author: GARRETT, J. BROWN, Chief Judge,

text:
    Jessyca LEWIS, Plaintiff-Appellee v. Jibri COLEMAN, Keldrick Verson Robinson, Progressive Insurance, Permanent General Assurance Corporation & Safeway Insurance, Defendants-Appellants.
    No. 48,173-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 26, 2013.
    Rehearing Denied Aug. 1, 2013.

      Tracy L. Oakley, Ruston, LA, for Defendant-Appellant, Safeway Ins. Co.
    Damon D. Kervin, for Plaintiff-Appellee, Jessyca Lewis.
    Oliver & Way, Lafayette, LA, by Kenny L. Oliver, for Defendant-Appellee, Jibri Coleman.
    Hebbler & Giordano, L.L.C., Metairie, LA, by Tasha W. Hebert, Pamela B. Gautier, Charles V. Giordano, for Defendants Appellee, Permanent General Assurance Corp.
    Keldrick Verson Robinson, In Proper Person.
    Before BROWN, WILLIAMS and GARRETT, JJ.
   GARRETT, J.

| Safeway Insurance Company appeals from a trial court ruling which granted a motion for summary judgment in favor of Permanent General Assurance Corporation. For the following reasons, we affirm.

FACTS

On March 12, 2011, Jessyca Lewis was a passenger in a 1996 Toyota Avalon owned by Margaret Wilson and driven by Jibri Coleman. Keldrick Robinson was driving a 1989 Cadillac. There was a collision between the two vehicles. Lewis filed suit against Coleman; Permanent General Assurance Corporation (“Permanent”), the alleged insurer of Wilson and Coleman; Robinson; Progressive Paloverde (“Progressive”), the insurer of the vehicle driven by Robinson; and Safeway Insurance Company, the uninsured/underinsured motorist insurance carrier for Lewis. Lewis and Progressive reached a settlement and the matter between them was dismissed with prejudice.

Permanent filed a motion for summary judgment, contending that Wilson had failed to pay the policy premiums for insurance on the vehicle Coleman was driving at the time of the accident and that the policy had been cancelled on January 2, 2011.

Permanent attached to its original motion for summary judgment an affidavit from a company representative attesting that there was no policy in effect on the date of the accident; a “Notice of Cancellation,” dated December 21, 2010; proof of the mailing of this notice; and a “Notice of Lapse” dated January 18, 2011. The “Notice of Cancellation” stated that a 12payment of $209.64 was due before January 2, 2011. The cancellation date of the policy was listed as 12:01 a.m. on January 2, 2011. The notice provided:

NOTICE OF CANCELLATION
Your policy with Permanent General Assurance Corporation is cancelled due to non-payment of premium on the cancellation date and time shown above. This is the only notice of cancellation that you will receive. You can prevent cancellation by making your payment before 12:01 AM on the cancellation date. If you have made your payment, please disregard this notice. A check returned by your bank for any reason will not be considered valid premium payment to avoid cancellation.

Wilson failed to tender payment prior to the cancellation date and there is no evidence in the record to show that any payment other than the down payment made on December 2, 2010, was ever tendered by Wilson.

On January 13, 2011, Permanent also sent Wilson a “Notice of Lapse,” advising that the policy had been cancelled on January 2, 2011. The notice of lapse stated:

You are hereby given notice of the lapse of the above policy.
Cancellation reason: NON-PAYMENT CANCELLATION
The policy mentioned above has can-celled as of 12:01 A.M. on the cancellation date shown above, in accordance with the terms and conditions of the policy.

This document advised that the insurance carrier was required to report the matter to the Department of Public Safety and Corrections and that registration privileges could be revoked.

Permanent argued that these documents established that it complied with all legal requirements for cancellation of the policy and there was no coverage on the date of the accident, March 12, 2011. Because there was no [ coverage, Permanent contended that summary judgment should be granted in its favor.

Safeway filed an opposition to the motion for summary judgment, arguing that Wilson did not receive proper notice of the cancellation of the policy for nonpayment and, therefore, Permanent still provided coverage for the vehicle. The exhibits attached to the opposition included, inter alia, the insurance policy with the declaration page, a declaration page after Wilson added a third vehicle, the schedule of payments, the down payment, coverage rates, proof of mailing of notices, and the notice of cancellation to Wilson.

The policy application shows that Wilson insured two cars on December 2, 2010. Her premium for these two vehicles for six months was $744.00. On December 2, 2010, she made a 20 percent down payment of $148.80, which she paid with a credit card. Permanent produced a payment schedule for Wilson, showing that she was to make five payments of $125.04. The payment schedule listed the “cancel dates” as January 2, 2011; February 2, 2011; March 2, 2011; April 2, 2011; and May 2, 2011. |4The payment schedule specified that:

If the payment is not received before the cancel date, the policy will terminate.
If you fail to pay before the cancellation date, you may be eligible to make a payment to reinstate your policy. However, there will be no coverage for losses occurring between the cancel and reinstate date.

The insurance policy stated that Permanent could cancel for nonpayment of the premium. The policy provided:

a. Nonpayment of premium means “your” failure to discharge when due any of “your” obligations in connection with the payment of premiums on this policy, or any installment of the premium, regardless of whether the premium is payable directly to “us” or “our” agent, or indirectly under any premium finance plan or extension of credit; or
b. At any time during the policy term if the cancellation is for nonpayment of premium, “we” may cancel the policy by mailing or delivering 10 days written notice of cancellation to “you” at the address shown on the declarations page and to any loss payee shown on the declarations page.

According to Safeway, Wilson’s premium was due on January 2, 2011, and until Wilson was actually in default, Permanent could not issue a valid notice of cancellation before the premium was due. Safeway contended that the notice of cancellation issued in this case was actually a notice of intent to cancel. Safeway argued that Louisiana law prohibits the issuance of a prospective notice of cancellation.

Permanent responded to Safeway’s opposition by arguing that (1) Safeway lacked standing to contest the cancellation, and (2) that the notice of cancellation was valid under Louisiana law.

|fiOn August 9, 2012, a hearing was held on the motion for summary judgment. The trial court found that Safeway had standing to oppose the motion for summary judgment because it had a financial interest in the outcome of the dispute. The trial court observed that the notice of cancellation was “a little bit unusual” because it was sent before the premium was due, but the notice was not ambiguous. The trial court stated that, even if the notice of cancellation was not an effective termination notice, the notice of lapse was sufficient to notify the customer that “they no longer have insurance.” The court observed that the accident occurred approximately 2½ months after the policy terminated and it would be unreasonable to extend the policy for that period of time. The trial court granted summary judgment in favor of Permanent. A judgment to that effect was signed on August 31, 2012. Safeway appealed.

NOTICE OF CANCELLATION

Safeway argues that the trial court erred in finding that the policy was properly cancelled for nonpayment and in finding that the insurer could issue a valid notice of cancellation for nonpayment prior to the date that the premium was due. These arguments have no merit based upon prior cases |fifrom this circuit and the facts and circumstances applicable to this particular case.

Summary Judgment Law

Summary judgment procedure is favored and is designed to secure the just, speedy, and inexpensive determination of actions. La. C.C.P. art. 966(A). A motion for summary judgment is a procedural device used when there is no genuine issue of material fact for all or part of the relief prayed for by a litigant. Samaha v. Rau, 2007-1726 (La.2/26/08), 977 So.2d 880. Summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B).

The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to provide factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. La. C.C. art. 966(C)(2). An adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or other appropriate summary judgment evidence, must set forth specific facts |7showing that there is a genuine issue for trial. La. C.C. art. 967; Samaha v. Rau, supra.

Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Schroeder v. Board of Sup’rs of La. State Univ., 591 So.2d 342 (La.1991).

Notice of Cancellation Principles

La. R.S. 22:1266 regulates notices of cancellation for nonpayment of auto insurance premiums. The statute provides in pertinent part:

A. As used in this Part:
(1) “Policy” means an automobile liability ... policy, ... delivered or issued for delivery in this state, ... insuring a single individual or husband and wife resident of the same household, as named insured, and under which the insured vehicles therein designated are of the following types only:
(а) A private passenger vehicle that is not used as a public or livery conveyance for passengers, nor rented to others.
(б) “Nonpayment of premium” means failure of the named insured to discharge when due any of his obligations in connection with the payment of premiums on a policy, or any installment of such premium, whether the premium is payable directly to the insurer or its agent or indirectly under any premium finance plan or extension of credit.
B. (1) A notice of cancellation of a policy shall be effective only if it is based on one or more of the following reasons: (a) Nonpayment of premium.
_k- • • •
D. (1) No notice of cancellation of a policy to which Subsection B or C of this Section applies shall be effective unless mailed by certified mail or delivered by the insurer to the named insured at least thirty days prior to the effective date of cancellation; however, when cancellation is for nonpayment of premium at least ten days notice of cancellation accompanied by the reason shall be given. In the event of nonpayment of premiums for a binder, a ten-day notice of cancellation shall be required before the cancellation shall be effective. Notice of cancellation for nonpayment of premiums shall not be required to be sent by certified mail.
F. Proof of mailing of notice of cancellation, or of intention not to renew or of reasons for cancellation, to the named insured at the address shown in the policy, shall be sufficient proof of notice.
J. Where written notice of cancellation or nonrenewal is required and the insurer elects to mail the notice, the running of the time period between the date of mailing and the effective date of termination of coverage shall commence upon the date of mailing. [Emphasis supplied.]

It is well settled that an automobile liability insurer has the burden of proving that the policy has been cancelled prior to the date of the accident giving rise to a claim under the policy, and the insurer must show facts which constitute positive and unambiguous proof of understanding of cancellation of the policy. Johnson v. Williams, 35,986 (La.App.2d Cir.9/18/02), 828 So.2d 90. The purpose of notice of cancellation to the insured is to make known to the insured that his policy is being terminated and to afford him sufficient time to obtain other insurance. Cockern v. Government Employees Ins. Co., 415 So.2d 330 (La.App. 2d Cir.1982).

| A demand for payment of balance due rather than an unequivocal notice of cancellation is insufficient to serve as a notice of cancellation. Hemperly v. Aetna Cas. & Sur. Co., 516 So.2d 1202 (La.App. 2d Cir.1987). Notice of intent to cancel for nonpayment is not the same as the notice of cancellation for nonpayment of a premium required by statute. See Hemperly v. Aetna Cas. & Sur. Co., supra; Carroll v. State Farm Mut. Auto. Ins. Co., 419 So.2d 57 (La.App. 2d Cir.1982). A notice of intent to cancel is nothing more than a demand for payment whereas a notice of cancellation puts an insured on notice that the policy will be cancelled. Dairyland Ins. Co. v. Marks, 468 So.2d 841 (La.App. 1st Cir.1985); Hemperly v. Aetna Cas. & Sur. Co., supra.

Discussion

According to Safeway, Louisiana law prohibits the prospective notice of cancellation. It asserts that such a notice must be construed as merely a notice of intent to cancel and does not satisfy the statutory notice requirements. Safeway argues that, if the premium was not paid on the date due, Permanent was required to give Wilson 10 days’ notice of cancellation after the due date. Safeway maintains that, under the statutory scheme for cancellation of policies, the date the premium is due and the date the policy is subject to cancellation can never be the same date.

Our research indicates that Safeway’s position is not supported by the current case law from this circuit. There appears to be a split between the circuits as to whether a notice of cancellation for nonpayment of an auto insurance premium can be made prior to the date that the premium is due. | mThe second and fourth circuits have found that such a notice is valid. The first and fifth circuits have opined otherwise. However, it is important to note that each case has been decided upon its own unique facts and circumstances and the wording used in the notices sent out by the insurer. The documentation sent out by the insurance company must be carefully scrutinized and is critical in determining the appropriate outcome. In this particular case, the sequence of events was that Permanent sent out an invoice for payment on December 13, 2010. Thereafter, on December 21, 2010, the “notice of cancellation” was sent out. The record is clear that, in this case, the document sent on December 21, 2010, was not a bill, as the bill was sent out on December 13, 2010. The record is also clear that the notice of cancellation was not ambiguous. The real issue is the timing of the notice.

Second and Fourth Circuit Jurisprudence

In Folds v. Protective Cas. Ins. Co., 26,323 (La.App.2d Cir.12/7/94), 647 So.2d 1215, the vehicle owner purchased insurance on May 15, 1986. The policy had various policy periods of approximately 30 days with the final period from August 21 to September 21, 1986. On September 5, 1986, the insurer sent a notice of cancellation, informing the insured that the policy had been cancelled for nonpayment of the premium, effective September 21, 1986, at 12:01. The notice indicated that payment was due on September 21, 1986. The insured did not pay the premium for this policy period until September 24, 1986. On September 23,1986, one day before the payment was made, the insured allowed someone to drive her [ nvehicle. The driver was involved in an accident in which the plaintiff was injured.

This court, in an opinion authored by Judge Stewart, held that the insurance policy was properly cancelled prior to the accident and there was no coverage. The notice was not merely a demand for payment or a notice of intent to cancel, but was a notice of cancellation mailed to the insured, giving at least 10 days’ notice of cancellation as required by statute. Notably, the notice of cancellation for nonpayment of a premium was given prior to the date the premium was due and the cancellation was effective on the date the premium was due.

Later, this court decided Johnson v. Williams, supra, authored by Judge Williams. In that case, the insured’s son was involved in an auto accident on April 6, 1997, while driving a vehicle owned by the insured. Omni, the insurer, filed a motion for summary judgment claiming that the insurance policy was cancelled prior to the accident for nonpayment of the premium. The motion for summary judgment was granted by the trial court. This court reversed, finding that there was a question of fact as to a collection letter sent to the insured on April 2,1997. After a trial on the merits, the trial court found that insurance coverage existed. This court then reversed the trial court decision, finding that there was no insurance coverage.

The insured made only one installment payment on the insurance premium by check which was returned for insufficient funds. A notice of cancellation was sent to the insured on February 11, 1997, informing him |12that the insurance would be cancelled effective February 23,1997. We found that the notice language was clear, unequivocal, and unambiguous and the cancellation was timely and valid.

The fourth circuit has followed the second circuit. In Narcisse v. Evans, 2001-1092 (La.App.4th Cir.1/16/02), 807 So.2d 339, Evans, the defendant, had a policy of auto insurance with Clarendon. The policy period was from June 29, 1995, through December 29, 1995. The premium was to be paid in five installments due on the 19th of each month beginning in July. On July 10, 1995, Clarendon sent a notice to Evans informing him that his premium was due on July 19, 1995, and would be cancelled effective July 30, 1995, at 12:01 a.m. if not paid. Evans received the notice and did not pay the premium.

On August 5, 1995, Evans had an auto accident and struck a vehicle occupied by the plaintiffs. The plaintiffs filed suit and Clarendon filed a motion for summary judgment alleging that it did not provide coverage for the accident. The fourth circuit affirmed the trial court ruling granting summary judgment in favor of Clarendon. The fourth circuit concluded that the notice sent to Evans was an unambiguous and unequivocal notice of cancellation and the notice complied with the applicable statute. Therefore, Clarendon did not provide coverage for the accident.

First and Fifth Circuit Jurisprudence

Safeway mainly relies on State Farm Mut. Auto. Ins. Co. v. Villneuve, 98-2421 (LaA.pp.1st Cir.12/28/99), 747 So.2d 777, writ denied, 2000-0273 (La.3/24/00), 758 So.2d 156, in support of its position. In Villneuve, | lsReliance issued a policy of auto insurance to Villneuve. The policy period was January 21, 1995, through July 20, 1995. The premiums were payable in six monthly installments. Villneuve failed to pay the premium due on February 20, resulting in cancellation of the policy. The policy was reinstated March 11, upon payment of the premium. He paid the premium due on April 8, and another premium was due on May 8, 1995, to cover the period from May 8 through June 7, 1995. On April 18, 1995, 20 days before the May 8 premium was due, Reliance mailed a premium due notice to Villneuve which stated that the policy would be cancelled for nonpayment of premium at 12:01 a.m. on May 8, 1995, if not paid by the due date. Villneuve did not pay the premium due on May 8 until May 30,1995. On May 24, 1995, Villneuve was involved in an auto accident.

Reliance filed a motion for summary judgment, claiming that there was no coverage for the accident, arguing that the policy was cancelled on May 8, 1995, and reinstated on May 30, but the reinstatement was not retroactive. The trial court denied the motion, finding that the notice sent to Villneuve did not comply with the 10-day notice requirement because “notice could not be sent before the premium payment became due.” The trial court reasoned that the notice statute contemplates a minimum 10-day grace period between the premium due date and the effective date of any cancellation.

The first circuit affirmed, reasoning that the notice conditioned cancellation of the policy on nonpayment of the premium. The first circuit found that the notice issued by Reliance lacked unequivocal cancellation | ^language. The first circuit found that the language was similar to that in Dairyland Ins. Co. v. Marks, supra, and concluded that the notice given by Reliance was merely a demand for payment, specifying that the policy would be cancelled if the premium was not paid.

Although not cited by Safeway, our research reveals another recent case decided by the first circuit which follows Vill-neuve. In Wiley v. Cornerstone Nat. Ins. Co., 2012-0909 (La.App.1st Cir.4/25/13), 2013 WL 1792512, an unpublished case, the plaintiffs were involved in an auto accident on May 13, 2009. They sued the driver of the other vehicle involved in the accident and her insurer, Cornerstone. Cornerstone filed a motion for summary judgment, asserting that its policy did not provide coverage for the accident because it was cancelled on April 11, 2009, for nonpayment of the premium. Cornerstone argued that on March 13, 2009, it sent a premium due notice to its insured informing her that a payment was due on April 2, 2009, and that the policy would be cancelled on April 11, 2009, if the payment was not postmarked by that date. The bottom of the [1spremium due notice contained language concerning “Notice of Intent to Cancel for Non-Payment of Premium.” The insured did not pay the premium.

The first circuit followed Villneuve and Travelers Ins. Co. v. Jenkins, 285 So.2d 839 (La.App. 1st Cir.1973), finding that the notice was a notice of intent to cancel and not a notice of cancellation as required by statute. The first circuit found that Cornerstone’s notice was not an unconditional, unequivocal notice of cancellation as required by statute and by Jenkins and Villneuve. The court reasoned that Cornerstone’s notice did not initiate the cancellation of the policy. Rather, the company was sending its insured a bill for a payment due in the future. The court noted that at the time the notice was sent, there was no outstanding premium due and the nonpayment of the premium had not yet occurred. The first circuit found that the Cornerstone notice, combined with a premium invoice and conditioned on the nonpayment of the premium by the due date, constituted a demand for payment and not an unequivocal notice of cancellation.

hfiThe first circuit also observed that the purpose of La. R.S. 22:1266(D) is to protect the insured against the danger of losing insurance coverage through mere neglect to pay a premium by ensuring that the insured is notified that a policy is being terminated in sufficient time to obtain insurance coverage. The court stated that allowing an insurer to satisfy La. R.S. 22:1266(D)’s strict requirements by merely sending notices of cancellation for nonpayment in every premium invoice, at a time when the policy premiums are current and there is not yet a basis for cancellation, would defeat the purpose of La. R.S. 22:1266(D) and render its protections meaningless. Notably, the first circuit focused on the notice given before the payment was due and did not discuss the obvious fact that the notice sent in that case was clearly labeled a “notice of intent to cancel,” rather than a notice of cancellation.

Although not cited by Safeway, our research also indicates that the fifth circuit has followed the reasoning of the first circuit. In Direct General Ins. Co. of La. v. Mongrue, 04-248 (La.App.5th Cir.8/31/04), 882 So.2d 620, Direct General’s insured was involved in an auto accident on April 28, 2001. The other driver was insured by Southern Farm. Southern Farm filed a motion for summary judgment claiming that the insurance policy between Southern Farm and its insured was cancelled for nonpayment of the premium before the date of the accident. According to Southern Farm, a notice of cancellation of the policy was sent to its insured on March 14, 2001, stating that the cancellation date was March 29, 2001, 117and the account due date was also March 29, 2001. Direct General argued that Southern Farm failed to prove that the nonpayment occurred prior to the cancellation date because the due date for payment and the cancellation date were the same, March 29, 2001. Direct General argued that this created ambiguity in the notice. A prior invoice added to the confusion and internal documentation submitted by Southern Farm showed that the notice mailed on March 14 was an expiration notice and not a cancellation notice. Based upon these ambiguities, the fifth circuit found that Southern Farm failed to prove that the policy was properly can-celled prior to the date of the accident.

Analysis

Based upon the prior decisions in this circuit in Folds v. Protective Cas. Ins. Co., supra, and Johnson v. Williams, supra, and the fact that, in this case, the notice of cancellation was clear and unambiguous, we reject Safeway’s argument that a notice of cancellation can never be given before the premium is due. The statutory scheme of La. R.S. 22:1266 does not support such a position. The statute requires nonpayment of a premium, which means the failure of the insured to discharge when due any of his obligations in connection with the payment of premiums on a policy, or any installment of such premium, whether the premium is payable directly to the insurer or its agent or indirectly under any premium finance plan or extension of credit. The statute requires that when cancellation is for nonpayment of premium, at least 10 days’ notice of cancellation, [ 1saccompanied by the reason, shall be given. There is no requirement in the statute that the premium be in default when the notice is sent.

The relevant features in determining whether a notice of cancellation is valid are that it be given 10 days before cancellation and that the notice language be clear, unequivocal and unambiguous.

Language providing the insured with the opportunity to prevent cancellation of his policy does not necessarily constitute either a mere demand for payment or a notice of intent to cancel where the notice itself includes clear and unequivocal language giving notice to the insured that the policy has been cancelled effective on the cancellation date set forth in the notice. Hemperly v. Aetna Cas. & Sur. Co., supra.

The application made by the insured in this case and the payment schedule clearly specified that the policy would be cancelled on the date the payments were due if they were not made. Further, Permanent mailed a separate invoice to Wilson on December 13, 2010, with a payment voucher to be returned with her payment of $209.64. This document provided that, “In addition to this invoice, a notice of cancellation will be mailed to you at least ten (10) days before your policy cancels.” Accordingly, this shows that Wilson received an invoice for her insurance premium prior to receiving the notice of cancellation. The notice of cancellation was not a mere demand for payment or a notice of intent to cancel as argued by Safeway.

Here, as in Folds v. Protective Cas. Ins. Co., supra, and Johnson v. Williams, supra, the language of notice of cancellation was clear, 11S)unequivocal and unambiguous. It conveyed the cancellation of the policy for nonpayment of the premium and was not simply an intent to cancel the policy. The notice of cancellation gave the insured 10 days’ notice of the cancellation accompanied by the reason for cancellation. There is no issue concerning receipt by the insured of the notice of cancellation. The accident in this case occurred more than two months after the premium was due. Permanent has carried its burden of proving that the insurance policy was cancelled prior to the date of the accident. The trial court correctly found that the notice of cancellation was not ambiguous and was valid and timely and that Permanent did not provide coverage for this accident.

NOTICE OF LAPSE

Safeway contends that the trial court erred in finding that the notice of lapse in coverage cured any lack of statutory notice of cancellation. This assignment of error is moot because we find that the notice of cancellation in this case was made in accordance with the applicable statutory requirements and prior jurisprudence from this circuit.

CONCLUSION

For the reasons stated above, we affirm the trial court ruling granting summary judgment in favor of Permanent General Assurance Corporation and rejecting the demands of Safeway Insurance Company against it. All costs in this court are assessed to Safeway.

AFFIRMED.

BROWN, Chief Judge, dissents with written reasons.

BROWN, Chief Judge,

dissents.

| {There was no outstanding premium balance at the time of the notice of cancellation. This notice was not a positive notice of cancellation that is required by La. R.S. 22:636.1. No matter how you dress it up, it was simply a “notice of intent” to cancel if the premium was not paid timely.

It is for the legislature to change the law not the courts.

APPLICATION FOR REHEARING

Before BROWN, C.J., and WILLIAMS, CARAWAY, MOORE and GARRETT, JJ.

Rehearing denied.

BROWN, C.J., would grant rehearing.

J^EXHIBIT A

      . A copy of the "Notice of Cancellation” is attached as an appendix to this opinion for ready reference.

      . The brief in support of the original motion for summary judgment filed by Permanent on March 8, 2012, alleged that the notice of cancellation was sent after her premium payment had not been received. Safeway’s attorney questioned this after reviewing the notice relied on by Permanent. Safeway engaged in additional discovery due to issues concerning the sequence of events. After receiving the additional discovery, Safeway filed its opposition to the motion for summary judgment on May 8, 2012. The documents produced in discovery were attached to Safeway's opposition and were made a part of the record.

      . On December 8, 2010, Wilson added a third vehicle to the policy for an additional premium.

      . The attorneys for the plaintiff and Coleman did not file any oppositions to the motion for summary judgment filed by Permanent. There is no indication in the record that Wilson ever questioned or contested the cancellation of the policy. At the hearing on the motion for summary judgment, the only participants were Permanent and Safeway. They did not provide the lower court with all of the authorities they are now citing to this court or the cases found by this court. It appears that this case has “evolved” somewhat as the legal issues have been fleshed out and additional documents were produced during discovery.

      . In rendering its ruling, the trial court did not expressly note for that record that an invoice demanding payment had also been sent out on December 13, 2010. That invoice provided, "In addition to this invoice, a notice of cancellation will be mailed to you at least ten (10) days before your policy cancels.”

      . This provision was previously found in La. R.S. 22:636.1. La. Acts 2008, No. 415, § 1, amended and reenacted Title 22 of the Louisiana Revised Statutes of 1950, the Louisiana Insurance Code, and directed the Louisiana State Law Institute to redesignate the provisions of Title 22, formerly comprising La. R.S. 22:1 to 22:3311, into a new format and numbering scheme comprised of La. R.S. 22:1 to 22:2371, without changing the substance of the provisions. The Act became effective on January 1, 2009.

      . In Dairyland Ins. Co. v. Marks, supra, the defendant had insurance with State Farm and financed the premiums with a finance company. He was to pay the premium on the 11th of each month. He paid the November premium on November 18, 1981, and the December premium on December 11, 1981. The payments were accepted. The defendant was sent a notice that the policy would be can-celled on December 15, 1981, if payment was not received within 10 days of the notice. The defendant caused a rear-end accident on December 18, 1981. State Farm argued that the policy was cancelled on December 15, 1981, three days before the accident. The first circuit found that the notice was a notice of intent to cancel and not a notice of cancellation. Because there was no notice of cancellation, the policy was in effect when the accident occurred. However, the first circuit also noted that the defendant had, in fact, paid the premium.

      . La. C.C.P. art. 2168 provides:
      A. The unpublished opinions of the supreme court and the courts of appeal shall be posted by such courts on the Internet websites of such courts.
      B. Opinions posted as required in this Article may be cited as authority and, if cited, shall be cited by use of the case name and number assigned by the posting court.

      . In Travelers Ins. Co. v. Jenkins, supra, Southern Farm Bureau Insurance argued that it did not provide coverage for a vehicle involved in an accident on July 19, 1969. The owner of the vehicle had an insurance policy with Southern which terminated on February 5, 1969. On February 2, 1969, Southern sent tile insured a notice that the renewal premium was due and coverage would cease on March 8, 1969, if the premium was not paid. On March 19, 1969, Southern sent a letter to the insured, advising that coverage ceased on March 8, 1969. The insured made a payment, but his check was returned for insufficient funds. On April 11, 1969, Southern sent a letter informing the insured that coverage was reinstituted on April 3, 1969. An additional amount was required to pay the policy in full through April 3, 1970. After the insured’s check was again dishonored, his coverage was extended to May 30, 1969, to permit him to provide payment. On May 29, 1969, the insured sent another check which was dishonored and Southern gave the insured until 12:01 a.m. on July 11, 1969, to make payment. The insured paid on July 11, 1969, but after 12:01 a.m. On July 25, 1969, Southern returned the check to the insured with a letter stating that the policy was can-celled on April 3, 1969. The first circuit found that the insured was merely informed of Southern’s intent to cancel the policy. He did not receive the statutorily required notice of cancellation.

      . Judge Parro dissented and agreed with this court’s decision in Folds.


source: Caselaw Access Project

author: CARAWAY, J.

license: Public Domain

text:
    LONGLEAF INVESTMENTS, L.L.C., Plaintiff-Appellee v. CYPRESS BLACK BAYOU RECREATION CENTER & WATER CONSERVATION DISTRICT, Defendant-Appellant.
    No. 48,180-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 26, 2013.
    Ayres, Warren, Shelton & Williams, L.L.C., Shreveport, LA, by Curtis R. Shelton, Lee H. Ayres, Justin N. Myers, for Appellant.
    David L. White, Bossier City, LA, Charles G. Tutt, Shreveport, LA, for Ap-pellee.
    Before WILLIAMS, CARAWAY and MOORE, JJ.
   CARAWAY, J.

bThe defendant appeals an adverse judgment granting the plaintiff a preliminary injunction. The dispute arose a year after the plaintiff began construction along a public reservoir of a seawall, which is now 90-95% complete. While the defendant granted the plaintiff a permit to construct the seawall, it argues that the permit only granted plaintiff one year to complete the seawall. Additionally, the defendant argues that the seawall was placed in an improper location on defendant’s property. After the issuance of the permit for the seawall, as construction began, the parties also executed a boundary agreement that sets forth a boundary line pertaining to the seawall. The defendant, a political subdivision of the state, challenged the boundary agreement and the trial court’s granting of a preliminary injunction. We agree with the trial court’s ruling and affirm the plaintiffs preliminary injunction.

Facts

As developed in the hearing for the preliminary injunction, the facts concern a permit for a seawall and boundary dispute, uniquely situated along a public reservoir. The plaintiff, Longleaf Investments, L.L.C. (hereinafter “Longleaf’), is a lake lot owner with land located on Cypress Lake which is owned and regulated by defendant, Cypress Black Bayou Recreation & Water Conservation District (hereinafter “the District”). The District is a political subdivision with powers addressed in La. R.S. 38:2601, et seq.

|aOn July 7, 1969, the Department of Public Works recorded right of way maps of the Proposed Bayou Cypress Reservoir (hereinafter the “Lake Plat”). The Lake Plat set forth and described the following surveyed lines around the proposed reservoir in relation to mean sea level (“MSL”) elevations:

179.6 M.S.L. Contour-Top of irrigation and municipal water supply pool;
Fee Line (Greater of 2 feet vertically or 100 feet horizontally above the 179.6 contour);
Easement Line (187.5 M.S.L. Contour).

Other than the above quoted language on the Lake Plat describing the three boundary lines (hereinafter the “Contour Line,” the “Fee Line,” and the “Easement Line,” respectively), the Lake Plat gave no explanation for these lines.

On July 31, 1969, several land owners, the predecessors-in-title to Longleaf, conveyed to the District a large tract of land “lying below the fee line” as depicted on the previously recorded Lake Plat. This conveyance included the land adjacent to the lake bed now in dispute. Cypress Lake was thereafter created.

The District has adopted and maintained its “Official Policy and Regulations” (hereinafter the “Regulations”), for the public use of Cypress Lake. The Regulations also identify and address the purpose of the three surveyed lines identified on the Lake Plat. Regarding the 187.5 MSL Easement Line, the Regulations state:

In order to provide for periodic floods which may inundate areas above spillway elevation 179.6 MSL, the District has acquired a |sflowage easement up to the (flowage easement line) elevation of 187.5 feet MSL. Section II, Rule 10(a).

In addressing the Fee Line and the Contour Line, and the use of the land between these lines, the Regulations state:

In order that private land owners may have the use of this property as a means of access to the lake surface, a lease may be issued by the District to adjacent property owners when the terms, fees, conditions, and restrictions established are agreed to in writing. Section III, Rule 2(a).
Private lot owners ... owning or having acquired lease on property adjacent to the “in fee line” and planning to locate or located on such property above the “in fee line” may be issued leases on the area down to the water level on payment of prescribed fees therefore, and providing such private lot owners ... agree to abide by the rules and regulations governing such lease or permit covering District property. Section III, Rule 4(a).
In order to provide a public access strip around the periphery of Cypress Bayou Reservón’, the District has acquired land areas above the pool stage (179.6 MSL) to the (in-fee line) which is generally the greater of two feet vertically or one hundred feet horizontally above the 179.6 MSL contour line. Section II, Rule 9(b).

Accordingly, we will hereinafter refer to the area of land between the Fee Line and the Contour Line as the Access Strip, and it is this boundary area along Cypress Lake that is the focus of this dispute.

Additionally, the District has many other rules and provisions within the Regulations, that may have a bearing upon this dispute. We have reviewed all of the Regulations involved.

IsLongleaf purchased the property at issue (hereinafter the “Longleaf Tract”) on January 19, 2006. Longleaf is owned by James Young, a real estate appraiser, and his wife. The Longleaf Tract is a peninsula surrounded on the north, west, and south by Cypress Lake. The 2006 Long-leaf deed made reference to the 1969 deed and conveyed a portion of the land retained along the Fee Line by the vendors to the 1969 conveyance. Thus, the boundary between Longleafs and the District’s properties in 2006 remained the Fee Line.

In 2010, Longleaf decided to develop its property and create a subdivision. Due to erosion around the Longleaf Tract, Young was not clear on the boundaries with regard to Cypress Lake. Longleafs survey- or and chief engineer, Joey French, was therefore tasked with establishing the boundary line and constructing a seawall around the Longleaf Tract in order to prevent further erosion. Accordingly, Young and French met with Bruce Easterly, the District’s professional engineer and land surveyor, to begin this process. The parties walked the shoreline, noted the erosion, and according to French, discussed “reestablishing where the contour was prior to the erosion, where it was in 1969 when the property was transferred.” Easterly testified that he informed them of the District’s Regulations regarding a permit for the construction along the lake.

| (jAfter meeting with Easterly, French surveyed the Longleaf Tract in order to relocate the 1969 179.6 MSL Contour Line. While erosion made it difficult to ascertain the original shoreline and water’s edge, French’s best reconstruction plotted the course for the 1969 179.6 MSL Contour Line along the current 177 MSL Contour Line. French outlined the existing 177 MSL contour line in a rough plat that he attached to the District’s permit application and noted that Longleafs proposed seawall would be built at the 177 MSL. The plat did not, however, specifically express his determination that the present 177 MSL was the approximate location of the 1969 179.6 MSL Contour Line.

On December 14, 2010, Longleaf was granted a permit (hereinafter the “Permit”) to construct a seawall around their tract. The Permit was written on a District form, authorizing Longleaf as follows:

To: Build a seawall
Build a retaining wall at 179.6 MSL on Cypress Reservoir and 185.0 MSL on Black Bayou Reservoir not to exceed 22 inches in height and 21 inches in backfill. Taking care not to alter the original shoreline or change the original waters edge at 179.6 MSL of Cypress Reservoir and 179.6 MSL on Black Bayou Reservoir.
In the event that any work other than that listed above is performed, the necessary permit will be obtained from Cypress Black Bayou Recreation & Water Conservation District PRIOR to construction.

After receiving the Permit, French testified that he marked posts with pin flags, as Easterly requested, along the course he planned to construct the base of the seawall, at approximately the 177 MSL. French stated that these posts were driven to a depth of 4 feet with 2 to 2-1/2 feet exposed 17aboveground. Easterly denied making the post request and instead testified to only informing French and Young of the District’s Fee Line and Easement Line. French testified that he constructed the seawall so that the top of the seawall would tie in with the top of a neighboring landowner’s seawall, located at 180 MSL. French testified that Easterly said as long as fill material behind the seawall “has an insignificant impact on the lake it shouldn’t be any problem.” Construction on the seawall began in March of 2011.

Coinciding with the initial construction efforts, Longleaf also began trying to obtain a boundary agreement which Longleaf submitted to the District. An April 27, 2011 letter was prepared by Dickie Walden, the District’s executive director at that time, to advise that the District’s lawyer had reviewed the proposed boundary agreement and that more information, such as surveys and maps, were needed. This letter, however, was apparently never received by Young or Longleaf. Nevertheless, Ralph Whitley, a District Board member, told French to bring the boundary agreement to the District’s August meeting of the Board.

At the conclusion of the August meeting of the District’s Board, on August 24, 2011, Longleaf and the District, by act of its newly elected President, Michael Webber, executed a boundary agreement (hereinafter the “Boundary Agreement”). The purpose of the Boundary Agreement was described as follows:

4.
There are on file in the official public records of Bossier Parish documents and plats that identify the original acquisition boundary contour of Cypress Black Bayou Reservoir which has changed due to |8erosion. This document is to permanently affix the original contour of the boundary line separating the properties of PARTY ONE, described above, from that of PARTY TWO, described above.
5.
In order to permanently fix the location of the boundary line contour separating the property of PARTY ONE, described above, from that of the property of PARTY TWO, described above, all parties hereto stipulate and agree that the attached “Boundary Agreement Line Description,” be adopted as the boundary line contour separating the said properties.
6.
PARTY ONE waives, relinquishes and quitclaims to PARTY TWO any and all rights to any portion of the property identified in the plat referenced above as the property of PARTY TWO and PARTY TWO waives, relinquishes and quitclaims to PARTY ONE any and all rights to any portion of the property identified in the plat referenced above as the property of PARTY ONE.

French testified that a metes and bounds survey (hereinafter the “Seawall Survey”) was identified in paragraph 5 as the “Boundary Agreement Line Description” and attached to the Boundary Agreement at the time that it was executed. The Seawall Survey contained 44 calls for distance and direction. French testified that the 44 calls corresponded to the posts that he placed in order to construct the seawall. The Seawall Survey, therefore, contains a more detailed description of the seawall’s location than the plat attached to Longleafs permit application. While French testified that the Seawall Survey was attached when the Boundary Agreement was signed, these written survey calls were not recorded in the conveyance records along with the Boundary Agreement. Instead, only a “Map of Survey” roughly depicting the Longleaf Tract and the Seawall Survey course was attached.

1 nWith other Board members serving as witnesses, the District’s President Webber executed the Boundary Agreement on the District’s behalf. Webber testified that he did not know what exactly was contained in or attached to the Boundary Agreement.

After the Boundary Agreement was signed, Longleaf put up the following sign in various locations on the top its seawall:

NOTICE

Private Property

No Trespassing

Do not tie off to seawall

As construction of the seawall continued into 2012, neighboring landowners complained about the location of Longleafs seawall and the amount of fill material being placed on the bed of Cypress Reservoir. These complaints were voiced at the District meeting in March 2012. The District investigated the matter.

On April 6, 2012, the District, through its legal counsel, sent a cease and desist letter to Longleaf informing them of their error in building the seawall. The District’s letter stated:

Because we believe that the property within the retaining wall is property below the Fee Line that is owned by the District, it appears that Longleaf is attempting to claim the District’s property as its own, is filling in the District’s property with soil and may eventually plan to sell lots including the District’s property for construction of homes.
As you may be aware, not only is the property below the “Fee Line” on Cypress Lake owned by the District, there is also a flowage easement to an elevation of 187.5 feet MSL. Longleafs activities in placing fill material upon the district and upon Longleafs property interferes with the flowage easement.
Longleafs activities have not been authorized by the District. The District hereby demands that Longleaf cease and desist from any |10and all activities in adding any fill material within the aforesaid wood retaining wall and adding any fill material or making any construction in the area affected by the flowage easement.

Thereafter, an informal meeting was held with Young, French, Longleafs attorney, the District’s new executive director, Kevin Jeter, and several District commissioners to discuss the situation. Although the seawall was 90 to 95% complete, the District informed Longleaf that it would only be satisfied by the removal of the seawall.

Longleaf halted their construction on the seawall and filed a petition on May 17, 2012. The petition requests a preliminary injunction, permanent injunction, and a declaratory judgment recognizing that the Boundary Agreement is valid and effective between the parties. The defendant answered by denying the plaintiffs allegations and filing a reconventional demand that challenged the validity of the Boundary Agreement and requested a judgment ordering Longleaf to remove their seawall.

After a preliminary injunction hearing and the receipt of the above evidence, the trial court issued its opinion on August 3, 2012. The trial court’s opinion thoroughly reviewed the testimony of the witnesses and concluded:

At this point of the litigation, it appears to the Court that Longleaf has legitimately attempted to comply with everything that the District required it to do. Longleaf has relied to its detriment on the authority, or apparent authority, of the District to grant a permit and enter into a boundary agreement relinquishing its rights to the property landward of Longleafs seawall. The wall appears to be in the same location as other seawalls on the lake and does not appear to alter the shoreline or change the original water’s edge ... Irreparable injury is not a requisite item of proof to obtain a preliminary injunction in cases involving an obligation not to do. The relief requested by Longleaf is a preliminary injunction requiring the District not to do that which it 1 nhas, by issuing the permit and executing the boundary agreement, agreed not to do.

After the trial court’s ruling, the parties failed to agree as to the wording and activity by the District meant to be restrained in the preliminary injunction. The trial court held an additional hearing to clarify its position and stated that it “allowed the plaintiff to proceed and [it] restrained the District from interfering with the construction of the seawall.” The trial court added “construction of’ to its judgment and then signed the following:

A preliminary injunction shall issue enjoining the District from interfering with construction of the seawall which has been partially constructed by Long-leaf.

The District filed this appeal challenging Longleafs preliminary injunction.

Discussion

A preliminary injunction is an interlocutory procedural device designed to preserve the existing status quo pending a full trial on the merits. State ex rel. Caldwell v. Town of Jonesboro, 47,896 (La.App.2d Cir.12/19/12), 108 So.3d 217, writ denied, 18-0173 (La.1/23/13), 105 So.3d 60; Louisiana Granite Yard, Inc. v. LA Granite Countertops, L.L.C., 45,482 (La.App.2d Cir.8/18/10), 47 So.3d 573, writ denied, 10-2354 (La.12/10/10), 51 So.3d 733; Louisiana Gaming Corp. v. Rob’s Mini-Mart, Inc., 27,920 (La.App.2d Cir.1/24/96), 666 So.2d 1268, 1270. An injunction shall be issued in cases where irreparable injury, loss, or damage may otherwise result to the applicant, or in other cases specifically provided by law. La. C.C.P. art. 3601(A). An applicant for a preliminary injunction has the burden of making a prima facie showing that he will prevail on the [12merits of the case, i.e., that he will obtain a permanent injunction based upon proof of irreparable injury. White v. St. Elizabeth B.C. Bd. of Directors, 45,213 (La.App.2d Cir.6/2/10), 37 So.3d 1139.

All of the District’s assertions of error on appeal pertain to the procedural requisites for injunctive relief, including the necessity for a prima facie showing of plaintiffs claim and irreparable injury. The substantive claim by Longleaf as expressed in its petition and prayer for relief is “[f]or a declaratory judgment that its Boundary Agreement is enforceable and its permit to construct its wall is valid and in force.” From the record, the “boundary” dispute underlying this action is most unique. In fact, the title instruments establishing the lake and separating the adjoining ownerships of the District and lake lot owners indicate that the “boundary” involves more than just the so-called “fee line,” but also possible use rights extending across the land from the Fee Line to the Contour Line. It is that area of land, the Access Strip, that must be reviewed for an understanding of Longleafs substantive claim and the District’s assertions regarding the judgment for injunctive relief.

Viewed solely from the initial Lake Plat and the original 1969 deed to the District, the evidence within the conveyance records reveals that the division of ownership separating the adjoining tracts was along the line designated as the Fee Line. The Fee Line was located at least 100 feet beyond the Contour Line making the Access Strip at least that wide. Therefore, from these early documents creating the disputed boundary between the District and Longleafs predecessors-in-title, the Longleaf Tract |13did not extend to the expected pool stage of the lake which would be the water level at the spillway elevation of 179.6 MSL. Likewise, the 1969 deed to the District does not address in any manner, other than by an unclear implication, that Longleafs predecessors could gain access to the lake from their property by crossing the Access Strip to reach the water line. In the same manner, the 1969 deed does not discuss the purpose of the Easement Line or make the property retained by Longleafs predecessors above the Fee Line subject to any high water servitude in favor of the District.

This gap in the meaning for the Contour Line and Easement Line from the parish conveyance records is purportedly filled for the governance of the parties’ adjoining ownerships by the District’s Regulations. Nevertheless, from our review of the Regulations, the regime of lakeshore use addressed in the Regulations is far from clear. First, while the Regulations allow the adjoining lot owner possibly to obtain a “lease” of the Access Strip “as a means of access to the lake surface,” the Regulations do not further define this “lease” and its term or set forth clearly in the Regulations’ schedule for lake fees a rental for this lease right. Not surprisingly, the record does not disclose whether Longleaf or its predecessors-in-title ever entered a “lease” agreement with the District. Second, the Regulations discuss soil erosion along the shore in Section III, Rule 8(f) and appear to impose a duty upon each adjoining lot owner, as “lessee,” “to adequately maintain the leased area” or Access Strip from the |udamage of erosion. Nevertheless, the Regulations never specifically address a permit procedure for the construction of a seawall by the adjoining lot owner/lessee.

Despite these issues, Longleafs claim is that it has been granted a right to construct the seawall at a location running along the Contour Line. Before any consideration of the Boundary Agreement, Longleafs prima facie case first rests on the December 2010 Permit. The District’s Permit form identifies the original 1969 shoreline at the 179.6 MSL elevation. The Permit was granted to Longleaf to build a seawall at the 179.6 MSL. French interpreted the District’s use of 179.6 MSL as the line on the ground that coincided with the Contour Line of 1969. Because of erosion the actual MSL today along the location of the Contour Line is lower. Therefore, from French’s own admission, locating the geographic line of the 1969 Contour Line must involve a reconstruction and estimate of the former shoreline.

The Permit as quoted above indicated that a seawall could be constructed at the 1969 Contour Line. It allows for fill material to be placed behind the wall. The rough sketch on French’s plat submitted with the application for the Permit does show a red line identified as the “Proposed Wall = 177 +/-.” The trial court could accept French’s testimony that he had advised Easterly that he proposed to reestablish where the 1969 Contour Line was geographically located. From this evidence, because erosion had obviously occurred over 40 years, French’s interpretation and determination of the Contour Line along an elevation less than 179.6 MSL appears reasonable and his construction of the wall along this reconstructed Contour |1sLine was arguably within the authority granted by the Permit. The District’s lack of any presentation at the hearing of conflicting data from an on-the-ground survey allowed the trial court to accept Longleafs prima facie claim.

French’s later Seawall Survey is his determination of the geographic location of the former 179.6 MSL elevation, or the Contour Line. Longleafs submission of this proposed location for the seawall was contained in the August 2011 Boundary Agreement. Regardless of any error affecting the District’s consent to the Boundary Agreement which is the subject of its reconventional claim, the trial court could accept the execution of the Boundary Agreement as a further prima facie showing of Longleafs right to continue construction along the line set forth in the Seawall Survey. To that extent, the Boundary Agreement is at least a clarification and further extension of the Permit allowing for construction to continue for at least another year. Again, there is no clear permitting procedure specifically addressing seawall construction within the Regulations and no one-year limitation was set forth on the Permit. We find disingenuous the District’s attempt to enforce a one-year restraint with its ill-defined process for building a seawall, a task which the Regulations attempt to impose on the lake lot owners. Accordingly, we find that Longleaf did establish a prima facie case for a District-authorized construction of a seawall along the Seawall Survey line.

Regarding the validity and effect of the Boundary Agreement as a transfer of the District’s ownership of the Access Strip to Longleaf, the | ^merits of that controversy framed by the District’s reconventional demand await trial on the merits upon remand. Regardless of the outcome of that matter, a declaratory judgment of the ownership and extent of use rights of the parties also appears warranted for this Access Strip made a justiciable controversy in part by certain inadequacies in the title documents and Regulations noted above.

Next, the subject matter underlying this dispute involves a declaratory judgment action for the ownership, use and possession of immovable property. La. C.C.P. art. 3654. This includes the alleged extrajudicial Boundary Agreement which may convey ownership to each party along the designated line. La. C.C. art. 789 and its Revision Comment (c). Therefore, under Article 3663 of the Code of Civil Procedure and the jurisprudence interpreting the allowance for injunctive relief in real actions, a preliminary injunction brought pursuant to Article 3663 does not require a showing of irreparable harm. La. C.C.P. art. 3663; Cason v. Chesapeake Operating, 47,084 (La.App.2d Cir.4/11/12), 920 So.3d 436, writ denied, 12-1290 (La.9/28/12), 98 So.3d 840; Monroe Real Estate & Dev. Co. v. Sunshine Equip. Co., 35,555 (La.App.2d Cir.1/23/02), 805 So.2d 1200.

Finally, the District questions the particularity of the language of the injunction concerning the acts sought to be restrained. La. C.C.P. art. 3605. It is clear from that language and the post-trial proceeding over the scope of injunction that Longleaf was allowed to proceed with finishing the seawall and the District was restrained from taking any action regarding the wall during the pendency of the action. Longleafs allowance to finish the wall [17required its posting of a $75,000 bond. The District asserts that since it had never taken action to interfere with the seawall, the judgment is impermissibly vague.

We reject this attack on the injunction. The allowance for Longleafs finishing of the seawall was not contested timely by supervisory review and may be considered moot. Moreover, Longleafs bond allows protection for the District in the event it prevails on the merits. Likewise, while the District had taken no prior action on the property affecting the seawall, the trial court’s injunctive relief was appropriate to maintain the status quo of the use and occupancy of the controversial Access Strip, including the seawall.

Accordingly, the preliminary injunction is affirmed, and the case is remanded to the trial court for further proceedings. Costs of this appeal are assessed to the District in the amount of $147.50, pursuant to La. R.S. 13:5112.

PRELIMINARY INJUNCTION AFFIRMED; REMANDED.

      . The following Regulations touch on matters involved in this dispute:
      Section II, Rule 3(a): The policy is herein established that no property owned by the District will be available for private, public or commercial use, so long as such property is required for present or future District uses or purposes.
      Section II, Rule 4(a): The policy is herein established that no property owned by the District will be disposed of by sale or transfer of title at any time, unless such property is determined by the Board of Commissioners to be "surplus” and unnecessary to use by the District. In such event, property deemed surplus shall be offered for sale by public sale in accordance with Louisiana Law.
      Section II, Rule 8(a): The policies herein established that every effort will be made to retain the natural scenic beauty of the shoreline of the reservoirs. Destruction of trees, shrubs, and natural vegetative screening will be discouraged and where clearing operation on District owned lands are authorized, appropriate measures will be taken to insure proper maintenance and care of the area so cleared in order that the Natural scenic appearance of shoreline is not degraded. Restraint should be exercised toward reduction and destruction of vegetative screening.
      Section II, Rule 11(a): It shall be the policy of the District that the contiguous landowner or District Concessionaire in the recreation area, may use the area below the 179.6 foot or "pool stage,” provided that all rules and regulations, prescribed fees, restrictions, and reservations, including waiver of any claims against District for damages, are agreed to by lessee, or concessionaire, in writing. Any landowner who is proposing construction of a boathouse, pier, wharf or deck, and its location begins on the landowner's property and extends into the property of Cypress Black Bayou Recreation and Water Conservation District, must submit to the commission the following information before the commission can consider granting permission for such construction:
      ⅜ ⅜ ⅜ ⅜ ⅞: ‡
      (e) Boathouses, docks, wharves, and piers or any other such facility may be constructed below the fee line only after written permission is given by the Cypress Black Bayou Recreation and Water Conservation District commission. This permission is at the commission's discretion.
      Section II, Rule 12(a): It shall be the policy of the District that the adjacent property owners or District concessionaire may have the right to lease the area between the "in fee line” and the pool stage contour line (179.6 MSL) providing that all rules and regulations, prescribed fees, restrictions and reservations, including waiver of any claims against District for damages, are agreed to by owner and concessionaire in writing. Boathouses, docks, wharves and piers and/or any other construction may be permitted below the fee line ONLY when written permission has been given by the District. The general public shall have the right of ingress and egress to, from and along the water front over leased area, but this right does not include the right to utilize authorized private structures and facilities placed thereon by LESSEE. Applications for "leases” and/or "permits” shall be made on application forms obtained at the Cypress Black Bayou Recreation and Water Conservation District office at Benton, Louisiana, 135 Cypress Park Drive, Benton, Louisiana 71006.
      Section III, Rule 5(a): All owners or lessees of land around Cypress Bayou Reservoir abutting the District "in fee line” including private, individual, business, commercial organization and developers of Real Estate Subdivision, who do desire to alter, change or realign the Cypress Black Bayou Reservoir water line in District property by channeling, digging, scraping or moving of earth, in order to bring the water level closer to their property line and/or to deepen such channel for boating, water in takes, etc. must file application and a copy of plans with the District and obtain approval by permit prior to doing any work of this type. If additional lands are flooded or become subject to flooding, the owner must first deed to the Cypress Black Bayou Recreation and Water Conservation District a simple title to said lands to be flooded and an additional 100 feet horizontal or 2 feet vertical, whichever is greater, landward in all directions.
      Section III, Rule 5(b): When it has been determined by the District that such plans are in order, approval will be given and upon payment of any prescribed fees, a permit will be issued to private individual, business, commercial and/or organization property owner or lessee. Work authorized under the permit must be completed with a period of 12 months from date of permit and must be accomplished in accordance with the plans approved by the District.
      Section III, Rule 6(a): Lease agreements may be entered into with certain landowners of property abutting District owned property. These “lease” agreements will state: "The parties hereto agree that in executing this lease, District in nowise surrenders any right in the property herein leased necessary in the construction, operation, maintenance or financing of said project or directly or indirectly connected therewith. It does not invest in LESSEE any right or privilege inconsistent with such rights.”
      Section III, Rule 8(f): The parties hereto recognize that in the public interest the lake must be fully protected against contamination of any kind, and against hazardous and unsafe installations or constructions contrary to building, safety and sanitary requirements now existing or hereafter adopted by the District. The parties hereto further recognize that situation caused by soil erosion is the most frequent type of pollution and lessee agrees to take every precaution and action to control soil erosion. The parties hereto further recognize the desirability of maintaining the pleasant and natural appearance of the shoreline and lessee agrees to adequately maintain the leased area so as not to detract from the scenic beauty of same.
      Section III, Rule 8(h): It is agreed by the parties hereto that the general public is to have the right of ingress and egress to, from and along the water front over the leased area and the LESSEE shall erect no fences without the written consent of the District. On receiving written permission of the District for construction of a fence or fences, adequate gates or stiles will be installed to permit unimpeded public passage along the shoreline. This does not include the right to utilize the authorized private structures and facilities placed thereon by LESSEE.

      . It is puzzling why these 1969 instruments creating Cypress Lake never address the purpose of the Contour Line and Easement Line and define the real rights of access and use that may pertain thereto. It suggests that not all recorded instruments relating to the platting of the lake may be present in the record of this suit.


author: BROWN, Chief Judge.

text:
    STATE of Louisiana, Appellee v. Alonzo E. ALLEN, Appellant.
    Nos. 48,324-KA, 48,328-KA.
    Court of Appeal of Louisiana, Second Circuit.
    June 26, 2013.
    Rehearing Denied Aug., 1, 2013.

      Edward J. Marquet, Lafayette, LA, Louisiana Appellate Project, for Appellant.
    Alonzo E. Allen, Pro Se.
    Richard Z. Johnson, Jr., District Attorney, Ron C. Stamps, Britney A. Green, Assistant District Attorneys, for Appellee.
    Before BROWN, MOORE, and PITMAN, JJ.
   BROWN, Chief Judge.

| A six-count bill of information charged that on October 16, 2011, defendant, Alonzo E. Alien, (1) possessed with the intent to distribute cocaine; (2) possessed with the intent to distribute oxycodone; (3) possessed with the intent to distribute hydro-codone; (4) possessed with the intent to distribute diazepam; (5) possessed a firearm with a controlled dangerous substance; and (6) possessed a fírearm by a convicted felon.

A jury found defendant guilty of all six counts. Thereafter, the state filed a habitual offender bill of information charging defendant as a sixth-felony habitual offender. The trial court determined defendant to be a second-felony offender. Thus, all of defendant’s convictions, except his conviction for possession of a firearm by a convicted felon, would be enhanced by virtue of defendant’s adjudication as a second-felony offender. The defense waived sentencing delays.

The trial court imposed hard labor sentences without the benefit of parole, probation, or suspension of sentence on all six counts. However, following a hearing on defendant’s motion to reconsider sentence, the trial court, citing La. R.S. 15:529.1(G), amended defendant’s sentences for the first five convictions to allow for the benefit of parole. Defendant’s hard labor sentences were as follows: count one — 40 years; count two — 40 years; count three— 15 years; count four — 15 years; count five — 10 years; count six — 10 years, all to be served without benefits. Additionally, all sentences were to run concurrently.

| ¡¿Defendant has appealed. Appellate counsel assigned as error the trial court’s denial of defendant’s pre-trial motion to suppress. Defendant filed a pro se brief stating that the issue on appeal is “[I]f the initial traffic stop was illegal then all that happened after being stop[ped] was illegal as well.” We affirm.

Discussion

The right of every person to be secure in his person, house, papers and effects against unreasonable searches and seizures is guaranteed by the Fourth Amendment to the United States Constitution and by Article I, § 5 of the 1974 Louisiana Constitution. Security from “unreasonable” government intrusion is the ability to exclude the government. Consistent with our precedent, our analysis begins, as it should in every case addressing the reasonableness of a warrant-less search, with the basic rule that “searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions.” Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009); State v. Thompson, 02-0333 (La.04/09/03), 842 So.2d 330.

Under the automobile exception to the warrant requirement, law enforcement officers may seize and search a vehicle without a warrant if probable cause exists to believe that the vehicle contains contraband or evidence of a crime and there must be exigent circumstances requiring an immediate search. State v. Thompson, supra.

| ¡¡The trial court in this case held an evidentiary hearing to answer this fact-specific question. In State v. Vaughn, 378 So.2d 905, 909 (La.1979), the Louisiana Supreme Court wrote: “We also note that this court has held that, in determining the correctness of a ruling on a pre-trial motion to suppress, we are not limited to the evidence presented at the hearing on that motion but may consider all pertinent evidence adduced at the trial on the merits.” In State v. Sherman, 04-1019 (La.10/29/04), 886 So.2d 1116, the Louisiana Supreme Court again stated: “As a general rule, an appellate court may review the testimony at trial in determining the correctness of the trial court’s pre-trial ruling on a motion to suppress.... This review may provide supplemental information relevant to the suppression issue. See, e.g., State v. Beals, 410 So.2d 745, 747 (La.1982).”

This court reviews the trial court’s ruling on a motion to suppress under the manifest error standard in regard to factual determinations, while applying a de novo review to its findings of law. State v. Durham, 47,549 (La.App.2d Cir.11/14/12), 107 So.3d 755.

Facts

On April 11, 2012, defendant’s motion to suppress was heard. Officer Billy D. Locke, of the Mansfield Police Department, testified that on October 16, 2011, he received a tip from a confidential informant that defendant would be heading into Mansfield on Louisiana Highway 175 North driving a maroon Chevrolet pickup truck, and that he would be transporting narcotics in the truck. Officer Locke explained that the confidential informant had previously provided Officer Locke with reliable 1 information that had led to a number of prior arrests and convictions. Furthermore, Officer Locke testified that he knew defendant prior to this incident.

Officer Locke investigated the confidential informant’s tip by setting up a stationary patrol. Officer Locke thereafter observed the Chevrolet pickup truck as described by the informant driving down Highway 175 and making a turn onto Highway 509. Once Officer Locke observed that defendant was the driver of the truck, the officer initiated a traffic stop of the vehicle. Officer Locke testified that after this stop he found drugs in the truck. On cross-examination, Officer Locke explained that he had used the confidential informant 10 or 12 times, resulting in several convictions. Officer Locke testified that he did not observe defendant committing a traffic violation; rather, the stop was based on the confidential informant’s tip. Defendant did not testify or present any other evidence. Based on Officer Locke’s testimony, the trial court denied the motion to suppress.

Thereafter, at a preliminary hearing, Officer Locke added that after he pulled defendant over, defendant produced a driver’s license which had expired in 2007. Officer Locke advised defendant that he was under arrest. At this point, Officer Locke patted defendant down “for officer’s safety” and discovered that he was carrying a .22 caliber revolver in his pocket. There were five spent shells in the revolver. Officer Locke testified that Defendant gave Officer Locke permission to search his vehicle, which resulted in the discovery of what appeared to be a large rock of crack |scocaine which was in the center console of the truck. There were also several pill bottles filled with various pills in the truck. The items recovered were sent to the North Louisiana Crime Lab for analysis.

Following voir dire, defendant’s trial commenced with the testimony of Officer Locke, which was substantially similar to his testimony at the motion to suppress and preliminary examination. However, Officer Locke added information that the confidential informant told him that defendant often carried a handgun.

On cross-examination, Officer Locke testified that the truck that defendant was driving was registered to defendant’s employer, Gregory Mims. Officer Locke again added information that when he retrieved the .22 caliber revolver from defendant’s pocket, he also found a bottle containing pills. Officer Locke stated that he did not find any money on defendant or in the truck he was driving. Officer Locke identified the items taken from defendant’s person and the truck.

The state admitted into evidence the lab report from the North Louisiana Crime Lab which verified the composition of the drugs confiscated from defendant’s person and the truck he was driving.

Lieutenant Tony Joe Morris, an officer with the DeSoto Parish Sheriffs Office and expert in fingerprint analysis, matched fingerprints on a Lbill of information, listing defendant as “Alonzo Allen” and showing a conviction in DeSoto Parish for. possession of a Schedule II, controlled dangerous substance, to wit cocaine, on January 8, 2009, to fingerprints taken in open court from defendant. In his trial testimony, defendant admitted that he was convicted of this January 2009 cocaine charge.

At trial, the defense called April Gilbert, defendant’s daughter. Ms. Gilbert testified that she observed Officer Locke’s search of the truck her father was driving on October 16, 2011. Ms. Gilbert stated that she spoke with her father after his arrest, while he was waiting to be transported, and he told her that Officer Locke had taken his cell phone and money. Ms. Gilbert said that she saw money in the truck on the driver’s seat, along with drugs. On cross-examination, Ms. Gilbert admitted to previously being convicted of felony theft and monetary instrument abuse.

The defense called Gregory Mims who testified that defendant was an employee at his company, Mims’ Recycling. Mims stated that the truck driven by defendant on October 16, 2011, belonged to Mims. According to Mims, defendant had not gone to work that day, but had stopped by Mims’ house earlier that day to borrow $300. Mims lent him the money. Later, when Mims went to pick up the truck from the scene of the stop, he asked Officer Locke if there were any more drugs in the truck. Mims explained that he did not want to drive off with drugs in the truck. Defendant then directed the police officers to additional pills in the truck. On cross-examination, Mims denied ownership of the drugs found in his truck.

|7Against advice from his attorney and warnings given by the trial court, defendant took the stand in his own defense. Defendant stated that Officer Locke fabricated the evidence against him because he was angry with defendant. He claimed that he and Officer Locke were caught in a love triangle with a woman named Kristin Marr. Defendant said that Ms. Marr and Officer Locke plotted together to wrongly convict defendant of the charges brought against him. Defendant testified that he had left Ms. Marr a short time before his arrest and that he believed that Ms. Marr was the confidential informant. Defendant stated that the bottles with the pills were in the truck but that they did not belong to him. He did not claim that Ms. Marr put the pills in the truck but said that another employee of Mims had used the truck. He denied that the cocaine was in the truck and also he denied possessing the .22 caliber revolver.

According to defendant, he was working on a semi-truck for Mims on October 16, 2011, and Mims gave him $300 to buy parts to repair the truck. Defendant stated that he was also carrying some of his personal money and that Officer Locke stole it from him. Defendant referred to Officer Locke as a “crooked cop and a thief.”

On cross-examination, in addition to the January 2009 possession of cocaine conviction, defendant admitted to convictions for aggravated battery with a dangerous weapon in 1989 for which he served five years at hard labor; aggravated arson in 1991 for which he served four years; and a 1991 conviction for possession of cocaine.

|sThe state called Officer Locke to rebut defendant’s testimony. Officer Locke denied framing defendant for the charges against him, and denied stealing his money. After closing arguments and jury instructions, the jury found defendant guilty of all six charges.

Analysis

The question before the court is whether the informant’s tip supported by the officer’s investigation gave Officer Locke probable cause to stop and search defendant’s vehicle. The trial court answered this question in the affirmative.

The facts in this case indicate that there was probable cause to stop and search the vehicle. Under the automobile exception to the warrant requirement, law enforcement officers may seize and search a vehicle without a warrant if probable cause exists to believe that the vehicle contains contraband or evidence of a crime. The “ready mobility” of automobiles permits their search based only on probable cause. Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) (finding that a totality of the circumstances analysis should be used to determine whether an informant’s tip provides probable cause to issue a warrant).

This court has found that probable cause for a traffic stop existed in a case with facts similar to these. State v. Williams, 567 So.2d 755 (La.App. 2d Cir.1990), writ denied, 573 So.2d 1133 (La.1991). In State v. Williams, a confidential reliable informant, who had previously provided information leading to at least 15 drug arrests, telephoned the DeSoto Parish Sheriffs Office to inform them that the defendant had marijuana and crack |9cocaine on his person and that he was getting ready to leave his mother’s house and travel to Texas. The informant also described the color, make and year of the vehicle the defendant was driving. Police responded to the scene, and saw the defendant leave his mother’s house and head west toward Texas. One of the officers pulled the defendant over, and conducted a pat down, which led to the discovery of marijuana and crack cocaine. The defendant filed a motion to suppress, alleging that police did not have probable cause to stop and search him. The trial court denied the motion, and this court affirmed, explaining:

The verification of the details given to Lt. Davidson by his informant, whose past reliability had proven to be extensive, underpins the presence of probable cause in the instant case. The ability of this clandestine individual to predict future behavior demonstrated his personal knowledge of defendant’s affairs. The general public would have had no way of knowing defendant would shortly leave his mother’s house, get in the described car, and drive toward the Texas state line. Because the RCI’s revelations had proved true on these points, the reasonableness of Lt. Davidson’s belief that this informant had access to reliable information concerning Williams’ illegal activities is tenable. Therefore, under the totality of the circumstances, the tip, as corroborated, justified arrest.

State v. Williams, 567 So.2d at 757.

Whether an informant’s tip provides “sufficient indicia of reliability” we examine certain factors under the totality of the circumstances to provide reasonable suspicion or probable cause for a search or a warrant. Illinois v. Gates, supra; State v. Huntley, 97-0965 (La.03/13/98), 708 So.2d 1048. The informant in this case was known to Officer Locke. He/she was not an anonymous tipster and would certainly be held responsible if the tip was incorrect. Moreover, though the precise tip at issue may not have been 11ncommunicated face-to-face, the tip was not a one-time communication. Additionally, the content of the tip-information regarding the location, time, and drugs — was specific information not available to an outside observer. The informant provided information that was only known because he/she was present with the defendant when defendant left with the drugs. We note that defendant claimed that Ms. Marr was with him minutes before he was stopped by Officer Locke and that she was the informant. Indeed, the informant witnessed criminal activity. Officer Locke was able to independently corroborate the informant’s tip when Officer Locke set up at the location provided by the informant and confirmed the truck’s movement. Thus, the informant’s accuracy and reliability were verified by Officer Locke prior to the stop. Accordingly, the totality of the circumstances demonstrates that probable cause existed to believe that defendant was in possession of and the truck he was driving contained drugs.

^¡Conclusion

For the reasons set forth above, defendant’s convictions and sentences are affirmed.

APPLICATION FOR REHEARING

Before BROWN, STEWART, MOORE, LOLLEY, and PITMAN, JJ.

Rehearing denied.

      . No. 48,328-KA, the habitual offender case, was consolidated with No. 48,324-KA, the instant case.

      . This is the only time Officer Locke testified that consent was given. At trial when asked by defense counsel why he didn’t get a search warrant, Officer Locke said because he had probable cause to search. When defendant testified at trial, he was not asked whether he gave consent for the search.

      . During this time, outside the presence of the jury, the trial court denied defendant's request to disclose the identity of the confidential informant.

      . The parties consistently referred to this revolver as a pistol.

      . Other officers had arrived at the scene by this time.

      . Prior to his testimony, the trial court denied defendant’s request to relieve his trial attorney.

      . In his pro se brief, defendant raises 11 assignments of error, which have been summarized as follows:
      1. Denial of a preliminary examination
      2. Denial of the right to face his accuser
      3. Denial of the right to privacy
      4. Jurisdictional defect concerning the state’s failure to include a dollar amount of the drugs admitted into evidence.
      5. Evidence was not field tested
      6. Tampering with the evidence
      7. Arresting officer stole the defendant’s money
      8. Evidence was not sent to the crime lab promptly
      9. Video from the police car was subpoenaed and not produced
      10. Breach of contract on the defendant’s predicate offenses
      11. Ineffective assistance of counsel Nevertheless, we find that defendant does not address these assignments of error. As such, his assignments were abandoned.