author: MARION F. EDWARDS, Judge.

text:
    CENTURY 21 RICHARD BERRY & ASSOCIATES, INC. v. Renee J. LAMBERT.
    No. 08-CA-668.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 25, 2009.

      John A.E. Davidson, Attorney at Law, Metairie, Louisiana, for Plaintiff/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., MARION F. EDWARDS, and CLARENCE E. McMANUS.
   MARION F. EDWARDS, Judge.

12Plaintiff/appellant, Century 21 Richard Berry & Associates (“Century 21”), appeals the denial of a preliminary and permanent injunction against defendant/appel-lee, Renee Lambert (“Lambert”).

In May 2007, Century 21 filed a Petition for Preliminary and Permanent Injunction against Lambert, seeking to enjoin her from engaging in business that violated a non-compete clause agreement. Lambert entered into a Broker-Independent Contractor Agreement on March 7, 2005, in which Lambert became a real estate agent with Century 21. The agreement contained the following clause:

It is agreed that the Independent-Contractor will refrain from carrying on or engaging in the Real Estate Marketing, brokerage, sale or similar business to that performed by the Broker and also from soliciting customers of the broker within the parishes of Orleans, Jefferson, St. Charles, St. Tammany, St. Bernard and Plaquemines for a period of two years from the date the Independent-Contractor leaves the Broker’s company. This clause shall survive termination of this agreement and prohibits the engagement by Independent-Contractor in any business directly or indirectly which competes with that of the broker.

In February of 2007, Lambert left the company and requested the return of her real estate license. Century 21 returned the license and replied that Lambert would not be released from her agreement. At the time the suit was filed, Century j ¡¡21 learned that Lambert had placed her license with Keller Williams Realty (“Keller Williams”). Century 21 urged that, although the branch of Keller Williams where the license was placed was outside the parishes listed in the agreement, the brokerage competed directly with Century 21 in all of the listed parishes and maintained an office in each. It was also alleged that Lambert competed directly with Century 21 by placing an advertising sign on a bus bench in Jefferson Parish and had placed signs on real estate also in Jefferson. Finally, it was alleged that Lambert conducted real estate business from her home in Marrero.

The hearing on the injunction was set for August of 2007 and was continued several times until January 2008. On February 15, 2008, the trial court denied the petition for injunctive relief, and it is from this judgment that Century 21 appeals.

At the hearing, Richard Berry (“Berry”) testified that Century 21 had properties listed in Jefferson, Orleans, Plaquemines, St. Tammany, St. Bernard, and St. Charles Parishes. Photos were admitted at the hearing showing Lambert’s name and photograph with the Keller Williams name on a bus bench. According to Berry, the photos were taken in Jefferson. Other photos showed Lambert’s name and image on a “For Sale” sign for Keller Williams in front of property identified as being in Marrero. Lambert testified that the vast majority of Century 21’s listings were in Jefferson and Orleans Parishes. She stated that she brought her license to Keller Williams in Laplace, not in one of the parishes listed in the agreement. At the time of the hearing, she had no properties in the listed parishes but just had one closing in Orleans Parish the day before and another in Jefferson Parish. Lambert denied that she was trying to market in Jefferson Parish at that time, although she identified the photos as being located in Jefferson. Allen Leone, owner of the Keller Williams franchise in Laplace, testified that he had the |4rights to market in the parishes of St. James, St. John, and St. Charles, with the bulk of his business in Laplace. He denied that he competed with Century 21.

The trial court found that Lambert did enter into business within parishes listed in the non-compete clause. However, the court determined that the last sentence of that clause was overbroad and exceeded LSA-R.S. 23:921 and, thus, concluded that, the contract was not enforceable.

LSA-R.S. 23:921, in relevant part, states:

C. Any person, including a corporation and the individual shareholders of such corporation, who is employed as an agent, servant, or employee may agree with his employer to refrain from carrying on or engaging in a business similar to that of the employer and/or from soliciting customers of the employer within a specified parish or parishes, municipality or municipalities, or parts thereof, so long as the employer carries on a like business therein, not to exceed a period of two years from termination of employment. An independent contractor, whose work is performed pursuant to a written contract, may enter into an agreement to refrain from carrying on or engaging in a business similar to the business of the person with whom the independent contractor has contracted, on the same basis as if the independent contractor were an employee, for a period not to exceed two years from the date of the last work performed under the written contract.
D. For the purposes of Subsections B and C, a person who becomes employed by a competing business, regardless of whether or not that person is an owner or equity interest holder of that competing business, may be deemed to be carrying on or engaging in a business similar to that of the party having a contractual right to prevent that person from competing.

Louisiana’s strong public policy restricting non-competition agreements is based on an underlying state desire to prevent an individual from contractually depriving himself of the ability to support himself and consequently becoming a public burden. LSA-R.S. 23:921(C) is an exception to Louisiana public policy | r,against non-compete agreements and, as such, must be strictly construed. Generally, a party seeking the issuance of a preliminary injunction must show that he will suffer irreparable injury if the injunction does not issue and must show entitlement to the relief sought; this must be done by a prima facie showing that the party will prevail on the merits of the case. However, in the event an employee enters into an agreement with his employer not to compete, pursuant to LSA-R.S. 23:921, and fails to perform his obligation under such an agreement, the court shall order injunc-tive relief even without a showing of irreparable harm, upon proof by the employer of the employee’s breach of the non-compete agreement. Where the actions sought to be enjoined pursuant to a non-compete agreement do not fall within the exception found in LSA-R.S. 23:921(C) or where the non-compete agreement is found to be unenforceable for failure to conform to LSA-R.S. 23:921, the employer is unable to establish that it is entitled to the relief sought.

Generally, a trial court is granted wide discretion in deciding whether to grant or deny an injunction and its ruling will not be disturbed absent manifest error. On review, we find that the trial court was correct in determining that Lambert did enter into business in the parishes listed in the non-competition clause. Further, we agree that the last sentence of the non-compete clause is overbroad. In stating that “[t]his clause shall survive termination of this agreement,” it goes on to prohibit the independent contractor from engaging in any business directly or indirectly which competes with the broker. In our opinion, within the context of the agreement, that sentence appears to extend the permissible two-year period fallowed by law and is, thus, unenforceable. Under these circumstances, Berry was not entitled to an injunction.

For the foregoing reasons, the judgment is affirmed.

AFFIRMED.

      . H20 Hair, Inc. v. Marquette, 06-930 (La. App. 5 Cir.5/15/07), 960 So.2d 250 (La.App. 5 Cir.2007) (citing SWAT 24 Shreveport Bossier, Inc. v. Bond, 00-1695 (La.6/29/01), 808 So.2d 294).

      . 1120 Hair, Inc., supra.

      . Id.

      . H20 Hair, Inc., supra (citing Clear Channel Broadcasting, Inc. v. Brown, 04-0133 (La.App. 4 Cir. 3/30/05), 901 So.2d 553).

      . See, Limousine Livery, Ltd. v. A Airport Limousine Serv., L.L.C., 2007-1379 (La.App. 4 Cir. 3/12/08), 980 So.2d 780; also Wied v. TRCM, LLC, 30,106 (La.App.2d Cir.07/24/97), 698 So.2d 685.


source: Caselaw Access Project

license: Public Domain

text:
    Geoffrey HUGHES v. ENERGY & MARINE UNDERWRITERS, INC.
    No. 08-CA-801.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 25, 2009.
    Larry E. Demmons, Taggart Morton, L.L.C., New Orleans, Louisiana, for Plaintiff/Appellant.
    David L. Patron, Phelps Dunbar LLP, New Orleans, Louisiana, for Defendant/Appellee.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., MARION F. EDWARDS, and WALTER J. ROTHSCHILD.
   MARION F. EDWARDS, Judge.

12Plaintiff/appellant, Geoffrey Hughes (“Hughes”), appeals a judgment of the district court dismissing his lawsuit.

This is Hughes’ second appeal. In October 2006, he filed a Petition for Unpaid Wages, Penalties and Attorney’s Fees against Energy & Marine Underwriters, Inc. (“EMU”), requesting payment of a bonus due. In our previous opinion, we considered a judgment of the trial court granting EMU’s Exceptions of No Cause of Action and Unauthorized Use of Summary Proceedings. In granting the exceptions, the trial court gave Hughes fifteen days to amend his petition to assert viable claims and convert his suit to ordinary proceedings. This judgment was granted on May 1, 2007. In lieu of amending his suit, Hughes moved for a devolutive appeal to this Court. On March 11, 2008, we found that the judgment in question was not a final appealable judgment, dismissed the appeal, and remanded the case to the trial court. The Louisiana Supreme Court refused writs on August 29, 2008.

13While writs to the supreme court were pending, on March 18, 2008, EMU filed a Motion to Dismiss, averring that, inasmuch as Hughes had not amended his petition in accordance with the order of the trial court, his suit should be dismissed. The court granted judgment on June 11, 2008, dismissing Hughes’ case with prejudice.

We note a jurisdictional defect. Under LSA-C.C.P. art 2088, the jurisdiction of the trial court over all matters in the case reviewable under the appeal is divested, and that of the appellate court attaches or on the granting of the order of appeal in the case of a devolutive appeal. Thereafter, with certain exceptions, the trial court has jurisdiction in the case only over those matters not reviewable under the appeal but dismissing the case is not one of these. If an application for certiorari to the supreme court is timely filed, a judgment of the court of appeal becomes final and definitive when the supreme court denies the application for certiorari. LSA-C.C. P. art. 2166(E). The judgment on appeal dismissing Hughes’ case was rendered prior to the denial of writs by the Louisiana Supreme Court.

Until the denial of writs, the trial court was without jurisdiction to dismiss Hughes’ suit even though the initial appeal was ultimately found to have been improper for having been taken from a non-appealable interlocutory ruling. The judgment is set aside and the case is remanded to the trial court with instructions to allow Hughes fifteen days from the date this opinion becomes final within which to amend his petition.

JUDGMENT SET ASIDE; REMANDED WITH INSTRUCTIONS.

      . See our previous opinion, Hughes v. Energy & Marine Underwriters, Inc. 07-490 (La.App. 5 Cir. 3/11/08), 978 So.2d 566, writ denied, 2008-0957 (La.8/29/08), 989 So.2d 100.

        . Schnatz v. Schnatz, 501 So.2d 318 (La.App. 5 Cir. 1987), writ denied, 504 So.2d 877 (1987); Goodwin v. Tilley 2001-1280 (La.App. 3 Cir. 10/31/01), 799 So.2d 768; Halley v. Guerriero, 577 So.2d 781 (La.App. 2 Cir. 1991). See also, Barnes v. L.M. Massey, Inc., 93-1080 (La.App. 1 Cir. 5/20/94), 637 So.2d 799, writ denied, 94-2279 (La. 12/9/94), 647 So.2d 1107.


author: PAUL A. BONIN, Judge.

text:
    Rebecca PATE, Sharon A. Clark and Reva Morgan Individually and On Behalf of her Minor Child Renia Gant as the Natural Tutrix v. REGIONAL TRANSIT AUTHORITY, XYZ Insurance Company and Transit Management of Southeast Louisiana.
    No. 2008-CA-1147.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 11, 2009.

      Pius A. Obioha, Law Offices of Pius A. Obioha & Associates, LLC, New Orleans, LA, for Rebecca Pate, Sharon Clark, Reva Morgan individually, and on Behalf of their Minor Child, Renia Gant, as the Natural Tutrix.
    Veronica E. Henry, Wilkerson & Henry, LLC, New Orleans, LA, for Regional Transit Authority and Transit Management of Southeast Louisiana, Inc.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge PATRICIA RIVET MURRAY, Judge PAUL A. BONIN.
   PAUL A. BONIN, Judge.

| j Rebecca Pate claims that she was injured while a passenger on an RTA bus on February 15, 2002. On August 1, 2005, she filed this lawsuit against the RTA. The RTA filed an exception of prescription, which the district court granted on December 26, 2007. For the reasons which follow, we amend the trial court’s judgment and, as amended, affirmed.

History of the Case

This is the second suit filed by Ms. Pate against the RTA. The first was timely filed on May 23, 2002. The suit was dismissed without prejudice on May 24, 2005. The basis for the dismissal without prejudice was that Ms. Pate had failed to comply with the requirement of La. R.S. 13:5107(D), that she request service of citation within ninety days of filing her suit. Since the court had found that she had not made a timely request of the clerk, the first suit was dismissed without prejudice, as provided by La. C.C.P. art. 1672(C). The | ¿judgment of dismissal in the first suit was not appealed. It is now a final, non-appealable judgment. La. C.C.P. arts. 2082, 2083(A), and 2087(A).

The second petition for damages is virtually identical to the first. The RTA excepted on the grounds that Ms. Pate’s claim was prescribed. La. C.C.P. art. 927(A)(1). The prescriptive period for Ms. Pate’s action is one year from the day the injury or damage is sustained. La. C.C. art. 3492. The one year would have expired on Tuesday, February 18, 2003.

RTA’s Invocation of La. R.S. 13:5107 (D)(3)

La. C.C. art. 3462, which is generally applied, provides the interruption of prescription in specified circumstances and reads:

Prescription is interrupted when the owner commences action against the possessor, or when the obligee commences action against the obligor, in a court of competent jurisdiction and venue. If action is commenced in an incompetent court, or in an improper venue, prescription is interrupted only as to a defendant served by process within the prescriptive period.

La. C.C. art. 3463 goes on to provide:

An interruption of prescription resulting from the filing of a suit in a competent court and in the proper venue or from service of process within the prescriptive period continues as long as the suit is pending. Interruption is considered never to have occurred if the plaintiff abandons, voluntarily dismisses the action at any time either before the defendant has made any appearance of record or thereafter, or fails to prosecute the suit at trial.

If the general rule applied, Ms. Pate’s first lawsuit which was timely filed in a competent court and proper venue would have interrupted prescription until it was dismissed on May 24, 2005. “If prescription is interrupted, the time that has run is 13not counted. Prescription commences to run anew from the last day of interruption.” La. C.C. art. 3466. The one year prescriptive period would have begun anew and her second suit would have been timely, as it was filed within one year of that date.

However, the RTA again invokes the provisions of La. R.S. 13:5107(D):

(1) In all suits in which the state, a state agency, or political subdivision, or any officer or employee thereof is named as a party, service of citation shall be requested within ninety days of the commencement of the action or the filing of a supplemental or amended petition which initially names the state, a state agency, or political subdivision or any officer or employee thereof as a party. This requirement may be expressly waived by the defendant in such action by any written waiver.
(2)If service is not requested by the party filing the action within that period, the action shall be dismissed without prejudice, after contradictory motion as provided in Code of Civil Procedure Article 1672(C), as to the state, state agency, or political subdivision, or any officer or employee thereof, who has not been served.
(3)When the state, a state agency, or a political subdivision, or any officer or employee thereof, is dismissed as a party pursuant to this Section, the filing of the action, even against other defendants, shall not interrupt or suspend the running of prescription as to the state, state agency, or political subdivision, or any officer or employee thereof; however, the effect of interruption if prescription as to other persons shall continue.

14(emphasis supplied)

The RTA is a “political subdivision.” La. R.S. 48:1654(A) provides in part:

There is hereby created the Regional Transit Authority, subject to the conditions hereinafter set forth, which shall be a body politic and corporate and a political subdivision of the state of Louisiana ....

Therefore, the time that Ms. Pate’s first lawsuit was pending from its filing to its dismissal did not interrupt or suspend the running of prescription. La. C.C. arts. 3462 and 3463 are rendered inapplicable to a situation in which service was not requested on “the state, a state agency, or a political subdivision, or any officer or employee thereof’ within ninety days of the filing of an otherwise timely lawsuit in a competent court and a proper venue.

The Louisiana Supreme Court impliedly recognized this result in Bordelon v. Medical Center of Baton Rouge, 03-0202, p. 11 (La.10/21/03), 871 So.2d 1075, 1084. Bor-delon resolved the question whether La. C.C.P. art. 1672(C) itself operated to render La. C.C. arts. 3462 and 3463 inapplicable to suits dismissed without prejudice when the defendant was a non-state party. Bordelon concluded that “unless that un-served party is the state, that lawsuit, although not timely | .¡served, interrupts prescription, unless the court finds that failure to request service was due to plaintiffs bad faith.” Id.

Consequently, Ms. Pate was required to file her second suit not later than February 18, 2003 and to request service on the RTA within ninety days of filing of the lawsuit. Since she failed to file this second lawsuit by that date, the trial court’s granting of the exception of prescription is correct.

Ms. Pate’s Claim of Nullity

Ms. Pate seeks to convert her appeal from the judgment granting the exception of prescription into an action for nullity. She argues that the RTA misled the trial court about whether she had in fact timely requested service on the RTA. Essentially, Ms. Pate wishes that we would revisit her first petition to ascertain whether she in fact timely requested service. She urges us to apply La. C.C.P. art. 2001 et seq. regarding actions for nullity. This we cannot do.

First, Ms. Pate has not even filed an action for nullity. The lawsuit sub judice is an action for damages. Second, we can discern no basis on which Ms. Pate was prevented from presenting evidence to the trial court at the time the RTA first moved for a dismissal on the grounds that she had not timely requested service on the RTA and, being unsuccessful in the trial court, from timely appealing the judgment of dismissal without prejudice. Third, since we have the first petition in the record before us as an exhibit to the RTA’s exception, we are able to observe |fithat while Ms. Pate may have timely requested service on the RTA, her request was not proper because she failed to identify any person or entity as the agent for service of process, and, therefore, she certainly did not request service upon the proper agent. Johnson v. University Medical Center in Lafayette, 07-1683, pp. 2-3 (La.11/21/07), 968 So.2d 724, 725. The Louisiana Supreme Court in Tranchant v. State, 08-0978, p. 7 (La.01/21/09), 5 So.3d 832, very recently reiterated the Johnson requirement:

Service upon the defendant pursuant to La. R.S. 13:5107(D)(1) requires an accurate request of service upon the proper agent. [Johnson citation omitted] For service to be requested and effectuated, the clerk must be provided with the correct name and address of those persons to be served. In our view, the plain language of La. R.S. 13:5107(D)(1), without more, requires that the clerk receive this information before it can be “requested.” (emphasis added)

Ms. Pate was too late in requesting service on the RTA in the first suit and she is too late in seeking a review of the merits of the dismissal occasioned by that failure. Her cause of action for inhaling dangerous chemical fumes is prescribed.

The Trial Court’s Judgment

The trial court’s judgment simply granted the exception of prescription. When the exception of prescription is granted, the action “shall be dismissed.” La. C.C.P. art. 934. A lawsuit dismissed because it is prescribed is over and the dismissal ought to be with prejudice. Ubosi v. Sowela Technical Institute, 584 So.2d 340 (La.App. 3rd Cir.1991).

Decree

|7For the foregoing reasons, we amend the judgment to set forth that the plaintiffs’ lawsuit is prescribed and, accordingly, it is dismissed with prejudice at their costs.

JUDGMENT AMENDED AND, AS AMENDED, AFFIRMED.

      . For simplicity we refer to all the plaintiffs as Rebecca Pate or Ms. Pate. The other plaintiffs are Sharon Clark and Reva Morgan, individually and on behalf of her minor child, Renia Gant.

      . For simplicity we refer to the Regional Transit Authority as RTA, and include in our reference the Transit Management of Southeast Louisiana, or TMSEL, an entity which participates in the operation of the RTA buses in New Orleans.

      .That filing bore # 2002-8189 on the docket of the Civil District Court for the Parish of Orleans.

      . February 15, 2003 was a Saturday and February 17, 2003 was a legal holiday. See La. C.C. art. 3454.

      . At least one judge of this court has questioned the constitutionality of La. R.S. 13:5107 in that it seems to place "the state and its employees in a better position in litigation matters”. See Tranchant v. State, 07-1273, p. 2-3 (La.App. 4 Cir. 3/13/08), 978 So.2d 1174, 1180 (Tobias, J., concurring). Neither in Tranchant nor in this case did the parties raise the constitutionality of the statute and the issue was never reached. Tran-chant was recently overruled by the Supreme Court. 08-0978 (La. 1/21/09), 5 So.3d 832, holding that the plaintiffs did not timely request service on the state defendants within ninety days of filing suit.

      . See Johnson v. Regional Transit Authority, 00-2647, p. 2 (La.App. 4 Cir. 4/18/01), 785 So.2d 1015, 1016 with a caveat that its language which seemingly requires service to be effected on a state defendant within 90 days has never been followed by any other court or panel of this court and the statement, it seems, is unsupported by the language of the statute. On the issue of the distinction between “requesting’’ service and “effecting” service see Lockett v. Reese, 04-0328 (La.App. 4 Cir. 4/28/04), 874 So.2d 913.

      . The correlative statute for TMSEL is La. R.S. 13:5102(B)(2) which provides in pertinent part: “B. As the term is used in this Part, ‘political subdivision’ means: ... (2) Any private entity, such as Transit Management of Southeast Louisiana, Inc. (TMSEL), including its employees, which on behalf of a public transit authority was created as a result of Section 13(C) of the Urban Mass Transportation Act, ...”

      . There is no argument that the prescriptive period in this case was suspended. Suspension of prescription is governed by La. C.C. art. 3467 et seq. La. C.C. art. 3472 specifically provides that: "The period of suspension is not counted toward accrual of prescription. Prescription commences to run again upon the termination of the period of the period of suspension.”

      . See Thomas v. Louisiana Dept. of Public Safety and Corrections, 02-0897 (La.App. 1 Cir. 3/28/03), 848 So.2d 635, and Borrello v. City of Kenner, 99-420 (La.App. 5 Cir. 11/30/99), 750 So.2d 230.

      . The consequences of "bad faith" failure to request timely service, which is governed by La. R.S. 9:5801, are not pertinent to this case.

      . When a petition reveals on its face that prescription has run, the plaintiff bears the burden of establishing that the claim has not prescribed. LeBreton v. Rabito, 97-2221 (La.7/8/98), 714 So.2d 1226, 1228. Ms. Pate has pointed to no other basis than her pen-dency of her first lawsuit to avoid the consequences of the liberative prescription of one year. There are, for example, no other non-state defendants alleged by Ms. Pate to be jointly liable with the RTA. See Cali v. Cory, 04-1227 (La.App. 4 Cir. 11/3/04), 886 So.2d 648; La. C.C. art. 2324(C).

      . In her original brief at p. 2 Ms. Pate writes: "The judgment of the Court rendered on December 26, 2007, was based solely equally on technicality and misleading information provided to the trial court by the [RTA].”

      . The request in the first petition was typed and read: "PLEASE SERVE: Regional Transit Authority, 6700 Plaza Drive, New Orleans, LA 70127”. Below that typewritten request is the handwritten request: "Please reissue service on the defendants. Pius Obioha 2/28/05”.

      . Of course, there are exceptions, such as when the Supreme Court remanded a matter to allow a client to plead the unconstitutionality of a peremptive statute. Reeder v. North, 97-0239 (La.10/21/97), 701 So.2d 1291.


author: TERRI F. LOVE, Judge. McKAY, J., concurs.

text:
    GOOD ACRES, INCORPORATED v. Robert J. JEMISON, II.
    No. 2008-CA-0976.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 11, 2009.

      Leonard M. Berins, Gerald Wasserman, Gerald Wasserman, LLC, Metairie, LA, for Good Acres, Incorporated.
    Charles L. Rice, Jr., Jonathan R. Bourg, Barrasso Usdin Kupperman Freeman & Sarver, L.L.C., New Orleans, LA, for Robert J. Jemison, II.
    (Court composed of Judge JAMES F. McKAY, III, Judge DENNIS R. BAGNERIS, SR., Judge TERRI F. LOVE).
   TERRI F. LOVE, Judge.

11 This appeal arises from a suit on a promissory note. The promisor of the note filed a motion for summary judgment alleging that the note prescribed, which the trial court granted. For the reasons that follow, we find that genuine issues of material fact exist as to whether prescription on the note was interrupted and reverse.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

On May 7, 1998, Robert Jemison, II (“Mr. Jemison”) signed a promissory note (“Note”) for $140,000 to Good Acres, Incorporated (“Good Acres”), which was par-aphed to the credit sale of 2442 Dryades Street (“Property”). Mr. Jemison took title to the property in his own name, but the Property was intended for his corporation, On Call Nursing Agency & Association of New Orleans, Incorporated (“On Call”). Denise Holden (“Ms. Holden”), an executive for On Call, signed as a witness on the credit sale.

Upon conclusion of the sale, Robert Lucien, Sr. (“Mr. Lucien”), the president of Good Acres, and Mr. Jemison discussed future communications regarding the Property; whereby, Mr. Jemison allegedly stated that Ms. Holden would handle all payments and other issues regarding the Property. Additionally, [2Mr. Lucien alleges that Ms. Holden gave him her business card.

The Note required twenty-three monthly payments with a balloon payment of the balance due two years after the act of sale and a maturity date of May 1, 2000. All payments were made through 1999 from an On Call account. Thereafter, the last seven payments were made from an account possessed by Ms. Holden. In 2002, Mr. Lucien wrote a demand letter to Mr. Jemison; however, Ms. Holden responded. The last payment was received around the beginning of October, 2003. Mr. Lucien alleges that he was unable to communicate with Mr. Jemison, but was always redirected to Ms. Holden.

Good Acres filed suit on promissory note and recognition of mortgage on August 21, 2006, seeking the unpaid balance on the Note and “recognition of its vendor’s lien and mortgage” upon the Property. Good Acres filed a supplemental and amended petition requesting reimbursement for $32,217.68, which was paid at a tax penalty sale to redeem the Property and preserve its rights against the Property. Mr. Jemison then filed a motion for summary judgment alleging that the Note had prescribed. The trial court agreed and granted Mr. Jemison’s motion for summary judgment. This appeal followed.

STANDARD OF RE VIE W

Appellate courts review summary judgments using the de novo standard of review. Weintraub v. State Farm Fire and Cas. Co., 08-0351, p. 2 (La.App. 4 Cir. 10/29/08), 996 So.2d 1195, 1196. Summary judgments are favored to “secure the just, speedy, and inexpensive determination of actions.” Collins v. State Farm Ins. Co., 08-0790, p. 8 (La.App. 4 Cir. 10/14/08), 997 So.2d 51, 55.

A motion for summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together Rwith 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). The mover bears the burden of proof. La. C.C.P. art. 966(C)(2). “[I]f the movant will not bear the burden of proof at trial,” he must “point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense.” La. C.C.P. art. 966(C)(2). Once the plaintiff/adverse party “fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.” La. C.C.P. art. 966(C)(2).

The Louisiana Supreme Court held that a genuine issue is “an issue in which reasonable persons could disagree.” King v. Parish Nat’l Bank, 04-0337 (La.10/19/04), 885 So.2d 540, 546. Additionally, the Court stated that a material fact is “one in which ‘its existence or nonexistence may be essential to plaintiffs cause of action under the applicable theory of recovery.’ ” Id., quoting Jones v. Estate of Santiago, 03-1424, p. 6 (La.4/14/04), 870 So.2d 1002, 1006.

PRESCRIPTION

Good Acres asserts that the trial court erred in finding that the Note had prescribed because it avers that Ms. Holden’s payments interrupted prescription.

An action on a promissory note is “subject to a liberative prescription of five years,” which “commences to run from the day payment is exigible.” La. C.C. art. 3498. “[A]n action to enforce the obligation of a party to pay a note payable at a definite time must be commenced within five years after the due date or dates stated in the note or, if a due date is accelerated, within five years after the accelerated due date.” La. R.S. 10:3-118(a).

“Prescription is interrupted when one acknowledges the right of the person [ .¡against whom he had commenced to prescribe.” La. C.C. art. 3464. “Acknowledgment sufficient to interrupt prescription may be made verbally, in writing, by partial payment, by payment of interest or by pledge, or in other ways,” like being “inferred from the facts and circumstances.” Lake Providence Equip. Co. v. Tallulah Prod. Credit Ass’n, 257 La. 104, 241 So.2d 506, 509 (1970). Acknowledgment can also be made by an authorized agent of the debtor. Gibson Greeting Cards, Inc. v. Cabibi, 237 So.2d 897, 899 (La.App. 4th 1970).

Payment on a debt represents acknowledgment. Ford Motor Credit Co. v. Brown, 32,995, p. 3 (La.App. 2 Cir. 4/5/00), 756 So.2d 654, 657. However, “[a] tacit acknowledgment occurs when a debtor performs acts of reparation or indemnity, makes an unconditional offer or payment, or lulls the creditor into believing he will not contest liability.” Lima v. Schmidt, 595 So.2d 624, 684 (La.1992).

The Note became exigible on May 1, 2000. Therefore, as the case sub judice was filed on August 21, 2006, the Note was prescribed on its face. However, Good Acres asserts that prescription on the Note was interrupted by Ms. Holden’s payments. An acknowledgment of the debt may be inferred from the facts and circumstances of a case and can be made by an agent of the debtor. Ms. Holden possessed the authority to act on behalf of On Call regarding the’ Property, but the issue is whether she had continuing authority once the Note was in arrears and if Mr. Jemison acquiesced to the benefit of her payments.

Mr. Lucien’s affidavit indicates that Mr. Jemison informed him at the act of sale that all matters regarding the Property would be handled by Ms. Holden. Mr. Lucien also asserts that all communication involving the Property was rerouted to Ms. Holden and that he was never allowed to speak with Mr. Jemison about the |sNote or payments. Instead, Mr. Lucien spoke with Ms. Holden or left messages for Mr. Jemison, which were returned by Ms. Holden.

Once the Note was in arrears, Mr. Lucien sent a demand letter to Mr. Jemison’s home address in July, 2002. The demand letter garnered no response from Mr. Je-mison. However, Ms. Holden wrote Mr. Lucien a letter in August, 2002, which referred to Mr. Lucien’s previous demand letter to Mr. Jemison. In the letter, Ms. Holden discussed her desire to open a child care facility on the Property and her interest in “redoing” the mortgage on the Property to substitute her name for Mr. Jemison’s, assuming all parties agreed. Subsequently, Ms. Holden began making payments to Mr. Lucien through October, 2003, from her own account. Mr. Jemison contends that the payments made by Ms. Holden were insufficient to interrupt prescription and the last payment made by him was in September, 1999.

Mr. Jemison alleges that Ms. Holden was acting in her own interest, which he stated is shown by the payments she made from her account. However, Mr. Jemison began using the Property again following Hurricane Katrina without reimbursement to Ms. Holden. Ms. Holden testified that she did not attempt to collect that money from Mr. Jemison. Mr. Jemison admitted that he was aware of Ms. Holden’s payments to Good Acres, to which he did not object.

The conflicting affidavits reflect, at minimum, that an issue exists as to whether Ms. Holden was authorized to conduct business for Mr. Jemison in regards to the Property and the Note after Mr. Lucien mailed the demand letter. Ms. Holden stated in her deposition that Mr. Jemison gave her the letter because he told her to deal with the Property. Thus, if Ms. Holden was authorized to handle all matters regarding the Property initially, the act of giving the demand letter to |fiMs. Holden, her payments on the Note, coupled with his knowledge of and lack of objection to the payments, could constitute tacit acknowledgment. Because reasonable minds could disagree on an essential element of Good Acres’ claim, the alleged tacit acknowledgment, we find that genuine issues of material fact exist. Good Acres might not be able to prevail at trial, but, as this is a motion for summary judgment, a genuine issue of material fact connotes that the matter should proceed in the trial court.

DECREE

For the above mentioned reasons, we find that genuine issues of material fact as to whether the Note prescribed and reverse.

REVERSED.

McKAY, J., concurs.

McKAY, J., concurs.

Iil agree with the majority that genuine issues of material fact exist in this case and that summary judgment was not appropriate.

      . The record reflects that the Note was lost and is evidenced by the notations in the credit sale.


author: JAMES F. McKAY III, Judge.

text:
    R.L. LUCIEN TILE COMPANY, INC., For Sandy CAGE v. AMERICAN SECURITY INSURANCE COMPANY.
    No. 2008-CA-1190.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 11, 2009.
    Rehearing Denied April 80, 2009.

      Jack H. Tobias, Law Offices of Jack H. Tobias, P.L.C., New Orleans, Louisiana, for Plaintiff/Appellant.
    Gordon P. Serou, Jr., Julia P. McLellan, Law Offices of Gordon P. Serou, Jr., L.L.C., New Orleans, Louisiana, for Defendant/Appellee.
    (Court composed of Judge JAMES F. McKAY III, Judge DAVID S. GORBATY, Judge PAUL A. BONIN).
   JAMES F. McKAY III, Judge.

IjR.L. Lucien Tile Company, Inc., for Sandy Cage, appeals the judgment of the trial court granting American Security Insurance Company’s motion for summary judgement. For the reasons below, we affirm the trial court’s judgment in favor of American Security Insurance Company.

FACTS PROCEDURAL HISTORY

On March 31, 2004, R.L. Lucien Tile Company, Inc. (hereafter, “Lucien Tile”) purchased the property located at 8838 Green Street from Joshua and Sandy Cage, by quitclaim deed, for the sum of one hundred dollars ($100.00). Lucien Tile did not refinance or assume the Cage’s mortgage. Instead, Lucien Tile paid the Cage’s monthly note on the existing mortgage with EMC Mortgage Corporation (hereafter, “EMC”). At all relevant times in the instant matter, EMC held a mortgage on the insured property and American Security Insurance Company (hereafter, “ASIC”) maintained the policy of hazard insurance coverage, specifically for damages caused by wind and rain. The named insured under this |2policy is EMC. The EMC borrowers, Joshua and Sandy Cage, are additional insureds.

On November 16, 2005, ASIC received notice that the property at 8833 Green Street had sustained damage resulting from Hurricane Katrina. The notice in-dentified the claimant as Sandy Cage, the named insured as EMC, and the additional insureds as Joshua and Sandy Cage. On December 21, 2005, ASIC adjusted the claim in response to the notification of loss. ASIC initially paid policy benefits in the amount of $13,922.91 to EMC, Joshua and Sandy Cage. ASIC re-inspected the property in 2007 and paid EMC, Joshua and Sandy Cage an additional $26,567.15, for a total payment of $40,490.06. Based on the record, it appears that none of the insurance proceeds were ever distributed to Lucien Tile.

On August 28, 2006, Lucien Tile filed its original petition for damages against ASIC. In its petition, it claimed rights to policy benefits under the insurance policy which ASIC had issued to EMC and the Cages. Lucien Tile also asserted its rights to penalties and attorneys fees based on a claim of bad faith pursuant to La. RS. 22:1220 and 22:658.

ASIC answered the petition asserting that the petitioner, Lucien Tile, was a stranger to the contract of insurance and averred that the policy was the best evidence of its contents. Thereafter, ASIC moved for a summary judgment, arguing that Lucien Tile was neither an insured nor an additional insured under the policy. ASIC argued that the policy contained an anti-assignment clause and that |sLucien Tile had no valid assignment of the Cage’s rights against ASIC. Consequently, Lucien Tile had no standing to bring the action.

On May 9, 2008, the district court, after reviewing the evidence including oral argument, granted ASIC’s motion for summary judgment. The judgment was signed on March 27, 2008; the court dismissed Lucien Tile’s claims without prejudice. It is from this judgment that Lucien The filed this devolutive appeal.

STANDARD OF REVIEW

A motion for summary judgment is a procedural device used when there is no genuine issue of material fact for all or part of the relief prayed for by a litigant. Duncan v. U.S.A.A. Ins. Co., 2006-363 p. 3 (La.11/29/06), 950 So.2d 544, 546, See La. C.C.P. art. 966. A summary judgment is reviewed on appeal de novo, with the appellate court using the same criteria that govern the trial court’s determination of whether summary judgment is appropriate; i.e. whether there is any genuine issue of material fact, and whether the mov-ant is entitled to judgment as a matter of law. Samaha v. Rau, 2007-1726 p. 1-2 (La.2/26/08), 977 So.2d 880, 882-883; Wright v. Louisiana Power & Light, 2006-1181 p. 17 (La.3/9/07), 951 So.2d 1058, 1070; King v. Parish National Bank, 2004-0337 p. 7 (La.10/19/04), 885 So.2d 540, 545; Jones v. Estate of Santiago, 2003-1424 p. 5 (La.4/14/04), 870 So.2d 1002, 1006.

ASSIGNMENT OF ERROR

In Lucien Tile’s sole assignment of error it asserts that the trial court erred in granting the ASIC’s motion for summary judgment. Lucien Tile predicates its 14argument upon the assumption that it was an assignee of the ASIC insurance policy on the Green Street property or in the alternative a subrogate to the policy pursuant to two documents referencing assignments and transfer of all rights and claims from the Cages to Lucien Tile.

On November 2, 2005, the same day that the “Quitclaim Deed” was executed, the Cages executed a document entitled, “ASSIGNMENT AND TRANSFER OF ALL RIGHTS AND CLAIMS,” which was signed by the Cages, witnessed and notarized. The pertinent language, in this assignment and transfer, which the Cages assigned to Lucien Tile is as follows:

“Be it know that we Joshua and Sandy Cage do hereby for ourselves and our heirs, successors, and others transferees, transfer, assign and convey all rights, claims, chose [sic] of actions whatsoever we may have against the company, officers and employees of EMC Mortgage Corporation, including any of its assigns, transferees arising out of the mortgage we executed in favor of EMC Mortgage Corporation to R.L. Lucien Tile Company. This assignment and transfer includes all claims whether legal or equitable including those arising out of all state and federal laws applicable, including all that may arise out of any Fair Debt Collection Act, Consumer Protection Act, and Unfair trade Practices Act we are expressly assigning all rights, claims and actions we may have pertaining to the mortgages themselves, the collection of those mortgages any attempt to foreclose on those mortgages, or those arising out of the “Forbearance” of any such foreclosure.”
“Included under this assignment and transfer to R.L. Lucien tile Company, are all damages we may recover for general or special damages, punitive or exemplary damages, attorneys fees, cost or expenses, interest or any other equitable, legal or general relief we may be entitled to or granted.”
“R.L. Lucien Tile Company is entitled to act in our stead to file suit, litigate, settle or otherwise dispose of our claims or actions, as if they were us.”

We note, that this assignment and transfer of all rights and claims did not purport to specifically assign any rights that the Cages may have had against |nASIC to Lucien Tile. Nor does the language of this document assign any interest in the ASIC insurance policy to Lucien Tile. This document indicates that the Cages were assigning to Lucien Tile a claim arising under fair debt collection practice law pursuant to and pertinent to the EMC mortgage. In fact, Lucien Tile filed a claim against EMC in the Civil District Court for the Parish of Orleans in Case number 06-1921, Division “I”. In this petition for damages Lucien Tile asserted its rights against EMC pursuant to the above detailed assignment and transfer document. The Cages had executed a “Terms and Forbearance” document with EMC in connection with the mortgage. In this document the Cages were required to make a balloon payment. Lucien Tile assisted the Cages in this payment which precipitated the quitclaim deed and assignment that transferred the Cage’s remaining interest in the Green Street property to Lucien Tile on March 31, 2004, and assigned Lucien Tile the right to pursue all claims against EMC in return for certain consideration in addition to Lucien Tile paying off the loan. The gist of the lawsuit was an attempt to have a judicial review of the interest on the loan in accordance with the terms of forbearance document. The details and outcome of this matter is not in the record before this Court.

At the hearing on the motion for summary judgment, Lucien Tile produced a second document signed by the Cages on March 31, 2008, styled “Supplement to our November 2, 2005 Assignment and Transfer of All Rights and Claims.” The document purports, in relevant parts, that “in addition to and included under” the previous assignment, are “all claims ... against anyone ... arising out of the ownership of or related to our previous ownership of ... 8833 Green Street.”

Relying on these two documents, Lucien Tile asserts that it was entitled to the insurance proceeds based on theories of assignments of rights and subrogation. | (We disagree and find that Lucien Tile’s reliance on these two documents is unsupportable and inapplicable to the case sub judice.

Conversely, ASIC argues that Lucien Tile is neither an insured nor an assignee of the applicable insurance policy and consequently is a stranger to the policy. As such, Lucien Tile has no right of action against ASIC. In support of its motion for summary judgment ASIC offered into evidence, as an exhibit, the insurance policy. In the policy, EMC is the named insured and Joshua and Sandy Cage are the additional insureds. No where in the record does Lucien Tile ever appear on any insurance document relevant to this matter. Most importantly, the policy of insurance, which EMC procured for Joshua and Sandy Cage, states that the “Assignments of this policy shall not be valid unless we give our written consent.”

An insurance policy is a contract between the parties and should be construed by using the general rules of interpretation of contracts set forth in the Civil Code. Louisiana Ins. Guar. Ass’n v. Interstate Fire & Cas. Co., 93-0911 (La.1/14/94), 630 So.2d 759. The judicial responsibility in interpreting insurance contracts is to determine the parties’ common intent. La. C.C. art.2045. An insurance policy should not be interpreted in an unreasonable or a strained manner so as to enlarge or to restrict its provisions beyond what is reasonably contemplated by its terms or so as to achieve an absurd conclusion. Louisiana Ins. Guar. Ass’n, 630 So.2d at 763. Absent a conflict with statutory provisions or public policy, insurers, like other individuals, are entitled to limit their liability and to impose and to enforce reasonable conditions upon the policy obligations they contractually assume. Id. Yet, if the policy wording at issue is clear and unambiguously expresses the parties’ intent, the insurance contract must be |7enforced as written. La. C.C. art.2046. When the language of an insurance policy is clear, courts lack the authority to change or alter its terms under the guise of interpretation. Louisiana Ins. Guar. Ass’n, 630 So.2d at 764.

The provision in paragraph twenty-two (22) of the policy clearly and unambiguously prohibits the insured from assigning the policy without ASIC’s written consent. Therefore, absent a valid assignment of rights to which the insurer, ASIC, consented, Lucien Tile has no standing to sue. In view of the policy in evidence, the trial court was correct in refusing to enforce Lucien Tile’s claims to the proceeds of the insurance policy by granting ASIC’s motion for summary judgment.

Additionally, Lucien Tile makes a claim of bad faith against ASIC, asserting a right to recover costs and attorney fees. Louisiana law allows an insured to recover statutory penalties when an insurance company fails to timely pay a claim after receiving adequate proof of loss when the failure is arbitrary, capricious, or in bad faith. La. R.S. 22:658 and La. R.S. 22:1220. Specifically, under La. R.S. 22:658(B) and La. R.S. 22:1220(B)(5), an insured may recover statutory penalties when the insurer’s failure to pay is “arbitrary, capricious, or without probable cause.” Because these two statutes are penal in nature they must be strictly construed. See Reed v. State Farm Mut. Auto Ins. Co., 2003-0107, pps. 13, 14, 15 (La.10/21/03), 857 So.2d 1012, pps. 1021, 1022, 1023.

As noted above, strictly construing the statutory provisions, Lucien Tile is not an insured under the insurance policy and therefore has no standing to make this claim of bad faith. There is no merit to this claim.

|sFor the above and foregoing reasons, we affirm the judgment of the trial court.

AFFIRMED.

      . A quitclaim deed in common law is an assignment of rights without warranty in civil law. La. C.C. Art. 2502.

      . The Cages, as a requirement of the mortgage with EMC, maintained insurance coverage commonly called a forced place "Residential Property Policy.”

      . In this appeal the appellee, ASIC, raises the peremptory exceptions of no right of action and prescription. As we have affirmed the granting of the summary judgment against the appellant, Lucien Tile, we need not address these exceptions.


author: PATRICIA RIVET MURRAY, Judge.

text:
    Kenneth SAAVEDRA v. DEALMAKER DEVELOPMENTS, LLC, Darren Zuppardo, Jerry L. Wallace, Jerry Wallace Developments, LLLP, Jerry Wallace Companies, LLLP, Jerry Wallace Dealmakers, LLC, Wallacetown Land Company, LLLP, Jerry L. Wallace Limited Partnership and Dealmakers Square, LLC.
    No. 2008-CA-1239.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 18, 2009.

      Stephen M. Wiles, New Orleans, LA, for Plaintiff/Appellee.
    Stephen K. Conroy, Tom D. Snyder, Rebecca E. Fenton, Christine W. Marks, Conroy Law Firm, PLC, Metairie, LA, for Defendants/Appellants.
    Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge PATRICIA RIVET MURRAY, and Judge PAUL A. BONIN.
   PATRICIA RIVET MURRAY, Judge.

|, This is a suit arising out of an agreement to purchase property. The buyer, Kenneth Saavedra, brought this suit against the seller, Jerry Wallace, and seven other defendants. In response, Mr. Wallace and five of the other defendants (hereinafter referred to as the “Wallace Defendants”) filed exceptions of prematurity and lack of subject matter jurisdiction based on an arbitration provision contained in the purchase agreement. From the trial court’s judgment denying the exceptions, the Wallace Defendants appeal. For the reasons that follow, we convert the appeal to an application for supervisory writ, reverse the trial court’s ruling denying the exception of prematurity, affirm the trial court’s ruling denying the exception of lack of subject matter jurisdiction, and remand.

FACTUAL AND PROCEDURAL BACKGROUND

On January 2, 2006, Mr. Saavedra, a Louisiana resident, and Mr. Wallace, a Florida resident, entered into a purchase agreement to transfer title to property located in Texas. The property was part of a planned subdivision that Mr. Wallace |2was developing. Pursuant to that agreement, Mr. Saavedra agreed to pay Mr. Wallace $55,000 for the property. Although Mr. Saavedra paid the purchase price, Mr. Wallace never transferred title to the property to him because development of the planned subdivision became impracticable. According to the petition, in a document dated December 18, 2006, executed by Rodney Bell, President of Jerry Wallace Developments, L.L.L.P., one of the named defendants, the defendants promised that a planned bungalow in Georgia would be sold and that the proceeds would be used to compensate Mr. Saavedra for the funds owed to him. The petition further alleges that no funds were received from the promised Georgia sale and that on March 9, 2007, Mr. Saavedra executed a refund request seeking a refund of his $55,000 purchase price. Despite amicable demand, Mr. Wallace failed to refund the purchase price to Mr. Saave-dra.

On October 4, 2007, Mr. Saavedra filed this suit against, among others, the Wallace Defendants. In his petition, Mr. Saavedra asserted the following five causes of action: breach of contract for failure of cause, fraud, intentional misrepresentation, conversion, and violation of Louisiana Unfair Trade Practices Act.

In response, the Wallace Defendants filed exceptions of prematurity, lack of subject matter jurisdiction, vagueness, and no cause of action. The exceptions of prematurity and lack of subject matter jurisdiction were based on an arbitration provision contained in the January 2, 2006 purchase agreement, which provided:

| ^Arbitration: In the event a dispute or an issue of any nature develops between Buyer and Seller, Buyer shall give Seller written notice of the dispute or issue and Seller shall then have 180 days to resolve the matter if it can be resolved. If Buyer is not content with the outcome after this 180 day period then the Buyer must submit any and all claims, issues or disputes of any nature arising out of this contract in anyway, to include claims under tort law, contract law, statutory law, or common law to binding in [ (sic) ] arbitration with Texas Arbitration and Mediation Services of El Paso, Texas, and shall waive any and all rights to trial by jury or judge.

Although the trial court initially sustained the exceptions and dismissed the suit, it granted Mr. Saavedra’s motion for new trial and set the Wallace Defendants’ exceptions for rehearing. On rehearing, the trial court overruled the exceptions. The instant appeal followed.

APPELLATE JURISDICTION

The initial issue we must address is whether this court has jurisdiction to decide this appeal from the trial court’s ruling denying the exceptions of prematurity and lack of subject matter jurisdiction based on the arbitration provision. This issue turns on whether the trial court’s judgment overruling these exceptions is an appealable judgment. The trial court’s ruling denying these exceptions is an interlocutory judgment because it “does not determine the merits but only preliminary matters in the course of the action.” La. C.C.P. art. 1841. Louisiana Code of Civil Procedure Article 2088 governs the ap-pealability of interlocutory judgments.

Article 2083 was amended by Act 205 of 2005 (effective January 1, 2006) to delete the provision allowing an appeal “from an interlocutory judgment which may cause irreparable injury.” As amended, Article 2083 now provides that “[a]n interlocutory judgment is appealable only when expressly provided by law.” La. C.C.P. art. 2083(C). Before the amendment, the jurisprudence held that a | ¿judgment denying arbitration was an interlocutory judgment that could cause irreparable harm and thus was immediately appealable. The courts and the commentators have construed the amendment to Article 2083 as abrogating the prior jurisprudence and requiring that such ruling be reviewed by supervisory writ. Arkel Constructors, Inc. v. Duplantier & Meric, Architects, L.L.C., 06-1950, 06-1951, p. 6 (La.App. 1 Cir. 7/25/07), 965 So.2d 455, 459 (holding that “the amendment to LSA-C.C.P. art. 2083 now prohibits an immediate appeal from a motion denying a request for arbitration, despite any contrary indications in the jurisprudence”); Anthony M. DiLeo, The Enforceability of Contractual Agreements to Arbitrate: A Survey of the Last Three Years of Jurisprudence, 56 La. B.J. 174, 175 n. 6 (2008)(noting that amendment to Article 2083 superceded jurisprudence holding there was a right to an interlocutory appeal from a judgment denying arbitration). The 2005 official comments to Article 2083 state that “[t]he prior cases recognizing a right to appeal interlocutory judgments based on the irreparable injury standard set forth in the previous version of Article 2083(A) are no longer valid.” La. C.C.P. art. 2083, 2005 Official Comment (b).

Applying these principles, this court in Ganier v. Inglewood Homes, Inc., 06-0642, p. 2 (La.App. 4 Cir. 11/8/06), 944 So.2d 753, 755-56, dismissed an appeal from an interlocutory judgment denying an exception of prematurity based on an arbitration agreement and converted the appeal to an application for supervisory writs.

The Wallace Defendants contend that this case is governed by the Federal Arbitration Act (“FAA”). They further contend that the FAA, which provides in Section 16 that an order denying arbitration may be appealed, preempts the Louisiana procedural law precluding an appeal from an order denying arbitration. | .Although we agree that the FAA governs this case, we find that the FAA does not preclude applying Louisiana procedural law regarding the right to appeal an interlocutory judgment denying arbitration.

The FAA has been construed as reflecting Congress’ intent to exercise the commerce power to the fullest extent, and the phrase “involving interstate commerce” in Section 2 of the FAA has been construed to mean “affecting” interstate commerce. Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 265, 115 S.Ct. 834, 130 L.Ed.2d 753 (1995). In this case, the purchase agreement entered into between Mr. Saavedra, a Louisiana resident, and Mr. Wallace, a Florida resident, to transfer property located in Texas clearly “affects” interstate commerce.

The FAA provisions governing the timing of appeals are procedural in nature, and state courts are thus free to follow their own procedural rules regarding the timing of appeals unless those rules undermine the goals and principles of the FAA. Collins v. Prudential Ins. Co. of America, 99-1423, p. 5 (La.1/19/00), 752 So.2d 825, 828-29. The Louisiana procedural rule limiting the review of an interlocutory judgment denying arbitration to a discretionary supervisory writ does not undermine the goals and principles of the FAA. See Allen v. Valero Energy Corp., 06-726, pp. 3-4 (La.App. 5 Cir. 1/9/07), 951 So.2d 370, 371-72 (rejecting argument that FAA preempted Louisiana procedural rule regarding right to immediate appeal a state court judgment).

For these reasons, we dismiss the Wallace Defendants’ appeal. Exercising our supervisory jurisdiction, we convert this appeal to an application for supervisory writs and for the reasons set forth below grant the writ application.

| .ARBITRATION

On appeal, the sole assignment of error the Wallace Defendants assert is that the trial court erred by overruling their exceptions of prematurity and lack of subject matter jurisdiction seeking to compel arbitration. The proper procedure to raise the issue of a party’s failure to submit to arbitration is by filing either a dilatory exception of prematurity or a motion to stay the proceeding pending arbitration. Frank L. Maraist and Harry T. Lemmon, 1 Louisiana Civil Law Treatise: Civil Procedure, § 6.6, n. 28 (1999). In this case, the Wallace Defendants properly raised this issue by filing an exception of prematurity.

Determination as to whether to stay or to compel arbitration is a question of law. Billieson v. City of New Orleans, 02-1993, p. 3 (La.App. 4 Cir. 9/17/03), 863 So.2d 557, 560. The standard of appellate review on questions of law is to determine whether the trial court was legally correct or incorrect. Id. The party pleading the exception of prematurity has the initial burden of showing the existence of a valid contract to arbitrate. Blount v. Smith Barney Shearson, Inc., 96-0207, p. 4 (La. App. 4 Cir. 2/12/97), 695 So.2d 1001, 1003.

As noted, this case is governed by the FAA. Section 2 of the FAA provides for resolution of issues by arbitration, stating:

A written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction, or the refusal to perform the whole or any part thereof, or an agreement in writing to submit to arbitration an existing controversy arising out of such a contract, transaction, or refusal, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.

|7The threshold inquiry a court must decide is whether the parties agreed to arbitrate their dispute, which is a two-fold inquiry: (1) whether there is a valid arbitration agreement, and (2) whether the dispute in question falls within the scope of that agreement. Lakeland Anesthesia, Inc. v. United Healthcare of Louisiana, Inc., 03-1662, p. 9 (La.App. 4 Cir. 3/17/04), 871 So.2d 380, 388. The question of whether the parties have submitted a particular dispute to arbitration — arbitrability — is generally one for the court to decide. Howsam v. Dean Witter Reynolds, Inc., 637 U.S. 79, 83, 123 S.Ct. 588, 154 L.Ed.2d 491 (2002). Under the FAA, any doubt concerning the scope of which disputes are arbitrable should be resolved in favor of arbitration. Moses H. Cone Me-mortal Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983).

It is undisputed that the January 2, 2006 purchase agreement entered into between Mr. Saavedra and Mr. Wallace contained an arbitration provision. The Wallace Defendants contend that the arbitration provision at issue is a broad one and that merely because Mr. Saavedra has cast his claims as involving fraud or misrepresentation does not render the dispute inarbitra-ble. See Grigson v. Creative Artists Agency L.L.C., 210 F.3d 524, 526 (5th Cir.2000)(holding that “parties to such [broad arbitration] agreements cannot avoid them by casting their claims in tort, rather than in contract.”) Mr. Saavedra counters that his claims sounding in ¡¡¡tort, including fraud in the inducement, intentional misrepresentation, and conversion lie outside the scope of the arbitration agreement. In support, Mr. Saavedra cites George Engine Co. v. Southern Shipbuilding Corp., 350 So.2d 881 (La.1977), for the proposition that an arbitration provision “do[es] not vest in arbitrators the historic jurisdiction of the courts to determine fraud or duress in the inception of a contract.” Id. at 884. He further contends that “this case is less about the quality and extent of performance (something potentially suited for arbitration), but rather the circumstances surrounding the formation of the original agreement and the subsequent objective novation (something suited for the trial court).

We find, as the Wallace Defendants contend, that the arbitration provision at issue is a broad one. See Complaint of Hornbeck Offshore (1984) Corp., 981 F.2d 752 (5th Cir.1993)(distinguishing between narrow and broad arbitration provisions). The arbitration provision covers “any and all claims, issues or disputes of any nature arising out of this contract in anyway, to include claims under tort law, contract law, statutory law, or common law.” When, as in this case, the contract contains a broad arbitration provision and an allegation of invalidity of the contract due to fraud in the inducement is raised, the federal courts have invoked the separability doctrine. Larry E. Edmondson, Domlce on Commercial Arbitration § 11:1 (3rd ed. 2008){“Domlce ”). The separability doctrine, which the United States Supreme Court adopted in Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 87 S.Ct. 1801, 18 L.Ed.2d 1270 (1967), is based in on a legal fiction that the arbitration provision is an independent contract from the main contract in which it is contained. Domlce, supra. Pursuant to this doctrine, the arbitration provision is treated as severable from the main agreement in which it appears, and “the issue of fraudulent inducement of the main contract, as well as other claims made by a | iiparty to a contract containing the broad arbitration agreement, go directly to arbitration, unless it is clearly shown that the parties intended to withhold such an issue from the arbitrator.” Domlce, supra.

The Louisiana Supreme Court in George Engine, supra, rejected the separability doctrine. In so doing, the court expressly recognized that it was departing from the Prima Paint case in determining a state law issue. Because this case is governed by the FAA, Mr. Saavedra’s reliance on the George Engine case is misplaced.

In two recent decisions, Preston v. Ferrer, — U.S. -, 128 S.Ct. 978, 169 L.Ed.2d 917 (2008) and Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 126 S.Ct. 1204, 163 L.Ed.2d 1038 (2006), the United States Supreme Court clarified and reaffirmed its holding in Pri-ma Paint. It is now well-settled that as a matter of substantive federal law applicable also to the states: (i) an arbitration clause is severable from the remainder of the contract, and (ii) unless the challenge is to the arbitration clause itself, the issue of the contract’s validity is decided by the arbitrator. Applying these principles to the instant case, which is governed by the FAA, we note that Mr. Saavedra’s fraud claim is directed to the purchase agreement as a whole; he is not attacking the arbitration provision itself. We thus find that Mr. Saavedra’s claims, including the claim of fraud in the inducement, must be arbitrated.

|inIn opposing the exception of prematurity, Mr. Saavedra also contended that the arbitration provision in the January 2, 2006 purchase agreement was not enforceable because the December 18, 2006 document executed by Mr. Bell, which was referenced in the petition, constituted a novation of the earlier agreement. Mr. Saavedra points out that the December 18, 2006 document contained no arbitration provision and expressly provided that it “represents the entire agreement between the two parties and supersedes the Wallacetown agreement and all others.” He thus contends the subsequent agreement was a true novation. In support, he cites the Civil Code articles on novation, which provide as follows:

• Novation is the extinguishment of an existing obligation by the substitution of a new one. La. C.C. art. 1879.
• The intention to extinguish the original obligation must be clear and unequivocal. Novation may not be presumed. La. C.C. art. 1880.
• Novation takes place when, by agreement of the parties, a new performance is substituted for that previously owed, or a new cause is substituted for that of the original obligation. If any substantial part of the original performance is still owed, there is no no-vation. La. C.C. art. 1881.
• Novation takes place also when the parties expressly declare their intention to novate an obligation. Id.
• Mere modification of an obligation, made without intention to extinguish it, does not effect a novation. The execution of a new writing, the issuance or renewal of a negotiable instrument, or the giving of new securities for the performance of an existing obligation are examples of such a modification. Id.

The Wallace Defendants counter that the December 18, 2006 document was not a novation. They point out that Mr. Saave-dra’s allegations in his petition are based on the original purchase agreement and establish his lack of intent to novate | „the purchase agreement. Indeed, they further point out that Mr. Saavedra’s evidence of a purported modification of the purchase agreement is a document that was not signed by either of the parties to the original agreement — Mr. Wallace or Mr. Saavedra.

Mr. Saavedra alleged in his petition that the December 18, 2006 document “contained language unilaterally claiming that it represented the entire agreement between the two parties.” A unilateral understanding, by definition, is not an agreement and thus cannot be a novation — an agreement to extinguish an earlier obligation. Mr. Saavedra’s allegations in his petition, as the Wallace Defendants point out, are based on the original purchase agreement and refute his argument that he intended to extinguish that agreement. Indeed, the basis for Mr. Saavedra’s petition is the original purchase agreement, and the relief he seeks includes a refund of the $55,000 purchase price allegedly paid under that agreement.

The January 2, 2006 purchase agreement expressly provided that “[n]o amendment, change or modification of this Agreement shall be valid unless in writing signed by the parties hereto.” As noted, neither of the parties to the purchase agreement signed the December 18, 2006 document.

Accordingly, we find that the allegations of Mr. Saavedra’s petition and the express language of the purchase agreement belie Mr. Saavedra’s novation argument.

I, ¿CONCLUSION

For the foregoing reasons, we convert this appeal to an application for supervisory writs. We grant the application for writs, reverse the judgment of the trial court denying the exception of prematurity, affirm the judgment of the trial court denying the exception of lack of subject matter jurisdiction, and remand for further proceedings consistent with this opinion.

APPEAL CONVERTED TO WRIT; WRIT GRANTED; REMANDED WITH INSTRUCTIONS.

      .The six defendants who filed these exceptions are Mr. Wallace; Jerry Wallace Developments, L.L.L.P.; Jerry Wallace Companies, L.L.L.P.; Jerry Wallace Dealmakers, L.L.C.; Wallacetown Land Company, L.L.L.P.; Jerry L. Wallace Limited Partnership; and Deal-makers Square, L.L.C. (hereinafter the "Wallace Defendants”). The two other named defendants, Dealmaker Developments, L.L.C., and Darren Zuppardo, did not join in filing the exceptions and are not parties to this appeal.

      . The suit was removed to federal court, but remanded to state court due to the failure to establish either diversity of citizenship or the jurisdictional limit.

      . Some of the defendants deposited $8,014 into the registry of the court as a tender.

      . The Wallace Defendants filed not only a notice of appeal within the thirty day period for filing a writ application, but also a notice of intent to apply for supervisory writ. Although in addressing the writ application we employed "writ denied” language, we actually deferred acting on the writ application to this appeal. We did not, as Mr. Saavedra contends, find the writ application procedurally defective.

      . Although the only parties to the purchase agreement were Mr. Saavedra and Mr. Wallace, the Wallace Defendants contend that given the relatedness of the claims collectively asserted against the defendants the arbitration agreement can be invoked by all the defendants, including the non-signatory defendants. See Grigson v. Creative Artists Agency, L.L.C., 210 F.3d 524, 527 (5th Cir.2000)(noting that "application of equitable estoppel is warranted when the signatory to the contract containing an arbitration clause raises allegations of substantially interdependent and concerted misconduct by both the nonsignatory and one or more of the signatories to the contract.”) We agree. Indeed, we note that Mr. Saavedra similarly acknowledges in his brief to this court that he has alleged that "the multiple juridical entities formed a single business enterprise in marketing, soliciting and contracting” with him and that his argument pertaining to the novation of the purchase agreement (discussed below) applies to all the defendants. Likewise, Mr. Saavedra uses the term defendant in his petition interchangeably to refer to all the defendants. We thus find, as the Wallace Defendants contend, the arbitration agreement equally applies to all the defendants.

      . Louisiana courts have recognized that the Louisiana Binding Arbitration Law, La. R.S. 9:4201-4217 ("LAL”), is virtually identical to the Federal Arbitration Act, 9 U.S.C. §§ 1-14 ("FAA”). Lakeland Anesthesia, Inc. v. United Healthcare of Louisiana, Inc., 03-1662, p. 8 (La.App. 4 Cir. 3/17/04), 871 So.2d 380, 387. The issue of whether the court or the arbitrator decides the question of fraudulent inducement is an exception to the general rule that the jurisprudence has construed the LAL and the FAA in the same manner.

      . In Sun Drilling Products Corp. v. Rayborn, 97-2112 (La.App. 4 Cir. 12/3/97), 703 So.2d 818, this court found that an allegation of fraud in the inducement of a contract containing an arbitration clause was to be decided by the court even when the case was governed by the FAA. In so finding, we relied on Doctor's Assoc., Inc. v. Casarotto, 517 U.S. 681, 116 S.Ct. 1652, 134 L.Ed.2d 902 (1996), as permitting a court to consider a challenge to the main contract based on a claim of fraud in the inducement. Given the United States Supreme Court’s recent holdings in 2006 and 2008 clarifying the scope of Prima Paint, we find our reliance on the Casarotto case was misplaced and conclude that a claim of fraud in the inducement is arbitrable unless the claim is directed at the arbitration provision itself.

      . Although the parties dispute Mr. Bell's authority to enter into a novation, we find it unnecessary to reach that issue.