text:
    In re ALLIED SIGNAL SOUTHWORKS RELEASE.
    No. 2006-CC-0871.
    Supreme Court of Louisiana.
    May 5, 2006.
   In re Grodner, Donna; Grodner & Associates; — Other(s); Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. N, Nos. 458,568, 458,625, 466,963, 469,967, 469,976, 470,084; to the Court of Appeal, First Circuit, No. 2006 CW 0365.

Denied.

VICTORY, J., would grant.


source: Caselaw Access Project

license: Public Domain

text:
    William N. COX v. AMERICAN CASUALTY COMPANY OF READING, PENNSYLVANIA, et al.
    No. 2006-CC-0875.
    Supreme Court of Louisiana.
    May 5, 2006.
   In re Progressive Security Ins. Co.;— Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Calca-sieu, 14th Judicial District Court Div. E, No. 2004-5358-F; to the Court of Appeal, Third Circuit, No. CW 06-00016.

Denied.

VICTORY, J., would grant.


text:
    STATE ex rel. Robert SKIPPER v. STATE of Louisiana.
    No. 2006-KH-0010.
    Supreme Court of Louisiana.
    May 5, 2006.
   In re Skipper, Robert; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Madison, 6th Judicial District Court Div. B, No. 19-644.

Relator represents that the district court has failed to act timely on a motion to correct an.illegal sentence filed on or about April 24, 2005. If relator’s representation is correct, the district court is ordered to consider and act on the motion. If relator’s representation is incorrect, the district court is ordered to accept, file and act upon the pleading which is herewith transferred to the district court. The district court is ordered to provide this Court with a copy of its judgment.


text:
    Philip M. BAPTISTE, et al. v. Langdon H. STONE, Jr., et al.
    No. 2006-CC-0452.
    Supreme Court of Louisiana.
    May 5, 2006.
   In re Stone, Langdon H. Jr. et al.; Stone Insurance Inc.; — Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. D, No. 2005-04658; to the Court of Appeal, Fourth Circuit, No. 05-C-1509.

Granted. The case is remanded to the court of appeal, which is instructed to allow relators to supplement their application with the appropriate documentation and to consider the application, as supplemented, on the merits.


text:
    Godiva HAWKINS-ROBERTSON, Steven Hawkins, Sr., and Joell Jackson on Behalf of Her Minor Child Kevin Jackson, and the Succession of Steven Hawkins, Jr. v. Eric HESSLER and the New Orleans Police Department.
    No. 2006-CC-0563.
    Supreme Court of Louisiana.
    May 5, 2006.
   In re Hessler, Eric et al.; Police, New Orleans Department of; — Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. F, No. 2000-04393; to the Court of Appeal, Fourth Circuit, No. 2006-C-0004.

Granted. The matter is remanded to the court of appeal for briefing, argument and opinion.

JOHNSON, J., would deny the writ.


text:
    STATE ex rel. Tyrone SCHEXNAYDER v. STATE of Louisiana.
    No. 2006-KH-0756.
    Supreme Court of Louisiana.
    May 5, 2006.
   In re Schexnayder, Tyrone; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. J, No. 251-459.

Relator represents that the district court has failed to act timely on a motion for Boykin and sentencing transcripts filed in October of 2005. If relator’s representation is correct, the district court is ordered to consider and act on the motion. The district court is ordered to provide this Court with a copy of its judgment.


text:
    Sandra ROCKFORTE v. STATE FARM FIRE AND CASUALTY COMPANY, Ronnie L. Rockforte, Darrell M. Rockforte and Shirley Rockforte Prejean.
    No. 2006-CC-0497.
    Supreme Court of Louisiana.
    May 5, 2006.
   In re Rockforte, Sandra; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Iberville, 18th Judicial District Court Div. B, No. 62,183; to the Court of Appeal, First Circuit, No. 05 CW 2134.

Denied.

CALOGERO, C.J., would grant.

JOHNSON, J., would grant.


text:
    Sandra ROCKFORTE v. STATE FARM FIRE AND CASUALTY COMPANY, Ronnie L. Rockforte, Darrell M. Rockforte and Shirley Rockforte Prejean.
    No. 2006-CC-0498.
    Supreme Court of Louisiana.
    May 5, 2006.
   In re Rockforte, Sandra; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Iberville, 18th Judicial District Court Div. B, No. 62,183; to the Court of Appeal, First Circuit, No. 05 CW 2127.

Denied.

CALOGERO, C.J., would grant.

JOHNSON, J., would grant.


text:
    Dr. Anjani NARRA, M.D. v. CAPITAL AREA HUMAN SERVICES DISTRICT.
    No. 2006-C-0502.
    Supreme Court of Louisiana.
    May 5, 2006.
   In re Narra, Anjani M.D.; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. N, No. 495,727; to the Court of Appeal, First Circuit, No. 2005 CA 00Í3.

Denied.


text:
    Randy TRAHAN v. TELEFLEX INC., Teleflex Morse, Inc., Allen Joseph Trahan, Marshland Marine, Inc., CNA Insurance Company, and State Farm Fire and Casualty Insurance Company.
    No. 2006-C-0503.
    Supreme Court of Louisiana.
    May 5, 2006.
   In re Teleflex Inc. et ah; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Calcasieu, 14th Judicial District Court Div. A, No. 2003-3183; to the Court of Appeal, Third Circuit, No. 05-943.

Denied.

VICTORY, J., would grant.


text:
    Glynis Mariele WARNER v. Gilford WARNER.
    No. 2006-C-0505.
    Supreme Court of Louisiana.
    May 5, 2006.
   In re Warner, Gilford; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Calcasieu, 14th Judicial District Court Div. I, No. 2001-4149; to the Court of Appeal, Third Circuit, No. 05-828.

Denied.


text:
    STATE of Louisiana v. Lawrence JACOBS.
    No. 2006-KK-0506.
    Supreme Court of Louisiana.
    May 5, 2006.
   In re Jacobs, Lawrence; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. H, No. 96-7161; to the Court of Appeal, Fifth Circuit, No. 05-K-1015.

Denied.

KNOLL, J., recused.


text:
    Mary WILSON v. The CITY OF SHREVEPORT, Jimmy Dove, in his Capacity as City Marshall.
    No. 2006-C-0509.
    Supreme Court of Louisiana.
    May 5, 2006.
   In re Wilson, Mary; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Caddo, 1st Judicial District Court Div. C, No. 464,281-C; to the Court of Appeal, Second Circuit, No. 40,383-CA.

Denied.


text:
    David WALL v. AVOYELLES CORRECTIONAL CENTER.
    No. 2006-C-0510.
    Supreme Court of Louisiana.
    May 5, 2006.
   In re Louisiana State of Department of Justice; — Other; Applying for Writ of Cer-tiorari and/or Review Office of Worker’s Compensation District 02, No. 03-07673; to the Court of Appeal, Third Circuit, No. 05-781.

Denied.


text:
    Ryck H. SOTO v. JAZZ CASINO COMPANY LLC and Luanne Rivero.
    No. 2006-CC-0511.
    Supreme Court of Louisiana.
    May 5, 2006.
   In re Jazz Casino Company LLC; Rive-ro, Luanne; — Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. B, No. 02-9097; to the Court of Appeal, Fourth Circuit, No. 2005-C-1462.

Denied.


text:
    Louise ACOSTA v. PLAQUEMINES PARISH, the Plaquemines Council on Aging, Inc., Riverbend Senior Center and ABC Insurance Company.
    No. 2006-C-0513.
    Supreme Court of Louisiana.
    May 5, 2006.
   In re Plaquemines Parish Government; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Plaquemines, 25th Judicial District Court Div. A, No. 44-640; to the Court of Appeal, Fourth Circuit, No. 2005-CA-0610.

Denied.


text:
    Gregory J. HEBERT v. CONNER-MONCEAUX GENERAL CONTRACTORS.
    No. 2006-C-0516.
    Supreme Court of Louisiana.
    May 5, 2006.
   In re Hebert, Gregory J.; — Plaintiff; Applying for Writ of Certiorari and/or Review Office of Workers’ Compensation District 03, No. 03-05420; to the Court of Appeal, Third Circuit, No. 05-760.

Denied.


text:
    The CHARTER OAK FIRE INSURANCE COMPANY v. SHREVE LAND COMPANY, INC., et al.
    No. 2006-CC-0538.
    Supreme Court of Louisiana.
    May 5, 2006.
   In re Fire Tech Systems, Inc.; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of. Calcasieu, 14th Judicial District Court Div. E, No. 2005-645; to the Court of Appeal, Third Circuit, No. CW 05-01268.

Denied.


text:
    Tonya BOATMAN v. Doug GORMAN and State Farm Mutual Insurance Company.
    No. 2006-CC-0539.
    Supreme Court of Louisiana.
    May 5, 2006.
   In re Boatman, Tonya; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Livingston, 21st Judicial District Court Div. G, No. 98,209; to the Court of Appeal, First Circuit, No. 2005 CW 1369.

Denied.


text:
    In re Melinda MARTIN, etc. v. NOVARTIS CONSUMER HEALTH, INC., et al.
    No. 2006-CC-0555.
    Supreme Court of Louisiana.
    May 5, 2006.
   In re Novartis Consumer Health Inc. et al.; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. E, No. 99-18696; to the Court of Appeal, Fourth Circuit, No. 2005-C-582.

Denied.

VICTORY, J., would grant.


text:
    TRANSWORLD PROPERTIES, LTD. v. Donald Joe CALLOWAY.
    No. 2006-C-0572.
    Supreme Court of Louisiana.
    May 5, 2006.
   In re Calloway, Donald Joe; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. J, No. 449,867; to the Court of Appeal, First Circuit, No. 2005 CA 0510.

Denied.


text:
    Michael A. DRAPCHO v. Suzanne Parke DRAPCHO.
    No. 2006-C-0580.
    Supreme Court of Louisiana.
    May 5, 2006.
   In re Drapcho, Suzanne Parke; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. J, No. 99-11421; to the Court of Appeal, First Circuit, No. 2005 CA 0003.

Denied.


text:
    STATE of Louisiana v. LE VIDEO STORE, INC.
    No. 2006-KK-0583.
    Supreme Court of Louisiana.
    May 5, 2006.
   In re Le Video Store, Inc.; Jacob, Em-mette J. Jr.; — Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of St. Martin, 16th Judicial District Court Div. G, Nos. 228944, 228945; to the Court of Appeal, Third Circuit, No. KW 05-01594.

Denied.


text:
    RING CONSTRUCTION, LLC v. CHATEAU DES LIONS, LLC.
    No. 2006-C-0584.
    Supreme Court of Louisiana.
    May 5, 2006.
   In re Chateau Des Lions LLC; — Defendant; Applying for Writ - of Certiorari and/or Review, Parish of Lafayette, 15th Judicial District Court Div. F, No. 2003-4031; to the Court of Appeal, Third Circuit, No. 05-568.

Denied.

KIMBALL, J., recused.


text:
    Donovan MONCEAUX v. R & R CONSTRUCTION, INC.
    No. 2006-C-0585.
    Supreme Court of Louisiana.
    May 5, 2006.
   In re R & R Construction Inc.; — Defendant; Applying for Writ of Certiorari and/or Review Office of Workers’ Compensation District 3, No. 03-07918; to the Court of Appeal, Third Circuit, No. 05-533.

Denied.

TRAYLOR, J., would grant.


text:
    Calvin and Donna ABSHIRE v. LOUISIANA MEDICAL MUTUAL INSURANCE COMPANY, et al.
    No. 2006-CC-0586.
    Supreme Court of Louisiana.
    May 5, 2006.
   In re Budden, John R. M.D.; Louisiana Medical Mutual Ins. Co. et al.; — Defendants); Applying for Supervisory and/or Remedial Writs, Parish of Vermilion, 15th Judicial District Court Div. A, No. 81268; to the Court of Appeal, Third Circuit, No. CW 05-01396.

Denied.


text:
    Dale GRANDA and Jo Ann Granda, Individually, and on Behalf of Their Minor Daughter, Meredith Granda v. STATE FARM MUTUAL INSURANCE COMPANY, the State of Louisiana Through the Department of Transportation & Development, the St. Tammany Parish Police Jury, Bellsouth, Cleco Corporation, Matthew D. Richard and Michael D. Richard.
    No. 2006-C-0589.
    Supreme Court of Louisiana.
    May 5, 2006.
   In re St. Tammany Parish Police Jury; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. G, No. 99-12592; to the Court of Appeal, First Circuit, No. 2004 CA 1722. Denied.

VICTORY, J., would grant.

TRAYLOR, J., would grant.


text:
    Keith BROCK v. MARATHON ASHLAND PETROLEUM, LLC.
    No. 2006-CC-0593.
    Supreme Court of Louisiana.
    May 5, 2006.
   In re Marathon Ashland Petroleum LLC; — Defendant; Applying for Supervisory and/or Remedial Writs Office of Workers’ Compensation District 6, No. 04-07191; to the Court of Appeal, First Circuit, No. 2005 CW 2671.

Denied.


text:
    Robert W. RAPP v. GEICO INDEMNITY COMPANY and Ronald Alvarez.
    No. 2006-C-0594.
    Supreme Court of Louisiana.
    May 5, 2006.
   In re Rapp, Robert W.; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of St. Bernard, 34th Judicial District Court Div. D, No. 98-550; to the Court of Appeal, Fourth Circuit, No. 2005-CA-0368.

Denied.


text:
    Ashli RICHARDSON, Karl M. Beattie and Bobbie G. O’Bryan, Jr. v. Bobby Gerald LOTT, Jr., Bobby Gerald Lott, Sr., State Farm Mutual Automobile Ins. Co. and Terrebonne Parish Consolidated Government.
    No. 2006-C-0596.
    Supreme Court of Louisiana.
    May 5, 2006.
   In re Richardson, Ashli et al.; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Terrebonne, 32nd Judicial District Court Div. B, No. 125,981; to the Court of Appeal, First Circuit, No. 2004 CA 2770.

Denied.


author: McCLENDON, J. DOWNING, J. WELCH, J.,

text:
    DENHAM SPRINGS ECONOMIC DEVELOPMENT DISTRICT v. ALL TAXPAYERS, PROPERTY OWNERS AND CITIZENS OF THE DENHAM SPRINGS ECONOMIC DEVELOPMENT DISTRICT, and Nonresidents Owning Property or Subject to Taxation Therein, and All Other Persons Interested in or Affected in Any Way by the Issuance of Not to Exceed $50,000,000 Denham Springs Economic Development District Sales Tax Increment Bonds (Bass Pro Shops Project) in One or More Series, the Means Provided for the Payment and Security Thereof and Related Matters.
    No. 2005 CA 1684.
    Court of Appeal of Louisiana, First Circuit.
    Aug. 25, 2005.
    See also 894 So.2d 325.

      Fred Chevalier, William Schuette, Baton Rouge, Counsel for Plaintiff/Appellee Den-ham Springs Economic Development District.
    Cheryl M. Kornick, K. Todd Wallace, New Orleans, Counsel for Defendants/Appellants A.. Ponder Jones and Beverly Bon-neval.
    Before: PARRO, DOWNING, GAIDRY, McCLENDON, and WELCH, JJ.
   McCLENDON, J.

|2Two defendants, A. Ponder Jones and Beverly Bonneval (individual defendants), appealed a judgment in favor of the plaintiff, Denham Springs Economic Development District (the District), holding that the individual defendants’ challenge to a resolution proposing a bond issuance, and related proceedings, was untimely. We reverse in part, and affirm the remainder of the judgment.

PROCEDURAL AND FACTUAL BACKGROUND

The District, which comprises seventy-five (75) acres’of vacant property, is contained within the City of Denham Springs in Livingston Parish. It was created as a political subdivision of the state in 2003, pursuant to LSA-R.S. 33:9038.2 to facilitate economic growth in the area. The Bass Pro Project (the Project) envisions the creation of a twenty-seven acre retail outlet, including a restaurant, related infrastructures and public improvements, and a Bass Pro Shops retail store. The Project is to be funded through the issuance of revenue bonds secured by the pledge of local government sales tax increments, in accordance with LSA-R.S. 33:9038.1 et seq. After payment of the revenue bonds in full, Bass Pro Shops would have the option of purchasing the retail store for a nominal fee. See Denham Springs Economic Development District v. All Taxpayers, 04-1674, p. 1 (La.2/4/05), 894 So.2d 325, 327.

The legal proceeding at issue in this case springs from a bond resolution (the Bond Resolution) adopted by the District on March 8, 2005, and published on March 13, 2005. On May 26, 2005, the District filed a motion for judgment, naming as defendants, “all taxpayers, property owners and citizens of the Denham Springs Economic Development District, and nonresidents owning property or subject to taxation therein, and all other persons interested in or affected in any way by the issuance of not to exceed $50,000,000.00 Denham Springs Economic Development District Sales Tax Increment Bonds (Bass Pro Shops Project) in one or more series, the means provided for the payment and security thereof and related matters.” See LSA-R.S. 13:5123. In the motion for judgment, the District sought judicial validation of the bonds and the means of securing and paying them, as described in the Bond Resolution. After the filing, the court ordered the publication of the motion for | ¿judgment and the accompanying court order as required by LSA-R.S. 13:5124. A hearing was scheduled for June 17, 2005.

On June 1, 2005, the individual defendants filed an answer and a peremptory exception raising the objection of no cause of action. On June 10, 2005, the trial court ordered the second publication of the motion for judgment, with a copy of the order. Another hearing was scheduled for June 28, 2005. On June 17, 2005, the individual defendants requested a continuance to allow time for a deposition of a non-party to the suit, Bass Pro, and filed a separate motion for an expedited hearing on the motion for a continuance. The trial court ordered that the motion be heard by telephone conference on June 22, 2005. After the hearing, the trial court denied the motion to continue.

On June 24, 2005, the District filed a “Motion To Strike All Challenges To Bonds & For Entry of Final Judgment,” and attached a certificate of service attesting that counsel of record were sent a copy on the same date, by fax or hand delivery. The motion to strike essentially claimed that the thirty-day time limit, provided in LSA-Const. art. VI, § 35(B) and LSA-R.S. 33:9038.4 L for a challenge to the validity of a bond resolutions and related proceedings, was a peremptive period that had already run before the individual defendants filed their answer. Thus, the individual defendants’ right to challenge was extinguished. Based on the alleged loss of the right to challenge, the District asserted that the court must enter a final judgment recognizing the validity of the Bond Resolution and of all proceedings relating to the bonds, their issuance, security, payment, and authorization.

At the June 28, 2005 hearing, the individual defendants initially objected to hearing the motion to strike and for final entry of judgment, based on lack of formal service of the motion and notice of a requisite show cause hearing. In response, the District noted that the trial was noticed for that day, and argued that the motion based on untimeliness could “be made orally at trial,” and therefore did not require any additional notice. Finding that the motion could dispose of the case, the trial court decided that it would hear the motion to strike.

At that hearing, on the issue of peremption, the individual defendants acknowledged that they were not challenging the District’s right to pledge its own |4money to the Project or to issue bonds secured by the District’s money. Rather, the challenge was to the ability of other taxing entities to agree to cooperate in the project and pledge their tax monies to secure the bonds. Further, the individual defendants asserted that the time limit for challenging the Bond Resolution was not applicable to a tax election that had not been held, or to a cooperative endeavor agreement that was not yet finalized, at the time that the thirty-day time limit had run. They also argued that the thirty-day time limitation on challenges to bond resolutions did not apply to their challenge, which was based on the constitutionality of Chapter 27 of Title 33 of the Louisiana Revised Statutes, entitled “Cooperative Economic Development Law.”

Finding that the individual defendants failed to challenge the Bond Resolution and all related matters contained in the Bond Resolution within the time limit allowed by the constitution and statutory law, the trial court granted the motion to strike the challenges. By a final judgment dated July 12, 2005, the trial court conclusively recognized the validity of the “Bonds, the validity of the tax, any lease or other means provided for the payment of such Bonds and the validity of all pledges of revenues and of all covenants and provisions contained in the instrument or proceedings authorizing or providing for the issuance of such Bonds .... ”

The Individual defendants appealed. They assigned the following errors:

1. The trial court erred in hearing and granting a contradictory motion that had not been set for hearing by rule and that had not been served on Appellants.
2. The trial court erred in allowing the District to use the “notice by publication” provisions of a statute to avoid actual service on known opposition, to avoid any attempt to provide actual notice to known, easily identifiable interested parties, and to prevent the public from having a fair opportunity to challenge a Cooperative Endeavor Agreement.
3. The trial court erred in using a District resolution to perempt any and all challenges to (1) actions by other public bodies that were not yet defined and had not yet taken place at the time the per-emptive period had run out; (2) a cooperative endeavor agreement that had not yet been written and did not exist at the time that the peremptive period had run out; and (3) elections that had not taken place at the time the peremptive period had run out.
4. The trial court erred in validating two voter propositions that are clearly unconstitutional on their face.
5. The trial court erred in validating and precluding all challenges to a cooperative endeavor agreement that (1) upon information and belief, will be written in a way that violates the Louisiana Constitution, LSA-Const. art. VII, § |S14(A); and (2) was never introduced into evidence or even reviewed by the trial court.

GENERAL PROCEDURE FOR BOND ISSUANCE, AND VALIDATION OF BOND ISSUANCE AND COOPERATIVE ENDEAVOR AGREEMENTS

To facilitate economic development, a governmental subdivision may establish an economic development corporation or an economic development district, and issue bonds. LSA-R.S. 33:9038.1, et seq. Also in furtherance of economic development, governmental entities, including the state, are allowed to enter into cooperative endeavor agreements with each other and public or private associations or corporations. LSA-R.S. 33:9021(6); 33:9029.1; 33:9029.2; 33:9031; 33:9038.5. “Cooperative endeavors” may include cooperative financing, cooperative development, or “any other form of cooperative economic development activity.” LSA-R.S. 33:9022(1). To validate cooperative endeavor agreements, a suit may be filed “as though such agreements constituted the issuance of bonds of a governmental unit.” LSA-R.S. 33:9031.1.

If not previously dedicated to another purpose, tax increment financing may provide the payment or security for the project or bonds issued. See LSA-R.S. 33:9023; 33:9032-33; 33:9038.3-4. As in this case, an established economic development district may specifically pledge or dedicate “sales tax increments” as a guaranty of any shortfall in the payment of the bonds or to finance all or part of the project. LSA-R.S. 33:9038.4 A(l).

A “resolution authorizing the issuance of bonds or other debt obligation by a political subdivision shall be published at least once in the official journal of the political subdivision or, if there is none, in a newspaper having general circulation therein.” LSA-Const. art. VI, § 35(B); see LSA-R.S. 33:9038.3 A; 33:9038.4 A(3). “For thirty days after the date of publication, any person in interest may contest the legality of the ordinance or resolution and of any provision therein made for the security and payment of the bonds.” Id. A similar thirty-day time limit is provided in LSA-R.S. 33:9038.3 L and 33:9038.4 L. The statutory provisions state, in part, as follows:

After the expiration of such period, no person may contest the regularity, formality, legality, or effectiveness of the ordinance or resolution, any provisions of the bonds to be issued pursuant thereto, the provisions for | fithe security and payment of the bonds, and the validity of all other provisions and proceedings relating to their authorization and issuance, for any cause whatever.

However, we note that “an election held to incur or assume debt, issue bonds, or levy a tax,” is subject to a different time limit. LSA-Const. art. VI, § 35(A). More specifically, LSA-Const. art. VI, § 35(A) provides as follows: “For sixty days after promulgation of the result of an election ..., any person in interest may contest the legality of the election, the bond issue provided for, or the tax authorized, for any cause.”

All of these time limitations, whether constitutional or statutory, provide peremptory language. If a challenge is not timely made, the issues raised in the resolution or the tax election “shall be conclusively presumed to be valid, and no court shall have authority to inquire into” the covered matters. LSA-Const. art. VI, § 35(A) & (B); LSA-R.S. 33:9038.3 L & 33:9038.4 L. Proceedings to determine the validity of the issuance of governmental bonds are governed by a special set of statutes, LSA-R.S. 13:5121, et seq. Pursuant to LSA-R.S. 13:5123, “[t]he governing body of any governmental unit proposing to issue ... bonds ... may bring at any time a proceeding ... to establish the validity of such bonds, the legality of the election, if any, authorizing the issuance of such bonds, ... and the validity of all pledges of revenues ....”. Further, the motion for entry of judgment to establish the validity of a bond issuance, and related proceedings, is not a generic contradictory-motion, but rather is governed by its own statute, LSA-R.S. 13:5124, which provides:

Service by publication of motion for judgment; parties defendant; notification
A. (1) All such parties shall be served by publishing the motion for judgment in a newspaper published in or having general circulation in such governmental unit in the manner hereinafter set forth. Upon the filing of the motion for judgment, the court shall enter an order requiring the publication of the motion two times within a period of fifteen consecutive calendar days from the date of the issuance of the order, specifying the dates for publication thereof with the first publication as hereinabove provided to be not later than eight days from and after the date of the issuance of the order, and at the same time fix a time and place for hearing the proceeding, which time and place shall be published with the motion for judgment. The date fixed for the hearing shall be at least ten days, but not more than thirteen days, after the second publication of such motion for judgment.
17(2) By publication of such motion for judgment, all taxpayers, property owners, and citizens of such governmental unit including nonresidents owning property or subject to taxation therein, and all other persons having or claiming any right, title, or interest in any property or funds to be affected in any way by the issuance of such bonds, or having or claiming to have any right or interest in the subject matter of such motion for judgment, shall be considered as' parties defendant in such proceedings and as having been duly served, and the court shall have jurisdiction of them the same as if each of them were named individually as a party defendant in such motion for judgment and personally served with process.
B. The party filing a motion for judgment shall also cause notification of said filing to be made upon the State Bond Commission and the attorney general by mailing a certified copy of the motion for judgment by registered or certified mail, with return receipt requested. No judgment can be rendered until the party filing a motion for judgment files in the record an affidavit of the individual who mailed the motion for judgment to the State Bond .Commission and attorney general, showing that it was properly addressed, with sufficient postage affixed, and the date it was deposited in the United States mail, to which shall be attached the return receipt thereon.

The clear goal of these statutes governing affirmation of the validity of a bond issuance is to provide stability in the marketing of governmental bonds. See LSA-R.S. 13:5122. In furtherance of this goal of stability, LSA-R.S. 13:5130 provides that: “No court in which a proceeding to invalidate or sustain bonds is brought shall invalidate the bonds unless it finds substantial defects, material errors and omissions in the incidents of such bond issue. Matters of form shall be disregarded.”

ASSIGNMENTS OF ERROR 1 AND 2 NOTICE AND FAIR HEARING

The individual defendants assign error to the service of the Bond Resolution by publication. See LSA-Const. art. VI, § 35(B); LSA-R.S. 33:9038.3 A & 33:9038.4 A(3). They assert that the District knew of their Interest and was required to serve them individually with the resolution. As legal authority for their position, they cite World Trade Center Taxing District v. All Taxpayers, 04-1365 (La.App. 4 Cir. 9/1/04), 883 So.2d 459, writ denied, 04-2282 (La.10/29/04), 885 So.2d 599, and Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950).

Without addressing the reasoning of the fourth circuit, we simply note that the case is distinguishable. Although the fourth circuit in World Trade Center Taxing District recognized that intervenors in the suit had a right to notice of a hearing on the motion for judgment, the fourth circuit did not fully explain its analysis or underlying 1 sfacts, and did not address or rule on the service by publication of a bond resolution. See World Trade Center Taxing District, 04-1365 at pp. 6-7, 883 So.2d 462.

In our case, the record contains no evidence that the identity, addresses, or alleged interests of the individual defendants were known to the District, nor does the record evidence any agreement to send notice beyond publication. On February 14, 2005, an attorney, Cheryl Kornick, sent a letter to the District’s attorney, requesting actual service of any “legal proceeding” concerning the Project. However, the letter made no reference to specific clients who qualified as parties with an interest sufficient to require notice beyond that chosen by the legislature. Certainly, the individual defendants were not named in the letter. As to the court proceedings, the individual defendants answered the District’s motion for judgment within 6 days, and notice of a hearing on the merits of that motion was provided to them. Similarly, for lack of specificity of identity and a corresponding recognizable substantive liberty or property interest, we see no error based on the tenets of Mullane. For these reasons, we find no violation of due process rights to fair notice and hearing.

At trial the individual defendants admitted receipt of the motion to strike, but argued that they should have received earlier service of said motion. The individual defendants also argue that the motion was the equivalent of a summary proceeding, which is governed by a procedural article requiring service and a hearing. See LSA-C.C.P. art. 2591, et seq. However, the individual defendants concede that the trial court ruled not on the merits, but on the issue of peremption raised by the motion to strike. Thus, the motion to strike was more akin to a peremptory exception raising the objection of no cause of action or of prescription. See Saia v. Asher, 01-1038, p. 4 n.5 (La.App. 1 Cir. 7/10/02), 825 So.2d 1257, 1259 n. 5. Essentially, a hearing on the claim of peremption was held, and the trial court'ruled that the challenge by the individual defendants was not timely under LSA-R.S. 33:9038.4 L.

| n“The peremptory exception may be pleaded at any stage of the proceeding in the trial court prior to a submission of the case for a decision ....” LSA-C.C.P. art. 928 B. The exception may be “disposed of either in advance of or on the trial of the case.” LSA-C.C.P. art. 929 B; see also LSA-R.S. 13:5126 (invests the trial court with much discretion to “make such orders as to the proceedings and such adjournments as will enable him properly to try and determine the same ... with the least possible delay.”). No evidence may be admitted on an exception of no cause of action. LSA-C.C.P. art. 931. Prior to final judgment, peremption may be noticed by the court on its own motion. LSA-C.C. art. 3460.

After a thorough review of the record, we again find no violation of due process rights. The trial court ruled that the challenge was perempted only after a hearing on the question of timeliness, where both parties argued the point.

ASSIGNMENT OF ERROR 3 COOPERATIVE ENDEAVOR AGREEMENT AND ELECTION CHALLENGES

The Individual defendants assign error to the premature application of the constitutional and statutory peremptive periods to what they label as yet undefined issues. They argue that this is particularly true for a cooperative agreement “that had not yet been written and did not exist” and for “elections that had not taken place at the time the peremptive period had run out.” For purposes of clarity, we will address each of these arguments separately.

Cooperative Endeavor Agreements

The published Bond Resolution provided the names of the governmental entities that were cooperating in the financing of the Project, the date each one passed a resolution to hold an election to re-dedicate a percentage of the sales tax it collected, and the percentage rate to be dedicated to the project. Specifically, on the issue of cooperative endeavor agreements, the proposition stated, as follows:

[T]he District desires to enter into a Cooperative Endeavor Agreement ... by and among the District, the City, the Parish, the Gravity Drainage District, the Law Enforcement District, the School Board and the School Board District, ...; the Denham Springs Economic Development Corporation ...; and the State of Louisiana, through the Department of Revenue and Taxation ..., to effect the collection and pledge of the sales tax increments to secure the payment of debt service on the Bonds. ..."

[inThe proposition also referenced a future mortgage agreement that would provide more detail and “be more particularly described within the above-referenced Mortgage Agreement, Cooperative Endeavor Agreement and related agreements necessary to effect the purposes .... ”

In analyzing the argument before us, we note that the statutes do not require a cooperative endeavor agreement to be in final form when referenced in a Bond Resolution. Even under the most stringent statute, which governs cooperative endeavor agreements involving the state, the agreement is required only to “set forth in reasonable detail the obligations of the various parties thereto.” LSA-R.S. 33:9029.2 A(3). Considering the information provided by the District in light of the legislative mandate to afford an expeditious procedure and to invalidate only on the grounds of “substantial” or “material” defects, we find that the Bond Resolution described a cooperative endeavor agreement and financing plan, as accepted by the various taxing entities, sufficient to put the taxpayers on notice. LSA-R.S. 13:5122 & 13:5130; see generally Council of City of New Orleans v. All Taxpayers, 03-0189, pp. 4-5 (La.App. 4 Cir. 2/24/03), 841 So.2d 72, 75-76.

On the issue of whether the per-emptive period of LSA-R.S. 33:9038.4 L applies to cooperative .endeavor agreements, LSA-R.S. 33:9031.1 provides that Part XVI of Chapter 32 of Title 13 is applicable to suits to validate cooperative endeavor agreements, and those suits may be filed “as though such agreements constituted the issuance of bonds of a governmental unit.” We also note that the statutes applicable to bond and cooperative endeavor agreement validation, including LSA-R.S. 33:9038.4 L, are all contained in Title 33, Chapter 27, entitled “Cooperative Economic Development Law.” Finally, we must consider the overall legislative intent to provide an “expeditious” procedure for bond issuance and related matters, in order to insure the stability of the bonds. After our thorough ■ review, we conclude that the court did not err in holding that, under the facts of this case, the peremp-tive period outlined in LSA-R.S. 33:9038.4 L applied to the cooperative endeavor agreements described in the Bond Resolution.

lnFor these reasons, a challenge to the financing plan and the cooperative endeav- or agreement among the various taxing entities should have been initiated within the thirty-day time limitation. Were this court to interpret the peremptive provisions otherwise, a future challenger could impermissibly delay and destabilize the issuance and marketing of governmental bonds, notwithstanding the inclusion of “reasonable detail” in the resolution. LSA-R.S. 33:9029.2 A(3).

Elections

Under the undisputed facts of this case, the Bond Resolution preceded the election that the individual defendants wished to contest. That election was held on April 23, 2005. Therefore, the individual defendants argue that a peremptive period could not begin to run until the election was held.

The applicable statutory time limitation, LSA-R.S. 33:9038.4 L, does not directly reference elections. However, LSA-Const. art. VI, § 35(A) and (B) do speak of elections. Specifically, Section 35(A) provides a sixty-day time limitation to contest tax elections related to the issuance of bonds. See also LSA-R.S. 18:1294 (Title 18 covers general bond, debt, and tax elections). Section 35(B) references elections only at the end of the paragraph, stating that: “it shall be conclusively presumed that every legal requirement for the issuance of the bonds or other debt obligation, including all things pertaining to the election, if any, at which the bonds or other debt obligation were authorized, has been complied with.” LSA-Const. art. VI, § 35(B) (emphasis added).

The use of the terms, “if any” and “were authorized,” in the past tense, suggests an interpretation that reconciles both paragraphs of Section 35. Reading the paragraphs together, paragraph B would be applicable to an unchallenged election held prior to the publication of the resolution. However, in this particular ease, with an election that occurred more than thirty days after the publication of the resolution, an interested party could not be expected to bring a viable challenge to the legality of that election until after the election had actually been held. Before the election occurs, an interested party would have no knowledge of fraud that may be perpetrated during an actual election. Thus, based on our reading of Section 35(A) and (B) in pari materia, a challenge to the legality of the relevant tax election held after the thirty-day peremptive | ^.period had run in this case was not foreclosed. Therefore, to the extent that the trial court held that a challenge to the legality of the election or elections at issue was perempted, we reverse. Such a challenge would be timely if brought within sixty days after promulgation of the result of [the] election .... ” LSA-Const. art. VI, § 35(A).

ASSIGNMENTS OF ERROR 4 AND 5 CONSTITUTIONALITY CHALLENGES

The individual defendants challenge the constitutionality of the tax elections. However, any challenge directed to the Bond Resolution and cooperative endeavor agreement was not made timely. Objections to the election would properly be the subject of a timely challenge to the election, and not part of this appeal.

Finally, we pretermit discussion on the assignment of error 5, which was based on the allegation that the District and other taxing authorities involved in the Project may write a constitutionally invalid cooperative endeavor agreement, some time in the future. We have nothing in this record to review on that issue, and this court does not issue advisory opinions. Citgo Petroleum Co. v. Louisiana Public Service Commission, 04-0914, 04-0917, 04-1190, 041191, 04-1192, p. 12 (La.3/2/05), 898 So.2d 291, 298.

CONCLUSION

For these reasons, we reverse any holding by the trial court that a challenge to the legality of the election was perempted. The remainder of the judgment is affirmed. The costs of the appeal are assessed to the individual defendants, A. Ponder Jones and Beverly Bonneval.

REVERSED IN PART, AND AFFIRMED IN PART.

DOWNING, J., dissents and assigns reasons.

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

DOWNING, J.

hi respectfully dissent. This case involves not only a breach of professionalism in that notice was not provided to an attorney who requested notice, it involves a violation of constitutional due process. In Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314-15, 70 S.Ct. 652, 657-58, 94 L.Ed. 865 (U.S.1950), the Supreme Court instructed us:

An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.
But when notice is a person’s due, process which is a mere gesture is not due process. The means employed must be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it. The reasonableness and hence the constitutional validity of any chosen method may be defended on the ground that it is in itself reasonably certain to |ainform those affected, ..., or, where conditions do not reasonably permit such notice, that the form chosen is not substantially less likely to bring home notice than other of the feasible and customary substitutes.
It would be idle to pretend that publication alone as prescribed here is a reliable means of acquainting interested parties of the fact that their rights are before the courts. It is not an accident that the greater number of cases reaching this Court on the question of adequacy of notice have been concerned with actions founded on process constructively served through local newspapers. Chance alone brings to the attention of even a local resident an advertisement in small type inserted in the back pages of a newspaper, and if he makes his home outside the area of the newspaper’s normal circulation the odds that the information will never reach him are large indeed. The chance of actual notice is further reduced when as here the notice required does not even name those whose attention it is supposed to attract, and does not inform acquaintances who might call it to attention. In weighing its sufficiency on the basis of equivalence with actual notice we are unable to regard this as more than a feint. (Citations omitted.)

Clearly, an attorney who on behalf of his clients requests notice is an interested party entitled to actual notice. These Múl-lame precepts should apply even more so to parties who identify themselves through their attorney and specifically request notice.

The Constitutional right to due process trumps peremption. Accordingly, I would remand for a hearing.

WELCH, J.,

Concurs in Part and Dissents in Part.

hi respectfully write to concur in the ultimate conclusion reached by the majority that the individual defendants’ challenge to the resolution proposing the bond issuance was perempted, thus affirming the final judgment that conclusively recognized the validity of the bonds and the tax. The people of Livingston Parish overwhelmingly approved the issuance of bonds up to $50,000,000 by the Denham Springs Economic Development District (E.D.D.). The will of the electorate should not be displaced by judicial ruling absent fraud or clear error that negates the substance of the voter referendum.

I also concur in the majority’s conclusion that based on the record as presented, the individual defendants were not entitled to actual notice or service of the resolution, although I disagree with the majority’s conclusion that the February 14, 2005 letter in the record from Cheryl Kornick lacked “specificity of identity and a corresponding recognizable substantive liberty or property interest.” Based on the history of this case, counsel for movers knew exactly who the requesting ^parties were and their interest in the matter. However, the record is devoid of any evidence, either introduced or proffered, that there was an agreement to provide actual notice. If there was an agreement, I believe that the dictates of Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950) would mandate actual notice to the individual defendants.

I further write to respectfully dissent in part. The majority concludes, that with regard to the motion to strike filed by E.D.D. on June 24, 2005, and set for hearing on June 28, 2005, there was no due process violation. The majority fails to address that the trial court committed a procedural legal error by holding a hearing on June 28, 2005, on the motion to strike and rendering judgment. Whether it was a motion to strike or a “peremptory exception raising the objection of no cause of action or of prescription,” the Code of Civil Procedure and the Uniform Rules for District Courts provide for proper service of such a pleading, which is clearly lacking in this case. See La. C.C.P. arts. 963 and 1313, and Uniform Dist. Ct. Rules 9.8 and 9.9. Although La. R.S. 13:5121, et seq., provides that the trial court shall proceed to hear and determine all questions of law and fact at the trial on the motion for judgment, the special statutes pertaining to proceedings to determine the validity of the issuance of governmental bonds do not supersede or abrogate the rules of law and procedure set forth in the Louisiana Code of Civil Procedure and the Uniform Rules for District Courts.

For these reasons I respectfully concur in part and dissent in part.

      . At oral arguments, counsel for the individual defendants asserted that counsel for the District agreed to send the requested notice, but did not. However, the alleged agreement was neither mentioned nor proffered during the June 28th hearing. Nor was said agreement or conversation referenced or confirmed in the letter introduced into evidence. In deciding this case, we are bound solely by the evidence contained in the record before us.

      . We make no ruling as to the outcome of a case where the election was held while the thirty-day period was running. That is not the case before us on appeal.

      . We also make no ruling on whether the validity of a future cooperative endeavor agreement might be challenged on the basis of being so vastly different from that which was noticed to the public.


author: GAIDRY, J. CARTER, C.J.,

text:
    Jerald P. BLOCK v. BERNARD, CASSISA, ELLIOTT & DAVIS, Stephen N. Elliott, Sentry Insurance Company and Keith J. Labat.
    No. 2004 CA 1893.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 4, 2005.

      Matthew F. Block, Thibodaux, Counsel for Plaintiff Appellant Jerald P. Block.
    David S. Daly, M. Sean Reid, Metairie, Counsel for Defendants/Appellees Bernard, Cassisa, Elliott & Davis and Stephen N. Elliott.
    Terry Christovich Gay, Kevin R. Tully, H. Carter Marshall, New Orleans, Counsel for Defendant/Appellee Sentry Insurance A Mutual Company.
    Keith J. Labat, Thibodaux, In Proper Person.
    Albert J. Derbes, III, Eric J. Derbes, Melanie M. Mulcahy, Metairie, Counsel for Third-Party Defendants/Appellees Keith J. Manning and Susan P. Manning.
    Howard B. Kaplan, Metairie, Counsel for Defendant/Appellee Stephen N. Elliott.
    Before: CARTER, C.J., DOWNING, and GAIDRY, JJ.
   GAIDRY, J.

| aThis appeal involves an action by an attorney to recover an unpaid fee owed by former clients in a personal injury action from attorneys representing an adverse party in that underlying action. The plaintiff-appellant, Jerald P. Block, seeks the reversal of the trial court’s judgment sustaining a peremptory exception of no cause of action in favor of the defendants-appellees, Stephen N. Elliott and the law firm of Bernard, Cassisa, • Elliott & Davis. We affirm the trial court’s judgment for the following reasons.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

On March 17, 1993, Keith J. Manning was seriously injured in a motor vehicle accident. In December 1993, he and his wife, Susan P. Manning, retained an attorney, Jerald P. Block, to represent them in the assertion of personal injury claims arising from the accident. Mr. Block filed suit for damages on behalf of the Man-nings on January 21, 1994. The Mannings later executed a written contingent fee agreement with Mr. Block on January 31, 1997 (“effective” that date), providing for a one-third (33½ %) contingent fee, in addition to reimbursement of litigation expenses and costs.

During the course of Mr. Block’s representation of the Mannings, he delegated certain aspects of the handling of the case to Keith J. Labat, an associate attorney employed by him. Mr. Labat left Mr. Block’s employment in April 1997. The Mannings subsequently decided to retain Mr. Labat to represent their interests, but offered to continue to be represented by Mr. Block as co-counsel. Mr. Block declined the offer, and was notified that he had been discharged by the Mannings on November 29, 1997. He properly recorded his written contingent fee agreement with the Rtrial court’s clerk of court on December 22, 1997, and also filed a petition of intervention in the Mannings’ personal injury action the same day.

The Mannings’ claims against the tort-feasors and their liability insurer were ultimately settled for the latter’s liability coverage limits of $100,000.00, and the Mannings settled with their own underin-sured motorists insurer for its applicable coverage limits of $10,000.00. The primary focus of the litigation, however, was the potential liability of Sentry Insurance A Mutual Company (Sentry), which provided underinsured motorists coverage under primary and umbrella policies issued to Mr. Manning’s employer.

Sentry was represented in the underlying action by the defendant attorneys herein, Stephen N. Elliott and the firm of Bernard, Cassisa, Elliott & Davis (the defendant attorneys). Sentry eventually made an unconditional tender of $350,-000.000 in December 1997 as part of a broader settlement agreement, and thereafter paid another $1,500,000.00 in compromise of the Mannings’ claim against it.

On December 14, 1999, Mr. Block sent a letter by mail and facsimile telecopier to Mr. Elliott, confirming his understanding that the underlying action had been settled and that his name would be included as a payee on the settlement check. In the meantime, Mr. Labat had advised his clients to refuse to agree to the inclusion of Mr. Block as a payee on the check, and advised Mr. Elliott by letter dated December 16, 1999 that the Mannings would not agree to the proposed compromise if Mr. Block’s name was included on the check. On December 20, 1999, Mr. Elliott advised Mr. Block via mail and facsimile telecopier that he and his client “have been informed by Keith Labat that the Mannings will not settle this case if your name is included on the check,” and that the check would be issued payable | fito Mr. Labat and the Mannings. Mr. Elliott also conveyed Mr. Labat’s supposed agreement to “take care of all of [Mr. Block’s] costs in this matter.”

Mr. Block promptly replied to Mr. Elliott’s letter of December 20, 1999 later that day, via the same media. He advised Mr. Elliott that he intended “to hold you, your firm and Sentry Insurance Company [sic] liable for all of my costs, fees, etc.” and that he intended “to take action necessary to nullify the settlement.” Finally, he emphasized that the dispute as to his fee could be resolved “by including my name on the check or draft .... ”

Mr. Block also filed a petition for injunc-tive relief on December 20, 1999, seeking to enjoin the negotiation of the settlement check or draft or any other disposition of the total attorney fee portion of the settlement funds. The trial court denied injunc-tive relief, and the final release and settlement agreement between the Mannings and Sentry was signed the following day, December 21, 1999. As part of the settlement agreement, the Mannings agreed to indemnify Sentry from any further claims related to their causes of action, including claims for attorney’s fees, and Mr. Labat expressly agreed to personally indemnify Sentry and the defendant attorneys for any claim made by Mr. Block for his fee and costs.

Mr. Block’s intervention was tried on April 1-3, 2002. The trial court found that the Mannings discharged Mr. Block for cause, and that he was entitled to $32,666.65 as his fee, with the balance of $620,666.65 being apportioned to Mr. La-bat. The judgment in favor of Mr. Block was rendered Ragainst Mr. Labat, rather than the Mannings, although Mr. Labat was not a defendant in intervention, and was signed on May 6, 2002.

Mr. Block appealed the judgment on his intervention. In an unpublished opinion, this court held that the trial court erred in finding that Mr. Block was discharged for cause, and amended the amount of Mr. Block’s attorney fee award by increasing it to $489,999.99, representing 75% of the total one-third amount attributable to attorney’s fees. Manning v. T.H.E. Insurance Company, et al., 02-1999 (La.App. 1st Cir.9/26/03) (unpublished opinion). This court further amended the judgment to reflect that the Mannings were the parties cast, rather than Mr. Labat, citing La. C.C.P. art. 2164’s authority to “render any judgment which is just, legal, and proper upon the record on appeal.” In doing so, we noted that all other issues and claims asserted by Mr. Block were pretermitted.

On December 1, 2008, Mr. Block instituted the present action, seeking recovery of his unpaid fee of $489,999.99, together with legal interest from |7the date of filing of his prior intervention and all costs. Named as defendants were the defendant attorneys, Sentry, and Mr. Labat. Mr. Block alleged that by “knowingly and purposely” omitting his name from the settlement check, the named defendants “purposely and consciously ignored [his] intervention,” and that they “violate[d] Louisiana law and the Rules of Professional Conduct,” thereby rendering them solidarily liable to him.

In response to Mr. Block’s petition, Sentry filed a combined pleading incorporating dilatory and peremptory exceptions, its answer, a cross-claim for indemnity against Mr. Labat, and a third-party demand for indemnity against the Mannings. The defendant attorneys responded with combined dilatory and peremptory exceptions, consisting of a dilatory exception of discussion and a peremptory exception raising the objections of no right of action, no cause of action and peremption, and res judicata.

The hearing on the defendant attorneys’ exceptions, together with other exceptions and motions, took place on April 16, 2004. The trial court ruled that Mr. Block had not stated a viable cause of action against Sentry, but granted him leave to amend his petition to do so. As to the defendant attorneys, the trial court sustained their peremptory exception on the grounds that Mr. Block had not stated, and could not properly state, a cause of action against them, and dismissed his petition against those defendants with prejudice. The other exceptions at issue were overruled or continued as moot. The trial court’s judgment in that regard was signed on April 29, 2004, as were its written reasons for judgment. This appeal followed.

1 «ASSIGNMENT OF ERROR AND ISSUES PRESENTED

Mr. Block contends the trial court erred in holding that he did not state a cause of action against the defendant attorneys in his petition. He frames the issues presented for our review as follows:

1. Whether a discharged attorney has a cause of action against the tortfeasor’s [sic ] counsel when the name of the discharged attorney is deliberately left off a settlement draft payable to the plaintiff and new plaintiffs counsel;
2. Whether a discharged attorney may hold the tortfeasor’s [sic ] counsel liable for the fee owed by the plaintiff when a settlement draft is issued which deliberately omits the name of the discharged plaintiff attorney.

APPELLATE REVIEW OF JUDGMENT SUSTAINING PEREMPTORY EXCEPTION OF NO CAUSE OF ACTION

The objection that a petition fails to state a cause of action is properly raised by the peremptory exception. La. C.C.P. art. 927(A)(4). A trial court’s judgment sustaining the peremptory exception of no cause of action is subject to de novo review by an appellate court, employing the same principles applicable to the trial court’s determination of the exception. Stroscher v. Stroscher, 01-2769, p. 3 (La.App. 1st Cir.2/14/03), 845 So.2d 518, 523.

The purpose of the peremptory exception of no cause of action is to determine the sufficiency in law of the petition, in terms of whether the law extends a remedy to anyone under the petition’s factual allegations. Id. Generally, no evidence may be introduced to support or controvert the exception. La. C.C.P. art. 931. However, Louisiana jurisprudence recognizes an exception to this rule, whereby evidence admitted without objection may be considered by the court as enlarging the pleadings. Stroscher, 01-2769 at p. 3, 845 So.2d at 523. Here, the record reflects that evidence was received during the course of the hearing held on multiple | exceptions and motions, and that no objection was made to the trial court’s consideration of such evidence for purposes of determining the peremptory exception of no cause of action.

For purposes of determining the issues raised by a peremptory exception of no cause of action, the well-pleaded facts in the petition must be accepted as true, and the court must determine if the law affords the plaintiff a remedy under those facts. Id. Any doubts are resolved in favor of the sufficiency of the petition. Id. If two or more causes of action are based on separate and distinct operative facts, the court may sustain the exception in part, while preserving other causes of action sufficiently pleaded. Everything On Wheels Subaru, Inc. v. Subaru South, Inc., 616 So.2d 1234, 1242 (La.1993).

DISCUSSION

In the leading case of Montalvo v. Sondes, 93-2813 (La.5/23/94), 637 So.2d 127, the supreme court addressed the issue of whether a party may maintain a cause of action against his adversary’s attorney. Citing its prior holding in Penalber v. Blount, 550 So.2d 577 (La.1989), the court reaffirmed the following general principle of our law:

Louisiana subscribes to the traditional, majority view that an attorney does not owe a legal duty to his client’s adversary when acting in his client’s behalf. A non-client, therefore, cannot hold his adversary’s attorney personally liable for either malpractice or negligent breach of a professional obligation. The intent of this rule is not to reduce an attorney’s responsibility for his or her work, but rather to prevent a chilling effect on the adversarial practice of law and to prevent a division of loyalty owed to a client. (Citation omitted.)

Montalvo, 93-2813 at pp. 3-4, 637 So.2d at 130.

ImThe supreme court in Montalvo pointed out that despite the foregoing principle, an attorney may nevertheless be held personally liable to his client’s adversary for intentional tortious conduct. The court further explained that in order to state such a cause of action, “it is essential for the petition to allege facts showing specific malice or an intent to harm on the part of the attorney.... ” Montalvo, 93-2813 at p. 4, 637 So.2d at 130. And it seems to us that the standard should be even stricter in the case of a claim by one attorney against another arising from an adversarial contest, as the “chilling effect” on the exercise of independent judgment in representation would be even more pronounced. See, e.g., Aglira v. Julien & Schlesinger, P.C., 214 A.D.2d 178, 183, 631 N.Y.S.2d 816, 819 (1995) (Noting that “[a]n attorney does not owe a duty of care to his adversary or one with whom he is not in privity,” the court held that a law firm representing a plaintiff in an underlying medical malpractice action had no cause of action against the opposing defense firm in a later action by the plaintiff against his former attorneys for malpractice in acquiring a settlement annuity.)

Even if the omission of Mr. Block’s name as a payee on the settlement check was deliberate, as all parties concede, that action cannot rise to the status of an intentional tort absent a legal duty owed by the defendant attorneys to avoid harm to Mr. Block, the breach of that duty being the legal cause of damages, and the requisite malicious intent on their part in the breach of the duty. We question whether the conduct at issue can form the basis of an intentional tort, as such a conclusion presupposes that the defendant attorneys, rather than their client, had the power to make the ultimate decision as how the check was drawn. Further, that conclusion would have to presuppose the failure or refusal of the Mannings and Mr. InLabat to recognize and pay the fee owed to Mr. Block. It would seem that the latter conduct would be the actual legal cause of any harm, rather than the mere omission of Mr. Block as a named payee, and would form the basis of contractual and statutory causes of action, rather than a delictual cause of action. At any rate, the facts alleged in Mr. Block’s petition as to the defendant attorneys are plainly insufficient to meet the Montalvo standard of malicious intent; thus, they fail to state a cause of action based upon intentional tort.

Leaving aside the issue of a Mon-talvo-type intentional tort, the question then becomes whether Mr. Block has stated a cause of action against the defendant attorneys under any other theory of recovery. He postulates the existence of such a cause of action based upon an alleged duty imposed upon the defendant attorneys by both La. R.S. 37:218 and Rule 1.15 of the Louisiana State Bar Association’s Rules of Professional Conduct.

At the time of the settlements at issue, La. R.S. 37:218 provided:

A. By written contract signed by his client, an attorney at law may acquire as his fee an interest in the subject matter of a suit, proposed suit, or claim in the assertion, prosecution, or defense of which he is employed, whether the claim or suit be for money or for property. In such contract, it may be stipulated that neither the attorney nor the client may, without the written consent of the other, settle, compromise, release, discontinue, or otherwise dispose of the suit or claim. Either party to the contract may, at any time, file and record it with the clerk of court in the parish in which the suit is pending or is to be brought or with the clerk of court in the parish of the client’s domicile. After such filing, any settlement, compromise, discontinuance, or other disposition made of the suit or claim by either the attorney or the client, without the written consent of the other, is null and void and the suit or claim shall be proceeded with as if no such settlement, compromise, discontinuance, or other disposition had been made.
B. The term “fee”, as used in this Section, means the agreed upon fee, whether fixed or contingent, and any and all other amounts advanced by the attorney to or on behalf of the client, as permitted by the Rules of Professional Conduct of the Louisiana State Bar Association.

|1?The practical effect of this statute has been succinctly stated by one Louisiana court: “When the contract is recorded, as a practical matter, the attorney and his client must be named payees.” New Orleans Public Service, Inc. v. Vanzant, 580 So.2d 533, 536 (La.App. 4th Cir.), writ denied, 584 So.2d 1168 (La.1991). It has previously been recognized that “it is the customary industry practice in the legal profession for settlement checks to be issued in the names of both the client and the attorney.” Ferguson v. West Jefferson Levee District Board of Commissioners, 96-385, p. 6 (La.App. 5th Cir.11/14/96), 685 So.2d 273, 276, writ granted in part and denied in part, 96-3005 (La.2/7/97), 688 So.2d 486. We likewise take judicial notice that the prevailing litigation practice among both the insurance industry and the legal profession is to include as payees on a settlement check the names of the client, the client’s present and former attorneys, and in some cases other third parties having an interest in the funds. La. C.E. art. 201(b)(1), (C); but see La. C.E. art. 201(E). But we cannot conclude, nor has it been shown, that this custom has acquired the force of law, despite its prevalence.

Rule 1.15 forms part of Article 16, Rules of Professional Conduct, in the articles of incorporation of the Louisiana State Bar Association (LSBA). At the time of the settlements in 1999, Rule 1.15 provided, in pertinent part:

[ 1s(a) A lawyer shall hold property of clients or third persons that is in a lawyer’s possession in connection with a representation separate from the lawyer’s own property. Funds shall be kept in a separate account maintained in a bank or similar institution in the state where the lawyer’s office is situated, or elsewhere with the consent of the client or third person. Other property shall be identified as such and appropriately safeguarded. Complete records of such account funds and other property shall be kept by the lawyer and shall be preserved for a period of five years after the termination of the representation.
(b) Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person. Except as stated in this rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request.by the client or third person, shall promptly render a full accounting regarding such property.
(c) When in the course of representation a lawyer is in possession of property in which both the lawyer and another person claim interests, the property shall be kept separate by the lawyer until there is an accounting and severance of their interests. If a dispute arises concerning their respective interests, the portion in dispute shall be kept separate by the lawyer until the dispute is resolved.

According to the LSBA’s Ethics Advisory Service Committee, Rule 1.15 is intended to be “the ‘how to’ of trust accounting in a nutshell,” governing an “attorney’s actions when there are competing parties with interest in money that is held in trust .... ” LSBA Ethics Advisory Service Committee, The Pitfalls of Rule 1.15(b), 48 La.B.J. 392 (2001). (Our emphasis.) The supreme court has summarized Rule 1.15(a) as “relate[d] solely to the duty of an attorney to hold property of a client or third party in a separate fund” and Rule 1.15(b) as “relate[d] to conversion.” In re Wittenbrink, 03-0425, p. 5 n. 3 (La.6/27/03), 849 So.2d 18, 21 n. 3.

In a recent public opinion, the LSBA’s Rules of Professional Conduct Committee summarized the import of present Rule 1.15(d) (former Rule 1.15(b), cited supra):

|14A lawyer’s obligation to safeguard funds or property runs not only to the client, but also to third parties whom the lawyer knows to have certain legally enforceable rights to the funds or property. Enforceable third-party rights which must be protected include judgments, liens or privileges, and written guarantees. The lawyer’s obligation to third parties is separate and distinct from the obligation to the client and may not be disregarded at the request or direction of the client. In the case of a dispute over funds between a client and a third party making a legally enforceable claim, the lawyer may not unilaterally arbitrate the distribution but should consider seeking resolution by the court.

Louisiana State Bar Association Public Opinion 05-RPCC-004, p. 1 (4/4/05). In its commentary on the foregoing opinion, the committee explained:

Usually this issue arises as the result of the payment of a settlement or a judgment in a personal injury case. The payment is generally made in the name of both the lawyer and the client, and the funds are thus placed in the lawyer’s trust account for subsequent distribution between the lawyer and the client in accord with the fee agreement. Often, however, medical or other types of bills related to services provided to the client by third parties have not been paid in full prior to the resolution of the case. The intent is generally that these third parties should also be'paid out of the proceeds of the settlement or judgment, and most clients readily agree that the funds can be distributed in that fashion.
Occasionally, however, a client will balk at the proposed distribution to third parties and seek instead to receive all of the funds, less the lawyer’s fees and expenses.

Id. at p. 2.

Mr. Block attempts to analogize La. R.S. 37:218 to La. R.S. 9:4752, et seq., which establish a privilege in favor of an injured party’s medical providers on proceeds collected from a third party. The statutes are not fairly comparable. It is true that La. R.S. 9:4754 makes “any person who ... pays over any monies subject to the privilege created herein, to any injured person, or to the attorney, heirs, or legal representatives of any injured person” liable to the health care provider whose bill is not paid, and that attorneys disbursing settlement funds are subject to such liability. See Charity Hospital of Louisiana in New Orleans v. Band, 593 So.2d 1392, 1394-95 (La.App. 4th Cir.) writ denied, 600 So.2d 645 (La.1992). But La. R.S. 9:4754 and the related statutes are quite specific as to the broad scope of the privilege and the persons upon whom liability is imposed, whereas La. R.S. 37:218, as interpreted by our supreme court, is limited in its scope. Comparison of the provisions thus supports a conclusion opposite to that advanced by Mr. Block.

Mr. Block’s pursuit of greater protection than that afforded by La. R.S. 37:218 and its interpretative jurisprudence has an inherent, fatal flaw. The very reason for Mr. Block’s insistence that his name be included on the settlement check was to grant him rights under the Louisiana commercial laws, La. R.S. 10:1-101, et seq., comparable to those of the other payees regarding the possession, indorsement, and negotiation of the check as a negotiable instrument. But the same commercial laws clearly establish that the defendant attorneys were never “holders” of the check, and thus should not be considered as having “received,” “held,” or “possessed” the funds represented by the check, for purposes of Rule 1.15. There is no allegation or suggestion that the defendant attorneys exercised any right of ownership or possession over the settlement check or the funds it represented, indorsed the check, or held the check or any funds in trust for anyone. Rather, the allegations show that they simply handled the delivery of their client’s check |1fiin their status as agents or mandataries for their client, who was paying the funds, not receiving them. The defendant attorneys promptly notified Mr. Block after receiving the Mannings’ demand relating to the form of the cheek, and also notified him of the anticipated transmission of the check. Rule 1.15 simply has no application to the defendant attorneys’ situation, although it certainly is directly applicable to that of Mr. Labat.

It is evident from the record that Sentry made an informed decision to accede to the Mannings’ demand to exclude Mr. Block’s name as a co-payee on the settlement check, in order to obtain an enforceable written compromise agreement. See La. C.C. art. 3071. In doing so, it necessarily took the calculated risk of future liability to Mr. Block in the event the Mannings and Mr. Labat failed to honor Mr. Block’s privilege for his fee. See Scott v. Kemper Insurance Company, 377 So.2d 66, 70 (La.1979). The very fact that the present litigation is ongoing suggests that Mr. Block’s concerns regarding his ability to obtain his fee from the funds held by Mr. Labat were legitimate, if not prescient.

By pursuing Sentry, Mr. Block will necessarily expose his former clients to the indemnity claim asserted by Sentry. Should Sentry be held liable for Mr. Block’s fee, it may seek indemnity from either Mr. Labat, the Mannings, or both. The Mannings, of course, could have avoided this result by permitting Mr. Block to be included as a payee on the settlement checks. For whatever reason, they chose not to do so, to their potential peril. Of course, they may have recourse against Mr. Labat, but such recourse may ultimately be of little practical benefit to them should they encounter the same obstacles Mr. Block did. The end result may be that the Mannings will ultimately pay over $1,170,000.00 in attorney fees, in addition to litigation 1-^expenses, interest, and court costs, out of a total damages recovery of $1,960,000.00. Such a result, should it occur, would be a sad commentary on both our legal profession and the present mechanics of the contingent fee system, and would cry out for the formulation of a certain method of prevention of such situations in the future, protecting all clients (both plaintiffs and defendants) from unnecessary double fee payments.

Although we resolve the issue before us adversely to Mr. Block, we acknowledge that the language of Rule 1.15(b), on its face, might reasonably be read as lending some support to his argument. Within its broader context, however, we must conclude that the rule does not impose an affirmative duty upon the defendant attorneys to independently ensure either the inclusion of Mr. Block as a payee' on the checks issued by Sentry or the separate payment of Mr. Block’s then-indeterminate fee by their client. Should Sentry and the Mannings have consented to the inclusion of Mr. Block as a payee on the settlement checks? Common sense, prudence, and customary practice would certainly dictate that course of action. Should there be such an affirmative duty imposed upon insurance defense counsel simply acting as agents in transmitting settlement checks and releases, in favor of discharged opposing counsel? We choose not to make such a perilous leap over a chasm of serious doubt. We leave that policy decision to the will of the legislature, or to the sagacity of the supreme court in its rulemaking role. We simply [ 1sconclude that no such duty presently- exists under our law, and that Mr. Block has not and cannot state a cause of action against the defendant attorneys for that reason.

DECREE

The judgment of the trial court, sustaining the peremptory exception of no cause of action and dismissing with prejudice the cause of action of the plaintiff-appellant, Jerald P. Block, against the defendants-appellees, Bernard, Cassisa, Elliott & Davis and Stephen N. Elliott, is affirmed. All costs of this appeal are assessed to the plaintiff-appellant, Jerald P. Block.

AFFIRMED.

DOWNING, J., concurs for the reasons assigned by CARTER, J.

CARTER, J., concurs with reasons.

CARTER, C.J.,

concurring.

hi concur with the result reached in the majority opinion and join in the holding that Mr. Block has no cause of action against the defendant attorneys herein. I do not join in the discussion regarding Mr. Block’s causes of action against other parties. Nor do I ascribe to the majority’s views on how this situation could have been avoided, or how it can be prevented in the future, because I believe such is dicta unnecessary to the decision of this case.

      . In his letter to Mr. Elliott, Mr. Block cited the case of Scott v. Kemper Insurance Company, 377 So.2d 66 (La.1979), in support of his threat of recourse against the defendant attorneys. We emphasize, however, that the same case expressly held that a discharged attorney “has no right to interfere with or nullify the settlement which his former client has made," despite La. R.S. 37:218’s language to the contrary. Id. at 70.

      . The judgment on Mr. Block’s intervention against his former clients is now final and definitive. However, one of the issues raised in this appeal and addressed at length by the opposing parties is whether Sentry and the defendant attorneys have the right to challenge the apportionment and amount of the fee awarded to Mr. Block, as they were not parties cast in judgment on Mr. Block’s intervention in the underlying action. We address this point because of its potential relevance to Mr. Block's cause of action against the defendant attorneys asserted herein, which is expressly predicated upon La. R.S. 37:218’s provisions requiring a written, recorded fee contract. For example, could the apportionment and amount of the fee attributable to work performed prior to the “effective” date of the written contingent fee agreement (January 31, 1997) be challenged on the grounds that it must be based upon quantum meruit, rather than a contingent fee? The question becomes even more compelling when it is considered that Mr. Block's own written contract specifically provided that "if Block is discharged ... before any settlement is offered or any award ,is obtained, Block ... shall be entitled to reasonable compensation for all work done on the case." (Our emphasis.) On the other hand, since La. R.S. 37:218 creates a privilege, it may be that the amount of the privilege may not be collaterally attacked by Sentry or the defendant attorneys, given the finality of the judgment against the Mannings. Because of our ultimate ruling herein, however, we need not resolve these issues.

      . In the prior appeal, this court opined in a footnote that the defendant attorney herein, Stephen N. Elliott, was "not a totally unbiased witness in this matter,” and intimated that Mr. Block might have "rights” against Sentry and "others arising from or related to the purposeful or accidental omission of Block's name from the settlement drafts.” Manning, 02-1999 at p. 13, n. 10. (Our emphasis.)

      . On June 4, 2004, Mr. Block filed a motion to certify the judgment at issue as final for purposes of appeal pursuant to La. C.C.P. art. 1915(B). The trial court granted that motion on August 3, 2004. However, as the judgment dismissed the defendant attorneys from the litigation, certification of the judgment as final under La.- C.C.P. art. 1915(B) was unnecessary. La. C.C.P. art. 1915(A)(1); La. C.C.P. art. 1911. Motorola, Inc. v. Associated Indemnity Corporation, 02-0716, pp. 10-11 (La.App. 1st Cir.4/30/03), 867 So.2d 715, 721.

      . In its oral reasons for judgment on the hearing date, the trial court stated that its ruling on the peremptory exceptions of no cause of action was "[biased upon the arguments and the evidence that’s been presented.”

      . Even a cursory review of the jurisprudence of other jurisdictions will reveal the common acceptance of the practice of including a lien-holder with interest in a settlement's proceeds as a co-payee on a settlement check. See, e.g., Mercado v. Allstate Insurance Company, 340 F.3d 824, 827-28 (9th Cir.2003); B-Mall Company v. Williamson, 977 S.W.2d 74 (Mo.App. W.D.1998). The latter case is interesting in that it involved the issue of whether the defendants in the original action breached a settlement agreement with the plaintiffs in the original action by "gratuitously” including the plaintiffs' former attorney as a co-payee on the settlement check, over their objection. The court resolved the issue in favor of the original defendants. It should be noted, however, that the original plaintiffs had already signed the release, and that there was prior Missouri jurisprudence holding that the inclusion of the former attorney’s name did not constitute a contractual breach, since it was a proper method for the original defendants to protect themselves and constituted a sufficient tender under Missouri law. Id., 977 S.W.2d at 79.

      . If a negotiable instrument is payable to two or more persons not alternatively, it is payable to all of them and may be negotiated, discharged, or enforced only by all of them. La. R.S. 10:3-110(d).

      .To acquire possession, one must intend to possess as owner and must take corporeal possession of the thing. La. C.C. art. 3424. (An attorney receiving funds owed to his client "possesses” those funds only on behalf of his client.) "Holder,” with respect to a negotiable instrument payable to an identified person, means the identified person in possession. La. R.S. 10:1-201(20). If an instrument is payable to an identified person, negotiation requires transfer of possession of the instrument and its indorsement by the holder. La. R.S. 10:3-201(b).

      . See La. C.C. arts. 3421, 3429, and 3431. See also La. R.S. 10:3-306.

      . It is possible that La. R.S. 37:218 might be amended to codify the customary practice of including the name of a discharged attorney with a recorded fee contract as an additional payee on any settlement check or draft, except for good cause or in those cases where an alternate method of protecting the privilege, such as a concursus action, is available. Such a statutory requirement would remove any choice in the matter from the parties. Thereafter, parties to compromise negotiations would be charged with actual or constructive knowledge of that legal requirement, and a compromise would not fail because one party refuses to execute final releases due to the inclusion of a discharged former attorney as a payee on a settlement check or draft.

      . See LSBA Ethics Advisory Service Committee, 48 La.B.J. at 394 ("Until the Supreme Court provides definitive guidance, lawyers should protect themselves by carefully segregating funds which a client owes to a third party judgment or lien creditor, ... until such time as the nature and extent of the obligation can be resolved.”)


author: | .McCLENDON, J.

text:
    Crystal Marie THOMPSON v. BGK EQUITIES, INC., Wampold & Company, Inc., the Travelers Property Casualty Insurance Company and XYZ Insurance Company.
    No. 2004 CA 2366.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 4, 2005.
    Writ Denied March 17, 2006.

      Anthony J. Milazzo, Jr., Metairie, Counsel for Plaintiff/Appellant Crystal Marie Thompson.
    L. Dean Fryday, Jr., Baton Rouge, Counsel for Defendants/Appellees BGK Equities, Inc. and The Travelers Property and Casualty Company.
    Before: WHIPPLE, McCLENDON, and WELCH, JJ.
   | .McCLENDON, J.

Plaintiff- appeals a summary judgment dismissing her lessor liability claim with prejudice. For the reasons that follow, we affirm.

FACTUAL AND PROCEDURAL HISTORY

The underlying facts in this case are undisputed. Plaintiff, Crystal Thompson, leased apartment number 144 at Sable Chase Apartments in November of 1998. On June 7, 2001, she suffered a slip and fall as she descended the exterior stairs that provided access to and from her second story apartment. The stairs were wet, as it had been raining for several days. In fact, it was drizzling at the time she fell.

In 2002, Ms. Thompson filed suit against the apartment owner and lessor, BGK Equities, Inc. (BGK), and its insurer, Travelers Indemnity Company, alleging that the stairs contained a defect that caused her to fall and sustain injuries. In April 2004, the defendants filed a motion for summary judgment contending that Ms. Thompson lacked the factual support necessary to prove the existence of a defect in the stairs. They maintained that the water on the stairs was not a defect, but was, at most, a temporary condition that was open and obvious to everyone. They further pointed out the lack of any other accidents involving any of the exterior stairways at the complex. Alternatively, defendants argued that even if a defect existed, Ms. Thompson would be unable to prove that they knew or should have known of its existence, as required under La. C.C. art. 2317.1. In conjunction with their motion, defendants submitted an affidavit by general manager Russell Lober, who handled the day-to-day affairs of the IsSable Chase Apartments. Therein, Mr. Lober averred that there had never been an accident, claim, or notice of any defective or hazardous condition involving any of the exterior stairways located on the property.

In opposition, Ms. Thompson maintained that La. C.C. art. 2695 was the controlling law in this case and, as a result, she was relieved from proving knowledge of the defect on the part of the defendants. She further argued that the small metal strip on the edge of the stairs and the painted wooden handrails rendered the stairway defective because they became slippery when wet, and that this defect caused her fall. Ms. Thompson submitted her own affidavit wherein she reiterated these assertions.

The trial court found that although La. C.C. art. 2695 might apply, Ms. Thompson nevertheless failed to prove the existence of a defect. Accordingly, the trial court granted summary judgment in favor of the defendants and dismissed Ms. Thompson’s claim. From this summary judgment, Ms. Thompson appeals.

ANALYSIS

On appeal, Ms. Thompson contends that La. C.C. art. 2695 is the applicable law while defendants maintain that La. C.C. art. 2317.1 is controlling. At the time of the accident, La. C.C. art. 2695 provided as follows:

The lessor guarantees the lessee against all the vices and defects of the thing, which may prevent its being used even in case it should appear he knew nothing of the existence of such vices and defects, at the time the lease was made, and even if they have arisen since, provided they do not arise from the fault of the lessee; and if any loss should result to the lessee from the vices and defects, the lessor shall be bound to indemnify him for the same.

^Louisiana Civil Code art. 2317.1 stated, in pertinent part:

The owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care.

In determining the applicability of laws, it is axiomatic that the more specific governs over the more general. Liberty Mutual Insurance Co. v. Louisiana Insurance Rating Commission, 96-0793, p. 9 (La.App. 1 Cir. 2/14/97), 696 So.2d 1021, 1027, writs denied, 97-2069, 97-2062 (La.12/19/97), 706 So.2d 451, 452. At the pertinent time, Article 2695 was found in the section of the civil code entitled Of the Obligations and Rights of the Lessor, and governed specifically the rights between the lessor and the lessees. In contrast, articles 2317 and 2317.1 are located in the chapter of the civil code entitled Of Offenses and Quasi Offenses. Because Article 2695 more specifically addressed the situation, we agree with Ms. Thompson that it is applicable under these circumstances.

Louisiana Civil Code article 2695 imposed strict liability upon a lessor for damages to a lessee caused by vices and defects in the thing leased. Great American Surplus Lines Insurance Co. v. Bass, 486 So.2d 789, 792 (La.App. 1 Cir.), writ denied, 489 So.2d 245 (La.1986). In Barnes v. Riverwood Apartments Partnership, 38,331, pp. 5-8 (La.App. 2 Cir. 4/7/04), 870 So.2d 490, 494-95, writ denied, 2004-1145 (La.6/25/04), 876 So.2d 845 and Montecino v. Bunge Corp., Inc., 2004-875, p. 5 (La.App. 5 Cir. 2/15/05), 895 So.2d 603, 606-07, writ denied, 2005-0962 (La.6/17/05), 904 So.2d 704, the courts found that the strict liability imposed on a lessor by La. C.C. art. 2695 was unaffected by the 1996 enactment of La. |KC.C. art. 2317.1. We approve of the reasoning set forth in Barnes and likewise conclude that this article retained the concept of strict liability that was in no way affected by the 1996 tort reform legislation. Accordingly, we find the defendants’ assertions to the contrary to be without merit.

The sole distinguishing factor between negligence and strict liability is one of scienter. Clark v. Parish of St. Mary Gravity Drainage District # 3, 2001-1835, p. 5 (La.App. 1 Cir. 9/27/02), 846 So.2d 760, 763. While actual or constructive knowledge must be proven to establish negligence, it is not necessary to establish strict liability. See Lee v. Magnolia Garden Apartments, 96-1328, p. 13 (La.App. 1 Cir. 5/9/97), 694 So.2d 1142, 1150, writ denied, 97-1544 (La.9/26/97), 701 So.2d 990. However, as recognized by the trial court, even under La. C.C. art. 2695, a plaintiff was still required to prove that a defect exists and that the defect was the cause of the plaintiffs damages. Latham v. Aetna Casualty & Surety Co., 377 So.2d 350, 351 (La.1979); Martinez v. Coleman, 2000-1827, p. 7 (La.App. 5 Cir. 4/24/01) 786 So.2d 170, 173. A “defect” for the purposes of article 2695 has been defined as a dangerous condition reasonably expected to cause injury to a prudent person using ordinary care under the circumstances. Renfro v. South Coast Corp., 374 So.2d 122, 124 (La.App. 1 Cir.1979); Martinez, 2000-1827 at p. 7, 786 So.2d at 173.

In their motion for summary judgment, defendants asserted that Ms. Thompson lacked factual support to prove the existence of a defect. The trial court agreed. On appeal, Ms. Thompson maintains that the trial court erred in granting the motion for summary judgment because a genuine issue of material fact exists regarding the presence of a defect.

| Appellate courts review summary judgments de novo under the same criteria that govern the trial court’s determination of whether a summary judgment is appropriate. Duplantis v. Dillard’s Dept. Store, 2002-0852, p. 5 (La.App. 1 Cir. 5/9/03), 849 So.2d 675, 679, writ denied, 2003-1620 (La.10/10/03), 855 So.2d 350. A motion for summary judgment should only be granted if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). The initial burden of proof is on the moving party. However, on issues for which the moving party will not bear the burden of proof at trial, the moving party’s burden of proof on the motion is satisfied by pointing out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. La. C.C.P. art. 966(C)(2).

■ In an effort to produce factual support to oppose the defendants’ motion, Ms. Thompson submitted an affidavit wherein she basically averred that the steps were “constructed of pebbles or rocks that are within a metal casing” and that a “portion of the top outer edge of the steps” were of a “metal composition.” She maintained that it was raining when she descended the stairs; therefore, the stairs and handrails were wet. She claimed that the wet metal portion of the steps and the wet handrails constituted a defect that caused her to slip and fall. Defendants did not dispute the plaintiffs physical description of the stairway. Nor did they dispute that the stairs were wet from precipitation at the time of the accident. Thus, Ms. Thompson’s affidavit did not establish or add any factual information that was not already known in this case, and therefore did not establish any genuine issue of contested material fact. Accordingly, the only 17issue is whether, under the undisputed facts of this case, the stairs contained a defect that caused Ms. Thompson’s accident and subsequent injuries.

The existence of a defect may not be inferred solely from the fact that an accident occurred. Law v. State ex rel. Dept. of Transportation and Development, 2003-1925, p. 5 (La.App. 1 Cir. 11/17/04), 909 So.2d 1000, 1005, writs denied, 2004-3154, 2004-3224 (La.4/29/05), 901 So.2d 1062. To the contrary, a plaintiff is required to prove, by a preponderance of the evidence, that a defect existed and that the defect caused the plaintiffs damages. Latham, 377 So.2d at 351. Photographs of the stairs submitted by both parties show a rather diminutive metal strip that appears to serve as a casing for the aggregate that forms the actual steps. Thus, if Ms. Thompson were properly descending the stairs, it must be concluded that her steps would have primarily fallen on the aggregate with either little or none of her shoe contacting the small metal edge. In her opposition, Ms. Thompson admitted that the aggregate, which covered the vast majority of the step, created a rough, as opposed to a slick, surface.

According to the affidavit of Mr. Lober, no other tenants reported having an accident on any of the exterior stairways nor had any tenant made any complaints regarding the presence of a possible defect. Moreover, it is undisputed that the metal edge and the water on the stairs were clearly visible to Ms. Thompson. She submitted no proof that the stairs or the handrails were in violation of any codes or ordinances as she originally alleged in her petition or that the stairs were in any state of disrepair. Finally, she conceded that there was no other substance on the stairs and handrails except for the rainwater.

Considering all of these facts, we conclude that Ms. Thompson failed to establish that she would be able to satisfy her evidentiary burden of proof |sat trial on an essential element of her case, namely, that the stairs contained a defect. Accordingly, defendants were entitled to judgment as a matter of law.

CONCLUSION

For the foregoing reasons, the summary judgment rendered in favor of BKG Equities, Inc. and Travelers Indemnity Company is affirmed. Crystal Thompson is cast with all costs of this appeal.

AFFIRMED.

      . Based on the pleadings, it is unclear whether the lessor was BGK or Sable Chase Apartments Operating Associates, L.P., a wholly owned subsidiary of BGK. However, for purposes of its motion for summary judgment and this appeal, BGK does not dispute its classification as lessor.

      . Subsequent to the filing of this suit, Title IX, "Of Lease”, of Book III of the Civil Code was revised by Acts 2004, No. 821 eff. January 1, 2005. Former La. C.C. art. 2695 is a partial source for present La. C.C. arts. 2696 and 2697. All references in this opinion to La. C.C. art. 2695 refer to that article as it existed prior to the 2004 revision.

      . We recognize that, pursuant to La. R.S. 9:3221, the legislature has provided a lessor the ability to contract out of this liability; however, the application of this particular statute is not presently before this court.