author: STEVENSON, J.

text:
    Kenneth Nelson HEBERT, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-1261.
    District Court of Appeal of Florida, Fourth District.
    Sept. 12, 2007.

      Carey Haughwout, Public Defender, and Dea Abramschmitt, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for ap-pellee.
   On Motion for Rehearing/Clarification

STEVENSON, J.

Having considered the appellant’s “Motion for Rehearing/Clarification,” we agree that the opinion dated July 5, 2007, contains a scrivener’s error. We therefore withdraw our prior opinion and issue the following in its place.

Kenneth Hebert was tried by jury and found guilty of aggravated assault on a law enforcement officer with the intent to commit a felony, i.e., escape (count I), escape (count II), aggravated battery with a deadly weapon (count III), and resisting an officer with violence (count IV). While Hebert has raised a number of issues on appeal, we write to address only two — his claims that the trial court erred in denying his motion for judgment of acquittal directed to the charges of aggravated assault on a law enforcement officer with the intent to commit a felony (escape) and escape. We find merit in Hebert’s argument and thus reverse his convictions as to counts I and II.

Hebert and a man named Wesley Alan Shelton were domestic partners and shared a home. The charges against Hebert arose out of the events that unfolded following an unspecified dispute or argument between him and Shelton. When Shelton returned home the morning after the argument, Hebert attacked him and attempted to strangle him with a belt. Shelton fled and called police.

After knocking and speaking with a roommate of Hebert and Shelton, Deputy Minella entered the residence and saw Hebert standing in a hallway. The deputy saw Hebert holding what he believed to be a shotgun, told Hebert he was under arrest and instructed him to put down the gun. The deputy then fled the home. Next, the officer heard breaking glass and observed the butt of a rifle being used to break the glass out of a window in the home. The deputy kept shouting to Hebert that he was under arrest and to put the gun down. According to the deputy, rather than comply, Hebert exited the residence and pointed the gun at him. The officer fired two shots. Hebert fled into a nearby home that was under construction. The deputy continued to yell for Hebert to put down the gun.

Hebert exited the home and pointed the gun at the officer a second time. The deputy fired two more shots. Hebert ran and the chase continued. Hebert then raised his gun at the officer a third time. The deputy fired another shot. This time, the bullet grazed Hebert and he went down. The deputy handcuffed Hebert, discovering the gun was not a shotgun, but a BB gun. In a taped statement to police, Hebert conceded the officer had done nothing wrong and admitted hearing the officer instruct him to come out and to let the officer see his hands. Hebert also indicated he “believed” he heard the officer tell him he was under arrest.

The crime of “escape” is defined to include the circumstance when a “prisoner” “being transported to or from a place of confinement” “escapes ... from such confinement.” § 944.40, Fla. Stat. (2005). A “prisoner” is defined for purposes of chapter 944 to include “any person who is under ... criminal arrest and in the lawful custody of any law enforcement official.” § 944.02(6), Fla. Stat. (2005). Our supreme court has thus held the escape statute criminalizes an individual’s flight following an arrest, reasoning that “ ‘transportation to a place of confinement’ begins at the time the suspect is placed under arrest.’ ” State v. Ramsey, 475 So.2d 671, 672 (Fla.1985) (quoting Judge Orfinger’s special concurrence in State v. Iafornaro, 447 So.2d 961, 962 (Fla. 5th DCA 1984)); see also Kyser v. State, 533 So.2d 285, 287 (Fla.1988) (“For there to be an escape, there must first be a valid arrest.”). There can be no escape from a mere detention. See Pollen v. State, 834 So.2d 380, 382 (Fla. 3d DCA 2003).

The issue in this case is whether Hebert was ever placed under arrest. A valid arrest exists, such that an escape conviction can be sustained, when the following four factors are present:

“(1) A purpose or intention to effect an arrest under a real or pretended authority; (2) An actual or constructive seizure or detention of the person to be arrested by a person having present power to control the person arrested; (3) A communication by the arresting officer to the person whose arrest is sought, of an intention or purpose then and there to effect an arrest; and (4) An understanding by the person whose arrest is sought that it is the intention of the arresting officer then and there to arrest and detain him.”

Kyser, 533 So.2d at 287 (quoting Melton v. State, 75 So.2d 291, 294 (Fla.1954)); see also Sweeney v. State, 633 So.2d 66, 68 (Fla. 4th DCA 1994). Hebert cannot and does not claim that there was any insufficiency in the evidence regarding factors (1), (3), and (4). Deputy Minella, who was in uniform and driving a marked patrol car, testified he repeatedly told Hebert he was under arrest, to put the gun down, and to stop. Moreover, in his taped statement to police, Hebert acknowledged he was aware Minella was a police officer and that the officer told him he was under arrest.

What Hebert does argue is that there was insufficient evidence regarding that portion of factor two requiring “[a]n actual or constructive seizure or detention of the person to be arrested.” Hebert relies upon California v. Hodari D., 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991), wherein the Court stated:

An arrest requires either physical force ... or, where that is absent, submission to the assertion of authority. “Mere words will not constitute an arrest, while, on the other hand, no actual, physical touching is essential. The apparent inconsistency in the two parts of this statement is explained by the fact that an assertion of authority and purpose to arrest followed by submission of the arrestee constitutes an arrest. There can be no arrest without either touching or submission.”

499 U.S. at 626-27, 111 S.Ct. 1547 (quoting Perkins, The Law of Arrest, 25 Iowa L.Rev. 201, 206 (1940) (footnotes omitted)) (bolded emphasis added); see also Hollinger v. State, 620 So.2d 1242, 1243 (Fla.1993) (citing Hodari and stating “[a] person who flees from a show of authority has not been seized, while a person who remains in place and submissive to the show of authority has been seized”).

Hebert contends Hodari’s definition of an “arrest” applies in assessing whether a suspect has been “arrested” for the purpose of sustaining an escape conviction and the evidence failed to demonstrate either a touching or a submission to authority on his part. The State, on the other hand, insists (1) that Hodari’s holding that there can be no arrest absent a physical touching or submission on the part of the suspect was made in the Fourth Amendment context for the purpose of determining whether evidence was subject to suppression and (2) that Florida’s courts are not bound to apply Hodari’s holding in determining whether there has been an arrest for purposes of sustaining a conviction under the escape statute. Regardless of whether Florida’s courts are “bound” to apply Hodari in the escape context, this court has twice done so.

In Sweeney v. State, 633 So.2d 66 (Fla. 4th DCA 1994), after hearing the sound of glass breaking and an alarm, an officer found the defendant hiding under a stairwell. Without identifying himself as an officer, informing the defendant why he was being stopped or instructing the defendant that he was under arrest, the uniformed officer told the defendant to put his hands against the wall and, when he did not comply, pushed the defendant’s shoulder in an attempt to turn him. The defendant resisted, pushed away, pulled out a gun, and fired a shot. The officer chased the defendant and returned fire. As a consequence of these events, the defendant was charged with and convicted of a number of offenses, including attempted first degree felony murder and armed escape. The defendant insisted he was entitled to reversal as the evidence was insufficient to support the escape conviction. This court rejected the argument, citing Hodari and noting that the officer’s actions communicated an intent to arrest and that the officer physically touched the defendant. In Thomas v. State, 805 So.2d 102 (Fla. 4th DCA 2002), citing Hodari, this court upheld an escape conviction where the officer communicated an intent to arrest and the defendant acquiesced to this show of authority. See also Brown v. State, 623 So.2d 800 (Fla. 4th DCA 1993) (on reh’g) (reversing an escape conviction, without referencing Hodari, where the evidence established neither a physical touching of the defendant by the officer nor an acquiescence by the defendant to the attempted arrest).

We acknowledge the State’s reliance on Bey v. State, 355 So.2d 850 (Fla. 3d DCA 1978). There, police observed the defendant driving in a reckless manner and followed him to his home. The officer then instructed the defendant to provide his license. The defendant refused and headed towards the front door of his home. The officer told the defendant he was under arrest and instructed him to stop. The defendant said “you can’t arrest me” and ran into the house. The officer followed the defendant into the house and, thereafter, the defendant struck the officer. On appeal, the defendant insisted his conviction for resisting an officer with violence had to be reversed as the officer was not lawfully in his home and thus not in the execution of a lawful duty at the time of the striking. A statute, though, provided that if a person is “lawfully arrested” and escapes, the officer from whose custody he escapes may pursue and retake him without a warrant “ ‘at any time and in any place.’ ” Id. at 851 (quoting Florida Statutes section 901.22). The defendant insisted he was not under arrest at the time he fled into his home because the officer had not actually or constructively detained him. The court cited the Kyser factors, recognizing that element (2), i.e., “an actual or constructive seizure or detention,” was in question. Nonetheless, the panel held “[w]e are of the opinion that under modern day conditions, if all of the other elements of an arrest are present, when a police officer confronts and tells a person that he is under arrest and the officer has the present power to control the person, although he may not actually do so, a constructive arrest has been affected.” Id. at 852. The court thus affirmed the defendant’s conviction. Because Bey was decided prior to Hodari, we find it neither persuasive nor in direct conflict.

Returning to the case before us, we must conclude the evidence was insufficient to sustain an escape conviction as it demonstrated nothing more than a show of authority; the required physical touching or submission to the officer’s authority are absent. Hebert never submitted or acquiesced to the officer’s orders that he stop because he was under arrest and Hebert continued to flee up until the time he was shot. And, even if Deputy Minella’s striking Hebert with a bullet were characterized as a “physical touching,” such touching could not sustain an escape conviction because thereafter Hebert never attempted to escape or flee.

We thus reverse Hebert’s convictions for aggravated assault on a law enforcement officer with intent to commit a felony, i.e., an escape (count I), and escape (count II). With respect to count I, however, the evidence was sufficient to sustain a conviction for the lesser-included offense of assault on a law enforcement officer. See §§ 784.011, 784.07(2)(a), Fla. Stat. (2005). We remand with instructions that Hebert be adjudicated guilty of such offense and sentenced accordingly. We have considered the additional issues raised by Hebert and conclude such issues are either without merit or rendered moot by our disposition.

Reversed and Remanded.

POLEN and TAYLOR, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    In re Remy J. DONNELLY.
    No. 2007-OB-0669.
    Supreme Court of Louisiana.
    Aug. 20, 2007.
   ORDER

Considering the motion filed by petitioner, Remy J. Donnelly, seeking to withdraw his application for admission without prejudice,

IT IS HEREBY ORDERED that petitioner’s application for admission to the Louisiana Bar be and hereby is dismissed.

/s/ Pascal F, Calogero, Jr. Justice, Supreme Court of Louisiana


text:
    In re Vicki Kemp CRUSE.
    No. 2007-B-1529.
    Supreme Court of Louisiana.
    Aug. 22, 2007.
   ORDER

Considering the Joint Petition for Interim Suspension filed by respondent, Vicki Kemp Cruse, and the Office of Disciplinary Counsel,

IT IS ORDERED that Vicki Kemp Cruse, Louisiana Bar Roll number 19531, be and she hereby is suspended from the practice of law on an interim basis pursuant to Supreme Court Rule XIX, § 19.3, pending further orders of this court. Pursuant to Supreme Court Rule XIX, § 26(E), this order is effective immediately.

IT IS FURTHER ORDERED that the proceedings in 07-B-1529 be dismissed as moot.

/s/ Pascal F. Calogero, Jr. Justice, Supreme Court of Louisiana


text:
    In re Gregory D. LYONS.
    No. 2007-B-1729.
    Supreme Court of Louisiana.
    Aug. 23, 2007.
   ORDER

Considering the Joint Petition for Interim Suspension filed by respondent, Gregory D. Lyons, and the Office of Disciplinary Counsel,

IT IS ORDERED that Gregory D. Lyons, Louisiana Bar Roll number 9279, be and he hereby is suspended from the practice of law on an interim basis pursuant to Supreme Court Rule XIX, § 19.3, pending further orders of this court. Pursuant to Supreme Court Rule XIX, § 26(E), this order is effective immediately.

IT IS FURTHER ORDERED that pursuant to Supreme Court Rule XIX, § 27, the presiding chief judge in the Fourteenth Judicial District Court for the Parish of Calcasieu is ordered to appoint a lawyer or lawyers to conduct an inventory of respondent’s files and to take action as appropriate to protect the interests of respondent’s clients.

/s/Pascal F. Calogero, Jr. Justice, Supreme Court of Louisiana


text:
    In re J. Maurice THOMAS.
    No. 2007-B-1720.
    Supreme Court of Louisiana.
    Aug. 23, 2007.
   ORDER

Considering the record of these matters,

IT IS ORDERED that respondent, J. Maurice Thomas, Louisiana Bar Roll number 27307, be and he hereby is suspended from the practice of law on an interim basis pursuant to Supreme Court Rule XIX, § 19.2, pending further orders of this court. Pursuant to Supreme Court Rule XIX, § 26(E), this order is effective immediately.

IT IS FURTHER ORDERED that the matter bearing this court’s docket number 07-B-0994 be remanded to the disciplinary board for consolidation with the proceedings numbered 07-DB-029 as well as any pending investigative matters. After appropriate consideration of the consolidated matters, the board is directed to issue a single recommendation of discipline to this court encompassing all disciplinary matters involving respondent.

/s/ Pascal F. Calogero, Jr. Justice, Supreme Court of Louisiana


text:
    In re Appeal of DECISION OF the DISCIPLINARY BOARD NO. 06-PDB-017.
    No. 2007-OB-0102.
    Supreme Court of Louisiana.
    Aug. 24, 2007.
   ORDER

On the showing made, we are unable to determine whether the disciplinary board acted arbitrarily, capriciously or unreasonably in dismissing the complaint. Supreme Court Rule XIX, § 30(C). However, given the allegations made by the complainant, we believe the disciplinary board erred in not directing that the matter be investigated further pursuant to Supreme Court Rule XIX, § 30(A). Accordingly, this matter is remanded to the Office of Disciplinary Counsel to conduct further investigation pursuant to Supreme Court Rule XIX, § 11(B). During its investigation, the Office of Disciplinary Counsel should take additional evidence, with particular emphasis on whether respondent engaged in commingling and/or conversion of client funds.

/s/ Pascal F. Calogero, Jr. Justice, Supreme Court of Louisiana


text:
    In re Appeal of DECISION OF the DISCIPLINARY BOARD NO. 06-PDB-062.
    No. 2007-OB-0491.
    Supreme Court of Louisiana.
    Aug. 24, 2007.
   ORDER

On the showing made, we are unable to determine whether the disciplinary board acted arbitrarily, capriciously or unreasonably in dismissing the complaint. Supreme Court Rule XIX, § 30(C). However, given the allegations made by the complainant, we believe the disciplinary board erred in not directing that the matter be investigated further pursuant to Supreme Court Rule XIX, § 30(A). Accordingly, this matter is remanded to the Office of Disciplinary Counsel to conduct further investigation pursuant to Supreme Court Rule XIX, § 11(B). In its investigation, the Office of Disciplinary Counsel should review the medical records provided by complainant, as well as any other relevant evidence, before making a determination on the merits of the complaint.

/s/ Pascal F. Calogero, Jr. Justice, Supreme Court of Louisiana


author: BROWN, Chief Judge. SEXTON, J. (Pro Tempore), DREW, J., DREW, J. BROWN, Chief Judge, CARAWAY, J., SEXTON, J., Pro Tempore,

text:
    The NEWMAN MARCHIVE PARTNERSHIP, INC., Plaintiff-Appellant v. CITY OF SHREVEPORT, Defendant-Appellee.
    No. 42,073-CA.
    Court of Appeal of Louisiana, Second Circuit.
    March 21, 2007.
    Opinion on Rehearing Aug. 22, 2007.

      Wiener, Weiss, & Madison, by John M. Madison, Jr., M. Allyn Stroud, Shreveport, for Appellant.
    Mayer, Smith, & Roberts, by Caldwell Roberts, Weems, Schimpf, Gilsoul, Haines, Landry, & Carmouche, by Brian D. Landry, Kenneth Haines, Carey Schimpf, Shreveport, for Appellee.
    Before BROWN, DREW, and SEXTON (Pro Tempore), JJ.
   BROWN, Chief Judge.

| plaintiff, Newman Marchive Partnership, Inc. (“Newman”), attempted via petition for writ of mandamus to force defendant, the City of Shreveport (“the City”), to pay a money judgment in its favor. Newman now appeals from the trial court’s dismissal of its petition. For the reasons set forth below, we affirm the judgment of the trial court.

Facts

Newman successfully sued the City for breach of contract and was awarded damages by a jury on July 16, 2004. This judgment was amended in part and affirmed in part by this court on February 24, 2006. Specifically, this court found that Newman was entitled to a principal amount of $263,674.10, together with legal interest from the date of judicial demand, February 11, 2002, until paid. See Newman Marchive Partnership, Inc. v. City of Shreveport, 40,512 (La.App.2d Cir.02/24/06), 923 So.2d 852, writ denied, 06-1040 (La.06/23/06), 930 So.2d 983.

Payment by the City, however, was not forthcoming, so on September 19, 2006, Newman filed a petition for writ of mandamus, seeking to compel the City, through its chief executive officer, then Mayor Keith Hightower, to pay the judgment. The trial court issued an alternative writ of mandamus directing the City to pay the full amount of principal plus interest due no later than September 22, 2006, or to show cause on September 25, 2006, why the writ should not be made peremptory.

On September 22, 2006, the City made an unconditional tender to Newman of the principal amount of the judgment. The City, however, ^refused to pay the legal interest due, which was $70,301.66. The City also filed exceptions of no cause of action, unauthorized use of summary proceedings, and improper cumulation. An opposition was filed by Newman, and the exceptions were denied by the trial court at the beginning of the hearing on September 25, 2006. Following the testimony of Mayor Hightower and Tom Cody, the City’s risk manager, the trial court found that, “based [upon] the evidence in this case at this time I find that there is an element of discretion remaining in this case and that mandamus is not appropriate at this time.” Judgment recalling the alternative writ of mandamus and dismissing plaintiffs petition for writ of mandamus was rendered on the date of the hearing and signed on September 28, 2006. It is from this judgment that Newman has appealed.

Discussion

Mandamus is a writ directing a public officer to perform a ministerial duty required by law. La. C.C.P. arts. 3861 and 3863. A writ of mandamus is an extraordinary remedy and may be issued in all cases where the law provides no relief by ordinary means or where delay in obtaining ordinary relief may cause injustice. La. C.C.P. art. 3862. If a public officer is vested with any amount of discretion, mandamus will not lie. Vogt v. Board of Commissioners of the Orleans Levee District, 01-0089 (La.App. 4th Cir.03/27/02), 814 So.2d 648, writ granted, 02-1388 (La.09/20/02), 825 So.2d 1153, writ denied, 02-1312 (La.09/20/02), 825 So.2d 1169; Landry v. City of Erath, 628 So.2d 1178 (La.App. 3d Cir.1993), writ denied, 94-0275 (La.03/25/94), 635 So.2d 235.

Louisiana Constitution Article XII, § 10, relative to suits against the state and its political subdivisions, provides:

(A) No Immunity in Contract and Tort. Neither the state, a state agency, nor a political subdivision shall be immune ■from suit and liability in contract or for injury to person or property.
(B) Waiver in Other Suits. The legislature may authorize other suits against the state, a state agency, or a political subdivision. A measure authorizing suit shall waive immunity from suit and liability.
(C) Limitations; Procedure: Judgments. Notwithstanding Paragraph (A) or (B) or any other provision of this constitution, the legislature by law may limit or provide for the extent of liability of the state, a state agency, or a political subdivision in all cases, including the circumstances giving rise to liability and the kinds and amounts of recoverable damages. It shall provide a procedure for suits against the state, a state agency, or a political subdivision and provide for the effect of a judgment, but no public property or public funds shall be subject to seizure. The legislature may provide that such limitations, procedures, and effects of judgments shall be applicable to existing as well as future claims. No judgment against the state, a state agency, or a political subdivision shall be exigible, payable, or paid except from funds appropriated therefor by the legislature or by the political subdivision against which the judgment is rendered. (Emphasis added).

Pursuant to the authorization set forth in La. Const. Art. XII, § 10(C), the legislature enacted La. R.S. 13:5109, which provides in part:

(B)(2) Any judgment rendered in any suit filed against the state, a state agency, or a political subdivision, or any compromise reached in favor of the plaintiff or plaintiffs in any such suit shall be exigible, payable, and paid only out of funds appropriated for that purpose by the legislature, if the suit was filed against the state or a state agency, or out of funds appropriated for that purpose by the named political subdivision, if the suit was filed against a political subdivision. (Emphasis added).

A judgment creditor of a political subdivision of the state has no way to collect its judgment except by appropriation. Vogt, supra; Baudoin v. Acadia Parish Police Jury, 96-1288 (La.App. 3d Cir.09/17/97), 702 So.2d 715, writ denied, 97-2546 (La.12/19/97), 706 So.2d 458. Appropriation of funds is discretionary and not ministerial, and mandamus will not lie to compel payment of a judgment by a political subdivision. Vogt, supra; De Laureal Engineers, Inc. v. St. Charles Parish Police Jury, 406 So.2d 770 (La.App. 4th Cir.1981), writ denied, 410 So.2d 758 (La.1982).

Newman does not dispute that the City’s decision of whether to appropriate funds for the satisfaction of a judgment or claim against the City is discretionary. See Vogt, supra; Jones v. Traylor, 94-2520 (La.App. 4th Cir.08/23/95), 660 So.2d 933, writ denied sub nom. Rome v. Stephens, 95-2320 (La.12/15/95), 664 So.2d 453; Landry, supra. However, plaintiff takes the position that what it is seeking is not to compel the appropriation of funds to pay its judgment, but the payment of its judgment from funds that have already been appropriated to the City’s Risk Retention Fund.

Newman’s argument is not supported by Louisiana statutory law or jurisprudential precedent. The evidence presented to the trial court was that the funds placed in the City’s Risk Retention Fund were not specifically appropriated to pay the Newman judgment. Instead, this fund is a pool of money to pay any and all judgments, settlements, and risks for which the City may be held accountable. At the time that the Newman judgment became final, there was over $15 million in the City’s Risk Retention Fund. None of this money was placed into or appropriated to the fund with the express purpose of satisfying the Newman judgment.

|fiLa. R.S. 13:5109(B)(2) is phrased in the singular, not plural. What is envisioned by this provision is that whenever a judgment is rendered against the state, a state agency, or, as in the instant case, a political subdivision, in favor of the plaintiff in such suit, such a judgment is only exigi-ble, payable, or paid out of funds appropriated for that purpose, i.e., money set aside specifically to satisfy that particular judgment, by the legislature (if the defendant is the state or a state agency) or the political subdivision named in the suit. As noted above, there was no appropriation specifically made for the purpose of satisfying the Newman judgment. Instead, the City’s Risk Retention Fund contains money to pay any and all judgments, settlements, and risks, as determined by the City’s risk management committee. Obviously in this case, the committee decided to pay the principal amount of the judgment only. As provided by the supreme court in Hoag v. State of Louisiana, 04-0857 (La.12/01/04), 889 So.2d 1019, 1024-1025:

The act which plaintiffs seek court intervention to accomplish is not ministerial because by its very nature, the act of appropriation is discretionary. In fact, the very act of appropriating funds is an integral discretionary function of the legislative branch of our government. The Louisiana Constitution delineates the parameters of each branch of government. Admittedly, there is some inevitable overlap of the functions and each branch of government must strive to maintain the separation of powers by not encroaching upon the power of the others. Consequently, the inherent powers of the judiciary should be used sparingly and only to the extent necessary to insure judicial independence and integrity. Konrad v. Jefferson Parish Council, 520 So.2d 393, 397 (La.1988). Although we recognize that plaintiffs are entitled to payment of the judgment, a writ of mandamus directing the legislature to appropriate funds is an impermissible usurpation of legislative power by the judiciary.

| (¡While this court recognizes and sympathizes with plaintiffs plight in getting its judgment against the City satisfied, we are without constitutional or statutory authority to compel the City to pay the judgment rendered against it. The constitutional waiver of sovereign immunity, together with the lack of legislation enabling enforcement, provides Newman with a right without a remedy. The remedy to this anomaly, however, is in the hands of the legislature, not the judiciary. To hold otherwise would create a separation of powers issue and have grave constitutional implications. See Landry, supra.

Conclusion

For the foregoing reasons, the trial court’s judgment is affirmed. Costs of this appeal are assessed to plaintiff, Newman Marchive Partnership, Inc. AFFIRMED.

SEXTON, J., (Pro Tempore), concurs and assigns reasons.

DREW, J., dissents with written reasons.

SEXTON, J. (Pro Tempore),

concurs.

11 This case presents the intriguing res nova question of whether the chief executive of a political subdivision of the State (in this case, the Mayor) has the discretion to order only partial payment of a final judgment out of funds generally appropriated to pay final judgments and other pending claims. It should be noted that these appropriated funds were not specifically appropriated to pay this particular judgment. Impecunity is not an issue as the City has appropriated $15 million for the general purpose of paying judgments and claims.

I do not accept the Mayor’s position that the decision not to pay the interest was made by the Risk Management Committee. It is clear from the testimony of Mr. Tom Cody, Risk Manager for the City of Shreveport, that the question of whether to pay this judgment at all was not taken before the Risk Management Committee until approximately one week before the writ of mandamus was filed herein. A review of the previous litigation, Newman Marchive Partnership, Inc. v. City of Shreveport, 40,512 (La.App.2d Cir.2/24/06), 923 So.2d 852, writ denied 06-1040 (La.6/23/06), 930 So.2d 983, causes me to believe that the Mayor made the political decision not to pay the interest on this judgment and the Risk Management Committee simply ratified that decision. Furthermore, I observe that Mr. Cody’s effort to find shelter behind City Ordinances § 26-171, et seq., creating the Retained Risk Fund and Risk Management Committee is to no avail. While [2the fund is established to pay both claims and judgments, I read Sec. 174 dealing with the Risk Management Committee to apply only to the settlement of claims. I further observe that this appears to be the only judgment against the City, at least since Mr. Cody became the Risk Manager for the City in September 1994, that the City has not paid a final judgment in full, including legal interest.

The jurisprudence is replete with cases seeking a mandamus to compel a governmental body to appropriate funds to pay a judgment. Several of these cases are cited in Judge Brown’s opinion. The instant case is the only circumstance of which I am aware where the plaintiff has sought to be paid from funds already appropriated to pay claims and judgments; but there being no specific appropriation to pay this particular judgment.

Thus, the legal issue is what does “appropriated for that purpose” mean in R.S. 13:5109(B)(2). Is “that purpose” the payment of judgments generally or does “that purpose” mean that specific judgment. It is axiomatic that mandamus is a drastic remedy and will not lie if there is any discretion.

My reading comports with Judge Brown’s that for mandamus to lie, the appropriation must be for the payment of that specific judgment. I concur that the Mayor has the authority, absent a specific expropriation or ordinance by the City Council, to pay in whole or in part any judgment against the City. This problem requires a legislative solution rather than judicial intervention.

|sIn the final analysis, I cannot improve on what the third circuit said in this respect in Baudoin v. Acadia Parish Police Jury, 96-1288 (La.App. 3d Cir.9/17/97), 702 So.2d 715 at 720, writ denied, 97-2546 (La.12/19/97), 706 So.2d 458. The reader should simply substitute the name City for Police Jury in the expression below:

The unfortunate thing ... is that the police jury can be arbitrary and get away with it. It is the nature of separation of powers that there is a line we cannot cross. We respect the fact that the judiciary cannot cross the line and make the legislature make the police jury pay. We will not cross that line and venture into a world that is not our business. That is the police jury’s business and we respect that. We want to see justice done: that is our business. We have rendered a judgment against the police jury. That is our business and it is a final judgment. The police jury defended the law suit that resulted in the judgment, and undoubtedly disagreed with our decision. Disagreeing with it is one thing; not respecting it is another. If the police jury is refusing to pay this judgment arbitrarily, it is not showing respect for our judgment. If the Golden Rule applies in separation of powers, the police jury is not playing by the Rule if it disrespects our judgment arbitrarily. It owes this judgment. If it lacks the money to pay this debt, that’s something else. But if it has the money or can reasonably acquire the money to pay, it should do so and thereby set an example [by doing] like most people do and are morally required to do — it should pay its debts.

SEXTON, J., (Pro Tempore), concurs and assigns reasons.

DREW, J., dissents with written reasons.

DREW, J.,

dissenting.

I respectfully dissent.

La. R.S. 13:5109(B)(2) reads differently (less limiting) to me, in that I believe the funds have already been appropriated to pay this and any other judgment. The City of Shreveport, a judgment debtor, has a $15,000,000 fund set aside to pay judgments. This is a final judgment, and Shreveport needs to respect this judgment and pay what it owes.

What the city administration is doing here definitely does not pass the sniff test, and it is not in the long-term best interest of the city.

ON REHEARING

Before BROWN, CARAWAY, DREW, MOORE and SEXTON (Pro Tempore), JJ.

DREW, J.

|! This case of long-standing has been in the courts for five years and before this court on two previous occasions. The litigation centers around monies due by the City of Shreveport for services rendered under an architectural contract. We have set out the factual history in our previous opinions.

Newman Marchive Partnership, Inc. (“Newman”), a judgment creditor of the City of Shreveport, filed this instant litigation seeking a Writ of Mandamus requiring the Mayor of Shreveport to order the City to pay Newman the remaining amount due under the final judgment.

The City, through its Mayor at the time, made an unqualified tender of $263,674.10 on September 22, 2006, for application to the payment of this judgment, categorizing the payment as “principal,” with the expressed intention of not paying any accrued interest on the final judgment. We are not constrained by the City’s characterization of the payment as “principal,” as La. C.C. art. 1866 provides for the attribution of partial payment on a debt which bears interest, such as this judgment.

[■¿The trial court refused to grant the Writ of Mandamus ordering the City to pay the remainder of the judgment. Our original three-judge panel rendered an opinion on the mandamus which affirmed the trial court, with one judge concurring, and another judge dissenting. Rehearing was requested and granted, with the case being re-briefed and re-argued before a five-judge panel.

We now reverse the ruling of the trial court, grant the application of plaintiff for the Writ of Mandamus, make the writ peremptory, and require the Honorable Cedric Glover, present Mayor of the City of Shreveport, to order the City to pay:

• the remainder of this judgment in full, which includes ail accrued judicial interest, and
• all costs of the district court and this court relative to the mandamus.

During the long history of this suit in the trial court, and until well after the filing of this suit for mandamus, ample funds in the millions of dollars were available from which to pay legal claims and judgments. These sums were deposited into a “retained risk fund.” The funds were unattached and were at all pertinent times available to pay this entire judgment, including interest and all costs of court.

We reject the City’s argument that each judgment requires a separate appropriation by which to pay a particular judgment. This position is belied by the City’s purported partial payment of “principal” without any specific appropriation. The funds paid came from the retained risk fund, which was set aside to pay claims and judgments. La. C.C. art.2000 recognizes thatlslegal interest, the time value of money, is part of the damages for the delay in payment of sums justly due.

We find that mandamus lies in this situation because:

• the City was lawfully cast in judgment for this indebtedness, including the accrued interest at that time;
• the City elected to pay and did pay part of the judgment from its appropriated retained risk fund;
• the original judgment was based on the failure to pay sums of money; and
• at all relevant times, the City had sufficient funds in its retained risk fund by which to pay the remainder of this legal obligation.

Well after Newman filed this suit for mandamus, the City enacted ordinances setting a city policy of not paying interest on any judgment. These recent actions of the City have no bearing on this instant dispute, because the rights of all parties were locked in by the facts, constitutional articles, state statutes, and local ordinances in effect on the date Newman filed its mandamus action. We pretermit any comments concerning the prospective effect or lack of effect of the recent amendments to the City’s ordinances. See State Through Dept. of Transp. and Development v. Estate of Davis, 572 So.2d 39 (La.1990).

At issue is the proper interpretation of La. R.S. 13:5109, relative to payment of judgments against a political subdivision. The statute states, with our emphasis:

A. In any suit filed against the state of Louisiana, a state officer, a state agency, a local public official or a political subdivision, the defendant, or the proper representative thereof, upon the advice and with the concurrence of the attorney general, district attorney, parish attorney, city attorney, or other Lproper official, as the case may be, may compromise and settle the claims presented in any such suit.
B. (1) If a judgment is rendered by a trial or appellate court or the supreme court against the state or a state agency in the amount of five hundred thousand dollars or more, and the attorney general is not an attorney of record in the suit, the clerk of the court shall also mail a notice of judgment to the attorney general, through the chief of the civil division, in accordance with Code of Civil Procedure Articles 1913, 2166, or 2167, as appropriate.
(2) Any judgment rendered in any suit filed against the state, a state agency, or a political subdivision, or any compromise reached in favor of the plaintiff or plaintiffs in any such suit shall be exigible, payable, and paid only out of funds appropriated for that purpose by the legislature, if the suit was filed against the state or a state agency, or out of funds appropriated for that purpose by the named political subdivision, if the suit was filed against a political subdivision.
C.The governing authority of a parish or municipality, upon the advice and the concurrence of the district attorney, parish attorney, or city attorney of that parish or municipality or proper official as the case may be, may compromise or settle any claim against that parish or municipality without the necessity for the filing of a suit against the parish or municipality in the matter. Any such compromise settlement shall be exigible, payable, and paid only out of funds appropriated for that purpose by the governing authority of that parish or municipality. No claim in excess of ten thousand dollars may be compromised or settled as provided herein before ten days have elapsed after the publication of such proposed compromise or settlement in the official journal of the appropriate political subdivision.

We read La. R.S. 13:5109(B)(2) to allow mandamus to issue under these facts. The City appropriated up to $15,000,000.00 into a special account from which to pay legal settlements and judgments. These funds were appropriated to pay final judgments, and Newman had and has a final judgment.

Our great country has a system of checks and balances whereby only the legislative branch (e.g., a city council) can enact laws. Only the executive |Rbranch {e.g., a mayor and police) can enforce the law. Our founding fathers set up an independent judiciary to interpret laws, and calmly resolve disputes in a courtroom. The judicial function is to assess the proven facts, apply the pertinent laws, and make a fair, just, and considered decision based thereon. At the time this mandamus action was filed and tried, the legislative branch of city government had appropriated all the money needed to pay this judgment, but for whatever reason the executive branch refused to pay. Therefore, the judicial branch, through mandamus, may order that the legislative mandate be effectuated.

In State ex rel. Carondelet Canal & Navigation Co. v. City of New Orleans, 30 La. Ann. 129 (La.1878), a judgment was obtained against the City of New Orleans and, in accordance with law, registered with the city. Once a judgment was so registered, it became the city’s duty to pay it without special appropriation provided there remained enough money in the budget that was designated for that purpose. If an insufficient amount remained in the designated fund, the city had the option of paying the judgment from money set aside in the budget for contingent expenses. If this option was not exercised, the city was required to pay all judgments in the order in which they were registered out of money set aside for that purpose in the following year’s budget. Finding that the city had the duty to provide for payment of all the registered judgments in the next annual budget, the court allowed the judgment creditor to proceed by mandamus.

| fiSee also Barrett v. City of New Orleans, 33 La. Ann. 542 (La.1881), which is in accord with Carondelet Canal. We note that Carondelet Canal also provided a mechanism by which to replace in mandamus litigation, the public official to whom the mandamus is directed. Consequently, since the Honorable Keith Hightower is no longer the mayor, his place in this mandamus litigation is now taken by the Honorable Cedric Glover, the present Mayor of Shreveport.

The Honorable Mayor Glover is entitled to a specific directive from this court as to what he should do and when to do it. We shall attempt to comply with this entitlement.

After two runs through the appellate maze, it was established that the total dollar amount owed as of the date of judicial demand (February 11, 2002) was $263,674.10. This amount is not in dispute.

On September 22, 2006, Mayor Hightower did pay exactly this amount, but by that time $70,206.33 of judicial interest had accrued, making a total due of $333,880.43 as of the date of partial payment. The effect of Mayor Hightower’s unconditional tender of $263,674.10 on that date had the legal effect of paying all accrued judicial interest to that date, and some of the principal, leaving the City $70,206.33 short in paying off this lawful debt. To this $70,206.33 must now be added judicial interest from |7September 22, 2006, until the debt is paid in full. We respectfully issue a Writ of Mandamus ordering Honorable Mayor Cedric Glover to cause to be paid from city funds to Newman Marchive Partnership, Inc., within 30 days of the finality of this judgment:

• $70,206.33 (the shortfall as of 9/22/06, the date of partial payment);
• accrued judicial interest thereon in the amount of $5,725.43, representing judicial interest from September 22, 2006, to August 17, 2007;
• additional per diem judicial interest of $18.27 for each day after August 17, 2007, until payment is made in full; and
• all district and appellate costs of court attributable to the mandamus, which we set in the amount of $838.06.

The separation of powers argument here, as we see it, actually tilts towards the architects and not the City — our system of government embodies the social contract that judgments of courts are to be respected.

To affirm the learned trial court’s denial of mandamus will put us on a slippery slope, with unseen consequences down the road, raising these questions:

• What is to keep a city from declaring that it will not pay the principal on any judgment?
Is* What incentive will a city’s attorney ever have to expeditiously move a case through the judicial system, reasoning that it will be better to pay the principal on a judgment in 2037 dollars, rather than 2007 dollars?
• Will this position adversely affect the City’s bond rating?

No branch of government can arbitrarily declare that it will not obey the law. The $15 million was appropriated, and this judgment, under these facts, must be paid.

We reverse the decision of the learned trial court, and with all respect, order that the Honorable Cedric Glover, Mayor of the City of Shreveport, pay, within 30 days of the finality of this judgment, the remainder of this judgment in full, from funds of the City of Shreveport, including all additional judicial interest accruing since the City’s partial payment, together with court costs generated relative to this mandamus proceeding, in the amount of $838.06, all as outlined and calculated hereinbefore.

The City of Shreveport is certainly entitled to a credit for any costs of court previously paid by the City relative to the mandamus litigation.

DECREE

For the reasons expressed, it is ordered, adjudged, and decreed that the trial court’s denial of the application for writ of mandamus is reversed.

It is further ordered, adjudged and decreed that a peremptory Writ of Mandamus issue, ordering that the Honorable Cedric Glover, Mayor of the City of Shreveport, within 30 days of the finality of this judgment, pay the remainder of this judgment in full, from funds of the City of Shreveport, including all additional judicial interest accruing since the City’s partial 19tender, together with all court costs generated relative to this mandamus proceeding, which are fixed in the amount of $838.06.

BROWN, C.J., dissents with written reasons.

CARAWAY, J., concurs in part and dissents in part with'written reasons.

SEXTON, J., Pro Tempore, concurs in the result and assigns reasons.

BROWN, Chief Judge,

Dissenting.

|J reurge the rationale set forth in the original opinion which affirmed the trial court’s judgment. I would add that the new majority opinion on rehearing ignores the constitution and states that “[Alt issue is the proper interpretation of La. R.S. 13:5109.” To the contrary, at issue is Article XII, Section 10 of the Louisiana Constitution of 1974. Section 10(A) provides that neither the state, a state agency, nor a political subdivision shall be immune from actions “in contract or for injury to person or property.” This broad expansion of the rig’ht to sue was offset by Section 10(C)’s limitation on the ability to enforce a judgment against the state, a state agency, or a political subdivision. This provision clearly states that “no public property or public funds shall be subject to seizure.” The clear public policy expressed in Section 10(C) is that such seizures could impede government activity necessary to protect the health, safety, or welfare of its citizens.

The Louisiana Constitution further states that the legislature “may limit or provide for the extent of liability” and “such limitations, procedures, and effects of judgments shall be applicable to existing as well as future claims.” (Emphasis added). In this case, the City has limited the effects of judgments to the payment of principal. Section 10(C) of the constitution also provides that no judgment (singular) shall be exigible, payable, or paid except from funds appropriated therefore (in this case) by the municipality.

The justification for the majority opinion on rehearing is that the City Council has appropriated funds for this debt and that the mayor simply refused to sign the check. This is a fallacious conclusion. First, the | ¡..“retention risk fund” is not an appropriation to pay this judgment; and, second, it was the City Council, not the mayor, that passed the amendment limiting the payment of existing as well as future claims to only principal amounts. The mayor never had (and does not have now) the authority to pay this judgment.

As far as the comments on separation of powers, I repeat what our supreme court said in Hoag v. State of Louisiana, 04-0857 (La.12/01/04), 889 So.2d 1019, 1024-1025:

The act which plaintiffs seek court intervention to accomplish is not ministerial because by its very nature, the act of appropriation is discretionary. In fact, the very act of appropriating funds is an integral discretionary function of the legislative branch of our government. The Louisiana Constitution delineates the parameters of each branch of government. Admittedly, there is some inevitable overlap of the functions and each branch of government must strive to maintain the separation of powers by not encroaching upon the power of the others. Consequently, the inherent powers of the judiciary should be used sparingly and only to the extent necessary to insure judicial independence and integrity. Konrad v. Jefferson Parish Council, 520 So.2d 393, 397 (La.1988). Although we recognize that plaintiffs are entitled to payment of the judgment, a writ of mandamus directing the legislature to appropriate funds is an impermissible usurpation of legislative power by the judiciary.

No matter what it is called, the act sanctioned by this court’s opinion constitutes a seizure of public funds. Louisiana’s constitution, while expanding the right to sue, clearly proscribes the seizure of public funds. This constitutional prohibition was founded on the belief that the potential harmful consequences of such a seizure were unacceptable.

I respectfully dissent from the majority opinion on rehearing.

CARAWAY, J.,

concurring in part and dissenting in part.

hi agree with the majority that the city council has appropriated more money than the $263,674.10 payment that has now been made toward the plaintiffs judgment against the City. However, I disagree that the amendment to the city ordinances that occurred after the trial of this case has no effect over a mandamus order that can be fashioned by this court.

I voted to grant rehearing in this matter on the strength of the city ordinances which had evidenced the appropriation of funds for “paying ... judgments against the City by third parties.” The funding of the City’s risk retention fund represented an appropriation for any judgment, including Newman’s judgment. Such appropriation removed from the mayor any executive discretion, making appropriate the issuance of a writ of mandamus ordering payment of the entirety of the judgment. Viewed in a different light, the mayor’s partial payment of $263,674.10 toward the judgment debt immediately before the trial of this mandamus was not an unauthorized expenditure of city funds divorced from any appropriation grant from the city council. The same legislative authority of the council that allowed that partial payment required full payment. Thus, the mayor’s parsing of payment of the judgment was clearly an arbitrary and capricious act by the executive and violative of the charge given to him by the council to pay “judgments against the City.”

1 .¿Since our earliest civil codes before statehood, our law has always been clear that Newman’s money judgment is a singular expression of the computation of “damages” that resulted because of the City’s breach of contract. See La. C.C. art.2000, and its source articles of the Louisiana Civil Code. Under our civil law theory, the measure of damages using an interest calculation represents reparation for the loss suffered by the creditor, and not a penalty imposed on the debtor. Trans-Global Alloy, Ltd. v. First National Bank of Jefferson Parish, 583 So.2d 443, 457 (La.1991). To refer to this reparation as legal interest or judicial interest is somewhat misleading, as though it is something extra tacked on by the judicial process. This is the damage caused by the City’s failure to perform and rests on the economic principle of the time value of money.

When Newman’s judgment was granted after the trial of the parties’ dispute, the money judgment represented all the economic “damages” which Newman suffered for the City’s failure to meet its contractual obligations through the date of judgment. On February 24, 2006, when this court amended the trial court’s initial judgment, the total money judgment which this court rendered for Newman’s “damages” was $321,839.52 in the eyes of Louisiana law. This court’s opinion expressing that amount as the sum of $263,674.10 and legal interest from February 11, 2002, the date of judicial demand, is no less the award of a single money judgment for $321,839.52 in damages as of February 24, 2006. Damages had been finally assessed and |3the interest calculation could be merged into a single judgment amount. Next time, we will look up the statute, do the math, and list one clear amount. The mayor’s misguided calculation recognized just the same that Newman was damaged, that the judicial process has identified Newman’s damages, and that the city council has appropriated funds for the payment of the judgment for damages. Yet, capriciously, the damages were not fully paid.

Accordingly, I would rule that at the time the mayor made payment to Newman for $263,674.10, payment should have been made for at least the total amount of the judgment for damages, $321,839.52, before any question of judicial interest arose. As to this amount, I agree with the majority that mandamus lies for the unpaid portion ($321,839.52 minus $263,674.10). However, the issue of interest that accrued after the February 24, 2006 judgment date presents a separate question in view of the existing appropriation by the council.

My partial dissent from the majority ruling concerns the effect of the city council amendment to the ordinances that occurred the day after the trial of this case in September 2006. The amendment purports to place a limit on the appropriation for the risk retention fund as follows:

It is further the policy of the city not to pay interest on judgments of Louisiana courts.

A mandamus order for payment must be aimed prospectively at specific appropriated funds that have been legislatively made available for payment. To that extent, the September 2006 amendment to the ordinance has prospective effect over the availability of these funds as appropriated Lmonies for which the ministerial duty for payment can be ordered by a court. The clear language of the ordinance says that the city council has not appropriated monies “to pay interest on judgments.” This legislative act limiting appropriation involves a policy choice that effects the overall economic operations of city government. While there may have been no economic justification for the City’s amendment to its appropriation, that question is for the council to decide and not a court. The Constitution allows the council to make no appropriation whatsoever for payment of any judgment against the City, and under such circumstances, no seizure of public property or writ of mandamus will avail the creditor in collection of a judgment. Accordingly, the city has not appropriated funds for payment of the interest on plaintiffs judgment which accrued after the date of the February 24, 2006 judgment. To the extent that the majority orders payment of that interest via mandamus, I respectfully dissent.

SEXTON, J., Pro Tempore,

concurs.

hThe city elected to pay this judgment from its general appropriation for judgments and claims. The “interest” on this particular judgment can also be said to be “damages” representing the time value of money, as this was an obligation of the city to pay money. La. C.C. art.2000. The city has sufficient funds appropriated to pay the entire judgment. The payment the city made just before the mandamus trial should be first imputed to interest. Wdiile the city may have wanted that payment to be “principal,” nothing in this record indicates that the plaintiff consented. La. C.C. art. 1866. Thus, I agree some of the “principal,” as well as the interest (or damages) on the remainder, is still owed by the city.

I consider the amendment to the city ordinance to be of no moment in this case. Interest is a substantive right and here, indeed, is damages. The effect of the amendment, if any, can only be on future cases. State Through Dept. of Transp. and Development v. Estate of Davis, 572 So.2d 39 (La.12/3/90).

While normally a specific appropriation is required for each judgment to be paid, and mandamus is not available to force an appropriation, I now am of the view that a specific appropriation is unnecessary in these limited circumstances and that mandamus will lie to compel payment of the remainder of the judgment.

      . This amount is the interest due from the date of judicial demand, February 11, 2002, until the date that the City paid the principal amount of the judgment, September 22, 2006.

      . The question of whether interest was due on the amount assessed against the City in the earlier Newman Marchive Partnership case was an issue therein. As that opinion pointed out, interest is appropriate because the judgment creditor has lost the use of funds to which he was legally entitled and had to sue to obtain.

      . The City paid the entirety of the Whitaker Construction judgment by its check, but was apparently reimbursed for some portion of the interest from other parties defendant.

        . See Newman Marchive Partnership, Inc. v. City of Shreveport, 41,460 (La.App.2d Cir. 11/1/06), 944 So.2d 703, writs denied, 2007-0060 (La.3/9/07), 949 So.2d 448, and 2007-0097 (La.3/9/07), 949 So.2d 452; Newman Marchive Partnership, Inc. v. City of Shreveport, 40,512 (La.App.2d Cir.2/24/06), 923 So.2d 852, writ denied, 2006-1040 (La.6/23/06), 930 So.2d 983.

      . Three days before the show-cause hearing on the application for mandamus.

      . La. C.C. art. 1866. Payment imputed to interest.
      An obligor of a debt that bears interest may not, without the obligee’s consent, impute a payment to principal when interest is due. A payment made on principal and interest must be imputed first to interest.

      . This same law, Act 5 of 1870, forbade the enforcement of judgments against New Orleans by execution.

      . We recognize that the Louisiana Constitutions in effect when the opinions in Carondelet Canal and Barrett were rendered, the Constitutions of 1868 and 1879 respectively, apparently did not contain provisions similar to that found in Article XII, § 10, of our present Constitution, which prohibit the seizure of public property or public funds.

      .All of the $70,206.33 is attributable to principal. Not a penny of the remaining sums due represents interest on interest.

      . See attached computation sheet, marked as Attachment “A,” which attachment is incorporated into this opinion. We have calculated the payoff through August 17, 2007, and have further computed the additional sum accruing daily ($18.27) after that date, until full payment is made.

      . Full payment as of August 17, 2007, would be, according to our calculations, $75,931.76 plus combined court costs of 838.06, totaling exactly $76,778.82. After August 17, 2007, daily interest of $18.27 must be added to this amount.

      .La. R.S. 13:5112 requires that costs be set in a sum certain when the party cast for costs is a public entity. The appellate costs for this portion of the appeal concerning the mandamus are $214.50. We categorize $623.56 as mandamus-related, district court costs.

      . The limitation of the last sentence of Article VII, Section 10(C) of our constitution prevents this judgment against the City from becoming “payable, or paid except from funds appropriated therefor ... by the political subdivision.” Once that appropriation has occurred and the constitutional limit satisfied, the executive/mayor may be ordered by mandamus to carry out the council’s appropriation for the judgment as a ministerial act.

      . Article 2000 is in Civil Code, Title IV dealing with conventional obligations, Chapter 8, Section 4, pertaining to "Damages.” It provides that "[w]hen the object of the performance is a sum of money, damages for delay in performance are measured by the interest on that sum from the time it is due.”


author: BELSOME, Judge. ARMSTRONG, C.J., CANNIZZARO, J.,

text:
    SYSTEMS ENGINEERING AND SECURITY, INC. (“SES”) v. SCIENCE & ENGINEERING ASSOCIATIONS, INC. (“SEA”), Apogen, Inc., and Robert Savoie.
    No. 2006-CA-0974.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 20, 2007.

      Michael R. Allweiss, Marynell L. Piglia, Lowe, Stein, Hoffman, Allweiss & Hauver, L.L.P., New Orleans, LA, for Systems Engineering and Security, Inc.
    Jeffrey A. Schwartz, Jackson Lewis, L.L.P., Atlanta, GA, for Robert Savoie.
    Ronald J. Sholes, Mark R. Beebe, Thomas E. Gottsegen, Lee C. Reid, Louis C. LaCour, Jr., Adams and Reese LLP, New Orleans, LA, for Science & Engineering Associates, Inc. And Apogen Technologies, Inc.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge CHARLES R. JONES, Judge DENNIS R. BAGNERIS SR., Judge LEON A. CANNIZZARO, JR., Judge ROLAND L. BELSOME).
   BELSOME, Judge.

11 This case involves two companies that bid for a government contract awarded by the General Service Administration (“GSA”) in 2000. The GSA is federal procurement agency charged with obtaining products and services for other federal agencies. The GSA regularly enters into contracts with private-sector businesses that are capable of providing necessary products and services.

In 2000, the GSA issued a Request for Quotation (“RFQ”) for a Blanket Purchase Agreement (“BPA”) to support the Navy’s Information Technology Center in New Orleans. The RFQ was restricted to small businesses. In August 2000, Science & Engineering Associates, Inc. (“SEA”) and Systems Engineering and Security, Inc. (“SES”) submitted proposals in response to the GSA’s RFQ. On August 31, 2000, the GSA awarded the BPA to SEA.

SES filed its petition on August 4, 2005 against Appellees, SEA, Apogen, Inc. (“Apogen”) , and Robert Savoie (“Mr. Sa-voie”). SES’s petition alleges that SEA and Mr. Savoie falsely represented that SEA was a small business in August 1 ⅞2000, when it submitted its proposal for and was awarded the BPA. SES further alleges that even after SEA had been awarded the BPA, Mr. Savoie repeatedly represented that SEA was a small business. SES contends that it was not until October 2004, that SES first learned of SEA’s misrepresentation to the GSA.

In January 2006, the Appellees filed an exception of no cause of action and an exception of prescription. The trial court initially granted the exception of no cause of action, which was reflected in a judgment rendered on April 25, 2006. Later the trial court issued a more detailed judgment granting SEA’s exception of no cause of action and dismissing SES’s claims with prejudice. The judgment was followed by reasons for judgment. SES appeals the trial court’s ruling.

SES asserts one assignment of error; the trial court erred in granting the Appel-lee’s exception of no cause of action and in dismissing SES’s claims. The question raised is whether the trial court applied the proper legal standard in granting the exception of no cause of action.

. When determining whether to sustain an exception of no cause of action, the four corners of the petition bind the trial court. See Doe v. Jo Ellen Smith Medical Foundation d/b/a Jo Ellen Smith Medical Center and Jo Ellen Smith Psychiatric Center, 2005-0653 (La.App. 4 Cir. 7/13/05), 913 So.2d 140; Z.U. Azhar Clinic v. Rafiq, 2005-0167 (La.App. 4 Cir. 7/6/05), 913 So.2d 135. The facts alleged in the petition must be considered true for purposes of deciding whether the law provides a remedy for the plaintiff if the facts are proven at trial. Bibbins v. City of New Orleans, 2002-1510 (La.App. 4 Cir. 5/21/03), 848 So.2d 686. Further, no evidence |amay be introduced at any time to support or controvert the objection that the petition fails to state a cause of action. La.Code Civ. Proc. art. 931. On appeal, the trial court’s ruling sustaining an exception of no cause of action is reviewed de novo by this court. City of New Orleans v. Board of Commissioners of Orleans Levee Dist., 93-0690, pp. 47-49 (La.7/5/1994), 640 So.2d 237, 253.

SES’s petition sets forth claims for intentional/fraudulent misrepresentation and negligent misrepresentation, as well as claims for oblique and revocatory actions. This Court recognizes that, when properly pled, these causes of actions are viable theories of recovery under Louisiana State law.

To succeed in a claim for intentional/fraudulent misrepresentations, the petition must contain allegations of: “(1) a misrepresentation of material fact, (2) made with the intent to deceive, (3) causing justifiable reliance with resulting injury.” Goodman v. Dell Publishing Co., 1995 WL 428602 (E.D.La.1995). In support of SES’s intentional/fraudulent misrepresentation claim, the petition states that SEA through its president, Mr. Savoie, knowingly misrepresented that it was a small business to the GSA in order to obtain the BPA. It is further alleged that Mr. Savoie’s false representations were relied upon by both the GSA and SES, which ultimately resulted in the contract being awarded to SEA. Certainly, all of the elements necessary for that theory of recovery are alleged within the petition, Whether SES can prove such a claim against the Appellees is not an issue to be considered when determining if an exception of no cause of action should be sustained.

We give the same consideration to SES’s claim of negligent misrepresentation. In Kadlec Medical Center v. Lakeview Anesthesia Assoc., 2005 WL 1309153 (E.D.La.2005), the court set forth the required elements necessary to establish a claim of negligent misrepresentation: (1) the defendant, in the course of its business or other matters in which it had pecuniary interest, supplied false information, (2) the defendant had a legal duty to supply correct information to the plaintiff, (3) the defendant breached its duty, which can be breached by omission as well as by affirmative misrepresentation, and (4) the plaintiff suffered damages or pecuniary loss as a result of the its justifiable reliance upon the omission or affirmative misrepresentation. SES reasserts its allegations of reliance on Mr. Savoie’s misrepresentations of SEA’s size status throughout the bid process, which caused the contract to be given to SEA rather than to SES. We find that the trial court went outside the scope of an exception of no cause of action in holding that “SES cannot maintain a misrepresentation claim because SEA did not owe a duty SEA.” SES’s allegations of negligent misrepresentation are sufficient to overcome an exception of no cause of action.

Lastly, the trial court addressed SES’s claims for revocatory and oblique actions. Louisiana Civil Code articles 2036 and 2044 establish those actions. Louisiana state law provides an obligee with certain rights against obligors that cause or increase the obligors insolvency. SES’s petition alleges that “[o]n information and belief, SEA made distributions to Apogen which caused or contributed to SEA’s insolvency such that SES as a creditor may revoke those distributions.” The petition also claims that Mr. Savoie’s actions were a cause of SEA’s insolvency, for which it would have a claim. Once again our focus is limited to the sufficiency of the allegations within the petition, which we must consider to be true. Thus, we find that a cause of action has been stated for those actions.

IsFor the reasons discussed we find that SES has competently pled viable causes of action under Louisiana state law. Thus, we are compelled to reverse the trial court’s granting of Appellees’ exception of no cause of action. Accordingly, this matter is remanded for further proceedings.

REVERSED AND REMANDED

ARMSTRONG, C.J., and CANNIZZARO, J., Dissent with Reasons.

ARMSTRONG, C.J.,

Dissenting.

I respectfully dissent.

In 2000, SEA represented to the GSA that it was “small” in the process of bidding on a Blanket Purchase Agreement to support the Navy’s Information Technology Center in New Orleans. SES alleges that this was a misrepresentation.

In 1998 the General Service Administration (“GSA”) awarded a Multiple Award Schedule (“MAS”) contract to SEA. SEA certified that it was a “small” business at the time. This certification is good for the five-year life of the MAS contract plus three additional five-year renewal options, regardless of whether SEA grows beyond what would normally qualify as “small” during the term of the MAS contract.

Accordingly, as a matter of law, SEA is considered to be a small business for the duration of the MAS, which would include all times relevant to this litigation. Therefore, also as a matter of law, allegations of misrepresentations are immaterial for purposes’ of this litigation. Bearing this in mind, I believe that the plaintiff did not state a cause of action for intentional/fraudulent misrepresentation.

| ¡¡I believe the plaintiff also did not state a cause of action for negligent misrepresentation. As I noted above, SEA is considered to be a small business for the duration of the MAS contract. Consequently, also as a matter of law, it is immaterial for purposes of this litigation whether SEA negligently misrepresented its size.

Finally, I believe that the plaintiff did not state a cause of action for revocatory and oblique actions. SES’s petition alleges that “SEA made distributions to Apo-gen which caused or contributed to SEA’s insolvency such that SES as a creditor may revoke those distributions.” Thus, SES’s revocatory and oblique action claims presuppose SES’s status as a creditor of SEA. However, SES’s creditor status is in turn predicated upon SES’s above discussed claims against SEA which, as I have already pointed out, have no basis in law.

For the foregoing reasons, I would affirm the judgment of the trial court.

CANNIZZARO, J.,

Dissenting.

hi respectfully dissent from the majority opinion. The plaintiffs have alleged that they have claims against the defendants, because the defendants intentionally and fraudulently and negligently misrepresented facts to government entities. According to the plaintiffs’ claims, the misrepresentations caused them damages.

Intentional or Fraudulent Misrepresentation

As the trial court judge explained in her reasons for judgment, certain elements are required to prove an intentional or fraudulent misrepresentation. There must be a misrepresentation of a material fact, an intent to deceive, and a justifiable reliance on the misrepresentation of fact that causes damage. As set forth in the majority opinion, the facts in the petition must be considered as true for purposes of an exception of no cause of action. Additionally, to defeat an exception of no cause of action, the petition on its face must contain allegations, which, if proven, state a cause of action.

The allegedly misrepresented facts were represented to a government entity, not to the plaintiffs, and neither the petition nor the amended petition alleges that the facts were misrepresented to them. Further, there is no allegation in the petition or the amended petition that the defendants had an intent to deceive the plaintiffs.

| ¡Although the plaintiffs do allege in the petition that they relied to their detriment on the misrepresented facts, they do not allege how they could have relied on facts that were misrepresented to a government entity and not to them. Thus, I do not think that in this case the petition, as amended, alleges on its face the elements that are required for a cause of action for fraudulent or intentional misrepresentation.

Negligent Misrepresentation

A claim for negligent misrepresentation on the part of the defendants would require the plaintiffs to have alleged in their petition, as it was amended, certain elements. False information must have been supplied by the defendants, the defendants must have had a duty to supply correct information, the duty to supply correct information must have been breached by an act or omission of the defendants, and the plaintiffs must have incurred damages as a result of the plaintiffs’ reliance on the false information. The petition, as amended, on its face fails to state a cause of action for negligent misrepresentation, because the allegations in the petition, as amended, do not include the elements required for a cause of action based on negligent misrepresentation. There was no allegation of a legal duty owed by the defendants to the plaintiffs, which is essential for stating a claim for negligent misrepresentation.

Oblique and Revocatory Actions

The plaintiffs have alleged that they are entitled to an oblique or a revocatory action against the other defendants if Science & Engineering Associates, Inc. is insolvent. These actions are for the benefit of a creditor whose debtor is insolvent. I would find that there can be no debtor creditor relationship between the plaintiffs and the defendants based on the petition, as amended, because it fails to state a cause of action for either intentional, fraudulent misrepresentation or negligent misrepresentation. Therefore, there is no cause of action for an oblique or a revoca-tory action.

laBased on the foregoing analysis, I would remand this case to the trial court. The plaintiffs should be given an opportunity to amend their petition to state a cause of action. La. C.C.P. art. 934.

      . Apogen and SEA merged in the intervening period.

      . Savoie was SEA's president during the pertinent time period.

      . (Compare this Court's discussion of the effect of immaterial fraud on a judgment in Haney v. Davis, 04-1716, p. 5 (La.App. 4 Cir. 1/19/06), 925 So.2d 591, 595, writ denied 06-0413 (La.4/28/06), 927 So.2d 293, and cases cited therein.)


author: LOLLEY, J. CARAWAY, J., DREW, J.

text:
    Jerry L. HUBBARD d/b/a JLH Logging, Plaintiff-Applicant v. Robert A. PIKE, ELR, L.L.C., and Eskridge, Lueck, Reed, Inc., Defendants-Respondents.
    No. 42,233-CW.
    Court of Appeal of Louisiana, Second Circuit.
    July 11, 2007.
    Opinion Modified on Rehearing Aug. 15, 2007.

      Kelly & Townsend by Thomas Taylor Townsend, Natchitoches, for Applicants Jerry L. Hubbard and JLH Logging.
    Adams & Reese by Phillip A. Franco, Jeffery E. Richardson, Andrew C. Kolb, Jason P. Franco, New Orleans, Cary A. Desroches, for Respondent Robert A. Pike.
    Corkern & Crews by Ronald E. Cor-kern, Jr., Chaffe McCall by Corinne A. Morrison, James C. Young, Charles P. Blanchard, New Orleans, for Respondents, ELR, L.L.C. & Eskridge, Lueck, Reed, Inc.
    Before CARAWAY, DREW and LOLLEY, JJ.
   LOLLEY, J.

J^This court granted a writ and docketed this matter for consideration after reviewing the application for supervisory writ of the plaintiff, Jerry L. Hubbard d/b/a JLH Logging (“Hubbard”). Hubbard maintains that the 8th Judicial District Court, Parish of Winn, Louisiana, erred in granting the declinatory exceptions of improper venue filed separately by the defendants, Robert A. Pike, ELR, L.L.C., and Eskridge, Lueck, Reed, Inc. For the following reasons, we conclude that the judgment of the trial court was ultimately correct, and we affirm.

Facts

Hubbard, a resident of Winn Parish, entered into a verbal agreement in 2006 with Robert Pike (“Pike”), a resident of St. Tammany Parish. The men were to supply mud to a contractor working with the Army Corps of Engineers for the levee rebuilding project in Plaquemines Parish following Hurricane Katrina. Hubbard prepared a Partnering Agreement reflecting the verbal agreement. Said agreement reiterated the verbal agreement and indicated that Pike and Hubbard would be equal partners; however, the written agreement was never executed by either of them.

Hubbard and Pike also apparently agreed that two Alabama companies, ELR, L.L.C. (“ELR, LLC”) and Eskridge, Lueck & Reed, Inc. (“ELR, Inc”), would be involved in the operation, but those entities’ participation in the venture is not at all clear from this application. According to the application, ELR, Inc. is licensed to do business in Louisiana and its principal place of business is in Jefferson Parish, while ELR, LLC is not licensed to do business in Louisiana, but is in fact doing business in this state. Notably, neither entity was mentioned in the Partnering Agreement.

LPike allegedly told Hubbard that a man named Billy Nunguesser, Pike’s supposed uncle, could supply mud from his property in Plaquemines Parish. In May 2006, Diamond K Corporation (“Diamond K”) entered into a written agreement, which lists Hubbard and ELR, LLC — there is no mention of Pike. According to Hubbard, Pike then schemed to cut Hubbard out of this lucrative contract. Pike allegedly arranged for himself and the business entity defendants to get mud from Nunguesser and resell it to the contractor without involving (or paying) Hubbard.

In June 2006, Hubbard sued the defendants in the 8th Judicial District Court, Winn Parish, Louisiana, alleging, among other claims, that all three defendants acted “in concert and conspiracy” to misrepresent the facts of the arrangement to Hubbard. His petition urged that venue was proper in Winn Parish as to all defendants under La. C.C.P. art. 42 and the long-arm statute, La. R.S. 13:3201, et seq.

In response, all three defendants filed separate declinatory exceptions of improper venue, as well as other exceptions not relevant to Hubbard’s writ application. Each defendant argued that La. C.C.P. art. 80 applied to the case, requiring it be heard in the venue of Plaquemines Parish. The trial court conducted a hearing on the exceptions, at which the trial court heard testimony from Hubbard as well as argument from the parties’ attorneys. In part, Hubbard testified that he would have been looking to obtain mud from one or more sources in Plaquemines Parish, not only from Nunguesser, and that some of this mud may already have been taken from the point of origin when the partners bought it. Hubbard also said that the partnership had been offered $45 million for the entire deal by a Texas company, apparently before Hubbard had been cut out.

^Following the hearing, the trial court issued its ruling with written reasons. The trial court relied on Hubbard’s testimony that the mud to be used in the venture would have been obtained from Plaquemines Parish and determined that, as a result, La. C.C.P. art. 80 applied and, consequently, venue was proper in Plaque-mines Parish. The written ruling explicitly stated that the trial court would sign a judgment in accordance with its ruling and it did so, formally transferring the case to Plaquemines Parish. Hubbard gave the trial court notice of intent to seek writs and requested the trial court to stay its transfer order pending a final resolution of the matter. The trial court granted the stay, and we are now considering it on supervisory review.

Discussion

In this case sub judice, venue for an action against Pike alone would be in St. Tammany Parish, where he resides. La. C.C.P. art. 42(1). As to ELR, Inc., venue would lie in Jefferson Parish, where the corporation has its primary business office in Louisiana. La. C.C.P. art. 42(4). Finally, venue as to ELR, LLC would be proper in Winn Parish, where Hubbard is domiciled. La. C.C.P. art. 42(5). Hubbard filed his lawsuit in Winn Parish, and there lies the problem. The defendants all argued as the grounds for their separate exceptions of improper venue that venue was proper in Plaquemines Parish pursuant to La. C.C.P. art. 80. The trial court agreed, focusing on the agreement of the parties and emphasizing the fact that the mud “to be used” — characterized as an immovable by the trial court — was located in Plaquemines Parish. Thus, as reasoned by the trial court, La. C.C.P. art. 80 was applicable and venue was proper in Plaquemines Parish.

The only assignment of error raised by Hubbard is his assertion that the trial court erred in granting the defendants’ exceptions of improper venue. Hubbard Lspecifically argues that the trial court was incorrect in ruling that venue was proper in Plaquemines Parish pursuant to La. C.C.P. art. 80. We agree with that limited assertion, because we believe that the trial court’s reason for sustaining the exceptions was incorrect. However, whereas we disagree with the reasoning offered by the trial court, we conclude that venue in this case was not proper in Winn Parish, but does correctly lie in Plaque-mines Parish for the following reasons.

Venue means the parish where an action or proceeding may properly be brought and tried under the rules regulating the subject. La. C.C.P. art. 41. The general rules for “proper venue as to the defendant” are found in La. C.C.P. art. 42. Louisiana C.C.P. art. 43, on the other hand, states that the general venue rules in art. 42 are subject to the exceptions contained in La. C.C.P. art. 71 through art. 85 and as otherwise provided by law, i.e., the exclusive venue provisions. Clarendon Nat. Ins. Co. v. Carter, 39,622 (La.App. 2d Cir.05/11/05), 902 So.2d 1142, writ denied, 2005-1567 (La.01/27/06), 922 So.2d 544. If the grounds for the objection of improper venue do not appear on the face of the plaintiffs petition, the burden is on the defendant to offer evidence in support of his position. Nitro Gaming, Inc. v. D.I. Foods, Inc., 34,301 (La.App. 2d Cir.11/01/00), 779 So.2d 817.

Ancillary venue applies when separate claims involving common or identical questions of fact share no common venue. Underwood v. Lane Memorial Hosp., 1997-1997 (La.07/08/98), 714 So.2d 715. The concept of ancillary venue allows such claims to be tried together for reasons of judicial economy and efficiency, even though venue is not proper technically for one claim or one party.

| RThis concept has also been extended to the multiparty context when venue is proper as to only one defendant. Id.

Because venue is a question of law, on review, the appellate court should conduct a de novo review of the record. Nitro Gaming, Inc., supra.

As stated, the defendants all maintain that venue for this action is proper in Plaquemines Parish under La. C.C.P. art. 80, entitled “Action involving immovable property,” and which states in pertinent part as follows:

A. The following actions may be brought in the parish where the immovable property is situated or in the parish where the defendant in the action is domiciled:
(1) An action to assert an interest in immovable property, or a right in, to, or against immovable property....

Notably, the defendants, despite having the burden of proof, offered no evidence at the hearing on their exceptions of improper venue. The sole evidence offered at the hearing was Hubbard’s testimony, and considering his testimony regarding the facts in the instant case, we do not believe that this action by Hubbard falls within the parameters of article 80. As stated, Hubbard’s lawsuit stems from the agreement he originally had with Pike to form a joint venture. He claims that the defendants breached their fiduciary duties to him and/or committed fraudulent acts to deprive him of profits of the joint venture. Hubbard prayed for “an accounting of the profits realized from the joint venture,” which profits could have come from the acquisition of the mud from any undisclosed location. Thus, whereas the joint venture between the parties might have been related to the mud, the property itself is not the interest that Hubbard sought — i.e., the mud in | ^Plaquemines Parish is not the indisputable object of the agreement between the parties. The petition does not designate that the mud would even necessarily come from Plaquemines Parish. Moreover, the letter agreement presented by Diamond K to Hubbard and ELR, LLC says nothing about where the mud was located. Significantly, there is no evidence of a formal agreement between any of parties that links them with Nungesser and specific mud in Plaquemines Parish.

Hubbard seeks lost profits as a result of the alleged breach of fiduciary duty by the defendants, which duty related to the purchase and sale of what may have been immovable property, not an interest in immovable property. See Riddle v. Simmons, 40,000 (La.App. 2d Cir.02/16/06), 922 So.2d 1267, writ denied, 2006-0793 (La.06/02/06), 929 So.2d 1259. This agreement would be no different from a scenario where two individuals form a partnership to buy and sell real estate for investment purposes. Whereas such an agreement might be related to immovable property, certain and specific immovable property is not necessarily the direct object of such agreement. See Coleman v. Fisher Lumber Corp., 28,446 (La.App. 2d Cir.06/26/96), 677 So.2d 678, writ denied, 1996-1789 (La.09/03/96), 678 So.2d 558, where real estate broker brought action against various defendants in connection with a contract stemming from the purchase of a large tract of real estate located in various Louisiana parishes. Likewise, there was no specific immovable property that was the object of the agreement. Thus, we conclude that the trial court erred by finding that this was an action asserting an interest in immovable property and its conclusion that La. C.C.P. art. 80 controlled, making venue proper in Plaque-mines Parish.

|7Next, having determined that venue is not correct under La. C.C.P. art. 80, we look to Hubbard’s assertion that under La. C.C.P. art. 73 and La. R.S. 13:3203 venue for this action is proper in Winn Parish. We disagree.

Louisiana C.C.P. art. 73(A) states:

An action against joint or solidary obli-gors may be brought in a parish of proper venue, under Article 42 only, as to any obligor who is made a defendant provided that an action for the recovery of damages for an offense or quasi-offense against joint or solidary obligors may be brought in the parish where the plaintiff is domiciled if the parish of plaintiffs domicile would be a parish of proper venue against any defendant under either Article 76 or R.S. 13:3203.

Louisiana R.S. 13:3203 states that “[a] suit on a cause of action described in R.S. 13:3201 may be instituted in the parish where the plaintiff is domiciled, or in any parish of proper venue.” Here, the parish of Hubbard’s domicile is Winn Parish, where this litigation was initially filed by Hubbard and where he claims venue is correct for this litigation.

A plaintiff invoking the provisions of La. C.C.P. art. 73 must allege sufficient facts to prove that the chosen venue is the proper venue for at least one of the joint or solidary obligors. Additionally, and importantly, the plaintiff is also required to allege facts showing that the various defendants are in fact jointly or solidarily obligated. Price v. Roy O. Martin Lumber Co., 2004-0227 (La.App. 1st Cir.04/27/05), 915 So.2d 816, writ denied, 2005-1390 (La.01/27/06), 922 So.2d 543; Curole v. Ochsner Clinic, LLC, 2001-1734 (La.App. 4th Cir.02/20/02), 811 So.2d 92.

Here, Hubbard fails in his burden. Notably, the record is unclear what relationship Hubbard exactly had with the two business entity defendants, ELR, LLC and ELR, Inc. Whereas, they are included with Pike in the allegations of the petition as being part of the partnership with Hubbard, the draft Partnering |sAgreement only indicates that Hubbard and Pike would be equal partners in the venture. Additionally, Hubbard’s own testimony at the hearing on the venue exceptions indicates that his deal was with Pike originally. It is unclear exactly what connection ELR, LLC and ELR, Inc. had with Hubbard. There is no mention by Hubbard of meeting with representatives of either entity. Although Hubbard alleges that all three defendants breached their fiduciary duties and committed intentional and fraudulent acts against him, it is not stated with any detail or specificity what those acts were. And whereas Hubbard makes conclusory claims that Pike, ELR, LLC and ELR, Inc. are jointly or solidarily liable to him, he makes no factual claims that would support such an allegation. Neither did Hubbard’s testimony at the hearing on the exception elaborate on the general allegations. So considering, Hubbard failed to set forth sufficient factual allegations to invoke the provisions of La. C.C.P. art. 73 in his favor. See, Curole, supra.

Thus, if La. C.C.P. art. 80 does not apply, nor art. 73, then what article does govern in this case? We look to La. C.C.P. art. 76.1, concluding, as did the trial court, that venue in this case is proper in Plaquemines Parish, albeit for a different reason than the trial court. In Hubbard’s petition, we examine his claims and note that he makes both contract and tort claims against the defendants. As discussed, the petition (or the record as a whole) does not offer much detail on the exact nature of Hubbard’s claims, but it is clear that Hubbard and Pike had an oral agreement to share in profits and losses associated with their joint venture in connection with the rebuilding of the levees in Plaquemines Parish. By our reading of the petition, the contractual claims are the more evident and fact specific claims in the petition. This is especially so when considering Hubbard’s testimony. In connection with those contractual claims, Hubbard asserts that the | ¡defendants excluded him from activities agreed to be the subject of the joint venture and said actions were a breach of their fiduciary duty to him. Hubbard seeks an accounting of profits that would have been realized from the joint venture. Clearly, these are contractual claims, and the rest of the allegations (i.e., the tort claims) stem from this contractual relationship of the parties (at least the relationship between Hubbard and Pike).

Considering those claims, we conclude that venue is proper in Plaquemines Parish because of La. C.C.P. art. 76.1, which states that “[a]n action on a contract may be brought in the parish where the contract was executed or the parish where any work or service was performed or was to be performed under the terms of the contract.”

One of the only facts that is unwavering in this litigation is that Hubbard and Pike had contracted for the purpose of providing mud “for the levee repairs and/or construction in Plaquemines Parish," as alleged in the petition (emphasis added). All the parties are in agreement that the work was to be performed on the levees in Plaquemines. That is the one non-muddy fact of this entire controversy.

Because Hubbard also makes tort claims against the defendants, potentially art. 76.1 could be in conflict with La. C.C.P. art. 74, which deals with determination of venue in tort claims. However, art. 74 requires determination of the parish where the wrongful conduct occurred (presumably, but not conclusively, Plaquemines Parish), or the parish where the damages were sustained, which is unknown from the record before us. Because we cannot determine with certainty either inquiry required by La. C.C.P. art. 74, we cannot conclude that it is in conflict with art. 76.1. Thus, it is unnecessary to consider La. ImC.C.P. art. 45, which addresses conflicts between the venue articles. Finally, the doctrine of ancillary venue applies to the other claims and parties for whom Plaque-mines Parish would not otherwise be a proper venue, making Plaquemines Parish the proper venue for the entire action. See Nitro Gaming, Inc., supra, citing, Underwood, supra.

CONCLUSION

For the foregoing reasons, the judgment of the trial court sustaining the exceptions of improper venue filed by the defendants, Robert A. Pike, ELR, L.L.C., and Esk-ridge, Lueck, Reed, Inc. is affirmed. Costs of this proceeding are assessed to the plaintiff, Jerry L. Hubbard d/b/a JLH Logging. As stated in the trial court’s judgment, this matter will now proceed in the 25th Judicial District Court for the Parish of Plaquemines, Louisiana.

AFFIRMED.

CARAWAY, J., dissents with written reasons.

CARAWAY, J.,

dissenting.

hi respectfully dissent from the choice of Plaquemines Parish as the proper venue. This panel agreed in granting the supervisory writ that the trial court’s employment of La. C.C.P. art. 80 for the selection of Plaquemines Parish was improper. Yet, the writ should never have been granted, and the plaintiff delayed, if the trial court’s selection of Plaquemines Parish was the correct judgment all along for the wrong reason.

The majority’s opinion suffers from indecision over the nature of the claims against the two Alabama entities, turns the plaintiff-friendly concept of ancillary venue on its ear, and ultimately mandates rigidly one venue when multiple choices abound.

Is there a cause of action against these two Alabama entities or not? In paragraph 5 of the petition, plaintiff alleges “a joint venture with Defendants for the purpose of obtaining and selling mud.” In Riddle v. Simmons, 589 So.2d 89 (La.App. 2d Cir.1991), writ denied, 592 So.2d 1316 (La.1992), this court recognized that a joint venture is analogous to a partnership. It is usually formed not for the transaction of a general partnership business but for a more specific business undertaking or venture. “No formal or specific agreement is required” for the formation of a joint venture. Id. at 92. Partners in a joint venture owe fiduciary duties and an accounting for profits. La. C.C. art. 2809. The accounting would at least represent a joint obligation of the partners.

j2All defendants in this case concede that plaintiff has alleged a claim for joint venture accounting. Their argument rests however upon the incorrect premise that the joint venture concerned the acquisition of immovable property rights in Plaque-mines Parish requiring the exclusive and mandatory venue of La. C.C.P. art. 80. Nevertheless, the majority opinion vacillates over the existence of a partnership claim for breach of fiduciary duties and accounting. It ultimately appears to reach the merits of this partnership claim in this preliminary stage of the proceeding, ruling that without “detail or specificity” and inclusion of the Alabama entities in the draft Partnering Agreement, there is no cause of action against those entities as joint obligors in a joint venture. While I find the claims against the two Alabama entities somewhat tenuous, I am not prepared to dismiss the claims on a peremptory exception of no cause of action and neither is the majority, or, for that matter, the entities themselves.

Therefore, this is a suit against joint or solidary obligors for joint venture accounting and the broad venue of Article 73 of the Code of Civil Procedure applies. Referring to Article 73 in Underwood v. Lane Memorial Hosp., 97-1997 (La.7/8/98), 714 So.2d 715, 719, our Supreme Court recognized that the article adopts the concept of ancillary venue by permitting joint or soli-dary obligors to be sued in any parish where venue is proper as to only one of them. The Article 42 venue for defendant, ELR, LLC, as recognized by the majority, is Winn Parish. Likewise, the long arm statute’s venue for that defendant is Winn Parish. La. R.S. 13:3203. Therefore, Article 73 allows Winn Parish as a choice for venue in this case.

[¡¡Also troubling is the majority’s rigid transfer of venue to Plaquemines Parish. Article 121 of the Code of Civil Procedure gives the court the option after granting the venue exception to simply dismiss the case or in the interest of justice to transfer it to a proper venue. After concluding that the claim against defendant, Pike, is different from the claims against the entities and that there is no joint or solidary relationship, the majority then chooses one of the multiple venues for Pike and directs that all defendants be sued in Plaquemines Parish. Recognizing that Plaquemines Parish may not be a proper venue as the situs of any wrongful tortious conduct of those Alabama defendants, the majority nevertheless chooses it as venue for the claims of all defendants alike under the guise of ancillary venue.

From my understanding of the Underwood ruling and the liberality of multiple and ancillary venues now prevalent in our law, the concept of ancillary venue is for the benefit and choice of the plaintiff. The majority brings ancillary venue to the aide of the defendants. If these defendants are not jointly or solidarity bound and separate categories of claims have been cumulated into one action, the action against Pike might be dismissed for improper venue under the majority’s reasoning. Yet, this suit against the two Alabama entities on different claims clearly may proceed in Winn Parish. Cf., La. C.C.P. art. 463. Should ancillary venue be used to bring the two Alabama defendants to Pike’s venue, or should Pike be brought to their venue in Winn Parish? The choice for using ancillary venue, a concept already built into the workings of Article 73 venue, is for the plaintiff to | ¿exercise. The plaintiff could properly choose Winn Parish as the venue in this case.

On Rehearing

Before STEWART, CARAWAY, PEATROSS, DREW and LOLLEY, JJ.

DREW, J.

hThe original opinion of the majority affirming the trial court’s grant of the defendants’ exceptions of venue is now modified on rehearing to withdraw the order transferring the case to Plaquemines Parish pursuant to La. C.C.P. art. 121. The trial court’s ruling dismissing plaintiffs claims on the defendants’ exceptions of venue is otherwise affirmed. The case is remanded to the Eighth Judicial District Court for Winn Parish to afford the plaintiff, pursuant to La. C.C.P. art. 932, an opportunity to amend the petition or take other action to alleviate the problems of venue affecting his claims against the various defendants.

STEWART, J., dissents from the grant of rehearing.

LOLLEY, J., dissents from the grant of rehearing.

      . ELR, LLC and ELR, Inc. offered the affidavit of Winston W. Edwards, a member of ELR, LLC, attached to their exception; however, said affidavit is not considered "competent” evidence as envisioned under La. C.C.P. art. 930. See Michael F. Smith, CPA v. Alford, 2004-0586 (La.App. 1st Cir.03/24/05), 906 So.2d 674. Notably, Hubbard objected to the consideration of the affidavit in support of the exception.

        . Louisiana C.C.P. art. 43 lists art. 76.1 as an exception to the general venue rule of art. 42.