author: TERRI F. LOVE, Judge.

text:
    SUCCESSION OF Albert P. FIRMIN.
    No. 2005-CA-1218.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 2, 2006.

      Jack M. Alltmont, Sessions, Fishman & Nathan, L.L.P., New Orleans, LA, for Appellant.
    Miles G. Trapolin, Trapolin Law Firm, New Orleans, LA, for Appellee.
    (Court composed of Judge JAMES F. McKAY, III, JUDGE TERRI F. LOVE, Judge LEON A. CANNIZZARO, JR.).
   TERRI F. LOVE, Judge.

|; This case arises from a dispute in a succession proceeding regarding the payment of the mortgage debt on a home. The issue on appeal is which of the parties is responsible for payment of the interest on the mortgage note as between the wife of the decedent, who was left the “use and habitation” of the property, and the succession. We affirm the trial court’s judgment in holding that the decedent’s wife is not required to pay the interest on the mortgage debt.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Albert P. Firmin died testate on February 2, 2003, leaving his wife, Valerie Bos-worth Firmin (“Mrs.Firmin”), full ownership of all his “household furniture and belongings, appliances, and miscellaneous personal effects” and “use and habitation” of the house in which they resided at 24 Chatham Drive, New Orleans. The home is encumbered by a mortgage. Additionally, the will provided for the creation of a trust, for the benefit of Mr. Firmin’s two major daughters from a previous marriage, to which he left “the balance of all the property of which I die possessed” subject to “the right of use and habitation of my home” and the other “special legacies set forth in Article I.” He appointed his sister Henrynne Louden (“Executrix”) as his executrix and trustee.

| ¡.Testamentary language directs that Mrs. Firmin have “use and habitation” of the home for as long as she may live, provided that she not vacate the premises for over six months, and that she care for the property as a prudent administratrix, making all reasonable repairs, paying taxes and maintaining both fire insurance and “extended coverage insurance.” She has resided in the home from the date of Mr. Firmin’s death.

On July 9, 2003, Mrs. Firmin filed a Motion to Compel Executrix to Pay Mortgage on the Family Home; the Executrix filed a motion in opposition on October 2, 2003. The Executrix then filed a Petition for Partial Possession and Motion and Incorporated Memorandum to Require Legatee to Accept or Renounce Legacy. In response, Mrs. Firmin claimed that she was neither under a legal nor a testamentary obligation to pay the mortgage notes. The Executrix alleged that Mrs. Firmin must either pay the mortgage in order to maintain her right of habitation of the property or relinquish her use of the property. Mrs. Firmin asserted that the Louisiana Civil Code does not require a holder of the right of habitation to pay fees associated with either usufruct or ownership.

After a hearing, the trial court issued a judgment denying the Motion to Force Valerie Firmin to Pay the Mortgage, Reimburse the Succession for Mortgage Payments Already Made and in the Alternative for Rent. The trial court found there existed no legal authority to require Mrs. Firmin to pay the mortgage or to pay rent.

After the issuance of judgment, the Executrix filed a memorandum asserting that under the doctrine of limited liability to legatees, succession debts are charged |sagainst the encumbered property itself. Thus, she contends that if Mrs. Firmin accepted the legacy, she would be required to pay at least the interest portion of the mortgage notes without any right to reimbursement from the succession or the owners of the home. According to the Executrix, failure to pay the interest on the mortgage notes would require Mrs. Firmin to renounce her right of habitation. The Executrix also sought reimbursement from Mrs. Firmin for the mortgage notes paid by Mr. Firmin’s succession. Mrs. Firmin’s Reply Memorandum alleged that the Executrix did not differentiate between the responsibilities of universal and particular usufructuaries and legatees such as herself, and that the decedent’s debt does not attach to particular legatees. Additionally, she argued that the testamentary language specifically does not require a legatee to pay the mortgage debt.

The trial court issued its Final Judgment denying the motion to force Mrs. Firmin to pay the mortgage, and further denied the Executrix’s motion for a new trial. The Executrix’s timely appeal followed.

The Executrix asserts that Mrs. Firmin, as a person with the right of “use and habitation,” has an affirmative obligation under the Louisiana Civil Code to pay the interest due on the mortgage while she enjoys exclusive use and habitation of the property. The Executrix does not appeal the trial court’s judgment that Mrs. Fir-min is not liable for the principal on the mortgage. If Mrs. Firmin does not pay the interest, the Executrix argues that the person must be required to terminate her use and habitation of the property.

STANDARD OF REVIEW

The standard of review of appellate courts in reviewing a question of law is “simply whether the court’s interpretive decision is legally correct.” Phoenix Assur. Co. of N.Y. v. Shell Oil Co., 611 So.2d 709, 712 (La.App. 4th Cir.1992). Furthermore, if the decision of the district court is based on an “erroneous interpretation or application of law rather than on a valid exercise of discretion,” the decision is not entitled to deference by the reviewing court. Kem Search, Inc. v. Sheffield, 434 So.2d 1067, 1071-72 (La.1983).

RIGHTS OF HABITATION AND USE

Mr. Firmin’s will explicitly directs that the legatee be granted “the right of use and habitation” of the home in which they had resided, subject to the conditions that she not vacate the premises in excess of six months, and that she care for the property as a prudent administratrix. Mr. Fir-min included in the will that Mrs. Firmin “shall be responsible to make all reasonable repairs, pay all taxes, and keep the improvements located on the property covered with adequate fire and extended coverage insurance.” The right of habitation is a “nontransferable real right of a natural person to dwell in the house of another.” La. C.C. art. 630. This right is “regulated by the title that establishes it.” La. C.C. art. 632. Thus, Mrs. Firmin’s right of habitation is governed by the above mentioned testamentary language which explicitly delineates her rights and responsibilities.

The Louisiana Supreme Court “has indicated that the function of the courts is to carry out the intention of the testator and effect should be given to all language contained in the will if possible.” Succession of Bel, 377 So.2d 1380, 1383 (La.App. 4th Cir.1979). Mr. Firmin’s will specified the legatee’s financial responsibilities concomitant to “use and habitation.” These are substantially similar to those obligations provided for in the Louisiana Civil Code, including | ¿responsibilities for reasonable repairs and taxes on the property. La. C.C. art. 636.

Furthermore, the will details the formation of a trust, comprising the balance of the estate, in favor of Mr. Firmin’s major daughters. The care in drafting and attention to detail further supports Mrs. Fir-min’s assertion that Mr. Firmin intended only to bequeath to her the limited rights of use and habitation. See Succession of Cottrell v. Quirk, 05-841, pp. 2-3 (La.App. 3 Cir. 2/1/06), 921 So.2d 1235, 1238.

The rights of both use and habitation are limited rights, providing for less than full enjoyment of immovable property. The right of use grants a personal servitude over the specified use of an estate. La. C.C. art. 639.

In Aucoin v. Fontenot, 304 So.2d 754, 757 (La.App. 3 Cir.1974), the court differentiated between a right of use and that of a usufruct, reiterating then La. C.C. art. 638, which stated, “the person who has the right of use can neither transfer, let, nor give his right to another.” This distinction is further emphasized in the 1976 Revision Comments to the Louisiana Civil Code. La. C.C. art. 632 Revision Comments — 1976 paragraph (b), provides that the “right to receive the fruits of a house and to sell and dispose of them freely, would be a right of usufruct....” The legatee does not possess these rights in conjunction with habitation; these rights are held by the trust. Furthermore, the Revision Comments— 1976 state that “[i]f a juridical act confers advantages that exhaust the utility of the property, it establishes a usufruct rather than a right of use.” La. C.C. art. 639 Revision Comments — 1976 (b).

|fiThe Executrix argues that taken together these testamentary rights of habitation and use give rise to an affirmative obligation that the legatee pay the interest portion on the home mortgage. She further argues that the Louisiana Civil Code articles that analogize the rights and obligations of habitation to that of a usufruct. La. C.C. arts. 631, 635, 636.

The Executrix relies on paragraph (b) of the Revision Comments — 1976 to La. C.C. art. 630 for the proposition that where the Louisiana Civil Code articles on habitation are silent, then the right of habitation is governed by the code articles on usufruct. La. C.C. art. 630 defines the term “habitation” as the “nontransferable real right to dwell in the house of another.” Paragraph (b) of the Revision Comments — 1976 to La. C.C. art. 630 states that habitation is a charge on property in favor of a person and therefore, the personal servitude of habitation is “akin to usufruct,” which is also a charge on property in favor of a person. The language does not connote, as the Executrix asserts, that where the Louisiana Civil Code articles on habitation are silent, the articles on usufruct apply.

The Executrix relies on La. C.C. art. 632 to support her position because it states that “[t]he right of habitation is regulated by the title that establishes it.” Additionally, “[i]f the title is silent as to the extent of habitation, the right is regulated in accordance with Articles 633 through 635.” The Revision Comment^ — 1976? to La. C.C. art. 632 state in paragraph (b) that if an agreement exceeds the limits on the rules governing the right of habitation, then another right is created. Paragraph (b) further states that, if, for example, a person is given the right to receive the fruits and dispose of the fruits of a house in addition to the right of habitation, then a usufruct is created, and all of the laws concerning usufruct would be applicable to the right to receive and dispose of the fruits.

The Executrix interprets paragraph (b) as applying the laws of usufruct relating to paying the mortgage on the family home because the will did not dictate who should pay the mortgage. This is without merit. La. C.C. art. 632 states that only when the title establishing the extent of the right of habitation is silent, the right is regulated in accordance with La. C.C. articles 633 through 635, which are contained in the chapter of the Louisiana Civil Code on the right of habitation, not in the chapter on usufruct. If Mr. Firmin’s will had granted Mrs. Firmin rights that exceeded those of habitation such that a usufruct was established in favor of Mrs. Firmin, the provision in paragraph (b) relating to the laws of usufruct would become operative. Mr. Firmin’s will did not establish a right beyond that of habitation. Therefore, the provision in paragraph (b) relating to the law of usufruct is inapplicable in this case.

La. C.C. art. 636 states the obligations of a person with the right of habitation. If the person occupies an entire house, that person is liable for “ordinary repairs, for the payment of taxes, and for other annual charges in the same manner as the usufmctuary.” (Emphasis added). Therefore, the articles on usufruct provide instruction on the manner in which a usu-fructuary is required to make ordinary repairs, to pay taxes, and to pay annual charges.

|sThe manner in which a usufructuary is liable for ordinary repairs is set forth in La. C.C. arts. 577-583. The manner in which a usufructuary is liable for the payment of taxes and the payment of annual charges is set forth in La. C.C. art. 584, which provides that the usufructuary is required to pay the annual charges, such as property taxes, that are imposed while the usufructuary enjoys the use of the property. Paragraph (d) of the Revision Comments — 1976 to article 584 makes it clear that the annual charges to which La. C.C. art. 584 refers are “annual public charges.” There is nothing in La. C.C. arts. 577-583 or in La. C.C. art. 584 that refers to mortgage payments. Thus, these articles are not applicable in this case. Mrs. Firmin’s obligations relating to the repair of the family home and the payment of taxes and annual charges on the home are governed by the provisions of Mr. Firmin’s will and the provisions of La. C.C. art. 636.

OBLIGATIONS OF A USUFRUCTUARY

If the Louisiana Civil Code articles relating to use and habitation could be analogized to those rights and obligations created by usufruct, the legatee would not be responsible for the interest on the mortgage debt. The Executrix relies on the language of Louisiana Civil Code articles relating to habitation to assert that it imparts usufructuary obligations on the legatee. See generally La. C.C. arts. 630-636. However, the provisions on usufruct mor-tis causa do not support this argument.

La. C.C. art. 587 states “the position of a usufructuary relative to the payment of the debts of the succession depends on whether the usufruct is universal, under universal title, or under particular title. The usufruct ... of individually determined things is under particular title.” The legacy of a right of use and habitation is of an individually determined thing. Moreover, a legatee of a 1 Susufruct is not liable for the debts of the succession, although she “may discharge the indebtedness.” La. C.C. art. 588 Revision Comments — 1976 (c). The Revision Comments — 1976 further explain “[t]hese debts must be paid by the universal successor of the grantor, be he the naked owner or a third person.” La. C.C. art. 588 cmt. (b).

The case at bar is distinguishable from Succession of Crain, 468 So.2d 778 (La.App. 1 Cir.1985), relied on by the Executrix. In Crain, the will confirmed a legal usufruct, and thereby expressly assigned all of the rights and obligations detailed in the Louisiana Civil Code to the legatee. Id. However, in this instance, even if Mrs. Firmin were considered to be in the position of a usufructuary, she is a particular legatee. Under both the reasoning of the Louisiana Civil Code and Louisiana case law, the universal successor and the naked owner are liable for the debts of the estate. See Succession of Dougart, 30 La. Ann. 268 (La.1878).

In taking the position that Mrs. Firmin is required to pay the mortgage interest on the family home, the Executrix also cites La. C.C. art. 586 in support of her contention. La. C.C. art. 586, which is contained in the chapter of the Louisiana Civil Code on usufruct, not the chapter of the code on right of habitation, clearly states that “[w]hen the property subject to the usufruct is burdened with a mortgage ... the usufructuary may discharge the indebtedness and may claim reimbursement only for the capital he has expended.” (Emphasis added). Even if La. C.C. art. 586 were applicable to Mrs. Firmin’s right of habitation, that article would not obligate her to pay the mortgage interest that accrues during her occupancy of the family home. Paragraph (c) of the Revision Comments — 1976 to La. C.C. art. 586 states that “the usufructuary has the right to discharge the indebtedness” if the property subject to a usufruct is burdened with a |inmortgage. (Emphasis added). The right to discharge the mortgage does not create an obligation.

The Executrix also relies on La. C.C. art. 592 to support her argument that Mrs. Firmin is obligated to pay the interest portion of the mortgage payment while she occupies the family home. La. C.C. art. 592, which is in the chapter of the Louisiana Civil Code on usufruct, not the chapter on habitation, provides that a usufructuary is entitled to be reimbursed without interest at the termination of the usufruct for succession debts paid by the usufructuary. La. C.C. art. 592 further provides that if the usufructuary does not advance the funds to pay a debt, then the naked owner may advance the funds, “for which the usufructuary shall pay interest during the period of the usufruct.” The naked owner also has the right under La. C.C. art. 592 to sell a part of the property subject to the usufruct to pay the succession debts, if the usufructuary does not pay the debts.

Paragraph (c) of the Revision Comments — 1976 to La. C.C. art. 592 states that a usufructuary is not permitted to return the property subject to a usufruct to the naked owner burdened with interest accrued during the term of the usufruct. Thus, if Mrs. Firmin had been granted a usufruct over the family home, she could not simply allow the mortgage to remain unpaid such that the property would be burdened at the termination of the usu-fruct with mortgage interest that had accrued during the term of the usufruct. Paragraph (c) is not applicable in the case sub judice. The right of usufruct is a broader right than that of habitation, and the obligations of a usufructuary may be more burdensome than those of a person with a right of habitation. The Louisiana Civil Code articles on habitation do not require Mrs. Firmin to pay interest on the mortgage on the family home and those Inarticles do not connote the incorporation of the provisions of La. C.C. art. 592 into the Civil Code provisions on habitation.

DEBTS OF THE SUCCESSION

The Executrix relies on Section 3 of Chapter 13 of the Civil Code, Responsibilities of Successors Among Themselves, La. C.C. art. 1420 et seq., in support of her argument that the legatee must pay the mortgage debts. She argues that under the theory of limited liability of successors, estate debts are charged against the property itself and its fruits and products, and not to the successors personally. See La. C.C. art. 1428 Revision Comment-1997. However, the legatee does not possess civil fruits of the succession, which are defined, in La. C.C. art. 551 Revision Comments— 1976(c), as “revenues derived from a thing by operation of law or by reason of a juridical act, such as rentals, interests, and certain corporate distributions.”

The mortgage on a family home is a debt of the succession, and the payment of succession debts are governed by the Louisiana laws governing successions and the administration of successions. La. C.C. art. 1422, for example, provides that “when a decedent has encumbered property to secure a debt, the debt is presumptively charged to that property and its fruits and products.” As noted, Mrs. | ^Firmin has only the limited rights of use and habitation; the fruits of the property belong to the trust.

Accordingly, Mrs. Firmin’s “use and habitation” of the home does not require her to pay interest on the mortgage note. Mrs. Firmin’s rights are more limited than those of a usufructuary. Accordingly, we affirm the trial court’s ruling that there is no legal authority to force Mrs. Firmin to pay interest on the mortgage note.

DECREE

For the reasons assigned above, we affirm the decision of the trial court.

AFFIRMED.

      . The succession has paid both the principle and the interest on the mortgage note for the duration of this action.

      . Approximately two years of litigation followed regarding accountings of the estate, discovery, and divisions of community property, none of which are at issue in this appeal.

      . La. C.C. art. 636: Taxes, repairs, and other charges
      When the person having the right of habitation occupies the entire house, he is liable for ordinary repairs, for the payment of taxes, and for other annual charges in the same manner as the usufructuary.
      When the person having the right of habitation occupies only a part of the house, he is liable for ordinary repairs to the part he occupies and for all other expenses and charges in proportion to his enjoyment.

      . La. C.C. art. 639: Right of use
      The personal servitude of right of use confers in favor of a person a specified use of an estate less than full enjoyment.

      . La. C.C. art. 631: Establishment and extinction
      The right of habitation is established and extinguished in the same manner as the right of usufruct.

      . La. C.C. art. 635: Degree of care; duty to restore the property
      A person having the right of habitation is bound to use the property as a prudent administrator and at the expiration of his right to deliver it to the owner in the condition in which he received it, ordinary wear and tear excepted.

      . La. C.C. art. 630 Revision Comments — 1976 (b):
      (b) Habitation is a personal servitude, namely, a charge on property in favor of a person, akin to usufruct. As a personal servitude, habitation is a dismemberment of ownership and a real right. Habitation is also similar to predial servitudes in that it is a charge on an immovable which does not exhaust the utility of the property.

      . La. C.C. art. 633 provides that a person with a right of habitation may reside in the house with his family. La. C.C. art. 634 provides that a person with the right of habitation is entitled to exclusive use of the house or the applicable part of the house, and the person may have friends, guests, and boarders. La. C.C. art. 635 provides that the person with a right of habitation must act as a prudent administrator of the property and deliver the property to the owner in the condition in which it was received, except for ordinary wear and tear, upon the expiration of the right of habitation.

      . La. C.C. art. 1428 Revision Comments— 1997:
      This article precludes any claim that the new articles on payment of debts supersede the provisions of the Civil Code with regard to the rights and obligations of a usufructuary. Indeed, the primary function of this article is to clarify that the provisions of this section dealing with the payment of debts do not displace or over-ride the allocation of responsibility for the payment of those debts as between the usufructuary and the naked owner. Under the new scheme of limited liability of successors, estate debts are charged to property, and its fruits and products, and not to successors personally. Successors are personally liable to creditors, only to the extent that they take possession of property of the estate, or its fruits and products. The new scheme of limited liability of successors for estate debts, allocates responsibility for payment of a debt to property itself, and there is no intention to alter, modify, or tacitly repeal, any of the provisions in the law of usufruct with regard to the responsibility of the usu-fructuary for payment of debts. When an estate debt is allocated to Blackacre, then, as between the usufructuary, who has the usu-fruct of Blackacre, and the naked owner, who owns the naked ownership of Blackacre, the responsibility is determined by the provisions of the Civil Code that deal with the law of usufruct. The responsibility of the underlying property against which the debt is charged is governed by the section of the Code dealing with payment of the debts, but as between the usufructuary and the naked owner with regard to the payment of those debts, the allocation and placement of responsibility is determined by the section of the Civil Code on the law of usufruct. These new articles do not relieve a usufructuary of the responsibility properly placed upon usufructuaries under the provisions of the Civil Code elsewhere.


source: Caselaw Access Project

author: JOAN BERNARD ARMSTRONG, Chief Judge.

license: Public Domain

text:
    Stephen DUNN v. NEW ORLEANS POLICE DEPARTMENT.
    No. 2006-CA-0044.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 9, 2006.
    Frank G. Desalvo, Desalvo Desalvo & Blackburn, APLC, New Orleans, LA, for Plaintifl/Appellee.
    Victor L. Papai, Jr., Assistant City Attorney, Heather M. Valliant, Assistant City Attorney, Joseph V. Dirosa, Jr., Chief Deputy City Attorney, Penya M. Moses-Fields, City Attorney, Allison Ward, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge JAMES F. McKAY III, Judge LEON A. CANNIZZARO JR.).
   JOAN BERNARD ARMSTRONG, Chief Judge.

pThe defendant-appellant, the New Orleans Police Department (NOPD), appeals a decision of the Civil Service Commission reinstating the plaintiff-appellee, Sergeant Stephen Dunn, with all back pay, thereby reversing the NOPD decision to dismiss him along with a twenty working-day suspension.

The facts are not in dispute. Basically, the NOPD took disciplinary action against Sergeant Dunn because he and his wife, who is not an NOPD employee, took two NOPD vehicles on a personal vacation trip to Florida, contrary to NOPD rules and City of New Orleans policy.

The Civil Service Commission reversed, based on the undisputed finding that the internal investigation into the matter exceeded sixty days contrary to La. R.S. 40:2531B(7), which provides in pertinent part that:

Except as otherwise provided in this Paragraph, each investigation of a law enforcement officer which is conducted under the provisions of this Chapter shall be completed within sixty days.... [Emphasis added.]

The NOPD’s only argument is a legal one: that the language appearing to mandate the completion of the investigation within sixty days was intended to be directory in nature rather than compulsory. The NOPD recognizes that this Court has already ruled to the contrary in Davis v. New Orleans Police Department, 04-10232 (La.App. 4 Cir. 2/2/05), 899 So.2d 37, writ denied, 05-0941 (La.5/20/05), 902 So.2d 1057, but asks this Court to overrule that prior decision. The NOPD must look to the legislature to change the statute if a different result is to be reached in future cases.

This result is consistent with the result reached in Bannister v. Department of Streets, 95-0404 (La.1/16/96), 666 So.2d 641, and Christoffer v. New Orleans Fire Department, 99-2658 (La.App. 4 Cir. 3/15/00), 757 So.2d 863.

In Bannister, the Supreme Court found that the rule that the Civil Service Commission “shall” decide appeals within ninety days to be directory rather than mandatory as the purpose of the law “is the protection of the government by guiding its officials rather than granting rights to affected private citizens.” Id., at p. 5, 666 So.2d at 646.

This observation by the Supreme Court in Bannister must be contrasted with the intent of the 60-day investigative period in the instant case which was designed to protect the interests of “affected private citizens” in the persons of individual police officers according to the legislative history which the NOPD was kind enough to annex to its brief. The origins of the 60-day limit can be found in the following testimony before the Louisiana Legislature in 2001 in connection with House Bill No. 1847:

Mr. Noel Salamoni, representing Baton Rouge Police Union, P.O. Box 4352, Baton Rouge, La 70021, testified in support of the bill. He explained that internal affairs investigations are open-ended and can leave an officer under a cloud of suspicion for an indeterminate period of time. He said the proposed bill would require an internal investigation of a law enforcement officer to be completed within a specified amount of time.

| aThus, the purpose of the law is to protect “affected private citizens,” i.e., police officers, from abusive open-ended investigations. Therefore, we read the Supreme Court’s reasoning in Bannister as supportive of the mandatory interpretation of the 60-day limit now before this Court.

For the same reason, we find no conflict with this Court’s prior decision in Christof-fer which cites to Bannister concerning the significance of determining whether the purpose of the law is the protection of the government rather than granting rights to affected private citizens when deciding whether the law should be given a mandatory as opposed to a directory effect. Christoffer, p. 3, 757 So.2d at 866.

The NOPD does not contend that the legislature does not have the authority to create a mandatory 60-day limit. Therefore, until such time as the legislature chooses to amend this limit we are compelled to give it a mandatory construction.

For the foregoing reasons, the ruling of the Civil Service Commission is affirmed.

AFFIRMED.


text:
    John JOHNSON, et al. v. ORLEANS PARISH SCHOOL BOARD, et al.
    No. 2005-CA-1488.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 9, 2006.

      John Y. Pearce, Lawrence G. Pugh, III, Miehaela E. Noble, Montgomery Barnett Brown Read Hammond & Mintz, New Orleans, LA, for Edward Levy Metals, Inc. and Delta By-Products, Inc.
    Thomas M. Nosewicz, Jones Walker Waechter Poitevent Carrere & Denegre, L.L.P., NEW ORLEANS, LA, for Third Party Defendant/Appellee, BFI Waste Systems of North America, Inc.
    Nannette V. Jolivette, Douglas L. Grundmeyer, Jonathan C. McCall, Katherine L. Young, Chaffe McCall, L.L.P., New Orleans, LA, for Defendant/Appellant, Orleans Parish School Board.
    Michael A. Chernekoff, Jones Walker Waechter Poitevent Carrere & Denegre, L.L.P., New Orleans, LAl, for Third Party Defendant-Appellee, Public Belt Railroad Commission of The City of New Orleans.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge JAMES F. McKAY III and Judge LEON A. CANNIZZARO JR.).
   JOAN BERNARD ARMSTRONG, Chief Judge.

LThe Orleans Parish School Board (the School Board), defendant and third party plaintiff, appeals from a judgment granting Exceptions of No Cause of Action and No Right of Action filed by third-party defendants, Edward Levy Metals, Inc. (Levy), Delta By-Products, Inc. (Delta), BFI Waste Systems of North America, Inc. (BFI) and the Public Belt Railroad Commission of the City of New Orleans (the Public Belt). For the reasons that follow, we affirm the trial court judgment.

The factual background of this case is fully detailed in this Court’s earlier opinions in Johnson v. Orleans Parish School Board, 2003-0828, 2003-1573 (La.App. 4 Cir. 11/3/04), 890 So.2d 579 [Johnson II ] and in the class certification appeal, Johnson v. Orleans Parish School Board, 2000-0825 (La.App. 4 Cir. 6/27/01), 790 So.2d 734 [Johnson I ]. The original plaintiffs in these consolidated cases are current and former residents of three housing developments in New | a Orleans, certain current and former owners and employees of neighboring businesses and certain current and former students and employees of Mo-ton School, an elementary school operated at all relevant times by the School Board. The plaintiffs filed suit against the City of New Orleans, the Housing Authority of New Orleans (HANO) and the School Board alleging damages resulting from the construction of a community on a former municipal landfill site known as the Agriculture Street Landfill (ASL). According to the suit, in the 1960s and 1970s, the defendants developed the site without first having removed hazardous substances from the site and warned the plaintiffs of the existence of the hazard. By Second Amended Petition, the plaintiffs alleged that the School Board’s liability devolved upon its having selected the ASL as the site for development of Moton School, an elementary school. The class plaintiffs allege that the School Board proceeded to grant construction contracts for the school “despite receiving information from engineering and soil analysis firms that soil sampling studies had confirmed the presence in the soil of numerous heavy metals, several known carcinogens and other organic materials in concentrations exceeding recommended levels for any use, including construction and operation of a school.” The Second Amended Petition describes the School Board’s breach of its duty to see that the ASL site was properly and adequately remediated and prepared for use as an elementary school. The class plaintiffs also claim that the School Board failed adequately to monitor and supervise its employees and contractors to ensure that losoil excavated during the school’s construction was completely and properly removed from the neighborhood.

Nearly ten years after the plaintiffs filed the original suit, the defendants, including the School Board, filed third party demands for direct damages, indemnity and contribution against BFI, the Public Belt, CFI Industries, Inc. (CFI), IPC, Inc., and the Port of New Orleans alleging that they or their corporate antecedents improperly hauled and disposed of hazardous materials at the landfill site prior to closure of the landfill decades prior to development of the ASL site as a school.

All third party defendants filed exceptions, inter alia, of no cause of action and no right of action that were granted by the trial court and affirmed by this Court in Johnson II. Having found that the trial court correctly granted the exceptions, this Court then considered the School Board’s opportunity to amend its third party demands pursuant to La.C.C.P. art. 934, holding:

While some of the third party defendants in this case argue persuasively that the objections to the third party demands cannot be cured by amendment, out of an abundance of caution, we will allow the third party plaintiffs the opportunity to amend their third party demands. We do so with the admonition that speculating on unwarranted facts will not defeat an exception of no cause of action. [Emphasis added; citation omitted.]

We then remanded the case with instructions to permit amendments of the third party demands within thirty days of this judgment and pretermitted the issue of no right of action.

|4Subsequently, Levy and Delta adopted and urged CFI’s exceptions of no cause of action, no right of action and prescription. The trial court heard and granted the exceptions of no cause of action and no right of action. On appeal, this Court held:

We find that there is nothing material to this appeal to distinguish the allegations made against the third party defendants in Johnson II from those made against Levy Metals and Delta in the instant appeal. Accordingly, we adopt the standards regarding review of the exception of no cause of action set forth in Johnson II ...
In the instant case, as in Johnson II and for the same reasons, “we conclude that the trial court did not err in granting the exceptions of no cause of action because the third-party demands do not allege facts sufficient to identify a legal duty owed by the third-party defendants to the plaintiffs or the third party plaintiffs.” As was the case in Johnson II, there are no allegations that the third-party defendants in the instant appeal, Levy Metals and Delta, knew or should have known that an area designated as a landfill would years later become the site of a residential neighborhood and school.
Also, as was stated in Johnson II, we need not reach the issue of whether Levy Metals or Delta fall within the definition of proprietor under La.C.C. art. 667 because there is no allegation that any of the plaintiffs lived in the vicinity of the landfill during its operation.

Johnson v. Orleans Parish School Board, 2004-1352, pp. 4-5 (La.App. 4 Cir. 2/16/05), 897 So.2d 812, 815-16 [Johnson III] We remanded with the same instructions as in Johnson II.

In response to our opinions, the School Board alone filed an amended third party demand against CFI Industries, Inc., Public Belt, BFI, the Port of New |¡¡Orleans, Levy, Delta and Metals Detroit, Inc. On March 18, 2005, the School Board alone filed a second amended third-party demand against Levy and Delta.

In reviewing the judgment of the district court relating to an exception of no cause of action, appellate courts should conduct a de novo review because the exception raises a question of law and the lower court’s decision is based solely on the sufficiency of the petition. Johnson II at p. 5, 890 So.2d at 582.

In the first amended third party demand, filed after rendition of Johnson II, the School Board alleges that:

(1) in 1949 Delta’s president and one of its shareholders purchased property designated as Square 1809 allegedly located within “the boundaries of the class action” where “some or all of the salvage operations occurred.” Furthermore, Delta continues to own part of Square 1809;

(2) because the third party defendants improperly and/or illegally disposed of toxic materials at the ASL site they should have known this activity would have caused harm to others and environmental damage through leakage, seepage, migration or other movement to surrounding properties;

(3) while the transport and disposal operation was going on (we note that this occurred decades before construction of the school) “certain of the plaintiffs ... were living on what is now considered the ASL or what was designated on the National Priorities List as a Superfund site and so third-party defendants were on notice that this area would be developed as a residential community and, therefore, |ficould reasonably foresee that a school could one day be built in the neighborhood and that their activity and behavior could cause harm;

(4) third party defendants should have known that fumes from natural decomposition could emanate and migrate to neighboring property or damage subsurface soil and groundwater ultimately harming human health and the environment;

(5) third party defendants owed a duty to plaintiffs and third-party plaintiffs to use the ASL only for its designated purpose, but “sneaked in” potentially toxic and/or hazardous materials, saving disposal costs.

In the second amended third party demand, filed after the rendition of Johnson III, the School Board alleged against all third party defendants collectively that:

(1) they illegally generated or transported wastes to the former ASL;
(2) the Environmental Protection Agency’s inspection of samples from the former landfill detected in most samples polyaromatic hydrocarbons, lead and arsenic in concentrations above the federal guidelines;
(3) they improperly or illegally disposed of material with elevated levels of toxicity at the site and should have known that such activity would cause harm to others or to the environment;
(4) they were unjustly enriched because the improper disposal of toxic waste avoided higher costs associated with proper hazardous waste disposal;
(5) they had a duty to use the landfill properly; and
(6) they had a duty to disclose information regarding the materials that were deposited at the landfill.

|7The School Board reasserted and incorporated by reference all prior pleadings filed in this matter and the Third Party Demands filed by the City of New Orleans and HANO.

CFI and IPC filed exceptions of no cause of action and no right of action in response to the amended third party demands against them. The trial court granted these exceptions, and we affirmed in Johnson IV, dismissing the third party demands against CFI and IPC with prejudice.

We adopt and reiterate the standard regarding review of the exception of no cause of action set forth and adopted in Johnson II, Johnson III and Johnson IV. In the context of a peremptory exception of no cause of action, a cause of action consists of the operative facts that give rise to a plaintiffs right judicially to assert the cause of action against the defendant. Everything on Wheels Subaru, Inc. v. Subaru South, Inc., 1991-2708 (La.1993), 616 So.2d 1234. The function of the peremptory exception of no cause of action is to test the legal sufficiency of the petition, which is done by determining whether the law affords a remedy on the facts alleged in the pleading. Johnson II, at p. 4, 890 So.2d at 582. For purposes of considering this exception, the court must accept properly pleaded facts as true. Jackson v. State ex rel. Dept. of Corrections, 2000-2882 p. 3 (La.5/15/01), 785 So.2d 803, 806. The ultimate issue to be resolved on the trial of this exception is whether, in light of the facts viewed most favorably for the plaintiff and with all doubts resolved in the plaintiffs favor, the petition states a valid cause of action. 8City of New Orleans v. Board of Com’rs of Orleans Levee Dist., 93-0690, p. 28 (La.7/5/94), 640 So.2d 237, 253.

Because our opinions in Johnson II and Johnson III constitute the law of the case, our essential inquiry is whether the amended third party demands allege facts that would create a duty on the part of BFI, Public Belt, Levy and/or Delta to the plaintiffs. We note the caveat announced in Johnson II: “[Speculating on unwarranted facts will not defeat an exception of no cause of action.” Johnson II, at p. 7, 870 So.2d at 583. Furthermore, The petition must set forth material facts upon which a cause of action can be based, and conclusions of law or fact will not be considered. Butler v. Reeder, 1993-764 (La.App. 5 Cir. 3/16/94), 635 So.2d 1206, 1207. Mere conclusions unsupported by facts do not set forth a cause or right of action. Montalvo v. Sondes, 1993-2813 (La.5/23/94), 637 So.2d 127, 131. Allegations purporting to be factual but which are merely self-serving conclusions must be disregarded. Delta Bank and Trust Co. v. Lassiter, 66156 (La.4/7/80), 383 So.2d 330.

Our review of the amended third party demands and the pleadings incorporated thereunto by reference, in the light most favorable to the School Board, convinces us that these pleadings add no substantial facts that would give rise to a finding of a duty on the part of these third party defendants to the plaintiffs or to the School Board.

In Johnson II, this Court made clear:

[T]he third party demands do not allege facts sufficient to identify a legal duty owed by the third party defendants to the plaintiffs or the third party plaintiffs. According to the facts alleged in the third party demands, the waste disposal or salvaging companies later acquired by third party defendants either caused or contributed to the contamination of the Agriculture Street Landfill with | nhazardous substances. There are no allegations that the third party defendants knew or should have known that an area designated as a landfill and used by them as such would years later become the site of a residential neighborhood and school. Accepting the allegations of fact in the third party demands as true, the third party plaintiffs have not shown that the third party defendants owed a duty to plaintiffs, and therefore, third party plaintiffs have no claim for contribution or indemnity against the third party defendants.

Johnson II, at pp. 5-6, 890 So.2d at 582.

We noted in Johnson III that the ASL was not owned by the City, HANO or the School Board at the time it was operated as a landfill. It was leased from the Lem-le family. Delta operated a salvage facility on a portion of the ASL property from 1949 until the ASL was closed in 1958. Levy never owned any of the landfill property. Johnson III, at p. 2, 897 So.2d at 814.

We shall consider first the individual allegations against each of the third party defendants. The School Board alleges in its original third party demand that Levy “knew or should have known of the nature, type and quantity of wastes disposed of at the Agriculture Street Dump site.” It alleges that Delta, until at least 1959, “handled wastes that had been disposed of at the Agriculture Street Dump, and knew or should have known of the type, quantity and nature of wastes disposed of at the Agriculture Street Dump.” It alleges that Public Belt delivered or transported waste to the ASL beginning in 1914 or earlier. It alleges that BFI was the corporate successor to companies that transported waste to the landfill in the 1950s. The original third party demand claims that these “acts, omissions and/or negligence caused or contributed to some or all of the alleged contamination of the Agriculture Street Dump site with allegedly hazardous chemicals.” Simply stated, the gravamen of the original demand was that the third party defendants |inknew or should have known that the contamination which they caused or to which they contributed could cause damage to persons. These allegations were found to be insufficient to state a cause of action in this Court’s prior opinions, and that is the law of the case.

We find no factual allegations to support the conclusory allegation that the third-party defendants illegally and/or improperly dumped toxic materials at the ASL site. While the School Board makes an argument for liability for ultrahazardous activity, the third party demands contain no factual basis for the conclusion that operating a salvage plant at a municipal landfill constitutes an ultrahazardous activity. The School Board has provided no authority for such a conclusion, and our independent research has not disclosed such statutory or jurisprudential authority. The third party demands allege that “hazardous” materials were disposed of at the ASL; however, “hazardous” does not equate to “ultrahazardous.” Bartlett v. Browning-Ferris Industries, Chemical Services, Inc., 1996-0218 (La.App. 3 Cir. 11/6/96), 683 So.2d 1319, 1321-22; Burton v. Conoco Offshore, Inc., 1993-0599 (La.App. 5 Cir. 2/9/94), 631 So.2d 1374.

In the amending third party demands, the School Board does not add material facts to the deficient allegations of the original demand. The School Board provides no factual basis for its conclusory allegations that the third party defendants should have predicted somehow that a community and a school would someday be built on the ASL site and, concomitantly, that the site would not have lost its toxicity through either the decompositional forces of nature or the remediation of subsequent developers of the property for residential, commercial and educational use. The amended demand merely notes that some of the plaintiffs in unspecified numbers and at unspecified times lived on an unspecified area that |nwas “considered” to be a part of the former ASL site. These facts do not in any way support the conclusion that the exceptors knew or should have known that there would be subsequent development of this nature. The School Board alleges no facts to indicate that any of the exceptors were in any way or to any extent involved in the decision to develop the land over the prior landfill.

We find no basis for the conclusion that the exceptors had a reasonable duty to foresee that the site would be developed without having been tested for suitability for that development. Specifically, there is no duty on the part of the exceptors to prevent the School Board, a party as to which none of them had privity of any kind, from placing a school on the site of a landfill that, at the time the School Board began construction, had lain fallow for more than two decades. No one has a duty to control the conduct of a third person so as to prevent him from causing physical harm to another unless a special relationship exists. Harris v. Pizza Hut of Louisiana, Inc., 1984-0304 (La.9/10/84), 455 So.2d 1364, cited in Brou v. Orleans Parish Criminal Sheriff's Office, 2003-1760 (La.App. 4 Cir. 2/16/05), 897 So.2d 817, writ denied, 2005-0764 (La.5/6/05), 901 So.2d 1105. There is no allegation that any of the exceptors had such a special relationship with the School Board. Furthermore, there is nothing in the petition to suggest that the exceptors were in a position to require the School Board to engage in site remediation prior to construction of Moton School. Likewise, there is no allegation that the School Board gave notice to any of the exceptors or made demand upon any of them to identify the materials that had been transported to the ASL or to perform remedial work at the site prior to construction of the school.

The School Board contends that by alleging that “certain plaintiffs in the original demand were living on what is now considered the ASL or what was | ^designated on the National Priorities List” the third party defendants somehow had notice that ASL would become an elementary school site. The claim against the School Board relates to the development of Moton School. The mere fact that some persons may have been living at some unspecified location “considered” part of the ASL does not lead to the conclusion that the exceptors anticipated that a school would be built where they were carrying on their operations. Furthermore, the School Board does not allege with any particularity whether any of the original plaintiffs to whom it refers lived within the borders of the ASL certified for the purposes of the class action during the class-certified time period. Clearly, there is nothing in the third party demands to indicate that prior to the closure of the ASL decades before the development of Moton School the exceptors had a legal duty to the plaintiffs to foresee that a school would be built on the site AND that the developer of the school would not properly remediate the ASL site prior to development, AND that the developer would not notify the school community of the potential hazard caused by the developer’s failure to remediate the site. The School Board’s allegations are precisely the sort of self-serving, conclusory statements our courts have rejected consistently as bases for a cause of action.

In Johnson II, this Court ruled that the School Board did not state a cause of action under former La.C.C. art. 667, which sets forth the reciprocal duties of vicinage. The plaintiffs’ original claim was that their damage occurred when the ASL was developed as a residential community and elementary school. In response to Johnson II, the School Board made the following allegation:

On October 6, 1949, [the president of CFI’s predecessor], [Delta’s president and a Delta shareholder] purchased property within the boundaries of this class action, ... where some or all of the salvage operations | isoccurred. [Amended Third Party Demand; paragraph 3; Second Amended Third Party Demand, paragraph 4]
[W]hile the third party defendants were transporting and disposing of waste with high levels of toxins and potentially hazardous waste at the ASL, certain of plaintiffs in the original demand were living on what is now considered the ASL or what was designated on the National Priorities List as a Superfund site ... [Amended Third Party Demand, paragraph 6; Amended Third Party Demand, paragraph 7]

Article 667 of the Louisiana Civil Code establishes certain reciprocal rights and duties of neighboring landowners. It is not a general tort statute, but provides specific reciprocal rights and obligations arising as between and among owners of adjacent parcels of land. However, the amended demands do not allege facts supporting the conclusion that the School Board or any members of the plaintiff class were landowners at the time the exceptors conducted their salvage operations. Such a proprietary interest is the sine qua non of a cause of action under this Code article. See, Stone, Tort Doctrine in Louisiana: The Obligations of Neighborhood, 40 Tul. L.Rev. 701, 711 (1966); Roberts v. Cardinal Services, Inc., 266 F.3d 368, 387 (5th Cir.(La.) 2001), certiorari denied, 535 U.S. 954, 122 S.Ct. 1357, 152 L.Ed.2d 353 (2002).

We note initially that the School Board’s amendment does not address its claims against Levy, BFI and Public Belt. Insofar as the amended demands seek to satisfy the Johnson II requirements with respect to Delta, we note that the amended demands do not allege that Delta’s president and shareholder purchased their interests in the subject property on behalf of the exceptor, Delta. In paragraph 4 of the amended demand and paragraph 5 of the second amended demand, the School Board alleges, “Delta continues to own part of Square 1809 to this date.” However, there is no allegation indicating when and how Delta obtained this ownership interest. There simply is no allegation that any of the exceptors owned |14the subject property during the relevant class period. The amended demands are devoid of facts to support the conclusion that any one of the exceptors, or the School board or any of the plaintiff class members during the relevant class period was an owner of the property or stood in the shoes of the owner.

In order to state a cause of action under La.C.C. art. 667, the School Board must show ownership of neighboring estates on the part of itself, the class plaintiffs and the exceptors at the relevant time. As this Court held in Johnson II:

[T]he alleged damage to the plaintiffs occurred when the landfill site was later converted to a residential community and school.
Johnson II at p. 6, 890 So.2d at 583.

This the School Board has not done.

ELM and Delta argue convincingly as well that they are not liable to the School Board for indemnity against the alleged injuries to members of the plaintiff class because these damages were caused by an unforeseen intervening event. See Gansloser v. Kansas City Southern Ry. Co., 13,036 (La.App. 2 Cir. 11/01/76), 339 So.2d 498, 500. They argue that they reasonably could not have anticipated or foreseen that decades after they had ceased any operations on or related to the ASL that third parties, for whom they had no responsibility and with whom they had no privity, would develop the former ASL into a residential neighborhood and school -without having performed due diligence investigations concerning the property and subsequent adequate remediation, containment, cleanup and waste removal prior to development.

We are compelled to conclude on the face of these third party demands, that the School Board has not alleged facts to support a duty on the part of the exceptors. Absent this duty, under Louisiana’s duty-risk theory of negligence, the Unoriginal, amended and second amended third party demands filed by the School Board against these third party defendants do not state a cause of action in negligence or for breach of the obligations of vicinage.

The School Board contends that it has stated a cause of action for contribution under La.C.C.P art. 1111 and La.C.C. art. 2324. The Code of Civil Procedure allows the defendant in a principal action by petition to bring in any person, including a codefendant, who is or may be liable to him for all or part of the principal demand. The principal demand in this case claims damages caused by the School Board’s action in developing an elementary school on the ASL without having made proper due diligence inspections and tests of the environmental quality of the area and taking proper steps toward remediation of environmental problems. The ex-ceptors did not act in concert with the School Board to develop the Moton School on the ASL property. Our review of the petition convinces us that there is no allegation that the exceptors caused the school to be developed on that site, causing damage to the class of plaintiffs.

Absent a contractual relationship between the school Board and the exceptors, under the circumstances pleaded by the School Board, there is no third party cause of action. In Wilson Industries, Inc. v. Atlas Production Services, Inc., 1996-0149 (La.App. 4 Cir. 6/5/96), 675 So.2d 1221, cited by the School Board, the plaintiff filed suit on open account for merchandise and/or services rendered. Atlas filed a third party demand against the owners of working interests in a mineral lease who allegedly breached a contract with Atlas for operation of oil and gas wells. According to the third party petition, the working interest owners contracted to pay for operations at the wells and to pay Atlas as operator, and the claims of Wilson, the original plaintiff, related to payment for goods and services Atlas l16incurred on behalf of the third party defendants, who refused to pay. We must distinguish this case on its facts, for unlike Atlas, the School Board had no contract with the exceptors in the instant case. Absent this contractual relationship, the Wilson case does not support a finding of a cause of action pursuant to La.C.C.P. art. 1111.

The School Board contends that the ex-ceptors are solidarily liable for the damages to the class plaintiffs because “but for” their having operated or disposed of materials at ASL, the class plaintiffs would have suffered no damage. However, the third party demands, as noted herein-above, do not allege any violation of statutory or other specific standard for disposal or transportation of non-ultrahazardous materials. To follow the logic suggested by the School Board, the manufacturer or deliverer of rat poison to a restaurant for use in vermin control would be responsible as a third party defendant for the negligent introduction of the poison by a restaurant employee into a meal served to the public. The law of this state simply does not provide for this type of liability. With respect to its claim under La.C.C.P. art. 1111, the School Board faces the same problem of lack of foreseeability that defeats its purported negligence action. Simply stated, in transporting and disposing of materials to the ASL, the exceptors could not have foreseen and had no duty to foresee or prevent the School Board’s construction of a school on the ASL site without prior investigation and remediation. Absent such a duty, there can be no liability; absent liability, there can be no solidarity of obligation.

An analogous situation arose in Spells v. Housing Authority of New Orleans, 1992-0399 (La.App. 4 Cir. 1/14/93), 612 So.2d 920. HANO tenants initiated a class action seeking a mandatory injunction to compel HANO to carry |17out an abatement program for lead based paint in its rental units pursuant to La.C.C. art. 2692 et. seq. (Lessor’s obligation to make repairs) and various statutes and regulations. This Court affirmed the trial court’s ruling dismissing a third party demand by HANO against a number of paint and lead pigment manufacturers, holding that the manufacturers did not share in that duty to the class plaintiffs. See also, Housing Authority of New Orleans v. Standard Paint and Varnish Company, 1992-0328 (La.App. 4 Cir. 1/14/93), 612 So.2d 916. Likewise, in the instant ease, the exceptors do not share in the School Board’s duty to the class plaintiffs to inspect and remediate property intended for use as a school.

Because we affirm the trial court’s judgment granting exceptions of no cause of action, the exceptions of no right of action are moot.

For the foregoing reasons, we affirm the judgment of the trial court dismissing the School Board’s third party demands against Edward Levy Metals, Inc., Delta By-Products, Inc., BFI Waste Systems of North America, Inc. and the Public Belt Railroad Commission of the City of New Orleans. As this Court ruled in Johnson IV, the School Board, having had ample opportunity to amend its pleadings through Johnson II and Johnson III, the dismissal is with prejudice.

AFFIRMED.

      . On July 22, 2005, the trial court certified its ruling as a final judgment for immediate appeal.

      . The School Board did not seek judicial review of Johnson II, which is the law of the case. An appellate court will not reconsider its earlier ruling on a subsequent appeal in the same case. Lejano v. Bandak, 1997-0388 (La.12/12/97), 705 So.2d 158, 168.

      . We are unable to determine as a certainty that this amended third party demand was filed within thirty days of our November 4, 2004 judgment. The record copy’s date stamp is illegible. However, the certificate of service shows that the School Board served a copy of the demand on counsel for all parties via facsimile on December 3, 2004. The ap-pellees do not contend that the pleading was untimely. Therefore, we shall treat the amended third party petition as timely filed.

      . Neither the president nor the shareholder is named as a third party defendant.

      . The third party demands filed by the City and HANO were dismissed, and neither the City nor HANO filed amended pleadings. This Court has already determined that those third party demands did not state a cause of action. Therefore, their inclusion by reference in the School Board's amended third party demand adds nothing pertinent to this appeal.

      . Johnson v. Orleans Parish School Board, 2005-0796 (La.App. 4 Cir. 3/22/2006), 929 So.2d 761.


author: PETERS, Judge.

text:
    STATE of Louisiana v. Robert C. GARNER.
    No. KA06-239.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 23, 2006.

      Don M. Burkett, District Attorney, Many, LA, for Appellee, State of Louisiana.
    William Jarred Franklin, Louisiana Appellate Project, Bossier City, LA, for Appellant, Robert C. Garner.
    Court composed of SYLVIA R. COOKS, OSWALD A. DECUIR, and JIMMIE C. PETERS, Judges.
   PETERS, Judge.

On July 20, 2006, this court issued a rule to show cause why this appeal should not be dismissed as being untimely perfected. In response, the defendant, Robert C. Garner, filed a brief arguing that this court should consider the trial court’s grant of his “Motion for OuWOf-Time Appeal And Appointment Of Appellate Counsel” as a valid order granting him an out-of-time appeal. In the alternative, he requested that this court to remand the case so that he may amend his motion to comply with the law relating to post-conviction relief applications. We hereby order that the defendant’s motion for appeal be treated as an application for post-conviction relief and remand the matter to the trial court for further proceedings.

After a jury found the defendant guilty of manslaughter, in violation of La.R.S. 14:31, the trial court, on June 24, 2004, sentenced him to thirty years at hard labor. On September 7, 2004, he filed a pro se motion for appellate counsel, which was not granted. On November 15, 2005, he filed the motion now before us, and the trial court granted the motion.

Pursuant to La.Code Crim.P. art. 914, a motion for appeal must be asserted no later than thirty days after either the rendition of the judgment from which the appeal is taken or the ruling on a motion to reconsider sentence filed pursuant to La.Code Crim.P. art. 881.1. Because the defendant failed to file his motion for appeal within the time provided by La.Code Crim.P. art. 914, his conviction and sentence became final, and once that occurred, he could no longer obtain an appeal by simply filing a motion for appeal. State v. LaBiche, 96-433 (La.App. 3 Cir. 7/31/96), 680 So.2d 77. Thus, the defendant must first obtain reinstatement of his right to appeal by way of a properly filed application for post-conviction relief. Id; State v. Dixon, 00-516 (La.App. 3 Cir. 6/7/00), 768 So.2d 99; State v. Counterman, 475 So.2d 336 (La.1985).

In Dixon, this court stated:

I;,State v. Counterman, 475 So.2d 336 (La.1985) sets forth the procedure which should be followed to obtain the right to file an out-of-time appeal. In Counterman, the defendant was sentenced on February 10, 1983. No appeal was filed within the time period set forth in Article 914. On April 10, 1984, the defendant filed a motion for an out-of-time appeal. The trial court granted the motion without a hearing and without affording the district attorney an opportunity to respond to the motion. The First Circuit Court of Appeal dismissed the appeal “on the basis that the trial court was without authority or jurisdiction to grant an out-of-time appeal on an ex parte motion.” Id. at 338. The defendant filed a motion for out-of-time appeal with the court of appeal, which was denied. The defendant then filed a motion for out-of-time appeal with the supreme court. The supreme court held that the defendant lost his right to obtain an appeal by simply filing a motion for an appeal after the time delays had run — -not because the trial court was divested of jurisdiction but “because the conviction and sentence became final when the defendant failed to appeal timely.” Id. (footnote omitted). The supreme court held that the proper procedure for obtaining an out-of-time appeal is by filing an application for post conviction relief pursuant to La.Code Crim.P. arts. 924-930.7. [footnote omitted.] In so ruling, the supreme court found several advantages to following this procedure. Primarily, the district attorney would be allowed an opportunity to oppose a request, and the defendant would be afforded an evidentiary hearing to prove his allegations.
An out-of-time appeal is appropriately granted when the trial court has determined it is warranted “after due consideration of such factors as the length of the delay in defendant’s attempt to exercise the right and the adverse effect upon the state caused by the delay.” Id. at 340. The supreme court ultimately concluded that the defendant’s motion for an out-of-time appeal filed in the trial court should have been treated as an application for post conviction relief and remanded the case to the trial court for consideration as such. Following Counterman, we find that Defendant’s January 18, 2000 motion for appeal should have been treated by the trial court as an application for post conviction relief requesting an out-of-time appeal. We note that La.Code Crim.P. art. 930.8 now provides that the time delays for filing an application for post conviction relief are applicable to requests for out-of-time appeals, unless an exception is made. Therefore, Defendant shall be permitted an opportunity to amend his motion to comply with the requirements of Articles 924-930.8. By doing so, the State will then be given an opportunity to contest the granting of an appeal.

Dixon, 768 So.2d at 101-102.

The defendant’s appeal is hereby dismissed and this matter is remanded to the trial court for further proceedings. The defendant is to be permitted an opportunity to amend his motion for appeal to comply with the requirements of La.Code Crim.P. parts. 924 through 930.8, and the State of Louisiana is to be given an opportunity to contest the granting of an out-of-time appeal.

APPEAL DISMISSED AND REMANDED WITH INSTRUCTIONS.


author: DECUIR, Judge.

text:
    Antonio G. RODRIGUEZ v. INTEGRITY CONTRACTING, et al.
    Nos. 06-766.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 30, 2006.

      Janice Barber, The Janice H. Barber Law Corporation, Lafayette, LA, for Plain-tiffAppellee, Antonio Rodriguez.
    Robert Martina, Gallow & Jeffcoat, L.L.P., Lafayette, LA, for PlaintiffAppel-lee, Integrity Contracting.
    Deborah E. Lamb, Taylor, Porter, Brooks & Phillips, Baton Rouge, LA, for Defendant/Appellant, Louisiana Worker’s Compensation Corporation.
    Kirk Landry, Keogh, Cox & Wilson, Ltd., Baton Rouge, LA, for Defendant/Ap-pellee, Vaughan Roofing & Sheet Metal, Inc.
    Sylvia Fordice, Louisiana Department of Justice, Lafayette, LA, for Defendant/Ap-pellee, State of Louisiana.
    Court composed of SYLVIA R. COOKS, OSWALD A. DECUIR, and JIMMIE C. PETERS, Judges.
   DECUIR, Judge.

hThe defendant-appellee, Vaughan Roofing and Sheet Metal, Inc., moves to dismiss the appeal of the Louisiana Worker’s Compensation Corporation because it was taken from a non-appealable judgment. For the reasons stated below, we grant the appellee’s motion to dismiss the appeal.

This is a consolidated worker’s compensation case wherein Antonio Garcia Rodriguez filed claims against his alleged employers, Integrity Contracting; Vaughan Roofing and Sheet Metal, Inc.; and the State of Louisiana, and against the Louisiana Worker’s Compensation Corporation (LWCC). Vaughan Roofing filed a third-party demand for indemnification against LWCC.

Trial was originally set for October 27, 2005. However, on October 28, 2005, the trial court issued a minute entry continuing trial and stating that trial would be held separately on the insurance coverage issues and the remaining issues. Following a severed trial consisting of the insurance coverage issues, the worker’s compensation court issued a judgment finding that the LWCC had an insurance policy covering Jason Stanton d/b/a Integrity Contracting on the date of the claimant’s accident. The trial court signed the judgment on February 7, 2006.

LWCC filed an appeal from this judgment on March 16, 2006. This appeal was lodged with this court on June 13, 2006. The appellee’s motion to dismiss appeal was filed on June 21, 2006.

We find the judgment appealed is not a judgment finding liability between the parties in a bifurcated trial as authorized by La.Code Civ.P. art. 1562 nor is the judgment a partial final judgment provided for in La.Code |2Civ.P. art. 1915. Therefore, this judgment is not a final, appealable judgment pursuant to La.Code Civ.P. art. 2083. Accordingly, we dismiss the appellant’s appeal at appellant’s cost.

MOTION TO DISMISS APPEAL GRANTED.


text:
    Antonio GARCIA v. VAUGHAN ROOFING & SHEET METAL, INC., et al.
    No. 06-960.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 30, 2006.
    Janice Barber, The Janice H. Barber Law Corporation, Lafayette, LA, for Plairi-tiff/Appellee, Antonio Rodriguez.
    Robert Martina, Gallow & Jeffcoat, L.L.P., Lafayette, LA, for Plaintiff/Appel-lee, Integrity Contracting.
    Deborah E. Lamb, Taylor, Porter, Brooks & Phillips, Baton Rouge, LA, for Defendant/Appellant, Louisiana Worker’s Compensation Corporation.
    Kirk Landry, Keogh, Cox & Wilson, Ltd., Baton Rouge, LA, for Defendant/Ap-pellee, Vaughan Roofing & Sheet Metal, Inc.
    Sylvia Fordice, Louisiana Department of Justice, Lafayette, LA, for Defendant/Ap-pellee, State of Louisiana.
    Court composed of SYLVIA R. COOKS, OSWALD A. DECUIR, and JIMMIE C. PETERS, Judges.
   DECUIR, Judge.

For the reasons assigned in our opinion in the appeal bearing our docket number 06-766, 938 So. 2d 231 on our own motion we hereby dismiss the appellant’s appeal at appellant’s cost. This court lacks appellate jurisdiction of this matter.

APPEAL DISMISSED.


text:
    INTEGRITY CONTRACTING v. LOUISIANA WORKERS COMPENSATION CORPORATION.
    No. 06-961.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 30, 2006.
    Janice Barber, The Janice H. Barber Law Corporation, Lafayette, LA, for Plaintiff/Appellee, Antonio Rodriguez.
    Robert Martina, Gallow & Jeffcoat, L.L.P., Lafayette, LA, for Plaintiff/Appel-lee, Integrity Contracting.
    Deborah E. Lamb, Taylor, Porter, Brooks & Phillips, Baton Rouge, LA, for DefendanVAppellant, Louisiana Worker’s Compensation Corporation.
    Kirk Landry, Keogh, Cox & Wilson, Ltd., Baton Rouge, LA, for Defendant/Ap-pellee, Vaughan Roofing & Sheet Metal, Inc.
    Sylvia Fordice, Louisiana Department of Justice, Lafayette, LA, for Defendant/Ap-pellee, State of Louisiana.

      Court composed of SYLVIA R. COOKS, OSWALD A. DECUIR, and JIMMIE C. PETERS, Judges.
   DECUIR, Judge.

For the reasons assigned in our opinion in the appeal bearing our docket number 06-766, 938 So.2d 231 on our own motion we hereby dismiss the appellant’s appeal at appellant’s cost. This court lacks appellate jurisdiction of this matter.

APPEAL DISMISSED.


author: PAINTER, Judge.

text:
    STATE of Louisiana v. Gary Paul JOSEPH.
    No. KA06-962.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 6, 2006.
    Earl J. Taylor, District Attorney, Opel-ousas, LA, for Appellee, State of Louisiana.
    Gary Paul Joseph, pro se.
    Court composed of ELIZABETH A. PICKETT, BILLY H. EZELL, and J. DAVID PAINTER, Judges.
   PAINTER, Judge.

On December 5, 2000, Defendant-Appellant, Gary Paul Joseph, pled guilty to possession of cocaine with intent to distribute. The Defendant was sentenced to serve twenty-five years at hard labor, the first five years to be served without benefit of parole, probation or suspension of sentence. The Defendant appealed and this court affirmed his sentence on December 12, 2001. State v. Joseph, an unpublished opinion bearing docket number 01-862 (La.App. 3 Cir. 12/12/01).

The Defendant filed a “Motion to Withdraw Plea of Guilty” on February 1, 2006. On May 15, 2006, the trial court issued a Per Curiam in which Defendant’s motion to withdraw guilty plea was denied as untimely. The Defendant filed a “Notice of Intent to Appeal” the denial of the motion to withdraw guilty plea. On June 6, 2006, the trial court signed an order granting the Defendant an appeal.

On August 1, 2006, this court issued a rule to show cause why the appeal in this case should not be dismissed as the judgment at issue is not appealable. In response to the rule to show cause, Defendant submitted a supervisory writ application to this court, apparently acknowledging that the appropriate procedural vehicle for seeking review of a judgment denying a motion to withdraw guilty plea is an application for supervisory writs.

Accordingly, the appeal in this case is hereby dismissed.

APPEAL DISMISSED.


author: SAUNDERS, Judge.

text:
    Robert L. GAUTHIER, Curator, v. CARENCRO NURSING HOME, INC. d/b/a Evangeline Oaks Guest House.
    No. 06-893.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 20, 2006.
    Nicholas Gachassin, Jr., Renee Marie Credeur, Gachassin Law Firm, Lafayette, LA, for Defendant/Appellant, Carenero Nursing Home, Inc.
    Cliffe Edward Laborde, III, Jennie Porche Pellegrin, Laborde & Neuner, Lafayette, LA, for PlaintiffAppellee, Robert L. Gauthier.
    Court composed of JOHN D. SAUNDERS, JIMMIE C. PETERS, and BILLY H. EZELL, Judges.
   SAUNDERS, Judge.

11 This court issued a rule to show cause directed to the defendant-appellant, Car-enero Nursing Home, Inc. d/b/a Evangeline Oaks Guest House, to show cause by brief only why the appeal in the above captioned matter should not be dismissed as having been taken from a non-appeal-able, interlocutory order. For the reasons given herein, we dismiss the appeal, but we hereby grant the defendant time within which to perfect a proper writ application from the ruling at issue.

The plaintiff brought the instant suit against the defendant seeking an award of damages allegedly resulting from the rape of a patient at the defendant’s facility perpetrated by one of its employees during the course of their employment with the defendant. The defendant responded to the plaintiffs action by filing a dilatory exception of prematurity arguing that the plaintiff must first present this claim to a medical review panel prior to bringing suit in district court. The defendant also raised an exception of no cause of action, non-joinder of a party pursuant to La.Code Civ.P. arts. 641 and 642, and a motion to strike. At the conclusion of the hearing on the exceptions and motion on January 30, 2006, the trial court denied them. A judgment in conformity with this ruling was signed by the trial court on February 10, 2006.

On February 22, 2006, the defendant filed a motion for a suspensive appeal from the trial court’s ruling. The trial court granted this motion on this date.

Upon the lodging of the record, this court issued, sua sponte, an order for the defendant to show cause why the appeal should not be dismissed. The defendant filed a response to this court’s rule, and the plaintiff has filed an | ?,opposition in response to the defendant’s brief.

The legislature amended La.Code Civ.P. art. 2083 by 2005 La. Acts 205. The amended statute took effect on January 1, 2006. This statute now reads:

A. A final judgment is appealable in all causes in which appeals are given by law, whether rendered after hearing, by default, or by reformation under Article 1814.
B. In reviewing a judgment reformed in accordance with a remittitur or additur, the court shall consider the reasonableness of the underlying jury verdict.
C. An interlocutory judgment is ap-pealable only when expressly provided by law.

The defendant contends in brief that the jurisprudence has held appealable, judgments denying an exception of prematurity filed in response to a plaintiffs failure to submit a medical malpractice claim to a medical review panel prior to filing suit in district court. However, the cases on which the defendant relies were decided prior to the 2005 amendment of Article 2083. This statute now clearly provides that an interlocutory judgment is appeal-able only when expressly provided by law. There being no law expressly providing for an appeal in this case, we find that the instant appeal must be dismissed.

However, the record reveals that the motion for appeal was filed within the thirty day time delay from the trial court’s ruling for seeking a return date on an application for supervisory relief. These delays now having run, we find that justice mediates toward affording the defendant time within which to perfect a proper writ application from the trial court’s ruling. Accordingly, we hereby order that the defendant be permitted to file a writ application in compliance with Uniform Rules— Courts of Appeal, Rule 4, seeking review of the subject judgment no later than October 20, 2006. The defendant is not required to file a notice of intent to seek writs nor obtain an order setting a|3return date pursuant to Uniform Rules — Courts of Appeal, Rule 4-3, as we hereby construe the motion for appeal as a timely filed notice of intent to seek a supervisory writ. However, a copy of this court’s opinion herein should be attached as an exhibit to the writ application, if filed.

APPEAL DISMISSED. DEFENDANT PERMITTED TO FILE AN APPLICATION FOR SUPERVISORY WRIT NO LATER THAN OCTOBER 20, 2006.