text:
    STATE of Louisiana in the Interest of A.H.
    No. 2010-CA-1673.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 20, 2011.

      Tenee Felix, Juvenile Regional Services, New Orleans, LA, for Appellant, A.H.
    Leon A. Cannizzaro, Jr., District Attorney, Alyson Graugnard, Assistant District Attorney, New Orleans, LA, for Appellee.
    (Court composed of Judge MICHAEL E. KIRBY, Judge MAX N. TOBIAS, JR., Judge ROLAND L. BELSOME).
   ROLAND L. BELSOME, Judge.

_JjThe juvenile, A.H., appeals the judgment of the Juvenile Court for the Parish of Orleans adjudicating him delinquent after finding he committed the offense of possession of marijuana. Specifically, A.H. argues that the juvenile court erred in adjudicating him delinquent because the State failed to prove he committed the offense of possession of marijuana beyond a reasonable doubt and the juvenile court erred in denying his motion to suppress physical evidence. For the following reasons, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

The State filed a delinquency petition charging A.H. with violating La. R.S. 40:966, possession of marijuana. On September 20, 2010, the juvenile court held an adjudication hearing.

At the adjudication hearing, Officer Car-wile testified that he was working in the First District when he and his partner observed a PT Cruiser traveling down Frenchman Street disregard a stop sign while also traveling at a high rate of speed. To effect a traffic stop, the officers activated the police unit’s emergency lights and siren. After the PT Cruiser stopped, Officer Carwile testified that he approached the driver side of the vehicle and his partner, Officer Bissel, approached the | ¡¡passenger side of the vehicle. Officer Carwile stated that as he got closer, he noticed the odor of fresh marijuana through the open windows of the vehicle. After noticing the odor of marijuana, the officers ordered A.H., the driver, and his passenger, A.P., out of the vehicle and brought them around to the back of the PT Cruiser. Officer Carwile could not remember if the juveniles were handcuffed or not when first brought to the rear of the PT Cruiser. While Officer Carwile stayed with the juveniles, Officer Bissel searched the PT Cruiser. After Officer Bissel found marijuana, Officer Carwile stated that A.H. and A.P. were arrested for possession of marijuana. Officer Carwile testified that A.H. followed the order to get out of the vehicle immediately and spoke politely and softly. Officer Carwile testified that A.H. did not appear to have been drinking or to be on any drugs.

Officer Bissel’s testimony varied little from Officer Carwile’s. Officer Bissel testified that as he approached the PT Cruiser after the stop, the odor of fresh marijuana was strong. Officer Bissel testified that the juveniles were brought to the back of the PT Cruiser and were handcuffed. After they were handcuffed, he began his search of the vehicle. During the search, Officer Bissel found a can of Pringles in the center console, between the driver’s seat and the passenger’s seat. Upon opening the can of Pringles, Officer Bissel discovered a plastic bag of marijuana. Based upon his finding of marijuana, Officer Bissel searched the immediate area where the juveniles were in the vehicle, including the glove compartment and under the seats, but found no other contraband.

Officer Glibin from the crime lab testified that he tested the evidence found in the Pringles can from the PT Cruiser. Officer Glibin positively identified the evidence from the Pringles can as marijuana.

IpA-P- testified that A.H. picked him up from his home. A.P. stated that he got into the PT Cruiser with the Pringles can and placed it in the cup holder of the center console between the seats. A.P. noted that A.H. never touched or handled the Pringles can. A.P. testified that after the vehicle was stopped by the police, he and A.H. were brought to the rear of the vehicle and handcuffed. After they were handcuffed, the vehicle was searched. A.P. testified that the officer found the marijuana in the Pringles can and they were both arrested and charged with possession of marijuana. A.P. testified that he pled no contest to the possession of marijuana charge and received community service.

At the conclusion of the hearing, the juvenile court found A.H. committed the offense of possession of marijuana and adjudicated A.H. delinquent. The juvenile court committed A.H. to the Department of Safety and Corrections for six months. The juvenile court suspended the commitment and placed A.H. on active probation for one year. A.H. timely filed a motion for appeal.

STANDARD OF REVIEW

In order to adjudicate a child delinquent, the State must prove beyond a reasonable doubt that the child committed the delinquent act alleged in the petition. La. Ch.C. art. 883. The standard for the State’s burden of proof in a juvenile delinquency proceeding is “no less strenuous than the standard of proof required in a criminal proceeding against an adult.” State in the Interest of A.G., 630 So.2d 909, 910 (La.App. 4 Cir. 12/30/93); State in the Interest of G.M., 617 So.2d 219, 221 (La. App. 5 Cir. 4/14/93). As a court of review, we grant great deference to the juvenile court’s factual findings, credibility determinations, and assessment of witness testimony. State ex rel. W.B., 2008-1458, p. 1 (La.App. 4 Cir. 4/22/09), 11 So.3d 60, 61, writ denied, 2009-1129 (La.1/22/10), 25 So.3d 139.

|4In evaluating the sufficiency of evidence to support a conviction, an appellate court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The Jackson standard of review is applicable in juvenile delinquency cases. State in the Interest of T.E., 2000-1810, p. 4 (La.App. 4 Cir. 4/11/01), 787 So.2d 414, 417.

In addition, La. Const, art. V, § 10(B) mandates that an appellate court review both law and facts when reviewing juvenile adjudications. “While delinquency proceedings may in many ways implicate criminal proceedings, sometimes even mimicking them, they are nonetheless civil in nature.” State in the Interest of D.R., 2010-0405, p. 5 (La.App. 4 Cir. 10/13/10), 50 So.3d 927, 930. Therefore, as in the review of civil cases, a factual finding made by a trial court in a juvenile adjudication may not be disturbed by an appellate court unless the record evidence as a whole does not furnish a basis for it, or it is clearly wrong. See State in the Interest of Batiste, 367 So.2d 784 (La.1979); State ex rel. E.D.C., 39,892 (La.App. 2 Cir. 5/11/05), 903 So.2d 571; State ex rel. T.W., 2009-0532 (La.App. 3 Cir. 10/7/09), 21 So.3d 465; and State in the Interest of S.S., 557 So.2d 407 (La.App. 4 Cir.1990). In sum, we apply the “clearly wrong-manifest error” standard of review to determine whether there is sufficient evidence to satisfy the standard of proof beyond a reasonable doubt.

DISCUSSION

In his first assignment of error, A.H. argues that the trial court erred in adjudicating him delinquent because the State failed to prove he committed the offense of possession of marijuana beyond a reasonable doubt.

| sTo prove that A.H. violated La. R.S. 40:966, the State bore the burden of proving that A.H. was in possession of the marijuana and that he knowingly possessed the marijuana. La. R.S. 40:966; State v. Proctor, 2004-1114, p. 6 (La.App. 5 Cir. 3/29/05), 901 So.2d 477, 482. Possession may be proven by actual or constructive possession. State in the Interest of D.R., 2010-0405, p. 16, 50 So.3d at 936. Additionally:

When the prosecution is unable to prove actual possession of contraband drugs, proof of constructive possession is sufficient to support the conviction. State v. Perron, 01-0214, p. 6 (La.App. 4 Cir. 1/16/02), 806 So.2d 924, 928. To prove constructive possession, the prosecution must establish that the accused had “dominion and control over the contraband.” State v. Harris, 647 So.2d 337, 338-339 (La.1994). Factors to be considered in determining whether a defendant exercised dominion and control over drugs are: the defendant’s knowledge that illegal drugs were present in the area, the defendant’s relation with the person in actual possession, the defendant’s access to the area where the drugs were found, evidence of recent drug use, the defendant’s proximity to the drugs, and evidence that the area was being frequented by drug users. State v. Walker, 99-1957, p. 3 (La.App. 4 Cir. 5/17/00), 764 So.2d 1130, 1133. However, mere presence in an area where drugs are located does not constitute constructive possession. State v. Toups, 01-1875, p. 4 (La.10/15/02), 833 So.2d 910, 913. Each ease turns on its particular facts. Harris, 647 So.2d at 339.

State in the Interest of D.R., 2010-0405, pp. 16-17, 50 So.3d at 936-937.

A.H. argues that the State did not prove that he had knowledge of the marijuana. In support of his argument, A.H. cites State v. Kestle, 2007-1573 (La.12/02/08), 996 So.2d 275. Therein, the court stated that when circumstantial evidence is relied upon for a conviction, “such evidence must exclude every reasonable hypothesis of innocence.” Id., at p. 5, 996 So.2d at 278. While this is a correct recitation of the law, appellate courts are to give great deference to the juvenile court’s factual findings, credibility determinations, and assessment of witness testimony.

In State v. Turner, 2005-60, p. 3 (La. App. 5 Cir.2005), 904 So.2d 825, 827, the defendant was charged with possession of marijuana after a vehicle in which he was a passenger was searched following a traffic stop. At trial, the driver testified that the marijuana belonged to her. The jury apparently rejected the testimony of the driver. The court affirmed his conviction, finding that the defendant exercised dominion and control over the marijuana located under the driver’s seat to constitute constructive possession. The court found the State proved the defendant was knowingly in possession of marijuana. Id., at pp. 6-7, 904 So.2d at 829.

The juvenile court possessed the right to give more weight to the testimony of the officers over the testimony of A.P. Based upon the testimony of the officers regarding the odor of marijuana, the juvenile court determined that A.H. had knowledge of the marijuana. Viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt based upon a finding of constructive possession. As the driver of the PT Cruiser, A.H. had access to the center console where the drugs were found and A.H. was in close proximity to the Pringles can. The State sufficiently proved beyond a reasonable doubt that A.H. was knowingly in possession of marijuana. Thus, we cannot say that the juvenile court clearly erred in adjudicating A.H. delinquent. We find no merit to this assignment of error.

In his second assignment of error, A.H. argues the juvenile court erred in denying his motion to suppress. The Fourth Amendment to the United States Constitution and Article I, Section 5 of the Louisiana Constitution protect persons against unreasonable searches and seizures. A defendant adversely affected may move to suppress any evidence from use at a trial on the merits on the ground that it was unconstitutionally obtained. La.C.Cr.P. art. 703. A trial court’s ruling on a 17motion to suppress the evidence is entitled to great weight because the trial court has the opportunity to observe the witnesses and weigh the credibility of their testimony. State v. Robinson, 2009-1269, p. 5 (La.App. 4 Cir. 5/12/10), 38 So.3d 1138, 1141.

A.H. argues the search was unreasonable and the evidence unconstitutionally obtained, citing Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009) in support of his argument. In Gant, the defendant parked his vehicle in a driveway and exited the vehicle. Police were on the scene, investigating an allegation of narcotics sales from the house. An officer called to Gant to move towards the officer, and Gant complied. The officer moved towards Gant and they met in the middle, approximately ten to twelve feet from the defendant’s vehicle. The officer arrested Gant and placed him in handcuffs. After Gant was placed in the back of a patrol car, the police conducted a search of his vehicle and located a gun and a bag of cocaine in the pocket of a jacket on the backseat. Id., 556 U.S. at-, 129 S.Ct. at 1715. The lower courts determined that the search was unreasonable. The Supreme Court affirmed, finding that “[p]o-lice may search a vehicle incident to a recent occupant’s arrest only if the arres-tee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of the arrest.” Id., 556 U.S. at -, 129 S.Ct. at 1723.

A.H. maintains that, as he and A.P. were placed in handcuffs, they were no longer in reaching distance of the vehicle. Further, A.H. argues that, as he was arrested for a traffic violation, there was no reason for the officers to believe that the vehicle would contain any evidence of a traffic violation, the offense of the arrest. The State counters that after lawfully stopping the vehicle, the officers | ^obtained probable cause to search the vehicle based on the odor of fresh marijuana that they smelled as they approached the vehicle. The State argues that a narcotics investigation commenced once the officers smelled the marijuana. Hence, the search was reasonable.

The Louisiana Supreme Court decided an analogous case after Gant that is persuasive. In State v. Jackson, 2009-1983, p. 3 (La.7/6/10), 42 So.3d 368, 370 the defendant filed a motion to suppress, citing Gant. The defendant argued that because the occupants of the vehicle were removed some distance away from the vehicle, “the officer’s warrantless entry of the vehicle exceeded the scope of a search incidental to a lawful arrest of the driver for a traffic violation and was otherwise unsupported [by] any reasonable belief the vehicle contained evidence of a crime.” Id. The Court reinstated the trial court’s ruling denying the motion to suppress. The Court found the officers lawfully stopped the vehicle after observing several traffic violations and the officer obtained “probable cause to search any closed containers he found inside ... when the officer smelled the distinct odor of marijuana emanating from the interior of the car.” Id., at p. 10, 42 So.3d at 374.

Likewise, we find Officers Carwile and Bissel lawfully stopped the PT Cruiser after observing the vehicle speeding and disregarding a stop sign. The officers obtained probable cause to search the Prin-gles can once they smelled the distinct odor of marijuana emanating from the interior of the car. Once the officers smelled the distinct odor of marijuana, a narcotics investigation began. Thus, the juvenile court correctly denied the motion to suppress. We find this assignment of error to be without merit.

| ¡jLastly, we note that decisions from other circuits are not binding on this Court. However, we have reviewed juvenile delinquency decisions from other circuits and agree that conducting an error patent review in juvenile delinquency proceedings is warranted. While the Louisiana Children’s Code is silent on whether a juvenile delinquency proceeding is entitled to an error patent review, other circuits have found that such a review is mandated by La. Ch.C. art. 104 and La.C.Cr.P. art. 920. State in the Interest of D.J., 2008-345, p. 13 (La.App. 3 Cir. 8/28/08), 995 So.2d 1, 10. See also State ex rel. J.C.O., 38,661, p. 9 (La.App. 2 Cir. 6/2/04), 877 So.2d 1020, 1025; State in the Interest of D.S., 95-1019, pp. 6-7 (La.App. 5 Cir. 4/16/96), 673 So.2d 1123, 1126; and State in the Interest of Handy, 559 So.2d 795 (La.App. 1 Cir.1990). We agree.

Our review of the record reveals one error patent which must be addressed. La. Ch.C. art. 844 provides that the petition utilized to commence a juvenile delinquency proceeding must be verified. The petition utilized to commence the proceeding against A.H. is unverified. However, courts have held that the prosecution of the juvenile ratifies the unverified petition. State in the Interest of D.J., 2008-345, p. 15, 995 So.2d at 11. See also State v. Allen, 2005-1622 (La.App. 1 Cir. 3/29/06), 934 So.2d 146, 158. Additionally, the Supreme Court has noted that the proper remedy for a lack of a signature on a petition is a motion to quash. If the motion is not filed, the error is waived. State v. White, 404 So.2d 1202, 1205 (La.1981).

Thus, while our review determined that the State failed to obtain a verification of the petition, we find that the prosecution of A.H. ratified the unverified petition. Further, A.H. failed to file a motion to quash the petition. Therefore, we deem the error to be harmless.

| ^Accordingly, we affirm the adjudication of delinquency for the offense of possession of marijuana.

AFFIRMED.


source: Caselaw Access Project

author: MICHAEL E. KIRBY, Judge.

license: Public Domain

text:
    STATE of Louisiana in the Interest of D.D.
    No. 2010-CA-1692.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 20, 2011.

      Katherine M. Franks, Louisiana Appellate Project, Abita Springs, LA, for Appellant, D.D.
    Leon A. Cannizzaro, Jr., District Attorney, Scott G. Vincent, Assistant District Attorney, New Orleans, LA, for Appellee.
    (Court composed of Judge CHARLES R. JONES, Judge JAMES F. McKAY, III, Judge MICHAEL E. KIRBY).
   MICHAEL E. KIRBY, Judge.

| ,On November 4, 2010, the Orleans Parish Juvenile Court adjudicated D.D. delinquent as a result of having committed the crime of illegal carrying of a firearm in a firearm-free zone, a violation of La. R.S. 14:95.2. D.D. was given a suspended sentence of six months, and placed on active probation with numerous conditions for six months. D.D. now appeals the adjudication and disposition.

The facts of this case are not in dispute. On the evening of August 6, 2010, D.D. was sitting in the bleachers at a NORD playground in Digby Park in New Orleans watching a practice for a children’s football team. The team, comprised of children from four to six years of age, was being coached by Lieutenant Walter Givens of the Orleans Parish Sheriffs Office. During the practice, an alert parent noticed that D.D. was in possession of a weapon, and this information was brought to Lieutenant Givens’ attention. Lieutenant Givens immediately dismissed the children from practice, and went to his car to retrieve. his own weapon. He then approached D.D., identified himself as a police officer and asked D.D. to place his hands on his head. As D.D. complied with this instruction, Lieutenant Givens saw |2the weapon in D.D.’s waistband, and noticed that the weapon was cocked. Another officer in attendance at the practice removed the weapon from D.D.’s waistband and the weapon accidentally discharged in the process. No one was injured. NOPD officers were called to the scene by Lieutenant Givens, and D.D. was placed under arrest.

The State of Louisiana filed a petition requesting that D.D. be adjudicated delinquent for violating La. R.S. 14:95.2, which provides as follows, in pertinent part:

Carrying a firearm, or dangerous weapon as defined in R.S. 14:2, by a student or nonstudent on school property, at a school sponsored function, or in a firearm-free zone is unlawful and shall be defined as possession of any firearm or dangerous weapon, on one’s person, at any time while on a school campus, on school transportation, or at any school sponsored function in a specific designated area including but not limited to athletic competitions, dances, parties, or any extracurricular activities, or within one thousand feet of any school campus.

D.D. was not charged with any offense other than the violation of La. R.S. 14:95.2. Following trial, the trial court adjudicated D.D. as delinquent for possessing a firearm in a firearm-free zone. D.D. now appeals, arguing in his sole assignment of error that the trial court erred in adjudicating him delinquent for a violation of La. R.S. 14:95.2 because the State presented insufficient evidence to establish that D.D. committed the offense charged beyond a reasonable doubt. This assignment of error has merit.

The standard of review in a juvenile delinquency case was recently set forth by this Court in State in the Interest of K.M., 2010-0649, pp. 4-5 (La.App. 4 Cir. 9/29/10), 49 So.3d 460, 463-464, as follows:

|3In evaluating the sufficiency of evidence to support a conviction, an appellate court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The Jackson standard has been held to be the clear standard of review for Louisiana appellate courts by the Louisiana Supreme Court. State v. Brown, 2003-0897 (La.4/12/05), 907 So.2d 1. It specifically requires that the appellate court must determine that the evidence was sufficient to convince a rational trier of fact “that all of the elements of the crime had been proved beyond a reasonable doubt.” State v. Neal, 2000-0674, p. 9 (La.6/29/01), 796 So.2d 649, 657, citing State v. Captville, 448 So.2d 676, 678 (La.1984). This standard of review is applicable to juvenile delinquency cases. State in the Interest of T.E., 2000-1810 (La.App. 4 Cir. 4/11/01), 787 So.2d 414.

Although the State presented sufficient evidence to establish that D.D. was in possession of a loaded firearm at the NORD playground in Digby Park on the evening of August 6, 2010, there was no evidence presented to establish that he was on a school campus, on school transportation, at a school sponsored function, or within one thousand feet of any school campus at the time of the incident for which he was charged.

The State argues that the presence of a sign disallowing weapons at one of the entrances to the playground and the testimony of Lieutenant Givens constituted sufficient evidence to support the Juvenile Court’s finding that this area was a firearm-free zone. La. R.S. 14:95.6 defines a firearm-free zone as “an area inclusive of any school campus and within one thousand feet of any such school campus and within a school bus.” As stated above, no evidence was presented to suggest that the football practice was sponsored by a school or that the playground where this incident occurred had any connection to a school or was within one thousand feet of a school. Whether or not D.D.’s possession of a firearm at the 14playground violated the playground’s rules or even municipal ordinances is not at issue in this ease. The only issue before us is whether or not D.D.’s actions violated La. R.S. 14:95.2, the only offense with which he was charged. We conclude they did not. Therefore, the Juvenile Court judge erred in adjudicating D.D. delinquent for violating La. R.S. 14:95.2.

For the reasons stated above, we reverse the trial court’s adjudication of D.D. as delinquent for a violation of La. R.S. 14:95.2, possession of a firearm in a firearm-free zone.

REVERSED

      . Pursuant to Rules 5-1 and 5-2 of the Uniform Rules — Courts of Appeal, the initials of the juvenile involved in this matter will be used instead of his name.

      . New Orleans Recreation Department.

      . We do not know if the Louisiana Legislature intentionally omitted playgrounds in its definition of firearm-free zones or if this omission was an oversight. In any event, it is entirely within the province of the Legislature, and not the courts, to make changes to existing statutes. La. R.S. 14:95.2, in its current form, was not violated by D.D.’s actions at the NORD playground in Digby Park on the evening of August 6, 2010.


author: CLARENCE E. McMANUS, Judge.

text:
    Renaldo N. McKINNIS v. Katie E. REINE and Her Unknown Insurance Company, ABC Insurance Company, Barry S. Reine, and His Insurance Company, Louisiana Farm Bureau Casualty Insurance Company, and USAgencies Casualty Insurance Company, Inc. as the Uninsured/Underinsured Carrier for Gayle McKinnis.
    No. 10-CA-753.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 26, 2011.

      Fred R. DeFrancesch, Tomy J. Acosta, Attorneys at Law, LaPlace, Louisiana, James A. Harrym, Attorney at Law, Springfield, LA, for Plaintiff/Appellant.
    James S. Thompson, Matthew L. Mann, Porteous, Hainkel & Johnson, Attorneys at Law, New Orleans, LA, for Defendant/Ap-pellee.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and CLARENCE E. McMANUS.
   CLARENCE E. McMANUS, Judge.

| STATEMENT OF THE CASE

On May 13, 2009, Katie Reine and Re-naldo McKinnis were involved in an automobile accident. Reine was operating a vehicle owned by Barry Reine and insured by Louisiana Farm Bureau Mutual Insurance Company (“Farm Bureau”) when she rear-ended the vehicle being driven by McKinnis. Following the accident, Oscar Carazo, the claims adjuster with Farm Bureau for this claim, contacted McKinnis by phone to negotiate a settlement of his claim. They agreed to a settlement of $1,750.00. On May 19, 2009, McKinnis went into the Farm Bureau office to pick up the settlement check. He met with Carazo and signed a Final Release and Settlement, which released Farm Bureau from any further liability for the accident.

Also on May 19, 2009, McKinnis retained an attorney to represent him for any claims ai’ising from this accident. McKin-nis did not inform Carazo that he had | .^retained counsel prior to accepting the settlement check and signing the release. Thereafter, McKinnis, through his attorney, filed suit against Reine and Farm Bureau seeking damages for the May 13, 2009 accident.

In response to this suit, Farm Bureau filed an exception of res judicata arguing the release agreement and settlement check paid to McKinnis barred these claims. McKinnis opposed the exception and argued there had been no discussion of his personal injury claim with Farm Bureau, only his property damage claim. He further argued that he can sign his name, but has little ability to read and write. Therefore, he contends that any settlement was without consent due to his limited mental capacity and the settlement should be rescinded due to fraud.

A hearing on the exception of res judica-ta was held on December 21, 2009. Cara-zo testified at the hearing that he talked with McKinnis on the phone days after the accident to negotiate a settlement and they agreed to a settlement of $1,750.00. Cara-zo also testified that McKinnis went to his office in order to finalize the settlement and sign the release. Carazo testified that McKinnis did not inform him, either by phone or in person, that he had retained an attorney. Carazo stated that he described to McKinnis what was contained in the release and McKinnis appeared to know what was going on and did not express an inability to read or write. Carazo had McKinnis print his name and sign the release document on May 19, 2009. Also on that date, Carazo requested the check in the amount of $1,750.00 to be sent to McKinnis at his home address. The check was admitted into evidence at the hearing and McKinnis’ name was signed on the back of the check.

McKinnis also testified at the hearing. He testified that he could read some things and write, had successfully completed job applications in the past, and he then read aloud from a doctor’s report to demonstrate his ability to read. He | testified that he did not have an attorney when he first spoke with Carazo and during their second phone call on May 19, 2009 they only discussed the property damage to the vehicle. McKinnis also testified that he told Carazo on May 19, 2009 that he had an attorney. He further testified that during the third phone call a couple of dates later, Carazo offered $1,500.00 in settlement, but he refused because that wouldn’t cover all the damages to the vehicle and he then referred Carazo to his attorney for further contact. McKinnis denied ever going to the Farm Bureau office, denied that he received the check or endorsed the back of the settlement check, and denied that he signed the release. He acknowledged that his name was on the back of the check and on the release, however, he denied that he personally signed his name.

On April 6, 2010, the defendants filed an ex parte motion to introduce evidence seeking to introduce the affidavit of Elia Hadedad, the owner of Cambridge Food Market where McKinnis cased checks. Farm Bureau sought admittance of this affidavit in response to McKinnis’ testimony that he did not execute the release or sign and cash the check. Hadedad stated he remembered McKinnis cashing a check written by Farm Bureau in the amount of $1,750.00. The check was stamped for deposit with Cambridge Food Market’s name and account information.

On April 9, 2010, the trial court issued a judgment granting the exception of res judicata. The trial court found Farm Bureau had met its burden of proving that McKinnis had entered into a settlement agreement that released Farm Bureau from additional liability arising from the May 13, 2009 accident. The trial court found McKinnis’ testimony was not credible, and found he received the check, signed it and cashed it at Cambridge Food Market. The trial court found Carazo’s testimony to be credible and believed that he met with McKinnis and executed the settlement |5agreement. The trial court believed Carazo did not know McKinnis had retained counsel and Farm Bureau did not act fraudulently in any way. Therefore, the trial court granted the exception of res judicata and dismissed all claims against defendants.

McKinnis now appeals this judgment arguing four assignments of error. McKinnis argues the trial court erred in considering information and/or evidence not presented at the trial of the matter, in accepting and relying on hearsay evidence, in accepting into evidence documents that had not been authenticated, and in finding that the date on which the employee/insurance adjuster received a fax was the time when the employer received the fax.

For the reasons Which follow, we affirm the trial court’s judgment granting the exception of res judicata.

DISCUSSION

On appeal, McKinnis argues the trial court committed several evidentiary errors when deciding the exception, and therefore, the trial court erred in granting the exception. First, McKinnis argues the affidavit of Hadedad should not have been considered because it was not submitted during the hearing. McKinnis argues this affidavit was hearsay evidence and inadmissible. However, we find not merit to this assignment of error.

Following the hearing, the trial court took the matter under advisement. Before a judgment was rendered by the trial court, Farm Bureau filed a motion to . introduce the affidavit of Hadedad. A, copy of this motion and affidavit were provided to McKinnis’ counsel. McKinnis never filed an opposition to this motion nor objected to the admittance of the affidavit. Thereafter, the trial court admitted the affidavit into the record and executed its judgment.

| fiThe trial court is given vast discretion in its evidentiary rulings, and its decision to admit or exclude evidence will not be reversed on appeal in the absence of an abuse of discretion. Finch v. ATC/Vancom Management Services Ltd. Partnership, 09-483 (La.App. 5 Cir. 1/26/10), 33 So.3d 215. We find no abuse of discretion in. the trial court’s ruling on this evidentiary matter. Therefore, we find the affidavit was properly before the trial court for review in deciding the exception.

Next, McKinnis argues the check and the release should not have been considered by the trial court because they were not authenticated documents. McKinnis argues that these documents must be authenticated by someone with personal knowledge and Carazo did not actually deliver the check to McKinnis or know for certain that the release was the actual release signed by McKinnis. Again, we find this assignment of error is without merit.

The exhibits introduced at the hearing were documents submitted by Farm Bureau. Carazo testified regarding his personal knowledge that McKinnis signed the release. Further, Carazo sufficiently identified and authenticated the check issued by Farm Bureau to McKinnis. Therefore, we find no abuse of the trial court’s discretion in admitting these documents into evidence.

McKinnis also argues the trial court should have found that Farm Bureau knew that McKinnis was represented by counsel on May 19, 2009, before the settlement was perfected, because Farm Bureau received a fax from his attorney dated May 19, 2009. Thus, McKinnis asserts that Farm Bureau did not prove there was an agreed upon compromise, or alternatively, that Farm Bureau acted fraudulently because it knew McKinnis was represented by counsel. McKinnis contends the trial court should have denied the exception of res judicata.

|7La. R.S. 13:4231 provides:

Except as otherwise provided by law, a valid and final judgment is conclusive between the same parties, except on appeal or other direct review, to the following extent:
(1) If the judgment is in favor of the plaintiff, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and merged in the judgment.
(2) If the judgment is in favor of the defendant, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and the judgment bars a subsequent action on those causes of action.
(3) A judgment in favor of either the plaintiff or the defendant is conclusive, in any subsequent action between them, with respect to any issue actually litigated and determined if its determination was essential to that judgment.

In this case, Farm Bureau claims there is a valid settlement agreement between the parties. A valid compromise can form the basis of a plea of res judicata. Ortego v. State, Dep’t of Transp. & Dev., 96-1322 (La.2/25/97), 689 So.2d 1358. On an exception of res judicata, the burden of proof is on the party who urges the exception to prove its essential elements by a preponderance of the evidence. Ortiz v. Ortiz, 01-1252 (La.App. 5 Cir. 5/15/02), 821 So.2d 35. The standard of review of a ruling sustaining an exception of res judi-cata is manifest error when the exception is raised prior to the case being submitted and evidence is received from both parties. State ex ret. Murphy v. Haren, 42,098 (La.App.2d Cir.5/16/07), 957 So.2d 869, writ denied, 2007-1285 (La.9/21/07), 964 So.2d 345.

We find the trial court correctly found Farm Bureau met its burden of proving that McKinnis had entered into a settlement agreement which released Farm Bureau of any further liability. Carazo testified that he and McKinnis entered into settlement negotiations over the phone and ultimately reached an | ^agreement of $1,750.00. A check was issued by Farm Bureau to McKinnis and this check was endorsed by McKinnis and cashed at Cambridge Food Market. Further, Carazo testified that McKinnis personally appeared at the Farm Bureau office and executed the release by signing the document. We note that McKinnis testified that he did not go to the Farm Bureau office and did not sign the check or the release. The trial court reviewed the testimonies of Carazo and McKinnis and made credibility determinations, ultimately believing Carazo’s testimony. Further, the exhibits and documentation introduced into evidence at the hearing confirm Cara-zo’s testimony.

The trier of fact determines the credibility of witnesses, and within the bounds of rationality, may accept or reject the testimony. Salassi v. Salassi, 08-510 (La.App. 5 Cir. 5/12/09), 13 So.3d 670, citing State v. Wilson, 07-961 (La.App. 5 Cir. 4/15/08), 984 So.2d 870, 875. It is not the function of the appellate court to assess the credibility of witnesses or reweigh the evidence. Salassi, supra, citing, State v. Toussaint, 98-1214 (La.App. 5 Cir. 5/19/99), 734 So.2d 961, 964. When findings of fact are based on the credibility of witnesses, the manifest error standard demands great deference to the trier of fact’s findings. Salassi, supra, citing, Rosell v. ESCO, 549 So.2d 840, 844 (La.1989).

The trial court determined that Carazo’s testimony was credible and McKinnis’ testimony was not credible. Therefore, the trial court found there was a valid settlement agreement executed between McKin-nis and Farm Bureau. We find no reason to disturb the trial court’s findings.

Thus, we affirmed the trial court’s judgment granting Farm Bureau’s exception of res judicata.

AFFIRMED

1 pEDWARDS, J., Concurs in the Result.


author: ROLAND L. BELSOME, Judge.

text:
    Jonus JOHNSON v. FIRST NATIONAL INSURANCE COMPANY OF AMERICA, et al.
    No. 2010-CA-1335.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 27, 2011.

      Steve Joffrion, Prairieville, LA, for PlaintifiyAppellant.
    Michael E. Escudier, Charles V. Giorda-no, Tasha W. Hebert, Hebbler & Giordano, LLC, Metairie, LA, for Appellee, Progressive County Mutual Insurance Company.
    Court composed of Judge CHARLES R. JONES, Judge JAMES F. McKAY, III, Judge ROLAND L. BELSOME.
   ROLAND L. BELSOME, Judge.

| jThis appeal is taken from the trial court’s granting of summary judgment in favor of Progressive County Mutual Insurance Company.

On July 14, 2008, Jonus Johnson was working as a mechanic in his father’s shop. Among the vehicles in the shop for repairs that day were a Peterbilt dump truck and a Sterling truck. The Peterbilt truck was owned by Renaldo Simmons and the Sterling truck was owned by B & S Trucking, Inc. and Rudy St. Amand. Brandon St. Amand had driven the Sterling truck to the shop for service. While Mr. Johnson was changing the brakes-on the Peterbilt truck, Brandon mentioned to Mr. Simmons that he was interested in the operation of a truck with an automatic transmission like the Peterbilt. Simmons allowed Brandon to sit in the cab of the truck while it was undergoing the brake job.

During the time that Brandon was in the cab of the Peterbilt, Mr. Johnson requested that Simmons start the truck in order to maintain brake air pressure. Given that Brandon was already inside of the truck, Simmons asked Brandon to start the truck. The truck was in reverse gear when Brandon started the engine and | ?as a result, the truck rolled over the chocks and the jack, and onto Mr. Johnson’s right side causing multiple injuries.

Mr. Johnson filed suit against Brandon St. Amand, Renaldo Simmons, Safeco, and Progressive for his injuries and resulting damages. His first supplemental and amended petition named B & S Trucking and Rudy St. Amand as defendants alleging respondeat superior for failing to properly train Brandon. Progressive filed a motion for summary judgment on the issue of coverage, which the trial court granted. For the reasons that follow, we affirm.

At the time of the incident, the Sterling truck was covered by a Commercial Auto Insurance Policy issued by Progressive. The named insureds were B & S Trucking, Inc. and Rudy St. Amand with Boh Brothers Construction, Scioneaux, Inc., and Rudy St. Amand as additional insureds. Upon review of the facts and insurance policy, the trial court found that the language within the policy was clear and that there were no provisions which would afford coverage for the Peterbilt truck. Therefore, summary judgment was granted in favor of Progressive and Mr. Johnson appealed.

On appeal Mr. Johnson argues that the trial court erred in: 1) finding that Brandon St. Amand did not have permission from Renaldo Simmons to operate the Pet-erbilt dump truck at the time of the accident; 2) ruling that Brandon St. Amand was not an insured driver under the Progressive policy; 3) finding that there was no evidence that the Peterbilt truck was being operated by Brandon as a temporary substitute vehicle for the 2000 Sterling dump truck; and 4) failing to find that the [.^Progressive policy provided coverage to B & S Trucking, Inc. and/or Rudy St. Amand for the negligent acts of Brandon and for their failure to properly train Brandon on the operation of an automatic transmission dump truck.

This Court reviews the granting of a motion for summary judgment de novo. Schroeder v. Board of Supervisors of Louisiana State University, 591 So.2d 342, 345 (La.1991). A motion for summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact and that mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B).

An insurance policy is a contract between the parties and should be interpreted using the general rules of contracts as provided in the Civil Code. Huggins v. Gerry Lane Enterprises, Inc., 06-2816, 06-2843, p. 3 (La.5/22/07), 957 So.2d 127, 129 (citing Cadwallader v. Allstate Ins. Co., 02-1637, p. 3 (La.6/27/03), 848 So.2d 577, 580; Louisiana Ins. Guar. Ass’n v. Interstate Fire & Casualty Co., 93-0911, p. 5 (La.1/14/94), 630 So.2d 759, 763). The plain, ordinary and generally prevailing meanings should be given to words and phrases used in an insurance policy, unless the words have acquired a technical meaning. Id. (citing La. C.C. art. 2047; Cadwallader, 02-1637 at p. 3, 848 So.2d at 580; Carbon v. Allstate Ins. Co., 97-3085, p. 4 (La.10/20/98), 719 So.2d 437, 439). If the language of the insurance policy is clear and unambiguous, this Court must refrain from enlarging or restricting the provisions beyond the reasonably contemplated terms. Id. (citing Carrier v. Reliance Ins., Co., 99-2573, pp. 11-12 (La.4/11/00), 759 So.2d 37, 43).

|4Mr. Johnson’s first assignment of error challenging the trial court’s finding that Brandon did not have Simmons’ permission to use the Peterbilt truck is a misinterpretation of the trial court’s statement. In the trial court’s reasons for judgment it states that “... there was no permission by the insured for Brandon St. Amand to operate the Peterbilt at any time, much less on the date in question.” That statement is consistent with the evidence presented that B & S and/or Rudy St. Amand did not authorize or have any knowledge of Brandon entering the Peterbilt truck. Because the subject of the summary judgment was the coverage provided by the Progressive policy, any reference to the insured would be a reference to B & S and Rudy St. Amand, not Mr. Simmons. There is no indication that the trial court found Brandon entered the Peterbilt truck without Simmons’ permission. Thus, the first assignment of error is without merit.

In sum, Mr. Johnson’s three remaining assignments of error maintain that the provisions of the Progressive policy provide coverage for the claims asserted in this case. To determine the correctness of that assertion, this Court must analyze the facts and circumstances surrounding the accident together with the terms of coverage in the policy.

As for Brandon’s status under the policy, he is clearly not a named insured on the declaration sheet of the policy. However, as a “rated driver” and permissive user, Brandon is covered as an insured while operating a covered auto. The | ¡¡determination of coverage in this case rests solely on whether the vehicle in question, the Peterbilt truck, was a covered auto under the policy.

The policy’s declaration sheet lists the covered auto by make, model and vehicle identification number. The covered auto has a designation symbol of “7” referencing “specifically described ‘autos’ ”. Other autos may be covered if it fits the criteria set forth under Section I-Covered Autos (B) and (C).

Section I — Covered Autos

C. Certain Trailers, Mobile Equipment and Temporary Substitute
⅜ ⅝ ⅛* #
3. Any “auto” you do not own while used with the permission of its owner as a temporary substitute for a covered “auto” you own that is out of service because of its:
a. Breakdown;
b. Repair;
c. Servicing;
d. “Loss” or
e. Destruction.

Mr. Johnson argues that the substitute vehicle provision of the policy applies to this case. He directs this Court to Smith v. Louisiana Farm Bureau Casualty Ins. Co., 45,013, 45,014 (La.App.2d Cir.4/23/10), 35 So.3d 463, in support of his position. In Smith, a crawfish wholesaler used a pickup truck and trailer to deliver crawfish while his refrigerated truck was in the shop for repairs. Id. In an unfortunate turn of events, the trailer carrying the crawfish broke loose from the | ¡¡pick-up truck, crossed the median and struck a vehicle fatally injuring the driver. Id. The trial court found the truck and trailer were covered under the commercial auto policy that covered the refrigerated truck that was being repaired. Id. Because both the pick-up truck and trailer were needed to accomplish what the refrigerated truck would normally do, the Second Circuit held that both the pick-up truck and trailer were in use as a substitute vehicle for the insured auto. Id. Accordingly, coverage was extended to the damage caused by the trailer. Id.

We find this case distinguishable from Smith. The Peterbilt truck was not being operated in any manner that would constitute it being a substitute vehicle for the Sterling truck. The evidence is undisputed; the Peterbilt truck was in the process of being repaired, so it was inoperable at the time the accident occurred. Mr. Johnson suggests that Brandon was using the Peterbilt truck in some training capacity, but that is not supported by the evidence. Brandon was curious and expressed interest in the truck’s automatic transmission. He was not receiving instruction or being advised while in the cab of the Peterbilt truck. Further, he was not authorized by or acting on behalf of B & S or Rudy St. Amand. Entering the cab of the Peterbilt truck was an independent act committed outside the scope of his employment with B & S and Rudy St. Amand. The Progressive policy covering the Sterling truck does not extend to this incident.

Accordingly, we find the trial court was correct in granting summary judgment in favor of Progressive County Mutual Insurance Company.

AFFIRMED.

      . Progressive policy Section II- — -Liability Coverage
      A. Coverage
      We will pay all sums an "insured” legally must pay as Damages because of "bodily injury” or "property damage” to which this insurance applies, caused by an "accident” and resulting from the ownership, maintenance or use of a covered "auto".

      1. Who Is an Insured The following are "insureds”:
      a. You for any covered "auto".
      b. Anyone else while using with your permission a covered "auto” you own, hire or borrow_(emphasis added).

      . The policy at issue lists one covered auto, a "2000 Strg LT9 YIN: 2EXEWEBSYAF36929.


author: CHARLES R. JONES, Judge.

text:
    Hamilton HOWARD v. LOUISIANA CITIZENS PROPERTY INSURANCE CORPORATION.
    No. 2010-CA-1302.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 27, 2011.

      Kevin Tucker, Kevin Tucker, Attorney at Law, Metairie, LA, for Plaintiff/Appellant.
    Wayne J. Fontana, Jennifer L. Sinder, Fontana & Seelman, LLP, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge CHARLES R. JONES, Judge JAMES F. McKAY, III, and Judge ROLAND L. BELSOME).
   CHARLES R. JONES, Judge.

h The Appellant, Hamilton Howard, appeals the judgment of the district court granting a motion to enforce settlement in favor of the Appellee, Louisiana Citizens Property Insurance Corporation, and dismissing the case of Mr. Howard with prejudice. Finding that the district court did not err in granting the motion to enforce, we affirm.

Mr. Howard owns a home in Orleans Parish located at 4533 Piety Drive, which sustained roof and structural damages during Hurricane Katrina. He had a homeowner’s insurance policy with Louisiana Citizens Property Insurance Corporation (“Citizens”) for his Piety Dr. property. He alleges that his entire roof had to be replaced, and the contents of his home were lost.

Citizens paid Mr. Howard $31,827.23 for damages sustained to his home under his homeowner’s policy. Subsequently, Mr. Howard and a representative for Citizens, adjuster Paul Ritchie, participated in mediation that was provided for through the “Louisiana Department of Insurance Mediation Program for Residential Claims Affected by Hurricanes Katrina and Rita,” pursuant to Emergency Rule 22, promulgated by the Department of Insurance of the State of | ¡.Louisiana. Citizens and Mr. Howard reached an agreement at the mediation to settle the remainder of the homeowner’s claim of Mr. Howard. Both parties signed a Mediation Settlement Agreement wherein Mr. Howard agreed to accept a total of $30,536.15 in final settlement for the damages sustained to his home for Coverages A through D under his policy.

Six days after mediating his claims with Citizens, Mr. Howard filed suit against Citizens alleging that the insurance company defrauded him at the mediation. Citizens then filed a motion to enforce settlement agreement, which the district court granted after a show cause hearing was held in March 2010. However, Mr. Howard subsequently filed a motion for new trial, which the district court granted, and ordered that a new hearing on the motion to enforce be held. In June 2010, the district court granted the motion to enforce settlement agreement and dismissed the claims of Mr. Howard with prejudice. Mr. Howard timely sought the instant appeal.

Mr. Howard raises two issues for review on appeal:

1. Is the motion to enforce settlement agreement the appropriate pretrial procedure?
2. Was sufficient evidence presented to the district court to preclude dismissal at summary judgment?

In reviewing the judgment of the district court, we apply the manifest error standard of review. Both parties argue that the proper standard of review is de | ¿novo. However, the district court made a factual determination that a contract existed between the parties when the court ruled on the motion to enforce settlement agreement. Thus, we apply the manifest error or clearly wrong standard. Rogers v. Mumford, 2008-1144, p. 5 (La.App. 3 Cir. 2/4/09), 6 So.3d 848, 851. In Keller v. Monteleon Hotel, 09-1327, p. 2 (La.App. 4 Cir. 6/23/10), 43 So.3d 1041, 1042, we further explained the manifest error standard of review:

Appellate courts review findings of fact made by the trial court judge using the manifestly erroneous or clearly wrong standard of review. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). ‘[Wjhere there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable.’ Id. ‘Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong’ Id.

In his first assignment of error, Mr. Howard argues that the district court erred in considering the motion to enforce settlement agreement without an eviden-tiary hearing. Furthermore, Mr. Howard argues that summary judgment is inappropriate in this type of case because subjective facts are controlling. He maintains that the district court could not have properly rendered its summary judgment ruling without making improper factual findings and alleges that the court made credibility determinations on the issues of fraud and the alleged bad faith of Citizens by just reviewing affidavits.

Citizens argues that Mr. Howard has improperly characterized its motion to enforce settlement agreement as a motion for summary judgment, and the two motions are not similar. It argues that a motion for summary judgment has a burden of proof that is specific to itself, requiring that a mover prove that there is “no genuine issue of material fact” under La C.C.P. art. 966. Citizens argues that it [4filed its motion to enforce settlement agreement, pursuant to the rules governing written motions in Book II of the Louisiana Code of Civil Procedure, specifically with respect to Articles 961, 962 and 963. It argues that its motion was a standard pre-trial motion that was subject to the rules of ordinary proceedings. Citizens argues that both a motion to enforce settlement agreement and a motion for summary judgment are governed by the laws of ordinary proceedings, in Book II of the Louisiana Code of Civil Procedure, instead of the laws controlling summary proceedings, in Book V of the Code of Civil Procedure.

Citizens further argues that the claim of Mr. Howard that the district court erred in not holding an evidentiary hearing is without merit because a contradictory hearing was held on June 4, 2010, on the motion to enforce settlement agreement after Mr. Howard was served with the motion. Both parties participated in the contradictory hearing, filed briefs and presented arguments before the court.

We note that there is a need for some procedural clarification regarding the distinction between a motion to enforce a settlement agreement and a motion for summary judgment because Mr. Howard is confusing the two motions. There are three different modes of procedure used in civil matters in district courts: ordinary, summary and executory. La. C.C.P. art. 851. Ordinary proceedings are governed by the articles in Book II of the Louisiana Code of Civil Procedure, whereas Book V contains the articles controlling summary and executory proceedings. As Citizens argued, a motion for summary judgment is only tried in an ordinary proceeding, wherein the mover argues that there is no genuine issue of material fact and thus, the mover is entitled to judgment as a matter of law. See La. C.C.P. art. 966-69. Yet, motions to enforce settlement are apt to present the narrow issue of making compulsory the terms of an agreement. See Banque De Depots v. Bozel Mineracao E Ferroligas, 98-0742, pp. 10-11 (La.App. 4 Cir. 1/27/99), 728 So.2d 533, 538, writ denied sub nom., Depots v. Ferroligas, 99-0557 (La.4/23/99), 742 So.2d 882. See also Raphael v. Raphael, 2001-1564, p. 5 (La. App. 3 Cir. 5/8/02), 817 So.2d 462, 465.

Furthermore, motions to enforce settlement are triable in a summary proceeding, which are conducted with rapidity, within the delays allowed by the court, and without citation and the observance of all the formalities required in ordinary proceedings. La. C.C.P. art. 2591. We explained in Banque that the use of summary proceedings assists in expediting the resolution of narrow issues, and encouraging parties that their agreements will rapidly be enforced:

... when a settlement of litigation is sought to be enforced, a motion to enforce that settlement is properly characterized as “an incidental question arising in the course of [that] litigation” which may properly be addressed by a summary proceeding (i.e. a motion) rather than by a completely new civil action. La.Code Civ. Proc. art. 2592(1). “Generally, summary proceedings are allowed in instances where the issue to be resolved is narrow and/or the need for rapid adjudication is great.” Clay v. Clay, 389 So.2d 31, 35 (La.1979). Motions for enforcement of litigation settlements, which settlements must be either in writing or recited on the record in open court, La. Civ.Code art. 3071, are apt to present narrow issues. As to the need for rapidity, settlements of litigation, which are to be encouraged, are made more likely when parties have confidence that they can be enforced, if necessary, by the most expeditious procedure the law allows.

Banque De Depots, 98-0742, pp. 10-11, 728 So.2d at 538. See also Raphael v. Raphael, p. 5, 817 So.2d at 465. Thus, albeit that Citizens raised its motion through an ordinary proceeding, the motion may be addressed through a summary proceeding.

In the matter sub judice, a motion to enforce settlement agreement was properly used to raise the narrow issue of whether the issue in dispute has been | (¡settled. This motion is substantively distinct from a motion for summary judgment. Furthermore, the timely consideration of the motion was in the best interest of judicial economy, and served to expedí-tiously resolve a homeowner’s insurance claim arising out of Hurricane Katrina, which as a matter of policy, is of the utmost importance to the Louisiana judiciary. Mr. Howard had the opportunity to file a brief in opposition to the motion, and to present oral argument against the motion at the contradictory hearing before the district court.

Also, had Mr. Howard felt that Citizens was improperly using summary proceedings, he had to object to the usage in the district court. This court has explained that the defense of improper use of summary proceedings must be raised in the form of an exception in the district court, otherwise the objection to the use of summary procedure is waived. La. C.C.P. art. 926(B). In Impastato v. Bruno, 503 So.2d 189, 189-90 (La.App. 4 Cir.1987), we stated:

... the defense of improper use of summary proceedings must be raised by dilatory exception. C. C.Pro.Art. 926(3). An exception to a summary proceeding shall be filed prior to, and shall be disposed of on the trial. C. C.Pro. Art. 2593. “All objections which may be raised through the dilatory exception are waived unless pleaded therein.” C. C.Pro. Art. 926.

Considering that Mr. Howard did not timely except to usage of summary proceedings by Citizens in the district court, and that the motion to enforce settlement agreement was properly raised and considered by the district court, we find that the district court did not err in considering the motion. This assignment of error is without merit.

The second issue raised by Mr. Howard is whether he provided sufficient evidence to preclude dismissal at summary judgment. As we discussed above, the insurance claim of Mr. Howard was dismissed after a contradictory hearing was |7held on the motion to enforce settlement agreement of Citizens. Thus, the issue at the crux of this matter is whether the district court committed manifest error in granting the motion to enforce settlement.

Mr. Howard argues that the settlement was not valid because he was fraudulently induced into signing a settlement agreement with Citizens. He further argues that Citizens fraudulently concealed the true value of his claim, in violation of the duty of good faith, prior to the time the parties entered into the Settlement Agreement. Thus, he argues that Citizens gained an unjust and unfair advantage, leading to their unjust enrichment, at his expense. Lastly, he argues that the adjuster for Citizens:

1. misrepresented the facts by failing to include all the items damaged by wind in the Citizens adjustment;
2. failed to provide a copy of the insurance policy at the mediation as required by Emergency Rule 22;
3. refused to recognize the full additional living expense claim, and the full contents claim, but instead kept silent on the issue of coverage;
4. arbitrarily picked a settlement figure, refused to negotiate further, and “left Mr. Howard with no choice: either take their settlement figure or go home with nothing.”

He submitted two affidavits in support of his opposition to the motion: one from himself and the other from the adjuster he hired, Steve Hitchcock. Mr. Howard argues that he discovered that the $49,036.91 adjustment that Citizens presented to him was less than half of what Mr. Hitchcock determined to be the value of the damages the subject property sustained.

Citizens argues that at mediation Mr. Ritchie reviewed all the documentation presented by Mr. Howard, including the $125,000 estimate for damages relating to 1 ¡¡Coverages A and B. Citizens argues that Mr. Ritchie allowed for the additional roofing costs included in said estimate, as well as for expenses related to germicide and duct repair to the areas affected by wind damage. When Mr. Ritchie presented Mr. Howard with an offer of $22,983.22 for Coverage “A” damages, Mr. Howard accepted the offer. Regarding the settlement of Coverage B damages, Citizens further argues that Mr. Ritchie allowed for the difference in the original report prepared by Mr. Hitchcock and the re-inspection, a differential of $208.93. For Coverage “B” damages, Mr. Ritchie presented an offer of $208.93, which Mr. Howard accepted.

Citizens also argues that it settled with Mr. Howard for his wind damages claim under Coverage C of his policy, for contents. Citizens argues that it approved the entire list of wind damages that Mr. Howard sustained to his upstairs bedrooms. Mr. Howard accepted $3,500 in settlement, which was the very amount he presented in his estimate for his Coverage C claim. Lastly, Coverage D, the additional living expense or loss of use claim of Mr. Howard, was settled for $3,844. Citizens argues that while Mr. Howard requested a settlement amount of $5,692 for additional living expenses, Mr. Richie determined that some of the additional living expenses claimed did not fall within the mandatory evacuation period. Citizens argues that Mr. Howard accepted all four offers presented to him at mediation, and thus, fully compromised his insurance claim.

Compromises are favored in the law and the burden of proving the invalidity of such an agreement is on the party attacking it. Elder v. Elder & Elder Enterprises, Ltd., 2006-0703, p. 4 (La.App. 4 Cir. 1/11/07), 948 So.2d 348, 351, writ denied, 2007-0560 (La.5/4/07), 956 So.2d 616, citing Duet v. Lucky, 621 So.2d 168, 172 (La.App. 4 Cir.1993) and Ellison v. Michelli, 513 So.2d 336 (LajApp.g 4 Cir.1987)). Also, La. C.C. art. 3071 provides that a compromise is a contract whereby the parties, through concessions made by one or more of them, settle a dispute or an uncertainty concerning an obligation or other legal relationship. The meaning and intent of the parties to a written instrument, including a compromise, is ordinarily determined from the four corners of the instrument. Chalmette Retail Ctr., L.L.C. v. Lafayette Ins. Co., 2009-0217, p. 9 (La. App. 4 Cir. 10/16/09), 21 So.3d 485, 492-93, reh’g denied (Nov. 10, 2009), writ denied, 2009-2685 (La.4/9/10), 31 So.3d 392 and writ denied, 2009-2692 (La.4/9/10), 31 So.3d 393. Extrinsic (parol) evidence is inadmissible to explain or to contradict the terms of the instrument. Id. Furthermore, La. C.C. art. 2046 sets forth the general rule of construction, providing that “[w]hen the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent.”

In Elder, p. 3, 948 So.2d at 350-51, we further explained that:

[c]ontracts are formed by the consent of the parties established through offer and acceptance. La. Civ.Code art. 1927. Thus, “before a district court can find the existence of a valid written compromise agreement, it must find an offer and an acceptance.” McRae v. Ellis, 93-1579 (La.App. 4 Cir. 2/11/94), 632 So.2d 841, 843 (citing Felder v. Georgia Pacific Corp., 405 So.2d 521, 523-524 (La.1981)).

The agreement at issue in the matter sub judice states in pertinent part:

[t]his settlement amount is full, complete, and a total final payment by the insurance company to the homeowner for the claim brought to the mediation. Both parties release any and all claims of any kind whatsoever against one another ...
Lastly, both parties recognize that this is a final and enforceable contract, with the exception being that that the homeowner, if not represented by counsel at this | mmediation, shall have three (3) working days within which to rescind this agreement, unless the homeowner has already cashed the check provided herein by the insurance company.

The record does not reveal that Mr. Howard was fraudulently induced to settle with Citizens. Indeed, it appears that he personally negotiated with Citizens of his own volition, and understood his actions. Mr. Howard essentially received the amounts he demanded in settlement of Coverages B through D, as there was less than a $2,000 difference between what he demanded and received. Thus, it appears that his primary issue with the agreement is the amount he accepted in settlement for Coverage A.

Allegedly accompanied by his adjuster Mr. Hitchcock, and armed with his own appraisal of approximately $125,600, Mr. Howard entered into mediation of the belief that the value of his damages for Coverage A was valued at over $120,000. However, he settled his Coverage A claim for $22,983.22, which is $102,016.78 less than the value contained in the estimate of his own adjustor. He further argues that Mr. Ritchie left him with no choice when Mr. Ritchie told him that if he did not accept the offer he would leave with nothing.

Even if Mr. Ritchie did take such a hardline position, he still left Mr. Howard with a choice: settle or leave the mediation with nothing to pursue resolving his claim through litigation or some other means. Mediation is a nonbinding alternative dispute resolution process. Section 4119(A)(1) of Emergency Rule 22 states: “[mjediation is non-binding unless all the parties specifically agree otherwise in writing.” Furthermore, Section 4121(A) of Emergency Rule 22, entitled Non-participation in mediation program, provides that:

Inlf the insured decides not to participate in this claim resolution process or if the parties are unsuccessful at resolving the claim, the insured may choose to proceed under the appraisal process set forth in the insured’s insurance policy, by litigation, or by any other dispute resolution procedure available under Louisiana law. [Emphasis added].

Mr. Howard did not have to settle his claim during the mediation because this process is nonbinding. He does not argue that anyone represented to him otherwise.

Furthermore, Emergency Rule 22 also sets forth an explanation of what it means to negotiate in good faith in Section 4115, entitled Conduct of the Mediation Conference, wherein it states in pertinent part:

A. R.S. 9:4101 C(4) provides “Mediation” is a procedure in which a mediator facilitates communication between the parties concerning the matters in dispute and explores possible solutions to promote reconciliation, understanding, and settlement. As such, it is not necessary to involve a private attorney and participation by private attorneys is discouraged by the Department. However:
4. Both parties must negotiate in good faith. A decision by an insurer to stand by a coverage determination shall not be considered a failure to negotiate in good faith. A party will be determined to have not negotiated in good faith if the party or a person participating on the party’s behalf, continuously disrupts, becomes unduly argumentative or adversarial, or otherwise inhibits the negotiations as determined by the mediator.

In the matter sub judice, what Mr. Howard alleges to be the bad faith acts of Citizens amounts to the company standing by its policy determinations, which is an action that is specifically referenced as not being considered to be in bad faith 112under Emergency Rule 22. Thus, the alleged conduct of Mr. Ritchie on behalf of Citizens does not constitute bad faith.

Another argument raised by Mr. Howard is that Citizens fraudulently induced him into settling his claim. A fraud action against a party to a contract has three basic elements: (1) a misrepresentation, suppression, or omission of true information; (2) the intent to obtain an unjust advantage or to cause damage or inconvenience to another; and (8) the error induced by a fraudulent act must relate to a circumstance substantially influencing the victim’s consent to (a cause of) the contract. Shelton v. Standard/700 Associates, 2001-0587 (La.10/16/01), 798 So.2d 60, 64. To succeed on a claim of fraudulent inducement, Mr. Howard has to satisfy all three elements of a fraud action. Mr. Howard contends that his production of affidavits is sufficient factual support to establish that he can prove at trial that fraud occurred. Specifically, Mr. Howard argues that he has demonstrated that the Defendant intended to defraud him or gain an unfair advantage.

However, aside from the self-serving affidavits of Mr. Howard and his appraiser, whose presence at the mediation is not substantiated, the record is void of any direct evidence supporting any of the elements of a fraud claim. Indeed, the record evidences that for whatever reason, Mr. Howard chose to accept at the mediation an amount lower than what his appraisal reflected.

Lastly, Mr. Howard was also afforded the opportunity to rescind his agreement to the settlement within three (8) days of the settlement — pursuant to the agreement — because a homeowner “if not represented by counsel at this mediation, shall have three (3) working days within which to rescind this agreement, unless the homeowner has already cashed the check provided herein by 11Rthe insurance company.” Additionally, § 4119(A)(3) of Emergency Rule 22 also states:

... if a settlement is reached, the insured shall have 3 business days within which he or she may rescind any settlement agreement provided that the insured has not cashed or deposited any check or draft disbursed to him or her for the disputed matters as a result of the conference.

Mr. Howard was not represented by counsel at the mediation, and could have rescinded the settlement; however, he did not avail himself of the opportunity. Furthermore, Mr. Howard negotiated all four settlement checks after filing suit against Citizens. The district court made a factual determination that a valid agreement existed between the parties, and the existence of said agreement was dispositive of the instant insurance dispute.

DECREE

For the foregoing reasons, the judgment of the district court granting the motion to enforce settlement agreement of Louisiana Citizens Property Insurance Corporation, and dismissing the case of Howard Hamilton with prejudice, is affirmed.

AFFIRMED.

      . Emergency Rule 22 calls for the "effective, fair, and timely handling of personal lines insurance claims”.

      . Mr. Howard specifically received:
      Coverage "A” Dwelling: $22,983.22
      Coverage "B” Other Structures: $ 208.93
      Coverage "C” Personal Property: $ 3,500.00
      Coverage "D” Loss of Use:_$ 3,844.00
      Total Mediation Settlement $30,536.15

      . Although Mr. Hitchcock attested that he was present at the mediation, Mr. Ritchie attested that Mr. Hitchcock was not present.


author: PAUL A. BONIN, Judge. BAGNERIS, J.,

text:
    WALLACE C. DRENNAN, INC. v. CITY OF NEW ORLEANS.
    No. 2010-CA-1301.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 27, 2011.

      Loretta G. Mince, Daniel J. Carr, Fish-man Haygood Phelps Walmsley Willis & Swanson, L.L.P., New Orleans, LA, for Plaintiff/Appellee.
    Nannette Jolivette-Brown, City Attorney, Robert J. Ellis, Jr., Deputy City Attorney, Darryl M. Phillips, Chief Deputy City Attorney, Lauren J. Delery, Assistant City Attorney, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge DENNIS R. BAGNERIS, SR., Judge PAUL A. BONIN).
   PAUL A. BONIN, Judge.

| Wallace C. Drennan, Inc., a contracting firm, was the lowest responsible, and thus the successful, bidder on two public-works projects advertised by the City of New Orleans. Because the City failed to execute contracts within the statutory deadlines of forty-five days from the awarding of the bids to Drennan and thereafter of thirty days from that date to issue notices to proceed, Drennan sued the City for damages due to the delay occasioned by the City’s tardiness. The City replied that the statutory deadlines did not apply because Drennan had been given the requisite notice of the inapplicability of the deadlines in its official bid advertisements.

Drennan moved for partial summary judgment. See La. C.C.P. ART. 966 E. Drennan’s motion sought a judgment in its favor on liability alone, reserving for trial the issue of damages. The trial court rendered a partial judgment in Drennan’s favor on the issue of liability alone, and designated the judgment as 12final and immediately appealable. See La. C.C.P. Art. 1915 B(l). The City devolutively appeals the partial summary judgment in Dren-nan’s favor. See La. C.C.P. Art. 1911.

“Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate.” Duncan v. U.S.A.A. Ins. Co., 06-0363, pp. 3-4 (La.11/29/06), 950 So.2d 544, 547. “[A] motion which shows that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law shall be granted.” La. C.C.P. Art. 966 C(l). After our de novo review of the partial summary judgment, we conclude that Drennan is entitled as a matter of law to a judgment finding the City liable on the claim for damages due to delay. Accordingly, we affirm the partial summary judgment and remand the case for a trial on damages. We explain our conclusion in greater detail below.

I

In this Part we discuss the historical facts necessary to an understanding of our substantive decision.

| sIn late 2001 the City advertised for bids under the provisions of the Louisiana Public Bid Law for street and utility renovation to certain streets. Drennan was the lowest responsible bidder on two of the projects: Touro and Prytania. Only after delays of over seven months on the Touro project, and over nine months on the Prytania project, did Drennan receive a Notice to Proceed and begin work.

The published advertisements appeared in the The Times-Picayune for the Touro project on October 23, 30, and November 6, 2001, and for the Prytania project on October 30, November 6, and November 13, 2001. The published notices stated that the projects were expected to be partially funded by a grant from the United States Environmental Protection Agency with matching funds from the New Orleans Sewerage and Water Board. On February 26, 2002, the City informed Drennan that it was the lowest responsible bidder for both projects.

But the City and Drennan did not sign a contract for the Touro project until April 12, 2002. At that time no contract was signed for the Prytania project. Then, on April 19, 2002, the Sewerage and Water Board notified the City that it did not approve the projects and withheld its matching funds.

On July 1, 2002, Drennan filed a petition for mandamus against the City. Following the filing, on August 1, 2002, the City issued a Notice to Proceed on the Touro project. Also, a contract for the Prytania project was signed on August 13, 2002; the City issued the Notice to Proceed for the Prytania project on September 30, 2002, and the street repairs began.

II

At the outset of our discussion, we note that Drennan’s cause of action is implied in the Public Bid Law:

Any provision contained in a public contract which purports to waive, release, or extinguish the rights of a contractor to recover cost of damages, or obtain equitable adjustment, for delays in 'performing such contract, if delay is caused in whole, or in part, by acts or omissions within the control of the contracting public entity or persons acting on behalf thereof, is against public policy and is void or unenforceable. When a contract contains a provision which is void and unenforceable under this Subsection, that provision shall be severed from the other provisions of the contract and the fact that the provision is void and unenforceable shall not affect the other provisions of the contract.

La. R.S. 88:2216 H (emphasis added).

Drennan alleges that it sustained damages due to the failure of the City to perform its obligations under the Public Bid Law within the time requirements of § 38:2215. A political subdivision, like the City, “upon receipt of bids for the undertaking of any public works contract shall act within forty-five calendar days of such receipt to award said contract to the lowest responsible bidder or reject all bids.” La. R.S. 38:2215 A. “Upon the execution of the contract, the public entity, within thirty days thereafter, shall issue to the contractor a notice to proceed with the project.” La. R.S. 38:2215 C. “These provisions shall not be subject to waiver.” La. R.S. 38:2215 D. There is no factual dispute that the City did not perform by these deadlines with respect to either project.

|fiThe City, however, points out that these deadlines do not apply under circumstances which are specified for in the same statute, which also provides:

The [time limit] provisions of this Section shall not be applicable when the contract is to be financed by bonds which are required to be sold after receipt of bids on the contract, or when the contract is to be financed in whole or in part by federal or other funds which will not be readily available at the time bids are received, or on contracts which require a poll of the legislature of Louisiana before funds are available to fund the contract. In the event the time limit stipulated herein is not applicable because of one of the exceptions outlined above, this fact shall be mentioned in the specifications for the project and in the official advertisement for bids required in accordance with R.S. 38:2212.

La. R.S. 38:2215 B. This provision, too, is not subject to waiver. See La. R.S. 38:2215 D.

Specifically, the City argues that, because these street repair contracts were “to be financed in whole or in part by federal or other funds which will not be readily available at the time bids are received,” the 45-day contract and the 30-day notice to proceed deadlines are rendered inapplicable and, consequently, it further argues in its defense, the City is not liable to Drennan for any so-called delay. La. R.S. 38:2215 B.

Importantly, however, the City agrees that unless notice of the inapplicability of the statutory deadlines has been given to the bidders in the official advertisements, the deadlines would apply after all: “In the event the time limit stipulated herein is not applicable because of one of the exceptions outlined above, this fact shall be mentioned in the specifications for the project and in the official advertisement for bids required in accordance with R.S. 88:2212.” Id. (emphasis added). We emphasized the mandatory aspect of mentioning an | (¡exception provided in § 38:2215 B to the time limits set out § 38:2215 A in the official advertisements in Upper Pontalba Bldg. Restoration Corp. v. Pete Vicari General Contractor, 00-2103, pp. 7-9 (La.App. 4 Cir. 6/27/01), 790 So.2d 130, 135-136. There the City -in its project manual noted that bids were being sought to use as a final cost estimate to obtain financing and, if no financing comes forth, “the City is not liable to any bidder.” Id., 00-2103 at p. 3, 790 So.2d at 133. But this bare information was not contained in the official advertisements in The Times-Picayune. Because the City failed to mention the financing condition in the official advertisements, we concluded that the City failed to prove the applicability of any exception provided in § 38:2215 B. Id., 00-2103 at pp. 8-9, 790 So.2d at 135-136. Moreover, the City “may not treat substantive requirements of the Bid Law, the advertisement for bids and the bid forms as mere informalities.” Wallace C. Drennan, Inc. v. Sewerage & Water Bd. of New Orleans, 00-1146, p. 7 (La.App. 4 Cir. 10/3/01), 798 So.2d 1167, 1173 (emphasis added).

Thus, the City concedes that our decision in Upper Pontalba is authoritative for the proposition that the official advertisements must contain an explicit statement regarding any applicable exception under § 38:2215 B.

There is no factual dispute about the content of the City’s official advertisements, which read:

Any contract or contracts awarded for sewer related work identified in this Advertisement are expected to be funded in part by a grant from the United States Environmental Protection Agency with matching funds from the Sewerage and Water Board of New Orleans. Neither the United States nor any of its departments, agencies or employees is or will be a party to this Advertising or any resulting contract. Procurement will be subject to regulations contained in 40 CFR part 31, |7including the requirements of the EPA Supplemental Conditions, 40 CFE 31.36(e), “Contracting with small and minority firms, women’s business enterprises, and labor area firms.” (emphasis added)

Thus, we are called upon to decide only whether the content of the foregoing advertisement satisfies the requirement of § 38:2212 B that “[i]n the event the time limit stipulated herein is not applicable because of one of the exceptions outlined above, this fact shall be mentioned,” to which task we turn in the following Part.

Ill

From our consideration of all of the provisions of § 38:2212, we conclude that the content of the City’s advertisements did not satisfy the requirements of the statute and that the deadlines do apply. The interpretation of a statute is a matter of law. Red Stick Studio Development, L.L.C. v. State, Department of Economic Development, 10-0193, p. 5 (La.1/19/11), 56 So.3d 181, 185. “Words and phrases shall be read with their context and shall be construed according to common and approved usage of the language .... The word ‘shall’ is mandatory and the word ‘may’ is permissive.” LA. R.S. 1:3. “When the wording of a Section is clear and free of ambiguity, the letter of it shall not be disregarded under the pretext of pursuing its spirit.” LA. R.S. 1:4. See also La. Civil Code Art. 9; Red Stick, 10-0193 at p. 5, 56 So.3d at 185; New Orleans Rosenbush Claims Service, Inc. v. City of New Orleans, 94-2223, p. 11 (La.4/10/95), 653 So.2d 538, 544.

The City argues that “[a]ny contract or contracts awarded for sewer related work identified in this Advertisement are expected to be funded in part by a grant from the United States Environmental Protection Agency with matching funds | sfrom the Sewerage and Water Board of New Orleans” is mention of a particular fact (“to be financed in whole or in part by federal or other funds which will not be readily available at the time bids are received”) necessary to trigger the exception. We disagree for two reasons.

First, we too understand that the information in the official advertisements provides part of the required information; these projects may be financed in whole or in part by federal (that is, the EPA) or other (that is, the Sewerage and Water Board), funds. But there is nothing which compels the bidder to understand that the City’s “expectation” of the sources of the funding means that the funding “will not be readily available at the times the bids are received.” Indeed, it is worth noting that as a matter of undisputed fact, the matching funds of the EPA were always available and, when the Sewerage and Water Board balked at contributing to the funding of the projects, the City expended its own available funds. Thus, as the trial judge commented, the language of the advertisement “merely informs bidders of technical issues related to the possible use of federal funds.”

The more important reason, however, for our disagreement with the City is the failure of the City’s advertisements to mention the fact that the time limitations (or statutory deadlines) do not apply. There is nothing explicit in the official advertisements mentioning that the funding will not be available at the times the bids are received. And, critically, there is nothing in the advertisements informing [9the bidders that the time limits of § 38:2215 A (forty-five days from receipt of bids to award of contract and thirty days from contract to notice to proceed) are not applicable:

In the event the time limit stipulated herein is not applicable because of one of the exceptions outlined above, this fact shall be mentioned in the specifications for the project and in the official advertisement for bids required in accordance with R.S. 38:2212.

La. R.S. 38:2215 B (emphasis added). The “fact” to be mentioned is that the “time limit herein is not applicable.” As we have already stated, the non-City source of the funds is not the “fact” which must be mentioned. Also, mere “unavailability” of funds at the time of the receipt of bids is not the “fact” which must be mentioned. If the City did not have available funds sufficient for the projects, it could have rejected all of the bids for “just cause.” See La. R.S. 38:2214 B(l). But even the rejection of bids for just cause must be accomplished within the non-waivable time limitations of La. R.S. 38:2212 A. See Rosenbush, 94-2223 at p. 15, 653 So.2d at 546.

Therefore, we find that it is the inapplicability of the time limitations which is the “fact” which must be mentioned in the official advertisements. And we further find that the City’s advertisements did not mention that fact.

IV

The City alternatively argues that Drennan “waived” any complaint about the imprecision of its notice. On this point, too, we disagree.

hnln support of its contention that Dren-nan “waived” any right to protest the terms of the advertisement, The City points us to the Supreme Court’s decision in Apolinar v. Professional Const. Services, 95-0746 (La.11/27/95), 663 So.2d 17. We will be brief on this point because, as we have observed above, the provisions for both the time limits and the advertisement requirements of § 38:2215 “shall not be subject to waiver.” La. R.S. 38:2215 D.

Apolinar is inapplicable to the issues under consideration. The contractor, who was the successful bidder and was awarded the public contract, had not challenged a bid requirement that the winning bidder pay overtime wages to its employees. The contractor did not comply with that requirement and was later sued by an employee for the overtime pay. The Louisiana Supreme Court on those facts held that the contractor waived any challenge to the bid specifications because it “did not qualify its bid or in any manner object to the provision prior to the time of bidding. Nor did [the contractor] file a declaratory judgment action to have this term of the bid specifications declared invalid.” Apoli-nar, 95-0747, pp. 4-5, 663 So.2d at 19.

In our case, there is no bid requirement for Drennan to have challenged. So there is no challenge which was “waived.” And, most importantly, neither Drennan nor the City could have waived the provisions of § 38:2215. The Public Bid Law is a prohibitory law founded on public policy, and the City has no authority to take any action which is inconsistent with it. See Broadmoor, L.L.C. v. Ernest N. Mortal New Orleans Exhibition Hall Authority, 04-0211, p. 6 (La.3/18/04), 867 So.2d 651, 656.

JnV

We conclude that partial summary judgment in favor of Drennan on the issue of liability is appropriate. The City’s advertisement for bids for these public works contracts did not mention the fact that the statutorily-mandated time limitations did not apply to these contracts. Because the City failed to establish that the time limits did not apply and that its advertisement mentioned that fact, and it did not reject all bids for just cause or extend the deadline by mutual consent with Drennan, the lowest responsible bidder, it had forty-five days to award the contract to Drennan. See Rosenbush, 94-2223 at p. 15, 653 So.2d at 546; see also n. 7, ante. The City’s failure renders it liable for Drennan’s damages.

REMAND INSTRUCTIONS

Having decided that the City is liable to Drennan for damages occasioned by the delay in executing the contracts and issuing the notices to proceed on the Touro and Prytania street and utility repair projects, we remand this matter to the district court for a trial limited to the assessment and award of damages due to Drennan by the City. At the limited trial, the City, of course, is entitled to offer proof of its affirmative defense that Drennan’s damages be reduced for its alleged failure to make reasonable efforts to mitigate its damages due to the City’s failure to timely perform its obligations. See La. Civil Code Art. 2002.

We also remand this matter to the district court for a trial for a determination of the City’s liability for damages, and if appropriate, the amount thereof, on 112Prennan’s claim for reimbursement. (This is the unrelated issue which we have not adjudicated on this appeal.)

DECREE

We affirm the partial summary judgment dated April 27, 2010, in favor of Wallace C. Drennan, Inc., determining that the City of New Orleans is liable to it for damages due to its delay in executing the contracts and issuing the notices to proceed on the Touro and Prytania street and utility repair projects. We remand to the district court for further proceedings to determine the amount of delay damages due to Wallace C. Drennan, Inc., by the City of New Orleans, and to adjudicate Drennan’s claim against the city for additional compensation for work performed on the Touro and Prytania projects.

AFFIRMED AND REMANDED

ARMSTRONG, C.J., concurs in the result.

BAGNERIS, J., concurs.

BAGNERIS, J.,

concurs.

1,1 respectfully concur in the result.

      . Drennan's suit also includes a distinct claim for $91,979.00 for reimbursement for additional work performed on the projects but not included within the contracts. This additional claim was not adjudicated in the district court and is not subject to this appeal.

      . The City also filed its own motion for summary judgment in which it sought dismissal of the Drennan’s claims for damages due to the delay. The trial court denied the City's motion.

      . Because the trial court did not provide express reasons for its designation, we issued a show cause order to the parties why the appeal should not be dismissed. See R.J. Messinger, Inc. v. Rosenblum, 94-1664, p. 3 (La.3/2/05), 894 So.2d 1113, 1116 (trial judge "should give explicit reasons on the records to why there is no just reason for delay; mere conclusory statements do not suffice”). In their response to our rule, the parties evaluated the Messinger factors. Messinger, 04-1664 at p. 7, n. 5, 894 So,2d at 1118, n. 5; see Guillory v. Progressive Security Ins., 10-0428 (La.5/21/10), 36 So.3d 219. Upon our de novo review, we are satisfied that there is no just reason for delay in obtaining immediate appellate review of the judgment, which is our overriding consideration, and that there is a sufficient basis for the trial court's certification. See Touro Infirmary v. Sizeler Architects, 04-0634, p. 4 (La.App.3/23/05), 900 So.2d 200, 203. Thus, this is a final judgment in which an appeal is given by law. See La. C.C.P. Art. 2083 A.

      .The City neither sought supervisory review of the denial of its own motion for summary judgment nor assigned as error in this appeal the denial of its motion. See Rule 1-3, Uniform Rules — Courts of Appeal. The denial of a motion for summary judgment is an interlocutory judgment. See La. C.C.P. Art. 968 ("An appeal does not lie from the court's refusal to render any judgment on the pleading or summary judgment.”) But it is well-settled that although an interlocutory judgment may not itself be immediately appeal-able, it is nevertheless subject to review by an appellate court when a judgment is rendered in the case which is appealable. People of the Living God v. Chantilly Corp., 251 La. 943, 207 So.2d 752 (1968); La.C.C.P. Art. 1915 B(2); see also, e.g., Phillips v. Gibbs, 10-0175, p. 4 (La.App. 4 Cir. 5/21/10), 39 So.3d 795, 798. "When an unrestricted appeal is taken from a final judgment, the appellant is entitled to seek review of all adverse interlocutory rulings prejudicial to him, in addition to the review of the final judgment.” Roger A Stet-ter, Louisiana Civil Appellate Procedure, § 3:32 (2010-2011 ed.).

      . The repairs, designated as Project No. 95-14-01C, extended from St. Claude Avenue to North Claiborne Avenue.

      . The repairs, designated as Project No. 95-8(96A & B), extended from Jefferson Avenue to Napoleon Avenue.

      . While these deadlines are not subject to waiver, "the public entity and the lowest responsible bidder, by mutually written consent, may agree to extend the deadline for award by one or more extensions of thirty calendar days.” See § 38:2215 A. There were no such extensions in this case.

      . The notice to proceed may also be extended "upon mutual consent by both parties.” La. R.S. 38:2215 C. There was no such extension.

      . New Oxford English American Dictionary, 3d ed. (2010), 609, defines "expect” as "regard something as likely to happen,” "believe that something or someone will arrive soon,” "look for something from someone as rightfully due or requisite in the circumstances,” or informally, "used to indicate that one supposes something to be so but has no firm evidence or knowledge: from Latin exspec-tare, 'look out for.' ” (This dictionary has been cited approvingly in La. Bag. Co., Inc. v. Audubon Indem.Co., 08-0453, p. 13 (La. 12/2/08), 999 So.2d 1104, 1114, and Reed v. State Farm Auto.Ins. Co., 03-0107, p. 13 n. 7 (La. 10/21/03), 857 So.2d 1012, 1020-1021 n. 7.)