author: WELCH, J.

text:
    Frank H. HUDSON v. EAST BATON ROUGE PARISH SCHOOL BOARD.
    No. 2005 CA 1380.
    Court of Appeal of Louisiana, First Circuit.
    June 21, 2006.
    Rehearing Denied Sept. 19, 2006.
    Frank H. Hudson, Baton Rouge, In Proper Person Plaintiff — Appellant Frank H. Hudson.
    Karen D. Murphy, Baton Rouge, for Defendant — Appellee East Baton Rouge Parish School Board.
    Before: WHIPPLE, McCLENDON, and WELCH, JJ.
   WELCH, J.

| .¿The plaintiff in this case was employed by the East Baton Rouge Parish School Board and incurred an on-the-job injury on September 15, 1992. He received workers’ compensation (temporary total disability) benefits from January 11, 1993 through January 11, 1995. He returned to work in January 1995 at his pre-injury position (bus mechanic) and continued earning his full pre-injury wages, until he was terminated from his employment on September 11, 1998. On October 30, 1998, the plaintiff filed the 1008 disputed claim form seeking supplemental earnings benefits, which forms the basis of this appeal. The workers’ compensation judge granted the defendant’s exception of prescription and dismissed plaintiffs claims. For the following reasons, that judgment is affirmed.

Louisiana Revised Statute 23:1209(A) governs the prescriptive period for claims for supplemental earnings benefits, giving a claimant three years from the date of the last payment of benefits to bring a claim for supplemental earnings benefits.

We have thoroughly reviewed the record and find that the evidence fully supports the workers’ compensation judge’s conclusion that the plaintiffs claim for supplemental earnings benefits was filed more than three years after the date he received his last workers’ compensation benefits payment. Therefore, we affirm the judgment granting the defendant’s exception of prescription and dismissing plaintiffs suit with prejudice.

|3We also note that we thoroughly reviewed the transcript of the hearing in this matter and find that the workers’ compensation judge was more than lenient and generous with the plaintiff, who was unrepresented, by explaining the law and giving plaintiffs claims every benefit of the doubt. On appeal, plaintiff raises nothing new for review, by way of argument or otherwise, which has not already been fully argued and considered by the workers’ compensation judge. It is simply inescapable under the facts of this case, and for the reasons clearly explained at the hearing on the exception, that plaintiffs claim has prescribed.

Therefore, we affirm the judgment of the workers’ compensation judge in accordance with Rule 2-16.2 A(2), (4), and (5) of the Uniform Rules of Louisiana Courts of Appeal. All costs of this appeal are assessed to the plaintiff.

AFFIRMED.

      . At the hearing on the exception and again on appeal, the plaintiff makes reference to another 1008 disputed claim form that he asserts was timely filed. The workers’ compensation judge made every effort to ascertain the correctness of plaintiff's assertions, even taking a recess to search the court's records. This search revealed that plaintiff had filed a disputed claim form in 1997, which had been dismissed without prejudice on June 24, 1997. The workers’ compensation judge generously considered, for the sake of argument and giving plaintiff's claims every benefit of the doubt, that even if that claim interrupted prescription, it was not an SEB claim; therefore, plaintiff would have had one year from the date of the dismissal of that claim, or until June 24, 1998, to timely file another claim. Hence, the judge found that even giving plaintiff’s claims the most lenient and generous interpretations, they were, nonetheless, prescribed.


source: Caselaw Access Project

author: McClendon, j.

license: Public Domain

text:
    VISHAL HOSPITALITY, LLC, Ravi S. Josi and Poonam R. Josi v. CHOICE HOTELS INTERNATIONAL, INC.
    No. 2004 CA 0568R.
    Court of Appeal of Louisiana, First Circuit.
    June 28, 2006.
    Rehearing Denied Sept. 19, 2006.

      William David Kiesel, Baton Rouge, Counsel for Plaintiffs/Appellee Vishal Hospitality, LLC, Ravi S. Josi, Poonam R. Josi.
    Justin M. O’Brien, Michael D. Ferachi, Baton Rouge, Counsel for Defendant/Appellant Choice Hotels International, Inc.
    Before: GUIDRY, GAIDRY, and McClendon, jj.
   McClendon, j.

[¡¡This matter comes to us on remand from the Louisiana Supreme Court following its decision in Aguillard v. Auction Management Corp., 04-2804 (La.6/29/05), 908 So.2d 1. Finding that the arbitration clause in this matter is enforceable, we vacate the judgment of the trial court insofar as it grants a preliminary injunction enjoining the demand for arbitration, and we remand for further proceedings consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

Between late 1998 and late 2003, Vishal Hospitality, LLC, a Louisiana limited liability company, and its shareholders, Ravi S. Josi and Poonam R. Josi, (hereinafter collectively referred to as “Vishal”) operated a hotel in Gonzales, Louisiana, as a Quality Inn franchise. Quality Inn is a trademark of Choice Hotels International, Inc., a Delaware corporation with its principal place of business in Maryland. On November 10, 2003, Choice filed a demand for arbitration with the American Arbitration Association (AAA), seeking to enforce certain provisions under a franchise agreement it allegedly executed with Vishal on November 30,1998.

On November 26, 2003, Vishal filed a petition for injunctive relief and declaratory judgment, naming as defendants Choice and the AAA. Vishal sought to enjoin Choice and the AAA from instituting and conducting any arbitration proceedings pursuant to the alleged franchise agreement. On December 15, 2003, the trial court heard Vishal’s petition for preliminary injunction and granted the preliminary injunction. Choice appealed, and this court affirmed the trial court’s judgment finding the arbitration clause adhesionary and unenforceable. Thereafter, Choice sought a writ of | scertiorari or review from the supreme court, which was granted with the following language: “Granted and remanded to Court of Appeal, First Circuit, for reconsideration in light of Aguillard v. Auction Management Corporation, 04-2857 (La.6/29/05), 908 So.2d 1.”

DISCUSSION

The supreme court granted writs in Aguillard to resolve a split among the circuits regarding the enforceability of arbitration agreements contained within consumer standard form contracts under a “contract of adhesion” analysis. The court in Aguillard adopted a liberal policy favoring arbitrability. Aguillard, 04-2804 at p. 1, 908 So.2d at 3-4. The court noted at the outset that Louisiana law favors arbitration, see LSA-R..S. 9:4201, which echoes the Federal Arbitration Act (FAA), 9 U.S.C. § 1, et seq., and United States Supreme Court jurisprudence. Aguillard, 04-2804 at pp. 6-8, 908 So.2d at 7-8. The court further observed that the United States Supreme Court has made it clear that the substantive provisions of the FAA preempt state law and govern all written arbitration agreements in contracts connected to transactions involving or affecting interstate commerce. Aguillard, 04-2804 at p. 8, 908 So.2d at 8. Our supreme court held that the real issue in a contract of adhesion analysis is whether a party truly consented to all the printed terms of the contract. In so holding, the court stated:

[A] contract is one of adhesion when either its form, print, or unequal terms call into question the consent of the non-drafting party and it is demonstrated that the contract is unenforceable, due to lack of consent or error, which vitiates consent. Accordingly, even if a contract is standard in form and printed in small font, if it does not call into question the non-drafting party’s consent and if it is not demonstrated that the non-drafting party did not consent or his consent is vitiated by error, the contract is not a contract of adhesion.

Aguillard, 04-2804 at p. 12 (La.6/29/05), 908 So.2d at 10-11.

In Aguillard, the court found that there was not “such a difference in bargaining positions between the parties so as to justify the application of the principle of contract of adhesion to the arbitration clause,” and that “the underlying transaction, a real estate auction, does not indicate that it was such a necessary transaction to establish the plaintiff was compelled to enter it.” The court continued:

[E]ach party was strictly limited to arbitration for dispute resolution, and if the plaintiff did not agree with the terms of arbitration or the terms in general, he could have either attempted to negotiate the terms of the contract or refused to participate in the auction.
We find the court of appeal erred in declaring the whole contract governing the terms and conditions of the auction adhesionary and lacking in mutuality. The only issue before the court was the enforceability of the arbitration clause as this matter came before the court through the defendants’ motion to stay proceedings pending arbitration. The entire contract was not properly before the court, just the arbitration provisions. The merits are reserved for arbitration.

Aguillard, 04-2804 at pp. 20-22, 908 So.2d at 16-17. The court again stated that the parties were free to contract to the terms and that “there was no evidence that the plaintiff was not in an equal bargaining position as the defendants because the plaintiff could have avoided arbitration and the contractual provisions as a whole by simply not signing the agreement.” Aguillard, 04-2804 at p. 23, 908 So.2d at 17.

The court concluded:

Accordingly, even when the scope of an arbitration clause is fairly debatable or reasonably in doubt, the court should decide the question of construction in favor of arbitration. The weight of this presumption is heavy and arbitration should not be denied unless it can be said with positive assurance that an arbitration clause is not susceptible of an interpretation that could cover the dispute at issue. Therefore, even if some legitimate doubt could be hypothesized, this Court, in conjunction with the Supreme Court, requires resolution of the doubt in favor of arbitration.

Aguillard, 04-2804 at p. 25, 908 So.2d at 18.

In the instant matter, the parties were free to negotiate the terms of the franchise agreement, and did so. Despite fairly extensive negotiations regarding the terms of the agreement between Vishal and Choice, the terms of the arbitration clause in the agreement were never modified or at issue, and the terms of the arbitration clause never changed throughout the various drafts of the agreement. Further, the arbitration clause was in the same font size as the rest of the agreement and was also in bold face in all copies of the agreement. Therefore, in light of the Aguillard decision, we agree with Choice that the arbitration clause is not adhesionary.

Vishal now contends, however, that the arbitration clause cannot be valid if the franchise agreement itself is invalid. Vishal argues on remand that there still exists a real issue as to consent in the agreement itself and questions whether a franchise agreement ever existed between the parties as more than one agreement was signed or initialed with apparently conflicting terms.

The United States Supreme Court recently addressed this issue in its decision in Buckeye Check Cashing, Inc. v. Cardegna, - U.S. -, 126 S.Ct. 1204, 163 L.Ed.2d 1038 (2006). The Court in Buckeye set forth three propositions regarding arbitration law that were established in two of its previous decisions. The Court stated:

First, as a matter of substantive federal arbitration law, an arbitration provision is severable from the remainder of the contract. Second, unless the challenge is to the arbitration clause itself, the issue of the contract’s validity is considered by the arbitrator in the first instance. Third, this arbitration law applies in state as well as federal courts. The parties have not requested, and we do not undertake, reconsideration of those holdings. Applying them to this case, we conclude that because respondents challenge the Agreement, but not specifically its arbitration provisions, those provisions are enforceable apart | ¿from the remainder of the contract. The challenge should therefore be considered by an arbitrator, not a court.

Buckeye, 126 S.Ct. at 1209. The court concluded by reaffirming that “regardless of whether the challenge is brought in federal or state court, a challenge to the validity of the contract as a whole, and not specifically to the arbitration clause, must go to the arbitrator.” Buckeye, 126 S.Ct. at 1210.

In the case sub judice, it is undisputed that the parties were operating under a franchise agreement, and did so for five years. Vishal even admits in its brief to this court that the parties were operating under some sort of agreement. Clearly, there was a meeting of the minds as to the existence of a franchisee-franchisor relationship. While the exact terms of the agreement may be at issue, its existence is not. Moreover, Vishal is challenging the agreement itself and is not specifically challenging its arbitration provisions. Because the challenge by Vishal is to the contract as a whole, and not specifically to the arbitration clause, the challenge to the contract must be considered by an arbitrator and not by a court. Buckeye, 126 S.Ct. at 1209.

CONCLUSION

For the foregoing reasons, we vacate the judgment of the trial court insofar as it grants a preliminary injunction enjoining the demand for arbitration, and we remand this matter for further proceedings consistent |7with this opinion. Costs of this appeal are assessed to the plaintiffs, Vishal Hospitality, LLC, Ravi S. Josi and Poonam R. Josi.

VACATED AND REMANDED.

GUIDRY, J., concurs in the result.

      . Vishal Hospitality, LLC v. Choice Hotels International, Inc., 04-0568 (La.App. 1 Cir. 3/24/05), 907 So.2d 80.

      . Vishal Hospitality, LLC v. Choice Hotels International, Inc., 05-1058 (La.1/9/06), 918 So.2d 1020.

      . The earlier decisions noted by the Court are Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 87 S.Ct. 1801, 18 L.Ed.2d 1270 (1967), and Southland Corp. v. Keating, 465 U.S. 1, 104 S.Ct. 852, 79 L.Ed.2d 1 (1984).

      . As to Vishal’s argument that the arbitration agreement can only apply to a valid contract, we note that the Supreme Court in Buckeye stated that the term "contract” cannot be defined so narrowly and that "[t]here can be no doubt that 'contract' ... must include contracts that later prove to be void.” Thus, a court may enforce an arbitration agreement in a contract that the arbitrator later finds to be void and unenforceable. Buckeye, 126 S.Ct. at 1210.


author: GUIDRY, J. PETTIGREW, J., KUHN, J.,

text:
    Priscilla S. SHARP v. Ira C. SHARP Priscilla Sharp on Behalf of Richard Sharp v. Alma Kennedy Succession of Ira Clifton Sharp.
    Nos. 2005 CA 1046, 2005 CA 1047, 2005 CA 1048.
    Court of Appeal of Louisiana, First Circuit.
    June 28, 2006.

      Carol T. Richards, Alan B. Tusa, Craig P. Hart, Vanessa R. Williams, Covington, Counsel for Plaintiff/Appellant Priscilla S. Sharp.
    William M. Magee, Mary Clemence Dev-ereux, Charlene O. Kazan, Covington, Counsel for Defendant/Appellee Ira Clifton Sharp.
    Before: PARRO, KUHN, GUIDRY, PETTIGREW, and GAIDRY JJ.
   GUIDRY, J.

| sIn this action seeking to make executo-ry arrearages of alimony pendente lite, plaintiff, Priscilla Sharp, appeals the trial court’s judgment dismissing her rule for arrearages on grounds of abandonment. For the reasons that follow, we reverse.

FACTS AND PROCEDURAL HISTORY

Priscilla Sharp and Ira Clifton Sharp were married on July 8,1960. On May 13, 1992, Mrs. Sharp filed a petition for divorce pursuant to La. C.C. art. 102, in which petition she prayed for alimony pen-dente lite. Following a hearing, the trial court signed a judgment on July 6, 1992, ordering defendant, Mr. Sharp, to pay $550.00 per month as alimony pendente lite effective June 1, 1992, and on the first of every month thereafter. On December 22, 1992, Mr. Sharp filed a rule to show cause why divorce should not be granted, and a hearing on the rule was set for February 10, 1993. However, there is no evidence in the record that any further action was taken in relation to the petition for divorce.

On May 19, 2004, Mr. Sharp died, and his sister, Alma Sharp Kennedy, filed a petition for recordation and execution of a notarial testament and for confirmation as executrix of Mr. Sharp’s estate on May 24, 2004. Thereafter, on June 16, 2004, Mrs. Sharp filed several pleadings in regard to the succession proceeding and additionally filed a rule for arrearages, attorney’s fees, and costs in the divorce proceeding. On June 23, 2004, Ms. Kennedy, as executrix of the succession of Mr. Sharp, filed a motion to dismiss Mrs. Sharp’s rule on grounds of abandonment. A hearing on Ms. Kennedy’s motion was set for August 10, 2004. Following an off-the-record conference in chambers on that date, the trial court took the abandonment issue under advisement and continued all other matters to another date. In a judgment signed February 24, 2005, the trial court dismissed |4Mrs. Sharp’s rule for arrearag-es on grounds of abandonment. Mrs. Sharp now appeals from this judgment.

DISCUSSION

Alimony Pendente Lite

Louisiana Civil Code article 111, “Alimony pendente lite,” states:

If the spouse has not a sufficient income for maintenance pending suit for divorce, the judge may allow the claimant spouse, whether plaintiff or defendant, a sum for that spouse’s support, proportioned to the needs of the claimant spouse and the means of the other spouse. [Emphasis added.]

In Wascom v. Wascom, 96-0125, p. 4 (La.4/8/97), 691 So.2d 678, 680, the Louisiana Supreme Court reiterated that in examining the nature and purpose of former La. C.C. art. 148, predecessor to article 111, “[laterally, alimony pendente lite means alimony pending the litigation.” Additionally, the court noted that “[a]limo-ny pendente lite arises from the obligation of one spouse to support the other during the pendency of the marriage, as set out in [La.] C.C. art. [98].” Wascom, 96-0125 at p. 4, 691 So.2d at 680. The court stated “though the specific application of the precepts contained in present La. C.C. art. 98 has, over time, been altered to reflect modern norms ... the fundamental nature and purpose of alimony pendente lite has remained the same in the Civil Law since the time of Planiol. It is, as described above, and always has been, based upon the duty of mutual support owed between married persons during the pendency of their marriage.” Wascom, 96-0125 at p. 4, 691 So.2d at 680-681 (citations omitted).

As with divorce, death terminates marriage. La. C.C. art. 101. As such, death also terminates the mutual obligation of support owed by persons married to one another. Wascom, 96-0125 at p. 4, 691 So.2d at 681; see also Whipple v. Whipple, 424 So.2d 263, 265 (La.App. 1st Cir.1982), writ denied, 426 So.2d 179 (La.1983). Accordingly, the right to accrue alimony pendente lite ceases upon the rendition of a final judgment of divorce, or upon the death of one of the spouses, because the divorce or death terminates the marriage, and along with it, the obligation of mutual support underlying the concept of alimony pendente lite. See Wascom, 96-0125 at p. 7, 691 So.2d at 683.

Abandonment

In the instant case, the trial court stated in its reasons for judgment that the judgment awarding alimony pendente lite, which judgment Mrs. Sharp seeks to enforce to make the arrearages executory, was abandoned under La. C.C.P. art. 561. However, the proper inquiry is not whether the judgment was abandoned, but rather, whether the divorce action was abandoned, as it is the pendency of the divorce action that supports the claim for accrued alimony pendente lite and determines the running of the prescriptive period for filing an action to make executory arrearages of spousal support. See La. C.C. arts. 111 and 3497.1; see also Wascom, 96-0125 at pp. 3-4, 691 So.2d at 681; Weldon v. Weldon, 98-1173, p. 5 (La.App. 3rd Cir.2/3/99), 737 So.2d 812, 815; and Shewbridge v. Shewbridge, 28,981, pp. 2-3 (La.App. 2nd Cir.12/11/96), 685 So.2d 418, 420, writ denied, 97-0129 (La.3/7/97), 690 So.2d 20.

On May 13, 1992, Mrs. Sharp filed a petition for divorce pursuant to La. C.C. art. 102. While La. C.C.P. art. 561, which provides that “[a]n action is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of three years,” generally governs abandonment of actions, La. C.C.P. art. 3954 specifically provides “[a] divorce action instituted under Civil Code Article 102 is abandoned if the rule to show cause provided by that Article is not filed within two years of the service of the original petition or execution of written waiver of service of the original petition.” It is a well-settled canon of ^statutory construction that the more specific statute controls over the general statute. Carver, Inc. v. State, Dept. of Public Safety and Corrections, Office of State Police, Video Gaming Div., 95-1664, p. 4 (La.App. 1st Cir.4/4/96), 672 So.2d 1141, 1143, writ denied, 96-1528 (La.9/27/96), 679 So.2d 1349.

In the instant case, Mr. Sharp filed a rule to show cause on December 22, 1992, and a hearing was set for February 10, 1993, which is within the two years prescribed by article 3954. However, there is no evidence in the record of any further action being taken in furtherance of obtaining a judgment of divorce, article 3954 does not require, however, that a divorce be obtained within two years of the filing of the divorce petition, nor that any further action be taken following the filing of the rule to show cause. See Simons v. Simons, 96-832, pp. 4-5 (La.App. 5th Cir.4/9/97), 694 So.2d 999, 1000. Further, the law favors, and justice requires, that an action be maintained wherever possible; thus, abandonment provisions are to be interpreted liberally in favor of maintaining the action. Sibley v. Sibley, 97-1912, pp. 3-4 (La.App. 1st Cir.12/28/98), 724 So.2d 275, 277, writ denied, 99-0291 (La.3/26/99), 739 So.2d 792. As such, we cannot read stricter requirements into the article other than those provided by the legislature. Simons, 96-832 at p. 5, 694 So.2d at 1000.

Further, during the revision of the law of separation and divorce, effective January 1, 1991, the Persons Committee of the Louisiana Law Institute drafted, and the legislature enacted, article 3954, concluding that there should be a reasonable maximum period of time after the mandatory 180-day waiting period in which to file a motion for divorce, noting that it should not be prolonged indefinitely. Kenneth Rigby and Katherine Shaw Spaht, Louisiana’s New Divorce Legislation: Background and Commentary, 54 La. L.Rev. 19, 82 (1993). The legislature provided that article 3954 is only applicable to a divorce action filed in accordance with La. C.C. art. 102; a divorce sought under La. C.C. art. 103 is subject to the general abandonment provision in La. C.C.P. art. 561. Id. at 83. Therefore, the legislature was aware of the general abandonment rule at the time article 3954 was enacted, and by making it applicable to article 102 divorces, manifested its intent that that provision control in those cases. If the legislature wanted the general abandonment rule to come into effect in situations such as the one presently before this court, or if it wanted to enact other provisions to resolve a situation where abandonment can occur following the timely filing of the rule to show cause, it could have provided for same, but it failed to do so. It is not our place to make the law, but rather to interpret and apply the law as written. Therefore, because the requirements of article 3954 have been complied with, we find that the divorce action in the instant case was not abandoned.

Prescription

Because we find the divorce action was not abandoned, Mrs. Sharp continued to accrue alimony pendente lite from the date of judgment in 1992 until May 19, 2004, the date of Mr. Sharp’s death. Once alimony pendente lite payments accrue, they become a vested property right. Shewbridge, 28,980 at p. 3, 685 So.2d at 420; Weldon, 98-1179 at p. 4, 737 So.2d at 814-815. However, an action to make executory arrearages of spousal support is subject to a liberative prescriptive period of five years. La. C.C. art. 3497.1; see also Day v. Day, 02-0431, p. 11 (La.App. 1st Cir.5/28/03), 858 So.2d 483, 491, writ denied, 03-1845 (La.11/7/03), 857 So.2d 492. Therefore, the right to enforce these payments is limited to five years from the date each payment was due. Day, 02-0431 at p. 11, 858 So.2d at 491. As such, Mrs. Sharp is only entitled to arrear-ages from June 16, 1999, five years prior to the date her rule for arrearages was filed, to May 19, 2004, the date of Mr. Sharp’s death, totaling $32,450.00, plus judicial interest. See Bickham v. Bickham, 02-1307, p. 5 (La.App. 1st Cir.5/9/03), 849 So.2d 707, 710-711 (finding that judicial interest on past due spousal support is provided for in La. C.C. art. 2000 and such interest shall be awarded from the date each payment is due.)

Attorney’s Fees and Costs

Louisiana Revised Statutes 9:375 provides that when a court renders a judgment making past-due spousal support ex-ecutory, it “shall, except for good cause shown, award attorney’s fees and costs to the prevailing party.” However, in the instant case, the trial court, in finding the judgment for alimony pendente lite to be abandoned, never reached the merits of Mrs. Sharp’s claim for arrearages, and the parties never had the opportunity to present evidence as to reasonable attorney’s fees, nor to demonstrate good cause for denying such an award. Cf. Bickham, 02-1307 at pp. 6-7, 849 So.2d at 711-712. Therefore, we remand this matter to the trial court for an evidentiary hearing on the issues of attorney’s fees and costs.

CONCLUSION

For the foregoing reasons, the judgment of the trial court, ordering Mrs. Sharp’s claim for alimony arrearages to be dismissed on the grounds- that the judgment for alimony pendente lite was abandoned is reversed. We award Mrs. Sharp a total of $32,450.00, plus judicial interest from the date each support payment was due, representing alimony pendente lite arrearages from June 16, 1999, through May 19, 2004, the date of Mr. Sharp’s death. Further, we remand this matter to the trial court for an evidentiary hearing to determine the issues of attorney’s fees and costs. All costs of this appeal are to be borne by the appellee, Alma Sharp Kennedy, Executrix of the Succession of Ira Clifton Sharp.

REVERSED, RENDERED AND REMANDED.

PETTIGREW, J., concurs and assigns reasons.

KUHN, J., dissents and assigns reasons.

PARRO, J., dissents for the reasons assigned.

PETTIGREW, J.,

concurring.

|,I agree with the majority and would like to add the following observations. The rights the appellant is urging arise from a Judgment of alimony pendente lite rendered by the trial court on July 6, 1992. No appeal or supervisory writ was taken from said judgment. There is no action pending in alimony pendente lite. The issue has already been joined and decided by the trial court. In my humble opinion La.Code Civ. P. art. 561 has no application to the facts of this case. I agree with the majority that La. Civ.Code art. 3497.1 controls the facts of this case.

KUHN, J.,

dissenting.

| Louisiana Code of Civil Procedure article 561(A)(1), setting forth the general rule of abandonment, provides that an action is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of five years. According to the applicable version of La. C.C. art. 102, a divorce shall be granted upon a motion of a spouse when either spouse has filed a petition for divorce and upon proof that one hundred eighty days have elapsed from the service of the petition, or from the execution of a written waiver of the service, and that the spouses have lived separate and apart continuously since the filing of the petition. Louisiana Code of Civil Procedure article 3954 provides that a divorce action under | ¡^Article 102 is abandoned if the rule to show cause provided by Article 102 is not filed within two years of the service of the original petition for divorce.

It is undisputed that on July 6, 1992, Mrs. Sharp obtained a signed order for alimony pendente lite in conjunction with her petition for an Article 102 divorce. The parties never obtained a divorce. Instead, their marriage terminated when Mr. Sharp died on May 19, 2004, a little over a month before Mrs. Sharp filed her claim for arrearages for alimony pendente lite against her deceased husband’s estate. The majority reasons that because Mr. Sharp filed a rule to show cause within two years of the service of the petition for an Article 102 divorce, the matter was not abandoned under an application of Article 3954. The majority recognizes that “there is no evidence ... of any further action [having been] taken in furtherance of obtaining a judgment of divorce.” But here it ends its inquiry as to an abandonment of the action for divorce, apparently holding that once a party has filed a rule to show cause, the Article 102 divorce action is incapable of ever being abandoned, regardless of whether the motion resulted in a judgment of divorce. I disagree.

To properly address the question of abandonment in a situation where a rule to show cause has been filed within two years of the filing of a petition for an Article 102 divorce but a judgment of divorce has not issued as a result, Article 3954 must be read in pari materia with Article 561. Nothing in Article 561 purports to usurp the special rule of abandonment set forth in Article 3954, and since the requirements of Article 3954 have been met, no one quarrels with the conclusion that the divorce action was not ^abandoned pursuant to that article. However, subsequent to the filing of the Article 102 rule to show cause, it is undisputed that the parties failed to take any step in the prosecution or defense of the divorce action for a period in excess of five years. Hence, the Article 102 action for divorce was abandoned in accordance with the provisions of Article 561 on December 22, 1997, five years from the date the Article 102 rule to show cause was filed. Once the divorce action was deemed abandoned by the self-operative provision of Article 561(A)(2) and no longer pending, Mrs. Sharp’s ancillary order for continued alimony pendente lite also fell. This is because, as the majority correctly points out, alimony pendente lite literally means alimony pending the litigation. Once the action of divorce was deemed abandoned under Article 561, Mrs. Sharp’s entitlement to future alimony pen-dente lite terminated by operation of law. See Shewbridge v. Shewbridge, 28,981, p. 3 (La.App. 2d Cir.12/11/96), 685 So.2d 418, 420. Because, as the majority correctly states, Mrs. Sharp is only entitled to ar-rearages from June 16, 1999, her claim for alimony pendente lite from June 1, 1992 through December 22, 1997 is prescribed.

For these reasons, I believe the trial court correctly dismissed Mrs. Sharp’s claim for arrearages against Mr. Sharp’s estate. Accordingly, I dissent.

      . In this consolidated record on appeal, additional pleadings were filed by the executrix regarding possession and by Mrs. Sharp regarding partition of community property; however, none of these pleadings are relevant to the instant case.

      . Louisiana Civil Code articles regarding spousal support were subsequently revised, amended, and reenacted by Acts 1997, No. 1078, § 1, consisting of articles 111 through 117, effective January 1, 1998.

      .The court in Wascom actually cited La. C.C. arts. 119 and 120, but noted that article 120 had been repealed and that current article 98, revised in 1987, reproduced almost verbatim the substance of former article 119. Wascom, 96-0125 at p. 4, 691 So.2d at 680.

      . On appeal, Ms. Kennedy filed a motion and order to be recognized as the proper party defendant in this proceeding, which was granted on April 11, 2006.

      . By La. Acts 1997, No. 1221, § 1, the legislature reduced the period for abandonment in La. C.C.P. art. 561 from five years to three years. Since Mrs. Sharp filed her petition for divorce on May 13, 1992, the five-year abandonment period of Article 561, applicable at the time of her filing, had already elapsed prior to July 1, 1998, the effective date of the legislative amendment. Thus, for purposes of this appeal, we reference the five-year time period.

      . The majority’s holding breathes into Article 3954 an implicit corollaiy proposition suggesting that once a rule to show cause has been filed, the Article 102 action can never be abandoned. Application of this corollary turns a blind eye to the parties’ failure to comport with the substantive requisites of Article 102 in this case. No divorce was granted. And no proof was offered or relied upon by the trial court.


author: GAIDRY, J.

text:
    LACOUR’S DRAPERY COMPANY, INC. D/B/A LaCour’s Carpet World v. BRUNT CONSTRUCTION, INC.
    No. 2005 CA 1352.
    Court of Appeal of Louisiana, First Circuit.
    June 28, 2006.
    Rehearing Denied Aug. 22, 2006.

      Craig L. Raster, Zachary, Counsel for Plaintiff/Appellee Lacour’s Drapery Company, Inc. D/B/A Lacour’s Carpet World.
    W. Scarth Clark, New Orleans, Counsel for Defendant/Appellant Brunt Construction, Inc.
    David J. Krebs, H.S. Bartlett, III, New Orleans, Counsel for Defendant/Appellant Fidelity & Deposit Company of Maryland.
    Before: CARTER, C.J., DOWNING, and GAIDRY, JJ.
   GAIDRY, J.

| ¡.This suit arises out of a dispute over payment for work performed by plaintiff, LaCour’s Drapery Company, Inc., d/b/a LaCour’s Carpet World (“LaCour’s”), as subcontractor for defendant, Brunt Construction, Inc. (“Brunt”). LaCour’s filed suit on October 1, 2003, alleging that Brunt had failed to pay LaCour’s in full for work performed on two projects, described in the petition as the North Corbin Elementary School project (“North Corbin”) and the LIGO project (“LIGO”), despite the fact that Brunt had been paid by the owner for LaCour’s work.

Brunt filed an exception of prematurity on November 4, 2003, alleging that the parties were contractually obligated to arbitrate any disputes prior to litigation. The matter was stayed on December 2, 2003 so that LaCour’s and Brunt could arbitrate their disputes as required by the contract.

The arbitrator’s ruling, issued in an October 19, 2004 letter to the parties, addressed disputes between the parties arising out of four projects; in addition to the two projects mentioned in the petition, he addressed the parties’ disputes arising out of the Riverside Medical Center project (“Riverside”) and the Charles E. Cate Teacher Education Center project (“Cate”). Both parties’ claims relating to the LIGO project were rejected. On the Cate project claims, the arbitrator awarded LaCour’s $45,828.13, plus legal interest, but denied all of the parties’ other claims arising out of this project. On the North Corbin project, the arbitrator awarded LaCour’s $11,063.56, plus legal interest, assessed a penalty in the amount of $1,659.54 against Brunt, and rejected Brunt’s claims. On the Riverside project dispute, the arbitrator awarded LaCour’s $11,564.45, plus legal interest, assessed a penalty of $1734.67 against Brunt, and rejected Brunt’s claims against LaCour’s. In addition to the awards made on the specific ^disputes, the arbitrator awarded LaCour’s $5,000.00 in attorney’s fees and assessed seventy percent of the cost of arbitration to LaCour’s and thirty percent to Brunt.

On November 10, 2004, almost a month after the arbitrator rendered his decision, LaCour’s filed a motion to amend its petition in order to add Fidelity and Deposit Company of Maryland (“F & D”) as a defendant. The amended petition alleged that F & D was solidarity liable with Brunt because it provided the statutory performance and payment bond to Brunt with regard to the Riverside and Cate projects. LaCour’s had sent letters by certified mail to F & D dated September 17, 2003 and March 8, 2004, demanding payment on those projects.

LaCour’s filed a motion to confirm the arbitrator’s award, which was opposed by F & D on the grounds that they were not a party to the lawsuit at the time of the arbitration and were neither informed of nor invited to participate in the arbitration, which prevented them from presenting any defenses available to them as a surety. F & D also objected to the award of attorney’s fees on LaCour’s claims. After a hearing, the trial court rendered judgment confirming the arbitrator’s decision against Brunt on the North Corbin project claims and against Brunt and F & D in solido on the Cate and Riverside project claims. In oral reasons for judgment, the trial court stated that F & D “knew about LaCour’s demand ... a year prior to the arbitration and had they wished to participate in the arbitration, they could have requested of this court to do so. The court does not feel that they should be able to sit back and do nothing and then complain that they did not participate.” Brunt and F & D each suspensively appealed this judgment.

|4F & D alleges on appeal that the trial court erred in finding that it had received proper notice of the arbitration proceedings; in enforcing the arbitration award against F & D when F & D had no notice of the proceedings and no opportunity to be heard; and in enforcing the arbitration award against F & D when the arbitration did not adjudicate the personal defenses available to F & D as a surety, which defenses could limit F & D’s obligation to satisfy the arbitration judgment.

Brunt’s appeal alleges that the trial court erred in refusing to allow it to present testimony to prove that the arbitrator’s award was unfair and procured through ill practices.

DISCUSSION

Within a year after an award is made, any party to an arbitration may apply to the court for an order confirming the award. Upon such an application, the court shall grant the order unless the award is vacated, modified, or corrected as prescribed in R.S. 9:4210 and 9:4211. La. R.S. 9:4209. An arbitration award shall be vacated when it was procured by corruption, fraud, or undue means; or where there was evident partiality or corruption on the part of the arbitrator; or where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy, or of any other misbehavior by which the rights of any party have been prejudiced; or where the arbitrators exceeded their powers or so. imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made. La. R.S. 9:4210.

F & D’s arguments on appeal center around the fact that it was not involved in the arbitration that produced the award for which it is now liable as Brunt’s surety. However, it is not necessary for F & D to be a party to the | ^arbitration in order for it to be liable as a surety on awards covered by its surety bond. F & D argues that there were personal defenses available to it as a surety which would limit its liability on the bond. F & D fails to enlighten us in its appellate brief as to exactly what defenses to liability it might have raised had it been invited to attend the arbitration; however, these defenses could also have been raised before the trial court at the hearing on the confirmation of the arbitration award. The third circuit in Town of Melville v. Safeco Ins. Co. of America, 94-1039 (La.App. 3 Cir. 3/1/95), 651 So.2d 404, held that an arbitration award rendered against a general contractor was enforceable against his surety who was not a party to the arbitration; however, the award merely established the upper limit of the surety’s liability, and the surety could then raise any personal defenses available to it to reduce or eliminate its liability. Again, we are unaware of what personal defenses F & D desired to raise, but the fact remains that F & D did not need to participate in the arbitration in order for the arbitration award to be enforceable against it as surety, and the appropriate place for F & D to raise any defenses would have been at the hearing held by the trial court. F & D does not allege on appeal that it attempted to raise personal defenses to liability at the confirmation hearing and was prevented from doing so; therefore, the trial court did not err in finding F & D solidarily liable with Brunt on the awards arising from the Cate and Riverside project claims.

Regarding F & D’s argument that the award of attorney’s fees against it was inappropriate, La. R.S. 38:2246(A) provides that only where a party’s timely and properly recorded or sworn claim is granted in full can attorney’s fees be awarded. In cases where attorney’s fees are appropriate, they are to be in the amount of ten percent. In this case, the arbitrator made individual awards on each project claim, then awarded attorney’s fees of $5,000.00, | ¿without stating how it arrived at that amount. On the Cate project, the arbitrator awarded LaCour’s the full amount of its claim, $45,828.13; thus attorney’s fees are allowable on that claim in the amount of $4,582.81. On the Riverside project, the trial court did not award LaCour’s the entire amount it made a claim for, so attorney’s fees were not allowable on that award. Therefore, we must amend the trial court’s judgment awarding $5,000.00 in attorney’s fees to LaCour’s to award $4,582.81 in attorney’s fees.

Regarding Brunt’s allegations on appeal that he was prevented from presenting evidence at the confirmation hearing to prove that the arbitrator’s award was unfair and procured through ill practices, we are unable to determine from the record or his brief exactly what testimony he was prevented from introducing. The record in this suit contains no transcript of the hearing, and the minutes from the hearing do not mention Brunt’s failed attempt to offer testimony. Furthermore, Brunt failed to proffer any proposed testimony for our review. This assignment of error is without merit.

DECREE

• For the above reasons, we amend the trial court judgment to award $4,582.81 in attorney’s fees, and as amended, we affirm this judgment. Costs of this appeal are to be shared equally by Brunt and F & D.

AMENDED, AND, AS AMENDED, AFFIRMED.

DOWNING, J., concurs without reasons.

      . The total cost of the arbitration was $1,950.00

      . Brunt was initially granted a suspensive appeal, but that appeal was converted to a de-volutive appeal by this court because it was not timely filed as a suspensive appeal.


author: JAMES L. CANNELLA, Judge.

text:
    STATE of Louisiana v. Gerard M. BEAUDOIN.
    No. 06-CA-88.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 29, 2006.
    Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Desiree M. Valenti, Assistant District Attorneys, Gretna, Louisiana, for Plaintiff/Appellee.
    Julie C. Tizzard, Gretna, Louisiana, for Defendant/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., JAMES L. CANNELLA, and CLARENCE E. McMANUS.
   JAMES L. CANNELLA, Judge.

|2On November 24, 2004, the Appellants filed a Motion to Set Aside the Judgment for Bond Forfeiture and Nullity of Judgment. According to a minute entry, a hearing was held on that date and the motion was denied by the trial judge in open court. The bench ruling was not reduced to a written judgment signed by the trial judge. Instead, the word “Denied” was written across the motion, initialed by an unknown person, obviously not the trial judge. That does not constitute a final judgment.

La.C.C.P. art. 1911 requires the trial judge to sign a final written judgment, and further provides that no appeal may be taken until that requirement is met. See also: Rule 9.5 of the Rules for Civil (Except For Family, Juvenile or Domestic Relations) Proceedings in District Court. A minute entry and an oral judgment that |shas not been reduced to writing and signed by the trial judge are insufficient to divest jurisdiction from the trial judge and for the appellate court to obtain jurisdiction. Thus, without a written judgment signed by the trial judge, this appeal is premature. See: La. C.C.P. art. 1911; C.C.P. art. 1918; Lenard v. Goodwin, 554 So.2d 294 (La.App. 5th Cir.1989); City of Kaplan v. Mayard, 616 So.2d 826, 827 (La.App. 3rd Cir.1993).

We issued an order to show cause to the Appellant as to why the appeal should not be dismissed for prematurity. The Appellant agreed that the appeal was premature. Consequently, the appeal must be dismissed. Pursuant to law, the Appellants may refile their appeal from the written judgment when it is obtained from the trial court. See: La.C.C.P. art. 2087; C.C.P. art. 2133. We will consider the appeal as filed if a signed judgment is obtained within the 14 day rehearing period. See: Uniform Rules-Courts of Appeal, Rule 2-18.2(b).

Accordingly, the appeal is hereby dismissed without prejudice. Costs of this appeal are to be paid by the Appellants.

APPEAL DISMISSED.

      . La.C.C.P. art. 1911 states:
      Except as otherwise provided by law, every final judgment shall be signed by the judge. For the purpose of an appeal as provided in Article 2083, no appeal may be taken from a final judgment until the requirement of this Article has been fulfilled. No appeal may be taken from a partial final judgment under Article 1915(B) until the judgment has been designated a final judgment under Article 1915(B). An appeal may be taken from a final judgment under Article 1915(A) without the judgment being so designated.

      . See: C.C.P. art. 2088.


author: McClendon, j. WHIPPLE, J.

text:
    QUALITY DESIGN AND CONSTRUCTION, INC. v. TUFF COAT MANUFACTURING, INC.
    No. 2005 CA 1712.
    Court of Appeal of Louisiana, First Circuit.
    July 12, 2006.
    Rehearing Denied Sept. 19, 2006.

      Joseph C. Wiley, Gonzales, for Plaintiff/Appellant Quality Design and Construction, Inc.
    Matthew W. Pryor, Prairieville, for Defendant/Appellee Tuff Coat Manufacturing, Inc.
    Before: WHIPPLE, McCLENDON, and WELCH, JJ.
   McClendon, j.

I ¡>,This appeal presents the res nova issue of the exercise of personal jurisdiction by Louisiana over a nonresident defendant based on that defendant’s contact with Louisiana through its Internet website.

FACTS

Plaintiff, Quality Design and Construction, Inc., (Quality Design), a Louisiana corporation, served as general contractor for the construction of Jambalaya Park, a public works project in and for the City of Gonzales. The park contained a children’s “sprayground” or water park. To cover the concrete surfaces of the sprayground, Quality Design purchased Ultra Tuff, a non-slip, abrasion-resistant, polyurethane coating manufactured by Tuff Coat Manufacturing, Inc., (Tuff Coat), a Colorado corporation. After installation, pigment leached from the Ultra Tuff coating. The leached pigment allegedly damaged the water purification system and required repair and recoating of the covered surfaces.

Quality Design filed suit against Tuff Coat in the 23rd Judicial District Court in Ascension Parish. In response, Tuff Coat filed a declinatory exception raising the objection of lack of personal jurisdiction. Tuff Coat maintained it did not have sufficient minimum contacts with the State of Louisiana such that Louisiana could exercise personal jurisdiction over Tuff Coat. In support, Tuff Coat offered the affidavit of Bill Duffle, President of Tuff Coat. At the hearing on Tuff Coat’s exception, Quality Design offered Tuff Coat’s responses to interrogatories and copies of pages from Tuff Coat’s Internet website. After the hearing, the district court sustained Tuff Coat’s exception and dismissed Quality Design’s petition, finding Tuff Coat lacked sufficient minimum contacts with Louisiana. Quality Design appeals.

|,LAW AND DISCUSSION

Appellate courts conduct a de novo review of the legal issue of personal jurisdiction over a nonresident by a Louisiana court. Frederic v. Zodiac Development, 2002-1178, p. 4 (La.App. 1 Cir. 2/14/03), 839 So.2d 448, 452. However, the district court’s factual findings underlying the decision are reviewed under the manifest error standard of review. Griffith v. French, 97-2635, p. 3 (La.App. 1 Cir. 12/28/98), 723 So.2d 1140, 1142, writ denied, 99-0220 (La.3/19/99), 740 So.2d 116.

In determining whether there is personal jurisdiction, we look to the long-arm statute of Louisiana, which provides that “a court of this state may exercise personal jurisdiction over a nonresident on any basis consistent with the constitution of this state and of the Constitution of the United States.” LSA-R.S. 13:3201(B). The limits of the Louisiana long-arm statute and of constitutional due process are coextensive; the sole inquiry into jurisdiction over a nonresident is whether it comports with constitutional due process requirements. Alonso v. Line, 2002-2644, p. 6 (La.5/20/03), 846 So.2d 745, 750, cert. denied, 540 U.S. 967, 124 S.Ct. 434, 157 L.Ed.2d 311 (2003).

To comport with constitutional due process requirements, the nonresident defendant must have purposefully established certain “minimum contacts” with the forum state such that he could reasonably anticipate being haled into court there, and the exercise of personal jurisdiction must be such that it “does not offend traditional notions of fair play and substantial justice.” International Shoe Co. v. State of Washington, Office of Unemployment Compensation and Placement, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945). A court’s exercise of personal jurisdiction may be “general” or “specific.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 473 n. 15, 105 S.Ct. 2174, 2182 n. 15, 85 L.Ed.2d 528 (1985); Griffith, 97-2635 at p. 3, 723 So.2d at 1143. A court may exercise general jurisdiction over a defendant when the defendant has engaged in continuous and systematic contacts with the forum state, but the contacts are not necessarily related to the lawsuit. Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414-16, 104 S.Ct. 1868, 1872-73, 80 L.Ed.2d 404 (1984). A court may exercise specific jurisdiction over a defendant when the alleged cause of action arises out of, or is related to, the defendant’s purposeful contacts with the forum state. Helicopteros Nacionales de Colombia, S.A., 466 U.S. at 414 n. 8, 104 S.Ct. at 1872 n. 8.

Minimum contacts are established when the nonresident defendant “purposefully avails itself of the privilege of conducting activities within the forum [s]tate.” Burger King Corp., 471 U.S. at 475, 105 S.Ct. at 2183 (quoting Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1239-40, 2 L.Ed.2d 1283 (1958)). The “purposeful availment” requirement for the exercise of specific jurisdiction over a nonresident defendant ensures that it will not be haled into a jurisdiction solely as a result of a random, fortuitous, or attenuated contact, or by the unilateral activity of another party or a third person. Burger King Corp., 471 U.S. at 475, 105 S.Ct. at 2183; de Reyes v. Marine Management and Consulting, Ltd., 586 So.2d 103, 106 (La.1991). However, such contacts may be effected by mail and electronic communications, as well as physical presence. Spomer v. Aggressor International, Inc., 2000-1646, p. 5 (La.App. 1 Cir. 9/28/01), 807 So.2d 267, 272, writ denied, 2001-2886 (La.1/25/02), 807 So.2d 250. To determine whether minimum contacts exist, a court must engage in a “factual determination of the relationship among the forum, the defendant, and the litigation.” A & L Energy, Inc. v. Pegasus Group, 2000-3255, p. 6 (La.6/29/01), 791 So.2d 1266, 1271-72, cert. denied, 534 U.S. 1022, 122 S.Ct. 550, 151 L.Ed.2d 426 (2001), (quoting Shaffer v. Heitner, 433 U.S. 186, 204, 97 S.Ct. 2569, 2580, 53 L.Ed.2d 683 (1977)).

In accord with these precepts, there has developed a two-part test in personal jurisdiction analysis. First, it must be shown that the defendant has established minimum contacts with the forum state; i.e., it has purposefully directed its activities at the residents of the forum state. The minimum contacts prong is satisfied by a single act or actions by which the defendant “purposefully avails itself of the privilege of conducting activities within the forum [s]tate, thus invoking the benefits and protections of its laws.” Burger King Corp., 471 U.S. at 475, 105 S.Ct. at 2183 (quoting Hanson, 357 U.S. at 253, 78 S.Ct. at 1239-40). The nonresident’s purposeful availment must be such that the defendant “should reasonably anticipate being haled into court” in the forum state. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 567, 62 L.Ed.2d 490 (1980); Ruckstuhl v. Owens Corning Fiberglas Corp., 98-1126, p. 6 (La.4/13/99), 731 So.2d 881, 885, cert. denied, 528 U.S. 1019, 120 S.Ct. 526, 145 L.Ed.2d 407 (1999). Once that is shown, “a presumption arises that jurisdiction is reasonable and the burden of proof and persuasion shifts to the defendant opposing jurisdiction to present ‘a compelling case that the presence of some other considerations would render jurisdiction unreasonable.’ ” de Reyes, 586 So.2d at 106, (quoting Burger King Corp., 471 U.S. at 477, 105 S.Ct. at 2185); Peters v. Alpharetta Spa, L.L.C., 2004-0979, p. 5 (La.App. 1 Cir. 5/6/05), 915 So.2d 908, 911.

Tuff Coat excepts to the exercise of personal jurisdiction over it by a Louisiana court. Bill Duffle, President of Tuff Coat, stated in his affidavit that Tuff Coat is a Colorado-based corporation, not registered or licensed to do business in Louisiana. According to Duffle, Tuff Coat does not maintain |fian office, bank account, telephone number, or post office box in Louisiana, nor does Tuff Coat directly advertise, solicit business, or employ anyone in Louisiana.

Tuff Coat does maintain an informational website on the World Wide Web that is accessible to Internet web users all over the world. Web users may not purchase Tuff Coat products via the website; however, it does give contact information that includes a physical mailing address and a toll-free number. Therefore, interested parties are provided information whereby they can mail or telephone the Colorado corporation for the purpose of placing an order. Once Tuff Coat fills an order, it ships the product to the customer “FOB Montrose, Colorado,” thereby transferring ownership of the product to the customer upon its departure from the Montrose loading dock, as though the customer personally came to Colorado to purchase the product.

Tuff Coat’s website does allow customers of its Ultra Tuff Marine products to add their names to a list of customers on one of its web pages. However, for customers to add their names to the list, they must initiate contact with Tuff Coat. Among the listed customers is “Bollinger Shipyards, LA[.]” No other listed customers are specifically designated to be from Louisiana.

According to interrogatory responses submitted into evidence, Tuff Coat never sold directly to Bollinger Shipyards, although it was ultimately the end-user of Tuff Coat’s product. Tuff Coat has made sales to four other entities providing Louisiana addresses, in addition to Quality Design. However, neither Quality Design nor any of those entities were listed on 17Tuff Coat’s website. Further, in each of those instances, the Louisiana customer contacted Tuff Coat to make a purchase; no negotiations took place; each sale was a one-time transaction resulting in no repeat transactions; and all products were shipped “FOB Montrose, Colorado.”

It is Quality Design’s contention that the district court may assert jurisdiction over Tuff Coat based on Tuff Coat’s Internet website. In support, Quality Design cites Zippo Manufacturing Co. v. Zippo Dot Com, Inc., 952 F.Supp. 1119 (W.D.Pa.1997). Zippo used a “sliding scale” to measure an Internet site’s connection to a forum state in the consideration of the exercise of personal jurisdiction over a nonresident defendant. Zippo Manufacturing Co., 952 F.Supp. at 1124. At one end of the spectrum, there are situations where a defendant clearly does business over the Internet by entering into contracts with residents of other states that “involve the knowing and repeated transmission of computer files over the Internet.” Zippo Manufacturing Co., 952 F.Supp. at 1124. In that situation, personal jurisdiction is proper. At the other end of the spectrum, there are situations where a defendant merely establishes a passive website that does nothing more than ad-vertisé on the Internet. With passive websites, personal jurisdiction is not appropriate. Zippo Manufacturing Co., 952 F.Supp. at 1124. In the middle of the spectrum, there are situations where a defendant has a website that allows a user to exchange information with a host computer. In this middle ground, “the exercise of jurisdiction is determined by examining the level of interactivity and commercial nature of the exchange of information that occurs on the Web site.” Zippo Manufacturing Co., 952 F.Supp. at 1124.

The Zippo sliding scale was adopted by the U.S. Fifth Circuit in Mink v. AAAA Development LLC, 190 F.3d 333, 336 (5th Cir.1999), and has |Rbeen utilized in subsequent cases. See Revell v. Lidov, 317 F.3d 467 (5th Cir.2002); Percle v. SFGL Foods, Inc., 356 F.Supp.2d 629 (M.D.La.2004). In Mink, the Fifth Circuit considered a defendant’s website that was accessible to consumers in the forum state and that contained information about its products and services. The website included an electronic e-mail address, a toll-free number, and a printable mail-in order form. Noting that no orders could be taken through the website, the court found it to be “passive advertisement,” which was not grounds for the exercise of personal jurisdiction. Mink, 190 F.3d at 336-37.

The Zippo sliding scale has been utilized by the Louisiana Third Circuit in Williams v. Frank Parra Auto Plex, Inc., 2005-0737, pp. 6-7 (La.App. 3 Cir. 3/22/06), 929 So.2d 755, 760-61. In Williams, one defendant operated an interactive website that permitted exchange of information with Louisiana residents through live “chat rooms.” Again, customers of that defendant could not use the website to make purchases. Also, the second Williams defendant’s website merely contained a toll-free number for contacting the nonresident defendant. Williams, 2005-0737 at pp. 2-3, 929 So.2d at 757-58. These facts were found to be insufficient to establish minimum contacts by either defendant with Louisiana.

We find Zippo and its progeny to be instructive in examining Internet websites for the exercise of personal jurisdiction over nonresident defendants. Based on the criteria set forth in Zippo, we are compelled to categorize Tuff Coat’s website as more closely aligned to the “passive” end 19of the spectrum such that it is improper for Louisiana to exercise personal jurisdiction over it.

As previously noted, web users are not allowed to make purchases from Tuff Coat online. Nor is this a case wherein web users receive regular or repeated information that can be downloaded from Tuff Coat’s website. The extent of interactivity is limited to the invitation to actual customers to make a one-time contact with Tuff Coat, to be initiated by the customers, to have their names placed on a web page list, if they so desire. Otherwise, the website merely provides promotional and contact information regarding Tuff Coat and its products.

In this instance, we find that Tuff Coat’s actions with regard to its Internet website do not rise to the level of “purposeful availment” of Louisiana’s law such that it could expect to be haled into a Louisiana court. Moreover, under the particular facts presented herein, we find that Tuff Coat’s sales to five Louisiana entities were “fortuitous” within the meaning of WorldWide Volkswagen, 444 U.S. at 295, 100 S.Ct. at 566. Simply put, Tuff Coat lacks sufficient minimum contacts with this state to justify Louisiana’s exercise of personal jurisdiction over it.

CONCLUSION

Accordingly, the judgment of the district court sustaining Tuff Coat’s declinatory exception raising the objection of lack of personal jurisdiction is hereby affirmed. Quality Design and Construction, Inc. is to bear all costs of this appeal.

AFFIRMED.

WHIPPLE, J., dissents and assigns reasons.

WHIPPLE, J.

hi dissent from the majority’s holding herein that Tuff Coat lacks sufficient minimum contacts with Louisiana to justify the exercise of personal jurisdiction over it.

Examining the activity and commercial nature of the available exchange of information between Tuff Coat and Internet web users in light of Zippo Manufacturing Co. v. Zippo Dot Com, Inc., 952 F.Supp. 1119 (W.D.Pa.1997), I find Tuff Coat’s website more properly requires a “middle of the spectrum” designation. Internet users are allowed and specifically invited to interact with the website by exchanging information. Moreover, “satisfied customers” are designated on the website as part of Tuff Coat’s marketing strategy, with a geographic notation of the customer’s loeation (by state) and a willingness to serve as a reference for future customers.

Nevertheless, even such a “middle of the spectrum” designation is not the single determinative factor. As stated in International Shoe Co. v. State of Washington, Office of Unemployment Compensation and Placement, 326 U.S. 310, 319, 66 S.Ct. 154, 159, 90 L.Ed. 95 (1945), and reiterated in Burger King Corp. v. Rudzewicz, 471 U.S. 462, 478, 105 S.Ct. 2174, 2185, 85 L.Ed.2d 528 (1985) “court[s] long ago rejected the notion that personal jurisdiction might turn on ‘mechanical’ tests.” The ultimate question remains: whether the defendant’s contacts with the state are of such a | ¡¡quality and nature that it could reasonably expect to be haled into court in the forum state.

Tuff Coat knew the results of sales contracts to Louisiana purchasers would be the use of Tuff Coat’s product by Louisiana companies and Louisiana’s citizens. In addition, the sales were entirely within Tuff Coat’s control. Consequently, I do not find that Tuff Coat’s sales to Louisiana companies were “fortuitous” within the meaning of World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 295, 100 S.Ct. 559, 566, 62 L.Ed.2d 490 (1980). When a defendant makes a conscious choice to conduct business with the residents of a forum state, “it has clear notice that it is subject to suit there.” World-Wide Volkswagen, 444 U.S. at 297, 100 S.Ct. at 567. Tuff Coat had no obligation to sell to residents of Louisiana; it chose to do so, presumably for profit. See Zippo Manufacturing Co., 952 F.Supp. at 1124-25. Such a choice and substantial connection gives Tuff Coat notice that it is subject to suit in Louisiana, by effectively and purposefully availing itself of the benefits and protections of Louisiana’s laws. As found in Zippo Manufacturing Co., 952 F.Supp. at 1126, if Tuff Coat had not wanted to be amenable to jurisdiction in Louisiana, it could have refused to market or sell to Louisiana residents.

In addition, while the fact that a nonresident has contracted with a resident of the forum state is, by itself, not singularly sufficient to justify personal jurisdiction over the nonresident, the requisite contacts may be supplied by additional factors associated with the contract, including contemplated future consequences. Burger King Corp., 471 U.S. at 478-79, 105 S.Ct. at 2185. In this instance, Tuff Coat engaged in a marketing scheme designed to actively seek future relationships with Louisianians. As shown in the copies of Tuff Coat’s Customers’ page and Home page from its | (¡Internet website appearing of record, Tuff Coat prominently lists various recent marine and boating industry customers. The Customers’ page invites potential customers to view the listing of recent customers, invites website users to become a Tuff Coat customer, and solicits such customers to add their names to the published list. As noted by the majority, each customer is specifically identified by city and state or by state. Accordingly, Bollinger Shipyards was clearly included on the customer list and unmistakably identified as a Louisiana entity.

The maintenance of an Internet website that openly solicits potential customers by utilizing present and past customers, identified by state, is clearly a marketing tool designed to target future customers in that state, with the goal of increased sales. Furnishing a present customer’s location does more than invite inquiry by potential customers; such acts are clearly intended to target and market the products to similarly located customers. Indeed, including, as the single identifying feature, the geographic state of big-name customers in advertising and information dissemination cannot be viewed as anything but a marketing tool; nor can it be denied that such information seeks to increase contacts and sales to neighboring businesses.

Considering the second prong of the due process analysis, I find the exercise of personal jurisdiction over Tuff Coat comports with “traditional notions of fair play and substantial justice.” International Shoe Co., 326 U.S. at 316, 66 S.Ct. at 158. While there may be a burden on Tuff Coat to litigate in Louisiana, it would be equally, if not more, burdensome on Quality Design to litigate in Colorado. Virtually all of the witnesses and the evidence necessary for trial in this matter are located in Louisiana. Louisiana has a fundamental interest in ensuring that its resident citizens are afforded the protections of Louisiana law. Lastly, the particular application |4of Tuff Coat’s product to a public children’s “sprayground” is of significant interest to Louisiana. Weighing all these factors, I am not persuaded that exercising jurisdiction over Tuff Coat would offend traditional notions of due process.

In sum, while the majority herein correctly cites the applicable law, it nonetheless fails to properly apply it. Instead, under the approach adopted by the majority, virtually every merchant can do business in and every dangerous product can be introduced into the State of Louisiana with impugnity, so long as the merchant categorizes its electronic marketing plan as a mere dissemination of information. For these reasons, I respectfully dissent. Given the record and applicable legal precepts, I would reverse the trial court’s dismissal of the petition and remand for further proceedings.

      . The record establishes that this is exactly what occurred in the case sub judice. Quality Design initiated a phone call to Tuff Coat, after apparently discovering Tuff Coat's website on the Internet. No negotiations took place; Quality Design simply made a telephonic order, after which Tuff Coat shipped the product “FOB Montrose, Colorado.”

        . Tuff Coat cites and relies on Coastal Credit Co., Inc. v. CSS, Inc., 96-0797 (La.App. 3 Cir. 12/11/96), 685 So.2d 464, to avoid the exercise of personal jurisdiction over it; however, the facts of that case did not involve a nonresident’s maintenance of an Internet website. In Coastal Credit, 96-0797 at pp. 2-3, 685 So.2d at 465-66, CSS, a Florida company, sold computer software to several Louisiana customers after CSS received an unsolicited phone call from a Louisiana resident. CSS mailed the software directly to offices in Louisiana. Coastal Credit, 96-0797 at p. 3, 685 So.2d at 466. This was found to be insufficient for Louisiana to exercise jurisdiction over CSS. Coastal Credit, 96-0797 at p. 6, 685 So.2d at 468.


author: FREDERICKA HOMBERG WICKER, Judge.

text:
    NOVELAIRE TECHNOLOGIES, L.L.C. v. Martin Kenneth HARRISON, Barbara Bucklin & Essential Humidity Solutions, L.L.C.
    No. 06-CA-94.
    Court of Appeal of Louisiana, Fifth Circuit.
    July 25, 2006.

      A. Justin Ourso, III, David M. Kerth, Baton Rouge, Louisiana, for Plaintiff/Ap-pellee.
    Glen R. Galbraith, Hammond, Louisiana, for Defendant/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., WALTER J. ROTHSCHILD, and FREDERICKA HOMBERG WICKER.
   FREDERICKA HOMBERG WICKER, Judge.

| ^Defendants appeal a judgment dismissing their declinatory exception of improper venue and their dilatory exception of improper cumulation of actions. For the following reasons, we affirm.

Factual and Procedural History

On June 9, 2004, NovelAire Technologies, L.L.C. (“NovelAire”) filed suit in the Nineteenth Judicial District Court in East Baton Rouge Parish against defendants, Martin Kenneth Harrison (“Harrison”), Barbara J. Bucklin (“Bucklin”), and Essential Humidity Solutions, L.L.C. (“EHS”). The petition alleges that NovelAire is a limited liability company organized under the laws of the State of Georgia, with its principal business establishment in Baton Rouge, Louisiana; that Harrison and Bucklin are domiciled in Livingston Parish and are ^members of EHS; and that EHS is a Louisiana limited liability company, managed by its members, with its registered office in Livingston Parish.

NovelAire, a manufacturer of energy recovery and dehumidification equipment, including desiccant dehumidifiers, employed Harrison as a designer in its engineering department in Baton Rouge, Louisiana. Harrison’s job duties included making improvements to the company’s product line. During his employment with NovelAire, the company developed a dehumidifier line, the DH-50, with a casing made of extruded aluminum, and began selling it to Harrison’s former employer, AAR, Corp.

NovelAire alleges in its petition that while working for NovelAire, Harrison entered into a written agreement (“Agreement”) with the company, under which (1) all improvements that Harrison conceived or made relating to NovelAire’s business were the property of NovelAire, and (2) Harrison was obliged not to disclose or use any confidential information of NovelAire without the written consent of NovelAire.

NovelAire further alleges the following: While employed by NovelAire, Harrison engaged in secret product development to pursue a business opportunity for himself. More specifically, while working for Nove-lAire, and on company time, Harrison used materials, resources, and equipment of No-velAire to secretly develop an improved design of the DH-50 and to manufacture parts for the new design, without reporting this improvement to NovelAire. Further, Harrison enlisted the assistance of a friend and employee of AAR Corp., to make inquiries of potential suppliers for components of the improved design; the results of these inquiries were communicated to Harrison at NovelAire. Bucklin also assisted Harrison, and on February 5, 2004, Harrison and Bucklin organized EHS to use the improved design to compete with NovelAire. NovelAire asserts four causes of Faction in six claims: breach of contract and breach of fiduciary duties claims against Harrison; unfair and deceptive trade practice claims against Harrison, Bucklin, and EHS; and, an intentional interference with contract claim against Bucklin.

On May 12, 2005, defendants filed two exceptions, a declinatory exception of improper venue and a dilatory exception of improper cumulation of actions. Defendants assert venue is not proper in East Baton Rouge Parish for all claims pled against defendants; consequently, the actions have been improperly cumulated.

At the hearing on the exceptions, Harrison testified that while employed by Nove-lAire in Baton Rouge, he began developing ideas that would be improvements to No-velAire’s DH-50 dehumidifier; one such idea was to create a sheet metal dehumidifier. In 2003, without informing anyone in management, he used his computer at No-velAire to work on drawings for a new sheet metal casing for a dehumidifier. He placed the drawings into a computer file on NovelAire’s computer network which contained drawings for NovelAire’s DH-125, a dehumidifier that was still undeveloped. He then had these drawings converted into machine readable code by asking Brian Chassaniol (“Chassaniol”), a fellow designer in NovelAire’s engineering department, to convert the DH-125 file drawings. Harrison subsequently enlisted Chassa-niol’s assistance to operate a NovelAire punch press machine, and punch out the sheet metal casing parts. Chassaniol confirmed this in his testimony, stating that in late March 2003 Harrison asked that he convert some drawings for a DH-125 into machine code.

Rick Thomas Granier testified that he works in the machine shop at NovelAire and that in March 2003 he observed Harrison and Chassaniol punching out sheet metal parts. When he asked Chassaniol what they were working on, | B“[h]e said it was a special unit that NovelAire didn’t know about, that they would never ever know about.”

Harrison later took the parts to a Nove-lAire brake press operator to bend them in accordance with Harrison’s drawings. He then stored the parts at NovelAire, where they remained because, “they didn’t bend up correctly.” Harrison stated “[t]here was a lot of work to be done on creating that idea using sheet metal.”

Harrison testified that he also had an idea for a dual voltage heater; this was part of his effort to create a more “all-in-one type unit.” The DH-50, as NovelAire sold it, had separate models for different voltages. Harrison had sample dual voltage heaters delivered to an electronics store rather than NovelAire, and he received an email at NovelAire with test data on a dual voltage heater. This email was part of several exhibits offered into evidence by NovelAire. NovelAire introduced emails to and from Harrison at his office at NovelAire regarding vendors for dehumidifier supplies. Also, NovelAire introduced email correspondence between Harrison at his NovelAire office and Buek-lin at her Baton Rouge office regarding the new business.

Harrison further testified that he submitted his letter of resignation to Nove-lAire on January 23, 2004, effective February 6, 2004. He stated that it was only upon resigning that he decided to go into business for himself. Harrison testified that he did not finish designing a new and improved version of the DH-50 while at NovelAire and left the bent metal sheets, as well as the machine code for punching out the metal parts, at NovelAire. After leaving NovelAire, he continued to work on developing a working dehumidifier at a shop at Bucklin’s house in Livingston Parish; after several weeks, he was successful in his efforts. Harrison now manufactures the dehumidifiers “start to finish” at the shop in Livingston | ^Parish. Vendors referenced in his pre-resignation email correspondence, now provide supplies for his dehumidifier.

Terry Leon Parker, Director of Manufacturing and Technology at NovelAire testified that in April 2003 he asked Harrison about cost reduction improvement ideas for the DH-50. He stated that, “we went over all the major components in it, including whether or not we needed to use extrusion, or if there was ways to cut our extrusion, cost reductions on the heater, the motor, fans, and control board.” Parker testified that Harrison told him that “the extrusion was a non-starter with AAR,” NovelAire’s sole customer for the DH-50 at that time. Parker also testified that he assembled the sheet metal parts that Harrison punched out at NovelAire and left behind at the company, into the casing for a dehumidifier and they fit.

Two Baton Rouge vendors for EHS testified. William J. Mattox, II (“Mattox”), founder and director of Inkontrol, Inc. (In-kontrol), a Baton Rouge business, testified that in 2003 and for several years prior, Inkontrol sold printed circuit boards to NovelAire for use in its DH-50 dehumidifier. The company now sells the circuit boards to EHS. Mattox stated that he and Harrison discussed dual voltage in 2003; he also identified a copy of Inkontrol’s order entry log reflecting that Harrison first ordered printed circuit boards for his new business on January 20, 2004, prior to his letter of resignation, dated January 23, 2004. Fred Harry Bauerle, branch manager at a Ralph’s Industrial Electronic’s Supplies (“Ralph’s”), testified that Bueklin started picking up parts for EHS at his store in Baton Rouge a “little bit after” March of 2004.

Bueklin testified that she is a founding member of EHS and in charge of “most” of the financial aspects of the business. Her job duties for EHS include preparing the monthly state sales tax reports, paying all bills, and handling banking matters. She further testified that she signed each of the packing slips associated |7with In-kontrol invoices at Inkontrol’s in Baton Rouge. Included in the record are copies of Inkontrol invoices, billable to EHS, with signed packing slips. The dates on the invoices and packing slips range from April 12, 2004 to November 22, 2004. Bueklin also identified her signature on EHS checks issued to Inkontrol in payment for printed circuit boards purchased by EHS. The copies of the checks included in the record range in date from June 3, 2004 to August 24, 2004. Further, Bueklin testified that she signed for and picked up merchandise for EHS from Ralph’s in the vendor’s Baton Rouge office. The purchase order, dated May 31, 2005, and the signed invoice, dated June 1, 2005, are included in the record.

In a judgment dated July 5, 2005, the trial court dismissed both exceptions. Defendants appealed, alleging that the judgment may cause irreparable injury, pursuant to La.C.C.P. art. 2083(A) . The appeal was granted on July 5, 2005, returnable to the Court of Appeal, First Circuit. On January 31, 2006, the Supreme Court of Louisiana, after considering that all of the judges of the Court of Appeal, First Circuit had recused themselves, transferred the matter to this Court.

Law and Analysis

Cumulation of actions is the joinder of separate actions in the same judicial demand. La.C.C.P. art. 461. In order to cumulate multiple actions against the same defendant and/or join multiple defendants in the same suit, each of the actions cumu-lated must be brought in the proper venue. La.C.C.P. arts. 462 and 463. When the venue is improper as to one of the actions cumulated, that action- shall be dismissed. La.C.C.P. art. 464.

In the instant case, defendants do not dispute that venue is proper for the breach of contract claim against Harrison. However, they assert that venue is |Rimproper for the remaining five cumulated claims, i.e., the breach of fiduciary duties claim against Harrison, the unfair and deceptive trade practice claims against Harrison, Bucklin, and EHS, and the intentional interference with contract claim against Bucklin. Accordingly, defendants contend that these five improperly cumulated claims should be dismissed, or the entire suit should be transferred to Livingston Parish.

Because venue is a question of law, the appellate court should conduct a de novo review of the record. Elliott v. Amato and Creely, 05-0376, (La.App. 1 Cir. 3/29/06), 934 So.2d 779; Boes Iron Works, Inc. v. Travelers Cas. And Sur. Co. of America, 05-782 (La.App. 5 Cir. 3/28/06), 927 So.2d 553, 555. Venue means the parish where an action or proceeding may properly be brought and tried under the rules regulating the subject. La.C.C.P. art. 41. Generally, an action against an individual who is domiciled in the state shall be brought in the parish of his domicile, and an action against a domestic limited liability company shall be brought in the parish where its registered office is located. La.C.C.P. art. 42(1) and (2). However, these general rules are subject to certain exceptions, which are an extension, supplement, and legal part of the general venue provisions, rather than exceptions requiring strict construction. La.C.C.P. art. 43; Elliott v. Amato and Creely, 05-0376 (La.App. 1 Cir. 3/29/06), 934 So.2d 779. A plaintiff may choose any supplementary venue provided by law that fits the particular circumstances of his claims. Sorrento Companies, Inc. v. Honeywell Intern., Inc., 04-1884 (La.App. 1 Cir. 9/23/05), 916 So.2d 1156, 1162, writ denied, 05-2326 (La.3/17/06), 925 So.2d 541.

In the present matter, plaintiff asserts venue is proper pursuant to La.C.C.P. arts. 74 and 76.1. La.C.C.P. art. 74 provides, in pertinent part:

|c)An action for the recovery of damages for an offense or quasi offense may be brought in the parish where the wrongful conduct occurred, or in the parish where the damages were sustained. An action to enjoin the commission of an offense or quasi offense may be brought in the parish where the wrongful conduct occurred or may occur.

La.C.C.P. art. 76.1 provides that, “[a]n action on a contract may be brought in the parish where the contract was executed or the parish where any work or service was performed or was to be performed under the terms of the contract.” A plaintiff invoking the provisions of La.C.C.P. arts. 74 and 76.1 must allege sufficient facts to prove that the chosen venue is proper. Sorrento Companies, Inc. v. Honeywell Intern., Inc., 916 So.2d at 1162.

As stated infra, defendants contend that venue is not proper for the breach of fiduciary duties claim, the unfair and deceptive trade practice claims, and intentional interference with contract claim.

In its petition, NovelAire asserts that Harrison owed fiduciary duties of loyalty and good faith to his employer, Nove-lAire, including a duty not to compete with his employer during his employment or to injure his employer. NovelAire further asserts that during and after his employment with NovelAire, Harrison breached these fiduciary duties. Some breaches of a fiduciary are classified as ex delicto, while others are ex contractu. Young v. Adolph, 02-67 (La.App. 5 Cir. 5/15/02), 821 So.2d 101, 106. The distinction is that ex con-tractu breaches arise from the breach of a special obligation between the parties and ex delicto breaches from the violation of a general duty. Id. It appears that Nove-lAire’s breach of fiduciary duties claim is delictual in nature. However, for analysis purposes we will consider proper venue for both ex contractu and ex delicto breaches by a fiduciary. If the breach of fiduciary duty claim is considered ex contractu, then the action on the contract may be brought in the parish where the contract was executed or the parish where any work or service was performed or was to be 1 inperformed under the terms of the contract. La.C.C.P. art. 76.1. Therefore, as with the breach of contract claim against Harrison, venue would be proper in East Baton Rouge Parish. If the breach of fiduciary duty is considered delictual in nature, then the action for the recovery of damages may be brought in the parish where the wrongful conduct occurred, or in the parish where the damages were sustained. La.C.C.P. art. 74. NovelAire alleges that Harrison was guilty of wrongful conduct during his employment in East Baton Rouge Parish. Therefore, venue is proper in East Baton Rouge Parish.

In addition to the breach of contract and fiduciary duties claims, Nove-lAire asserts unfair and deceptive trade practice claims against all three defendants and an intentional interference with contract claim against Bucklin. In cases alleging unfair trade practices, as well as tortious interference with contract claims, venue has been found to be proper under La.C.C.P. art. 74, in the parish where the wrongful conduct or breach of duty occurred. Long Leaf Vending, Inc. v. Louisiana Coca-Cola Bottling Co., 97-1359 (La.App. 4 Cir. 4/8/98), 709 So.2d 366, 368.

NovelAire contends that the use by Harrison, EHS, and Bucklin of the secretly developed design and Harrison’s disclosure of this design to others, was and continues to be an unfair trade practice that was intended to harm NovelAire in violation of the Louisiana Unfair Trade Practices law. The secret development and disclosure of this design to others is alleged to have occurred in East Baton Rouge Parish. Therefore, we find that venue for Nove-lAire’s unfair and deceptive trade practice claims against the defendants is proper in East Baton Rouge Parish.

Further, NovelAire alleges that Bucklin intentionally interfered in the performance by Harrison of his Agreement with NovelAire. In support of this contention, NovelAire cites certain conduct by Bucklin in East Baton Rouge InParish, e.g., e-mail correspondence between Buck-lin’s East Baton Rouge Parish office and Harrison’s East Baton Rouge Parish office, which are included in the record. There are multiple e-mails on the subject of naming the company, and in one such email, dated April 29, 2003, Bucklin advises Harrison to, “[m]ake sure you double delete all of this from your e-mail.” We find that plaintiff has alleged sufficient facts to prove that East Baton Rouge Parish is the proper venue for NovelAire’s intentional interference with contract claim against Bucklin.

Accordingly, we affirm the judgment of the trial court dismissing defendants’ decli-natory exception of improper venue and their dilatory exception of improper cumu-lation of actions.

AFFIRMED.

      . La.C.C.P. art. 2083(A), at the time this appeal was filed, provided that, "[a]n appeal may be taken ... from an interlocutory judgment which may cause irreparable injury.” By Acts 2005, No. 205, § 1, eff. Jan. 1, 2006, La.C.C.P. art. 2083 was amended to provide, "[a]n interlocutory judgment is appealable only when expressly provided by law.”


author: EDWARD A. DUFRESNE, JR., Chief Judge.

text:
    EAST END BUCKTOWN CIVIC ASSOCIATION, INC. d/b/a Bucktown Civic Association v. JEFFERSON PARISH BOARD OF ZONING ADJUSTMENTS.
    No. 06-CA-90.
    Court of Appeal of Louisiana, Fifth Circuit.
    July 25, 2006.
    Joel L. Borrello, New Orleans, Louisiana, Eileen L. Mahoney, Metairie, Louisiana, for Plaintiff/Appellee.
    Ronald L. Naquin, Karen Edginton Mil-ner, Hamilton, Brown & Babst, New Orleans, Louisiana, for Defendant/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., WALTER J. ROTHSCHILD, and FREDERICKA HOMBERG WICKER.
   EDWARD A. DUFRESNE, JR., Chief Judge.

jzThis is an appeal by Burk Property Investments, LLC, intervenor-appellant, from a judgment of the district court setting aside a determination by the Jefferson Parish Board of Zoning Adjustments (BZA) that a proposed building met the C-1 Neighborhood Commercial District zoning requirements. The judgment further invalidated a parish permit that had been issued for construction of the building. The East End Bucktown Civic Association, Inc., petitioner-appellee, initiated the present court review of the BZA decision. For the following reasons we affirm the judgment of the district court.

The Jefferson Parish Department of Inspection and Code Enforcement issued a building permit to Burk for construction of an apartment hotel in a C-l Neighborhood Commercial District in the 300 block of Old Hammond Highway. The Bucktown neighborhood association sought review of that permit by the parish |SBZA, and that body determined that the issuance of the permit was proper. The association then instituted this court action to review the decision of the BZA. The Jefferson Parish Board of Zoning Adjustments was named as defendant and Burk Property Investments, LLC intervened. After a hearing the trial judge determined that the building was not appropriate in the zoning classification and he reversed the decision of the BZA and voided the permit. Burk now appeals.

The zoning of the property in question is C-1, Neighborhood Commercial. Section 40-323 of the Jefferson Parish Zoning Ordinances, applicable to C-1 areas, states: “No building or structure shall exceed forty-five (45) feet in height.” The proposed building is to be an apartment hotel, a permitted use in C-1 areas, but its height is to be at least 75 feet. It is clear that the proposed building violates the zoning ordinance and therefore is not allowed.

Burk argues to the contrary that an apartment hotel falls within an exception to the height requirements. Specifically, it points to Section 40-737 of the zoning ordinance which exempts from height requirement appearing elsewhere in the code “churches; schools; hospitals; sanitariums; public, semipublic, and public service buildings; multi-family dwellings; office buildings and institutions.... ” It asserts that an apartment hotel is a “public, semi-public [or] public service building” within the meaning of this section. It further asserts that this has been a long standing interpretation used by the BZA. Whatever the truth of this latter assertion, we do not see how an apartment hotel could be deemed any sort of public building.

The parish zoning ordinance, Section 40-3, defines an apartment hotel as follows:

Apartment hotel shall mean a building designed for or containing both apartments and individual guest rooms or suites of rooms and apartments, wherein is maintained an inner lobby through which all tenants must pass to gain access to the apartments and catering to permanent and not transient tenants and which may furnish services ordinarily furnished by hotels such [4as drug store, barber shop, cigar and news stands, dining rooms, when such uses are located entirely within the building with no entrance from the street nor visible from any sidewalk and having no sign display visible from the outside of the building indicating the existence of such use.

We are unable to discern any basis for concluding that this would constitute a public building of any sort. By its own terms it is for permanent residents and none of its other potential services can have independent access nor can the presence of such services even be made known to the public by visible signs.

Burk further argues, however, that section 40-3 of the zoning ordinance has been amended since the decision of the district court was rendered in this case to provide a clearer definition of public or semi-public buildings as follows:

Public building or semi-public building shall mean any building frequented by the public or into which the public is invited, has access to, or has a right to resort for business, recreational, entertainment, educational, religious or other similar lawful purposes. The term public building includes governmental buildings but is not necessarily restricted to mean governmental building unless it is clear from the context of its usage that such a restrictive meaning is intended. Examples of public and semi-public buildings include, but are not limited to, office buildings, stores, malls, hotels, hospitals, churches, schools, museums, libraries, art galleries, theaters and assembly halls.

Even were we to consider this amended ordinance as controlling here, an apartment hotel would still not qualify as a public building. First, it is not named in the listed examples. Second, the one common aspect of all these examples is their open access to the public at large. An apartment hotel by its own definition is not so open. Rather it is only for permanent residents, rather than transient residents as is a hotel. Although it provides ancillary services to its residents, these services may not have separate entrances, nor may their existence be brought to the public’s attention in any way. While an argument might be made that these services would be available to the- public were it to somehow discern their existence, in the context of the entire definition these services are clearly not intended to be open to the general public. Therefore, even were we to apply the amended definition of public |sbuildings we would still conclude that an apartment hotel by its own definition is not a public or semi-public building.

For the foregoing reasons the judgment of the district court is hereby affirmed.

AFFIRMED.