author: CALOGERO, C.J.,

text:
    Theresa TALBOT v. Rita GILL and Robert Gill.
    No. 2007-CC-1492.
    Supreme Court of Louisiana.
    July 17, 2007.
   In re Talbot, Theresa; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. A, No. 640-864; to the Court of Appeal, Fifth Circuit, No. 07-C-189.

Writ denied. Stay denied.

CALOGERO, C.J.,

concurs in the denial of the writ application and assigns reasons. While the court of appeal may have properly vacated the district court’s judgment, I believe the court of appeal acted prematurely in opining that the language of the lease contemplates only a one-time renewal. The issue of the lease renewal is better left for a determination by the court hearing the eviction proceedings.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana v. Shedran WILLIAMS.
    No. 2007-OK-1082.
    Supreme Court of Louisiana.
    July 18, 2007.
   In re Williams, Shedran; — Defendant; Applying for Request for Remand for Evi-dentiary Hearing on Motion for New Trial Based on Newly Discovered Evidence, Parish of E. Baton Rouge, 19th Judicial District Court Div. L, No. 06-04-0486.

This Court has received the record on appeal and filed it under number 07-KA-1407. However, briefing notices will not issue pending disposition in the district court of appellant’s motion for a new trial based on newly discovered evidence. Accordingly, this Court remands the case for the limited purpose of revesting jurisdiction in the district court to rule promptly on the merits of the motion for a new trial. The district court shall transmit its ruling, together with the transcripts of any hearings it deems appropriate to conduct on the motion, to this Court as a supplemental record on appeal.


text:
    STATE of Louisiana v. Vincent MARINELLO.
    No. 2007-KK-1513.
    Supreme Court of Louisiana.
    July 19, 2007.
   In re Marinello, Vincent; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. B, No. 06-6329; to the Court of Appeal, Fifth Circuit, No. 07-K-533.

Stay denied; writ denied.


text:
    Debbie B. ADAMS, et al. v. DIXIE CAB, INC., et al.
    No. 2007-CC-1485.
    Supreme Court of Louisiana.
    July 19, 2007.
   In re Lafayette City-Parish Consolidated Government; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Lafayette, 15th Judicial District Court Div. E, No. 2005-1495; to the Court of Appeal, Third Circuit, No. CW 07-00455.

Denied.

VICTORY, J., would grant.


author: KUHN, J. WELCH, J.,

text:
    Carlene T. KINCHEN v. The LIVINGSTON PARISH COUNCIL, et al.
    No. 2006 CA 0301.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 9, 2007.
    Writ Granted May 18, 2007.
    Robert H. Harrison, Jr., Denham Springs, Counsel for Plaintiff/Appellant Carlene Kinchen.
    D. Blayne Honeycutt, Denham Springs, Counsel for Defendants/Appellees The Livingston Parish Council, et al.
    Before: KUHN, GAIDRY, and WELCH, JJ.
   KUHN, J.

| ¡¿Plaintiff-appellant, Carlene Kinchen, appeals the trial court’s judgment, sustaining a peremptory exception raising the objection of no cause of action filed by defendants, the Livingston Parish Council (the Council); Michael Grimmer, as Parish President for Livingston Parish (the Parish); and Tracie Eisworth, as Director of Finance for the Parish, against the taxpayer’s- petition, which seeks class certification, damages, a refund, pre-judgment interest, expenses, court costs, attorney fees, and declaratory relief pronouncing the document transaction tax enacted by the Council is unconstitutional. We affirm, attaching as Appendix “A,” the perspicacious Judge Robert H. Morrison’s written reasons for judgment.

According to the allegations of her petition, on December 12, 2004, Kinchen paid $300.00 as a documentary transaction tax to the Parish. She subsequently filed this lawsuit on April 29, 2005, challenging the validity of Livingston Parish Ordinance 04-28, which enacted the tax. That ordinance, whose enforcement it is undisputed was subsequently discontinued, provided in relevant part:

(a) Levy, when due, collection.
Except as otherwise noted herein, a tax is hereby levied on the execution by the parties to any instrument, act, writing, or document, transferring or conveying immovable property located in the parish.
(b) The tax shall not be due and collectible unless and until the instrument, act, writing, or document shall have been recorded pin the public records of the recorder of conveyances and/or the recorder of mortgages. The tax shall be paid by the buyer or transferee of immovable property in the case of an act of cash sale, donation or other transfer of immovable property and the tax shall be collected and remitted to the entity or person designated by the parish council by each such person or his designee. Such buyer or transferee shall be designated the taxpayer. The taxpayer may delegate the function of remitting and paying the tax to the notary public or the attorney handling the transaction; however, the taxpayer shall remain liable for the tax to the parish through the department of finance as hereinafter set forth.
(c) Penalties for delinquency.
If any tax due under this article is not remitted within the time prescribed herein, it shall be delinquent; and the taxpayer, in addition to being liable for the tax due plus interest, shall be subject to a penalty of 20 percent of the amount of the tax plus interest at the rate of ten per cent per annum, or $500.00, whichever is greater, and ten percent of the attorney’s fees on the tax, interest, and penalty die in all cases wherein an attorney is required to assist in the collection; provided, however, that the penalties and interest imposed herein shall be waived if' payment of the tax is received within 45 days of the date of the first notice of delinquency from the entity or person designated by the Parish Council.
(d) Limitations.
The levy, payment or failure to pay the tax required by this article shall not affect, nor be construed as impairing or affecting any rights or obligations created or governed by the civil laws of persons, property and obligations, and in no instance shall any immovable property involved in any transaction be construed to be subject to any lien or encumbrance by virtue of the failure to pay the tax, nor shall this article affect or alter or be construed by any person as affecting or altering the duties and powers of any constitutional parochial officer.
(e) Exemptions.
The following [enumerated] instruments, acts, writing or documents shall be exempt from the provisions of this article and the tax imposed .... [The ordinance specifies 32 exemptions.]
|4(f) Administration and enforcement.
(1) The Director of Finance for Livingston Parish may from time to time inspect the registry of public record to ensure compliance with this article. The Parish Council shall promulgate rules and regulations for the enforcement and administration of this article within 30 days from the effective date of the ordinance from which this article was derived and may require persons to appear and testify and to produce documents for its inspection under oath.
(2) The parish council is hereby authorized to engage the services of another public official to effect the collection of the tax levied by this chapter in whole or in part, compensation to be negotiated.
(g) Imposition and collection.
The tax shall be due and collected upon each transaction involving the recordation of an instrument, act, writing, or document covered by this article as follows:
(1) For all sales, mortgages, sales, and resales through a financial institution or sales and mortgages deemed to be a single transaction involving only one “single family residence or residential double” the sum of $300.00, it being understood that the term single family residence includes a single unit in residential condominiums and single residential townhouses but does not include timeshares condominiums or townhouses....
(2) For all other transactions, the sum of $300.00 for each instrument, act writing or document
(3) The taxpayer may delegate the function of remitting and paying the tax to the notary public or the attorney handling the transaction; however, the taxpayer shall remain liable for the tax to the parish through the department or finance as hereinafter act forth.
(4) For all sales of time-share condominium units, whether characterized as sales of an interest in fee simple or right of use, by the developer of the time-share condominium the sum of $300.00 for the sale or transfer of each 1/52 share of each time-share | .^condominium unit, which sum shall be due upon the sale or transfer of each time-share condominium unit; provided, however, any group of instruments deemed to be a single transaction shall be taxed as a single instrument, writing or document. For any subsequent sales or transfers of fractional time-shares or interval of a condominium unit by a seller other than the time-share developer, the sum of $300.00 for each sale or transfer.
(h) Remittance.
The taxpayer shall, immediately upon filing for record of the instrument, act, writing, or document, in either of the public records offices, remit and pay the tax directly or through the notary public or attorney handling the transaction to the entity or person designated by the Parish Council.
If any provision of this ordinance shall be held to be invalid, such invalidity shall not affect other provisions herein, which can be given effect without the invalid provision, and to this end the provisions of this ordinance are hereby declared to be severable.

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

|fiThe trial court correctly applied La. R.S. 47:2110 to conclude that Kinchen was afforded a procedure to test the validity of the Document Transaction Tax and that she did not timely avail herself of that remedy. Thus, because her petition fails to allege conformity with the procedure set forth in La. R.S. 47:2110, it fails to state a cause of action and the trial court correctly sustained defendants’ exception. Accordingly, for the reasons set forth by the trial court, we affirm the dismissal of Kinchen’s petition. Appeal costs are assessed to Carlene Kinchen.

AFFIRMED.

WELCH, J., dissents with reasons.

Appendix “A”

CARLENE T. KINCHEN VERSUS

THE LIVINGSTON PARISH COUNCIL, ETAL

NUMBER 107,860, DIVISION “C”

21ST JUDICIAL DISTRICT COURT

PARISH OF LIVINGSTON

STATE OF LOUISIANA

FILED:_

DY. CLERK:_

REASONS FOR JUDGMENT

This is a suit for class action certification, to declare a “Documentary Transaction Tax” enacted by the Livingston Parish Council unconstitutional, and to recover amounts paid by citizens for this tax. Defendants have filed exceptions of no cause of action and/or prescription/pre-emption.

The tax in question generally required the payment of $300.00 for each deed recorded in the Parish. The ordinance was somewhat non-specific as to the designated collector of the fee, but did provide that a person would be designated to receive payment on behalf of the Parish. At some point, the ability of the Parish to collect this tax without some Legislative approval came into question and the Parish suspended collections of the tax. It was conceded that the named plaintiff had not paid this tax under protest nor given notice of any intention to legally challenge the tax at the time of payment. The exceptions presently before the Court are rooted in that failure.

R.S. 47:2110 holds generally that a person who wishes to challenge a tax must pay the tax to the collecting agency, notifying the agency that the payment is made under protest, and that a legal challenge to the tax or assessment will be filed. In this event, the party has 30 days to file the suit to challenge the tax or assessment. The collecting agency is to segregate the funds from the protested payment during the duration of any litigation.

Plaintiff argues that this statute is inapplicable to this case, because it deals only with ad valorem taxes. The first section of R.S. 47:2110, does prevent the use of injunctive relief against the collection of ad valorem taxes. However, the remainder of the statute, and particularly paragraph A.(3) setting up the above procedure is not specific to ad valorem taxes, and has been jurisprudentially applied to other types of taxes and fees, or “... any illegal tax paid...” as stated in Louisiana Employer-Managed Insurance Co. vs. Litchfield, 2001-0123 (La.App. 1st Cir.12/28/01), 805 So.2d 386.

Plaintiff further argues that the method of enactment and collection of the transaction tax | ¿violates due process under the holding in McKesson vs. Division of Alcoholic Beverages & Tobacco, 496 U.S. 18, 110 S.Ct. 2238, 110 L.Ed.2d 17 (1990). However, under the provisions set forth in R.S. 47:2110, a remedy was afforded persons similarly situated to Plaintiff to test the validity of this tax. The general process of the payment under protest procedure contained in R.S. 47:2110, has been found to meet due process requirements in the post-McKesson decision in Church Point Wholesale Beverage Co. vs. Tarver, 92-CA-2658, (La.2/22/93), 614 So.2d 697. Further, the McKesson court itself opined that a scheme of payment under protest with short delays in which to challenge a tax complied with due process. Therefore, this Court finds that Plaintiff had the ability to pay the tax under protest and give notice of filing of a legal challenge and that the Court is not precluded from ruling on the exceptions filed by Defendant on this basis.

Plaintiff further contends that the exceptions presently filed have a practical effect of bifurcating this proceeding as to a recovery stage and a determination of whether the transaction tax is a legal tax, and contends that these issues are too intertwined to treat separately. No authority is cited for this position, and, with respect to this present lawsuit, the Court cannot defer a ruling on these issues pending a trial on the constitutionality of the ordinance.

In Cooper vs. City of New Orleans, 2001-0115 (La.App. 4 Cir. 2/14/01), 780 So.2d 1158, a class action petition challenging enforcement of a city ordinance providing the collection of penalties and attorneys fees for the collection of past due ad valorem taxes was rejected. The reason for the rejection was lack of numerosity of persons similarly situated. Although some 10,000 persons had paid the penalties, only 14 had paid under protest.

Plaintiff argues that Cooper is inapplicable to the present case in that the Livingston Parish ordinance did not designate a specific place of payment or means of protest. However, Cooper utilized that basic provisions of R.S. 47:2110, not any specifics in the ordinance. This case also involved collection of a penalty and attorney’s fees, not any ad valorem tax itself, and the court decided the issues under R.S. 47:2110, stating:

By its own terms, R.S. 47:2110(A) applies to “any person resisting the payment of the amount of any tax found due, or the enforcement of any provision of the tax laws in relation thereto.”

While it might seem to be somewhat unfair to impose these procedures and time limitations upon a taxpayer who might not expect the levy to be potentially unconstitutional, this is counterbalanced by the needs of government to “engage in sound fiscal planning”, at noted in 19Church Point, and as further enunciated in Kean’s Partnership vs. Parish of East Baton Rouge, 96-0751 (La.l1/25/96), 685 So.2d 1043, wherein the Supreme Court stated:

If we were to decide that judicial review is available to the taxpayer regardless of the existence of a question of fact or law, the payment under protest requirements in local ordinances would be rendered meaningless and the local governing authorities would be subject to claims for refunds without having segregated the funds therefor.

Consequently, this Court determines that, in order to maintain this action as presented, Plaintiff would have to allege that the tax she paid was paid under protest, with notice given to the Parish of her intention to challenge the tax, in order to state a cause of action, and that the action itself would have to be brought within thirty days of such payment. Her petition alleges that she paid this tax on or about December 12, 2004, and this suit was not filed until April 29, 2005. Consequently, the claims urged have likewise prescribed.

Livingston,Louisiana, this 14th day of September, 2005.

/s/ Robert H. Morrison, III Judge, Division “C” Robert H. Morrison, III

Please send copies and notice to: Robert H. Harrison, Jr. D. Blayne Honeycutt

WELCH, J.,

Dissenting.

_JjI respectfully disagree with the majority opinion in this case. I believe that the trial court incorrectly determined that La. R.S. 47:2110 was applicable to the plaintiffs action to challenge the validity of the document transaction tax. The legislature intended La. R.S. 47:2110 to govern only those actions concerning ad valorem taxes. The tax at issue in this case is not an ad valorem tax; it is a document transaction tax or immovable property transaction tax.

Louisiana Revised Statutes 47:2110 is entitled “Suits to recover taxes paid under protest,” and it is located in Part II (Payment and Collection Procedure) of Chapter 4 (Payment and Collection) of Subtitle III (Provisions Relating to Ad Valorem Taxes) of Title 47 (Revenue and Taxation).

The original legislation for the provisions now contained in La. R.S. 47:2110, provided that it was an act “to carry into effect Section 18, Article X of the Constitution of Louisiana and to provide ... for a complete and adequate remedy for the prompt recovery by every taxpayer of any illegal tax paid by him.” 1938 La. Acts, No. 330.

However, in 1970, the provisions set forth in the original legislation were amended and re-enacted into La. R.S. 47:2110. 1970 La. Acts, No. 375, § 1. In doing so, the legislature limited this remedy to actions to recover ad valorem taxes paid under protest. This is evidenced by the preamble to this act, which provides that the act “amend[s] and reenact[s] Section 2110 of Title 47 of the Louisiana | ¡.Revised Statutes of 1950, relative to suits to recover ad valorem taxes paid under protest.” (Emphasis added). Since 1970, our legislature has amended and reenacted La. R.S. 47:2110 twelve times; of those twelve amendments, eight have pertained to subsection A — the subsection that both the majority and the trial court found applicable herein. The preambles to seven of the eight amendments pertaining to subsection A have all reiterated that the act is to amend La. R.S. 47:2110(A) relative to ad valorem taxes and to provide for procedures dealing with the payment of ad valorem taxes under protest.

|sConsidering the title of La. R.S. 47:2110, the location of La. R.S. 47:2110 within Subtitle III (Provisions Relating to Ad Valorem Taxes) of Title 47, and the preambles to the legislation concerning La. R.S. 47:2110(A), it is clear that La. R.S. 47:2110 was intended by the legislature to govern only those actions relative to ad valorem taxes paid under protest. The trial court and the majority have erroneously determined otherwise.

In Comm-Care Corp. v. La. Tax Comm’n, 96-0039, p. 10 (La.App. 1st Cir.9/27/96), 681 So.2d 1001, 1006, affirmed on other grounds, 96-1711 (La.1/21/98), 706 So.2d 425, a suit to recover ad valorem taxes paid under protest, we determined that the payment of ad valorem taxes under protest had to be made prior the end of the pertinent tax year in order for the taxpayer to maintain suit under La. R.S. 47:2110. In doing so, we noted the language from the original legislation, set forth above, and reasoned that “[providing ‘a complete and adequate remedy for the prompt recovery by every taxpayer of any illegal tax paid by him’ [was] dependent upon the taxpayer making timely payment of the taxes due. Permitting a taxpayer challenging the validity of an assessment of ad valorem taxes to make payment under protest subsequent to the conclusion of the tax year delays recovery and defeats the goal of ‘promptness.’ ” Id.

In La. Employers-Managed Ins. Co. v. Litchfield, 2001-0123, p. 7 (La.App. 1st Cir.12/28/01), 805 So.2d 386, 391, another suit to recover ad valorem taxes paid under protest, we again recognized that “[La. R.S.] 47:2110’s purpose of providing ‘a complete and adequate remedy for the prompt recovery by every taxpayer of any illegal tax paid by him’ was promoted by making the taxpayer’s remedy dependent upon the timely payment of the [ad valo-rem] taxes.”

Using this language from La. Employers-Managed Ins. Co., the trial court in its written reasons for judgment concluded that the procedure set forth in La. R.S. 47:2110 was not specific to ad valorem taxes and determined that La. R.S. L47:2110 applied to suits to recover “any illegal tax paid.” The majority adopted this reasoning. However, I believe that the trial court and majority’s reasoning is flawed and their reliance on the language from the La. Employers-Managed Ins. Co. is misplaced.

Since the taxes at issue in both Comm-Care Corp. and La. Employers-Managed Ins. Co were ad valorem taxes, we appropriately considered the original legislation’s purpose in determining the time within which the payment of the ad valo-rem taxes under protest had to be made. However, unlike Comm-Care Corp. and La. Employers-Managed Ins. Co., the tax at issue in this case is not an ad valorem tax, and the suit filed by the plaintiff is not a suit to recover an ad valorem tax paid under protest. Therefore, using the language from La. R.S. 47:2110’s original legislation, which has since been limited by our legislature to ad valorem taxes, to conclude that the procedure set forth in La. R.S. 47:2110 is applicable to any illegal tax, including the document transaction tax, is clearly inappropriate.

Moreover, as our supreme court succinctly noted in Allied Chemical Corp. v. Iberville Parish Police Jury, 426 So.2d 1336, 1339 (La.1983), “La. R.S. 47:2110 sets forth the proper method by which the payment of an ad valorem tax may be resisted when the tax is not authorized by an election” and “applies only when the tax is imposed ‘... by the state, or any political subdivision thereof under the authority granted to it by the legislature .or by the constitution. ’ ” (Footnote omitted; emphasis added). In this case, while the document transaction tax was certainly imposed by a political subdivision, i.e., the Livingston Parish Council, it was not imposed pursuant to any authority granted to it by the legislature or constitution. See La. Atty. Gen. Op. No. 04-0381. Thus, not only is La. R.S. 47:2110 not applicable to the plaintiffs action challenging the document transaction tax because the tax is not an ad valorem tax, but it is also not applicable to the plaintiffs action because the tax whose validity is being contested was not ^authorized by the constitution or the legislature. See Allied Chemical Corp., 426 So.2d at 1339.

For these reasons, I believe the plaintiff was not required to follow the procedures set forth in La. R.S. 47:2110 relative to ad valorem taxes in order to protest the document transaction tax, the plaintiff has stated a cause of action, and I would reverse the judgment of the trial court and remand this matter for further proceedings.

Thus, I respectfully dissent.

      . The gist of Kinchen’s assertion of the unconstitutionality of the documentary transaction tax is that the Parish, which operates under a home rule charter, see La. Const. Art. VI, § 5, is limited in its power of taxation to that which is granted by the legislature or the constitution. See La. Const. Art. VI, § 30. Urging that there is no constitutional or legislative grant of authority permitting the Parish to impose the documentary transaction tax, Kinchen maintains it is an invalid tax.

      . Although La. R.S. 47:2110 has subsequently been modified by the legislature by La. Acts 2004, No. 461, § 3, effective July 1, 2006, by its express terms, that amendment does not apply to the tax in this case which was imposed in December 2004. Thus, La. R.S. 47:2110 A(3), as applicable to this case, provides in relevant part:
      (3)(a) Any other taxpayer which is not a public service property taxpayer resisting the payment of any amount of tax due shall pay the amount due to the officer designated by law for the collection of such tax and shall give him written notice at the time of payment of his intention to file suit for the recovery of such tax. Upon receipt of such notice, the amount so paid shall be segregated and held by the officer for a period of thirty days. If a suit is timely filed seeking the recovery of the tax, then that portion of the taxes paid that are in dispute shall be deemed as paid under protest and such amount shall be segregated and shall be further held pending the outcome of the suit. That portion of the taxes paid by the taxpayer to the officer which is not in dispute shall not be made subject to the protest.
      (b) If the taxpayer which is not a public service property taxpayer prevails, the officer shall refund the amount to the taxpayer with interest at the actual rate earned on the money paid under protest in the escrow account during the period from the date such funds were received by the officer to the date of such refund. If the taxpayer does not prevail, the taxpayer shall be liable for the additional taxes together with interest at the rate set forth above during the period from the date the notice of intention to file suit for recovery of taxes was given to the officer until the date such taxes are paid.

      . In dismissing Kinchen’s lawsuit, the trial court also granted an exception raising the objection of prescription filed by defendants. Because we have found no error in the grant of the exception of no cause of action, it is unnecessary to reach the issue of whether the petition is also prescribed, and-we pretermit such a discussion.

      . The title of a law may be examined to determine its purpose. Boutte v. Jefferson Parish

        Hospital Service District No. 1, 99-2402, p. 5 (La.4/11/00), 759 So.2d 45, 49.

      . The title or preamble of an act may be used to determine legislative intent. Matter of American Waste & Pollution Control Co., 93-3163, p. 10 (La.9/15/94), 642 So.2d 1258, 1264.

      . The only amendment to subsection A wherein the preamble not did specifically indicate it pertained to the ad valorem tax concerned the interest rate at which the ad valorem taxes paid under protest were placed into escrow. See 1995 La. Acts, No. 53 ("AN ACT to amend and reenact ... [La. R.S. 47:]2110 relative to the interest rate at which taxes paid under protest shall be deposited or refunded”).

      . See 1986 La. Acts, No. 540 ("AN ACT to amend and reenact ... [La.] R.S. 47:2110(A) ... relative to ad valorem taxes, to provide the manner in which taxes in dispute may be paid under protest, to provide for refunding or collection of taxes and interest upon outcome of a suit for recovery of taxes”);
      1995 La. Acts, No. 272 (“AN ACT to amend and reenact ... [La. R.S. 47:]2110 relative to ad valorem property taxes; to provide for notice and service of process regarding certain suits filed for recovery of such taxes paid under protest”);
      2000 La. Acts, 1st Extr. Session, No. 74 ("AN ACT to amend and reenact ... [La. R.S. 47:]2110(A) ... relative to ad valorem tax procedures; ... to provide for procedures dealing with the payment of ad valorem taxes under protest generally; to modify certain tax procedures regarding withholding and aggregating ad valorem taxes due into separate funds during litigation”);
      2001 La. Acts, No. 1149 ("AN ACT to amend and reenact ... [La. R.S. 47:]2110(A) ... relative to the ad valorem property tax assessment of public service properties”);
      2003 La. Acts, No. 792 ("AN ACT to amend and reenact ... [La. R.S. 47:]2110(A) ... relative to ad valorem property tax; to provide with respect to certain ad valorem taxes which are in dispute and payment of such taxes made under protest; to provide for notice in matters where the assessments of certain ad valorem taxes are in dispute and payment of such taxes is made under protest”);
      2004 La. Acts, No. 154 ("AN ACT to amend and reenact [La.] R.S. 47:2110(A) ..., relative to the ad valorem tax; to provide for the timely payment of taxes paid under protest”); and
      2004 La. Acts, No. 461 ("AN ACT to amend and reenact ... [La. R.S. 47:]2110(A) ..., relative to ad valorem property tax payment under protest procedure”).


author: PETTIGREW, J. DOWNING, J.,

text:
    SIGNLITE, INC. v. NORTHSHORE SERVICE CENTER, INC., D/B/A Stop N’ Gas Go and Mark Boudreaux.
    No. 2005 CA 2444.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 9, 2007.

      William J. Faustermann, Jr., Slidell, for Plaintiff-Appellee Signlite, Inc.
    Christopher J. Aubert, Christian W. Helmke, David S. Pittman, Covington, for Defendant-Appellant Northshore Service Center, Inc., d/b/a Stop N’ Gas Go and Mark Boudreaux.
    Before: PETTIGREW, DOWNING, and HUGHES, JJ.
   PETTIGREW, J.

pThis is a suit for payment of a conventional obligation. The defendants have appealed from the rendition of a default judgment in favor of the petitioner. We reverse in part, vacate, and remand.

FACTS

Signlite, Inc. (“Signlite”), a Louisiana corporation and petitioner herein, alleges in its petition that it was engaged by defendant, Northshore Service Center, Inc. (“Northshore”), d/b/a Stop Gas N’ Go, to manufacture and install one (1) sign and one (1) awning for the total price, including sales tax and permit fees, of Twenty-nine Thousand, Four Hundred and no/100 ($29,-400.00) Dollars. It is further alleged that of this sum, Northshore paid a deposit of Fourteen Thousand, Seven Hundred and no/100 ($14,700.00) Dollars.

Pursuant to the terms set forth in the “Proposal and Sales Agreement,” the defendants agreed to pay the remaining balance upon completion of the installation. The agreement further provided that defendants would pay a service charge of 1½ percent per month on past due amounts not paid within thirty (30) days from the invoice date. The terms of the agreement further provided that reasonable attorney fees would be added in the event the contract was placed for collection or if collected by suit.

Signlite further alleges as part of its petition that Mark Warren Boudreaux (“Mr.Boudreaux”), also named as a defendant in this matter, executed, accepted, and personally guaranteed the payment of the invoice to Signlite. Signlite, through its authorized agent, thereafter accepted the terms of the contract at its corporate offices in Slidell, Louisiana.

According to the allegations of the petition, the installation of the sign and the awning at the Stop Gas N’ Go, 2501 N. Hwy. 190, Covington, Louisiana, was completed on March 8, 2005. Signlite asserts that Northshore and Boudreaux thereafter failed to pay the remaining balance in violation of the terms and conditions of the agreement.

INACTION OF THE TRIAL COURT

Signlite subsequently filed suit in the 22nd Judicial District Court for the Parish of St. Tammany against Northshore and Mr. Boudreaux on May 23, 2005, seeking recovery of the balance due pursuant to the terms of the contract. Signlite filed a motion seeking entry of a preliminary default on June 13, 2005. A preliminary default was entered by the court on June 14, 2005. On July 5, 2005, a notarized affidavit from the controller of Signlite, attesting to the correctness of the North-shore account, was filed into the record together with the original Proposal and Sales Agreement, a copy of the original Signlite invoice, an affidavit from Signlite’s attorney certifying as to procedural compliance, and an affidavit from Signlite’s attorney that attached a copy of Signlite’s billing statement setting forth the time spent by said attorney prior to confirmation of the default.

On July 14, 2005, the date the default was confirmed, the deputy clerk of court certified that no answer or opposition had been filed in response to the petition filed by Signlite. The trial court thereafter rendered a default judgment confirming the preliminary defaults entered against Northshore and Mr. Boudreaux on June 14, 2005.

On July 28, 2005, Northshore and Mr. Boudreaux moved for a new trial and to set aside the default judgment on the ground that Signlite failed to establish all elements of a prima facie case as required by the Louisiana Code of Civil Procedure for the entry of a default judgment. These motions were subsequently denied by the trial court on July 29, 2005; and Northshore and Mr. Boudreaux moved for a suspensive appeal.

ISSUES

In connection with their appeal in this matter, Northshore and Mr. Boudreaux set forth the following issues for review and consideration by this court:

1.) What is the standard to be used by the Court of Appeal to set aside a default judgment?
2.) Did Signlite meet its burden of proving a prima facie case in the trial court?
3.) Was the award of attorney fees set by the trial court excessive?

JjANALYSIS

In a confirmation hearing on a default judgment, a plaintiff must present competent evidence that convinces the court that it is more probable than not that he would prevail in a trial on the merits. Carter v. Amite City Ford, Inc., 2003-1536, p. 3 (La.App. 1 Cir. 6/25/04), 885 So.2d 1190, 1192. There is a presumption that a default judgment has been rendered upon sufficient evidence to establish a pri-ma facie case and is correct, and appellant has burden of overcoming that presumption. However, the presumption that the default judgment was rendered upon sufficient evidence and is correct does not apply where testimony is transcribed and contained in the record. Bates v. Legion Indemnity Company, 2001-0552, p. 4 (La.App. 1 Cir. 2/27/02), 818 So.2d 176, 179. There is no transcript of the testimony in the case at hand; therefore, the presumption of the validity of the confirmation of default judgment applies.

The Louisiana Constitution of 1974 provides that the appellate jurisdiction of the courts of appeal extends to both law and facts. La. Const. Art. V § 10(B). A court of appeal may not overturn a judgment of a trial court absent an error of law or a factual finding that was manifestly erroneous or clearly wrong. See Stobart v. State, Department of Transportation and Development, 617 So.2d 880, 882, n. 2, (La.1993). When the court of appeal finds that a reversible error or manifest error of material fact was made in the trial court, it is required to redetermine the facts de novo from the entire record and render a judgment on the merits. Rosell v. ESCO, 549 So.2d 840.

A judgment by default may be entered against a defendant who fails to answer within the time prescribed by law. La. Code Civ. P. art. 1701 A. Louisiana Code of Civil Procedure art. 1702 specifies the procedure and evidence necessary to confirm a default. Louisiana Code of Civil Procedure art. 1702 A, B(l), and C govern when a demand is based upon a conventional obligation; while La.Code Civ. P. art. 1702 A, B(3), and C apply when a demand is based upon an open account.

Louisiana Civil Code article 1906 provides “A contract is an agreement by two or more parties whereby obligations are created, modified, or extinguished.” Pursuant to La. Civ.Code art. 1908, “A contract is bilateral, or synallagmatic, when the parties obligate | Kthemselves reciprocally, so that the obligation of each party is correlative to the obligation of the other.”

Louisiana Revised Statutes 9:2781, which governs open accounts, attorneys fees, professional fees, and open accounts owed to the state, provides in paragraph D, as follows:

D. For the purposes of this Section and Code of Civil Procedure Articles 1702 and 4916, “open account” includes any account for which a part or all of the balance is past due, whether or not the account reflects one or more transactions and whether or not at the time of contracting the parties expected future transactions. “Open account” shall include debts incurred for professional services, including but not limited to legal and medical services. For the purposes of this Section only, attorney fees shall be paid on open accounts owed to the state.

An open account necessarily involves an underlying agreement between the parties on which the debt is based. Gulfstream Services, Inc. v. Hot Energy Services, Inc., 2004-1223, p. 4 (La.App. 1 Cir. 3/24/05) 907 So.2d 96, 100, writ denied, 2005-1064 (La.6/17/05), 904 So.2d 706.

Certainly, an open account is a contract, but our jurisprudence has made a distinction between open accounts and conventional obligations. A contract is significantly different from an open account. A “contract” is an agreement by two or more parties whereby obligations are created, modified, or extinguished, thereby establishing a concurrence in understanding the terms. An “open account,” however, is an account in which a line of credit is running and is open to future modification because of expectations of prospective business dealings, and services are recurrently granted over a period of time. Shreveport Electric Co., Inc. v. Oasis Pool Service, Inc., 38,766 & 38,876, p. 8 (La.App. 2 Cir. 9/29/04) 889 So.2d 274, 279, writ denied, 2005-0340 (La.4/1/05) 897 So.2d 613. See also Tyler v. Haynes, 99-1921, p. 5 (La.App. 3 Cir. 5/3/00), 760 So.2d 559, 563.

In the case at hand, the trial court described the plaintiffs petition and rendered judgment based upon plaintiffs petition being a suit based upon an open account. This was a manifestly erroneous finding of fact on the part of the trial court, which interdicted its conclusion and judgment in this case. After a thorough review of the record, we [ficonclude that what we have before us is not a suit on open account, but rather a suit on a conventional obligation based upon an alleged contract between Signlite, Inc. and Northshore d/b/a Stop Gas N’ Go, for Signlite to manufacture an illuminated pole sign for Northshore for the specific price of $29,400.00.

Since this is a suit on a conventional obligation, Northshore, to confirm a default, must comply with La.Code Civ. P. art. 1702 A, B(l), and C, and further must prove by prima facie evidence that it completed its obligations under said contract. Orleans Sheet Metal Works and Roofing v. Landis Company, Inc., 96-0029, p. 2 (La.App. 4 Cir.1996) 678 So.2d 73, 74. By the very terms of its own contract, Signlite must present a prima facie case that it manufactured and delivered the completed sign to Northshore.

In support of its confirmation of the default judgment, Signlite introduced the following documents and/or exhibits:

1. Affidavit of Correctness of Account by Jerry Wiel, Controller of Signlite, Inc.
2. Copy of Proposal and Sales Agreement between Signlite, Inc. and Stop Gas N’ Go, Mr. Eddie Hartson, dated November 24, 2004, for a total contract price of $29,400.00.
3. Invoice dated February 28, 2005, from Signlite, Inc. to Stop Gas N’ Go, Mr. Eddie Hartson, showing a balance due of $17,272.50.
4. Affidavit of Attorney for Plaintiff, dated June 27, 2005, certifying the dates of service, the entry of the preliminary default, and that the suit is one on a conventional obligation.
5. Affidavit of William J. Fausterman, Jr. relative to attorney fees.
6. Certificate of the Deputy Clerk of Court, certifying no answer or other opposition has been filed to plaintiffs petition for confirmation of default.

The Proposal and Sales Agreement, dated November 24, 2004, between Signlite and Stop Gas N’ Go, sets forth the price for the installation of the sign to be $29,400.00 and contains the following terms:

“TERMS: 501POSIT/B ALANCE @ COMPLETION”

The contract specifically provides the balance due is upon completion. The Signlite invoice dated February 28, 2005, was addressed to “Stop Gas N’ Go, Mr. Eddie Hartson, 2501 N. Hwy. 190, Covington, La. 70433,” for $17,272.50. The invoice does not reflect the |7completion date of the installation of the sign or that the installation was completed. In fact, the space on the invoice indicating the date of completion is blank.

The Affidavit of Correctness of Account in support of the motion for confirmation judgment by Jerry Wiel, Controller of Signlite, does not verify that the installation of the sign was completed, nor does it give a completion date. Pursuant to the terms of the Proposal and Sales Agreement, Northshore d/b/a Stop Gas N’ Go was not hable for the balance due to Sign-lite until the completion of the installation. There is no evidence in the record to indicate that Signlite completed installation of the sign.

On July 28, 2005, Northshore and Mr. Boudreaux timely moved for a new trial to set aside the default judgment on the ground that Signlite failed to establish all the elements of a prima facie case as required by the Louisiana Code of Civil Procedure for the entry of a preliminary default judgment. Louisiana Code of Civil Procedure article 1972 provides, in part, as follows:

A new trial shall be granted, upon contradictory motion of any party, in the following cases:
(1) When the verdict or judgment appears clearly contrary to the law and the evidence.

These motions were denied by the trial court on July 29, 2005.

On appeal, the denial of a motion for new trial should not be reversed unless there has been an abuse of the trial court’s discretion. McCray v. J/H/J Inc., 99-2283, p. 7 (La.App. 1 Cir. 11/3/00), 769 So.2d 1273, 1277. In this proceeding the trial court committed manifest error in interpreting the contract between Signlite and Northshore as an open account when in fact it was on a conventional obligation; said factual finding interdicted the judgment of the trial court. Further, there was no evidence presented that Signlite completed the construction of the sign, which was necessary for them to prove a prima facie case against Northshore and Mr. Boudreaux. These findings were clearly contrary to the law and the evidence and entitled Northshore and Mr. Boudreaux to a new trial pursuant to La. Code Civ. P. art. 1972(1).

For these reasons, we hereby reverse the trial court’s denial of the Motion for New Trial filed by Northshore and Bou-dreaux. In addition, we vacate and set aside the default | ¿judgment rendered July 18, 2005, in favor of Signlite, Inc. and against the defendants, Northshore Service Center, Inc. d/b/a Stop Gas N’ Go and Mark Boudreaux, in the amount of $17,272.50, and we remand this matter to the trial court for further proceedings consistent with this opinion.

All costs of this appeal shall be assessed against Signlite, Inc.

JUDGMENT DENYING NEW TRIAL REVERSED; JUDGMENT OF JULY 18, 2005, VACATED AND SET ASIDE; THIS MATTER REMANDED FOR FURTHER PROCEEDINGS.

DOWNING, J., concurs and assigns reasons.

DOWNING, J.,

concurring.

hi agree with the opinion where it addresses the merits of the judgment on appeal. However, I disagree with the majority insofar as it addresses and rules on the trial court’s denial of Northshore’s and Boudreaux’s motion for new trial. The established rule in this circuit is that the denial of a motion for new trial is an interlocutory and non-appealable judgment. Carpenter v. Hannan, 01-0467, p. 4 (La.App. 1 Cir. 3/28/02), 818 So.2d 226, 228, citing Morrison v. Dillard Department Stores, Inc., 99-2060, p. 2 (La.App. 1 Cir. 9/22/00), 769 So.2d 742, 744. The Louisiana Supreme Court, however, has instructed us to consider an appeal of the denial of a motion for new trial as an appeal of the judgment on the merits, when it is clear from appellant’s brief that the appeal was intended to be on the merits. Carpenter, 01-0467 p. 4, 818 So.2d at 228-229. Thus, we are to review the judgment on the merits and not the judgment denying a new trial.

Here, the appellant did not assert the denial of a new trial as a ground of appeal. Yet, the majority opinion discusses the appeal of the denial of the new trial and reverses the trial court’s ruling in this regard. I respectfully suggest that this 1 ¡.discussion, together with all references to reversing on this ground, misrepresents the state of the law and should be disregarded.

      . Despite the fact that the caption of the plaintiff’s petition, and hence all subsequent pleadings, set forth the name of the defendant entity as "Stop N' Gas Go,” it appears that the correct name of said entity is “Stop Gas N’ Go.”

      . Within its Motion for Preliminary Default, counsel for Signlite averred that service of the citation and petition was made by the sheriff upon the registered agent for Northshore and upon Mark Boudreaux personally on May 25, 2005.

      . By 2005 La. Acts No. 205, effective January 1, 2006, La. C.C.P. art. 2083 was amended to remove the longstanding provision that interlocutory judgments that “may cause irreparable harm” are appealable. An interlocutory judgment is now appealable only when expressly provided by law. Accordingly, the denial of a new trial is not generally appeal-able


author: McDonald, j.

text:
    Robin MATTHEWS v. SHELTER MUTUAL INSURANCE COMPANY (UM).
    No. 2006 CA 0640.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 9, 2007.
    Kevin Patrick Monahan, Baton Rouge, Counsel for Plaintiff/Appellant Robin Matthews.

      Brent E. Kinchen, Jonathan D. Mayeux, Baton Rouge, Counsel for Defendant/Ap-pellee Shelter Mutual Insurance Company.
    Before: CARTER, C.J., WHIPPLE and McDonald, jj.
   McDonald, j.

| „The issue in this case is whether a person who heard a driver describe a “miss and run” accident on her cellular phone as it happened, and also heard glass popping and breaking as the driver’s car was damaged, qualifies as an independent and disinterested witness to the accident for purposes of La. R.S. 22:680(l)(f). We find that she does not under the facts of this case.

The plaintiff, Robin Matthews, was injured in an automobile accident on November 2, 2003 in the Copiah County, Mississippi on Highway 55 (1-55) near mile marker 72. Ms. Matthews filed suit against Shelter Mutual Insurance Company (Shelter Mutual), which had issued her a policy of automobile liability insurance that provided underinsured/uninsured motorist coverage. Ms. Matthews asserted that an unknown vehicle traveling in the right-hand lane of 1-55 attempted to merge into the left-hand lane of the highway, causing her to swerve left off 1-55 into the median to avoid a collision, and that this caused her vehicle to begin rolling -without warning, resulting in her injuries. She asserted that the cause of the accident was the negligence of the driver of the unknown vehicle, and she prayed for judgment in her favor against Shelter Mutual.

Shelter Mutual answered the petition, and thereafter filed a motion for summary judgment, asserting that it was entitled to judgment as a matter of law because there was no genuine issue of fact concerning the absence of an independent and disinterested witness that could offer any testimony that Ms. Matthews’ actions were the result of the actions of a phantom driver. Without such testimony, Shelter Mutual asserted, Ms. Matthews could not meet her burden of proof as required by La. R.S. 22:680(1)®.

Ms. Matthews opposed the motion for summary judgment. At the hearing she entered into evidence, among other things, her deposition, and lathe affidavit of Darlene Bourgeois. In Ms. Matthews’ deposition she states that she was talking on the phone with her good friend, Ms. Bourgeois, as the accident occurred. Ms. Matthews testified in her deposition that as she was chatting with Ms. Bourgeois on the phone, a white minivan in the lane next to hers began to drive into her lane.

The affidavit of Ms. Bourgeois states that she was talking to Ms. Matthews on the phone when Ms. Matthews began to fearfully describe what she was witnessing, stating than an unknown vehicle traveling in the right-hand lane was carelessly merging into the left-hand lane where Ms. Matthews was traveling. Ms. Bourgeois states in her affidavit that Ms. Matthews screamed “that white van is coming, oh my [G]od” and that Ms. Matthews screamed “Oh my God” again. Then Ms. Bourgeois heard “cracking, popping and glass breaking.”

After a hearing, the trial court found that Ms. Bourgeois did not qualify as an independent witness to the accident and ruled in favor of Shelter Mutual, granting the summary judgment. The trial court stated in its reasons for judgment “[Ms. Bourgeois] is just simply not in a position to say how the accident occurred... That there was an accident, no doubt, but how it occurred, she can offer nothing as an independent witness that the accident occurred and the injuries were sustained because of the actions of the driver of the white van.”

Ms. Matthews is appealing that judgment and makes two assignments of error:

1. The Trial Court erred in failing to recognize Darlene Bourgeois as an independent, disinterested witness, capable of establishing that the injuries sustained by Robin Matthews were the result of the actions of the white van whose identity is unknown, in accordance with LSA R.S. 22:680(1)®.
|42. The Trial Court erred in requiring Appellant’s independent and disinterested witness to prove “unequivocally” ... the cause of the motor vehicle accident.

THE STANDARD OF REVIEW

Appellate courts review summary judgments de novo under the same criteria that govern the trial court’s consideration of whether a summary judgment is appropriate. Schroeder v. Board of Supervisors of Louisiana State University, 591 So.2d 342, 345 (La.1991). The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with supporting affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B).

THE APPLICABLE STATUTE

Louisiana Revised Statute 22:680(l)(f) provides:

Uninsured motorist coverage shall include coverage for bodily injury arising out of a motor vehicle accident caused by an automobile which has no physical contact with the injured party or with a vehicle which the injured party is occupying at the time of the accident, provided that the injured party bears the burden of proving, by an independent and disinterested witness, that the injury was the result of the actions of the driver of another vehicle whose identity is unknown or who is uninsured or un-derinsured.

ANALYSIS

Ms. Matthews asserts that Ms. Bourgeois meets the definition of an independent, uninterested witness to the accident, as required under La. R.S. 22:680(l)(f) because she heard Ms. Matthews describing the accident as it occurred and she heard the noise as the accident was occurring. Ms. Matthews cites Wheat v. Wheat, 2003-0173 (La.App. 1 Cir. 11/7/03), 868 So.2d 83, as support for her argument.

In Wheat, the plaintiff struck an object in the roadway, which caused him to lose control of his vehicle, leave the roadway and sustain injury. The | ^witness supplied by the plaintiff was an investigating police officer who discovered that the plaintiffs vehicle had struck a transmission that was left in the road. Plaintiff filed suit against his automobile liability insurer after it denied uninsured motorist coverage for the accident. The insurer in Wheat filed a motion for summary judgment, asserting that the plaintiff could not present an independent and disinterested witness to the accident. The trial court granted the motion for summary judgment and the plaintiff appealed that judgment. On appeal, this court reversed the trial court’s ruling, analyzing La. R.S. 22:1406 (which was re-designated as La. R.S. 22:680 by Acts 2003, No. 456, § 3) as follows:

[Tjhere is nothing in the language of [the statute] requiring that the witness actually see the accident occur. The statute only requires that the claimant prove, by an independent and disinterested witness, that the injury was the result of the actions of the driver of another vehicle.
⅜ ⅜ ⅜ ⅜
Trooper Clay Smith was an independent and disinterested witness. Trooper Smith stated in his affidavit that his investigation revealed that the transmission left in the roadway caused the accident involving the Wheat vehicle. Trooper Smith did not get this information from Sidney Wheat; in fact, Wheat testified that he thought he had been struck from behind by another vehicle until Trooper Smith told him that he had struck a transmission left on the road. Additionally, Trooper Smith does not stand to benefit from proof that the accident was caused by another vehicle dropping a transmission in the roadway. Finally, .... although Trooper Smith did not see the vehicle strike the transmission, he did viéw the accident scene soon thereafter and was able to conclude that the Wheat vehicle had struck the transmission.
It is clear that the transmission found in the roadway in this case was left there by another vehicle. Trooper Smith testified that the transmission was not from the Wheat vehicle, and a transmission is much too heavy for a pedestrian to have carried onto the roadway. The only reasonable explanation is that the transmission was dropped on the road by another vehicle. Adding to the likelihood of this theory is the fact that there is a junkyard located a short distance away from the spot where the transmission was found. Thus, Trooper Smith is an independent and disinterested witness whose testimony that the | ^accident was caused by Wheat’s vehicle striking a transmission left in the road connects Wheat’s injuries to the driver of another vehicle whose identity is unknown. This satisfies the requirements of both [the statute] and the insurance policy, and therefore the trial court erred in granting National’s motion for summary judgment.

Wheat v. Wheat, 2003-0173, p. 7-9.

Shelter Mutual relies upon the case of Jackson v. State Farm Mutual Automobile Insurance Company, 27,611 (La.App. 2 Cir. 12/6/95), 665 So.2d 661, in support of its argument that a phone call to a friend during an accident does not make the friend a witness to the accident. In that ease, Mrs. Jackson, while driving on Highway 173 in Caddo Parish, allegedly veered into a ditch to avoid an oncoming car and was injured. The car did not stop. Mrs. Jackson backed her car out of the ditch and drove home. She called her insurance agent and then called several friends to tell them about the accident. After her insurer refused her claim under her UM policy, Mrs. Jackson sued her insurer. The insurer filed a motion for summary judgment, asserting she had no independent and disinterested witness to the accident, as required by her insurance policy and La. R.S. 22:1406(D)(l)(f) (now La. R.S. 22:680(l)(f)). The trial court ruled in favor of the insurer, and Mrs. Jackson appealed. On appeal she asserted that the friends she called after the accident were wit-, nesses to the accident. Contrary to that assertion, the court held that:

The individuals are not independent because the only information concerning the accident that they possess is controlled by what Jackson relayed to them. Moreover, these individuals are not witnesses because they did not personally observe the accident. Perhaps these individuals were and are -witnesses to Jackson’s condition following the accident, but they certainly did not witness the cause of her injuries.

Jackson, 27,611 at p. 4, 665 So.2d at 664.

|7Ms. Matthews argues that her case can be differentiated from the Jackson case because in Jackson the plaintiff spoke to her Mends after the accident occurred, which gave her time to decide what to tell them. In her case, she notes, her statements to Ms. Bourgeois were made contemporaneously with the accident, and thus her statements have heightened credibility.

While we agree that the statements made by Ms. Matthews to Ms. Bourgeois were made as the accident was happening, unlike the phone calls in the Jackson case, these statements were based upon Ms. Matthews’ version of the accident. While it may be true that the white van forced Ms. Matthews to take evasive action, it also may be true that Ms. Matthews overreacted when the white van simply swerved toward her. Ms. Bourgeois did not view the accident herself, nor did she view the accident scene soon thereafter and come to her own independent conclusion as to the cause of the accident. The investigating officer in the Wheat case made an independent analysis of the accident scene to determine that the cause of the accident was the vehicle hitting a transmission that was left in the roadway. In fact, the plaintiff in Wheat believed he had been hit from behind, and did not know he had hit a transmission in the road until the investigating officer told him about it.

In this case, Ms. Bourgeois can only rely on information given to her by Ms. Matthews as to how the accident occurred. As found by the trial court, Ms. Bourgeois, unlike the investigating officer in Wheat, is not in an independent position to say how the accident occurred. She cannot testify that Ms. Matthews’ injuries were “the result of the actions of the driver of another vehicle,” as required by La. R.S. 22:680(1X0.

IsThus, we affirm the trial court judgment granting summary judgment in favor of Shelter Mutual. Ms. Matthews is cast with costs.

AFFIRMED.


author: GAIDRY, J. KUHN, J.,

text:
    Robert L. GREVEMBERG, Jr. v. G.P.A. STRATEGIC FORECASTING GROUP, INC., Strategic Forecasting, L.L.C., STRATFOR Systems, Inc., and George Friedman.
    No. 2006 CA 0766.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 9, 2007.

      Daniel J. Balhoff, Baton Rouge, Counsel for Plaintiff/Appellee Robert L. Grevem-berg, Jr.
    Richard D. Chappuis, Jr., John W. Hutchison, Robert M. Francez, Kristen B. Menard, Hoai T. Hoang, Lafayette, Counsel for Defendant/Appellant George Friedman.
    Before: KUHN, GAIDRY, and WELCH, JJ.
   GAIDRY, J.

⅝ ¾A judgment debtor appeals a default judgment in an action seeking recovery of money owed under a promissory note and damages based upon alleged breaches of fiduciary duties by corporate officers. For the following reasons, we reverse the default judgment against the appellant.

FACTUAL BACKGROUND AND PRIOR PROCEEDINGS

The plaintiff-appellee, Robert L. Gre-vemberg, Jr., instituted this litigation on January 14, 2002, by filing a petition for damages against various defendants, including the appellant, George Friedman, an alleged resident of Texas. The petition alleged that in 1996 Mr. Grevemberg and Mr. Friedman, among others, formed a corporation known as G.P.A. Strategic Forecasting Group, Inc. (the original corporation), which owned the rights to a computer software program. It further alleged that David Marshall became the original corporation’s chief executive officer, and that in November 1996 the corporation was reorganized as a limited liability company, Strategic Forecasting, L.L.C. Attached as an exhibit to the petition was a copy of a promissory note, alleged to have been executed on December 17, 1996 by Mr. Marshall in favor of Mr. Grevem-berg. The note was signed only by Mr. Marshall as the “borrower,” above his typed name and expressed capacity as “President” of “Strategic Forecasting [,] L.L.C.” In his petition, Mr. Grevemberg specifically stated that “[o]n its face, the note indicates that Strategic Forecasting, L.L.C. is the obligor.”

Strategic Forecasting, L.L.C. (the successor limited liability company) was alleged to have been reorganized as STRATFOR Systems, Inc. (the reorganized corporation) on January 1, 1998. Mr. Grevemberg set forth additional allegations that the reorganized corporation’s board of directors |sappointed a management committee without his consent as a board member, and that the committee members violated their fiduciary duties by failing to inform him of the committee’s actions and fraudulently misrepresenting the reorganized corporation’s financial status to him and other board members, leading to the corporation’s sale of the rights to the software program and other assets and the consequent dilution of the corporation’s stock value. The corporate assets were allegedly sold to Infraworks Corporation, which was named as defendant, together with the original corporation, the successor limited liability company, the reorganized corporation, and Mr. Friedman. Finally, Mr. Grevemberg alleged that by reason of all the various business reorganizations and transfers, all defendants became obligors on the promissory note. He requested that service be withheld on his original petition.

On February 20, 2002, Mr. Grevemberg filed a first amended petition, clarifying his allegations as to the parties designated as defendants. STRATFOR Systems, Inc. (the reorganized corporation) was nominally deleted as a defendant, and Infraworks Corporation was described as being “formerly known as” STRATFOR Systems, Inc. Ordinary service of process was requested upon both the original corporation and the successor limited liability company through Mr. Marshall, and service was requested upon Infraworks Corporation, a Texas corporation, pursuant to the Louisiana Long-Arm Statute, La. R.S. 18:3201, et seq. Service on Mr. Friedman was again requested to be withheld.

On February 27, 2003, Mr. Grevemberg filed a “Second Supplemental, Amending and Restated Petition for Damages,” essentially reiterating the allegations of his prior pleadings, except to again name STRATFOR Systems, Inc. (the reorganized corporation) as defendant and to |4clarify that the successor limited liability company was “merged into” the reorganized corporation, which in turn was “now known as Infraworks Corporation.” A set of interrogatories and a request for admissions of fact were also filed with the second amended petition, and service of the petition and discovery requests was requested on all defendants under the Louisiana Long-Arm Statute, La. R.S. 13:3201, et seq.

On April 21, 2005, Mr. Grevemberg filed affidavits of service by certified mail, pursuant to La. R.S. 13:3205, with the trial court. Two of those affidavits, identical in content (except for two different return receipts), verified the mailing of the citation and a certified copy of the second amended petition to Mr. Friedman and the receipt of those documents on March 12, 2003. .

On May 20, 2005, Mr. Grevemberg filed a motion for preliminary judgment by default against the defendants, including Mr. Friedman. The preliminary judgment by default was signed on May 24, 2005.

On July 20, 2005, the default judgment against the defendants was confirmed after a hearing in open court before the trial court’s duty judge, Judge Kay Bates. The minute entry recited that the default judgment was confirmed “[ujpon documentary evidence and testimony heard.” On the same date, the written default judgment in favor of Mr. Grevemberg and against all defendants was signed. This devolutive appeal by Mr. Friedman followed.

MOTION TO SUPPLEMENT RECORD

On July 7, 2006, Mr. Grevemberg filed a motion in this court to supplement the record with two exhibits. The exhibits are (1)a copy of a letter dated April 15, 2002 from Mr. Grevemberg’s counsel to the clerk of the trial court, requesting the preparation of citation for service of the | soriginal and first amended petitions upon Mr. Friedman, and (2) a letter of April 15, 2002 from Mr. Grevemberg’s counsel to Mr. Friedman, purportedly enclosing a citation and certified copies of the original and first amended petitions, with copies of the citation, the certified mail envelope postmarked that date and marked “unclaimed,” and the incomplete return mail receipt. Mr. Friedman objects to supplementation of the record. As the first exhibit bears on its face stamped indicia of its receipt and the receipt of the court costs described therein by the clerk of the trial court, we will grant the motion in part, and hereby order the appeal record supplemented with that exhibit. As to the other exhibit, we deny the motion. As Mr. Friedman correctly observed in his opposition to the motion, there is no indication or showing that the exhibit was ever a part of the trial court record or filed with the trial court.

ASSIGNMENTS OF ERROR

Mr. Friedman cites three specific assignments of error by the trial court, which we summarize as follows:

(1) The trial court erred in confirming the - default judgment on the promissory note against Mr. Friedman, as he did not sign the note;

(2) The trial court erred in confirming the default judgment against Mr. Friedman, as service of citation was not requested within 90 days of commencement of the action, as required by La. C.C.P. art. 1201(C);

(3) In the alternative, the trial court erred in awarding an unreasonable attorney fee.

Elsewhere in his appellate brief, Mr. Friedman characterizes the basis of the trial court’s error and his appeal in general terms, contending that “the plaintiff failed to establish a prima facie case against George Friedman.” We construe this as a general assignment of error. See La. C.C.P. art. 2129 and Greenfield v. Lykes Bros. S.S. Co., 02-1377, p. 4 n. 2 (La.App. 1st Cir.5/9/03), 848 So.2d 30, 32 n. 2. As will be seen, it is on this latter basis that we resolve this appeal.

ANALYSIS OF THE MERITS

A judgment of default must be confirmed by proof of the demand sufficient to establish a prima facie case. La. C.C.P. art. 1702(A). In order for a plaintiff to obtain a default judgment, he must establish the elements of a prima facie case with competent evidence, as fully as though each of the allegations in the petition were denied by the defendant. In other words, the plaintiff must present competent evidence that convinces the court that it is probable that he would prevail on a trial on the merits. Bates v. Legion Indem. Co., 01-0552, pp. 3-4 (La.App. 1st Cir.2/27/02), 818 So.2d 176, 178.

When reviewing a default judgment, an appellate court is restricted to a determination of the sufficiency of the evidence offered in support of a default judgment. Bates, 01-0552 at p. 4, 818 So.2d at 178. When a default judgment recites that the plaintiff has produced due proof in support of his demand and that the law and evidence favor the plaintiff and are against the defendant, there is a presumption that the default judgment has been rendered upon sufficient evidence to establish a prima facie case and is correct, and the appellant has the burden of overcoming that presumption. Ascension Builders, Inc. v. Jumonville, 262 La. 519, 527, 263 So.2d 875, 878 (La.1972). However, that presumption does not apply where the testimony is transcribed and is contained in the record. Bates, 01-0552 at p. 4, 818 So.2d at 179.

The documentary evidence introduced at the confirmation hearing consisted of two exhibits: (1) the affidavits of Suzanne B. Rivere, secretary [7to Mr. Grevemberg’s attorney, introduced in globo, verifying the mailing of the petition and citation to the defendants by certified mail and her receipt of the corresponding return receipts, with copies of those receipts; and (2) a copy of the attorney-client contract between Mr. Grevemberg and his attorney. Noticeably absent from the evidence is the promissory note itself.

The cover page of the hearing transcript bears the case caption, docket number, the duty judge’s name, the date of the confirmation hearing, and the description of the proceeding as “Hearing in Duty Court.” The court reporter’s certificate dated March 8, 2006 states that the transcript is “a true and accurate transcript of the aforesaid matter.” The transcript is limited to the testimony of one witness, Mr. Grevemberg’s attorney, who testified regarding the nature and extent of the professional services provided to his client, and confirmed that he and his client were “simply trying to collect on the note.”

Both the signed judgment and the trial court’s minute entry for the hearing date provide that the monetary award was for the “principal amount” of $212,218.43, together with eight percent interest, the principal amount and conventional rate of interest described in the copy of the note attached to the petition. Thus, the judgment at issue does not award any damages on Mr. Grevemberg’s claim based on breach of fiduciary duty and fraud, but rather is limited to the monetary award of the principal and conventional |sinterest due on the note, as well as an award of attorney fees authorized under the terms of the note.

Initially, we observe that the record does not contain any documentary evidence or testimony supporting Mr. Friedman’s assumption of liability for the obligation represented by the promissory note, whether based upon an indorsement of the note or other conventional assumption of such liability, or upon a theory of fraud, breach of fiduciary duty, “single business enterprise,” or “piercing the corporate veil.” Generally, “[a] person is not liable on an instrument unless ... the person signed the instrument.” La. R.S. 10:3-401(a)(i). See also Finance One of Houma, L.L.C. v. Barton, 99-1719, pp. 6-7 (La.App. 1st Cir.9/22/00), 769 So.2d 739, 742. But we have determined that this appeal can be resolved on a more fundamental basis, obviating any detailed analysis of the other substantive and procedural assignments of error and issues raised by the parties.

Louisiana Code of Civil Procedure article 1702(B), addressing various forms of prima facie proof for confirmation of default judgments, provides the following with regard to conventional obligations and promissory notes:

(1) When a demand is based upon a conventional obligation, affidavits and exhibits annexed thereto which contain facts sufficient to establish a prima fa-cie case shall be admissible, self-authenticating, and sufficient proof of such demand. The court may, under the circumstances of the case, require additional evidence in the form of oral testimony before entering judgment.
|9(3) When the sum due is on an open account or a promissory note or other negotiable instrument, an affidavit of the correctness thereof shall be prima facie proof. When the demand is based upon a promissory note or other negotiable instrument, no proof of any signature thereon shall be required.

In a suit on a promissory note, the note itself is the very foundation of the cause of action. Lindsley-Feiber Motor Co. v. Brumfield, 111 So.2d 555, 558 (La.App. 1st Cir.1959). Therefore, the introduction into evidence of the original promissory note is the required proof. First Homestead Fed. Sav. and Loan Ass’n v. Coleman, 446 So.2d 551, 553 (La.App. 3rd Cir.1984). If the plaintiff fails to either produce the note or to satisfactorily explain his failure to do so, and that failure is apparent on the face of the record, he has failed to prove the prima facie case necessary to obtain a valid default judgment. Lindsley-Feiber, 111 So.2d at 558-59.

Louisiana Code of Evidence article 1002 establishes a corollary evidentiary rule that “[t]o prove the content of a writing, ... the original writing ... is required,” unless an exception is provided by law. Louisiana Code of Evidence article 1003(3) provides that a duplicate of a document “is admissible to the same extent as an original unless ... [t]he original is a ... contract on which the claim ... is based.” (Emphasis supplied.) This article “eliminates the possibility of a photostatic duplicate of a promissory note being employed in a suit for payment, only to have a claimant bearing the original note present it for payment at a later date.” La. C.E. art. 1003, Official Comments, (c). (Emphasis supplied.) There is no allegation nor evidence in the record tending to establish that the original note was lost, destroyed, or otherwise unavailable. See La. C.E. art. 1004.

|inIt might be argued that the request for admissions addressed the issue of the genuineness of the copy of the note attached as an exhibit, and if the note’s genuineness is deemed admitted, La. C.E. art. 1007 would serve to excuse the failure to introduce the original note into evidence. That article provides that the content of a writing may be proved by the adverse party’s “written admission, without accounting for the nonproduction of the original.” See also Succession of Rock v. Allstate Life Ins. Co., 340 So.2d 1325, 1328-30 (La.1976); Johnston v. Broussard, 41,477, p. 4 (La.App. 2nd Cir.9/20/06), 940 So.2d 79, 82. Reading the request for admissions, it is questionable whether its wording sufficiently requests a specific admission of the note’s genuineness or the substance of its contents. But even if the request for admissions may be read as seeking the admission of the note’s genuineness or contents, there is no proof in the record that the request for admissions was properly served on Mr. Friedman and thereafter deemed admitted, nor was either the request for admissions or a duplicate of the note actually introduced into evidence.

|nIn summary, the jurisprudential rule requiring the introduction of the original promissory note and the general evidentia-ry rule of La. C.E. art. 1002 apply to invalidate the default judgment. The original promissory note was not introduced into evidence; thus, we do not reach the issue of whether the absence of Mr. Friedman’s signature is fatal to Mr. Grevem-berg’s judgment against him. As Mr. Friedman’s liability in the judgment is predicated upon the promissory note, the default judgment cannot stand, and is accordingly reversed. All costs of this appeal are assessed to the plaintiff-appellee, Robert L. Grevemberg, Jr.

MOTION TO SUPPLEMENT RECORD GRANTED IN PART AND DENIED IN PART; REVERSED.

KUHN, J., concurs and assigns reasons.

KUHN, J.,

Concurring.

hBased on the note attached to the petition, George Friedman is not a signatory to the note. I agree that the resolution of whether Friedman is liable to pay the obligation presented in the note is a legal issue that cannot be deemed admitted based on the requests for admission. La. C.C.P. art. 1466 authorizes requests for admission of “relevant matters of fact, including the genuineness of ... documents described in the request.” However, based on the wording of the request for admissions of fact, I conclude that the existence and genuineness of the note is admitted based on the defendant/appellant’s failure to answer the request for admissions. See Succession of Rock, 340 So.2d 1325, 1331 (La.1976), Ball Mktg. Enter. v. Rainbow Tomato Co., 340 So.2d 700, 702 (La.App. 3rd Cir.1976). Accordingly, I agree that the default judgment is properly reversed but not because plaintiff failed to establish the genuineness of the note.

      . Mr. Marshall was not named as a defendant in the petition, nor was it alleged that he was individually liable on the promissory note,

      . Although Mr. Grevemberg argues on appeal that the transcript is only a partial transcript, he did not seek to supplement the record on appeal with any additional transcript or note of evidence. See La. C.C.P. art. 2132. The official certificates of the clerk of the trial court and the court reporter as to the completeness of the record are thus entitled to deference. To his credit, Mr. Grevemberg's counsel freely admitted in his testimony to the trial court that although he was retained on a contingent fee basis of 40% of any recovery after trial, he did not feel that an award of attorney fees based upon that percentage would constitute the “reasonable attorney fees” recoverable under the note’s terms. Instead, he suggested an award of $30,000.00, which was accepted by the trial court.

      . According to the copy of the note attached to the petition, the note also provided that its interest was to be “compounded annually” and the trial court's oral reasons recited that the interest in the judgment was to be so compounded. However, the signed judgment provided only for "interest in the amount of eight (8%) percent thereon, accruing annually.” Thus, the judgment interest must be construed to be simple interest, rather than compound interest. See La. C.C. art. 2001, La. R.S. 9:3500, and Seals v. Morris, 465 So.2d 140 (La.App. 1st Cir.1985).

      . Even if the original promissory note is attached to the plaintiff's petition, such does not constitute proper proof of the claim on the note; it is simply a part of the pleadings. Id., citing La. C.C.P. art. 853 and Jackson v. Gordon, 381 So.2d 520, 521 (La.App. 1st Cir. 1980). Pleadings are not evidence. In re Melancon, 05-1702, p. 7 (La.7/10/06), 935 So.2d 661, 666.

      . The request sought admissions as to most of the petition’s allegations, including admissions that the attached note was signed by Mr. Marshall in favor of Mr. Grevemberg; that on the face of the note, Strategic Forecasting, L.L.C. was the obligor; that no payments were ever made on the note and that it was due and payable; that due to the business reorganizations, all of the defendants were obligors on the note; and that "George Friedman is liable for the indebtedness represented by the installment note attached as Exhibit 'A'.” The latter two matters seem to address ultimate legal conclusions rather than facts. Louisiana Code of Civil Procedure article 1466 does not authorize a request for admission of a conclusion of law. Instead, the article authorizes only requests for admission of "relevant matters of fact” and the genuineness of documents. Ball Mktg. Enter, v. Rainbow Tomato Co., 340 So.2d 700, 702 (La.App. 3rd Cir.1976).

      . The eight affidavits of service executed by Ms. Rivere and introduced at the hearing each bear the caption, "Affidavit of Individual Mailing of Citation and Petition to Defendant.” They differ from the affidavits of service previously filed in the record in that each affidavit (including two relating to Mr. Friedman) recites that Ms. Rivere “obtained a certified copy of the Request for Admissions of Fact” from the clerk of court, and that she mailed "a certified copy of the citation, and of the petition, to the defendant ... by certified mail.” (Emphasis supplied.) Thus, none of the affidavits verify the service by certified mail of the request for admissions on any defendant. See La. R.S. 13:3204(A) and 13:3205. There being no competent proof of service of the request upon Mr. Friedman, the matters set forth therein cannot constitute admissions by reason of any failure to respond. Additionally, La. C.C.P. art. 1474(C)(2) provides that "[i]f ... requests [for production or admissions] ... or responses are to be used at trial or are necessary to a pretrial motion which might result in a final order [szc] on any issue, the portions to be used shall be filed in the proceedings at the outset of the trial or at the filing of the motion insofar as their use can be reasonably anticipated.” That language might conceivably be read as authorizing the trial court's consideration of discovery pleadings filed in the record without their formal introduction into evidence. The request for admissions at issue here was in fact filed in the record. However, paragraph D of the article expressly provides that the article’s provisions "shall not be construed to preclude the filing of any discovery materials as exhibits or as evidence in connection with a motion or at trial.” (Emphasis supplied.) If it would be sufficient to simply file discovery pleadings in the record instead of formally introducing them into evidence at a hearing (other than as authorized by La. C.C.P. art. 966 for a motion for summary judgment) or a trial, then paragraph D's language would be superfluous.


author: McDonald, j. WHIPPLE, J.

text:
    Robert Gene WEBB v. THE PARISH OF ST. TAMMANY, Recreational District No. 1, the Louisiana Department of Transportation and Development, XYZ Management Company, ABC Insurance Company and 123 Insurance Company.
    No. 2006 CA 0849.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 9, 2007.
    Writ Denied April 27, 2007.

      Hector R. Lopez, Brian G. Meissner, Rykert O. Toledano, Jr., Gordon R. Her-rin, Covington, Counsel for Plaintiff/Appellant Robert Gene Webb.
    Stephen D. Enright, Jr., Lauren E. Brisbi, Metairie, Counsel for Defendant/Appellee Recreation District Number 1 of St. Tammany Parish.
    Before: CARTER, C.J., WHIPPLE and McDonald, jj.
   McDonald, j.

^Plaintiff, Robert Gene Webb, appeals a district court judgment granting the defendant’s motion for summary judgment. We affirm.

FACTUAL AND PROCEDURAL HISTORY

On April 18, 2002, Mr. Webb participated in an organized softball game at Pelican Park in Mandeville, Louisiana. Upon completion of the game, Mr. Webb mounted his motorcycle in the parking lot adjacent to the softball field and prepared to leave the park. Just before he exited the parking lot onto the roadway leading out of the park, the lights on the softball field, which had provided incidental lighting to the roadway, were extinguished. Thereafter, while still on park property, Mr. Webb failed to properly negotiate an “S” curve in the roadway and lost control of his motorcycle. As a result, Mr. Webb landed in a storm drain near the roadway, sustaining severe personal injuries.

Mr. Webb subsequently filed suit against various defendants, including Recreation District Number One of St. Tammany Parish (the District), the operator of Pelican Park. The District filed a motion for summary judgment, contending that it was entitled to immunity pursuant to LSA-R.S. 9:2795. After a hearing, the district court granted the motion in open court. A judgment granting the motion and dismissing Mr. Webb’s claims against the District was signed on December 8, 2005. It is from this judgment that Mr. Webb has appealed.

APPLICABLE LAW

Appellate courts review summary judgments de novo under the same criteria that govern the trial court’s determination of whether a summary judgment is appropriate. Duplantis v. Dillard’s Dept. Store, 2002-0852, p. 5 (La.App. 1 Cir. 5/9/03), 849 So.2d 675, 679, writ denied, 2003-1620 (La.10/10/03), 855 So.2d |a350. A motion for summary judgment should only be granted if the pleadings, depositions, answers to interrogatories and admissions on file, together with any affidavits, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(B).

The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial, its burden on the motion does not require it to negate all essential elements of the adverse party’s action, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary proof at trial, there is no genuine issue of material fact. LSA-C.C.P. art. 966(C)(2). Because it is the applicable law that determines materiality, whether a particular fact in dispute is “material” for summary judgment purposes can be seen only in light of the substantive law applicable to the case. Dickerson v. Piccadilly Restaurants, Inc., 99-2633, pp. 3-4 (La.App. 1 Cir. 12/22/00), 785 So.2d 842, 844.

Louisiana Revised Statute 9:2795 provides:

A. As used in this Section:
(1) “Land” means urban or rural land, roads, water, watercourses, private ways or buildings, structures, and machinery or equipment when attached to the realty-
(2) “Owner” means the possessor of a fee interest, a tenant, lessee, occupant or person in control of the premises.
(3) “Recreational purposes” includes but is not limited to any of the following, or any combination thereof: hunting, fishing, trapping, swimming, boating, camping, picnicking, hiking, horseback riding, bicycle riding, motorized, or nonmotor-ized vehicle operation for recreation purposes, nature study, water skiing, ice skating, roller skating, roller blading, skate boarding, sledding, snowmobiling, snow skiing, summer and winter sports, or viewing or enjoying historical, archaeological, scenic, or scientific sites.
14(4) “Charge” means the admission price or fee asked in return for permission to use lands.
(5) “Person” means individuals regardless of age.
B.(1) Except for willful or malicious failure to warn against a dangerous condition, use, structure, or activity, an owner of land, except an owner of commercial recreational developments or facilities, who permits with or without charge any person to use his land for recreational purposes as herein defined does not thereby:
(a) Extend any assurance that the premises are safe for any purposes.
(b) Constitute such person the legal status of an invitee or licensee to whom a duty of care is owed.
(c) Incur liability for any injury to person or property caused by any defect in the land regardless of whether naturally occurring or man-made.
(2) The provisions of this Subsection shall apply to owners of commercial recreational developments or facilities for injury to persons or property arising out of the commercial recreational activity permitted at the recreational development or facility that occurs on land which does not comprise the commercial recreational development or facility and over which the owner has no control when the recreational activity commences, occurs, or terminates on the commercial recreational development or facility.
C. Unless otherwise agreed in writing, the provisions of Subsection B shall be deemed applicable to the duties and liability of an owner of land leased for recreational purposes to the federal government or any state or political subdivision thereof or private persons.
D. Nothing in this Section shall be construed to relieve any person using the land of another for recreational purposes from any obligation which he may have in the absence of this Section to exercise care in his use of such land and in his activities thereon, or from the legal consequences of failure to employ such care.
E. (1) The limitation of liability provided in this Section shall apply to any lands or water bottoms owned, leased, or managed by the Department of Wildlife and Fisheries, regardless of the purposes for which the land or water bottoms are used, and whether they are used for recreational or nonrecreational purposes.
(2)(a) The limitation of liability provided in this Section shall apply to any lands, whether urban or rural, which are owned, leased, or managed as a public park by the state or any of its political subdivisions and which are used for recreational purposes.
(b) The provision of supervision on any land managed as a public park by the state or any of its political subdivisions does not create any ^greater duty of care which may exist and does not ere-ate a duty of care or basis of liability for personal injury or for damage to personal property caused by the act or omission of any person responsible for security or supervision of park activities, except as provided in Subparagraph (E)(2)(d) of this Section.
(c) For purposes of the limitation of liability afforded to parks pursuant to this Section this limitation does not apply to playground equipment or stands which are defective.
(d) The limitation of liability as extended to parks in this Section shall not apply to intentional or grossly negligent acts by an employee of the public entity.
F. The limitation of liability extended by this Section to the owner, lessee, or occupant of premises shall not be affected by the granting of a lease, right of use, or right of occupancy for any recreational purpose which may limit the use of the premises to persons other than the entire public or by the posting of the premises so as to limit the use of the premises to persons other than the entire public.

DISCUSSION

In his first assignment of error, Mr. Webb contends that the district court erred in granting summary judgment because the District failed to demonstrate that it did not willfully or maliciously fail to warn against a dangerous condition on the park property. The parties do not dispute that the District operated Pelican Park or that the park was made available to the public for recreational purposes. It is further undisputed that Mr. Webb had gone to Pelican Park on the day in question to participate in recreational activities. Thus, as the party moving for summary judgment, the District had sustained its initial burden of proof and established a prima facie case that it was entitled to immunity pursuant to LSA-R.S. 9:2795.

After the District carried its initial burden, the burden shifted to Mr. Webb to prove the existence of an unreasonably dangerous condition on the park property. However, Mr. Webb failed to introduce any evidence that any such condition existed on the property. Therefore, Mr. Webb failed to demonstrate that he would be able to meet his burden of proof at trial.

|,¡In his second assignment of error, Mr. Webb contends that the trial court erred in granting summary judgment because there was a genuine issue of material fact as to whether he was engaging in recreational activity at the time of the accident. According to Mr. Webb, because the softball game had been completed, and he was merely exiting the park at the time of the accident, the District was no longer entitled to the immunity provided by LSA-R.S. 9:2795.

A plain reading of the statute does not provide support for this argument. The statute does not require that the injury arise out of the recreational activity per se, as long as the person injured was on the property for a recreational purpose. Cooper v. Cooper, 34,717, p. 6 (La.App. 2 Cir. 5/9/01), 786 So.2d 240, 244, writ denied, 2001-1681 (La.9/21/01), 797 So.2d 675. The record is clear that Mr. Webb went to Pelican Park on the date of the accident to participate in recreational activities, and he was still on park property at the time of the accident. Thus, we find no merit in this assignment of error.

In his final assignment of error, Mr. Webb avers that the district court erred in granting the summary judgment because there were genuine issues of material fact about whether he was on land used for recreational purposes at the time of the incident. In support of this argument, Mr. Webb relies on the jurispru-dentially established three-prong test for determining whether the property in question is used for recreational purposes within the meaning of the statute. Specifically, Mr. Webb relies on the first prong, which requires that the property on which the injury occurs must be an undeveloped, nonresidential, and rural or semi-rural locale. Johnson v. City of Morgan City, 99-2968, p. 3 (La.App 1 Cir. 12/22/00), 787 So.2d 826, 329, writ denied, 01-0134 (La.3/16/01), 787 So.2d 315. Mr. Webb suggests that this prong has not been met because at the time of the accident, he was exiting the park on a paved, developed road. He further contends that the road |7was not intended or used for recreational purposes as it was merely intended to provide access to and from the park.

We note that the incident in Johnson occurred prior to the 2001 amendment of LSA-R.S. 9:2795, which extended the provisions of the statute to urban lands as well. Therefore, the plain language of the statute does not preclude its application to the paved road on Pelican Park property. Furthermore, the record is clear that Mr. Webb was still on park property at the time of the accident, and that the park was used for recreational purposes. Thus, his specific location on the property is irrelevant.

After a de novo review of the record, we find no error in the judgment of the district court. Accordingly, we affirm the judgment of the district court. All costs of this appeal are assessed to Robert Gene Webb.

AFFIRMED.

WHIPPLE, J., concurs for reasons assigned.

WHIPPLE, J.

concurring.

bln accordance with the recreational use immunity statute, after the District carried its initial burden, the burden shifted to Mr. Webb to prove the existence of an unreasonably dangerous condition on the park property and the District’s willful or malicious failure to warn of such a condition. See LSA-R.S. 9:2725(B). Pretermitting whether Mr. Webb made a showing of willful or malicious failure to warn, clearly, Mr. Webb failed to introduce any evidence that any such unreasonably dangerous condition existed. Therefore, as the majority correctly notes, Mr. Webb failed to make the required showing that he would be able to meet his burden of proof at trial. For these reasons, I concur in the majority’s decision to affirm the judgment of the district court.

      . The District is interchangeably referred to throughout the record as "Recreational District No. 1," "Recreation District No. 1,” and "Recreation[al] District Number One.”

      . We do not address the continued applicability of Johnson in light of the amendment; rather, we merely note that the amended language of the statute specifically indicates that it is applicable to this property.