author: CHARLES R. JONES, Chief Judge.

text:
    The HABITAT, INC. v. The COMMONS CONDOMINIUMS, LLC, the Commons Condominium Association, Inc., and Time Share Construction, LLC.
    No. 2011-CA-1384.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 11, 2012.

      John A. Cangelosi, King Krebs & Jur-gens, P.L.L.C., New Orleans, LA, for Plaintiff/App ellee.
    Richard A. Weigand, Elizabeth A. Wei-gand, Weigand & Levenson, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Chief Judge CHARLES R. JONES, Judge DANIEL L. DYSART, and Judge JOY COSSICH LOBRANO).
   CHARLES R. JONES, Chief Judge.

_JjThe Appellants, The Commons Condominiums, LLC, The Commons Condominium Association, Inc., and Time Share Construction, LLC, seek review of the judgment of the district court denying their motion for new trial. Finding that the district court did not err in denying the motion for new trial, we affirm the judgment of the district court. Furthermore, the peremptory exceptions of no right or cause of action, or in the alternative, peremptory exception of nonjoinder of indispensable parties of the Appellants, are denied. Lastly, the motion to dismiss the exceptions of the Appellee, The Habitat, Inc., is denied as moot.

The Commons Condominiums, LLC, (“the CC”) owned a condominium building in Orleans Parish, wherein The Habitat, Inc. (“The Habitat”), owned condominium unit D. Condominium owners within said building were members of The Commons Condominium Association, Inc. (“the Association”). The instant matter arises out of renovations that occurred within the condominium building ^allegedly at the direction of the CC and its contractor, Time Share Construction, LLC. (“Time Share”).

In April 2007, The Habitat filed its petition for damages against the Appellants asserting causes of action for damages to unit D, and for damages to The Habitat’s interest in the common elements and limited common elements within the condominium building. The Habitat pleaded the following facts:

1.) The CC was a developer that purchased the condominium building from The Habitat in October 2003 by Act of Credit Sale and Mortgage;
2.) After a condominium regime was established, the CC began to sell condominium units within the building;
3.) The CC agreed to convey to The Habitat a third floor unit, unit D, within the Act of Credit Sale. The CC subsequently entered into a building contract with Time Share;
4.) The CC and Time Share are related entities with similar or identical owners;
5.) Time Share was to demolish, renovate and construct a portion of the interior and exterior of the condominium building, and construct a penthouse, a pool and a terrace on the roof building for use by unit E of the condominium building;
6.) In February 2006, The Habitat took possession of unit D and began renovating the unit. The renovations were completed in May 2006, at which time The Habitat began occupying the unit;
7.) After occupying unit D, The Habitat discovered that certain work completed by the CC and/or Time Share was defective, incomplete or completed in a shoddy fashion. Said defects caused damages to unit D, the common elements and limited common elements of the condominium building;
|¾8.) The work performed by the CC and/or Time Share caused and continues to cause damages to unit D, and to the common elements and limited common elements of the condominium building; and
9.) The Habitat further alleged that pursuant to the terms of the Public Offering Statement filed by the CC, the Board of Directors of the Association is still controlled exclusively by the CC because the CC still owns a unit in the condominium building.

In its suit against the Appellants, The Habitat raised claims of breach of fiduciary duty and breach of warranties to deliver unit D, the common elements and the limited common elements of the building free of vices and/or defects. The Habitat alleged that the CC is liable to The Habitat and the Association for damages to the units in the building, the limited common elements and to the common elements as a result of the work completed by the CC in unit D and on the roof. The Habitat further alleged that the CC is in default of its credit sale and mortgage agreement with The Habitat. Lastly, The Habitat averred that the Appellants were solidarily liable to The Habitat for damages to unit D and to the limited common elements and the common elements of the building.

Service of the petition and citation on the Appellants was made on Thomas B. Bowes, the registered agent for service of process for each individual entity, in July 2007. The Appellants did not file an answer to the petition; thus, The Habitat obtained a preliminary default judgment against the Appellants in February 2008, which was later confirmed in late March 2008. Pursuant to the March 2008 judgment, The Habitat was awarded $517,576.52 in damages. The Appellants were |4neither served with notice of the preliminary default, nor with the confirmation of the default judgment. Subsequently, The Habitat filed an ex parte motion to amend judgment, which was granted by the district court. The judgment was amended to correct the spelling of the names of the Appellants in the caption and body of the judgment.

On May 3, 2011, counsel for the Appellants filed a motion to enroll and a request for notice of trial and judgments. On the same date, The Habitat filed two ex parte motions: a motion to supplement the record, and a motion for second amended judgment. The district court, on May 4, 2011, granted the motion to enroll of the Appellants, and granted the ex parte motion to supplement the record of The Habitat. The record was supplemented with a certificate required by La. C.C.P. art. 1702.1 for default judgments, and an affidavit of correctness that was executed by Gerald P. Webre, the director and president of The Habitat. In approximately mid-May of 2011, the district court granted the ex parte motion for second amended judgment of The Habitat. Thus, the confirmed default judgment | Bwas amended to include the date of the preliminary default “February 11, 2008”, and to remove wording that indicated that the default judgment confirmation hearing was conducted in open court.

The Appellants also filed a motion for an expedited hearings [sic], and for expedited issuance of a notice of signing of judgment. While the district court denied the motion for expedited hearings, the court did order that the notices of signing of judgment for the confirmed default judgment, the amended judgment, and the second amended judgment be issued.

The Appellants also filed a motion to strike pleadings, and a motion to vacate orders granting the ex parte motions to supplement the record and motion for second amended judgment of the district court. The motions were deemed moot by the district court. Thereafter, the Appellants filed a motion for new trial, which the district court denied. The Appellants timely filed the instant appeal and raise five (5) assignments of error:

1. Whether the district court erred in rendering a judgment confirming the preliminary default on March 27, 2008, when The Habitat failed to prove a prima facie case;
2. Whether the district court erred in granting The Habitat’s Motion to Supplement the Record allowing The Habitat to cure a fatal defect by entering the certificate required by La. C.C.P. art. 1702.1, which was not filed when The Habitat sought to confirm the preliminary default;
3. Whether the district court erred in granting The Habitat’s Motion for Second Amended Judgment;
|fi4. Whether the district court erred in denying the Appellants’ Motion for New Trial; and
5. Whether The Habitat properly filed a derivative suit for damages to the common and limited common elements of the condominium building.

We note that in the motion for appeal of the Appellants, they state that they seek review of the judgment of the district court denying their motion for new trial; however, the assignments of error raised by the Appellants also indicate that they seek to challenge the original judgment of the district court which confirmed the default judgment. The denial of a motion for new trial is generally a non-appealable interlocutory judgment. Nevertheless, appellate courts may consider interlocutory judgments as part of an unrestricted appeal from a final judgment. See Miller v. Chicago Ins. Co., 320 So.2d 134, 136 (La.1975). In the matter sub judice, it is evident from the assignments of error raised by the Appellants that they also intended to appeal the judgment of the district court which confirmed the default judgment and its amendments. The Appellants neglected to declare that they also sought to appeal the original judgment of the district court which confirmed the default judgment in their motion for appeal. We will not dismiss this appeal for this technicality because the Louisiana Supreme Court has held that appeals are favored in the law and must be maintained wherever possible. See Emmons v. Agricultural Insurance Company, 245 La. 411, 158 So.2d 594 (La.1963).

In the first assignment of error, the Appellants argue that the district court erred in rendering a judgment confirming the preliminary default because The Habitat failed to prove a prima facie case. The Appellants argue that there were no 17contracts attached to The Habitat’s motion to confirm default judgment showing that the CC or Time Share contracted to perform any work for The Habitat on unit D, or on the common elements. The Appellants further argue that the contractual relationship between the Habitat and the Appellants was not established by sworn testimony. The Appellants lastly argue that the document submitted by Marc J. Dahlman, the construction expert of The Habitat, is not the sworn testimony of an expert.

The Habitat argues that the record illustrates that it introduced evidence sufficient to sustain its burden of proving a prima facie case on the claims raised, and that it fully complied with the requirements of articles 1702 and 1702.1, which are applicable to the confirmation of default judgments. The Habitat argues that pursuant to the requirement of art. 1702.1, it had a certification of counsel that verified that its claims against the Appellants arise out of a conventional obligation, indicated the date and type of service made on all the Appellants and the date the preliminary default was entered. It argues that the Clerk of the Civil District Court verified the certificate to confirm that the record had been examined and that no answer or other opposition had been filed in response to the Petition. Thus, its certificate met the requirements of 1702.1. The Habitat also argues that art. 1702 neither requires that The Habitat attach contracts to its motion to confirm nor have sworn testimony. The Habitat additionally argues that Mr. We-bre submitted a sworn affidavit wherein he attested to and itemized the damages The Habitat sustained or incurred as a result of the actions of the Appellants. Lastly, The Habitat argues that the district court initially denied its motion to confirm judgment of default finding that The Habitat submitted insufficient evidence to [^establish its prima facie case. Thus, The Habitat argues that the district court ensured that it proved its prima facie case before confirming the preliminary default.

The Louisiana Supreme Court has explained that the standard of review for default judgments is the manifest error standard:

[I]n reviewing default judgments, the appellate court is restricted to determining the sufficiency of the evidence offered in support of the judgment. Bordelon v. Sayer, 01-0717, p. 3 (La.App. 3 Cir. 3/13/02), 811 So.2d 1232, 1235, writ denied, 02-1009 (La.6/21/02), 819 So.2d 340. This determination is a factual one governed by the manifest error standard of review. Id.

Arias v. Stolthaven New Orleans, L.L.C., 08-1111, p. 5 (La.5/5/09), 9 So.3d 815, 818. Our Court has further explained that:

“... the plaintiff must present competent evidence that convinces the court that it is probable that he would prevail on a trial on the merits.” Thibodeaux v. Burton, 538 So.2d 1001, 1004 (La.1989). The plaintiff must establish the elements of a prima facie case as fully as though each allegation in the petition had been denied. Orleans Sheet Metal Works and Roofing, Inc. v. Landis Company, Inc., 96-0029 (La.App. 4 Cir. 7/24/96), 678 So.2d 73, 74.

Garco, Inc. v. Rob’s Cleaning & Powerwash, Inc., 08-1249, p. 6 (La.App. 4 Cir. 4/22/09), 12 So.3d 386, 390, writ denied, 09-1114 (La.9/4/09), 17 So.3d 965.

The record before the Court shows that attached to the motion to confirm the default judgment was a spreadsheet itemizing the building construction costs incurred by The Habitat which totals $155,707.40, and the costs incurred by The Habitat for incomplete or defective construction and maintenance totaling $361,869.12. The spreadsheet indicates that the total amount of damages incurred |nby the Habitat is $517,576.52. The spreadsheet also refers to the credit sale and mortgage at issue between the parties as though it is an attachment. However, in the record before us, a copy of the credit sale and mortgage is not attached. Also attached to the motion were the following: a letter sent from Mr. Dahlman to Mr. Webre; the curricula [sic] vitae of Mr. Dahlman; and the report of Mr. Dahlman. The report of Mr. Dahlman includes his assessment of invoices The Habitat paid for construction costs for the condominium building, and a line item breakdown of various damages within the condominium building including damages to the interior of unit D and the following common elements and limited common elements:

• roofing and roofing structure
• pool leaks & overflow
• termite infestation
• exterior completion
• garage completion
• hallways/stairways/entrance
• elevator
• plumbing and waste, and
• A/C Unit on Platform

The report also includes an assessment of future costs to repair defects and damages.

|1flThe Habitat averred that its demand against the Appellants was based on a conventional obligation. Pursuant to La. C.C.P. art. 1702(B)(1), when a plaintiff seeks to confirm a default judgment based on a conventional obligation, the affidavits and exhibits annexed to the demand that contain “facts sufficient to establish a pri-ma facie case shall be admissible, self-authenticating, and sufficient proof of such demand.” It is up to the discretion of the district court to determine whether additional evidence in the form of oral testimony is required before entering judgment. La. C.C.P. art. 1702(B)(1). We have recognized that sections (B)(1) and (2) of 1702 contain exceptions to the general rule of inadmissible evidence, including inadmissible hearsay rules. Goldfinch v. United Cabs, Inc., 08-1447, p. 5 (La.App. 4 Cir. 5/13/09), 13 So.3d 1173, 1178; Hall v. Folger Coffee Co., 02-0920, p. 13 (La.App. 4 Cir. 10/1/03), 857 So.2d 1234, 1244 writ denied, 03-1756 (La.10/17/03), 855 So.2d 762 and writ denied, 03-3416 (La.6/25/04), 876 So.2d 827. In the instant matter and under the less restrictive evidentiary standards of art. 1702, we do not find that the district court manifestly erred in granting the default judgment of The Habitat. This assignment of error is without merit.

We will address the second and third assignments of error of the Appellants together as these assignments both relate to the granting of ex parte motions of The Habitat by the district court. The second assignment of error of the Appellants raises the argument that the district court erred in granting The Habitat’s ex parie motion to supplement the record, thereby allowing The Habitat to cure a fatal defect in the confirmation of the default judgment. The Appellants argue that because The Habitat did not file the certificate as required by La. C.C.P. art. J_ul702.1, when it sought to confirm the preliminary default judgment, it was precluded from subsequently supplementing the record with the required certificate. The Appellants argue that the certificate mentioned in La. C.C.P. art. 1702.1 must be in the record at the time the default is confirmed in order for the judgment confirming the default to be rendered, and cannot be filed after the judgment confirming the default has been rendered.

A district court’s ruling on supplementing the record is reviewed under an abuse of discretion standard. St. Julian v. Wiltz, 09-323, p. 4 (La.App. 3 Cir. 10/7/09), 21 So.3d 449, 453.

Our Court has held that where a plaintiff has not filed an article 1702.1 certificate at all, the failure to file the certificate is fatal to the confirmation of the default judgment; however, our Court has never held that a record cannot be supplemented to include an article 1702.1 certificate prior to the confirmation of the default judgment being challenged. See Am. Tempering, Inc. v. Crasto Glass & Mirror Co., Inc., 487 So.2d 116, 117 (La.App. 4 Cir.1986). The failure of The Habitat to file its certification at the time it sought the confirmation of the preliminary default judgment may have been fatal to the confirmation of the default judgment if the Appellants had filed an answer or opposition prior to the confirmation of the default judgment. However, that is not what occurred in the instant matter as the Appellants waited four (4) years to make an appearance of record in this matter. Thus, we do find that the district court abused its discretion in granting the motion to supplement the record.

In their third assignment of error, the Appellants argue that the district court erred in granting the ex parte motion for second amended judgment of The Habitat |12in order to cure a fatal defect in the judgment of March 2008. As previously noted, in November 2008, the district court amended the confirmed default judgment. The Appellants argue that although The Habitat alleged in its motion that it sought to alter the “phraseology” of the judgment of default to show that the preliminary default was entered on February 11, 2008, and to delete all references to the hearing on the confirmation of the default judgment being held in open court, The Habitat actually sought to make substantive changes to the judgment that are not allowed under La. C.C.P. art. 1951.

“A decision of the district court to grant a Motion to Amend may not be disturbed absent an abuse of discretion.”

Patterson v. Fed Ex Ground Package Sys., Inc., 08-1297, p. 4 (La.App. 5 Cir. 3/24/09), 10 So.3d 794, 796; Roberts v. Murphy Oil Corp., 577 So.2d 308, 313 (La.App. 4 Cir.1991), writ denied, 580 So.2d 670 (La.1991) and writ denied, 580 So.2d 670 (La.1991) and writ denied, 580 So.2d 673 (La.1991). Furthermore, the First Circuit explained in Caldwell v. Leche, 08-0790, p. 6, n. 8 (La.App. 1 Cir. 9/23/08) 994 So.2d 679, 682, the definition of a substantive amendment:

A judgment may be amended by the court where the amendment takes nothing from or adds nothing to the original judgment. But an amendment to a judgment which adds to, subtracts from, or in any way affects the substance of the judgment, is considered a substantive amendment.

Furthermore, “[t]he jurisprudence is replete with numerous cases wherein Louisiana appellate courts have approved the use of amendments under this article (La. C.C.P. art. 1951) where the mistake or omission is evident from the record.” Trahan v. City of Crowley, 08-1394, p. 3 (La.App. 3 Cir. 4/1/09), 7 So.3d 122,124, writ denied, 09-0963 (La.6/19/09), 10 So.3d 739 and writ denied, 09-1042 (La.6/19/09), 10 So.3d 746.

In light of the holdings cited above, we find that the amendments sought by The Habitat adding the date the preliminary default was entered, and removing the language stating the hearing was held in open court, will not add to or subtract from the substance of the judgment. These changes only reflect the manner in which the default judgment was confirmed; thus, the mistakes and omissions at issue are evident from the record. Additionally, these changes do not make the judgment at issue more adverse to the Appellants than it already was.

Lastly, the Appellants argue that The Habitat was required to serve them with the motions as required by La. C.C.P. art. 1312. They argue that in light of the fact that there was no counsel of record for them, The Habitat was still required by the articles to serve a copy of its motions upon the Appellants through their registered agent for service of process, Mr. Bowes.

The district court may grant an ex parte motion where the mover is clearly entitled to relief pursuant to La. C.C.P. art. 963, which provides:

If the order applied for by written motion is one to which mover is clearly entitled without supporting proof, the court may grant the order ex paHe and without hearing the adverse party.
If the order applied for by written motion is one to which the mover is not clearly entitled, or which requires supporting proof, the motion shall be served on and tried contradictorily with the adverse party.

114Neither of these motions had to be tried contradictorily and therefore served upon the Appellants because The Habitat was clearly entitled to the relief sought in each motion. There is no law stating that a motion to supplement the record and a motion to amend must be set for contradictory hearing. Furthermore, the relief sought by The Habitat was relief to which it was clearly entitled to by the district court, which had already held that The Habitat sustained its burden of proof to confirm the default judgment.

Additionally, we note that the Third Circuit has held that service of pleadings upon a defendant who does not timely respond to a petition defeats the default judgment process. The Third Circuit explained as follows in Ganey v. RMH Cable, Inc., 99-460, pp. 7-8 (La.App. 8 Cir. 10/18/99), 745 So.2d 123, 127, writ denied sub nom., Ganey v. RMH Cable, Inc., 99-3353 (La.2/4/00), 754 So.2d 228:

The intent of the default judgment procedure in either case is to afford a litigant a remedy where a defendant fails to timely respond to a petition. To require service of the motion for preliminary default or of pleadings associated with the confirmation process would defeat that remedy. A defendant is generally placed on notice by service of citation and the petition that he has a limited amount of time in which to .respond to the petition and that if he does not timely respond, a judgment may be rendered against him without further notice. The fact that the defendant might waive the citation which contains this warning should not defeat the plaintiff’s exercise of his right to proceed absent the defendant’s presence.

Under the circumstances of this case, we cannot say the district court abused its discretion in granting the ex parte motions, especially where the Appellants | ^waited four years to make an appearance of record. Thus, we find that these assignments of error are without merit.

The fourth assignment of error raised by The Appellants is that the district court erred in denying their motion for new trial for the following reasons:

1.there was no notice of the signing of the judgment of default;
2. the default judgment was obtained by ill practice;
3. the ex parte motions of the Habitat were not served upon the Appellants;
4. the ex parte motion to supplement the record sought relief to where there is a question of law and The Habitat is not clearly entitled;
5. the ex parte motion for second amended judgment sought substantive changes to the judgment;
6. The Habitat failed to prove a prima facie case at the hearing of the confirmation of the default judgment; and
7. The Habitat did not follow the proper procedure when confirming the default judgment because the certificate required by La. C.C.P. art. 1702.1 was not timely filed.

As we have previously discussed the arguments raised by the Appellants regarding whether the district court erred in holding that The Habitat proved its prima facie case, whether the district court erred in granting the ex parte motions, and whether the district court erred in allowing The Habitat to supplement the record with the late filing of their article 1702.1 certificate in assignments of error one through three, we pretermit discussion of issues three (3) through seven (7) listed directly above under this assignment of error.

l ifjA district court has “wide discretion when deciding whether to grant a new trial.” Robertson v. Lafayette Ins. Co., 11-0975, p. 8 (La.App. 4 Cir. 2/8/12), 85 So.3d 186 (citing La. C.C.P. art. 1973). Therefore, we review the denial of a new trial by applying the abuse of discretion standard. Id. (citing Dowl v. Redi Home Health Care Assn., 04-1182, p. 7 (La.App. 4 Cir. 12/22/04), 917 So.2d 434, 440). Furthermore, the Louisiana Supreme Court has explained:

When the trial judge has refused the defendant a new trial in a default judgment case, the appellate court should not disturb that ruling, regardless of the fact that the defendant may urge in his motion for a new trial that he has a meritorious defense to the merits, unless the defendant has shown to the trial judge a good excuse for his failure to appear to defend the suit.

DeFrances v. Gauthier, 220 La. 145, 148, 55 So.2d 896, 897 (La.1951).

The Appellants argue that they are entitled to a new trial pursuant to La. C.C.P. articles 1972(1) and 1973, which provides mandatory and discretionary grounds upon which a motion for new trial may be granted, respectively. Article 1973 states that a new trial may be granted in any case if there is a good ground therefor, except as otherwise provided by law. The Appellants argue that a good ground has been recognized by Louisiana courts where the enforcement of the l17judgment would be inequitable and unconscionable. The Appellants further argue that a showing that a judgment was obtained by fraud or ill practice is an adequate good ground for granting a motion for new trial. The Appellants argue that the confirmation of the default judgment was obtained by ill practice because The Habitat did not have the Appellants served with a notice of the signing of the judgment of default.

The Appellants argue that there was no notice of the signing of the judgment of default. They are correct. Notice was not issued to The Appellants that the judgment of default was rendered. Article 1913 of the Louisiana Code of Civil Procedure requires that notice of the signing of a default judgment should be issued to defendants, and it states in pertinent part:

C. Notice of the signing of a default judgment against a defendant on whom citation was served personally, and who filed no exceptions or answer, shall be mailed by the clerk of court to the defendant at the address where personal service was obtained or to the last known address of the defendant.

However, we have held that the failure to serve notice of the signing of an otherwise valid default judgment against a defendant on whom a proper domiciliary service of process has been made does not have the retroactive effect of changing such a judgment into one which is null. Anderson v. Quincy, 262 So.2d 518, 519 (La.App. 4 Cir.1972). Indeed, the Appellants were served with the petition personally, and the citation form itself warns the defendant that if he, she, or it does not comply with the demand contained in the petition, the defendant must:

[fjile an answer or other legal pleading in the office of the Clerk of this Court, Room 402, Civil Courts Building, |1S421 Loyola Avenue, New Orleans, LA, within (15) days after the service hereof under penalty of default.

Thus, the default judgment and the subsequent confirmation of the default judgment cannot be nullified as a result of the failure of The Habitat to serve notice of the judgment of default upon the Appellants.

Failure to serve the notice of the default judgment does affect the length of the delay within which a new trial can be applied for under La. C.C.P. art. 1974, and the time within which an appeal can be taken. In the matter sub judice, the delay period for the Appellants to file their motion for new trial and for appeal did not commence to run until May 18, 2011, when the Appellants were served with notice of the judgments rendered in this matter.

Regarding the claims of the Appellants that The Habitat engaged in ill practice in this matter, our Court has held that the proper procedural vehicle to challenge a judgment allegedly obtained by ill practice is to file a separate action for nullity, pursuant to La. C.C.P. art. 2004 , not a motion for new trial. Viso v. Favie, 502 So.2d 1130, 1131 (La.App. 4 Cir.1987), writ denied, 503 So.2d 465 (La.1987). See also Belle Pass Terminal, Inc. v. Jolin, Inc., 01-0149, p. 5 (La.10/16/01), 800 So.2d 762, 766. Thus, the filing of a motion for new trial in this matter was procedurally improper to raise a claim of ill practice. We find that this assignment of error is without merit.

| i¡)The fifth assignment of error raised by the Appellants is that the district court erred in allowing The Habitat to file a derivative suit for damages to the common and limited common elements of the condominium building. They argue that The Habitat did not file a procedurally correct or legally valid derivative action in compliance with Louisiana Code of Civil Procedure articles 611, et seq. The Appellants argue that The Habitat, in its petition, pleaded that it was suing the Appellants on behalf of itself and the Association for the damages caused to the Association by the CC and/or Time Share. The Appellants argue that The Habitat did not have the authority to sue on behalf of the Association, and that The Habitat does not allege it had this authority. The Habitat did not have the right of action to sue defendants directly for the alleged damages to the common elements as it did in its Petition, under the law governing derivative actions. The Appellants argue that the claims The Habitat seeks to bring may only be brought in a derivative action to enforce the right on behalf of the corporation or unincorporated association. Lastly, the Appellants argue that The Habitat failed to join the other condominium owners of the CC who are indispensable parties.

The crux of the argument of The Habitat is that it did not file a derivative action at all. The Habitat argues that when its petition was filed, the Association was under the exclusive control of the entities of the Appellants of which Mr. Bowes — the registered agent for service of process for each Appellant — was the sole member. Thus, The Habitat argues that there was no basis for requiring The Habitat to sue the Association in a derivative capacity because the Association was the alter ego of Mr. Bowes. The Habitat further argues that with regard to the common elements of the condominium, it was clear from its petition that the | gnHabitat sought damages for its own interest in the common elements and the limited common elements of the condominium building.

Furthermore, The Habitat argues that this particular assignment of error of the Appellants constitutes an affirmative defense to the causes of action stated in its petition. Thus, The Habitat argues that these defenses had to be raised in an answer, pursuant to La. C.C.P. art. 1005, which the Appellants did not file. Thus, The Habitat argues the affirmative defenses available to the Appellants were waived due to their failure to file an answer.

Upon review of the petition for damages, The Habitat alleges “[t]his action is being asserted on behalf of Habitat and on behalf of the Association for the damages caused to the Association by Commons and/or TimeShare [sic].” [Emphasis added]. As previously stated, however, The Habitat admits that it was not filing a derivative suit, but only sought damages for itself. It argues in its brief that “all damages sought by The Habitat were intended to recompense “The Habitat” for damages to unit D, the common elements and the limited common elements of the building. Indeed, the prayer contained in the petition of The Habitat evidences that The Habitat only sought damages for itself as it states that The Habitat prays for a judgment to be rendered “in favor of [The] Habitat” and “awarding [The] Habitat all amounts due” pursuant to its claims. The damages itemized in the report of Mr. Dahlman indicate that the costs itemized in his report, with the exception of future costs and repairs, were for amounts already expended by The Habitat for the condominium building.

As discussed previously in the first assignment of error, the report of Mr. Dahl-man detailed that there were damages sustained to the common elements and | ⅞1 limited common elements of the building, and that The Habitat incurred specific costs associated with the condominium building. While we find that the verbiage of the petition of The Habitat is inconsistent, the Habitat demonstrated to the district court that it carried its burden of proof as to its own damages. Thus, we find that this assignment of error is without merit.

Lastly, the peremptory exceptions of no right or cause of action, or in the alternative, peremptory exception of nonjoinder of indispensable parties of the Appellants, are denied. The Habitat’s motion to dismiss the exceptions is denied as moot.

DECREE

For the foregoing reasons, the judgment of the district court is affirmed. The peremptory exceptions of no right or cause of action, or in the alternative peremptory exception of nonjoinder of indispensable parties of The Commons Condominiums, LLC, The Commons Condominium Association, Inc., and Time Share Construction, LLC, are denied. The motion to dismiss of The Habitat, Inc., is rendered moot.

AFFIRMED; EXCEPTIONS OF NO RIGHT OF ACTION OR CAUSE OF ACTION OR IN THE ALTERNATIVE EXCEPTION OF NONJOINDER OF INDISPENSABLE PARTIES DENIED; MOTION TO DISMISS MOOT

      . Any reference to the Appellants herein shall refer to The Commons Condominiums, LLC, The Commons Condominium Association, Inc., and Time Share Construction, LLC, collectively.

      . The Habitat filed a motion to dismiss the exceptions of the Appellants.

      . Unit E of the condominium building is owned by the CC.

      . In March 2008, The Habitat submitted two proposed judgments to the district court to certify the default judgment. The first proposed judgment was denied by the district court for lack of supporting proof of a prima facie case; however, the second proposed judgment was granted by the district court.

      . La. C.C.P. art. 1702.1 provides:
      A. When the plaintiff seeks to confirm a default judgment as provided in Article 1702(B)(1) and (C), along with any proof required by law, he or his attorney shall include in an itemized form with the motion and judgment a certification that the suit is on an open account, promissory note, or other negotiable instrument, on a conventional obligation, or on a check dishonored for nonsufficient funds, and that the necessary invoices and affidavit, note and affidavit, or check or certified reproduction thereof are attached. If attorney fees are sought under R.S. 9:2781 or 2782, the attorney shall certify that fact and that a copy of the demand letter and if required, the return receipt showing the date received by the debtor are attached and that the number of days required by R.S. 9:2781(A) or 2782(A), respectively, have elapsed before suit was filed.
      B. The certification shall indicate the type of service made on the defendant, the date of service, and the date a preliminary default was entered, and shall also include a certification by the clerk that the record was examined by the clerk, including therein the date of the examination and a statement that no answer or other opposition has been filed.

      . Words and phrases such as "for the reasons orally assigned”, "READ” and "in open court” were removed from the default judgment.

      . There are also no exhibits before this Court.

      . La. C.C.P. art. 1312 provides in pertinent part:
      Except as otherwise provided in the second paragraph hereof, every pleading subsequent to the original petition shall be served on the adverse party as provided by Article 1313 or 1314, whichever is applicable.

      . "[E]ither case” in this opinion of the Third Circuit refers to civil and workers’ compensation matters.

      . La. C.C.P. art. 1972 provides in pertinent part:
      A new trial shall be granted, upon contradictory motion of any party, in the following cases:
      (1) When the verdict or judgment appears clearly contrary to the law and the evidence.
      (2) When the party has discovered, since the trial, evidence important to the cause, which he could not, with due diligence, have obtained before or during the trial.
      (3)When the jury was bribed or has behaved improperly so that impartial justice has not been done.
      La. C.C.P. art. 1973 provides, "[a] new trial may be granted in any case if there is good ground therefor, except as otherwise provided by law.”

      . La. C.C.P. art. 2004, entitled Annulment for vices of substance; peremption of action, provides:
      A. A final judgment obtained by fraud or ill practices may be annulled.
      B. An action to annul a judgment on these grounds must be brought within one year of the discovery by the plaintiff in the nullity action of the fraud or ill practices.
      C.The court may award reasonable attorney fees incurred by the prevailing party in an action to annul a judgment on these grounds.


source: Caselaw Access Project

author: HUGHES, J.

license: Public Domain

text:
    Leonard CARDENAS, III, Individually and on Behalf of his Minor Children, Cade Leonard Cardenas, and Cavan Michael Cardenas v. James L. MOORE.
    No. 2011 CA 1536.
    Court of Appeal of Louisiana, First Circuit.
    July 18, 2012.
    Nathan P. Fry, Baton Rouge, LA, for Appellants, Leonard Cardenas III, individually and on behalf of his minor children, Cade Leonard Cardenas, and Cavan Michael Cardenas.
    Guy Wall, Sara Lewis, New Orleans, LA, for Appellee James L. Moore.
    Before CARTER, GAIDRY AND HUGHES, JJ.
   HUGHES, J.

IgThis is an appeal from a judgment of the Eighteenth Judicial District Court that sustained an exception of res judicata, granted a motion for summary judgment on the same basis, and dismissed the claims of plaintiff/appellant, Leonard Cardenas III against defendant/appellee, James Moore. For the following reasons, we reverse and remand for further proceedings.

FACTS AND PROCEDURAL HISTORY

On January 17, 2007 Mr. Cardenas and his ex-wife, Ms. Belinda Moore Patín Cardenas (Belinda) entered into a stipulated judgment in the Family Court for East Baton Rouge Parish (Family Court) wherein the parties were awarded joint custody of their two minor children, with Mr. Cardenas designated the domiciliary parent. Belinda was given supervised visitation every other weekend from Friday to Sunday. Pursuant to the judgment, if Belinda was unable to exercise her visitation, her “family” could exercise her visitation on her behalf.

On Friday, December 28, 2007 Belinda’s father, Mr. James Moore, was visiting with his grandchildren at his home in Pointe Coupee Parish, pursuant to his daughter’s visitation rights, as set forth in the January 17, 2007 judgment. According to the visitation schedule, Mr. Moore was to return the children to Mr. Cardenas on Sunday, December 30, 2007 at 7 o’clock p.m. However, Mr. Moore refused to return the children until Tuesday, January 1, 2008.

On January 8, 2008 Mr. Cardenas filed a rule to terminate visitation, naming Belinda as defendant. The rule was based on multiple alleged | .¡violations of the January 17, 2007 judgment by both Belinda and Mr. Moore. In response, Mr. Moore and his wife filed a petition for intervention seeking joint custody of the minor children, or in the alternative, increased visitation.

A hearing was held and the court rendered an interim judgment, signed on March 10, 2008, wherein the court set visitation for Mr. Cardenas, Belinda, and the Moores. The court continued Mr. Cardenas’s motion for contempt and rule to terminate visitation rights.

On August 21, 2008 Mr. Cardenas filed a motion to render the interim judgment partially null, requesting that the visitation granted to the Moores in the interim judgment be terminated.

Thereafter, on January 19, 2011 a judgment was signed, vacating the interim judgment and dismissing with prejudice the Moore’s petition for intervention and Mr. Cardenas’s rule to terminate visitation and motion to render the interim judgment partially null.

On April 1, 2008 Mr. Cardenas filed a petition for damages in the Eighteenth Judicial District Court (District Court) alleging claims for damages as a result of Mr. Moore’s actions in refusing to return the children. Specifically, Mr. Cardenas alleged that he had suffered damages, including mental anguish and emotional distress as a result of Mr. Moore’s criminal actions during the period from December 30, 2007 to January 1, 2008. In response, Mr. Moore filed objections raising the exceptions of res judicata and no cause of action. Mr. Moore contended that a valid, final judgment had been rendered by the Family Court which precluded Mr. Cardenas from “re-litigating” the claims. Mr. Moore also filed a motion for summary _]4¡judgment, alleging that there were no genuine issues of material fact as to whether Mr. Cardenas was barred by res judicata.

A hearing was held on April 20, 2011. The court rendered judgment in favor of Mr. Moore, sustaining the exception of res judicata, granting the motion for summary judgment on that basis, and dismissing Mr. Cardenas’s claims with prejudice.

Mr. Cardenas appeals, and makes the following assignments of error:

1. The trial court was clearly wrong and committed reversible error by granting the defendant’s Exception of Res Judicata and Motion for Summary Judgment.
2. The trial court was clearly wrong and committed reversible error by failing to recognize Mr. Cardenas’s cause of action in tort.

LAW AND ANALYSIS

Res judicata is governed by LSA-R.S. 13:4231, which states that:

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

(Emphasis added.)

This statute explicitly applies only when there is a “valid and final judgment” between the parties. Official Comment (d) (1990) to LSA-R.S. 13:4231 explains the requirement of a “valid and final judgment,” stating, in pertinent part: “To have any preclusive effect a judgment must be valid, that is, it must have been rendered by a court with jurisdiction over subject matter and over parties, and proper notice must have been given.”

Jurisdiction is the legal power and authority of a court to hear and determine an action or proceeding involving the legal relations of the parties, and to grant the relief to which they are entitled. LSA-C.C.P. art. 1. Jurisdiction over the subject matter is the legal power and authority of a court to hear and determine a particular class of actions or proceedings, based upon the object of the demand, the amount in dispute, or the value of the right asserted. LSA-C.C.P. art. 2. A judgment rendered by a court that has no jurisdiction over the subject matter of the action or proceeding is void. LSA-C.C.P. art. 3.

Pursuant to Article V, § 16 of the Louisiana Constitution, district courts are courts of general jurisdiction and have original jurisdiction of all civil and criminal matters, while the Family Court is a court of limited jurisdiction, created by the legislature as authorized by Article V, § 18 of the constitution, which provides that “juvenile and family courts shall have | (-jurisdiction as provided by law.” In

LSA-R.S. 13:1401, the legislature specified the limitations of the jurisdiction of the Family Court, as follows:

A. There is hereby established the family court for the parish of East Baton Rouge, which shall be a court of record with exclusive jurisdiction in the following proceedings:
(1) All actions for divorce, annulment of marriages, claims for contributions made by one spouse to the education or training of the other spouse, establishment or disavowal of the paternity of children, spousal and child support, and custody and visitation of children, as well as of all matters incidental to any of the foregoing proceedings, including but not restricted to the issuance of conservatory writs for the protection of community property, the awarding of attorney fees in judgments of divorce, the cumulation of and rendering executory of spousal and child support, the issuance of writs of fieri facias and garnishment under judgments of the court for spousal and child support and attorney fees, jurisdiction of which was vested in the Nineteenth Judicial District Court for the parish of East Baton Rouge prior to the establishment of the family court for the parish of East Baton Rouge.
(2)(a) All actions between spouses or former spouses for partition of community property and property acquired pursuant to a matrimonial regime.
(b) All actions for the termination or modification of a matrimonial regime.
(c) All actions for the settlement and enforcement of claims arising from matrimonial regimes or the establishment thereof.
(d)All actions between former spouses seeking the enforcement of a judicial or contractual settlement of claims provided in this Subsection,
(3)All proceedings for writs of habeas corpus for the determination and enforcement of rights to the custody of minors or for the release of any person in actual custody in any case of which the family court has original jurisdiction.
B. The family court for the parish of East Baton Rouge has all such additional jurisdiction, power, and authority now or hereafter provided by law.

In his District Court petition, Mr. Cardenas seeks compensation for the damages he sustained as a result of Mr. Moore’s alleged intentional 17tortious acts. Mr. Cardenas argues that res judicata is inapplicable in this case, asserting that the Family Court does not have subject matter jurisdiction over his civil action. Mr. Moore, however, contends that because Mr. Cardenas’s claim for damages arose out of the same transaction or occurrence (i.e. Mr. Moore’s refusal to return the children timely) that was the subject matter of his rule to terminate visitation, the judgment dismissing those pleadings with prejudice bars any subsequent suit thereon. Mr. Moore further alleges that Mr. Cardenas’s civil action is “incidental” to the Family Court child custody and visitation proceedings and thus, within the subject matter jurisdiction of the Family Court.

The portion of LSA-R.S. 13:1401 that might provide the Family Court subject matter jurisdiction over Mr. Cardenas’s claim is found in Section A(l) and states:

All actions for divorce, annulment of marriages, claims for contributions made by one spouse to the education or training of the other spouse, establishment or disavowal of the paternity of children, spousal and child support, and custody and visitation of children, as well as of all matters incidental to any of the foregoing proceedings.

(Emphasis added.)

Thus, the issue before us is whether Mr. Cardenas’s district court tort action is “incidental” to the custody and visitation proceedings of the Family Court.

Incidental is defined as “[subordinate to something of greater importance; having a minor role.” Black’s Law Dictionary, 765 (7th ed.1999). Thus, the statute states that the Family Court has exclusive jurisdiction over all actions for custody and visitation of children, as well as over all matters subordinate to, or having a minor role in, the custody and |svisitation proceedings. Considering the language of the constitution and the statute, the laws regarding the Family Courts’ jurisdiction are clear, and unambiguously establish that family courts only have jurisdiction over the minor matters relative to child custody or visitation proceedings. When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature. LSA-C.C. art. 9.

Mr. Cardenas’s action for the damages he sustained as a result of Mr. Moore’s alleged intentional tortious acts is not “incidental” to the child custody and visitation action between Mr. Cardenas and Belinda, as contemplated by the statute. To hold otherwise would be to enlarge the limited jurisdiction of the Family Court beyond that specified by the legislature. See Bovia v. Ledig, 09-0900 (La.App. 1 Cir. 3/2/10), 36 So.3d 287, 288 (wherein this court concluded that the Family Court did not have subject matter jurisdiction over the property partition of the parties’ former domicile where the parties had children but were never married, even though the mother brought the partition proceeding against the father incident to the child custody and support proceedings between the parties.)

We conclude that the petition of Mr. Cardenas states a tort claim properly brought in the District Court, and not a cause of action “incidental” to a custody and visitation matter in the Family Court. While the same conduct may have given rise to incidental custody matters such as contempt of court and alteration of custody or visitation, the Family Court does not have subject matter jurisdiction to hear tort claims and is not empowered to grant a valid judgment addressing such claims. Thus, Mr. Cardenas’s tort claim cannot be barred by an exception of res judicata filed in the District [9Court. The trial court erred in maintaining the exception of res judicata and in granting summary judgment.

CONCLUSION

The judgment of the Eighteenth Judicial District Court is reversed and this matter is remanded to the District Court for further proceedings. All costs of this appeal are assessed to defendant/appellee, Mr. James L. Moore.

REVERSED AND REMANDED.

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

      . Although the judgment refers to Belinda’s time with the children as "visitation,” the time parents with joint legal custody share with their child is more properly described as a physical custody allocation of a joint custody plan, rather than visitation. See Cedotal v. Cedotal, 05-1524 (La.App. 1 Cir. 11/4/05), 927 So.2d 433, 436.

      . Mr. Moore filed exceptions, raising the objections of res judicata and no cause of action, and also re-urged the same exceptions in the form of a motion for summary judgment, arguing that there were no genuine issues of material fact as to whether Mr. Cardenas’s claims were barred by res judicata, or as to whether Mr. Cardenas had a valid cause of action. In the court’s oral reasons for judgment, the trial judge is clear that his ruling was based on his finding that Mr. Cardenas’s claims had been litigated to final judgment in the Family Court proceedings and were thus barred by res judicata:
      THE COURT: I’m ruling basically on what he has set forth in here, that the matter has already been handled in the East Baton Rouge case and those judgments over there terminating those Rules for Contempt and all but the prejudice seems to be a res judicata of these issues.
      MR. FRY: Do you want to rule now on the other elements, the no cause of action?
      THE COURT: I don’t need to. I don’t need to.

      . As previously stated, the trial court's judgment ruled only on the exception of res judi-cata and summary judgment urging res judi-cata. No ruling on the exception of no cause of action was made and therefore we will not address this assignment of error.

      . Louisiana Revised Statutes 13:1401 was subsequently amended by Acts 2010, No. 754, Section 2, effective January 1, 2011 to insert “and nonsupport,” in paragraph (A)(1).
      However the previous version, applicable at the time of the filing of this lawsuit, is used in this opinion.


author: CARTER, C.J.

text:
    LOUISIANA LAND ACQUISITION, LLC v. LOUISIANA DEPARTMENT OF ENVIRONMENTAL QUALITY.
    No. 2011 CA 2037.
    Court of Appeal of Louisiana, First Circuit.
    July 18, 2012.
    Timothy W. Hardy, V. Joyce Matthews, Baton Rouge, LA, for Plaintiff/Appellant, Louisiana Land Acquisition, LLC.
    Jackie M. Marve, Elliott B. Vega, Baton Rouge, LA, for Defendant/Appellee, Louisiana Department of Environmental Quality.
    Before CARTER, C.J., PARRO and HIGGINBOTHAM, JJ.
   CARTER, C.J.

12Louisiana Land Acquisition, LLC (“LLA”) appeals a judgment of the district court that affirmed the denial of a permit to LLA by the Louisiana Department of Environmental Quality (“DEQ”). For the following reasons, we vacate the judgment of the district court and dismiss this appeal for lack of subject matter jurisdiction.

FACTS AND PROCEDURAL HISTORY

LLA petitioned the district court for judicial review of DEQ’s denial of a permit to LLA for construction and operation of a solid waste landfill in East Baton Rouge Parish. In its petition, LLA set forth that DEQ had denied it the requested permit and then denied its request for an adjudicatory hearing pursuant to Louisiana Revised Statutes section 30:2024 A. LLA requested judicial review pursuant to Louisiana Revised Statutes sections 30:2050.21 and 49:964. The district court exercised appellate jurisdiction pursuant to Section 2050.21, reviewed the permit denial pursuant to the applicable provisions of Section 964, and affirmed DEQ’s decision. This appeal followed.

SUBJECT MATTER JURISDICTION

In its appellate brief, DEQ asserts that subject matter jurisdiction is lacking in this case, but notes that it is not reurging the declinatory exception raising the objection of lack of subject matter jurisdiction asserted and denied in the district court. A court’s power to grant relief is premised upon its subject matter jurisdiction over the case or controversy before it, which cannot be waived or conferred by consent. Wilson v. City of Ponchatoula, 09-0303 (La.10/9/09), 18 So.3d 1272, 1272. In fact, before considering the merits in any appeal, appellate courts have a duty to examine subject matter |;¿jurisdiction. Boudreaux v. State, Dept, of Transp. and Development, 01-1329 (La.2/26/02), 815 So.2d 7,13.

District courts are granted appellate jurisdiction to review administrative decisions only as provided by the legislature or the constitution. Metro Riverboat Associates, Inc. v. Louisiana Gaming Control Board, 01-0185 (La.10/16/01), 797 So.2d 656, 660. Thus, a threshold issue is whether the district court had subject matter jurisdiction over LLA’s appeal of DEQ’s permit denial. If the district court lacked jurisdiction to adjudicate the appeal, this court also lacks jurisdiction, save to correct the error of the lower court in entertaining the appeal. Metro Riverboat Associates, Inc., 797 So.2d at 662-63.

In this case, LLA invoked, and the district court exercised, appellate jurisdiction pursuant to Section 2050.21, which provides:

A. An aggrieved person may appeal devolutively a final permit action, a final enforcement action, or a declaratory ruling only to the Nineteenth Judicial District Court. A petition for review must be filed in the district court within thirty days after notice of the action or ruling being appealed has been given. The district court shall grant the petition for review.
B. The district court shall promulgate rules of procedure to be followed in taking and lodging appeals.
C. The department shall not be required to file an answer to the petition for review.
D. In matters not submitted to the division of administrative law, Department of Civil Service, the department shall transmit to the reviewing court the original or a certified copy of the entire record of the decision or action under review within sixty days after service of the petition on the department, or within further time allowed by the court. By stipulation of all parties to the review proceedings, the record may be shortened. A party unreasonably refusing to stipulate to limit the record may be taxed by the court for the additional costs. The court may require or permit subsequent corrections or additions to the record.
|4E. If, before the date set for hearing, application is made to the court for leave to present additional information, and it is shown to the satisfaction of the court that the additional information is material and that there was good cause for failure to present it in the proceedings before the department, the court may order that the additional information be taken before the department upon conditions determined by the court. The department may modify its findings and decision by reason of the additional information and shall file that information and any modifications, new findings, or decisions with the reviewing court.
F. The provisions of [La.Rev.Stat. Ann. § ] 49:964(C), (F), and (G), including the standard of review, shall apply to appeals provided in this Section.
G. Judicial review, appeals, and other proceedings for injunctive relief regarding environmental permits needed for construction or operation of new facilities or modification of existing facilities, shall be decided by the court summarily and by preference. In no case shall the date for a final decision on the merits of such review or appeals extend beyond the ninetieth day after receipt by the court of the record for adjudication. The court in its discretion may issue further orders consistent with the Louisiana Code of Civil Procedure to carry out the summary mandate of such reviews or appeals.

Under Section 2050.21F, review is conducted in accordance with the provisions of Section 964C, F, and G, without a jury, and is confined to the agency record. La.Rev.Stat. Ann. §§ 30:2050.21 F. The district court functions in its capacity as an appellate court and should not reverse a substantive decision of DEQ unless it can be shown that the actual balance of costs and benefits that was struck was arbitrary or clearly gave insufficient weight to environmental protection. Dow Chemical Co. Louisiana Operations Complex Cellulose and Light Hydrocarbons Plants, Part 70 Air Permit Major Modifications and Emission v. Reduction Credits, 03-2278 (La.App. 1 Cir. 9/17/04), 885 So.2d 5, 10, writ denied, 04-3005 (La.2/18/05), 896 So.2d 34. The district court acknowledged these provisions in reaching its decision.

liiDEQ has argued, however, that LLA was not entitled to appeal its permit denial pursuant to Section 2050.21, because this matter is governed by Section 2024, which provides:

A. Any permit action shall be effective upon issuance unless a later date is specified therein. Such action shall be final and shall not be subject to further review unless, no later than thirty days after the notice of the action is served by certified mail or by hand upon the applicant, he files with the secretary a request for hearing.
B. Upon timely filing of the request, the secretary shall either grant or deny the request within thirty days. If the request for hearing is granted, the issues raised in the request shall be resolved by an adjudicatory hearing before a hearing officer. Any appeal from a final decision of the secretary shall be in accordance with the provisions of Chapter 2-A of this Subtitle.
C. If the secretary does not grant the hearing within the time provided for in Subsection B, the applicant shall, within thirty days thereafter, be entitled to file an application for de novo review of the secretary’s action in the Nineteenth Judicial District Court for the parish of East Baton Rouge.
D. Notwithstanding the provisions of Subsection A of this Section, with respect to the effectiveness of a permit action, a final decision of the secretary which will result in the practical closing and elimination of a lawful business by either the denial or restriction of a permit shall become effective no sooner than one hundred twenty days after notice of the action is served upon the respondent. In such an instance the existing permit will continue in effect until such decision becomes effective.

Section 2024B provides that if DEQ grants the applicant’s hearing request, an adjudicatory hearing shall be held and the applicant may appeal the final decision subsequently rendered. See A to Z Paper Co., Inc. v. State, Dept, of Environmental Quality, 99-1710 (La.App. 1 Cir. 9/22/00), 770 So.2d 445, 446. However, if the hearing request is denied, the applicant’s remedy is to timely file an application for de novo review in the district court. La.Rev. Stat. Ann. § 30:2024C. This was the situation in the case sub judice. This court has interpreted the phrase “application for de novo |f,review” to mean a right to an adjudication in the trial court. In the Matter of Supplemental Fuels, Inc., 94-1596 (La.App. 1 Cir. 5/9/95), 656 So.2d 29 (interpreting a prior version of Section 2024 that also provided a right to file an application for de novo review in the 19th Judicial District Court if DEQ denied the request for adjudicatory hearing). This court has explained:

The 1990 amendment to [Section] 2024A made a very significant change with respect to judicial review of DEQ permit determinations. It provides that where DEQ refused to hold an adjudicatory hearing on a permit determination, the applicant has a right to a de novo review in the trial court. The legislature designated the trial court as the adjudicative tribunal in which the merits of the permit application will be addressed because DEQ declined to act as the adjudicative tribunal. This amendment preserves DEQ’s discretion in determining to act as the administrative tribunal, affords the permit applicant the right to have the merits of its permit application tested in an adjudicatory context, and ensures that a record will be compiled for appellate review purposes.

In the Matter of Supplemental Fuels, Inc., 656 So.2d at 36.

It is undisputed that LLA filed a request for hearing, as authorized by Section 2024 A, which was denied by DEQ. Interpreting DEQ’s decision to then be “final” and appealable pursuant to Section 2024 B, LLA filed an appeal in accordance with Chapter 2-A, specifically Section 2050.21. This ignores the specific provisions of Section 2024 C, which outlines the procedure to be followed after a request for hearing is denied. Sections 2024 and 2050.21 are separate and distinct provisions setting forth different procedures for review. See A to Z Paper Co., Inc., 770 So.2d at 446; In re Natural Resources Recovery, Inc., 98-2917 (La.App. 1 Cir. 2/18/00), 752 So.2d 369, 374, writs denied, 00-0806 (La.5/26/00), 762 So.2d 1104, and 00-0836 (La.5/26/00), 762 So.2d 1105. In In re Natural Resources Recovery, Inc., this court recognized that Section 2024 pertains exclusively to permit applicants and has no bearing on the appellate review provisions 17afforded to other aggrieved persons under Section 2050.21. In re Natural Resources Recovery, Inc., 752 So.2d at 374. We now conclude that, when no adjudicatory hearing has previously been held, Section 2024 is the exclusive procedure applicable to permit applicants. Under the facts of this case, pursuant to Section 2024, an appeal pursuant to Chapter 2-A is authorized only if the applicant’s hearing request is granted and the issues raised in the request are resolved by an adjudicatory hearing. La.Rev.Stat. Ann. § 30:2024 B. If the applicant’s hearing request is denied, the applicant’s remedy is to file an application for de novo review of the final permit action in the 19th Judicial District Court. La.Rev.Stat. Ann. § 30:2024 C. The applicant may not disregard the specific provisions of Section 2024 C in favor of the more general provisions of Section 2050.21. It is a well-recognized principle of statutory construction that legislation addressing a more particularized subject matter prevails over more generalized legislation. See Corbello v. Sutton, 446 So.2d 301 (La.1984).

Because no adjudicatory hearing was ever held, Section 2024 is applicable to these proceedings and, since the requirements of Subsection B were not applicable, an appeal pursuant to Section 2050.21 was not authorized. The recourse available to LLA was to file an application for de novo review of DEQ’s action in the district court pursuant to Section 2024 C. The district court lacked subject matter jurisdiction to consider LLA’s appeal pursuant to Section 2050.21. As such, its judgment must be vacated.

CONCLUSION

For the reasons set forth herein, the judgment of the district court is vacated. Since the district court lacked subject matter jurisdiction, this court |salso lacks subject matter jurisdiction to consider the merits of the appeal. See Metro Riverboat Associates, Inc., 797 So.2d at 663. Accordingly, this appeal is dismissed. All costs are assessed to Louisiana Land Acquisition, LLC.

JUDGMENT VACATED; APPEAL DISMISSED.

HIGGINBOTHAM, J., concurs.

      . See In the Matter of Supplemental Fuels, Inc., 656 So.2d at 36.


author: PARRO, J.

text:
    LOUISIANA ENVIRONMENTAL ACTION NETWORK, Concerned Citizens for Livingston Parish, Inc., Mr. O’Neil Couvillion and Mr. Harold Wayne Breaud v. LOUISIANA DEPARTMENT OF ENVIRONMENTAL QUALITY.
    No. 2011 CA 1935.
    Court of Appeal of Louisiana, First Circuit.
    July 25, 2012.

      Elizabeth L. de Calderón, Adam Babich, Tulane Environmental Law Clinic, New Orleans, LA, for Plaintiffs-Appellants Louisiana Environmental Action Network, Concerned Citizens for Livingston Parish, Inc., Mr. O’Neil Couvillion and Mr. Harold Wayne Breaud.
    Herman Robinson, Claudia Rush, Jackie Marve, Baton Rouge, LA, for Defendant-Appellee Louisiana Department of Environmental Quality.
    Gerald L. Walter, Jr., Anne J. Crochet, Timothy J. Poché, Taylor, Porter, Brooks & Phillips, L.L.P., Baton Rouge, LA, for Intervenor-Appellee Waste Management of Louisiana, L.L.C.
    Before CARTER, C.J., PARRO, and HIGGINBOTHAM, JJ.
   PARRO, J.

12Concerned Citizens for Livingston Parish, Inc., O’Neil Couvillion, Harold Wayne Breaud, and Louisiana Environmental Action Network (collectively, LEAN) sought judicial review, under the appellate jurisdiction of the district court, of an agency action, which approved an experimental operation for the development of new technologies and methods, as authorized by LAC 33:VII.117 (Section 117). The district court sustained the intervenor’s decli-natory exception pleading the objection of lack of subject matter jurisdiction and the defendant’s peremptory exception pleading the objection of no cause of action and dismissed the petition for judicial review. For the reasons that follow, we dismiss the appeal.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Waste Management of Louisiana, L.L.C. (Waste Management) operates a Type I/ll landfill (Woodside Landfill) in Livingston Parish under a permit from the Louisiana Department of Environmental Quality (LDEQ). Waste Management had been operating at this location for over twenty-five years when it sought permission on July 2, 2010, from LDEQ for an experimental operation regarding its landfill. In particular, Waste Management submitted a request for approval to conduct a pilot study to recirculate leachate at its Wood-side Landfill. The purpose of the pilot study was to determine if leachate recirculation would increase the rate of waste stabilization at the site. Waste Management’s request was approved for a period of two years as an experimental operation for the development of new technologies and methods in accordance with Section 117 of LDEQ’s regulations concerning the disposal of solid waste. See LAC 33:VII.101 et seq.; see also LSA-R.S. 30:2011(D)(8).

LEAN filed a petition in the Nineteenth Judicial District Court, seeking judicial review of the action of LDEQ. LEAN contends it was notified of LDEQ’s approval on |sJanuary 5, 2011, and filed its petition for judicial review within thirty days. LDEQ responded to the petition by filing a peremptory exception pleading the objection of no cause of action. Waste Management intervened in the proceedings and filed a declinatory exception pleading the objection of lack of subject matter jurisdiction. After a hearing, the district court sustained both exceptions and dismissed LEAN’S petition, with prejudice, at its cost. This appeal followed.

APPLICABLE LAW

A district court shall have appellate jurisdiction as provided by law. LSA-Const. art. V, § 16(B). Judicial review by a district court of a decision of an administrative agency, such as LDEQ, is an exercise of that court’s appellate jurisdiction in accordance with Article V, § 16(B). This is in contrast to the original jurisdiction granted to district courts in all civil matters by Article V, § 16(A) of the Louisiana Constitution. The grant of original jurisdiction refers to judicial adjudications in the first instance and designates the adjudicative tribunal in which the initial adjudication is made; it does not refer to judicial review of decisions of administrative agencies. Metro Riverboat Associates, Inc. v. Louisiana Gaming Control Bd., 01-0185 (La.10/16/01), 797 So.2d 656, 660; In re American Waste and Pollution Control, Co., 588 So.2d 367, 871 (La.1991). Therefore, for the purpose of judicial review of administrative action, district courts are courts of limited jurisdiction and only have appellate jurisdiction to review administrative decisions as provided by the legislature or constitution. Metro Riverboat Associates, Inc., 797 So.2d at 660. In addition, the existence of a specific statutory procedure generally implies a legislative intent that the special statutory procedure be the exclusive means of obtaining judicial review in the situations to which it applies. Id.

The Louisiana Environmental Quality Act, LSA-R.S. 30:2001, et seq., established LDEQ, which “shall be the primary agency in the state concerned with environmental protection and regulation.” LSA-R.S. 30:2011(A)(1). As such, LDEQ has jurisdiction Lover matters affecting the regulation of the environment within the state, including the regulation of solid waste disposal, and the regulation of those programs that encourage, assist, and result in the reduction of wastes generated within the state. See Id.

The Louisiana Environmental Quality Act and LDEQ’s rules and regulations specifically provide for certain procedures concerning the application for new permits and major modifications of existing permits, which would authorize the disposal of solid wastes, among other substances. See LSA-R.S. 30:2014, 2016, 2017, 2018, and 2024; see also LAC 33:VII.517 and 519. Under the established procedures, LDEQ has the authority to issue permits for solid waste disposal facilities, such as the Wood-side Landfill facility at issue. Moreover, LSA-R.S. 30:2050.21(A) authorizes an aggrieved person to devolutively appeal “a final permit action, a final enforcement action, or a declaratory ruling only to the Nineteenth Judicial District Court.”

In addition, Section 117 of the solid waste regulations allows LDEQ to authorize an applicant to test a new technology prior to submitting an application for a new permit or a modification of an existing permit, as long as the technology being tested will not result in the creation of significant health, safety, or environmental hazards, or nuisances. This section is not contained within the regulatory procedures addressing applications for new permits or modifications of existing permits, nor is there any corresponding statutory procedure in the Louisiana Environmental Quality Act.

Specifically, Section 117 provides:

A. This Section allows applicants to submit requests allowing for experimental operations for new technology (e.g., use of alternate daily cover) prior to submitting a permit application or modification. No experimental operations for new technologies shall be implemented without prior approval from the administrative authority.
B. Permission may be granted to facilitate experimental operations intended to develop new methods or technology providing strict conformity with these regulations is demonstrated in the request.
C. Experimental operations shall be considered only where significant health, safety, environmental hazards, or nuisances will not be created, and when a detailed proposal is submitted and accepted that sets forth the objectives, procedures, controls, monitoring, reporting, |fitime frame, and other data regarding the experimental operations.
D. Restrictions. Initial experimental operations shall be limited to a maximum of two years. However, the department may renew the request for additional time periods upon a showing by the person that the need for a continuance is valid.

The issue before both this court and the district court is whether LDEQ’s action in accordance with Section 117 is subject to judicial review.

ANALYSIS

It is undisputed that actions regarding experimental operations made pursuant to Section 117 do not qualify as final permit actions under LSA-R.S. 30:2024; therefore, they are not appealable to the district court in accordance with LSA-R.S. 30:2050.21(A). Instead, LEAN argues that it is entitled to judicial review of LDEQ’s action pursuant to LSA-R.S. 49:964(A)(1) of the Louisiana Administrative Procedure Act (APA), which provides:

Except as provided in R.S. 15:1171 through 1177, a person who is aggrieved by a final decision or order in an adjudication proceeding is entitled to judicial review under this Chapter whether or not he has applied to the agency for rehearing, without limiting, however, utilization of or the scope of judicial review available under other means of review, redress, relief, or trial de novo provided by law. A preliminary, procedural, or intermediate agency action or ruling is immediately reviewable if review of the final agency decision would not provide an adequate remedy and would inflict irreparable injury.

According to LEAN, LDEQ’s approval of Waste Management’s request pursuant to Section 117 constitutes a “preliminary, procedural, or intermediate agency action” that is immediately reviewable, because review of the final agency action would not provide an adequate remedy and would inflict irreparable injury. This argument is without merit.

The interpretation of any statutory provision starts with the language of the statute itself. In re Succession of Faget, 10-0188 (La.11/30/10), 53 So.3d 414, 420. When the provision is clear and unambiguous and its application does not lead to absurd consequences, its language must be given effect, and its provisions must be | ^construed so as to give effect to the purpose indicated by a fair interpretation of the language used. Snowton v. Sewerage and Water Bd., 08-0399 (La.3/17/09), 6 So.3d 164, 168; see LSA-C.C. art. 9; LSA-R.S. 1:4. Unequivocal provisions are not subject to judicial construction and should be applied by giving words their generally understood meaning. Snowton, 6 So.3d at 168; see also LSA-C.C. art. 11; LSA-R.S. 1:3.

Words and phrases shall be read with their context and shall be construed according to the common and approved usage of the language. LSA-R.S. 1:3. Further, every word, sentence, or provision in a law is presumed to be intended to serve some useful purpose, that some effect is given to each such provision, and that no unnecessary words or provisions were employed. Colvin v. Louisiana Patient’s Compensation Fund Oversight Bd., 06-1104 (La.1/17/07), 947 So.2d 15, 19; Moss v. State, 05-1963 (La.4/4/06), 925 So.2d 1185, 1196. Consequently, courts are bound to give effect to all parts of a statute, if possible, and to construe no sentence, clause, or word as meaningless and surplusage, if a construction giving force to and preserving all words can legitimately be found. Colvin, 947 So.2d at 19-20; Moss, 925 So.2d at 1196.

By its express terms, LSA-R.S. 49:964(A)(1) provides a remedy to those aggrieved by “a final decision or order in an adjudication proceeding.” Louisiana Revised Statute 49:951(1) defines “adjudication” to mean the “agency process for the formulation of a decision or order.” In addition, LSA-R.S. 49:951(3) defines “decision” or “order” to mean:

[T]he whole or any part of the final disposition (whether affirmative, negative, injunctive, or declaratory in form) of any agency, in any matter other than rulemaking, required by constitution or statute to be determined on the record after notice and opportunity for an agency hearing, and including non-revenue licensing, when the grant, denial, or renewal of a license is required by constitution or statute to be preceded by notice and opportunity for hearing.

Although the phrase “preliminary, procedural, or intermediate agency action” is not defined, the phrase, as it is used in the context of LSA-R.S. 49:964(A)(1), can only refer to a preliminary, procedural, or intermediate agency action taken in the course of a single adjudication proceeding that leads to the issuance of a final decision or order as 17defined by the statutes. This is apparent from a review of the language of LSA-R.S. 49:964(A)(1), which provides that an immediate review of such preliminary, procedural, or intermediate agency actions is allowed only when “review of the final agency decision would not provide an adequate remedy and would inflict irreparable injury.” When reading LSA-R.S. 49:964(A)(1) as a whole, the “final agency decision” referred to in the second sentence of that provision can only be the “final decision or order in an adjudication proceeding” referred to in the first sentence of the provision. Clearly, therefore, LSA-R.S. 49:964(A)(1) contemplates that the aggrieved party can only seek judicial review of: (1) a final decision or order in an adjudication proceeding; or (2) a preliminary, procedural, or intermediate agency action made in the course of seeking a final agency decision in an adjudication proceeding, which is immediately reviewable because review of the final agency decision would not provide an adequate remedy and would inflict irreparable injury.

As noted previously, it is undisputed that actions regarding experimental operations made pursuant to Section 117 do not qualify as final permit actions under LSA-R.S. 80:2024. It is also clear that a decision made pursuant to Section 117 does not constitute a “final decision or order in an adjudication proceeding” within the meaning of the APA. A plain reading of Section 117(A) reveals that the provision enables LDEQ to authorize an applicant to submit requests allowing for experimental operations for new technology prior to submitting a permit application or modification. LDEQ may authorize such experimental operations only where significant health, safety, or environmental hazards, or nuisances will not be created and when a detailed proposal is submitted and accepted that sets forth the objectives, procedures, controls, monitoring, reporting, time frame, and other data regarding the experimental operations. LAC 33:VII.117(C). However, nowhere in Section 117, nor elsewhere in the solid waste regulations or in the Louisiana Environmental Quality Act, is a decision approving such a proposal required to be made on the record, after notice and opportunity for a hearing, as would be required for such a determination to qualify as a 18“fmal decision or order in an adjudication proceeding” under the provisions of the APA.

Furthermore, the procedure established by Section 117 is self-contained and is not part of a larger procedure leading to the issuance of a final decision by the agency. Pursuant to Section 117, the applicant may submit a request to test experimental operations for new technology for a limited period of time. The request may later be followed by an application for a permit or for modification of a permit; however, such applications are subject to separate proceedings and need not be preceded by a request pursuant to Section 117. Moreover, nothing in Section 117 requires that an initial request pursuant to that section be followed by an application for a permit or modification. Therefore, such a determination cannot be considered a preliminary, procedural, or intermediate agency action leading to the issuance of a final agency decision. Accordingly, there is no statutory authority granting appellate jurisdiction to the district court over this matter, and the district court was without subject matter jurisdiction to consider the petition for judicial review.

CONCLUSION

For the foregoing reasons, we conclude that the district court properly determined that it was without subject matter jurisdiction to consider the petition for judicial review filed by Concerned Citizens for Livingston Parish, Inc., O’Neil Couvillion, Harold Wayne Breaud, and Louisiana Environmental Action Network in this matter. Because the district court lacked subject matter jurisdiction, this court also lacks subject matter jurisdiction to consider this appeal. Accordingly, the appeal is dismissed. All costs are assessed to Concerned Citizens for Livingston Parish, Inc., O’Neil Couvillion, Harold Wayne Breaud, and Louisiana Environmental Action Network.

APPEAL DISMISSED.

HIGGINBOTHAM, J., concurs.

      . Leachate is the liquid that accumulates from and around nonhazardous solid waste.

      . Leachate recirculation is a management technique in which the leachate from a landfill is reintroduced back into the landfill for reinfiltration into the solid waste. It is believed that the process promotes the degradation of waste, which results in a faster increase to the waste mass stability and an increase in the methane generation. This, in turn, settles the landfill faster, allowing the landfill to recapture more airspace for disposal of solid waste.

      .When it filed its petition for review, LEAN also obtained an ex parte order from the district court, staying the effect of LDEQ’s action that authorized Waste Management to begin its experimental program of leachate recirculation. LDEQ and Waste Management filed motions to vacate the stay in the district court. Upon granting the exceptions and dismissing LEAN’S petition, the district court also lifted the stay.

      . It is also undisputed that actions made pursuant to Section 117 do not qualify as final enforcement actions or declaratory rulings, for which an appeal to the district court is also authorized pursuant to LSA-R.S. 30:2050.21(A).

      . Because we have determined that the district court properly determined that it was without subject matter jurisdiction to consider the petition for judicial review, we will not address the peremptory exception of no cause of action filed by LDEQ.