author: hMcDONALD, J.

text:
    Dr. Daniel G. KYLE Louisiana State Legislative Auditor v. LOUISIANA PUBLIC SERVICE COMMISSION and Jack “Jay” Blossman, in His Capacity as Chairman of the Louisiana Public Service Commission East Baton Rouge, LA, and Lawrence St. Blanc, in His Capacity as Secretary of the Louisiana Public Service Commission, East Baton Rouge, LA.
    No. 2003 CA 0584.
    Court of Appeal of Louisiana, First Circuit.
    April 2, 2004.
    Jennifer Schaye, Baton Rouge, Counsel for Plaintiff/Appellee Dr. Daniel G. Kyle, Louisiana Legislative Auditor.
    Lawrence A. Durant, Baton Rouge, Counsel for Amicus Curiae Louisiana Department of Transportation and Development.
    Eve Kahao Gonzales, Amanda H. Smith, Baton Rouge, Counsel for Defendant/Appellant Louisiana Public Service Commission, East Baton Rouge Parish, LA, and Lawrence St. Blanc, in His Capacity as Secretary of the Louisiana Public Service Commission, East Baton Rouge Parish, LA.
    Before: WHIPPLE, KUHN, and McDonald, jj.
   hMcDONALD, J.

The Louisiana Public Service Commission appeals a trial court judgment issuing a Writ of Mandamus ordering the commission to produce all e-mail for inspection and copying by the Legislative Auditor’s office. For the following reasons, the mandamus is recalled.

FACTS AND PROCEDURAL HISTORY

In May 2002, the Legislative Auditor began conducting a performance audit of the Louisiana Public Service Commission (“LPSC” or “the commission”) pursuant to the requirements of La. R.S. 24:522. The commission timely provided all information requested by the legislative auditor, made commission employees available to provide information, and, at the request of the Legislative Auditor, wrote to all gas and electric utilities within the commission’s jurisdiction requesting that they turn over any and all documents pertaining to certain filings made with the commission.

Following an expansion of the audit, the Legislative Auditor requested that the commission send another letter to the utility companies asking that they make available “any and all documents” requested by the auditor, and that the commission turn over to the auditor all their e-mails. On November 19, 2002, at approximately 1:30 p.m. an investigative auditor was advised by the commission’s general counsel that access to the e-mails would have to be delayed until they could be reviewed by counsel to insure that they did not contain privileged material. By letter dated November 20, 2002, the commission’s counsel confirmed their position regarding the emails, and also reminded the legislative auditor’s general counsel that there was a Business and Executive Session of the commission scheduled for November 22, 2002, and requested that any matters for commission decision regarding auditing issues be sent in writing to be placed on the agenda. The ^Legislative Auditor, by letter of November 20, 2002, requested that he be allowed to address the Business and Executive Session of the commission at their meeting scheduled for November 26, 2002, to discuss the “scope limitations” placed on the audit being conducted by his office.

On November 20, at 10:35 a.m., a Petition for Writ of Mandamus and Rule to Show Cause was filed in the Nineteenth Judicial District Court by the Legislative Auditor alleging, inter alia, that the LPSC, contrary to La. R.S. 24:518, had refused to furnish the Legislative Auditor with records that the he has a right to inspect and examine; that the LPSC and its agents and employees have no discretion in regard to producing the documents needed by the Legislative Auditor to conduct the audit; and accordingly, the Legislative Auditor is entitled to a writ of mandamus. In addition to the petition, the court was furnished with an order requiring the LPSC to show cause within two (2) to ten (10) days from service why the petition for writ of mandamus should not be granted. The trial court signed the order, directing the LPSC to show cause on November 22, 2002 at 9:30 a.m. why the petition for writ of mandamus should not be granted.

The LPSC filed a motion to continue the hearing on the rule to show cause, advising the court that the commission’s secretary had received the petition at approximately 11:00 a.m. on Wednesday, November 20, 2002, and that the hearing scheduled for Friday, November 22, 2002 was less than forty-eight hours from the date of service. Further, the LPSC advised the court that all of the information sought by the Legislative Auditor was secured under lock and key; that the LPSC can only act by a 1¿vote of a majority (three) of its members; that the commission had a meeting scheduled for November 26, 2002 at which time it would consider the matter; and that the Legislative Auditor was addressing the commission at that meeting to discuss auditing issues. The LPSC prayed that the hearing on the petition for writ of mandamus be continued until a date no sooner than November 27, 2002. The LPSC also filed exceptions of no cause of action and improper use of summary proceedings.

The trial court heard arguments on the motion for continuance and the exceptions on the morning of November 22, 2003, in conjunction with the hearing on the petition for writ of mandamus. The LPSC’s motions and exceptions were denied and the writ of mandamus was ordered. The court also indicated that three days would be allowed in which to seek a writ to the court of appeal. The Legislative Auditor’s office then asked the court if they could review the e-mails that afternoon, after the judgment was signed. The LPSC argued that the auditors should not be allowed to review the e-mails during the three days that the LPSC had to seek writs. The court gave the LPSC until later that afternoon to argue for a stay of the judgment, which would be necessary to accomplish the objective of denying access to the emails. The record indicates that the matter was later resumed in chambers.

The motion and order for stay of judgment pending consideration of application for writs was granted and signed by the trial court, staying the judgment until Monday, November 25, 2003 at 1:00 p.m. However, a motion and order for suspen-sive appeal, filed by the LPSC at 3:50 p.m. on November 22, 2002 was denied that same day.

A request for expedited consideration and emergency stay was submitted to this court along with the application for supervisory writs from | Kthe trial court’s denial of the suspensive appeal on November 25, 2002. Initially, a stay of all proceedings was ordered and subsequently the writ was granted and the district court was ordered to grant the suspensive appeal. Motions to file amicus briefs on behalf of the Department of Transportation and Development and Jerry Pepper, in proper person, were granted.

The LPSC asserts that the issue presented in this appeal is whether documents protected by the attorney-client work product and deliberative process privileges must be disclosed to the Legislative Auditor in connection with a “Performance Audit.” The Legislative Auditor challenges this, asserting that the trial court only heard arguments and received evidence on the authority of the Legislative Auditor to review the e-mail records of the LPSC. His brief offers law and argument on this issue, as well as briefing the privilege issue asserted by the LPSC.

LAW AND ANALYSIS

The Legislative Auditor asserts that his office has the authority to view all documents while performing an audit pursuant to La. R.S. 24:513 A.(l)(a), which provides in pertinent part:

the legislative auditor shall have access to and be permitted to examine all papers, books, accounts, records, files, instruments, documents, films, tapes, and any other forms of recordation of all auditees, including but not limited to computers and recording devices, and all software and hardware which hold data, is part of the technical processes leading up to the retention of data, or is part of the security system.

The Legislative Auditor contends that there were no exclusions by the Legislature in the authority granted to him to conduct an audit. Further, he asserts that this authority is effective over all documents in whatever form “whether confidential or otherwise,” pursuant to La. R.S. 24:513 H.; noting, lnhowever, that he is required by the same statute to keep confidential any documents, data, or information deemed confidential by law.

The LPSC contends that while the language cited by the Legislative Auditor is in the statute, the courts have never interpreted the statute. Our review of the jurisprudence relating to the Legislative Auditor’s office has not revealed any cases interpreting La. R.S. 24:511 et seq, and specifically La. R.S. 24:513. Therefore, we approach the issue res nova, and our decision will be dependent on interpretation of the applicable statutes.

Statutory interpretation is the province of the judicial branch of government. See Louisiana Civil Code Chapter 2; Louisiana Revised Statutes Chapter 1; Lasyone v. Phares, 2001-1785, p. 4 (La.App. 1 Cir. 5/22/02), 818 So.2d 1068, 1071, writ denied, 2002-1711 (La.10/14/02), 827 So.2d 423. It is performed as required by civil code articles, statutes and well-established jurisprudential rules.

When a law or ordinance is clear and free from all ambiguity, it must be given effect as written. When interpreting a law (ordinance), the court should give it the meaning the lawmaker intended. It is presumed that every word, sentence or provision in the law was intended to serve some useful purpose, that some effect is to be given to each such provision, and that no unnecessary words or provisions were used. Conversely, it will not be presumed that the lawmaker inserted idle, meaningless or superfluous language in the law or that it intended for any part or provision of the law to be meaningless, redundant or useless. The lawmaker is presumed to have enacted each law with deliberation and with full knowledge of all existing laws on the same subject. The meaning and intent of a law is to be determined by a consideration of the law in its entirety and all other laws on the same subject matter, and a construction should be placed on the provision in question which is consistent with the express terms of the law and with the obvious intent of the lawmaker in enacting it. Where it is possible to do so, it is the duty of the courts in the interpretation of laws to adopt a construction of the provision in question which harmonizes and reconciles it with other provisions. (Citations omitted.)

Bunch v. Town of St. Francisville, 446 So.2d 1357, 1360 (La.App. 1 Cir.1984).

17The position of the Legislative Auditor is that an auditee, in this case the LPSC, is required by law to produce anything requested by the auditor during an audit. Because the auditee has no discretion, and has a legal requirement to comply with the auditor’s requests for production, a mandamus was the proper procedural device for compelling production, in this case, of the e-mails. Mandamus is a summary proceeding, which is defined as a writ that may, among other things, be used to direct a public officer to perform ministerial duties required by law. La. C.C.P. arts. 3781, 3861 and 3863; see Reed v. La. Board of Pharmacy, 96-1792, p. 5 (La.App. 1 Cir. 9/17/97), 700 So.2d 926, 928. It is an extraordinary remedy, which must be used by the court sparingly — only to compel action that is clearly provided by law, where it is the only available remedy or where delay by the use of any other remedy would cause injustice. La. C.C.P. art. 3862; Allen v. St. Tammany Parish Police Jury, 96-0938, p. 4 (La.App. 1 Cir. 2/14/97), 690 So.2d 150, 153, writ denied, 97-0559 (La.4/18/97), 692 So.2d 455. Mandamus lies only when a public official refuses to perform a duty the law clearly states he must perform. Bye v. Board of Trustees of Police Pension Fund of City of New Orleans, 274 So.2d 855, 856 (La.App. 4 Cir.1973). It never issues in doubtful cases. State ex rel. Neighborhood Action Committee v. Edwards, 94-0630, p. 4 (La.App. 1 Cir. 3/3/95), 652 So.2d 698, 700.

Our review of the statutes establishing the duties and powers of the Legislative Auditor reveals that mandamus is not the proper procedural vehicle to compel the production of the e-mails sought by the Legislative Auditor. Louisiana Revised Statutes 24:513 L(l) provides in pertinent part:

In the performance of his duties the Legislative Auditor, or any member of his staff designated by him, may compel the production of public and private books, documents, records, papers, films, tapes, and electronic data processing [¿media. For such purpose the legislative auditor and the chairman of the Legislative Audit Advisory Council may jointly issue a subpoena for the production ....

We do not think the use of the permissive “may” indicates that an alternative method of compelling production is mandamus. The legislature specifically provides for the use of mandamus to compel the filing of sworn financial statements in La. R.S. 24:514 H. The statute makes clear that in the event the Legislative Auditor’s office needs documentation to conduct an audit, and the auditee does not provide it, it may be sought through the courts by subpoena.

Further, in this case the Legislative Auditor was conducting a performance audit pursuant to La. R.S. 24:522, The Louisiana Performance Audit Program. This statute requires the approval of the Legislative Audit Advisory Council for such an audit to be scheduled. Louisiana Revised Statutes 24:551 et seq., which relates to the Legislative Audit Advisory Council provides in La. R.S. 24:554 A(l):

The council shall have the power and authority to hold hearings, to subpoena witnesses, administer oaths, compel the production of books, documents, records, and papers, public and private, to order the compiling and furnishing to the legislative auditor of the sworn statements and actuarial valuations which are required by R.S. 24:514, to petition directly, or through a representative authorized by the council, the courts for writs of mandamus to order the compiling and furnishing of the sworn statements and actuarial valuations required by R.S. 24:514, and to do all other things necessary to advise, aid, and assist the legislative auditor in carrying out the duties and responsibilities of his office.

The power to “compel the production” is, as we have shown, by subpoena. While the LPSC did file an exception raising an objection to the use of the |3summary proceeding, it understandably did not seek writs from the trial court’s denial of its procedural objection since the substance of the matter was adjudicated at the same time. However, we note that the mandamus proceeding was not lawful, regardless of whether or not the LPSC could exercise discretion in producing information requested by the Legislative Auditor.

The Legislative Auditor asserts that, cloaked with specific constitutional and statutory authority, he was conducting a performance audit of the LPSC, “a part of the executive branch of state government.” Consistently throughout his brief, he claims his authority derives from the constitution and statutes. The constitution, however, does not grant any authority to the Legislative Auditor, it simply provides for the office as follows:

There shall be a legislative auditor responsible solely to the legislature. He shall serve as a fiscal advisor to it and shall perform the duties and functions provided by law related to auditing fiscal records of the state, its agencies, and political subdivisions. He shall be elected by the concurrence of a majority of the elected members of each house and may be removed by the concurrence of two-thirds of the elected members of each house.

La. Const, of 1974 art. Ill, § 11.

The duties and powers of the Legislative Auditor’s office are provided by statute, and its authority is limited by the constitution.

The Legislative Auditor further maintains that the statutory program under which the office was functioning “requires evaluation of the underlying assumptions on which the LPSC operates.” This is incorrect. | inThe program was created to identify and plan for the state’s long-term needs in addition to finding solutions to present fiscal problems. La. R.S. 24:522 A. However, it does not “require” the Legislative Auditor to perform the functions it is attempting in this case. Louisiana Revised Statutes 24:522 C. provides:

In accordance with this program and the powers and duties otherwise provided by law, including approval of the Legislative Audit Advisory Council, the legislative auditor shall provide the legislature with evaluation and audit of the functions and activities of the agencies of state government. Such evaluations and audits shall be based on standards appropriate for each evaluation or audit. To accomplish this, the legislative auditor may:
(1) Evaluate the basic assumptions underlying any and all state agencies and the programs and services provided by the state to assist the legislature in identifying those that are vital to the best interests of the people of the state of Louisiana and those that no longer meet this goal. (Emphasis added.)

Assuming, as we must, that the emphasized language in the statute was not meaningless or useless, we believe it served the purpose of noting distinctions in evaluations and audits, and requires the Legislative Auditor to conduct evaluations/audits accordingly. Therefore, evaluations/audits may serve any of the ten purposes listed in R.S. 24:522 C., if they are appropriate. What is “appropriate” will vary, depending on the auditee, and on the authority the legislature has to oversee its activities. We also assume that the legislature was mindful of the constitutional limitations on their oversight authority imposed by separation of powers. Indeed, the statute, In considered in its entirety, suggests that they were acutely aware of this.

Louisiana Revised Statute 24:522 D(2) provides:

All state agencies shall develop specific goals and objectives for each of their programs to include measures of performance. They shall report on program goals and objectives in developing annual budgets and shall submit such information to the legislature as part of the appropriations process.

Also on the subject of performance, we note that 24:522 C(10) provides that the Legislative Auditor may:

Evaluate the methods used by each agency in the estimation, calculation, and reporting of its performance, and evaluate the actual outcomes of each agency’s performance with regard to its performance indicators as defined in R.S. 39:2 and provide agencies with information relative to the methods used to evaluate such performance.

A “performance indicator” as defined in La. R.S. 39:2 means:

a statement identifying an activity, input, output, outcome, achievement, ratio, efficiency, or quality to be measured relative to a particular goal or objective in order to assess an agency’s performance. Performance indicator shall also mean measurement of any other aspect of performance as determined by rule issued by the commission of administration under the provisions of the Administrative Procedures Act.

The Legislative Auditor notes that the LPSC is part of the executive branch of government, however, he does not appear to recognize, as the legislature clearly did, the consequences of this fact. The program statutorily created to evaluate the performance of state agencies required the agencies to develop goals and objectives and to measure the performance of their programs. The Legislative Auditor’s function in the process is to “evaluate the methods used by each agency in the estimation, calculation, and reporting of its performance.” It is not his function to evaluate, verify and analyze the communications between employees of a particular agency, the entities they regulate and the citizens as a whole when that agency is an | ^executive branch office. We interpret the statute to thus define the role of the Legislative Auditor because that is what the words of the statute require. To accept the position put forth by the Legislative Auditor that his goal is to “evaluate the effectiveness of the agency as a whole and of its particular programs, policies, services, and activities,” would raise constitutional issues that are not otherwise inherent in the statute.

The record shows an investigative auditor testified that there were three audits in process at the LPSC: a financial audit, a performance audit and an investigative audit. The court was advised that an investigative audit is initiated by the receipt of an allegation of some type of wrongdoing or abuse at the agency, including the possibility of criminal misconduct. We find no definition of, or authority for, an investigative audit into alleged criminal activity in the statute. Significant constitutional issues would be created in that context. However, this issue was not briefed, so we assume that the Legislative Auditor is not maintaining that his entitlement to information differs in the context of an investigative as opposed to a performance audit and our analysis is limited to the performance audit.

The issue before us is whether the LPSC may assert a privilege, either 11sattorney-client or deliberative process, to prevent the Legislative Auditor from having access to communications within their office. The trial court stated that the question before it was whether the attorney-client privilege exists, how far it exists, and what happens when the executive branch agency asserts it and the legislative branch agency demands otherwise. Therefore, the contention of the Legislative Auditor that the only issue before us is whether his office has the right of access to e-mails because that was the only issue on which the court took evidence is erroneous. The issue of the assertion of privilege was well briefed by the Legislative Auditor. It is his position that the privileges asserted by the LPSC are, in fact, the privileges of the State and the State is the client in the attorney-client role described by- the LPSC. In the alternative, he argues that if the LPSC does have the right to claim attorney-client privilege, it has the burden of establishing all essential elements and cannot rely on a blanket assertion of privilege.

We reject the argument that it is the state that is the client, and the only party that can invoke the attorney-client privilege in the matter before us. While it is true that the LPSC is an arm and integral part of the state, that is irrelevant to the issue before us. The communications at issue are between natural persons, an attorney and client, and executive branch officers of the state performing their lawful functions and duties. The “state” can only communicate through one of its officers or employees, and it is these persons who can invoke the privilege. We find absolutely no evidence or indication that the LPSC is attempting to extend the privilege beyond its limits, or to use it as a subterfuge/conspiracy to hinder the administration of justice, or impede the auditor from full review of the e-mail, as asserted by the auditor. According to the record, an auditor 114requested the e-mails on November 19, 2002, and the Secretary of the LPSC indicated that the records could be reviewed and that a named employee of the LPSC would be available to assist in the examination of them. When the auditor arrived to inspect the e-mails, the employee designated to assist the auditor advised him that the e-mail records of the Public Service Commissioners and of their general counsel would not be immediately available for inspection. Shortly thereafter, the commission’s counsel explained that the records could not be released until they could be reviewed to determine whether or not they contained privileged communications. This action taken by the commission’s counsel was reasonable, and probably required, in the performance of her duties.

The auditor cites State v. Green, 493 So.2d 1178, 1181 (La.1986) in support of his position that the privilege should be narrowly construed, asserting that:

The privilege remains an exception to the general duty to disclose. Its benefits are all indirect and speculative; its obstruction is plain and concrete... It is worth preserving for the sake of a general policy, but it is nonetheless an obstacle to the investigation of the truth. It ought to be strictly confined within the narrowest possible limits consistent with the logic of its principle.

In Green, the relevant issue involved a client storing physical evidence with his attorney, which the attorney was obligated by law to turn over to law enforcement officers because it was a 9mm gun believed to have been used in the commission of a crime. The case is so dissimilar to what is before us that its language is not persuasive. We do note, however, that the statement on which the auditor relies requires that there be a duty to disclose, to which the privilege is an exception. In the matter before us, we see no reason why the general counsel of the LPSC or its commissioners have a duty to |1f,disclose their communications to the Legislative Auditor unless they involve financial transactions and are requested in conjunction with a fiscal audit.

Attorney-client privilege is intended to encourage full and frank communication between attorney’s and their clients and thereby promote broader public interests in observance of the law and the administration of justice, as cases too numerous to cite have established. Attorney-client privilege exists to protect not only the giving of professional advice to those who can act on it but also the giving of information to a lawyer to enable him to give sound and informed advice. See Upjohn Company v. United States, 449 U.S. 383, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981). In Upjohn, a magistrate court ordered documents produced as requested by a summons issued by the Internal Revenue Service pursuant to 26 U.S.C. § 7602, in the course of investigating the tax consequences of payments made by a foreign subsidiary of the petitioner to a foreign government. The Supreme Court found that the “narrow scope given the attorney-client privilege by the Court of Appeal not only makes it difficult for corporate attorneys to formulate sound advice when their client is faced with a specific legal problem but also threatens to limit the valuable efforts of corporate counsel to ensure their client’s compliance with the law.” The Court also found that the government had failed to make a sufficient showing of necessity to overcome the protections of the work-product doctrine. The case further established that the applications of privilege, such as attorney-client, should be determined on a case-by-case basis. Although there are many bases on which this case may be distinguished factually, the propositions of law considered above are sound and applicable in the case before us.

Our review of the cases submitted by counsel for both parties, as well as our independent research of the case law, did not disclose any cases that |1fiwould be strictly controlling here. However, many were instructive, as in the Upjohn case discussed above. Similarly, we found Taxation With Representation Fund v. Internal Revenue Service, 646 F.2d 666, 207 U.S.App.D.C. 331 (1981) to contain an excellent discussion of the deliberative process privilege issue:

The deliberative process privilege protects “confidential intra-agency advisory opinions disclosure of which would be injurious to the consultative functions of government.” As was recently noted by Judge Wald in Coastal States [Gas Corp. v. Department of Energy, 617 F.2d 854 (D.C.Cir.1980)], the deliberative process privilege is unique to government and has a number of purposes: it serves to assure that subordinates within an agency will feel free to provide the decision-maker with their uninhibited opinions and recommendations without fear of later being subject to public ridicule or criticism; to protect against premature disclosure of proposed policies before they have been finally formulated or adopted; and to protect against confusing the issues and misleading the public by dissemination of documents suggesting reasons and rationales for a course of action which were not in fact the ultimate reasons for the agency’s action. Thus, the privilege protects documents reflecting advisory opinions, recommendations, and deliberations comprising part of a process by which governmental decisions and policies are formulated, as well as other subjective documents that reflect the personal opinions of the writer prior to the agency’s adoption of a policy. (Citations omitted.)

Taxation With Representation Fund, 646 F.2d at 677, 207 U.S.App.D.C. at 342.

Our review of the cases leaves no doubt that the LPSC has the right to assert both the attorney-client and the deliberative process privileges to prevent access to its records. Therefore, the writ of mandamus was improperly issued by the trial court and is hereby vacated and recalled.

CONCLUSION

Based on the foregoing, we conclude that the writ of mandamus in this matter should not have been issued by the trial court. We find that the LPSC has the right to assert both the attorney-client and the deliberative process privileges to limit access to information sought by the legislative |17auditor. Therefore, the judgment ordering production of e-mails of the LPSC is vacated. Costs of this appeal in the amount of $785.64 are assessed to the Legislative Auditor.

WRIT OF MANDAMUS VACATED.

      . It is unclear whether the November 26, 2002 meeting was in addition to, or in place of, the November 22, 2002 meeting.

      . See 2002 CW 2461.

      . The Legislative Auditor's office asserts, and we accept, that it had this approval. The reference to the Legislative Audit Advisory Council is to note their involvement in the process and the relevance of the cited statute.

      . La. Const, of 1974, art. Ill, § 11.

      . See La. Const, art. II § 2.

      . Louisiana Performance Audit Program, La. R.S. 24:522 A.

      .The LPSC is also created in the constitution, and from it derives specified powers and duties. La. Const, art. IV, § 21.

      . The powers of Louisiana government are divided into three separate branches: legislative, executive, and judicial. La. Const, art. II, § 1. Except as otherwise provided by the constitution, no one of these branches, nor any person holding office in one of them, shall exercise power belonging to either of the others. La. Const, art. II, § 2. This section stands for the proposition that "the Constitution is violated only if one branch of government or its members exercises power belonging to either of the others.” State ex rel. Guste v. Legislative Budget Committee, 347 So.2d 160, 165 (La. 1977). This rule has its origin in a desire for each branch to act as a "check” upon the other and, by so doing, ensure a "balanced” government, as was expressed by the Unite States Supreme Court in Humphrey’s Executor v. United States, 295 U.S. 602, 55 S.Ct. 869, 79 L.Ed. 1611 (1935). AFSCME, COUNCIL # 17 v. State, Dept. of Health and Hosp., 2001-0422, p. 5 (La.6/29/01), 789 So.2d 1263, 1267.

      . We find this perplexing since the function of the Office of Inspector General is to investigate, and help prevent mismanagement, abuse and corruption in the executive branch of state government.

      . Testimony established that the Legislative Auditor based his investigation on The Governmental Auditing Standards Boards (GASB) SAS 82, which provides that the scope of an audit be expanded if information discloses the possibility of a criminal or illegal act that would reflect in the financial statements. La. R.S. 24:513(5)(a) provides that audits conducted by certified public accountants may be accepted by the legislative auditor’s office in lieu of conducting the audit themselves, provided that the audit is “performed in accordance with generally accepted governmental auditing standards and the Louisiana Governmental Audit Guide...” and goes on to explain how that guide is produced. It further requires that the LGAG be the standard for audits and reviews of auditees within Louisiana and mandates its publication.

      .Legislative power, as distinguished from executive power, is the authority to make laws, but not to enforce them or appoint the agents charged with the duty of such enforcement. The latter are executive functions. State ex rel. Guste v. Legislative Budget Committee, 347 So.2d 160, 165 (La.1977). See also, State v. Hammond, 97-1677 (La.App. 4 Cir. 12/30/97), 706 So.2d 530.


source: Caselaw Access Project

author: I .WHIPPLE, J. 11 KUHN, J.,

license: Public Domain

text:
    NU-LITE ELECTRICAL WHOLESALERS, LLC v. ALFRED PALMA INC., Halliburton Energy Services Inc., Pickering Electric Inc., and Donald R. Pickering
    No. 2003 CA 1167.
    Court of Appeal of Louisiana, First Circuit.
    April 2, 2004.
    Francis R. White, III, Covington, for Plaintiff/Appellant, Nu-Lite Electrical Wholesalers.
    Michael G. Gee, Thibodaux, for Defendants/Appellees, Alfred Palma, Inc. and Halliburton Energy Services, Inc.
    Donald R. Pickering, Houma, Defendant, Pro Se.
    Before: WHIPPLE, KUHN and McDonald, jj.
   I .WHIPPLE, J.

In this appeal, plaintiff, a supplier of materials, challenges the trial court’s judgment, granting the motion for summary judgment of two defendants, the owner and general contractor of a construction project, and dismissing plaintiffs claims against those defendants on the basis that plaintiff had not timely filed its material-man’s lien and, thus, had not preserved its claim or privilege against those defendants. For the following reasons, we reverse and remand.

FACTS AND PROCEDURAL HISTORY

Plaintiff, Nu-Lite Electrical Wholesalers, LLC, supplied materials to Pickering Electric, Inc. (Pickering) for a construction project in Fourchon, Louisiana. Halliburton Energy Services, Inc. (Halliburton) was the owner of the project; Alfred Pal-ma, Inc. (Palma) was the contractor; and Pickering, to whom Nu-Lite supplied materials, was the electrical subcontractor.

Nu-Lite supplied materials to Pickering for the Fourchon project from September of 1999 through November 30, 1999. Meanwhile, Palma was experiencing difficulties with Pickering performing its work on schedule. Thus, Palma hired another electrical subcontractor, Volute, Inc. (Volute), to assist Pickering in performing the work. By the end of November 1999, Pickering stopped coming to the job site, and Volute completed the electrical work on the Fourehon project.

On March 24, 2000, Nu-Lite filed a Statement of Claim or Privilege under the Louisiana Private Works Act, LSA-R.S. 9:4801 et seq., with the Clerk of Court for Lafourche Parish, contending it was owed $27,841.03 for materials furnished to Pickering on the Fourehon project. On July 20, 2000, Nu-Lite filed the instant suit against Palma, Halliburton, Pickering and Donald Pickering, seeking to enforce its materialman’s lien and to recover |3the sums allegedly due. Palma and Halliburton responded by filing a motion for summary judgment, contending that Nu-Lite’s claims against them should be dismissed as a matter of law, because its materialman’s lien was not timely filed.

Following a hearing on the motion, the trial court, citing Clegg Concrete, Incorporated v. Kel-Bar, Inc., 393 So.2d 178 (La.App. 1st Cir.1980), unit denied, 398 So.2d 531 (La.1981), concluded that the lien in the instant case had not been timely filed in that it was not “filed within 60 days after the last work performed” (presumably meaning the last work performed by Pickering, the electrical subcontractor to whom Nu-Lite supplied materials for use on the project). Accordingly, the trial court rendered judgment granting Palma and Halliburton’s motion for summary judgment and dismissing Nu-Lite’s claims against these defendants. Nu-Lite appeals.

SUMMARY JUDGMENT

A motion for summary judgment is properly granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with 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. LSA-C.C.P. art. 966(B).

Pursuant to LSA-C.C.P. art. 966(C)(2), if the moving party will not bear the burden of proof on the issue at trial and points out that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action or defense, then the non-moving party must produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. If the opponent of the motion fails to do so, there is no genuine issue of material fact and summary judgment will be ^granted. Keller v. Case, 99-0424, p. 3 (La.App. 1st Cir.3/31/00), 757 So.2d 920, 922, writ denied, 2000-1874 (La.9/29/00), 770 So.2d 354.

In determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria that govern the trial court’s determination of whether summary judgment is appropriate. Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to this case. Keller, 99-0424 at p. 4, 757 So.2d at 922.

DISCUSSION

On appeal, Nu-Lite challenges the trial court’s ruling, contending that the commencement of the lien-filing period due to abandonment applies only when the entire construction project is abandoned by the owner, not when a single subcontractor fails to perform under its subcontract. Thus, Nu-Lite argues, it had sixty days from completion of the project to file its lien, rather than sixty days from Pickering’s abandonment of or default on its subcontract, and, consequently, its lien was timely filed.

The Louisiana Private Works Act, LSA-R.S. 9:4801, et seq., creates a claim in favor of materialmen of a subcontractor against the owner and contractor and a privilege on the immovable on which the work is performed to secure payment of the movables sold that become component parts of the immovable or that are consumed on the work site. LSA-R.S. 9:4802(A)(3) & (B). To preserve the claim or privilege granted by LSA-R.S. 9:4802, where, as here, notice of the contract is not filed, a materialman shall file a statement of claim or privilege within sixty days after: (1) the filing of a notice of termination of the work; or (2) the substantial completion or abandonment of the work, if a notice of termination is not filed. LSA-R.S. |k9:4822(C)(2). The materialman’s claim or privilege is extinguished if not preserved in the manner prescribed in LSA-R.S. 9:4822. Jimco, Inc. v. Paving Contractors, Inc., 546 So.2d 881, 883 (La.App. 1st Cir. 1989).

Thus, the legal issue presented herein is whether the sixty-day period for filing a statement of claim or privilege by a mate-rialman commences upon the abandonment of work by the subcontractor to whom the materialman furnished materials or whether the “abandonment of work” referred to in LSA-R.S. 9:4822 applies only to abandonment of the entire project by the owner or general contractor.

With regard to “abandonment,” LSA-R.S. 9:4822(1) provides that “[a] work is abandoned by the owner if he terminates the work and notifies persons engaged in its performance that he no longer desires to continue it or he otherwise objectively and in good faith manifests the abandonment or discontinuance of the project.” (Emphasis added). However, the statute is silent as to abandonment of the work by a contractor or subcontractor.

In Clegg Concrete, Incorporated, this court held that where one contractor defaults on his job causing an interruption in the project and another contractor is later hired by the owner, materialmen and laborers for the first contractor must file their liens within sixty days of the first contractor’s default. Clegg Concrete, Incorporated, 393 So.2d at 179-180. In crafting this rule, the court observed that other courts had held that in cases in which the work is not completed, the time period for filing a hen did not commence to run until the owner abandoned his hope of completing the structure. Noting the absurdity of this subjective test of when an owner had abandoned his “hope of completion,” the court instead relied upon the objective measure of when the interruption in the work (due to the contractor’s default) actually occurred. Clegg Concrete, Incorporated, 393 | BSo.2d at 179-180. Thus, this court applied the concept of abandonment where a contractor defaulted on his obligation to complete the work and, thus, caused an interruption in the work. Clegg Concrete, Incorporated, 393 So.2d at 179-180. Nonetheless, Nu-Lite argues that a subcontractor’s default on its subcontract or on its portion of the work does not equate to “abandonment of the work” as contemplated in the Private Works Act. We agree.

As Nu-Lite notes, a “work” is defined in LSA-R.S. 9:4808 as “a single continuous project for the improvement, construction, erection, reconstruction, modification, repair, demolition, or other physical change of an immovable or its component parts.” (Emphasis added). Thus, as statutorily defined, a work constitutes the entire continuous project, and not one portion of the project. Accordingly, reading the various sections of the Louisiana Private Works Act as a whole, it follows that “abandonment of the work” as contemplated by LSA-R.S. 9:4822(0(2) for purposes of commencement of the sixty-day lien filing period refers to abandonment of the entire single, continuous project.

Moreover, we note that in Jimco, Inc., this court, in addressing the issue of abandonment of the work, cited with approval T. Harrell, Developments in the Law, 1981-1982, Security Devices, 43 La. L.Rev. 574, 575 (1982)(emphasis added), wherein the writer stated that “where an owner engaged in constructing an improvement on the land, either directly or through a contractor, ceases all activity for some extended period, it behooves those supplying material or labor to the job to ascertain the nature of the stoppage.” See Jimco, Inc., 546 So.2d at 884-885.

Similarly, in Jonesboro State Bank v. Tucker, 381 So.2d 578, 581 (La.App. 2nd Cir.l980)(emphasis added), the Second Circuit Court of ^Appeal deemed “any unexplained and complete cessation of all work” on a construction project to be a manifestation of intent on the owner’s part to abandon the project and was sufficient to put a furnisher of material on notice that the sixty-day period for filing his lien may have begun.

The undisputed facts herein demonstrate that beginning in November of 1999, Volute began working at the jobsite with Pickering to assist Pickering in performing the electrical subcontract work in a more timely fashion. Moreover, after Pickering left the jobsite at the end of November 1999, Volute continued to perform the electrical portion of the work and, as evidenced by invoices in the record, was present at the jobsite at least until February 19, 2000. Thus, Nu-Lite’s statement of claim or privilege, filed on March 24, 2000, was filed within thirty-four days of Volute’s performance of work at the jobsite. Palma and Halliburton have offered no evidence to indicate that no work was being performed on the project for sixty days prior to Nu-Lite’s filing of its statement of claim or privilege on March 24, 2000.

Accordingly, we conclude that Palma and Halliburton, as the proponents of the motion for summary judgment, failed to establish the absence of factual support for one of the elements of Nu-Lite’s claim, inasmuch as work was performed on the project within sixty days prior to Nu-Lite’s filing of its statement of claim or privilege. Consequently, the burden never shifted to Nu-Lite to produce factual support sufficient to establish that it would be able to satisfy its evidentiary burden at trial. See LSA-C.C.P. art. 966(C)(2).

Thus, we conclude that the trial court erred when it determined that Nu-Lite’s statement of claim or privilege was not timely filed and that, as a |smatter of law, Palma and Halliburton were entitled to judgment in their favor dismissing Nu-Lite’s claims against them.

CONCLUSION

For the above and foregoing reasons, the January 31, 2003 judgment dismissing Nu-Lite’s claims against Alfred Palma, Inc. and Halliburton Energy Services, Inc. is reversed. This matter is remanded for further proceedings consistent with the views expressed herein. Costs of this appeal are assessed against Alfred Palma, Inc. and Halliburton Energy Services, Inc.

REVERSED AND REMANDED.

KUHN, J., concurs and assigns reasons.

11 KUHN, J.,

concurring.

The trial court “designated as final for purposes of [immediate] appeal under [La. C.C.P.] Article 1915” the judgment that the majority now reviews on appeal. Without discussion of the propriety of that designation, presumably because it falls within the ambit of Motorola, Inc. v. Associated Indent. Corp., 2002-0716 (La.App. 1st Cir.4/30/03), 867 So.2d 715 (.Motorola I), the majority reverses the judgment, which dismissed Halliburton and Palma from the lawsuit.

In Motorola I, this court held that a partial summary judgment granted pursuant to La. C.C.P. art. 966(E), which “resolves all issues between the parties,” is “governed by the provisions of La. C.C.P. art. 1915(A)(1) and (A)(3)” adding that “[a] trial court’s designation [of such a judgment] as final for appeal [is] unnecessary,” 2002-0716 at pp. 6, 10, 867 So.2d at 718, 721. Motorola I further meted out the perimeters of a correct application of La. C.C.P. art.1915 when a judgment that “ ‘grants a motion for summary judgment’ as provided in article 1915(A)(3) as to ‘all of the claims, demands, issues, or theories ...’ ” was compared with article 1915(B)(1) “which governs partial judgments as to ‘less than all of the claims, demands, issues or theories’ of a cause of action.” 2002-0716 at p. 7 n. 4, 867 So.2d at 718, n. 4. Therefore, pursuant to Motorola I, those partial summary judgments rendered in accordance with La. C.C.P. art. 966(E), which resolve all | ¿issues between the parties are final under article 1915(A)(3); and those partial summary judgments that resolve one or more but less than all of the claims, demands, issues, or theories are final only if the designation required in article 1915(B) has been undertaken by the trial court.

Motorola I provides no guidance and offers no instruction for appellate review in those instances where the trial court has, in fact, made a finality designation of a partial summary judgment, which resolves all issues between the parties. And Motorola I did not otherwise elaborate on the propriety of a trial court’s finality designation of a partial summary judgment, which resolves all issues between the parties. In this case, the judgment dismissing Halliburton and Palma from the lawsuit was a partial summary judgment granted pursuant to La. C.C.P. art. 966(E) that ostensibly resolved the merits of all issues between plaintiff and Halliburton and Pal-ma. Applying Motorola I, the judgment is governed by the provisions of La. C.C.P. art. 1915(A)(1) and (A)(3) and is, therefore, final. Nothing expressed in article 1915(A) specifies a procedure for review of the trial court’s designation of the partial summary judgment as immediately appeal-able. And, thus, lacking a procedural mechanism to do so, this court cannot review the propriety of trial court’s designation of finality of this partial summary judgment.

The majority’s reversal of the judgment dismissing Halliburton and Palma clearly shows the deficiency of the interpretation of article 1915 set out in Motorola I. Because the lawsuit did not halt with the dismissal of these two defendants, a trial on the merits of plaintiffs claims proceeded against Pickering. Now, upon reversal of the dismissal of Halliburton and Palma, another lawsuit against these defendants must be conducted. This piecemeal litigation is an affront to the concept of judicial efficiency that Motorola I attempts to promote.

Under Motorola I, there is no procedure designed for appellate review of trial courts’ finality designations of those partial summary judgments rendered in |,.¡accordance with La. C.C.P. art. 966(E), which resolve all issues between the parties. This result seems ineongruent with the legislature’s express mandate requiring that trial courts designate all other partial judgments as final and reserving to the trial court the opportunity to revise its decision at any time prior to rendition of the judgment that adjudicates “all the claims and the rights and liabilities of all the parties.” See La. C.C.P. art. 1915(B)(2). Motorola I has removed from the trial court the opportunity to revisit its original conclusion that a party is entitled to be dismissed from a lawsuit after it has had the advantage of a trial on the merits that allows for a fuller appreciation of all the evidence. It appears that trial judges who wish to retain the right to revisit a dismissal of a party will perfunctorily deny the motion for summary judgment which is, of course, a decision not subject to appellate review. See La. C.C.P. art. 968.

This very situation is among the reasons for my dissenting position in Motorola I. In this case, the procedural conclusions in Motorola I have brought about the potential for three separate trials and three separate appeals. Those conclusions result in judicial inefficiency, something the state legislature surely did not intend. Thus, while I fully agree with the majority’s disposition on the merits, I feel impelled to concur.

      . In their brief to this court, Palma and Halliburton assert that the judgment as to Halliburton is final, arguing that Nu-Lite did not appeal the dismissal of Halliburton. The trial court signed one judgment on January 31, 2003, dismissing Nu-Lite’s claims as to both Palma and Halliburton, and in its motion for appeal, Nu-Lite requested an appeal from the January 31, 2003 judgment. Apparently because Nu-Lite stated in its motion for appeal that the January 31, 2003 judgment ”grant[ed] the Motion for Summary Judgment filed by Alfred Palma, Incorporated,” but did not mention in the motion for appeal that the motion for summary judgment was a joint motion of both Palma and Halliburton, these defendants now claim that Nu-Lite did not appeal the dismissal of Halliburton. This argument clearly lacks merit where Nu-Lite timely perfected an appeal of the January 31, 2003 judgment that dismissed its claims as to both Palma and Halliburton.


author: | aGAIDRY, J. ^FITZSIMMONS, Judge,

text:
    COFFEE BAY INVESTORS, L.L.C. v. W.O.G.C. COMPANY.
    No. 2003 CA 0406.
    Court of Appeal of Louisiana, First Circuit.
    April 2, 2004.
    Writ Denied June 25, 2004.

      T. Kenneth Watkins, Ann M. Barker, Houma, Counsel for Plaintiff/Appellee Coffee Bay Investors, L.L.C.
    Jude C. Bursavich, Linton Morgan, Michael P. Fruge, Baton Rouge, Counsel for Defendants/Appellants W.O.G.C. Company.
    Before: FOIL, FITZSIMMONS, GAIDRY, McDonald, and McClendon, jj.
   | aGAIDRY, J.

This matter involves appeals from two partial summary judgments in favor of the plaintiff-appellee, Coffee Bay Investors, L.L.C. (Coffee Bay), brought by the defendants-appellants, W.O.G.C. Company (WOGC), Richard P. Watson (Watson), Watson Energy, Inc. (WEI), and Watson Energy, L.L.C. (WEL), arising from an unsuccessful joint venture to develop an oil and gas prospect. For the following reasons, we reverse the partial summary judgments, and remand this matter to the trial court.

FACTS AND PRIOR PROCEEDINGS

On July 6, 1998, following earlier negotiations, WOGC, a Louisiana corporation, and Coffee Bay, a Louisiana limited liability company, entered into an operating agreement relating to the exploration and development of a mineral rights prospect in Lafourche Parish. Under the terms of the operating agreement, WOGC was designated the “operator” and Coffee Bay the “non-operator.” As operator, WOGC agreed to commence the drilling of an initial well by September 1,1998.

On August 15, 1998, Coffee Bay agreed in a separate written agreement to pay WOGC the sum of $171,185.16, in consideration of which WOGC agreed to assign to Coffee Bay an undivided 50% interest in its oil and gas leases affecting acreage on the Coffee Bay well prospect (the Grandi-son lease), as well as an undivided 50% interest in WOGC’s rights based upon a farmout agreement with Louisiana Land and Exploration Company (the LL & E farmout).

The August 15, 1998 agreement incorporated the terms of the prior operating agreement by reference, and further obligated the parties to share the expenses relating to the development of the prospect. The assignment of 13the interest in the Grandison lease was to be made within three days of the receipt of Coffee Bay’s payment, while the assignment of the interest in the LL & E farmout was to be made “when practical [sic ].”

It is undisputed that following Coffee Bay’s payment of the specified sum, WOGC failed to deliver the assignments of interests and that Coffee Bay did not make demand upon WOGC or formally put it in default prior to filing suit on the agreement. It is likewise undisputed that the initial well was not drilled, and that the development of the prospect failed. The reasons for the failure, however, are vigorously disputed by the parties.

In its original petition, filed on May 27, 1999, Coffee Bay sued WOGC, alleging that WOGC’s failure to deliver the assignment of the 50% interests in the leases at issue constituted a “failure of consideration,” entitling it to rescission of the agreement and the return of its initial contribution of $171,085.16.

WOGC answered the petition, denying liability and asserting a reconventional demand for the balance of Coffee Bay’s share of the unpaid costs claimed to be due under the agreement.

On January 21, 2000, Coffee Bay filed an amended petition, adding Watson, WEI, and WEL as new defendants. It also added allegations supporting alternate theories of recovery based upon negligence, willful misconduct, and fraud, as well as violations of the Louisiana Unfair Trade Practices and Consumer Protection Law, La. R.S. 51:1401, et seq., and the Louisiana Blue Sky Law, La. R.S. 51:701, et seq.

WOGC answered the amended petition, denying all allegations, and the new defendants, Watson, WEI, and WEL, jointly filed a separate answer, likewise denying all allegations.

|4On July 27, 2000, Coffee Bay filed its first motion for partial summary judgment, with an “incorporated memorandum” in the body of the motion itself. In that motion, Coffee Bay expressly limited its claim for relief to “the issue of whether or not the failure of WOGC to deliver assignment of certain leasehold and farmout interests ... constitutes a failure of consideration which entitles plaintiff to judgment against WOGC.” It further expressly stated that for purposes of that motion, “motivation is not at issue,” and that its fraud claims were not before the trial court for determination.

The motion was heard on August 25, 2000, and the trial court rendered summary judgment in Coffee Bay’s favor on September 28, 2000, awarding it recovery of its monetary contribution of $178,185.16, with legal interest and court costs. In its written reasons for judgment, the trial court based its judgment on the finding that WOGC’s failure to deliver the assignments of interests was a material breach of the agreement.

On February 27, 2002, Coffee Bay filed its second motion for partial summary judgment and “incorporated memorandum,” seeking judgment against Watson, WEI, and WEL as “alter egos” of WOGC for purposes of imposing liability upon them for the prior judgment against WOGC.

The second motion for summary judgment was heard on April 26, 2002. On June 21, 2002, the trial court granted the motion, rendering judgment against Watson, WEI, and WEL, holding them hable for the same debt represented by the first summary judgment in favor of Coffee Bay.

IsThrough two “revised judgments,” the trial court certified both partial summary judgments as final and appealable on July 29, 2002. The defendants cast in judgment now appeal both judgments.

STANDARD OF REVIEW

The judgments from which this appeal is taken are partial summary judgments. Accordingly, our review must be a de novo review based upon the evidence presented in the trial court, using the same criteria used by the trial court in deciding whether summary judgment is appropriate. Simmons v. Berry, 98-0660, p. 4 (La.App. 1st Cir.12/22/00), 779 So.2d 910, 913-14.

LAW AND ANALYSIS

The summary judgment procedure is expressly favored in the law, and is designed to secure the just, speedy, and inexpensive determination of non-domestic civil actions. La. C.C.P. art. 966(A). Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, admissions, and affidavits in the record 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).

|fiThe mover has the burden of proof that he is entitled to summary judgment. If the mover will not bear the burden of proof at trial on the subject matter of the motion, he need only demonstrate the absence of one or more essential elements of his opponent’s claim, action, or defense. La. C.C.P. art. 966(C)(2). If the moving party points out that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense, then the nonmov-ing party must produce factual support sufficient to satisfy his evidentiary burden at trial. La. C.C.P. art. 966(C)(2); Simmons, 98-0660 at p. 4, 779 So.2d at 914. It is implicit from the codal language, however, that if the mover would also bear the burden of proof at trial on the matter at issue in his motion, he must negate all essential elements of the adverse party’s claim, action, or defense, and the burden does not shift to the adverse party.

Despite the legislative mandate that summary judgments are now favored, factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing the motion, and all doubt must be resolved in the opponent’s favor. Willis v. Medders, 00-2507, p. 2 (La.12/8/00), 775 So.2d 1049, 1050.

JOINT VENTURE

In order to determine whether there was a failure of cause warranting rescission of the contract, the nature of the contract must first be considered. Although Coffee Bay attempts to characterize the agreement as an “agreement to invest,” and the agreement by its express terms disavows the parties’ intent to create either a partnership or a joint venture, it is plain that it in fact established a joint venture under Louisiana law, a fact conceded b^WOGC.

A joint venture has been defined as “a special combination of two or more persons, where in some specific venture a profit is jointly sought without any actual partnership or corporate designation.” Grand Isle Campsites, Inc. v. Cheek, 262 La. 5, 19, 262 So.2d 350, 355 (1972), citing Daily States Publishing Company v. Uhalt, 169 La. 893, 901, 126 So. 228, 231 (1930). Generally, the object and the motive behind a joint venture are the anticipated profits derived from a specific business enterprise. See Hayes v. Muller, 245 La. 356, 367, 158 So.2d 191, 195 (1963); Williamson v. Roberts, 103 So.2d 499, 504 (La.App. 2nd Cir.1958). The existence or nonexistence of a joint venture is a question of fact, although what constitutes a joint venture is a question of law. Grand Isle Campsites, 262 La. at 24, 262 So.2d at 357.

The essential elements of a joint venture are generally the same as those of partnership, i.e., two or more parties combining their property, labor, skill, etc., in the conduct of a venture for joint profit, with each having some right of control. Cajun Electric Power Cooperative, Inc. v. McNamara, 452 So.2d 212, 215 (La.App. 1st Cir.1984), writ denied, 458 So.2d 123 (La.1984). Accordingly, joint ventures are generally treated by our law as a species of partnership, and governed by the law of partnerships. Id. For example, there is a fiduciary duty between members of a joint | ¿venture similar to that which exists between partners in a partnership. Sutton v. Fleming, 602 So.2d 228, 230 (La.App. 3rd Cir.1992).

Louisiana Civil Code article 2801 defines a partnership as follows:

A partnership is a juridical person, distinct from its partners, created by a contract between two or more persons to combine their efforts or resources in determined proportions and to collaborate at mutual risk for their common profit or commercial benefit.

The requisite criteria for the existence of a joint venture (and a partnership) have been defined as follows:

(1) A contract between two or more persons;
(2) A juridical entity or person is established;
(3) Contribution by all parties of either efforts or resources;
(4) The contribution must be in determinate proportions;
(5) There must be joint effort;
(6) There must be a mutual risk vis-a-vis losses;
(7) There must be a sharing of profits.

Cajun Electric, 452 So.2d at 215.

These criteria require findings of fact. Tabco Exploration, Inc. v. Tadlock Pipe & Equipment, Inc., 617 So.2d 606, 609 (La.App. 3rd Cir.), writ denied, 625 So.2d 1057 (La.1993). Our de novo review of the evidence in the record relating to the first motion for summary judgment clearly establishes that the criteria are met, and that the agreement at issue was a joint venture.

FAILURE OF CONSIDERATION OR CAUSE

Louisiana Civil Code article 1967 defines “cause” as “the reason why a party obligates himself.” An obligation may be valid even though the cause is not expressed. La. C.C. art. 1969. The stated cause in a contract is not necessarily conclusive as to the actual cause; an obligation may still be 13enforceable even if the expressed cause is not the actual cause. See La. C.C. art. 1970.

A contract may be rescinded based upon error. But La. C.C. art. 1949 provides that “[e]rror vitiates consent only when it concerns a cause without which the obligation would not have been incurred and that cause was known or should have been known to the other party.” One of the source provisions of article 1949, La. C.C. art. 1825 (1870), described the cause upon which rescission may be sought as the “principal cause, when there are several.” Error as to a subsidiary motive has no effect on the validity of a contract. Marcello v. Bussiere, 284 So.2d 892, 895 (La.1973). As the 1984 revision of the Louisiana Civil Code did not change the law in this respect, the earlier jurisprudence relating to “principal” and “subsidiary” causes retains its relevance. Even after the enactment of present article 1949, courts have continued to speak of the requisite error for rescission in terms of error as to the “principal cause.” See Baro Controls, Inc. v. Prejean, 634 So.2d 46, 48 (La.App. 1st Cir.1994).

Coffee Bay contends that because the assignment of a 50% interest in the leases and the farmout agreement was the “literal and stated consideration” for its initial monetary contribution, this court need look no further as to the parties’ intent. We must disagree with this simplistic view. Coffee Bay cites no codal or jurisprudential authority in support of “failure of consideration” as its theory of the case. The “cause” or reason for Coffee Bay entering into the agreement with WOGC was clearly not to obtain a written assignment of a 50% interest in the undeveloped Grandison lease (only part of the entire prospect), or written assignments relating to both the | inGrandison lease and the LL & E farmout. Rather, the primary reason was to “participate in any production from the prospect,” which is conceded by Coffee Bay to be the ultimate reason why it claims the assignments were needed. The anticipated financial profit corresponds to the essential element of pecuniary gain inherent in a joint venture. This reason constitutes the “cause,” properly speaking, or “consideration” for purposes of determining whether La. C.C. art. 1949’s provisions support a claim for rescission. The assignments of interest were merely a means to the ultimate end or “cause.” Thus, the joint venture is not invalid for failure of cause. See Shields v. Ponsaa, 01-1283, pp. 3-4 (La.App. 5th Cir.2/26/02), 811 So.2d 1058, 1060; Garner v. Hoffman, 93-0155, p. 37 (La.App. 4th Cir.5/23/94), 638 So.2d 324, 342, writ denied, 94-2109 (La.11/11/94), 644 So.2d 1068. We accordingly reverse the first partial summary judgment.

Our conclusion above is reinforced by pertinent language in the case of Hayes v. Muller, 245 La. 356, 158 So.2d 191. There, the two plaintiffs claimed that they and the defendant entered into a verbal contract of joint venture for the purchase of oil and gas leases in a certain area as to which one of the plaintiffs had valuable confidential information. Each party agreed to contribute equal capital for the purchases and to share equally in the costs and profits. The defendant acquired a lease in his name only, allegedly based upon the information provided by the insider plaintiff. The defendant sold that lease for a large sum, and the plaintiffs sued for an accounting of the sale profits for their alleged shares. Although the supreme court on rehearing held that the joint venture was unenforceable since it related to immovable property and was not in writing, the following h language from its original opinion is illuminating on the issue of cause, albeit in an indirect manner:

This suit has not as its object the assertion of an interest in an oil and gas lease, nor does it have as its object an attack upon the title to such a lease.... [Plaintiffs] success is not dependent upon proof that they had an interest in the flease] in the sense that they had title thereto. Success in their cause depends upon whether they can prove that there was a joint adventure and that as a result thereof profits were derived which were contemplated to be divided among the joint adventurers.... [JJoint-adventurers do not have to be co-owners of property used in the business of joint adventure; the property used in the joint adventure may be owned by only one of the joint adventurers and its use only devoted to the purposes of the joint adventure. [Citation omitted.]
[T]hat [defendant] did own that lease relates only collaterally to the right to recover a part of the profits from the contract of joint adventure.
[Plaintiffs’] claim is for money profits derived from the joint adventure, from whatever source derived consonant with the object of the joint adventure, which was an enterprise for profits to be derived from oil and gas leases and royalties brought about by pooling of their knowledge, know-how, and capital. What plaintiffs have set forth in their petition is that they are claiming their share of the profits from the [lease] not by virtue of any interest in the title to that lease, but by virtue of their joint adventure agreement.

Hayes, 245 La. at 368-69, 370, 372, 158 So.2d at 195, 196. (Our emphasis.)

In its petition, as amended, Coffee Bay sets forth alternate theories of recovery against WOGC based upon fraud and breach of fiduciary duty, among others. Because of the limited scope of the first motion for partial summary judgment, our ruling thereon is limited to the theory of failure of cause only, and is not intended to express any opinion as to the merits of Coffee Bay’s other theories of recovery against WOGC, which Coffee Bay expressly excluded from consideration. Accordingly, although the first summary judgment in Coffee Bay’s favor must be reversed, our ruling does |1?not preclude its right to seek recovery based upon those alternate theories following remand.

SINGLE BUSINESS VENTURE AND PIERCING THE CORPORATE VEIL

Unlike its first motion, Coffee Bay’s second motion for partial summary judgment was not limited in scope to a particular issue or theory of recovery under La. C.C.P. art. 966(E). Rather, it was predicated upon the validity of the first judgment against WOGC, and sought to extend WOGC’s liability to its alleged alter egos, WEI and WEL, as a “single business enterprise,” and to Watson personally as their officer and shareholder by virtue of the doctrine of “piercing the corporate veil.”

The extensive facts put forth by Coffee Bay are admittedly strongly suggestive of the possibility of breach of fiduciary duty, fraud, and conduct warranting application of the doctrines of “single business enterprise” and “piercing the corporate veil.” But because the summary judgment holding WOGC liable has been reversed, there remain genuine issues of material fact as to WOGC’s ultimate liability under the alternate theories of recovery advanced by Coffee Bay. A decision on the issues presented in the context of the second motion would in effect result in an advisory opinion having no practical effect if the merits of Coffee Bay’s claims against WOGC are determined adversely to Coffee Bay. See, e.g., Bertucci v. McIntire, 94-412, pp. 3-4 (La.App. 5th Cir.12/14/94), 648 So.2d 956, 958. It is well settled that courts will not render advisory opinions as to abstract, hypothetical, or moot controversies, and that cases submitted for adjudication must be justiciable, ripe for decision, and not brought prematurely. Robinson v. Cain, 01-1910, p. 4 (La.App. 1st Cir.6/21/02), 822 So.2d 100, 102. The determination of the issues raised by the second motion is clearly premature, 113and those issues are not ripe for decision given this case’s present posture. Accordingly, we reverse the second partial summary judgment.

DECREE

The partial summary judgments of September 28, 2000, and June 21, 2002, are reversed. The case is remanded to the trial court for further proceedings consistent with this opinion. All costs of this appeal are assessed to the plaintiff/appel-lee, Coffee Bay Investors, L.L.C.

REVERSED AND REMANDED.

FITZSIMMONS, J., dissents and assigns reasons.

MCDONALD, J., dissents with reasons assigned by Judge FITZSIMMONS.

^FITZSIMMONS, Judge,

dissenting with reasons.

I respectfully dissent from this court’s reversal of the trial court’s grant of summary judgment in favor of Coffee Bay Investors, Inc. (Coffee Bay). Coffee Bay paid the sum of $171,185.16 to W.O.G.C. Company (WOGC) for the stated consideration of an undivided 50% interest in WOGC’s oil and gas leases and 50% of WOGC’s farmout agreement rights. The majority rejects this delineated purpose as constituting the primary reason or cause for Coffee Bay’s entering into the agreement. Instead, it construes the primary purpose of the agreement to equal Coffee Bay’s entitlement to “participate in any production from the prospect.”

It is respectfully submitted that the majority’s distinction between Coffee Bay’s interest in the leasehold rights and Coffee Bay’s rights to production constitutes a distinction without a difference. The facts and legal precepts surrounding the instant case differ from the dicta enunciated in Hayes v. Muller, 245 La. 356, 158 So.2d 191 (1963). In Hayes, the court distinguished a leasehold title to property from a joint venture to participate in the oil and gas business. Coffee Bay’s 50% delineated interest in WOGC’s oil and gas leases and rights in a farmout agreement form the very legal authority by which Coffee Bay would be entitled to participate in production. A 50% interest in the ventures conveys a right to 50% of the production from those prospective ventares, unless otherwise specifically agreed.

li>For these reasons, I would affirm the grant of summary judgment in favor of Coffee Bay.

      . Louisiana Code of Civil Procedure article 966(E) provides that "[a] summary judgment may be rendered dispositive of a particular issue, theory of recovery, cause of action, or defense, in favor of one or more parties, even though the granting of the summary judgment does not dispose of the entire case.”

      . See Fraternal Order of Police v. City of New Orleans, 02-1801 (La. 11/8/02), 831 So.2d 897. As this action was filed prior to January 1, 2000, this appeal is governed by the former version of La. C.C.P. art. 1915, prior to the 1999 amendment which established its current language. Arguably, the first summary judgment could be viewed as appealable without the need for certification, as the former version of article 1915(A)(3) expressly made partial summary judgments, including "issue” summary judgments under La. C.C.P. art. 966(E), final and appealable without the trial court’s certification or the parties' agreement required under former La. C.C.P. art. 1915(B). Such a conclusion would render the appeal of the first summary judgment by WOGC untimely. But the better view is clearly to treat the appeal as timely, since the former version of La. C.C.P. art. 1915(B) literally stated that a judgment as to less than all of the parties required certification, and the supreme court in Shell Pipeline Corporation v. Kennedy, 00-3207, p. 5 (La. 10/16/01), 799 So.2d 475, 478, expressly took note of the "confusion in the law” on this issue, and held the former article’s language to be ambiguous. Unless the ground urged for dismissal is free from doubt, an appeal should be maintained. Id. At the time the first motion for summary judgment was determined, the confusion in interpretation still existed, and the Shell Pipeline opinion had not been rendered. Accordingly, we find WOGC’s appeal of the first summary judgment to be timely.

      . The contractual language expressing the parties’ supposed intent not to create a partnership or joint venture was obviously intended to avoid the designation of the enterprise as a partnership for federal and state income tax purposes only. See, e.g., La. R.S. 47:220.3(A), and Cajun Electric Power Cooperative, Inc. v. McNamara, 452 So.2d 212, 216 (La.App. 1st Cir.), writ denied, 458 So.2d 123 (La. 1984), involving a similar disclaimer by the parties of joint venture status for state sales tax purposes.

      . The principal difference between a partnership and a joint venture recognized by the jurisprudence is that a partnership is ordinarily formed for the transaction of a general business of a particular kind, while a joint venture is usually limited to a single transaction. Daily States Publishing Company v. Uhalt, supra.

      . From the standpoint of correct legal theoiy, the expression “principal cause” is a redundancy. See La. C.C. art. 1949, Comment (e).

      . Coffee Bay summarizes its position on this issue or theoiy of its case in its brief as follows: “It is only through assignment of the leases that [Coffee Bay] could secure its right to participate in any production from the project.”


author: J^FOIL, J. | NITZSIMMONS, Judge,

text:
    Rachel S. MEADOWS, Individually and as Natural Tutrix and Administratrix of Her Minor Daughter, Hailey Pons v. CROSS GATES, INC., the State of Louisiana Through the Department of Transportation and Development, the Parish of St. Tammany Through the Department of Public Works, and Evenflo Company, Inc.
    No. 2003 CA 1408.
    Court of Appeal of Louisiana, First Circuit.
    April 2, 2004.
    Writ Denied June 18, 2004.
    Maria B. Giorioso, New Orleans, for Appellant Plaintiff Rachel Meadows, et al.
    Neil C. Hall, III, Covington, for Appel-lee Defendant St. Tammany Parish.
    Albert C. Miranda, Metairie, for Defendant Evenflo, Inc.
    William B. Culver, New Orleans, for Defendant Department of Transportation.
    Panel composed of Judges FRANK FOIL, BRADY M. FITZSIMMONS and EDWARD J. GAIDRY.
   J^FOIL, J.

This appeal challenges a second judgment of dismissal entered against a governmental defendant where the defendant was dismissed from the litigation due to defective service, and the plaintiff failed to appeal the judgment of dismissal and sought instead to amend the pleadings to bring the governmental defendant back into the lawsuit through two amended petitions. We affirm.

BACKGROUND

On July 23, 1998, Rachel Meadows, individually and on behalf of her minor daughter, filed this tort suit in the 22nd Judicial District Court for the Parish of St. Tammany,Plaintiff alleged that on July 23, 1997, she and her daughter were injured in an automobile accident at the intersection of Cross Gates Boulevard and Louisiana Highway 1090 in St. Tammany Parish. Plaintiff averred that the accident occurred because the driver of the other vehicle could not see a stop sign that was obscured by bushes, trees and other foliage growing in the area of the stop sign. Named as defendants were the State of Louisiana through the Department of Transportation and Development (DOTD); St. Tammany Parish through its Department of Public Works (Parish), which plaintiff alleged was responsible for maintaining street signs and the area surrounding the stop sign; Cross Gates, Inc., a subdivision developer, which plaintiff alleged owned the property where the stop sign was located; and Evenflo Company, Inc., a car-seat manufacturer.

In the petition, plaintiff requested service on St. Tammany Parish through the Secretary of State. The Secretary of State rejected service of the petition on the basis that he could not accept service for any parish entity. On August 7, 1998, the St. Tammany Parish Clerk of Court’s Office advised plaintiffs counsel that the Sheriffs Office returned the citation to be served on the Parish and asked that new service instructions be forwarded to the Clerk’s Office. Attached to the letter was a copy of La. R.S. 13:5107, plainly setting forth the proper service method in a suit against a political ^subdivision of the state. Ten months later, plaintiff requested service to be made on the. Parish by serving the Attorney General’s Office.

On September 17, 2001, plaintiff filed an amending petition adding Cross Gates Utility Company and Cross Gates Homeowners Association, Inc. as additional defendants. On May 8, 2002, four years after the suit was filed, plaintiffs requested service of the September 17, 2001 supplemental and amending petition on the Parish through its director, David deGeneres.

Thereafter, the Parish filed a declinato-ry exception of insufficiency of citation and service of process, asserting that plaintiff failed to perfect service within 90 days on the Parish as required by La.R.S. 13:5107(D), as well as a motion to dismiss the suit pursuant to that provision. On October 10, 2002, the trial judge rendered judgment granting the declinatory exception of insufficiency of service of process, and dismissed the Parish from the litigation without prejudice.

Subsequently, on October 11, 2002, plaintiff filed a second supplemental and amending petition against the Parish, alleging that the original suit had been timely filed against the Parish, constituting an interruption of prescription, and further alleged that the supplemental petition related back to the filing of the original petition. In response, the Parish filed a peremptory exception raising the objection of prescription pursuant to La. R.S. 13:5107(D)(3), which provides that where a Parish entity is dismissed from the litigation for lack of proper service, the filing of the action against other defendants shall not serve to interrupt the running of prescription as to the Parish.

On January 30, 2003, plaintiff filed a motion for leave of court to file a third supplemental and amending petition alleging that La. R.S. [413:5107(D)(3) is unconstitutional. The Parish opposed the motion, urging that it had been filed after the delays for appealing the trial court’s October 10, 2002 judgment dismissing the Parish from the action based on the failure to serve as required by La. R.S. 13:5107 had expired, and therefore, that judgment was a final one. Thus, the Parish urged, at the time the request to file the third supplemental and amending petition was filed, there was no action pending against the Parish that could be amended.

The trial judge denied the request to amend the petition, and granted judgment in favor of the Parish, sustaining its exception of-prescription. Plaintiffs motion for a new trial was denied, and this appeal followed.

DISCUSSION

In her first assignment of error, plaintiff argues that the trial court erred in granting the exception of prescription without finding that her failure to make a timely request for service was in bad faith. Plaintiff also insists that the trial court should have allowed her to amend her petition to attack the constitutionality of La. R.S. 13:5107(D)(3), which states that where a political subdivision is dismissed from a suit for the failure to timely request service, as to that defendant, the filing of the suit does not serve to interrupt prescription.

We disagree. The October 10, 2002 judgment, dismissing the action against the Parish without prejudice, based on the failure to serve as required by La. R.S. 13:5107, was a final, appealable judgment. Batson v. Cherokee Beach and Campgrounds, 470 So.2d 478, 480 (La.App. 1 Cir.1985). Although a judgment of dismissal without prejudice does not bar the filing of another suit on the same cause of action, it does terminate the instant suit. Id. Plaintiff failed to appeal the judgment of dismissal. Instead, plaintiff sought to file a second and third supplemental petition in the ongoing litigation in an attempt to bring the Parish back into the litigation. However, at that stage of the proceeding, the pleadings could not be amended with respect to the Parish, as the trial judge was without | sauthority to allow an amended petition after the suit was terminated by a judgment of dismissal. Batson v. Cherokee Campgrounds, 470 So.2d at 480. Furthermore, the October 10, 2002 judgment dismissing the Parish from the litigation is now a final and definitive judgment. Plaintiff may no longer attack the dismissal of the petition against the Parish for defective service. Thus, the arguments underlying this appeal are moot, and the trial court’s second judgment, dismissing the Parish from the lawsuit with prejudice, was correct.

CONCLUSION

For the foregoing reasons, the judgment appealed from is affirmed. All costs of this appeal are assessed to appellant.

AFFIRMED.

FITZSIMMONS, J., concurs and assigns reasons.

| NITZSIMMONS, Judge,

concurring with reasons.

I respectfully concur. While I disagree that a party, dismissed without prejudice, can never be brought back into an ongoing or continuing suit through amendment of the petition, I agree with the result in this particular case. See La. C.C.P. art. 1151. The pivotal issue here is prescription. The Parish is not a “substitute defendant” to whom Ray v. Alexandria Mall, 434 So.2d 1083, 1087 (La.1983) and La. C.C.P. art. 1153 would apply. To allow the amendment to relate back would also violate the clear wording of La. R.S. 13:5107 D(3), which specifically prohibits the interruption and suspension of prescription under the facts before us.

      . La. R.S. 13:5107(B) provides that in suits against a political subdivision, citation and service may be obtained on the agent designated by the local governing authority; if no agent has been designated, service may be made on the district attorney, parish attorney, city attorney or on the department, board, commission or agency head.


text:
    STATE of Louisiana, Respondent, v. Barry Eugene DORTCH, Applicant.
    No. 38,929-KW.
    Court of Appeal of Louisiana, Second Circuit.
    April 29, 2004.
    Cyrus William Frazier, III, for Applicant, Barry Eugene Dortch.
    Iley H. Evans, District Attorney, Carl Binus Duke, Jr., Assistant District Attorney, for Respondent, State of Louisiana.
    Before DREW, MOORE and LOLLEY, JJ.
   WRIT DENIED.

Suspicionless stops are permitted under a variety of situations. State v. Eppinette, 36,825 (La.App.2d Cir.2/11/03), 838 So.2d 189. Public safety requires some flexibility for police to investigate and prevent crime. State v. Wesley, 28,012 (La.App.2d Cir.4/3/96), 671 So.2d 1257. For example, police officers are justified in ordering passengers out of cars, for officer safety. It may be a slight inconvenience, but it is not a serious intrusion upon privacy interests. State v. Landry, 588 So.2d 345 (La.1991). Equally, a state law enforcement agent’s brief stop of a citizen on a public waterway as a known witness to an observed violation of safety regulations is not a serious intrusion upon privacy interests. See, Illinois v. Lidster, 540 U.S. 419, 124 S.Ct. 885, 157 L.Ed.2d 843 (2004).