author: MAX N. TOBIAS, JR., Judge.

text:
    GULF COAST HOUSING PARTNERSHIP, INC., GCHP-Jericho, L.L.C., GCHP-MLK, L.L.C. and GCHP-Esplanade, L.L.C. v. BUREAU OF the TREASURY OF the CITY OF NEW ORLEANS, et al.
    No. 2013-CA-0556.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 27, 2013.

      Stephen H. Kupperman, David A. Becker, Barrasso Usdin Kupperman Freeman & Sarver, L.L.C., New Orleans, LA, for Plaintiff/Appellee.
    Gregory David Guth, Law Office of Gregory D. Guth, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Chief Judge JAMES F. McKAY, III, Judge DENNIS R. BAGNERIS, SR., Judge MAX N. TOBIAS, JR.).
   MAX N. TOBIAS, JR., Judge.

I,The issue before us is whether an immovable property owning Louisiana limited liability company that is a wholly-owned affiliate of a Delaware nonprofit corporation qualified to do and doing business in Louisiana and income tax-exempt under 26 U.S.C.A. § 501, 26 U.S.C.A. § 501, is exempt from paying ad valorem taxes on that immovable property. The matter comes before this court on a devolutive appeal of the defendant/appellee, Orleans Parish Assessor Erroll G. Williams, against whom the plaintiffs/appellees prevailed on a motion for summary judgment. We review this matter utilizing a de novo standard of review. Reynolds v. Select Properties, Ltd., 93-1480 (La.4/11/94), 634 So.2d 1180, 1183. For the reasons that follow, we conclude that the limited liability companies are not exempt from ad valorem property taxes on the immovable property that they own in their own name, even though the property will be utilized for the charitable purposes of the limited liability company’s parent corporation’s |2income tax-exempt purpose. Accordingly, we reverse the judgment of the trial court and remand for further proceedings.

I.

Gulf Coast Housing Partnership, Inc. (“GCHP”), is a Delaware nonprofit corporation licensed to business in Louisiana. It owns and is the sole member and manager of the three Louisiana limited liability companies, GCHP-Jericho, L.L.P., GCHP-MLK, L.L.C., and GCHP-Espla-nade, L.L.C. (collectively, the “LLCs ”), co-plaintiffs herein. Each of these three limited liability companies owns immovable property in Orleans Parish that they assert will be used for housing of the poor.

The Orleans Parish assessor assessed the LLCs ’ immovable property for ad va-lorem property taxes for calendar year 2010. GCHP paid the 2010 property taxes for the LLCs as assessed under protest and commenced this suit against the assessor, the City of New Orleans, and the Louisiana Tax Commission for a refund of the taxes paid.

II.

GCHP claims that the properties titled in the names of the LLCs are ad valorem property tax-exempt under La. Const, art. VII, § 21, because they, GCHP, are 26 U.S.C.A. § 501(c)(3) nonprofit corporation exempt from paying federal and state income taxes. La. Const, art. VII, § 21 states in pertinent part:

|3In addition to the homestead exemption provided for in Section 20 of this Article, the following property and no other shall be exempt from ad valorem taxation:
❖ * *
(B)(1)(a)© Property owned by a nonprofit corporation or association organized and operated exclusively for religious, dedicated places of burial, charitable, health, welfare, fraternal, or educational purposes, no part of the net earnings of which inure to the benefit of any private shareholder or member thereof and which is declared to be exempt from federal or state income tax; and
(b) property leased to such a nonprofit corporation or association for use solely as housing for homeless persons, as defined by regulation adopted by the tax commission or its successor provided that the term of such lease shall be for at least five years, that as a condition of entering into the lease the property be in compliance with all applicable health and sanitation codes for use as housing for homeless persons, that the lease shall provide that compensation to be paid the lessor shall not exceed one dollar per year, and that such contract of lease shall recite that the property shall be used exclusively for the purpose of housing the homeless, and further provided that at such time as the property is no longer used solely as housing for homeless persons, the property shall no longer be exempt from taxation;
| ¿None of the property listed in Paragraph (B) shall be exempt if owned, operated, leased, or used for commercial purposes unrelated to the exempt purposes of the corporation or association.

The ad valorem tax exemption provided in La. Const, art. VII, § 21 is reserved to property owned by or leased to a “nonprofit corporation or association.” Section B(í )(a) thereof requires that the property meet all four requirements to be exempt: (1) the entity must be a nonprofit “corporation or association” organized exclusively for one of the designated purposes; (2) no part of the net earnings of the “corporation or association” inures to the benefit of a stockholder or member of the “corporation or association;” (3) the nonprofit “corporation or association” must be exempt from federal or state income tax; and (4) none of the property of the nonprofit “corporation or association” is owned, operated, leased, or used for commercial purposes unrelated to the exempt purposes of the “corporation or association.” See La. Arty. Gen. Op 99-401 (1999). Under La. R.S. 12:201(7), a “ ‘nonprofit corporation’ means a corporation formed under this Chapter [2 of Title 12], as well as a corporation formed under the laws of this state before January 1, 1969 but of a class of corporations that might be formed under this Chapter.” The LLCs were formed under La. R.S. 12:1301, et seq., not under La. R.S. 12:201 or La. R.S. 12:1302 C.

|5A limited liability company established under La. R.S. 12:1302 C is known as a “low-profit limited liability company” or “L3C.” An L3C is authorized and defined by section 1302:

C. (1) A limited liability company organized as a low-profit limited liability company shall set forth in its articles of organization a business purpose that satisfies and which limited liability company is at all times operated to satisfy each of the following requirements:
(a) The entity significantly furthers the accomplishment of one or more charitable or educational purposes within the meaning of Section 170(c)(2)(B) of the Internal Revenue Code and would not have been formed but for the entity’s relationship to the accomplishment of charitable or educational purposes.
(b) No significant purpose of the entity is the production of income or the appreciation of property provided; however, the fact that an entity produces significant income or capital appreciation shall not, in the absence of other factors, be conclusive evidence of a significant purpose involving the production of income or the appreciation of property.
(c) No purpose of the entity is to accomplish one or more political or legislative purposes within the meaning of Section 170(c)(2)(D) of the Internal Revenue Code.
(2) If a company that is organized pursuant to the requirements of Paragraph (1) of this Subsection at its formation at any time ceases to satisfy any one of the requirements, it shall immediately cease to be a low-profit limited liability company, but by continuing to meet all the other requirements of this Chapter, shall continue to exist as a limited liability company. The name of the company shall be changed to be in conformance with R.S. 12:1306.

The section was enacted by 2010 La. Acts., No. 417, effective 15 August 2010. At the time the LLCs were created, Louisiana law did not per se authorize nonprofit limited liability companies.

1 «Historically, La. R.S. 12:1301(2) defined “business” for a limited liability company as “any trade, occupation, profession, or other commercial activity engaged in for gain, profit, or livelihood.” In 1997, the definition of “business” was amended to read “any trade, occupation, profession, or other commercial activity, including but not limited to professions licensed by a state or other governmental agency whether or not engaged in for profit.” The legislature apparently enacted section 1302 C to address the statutory deficiencies and ambiguities in the 1997 amendment. That is, the 1997 version that was in effect when the LLCs were formed must be read under ordinary statutory interpretation, La. C.C. art. 9, to mean that a limited liability company could be nonprofit in nature unless it was organized for a governmentally licensed profession only. La. R.S. 12:1301(10) states:

“Limited liability company” or “domestic limited liability company” means an entity that is an unincorporated association having one or more members that is organized and existing under this Chapter. No limited liability company organized under this Chapter shall be deemed, described as, or referred to as an incorporated entity, corporation, body corporate, body politic, joint stock company, or joint stock association.

Reading subsection 10 with subsection 2 of section 1301 demonstrates that for a limited liability company to be tax-exempt or “non engaged in for profit,” it must be organized for a governmentally licensed profession.

Section 1302 C appears to be Louisiana’s equivalency of other states’ nonprofit limited liability companies. See, e.g., Ky. Rev. Stat, T. 23, Ch. 275; 17Minn.Stat. Ann. § 332B.975; N.D. Cen. C. § 10-36-02; Tenn. C. Ann. § 48-101-704. (Perhaps if the LLCs were low-profit limited liability companies organized under La. R.S. 12:1302 C, the appellees’ arguments would be stronger and the results we reach herein might be different.)

The LLCs’ articles of organization provide in pertinent part:

4. Purposes and Powers. The business and purpose of the Company shall be to engage in any activity which may be permitted under applicable law.
5. Tax Treatment. The Company will not be taxed and will be considered a disregarded entity for Federal income tax purposes and shall be operated mainly for scientific, educational, service, charitable, or similar purposes in the public interest; is not organized primarily for profit; and uses net proceeds to maintain, improve, or expand the operation of the organization.

We view this language merely establishing that the LLCs were going to be a business engaged in any lawful enterprise, but intending or hoping to comply with Internal Revenue Service regulations as tax-exempt and thus avoid income tax. Obviously, the language does not address or control the issue of state or local ad valorem tax matters.

Therefore, the issue is whether La. Const, art. VII, § 21(B)(l)(a)(i) allows Louisiana immovable property to be exempt from ad valorem property tax when the property is titled and/or owned directly by a limited liability company that is not directly a 26 U.S.C.A. § 501(c)(3) tax-exempt entity and thus income taxjexempt8 by United States and Louisiana law when the sole member (owner) of the limited liability company is a 26 U.S.C.A. § 501(c)(3) tax-exempt nonprofit corporation, and because the activities of the tax-exempt corporation are not commercial in nature but compliant with law for income tax-exempt purposes. See Hotel Dieu v. Williams, 410 So.2d 1111, 1112 (La.1982).

We do not find from the verbatim transcripts of the Louisiana Constitutional Convention of 1973 that an income tax-exempt entity other than a “corporation or association” which owns immovable property titled in the name of another entity such as a limited liability company would be exempt from ad valorem property taxes. Hotel Dieu v. Williams, 403 So.2d 1255 (La.App. 4th Cir.1981), affirmed, 410 So.2d 1111, 1112 (La.1982); Board of Administrators of the Tulane Educ. Fund v. Louisiana Tax Commission, 97-0663, 97-664, p. 5 (La.App. 4 Cir. 10/1/97), 701 So.2d 702, 705. Only if the immovable property was undeveloped and held by the tax-exempt corporation in its own name as an investment would the immovable be exempt from ad valorem tax. Board of Administrators of the Tulane Educ. Fund, pp. 5-6, 701 So.2d at 705-06. Here, the LLCs acquired the immovable properties for commercial purposes, albeit charitable in nature, to-wit: for “affordable and supportive rental housing for low-income individuals with ^disabilities and for low-income workers.” And as GCHP admits the LLCs were set up to insulate themselves for “liability purposes.” (We also note that in Hotel Dieu, Board of Administrators, and New Orleans Towers, the income tax-exempt corporation owned the immovable property directly, not through a wholly owned affiliate.)

In two recent cases, Abundance Square Associates, L.P. v. Williams, 10-0324 (La.App. 4 Cir. 3/23/11), 62 So.3d 261, and St. Bernard I, LLC v. Williams, 12-0372 (La.App. 4 Cir. 3/13/13), 112 So.3d 922, writ denied, 13-1008 (La.6/14/13), 118 So.3d 1090, we addressed similar, though clearly distinguishable, issues addressing exemption from ad valorem taxes.

In Abundance Square Associates, a public entity, Housing Authority of New Orleans (“HANO”), leased real estate (ground leases) to the plaintiffs for lengthy terms. Under the terms of the leases, the plaintiffs would own the buildings that they constructed for the terms of the leases, provided that the buildings were “qualified low-income [apartment] units” under 26 U.S.C.A. § 42 and a quantified number of the apartments would be used for public housing and/or Section Eight housing-“project based vouchers.” Noting that ownership alone is not the determining factor and that privately owned property may be dedicated to public 11ftuse to attain tax-exempt status, the court found that the record evidence established that the apartments were

all “tax credit” units, meaning IRS regulations prohibit an owner from renting the unit to anyone earning more than sixty (60) percent of the area median income (AMI). Pursuant to the respective Regulatory and Operating Agreements, a majority of the units ... must be “PHA-Assisted Units,” which are defined as a “dwelling unit in the Development designated as such by Owner and operated and maintained as a ‘public housing’ unit in accordance with Public Housing Requirements.”

Further, the Regulatory and Operating Agreements (“Agreements”) recognized that the plaintiffs would likely be unable to recoup their operating costs and thus HANO would subsidize the operation of the PHA-Assisted units; but if the plaintiffs made a profit in operating the PHA-Assisted Units, the Agreements required that the profits be deposited into an escrow for reserves to be used solely for the PHA-Assisted units. If the plaintiffs failed to comply with the Agreements, the ground leases automatically terminated vesting ownership of them in HANO. The court concluded that the units had been dedicated to a “public use, [to] clearly serve a public purpose and, thus are exempt from ad valorem taxes under” La. Const, art. VII, § 21.

Unlike Abundance Square Associates, we find, inter alia, a lack of evidence in the record before us establishing that any of the LLCs had appropriately declared and dedicated their property for public use clearly serving a public purpose. Moreover, the only evidence in support of any “public use” by the LLCs is the self-serving affidavits of Kathy Laborde, manager of the LLCs and president of GCHP, primarily attesting only to the fact that GCHP is tax-exempt under 26 U.S.C.A. § 501(c)(3) and therefore concluding the LLCs are exempt from ad [^valorem taxes. Accordingly, we find Abundance Square Associates inapplicable to the facts in the case at bar.

In St. Bernard I, LLC, HANO (a public body) entered into a 99-year ground lease of land that it owned to St. Bernard I, LLC (“SBI”). SBI constructed improvements thereon. For the obvious purpose of financing with tax-exempt municipal bonds that had a lower interest rate, SBI entered into agreements with the Industrial Development Board of the City of New Orleans, Louisiana, Inc. (“IDB”), another public entity. Under the financing arrangement, SBI conveyed ownership of the improvements to IDB; by subleases and sub-subleases IDB subleased the future improvements back to SBI; under the sublease SBI would pay rent to IDB. The assessor assessed the property finding ad valorem taxes were due; SBI paid the taxes under protest and sued for a refund claiming the improvements were tax-exempt. Finding that IDB’s arrangement with SBI was not a simulation and the actions of IDB complied with the Municipal and Parish Industrial Development Board Act, La. R.S. 51:1151, et seq., and more specifically, La. R.S. 51:1160, the court held that one need look no further than the four corners of the agreements between SBI and IDB and that the immovable property was exempt from ad va-lorem taxes.

l12In the case at bar, we find no evidence that GCHP or the LLCs have entered into any agreement with an municipal or parish industrial development board to bring them within the purview of La. R.S. 51:1151, et seq., and thus potentially exempt from ad valorem taxation of their immovable property. St. Bernard I, LLC is distinguishable and inapplicable.

“Under the general rules of statutory construction, courts begin with the premise that legislation is the solemn expression of legislative will and, therefore, the interpretation of a law involves, primarily, the search for the legislature’s intent.” Falgout v. Dealers Truck Equipment Co., 98-3150 (La.10/19/99), 748 So.2d 399, 401, citing La. C.C. art. 1; Fontenot v. Chevron U.S.A. Inc., 95-1425 p. 6 (La.7/2/96), 676 So.2d 557, 562. The same applies to constitutional construction being the solemn, even sovereign, expression of the drafter’s intent. Intent, however, is not the appropriate starting point for statutory, i.e., constitutional, interpretation. Rather, the starting point is the language of the constitutional itself. See State Civil Serv. Commission v. Department of Public Safety Director, 03-1072, p. 5 (La.4/14/04), 873 So.2d 636, 640. When a law is clear and unambiguous and its application does not lead to absurd consequences, the law must be applied as written and no further interpretation may be made in search of the intent of the di'after. La. C.C. art. 9. It is well-established that exemptions from taxation are strictly construed against the taxpayer claiming the benefit thereof and must be clearly, unequivocally, and affirmatively established by the taxpayer. See Sherwood Forest Country Club v. Litchfield, 08-0194, p. 6 (La.12/19/08), 998 So.2d 56, 61, citing Archer Daniels Midland Co. v. Parish School Board of Parish of St. Charles, 01-0511, p. 11 (La.11/28/01), 802 So.2d 1270, 1278.

We acknowledge that statutorily GCHP is exempt from income tax, both state and federal. La. R.S. 47:121(13); 26 U.S.C.A. §§ 170 and 501. Further, Internal Revenue Service regulations allow GCHP to file a consolidated income tax return for itself and its wholly owned limited liability companies such as the LLCs. That does not, however, make the separately organized limited liability companies (the LLCs ) exempt from all taxes and especially ad valo-rem property taxes.

Finding triable issues exist concerning the lack of an existing tax exemption declaration for the LLCs, it is unnecessary to analyze whether the LLCs were effectively organized and operated exclusively for charitable purposes, and if any transaction in 2011 involving low-income housing tax credits among them (or even just one of them) and GCHP might have had an impact on their alleged tax-exempt status during tax year 2010. We thus find from the record before us that the LLCs are not entitled to tax-exempt status for purposes of ad valorem property taxes under La. Const, art. VII, § 21(B)(l)(a)(i), and therefore conclude that the evidence does not show that the LLCs are to be refunded ad valorem property taxes for the tax year 2010. Because (a) this matter comes to us on the trial court’s judgment granting the plaintiffs/appellees’ motion for summary judgment and (b) the appellants’ motion for summary judgment is not before us for review, we reverse [ uthe judgment in plaintiffs’ favor, and remand this matter to the trial court for further proceedings consistent with the views expressed herein.

REVERSED; REMANDED.

      . Cross motions for summary judgment had been filed by the parties, that of the appellants being granted and that of the appellee denied; only the former is before us. Although the appellant assigns three errors on appeal, all assignments address the same issue, to-wit: Are ad valorem taxes owed by the co-appel-lees-limited liability companies? We address the issues herein as one.

      . It is noted that GCHP owns many other Louisiana limited liability companies that operate in the same manner as the LLCs; however, we do not address the ad valorem property tax liability of those other limited liability companies.

      . The appellant asserts that GCHP operates multiple entities, some for profit and others for purchasing, holding, developing, and selling immovables.

      . At the time that the constitutional provision came effective, an "association” was defined by the then current edition of Black's Law Dictionary (4th Ed.) as:
      The act of a number of persons in uniting together for some special purpose or business. The persons so joining. It is a word of vague meaning used to indicate a collection of persons who have joined together for a certain object. An unincorporated society; a body of persons united and acting together without a charter, but upon the methods and forms used by incorporated bodies for prosecution of some common enterprise. It is not a legal entity separate from the persons who compose it. [Citations omitted.]
      By this definition, each of the LLCs herein is not an association on multiple grounds, e.g., each has but one member, not a group of members; although the articles of organization of the LLCs are similar to articles of incorporation and a form of charter blessed by state law, each is not incorporated; unlike an association, a limited liability company is a legal entity separate from its members (see La. R.S. 12:1304 C; La. R.S. 12:1320).

      . By implication, a foreign nonprofit corporation such as GCHP is treated for Louisiana taxation purposes the same as a Louisiana incorporated nonprofit corporation. See La. R.S. 12:247.1.

      . Cf., Cathcart v. Magruder, 06-0986, pp. 11-12 (La.App. 1 Cir. 5/4/07), 960 So.2d 1032, 1038.

      . We find an absence of any evidence that the LLCs have directly obtained an individual tax-exempt status (qualified as an 26 U.S.C.A. § 501(c)(3) tax-exempt entity) from the Internal Revenue Service. Even if they had, an issue would remain as to whether they are exempt from ad valorem property taxes under La. Const, art. VII, § 21(B)(1) that references only a "corporation or association.” We do not presently address whether a limited liability company is an "association” under the provision, noting, however, that limited liability companies did not exist at the time the constitutional provision became effective on 1 January 1975; we know a limited liability company is not a "corporation.”

      . We note that a nonprofit corporation is not generally exempt from paying all taxes, e.g., sales taxes.

      . See Id.; New Orleans Towers Affordable Housing Corp., Inc. v. Kahn, 98-1240 to 98-1246 (La.App. 4 Cir. 12/29/98), 744 So.2d 50. In New Orleans Towers, New Towers Affordable Housing Corporation, Inc., the entity seeking tax-exempt status was a nonprofit corporation organized under La. R.S. 12:201, et seq., and not a limited liability company.

      . We find La. R.S. 47:1708 inapplicable because it addresses exemption from ad valo-rem property taxes for rental housing for the "homeless.” We find no evidence that the LLCs’ lessees are homeless and that the LLCs and/or GCHP intend to lease the immovable properties to the homeless.

      . In context, we understand these purposes mean only tort liability.

      . Ms. Laborde asserted specifically that (1) GCHP-Jericho, L.L.C.'s immovable was, as of 1 January 2010 [the date taxes became due for calendar year 2010], raw land and that the land was intended to be developed "to provide affordable housing to-low income individuals and families; (2) GCHP-MLK, L.L.C.'s immovable property was "undeveloped, raw land” without attesting to any facts as to plans for same in the future; and (3) GCHP-Esplanade, L.L.C.'s immovable property was, as of 1 January 2010, "in pre-devel-opment stage” and "being developed into 42 units of affordable and supportive rental housing for low-income individuals with disabilities and low-income workers.” Nowhere does evidence exist to support that as of 1 January 2010 any of the LLCs immovable property was appropriately dedicated f or a constitutionally protected ad valorem tax exemption.

      . See La. C.C. arts.2025, et seq.


source: Caselaw Access Project

author: SANDRA CABRINA JENKINS, Judge.

license: Public Domain

text:
    Latate SMITH, Individually and on Behalf of Her Minor Children, Gary Swanson, Jr. and Kemis Darensbourg v. Johnny TREADAWAY, Travelers Insurance Company, the State of Louisiana through the Department of Transportation and Development and the City of New Orleans.
    No. 2013-CA-0131.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 27, 2013.

      Joel R. Waltzer, Waltzer Wiygul & Gar-side, LLC, Harvey, LA, Clay J. Garside, New Orleans, LA, for Plaintiff/Appellant.
    Derek M. Mercadal. Assistant City Attorney of Orleans Parish. Kimlin S. Lee. Deputy City Attorney of Orleans Parish. Sharonda R. Williams. Chief Of Litigation for Orleans Parish. Richard F. Cortizas. City Attorney of Orleans Parish. New Orleans, LA, for the City of New Orleans/Appellee.
    (Court composed of Judge DANIEL L. DYSART, Judge ROSEMARY LEDET, & Judge SANDRA CABRINA JENKINS).
   SANDRA CABRINA JENKINS, Judge.

| tThis case arises out of an automobile accident. Seven year-old Gary Swanson, Jr. was hit by a car driven by Mr. Johnny Treadaway on Patterson Drive in New Orleans. Seeking damages, Gary’s mother filed this suit, individually and on behalf of her two minor children (“plaintiff’), against Mr. Treadaway, his insurer, the State of Louisiana Department of Transportation and Development (“LA DOTD”), and the City of New Orleans (“City”). Plaintiffs claims against LA DOTD were dismissed, and plaintiff settled claims against Mr. Treadaway and his insurer. The City remained as the only defendant and it filed a motion for summary judgment in the trial court. The trial court granted the City’s motion for summary judgment and plaintiff now appeals the trial court judgment of October 1, 2012, dismissing all of plaintiff’s claims with prejudice.

Upon de novo review of the motion for summary judgment, we find that genuine issues of material fact still exist and the trial court erred in granting summary judgment in favor of the City. For the following reasons, we reverse the trial court’s judgment of October 1, 2012, and we remand the matter to the trial court for further proceedings.

REACTS AND PROCEDURAL HISTORY

On April 15, 1999, Mr. Treadaway was driving home from work along Patterson Drive in New Orleans. Being familiar with this route, Mr. Treadaway knew there was a large enclosed field along Patterson Road before the intersection with Ernest Street. He did not know that the field was a New Orleans Recreation Department (“NORD”) playground, because he had not previously seen any posted sign or children playing in the field. Mr. Treadaway had noticed only that the chain link fence surrounding the field was covered by overgrown foliage that extended out towards the road.

As Mr. Treadaway drove past the field on Patterson Drive that day, he saw what appeared to be a child riding a bicycle between the fence and the road, but he could only see the child’s head over the grass. Mr. Treadaway slowed down from 35 miles per hour to about 20 miles per hour to drive cautiously past the child. As he passed the child on the bike, a second child emerged from the overgrowth on the side of the road and ran onto the road in front of his van. Mr. Treadaway turned quickly to the left and slammed on his brakes but was unable to avoid hitting the seven-year-old child, Gary Swanson, Jr. Gary suffered severe head trauma and other injuries as a result of the accident.

Plaintiff, Gary’s mother on behalf of herself and her two children, filed suit against Mr. Treadaway, his insurer, the City, and LA DOTD claiming that the negligent acts of these defendants caused the accident resulting in severe injuries to Gary Swanson, Jr. and pain and suffering for all three. In regards to the negligence of the City and LA DOTD, plaintiff specifically contended that these defendants failed to inspect and maintain the shoulder of the road by not keeping the foliage Rtrimmed next to the playground on Patterson Drive to allow for drivers to see children in the area.

After demonstrating that it did not have custody and control over the road and area involved in the accident, LA DOTD was dismissed from this lawsuit. Plaintiff maintained that the City had custody and control over the shoulder of the road where the accident occurred, the NORD playground, and the fence around the playground.

After LA DOTD was dismissed from the suit and plaintiff settled the claims against Mr. Treadaway and his insurer, plaintiff filed a motion for summary judgment against the City. Plaintiff, however, did not appear at the motion hearing and the trial court dismissed plaintiffs motion for summary judgment. Subsequently, the City filed its own motion for summary judgment. The City attached the deposition testimony of Mr. Treadaway to the motion for summary judgment to support its claim that the plaintiff had no factual support to prove that the overgrowth surrounding the playground and fence along Patterson Drive caused the accident. The trial court held a hearing on the City’s motion at which both parties presented arguments, predominantly relying on Mr. Treadaway’s deposition testimony. At the conclusion of the hearing, the trial court granted the City’s motion for summary judgment and dismissed plaintiffs claims against the City with prejudice. It is from this judgment that the plaintiff now appeals.

DISCUSSION

Standard of Review

Appellate courts review a trial court’s grant of summaiy judgment de novo using the same standard applied by the trial court in deciding the motion for summary judgment, i.e., whether there is a genuine issue of material fact and | ¿whether the mover is entitled to judgment as a matter of law. Schultz v. Guoth, 10-0343, p. 6 (La.1/19/11), 57 So.3d 1002, 1005-06 (citing Samaha v. Rau, 07-1726, pp. 3-4 (La.2/26/08), 977 So.2d 880, 882-83). The judgment shall be granted if the pleadings, depositions, answers to interrogatories, admissions, and affidavits show there is no genuine issue of material fact. La. C.C.P. art. 966(B)(2). Where the mover does not bear the burden of proof at trial on the matter before the court, the mover need not negate all essential elements of the adverse party’s claim, action, or defense; rather, the mover must point out to the court that there is an absence of factual support for one or more essential elements of the claim. La. C.C.P. art. 966(C)(2); See Graubarth v. French Market Corp., 07-0416, p. 2 (La.App. 4 Cir. 10/24/07), 970 So.2d 660, 663. At that point, the party who will bear the burden of proof at trial must present sufficient evidence to demonstrate that he or she will be able to carry that burden at trial. “[T]he failure of the non-moving party to produce evidence of a material factual dispute mandates the granting of the motion.” Schultz, 10-0343, p. 7, 57 So.3d at 1006 (quoting Wright v. Louisiana Power & Light, 06-1181, p. 16 (La.3/9/07), 951 So.2d 1058, 1069-70); see also, La. C.C.P. art. 966(C)(2).

To overcome a motion for summary judgment, the non-moving party must demonstrate to the trial court that a genuine issue of material fact remains. An issue is genuine if reasonable persons could disagree; if reasonable persons could reach only one conclusion from the evidence presented, then there is no need for a trial on that issue. Smith v. Our Lady of the Lake Hosp., Inc., 93-2312, p. 27 (La.7/5/94), 639 So.2d 730, 751. In determining whether an issue is genuine and should proceed to trial, the trial court cannot consider the merits of the case, make credibility determinations, evaluate testimony or weigh the evidence. Id. Based on [¿the evidence and arguments before the court on the motion for summary judgment, the trial court determines whether genuine issues of material facts remain in dispute for the fact finder to consider. Facts are material when “they potentially insure or preclude recovery, affect a litigant’s ultimate success, or determine the outcome of the legal dispute.” Id. (quoting South Louisiana Bank v. Williams, 591 So.2d 375, 377 (La.App. 3d Cir.1991).) Any doubt as to a dispute over material facts must be resolved against granting the summary judgment and in favor of trial on the merits. FMC Enterprises, L.L.C. v. Prytania-St. Mary Condominiums Assn., Inc., 12-1634, pp. 6-7 (La.App. 4 Cir. 5/15/13), 117 So.3d 217, 222-23.

Law and Analysis

In the sole assignment of error, plaintiff contends that the trial court erred in finding there were no disputed material issues of fact. In granting the City’s motion for summary judgment, the trial court found the plaintiff would not be able to establish the necessary elements to prove that the City’s failure to maintain the foliage between the road and the playground fence was a cause of the accident.

In our review of the trial court’s grant of summary judgment, we must determine whether the City established that there was an essential lack of factual support for the plaintiffs claim that the City’s conduct was a cause in fact of the accident; or whether the plaintiff made a showing that a genuine issue of material fact still exists and would be sufficient to establish the necessary burden of proof at trial.

To establish the City’s liability for damages in this case, plaintiff would proceed under a theory of negligence pursuant to the statutory limitation of liability for public entities in La. R.S. 9:2800. When the thing causing damage is under the custody or control of a public entity, the public entity’s liability is statutorily ] (¡limited by La. R.S. 9:2800, which requires proof that the public entity had actual or constructive knowledge of the defect before the entity can be held liable. See Henderson v. Nissan Motor Corp., 03-606 (La.2/6/04), 869 So.2d 62, 66; Clarkston v. Louisiana Farm Bureau Cas. Ins. Co., 07-158, p. 21 (La.App. 4 Cir. 7/2/08), 989 So.2d 164, 181.

Thus, to carry their burden of proof at trial and establish the City’s liability, the plaintiff must prove that (1) the City had custody or control over the fence and area overgrown with foliage alongside Patterson Drive; (2) the condition of the fence and overgrown foliage was defective and created an unreasonable risk of harm; (3) the City had actual or constructive notice of this defective condition and did not take steps to correct it; and (4) the defective condition was a cause in fact of the accident.

In its motion for summary judgment, the City did not present any evidence or argument that plaintiff could not establish the first three elements of liability. The City argued only that the plaintiff would be unable to prove the fourth element of liability, i.e., that the condition of the fence and foliage was a cause in fact of the accident, because Mr. Treadaway’s actions were the sole cause of the accident. Citing and relying on Mr. Treadaway’s deposition testimony, the City claimed that he was aware of the presence of children in the road and he had the sole responsibility to exercise the highest degree of care to avoid injuring those children. The City contended that the plaintiff could not produce any factual |7support to prove that the condition of the fence and foliage was a substantial factor in bringing about the accident. In countering the City’s argument, plaintiff also cited Mr. Treadaway’s testimony and argued that his testimony supported the plaintiffs claim that the overgrown foliage along Patterson Drive was a substantial factor in causing the accident.

Both parties argued that Mr. Treada-way’s testimony would establish whether or not the overgrown foliage was a substantial factor and cause in fact of the accident. The City cited Mr. Treadaway’s statement that he had seen a child riding a bicycle on the side of the road and he began to slow down. The City argued that, even if the foliage had been lower or less overgrown along the side of the road, the accident would still have occurred because Mr. Treadaway did not take every precautionary measure to avoid injury to children in the area, such as bringing his car to a stop until he could determine that no children were entering the street. In opposition, plaintiff referred the trial court to Mr. Treadaway’s statement that he believed he would have been able to see Gary Swanson, Jr. and avoid hitting him if the foliage had been cut back; but Mr. Tread-away stated that, even in hindsight of that day, he did not believe he could have done anything differently to avoid the accident.

The question of cause in fact of the accident is a question of factual dispute made apparent by Mr. Treadaway’s deposition testimony that both parties cited and attached to the motion for summary judgment. The City did not show that the plaintiff had no factual support to establish the City’s liability. The plaintiff, by contrast, presented law, argument and evidence to demonstrate that she would be able to meet the necessary burden of proof to proceed to trial. Specifically in opposition to the City’s only argument on the motion for summary judgment, the Isplaintiff was able to highlight specific facts that presented a genuine issue of material fact. A reasonable fact finder could determine, based on the evidence presented, that the overgrown foliage that the City failed to maintain was a cause in fact of the accident.

At the hearing on the motion for summary judgment, the trial court made an impermissible finding of fact when it stated that it did not find the foliage to be a substantial factor in bringing about the accident. Rather than finding that the City had shown the plaintiff’s claims lacked all factual support and the plaintiff had not met her burden of proof, the trial court made statements in terms of weighing the evidence and factual determination. We find that the trial court erred by making a factual determination based on an evaluation of Mr. Treadaway’s deposition testimony and the parties’ arguments on the issue of cause in fact. “Whether the defendant’s conduct was a substantial factor in bringing about the harm, and thus, a cause in fact of the injuries, is a factual question to be determined by the fact finder.” Bonin v. Ferrellgas, Inc., 03-3024, p. 6 (La.7/2/04), 877 So.2d 89, 94 (citing Perkins v. Entergy Corp., 00-1372 (La.3/23/01), 782 So.2d 606, 612 and Theriot v. Lasseigne, 93-2661 (La.7/5/94) 640 So.2d 1305, 1310).

Upon review of the record for this motion for summary judgment, we find that the plaintiff has presented sufficient evidence and testimony to carry her burden of proof at trial. We also find there are genuine issues of material fact that preclude granting the motion for summary judgment. The material factual dispute in this case must be weighed and determined by the fact finder at the trial on the merits.

^CONCLUSION

For the foregoing reasons, we find that the trial court erred in granting the City’s motion for summary judgment and we reverse the trial court judgment of October 1, 2012. This case is remanded to the trial court for further proceedings.

REVERSED AND REMANDED

      . La. R.S. 9:2800, Limitation of liability for public bodies, provides in pertinent part:
      A. A public entity is responsible under Civil Code Article 2317 for damages caused by the condition of buildings within its care and custody ...
      C. Except as provided in Subsections A and B of this Section, no person shall have a cause of action based solely upon liability imposed under Civil Code Article 2317 against a public entity for damages caused by the condition of things within its care and custody unless the public entity had actual or constructive notice of the particular vice or defect which caused the damage prior to the occurrence and the public entity has a reasonable opportunity to remedy the defect and has failed to do so.
      D. Constructive notice shall mean the existence of facts which infer actual knowledge.


text:
    STATE of Louisiana in the Interest of J.D.
    No. 2013-CA-0964.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 27, 2013.

      Leon A. Cannizzaro, Jr., District Attorney of Orleans Parish, J. Bryant Clark, Jr., Assistant District Attorney of Orleans Parish, New Orleans, LA, for Appel-lee/State of Louisiana.
    Katherine M. Franks, Louisiana Appellate Project, Abita Springs, LA, for Appellant/J.D.
    (Court composed of Judge PAUL A. BONIN, Judge DANIEL L. DYSART, Judge SANDRA CABRINA JENKINS).
   SANDRA CABRINA JENKINS, Judge.

1 ¡The instant appeal from the Orleans Parish Juvenile Court challenges an adjudication of delinquency based on a violation of La. R.S. 14:38.2 — assault on a school teacher. Appellant, herein referred to as J.D., was found to have assaulted a teacher by uttering the words “you ain’t safe, I’ll shoot you,” while walking away from the victim.

On appeal, J.D. challenges the constitutionality of R.S. 14:38.2, the effectiveness of his trial counsel, and the sufficiency of the State’s evidence to |2sustain the judgment. For the following reasons, we affirm the adjudication of delinquency.

FACTUAL AND PROCEDURAL BACKGROUND

On March 18, 2013, the victim, teacher Justin Beardon, found J.D. and another student sitting on the bleachers of the Lake Area New Tech Early College High School gym during a class period in which they should have been elsewhere. Bear-don twice asked them to leave the area, which they did upon his second request. As J.D. was leaving the gym, he uttered “you ain’t safe, I’ll shoot you,” to Beardon. J.D.’s statement alarmed Beardon, who was well acquainted with the minor both as his teacher and football coach. J.D. did not say anything else to Beardon during this interaction. Beardon reported the incident to the school disciplinarian. The police were summoned and J.D. was arrested.

J.D. was charged with a single count of assault on a school teacher under R.S. 14:38.2. After a June 6, 2013 hearing, J.D. was adjudicated delinquent by an ad-hoc judge. The court imposed a suspended disposition of 180 days as well as one year of active probation.

This appeal followed.

DISCUSSION

In juvenile appeals, this Court reviews both “facts and law to determine whether there is sufficient evidence of proof beyond a reasonable doubt to adjudicate a child a delinquent.” State in the Interest of D.R., 10-0405, p. 8 (La.App. 4 Cir. 10/13/10), 50 So.3d 927, 932.

|aJ.D.’s Constitutional Challenge to R.S. 14:38.2 is Waived

J.D. contends that R.S. 14:38.2(A)(2)(b), which criminalizes “making statements threatening physical harm to a school teacher,” is unconstitutionally overbroad. The State, by contrast, urges that the constitutionality of the statute, and its application to J.D. in particular, were improperly raised below and, thus, not preserved on appeal. We agree with the State.

An overbreadth challenge is a facial attack upon a statute’s constitutional validity. See, e.g., United States v. Stevens, 559 U.S. 460, 473, 130 S.Ct. 1577, 1587, 176 L.Ed.2d 435 (2010) (observing that a law is overbroad, and therefore invalid, if “a substantial number of its applications are unconstitutional, judged in relation to the statute’s plainly legitimate sweep”) (citations omitted). The Louisiana Supreme Court has recently reaffirmed that “[wjhile there is no single procedure for attacking the constitutionality of a statute, it has long been held that the unconstitutionality of a statute must be specifically pleaded and the grounds for the claim particularized.” State v. Overstreet, 12-1854, p. 9 (La.3/19/13), 111 So.3d 308, 314 (quoting State v. Hatton, 07-2377, p. 13 (La.7/1/08), 985 So.2d 709, 719) (emphasis added) (internal citations omitted). Despite the absence of a formal procedure, the constitutional challenger to any statute carries a threefold burden, first, to raise the unconstitutionality in the trial court, second, to plead the issues specially, and lastly, to outline the unconstitutionality on particularized grounds. Id. (quoting State v. Hatton, 07-2377, p. 13 (La.7/1/08), 985 So.2d 709, 719) (internal citations omitted). “[T]he specific plea of unconstitutionality and 14the grounds therefor must be raised in a pleading.” Id., 12-1854, p. 9, 111 So.3d at 315 (emphasis added) (citations omitted). This requirement affords interested parties an opportunity to brief the question of constitutionality in full, thereby providing the “trial court with thoughtful and complete arguments relating to the issue of constitutionality and furnishing] reviewing courts with an adequate record upon which to consider the constitutionality of the statute.” Id., 12-1854, p. 10, 111 So.3d at 314 (quoting State v. Hatton, 07-2377, p. 13 (La.7/1/08), 985 So.2d 709, 719) (internal citations omitted) (amendments added).

J.D. challenges the breadth of R.S. 14:38.2(A)(2)(b) for the first time on appeal. He did not previously raise the issue in a motion to quash or other pretrial pleading as expressly required by Over-street and its predecessor cases. See Overstreet, 12-1854, p. 11, 111 So.3d at 315 (citations omitted). Nothing at all was specially pleaded to the trial court by way of overbreadth or the protected nature of J.D.’s specific utterance. See id, 12-1854, p. 9, 111 So.3d at 314 (“the unconstitutionality of a statute must be specifically pleaded and the grounds for the claim particularized”). Trial counsel’s two fleeting references to the First Amendment in opening and closing statements were insufficient to preserve the issue even if they had been on point, which they were not. J.D. concedes as much in his second assignment of error, which alleges the ineffective assistance of counsel based upon trial counsel’s failure to challenge the constitutionality ofR.S. H:38.2(A)(2)(b).

|sThe trial court was unable to pass on the question of the statute’s constitutionality and, therefore, neither shall we. The issue was waived.

The Effectiveness of Trial Counsel’s Performance Will Not be Reviewed on Direct Appeal From the Adjudication of Delinquency

J.D. contends that he is entitled to the reversal of his delinquency adjudication because of the ineffective assistance of his trial counsel. Specifically, he points to counsel’s failure to raise a constitutional challenge to the breadth of R.S 14:38.2(A)(2)(b) as the basis for his claim. We do not address the merits of his claim here, as it is better suited for a post-adjudication hearing resembling the kind of hearing available on post-conviction relief.

Juvenile and adult defendants alike are entitled to effective assistance of counsel. See State in the Interest of Jones, 372 So.2d 779, 780 (La.App. 4 Cir.1979) (citing Application of Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967)). Ineffective assistance of counsel claims are more appropriately raised in a petition for post-conviction relief under La.C.Cr.P. art. 924, et seq. See State v. Carter, 630 So.2d 926, 935 (La.App. 4 Cir.1993) (citing State v. Prudholm, 446 So.2d 729, 737 (La.1984)). If the record discloses sufficient evidence to rule on the merits of the claim, then the interests of judicial economy justify consideration of the issues on appeal. State v. Harris, 11-0663, p. 6 (La.App. 4 Cir. 3/28/12), 88 So.3d 1223, 1226 (citing State v. Landry, 499 So.2d 1320, 1324 (La.App. 4 Cir.1986)). However, where the record contains insufficient evidence to fully explore |fia claim of ineffective assistance, that claim should be deferred until post-conviction proceedings. See, e.g., State v. Holmes, 607 So.2d 956, 961 (La.App. 4 Cir.1992), writ denied, 612 So.2d 97 (La.1993); see also State v. Vincent, 07-90, p. 17 (La.App. 5 Cir. 10/16/07), 971 So.2d 363, 374.

An ineffective assistance of counsel claim is meritorious only where counsel made errors so serious that they effectively deprived the defendant of “counsel” within the meaning of the Sixth Amendment to the United States Constitution. See State v. Diggins, 12-0015, p. 20 (La.App. 4 Cir. 10/23/13), 126 So.3d 770, 787-88 (citing Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984)); see also U.S. Const. Amend. VI. A claim premised on ineffectiveness of counsel is analyzed under the two-prong test under which a successful claim must establish both that trial counsel’s performance was deficient and that the deficiency prejudiced the defendant. Diggins, 12-0015, p. 20, 126 So.3d at 787-88 (citing State v. Jackson, 97-2220, p. 8 (La.App. 4 Cir. 5/12/99), 733 So.2d 736, 741).

Here, the record is insufficiently developed for this Court to evaluate trial counsel’s performance. The record does not disclose, for example, whether the failure to raise a facial challenge to R.S. 14:38.2(A)(2)(b) was an error or a deliberate tactical decision by trial counsel. Such information is crucial to a proper determination of this issue because the deference that we will afford the particular strategic decisions of trial counsel depends upon the adequacy of the investigations supporting those decisions. See Wiggins v. Smith, 539 U.S. 510, 521, 123 S.Ct. 2527, 2535, 156 L.Ed.2d 471 (2003) (citations omitted). The appellate record l7before us was not developed for the purpose of demonstrating trial counsel’s competence or lack thereof. It is in J.D.’s interest to receive a full hearing on the effectiveness of counsel before the trial court. Therefore, we do not dispose of his ineffective assistance claim. Instead, J.D. should raise the claim in a post-adjudication hearing similar to the post-conviction hearings afforded criminal offenders under La.C.Cr.P. art. 924, et seq.

The Evidence Supports the Adjudication of Delinquency

J.D.’s final assignment of error contends that his delinquency adjudication rests on an insufficient showing that the victim, Beardon, experienced a reasonable apprehension of fear in response to J.D.’s threatening utterance. This contention lacks merit.

“The State’s burden of proof in a juvenile delinquency proceeding, just as in a criminal proceeding against an adult, is to prove every element of the offense alleged beyond a reasonable doubt.” State in the Interest of L.A., 11-1138, pp. 6-7 (La.App. 4 Cir. 2/8/12), 85 So.3d 192, 195 (quoting State in the Interest of K.M., 10-0649, p. 4 (La.App. 4 Cir. 9/29/10), 49 So.3d 460, 463.) An adjudication of delinquency premised on R.S. 14:38.2(A)(2)(b) requires “an attempt to commit on a school teacher a battery or the intentional placing of a school teacher in reasonable apprehension of receiving a battery or making statements threatening physical harm to a school teacher.” See R.S. 14:38.2(A)(2)(b) (emphasis added). Considering all evidence in a light most favorable to the State, we will affirm so long as a reasonable trier of fact could have found the defendant guilty beyond a ^reasonable doubt. See State in the Interest of L.A., 11-1138, p. 7, 85 So.3d at 195 (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979)).

Here, it is undisputed that J.D.’s delinquency adjudication rests on a determination that he violated R.S. 14:38.2(A)(2)(b) by uttering threatening statements to Beardon, a teacher. Though J.D.’s trial and appellate counsel expended considerable energy arguing that Beardon lacked the reasonable apprehension of fear necessary to violate the statute, the statute does not require such a finding.

R.S. 14:38.2(A)(2)(b) states that making threatening statements to a school teacher is sufficient to commit an assault. See R.S. 14:38.2(A)(2)(b). It contains no requirement that the victim experience a reasonable apprehension of fear or an imminent battery in connection with these threats. See id,.; but see State in the Interest of L.A., 11-1138, pp. 7-8, 85 So.3d at 196 (appearing to engraft a reasonable apprehension of fear requirement onto the statute’s threatening statements offense). “A statute shall be construed to give meaning to the plain language of the statute.” Vogt v. Bd. of Levee Comm’rs of Orleans Levee Dist., 95-1187, p. 10 (La.App. 4 Cir. 9/4/96), 680 So.2d 149, 155 (citing State, Dep’t of Transp. & Dev. v. Walker, 95-0185, p. 2 (La.6/30/95), 658 So.2d 190, 192). Moreover, where the legislature specifically enumerates a series of things within a statute, the legislature’s omission of other items — e.g., the element for the reasonable apprehension of fear — that it could have been easily included in it, is adeemed intentional under the interpretative cannon, expressio unius et exclusio alterius. See Sensebe v. Canal Indem. Co., 10-0703, p. 16 (La.1/28/11), 58 So.3d 441, 451 (quoting Theriot v. Midland Risk Ins. Co., 95-2895, p. 4 (La.5/20/97), 694 So.2d 184, 187). Additionally, statutes are presumed to be constitutional, and the challenger bears the burden of establishing their invalidity. City of New Orleans v. Louisiana Assessors’ Ret. & Relief Fund, 05-2548, p. 11 (La.10/1/07), 986 So.2d 1, 12 (citations omitted).

Here, there is no dispute that J.D. uttered a threatening statement to Bear-don while the latter was engaged in his duties as a teacher. R.S. 14:38.2 plainly criminalizes the making of threatening statements to a school teacher, without requiring further proof of the offense. See R.S. 14:38.2(A)(2)(b). J.D. has not a1> tempted to establish that his statement was not threatening, much less that he never uttered the words attributed to him. The trial court found those words sufficient to adjudicate J.D. delinquent under R.S. 14:38.2(A)(2)(b). Presuming the statute’s constitutionality and applying our highly deferential standard of review to trial court findings, we cannot disturb J.D.’s adjudication of delinquency on these facts.

We find no merit in this assignment of error.

DECREE

For the forgoing reasons, the judgment of the trial court adjudicating J.D. delinquent is affirmed.

AFFIRMED.

      . As J.D. is a juvenile, he will be referred to by his initials. La. Ch.C. art. 412(a).

      . R.S. 14:38.2 defines assault on a school teacher, in pertinent part, as follows:
      A. (1) Assault on a school teacher is an assault committed when the offender has reasonable grounds to believe the victim is a school teacher acting in the performance of his duties.
      (2)(a) For purposes of this Section, "school teacher” means any teacher, instructor, administrator, staff person, or employee of any public or private elementary, secondary, vocational-technical training, special, or postsecondary school or institution. For purposes of this Section, "school teacher” shall also include any teacher aide and paraprofessional, school bus driver, food service worker, and other clerical, custodial, or maintenance personnel employed by a city, parish, or other local public school board.
      (b) For the purposes of this Section, "assault” means an attempt to commit on a school teacher a battery or the intentional placing of a school teacher in reasonable apprehension of receiving a battery or making statements threatening physical harm to a school teacher.

      R.S. 14:38.2(A)(l)-(2)(b) (emphasis added).

      . While the Children’s Code does not contain a provision regarding post-adjudication or post-conviction relief, it instructs that where the code does not provide procedures, "the court shall proceed in accordance with the Code of Criminal Procedure.” La. Ch.C. art. 803.


author: THIBODEAUX, Chief Judge. AMY, J.,

text:
    Renee Christine DIETZ, et al. v. SUPERIOR OIL COMPANY, et al.
    No. 13-657.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 11, 2013.
    Rehearing Denied Jan. 30, 2014.

      William Wallace Goodell, Jr., The Goo-dell Law Firm, Lafayette, LA, for Plaintiff/Appellant, Phyllis Smith McDonald.
    G. William Jarman, Charles Simon McCowan, III, Esteban Herrera, Jr., Louis Victor Gregoire, Jr., Kimberly K. Hymel, Kean Miller LLP, Baton Rouge, LA, for Defendant/Appellee, Chevron U.S.A., Inc.
    Stephen Barnett Murray, Stephen Barnett Murray, Jr., Elizabeth Roché, Murray Law Firm, New Orleans, LA, for Plaintiff/Appellant, Phyllis Smith McDonald.
    Tommy Woods Thornhill, Emily E. Ge-bhardt, Thornhill Law Firm, Slidell, LA, for Defendant/Appellee, Jennings-Heywood Oil Syndicate.
    Robert Beattie McNeal, Mark LeRay McNamara, James E. Lapeze, Katie Cas-well Cambre, Liskow & Lewis, New Orleans, LA, for Defendants/Appellees, Mobil Exploration and Producing North America, Inc., Superior Oil Company, and Exxon Mobil Corporation.
    Kim Reginald Hayes, Kim R. Hayes, APLC, Crowley, LA, for Plaintiff/Appellant, Phyllis Smith McDonald.
    Demarcus J. Gordon, Loulan Joseph Pi-tre, Jr., Kelly Dussel Perrier, Gordon, Ar-ata, McCollam, Duplantis & Eagan, LLC, New Orleans, LA, for Defendant/Appellee, Jennings Holdings, LLC.
    Stuart Housel Smith, Michael Gregory Stag, John Leonard Fontenot, Jr., Sean Seton Cassidy, Smith Stagg, L.L.C., New Orleans, LA for Plaintiff/Appellant, Phyllis Smith McDonald.
    Morgan J. Wells, Jr., Stephen Marcus Larzelere, Larzelere, Picou, Wells, Simpson, & Lonero, LLC, Metairie, LA, for Defendant/Appellee, Carla Oh Company, Inc.
    David Lyman Browne, Browne Law, LLC, New Orleans, LA, for Defendants/Appellees, Torch Energy Services, Inc. and Big Energy, LLC.
    Michael R. Phillips, Kean Miller LLP, New Orleans, LA, for DefendantyAppellee, Chevron U.S.A., Inc.
    Clint David Bischoff, Iota, LA, for Defendant/Appellee, Two Bayous, Inc.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MARC T. AMY, and J. DAVID PAINTER, Judges.
   THIBODEAUX, Chief Judge.

bln- this property contamination case for injunctive relief and restoration damages against numerous mineral lessees, the trial court granted the lessees’ dilatory exceptions of prematurity and improper cumulation, dismissed the property owner’s suit without prejudice, and denied her motion for new trial. On appeal, we reverse the trial court’s granting of the exception of prematurity but affirm the court’s granting of the exception of improper cumulation and the dismissal of the suit of Ms. Phyllis Smith McDonald, the only plaintiff remaining after all other claims were settled.

I.

ISSUES

We shall consider the trial court’s judgment:

(1) to grant the exception of prematurity;
(2) to grant the exception of improper cumulation and dismiss the suit without prejudice; and
(3) to deny the motion for new trial.

II.

FACTS AND PROCEDURAL HISTORY

This case arises out of alleged soil and groundwater contamination from oil and gas operations on two non-contiguous pieces of property in Acadia Parish. The properties, owned by the Dietz family, were subject to two mineral lease chains. One of the leases granted mineral interests to ExxonMobil, Corp., Superior Oil Co., Mobil Exploration and Producing North America, Inc., Big Energy, L.L.C., Torch Energy Services, Inc., and Jennings Holdings, L.L.C. while |gthe other lease chain provided Chevron, U.S.A. and Carla Oil Co. with similar lessee interests in the properties and facilities on surrounding parcels. In 2007, eight members of the Dietz family filed numerous tort, property law, and contract claims against the mineral lessees, asserting that the lessees improperly used and abandoned oil field waste storage pits, flowlines, and exploration and production equipment, causing extensive contamination to the Dietz’s properties. The Dietz plaintiffs sought both injunctive relief and restoration damages.

After the Dietz plaintiffs filed a First Supplemental and Amending Petition in 2008, the defendants responded by filing a dilatory exception of prematurity, arguing that the defendants were not given proper notice prior to suit as required under Mineral Code Article 136 and that the claims for restoration were premature given the leases were still in effect and operations were ongoing. The defendants also filed a dilatory exception of improper cumulation, contending that the suit lacked the requisite community of interest among the actions and parties. In 2009, the trial court delayed a ruling on the exception of prematurity but granted the exception of improper cumulation, ordering the plaintiffs to amend the petition by electing the actions they wished to proceed with and deleting the actions they wished to discard.

The Dietz plaintiffs subsequently filed a Second Supplemental and Amending Petition, but failed to remove any parties or actions. In response to this petition, the defendants reasserted the exception of prematurity and the exception of improper cumulation, requesting that plaintiffs’ claims be dismissed under La.Code Civ.P. art. 464 for failure to comply with an order to amend. The Dietz plaintiffs then filed a Third Supplemental and Amending Petition in which they joined Ms. Phyllis Smith McDonald, the ex-wife of one of the Dietz plaintiffs and | ¡¡co-owner in indivisión of the properties, as a plaintiff in the action. The eight original Dietz plaintiffs then settled on March 13, 2012, leaving Ms. McDonald as the sole plaintiff in the suit.

The trial court granted the defendants’ exceptions of prematurity and improper cumulation, reasoning that the defendants did not receive the requisite notice prior to suit under La.R.S. 31:136, and that there was no community of interest among the cumulated actions. The court dismissed Ms. McDonald’s suit without prejudice and later denied her motion for new trial.

III.

LAW AND DISCUSSION

Standards of Review

A trial court’s granting of a dilatory exception of prematurity and an exception of improper cumulation is a final judgment subject to a manifest error standard of review. Pinegar v. Harris, 08-1112 (La.App. 1 Cir. 6/12/09), 20 So.3d 1081; Lee v. Carruth, 221 So.2d 548 (La.App. 3 Cir.), writ denied, 254 La. 470, 223 So.2d 873 (1969).

A trial court’s decision to deny a motion for new trial is an interlocutory judgment subject to appeal for abuse of discretion only upon a showing of irreparable harm. Dural v. City of Morgan City, 449 So.2d 1047 (La.App. 1 Cir.1984). However, “where a motion for appeal refers by date to the judgment denying a motion for new trial, but the circumstances indicate that the appellant actually intended to appeal from the final judgment on the merits, the appeal should be maintained as being taken from the judgment on the merits” Id. at 1048 (citing Smith v. Hartford Accident and Indemnity Company, 254 La. 341, 223 So.2d 826 (1969); Fruehauf Trailer Company v. Baillio, 252 La. 181, 210 So.2d 312 (1968); Kirkeby-Natus Corporation v. Campbell, 250 La. 868, 199 So.2d 904 (1967)).

Exception of Prematurity

Ms. McDonald argues that the trial court erred in granting the dilatory exception of prematurity, reasoning that pre-suit notice of property contamination claims are not required under the Louisiana Mineral Code and lessors may sue for such damages prior to the termination of the oil and gas lease. We agree.

In granting the exception of prematurity, the trial court reasoned that the defendants did not receive advanced written notice of the property restoration claims prior to filing as required by Mineral Code article 136. However, this reasoning is flawed. In pertinent part, Article 136 provides:

If a mineral lessor seeks relief from his lessee arising from drainage of the property leased or from any other claim that the lessee has failed to develop and operate the property leased as a prudent operator, he must give his lessee written notice of the asserted breach to perform and allow a reasonable time for performance by the lessee as a prerequisite to a judicial demand for damages or dissolution of the lease.

The Louisiana Supreme Court has explicitly held that restoration claims from oil and gas contamination are not governed by Article 136 and do not require pre-suit notice since such claims “are separate and distinct from any claims that defendants failed to develop and operate the property[.]” Broussard v. Hilcorp Energy Co., 09-449, p. 12 (La.10/20/09), 24 So.3d 813, 820. As Ms. McDonald’s claims all involve restoration damages for groundwater and soil contamination, they are not governed by Article 136 and no pre-suit notice is necessary.

While the trial court did not discuss in its judgment whether a suit against a lessee for restoration damages may be brought during the term of a lease, |sMs. McDonald still contends that such claims are not premature. We agree as the Louisiana Supreme Court has, in our view, definitively decided this issue. In Marin v. Exxon Mobil Corp. 09-2368 (La.10/19/10), 48 So.3d 234, the supreme court held that a lessor’s suit for soil and groundwater contamination damages resulting from oil and gas operations may be brought prior to the end of a mineral lease. In reaching its holding, the court reviewed a lessee’s statutory obligations under a mineral lease:

A lessee’s obligations under a mineral lease are governed by the Mineral Code and the Louisiana Civil Code. La.R.S. 31:2 (providing that the provisions of the Mineral Code are supplementary to the Civil Code and when the Mineral Code does not expressly or impliedly provide for a particular situation, the Civil Code or other laws are applicable).
LaJEt.S. 31:122 provides:
A mineral lessee is not under a fiduciary obligation to his lessor, but he is bound to perform the contract in good faith and to develop and operate the property leased as a reasonably prudent operator for the mutual benefit of himself and his lessor. Parties may stipulate what shall constitute reasonably prudent conduct on the part of the lessee.
The Civil Code lease provisions require the mineral lessee to perform certain restoration obligations during the lease term, and these obligations are governed by Civil Code articles 2683, 2686, 2687, and 2692. La.Civ.Code art. 2683 defines the lessee’s principal obligations as follows:
The lessee is bound:
(1) To pay the rent in accordance with the agreed terms;
(2) To use the thing as a prudent administrator and in accordance with the purpose for which it was leased; and
|fi(3) To return the thing at the end of the lease in a condition that is the same as it was when the thing was delivered to him, except for normal wear and tear or as otherwise provided hereafter.
[La.Civ.Code] art. 2686 provides “[i]f the lessee uses the thing for a purpose other than that for which it was leased or in a manner that may cause damage to the thing, the lessor may obtain in-junctive relief, dissolution of the lease, and any damages he may have sustained.” [La.Civ.Code] art. 2687 directs that “[t]he lessee is liable for damage to the thing caused by his fault or that of a person who, with his consent, is on the premises or uses the thing.” Finally, [La.Civ.Code] art. 2692 provides “[t]he lessee is bound to repair damage to the thing caused by his fault ... and to repair any deterioration resulting from his ... use to the extent it exceeds the normal or agreed use of the thing.”

Marin, 48 So.3d at 255-56.

After outlining the lessee obligations, the Marin court reasoned that “while [La.Civ. Code] art. 2683 contains obligations that only arise at the end of the lease ..., there is absolutely no language to suggest that the other obligations imposed by these co-dal provisions are .not operational until termination of the lease.” Id. at 256. Here, as in Marin, Ms. McDonald’s claims involve damages for soil and groundwater contamination. As such, while the leases may still be in effect, these claims are not premature because there is no language in the mineral or civil codes to suggest these claims for damages only arise upon lease termination.

The defendants rely on three past decisions to support their position that Ms. McDonald’s restoration claims are not effective until the termination of the mineral leases. However, this reliance is unfounded in light of Marin.

First, the defendants cite language from the Louisiana Supreme Court opinion, Corbello v. Iowa Production, 02-826 (La.2/25/03), 850 So.2d 686, which 17outlines the temporal scope of a lessee’s duty to repair the leased premises under a specific mineral lease:

The duty to repair the leased premises does not arise until the lease expires, at which time the lessee must return the property in good order. The 1929 mineral lease is still in effect and is not the subject of this litigation. Thus, even the present leaseholder does not yet have a duty to repair under the terms of that lease.

Corbello, 850 So.2d at 703.

While this language arises in a supreme court opinion, we reject it as merely dicta lacking persuasive force in light of the outcome determinative reasoning in Marin. Moreover, we favor Marin given the fact that it post-dates Corbello and represents the latest expression of the law.

The defendants next rely on Dore Energy Corp. v. Carter-Langham, Inc., 04-1373 (La.App. 3 Cir. 5/4/05), 901 So.2d 1238, writs denied, 05-1484, 05-1492, 05-1493, 05-1496, 05-1503, 05-1521, 05-1576, 05-1577, 05-1582 (La.1/9/06), 918 So.2d 1042-47 and Kinder Gas, Inc. v. Reynolds, 11-1012 (La.App. 3 Cir. 2/1/12), 84 So.3d 695 where this court held that a lessee’s restoration obligations are premature as long as operations are ongoing under a current lease. While we respect the views of our brothers on the bench, these opinions have unnecessarily broadened the scope of premature claims beyond what the supreme court envisioned in Marin. The Marin court explicitly stated that “a lessor need not wait until the end of the lease to sue a lessee for damage to his property.” Marin, 48 So.3d at 256. The Court never mentions ongoing operations as a basis for determining premature claims; rather, it allows for all damage claims to be brought during the term of the lease. As such, we must reject the holdings of Dore and Kinder Gas in favor of Marin. As Marin aligns directly with the facts of this | acase, we find that the trial court was manifestly erroneous in granting the exception of prematurity.

Exception of Improper Cumulation

Ms. McDonald argues that the trial court erred in granting the defendants’ exception of improper cumulation due to a lack of community interest between the joined parties. She further contends that the trial court improperly dismissed her case without prejudice for improper cumu-lation. We disagree.

Louisiana Code of Civil Procedure Article 463 outlines the three requirements for proper cumulation of actions:

Two or more parties may be joined in the same suit, either as plaintiffs or as defendants, if:
(1)There is a community of interest between the parties joined;
(2) Each of the actions cumulated is within the jurisdiction of the court and is brought in the proper venue; and
(3) All of the actions cumulated are mutually consistent and employ the same form of procedure.

In determining whether the requisite community of interest exists, the Louisiana Fourth Circuit Court of Appeal provides further guidance:

The test in determining whether the parties have a community of interest is whether the cumulated causes of action arise out of the same facts or whether they present the same factual or legal issues. Strahan, et. al. v. Maytag Corp., et al., 99-869, [ (La.App. 4 Cir. 4/5/00), 760 So.2d 463]. Essentially, community of interest is present between different actions or parties, where enough factual overlap is present between the cases to make it commonsensical to litigate them together. See also First Guaranty Bank v. Carter, [563 So.2d 1240 (La.App. 1 Cir.1990)], (citing, The Official Revision Comments to Article 463 which states that a review of Louisiana case | ¡¡law indicates that a community of interest and common interest refer to exactly the same concept).

Albarado v. Union Pac. R.R. Co., 00-2540, pp. 10-11 (La.App. 4 Cir. 4/25/01), 787 So.2d 431, 438 reversed on other grounds, 01-1537 (La.9/14/01), 796 So.2d 666.

Applying this test to Ms. McDonald’s claims, there is no community of interest. In making this determination, we find our court’s conclusion in Broussard v. Hilcorp Energy Co., 08-233 (La.App. 3 Cir. 12/10/08), 998 So.2d 946, aff'd, 09-449 (La.10/20/09), 24 So.3d 813 especially compelling. In Broussard, this court upheld an exception of improper cumulation in a case involving property contamination on noncontiguous tracts with multiple leases and numerous operators allegedly at fault. The court reasoned that proof of damages and liability would be different for each party, and thus, “[it could not] say that there [was] enough factual overlap present between all the actions to make it commonsensical to litigate them together.” Id. at 95B. Here, like in Broussard, Ms. McDonald’s claims involve oil and gas contamination from numerous operators under multiple leases on noncontiguous pieces of property. While Ms. McDonald contends the defendants all engaged in similar negligent conduct, this fact alone is not enough to support cumulation given the extensive time period of operations, the different lease obligations, and the specific facts that would need to be proven to show liability for each operator. Accordingly, we find that the trial court was not manifestly erroneous in granting the exception of improper cumulation.

Ms. McDonald’s argument that the trial court erred in dismissing her ease for improper cumulation also lacks merit. Louisiana Code of Civil Procedure Article 464 states, in pertinent part, that:

1 inWhen the cumulation is improper for any other reason, the court may: (1) order separate trials of the actions; or (2) order the plaintiff to elect which actions he shall proceed with, and to amend his petition so as to delete therefrom all allegations relating to the action which he elects to discontinue. The penalty for noncompliance with an order to amend is a dismissal of plaintiff s suit, {emphasis added).

In accordance with this procedure, the trial court granted the defendants’ exception for improper cumulation in 2009 and ordered the plaintiffs to amend their petition by deleting all actions in which they elected to discontinue. In reviewing the record, the plaintiffs failed to comply with this order in their Second Supplemental and Amending Petition as they did not delete any actions but merely stated the same causes of action with greater detail and more allegations. The Third Supplemental and Amending Petition also failed to correct the cumulation error as it only added Ms. McDonald as a plaintiff in the litigation. Louisiana Code of Civil Procedure Article 464 clearly states that “[t]he penalty for noncompliance with an order to amend is a dismissal of plaintiffs suit.” This language is not discretionary; it is mandatory under the Code. While we recognize that Ms. McDonald entered the litigation after the other plaintiffs failed to comply with the cumulation order, she still elected to adopt all of the prior pleadings and allegations. As such, she is bound by the consequence of these pleadings which, in this instance, is dismissal for noncompliance. See Bailey ex. Rel. Brown v. ExxonMobil Corp., 11-459 (La.App. 5 Cir. 5/31/12), 102 So.3d 167, writ denied, 12-2204 (La.1/18/13), 107 So.3d 629. Accordingly, we find the trial court was not manifestly erroneous in dismissing the suit without prejudice.

|nMotion for New Trial

Ms. McDonald contends that the trial court erred in denying her motion for new trial. We reject this argument as this appeal should be maintained solely as one on the merits. “[Wjhere a motion for appeal refers by date to the judgment denying a motion for new trial, but the circumstances indicate that the appellant actually intended to appeal from the final judgment on the merits, the appeal should be maintained as being taken from the judgment on the merits” Dural v. City of Morgan City, 449 So.2d 1047, 1048 (La.App. 1 Cir.1984). In order to show intent, the appellate court may consider “the appellant’s assertion to that effect, whether the parties briefed issues on the merits of the final judgment and whether the language of the order granting the appeal indicated that it was a judgment denying a new trial.” Id. Here, while Ms. McDonald referred to the judgment denying a new trial by date in her motion for devolutive appeal, she relied solely on the already raised arguments regarding the exceptions of prematurity and improper cumulation to support this point. It is clear that Ms. McDonald’s true intent behind this appeal was to find yet another means of challenging the merits of the exceptions judgment, and we will treat it as such. As the merits of this case have already been discussed above, we need not address them further here.

IV.

CONCLUSION

For the foregoing reasons, we reverse the trial court’s granting of the exception of prematurity, but we affirm the granting of the exception of improper | ^cumulation and the dismissal of Ms. McDonald’s case without prejudice. Costs are assessed against Ms. McDonald.

REVERSED IN PART AND AFFIRMED IN PART.

AMY, J., concurs in part, dissents in part, and assigns reasons.

AMY, J.,

concurring in part and dissenting in part.

|,I concur in the result reached by the majority in its reversal of the decision sustaining the exception of prematurity. However, I respectfully dissent from the remainder of the opinion since I would reverse the trial court’s decision sustaining the exception of improper cumulation of actions. In my opinion, this matter satisfies the requirements of La.Code Civ.P. art. 463 and is factually distinguishable from the factual background described in Broussard v. Hilcorp Energy Co., 08-233 (La.App. 3 Cir. 12/10/08), 998 So.2d 946. In Broussard,, the properties involved were five, non-contiguous tracts located in three separate sections. Id. The Brous-sard panel additionally explained that “different parties and combinations of parties [were] alleged to have contributed to the contamination on each [tract], and the times at which contamination allegedly occurred differed] for each property.” Id. at 953. The present matter, however, offers fewer dimensions than did Broussard. Notably, the appellant is the sole remaining plaintiff and the involved property is limited to two tracts of land, located within the same quarter of a quarter of a section. The plaintiff alleges that the same groundwater plumes affect both tracts. Given these circumstances, I find that there was a sufficient community of interest in this case to satisfy the requirements of La. Code Civ.P. art. 463.

|2In sum, and for the foregoing reasons, I would reverse both the exception of prematurity and the exception of improper cumulation of actions sustained by the trial court. I respectfully concur in part and dissent in part from the majority opinion.


author: GREMILLION, Judge.

text:
    Kathryn Elizabeth HOLLAND v. Paul Scott HOLLAND.
    No. 13-636.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 11, 2013.

      W. Mitchell Redd, Attorney at Law, Lake Charles, LA, for Defendant/Appellee: Paul Scott Holland.
    Jamie Blair Bice, Veron, Bice, Palermo & Wilson, L.L.C., Lake Charles, LA, for Plaintiff/Appellee: Kathryn Elizabeth Holland.
    Donald Carl Hodge, Jr., Attorney at Law, Baton Rouge, LA, for Interve-nors/Appellants: Donald Carl Hodge, Jr., Evia Hodge, Rachel Hodge, Chance DeRa-mus.
    Court composed of JOHN D. SAUNDERS, SHANNON J. GREMILLION, and PHYLLIS M. KEATY, Judges.
   GREMILLION, Judge.

LThe Creditors, Chance DeRamus, Evia Hodge, Donald Hodge, and Rachel Hodge (collectively referred to as the Creditors or Interveners), appeal the judgment of the trial court sustaining Kathryn Elizabeth Holland and Paul Scott Holland’s exception of no cause of action and exception of no right of action. For the following reasons, we reverse and remand.

FACTUAL AND PROCEDURAL BACKGROUND

On August 22, 2005, the Creditors filed civil suits in the Thirty-Eighth Judicial District Court against Paul S. Holland for sexual battery and molestation of a juvenile. In November 2006, Holland was sentenced to twenty-two years in prison after pleading guilty to three counts of sexual battery. In December 2006, Kathryn filed for divorce from Paul in the Fourteenth Judicial District Court. The December 2006 judgment purported that Kathryn and Paul had terminated their community property regime in a “Petition to Terminate Legal Matrimonial Regime and Enter into Separation of Property Agreement.”

In December 2010, the Estate of David Craig Hodge and DeRamus each secured a $100,000 judgment against Paul. In August 2012,' the Creditors filed in the divorce proceeding a “Motion to Intervene by Creditors and Judicial Partition of the Community Regime.” Kathryn filed exceptions of no cause of action and no right of action in October 2012. The trial court sustained the Hollands’ exceptions and the Creditors now appeal, assigning as error:

|21. The trial court erred in sustaining the Exception of No Cause of Action when Interveners were attempting to assert their rights against the Community of Acquets and Gains as a creditor when no partition currently exists.
2. The trial court erred in sustaining the Exception of No Right of Action when Interveners have an interest in the Community of Acquets and Gains as creditors.

DISCUSSION

No Cause of Action

On appeal, we review an exception of no cause of action de novo by reviewing the petition and accepting the allegations as true to determine whether a remedy exists under the law based on the facts alleged in the petition. Vermilion Hosp., Inc. v. Patout, 05-82 (La.App. 3 Cir. 6/8/05), 906 So.2d 688, Gardes Directional Drilling, Inc. v. Bennett, 01-80 (La.App. 3 Cir. 6/6/01), 787 So.2d 1201, writ denied, 01-1991 (La.10/26/01), 799 So.2d 1154.

The Creditors sought to intervene in the Hollands’ divorce proceedings to assert claims as creditors of the community of acquets and gains for the two $100,000 judgments, urging that the trial court had not issued a final judgment on the partition of the community property. The Creditors’ Motion to Intervene stated in part:

1.
Kathryn Elizabeth Holland and Paul Scott Holland had a community of ac-quets and gains during their marriage. The community of acquets and gains ended upon the filing of the above-captioned case on December 12, 2006.
5.
Paul Scott Holland and Kathryn Elizabeth Holland knew of the existence of the civil lawsuits pending against Paul Scott Holland in |sthe 38th Judicial District Court at the time of the divorce and upon information and belief, began to sell and donate assets and also fraudulently sold the community home in an attempt to avoid payment of the specific creditors, David Craig Hodge and Chance Earl DeRamus, to their detriment.
6.
The court has not issued a final judgment on the partition of the community of acquets and gains as of the date of the filing of this Motion. Movers are therefore entitled to intervene in these proceedings and assert a claim as creditors on the community of acquets and gains which existed during the marriage of Paul Scott Holland and Kathryn Elizabeth Holland.

Kathryn’s December 21, 2006 petition for divorce states in part:

16.
The parties hereto have already terminated their community property regime by way of a “Petition to Terminate Legal Matrimonial Regime, and Enter into Separation of Property Agreement” filed in proceedings of this Court entitled “In Re: Paul Scott Holland and Kathryn Elizabeth Anderson Holland,” with the Judgment confirming the modification of the regime having been signed on December 11,2006.[ ]
17.
It is believed that counsel for Defendant is preparing a Community Property Settlement Agreement to formally partition the former community of ac-quets and gains of the marriage. In the event an agreement cannot amicably be reached on such, Petitioner reserves her rights to formally partition such as provided by law.

A judgment of final divorce was signed on March 28, 2007. The judgment terminated the legal regime of the community of acquets and gains, retroactive to the date of judicial demand.

There are no pending proceedings to partition former community property nor were any ever filed in conjunction with the divorce judgment. The divorce | Judgment was filed on March 28, 2007. The trial court found that because no partition was pending, there was nothing in which the Creditors could intervene. We agree, however, the Creditors have stated a cause of action as discussed below.

Louisiana Code of Civil Procedure Article 1091 provides (emphasis added):

A third person having an interest therein may intervene in a pending action to enforce a right related to or connected with the object of the pending action against one or more of the parties thereto by:
(1) Joining with plaintiff in demanding the same or similar relief against the defendant;
(2) Uniting with defendant in resisting the plaintiff’s demand; or
(8) Opposing both plaintiff and defendant.

Pursuant to La.Civ.Code art. 2376, a creditor does have certain rights in relation to a spouse’s attempt to terminate a community property regime (emphasis added):

The creditors of a spouse, by intervention in the proceeding, may object to the separation of property or modification of their matrimonial regime as being in fraud of their rights. They also may sue to' annul a judgment of separation of property within one year from the date of the rendition of the final judgment. After execution of the judgment, they may assert nullity only to the extent that they have been prejudiced.

The Creditors argue that this was an impossibility because the judgment in their favor was not rendered until December 2010, nearly four years after the community property regime was terminated. The Creditors further argue that the liabilities were incurred during the existence of the community, i.e., at the time that Paul sexually battered the two victims, he and Kathryn were still under a community property regime. Also, the Creditors point out that their civil suit was filed in August 2005, well before the termination of the community of acquets and gains in December 2006.

|filt is well settled that a tortfea-sor’s debt owed to the victim accrues at the time the injury is sustained, not on the date that suit is filed or judgment is obtained. Holland v. Gross, 195 So. 828 (La.App. 2 Cir.1940), Perigoni v. McNiece, 307 So.2d 407 (La.App. 4 Cir.1975); Thomassie v. Savoie, 581 So.2d 1031 (La.App. 1 Cir.), writ denied, 589 So.2d 493 (La.1991); LeBlanc v. American Emp’rs Ins. Co., 364 So.2d 263 (La.App. 3 Cir.1978), writs denied, 366 So.2d 911, 916, 917 (La.1979). In Dugas v. Dugas, 01-669, p. 5 (La.App. 3 Cir. 12/26/01), 804 So.2d 878, 881, writ denied, 02-652 (La.5/24/02), 816 So.2d 307 (footnote omitted), we stated:

Louisiana public policy does not permit a potential debtor to transfer property to someone else in order to secrete it from potential creditors, in essence, for an illicit purpose. This applies to transfers made at the time that a cause of action accrues before a potential creditor files a suit or obtains a judgment. Jurisprudence, even, gives a potential creditor standing and a cause of action to set the illicit transfer aside.

“The filing of suit merely seeks recognition of a pre-existing delictual obligation.” LeBlanc, 364 So.2d at 266. The Creditors’ rights vested from the initial sexual batteries of Chance DeRamus and David Craig Hodge.

Thus, the Creditors have a valid cause of action. Although the Motion to Intervene does not list the specifics of the fraudulent transfers in derogation of their rights, the allegation in paragraph five is sufficient to move forward. “A contract is absolutely null when it violates a rule of public order, as when the object of a contract is illicit or immoral.” La.Civ.Code art. 2030. “An obligee has a right to annul an act of the obligor, or the result of a failure to act of the obligor, made or effected after the right of the obligee arose, that causes or increases the obligor’s insolvency.” La.Civ.Code art. 2036; See Pan Am. Import Co., Inc. v. Buck, 452 So.2d 1167 (La.1984). Spouses cannot deprive creditors of their rights by filing | ^extrajudicial partitions of their community property. See La.Civ.Code art. 2357. The Creditors’ petition states a cause of action — a revoca-toi*y action — thus the trial court erred in granting the Hollands’ exception of no cause of action. Based on the foregoing, we need not address the second assignment of error.

CONCLUSION

The judgment of the trial court granting the Hollands’ exceptions of no cause and no right of action is reversed and this matter is remanded for further proceedings consistent with this opinion. All costs of this appeal are assessed to Kathryn Elizabeth Holland and Paul Scott Holland.

REVERSED AND REMANDED.

      . Evia Hodge, Rachel Hodge, and' Donald Hodge are the surviving relatives of David Craig Hodge, one of Paul’s victims.

      . Paul did not file any formal pleadings but joined in Katherine's exceptions at the December 3, 2012 hearing.

      . The December 11, 2006 judgment referred to in paragraph sixteen creating a separation of property regime is not in the record.