author: CHARLES R. JONES, Judge. TOBIAS, J.,

text:
    MOORING FINANCIAL CORPORATION 401(K) PROFIT SHARING PLAN v. Cynthia M. MITCHELL and Mortgage Electronic Registration Systems, Inc.
    No. 2008-CA-1250.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 10, 2009.

      Scott J. Sonnier, Christovich & Kearney, L.L.P., New Orleans, LA, for Plaintiff/Ap-pellee.
    Harry R. Holladay, Jonathan C. McCall, Douglas L. Grundmeyer, G. Wogan Bernard, Chaffe McCall, L.L.P., New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge CHARLES R. JONES, Judge MAX N. TOBIAS, JR., and Judge DAVID S. GORBATY).
   CHARLES R. JONES, Judge.

Lin the instant matter, the appellant, Cynthia M. Mitchell, seeks review of the district court’s grant of a default judgment to the appellee, Mooring Financial Corporation 401K Profit Sharing Plan (“Mooring”). We affirm.

Mooring filed a Petition to Quiet Tax Title, naming as defendants Ms. Cynthia Mitchell — who was sued in her individual capacity and as a successor in interest to PM Properties, L.L.C. — -and Mortgage Electronic Registration Systems, Inc. The petition sets forth that “by virtue of a tax sale filed as CIN 243384 in the conveyance records of Orleans Parish,” it was the “sole and only owner” of the immovable property described as:

A CERTAIN PIECE OR PORTION OF GROUND, together with all the buildings and improvements thereon, and all rights and prescriptions (both liberative and acquisitive) and ways, privileges, servitudes and advantages thereunto belonging or in anywise appertaining, situated in the SECOND DISTRICT of the City of New Orleans, State of Louisiana, in SQUARE NO. 408, which square is bounded by St. Philip, North Gayoso, and North Salcedo Streets and Ursulines Avenue, which lot of ground is designated by the NO. 10 [sic], and said lot No. 10 commences at a distance of 108 feet, 9 inches, 6 lines from the corner of St. Philip and North |2Gayoso Streets, and measures thence, 31 feet from the front on St. Philip Street, the same in width in the rear, by a depth of 116 feet, 3 lines between equal and parallel lines, all according to sketch of survey by Gilbert & Kelly, Surveyors, dated May 22, 1948, recerti-fied on September 13, 1960, a copy of which is annexed to act passed before William L. Andry, Notary Public, dated, October 16,1969.
The improvements thereon bear the Municipal Nos. 3013-15 St. Philip Street.

Mooring claimed to have acquired the property in 2002 through a tax deed from the tax collector for the City of New Orleans, and sought to have its title quieted and confirmed according to La. Constitution 1974, Art. VII, § 25, and former La. R.S. 47:2228, et seq. Mooring prayed for a judgment confirming and quieting its titled as the “sole and only owner thereof in perfect ownership, free from any encumbrances and forever enjoining and prohibiting the said defendants, their heirs and assign from claiming or setting up any right, title or interest in and to said property or any part or portion thereof....”

Mooring requested personal service on Ms. Mitchell in Slidell, Louisiana, and long-arm service and citation on Mortgage Electronic to be made in Flint, Michigan. The sheriffs return reflects personal service on Ms. Mitchell on March 26, 2008.

Subsequently, on May 6, 2008, Mooring filed into the record the affidavit of Lisa Ferrara, who asserted that she had served the citation and petition on behalf of Mooring, under La. R.S. 13:3204 (the Louisiana Long |sArm Statute) via certified mail addressed to Mortgage Electronic at a post office box in Flint, Michigan. She attached a return postal receipt of the mailing to her affidavit.

Approximately two weeks later on May 21, 2008, less than 30 days after service, Mooring moved for a preliminary default on the grounds that Ms. Mitchell and Mortgage Electronic had been served with the petition and citation, but had failed to file responsive pleadings. The district court entered an order of preliminary default.

On July 9, 2008, the district court signed a default judgment in Mooring’s favor and against Ms. Mitchell and Mortgage Electronic, which effectively confirmed and quieted Mooring’s alleged tax title to the property. The judgment specifically sets forth that Mortgage Electronic failed to appear and answer within the appropriate legal delay and that Mooring made “due proof of claim herein.” This timely appeal followed.

Ms. Mitchell now raises the following assignments of error on appeal:

1. The district court erred in confirming a default judgment without a valid preliminary default.
2. The district court erred in confirming a default judgment without an evidentiary hearing in open court?
3. The district court erred in confirming a default judgment without competent evidence proving a prima fa-cie case?

JjDISCUSSION

In Arias v. Stolthaven New Orleans, L.L.C., 2007-0650 (La.App. 4 Cir. 3/19/08), 980 So.2d 791, this Court reiterated the standard of review for a judgment of default as follows:

The determination of whether there is sufficient proof to support a default judgment is a question of fact and should not be disturbed on appeal unless it is manifestly erroneous. Ledet v. Moe, 03-745 (La.App. 5 Cir. 12/9/03), 864 So.2d 643, 644.
In reviewing a default judgment, an appellate court is restricted to determining whether the record contains sufficient evidence to prove a prima facie case. Rhodes v. All Star Ford, Inc., 599 So.2d 812, 813 (La.App. 1 Cir.1992). Although there is a presumption that the judgment confirming a default is supported by competent evidence, it does not apply when, as in this case, there is a transcript of the confirmation proceeding. Hickman v. Wm. Wrigley, Jr. Co., Inc., 33,896 (La.App. 2 Cir. 10/4/00), 768 So.2d 812, 815. A prima facie case is established as required for confirmation of a default judgment, when the plaintiff proves the essential allegations of the petition, with competent evidence, to the same extent as if the allegations had been specifically denied. Power Marketing Direct, Inc. v. Foster, 05-2023, pp. 11-12 (La.9/6/06), 938 So.2d 662, 670. A prima facie case is one that will entitle a party to recover if no evidence to the contrary is offered by the opposing party. Thibodeaux v. Burton, 538 So.2d 1001, 1004 (La.1989). In other words, the plaintiff must present competent evidence that convinces the court that it is probable that he would prevail on a trial on the merits. Thibodeaux, 538 So.2d at 1004.
The plaintiff is confined to the facts and the theories pled in his petition; he may not expand his pleadings by introducing evidence at the confirmation hearing. Thus, the plaintiff is precluded from obtaining a default judgment “different in kind from that demanded in the petition.” La. C.C.P. art. 1703; See Spear v. Tran, 96-1490 (La.App. 4 Cir. 9/18/96), 682 So.2d 267. | ¿However, the Louisiana Supreme Court has held that “the pleadings which lead up to the demand, or prayer, upon which a default judgment is based are to be construed no more restrictively than pleadings suggestive of other judgments.” Royal Furniture Co. of Baton Rouge, Inc. v. Benton, 260 La. 527, 532, 256 So.2d 614, 616 (1972).

Id., 2007-0650, pp. 980 So.2d at 796-797.

Article 1702(A) of the Louisiana Code of Civil Procedure, titled Confirmation of default judgment, provides:

A. A judgment of default must be confirmed by proof of the demand sufficient to establish a prima facie case. If no answer is filed timely, this confirmation may be made after two days, exclusive of holidays, from the entry of the judgment of default. When a judgment of default has been entered against a party that is in default after having made an appearance of record in the case, notice of the date of the entry of the judgment of default must be sent by certified mail by the party obtaining the judgment of default to counsel of record for the party in default, or if there is no counsel of record, to the party in default, at least seven days, exclusive of holidays, before confirmation of the judgment of default.

In the instant matter, Ms. Mitchell asserts that pursuant to Louisiana Code of Civil Procedure arts. 1702 and 1702.1, a plaintiff must first obtain a preliminary judgment prior to confirming it two days later, through proof of that demand sufficient to establish a prime facie case. She argues that the judgment rendered in the instant case is an absolute nullity. Ms. Mitchell also argues that the Louisiana Long Arm Statute, La. R.S. 13:3205, requires |fia mandatory 30-day time limit before a plaintiff can obtain a preliminary default against a non-resident defendant.

The record reflects that Mooring requested service on Mortgage Electronic, a non-resident defendant, through the Louisiana Long Arm statute. On May 6, 2008, Mooring filed an affidavit into the record in which it asserted that it had made service on Mortgage Electronic, and attached the return receipt as evidence of its mailing.

On May 21, 2008, less than 80 days of filing, Mooring moved for a preliminary default against Ms. Mitchell and Mortgage Electronic. The district court entered an order of preliminary default on May 27, 2008 — which is less than 30 days after the filing of the affidavit and return receipt. Ms. Mitchell asserts that the preliminary default violates the long arm statute and is therefore invalid and absolutely null.

She also argues that as a named defendant in the default judgment, she (as the property owner) has standing to assert the absolute nullity of the preliminary default against Mortgage Electronic. Hence, she asserts that without a valid preliminary default against Mortgage Electronic, the subsequent default judgment could not be confirmed and quiet the title in dispute.

Mooring argues that the district court properly entered a default judgment against Ms. Mitchell and Mortgage Electronic. Mooring argues that pursuant to La. R.S. 47:2228, that it had a right to confirm the default judgment within ten days, rather than wait thirty days. Particularly, the statute, as it read at the time of the confirmation of the default judgment, provided:

“... After the lapse of six months from the date of service of petition and citation, if no proceeding to annul the sale has been instituted, | ^judgment shall be rendered quieting in confirming the tax title.
In all cases where tax titles have been quieted by prescription of five years under the provisions of Section 25 Article VII of the constitution of 1974, the purchaser or his heirs or assigns may, if he or they so desire, either obtain a judgment of the court confirming the title by suit in the manner and form as herein-above set out, except that the delay for answers shall be 10 days instead of six months ...”

Mooring maintains that it clearly set forth in its original petition to quiet tax title that it was proceeding under the five-year prescriptive period and it further notes that the tax deed had been filed in the conveyance office on August 30, 2002, more than five years before the petition was filed, and therefore, the delay for the answer was ten (10) days, rather than thirty (30).

Our review of the record indicates that service was made on a non-resident defendant (Mortgage Electronic), and that in effectuating service on a defendant, Mooring was required to wait thirty days before it pursued a confirmation of the default judgment.

In the instant matter, the service return receipt is dated April 9, 2008, and the affidavit evidencing long arm service to Mortgage Electronic was filed into record nearly one month later on May 6, 2008. Mooring then moved for a preliminary default on May 21, 2008, and on May 27, 2008 a confirmation of the preliminary default judgment was entered. The court rendered its judgment of default on July 9, 2008. Hence, it is clear from the record that Mooring did not comply with the procedure for obtaining a default judgment.

Louisiana Revised Statute 13:3205, titled Default judgment; hearings; proof of service of process, is clear and unambiguous:

No default judgment can be rendered against the defendant and no hearing may be held on a contradictory motion, rule to show cause, or other |ssummary proceeding, except for actions pursuant to R.S. 46:2131 et seq., until thirty days after the filing in the record of the affidavit of the individual who either:
(1) Mailed the process to the defendant, showing that it was enclosed in an envelope properly addressed to the defendant, with sufficient postage affixed, and the date it was deposited in the United States mail, to which shall be attached to the return receipt of the defendant; or
(2) Utilized the services of a commercial courier to make delivery of the process to the defendant, showing the name of the commercial cornier, the date, and address at which the process was delivered to the defendant, to which shall be attached the commercial courier’s confirmation of delivery; or
(3) Actually delivered the process to the defendant, showing the date, place, and manner of delivery.

(Emphasis ours.)

Before we can discuss the merits of the instant appeal, we have to consider the procedural posture of the parties involved. We note first that neither Ms. Mitchell nor Mortgage Electronic filed answers (or any responsive pleadings, exceptions, etc.) once they were served with a copy of the citation and petition; second, even though proof evidencing long arm service on Mortgage Electronic was filed into the record, on May 6, 2008, at no time did Mortgage Electronic nor Ms. Mitchell file any responsive pleadings; third, once the preliminary default was entered, on May 21, 2008, Ms. Mitchell and Mortgage Electronic still failed to make any appearances of record; fourth once the preliminary default was confirmed, neither Ms. Mitchell, nor Mortgage Electronic sought to attack the validity of the default judgment by filing a petition for nullity, pursuant to La. C.C.P. art. 2001.

Louisiana Code Civil Procedure art. 2001, provides that “[t]he nullity of a final judgment may be demanded for vices of either form or substance | gas provided in Articles 2002 through 2006.” “A defendant who voluntarily acquiesced in the judgment, or who was present in the parish at the time of its execution and did not attempt to enjoin its enforcement, may not annul the judgment on any of the grounds enumerated in Article 2002.” La. C.C.P. art. 2003. Furthermore,

A final judgment obtained by fraud or ill practices is not an absolute nullity; the nullity must be properly decreed within the time prescribed. Knight, 566 So.2d at 137; see LSA-C.C.P. art. 2004(B). No specific provision was made in Article 2004 regarding the manner of asserting the grounds of nullity. This was thought unnecessary in view of the established jurisprudence to the effect that such grounds must be asserted in a direct action and cannot be raised collaterally. LSA-C.C.P. art. 2004, Official Revision Comments-1960, comment (d); see Knight, 566 So.2d at 137, citing Nethken, 307 So.2d at 565, and Pontchartrain Park Homes, Inc. v. Sewerage and Water Bd. of New Orleans, 246 La. 893, 168 So.2d 595, 597 (1964). Thus, the party praying for the nullity of a relatively null judgment must bring his action by means of a petition, and the adverse party must be cited to appear, as in ordinary suits. Knight, 566 So.2d at 137; see LSA-C.C.P. art. 1201; Ledford v. Pipes, 507 So.2d 9, 11 n. 1 (La.App. 2nd Cir.1987). A direct action can be brought by filing a separate proceeding or by the filing of a pleading in the same proceeding as that in which the offending judgment was rendered. Roach, 673 So.2d at 694; Knight, 566 So.2d at 137. The limitation envisioned by comment (d) to LSA-C.C.P. art. 2004 prohibits the issue from being raised by way of an affirmative defense, such as in the answer or by exception. Clearly, any of those methods would be a collateral attack, that is, an attempt to impeach the decree in a proceeding not instituted for the express purpose of annulling the judgment. Knight, 566 So.2d at 137; see Roach, 673 So.2d at 693-94; Succession of Schulz, 622 So.2d 693, 696 n. 3 (La.App. 4th Cir.1993), writ denied, 93-2605 (La.1/13/94), 631 So.2d 1161. The reason for this rule is that a relative nullity involves a factual issue which must be proven by evidence placed in the record. Ledford, 507 So.2d at 11.

10Smith v. LeBlanc, 2006-0041, pp. 6-7 (La.App. 1 Cir. 8/15/07), 966 So.2d 66, 71-72.

Hence, the only exception recognized by our jurisprudence is that the validity of a final judgment may be collaterally attacked, by a party having proper standing to attack the judgment of default, provided that the invalidity of the judgment is absolute and patent on the face of the record. Particularly, a party affected by an absolutely null judgment may seek to have the default judgment annulled at any time, and in any court. However, where an appellant claims that a default judgment was obtained by fraud or ill practices, he must make a direct attack on the judgment by an action in nullity. “A default judgment obtained by fraud or ill practices is not an absolute nullity.” Smith, p. 6, at 966 So.2d at 76. As such, a relative nullity must be properly decreed within time prescribed, and such grounds must be asserted in a direct action and not raised collaterally. Id.

It is critical that we make the important distinction of the rights reserved for a party with proper standing to collaterally attack the judgment, compared to the rights of Ms. Mitchell. This Court has expressly stated,

The “legal right” of which a litigant must be deprived to have a judgment annulled on grounds of ill practices is the opportunity to appear and assert a defense; however, before the reviewing court can annul the judgment, it must examine the case from an equitable viewpoint to determine whether the party seeking annulment has met the burden of showing how he was prevented or excused from asserting his claims or defenses.

CA One/Pampy’s v. Brown, 2007-1377, p. 6 (La.App. 4 Cir. 4/2/08), 982 So.2d 909, 913-914.

Neither Ms. Mitchell nor Mortgage Electronic sought to annul the default judgment in the district court. Nevertheless, Mortgage Electronic would have to had pursued a timely nullity action, which, had it been a In successful attack, would have inured to Ms. Mitchell’s benefit. However, for Ms. Mitchell to attack the judgment, specifically arguing those defenses which might have been asserted by Mortgage Electronic is, by all accounts, far-reaching.

In the case sub judice, Ms. Mitchell attempts to attack the validity of the default judgment, but she, prior to the filing of the instant matter, never availed herself of previous opportunities to attack the action to quiet tax title prior to the district court’s rendering of the default judgment. Particularly: (1) Ms. Mitchell failed to file an answer or any other responsive pleadings, in an effort make an appearance on her own behalf; (2) she failed to timely file any petition to nullify the judgment, after the issuance of the default judgment; and (3) she failed in the case sub judice to provide convincing arguments which would lead this Court to the conclusion that her rights have been prejudiced by the district court’s rendering of the default judgment — are all fatal to her arguments that this Court should reverse the district court’s judgment. Clearly, “[i]n order to nullify a default judgnent one must demonstrate how he was prevented or excused from asserting his defenses.” Jones v. Decuers, 320 So.2d 348, 350 (La.App. 4 Cir.1975).

This matter becomes more convoluted considering that Mortgage Electronic has never filed for a motion for new trial, an action to nullify the default judgment, nor has Mortgage Electronic appealed the district court’s judgment of default on its own behalf. Furthermore, Ms. Mitchell cannot assert the arguments on behalf of Mortgage Electronic in the instant appeal. Our jurisprudence has consistently held that a judgment by default against one defendant, not appealed from, is held to be final. See Campti Motor Co. v. Jolley, 10 La.App. 287, 288, 120 So. 684, 685 (2 Cir.1929).

112The Court notes, again, that while Ms. Mitchell vehemently attacks the validity of the default judgment, none of these arguments were raised by Mortgage Electronic. Mortgage Electronic was properly served with the petition and citation of the pending action. Mortgage Electronic, while properly served, never filed an answer, and' — most obvious — is that Mortgage Electronic has not attacked the validity of the default judgment entered by the district court either by filing a petition for nullity or a motion for new trial, nor by appealing the judgment of default.

While a default judgment may be attacked for procedural defects and vices of form, or ill practices, a defendant who fails to properly make an appearance of record, once properly served, has received adequate notice that a legal process has been initiated against him that may affect his rights. If that defendant fails to take any action ie., by filing a responsive pleading, then a plaintiff may proceed with obtaining a preliminary default, and then after the appropriate legal delays, a judgment of default may be properly confirmed against the defendant. In the matter sub judice, we have no remedy to offer Ms. Mitchell because her failure to make any appearances resulted in a properly obtained judgment of default — against her.

Hence, considering that the confirmation and eventual entry of the judgment of default against Ms. Mitchell was procedurally valid, and further considering that Ms. Mitchell has not offered any argument challenging the invalidity of the default entered against her, then this Court must find that the district court did not err insofar as entering the preliminary default against her. Essentially, this Court cannot substitute Ms. Mitchell as the 113proper party to bring an action to nullify a default judgment that was properly entered against her for her failure to take preemptive acts to challenge the entry of default after she was properly served with the citation and petition.

In her second and third assignments of error, Ms. Mitchell argues that the district court erred in confirming a default judgment without an evidentiary hearing in open court pursuant to La. C.C.P. art. 1702(C), and that the district court erred in confirming a default judgment without competent evidence proving a prima facie case, arguing specifically that in the instant case, Mooring filed affidavits of its manager and its attorney into the record in an attempt to confirm the default.

However, considering that we have already concluded that the collateral attack of the default judgment cannot be asserted by Ms. Mitchell, we pretermit discussion of all other issues raised by Ms. Mitchell in this appeal.

DECREE

The judgment of the district court is affirmed.

AFFIRMED.

TOBIAS, J., dissents and assigns reasons.

TOBIAS, J.,

dissents and assigns reasons.

11 Because my view of the record on appeal and the law differs from that of the majority, I respectfully dissent.

Mooring Financial Corporation 401 (k) Profit Sharing Plan (“Mooring”) commenced its suit on 19 March 2008 against Cynthia M. Mitchell (“Mitchell”) (the alleged successor in interest to PM Properties, LLC) and Mortgage Electronics Registration Systems, Inc. (“Mortgage Electronics”) to quiet title to immovable property located at 3031-15 St. Philip Street, New Orleans (“the property”), pursuant to La. R.S. 47:2228, et seq., and La. Const, art. VII, § 25. Mooring had purchased the property at a tax sale in 2002 and obtained a tax sale deed on 31 July 2002 that was duly recorded in the conveyance records of Orleans Parish. The tax sale deed listed the record owner of the property as Mitchell; Mortgage Electronics held a mortgage on the property.

Sei’vice of the suit upon Mitchell was personally made by the St. Tammany Parish sheriffs office on 26 March 2008. Service was made upon Mortgage Electronics in Flint, Michigan, by long-arm service pursuant to La. R.S. 13:3204 |2and La. 13:3205 (certified mail) on 9 April 2008. Neither Mitchell nor Mortgage Electronics filed an answer.

On 6 May 2008, an affidavit attesting to service signed by Lisa Ferrara, a non-attorney-at-law, but notarized by Mooring’s counsel, was filed in the court record. The trial court signed a default on 27 May 2008. A judgment confirming the default was signed on 9 July 2008. Evidence submitted in support of the |sconfirmation of the default consisted of an affidavit of “correctness/prima facie case” and of non-military service signed by the manager of Mooring, a certificate of Mooring’s attorney and an La. C.C.P. art. 1702 B(2) affidavit. No live evidence was presented.

No service of the judgment confirming the default was made upon either Mitchell or Mortgage Electronics. La. C.C.P. art. 1701 B.

On 18 August 2008, more than 37 days following the rendition of the judgment, Mitchell filed a motion for suspensive appeal. The motion was granted that same day and a $5,000.00 bond was posted by Mitchell pursuant to the order of appeal. Although Mitchell’s motion for suspensive appeal was untimely for purposes of a suspensive appeal, La. C.C.P. art. 2123 A, the appeal was timely for a devolutive appeal and the suspensive appeal automatically converted to a devolutive appeal according to our jurisprudence. Franco v. Franco, 04-0967, p. 14 (La.App. 4 Cir. 7/28/04), 881 So.2d 131, 139, citing Touzet v. V.S.M. Seafood Services, Inc., 96-0225, p. 2 (La.App. 4 Cir. 3/27/96), 672 So.2d 1011, 1012 and Lakewind East Apartments v. Poree’, 629 So.2d 422, 424 (La.App. 4th Cir.1993). Appeals are favored in our law. Franco, p. 14, 881 So.2d at 139; Good v. Saia, 07-0145, p. 5 (La.App. 4 Cir. 9/12/07), 967 So.2d 1161, 1165. I therefore find the majority’s discussion of the filing of a petition for nullity of judgment pursuant to La. C.C.P. art. 2001, et seq., misplaced for the appeal as filed was timely.

I find that the entry of the default against Mortgage Electronics was premature. La. R.S. 13:3205 specifically states that the default may not be entered until thirty days after the affidavit of service is filed. The affidavit was filed on 6 May 2008; the first day that a default could be entered against Mortgage Electronics was therefore 5 June 2008. The default of 27 May 2008 was therefore Lpremature by several days. Such makes the default fatally defective and invalidates the subsequent judgment of 9 July 2008. I find nothing in La. R.S. 47:2228 (quoted verbatim infra) that shortens the thirty day period for entry of a default; rather the ten day period for prescriptive titles relates only to the delay for answering suit. The controlling period for entry of the default is contained within the specific statute dealing with the long-arm statute, La. R.S. 13:3205, to-wit, thirty days. (The specific statute dealing with entry of defaults when service is made by long-arm service prevails over the general statute dealing with service when made by a Louisiana sheriff.)

La. C.C.P. arts. 1701, 1702, and 1702.1 provide the methods relating to the entry of a default and the confirmation thereof. They read as follows:

Art. 1701. Judgment by default
A. If a defendant in the principal or incidental demand fails to answer within the time prescribed by law, judgment by default may be entered against him. The judgment may be obtained by oral motion in open court or by written motion mailed to the court, either of which shall be entered in the minutes of the court, but the judgment shall consist merely of an entry in the minutes.
B. When a defendant in an action for divorce under Civil Code Article 103(1), by sworn affidavit, acknowledges receipt of a certified copy of the petition and waives formal citation, service of process, all legal delays, notice of trial, and appearance at trial, a judgment of default may be entered against the defendant the day on which the affidavit is filed. The affidavit of the defendant may be prepared or notarized by any notary public. The judgment may be obtained by oral motion in open court or by written motion mailed to the court, either of which shall be entered in the minutes of the court, but the judgment shall consist merely of an entry in the minutes. Notice of the signing of the final judgment as provided in Article 1913 is not required.

Art. 1702. Confirmation of default judgment

A. A judgment of default must be confirmed by proof of the demand sufficient to establish a prima facie case. If no answer is filed timely, this confirmation may | abe made after two days, exclusive of holidays, from the entry of the judgment of default. When a judgment of default has been entered against a party that is in default after having made an appearance of record in the case, notice of the date of the entry of the judgment of default must be sent by certified mail by the party obtaining the judgment of default to counsel of record for the party in default, or if there is no counsel of record, to the party in default, at least seven days, exclusive of holidays, before confirmation of the judgment of default.
B. (1) When a demand is based upon a conventional obligation, affidavits and exhibits annexed thereto which contain facts sufficient to establish a prima facie case shall be admissible, self-authenticating, and sufficient proof of such demand. The court may, under the circumstances of the case, require additional evidence in the form of oral testimony before entering judgment.
(2) When a demand is based upon a delictual obligation, the testimony of the plaintiff with corroborating evidence, which may be by affidavits and exhibits annexed thereto which contain facts sufficient to establish a prima facie case, shall be admissible, self-authenticating, and sufficient proof of such demand. The court may, under the circumstances of the case, require additional evidence in the form of oral testimony before entering judgment.
(3) When the sum due is on an open account or a promissory note or other negotiable instrument, an affidavit of the correctness thereof shall be prima facie proof. When the demand is based upon a promissory note or other negotiable instrument, no proof of any signature thereon shall be required.
C. In those proceedings in which the sum due is on an open account or a promissory note, other negotiable instrument, or other conventional obligation, or a deficiency judgment derived therefrom, including those proceedings in which one or more mortgages, pledges, or other security for said open account, promissory note, negotiable instrument, conventional obligation, or deficiency judgment derived therefrom is sought to be enforced, maintained, or recognized, or in which the amount sought is that authorized by R.S. 9:2782 for a check dishonored for nonsufficient funds, a hearing in open court shall not be required unless the judge, in his discretion, directs that such a hearing be held. The plaintiff shall submit to the court the proof required by law and the original and not less than one copy of the proposed final judgment. The judge shall, within seventy-two hours of receipt of such submission from the clerk of court, sign the judgment or direct that a hearing be held. The clerk of court shall certify that no answer or other pleading has been filed by the defendant. The minute clerk shall make an entry showing the dates of ^receipt of proof, review of the record, and rendition of the judgment. A certified copy of the signed judgment shall be sent to the plaintiff by the clerk of court.
D. When the demand is based upon a claim for a personal injury, a sworn narrative report of the treating physician or dentist may be offered in lieu of his testimony.
E.Notwithstanding any other provisions of law to the contrary, when the demand is for divorce under Civil Code Article 103(1), whether or not the demand contains a claim for relief incidental or ancillary thereto, a hearing in open court shall not be required unless the judge, in his discretion, directs that a hearing be held. The plaintiff shall submit to the court an affidavit specifically attesting to and testifying as to the truth of all of the factual allegations contained in the petition, and shall submit the original and not less than one copy of the proposed final judgment. If no answer or other pleading has been filed by the defendant, the judge shall, after two days, exclusive of holidays, of entry of a preliminary default, render and sign the judgment or direct that a hearing be held. The minutes shall reflect rendition and signing of the judgment. [Emphasis supplied.]
Art. 1702.1. Confirmation of default judgment without hearing in open court; required information; certifications
A. When the plaintiff seeks to confirm a default judgment as provided in Article 1702(B)(1) and (C), along with any proof required by law, he or his attorney shall include in an itemized form with the motion and judgment a certification that the suit is on an open account, promissory note, or other negotiable instrument, on a conventional obligation, or on a check dishonored for nonsufficient funds, and that the necessary invoices and affidavit, note and affidavit, or check or certified reproduction thereof are attached. If attorney fees are sought under R.S. 9:2781 or 2782, the attorney shall certify that fact and that a copy of the demand letter and if required, the return receipt showing the date received by the debtor are attached and that the number of days required by R.S. 9:2781(A) or 2782(A), respectively, have elapsed before suit was filed.
B. The certification shall indicate the type of service made on the defendant, the date of service, and the date a preliminary default was entered, and shall also include a certification by the clerk that the record was examined by the clerk, including therein the date of the examination and a statement that no answer or other opposition has been filed.

| ^Because Moorings’ claim was a suit to quiet title, the confirmation of the default required live testimony because it did not fall within one of the exceptions in La. C.C.P. art. 1702, where live testimony is not required. Further, although Mooring alleged in its petition that Mitchell acquired the property by an “instrument” dated 20 March 2007 and recorded in the Orleans Parish Conveyance Office, the record is devoid of that “instrument.” Further, the record on appeal is devoid of evidence of Mortgage Electronics’ encumbrance or interest in this litigation.

La. R.S. 47:2228 set forth the procedures for quieting title for tax sales. Specifically, La. R.S. 47:2228 states:

After the lapse of three years from the date of recording the tax deed in the conveyance records of the parish where such property is situated, the purchaser, his heirs or assigns, may institute suit by petition and citation as in ordinary actions against the former proprietor or proprietors of the property, in which petition must appear a description of the property, mention of the time and place of the sale and name of officer who made same, reference to page of record book and date of recording tax deed, notice that petitioner is owner of the said property by virtue of said tax sale, and notice that the title will be confirmed unless a proceeding to annul is instituted within six months from date of service of the petition and citation. This suit shall be brought in the parish where the property is situated unless it lies in two or more parishes, in which case this suit may be instituted in either of such parishes. The petition and citation shall be served as in ordinary suits; provided, that if the former proprietor be a nonresident of the state, or unknown, or his residence be unknown, the court shall appoint a curator ad hoc to represent him and receive service, and said curator shall receive for his services a reasonable fee to be fixed by the court in each suit, the same to be taxed as costs of suit. After the lapse of six months from the date of service of petition and citation, if no proceeding to annul the sale has been instituted, judgment shall be rendered quieting and confirming the title.
In all cases where tax titles have been quieted by prescription of five years under the provisions of Section | K25 of Article VII of the Constitution of 1974, the |flpurchaser or his heirs or assigns may, if he or they so desire, either obtain a judgment of the court confirming the title by suit in the manner and form as hereinabove set out, except the delay for answer shall be ten days instead of six months, or the purchaser or his heirs or assigns may, at his or their option, quiet the title by monition proceeding, as provided by law relative to sheriffs sales and tax sales; provided that the failure to bring suit shall in no manner affect such prescriptive titles.
Nothing in this Section shall be construed to affect in any way, the principle that as to a tax debtor-owner in possession, prescription does not begin against him and in favor of the tax title purchaser until such tax debtor-owner has been first dispossessed.

I find nothing in our law that allows Mooring to avoid following the precise procedures set forth in La. C.C.P. art. 1702. In the absence of not presenting live testimonial evidence, essentially tracking the language in the affidavits that Mooring did in fact present, and offering and introducing into evidence a certified copy the tax deed, I find the judgment of 9 July 2008 fatally defective having not been confirmed with competent evidence.

Moreover, it is clear from the debates of the Louisiana Constitutional Convention of 1973 on that which became ultimately became article VII, § 25, and article I, § 4 of the 1974 constitution that the delegates intended to make it difficult to dispossess owners of property; strict adherence to procedural law was effectively mandated. The same rule applied under Article 10, § 11 of the 1921 Louisiana Constitution, a provision adopted during the depression to make it more difficult for creditors to seize the property of struggling debtors.

| mMooring notes in its appellate brief that Mitchell should not have standing to contest the judgment of 9 July 2008. I respectfully disagree. First, one must read the default of 27 May 2008 and the judgment of 9 July 2008 as a whole. The judgment affects both Mitchell and Mortgage Electronics. I do not find either clearly divisible. Second, should Mitchell be dispossessed of her title to the property, she still owes the unpaid portion of the debt to Mortgage Electronics pursuant to the promissory note that she presumably signed with them.

Accordingly, I would reverse the judgment of the trial court quieting Mooring’s title to the property and remand this matter to the trial court for further proceedings.

      . Note, La. R.S. 47:2228, §§ 2221 to 2230 were repealed by Acts 2008, No. 819, § 2, eff. Jan. 1, 2009.

      . La. R.S. 13:3204, titled, Service of process, provides:
      A.In a suit under R.S. 13:3201, a certified copy of the citation or the notice in a divorce under Civil Code Article 102 and of the petition or a certified copy of a contradictory motion, rule to show cause, or other pleading filed by the plaintiff in a summary proceeding under Code of Civil Procedure Article 2592 shall be sent by counsel for the plaintiff, or by the plaintiff if not represented by counsel, to the defendant by registered or certified mail, or actually delivered to the defendant by commercial courier, when the person to be served is located outside of this state or by an individual designated by the court in which the suit is filed, or by one authorized by the law of the place where the service is made to serve the process of any of its courts of general, limited, or small claims jurisdiction.
      B. If service of process cannot be made on the nonresident by registered or certified mail or by actual delivery, the court shall order that service of process be made on an attorney at law appointed to represent the defendant pursuant to Code of Civil Procedure Article 5091.
      C. Service of process so made has the same legal force and validity as personal service on the defendant in this state.
      D. For purposes of this Section, a “commercial courier” is any foreign or domestic business entity having as its primary purpose the delivery of letters and parcels of any type, and which:
      (1) Acquires a signed receipt from the addressee, or the addressee’s agent, of the letter or parcel upon completion of delivery-
      (2) Has no direct or indirect interest in the outcome of tire matter to which the letter or parcel concerns.

      . Pursuant to La. R.S. 13:3205, entitled, Default judgment; hearings; proof of seivice of process:

      No default judgment can be rendered against the defendant and no hearing may be held on a contradictory motion, rule to show cause, or other summary proceeding, except for actions pursuant to R.S. 46:2131 et seq., until thirty days after the filing in the record of the affidavit of the individual who cither:
      (1)Mailed the process to the defendant, showing that it was enclosed in an envelope properly addressed to the defendant, with sufficient postage affixed, and the date it. was deposited in the United States mail, to which shall be attached the return receipt of the defendant; or
      (2) Utilized the services of a commercial courier to make delivery of the process to the defendant, showing the name of the commercial courier, the date, and address at which the process was delivered to the defendant, to which shall be attached the commercial courier’s confirmation of delivery; or
      (3) Actually delivered the process to the defendant, showing the date, place, and manner of delivery.

      . The Supreme Court, in Power v. Marketing Direct, Inc. v. Foster, 05-2023, p. 6, (La.9/6/06), 938 So.2d 662, 667, noted "that the term ‘ill practices' as used in La.Code Civ. Proc Ann. art. 2004, "is not limited to actual fraud or wrongdoing, but encompasses all situations involving the use of some improper practice or procedure, even innocently, to deprive the party cast in judgment some legal right and where enforcement of the judgment would be unconscionable and inequitable.” Id., p. 16, 938 So.2d at 673.

      . La.C.C.P. art. 1702(C) reads: "In those proceedings in which the sum due is on an open account or a promissory note, other negotiable instrument, or other conventional obligation, or a deficiency judgment derived therefrom, including those proceedings in which one or more mortgages, pledges, or other security for said open account, promissory note, negotiable instrument, conventional obligation, or deficiency judgment derived therefrom is sought to be enforced, maintained, or recognized, or in which the amount sought is that authorized by R.S. 9:2782 for a check dishonored for nonsufficient funds, a hearing in open court shall not be required unless the judge, in his discretion, directs that such a hearing be held. The plaintiff shall submit to the court the proof required by law and the original and not less than one copy of the proposed final judgment. The judge shall, within seventy-two hours of receipt of such submission from the clerk of court, sign the judgment or direct that a hearing be held. The clerk of court shall certify that no answer or other pleading has been filed by the defendant. The minute clerk shall make an entry showing the dates of receipt of proof, review of the record, and rendition of the judgment. A certified copy of the signed judgment shall be sent to the plaintiff by the clerk of court.”

      . La. R.S. 13:3204 reads:
      A.In a suit under R.S. 13:3201, a certified copy of the citation or the notice in a divorce under Civil Code Article 102 and of the petition or a certified copy of a contradictory motion, rule to show cause, or other pleading filed by the plaintiff in a summary proceeding under Code of Civil Procedure Article 2592 shall be sent by counsel for the plaintiff, or by the plaintiff if not represented by counsel, to die defendant by registered or certified mail, or actually delivered to the defendant by commercial courier, when the person to be served is located outside of this state or by an individual designated by the court in which the suit is filed, or by one authorized by the law of the place where the service is made to serve the process of any of its courts of general, limited, or small claims jurisdiction.
      B. If seivice of process cannot be made on the nonresident by registered or certified mail or by actual delivery, the court shall order that service of process be made on an attorney at law appointed to represent the defendant pursuant to Code of Civil Procedure Article 5091.
      C. Service of process so made has the same legal force and validity as personal sendee on the defendant in this state.
      D. For purposes of this Section, a “commercial courier" is any foreign or domestic business entity having as its primary purpose the delivery of letters and parcels of any type, and which:
      (1) Acquires a signed receipt from the addressee, or the addressee’s agent, of the letter or parcel upon completion of delivery.
      (2) Has no direct or indirect interest in the outcome of the matter to which the letter or parcel concerns.
      La. R.S. 13:3205 reads:
      No default judgment can be rendered against the defendant and no hearing may be held on a contradictory motion, rule to show cause, or other summary proceeding, except for actions pursuant to R.S. 46:2131 et seq., until thirty days after the filing in the record of the affidavit of the individual who either:
      (1) Mailed the process to the defendant, showing that it was enclosed in an envelope properly addressed to the defendant, with sufficient postage affixed, and the date it was deposited in the United Stales mail, to which shall be attached the return receipt of the defendant; or
      (2) Utilized tire services of a commercial courier to make delivery of the process to the defendant, showing the name of the commercial courier, the date, and address at which the process was delivered to the defendant, to which shall be attached the commercial courier's confirmation of delivery; or
      (3) Actually delivered the process to the defendant, showing the date, place, and manner of delivery. [Emphasis supplied.]

      . The method and procedures for quieting title were changed effective 1 January 2009 by La. Acts 2008, No. 819. The prior law applies to the case at bar.

      . La. Const, art. VII, § 25 states:
      (A) Tax Sales. (1) There shall be no forfeiture of property for nonpayment of taxes. However, at the expiration of the year in which the taxes are due, the collector, without suit, and after giving notice to the delinquent in the manner provided by law, shall advertise for sale the property oil which the taxes are due. The advertisement shall be published in the official journal of the parish or municipality, or, if there is no official journal, as provided by law for sheriffs' sales, in the manner provided for judicial sales. On the day of sale, the collector shall sell the portion of the property which the debtor points out. If the debtor does not point out sufficient property, the collector shall sell immediately the least quantity of property which any bidder will buy for die amount of the taxes, interest, and costs. The sale shall be without appraisement. A tax deed by a tax collector shall be prima facie evidence that a valid sale was made.
      (2) If property located in a municipality with a population of more than four hundred fifty thousand persons as of the most recent federal decennial census fails to sell for the minimum required bid in the tax sale, the collector may offer the property for sale at a subsequent sale with no minimum required bid. The proceeds of the sale shall be applied to the taxes, interest, and costs due on the property, and any remaining deficiency shall be eliminated from the tax rolls.
      (B) Redemption. (1) The property sold shall be redeemable for three years after the date of recordation of the tax sale, by paying the price given, including costs, five percent penalty thereon, and interest at the rate of one percent per month until redemption.
      (2) In the city of New Orleans, when such property sold is residential or commercial property which is abandoned property as defined by > R.S. 33:4720.12(1) or blighted property as defined by Act 155 of the 1984 Regular Session, it shall be redeemable for eighteen months after the date of recordation of the tax sale by payment in accordance with Subparagraph (1) of this Paragraph.
      (C) Annulment. No sale of property for taxes shall be set aside for any cause, except on proof of payment of the taxes prior to the date of the sale, unless the proceeding to annul is instituted within six months after service of notice of sale. A notice of sale shall not be served until the final day for redemption has ended. It must be served within five years after the date of the recordation of the tax deed if no notice is given. The fact that taxes were paid on a part of the property sold prior to the sale thereof, or that a part of the property was not subject to taxation, shall not be cause for annulling the sale of any part thereof on which the taxes for which it was sold were due and unpaid. No judgment annulling a tax sale shall have effect until the price and all taxes and costs are paid, and until ten percent per annum interest on the amount of the price and taxes paid from date of respective payments are paid to the purchaser; however, this shall not apply to sales annulled because the taxes were paid prior to the date of sale.
      (D) Quieting Tax Title. The manner of notice and form of proceeding to quiet tax titles shall be provided by law.
      (E) Movables; Tax Sales. When taxes on movables are delinquent, the tax collector shall seize and sell sufficient movable property of the delinquent taxpayer to pay the tax, whether or not the property seized is the property which was assessed. Sale of the property shall be at public auction, without appraisement, after ten days advertisement, published within ten days after date of seizure. It shall be absolute and without redemption.
      If the tax collector can find no corporeal movables of the delinquent to seize, he may levy on incorporeal rights, by notifying the debtor thereof, or he may proceed by summary rule in the courts to compel the delinquent to deliver for sale property in his possession or under his control.
      (F) Postponement of Taxes. The legislature may postpone the payment of taxes, but only in cases of overflow, general conflagration, general crop destruction, or other public calamity, and may provide for the levying, assessing, and collecting of such postponed taxes. In such case, the legislature may authorize the borrowing of money by the state on its faith and credit, by bond issue or otherwise, and may levy taxes, or apply taxes already levied and not appropriated, to secure payment thereof, in order to create a fund from which loans may be made through the Interim Emergency Board to the governing authority of the parish where the calamity occurs. The money loaned shall be applied to and shall not exceed the deficiency in revenue of the parish or a political subdivision therein or of which the parish is a part, caused by postponement of taxes. No loan shall be made to a parish governing authority without the approval of the Interim Emergency Board.


source: Caselaw Access Project

author: MICHAEL E. KIRBY, Judge.

license: Public Domain

text:
    Robert J. YOUNG, Jr., Husband of and Anne S. Young v. UNITED STATES AUTOMOTIVE ASSOCIATION CASUALTY COMPANY Robert J. Young, Jr., Husband of and Anne S. Young v. United Services Automobile Association Robert J. Young, Jr., Husband of/and Anne S. Young v. United Services Automobile Association Casualty Company.
    Nos. 2007-CA-1590, 2007-CA-1591, 2007-CA-0543.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 10, 2009.

      Robert J. Young III, Young, Richaud & Myex’s, LLC, Metaixie, LA, and The Young Firm, New Orleans, LA, for Plaintiffs/Ap-pellees.
    James R. Nieset, Jr., Michael J. Madere, Ralph J. Aucoin, Jr., Hoy Hughes, Porteous, Hainkel & Johnson, LLP, New Orleans, LA, for United Services Automobile Association.
    (Court composed of Judge JAMES F. McKAY, III, Judge MICHAEL E. KIRBY, Judge MAX N. TOBIAS, JR., Judge DAVID S. GORBATY, Judge EDWIN A. LOMBARD).
   MICHAEL E. KIRBY, Judge.

Lin this consolidated appeal, the defendant, United Services Automobile Association (“USAA” or “insurer”) appeals the granting of a judgment notwithstanding the verdict (“JNOV”) in favor of the plaintiffs, Bob and Anne Young (“the Youngs”). Because we find the trial court erred in granting the JNOV, we reverse and reinstate the jury’s verdict.

USAA issued a policy of homeowner’s insurance to the Youngs for their house located on the Gulf Coast in Pass Christian, Mississippi. The insurance policy, an “all risk” policy covering all perils to the Youngs’ home except those specifically excluded, provided a limit of $353,000.00 for the dwelling and a limit of $264,750.00 for damage to personal property (contents).

I ¡.The Youngs’ home, built upon a number of brick piers, was destroyed during Hurricane Katrina. A factual dispute arose between the Youngs and USAA as to whether wind or storm surge (water) forced the house off of its piers. After submission of the Young’s claim and an investigation, USAA paid the Youngs $17,329.22 for the dwelling, $15,494.37 for the contents, and $35,300.00 for other structures. These amounts, USAA determined, covered the damages to the Youngs’ property caused by wind.

At trial, the parties presented expert and factual witness testimony as well as photographic evidence. After the presentation of evidence, the trial court submitted the following six (6) Interrogatories to the jury:

1. Do you find that USAA failed to pay for any damage to the plaintiffs’ house caused by the wind or a combination of wind and water?
Yes: _No: _
If yes, please proceed to number 2. If no, please proceed to number 5.
2. What amount of money do you find USAA failed to pay for damage to the plaintiffs’ house caused by wind or a combination of wind and water?
$-
3. Do you find that USAA failed to pay for any damage to the plaintiffs’ contents caused by the wind or a combination of wind and water?
Yes: _No: _
If yes, please proceed to number 4. If no, please proceed to number 5.
1 <A. What amount of money do you find USAA failed to pay for any damage to plaintiffs’ contents caused by wind or a combination of wind and water?
$-
5. Do you find by clear and convincing evidence that USAA is liable to the plaintiffs for punitive damages because it lacked a legitimate or arguable basis and was grossly negligent rendered a willful, wanton or reckless disregard for the rights of the Youngs in failing to pay for damage to the plaintiffs’ other structures?
Yes: _No: _
If yes, please proceed to number 6. If no, please sign the bottom of this form and return to the courtroom.
6. What amount of money do you award in punitive damages?
$-

The jury responded ‘Yes” to the first interrogatory and thus proceeded to interrogatory number two, responding with the sum of $123,500.00 for the amount of money USAA failed to pay for damage to the Youngs’ house caused by wind or a combination of wind and water. The jury then answered “No” to the third interrogatory and awarded no additional damages for the Youngs’ contents in response to the fourth interrogatory. As to punitive damages, the jury responded “No” to the fifth interrogatory, pretermitting an answer to the sixth interrogatory.

On February 2, 2007, the trial court rendered a judgment in accord with the jury’s verdict, awarding the sum of $123,500.00 in favor of the Youngs and against USAA. Thereafter, the Youngs filed a motion for JNOV pursuant to La. C.C.P. art. 1811. On August 13, 2007, the trial court rendered a JNOV, awarding the |4Youngs damages in the amount of $374,150.41, plus judicial interest thereon from the date of judicial demand. DISCUSSION

The issue in this appeal is whether the trial court properly granted the JNOV. The Louisiana Supreme Court in Scott v. Hospital Service District No. 1 of Parish of St. Charles, 496 So.2d 270 (La.1986) and in Anderson v. New Orleans Public Service, Inc., 583 So.2d 829 (La.1991), set forth the criteria to be used in determining when a JNOV is proper:

A JNOV is warranted when the facts and inferences point so strongly and overwhelmingly in favor of one party that the court believes that reasonable men could not arrive at a contrary verdict. The motion should be granted only when the evidence points so strongly in favor of the moving party that reasonable men could not reach different conclusions, not merely when there is a preponderance of evidence for the mover. If there is evidence opposed to the motion which is of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motion should be denied. Scott, supra. In making this determination, the court should not evaluate the credibility of the witnesses, and all reasonable inferences or factual questions should be resolved in favor of the non-moving party-

Anderson, supra, at 832

In Davis v. Lazarus, 2004-0582, p. 8 (La.App. 4 Cir. 3/8/06), 927 So.2d 456, 461, we cited Anderson, supra, for the appellate standard of review of a JNOV, stating:

In reviewing a JNOV, the appellate court must first determine if the trial court erred in granting the JNOV. This is done by using the aforementioned criteria just as the trial judge does in deciding whether to grant the | ¿motion or not, i.e. do the facts and inferences point so strongly and overwhelmingly in favor of the moving party that reasonable men could not arrive at a contrary verdict? If the answer to that question is in the affirmative, then the trial judge was correct in granting the motion. If, however, reasonable men in the exercise of impartial judgment might reach a different conclusion, then it was error to grant the motion and the jury verdict should be reinstated.

In ruling on a motion for JNOV, a court may not weigh the evidence or substitute its judgment for that of the jury. In re New Orleans Train Car Leakage Fire Litigation, 2000-1919, p. 6 (La.App. 4 Cir. 4/20/05), 903 So.2d 9, 15; Coleman v. Deno, 99-2998, p. 22 (La.App. 4 Cir. 4/25/01), 787 So.2d 446, 465.

The Youngs argue that the trial court properly granted the JNOV because the jury’s verdict was inconsistent with the facts and evidence presented at trial. They claim the jury erred in awarding $123,500.00 for additional wind damage to the house, yet none for the loss of their contents, because, but for the wind shifting the house off its foundation and onto the ground, water would not have entered the structure, destroying the contents therein. The Youngs further contend that the jury should have awarded the full policy limits to them once it answered “Yes” to the first interrogatory given the undisputed evidence that the house was a total loss. They point out that no evidence was presented at trial which supports the jury’s finding that their home sustained exactly $123,500.00 in wind damage above and beyond the net sum of $17,329.22 already paid by USAA.

[ f,Mississippi substantive law applies to this case. Under Mississippi law, the insurer has the burden of proving what portion of the total loss was attributable to water damage and was thus within the water damage exclusion of the policy. Leonard v. Nationwide Mutual Insurance Co., 438 F.Supp.2d 684, 694-95 (S.D.Miss.2006), citing Commercial Union Insurance Co. v. Byrne, 248 So.2d 777 (Miss.1971). “[W]here the insured property sustains damage from both wind (a covered loss) and water (an excluded loss), the insured may recover that portion of the loss which he can prove to have been caused by wind.” Leonard, supra, 438 F.Supp.2d at 695, citing Grace v. Lititz Mutual Insurance Co., 257 So.2d 217 (Miss.1972). “To the extent property is damaged by wind, and is thereafter also damaged by water, the insured can recover that portion of the loss which he can prove to have been caused by wind, but the insurer is not responsible for any additional loss it can prove to have been later caused by water.” Id., citing Lititz Mutual Insurance Co., v. Boatner, 254 So.2d 765 (Miss.1971).

As to the determination of the amount of damages, the Mississippi Supreme Court has explained:

... [W]here it is reasonably certain that damage has resulted, mere uncertainty as to the amount will not preclude the right of recovery or prevent a jury decision awarding damages. This view has been sustained where, from the nature of the case, the extent of the injury and the amount of damage are not capable of exact and accurate proof. Under such circumstances, all that can be required is that the evidence — with such certainty as the nature of the particular case may permit — lay a. | -¡foundation which will enable the trier of facts to make a fair and reasonable estimate of the amount of damage.

Cain v. Mid-South Pump Co., 458 So.2d 1048, 1050 (Miss.1984), citing 22 Am.Jur.2d Damages § 25 (1965) (emphasis added).

Considering the USAA insurance policy at issue and applying Mississippi substantive law to this case, the Youngs may recover only that portion of damages which they proved was caused by wind. Furthermore, USAA is not responsible for any additional loss it proved was later caused by water. After reviewing the record, we find ample evidence was presented at trial from which the jury could conclude that both water and wind^ contributed to the destruction of. the Youngs’ home and the contents therein, and, therefore, the jury properly exercised its discretion in estimating the actual amount of damages.

Joel Dane Wehrman testified at trial as an expert mechanical engineer. USAA hired Jade Engineering, Mr. Wehrman’s employer, to investigate. Mr. Wehrman testified that he found almost no damage upstairs in the house that could be attributable to wind, e.g. no signs of roof uplift or misconnections of the rafters to the wall. He stated that in his opinion the absence of roof uplift precludes strong winds moving a home because strong winds create a negative pressure on the roof. He stated that only gravity and friction was holding this home down and that he found debris underneath the home. His inspection revealed no sign of tornado or structurally damaging wind. He also noted he found water marks inside the home, which indicated flooding.

Michael Rudolph Costelli testified as an expert in civil engineering with an emphasis in structural engineering. Plaintiffs retained his services to do a damage assessment on their home to determine the cause. He testified that when he visited [sthe home on two occasions he found trees broken off near the top, as well as houses completely gone. He performed stability calculations, i.e., measuring applied forces to structures and their stability to them. The home had solid brick piers that were un-reinforced with no anchorage. The home was constructed in a fashion typical to that of the day in which it was built, i.e., 1920s. The mortar for the bricks would have lost some of the lime, rendering more of a sand matrix, weakening the piers. Based upon Mr. Costelli’s calculations the direction (northwesterly) and distance (6-8 feet) of the movement of the home would have corresponded with the winds that were measured in the area due to Hurricane Katrina. He opined that the wind could have caused the home to lift up like a hovercraft and shift off the piers. Mr. Costelli also studied topographic maps of the area as well as the elevation of the Youngs’ home and found it to be around 26 to 27 feet above sea level.

Stephen M. Wistar, a meteorologist employed by AccuWeather, testified as an expert concerning the weather related conditions of the area during Hurricane Katrina. He noted that all the official wind and storm-observing sites failed before the height of the storm, due to destruction or power failure. So, as a meteorologist, he turned to a state of the art model for advanced circulation that uses the air pressure field and the wind field around the hurricane that runs over time and drives the storm surge. He explained that by running that model out over time, one can see how the wind patterns and the water heights change at frequent intervals. The data obtained was adjusted for certain non-scientific observations as well as different kinds of realtime data, such as high water marks. He also used the National Hurricane Center’s published wind fields of Katrina. His research revealed that the highest wind speeds at the house site would have been 140 miles 19per hour and that the peak storm surge would have been 25 feet above sea level, and at that for only about an hour, before dropping back down to 20 feet. Mr. Wistar acknowledged that the level of storm surge affecting Pass Christian would have inundated the piers of the Youngs’ home at some point during the hurricane’s passing. However, he also testified that based on the Fujita Scale, a poorly constructed house could have moved with winds of 103 miles an hour.

Carl Joseph Heitzman, a life-long resident of Bay St. Louis and a general contractor, testified on behalf of the plaintiffs. Contrary to Mr. Wehrman, Mr. Heitzman testified that he had examined many of the homes in his neighborhood which were destroyed during Hurricane Katrina. He testified that it was the lack of what he found inside the Youngs’ home, namely grass, debris, etc., that led him to conclude that them home was not damaged by flooding, so much as by wind. Mr. Heitzman offered a replacement cost of approximately $475,000.00, based upon a $175 per square foot estimate. After adjusting for skyrocketing prices post-Katrina, he totaled the cost to be $552,915.00 for the main home, excluding the garage and other building. Finally, he testified that the floors were not buckled, which was an occurrence he observed in other homes that had floated, and he observed no water line inside the house.

William Kimble, who lived down the block from where the Youngs’ house once stood, testified by video deposition as a fact witness. He stayed in his home throughout the storm, and had 27 inches of water in his home. On cross examination though, plaintiffs’ counsel brought to light that the Kimble home was about 2 feet lower in elevation compared with the Youngs’ home.

Barry Keim, a climatologist, testified as an expert for USAA. According to Mr. Keim, the storm surge by the Youngs’ home during Hurricane Katrina 110measured 26 feet and the sustained winds were only 95 miles per hour. Like Mr. Wistar, the Youngs’ expert, Mr. Keim found that the level of storm surge affecting the area during the hurricane would have inundated the piers of the Youngs’ home.

Mr. Donald F. Hemler, Jr., an employee of USAA, testified that he was the adjuster initially assigned to the Youngs’ claim. He stated that he found water patterns inside the house. Moreover, the water patterns were “swirl marks.” As a building constructor, he opined that if the water patterns had been formed by rain water coming through the roof, then the water marks would have been circular, not swirls. Mr. Hemler noted that he did not complete the adjustment of the claim because of a personal matter that required his return to Pennsylvania. On cross examination though, Mr. Hemler conceded that he initially thought the flood water level had reached the ceiling, a belief that later turned out to be incorrect. Also on cross, Mr. Hemler stated that USAA did not pay the Youngs the $35,000.00 in damages represented by the pool house, garage and fencing destroyed by wind for over a year because of his illegible handwriting. Finally, he testified that had he stayed on this claim, he would have tided to resolve the two different reports between Jade Engineering and Mr. Costelli, instead of just accepting Jade’s $17,000.00 estimate and payment that was made.

A general adjuster for USAA, Mr. Gary Taylor, testified on behalf of his employer. He handled the claim after Mr. Hemler left. He stated that he followed USAA’s expert report from Jade Engineering, and simply sent a check to the Youngs for $17,329.22, which represented the replacement cost of the entire roofing system and ceilings in two rooms that Jade Engineering had stated were damaged by wind. Mr. Taylor admitted that he did this without ever visiting the Youngs’ home because he believed he could rely on the paper documents before | nhim. Later he learned that a garage, pool house, and shed were damaged too, but these were not included in the Jade Engineering report. Nonetheless, he stated that he relied on USAA’s Jade Engineering report and disregarded the Costelli report because he felt his employer’s report was more detailed. He also stated that due to a mistake he did not issue a check as per the insurance contract for 10% ($35,300.00) of the insured value of the structure ($353,000.00) for the loss of detached structures. He stated that he disregarded the Costelli and Heitzman reports because they calculated total replacement cost, and this did not pertain to wind damage.

On cross examination, Mr. Taylor conceded that when he closed the Youngs’ claim on December 10, 2005, he had within his file notes from Mr. Hemler, the Costel-li report and the Heitzman report (dated November 18, 2005) that indicated there were detached structures on the property. Mr. Young himself had told Mr. Hemler to return to the property to look for the garage and pool house. Nevertheless, Mr. Taylor testified he did not learn of these other structures until August of 2006, when USAA’s counsel, Mr. Hemler and other USAA agents had a telephone conference preparing for this litigation. In his defense, Mr. Taylor stated he was overworked and had been assigned around 150-200 claims.

Clearly, the record before us contains fact and opinion testimony as well as documentary evidence from which the jury could reasonably conclude that the storm surge (water) during Hurricane Katrina caused significant damage to the Youngs’ home. Also, the evidence was sufficient for the jury to return a dollar value reflecting the amount of damage it determined was caused by the wind and for which USAA is responsible to pay under the policy. Because the facts and | ^inferences do not point so overwhelmingly in favor of the plaintiffs, we find that the trial court committed legal error when it rendered a JNOV under these facts.

DECREE

Accordingly, for the aforementioned reasons, we reverse the JNOV and reinstate the jury’s verdict.

REVERSED.

      . The trial court rendered the JNOV on August 13, 2007. USAA filed a motion to reconsider the JNOV on August 22, 2007. Before the trial court considered the motion to reconsider, USAA filed a motion and order for suspensive appeal of the August 13, 2007 judgment, which the trial court granted on September 11, 2007. USAA's appeal was lodged in this Court on December 12, 2007, and designated as appeal no. 2007-CA-1590 C/W 2007-CA1591. Meanwhile, the Youngs had filed a motion to dismiss USAA’s motion to reconsider the JNOV, arguing that USAA had abandoned the motion to reconsider when it filed the appeal, citing Head v. Pendleton Memorial Methodist Hospital, 95-0461 (La.App. 4 Cir. 1/31/96), 669 So.2d 504. USAA opposed the motion to dismiss. Following a hearing, the trial court rendered a final judgment on January 3, 2008, dismissing USAA’s motion to reconsider the JNOV, while reserving its right to appeal the August 13, 2007 judgment. Though appeal no. 2007-CA-1590 C/W 2007-CA1591 had been lodged, out of an abundance of caution, on January 31, 2008, USAA filed a second motion for appeal, which the trial court granted. The second appeal was lodged on May 1, 2008 and designated as appeal no. 2008-CA-0543. The Youngs filed a motion to dismiss the second appeal or, alternatively, to consolidate the appeals. In the interest of judicial economy, we hereby consolidate appeal nos. 2007-CA-1590 C/W 2007-CA-1591 with 2008-CA-0543.

      . After considering a motion for partial summary judgment filed by USAA on the issue of whether the substantive law of Mississippi or Louisiana applied to the case, the trial court rendered a judgment on December 8, 2006, holding that Mississippi law applied as Mississippi had a more substantial interest in regulating insurance contracts issued on Mississippi property.


author: MOORE, J.

text:
    D’ARGENT PROPERTIES, LLC and Stratmore, LLC, Plaintiff-Appellants v. CITY OF SHREVEPORT, Defendant-Appellee.
    No. 44,457-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 24, 2009.

      Blanchard, Walker, O’Quin & Roberts, by M. Thomas Arceneaux Jerry Edwards, Shreveport, for Appellants.
    Neil Erwin Law, LLC, by Neil T. Erwin, for Appellee.
    Before BROWN, STEWART and MOORE, JJ.
   MOORE, J.

[ ,The owners, D’Argent Properties LLC and Stratmore LLC, appeal a judgment affirming an action of the Shreveport City Council, which had denied the owners’ site plan to build, as a “use by right,” a Sonic Drive-In on their lot at the entrance to Woodstone Estates Subdivision. For the reasons expressed, we reverse and render.

Factual Background

The owners, own a tract of land at the northeast corner of Pugh Avenue and Stratmore Drive. Pugh Avenue is a frontage road on the east side of Youree Drive, south of LSUS; Stratmore runs perpendicular to Youree. The property is zoned B-3, which expressly permits “use by right” as a restaurant, “including indoor and outdoor dining areas, drive-in, drive-thru, pick-up window, delivery service operations or other exterior service facilities,” to operate from 7 am to midnight. There is a 24-hour Shell/Circle K directly across Stratmore and a nursing home, Heritage Manor Stratmore, immediately to the east of the tract. Further east down Stratmore lie Woodstone Estates and seven gated condominium developments.

With their prospective purchaser, Sonic Corporation, the owners applied to the Metropolitan Planning Commission (“MPC”) for site approval to build a Sonic Drive-In on the tract.

The MPC held a public hearing on February 6, 2008. According to the owners, nearby residents voiced many concerns over the site plan. Representatives of Sonic met with the neighbors and the MPC staff on February 28 to resolve their differences. For instance, the original site plan | gcalled for entrances (“curb cuts”) on both Stratmore and Pugh; Sonic agreed to have no curb cut on Stratmore, only on Pugh. Sonic also agreed to a 10-foot setback, heavy landscaping and a solid-wood 6-foot fence along the tract’s eastern boundary, a small Dumpster with tree shading and more frequent garbage pickups, designated employee parking spaces and a sound system coordinated not to interfere with Heritage Manor’s alarm system.

Even with these changes, the neighbors still opposed the site plan. At the next MPC meeting, on March 5, two neighbors spoke against it, citing increased traffic and a “cruising place” for teenagers. The chairman of the MPC stated that the objections really addressed the B-3 zoning, not this particular site plan. The MPC voted unanimously (8-0) to approve the site plan, with the modifications listed above.

The neighbors appealed to the City Council. The minutes of the council’s April 7 administrative conference show only that the owners’ attorney recapped the MPC’s action.

At the regular council meeting the next day, however, emotions ran high. The owners’ attorney and realtor spoke in favor of the site plan, but four neighbors (including an employee of Heritage Manor) spoke against it. The neighbors also filed three petitions with 275 signatures and numerous letters. These cited diminished property values, increased traffic, the explosion of “eating establishments” in the area, and a negative impact on the quality of life. The chairman of the MPC defended its decision, saying all the objections were to the use, not to the site plan, and that the approval process was not intended to deny a plan that conformed to zoning. He | ¡¡added that zoning hearings are “not a popularity contest,” and it would be a “misuse of authority” to overturn the MPC.

Council member Bryan Wooley, whose district includes this tract, stated that the lot was properly zoned but the city lacked a master plan by which zoning would be revisited regularly, and he would overturn the MPC “for the betterment of the area.” Council member Joyce Bowman stated that she viewed it as her duty to “be consistent with the majority of the citizens,” and she would overturn the MPC. The council then voted 4-3 to overturn the MPC. Members Michael Long and Ron Webb joined the majority; members Calvin Lester, Monty Walford and Joe Shyne voted to uphold.

Action of the District Court

The owners filed this petition for appeal. The matter was submitted on a large trial notebook and argument. In written reasons for judgment, the district court summarized the procedural background, agreeing with the owners that because they submitted a site plan and sought only permitted B-3 use, no ordinance was required. Even so, the court found that the ultimate “legislative prerogative and decision-making authority” lay with the council, not the MPC, citing King v. Caddo Parish Comm’n, 97-1873 (La.10/20/98), 719 So.2d 410. It also cited Shreveport City Code § 106-44, “Planning Commission Approvals,” which states the intent to provide “a safe, efficient, attractive and well-ordered community” based on development that is “designed, constructed, operated and maintained so as to be harmonious and appropriate in appearance with the existing or intended character of the general vicinity.” The court acknowledged that [,|certain council members’ comments did not track § 106-44 “and could have been more carefully crafted and articulated,” but they substantially addressed the valid concern that the plan would not be “harmonious and appropriate” for the character of this “mainly residential neighborhood.” The court also discounted the MPC chairman’s view that overruling the MPC was a misuse of authority. The court concluded that the council based its decision on proper issues and affirmed the decision.

This appeal followed.

The Parties’ Positions

By one assignment of error, the owners urge the district court used factors “outside the scope of the discretion permitted by the City Council to determine the reasonableness of the City Council’s actions.” They contend that the appropriate standard of review is for abuse of discretion under La. R.S. 33:4721. They specifically contend that the council abused its discretion by using the site plan process to amend the ordinance or rezone the property. The site plan met or exceeded all requirements under the applicable ordinances, no zoning change or variance was involved, the owners acceded to every neighborhood request, and the MPC approved the site plan; hence, they argue, the council was without discretion to deny it. They concede that King v. Caddo Parish Comm’n, supra, gives the ultimate decision to the governing authority, not to a zoning board or planning commission. However, they contend that those cases involved requests to change the permitted use of land. They submit that when the applicant wants only to comply with existing zoning, the governing authority should |Rnot have unbridled discretion to deny this permitted use. They conclude that under public pressure, the council “would not have approved any site plan that included a Sonic restaurant,” thus demonstrating an abuse of discretion or arbitrary and capricious conduct on the council’s part.

The city responds that Code § 106^14 calls on the MPC (and, on appeal, the council) to review the development plans for all nonresidential uses “to ensure a safe, efficient, attractive and well-ordered community and best serve the interests of public health, safety and welfare.” Further, § 106-44 authorizes the council to consider whether development is “harmonious and appropriate in appearance with the existing or intended character of the general vicinity” and that it “not be hazardous or disturbing to existing or future nearby uses.” The city submits that the council’s action served these valid objectives, and the district court was not plainly wrong in so finding. The city denies that the council intended a blanket disapproval of any site plan that included a Sonic restaurant. It concludes that the council’s action should be affirmed as it was not a “willful and unreasoning action, absent consideration and in disregard of the facts and circumstances of the case.” Prest v. Parish of Caddo, 41,039 (La.App. 2 Cir. 6/2/06), 930 So.2d 1207.

Discussion

Zoning is a general plan designed to foster improvement by confining certain classes of buildings and uses to certain localities. Jenkins v. St. Tammany Parish Police Jury, 98-2627 (La.7/2/99), 736 So.2d 1287. The powers and duties of local governments with regard to zoning are expressed in La. Const. Art. 6, § 17, which provides in part:

|fiSubject to uniform procedures established by law, a local governmental subdivision may (1) adopt regulations for land use, zoning, and historic preservation, which authority is declared to be a public purpose; (2) create commissions and districts to implement those regulations; (3) review decisions of any such commission; and (4) adopt standards for use, construction, demolition, and modification of areas and structures.

Of special significance to the instant case is the requirement of “uniform procedures established by law.” Zoning regulations must be uniformly applied within each district or zone of the municipality. La. R.S. 33:4722 C; Jenkins v. St. Tammany Parish Police Jury, supra (applying R.S. 33:4780.41, a parallel statute for parishes). Such regulations and procedures must be construed in favor of the use proposed by the owner. Wright v. DeFatta, 244 La. 251, 152 So.2d 10 (1963); City of West Monroe v. Ouachita Ass’n for Retarded Children, 402 So.2d 259 (La.App. 2 Cir.1981). The actions of a zoning commission will not be disturbed on judicial review unless the court finds that they were plainly and palpably unreasonable, arbitrary, an abuse of discretion, or an unreasonable exercise of police power. La. R.S. 33:4726; Jenkins v. St. Tammany Parish Police Jury, supra (applying R.S. 33:4780.40, a parallel statute for parishes).

The Shreveport City Code treats as a “use by right” in a B-3 zone the operation of a “restaurant, including indoor and outdoor dining areas, drive-in, drive-thru, pick-up window, delivery service operations or other exterior service facilities.” Shreveport City Code § 106-678. The code further restricts hours of operation to 7 am to 12 midnight. § 106-684. The parties agree that the owners’ proposed Sonic Drive-In satisfies all aspects of the B-3 code requirements.

[ ^Moreover, all nonresidential developments are subject to review and approval by the MPC before a building permit may be issued. § 106-44(a). The MPC is charged with reviewing “the location of uses with unique characteristics which may be necessary or appropriate within a given district but which might otherwise adversely impact future development, existing nearby properties or the community[.]” Id. Relevant objectives for the proposed development include, but are not limited to:

(1) That it be designed, constructed, operated and maintained so as to be harmonious and appropriate in appearance with the existing or intended character of the general vicinity;
(2) That it not be hazardous or disturbing to existing or future nearby uses, property or persons through activities, processes, materials, equipment or operations that produce excessive traffic, noise, smoke, fumes, glare or odors without adequate means of control[.]

The instant record shows that the MPC worked diligently with the owners and neighbors to remediate all objective complaints about the proposed Sonic Drive-In. This resulted in significant changes to the original site plan, notably moving all curb cuts to Pugh Avenue, the service road; adjusting its intercom system to avoid interference with Heritage Manor; and shielding and shading its trash container. These modifications directly served § 106-44(a)’s guidelines of promoting an appropriate appearance and minimizing traffic and noise. The record does not show that the MPC failed to consider, or improperly applied, any of the guidelines. We cannot affirm the district court’s implicit finding that the MPC’s action was plainly and palpably unreasonable, arbitrary, an abuse of discretion, or Ran unreasonable exercise of police power. Jenkins v. St. Tammany Parish Police Jury, supra.

The city contends that regardless of the MPC’s compliance with the code, the local governing body has the ultimate authority in matters of zoning and use. King v. Caddo Parish Comm’n, supra. Specifically, the city council must apply the same code guidelines in its review of any proposed site plan, and its decision should be affirmed even if the council did not explicitly cite any factors. This proposition finds some support in King v. Caddo Parish Comm’n, supra:

It is not necessary, for the validity of the ordinance in question, that we should deem the ordinance justified by considerations of public health, safety, comfort or the general welfare. It is sufficient that the municipal council could reasonably have had such considerations in mind. If such considerations could have justified the ordinances, we must assume that they did justify them.
It is not the province of the courts to take issue with the council. We have nothing to do with the question of the wisdom or good policy of municipal ordinances. If they are not satisfying to a majority of the citizens, their recourse is to the ballot—not the courts.

Id., at 10, 719 So.2d at 416, citing Palermo Land Co. v. Planning Comm’n, 561 So.2d 482, 491 (La.1990).

The city’s position is unavailing for two reasons. First, we have closely parsed the minutes of the city council and do not find that valid “considerations could have justified” its action. No person who testified at the council meeting showed that the modified site plan failed to address problems of general appearance, traffic and noise. Aside from rank speculation, no one presented any proof that the Sonic would diminish | ¡property values. Moreover, the recorded comments of two council members utterly refute the claim of proper consideration. Council member Wooley’s remarks showed merely that he disagreed with the tract’s B-3 zoning; while his candor is commendable, it borders on an arbitrary and capricious basis for denying the site plan. Council member Bowman’s statement was an undisguised response to a large, vocal crowd; despite its ad, populum appeal, it subverts the rule of uniform application of zoning regulations. Jenkins v. St. Tammany Parish Police Jury, supra.

Second, we distinguish King v. Caddo Parish Comm’n, supra, Prest v. Parish of Caddo, supra, and several other cases cited in brief, on a factual basis. Those cases all involved requests for variances, special exceptions or rezoning of a particular parcel. When an owner seeks to alter the established zoning, the commission or governing body must apply its great discretion and, as a result, the courts will not “take issue with the council.” King v. Caddo Parish Comm’n, supra. The instant case, by contrast, is the res nova situation in which an owner seeks a use by right, in compliance with the applicable zoning, conforming to every modification imposed, and approved by the commission. The use by right should be presumptively valid and approved. For the council to deny such a use, the burden on the city is much higher. On judicial review, the council’s decision to deny a use by right is subject to strict scrutiny, not the normal standard of broad | indiscretion applied to variance cases. On this record, the city council did not meet its heightened burden of refuting the owners’ use of right.

We note, nevertheless, that the council has the authority to review MPC decisions, under La. Const. Art. 6, § 17, and R.S. 33:4726. For this reason, with the district court we disapprove of the MPC chairman’s remark that overruling the MPC would be a “misuse of authority.” The council plainly can overrule the MPC, but only after reviewing relevant objectives under § 106-44 and overcoming the presumption that a totally compliant site plan is valid. Such did not happen here.

Finally, we are guided by the principle that zoning ordinances and actions must be construed in favor of the use proposed by the owner. Wright v. DeFatta, supra; City of West Monroe v. Ouachita Ass’n, supra. Presumptively, a use of right should be approved. The council’s denial, without advancing any relevant objectives or refuting the MPC’s action, effectively denied the owners’ conforming use. The judgment to the contrary will be reversed.

Conclusion

For the reasons expressed, the judgment affirming the Shreveport City Council’s action is reversed. Judgment is rendered herein approving the owners’ site plan subject to all the modifications imposed by the Metropolitan Planning Commission on March 5, 2008. Costs are not assessed. La. R.S. 13:4521.

REVERSED AND RENDERED.

      . The petition refers to the tract as a portion of Lot 1, while the City Council documents refer to it as Unit 2, of Pugh-Stratmore Commercial Subdivision.

      . Other jurisdictions have reached this conclusion. Hessee Realty Inc. v. City of Ann Arbor, 61 Mich.App. 319, 232 N.W.2d 695 (1975), held that once the requirements of statute, ordinance and regulation have been satisfied, the planning commission "must approve” the site plan, and "the same limitations apply to the City Council.” Bateson v. Geisse, 857 F.2d 1300 (9 Cir.1988) held that the denial of a building permit after the owner has satisfied all requirements was "an arbitrary and capricious action” with due process implications.