author: I .PETTIGREW, J.

text:
    Yoram RAZ Praying for Monition. Sondra H. Marshak and Bankers Trust Company v. Yoram Raz and Sheriff Elmer Litchfield.
    No. 2003 CA 0893.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 23, 2004.
    Rehearing Denied May 19, 2004.

      Yoram Raz, Castor, in Proper Person.
    David M. Cohn, Baton Rouge, for Plaintiffs-Appellees Sondra H. Marshak and Bankers Trust Company.
    Leu Anne Lester Greco, Baton Rouge, for DefendanLAppellee Sheriff Elmer Litchfield.

      Before: PETTIGREW, DOWNING, and McClendon, jj.
   I .PETTIGREW, J.

In these consolidated actions, purchaser of property at tax sale appeals from the trial court’s grant of summary judgment in favor of out-of-state taxpayer and mortgage holder that annulled the underlying judgment of monition as well as the earlier tax sale. For the reasons that follow, we hereby affirm.

FACTS

Yoram Raz (“Mr.Raz”) purchased Lot 106 in Kenilworth Subdivision at a tax sale held by the Sheriff of East Baton Rouge Parish, Louisiana, on June 27, 1997. Said property (“subject property”) bore a municipal address of 946 Kenilworth Parkway, Baton Rouge, Louisiana. In the three-year redemption period following the sale, the subject property was not redeemed, and Mr. Raz continued to pay the property taxes for each of the following three years — 1997, 1998, and 1999. On July 26, 2000, Mr. Raz filed a Petition for Monition in the Nineteenth Judicial District wherein he sought to confirm and homologate his acquisition of the subject property. A notice of publication was filed on August 29, 2000, attesting to the fact that a public notice of the monition was published in “The Advocate” newspaper on August 4, 2000 and August 25, 2000. There being no opposition to the monition proceeding, a default judgment confirming and homologating the sale of the subject property was entered by the duty judge and signed on September 18, 2000.

On October 20, 2000, Sondra H. Mars-hak (“Ms.Marshak”), the registered owner of the subject property, filed a separate action in the Nineteenth Judicial District and named Mr. Raz and East Baton Rouge Parish Sheriff Elmer Litchfield as defendants therein. Through this action, Ms. Marshak, now a California domiciliary, claimed that she had been unaware of the monition proceeding, and petitioned to annul the tax sale and restore her possession of the subject property based upon the allegation that she did not receive a tax notice in 1996. Ms. Marshak further sought issuance of a preliminary injunction to restore her possession of the subject property and further enjoin Mr. Raz from taking |3action as owner of the subject property during the pendency of these proceedings. This action was entitled Sondra H. Marshak v. Yoram Raz and Sheriff Elmer Litchfield and was assigned Docket # 477,454-J of the Nineteenth Judicial District Court. On November 16, 2000, Mr. Raz responded by filing a peremptory exception raising the objection of res judicata. Bankers Trust Company (“Bankers Trust”), the holder of a mortgage affecting the subject property, filed an amended petition on December 6, 2000, and enrolled as an additional plaintiff in this matter.

Also, on November 16, 2000, Ms. Mars-hak timely filed a devolutive appeal of the judgment in the monition proceeding. This appeal was designated 2001-CA-0014. Later, on December 14, 2000, Ms. Mars-hak and Bankers Trust Company filed a Petition to Nullify Judgment on Monition in the district court under the same docket number of the matter appealed. Pursuant to an order dated January 22, 2001, the Louisiana First Circuit Court of Appeal issued an order staying consideration of Ms. Marshak’s appeal pending a determination by the Nineteenth Judicial District Court in the separate action instituted by Ms. Marshak against Yoram Raz and Sheriff Elmer Litchfield, as well as a determination of the Petition to Nullify Judgment on Monition subsequently filed in the district court under the docket number of the matter appealed. On February 5, 2001, Mr. Raz filed a similar peremptory exception raising the objection of res judi-cata.

Following a hearing held on April 2-3, 2001, the trial court relied upon the original monition judgment rendered in docket # 474,705-1 and upheld the exception as to res judicata filed by Mr. Raz in suit # 477,454-J. A judgment dismissing the claims of Ms. Marshak and Bankers Trust in suit number 477,454-J was signed on April 26, 2001. (R-37) The judgment upholding the exception was not appealed by Ms. Marshak and Banker’s Trust. Ms. Marshak and Bankers Trust nevertheless filed a timely Motion for New Trial on May 4, 2001; however, this motion was never heard. (R-173)

| ¿Upon motion of Ms. Marshak and Bankers Trust, and following a hearing held on June 25, 2001, the case entitled Sondra H. Marshak v. Yoram Raz and Sheriff Elmer Litchfield and bearing docket # 477,454-J, was consolidated into the earlier case entitled Yoram Raz Praying for Monition bearing docket # 474,705-1.

Thereafter, numerous motions were filed by both sides in the consolidated matters. On January 27, 2003, Division I of the trial court granted summary judgment in favor of Ms. Marshak and Bankers Trust and denied the cross motion for summary judgment brought by Mr. Raz. In granting summary judgment in favor of Ms. Mars-hak and Bankers Trust, the trial court nullified the underlying tax sale due to the failure to notify any mortgagee of the tax delinquency, the tax, the pending tax sale, or the outcome of the tax sale. Additionally, the trial court nullified the previously rendered judgment of monition. A judgment to this effect was signed on February 27, 2003. From this judgment, Mr. Raz has appealed.

ASSIGNMENT OF ERRORS

In connection with his appeal in this matter, Mr. Raz asserts that the trial court erred with respect to the following:

1. In annulling not only the judgment of monition, but also the underlying tax sale;
2. In annulling the tax sale based upon lack of notice to the mortgagee; and
3. In annulling the judgment of monition rendered by the duty judge.

SUMMARY JUDGMENT

A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine issue of material fact. Johnson v. Evan Hall Sugar Coop., Inc., 2001-2956, p. 3 (La.App. 1 Cir. 12/30/02), 836 So.2d 484, 486. Summary judgment is properly granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of ^material fact, and that mover is entitled to judgment as a matter of law. La.Code Civ. P. art. 966(B). Summary judgment is favored and is designed to secure the just, speedy, and inexpensive determination of every action. La.Code Civ. P. art. 966(A)(2); Thomas v. Fina Oil and Chemical Co., 2002-0338, pp. 4-5 (La.App. 1 Cir. 2/14/03), 845 So.2d 498, 501-502.

On a motion for summary judgment, the burden of proof is on the mover. If, however, the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require that all essential elements of the adverse party’s claim, action, or defense be negated. Instead the mover must point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, the adverse party must produce factual evidence sufficient to establish that he will be able to satisfy his evidentia-ry burden of proof at trial. If the adverse party fails to meet this burden, there is no genuine issue of material fact, and the mover is entitled to summary judgment. La.Code Civ. P. art. 966(C)(2); Robles v. ExxonMobile, 2002-0854, p. 4 (La.App. 1 Cir. 3/28/03), 844 So.2d 339, 341.

In determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria that govern the trial court’s determination of whether summary judgment is appropriate. Allen v. State ex rel. Ernest N. Morial New Orleans Exhibition Hall Authority, 2002-1072, p. 5 (La.4/9/03), 842 So.2d 373, 377. Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to this case. Foreman v. Danos and Curole Marine Contractors, Inc., 97-2038, p. 7 (La.App. 1 Cir. 9/25/98), 722 So.2d 1, 4, writ denied, 98-2703 (La.12/18/98), 734 So.2d 637.

DISCUSSION

In his initial assignment of error, Mr. Raz contends that the underlying tax deed that he received from the sheriff is good and valid, even if the monition judgment is set aside. Mr. Raz relies upon La. R.S. 13:4947 as authority for the proposition that the trial | ficourt’s judgment confirming and homologating the sale was not subject to attack. Ms. Marshak and Bankers Trust argue that the prescriptive periods enumerated in La. R.S. 47:2228 are controlling, and that Mr. Raz’s action in monition was premature.

Monition is a procedure by which purchasers of property at sheriffs’ sales and other sales “made by the authority of justice” may protect themselves from eviction of the property so purchased, or from any responsibility as possessors. La. R.S. 13:4941. The purpose of monition is to confirm or homologate the judicial sale by showing that the sale was properly advertised, the property was correctly described, and the price was actually paid. La. R.S. 13:4945. The judgment of the court confirming and homologating the sale has the force of res judicata. La. R.S. 13:4947. However, a monition judgment cannot cure an absolute nullity. Hubbs v. Canova, 401 So.2d 962, 964 (La.1981). An absolutely null judgment is not res judica-ta and may be collaterally attacked. Corcoran v. Gauthier, 97-0516, p. 6 (La.App. 4 Cir. 1/7/98), 705 So.2d 1233, 1236, writ denied, 98-0342 (La.3/27/98), 716 So.2d 888; see also LaBove v. Theriot, 597 So.2d 1007, 1011 (La.1992).

The procedure for quieting tax titles is set forth in La. R.S. 47:2228, which provides:

After the lapse of three years from the date of recording the tax deed in the conveyance records of the parish where such property is situated, the purchaser, his heirs or assigns, may institute suit by petition and citation as in ordinary actions against the former proprietor or proprietors of the property, in which petition must appear a description of the property, mention of the time and place of the sale and name of officer who made same, reference to page of record book and date of recording tax deed, notice that petitioner is owner of the said property by virtue of said tax sale, and notice that the title will be confirmed unless a proceeding to annul is instituted within six months from date of service of the petition and citation. This suit shall be brought in the parish where the property is situated unless it lies in two or more parishes, in which case this suit may be instituted in either of such parishes. The petition and citation shall be served as in ordinary suits; provided, that if the former proprietor be a nonresident of the state, or unknown, or his residence be unknown, the court shall appoint a curator ad hoc to represent him and receive service, and said curator shall receive for his services a reasonable fee to be fixed by the court in each suit, the same to be taxed as costs of suit. After the lapse of six months from the date of service of petition and citation, if no proceeding to annul the sale has been instituted, judgment shall be rendered quieting and confirming the title.
|7In all cases where tax titles have been quieted by prescription of five years under the provisions of Section 25 of Article VII of the Constitution of 1974, the purchaser or his heirs or assigns may, if he or they so desire, either obtain a judgment of the court confirming the title by suit in the manner and form as hereinabove set out, except that the delay for answer shall be ten days instead of'six months, or the purchaser or his heirs or assigns may, at his or their option, quiet the title by monition proceeding, as provided by law relative to sheriffs’ sales and tax sales; provided that the failure to bring suit shall in no manner affect such prescriptive titles.
Nothing in this Section shall be construed to affect in any way, the principle that as to a tax debtor-owner in possession, prescription does not begin against him and in favor of the tax title purchaser until such tax debtor-owner has been first dispossessed.

It is undisputed that Mr. Raz filed his monition proceeding approximately three years after obtaining title to the property. Pursuant to the foregoing statutory provisions, any action to quiet tax title brought between three and five years of receipt of title must be brought by ordinary proceeding in the parish where the property is situated and served with citation upon the former proprietor or proprietors. The petition must contain a description of the property, mention of the time and place of the sale, the name of the officer conducting the sale, a reference to page of record book and date of the tax deed was recorded, a notice that petitioner is now the owner of the said property by virtue of said tax sale, and a notice that the title will be confirmed unless a proceeding to annul is instituted within six months from date of service of the petition and citation. The statute further provides that if the former proprietor is not a Louisiana resident, or if the proprietor’s whereabouts are unknown, a curator ad hoc shall be appointed by the court to receive service on behalf of the former proprietor. This was not done by Mr. Raz.

Mr. Raz instead relies upon La. R.S. 13:4947, which provides as follows:

The judgment of the court, confirming and homologating the sale, shall have the force of res judicata, and operate as a complete bar against all persons, whether of age or minors, whether present or absent, who may thereafter claim the property sold, in consequence of all illegality or informality in the proceeding, whether before or after judgment. The judgment of homologation shall in all cases be received and considered as full and conclusive proof that the sale was duly made according to law, in virtue of a judgment or order legally and regularly pronounced on the interest of parties duly represented.
Additionally, La. R.S. 13:4951 provides:
The provisions of R.S. 13:4950 shall be extended to tax sales; provided, that such tax sales are made and recorded at least three years | ^previous to the application for monition. The effect of such proceedings and the judgment rendered therein shall be to confirm the tax sale and to cure all nullities therein, in like manner, and with the same effect as if the proceedings had been had under, and in accordance with, R.S. 47:2228.

The obvious conflict regarding the delay period for obtaining a grant of monition and a judgment to quiet a tax title was addressed by the third circuit in its opinion in Gunter v. Moore, 2002-1126 (La.App. 3 Cir. 2/5/03), 838 So.2d 118. In Gunter, the third circuit opined:

In reviewing the history of our Constitution and these statutes, we find an explanation for this inconsistency. Under the Louisiana Constitution of 1898, monition proceedings became inapplicable to tax sales, and the Constitution, itself, provided the exclusive procedure for quieting tax titles. The Constitution of 1921 stated that “[t]he manner and notice of form and proceeding to quiet tax titles shall be provided by law,” making the statute, regarding monition procedures, applicable again. However, the 1921 Constitution allowed a one-year redemption period and a three-year prescription period. Therefore, at that time, the three-year period for the monition petition would have coincided with the prescriptive period, rather than the redemption period. Thereafter, in 1932, the Constitution was amended to the current three-year and five-year periods. Therefore, when La. R.S. 47:2228, the procedure to quiet tax titles, was enacted in 1934, the Constitution had already been amended to reflect the three-year and five-year time periods, and the legislature drafted the statute to reflect them.
Additionally, in La. R.S. 47:2228, the legislature permitted a purchaser to elect to bring a monition proceeding instead of the action to quiet tax titles “[i]n all cases where tax titles have been quieted by prescription of five years under the provisions of Section 11 of Article X of the Constitution of 1921.” This coincides with the prescriptive period under the Constitution. In 1978, the statute was amended to reflect the change in the Constitutional provisions from this section to “Section 25 of Article VII of the Constitution of 1974;” however, neither this amendment nor the 1974 Constitution altered the time periods, in question; nor did either reflect any substantive changes that are relative to our analysis in this case.
Accordingly, we find that the history of this statutory scheme reveals that the legislature intended that the delay for bringing a monition proceeding, as an alternative to a suit to quiet tax titles, should coincide with the five-year prescriptive, as opposed to the three-year redemption period; and La. R.S. 13:4951, simply, was never amended to reflect the prescriptive period after it had been amended in the Constitution.
Additionally, we must presume that the legislature intends to achieve a consistent body of law. Therefore, the only logical explanation is that the legislature meant for the monition proceeding to be available as an alternative to quieting a tax title, only, after the prescriptive period has passed. Moreover, La. R.S. 47:2228, providing for the five-year delay period for monition proceedings, was enacted after La. R.S. 13:4951. Thus, La. R.S. 47:2228 supersedes La. R.S. 13:4951. When two statutes are so blatantly contradictory, as these two, the later statute must govern.

| jGunter, 2002-1126 at 5-6, 838 So.2d at 122-23 (footnotes omitted).

We agree, and adopt the reasoning of the third circuit. The trial court did not err in declaring null both the judgment of monition and the tax sales in this regard. This assignment of error is without merit.

In connection with his second assignment of error, Mr. Raz cites La. R.S. 47:2180.1(B)(2) as authority for his contention that a lack of notice to the mortgagee is not sufficient grounds to annul a tax sale. Louisiana Revised Statute 47:2180.1 provides for notice to the mortgagee; however, paragraph (B)(2) states, “Notwithstanding any other law to the contrary, a tax sale shall not be annulled or set aside due to lack of notice to the mortgagee as provided herein.”

In response, Ms. Marshak and Bankers Trust cite this court’s holding in Bank of West Baton Rouge v. Stewart, 2000-0114 (La.App. 1 Cir. 2/16/01), 808 So.2d 464. In Bank of West Baton Rouge, the bank held a properly recorded mortgage on a piece of immovable property that was sold at tax sale. The owners of the property had received prior notice of the sale, but the bank did not. The bank received actual notice more than three years after the sheriffs auction and filed suit to have the tax sale annulled. The trial court interpreted the statute and the tax sale to be constitutional and refused to annul the tax sale based upon the provisions of La. R.S. 47:2180.1. Bank of West Baton Rouge, 2000-0114 at 4, 808 So.2d at 466.

This court overturned the trial court’s ruling, citing Mennonite Board of Missions v. Adams, 462 U.S. 791, 798, 103 S.Ct. 2706, 2711, 77 L.Ed.2d 180 (1983), wherein the United States Supreme Court recognized the legally protected property interest of a mortgagee and its entitlement to notice of an impending tax sale. The Supreme Court stated that when “the mortgagee is identified in a mortgage that is publicly recorded, constructive notice by publication must be supplemented by notice mailed to the mortgagee’s last known available address, or by personal service.” Id.

In the instant case, Bankers Trust held a properly recorded mortgage from which its identity and address could be extracted following a review of the mortgage records of East Baton Rouge Parish. Despite the presence of the mortgage in the public records, the |insheriffs office made no attempt to notify Bankers Trust. Thus, the underlying tax sale is rendered an absolute nullity. This assignment of error is similarly without merit.

In his final assignment of error, Mr. Raz contends that the trial court judge lacked the authority to annul the judgment of monition entered by the duty judge. In support of this argument, Mr. Raz cites Appendix 3 of the Rules For Proceedings in District Courts, Family and Domestic Relations Courts, and Juvenile Courts, which provides that in the Nineteenth Judicial District, “Any motion to amend, vacate or nullify a final judgment, or for a new trial in a case heard by the Duty Judge upon confirmation of default shall be presented to and heard by the judge who signed the original default judgment.” The trial court denied Mr. Raz’s motion to transfer the matter to the duty judge because the local rule had recently been amended and did not exist in that form when this suit was initiated in 2000.

In his brief to this court, Mr. Raz contends that he received in from the Judicial Administrator of the Nineteenth Judicial District in September 2000, a copy of the prior rule that he now has in his possession. Said copy was not introduced into evidence; however, Mr. Raz claims that the prior rule read as follows:

Any motion to amend a final judgment or for a new trial a case heard by a Duty Judge upon confirmation of default shall be presented to and heard by the Duty Judge.

Even if this court were to accept the assertion contained in Mr. Raz’s brief as to the wording of the earlier rule, we note, and Ms. Marshak and Bankers Trust point out that motions to annul were not specifically listed. Thus, we must conclude that the trial judge did not err in retaining jurisdiction over the motion to annul the judgment of monition. This assignment of error is without merit.

CONCLUSION

For the above and foregoing reasons, the grant of summary judgment by the trial court nullifying the underlying tax sale and the judgment of monition is hereby affirmed. All costs associated with this appeal are assessed against defendant-appellant Yoram Raz.

AFFIRMED.

      . This proceeding was assigned Docket # 474,705-1 of the Nineteenth Judicial District Court.

      . This proceeding was assigned Docket # 477,454-J of the Nineteenth Judicial District Court.

      . It appears from the record that Mr. Raz also applied for a supervisory writ of review from this court that was not considered in light of his pending appeal. Sondra H. Marshak and Bankers Trust Company v. Yoram Raz, May 29, 2003, No.2003 CA 0893 c/w 2003 CA 0894.


source: Caselaw Access Project

author: J^PETTIGREW, J.

license: Public Domain

text:
    ALL STAR ADVERTISING AGENCY, INC. d/b/a All Star Automotive Group v. RELIANCE INSURANCE COMPANY, in Liquidation.
    No. 2003 CA 0891.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 23, 2004.
    Rehearing Denied May 19, 2004.

      Michael W. McKay, Baton Rouge, for Plaintiff-Appellant All Star Advertising Agency, Inc. d/b/a All Star Automotive Group.
    Ambrose v. McCall, New Orleans, for Defendantr-Appellee Reliance Insurance Company, in Liquidation.
    Before: PETTIGREW, DOWNING, and McClendon, jj.
   J^PETTIGREW, J.

Plaintiff appeals from the trial court’s judgment granting defendant’s exception raising the objection of lack of subject matter jurisdiction and dismissing plaintiffs suit. For the reasons that follow, we reverse and remand.

FACTS AND PROCEDURAL HISTORY

According to the record, defendant, Reliance Insurance Company (“Reliance”), is an insolvent corporation placed into liquidation pursuant to an Order of Liquidation entered by the Commonwealth Court of Pennsylvania on October 3, 2001, in Docket No. 269 M.D.2001, M. Diane Koken, Insurance Commissioner of the Commonwealth of Pennsylvania v. Reliance Insurance Company. The October 3, 2001 Order of Liquidation provides, in pertinent part, as follows:

2. Reliance is hereby found to be and is declared INSOLVENT, as that term is defined in 40 P.S. §§ 221.3, and as provided in 40 P.S. §§ 221.14(1) and 221.19.
3. Commissioner M. Diane Koken and her successors in office (the “Commissioner”) are hereby APPOINTED Liquidator of Reliance and the Liquidator or her designees (the “Liquidator”) are directed immediately to take possession of Reliance’s property, business and affairs as Liquidator, and to liquidate Reliance in accordance with Article V of the Insurance Department Act of 1921, as amended (40 P.S. §§ 211 et seq.)(the “Act”), and to take such action as the interest of the policyholders, creditors or the public may require.
5. The Commissioner, as Liquidator, is vested with title to all property, assets, contracts and rights of action (“assets”) of Reliance, of whatever nature and wherever located, whether held directly or indirectly, as of the date of the filing of the Petition for Liquidation. All assets of Reliance are herby found to be in custodia legis of this Court; and this Court specifically asserts, to the fullest extent of its authority, (a) in rem jurisdiction over all assets of the Company wherever they may be located and regardless of whether they are held in the name of the Company or any other name; (b) exclusive jurisdiction over all determinations of the validity and amount of claims against Reliance; and (c) exclusive jurisdiction over the determination of the distribution priority of all claims against Reliance.
22. Unless the Liquidator consents thereto in writing, no action at law or equity, or arbitration or mediation, shall be brought against Reliance or the Liquidator, whether in this Commonwealth or elsewhere, nor shall any such existing action be maintained or further prosecuted after the date of this Order. All actions, including arbitrations and medi-ations, currently pending against Reliance in the courts of the Commonwealth of | .^Pennsylvania or elsewhere are hereby stayed. All actions, arbitrations and mediations, against Reliance or the Liquidator shall be submitted and considered as claims in the liquidation proceeding.
24. No judgment or order against Reliance or its insureds entered after the date of filing of the Petition for Liquidation, and no judgment or order against Reliance entered at any time by default or by collusion, need be considered as evidence of liability or quantum of damages by the Liquidator.
25. No action or proceeding in the nature of an attachment, garnishment, or execution shall be commenced or maintained in this Commonwealth or elsewhere against Reliance or the Liquidator, or their assets.
26. All secured creditors or parties, pledges, lienholders, collateral holders or other person claiming secured, priority or preferred interests in any property or assets of Reliance are hereby enjoined from taking any steps whatsoever to transfer, sell, assign, encumber, attach, dispose of, or exercise, purported rights in or against any property or assets of Reliance except as provided in 40 P.S. § 221.43.

Prior to this Order of Liquidation, plaintiff, All Star Advertising Agency, Inc., d/b/a All Star Automotive Group (“All Star”), purchased policies of automobile liability coverage and workers’ compensation coverage from Reliance. As part of this agreement, All Star and Reliance entered into a Retrospective Premium Endorsement (“Premium Plan”) whereby All Star would pay an estimated standard premium that would be adjusted through audits, verified by a third party, and -presented to All Star for payment. To secure its obligation to Reliance, All Star established an Irrevocable Standby Letter of Credit with Bank One in the amount of $225,000.00.

Following a retrospective premium adjustment in May 2002, Reliance demanded payment of $415,428.00 as additional premiums due. On November 8, 2002, All Star filed a Petition For Temporary Restraining Order And For Rule For Preliminary Injunction against Reliance in the 19th Judicial District Court, Parish of East Baton Rouge, Louisiana, praying for the following relief:

I. A Temporary Restraining Order be issued immediately to Reliance ... restraining and prohibiting Reliance from drawing on the All Star ... irrevocable standby Letter of Credit ... until such time that is satisfied its obligation of the Premium Plan to provide All Star ... with the necessary supporting documentation to evaluate Reliance’s claim for additional premium and a reasonable time thereafter to do so;
Rll. Reliance ... be ordered to show cause at a date and time to be set by the court why a preliminary and then permanent injunction should not be issued enjoining Reliance ... from drawing on the irrevocable standby Letter of Credit ...; and
III. Plaintiff additionally seeks all general and equitable relief.

In response to All Star’s petition, Reliance filed an exception raising the objection of lack of subject matter jurisdiction and a Memorandum in Opposition to Petition for Injunctive Relief. At a January 13, 2003 hearing on Reliance’s exception, the trial court granted same, offering the following reasons for judgment:

The Court hereby finds that pursuant to the Order of Liquidation entered on October 3rd of 2001 in Pennsylvania, this Court lacks subject matter jurisdiction over the instant proceedings. The liquidation order must be given full faith and credit by this Court.

The court signed a judgment on January 27, 2003, granting the exception, dismissing AJI Star’s petition, and directing that any temporary restraining order previously entered in this matter be dissolved as of January 13, 2003. It is from this judgment that All Star has appealed, assigning error to the trial court’s finding of a lack of subject matter jurisdiction based on the October 3, 2001 Order of Liquidation.

STANDARD OF REVIEW

Because the facts are not in dispute with respect to this appeal, the issue is whether the trial court correctly interpreted and applied the law. Appellate review of questions of law is simply review of whether the trial court was legally correct or legally incorrect. 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 renders judgment on the record. Bridges v. Smith, 2001-2166, p. 4 (La.App. 1 Cir. 9/27/02), 832 So.2d 307, 310, writ denied, 2002-2951 (La.2/14/03), 836 So.2d 121.

DISCUSSION

An exception raising the objection of lack of subject matter jurisdiction is used to question the court’s power and authority to determine a particular class of actions. LaLCode Civ. P. art. 2. On appeal, All Star alleges the trial court erred in sustaining Reliance’s exception raising the objection of lack of subject matter jurisdiction. All Star contends that because it is “not asserting any claim for monetary damages against Reliance or any relief that would affect the legitimate corpus of Reliance’s assets,” the October 3, 2001 Order of Liquidation does not grant exclusive jurisdiction over this case to the Commonwealth Court of Pennsylvania. Following our review of the record herein, we agree that the trial court erred, but for reasons other than those argued by All Star.

In raising the objection below, Reliance argued that the 19th Judicial District Court lacked jurisdiction over this matter based on the provisions of the Uniform Insurers Liquidation Law as adopted in Louisiana, La. R.S. 22:758 through 22:763. Reliance maintained that Pennsylvania is a “reciprocal state” as defined by La. R.S. 22:757, and thus, the October 3, 2001 Order of Liquidation is entitled to full faith and credit in Louisiana. Moreover, Reliance asserted that La. R.S. 22:760 requires that when no ancillary receivership proceedings have been initiated in Louisiana, as is the case herein, residents of Louisiana must assert their claims in the proceedings of the domiciliary state of the foreign insurer — in this case, Pennsylvania.

As shown by the “Table of Jurisdictions Wherein Act Has Been Adopted” immediately following La. R.S. 22:757, Pennsylvania has not adopted the Uniform Insurers Liquidation Act and, thus, is not a reciprocal state. Accordingly, the provisions of the act are not applicable to this case and cannot operate to confer exclusive jurisdiction over All Star’s claims against Reliance in the Commonwealth Court of Pennsylvania. Moreover, although full faith and credit and the doctrine of comity might otherwise require that Louisiana still recognize the Pennsylvania Order of Liquidation, we are not required to do so if it will violate the positive law or public policy of our own state. Bonura v. United Bankers Life Insurance Company, 552 So.2d 1248, 1252 (La.App. 1 Cir.1989), writ denied, 558 So.2d 1125 (La.1990).

In Bonura, supra, Anthony G. Harris had been appointed temporary receiver in Texas for Bankers Life Insurance Company and filed an exception in the Louisiana court with respect to subject matter jurisdiction. The Texas Life Accident, Health, and | ^Hospital Service Insurance Guaranty Association also filed exceptions with respect to personal and subject matter jurisdiction. Noting that Texas was not a reciprocal state, this court concluded that the Uniform Insurers Liquidation Law, and specifically La. R.S. 22:760, could not be applied to prohibit Louisiana from exercising subject matter jurisdiction over the case. Bonura, 552 So.2d at 1251. Moreover, this court found other controlling provisions from the Louisiana Insurance Code in favor of Louisiana’s refusal to recognize the Texas court’s judgment requiring the claim to be litigated in Texas. Finding no error by the trial court in refusing to give full faith and credit to the Texas court judgment, we noted:

[T]wo other sections of the Insurance Code do apply to this situation. La.R.S. 22:629 provides that no insurance contract delivered or issued for delivery in this state which covers Louisiana residents may contain any provision which deprives the courts of this state of jurisdiction of action against the insurer. The jurisprudence construing and applying this statute is both consistent and too voluminous to require citation. Together, the statute and cases announce the unequivocal policy of this state that no foreign insurer may enjoy the benefits of a source of business in this state without being prepared to answer any claims based on that business by a Louisiana resident in the Louisiana courts. This policy comports with due process requirements and the insurer suffers no undue hardship thereby. We find no sufficient reason to abrogate that policy here.

Bonura, 552 So.2d at 1251-1252.

Admittedly, the factual and procedural history in the instant case are different from the scenario we considered in Bonu-ra. However, the holding in Bonura was not limited to the facts and circumstances therein. Thus, we find Bonura to be determinative of the resolution of the issue before us and are constrained to follow same. The trial court erred in finding a lack of subject matter jurisdiction in this matter. Accordingly, the court’s judgment sustaining the exception raising the objection of lack of subject matter jurisdiction and dismissing All Star’s petition is hereby reversed.

CONCLUSION

For the above and foregoing reasons, the trial court’s judgment is reversed and the case is remanded for further proceedings consistent with this opinion. All costs associated with this appeal are assessed against Reliance.

REVERSED AND REMANDED.

McClendon, j., concurs.

      . Reliance answered tire instant appeal, urging this court to deny All Star’s appeal as frivolous. In light of our finding herein, we find no merit to this argument.


author: h EDWIN A. LOMBARD, Judge.

text:
    Kathy WILKERSON v. CITY OF NEW ORLEANS FIRE DEPARTMENT.
    No. 2003-CA-1550.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 3, 2004.
    Rehearing Denied May 18, 2004.

      Milton Osborne, Jr., New Orleans, LA, for Plaintiff/Appellant.
    Richard L. Seelman, Wayne J. Fontana, Courtenay, Hunter & Fontana, L.L.P., New Orleans, LA, for Defendant/Appellee.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge EDWIN A. LOMBARD, Judge Pro Tempore MOON LANDRIEU).
   h EDWIN A. LOMBARD, Judge.

This appeal arises out of the denial of workers’ compensation benefits, penalties and attorney’s fees. For the following reasons, we affirm.

Pertinent Facts and Procedural History

The plaintiff/appellant, Kathy Wilkerson, was employed as a firefighter with the City of New Orleans. On June 23, 1996, during the course of her employment she injured her back. Ms. Wilkerson received workers’ compensation benefits until February 26, 1997, when her treating physician, Dr. Kenneth Butler, gave her a full medical release to return to full duty with the fire department. On May 19, 1997, she was involved in a non-work related automobile accident and, shortly thereafter, began treatment with Dr. Stewart Altman (and later with Dr. Kenneth Adatto) for injuries to her back and neck. She was unable to return to her duties as a firefighter and subsequently received a settlement for the injuries sustained in the automobile accident.

On February 24, 2000, Ms. Wilkerson filed a Disputed Claim For Compensation with the Office of Workers’ Compensation claiming that she was entitled to benefits because the subsequent automobile accident |?aggravated her June 1996 work-related injury. Ms. Wilkerson’s claim for benefits was denied and the case proceeded to trial on April 14, 2003, before Workers’ Compensation Judge, Gwendolyn F. Thompson. On May 12, 2003, judgment was rendered, denying Ms. Wilkerson workers’ compensation benefits and medical expenses from the May 1997 accident.

Ms. Wilkerson timely filed this devolu-tive appeal.

Applicable Law

An injured employee is entitled to receive benefits for an injury that arises out of and in the course and scope of his employment. La.Rev.Stat. 23:1031 A. In order to recover, the injured employee must establish (1) a work related accident; (2) a disability; and (3) a causal connection between the accident and. the disability. Daniel v. New Orleans Public Service Inc., 02-2427(La.App. 4 Cir. 12/3/03), 861 So.2d 721 (citation omitted). The exact cause of the disability need not be determined but the employee must show by a preponderance of the evidence that the work accident caused the disability. Hammond v. Fidelity Cas. Co. of New York, 419 So.2d 829, 831 (La.1982). In determining the probability that the disability was caused by a work accident, medical testimony must be weighed in light of other credible evidence of a nonmedical character, such as a sequence of symptoms or events. Id. (citation omitted). Provided that the evidence shows that there is a reasonable possibility of causal connection between the work-related accident and the disabling condition, an employee’s disability may be “presumed to have resulted from an employment accident if the plaintiff was in good health before the accident and the symptoms of the disabling condition appeared and | scontinuously manifested themselves” after the accident. Id. at 831; see also Doucet v. Baker Hughes Production Tools, 93-3087, p. 2 (La.3/11/94), 635 So.2d 166, 167-68 (under standard set in Hammond, employee entitled to rebuttable presumption that disability is result of employment accident). Thus, under limited circumstances a disabling condition resulting after a non-work-related accident is compensable if (1) the employee suffered a previous work-related injury; (2) there was a great likelihood that the worker would receive additional injuries because of the work-related injury; and (3) the subsequent accident which aggravated the work-related injury was foreseeable. See Employers Mutual Liability Insurance Company of Wisconsin v. Dixon, 425 So.2d 885, 886 (La.App. 4 Cir.1983)(reconciling Kelly v. City of New Orleans, 414 So.2d 770 (La.1982) (surgery which became necessary because of non-work related accident based on medical testimony indicating a 75 probability that such an accident would occur because employees ligaments had been weakened in work-related accident) and Allstate Insurance Company v. Theriot, 362 So.2d 1214 (La.App. 4th Cir.1978), revd on other grounds, 376 So.2d 950 (La.1979) (employer not liable for additional workers compensation as a result of second accident because that accident was non-work related)).

Burden of Proof

Claimants in a workers’ compensation proceeding have the initial burden of proof as to causation. Dean v. K-Mart Corp., 97-2850 (La.App. 4 Cir. 7/29/98), 720 So.2d 349. The workers’ compensation claimant must prove by a preponderance of the evidence that an employment accident had a causal ^relationship to the disability; if the testimony leaves the probabilities evenly balanced, the claimant has failed to carry the burden of persuasion. See Harvey v. Bogalusa Concrete, Inc., 97-2945 (La.App. 1 Cir. 9/25/98), 719 So.2d 1130, 1131.

Standard of Review

Factual findings in a workers’ compensation case are subject to the manifest error or clearly wrong standard of appellate review. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840, p. 7 (La.7/1/97), 696 So.2d 551, 556 (citations omitted). Under this standard, the issue is not whether the trier of fact was right or wrong but whether the factfinder’s conclusion was a reasonable one. Id. (citations omitted). Where there are two permissible views of evidence, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. Stobart v. State, Through Department of Transportation and Development, 617 So.2d 880, 882-83 (La.1993). Accordingly, if the factfin-der’s findings are reasonable in light of the record reviewed in its entirety, this court may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Banks, 696 So.2d at 556 (citation omitted).

Discussion

On appeal, Ms. Wilkerson asserts three assignments of error: (1) the trial court erred in finding that she was not entitled to workers’ compensation benefits after the May 1997 automobile accident; (2) the trial court erred in finding that the May 1997 and December 2002 accidents were not an aggravation of her 1996 job-related injuries; and (3) the trial court erred in failing to award penalties and attorney’s fees.

| RThe premise of Ms. Wilkerson’s argument in her first two assignments of error is that, although she returned to work in February 1997, she remained disabled. Accordingly, Ms. Wilkerson contends that the automobile accident in May 1997 served only to aggravate her pre-existing condition and her disability was a result of the work-related accident. In support of this contention, the appellant points only to her trial testimony that Dr. Butler released her to return to work in February 1997 because she requested him to do so out of fear for losing her job with the fire department.

In response, the defendant/appellee, the City of New Orleans Fire Department, maintains that workers’ compensation benefits were correctly denied because the 1997 automobile accident was an intervening and independent action that did not result in the aggravation of Wilkerson’s prior work-related injury and that even if Ms. Wilkerson’s accident aggravated her work injuries she does not have a compen-sable claim in this case because the motor vehicle accident was not reasonably foreseeable or a natural or expected consequence of her original accident and injuries. The appellee submits that the record evidence, particularly the medical reports of Dr. Altman, Dr. Phillips and Dr. Adatto related to appellant’s 1997 automobile accident and Dr. Butler’s February 1997 report releasing Ms. Wilkerson back to full duty with no limitations, supports the trial court’s finding that Ms. Wilkerson’s disability was not work-related and, therefore, not compensable.

In her reasons for judgment, Judge Thompson found as follows:

The evidence presented showed that claimant had recovered enough from her work accident on June 23, 1996[,] and that she had returned to full duty as a fire fighter on February 26, 1997. Based on the evidence presented, claimant performed all duties required of a New Orleans Fire fighter.
IfiOn May 18, 1997, claimant had a non-work-related car accident that rendered claimant unable to ever return as a fire fighter.
All medical evidence supports that claimant had recovered to the extent that she could perform the required duties of a New Orleans fire fighter.
Claimant is NOT entitled to any indemnity benefits after her return to work in February of 1997.

A review of the record supports the trial court’s findings. First, the medical evidence introduced at trial reveals that in her medical histories given to Doctors Altman,. Gaupp, Phillips, and Adatto after the 1997 automobile accident, Ms. Wilkerson indicated that she had fully recovered from her previous work-related injury. Moreover, there is no medical evidence in the record that indicates that the injuries sustained by Ms. Wilkerson in the 1997 automobile accident were attributed to, or an aggravation of, her prior work-related injury-

Although Ms. Wilkerson testified at trial that she remained disabled after her return to full duty in February 1997, there is no evidence in the record to support her contention. Moreover, her testimony is refuted by Dr. Butler’s report which released her for full duty in February 1997 and by the trial testimony of her immediate supervisor who testified that he observed no physical limitations in Ms. Wilkerson’s performance of her duties as a firefighter upon her return to work and was never informed by Ms. Wilkerson that she had not fully recovered from her previous injuries.

Given the great weight afforded to the trial court with respect to evaluations of witnesses and credibility determinations and in light of the record evidence to the contrary, we cannot say that the trial court erred in discounting Wilkerson’s testimony that she was not fully recovered when she returned to duty in February 1997. The automobile accident that caused Ms. Wilkerson’s disabling injury was an intervening and independent action, not a natural or expected consequence of |7her original work-related injury, and, accordingly, she is not entitled to workers’ compensation for injuries arising out of the second accident. See Employers Mutual Insurance Company of Wisconsin, 425 So.2d at 886; see also Elliott v. Glass, 615 So.2d 1354 (La.App. 2 Cir.1993).

Because we conclude that Ms. Wilkerson is not entitled to compensation benefits, we do not address her third assignment of error in relation to the trial court’s denial of attorney’s fees and penalties. See La. Rev.Stat. 23:1201.

Conclusion

For the foregoing reasons, the judgment to deny workers’ compensation benefits is affirmed.

AFFIRMED.

      . The parties have stipulated that the automobile accident was not work-related.

      . A work-related accident is defined as "an unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration. La.Rev.Stat. 23:1021(1).

      . Wilkerson argues for the first time in her appeal brief that she injured her foot in a fall in December 2002, and that it somehow was an aggravation of her previous work-related back injury. Wilkerson presented no testimony or evidence at trial in relation to a foot injury. Accordingly, that incident is not considered in this appeal.