author: I «GAIDRY, J. ^DOWNING, J.,

text:
    Wade CLARK, Perry Tucker, Ann Guidry, Martha Lacaze and Harry Dawsey, Each Individually and on Behalf of All Others Similarly Situated v. STATE of Louisiana.
    No. 2002 CW 1936 R.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 28, 2004.
    Writ Denied April 23, 2004.

      Stan P. Baudin, Patrick W. Pendley, Plaquemine, Counsel for Plaintiffs/Applicants Wade Clark, et al.
    Geneva Landrum, Baton Rouge, Counsel for Defendani/Relator State of Louisiana, Department of Revenue.
    Before: DOWNING, GAIDRY, and CIACCIO  JJ.

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

   I «GAIDRY, J.

This class action comes to us on remand from the Louisiana Supreme Court, following its granting the application for supervisory writs of the defendant/applicant, the Secretary of the Department of Revenue of the State of Louisiana (the Department). We are directed to reconsider the application previously denied without assigned reasons and to issue this full opinion. For the reasons set forth below, we grant defendant/applicant’s application for writs in part, and remand the cáse to the trial court for further proceedings, pending further action by the Louisiana Board of Tax Appeals.

FACTS AND PRIOR PROCEEDINGS

Plaintiffs’ petition and other pleadings in the record reveal the factual context of this class action. Cajun Electric Power Cooperative, Inc. (Cajun) was a Louisiana electric cooperative which provided wholesale electric power to various other local distribution cooperatives. Due largely to its investment in the River Bend nuclear plant project, which was plagued by cost overruns and other problems, Cajun filed for Chapter 11 bankruptcy relief in December 1994. During the course of the bankruptcy proceeding, Cajun continued to operate, and the Louisiana Public Service Commission (the PSC) continued to regulate its rates and service.

In 1996, the PSC conducted a ratemak-ing review to align Cajun’s rates with its current costs. The review revealed that since the appointment of the bankruptcy trustee, Cajun had not in fact paid or accrued interest expense on its underlying debt financed primarily by the Rural Utilities Service (the RUS). Because the bankruptcy court had not determined whether continuing accrued interest was owed to the RUS during the hpendency of the bankruptcy, the PSC ordered that such interest continue to be paid by the local distribution cooperatives, which in turn passed such cost on to their customers. The PSC further ordered the interest collected by Cajun to be placed in an escrow fund. State sales taxes attributable to the total charges, including the interest, continued to be remitted by Cajun to the State from November 1996 through September 1999.

In September 1999, the bankruptcy proceeding was settled with the approval of the PSC. Under the terms of the settlement, two-thirds of the interest escrow fund were paid to the PSC to be refunded or otherwise dedicated to the benefit of the taxpayers, with the remaining one-third paid to the RUS.

On August 17, 2000, plaintiffs filed a “Petition for Refund of State Sales Taxes” with the Louisiana Board of Tax Appeals (the Board), naming the Department as “defendant.” They styled their combined claims as a “class action,” seeking refunds on behalf of the class for the sales taxes collected on the interest expense deposited in the escrow fund. According to the petition, the tax payments made by plaintiffs were not made “under protest,” as authorized by La. R.S. 47:1576, et seq., and their claims were made under the Claims Against the State procedure (La. R.S. 47:1481, et seq.). There is no evidence in the record before us that either the Department or the Board has rendered a final decision or judgment as to the administrative claim asserted.

On April 19, 2001, plaintiffs initiated this litigation in the trial court as representatives of a class of taxpayers and customers of the various local distribution cooperatives, seeking virtually the identical relief claimed in the earlier claim instituted with the Board. They styled their petition as a “Petition for Payment of a Thing Not Owed and Refund of State Sales |/Taxes,” alleging that “they have paid a thing not owed to the State of Louisiana in the form of Louisiana state sales taxes,” and that they “specifically seek a refund of these Louisiana state sales taxes” imposed upon the interest “overcharge.”

On June 6, 2001, the Department filed a declinatory exception urging the objections of lack of subject matter jurisdiction and lis pendens, as well as a peremptory exception raising the defense of prescription. The exceptions were set for hearing on August 12, 2002.

On August 8, 2002, shortly before the hearing on the Department’s exceptions, plaintiffs filed a supplemental and amending petition, affirmatively alleging the unconstitutionality of the Claims Against the State procedure, La. R.S. 47:1481, et seq., and the unconstitutionality of La. R.S. 47:1621, et seq., and La. R.S. 47:1431, et seq., as depriving the district courts of their constitutionally-mandated original jurisdiction, among other objections.

Following the hearing, the trial court denied the Department’s exceptions. The trial court did not rule upon the constitutional issues prior to rendering its judgment denying the exceptions. The Department thereupon sought supervisory and remedial writs from this court, which were denied. The Louisiana Supreme Court granted writs and remanded this case to this court for a full opinion after further briefing and argument. Clark v. State, 03-0591 (La.4/25/03), 842 So.2d 388.

DISCUSSION

The Department’s declinatory exception raised the objections of lis pendens and lack of subject matter jurisdiction. Strictly speaking, lis pendens is not applicable here, as that objection presupposes the existence of concurrent subject matter jurisdiction in two or more judicial forums. La. C.C.P. art. 531; State ex rel. Boucher v. Heard, 232 La. 499, 94 So.2d 451 (La.1957). The Department denies that the district courts have concurrent subject matter jurisdiction in asserting the objection as to subject matter jurisdiction, yet concedes that plaintiffs may seek judicial review of the Board’s decision pursuant to La. R.S. 47:1431, et seq. Regardless of its reasoning, we conclude the trial court was correct in overruling the lis pendens objection, and affirm its judgment on that issue.

Louisiana Constitution, article 7, § 1 vests the power of taxation in the legislature, and La. Const, art. 7, § 3 mandates the legislature to “provide a complete and adequate remedy for the prompt recovery of an illegal tax paid by a taxpayer.” To fulfill its latter obligation, the legislature has provided three remedies: (1) the Claims Against the State procedure, La. R.S. 47:1481, et seq.; (2) the Payment Under Protest procedure, La. R.S. 47:1576, et seq., and (3) the Overpayment Refund procedure, La. R.S. 47:1621, et seq.

In its exceptions, the Department characterized plaintiffs’ claims as being brought pursuant to the Overpayment Refund procedure, La. R.S. 47:1621, et seq. The term “overpayment” is defined as a “payment of a tax ... when none was due, or the excess of the amount of tax ... paid over the amount due.” La. R.S. 47:1621(A). The refund which plaintiffs seek clearly is for an “overpayment” within the contemplation of La. R.S. 47:1621, et seq.

lfiThe gravamen of plaintiffs’ administrative claim must be determined by the character of the actual relief sought. Although plaintiffs’ administrative claim was initially filed with the Board rather than directly with the Department, the Department was named as a “defendant” and served through its Secretary. The petition may therefore be viewed as the functional equivalent of a claim for refund of over-payments filed with the Department under La. R.S. 47:1621. Although plaintiffs reference the Claims Against the State procedure, La. R.S. 47:1481, et seq., in their administrative petition, they also pray for a “judgment ... awarding the plaintiffs” and other class members a refund, costs, and legal interest from the date of filing. Notably, the Claims Against the State procedure does not permit the Board to render a “judgment” on a claim brought pursuant to its provisions, but only authorizes it to either “approve” or “reject” such a claim, which is then submitted to the legislature for payment. La. R.S. 47:1481, 1483, 1486. On the other hand, La. R.S. 47:1621, et seq., including in particular La. R.S. 47:1625, authorize the Board to “render judgment” ordering the refund of tax overpayments, which judgments in turn are subject to judicial review pursuant to La. R.S. 47:1434-36. La. R.S. 47:1621, et seq., afford a viable alternative mechanism specifically directed toward the refund of tax overpayments paid voluntarily and without protest, and are not in conflict with La. R.S. 47:1481, et seq. See Pumpkin Air, Inc. v. Tarver, 95-1495, p. 3 (La.App. 3rd Cir.4/3/96), 671 So.2d 1131, 1133.

Plaintiffs oppose the declinatory exception on the grounds that the trial court has original jurisdiction of all “civil matters” under La. Const, art. 5, § 16(A), citing Pope v. State, 99-2559 (La.6/29/01), 792 So.2d 713. Their reliance on the rationale of Pope is misplaced. It is well settled that laws regulating the collection of taxes are sui generis and constitute a system |7to which the general provisions of the Civil Code have little, if any, application. Church Point Wholesale Beverage Co., Inc. v. Tarver, 614 So.2d 697, 708-9 (La.1993). Attempts to assert refund claims against a taxing authority under La. C.C. arts. 2299, et seq., dealing with payment of a thing not due, have consistently been rejected by our courts. Atlantic Pacific Marine Corporation v. State, 94-0243, pp. 3-4 (La.App. 1st Cir.12/22/94), 648 So.2d 1069, 1070-71; Convent Marine Companies v. State, 603 So.2d 790, 794-95 (La.App. 1st Cir.1992). As unequivocally stated by the Supreme Court in Church Point Wholesale, the law does not afford a taxpayer seeking the refund of a sales tax overpayment “a remedy under Civil Code theories of recovery.” Church Point Wholesale, 614 So.2d at 708-9. We conclude that the Board’s jurisdiction is not circumscribed by La. Const, art. 5, § 16(A). And the district court’s jurisdiction vis-a-vis the Board is properly governed by La. Const, art. 5, § 16(B), which provides:

(B) Appellate Jurisdiction. A district court shall have appellate jurisdiction as provided by law. (Our emphasis.)

In Board of Elementary & Secondary Education v. Nix, 347 So.2d 147, 151 (La.1977), the Supreme Court interpreted the phrase “as provided by law,” as used in La. Const, art. 8, § 3(A), to mean “provided by legislation," citing the codal definition of “law” as “the solemn expression]^ legislative will.” Id. (Emphasis in original.) Louisiana Revised Statutes 47:1407, et seq., delineating the “jurisdiction” of the Board, its factfinding authority, and its administrative procedures, clearly fall within the broad power of taxation “vested in the legislature” by La. Const, art. 7, § 1 and the legislature’s constitutional mandate in La. Const, art. 7, § 3 to “provide a complete and adequate remedy for the prompt recovery of an illegal tax paid by a taxpayer.” The substance of La. R.S. 47:1434-36 clearly establishes that district courts’ jurisdiction in judicial review of “decisions or judgments” of the Board is appellate in nature. The existence of a specific statutory procedure generally implies a legislative intent that the special statutory procedure be the exclusive means of obtaining judicial review in the situations to which it applies. Metro Riverboat Associates, Inc. v. Louisiana Gaming Control Board, 01-0185, p. 6 (La.10/16/01), 797 So.2d 656, 660. Thus, we hold that the trial court lacks original jurisdiction to consider the merits of plaintiffs’ claims, as distinguished from the legality or constitutionality of the procedural mechanisms for assertion of those claims. See, e.g., ANR Pipeline Company v. Louisiana Tax Commission, 02-1479, pp. 5-6 (La.7/2/03), 851 So.2d 1145; Triangle Marine, Inc. v. Savoie, 95-2873 (La.10/15/96), 681 So.2d 937, involving the analogous situation of challenges to property tax assessments. Whether plaintiffs’ claims are brought under La. R.S. 47:1621, et seq., or La. R.S. 47:1481, et seq., the trial 19court lacks jurisdiction to determine their merits. Accordingly, the trial court’s judgment is reversed in part, and the objection of lack of subject matter jurisdiction in the declinatory exception is sustained.

We may not properly consider the constitutional issues raised by plaintiffs herein until the trial court has definitively ruled on them. Accordingly, because the validity of the claim procedure and the merits of defendant’s prescription defense are intertwined with the issue of the constitutionality of the challenged statutes, it is necessary for the trial court to rule upon the constitutional issues raised.

Our ruling today renders moot the determination of the trial court’s denial of the peremptory exception of prescription. Until the Board completes its factfinding function and renders its decision on that issue and others, the trial court lacks appellate jurisdiction to review the merits of this case, including the issue of prescription. See, e.g., Metro Riverboat Associates, 01-0185 at pp. 7-10, 797 So.2d at 661-62. Its judgment in that regard is accordingly vacated.

Plaintiffs’ causes of action and claims for refund of the sales tax overpayments asserted in the trial court are stayed, in order to permit plaintiffs to proceed with the pending administrative remedy initially sought. This case is hereby remanded to the trial court for further proceedings, including the determination of the constitutional issues raised by plaintiffs in their petition for declaratory judgment. The outcome of the | ^determination of the constitutionality of the challenged statutes may in turn provoke reconsideration of the nature of the trial court’s jurisdiction and the validity of our decision today.

DECREE

That portion of the judgment of the trial court overruling the declinatory exception’s objection of lis pendens is affirmed, but that portion denying the objection of lack of subject matter jurisdiction is reversed. That portion of the trial court’s judgment denying the peremptory exception of prescription is vacated. Plaintiffs’ cause of action for judicial review of their causes of action and claims for refund of the sales tax overpayments is remanded, but stayed pending the conclusion of the administrative proceeding before the Secretary of the Department of Revenue and the Louisiana Board of Tax Appeals bearing docket number 5313. This matter is further remanded to the trial court for determination of all remaining issues associated with plaintiffs’ petition for declaratory judgment.

WRIT GRANTED, JUDGMENT AFFIRMED IN PART, REVERSED IN PART, AND VACATED IN PART, AND CASE REMANDED AND STAYED IN PART.

DOWNING, J., concurs and assigns reasons.

^DOWNING, J.,

concurs and assigns written reasons.

I concur only in the result reached by the majority. I disagree ardently with the dicta that forms the majority’s rationale and which is contradicted by the result reached. Particularly, I disagree with the majority’s discussion of the district court’s lack of original jurisdiction.

Louisiana Const, art. 5, § 16A provides that except where otherwise authorized by the constitution and except in workers’ compensation matters, the “district court shall have original jurisdiction of all civil and criminal matters.” “In In the Matter of American Waste, 588 So.2d 367, 372 (La.1991), and Moore v. Roemer, 567 So.2d 75, 81 (La.1990), the Louisiana supreme court indicated that ‘civil matters’ are those that have been traditionally adjudicated in the district courts, such as the adjudication of disputes between private parties resulting in money judgments affecting only those parties. ‘Civil matters’ are those where private citizens have historically had the independent right to bring suit in the district court for relief. American Waste, 588 So.2d at 372.” Hull v. Stalder, 00-2730, p. 5 (La.App. 1 Cir. 2/15/02), 808 So.2d 829, 830. The majority opinion at note 7 recognizes that “there is historic authority for the exercise of original jurisdiction by trial courts in tax refund and assessment claims ...,” yet the opinion “hold[s]” that the trial court lacks original jurisdiction to consider the merits of the plaintiffs claims. Further, the opinion then seems to | ^suggest incorrectly and without authority that the existence of appellate jurisdiction over agency decisions in the district court under La. Const, art. 5, § 16B somehow precludes the existence of original jurisdiction under La. Const, art. 5, § 16A.

I do not suggest that the trial court should exercise whatever original jurisdiction it possesses, and it may abuse its discretion in doing so. See CLECO v. Louisiana Public Service Commission, 601 So.2d 1383, 1388 (Lemmon, J., concurring). Nor do I challenge the jurisdiction of the Louisiana Tax Commission or the propriety of its exercising jurisdiction. However, I do resist the tendency to categorize eases into constitutional pigeonholes. We need not do that.

I believe the correct resolution of this matter is founded in the doctrine of primary jurisdiction. “The doctrine is designed to guide a court in determining whether to refrain from exercising its own jurisdiction in a particular case so that an administrative agency with special competence may first decide an issue presented, laying the foundation for a judicial decision or possibly making judicial proceedings unnecessary.” Id. And indisputably in the matter before us, the Tax Commission has special competence in the area of taxation. Clearly then, the Tax Commission is in a better position to evaluate plaintiffs claims and the district court should defer to it.

We need not decide today whether the La. Const, art. 7, § 3 provision for recovery of illegal taxes precludes a district court from having original jurisdiction over all other tax disputes. As Justice Lem-mon stated in CLECO:

In some cases it is very difficult to determine whether the relief demanded by the parties presents issues for court resolution or agency resolution, and some cases present both. Under such Igdrcumstances the court in which an exception of lack of subject matter jurisdiction is filed may consider the doctrine of primary jurisdiction.

CLECO, 601 So.2d at 1388.

The majority opinion correctly grants the exception of lack of subject matter jurisdiction in part and stays the proceedings in the district court. And by staying the “causes of action and claims for refund of sales tax overpayments” in district court, rather than dismissing them, the majority recognizes the district court’s subject matter jurisdiction. Accordingly, I concur in the result only.

      . The local distribution cooperatives sought to intervene in this action, but their motions to intervene were denied by the trial court. The trial court’s judgment in that regard was affirmed by this court in Clark v. State, 02-0703 (La.App. 1st Cir.5/9/03), 849 So.2d 700.

      . The trial court may have been technically correct in overruling the lis pendens objection on the grounds that the Board is not a "court” for purposes of La. C.C.P. art. 531, but we do not resolve the issue on that basis. Considered in its context, it is plain that the alleged procedural defect forming the basis of the lis pendens objection is .actually grounded in plaintiffs' failure to exhaust their administrative remedies sought in their prior-claim with the Board. The true substance of this objection is therefore prematurity, rather than Us pendens.

      . Prior to January 1, 1996, the effective date of present articles 2299-2305, payment of a thing not due was governed by prior La. C.C. arts. 2301-13.

      . The Louisiana Supreme Court has never precisely articulated the scope of "public law.” But it has suggested that matters in which the State is a party and administers a system involving “public rights,” such as environmental law violations and unemployment compensation disputes, are matters of "public law.” Moore v. Roemer, 567 So.2d 75, 80-81 (La.1990). In Pope, the Supreme Court held that the prisoner's tort action at issue clearly did not involve "public law,” and therefore chose to "reserve discussion of that issue for another day.” Pope, 99-2559 at pp. 10-11 n. 14, 792 So.2d at 719 n. 14.

      . At the time Nix was decided, La. C.C. art. I read, "Law is a solemn expression of legislative will.” It was subsequently amended by Acts 1987, No. 124, § 1, to read "The sources of law are legislation and custom.”

      . We undertake this discussion of the constitutional basis of the respective subject matter jurisdiction of the trial court and the Board solely for the purpose of ruling on the exceptions at issue, as we were directed to do by the supreme court. In that regard, we note that although there is historic authority for the exercise of original jurisdiction by trial courts in tax refund and assessment claims, virtually all of those cases arose prior to the enactment of the source provisions of the remedy statutes at issue, and prior to the adoption of the current constitution. We express no position on the due process challenges upon which the trial court must first rule.

      . Arguably, the refund claims ought to be dismissed without prejudice. See La. C.C.P. art. 932(B). But as the trial court here unquestionably retains jurisdiction to determine the related declaratory judgment claims, we conclude the better procedural disposition as to the refund claims is a stay of their determination by the trial court, pending the conclusion of the administrative adjudication, under our inherent authority and mandate to render "any judgment which is just, legal, and proper upon the record on appeal.” La. C.C.P. art. 2164. For practical purposes, this result is virtually equivalent to that which would obtain should we have concluded that the trial court possessed original jurisdiction over the refund claims, but subject to the "primaiy jurisdiction” doctrine. See, e.g., Central Louisiana Electric Company, Inc. v. Louisiana Public Service Commission, 601 So.2d 1383, 1388 (Lemmon, J., concurring).


source: Caselaw Access Project

author: | ¡¿WHIPPLE, J. 11 KUHN, J., It GUIDRY, J.,

license: Public Domain

text:
    CITY OF KENNER and Dominic Weilbaecher v. W. Fox McKEITHEN, Secretary of State of Louisiana.
    No. 2004 CE 0141.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 29, 2004.
    Writ Denied Feb. 4, 2004.
    William F. Wessel, New Orleans, for Plaintiffs/Appellants, Dominic O. Weil-baecher and City of Kenner.
    Angie Rogers LaPlace, Assistant Attorney General, Baton Rouge, for Defendant/Appellee, W. Fox McKeithen, Secretary of State of Louisiana.
    Gerald J. Nielsen, Metairie, for Interve-nor/Appellee, City of Kenner through Police Chief Nick Congemi.
    Before: WHIPPLE, KUHN, GUIDRY, McDonald, and McClendon, jj.
   | ¡¿WHIPPLE, J.

The City of Kenner (the City) and Dominic Weilbaecher, acting mayor of Ken-ner and a qualified elector (collectively, plaintiffs), bring this action objecting to a special election under LSA-R.S. 18.T409(A)(1). W. Fox McKeithen (McKeithen), Secretary of State, was named as defendant pursuant to LSA-R.S. 18:1402(C). Nick Congemi, Police Chief of Kenner intervened, aligned himself with McKeithen, and asserted that he was the correct party to represent the City.

The trial court allowed the intervention to go forward but ruled that Weilbaecher, as a qualified elector, had the capacity to bring the suit. The case was tried solely on documentary evidence, including all exhibits attached to pleadings and memoran-da. Plaintiffs sought both a writ of mandamus ordering McKeithen to conduct the election on September 18, 2004, and an injunction prohibiting the election scheduled for March 9, 2004, from going forward. The trial court denied both the writ of mandamus and the injunction. Plaintiffs appeal.

FACTUAL AND PROCEDURAL BACKGROUND

Louis Congemi (Congemi), mayor of Kenner, was elected to the Jefferson Parish Council. Because he could not simultaneously hold both offices, he advised McKeithen on December 15, 2003, that he was resigning |aas mayor effective December 31, 2003. McKeithen’s office advised the City on December 16, 2003, that the governing authority should call a special election to fill Congemi’s unexpired term on or before December 29, 2003.

The City is governed by a home rule charter adopted July 1, 1974. The charter provides a procedure for filling a vacancy in the office of mayor in Section 3.06. That section provides in pertinent part:

If the Mayor’s unexpired term is greater than one (1) year, within ten (10) days from the creation of the vacancy, the council shall call a special election to be held within sixty (60) days from the creation of the vacancy .... If the Council fails to call the election within the time herein provided, the Acting-Mayor shall call the election within two (2) days of the expiration of the time herein provided for the Council to call the election. Prior to this election, the vacancy shall be filled by the President of the Council as Acting-Mayor.

At the time the charter was adopted, Ken-ner voters expressed their preference for filling the vacant office with haste by specifying that an election be held within 60 days of the creation of the vacancy. The procedure outlined in the charter now conflicts, however, with a later-enacted state statute, LSA-R.S. 18:402, which sets uniform dates for elections statewide. That statute sets specific dates for general and special elections to fill a vacancy in office. In 2004, the only legally permissible dates for those elections are March 9 and September 18. See LSA-R.S. 18:402(E)(l)(b-c) & (G). Selection of a date is further complicated by LSA-R.S. 18:402(E)(1), which requires that the special primary election be held “on the first of the following days that is not less than eleven weeks after the date on which the proclamation calling the special primary election was issued.”

|4The City Council met on December 18, 2003. Weilbaecher, then City Council President, moved that the council adopt a resolution calling for a special election to be proclaimed for March 9 to fill the vacancy. Before the vote, however, he stated that the council had received opinions from the City Attorney and the Secretary of State, and that he was not comfortable voting on the matter until he could be certain that the opinions conformed. He suggested voting against the motion at that time and taking the matter up again in a special meeting before the expiration of the council’s time period to make the proclamation, stating:

I’ll make a commitment that according to the charter we have a certain time period that we have to call this election within and that we’ll do whether it’s through a special meeting before the time period expires or not. So with that, I’d ask that until we determine whether or not some of these questions are answered, we vote against this with a commitment that we actually take this up in the appropriate time frame before the dates expire according to the charter. So with that, I’ll ask that we vote against that, this at this time.

The motion to make the proclamation failed by a vote of two to four.

Congemi then asked if a special meeting was planned to reconsider the proclamation because December 22, 2003, was the last possible date to call a March 9 election. Weilbaecher responded, “I think if we have to call an election within a certain time period, I’m definitely committed to making that happen. Yes sir.”

One of the City’s attorneys was then asked for an opinion regarding “the date and what we have to do.” He responded that there could not be a special election on March 9 unless the council called the election by December 22. Thus, the council was well aware that the window of opportunity for a March 9 election closed on December 22.

|KOn December 19, Congemi called a special council meeting for December 22. A quorum did not appear for the meeting. Congemi then issued a proclamation himself calling for the March 9 election.

On December 29, the council held a special meeting and voted four to three to issue a proclamation calling for a September election. Because this was a special meeting, however, a two-thirds vote, i.e., five of the seven council members, was required. Kenner Home Rule Charter, Section 2.22. Despite the lack of the required votes, a proclamation was forwarded to McKeithen calling for a September election.

Three more proclamations followed. On December 30, Congemi delivered another proclamation to McKeithen calling for a March election. On January 7 and January 11, in two separate proclamations, Weilbaecher, who was now acting mayor, called for a September election.

McKeithen was faced with five different proclamations, none of which complied precisely with legal provisions. The December 22 proclamation by Congemi was made during the ten-day period for the council to act set forth in Section 3.06 of the home rule charter. The December 29 proclamation by the council was made despite an invalid vote. The December 30 Congemi proclamation, though made during the two-day period for the mayor to act, called an election in fewer than eleven weeks. And the January Weilbaecher proclamations were beyond the time limit for either the council or the mayor to act. After consultation with the Louisiana | ^Attorney General’s office, McKeithen decided to call the March election, being of the opinion that the December 22 proclamation most closely followed the wishes of the people of Kenner.

LAW AND ANALYSIS

When an elected official properly tenders a notice of resignation specifying a prospective effective date, “an anticipated vacancy shall be deemed to have occurred on the date the notice ... becomes irrevocable.” LSA-R.S. 18:583(C). The notice becomes irrevocable when received by the secretary of state, “at which time an anticipated vacancy shall be deemed to have occurred.” R.S. 18:583(B)(3). In this case, that date was December 15.

If we construe Section 3.06 of the home rule charter in pari materia with R.S. 18:583, as McKeithen and the Attorney General did, the council had ten days after December 15, the date of the anticipated vacancy, to call a special election. As the tenth day fell on a legal holiday, the council actually had until December 29. But because of the eleven-week provision of 18:402(E)(1), the council could not call a March election after December 22.

At the council meeting of December 18, Weilbaecher led those present to believe he was committed to calling a timely special meeting of the council so that the election could go forward as soon as possible, which was the expressed intent of the Kenner voters in the home rule charter. Yet when Congemi called a special meeting for December 22, Weilbaecher and those aligned with him did not attend, thereby rendering it impossible for the council to call a March election.

|?At that point, Congemi was faced with interpreting the charter to give meaning to the voters’ intent in Section 3.06 to fill vacancies in elected offices quickly. Section 3.06 states that if “the Council fails to call the election within the time herein provided, the Acting-Mayor shall call the election.” By refusing to show up at the December 22 meeting, Weilbaecher and the council members aligned with him made it clear that they had no intention of abiding by the agreement in the December 18 meeting to call a March election by meeting on or before December 22. In Congemi’s opinion, this constituted a failure by the council to call the election within the time provided. He thus issued a proclamation calling for a March election himself.

We agree that the refusal of the council to honor its agreement of December 18 to call a March election was a failure to call the election within the time provided, thus clearing the way for a mayoral proclamation. We note that Section 3.06 calls for the “Acting-Mayor” to make the proclamation when the council fails to do so. However, we believe that Congemi had the authority under the charter to make the proclamation for the following reasons.

At the time Kenner voters adopted the home rule charter; the concept of “anticipated vacancy” was not yet law. The charter envisioned a vacancy occurring when the elected official left office. Thus, Section 3.06 provides that the “Acting-Mayor” call the election if the council fails to do so^because the elected mayor would have already vacated the office. The timing of Congemi’s notice to McKeithen, however, created a situation where there was an anticipated vacancy but no “Acting-Mayor” until 12:01 a.m. on | sJanuary 1. An absurdity would result were we to say that the mayor whose resignation was not effective until midnight, December 31, 2003, could not fulfill the duties set forth in the charter for the acting mayor. When they adopted the charter, the voters of Kenner expressed their wish to have someone backing up the council, in case it failed to do its duty in calling the election. Under the facts presented herein, that backup person is the mayor, whether he is called acting mayor, de facto mayor, or just plain mayor between the date of the anticipated vacancy and the effective date of his resignation.

CONCLUSION

The trial court denied the writ of mandamus, finding McKeithen had no ministerial duty required by law to conduct a special election to fill the vacancy on September 18. See LSA-C.C.P. art. 3863. For the reasons set forth above, we affirm the denial of the writ of mandamus.

The trial court also denied the injunction, stating that plaintiffs had failed to prove irreparable harm. We agree with plaintiffs that injunctions may be issued where specifically provided by law, even if no irreparable injury is shown. LSA-C.C.P. art. 3601. We further agree that LSA-R.S. 18:402(E)(3) specifically provides for injunctive relief to prohibit the placing of the name of a candidate in an improperly called election, and thus irreparable harm need not be shown if the party objecting to the election proves it was improperly called. In this case, however, plaintiffs have failed to prove that the election was improperly called. Therefore, we must affirm the trial court’s denial of the injunction.

| sAppeal costs in the amount of $715.63 are assessed to Dominic O. Weilbaecher.

AFFIRMED.

KUHN, J., concurs with additional reasons.

GUIDRY, J., dissents and assigns reasons.

11 KUHN, J.,

concurring.

I agree with the result and write separately to point • out that, as a practical matter, Section 3.06 of home rule charter has no application to the present facts. At the time of the adoption of the charter, La. R.S. 18:583 was not enacted. Thus, the provision providing a procedure to fill the vacancy in the office of the mayor did not and could not have contemplated the “anticipated vacancy” scenario of this case. Section 3.06 was meant to address an actual vacancy. I believe that under his authority as the administrator of the City, Congemi was empowered to issue the proclamation of December 22, 2003, which called the election for March of 2004. As the majority concludes, this action by the mayor is in accord with the obvious intent of the voters who ratified Kenner’s charter to promptly proceed with filling the vacancy of the office of mayor.

It GUIDRY, J.,

dissenting.

I strongly disagree with the result-oriented approach taken by the majority in fashioning its opinion.

As the majority correctly points out, initially the council had a ten-day period to call a special election. As the tenth day fell on a legal holiday, the council actually had until December 29 Further, because of the eleven-week provision of 18:402(E)(1), the council could not call a March election after December 22. From there, the majority starts down a slippery slope focusing not on the law that they have so clearly articulated, but rather on the alleged bad acts of one of the parties. From there the majority pulls out of thin air an interpretation of the charter that the mayor can decide that some bad faith acts by one or more members of the council can reduce the ten day provision and allow him to act. Having judicially rewritten that provision of the charter, the majority leaps hurdle after hurdle in reaching [3the conclusion that the charter intended the mayor to be “a back-up person”, but then can’t quite decide what to call this judicially created position, whether to call him acting mayor, de facto mayor, or just plain mayor. Whatever you call him, the charter, as plainly written, did not allow him to issue the proclamation before the end of the ten-day period. Therefore, the Secretary of State did not have a legal proclamation, and should be enjoined from calling an illegal election.

Therefore, I respectfully dissent.

      . We note at the outset that venue was not proper in East Baton Rouge Parish. The suit should have been filed in the 24th Judicial District Court in Jefferson Parish, "the district court for the parish where the governing authority calling such special election is domiciled.” LSA-R.S. 18:1404(A)(2); see also 18:402(E)(3). The objection was waived, however, as the parties proceeded to trial without filing an exception raising an objection to venue. See LSA-C.C.P. art. 44.

      . The suit involves both the March 9 and September 18 primary election dates and April 17 and November 2 general election dates. For simplicity's sake, however, we shall refer to the elections simply as the March 9 and September 18 elections.

      . The minutes of the December 22 meeting are not in the record, nor is the December 22 proclamation. Counsel explained during oral argument in the trial court that he had accidentally attached two copies of the December 30 proclamation to his memorandum instead of the December 22 proclamation. The parties do not dispute that there was no quorum for the December 22 special council meeting and that Congemi issued a proclamation on December 22 calling for a March 9 election.


author: LGAIDRY, J. | jFITZSIMMONS, Judge,

text:
    JACKSON NATIONAL LIFE INSURANCE COMPANY v. Julie Esther KENNEDY-FAGAN, Individually and as Executrix of the Succession of Sylvia Antonia Acosta Kennedy-Graves; and Christy Graves, Emory L. Graves, Jr. and Ann Graves, Individually and as Representatives of the Succession of Emory Lea Graves, Sr.
    No. 2003 CA 0054.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 6, 2004.
    Writ Denied April 23, 2004.

      Gregory J. Walsh, New Orleans, Counsel for Plaintiff/Appellee Jackson National Life Ins. Co.
    J. Jackson Stamps, T. Lynn Witt-Stamps, Thomas E. Schafe, III, Slidell, Counsel for Defendant/Appellant Julie Esther Kennedy-Fagan.
    Raymond C. Burkart, Jr., Mandeville, Counsel for Defendants/Appellees Christy Graves and Ann Graves, Individually and as Executrixes of the Succession of Emory L. Graves, Sr., and Emory L. Graves, Jr.
    Before: FOIL, KUHN, PETTIGREW, FITZSIMMONS, and GAIDRY, JJ.
   LGAIDRY, J.

This controversy arises from the tragic murder-suicide of an elderly couple, alleged to have resulted from a suicide pact. It presents a res nova issue for our determination: May the succession or heirs of the insured under a life insurance policy succeed to the rights of a partial beneficiary under the policy terms, if the partial beneficiary was intentionally killed by the insured? We answer this question no, but based upon the policy language, not for the reasons advanced by the appellant. The surviving primary partial beneficiaries succeed to the interest of the primary partial beneficiary predeceasing the insured.

FACTS AND PROCEDURAL HISTORY

The plaintiff, Jackson National Life Insurance Company (Jackson National), issued a policy of term life insurance to Emory L. Graves, Sr. (Mr. Graves), as the insured and owner. The policy was issued on July 23, 1987, with a face amount of $100,000.00. Mr. Graves designated four beneficiaries with equal percentage interests: Sylvia Kennedy Graves (Ms. Graves), his wife; and his three children of an earlier marriage, Christy Graves, M.D., Emory L. Graves, Jr., and Ann Graves (the Graves siblings). Ms. Graves had two children from an earlier marriage.

At the time of the tragic events precipitating this action, Mr. and Ms. Graves had been married for over thirty years. Both were in declining health and suffering from depression. Additionally, Ms. Graves was bedridden as the result of a series of strokes, and had recently become combative toward Mr. Graves and a caretaker.

On July 27, 2001, one of the caretakers attending Mr. and Ms. Graves observed unusual behavior by Mr. Graves upon her departure from their residence. She promptly contacted Mr. Graves’s daughter, Dr. Graves, and ¡¡¡reported that behavior. Dr. Graves went to the residence and discovered Mr. and Mrs. Graves in a rear bedroom. Both had gunshot wounds to their heads. Ms. Graves was deceased at that time, and Mr. Graves died shortly after Dr. Graves discovered them.

The successions of Mr. and Ms. Graves were instituted in separate proceedings. Ms. Kennedy-Fagan was appointed executor of her mother’s estate, and made demand of Jackson National for the policy proceeds on behalf of her mother’s estate. Dr. Graves and her sister were appointed joint executors of their father’s succession, and also made claims for the policy proceeds individually and on behalf of the succession.

Based upon the opposing claims of the decedents’ children, Jackson National invoked the present concursus action, and deposited the policy proceeds and accrued interest in the registry of the trial court. Ms. Kennedy-Fagan and two of the Graves siblings, Dr. Graves and her sister, answered the petition. The latter defendants also filed a reconventional demand against Jackson National, seeking statutory penalties and attorney’s fees.

Dr. Graves and her sister moved for partial summary judgment in favor of the Graves siblings and the succession of Mr. Graves. The trial court heard the motion on September 6, 2002, and granted the motion, awarding each of the Graves siblings 25 percent of the total proceeds and accrued interest, and awarding the remaining 25 percent to Dr. Graves and |4her sister as executors of their father’s succession. The trial court’s judgment was signed on September 11, 2002. From that judgment, Ms. Kennedy-Fagan has instituted this appeal.'

JURISDICTION

Appellate courts have the duty to examine subject matter jurisdiction sua sponte, even when the parties do not raise the issue. McGehee v. City/Parish of East Baton Rouge, 00-1058, p. 3 (La.App. 1st Cir.9/12/01), 809 So.2d 258, 260. A judgment that determines the merits in whole or in part is a final judgment. La. C.C.P. art. 1841. Whether a partial final judgment is immediately appealable, however, must be determined by examining the requirements of La. C.C.P. art.1915.

Our review of the judgment at issue indicates that it resolves all of the issues involved in the principal or original demand, being those issues that determine which of the two competing groups of claimants in a concursus action is entitled to the funds admittedly due and deposited in the registry of the court. La. C.C.P. arts. 4651, 4658. The judgment does not determine all claims between all parties, as the statutory penalties claim asserted by the Graves siblings in their reconventional demand remains unresolved. Nevertheless, the judgment at issue clearly meets the requirements of La. C.C.P. art. 1915(A)(3). Thus, the trial court was not required to “certify” its | ¡Judgment as ap-pealable under La. C.C.P. art. 1915(B), and we clearly have jurisdiction to determine this appeal. Motorola, Inc. v. Associated Indemnity Corporation, 02-0716, p. 7 (La. App. 1st Cir.4/30/03), 867 So.2d 715, 719.

STANDARD OF REVIEW

The judgment from which this appeal is taken is a partial summary judgment. 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.12/20/00), 779 So.2d 910, 913-14. We are authorized and, indeed, required to render a judgment “which is just, legal, and proper upon the record on appeal.” La. C.C.P. art. 2164.

THE MERITS

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).

The mover has the burden of proof that he is entitled to summary judgment. If the mover would also bear the burden of proof at trial on the matter at issue, he must negate all essential elements of the adverse party’s claim, action, or defense. See 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 nonmoving 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 [ fip. 4, 779 So.2d at 914. In determining a motion for summary judgment, the supporting documents submitted by the parties should be scrutinized equally. Walker v. Phi Beta Sigma Fraternity (RHO Chapter), 96-2345, p. 5 (La.App. 1st Cir.12/29/97), 706 So.2d 525, 528.

Interpretation of an insurance contract is usually a legal question which can be properly resolved in the framework of a motion for summary judgment. Madden v. Bourgeois, 95-2354, p. 3 (La.App. 1st Cir.6/28/96), 676 So.2d 790, 792. An insurance policy is a contract between the parties, and should be construed employing the general rules of interpretation of contracts. Blackburn v. National Union Fire Ins. Co. of Pittsburgh, 00-2668, pp. 5-6 (La.4/3/01), 784 So.2d 637, 641. Words in an insurance policy must therefore be given their generally prevailing meaning, unless they have acquired a technical meaning, in which case the technical meaning applies. La. C.C. art.2047; Succession of Fannaly v. Lafayette Ins. Co., 01-1355, p. 3 (La.1/15/02), 805 So.2d 1134, 1137. An insurance policy is construed as a whole, and each provision in the policy must be interpreted in light of the other provisions. Id., 01-1355 at pp. 3-4, 805 So.2d at 1137.

The policy at issue provided the following:

DEATH OF BENEFICIARY The interest of any Beneficiary who dies before the Insured will end at the death of the Beneficiary. The interest of any Beneficiary who dies at the time of or within ten days after the death of the Insured will also end if no proceeds have been paid to that Beneficiary. If the interest of all designated Beneficiaries has ended, any proceeds will be payable to the estate or legal successors of the Insured. (Our emphasis.)

The right of the parties to the insurance contract to provide for the disposition of proceeds in the event any beneficiary predeceases the insured, regardless of the law of successions or creditors’ claims, is expressly recognized in La. R.S. 22:647(D). Under our law, absent a conventional 17agreement, no one has the vested right to the status of a beneficiary under a life insurance contract, if the contingent event which vests such right, the death of the insured, has not occurred. Until then, the parties to the insurance contract are free to change the beneficiary, if such a change is permitted by its terms.

An insurance policy should not be interpreted in an unreasonable or strained manner so as to enlarge or to restrict its provisions beyond what is reasonably contemplated by its terms or so as to achieve an absurd conclusion. Magnon v. Collins, 98-2822, p. 7 (La.7/7/99), 739 So.2d 191, 196. The policy at issue unambiguously provided that the interest of any beneficiary predeceasing the insured ended with the beneficiary’s death. On the record before us, there is no genuine issue of material fact suggesting that Ms. Graves did not predecease Mr. Graves. Thus, her interest as beneficiary ended prior to his death. The question then arises as to the disposition of her prior interest in 25 percent of the proceeds. The trial court concluded that the inchoate interest was payable to Mr. Graves’s estate or succession under the foregoing terms. We disagree. The policy plainly states that its proceeds are payable to the insured’s estate if the interest of all beneficiaries has ended. There are still three named beneficiaries. Ms. Graves’s interest as a beneficiary was not a heritable right, and she acquired no right to any proceeds of the policy prior to her death. Thus, it cannot be concluded that her interest devolves upon her estate, succession or heirs.

The only logical conclusion to be drawn is that the three remaining beneficiaries are entitled to the policy proceeds in the respective proportions to which their assigned interests bear to the total of the remaining interests. | ¡¡This result accords with the intent of La. R.S. 22:647(A) that all lawful beneficiaries are entitled to “the proceeds and avails of the policy” and the insured’s intent, as expressed in the policy. The policy provides that the application is “made a part of the policy,” and that the insuring agreement and application together “constitute the entire contract between the parties.” In the application, the insured had the option of designating the named beneficiaries as either “primary” or “contingent” beneficiaries, in addition to assigning the percentages of their respective interests. All four beneficiaries were designated by Mr. Graves as primary beneficiaries. No contingent or substitute beneficiary was named. One obvious purpose of the provision providing for the policy proceeds to be payable to the insured’s estate upon the death of all beneficiaries was to provide for the situation where the primary beneficiary predeceased the insured and no contingent beneficiary was named. In such event, the estate becomes the “default” beneficiary. See also La. R.S. 22:645. As there are surviving primary beneficiaries here, they are clearly entitled to all proceeds in preference to the “default” beneficiary.

Ms. Kennedy-Fagan’s primary argument before the trial court and this court is founded in the alleged intentional nature of Mr. Graves’s killing of his wife. She forcefully contends that public policy prohibits the heirs of Mr. Graves, the Graves siblings, from “benefiting” from her mother’s killing, by succeeding to her interest as beneficiary. In support of her argument, Ms. Kennedy-Fagan cites La. R.S. 22:613(D) and a plethora of Louisiana and foreign cases upholding the well-recognized principle that a | ^beneficiary of a life insurance policy is not entitled to its proceeds if he or she intentionally or felo-niously kills the insured. This principle was codified in our law by La. R.S. 22:613(D) in 1979, but was recognized as law founded upon public policy prior to that time. See, e.g., Pan American Life Insurance Company v. Hancock, 415 So.2d 422, 424 (La.App. 1st Cir.1982), writ denied, 420 So.2d 444 (La.1982), involving a murder-suicide committed by a beneficiary.

We cannot accept the proposition advanced by Ms. Kennedy-Fagan. Mr. Graves was the insured, not a beneficiary. We fail to comprehend how he could be said to “benefit” from his wife’s death as to the policy proceeds. Natural personality ends at death. La. C.C. art. 24. It does not continue in the form of an “estate” or succession. La. C.C. art. 871, Revision Comment — 1981; La. C.C. art. 872, Revision Comment — 1981. The actual result to which Ms. Kennedy-Fagan raises objection is the supposed “benefit” bestowed upon the Graves siblings, as Mr. Graves’s heirs, by the intentional killing of the fourth primary beneficiary, not the insured. Louisiana Revised Statutes 22:613(D) simply does not address this situation; it is therefore governed by the policy terms, which constitute the law between the parties. Here, the Graves siblings are innocent of any wrongful act upon which the public policy considerations urged by Ms. Kennedy-Fagan are predicated. There is no general concept of hereditary guilt in our law that would operate to deprive them as remaining primary beneficiaries of their rights under the policy. The rights of the Graves siblings to the policy proceeds do not devolve upon them in their status as their father’s heirs by succession, but by virtue of the policy terms.

|inIn summary, the issue of whether Mr. Graves can be found legally responsible for his wife’s death, so as to impose an obligation upon his heirs, is not properly before us, and is irrelevant to our determination of the issues presented in this case.

Ms. Kennedy-Fagan seeks to buttress her argument by characterizing the policy at issue as community property, and urging that a genuine issue of material fact exists as to whether Ms. Graves, as half-owner of the policy, consented to the designation of the named beneficiaries. This argument has no merit. While this term life insurance policy may very well have been community property, our law has consistently recognized a clear distinction between ownership of a policy (and its “lifetime” benefits during the insured’s life) and ownership of its death benefits or proceeds. Berry v. Metropolitan Life Insurance Company, 327 So.2d 521, 523-24 (La.App. 1st Cir.), writ denied, 329 So.2d 760 (La.1976). The death benefits of a life insurance policy not payable to the insured’s estate are not community assets, and thus their ownership is governed by the policy’s terms. Fowler v. Fowler, 03-0590 pp. 7-8 (La.12/12/03), 861 So.2d 181; Standard Life Ins. Co. of the South v. Franks, 278 So.2d 112, 114 (La.1973). A legitimate issue may ultimately arise as to whether Ms. Graves’s succession has any claim against Mr. Graves’s succession for premiums paid with community funds. But that issue is not before us now, and we can state that neither Ms. Graves’s succession nor her heirs have any claim in that respect against the policy proceeds. La. R.S. 22:647(A).

DAMAGES FOR FRIVOLOUS APPEAL

The Graves siblings, by brief, urge that Ms. Kennedy-Fagan’s appeal is frivolous, given the law applicable to the merits, entitling them to damages and reasonable attorney’s fees incurred in opposing the appeal. InThe recovery of damages for frivolous appeal is authorized by La. C.C.P. art. 2164 and Rule 2-19 of the Uniform Rules of Louisiana Courts of Appeal. But La. C.C.P. art 2133 specifically states that an appellee “must file an answer to the appeal” if “he demands damages against the appellant.” Although an answer to an appeal is the ordinary vehicle for asserting a claim for frivolous appeal damages, the jurisprudence has also recognized an independent appeal as an alternate vehicle. See Schulingkamp v. Schulingkamp, 96-2680, p. 4 (La.App. 1st Cir.12/29/97), 706 So.2d 1005, 1007, writ denied, 98-0279 (La.3/20/98), 715 So.2d 1219. The Graves siblings did not file an independent appeal or answer Ms. Kennedy-Fagan’s appeal to assert their claim to such damages. Thus, their claims for damages and attorney’s fees for frivolous appeal are not properly before this court and are accordingly denied.

DECREE

The judgment of the trial court in favor of Christy Graves and Ann Graves, in their representative capacities as co-executors of the succession of Emory L. Graves, Sr., is reversed. The judgment of the trial court in favor of the defendants in concursus, Christy Graves, Emory L. Graves, Jr., and Ann Graves, individually is affirmed, but amended to award each one-third (1/3) of the policy proceeds, or $33,333.33, with proportionate accrued interest, after deduction of court costs. Ail costs of this appeal are assessed to the defendant-appellant, Julie Kennedy-Fagan.

AFFIRMED IN PART, REVERSED IN PART, AND AMENDED.

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

| jFITZSIMMONS, Judge,

concurring in part, with reasons, and dissenting in part, with reasons.

I respectfully dissent from the decision reached by the majority to allocate the contested 25% portion of the proceeds of Mr. Graves’ insurance policy to the remaining three insurance beneficiaries. Additionally, I concur in the result reached in the majority’s discussion of subject matter jurisdiction; however, I would respectfully like to comment on the analysis with additional reasons.

At the time of Mr. Graves’ death, one designated beneficiary, Mrs. Graves, had predeceased him. Thus the issue: to whom, or what, does her share flow? The insurance policy application allowed the insured to designate both “primary” and “contingent” multiple beneficiaries, and to assign whatever percentage interests he wished. Mr. Graves assigned each of the four primary beneficiaries “25%”; however, he did not designate any contingent beneficiaries. Moreover, the policy did not indicate that multiple beneficiaries were to have equal interests.

As written, the policy calls for only one contingency, which rests solely on the situation that when the interest of “all” beneficiaries has ended, the proceeds would be payable to the estate or legal successors of the insured. Since all of the beneficiaries were not deceased, the majority argues that Mrs. Graves’ 25% must flow to the three remaining beneficiaries. However, I would respectfully dissent on the grounds that such an inference stretches the interpretation of the insurance contract beyond its parameters. The terms of the policy do not address what happens when one, two or even three beneficiaries have predeceased the insured. 12Moreover, the insured had the ability to provide for a contingent disposition should a beneficiary pre-decease him. He elected not to so provide. As a result, the policy is clear that the living beneficiaries receive their set portions according to the terms of the contract. Mrs. Graves’ inchoate portion does not de facto devolve to the three surviving beneficiaries, but rather to the estate of their father because no contingent beneficiary is contractually designated. From here on out, the will of the decedent would determine the distribution in the absence of a contractual provision. It is for these reasons that I would affirm the trial court.

Turning briefly to the issue of subject matter jurisdiction, it would seem that the provisions of La. C.C.P. art. 1915A(1) would apply, rather than exclusively relying on La. C.C.P. art. 1915A(3) to determine that certification by the trial court was not necessary. The partial judgment resolves all claims involving one of the parties, i.e., Jackson National Life Insurance Company. Thus, I concur in this court’s ultimate conclusion on the issue of this court’s jurisdiction.

      . A wrongful death action has also evidently been filed by Ms. Kennedy-Fagan against the Graves siblings, as the heirs of Mr. Graves, through his succession.

      . Emory L. Graves, Jr. never filed an answer to Jackson National’s petition for concursus. However, this does not preclude his recovery of any sum determined to be due him, as he occupies the status of both plaintiff and defendant, and issue need not be joined by default if a defendant fails to answer. La. C.C.P. art. 4656. Additionally, no other party moved to limit the time for him to file an answer under La. C.C.P. art. 4657, so the preclusive effect of an order issued in response to such a motion does not come into play here.

      . As the original demand is a concursus action, there is not even a residual issue as to the award of court costs; under the law, they are required to be deducted from the funds on deposit, unless the court in its discretion awards the successful claimant the costs so deducted against the unsuccessful claimants. La. C.C.P. art. 4659. The judgment here is silent as to costs, so it must be presumed that the trial court declined to exercise its discretion in that regard.

      . The judgment at issue does not actually dismiss any party from the principal demand, so it technically does not meet the criterion of dismissal required under La. C.C.P. art. 1915(A)(1). Nevertheless, for all practical purposes, it resolves all issues as to the sum in dispute els between the debtor and the two competing groups of claimants, and the debt- or is clearly entitled to its discharge or dismissal of the principal demand. La. C.C.P. arts. 4658, 4662. Thus, it is not an "issue” summary judgment under La. C.C.P. art. 966(E), and meets the criterion of La. C.C.P. art. 1915(A)(3).

      . The movers put forth evidence that Ms. Graves died instantaneously from the gunshot wound to her head, that she was already deceased when her body was discovered, that her husband inflicted her fatal wound, and that he died after their bodies were discovered. This evidence was essentially unrebutted by Ms. Kennedy-Fagan.

      . See 4 Lee R. Russ & Thomas F. Segalla, Couch on Insurance 3rd § 61:39-40 (2003). The result we reach here as to the disposition of Ms. Graves's interest as beneficiary was not urged by any party to this appeal. Nevertheless, it is the correct and proper result under the law. The purpose of La. C.C.P. art. 2164 is to give an appellate court complete freedom to do justice on the record irrespective of whether a particular legal point or theory was made, argued, or passed on by the court below. Rachal v. Rachal, 35,074, p. 8 (La.App. 2nd Cir.10/12/01), 795 So.2d 1286, 1291.

      . A corollary legal principle, founded upon the same public policy, is the disqualification of an heir who is judicially determined to have participated in the intentional killing or attempted killing of the decedent. La. C.C. art. 941.


author: | ¡ARTHUR J. PLANCHARD, J. Pro Tem.

text:
    Betty GARRETT v. Celeste McGASKEY, et al.
    No. 04-175.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 13, 2004.
    Honorable Louie Bernard, Clerk, Natch-itoches Parish, Natchitoches, LA, for Defendant/Appellee.
    Charles Raymond Whitehead, Jr., Whitehead Law Offices, Natchitoches, LA, for Plaintiff/Appellee, Betty Garrett.
    Nathaniel Williams, Esq., Williams Family Law Firm, Natchitoches, LA, for Defendant/Appellant, Celeste McGaskey.
    Court composed of Judges JOHN D. SAUNDERS, MICHAEL G. SULLIVAN, and ARTHUR J. PLANCHARD, J. Pro Tem.
   | ¡ARTHUR J. PLANCHARD, J. Pro Tem.

The Defendant-Appellant, Celeste McGaskey, appeals the judgment nullifying and voiding her candidacy for councilperson for district number three of the City of Natchitoches and ordering her name stricken from the list of qualified candidates for this elected office. For the reasons given herein, we reverse and set aside the judgment of the trial court and enter judgment dismissing the instant action.

The Plaintiff-Appellee, Betty Garrett, filed this suit challenging McGaskey’s candidacy for couneilperson for district number three of the City of Natchitoches. The action alleges that McGaskey is an employee of the United States Postal Service (USPS), and that as such, she is statutorily precluded from being qualified to run for this position. Furthermore, Garrett contends that McGaskey is barred from becoming a candidate for this position pursuant to the USPS employees’ regulations.

McGaskey filed several exceptions and an answer to the petition. McGaskey raised the exceptions of prematurity, no cause of action, and res judicata.

Trial of this matter was held on February 9, 2004. The trial court entered a written, signed judgment on this same date declaring that McGaskey’s candidacy was null and void. The trial court ordered the clerk of court to strike McGaskey’s name from the list of qualified candidates. McGaskey filed a motion for appeal from this ruling on February 10, 2004, which was granted this same date. The record in this case was lodged in this court on February 12, 2004.

Through the exception of prematurity, McGaskey attempts to characterize this action as a challenge to her holding office brought pursuant |sto La.R.S. 42:65. To the contrary, Garrett’s suit challenges McGaskey’s candidacy pursuant to La.R.S. 18:481, et seq. McGaskey admits that this action was filed following her qualifying to run for the city council position. Therefore, we find that the exception of prematurity is not well founded and must be denied.

McGaskey next argues in this court that the exception of no cause of action should be maintained because Garrett has asserted no ground cognizable under La.R.S. 18:492 to challenge her candidacy. However, La.R.S. 18:492(A)(3) and (A)(4) provide that an action objecting to a person’s candidacy may be based on the ground that, “(3) The defendant does not meet the qualifications for the office he seeks in the primary election,” and “(4) The defendant is prohibited by law from becoming a candidate for one or more of the offices for which he qualified.” In the instant case, Garrett argues that La.R.S. 42:63 prohibits McGaskey from qualifying as a candidate for the city council position. If, on consideration of the merits of this case, it is determined that La.R.S. 42:63 prohibits a person by law from-qualifying as a candidate, then Garrett has a cause of action for challenging McGaskey’s candidacy pursuant to 18:492. Thus, we find that the essence of McGaskey’s argument in this regard goes to the merits of this action, and we, therefore, deny the exception of no cause of action.

McGaskey argues next that the trial court should have dismissed this action on her exception of res judicata. McGas-key relies on an action filed by Sylvia Morrow which also challenged her candidacy. This earlier filed action was dismissed with prejudice on the motion of the plaintiff therein before the matter went to trial. McGaskey avers that the petition in the earlier filed action was identical to the petition instituting the matter sub judice other than the | ¿change in the identity of the plaintiff. Therefore, McGaskey posits that this matter is now res judicata.

McGaskey acknowledges that La.R.S. 13:4231 requires that in order for res judi-cata to apply, the actions must be between the same parties. Regardless, McGaskey cites this court to several cases in support of her position that jurisprudential exceptions to the party identification have been established. We find the cases cited by McGaskey to be inapposite to the instant case.

In State, Dept. of Social Serv. v. Coleman, 616 So.2d 844 (La.App. 3 Cir.1993), the state’s action on behalf of a minor child to establish paternity was found to be precluded by res judicata since the child herself, represented by counsel, had previously pursued and lost a paternity action against the defendant in the state’s suit. However, in Coleman there was an identity of the parties between the two actions in that the child had brought the first action and the state was bringing the second action on behalf of the same child. Similarly, in the second case on which McGaskey relies, Frank v. St. Landry Parish School Bd., 540 So.2d 1200 (La.App. 3 Cir.1989), this court found that the plaintiffs in the case on appeal were also parties in prior litigation between the same defendants on the same claims.

In the instant case, the plaintiff in the earlier suit did not represent the interests of the plaintiff in the current action. There is no identity of parties between these two actions; therefore, there is no res judicata effect from the dismissal of the earlier suit on the instant matter. Thus, we find the exception of res judicata is without merit.

In considering the merits of the instant case, we would first note that the trial court did not find that Garrett could challenge McGaskey’s candidacy [ Bbased on the regulations for employees with the USPS. No party to this litigation has challenged this portion of the trial court’s ruling; therefore, this court pretermits any discussion as to that issue.

Garrett argues that McGaskey is in violation of La.R.S. 42:63. As stated above, based on this premise, Garrett contends that McGaskey does not meet the qualifications for a candidate for the city council seat and should be found by this court to be prohibited by law from seeking this position.

Louisiana Revised Statutes 42:63(A) reads:

A. (1) Except as otherwise provided in this Subsection, no person holding an elective office, appointive office, or employment in any of the branches of state government or of a political subdivision thereof shall at the same time hold another elective office, appointive office, or employment in the government of a foreign country, in the government of the United States, or in the government of another state.

McGaskey has admitted that she is an employee with the USPS. However, we find that the trial court erred in interpreting this statute to disqualify McGaskey from qualifying to run for the city council position. Louisiana Civil Code Article 9 states, “When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature.” The prohibition pronounced in 42:63 is from “holding an elective office,” not from qualifying as a candidate to hold an elective office. The importance of this distinction is that the former only requires a choice of the person once the conflicting position is assumed, whereas the latter would require a choice before assuming the conflicting position.

Had the legislature intended to prohibit a person holding a government job from qualifying to run for an elective position or vice versa, the legislature 1 ficould have very easily expressed this intent in the wording of 42:63. However, since the words of this statute are clear and unambiguous and since the application of this statute as worded does not lead to absurd consequences, we find that the trial court erred in disqualifying McGaskey under this statute.

Accordingly, we hereby reverse and set aside the ruling of the trial court. Judgment is rendered dismissing this action, and Louis Bernard, Clerk of Court for Natchitoches Parish, is hereby ordered to reinstate Celeste McGaskey as a qualified candidate for the position of councilperson for district three of the City of Natchitoch-es. All costs of this matter are assessed against the Plaintiff-Appellee.

REVERSED AND RENDERED.