text:
    STATE ex rel. Michael GAVIN v. STATE of Louisiana.
    No. 2011-KH-2549.
    Supreme Court of Louisiana.
    Dec. 16, 2011.
   In re Gavin, Michael; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. N, No. 06-11-0314; to the Court of Appeal, First Circuit, No. 2011 KW 1733.

Denied.


source: Caselaw Access Project

license: Public Domain

text:
    Raleigh LANDRY, et al. v. AVONDALE INDUSTRIES, INC., et al.
    No. 2011-CC-2589.
    Supreme Court of Louisiana.
    Dec. 16, 2011.
   In re Steel Grip Inc.; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. H, No. 02-5103; to the Court of Appeal, Fourth Circuit, No. 2011-C-1183.

Denied.

VICTORY and WEIMER, JJ., would grant.


text:
    Raleigh LANDRY, et al. v. AVONDALE INDUSTRIES, INC., et al.
    No. 2011-CC-2618.
    Supreme Court of Louisiana.
    Dec. 16, 2011.
   In re John Crane Inc.; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. H, No. 02-5103; to the Court of Appeal, Fourth Circuit, No. 2011-C-1189.

Denied.

VICTORY and WEIMER, JJ., would grant.


text:
    STATE ex rel. Willie RHODES, IV v. STATE of Louisiana.
    No. 2011-KH-2666.
    Supreme Court of Louisiana.
    Dec. 16, 2011.
   In re Rhodes IV, Willie; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. I, No. 482-302; to the Court of Appeal, Fourth Circuit, No. 2011-K-0756.

Denied. Moot.


text:
    STATE of Louisiana v. Tremon EVERETT, et al.
    No. 2011-KK-2749.
    Supreme Court of Louisiana.
    Dec. 16, 2011.
   In re Everett, Tremon et al.; Hadley Jr., Eric; Hadley Sr., Eric; — Defendant(s); Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. H, No. 506-271; to the Court of Appeal, Fourth Circuit, No. 2011-K-1617.

Denied.


author: PER CURIAM.

text:
    Frank DUNNING, Jr. v. STATE of Louisiana through the DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT.
    No. 2010 CW 2087.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 20, 2011.
    Daniel A. Claitor, Neil D. Sweeney, Baton Rouge, LA, for Plaintiff-Respondent Frank Dunning, Jr.
    Hon. James D. “Buddy” Caldwell, Attorney General, Baton Rouge, LA, Henry S. Provosty, Lena D. Giangrosso, Special Asst. Attorneys General, New Orleans, LA, for Defendant-Relator State of Louisiana through the Department of Transportation and Development.
    Before KUHN, PETTIGREW, and HIGGINBOTHAM, JJ.
   PER CURIAM.

| ¡¿Frank Dunning Jr., plaintiff herein, filed a petition for damages on October 17, 2005, seeking relief under the Jones Act and general maritime law for injuries he allegedly sustained as a deckhand and/or crew member for the State of Louisiana through the Department of Transportation and Development (State) aboard the M/V St. Francisville on May 6, 2005. Specifically, Dunning alleges he was negligently injured in the course and scope of his employment when a cable snapped causing the closing gate of the ferry to strike him in the head and upper body, requiring medical treatment. In response to the lawsuit filed against it, the State filed a peremptory exception raising the objection of no cause of action asserting that the Louisiana Workers’ Compensation Act (LWCA), La. R.S. 23:1021 et seq., provides plaintiffs exclusive remedy. After a hearing, the trial court denied the State’s objection of no cause of action, finding that plaintiff, a State employee, is also a seaman and entitled under La. R.S. 23:1035.2 to seek recovery under the Jones Act and general maritime law. The State now seeks supervisory review of that ruling.

The State contends Article XII, Section 10 of the Louisiana Constitution, limits suits against the State. Specifically, the State argues that reading Article XII, Section 10 in para materia, it is clear that while Section (A) is a waiver of sovereign immunity for claims for personal injury, that waiver is a limited waiver, subject to the limitations set forth in Section (C). The State submits the waiver is not boundless, and the legislature, specifically authorized to limit suits against the State, has done so via the LWCA.

Recently, however, the Louisiana Supreme Court in Fulmer v. State, Dept. of Wildlife and Fisheries, 2010-2779 (La.7/1/11), 68 So.3d 499 found that nothing in the plain language of the LWCA indicates the legislature’s intent to limit the State’s liability to suits under the Jones Act brought by a State employee. The court found that La. R.S. 28:1035.2 specifically excludes from compensation coverage “any employee” who is covered by the Jones Act. Fulmer, 2010-2779 at 8, 68 So.3d 499. Louisiana Revised Statute 23:1035.2 states, “No compensation shall be payable in respect to the ^disability or death of any employee covered by the Federal Employer’s Liability Act, the Longshoremen’s and Harbor Worker’s Compensation Act, or any of its extensions, or the Jones Act.”

When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature. La. C.C. art. 9. Louisiana Revised Statute 23:1035.2 is a clear statement indicating that if “any employee,” not only a private employee, is covered by the Jones Act, the LWCA does not provide compensation.

As such, the claims against the State under the Jones Act brought by plaintiff, a State-employed seaman, are not prohibited under the LWCA or the Louisiana Constitution. The trial court did not err in finding that plaintiff stated a valid cause of action against the State under the Jones Act.

WRIT DENIED.


author: JOAN BERNARD ARMSTRONG, Chief Judge.

text:
    Edna WILSON v. BANK OF AMERICA d/b/a Bank of America Mortgage and/or State Street Bank and Trust Company.
    No. 2011-CA-0392.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 20, 2011.
    Rehearing Denied Nov. 8, 2011.

      Patrick D. Breeden, P. Michael Breeden, The Breeden Law Firm, New Orleans, LA, for PlaintiffrAppellant, Edna Wilson.
    Angelina Christina, McGlinchey Stafford PLLC, New Orleans, LA, Raymond A. Chenault, McGlinchey Stafford PLLC, Houston, TX, for Defendants/Appellees, Bank of America, N.A.; State Street Bank and Trust Co., and Beal Bank S.S.B.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge PATRICIA RIVET MURRAY, Judge MICHAEL E. KIRBY).
   JOAN BERNARD ARMSTRONG, Chief Judge.

I,The plaintiff-appellant, Edna Wilson, appeals a judgment of November 10, 2010, that granted the Motion for Summary Judgment filed by the defendants-appel-lees, Countrywide Home Loans, Inc. (hereinafter “Countrywide”), Bank of America, N.A. (hereinafter “BoA”), State Street Bank and Trust Company (hereinafter “State Street”) and Beal Bank S.S.B., (hereinafter “Beal Bank”), which defendants are hereinafter referred to collectively as the “Servicing Defendants”. The summary judgment condemned the plaintiff to pay “the amount of the unpaid principal and interest plus any late fees, accrued interest, and all amounts advanced, including amounts advanced for lender-placed insurance and taxes, and reasonable attorney’s fees incurred in enforcing the Note and Mortgage.” We affirm.

We review summary judgments de novo and that includes both fact and law. We must emphasize that we cannot agree with the contention of the Servicing Defendants that we apply the manifest error/clearly wrong standard of review to the trial court’s summary judgment findings of fact. Stobart v. State, Through DOTD, 617 So.2d 880 (La.1993), the case relied upon by the Servicing Defendants in support of this contention was not a summary judgment case. The \9de novo standard of review regarding facts is of particular significance as this is a fact intensive case.

Moreover, we note that 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, 00-2507, p. 2 (La.12/8/00), 775 So.2d 1049, 1050.

On May 22, 2001, the plaintiff filed a petition for damages against BoA d/b/a Bank of America Mortgage Company and State Street, claiming damages arising out of the defendants’ failure to properly respond to her “qualified written request” as required by 12 U.S.C. § 2605(e)(1) of the Real Estate Settlement Procedure Act (RESPA). Countrywide and Beal Bank are parties to these proceedings as successors in interest to BoA and State Street.

The plaintiffs petition also alleges that BoA “violated it[s] fiduciary obligation to plaintiff as plaintiffs insurance agent in obtaining a policy that costs so much,” a reference to the Homeowners policy that BoA forced placed at a premium cost of $1404.00 in order to protect the mortgage collateral when the plaintiffs prior policy lapsed. The plaintiffs prior policy allegedly bore the much lower premium rate of $695.00. However, the plaintiff makes no specific argument concerning the violation of fiduciary duty on appeal.

While the plaintiffs appeal is concentrated on RE SPA, she does make the following general argument in her brief:

In its judgment, the trial court awarded to B[o]A “all unpaid principal and interest, plus late fees, accrued interest and all amounts advanced including amounts advanced for lender-placed insurance and taxes and | ^reasonable attorney’s fees incurred in enforcing the note and mortgage.”
No evidence was referred to and the trial court did not give any consideration to Wilson’s no cause of action defenses, prescription defense and the fact that there were material facts in dispute as to RESPA, the debt, the life insurance and the hazard insurance that B[o]A had purchased for Wilson without her consent.
The trial court completely ignored that the law of RESPA should be liberally construed in favor of the borrower.

The petition also alleges that the failure of BoA to properly communicate amounts due on the account “amounts to violations of the Louisiana Consumer Protection Acts LSA-RS 51:1401 et se[q].” The plaintiff does not make any reference to the Louisiana Consumer Protection Act in this appeal.

The petition concludes with allegations that BoA violated the U.C.C. by acting in bad faith as making a claim for a return of premiums charged to her for life insurance as she never purchased any such insurance. In her appeal, the plaintiff makes only a passing reference to her U.C.C. claim in the last sentence of her reply brief.

Ms. Wilson admits that on April 5, 1984, she borrowed $52,800.00 from United Federal Savings and Loan Association and executed a note and mortgage on property located at 3624-26 Frenchman Street, New Orleans, Louisiana 70112 in its favor. The Servicing Defendants do not dispute that this loan falls under the provisions of RESPA.

The sequence of events leading up to the commencement of this litigation is basically as set forth in the trial court’s written reasons for judgment. After |4making the loan, Ms. Wilson made regular payments until November 1999. She then missed payments or was late with payments. BoA was the loan servicer at the time. In May of 2000, Ms. Wilson and BoA entered into a Forebearance Agreement that would have allowed her to bring the loan current. However, she failed to make any payments under the agreement.

Before BoA filed any foreclosure pleadings, Ms. Wilson filed this action alleging that the Servicing Defendants violated RESPA by failing to respond to her Qualified Written Request as required by statute. She further alleged that as a result of this failure, she was entitled to actual and statutory damages.

The Servicing Defendants reconvened and sued for the sums they allege to be due under the note and mortgage.

The trial court granted the Servicing Defendants’ Motion for Summary Judgment based on a finding that they complied fully with RESPA and that they were due all amounts they claimed under the note and mortgage, although the judgment of the trial court does not specify what those amounts might be.

In addition to plaintiffs RESPA arguments, the plaintiff contends that the Servicing Defendants are not entitled to any recovery because they failed to send notices by certified mail as required by the note and mortgage.

Paragraph 14 of the mortgage states that the notice has to be sent by certified, return receipt mail. However, we read the “certified mail” requirement as a safe harbor requirement, that is, if the notice is sent by certified mail it is, ipso facto, proof that the lender has sent notice to the borrower. Thus, the purpose of the certification requirement is a means to eliminate disputes as to notice. It is not |Ban end in itself. Where there is no dispute that notice was sent and received, the question of whether it was sent by certified mail becomes irrelevant. In this case the plaintiff does not deny having received any of the correspondences directed to her by BoA. Therefore, the lack of certified notice provides no defense to the plaintiff.

The provisions of RESPA relevant to this case are found in 12 U.S.C.A. § 2605(e) et seq.:

Notice of receipt of inquiry

(A) In general
If any servicer of a federally related mortgage loan receives a qualified written request from the borrower (or an agent of the borrower) for information relating to the servicing of such loan, the servicer shall provide a written response acknowledging receipt of the correspondence within 20 days ... unless the action requested is taken within such a period.
(B) Qualified written request
For purposes of this subsection, a qualified written request shall be a written correspondence, other than notice on a payment coupon or other payment medium supplied by the ser-vicer, that—
(i) includes, or otherwise enables the servicer to identify, the name and account of the borrower; and
(ii) includes a statement of the reasons for the belief of the borrower, to the extent applicable, that the account is in error or provides sufficient detail to the servicer regarding other information sought by the borrower.
(1) Action with respect to inquiry Not later than 60 days ... after the receipt from any borrower of any qualified written request under paragraph (1) and, if applicable, before taking any action | fiwith respect to the inquiry of the borrower, the servicer shall—
(A) make appropriate corrections in the account of the borrower, including the crediting of any late charges or penalties, and transmit to the borrower a written notification of such correction (which shall include the name and telephone number of a representative of the servicer who can provide assistance to the borrower);
(B) After conducting an investigation, provide the borrower with a written explanation or clarification that includes—
(i) to the extent applicable, a statement of the reasons for which the servicer believes the account of the borrower is correct as determined by the servicer; and
(ii) the name and telephone number of an individual employed by, or the office or department of, the servicer who can provide assistance to the borrower; or
(C) after conducting an investigation, provide the borrower with a written explanation or clarification that includes—
(i) information requested by the borrower or an explanation of why the information requested is unavailable or cannot be obtained by the servicer; and
(ii) the name and telephone number of an individual employed by, or the office or department of, the servicer who can provide assistance to the borrower.
⅜ ⅜ ⅝ ⅝ ⅝ ⅜
(f) Damages and costs
(4) Nonliability A transferor or transferee servicer shall not be liable under this subsection for any failure to comply with any requirement under this section if, within 60 days after discovering an error (whether pursuant to a final written examination report or the servicer’s own procedures) and before the commencement of an action under this subsection and the receipt of written notice of the error and makes whatever adjustments are necessary in the appropriate account to ensure that the person will not be required to pay an amount in excess of any amount that the person otherwise would have paid.
|7The record contains a copy of a letter dated February 8, 2000, addressed to the plaintiff as a “Bank of America Mortgage Customer” from Sharon Brading of the Insurance Department:
Our records indicate that the hazard insurance certificate covering your property will RENEW on 4/13/2000. This certificate was originally purchased because we had not received acceptable evidence of insurance from you.
If you have obtained other hazard insurance coverage, forward a copy of your policy or reinstatement notice to the address listed below as soon as possible. If acceptable evidence is not received in this office by 4/13/2000, we will renew the existing force placed certificate for another year. The charge for this coverage will be $1,⅛0⅛.00.
Please note that this is not a homeowners policy. It provides no coverage for theft or damage to personal property, injury to persons or property for which you may be liable or additional living expense. As with most fire policies, coverage for flood and earthquakes is not included.
Should you wish to purchase insurance coverage through your agent, please instruct your agent or company to send the mortgagee’s copy of your policy (with a Mortgagee Clause including your loan number) to our address as shown below.
This matter requires your immediate attention. If you have any questions please contact us at 1.800.444.4302.

The record contains a copy of a “Forbearance Agreement” in which the debtor acknowledges that the mortgage is in default. Payments in the amount of $1,872.44 each are called for on 05/20/00 and 06/20/00 and it is specified that the first such payment “will be applied to the 03-01-00 payment. Subsequent payments are to be received on the dates specified by the contractual due date, until the ar-rearage is cured.” While the copy of this forbearance agreement is undated |8and unsigned, the plaintiff does not dispute the defendants’ version of the facts in this regard.

This is followed in the record by a letter from BoA addressed to the plaintiff dated June 27, 2000 as follows:

You have failed to keep your payment plan made with our office on 05.12.00. We did not receive the payment as promised for 06.20.00. Your payment plan is now null and void. As of today the total amount required to make your loan current is $1,904.12.
As a result, your loan is in serious default and may be subject to additional fees and costs. Please contact our office immediately for the amount required to reinstate your loan.

It is undisputed that in response to this letter, less than ten days later, the plaintiff sent to BoA the sum of $1,904.12, the sum referred to in the BoA letter as “the total amount required to make your loan current....”

Numbered paragraph “23” of the affidavit of BoA’s Assistant Vice President and custodian of records, Jacqueline M. Tobol-sld states that: “Wilson attempted to make a partial payment on July 7, 2000, but the arrearage had increased and Bank of America was under no obligation to accept a partial payment.” Since the BoA records indicate that the plaintiff attempted to make a partial payment on July 7, 2000, it is probable that the plaintiffs payment was sent in by mail prior to July 7, 2000, i.e., within less than ten days after the plaintiff would have received the letter from BoA.

laAs this payment was received by BoA no later than July 7, 2000, it was received prior to the time a late charge would have been due. While BoA has not identified any “additional fees and costs” that would cause the $1,904.12 sent in by the plaintiff to be a partial payment, the plaintiff has failed to prove that the payment was not short. Therefore, we find that the plaintiff has failed to raise a genuine issue of material fact in this regard.

The June 27, 2000 BoA letter is followed in turn by one dated July 11, 2000, from BoA addressed to the plaintiff, returning the plaintiffs $1,904.12 payment and stating in pertinent part that:

Please find enclosed your check number 3454829469-470 in the amount of $1,904.12. We are returning your mortgage payment because it is not sufficient to pay the total amount due. The total amount due on your loan is $2,808.66.

On September 12, 2000, the plaintiffs attorney sent a “Notice of Inquiry” letter (hereinafter referred to sometimes as the “Letter”) to BoA that the plaintiff contends constituted a Qualified Written Request (hereinafter “QWR”) as defined in 12 U.S.C.A. § 2605(e)(1)(B):

Gentlemen:

The writer represents the above referred to individual. Please find enclosed Hazards [sic] Insurance Binder on her property that you carry the mortgage on. Please sen[d] to me your escrow accounting once you have applied the insurance policy. If you had made my client aware of this fact of not having insurance, this would have been taken much earlier.
From the check and money orders that I have reviewed, my client has paid up to June 2000 when you consider the two money orders returned in July 2000.
| inTherefore, in reviewing these records, I see that we disagree as to the amount, so will you kindly take this as a “Notice of Inquiry” under 12 USCA 2605(e)(1). I hereby request that you do that which is called for by this law.
Thanks for your kind help and assistance to settle this matter before litigation is pursued.

BoA argues in its brief that other than reference to “hazard insurance” the letter of September 12, 2000 contains no clear request for information concerning the arrearage on the account. Although numbered paragraph “28” of the BoA’s Assistant Vice President and custodian of records, Jacqueline M. Tobolski’s, affidavit states that, “On September 12, 2000, Wilson’s attorney, Mr. Breeden, sent a letter to Bank of America requesting information about lender-placed insurance and questioning the amount owed to bring the Mortgage current,” we agree with the Servicing Defendants that the letter is not clear in that regard. Therefore, we find that the Tobolski affidavit fails to raise a genuine issue of material fact regarding the nature of the inquiry posed by the QWR letter.

As we find that the plaintiffs Letter of September 12, 2000 failed to adequately express a request for information concerning the amount required to bring the account current, we must conclude that BoA was reasonable in not reading it as expressing such a request. Accordingly, the Servicing Defendants cannot be held accountable under RESPA for failing to respond with such information.

Chronologically, the next event is a letter in the record from Bank of America Mortgage dated September 13, 2000, directed to the plaintiff. This letter informs her that:

Because we have not been receiving payments for your optional insurance premium, we have removed it from Inyour monthly mortgage payment. Your new payment coupon will reflect this change and give you a new payment amount that does not include your optional insurance premium.
If you have any questions about the information above, please call Minnesota Life at 1.800.372.2775.

We agree with the trial court that this September 13, 2000 letter from BoA shows that BoA responded immediately, in fact, the very next day after the day the plaintiffs attorney mailed the September 12, 2000 Letter. The plaintiff argues this letter was not intended as a response to the QWR as the reference to “optional insurance” in BoA’s letter is a reference to life insurance and accidental death insurance which was truly optional and not to hazard insurance which was not optional, i.e., hazard insurance was an absolute requirement of the loan. In support of the contention that the BoA letter of September 13, 2000 was never intended to be a response to the QWR, the plaintiff also argues that it is highly unlikely that BoA would have responded to the QWR the same day it was received, September 13, 2000 being the earliest day BoA could have received the QWR mailed the day before. However, viewing the record as a whole, we find no error in the finding of the trial court that the BoA letter of September 13, 2000 was in prompt response to the QWR mailed the day before.

This is followed by a document addressed to the plaintiff from BoA Mortgage labeled “Payoff Statement 09-21-00,” containing the following information:

CALCULATION OF AMOUNT REQUIRED TO SATISFY LOAN AND RELATED FEES:
Payoff figures void after 09-28-00 This loan is due for the 05-01-00 Payment
Current Total Unpaid Principal
Balance $46,303.97
h^Acerued Interest to 09-28-00 $ 3,166.00 “Escrow Overdraft $ 1,628.46
Unpaid Late Charges $ 94.26
Recording Fee $ 12.00
Amount Due to Pay off Loan by
09-28-00 and subsequent
Release 1,211.42
Other unpaid Fee(s) 6.75
*Total Amount Payable* $51,211.42 This calculation is void after 09-28-00. You may want to obtain an updated payoff statement after this date. Interest $17.59 per Day.
If the current month’s payment has not been paid and the payoff is received after the late charge assessment date, a late charge of $31.28 will be assessed and must be included with the payoff. These figures are subject to final verification upon receipt of funds by Bank of America. Bank of America reserves the right to adjust these figures and refuse any funds which are insufficient to pay the loan in full for any reason, including but not limited to error in calculation of payoff amount, previously dishonored check or money order, or additional disbursements made by Bank of America between the date of this payoff statement and the receipt of the funds.

There follow instructions on how to remit the payment and an accounting showing that nothing is due for New Orleans Parish taxes, but that as of 04-13-01 the sum of $1,404.00 will be due to Balboa Life and Casualty for insurance. This letter is further proof that BoA was not ignoring the plaintiff and made every effort to supply her with account information on what could almost be described as a fast track basis. While the plaintiff argues that this statement does not tell her how to bring the account current and makes no reference to hazard insurance, in the context of all the communications between the parties, there is nothing in this | ^account statement from BoA that raises a genuine issue of material fact in favor of the plaintiffs case.

Therefore, we agree with that portion of the reasons for judgment of the trial court stating:

On September 13, 2000 Bank of America immediately responded to Ms. Wilson’s letter of September 12 with a letter to Ms. Wilson showing removal of payments for lender placed insurance premiums from her mortgage payments as requested by her.... Later, on September 21, 2000 Bank of America sent a written payoff statement to Ms. Wilson. These actions taken by Bank of America, which specifically respond to the September 12, 2000 letter, clearly acknowledge receipt of the QWR.

Thus, BoA effectively acknowledged receipt of the plaintiffs QWR not once, but twice, within the twenty-day period mandated by RESPA.

There is a copy of a letter in the record addressed to the plaintiff from Attorney Graham Arceneaux dated September 28, 2000, placing her in default and informing her that “we are preparing foreclosure proceedings and will file without further notice.” It further informs her that:

Should you desire to reinstate the loan, it will be necessary to obtain the approval of Bank of America, NA and to pay all delinquencies, installments, advances, late charges and attorney’s fees.

This is followed on 10-16-00 by another payoff statement virtually identical to the one dated 09-21-00 above. The only material difference between this payoff statement and the previous one is that now the payoff amount has grown to $52,677.76. This shows that BoA made every effort to keep the plaintiff informed of developments on her account.

This payoff statement may well be the same statement referred to in Mr. Arcen-eaux’s letter of October 17, 2000, but they are not attached to each other in |14the record. This letter from Mr. Arceneaux addressed to the plaintiffs counsel, Patrick Breeden, advises him that the plaintiffs loan is in default, and that “no payments have been made for the months of May, 2000 through October, 2000,” and that foreclosure proceedings would be filed without further notice. The letter calls for a payoff amount effective October 31, 2000 of $51,415.76, which is different from the $52,677.76 figure called for in the October 16, 2000 payoff statement that we assume from the record was enclosed in the letter. The letter then goes on to state that:

Please note that a credit has been deducted for costs advanced to my office but unused as this point. Because of interest, late charges and other charges that may vary from day to day, the amount due on the day you pay may be greater. Hence, if you pay the amount shown above, an adjustment may be necessary after we receive your check, in which event we will inform you before depositing the check for collection.
Unless the consumer, within 30 days after receipt of this notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid.
If the consumer notifies this office in writing within the 30 day period that the debt or a portion thereof, is disputed, we will obtain verification of the debt, and a copy of such verification will be mailed and or faxed if you prefer for your review.
Upon the consumer’s written request within the 30 day period, we will provide you with the name and address of the original creditor if different from the current creditor.
.... To reinstate the loan at this time would require payment to this office in the form of certified funds, $5,939.82.

|15Mr. Arceneaux’s letter informs the plaintiff that the sum of $5,939.82 is the proper amount needed to “reinstate” the loan. Thus, BoA, directly and through legal counsel, followed up its initial ac-knowledgement of the QWR within 60 days of the plaintiffs Letter as required by RESPA.

This letter supports the contention of the Servicing Defendants that by this time the plaintiffs loan had been turned over to Mr. Arceneaux for collection and/or foreclosure and that they could no longer be considered loan servicers for RESPA purposes. We acknowledge that numbered paragraph “34” of the Tobolski affidavit states that, “Bank of America ceased servicing Wilson’s Mortgage on October 20, 2001,” over a year after the date of Mr. Arceneaux’s letter, and that numbered paragraph “5” of the affidavit of Lori L. Ruiz, offered by the Servicing Defendants in support of their motion for summary judgment, states that, “Bank of America serviced the Mortgage from November 5, 1999 until October 20, 2001,” but we find that for RESPA purposes Mr. Arceneaux should be viewed as the loan servicer at all times relevant to this litigation.

Moreover, we agree with the written reasons for judgment of the trial court in finding that Beal Bank and Countrywide could not be held liable as servicers because: “Beal Bank and Countrywide serviced the loan after January 2002 — two years after the relevant notices of default.” Consistent with the trial court’s reasoning, we find that in the context of this case the provisions of RESPA concerning successor liability (referred to as “transferor or transferee servicer”) do not apply.

Finally, we find that the Servicing Defendants offered sufficient documentation to support the claim for the amount due from the plaintiff on the 11filoan and there is no genuine issue of material fact in this regard. The plaintiff does not dispute the fact that she has made no payment on the loan in over ten years.

As we have not found any genuine issues of material fact, we affirm the summary judgment of the trial court.

AFFIRMED

      . Based on documents in the record, it appears that United Federal failed and was placed into receivership by the Resolution Trust Corporation (RTC) and was succeeded by the Federal Deposit Insurance Corporation which in turn assigned the note and mortgage to State Street as Trustee under that certain Pooling and Servicing Agreement for RTC Mortgage Pass-Through Certificates, Series 1992-2. On January 28, 2002, State Street, as Trustee on behalf of the Trust Fund for the RTC Mortgage Pass-Through Certificate series 1992-2, transferred the Note and assigned the Mortgage to Beal Bank.

      . Ms. Tobolski’s affidavit does not explain how the arrearage increased in so short a period of time. The affidavit does not describe any "fee” or "cost” that would have added to the arrearage, "fees” and "cost” being the only two sources of possible additional arrearages referenced in the BoA letter of June 27, 2000. If there is some additional sum which the Servicing Defendants had pri- or knowledge would become due before the plaintiff could reasonably be expected to respond to the letter of June 27, 2000, it may raise a question of the Servicing Defendants’ good faith in failing to set forth such obviously relevant information in the letter requesting the payment of $1,904.12.

      . According to the Mortgage Note and numbered paragraph "27” of the affidavit of BoA’s Assistant Vice President and custodian of records, Jacqueline M. Tobolski, no additional late charge is due until the 16th of the month.


author: CLARENCE E. McMANUS, Judge.

text:
    Iban LOPEZ and Rachel Lopez, individually and as husband and wife v. Donald J. MANINT, Atmosphere Mover, Inc. d/b/a Atmosphere Moving and Storage, Canal Indemnity Company and Allstate Insurance Company.
    No. 11-CA-101.
    Court of Appeal of Louisiana, Fifth Circuit.
    Sept. 27, 2011.

      Patrick D. DeRouen, Laurie L. Dear-mond, DeRouen Law Firm, Attorneys at Law, New Orleans, LA, for Defendant/Ap-pellee Canal Indemnity Company.
    Nat G. Kiefer, Jr., Kiefer & Kiefer, Attorney at Law, Metairie, LA, for Defendant/Appellant Allstate Insurance Company.
    Stephen K. Conroy, Tom D. Snyder, Jr., Rebecca E. Fenton, Conroy Law Firm, Attorneys at Law, Metairie, LA, for Defendant/Appellant Atmosphere Movers, Inc. d/b/a Atmosphere Moving Company.
    Panel composed of Judges SUSAN M. CHEHARDY, CLARENCE E. McMANUS and MARC E. JOHNSON.
   CLARENCE E. McMANUS, Judge.

IsThis is an appeal by Atmosphere Moving and Storage, Inc., defendant-appellant, from a summary judgment in favor of Canal Indemnity Co., its insurer, dismissing Canal from this highway accident suit on grounds that the insurance policy at issue did not cover the specific truck involved in the incident. For the following reasons, we affirm the judgment.

The underlying suit arose out of a collision that occurred on an interstate highway. A truck owned by Atmosphere and operated by its employee Donald Manint struck the rear of a vehicle operated my Iban Lopez. Suit was filed by Lopez and his wife against Atmosphere, Manint, Canal Indemnity Co. as Atmosphere’s insurer, and Allstate Insurance Co., the Lopez’s uninsured/underinsured carrier.

The basic facts regarding the coverage issue before us are straightforward. Atmosphere is a moving company. Until late 2007, it operated 14 trucks, but because of a downturn in business, it decided to idle some of its fleet. Its insurance broker, American Insurance Brokers, Inc. (AIB), had procured a policy of liability insurance with Canal. That policy is a scheduled vehicle policy, i. e. only vehicles listed are covered. AIB informed Warren Stockstill, III, Atmosphere’s owner, that |4to remove the idled vehicles from coverage under the Canal policy he would have to sell them. Stockstill filled out and signed nine bills of sale relating to vehicles to be taken off the policy, sent them to AIB, which in turn forwarded them to Canal. In January, 2008, Canal duly removed the nine trucks from the vehicle schedule, reduced the policy premium, and sent the revised schedule listing the removed vehicles to Atmosphere with a refund on the premium.

On April 18, 2008, an Atmosphere truck was in an accident involving the plaintiffs here. When Canal was notified of the accident, it declined coverage on the grounds that Atmosphere had submitted a bill of sale establishing that that truck had been sold, and as per the request of Atmosphere and its broker, AIB, it had removed it from the schedule of covered vehicles. Canal also declined coverage under the MCS-90 endorsement of the policy, applicable to vehicles in interstate commerce, on grounds that the truck involved in the present accident was engaged only in intrastate activity.

Canal urged a motion for summary judgment which was granted, dismissing it from the suit with prejudice. This appeal by Atmosphere followed. Allstate Insurance Co., the uninsured motorist insurer of the plaintiffs, has joined in the appeal.

Appellate courts review summary judgments de novo, utilizing the same analysis as that used in the district court, ie. whether there are genuine issues of material facts in dispute, and if not whether the moving party is entitled to judgment as a matter of law. La.C.C.Pr. Art. 966; Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94), 639 So.2d 730. In the motor vehicle insurance context, where the insurer asserts that the policy was cancelled, it carries the burden of establishing facts which will substantiate this claim. Accardo v. Clarendon Nat’l Ins. Co., 99-398 (La.App. 5 Cir. 1/4/00), 751 So.2d 975.

|fiIn the present case, the details of the uncontested facts are as follows. Canal had in effect a scheduled vehicle policy of liability insurance covering fourteen trucks operated by Atmosphere, a furniture moving company. In late 2007 Atmosphere decided to idle nine of its trucks and contacted its broker, AIB, to discuss cancel-ling the insurance on the vehicles. AIB informed Warren Stockstill, III, the owner of Atmosphere, that he would have to sell the trucks to accomplish the cancellation. Stockstill duly prepared nine bills of sale providing the year, make and VIN number of each vehicle to be removed from the vehicle schedule and sent them to AIB, who in turn sent them to Canal. In late January of 2008, Canal removed the nine trucks for which bills of sale had been provided, sent the new endorsement showing the year, make and VIN number of the removed trucks, and refunded the unearned premiums for these vehicles. Atmosphere made no corrections or objections to these documents at that time.

On April 18, 2008, two and one-half months after the cancellations went into effect, the accident at issue here occurred. When Canal was notified of the accident, it denied coverage on grounds that the truck involved was one of the nine for which coverage had been cancelled. That truck was a 1998 International, VIN 1HTSCAAM1WH508644 (hereinafter 8644). There is no dispute that Stockstill had sent a bill of sale showing that this vehicle had been sold and requesting through AIB that coverage be cancelled by Canal. Neither is there any dispute that Atmosphere received the new endorsement showing the cancellation, as well as the premium refund.

Once suit was filed and Canal denied coverage, Stockstill asserted in an affidavit that there had been an error made as to which trucks were to be removed from the policy. His explanation was that the original policy schedule of the fourteen trucks listed them by number, followed by the year, make and VIN | ¿number. He said that his internal tracking of the trucks was also done by number, and that these tracking numbers coincided with the numbers on the schedule, except for trucks nos. 4 and 5. The policy schedule listed no. 4 as a 1998 International truck, VIN 8644, and it listed no. 5 as a 1999 GMC straight truck, VIN 5694. Under the internal tracking numbers, the International was carried as no. 5, and the GMC was carried as no. 4. Stockstill stated that when he was preparing the bills of sale he simply went down his internal list and filled the bills out for the trucks he no longer wanted to keep in service. His intention was to sell the GMC, no. 4 on his list, and he entered the information for truck no. 4 from the policy schedule onto the bill of sale. Unfortunately, the information for truck no. 4 on the policy schedule was that of the International, and not the GMC. Stockstill also stated that he would never have knowingly put an uninsured truck on the road.

Atmosphere argues that because the International was removed in error, the policy should be reformed to correct this error. Alternatively, it argues that Stockstill’s intent when preparing the bills of sale is a factual issue in dispute which precludes the granting of summary judgment. As to the second ■ argument, we deem it moot because we accept as true for purposes of this appeal that Stockstill made an error in listing the truck to be removed. The inquiry here is whether that error constitutes grounds to reform the insurance policy. We hold that it does not.

The law and jurisprudence applicable to reformation of insurance policies was set forth in Samuels v. State Farm Mutual Auto. Ins. Co., 2006-0034 (La.10/17/06), 939 So.2d 1235. There, it was explained that insurance policies are contracts and should be construed using the general rules of interpretation of contracts. As in other types of written agreements, insurance policies may be preformed if through mutual error or fraud the policy does not express the actual agreement of the parties.

In the present case, there is no mutual mistake, and fraud is not an issue. Canal was instructed by Atmosphere and its broker, AIB, to remove from the policy a list of vehicles which were represented as having been sold. One of the vehicles was identified as a 1998 International truck, VIN 8644. Canal did as it was instructed and deleted the truck from coverage. It then returned to Atmosphere an amended schedule of vehicles showing the deletion. It also refunded the unearned premium on that specific truck. At no time prior to the accident was Canal put on notice of any mistake. Accepting Stockstill’s assertion that he inverted the numbers on two of the trucks as true, there is still no mutual error as to the identity of which trucks were still insured and which trucks had been deleted. Canal insured exactly what it was instructed to insure, and any error was therefore unilateral. In this circumstance, summary judgment in favor of Canal was proper.

We also note that because Canal was asserting that the coverage on the truck had been cancelled, it had to prove this assertion. Accardo v. Clarendon Nat’l Ins. Co., supra. This it did by overwhelming evidence. It then fell to Atmosphere to show why coverage may still have existed. Here, there is an inference that of the two trucks only the International was in service at the time of the accident, and therefore that no additional risk would have been encountered by Canal if the International were deemed to have been the insured vehicle, rather than the GMC. However, even were this hypothetical considered sufficient grounds to reform the contract, there is nothing in the record to substantiate it. Moreover, when Stockstill asserted that he would never put an uninsured vehicle on the highway, Canal sought discovery of Atmosphere’s records for all of its 1 ¡¿rucks during the pertinent period. Atmosphere objected to this discovery on grounds that the records for the other trucks, and presumably including those for the GMC, were irrelevant to the case. Canal urged a motion to compel responses to its discovery requests, but the motion for summary judgment was rendered before that discovery motion was taken up. Consequently, no evidence appeared of record to establish whether the GMC had actually been taken out of service.

Thus, not only did Atmosphere not establish a mutual error, but it also failed to show that were the court to reform the contract to include the International, Canal would not be required to undertake additional risks to which it had not agreed, and for which it was not compensated.

The next issue concerns the applicability of the MCS-90 endorsement in the policy. An MCS-90 endorsement to a liability policy obligates an insurer to cover the insured’s negligence involving vehicles subject to the requirements of the Motor Carrier Act. That act obligates insurers of motor carriers to pay certain judgments against their insureds arising from transportation of goods in interstate commerce, even where the insurance contract would have excluded coverage. An MCS-90 endorsement in a policy recognizes that obligation. The endorsement here states:

In consideration of the premium stated in the policy to which this endorsement is attached, the insurer (the company) agrees to pay, within the limits of liability described herein, any judgment recovered against the insured for public liability resulting from the negligence in the operation, maintenance or use of motor vehicles subject to the financial responsibility requirements of Section 29 and 30 of the Motor Carrier Act of 1980 regardless of whether or not each motor vehicle is specifically described in the policy and whether or not such negligence occurs on any route or in any territory authorized to be served by the insured or elsewhere.

The question is thus whether the truck at issue here is one subject to the requirements of the above Sections 29 and 30 of the Act.

|9In Canal Insurance Co. v. Coleman, 625 F.3d 244 (5th Cir.2010), the court discussed at length the operation of the Motor Carrier Act and the requirements of Sections 29 and 30 on the Act’s applicability. Initially, that court noted that the applicability of a MCS-90 endorsement is a question of federal law. It then analyzed Sections 29 and 30 and concluded that the Motor Carrier Act applies when the carrier is transporting goods for a third party in interstate commerce. It further ruled that this analysis is to be applied in a trip-specific manner, ie. whether during the trip in which the accident occurs the carrier was transporting goods in interstate commerce. Although in that case the issue was whether the carrier was transporting goods, the trip-specific analysis is equally applicable here where the issue is whether the truck was engaged in interstate commerce. Because there is no factual dispute that the trip in which the accident occurred was not one involving interstate travel, we hold that the MCS-90 endorsement in the policy did not extend coverage for this accident.

A final issue concerns the admissibility of evidence at the hearing on the motion for summary judgment. Although Atmosphere had questioned, in its opposition to the motion for summary judgment, the admissibility of certain papers upon which Canal was relying, when those papers were introduced at the hearing no objection was made. Because no contemporaneous objection to the evidence was entered at the hearing, this issue was not properly preserved for appeal. Matthews v. Breaux, 04-958 (La.App. 5 Cir. 2/15/05), 896 So.2d 1146.

For the foregoing reasons, the summary judgment dismissing Canal Indemnity Company from the suit with prejudice is hereby affirmed.

AFFIRMED


author: PAUL A. BONIN, Judge.

text:
    SCHWEGMANN FAMILY TRUST NO. 2 v. WHITE III, LLC.
    No. 2011-C-0611.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 30, 2011.

      Wade P. Webster, Fowler Rodriguez Valdes-Fauli, New Orleans, LA, for Plaintiff/Appellant.
    Jean-Paul Layrisson, Seandurro & Lay-risson, L.L.C., New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge MICHAEL E. KIRBY, Judge PAUL A. BONIN).

      . La. Civil Code Arts. 775-783.

      . The parcels are more full described in Appendix A, which is attached for the purposes of recordation of this judgment. See La. C.C.P. Art. 1919 ("All final judgments which affect title to immovable property shall describe the immovable property affected with particularity.”) The appendix forms no part of the published opinion.

   PAUL A. BONIN, Judge.

_JjSchwegmann Family Trust No. 2 filed suit against White III, LLC in order to obtain a judicial declaration that a building restriction which prohibited the operation of a grocery store on the Trust’s property had terminated. White is the owner of the property benefitted by the restriction and has the exclusive right to enforce the restriction. Arguing that there are no genuine issues of material fact, the Trust filed a motion for summary judgment. The trial judge denied the motion, and the Trust sought supervisory relief. We directed that the entire record be filed in this court and that the parties brief and orally argue the matter.

The Trust argues that the building restriction in question is effective only “[s]o long as a supermarket is operated” on White’s property and that because White has not operated a supermarket for the last six years, the building restriction should be declared terminated. White argues that it has been operating a supermarket and, additionally, its right to prevent other lots from operating grocery stores can be taken away only by a unanimous vote of all lot owners.

12After de novo review, we find that the provision regarding the termination of the questioned building restriction, which is conditioned upon the happening of an uncertain event, is unambiguous and that there is no genuine issue of material fact that the uncertain event has happened. Accordingly, we grant the writ, reverse the denial of summary judgment, and render judgment declaring the particular building restriction in question terminated and unenforceable.

We explain our decision in greater detail in the following Parts.

I

In this Part, we explain the pertinent factual history of the case.

In 1994 Schwegmann Giant Super Markets, a partnership, created the Schweg-mann Plaza Shopping Center through a juridical act entitled “Act of Establishment of Predial Servitudes and Building Restrictions” on property it owned in New Orleans East. The partnership established building restrictions and servitudes on the different parcels in the shopping center according to a general plan for the benefit of all lots in the shopping center. For example, only a lot on an outer parcel may operate a gas station, no air conditioning units may be visible from the public roadways, no buildings may exceed twenty-five feet in height, and lot owners are required to ensure that the common areas remain clean and in good repair.

One of the building restrictions established a “Supermarket Parcel” and gave that lot an exclusive right to operate a grocery store in the shopping center. The general plan, however, conditioned the exclusivity of the right on the following | «¡provision: “So long as a supermarket is operated on the Supermarket Parcel, none of the other Parcels shall be improved or used, in whole or in part, for the conduct of a grocery store or supermarket ...” Initially, the partnership or its affiliate operated a supermarket on that parcel. Now the Supermarket Parcel is owned by White who is, in the phraseology of the Act, the Supermarket Owner.

Hurricane Katrina struck New Orleans in 2005 and devastated the shopping center. At the time, White was leasing the Supermarket Parcel to a supermarket chain, which was operating a grocery store on the lot. The chain, however, ceased operating a grocery store on the Supermarket Parcel after the storm’s devastation. Although the store remained vacant, the chain continued to pay rent to White until the bankruptcy court terminated its lease with White in January 2011. It is undisputed that no food or food products have been sold at the Supermarket Parcel since the storm in 2005.

The Trust’s lot, which is the former site of an electronics store, is also vacant because its tenant, too, went bankrupt. The Trust hopes to operate a grocery store on this parcel. The Trust received an offer from another grocery store chain to lease the Trust’s lot and operate a grocery store. But a title inspection on the Trust’s lot revealed the existence of the building restriction presently in dispute, and the potential lessee refused to lease the lot without assurance that the building restriction had been lifted.

In April of 2010, while White was still receiving rent from the supermarket chain, the Trust sent White a letter asking White to acknowledge that the building restriction had terminated. White rejected the request and replied that it believed [4the building restriction in question was still operative because White had been continually leasing the premises to a supermarket company, and, further, White believed that a grocery store would soon reopen there.

In October of 2010, the month before White’s lessee filed for bankruptcy, the Trust filed a petition for declaratory action to have the building restriction declared terminated and unenforceable. If a declaration that the specific building restriction is terminated and unenforceable, any of the parcels or lots in the shopping center, including the Trust’s and White’s, may operate a grocery store.

In February of 2011, the Trust filed a motion for summary judgment, which the trial court denied. The denial of a summary judgment is an interlocutory judgment. La. C.C.P. Art. 968. The Trust timely sought supervisory relief in this court. See La. C.C.P. Art. 2201; Rule 4-8, Uniform Rules-Courts of Appeal.

II

In this Part we address first the general legal precepts which govern our consideration of this dispute and then apply those precepts to the specifies of the general plan’s particular building restriction in question and the plan’s provision for its termination.

A

“Building restrictions are charges imposed by the owner of an immovable in pursuance of a general plan governing building standards, specified uses, and improvements.” La. Civil Code Art. 775. “Building restrictions may be established only by juridical act executed by the owner of an immovable or by all the owners of the affected immovable.” La. Civil Code Art. 776. Here, the Schwegmann partnership established the general plan through an Act, which it recorded in the records of Orleans Parish. There is also no dispute that the general |fiplan satisfies the legal requirement that it “must be feasible and capable of being preserved.” La. Civil Code Art. 775. Thus, the building restrictions are valid and enforceable.

Building restrictions, once established are terminated as provided by Title V of Book II of the Civil Code. See La. Civil Code Art. 776. Title V provides inter alia that building restrictions “may terminate or be terminated, as provided in the act that establishes them.” La. Civil Code Art. 780.

“Apart from the rule of strict interpretation, documents establishing building restrictions are subject to the general rules of the Louisiana Civil Code of 1870 governing the interpretation of juridical acts. Words used are to be understood in the common and usual signification.” La. Civil Code Art. 783 Cmt. (c). See also, generally, La. Civil Code Arts. 2045-2057. As the general plan is the private law of the parties, when the words of the general plan “are clear and explicit and lead to no absurd consequences, no further search may be made in search of the parties’ intent.” See La. Civil Code Art. 2046. If the questioned provision regarding termination of the building restriction is unambiguous, then its interpretation is a question of law and not of fact. See New Orleans Jazz and Heritage Foundation, Inc. v. Kirksey, 09-1433, p. 9 (La.App. 4 Cir. 5/26/10), 40 So.3d 394, 401.

With these general legal precepts before us, we turn to a consideration of the specific building restriction in question and the Act’s provision for its conventional termination.

IrB

The three parts of Section 10 of the Act establish the use restrictions on the shopping center. Section 10.1 creates the building restriction in dispute and contains the questioned conditional phrase, “[s]o long as,” limiting the duration of the building restriction; the phrase applies only to the building restriction benefitting the Supermarket Parcel. Section 10.2 imposes further use restrictions generally affecting owners of all lots, including the Supermarket Parcel; the use restrictions in 10.2 prohibit the lot owners from operating or allowing the operation of post offices, amusement parks, veterinary clinics, banquet halls, hotels, and various other businesses, none of which pertain to our inquiry. Section 10.3 states that the “use restrictions in this Article 10 shall constitute building restrictions in accordance with Louisiana Civil Code Articles 775-783 for the benefit of each other Parcel” and explains how the restrictions imposed by Section 10 may in general be amended, terminated, or enforced.

The pertinent wording of the disputed section is as follows:

10.1 So long as a supermarket is operated on the Supermarket Parcel, none of the other Parcels shall be improved or used, in whole or in part, for the conduct of a grocery store or supermarket, which is hereby defined as any establishment from which food or food related products are sold, excluding (a) restaurants ... and (ii)[sie] any establishment from which the sale of food or food related products occurs as an insignificant or insubstantial incident to the conduct of another business.

As we intimated in the introduction, the Trust argues that Section 10.1 controls the termination and enforceability of the restriction and White principally relies upon the provisions of Section 10.3, which it argues is the exclusive means by which the building restriction terminates. See discussion in Part III, post.

|7The provision that “[s]o long as a supermarket is operated on the Supermarket Parcel, none of the other Parcels shall be improved or used, in whole or in part, for the conduct of a grocery store or supermarket,” we find, is unambiguous. The building restriction on the operation of a supermarket by any other Parcel is clear, but it is also conditional. Thus, the obligation of the Trust, or any other parcel owner, not to operate a supermarket in the shopping center is a conditional obligation. “A conditional obligation is one dependent on an uncertain event.” La. Civil Code Art. 1767. A conditional obligation may be suspensive or resolutory. “If the obligation may not be enforced until the uncertain event occurs, the condition is sus-pensive.” Id. “If the obligation may be immediately enforced but will come to an end when the uncertain event occurs, the condition is resolutory.” Id.

Here, the obligation not to operate a supermarket preceded the occurrence of the “uncertain event.” The occurrence of the uncertain event frees the other parcels in the shopping center, including of course the Trust’s parcel, from the restriction on operating a supermarket or grocery store.

The factual question, then, is whether the uncertain event has occurred. The restriction is effective “[s]o long as a supermarket is operated on the Supermarket Parcel.” Although the word “operated” is undefined in the Act, we are to give words “their generally prevailing meaning.” La. Civil Code Art. 2047. The Act does, however, define “grocery store or supermarket” as “any establishment from which food or food related products are sold” and exempts from its definition restaurants as well as other establishments in which the sale of food is “an insignificant or insubstantial incident to the conduct of another business.” In the context of the Act and of the general plan, the “generally prevailing meaning” is |sthe meaning that best conforms to the object of the Act. And we find that the sense of operating a supermarket or grocery store means managing, conducting, or carrying on any establishment (other than a restaurant) from which the sale of food or food related products is a significant or substantial part of the business. See La. Civil Code ART. 2048.

And on this point it is clear that White has offered no factual support that it has conducted or operated any such food establishment on the Supermarket Parcel since the storm. Thus, the Trust’s evidence is undisputed. Because there is no factual dispute that the uncertain event, that is the discontinuance of the operation of a supermarket or grocery store on the Supermarket Parcel, has occurred, we necessarily conclude the restriction set forth in Section 10.1 is terminated as provided for in the Act itself.

The Trust, therefore, is entitled to a declaration of the termination and unen-forceability of the restriction regarding operating a supermarket or grocery store on any other parcel in the shopping center.

Ill

In this Part we explain why we reject White’s argument that termination of the restriction can only occur through application of the provisions of Section 10.3 of the Act.

In White’s supplemental brief it argues that “the statutory scheme for termination of building restrictions ONLY applies if the restriction itself fails to provide a mode for termination on its own” (emphasis in original). White cites | ^Section 10.3 as the pertinent section dealing with the termination of the building restriction:

10.3 The use restrictions in this Article 10 shall constitute building restrictions in accordance with Louisiana Civil Code Articles 775-783 for the benefit of each other Parcel. The use restrictions established in Section 10.1 may be amended or terminated at any time by an instrument in writing and recordable form executed by the Supermarket Owner. The use restrictions established in Section 10.2 may be amended or terminated at any time by an instrument in writing executed by the Owners of all Parcels. The use restrictions established in Section 10.1 may be enforced only by the Supermarket Owner, and the use restrictions established in Section 10.2 may be enforced by any Owner, [emphasis added]

The argument is that because White, as the Supermarket Owner, has the exclusive ability to terminate the building restriction, the Act contemplates how and when the building restriction terminates; therefore, the court need not look to the Civil Code. White is correct in that Civil Code states, “Building restrictions may be amended ... or may terminate or be terminated[ ] as provided in the act that establishes them.” La. Civil Code Art. 780. And the Civil Code only provides additional methods by which a property owner may terminate building restrictions “[i]n the absence of such provision.” Id.; see also Diefenthal v. Longue Vue Foundation, 02-1470, p. 32 (La.App. 4 Cir. 1/7/04), 865 So.2d 863, 882-883 writ denied 04-0366 (La.4/2/04), 869 So.2d 883.

White is correct in his assertion that the building restriction terminates according to terms in the Act. But White is incorrect in his presumption that 10.3 is the only manner by which the restriction may terminate. Section 10.1, the section creating the building restriction, governs the duration of the building restriction. The common understanding of what it means to sell food or food | inrelated products, the definition in the Act, has not been met since the storm in 2005. And White certainly cannot claim to have operated a grocery store after its grocery store lease was canceled; therefore, the restriction is currently not effective.

White argues that its lease to a supermarket company was sufficient to constitute the operation of a grocery store even though the actual building remained vacant. We find this argument without merit in light of the Act’s stated definition of “grocery store or supermarket” as explained in Part II, ante. White further argued that it was “actively trying to lease” the lot to another supermarket chain. White amends this argument in its supplemental brief to state that although its original supermarket lessee has left, it has found another potential supermarket lessee and has committed to spending its own money to improve the site, and expects to receive grant money from the City of New Orleans. Although White clearly seems to have expended money and effort searching for a new lessee, the lot has been vacant for far longer than any reasonable delay would allow.

Another of White’s arguments is that because of the lease with the supermarket chain, White was unable to lease the Supermarket Parcel to another supermarket company, so the obligation to operate a grocery store should be suspended until the time the lease was canceled. By White’s own assertion, the building restriction granting White the exclusive right to operate a grocery store was to benefit the shopping center as a whole. And interpreting the Act as implementing a general plan that is also feasible, it would be unreasonable to assume the Act intended to prevent other lots from opening an anchor store after the original anchor has abandoned the shopping center. See La. Civil Code Art. 775. Allowing the lot that is expected to house the anchor business in the shopping [^center to be vacant for years would certainly hurt the other businesses in the shopping center, thus not benefitting each other lot as contemplated in Section 10.3.

White further argues that the building restriction has not prescribed or been abandoned. White has not violated the building restriction through a contrary use such as any of the uses described in Section 10.2. See La. Civil Code Art. 781. If White had, for example, operated a post office, then the other lot owners could not prevent him from the continued operation of that post office. There has also been no abandonment of the general plan as contemplated in Civil Code Article -782 as would have occurred had multiple other lots already opened grocery stores and had not been stopped so as to constitute an abandonment of the plan as a whole. We agree with White on these matters because the Act does not impose an affirmative duty on the Supermarket Parcel to operate a grocery store; rather, White’s ability to prevent other lots from operating grocery stores is contingent on White’s continued operation of one. This case turns on whether the building restriction terminates according to the terms in the Act; therefore, these arguments are unpersuasive.

IV

In this Part we address the standard of review which we have employed in considering the trial court’s denial of a summary judgment in a declaratory action proceeding.

The standard of review for a motion for summary judgment is de novo. Independent Fire Ins. Co. v. Sunbeam Corp., 755 So.2d 226, 228 (La.2000); Warner v. Alex Enterprises, Inc., 08-0929, p. 3 (La.App. 4 Cir. 1/28/09), 4 So.3d 922, 924. We afford no deference to the trial judge’s conclusions about whether |12there are genuine issues of material fact. See La. C.C.P. Art. 966 B. Because we review the trial court’s ruling de novo, we use the same standard as the trial court, which is that summary judgment is appropriate, and indeed favored, when there is no issue of material fact. See La. C.C.P. Art. 966 A(2) and B. Thus, we determine the same issues as does the trial court: “whether there is any genuine issue of material fact, and whether the mover is entitled to judgment as a matter of law.” Hood v. Cotter, 08-0215, p. 8 (La.12/2/08), 5 So.3d 819, 825.

White, as the adverse party to a motion for summary judgment, must show a disputed material fact and cannot rest on the mere denial of its allegations. La. C.C.P. Art. 967. A “genuine issue” is a “triable issue.” Jones v. Estate of Santiago, 03-1424, p. 6 (La.4/14/04), 870 So.2d 1002, 1006. The parties do not dispute any issues of fact that would require the weighing of evidence.

The purpose of a declaratory judgment is to provide a method whereby parties may request a trial judge to “declare rights, status, and other legal relations whether or not further relief is or could be claimed.” La. C.C.P. Art. 1871. The articles on declaratory judgments are remedial and should “be liberally construed and administered.” La. C.C.P. Art. 1881. A party is entitled to relief by declaratory judgment when its rights are uncertain or disputed in an immediate and genuine situation, and the declaratory judgment will remove the uncertainty or terminate the dispute. See Duplantis v. Louisiana Board of Ethics, 00-1750, pp. 11-12 (La.3/23/01), 782 So.2d 582, 599. A function of a declaratory judgment is simply to establish the rights of the parties. See Williams v. City of Baton Rouge, 02-0339 (La.App. 1 Cir. 2/14/03), 848 So.2d 9. Declaratory judgments promote the simple, expedient trial of cases involving questions readily lending themselves to trial without the usual formalities, making speedy resolution of the issues | ^possible. See Couvillion v. James Pest Control, Inc., 98-2382 (La.App. 4 Cir. 3/3/99), 729 So.2d 172.

Trial courts are vested with wide discretion in deciding whether to grant or refuse declaratory relief. See Louisiana Supreme Court Committee on Bar Admissions ex rel. Webb v. Roberts, 00-2517 (La.2/21/01), 779 So.2d 726. For a declaratory judgment to be granted there must be a justiciable controversy, as courts are not permitted to issue advisory opinions based on a contingency which may or may not occur. See Couvillion, supra. The jurisprudence further provides that courts should not decide abstract, hypothetical or moot controversies, or render advisory opinions with respect to such controversies. See St. Charles Parish School Board v. GAF Corp., 512 So.2d 1165, 1170 (La.1987) (on rehearing).

Here, there is a justiciable controversy. The respective rights of the Trust and of White under the general plan have been uncertain and a judicial declaration of their rights is appropriate. Because the Act establishing the building restriction and providing for its termination is unambiguous, we apply its provisions as a matter of law. See Blessey v. McHugh, 94-0555 (La. App. 1 Cir. 7/27/95), 664 So.2d 115, 121. And because there is no genuine issue of material fact about whether White as Supermarket Owner was operating a supermarket or grocery store on the Supermarket Parcel, we find as a matter of law that the Trust is entitled to a declaratory judgment.

DECREE

We hereby grant the application of Schwegmann Family Trust No. 2 for supervisory relief, reverse the interlocutory trial court judgment rendered on April 8th, 2011, and render judgment.

| ]4Accordingly, there is hereby judgment in favor of Schwegmann Family Trust No. 2 and against White III, LLC, declaring that the building restriction set forth in Section 10.1 of the juridical act entitled “Act of Establishment of Predial Servi-tudes and Building Restrictions” by Schwegmann Giant Super Markets, a partnership, dated May 19th, 1994 before Angela J. Crowder, Notary Public, and recorded at NA # 94-25081, records of Orleans Parish, is forever terminated and unenforceable, and that all parcels or lots covered by the general plan thereof, including the Trust’s parcel, are forever free of the said building restriction which bene-fitted White’s Supermarket Parcel.

All costs are taxed to White. See La. C.C.P. Art. 2164.

WRIT GRANTED; JUDGMENT REVERSED AND RENDERED

APPENDIX A

| ^Description of Schwegmann Family Trust No. 2’s former Circuit City lot: LOT 3DhI-2

A CERTAIN PIECE OR PORTION OF GROUND, together with all the buildings and improvements thereon and all the rights, ways, privileges, servitudes, advantages and appurtenances thereunto belonging or in anywise appertaining, situated in the State of Louisiana, Parish of Orleans, City of New Orleans, Third District in that part known as Lakratt Tract, designated as Lot 3D-4-2 bounded by Interstate Highway 10, Bullard Avenue, Levy (formerly Eastover Boulevard) Drive and the Jahncke Canal and is more fully described as follows:

COMMENCING at the intersection of the projected easterly right-of-way line of Bul-lard Avenue and the projected northerly right-of-way line of Levy (formerly East-over Boulevard) Drive;

THENCE, go along the aforesaid projected easterly right-of-way line, North 36 degrees 27 minutes 35 seconds West, a distance of 23.00 feet to a point;

THENCE, go along the aforesaid easterly right-of-way line, North 36 degrees 27 minutes 35 seconds West, a distance of 883.00 feet to a point;

THENCE, continue along the aforesaid easterly right-of-way line, North 35 degrees 13 minutes 37 seconds West, a distance of 172.15 feet to a point at the intersection of the easterly right-of-way line of Bullard Avenue and the southerly right-of-way line of Interstate Highway 10;

THENCE, turn and go along the aforesaid Southerly right-of-way line, North 12 degrees 32 minutes 24 seconds East, a distance of 123.92 feet to the POINT OF BEGINNING;

THENCE, continue along the aforesaid southerly right-of-way line, North 12 degrees 32 minutes 24 seconds East, a distance of 39.63 feet to a point;

THENCE, turn and continue along the aforesaid southerly right-of-way line, North 36 degrees 27 minutes 35 seconds West, a distance of 18.82 feet to a point;

THENCE, turn and go North 43 degrees 47 minutes 41 seconds East, a distance of 28.84 feet to a point;

THENCE, turn and go South 50 degrees 40 minutes 26 seconds East, a distance of 24.45 feet to a point;

THENCE, turn and go North 53 degrees 32 minutes 25 seconds East, a distance of 83.04 feet to a point;

THENCE, turn and go along a curve to the right, having a radius of 40.00 feet and an arc length of 14.02 feet to a point of tangent;

THENCE, turn and go North 43 degrees 47 minutes 41 seconds East, a distance of 202.94 feet to a point;

THENCE, turn and go North 82 degrees 59 minutes 28 seconds East, a distance of 59.26 feet to a point;

THENCE, turn and go South 36 degrees 27 minutes 35 seconds East, a distance of 548.85 feet to a point;

THENCE, turn and go South 08 degrees 32 minutes 25 seconds West, a distance of 45.25 feet to a point;

THENCE, turn and go South 53 degrees 32 minutes 25 seconds West, a distance of 215.43 feet to a point;

THENCE, turn and go along a curve to the right, having a radius of 25.00 feet, and an arc length of 4.52 feet to a point of tangent;

THENCE, turn and go North 36 degrees 27 minutes 35 seconds West, a distance of 142.60 feet to a point;

THENCE, turn and go North 24 degrees 33 minutes 01 seconds West, a distance of 46.75 feet to a point;

THENCE, turn and go North 36 degrees 27 minutes 35 seconds West, a distance of 58.60 feet to a point;

THENCE, turn and go North 43 degrees 38 minutes 32 seconds West, a distance of 77.16 feet to a point;

THENCE, turn and go North 36 degrees 27 minutes 35 seconds West, a distance of 156.25 feet to a point of curve;

THENCE, turn and go along a curve to the right, having a radius of 64.50 feet, and an arc length of 35.01 feet to a point of tangent;

L fiTHENCE, turn and go South 84 degrees 38 minutes 37 seconds West, a distance of 52.92 feet to a point;

THENCE, turn and go South 53 degrees 32 minutes 25 seconds West, a distance of 128.23 feet to a point on the southerly right-of-way line of Interstate Highway 10, said point being the POINT OF BEGINNING.

The above described portion of ground contains 150,331.34 square feet or 3.451 acres. And in accordance with a plan of survey by R.P. Fontcuberta Jr., Registered Professional Land Surveyor, dated November 30, 1993, revised May 13, 1994, the aforesaid lot is shown to have same designation, location and measurements and is shown to be a Lease Area for Circuit City.

Description of White’s “supermarket parcel”: LOT 3C-4-1

SECTION 26, LAKRATT TRACT THIRD DISTRICT ORLEANS PARISH, LA

Commence at the intersection of the projection of the Easterly Right-of-Way line of Bullard Avenue and the Northerly Right-of-Way line of Levy Drive (formerly Eastover Blvd.); measure thence along said Northerly Right-of-Way line N 53'32'25" E, a distance of 519.00 feet to the Point of Beginning, measure then from the Point of Beginning N 36'27'35" W, a distance of 606.17 feet; thence N 53'32'25" E, a distance of 453.10 feet thence S 36'27'35" E a distance of 0.67 feet to a point, thence N 53'32'25" E a distance of 61.95 feet to a point, thence S 36'27'35" E a distance of 13.80 feet to a point, thence N 53'32'25" E a distance of 140.42 feet to a point, thence N 36'27'35" W a distance of 66.30 feet to a point, thence N 53'32'25" E a distance of 85.12 feet to a point on the Westerly boundary line of Jahncke Canal; thence along said Westerly line S 36'27'35" E a distance of 658.00 feet to a point on the Northerly boundary line of Levy Drive (formerly Eastover Blvd.); thence along said Northerly line S 53'32'25" W a distance of 740.59 feet to the Point of Beginning and contains 10.237 Acres. All in accordance with a plan of survey by R.P. Fontcuberta, Jr., Registered Professional Land Surveyor, dated April 9, 1987, Revised April 22,1987.

      . Because White is the only entity able to enforce the building restriction challenged here, the Trust need sue only White to have the building restriction declared terminated. Cf La. C.C.P. Art. 641.

      . See Herlitz Const. Co., Inc. v. Hotel Investors of New Iberia, Inc., 396 So.2d 878 (La.1981) for guidelines on granting supervisory relief: the trial court's ruling is arguably incorrect, a reversal will terminate the litigation, and there is no dispute of fact to be resolved, then the merits of the application for supervisory writs should be decided in an attempt to avoid the waste of time and expense of a possibly useless future trial on the merits.

      . Even if the Supermarket Owner reopens a grocery store, the Supermarket Parcel will not reacquire the right to prevent the other lots from selling groceries. See Suskind v. Shervington, 03-0037, p. 6 (La.App. 4 Cir. 4/16/03), 846 So.2d 93, 97 writ denied 03-1376 (La.9/19/03), 853 So.2d 644 (The resolu-tory condition in an agreement to purchase could not be revived once the condition extinguished the contract).


author: MICHAEL E. KIRBY, Judge.

text:
    Mildred JONES v. NEXT GENERATION HOMES, LLC and Recovery Development Group, LLC.
    No. 2011-CA-0407.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 5, 2011.

      Ramona G. Fernandez, New Orleans, LA, Rev. Rickey Nelson Jones, Pro Hac Vice, Law Offices of Reverend Rickey Nelson Jones, Baltimore, MD, for Plaintiff/Appellant.
    (Court composed of Judge MICHAEL E. KIRBY, Judge TERRI F. LOVE, Judge PAUL A. BONIN).
   MICHAEL E. KIRBY, Judge.

| T Plaintiff, Mildred Jones, appeals the January 4, 2011 trial court judgment denying her motion for summary judgment and ordering that counsel previously admitted pro hac vice may no longer represent her in this matter.

The denial of a motion for summary judgment is an interlocutory decree that is not appealable absent a showing of irreparable injury. La. C.C.P. art. 2083; Natty v. D.H. Holmes Co., Ltd., 99-2826, p. 6 (La.App. 4 Cir. 12/27/00), 775 So.2d 695, 698; Orleans Parish School Board v. Scheyd, Inc., 95-2658, p. 1 (La.App. 4 Cir. 4/24/96), 678 So.2d 274, 275. There has been no showing of how the denial of this motion will result in irreparable injury to plaintiff. Because the denial of the motion for summary judgment is not a final ap-pealable judgment, we are dismissing without prejudice the portion of plaintiffs appeal relating to the denial of the motion for summary judgment. Although plaintiff does not have the right to an immediate appeal on this issue, she has not lost her right to appeal the denial of her motion for summary judgment after final judgment is rendered adjudicating all of the claims, demands, issues and theories as to all parties.

|2An order granting a motion for a visiting attorney to appear pro hac vice is an interlocutory judgment, and therefore, is not appealable. Williams v. City of New Orleans ex rel. Public Belt R.R. Com’n of City of New Orleans, 2002-1127, p. 9, (La.12/4/02), 831 So.2d 947, 954. Similarly, the revocation of an appointment of counsel pro hac vice is also not a final appealable judgment, as it does not determine the merits of the case in whole or in part. La. C.C.P. Arts. 1841, 2083. However, if not addressed now, this issue will become moot by the time plaintiff can file an appeal.

This Court has converted appeals of nonappealable interlocutory judgments to applications for supervisory writs in cases where the appeals were filed within the thirty day period allowed for the filing of applications for supervisory writs. See Barham, Warner & Bellamy, L.L.C. v. Strategic Alliance Partners, L.L.C., 2009-1528 (La.App. 4 Cir. 5/26/10), 40 So.3d 1149; Rule 4-3, Uniform Rules — Courts of Appeal. Because plaintiff in the instant case filed her motion for appeal within thirty days of the judgment at issue, we will convert the appeal to an application for supervisory writs on the limited issue of the revocation of co-counsel’s pro hac vice status, and consider it under our supervisory jurisdiction.

In this case, plaintiff entered into a contract whereby the defendants were to provide her with a modular home. Plaintiff filed suit alleging a breach of contract and seeking to invalidate a lien filed in the mortgage and conveyance records. Plaintiff was represented by local counsel, and Reverend Rickey Nelson Jones |Hfiled an application to represent plaintiff as co-counsel pro hac vice. The trial court granted the application of Reverend Jones.

The defendants subsequently filed a re-conventional demand, asserting claims against both plaintiff and Reverend Jones. Defendants alleged in their demand that the actions of Reverend Jones interfered with the defendants’ ability to comply with the contract. Plaintiff then filed a motion for summary judgment, which was later denied. At the hearing on the motion, the trial court stated that Reverend Jones could no longer represent plaintiff because he was now a party to the lawsuit. The trial court revoked the order granting Reverend Jones’ application to appear as co-counsel pro hac vice on behalf of plaintiff.

Rule 3.7(a) of the Louisiana Rules of Professional Conduct states:

A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness unless:

(1) The testimony relates to an uncontested issue;
(2) The testimony relates to the nature and value of legal services rendered in the case; or
(3) Disqualification of the lawyer would work substantial hardship on the client.

Reverend Jones is likely to be a necessary witness in this matter based on the allegations of the reconventional demand. His testimony would relate to a contested issue (i.e. his alleged role in defendants’ inability to comply with the contract with plaintiff), and not to the nature and value of his legal services in this Rmatter. Additionally, plaintiff has been represented by local counsel since the filing of the petition in this case so the revocation of Reverend Jones’ status as counsel pro hac vice will not work a substantial hardship on plaintiff.

Rule 17 § 18(A)(3)(v) of the Rules of the Supreme Court of Louisiana states that “[a]dmission to appear as counsel pro hac vice in a suit may be revoked for any of the reasons listed in subpart (A)(3)(iv) above, or for any other reason the court or agency, in its discretion, deems appropriate.” (Emphasis ours.) We find no abuse of the trial court’s discretion in its decision to revoke Reverend Jones’ admission to appear as counsel pro hac vice on behalf of plaintiff.

For the reasons stated above, we dismiss the appeal of the denial of plaintiff’s motion for summary judgment without prejudice. We convert the appeal of the trial court’s revocation of co-counsel’s pro hac vice status to an application for supervisory writs. We deny the writ application, and affirm the trial court’s ruling revoking Reverend Jones’ pro hac vice status.

APPEAL OF DENIAL OF SUMMARY JUDGMENT DISMISSED WITHOUT PREJUDICE; APPEAL OF REVOCATION OF CO-COUNSEL’S PRO HAC VICE STATUS CONVERTED TO APPLICATION FOR SUPERVISORY WRITS; WRIT DENIED.

      . Subpart (A)(3)(iv), entitled "Standard for Admission and Revocation of Admission,” states:
      The courts and agencies of this state have discretion as to whether to grant motions and applications for admission pro hac vice. A motion seeking pro hac vice admission ordinarily should be granted unless the court or agency finds reason to believe:
      (a) The admission may be detrimental to the prompt, fair and efficient administration of justice;
      (b) The admission may be detrimental to legitimate interests of the parties to the proceedings other than the client(s) the applicant proposes to represent;
      (c) One or more of the clients the applicant proposes to represent may be at risk of receiving inadequate representation and cannot adequately appreciate the risk;
      (d) The applicant has engaged in frequent appearances as to constitute regular practice in this state;
      (e) The applicant attorney is not competent or ethically fit to practice; or
      (f) The applicant has failed to otherwise comply with the requirements of these rules.