author: CHARLES R. JONES, Chief Judge.

text:
    Michelle ALBE v. CITY OF NEW ORLEANS, Photo Safety Program.
    No. 2012-CA-0073.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 5, 2012.

      Jennifer N. Willis, Willis & Buckley, APC, Joseph G. Albe, New Orleans, LA, Robert A. Lenter, Robert A. Lenter, APLC, Metairie, LA, Roy F. Amedee, Jr., Law Offices of Roy F. Amedee, Jr., New Orleans, LA, Edward R. Washington, III, The Washington Law Group, LLC, New Orleans, LA, for Plaintiff/Appellant.
    Harry D. Rosenberg, Allen C. Miller, Phelps Dunbar LLP, New Orleans, LA, Jessica L. Coco II, Baton Rouge, LA, for Defendant/Appellee, American Traffic Solutions, Inc.
    Patricia S. LeBlane, Carl A. Butler, Michael L. Fantaci, Deborah A. Villio, Le-Blanc Butler, LLC, Metairie, LA, Sharon-da R. Williams, Chief of Litigation, Shawn Lindsay, Assistant City Attorney, New Orleans, LA, for Defendant/Appellee, City of New Orleans.
    (Court composed of Chief Judge CHARLES R. JONES, Judge, EDWIN A. LOMBARD, and Judge PAUL A. BONIN).
   CHARLES R. JONES, Chief Judge.

liThe Appellant, Michelle Albe, seeks review of the judgment of the district court granting the exception of no right of action of the Appellee, American Traffic Solutions, Inc. Finding that the district did not err under our de novo review, we affirm.

The matter sub judice involves a putative class action that arises out of the red light camera operation instituted by the City of New Orleans (“the City”). Ms. Albe is the putative lead plaintiff who filed suit against the City in 2008, contesting a ticket that was issued to her pursuant to the Automated Traffic Enforcement System (“ATES”) ordinance, and alleging that neither the photos nor video taken by the traffic camera showed who was driving the cited vehicle at the time of the alleged infraction. The ATES ordinance sets forth a civil fine collection system based on photographic evidence of alleged traffic violations. Since filing her original petition, Ms. Albe has since filed four (4) amending and supplemental petitions. In her second amending and supplemental petition, Ms. Albe added |2American Traffic Solutions, Inc. (“American”) as a defendant. American operated the red light camera system for the City.

In her third amended and supplemental petition, Ms. Albe sought class action status for the first time. The district court granted summary judgment in favor of the City and American dismissing all of the claims of Ms. Albe that challenged the constitutionality and the overall validity of the ATES ordinance, but the court did not dismiss Ms. Albe’s claim that the ATES Ordinance is preempted by the Louisiana Highway Regulatory Act, La. R.S. 32:1, et seq.

In the fourth amended and supplemental petition, Ms. Albe challenged the overall validity of the original ATES ordinance on the grounds that the retroactive application of an amendment to the ATES ordinance violates the Due Process Clause of the United States and Louisiana Constitutions, and constitutes an ex post facto law. Ms. Albe further claimed that the ATES ordinance is preempted by the Louisiana Highway Regulatory Act, La. R.S. 32:1, et seq. Ms. Albe also asserted claims based on the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692, et seq., and Louisiana tort laws. Finally, she asserted a breach of contract claim based on the contract between American and the City.

In response to the fourth amended and supplemental petition, American filed peremptory exceptions of prescription, res ju-dicata, no cause of action and no right of action. The district court granted the exceptions of no right of action and the exception of res judicata, but denied all the other exceptions. The judgment of the district court was certified as final and Ms. Albe timely filed the instant appeal.

The sole assignment of error raised by Ms. Albe on appeal is whether the specification within a contract between American and the City that requires |sAmerican to comply with the FDCPA constitute a stipulation pour autrui of which the citizens of New Orleans are beneficiaries. The crux of Ms. Albe’s argument is that FDCPA is a consumer protection statute with a purpose of shielding debtors or alleged debtors from abusive collection actions, and therefore, its inclusion in the contract at issue evidences that American and the City meant to stipulate for the benefit of the citizens of New Orleans, who are the targets of the debt collection activities. The inclusion of the statute within the contract acts as a stipulation pour autrui, argues Ms. Albe, because American would not have been bound by the requirements of the FDCPA, but for this contractual requirement as American is not a debt collection company.

Ms. Albe further argues that American sent out delinquency notices in furtherance of enforcing the fines of the red light camera ordinance. Some violation notices threatened jail time, adverse credit reporting, and immobilization of the cited vehicle. Ms. Albe argues that Robert Mendoza, an employee of the City, testified that it was never the intent of the City to arrest anyone for failure to pay the fines, and that the City never reported or intended to report any alleged violator to a credit bureau for the failure of the vehicle owner to pay the civil penalty under the ATES ordinance. Employees of both the City and American testified that it was never the intent of the City or American to follow through with such warnings, and that there was no mechanism for following through with arresting anyone under the ordinance. Ms. Albe argues the actions taken by American are a violation of the FDCPA, which is why the City contracted to protect citizens from this type of abusive treatment.

14An appellate court reviews the granting of exceptions of no right of action under a de novo standard of review because these exceptions involve questions of law. Recovery Dev. Group, LLC, Next Generation Homes, LLC v. Nat’l Baptist Convention of Am., Inc., 10-1086, p. 10 (La.App. 4 Cir. 4/20/11), 63 So.3d 1127, 1132, reh’g denied (5/25/11), writ denied sub nom., Recovery Dev. Group, LLC v. Nat’l Baptist Convention of Am., Inc., 11-1347 (La.9/30/11), 71 So.3d 293. The exception of no right of action determines whether the plaintiff belongs to the class of persons to whom the law grants the cause of action asserted in the petition. It asks whether the particular plaintiff has a real and actual interest in the subject matter of the litigation. Louisiana Paddle-wheels v. Louisiana Riverboat Gaming Comm’n, 94-2015, p. 5 (La.11/30/94), 646 So.2d 885, 888, (citing Babineaux v. Pernie-Bailey Drilling Co., 261 La. 1080, 262 So.2d 328 (1972)). The focus in an exception of no right of action is on whether the particular plaintiff has a right to bring suit, but it assumes that the petition states a valid cause of action for some person and questions whether the plaintiff in the particular ease is a member of the class that has a legal interest in the subject matter of the litigation. Reese v. State Department of Public Safety and Corrections, 03-1615, pp. 2-3 (La.2/20/04), 866 So.2d 244, 246.

The Louisiana Civil Code provides that a contracting party may stipulate a benefit for a third person called a third-party beneficiary. La. C.C. art. 1978. Under Louisiana law, such a contract for the benefit of a third party is referred to as a stipulation pour autrui. Paul v. Louisiana State Employees’ Group Benefit Program, 99-0897, p. 5 (La.App. 1 Cir. 5/12/00), 762 So.2d 136, 140. Each case must be decided on a case-by-ease basis, and “[e]ach contract must be evaluated on | fits own terms and conditions in order to determine if the contract stipulates a benefit for a third person.” Dugas v. Thompson, 11-0178, p. 11 (La.App. 4 Cir. 6/29/11), 71 So.3d 1059, 1066, reh’g denied (8/12/11) (citing Joseph v. Hosp. Serv. Dist. No. 2 of Parish of St. Mary, 05-2364, pp. 8-9 (La.10/15/06), 939 So.2d 1206,1212).

The Civil Code does not provide an “analytic framework for determining whether a third party beneficiary contract exists” in a particular case. Joseph, 05-2364, p. 8, 939 So.2d at 1211. The Louisiana Supreme Court, however, has held that there are three (3) criteria for determining whether contracting parties have provided a benefit for a third party and requires a review of whether: 1) the stipulation for a third party is manifestly clear; 2) there is certainty as to the benefit provided the third party; and 3) the benefit is not a mere incident of the contract between the promisor and the promisee. Id., 05-2364, pp. 8-9, 939 So.2d at 1212. In applying these criteria, we ultimately rely on the words of Article 1978 that the contract must “stipulate a benefit for a third person.” Id.

The first criteria for determining whether contracting parties have provided a benefit for a third party is whether the stipulation is manifestly clear. Our Supreme Court has explained that “[t]he most basic requirement of a stipulation pour autrui is that the contract manifests a clear intention to benefit the third party; absent such a clear manifestation, a party claiming to be a third party beneficiary cannot meet his burden of proof.” Id., 05-2364, p. 9, 939 So.2d at 1212 [citations omitted]. Furthermore, a stipulation pour autrui is never presumed and the party | (¡claiming the benefit bears the burden of proof. Id. [citations omitted]; See La. C.C. art. 1831.

The second factor to be considered—that there is certainty as to the benefit provided to the third party—is based on the principle that in order to create a legal obligation enforceable by the beneficiary there must be certainty as to the benefit to accrue to the beneficiary.

Id. (citing Berry v. Berry, 371 So.2d 1346, 1347 (La.App. 1 Cir.), writ denied, 373 So.2d 511 (1979)).

Lastly, the third requirement is that the benefit cannot be a mere incident of the contract. With regard to this factor, the onus is the district court to distinguish a situation where an advantage has actually been stipulated on behalf of a third party from a situation where the advantage relied upon is merely an incident of the contract between the parties. See Id., 05-2364, pp. 9-10, 939 So.2d at 1212-1213 (citing Smith, Third Party Beneficiaries in Louisiana: The Stipulation Pour Autrui, 11 Tul. L.Rev. 18, 28 (1936)). “Not every promise, performance of which may be advantageous to a third person, will create in him an actionable right.” Id.

The wording of the contract at issue is controlling in order to determine, pursuant to the holdings of the Supreme Court in Joseph, whether Ms. Albe has a right of action based upon the contract between American and the City. The pertinent section of the contract is Section 2, entitled Citation and Collection System, Part B, (2), which provides:

(2) Delinquency Collections:
(a) A citation is in default when the identified responsible party had not entered a valid plea (guilty or |7not guilty) by the due date. A citation is delinquent when the identified responsible party had not paid an assessed fine and costs within 90 days after an adjudication or guilty pleas.
(b) The contractor will maintain and operate a collection system for delinquent and defaulted citations. The system will use escalating demands for overdue or unpaid citations and invoices. It will comply with the Fair Debt Collection Practices, latest revision.

The first factor of Joseph, as previously stated, requires that the stipulation for a third party is manifestly clear. However, the aforementioned wording of the contract does not make a stipulation for the benefit of a third party manifestly clear. Rather, the reference to the FDCPA seems to be a restriction on the manner in which American operates its debt collection system. We note that the FDCPA was enacted to protect consumers. Nevertheless, considering the starkness of the contractual reference to the FDCPA, we cannot impute the purpose of the act and its inclusion in the contract as manifesting a clear intent of the contracting parties to create a stipulation pour autrui. The contract does not expressly provide for the third party benefit for those persons such as Ms. Albe, who received citations pursuant to the ATES ordinance.

Considering the second factor of Joseph, as to whether it would be certain that there would be a benefit provided to Ms. Albe as a person who received a citation pursuant to the ATES ordinance, we find that there was a benefit provided to her. As a person who received a citation, she was supposed to be protected from the unethical collection practices of American pursuant to the contractual provision at issue. Testimony of the employees of the City reveals that Ms. Albe and others were not protected from unfair collection practices as these methods were rampantly employed in pursuit of collecting fines for the alleged red light camera infractions.

| ^Lastly, as noted above, the third prong of Joseph is that the benefit is not a mere incident of the contract between the prom-isor and the promisee. Thus, we examine whether the advantage of being protected by the FDCPA for Ms. Albe is an advantage that has been stipulated to, or whether it is merely an incident of the contractual provision at issue. We established through our examination of the prior two factors that Ms. Albe is protected by the FDCPA provision of the contract at issue although the contract itself does not manifest a clear stipulation in her favor. This indicates that the benefit she receives is a mere incident of the contract between the City and American.

Moreover, with regard to municipal contracts, our Supreme Court has held that while citizens always benefit from such contracts, it does not follow that a stipulation pour autrui exists in their favor. The Court reasoned:

[t]he point that the stipulations in the contracts of a municipality advantageous to the citizens of the municipality do not constitute stipulations pour autrui has heretofore been authoritatively decided.

Long v. City of Shreveport, 151 La. 423, 428, 91 So. 825, 827 (La.1921) (citing Allen Mfg. Co. v. Shreveport Waterworks Co., 113 La. 1091, 37 So. 980, 68 L.R.A. 650, 104 Am.St.Rep. 525, 2 Am.Ann.Cas. 471; Black v. N.O. Ry. Co., 145 La. 180, 82 South. 81 (1919)). In a prior decision of the Supreme Court in Allen Mfg. Co., the Supreme Court held:

[A] municipal corporation is nothing more than a fictitious being created for the purpose of administering the affairs of the public, and necessarily all its contracts are for ‘the public benefit’; but it does not follow that they are all stipulations pour autrui in favor of the inhabitants individually, and that the latter may bring suit thereon.

Allen v. Currey Mfg. Co., 37 So. at 986. In light of the holdings of the Supreme Court and of the contractual provision at issue, we find that Ms. Albe has not made |9a showing that the benefit provided to her is anything more than incidental; thus, the three-prong test of the Supreme Court in Joseph was not met in the instant case. Furthermore, we recognize that the purpose of the FDCPA, as set forth in 15 U.S.C.A. § 1692(e), is to “eliminate abusive debt collection practices by debt collectors, to insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged, and to promote consistent State action to protect consumers against debt collection abuses.” However, we decline to impute the purpose of the statute as being identical to the purpose for the City requiring American to comply with the FDCPA, where such a purpose is not specifically provided. Therefore, under our de novo review, the district court did not err in granting the exception of no right of action of American.

DECREE

For the foregoing reasons, the judgment of the district court granting the exception of no right of action of American Traffic Solutions, Inc., is affirmed.

AFFIRMED

BONIN, J., concurs in the result.

      . In February 2007, the City amended Chapter 154 of the City Code to create the Automated Traffic Enforcement System ordinance.

      . Ms. Albe did not appeal the judgment of the district court granting the exception of res judicata of American; thus, this judgment has become final.

      . La. C.C. art. 1831, Party must prove obligation:

      A party who demands performance of an obligation must prove the existence of the obligation.
      A party who asserts that an obligation is null, or that it has been modified or extinguished, must prove the facts or acts giving rise to the nullity, modification, or extinction.


source: Caselaw Access Project

author: GUIDRY, J.

license: Public Domain

text:
    BAYOU TERRACE ESTATES HOME OWNERS ASSOCIATION, INC. v. Jessica STUNTZ.
    No. 2011 CA 1886.
    Court of Appeal of Louisiana, First Circuit.
    July 10, 2012.

      Anna E. Dow, Gonzales, LA, for Plaintiff/Appellee Bayou Terrace Estates Home Owners Association, Inc.
    Mark D. Plaisance, Thibodeaux, LA, Leroy J. Laiche, Jr., Prairieville, LA, for Defendant/Appellant Jessica Stuntz.
    Before WHIPPLE, KUHN, and GUIDRY, JJ.
   GUIDRY, J.

|2A homeowner appeals a judgment enjoining her from operating a business out of her home. While the appeal of this matter was pending, the homeowner filed a peremptory exception urging the objection of prescription with this court. For the following reasons, we overrule the exception and affirm the judgment appealed.

FACTS AND PROCEDURAL HISTORY

Bayou Terrace Estates is a subdivision located in Ascension Parish for which the Bayou Terrace Estates Home Owners Association, Inc. (“the Association”) was created pursuant to the Louisiana Homeowners Association Act, La. R.S. 9:1141.1-1141.9, to manage and regulate the residential planned community. On July 12, 2010, the Association filed a petition for injunctive relief against Jessica Stuntz, a homeowner in the subdivision, to enforce a building restriction that prohibits the commercial use of lots contained in the subdivision. In the petition, the Association asserted that Ms. Stuntz operated a business known as “Ink Girl Studio” out of her home, by which she provided art lessons and painting parties for which she was paid. Pursuant to the petition filed by the Association, the trial court issued a temporary restraining order (TRO) ordering Mrs. Stuntz to “cease operation of the business known as Ink Girl Studio or any other commercial studio on the property located in Bayou Terrace Estates.” The trial court also set a date for a hearing on the issuance of a preliminary injunction, following which it held the matter should be set for a hearing for a permanent |,-¡injunction and the operation of the TRO was extended to the date of the hearing for the permanent injunction.

A hearing for permanent injunctive relief was set for October 22, 2010; however, prior to that date, the Association filed a joint motion for contempt and motion in limine against Mrs. Stuntz for her failure to comply with the TRO ordering her to stop the operation of her business in the subdivision and for her failure to provide certain discovery responses. Thereafter, Mrs. Stuntz filed an answer to the petition for injunctive relief and the matter proceeded to a bench trial, which convened on November 80, 2010. Following the hearing, the trial court ruled in favor of the Association, holding that the art lessons Mrs. Stuntz provided in her home is “a commercial enterprise” and immediately enjoined Mrs. Stuntz “from operating a commercial enterprise in her home at 18445 Bayou Terrace, St. Amant, Louisiana, in Bayou Terrace Estates.” The trial court declined to find Mrs. Stuntz in contempt, but left the petition open to allow the Association to re-urge contempt in the event Mrs. Stuntz continued to provide art lessons in her home.

It is from this judgment that Mrs. Stuntz appeals, and on appeal, Mrs. Stuntz has filed a peremptory exception urging the objection of prescription.

DISCUSSION

Subdivision restrictions governing the use and maintenance of lots contained within the Bayou Terrace Estates subdivision were first established by the contractor that created the subdivision, Achord Construction, Inc., in 1991. The original restrictions provided that the property comprising the subdivision could “be used only for residential and campsite purposes, all commercial or other activities incompatible with the same are prohibited.” Over the years, the restrictions were amended and restated, and in August 2006, four contiguous ^subdivisions combined, amended, and restated the restrictions to apply to all four of the subdivisions, including both filings of the Bayou Terrace Estates, in a document titled, “Amended Act of Restrictions for the Bayou Terrace Estates Subdivision, Bayou Terrace Estates Subdivision, Second Filing, Canal Bank Subdivision, First Filing, and Canal Bank Subdivision, Second Filing,” filed as Instrument #00645571 with the Ascension Parish Clerk of Court.

At issue in this appeal is the interpretation and application of restriction 5.1.1 under the section titled, “GENERAL COVENANTS, OBLIGATIONS AND RESTRICTIONS,” which provides:

Except as otherwise provided in paragraph 5.1.2 [relative to storage buildings, garages, and other out-buildings used for storage purposes], all Lots shall be used solely for single family residential purposes, and no more than one single family residence shall be built upon any Lot. The use of a Lot for other forms of residential use or for commercial, institutional, medical, retail, religious or commercial storage uses of any kind is strictly prohibited. The foregoing shall not be interpreted to prohibit a personal office from being located within the residence.

On appeal, Mrs. Stuntz contends that the trial court erred in finding that the art lessons she gives are a commercial enterprise. As she argues in her brief, she is “carrying on her profession in her home and ... not operating a business, trade, industry, or commercial enterprise as generally understood.”

At trial, Mrs. Stuntz testified that she moved into the subdivision in October 2006, and that she provided art lessons in her home since moving into the subdivision. As she explained:

It’s no more than just a group. Art lessons, basically. Sometimes it’s a group of people that know each other and they’re actually celebrating something, like a birthday ... so we call it [a] painting party. It’s an art lesson done in a group form and they come, sometimes they come to me, sometimes I go to them, different locations.... [B]ut they can come and arrange by appointment. I walk them through, usually, is one painting. Like, they’re to choose a painting ahead of time that they want to try to do their own version of, and I help them do that.

|;;Mrs. Stuntz admitted that she is “compensated” for the lessons she provides, and explained that the amount she charges depends on what the person wants to paint, because she provides the supplies. So the larger the painting, the more supplies she must provide, such as a larger piece of canvas, which cost more. However, when asked if she were just selling the canvases and paint, Mrs. Stuntz replied, “I’m selling my services to teach art”; but included in the amount she charges are the costs of the art supplies. While Mrs. Stuntz at one point characterized the lessons she gives as “[i]t’s more like we have people over than it is a business,” she admitted the lessons are not a personal party that she and her husband give for people they know, but the lessons are “part of my income.”

At her art parties, Mrs. Stuntz testified that she could accommodate a group of up to sixteen people in her home, but on her website, she limits the groups to up to ten persons. She also stated that the lessons are open to the general public and that she does not have any restrictions on who she allows in her home for the lessons.

Building restrictions are charges imposed in pursuance of a general plan governing building standards, specified uses, and improvements and may impose on owners of immovables affirmative duties that are reasonable and necessary for the maintenance of the general plan. La. C.C. arts. 775 and 778. Generally, doubt as to the existence, validity, or extent of building restrictions is resolved in favor of the unrestricted use of the immovable. See La. C.C. art. 783. However, the provisions of the Louisiana Homeowners Association Act, La. R.S. 9:1141.1, et seq., supersede the Civil Code articles on building restrictions in the event of a conflict. La. C.C. art. 783. Regarding interpretation of building restrictions on property regulated by a homeowners association, La. R.S. 9:1141.4 provides that “[t]he existence, validity, or extent of a building restriction affecting any | ^association property shall be liberally construed to give effect to its purpose and intent.” Fern Creek Owners’ Association. Inc. v. City of Mandeville, 08-1694, p. 11 (La.App. 1st Cir.6/30/09), 21 So.3d 369, 377.

While Mrs. Stuntz argues that the art lessons she provides are not in violation of restriction 5.1.1, the Association, as explained by the Board president, Frank Coates, takes a different position. Mr. Coates testified that the Board views restriction 5.1.1 as prohibiting “no commercial business being conducted out of a home, and that any services rendered at that home and someone paying for these services at that residence or location is strictly prohibited.” Additionally, Judy Grounds, who holds the position of treasurer with the Board, explained that Mrs. Stuntz’s activities violate restriction 5.1.1 because she has customers come to and performs services out of her home, as opposed to simply having a personal office that does not interfere with the operations of the subdivision.

Although personal office is not defined or described in the Association restrictions, our review of cases involving similar restrictions on the commercial use of residential property reveals that mere administrative or managerial activities, or even insubstantial provision of services in the home, have been found not to violate the intent of such provisions. See Schwab v. Kelton, 405 So.2d 1239, 1245 (La.App. 1st Cir.), writ denied, 407 So.2d 749 (La.1981). Moreover, Mrs. Stuntz’s actions of providing art lessons in her home are clearly more analogous to those cases in which the activities of the homeowners were found to be in violation of “residential use only” restrictions. See Ellis v. Dearing, 435 So.2d 1107 (La.App. 1st Cir.), writ denied, 441 So.2d 765 (La.1983); Mulberry Association, Inc. v. Richards, 369 So.2d 185 (La.App. 4th Cir.), writ denied, 371 So.2d 1345 (La.1979);7 Oak Ridge Builders. Inc. v. Bryant, 252 So.2d 169 (La.App. 3d Cir.), writ denied, 259 La. 945, 253 So.2d 384 (1971); Woolley v. Cinquigranna, 188 So.2d 701 (La.App. 4th Cir.1966).

The issuance of a permanent injunction takes place only after a trial on the merits, in which the burden of proof must be founded on a preponderance of the evidence. Thus, the standard of review for the issuance of a permanent injunction is the manifest error standard. Fern Creek Owners’ Association, Inc., 08-1694 at p. 10, 21 So.3d at 376. Considering the evidence presented and jurisprudence interpreting similar restrictions on the commercial use of residential property, we cannot say that the trial court erred in granting a permanent injunction based on its finding that the art lessons provided by Mrs. Stuntz violated restriction 5.1.1.

While this appeal was pending, Mrs. Stuntz filed a peremptory exception raising the objection of prescription directly with this court. In the exception, Mrs. Stuntz argues that even if the art lessons she conducts in her home are considered a commercial enterprise, the Association should be precluded from enforcing restriction 5.1.1 and denied injunctive relief based on the liberative prescription provided under La. C.C. art. 781. That article states:

No action for injunction or for damages on account of the violation of a building restriction may be brought after two years from the commencement of a noticeable violation. After the lapse of this period, the immovable on which the violation occurred is freed of the restriction that has been violated. [Emphasis added.]

Louisiana Code of Civil Procedure article 2163 allows an appellate court to consider a peremptory exception filed for the first time in that court, if pleaded prior to a submission of the case for a decision, and if proof of the ground of the exception appears of record. Thus, the exception is properly before this court.

As previously stated, Mrs. Stuntz testified that she has been giving art lessons in her home since moving into the subdivision in October 2006. Moreover, |sshe has maintained several websites, wherein she advertises the art lessons she provides, since 2002. Accordingly, Mrs. Stuntz asserts that the Association should be barred from enforcing restriction 5.1.1 and receiving injunctive relief because she has openly been providing art lessons in the subdivision in excess of the two-year prescriptive period contained in La. C.C. art. 781.

For the purpose of La. C.C. art. 781, some activity which is noticeable and apparent must occur on the lot, and at that point, the two-year prescriptive period commences. Investment Management Services, Inc. v. Village of Folsom, 00-0832, p. 7 (La.App. 1st Cir.5/11/01), 808 So.2d 597, 604. Moreover, it has been observed that La. C.C. art. 781 has been interpreted and applied to provide that:

The two-year prescription begins to run from the commencement of a noticeable violation rather than the day the plaintiff acquires knowledge of the violation. Ordinarily, the prescription commences when the violation of the restriction is neither secretive nor clandestine. An activity conducted on a modest scale may not be noticeable or may not be a violation at all; but the same type of activity, if expanded, may become a noticeable violation.

A.N. Yiannopoulos, Predial Servitudes § 197 at 455, in 4 Louisiana Civil Law Treatise (3d ed.2004) (footnotes omitted).

With these principles in mind, mere advertisement, without some correlating, noticeable activity on the immovable property at issue, would be insufficient to commence prescription under La. C.C. art. 781. Furthermore, we decline to hold that mere maintenance of a website or advertisement on the internet is sufficient to establish a noticeable violation.

Other than her assertion of the maintenance of various websites to advertise her services since 2002, Mrs. Stuntz’s testimony at trial reveals that the earliest her actions of providing art lessons in her home became noticeable was in the fall of 2009. At trial, Mrs. Stuntz identified several members of the subdivision who had taken or were taking art lessons in her home, but she could not recall any member taking a lesson in her home before 2009. She explained that “[a]t that point[,] I 19wasn’t aggressively marketing. It was all on the website, but it was very passive.” She also admitted that in fall 2009, she handed out postcards in the subdivision and placed a sign in her yard advertising her art lessons. When she received the letter from the Association Board in March 2010, indicating that she was in violation of the subdivision restrictions regarding the posting of signs and parking, in addition to restriction 5.1.1, Mrs. Stuntz stated she immediately removed the sign and made arrangements for parking. The Association filed its petition for injunctive relief on July 12, 2010, prior to the lapse of two years from the fall of 2009, when Mrs. Stuntz’s actions of providing art lessons in her home became noticeable.

Thus, the Association’s action for injunc-tive relief to enforce restriction 5.1.1 is not prescribed, and, accordingly, we overrule the exception.

CONCLUSION

For the foregoing reasons, we affirm the trial court’s finding that the art lessons given by Mrs. Stuntz in her home is a commercial enterprise in violation of the subdivision restrictions of the Bayou Terrace Estates Homeowners Association. Accordingly, we affirm the permanent injunction issued by the trial court. Moreover, finding that prescription has not accrued, we overrule the peremptory exception based on prescription filed by Mrs. Stuntz. All costs of this appeal are east to the appellant, Jessica Stuntz.

AFFIRMED.

      . “Residential planned community” or "planned community” means a real estate development, used primarily for residential purposes, in which the owners of separately owned lots are mandatory members of an association by virtue of such ownership. La. R.S. 9:1141.2(7).

      . According to La. R.S. 9:1141.5, building restrictions may be established to regulate building standards, specified uses, and improvements of association property.

      . The trial court found that "there is a distinction between having an office in your house where you do some administrative functions and they bill from your house, make phone calls from your office as opposed to having an enterprise where you’re making money from activities being conducted within your home such as those being conducted by Ms. Stuntz.”


author: KUHN, J.

text:
    CHARMING CHARLIE, INC. v. PERKINS ROWE ASSOCIATES, L.L.C. and Joseph T. Spinosa.
    No. 2011 CA 2254.
    Court of Appeal of Louisiana, First Circuit.
    July 10, 2012.

      D. Brian Cohn, Bartley P. Bourgeois, David M. Cohn, Baton Rouge, LA, for Plaintiff-Appellant Charming Charlie, Inc.
    Donnie L. Floyd, Prairieville, LA, for Defendants-Appellees Perkins Rowe and Joseph T. Spinosa.
    Before WHIPPLE, KUHN, and GUIDRY, JJ.
   KUHN, J.

| ¡¡Plaintiff, Charming Charlie, Inc. d/b/a Charming Charlie (Charming Charlie), appeals a judgment sustaining a peremptory exception raising the objection of no cause of action and dismissing its suit for breach of a commercial lease against defendant, Joseph T. Spinosa (Spinosa). For the following reasons, we affirm in part, reverse in part, and remand with instructions.

PROCEDURAL AND FACTUAL BACKGROUND

On October 21, 2009, Charming Charlie filed a petition for damages naming Perkins Rowe Associates, L.L.C. (Perkins) and Spinosa, individually, as defendants. According to the petition, Charming Charlie and Perkins, through its managing member and authorized agent, Spinosa, entered into a lease on May 4, 2009, for certain space located in the shopping center commonly known as “Perkins Rowe.” Charming Charlie further alleges that Perkins breached the lease by failing to reimburse it $682,500.00, as provided under the terms of the lease, for a construction allowance on the leased premises. Charming Charlie also seeks liquated damages and reasonable attorney fees. Additionally, Charming Charlie alleges that Spinosa is personally liable for the reimbursement and damages it seeks, because he is the alter ego of Perkins and he fraudulently induced Charming Charlie into entering the lease. In the alternative, Charming Charlie asserts it is entitled to an offset against any rental amounts it owes to Perkins in an amount equal to all monies owed by Perkins as a result of its breach of the lease.

Perkins and Spinosa filed an answer generally denying the allegations of the petition. Defendants also asserted as an affirmative defense that Perkins was unable to pay the construction allowance due to a force majeure (inability to obtain [«¡financing), which they claimed relieved Perkins of any liability for penalties or liquated damages under the terms of the lease.

In further answer to the petition, Spino-sa asserted a peremptory exception raising the objections of no cause and/or right of action as to the claims made against him individually. Following a hearing, the district court sustained the exception of no cause of action and rendered judgment dismissing Spinosa from this suit. Charming Charlie now appeals, asserting in its sole assignment of error that the district court erred in concluding that its petition failed to state a cause of action against Spinosa individually.

DISCUSSION

On appeal, Charming Charlie contends Spinosa is “personally liable for all sums found due and owing by Perkins as a result of his actions and/or inactions with regard to the Lease and his dealings with Charming Charlie.” It maintains that its petition states multiple causes of action against Spinosa individually based on the allegations contained therein regarding his status as the alter ego of Perkins, his personal decisions and financial knowledge when the lease was executed, and his fraudulent inducement of Charming Charlie to enter into the lease with Perkins. Therefore, it argues that the district court erred in sustaining the exception of no cause of action.

As used in the context of the peremptory exception, a “cause of action” refers to the operative facts which give rise to the plaintiffs right to judicially assert the action against the defendant. Scheffler v. Adams and Reese, LLP, 2006-p.7744 (La.2/22/07), 950 So.2d 641, 646. The exception is triable on the face of the pleadings, and for purposes of resolving the issues raised by the exception, the well-pleaded facts in the petition are accepted as true in order to determine whether the law affords a remedy on the facts alleged in the petition. Because the exception of no cause of action raises a question of law and the trial court’s decision is based solely on the sufficiency of the petition, review of the trial court’s ruling on an exception of no cause of action is de novo. The pertinent question is whether, in the light most favorable to the plaintiff, and with every doubt resolved in the plaintiffs favor, the petition states any valid cause of action for relief. Louisiana State Bar Association v. Carr and Associates, Inc., 08-2114 (La.App. 1st Cir.5/8/09), 15 So.3d 158, 167, writ denied, 09-1627 (La.10/30/09), 21 So.3d 292.

In the instant case, Charming Charlie contends Spinosa is personally liable for Perkin’s default under the lease, even though he signed the lease in his capacity as Perkins’ authorized agent and managing member, because (1) he is the alter ego of Perkins (a limited liability company) and (2) he fraudulently induced Charming Charlie to enter into the lease. Specifically, the petition contains the following pertinent allegations:

_⅛20.

Spinosa is the managing member of and has a significant ownership interest in Perkins. Upon information and belief, at all times mentioned herein, Spi-nosa, when signing the Lease, and at this time, is the alter ego of Perkins. Alternatively, as a member and manager of Perkins, all decisions of Spinosa are in reality the personal decisions of Spinosa.

21.

Upon information and belief, Spinosa entered into the Lease knowing or at least should have known that his company, Perkins, did not have the financial resources to pay the Construction Allowance provided in the Lease and fraudulently induced Charming Charlie to enter into the Lease at the terms therein.

22.

Spinosa must be held liable for all sums found due and owing by Perkins as a result of his actions and/or inactions in regards to the Lease and dealings with Charming Charlie.

23.

Charming Charlie has relied upon representations of Perkins and Spinosa and has suffered a detriment to its position as set forth herein because of said reliance.

For the following reasons, we conclude the allegations of the petition do not state a cause of action against Spinosa in his individual capacity. A Louisiana limited liability company is a separate le-

gal entity from its members. Glod v. Baker, 02-988 (La.App. 3d Cir.8/6/03), 851 So.2d 1255, 1265, writ denied, 03-2482 (La.11/26/03), 860 So.2d 1135; Metro Riverboat Associates, Inc. v. Bully’s Louisiana, Inc., 99-0983 (La.App. 4th Cir.1/24/01), 779 So.2d 122, 125, writ denied, 01-1088 (La.6/1/01), 793 So.2d 199. Further, members of a limited liability company generally may not be assessed with personal liability for the debts and obligations of their limited liability companies to third parties absent proof of fraud. See La. R.S. 12:1320; Imperial Trading Co., Inc. v. Uter, 01-0506 (La.App. 1st | fiCir.l2/20/02), 837 So.2d 663, 669, writ denied, 03-0224 (La.3/28/03), 840 So.2d 578. However, there are certain limited exceptions to the rule of non-liability of shareholders for the debts of a corporation, whereby the court may ignore the corporate fiction and hold the individual shareholders liable. Riggins v. Dixie Shoring Company, Inc., 590 So.2d 1164, 1168 (La.1991). Moreover, the same policy considerations relevant to a determination of piercing the veil of a corporation also apply to a limited liability company. Imperial Trading Co., 837 So.2d at 669 n. 7.

Louisiana courts have allowed a piercing of the corporate veil under only two exceptional circumstances, namely, where the corporation is an alter ego of the shareholders and the shareholders have used the corporation to defraud a third party (the “alter ego” doctrine) and where the shareholders have failed to conduct a business on a “corporate footing” to such an extent that the corporation ceases to be distinguishable from its shareholders. Riggins, 590 So.2d at 1168; Imperial Trading Co., 837 So.2d at 669-70. Some of the relevant factors considered in determining whether to apply the alter ego doctrine include: commingling of corporate and shareholder funds; failing to follow statutory formalities for incorporating and transacting corporate affairs; under-capitalization; failing to maintain separate bank accounts and bookkeeping records; and failing to hold regular shareholder and director meetings. Riggins, 590 So.2d at 1168; Imperial Trading Co., 887 So.2d at 670.

Furthermore, Louisiana courts are reluctant to hold a shareholder, officer, or director of a corporation personally liable for corporate obligations, in the absence of fraud, malfeasance, or criminal wrongdoing. Riggins, 590 So.2d at 1168; Imperial Trading Co., 887 So.2d at 670. In pleading fraud, the circumstances | ./Constituting fraud must be alleged with particularity, although knowledge may be alleged generally. La. C.C.P art. 856. There are three basic elements to an action for fraud against a party to a contract: (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 (3) the error induced by a fraudulent act must relate to a circumstance substantially influencing the victim’s consent to (a cause of) the contract. See La. C.C. art. 1953; Shelton v. Standard/700 Associates, 01-0587 (La.10/16/01), 798 So.2d 60, 64. Thus, fraudulent intent, or the intent to deceive, is a necessary and inherent element of fraud. Fraud cannot be predicated upon mistake or negligence, no matter how gross. Terrebonne Concrete, LLC v- CEC Enterprises, LEG, 11-0072 (La.App. 1st Cir.8/17/11), 76 So.3d 502, 509, writ denied, 11-2021 (La.11/18/11), 75 So.3d 464.

Based on our de novo review, we find that the petition does not state a cause of action against Spinosa individually. Although Charming Charlie alleges in the petition that Spinosa is Perkins’ alter ego, an examination of the specific allegations therein reveals that the allegations are merely conclusory in nature and are not based upon specific facts relevant to a determination of the alter ego doctrine. There are no allegations that Spinosa commingled Perkins’ assets with those of it members, failed to maintain separate bank accounts and bookkeeping records for Perkins, or otherwise failed to follow statutory formalities for the formation of Perkins or the conduct of its affairs. In fact, other than the fact that Spinosa is the managing member of Perkins and has a significant ownership interest therein, Charming Charlie alleges no specific facts supporting its bare assertions that Spinosa was Perkins’ alter ego and all his decisions regarding it were personal decisions. The fact that a person is the managing member of a limited liability company and/or has a | ^significant ownership interest therein does not in itself make that person liable for its debts. See La. R.S. 12:1320(B); also see Terrebonne Concrete, 76 So.3d at 508.

Further, the petition’s allegations also fail to state a cause of action for fraud inasmuch as they are very broad and con-clusory. Fraud must be plead with specificity. See La. C.C.P. art. 856. Although the petition alleges that Spinosa executed the lease on behalf of Perkins, as its authorized agent and managing member, there is no allegation that he was the individual who negotiated the terms of the lease with Charming Charlie, nor that he personally made any representations or misrepresentations to Charming Charlie. The broad, conclusory allegations of the petition were insufficient to meet the requirement of specificity required to plead a cause of action for fraud.

When stripped of its conclusory allegations, the petition contains no allegations setting forth a cause of action against Spi-nosa individually. Hence, the district court correctly sustained the exception of no cause of action as to the claims against Spinosa individually, and that portion of the district court judgment will be affirmed.

However, La. C.C.P. art. 934 mandates that when the grounds pleaded by the peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception shall order amendment of the petition within a delay set out by the court. Leboeuf v. Wal-Mart Stores, Inc., 04-2260 (La.App. 1st Cir.4/5/06), 934 So.2d 790, 796, writ denied, 06-1070 (La.6/23/06), 930 So.2d 987. In the instant case, where the allegations of the petition are conclusory and fail to specify the acts that establish a cause of action against Spinosa, there is |0a possibility that the grounds for the exception of no cause of action could be removed by amendment. Therefore, that portion of the district court judgment dismissing Spi-nosa from the suit must be reversed and this matter remanded to allow Charming Charlie an opportunity to amend its petition. See La. C.C.P. art. 934; Leboeuf, 934 So.2d at 797.

CONCLUSION

For the above reasons, that portion of the district court judgment sustaining the peremptory exception raising the objection of no cause of action as to the claims against Joseph T. Spinosa is affirmed. That portion of the judgment dismissing Joseph T. Spinosa from this suit is reversed. Further, this matter is remanded to the district court with instructions that the court issue an order to Charming Charlie, Inc. to amend its petition, if possible, to state a cause of action against Spi-nosa, individually, within a reasonable time delay pursuant to La. C.C.P. art. 934, con-

sistent with the views expressed herein. All costs of this appeal are assessed to Charming Charlie, Inc.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH INSTRUCTIONS.

      . Charming Charlie originally sought review of the district court's judgment by filing a writ application with this Court. This Court granted the application for the limited purpose of remanding this case to the district court to grant Charming Charlie an appeal from this final appealable judgment in accordance with In Re Howard, 541 So.2d 195 (La.1989) (per curiam). See Charming Charlie, Inc. d/b/a Charming Charlie v. Perkins Rowe Associates, L.L.C. and Joseph T. Spinosa, 11-1382 (La.App. 1st Cir.9/12/11) (unpublished).

      . In the instant case, Spinosa attached an affidavit and other exhibits to his memorandum in support of his peremptory exception. In brief, Charming Charlie asserts that the district court should not have considered these exhibits in determining the merits of the exception. Generally, no evidence may be introduced to support or controvert the exception of no cause of action. La. C.C.P. art. 931. However, Louisiana jurisprudence recognizes an exception to this rule, whereby evidence admitted without objection may be considered by the court as enlarging the pleadings. Johansen v. Louisiana High School Athletic Association, 04-0937 (La.App. 1st Cir.6/29/05), 916 So.2d 1081, 1086. Nevertheless, this jurisprudential exception is not applicable in this case, because the exhibits were not “admitted” into evidence and, in any event, Charming Charlie objected in its opposition memorandum to any consideration of the exhibits. Furthermore, there is no indication the district court considered the exhibits in reaching its decision. Nor will this Court consider the exhibits in our de novo review of the petition.

      . Louisiana Code of Civil Procedure article 934 provides, in pertinent part, that "[wjhen the grounds of the objection pleaded by the peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court.”


author: PER CURIAM.

text:
    STATE of Louisiana v. Cody M. BEAUDETTE.
    No. 2012 KW 0871.
    Court of Appeal of Louisiana, First Circuit.
    July 13, 2012.

      Rachel Yazbeck, New Orleans, LA, for Relator Cody M. Beaudette.
    Walter P. Reed, District Attorney, for Respondent, State of Louisiana.
    Before KUHN, GUIDRY, and PETTIGREW, JJ.
   PER CURIAM.

12Relator seeks review of the denial of his motion to quash. For the following reasons, we deny the writ application.

Relator was charged by bill of information with two counts of possession with intent to distribute a Schedule I controlled dangerous substance (CDS) or its analogue in violation of La. R.S. 40:966(A)(1). Relator was alleged to have in his possession Naphthalen-l-yl-(l-pentylindol-B-yl) methanone [also known as l-Pentyl-8-(l-naphthoyl)indole or JWH-018] (synthetic marijuana) “or its analogue 4-Ethylna-phthalen-lyl-(Pentylindol-B-yl) methadone.” (JWH-210). The offenses were alleged to have occurred on March 16, 2011, and March 24, 2011. Relator filed a motion to quash, wherein he alleged that possession of JWH-210 was not illegal when he was arrested, as it was not included in Schedule I at the time of the offenses. After an evidentiary hearing, the trial court denied the motion.

Relator makes three claims. First, he contends the trial court failed to properly interpret La. R.S. 40:966(A)(1). Relator asserts that in order to enforce the language of the statute, the controlled dangerous substances or their analogues must be classified in Schedule I. Relator argues that the trial court erred in ruling that it was illegal for relator to possess with the intent to distribute JWH-210, without first deciding whether JWH-210 was listed in Schedule I.

La. R.S. 40:966(A)(1) provides that it shall be unlawful for any person knowingly or intentionally to possess with intent to distribute a CDS or CDS analogue classified in Schedule I. Prior to its amendment by 2011 La. Acts, No. 420, §§ 1 and 2, La. R.S. 40:964, Schedule I(C)(32)(c) included synthetic cannabinoids and specifically listed N aphthalen-l-yl-(l-pentylindol-3-yl) methanone [also known as l-Pentyl-3-(l-naphthoyl)indole or JWH-018].

|aLa. R.S. 40:961(8) defines a controlled substance analogue as a substance the chemical structure of which is substantially similar to the chemical structure of a controlled dangerous substance in Schedule I or II of R.S. 40:964, which has a stimulant, depressant, or hallucinogenic effect on the central nervous system that is substantially similar to or greater than the stimulant, depressant, or hallucinogenic effect on the central nervous system of a CDS in Schedule I or II.

At the hearing on the motion to quash, Dr. Mark Trudell, a state witness who was qualified as an expert in organic chemistry, explained the chemical makeup of the two compounds at issue (JWH-018 and JWH-210). He stated that they are in the same class of organic molecules, and the only real difference between the two compounds was a “two carbon substi-tuent.” According to Trudell, the difference did not substantially change the chemical structure of the two compounds, but affected the potency, and JWH-210 was more potent. Trudell stated both compounds were cannabinoids, and there was no doubt in his mind that the two compounds were substantially similar. Trudell also testified that the JWH stood for the initials of the chemist who developed these types of synthetic cannabinoids.

JWH-018 was listed in Schedule I at the time the instant crimes were allegedly committed, but JWH-210, the compound possessed by relator, was not listed in Schedule I. However, under La. R.S. 40:966, it was unlawful to possess with the intent to distribute analogues of controlled dangerous substances listed in Schedule I. According to Trudell, JWH-018 and JWH-210 were substantially similar to each other. Thus, JWH-210 is an “analogue” to JWH-018 as defined by La. R.S. 40:961. In reading the statutes together, the only reasonable conclusion is that the legislature intended that it be illegal to possess any Schedule I drug, as well as any substance with a substantially similar structure. Because JWH-210 was Ran analogue to JWH-018, possession of the substance at the time the instant crimes were allegedly committed was illegal. Thus, this claim lacks merit.

In his second claim, relator contends that charging relator with illegal possession of JWH-210 was an ex post facto application of the law, as the substance was not included in La. R.S. 40:964 at the time the alleged crime was committed. Relator further argues that because the statute did not include analogues of the listed synthetic cannabinoids in Schedule I until the statute was revised and enacted on July 15, 2011, it was clear that the legislature did not intend the original version of the statute to include analogues.

Ex post facto laws are prohibited by Article I, sections 9 and 10 of the United States Constitution and Article I, section 23 of the Louisiana Constitution. The focus of the ex post facto inquiry is whether a new law redefines criminal conduct or increases the penalty by which a crime is punishable. State v. Everett, 2000-2998 (La.5/14/02), 816 So.2d 1272, 1280.

Because JWH-210 was an analogue of JWH-018, it was illegal to possess at the time the crimes allegedly occurred. Thus, while the wording of the statute was amended to specifically include analogues of the listed synthetic cannabinoids in Schedule I in July 2011, analogues already were included based on a reading of all the involved statutes. It is irrelevant that the legislature subsequently amended the statute. Considering the above, there was no ex post facto application of the law in this case.

In his third claim, relator contends that La. R.S. 40:961(8) is unconstitutionally vague. He sets forth that the definition of the controlled substance analogue relies on the phrase “substantially similar,” but the legislature failed to define or quantify this term. Relator argues that the mere fact the State had to call an expert to testify that JWH-018 and JWH-210 were substantially [ .^similar proves that a person of common intelligence would not know that possession of JWH-210 was illegal. According to relator, lumping all drugs of a large class together with the language of “substantially similar” without clearly defining the necessary relationship between the chemical structure and the effect of the parent drug and its alleged analogue makes the law unconstitutionally vague and subject to arbitrary and discriminatory enforcement.

A statute is presumed to be valid and its constitutionality should be upheld whenever possible. State v. Thomas, 2004-0559 (La.1/19/05), 891 So.2d 1233, 1235; State v. Griffin, 495 So.2d 1306,1308 (La.1986). Louisiana criminal statutes must be “given a genuine construction, according to the fair import of their words, taken in their usual sense, in connection with the context, and with reference to the purpose of the provision.” La. R.S, 14:3.

It is well established that a vagueness challenge to a statute not involving First Amendment freedoms must be examined in the light of the facts of the case at hand and as applied to the particular defendant. Maynard v. Cartwright, 486 U.S. 356, 361, 108 S.Ct. 1853, 1857-58, 100 L.Ed.2d 372 (1988); United States v. Powell, 423 U.S. 87, 92, 96 S.Ct. 316, 319, 46 L.Ed.2d 228 (1975). Under the “void-for-vagueness” doctrine, a criminal statute must meet two requirements to satisfy due process: (1) adequate notice to individuals that certain contemplated conduct is proscribed; and (2) adequate standards for those charged with determining the guilt or innocence of an accused. The statute must not contain a standard so vague that the public is uncertain as to the proscribed conduct and the fact finder is unfettered by any legally fixed standards as to what is prohibited by the statute. See State v. Turner, 2005-2425 (La.7/10/06), 936 So.2d 89, cert. denied, 549 U.S. 1290, 127 S.Ct. 1841,167 L.Ed.2d 337 (2007).

| (¡Although La. R.S. 40:961(8) does not contain a definition of “substantially similar,” the words used in the statute may be easily understood when “taken in them usual sense” and “with reference to the purpose of the provision.” See La. R.S. 14:3. The statute at issue gives adequate notice to individuals that certain contemplated activity is proscribed and sets forth adequate standards for determining the guilt or innocence of the accused. Although the chemical makeup of the drugs are complex, if notice is clearly given that certain forms of synthetic marijuana are illegal, then it would be easily understood and adequate notice given that other substantially similar forms of synthetic marijuana are also illegal. This claim lacks merit.

Considering the above, it does not appear that the trial court erred in denying the motion to quash.

Accordingly, this writ application is DENIED.

WRIT DENIED.

      . The information regarding the chemical name of the analogue JWH-210 was taken from the bill of information.