author: J^PETTIGREW, J. hDOWNING, J.,

text:
    EAGLE PACIFIC INSURANCE COMPANY, a Washington Corporation v. PRODUCTION SYSTEMS, INC., William Kelley and Pamela M. Kelley.
    No. 2003 CA 0457.
    Court of Appeal of Louisiana, First Circuit.
    July 14, 2004.

      John M. Jefcoat, Lafayette, for Plaintiff/Appellant Eagle Pacific Insurance Co.
    Jason Lyons, Houma, for Defendants/Appellees Production Systems, Inc., Buzzy P, Inc., Kelley Consulting, Inc., William Kelley, and Pamela M. Kelley.
    Eddie Pullaro, Houma, for Defendant/Appellee Production Systems, Inc.
    Before: FITZSIMMONS, PETTIGREW, DOWNING, McDONALD, and McClendon, jj.
   J^PETTIGREW, J.

Eagle Pacific Insurance Company (Eagle) appeals a judgment whereby the trial court held a liquidated subsidiary corporation liable for unpaid insurance premiums but failed to cast the corporate liquidator or the shareholders of its liquidated parent corporation in judgment for the debt. Based on the unique facts and circumstances herein, and finding no manifest error in the trial court’s judgment, we affirm.

FACTS AND PROCEDURAL HISTORY

According to the record, Eagle provided workers’ compensation insurance to two related companies, Buzzy P, Inc. (Buzzy P) and Kelley Consulting Incorporated (KCI). Buzzy P was a wholly owned subsidiary of KCI. William Kelley was the owner of 100 percent of the outstanding shares of KCI. His wife, Pamela Kelley, held a community property interest in the KCI stock.

Eagle first issued a “Workers Compensation And Employers Liability Insurance Policy” to Buzzy P and KCI for the policy period October 1, 1995 to October 1, 1996. The policy was automatically renewed in October 1996 for another year. The policy contained a compensating balance plan endorsement whereby the insureds shared in the risk that payments might have to be made to claimants. Under the policy, premium adjustments were to occur on a monthly basis beginning seven months after the policy inception date and continuing on a monthly basis until eighteen months after the policy inception date. After the eighteenth month from the policy inception date, the premium adjustments were to occur on an annual basis for a period of four years. In order to keep its insureds apprised of all claim activity, Eagle provided monthly “loss-run” reports that set forth the amount paid and all other pertinent information for each claimant on the policy.

The premium at issue in this case arose from an employee claim made by Joel Per-lander against Buzzy P. According to the record, Perlander was injured in July 1997 and settled his claim approximately one year later for $150,000.00. Notwithstanding this settlement in August 1998, the Perlander claim was erroneously coded to another company 13and thus, omitted from Buzzy P’s monthly loss-run reports. Per-lander’s settlement resulted in an additional premium due and owing to Eagle in the amount of $139,433.00. However, Eagle did not bill Buzzy P for this additional premium until April 1999.

In July 1998, liquidation proceedings commenced to voluntarily dissolve Buzzy P and KCI without court proceedings. Mr. Kelley was appointed liquidator for both corporations. In connection with the liquidation proceedings, Mr. Kelley placed advertisements in two newspapers notifying the public of the pending liquidation. In August 1998, the Louisiana Secretary of State authorized the dissolution and liquidation of both Buzzy P and KCI. Thereafter, on August 28, 1998, Mr. Kelley, as liquidator, transferred the assets of Buzzy P to KCI in exchange for the surrender and cancellation of all outstanding shares of stock. He then transferred the assets of KCI to himself as the sole shareholder of KCI in exchange for the surrender and cancellation of all outstanding shares of KCI stock.

According to Mr. Kelley, at the time of the dissolution of his two companies, he did not consider Eagle to be a potential creditor. Although Perlander was injured in July 1997, Eagle had inadvertently been attributing this claim to another, unrelated company. It was not until mid 1998 that Eagle discovered this error concerning the Perlander claim. Nonetheless, monthly loss-run reports from Eagle to Buzzy P between July 1998 and April 1999 continued to omit any reference to the Perlander claim or the possibility that any additional premiums would be due. In fact, during a December 1998 meeting with Mr. Kelley, representatives from Eagle not only failed to advise Mr. Kelley of the Perlander claim, but indicated to Mr. Kelley that based on their rough calculations, he would be due a significant refund because of a successful subrogation claim by Eagle. Mr. Kelley later received a refund check from Eagle dated April 1, 1999 for $167,515.00.

Shortly thereafter, in a “Credit Memo” dated April 19, 1999, Eagle purportedly tried to notify Mr. Kelley, through his insurance agent, the Rosenthal Agency, that he owed Eagle $139,433.00 in unpaid premiums. According to testimony from Eagle’s representative, the Perlander claim was the reason for the premium adjustment. This came as a complete surprise to Mr. Kelley and the Rosenthal Agency.

Mr. Kelley refused to pay the additional premiums, asserting that the companies were legally liquidated and that he did not owe the money, as either liquidator or shareholder in |4possession of the corporate assets. Eagle then filed the instant suit against Production Systems, Inc., Buz-zy P, KCI, Mr. Kelley, as liquidator and shareholder, and Mrs. Kelley. Eagle argued that Mr. and Mrs. Kelley had breached a fiduciary duty owed to Buzzy P and its creditors. Eagle further claimed that Mr. and Mrs. Kelley had received an unlawful distribution of assets from Buzzy P and KCI thereby causing the companies to become insolvent and unable to pay the outstanding premiums owed to Eagle. Thus, Eagle maintained, the named defendants were liable to it for $139,433.00 plus interest, attorney fees, and costs.

The matter proceeded to a bench trial on June 11, 2002, at which time the court heard from various witnesses and accepted documentary evidence into the record. The court rendered judgment the following day, providing extensive oral reasons for same. The court found that the premium balance of $139,433.00 was correctly calculated by Eagle and was attributable to the settlement of the Perlander claim. The court concluded that Buzzy P was, in fact, liable to Eagle for $139,433.00, plus judicial interest and all costs not previously assessed. However, with regard to Eagle’s claims against Mr. and Mrs. Kelley, Production Systems, Inc., and KCI, the court dismissed these claims with prejudice, finding that Mr. Kelley had strictly complied with the liquidation statutes, thus protecting him, as well as the other remaining defendants, from any personal liability for the debt owed to Eagle.

It is from this judgment that Eagle has appealed, assigning the following specifications of error:

1. The trial court erred in finding that Mr. [Kelley], as liquidator of both [KCI] and PSI/Buzzy P, did everything he was supposed to do under La. R.S. 12:145 and further erred in concluding that Mr. [Kelley], as liquidator of both entities, was not liable to Eagle Pacific.
2. The trial court erred in finding that the distributions to [KCI] and then from [KCI] to Mr. and Ms. [Kelley] were lawful because the distributions left PSI/Buzzy P and [KCI] unable to pay their lawfully owed obligations to Eagle Pacific.

LIQUIDATOR LIABILITY

In its first assignment of error, Eagle asserts the trial court erred in not holding Mr. Kelley liable as liquidator of both Buz-zy P and KCI. In support of its argument, Eagle cites to La. R.S. 12:147(B) and contends Mr. Kelley, as liquidator, is personally liable for failing to provide Eagle with notice of the liquidation of Buzzy P.

| sIt is well settled in Louisiana law that a liquidator bears a fiduciary duty not only to the corporation being liquidated, but also to its shareholders and creditors. Edwins v. Lilly, 422 So.2d 1217, 1222 (La.App. 1 Cir.1982), writs denied, 426 So.2d 178, 180 (La.1983). Specifically, “[i]n the performance of his duties, each liquidator shall be bound to exercise that care and prudence in the listing, custody, possession, control and disposition of the property and moneys of the corporation coming into his hands, and in the proper accounting therefor, and distribution thereof, as by law is imposed upon fiduciaries.” La. R.S. 12:145(G). The law governing dissolution of corporations, and the liquidator’s duties in that respect, is designated to protect the rights of the corporation, its shareholders, and its creditors. Frederick v. LeBlanc, 551 So.2d 801, 803 (La.App. 3 Cir.1989), writ denied, 556 So.2d 59 (La.1990).

Under La. R.S. 12:147(B), a liquidator has a fiduciary duty to notify certain persons of a pending corporate dissolution, and the failure to do so may result in personal liability for the liquidator for any judgment against the corporation. Id. The statute provides as follows:

B. After the proceeding for dissolution has taken effect, notice thereof shall be (1) given by registered or certified mail to all known creditors of, to all persons believed to have valid and subsisting claims (excluding prescribed and time-barred claims) against, and to all persons having unfulfilled contracts with, the corporation, and (2) published once a week for two successive weeks in a newspaper of general circulation in the parish in which the corporation’s registered office is located. Such notice shall call on the addressees to present their claims in writing and in detail, at a specified place and by a specified date, not less than six months after the notice was mailed. The giving and publication of such notice shall not be deemed an acknowledgement of the validity of any claim against the corporation, waiver of any defense or set-off to any such claim, interruption of prescription on, or tolling of any statute of limitation applicable to, any such claim, or revival of any claim which has been barred by any prescription, peremption or statute of limitations.

After considering the testimony of the witnesses and the documentary evidence, the trial court concluded that Mr. Kelley satisfied his fiduciary duty as liquidator and, thus, was not personally liable for Buzzy P’s debt. In well-analyzed and thorough oral reasons for judgment, the court noted as follows:

The authorization to dissolve was issued by the Secretary of State August the 7th, 1998, and the corporation was placed in a voluntary liquidation and dissolution under Title 12, Section 145. Newspaper ads were run and proper corporate resolutions were adopted and, frankly, the Court feels that Buzzy P did everything it was suppose[d] to do under Title 12, Section 145, to properly carry out a voluntary liquidation of that corporation and the distribution of that corporation’s assets.
_k-' • •
[I]t is also quite apparent to the Court that as [of] August of 1998, when these liquidations occurred, that Mr. Kelley would not have had any reason to believe that he owed any more money to Eagle. All of the evidence would tend to indicate that because of the mistake made by Eagle and its, what appears to the Court to have been, its own confusion perhaps in December of 1998 about the status of the Joel Perlander claim, the Court believes that in August of 1998 Mr. Kelley reasonably believed that he did not or that Buzzy P, Incorporated, did not owe any money to the insurance company. And so he completed the liquidation, the dissolution, and distributed those assets.
It appears that notice by mail was not sent to the insurance company, and under the liquidation statutes apparently there is, there are two ways that creditors are notified. One is by mail and one is by general publication in newspapers. And it appears to the Court that Mr. Kelley, as liquidator of Kelley Consulting, Incorporated, and that Kelley Consulting, Incorporated, as the sole shareholder of Buzzy P, Incorporated, whose liquidator is also Mr. Kelley, did everything they were supposed to do under the statutes with regard to the liquidation and for a proper distribution of the assets.
However, in reviewing all of the statutes the Court has been unable to find any authority under which the shareholder of Buzzy P, Incorporated, that is Kelley Consulting, Incorporated, or the shareholder of Kelley Consulting, Incorporated, that is Mr. Kelley, or for that matter directors and liquidators, should be held liable under the circumstances of this case for the debt of Buzzy P, Incorporated. That is, by strictly complying with this liquidation statute, it seems to the Court that these other entities have effectively protected themselves from personal liability for a debt which ultimately this Court has found is owed by Buzzy P, Incorporated.
So based on all of those reasons, the Court will enter judgment in favor of Eagle against Buzzy P, Incorporated, only, for the principal amount sued upon, interest and court costs, but the Court will dismiss all claims against all other defendants in this case.

Following our review of the instant case, we conclude the record supports the trial court’s findings. It is clear from a reading of the trial court’s reasons for judgment that the court considered the comparative fault of Eagle in its decision to exonerate Mr. Kelley of any personal liability. See La. Civ.Code art. 2323. We agree that it was Eagle’s own negligence that caused Mr. Kelley to believe there were no outstanding premiums due to Eagle. Eagle should not now be rewarded for what amounts to a situation created solely by its own fault.

In the December 1998 meeting with Eagle’s representatives, Mr. Kelley specifically requested that Eagle provide him with information regarding all outstanding claims under his policies. According to Mr. Kelley, there was no mention of the Perlander claim during this meeting. Rather, the discussion centered on a possible refund that may be due to Mr. Kelley |7because of a successful subrogation claim by Eagle. Mr. Kelley made a good faith effort to insure that there were no outstanding debts to Eagle. Eagle had a duty to provide Mr. Kelley with accurate information concerning his request. Eagle not only failed to include the Perlander claim on any loss-run reports in 1998, but also compounded the problem by subsequently mailing a refund check to Mr. Kelley in April 1999 for $176,515.00. Based on the facts and circumstances herein, Mr. Kelley was justified in believing that there would be no further claims by Eagle.

Pursuant to La. R.S. 12:147(B), Mr. Kelley, as liquidator of both Buzzy P and KCI, was required to (1) send notice of the pending corporate dissolution to all known creditors, to all persons believed to have valid and subsisting claims against the corporation, and to all persons having unfulfilled contracts with the corporation and (2) publish notice, once a week for two consecutive weeks, in the local newspaper. Mr. Kelley testified that at the time of the dissolution of his two companies, all outstanding bills had been paid, thus leaving no creditors to notify of the pending dissolution. Moreover, Mr. Kelley indicated he published the required notice of dissolution in two local newspapers.

As the trial court correctly noted, “by strictly complying” with the liquidation statutes, Mr. Kelley protected himself and the other remaining defendants from any personal liability for the debt owed to Eagle by Buzzy P. Mr. Kelley did everything that was required of him by law and fulfilled his obligation as liquidator of Buzzy P and KCI. This assignment of error is without merit.

SHAREHOLDER LIABILITY

In assignment of error number two, Eagle argues Mr. and Mrs. Kelley are liable to Eagle for receiving an unlawful distribution of assets that rendered the corporations insolvent. Citing La. R.S. 12:55(A), 12:145(F), and 12:93(D), Eagle contends Mr. and Mrs. Kelley violated the law by accepting corporate assets before all outstanding corporate debts and liabilities were satisfied. We disagree.

Pursuant to La. R.S. 12:145(F), a liquidator is prohibited from distributing net assets while there are corporate debts outstanding. That statute provides as follows:

F. (1) Any net assets remaining after paying or adequately providing for the payment of all debts and liabilities of the corporation, including all costs and expenses of the liquidation and any and all contingent liabilities of which the Isliquidator has knowledge, shall be paid by the liquidator to the shareholders according to their respective rights and preferences. The share of any shareholder who cannot be found shall be delivered to the administrator of the Uniform Unclaimed Property Act of 1997.
(2) In the event that there are contingent liabilities for which provision has been made as above, the liquidator shall not be dismissed until the contingent liabilities and debts have been paid or settled in full.

Moreover, La. R.S. 12:55(A) prohibits a corporation from purchasing or redeeming its own shares when it is insolvent, or when the purchase or redemption would render it insolvent. With regard to shareholder liability, La. R.S. 12:93(D) specifically provides, in pertinent part, “Every shareholder who receives any unlawful dividend or other unlawful distribution of assets shall be liable to the corporation, or to creditors of the corporation, or to both, in an amount not exceeding the amount so received by him.” In order to prevail under La. R.S. 12:93(D), a plaintiff must establish that there was an unlawful distribution of assets and that the unlawful distribution was made to shareholders. AMP Service Corp. v. Richard, 419 So.2d 911, 914 (La.1982).

In the instant case, the trial court apparently found that Eagle failed to satisfy this burden of proof. The court offered the following analysis of the transactions leading to the dissolution of Buzzy P and KCI:

On August the 27th, 1998, Buzzy P Incorporated, through its liquidator Mr. Kelley, transferred all of its assets to its sole shareholder. And its sole shareholder of course was Kelley Consulting, Incorporated. Incidentally, subsequently] Kelley Consulting, Incorporated, transferred all its assets to Mr. Kelley. And I might add, at this point, that there appears to have been absolutely nothing improper, sinister, or otherwise incorrect or wrong about anything that either corporation did with regard to its dissolution, liquidation, and ultimate transfer of assets to Mr. Kelley as the sole shareholder of Kelley Consulting, which was then of course the sole shareholder of Buzzy P Incorporated. It’s quite proper and logical and expected that Mr. Kelley would end up with all of the net assets of those corporations. He assumed, expressly assumed certain debts that were owed by the company and apparently known to him.
[T]he original petition alleges that Mr. and Mrs. Kelley owe the money because Production Systems, Incorporated, was rendered insolvent by the transfer of assets to the Kelleys. And the Court, even granting that the original petition includes the allegation that Buzzy P’s assets or Production Systems assets were transferred to Kelley Consulting and that Kelley Consulting then transferred these to Mr. and Mrs. Kelley. Even granting if that were correct, the Court does not find that under the liquidation and dissolution articles of the corporation code that that imposes any kind of liability on the Kelleys or Kelley Consulting, if it did in fact render Buzzy P insolvent. Of course, distribution of assets pursuant to a liquidation plan should render a corporation insolvent. That’s the |nwhole purpose. But that doesn’t impose any personal liability on the ... recipients.
[T]he second amended petition alleges that Mr. and Mrs. Kelley are liable under Title 12, Section 93, because of an unlawful distribution of assets to a shareholder. And that’s simply not correct. It was a lawful distribution to Kelley Consulting, Incorporated. Even if I expand it, that Kelley Consulting, Incorporated, really means Mr. Kelley because he was the sole shareholder of that corporation, it’s still not an unlawful distribution.
And it also alleges a cause of action under Title 12, Section 95, based on fraud. And as I’ve said, I have absolutely no evidence whatsoever to support any allegation that anything Mr. Kelley or his corporations did in this case was fraudulent.

Similarly, we conclude that Eagle did not satisfy the burden of proof required to prevail under La. R.S. 12:93(D). There was no unlawful distribution of assets within the meaning of the statutes relied upon by Eagle. Due to Eagle’s own negligence, at the time of the dissolution of Buzzy P and KCI, Mr. Kelley had no knowledge, nor any reason to believe, that any funds were either due and owing or would be owed in the future to Eagle. All of the companies’ outstanding debts were paid, and there were no creditors remaining. Mr. Kelley proceeded with the dissolution and distribution of assets of Buzzy P and KCI as authorized by law. Accordingly, based on the unique facts and circumstances herein, we find no error in the trial court’s conclusion that Mr. and Mrs. Kelley bear no personal liability for the debt in question. This assignment of error is without merit.

CONCLUSION

For the above and foregoing reasons, and finding no manifest error in the trial court’s judgment, we affirm in all respects and assess all costs associated with this appeal to Eagle Pacific Insurance Company.

AFFIRMED.

DOWNING, J., dissents and assigns reasons.

McCLENDON, J., dissents.

hDOWNING, J.,

dissents and assigns reasons.

A travesty of law and justice, the majority opinion absolves a corporate liquidator of his high fiduciary duty to a corporate creditor and converts an unlawful distribution into a lawful one by simple transfer of assets from a subsidiary corporation to a parent corporation. As a result, Eagle Pacific Insurance Company (Eagle) is pre-eluded from collecting a lawfully owed contractual obligation and William and Pamela Kelley received a windfall in the amount of $139,433.00 to which they are not entitled. Accordingly, I dissent.

Liquidator Liability

Louisiana Revised Statutes 12:147 B requires notice by registered or certified mail “to all persons having unfulfilled contracts with the corporation.” And in August 1998 when the liquidator, Mr. William Kelley, distributed the assets of Buzzy P to its only shareholder, KCI, it is undisputed that Eagle and Buzzy P had an unfulfilled contract. Eagle had an existing contractual relationship that called for annual retrospective premium adjustments in April of each year. The next adjustment was due in April 1999. Despite this unfulfilled contract, the appointed liquidator mailed no notice whatsoever to Eagle prior to liquidation, not by registered mail, not by certified mail, not by first class mail, not by carrier pigeon.

| a A liquidator bears a fiduciary duty to the corporation being liquidated, its shareholders and to its creditors. Edwins v. Lilly, 422 So.2d 1217, 1222 (La.App. 1 Cir.1982). Specifically, “[i]n the performance of his duties, each liquidator shall be bound to exercise that care and prudence in the listing, custody, possession, control and disposition of the property and moneys of the corporation coming into his hands, and in the proper accounting therefor, and distribution thereof, as by law is imposed upon fiduciaries.” La. R.S. 12:145 G. As fiduciary, his duty is of the highest obligation required by law. Id. A liquidator must “zealously, diligently and honestly guard and champion the rights of his principal against all other persons whomsoever.” Noe v. Roussel, 310 So.2d 806, 819 (La.1975).

In Edwins, 422 So.2d at 1222, this court concluded as follows concerning a liquidator’s failure to prudently handle the affairs of a corporation in liquidation:

“By remaining as liquidator without fully performing the duties required of him, he failed to prudently handle the affairs of the corporation in liquidation.”

I similarly conclude that Mr. Kelley as Buzzy P’s liquidator failed to prudently handle the affairs of the corporation in liquidation by not fully performing the duty required of him to notify Eagle of the liquidation by registered or certified mail.

Here, the majority concludes that the liquidator fulfilled its obligation through notice by publication. However, the United States Supreme Court has instructed in City of New York v. New York, New Haven & Hartford Railroad Company, 344 U.S. 293, 296, 73 S.Ct. 299, 301, 97 L.Ed. 333 (1953), “that: ‘Notice by publication is a poor and sometimes a hopeless substitute for actual service of notice. Its justification is difficult at best. See Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950).” ’ And La. R.S. | ,4-2:147 B required that Eagle receive actual notice by registered or certified mail since its address was known and a continuing contractual relationship existed.

The majority also concludes that Eagle’s own negligence absolved the liquidator from sending actual notice. It is undisputed that the liquidator believed no money was owed to Eagle because monthly loss-run reports from Eagle to Buzzy P failed to reflect the employee claim between July 1998 and April 1999. Eagle had inadvertently been attributing this claim to another, unrelated company. Even so, the trial court found that Mr. Kelley should have known of the claim’s existence, if not magnitude, by July 1998.

I do not agree that Eagle’s mistake or Mr. Kelley’s beliefs, justified or not, absolved Mr. Kelley from his high fiduciary duty as liquidator to perform his mandatory duty to send Eagle notice by registered or certified mail. See Frederick v. LeBlanc, 551 So.2d 801, 803 (La.App. 3 Cir.1989), where the Third Circuit adopted the following reasons of the trial court, which I also adopt:

Had [the creditor] been so notified, her attorney may have been able to protect her rights with respect to preserving corporate assets so that she would not end up with a worthless judgment. The liquidator’s failure to notify Plaintiff in this case makes him personally liable for the previous judgment obtained against the corporation.

The majority also asserts that Eagle compounded the problem when it paid Mr. Kelley a refund owed on a different contract after a December 1998 meeting in which Eagle reported no sums were due. But this meeting occurred nearly four months after the assets had been distributed. It is disingenuous for the majority to suggest that this meeting had any bearing on the distribution of corporate assets. And is the majority suggesting that Eagle should not have paid the debt it owed on a separate policy to create a standoff over the sums it was owed on the policy at issue? Under today’s result, such unlawful standoff and|4refusal to pay a just debt would have resulted in an unsuccessful outcome for Eagle.

Accordingly, I conclude the trial court erred when it found that Mr. Kelley as liquidator fulfilled his duties under La. R.S. 12:147 B and was not liable to Eagle as liquidator. Because of the liquidator’s failure to fulfill his duties, he caused assets due Eagle to be distributed to KCI, then to Mr. Kelley as its sole shareholder. Therefore, I would reverse the judgment of the trial court in these regards and enter judgment in favor of Eagle and against Mr. William Kelley, individually, as liquidator of both Buzzy P and KCI, in the full sum of one hundred thirty-nine thousand four hundred thirty-three and no/100 dollars ($139,433.00), with interest from April 13, 2000 and court costs.

Shareholder Liability

Louisiana Revised Statutes 12:93 D provides for shareholder liability as follows: “Every shareholder who receives any unlawful dividend or other unlawful distribution of assets shall be liable to the corporation, or to creditors of the corporation, or to both, in an amount not exceeding the amount so received by him.” “Unlawful” means that which is contrary to, prohibited, or unauthorized by law. The term does not necessarily imply the element of criminality. Black’s Law Dictionary, 5th Ed. (1979). The majority converts an unlawful distribution into a lawful distribution by the simple transfer of assets from a subsidiary corporation to a parent corporation.

Here, the judgment holding Buzzy P liable to Eagle is final, as no party is appealing this aspect of the judgment. Buzzy P, therefore, lawfully owes Eagle one hundred thirty-nine thousand four hundred thirty-three and no/100 dollars ($139,433.00), with interest and costs. Accordingly, it was clearly unlawful for Buzzy P’s liquidator to distribute this sum to KCI and equally unlawful for KCI |sto distribute unlawfully held funds to its stockholders. I suggest that such transfers do not wash a distribution of its initial unlawfulness.

In McGregor v. United Film Corp., 351 So.2d 1224 (La.App. 1 Cir.1977), the assets of a debtor corporation were diverted and distributed to its only stockholder in violation of the rights of an injured employee claiming workmen’s compensation benefits. The court held that the debtor corporation’s transfer of monies to another corporation in payment of a debt owned by sole shareholder of the debtor corporation was an unlawful distribution of assets rendering the shareholder liable to creditors of creditor corporation. McGregor, 351 So.2d at 1228. The court noted that it made no difference whether the debt was liquidated or unliquidated. Id. The court also noted that the money judgment does not create a debt, but merely recognized it and makes it executory. Id.

Similarly, I conclude that KCI, as sole stockholder and recipient of the assets of Buzzy P, is liable for Eagle’s claim for retrospective premium adjustment, which was unliquidated at the time corporate assets were distributed to shareholders. Further, I conclude that Mr. and Mrs. Kelley are also liable for the same debt. They received from KCI sums that were unlawfully distributed to it and were lawfully owed to Eagle. They were not entitled to this distribution. Accordingly, I conclude that the trial court committed legal error in concluding that the distributions to KCI, then to Mr. Kelley, were lawful distributions when Buzzy P was legally obligated to Eagle.

Again the majority faults Eagle for its own loss, but Eagle’s inadvertence did not confer legality on an unlawful distribution.

The legislative intent underlying La. R.S. 12:93 D is the protection of corporate creditors. Security Center Protection Services, Inc. v. All-Pro Security, Inc., 97-1070, p. 4 (La.App. 4 Cir. 11/26/97), 703 So.2d 806, 808. | nFor Eagle to prevail on a claim under La. R.S. 12:93 D, it has the burden of establishing that there was an unlawful distribution of assets and that this distribution was made to shareholders. AMP Service Corp. v. Richard, 419 So.2d 911, 914 (La.1982). Eagle has met both of these elements. Accordingly, I would find merit in Eagle’s second assignment of error. I would enter judgment pursuant to La. R.S. 12:98 D in favor of Eagle and against KCI, as sole stockholder of Buzzy P, in the full sum of One hundred thirty-nine thousand four hundred thirty-three and no/100 dollars ($139,433.00), with interest from April 13, 2000 and court costs. Further I would enter judgment pursuant to La. R.S. 12:93 D in favor of Eagle and against Mr. and Mrs. Kelley in the full sum of One hundred thirty-nine thousand four hundred thirty-three and no/100 dollars ($139,433.00), with interest from April 13, 2000 and court costs. I conclude that this sum is less than the amount distributed to KCI and the Kelleys as shareholders, thus awardable under La. R.S. 12:93 D.

Result

This anti-business, pro-windfall decision incorrectly deprives Eagle of its contractually established right to reimbursement of sums it paid on behalf of Buzzy P and gives undue enrichment to Mr. and Mrs. Kelley. The trial court specifically stated it did not believe that Eagle’s failure to list this claim on its loss-run report forms “had any substantial effect” on Mr. Kelley’s decision about the sale of corporate assets. It concluded that Mr. Kelley did not prove that he detrimentally relied on Eagle’s inadvertent failure to list this claim when it determined the sale price for Buzzy P’s assets.

Had the law authorized today’s result, I would agree. But, I believe that both the liquidator and the shareholders to whom Eagle’s money was distributed are lawfully obligated to Eagle. Respectfully, I dissent.

      . According to the record, when Eagle issued the insurance policy in question, this company was operating under the name of Production Systems, Inc. However, effective October 1, 1997, Mr. Kelley sold certain assets of Production Systems, Inc. and the right to use the company’s name to a third party. Thereafter, Mr. Kelley changed the name of his company to Buzzy P, Inc. To avoid any confusion, we will refer to this company as Buzzy P.


source: Caselaw Access Project

author: | JARRO, J.

license: Public Domain

text:
    Carol Lyn SPENCER v. STATE of Louisiana, through the DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT.
    No. 2003 CA 0539.
    Court of Appeal of Louisiana, First Circuit.
    Aug. 11, 2004.

      Phil Breaux, Breaux & Hornstein, St. Gabriel, for Plaintiff-Appellee Carol Lyn Spencer.
    Fred H. Belcher, Jr., Katherine M. La-Porte, Office of Attorney General, Baton Rouge, for DefendanL-Appellant State of Louisiana, through the Department of Transportation and Development.

      Before: CARTER, C.J., PARRO, and GUIDRY, JJ.
   | JARRO, J.

The State of Louisiana, through the Department of Transportation and Development (DOTD), appeals a judgment awarding maintenance and cure payments, compensatory damages, attorney fees, court costs, and legal interest to Carol Lyn Spencer, who was injured while working for DOTD as a deckhand on two Mississippi River ferries. We reverse and remand.

FACTUAL AND PROCEDURAL BACKGROUND

Carol Lyn Spencer worked for DOTD as a deckhand on two Mississippi River ferries, the MTV Iberville and the MW St. Francisville. On February 10, 2000, she was treated for an ankle injury that occurred while working on one of the ferries. She missed some work, but the sprained ankle injury resolved within a few weeks.

On March 21, 2000, Spencer seriously injured her hand while trying to operate the ferry gate. This injury required surgery, which was performed a week later by Dr. A.N. Diodené, Jr., an orthopedic surgeon. Spencer tried unsuccessfully to return to work in June; her doctor finally released her to work without limitations on August 29, 2000.

On August 10, 2000, Spencer filed this suit as a seaman under the general maritime and admiralty laws, pursuant to the “saving to suitors” provisions, claiming her injuries were the result of the unseaworthiness of the vessels and the negligence of DOTD. Her petition did not include a claim for maintenance and cure. On November 9, 2000, DOTD answered and requested a jury trial on all issues.

Spencer continued working for DOTD on the ferries for about a year, but quit sometime during the summer of 2001. She returned to Dr. Diodené in October 2001, complaining of increased pain in her injured hand. Based on his examination of her, he concluded that a second surgery was needed. DOTD received this recommendation on December 28, 2001, and asked Spencer to submit to an independent medical examination to confirm the surgery was needed and was related to the earlier injury.

|3In January 2002, Spencer filed a supplemental and amending petition, claiming DOTD had arbitrarily refused to pay maintenance and cure and had refused to approve the surgery she needed. She also asserted that as a result of DOTD’s failure to pay medical expenses from the first surgery, she had been sued by the hospital. In her supplemental and amending petition, she asked for payment of all medical expenses, maintenance benefits, attorney fees, and damages.

An independent medical examination was eventually conducted by Dr. Joe A. Morgan, who agreed with Dr. Diodené’s recommendation and concluded that Spencer’s problems with her hand were probably related to the initial injury. Dr. Diodené performed the second surgery on April 26, 2002.

On Spencer’s motion, the court severed her Jones Act and unseaworthiness claims from her claims for maintenance and cure, and tried the maintenance and cure claims in a bench trial on July 29, 2002. The evidence revealed that when Spencer missed work after her ankle injury in February 2000, she was paid her full salary, because she had sick leave. DOTD paid her medical expenses and also paid her $275 for seaman’s maintenance benefits at the rate of $25 per day. However, because Spencer was subject to civil service rules and had already received her full salary due to sick leave, DOTD required her to refund maintenance payments exceeding her regular salary. Because of this policy, she had to refund the entire $275. According to DOTD, these funds “bought back” her sick leave, which was then credited back to her.

When Spencer injured her hand, DOTD paid maintenance for the period of March 22, 2000, through August 29, 2000, in three checks totaling $3,575. Of this amount, LSpencer was required to refund $621.10. Although payment of some of the medical expenses was delayed, DOTD eventually paid all the expenses related to her first hand surgery and settled a lawsuit the hospital had filed against Spencer.

When the second hand surgery was performed, DOTD again paid maintenance to Spencer, commencing April 26, 2002, and continuing through July 21, 2002. She was no longer working for DOTD at this time, so she retained all of these maintenance payments. By July 29, 2002, when the maintenance and cure claims were tried, DOTD had approved all of the related medical bills for payment, but not all of the checks had been issued. By that time, several creditors were again commencing collection procedures against Spencer.

After the trial, the court took the matter under advisement and asked for post-trial briefs. Apparently, the court reached its decision in favor of Spencer on August 29, 2002, but the judgment was not signed at that time. On December 2, 2002, Spencer submitted proposed findings of fact and conclusions of law to the court. On December 11, 2002, the court signed a judgment indicating that judgment had been rendered August 29, 2002, and stating, in pertinent part:

[T]he court finds that the defendant improperly required the plaintiff to refund maintenance payments and failed to pay or timely pay maintenance and cure to or on behalf of the plaintiff and that the defendant’s conduct was arbitrary and capricious. Therefore:
IT IS ORDERED that the State of Louisiana/DOTD pay to the plaintiff the sum of $896 in maintenance payments that the plaintiff reimbursed to the State of Louisiana/DOTD with interest.
IT IS FURTHER ORDERED that the State of Louisiana/DOTD pay to the plaintiff the sum of $2,975 representing maintenance payments from December 28, 2001[,] through April 25, 2002, at the rate of $25 per day with interest.
IT IS FURTHER ORDERED that the State of Louisiana/DOTD pay the plaintiff $15,000 in compensatory damages and $15,000 in attorneys fees with interest.

The judgment also ordered DOTD to pay Dr. Diodené’s expert witness fee of $700 and all court costs. Written reasons for judgment signed December 11, 2002, state:

The Court hereby adopts the Plaintiffs Pretrial Memorandum on Maintenance and Cure Claim and Plaintiffs PosL-Trial Memorandum as its written reasons for judgment.

l,Jn this appeal, DOTD contends the court erred in failing to properly provide written reasons for judgment and in considering the plaintiffs proposed findings of fact and conclusions of law in rendering its judgment. DOTD also claims the court erred in severing the maintenance and cure issues for a bench trial and in awarding damages. In light of our conclusion regarding the severance of the maintenance and cure issues for a bench trial, we pretermit discussion of the other assignments of error raised by DOTD.

DISCUSSION

Maintenance and Cure

Maintenance and cure are centuries-old remedies under the general maritime law. A seaman’s right to maintenance and cure is implicit in the contractual relationship between the seaman and his employer, and is designed to ensure the recovery of these individuals upon injury or sickness sustained in the service of the ship. Maintenance and cure are due without regard to the negligence of the employer or the unseaworthiness of the ship. Maintenance is a per diem living allowance, paid so long as the seaman is outside the hospital and has not reached the point of “maximum cure.” Cure involves the payment of therapeutic, medical, and hospital expenses not otherwise furnished to the seaman, again, until the point of “maximum cure.” Maximum cure is achieved when it appears probable that further treatment will result in no betterment of the seaman’s condition. Pelotto v. L & N Towing Co., 604 F.2d 396, 400 (5th Cir.1979). A seaman may join his maintenance and cure claims with those based on the Jones Act and unseaworthiness. Id. at 400-01.

Severance/Jury Trial Issue

Under Louisiana Revised Statute 13:5105(A), a suit against the state or a state agency may be tried by a jury only if the state, its agency, or the plaintiff makes a timely demand for a jury trial. The right to a trial by jury is recognized in all cases, except as limited by Article 1732 of the Louisiana Code of Civil Procedure. LSA-C.C.P. art. 1731(A). Before its amendment in 1999, Article 1732(6) stated that a trial by jury was not available in a suit on an admiralty or general maritime claim under federal law brought in state court under a federal “saving to suitors” clause, if the plaintiff | ^designated that suit as an admiralty or general maritime claim. In Parker v. Rowan Companies, Inc., 599 So.2d 296, 299 (La.1992)(on rehearing), cert. denied, 506 U.S. 871, 113 S.Ct. 203, 121 L.Ed.2d 145 (1992), the Louisiana Supreme Court examined the history of this provision and concluded its purpose was to “track the federal system and give injured seamen who choose to file in state court the same choice of jury or bench trial as they would have in federal court.” The court further concluded that the right to choose a bench trial over a jury trial was exclusive to the plaintiff and did not violate the due process rights of a defendant who requested a trial by jury. Id. at 301.

However, this holding in Parker was based entirely on the former language of Article 1732(6), which was repealed in 1999. Our research has disclosed only one case addressing this issue for a cause of action arising after the repeal of this provision. In Hahn v. Nabors Offshore Corp., 02-0084 (La.App. 3rd Cir.6/26/02), 820 So.2d 1283, writ denied, 02-2091 (La.11/1/02), 828 So.2d 575, the defendant requested a jury trial and the trial court denied the plaintiff’s motion to strike the jury trial. The third circuit denied the plaintiffs application for supervisory writs, concluding that because the right to trial by jury in admiralty/general maritime claims was no longer restricted by Article 1732(6), the defendant’s right to a jury trial should be recognized. Id. at 1285. As did the third circuit, this court has also reviewed the minutes of the legislative committees in which the amending legislation was discussed. These reveal that the purpose of the legislation was to make it possible for a defendant to maintain the right to a jury trial in admiralty cases in state court, rather than allowing only the plaintiff to make that choice.

Unlike in criminal matters, there is no constitutional right to trial by jury in a civil case in Louisiana courts. Riddle v. Bickford, 00-2408 (La.5/15/01), 785 So.2d 795, 799. The right to jury trials in civil cases is not so fundamental to the American system of justice as to be required of state courts by the due process clause of the Fourteenth Amendment. Blanchard v. City Parish of East Baton Rouge, 95-2011 (La.App. 1st Cir.4/30/96), 674 So.2d 317, 320, writ denied, 96-1511 (La.9/20/96), 679 So.2d 443. However, the right to a trial by jury in a civil case is a basic right and should be protected in the absence of specific authority for its denial. Champagne v. American Southern Ins. Co., 295 So.2d 437, 440 (La.1974). When a party makes a timely request and complies with the other procedural requisites, his right to a jury trial cannot be violated. Blanchard, 674 So.2d at 325. The right to a jury trial is favored in the law and any doubtful statutory provision should be liberally construed in favor of granting a jury trial. Brewton v. Underwriters Ins. Co., 02-2852 (La.6/27/03), 848 So.2d 586, 589.

Spencer argues that when she amended her petition and added a maintenance and cure claim, DOTD did not request a jury trial on those issues. However, DOTD had already made a timely request for a jury trial on all issues; it was not required to reiterate that request for additional claims added by Spencer. Spencer also notes that DOTD did not file an appeal or application for supervisory writs when the trial court decided to sever the maintenance and cure claims and handle them in a bench trial, implying that DOTD waived its right to complain. However, the ruling on the motion was an interlocutory ruling that could only be appealed upon a showing of irreparable injury. LSA-C.C.P. art. 2083. The mere denial of a jury trial, without more, does not, on its face, result in irreparable injury such that it warrants a separate appeal. Guidroz v. State Farm Fire & Cas. Co., 334 So.2d 535, 539 (La.App. 1st Cir.1976). The appropriate remedy in these instances is either the application for supervisory writs or appeal after a final judgment. Id. Therefore, DOTD’s choice to appeal the issue after a final judgment, rather than to apply for supervisory writs, does not constitute a waiver of its right to bring the issue before this court.

Moreover, given that DOTD had requested a jury trial on all issues and Spencer chose to add her maintenance and cure claims to her Jones Act and general maritime claims, the maintenance and cure claims should not have been severed for a separate bench trial. In Fitzgerald v. United States Lines Co., 374 U.S. 16, 20, 83 S.Ct. 1646, 1650, 10 L.Ed.2d 720 (1963), the United States Supreme Court noted that while a jury trial is not required in admiralty cases, neither is a jury trial forbidden for such cases by |sany provision of the United States Constitution or statutes. Emphasizing that dual fact-finders were cumbersome, confusing, time-consuming, and completely unnecessary, the court stated that only one trier of fact should be used for the trial of what is essentially one lawsuit to settle one claim split conceptually into separate parts because of historical developments. Id. at 21, 83 S.Ct. at 1650. It concluded that general maritime claims could and should be heard before a jury when joined with Jones Act claims, when both arise out of one set of facts. Id. Moreover, the court ordered a jury trial on the maintenance and cure claims despite its refusal to review the dismissal of the plaintiffs Jones Act claim. Id. at 21-22, 83 S.Ct. at 1650-51.

Without citing Fitzgerald, in which it was the plaintiffs right to a jury trial that was protected, the United States Fifth Circuit Court of Appeals analyzed a situation in which the seaman plaintiff alleged diversity jurisdiction, as well as admiralty jurisdiction, and later sought to withdraw his request for a jury trial without following a federal rule requiring the defendant’s consent. Johnson v. Penrod Drilling Co., 469 F.2d 897 (5th Cir.1972), rehearing en banc granted, 478 F.2d 1208 (1973), affd on this issue en banc, 510 F.2d 234 (1975), cert. denied, 423 U.S. 839, 96 S.Ct. 68, 46 L.Ed.2d 58 and 423 U.S. 839, 96 S.Ct. 69, 46 L.Ed.2d 58 (1975). The court determined that an independent basis of jurisdiction existed under which the defendant had the right to a trial by jury. Id. at 902. Therefore, the plaintiff had to comply with Federal Rule 39(a), which required that when a jury trial had been properly demanded, trial of all issues must be by jury, unless the parties stipulated in writing or in open court that they all consented to a bench trial or if the court found there was no constitutional or statutory right to a trial by jury of some or all of the issues. Id. at 903.

Louisiana Code of Civil Procedure article 1736 is strikingly similar to Rule 39(a), stating:

The trial of all issues for which a jury trial has been requested shall be by jury, unless the parties stipulate that the jury trial shall be as to lflcertain issues only or unless the right to trial by jury as to certain issues does not exist; however, except as otherwise provided under the provisions of Article 1562, there shall be but one trial.

The official revision comments to Article 1736 refer to the comparable provision in Federal Rule 39 and state that the last clause was added to provide specific protection against piecemeal trial of cases.

In the case before us, Article 1731, along with DOTD’s timely request for a jury trial on all issues pursuant to LSA-R.S. 13:5105, provided DOTD with a statutory right to a trial by jury under Louisiana law. Under Article 1736, and applying the rationale of the Johnson case, that right could not be foreclosed and all issues should have been tried in one trial. We conclude, therefore, that the trial court erred in severing the maintenance and cure claims, thereby denying DOTD’s right to a trial by jury on the issues related to those claims. Accordingly, the judgment must be reversed and the case remanded for a jury trial on all the issues. See Dardar v. Texoma Contractors, Inc., 446 So.2d 890, 892 (La.App. 1st Cir.1984); Fitzgerald, 374 U.S. at 21-22, 83 S.Ct. at 1650-51.

CONCLUSION

The judgment of December 11, 2002, is reversed, and this case is remanded for further proceedings. All costs of this appeal are assessed to Spencer.

REVERSED AND REMANDED.

      . This is the first of two appeals from the same lawsuit. In the second appeal, DOTD appeals an award of damages based on Spencer's Jones Act and unseaworthiness claims. See Spencer v. State of Louisiana, Dep't of Transp. and Dev., 03-2849 (La.App. 1st Cir.8/11/04), 887 So.2d 35, 2004 WL 1789591.

      . Having requested a jury trial on all issues, DOTD objected to having the maintenance and cure claims tried separately in a bench trial. However, the court granted Spencer’s motion to sever.

      . The refund requirement was based on Civil Service Rule 11.21, which states:
      When an employee is absent from work due to disabilities for which he is entitled to workmen’s compensation he
      (a)shall, to the extent of the amount accrued to his credit, be granted sick leave not to exceed the amount necessary to receive total payments for leave and workmen’s compensation equal to his regular salary.
      (b) may, to the extent of the amount accrued to his credit, be granted annual leave or a combination of annual and sick leave not to exceed the amount necessary to receive total payments for leave and workmen’s compensation equal to his regular salary.
      (c) may be granted leave without pay.

      . According to the parties, the judge’s law clerk called and informed them that the court had ruled in favor of Spencer on all the issues.

      . 1999 La. Acts, No. 1363, § 1, effective August 15, 1999, repealed this prohibition; Section 2 of Act 1363 made the repeal applicable to causes of action arising on or after its effective date.

        . Compare Lavergne v. Western Co. of North America, Inc., 371 So.2d 807, 810 (La.1979). In that case, which considered whether a litigant is entitled to a jury trial on an admiralty claim in personam brought in our state courts, the Louisiana Supreme Court held that if the right to trial by jury is one of the remedies saved to a suitor under 28 U.S.C. § 1333, then this remedy should be afforded him in our state courts. The court also recognized that a state court, having concurrent jurisdiction with the federal courts as to in personam admiralty claims, is free to adopt such remedies and attach to them such incidents as it sees fit, so long as it does not attempt to modify or displace essential features of the substantive maritime law. The court noted that trial by jury is a remedy generally afforded in our state courts.

      . Article 1562 allows bifurcated trials of liability and damages, with the consent of the parties, or separate trials to determine insurance coverage issues, again with the consent of the parties.

      . We express no opinion as to the merits of Spencer's claims.

      . Of course, a jury trial would not be appropriate if, for example, DOTD withdrew its request for a jury trial on all issues or Spencer stipulated that the value of all her claims against DOTD would not reach the jurisdictional threshold for a jury trial.

      . As previously noted, after a final judgment was rendered and this appeal had been filed on the maintenance and cure claims, a second trial was held. Before that trial, Spencer stipulated that the value of her remaining claims was less than $50,000, and the trial court concluded this stipulation precluded a jury trial on those claims. See LSA-C.C.P. art. 1732(1). Following the second bench trial, the judgment on those claims was separately appealed, and this appeal was re-docketed for consideration with the second appeal. Although this procedure allows the same panel of this court to consider both appeals, it does not allow this court to treat the two separate appeals as if it were just one appeal of both judgments. This situation is a classic illustration of why piecemeal trials and appeals are disfavored, as our decision in this case necessarily interdicts the judgment rendered on the remaining claims.


author: | {FARRO, J.

text:
    Carol Lyn SPENCER v. STATE of Louisiana, through the DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT.
    No. 2003 CA 2849.
    Court of Appeal of Louisiana, First Circuit.
    Aug. 11, 2004.

      Phil Breaux, Breaux & Hornstein, St. Gabriel,, for Plaintiff-Appellee Carol Lyn Spencer.
    Fred H. Belcher, Jr., Katherine M. La-Porte, Office of Attorney General, Baton Rouge, for DefendanL-Appellant State of Louisiana, through the Department of Transportation and Development.
    Before: CARTER, C.J., PARRO, and GUIDRY, JJ.
   | {FARRO, J.

The State of Louisiana, through the Department of Transportation and Development (DOTD), appeals a judgment awarding damages, court costs, expert witness fees, and legal interest to Carol Lyn Spencer, who was injured while working for DOTD as a deckhand on two Mississippi River ferries. The factual and procedural background of this appeal is set out in a related appeal also decided this date, and will not be repeated here. In that portion of the case, the trial court severed Spencer’s maintenance and cure claims and tried those claims without a jury, over the objection of DOTD. We concluded DOTD’s right to a trial by jury could not be foreclosed in this manner and all issues should be tried in one trial. See Spencer v. State of Louisiana, Dep’t of Transp. and Dev., 03-0539 (La.App. 1st Cir.8/11/04), 887 So.2d 28, 2004 WL 1789590 (Spencer I).

After judgment was rendered on her maintenance and cure claims, Spencer stipulated that her remaining Jones Act and unseaworthiness claims had a value less than $50,000. The trial court concluded this precluded DOTD’s right to a jury trial on those claims by the application of LSA-C.C.P. art. 1732(1), and after a second bench trial, awarded Spencer $32,800 in past lost wages and $40,000 for pain and suffering, reducing those damages to $50,000 to comply with her stipulation. In this appeal, DOTD again claimed its right to a jury trial had been wrongfully abridged. and contested the amount of damages awarded.

DISCUSSION

Under Article 1731 of the Louisiana Code of Civil Procedure, the right of trial by jury is recognized in all eases, except as limited by Article 1732, and the nature and amount of the principal demand determines whether a jury trial is available. Article 1732(1) states that a jury trial shall not be available in a suit where no individual petitioner’s cause of action exceeds the amount of fifty thousand dollars, exclusive of interest and costs. The trial of all issues for which a jury trial has been requested shall be by jury, unless the parties stipulate that the jury trial shall be as to certain issues only or unless the right to trial by jury as to certain issues does not exist; however, [.^except as otherwise provided under the provisions of Article 1562, there shall be but one trial. LSA-C.C.P. art. 1736.

In the most recent statement from the Louisiana Supreme Court concerning Article 1732(1), Benoit v. Allstate Ins. Co., 00-0424 (La.11/28/00), 773 So.2d 702, the plaintiff had settled with the tortfeasor and its insurer for $100,000, and the case proceeded to trial against the remaining defendant, plaintiffs uninsured motorist insurance (UM) carrier. The UM carrier asserted that it was entitled to a jury trial, because although its policy limits were only $10,000, thus limiting the value of the plaintiffs claims to less than $50,000, the total amount in dispute in the case met the jurisdictional threshold. The Louisiana Supreme Court summarized its attempts to define “cause of action,” as used in Article 1732(1), as follows:

In Trahan v. Liberty Mut. Ins. Co., 314 So.2d 350, 353 n. 4 (La.1975), this court defined cause of action, in the context of an issue of interruption of prescription, as “[t]he juridical facts which constitute the basis of the right,” “[t]he immediate basis of the right which the party seeks to exercise,” and “[t]hat which serves as a basis for demand.” Under these definitions, the term “cause of action” focuses on the conduct of the particular defendant in the occurrence or transaction which gives rise to the plaintiffs demand.
In Everything on Wheels Subaru, Inc. v. Subaru South, Inc., 616 So.2d 1234 (La.1993), this court stated that the term “cause of action,” as used in the context of the peremptory exception of no cause of action, means “the operative facts which give rise to the plaintiffs right to judicially assert the action against the defendant.”

Benoit, 773 So.2d at 706 (footnote omitted). The court concluded that the language of Article 1732(1) was intended to focus on the value of the plaintiffs claims against the defendant or defendants who are before the court at the time the right to a jury trial is litigated, thus placing the focus on the particular defendant, rather than on the plaintiff. Id. at 708. Because the value of the claims against the particular defendant in Benoit did not meet the jurisdictional threshold, the UM carrier was not entitled to trial by jury. Id. at 709.

The discussion of cause of action in the Benoit case comports with the definition provided by Black’s Law Dictionary, which defines a cause of action as:

14A group of operative facts giving rise to one or more bases for suing; a factual situation that entitles one person to obtain a remedy in court from another person ....

Black’s Law Dictionary 214 (7th ed.1999). Black’s goes on to define a “new cause of action” as a “claim not arising out of or relating to the conduct, occurrence, or transaction contained in the original pleading.” Id.

The revision comments to LSA-R.S. 13:4231 also discuss the term, “cause of action,” in the context of res judicata, stating that if a second action arises out of the same occurrence that was the subject matter of prior litigation, that action would be barred as res judicata, explaining:

The central inquiry is not whether the second action is based on the same cause or cause of action (a concept which is difficult to define) but whether the second action asserts a cause of action which arises out of the transaction or occurrence which was the subject matter of the first action.... [B]y focusing on the transaction or occurrence which would be comparatively easy to determine, ... the much more difficult problem of defining what constitutes “cause of action” is avoided. For purposes of res judicata it would not matter whether the cause of action asserted in the second action was the same as that asserted in the first or different as long as it arose out of the transaction or occurrence that was the subject matter of the first action.

LSA-R.S. 13:4231, Comments — 1990, comment (a); see also Frank L. Maraist & Harry T. Lemmon, Civil Procedure § 6.7, at 125-27, in 1 Louisiana Civil Law Treatise (1999).

The United States Supreme Court discussed the unitary set of circumstances that frequently gives rise to multiple claims and remedies in admiralty litigation, noting in the Fitzgerald case:

Although remedies for negligence, unseaworthiness, and maintenance and cure have different origins and may on occasion call for application of slightly different principles and procedures, they nevertheless, when based on one unitary set of circumstances, serve the same purpose of indemnifying a seaman for damages caused by injury, depend in large part upon the same evidence, and involve some identical elements of recovery.

Fitzgerald v. United States Lines Co., 374 U.S. 16, 18, 83 S.Ct. 1646, 1649, 10 L.Ed.2d 720 (1963).

With this background in mind, we note that the matter before us differs from the Benoit situation in several ways. First, the Benoit case initially involved multiple defendants, whereas the situation before this court involves a plaintiff asserting multiple Isdaims against a single defendant. In this ease, there is and has always been only one defendant — DOTD—and a unitary set of circumstances underlies the value of Spencer’s claims against that defendant. There is only one operative set of facts giving rise to her several bases for suing DOTD. Applying the Benoit rationale to this single defendant, in order to meet the monetary limitation on jury trials in Article 1732(1), Spencer’s stipulation concerning the value of her cause of action against DOTD would have to have covered the value attributable to all of her claims against this single defendant, rather than just a portion of them.

Second, the other defendants in Benoit had settled with the plaintiff before the jury trial issue concerning the remaining defendant was determined. In the matter before us, DOTD did not settle the maintenance and cure claims with Spencer; rather, the trial court severed those claims for a bench trial over DOTD’s objections. In Spencer I, we determined that the trial court erred in severing the maintenance and cure claims for a bench trial, because DOTD had asked for a jury trial over all issues and Article 1736 mandates a single trial by jury in that situation.

The problem for this court is that the issue of whether or not DOTD was entitled to a jury trial was actually determined twice in Spencer’s lawsuit — once in connection with the maintenance and cure claims, and again after she stipulated that the value of the Jones Act and unseaworthiness claims did not exceed $50,000. Arguably, by virtue of that stipulation, the right to trial by jury no longer existed when this second determination was made. However, because we determined in Spencer I that the trial court erred in severing the claims, we must evaluate the right to a jury trial in the light of the total value of Spencer’s claims against DOTD arising out of this single set of operative facts. Under that evaluation, we conclude that it was legal error for the court to deny DOTD the right to a jury trial based on Spencer’s stipulation as to the value of a portion of her claims, when the total value of all of her demands against DOTD potentially exceeded that amount.

We would reach a different conclusion, as did the court in Benoit, if the maintenance and cure claims had been settled before the jury trial issue concerning | fithe remaining claims was determined. If DOTD had settled the maintenance and cure claims before Spencer stipulated concerning the value of her remaining claims in order to preclude a jury trial, an exception to the requirement of only one trial provided in Article 1736 would be implicated. Article 1736 states that all issues for which a jury trial has been requested shall be tried by a jury in a single trial, “unless the parties stipulate that the jury trial shall be as to certain issues only ....” A settlement of the maintenance and cure claims would have been the equivalent of a stipulation by the parties that those issues were not to be tried by a jury (or indeed, by anyone). An analogous situation might be presented if a plaintiffs claims against a single defendant arose out of a single set of operative facts and included allegations of breach of contract and negligence. If the breach of contract claims were settled prior to trial and the value of the remaining claims against that defendant did not exceed $50,000, there would be no right to a jury trial. However, if the defendant had insisted on its right to a jury trial on all issues, but the court impermissibly severed some of the claims, the plaintiffs stipulation as to the value of the remaining claims could not be used, in combination with the impermissible severance, to foreclose the defendant’s right to a jury trial.

As we noted in Spencer I, this court’s conclusion in that appeal necessarily interdicts the trial court’s action in this appeal. Therefore, the judgment in this appeal must also be reversed and this case remanded.

CONCLUSION

Considering the foregoing, the judgment is reversed, and this case is remanded for further proceedings. All costs of this appeal are assessed to Spencer.

REVERSED AND REMANDED.

      . The provisions of Article 1562 are not applicable to this case.

      . We recognize that Spencer's stipulation as to the remaining value of her claims was predicated upon the trial court’s earlier judgment, which included some compensatory damages on the maintenance and cure claims. Because, as the Supreme Court noted in Fitzgerald, there is some potential overlap in. the damages available in the various admiralty claims, Spencer is free to re-evaluate the total value of her claims against DOTD and is not bound by that stipulation.

      . We express no opinion as to the merits of Spencer’s claims.


author: _[¿FOIL, J. | FITZSIMMONS, Judge,

text:
    Garnett A. BROWN, Reginald D. Brown, Chadwick L. Williams,and Corey A. Williams v. ASCENSION PARISH, Ascension Parish School Board, and East Ascension Parish High School.
    Nos. 2003 CA 1279, 2003 CA 1280.
    Court of Appeal of Louisiana, First Circuit.
    Aug. 18, 2004.

      Stanley Davis, III, Baton Rouge, Daria Burgess Diaz, New Orleans, Counsel for Plaintiffs/Appellants Garnett A. Brown, et al.
    Gus A. Fritchie, III, Bennett H. Biever, New Orleans, Counsel for Defendants/Appellants Ascension Parish Police Jury and Coregis Insurance Company.
    Benjamin C. Vega, Jr., Donaldsonville, Counsel for Defendant/Appellee Janice Claiborne.

      Marvin Gros, Donaldsonville, Counsel for Defendant/Appellee Tilicius Irvin.
    Before: CARTER, C.J., FOIL, FITZSIMMONS, GAIDRY and MCDONALD, JJ.
   _[¿FOIL, J.

Ascension Parish Police Jury and Core-gis Insurance Company (Parish) appeal a trial court judgment that assessed the Parish with 10% fault for the fatal shooting of Yalmond “J.B.” Brown, III (J.B.) by Tilici-us Irving (Tilicius). Following our review of the record and relevant law, we reverse.

On the evening of May 8, 1996, the Ascension Parish Darrow Community Center (Center) was rented for a high school graduation party. During the party, a physical fight erupted inside the Center shortly before midnight. After the fight had subsided and the participants had gone outside of the building, Tilicius Irving shot and killed J.B.

J.B.’s wife, Shanira Lynn Brown (Lynn), individually and on behalf of Lynn’s minor daughter Dominique Brown (Dominique), brought a civil action against the Parish for the harm suffered by the plaintiffs as a result of J.B.’s death. The case was subsequently consolidated with a lawsuit that had been previously initiated by Garnett A. Brown, Reginald D. Brown, Chadwick L. Williams, Corey A. Williams, Calvin Lewis, and Ruthie Lewis. The plaintiffs alleged that the Parish had knowledge that violent altercations such as the fight and subsequent shooting could occur during the party, and theorized that the Parish therefore owed a duty to provide adequate supervision or security for the party.

The trial court found the Parish liable under two theories. First, the court concluded that the director of the Center, Ms. Annette Williams, had knowledge that there was a possibility of danger based on the history of criminal activity at the Center, and because of the Center’s violent history, the Parish should have required at least minimal security for the party. The court found that Ms. Williams knew that there were troublemakers on the premises and should have warned the police |3of the fight as soon as it erupted. Her failure to notify the police in a timely manner of the fight, the court concluded, rendered the parish at fault for the shooting death.

The court awarded wrongful death damages to Lynn in the sum of $250,000.00. J.B. and Lynn’s daughter, Dominique, was awarded $200,000.00 for wrongful death damages. Additionally, damages for loss of services and support were established at $40,000.00, and survival damages of $85,000.00 were awarded. J.B.’s brothers were awarded LeJeune damages in the following sums: Reginald was granted $50,000.00; Garnett, Chadwick, and Corey were each given the sum of $10,000.00.

BREACH OF DUTY BY ASCENSION PARISH

On appeal, the Parish, defendant/appellant, assigns as error the trial court’s finding that it owed and breached a duty to provide security on the night J.B. was shot. In their answer to the appeal, plaintiffs/2nd appellants, assign as error the court’s failure to assign a higher degree of fault to the Parish than 10%.

The trial court’s allocation of 10% fault to the Parish centered on the failure of the Parish to exercise reasonable care to protect against the violence that ensued. Attribution of fault against the Parish pursuant to La. C.C. art. 2315 entails a duty-risk analysis. Henry v. Parish of Jefferson, Department of Parks and Recreation, 02-748, p. 4 (La.App. 5 Cir. 12/30/02), 835 So.2d 912, 914. The existence vel non of a duty owed poses a question of law. Peterson v. Gibraltar Savings & Loan, 98-1601, 98-1609, p. 7 (La.5/18/99), 733 So.2d 1198, 1204.

The law recognizes that a property owner has a general duty relative to the safety of persons on his premises to exercise reasonable care and not to expose such persons to unreasonable risks of injury or harm. Mundy v. Department of Health & Human Resources, 620 So.2d 811, 813 (La.1993). However, this duty does not extend to the protection of persons on the premises from unforeseen 14or unanticipated criminal acts of third persons. Id. Determining when a crime is foreseeable is a critical inquiry in the duty equation, because it is the foreseeability of the crime on the defendant’s property and the gravity of the risk that determine the existence and extent of the defendant’s duty. Pinsonneault v. Merchants & Farmers Bank & Trust Company, 01-2217, p. 7 (La.4/3/02), 816 So.2d 270, 276. In making this determination, the most important factor to be considered is the existence, frequency and similarity of prior incidents of crime on the premises, although the location, nature and condition of the property should also be taken into account. As the supreme court stated in Pinsonneault, “[i]t is highly unlikely that a crime risk will be sufficiently foreseeable for the imposition of a duty to provide security guards if there have not been previous instances of crime on the business’ premises.” Id.

In this case, the trial court held that the Parish had a duty to provide security for the graduation party. In order to impose this duty on the Parish, the trial court had to find at a minimum that the evidence established the risk of a fatal shooting during an event held at the Center was foreseeable. However, the record does not support the trial court’s conclusion that there was a high probability of criminal activity at the Center sufficient to impose a duty to provide security for the party. Although Ms. Williams stated that she had heard gunshots in the area on other occasions, there was no evidence of a prior shooting during an event held at the Center. Deputy Tyson Dennis, who patrolled the area for over a year and a half before the shooting, attested that he could not recall one other shooting at the Center. Plaintiff offered evidence indicating that there had been a few thefts and one act of vandalism at the Center. Because the evidence did not establish that there was a history of criminal activity sufficient to place the Parish on notice that a shooting might occur on the premises, the trial court imposition’s of a duty on the Parish to provide security for the party is legally erroneous and must be reversed.

| ¡/The trial court also found that the Parish was at fault in the shooting death because Ms. Williams failed to inform the police of the fight in a timely manner. However, we find that if there was a duty to inform the police of the fight prior to the fatal shooting, that duty rested with those who leased the premises, not Ms. Williams. The record reflects that the Center was leased by Janice and/or Nyok-ee Claiborne for a graduation party for Janice’s son. Ms. Williams was warned by Officer Dennis, whom she asked to patrol the Center that evening, that there were some suspicious persons on the premises and a fight may ensue. Ms. Williams told Officer Dennis that the premises had been leased to the Claibornes, and Officer Dennis apprised Janice Claiborne of the possibility of a fight. According to Officer Dennis, Ms. Claiborne replied that she just wanted everyone there to have a good time. The Claibornes, as lessees of the premises, were in control of the Center at the time of the fight and subsequent shooting. The lessees were responsible for crowd control, and the lessees should have apprised the police of the brawl when it first started. Thus, we find that the trial court committed legal error in imposing a duty on the property owner to alert the authorities of a fight occurring at the leased premises prior to the fatal shooting.

CONCLUSION

For the foregoing reasons, we reverse the trial court’s finding of liability on the part of the Parish for the shooting death. As such, we pretermit discussion of all other issues raised in this appeal regarding damages. All costs of this appeal are assessed to plaintiffs, Garnett A. Brown, Reginald D. Brown, Chadwick L. Williams, Corey A. Williams, Calvin Lewis and Ruthie Lewis.

REVERSED.

GAIDRY, J., dissents.

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

| FITZSIMMONS, Judge,

dissenting, in part, with reasons.

I respectfully dissent, in part, from this court’s reversal of liability on the part of Ascension Parish Police Jury and Coregis Insurance Company (Parish). The majority decision correctly concludes that the trial court legally erred in ascribing liability to the Parish on the basis that Ms. Williams, an employee of the Parish, had been previously warned that violence might occur. Given the lack of evidence of prior shooting incidents at the Center, Ms. Williams had not been placed on notice that a shooting might occur on the premises. However, I would affirm, as amended hereinafter, the judgment against the Parish on the basis of Ms. Williams’ failure “to inform the police of the fight in a timely manner.”

On the evening of the shooting, Officer Tyson Dennis forewarned Ms. Williams during his regular rounds of the probability of a fight between the two antagonistic groups that had assembled. Prior to midnight, a skirmish erupted inside the Center. Shawn Landry, the disc jockey at the Center, estimated that the fight continued for forty-five minutes. As the fight materialized into a brawl, it began to cause damage to Mr. Landry’s equipment. Mr. Landry stated that he ultimately pushed the participants out the door. Approximately fifteen minutes after the combatants went outside, Mr. Landry said he heard two gunshots.

Ms. Williams testified that during the evening she primarily stayed in her office inside of the Center, but she went in and out of it frequently. At one point upon exiting the office, she realized there was a problem in the main part of the building, and she was apprised of the ongoing fight by Mr. Landry. Ms. Williams called the police. Ms. | ¡Williams additionally testified that she had heard gunshots about twenty minutes prior to the shooting of J.B. Brown.

Deputy Drew Smith testified that the first telephone call reporting a fight was received at 12:10 a.m. Another officer, Deputy Dennis, indicated that he was dispatched to the Center between 11:47 p.m., when the fight was reported, and again at 12:14 a.m., when the sheriffs department was notified of the shooting.

Although testimony differed on the exact delay, the shooting appears to have occurred outside of the building approximately fifteen minutes after the fight inside had been disrupted and the participants had been told to leave. Ms. Williams had been forewarned that the two disparate groups might fight that evening. She also testified that prior fights had occurred; yet, she claims to have been totally unaware of any physical mayhem occurring within the main part of the building of the Center for thirty minutes, or longer. Given this factual setting and the lengthy delays, it is respectfully offered that the trial court did not manifestly err in attributing a portion of fault to Ascension Parish.

LESSEE FAULT

The majority decision theoretically acknowledges the potential existence of fault on the part of the non-party lessee (or lessees) of the Center. Allocation of comparative negligence is a factual matter within the sound discretion of the trial court that should not be disturbed absent manifest error. Thornhill v. State, Department of Transportation and Development, 95-1946, 95-1950, 95-1949, 95-1948, 95-1947, p. 17 (La.App. 1 Cir. 6/28/96), 676 So.2d 799, 810, writs denied, 96-2014 and 96-2021 (La.11/8/96), 683 So.2d 272. Irrespective of any ambivalence in the record as to whether Janice and/or Nyokee Claiborne were the individuals who participated in the written lease agreement, it is not disputed that the premises were being leased by one or more of the Claiborne family for a graduation party for Janice’s son. The Claibornes had also leased the Center on another occasion. Nyokee Claiborne testified that, in addition to Janice and herself, there were five adults assisting at the party. The |sfailure of Nyokee and/or Janice or any of the chaperones to report the occurrence of a brawl when it first started or to take any measure to bring the situation under control constitutes negligence on the part of the lessee.

The trial court’s manifest error in failing to assess any comparative fault to the lessee, who was in control of the leased premises at the time of the fight and subsequent shooting by Tilicuis Irving should not, however, obviate Ms. Williams’ separate legal duty on behalf of the Parish. The trial court correctly found a breach on the part of the Parish in its concluding remarks, to wit: “Ms. Williams failed to inform the police of the fight in a timely manner. Therefore, Ascension Parish breached its duty.”

In sum, it is respectfully submitted that the trial court judgment should have been affirmed, as amended, to ascribe five percent fault against Ascension Parish Police Jury and Coregis Insurance Company for Ms. Williams’ failure to inform the police of the brawl inside the Parish building and the potential danger within a reasonable time, notwithstanding her presence in the Center and her proximity to the activities. The lessee(s) should have been assessed five percent of the fault, and the ninety percent fault assessed against Tilicuis Irving should have been affirmed.

      . "Tilicius Brown” is also referred to as "Tili-cus Brown” and as "Tilicuous Brown” in the record.

      . Subsequent to the initiation of the suit, Lynn and Dominique Brown were murdered in an unrelated crime.

        .Shanira Lewis Brown, et al. v. Parish of Ascension, Recreation Department, suit number 60,035, was consolidated on August 26, 1997 with Garnett Brown, et al. v. Ascension Parish, et al., suit number 60,029.

      . Trial court written reasons for judgment.

      . Ms. Williams recalled only one prior incident years earlier in which she had heard gunshots; however, she did not know the exact location of the prior gunfire or if the previous incident had involved participants from the Center.

      . Trial court written reasons for judgment.


author: J^KUHN, J.

text:
    FORUM FOR EQUALITY PAC, a Registered Louisiana Political Action Committee, Laurence E. Best, Jeanne M. LeBlanc, and William A. Schultz v. CITY OF NEW ORLEANS and The Honorable W. Fox McKeithen, in His Official Capacity as Secretary of State of Louisiana Only, and Not Individually.
    No. 2004 CE 1842.
    Court of Appeal of Louisiana, First Circuit.
    Aug. 23, 2004.
    John D. Rawls, Regina O. Matthews, Kenneth Randall Evans, New Orleans, Counsel for Plaintiffs/Appellants, Forum for Equality PAC, Laurence E. Best, Jeanne M. LeBlanc, and William A. Schultz.
    Sherry S. Landry, New Orleans, Counsel for Defendant/Appellee, City of New Orleans.
    Charles C. Foti, Jr., Thomas S. Halligan, Roy A. Mongrue, Jr., Angie Rogers La-Place, Baton Rouge, Counsel for Defendant/Appellee, W. Fox McKeithen, Secretary of State.
    Before: PARRO, KUHN, DOWNING, McDonald, and McClendon, jj.
   J^KUHN, J.

Plaintiffs, Forum for Equality PAC, a registered Louisiana political action committee, Laurence E. Best, Jeanne M. Le-Blanc, and William A. Schultz, filed suit in the Nineteenth Judicial District Court, Parish of East Baton Rouge, against defendants, the City of New Orleans and W. Fox McKeithen, in his official capacity as Secretary of State of Louisiana. Plaintiffs’ suit seeks to prevent a proposed constitutional amendment from appearing on the ballot before the electorate on September 18, 2004. Upon finding that the suit was prematurely filed, the trial court sustained McKeithen’s dilatory exception of prematurity and dismissed plaintiffs’ suit without prejudice. Plaintiffs have appealed, and for the following reasons, we affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

Pursuant to Acts 2004, No. 926 (“Act No. 926”) the legislature resolved that a proposed constitutional amendment shall be submitted to the electors of the state of Louisiana at the statewide election to be held on September 18, 2004, for either approval or rejection. According to Section 1 of Act No. 926, the proposal is to add Article XII, Section 15 to the Constitution of Louisiana, which is to read as follows:

§ 15. Defense of Marriage
Section 15. Marriage in the state of Louisiana shall consist only of the union of one man and one woman. No official or court of the state of Louisiana shall construe this constitution or any state law to require that marriage or the legal incidents thereof be conferred upon any member of a union other than the union of one man and one woman. A legal status identical or substantially similar to that of marriage for [4unmarried individuals shall not be valid or recognized. No official or court of the state of Louisiana shall recognize any marriage contracted in any other jurisdiction which is not the union of one man and one woman.

The legislature further resolved pursuant to Act No. 926 that there shall be placed on the official ballot at the September 18, 2004 statewide election a proposition, upon which

[T]he electors of the state shall be permitted to vote FOR or AGAINST, to amend the Constitution of Louisiana, which proposition shall read as follows: To provide that marriage in this state shall consist of the union of one man and one woman, that legal incidents of marriage shall not be conferred on a member of any union other than such union, and that the state shall not validate or recognize a legal status identical or substantially similar to that of marriage for unmarried individuals or any marriage contracted in any other jurisdiction which is not the union of one man and one woman. (Adds Article XII, Section 15)

Act No. 926, Section 3.

Plaintiffs filed this suit under the Louisiana Election Code seeking to prevent ratification of the proposed constitutional amendment. McKeithen responded by filing the dilatory exception of prematurity. La. C.C.P. art. 926. In support of his exception, McKeithen submitted the following argument:

The Election Code only authorizes an action challenging a proposed constitutional amendment within ten days after the promulgation of the results by the Secretary of State. R.S. 18:1405(0). Since the election has yet to occur and therefore the results have not yet been promulgated, the plaintiffs’ action is premature under the Election Code, as there is no authority in the law to challenge a proposed constitutional amendment prior to the election.

| ¡¿By judgment dated August 17, 2004, the trial court sustained McKeithen’s exception of prematurity and dismissed plaintiffs’ petition without prejudice.

II. ANALYSIS

Because the facts are not in dispute with respect to this appeal, we address only legal issues regarding whether the trial court properly interpreted the applicable provisions of the Louisiana Election Code. Appellate review of questions of law is a review of whether the trial court was legally correct. On legal issues, the appellate court gives no special weight to the findings of the trial court, but exercises its constitutional duty to review questions of law and render judgment on the record. Bridges v. Smith, 01-2166 (La.App. 1 Cir. 9/27/02), 832 So.2d 307, 310.

A suit is premature if it is brought before the right to enforce the claim has accrued. See La. C.C.P. art. 423. The exception raising the objection of prematurity advances the issue of whether the cause of action has yet come into existence because some prerequisite condition has not been fulfilled. Bridges, 832 So.2d at 310. The exception contemplates that the action taken by the petitioner has occurred prior to some procedure or assigned time. Bridges, 832 So.2d at 310.

The party seeking relief under the Election Code must bring himself within the strict provisions of the law governing election suits. See Folse v. Lafourche Democratic Committee, 160 So.2d 363, 364 (La.App. 1 Cir.1964). Louisiana Revised Statutes 18:1405 C states:

An action contesting an election on a proposed constitutional amendment shall be instituted within ten days after | ^promulgation of the results of the election by the secretary of state, (emphasis supplied)

There is no provision in the Louisiana Election Code for a pre-election challenge to the placement of a proposed constitutional amendment on a ballot. Plaintiffs have filed suit, seeking relief under the Louisiana Election Code, prior to the time assigned for institution of their complaint. Accordingly, the trial court properly concluded that plaintiffs’ suit was premature.

III. CONCLUSION

Therefore, the trial court’s judgment, which sustained the dilatory exception of prematurity filed by defendani/appellee, W. Fox McKeithen, and dismissed without prejudice the suit filed by plaintiffs/appel-lees, is affirmed. Costs of this appeal are assessed against plaintiffs/appellees, Forum for Equality PAC, Laurence E. Best, Jeanne M. LeBlanc, and William A. Schultz.

AFFIRMED.

DOWNING, J., concurs.

      . "An action contesting an election upon a proposed constitutional amendment shall be brought in the district court for the parish where the state capítol is situated." La. R.S. 18:1404 C.

      . Again, we emphasize that an action contesting an election upon a proposed constitutional amendment shall be brought in the district court for the parish where the state capítol is situated. La. R.S. 18:1404 C.