author: CALOGERO, Chief Justice.

text:
    Chanda Jan Covington SPINOSA v. Joseph Thomas SPINOSA.
    Nos. 2005-C-1935, 2005-C-1940.
    Supreme Court of Louisiana.
    July 6, 2006.

      Balhoff & McCollister, Brent J. Bourgeois, Jon K. Parsons, Baton Rouge, for Applicant (No. 2005-C-1935).
    Breazeale, Sachse & Wilson, Paul M. Hebert, Jr., Michael P. Fruge’, Baton Rouge; Lowe, Stein, Hoffman, AHweiss & Hauver, Robert C. Lowe, New Orleans; Kantrow, Spaht, Weaver & Blitzer, John C. Miller, Jennifer A; Hataway, Baton Rouge, Charles W. Belsom, Jr., for Respondent (No. 2005-C-1935).
    Breazeale, Sachse & Wilson, Paul M. Hebert, Jr., Michael P. Fruge’, Baton Rouge; Lowe, Stein, Hoffman, Allweiss & Hauver, Robert C. Lowe, New Orleans, for Applicant (No. 2005-C-1940).
    Balhoff & McCollister, Brent J. Bourgeois, Jon K. Parsons, Baton Rouge; Kan-trow, Spaht, Weaver & Blitzer, John C. Miller, Jennifer A. Hataway, Baton Rouge, Charles W. Belsom, Jr., for Respondent (No. 2005-C-1940).
   CALOGERO, Chief Justice.

I,In this case, we must decide whether the Family Court of East Baton Rouge Parish has subject-matter jurisdiction to decide issues arising from a former wife’s petition to partition community property. The subject-matter jurisdiction question arises from two unusual circumstances. First, the former wife’s petition to partition community property names as a defendant, in addition to her former husband, a trust settled by her and her former husband during their marriage, to which she now claims her former husband fraudulently diverted community funds without her permission. Thus, the question arises whether the family court has subject-matter jurisdiction over the wife’s claims against the third-party trust. Secopd,;the former wife’s petition to partition community property asserts a relative nullity under La.Code of Civ. Proc. art. 2004 of a 1990 “Judgment Authorizing Adoption of Matrimonial Agreement” entered by the 19th Judicial District Court of the Parish of East Baton Rouge, which authorized the former spouses to adopt a separate property regime. Thus, the question arises whether the family court has subject-matter jurisdiction under La.Rev.Stat. § la13:1401(A)(2) to annul a judgment issued by the 19th Judicial District Court, the court which had jurisdiction over such an action in 1990, prior to the Legislature’s expansion of the family court’s jurisdiction.

In addition to the subject-matter jurisdiction question, we must determine whether the Family Court of East Baton Rouge Parish is the proper venue to resolve the former wife’s petition to partition community property and especially her claims against the third-party trust.

The family court and the court of appeal concluded that subject-matter jurisdiction and venue are proper in the East Baton Rouge Parish Family Court. For the reasons set forth below, we affirm.

FACTS AND PROCEDURAL HISTORY

On July 8, 1980, Chanda Jan Covington Spinosa (hereinafter “Mrs. Spinosa”) and Joseph Thomas Spinosa (hereinafter “Mr. Spinosa”) were married in the U.S. Virgin Islands. Thereafter, they established their matrimonial domicile in East Baton Rouge Parish. Almost ten years later, in 1990, Mr. and Mrs. Spinosa jointly signed a “Petition for Adoption of Matrimonial Agreement,” which the 19th Judicial District Court authorized in a judgment. As a result, the Spinosas purportedly terminated their community property regime, thereby creating a separate property regime. This judgment, which was recorded on January 10, 1990, provides that “all property acquired during the existence of the marriage with community things and the fruits of community things, shall be jointly owned separate property belonging to each spouse.” The parties did not coincidently partition or divide their property.

| ^During their marriage, the Spinosas operated a real estate business composed of multiple companies that were involved in the acquisition, development, and management of real estate projects. This real estate business eventually flourished, and according to Mrs. Spinosa, in October of 1998, was worth an alleged $53,894,765.00.

On January 2, 2000, Mr. and Mrs. Spino-sa physically separated, and on January 10, 2000, Ms. Spinosa filed a “Petition for Divorce.” Mr. Spinosa responded with an “Answer to Petition for Divorce,” alleging, among other things that the community property regime between the parties had been terminated by the 1990 matrimonial agreement and judgment. A judgment of divorce was entered on September 27, 2000.

Following the divorce, Mr. Spinosa insisted that Mrs. Spinosa’s share of the real estate holdings was less than a half million dollars. On February 15, 2001, Mrs. Spi-nosa filed a “Petition for Judicial Partition of Community Property.” She alleged that the separation of property agreement was void and of no force or effect, and she sought to annul the 1990 judgment of the 19th Judicial District Court. In response to this petition, Mr. Spinosa filed exceptions of prescription, no cause of action, no right of action, and lack of subject-matter jurisdiction. On July 13, 2001, the East Baton Rouge Parish Family Court judge overruled all of the exceptions, and allowed Mrs. Spinosa to amend her petition to include a request to nullify the 1990 judgment. Mrs. Spinosa filed her “First Amended Petition,” in which she sought to nullify the 1990 judgment because of fraud and ill practices. She alleged that she first discovered the fraudulent acts and/or ill practices in December 2000, which was less than one year prior to the filing of her petition.

|4Mr. Spinosa filed an application for supervisory writs with the First Circuit Court of Appeal from the family court decision overruling his exceptions. After granting the writ, the First Circuit remanded the case to the family court and ordered that Mrs. Spinosa be permitted to amend her second petition to state a cause of action. In a “Second Amended Petition,” she explained that the fraudulent acts and/or ill practices were discovered only after Mr. Spinosa, in response to a discovery request, produced business records, which documented his treatment of community assets under his exclusive direction and control. That production of records was in December 2000.

Following several additional motions, Mr. Spinosa filed a motion for separate trials, and supplemental exceptions of prescription, failure to join an indispensable party, lack of subject-matter jurisdiction, no cause of action, and no right of action. Shortly thereafter, Mrs. Spinosa filed a “Third Supplemental and Amending Petition” in which she added the Spinosa Class Trust (hereinafter “Trust”) as a defendant. In the process of doing so, she amended many of the petition’s allegations to include references to property belonging to the Trust. Again, Mr. Spinosa responded by filing exceptions of prescription, vagueness, lack of subject-matter jurisdiction, no right of action, no cause of action, and failure to join an indispensable party. The Trust also responded to the petition, filing exceptions of improper venue, lack of subject-matter jurisdiction, non-joinder of an indispensable party, and no cause of action.

The family court conducted a hearing regarding the pending exceptions and motions on November 13, 2003. The family court denied all of the exceptions urged by Mr. Spinosa and by the Trust. Of particular interest is the family court’s thirty-nine pages of written reasons, which overruled the exceptions of subject-matter jurisdiction raised by Mr. Spinosa and the Trust and the exception of improper venue.

| J3oth Mr. Spinosa and the Trust applied for supervisory writs. The First Circuit exercised supervisory review over the exception of improper venue and found that the action as it affects the Trust does not fall within the scope of the actions contemplated or specifically authorized by the trust code. The court of appeal found no merit in the defendants’ remaining exceptions. Finding that these exceptions were interlocutory in nature, the First Circuit declared that there is an adequate remedy on appeal.

Mr. Spinosa, and the Trust filed writs of certiorari in this court, seeking reversal of the lower courts’ rulings. In the defendants’ applications, Mr. Spinosa and the Trust, once again, raised the exceptions of no cause of action, prescription, lack of subject-matter jurisdiction, improper venue, and failure to join an indispensable party. We granted writs primarily to consider the rulings on subject-matter jurisdiction and venue. Spinosa v. Spinosa, 05-C-1935 (La.3/17/06), 925 So.2d 521. We decline- to consider the remainder of the exceptions, all interlocutory in nature, because those exceptions have been denied by the lower courts, and the parties are thus free to raise them anew.

DISCUSSION

As demonstrated by the above discussion of the facts and procedural history, the ultimate resolution of the myriad issues in this case will depend on numerous considerations. For example, the exceptions of no cause of action raised by the defendants suggest that no Louisiana substantive or procedural law (and particularly no provision of the Louisiana Trust Code) would allow Mrs. Spinosa to collect monies directly from the third-party trust, even if she could somehow prove that Mr. Spinosa has improperly diverted community property into that trust. We decline to | ficonsider those issues at this stage of the proceedings because we believe a more fundamental question must be answered before any Louisiana court can decide the issues raised by the defendants’ other exceptions, which we do not address in this opinion.

The fundamental question that must be answered in this case before the other exceptions can properly be addressed is a question that we consider to be solely within the purview of the Family Court of East Baton Rouge Parish, as further explained below. That question relates to the classification of the property Mrs. Spi-nosa claims belongs to the community that she alleges still exists between herself and Mr. Spinosa. Virtually all of Mr. Spinosa’s exceptions are rooted in his argument that all the community property ever owned by himself and Mrs. Spinosa was either apportioned pursuant to the 1990 matrimonial agreement, or placed by him and Mrs. Spinosa in the third-party trust. Mrs. Spi-nosa claims that the 1990 matrimonial agreement is null and that assets held by the trust are actually community property that Mr. Spinosa has improperly diverted to the trust, specifically without her assent or concurrence. Until the question of the classification of the property is resolved as community, separate, or neither (the latter if the property belongs to the trust), a number of the exceptions filed by the defendants should not be decided.

Seen from that perspective, our conclusions, further explained below, that the issue of whether subject-matter jurisdiction and venue are proper in the Family Court of East Baton Rouge Parish, is grounded in the fact that the first question to be answered in this complex litigation is whether the property Mrs. Spinosa claims is in fact community property, or something else, as Mr. Spinosa claims. The family court’s attention in resolution of Mrs. Spinosa’s claims must first be directed to the classification and division of community property.

17With the above considerations in mind, this opinion will therefore address the two matters that we consider to be the “threshold” issues in this case, that is, whether the Family Court of East Baton Rouge Parish has subject-matter jurisdiction over Mrs. Spinosa’s petition to partition community property and whether venue properly lies in the Family Court of East Baton Rouge Parish.

A. DECLINATORY EXCEPTION OF SUBJECT-MATTER JURISDICTION

Subject-matter jurisdiction is defined by the Louisiana Code of Civil Procedure as “the legal power and authority of a court to hear and determine a particular class of actions or proceedings, based upon the object of the demand, the amount in dispute, or the value of the right asserted.” La.Code Civ. Proc. art. 2. As to the source of the family court’s jurisdiction, the Louisiana Constitution provides that “[njotwithstanding any contrary provisions of Section 16 of this Article, juvenile and family courts shall have jurisdiction as provided by law.” La. Const, art. V, § 18. The Louisiana Constitution also states that “the legislature may provide by law that a family court has jurisdiction of cases involving title to movable and immovable property when those cases relate to the partition of the community property and the settlement of claims arising from matrimonial regimes when such action arises as a result of divorce or annulment of marriage.” La. Const, art. V, § 16. Consequently, we will examine those laws enacted by the legislature that grant jurisdiction to the East Baton Rouge Parish Family Court.

By virtue of La.Rev.Stat. 13:1401, the East Baton Rouge Parish Family Court has exclusive jurisdiction over certain domestic matters. In particular, La.Rev. Stat. § 13:1401(A)(2) enumerates the following actions arising out of a marriage or the termination of a marriage:

A. There is hereby established the family court for the parish of East Baton Rouge, which shall be a court of | ^record with exclusive jurisdiction in the following proceedings:
* * *
(2)(a) All actions between spouses or former spouses for partition of community property and property acquired pursuant to a matrimonial regime.
(b) All actions for the termination or modification of a matrimonial regime.
(c) All actions for the settlement and enforcement of claims arising from matrimonial regimes or the establishment thereof.
(d) All actions between former spouses seeking the enforcement of a judicial or contractual settlement of claims provided in this Subsection.

Thus, La.Rev.Stat. § 13:1401(A)(2) clearly empowers the family court to classify, as community or separate, assets belonging to a married or formerly married couple. Thus, the family court has jurisdiction 'to resolve conflicts that concern classification of such assets.

This court has not heretofore explored the scope of the family court’s jurisdiction as provided by the provisions of La.Rev. Stat. § 13:1401(A)(2). We will, therefore, examine as possibly persuasive authority the treatment of this jurisdictional issue in previous court of appeal cases. The First Circuit has addressed the jurisdictional scope of the East Baton Rouge Parish Family Court from time to time.

First, in Ransome v. Ransome, the First Circuit determined that the family court was the court of proper jurisdiction under La.Rev.Stat. § 13:1401(A)(2)(d), over an action “between former spouses seeking enforcement of a contractual settlement of claims.” 99-1291, p. 5 (La.App.1 Cir. 1/21/00), 791 So.2d 120,123. In Ransome, lathe plaintiff filed a petition against her former husband to recover damages for breach of a community property partition agreement, and for enforcement of an agreement entitling her to community assets. Id. at 3, 791 So.2d at 121. The First Circuit found that the Legislature specifically granted the family court jurisdiction over “all actions” for partition of community property between spouses or former spouses, termination or modification of matrimonial regimes, settlement and enforcement of claims arising from matrimonial regimes, and the enforcement of these enumerated claims between former spouses. Id. at 5, 791 So.2d at 122. More significantly, however, the First Circuit explained in that case:

Although our decision is dictated by the legislation, our holding gives deference to the intent of the legislature which obviously has been to expand the jurisdiction of the Family Court to provide one forum to resolve disputes between spouses or former spouses which involve issues related to their marriage.

Id. at 5-6, 791 So.2d at 123. Citing La. Rev.Stat. § 13:1401(A)(2)(d), the First | mCircuit concluded that the East Baton Rouge Parish Family Court had exclusive jurisdiction over the plaintiffs claims despite “the fact the claim is titled as an action for breach of contract, specific performance, and damages.” Id.

Then, in Gerald v. Gerald, just five months later, the First Circuit concluded that the Nineteenth Judicial District Court did not have subject-matter jurisdiction over a former wife’s community property partition claim involving a community interest in the monthly State retirement benefit then being paid to her former husband. 99-1328, p. 1 (La.App. 1 Cir. 6/23/00), 762 So.2d 1241, 1242. While the parties had earlier signed a community property settlement agreement partitioning the community of acquets and gains, there had been no apportionment of their interests in the retirement plan. Id. Five years after signing the community property settlement agreement, the plaintiff learned that her former husband had retired, and she initiated a proceeding seeking a judgment awarding her the full amount of her interest in the retirement plan. Id. The First Circuit found that the Family Court of East Baton Rouge Parish by virtue of La.Rev.Stat. § 13:1401 has exclusive jurisdiction over actions “whether between spouses or ‘former spouses,’ for partition of community property and property acquired pursuant to a matrimonial regime.” Id. at 3, 762 So.2d at 1243. The First Circuit concluded that since “this matter involves an action between former spouses seeking partition of community property, the Family Court of East Baton Rouge Parish is the court of proper jurisdiction,” rather than the district court. Id.

Following Gerald and Ransome, which favor a broad interpretation of the family court’s subject-matter jurisdiction, the First Circuit interpreted the scope of La. Rev.Stat. § 13:1401(A)(2) in Carpenter v. Carpenter to exclude those cases that do not involve a partition of community property or arise from a matrimonial regime. 00-0096 (La.App. 1 Cir. 3/28/01), 797 So.2d 712. In Carpenter, prior to the parties’ divorce, a judgment was rendered against the defendant husband, who while in control of assets belonging to his mother’s succession had made unauthorized deposits into the parties’ community-owned patio furniture business bank account. Carpenter at 2, 797 So.2d at 714. Shortly thereafter, the parties divorced and partitioned their property, but they did not include in the community property settlement the husband’s debt to his mother’s succession. Id. at 2-3, 797 So.2d at 714. Almost seven years after the termination of the community, the succession obtained a judgment declaring the succession’s claim to be a debt of the former community and to be a joint and solidary obligation of the formerly married couple. Id. The plaintiff wife paid the full amount owed under the judgment, and then instituted an action against her former husband in the Nineteenth Judicial District Court, seeking reimbursement. Id. at 3, 797 So.2d at 714. The defendant argued that since this was a claim for reimbursement for her payment of a community debt, it fell within the family court’s exclusive jurisdiction over “all actions for the settlement of claims arising from matrimonial regimes.” Id. Finding that the issues to be resolved concerned co-debtor obligations and not the classification of community acquets and gains, the First Circuit found that the claims did not constitute actions for claim settlements arising from matrimonial regimes within the meaning of La.Rev.Stat. 13:1401(A)(2). Carpenter at 5, 797 So.2d at 716. In doing so, it also distinguished Carpenter from Gerald and Ransome when it stated: Carpenter at 5, 797 So.2d at 715-716. Thus, the Gerald case, which involved a contest over community-owned retirement plan proceeds, clearly indicates that cases involving the classification of property as community or separate, like the instant case, fall within the subject-matter jurisdiction of the East Baton Rouge Parish Family Court, while the Carpenter case indicates that claims involving spouses, who are respectively obligated as co-debtors to a third-party creditor, do not fall within the jurisdiction of the family court.

Both the Ransome and Gerald cases dealt with issues incidental to the parties’ marriage. The parties were trying to settle issues between themselves relating to their marriage. Such is not' the case here. This matter does not pertain to the classification of property or the determination of responsibility of debts as between the parties. In the case sub judice there is a third party (the succession) seeking satisfaction of a judgment from solidary obligors. One of the obli-gors paid the obligation in full and is now seeking contribution from the other obligor. |i?The issues to be resolved are not between the former spouses, as such, but as co-debtors obligated to the succession.

We find the analysis of the First Circuit’s three cases (Gerald, Ransome, and Carpenter) helpful in deciding the present exceptions of a lack of subject-matter jurisdiction raised by Mr. Spinosa and the Trust. With this in mind, we assess La. Rev.Stat. § 13:1401(A)(2) as we apply this statute to the facts in the present case.

1. Subject-matter Jurisdiction over Ms. Spinosa’s Claims against Mr. Spino-sa

First, Mr. Spinosa argues that the family court lacks subject-matter jurisdiction over Mrs. Spinosa’s claim that he breached a corporate fiduciary duty and over her claim that he is obligated under the “single business enterprise” theory because the jurisdictional statute for the family court, La.Rev.Stat. § 13:1401(2), limits the court’s subject-matter jurisdiction to four distinct actions, and that claims for breach of corporate fiduciary duty or any other action based on a single business enterprise theory are not included. He alleges that Mrs. Spinosa’s breach of fiduciary duty and single business enterprise claims do not “relate” to their marriage.

Because Mrs. Spinosa is seeking to settle and/or enforce her rights to community assets, the family court concluded that it had subject-matter jurisdiction over Mrs. Spinosa’s claims that Mr. Spinosa operated the community enterprise as a |13single business enterprise and her allegations that he breached his duty owed to her. The family court judge found that Mrs. Spinosa’s claims all arise from the matrimonial regime because all of her claims are based on her position that Mr. Spinosa’s actions have deprived her of her rights in community property.

We agree with the family court. Mrs. Spinosa’s claims are issues incidental to her former marriage because Mrs. Spinosa alleges the family real estate business was operated during the marriage, and that the community enterprise had never been partitioned, regardless of whether the 1990 matrimonial agreement is determined to be null. As the family court astutely points out in the reasons for judgment, this case is different from Carpenter because “regardless of whether the community terminated on January 10, 1990 (when the judgment and agreement were executed) or on January 10, 2000 (the date Candy Spinosa filed a Petition for Divorce), the parties have never amicably or judicially partitioned their community property.” Certainly, the family court has subject-matter jurisdiction to determine whether Mrs. Spinosa is correct in her argument that the assets acquired through this “single business enterprise” are community property. La.Rev.Stat. § 13:1401 provides that the family court has exclusive jurisdiction over community property classifications and the partitioning of community and separate property.

Next, Mr. Spinosa argues that the East Baton Rouge Family Court has no subject-matter jurisdiction over Mrs. Spinosa’s action to annul the 1990 judgment because that judgment was issued by the Nineteenth Judicial District Court. He argues that none of the provisions of La. Rev.Stat. § 13:1401 grant the family court subject-matter jurisdiction over Mrs. Spi-nosa’s nullity action because hers is an action based on fraud or ill practices under La.Code of Civ. Proc. art. 2004, not an action “relating to their former marriage.” Further, Mr. Spinosa points out that under Laj|4Code of Civ. Proc. art. 2006, an action to annul a judgment for vices of substance must be brought “in the trial court, even though the judgment sought to be annulled may have been affirmed on appeal, or even rendered by the appellate court.”

The language of La.Code of Civ. Proc. art.2006 relied upon by Mr. Spinosa has been interpreted to mean that-the nullity “action must be brought in the same judicial district court which rendered the judgment sought to be annulled,” albeit one of the district court’s other divisions. Piper v. Olinde Hardware & Supply Co., Inc., 288 So.2d 626, 629 (La.1974). In Piper, the judgment sought to be annulled by the plaintiff was rendered by a division of the Nineteenth Judicial District Court, and the plaintiff sought to annul the judgment in a different division of the same court. Id. The defendant argued that only the division of the district court that rendered the judgment has jurisdiction to declare the judgment null. Id. This court overruled the defendant’s exception, finding that the attacking party need only bring the nullity action in the same district court, not the same division of the district court that rendered the judgment. Id. Thus, the Piper court’s holding regarding a court’s subject matter jurisdiction over nullity actions focused on the trial court’s having jurisdiction rather than on which particular division of a district court had the authority bo enter the judgment.

We find that the family court has subject-matter jurisdiction over Mrs. Spinosa’s nullity action despite the fact that the 1990 judgment validating the matrimonial agreement was rendered by the Nineteenth Judicial District Court, a Baton Rouge court, which in 1990 but not in 2001, had jurisdiction over matrimonial regimes. Subsequent to the 1990 district court judgment, the law divested the Nineteenth Judicial District Court of subject-matter jurisdiction over matrimonial agreements and actions to partition community property, and gave that jurisdiction to the Family Court of East Baton Rouge Parish. La. Const, art. 5 §§ 16, 18; La.Rev.Stat. 13:1410. Today, the family court continues to possess exclusive jurisdiction over such matters. La. Const, art. § 16(A)(3). The facts of this case are distinguishable from Piper. In Piper, the district court continued to be the court with jurisdiction over the subject matter of the judgment challenged in the nullity action. In contrast, however, the 19th Judicial District Court in the year 2001, when this case was filed, no longer had jurisdiction over the subject-matter of this nullity action of the plaintiffs, in as much as jurisdiction over community property matter by then lay in the family court.

Mrs. Spinosa has filed a petition for partition of community property. As a basis for her claim that certain properties held in the Spinosa Class Trust are, in fact, community property, she alleges that the 1990 judgment was obtained through fraud or ill practices. She is therefore asking the family court to examine the matrimonial agreement, the evidence she presents to establish the circumstances under which the matrimonial agreement was executed, and the documents, such as financial statements that were presented to account for the community’s net worth, in order to allow the court to properly classify the property as either community, separate, or neither (the later if the property has properly been placed in the Spinosa Class Trust). Admittedly, Mrs. Spinosa’s claims are somewhat more complicated than those involved in the typical community property partition; however, her claims, at least at this juncture in 11fithe litigation, only require the family court to determine whether certain properties are community, which is the fundamental question that the family court must first decide when the merits trial is held. Therefore, we conclude that Mrs. Spinosa has properly filed the nullity action in the East Baton Rouge Parish Family Court, today’s counterpart to the Nineteenth Judicial District Court regarding community property matters.

2. Subject-matter Jurisdiction over the claims against the Spinosa Class Trust

The Trust argues that the family court’s jurisdiction does not extend to claims against third parties, such as the Trust, here. The Trust argues that neither Mr. nor Mrs. Spinosa own the property held in trust and any claim brought against the trust must be brought in district court, not family court. The family court disagreed. That court concluded that Mrs. Spinosa’s addition of the Trust as a defendant did not destroy the court’s jurisdiction. In reaching this decision, it again relied on La.Rev.Stat. § 13:1401(A)(2)(c), finding that the provisions of the statutory grant of special jurisdiction are not limited to actions “between spouses or former spouses,” but extend to all actions within its purview, including Mrs. Spinosa’s petition to partition community property, some of which is allegedly held by the Trust. The family court surmised that because Mrs. Spi-nosa sought recognition of her community property interest in assets held by the Trust (allegedly because her former husband improperly placed them there), then the action against the Trust arises from settlement and enforcement of the matrimonial regime, and is, thus, within its jurisdiction.

Like the plaintiff in Gerald, Mrs. Spino-sa is seeking to have recognized her alleged interest in any community property held by the Trust and to enforce her alleged claim to an undivided one-half interest in the trust and/or much of its assets. She is merely seeking to have certain community property allegedly taken by her |17former husband and improperly deposited in the trust, properly classified as community property. This determination is one that is well within the statutory grant of special subject-matter jurisdiction granted to the family court.

Mrs. Spinosa’s petition seeks a partition of community property. Inherent in this partition is the family court’s classification of the property and its ability to enforce and settle claims with regard to a matrimonial regime. The Louisiana Civil Code defines a matrimonial regime as a “system of principles and rules governing the ownership and management of the property of married persons as between themselves and toward third persons.” La. Civ.Code art. 2325. Because Mrs. Spinosa alleges that Mr. Spinosa used the Trust to divert community assets over which he maintained exclusive control, Mrs. Spinosa is asserting a claim that specifically affects the matrimonial regime. Under Ransome and Gerald, this is clearly a “dispute between former spouses which involved issues related to their marriage.” Ran-some, 791 So.2d at 123.

While the Trust argues strenuously that the family court does not have jurisdiction over an action between a former spouse and a third party, this argument fails to recognize the specific language of La.Rev. Stat. § 13:1401(2)(c), granting the family court exclusive jurisdiction over “all actions for the settlement and enforcement of claims arising from matrimonial regimes or the establishment thereof.” Unlike subsections 2(a) and 2(d) of La.Rev.Stat. § 13:1401, the jurisdiction established by subsection 2(c) over actions for the settlement and enforcement of claims is not limited to actions “between spouses or former spouses.”

Further support for our conclusion that the Legislature intended to expand the original and special jurisdiction of the family court to cover claims like those asserted against the Trust is found in the fact that the 1999 Louisiana Legislature repealed La Rev.Stat. § 13:1415, which following 1997 had granted the family court jurisdiction over matrimonial agreements. That provision was coincidentally repealed and incorporated in the 1999 enacted La.Rev. Stat. § 13:1401, which had previously been limited to “all actions between spouses or former spouses for the settlement and claims arising from a matrimonial regime or the establishment thereof.” (Emphasis added). This specific inclusion of the language “between spouses and former spouses” in only two of the four enumerations of jurisdiction set forth in the current version of La.Rev.Stat. § 13:1401, coupled with the exclusion of that very same language in the other two, including subsection (2)(c), evidence the Legislature’s intent to include concurrent claims against litigants other than former spouses, such as Mrs. Spino-sa’s claim against the Trust.

Thus, we conclude that the East Baton Rouge Parish Family Court has jurisdiction over Mrs. Spinosa’s effort to determine whether the trust contains assets that are actually community funds improperly diverted by Mr. Spinosa. If it is found that the property she claims is not community, then the family court will no longer have before it claims against the Trust. Following this classification, if the family court concludes that some or all of the assets in the Trust are in fact community property, what will follow in terms of ancillary procedural or substantive remedies will be for the family court to decide.

B. DECLINATORY EXCEPTION OF IMPROPER VENUE

The Spinosa Class Trust raised the declinatory exception of improper venue in this case, in response to Mrs. Spinosa’s “Third Supplemental and Amending Petition,” which added the Trust as a defendant. According to the Trust, Mrs. Spinosa’s claims against the Trust cannot be pursued along with her claims against Mr. Spinosa in East Baton Rouge Parish Family Court because the only proper venue for a claim against the Trust is St. Tammany Parish, the domicile of the sole trustee, Lawrence Randall Spinosa. In support of this argument, the Trust cites La. Rev.Stat. § 9:1725(5), a provision of the Louisiana Trust Code that defines “proper court.”

The Family Court of East Baton Rouge Parish and the court of appeal both found non-meritorious this contention of the Trust’s that the only proper venue for an action against the Trust is St. Tammany Parish. The decision of both of the lower courts was based primarily on their findings that La.Rev.Stat. § 9:1725(5) applies only to actions “under” the trust code, and that Mrs. Spinosa’s action against the trust was not an action under the trust code.

La.Rev.Stat. § 9:1725 at Subsection (5) defines “proper court” in pertinent part, as follows:

Except when the context clearly indicates otherwise, as used in this Code:

*****
(5) “Proper court” in the case of an inter vivos trust means the district court of the parish designated by the settlor, or if no designation is made, the district court of the parish of the trustee’s domicile when only one trustee is named....

(Emphasis added.) According to the Trust, no parish was designated by the settlors of the Spinosa Class Trust as the “proper court,” and the “sole trustee” is Lawrence Randall Spinosa, Mr. Spinosa’s brother, whose domicile is St. Tammany Parish. Thus, the Trust argues, the only proper venue for a suit against the Trust, no matter what the nature of the allegations, is St. Tammany Parish. Accordingly, the Trust argues in this court that the court of appeal erred as a matter of law by affirming the family court’s decision overruling the Trust’s declinatory exception of improper venue.

In addition to the, definition of the phrase “the proper court” set forth in La. Rev.Stat. § 9:1725(5), the Trust seeks to support its exception of improper venue by pointing to La.Rev.Stat. § 9:1724, which states as follows:

The provisions of this Code shall be accorded a liberal construction in favor of freedom of disposition. Whenever this Code is silent, resort shall be had to the Civil Code or other laws, but neither the Civil Code nor any other law shall be invoked to defeat a disposition sanctioned expressly or impliedly by this Code.

The Trust asserts that Ms. Spinosa’s claim falls within the actions contemplated by the trust code, and, therefore, that no law outside the trust code, including the general venue provisions, “may be invoked to defeat a disposition sanctioned thereunder.”

La.Code of Civ. Proc. art. 41 defines venue as “the parish where an action or proceeding may properly be brought and tried under the rules regulating the subject.” The general rules of venue are set forth in La.Code of Civ. Proc. art. 42. However, under the express provisions of La.Code of Civ. Proc. art. 43, those general venue rules are “subject to” the “exceptions” set forth in La.Code of Civ. Proc. arts. 71 through 85 and “as otherwise provided by law.” This court has held that the “exceptions” alluded to at La.Code of Civ. Proc. art. 43 (and set forth in La.Code of Civ. Proc. arts. 71 through 85) “are an extension, supplement and legal part” of the general venue provisions set forth in La.Code of Civ. Proc. art. 42. Jordan v. Central Louisiana Elec. Co., Inc., 95-1270, p. 1 (La.6/23/95), 656 So.2d 988, 989, quoting Kellis v. Farber, 523 So.2d 843 (La.1988).

121 This court’s announcement in Kellis, that the venue rules set forth in La.Code of Civ. Proc. arts. 71 through 85 “are an extension, supplement, and legal part” of the general venue provisions set forth in La.Code of Civ. Proc. art. 42, was a departure from previous decisions, which had held that all of the exceptions to the general venue rules, including those recognized by La.Code of Civ. Proc. Art. 43 and set forth in La.Code of Civ. Proc. arts. 71 through 85, are in derogation of a common right and therefore must be strictly construed. Hawthorne Oil and Gas Corp. v. Continental Oil Co., 377 So.2d 285, 287 (La.1979). Because of that, a party claiming the benefit of one of the exceptions to the general venue rules was required to bring himself “clearly within the exception.” Id. The Kellis case explicitly held that the exceptions recognized in La.Code of Civ. Proc. art. 43 and set forth in La. Code of Civ. Proc. art. 71 through 85 are now “an extension, supplement, and legal part” of the general venue rules, and therefore they are no longer “in derogation of common right” and subject to strict construction. However, implicit in the Kellis decision is the unstated fact that “other” exceptions to the general venue rules (i.e., exceptions other than those recognized by La. Code of Civ. Proc. art. 43, which are set forth in La.Code of Civ. Proc. arts. 71 through 85) continue to be “in derogation of common right” and therefore must be strictly construed. Accordingly, in order to carry its burden of proving that Mrs. Spinosa’s action against the trust must be filed in the parish of the sole trustee’s domicile, the Trust must meet two requirements. First, the Trust must point to an exception to the general venue rules that specifies the parish of proper venue that applies to this case. Second, the Trust must then bring itself “clearly within th[at] exception.” Hawthorne Oil and Gas Corp., 377 So.2d at 287.

Considered from that perspective, we find no merit in the Trust’s arguments in support of its declinatory exception to venue, because the Trust has not carried its burden of proving even the first of the above requirements — i.e., that there is an exception to the general venue provisions that specifies St. Tammany Parish as the proper venue in this case. The Trust claims that La.Rev.Stat. § 9:1725(5) is a provision that specifies venue in any action against the Trust in the parish of the sole trustee’s domicile. However, La.Rev.Stat. § 9:1725(5) does not even mention “venue,” much less dictate the court in which claims against the Trust must be filed. Instead, La. Stat. § 9:1725(5) does nothing more than define a term that appears in numerous statutory provisions of the Louisiana Trust Code unrelated to venue.

The lack of merit in the Trust’s arguments in this regard is. easily demonstrated by review of the specific provisions of the trust code that contain the term “proper court,” as defined by La.Rev.Stat. § 9:1725(5). Our review reveals that virtually all of those provisions fall under specific parts of the trust code related to administrative matters, such as creation, modification, and termination of trusts, or to duties and powers of trustees. Rather than dictating that actions against the Trust be filed in the “proper court,” the provisions containing that term simply grant certain powers to and/or impose certain obligations on the “proper court.”

Just as significant to our interpretation of the term “proper court” in the multiple statutory provisions that use the term are certain other statutes that do not use the term “proper court.” Significantly, La. Rev.Stat. § 9:2126, which governs “Tort liability of trust,” does not contain the term “proper court.” Although that provision contemplates a suit against trustees who have incurred personal liability for a tort committed in the course of administration of the trust, nothing in that provision | ^requires that the claim be filed in the “proper court,” or in any other designated venue. The same is true of La.Rev.Stat. § 9:2125, which governs “Contractual liability of trust.” That provision contemplates a cause of action against a trustee arising from a contract, but does not require that such an action be filed in a “proper court,” or any other court.

Ultimately, as we have previously stated, Mrs. Spinosa’s claim in this case, at least at this juncture, constitutes an action to partition community property. At this stage of the proceeding, the salient question regarding the Trust is whether any part of the assets being held by the Trust is actually community property. The trust code contains no express provision concerning the proper court to entertain an action to partition community property. In fact, even if La.Rev.Stat. § 9:1725(5) were meant to be a venue provision, as the Trust argues, that phrase simply does not appear in any article that mentions community property generally or the partitioning of community property specifically, nor in any statutory provision related to a third-party action against the trust or trustee.

As the Trust itself notes, La.Rev.Stat. § 9:1724 provides expressly that in situations in which the Trust code is silent, “resort shall be had to the Civil Code or other laws.” The general venue rules contain an express provision regarding venue for an action to partition community property. Specifically, La.Code of Civ. Proc. art. 82 provides, in pertinent part, as follows

A. Except as otherwise provided in this Article, an action to partition community property and to settle the claims between the parties arising from either a matrimonial regime or from co-ownership of former community property shall be brought either as an incident of the action which would result in the termination of the community property regime or as a separate action in the parish where the judgment terminating the | ^community property regime was rendered.

Under La.Code of Civ. Proc. art. 82(A), venue is proper in this “action to partition community property and to settle the claims between the parties arising from either a matrimonial regime or from co-ownership of former community property” in East Baton Rouge, which is the “parish where the judgment terminating the community property regime was rendered” (i.e., the judgment of divorce). Thus, the court of appeal correctly found that venue is proper in East Baton Rouge Parish Family Court under La.Code of Civ. Proc. art. 82. Accordingly, the Trust’s exception of improper venue has no merit.

In sum, we conclude that the Family Court of East Baton Rouge Parish has subject matter jurisdiction over Mrs. Spi-nosa’s petition to partition community property and the suit was not in an improper venue.

DECREE

The judgment of the court of appeal overruling the defendants’ exceptions of subject-matter jurisdiction and venue are hereby affirmed. The case is remanded to the Family Court of East Baton Rouge Parish for such further proceedings as the parties deem necessary and not inconsistent with this opinion.

AFFIRMED; REMANDED TO THE FAMILY COURT.

       Judge Dennis R. Bagneris, Sr., assigned as Associate Justice Ad Hoc, for Associate Justice Chet D. Traylor, recused.

      .At the time of the 19th Judicial District Court entered the 1990 judgment, the East Baton Rouge Family Court did not have jurisdiction over the settlement and enforcement of claims arising from matrimonial regimes. Under 1990 La. Acts No. 1009, the 19th Judicial District Court continued to have jurisdiction over such claims.

      . The validity of the January 10, 1990 matrimonial agreement and judgment is contested; however, the merits of this issue are not before this court at this time.

      . Ms. Spinosa alleges that Mr. Spinosa has told her that her share of the property is worth only $435,407.00.

      . Mr. Spinosa and the Spinosa Class Trust raised the pretermitted exceptions of no cause of action, no right of action, failure to join an indispensible party, and prescription. In addition, we do not address the family court’s treatment of peremption as this may be further explored after evidence is presented at trial. Peremption may be pleaded or it may be supplied by a court on its on motion at any time prior to final judgment. La. Civ.Code art. 3460.

      . For support, Mr. Spinosa relies on a holding of the First Circuit in a later case between tibe same parties. The First Circuit held that the East Baton Rouge Parish Court did not have subject-matter jurisdiction in a separate action filed one year later after its 2001 opinion in Ransome. In that case, the plaintiff instituted a garnishment proceeding against the former husband’s attorney, representing the former husband’s estate, after the First Circuit rendered a judgment in favor of the plaintiff for $4,588,284.50 with interest, court costs, and $50,000.00 in attorney’s fees. Ran-some v. Ransome, 01-2361, p. 3 (La.App. 1 Cir. 6/21/02), 822 So.2d 746, 750. With regard to this action, the First Circuit held that the family court lacked jurisdiction over the plaintiff's garnishment action against the attorney, finding that it was an action between a former spouse and a third party and that it was a separate and distinct proceeding from the original suit and was between different parties. Id. at 6-7, 822 So.2d at 753, and Id. at 9-10, 822 So.2d at 755.

      . In so doing, it emphasized the language amended by the Legislature in 1999. Prior to the 1999 amendment, the Legislature had granted the family court exclusive jurisdiction over partitions for community property under limited circumstances. Before the amendment, La.Rev.Stat. § 13:1401 provided in pertinent part:
      A. There is hereby established the family court for the parish of East Baton Rouge, which shall be a court of record with exclusive jurisdiction in the following proceedings:
      ⅜ ⅜ ‡ ⅜
      (2) All actions for partition of community property and for the settlement of claims arising from matrimonial regimes, when such actions arise as a result of divorce or annulment of marriage. The Nineteenth Judicial District Court for the parish of East Baton Rouge, however, shall have jurisdiction of proceedings involving partition of community property and the settlement of claims arising from matrimonial regimes when they do not arise as a result of divorce or annulment of marriage.
      1993 Acts. No. 485. The 1999 amendment, however, granted the Family Court of East Baton Rouge Parish exclusive jurisdiction over all actions for partition of community property regardless of whether it arises as a result of divorce or an annulment of marriage. That 1999 amendment remains in effect and applies in this case.

      . The family court did not address whether Mrs. Spinosa filed the nullity action in the proper court under La.Code of Civ. Proc. art. 2006 because this issue was not raised by Mr. Spinosa in'his declinatory exception. Rather, the issue was raised by Judge Downing in his dissent to the First Circuit's majority opinion.

      . La.Rev.Stat. § 13:1401 was amended in 1999 to its present state, which provides exclusive jurisdiction to the East Baton Rough Parish Family Court over all “actions between spouses or former spouses for partition of community property and property acquired pursuant to a matrimonial regime.” 1999 La. Acts No. 533. Prior to the 1999 amendment to La.Rev.Stat. § 13:1401, both the Nineteenth Judicial District Court and the East Baton Rouge Parish Family Court had authority to exercise jurisdiction over actions for partition of community property.

      . The family court noted in its reasons that, while the Trust in its memorandum to the family court asserted that St. Tammany Parish is the sole trustee’s domicile, it did not present any record evidence of that fact. Further, the family court noted that the trust instrument itself seems to indicate that Lawrence Randall Spinosa was domiciled in Orleans Parish at the time the Trust was executed on May 17, 1988. Given our conclusion herein that venue is proper in East Baton Rouge Parish family court under La. C.C.P. art. 82, it is unnecessary for us to consider whether the Trust sufficiently proved Lawrence Randall Spinosa's domicile.

      . The term "proper court” appears in the following sections of La.Rev.Stat. Title 9, the Louisiana Trust Code: 1785, 1786, 1787, 1789, 1824, 1831, 2005, 2026, 2027, 2064, 2065, 2066, 2067, 2088, 2112, 2113, 2160, 2162, 2171, 2172, 2173, 2182, 2208, 2222, and 2233.

      . The court of appeal also indicated that venue is proper in this case in East Baton Rouge Parish under the provisions of La.Code of Civ. Proc. arts. 42, 45, and 73. However, because we have found that venue is proper in East Baton Rouge Parish under the provisions of La.Code of Civ. Proc. art. 82, it is unnecessary for us to consider whether venue is also proper there under the other articles cited by the court of appeal..


source: Caselaw Access Project

author: PER CURIAM. VICTORY, J.,

license: Public Domain

text:
    STATE of Louisiana v. Matthew KELLEY.
    No. 2005-K-1905.
    Supreme Court of Louisiana.
    July 10, 2006.

      Charles C. Foti, Jr., Attorney General, Eddie J. Jordan, Jr., District Attorney, Meri M. Hartley, Assistant District Attorney, for Applicant.
    Louisiana Appellate Project, Christopher A. Aberle, Mandeville, for Respondent.
   PER CURIAM.

hThe state charged defendant with one count of possession of methamphetamine in violation of R.S. 40:967(C) and one count of possession of hydrocodone (Vicodin) with intent to distribute in violation of La. R.S. 40:967(A)(1). After the trial court heard and denied a motion to suppress the evidence, defendant entered pleas of guilty as charged on both counts, reserving his right to appeal the court’s adverse ruling on the suppression issue. State v. Crosby, 338 So.2d 584 (La.1976). The court sentenced defendant on both counts to concurrent terms of three years imprisonment at hard labor, suspended, and placed him on active probation for three years. On appeal, the Fourth Circuit found that the police had secured the evidence as the result of an illegal arrest without probable cause, reversed the trial court’s ruling on the motion to suppress, and remanded the case for further proceedings. State v. Kelley, 05-0332 (La.App. 4th Cir.6/29/05), 909 So.2d 1018 (Cannizzaro, J., dissenting). Because we agreed with the state that the conduct of the officers leading to the recovery of the ^evidence was objectively reasonable under the circumstances of their encounter with the defendant, we granted the state’s application to reverse the decision below.

According to New Orleans Police Officer Randy Garrison, the only witness to testify at the hearing on the motion to suppress, on the morning of June 7, 2004, he and his partner acted on a complaint concerning a man slouched against the steering wheel of a car parked in the 3300 block of Upper-line Street. The officers found the vehicle at the described location and observed the defendant sitting in the driver’s seat leaning forward over the steering wheel. The vehicle had out-of-state plates and the keys were in the ignition. Officer Garrison tapped on the window and defendant opened the driver’s door of the car. The officer asked defendant whether he needed medical assistance. Defendant indicated that he did not, that he was “okay,” and that he was “just there.” Defendant further explained that the vehicle, which had two flat tires, belonged to a friend but that he did not recall how he got in the neighborhood.

At the officer’s request, defendant produced his driver’s license and a vehicle registration. Officer Garrison determined from a computer check that the license had been suspended and that the vehicle was not registered to defendant. The officer informed defendant that he was under arrest for operating a vehicle on a suspended license and asked him to step from the car for purposes of handcuffing him. When defendant got out of the car, Officer Garrison immediately spotted a clear bag containing a white powder which the officers believed was cocaine and a second bag filled with pills lying in open view on the front seat. The officers then advised defendant that he was also under arrest for drug violations. As to why he placed the defendant under arrest for operating the | avehicle when he did not actually see the vehicle in motion, Officer Garrison explained at the hearing that defendant “was, in fact, behind the wheel of the car with the keys in the ignition of the car which led me to believe that he was actually the driver of that vehicle since he didn’t live in that neighborhood.”

At the close of the hearing, the trial judge agreed with the defendant that because the officers did not actually see him operating the vehicle which, in any event, had two flat tires, the arrest for the traffic violation appeared problematic. Nevertheless, the court denied the motion to suppress on grounds that Officer Garrison and his partner had acted reasonably in approaching the car to investigate the initial complaint and to check on defendant’s well-being and that ultimately the contraband had then come into the plain view of the officers, justifying their seizure of the drugs and arrest of defendant for the narcotics violations.

On appeal, the Fourth Circuit concluded that, in fact, the officers did not have probable cause to arrest defendant for operating a vehicle on a suspended license because defendant “was merely sitting in a car with the headlights and motor turned off .... the car had two flat tires, which suggests that the car had been parked there for some time .... and [the officers] failed to check to see if the hood was warm which would have suggested that the motor had been running.” Kelley, 05-0332 at 3-4, 909 So.2d at 1020-21. The court of appeal further found that the officers had no other justification for ordering defendant out of the vehicle, thereby exposing the contraband on the front seat to their view, because they had no reason to suspect that defendant was armed or otherwise posed a threat to their safety. Id. The court of appeal concluded that because the officers had arrested defendant without probable cause, the arrest was illegal and tainted the subsequent seizure of the drug packets on the front seat, as the evidence came |4into view only after the officers ordered defendant from the car to place him in custody. Id.

Dissenting from the panel opinion, Judge Cannizzaro observed that “[ejven if probable cause for the arrest on the charge of driving with a suspended license did not exist,” the officers nevertheless acted reasonably in approaching the vehicle to check on the defendant and that “[t]he lack of an explanation regarding Mr. Kell[e]y’s presence in a vehicle that was not his could clearly give rise to a reasonable suspicion that Mr. Kell[e]y was in possession of a vehicle without the proper authority, particularly when he had a key in the ignition.” Kelley, 05-0332 at 2, 909 So.2d at 1022 (Cannizzaro, J., dissenting). Because the officers had reasonable suspicion to detain defendant by ordering him from the car as a matter of their own safety, Judge Cannizzaro further reasoned that “once Mr. Kell[e]y exited the vehicle, the police officers had the right to seize any evidence that was in plain sight without the necessity of a search warrant.” Kelley, 05-0332 at 4, 909 So.2d at 1022 (Cannizzaro, J., dissenting).

For present purposes, we assume, arguendo, as did Judge Cannizzaro, that Officer Garrison lacked probable cause to arrest defendant on the apparent traffic violation because the circumstances known to the officer would not have justified a man of ordinary caution in believing that defendant had committed a crime. Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964); State v. Scales, 93-2003, p. 6 (La.5/22/95), 655 So.2d 1326, 1331; State v. Marks, 337 So.2d 1177, 1181 (La.1976). Nevertheless, “[t]he touchstone of [the] analysis under the Fourth Amendment is always ‘the reasonableness in all circumstances of the particular governmental invasion of a citizen’s personal security.’ ” Pennsylvania v. Mimms, 434 U.S. 106, 108-09, 98 S.Ct. 330, 332, 54 L.Ed.2d 331 (1977)(quoting Terry v. Ohio, 392 U.S. 1, 19, 88 S.Ct. 1868, 1878-79, 20 L.Ed.2d 889 (1968)). For purposes of the Fourth Amendment, the reasonableness of any intrusion on an individual’s privacy interests “depends ‘on a balance between the public interest and the individual’s right to personal security free from arbitrary interference by law officers.’ ” Mimms, 434 U.S. at 109, 98 S.Ct. at 332 (quoting United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 2579, 45 L.Ed.2d 607 (1975)). The inquiry is a purely objective one that does not take into account the subjective intent or beliefs of the police. Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996); State v. Wilkens, 364 So.2d 934, 937 (La.1978). Thus, as Judge Cannizzaro reasoned, the determinative question in the present case is not whether the police were right or wrong in claiming that they had probable cause to arrest defendant for driving under suspension when they ordered him from the vehicle and thereby brought the drug packets on the front seat into view, but whether their conduct up to that point was objectively reasonable under the Fourth Amendment.

We find that the officers’ conduct conformed to that objective standard. The officers did not need either reasonable suspicion for an investigatory stop or probable cause for an arrest to act on the initial complaint, approach the defendant, inquire why he was in the vehicle parked at the side of the road and whether he needed medical assistance, and then to ask for some identification. State v. Fisher, 97-1133, pp. 4-5 (La.9/9/98), 720 So.2d 1179, 1183 (“[M]ere communications between officers and citizens implicate no Fourth Amendment concerns where there is no coercion or detention.”) (citations omitted). See also State v. Lewis, 00-3136, p. 3 (La.4/26/02), 815 So.2d 818, 820 (“An officer’s request for identification does not turn the encounter into a forcible detention unless the | ¿request is accompanied by an unmistakable show of official authority indicating to the person that he or she is not free to leave.”) (citations omitted); State v. McDaniels, 01-0305, p. 1 (La.12/7/01), 803 So.2d 966, 967 (same); State v. Neyrey, 383 So.2d 1222, 1224 (La.l979)(“Police officers do not need probable cause to arrest, or reasonable cause to detain, in order to converse with citizens.... Under the circumstances of this case we do not think it was unreasonable for the officers to open the [car] door and shake the defendant awake so that they could talk to him”).

The routine computer check run by Officer Garrison was reasonable and hardly more intrusive than the initial request for identification. United States v. Holt, 264 F.3d 1215, 1221 (10th Cir.2001). That background check led to information that defendant’s license was suspended and that the vehicle did not belong to him. In that context, defendant’s statement that he was “just there,” although he could not recall how he arrived at that location, at the wheel of a vehicle registered to someone else, with out-of-state plates and two flat tires but with the keys in the ignition, provided the requisite “minimal objective basis” for the officers to “maintain the status quo momentarily while obtaining more information,” the hallmark of a Terry stop. State v. Fauria, 393 So.2d 688, 690 (La.1981).

Given an objective basis for detaining the defendant briefly to determine why he was “just there,” the officers acted reasonably by requesting that he step from the car, even in the absence of any particularized suspicion that he was armed and dangerous. Mimms, 434 U.S. at 111, 98 S.Ct. at 333 (“The police have already lawfully decided that the driver shall be briefly detained; the only question is whether he shall spend that period sitting in the driver’s seat of his car or |7standing alongside it.... What is at most a mere inconvenience cannot prevail when balanced against legitimate concerns for the officer’s safety.”). The officers then acquired probable cause to enter the vehicle after they observed the drug packets on the iront seat and the exigencies of the situation excused the need for a warrant. Although the officers had clearly conveyed to defendant their subjective intent to arrest him on the traffic charge when they ordered him to step from the car, and had seized him for purposes of the Fourth Amendment when he complied, California v. Hodari D., 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991), they had not yet subjected him to any greater degree of restraint than the circumstances otherwise justified, i.e., they had not yet placed him in handcuffs and confined him in their patrol car before transporting him to the station house, see State v. Fisher, 97-1133, pp. 6-7 (La.9/9/98), 720 So.2d 1179, 1183-84 (handcuffing and transporting a civilian in a patrol unit from the streets to station house the unmistakable signature of an arrest), when they observed the contraband in open view on the front seat of the car, thereby acquiring probable cause to arrest him on the far more serious felony narcotics charges. Although the vehicle had two flat tires, it could still be driven away. See United States v. Alcorn, 329 F.3d 759, 761 (10th Cir.2003) (“[Alcorn] got into his truck, which by now had two flat tires, drove around additional barricades, got stuck again, but finally freed his truck and proceeded [through the intersection] .... passing several houses ... [until he] eventually stopped and parked his car[.]”); United States v. Clemons, 201 F.Supp.2d 142, 143 (D.D.C.2002)(“When [the officer] arrived at the corner ... he saw a black Monte Carlo with two flat tires driving in his direction. He made a U-turn, turned on his flashers and pulled up behind the vehicle which then stopped, presumably because the driver saw the police cruiser behind him.”). The |sso-called automobile exception to the warrant requirement rests in part on the premise that if the officers may seize a vehicle and immobilize it for however long it takes to secure a warrant they may conduct an immediate search. Chambers v. Maroney, 399 U.S. 42, 51, 90 S.Ct. 1975, 1981, 26 L.Ed.2d 419 (1970). Thus, even assuming that the officers could not have searched the vehicle initially as an incident to a lawful arrest for operating the car on a suspended license because they lacked probable cause to arrest for that offense, cf. Thornton v. United States, 541 U.S. 615, 124 S.Ct. 2127, 158 L.Ed.2d 905 (2004) (as an incident to a lawful arrest, police may search interior of a vehicle even if recent occupant is outside the vehicle at the time of the search), their warrantless entry of the vehicle and seizure of the evidence plainly visible on the front seat remained lawful.

Accordingly, the decision of the court of appeal is reversed, and defendant’s convictions and sentences are reinstated, and defendant is restored to his active probationary status.

DECISION OF COURT OF APPEAL REVERSED; CONVICTIONS AND SENTENCES REINSTATED.

VICTORY, Justice, additionally concurring with reasons.

VICTORY, J.,

additionally concurring.

Iil agree with the per curiam. However, I write separately to make it clear that I do not agree that Officer Garrison lacked probable cause to arrest the defendant.


author: McDonald, j. PETTIGREW, J.,

text:
    ALLSTATE INSURANCE COMPANY v. Robert REID.
    No. 2004 CA 1620.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 30, 2005.
    Rehearing Denied July 17, 2006.

      David C. Forrester, Baton Rouge, Counsel for Plaintiff/Appellee Allstate Insurance Company.
    Michael A. Betts, Denham Springs, Counsel for Defendant/Appellee Robert Reid.
    Henry G. Terhoeve, Baton Rouge, Counsel for Third Party Defendant/Appellant State Farm Mutual Automobile Insurance Company.
    Before: CARTER, C.J., KUHN, PETTIGREW, MCDONALD, and McClendon, jj.
   McDonald, j.

|aIn this appeal, an insurer contests a trial court’s determination that its automobile liability policy afforded coverage for damage to a boat being transported by the insured, along with the court’s imposition of penalties and attorney fees. We reverse, but remand the case to the trial court to set a reasonable attorney fee award.

BACKGROUND

This lawsuit stems from an automobile accident occurring on May 10, 2001, on Louisiana Highway 70 in Assumption Parish. At that time, Robert Reid and his friend Kenneth May were returning home from a fishing trip. Reid was driving his Dodge Ram truck and pulling a boat and trailer owned by May. At some point, Reid lost control of the vehicle and veered off the roadway, striking a bridge rail with the boat and the boat trailer, causing damage to both.

Allstate Insurance Company, which issued a policy to May insuring the boat and boat trailer, tendered $7,324.74 to May for damage to the trailer and boat as a result of the accident, and released the boat to May. Thereafter, on March 13, 2002, Allstate filed this lawsuit against Reid, asserting a subrogation claim seeking to recover the amount it paid to May for the boat damage.

In turn, Reid filed a third party demand against State Farm Mutual Automobile Insurance Company, which provided liability insurance on his truck. State Farm denied coverage under the policy and also refused to provide Reid with a defense on the Allstate claim. Averring that State Farm’s refusal to honor the claim or provide him with a defense was arbitrary and capricious, Reid sought to recover penalties, attorney fees and costs associated with the Allstate litigation.

| sState Farm filed a motion for summary judgment, asserting that the only coverage available under its policy was a $500.00 limit for damage to a non-owned trailer under the collision portion of the policy. It is undisputed that State Farm paid Allstate $500.00 for the trailer damage. State Farm urged that the policy specifically excluded coverage for damage to property being transported by the insured, and therefore argued that because it had paid the policy limits on the trailer damage claim to Allstate, it had no remaining liability to Reid.

Initially, the trial court granted State Farm’s motion for summary judgment only as to Reid’s claims for mental and emotional anguish, but denied the motion as to the property damage claim. State Farm sought supervisory writs before this court, which were denied. Allstate Insurance Company v. Reid, 2003-1008 (La. App. 1st Cir.8/11/03).

Thereafter, following a trial, the court ruled that Reid and- May were each fifty percent at fault in causing the boat damage. The court ordered Reid and State Farm to pay one-half of May’s boat damage and entered judgment against the two in the amount of $3,912.37. The trial court found that State Farm was arbitrary and capricious in failing to provide Reid with a defense in light of its earlier denial of State Farm’s motion for summary judgment on the coverage issue, followed by this court’s denial of State Farm’s writ application raising the coverage issue. The trial court assessed a $1,000.00 penalty against State Farm and ordered it to pay Reid $10,066.90 in attorney fees.

State Farm appealed, contending that the trial court erred in finding coverage under the State Farm policy for damage to the boat and trailer, in granting judgment in favor of Allstate when it did not sue State Farm, and also, in assessing penalties and attorney fees.

I INSURANCE COVERAGE

We first address the trial court’s determination that the State Farm policy afforded coverage for the damage to a boat that was transported by State Farm’s insured. An insurance policy is an agreement between the parties and should be interpreted using ordinary contract principles. Reynolds v. Select Properties, Ltd., 93-1480 (La.4/11/94), 634 So.2d 1180, 1183. In interpreting contracts, the role of the judiciary is to ascertain the common intent of the parties. Cadwallader v. Allstate Ins. Co., 2002-1637, p. 3 (La.6/27/03), 848 So.2d 577, 580. If the language in an insurance contract is clear, unambiguous, and expressive of the intent of the parties, the agreement must be enforced as written. Reynolds, 634 So.2d at 1183.

Ambiguous policy provisions are generally construed against the insurer and in favor of coverage. Under this rule of strict construction, equivocal provisions seeking to narrow an insurer’s obligation are strictly construed against the insurer. Cadwallader, 2002-1637 at p. 4, 848 So.2d at 580. For the rule of strict construction to apply, an insurance policy must not only be susceptible to two or more interpretations, but each of the alternative interpretations must be reasonable. Id.

It is equally well settled, however, that subject to the above rules of interpretation, insurance companies have a right to limit coverage in any manner they so desire, provided the policy limitations do not conflict with statutory provisions or public policy. Reynolds, 634 So.2d at 1183. The insurer has the burden of showing that a loss falls within a policy exclusion. Classert v. Butler, 98-1991, p. 9 (La.App. 1st Cir.11/5/99), 746 So.2d 787, 792.

|fiWith these precepts in mind, we turn to the pertinent language of the State Farm policy. The liability portion of the policy, set forth in Coverage A, obligates State Farm to pay damages that an insured becomes legally liable to pay because of “damage to or destruction of property including loss of its use” resulting from an accident caused by the use of the insured’s vehicle. The policy contains two separate sections providing for trailer coverage. The first, found under the liability portion of the policy, provides that trailers designed to be pulled by a private passenger car or utility vehicle, with some exceptions as to the type of trailer, are covered “while owned or used by an insured.” The policy contains the following exclusion from liability coverage:

When Coverage A Does Not Apply
In addition to the limitations of coverage in Who is an Insured and Trailer Coverage:
THERE IS NO COVERAGE:
4. FOR ANY DAMAGES TO PROPERTY OWNED BY, RENTED TO, IN THE CHARGE OF OR TRANSPORTED BY AN INSURED.

The second trailer provision is found in the policy’s comprehensive/collision coverage, and provides as follows:

Trailer Coverage

2. Non-Owned trailer or Detachable Living Quarters

Any physical damage coverage in force on your car applies to a non-owned: a. trailer, if it is designed for use with a private passenger car... used by the first person named in the declarations, his or her spouse or their relatives.
The most we will pay under the comprehensive or collision coverage for a loss to such non-owned trailer or unit is $500.00.
(Emphasis in original)

| fiState Farm contends that its exclusion from liability coverage for any damage to property “transported by an insured” plainly excludes coverage for the damage to May’s boat in this case. Allstate and Reid, however, submit that the exclusionary language is ambiguous, positing that while the first two exclusions for property “owned by” or “rented to” the insured are perfectly clear, the provisions that exclude property “in the care of’ or “transported by” the insured are not, as they could be interpreted in different ways. Allstate points out that the policy specifically provides coverage for a non-owned trailer pulled by the State Farm insured, and under that coverage, there is no specific exclusion of the contents within the trailer from coverage. Thus, it submits, even if the boat is not covered under the general liability provision, it would be covered under the second trailer provision. In any event, Allstate posits, reason and probability suggest that if the boat trailer were covered, then the boat belonging on the trailer should be covered by the liability insurance contract.

In a case relied on by State Farm, under nearly identical circumstances, a Louisiana appellate court held that a State Farm policy did not provide coverage for damage to a boat being transported by its insured. In State Farm Fire & Cas. Ins. Co. v. Delatte, 2001-1001 (La.App. 5th Cir.12/26/01), 806 So.2d 806, the State Farm policy provided liability coverage for the use of a trailer with a private passenger automobile. However, the policy specifically excluded from liability coverage “injury or destruction of property (1) owned or transported by the insured.” State Farm’s insured was pulling a boat and trailer owned by another when he was involved in an automobile accident. The insured insisted that State Farm was liable for the boat damage, urging that the exclusion for damage to property transported by the insured could not be |7reconciled with the clear language of the policy extending coverage for property damage caused by the use of a trailer by the insured vehicle.

The court disagreed, finding no conflict between the policy’s liability coverage for the use of a trailer pulled by the insured vehicle and its exclusion from coverage for damages to property being transported by the insured. In so doing, the court observed:

Thus, if Delatte had injured another person by striking them or their property with the boat trailer at the time of the accident, the policy would provide liability coverage to him, although the injuries were caused by the trailer rather than by the insured vehicle. However, at issue in this case is not damages caused by the trailer, but rather damages to property being transported by Delatte, namely, the boat. Regardless whether the damage was caused by the operation of the vehicle or by the operation of the boat trailer, the only element of damages for which the insured seeks coverage is damage to a boat he was transporting. The exclusion is unambiguous and it does not conflict with the coverage provision regarding trailers.

State Farm v. Delatte, 2001-1001 at pp. 6-7, 806 So.2d at 809.

We agree with State Farm’s position. The policy’s liability coverage for trailers and its $500.00 limitation under the collision/comprehensive portion of the policy for damage to a non-owned trailer does not render the exclusionary language ambiguous. Rather, the policy’s general liability coverage provision is subject to the exclusionary language in the policy, specifically, that provision denying coverage for damages to the property of others being transported by the insured. The policy plainly excludes damage to the boat, which was being transported by Reid, and denies coverage for any damage to the non-owned trailer beyond the $500.00 limit, which has already been tendered by State Farm to Allstate. Thus, as written, there is no coverage under the State Farm policy for the damage to May’s boat. See also Bergquist v. Fernandez, 585 So.2d 827 (La. App. 2nd Cir.1988) (upholding a business automobile policy’s exclusion from coverage for damage to property transported by the insured |awhere an employee of the insured horse transport company was involved in an accident resulting in injury to the horses being transported).

Next, we address Reid and Allstate’s argument that the exclusion in State Farm’s policy from liability coverage for property being transported by the insured violates the Motor Vehicle Safety Responsibility Law, La. R.S. 32:851-1043, which sets forth a mandatory, comprehensive scheme designed to protect the public from damage caused by motor vehicles. La. R.S. 32:900 B(2) provides that a vehicle owner’s policy of liability insurance “[sjhall insure the person named therein... against loss from the liability imposed by law for damages arising out of the ownership, maintenance, or use of such motor vehicle .... ” The law stipulates that the policy must provide coverage in the amount of “[t]en thousand dollars because of bodily injury to or destruction of property of others in any one accident.” La. R.S. 32:900 B(2)(c). Reid stresses that law does not distinguish between types of property to be included or excluded, but mandates coverage for the destruction of property of others. He submits that the accident in question is precisely what the legislature intended mandatory insurance to cover against, as there was: (1) a loss sustained by May; (2) liability imposed by law (negligence); (3) the negligence caused the damages; and (4) the liability and damages arose directly from Reid’s use of the insured vehicle.

State Farm, however, contends that its exclusion for damage to property being transported by the insured is authorized by the compulsory insurance law. Specifically, La. R.S. 32:900 E states:

Such motor vehicle liability policy need not insure any liability under any worker’s compensation law nor any liability on account of bodily injury to or death of an employee of the insured while engaged in the employment, other than domestic, of the insured, or while engaged in the operation, maintenance or repair of |9any such motor vehicle nor any liability for damage to property owned by, rented to, in charge of or transported by the insured.
(Emphasis in original)

The parties dispute the proper reading of the exclusion. State Farm’s position is that La. R.S. 32:900 E contains a number of exclusions, one of which is for property owned by, rented to, in the charge of or transported by the insured. Reid submits, however, that it is not logical to read Subsection E as providing a listing of exclusions. Rather, he argues, by breaking Subsection E into its sub-parts, the provision only makes sense if it is read as a subsection allowing exclusions related only to Workers’ Compensation. He insists that when read in its proper context, it is evident that Subsection E is entirely devoted to allowing insurers to exclude coverage for situations that are covered under the Louisiana Workers’ Compensation statute and commercial liability policies.

Under the general rules of statutory construction, we begin with the premise that legislation is the solemn expression of the legislative will. La. Civ.Code art. 2. Therefore, interpretation of a law involves, primarily, the search for the legislature’s intent. Certified Capital Corporation v. Reis, 2003-2525 (La.App. 1st Cir.10/29/04), 897 So.2d 128, 130, writ denied, 2004-2876 (La.1/28/05), 893 So.2d 79. When a law is clear and unambiguous, and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature. La. Civ.Code art. 9.

Construing Subsection E alone and in context of the other provisions of La. R.S. 32:900, it is obvious that the legislature intended it to be a listing of permissible exemptions from the mandatory insurance law. This reading is |1(1dictated by the legislature’s use of the word “nor” to separate the three situations for which liability coverage is not mandated. Properly read, Subsection E provides that the policy need not insure: (1) any liability under any workers’ compensation law; (2) any liability on account of bodily injury to or death of an employee of the insured while engaged in the employment, other than domestic of the insured, or while engaged in the operation, maintenance or repair of any such motor vehicle, and (3) any liability for damage to property owned by, rented to, in charge of or transported by the insured. Thus, the compulsory insurance law provides that liability for property transported by the insured may be excluded from coverage under a liability insurance policy, and as the State Farm policy tracks the language found in La. R.S. 32:900 E’s exception, State Farm’s coverage limitation is a valid one. Accordingly, we find the trial court erred in finding coverage under the State Farm policy in this case, and we reverse that portion of the judgment awarding the sum of $3,912.37 for the damage to May’s boat.

Because State Farm’s policy does not provide coverage on the property damage claim, State Farm cannot be held liable for statutory penalties and attorney fees under La. R.S. 22:658. State Farm’s success in this court on the coverage issue, however, does not end our inquiry. The State Farm policy imposes a duty on State Farm to defend Reid in a suit for damages resulting from the operation of his insured vehicle. State Farm can be held liable for attorney fees if it breached its obligation to defend Reid on the Allstate claim.

hiAn insurer’s obligation to defend suits against its insured is broader than its liability for damages, and thus, where it breaches that duty, it can be held liable for attorney fees regardless of the outcome of the lawsuit. Vaughn v. Franklin, 2000-0291, pp. 4-5 (La.App. 1st Cir.3/28/01), 785 So.2d 79, 83, writ denied, 2001-1551 (La.10/5/01), 798 So.2d 969. The insurer’s obligation to defend is determined by the allegations of the plaintiffs petition. The insurer must defend the insured unless the petition unambiguously excludes coverage. The duty to defend arises whenever the pleadings against the insured disclose even a possibility of liability under the policy. Prestenbach v. Badeaux, 2003-809, p. 3 (La.App. 5th Cir.12/30/03), 865 So.2d 180, 181-82. The allegations of Allstate’s petition disclosed at least the possibility of liability under the policy, and State Farm should have provided Reid with an attorney on the coverage issue.

However, we agree with State Farm’s argument that the trial court’s attorney fee award is not reasonably supported by the record. The evidence on this issue was presented during the trial through the testimony of the client. Reid identified a document as a bill he received from his attorney. The bill outlined charges in the amount of $10,066.90, and the trial court awarded that sum to Reid in attorney fees. However, because Reid did not prepare the bill, he could not testify as to the accuracy of the charges contained therein, and thus, there was no competent testimony relating the individual charges to the instant litigation. Furthermore, there is no indication the trial court made a determination as to the reasonableness of the charged fee. Under these circumstances, we reverse the attorney fee award and remand the case, in the interest of justice, to hold a hearing and set a reasonable attorney fee award.

Lastly, we note that in his brief, Reid requested additional attorney fees for work performed by his attorney in connection with this appeal to determine the coverage issue. However, Reid failed to request the increase in accordance with the proper appellate procedure. Louisiana Code Civil Procedure article 2133 requires an appellee to answer an appeal whenever he demands damages against the appellant. Reid did not file an answer to this appeal. And while he raised the issue in the brief, the brief was not filed within 15 days of the return day or lodging of the record as is mandated by article 2133, and therefore, the request is untimely. Accordingly, Reid is not entitled to an increase in attorney fees for defending this appeal. See Hallaron v. Jacob’s Engineering Group, Inc., 2004-876, p. 2 (La.App. 5th Cir.1/25/05), 893 So.2d 127, 133.

CONCLUSION

For the above reasons, the judgment appealed from is reversed, and the case is remanded to the trial court to set a reasonable attorney fee. All costs of this appeal are assessed to appellee, Robert Reid.

REVERSED AND REMANDED.

KUHN, J., dissents.

PETTIGREW, J., dissents and assigns reasons.

PETTIGREW, J.,

dissenting.

hi respectfully dissent from the majority, because I am of the humble opinion that La. R.S. 32:900 E only allows insurers to exclude coverage for situations covered under the Louisiana Workers’ Compensation statutes and commercial liability policies. I would affirm the trial court.

      . We note that in the case of State Farm Fire and Cas. Ins. Co. v. Delatte, 2001-1001 (La. App. 5th Cir. 12/26/01), 806 So.2d 806, the fifth circuit ruled that an exclusion in a liability policy for damage to property transported by the insured was not precluded by the compulsory insurance law on a different basis.

      . This ruling renders moot the issue raised in State Farm’s brief in assignment of error number two regarding the propriety of the monetary judgment rendered against it in favor of Allstate despite the fact that Allstate never filed a claim in the litigation against State Farm.


author: PER CURIAM.

text:
    Anthony CROOKS v. LCS CORRECTIONS SERVICES, INC., et al. John Spellman, et al. v. LCS Corrections Services, Inc., et al.
    No. 2006 CW 0003.
    Court of Appeal of Louisiana, First Circuit.
    March 6, 2006.

      Before: KUHN, GUIDRY and PETTIGREW, JJ.
   PER CURIAM.

| ,This litigation arises out of a train derailment and subsequent chemical release which occurred near Basile, Louisiana in May, 2000. Anthony Crooks, an inmate at the South Louisiana Corrections Center at Basile, filed a Class Action Petition for Damages in August, 2000. In his petition, Crooks alleged that he and others similarly situated suffered physical, mental and economic damages because they were forced by defendant Louisiana Corrections Service, Inc. (LCS) to shelter in place during the aftermath of the accident, resulting in their exposure to hazardous chemicals.

Crooks failed to file a motion for certification within ninety days of service as required by Louisiana Code of Civil Procedure article 592 A(l). In response to this omission, defendant Union Pacific Railroad Company filed a Motion to Strike Class Action Demand and LCS filed a Motion to Strike Class Action. In a March, 2001 judgment, the district court granted defendants’ motions, dismissed Crooks’ class action demand, and designated the judgment as immediately appealable pursuant to Louisiana Code of Civil Procedure article 1915; the judgment noted that Crooks did not oppose the motions and that all parties waived a hearing thereon. Crooks did not appeal the March, 2001 judgment, but rather filed an amending petition listing nearly five hundred people as individual plaintiffs.

In May, 2001, John Spellman, another inmate at the corrections facility, filed a Class Petition for Damages raising allegations substantially similar to those presented in Crooks’ original petition. Thereafter, the district court consolidated the Crooks and Spellman actions upon defendants’ motion.

In May, 2005, LCS filed a peremptory exception of res judicata and motion to strike class action. The exception and motion were denied in December, 2005 and this writ application ensued.

| ^Louisiana Revised Statutes 13:4231(3) provides that a judgment in favor of either the plaintiff or the defendant is conclusive, in any subsequent action between them, with respect to any issue actually litigated and determined if its determination was essential to that judgment. In order for a judgment to bar subsequent litigation, it must be a final judgment that disposes of the merits in whole or in part. See La. R.S. 13:4231 comment (d). The judgment of March, 2001, upon which relator relies in its exception of res judicata, responded to Crooks’ failure to timely move for class certification. It is clear from the record before us that the merits of whether or not class certification was appropriate in that matter were never litigated. Accordingly, the March, 2001 judgment, although designated as final for purposes of immediate appeal, was not a judgment which would support relator’s exception of res judicata.

Under the circumstances presented here, we find no error in the district court’s denial of relator’s exception of res judicata and motion to strike class action. Accordingly, the application hereby is denied.

WRIT DENIED.


author: GAIDRY, J.

text:
    Lucille JOHNSON, Sam Baker, Beatrice S. Drummond, Vyrom White, Juanita F. Whitley, and Joyce S. Veal v. MOUNT PILGRIM BAPTIST CHURCH, Rev. Dr. Irvin Briley, Jr., Ophelia Johnson, Mary Holloway, Letitia Briley Polar and Cynthia Robins.
    No. 2005 CA 0337.
    Court of Appeal of Louisiana, First Circuit.
    March 24, 2006.
    Walter C. Dumas, Baton Rouge, Counsel for Plaintiffs/Appellants Lucille Johnson, Sam Baker, Leatrice S. Drummond, Vyron White, Juanita F. Whitley and Joyce S. Veal.
    Winston G. DeCuir, Sr., Winston G. De-Cuir, Jr., Brandon J. DeCuir, Baton Rouge, Counsel for Defendants/Appellees Mount Pilgrim Baptist Church, Rev. Dr. Irvin Briley, Jr., Ophelia Johnson, Mary Holloway, Letitia Briley Polar, and Cynthia Robins.
    Before: CARTER, C.J., DOWNING and GAIDRY, JJ.
   GAIDRY, J.

l;;This is an appeal from a trial court judgment sustaining the defendants’ exception of no cause of action. For the following reasons, we remand this matter to the lower court for further proceedings.

DISCUSSION

Lucille Johnson, Sam Baker, Lea-trice S. Drummond, Vyron WZhite, Juanita F. Whitley, Dianne Cushenberry, and Joyce S. Veal, (collectively “Plaintiffs”) filed suit in December 2004 against Mount Pilgrim Baptist Church, Reverend Dr. Irvin Briley, Jr., Ophelia Johnson, Mary Holloway, Letitia Briley Polar, and Cynthia Robins, (collectively “Defendants”), to prevent the merger of Mount Pilgrim Baptist Church with Mount Calvary Baptist Church and the creation of First Pilgrim Calvary Missionary Baptist Church. Plaintiffs’ petition sought injunctive relief and declaratory judgment, as well as other relief. Defendants filed an exception of no cause of action, which was sustained by the trial court after a hearing. In sustaining the exception, the trial court stated that he was dismissing plaintiffs’ claims. However, the judgment signed by the trial court on January 31, 2005 simply states:

The Court, after considering the exceptions, evidence and supporting memorandum filed by both parties,
IT IS ORDERED, ADJUDGED, AND DECREED that the Defendants’ Exception of No Cause of Action is granted for the reasons provided orally in open court this day.

This judgment, prepared by the plaintiffs’ attorney and approved as to content and form by the defendants’ attorney, does not dismiss plaintiffs’ claims. This court’s appellate jurisdiction extends to “final judgments.” La. C.C.P. art.2083; Van ex rel. White v. Davis, 00-0206 (La.App. 1 Cir.2/16/01), 808 So.2d 478, 483. A judgment must be precise, definite, and certain. Vanderbrook v. Coachmen Industries, Inc., 01-0809 (La.App. 1 Cir. 5/10/02), 818 So.2d 906. A final appealable judgment must contain decretal language, and it must name the party in favor of whom the ruling is ordered, the party against whom the ruling is ordered, and the relief that is granted or denied. See Carter v. Williamson Eye Center, 01-2016 (La.App. 1 Cir. 11/27/02), 837 So.2d 43. Because the January 31, 2005 judgment is defective in that it does not contain decre-tal language, we cannot consider it as a final judgment for the purpose of an immediate appeal. La. C.C.P. art. 1915(B). This court lacks jurisdiction to review this judgment; therefore, we remand this matter to the lower court for further proceedings. Carter v. Williamson Eye Center, 01-2016, p. 3 (La.App. 1 Cir. 11/27/02), 837 So.2d 43, 44. Costs of this appeal are to be shared equally by the parties.

REMANDED.

DOWNING, J„ concurs.


text:
    Raymond ROCHON v. ADMINISTRATIVE REMEDY PROCEDURE, State of Louisiana, Dora Rabalais, Burl Cain, Richard Stalder, Individually and Officially.
    No. 2005 CA 0452.
    Court of Appeal of Louisiana, First Circuit.
    March 24, 2006.
    Raymond Rochon, Angola, Plaintiff/Appellant In Proper Person.

      William L. Kline, Baton Rouge, Counsel for Defendant/Appellee Administrative Remedy Procedure, et al.
    Before: CARTER, C.J., DOWNING, and GAIDRY, JJ.
   GAIDRY, J.

|2This is an appeal from a judgment dismissing a prisoner’s petition for judicial review without prejudice for failure to exhaust administrative remedies. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Raymond Rochon, a prisoner in the custody of the Louisiana Department of Public Safety and Corrections, filed a petition for judicial review in accordance with La. R.S. 15:1177 on April 16, 2003, requesting that the court declare the Corrections Administrative Remedy Procedure (“CARP”), La. R.S. 15:1171-1179, unconstitutional. Rochon claims that he has filed several administrative remedy requests which have been placed on backlog for an unacceptable period of time, in violation of his constitutional rights. Rochon states that he did not pursue an administrative remedy before filing his petition because neither the “prison official nor the Administrative Remedy Procedure (ARP) can declare the ARP unconstitutional.” Rochon also cited Pope v. State of Louisiana, 99-2559 (La.6/29/01), 792 So.2d 713, and asserted that his suit is one in tort to which the CARP does not apply.

In screening the petition in accordance with La. R.S. 15:1178 and 15:1184-88, the Commissioner recommended that the court dismiss Rochon’s petition for lack of subject matter jurisdiction because Rochon failed to provide proof that he had exhausted his administrative remedies as required by the CARP. The district court dismissed Rochon’s petition without prejudice and without service on the defendants, and Rochon filed the instant appeal.

^DISCUSSION

Although the supreme court in Pope, 99-2559 at p. 13, 792 So.2d at 721, did declare the CARP unconstitutional to the extent it allowed the Department of Corrections to exercise original jurisdiction over tort actions, Rochon’s suit is not, as he claims, one in tort. His complaint about the Department of Corrections’ handling of his requests for administrative remedies is a complaint regarding a condition of his confinement, which falls under the CARP. As such, Rochon is required to exhaust his administrative remedies prior to filing a petition in district court. Since Rochon failed to exhaust his administrative remedies, the trial court was correct in dismissing his petition for lack of subject matter jurisdiction. Once Rochon exhausts his administrative remedies, he may file a petition for judicial review and may then assert his claims that the CARP is unconstitutional.

DECREE

For the above reasons, the judgment of the trial court dismissing Rochon’s petition for judicial review without prejudice and without service on defendants is affirmed. Costs of this appeal are assessed to appellant, Raymond Rochon.

AFFIRMED.

      . The office of the Commissioner of the Nineteenth Judicial District Court was created by LSA-R.S. 13:711 to hear and recommend disposition of criminal and civil proceedings arising out of the incarceration of state prisoners. The Commissioner's written findings and recommendations are submitted to a district judge, who may accept, reject, or modify them. La. R.S. 13:713(C)(5).

      . Although Rochon filed his petition for judicial review in forma pauperis, because he is unsuccessful in obtaining the relief sought, costs may be assessed against him. See Gibson v. Barnes, 597 So.2d 176, 178 (La.App. 1st Cir. 1992) (assessing costs of unsuccessful appeal against unsuccessful appellant).