text:
    The MONTERREY CENTER, LLC v. ED.UCATION PARTNERS, INC., Edward P. Schilleci and Deborah H. Schilleci.
    No. 2008 CW 0734.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 23, 2008.

      Edward J. Womac, Jr., Brian J. Branch, Edward J. Womac, Jr. & Associates, LLC, New Orleans, LA, for Plaintiff-Appellee, The Monterrey Center, L.L.C.
    Leo J. Berggreen, Baton Rouge, LA, for Defendants-Appellants, Education Partners, Inc., Edward P. Schilleci, and Deborah H. Schilleci.
    Before PARRO, McCLENDON, and WELCH, JJ.
   PARRO, J.

|2Pefendants, Ed.ucation Partners, Inc., Edward P. Schilleci, and Deborah H. Schil-leci, appeal the judgment of the trial court granting a partial summary judgment in favor of plaintiff, The Monterrey Center, L.L.C. (Monterrey Center). For the reasons that follow, we convert the petition for an appeal to an application for a supervisory writ, grant the writ, and remand for further proceedings.

FACTS AND PROCEDURAL BACKGROUND

On November 3, 2006, the Monterrey Center filed a petition for breach of a lease agreement and for money due on the lease. Attached to the petition as exhibits were the following:

1. A contract of lease for a term of 10 years between Monterrey Center, L.L.C. and Education Partners, Inc.
2. A notice of default of the lease from counsel for the Monterrey Center, L.L.C. to Mr. and Mrs. Schilleci, as guarantors on the lease, dated October 9, 2006.

The Monterrey Center alleged that the 10-year lease agreement required monthly rental payments of $7,425 for the use of the premises located at 9466 Greenwell Springs Road, Baton Rouge, Louisiana. In reliance on the signed agreement, the Monterrey Center alleged that it undertook construction/renovation of the leased premises to become suitable for the business of Ed.ucation Partners. Upon learning of the breach of the lease by defendants, it immediately discontinued all renovations. However, the Monterrey Center alleges that it had already paid approximately $9,000 for the renovations.

The Monterrey Center alleged that defendants breached the lease agreement on July 15, 2006, without cause and/or proper notice. As such, the Monterrey Center alleged that it was entitled to monthly lease payments as per the accelerated provisions of the lease agreement until the Monterrey Center found a new lessee to occupy the pleased premises. The Monterrey Center also alleged that defendants were placed In default of the lease agreement and, despite amicable demand, have failed to honor their contractual obligations.

Defendants answered the petition generally denying the allegations of breach and specifically set forth the affirmative defense that their consent was obtained by duress and, as such, the lease agreement was without legal effect. Defendants asserted that they came to learn that the Monterrey Center is composed of three individuals, namely, Danny L. Young, Fred Alexander, and Elizabeth Rammer. Ms. Rammer is the sister of defendant Deborah Schilleci. Ed.ucation Partners owned property located at 5131 Government Street in Baton Rouge. The Schillecis contend that Ms. Rammer knew they were faced with meeting a huge balloon payment on the Government Street property on September 15, 2006. At the time of the execution of the lease agreement, the Schillecis had a sale pending on the Government Street property. The purchase price was to be in excess of one million dollars, which would enable them to pay off the balloon note on the property. Ms. Rammer had a previous, positive history with the prospective buyer of the Government Street property and was instrumental, to a significant degree, in making the deal.

The Schillecis contend that Ms. Rammer used her influence with her sister to lure them into moving their business to rental property owned by the Monterrey Center, in essence, as pay-back for finding a buyer for the Government Street property. The Schillecis further contend that they were “shocked” and “surprised” to learn that Ms. Rammer would be their new landlord. They contend that Ms. Rammer led them to believe that the Monterrey Center was owned only by Danny L. Young. Thereafter, Mr. Schilleci contends that he asked Ms. Rammer if the lease was negotiable, and she responded that it was not. Mr. Schilleci contends that he then told her they may not sign the lease, to which she allegedly responded “[I] made the sale on the Government Street property and [I] can kill the sale; you will sign the lease as presented.” The Schillecis contend that they well knew that Ms. Kammer could do what she threatened to do if they did not sign the lease. The Schillecis contend that, but for such duress, they would not have signed the lease.

I/The Monterrey Center filed a motion for summary judgment on the basis that defendants could not prove their affirmative defense that they were under duress at the time of the signing of the lease agreement with the Monterrey Center. Attached to the Monterrey Center’s motion for summary judgment were an affidavit by Mr. Young, an affidavit by Ms. Kammer, a letter (addressee unknown) dated May 10, 2006, purporting to reference Ed.ucation Partners’ intent to enter into a lease agreement with the Monterrey Center, the lease agreement, a commercial design plan agreement for the renovation of the leased premises, a July 11, 2006 letter written by Mr. Young to the Schil-lecis requesting amicable resolution of the matter, and a notice of eviction dated July 12, 2006 sent to Ms. Kammer by the defendants regarding property on which Ms. Kammer was living.

In opposition to the motion for summary judgment, defendants attached to their memorandum an affidavit of Edward P. Schilleci, an affidavit of Deborah H. Sehil-leci, the Articles of Organization of The Monterrey Center, L.L.C., correspondence directed to the Secretary of State adding and deleting a member to the composition of the Monterrey Center, and a reported federal decision purportedly establishing Ms. Kammer’s conviction for conspiracy to defraud the federal government.

After considering the “evidence” presented by the parties, the court granted the motion for summary judgment and gave oral reasons for judgment, finding “that there are no genuine issues of material fact as to whether the defendants’ consent in signing the lease was vitiated by duress.... [T]he defendants have not created a genuine issue of material facts, so summary judgment is appropriate.... This is a final judgment.” The court’s comments concerning the judgment indicated that it did not believe that Ms. Kam-mer’s alleged threats, even if true, would be sufficient duress to vitiate the defendants’ consent in signing the lease. The court noted that it was unreasonable for the defendants to believe that Ms. Kam-mer had the power to stop the sale of their [¡^Government Street property. The court also believed that Ms. Kammer’s prior conviction was irrelevant. Defendants appealed, contending that the trial court erred in finding there was no genuine issue of material fact on the affirmative defense of duress in signing the lease, and that the court legally erred in ruling that even if them allegations of duress were true, said allegations would not be sufficient to vitiate their consent to the lease.

SUBJECT MATTER JURISDICTION

Appellate courts have the duty to examine their subject matter jurisdiction sua sponte, even when the parties do not raise the issue. McGehee v. City/Parish of East Baton Rouge, 00-1058 (La.App. 1st Cir.9/12/01), 809 So.2d 258, 260. A final judgment is appealable in all causes in which appeals are given by law, whereas an interlocutory judgment is appealable only when expressly provided by law. See LSA-C.C.P. art.2083. A judgment that does not determine the merits but only preliminary matters in the course of the action is an interlocutory judgment. However, a judgment that determines the merits in whole or in part is a final judgment. LSA-C.C.P. art. 1841.

Another panel of this court dismissed a previously-filed appeal in this matter, noting that the judgment appealed from appeared to be a non-appealable partial summary judgment. Thereafter, the district court signed an amended and supplemental judgment, designating the judgment as final and appealable, without stating the basis for its determination that there was no just reason for delay. That determination and designation does not settle the matter. Upon our de novo review, we conclude that the partial summary judgment, rejecting defendants’ affirmative defense of duress, does not constitute a final judgment for the purpose of an | (¡immediate appeal.

Nevertheless, LSA-Const. art. V, § 10(A) provides that a court of appeal has “supervisory jurisdiction over cases which arise within its circuit.” Thus, we convert this petition for an appeal to a writ application and consider the issue raised in this matter. See First National Bank of Picayune v. Pearl River Fabricators, Inc., 06-2195 (La.11/16/07), 971 So.2d 302, 310.

APPLICABLE PROCEDURAL LAW

Summary judgments are reviewed on appeal de novo, with the appellate court using the same criteria that govern the trial court’s determination of whether summary judgment is appropriate. Smith v. Our Lady of the Lake Hospital, Inc., 93-2512 (La.7/5/94), 639 So.2d 730, 750. A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine issue of material fact. Jarrell v. Carter, 632 So.2d 321, 323 (La.App. 1st Cir.1993), writ denied, 94-0700 (La.4/29/94), 637 So.2d 467. The summary judgment procedure is favored and is designed to secure the just, speedy, and inexpensive determination of every action. LSA-C.C.P. art. 966(A)(2); Rombo v. Walker, 96-2538 (La.App. 1st Cir.11/7/97), 704 So.2d 30, 32. The motion should be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show that there is no genuine issue as to material fact and that mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(B).

|7The initial burden of proof is on the moving party. However, on issues for which the moving party will not bear the burden of proof at trial, the moving party’s burden of proof on the motion is satisfied by pointing out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, the nonmoving party must produce factual support sufficient to establish that it will be able to satisfy its evidentiary burden of proof at trial; failure to do so shows that there is no genuine issue of material fact. LSA-C.C.P. art. 966(C)(2); Clark v. Favalora, 98-1802 (La.App. 1st Cir.9/24/99), 745 So.2d 666, 673.

DISCUSSION

Louisiana Civil Code article 2668 provides as follows:

Lease is a synallagmatic contract by which one party, the lessor, binds himself to give to the other party, the lessee, the use and enjoyment of a thing for a term in exchange for a rent that the lessee binds himself to pay.
The consent of the parties as to the thing and the rent is essential but not necessarily sufficient for a contract of lease.

The essential elements of the lease are the thing, the price (rent), and the consent of the parties. See Daigle v. Vanderpool, 02-2005 (La.App. 1st Cir.6/27/03), 858 So.2d 552, 555; Southern Treats, Inc. v. Titan Properties, L.L.C., 40,873 (La.App. 2nd Cir.4/19/06), 927 So.2d 677, 683, writ denied, 06-1170 (La.9/15/06), 936 So.2d 1271. Consent is vitiated when it has been obtained by duress of such a nature as to cause a reasonable fear of unjust and considerable injury to a party’s person, property, or reputation. LSA-C.C. art.1959; Wolf v. Louisiana State Racing Commission, 545 So.2d 976, 980 (La.1989); Grezaffi v. Smith, 93-1696 (La. App. 1st Cir.6/24/94), 641 So.2d 210, 213. One form of duress results when a person makes an improper threat that induces a party who has no reasonable alternative to manifest his assent. The result of this type of duress is that the contract that is created is voidable by the victim. LSA-C.C. art.1959, Revision Comments — 1984, comment (b); Wolf, 545 So.2d at 980.

Louisiana Civil Code article 1959 further provides that age, health, disposition, and other personal circumstances of a party must be taken into account in determining the reasonableness of the fear. LSA-C.C. art.1959; Grezaffi, 641 So.2d at 213-14. Thus, Article 1959 sets forth a subjective as well as an objective standard for evaluating | Ra claim of duress. Dornier v. Live Oak Arabians, Inc., 602 So.2d 743, 748 (La.App. 1st Cir.), writ denied, 608 So.2d 177 (La.1992); Eymard v. Terrebonne, 560 So.2d 887, 890 (La.App. 1st Cir.), writ denied, 567 So.2d 614 (La.1990). Duress is to be considered in light of subjective characteristics of the person whose consent is in question; however, Article 1959 also provides that the duress must be of such a nature as to cause a “reasonable fear” of unjust and considerable injury to a party’s property in order to constitute legal duress. See Eymard, 560 So.2d at 890; Dornier, 602 So.2d at 748.

Some Louisiana courts have held that economic stress does not constitute legal duress as contemplated by Article 1959. However, the supreme court has held that the fear of economic deprivation can constitute duress that vitiates consent. Wolf, 545 So.2d at 981; see also Martco Partnership v. Frazier, 01-72 (La.App. 3rd Cir.6/6/01), 787 So.2d 1196, 1199.

As the movant for summary judgment, the Monterrey Center had the initial burden of proof pursuant to LSA-C.C.P. art. 966(C)(2). However the Monterrey Center would not bear the burden of proof at trial on the issue of defendants’ affirmative defense of duress; therefore, it was only required to point out to the trial court that there was an absence of factual support essential to defendants’ defense. The Monterrey Center attempted to do this by offering the affidavits of Mr. Young and Ms. Kammer. Mr. Young attested that at no time during the lease negotiations did he “exercise duress” towards the Schillec-is. According to Mr. Young, the Schillecis signed |flthe lease of their own free will. However, there is no indication that he was present when the Schillecis signed the lease and, in fact, Ms. Kammer attested that it was she who accompanied the Schil-lecis to a notary for purposes of executing the lease.

Ms. Kammer attested that she “recommended” to the Schillecis that they sell their Government Street property in light of their financial difficulties. Ms. Kammer also “recommended” to the Schillecis that they lease property for Ed.ucation Partners to operate. According to Ms. Kam-mer, she was given permission to locate suitable premises for Ed.ucation Partners to lease and permission to locate a purchaser for the Government Street property. Ms. Kammer attested that she in fact found a suitable location for Ed.ucation Partners to lease, i.e., 9466 Greenwell Springs Road, Baton Rouge, which was the property owned by the Monterrey Center. Ms. Kammer attested that she accompanied the Schillecis to a notary of their choice for purposes of signing the lease and that she did not at that time, or any other time, make threats of cancelling the closing on the Government Street property-

In opposition to the motion for summary judgment, defendants attack the affidavit of Mr. Young as adding nothing to the central issue before the court on the basis that defendants have never claimed that Mr. Young caused the duress in this case. Defendants claim that Mr. Young’s affidavit has no bearing on whether Ms. Ram-mer caused duress.

In addition, both Edward and Deborah Schilleci offered their respective affidavits. Both contend that in the spring of 2006, they were operating their beauty school, which is operated under the legal entity of Ed.ucation Partners, on Government Street in Baton Rouge. Ms. Rammer, Mrs. Schilleci’s sister, was living on property they owned, rent free. As such, the Schillecis attested that Ms. Rammer was aware that they desired to sell their Government Street property, because they were faced with a huge balloon payment due in September of 2006. Mr. Young made an offer on the property, which they rejected as insufficient. Ms. Rammer was instrumental in getting other prospective buyers interested in the property, and ultimately played a key role in locating a purchaser for it. Each of the Schillecis attested that at the time of the negotiation of the purchase agreement, Ms. Rammer continuously sought to get them interested in 110moving their beauty school to the Monterrey Center. The Schillecis attested that they did not know and could not believe that Ms. Rammer was a member of the Monterrey Center until they saw the documents from the Secretary of State’s office. Essentially, the Schillecis attested that they had no choice but to sign the lease as presented or risk losing the sale of their Government Street property.

A trial court cannot make credibility decisions on a motion for summary judgment. Hutchinson v. Knights of Columbus, Council No. 5747, 03-1533 (La.2/20/04), 866 So.2d 228, 234; see Boland v. West Feliciana Parish Police Jury, 03-1297 (La.App. 1st Cir.6/25/04), 878 So.2d 808, 813, writ denied, 04-2286 (La.11/24/04), 888 So.2d 231. In deciding a motion for summary judgment, the court must assume that all of the witnesses are credible. Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181, 99-2257 (La.2/29/00), 755 So.2d 226, 236. Furthermore, summary judgment is seldom appropriate for determinations based on subjective facts of motive, intent, good faith, knowledge, or malice and should only be granted on such subjective issues when no genuine issue of material fact exists concerning that issue. See Rager v. Bourgeois, 06-0322 (La.App. 1st Cir.12/28/06), 951 So.2d 330, 333, writ denied, 07-0189 (La.3/23/07), 951 So.2d 1105.

Based on our de novo review of the evidence, we conclude that a genuine issue of material fact remains as to whether the Schillecis were subjected to duress sufficient to vitiate their consent to the lease. We base this conclusion on the conflicting affidavits offered by the parties and on the absence of competent summary judgment evidence establishing “facts” relied on by the parties. On the record before us, we are unable to discern whether the threats and the fear were legitimate or merely an attempt by defendants to extricate themselves from a bad deal.

CONCLUSION

The trial court erred in granting summary judgment because doing so required | nthe court to decide disputed genuine issues of material fact and to make credibility determinations. Accordingly, we convert the petition for an appeal to an application for a supervisory writ, grant the writ, reverse the trial court’s judgment, and remand for further proceedings. All costs of this matter are assessed to The Monterrey Center, L.L.C.

PETITION FOR APPEAL CONVERTED TO APPLICATION FOR SUPERVISORY WRIT; WRIT GRANTED; JUDGMENT REVERSED; AND REMANDED.

McCLENDON, J. Concurs and Assigns Reasons.

McCLENDON, J., concurs.

| -¡Based on the insufficiency of the record, I concur.

      . The Schillecis are the officers and directors of Ed.ucation Partners, Inc. For ease of reference, the Schillecis and Ed.ucation Partners, Inc., cumulatively, are referred to as defendants.

      . Ed.ucation Partners does business as D'Jay's School of Beauty.

      .The petition alleges that defendants verbally communicated to Danny Young, a principal of the Monterrey Center, their intent to breach the lease agreement.

      . We note that both parties simply attached several exhibits to their memorandum in support of summary judgment. However, a document that is not an affidavit or sworn to in any way or is not certified or attached to an affidavit is not of sufficient evidentiary quality on summaiy judgment to be given weight in determining whether or not there remain genuine issues of material fact. Robertson v. Northshore Regional Medical Center, 97-2068 (La.App. 1st Cir.9/25/98), 723 So.2d 460, 464. As such, it appears the only competent evidence submitted in support of and in opposition to the motion are the affidavits offered by both parties. See Aydell v. Sterns, 98-3135 (La.2/26/99), 731 So.2d 189.

      . The judgment at issue is not a final partial judgment immediately appealable under LSA-C.C.P. art. 1915(A). LSA-C.C.P. art. 1915(A)(3) provides that a grant of summary judgment pursuant to Article 966(E) shall not constitute a final judgment for purposes of an immediate appeal, even though Article 966(E) authorizes a summary judgment that is dis-positive of a particular defense. And, despite the contentions of the parties, the judgment is not one on liability. Although, as a practical matter, the district court's ruling dismissing the affirmative defense of duress essentially determines the outcome of the case, there is no judgment granting the Monterrey Center’s claims. Moreover, LSA-C.C.P. art. 1915(A)(5) provides that a court may sign a judgment on liability only where the issue has been "tried separately by the court,” and there was no trial or motion for summary judgment on the issue of liability in this case.
      The judgment is also not subject to being designated as a final judgment under Article 1915(B). LSA-C.C.P. art. 1915(B)(1) provides: "When a court renders a partial judgment or partial summary judgment or sustains an exception in part, as to one or more but less than all of the claims, demands, issues, or theories, whether in the original demand, reconventional demand, cross-claim, third party claim, or intervention, the judgment shall not constitute a final judgment unless it is designated as a final judgment by the court after an express determination that there is no just reason for delay.” The affirmative defense of duress was presented in an answer and not "in the original demand, re-conventional demand, cross-claim, third party claim, or intervention.” Therefore, Article 1915(B)(1) does not provide the authority for the court to designate such an interlocutory judgment as final.

        . Plaintiff relies on Sid-Mar's Restaurant & Lounge, Inc. v. Gardner, 02-1109 (La.App. 5th Cir.3/25/03), 844 So.2d 178, in support of its position that economic stress and emotional stress do not constitute legal duress sufficient to vitiate consent to a lease. However, we note that the fifth circuit’s holding in Sid-Mar's is inconsistent with its opinion in Standard Coffee Service Company v. Babin, 472 So.2d 124, 127 (La.App. 5th Cir.1985), where the fifth circuit affirmed the trial court’s ruling concluding that an employment contract was adhesive in nature and that the defendant felt coerced, by threat of economic vulnerability, into signing the contract. The fifth circuit stated "Babin was faced with being deprived of his economic security, although a healthy male and able to earn a living. He was in a vulnerable position: either sign or be fired." This court, in Averette v. Industrial Concepts, Inc., 95-1286 (La.App. 1st Cir.4/30/96), 673 So.2d 642, writ denied, 96-1510 (La.9/20/96), 679 So.2d 442, did not preclude the possibility that economic duress may constitute legal duress, but ultimately affirmed the trial court’s ruling that although the plaintiffs suffered economic duress, after evaluating the credibility of the witnesses and the circumstances, determined the economic duress was not produced by improper threats and therefore did not constitute legal duress. Accordingly, this court affirmed the trial court ruling based on the discretion afforded the trial court on matters of credibility as the trial court had the opportunity to evaluate the witnesses and to assess the circumstances. This court also deemed significant the fact that plaintiffs had the benefit of counsel and, therefore, ample opportunity to review the contract at issue and investigate possible alternatives.

      . We note, for example, that no evidence of the purchase agreement on the Government Street property has been offered by either party, even though said agreement is pivotal to the position of both parties. Moreover, in brief, plaintiff argues that defendants did not fear Ms. Kammer, because if they did, they would not have antagonized her by evicting her from property they owned prior to the sale of their Government Street property. However, as noted previously in this opinion, this court may not properly consider documents that are not sworn to in any way or identified and referenced by affidavit.


source: Caselaw Access Project

author: DOWNING, J. WHIPPLE, J.,

license: Public Domain

text:
    Chad BONVILLIAN v. STATE of Louisiana through the DEPARTMENT OF INSURANCE.
    No. 2008 CA 0591.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 23, 2008.
    Rehearing Denied Jan. 22, 2009.

      Michael S. Zerlin, Thibodaux, LA, for Plaintiff/Appellee, Chad Bonvillian.
    Terrel J. Broussard, New Orleans, LA, for Defendant/Appellant, Louisiana Department of Insurance.
    Before CARTER, C.J., WHIPPLE and DOWNING, JJ.
   DOWNING, J.

| ?The Louisiana Department of Insurance (Department) appeals a district court judgment granting Chad Bonvillian’s motion for a partial summary judgment and upholding an administrative law judge (ALJ) decision. The judgment declared that Bonvillian was entitled to reinstatement of his bail bond agent license; the judgment further ordered that the license be reinstated retroactively to the date of the ALJ’s decision. For the following reasons, we affirm the district court judgment.

PERTINENT FACTS AND PROCEDURAL HISTORY

In July 2003, an administrative law judge in the Louisiana Division of Administrative Law issued a decision and order, overruling the Department’s action denying Bonvillian’s request for the renewal of his bail bond agent license and instructing the Department to renew the license. The ALJ denied rehearing. The relevant facts and related history are provided in an earlier opinion pertaining to the ALJ’s ruling in the instant case, entitled, Bonvillian v. Department of Insurance, 04-0332 (La. App. 1 Cir. 2/16/05), 906 So.2d 596, writ not considered, 05-0776 (La.5/6/05), 901 So.2d 1081. The controversy apparently was removed to and remanded from the U.S. district court, according to the briefs and Bonvillian, 04-0332 at p. 2 n. 1, 906 So.2d at 598 n. 1.

In December 2005, Chad Bonvillian filed a petition in this matter in the district court, entitled, “Petition for Declaratory Judgment and Damages.” In the petition, Bonvillian sought declaratory relief, affirmative relief, and damages assertedly arising from the Department’s wrongful refusal to issue him a bail bonding license despite the ALJ decision. In his petition, Bonvillian sought a judgment declaring his right to a bail bond agent license. Additionally, Bonvillian | .¡prayed for reinstatement of his license and for damages allegedly resulting from the Department’s wrongful refusal to issue him a license.

Bonvillian subsequently filed a motion for partial summary judgment seeking a finding that the order of the ALJ was final and absolute. This motion was heard in February 2008. The court granted Bon-villian’s motion and ordered that the judgment rendered by the ALJ on July 8, 2003 be final and absolute. The district court further ordered the Department to reinstate Bonvillian’s license. Judgment was rendered accordingly. From that judgment the Department appeals, alleging the following:

1.The district court erred by ordering the reinstatement of [Bonvillian’s] license in a declaratory judgment action because the function of a declaratory judgment is only to establish the rights of the parties or express the court’s opinion on a question of law.
2. The district court abused its discretion and was clearly wrong by granting summary judgment on a declaratory judgment action when it was biased by the findings of an ALJ that were contrary to the law.
3. The District Court abused [its] discretion by disregarding a decision of the Louisiana Supreme Court, Wooley v. State Farm Fire & Cas. Ins. Co.,[] in deciding that there was a case in controversy.

DISCUSSION

Standard of Review

Reviewing courts review summary judgments de novo, using the same criteria that govern the trial court’s determination of whether summary judgment is appropriate; i.e., whether there is any genuine issue of material fact and whether the movant is entitled to judgment as a matter of law. Samaha v. Rau, 07-1726, p. |43 (La.2/26/08), 977 So.2d 880, 882-83. Pursuant to La. C.C.P. art. 1877, declaratory judgments may be reviewed as other orders, judgments, and decrees. “ ‘Accordingly, the character of [an] action as one seeking declaratory judgment does not affect the standard of review of summary judgment.’ (Citation omitted.)” Phoenix Associates Land Syndicate, Inc. v. E.H. Mitchell & Co., L.L.C. and Steven M. Furr, 07-0108, p. 10 (La.App. 1 Cir. 9/14/07), 970 So.2d 605, 612, writ denied, 07-2365 (La.2/1/08), 976 So.2d 723.

Summary Judgment

On our de novo review, we conclude that the material facts are undisputed and that Bonvillian is entitled to judgment in his favor as a matter of law. The undisputed facts include the following. The ALJ decision and order became a final, enforceable judgment at the latest when the Louisiana Supreme Court did not consider writs in Bonvillian v. Department of Ins., 05-0776 (La.5/6/05) 901 So.2d 1081. See Wooley v. State Farm Fire and Cas. Ins. Co., 04-882, pp. 36-37 (La.1/19/05), 893 So.2d 746, 771. The ALJ’s final, enforceable judgment ordered the Department to issue the license, as follows:

IT IS HEREBY ORDERED that the Department of Insurance renew Mr. Chad M. Bonvillian’s Louisiana resident property and casualty producer’s license so that he may continue to operate as a bail bond agent in this state until such time as he fails to qualify under the terms of the Insurance Code.
IT IS FURTHER ORDERED that this decision serves as written consent from the State of Louisiana, as contemplated under 18 U.S.C. 1033(e)(2), for Mr. Chad M. Bonvillian to hold a Louisiana resident property and casualty producer’s license in this state even though his activities may affect interstate commerce.

Despite the ALJ’s order being a final judgment, the Department has yet to issue a bail bonding license to Bonvillian.

Under these facts, we conclude the trial court did not err in declaring that Bonvilli-an was entitled to reinstatement of his bail bonding license.

1 ¡¡The trial court’s order that the Department immediately reinstate Bonvil-lian’s license is a bit more problematic since Bonvillian did not specifically ask for this relief in his motion for summary judgment, though he did ask for it in his petition. Even so, at the beginning of the hearing on the motion for summary judgment, Bonvillian’s counsel informed the court and opposing counsel that he was asking the court “to order the Department of Insurance to return the license.” In response, the Department’s counsel made many arguments but did not object to the consideration of such an order.

Louisiana Code of Civil Procedure art. 862 provides generally that “a final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings and the latter contain no prayer for general and equitable relief.” The court in Gray v. Louisiana Power & Light Co., 247 So.2d 137, 141 (La.App. 4 Cir.1971) applied this article, in conjunction with La. C.C.P. art. 2164, to a well-founded summary judgment motion in which the applicant did not request appropriate relief. The Gray court granted the applicant the relief to which he was entitled, relying on the codal articles for the authority to do so.

Here, the same evidence that entitles Bonvillian to a declaration that he is entitled to a bail bonding license also entitles him to an order for its issuance. Accordingly, we affirm the trial court’s judgment.

The Department’s Arguments

The Department seems to suggest in its arguments that it has the right to re-litigate the same issues that were before the ALJ, asserting that the ALJ’s decision was incorrect. This argument lacks merit. Once the ALJ’s decision became a final _yudgment, principles of res judicata preclude re-litigation. And the Department has not pled or argued any exceptional circumstances or other exception to the general rules of res nidicata per La. R.S. 13:4232.

In this regard, we also observe that La. R.S. 49:992(B)(2) was amended by Acts 2005, No. 204 to add the following significant language: “Upon the issuance of such a final decision or order, the agency or any official thereof shall comply fully with the final order or decision of the administrative law judge.” This language is interpretive and remedial and is to be given retroactive effect. Wooley v. State Farm Fire and Cas. Ins. Co., 05-1490, pp. 6-7 (La. App. 1 Cir. 2/10/06), 928 So.2d 618, 622.

The Department further suggests that no justiciable controversy exists in the matter before us. But here, where Bonvillian seeks declaratory and affirmative relief through his petition, we find no merit in the Department’s argument. “[A] justiciable controversy has been broadly defined as one involving ‘adverse parties with opposing claims ripe for judicial determination,’ involving ‘specific adversarial questions asserted by interested parties based on existing facts.’ ” Id., 05-1490 at p. 5, 928 So.2d at 622 (citation omitted). Here, Bonvillian asserts that he is entitled to enforcement of the ALJ’s order. The Department contends that he is not. This is certainly a dispute ripe for review.

Accordingly, we find no merit in the Department’s arguments.

| .DECREE

For the foregoing reasons we affirm the judgment of the trial court. Costs of this appeal in the amount of $1,838.00 are assessed against the State of Louisiana through the Department of Insurance.

AFFIRMED.

WHIPPLE, J., concurs for reasons assigned.

WHIPPLE, J.,

concurring.

1 pursuant to LSA-R.S. 49:964(A)(2), the agency is precluded from seeking judicial review of an ALJ’s final decision. Thus, I concur in the result reached by the majority, as the res judicata discussion therein ultimately defeats the Department’s arguments.

      . The ALJ issued a “Decision and Order” on July 3, 2003, overruling the Department’s action in denying a license renewal and stating that Chad Bonvillian was wrongfully denied the renewal of his bail bond agent license.

      . The Department filed a cross motion for summary judgment seeking a declaration that Bonvillian was not entitled to a renewal of his bail bonding license. The trial court did not hear this motion because it was not timely filed.

      . The damages and attorney fee portions of the suit were not adjudicated, and were reserved for future litigation.

      . This partial summary judgment issued pursuant to La. C.C.P. art. 966 E was certified as final on November 19, 2008, after this court issued a show cause order on the issue of finality of the judgment. On review, we agree with the certification in that the partial judgment at issue resolves a significant portion of the underlying litigation and final resolution of the issues addressed could expedite resolution of the remaining issues, damages and attorney fees.

      . 04-0882, pp. 23-27 (La.1/19/05), 893 So.2d 746, 764-66.

      . Louisiana Code of Civil Procedure art. 2164 provides in pertinent part that "[t]he appellate court shall render any judgment which is just, legal, and proper upon the record on appeal.”

      . Louisiana Revised Statutes 13:4231 provides as follows:
      Except as otherwise provided by law, a valid and final judgment is conclusive between the same parlies, except on appeal or other direct review, to the following extent:
      (1)If the judgment is in favor of the plaintiff, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and merged in the judgment.
      (2) If the judgment is in favor of the defendant, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and the judgment bars a subsequent action on those causes of action.
      (3) A judgment in favor of either the plaintiff or the defendant is conclusive, in any subsequent action between them, with respect to any issue actually litigated and determined if its determination was essential to that judgment.


author: WHIPPLE, J.

text:
    EAST TANGIPAHOA DEVELOPMENT COMPANY, LLC and Byard Edwards, Jr. v. BEDICO JUNCTION, LLC, Wayne Glascock, Don Ayres and Harold Perrilloux.
    No. 2008 CA 1262.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 23, 2008.
    Writ Denied March 27, 2009.

      Byard “Peck” Edwards, Jenel Secrease, Ponchatoula, LA, and Jack M. Alltmont, Harold A. Aucoin, New Orleans, LA, and Henry G. Terhoeve, Denham Springs, LA, and Robert B. Nolan, Malcolm D. Meyer New Orleans, LA, and Thomas A. Gennu-sa, II, Joseph S. Piacun, Metairie, LA, for Plaintiffs/Appellants, East Tangipahoa Development Company, LLC and Byard Edwards, Jr.
    A. Shelby Easterly, Denham Springs, LA, for Defendants/Appellees, Bedico Junction, LLC, Don Ayres, and Wayne Glascock.
    Sharon Smith, New Orleans, LA, for Defendant, United States Army Corps of Engineers.
    Before CARTER, C.J., WHIPPLE and DOWNING, JJ.
   WHIPPLE, J.

| sThis matter is before us on appeal by plaintiffs from the trial court’s grant of summary judgment in favor of various defendants, dismissing plaintiffs’ claims against those defendants, and denying plaintiffs leave to file a second supplemental and amended petition naming the United States of America as defendant. For the following reasons, we affirm in part, reverse in part, and remand.

FACTS AND PROCEDURAL HISTORY

By Credit Deed dated December 19, 1997, plaintiff East Tangipahoa Development Co., L.L.C. (“East Tangipahoa Development”) conveyed to defendants David Scott Sandage and Harold H. Perrilloux an undivided 68% interest in an approximately 527-acre tract of land in Tangipahoa Parish for the purpose of the development of a golf course community. The purchase price set forth in the credit deed was $500,000.00, with East Tangipahoa Development to immediately receive $100,000.00, with the remaining $400,000.00 to be paid as evidenced by a promissory note. Pursuant to the credit deed, the promissory note was payable upon the fulfillment of certain conditions, including commencement of construction of a golf course (to be developed on the remaining 32% undivided interest of the tract of land), approval of financing, and “[ajpproval of wetlands determination by Corps of Engineers.”

On that same date, the parties also executed an agreement (hereinafter referred to as the “Development Agreement”) whereby Sandage and Perrilloux, designated as developers, and East Tangipahoa Development | ¿agreed, as additional consideration, to a division of the proceeds from the future sale of “lots” within the development.

Thereafter, in November of 2001, Sand-age and Perrilloux transferred their contractual rights under the Credit Deed and the Development Agreement to Bedico Junction, L.L.C., through its managing members, Don Ayres and Wayne Glascock. The Credit Deed and the Development Agreement were then amended on November 16, 2001, by East Tangipahoa Development and Bedico Junction, to replace Sandage and Perrilloux, as vendees, purchasers, and/or developers, with Bedico Junction and to provide for certain changes with regard to the payment of additional consideration by Bedico Junction to East Tangipahoa Development, including payment of the additional sum of $150,000.00, and cancellation of the promissory note. The November 16, 2001 “Amendment to Development Agreement” also provided as follows:

14. Developer shall have 24 months from the date of this Agreement to obtain all necessary licenses, permits, or other approval from all required State and Federal agencies including without limitation, Wetland’s permit from the U.S. Corp. of Engineers, in order to proceed with the Project as defined in this Agreement. At the termination of the 24th month extending from the date of this Agreement, or upon receipt of written notice from Developers delivered to Seller that Developers are unable to obtain all required licenses or permits to proceed with the Project, whichever occurs first, and provided said 24 month period is not extended by Agreement between Seller and Developer, Seller shall have 180 days from said date to re-purchase the property purchased by Developers from Seller in that certain Amended Credit Deed, and the repurchase price to be paid by Seller to Developers shall be determined as follows:

a). Initial $100,000.00 paid to Seller at the time of the original Credit Deed.

b). $150,000.00 cash paid by Developer to Seller at the time of the execution of the Amended Credit Deed dated November 16, 2001.

|fic). Return to Developer of all Development Costs as defined in the Development Agreement including without limitation, all expert and consulting fees, attorney’s fees (“not related to litigation by and between the parties,”) interest expense, and any and all other out-of-pocket expense incurred by Developer from the original purchase of the property from Seller through the date of repurchase of the property by Seller from Developers in accordance with this Agreement.

15. Should Seller fail to execute the right of re-purchase within the 180 day period provided herein, all rights, limitations and all provisions of the Credit Deed as amended and Development Agreement as amended shall terminate with no surviving rights or causes of action granted to any party herein. No disagreement or dispute between Seller and Developer as to the legitimacy of “Development Costs” to be paid by Seller to Developer shall be cause for an extension of the 90 day [sic] re-purchase period, but said amount in dispute shall be es-crowed and the parties agree to Mediate or if necessary, Arbitrate the resolution of the disputed Development Costs.

(Emphasis added).

Bedico Junction did not secure all the necessary licenses and permits within the twenty-four-month permit period following the November 16, 2001 execution of the Amendment to Development Agreement. Thereafter, by letter dated October 21, 2005, East Tangipahoa Development made demand upon Bedico Junction to exercise its right to repurchase the tract of land.

When Bedico Junction did not acquiesce in the repurchase of the tract of land, East Tangipahoa Development and Byard Edwards, Jr., as a principal of East Tangipa-hoa Development, instituted this suit against Bedico Junction, Glascock, Ayres, and Perrilloux, claiming rights of ownership to the property, seeking to exercise the option to reacquire the property, and seeking damages for the failure of the defendants to develop the property, breach of contract, and alleged attempts to defraud East | (¡Tangipahoa Development. In their petition, plaintiffs averred that the Amendment to Development Agreement specifically provided that the twenty-four-month permit period for obtaining licenses and permits could be extended, that extensions had been granted, and that, at the time suit was filed, the agreement was subject to such an extension.

In response to the petition, defendants filed a motion for summary judgment, contending that East Tangipahoa Development had not timely sought to repurchase the property during the 180-day period following Bedico Junction’s failure to obtain all necessary licenses and permits in the twenty-four-month permit period provided for in the Amendment to Development Agreement. Defendants further averred that the parties had not executed a written document extending the 180-day term for repurchase, a document which the law required to be in writing as affecting immovable property, and, thus, that East Tangipahoa Development had no remaining ownership rights in the property and no remaining rights under the contracts between the parties. Accordingly, defendants contended that they were entitled to judgment in their favor as a matter of law, dismissing plaintiffs’ claims of ownership to the property and for damages.

In opposition to the motion, plaintiffs averred that in May and June of 2008, because of skepticism about Bedico Junction’s progress, East Tangipahoa Development began efforts to repurchase the property, but that after meeting with Per-rilloux and Glascock, Edwards, on behalf of East Tangipahoa Development, orally granted Bedico Junction “an open ended extension of time” of the twenty-four-month permit period (“the oral | .¡extension agreement”). Thus, plaintiffs contended that the 180-day period for exercising the repurchase option had never started to run.

Following a hearing on the motion, the trial court granted the defendants’ motion for summary judgment and dismissed with prejudice plaintiffs’ claims against defendants. In reasons for judgment, the trial court concluded that any alleged oral agreement to extend the twenty-four-month period that triggered the running of the repurchase-option period was invalid in that an agreement pertaining to title to immovable property must be in writing. The judgment also denied plaintiffs leave of court to file a Second Supplemental and Amended Petition, naming the United States of America as a defendant. From this judgment, plaintiffs appeal, listing six assignments of error.

BURDEN OF PROOF AND STANDARD OF REVIEW FOR SUMMARY JUDGMENT

A motion for summary judgment is properly granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(B). The summary judgment procedure is expressly favored in the law and is designed to secure the just, speedy, and inexpensive determination of non-domestic civil actions. LSA-C.C.P. art. 966(A)(2).

The mover bears the burden of proving that he is entitled to summary judgment. LSA-C.C.P. art. 966(C)(2). However, if the mover will not bear the burden of proof at trial on the subject matter of the motion, he need only demonstrate the absence of factual support for one or more essential elements of his opponent’s claim, action, or defense. LSA-C.C.P. art. 966(C)(2). If the moving party points out that there is an absence of factual |ssupport for one or more elements essential to the adverse party’s claim, action, or defense, then the nonmoving party must produce factual support sufficient to satisfy his evidentiary burden at trial. LSA-C.C.P. art. 966(C)(2). If the mover has put forth supporting proof through affidavits or otherwise, the adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or otherwise, must set forth specific facts showing that there is a genuine issue for trial. LSA-C.C.P. art. 967(B).

In ruling on a motion for summary judgment, the trial court’s role is not to evaluate the weight of the evidence or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable fact. Hines v. Garrett, 2004-0806 (La.6/25/04), 876 So.2d 764, 765. Despite the legislative mandate that summary judgments are now favored, factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing the motion, and all doubt must be resolved in the opponent’s favor. Willis v. Medders, 2000-2507 (La.12/8/00), 775 So.2d 1049, 1050.

In determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria that govern the trial court’s determination of whether summary judgment is appropriate. See Barnett v. Watkins, 2006-2442 (La.App. 1st Cir.9/19/07), 970 So.2d 1028, 1033, writ denied, 2007-2066 (La.12/14/07), 970 So.2d 537.

DISCUSSION

With regard to the trial court’s conclusion as to the invalidity of the oral extension agreement, plaintiffs aver in assignment of error number four that the trial court erred in determining as a matter of law that the extension agreement had to be in writing pursuant to LSA-C.C. art. 1839. | ^Additionally, through assignment of error number three, plaintiffs contend that the trial court erred in refusing to recognize the oral extension agreement as enforceable where: (1) an oral agreement was contemplated by the earlier written agreement; (2) the necessity of a writing was waived by the parties; and (3) the oral extension agreement was proven and acknowledged by the parties.

Alternatively, in their second assignment of error, plaintiffs contend that the trial court erred in failing to recognize detrimental reliance as an additional ground for enforcing the oral extension agreement. In a related argument, plaintiffs assert in assignment of error number five that the trial court erred in failing to determine that East Tangipahoa Development’s repurchase option was deemed satisfied pursuant to LSA-C.C. art. 1772, in that East Tangipahoa Development’s failure to timely fulfill the repurchase option was due to the fault of Bedico Junction. Specifically, plaintiffs contend that East Tangipahoa Development did not timely repurchase the property due to its reliance on the promises of Bedico Junction (as to the oral extension agreement and the progress of the development).

Additionally, in their first assignment of error, plaintiffs contend that the trial court erred in dismissing their suit in its entirety where certain claims were not dependent on the validity of the extension agreement, i.e., their claims of fraud and breach of contract based on the written agreements. Finally, in their sixth assignment of error, plaintiffs aver that the trial court erred in refusing to allow them to file a second supplemental and amended petition.

| lf)Invalidity of Oral Extension Agreement

(Assignments of Error Nos. 3 & 4)

Agreements relating to the transfer of or option to purchase immovable property must be in wilting in a form prescribed by LSA-C.C. art. 1839. See LSA-C.C. art. 2620; Southern Casing of Louisiana, Inc. v. Houma Avionics, Inc., 2000-1930, 2000-1931 (La.App. 1st Cir.9/28/01), 809 So.2d 1040, 1051; and Casey v. National Information Services, Inc., 2004-0207 (La.App. 1st Cir.6/10/05), 906 So.2d 710, 719 & n. 10, writ denied, 2005-2210 (La.3/24/06), 925 So.2d 1325.

In the instant case, plaintiffs argue that the trial court erred in concluding that the oral extension agreement had to be in writing because the agreement did not relate to the transfer or sale of, or the option to buy or sell, immovable property. Rather, they contend that the oral extension agreement related only to Bedico Junction’s obligation to develop the property and obtain necessary permits. Thus, they contend that the oral extension agreement did not have to be in writing.

Such an interpretation of paragraph 14 of the Amendment to Development Agreement is strained at best. Paragraph 14, read in its entirety, relates to East Tangi-pahoa Development’s right to repurchase the property upon Bedico Junction’s failure to timely obtain all necessary licenses and permits. Any attempt to separate the portion of paragraph 14 setting forth the time period in which Bedico Junction was required to obtain the licenses and permits from the portion of the paragraph setting forth the resultant time frame for exercise of the repurchase option is unworkable. Indeed, the expiration of the permit period initiates the beginning of the repurchase option period. Thus, we reject plaintiffs’ argument that any extension of the permit period, the triggering event in the contract forjjjcommencement of the option to repurchase, was not required to be in writing.

Plaintiffs additionally argue that the trial court erred in finding the alleged oral extension agreement to be invalid because plaintiffs established, in opposition to the motion for summary judgment, that an oral extension to the permit period was contemplated by the written Amendment to Development Agreement, the actions of the parties evidence an intent to waive any writing requirement, and the oral extension agreement was proven and acknowledged by the parties.

At the outset, we find no merit to plaintiffs’ argument that the Amendment to Development Agreement contemplated an oral extension of the permit period. Paragraph 14 of the Amendment to Development Agreement provides, in pertinent part, that “[a]t the termination of the 24th month extending from the date of this Agreement, or upon receipt of written notice from Developers delivered to Seller that Developers are unable to obtain all required licenses or permits to proceed with the Project, whichever occurs first, and provided said 24 month period is not extended by Agreement between Seller and Developer,” East Tangipahoa Development “shall have 180 days from- said date to re-purchase the property.” While plaintiffs rely on the fact that the written agreement did not specifically state that an extension of the permit period be in writing, we cannot conclude that the mere absence of the word “written” to qualify “Agreement” evidences an affirmative intent by the parties to eliminate the legal requirement of a written agreement.

Nor do we find merit to plaintiffs’ arguments that the oral extension agreement should have been held to be enforceable because the actions of the parties evidenced an intent to waive the writing requirement. With |i2regard to plaintiffs’ contention that they established that both parties relied upon an oral extension agreement, we note that affidavit statements of third parties establishing that, prior to the expiration of the permit period, Edwards orally indicated to Bedico Junction that he would grant an extension and told a third party that he had agreed to an extension of the permit period likewise do not establish that a valid written extension was thereafter formally agreed upon or confected by the parties or that the parties agreed to waive or dispense with the legal formality of a writing. Additionally, plaintiffs’ suggestion that East Tangipahoa Development’s failure to repurchase the property during the 180-day period following expiration of the twenty-four-month permit period establishes that the parties relied upon an oral extension is self-serving and does not create an issue of fact as to the lack of a valid extension agreement.

Accordingly, we find no error in the trial court’s conclusion that, as a matter of law, the defendants established the lack of a valid, written extension of the twenty-four-month permit period and, consequently, the lack of a valid extension of the 180-day repurchase option. These arguments lack merit.

Detrimental Reliance

(Assignments of Error Nos. 2 & 5)

In assignment of error number two, plaintiffs contend that the trial court erred in failing to recognize detrimental reliance as an additional ground for enforcing the oral extension agreement. We note at the outset that plaintiffs did not set forth a claim of detrimental reliance on the alleged oral extension agreement in their petition or raise this issue in the trial court in their memoranda in opposition to defendant’s motion for summary judgment.

| ^Issues not submitted to the trial court for decision will generally not be considered by the appellate court on appeal. Walston v. Lakeview Regional Medical Center, 99-1920 (La.App. 1st Cir.9/22/00), 768 So.2d 238, 243-244, writ denied, 2000-2936 (La.12/15/00), 777 So.2d 1229; Brown v. Automotive Casualty Insurance Company, 93-2169 (La.App. 1st Cir.10/7/94), 644 So.2d 723, 732, writ denied, 94-2748 (La.1/6/95), 648 So.2d 932. Accordingly, we conclude that this issue is not properly before this court.

However, even assuming these arguments were preserved for appellate review, we find no error by the trial court in dismissing plaintiffs’ claims seeking enforcement of the repurchase option and/or damages relating to East Tangipahoa Development’s failure to timely exercise the option. Louisiana Civil Code article 1967, enacted by Louisiana Acts 1984, No. 331, § 1, effective January 1, 1986, legislatively established a cause of action for detrimental reliance, which had been previously recognized in Louisiana jurisprudence. Article 1967 provides as follows:

Cause is the reason why a party obligates himself.
A party may be obligated by a promise when he knew or should have known that the promise would induce the other party to rely on it to his detriment and the other party was reasonable in so relying. Recovery may be limited to the expenses incurred or the damages suffered as a result of the promisee’s reliance on the promise. Reliance on a gratuitous promise made without required formalities is not reasonable.

The doctrine of detrimental reliance is designed to prevent injustice by barring a party from taking a position contrary to his prior acts, admissions, representations, or silence. To prevail on a detrimental reliance claim, Louisiana law does not require proof of a formal, valid, and enforceable contract. Rather, in determining whether a claim for detrimental reliance has been established, the focus is on whether the party proved three elements by 114a preponderance of the evidence: (1) a representation by conduct or word; (2) justifiable reliance; and (3) a change in position to one’s detriment because of the reliance. Suire v. Lafayette City-Parish Consolidated Government, 2004-1459 (La.4/12/05), 907 So.2d 37, 59.

On appeal, plaintiffs contend: (1) that East Tangipahoa Development and Bedico Junction orally agreed to an extension of the permit period; (2) that because of the agreement, East Tangipahoa Development did not exercise the repurchase option; and (3) that its reliance on the oral agreement was justified. However, because we conclude that any reliance on an oral extension agreement was not justifiable, we find no merit to the argument that the trial court’s grant of summary judgment should be reversed on the basis of its failure to recognize justifiable reliance as an additional ground for enforcing the purported oral extension.

In Morris v. Friedman, 94-2808 (La.11/27/95), 663 So.2d 19, the Louisiana Supreme Court addressed for the first time the issue of whether a party could prevail on a claim for detrimental reliance based on an oral promise where the law required such an agreement to be in writing. Concluding that the positive legal requirement of a written contract should prevail over a claim in equity, the supreme court concluded that the claim of detrimental reliance must fail. Morris, 663 So.2d at 24-25. While Morris was decided under the law as it existed prior to the enactment of LSA-C.C. art.1967, we find portions of the supreme court’s analysis helpful herein. Specifically, with regard to the issue of justifiable reliance, the supreme court held:

Absent fraud, or at least affirmative misrepresentations as to the necessity of a writing, see, e.g., Pittman v. Pomeroy, 552 So.2d 983 (La.App. 2nd Cir.1989), it is almost always the case that it will be unreasonable to rely on an oral promise | iBwhere the law requires such a promise to be in writing to be enforceable.

Morris, 663 So.2d at 26 n. 14 (Emphasis added).

More recently, the Fifth Circuit Court of Appeal rejected a claim of detrimental reliance pursuant to LSA-C.C. art.1967, where the claim was based on an alleged oral agreement to sell immovable property. John W. Stone Oil Distributor, L.L.C. v. River Oaks Contractor & Developers, Inc., 07-1001 (La.App. 5th Cir.5/27/08), 986 So.2d 103, 108-109, writ denied, 2008-1397 (La.9/26/08), 992 So.2d 992. In that case, the plaintiff business was interested in purchasing land for future expansion of its facilities, and the business allegedly orally agreed with defendants that defendants would purchase the entire tract of land and then sell a portion of the land to the plaintiff business. In affirming an award of summary judgment in favor of defendants, the court concluded that defendants were entitled to summary judgment dismissing plaintiffs’ claim pursuant to LSA-C.C. art.1967 because “it is not reasonable for a sophisticated businessman such as [the principal of the plaintiff business] to rely on an oral contract to sell immovable property given the firmly rooted statutory law and jurisprudence requiring such agreements to be in writing.” John W. Stone Oil Distributor, L.L.C., 986 So.2d at 105, 108-109.

Similarly, in the instant case, it was not reasonable for Edwards, the principal of East Tangipahoa Development, to rely on an alleged oral agreement to extend the permit period and, consequently, the repurchase option period. The record demonstrates that Edwards was intimately involved in the project to develop this tract of land into a golf course community and, more importantly, that, in addition to being a businessman, he is an attorney.

| ^Additionally, we note that plaintiffs offered no evidence in opposition to the defendants’ motion for summary judgment to establish that Bedico Junction made any representations whatsoever to East Tangi-pahoa Development dr Edwards that any extension of the permit period need not be in writing. See Morris, 663 So.2d at 26; cf. Pittman v. Pomeroy, 552 So.2d 983, 986-987 (La.App. 2nd Cir.1989). Thus, we conclude that any reliance on an oral promise or agreement affecting this tract of land was not reasonable.

For the same reason, we find no merit to plaintiffs’ assertion in assignment of error number five that the trial court erred in failing to deem the repurchase provision of the Amendment to Development Agreement satisfied pursuant to LSA-C.C. art. 1772. Louisiana Civil Code article 1772 provides that “[a] condition is regarded as fulfilled when it is not fulfilled because of the fault of a party with an interest contrary to the fulfillment.” The record is devoid of any evidence that Bedi-co Junction represented to East Tangipa-hoa Development that a written amendment to the permit period and related repurchase option period was not legally required.

Accordingly, we find no merit to the assertion that the trial court should have recognized the validity of the alleged oral extension agreement on the basis of detrimental reliance under LSA-C.C. art.1967 or should have concluded that the repurchase option was deem satisfied pursuant to LSA-C.C. art. 1772.

Claims of Fraud and Breach of Contract

(Assignment of Error No. 1)

In this assignment of error, plaintiffs contend that the trial court erred in granting the motion for summary judgment and dismissing their claims in their entirety based solely on its determination that the permit period and 117resulting repurchase option period were not validly extended, given that some of plaintiffs’ claims are not based upon the oral extension agreement. Specifically, plaintiffs contend that their claims of fraud and breach of contract are not dependent upon the validity of the oral extension agreement. In them petition, plaintiffs set forth their claims of breach of contract and fraud as follows:

Petitioners have no reason to believe that the defendants at any time intended to comply with the agreements between the parties, but rather at all times they engaged in a scheme to attempt to defraud petitioners and therefore breached the contract by furtively failing to go forward with them contractual duties to develop the property in a business like manner.

However, the Amendment to Development Agreement does not support plaintiffs’ contention that the mere fact that defendants failed to acquire all permits in the twenty-four-month permit period would render defendants liable for breach of contract. Rather, the contract itself specifically sets forth the remedy available to East Tangipahoa Development in such an event, ie., the timely exercise of the repurchase option. Additionally, as set forth in detail above, the evidence in opposition to summary judgment is devoid of any evidence of any actions or representations by defendants to East Tangipahoa Development to indicate that a written agreement was not legally required herein, as would support any claim of fraud on behalf of defendants. Accordingly, we find no merit to this assignment of error either.

The portion of the trial court’s judgment granting defendants’ motion for summary judgment and dismissing plaintiffs’ claims against them is, therefore, affirmed.

1 V/Frial Court’s Refusal to Allow Filing of Second Supplemental and Amended Petition

(Assignment of Error No. 6)

In this assignment of error, plaintiffs contend that the trial court erred in refusing to allow them to file their second supplemental and amending petition naming the United States of America as defendant. In the pleading styled “Second Supplemental & Amended Petition for Damages,” plaintiffs named the United States of America as defendant and averred that the United States, through the United States Army Corps of Engineers (“the Corps”), was liable for prolonging the permitting process for the tract of land at issue pursuant to the Clean Water Act, and for failing to release the tract of land despite actual knowledge by the Corps that it lacked regulatory jurisdiction over the tract of land.

In written reasons for judgment denying plaintiffs leave to file the second supplemental and amended petition, the trial court stated as follows:

The Court notes that, after the hearing on this motion [for summary judgment] had been set, and one week prior to the hearing date, Plaintiffs filed a second supplemental and amended petition for damages, naming the United States of America as a defendant, based on claims involving the wetlands permitting process governed by the Corps of Engineers which they contend amounted to a taking without payment of just compensation, prohibited by the Fifth Amendment. It is noted that this pleading was filed without leave of court or written consent of the adverse party, as required by Code of Civil Procedure Article 1151.
Further, the Court notes that Plaintiffs previously had filed their first supplemental and amending petition (also without leave of court) in October of 2006, naming the United States Army Corps of Engineers as a defendant in this proceeding. That action resulted in the removal of this case to the Eastern District of Louisiana (Civil Action No. 06-9256). On August 20, 2007, Judge Carl J. Barbier granted the Corps’ motion to involuntarily dismiss Plaintiffs’ claims based on a lack of waiver of sovereign immunity. According to Judge Barbier’s ruling, Plaintiffs had filed an amended petition in that Court, also seeking to establish a “taking” claim under the Fifth Amendment. That claim was likewise dismissed in Federal court on the same basis. The case was then remanded back to State court on the remaining claims.
BaUnder these circumstances, this Court will deny leave to file the second supplemental and amended petition in state court, and will dismiss this suit in its entirety.

In support of their contention that the trial court erred in striking their second supplemental and amended petition, plaintiffs note that LSA-C.C.P. art. 1151 provides that “[a] plaintiff may amend his petition without leave of court at any time before the answer thereto is served.” (Emphasis added). After the answer is served, a plaintiff may amend the petition only by leave of court or by written consent of the adverse party. LSA-C.C.P. art. 1151. Where leave of court is required, the decision to allow the filing of an amended pleading is within the sound discretion of the trial court. See Stockstill v. C.F. Industries, Inc., 94-2072 (La.App. 1st Cir.12/15/95), 665 So.2d 802, 810, writ denied, 96-0149 (La.3/15/96), 669 So.2d 428. In the instant case, despite the protracted procedural history of this case, Bedico Junction has never filed an answer.

We note that prior to the enactment of LSA-C.C.P. art. 1151, Louisiana Code of Practice article 419 provided that “after issue joined,” a plaintiff could amend his petition with leave of court. This article was interpreted to mean that prior to “joining of issue,” a plaintiff could amend his petition without leave of court. See Tarver v. Quinn, 149 La. 368, 377, 89 So. 216, 219-220 (1921).

Regarding the enactment of LSA-C.C.P. art. 1151, the 1960 Official Revision Comments provide as follows:

This article effects a change in the procedural law of Louisiana, but it provides a simple, workable rule as to amendments after the filing of answer within the discretion of the trial judge, as is provided under the federal practice and under all of the newer rules of civil procedure in other American jurisdictions.
Probably the most unworkable rules contained in the 1870 Code of Practice are Arts. 419 and 420 relating to the amendment of the petition and answer. The concepts of |^“joinder of issue” and “altering the substance of the demand” are so nebulous and impractical as to make any rules dependent upon them wholly unworkable.... For these reasons, the above article leaves the decision to the discretion of the trial judge who is in the best position to determine the matter.

Accordingly, because the concept of join-der of issue is no longer viable with regard to amendment of the petition, the determination of whether leave of court is needed for the filing of an amended petition focuses on whether the answer has been served. Because no answer was ever filed herein, we are constrained to conclude that plaintiffs were entitled to file the second supplemental and amended petition without leave of court. Accordingly, the trial court erred in denying plaintiffs leave to file the amended petition.

CONCLUSION

For the above and foregoing reasons, the portion of the February 25, 2008 judgment granting the motion for summary judgment filed by defendants Bedico Junction, L.L.C., Wayne Glascock, Don Ayres, and Harold Perrilloux and dismissing with prejudice plaintiffs’ claims against these defendants is affirmed.

The portion of the February 25, 2008 judgment denying plaintiffs’ leave to file their Second Supplemental and Amended Petition is reversed. This matter is remanded to the trial court for further proceedings consistent with the views expressed herein.

Costs of this appeal are assessed against plaintiffs, East Tangipahoa Development Company, L.L.C. and Byard Edwards, Jr.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

      . The Ponchatoula Recreational District was to be placed in possession by fee simple title of the 32% undivided interest in the tract of land to be developed as the golf course.

      . The Credit Deed and the Development Agreement were subsequently amended by the parties on March 6, 2000.

      . The record establishes that Edwards had inherited the 527-acre tract at issue. Edwards thereafter transferred a 32% undivided interest in the property to the Pontachatoula Recreational District and the remaining 68% undivided interest to East Tangipahoa Development.

      . While plaintiffs aver in this assignment of error that the trial court should have determined that the repurchase option was deemed satisfied, we note that all that was before the trial court was defendants' motion for summary judgment seeking dismissal of plaintiffs’ claims. Plaintiffs did not file a cross motion for summary judgment seeking a final ruling on their claims.


author: PARRO, J.

text:
    Roland and Katina LEWIS, Individually and on Behalf of the Minor Children, Rolando Lewis and Romash Lewis v. Imn JABBAR and Steve Ayyad d/b/a Ragusa’s Meat Market.
    No. 2008 CA 1051.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 12, 2009.
    Rehearing Denied Feb. 17, 2009.

      Alton T. Moran, Baton Rouge, LA, for Plaintiffs-Appellants, Roland and Katina Lewis, individually and on behalf of their minor children, Rolando and Romash Lewis.
    Dale R. Baringer, Benjamin J.B. Klein, Baton Rouge, LA, for Defendant-Appellee, Imn Jabbar.
    Thomas G. Buck, John C. Henry, David B. Parnell, Jr., Brett W. Tweedel, Blue Williams, L.L.P., Metairie, LA, for Defen-danh-Appellee, First Financial Insurance Co.
    Before PARRO, McCLENDON, and WELCH, JJ.
   PARRO, J.

12Roland Lewis and his wife, Katina Lewis, individually and on behalf of their minor children, Rolando and Romash (collectively, Lewis), appeal a summary judgment in favor of First Financial Insurance Company (First Financial), the liability insurer of Rajeh & Imn, Inc., d/b/a Ragusa’s Meat Market (Ragusa’s), dismissing Lewis’s claims on the basis that exclusion clauses in the First Financial policy precluded coverage for personal injuries Lewis sustained in Ragusa’s parking lot. For the following reasons, we reverse the judgment and remand this case to the district court.

FACTUAL AND PROCEDURAL BACKGROUND

At approximately 5:45 p.m. on December 5, 2004, Lewis was in the parking lot of Ragusa’s when gunfire erupted; he was shot in the right knee by a stray bullet and fell to the ground. Geri Chong, who was in her parked car near him, tried to escape the gunfire by driving away, hitting Lewis with her vehicle in the process and dragging him sixty-five feet onto an adjoining street. As a result of the shooting and the car accident, Lewis suffered severe injuries, allegedly including multiple fractures to his spine, ribs, pelvis, right scapula, and femur, plus liver lacerations and lung and chest contusions; he was hospitalized for almost a month and had at least eight surgical procedures.

In July 2005, Lewis sued Imn Jabbar and Steve Ayyad, claiming they were the owners and custodians of Ragusa’s. He alleged that after buying groceries, he left the store and was shot while on Ragusa’s premises. He claimed he was an innocent bystander to the shooting and that the driver of the car that ran over him and dragged him onto the street was also an innocent bystander who was trying to escape the gunfire. Lewis claimed the store owners knew there had been violent criminal activity near and on Ragusa’s premises, but they did not protect Ragusa’s customers with proper security and lighting. In an amending petition, Lewis alleged that Rajeh & Imn, Inc., a domestic corporation, was an additional owner of Ragu-sa’s and that First | ¡¡Financial was Ragu-sa’s insurer under a commercial general liability (CGL) policy.

First Financial moved for summary judgment, supporting its motion with a certified copy of its CGL policy and asserting that an assault and battery exclusion in the policy precluded coverage. Lewis opposed the motion, arguing that most of his injuries were not attributable solely to the gunshot wound, but were due to being hit and dragged by the fleeing car. Lewis contended that lack of proper lighting was the fault of Ragusa’s owners and was a cause of his injuries, since the driver could not see him due to poor lighting in the parking lot. First Financial filed an additional memorandum in support of its motion, attaching a copy of the police report and claiming the auto exclusion also applied.

According to the minutes of the court, in a hearing on December 3, 2007, several exceptions relating to insufficiency of service filed by various defendants were argued and dismissed as moot. First Financial’s motion for summary judgment was reassigned for hearing on March 3, 2008. After hearing arguments that day, the court stated:

No question whatsoever that the policy excludes bodily injuries or damages arising out of an assault and battery. I think that the shooting falls squarely within that.

Because so many of Lewis’s injuries were not related to the gunshot wound, the court also discussed the auto exclusion, noting that:

[M]y reading of the policy and applying it to the facts of this case, as well as the endorsement, the policy just does not seem to apply to any auto accident such as in this case. It’s a CGL policy, and I think under the facts of this case, Mr. Lewis’s claim would be against Ms. Chong and Ms. Chong’s insurer, the liability insurer of the vehicle she was driving, as opposed to First Financial and its CGL policy. And that’s even assuming I accept the premise that the lights in this case or the lack thereof were a contributing factor. So the Court will grant the motion for summary judgment as to First Financial, dismissing plaintiffs’ claims as against First Financial, with prejudice, at plaintiffs’ costs.

A judgment incorporating these rulings was signed March 25, 2008, and Lewis appealed that judgment.

|,.APPLICABLE LAW

An appellate court reviews a district court’s decision to grant a motion for summary judgment de novo, using the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94), 689 So.2d 730, 750. Summary judgment shall be rendered if there is no genuine issue as to material fact and the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(B). A summary judgment may be rendered on the issue of insurance coverage alone, although there is a genuine issue as to liability or damages. See LSA-C.C.P. art. 966(E); Bilbo for Basnaw v. Shelter Ins. Co., 96-1476 (La.App. 1st Cir.7/30/97), 698 So.2d 691, 694, writ denied, 97-2198 (La.11/21/97), 703 So.2d 1312.

Article 967 of the Louisiana Code of Civil Procedure describes the type of documentation a party may submit in support of or in opposition to a motion for summary judgment. Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181 (La.2/29/00), 755 So.2d 226, 231. In accordance with Article 967, sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith in order to be considered by the court. A document that is not an affidavit or sworn to in any way, or is not certified, is not of sufficient evi-dentiary quality on summary judgment to be given weight in determining whether or not there remain genuine issues of material fact. Sanders v. J. Ray McDermott, Inc., 03-0064 (La.App. 1st Cir.11/7/03), 867 So.2d 771, 775. If the other criteria of Article 967 are met, evidence submitted as attachments to a memorandum in support of or in opposition to the motion for summary judgment may properly be considered by the court. Aydell v. Sterns, 98-3135 (La.2/26/99), 731 So.2d 189, 189-90. Affidavits in support of or in opposition to motions for summary judgment must be filed into the record in order for the affidavits to be part of the record on appeal. See LSA-C.C.P. art. 966(B); Hopper v. Crown, 560 So.2d 890, 892 (La.App. 1st Cir.1990). An affidavit filed into the record as part of the support for or opposition to a motion for summary judgment is part of the record on appeal, which the court of appeal may consider. Boland v. West Feliciana Parish Police Jury, 03-1297 (La. App. 1st Cir.6/25/04), 878 So.2d 808, 814, writ denied, 04-2286 (La.11/24/04), 888 So.2d 231.

When the issue before the court on the motion for summary judgment is one on which the party bringing the motion will bear the burden of proof at trial, the burden of showing there is no genuine issue of material fact remains with the party bringing the motion. See LSA-C.C.P. art. 966(C)(2); Buck’s Run Enterprises, Inc. v. Mapp Const., Inc., 99-3054 (La.App. 1st Cir.2/16/01), 808 So.2d 428, 431. An insurer seeking to avoid coverage through summary judgment bears the burden of proving some exclusion applies to preclude coverage. See McMath Const. Co., Inc. v. Dupuy, 03-1413 (La.App. 1st Cir.11/17/04), 897 So.2d 677, 681, writ denied, 04-3085 (La.2/18/05), 896 So.2d 40.

An insurance policy is a contract between the parties and should be construed employing the general rules of interpretation of contracts set forth in the Louisiana Civil Code. Reynolds v. Select Properties, Ltd., 93-1480 (La.4/11/94), 634 So.2d 1180, 1183. Words and phrases used in a policy are to be construed using them plain, ordinary, and generally prevailing meaning, unless the words have acquired a technical meaning. See LSA-C.C. art.2047. Where the language in the policy is clear, unambiguous, and expressive of the intent of the parties, the agreement must be enforced as written. See LSA-C.C. art.2046.

The purpose of liability insurance is to afford the insured protection for damage claims. Policies therefore should be construed to effect, and not to deny, coverage. Thus, a provision which seeks to narrow the insurer’s obligation is strictly construed against the insurer, and if the language of the exclusion is subject to two or more reasonable interpretations, the interpretation which favors coverage must be applied. Reynolds, 634 So.2d at 1183. However, subject to the above rules of interpretation, insurance companies have the right to limit coverage in any manner they desire, so long as the limitations do not conflict with statutory provisions or public policy. Id. The rule of strict construction does not authorize a perversion of language or the exercise of inventive powers for the purpose of creating an ambiguity where none exists. Nor does pit authorize courts to alter the terms of policies under the guise of contractual interpretation when the policy provisions are couched in unambiguous language. Doiron v. Louisiana Farm Bureau Mut. Ins. Co., 98-2818 (La.App. 1st Cir.2/18/00), 753 So.2d 357, 363.

DISCUSSION

Before discussing the merits of this appeal, we must consider an issue raised in First Financial’s brief to this court, which concerns the lack of any evidence in the record in opposition to its motion for summary judgment. Lewis has referred to various affidavits in his appellate brief; however, neither his opposition memorandum nor any affidavits or other documentation that may have been attached to it are in the record that was sent to this court. A telephone call from our clerk of court to the clerk of the district court confirmed that those documents were never filed into the record at the district court. This court cannot receive or consider any evidence outside of the record on appeal. Louisiana Code of Civil Procedure article 2132, which permits the correction of evidence which was actually introduced at trial, does not permit introduction of new evidence after the transcript of the record is filed in the appellate court. Moreover, the court of appeal has no jurisdiction to receive new evidence. Nickens v. Patriot Home Systems, 97-0291 (La.App. 1st Cir.2/20/98), 708 So.2d 1184, 1186. Therefore, we must analyze the substantive issues in this case without the benefit of any evidence that may have been submitted to the district court by Lewis with his opposition memorandum, but was not filed into the record. Additionally, as admitted by First Financial in its brief to this court, the police report submitted in support of its motion was not authenticated or sworn to in any way. Therefore, we also cannot consider that report in evaluating the summary judgment. Accordingly, the only evidence other than the pleadings for this court to review is First Financial’s CGL policy, on which the named insured is Rajah & Imn, Inc., d/b/a Ragusa’s Meat Market.

Lewis argues that the court erred in concluding that the auto exclusion clause of the policy excludes coverage under the facts of this case. An endorsement to the auto 17exclusion states, in pertinent part:

This insurance does not apply to:
* * *
(2) “Bodily injury” or “property damage” arising out of any “auto”
* *
This exclusion applies to “bodily injury” or “property damage” arising out of any aircraft, “auto” or watercraft, whether or not owned, maintained, used, rented, leased, hired, loaned, borrowed or entrusted to others or provided to another by any insuredf.]
This exclusion applies even if the claims allege negligence or other wrongdoing in the supervision, hiring, employment, training, or monitoring of others by an insured.
This exclusion does not apply to:
* * *
(c) Parking an “auto” on, or on the ways next to, premises you own or rent, provided the “auto” is not owned by or rented or loaned to you or the insured and further provided that you are not in the “auto”, trucking, and cartage or livery business or in the business of parking or storing “autos”[.]

Lewis claims his injuries did not arise solely out of the use of the auto. Rather, he claims that Ragusa’s liability stems from its failure to install and properly maintain sufficient lighting for drivers to see patrons in the store’s parking lot. He contends Louisiana courts have held that policy exclusions for automobile-related injuries are inapplicable when the particular accident resulted from more than one cause. Therefore, he argues that coverage would exist for this cause.

In support of his position, Lewis cites LeJeune v. Allstate Ins. Co., 365 So.2d 471 (La.1978), in which a deputy sheriff negligently failed to secure an intersection during a funeral procession, resulting in an automobile accident that killed a passenger in the hearse. Because the damages arose out of the breach of the deputy’s law enforcement duties, the auto exclusion clause did not apply and coverage existed under the CGL policy. Similarly, in Manuel v. Luckett, 577 So.2d 203 (La.App. 1st Cir.), writ denied, 580 So.2d 378 (La.1991), an auto exclusion was held not to preclude coverage under a general liability policy when the injuries were partly attributable to negligence independent of and in addition to the auto use when a sheriffs deputy who made |san emergency radio call gave out an incorrect code for the call. We note that in both of these eases, the automobiles involved in the accidents were not owned by the defendants, nor had the defendants allowed the use of those automobiles.

First Financial contends that the rationale of Picou v. Ferrara, 412 So.2d 1297 (La.1982) is applicable to this case. In Picou, the district court determined there was coverage for claims based on the defendant employer’s negligence in hiring an incompetent driver; the plaintiff had been injured when his motorcycle was struck by an automobile owned and operated by the defendant employee, who was on an errand for his employer at the time of the accident. The court of appeal affirmed the judgment. In reversing that decision, the supreme court reasoned that because the use of the automobile, a risk excluded from the policy, was a common and essential element in the plaintiffs liability theories of negligent supervision and negligent en-trustment, the policy exclusion must be upheld. Picou, 412 So.2d at 1300.

In the case before us, the alleged breach of duty by Ragusa’s is failing to provide sufficient lighting so vehicle drivers can see patrons in its parking lot and avoid hitting them. Claiming that the use of the automobile is an essential element in this theory of liability, First Financial asserts the court correctly upheld the auto exclusion. First Financial also cites this court’s recent case of Simmons v. Weiymann, 05-1128 (La.App. 1st Cir.8/23/06), 943 So.2d 423, in which a negligent supervision claim was asserted against a homeowner who allowed neighbors’ children to use his all-terrain vehicle (ATV), and children riding on the ATV were injured when it was involved in an accident. Distinguishing the Frazier case, in which the injured child was not using the vehicle, this court held that under the facts in Simmons, when the liability clearly arose out of the use of the defendant’s ATV by the children, the auto exclusion in the defendant’s homeowner’s policy applied. See Simmons, 943 So.2d at 429, and cases cited therein.

We note, however, that Lewis, the injured plaintiff in this case, was not using the vehicle when the accident occurred. Moreover, the automobile causing his injuries |flwas neither owned by the defendants, nor was it being used with the defendants’ permission. These factors suggest that the auto exclusion should not be applied to preclude coverage. Additionally, in this case, the involvement of an automobile is not a common and essential element of Lewis’s claim that Ragu-sa’s failure to provide sufficient lighting in the parking lot contributed to the occurrence of the accident. Insufficient lighting might cause patrons to be injured in other ways not involving an automobile, such as tripping over uneven surfaces in the parking lot. Therefore, this case can be distinguished from Picou on that basis. The type of negligence alleged against Ragu-sa’s in this case is independent of and in addition to any auto use or involvement, as was the situation in Manuel, 577 So.2d at 208.

We are mindful that the auto liability exclusion in First Financial’s policy uses slightly different wording from the exclusions discussed in much of the above-cited jurisprudence. The auto exclusion endorsement in this case simply states that the insurance does not apply to bodily injury “arising out of any ‘auto’ it is not premised on “use” of an automobile. However, we believe the analysis of the above-cited jurisprudence is still applicable, because the negligence alleged against Ragu-sa’s — insufficient lighting in the parking lot — does not involve an automobile in any way. Because that negligence could cause other types of accidents and injuries, the involvement of an auto is not essential to the asserted claim. We conclude, therefore, that because the type of negligence asserted by Lewis against Ragusa’s was independent of and in addition to any automobile involvement, the auto exclusion in First Financial’s policy does not preclude coverage in this case. Accordingly, the district court erred in granting summary judgment in favor of First Financial and dismissing Lewis’s claims against it. Having reached this determination, we pretermit discussion of the parties’ other arguments.

^CONCLUSION

For the above reasons, the judgment of March 25, 2008, granting summary judgment in favor of First Financial and dismissing all of Lewis’s claims against it is reversed. This case is remanded to the district court for further proceedings. All costs of this appeal are assessed against First Financial.

REVERSED AND REMANDED.

      . It is unclear whether Ms. Chong or an acquaintance was actually driving the vehicle when the incident occurred. The gunman was apparently not identified, and Ms. Chong was not named as a defendant in this lawsuit.

      . These injuries are not detailed in the record, but are described in Lewis's brief to this court.

      . We are aware of Lewis’s opposition and its content only on the basis of the briefs filed in this court; neither the opposition memorandum nor any attached affidavits are in the record.

      . The police report was not certified or sworn to in any way.

      . Jabbar also filed a motion for summary judgment, which was heard the same day and was denied.

      . Lewis did not assign as error the court's conclusion that the assault and battery exclusion also applies and precludes coverage for the injuries caused by the gunshot.

      . In Frazier v. State Farm Mut. Auto. Ins. Co., 347 So.2d 1275 (La.App. 1st Cir.), writ denied, 351 So.2d 165 (La.1977), despite an auto ex-elusion, this court allowed a cause of action for negligent supervision against the defendant’s homeowner’s insurance company when a child was run over by a car driven by the defendant's daughter while the defendant babysat the child.

      . Of course, we express no opinion on whether Lewis will be able to establish that insufficient lighting was a causative factor in the accident and his resulting injuries.

      . This opinion does not affect the district court's application of the assault and battery exclusion to preclude coverage of the injuries to Lewis caused by the gunshot, as that conclusion was not assigned as error.