author: WILLIAMS, J.

text:
    Janis JOHNSON, Plaintiff-Appellant v. AMERICAN BELL FEDERAL CREDIT UNION, Defendant-Appellee.
    No. 49,321-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 1, 2014.

      Janis Johnson, In Proper Person.
    William E. Byram, Shreveport, for Ap-pellee, American Bell Federal Credit Union and Shirley Coutee.
    Before WILLIAMS, DREW and GARRETT, JJ.
   WILLIAMS, J.

|TThe plaintiff, Janis Johnson, appeals a trial court judgment in favor of the defendants, American Bell Federal Credit Union and Shirley Coutee. The court dismissed plaintiffs action as abandoned. For the following reasons, we affirm.

FACTS

In March 2005, Janis Johnson borrowed $7,058 from American Bell Federal Credit Union. She agreed to pledge her shares of United Parcel Service common stock as security for the loan. After defaulting on her second written loan modification, Johnson contacted Shirley Coutee, an employee of the credit union, to request another loan modification. After some discussion, the credit union declined to offer Johnson a third loan modification. Johnson was notified that if the loan was not paid in full the credit union would liquidate the shares of stock securing the loan. After Johnson failed to pay, the credit union liquidated the stock to pay the balance due and forwarded a check to Johnson for the amount in excess of the loan balance.

In June 2009, the plaintiff, Janis Johnson, filed a petition for damages against the defendants, American Bell Federal Credit Union and Shirley Coutee, alleging a breach of contract. The defendants filed an answer, scheduled plaintiffs deposition and served her with a subpoena duces tecum, seeking documents related to the loan account. On November 9, 2009, defendants conducted the deposition of plaintiff, who produced some documents responsive to the subpoena. In addition, plaintiff agreed to look in her records and provide defendants with any other loan documents she |2possessed. In December 2009, the defendants’ attorney wrote a letter to plaintiffs attorney requesting the production of any additional loan documents which she had located. By letter dated January 28, 2010, plaintiffs attorney submitted to defendants’ attorney the additional loan documents provided by plaintiff. In June 2012, plaintiffs attorney was allowed to withdraw as counsel of record.

On November 14, 2012, defendants filed a motion to dismiss the action as abandoned, alleging that no formal action had been taken in the prosecution of the case for three years after the depositions on November 9, 2009. The trial court then entered an order dismissing the action as abandoned. Subsequently, the plaintiff filed a pleading requesting that the court set aside the dismissal on the grounds that a step in the prosecution of the case had been taken on January 28, 2010, less than three years before the filing of the motion to dismiss, when her attorney mailed supplemental discovery to defendants’ attorney.

After a hearing, the trial court issued an opinion denying plaintiffs motion to set aside the dismissal. The court found that the act of plaintiffs attorney in mailing a letter with additional documents to defendants’ attorney did not constitute a step in the prosecution of the case because the letter was not formal discovery. Plaintiff appeals the judgment.

DISCUSSION

The plaintiff contends the trial court erred in dismissing the action. Plaintiff argues that the mailing of additional documents to defendants was a step in the prosecution of the case sufficient to preclude abandonment.

IsLSA-C.C.P. art. 561 provides in pertinent part:

(1) An action ... is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of three years[.]
(3) This provision shall be operative without formal order, but, on ex parte motion of any party or other interested ' person by affidavit which provides that no step has been timely taken in the prosecution or defense of the action, the trial court shall enter a formal order of dismissal as of the date of its abandonment.

Additionally, any formal discovery as authorized by the Code of Civil Procedure and served on all parties whether or not filed of record, including the taking of a deposition with or without formal notice, shall be deemed a step in the prosecution or defense of an action. LSA-C.C.P. art. 561(B).

Requests for production or inspection and the responses thereto shall be served upon other counsel or parties. LSA-C.C.P. art. 1474(B). All notices, requests and responses requiring service on adverse parties may be served as provided in Article 1313, unless otherwise provided by law. LSA-C.C.P. art. 1474(A). Every pleading which may under law be served as provided in Article 1313 may be served by mailing a copy thereof to the counsel of record. LSA-C.C.P. art. 1313(A)(1). When service ■is made by mail, the party or counsel making the service shall file in the record a certificate of the manner of such service. LSA-C.C.P. art. 1313(B).

Article 561 sets forth three requirements: (1) that a party take some “step” in the prosecution or defense of the action; (2) that it be done in the trial court on the record of the suit, with the exception of formal discovery served on all parties; and (3) that the step be taken within three years of the |4Iast step taken by either party. James v. Formosa Plastics Corp. of Louisiana, 2001-2056 (La.4/3/02), 813 So.2d 335; Bryant v. City of Monroe, 37,811 (La.App.2d Cir.10/29/03), 859 So.2d 907. A party takes a “step” in the prosecution or defense of an action when he or she takes formal action before the court, or on the record, intended to hasten the matter to judgment, or when the party conducts formal discovery or takes a deposition, with or without formal notice. James, supra; Clark v. State Farm Mut. Auto. Ins. Co., 2000-3010 (La.5/15/01), 785 So.2d 779.

In the present case, the motion to withdraw by plaintiffs attorney is the only filing contained in the record for the period from November 9, 2009, the date of plaintiffs deposition, to November 14, 2012, when the defendants filed a motion to dismiss on the grounds of abandonment. A motion to withdraw or enroll as counsel is not considered a step in the prosecution of an action. Koutroulis v. Centennial Healthcare Corp., 38,068 (La.App.2d Cir.4/14/10), 34 So.3d 503.

Additionally, the record shows that the December 2009 letter from defendants’ attorney to the plaintiffs counsel was not a step in the defense of the action or a waiver of the abandonment period. In the letter, defense counsel asked whether plaintiff had located any additional documents responsive to the subpoena duces tecum. Similar to the situation in Moore v. Eden Gardens Nursing Center, 37,362 (La.App.2d Cir.6/25/03), 850 So.2d 998, the defense counsel’s letter was not a new discovery action, but a followup to a previous discovery request for production of documents.

In her brief, plaintiff argues that her attorney’s act of mailing ^documents to the defendants’ attorney was the submission of supplemental discovery constituting a step in the prosecution of her action that interrupted the period of abandonment. Article 561 recognizes “formal discovery” which has been “served” on all parties as a step in the prosecution of an action. Although discovery responses may be served by mail, Article 1313 requires that a party or counsel serving discovery by mail shall file in the record a certificate of such service. We note that plaintiffs attorney did not file in this record the required certificate of service regarding any documents mailed to defendants in January 2010.

Based upon this record and the applicable law, the mailing of documents by plaintiffs attorney in January 2010 cannot be considered formal discovery served on defendants as required by the language of Article 561. Thus, the plaintiff has failed to demonstrate that she performed a step in the prosecution of the action sufficient to preclude abandonment. Consequently, we conclude that the trial court did not err in granting the defendants’ motion to dismiss the action as abandoned. The assignment of error lacks merit.

CONCLUSION

For the foregoing reasons, the trial court’s judgment is affirmed. Costs of this appeal are assessed to the appellant, Janis Johnson.

AFFIRMED.


source: Caselaw Access Project

author: BROWN, Chief Judge.

license: Public Domain

text:
    John Oliver LOWERY, Rice W. Gregory, III and Rice W. Gregory, IV, Plaintiffs v. William Allen BUTLER, III, Ellington Revocable Trust, and The Camouflage Shoppe, Inc., Defendants.
    No. 49,322-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 1, 2014.

      McNew, King, Mills, Burch & Landry, Monroe, By: Brady D. King, II, for Defendant/Appellant William Butler.
    Cotton, Bolton, Hoychick & Doughty, Rayville, By: David P. Doughty, for Plaintiffs/Appellees John Lowery, Rice Gregory, III and Rice Gregory, IV.
    Hallack Law Firm, APLC, West Monroe, By: William H. Hallack, Jr., Dennis W. Hallack, for Defendants/Appellees Ellington and The Camouflage Shoppe.
    Before BROWN, WILLIAMS, and GARRETT, JJ.
   BROWN, Chief Judge.

11 This action was filed by plaintiffs, John Oliver Lowery, Rice Gregory, III, and Rice Gregory, IV, to enforce a right of first refusal to buy undivided interests in hunting and fishing rights. The trial court set aside a sale of an undivided 2/7 interest to defendant, William Butler, III, and granted specific performance of the right of first refusal to plaintiffs. We affirm.

Facts and Procedural Background

The parties involved in this lawsuit are co-owners of hunting and fishing rights on approximately 1,275 acres in Tensas Parish. These rights originated from a 1973 cash sale deed of this land by its then owners to the W.E. Parks Lumber Company, yvherein the hunting and fishing rights were reserved or retained for ten years from August 1, 1973, and thereafter the option to renew for up to five subsequent ten-year periods. The co-owners refer to their organization as the Winns-boro Hunting Club. Prior to the actions that brought about this suit, there were seven co-owners: (1) defendant/appellant, William Butler, III; (2) defendant/appel-lee, Ellington Revocable Trust (trustee-Richard Ellington); (3) defendant/appel-lee, The Camouflage Shoppe, Inc. (owner-Richard Ellington); (4) plaintiff, John Lowery; (5) plaintiff, Rice Gregory, III; (6) plaintiff, Rice Gregory, IV; and (7) Delia Butler (William Butler’s sister), who is not a party to this lawsuit.

On August 28, 2001, the co-owners entered into a Use Agreement and Right of First Refusal. Pursuant to the Right of First Refusal provisions, |2any co-owner desiring to sell its undivided interest must first offer its interest to the other co-owners at the same terms and conditions as the proposed sale. The co-owners would then have ten days from receipt of the notification to exercise their right of first refusal. Thereafter, any co-owner who exercised his or her right of first refusal would have 30 days to complete the purchase of the seller’s interest.

On June 22, 2012, Ellington Revocable Trust and The Camouflage Shoppe, Inc. (hereinafter collectively referred to as “Ellington”), entered into a buy/sale agreement with Ross Cagle. Cagle had been a regular guest of Butler’s at the Winnsbor-ro Hunting Club for almost 40 years. Ca-gle was purchasing both of Ellington’s undivided one-seventh (1/7) interests. The total purchase price for the undivided two-sevenths (2/7) interest was $95,000. The purchase agreement recognized that the sale was “subject to the satisfaction of the right of first refusal,” and it included an acknowledgment that Cagle had deposited $10,000 with Ellington’s escrow agent/attorney, William Hallack, Jr. Thereafter, Ellington notified all co-owners by certified mail dated June 22, 2012, of the purchase agreement and informed them that pursuant to “the provisions of the agreement, each of you has 10 days from the date of receipt of this Notice of Offer to Purchase to notify me that you will purchase.”

On June 25, 2012, William Butler notified Ellington that he was exercising his right of first refusal. Thereafter, on July 2, 2012, plaintiffs, John Lowery, Rice W. Gregory, III, and Rice W. Gregory, IV, each exercised his right of first refusal. The only co-owner to not exercise her |3right of first refusal was Delia Butler. Shortly after plaintiffs exercised their rights, counsel for plaintiffs contacted counsel for Ellington for information as to how to proceed to closing; plaintiffs suggested that the shares be purchased in a pro rata manner. After a month of little or no communication from Mr. Hallack as to how to proceed, counsel for plaintiffs sent a certified letter to Ellington on August 16, 2012, stating that “my clients stand ready to complete the transaction.”

An Assignment and Assumption of Rights and Obligations from Ellington to William Butler was executed on August 22, 2012. According to testimony, present at the closing were Ellington and Butler, their attorney, Mr. Hallack, and Cagle. The monies used for this purchase came from Cagle’s company. Cagle “transferred” the $10,000 deposit he had already placed in escrow to Butler to use as a deposit, and then Cagle brought another cheek in the amount of $85,000. This check was from Cagle’s company but signed by Butler’s wife, who worked for Cagle. Both checks, made out to “William H. Hallack Jr, Atty,” were placed into escrow.

On October 9, 2012, plaintiffs filed a petition seeking to nullify the August 22, 2012, sale and/or to modify and reform the sale to divide the sellers’ two-sevenths (2/7) interest pro rata among them and Butler, which, after a trial on the merits, the trial court granted on November 22, 2013. For the reasons stated herein, we affirm.

Discussion

Butler argues on appeal that the trial court erred in finding that the right of first refusal had not prescribed. Butler contends that since the right |4of first refusal was executed on August 28, 2001, and no term was stated therein in that document, that the right prescribed on August 28, 2011.

Louisiana Civil Code article 2628, which pertains to the time limitations of a right of first refusal, provides:

An option or a right of first refusal that concerns an immovable thing may not be granted for a term longer than ten years. If a longer time for an option or a right of first refusal has been stipulated in a contract, that time shall be reduced to ten years. Nevertheless, if the option or right of first refusal is granted in connection with a contract that gives rise to obligations of continuous or periodic performance, an option or a right of fírst refusal mag be granted for as long a period as required for the performance of those obligations. (Emphasis added).

The trial court found that the existence of the right of first refusal was dependent upon the co-owners’ reservation of their hunting and fishing rights in the original 1973 deed, and the timely exercise of the recurring options to renew those rights every ten years. Based upon this, the trial court determined that the two contracts must be read and applied together; otherwise, the right of first refusal would be meaningless. As such, the trial court found that the exception to the ten-year term limitation applied.

Butler argues that the trial court erred in reading and applying the two separate contracts — the 1973 deed and the Use Agreement and Right of First Refusal — in unison to find that continuous or periodic performance was required. Butler asserts that the two documents are wholly independent of one another and that the trial court should have contained its review of the right of first refusal to that sole contract.

We disagree with Butler’s position. The operation of the Use Agreement and Right of First Refusal is subject to the co-owners exercising | stheir options as set forth in the 1973 deed. This renewal constitutes a periodic performance, and is also one which is limited in term as the co-owners’ hunting and fishing rights will cease in either 2023 or 2033. Furthermore, we note that all parties in this matter, including Ellington and Butler, expressly stated in their testimony that they believed that the right of first refusal was still valid and in full effect at the time the purchase agreement with Cagle was executed. In particular, that purchase agreement provided:

Sellers’ obligation to sell the Property is subject to the satisfaction of the Right of First Refusal. Sellers and Purchaser acknowledge that the other parties to the Use Agreement and Right of First Refusal have a period of 10 days after receipt of notice of this Purchase Agreement during which they can elect to purchase the Property on the same terms and conditions as set forth in this Purchase Agreement.

Plaintiffs and Butler all relied upon this right in exercising their right of first refusal. For Butler to utilize the right of first refusal, and then argue that the right had prescribed, is contradictory.

Butler argues, alternatively, that plaintiffs let their right of first refusal lapse since they failed to consummate the purchase from Ellington within 30 days as required by the Use Agreement and Right of First Refusal. This argument is also without merit. Butler himself failed to complete the purchase of Ellington’s inters est within the 30-day time frame. If plaintiffs’ failure to complete the transaction within 30 days was a cause for their right of first refusal to lapse, then the same would hold true for Butler. As such, his purchase from Ellington would have constituted a new sale and, therefore, would have been subject to plaintiffs’ right of first refusal. | (¡Moreover, the plaintiffs’ inability to conclude the transaction with Ellington was a direct result of the failure of Ellington and his attorney, Mr. Hallack, who also represented Butler, to take any steps to close the sale with plaintiffs, even though plaintiffs had been doggedly seeking instruction on how Ellington and Mr. Hallack would like to proceed to closing.

Conclusion

For the reasons stated, the judgment of the trial court is affirmed. Costs of this appeal are assessed to appellant, William Butler, III.

      . The co-owners claim that they have the option to renew their hunting and fishing rights until 2033. The surface owner, however, claims that there are no more options and that the co-owners' rights will end in 2023. This determination is not presently before us.


author: STEWART J. '

text:
    POWERTRAIN OF SHREVEPORT, L.L.C., Plaintiff-Appellant v. Denzil STEPHENSON, Defendant-Appellant.
    No. 49,327-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 1, 2014.

      Hilburn & Hilburn, Shreveport, by Cary A; Hilburn, for Defendant-Appellant, Den-zil Stephenson.
    Downer, Huguet & Wilhite, L.L.C., Shreveport, by Michael A. Marino, for Plaintiff-Appellant, Powertrain of Shreveport.
    Before WILLIAMS, STEWART and LOLLEY, JJ.
   STEWART J. '

liln this matter concerning a noncom-pete and nonsolicitation provision in an operating agreement, both parties appeal the trial court’s judgment granting in part and denying in part a preliminary injunction sought by the plaintiff, Powertrain of Shreveport, L.L.C. (“Powertrain”), against its former member and the defendant, Denzil Stephenson (“Stephenson”). From our review of this record, we find that the operating agreement does not contain an executed noncompetition and nonsolicitation agreement and that it does not require execution of such an agreement under the plain wording of the agreement and the facts of this case. Therefore, we reverse that part of the trial court’s judgment granting the preliminary injunction, affirm that part denying injunctive relief, and dismiss the claims of Powertrain against Stephenson.

FACTS

On April 29, 2013, Powertrain filed suit in the Fourth Judicial District Court, Oua-chita Parish, against Stephenson for assignment of his 10 percent interest in Powertrain back to the company, for a declaratory judgment that he is bound by a noncompetition and nonsolicitation provision in Powertrain’s operating agreement, and for an order precluding Stephenson from being employed by or affiliated with any Powertrain competitor and from soliciting any Powertrain clients. In answer, Stephenson asserted that he offered to assign his interest back to Powertrain’s owner, Joe Niswanger |2(“Joe”), but that he refused to sign any noncompetition and nonsolicitation agreement.

By a judgment rendered August 14, 2013, on a exception of improper venue, the matter was transferred to the First Judicial District Court, Caddo Parish, where it was heard on October 23, 2013.

At the start of trial, the parties agreed to a number of stipulations. First, Stephenson was formerly employed by Pow-ertrain under a guaranteed payment arrangement. Second, he was no longer employed by Powertrain or receiving such payment. Third, Stephenson had become and was then a member of Louisiana Industrial Diesel, LLC (“Industrial”), which was formed two days prior to Stephenson’s departure from Powertrain. Records from the Louisiana Secretary of State’s website show that Industrial was registered on February IB, 2013, and that Stephenson was listed as a member. Fourth, Industrial repairs and services commercial and industrial vehicles, and Powertrain conducted the same business during the time of Stephenson’s employment with it. Fifth, Industrial was servicing one client who had been a Powertrain client during the time of Stephenson’s employment. The parties also stipulated to the amount of any bond to be imposed.

Powertrain’s first witness was Rudy Niswanger (“Rudy”), CEO of Joe Gear Companies (“Joe Gear”). Rudy’s testimony indicated that Powertrain is a subsidiary of Joe Gear, which is owned and operated by the Niswanger family, including Rudy and his father, Joe. According to Rudy, Powertrain is still in business and sells parts for, services, and repairs commercial | .¡vehicles and industrial component parts for such vehicles. However, on cross-examination, he admitted that there is no longer any sign for Powertrain at 1060 Grimmett Drive in Shreveport. The business sign on the building where Powertrain operated while Stephenson was employed there now bears the name Consolidated Truck Parts & Service (“Consolidated”). In fact, on May 1, 2013, Rudy, as vice-president of Joe Gear, mailed a letter to vendors of Powertrain informing them that it would be merging with and become a branch of Consolidated, its “sister company out of Monroe, Louisiana.” The letter noted that operations would continue at the same location, 1060 Grimmett Drive, with no change in office number. The purpose of the letter was to inform vendors of the merger and to establish accounts for Consolidated with the vendors. Even in light of the merger letter to vendors and the absence of any sign for Powertrain at 1060 Grim-mett Drive, Rudy insisted that the merger letter merely referred to something that would happen in the future, but had not yet happened, and that Powertrain was still in business. He claimed that Powertrain shares space with Consolidated and that Powertrain’s business dramatically decreased in the months after Stephenson left. He also testified that the sign on the building says “Consolidated” because that company does more business than Powertrain.

Rudy also testified about Stephenson’s role at Powertrain and described him as the highest-paid person after Joe and a part of upper management. He testified that Stephenson made over $150,000 a year and that he was a valued resource to' Powertrain, involved in every aspect of the ¡4business. Rudy testified about discussing Stephenson assigning his interest in Powertrain back to the company or Joe in February 2013. He believed that Stephenson was given an assignment document and a noncompetition and nonsolicitation agreement to sign at that time.

Raymond Fritz Niswanger (“Fritz”) is an attorney who provides legal services for Powertrain. He drafted the operating agreement at issue. Most of his testimony was proffered and not directly relevant to the operating agreement signed by Stephenson on June 19, 2012. He testified that he reviewed the operating agreement with Stephenson, who indicated that he understood it prior to signing it. Fritz also claimed that Powertrain was still operating.

Stephenson’s testimony generally confirmed Rudy’s description of his role with Powertrain. Stephenson testified that he was appointed general manager when the former general manager left. He stated that they were trying to “force him to run the entire business” and that he was involved in every aspect of Powertrain. He described himself as the “information hub.” Stephenson admitted that he did become a member of another company, Industrial, after leaving Powertrain. He denied actively soliciting any of Power-train’s customers for his new company, but he did admit that Industrial has done work for at least one business, P-8, that Power-train had serviced while he was employed there. He claimed that any former Pow-ertrain clients now being serviced by Industrial “found” him. With regard to the noncompetition and nonsolicitation agreement, Stephenson denied having direct discussions with anyone at Powertrain about such an | ¡¡agreement, and he claimed he was not aware that Powertrain wanted him to sign such an agreement. Outside the presence of the courtroom on the day of trial, Stephenson signed an act assigning his, 10 percent interest in Powertrain to Joe.

The relevant provisions of the operating agreement are found in Article VII, which addresses “Changes in Members” and has 10 sections. Section 7.1, which is entitled “Transfer of Membership Interest,” states in relevant part:

(a) There shall be no sale, exchange, donation, or other transfer or assignment, for valuable consideration or otherwise (“Transfer ”), other than to Company, of all or any part of a Member’s or Assignee’s Interest in Company without complying with this Article, and any attempted Transfer without complying herewith shall not be recognized by Company.

The remainder of Section 7.1 sets forth an intricate process for the transfer of a membership interest and appears to require the Company or other members to have a right of first refusal before the interest can be transferred to a third party.

Section 7.2, which addresses “Termination of Employment,” states:

For any Member or Assignee, if all of the following apply:

(a) such Member or Assignee is employed by Company as an employee or is otherwise drawing a guaranteed payment for active services to Company; (b) that employment relationship or that guaranteed payment arrangement is terminated for any reason whatsoever (“Termination ”); and (c) the event causing that Termination does not otherwise qualify as a Transfer under Section 7.1 above; then that Termination shall constitute a Transfer under Section 7.1 above, thereby triggering the relevant provisions of Section 7.1 above relating to the responsibility to offer to Transfer an Interest in Company to Company and /or the other Members.

^Section 7.3 is the noncompetition and nonsolicitation provision. It provides, in relevant part, as follows:

As an essential part of any Transfer by any Member or Assignee of all of his Interest in Company, that Member or Assignee (“Prohibited Party ”) shall execute an agreement prohibiting the Prohibited Party from directly or indirectly, owning, managing, operating, controlling, being employed by, consulting with or for, providing financing to, or otherwise participating directly or indirectly in any business which is engaged in selling, servicing, and repairing commercial trucks and similar vehicles and their component parts in the Territory (“Business”). This covenant not to compete with Company shall apply to competition with the Business in the Louisiana parishes of Caddo and Bossier (“Territory ”). Furthermore, the Prohibited Party shall execute an agreement prohibiting him from directly or indirectly soliciting, for purposes that compete with the Business: (a) any customers of Company in the Territory with whom Company is doing business at the time of the Termination of the Prohibited Party; and (B) any customers of Company in the Territory with whom Company has done business during the term of the Prohibited Party’s employment relationship or similar relationship with Company.

Section 7.3 further provides a term of 24 months for the noncompetition and nonsol-icitation agreement beginning on the day of termination.

Lastly of relevance here is Section 7.10, entitled “Inapplicability” and which states:

Sections 7.1, 7.2, 7.3, and 7.5 above shall not apply to any Transfer to or from, Termination of, or security interest granted by, whether past or prospective, Joe D. Niswanger. Furthermore, all Members hereby waive any defects in any Transfer made prior to the date of this Agreement.

At the close of trial, the trial judge found the operating agreement applicable for purposes of the issuance of a preliminary injunction. The trial judge also made two findings of fact. The trial judge found that Powertrain still exists and is operational, and he found that Stephenson was more than just an employee. Based on these findings, the stipulations of the 17parties, and the operating agreement, the trial judge granted a limited preliminary injunction in favor of Powertrain “prohibiting [Stephenson] from servicing or taking on any services, or provide [sic ] any services” to any clients or customers who are current Powertrain customers. However, the judgment signed by the trial court on November 12, 2013, was more encompassing and prohibited Stephenson from the following “selling, servicing and repairing commercial trucks, similar vehicles and their component parts, or industrial component parts for any clients or customers in Caddo Parish and Bossier Parish” who were previously serviced by and who are currently serviced by Powertrain. The judgment also precluded Stephenson from contacting or soliciting any of Powertrain’s former or current customers.

Following the judgment, Stephenson filed an application for supervisory review, and Powertrain filed a devolutive appeal. By order issued on January 23, 2014, this court granted Stephenson’s writ for perfection as an appeal, noting that the ruling granting the preliminary injunction is a final judgment subject to immediate appeal under La. C.C.P. art. 3612.

In its appeal, Powertrain asserts that the trial court erred in failing to preclude Stephenson from being employed by or affiliated with a competing business. In his appeal, Stephenson asserts that the trial court misinterpreted the operating agreement and therefore erred in granting the preliminary injunction. He also asserts that Powertrain did not show that it continues to engage in business. Finally, he asserts that the trial court’s | sinjunctive relief is broader than the language of the noncompete provision in the operating agreement.

DISCUSSION

As provided by La. C.C.P. art. 3601, an injunction shall issue in cases where irreparable injury, loss, or damage may otherwise result to the applicant, or in other cases provided by law. Meredith v. Tram Investments, Inc., 48,570 (La.App.2d Cir.12/30/13), 130 So.3d 469. Injunctive relief is an extraordinary remedy that should only be issued where the moving party is threatened with irreparable loss or injury and is without an adequate remedy at law. Id.; Brannan v. Talbot, 29,692 (La.App.2d Cir.4/2/97), 691 So.2d 848, writ denied, 97-1419 (La.9/19/97), 701 So.2d 172. The party moving for a preliminary injunction must make a prima facie showing that he will prevail on the merits. Meredith, supra. A trial court has broad discretion in ruling on a preliminary injunction and its ruling will not be disturbed absent an abuse of discretion. Id.; Holmes v. Peoples State Bank of Many, 32,749 (La.App.2d Cir.3/3/00), 753 So.2d 1006.

A limited liability company’s operating agreement is contractual in nature. It binds the members of the company as written and is interpreted pursuant to the law of contract. Ark-La-Tex Safety Showers, LLC v. Jorio, 48,478 (La.App.2d Cir.12/18/13), 132 So.3d 986; Risk Management Services, L.L.C. v. Moss, 09-632 (La.App.5th Cir.4/13/10), 40 So.3d 176, writ denied, 2010-1103 (La.9/3/10), 44 So.3d 683. Contracts have the effect of law for the parties, and the interpretation of the contract involves the determination of the parties’ common intent. Ark-La-Tex Safety Showers, 9supra; La. C.C. art. 2045. We must examine the words of the contract in order to determine the reasonable intention of the parties. Clovelly Oil Co., LLC v. Midstates Petroleum Co., LLC, 2012-2055 (La.3/19/13), 112 So.3d 187. When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent. La. C.C. art. 2046. A clear and unambiguous clause in a contract should not be disregarded so as to pursue its spirit; it is not the court’s duty to “bend the meaning of the words of a contract into harmony with a supposed reasonable intention of the parties.” Clovelly, 12-2055, p. 6, 112 So.3d at 192. Courts must interpret contracts in a “common-sense fashion,” giving the words of the contract their “common and usual significance.” Id. Each provision must be interpreted in light of the other provisions of the contract so that each is given the meaning suggested by the contract as a whole. La. C.C. art. 2050.

The primary issue in this matter is the interpretation of the operating agreement, particularly, whether it requires Stephenson to sign a noncompetition and nonsolicitation provision under the facts of this case. Whether the trial court correctly or incorrectly interpreted a contract, the words of which are clear and unambiguous, is a question of law. Risk Management Services, supra.

Noncompetition agreements have traditionally been disfavored in Louisiana law. Green Clinic, L.L.C. v. Finley, 45,-141 (La.App.2d Cir.1/27/10), 30 So.3d 1094. Every contract, agreement, or provision that restricts one from exercising a lawful profession, business, or trade shall be | mnull and void except as provided in the exceptions set forth in La. R.S. 23:921. Id. However, noncompete agreements are considered in derogation of the common right and must be strictly construed against the party seeking enforcement. Id.; Action Revenue Recovery, L.L.C. v. eBusiness Group, L.L.C., 44,607 (La.App.2d Cir.8/19/09), 17 So.3d 999.

The operating agreement at issue does not contain a noncompetition and nonsolici-tation agreement executed by Stephenson. Instead, Section 7.3 of the operating agreement requires execution of a noncom-petition and nonsolicitation agreement as “an essential part” of a transfer by a member of his interest in Powertrain. This section would seemingly require Stephenson to execute the agreement. However, prior to the trial, Stephenson had not transferred his interest in Powertrain to any person or entity. At the time of the trial, he executed an act purporting to assign his interest in Powertrain back to Joe. Under the plain and unambiguous language of Section 7.10, the provisions of Sections 7.3 “shall not apply to any Transfer to or from, Termination of, or security interest granted by, whether past or prospective, Joe D. Niswanger.” (Emphasis added.) The clear and unambiguous language of this provision applies to transfers both past and prospective. Thus, Section 7.10 is not written as merely limited to addressing some prior act as asserted by Powertrain. It clearly applies prospectively to future transfers to Joe. Under Section 7.10, by transferring his interest in Powertrain to Joe, Stephenson is not required to comply with Section 7.3.

111 The same result is reached by application of Section 7.1, which provides that there shall be no transfer of a membership interest, “other than to Company,” without complying with Article VII. (Emphasis added.) By transferring his interest back to Joe, Stephenson is in effect transferring it back to the company and does not have to otherwise comply with Article VII, which includes the noncompetition and nonsolicitation section. Had Powertrain sought to bind Stephenson to a noncompet-ition and nonsolicitation agreement, it could have easily done so by having the execution of the operating agreement result in a fully executed noncompete and nonsolicitation agreement. See Green Clinic, supra.

We note that the trial court based its judgment in part on the factual finding that Powertrain is still in operation. Only the self-serving testimony of the Niswangers supports this determination. We recognize that the trial court’s findings based on credibility determinations may not be reversed except for manifest error because “only the fact finder is cognizant of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said.” Foley v. Entergy Louisiana, Inc., 2006-0983, p. 10 (La.11/29/06), 946 So.2d 144, 153; Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). However, manifest error may be found where the witness’s story is contradicted by documents or objective evidence or where the story is internally inconsistent or implausible that a reasonable finder of fact would not give it credit. Foley, supra; Rosell, supra.

| ^Having reviewed this record, we find • manifest error in the trial court’s determination that. Powertrain is still in operation. The May 1, 2013, letter from Rudy to Powertrain vendors entered into evidence as Exhibit D-4 indicated an imminent merger whereby Powertrain would become a branch of Consolidated, “its sister company out of Monroe, Louisiana.” Photographs of the change in sign on the building at 1060 Grimmett Drive from Powertrain to Consolidated support a finding that Consolidated, not Powertrain, is the current operating entity through the merger mentioned in the letter of May 1, 2013. This documentary evidence, particularly in the absence of any documentary or objective evidence of Powertrain’s continued operation, belies the testimony of the Niswangers that Powertrain remains operational apart from Consolidated.

For all these reasons, we find that the trial court abused its discretion in granting the preliminary injunction in this matter. Powertrain did not satisfy its burden of making a prima facie showing that it will prevail on the merits and is not entitled to injunctive relief under the operating agreement so long as Stephenson transfers his interest to Joe and / or the Company as was sought by Powertrain and as he purported to do at trial.

CONCLUSION

For the reasons stated, the judgment of the trial court granting a preliminary injunction is reversed. To the extent that the trial court denied other injunctive relief requested by Powértrain, its judgment is affirmed. Costs of appeal are assessed against Powertrain.

REVERSED IN PART and AFFIRMED IN PART.

      . An operating agreement is a written or oral agreement by members of a limited liability company memorializing its affairs and the conduct of its business. La. R.S. 12:1301(A)(16).


author: PICKETT, Judge.

text:
    Ed GRABOWSKI, et ux. v. SMITH & NEPHEW, INC., et al.
    Nos. 13-1409, 14-433.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 1, 2014.
    Charles Schrumpf, Schrumpf & Schrumpf, Sulphur, LA, Steven Broussard, Broussard & Hart, LLC, Lake Charles, LA, for Plaintiffs/Appellants, Ed Grabow-ski, Patsy Grabowski.
    Kim E. Moore, Leila A. D’Aquin, Irwin Fritchie Urquhart & Moore, New Orleans, LA, for Defendants/Appellees, Daniel Forrest, Smith & Nephew, Inc.
    Benjamin J. Guilbeau, Jr., Stockwell, Sievert, Viccellio, Clements & Shaddock, L.L.P., Lake Charles, LA, for Defendants/Appellees, Smith & Nephew, Inc., PUREPLAY Orthopaedic Sales 1, Ltd., Daniel Forrest.
    Court composed of ELIZABETH A. PICKETT, JAMES T. GENOVESE, and PHYLLIS M. KEATY, Judges.
   PICKETT, Judge.

|, For the reasons set forth in the companion case hereto, Ed Grabowski, et ux. v. Smith & Nephew, Inc., et al., 14-433 c/w 13-1409, (La.App. 3 Cir.10/1/14), 149 So.3d 899, the writ application is denied. The judgment of the trial court granting the Motion to Close the Record is affirmed. The grants of summary judgment in favor of Smith & Nephew, Inc., PUREPLAY Orthopaedic Sales 1 Ltd., and Daniel Forrest are reversed, and the matter is remanded to the trial court for further proceedings. Costs of the writ application are assessed to the Grabowskis. Costs of the appeal are assessed to Smith & Nephew, Inc. PUREPLAY Orthopaedic Sales 1 Ltd., and Daniel Forrest.

WRIT DENIED. JUDGMENT AFFIRMED IN PART; REVERSED IN PART; AND REMANDED FOR FURTHER PROCEEDINGS.


author: PETERS, J.

text:
    OMNI ENERGY SERVICES CORP. v. Robert H. RHYNE, Jr., et al.
    Nos. 14-322.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 15, 2014.
    Rehearing Denied Dec. 3, 2014.

      David M. Kaufman, Lafayette, LA, Andre F. Toce, The Toce Firm, PLC, Brous-sard, LA, for Defendants/Plaintiffs-In-Re-convention/Appellants: Robert H. Rhyne, Jr. Brent Trauth.
    Alan K. Breaud, Timothy W. Basden, Breaud & Meyers, APLC, Lafayette, LA', for Plaintiff/Defendant-In Reconvention/Appellee: Omni Energy Services Corporation.
    Robert J. Burns, Jr., Baton Rouge, LA, for Defendant-In-Reconvention/Appellee: XL Specialty Casualty Company.
    David M. Thorguson, Bourgeois Thorgu-son, LLC, Morgan City, LA, Randy P. Angelle, Boyer, Hebert, Abels & Angelle, LLC, Breaux Bridge, LA, for Defendants-In-Reconvention/Appellees: Edward É. Colson, III, James C. Eckert, Richard C. White, Barry E. Kaufman, Dennis R. Sciotto, Ronald E. Gerevas, Brian J. Re-catto.
    Court composed of SYLVIA R. COOKS, JIMMIE C. PETERS, and JOHN E. CONERY, Judges.
   PETERS, J.

|TIn the second of these three consolidated suits, Robert H. Rhyne, Jr. and Brent Trauth appeal a trial court judgment granting peremptory exceptions of no cause of action, whereby their monetary claims against a number of other parties to this litigation were dismissed. We set forth the factual background in OMNI Energy Services Corp. v. Rhyne, 14-251 (La.App. 3 Cir.10/15/14), 150 So.3d 509, 2014 WL 5151392, and will address this issue in this opinion.

In this appeal, Rhyne and Trauth assert five assignments of error, all of which relate to trial court rulings in Lafayette Parish Suit I:

1. The Trial Court erred when it granted Exceptions of Prescription dismissing all of Rhyne and Trauth’s claims against Omni Directors White, Kaufman, Eckert, and Omni Officer, Recatto;
2. The Trial Court erred when it granted Exceptions of Prescription dismissing all of Rhyne and Trauth’s claims against Directors Sciotto, Colson and Gerevas except claims “outside their capacity” as Officers/Directors;
3. The Trial Court erred when it failed to recognize that the Officer/Director Defendants were solidarity liable with Omni for all of Rhyne/ Trauth’s damages resulting from Omni’s breach of Rhyne and Trauth’s agreements, when Omni’s breach was knowingly, intentionally, and without justification caused by Officer/Director Defendants;
4. Once the Trial Court ruled that the St. Martin Court’s venue analysis was fatally flawed by failing to apply 23:921, the Trial Court erred by then adopting the flawed judgment as to Sciotto, Colson, and Gerevas flowing therefrom. The Trial Court erred by stating, “I am not going to change his (Judge Comeaux’s) ruling”, when it was the Trial Court’s obligation to do so under Land v. Vidrine.
5.The Trial Court erred when it failed to recognize that the parties entered into a Consent Judgment to transfer the St. Martin Case to Lafayette on the basis of forum nonconveniens, and thus Appellees agreed that venue was proper in St. Martin.

1 .OPINION

All of the assignments of error relate to the trial court judgment finding that the claims against all of the director/officer defendants, in their capacity as OMNI directors/officers, had prescribed. Because they are so interwoven, we will address these assignments of error together.

At the outset, we note that in its April 27, 2011 judgment, the St. Martin Parish trial court chose to dismiss the claims at issue rather than to assert its discretion pursuant to La.Code Civ.P. art. 932(B) and transfer them to Lafayette Parish. Once the trial court rendered judgment, the St. Martin Parish Clerk of Court mailed notice of the judgment to all parties on Friday, April 29, 2011. The delay for applying for a new trial is seven days exclusive of legal holidays, and the delay commences to run the day after notice is mailed by the clerk. La.Code Civ.P. art. 1974. Thus, the delay for applying for a new trial commenced to run on Monday, May 2, 2011, and any party wishing to seek a new trial on any part of the trial court’s ruling had until May 10, 2011, in which to do so. With just one day left in the seven-day period, the St. Martin Parish Suit was removed to federal court by Mager and Cove Partners and remained there until it was returned to St. Martin Parish on Friday, May 4, 2012.

After the matter returned to St. Martin Parish, the only relief initially sought by any party to the litigation was sought by Mager, Cove Partners, Sciotto, Colson, Gerevas, and XL Specialties, who filed requests for additional time in which to plead to the original petition of Rhyne and Trauth. No litigant timely filed a | ..¡motion for new trial and a trial court has neither the discretion to extend the new-trial delay nor “the authority to grant a new trial, recall, modify or set aside a judgment when an application for a new trial has not been timely filed.” South La. Bank v. White, 577 So.2d 349, 350 (La.App. 1 Cir.1991); Madere v. St. John the Baptist Parish, 04-1036 (La.App. 5 Cir. 3/1/05), 900 So.2d 73. Furthermore, no litigant sought a supervisory writ to have the venue decision reviewed by a higher court and, as pointed out in Land v. Vidrine, 10-1342, p. 7 (La.3/15/11), 62 So.3d 36, 40, “[f|ailure to timely file a writ application on a venue ruling amounts to a waiver of any objection thereto.” Thus, the April 27, 2011 judgment was a final judgment, and the transfer of the remaining issues to Lafayette Parish while the motions for new trial were still pending had no effect on that finality status.

However, in Land, the supreme court recognized a difference between the finality of a venue judgment for forum purposes and the effect that same judgment might have on prescription or preemption issues. In Land, the trial court, in the Nineteenth Judicial District in East Baton Rouge Parish, granted the defendant’s declinatory exception of venue and, instead of dismissing the plaintiffs’ case, exercised its discretion under La.Code Civ.P. art. 932(B) and transferred it to the Fifteenth Judicial District in Lafayette Parish. Once in Lafayette Parish, the defendant filed an exception of peremption. Applying the “law of the case” doctrine, the trial court in Lafayette Parish concluded that it could not consider the correctness of the East Baton Rouge Parish venue ruling because the plaintiffs had waived any objection to the transfer of the litigation by failing to apply for supervisory writs. Land, 62 So.3d 36. It then granted the peremption exception and dismissed the plaintiffs’ suit on its finding that (1) based on the East Baton RRouge Parish venue judgment and without regard to the correctness thereof, suit had not been timely filed in a court of proper jurisdiction and venue, and (2) the Lafayette Parish filing was untimely on its face. The plaintiffs appealed, and this court affirmed the trial court decision. Land v. Vidrine, 09-1418 (La.App. 3 Cir.4/7/10), 30 So.3d 1188.

In reversing both the trial court and this court, the supreme court affirmed the finality of the East Baton Rouge Parish decision on venue, but reversed the application of the “law of the case” doctrine on the preemption issue, finding that the Lafayette Parish trial court was still required to “make an independent venue ruling for the limited purpose of deciding the exception of preemption.” Land, 62 So.3d at 37. The supreme court explained its decision with regard to the independent ruling required, by noting that “[cjhoice of venue is a gateway consideration that is separate from the merits of a case and addresses only the initial inquiry of where to litigate.” Id. at 39. The supreme court further stated:

In the absence of a legal barrier precluding consideration of the issue, we find the East Baton Rouge Parish trial court’s venue ruling should have been merely presented as evidence in support of the defendant’s exception of preemption, not as a conclusion of law. The Lafayette Parish trial court is required to rule on venue only for purposes of deciding whether the cause of action is still viable; the determination, however, has no practical bearing on the actual choice of forum. In other words, the venue decision, when considered in the context of an exception of preemption, does not alter the location of the current and/or future proceedings of the case. If the Lafayette Parish trial court finds that venue was proper in East Baton Rouge Parish, then it is required to deny the defendant’s exception of preemption and proceed with the trial in Lafayette Parish. Alternatively, if the Lafayette Parish trial court finds that venue was improper in East Baton Rouge, then it is required to continue its analysis of whether the filing in Lafayette Parish was timely. If the case was not timely filed in Lafayette Parish, the exception of preemption must be granted and the case dismissed.

Id. at 42.

|RThe Land case is factually distinguishable from the matter before us in that the East Baton Rouge Parish trial court used its discretion pursuant to La.Code Civ.P. art. 932(B) to transfer the litigation to Lafayette Parish instead of dismissing the claims subject to the venue exception. As previously stated, in the St. Martin Parish Suit, the trial court dismissed the claims at issue without prejudice and that judgment became final long before any effort was made to transfer what was left of that litigation to Lafayette Parish; and, even then, the transfer was based on the doctrine of forum non conveniens and not venue. Still, we find this to be a distinction without a difference as the issue before us is basically the same as that which was before the Lafayette Parish trial court in Land, and, therefore, we must first determine if the trial court performed the analysis required by Land.

The December 21, 2012 reasons for judgment do not cite the Land decision directly, but clearly establish that the trial court in Lafayette Parish Suit I considered the impact of that decision in its analysis. Specifically, the trial court stated that it was “compelled by recent decisions to make an independent determination relating to venue in St. Martin Parish.” Having recognized the need to comply with the mandate set forth in Land, the trial court then stated that with regard to claims asserted against OMNI and based on an evaluation of the available record, it disagreed with the St. Martin Parish trial court’s holding that it did not have venue to consider “properly pled claims under the contract of employment.” (Emphasis added.) The trial court did not comment concerning the St. Martin Parish trial court’s ruling that those claims arising under the Agreement were filed in a court of improper venue.

| fiIn its reasons for judgment, the trial court made the following findings concerning the claims against the directors:

Turning now to the No Cause of Action exceptions filed by the other parties, I grant those motions, in part. The claims for breach, under both the [Agreement] and the employment contract are granted. There is no privity of contract between Rhyne & Trauth and anyone but Omni.
The other claims for tortious interference (if one can call it that) remain. Nevertheless, those claims have prescribed. At best, a 2 year prescriptive period applies. No claim in a proper venue with service of process was perfected within that period.

(Emphasis added.)

However, when the trial court executed a judgment on May 14,. 2013, it granted relief to the directors in their capacity as directors’ for reasons of prescription and not privity of contract. The judgment, as it applies to the issue now before us, reads in pertinent part:

IT IS ORDERED, ADJUDGED AND DECREED that the Peremptory Exceptions of No Cause of Action based upon Peremption, and in the Alternative, Prescription, filed on behalf of Brian J. Recatto, Dennis R. Sciotto, Edward Colson III, James C. Eckert, Richard White, Barry E. Kaufman and Ronald Gerevas are hereby GRANTED and all claims against these parties are DISMISSED with prejudice.

(Emphasis added.)

In analyzing the issue before us, we first note that when there is a conflict between reasons for judgment and a judgment, the judgment will always prevail over the reasons. Perkins v. Willie, 01-821 (La.App. 1 Cir. 2/27/02), 818 So.2d 167.

The burden of proof on the peremptory exception of prescription lies with the party raising, the exception. Allain v. Tripple B Holding, LLC, 13-673 (La.App. 3 Cir. 12/11/13), 128 So.3d 1278. However, if it is apparent from the face of the pleadings that the plaintiffs claims have prescribed, the burden shifts to the |7plaintiff to show otherwise. Id. Appellate courts review the peremptory exception of prescription pursuant to the manifest error standard of review if evidence, either supporting or contradicting, is presented at the hearing on the exception. In re Succ. of Cole, 12-802 (La.App. 3 Cir. 12/26/12), 108 So.3d 240. If no evidence is presented, appellate courts decide whether the finding of the trial court is legally correct or incorrect. Id. While we do recognize that the scope of factual review is manifest error and that the trial court did consider the Land decision in its analysis; and while we could conclude that between the time it issued reasons for judgment and signed the judgment, the trial court merely reevaluated its position on this issue and found that while the issue was 'prescription/preemption and not privity of contract, the result was the same, because we have a complete record before us and in the interest of justice, we choose to perform a de novo review of the decision of the trial court on the prescription/preemption issue.

Generally, “[prescription is interrupted ... when the obligee commences action against the obligor, in a court of competent jurisdiction and venue. If action is commenced in an incompetent court, or in an improper venue, prescription is interrupted only as to a defendant served within the prescriptive period.” La.Civ.Code art. 3462. However, La.R.S. 12:1502 (emphasis added), which specifically provides the various prescriptive periods applicable in an action against an officer or director of a business organization,' depending on the cause of action asserted, provides:

A. The provisions of this Section shall apply to all business organizations formed under the laws of this state and shall be applicable to actions against any officer, director, shareholder, member, manager, general partner, limited partner, managing partner, or other person similarly situated.
|SC. No action for damages against any person described in Subsection A of this Section for an unlawful distribution, return of an unlawful distribution, or for breach of fiduciary duty, including without limitation an action for gross negligence, but excluding any action covered by the provisions of Subsection D of this Section, shall be brought unless it is filed in a court of competent jurisdiction and proper venue within one year from the date of the alleged act, omission, or neglect, or within one year from the date that the alleged act, omission, or neglect is discovered or should have been discovered, but in no event shall an action covered by the provisions of this Subsection be brought more than three years from the date of the alleged act, omission, or neglect.
D. No action for damages against any person listed in Subsection A of this Section for intentional tortious misconduct, or for an intentional breach of a duty of loyalty, or for an intentional unlawful distribution, or for acts or omissions in bad faith, or involving fraud, or a knowing and intentional violation of law, shall be brought unless it is filed in a court of competent jurisdiction and proper venue within two years from the date of the alleged act or omission, or within two years from the date the alleged act or omission is discovered or should have been discovered, but in no event shall an action covered by the provisions of this Subsection be brought more than three years from the date of the alleged act or omission.

Based on the foregoing provisions, prescription is only interrupted as to a claim against an officer or director of a business operation if suit is filed in a court of competent jurisdiction and proper venue within the time period provided for negligent and intentional acts.

The first litigation in this matter was Federal Suit I, which was filed by Rhyne and Trauth on May 1, 2008, or well within the prescriptive periods provided for in La.R.S. 12:1502. When the federal court dismissed this suit on June 23, 2009, the dismissal was specifically without prejudice as to Rhyne and Trauth’s state law claims.

Pursuant to 28 U.S.C. § 1367(a):

[I]n any civil action in which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within issuch original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution.

Considering this statute, and based on the assertions of that petition and the content of the Agreement, we find that the federal court had original jurisdiction over the federal claims asserted in Federal Suit I and supplemental jurisdiction over the state claims also asserted therein. Furthermore, 28 U.S.C. § 1367(c)(3) provides that the federal court “may decline to exercise supplemental jurisdiction over a claim described in subsection (a) if ... the district court has dismissed all claims over which it has original jurisdiction[.]” In such situations, “the decision to entertain or dismiss the pendant state law claims is within the district court’s discretion. Ordinarily, when the federal claims are dismissed before trial, the pendant state claims should be dismissed as well.” Wong v. Stripling, 881 F.2d 200, 204 (5th Cir.1989), overruled. on other grounds by Arana v. Ochsner Health Plan, 338 F.3d 433 (5th Cir.2003) (en banc). Thus, the filing of Federal Suit I interrupted prescription as to Rhyne and Trauth’s breach of contract, wrongful termination, and tort claims against the various defendants, including their state law claims. The fact that the federal court exercised its discretion to dismiss them without prejudice does not act to erase the fact that prescription was interrupted by the filing of the federal lawsuit. Thus, the dismissal of Rhyne and Trauth’s claims without prejudice caused the prescription on their claims to begin to run anew on June 24, 2009, the day following its dismissal.

Rhyne and Trauth then filed the Iberia Parish Suit on November 12, 2009, again raising the same claims against Sciotto, Colson, Gerevas, Eckert, Kaufman, Recatto, and White they had raised in Federal Suit I. All of these claims were dismissed by the Iberia Parish trial court based on the forum-selection language of Article 8.7 of the Agreement. Rhyne and Trauth did not pursue supervisory writ 110relief of the April 27, 2010 judgment, and this judgment is a final judgment. Land, 62 So.3d 36. Assuming this judgment to be correct that the claims were not filed in a court of competent jurisdiction and proper venue, prescription was not interrupted. La.R.S. 12:1502(C) and (D); see also La. Civ.Code art. 3492. Thus, prescription would have continued to run from June 24, 2009, when Federal Suit I was dismissed.

The Iberia Parish Suit has no effect on the prescription issue because the St. Martin Parish Suit was filed on May 6, 2010, or less than one year after Federal Suit I was dismissed. This suit repeated the same claims against the director defendants as had been asserted in both Federal Suit I and the Iberia Parish Suit. The April 26, 2011 improper venue judgment in the St. Martin Parish Suit dismissed all claims against the director defendants for any causes of action arising from activities associated with those positions, leaving only those claims against Sciotto, Colson, and Gerevas for acts purportedly committed outside the scope of their duties as officers and/or directors of OMNI. Again, assuming this judgment to be correct that the claims were not filed in a court of proper venue, prescription was not interrupted pursuant to La.R.S. 12:1502(C) and (D). Thus, prescription would have continued to run from June 24, 2009, when Federal Suit I was dismissed.

The filing by Rhyne and Trauth of the April 17, 2012 reconventional demand in Lafayette Parish Suit I marked the first time all aspects of the litigation were joined in a jurisdiction and venue authorized by the forum-selection language of Article 8.7 of the Agreement. This filing occurred less than one year after the April 26, 2011 judgment in the St. Martin Parish Suit, but more than two years after the June 23, 2009 dismissal of Federal Suit I; and consisted of basically the lósame claims against the individual directors that had been raised in all of the preceding suits.

This time, the trial court initially found that all claims against the defendant directors arising from their duties as directors as well as from any activities outside the scope of their director duties had prescribed. The trial court amended that judgment in the November 10, 2013 judgment on the motion for new trial, filed by Rhyne and Trauth, by reversing its judgment dismissing Sciotto, Colson, and Gere-vas from liability for those claims arising from their activity outside the scope of their director positions.

Rhyne and Trauth assert that the trial court erred in finding that prescription had not been interrupted by the filing of the St. Martin Parish Suit. Specifically, they assert that the forum-selection language of Article 8.7 of the Agreement is not enforceable because the cause of action is one relating to an employment contract and subject to the provisions of La.R.S. 23:921(A)(2), which provides that:

The provisions of every employment contract or agreement, or provisions thereof, by which any foreign or domestic employer or any other person or entity includes a choice of forum clause or choice of law clause in an employee’s contract of employment or collective bargaining agreement, or attempts to enforce either a choice of forum clause or choice of law clause in any civil or administrative action involving an employee, shall be null and void except where the choice of forum clause or choice of law clause is expressly, knowingly, and voluntarily agreed to and ratified by the employee after the occurrence of the incident which is the subject of the civil or administrative action.

Rhyne and Trauth argue that because their claims for relief against the directors are asserted in their capacity as employees of Preheat, the choice of forum clause in the Agreement is null and void. We find no merit in this argument.

The problem with their argument on this issue is that the employment/noncom-petition agreements provide that Rhyne and Trauth’s employment could be terminated without cause, and it provides the severance ^benefits for such a termination. However, while they continue to reference the employment/noncompetition agreements, they do not seek those severance benefits. Instead, they seek to recover from OMNI and the director/officer defendants the remaining compensation due under the Agreement, as represented by the three promissory notes, and damages for breach of that Agreement. The history of the litigation clearly establishes that the Agreement, and not the employment/noncompetition agreements, is the focus of the litigation as it pertains to the director/officer defendants in their capacity as directors/officers. The first filing by Rhyne and Trauth was in the United States District Court for the Western District of Louisiana, a venue specifically authorized by Article 8.7, and both the trial court in the Iberia Parish Suit and the St. Martin Parish Suit recognized that the claims against the defendant directors/officers in their capacity as directors/officers was solely related to the compensation claims arising under the Agreement.

Our de novo review causes us to conclude that the trial court in Lafayette Parish Suit I correctly determined that all of the claims against White, Kaufman, Eckert, Recatto, Sciotto, Colson, and Gerevas, in their capacity as OMNI directors/officers, have prescribed. The initial acts giving rise to these suits occurred on February 8, 2008 and May 9, 2008, respectively, upon Rhyne’s and Trauth’s wrongful termination by OMNI; and February 9, 2008, the date that OMNI breached the Agreement by failing to satisfy the first promissory note. 11sFederal Suit I interrupted prescription on the claims against the directors/officers, but prescription began to run anew on June 24, 2009, the day following the dismissal of that suit. No suit was filed in a jurisdiction of proper venue between that date and April 17, 2012, the day Rhyne and Trauth filed their reconven-tional/third-party demands in Lafayette Parish Suit I. Because more than two years lapsed between the dismissal of Federal Suit I and that filing, any actions against the directors/officers for breach of a fiduciary duty, gross negligence, intentional tortious misconduct, breach of a duty of loyalty, fraud, and/or a knowing and intentional violation of law had prescribed. La.R.S. 12:1502(0 and (D). Accordingly, we find no merit in these assignments of error.

DISPOSITION

For the foregoing reasons, we affirm the trial court judgment granting the exception of no cause of action based on prescription filed by Dennis R. Sciotto, Edward E. Colson, III, and Ronald E. Gerevas, dismissing all claims asserted against them by Robert H. Rhyne, Jr. and Brent Trauth, except those claims for tor-tious interference with contract; and we affirm the trial court judgment granting the exception of no cause of action based on prescription filed by James C. Eckert, Richard C. White, Barry E. Kaufman and Brian J. Recatto, dismissing all claims asserted against them by Robert H. Rhyne, Jr. and Brent Trauth. We assess all costs of this appeal to Robert H. Rhyne, Jr. and Brent Trauth.

AFFIRMED.

      . As previously noted, Rhyne and Trauth asserted intentional tort claims against Sciotto, Colson, and Gerevas for actions they claim occurred outside the scope of their officer/director duties, and these claims remain viable in the trial court because of the favorable venue ruling issued to Rhyne and Trauth in the St. Martin Parish Suit.

      . We need not determine whether the delay period for filing a new trial was interrupted or suspended, because in either case, no motion for new trial was timely filed.

      . The "law of the case” doctrine is a discretionary doctrine by which "courts of appeal generally refuse to reconsider their own rulings of law on a subsequent appeal in the same case.” Land, 62 So.3d at 42.

      . It is important to note that the Lafayette Parish trial judge in Land was the same trial judge in Lafayette Parish Suit I, who rendered the judgment currently on appeal.

      . We note that the supreme court, in the recent case Shelter Mutual Insurance Co. v. Rimkus Consulting Group, Inc. of Louisiana, 13-1977, p. 17 (La.7/1/14), 148 So.3d 871, 874, (quoting Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 13, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972)), held that forum selection clauses are prima facie valid in Louisiana and will be upheld unless enforcement is shown to be "unreasonable and unjust, or that the clause was invalid for such reasons as fraud or overreaching ... [or that] enforcement would contravene a strong public policy of the forum in which suit is brought, whether declared by statute or by judicial decision.”


author: GROSS, C.J.

text:
    Patricia MAHMOOD, Petitioner, v. Wahid MAHMOOD, Respondent.
    No. 4D08-4743.
    District Court of Appeal of Florida, Fourth District.
    Jan. 28, 2009.
    Frank J. Bennardo of Bennardo & Ben-nardo, Boca Raton, for petitioner.
    Christopher Chopin of Law Office of Christopher Chopin, West Palm Beach, for respondent.
   GROSS, C.J.

In this petition for writ of certiorari, the wife in a pending dissolution of marriage proceeding seeks review of a non-final order denying her motion for a hearing under section 39.0139, Florida Statutes (2008), in which she sought to prohibit the husband’s visitation pending the hearing. We hold that the circuit court conducted thorough healings under Chapter 61, Florida Statutes (2008), and that its order was not a departure from the essential requirements of law.

Wahid Mahmood, the husband, filed a petition to dissolve his marriage to Patricia Mahmood. The couple has two sons — a 17 year old and a 15 year old. Following a hearing, a September 8 temporary relief order designated the wife as the primary residential parent and allowed the husband visitation every Tuesday and every other weekend.

On September 30, the wife filed an emergency motion for an order “protecting the minor children from lewd and lascivious molestation.” The motion alleged that the 15 year old refused to visit his father because his father’s cousins, had touched his penis when greeting him; one incident occurred in 2001, the other “five months ago.” The motion said that the mother had contacted the police and the Department of Children and Families, that a sheriffs deputy had taken the boy’s statement, and that the report was under investigation.

On October 1, the husband filed a motion to hold the wife in contempt for denying him visitation on September 27 and September 30.

On October 2, the circuit judge held a hearing on the wife’s emergency motion. The father denied that his cousins had ever been in the apartment when the children were present. He denied any knowledge of the 2001 incident. At the hearing, due to a lack of notice, the trial court refused to consider new allegations that the husband had had inappropriate contact with the 15 year old; it was claimed that at some point the husband had insisted on cleaning the boy’s genital area, even though the child insisted that he could do it himself. In an order issued on October 2, the judge ruled that neither parent could allow the children to be in the presence of the named cousins and that neither parent could touch or clean the children’s genital areas.

On October 8, the wife served an emergency motion to prevent the husband’s overnight visitation. The motion alleged that both boys feared their father, that he had inappropriately touched the boys’ genital areas, and that the boys had refused to go on their October 7 visitation. On the same day, the husband filed an emergency motion for civil contempt based on the missed visitation. The trial court set both motions for hearing for October 31.

On October 21, the wife filed within the dissolution proceeding her motion for a hearing under section 39.0139, which sought (1) the appointment of a guardian ad litem, (2) the prohibition of visitation until the section 39.0139 hearing, and (3) cancellation of the scheduled October 31 hearing. The motion claimed that the wife had reported the husband to a child abuse hotline. Attached to the motion was a sheriffs office offense report. The report indicated that, with respect to the 15 year old, a child abuse data form had been sent to the agency’s crimes against children section. Concerning the 17 year old, the report provided that the boy had stated that his father came into the bathroom while he was taking a shower and asked if the boy would like him to clean him; the boy said no. He reported that when he was between the ages of 8 and 12, his father did clean his private parts. The boy felt uncomfortable about his father wanting to clean him. The detective who prepared the report reclassified the incident with the 17 year old as being unfounded, because the child reported that his father did not touch him and the earlier touching was without criminal intent.

The wife noticed her motion for a section 39.0139 hearing on October 31, at the same time as the previously scheduled emergency motions. The circuit judge refused to entertain the motion for a section 39.0139 hearing due to inadequate notice. The court heard evidence about the children’s refusal to go with their father for scheduled visitation. The hearing was continued until November 4,' so the court could hear from the investigating detective.

On November 4, Detective Hall described his criminal investigation of lewd and lascivious molestation based on the 15 year old’s report that his father had touched him inappropriately. He considered the allegations concerning the 17 year old to be unfounded. Detective Hall had uncovered no corroboration of the alleged incidents, and conceded that he had no credible evidence that would give him probable cause for an arrest. He had conducted a controlled phone call between the 15 year old and his father, but there had been no incriminating disclosure. He believed that the Department was going to close its investigation. The husband gave the detective a statement, where he denied touching the children. The husband’s two cousins also denied the allegations against them. With regard to visitation, the detective thought that the teenage boys were capable of defending themselves, having taken Tae Kwan-Do.

At this point in the hearing, the wife moved the court to consider her section S9.0139 motion. She wanted the trial court to appoint a guardian and suspend visitation. As to the Chapter 61 motions, the court found that the wife did not do all she could have done to carry out the trial court’s visitation provisions. The court decided that the section 39.0139 hearing was unnecessary, since it had already conducted hearings under Chapter 61. Nonetheless, the court appointed a guardian ad litem and agreed to hold another hearing if the guardian requested one. The court refused to suspend the husband’s visitation, reaffirmed the temporary relief order, and ordered the husband to take a child abuse profile test and have a clinical interview with a psychologist.

In a November 20 order confirming the oral ruling, the circuit court stated that the husband had proved by clear and convincing evidence that there was no danger to the teenage boys and that the allegations of abuse levied against the father were untrue. The order appointed a guardian ad litem with special training and indicated another hearing would be set if the guardian requested one. It is from this order that the wife filed her certiorari petition.

Certiorari lies when there is a departure from the essential requirements of law which will materially injure the petitioner throughout the remainder of the proceedings, which cannot be remedied adequately on appeal. See Martin-Johnson, Inc. v. Savage, 509 So.2d 1097 (Fla.1987); Bared & Co., Inc. v. McGuire, 670 So.2d 153 (Fla. 4th DCA 1996). Section 39.0139 is designed to protect children. A court’s failure to apply the statute to protect a child from abuse is reviewable by certiora-ri, since the situation presents the possibility of irreparable harm to the child.

Section 39.0139, the “Keeping Children Safe Act,” is designed to protect children “who have been sexually abused or exploited by a parent or other caregiver.” § 39.0139(2)(b), Fla. Stat. (2008). The Act creates a “presumption of detriment” to a child under enumerated circumstances, § 39.0139(3), Fla. Stat. (2008), and places “additional requirements on judicial determinations related to visitation and other contact.” § 39.0130(2)(b), Fla. Stat. (2008).

One of the circumstances creating a presumption of detriment is that a parent “[h]as been the subject of a report to the child abuse hotline alleging sexual abuse of any child as defined in s. 39.01.” § 39.0139(3)(a)1, Fla. Stat. (2008). In this case, the wife contends that her report to a hotline triggered the presumption under this section, so that the husband may be allowed visitation with the teenagers “only after a hearing and an order by the court that allows the visitation or other contact.” § 39.0139(4), Fla. Stat. (2008). At this hearing, the “court must appoint an attorney ad litem or a guardian ad litem for the child if one has not already been appointed” and may allow visitation only if the accused parent “proves by clear and convincing evidence that the safety, well-being, and physical, mental, and emotional health of the child is not endangered by such visitation or other contact.” § 39.0139(4)(b) & (c), Fla. Stat. (2008).

Certiorari does not lie in this case because section 39.0139 did not apply in this Chapter 61 dissolution of marriage proceeding. The focus of section 39.0139 is to protect children “who are abused, abandoned, or neglected.” § 39.0139(2)(a)l, Fla. Stat. (2008). These are defined terms in section 39.01 which have a meaning specific to Chapter 39 proceedings. See § 39.01(1), (2), & (44), Fla. Stat. (2008). Chapter 39 thus provides an entry mechanism into the court system for children who need protection. Section 39.0139(4) requires an order by “the court” that allows visitation. When “used in” Chapter 39, “[c]ourt” “means the circuit court assigned to exercise jurisdiction under this chapter” “unless otherwise expressly stated.” § 39.01(20), Fla. Stat. (2008) (emphasis supplied). Chapter 39 primarily involves dependency and termination of parental rights proceedings. Thus, a “court” within the meaning of section 39.0139 is a court “assigned” to hear dependency and parental termination cases, not the circuit court in general or a family division of the circuit court primarily assigned to hear Chapter 61 dissolution of marriage cases. The court in this case was a family division of the circuit court, not the division in the Fifteenth Judicial Circuit established to hear a docket of dependency and parental termination cases.

This reading of section 39.0139 makes sense in light of the broad powers given to a court under Chapter 61 to protect children embroiled in a dissolution proceeding. To establish parental responsibility and create a parenting plan, the primary consideration of a family court is “the best interests of the child,” which includes an evaluation of “[ejvidence of domestic violence, sexual violence, child abuse, child abandonment or child neglect, regardless of whether a prior or pending action relating to those issues has been brought.” § 61.13(3)(m), Fla. Stat. (2008). If the court determines that “shared parental responsibility would be detrimental to the child, it may order sole parental responsibility and make such arrangements for time-sharing as specified in the parenting plan as will best protect the child or abused spouse from further harm.” § 61.13(2)(b)2, Fla. Stat. (2008). The Family Law Rules insure that decisions relating to children comply with the due process requirements of notice and an opportunity to be heard. See Fla. Fam. L.R.P. 12.080(a). In addition, family courts routinely hear matters on an emergency basis to protect children. Under Family Law Rule 12.610, a court may enter an ex parte temporary injunction to protect children from the fallout from domestic, repeat, or sexual violence.

Given these broad powers to protect children under Chapter 61 and the Family Law Rules, section 39.0139 should not be read to supplant a due process oriented, comprehensive, balanced approach with provisions that change case dynamics based on a phone call to an abuse hotline. Focusing on the best interests of the teenagers, the circuit court conducted extended hearings under Chapter 61 and found that the husband had proved by clear and convincing evidence that he was not a danger to his teenage boys. The November 20 order was not a departure from the essential requirements of law.

Petition for writ of certiorari denied.

POLEN and DAMOORGIAN, JJ, concur.

      . In a recent article, Judge Sue Robbins pointed out some concerns about having a report to an abuse hotline as the basis for a “presumption of detriment”:
      A report to the abuse hotline requires only that a person "knows, or has reasonable cause to suspect, that a child is abused [§ 39.201(1)(a), Fla. Stat. (2008)]. There are no limitations as to date, and there is no requirement that the parent or caregiver have been an adult when the report was made. There is no requirement that die report be found to have been true, or even that it be subject to a finding of probable cause before the rebuttable presumption arises. A report that was made in the distant past and closed following an investigation with no indicators of abuse nevertheless triggers the application of [section 39.0139].
      Sue Robbins, Florida Statute § 39.0139: Limiting the Risk of Serious Harm to Children, 82 Fla. B.J. 45 (May, 2008).


author: STRINGER, Judge. VILLANTI, Judge,

text:
    FCCI INSURANCE COMPANY, Petitioner, v. NCM OF COLLIER COUNTY, INC., Respondent.
    No. 2D08-4093.
    District Court of Appeal of Florida, Second District.
    Feb. 6, 2009.

      Mary Morris of Morris & Morris, P.A., West Palm Beach, for Petitioner.
    Mark B. Cohn, Naples, for Respondent.
   STRINGER, Judge.

FCCI Insurance Company (“FCCI”) seeks certiorari review of the trial court’s order denying its motion for summary judgment in its action to collect workers’ compensation premiums from defendant NCM of Collier County, Inc. (“NCM”). We conclude that the trial court departed from the essential requirements of the law in denying FCCI’s motion for summary judgment because the trial court was not the proper forum to resolve NCM’s defense to the motion.

In the underlying action, FCCI sued NCM to recover retrospective workers’ compensation premiums due from NCM. FCCI moved for summary judgment claiming that NCM had not challenged the amount of premiums FCCI claims are due by initiating administrative proceedings as required by Florida law. In support of the motion, FCCI attached the affidavit of Alice Arnold, FCCI’s collections supervisor. In the affidavit, Arnold attested to the amount due FCCI for the retrospective premiums, which is $144,696, and the calculation method for the amount.

In opposition to the motion, NCM provided the affidavit of Shawn Fuentes, NCM’s chief financial officer. In the affidavit, Fuentes attested that “NCM is not indebted to FCCI for a balance of $144,696 nor are any of the many iterations of the amount due which FCCI has stated from time to time over the last year accurate as to the amount of premium due.” Specifically, Fuentes asserted that (1) “[a]ll of the calculations of premiums referenced in Arnold’s affidavit are wrong because they are based on an incorrect payroll amount ... and a consequent incorrect ‘standard premium,’” (2) FCCI had agreed to reduce the premium amount in response to NCM’s information that the losses for the 2005 policy were overstated, and (3) the premium calculations are based on loss reserves that were arbitrarily and erroneously set by FCCI. The trial court denied FCCI’s motion for summary judgment, finding that “genuine issues of material fact exist that prevent the Court from entering a judgment as a matter of law in favor of the moving party.”

On appeal, FCCI argues that the court departed from the essential requirements in denying its motion for summary judgment because the court lacked jurisdiction to rule on a challenge to its premium calculations. FCCI argues that an insured that has a dispute with its carrier regarding the computation of retrospective premiums must avail itself of the administrative dispute resolution and appeals process under section 627.371, Florida Statutes (2006). We agree and grant FCCI’s petition for writ of certiorari on this basis.

A party challenging the good faith calculation of retrospective workers’ compensation premiums must pursue such a challenge in an administrative forum. Am. Home Assurance Co. v. Phineas Corp., 347 F.Supp.2d 1231 (M.D.Fla.2004). Thus, an insurer’s motion for summary judgment should be granted in an action to collect retrospective workers’ compensation premiums when the insured defends against the motion based on a challenge to the good faith calculation of the premiums but has not exhausted its administrative remedies pursuant to section 627.371. Id. at 1236-37. In this case, NCM has defended against FCCI’s motion for sum-mai’y judgment based on a challenge to FCCI’s good faith calculation of the final premiums. NCM has not exhausted its administrative remedies but is attempting to challenge FCCI’s calculations in the trial court. Accordingly, FCCI was entitled to a summary judgment because the trial court is not the proper forum for NCM’s challenge to FCCI’s premium calculations.

NCM argues that the facts of this case are indistinguishable from those in Elite II v. American Casualty Co. of Reading, Pennsylvania, 2006 WL 1319540 (M.D.Fla.2006) (unpublished decision), in which the court declined to dismiss an action concerning the computation of worker’s compensation premiums for failure to exhaust administrative remedies. We find Elite II to be distinguishable from this case, and we are not persuaded that Elite II requires a departure from the general rule requiring an insured to challenge the good faith calculation of retrospective workers’ compensation insurance premiums in an administrative forum.

In Elite II, the insured filed an action for a declaratory judgment on the right to premium credits under the Florida Contracting Classification Premium Adjustment Program (“FCCPAP”), monetary damages, punitive damages, and attorney’s fees. Id. at *1. The insurer filed a motion to dismiss for failure to exhaust administrative remedies under section 627.371, arguing that challenges to the calculation of the insurance rate must be pursued in the administrative forum. The insured argued that the case did not concern the calculation of rates but the knowing refusal to refund a premium overpayment. The insured argued that its civil action was authorized by statute because the violation was done in bad faith.

The court denied the motion to dismiss, finding that “[ajlthough this case is about the total premiums due for the policies issued to [the insured], [the insured] is not challenging alleged improper classifications, or the rates on which the premium is based.” Id. at *2. The court noted that the insured was actually seeking a declaration that pursuant to the terms of the insurance policy, the insurer must apply the FCCPAP credit when calculating the insurance premiums. Because the resolution of the case would turn on a construction of the insurance policies, the trial court was the appropriate forum.

Elite II is distinguishable from this case in two manners. First, Elite II deals with the application of a credit in calculating the final insurance premiums, while this case concerns the actual basis for the calculation of the final premiums. Unlike in Elite II, a construction of the insurance policies in this case will not resolve NCM’s challenges to the calculation of the final insurance premiums. Instead, it will be necessary to review FCCI’s audit of NCM to resolve the issue. Second, Elite II deals with an allegation of a bad faith refusal to refund a premium overpayment, while this case did not contain any allegations of bad faith.

“Certiorari relief is appropriate where a party has failed to first exhaust his or her administrative remedies [under section 627.371].” See Progressive Express Ins. Co. v. Reaume, 937 So.2d 1120, 1123 (Fla. 2d DCA 2006). Because NCM had a legal obligation to exhaust its administrative remedies and failed to do so, the trial court departed from the essential requirements of the law in denying FCCI’s motion for summary judgment. See Metro. Dade County v. Recchi Am., Inc., 734 So.2d 1123, 1125 (Fla. 3d DCA 1999) (holding that allowing parties to pursue their actions in trial court constitutes a departure from the essential requirements of the law when there is a legal obligation to exhaust administrative remedies). We therefore grant FCCI’s petition for writ of certiorari and quash the order of the trial court with directions for the court to grant FCCI’s motion for summary judgment.

Petition granted.

NORTHCUTT, C.J., Concurs.

VILLANTI, J., Concurs specially.

VILLANTI, Judge,

Specially concurring.

I concur in the result in this case because I believe it is compelled by the supreme court’s decision in Florida Welding & Erection Service, Inc. v. American Mutual Insurance Co. of Boston, 285 So.2d 386 (Fla.1973). In Florida Welding, the supreme court noted that “[t]he matter of the actual application of this ... Tate data’ to arrive at the premium charged! ] appears to have an adequate basis for administrative review under ... s. 627.371.... ” Id. at 389. Here, NCM is challenging FCCI’s application of the “rate data” to arrive at the premium charged. Pursuant to Florida. Welding, this challenge should have first been raised administratively under section 627.371.

While it is true that section 627.371(1) provides that a party aggrieved by the rates charged “may file a written complaint” with the administrative agency, the supreme court has held that “[w]here an administrative remedy is provided by statute, relief must be sought by exhausting this remedy before the courts will act.” Id. at 390 (emphasis added); see also Odham v. Foremost Dairies, Inc., 128 So.2d 586, 593 (Fla.1961); Hennessy v. City of Fort Lauderdale, 101 So.2d 176, 178 (Fla. 2d DCA 1958). Thus, because this administrative remedy existed, NCM was required to exhaust that remedy before raising its claims in a judicial forum, which it did not do. Accordingly, under the binding authority of Florida Welding, the trial court departed from the essential requirements of the law by permitting the claims raised in NCM’s affirmative defenses to go forward.

But for Florida Welding, however, I would not be inclined to find that the trial court departed from the essential requirements of the law by failing to follow Píti-mas. Planeas is a federal district court case in which the affirmative defenses raised by the insured were factually and legally distinguishable from those raised by NCM in this case. Further, while Florida Welding was binding on the trial court, Planeas is not. Therefore, while I concur in the result, I find the majority’s reliance on Pítimas to find a departure from the essential requirements of the law inexpedient.