as a defendant or respondent in a lawsuit initiated by the Company or any of its affiliates, shall be specifically excluded from receiving coverage under this Contract for services related to such lawsuit. All coverage under this Contract for services unrelated to a lawsuit either initiated by or against the Company or any of its affiliates, shall be suspended during the pendency of such lawsuit.
F. Attorney Client Contract: All benefits provided under this Contract, except Title I benefits [Legal Consultation and Legal Assistance Services], shall be subject to the terms of an Attorney-Client Contract to be executed by the Covered Person prior to the time services are rendered, which contract may require payment of anticipated costs to the Provider Attorney to cover legal services not covered by this Contract. A1 determinations of anticipated costs shall be made in the sole discretion of the Provider Attorney, and eligibility for receipt of benefits hereunder is contingent upon payment of same prior to commencement of legal representation by Provider Attorney.
G. Provider Attorney: Provider Attorney is defined as a law firm designated by the Company to provide the benefits described in this Contract.
K. Settlement of Disputes: In the event of a dispute, the parties will agree on an impartial attorney who will decide such dispute and that decision will be binding on all parties to such dispute.

Neither contract or addendum shield required a signature or acknowledgment from the person or persons purchasing the pre-paid legal expense agreement.

¶ 4. This action was brought in Hinds County Circuit Court by twenty-nine plaintiffs who entered into one or the other contracts with National. One plaintiff, Samuel Battle, also entered into an agreement with Pre-Paid Legal Services, Inc., to market the legal services contracts. This marketing agreement is not at issue in this appeal. Named as defendants in the Second Amended Complaint were Prepaid Legal Services, Inc. (Pre-Paid), Harlan [sic] C. Stonecipher, Brooks Werkheiser (collectively referred to as “the Prepaid defendants”), Dyre Law Firm, PLLC, and Arnold D. Dyre (collectively referred to as “Dyre defendants”). When filing the Second Amended Complaint, the plaintiffs withdrew the breach of contract claim against National Pre-Paid of Mississippi, removed National as a defendant, and added a claim for declaratory judgment of no obligation to submit to arbitration. The Plaintiffs’ Motion for Leave to File a Third Amended Complaint, adding one additional plaintiff has not yet been ruled upon by the trial court.

¶ 5. Harland Stonecipher is the founder and CEO of Pre-Paid, and a member of the Board of National. Stonecipher has a Motion to Dismiss for Lack of Personal Jurisdiction pending in the trial court. Brooks Werkheiser is the former Vice President of Pre-Paid. The Dyre defendants provided legal counseling to members in Mississippi. The Pre-Paid defendants admit that they are not parties to the contracts with National, but maintain they are entitled to enforce the arbitration clause of the contract.

¶ 6. Plaintiffs have asserted the following eight causes of action: (1) violation of Mississippi Deceptive Advertising Statute (§ 97-23-30) (Pre-Paid defendants only); (2) tort of deceit (or fraud) (Pre-Paid defendants only); (3) tort of civil conspiracy (all defendants); (4) tort of professional negligence (Dyre defendants only); (5) tort of negligent misrepresentation (all defendants); (6) breach of fiduciary duty (Dyre defendants only); (7) illegal payments to the Dyre defendants (all defendants); (8) fraudulent inducement of sales contract (Battle is the only plaintiff asserting this count against Pre-Paid defendants); and (9) declaratory judgment that their claims are not subject to arbitration (against all defendants). Thereafter, the defendants filed suit in the U.S. District Court alleging this matter posed a federal question under the Federal Arbitration Act and that federal court is a more convenient forum. The defendants requested a stay in the state court action pending the outcome of the federal court action.

¶ 7. The circuit court refused to impose a stay and, instead, granted Plaintiffs’ Motion for Partial Summary Judgment and denied defendants’ Motion for Summary Judgment. Specifically, the trial court declared that the defendants are not in a position to require arbitration based on language in the National contract, that imposition, of the arbitration language would destroy certain legal rights of the plaintiffs, and there is no binding language existing in .the agreement between plaintiffs and National Prepaid.

STANDARD OF REVIEW

¶ 8. This Court reviews questions of law de novo. Russell v. Performance Toyota, Inc., 826 So.2d 719, 721(¶ 5) (Miss.2002). The underlying case was presented to the trial court by way of summary judgment. This Court applies a de novo standard of review on appeal from a grant of summary judgment by the trial court. Rush v. Ivy, 853 So.2d 1226, 1229 (¶ 12) (Miss.2003) (citing Jenkins v. Ohio Cas. Ins. Co., 794 So.2d 228, 232 (Miss.2001); Russell v. Orr, 700 So.2d 619, 622 (Miss.1997); Richmond v. Benchmark Constr. Corp., 692 So.2d 60, 61 (Miss.1997); Northern Elec. Co. v. Phillips, 660 So.2d 1278, 1281 (Miss.1995)). Although we have not yet been confronted with a declaratory judgment finding against arbitration, we have reviewed the grant or denial of a motion to compel arbitration under the de novo standard of review. Tupelo Auto Sales, Ltd. v. Scott, 844 So.2d 1167, 1169 (¶ 5) (Miss.2003) (citing East Ford, Inc. v. Taylor, 826 So.2d 709, 713 (Miss.2002) and Webb v. Investacorp, Inc., 89 F.3d 252, 256 (5th Cir.1996)).

DISCUSSION

¶ 9. Although the parties raise numerous issues on appeal, one issue is dispositive, and we thus need address only that issue.

I. WHETHER THERE WAS AN AGREEMENT TO ARBITRATE.

¶ 10. The critical issué before us today is whether the language contained in the pre-paid legal services plan constitutes a binding arbitration provision. The Prepaid defendants contend that the statute requires that legal expense plans contain an arbitration clause and that the contract contains a binding arbitration provision for any disputes that arise. In the Mississippi statute permitting pre-paid legal expense agreements, the Legislature has required that entities selling legal' expense insurance contain “[a] statement describing a procedure for settling disputes between or among the sponsor, participating or staff attorneys, and the subscribers.” Miss. Code Ann. § 83^9-13(2)(f). The Federal Arbitration Act provides that:

A written provision in any ... contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction ... shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.

9 U.S.C. § 2. This Court “will respect the right of an individual or an entity to agree in advance of a dispute to arbitration or other alternative dispute resolution.” Russell v. Performance Toyota, Inc., 826 So.2d at 721-22(¶ 6) (citing IP Timberlands Operating Co., v. Denmiss Corp., 726 So.2d 96, 104 (¶29) (Miss.1998)).

In determining the validity of a motion to compel arbitration under the Federal Arbitration Act, courts generally conduct a two-pronged inquiry. The first prong has two considerations: (1) whether there is a valid arbitration agreement and (2) whether the parties’ dispute is within the scope of the arbitration agreement.
Under the second prong, the United States Supreme Court has stated the question is “whether legal constraints external to the parties’ agreement foreclosed arbitration of those claims.”

East Ford, Inc. v. Taylor, 826 So.2d at 713 (¶¶ 9-10) (citing Mitsubishi Motors Corp. v. Soler-Chrysler-Plymouth, Inc., 473 U.S. 614, 626, 105 S.Ct. 3346, 87 L.Ed.2d 444 (1985)).

¶ 11. The provision in the pre-paid legal expense agreement provides as follows:

K. Settlement of Disputes: In the event of a dispute, the parties will agree on an impartial attorney who will decide such dispute and that decision will be binding on all parties to such dispute.

This Court has not yet been faced with deciding whether such a statement is sufficient to evidence an agreement to settle disputes through arbitration. However, the U.S. District Court for the Northern District of Mississippi was faced with a remarkably similar situation to the one in the present case. In an action concerning a life insurance policy, the plaintiff signed only the application. The insurer moved to compel binding arbitration that included “all disputes, claims, questions, and controversies of any kind or nature arising out of, or relating any way to, this policy, its subject matter, its negotiation, issuance, or termination” which was contained in the endorsement to the life insurance policy.

¶ 12. After setting forth the Mitsubishi standard, the district court held:

Even with these instructions in mind, this court has no hesitation in finding that the parties never agreed to arbitration and that plaintiff did not waive her right to seek adjudication of her claims in court. The application was the only document plaintiff ever signed; there is, of course, no mention in its contents of the arbitration endorsement. That endorsement is part of the insurance contract which plaintiff received upon completion of the application process. When plaintiff received the policy, she was given the option of “returnfing] it for any reason,” in which case, the policy was “void from the beginning....” There was no notice, no discussion, and no negotiation of the arbitration endorsement, circumstances, which, in this court’s view, hardly signify either agreement or waiver. The arbitration endorsement is therefore not enforceable, and this matter may proceed in this court.

McCreary v. Liberty Nat’l Life, 6 F.Supp.2d 920, 920-21 (N.D.Miss.1998). As in McCreary, the plaintiffs in the case sub judice signed only the application, which did not contain an arbitration provision.

¶ 13. “[Arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.” AT & T Technologies, Inc. v. Communications Workers of America, 475 U.S. 643, 648, 106 S.Ct. 1415, 1418, 89 L.Ed.2d 648 (1986) (citing United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582, 80 S.Ct. 1347, 1353, 4 L.Ed.2d 1409 (1960), and United Steelworkers v. American Mfg. Co., 363 U.S. 564, 570-71, 80 S.Ct. 1343, 1364-65, 4 L.Ed.2d 1403 (1960) (Brennan, J., concurring)). New Jersey courts require that an agreement must clearly foreclose any court remedies in order to be enforceable. “If the defendant wanted to enter into an agreement to bind plaintiff to arbitration under all circumstances, it should have written an inclusive arbitration clause.” Quigley v. KPMG Peat Marwick, LLP, 330 N.J.Super. 252, 270-71, 749 A.2d 405, 415-16 (N.J.Super.Ct.App.Div.2000).

¶ 14. Other states give the benefit of the doubt to favor arbitration, even where the party does not sign the agreement. Comvest, L.L.C. v. Corporate Secs. Group, Inc., 234 Ga.App. 277, 507 S.E.2d 21 (1998) (finding securities purchaser may be bound by agreement to arbitrate even in the absence of his signature); Solle v. Western States Ins. Agency, Inc., 299 Mont. 237, 999 P.2d 328, 332 (¶ 23) (Mont.2000) (holding that any doubts must be resolved in favor of arbitration).

¶ 15. In the case sub judice, we do not find a clear showing that the parties have agreed to arbitration. In so doing, we must balance the intent of the parties with the constitutional right to a trial by jury. Miss. Const, art. 3, § 31. We are persuaded by the district court’s reasoning in McCreary. Just as in McCreary, here there was no notice, no discussion, and no negotiation of the arbitration agreement. Further, based upon the language in this clause, we do not find that an average citizen would realize that he or she is giving up his or her right to a trial by jury under the broad, general language contained in the pre-paid legal expense agreement.

¶ 16. Additionally, the purported arbitration provision is contradicted because the contract also contemplates a lawsuit being filed by either National or the plaintiffs. Both contracts contain the following provision:

E. Specific Exclusions: The following items are specifically excluded and shall not be interpreted as included benefits:
2. Any person or entity who initiates or participates in a lawsuit against the Company or any of its affiliates, or is named as 'a defendant or respondent in a lawsuit initiated by the Company or any of its affiliates, shall be specifically excluded from receiving coverage under this Contract for services related to such lawsuit. All coverage under this Contract for services unrelated to a lawsuit either initiated by or against the Company or any of its affiliates, shall be suspended during the pendency of such lawsuit,

(emphasis added).

¶ 17. Based upon the foregoing, we find that there was not a valid, binding arbitration agreement contained in the pre-paid legal expense agreement. Therefore, the trial court did not err in granting the Plaintiffs’ Motion for Partial Summary Judgment and denying the Defendants’ Motion for Summary Judgment.

CONCLUSION

¶ 18. Based on the prior decisions of this Court, there can be no doubt that when addressing arbitration issues, we have readily acknowledged that there is a strong federal policy favoring arbitration. Russell v. Performance Toyota, Inc., 826 So.2d 719 (Miss.2002); East Ford, Inc. v. Taylor, 826 So.2d 709 (Miss.2002); IP Timberlands Operating Co. v. Denmiss Corp., 726 So.2d 96 (Miss.1998). However, for the foregoing reasons, we affirm the trial court’s grant of partial summary judgment and declaratory judgment finding that the plaintiffs’ claims are not subject to arbitration, and we remand this case to the trial court for further proceedings consistent with this opinion.

¶ 19. AFFIRMED AND REMANDED.

SMITH, C.J., WALLER, P.J., EASLEY, GRAVES AND DICKINSON, JJ., CONCUR. COBB, P.J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. DIAZ, J., NOT PARTICIPATING.