author: CARTER, C.J.

text:
    Lynelle JOHNSON v. BLUE HAVEN POOLS OF LOUISIANA, INC.
    No. 2005 CA 0197.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 10, 2006.

      Stephen C. Carleton, Bridget B. Denieo-la, Baton Rouge, for Defendant-Appellant, Blue Haven Pools of Louisiana, Inc.
    Penrose C. St. Amant, Gonzales, for Plaintiff-Appellee, Lynelle Johnson.
    Before: CARTER, C.J., DOWNING, and GAIDRY, JJ.
   CARTER, C.J.

12This appeal involves a legal question of whether to stay or compel arbitration.

FACTS

On April 4, 2003, Lynelle Johnson entered into a contract with Blue Haven Pools of Louisiana, Inc. (Blue Haven) for the construction of a swimming pool. The price was set at $39,423.00, with a ten percent down payment of $3,940.00. The one-page standard form swimming pool contract was signed by the parties and contained an arbitration clause that provided: “THIS AGREEMENT IS SUBJECT TO ARBITRATION UNDER THE COMMERCIAL ARBITRATION RULES OF THE AMERICAN ARBITRATION ASSOCIATION.” Ms. Johnson placed her initials on a line next to the arbitration provision.

In a separate box at the bottom of the contract, were the following words: “YOU, THE BUYER, MAY CANCEL THIS TRANSACTION AT ANY TIME PRIOR TO MIDNIGHT OF THE THIRD BUSINESS DAY AFTER THE DAY OF THIS TRANSACTION- SEE THE ATTACHED NOTICE OF CANCELLATION FORM AND EXPLANATION OF THIS RIGHT.” The notice of cancellation form was located on the left side of the printed swimming pool contract in a separately-outlined area. Ms. Johnson signed the line on the notice of cancellation form indicating that she had been advised of her right to cancel the contract.- The notice of cancellation read, in pertinent part:

NOTICE OF CANCELLATION
4 — 4—03
DATE
RYou may cancel this transaction, without any penalty or obligation, within three business days from the above date.
If you cancel, any property traded in, any payments made by you under the contract or sale, and any negotiable instrument executed by you will be returned within 10 days following receipt by the seller of your cancellation notice[.] ...
* ⅜ *
To cancel this transaction, mail or deliver a. signed and dated copy of this cancellation notice, or any other written notice, or send a telegram to:
BLUE HAVEN POOLS at Baton Rouge, LA (Address of Branch Office)
NO LATER THAN MIDNIGHT OF 4 — 9—03
DATE
I hereby cancel this transaction
DATE (Buyer’s Signature)
THE UNDERSIGNED HEREBY ACKNOWLEDGED RECEIPT OF THIS NOTICE AND HAS BEEN TOLD VERBALLY OF HIS RIGHT TO CANCEL THIS CONTRACT.
X (Signed by Lynelle Johnson)
Buyer’s Signature
Co-Buyer’s Signature 4 — 4—03
DATE

On April 6, 2004, Ms. Johnson filed a lawsuit for the return of her $3,940.00 deposit, alleging that she had canceled the contract within three business days of its execution and Blue Haven had refused to refund the down payment. Blue Haven responded to the lawsuit by filing a dilatory exception raising the objection of prematurity based on the arbitration clause |4in the contract. Additionally, Blue Haven filed a separate motion to stay the proceedings pending arbitration required by the contract.

After a hearing, the trial court signed a judgment on September 30, 2004, denying Blue Haven’s exception of prematurity as well as its motion to stay. In oral reasons, the trial court stated: “the Notice of Cancellation that’s on the left-hand side of the contract ... it’s as if that is separate from the main part of the contract.... I frankly believe that ... the arbitration clause refers to disputes that often come up with pool companies over and over again, ... in the way the pool is built[.] ... It appears to me from reading the contract that ‘without any penalty or obligation,’ ... excludes arbitration!!] ... [I]n my opinion, ... the arbitration clause ... does not apply to that Notice of Cancellation, or at least it’s not clear.... The Court is going to deny the exception based on the ambiguous language in the contract.” Blue Haven appealed, contending that the trial court committed manifest error when it denied its exception and motion.

LAW AND ANALYSIS

At the outset, we recognize a recent case, Aguillard v. Auction Management Corp., 04-2804 (La.6/29/05), 908 So.2d 1, 7-8, wherein the Louisiana supreme court observed that the positive law of Louisiana favors arbitration, and any doubt concerning the scope of arbitrable issues should be resolved in favor of arbitration. The supreme court explained in Aguillard, 908 So.2d at 8, that “states may invalidate an arbitration clause ‘upon such grounds as exist at law or in equity for the revocation of any contract.’ ” (Quoting Allied-Bruce Terminix Cos., Inc. v. Dobson, 513 U.S. 265, 281, 115 S.Ct. 834, 843, 130 L.Ed.2d 753 (1995).) The supreme court held that a presumption of arbitrability exists, and “even when the scope of an arbitration clause is fairly debatable or reasonably in doubt, the court should decide the question of construction in favor of arbitration. The weight of this presumption is heavy and arbitration should not be denied unless it can be said with positive assurance that an arbitration clause is not susceptible of an interpretation that could cover the dispute at issue.” (Emphasis added.) Id. at 18. See also Lakeland Anesthesia, Inc. v. CIGNA Healthcare of La., Inc., 01-1059 (La.App. 4 Cir. 2/6/02), 812 So.2d 695, 698.

Arbitration is a substitute for litigation. Billieson v. City of New Orleans, 02-1993 (La.App. 4 Cir. 9/17/03), 863 So.2d 557, 559, writ denied, 04-0563 (La.4/23/04), 870 So.2d 303. The parties may submit all their differences or only some of them. LSA-C.C. art. 3102. A provision in any written contract to settle by arbitration is valid, irrevocable, and enforceable except upon grounds that exist in law or equity for the revocation of the contract. See LSA-R.S. 9:4201.

The determination as to whether to stay or compel arbitration is a question of law. Hansford v. Cappaert Manufactured Housing, 40,160 (La.App. 2 Cir. 9/21/05), 911 So.2d 901, 904; Billieson, 863. So.2d at 560; Conagra Poultry Co. v. Collingsworth, 30,155 (La.App. 2 Cir. 1/21/98), 705 So.2d 1280, 1281. The standard of appellate review for questions of law is simply to determine whether the trial court was legally correct or incorrect. Cangelosi v. Allstate Ins. Co., 96-0159 (La. App. 1 Cir. 9/27/96), 680 So.2d 1358, 1360, writ denied, 96-2586 (La.12/13/96), 692 So.2d 375. If the trial court’s decision was based on an erroneous | .interpretation or application of law, rather than a valid exercise of discretion, such incorrect decision is not entitled to deference by the reviewing court. Conagra Poultry Co., 705 So.2d at 1281-82.

The threshold inquiry is whether the parties have agreed to arbitrate the dispute in question. Johnson’s Inc. v. GERS, Inc., 34,268 (La.App. 2 Cir. 1/24/01), 778 So.2d 740, 743. This determination involves two considerations: (1) whether there is a valid agreement to arbitrate between the parties; and (2) whether the dispute in question falls within the scope of the arbitration agreement. Id.

With these legal principles in mind, we review the swimming pool contract at issue. A close reading of the contract reveals the parties agreed that the contract was to be subject to arbitration. However, the parties also agreed that the contract could be canceled at any time prior to midnight of the. third business day after the day the contract was signed. The notice of cancellation form was a subpart of the contract and was specifically referred to in the contract as an attachment. The “attached notice of cancellation form” was located separate and apart from the main contract form which covered such items as location and size of the pool, specifications for the. construction of the pool, time constraints for the building of the pool, equipment for the pool, a payment schedule, arbitration clause, and signature lines. The notice of cancellation form clearly states that if the buyer cancels, “any payments made by [the buyer] under the contract or sale, ... will be returned within 10 days following receipt by the. seller of [the] cancellation notice[.]’’

Neither the notice of cancellation form or the arbitration clause contains any language regarding the applicability of the arbitration clause to |7the validity of the entire contract in case of a dispute over the cancellation of the contract. Additionally, the arbitration clause in the contract does not contain any language that would define the scope of arbitration broadly, so as to include disputes over the separate notice of cancellation form attached to the contract. What is ultimately at issue here, but is not before this court at this time, is whether the contract was timely canceled. If it was timely canceled, revoked, or terminated, then there is no contract, and thus, no arbitration clause. A written contract may be modified, abrogated, or nullified by mutual consent of the parties. See LSA-C.C. arts.1906 and 1983; Williams Engineering, Inc. v. Goodyear, 480 So.2d 772, 776 (La.App. 5 Cir.1985); Ed Bulliard Co., Inc. v. Foretich-Zimmer Const. Co., Inc., 451 So.2d 29, 31 (La.App. 3 Cir.), writ denied, 456 So.2d 169 (La.1984). Although law and policy both favor arbitration, neither can supply an agreement to arbitrate where there is none. Hansford, 911 So.2d at 906.

Our interpretation of the swimming pool contract is in accord with the trial court’s understanding that the arbitration clause refers only to disputes involving the actual contract such as the construction of the pool, equipment for the pool, the agreed-upon payment schedule, the time-frame for building the pool, or any of the other numerous disputes that may arise during the construction of a pool. In contrast, the notice of cancellation form allows the buyer to cancel “without any penalty or obligation” within three business days of the contract date. Therefore, it is apparent that the buyer’s duty to arbitrate is an obligation under the contract only. The notice of cancellation explicitly and positively cancels any obligation under the contract, including the obligation that Ms. Johnson had to arbitrate. Thus, we conclude that the arbitration clause does not, as written, apply to any dispute regarding the | ¿timeliness of the notice of cancellation of the contract and/or the return of the down payment.

We find that because the validity/timeliness of the cancellation of the contract is at issue, and therefore, the validity of the arbitration clause in the contract is at issue, the trial court correctly declined to direct the parties to proceed to arbitration. See LSA-R.S. 9:4203 (providing in pertinent part: “If the making of the arbitration agreement or the failure or refusal to perform is an issue, the court shall proceed summarily to the trial thereof.”). See also Conagra Poultry Co., 705 So.2d at 1282 (holding that the issue of whether the contract containing the arbitration clause is valid and enforceable must first be resolved before ordering arbitration).

CONCLUSION

For the stated reasons, we affirm the trial court’s judgment denying Blue Haven’s dilatory exception raising the objection of prematurity and motion to stay. Blue Haven is cast with all costs of this appeal. This case is hereby remanded to the trial court for further proceedings regarding the validity/timeliness of the cancellation of the contract. If it is ultimately determined that Ms. Johnson did not timely cancel the swimming pool contract, the matter must be submitted for arbitration at that point in time, in accordance with the terms of the contract.

AFFIRMED AND REMANDED.

      . A judgment denying a request for arbitration has been held to be an appealable, interlocutory order. Aguillard v. Auction Management Corp., 04-2804 (La.6/29/05), 908 So.2d 1, 6 n. 5.


source: Caselaw Access Project

author: GAIDRY, J.

license: Public Domain

text:
    STATE of Louisiana v. Jason LeBLANC.
    No. 2005 KA 0885.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 10, 2006.

      Anthony G. Falterman, District Attorney, Donald D. Candell, Assistant District Attorney, Gonzales, Counsel for Appellee State of Louisiana.
    Laura M. Pavy, New Orleans, Counsel for Defendant/Appellant Jason LeBlanc.
    Before: CARTER, C.J., DOWNING, and GAIDRY, JJ.
   GAIDRY, J.

|2The defendant, Jason LeBlanc, was indicted on one count of vehicular homicide, a violation of La. R.S. 14:32.1. He pleaded not guilty and was tried before a jury. The jury found defendant guilty as charged. The trial court sentenced defendant to a term of ten years at hard labor, with one year of the sentence to be served without benefit of probation, parole, or suspension of sentence. The trial court also suspended two years of the sentence and imposed a fine of $2,000.00. Defendant appeals, assigning one error by the trial court. We affirm.

FACTS

Alicia Marie Terrebonne, the sixteen-year-old victim, was due to return home around midnight on February 9, 2003 from her high school’s “Sadie Hawkins” dance. Shortly before midnight, she telephoned her parents to advise them she was on her way home. After receiving another telephone call from Alicia’s boyfriend at approximately 12:15 a.m., her father, John Terrebonne, became concerned and left home to look for her.

The Terrebonnes resided on Cemetery Road in Gonzales, Louisiana, only about a third of a mile from its intersection with Louisiana Highway 932. As he turned out of his driveway, Mr. Terrebonne observed flashing emergency lights near the intersection. Upon arriving at the intersection, he encountered an accident scene secured by police and emergency personnel. Mr. Terrebonne initially thought his daughter had been delayed in traffic due to the accident, but then noticed his daughter’s automobile in the ditch on the left side of Louisiana Highway 932. After exiting his truck and attempting to go to his daughter’s automobile, Mr. Terrebonne was advised by a deputy sheriff that his daughter had been killed in the accident.

|sTwo eyewitnesses to the accident testified at trial. Chad Sagona testified that he was driving on Roddy Road/Joe Sevario Road (Louisiana Highway 932) with a passenger when he noticed a vehicle (later determined to be driven by defendant) approach him from the rear at a high rate of speed and remain very close behind him. As Mr. Sagona came to an intersection with a four-way stop sign, he brought his vehicle to a slow stop to allow the vehicle behind him enough time to stop also. Mr. Sagona explained that he then accelerated rather quickly from the stop sign in order to gain some distance between his vehicle and the following vehicle as they continued on Highway 932. According to Mr. Sago-na, the vehicle behind him was moving very fast and came in close proximity to the rear of his vehicle.

As Mr. Sagona approached the intersection of Norwood Road, he activated his right turn signal and noticed another vehicle immediately ahead (Alicia’s automobile), and activated his left turn signal, preparing to turn left onto Cemetery Road. Defendant’s vehicle passed Mr. Sa-gona’s without slowing down, as Mr. Sago-na was turning right onto Norwood Road. Given the speed of defendant’s vehicle as it passed his, Mr. Sagona exclaimed to his passenger that “there was about to be a wreck.” Defendant’s vehicle then struck Alicia’s vehicle as she was in the process of turning, and the collision propelled the vehicles in opposite directions. The vehicles came to rest in opposite ditches along Highway 932.

Immediately following the collision, Mr. Sagona stopped, got out of his vehicle and went over to where defendant’s vehicle had come to rest in an adjacent ditch. By the time Mr. Sagona arrived, defendant had already exited his vehicle. Mr. Sagona asked defendant if he was all right and defendant replied, “Yeah. You might want to check on that car down there.” |4While defendant stayed near the roadway, Mr. Sagona went to the other automobile and found Alicia unconscious and her driver’s door jammed. When Mr. Sagona returned to the roadway, defendant requested a cigarette lighter, to which Sagona replied that the last thing defendant needed to worry about at that time was a cigarette. Defendant responded by calling Mr. Sagona a “punk.”

Ashley Patton was Mr. Sagona’s passenger on the night of the accident and also witnessed the accident. Her testimony corroborated that of Mr. Sagona as to the left turn signal of Alicia’s automobile being activated prior to the collision and the simultaneous nature of the turning maneuvers by Alicia and Mr. Sagona. Ms. Patton testified that after defendant’s vehicle passed them, it struck Alicia’s vehicle on the driver’s side. Ms. Patton further confirmed Mr. LeBlanc’s request for a cigarette lighter after the collision.

Shawn Meeks was a minister and the pastor of the Galvez Pentecostal Church located near the accident scene who lived on Cemetery Road at the time of the accident. Around midnight on February 9, 2003, Rev. Meeks was in bed and heard a “tremendous” collision. He immediately telephoned 911, dressed, and went to the accident scene. Rev. Meeks approached Alicia’s automobile in the ditch and saw that she was seriously injured. As he could not get closer to her to render assistance, he placed his hands on the passenger’s side windows and prayed for her until the paramedics arrived. Later that night, as Rev. Meeks was standing near defendant, he heard defendant state, “Oh, shit, I guess this will be another DUI for me.”

Trooper Matthew Sinanan of the Louisiana State Police was the first trooper on the scene. When he arrived, an Ascension Parish Sheriffs deputy was already on the scene and had detained defendant in the back of her Dpatrol unit. After learning that the accident involved a fatality, Trooper Sinanan approached defendant and opened the door of the deputy sheriffs unit. Upon opening the door of the deputy sheriffs unit, Trooper Sinanan smelled a strong odor of alcoholic beverage inside the vehicle. Trooper Sinanan advised defendant of his constitutional rights, and defendant indicated he understood them. Upon speaking with defendant, Trooper Sinanan observed that he had “glassy” and bloodshot eyes, slurred speech, and that he swayed when he stood outside the unit. The odor of alcoholic beverage came from defendant’s breath. Based upon the described physical characteristics and defendant’s conduct, it was “very clear” to Trooper Sinanan that defendant was under the influence of alcohol.

State Police Trooper William Hunter also arrived at the scene to assist. Trooper Sinanan directed Trooper Hunter to administer a field sobriety test to defendant. Trooper Hunter also advised defendant of his constitutional rights, and defendant indicated that he understood them. After Trooper Hunter asked defendant to perform the field sobriety test, defendant consented, and then admitted that he was “drunk and should not have been on the road.” Defendant further admitted to Trooper Hunter that he had consumed three large daiquiris at Extreme Daiquiris.

Defendant performed poorly on all three portions of the field sobriety test, which included the horizontal gaze nystagmus test, the walk-and-turn test, and the one-leg stand test. Trooper Hunter also detected a strong odor of alcoholic beverage on defendant’s breath. He also noted defendant swayed when standing and slurred his speech. Trooper Hunter placed defendant under arrest and transported him to the Gonzales Police Department headquarters, where defendant consented to the administration | fiof a blood-alcohol breath test. The results of the blood-alcohol breath test indicated a reading of .159 per cent.

Meanwhile, Trooper Sinanan conducted his investigation of the scene of the accident. Describing the physical evidence he observed, Trooper Sinanan explained that there was a four-foot skid mark in defendant’s lane of travel just prior to the point of impact point with Alicia’s vehicle, but no other physical evidence that defendant made any attempt to stop prior to the accident. Despite objection by defendánt, Trooper Sinanan was allowed to offer his observation that the tire marks left by defendant’s vehicle after the collision were not consistent with skid marks, but appeared to be acceleration marks. Over defendant’s further objection, Trooper Si-nanan testified that he observed no physical evidence suggesting that the victim had committed any traffic violation.

ASSIGNMENT OF ERROR

In his sole assignment of error, defendant argues that the trial court erred in allowing the State to present improper opinion testimony in the field of accident reconstruction. Specifically, defendant argues that despite the State’s failure to qualify and offer Trooper Sinanan as an expert in accident reconstruction, he was allowed to offer a number of critical opinions about the mechanics of the accident. The objectionable testimony related in particular to the manner of causation of the tire marks located past the area where the collision occurred. Defendant argues that Trooper Sinanan’s improper opinion testimony served to exonerate the victim of all fault even though it was clear that she turned left into the path of defendant’s overtaking vehicle.

Louisiana Code of Evidence article 701 permits non-expert testimony in the form of opinions or inferences that are rationally based on the |7pereeption of the witness and helpful to a clear understanding of his testimony or the determination of a fact in issue. Moreover, opinion testimony has been permitted by non-expert police officers based on training, investigation, perception of the scene and observation of physical evidence. Cooper v. Louisiana State Department of Transportation and Development, 2003-1847, p. 4 (La.App. 1st Cir.6/25/04), 885 So.2d 1211, 1214, writ denied, 2004-1913 (La.11/8/04), 885 So.2d 1142.

Trooper Sinanan testified that he had been a trooper for nearly seven years and had participated in hundreds of motor vehicle accident investigations. According to Trooper Sinanan, the physical evidence at the scene was consistent with the witness accounts of the accident. Trooper Sina-nan testified that the physical evidence indicated defendant’s vehicle left skid marks consistent with braking four feet before impact. The point of impact to Alicia’s automobile was at the driver’s side between the driver’s door and rear passenger door. Trooper Sinanan also testified that based upon their physical characteristics and appearance, the tire marks left by defendant’s vehicle following the collision were consistent with acceleration as opposed to braking. Trooper Sinanan further testified based on his education and experience in accident reconstruction, that the physical evidence did not suggest the victim committed any traffic violation.

The general rule is that a lay witness is permitted to draw reasonable inferences from his or her personal observations. If the testimony constitutes a natural inference from what was observed, no prohibition against it as the opinion of a non-expert exists as long as the lay witness states the observed facts as well. State v. Casey, 99-0023, p. 12 (La.1/26/00), 775 So.2d 1022, 1033, cert. denied, 531 U.S. 840, 121 S.Ct. 104, 148 L.Ed.2d 62 (2000). A reviewing court must ask two pertinent questions |sto determine whether the trial court properly allowed lay opinion testimony: (1) was the testimony speculative opinion evidence or simply a recitation of or inferences from fact based upon the witness’s observations; and (2) if erroneously admitted, was the testimony so prejudicial to the defense as to constitute reversible error. Id.

If the reviewing court determines that lay opinion testimony was improperly admitted, it must then proceed to the next question: whether that testimony was so prejudicial to the defense as to constitute reversible error. Erroneous admission of evidence requires reversal only where there is a reasonable possibility that the evidence might have contributed to the verdict. Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967). Stated somewhat differently, the inquiry is whether the reviewing court may conclude that the error was harmless beyond a reasonable doubt, that is, whether the guilty verdict actually rendered was unattributable to the error. State v. Casey, 99-0023 at p. 13, 775 So.2d at 1033.

It has consistently been held that a law officer may testify as to matters within his personal knowledge acquired through his experience without first being qualified as an expert. See State v. Lowery, 609 So.2d 1125, 1128 (La.App. 2nd Cir.1992), writs denied, 617 So.2d 905 (La.1993). However, if a law officer such as a state police trooper is not qualified as an accident reconstruction expert, his testimony in the form of opinions is limited to those opinions based upon his rational perception of the facts and recollections pertaining to the scene of the accident. Whetstone v. Dixon, 616 So.2d 764, 768 (La. App. 1st Cir.), writs denied, 623 So.2d 1333 (La.1993). Although Trooper Sinanan was not qualified as an expert, it is apparent from the record that most of his lay opinion testimony was Ijimited to opinions based on his rational perceptions of the physical evidence of the accident scene.

However, we agree with defendant that Trooper Sinanan’s opinion testimony relating to the manner of causation of the post-accident tire marks from defendant’s vehicle was improperly admitted, as such testimony went beyond natural inferences from observed physical evidence and fell within the realm of “scientific, technical, or other specialized knowledge” which is the hallmark of expert testimony. Over defendant’s objection, Trooper Sinanan was allowed to present testimony that “striations” in the skid marks parallel to the vehicle’s drive shaft were characteristic of “yaw” due to acceleration rather than braking, but he offered no factual explanation of the basis of such conclusions. See La. C.E. art. 705(B). His use of such technical terms as “striations” and “yaw” demonstrate that the opinion testimony at issue was derived from technical training or education rather than natural, reasonable inference or purely personal experience. But we disagree that its admission constitutes reversible error, mandating reversal and a new trial.

Trooper Sinanan unequivocally concluded that “[everything [the other tire marks from both vehicles] after that four-foot skid mark was post [sic ], after the collision.” Thus, the issue of whether the tire marks made by defendant’s vehicle past the point of impact were caused by acceleration or braking had no bearing on defendant’s actions leading up to the fatal collision, as those marks were made after the collision had already occurred. Given Trooper Sinanan’s other testimony that the four-foot- skid mark was caused by braking of defendant’s vehicle prior to impact, the guilty verdict was certainly unattributable to any opinion regarding post-collision movement of defendant’s vehicle. We therefore conclude that there is no | ^reasonable possibility that the erroneously-admitted testimony contributed to the verdict, and that its admission was harmless error.

As to the testimony regarding the absence of physical evidence of any traffic violation by Alicia, our review of such testimony shows that it did not amount to an opinion on the issue of ultimate fault for the accident, but rather testimony based upon Trooper Sinanan’s rational perceptions of the absence of any physical evidence documenting movement by Alicia’s automobile prior to impact. As such, the trial court did not abuse its discretion in permitting such testimony.

In summary, from our review of the record, we find no abuse of discretion in the trial court’s rulings admitting lay opinion testimony by Trooper Sinanan, except for that relating to causation of the post-impact tire marks. All of Trooper Sina-nan’s lay opinion testimony on the relevant aspects of the physical evidence he observed was merely cumulative of the eyewitness testimony, and any error in admitting his opinion as to the causation of the post-impact tire marks was clearly harmless. See, e.g., Snearl v. Mercer, 99-1738, p. 32 (La.App. 1st Cir.2/16/01), 780 So.2d 563, 587; Starks v. Kelly, 435 So.2d 552, 555 (La.App. 1st Cir.1983).

The assignment of error is without merit. Accordingly, we affirm the conviction and sentence.

CONVICTION AND SENTENCE AFFIRMED.

      . The evidence showed that Louisiana Highway 932’s intersections with Norwood Road and Cemetery Road are approximately 180 feet apart.


author: GUIDRY, J.

text:
    Anthony PAYTON v. Lynn COOPER, Warden, Avoyelles Correctional Center, Richard Stalder, Secretary of Department of Corrections.
    No. 2005 CA 0127.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 10, 2006.
    Rehearing Denied May 10, 2006.

      Anthony Payton, Cottonport, In Proper Person Plaintiff-Appellant.
    Melinda L. Long, Baton Rouge, Counsel for Defendants-Appellees Lynn Cooper, Richard Stalder, and the Louisiana Department of Public Safety and Corrections.
    Before: KUHN, GUIDRY, and PETTIGREW, JJ.
   GUIDRY, J.

|8An inmate in the custody of the Louisiana Department of Public Safety and Corrections (DPSC) appeals the district court’s dismissal of his petition seeking judicial review of a decision by DPSC refusing to credit him with the accrual of good time in diminution of his sentence.

FACTS AND PROCEDURAL HISTORY

On December 2, 1996, Anthony Payton was sentenced to twenty years imprisonment without the benefit parole, probation or suspension of sentence for the crime of forcible rape. On February 20, 1997, Payton executed a “Good Time Rate Option and Approval Form,” wherein he elected to receive good time at the rate of thirty days for every thirty days in actual custody pursuant to La. R.S. 15:571.3. In 1999, it was discovered that Payton was ineligible to earn good time because his 1996 conviction for forcible rape constituted his second offense crime of violence based on a prior Florida conviction for robbery in 1978. Accordingly, Payton’s prison record was updated to reflect this discovery.

Payton filed an administrative remedy procedure (ARP) contesting DPSC’s refusal to credit him with the accrual of good time. Payton’s ARP was denied at all three levels of review by DPSC, which maintained that Payton was ineligible to earn good time because his 1996 conviction was a second offense crime of violence. After exhausting his administrative remedies with no success, Payton filed suit in the 19th Judicial District Court seeking judicial review of DPSC’s decision. DPSC filed an answer denying the allegations of Payton’s petition and requesting that the court maintain its decision. A commissioner appointed by the district court reviewed the matter and issued a report recommending that the DPSC |3decision be affirmed and that Payton’s petition be dismissed with prejudice. The district court rendered judgment in conformity with the commissioner’s recommendation, which judgment Payton now appeals.

In his appeal, Payton raises two arguments, namely (1) whether the statutory definition of a “crime of violence” can be applied to a crime for which he had been convicted prior to the enactment of the statute; and (2) whether consideration of his 1978 conviction constitutes a ex post facto application of La. R.S. 15:571.3 when applied to enhance his sentence for the 1996 conviction for forcible rape.

At the time of Payton’s 1996 conviction, La. R.S. 15:571.3(D) provided

Diminution of sentence shall not be allowed an inmate in the custody of the Department of Public Safety and Corrections if the instant offense is a second offense crime of violence as defined by R.S. 14:2(13) or was committed during a period of time that the inmate was under the jurisdiction of the department or placed on probation as a juvenile.

Louisiana Revised Statutes 14:2(13), which was enacted in 1992, defines a “crime of violence” as

[A]n offense that has, as an element, the use, attempted use, or threatened use of physical force against the person or property of another, and that, by its very nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense or an offense that involves the possession or use of a dangerous weapon.

The statute also includes a list of such crimes under Louisiana law. Although Payton does not dispute the 1978 Florida conviction, he denies that the conviction was for a crime of violence, because at the time he committed the crime, La. R.S. 14:2(13) did not exist defining the term “crime of violence.” We find no merit in this argument.

While Payton’s 1978 Florida conviction does qualify as a “crime of violence” under the definition provided in La. R.S. 14:2(13), the consequences of |4this classification only applies to Payton’s 1996 offense. This classification does not change the penalty imposed for the 1978 Florida conviction nor does it require Payton to defend past acts charged against him. See State v. Rolen, 95-0347, pp. 4-6 (La.9/15/95), 662 So.2d 446, 448-49. As observed in State v. Girod, 04-854, p. 13 (La.App. 5th Cir.12/28/04), 892 So.2d 646, 653, writ denied, 05-0597 (La.6/3/05), 903 So.2d 455:

[T]he 1992 amendment did not change the definition of the crime or increase the punishment .... Further, the Louisiana Supreme Court has indicated robbery is a violent crime long before the 1992 amendment. See State v. Savoy, 205 La. 650, 663, 17 So.2d 908, 912 (La. 1944), which included robbery, along with “murder or manslaughter, ... or cutting with intent to murder,” as examples of crimes of violence.

Thus, we find no error in DPSC’s consideration of La. R.S. 14:2(13) in evaluating whether Payton’s 1978 conviction would be considered a crime of violence for the purpose of La. R.S. 15:571.3(D).

We likewise find no error in DPSC’s rejection of Payton’s claim that applying La. R.S. 15:571.3(D) to prohibit his accrual of good time is an ex post facto application of that statute. Article I, § 9 of the United States Constitution and article 1, § 23 of the state constitution prohibit applying criminal laws ex post facto. For a criminal or penal law to fall within this prohibition, the law must apply to events occurring before its enactment and must disadvantage the offender affected by it. George v. Baker, 99-0234, p. 5 (La.App. 1st Cir.11/5/99), 746 So.2d 783, 786. To determine whether a statute increasing penalties for future crimes based on past offenses has ex post facto implications, the relevant offense is the current crime, not the predicate crime. State v. Rolen, 95-0347, p. 3 (La.9/15/95), 662 So.2d 446, 448 (quoting United States v. Arzate-Nunez, 18 F.3d 730, 734 (9th Cir.1994)).

Louisiana Acts 1994, Third Extraordinary Session, No. 150, effective August 27, 1994, amended La. R.S. 15:571.3 to deny good time to persons |sconvicted a second time of crimes of violence. Because Payton committed the crime of forcible rape in 1995 and was convicted of the crime in 1996, after the effective date of the 1994 amendment to La. R.S. 15:571.3, he was on notice of the consequence of a second conviction of a crime of violence before he committed forcible rape in 1995. Thus, DPSC’s reliance on La. R.S. 15:571.3(D) to deny Payton the right to earn good time in diminution of his sentence for his conviction of forcible rape is not an ex post facto application of that statute. See George, 99-0234 at 6, 746 So.2d at 786-87.

CONCLUSION

Accordingly, we find DPSC acted properly in denying Payton the right to earn good time based on his having been convicted of a second offense crime of violence as defined by La. R.S. 14:2(13). We affirm the judgment of dismissal by the district court and assess all costs in this matter to the appellant, Anthony Payton.

AFFIRMED.

      . On the same date, Payton was sentenced to twelve years imprisonment for the crime of simple burglary to be served concurrently with his sentence for forcible rape.

      . Payton does not dispute that he was convicted of robbery in Florida in 1978. According to Payton’s prison record, one of his aliases is "Frank Jones.” The 1978 Florida conviction is recorded under that alias.

      . Louisiana Revised Statutes 15:571.3(D) was later amended by Louisiana Acts 2003, No. 636, § 1 to delete the following language: "or was committed during a period of time that the inmate was under the jurisdiction of the department or placed on probation as a juvenile.”

      . Ignorance of a criminal statute is not a defense to criminal prosecution. La. R.S. 14:17. Promulgation of a law is deemed adequate notice. State ex rel. Counterman v. Whitley, 611 So.2d 661, 666 (La.App. 1st Cir. 1992).


author: DOWNING, J.

text:
    Lauren MUNSCH, Sr. v. LIBERTY MUTUAL INSURANCE COMPANY.
    No. 2005 CA 0147.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 10, 2006.

      William J. Levenson, Mark L. Friesh-hertz, New Orleans, Counsel for Plain-tifiyAppellee Lauren Munsch, Sr.
    Judy Y. Barrasso, H. Minor Pipes, III, Susan M. Rogge, New Orleans, Counsel for Defendant/Appellant Liberty Mutual Insurance Company.
    Before: CARTER, C.J., DOWNING and GAIDRY, JJ.
   DOWNING, J.

IsThe issue before us involves a determination of whether a selection of lower limits of uninsured/underinsured (UM) motorist coverage remains statutorily valid after an automobile insurance policy is transferred into a surviving spouse’s name. Lauren Munsch, Sr., had filed for partial summary judgment alleging that the selection of lower limits of UM coverage by an owner’s deceased husband was no longer valid. Adversely, Liberty Mutual Insurance Co.’s (Liberty Mutual’s) cross-motion for summary judgment asserted that the deceased husband’s selection of lower limits of UM coverage remained valid when coverage was effected in the surviving spouse’s name. The trial court entered partial summary judgment in favor of Munsch and denied Liberty Mutual’s cross-motion for partial summary judgment, effectively finding the deceased husband’s UM selection invalid. For the following reasons, we affirm.

Facts and Procedural History

On April 11, 2001, Lauren Munsch was a guest passenger in an automobile driven by Stacy Adkins, the granddaughter of Albert and Georgette Oestriecher, when he was allegedly injured by a third party who rear-ended the vehicle in which he was riding. At the time of the accident, Georgette Oestriecher was the owner of that vehicle and the named insured on the insurance policy at issue. Her husband had died on July 15, 2000.

Through its annual renewals, the insurance policy in question provided for $500,000.00 in liability coverage. On January 1, 1999, |showever, Albert Oestriecher had executed a selection of lower limits for UM coverage in the amount of $50,000.00.

After Albert Oestriecher died, Liberty Mutual sent a notice of renewal. Before the renewal date, Georgette Oestriecher notified Liberty Mutual of her husband’s death, and Liberty Mutual renewed the policy in Georgette’s name. Stacy Adkins, their daughter, was named as an additional insured at this time.

Once litigation commenced, Munsch and Liberty Mutual filed cross-motions for summary judgment. The matter came on for hearing on March 1, 2004. After reviewing the law, evidence and memoranda, and hearing the argument of counsel, the trial court ruled in favor of Munsch. Liberty Mutual appealed, raising three issues for review, summarized as follows:

1.whether the policy ended at the conclusion of the policy period in effect at the time of Albert Oestriecher’s death;
2. whether Georgette Oestriecher is the same named insured as in the previously renewed policy where Albert Oestriecher was listed as the named insured and Georgette was listed as an additional insured;
3. whether a waiver signed by a deceased person can be applied to a driver (Stacy Adkins) who was never insured on the policy at the same time as the deceased. insured may change the original uninsured motorist selection or rejection on a policy at any time during the life of the policy by submitting a new uninsured motorist selection form to the insurer on the form prescribed by the commissioner of insurance. Any changes to an existing policy, regardless of whether these changes create new coverage, except changes in the limits of liability, do not create a new policy and do not require the completion of new uninsured motorist selection forms. For the purpose of this Section, a new policy shall mean an original contract of insurance which an insured enters into through the completion of an application on the form required by the insurer.

Apparent Conflict

Before deciding the propriety of the trial court’s rulings on the cross-motions for summary judgment, we first resolve a matter of statutory interpretation. At issue here are provisions of La. R.S. 22:680(l)(a)(ii) governing the rejection, selection of lower limits, or selection of eco-nomicjonly4 UM coverage., Particularly at issue are the following two seemingly inconsistent sentences found in this section:

1. The form signed by the insured or his legal representative which initially rejects coverage, selects lower limits, or selects economic-only coverage shall remain valid for the life of the policy and shall not require the completion of a new selection form when a renewal, reinstatement, substitute, or amended policy is issued to the same named insured by the same insurer or any of its affiliates. (Emphasis added.)
2. Any changes to an existing policy, regardless of whether these changes create new coverage, except changes in the limits of liability, do not create a new policy and do not require the completion of new uninsured motorist selection forms. (Emphasis added.)

We analyze these sentences in turn as they relate to the facts before us and attempt to reconcile them.

{¿Sentence 1

Parsing the first sentence, we read pertinently that a valid UM selection of lower limits will remain valid when a renewal is issued to the same named insured.

We conclude that the “named insured” referenced in sentence 1 is the named insured as defined in the policy. In Bel v. State Farm Mut. Auto. Ins. Co., 02-0360, p. 5 (La.App. 1 Cir. 2/14/03), 845 So.2d 459, 462, in an analogous context, this court found that “named insured or his legal representative” as used in La. R.S. 22:680(l)(a)(ii) means the same thing as “any insured named in the policy” as used in La. R.S. 22:680(l)(a)(i ). In Oncale v. Aetna Cas. and Sur. Co., 417 So.2d 471, 474 (La.App. 1 Cir.1982), this court held that “[w]here a policy of insurance contains a definition of any word or phrase, this definition is controlling.” It further held that “the phrase ‘any insured named in the policy’ found in [the statute] is substantially synonymous with the phrase ‘named insured’ found in the subject insurance policy.” Id.

Further, the validity of a policy upon renewal depends on its being issued to the “same named insured.” However, it is self-evident that a “named insured” comprised of two people, one of whom is deceased, can not be the same as a “named insured” comprised of only one under La. R.S. 22:680(l)(a)(ii), which makes continued validity of the UM selection contingent on a renewal being issued to the “same named insured.”

Sentence 2

Under this sentence, no new UM selection is required upon any change in the policy other than a change in limits of the policy. This sentence also makes it clear that such changes do not create new policies. | ^Accordingly, under the facts before us, the changes in the policy implemented by the surviving spouse do not require a new UM selection.

The clear implication of this sentence’s wording is that UM coverage will remain in force at selected limits when any change to a policy is made other than a change in policy limits. Accordingly, the changes the surviving spouse implemented in her coverage should not affect the validity of the UM selection made by her deceased husband. To read this sentence otherwise would render it almost, but not completely, meaningless.

Reconciliation

Under the facts before us, these sentences from the same paragraph seem contradictory and demand statutory interpretation. In Rainey v. Entergy Gulf States, Inc., 01-2414, pp. 6-7 (La.App. 1 Cir. 6/25/04), 885 So.2d 1193, 1198-99, writs denied, 04-1878, 887 So.2d 478, 04-1884, 887 So.2d 479, 04-1883 (La.11/15/04), 887 So.2d 478, 479, this court summarized the general statutory and jurisprudential rules for statutory interpretation, as follows:

Interpretation of laws is the province of the judicial branch of State government. The starting point for the interpretation [footnote omitted] of a law is the language of the law itself. Rules for interpreting the Revised Statutes and the Civil Code have been enacted by the legislative branch and are found in La. R.S. 1:1 et seq. and Civil Code Article 9 et seq. Louisiana Revised Statute 1:3 provides, in pertinent part, that “[w]ords and phrases ... shall be construed according to the common and approved usage of the language” and the “word ‘shall’ is mandatory.” (Emphasis added.) Louisiana Revised Statute 1:4 provides that “[w]hen the wording of a Section [of the Revised Statutes] is clear and free of ambiguity, the letter of it shall not be disregarded under the pretext of pursuing its spirit.” Louisiana Civil Code Article 10 provides that “[w]hen the language of the law is susceptible of different meanings, it must be interpreted as having the meaning that best conforms to the purpose of the law.” Louisiana Civil Code Article 13 provides that “[l]aws on the same subject matter must be interpreted in reference to each other.” A court is bound to follow the language of a relevant law. See La. C.C. arts. 1-4.

The jurisprudence has developed additional rules for interpreting laws. In Ransome v. Ransome, 01-2361, p. 8 La.App. 1 Cir. 04/21/02), 822 So.2d 746, 754 appears the following:

Pursuant to the standard rules for statutory construction (1) it is presumed that every provision of law was intended to serve some useful purpose; (2) it is not presumed that the lawmaker intended for any part of a law to be meaningless; (3) the lawmaker is presumed to have enacted the law with full knowledge of all other laws pertaining to the same subject matter; (4) it is the duty of the courts to interpret a provision of law which harmonizes and reconciles it with other provisions pertaining to the same subject matter; and (5) when a law is susceptible to two or more interpretations, that which affords a reasonable and practical effect to the entire act is preferred to one that renders part of the act nugatory.

See also David v. Our Lady of the Lake Hospital, Inc., 02-2675, p. 11 (La.07/02/03), 849 So.2d 38, 46-47; Gregor v. Argenot Great Central Insurance Company, 02-1138, pp. 6-7 (La.05/20/03), 851 So.2d 959, 964. (Emphasis added.)

Further, this court specifically discussed interpretation of the UM statute in Dyess v. American Nat. Property and Cas. Co., 03-1971 (La.App. 1 Cir. 6/25/04), 886 So.2d 448, writ denied, 04-1858 (La.10/29/04), 885 So.2d 592. We observed that the mandatory UM coverage provisions of Louisiana Revised Statutes 22:680 embody strong public policy: “The object of UM coverage is to provide full recovery for automobile accident victims who suffer damages caused by a tortfeasor who is not covered by adequate liability insurance.” Id., 03-1971 at pp. 7-8, 886 So.2d at 453. Even though such coverage may be specifically rejected pursuant to the statutory guidelines, the statute’s provisions “are to be liberally construed in favor of coverage such that statutory exceptions to the UM coverage requirements are interpreted strictly.” Id., 03-1971 at p. 8, 886 So.2d at 453. “Unless the insured’s expression of his desire to reject or select lower limits of UM coverage meets the formal requirements of law, the expression does not constitute a valid rejection.” (Emphasis added.) Id.

| RApplying these precepts to the controverted sentences from La. R.S. 22:680(l)(a)(ii), we conclude that they can be harmonized if read inclusively. The first sentence mandates the continuing validity of a UM selection through renewal, reinstatement, substitution or amendment while the parties remain the same (“is issued to the same named insured by the same insurer or any of its affiliates”). Per the second sentence, any change to a valid policy does not require the completion of a new UM selection form unless an insured changes the limits of liability, an act that implicates the amount of UM coverage imputed by law unless a lower selection is made.

Such interpretation gives meaning to both parts of the law at issue and seems to best conform to the purpose of the law. See La. C.C. art. 10.

Standard of Review for Summary Judgment

Summary judgment is appropriate only if the pleadings, depositions, answers to interrogatories and admissions on file, together with any affidavits, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966B. In determining whether summary judgment is appropriate, appellate courts conduct a de novo review -of the evidence, employing the same criteria that govern .the trial court’s determination of whether summary judgment is appropriate. Osborne v. JAG Const. Services, Inc., 04-0437, p. 4 (La. App. 1 Cir. 2/16/05), 906 So.2d 601, 603, writ denied, 05-0739 (La.5/6/05), 901 So.2d 1101. Additionally, La. C.C.P. art. 967B provides that when a motion for summary judgment is made and supported, an adverse party may not rest on the mere allegations or denials of his pleading. His response, by affidavits or as otherwise provided, must set forth specific facts to show that | flthere is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him.

Further, interpretation of an' insurance contract is usually a legal question that can be properly resolved on a motion for-summary judgment. Graves v. Garden State Life Ins., 03-2208, p. 3 (La.App. 1 Cir. 9/17/04), 887 So.2d 506, 509. Summary judgment declaring a lack of coverage under an insurance policy may not be rendered unless there is no -reasonable interpretation of the policy, when applied to the undisputed material facts shown by the evidence supporting the motion, under which coverage could be afforded. Id.

Entitlement to Summary Judgment

From the evidence contained in the record in support of and opposed to the Liberty Mutual’s motion, we conclude the trial court did not err in declining to enter summary judgment on its behalf. The record fails to show that Georgette was either a “named insured” or the “same named insured.”

Regarding her being a “named insured,” the record before us contains one page from the policy and two endorsements. These do not, however, contain a specific definition of “named insured.” But the one page from the insurance policy indicates that the surviving spouse is not the “named insured.” In a section entitled, “TRANSFER OF YOUR INTEREST IN THIS POLICY,” the policy provides that “if a named insured shown in the Declarations dies, coverage will be provided for ... the surviving spouse if resident in the same household at the time of death ... as if a named insured shown in the Deelara-tions[.]” Further, the Declarations page lists the deceased husband as the named insured. And the affidavit of Liberty Mutual’s Personal Market Customer Service Manager states that the deceased husband was the “named insured” and that the surviving spouse is |inlisted as an “additional insured.” From the record, therefore, it does not appear that the surviving spouse was listed as a named insured in the Declarations until she asked Liberty Mutual to put insurance in her name. Accordingly, it appears from the record that the surviving spouse was not a named insured in the policy.

Even so, Liberty Mutual argues that the surviving spouse was a named insured. William Shelby McKenzie & H. Alston Johnson, III, 15 La. Civil Law Treatise: Insurance Law and Practice, § 42 at 126-27 (2nd ed.1996) instructs us that “[t]he definition of ‘named insured’ commonly includes the spouse if a resident of the same household.” However, no such definition can be found in the portions of the policy before us.

And even if there were such a definition, for reasons stated above, we conclude that the policy issued to Georgette Oestriecher was not issued to the “same named insured” as before. Accordingly, Liberty Mutual has failed to establish that the UM selection remained valid upon “renewal” even though there were no changes in the limits of liability. It has, therefore, failed to establish its entitlement to entry of summary judgment in its favor.

Conversely, in support of Munsch’s motion for summary judgment, the evidence in the record supports her assertion that Georgette Oestriecher was not the “same named insured” as covered in the previous insurance renewals. While Liberty Mutual argues in brief that the full policy contains a definition that would at least create a question of material fact that would preclude summary judgment, it has failed to come forward with such evidence. Pursuant to La. C.C.P. art. 967B, Liberty Mutual cannot rest on mere allegations or denials, but must come forward with affidavits or otherwise to show facts establishing genuine issues for trial.

|! therefore, we conclude from the evidence in the record that the UM selection of lower limits under consideration was invalid at the time of the accident at issue and that Munsch has established as a matter of law that he is entitled to a judgment establishing that Liberty Mutual’s policy provided UM benefits in the amount of bodily injury liability provided in the policy in accordance with La. R.S. 22:680(l)(a)(i).

DECREE

For the foregoing reasons, we affirm the judgment of the trial court granting Munsch’s motion for summary judgment and denying Liberty Mutual’s cross-motion for summary judgment. Costs of this appeal are assessed to Liberty Mutual Insurance Co.

AFFIRMED

GAIDRY and CARTER, JJ., concur.

      . The trial court stated that a new policy was created when the policy was "renewed” in the surviving spouse’s name. Because of our disposition herein, we do not specifically address whether a new policy was actually created. We note, however, the last sentence of La. R.S. 22:680(l)(a)(ii) which addresses the procedure for UM selection. This sentence states, "For the purpose of this Section, a new policy shall mean an original contract of insurance which an insured enters into through the completion of an application on the form required by the insurer.”

      . Louisiana Revised Statutes 22:680(l)(a)(ii) provides as follows:
      (ii) Such rejection, selection of lower limits, or selection of economic-only coverage shall be made only on a form prescribed by the commissioner of insurance. The prescribed form shall be provided by the insurer and signed by the named insured or his legal representative. The form signed by the named insured or his legal representative which initially rejects such coverage, selects lower limits, or selects economic-only coverage shall be conclusively presumed to become a part of the policy or contract when issued and delivered, irrespective of whether physically attached thereto. A properly completed and signed form creates a rebuttable presumption that the insured knowingly rejected coverage, selected a lower limit, or selected economic-only coverage. The form signed by the insured or his legal representative which initially rejects coverage, selects lower limits, or selects economic-only coverage shall remain valid for the life of the policy and shall not require the completion of a new selection form when a renewal, reinstatement, substitute, or amended policy is issued to the same named insured by the same insurer or any of its affiliates. An

      . We note that George Oestriecher signed the form selecting lower limits for UM coverage on January 1, 1999, and that Acts 1999, No. 732, which amended La. R.S. 22:680(1)(a)(ii) [formerly La. R.S. 22:1406(1)(a)(ii) ] to include the last four sentences above, at issue here, was published on July 26, 1999. Continuing validity of UM waivers is controlled by the law in effect at the time of each renewal. See Collins v. Employers Ins. of Wausau, 402 So.2d 158, 160 (La.App. 1 Cir.1981), where this court stated, "Only those renewal policies issued after the effective date of [the statutory amendment at issue] may have their UM coverage deleted by operation of law” [as provided by the amendment]. See also Myers v. Thiheaux, 365 So.2d 266, 268 (La.App. 3 Cir. 1978). Here, the policy was renewed as of March 10 each year.
      Further, under the law in effect prior to the 1999 amendment, the result may have been different. Prior to the amendment, the need for a new UM waiver/limitation of liability form was governed by a test of whether there has been a material change in coverage. Lewis v. Lenard, 29,529, p. 5 (La.App. 2 Cir. 1997), 694 So.2d 574, 577. In Lewis, the court found no material change requiring the execution of a new form where a husband and wife divorced and the policy was renewed in the wife’s name alone. As discussed herein, however, the language of the amendment now controls the requirement for a new UM waiver/limitation of liability form.

      . Louisiana Revised Statutes 22:1460D was redesignated as La. R.S. 22:680 by Acts 2003, No. 456, § 3.


author: CARTER, C.J. DOWNING, J.

text:
    HOLLY & SMITH ARCHITECTS, INC. v. ST. HELENA CONGREGATE FACILITY, INC. and ST. HELENA PARISH HOSPITAL.
    Nos. 2005 CA 0175, 2005 CA 0176.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 10, 2006.

      Ron S. Macaluso, Hammond, Counsel for Appellee, Holly & Smith Architects, Inc.
    Jack Mark Stolier, Matthew K. Brown, New Orleans, Counsel for Appellant, Hospital Service District No. 1 of the Parish of St. Helena.
    Before: CARTER, C.J., DOWNING and GAIDRY, JJ.
   CARTER, C.J.

[pAPPellant, a public body, appeals the judgment denying its petition for writ of mandamus and declaratory judgment. Appellant sought an order directing the St. Helena Clerk of Court to erase three recorded judgments filed in the St. Helena Parish mortgage records and a declaration that the three judgments have no effect as to third party purchasers. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

At the center of this dispute are three judgments recorded in the mortgage records of St. Helena Parish regarding suit number 15,533, Holly & Smith Architects, Inc. v. St. Helena Congregate Facility, Inc. and St. Helena Parish Hospital:

1. Judgment rendered January 9, 1998, Mortgage Book 197, Page 191.
2. Judgment rendered March 11, 2003, Mortgage Book 187, Page 2.
3. Judgment rendered May 16, 2002, Mortgage Book 188, Page 138.

The filing of the judgments created judicial mortgages in favor of Holly and Smith Architects, Inc. and against property held by St. Helena Congregate Facility, Inc. and St. Helena Parish Hospital Service District No. 1 (collectively St. Helena Hospital). It is undisputed that St. Helena Hospital is a public body and that its property is part of the public fisc.

|sOn June 10, 2004, appellee, Holly & Smith, filed a motion to examine its judgment debtor, appellant, St. Helena Hospital. In response, St. Helena Hospital sought a motion to quash or a protective order. St. Helena Hospital also filed a petition for writ of mandamus entitled Hospital Service District No. 1 of the Parish of St. Helena d/b/a St. Helena Parish Hospital v. Beverly Gordon, Clerk of Court, suit number 18694. Therein, St. Helena Hospital sought a court order for cancellation of the three judicial mortgages.

Thereafter, Holly & Smith filed its own petition for writ of mandamus in suit number 15533, seeking an order directing St. Helena Hospital to pay the three judgments rendered in favor of Holly & Smith and against St. Helena Hospital. The two district court proceedings, 15533 and 18694, ultimately were consolidated on motion of Holly & Smith.

On October 29, 2004, the trial court signed a judgment granting St. Helena Hospital’s motion to quash or for a protective order in regard to the judgment debt- or rule, denying Holly & Smith’s petition for writ of mandamus seeking payment, denying St. Helena Hospital’s petition for writ of mandamus seeking erasure, and denying St. Helena Hospital’s request for a declaratory judgment regarding the effect of the judicial mortgages on third party purchasers.

St. Helena Hospital appeals, identifying three issues for this court’s consideration:

1. Does the Louisiana Constitution permit judgment liens to be placed on the property of hospital service districts?
2. Should the clerk of court be ordered to erase inscribed judgments against St. Helena Hospital from the mortgage records so as to remove the lien created by recording such judgments?
|43. Does a third party take property from St. Helena Hospital subject to a lien created by judgments against St. Helena Hospital that are recorded in the mortgage records of the parish?

DISCUSSION

St. Helena Hospital maintains that Article 10 of the Louisiana Constitution and LSA-R.S. 13:5109 prohibit the recor-dation of judgments against public property, and for that reason, it is entitled to mandamus relief ordering the judicial mortgages erased and to a declaration that the judicial mortgages have no effect against third party purchasers. Finding St. Helena Hospital’s arguments unpersuasive, we affirm.

Neither the state, a state agency, nor a political subdivision is immune from suit and liability in contract or for injury to a person or property. LSA-Const. art. XII, § 10A. The Louisiana Constitution mandates that the Louisiana Legislature provide a procedure for suits against the state, state agencies, or political subdivisions. The legislature also “shall provide for the effect of a judgment.” LSA-Const. art. XII, § 10C

The Louisiana Constitution places only two prohibitions on the legislature’s authority to provide for the “effect of a judgment.” “[N]o public property or public funds shall be subject to seizure ... [and] no judgment against the state, a state agency, or a political subdivision shall be exigible, payable, or paid except from funds appropriated by the legislature or by the political subdivision against which the judgment is rendered.” LSA-Const. art. XII, § 10C; Baudoin v. Acadia Parish Police Jury, 96-1288 (La.App. 3 Cir. 9/17/97), 702 So.2d 715, 717, writ denied, 97-2546 (La.12/19/97), 706 So.2d 458.

| ¡¡Pursuant to Article XII, § 10C, the Louisiana Legislature enacted LSA-R.S. 13:5109B(2), which provides that judgments against public bodies are to be paid “only out of funds appropriated for that purpose” by the public body against which the suit was filed.

As noted by counsel for appellee, the enabling statutes for hospital service districts such as St. Helena Hospital, LSA-R.S. 33:7701 et seq., contain no prohibition on the placement of a judicial mortgage on the property of hospital service districts. In contrast, legislation does exist prohibiting the filing of judgments as charges or liens against other types of public property. Consider LSA-R.S. 33:4720.64A, which provides that no judgment against the New Orleans Redevelopment Authority shall “be a charge or lien upon such property.” In LSA-R.S. 33:7621A and LSA-R.S. 47:8021A, similar language is used to protect the property of New Community Development Corporations and Tax Incremental Development Corporations respectively.

The legislature’s decision to legislatively restrict the effect of judgments against certain types of public property, by inference, supports the conclusion that unless specifically prohibited, judicial mortgages may be placed on public property. And although LSA-Const. art. XII, § 10C prohibits the seizure of public property subject to a judicial mortgage, there are no additional confines on the effect of the judicial mortgage on third party purchasers of that public property. See LSA-C.C. art. 3307.

| «CONCLUSION

Article XII, § 10 and LSA-R.S. 13:5109B provide a method by which judgments rendered against the state or its political subdivisions may be paid. Foreman v. Vermilion Parish Police Jury, 336 So.2d 986, 989 (La.App. 3 Cir.), writ refused, 339 So.2d 846 (La.1976). Although the judgment against St. Helena Hospital is not exigible and payable without St. Helena Hospital first appropriating the funds, neither the constitution nor the statutory scheme prohibits the filing in the mortgage records of a judgment against a hospital service district such as St. Helena Hospital. Nor does the constitution or the statutory scheme entitle St. Helena Hospital to a declaration that the judicial mortgages on its property are without effect on third party purchasers.

Finding no error in the trial court’s judgment, we affirm. Costs of this proceeding in the amount of $573.00 are assessed to appellant, St. Helena Hospital.

AFFIRMED.

DOWNING, J., dissents and assigns reasons.

DOWNING, J.

h‘Tt is an axiom of the law that no one can do indirectly what he cannot do directly.” Central Louisiana Elec. Co. v. Louisiana Public Service Commission, 253 La. 553, 563, 218 So.2d 592, 596 (La.1969). The majority’s ruling allows a plaintiff to indirectly make judgments against the State’s political subdivisions exigible and payable without the political subdivision first appropriating the funds. Here, the St. Helena Congregate Facility, Inc., and St. Helena Parish Hospital are undisputedly political subdivisions of the State. And to accomplish the sale of their immovable property, they will be forced to either pay the judgment liens or accept a price reduced to account for the value of the liens. Either way, while a seizure and sale of public property is not technically ordered here, the political subdivision effectively is required to pay off the liens. As such, the majority authorizes violation of La. Const, art. XII, § 10C and La. R.S. 13:5109B(2). This is beyond our authority. Therefore, I respectfully dissent.

      . The filing of a judgment in the mortgage records creates a judicial mortgage. LSA-C.C. art. 3300.


text:
    J. Robert WOOLEY, in his Capacity as Acting Commissioner of Insurance, State of Louisiana v. STATE FARM FIRE AND CASUALTY INSURANCE COMPANY, Honorable Murphy J. Foster, in His Capacity as Governor of Louisiana, Anne Wise, in Her Capacity as Director of the Division of Administrative Law, and Allen Reynolds, in his Capacity as Director of the Department of State Civil Service.
    No. 2005 CA 1490.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 10, 2006.

      Barry E. Ward, Baton Rouge, Counsel for Plaintiff/Appellee J. Robert Wooley Commissioner of Insurance State of Louisiana.

      William D. Treeby, Wayne J. Lee, Stephen G. Bullock, Sarah H. Barcellona, New Orleans, Counsel for Defendanf/Ap-pellant State Farm Fire <⅞ Casualty Company.
    Before: CARTER, C.J., DOWNING, and GAIDRY, JJ.
   GAIDRY, J.

| gThis matter comes to us on remand from the decision of the Louisiana supreme court in Wooley v. State Farm Fire and Casualty Insurance Company, 04-882 (La.1/19/05), 893 So.2d 746. Finding no justiciable controversy as to the remaining issues, we vacate the judgment of the district court declaring the insurance policy form language at issue contrary to law.

FACTS AND PROCEDURAL HISTORY

The factual and procedural background of the present litigation was thoroughly described and discussed in the supreme court’s prior decision cited above. By way of summary, in February 1996, State Farm Fire and Casualty Insurance Company (State Farm) submitted a Rental Condominium Unitowners’ insurance policy form (the RCU form) to the Commissioner of Insurance (the Commissioner) for his approval pursuant to La. R.S. 22:620. The Commissioner disapproved the form on the grounds that certain of its provisions purportedly did not comply with the Insurance Code. State Farm requested reconsideration of that decision pursuant to La. R.S. 22:1351, but was unsuccessful in obtaining approval of the RCU form.

State Farm then requested an adjudicatory hearing pursuant to the Louisiana Administrative Procedure Act, La. R.S. 49:950, et seq. The hearing was conducted in 1998 by an administrative law judge (ALJ) of the Division of Administrative Law, who issued a decision in favor of State Farm and ordered the Commissioner to approve the RCU form. The Commissioner sought judicial review of the ALJ’s decision, but the district court ruled that the Commissioner had no right to judicial review, based upon La. R.S. 49:964(A)(2) and 49:992(B)(3), enacted by Acts 1999, No. 1332. This court affirmed. Brown v. State Farm Fire and Casualty Insurance Company, 00-539 (La.App. 1st Cir.6/22/01), 804 So.2d 41, writ denied, 01-2504 (La.12/7/01), 803 So.2d 37.

The Commissioner then instituted the present litigation against State Farm, the governor, and other executive branch officials, seeking injunctive relief and declaratory judgment declaring Acts 1995, No. 739 and Acts 1999, No. 1332 unconstitutional and the ALJ’s decision null. State Farm in response requested the district court to render declaratory judgment on the legal propriety of the RCU form, only in the event it declared the acts unconstitutional. The district court essentially agreed with the entirety of the Commissioner’s position including, among other points, that both acts unconstitutionally vested judicial power in executive branch employees, thereby diminishing the inherent power of the judicial branch, and unconstitutionally diminished the Commissioner’s constitutional authority, and that Acts 1995, No. 739 unconstitutionally created unauthorized new courts with non-elected judges. The defendants appealed directly to the supreme court, which reversed and vacated the judgment of the district Court in its entirety, with the sole exception of a declaratory judgment finding the contested language of the RCU form contrary to law. The supreme court has remanded that portion of the district court’s judgment for our consideration.

ISSUES PRESENTED FOR REVIEW ON REMAND

In its opinion herein, the supreme court intimated, without expressly so holding, that “the Commissioner is not without the prospect of a judicial 1¿remedy ... on the proper interpretation of our insurance laws” and “recognized the possibility that [he] might be entitled to a declaratory judgment in a case such as this where the dispute is in a regulatory context, but involves a purely legal question.” Wooley at pp. 34, 38, 893 So.2d at 770, 772. (Our emphasis.) The “narrow issue” presented for our review on remand is “whether the Commissioner is entitled to seek declaratory judgment on the issue of whether State Farm’s RCU policy form, as submitted, complies with the applicable laws,” and, if so, whether the district court’s decision on those merits is correct. Id., 04-882 at p. 38, 893 So.2d at 772.

ANALYSIS

A person “whose rights, status, or other legal relations are affected by a statute” may seek the determination of “any question of construction or validity arising under the ... statute ... and obtain a declaration of rights, status, or other legal relations thereunder.” La. C.C.P. art. 1872. Declaratory judgment may be rendered “whether or not further relief is or could be claimed.” La. C.C.P. art. 1871. The function of a declaratory judgment is simply to establish the rights of the parties or express the opinion of the court on a question of law without ordering anything to be done. ANR Pipeline Company v. Louisiana Tax Commission, 01-2594, p. 9 (La.App. 1st Cir.3/20/02), 815 So.2d 178, 185, affirmed and remanded, 02-1479 (La.7/2/03), 851 So.2d 1145. But our jurisprudence has limited the availability of declaratory judgment by holding that “courts will only act in | Rcases of a present, justiciable controversy and will not render merely advisory opinions.” Church Point Wholesale Beverage Co., Inc. v. Tarver, 614 So.2d 697, 701 (La.1993).

The threshold legal issue in our determination of the narrow issue of the Commissioner’s right to declaratory relief is whether a justiciable controversy is presented. Indeed, the supreme court has specifically directed us to consider its opinion in Prator v. Caddo Parish, 04-0794 (La.12/1/04), 888 So.2d 812, addressing the subject of justiciable controversies in a declaratory judgment action.

Because of the almost infinite variety of factual scenarios with which courts may be presented, a precise definition of a justiciable controversy is neither practicable nor desirable. See Prator, 04-0794 at p. 6, 888 So.2d at 816, citing Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273, 61 S.Ct. 510, 512, 85 L.Ed. 826 (1941). However, a justiciable controversy has been broadly defined as one involving “adverse parties with opposing claims ripe for judicial determination,” involving “specific adversarial questions asserted by interested parties based on existing facts.” Id. A justiciable controversy for purposes of declaratory judgment is one involving uncertain or disputed rights in “an immediate and genuine situation,” and must be a “substantial and actual dispute” as to the legal relations of “parties who have real, adverse interests.” Id. at pp. 7-9, 888 So.2d at 817. It is well settled that courts should not decide abstract, hypothetical, or moot controversies, or render advisory opinions with respect to such controversies. CITGO Petroleum Co. v. Louisiana Public Service Commission, 04-0914, p. 12 (La.3/2/05), 898 So.2d 291, 298.

As our supreme court has aptly observed, “[t]hese traditional notions of justi-ciability are rooted in our constitution’s tripartite distribution of | ^powers into the executive, legislative, and judicial branches of government.” Perschall v. State, 96-0322, p. 15 (La.7/1/97), 697 So.2d 240, 251. By enacting Acts 1999, No. 1332, “[t]he legislature has chosen to deny the right of judicial review to one executive branch office when another executive branch office has ruled against it.” Wooley, 04-882 at p. 33, 893 So.2d at 769. (Our emphasis.) More specifically, the supreme court in the present case further observed:

Essentially, the legislature has chosen to allow the ALJs to adjudicate, and in some cases to finally adjudicate, various matters concerning the insurance industry in this state and to reduce the Commissioner’s ability to regulate insurance by prohibiting him from overiiding the ALJs [sic ] decision or order and from seeking judicial review of an adverse decision or order.

Id., 04-882 at p. 33, 893 So.2d at 769-70.

As originally enacted by Acts 1995, No. 739, La. R.S. 49:992(B)(2) provided:

In an adjudication commenced by the division, the administrative law judge shall issue the final decision or order, whether or not on rehearing, and the agency shall have no authority to override such decision or order.

In its opinion herein, the supreme court interpreted the above language as “evidencing] a clear intent to make the Commissioner’s decision subordinate to that of the ALJ.” Id., 04-882 at p. 30, 893 So.2d at 767.

Subsequent to the supreme court’s rendition of its opinion in this matter, the legislature enacted Acts 2005, No. 204, amending La. R.S. 49:992(B)(2) by adding the following significant language: “Upon the issuance of such a final decision or order, the agency or any official thereof shall comply fully with the final order or decision of the administrative law judge.” The act was effective August 15, 2005. Our review of both its substantive language and legislative history convinces us that the act was |7both interpretive and remedial in purpose, and thus should be given retroactive effect.

Adjudications relating to the approval of insurance policy forms are not “civil matters” within the meaning of Article 5, § 16(A) of the Louisiana Constitution, and thus not within the original jurisdiction of the district courts. Wooley, 04-882 at p. 26, 893 So.2d at 765. On the other hand, nothing in the language of La. R.S. 22:620 and 22:621 suggests that the legislature intended the Commissioner to be the final, definitive arbiter for the interpretation and reconciliation of the Insurance Code and insurance policy language. That role is of course constitutionally assigned to the judiciary. ANR Pipeline Company, 01-2594 at p. 7, 815 So.2d at 183-84.

The controversy at issue is essentially identical to that presented to the ALJ, and relates solely to the administrative disapproval of the RCU form as contrary to law. It presents no issues involving the practical application of the RCU form to a concrete factual situation. By its enactment of La. R.S. 49:964(A)(2) and 49:992(B)(2) and (B)(3), the legislature has unequivocally restricted the Commissioner’s authority to seek judicial review of the ALJ’s adverse adjudication of the issue presented to him. A finding that this dispute in its present posture involves a justi-ciable controversy would frustrate the legislative intent of administrative finality of ALJ adjudications by allowing the Commissioner to effectively circumvent the adverse ALJ adjudication, and would render the adjudication process of the Division of Administrative Law meaningless.

The “existing facts” of the present controversy, for our purposes, are simply these: The ALJ made an adjudication that the RCU form met La. R.S. 22:621’s requirement of compliance with law, an adjudication which is not subject to judicial review at the request of the Commissioner and with |swhich the Commissioner is now bound by law to comply. A litigant not asserting a substantial existing legal right is without standing to seek a declaratory judgment, and such lack of standing renders any judicial opinion sought an impermissible advisory opinion. See Church Point Wholesale Beverage, 614 So.2d at 701-2. Such is the present position of the Commissioner.

The Commissioner is not without recourse to declaratory judgment in appropriate circumstances, however. For example, in the event of litigation arising from a coverage dispute involving the RCU form, a court might hold the allegedly offending language invalid and unenforceable as contrary to law. Upon the judgment becoming final and definitive, the Commissioner could seek declaratory judgment declaring the RCU form contrary to law and confirming his express right to withdraw the previous approval pursuant to the provisions of La. R.S. 22:620(B) and 22:621(1). Under those facts, a justiciable controversy would indisputably exist. There may be other factual circumstances under which the Commissioner might properly seek a judicial determination of the correctness of an adverse ALJ adjudication on the legality of a policy form, but we decline to speculate as to their nature.

Given the limited context of the dispute at issue and the status and posture of the adverse parties within that context, and viewing the dispute in light of the unambiguous legislative intent, we must conclude that no | ¡¿justiciable controversy exists “based on existing facts.” Because of this conclusion, we are precluded from reaching the merits relating to the RCU form. If and when that issue arises in a justiciable controversy, however, there is no question but that the courts of this state will be the final authority in its interpretation, to which the ALJs will of course owe deference “once they [the courts] rule on the issue.” See Wooley, 04-882 at p. 34, 893 So.2d at 770.

In conclusion, the determinative issue here, as we perceive it, is the absence of a justiciable controversy upon which this court may determine the merits of the legal issue. In the narrow context of the bureaucratic contest from which it arose, the issue of the RCU form’s legality is moot. There being no justiciable controversy presented, the district court consequently possessed no power or authority to render its declaratory judgment, and that judgment must be vacated.

DECREE

Accordingly, we vacate the judgment of the district court declaring “that the phrase ‘this entire policy shall be void’ and the phrase ‘you or any other insured’ in lieu of ‘the insured’ as applied to all perils and coverage sections [in the RCU form] is contrary to law, more specifically, LSA-R.S. 22:636.2, LSA-R.S. 22:619E and LSA-R.S. 22:691.2 in that such language is less beneficial to the insured.” All costs of this proceeding, in the amount of $870.42, are assessed to the plaintiff-appellee, J. Robert Wooley, Commissioner of Insurance, State of Louisiana.

JUDGMENT OF THE DISTRICT COURT VACATED.

CARTER, J., concurs.

      . Acts 1995, No. 739, effective October 1, 1996 and codified as La. R.S. 49:991-999, created the Division of Administrative Law within the Department of State Civil Service, and provides that all administrative law judges handling adjudications of administrative matters be assigned to and employed by the division. Acts 1999, No. 1332 created La. R.S. 49:964(A)(2) as part of the Louisiana Administrative Procedure Act, and La. R.S. 49:992(B)(3) as part of the statutes relating to the Division of Administrative Law. Both statutes provide that no agency, agency official, or representative of either is entitled to judicial review of a final administrative adjudication.

      . Parenthetically, we agree with State Farm's observation that the supreme court may have inadvertently erred in assuming that the Commissioner in fact sought declaratory judgment on the merits of the RCU form’s compliance with law. Our review of the record reveals that the Commissioner never sought such relief in the district court, and that State Farm requested such relief only in the alternative, in the event the legislative acts at issue were declared unconstitutional. But rather than resolving the present matter on such grounds, we are constrained to resolve it within the parameters set by the supreme court in its judgment remanding the matter.

      . In concluding that the Commissioner’s request for injunctive relief against the ALJ's decision was improper, the supreme court noted that “the Commissioner has not adequately shown on the record how irreparable injury, loss, or damage may occur” to justify injunctive relief. Wooley, 04-882 at pp. 37-8, 893 So.2d at 772. While not determinative on the point, that observation lends support to the conclusion that the residual controversy before us does not concern an "immediate and genuine situation” ripe for judicial determination "based on existing facts.”

      . Louisiana Revised Statutes 22:620(B) provides that the Commissioner "may withdraw any such approval [of a policy form] at any time for cause.” Louisiana Revised Statutes 22:621(1) provides that the Commissioner "shall ... withdraw any previous approval [of a policy form] only ... [i]f it is in any respect in violation of or does not comply with law.”