author: |,DENNIS R. BAGNERIS, SR., Judge. 11 CANNIZZARO, J.,

text:
    Keith KELLER and Thomas O’Neil v. Phyllis Cohen, Wife of/and Dean P. ALLISON and Kerri Holder, Wife of/and Joseph Alan Novotny.
    No. 2003-CA-1644.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 23, 2004.

      Eric Oliver Person, New Orleans, LA, for Plaintifi/Appellee.
    Edmond G. Miranne, Jr., Deputy City Attorney, Joseph H. Riley II, Assistant City Attorney, Kristine B. Kendrick, Chief Deputy City Attorney, Sherry S. Landry, Acting City Attorney, and Paula R. George, Jerry A. Bonnet, New Orleans, LA, for Intervenor/Appellant.
    (Court composed of Judge JAMES F. McKAY III, Judge DENNIS R. BAGNERIS, SR., and Judge LEON A. CANNIZZARO, JR.).
   |,DENNIS R. BAGNERIS, SR., Judge.

The City of New Orleans (“The City”) and Amram Cohen (“Cohen”) seek to reverse the trial court’s denial of its Petition for Intervention and for Injunction to Arrest Seizure and Sale under Executory Process. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

The record reveals that on June 10, 1983, Phyllis Cohen-Allison, wife of /and Dean P. Allison (“The Allison”) acquired 823-25 Peniston Street (“the Property”). The property was financed by Carrollton Homestead Association (“Carrollton Homestead”). The Allisons executed a promissory note representing the loan and they granted a mortgage on the property in favor of Carrollton Homestead to secure the obligation under the note.

In 1987, the Allisons sold the property by act of sale and assumption to Kerri Holder, wife of/and Joseph Alan Novotny (“The Novotnys”). In 1991, the Novotnys sold the note to Lisa White, wife of / and James A. Castiglione, Jr. wife, who in turn by sale and assumption returned the property and note and mortgage securing the note to the Novotnys.

Un February 1992, Carrollton Homestead filed a petition for foreclosure via executory process without appraisement against the property and accelerated all payments. The Allisons and the Novotnys were named as defendants in the lawsuit. Approximately one month after Carrollton Homestead filed its petition for foreclosure via executory process, Carrollton Homestead went into receivership and Resolution Trust Corporation (“RTC”) was appointed receiver. The RTC then assigned the note and mortgage to Southeast Investments Inc., which merged with Southeast Investments, L.L.C. (“Southeast”) in January 1995.

In 1994 the property was adjudicated to the City of New Orleans for non-payment of the 1991 ad valorem property taxes, which remained unpaid up to and through 2003. Also, the City considered the property abandoned. In February 2003, the City gave preliminary approval to Cohen’s application to purchase the property.

In June 2003, Southeast assigned the note and the mortgage to the property to Keith Keller and Thomas O’Neil. On June 9, 2003, Keith Keller and Thomas O’Neil filed a petition for foreclosure via execute-ry process without appraisement. The trial court appointed a curator, granted exec-utory process and issued a writ of seizure and sale to the Civil Sheriff to seize and sell the property.

In June 2003, a curator was appointed for Kerri Holder, wife of/ and Joseph A. Novotny to represent them as absentee defendants. On June 20, 2003, the City sold the property to Cohen for the sum of Nineteen Thousand Two Hundred Fifty and No/100 ($19, 250.00).

In July 2003 Cohen filed a petition for intervention and for injunction to árrest seizure and sale under executory process. The trial court set the matter for a show cause hearing for April 1, 2003. On July 30, 2003, Keller and O’Neil filed |3their answer to the petition for intervention and for injunction to arrest seizure and sale under executory process filed by Cohen. Also, on July 30, 2003 Amram filed a petition to quiet tax title, for cancellation of mortgage inscription and cancellation of affidavit of intent to possess the property.

On August 1, 2003, a hearing was held on Cohen’s petition for intervention and for injunction to arrest seizure and sale of the property. Both parties submitted their respective memoranda. On August 20, 2003, the trial court rendered judgment denying the intervention and injunction. The trial court also issued written reasons for judgment.

On appeal, the pivotal issues are whether the trial court erred in denying his petition for intervention and for injunction to arrest seizure and sale under executory process and whether that' the City did not comply with the notice provision of LSA-R.S. 33:4720.11, et seq.

DISCUSSION

A court of appeal may not set aside a trial court’s or a jury’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong.” Rosell v. ESCO, 549 So.2d 840 (La.1989); Stobart v. State, Through Department of Development and Transportation, 617 So.2d 880, 883 (La.1993). In Mart v. Hill, 505 So.2d 1120, 1127 (La.1987), the Louisiana Supreme Court announced a two-part test for the reversal of a fact finder’s determinations:

1. The appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, and
2. The appellate court must further determine that the record establishes that the finding is clearly wrong or manifestly erroneous.

|4In essence, this test means that a reviewing court must do more than simply review a record for some evidence which supports the trial court’s finding; it must determine that the record, as a whole, establishes the trial court was justified in its conclusions. However, because the fact finder is best aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said, when there is a conflict in the testimony reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Rosell, at 844; Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Housley v. Cerise, 579 So.2d 973 (La.1991).

The issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong, but whether the fact finder’s conclusion was a reasonable one. Cosse v. ALlen-Bradley Co., 601 So.2d 1349, 1351 (La.1992). The reviewing court must always keep in mind that “if the trial court or jury’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even though convinced that had it been sitting as the trier of fact,, it would have weighed the evidence differently.” Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1112 (La.1990). Consequently,, when there are two permissible views of the evidence, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. Id., at 1112.

In order to stop the seizure and sale of property, the defendant may assert objections through an injunction' proceeding, as set forth in La. C.C.P. arts: 2751-52, as follows:

Art. 2751. Grounds for arresting seizure and sale; damages

|fiThe defendant in the executory proceeding may arrest the seizure and sale of the property by injunction when the debt secured by the security interest, mortgage, or privilege is extinguished, or is legally unenforceable, or if the procedure required by law for an execu-tory proceeding has not been followed.
Art. 2752. Injunction procedure
A. The petition for injunction shall be filed in the court where the executory proceeding is pending, either in the ex-ecutory proceeding or in a separate suit. The injunction proceeding to arrest a seizure and sale shall be governed by the provisions of Articles 3601 through 3609 and 3612, except as provided in Article 2753. However, a temporary restraining order shall not issue to arrest the seizure and sale of immovable property, but the defendant may apply for a preliminary injunction in accordance with Article 3602. In the event the defendant does apply for a preliminary injunction the hearing for such shall be held before the sale of the property. B. If the court finds that the temporary restraining order or preliminary injunction was wrongfully issued, the court, unless the proceedings are stayed, in addition to the damages authorized under Article 3608, may allow the sheriff to proceed with the sale by virtue of the prior advertisement, if not expired.

A writ of preliminary injunction may only be issued .for certain reasons, as set forth in' La. C.C.P. art. 3601, as follows:

Art. 3601. Injunction, grounds for issuance; preliminary injunction; temporary restraining order
An injunction shall issue in cases where irreparable injury, loss, or damage may otherwise result to the applicant, or in other cases specifically provided by law; provided, however, that no court shall have jurisdiction to issue, or cause to be issued, any temporary restraining order, preliminary injunction, or permanent injunction against any state department, board or agency, or any officer, administrator or head thereof, or any officer of the State of Louisiana in any suit involving the expenditure of public funds under any statute or law of this state to compel the expenditure of state funds when the director of such department, board or agency, or the governor shall certify that the expenditure of such funds would have the effect of creating a deficit in the funds of said agency or be in violation of the requirements placed upon the expenditure of such funds by the legislature.
During the pendency of an action for an injunction the court may issue a temporary restraining order, a preliminary injunction, or both, | ^except in cases where prohibited, in accordance with the provisions of this Chapter.
Except as otherwise provided by law, an application for injunctive relief shall be by petition.

A preliminary injunction is an ancillary proceeding and the right to the permanent injunction must be proven before a preliminary injunction may be issue. See Editors’ Notes to La. C.C.P. art. 3601.

In the instant case, the trial court in its written reasons for judgment found that the provisions of LSA-R.S. 33:4720.11, et seq. require that the mandated Notice be made by the City of New Orleans. Further, the trial court noted that there is no authority for the City to designate other than itself to provide Notice and that the City failed to provide the requisite Notice. Therefore, the 60-day post-adjudicative period prior to the sale of the property did not pass, and as a result the sale to the Intervenor was not valid. Also, the Intervenor was not a party of interest and has no right to enjoin the Executory Process action.

After careful review of the record in its entirety, we find the record indicated the fact finder’s conclusions were reasonable ones. Further, the record, as a whole, establishes the trial court was justified in its conclusions. We find no error in the trial court’s judgment.

Accordingly, we affirm the trial court’s judgment.

AFFIRMED.

CANNIZZARO, J., dissents with reasons.

11 CANNIZZARO, J.,

dissents with reasons.

I respectfully dissent from the majority opinion. The issue before this Court is whether the trial court properly denied the Petition for Intervention and for Injunction to Arrest Seizure and Sale under Ex-ecutory Process that was filed by Amram Cohen, who had acquired the property that was involved in the foreclosure proceeding in which he sought to intervene. The property had been acquired by Mr. Cohen from the City of New Orleans pursuant to the provisions of La.R.S. 33:4720.11 et seq. These statutes pertain to the sale of abandoned property and permit the City to transfer to a new owner property that is vacant or not lawfully occupied and that has been adjudicated to the City for the nonpayment of taxes.

The trial court denied Mr. Cohen the right to intervene in the foreclosure proceeding. In his Reasons for Judgment, the trial court judge stated that “[t]he Court ... finds that because the City did not provide the mandated Notice, the sixty day post-adjudicative period prior to sale of the property did not pass, and as a result the sale to Intervenor is not valid and Intervenor is not a party at interest and has no right to enjoin the Executory Process action.” The notice required to be given pursuant to La.R.S. 33:4720.17 was not given by the City, but instead was given by Mr. Cohen’s attorney in accordance with the City’s written direction to |2her to give the notice. In his Reasons for Judgment, the trial court judge failed to recognize that the City had the authority to designate a party to give the required notice on behalf of the City.

Although the majority opinion correctly states the standard of review for a trial court’s finding of fact, the issue to be reviewed by this Court on appeal is not a factual finding. Whether the notice required to be given pursuant to La.R.S. 33:4720.17 may be given by a designee of the City is a question of law. Our review of. a question 'of law involves a determination of whether the lower court’s interpretive decision is legally correct. Sander v. Brousseau, 2000-0098, p.4 (La.App.4 Cir. 10/4/00), 772 So.2d 709, 711. If the decision of the district court is based on an erroneous application' of the law, rather than on the exercise of discretion, the decision is not entitled to deference by this Court. Glass v. Alton Ochsner Medical Foundation, 2002-0412, p. 3 (La.App. 4 cir. 11/6/02), 832 So.2d 403, 405, writ denied, 2002-2977 (La. 3/14/03), 389 So.2d 36, 2002-3018 (La.3/14/03), 839 So.2d 37.

I find that the trial court erroneously applied the law in this case. La.R.S. 33:4720.17(A) provides that “the political subdivision shall cause notice to be given .... ” (Emphasis added.) La.R.S. 33:4720.12(2)(a) defines the notice required to be given as “the sending of written communication to interested parties” in one of the following three ways:

(i) By means of registered or certified mail, return receipt requested.
(ii) In the same manner as service of citation or other process, whether made by sheriff, deputy sheriff, or constable.
ls(iii) By a duly authorized building inspector or other representative of the political subdivision, as provided by ordinance.

In the instant case the City requested that Mr. Cohen’s attorney give' the required notice, which she did in accordance with La.R.S. 33:4720.12(2)(a)(i). I find that this method of notification satisfied the requirements of La.R.S. 33:4720.17. The City caused the required notice to be given, and it was given in the manner required by the statute. Therefore, the notice was legal, and the trial court erred as a matter of law in finding that the sale to Mr. Cohen was invalid, because the proper notice was not given.

The trial court should have enjoined the sale of the property at foreclosure and permitted Mr. Cohen to intervene in the proceeding to assert his rights to the property. I would reverse the trial court judgment and remand this case -to the trial court for further proceedings.

      . Notice of the sale of abandoned property must be given to “the owner, the mortgagee, and any other person who may have a vested or contingent interest in the property, or who has filed a request for notice” at least sixty days prior to the sale of the property by the City.

      . If the parties to be notified are absent or cannot be served, then notice may be given by publication in the political subdivision’s official journal. La.R.S. 33:4720.12(2)(b).


source: Caselaw Access Project

author: I, THIBODEAUX, Chief Judge. h SCOFIELD, Judge *,

license: Public Domain

text:
    SABINE PARISH POLICE JURY v. COMMISSIONER OF ALCOHOL & TOBACCO CONTROL.
    No. 2004-78.
    Court of Appeal of Louisiana, Third Circuit.
    June 23, 2004.

      Don M. Burkett, District Attorney, Many, LA, for Sabine Parish Police Jury.
    Donald G. Kelly, Kelly, Townsend & Thomas, Natchitoches, LA, for Sabine Manufacturing, Inc.
    Celia R. Cangelosi, Baton Rouge, LA, for Commissioner of Alcohol & Tobacco Control.
    Court composed of ULYSSES GENE THIBODEAUX, C.J., GLENN B. GREMILLION, and JOHN B. SCOFIELD , Judges.

       Honorable John B. Scofield participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.

   I, THIBODEAUX, Chief Judge.

The dispute in these three consolidated cases involves whether a certain portion of Sabine Parish can sell alcoholic beverages. The Sabine Parish Police Jury (Police Jury) appeals the judgment of the trial court finding that Ward 3 of Sabine Parish, was merged with Election District 6 of Sabine Parish when election districts were created in that parish, resulting in Ward 3’s prohibition of the sale of alcohol to be without effect. For the following reasons, we affirm the judgment of the trial court.

I.

ISSUE

The issue in this case is whether, pursuant to La.R.S. 26:583, Ward 3 of Sabine Parish, which prohibits the sale of alcoholic beverages, has been merged into Election District 6, which does not prohibit such sales, when Sabine Parish was divided into election districts encompassing parts of both Wards 3 and 5.

II.

FACTS

In March 1977, a local option election was held in Ward 3 of Sabine Parish. The citizens of Ward 3 voted to forbid the sale of alcoholic beverages in the ward. In the 1980s, Sabine Parish was divided into election districts. The impetus for the creation of election districts based on population in the 1980s appears to have been the parish’s desire to comply with the federal mandate of “one man-one vote.” See King v. Caddo Parish Comm’n, 31,098, p. 5 (La.App. 2 Cir. 12/22/98), 727 So.2d 545, 548, and Stephens v. Madison Parish Police Jury, 463 So.2d 609 (La.App. 2 Cir.1984). When Election District 6 was created, part of Ward 3 and all of Ward 5 were | ^included. Ward 5 had not held a local option election; thus, the sale of alcoholic beverages was not prohibited in that ward.

On January 15, 2003, the Police Jury passed a resolution opposing the issuance of alcoholic beverage licenses in Ward 3. Thereafter, on January 23, 2003, Sabine Manufacturing, Inc. (Sabine Mfg.), which operates Toledo Town and Tackle (Town & Tackle) in Ward 3, applied to the State of Louisiana, Department of Alcohol and Tobacco Control, for a permit to sell beverages of high and low alcohol content at Town & Tackle. The State granted the license to Sabine Mfg. However, the Sheriff of Sabine Parish, Guffey Pattison, refused to issue a local license and Sabine Mfg.-filed suit to obtain the local license.

In June 2003, Sabine Mfg. applied for both a state and local license to sell high and low alcoholic content beverages at Mr. C’s Café, a restaurant Sabine Mfg. operates which is located also within the boundaries of Ward 3. Again, the state license was granted, but the Police Jury refused to issue a local license. Sabine Mfg. filed suit again. Thereafter, the Police Jury filed suit against the Commissioner of Alcohol and Tobacco Control and Sabine Mfg. to have the Commissioner’s decision to grant liquor licenses to Sabine Mfg. reviewed. The Police Jury asserted that the state was prohibited from issuing a liquor license to Sabine Mfg. because Ward 3’s previous local option election resulted in a prohibition against the sale of alcoholic beverages within its boundaries.

The three cases were consolidated for trial. At the conclusion of trial, the trial court rendered a judgment in favor of the Commissioner and Sabine Mfg. and ordered the Police Jury and Sheriff Pattison to issue local liquor licenses to Sabine Mfg. It is from this judgment that the Police Jury and Sheriff Pattison appeal.

Jain.

LAW AND DISCUSSION

The Police Jury and Sheriff Pattison contend that the sale of liquor remains prohibited in Ward 3 because it still retains some functions as a separate ward, e.g., its road district, tax collecting and spending powers, fire protection and stock laws, and has not been totally abolished as a ward for these purposes. They argue that becoming a part of Election District 6 did not change the “dry” status of Ward 3. To the contrary, Sabine Mfg. and the Commissioner urge that once Ward 3 became part of Election District 6, a district that allows the sale of alcohol, its status as a “dry” ward was negated pursuant to La. R.S. 26:583.

Title 26 is the Alcoholic Beverage Control Law and its provisions regulate, among other aspects of controlling the sale of alcoholic beverages, local option elections. An election district is defined in La.R.S. 26:581(2) as a “district from which a parochial officer is elected but ‘election district’ does not include a district located entirely within an incorporated municipality.” The election code defines “ward” as “a police jury ward in a parish and in parishes having no police jury wards means the subdivision of the parish equivalent to a police jury ward.” La.R.S. 18:2(11).

In King, the case cited by the trial court in its judgment in this case, a portion of a previously established “dry” ward was encompassed within a later created election district. The issue in King was whether the portion of the ward that was within the new election district retained its “dry” status. The issue is the same in the present case. Ultimately, the court in King concluded that the ward did not retain its “dry” status once it became part of the election district.

l4At first glance, and in accordance with the appellants’ arguments, it appears that the King decision is justified because throughout the opinion it referred to the ward as the “old ward three.” Appellants assert that the court’s reference to -the ward as the “old” ward indicates that the ward was abolished; thus, central to the King decision is the fact that the ward did not exist for any purpose once it was made part of the election district or, in other words, it was totally abolished. They argue that the ward at issue in the present case still exists for limited purposes and has not been declared abolished, unlike the ward in King which ceased to exist for all purposes. King, therefore, does not support the trial court’s judgment. We disagree with the appellants’ position.

Our reading of King is that the court’s reference to the “old” ward three did not clearly imply that it was a thing of the past. Instead the use of the word “old” when discussing ward three appears to be nothing more than a way of distinguishing it from the newly formed election district. In King, the court cited with favor the second circuit case of Stephens, 463 So.2d 609. In Stephens, the court specifically concluded that the ward was abolished. However, on rehearing, the court noted that an old ward may continue to have some political function after restructuring, but reinstated the original opinion that a local option election in the old ward was negated. Consequently, it appears that neither King nor Stephens relied heavily on the abolishment of the respective wards for all purposes to conclude that they became a part of the new election district and were no longer “dry.” It does appear that both cases focused on whether the wards were used for election purposes. In Stephens, the court noted that the “police jurors were elected from the newly created wards.” Stephens, 463 So.2d at 611. Likewise, in King, the court noted:

With election district being defined and both terms [ward and election district ] being continued in the local | f,option law, the controlling term in this appeal from Caddo Parish [as restructured] is election district, while in the case of a parish that continues to elect its governing body from wards [even though restructured], the controlling term in the local option law would be ward. ... [T]he entity that chooses a member of the parish governing body that is made a part of another ward or election district “shall take on the [wet or dry] characteristics ... of [either] the ward [or] election district [as the case may be] ... to which it is ... made a part of.... [T]he statute ... corroborates this conclusion by continuing to declare its intent “that the sale of [alcoholic] beverages covered by this Title [the local option law] be permitted or prohibited in an entire ward [or] election district. ...” § 583.

King, 727 So.2d at 549 (emphasis in original).

In the present case, the officials of the parish governing body, police jurors, are elected from election districts and not from wards. Thus, Election District 6 is the “parish governing authority,” as stated in La.R.S. 26:583. Although there was a local option election prior to Ward 3 being made a part of Election District 6, there was no such election in Election District 6. As stated in King, a “newly created ward, or election district, respectively, as the case may be, is ‘wet’ until a local option election produces a dry vote and resulting ordinance in the respective entity.” King, 727 So.2d at 549. We find that Ward 3 was made a part of Election District 6, from which the Parish’s governing body is elected.

Despite Ward 3’s continued existence for other purposes, it does not exist for the purpose of electing the parish’s governing body. King and Stephens teach that it is not the abolishment of a particular ward for all purposes that is of importance in determining the wet or dry status of a previously “dry” political subdivision that is made part of a “wet” political subdivision. The central issue is whether the governing body of the parish is elected from the old political subdivision, that is “dry,” or the new political subdivision, that is “wet.” Since there has been no local option election in Election District 6 resulting in the prohibition of the sale of alcohol and police_yurors in Sabine Parish are elected from Election Districts, Ward 3 takes on the characteristics of Election District 6 and is, therefore, “wet.”

IV.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is affirmed. Costs of this appeal, in the amount of $1,394.28, are assessed equally against the appellants, Sabine Parish Police Jury and Sheriff Guf-fey Pattison.

AFFIRMED.

SCOFIELD, J., dissents and assigns written reasons.

h SCOFIELD, Judge *,

dissenting.

I respectfully disagree with the majority opinion affirming the trial court. I am of the opinion that in rendering its decision, the majority failed to adequately address the intent of the Louisiana legislature in enacting La.R.S. 26:583, as well as the intent of the Sabine Parish Police Jury in creating election districts.

The majority, as did the trial court, relies heavily upon the decision in King v. Caddo Parish Com’n, 31,098 (La.App. 2 Cir. 12/22/98), 727 So.2d 545. The King case has facts very similar to the case at hand, i.e., a portion of a previously established “dry” ward was encompassed within a later created election district. The legal issue in King was whether the portion of the ward encompassed within the election district retained its dry status, the legal focus, as it is in this case, being on La.R.S. 26:583.

Initially, I would observe that there is a significant factual difference between this case and the King case. Central to the court’s decision in King is the court’s opinion that the ward at issue was no longer in existence, no longer a viable entity. In its decision, the court repeatedly refers to “old Ward Three”, clearly implying that the ward was a thing of the past. In the case at hand there is no evidence in the record that Ward Three in Sabine Parish was abolished. To the contrary, the undisputed evidence is that Ward Three is still very much in existence, having multiple, ongoing political purposes. Ronald Busby, Secretary-Treasurer of the | ;>Sabine Parish Police Jury, testified that Ward Three is still the basis for establishing and assessing taxes for road districts and fire protection districts as well as establishing boundaries for stock laws.

The King court cites with favor the case of Stephens v. Madison Parish Police Jury, 463 So.2d 609 (La.App. 2 Cir.1984) In Stephens, however, the court found that: “[a]s Old Ward 8 no longer served any political purpose, it was effectively abolished.” Id. at 611. Consequently, both King and Stephens relied heavily on the assumption that the respective wards in each case had been abolished or no longer served any political purpose. The undisputed evidence here is that Ward Three in Sabine Parish still serves several political functions.

While the factual differences between this case and King are noteworthy, this case should turn on issues of law. In short, the decision should be based upon the meaning of La.R.S. 26:523. Did the legislature really intend that the creation of an election district for one purpose automatically annuls the longstanding vote of the people on a matter having a different purpose? I do not think so. With due deference to the majority, as well as the majority in King, I am of the opinion that they did not sufficiently analyze the controlling statute. Section A of the La.R.S. 26:583 provides as follows:

A. When a portion of a ward, election district, or municipality is annexed or made a part of another ward, election district, municipality, or city-parish government, the portion annexed or made a part of shall take on the legal sales characteristics, as provided in this Chapter, of the ward, election district, municipality, or city-parish government to which it is annexed or made a part of. (Emphasis ours.)

For the purpose of the present analysis, the key word in Section A is “another.” I am of the opinion that in this context the word “another” means “an additional 13person or thing of the same type as already mentioned” or “one ... of the same kind.” More specifically, the statute is saying that the provisions of the act apply when “a portion of a ward ... is annexed and made part of another ward ...” Consistent with this usage of the word, a portion of a ward could not be made a portion of “another” election district. A ward and an election district are dissimilar entities. When referring to a ward, the only entity that would be one of the same type as already mentioned or of the same kind would be another ward.

To read the statute otherwise would be like saying a ward can become a part of “another” city, or an apple can be made part of “another” orange. If the legislature had intended to interpret the statute as the majority has done here, it could have phrased the pertinent part of Section A as follows; “When a portion of a ward, election district, or municipality is annexed or made part of either a ward, election district, municipality, or city-parish government ...” The legislature did not so phrase Section 583, choosing rather to use the word “another” instead of “either a.” This court must give words of laws their generally prevailing meaning.

The starting point for the interpretation of any statute is the language of the law itself. Ginn v. Woman’s Hospital Foundation, Inc., 02-1913, p. 9 (La.4/9/03), 842 So.2d 338, 344; Rougeau v. Hyundai Motor America, 01-1182, p. 5 (La.1/15/02), 805 So.2d 147, 151. Special rules for interpreting a statute (such as La. R.S. 9:2798.1) have been enacted by the legislative branch and are found in La. R.S. 1:1 et seq. Louisiana Revised Statute 1:3 provides, in pertinent part, that “[wjords and phrases shall be read with their context and shall be Lconstrued according to the common and approved usage of the language” and the “word ‘shall’ is mandatory.” (Emphasis added.) Louisiana Revised Statute 1:4 provided that “[w]hen the wording of a Section [of a statute] is clear and free of ambiguity, the letter of it shall not be disregarded under the pretext of pursuing its spirit.” The legislative branch also has provided general rules for interpreting laws in La. C.C. art. 9 et seq. See, in particular, La. C.C. arts. 9 and 11. We are bound by the language of a relevant law. Allen v. State, through the Ernest N. Morial-New Orleans Exhibition Hall Authority, 02-1072, p. 12 (La.4/9/03), 842 So.2d 373, 381.

Gregor v. Argenot Great Cent. Ins. Co., 02-1138, pp. 6-7 (La.5/20/03), 851 So.2d 959, 964 (footnote omitted).

The interpretation that I am giving Section A of the statute is consistent with the provisions of Section B of the statute which provides that: “it [is] the intention of this Chapter that the sale of beverages covered by this Title be permitted or prohibited only in an entire ward, election district, or incorporated municipality and not in any portion thereof.” Section B is saying, as it pertains to Ward Three, that either all of that ward must be wet or none of it is wet. The majority does not address what happens to that part of Ward Three which was not included in Election District Six. Does it remain dry? To allow part of Ward Three to remain dry while mandating that the remainder of the ward become wet, in spite of the will of the voters of that ward as expressed in the local option election, clearly contravenes Section B of La.R.S. 26:583. Ward Three apparently ends up being part wet and part dry.

As to the sanctity given a vote of the people themselves, as compared to a vote of a legislative body such as a police jury, the court in Hughes v. Parish Council of Parish of East Baton Rouge, 48 So.2d 823, 832 (La.App. 1 Cir.1950) stated:

It is hardly conceivable that the Legislature of the State of Louisiana would grant to the people of the various political subdivisions, a right by ballot to create dry territories and at the same time, vest in the Police Jury a right to wipe out this exercise of the ballot by the simple procedure of redistricting the parish. The redistricting of the ward lines |sfor the Parish of East Baton Rouge was done without any mention whatsoever as to the local option question and we do not think that the Police Jury of a parish can take it upon itself and negative a vote on local option by exercising its right granted it by changing the rearranging ward lines. In a case of this kind, we do not think that a prohibitory law such as that in question here, voted upon and adopted by a ward can be repealed or defeated in its operation by any subsequent act of the governing authorities of the Parish of East Baton Rouge, by a simple change of boundaries of an election district or ward. We say this especially in view of the absence of any election held subsequent to the election might negative the special referendum of the original Ward Four in 1937, which then held declaring said ward ‘dry.’

I do not believe the legislature intended that the direct vote of the people of Ward Three could be so easily cast aside as the decision of the majority now mandates.

The election districts in question were created by a simple ordinance of the Sabine Parish Police Jury. The fact that the Police Jury may have been motivated by federal legislation to pass the ordinance, does not alter a whit that the election districts are creatures solely of the Police Jury. The one purpose of the Police Jury was to create districts from which members of the legislative arm of the Parish, the Police Jury, would be elected. In passing the ordinance, the Police Jury had no intention of altering judicial districts, school board districts, fire districts, road districts, certain taxing districts, et cetera. The Police Jury certainly had no intention of abolishing the wards in that parish, nor did the Police Jury intend to abolish or alter in any way the dry status of Ward Three. To the contrary, the Police Jury’s keen intent to preserve the dry status of Ward Three could not be more clearly demonstrated than by the Police Jury’s vigorous defense of the. vote of the people of Ward Three in these very law suits.

The law plainly requires courts to give great weight to the interpretation given an ordinance by the governing body which had enacted it. Kneipp v. City of Shreveport, 550 So.2d 748 (La.App. 2 Cir.1989); Little Giant Food Stores, Inc. v. State, Dept. of Public Safety through Com’r of Alcoholic Beverage Control, 416 So.2d 128 (La.App. 2 Cir.1982); Huppenbauer v. Kissinger, 254 So.2d 636 (La.App. 4 Cir.1971). Here, the majority not only fails to give great weight to the Sabine Parish Police Jury’s interpretation of its own ordinance creating the election districts, it seems to give it no weight at all.

I am of the opinion that the majority decision also runs contrary to other pertinent statutes of the legislature. For instance, in the Alcoholic Beverage Control Law, particularly La. R.S. 26:81, the legislature provides, in pertinent part that:

A. No permit shall be granted under this Chapter in contravention of any municipal or parish ordinances adopted pursuant to the zoning laws of the state.
B. (1) No permit shall be issued by the commissioner or by any municipality or parish to authorize any business in any subdivision of the state where the business has been prohibited by referendum vote.

Additionally, another section of the Alcoholic Beverage Control Law, La.R.S. 26:273(A)(1) provides that:

A. No permit shall be granted under this Chapter in contravention of any municipal or parish ordinances adopted pursuant to the zoning laws of the state.
B. (1) No permit shall be issued by the commissioner or by any municipality or parish to authorize any business in any subdivision of the state where the business has been prohibited by referendum vote.

Both of these statutory provisions seem to clearly prohibit the Commissioner of Alcohol & Tobacco Control from issuing the permits in question.

For the foregoing reasons, I would reverse the judgment of the trial and, therefore, I respectfully dissent from the opinion of the majority.

      . Two judges of the five judge panel in King dissented with written reasons. Their dissent takes issue with the majority's assumption that Ward three was no longer in existence, saying: "Here, the record does not contain evidence to establish that Ward Three has ceased to serve a political purpose, that ward has been abolished by action of the Parish Commission.” King, 727 at 550.

      . Oxford American Dictionary.2002.

      . Webster's Third New International Dictionary, Unabridged. 1993.

      . The appellants' attempt to introduce minutes of the house judiciary committee relative to the 1997 amendment of La.R.S. 26:583 was denied by the trial court. That amendment simply made the act applicable to election districts, supplementing its original application to only wards and municipalities. The proffered committee minutes recited a proponent of the amendment as saying: "The proposed legislation would correct the problem in some areas that no longer have wards but have election districts.” (Emphasis added) While this proffered evidence is enlightening, it is not pivotal to this analysis.


author: | THIBODEAUX, Chief Judge. liSCOFIELD, Judge ,

text:
    SABINE MANUFACTURING, INC. v. SABINE PARISH POLICE JURY & Sheriff Guffey Pattison.
    No. 04-79.
    Court of Appeal of Louisiana, Third Circuit.
    June 23, 2004.

      Don M. Burkett, District Attorney, Many, LA, for Defendant/Appellant Sabine Parish Police Jury and Sheriff Guffey Pat-tison.
    Donald G. Kelly, Kelly, Townsend & Thomas, Natchitoches, LA, for Plaintiff/Appellee Sabine Manufacturing, Inc.
    Celia R. Cangelosi, Baton Rouge, LA, for Defendant-Appellee Commissioner of Alcohol & Tobacco Control.
    Court composed of ULYSSES GENE THIBODEAUX, C.J., GLENN B. GREMILLION, and JOHN B. SCOFIELD , Judges.

       Honorable John B. Scofield participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.

   | THIBODEAUX, Chief Judge.

For the reasons discussed in the consolidated case of Sabine Parish Police Jury v. Commissioner of Alcohol & Tobacco Control, 04-78 (La.App. 3 Cir. 6/23/04), 879 So.2d 349, the judgment of the trial court is affirmed. Costs of this appeal, in the amount of $1,394.28, are assessed equally to appellants, Sabine Parish Police Jury and Sheriff Guffey Pattison.

AFFIRMED.

SCOFIELD, J., dissents and assigns written reasons.

liSCOFIELD, Judge ,

dissenting.

I respectfully disagree with the majority opinion affirming the trial court. I am of the opinion that in rendering its decision, the majority failed to adequately address the intent of the Louisiana legislature in enacting La.R.S. 26:583, as well as the intent of the Sabine Parish Police Jury in creating election districts.

The majority, as did the trial court, relies heavily upon the decision in King v. Caddo Parish Com’n, 31,098 (La.App. 2 Cir. 12/22/98), 727 So.2d 545. The King case has facts very similar to the case at hand, ie., a portion of a previously established “dry” ward was encompassed within a later created election district. The legal issue in King was whether the portion of the ward encompassed within the election district retained its dry ’ status, the legal focus, as it is in this case, being on La.R.S. 26:583.

Initially, I would observe that there is a significant factual difference between this case and the King case. Central to the court’s decision in King is the court’s opinion that the ward at issue was no longer in existence, no longer a viable entity. In its decision, the court repeatedly refers to “old Ward Three”, clearly implying that the ward was a thing of the past. In the case at hand there is no evidence, in the record that Ward Three in Sabine Parish was abolished. To the contrary, the undisputed evidence is that Ward Three is still very much in existence, having multiple, ongoing political purposes. Ronald Busby, Secretary-Treasurer of the | ¡.Sabine Parish Police Jury, testified that Ward Three is still the basis for establishing and assessing taxes for road districts and fire protection districts as well as establishing boundaries for stock laws.

The King court cites with favor the case of Stephens v. Madison Parish Police Jury, 463 So.2d 609(La.App. 2 Cir.1984) In Stephens, however, the court found that: “[a]s Old Ward 8 no longer served any political' purpose, it was effectively abolished.” Id. at 611. Consequently, both King and Stephens relied heavily on the assumption that the respective wards in each case had been abolished or no longer served any political purpose. The undisputed evidence here is that Ward Three in Sabine Parish still serves several political functions.

While the factual differences between this case and King are noteworthy, this case should turn on issues of law. In short, the decision should be based upon the meaning of La.R.S. 26:528. Did the legislature really intend that the creation of an election district for one purpose automatically annuls the longstanding vote of the people on a matter having a different purpose? I do not think so. With due deference to the majority, as well as the majority in King, I am of the opinion that they did not sufficiently analyze the controlling statute. Section A of the La.R.S. 26:583 provides as follows:

A. When a portion of a ward, election district, or municipality is annexed or made a part of another ward, election district, municipality, or city-parish government, the portion annexed or made a part of shall take on the legal sales characteristics, as provided in this Chapter, of the ward, election district, municipality, or city-parish government to which it is annexed or made a part of.
(Emphasis ours.)

For the purpose of the present analysis, the key word in Section A is “another.” I am of the opinion that in this context the word “another” means “an additional Uperson or thing of the same type as already mentioned” or “one ... of the same..kind.” More specifically, the statute is saying that the provisions of the act apply when “a portion of a ward ... is annexed and made part of another ward ...” Consistent with this usage of the word, a portion of a ward could not be made a portion of “another” election district. A ward and an election district are dissimilar entities. When referring to a ward, the only entity that would be one of the same type as already mentioned or of the same kind would be another ward.

To read the statute otherwise would be like saying a ward can become a part of “another” city, or an apple can be made part of “another” orange. If the legislature had intended to interpret the statute as the majority has done here, it could have phrased the pertinent part of Section A as follows; “When a portion of a ward, election district, or municipality is annexed or made part of either a ward, election district, municipality, or city-parish government ...” The legislature did not so phrase Section 583, choosing rather to use the word “another” instead of “either a.” This court must give words of laws their generally prevailing meaning.

The starting point for the interpretation of any statute is the language of the law itself. Ginn v. Woman’s Hospital Foundation, Inc., 02-1913, p. 9 (La.4/9/03), 842 So.2d 338, 344; Rougeau v. Hyundai Motor America, 01-1182, p. 5 (La.1/15/02), 805 So.2d 147, 151. Special rules for interpreting a statute (such as La. R.S. 9:2798.1) have been enacted by the legislative branch and are found in La. R.S. 1:1 et seq. Louisiana Revised Statute 1:3 provides, in pertinent part, that “[w]ords and phrases shall be read with their context and shall be | ¿construed according to the common and approved usage of the language” and the “word ‘shall’ is mandatory.” (Emphasis added.) Louisiana Revised Statute 1:4 provided that “[w]hen the wording of a Section [of a statute] is clear and free of ambiguity, the letter of it shall not be disregarded under the pretext of pursuing its spirit.” The legislative branch also has provided general rules for interpreting laws in La. C.C. art. 9 et seq. See, in particular, La. C.C. arts. 9 and 11. We are bound by the language of a relevant law. Allen v. State, through the Ernest N. Morial-New Orleans Exhibition Hall Authority, 02-1072, p. 12 (La.4/9/03), 842 So.2d 373, 381.

Gregor v. Argenot Great Cent. Ins. Co., 02-1138, pp. 6-7 (La.5/20/03), 851 So.2d 959, 964 (footnote omitted).

The interpretation that I am giving Section A of the statute is consistent with the provisions of Section B of the statute which provides that: “it [is] the intention of this Chapter that the sale of beverages covered by this Title be permitted or prohibited only in an entire ward, election district, or incorporated municipality and not in any portion thereof.” Section B is saying, as it pertains to Ward Three, that either all of that ward must be wet or none of it is wet. The majority does not address what happens to that part of Ward Three which was not included in Election District Six. Does it remain dry? To allow part of Ward Three to remain dry while mandating that the remainder of the ward become wet, in spite of the will of the voters of that ward as expressed in the local option election, clearly contravenes Section B of La.R.S. 26:583. Ward Three apparently ends up being part wet and part dry. As to the'sanctity given a vote of the people themselves, as compared to 'a vote of a- legislative body such as a police jury, the court in Hughes v. Parish Council of Parish of East Baton Rouge, 48 So.2d 823, 832 (La.App. 1 Cir.1950) stated:

It is hardly conceivable that the Legislature of the' State of Louisiana would grant to the people of the various political subdivisions, a right by ballot to create dry territories and at the same time, vest in the Police Jury a right to wipe out this exercise" of the ballot by the simple procedure of redistricting the parish. The redistricting ■ of the ward lines Uor the Parish of East Baton Rouge was done without any mention whatsoever as to the local option question and we do not think that the Police Jury of a parish can take it upon itself and negative a vote on local option by exercising its right granted it by changing the rearranging ward lines. In a case of this kind, we do not think that a prohibitory law such as that in question here, voted upon and adopted by a ward can be repealed or defeated in its operation by any subsequent act of the governing authorities of the Parish of East Baton Rouge, by a simple change of boundaries of an election district or ward. We say this especially in view of the absence of any election held subsequent to the election might negative the special referendum of the original Ward Four in 1937, which then held declaring said ward ‘dry.’

I do not believe the legislature intended that the direct vote of the people of Ward Three could be so easily cast aside as the decision of the majority now' mandates.

The election districts in question were created by a simple ordinance of the Sabine Parish Police Jury. The fact that the Police Jury may have been motivated by federal legislation to pass the ordinance, does not alter a whit that the election districts are creatures solely of the Police Jury. The one purpose of the Police Jury was to create districts from which members of the legislative arm of the Parish, the' Police Jury, would be elected. In passing the ordinance, the Police Jury had no intention of altering judicial districts, school board districts, fire districts, road districts, certain taxing districts, et cetera. The Police Jury certainly had no intention of abolishing the wards in that parish, nor did the Police Jury intend to abolish or alter in any w;ay the dry status of Ward Three. To the contrary, the Police Jury’s keen intent to preserve the dry status of Ward Three could not be more clearly demonstrated than by the Police Jury’s vigorous defense of the vote of the people of Ward Three in these very law suits.

The law plainly requires courts to give great weight to the interpretation given an ordinance by the governing body which had enacted it. Kneipp v. City of Shreveport, 550 So.2d 748 (La.App. 2 Cir.1989); Little Giant Food Stores, Inc. v. State, Dept. of Public Safety through Com’r of Alcoholic Beverage Control, 416 So.2d 128 (La.App. 2 Cir.1982); Huppenbauer v. Kissinger, 254 So.2d 636 (La.App. 4 Cir.1971). Here, the majority not only fails to give great weight to the Sabine Parish Police Jury’s interpretation of its own ordinance creating the election districts, it seems to give it no weight at all.

I am of the opinion that the majority decision also runs contrary to other pertinent statutes of the legislature. For instance, in the Alcoholic Beverage Control Law, particularly La. R.S. 26:81, the legislature provides, in pertinent part that:

A. No permit shall be granted under this Chapter in contravention of any municipal or parish ordinances adopted pursuant to the zoning laws of the state.
B. (1) No permit shall be issued by the commissioner or by any municipality or parish to authorize any business in any subdivision of the state where the business has been prohibited by referendum vote.

Additionally, another section of the Alcoholic Beverage Control Law, La.R.S. 26:273(A)(1) provides that:

A. No permit shall be granted under this Chapter in contravention of any municipal or parish ordinances adopted pursuant to the zoning laws of the state.
B. (1) No permit shall be issued by the commissioner or by any municipality or parish to authorize any business in any subdivision of the state where the business has been prohibited by referendum vote.

Both of these statutory provisions seem to clearly prohibit the Commissioner of Alcohol & Tobacco Control from issuing the permits in question.

For the foregoing reasons, I would reverse the judgment of the trial and, therefore, I respectfully dissent from the opinion of the majority.

      . Two judges of the five judge panel in King dissented with written reasons. Their dissent takes issue with the majority's assumption that Ward three was no longer in existence, saying: "Here, the record does not contain evidence to establish that Ward Three has ceased to serve a political purpose, that ward has been abolished by action of the Parish Commission.” King, 727 at 550.

      . Oxford American Dictionary.2002.

      . Webster's Third New International Dictionary, Unabridged. 1993.

      . The appellants' attempt to introduce minutes of the house judiciary committee relative to the 1997 amendment of La.R.S. 26:583 was denied by the trial court. That amendment simply made the act applicable to election districts, supplementing its original application to only wards and municipalities. The proffered committee minutes recited a proponent of the amendment as saying: "The proposed legislation would correct the problem in some areas that no longer have Wards but have election districts." (Emphasis added) While this proffered evidence is enlightening, it is not pivotal to this analysis.


author: | WOODARD, Judge.

text:
    STATE of Louisiana v. Desmond JASON.
    No. 2003-1565.
    Court of Appeal of Louisiana, Third Circuit.
    June 30, 2004.

      Mr. Earl Taylor, District Attorney, District Attorney’s Office, Opelousas, LA, for Plaintiff/Appellee, State of Louisiana.
    Mr. James E. Beal, Louisiana Appellate Project, Jonesboro, LA, for Defendant/Appellant, Desmond Jason.
    Court composed of SYLVIA R. COOKS, BILLIE COLOMBARO WOODARD, and MARC T. AMY, Judges.
   | WOODARD, Judge.

Defendant, Mr. Desmond Jason, challenges his sentence of three years at hard labor after he pled guilty to possession of cocaine. For the following reasons, we affirm.

* * *

On April 14, 2000, Dwain Grimmett, an officer with the Opelousas City Police Department, saw a red Jaguar driving slowly down a street. Officer Roylis Gallow was on the scene, as well. Neither the driver of the vehicle nor the Defendant, who was a passenger in the vehicle, wore seatbelts. When the officer pulled the vehicle oyer, he saw Mr. Jason put a small plastic bag into his mouth. He then removed the plastic bag from his mouth and put it into his pocket. The officer observed him chew something and when asked what he was chewing, Mr. Jason said he was eating several rocks of crack cocaine and handed the officer the plastic bag, which was later determined to have contained residue of crack cocaine.

On June 16, 2000, Mr. Jason was charged, by bill of information, with one count of possession of a controlled dangerous substance, Schedule II, cocaine, in violation of La.R.S. 40:967(C). He filed a motion to suppress the evidence, which the trial court heard and denied in open court on September 17, 2003. Immediately following the hearing, Mr. Jason entered an Alford plea of guilty to the one count of possession of cocaine, after which the trial court sentenced him to three years at hard labor but deferred the imposition of the sentence until Mr. Jason could perfect an appeal. However, he failed to file an appeal within the time delays the law allows. Nonetheless, this court granted an out-of-time appeal on October 1, 2003.

Mr. Jason appeals, alleging that the trial court did not comply with La.Code Crim.P. art. 894.1’s requirements when it sentenced him, resulting in an excessive sentence; and that the trial court erred when it did not observe the required three-day delay by sentencing him immediately following the guilty plea.

| sErroRS Patent

In accordance with La.Code Crim.P. art. 920, we review all appeals for errors patent on the face of the record. After reviewing the record, we find none.

Excessive Sentence

In his first two assignments of error, Mr. Jason alleges that the trial court did not take into consideration mitigating factors as La.Code Crim.P. art. 894.1 requires, resulting in a constitutionally excessive sentence. Louisiana Code of Criminal Procedure Article 881.1(E) provides that the failure to file or make a timely motion to reconsider sentence precludes a defendant from objecting to the sentence on appeal. Mr. Jason did not make or file a motion to reconsider his sentence. Nevertheless, we will briefly address his allegation that the sentence is excessive under the circumstances.

He pled guilty to possession of cocaine in violation of La.R.S. 40:967(C). Louisiana Revised Statutes 40:967(0(2) provides for a maximum term of imprisonment of five years, with or without hard labor. Additionally, the offender may be fined up to five thousand dollars. In the present case, Mr. Jason was sentenced to three years at hard labor.

In State v. Hopkins, this court held:

Article 1, § 20 of the Louisiana Constitution of 1974, prohibits, “cruel, excessive, or unusual punishment.” A sentence that falls within the statutory limits may nevertheless be excessive under the circumstances. To constitute an excessive sentence this court must find that the penalty is so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no measurable contribution to acceptable penal goals and therefore, is nothing more than needless imposition of pain and suffering. The trial judge is given wide discretion in imposing a sentence, and a sentence imposed within statutory limits will not be deemed excessive lacking a manifest abuse of discretion.
The Legislature has provided criteria to aid a sentencing court in determining whether a sentence of imprisonment should be imposed and whether suspension of a sentence or probation is warranted. Paragraph (c) of Article 894.1 requires the court to state for the record the considerations taken into account and the factual basis used when | imposing a sentence. The trial court need not refer to every aggravating and mitigating circumstance in order to comply with the article. However, the record must affirmatively reflect that adequate consideration was given to the codal guidelines in particularizing the defendant’s sentence.
If there is an adequate factual basis for the sentence contained in the record, the trial court’s failure to articulate every circumstance listed in Article 894.1 will not require a remand for resentenc-ing.

Mr. Jason argues that “the trial judge failed to adequately consider all of the mitigating factors ... in imposing a mid range sentence which is normally reserved for the more serious offenders.” Specifically, he argues that the trial court should have considered, as mitigating factors, the fact that his was a victimless crime and that he was only twenty-seven years old at the time he pled guilty.

Following a proper Boykinization, at the sentencing portion of the hearing, the trial court stated:

In connection herewith, the court notes that this defendant has a prior conviction, by his own admission, a prior conviction of cocaine, a prior drug offense, that this particular offense is another drug offense dealing with possession of cocaine. The court finds that a lesser sentence would — under Article 894.1, the special conditions in this matter, the court feels that a lesser sentence would deprecate the seriousness of the defendant’s crime, that the defendant is in need of correctional treatment, and perhaps drug treatment, in a custodial environment that can be provided most effectively by his commitment to an institution. The court notes that this is a second offense possession of marijuana [sic] charge, and as a result thereby, the court finds those factors pertinent to this court’s sentence and, therefore, the court sentences the defendant to serve three years at hard labor, with credit for time served. This sentence is not enhanced, he is entitled to diminution of sentence^]

In State v. Freeman, the defendant was sentenced to three years at hard labor for possession of cocaine. Mr. Freeman argued that the sentence was excessive; however, the fifth circuit affirmed it. He was a second time felony offender; his first offense being distribution of marijuana. In his case, the fifth circuit stated:

|4We conclude that the defendant’s sentence of three years in this case is not constitutionally excessive. A person convicted of possession of cocaine may be imprisoned for up to five years, with or without hard labor, and may be sentenced to pay a fine of not more than five thousand dollars. LSA-R.S. 40:967C (2). The court could therefore have imposed a much greater penalty. Defendant argues that justice would be better served if he were given a suspended sentence, considering that at the time of his conviction he had a job and a good relationship with his son. However, defendant was given such an opportunity when he was placed on probation for his prior conviction.

In the instant case, Mr. Jason has failed to show how the trial court abused its considerable discretion when it sentenced him to a mid range sentence of three years at hard labor. This was Mr. Jason’s second conviction for the same offense. The trial court could have sentenced him to a much harsher term as well as a fine of up to five thousand dollars. This court does not find that the sentence is grossly disproportionate to the severity of the offense nor is it shocking to our sense of justice. Accordingly, this assignment is without merit.

Sentencing Delay

Mr. Jason’s final assignment of error involves La.Code Crim.P. art. 873’s delay requirements for imposing sentence. Louisiana Code of Criminal Procedure Article 873 provides:

If a defendant is convicted of a felony, at least three days shall elapse between conviction and sentence. If a motion for a new trial, or in arrest of judgment, is filed, sentence shall not be imposed until at least twenty-four hours after the motion is overruled. If the defendant expressly waives a delay provided for in this article or pleads guilty, sentence may be imposed immediately.

(Emphasis added.)

Mr. Jason argues that “[njowhere in the transcript of the sentencing is there any indication of a waiver of the three day delay for sentencing after conviction, nor the twenty-four hour delay after ruling on the Motion to Suppress, which is required by IsLSA C. Cr. P. Article 873[.j” However, he entered a plea of guilty under North Carolina v. Alford, on September 17, 2003. Article 873 expressly states that if a defendant pleads guilty, the court may sentence him immediately. Further, Article 873 has no application to a motion to suppress. Thus, Mr. Jason’s argument that the trial court erred when it sentenced him within twenty-four hours after its denial of his motion to suppress is meritless.

CONCLUSION

We find no abuse of discretion in the trial court’s sentence of three years at hard labor, nor do we find the sentence to be excessive. Further, the trial court did not violate La.Code Crim.P. Art. 873 by sentencing the Defendant immediately after he pled guilty. Accordingly, we affirm the trial court’s judgment.

AFFIRMED.

      . 96-1063, p. 6 (La.App. 3 Cir. 3/5/97), 692 So.2d 538, 541 (citations omitted).

      . 97-1115 (La.App. 5 Cir. 12/29/98), 727 So.2d 630.

      . Id. at 636.

      . 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).


author: h PICKETT, Judge.

text:
    Phillip Bruce JACKSON v. SAFEWAY INSURANCE COMPANY OF LOUISIANA, et al.
    No. 2004-211.
    Court of Appeal of Louisiana, Third Circuit.
    June 30, 2004.

      Kerry L. Spruill, Marksville, LA, for Plaintiff/Appellee: Phillip Bruce Jackson.
    Ray F. Lucas, III, Lafayette, LA, for Defendants/Appellants: Safeway Ins. Co. of Louisiana Russell Lee Mouton.
    Court composed of SYLVIA R. COOKS, ELIZABETH A. PICKETT, and BILLY HOWARD EZELL, Judges.
   h PICKETT, Judge.

FACTS

This case arises from an automobile accident that occurred on April 4, 2002. On that date, Phillip Bruce Jackson was a guest passenger in a vehicle being driven by Carl K. Harris. Their vehicle was struck by a vehicle being operated by Russell Lee Mouton. At the time of the accident, Mr. Mouton’s vehicle was insured by Safeway Insurance Company of Louisiana (Safeway). Mr. Jackson sustained personal injuries as a result of the accident.

Mr. Jackson filed a Petition for Damages naming Mr. Mouton and Safeway as defendants. A trial on the merits was held on October 24, 2003. The parties entered into a stipulation whereby liability was fully assessed to the defendants. The only issues presented at trial were the nature and extent of Mr. Jackson’s injuries and the amount of damages to which he is entitled.

At the conclusion of the trial, the trial court issued oral reasons for ruling. The trial court awarded Mr. Jackson $10,000.00 in damages. A judgment was signed on November 6, 2003. It is from this judgment the defendants appeal.

ASSIGNMENTS OF ERROR

The appellants set forth three assignments of error:

1) The trial court erred in not finding Philip Bruce Jackson failed to mitigate his damages.
2) The trial court erred in finding a causal connection between Phillip Bruce Jackson’s subjective complaints and the April 4, 2002 automobile accident.
3) The trial court erred in awarding $10,000.00 in damages to Philip Bruce Jackson.

| ¿DISCUSSION

The first two assignments of error relate to findings of fact by the trial court which are reviewed by this court under the manifest error standard of review. An appellate court cannot set aside the findings of fact by the trial court unless those findings are clearly wrong or manifestly erroneous. Rosell v. ESCO, 549 So.2d 840 (La.1989). An appellate court must determine not whether the trier of fact was right or wrong, but whether the fact finder’s conclusion was a reasonable one. Lyons v. Bechtel Corp., 00-0364 (La.App. 3 Cir. 12/27/00), 788 So.2d 34, writ denied, 01-282 (La 3/23/01), 787 So.2d 996.

The appellants argue that the plaintiff failed to carry his burden of proof by establishing it is more probable than not that his subjective complaints were related to the accident at issue.

The Louisiana Supreme Court discussed the plaintiffs burden of proof on the issue of causation in the personal injury case Maranto v. Goodyear Tire & Rubber Co., 94-2603, 94-2615, p. 3 (La.2/20/95), 650 So.2d 757, 759:

In a personal injury suit, plaintiff bears the burden of proving a causal relationship between the injury sustained and the accident which caused the injury. American Motorist Insurance Co. v. American Rent-All, Inc., 579 So.2d 429 (La.1991); Aucoin v. State Farm Mut. Auto. Ins. Co., 505 So.2d 993 (La.App. 3d Cir.1987); Richard v. Walgreen’s Louisiana Co., 476 So.2d 1150 (La.App. 3d Cir.1985). Plaintiff must prove causation by a preponderance of the evidence. Morris v. Orleans Parish School Bd., 553 So.2d 427 (La.1989). The test for determining the causal relationship between the accident and subsequent injury is whether the plaintiff proved through medical testimony that it is more probable than not that the subsequent injuries were caused by the accident. Mart v. Hill, 505 So.2d 1120 (La.1987); Villavaso v. State Farm Mut. Auto. Ins. Co., 424 So.2d 536 (La.App. 4th Cir.1982).

At the trial, the plaintiff testified that:

He started feeling pain in his lower back and in his neck about two days after the accident. He testified that, while in the military, he |3was required to lift equipment weighing 300 pounds which caused him to suffer back pain but that the pain stopped when he was discharged in 1994. The plaintiff testified that he treated the back pain from the accident in question with over-the-counter medication such as Extra Strength Tylenol. According to the plaintiff, the neck pain went away after a couple of months but the back pain still persisted after June 2002. The plaintiff continued to self-treat the back pain with heating pads, rest, and by not lifting. The plaintiff testified that as a result of the back pain, he can only sit in one particular position for thirty minutes at a time.

On February 25, 2003, the plaintiff went to the emergency room at Bunkie General Hospital to seek treatment for his back pain. X-rays were performed which showed some straightening of the normal lordotic curve. He was given Naprosyn, Vicodin, and a heating pad, and was referred to his physician, Dr. Donald L. Hines. The plaintiff saw Dr. Hines the next day. Dr. Hines diagnosed the plaintiff with a soft tissue injury and prescribed anti-inflammatory medication. The plaintiff was seen by a nurse practitioner, Mary Ellen Hood, when he returned to the clinic again on March 14, 2003. He complained of back pain at this visit. Ms. Hood prescribed Bextra for two weeks. The plaintiff returned to the clinic on May 1, 2003, with continued complaints of back pain. He requested an MRI be performed if the pain persisted. Ms. Hood prescribed Dar-vocet, a non-narcotic pain reliever. The plaintiffs last visit was on August 15, 2003. At this time he stated the.back pain was gone. Ms. Hood advised the plaintiff to continue taking muscle relaxants and apply heat as needed. She prescribed Soma, a muscle relaxant, to take as needed. The plaintiff testified that he did get better after seeing Dr. Hines, but that from time to time he still experiences back pain.

Cynthia Malveaux, the plaintiffs girlfriend, testified that:

[S]he had been dating the plaintiff for the last two years and usually saw him five days a week. Ms. Malveaux testified that the plaintiff sustained back injuries in the accident in question and also had some neck pain following the accident that lasted about' three months. |4Shé further testified about the discomfort the plaintiff experienced as a result of the pain and his inability to sit for long periods of time, do outside work, and lift heavy objects.

Whether an accident caused a person’s injuries is a question of fact which should not be reversed on appeal absent manifest error. Mart v. Hill, 505 So.2d 1120 (La.1987). The plaintiffs evidence was unrefuted. The trial court specifically noted that it found the testimony of the plaintiff and his witnesses to be credible. The trial court determined the accident caused the injuries at issue and the evidence supports that finding. We find no merit in the appellant’s argument that the plaintiff failed to prove causation.

We also find no merit in the appellant’s argument that Phillip Bruce Jackson failed to mitigate his damages. The accident that caused the plaintiffs neck and back injuries occurred on April "4, 2002. The neck pain resolved itself within a few months, but the back pain persisted. The plaintiff continued to' self-treat his back pain by using over-the-counter drugs because he had started working a new shift and did not want to miss work. The plaintiff did not seek professional medical treatment for the back pain until February 25, 2003. When asked whether the delay in treatment would have adversely affected the plaintiffs recovery from this type of injury,. Dr. Hines testified as follows:

I don’t think any serious complications resulted because he didn’t seek treatment because, you know, people take Aleve and Advil and 'Tylenol and all of those things all the time, use Ben-Gay and all kind of home remedies and treat, you know; minor and moderate injuries like that at home without any serious side effects or complications.

The record .supports that the plaintiffs delay in seeking professional medical treatment was not unreasonable and did not aggravate the injury. This assignment of error is without merit.

I.Jn their third assignment of error, the appellants argued the trial court erred in awarding Phillip Bruce Jackson $10,000.00 in damages. A trial court' has great discretion in awarding damages in a personal injury suit. An appellate court should rarely disturb an award of general damages. Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994).

Phillip Bruce Jackson suffered a neck and lower back injury from an auto accident that occurred on April 4, 2002. The neck injury resolved itself within a few months of the accident, but the back pain persisted. As a result of the back injury, the plaintiff has been unable to sit or lie in one position for more than thirty minutes, do outdoor work, or lift anything heavy. He self-treated until he was seen at the emergency room on February 25, 2003. He saw Dr. Hines and followed up with the nurse practitioner until August 2003. Although his back improved, at the time ofi the trial the plaintiff still occasionally suffered from back pain.

The trial court awarded the plaintiff damages in the amount of $10,000.00, which included the medical expenses of $707.85. . The trial court assessed costs to the defendant which included Dr. Hines’ deposition fee of $350.00 and $85.95 for the cost of the court reporter.

Considering the evidence, we do not find the' trial court abused its discretion in awarding damages of $10,000.00.

The appellee filed an Answer to this appeal on December 17, 2003, seeking damages for a frivolous appeal pursuant to La.Code Civ.P. art. 2164. We decline to award damages for a frivolous appeal in this matter.

|(jDECREE

The judgment of the trial court is affirmed in all respects. The appellee’s request for damages pursuant to La.Code Civ.P. art. 2164 is denied. The costs of this appeal are assessed to the appellant.

AFFIRMED.


author: hPICKETT, Judge.

text:
    Norman E. WELCH, Jr. v. STERNE, AGEE & LEACH, INC., et al.
    No. 2004-218.
    Court of Appeal of Louisiana, Third Circuit.
    June 30, 2004.

      Gregory Scott Erwin, Baton Rouge, LA, for Plaintiff/Appellant: Norman E. Welch, Jr.
    Edward Frances Harold, Fisher & Phillips LLP, New Orleans, LA, for Defendant/Appellee: Sterne, Agee & Leach, Inc., G. Bradley Harrison.
    Court composed of SYLVIA R. COOKS, ELIZABETH A. PICKETT, and BILLY HOWARD EZELL, Judges.
   hPICKETT, Judge.

Norman E. Welch, Jr., appeals a judgment of the trial court granting a motion to stay the proceedings in his suit against the defendants pending arbitration.

FACTS

Norman Welch, Jr., was forced into early retirement from his job at International Paper Company. He received a severance payment in the amount of $203,458.51. He contacted G. Bradley Harrison, a broker with Sterne, Agee & Leach, Inc., (Sterne) an Alabama corporation. Welch invested the entire amount with Sterne in July 1999.

On December 8, 2000, Welch executed a Client Agreement sent to him by Harrison. The agreement contained two provisions relevant to this appeal. Paragraph 22 contains an arbitration clause, reproduced here (bold in original):

22. ARBITRATION
• ARBITRATION IS FINAL AND BINDING ON THE PARTIES.
• THE PARTIES ARE WAIVING THEIR RIGHT TO SEEK REMEDIES IN COURT, INCLUDING THE RIGHT TO A JURY TRIAL.
• PRE-ARBITRATION DISCOVERY IS GENERALLY MORE LIMITED THAN AND DIFFERENT FROM COURT PROCEEDINGS.
• THE ARBITRATORS’ AWARD IS NOT REQUIRED TO INCLUDE FACTUAL FINDINGS OR LEGAL REASONING AND ANY PARTY’S RIGHT TO APPEAL OR TO SEEK MODIFICATION OF RULINGS BY THE ARBITRATORS IS STRICTLY LIMITED.
• THE PANEL OF ARBITRATORS WILL TYPICALLY INCLUDE A MINORITY OF ARBITRATORS WHO WERE OR ARE AFFILIATED WITH THE SECURITIES INDUSTRY.
Any controversy: (1) arising out of or relating to any of my accounts maintained individually or jointly with any other party, in any capacity, with you; or (2) relating to my transactions or accounts with any of your predecessor firms by merger, acquisition or any other business combination from the inception of such accounts; or |P(3) with respect to transactions of any kind executed by, through or with you, your officers, directors, agents and/or employees; or (4) with respect to this agreement or any other agreements entered into with you relating to my accounts, or the breach thereof, shall be resolved by arbitration conducted only at the NYSE, NASD, or AMEX or any self-regulatory organization (“SRO”) subject to the jurisdiction of the Securities and Exchange Commission and pursuant to the arbitration procedures then in effect of any such exchange or SRO as I may elect. If I do not make such election by registered mail addressed to you at your main office within 5 days after demand by you that I make such an election, then you will have the right to elect the arbitration tribunal of your choice. Judgment upon any award rendered by the arbitrators may be entered in any court having jurisdiction thereof. [Remainder omitted.]

(The omitted text relates to class actions, which is not relevant in this proceeding.)

The second pertinent clause is in Paragraph 23, which specifies that the contract will be governed by the laws of the state of Alabama “without giving effect to the choice of law or conflict of laws provisions thereof.”

In January 2002, Welch became dissatisfied with Sterne’s investments and its failure of Harrison to answer his queries and withdrew all of the remaining money from his account. On May 3, 2003, Welch filed a Petition for Damages, naming as defendants Sterne and Harrison. He claimed that Harrison made misrepresentations about the performance and warranties of certain investments which led him to lose a large portion of his investment. Sterne and Harrison responded by filing an Exception of Prematurity or Alternative Motion to Stay Pending Arbitration. The trial court held a hearing on the Exception/Motion on September 19, 2003. The trial court granted the motion to stay and dismissed as moot the exception of prematurity by judgment dated October 7, 2003. Welch now appeals that judgment.

ASSIGNMENTS OF ERROR

Welch alleges two assignments of error:

|gl. The Trial Court erred in its conclusion that federal law as expressed in the Federal Arbitration Act (FAA), 9 U.S.C. § 4, preempts Alabama state law of contract interpretation concerning the retroactive application of an agreement to arbitrate.
2. The Trial Court erred in staying the district court proceedings and forcing the appellant Welch to proceed in arbitration.

DISCUSSION

Both parties agree that Alabama law governs their relationship by the terms of Paragraph 23 of the Client Agreement. Welch argues that the arbitration clause that he signed December 8, 2000, is not retroactive to the date he invested his money with Sterne, July 1999, citing Alabama law of contract interpretation. Sterne argues in support of their position that the Federal Arbitration Law preempts Alabama’s law of contract interpretation, and the arbitration clause is retroactive under federal law. Alternatively, they argue that even if Alabama law is not preempted, the rules of contract interpretation support a finding that the arbitration clause is retroactive. The trial court found that federal law applies and stayed the matter pending arbitration.

We begin our review of this issue with a recitation of basic Alabama law. The Supreme Court of Alabama laid out the general provisions regarding the interpretation of arbitration agreements and contracts in Homes of Legend, Inc. v. McCollough, 776 So.2d 741, 745-46 (Ala.2000) (footnote omitted):

Section 2 of the FAA, 9 U.S.C. § 2, provides in pertinent part:
“A written provision in ... a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or' transaction ... shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.”
|4Section 2 (except for certain employment contracts, see 9 U.S.C. § 1) has the effect of preempting conflicting Alabama law, in particular Ala.Code 1975, § 8-1-41(3), and thereby making enforceable a predispute arbitration agreement in a contract evidencing a transaction that involves interstate commerce. See Allied-Bruce Terminix Companies, Inc. v. Dobson, 513 U.S. 265, 273-74, 277, 281, 115 S.Ct. 834, 130 L.Ed.2d 753 (1995); Crown Pontiac, Inc. v. McCarrell, 695 So.2d 615, 617 (Ala.1997). As the United States Supreme Court explained in Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 24-25, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983):
“Section 2 is a congressional declaration of a liberal federal policy favoring arbitration agreements, notwithstanding any state substantive or procedural policies to the contrary. The effect of the section is to create a body of federal substantive law of arbitrability, applicable to any arbitration agreement within the coverage of the Act.... The Arbitration Act establishes that, as a matter of federal law, any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration, whether the problem at hand is the construction of the contract language itself or an allegation of waiver, delay, or a like defense to arbitrability.”
(Emphasis added.) Questions of arbi-trability — that is, whether the parties agreed to submit their particular dispute to arbitration — “must be addressed with a healthy regard for the federal policy favoring arbitration,” id. at 24, 103 S.Ct. 927; but, in determining whether the parties agreed to arbitrate a dispute, this Court “should apply- ordinary state-law principles that govern the formation of contracts.” First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995); accord Quality Truck & Auto Sales, Inc. v. Yassine, 730 So.2d 1164, 1167-68 (Ala.1999). Consequently, “in applying general state-law principles of contract interpretation to the interpretation of an arbitration agreement within the scope of the Act, due regard must be given to' the federal policy favoring arbitration, and ambiguities as to the scope of the arbitration clause itself resolved in favor of arbitration.” Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ., 489 U.S. 468, 475-76, 109 S.Ct. 1248, 103 L.Ed.2d 488 (1989) (citation omitted).
However, the federal policy favoring arbitration does not require this Court to ignore the contractual intentions of the parties. See Volt Information Sciences, Inc., 489 U.S. at 478-79[, 109 S.Ct. 1248]; Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U.S. 52, 57, 115 S.Ct. 1212, 131 L.Ed.2d 76 (1995). Instead, “[t]his Court has clearly and consistently held that a party cannot be required to submit to arbitration any dispute | she has not agreed to submit.” Ex parte Stallings & Sons, Inc., 670 So.2d 861, 862 (Ala.1995) (internal quotation marks and citations omitted); accord AT & T Technologies, Inc. v. Communications Workers of America, 475 U.S. 643, 648, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986). The FAA “simply requires courts to enforce privately negotiated agreements to arbitrate, like other contracts, in accordance with their terms,” and “parties are generally free to structure their arbitration agreements as they see fit.” Volt Information Sciences, Inc., 489 U.S. at 478-79[, 109 S.Ct. 1248]. Accordingly, “as with any other contract, the parties’ intentions control, but those intentions are generously construed as to issues of arbitra-bility.” Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 626, 105 S.Ct. 3346, 87 L.Ed.2d 444 (1985).
Under general Alabama rules of contract interpretation, the intent of the contracting parties is discerned from the whole of the contract. See Loerch v. National Bank of Commerce of Birmingham, 624 So.2d 552, 553 (Ala.1993). Where there is no indication that the terms of the contract are used in a special or technical sense, they will be given their ordinary, plain, and natural meaning. See Ex parte Dan Tucker Auto Sales, Inc., 718 So.2d 33, 36 (Ala.1998). If the court determines that the terms are unambiguous (susceptible of only one reasonable meaning), then the court will presume that the parties intended what they stated and will enforce the contract as written. See id. at 36; Voyager Life Ins. Co. v. Whitson, 703 So.2d 944, 948 (Ala.1997). On the other hand, if the court determines that the terms are ambiguous (susceptible of more than one reasonable meaning), then the court must use established rules of contract construction to resolve the ambiguity. See Whitson, 703 So.2d at 948. Under those established rules of contract construction, where there is a choice between a valid construction and an invalid construction the court has a duty to accept the construction that will uphold, rather than destroy, the contract and that will give effect and meaning to all of its terms. See id. at 948-49; Sullivan, Long & Hagerty v. Southern Elec. Generating Co., 667 So.2d 722, 725 (Ala.1995). Additionally, “if there exists inconsistency between two clauses of a contract which cannot be reconciled, the inconsistency must be resolved in favor of the prior clause, unless an intention to thereafter qualify is plainly expressed.” City of Fairhope v. Town of Daphne, 282 Ala. 51, 58, 208 So.2d 917, 924 (1968); see Whitson, 703 So.2d at 949. Last, if all other rules of contract construction fail to resolve the ambiguity, then, under the rule of contra proferen-tem, any ambiguity must be construed against the drafter of the contract. See Lackey v. Central Bank of the South, 710 So.2d 419, 422 (Ala.1998).

As the Alabama supreme court has made clear, while the FAA does not necessarily preempt state laws concerning contract interpretation, any ambiguity | fishould be resolved in favor of arbitrability. Thus, preemption is not really an issue. Alabama law simply recognizes that arbitration agreements in contracts involving interstate commerce must be construed in light of the federal policy which favors arbitration.

Applying the facts in the instant case to these principles, the first critical inquiry is whether or not we are faced with a predispute arbitration clause. There is no doubt that this transaction involves interstate commerce. The contract, however, was not entered into between the parties until seventeen months after the misrepresentations which Welch alleges in his petition. Thus, we must apply Alabama contract law to determine if the arbitration clause is retroactive.

In Kenworth of Dothan, Inc. v. Bruner-Wells Trucking, Inc., 745 So.2d 271 (Ala.1999), the Alabama supreme court was faced with the issue of the retroactivity of an agreement to arbitrate. When the plaintiff purchased a used truck from the defendant, the buyer’s order did not contain an arbitration agreement. Soon afterward, the plaintiff purchased reflectors for the truck, and the invoice for the purchase included an agreement to arbitrate “[a]ny controversy or claim arising out of or relating to this Invoice or otherwise relating in any fashion to the purchase or sale of equipment, parts or service thereon[.]” Id. at 273. Later, the plaintiff sued the defendant alleging fraud in the sale of the truck. The defendant sought to compel arbitration on the basis of the arbitration agreement in the invoice for the reflectors. The supreme court held that the arbitration clause contemplated a claim arising out of the sale of the reflectors, not the truck, and found that arbitration was not mandated. In reaching their conclusion, the court made the following statement:

We recognize the broad language of the arbitration provision before us, specifically the phrase “relating in any fashion to the purchase |7or sale of equipment, parts or service thereon.” In reviewing arbitration provisions, we apply contract principles. Thus, we must determine if there was a “meeting of the minds.” The dispute in this case did not arise from the purchasd of the reflectors; it arose from the purchase of the truck. Arguably, the dispute related in some fashion to thé purchase of the reflectors, but we must draw a line somewhere in order to prevent the definition of the word “related” from being stretched beyond all legal recognition. In other words, there must be some legal and logical nexus between the source of the dispute and the arbitration provision at issue in order for a court to say that the parties intended a retroactive application of that provision. The word “related,” as used in such an arbitration provision, should not be defined to include any form of relation, even with the words “in any fashion” attached. For example, if in the future Bruner-Wells purchases another set of emergency reflectors for a truck, would that second purchase be related to the purchase of the emergency reflectors in this case? Certainly it would involve the same 'two parties engaged in the first transaction, and it would involve the same kind of reflector. Is there not a relationship there? Yes, but it is not such a close relationship that one reading the arbitration clause in the first invoice would assume or understand that it covered disputes arising out of the second purchase of reflectors. That is why retroactive agreements to arbitrate require closer scrutiny than agreements calling for arbitration of disputes relating to future activities.
One must conclude, by logical inference, that when the parties engaged in the activities involved in this case they had no intention of applying an arbitration agreement that did not yet exist. However, if the arbitration clause contains retroactive time-specific language, e.g., a phrase reading “this agreement applies to all transactions occurring before or after this agreement,” then we may apply the arbitration provision to disputes relating to past events. Or, if the arbitration clause contains language stating that it applies to “all transactions between us” or “all business with us,” then we may apply the arbitration clause retroactively. The arbitration clause in this case contains no such language. If Bruner-Wells had a dispute with Kenworth concerning the emergency reflectors and that dispute arose after the purchase of the reflectors, then Bruner-Wells would be compelled to arbitrate if the invoice be deemed a binding contract. However, the emergency reflectors are merely one piece of evidence in Bruner-Wells’s overall dispute with Kenworth; they are not at the heart of the dispute. The reflectors are akin to a peripheral issue; their sale did not precipitate the dispute, because the sale came after the transaction that has led to the dispute. In applying such an analysis, we cannot conclude that the arbitration provision on the invoice relating to the reflectors would cover a dispute over the previous purchase of the used truck.

Id. at 275-276. (Emphasis added.)

IsThe clause at issue in the instant case states that arbitration applies to:

Any controversy: (1) arising out of or relating to any of my accounts maintained individually or jointly with any other party, in any capacity, with you; or .... (3) with respect to transactions of any kind executed by, through or with you, your officers, directors, agents and/or employees; or (4) with respect to this agreement or any other agreements entered into with you relating to my accounts, or the breach thereofi.]

The trial court found that given the dynamic nature of securities, and the federal policy favoring arbitrability, this language was broad enough to apply retroactively. This decision is consistent with Alabama law.

We find no error in the trial court’s determination that the arbitration clause contained in the Client Agreement is retroactive and is applicable to the dispute at issue. The trial court’s order of October 7, 2003, which granted the defendant’s Motion to Stay Proceeding Pending Arbitration is affirmed. All costs of this appeal are cast against the plaintiff.

AFFIRMED.