author: | JAMES L. CANNELLA, Judge.

text:
    Janice ISAAC and Laurence Leslie v. BENSON CHEVROLET COMPANY, General Motors Corporation, Inc., New United Motor Manufacturing, Inc., ABC Insurance Company, XYZ Insurance Company, and DEF Insurance Company.
    No. 04-CA-419.
    Court of Appeal of Louisiana, Fifth Circuit.
    Sept. 28, 2004.

      Jasper N. Pharr, New Orleans, LA, for Plaintiff/Appellant.
    Ernest P. Gieger, Jr., John E. Baay, II, New Orleans, LA, for Defendant/Appellee.
    Panel composed of Judges EDWARD A. DUFRESNE, Jr., JAMES L. CANNELLA and THOMAS F. DALEY.
   | JAMES L. CANNELLA, Judge.

The Plaintiffs, Janice Isaac and Laurence Leslie, appeal from the trial court judgment in favor of the Defendant, General Motors Corporation, Inc., which dismisses the Plaintiffs’ case as abandoned. For the reasons which follow, we affirm.

The Plaintiffs filed suit on December 17, 1998 for damages that they sustained in an automobile accident that occurred in 1997. Several preliminary matters were handled and discovery progressed. The last court action of record in the case before the filing by the Defendant of the Ex Parte Motion to Dismiss was dated October 14, 1999 and was a consent order in response to the Defendant’s Rule to Compel Responses to Interrogatories and Request for Production of Documents. However, the Defendant admits, and attached evidence, that discovery continued thereafter, with the last activity occurring on September 12, 2000, when the Defendant requested medical records of Laurence Leslie from Pendleton Memorial Methodist Hospital pursuant to a medical records release completed by him on August 81, 2000. On September 22, 2003, the Defendant | Tiled an ex parte motion to dismiss the suit on the ground of abandonment, with supporting documentation and an affidavit attesting that no steps in the prosecution of the action occurred of record or through discovery after September 12, 2000. The trial court signed the order dismissing the suit. The Plaintiffs were served through their attorney with the judgment and filed a motion to set aside the dismissal. On October 30, 2003, the trial court rendered judgment with reasons denying the motion. It is from this ruling that the Plaintiffs appeal.

The Plaintiffs argue herein, as they did in the trial court, that they clearly had no intent to abandon their case and this fact was within the knowledge of the Defendant. Supporting this contention, the Plaintiffs point to numerous facts, although not appearing of record, that evidence their pursuit of the case. Counsel for the Plaintiffs alleged that he tried to contact defense counsel by telephone and never received a return call. He stated that on May 7, 2003 he forwarded a letter to defense counsel regarding settlement of the case. Upon receiving no response, he forwarded a certified letter to defense counsel requesting available dates to schedule a Settlement Conference/Pretrial Conference with the trial court. Again, receiving no response, he mailed to the Defendant a copy of the Motion and Order to Set PreTrial/Settlement Conference that he intended to file, but he did not file the motion with the trial court because he sought to obtain a mutually acceptable date.

The Plaintiffs’ counsel contends that a period of several months passed where his attempts to contact defense counsel by phone and mail went unanswered. He argues that defense counsel’s failure to respond, while waiting for the abandonment period to run, is a violation of the Professionalism Code and outside of the intent of La. C.C.P. art. 561, the abandonment statute. Thus, the Plaintiffs argue that the judgment by the trial court dismissing their case as abandoned should be set aside.

|4La C.C.P. art. 561, on abandonment of actions, provided:

A. (1) An action is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of three years, unless it is a succession proceeding:
(a) Which has been opened;
(b) In which an administrator or executor has been appointed; or,
(c) In which a testament has been probated.
(2) This provision shall be operative without formal order, but, on ex parte motion of any party or other interested person by affidavit which provides that no step has been taken for a period of three years in the prosecution or defense of the action, the trial court shall enter a formal order of dismissal as of the date of its abandonment. The order shall be served on the plaintiff pursuant to Article 1313 or 1314, and the plaintiff shall have thirty days from date of service to move to set aside the dismissal. However, the trial court may direct that a contradictory hearing be held prior to dismissal.
B. Any formal discovery as authorized by this Code and served on all parties whether or not filed of record, including the taking of a deposition with or without formal notice, shall be deemed to be a step in the prosecution or defense of an action.
C. An appeal is abandoned when the parties fail to -take any step in its prosecution or disposition for the period provided in the rules of the appellate court.

In James v. Formosa Plastics Corp. of Louisiana, 01-2056 (La.4/3/02), 813 So.2d 335, 338 the Louisiana Supreme Court explained:

Article 561 requires three things: (1) that a party take some “step” in the prosecution or defense of the action; (2) that it be done in the trial court and, with the exception of formal discovery, on the record of the suit; and (3) that it be taken within three years of the last step taken by either party. Clark v. State Farm Mut. Auto. Ins. Co., 00-3010 (La.5/15/01), 785 So.2d 779; Chevron Oil Co. v. Traigle, 436 So.2d 530 (La.1983).
|rA party takes a “step” in the prosecution or defense of an action when he takes formal action before the court intended to hasten the matter to judgment, or when he takes a deposition with or without formal notice. Clark at p. 6, 785 So.2d at 784. See also Chevron, 436 So.2d at 532; Melancon v. Continental Cas. Co., 307 So.2d 308, 312 (La.1975); Sliman v. Araguel, 196 La. 859, 200 So. 280, 281 (1941); Augusta Sugar Co. v. Haley, 163 La. 814, 112 So. 731, 732 (1927).

This Court has found that “it is well settled that a ‘step in prosecution’ of an action, as used in La. C.C.P. art. 561, requires some formal move, before the court, intended to hasten judgment. Jones v. American Bank & Trust Co., 175 La. 160, 143 So. 35 (1932); Richey v. Fetty, 96-2762 (La.App. 1st Cir.4/8/98), 715 So.2d 1; Maddie v. Fidelity Nat. Bank, 93 2308 (La.App. 1st Cir.8/25/94), 641 So.2d 1098; Acosta v. Hepplewhite Home, Inc., 450 So.2d 770 (La.App. 5th Cir.1984); American Eagle, Inc. v. Employers’ Liability Assur. Corp., Ltd., 389 So.2d 1339 (La.App. 1st Cir.1980), writ denied, 396 So.2d 885, writ denied, 396 So.2d 886; Murphy v. Hurdle Planting & Livestock Co., Inc., 364 So.2d 167 (La.App. 1st Cir.1978), writ denied, 366 So.2d 562; Evergreen Plantation, Inc. v. Zunamon, 272 So.2d 414 (La.App. 2nd Cir.1973), writ denied, 274 So.2d 708; DeClouet v. Kansas City Southern Ry. Co., 176 So.2d 471 (La.App. 3rd Cir.), writ refused, 248 La. 383, 178 So.2d 662 (La.1965).” Burkett v. Resolution Trust Corp., 99-1163 (La.App. 5th Cir.2/29/00), 757 So.2d 819, 821.

The Court in Burkett went on to note that “ ‘before the court’ has been held to mean that the step must appear in the court record. Chevron v. Traigle, 436 So.2d 530, 532 (La.1983); Melancon v. Continental Casualty Co., 307 So.2d 308, 312 (La.1975); Hargis v. Jefferson Parish, 99-0971 (La.App. 4th Cir.12/8/99), 748 So.2d 606.” We have also found that ongoing negotiations do not necessarily relieve the negotiating parties of their duty to protect the court record once suit has been filed for purposes of determining whether the action has been abandoned. Lizama v. Williams, 99-1040 (La.App. 5th Cir.3/22/00), 759 So.2d 865.

| fiIn this case, there is no record activity or discovery occurring after September 12, 2000. The Defendant filed a motion to dismiss on the grounds of abandonment on September 22, 2003. While we have no reason to doubt the Plaintiffs’ counsel’s assertions that he attempted to reach defense counsel by telephone and through the mail for several months prior to the September 22, 2003 filing, like the trial court, we do not find that the activity, which was not of record or in the nature of formal discovery was sufficient to prevent the abandonment period from running.

The Plaintiffs argue, with supporting jurisprudence, that La. C.C.P. art. 561 “is not designed to dismiss actions on technicalities but to dismiss those actions which in fact have been abandoned.” Viesel v. Republic Ins. Co., 95-0244 (La.App. 4th Cir.11/30/95), 665 So.2d 1221. They contend that the result here is unjust where the Defendant, as alleged by the Plaintiffs, is allowed to succeed on its motion to dismiss for abandonment when they knew, through the telephone calls and written correspondence that the Plaintiffs had no intent to abandon their case. Moreover, the act of not responding to the Plaintiffs’ entreaties, while waiting for the time to pass to file the abandonment motion, is a violation of the Professionalism Code.

While we are sympathetic to the Plaintiffs’ plight under the facts as alleged in this case, we are constrained to follow the jurisprudence of our circuit as well as that of the Supreme Court requiring court record activity or formal discovery to defeat the abandonment motion. Should the Supreme Court address the matter and resolve it otherwise, finding that dismissal on grounds of abandonment is not warranted under the statute where the defendant has knowledge of the plaintiffs actions that evidence an intent to move forward with the case, we would certainly |7follow that decision. However, it is not our job to create new law, but to follow existing law.

Accordingly, we affirm the trial court decision granting the Defendant’s motion to dismiss the Plaintiffs’ case as abandoned and denying the Plaintiffs’ motion to set aside the dismissal. Costs of appeal are assessed against the Plaintiffs.

AFFIRMED.

      . La. C.C.P. art. 561 was amended by Act No. 545, § 1 of 2003, not relevant to the case before us, deleting the language pertaining to a contradictory hearing and adding subparts (A)(3) and (4). The statute, as quoted above, in effect prior to the amendment and at the time of the dismissal of this case, is applicable.

      . The Plaintiffs also argue that the trial court ruling should be reversed because the trial court failed to first conduct a contradictory hearing. We find no merit in this argument because we have assumed, in considering the argument and ruling against the Plaintiffs, that the Plaintiffs facts were true, negating the need for a hearing. Moreover, the contradictory hearing is discretionary and there is no showing of an abuse of the trial court’s discretion.


source: Caselaw Access Project

author: laCLARENCE E. McMANUS, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Paul RIGGINS.
    No. 04-KA-60.
    Court of Appeal of Louisiana, Fifth Circuit.
    Sept. 28, 2004.
    Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Assistant District Attorney, Gretna, LA, for Plaintiff/Appel-lee.
    Bruce G. Whittaker, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges SOL GOTHARD, SUSAN M. CHEHARDY and CLARENCE E. McMANUS.
   laCLARENCE E. McMANUS, Judge.

The defendant, Paul Riggins, was convicted of possession of cocaine, a violation of LSA-R.S. 40:967(C), and sentenced to three years at hard labor with credit for time served. Defendant’s motion for appeal was granted.

Thereafter, multiple offender proceedings were initiated. After the hearing on the multiple offender bill, the trial court vacated its original sentence and re-sentenced the defendant to three years and six months at hard labor with credit for time served. The sentence was to be served without benefit of probation or suspension of sentence. The defendant’s habitual offender finding and sentence are not before this Court in the present appeal, since they occurred after this appeal was instituted.

The following was presented at trial. Officer Brent Donovan of the Kenner Police Department testified that, on the night of March 4, 1999, he observed the search of a man at Kenner Lockup in Jefferson Parish, whom he later identified in court as the defendant, Paul Riggins. The defendant was being booked on an unrelated charge, and Donovan observed Officer Warlaw perform a detailed inventory search of the defendant’s personal property. The search of the ^defendant’s right side jacket pocket produced a cigarette and an open pack of cigarettes. Two off-white rocklike substances fell from the pack when it was turned over. He identified State’s Exhibit One as the pack of cigarettes with two off-white rocklike substances.

Detective John Louis of the Kenner Police Department testified that he was on call as a narcotics detective on March 4, 1999, when he responded to a call from the Kenner lockup. Upon his arrival, Officer Warlaw gave him a cigarette pack containing two off-white rocklike substances. A field test of the off-white rocklike substance showed positive signs of crack cocaine, which was 99.9 percent accurate. Officer Louis identified State’s Exhibit One as the Kenner Police Department chain of custody sheet and the bag he sealed and dated, containing one pack of cigarettes and two off-white rocklike substances weighing one gram, which were given to him by Officer Warlaw.

The defendant testified that he was in Kenner lockup on the evening of March 4, 1999, but that he was not wearing a jacket, did not have cocaine on his person, and did not remember seeing Officer Donovan. He claimed that he had never possessed or used cocaine, nor been convicted of a drug related offense.

Defendant argues in this appeal that the trial court imposed an excessive sentence. Specifically, the defendant alleges that his sentence of three years at hard labor is excessive for the non-violent crime of possession of cocaine. Further, that the trial court erred in not articulating a reasonable factual basis for his sentence. La.C.Cr.P. art. 894.1.

The record reflects that the defendant was originally sentenced to three years at hard labor with credit for time served under La. R.S. 40:967(C). On April 14, 2004, after the hearing on the multiple offender bill, the trial court vacated its original sentence and re-sentenced the defendant. Thus, the defendant’s argument is moot, because it concerns the defendant’s original sentence that has been | ¿vacated. Furthermore, any claims involving the defendant’s habitual offender sentencing must be addressed in a separate appeal. See, State v. Gilbert, 99-2338 (La.2/4/00), 758 So.2d 779 (per curiam); State v. Parker, 00-1365, pp. 4-5 (La.App. 5 Cir. 1/30/01), 778 So.2d 1167, 1168-69, writ denied, 01-0615 (La.2/22/02), 809 So.2d 981.

Defendant also requests a review of the record for all errors patent. We have reviewed the record for errors patent, according to La.C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir. 1990), and find none which warrant consideration.

Accordingly, defendant’s conviction is affirmed. We do not address defendant’s sentence pursuant to the multiple bill, as that is not before this Court at this time.

AFFIRMED.


author: JjPICKETT, Judge.

text:
    Eula Guidry ARDOIN, et al., v. STINE LUMBER COMPANY, INC., et al.
    No. 2003-1547.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 29, 2004.

      See also 220 F.R.D. 459.
    Jimmy Simien, Eulis Simien, Jr., Mark Wayne Simien, Simien & Simien, Luther F. Cole, Attorney at Law, Baton Rouge, Mark Anthony Delphin, Delphin Law Firm, Lake Charles, Hugh Edward McNeely, Attorney at Law, Baton Rouge, Jack C. Watson, Attorney at Law, Lake Charles, Richard S. Lewis, James J. Pizzi-russo, Washington, DC, James M. Papan-tonio, Mark J. Proctor, Frederick T. Kuyk-endall, III, James M. Messer, Troy A. Rafferty, Attorneys at Law, Pensacola, FL, for Plaintiffs/Appellees Jason M. Broussard, Jason M. Broussard, on behalf of a Putative Nationwide Class and Eula Guidry Ardoin.
    Thomas M. Bergstedt, Bergstedt & Mount, Lake Charles, Scott Edward Delacroix, Jeffrey Edward Richardson, Adams and Reese, New Orleans, Robert L. Shuf-tan, David A. Kanter, Brent R. Austin, Attorneys at Law, Chicago, IL, for Defendants/Appellants Arch Wood Protection, Inc., Osmose, Inc. and Arch Chemicals, Inc.
    John Stanton Bradford, William Boyce Monk, Stoekwell, Sievert, Viccellio, Clements & Shaddock, LLP, Lake Charles, Defendants/Appellants Lowe’s Home Center, Inc. and Home Depot U.S.A., Inc.
    Richard Charles Stanley, Bryan Charles Reuter, Jennifer Thornton, W. Raley Alford, III, Stanley, Flanagan & Reuter, New Orleans, Robb W. Patryk, Nicholas Swerdloff, Renee C. Redman, Hughes Hubbard & Reed, New York, NY, for Defendant/Appellant, Chemical Specialties, Inc.
    John P. MacNaughton, Robert P. Alpert, Atlanta, GA, for Defendant/Appellant Home Depot U.S.A., Inc.
    Raymond A. Haas, Andrew J. Lewis, David W. Longley, Attorneys at Law, Tampa, FL, Defendant/Appellant Lowe’s Home Center, Inc.
    Court composed of JOHN D. SAUNDERS, MICHAEL G. SULLIVAN, and ELIZABETH PICKETT, Judges.
   JjPICKETT, Judge.

FACTS

This matter arises from a Petition for Damages filed by Eula Guidry Ardoin (the plaintiff) on September 25, 2001, in the Fourteenth Judicial District Court. In that Petition, the plaintiff claimed that in order to construct a wooden deck and ramp at her home, she purchased lumber from Stine Lumber Company and Griffith Lumber Company, Inc. The lumber was treated and/or manufactured with chro-mate copper arsenate (CCA) by L.L. Brewton Lumber Company, Inc. with chemicals manufactured or designed by Osmose, Inc. Plaintiff asserted that the defendants delivered non-conforming goods and failed to advise or disclose that the lumber she purchased was treated with CCA. Plaintiff claimed that an unknown quantity of the CCA chemicals leached into the soil of her backyard and formed residue on the surface of the deck and ramp. Plaintiff asserted that the soil was a threat to any person, plants or animals and, thus, the CCA treated wood rendered the products unsuitable for their intended purpose thereby breaching the implied warranty of suitability.

On October 25, 2001, Plaintiffs counsel filed a Motion to Appoint Plaintiffs as Class Representatives and to Appoint Steering Committee and Liaison Counsel. On that same day, the plaintiff filed a First Supplemental and Amending Petition for Damages wherein Jason M. Broussard was added as a plaintiff and the following new defendants: Home Depot U.S.A., Inc. (Home Depot), Lowe’s Home Centers, Inc. (Lowe’s), American Wood Preservers Institute (American Wood), Arch Wood Protection, Inc. (Arch Wood), Arch Chemicals, Inc. (Arch Chemicals), Chemical Specialties, Inc. (Chemical Specialties), Elder Wood Preserving Company (Elder Wood), Louisiana-Pacific Corporation (La Pacific), Universal Forest Products U(Universal), Koppers Industries, Inc. (Koppers), Wal-Mart Stores, Inc. (Wal-Mart) and Defendants XYZ 1-1000.

On November 12, 2001, the plaintiffs filed a Motion for Class Certification seeking to have the matter certified as a class action. On December 6, 2001, the plaintiffs filed a motion to voluntarily dismiss Wal-Mart without prejudice from the proceedings and a Second Supplemental and Amending Petition for Damages. Great Southern Wood Preserving, Inc. (GSWP) was added as a defendant. On December 17, 2001, Universal Forest filed a Notice of Removal asserting that the federal court had jurisdiction over the matter. The matter was removed to federal district court on December 18, 2001. On or about March 6, 2002, the matter was remanded back to the state district court.

Following the remand back to state district court, the parties filed numerous motions including several declinatory, dilatory and peremptory exceptions filed by the defendants in this matter.

On September 20, 2002, the state district court ordered that the matter be governed by Case Management Order Number 1 (CMOl) in order to facilitate the orderly, efficient, and expeditious disposition of the claims and appointed Kenneth Michael Wright as provisional Special Master (SM) to assist the court with matters leading up to the hearing on class certification. The Order listed the duties of the SM as: (1) to assist the court in resolving discovery disputes, (2) assist the court in ensuring compliance with the provisions of this CMOl, (3) reporting to the court on the readiness for the class certification hearing and (4) the SM may perform any special duties that are expressly ordered by the court or by agreement of the parties with the written consent of the parties to the SM being involved in that capacity. The | .-¡Order further stipulated that, after reviewing any matter, the SM would issue a Report and Recommendation and any party objecting to the Report and Recommendation could file a written objection within ten (10) days as provided for by La.R.S. 13:4165. Upon receipt of a written objection, the court would schedule a hearing to review the Report and Recommendation of the SM.

On November 21, 2002, the district court ordered the parties to deposit a total of $88,926.84 into the court’s registry by December 20, 2002, for SM fees; assessing one-half to each party. On November 22, 2002, the district court implemented Case Management Order Number 2 (CM02) which superceded CMOl.

On December 21, 2002, the district court granted the plaintiffs’ Motion to Dismiss Brewton Lumber Co., Inc., Elder Wood Preserving Co., Louisiana-Pacific Corporation, Universal Forest Products, Great Southern Wood Preserving, Inc., Koppers Industries, Inc. and American Wood Preservers Institute as defendants. At this time the class was not certified.

On December 3, 2002, the plaintiffs filed their Fifth Supplemental and Amended Petition for Damages wherein Sheral LaV-ergne was substituted in place of Eula Guidry Ardoin as a class representative.

On December 5, 2002, the remaining defendants filed a Notice of Removal with the United States District Court for the Western District of Louisiana seeking to have the matter removed to federal district court based upon diversity jurisdiction. The SM and the district court received notice of the removal on that same date. The plaintiffs filed a Motion to Remand. The federal district court denied the plaintiffs’ motion and the U.S. Court of Appeal for the Fifth Circuit denied the plaintiffs’ 14request to appeal the denial of their motion to remand. See Ardoin v. Stine Lumber, Co., 02-2502 (W.D.La.).

On April 15, 2003, the SM filed an ex parte motion for the payment of his un-billed and unpaid fees, costs and expenses. On that same date, the district court signed an Order directing the parties to pay those fees, costs and expenses. On May 14, 2003, the defendants filed a Motion and Incorporated Memorandum in Support for Final Accounting and Clarification in response to the Orders issued by the district court on April 15. The motion contends among other things that: (1) the January 8, 2003 disbursement to the SM was incorrect for two reasons; overpayment, and he had already been paid, (2) the March 12, 2003 disbursement was incorrect, (3) the April 14, 2003 invoice of the SM is incorrect because it itemized work performed by the SM after the case was removed to federal court on December 5, and (4) although the district court ordered the parties to deposit $46,828.94 on April 14, only $19,997.21 was needed to satisfy the SM’s invoices. Therefore, the defendants contended that the amounts ordered by the April 15 Orders exceed the amounts charged by the SM. On that same date, the district court granted the defendants Motion to Stay the Orders pending a final accounting and clarification of the fees and costs of the SM.

On May 22, 2003, the SM filed a Motion and Order to Partially Lift Stay. In that motion, the SM requested that the Stay be lifted as to the undisputed portion in the amount of $14,080.16. Pursuant to a stipulation of the parties, on June 6, 2003, the district court granted the SM’s motion as to the undisputed portion, and ordered the defendants to submit a memorandum to the court within seven days of this order listing their objection to the remaining claims of the SM’s fees and expenses.

lfiOn June 13, 2003, the defendants timely filed a Supplemental Memorandum in Support of Motion for a Final Accounting and Clarification and, on July 1, 2003, the defendants submitted a Supplemental Memorandum Regarding the June 23, 2003 Statement of the Special Master. In those memoranda, the defendants’ objected to the SM’s fees because 28 U.S.C. § 1446(d) mandates that a “State court shall proceed no further unless and until the case is remanded.” The defendants argued that the charges of the SM were improper because the case was removed on December 5, 2003, and has not been remanded. On July 15, 2003, the plaintiffs filed a memorandum in support of the SM’s fees. The plaintiffs’ argued that the post-removal activities of the SM were lawful, reasonable and in accordance with the ministerial duties required pursuant to CM02. The plaintiffs’ also asked that the defendants be cast with 100% of the costs incurred from the SM’s time charges.

On October 17, 2003, the district court issued a Per Curiam and Judgment regarding the charges of the SM. In that judgment, the district court ruled that, “a state court retains the power to assess and collect costs after removal, and for such other ministerial tasks which do not go to the merits of a case that has been removed.” The district court further ruled that, pursuant to 28 U.S.C. Section 1450, the SM’s appointment remains in effect since there has been no order in the federal district court terminating his appointment. The district court ordered the parties to pay the disputed funds in the amount of $15,831.64 into the registry of the court, and taxed the sum as costs of the court. The district court assessed the plaintiffs with twenty-five percent and the defendants with seventy-five percent of the total court costs including the costs of the SM.

It is from this judgment that the defendants appeal.

\ ASSIGNMENTS OF ERROR

The defendants set forth the following assignments of errors on appeal:

A. The district court erred by ordering the Special Master to monitor the federal-court proceedings after this case had been removed and by assessing the parties with the costs of those unlawful post-removal activities.
B. The district court’s retroactive reassessment of costs is an absolute nullity.
C. Alternatively, the district court’s retroactive re-assessment of costs was erroneous because no party had filed a motion requesting such relief, the court did not conduct a hearing on the issue, and the court did not give a factual basis for the re-assessment.

DISCUSSION

In their first assignment of error, the appellants argue that the district court erred by ordering the Special Master to monitor the federal court proceedings after this case had been removed and in assessing the parties with the costs of those unlawful post-removal activities. The appellants contend that the federal removal statute, 28 U.S.C. § 1446(d), supports their argument. That statute provides as follows:

Promptly after the filing of such notice of removal of a civil action the defendant or defendants shall give written notice thereof to all adverse parties and shall file a copy of the notice with the clerk of such State court, which shall effect the removal and the State court shall proceed no further unless and until the case is remanded.

In its per curiam, the district court noted:

The United States Sixth Circuit Court of Appeals in Lawrence v. Chancery Court of Tennessee, 188 F.3d 687 (6th Cir.1999) determined that the intention of Congress when it drafted 28 U.S.C. § 1446(d) would paralyze a state court from taking ministerial steps that do not affect the adjudication of the parties’ dispute. The Sixth Circuit concluded that the state court would not be able to recoup pre-removal costs outside of billing a party directly, because the collection of state court costs are outside the federal court’s power. Thus, a state court retains the power to assess and collect costs after removal, and for such 17other ministerial for ministerial (sic) tasks which do not go to the merits of a case that has been removed. The Court finds this case persuasive and applicable herein.
In addition, all orders of the state court remain in full force and effect until dissolved or modified by the Federal District Court. 28 U.S.C. § 1450, third paragraph. Such orders remain binding on the parties. The Special Master’s appointment remains in effect since there has been no order in the Federal District Court terminating his appointment. Thus, State Court has the discretionary authority to award appropriate fees and expenses for ministerial tasks performed for this court.
This court has analyzed and reviewed the briefs of all parties and the post removal billings of the Special Master and finds that the fees charged and expenses and costs incurred were for ministerial duties and finds that this Court has the authority to assess such fees (sic) expenses and changes (sic) as court costs and does so. The post, removal activity was a result of the Court’s request to the Special Master to monitor the proceedings, since this matter had been removed and remanded previously and anticipated return to State Court since the Federal System has seen fir (sic) to sustain the removal....

Upon reviewing the Lawrence case, we find that assessing and collecting court costs does not constitute “proceeding further” under 28 U.S.C. § 1446(d) because that is considered a ministerial act that does not affect the merits of the dispute between the parties. In the instant case, however, the issue is not whether the district court had the authority to assess and collect costs but whether the tasks that the district court ordered the SM to perform on its behalf, after the removal, constitute ministerial acts such that the costs, and expenses assessed were proper.

The defendants argue that the district court’s reading of Lawrence was fundamentally incorrect because Lawrence held only that 28 U.S.C. § 1446(d) does not prohibit a state court from assessing costs that accrued pre-removal The defendants note that none of the costs at issue in the Lawrence case were incurred after the state court had been divested of subject matter jurisdiction. In contrast, in the instant .case, the district court authorized the SM to monitor the federal | ^proceedings and then assessed costs for the SM’s post-removal activities. Defendants argue that such activities are certainly not the type of “ministerial steps” that the Lawrence court had in mind. We agree.

The intent of 28 U.S.C.A. § 1446 is to prevent state and federal courts from sharing jurisdiction over a case and thus avoid jurisdictional conflicts. Therefore, Louisiana courts are divested of jurisdiction once the requirements of the federal removal statute have been met. Kaplan v. Missouri Pacific Railroad Company, 447 So.2d 489 (La.App. 3 Cir.), writ, denied, 449 So.2d 1345 (La.1984). As a general rule, any action taken by a court without proper subject-matter jurisdiction is an absolute nullity.. Bryant v. Pierson, 583 So.2d 97 (La.App. 3 Cir.1991); La.Code Civ.P. art. 2002.

We agree that the SM’s appointment was still in effect because the federal district court had not terminated his appointment. The facts in thé record, however, clearly show that the SM duties, pursuant to CMOl and CM02, were limited to assisting the district court with matters leading up to the hearing on class certification. This specifically entailed assisting the district court in resolving discovery disputes, ensuring that the parties complied with CMOl, and reporting to the district court on the readiness for the class certification hearing. In addition, CMOl provided that the SM could perform any special duties that were expressly ordered by the court or by agreement of the parties with the written consent of the parties to the SM being involved in that capacity.

The monitoring of federal proceedings is not a duty provided for in CMOl and, although the district court expressly ordered the SM to perform this task, the record |9does not reflect that the parties gave written consent to the SM being involved in that capacity.

We will, discuss the defendants’ second and third assignments of error together, as. they are interrelated. The defendants argue that the district court’s retroactive re-assessment of costs is an absolute.nullity. Alternatively, the defendants assert that the district court’s retroactive re-assessment of costs was erroneous because no party had filed a motion requesting such relief, the court did not conduct a hearing on the issue, and the court did not give a factual basis for the re-assessment.

Over the course of, and in connection with the pre-certification, the district court ordered the parties to deposit $143,345.84 into the court’s registry, of which, $138,233.93 was distributed to the SM. Each time the district court disbursed monies to the SM it taxed the matter as costs of the court and assessed one-half to the plaintiffs and one-half to the defendants. The district court reserved the right to revise future assessments.

Defendants contend that no party filed a motion requesting reassessment of costs in this matter. We note, however, that the defendants requested a final reconciliation of the amounts contributed by each to the SM’s costs in their Motion for Final Accounting and Clarification. In response, the plaintiffs, in their memorandum filed on July 15, 2003, asked that the defendants be cast with 100% of costs incurred from the SM’s time charges. The matter was submitted on briefs by agreement of the SM and the defendants.

In its per curiam, the district court stated that:

Its Case Management Order established an initial allocation of 50% to the Defendants subject to review of the court at a later date for reallocation if the facts warranted.
Jb- • • •
In its previous orders the allocating costs of one-half to plaintiffs and one-half to defendants this Court reserved the right to revise the allocations. This Court has analyzed the cooperation of both the defendants and the plaintiffs, the discovery facilitation by the parties and other factors and has determined that the previous assessment of court costs should be revised to reflect more reasonable and accurate assessment of each parties responsibility for court costs. After carefully evaluating the amount of time and effort that was required by the Court on behalf of the plaintiffs and the defendants this court finds that the Special Master costs assessed as court costs and all other Court costs should be reassessed. (This assessment was reserved by the Court as per transcripts of numerous hearings in preparation of the ultimate certification determination.)

The district court then went on to order the parties to pay into the registry of the court the disputed funds, assessing each party a one-half share. In its judgment, the district court assessed the plaintiffs with 25% and the defendants with 75% of the total court costs including the costs of the SM.

We find no error in the reassessment of the costs by the trial court. The assessment of costs was subject to review by the court, and although there was no formal hearing, the matter was submitted on briefs by agreement of the parties. The court did recite its considerations in assessing the costs and we find no error in its reasoning. This assignment of error is without merit.

DECREE

The judgment of the trial court assessing the parties with costs in the amount of $15,831.64 for activities performed by the SM subsequent to the filing of the Notice of Removal is reversed. The judgment of the trial court is affirmed in all other respects. Costs of this appeal are to be divided equally between the parties.

REVERSED IN PART; AFFIRMED IN PART.


author: PICKETT, Judge.

text:
    Eula Guidry ARDOIN, et al. v. STINE LUMBER COMPANY, INC., et al.
    No. 04-165.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 29, 2004.
    Jimmy Simien, Eulis Simien, Jr., Mark Wayne Simien, Simien & Simien, Luther F. Cole, Attorney at Law, Baton Rouge, Mark Anthony Delphin, Delphin Law Firm, Lake Charles, Hugh Edward McNeely, Attorney at Law, Baton Rouge, Jack C. Watson, Attorney at Law, Lake Charles, Richard S. Lewis, James J. Pizzi-russo, Washington, DC, James M. Papan-tonio, Mark J. Proctor, Frederick T. Kuyk-endall, III, James M. Messer, Troy A. Rafferty, Attorneys at Law, Pensacola, FL, for Plaintiffs/Appellees Jason M. Broussard, Jason M. Broussard, on behalf of a Putative Nationwide Class and Eula Guidry Ardoin.
    Thomas M. Bergstedt, Bergstedt & Mount, Lake Charles, Scott Edward Delacroix, Jeffrey Edward Richardson, Adams and Reese, New Orleans, Robert L. Shuf-tan, David A. Kanter, Brent R. Austin, Attorneys at Law, Chicago, IL, for Defendants/Appellants Arch Wood Protection, Inc., Osmose, Inc. and Arch Chemicals, Inc.
    John Stanton Bradford, William Boyce Monk, Stockwell, Sievert, Viccellio, Clements & Shaddock, LLP, Lake Charles, Defendants/Appellants Lowe’s Home Center, Inc. and Home Depot U.S.A., Inc.
    Richard Charles Stanley, Bryan Charles Reuter, Jennifer Thornton, W. Raley Alford, III, Stanley, Flanagan & Reuter, New Orleans, Robb W. Patryk, Nicholas Swerdloff, Renee C. Redman, Hughes Hubbard & Reed, New York, NY, for Defendant/Appellant, Chemical Specialties, Inc.
    John P. MacNaughton, Robert P. Alpert, Atlanta, GA, for Defendant/Appellant Home Depot U.S.A., Inc.
    Raymond A. Haas, Andrew J. Lewis, David W. Longley, Attorneys at Law, Tampa, FL, Defendant/Appellant Lowe’s Home Center, Inc.
    Court composed of JOHN D. SAUNDERS, MICHAEL G. SULLIVAN, and ELIZABETH A. PICKETT, Judges.
   PICKETT, Judge.

For the reason assigned by this court in Eula Guidry Ardoin, et al. v. Stine Lumber Company, Inc., et al., a published opinion bearing docket number 03-1547, 885 So.2d 43, the judgment of the trial court is reversed in part and affirmed in part.

REVERSED IN PART; AFFIRMED IN PART.


author: EASLEY, Justice,

text:
    Gloria MERCER v. PROGRESSIVE GULF INSURANCE COMPANY.
    No. 2003-CA-01796-SCT.
    Supreme Court of Mississippi.
    July 29, 2004.
    Rehearing Denied Nov. 10, 2004.

      B. Sean Akins, Ripley, Bart Adams, attorneys for appellant.
    Martha Bost Stegall, Tupelo, attorney for appellee.
    Before SMITH, C.J., EASLEY and RANDOLPH, JJ.
   EASLEY, Justice,

for the Court.

STATEMENT OF THE CASE

¶ 1. In this insurance coverage dispute this Court is requested to determine if a trial court correctly granted a summary judgment for an insurer on the issue of whether Gloria Mercer (Mercer) was a member of her father’s household for uninsured motorist insurance purposes. On November 14, 2001, Mercer was injured in an automobile accident. At the time of the accident, Mercer was driving her 1992 Oldsmobile, not insured by her father’s policy, and was hit by an uninsured motorist. Mercer’s father, John Paul Jones (Jones), had an automobile insurance policy with Progressive Gulf Insurance Company (Progressive). Following her accident, Mercer made a claim under her father’s policy claiming that she was a resident of her father’s household and thus an insured pursuant to the policy. Progressive denied the claim and sued Mercer in the Circuit Court of Tip-pah County seeking a declaratory judgment of no coverage.

¶ 2. Following a hearing the circuit court granted summary judgment for Progressive stating:

THIS CAUSE came before this Court on Petitioner Progressive Gulf Insurance Company’s Motion for Summary Judgment and the Court, viewing the facts in a light most favorable to the non-moving party, and considering all arguments of counsel, both in the briefs and in oral argument for Summary Judgment, finds that said motion is well taken, as no genuine issue of material facts exists.
Gloria Mercer is not entitled to any benefits under the subject policy for any injuries and damages she may have suffered in a motor vehicle accident that occurred on November 14, 2001, and there is not a sufficient nexus between her residence and her father’s residence as to treat them as parts of a common household.

Following this ruling, Mercer appealed to this Court.

STATEMENT OF THE FACTS

¶ 3. Mercer admitted all the allegations set forth in Progressive’s complaint for declaratory judgment with the one exception of Paragraph 8 which alleged that she was “not entitled to recover any benefits under the subject policy because she was not a resident of the household of Jones, the named insured, and did not otherwise meet any definition of an insured under the policy.” Mercer similarly admitted the allegations in Progressive’s motion for summary judgment again with the exception that she denied that she was not entitled to recover benefits because she was not a resident of the household of the insured (her father) at the time of the accident.

¶ 4. On the date of the accident, November 14, 2001, Mercer, age 28, was living at 360 County Road 203 with her two children. Since the accident, Mercer moved to a different house less than a mile away from her parents. Mercer’s father owned the house where she and the children lived on November 14, 2001. John Paul Jones is Mercer’s father, and he lives at 330A County Road 203. The house that Mercer lived in on the date of the accident had previously been occupied by her grandmother. Mercer stated in her deposition, response to complaint for declaratory-judgment and response to Progressive’s motion for summary judgment that the house that she lived in on the date of the accident and her father’s home had separate mailboxes. Both houses were served by separate utility meters. In her two responses, Mercer admitted that there was a distance of over 100 yards between her residence and her father’s residence. While Mercer could not recall exactly, she believed that the electricity bill for her house was in her father’s name, the water bill was in either her name or her father’s name, and the cable bill was in her name. Both Mercer and her father paid the bills. The cable services were separate for each house. The home insurance was in Jones’s name, and he paid the insurance bill for the house. Mercer did not pay her father any rent while she lived in the house. The two houses have separate driveways. In addition, Mercer and her children kept clothing, personal items and toys at the 360 County Road 208 house. In this house were a stove and microwave, refrigerator, freezer and food. Mercer cooked meals at this house approximately 3-4 times a week. Mercer and the children went to her father’s home everyday to visit, eat and sometimes they stayed the night at his house. They would walk or drive to her father’s house. Mercer used the 360 County Road address to fill out information sheets for her children for school. She also received mail at a separate mail box. After the accident Mercer moved back to her parents’ home until about February, 2002.

¶ 5. On the date of the accident, Mercer owned her own vehicle which was insured in her name by Farm Bureau. Mercer had settled her claim with Farm Bureau by the date of the deposition.

¶ 6. Jones’s automobile insurance policy with Progressive stated in part:

INSURING AGREEMENT — UNINSURED MOTORIST BODILY INJURY COVERAGE
Subject to the Limits of Liability, if you pay a premium for Uninsured/Un-derinsured Motorist Coverage, we will pay for damages, other that punitive ore exemplary damages, which an insured person is entitled to recover from the owner or operator of an uninsured motor vehicle because of bodily injury:
1. sustained by and insured person;
2. caused by accident; and
3. arising out of the ownership, maintenance, or use of an uninsured motor vehicle.
% *
ADDITIONAL DEFINITIONS
When used in this Part III:
1. “Insured person” and “insured persons” mean:
a. you or a relative;
b. any person occupying a covered vehicle; and
c. any person who is entitled to recover damages covered by this Part III because of bodily injury sustained by a person described in a or b above.
GENERAL DEFINITIONS
12. “Relative” means a person residing in the same household as you, and related to you by blood, marriage, or adoption, including a ward, stepchild, or foster child. Unmarried dependant children temporarily away from home will be considered residents if:
a. they are under the age of twenty-five (25) years; and
b. they intend to continue to reside in your household.
ifc :Jt
16. “You” and ‘Your” mean the persons shown as the named insured on the Declarations Page, and that person’s spouse if residing in the same household.

The policy listed Jones as the insured and he and his wife Ruby were the listed drivers of their two vehicles. Mercer’s 1992 Oldsmobile was not a listed vehicle on her father’s automobile insurance policy.

¶ 7. This Court finds that the trial court did not err by granting summary judgment in favor of Progressive finding that Mercer was not a member of her father’s household. The trial court was correct in finding that there was no genuine issue as to any material fact and that Progressive, therefore, was entitled to a judgment as a matter of law.

DISCUSSION

Whether the trial court erred in granting a summary judgment to an uninsured motorist insurance carrier.

¶ 8. Mercer argues that the trial court erred in granting summary judgment because there is a question of material fact to be determined by the jury, that being whether she was a member of her father’s household at the time of her accident.

¶ 9. This Court applies a de novo standard of review on appeal from a grant of summary judgment by the trial court. Russell v. Orr, 700 So.2d 619, 622 (Miss.1997); Richmond v. Benchmark Constr. Corp., 692 So.2d 60, 61 (Miss.1997); Merrimack Mut. Fire Ins. Co. v. McDill, 674 So.2d 4, 7 (Miss.1996); Northern Elec. Co. v. Phillips, 660 So.2d 1278, 1281 (Miss.1995). Rule 56(c) of the Mississippi Rules of Civil Procedure provides that summary judgment shall be granted by a court 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 any material fact and that the moving party is entitled to a judgment as a matter of law.” M.R.C.P. 56(c) (emphasis added). The moving party has the burden of demonstrating that there is no genuine issue of material fact in existence, while the non-moving party should be given the benefit of every reasonable doubt. Tucker v. Hinds County, 558 So.2d 869, 872 (Miss.1990). “Issues of fact sufficient to require denial of a motion for summary judgment obviously are present where one party swears to one version of the matter in issue and another says the opposite.” Id.

¶ 10. Of importance here is the language of the rule authorizing summary judgment “where there is no genuine issue of material fact.”

The presence of fact issues in the record does not per se entitle a party to avoid summary judgment. The court must be convinced that the factual issue is a material one, one that matters in an outcome determinative sense ... the existence of a hundred contested issues of fact will not thwart summary judgment where there is no genuine dispute regarding the material issues of fact.

Simmons v. Thompson Mach. of Miss., Inc., 631 So.2d 798, 801 (Miss.1994) (citing Shaw v. Burchfield, 481 So.2d 247, 252 (Miss.1985)). The evidence must be viewed in the light most favorable to the non-moving party. See Russell, 700 So.2d at 622; Richmond, 692 So.2d at 61; Merrimack Mut. Fire Ins. Co., 674 So.2d at 7; Northern Electric Co., 660 So.2d at 1281; Simmons, 631 So.2d at 802; Tucker, 558 So.2d at 872.

¶ 11. To avoid summary judgment, the non-moving party must establish a genuine issue of material fact within the means allowable under the Rule. Rich mond, 692 So.2d at 61 (citing Lyle v. Mladinich, 584 So.2d 397, 398 (Miss.1991)). “If any triable issues of fact exist, the lower court’s decision to grant summary judgment will be reversed. Otherwise the decision is affirmed.” Richmond, 692 So.2d at 61.

¶ 12. In Merrimack Mut. Fire Ins. v. McDill, 674 So.2d 4 (Miss.1996), this Court determined whether Brown, a 28-year-old adult, was a member of a household for homeowner insurance purposes. Brown shot and wounded McDill, his former girlfriend, and shot and killed her fiancé. Id. at 6. Thereafter, McDill filed suit against Brown. Id. At the time of the shootings, Brown was living in a garage apartment located in a separate building on his parents’ property. Id. at 8. The parents had a homeowners insurance policy with Merrimack. Id. at 6. Brown’s parents notified Merrimack of the suit but Merrimack claimed that it had no obligation to defend Brown because he was not an insured under the policy. Id.

¶ 13. Prior to litigation, Brown and McDill entered into an agreed judgment in the amount of $100,000. Merrimack, 674 So.2d at 6. Thereafter, McDill obtained a writ of garnishment against Merrimack. Id. Merrimack claimed that Brown was not insured under the policy. Id. The trial court initially granted partial summary judgment determining that Brown was insured under the policy. Id. at 7.

¶ 14. This Court in Merrimack held that “[t]he key in determining the intent of the parties is whether they created and maintained a household, and not the existence of a contiguous roof.” Id. at 8. Merrimack is distinguishable because Brown received his mail at his parents’ address, ate numerous meals in his parents’ home, and his parents imposed specific guidelines to living in the apartment. Id. at 8.

¶ 15. This Court ultimately reversed and remanded for a jury trial on the issue of Brown’s “household resident” status. Id. at 10. In reaching this decision, this Court determined that there were material facts in dispute and, therefore, the lower court erred in granting summary judgment. Id.

¶ 16. In Wright v. Allstate Indem. Co., 618 So.2d 1296, 1300 (Miss.1993), this Court reversed a grant of summary judgment in favor of the insurer, Allstate. James Wright and his wife bought a home insurance policy for a house that was occupied by their son. Id. at 1297. The son alleged that occupants of a passing car shot at him, but when he returned fire the bullet killed a sleeping neighbor. Id. at 1297. The wrongful death beneficiaries filed suit against the son and Allstate filed a complaint for declaratory judgment claiming that the son was not a member of the household. Id. This Court held that a question of material fact existed in regard to the insurance coverage. Id. at 1300. The fact at issue was whether James Wright told the insurance agent who would actually live in the house that was covered in the homeowner’s insurance policy. Id.

¶ 17. In Johnson v. Preferred Risk Auto. Ins. Co., 659 So.2d 866, 867 (Miss.1995), a couple left their home in Tennessee and temporarily moved in with their respective parents until such time as they could move to Arkansas to begin a new job. The married couple were in an automobile accident, and both sets of parents had automobile insurance policies with Preferred Risk. Id. This Court determined that the married couple, injured in the automobile accident, were considered “residents” under the uninsured motorists insurance policies. Id. at 875. This Court determined that the sole question was whether the couple were defined as “residents” within the meaning of the insureds’ policies. Id. at 870. This Court found that this issue was a question of law because there were no undisputed facts and no question of fact such as how long the couple stayed at their parents’ homes or if they planned to stay at the homes indefinitely. Id.

¶ 18. Mercer argues that her case is similar to Merrimack. She argues that the son in Merrimack lived in a garage apartment, a separate structure on the parents property and not under a contiguous roofline, was employed and self supporting, whereas Mercer also lives in a separate structure on her father’s property and she is dependant on her father for support. In addition, Mercer argues that the intent of the parties and not the physical location of an individual determines who is considered a member of a household. Merrimack, 674 So.2d at 8. Further, Mercer claims that the term “household” is not defined in the policy of the uninsured motorist statute and that insurance policies are to be construed against the insurer and in favor of a policyholder. Mut. Ben. Health & Acc. Ass’n v. Blaylock, 163 Miss. 567, 573, 143 So. 406 (1932). See also J & W Foods Corp. v. State Farm Mut. Auto. Ins. Co., 723 So.2d 550, 552 (Miss.1998).

¶ 19. Progressive argues that Mercer never contended that she intended to live with her father. In addition, Progressive contends that Merrimack does not support Mercer’s position. Progressive claims that the circumstances in Mercer’s case were more tenuous than those in Merrimack. We agree.

¶ 20. Progressive also cites to a Florida case which, while not controlling on this Court, is nevertheless instructive. In American Sec. Ins. Co. v. Van Hoose, 416 So.2d 1273 (Fla.Dist.Ct.App.1982), a Florida court appellate reversed and remanded a lower court ruling. The court held that a mother and her daughters were not “residents of household” because there was no intent that the father and the daughter and granddaughters intended to live together. Id. at 1275. The daughter and her children lived in a house across the street from the father; received support from the father such as rent, utilities and food; on occasion they all ate and slept at the father’s home; the father frequently drove the daughter to work; and the daughter used her home address for job applications and tax purposes. Id. at 1274.

¶ 21. We find that the trial court correctly granted the summary judgment motion in favor of Progressive. Mercer does not dispute that she and her children lived in a house that was approximately 100 yards from her father’s residence. In addition, each house had a separate address, mailbox, driveway, utility meters and cable services. Mercer and her children kept clothing, personal items and toys at the 360 County Road 203 residence. This residence also had its own stove, microwave, refrigerator, freezer and food. Mercer cooked a number of meals at this home each week. Further, Mercer used the 360 County Road 203 residence to fill out information sheets for her children’s school. Mercer also received mail in her separate mailbox. On the other hand, Mercer’s father assisted in paying some bills for her, and it is unclear as to which bills, but it appears that both Mercer and her father had different bills in each of their names. None of this information is in dispute.

¶ 22. As this Court in Merrimack held “[t]he key in determining the intent of the parties is whether they created and maintained a household, and not the existence of a contiguous roof.” Merrimack, 674 So.2d at 8. We find that Mercer did not intend to live with her father, instead all the facts, which are not in dispute, demonstrate that Mercer maintained a separate household. Mercer lived in a separate structure, approximately 100 yards away from her father, .with a separate address, mailbox, utilities and cable. The house had all the necessities such as a stove, refrigerator, microwave, food, clothing and toys. While Mercer went to her father’s home daily and ate some meals and occasionally slept at his house, she nevertheless cooked meals in her house 3-4 days a week.

¶ 23. Mercer’s case is distinguishable from Merrimack. In Merrimack, the son lived in a garage apartment, ate many of his meals at his parents house, received his mail at his parents house, had specific guidelines to follow while living in the garage and the father wanted to move his office from the garage to the house to alleviate stress on his back. Here, Mercer lived in a house that in the very least had a separate address, mailbox, utility meters and cable service. She either drove or walked over 100 yards to her father’s home, but she had lived in this structure for approximately two months prior to her accident. Indeed, this Court finds that the facts in Mercer’s case are more similar to the facts in Van Hoose, 416 So.2d 1273. Further, this Court in Merrimack reversed and remanded for a jury trial on this issue of Brown’s household resident status. Despite the ruling in Merrimack, this Court also held in Johnson that where there exists no genuine issues of material fact as to whether a person is considered a “resident” pursuant to an insurance policy, summary judgment is proper. Johnson, 659 So.2d at 870.

¶ 24. This Court finds that there were no material facts in dispute; therefore the trial court did not err in granting the motion for summary judgment in favor of Progressive.

CONCLUSION

¶ 25. There were no issues of material fact in dispute. The trial court did not err by granting the motion for summary judgment in favor of Progressive. Accordingly, the judgment of the Circuit Court of Tippah County is affirmed.

¶ 26. AFFIRMED.

SMITH, C.J., WALLER AND COBB, P.JJ., CARLSON, GRAVES, DICKINSON AND RANDOLPH, JJ., CONCUR. DIAZ, J., NOT PARTICIPATING.


author: SMITH, Chief Justice,

text:
    William J. HEROMAN, Janet L. Heroman, Eric Lynch, Nicholas Augustus, IV, Timothy Koerner, Ann Koerner, Hilda Williams and Barbara Scott v. Mayor Billy McDONALD and Board of Aldermen of The City of Pass Christian, Mississippi, and Phyllis Hughes and Randy Tuggle, Intervenors.
    No. 2003-CC-01466-SCT.
    Supreme Court of Mississippi.
    Aug. 19, 2004.
    Rehearing Denied Oct. 28, 2004.

      Floyd J. Logan, Gulfport, attorney for appellants.
    Pro Se & Frank R. McCreary, III, attorneys for appellees.
    Before SMITH, C.J., CARLSON and GRAVES, JJ.
   SMITH, Chief Justice,

for the Court.

¶ 1. This zoning case is before the Court on appeal by bill of exceptions from the judgment of the Circuit Court of Harrison County, Mississippi, affirming the decision of the City of Pass Christian Mayor and Board of Aldermen (collectively “City Board”). The circuit court held that the property located at 401 East Scenic Drive, Pass Christian, Mississippi, and the building situated thereon, commonly known as the “Palace in the Pass”, “is a lawful continuation of nonconforming use.” Finding no reversible error, we affirm.

FACTS

¶ 2. Randy Tuggle and Phyllis Hughes are the owners of the property at 401 East Scenic Drive, Pass Christian, Mississippi, commonly known as the “Palace in the Pass.” On May 1, 2000, the owners purchased the property from the Cecil R. Ruddock Post 5931, Veterans of the Foreign Wars of the United States (hereinafter “V.F.W.”). Objectors, William J. Heroman, et al, are the owners of real property situated, adjoining, and/or surrounding the Pass property. The property is located within an area zoned as a residential R-0 (Historic District) by the Zoning Ordinance of the City of Pass Christian. Over the past one hundred years, the building located at 401 East Scenic has been used for various purposes, including a general store, hardware store, and a V.F.W. post. The V.F.W. bought the building in 1958 in order to conduct its meetings and operate a venue which would enable it to raise funds for various charitable causes. The events held on the premises during the V.F.W.’s ownership included wedding receptions, dances, bingo nights, steak dinner nights, and other community activities. The V.F.W. post also included a lounge which served beer and was open to the citizens of Pass Christian. Additionally, the V.F.W. rented the space on the second floor of the building as a residence. The V.F.W. used the building in substantially the same manner from 1958 to 2000. The former post commander testified that, although the frequency of events tended to be more densely concentrated around the holidays and during June for weddings, the V.F.W. rented the building ten to twelve times per year on average.

¶ 8. The City of Pass Christian passed its zoning ordinances in 1972. At the time the ordinances were enacted, a list of nonconforming uses was compiled, including the V.F.W. post. In 1997, the nonconforming use status was confirmed by the zoning board in its minutes. On July 10, 2000, Tuggle and Hughes applied to the Pass Christian Code Office for a building permit. The permit application was for structural repair to the building. When Hughes went to the Code Office to apply for the permit, the regular code officer was out sick. As a result of the regular code officer’s absence, the newly hired assistant officer aided Hughes in the completion of all necessary forms. At that time, Hughes informed the assistant officer that the upstairs of the subject property would be used for residential purposes and the downstairs would be used as a reception hall. The permit application was completed on July 10, 2000, with the assistant code officer filling in the occupancy as “Single-Family Dwelling.” In early September, the City Attorney sent an opinion letter to the Board and code enforcement officer advising that the owners had a right to continue the nonconforming uses as a distinct property right citing positive case law from this Court and Section 402(G) of the Zoning Ordinance No. 351 which governs the loss of non-conforming status. In late October 2000, the City Clerk issued a business privilege license to the owners for the nonconforming use of holding “receptions/parties.”

¶ 4. Heroman and other adjoining or surrounding property owners near the 401 East Scenic property applied to the zoning board for administrative review and interpretation of the zoning ordinance or map of the city concerning the owners use of the property. After conducting a public hearing on the issue, the zoning board held that the Palace in the Pass was not a continuation of a legal nonconforming use and was therefore in violation of the zoning ordinance. An appeal was filed with the Mayor and Board requesting relief from the decision of the zoning board. After some procedural wrangling in the Circuit Court of Harrison County over whether the city board lacked jurisdiction, the appeal was sent back to the Mayor and Board for consideration. A public hearing was held where many lifelong residents in this close-knit community testified as to the events and activities put on by the V.F.W. over its 42 years of occupancy and ownership of the property. Parties in opposition to and in support of the operation of the Palace in the Pass were given the opportunity to voice their concerns during the meeting. The Board of Aldermen and mayor subsequently reversed the decision of the zoning board and held that the Palace in the Pass was a legal continuation of a nonconforming use. Heroman and other objectors then appealed to the circuit court which affirmed.

ANALYSIS

¶ 5. The classification of property for zoning purposes is a legislative matter rather than a judicial matter. Faircloth v. Lyles, 592 So.2d 941, 943 (Miss.1991); W.L. Holcomb, Inc. v. City of Clarksdale, 217 Miss. 892, 900, 65 So.2d 281, 283 (1953). Zoning decisions rendered by a government carry a presumption of validity, casting the burden of proof upon the individual or other entity asserting invalidity. Faircloth, 592 So.2d at 943; Ridgewood Land Co. v. Moore, 222 So.2d 378, 379 (Miss.1969). In examining a zoning order issued by a city council, the circuit court sits as an appellate court with a restricted scope of judicial review. Red Roof Inns, Inc. v. City of Ridgeland, 797 So.2d 898, 899 (Miss.2001); Ridgewood Land Co., 222 So.2d at 379. This Court has long held that the standard of review in zoning cases is whether the action of the board or commission was arbitrary or capricious or whether it was supported by substantial evidence. Perez v. Garden Isle Cmty. Ass’n, 882 So.2d 217, 216 (¶ 6) (Miss.2003); In re Carpenter, 699 So.2d 928, 932 (Miss.1997); Broadacres, Inc. v. City of Hattiesburg, 489 So.2d 501, 503 (Miss.1986). The Court further holds that the circuit court acts as an appellate court in reviewing zoning cases and not as the trier of fact. Perez, 882 So.2d at 219 (¶ 6); Bd. of Aldermen v. Conerly, 509 So.2d 877, 885 (Miss.1987). In fact, neither the circuit court nor the Supreme Court has the power to tamper with municipal zoning unless the zoning decision is shown to be arbitrary, capricious, discriminatory, illegal, or without substantial evidentiary basis. In re Carpenter, 699 So.2d at 932; City of Jackson v. Aldridge, 487 So.2d 1345, 1347 (Miss.1986). More plainly stated, the order of municipal governing body may not be set aside if its validity is fairly debatable. Perez, 882 So.2d at 219 (¶ 6); Saunders v. City of Jackson, 511 So.2d 902, 906 (Miss.1987).

¶ 6. The considerable decision-making power attributable to municipal authorities in zoning matters is not unfettered. In balancing the respective rights and duties of property owners, zoning boards, and community intervenors in continuation of nonconforming use disputes, the Court must be reminded that the right to continue a nonconforming use is not a personal right but one that runs with the land. Faircloth, 592 So.2d at 945. It follows, as night follows day, that this right may not be terminated or destroyed by change of ownership of property alone. Id.; Barrett v. Hinds County, 545 So.2d 734, 737 (Miss.1989). See also, Kenneth H. Young, Anderson’s, American Law of Zoning, § 6.40 at 610 (4th ed.1996).

¶ 7. The objectors first argue insufficient notice, asserting the Board should have followed Section 1005.2 of the city zoning ordinances which requires notice to be mailed not less than fifteen (15) prior to hearing, to the owner(s) of all properties within a radius of three-hundred (300) feet of the external boundaries of the property described in the application for special exception. On the other hand, Miss.Code Ann. § 17-1-17 (Rev.2003), requires only that notice of changes or amendments be given within fifteen (15) days via publication in an official paper or a paper of general circulation. This issue was specifically addressed by the Mayor and Board. Counsel for the objectors argued that additional property owners who could have been affected by the hearing may not have received notice or even knowledge of the proceedings by publication. The objectors’ argument that the notice provisions of Section 1005.2 of the city zoning ordinances should apply is without merit. This section only applies where the action taken by the zoning board concerns a special exception permit. Continuation of a nonconforming use is a right that is one of the many rights guaranteed to property owners in Mississippi by the common law. It flows with the land and does not require application for special exception unless the nonconforming was lost pursuant to Section 402(G) which would then require the owners to obtain a special exception if they wished to continue in their commercial endeavor. The zoning board and the city board decided the issue of whether there was a legal continuing nonconforming use, not whether a special exception should be granted. These issues are distinct, unrelated to one another, and the objectors’ argument is fatally flawed on this point.

¶ 8. The objectors further argue that the owners lost or abandoned the benefits of their nonconforming use status by obtaining a certificate of occupancy of the building as a single-family dwelling. Section 402(G). of the Zoning Ordinances No. 351 governs the loss of nonconforming status and provides forfeiture of nonconforming status under the following circumstances: . (1) land legally joined under common ownership with adjoining land so that the entirety is conforming; (2) use of land ceases for any reason for a period of one year; (3) structure is made to conform; (4) use of a structure discontinued or abandoned for twelve consecutive months; and/or the (5) the nonconforming use is changed to a conforming use no matter how short the period of time. This argument also fails because testimony from the permanent zoning officer, Owner P.J. Hughes, and former V.F.W. Post Master Scarborough showed that • not only that there had been a mistake by an inexperienced assistant code officer, but that the use of the second floor as a rental property for residence had been part of or included in the nonconforming use of the property along with the weddings, receptions, parties, and other activities held on the first floor. It was established that, there had been a change in the business conducted from nonprofit under V.F.W. ownership to commercial under Hughes’s and Tuggle’s ownership. However, additional testimony from an adjoining property owner supporting the operation of the Palace, aldermen, and a local judge showed .that the new owners of the Palace in the Pass hosted events for charity and community groups free of charge on a regular basis. Ample substantial evidence supported the Board’s decision that overall character and nature of the activities taking place at the Palace remained unchanged with new ownership such that the owners had a legal continuing nonconforming use of the property. Unfortunately, this testimony diverges slightly from the correctly framed issue of whether the nonconforming use was lost under Section 402(G). The question is not whether the business is nonprofit or commercial. The question is whether the owners lost their right to continue the nonconforming use under prongs four or five of the aforementioned section. The objectors do not argue discontinuation or abandonment for more than one year. They argue only that the commercial nature of the Palace in the Pass under the new ownership fatally changes the nonconforming use into a conforming use. Although this is a novel and intelligent argument, it is not supported by the governing zoning regulations which specifically provide for circumstances whereby nonconforming status is lost.

CONCLUSION

¶ 9. In its Findings of Fact and Conclusions of Law the Board noted the similarities in the Palace’s current activities or uses with the activities or use employed by the V.F.W. Additionally, it noted that fees were always an integral part of the V.F.W.’s operation of the property. The Board did' find that the Palace had lost its right to continue the operation of a bar on the premises, as the V.F.W. had operated and opened to the citizens of Pass Christian, due to its failure to continue the nonconforming use. The Board further stated that the certificate of occupancy as a single-family dwelling was obtained for the purposes of a building permit for construction work to be done on the second floor residence which was not expanded but merely renovated. The Board concluded that no unlawful expansion or enlargement of the nonconforming use occurred rendering it forfeited. The Board’s decision and the circuit court’s decision to uphold the Board were supported by substantial evidence, and neither decision was arbitrary, capricious, confiscatory, illegal, or discriminatory. Thus, we affirm the judgment of the Circuit Court of Harrison County upholding the decision of the May- or and Board of Aldermen of the City of Pass Christian.

¶10. AFFIRMED.

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