author: EDWIN A. LOMBARD, Judge.

text:
    COUNTRYWIDE HOME LOANS SERVICING, LP v. Gwenonia Lewis THOMAS.
    No. 2012-CA-1304.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 20, 2013.

      Rader Jackson, Jackson & McPherson, L.L.C., Monique M. Lafontaine, Locke Lord, LLP, New Orleans, LA, for Plaintiff/Appellee Patrick D. Breeden.
    P. Michael Breeden, The Breeden Law Firm, L.L.C., New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge MAX N. TOBIAS, JR., Judge EDWIN A. LOMBARD, Judge JOY COSSICH LOBRANO).
   EDWIN A. LOMBARD, Judge.

1 ,The Appellant/plaintiff in reconvention, Gwenonia Lewis Thomas, seeks review of the judgment of the district court granting the exceptions of res judicata and improper “accumulation” of actions of the Appel-lee/defendant in reconvention, Countrywide Home Loans Servicing, LP. For the reasons that follow, the judgment of the district court is affirmed.

On April 8, 2009, Countrywide Home Loan Servicing, LP (“Countrywide”) filed its petition for executory process in the district court, which signed the order thereby issuing a writ of seizure and sale of the Orleans Parish property of Gweno-nia Lewis Thomas (“Ms. Thomas”). Thereafter, the Orleans Parish Sheriff sold the property to Countrywide for $83,334.00 on May 19, 2011.

On July 15, 2011, Ms. Thomas filed her “Reconventional Demand for an Order Suspending the Eviction Order and/or Preliminary Injunction and/or Permanent Injunction and/or for Damages and/or for the Return of the Seized Property.” The trial coui't granted Ms. Thomas a preliminary default on December 1, 2011; however, it was never confirmed.

| ^Subsequently on February 16, 2012, Countrywide filed exceptions of res judica-ta and improper “accumulation” of actions, which the trial court set for hearing on May 11, 2012. On March 18, 2012, Ms. Thomas filed a Chapter 13 bankruptcy petition in U.S. Bankruptcy Court, Eastern District of Louisiana, case number 12-10669. The automatic stay pursuant to 11 U.S.C. § 362 was terminated on April 19, 2012. Thereafter, at the May 11, 2012 hearing, the district court granted the exceptions of res judicata and improper accumulation of actions and dismissed with prejudice Ms. Thomas’ reconventional demand.

This timely appeal of Ms. Thomas followed, and she raises six (6) assignments of error:

1. Whether res judicata exception applies to an order of seizure and sale in executory process proceedings;
2. Whether the dilatory exception of improper “accumulation” of action applies after the order of seizure and sale was signed;
3. Whether the trial court should have, at least, given the reconventional demand a new number;
4. Whether the filing of Thomas’ bankruptcy petition stay order cancelled all other orders taken by Countrywide;
5. Whether the reasons for judgment can enlarge the judgment; and
6. Whether the trial court’s judgment does substantial justice.

13Although Ms. Thomas cites six (6) assignments of error, we find that a discussion of the trial court’s ruling on the exception of res judicata to be dispositive of this appeal. Furthermore, we note that assignments of errors three (3), four (4) and six (6) were not briefed by Ms. Thomas; thus, they are deemed abandoned under Uniform Rules-Courts of Appeal, Rule 2-12.4. See Burnett v. Lewis, 02-0020, p. 6 (La.App. 4 Cir. 7/9/03), 852 So.2d 519, 525.

Standard of Review

We review factual issues relating to an exception of res judicata on a manifest error/clearly wrong basis; however, we review legal issues relating to res judicata under a de novo standard of review. See Sutter v. Dane Investments, Inc., 07-1268, p. 3 (La.App. 4 Cir. 6/04/08), 985 So.2d 1263, 1265; Landry v. Town of Livingston Police Dept., 10-0673, p. 5 (La.App. 1 Cir. 12/22/10), 54 So.3d 772, 776; Thompson v. Jackson Parish Police Investments, Inc., 36,497, p. 11 (La.App. 2 Cir. 10/23/02), 830 So.2d 505, 512; Alford v. Al Copeland Investments, Inc., 34, 808, p. 6 (La.App. 2 Cir. 6/20/01), 794 So.2d 52, 56; Mendonca v. Tidewater, Inc., 11-0318, p. 3 (La.App. 4 Cir. 9/7/11), 73 So.3d 407, 410.

Res Judicata and Executory Proceedings

We note that La.Rev.Stat. 13:4231, entitled Res judicata, provides in pertinent part:

Except as otherwise provided by law, a valid and final judgment is conclusive between the same parties, except on appeal or other direct review, to the following extent:
(1) If the judgment is in favor of the plaintiff, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and merged in the judgment.
14(3) A judgment in favor of either the plaintiff or the defendant is conclusive, in any subsequent action between them, with respect to any issue actually litigated and determined if its determination was essential to that judgment.

Additionally, with regard to executory proceedings, La.Code Civ. Proc. art. 2361, entitled Use of executory proceedings, provides:

Executory proceedings are those which are used to effect the seizure and sale of property, without previous citation and judgment, to enforce a mortgage or privilege thereon evidenced by an authentic act importing a confession of judgment, and in other cases allowed by law. [Emphasis added.]

In the instant matter, Ms. Thomas argues that Countrywide and the trial court erroneously relied on a First Circuit opinion, Avery v. CitiMortgage, Inc., 08-2052 (La.App. 1 Cir. 5/13/09), 15 So.3d 240, in determining that there was an executory process “judgment” to which the doctrine of res judicata was applicable. The crux of Ms. Thomas’ argument is that an order of seizure and sale is not a judgment; thus, an exception of res judicata is not applicable.

Ms. Thomas argues that La.Code Civ. Proc. art. 2631 declares that executory proceedings are used “without prior citation and judgment.” She contends that when a petition for executory process is filed, citation is not served on the debtor. She contends that even if a judgment did exist, it would be invalid because there is not citation and service of the petition on the debtor before the order of seizure and sale was signed and thus, the seizure is unconstitutional.

Ms. Thomas further argues that there are cases from the Louisiana Supreme Court, Mitchell v. Logan, 34 La.Ann. 998, 1882 WL 8957 (1882), and Lacour Plantation Co. v. Jewell, 186 La. 1055, 173 So. 761 (1937), which hold that an |5order of seizure and sale cannot support an exception of res judicata. She also argues that the U.S. Supreme Court refused jurisdiction of a Louisiana appeal because it held that an order of seizure and sale is not a judgment in Fleitas v. Richardson, 147 U.S. 538, 545, 13 S.Ct. 429, 432, 37 L.Ed. 272 (1893).

Albeit Ms. Thomas contests whether an order of seizure and sale is indeed a judgment, we find that Louisiana courts have treated orders of seizure and sale as judgments for res judicata purposes. See Bickham Motors, Inc. v. Crain, 185 So.2d 271 (La.App. 1 Cir.1966), and Antoine v. Chrysler Fin. Corp., 00-0647 (La.App. 4 Cir. 3/7/01), 782 So.2d 651.

Additionally, we find that Ms. Thomas’ reliance on La.Code Civ. Proc. art 2631 to assert that an order of seizure and sale is not a judgment is misplaced because the article only explains when executory proceedings are appropriate. In the instant matter, there was no prior citation and judgment executed before the executory proceedings in this matter commenced. Also, pursuant to articles 2631 and 2632, Countrywide was acting to enforce a mortgage evidenced by an authentic act importing a confession of judgment. Indeed, paragraph 23 of the Act of Mortgage states:

For the purposes of foreclosure under executory process procedures, Borrower confesses judgment and acknowledges to be indebted to Lender for all sums secured by this Security Instrument, in principal, interest, |6costs, expenses, attorneys’ fees and other fees and charges. [Emphasis added.]

Regarding Ms. Thomas argument that the Louisiana Supreme Court has not recognized that an order of seizure and sale to be a judgment, we note that the First Circuit in Regions Bank v. Rauch, 12-0232 (La.App. 1 Cir. 12/21/12), 2012 WL 6677790 (unpub.), addressed the issue of whether the holdings in Mitchell and Lac-our Plantation continue to have bearing on the application of the doctrine of res judicata in executory proceedings. The Court explained why the appellant’s reliance upon these older Supreme Court opinions is unfounded:

Ms. Rauch [the appellant] uses a couple of antiquated Louisiana Supreme Court cases as support for her argument that an order of seizure and sale cannot support a plea of res judicata. See J.H. Mitchell v. S. Logan, 34 La.Ann. 998, 1882 WL 8957 (La.1882), see also Lac-our Plantation Co. v. Jewell, 186 La. 1055, 173 So. 761 (La.1937). Ms. Rauch states in her brief that Avery v. Citi-Mortgage does not follow the ruling of these cases. However, in the somewhat more recent Louisiana Supreme Court case of Reed v. Meaux, 292 So.2d 557 (La.1974), the supreme court aptly describes the uniquely Louisianain [sic] concept of executory process as “an In rem action derived from the civil law; it provides a simple, expeditious, and inexpensive procedure by which creditors may seize and sell property upon which they enjoy a mortgage or privilege.” Reed, at 559. The plaintiff must present evidence to prove the secured obligation and the mortgage importing a confession of judgment, while the defendant may raise defenses and procedural objections either by suspensive appeal or injunction. Id, at 559-60. The proceeding is regarded as a harsh remedy, and the creditor must strictly comply with the letter of the law. Id, at 560.
Reed, however, does not definitively answer whether or not a judgment per se is rendered through executory process. That issue is addressed directly by the First Circuit in Avery v. Citi-Mortgage, which tailored the elements of res judicata to executory process. Louisiana Revised Statutes 13:4231 provides a broad application of |7res judicata; the púrpose is to foster judicial efficiency and protect the defendants from multiple lawsuits. Avery at 243. To dismiss an action on the basis of res judicata, a court must find: (1) the judgment in the executory process lawsuit is valid; (2) the judgment is final; (3) the parties are the same; (4) the cause or causes of action asserted in the present suit existed at the time of the final judgment; and (5) the cause or causes of action asserted in the present petition arose out of the transaction or occurrence that was the subject matter of the executory process lawsuit. [Emphasis added].

Id., 12-0232, p. 3.

We too find that Avery is controlling as to the application of res judicata in an executory action. In applying the Avery factors to the matter sub judice, we first examine whether the executory process judgment is valid. We note that the order of seizure and sale at issue was filed in the trial court on April 8, 2009, and signed by the trial court on that same date. The order of seizure and sale directed that Ms. Thomas be served at the address of the seized property. Regarding the second factor, the 2009 judgment of the trial court is final and was never appealed by Ms. Thomas. We further note that Ms. Thomas did not file an injunction to arrest the seizure and sale pursuant to La.Code Civ. Proc. arts. 2642, and 2751 through 2754. Indeed, she filed her reconventional demand over two (2) years after the |sorder of seizure and sale was signed by the trial court. Thirdly, the parties to both the order and Ms. Thomas’ reconventional demand are identical. Fourth, the causes of action for Ms. Thomas’ eviction, preliminary and permanent injunction and the return of her home existed at the time of the executory process. Lastly, those causes of action arose out of the same occurrence, which was the default on the loan from Countrywide to Ms. Thomas.

Considering that the five-prong test of Avery is met, we find that res judicata does bar the actions of Ms. Thomas seeking the suspension of her eviction, preliminary and permanent injunctions and the return of the seized property.

We further note that within Ms. Thomas’ reconventional demand she pleaded that Countrywide failed to follow the laws governing executory proceedings, and that the alleged procedural violations led to the illegal seizure of her home. This is a procedural objection to the executory action. Louisiana Revised Statute 13:4112, entitled Actions to set aside or annul judicial sales in executory proceedings, provides in pertinent part:

No action may be instituted to set aside or annul the judicial sale of immovable property by executory process by reason of any objection to form or procedure in
the executory proceedings, or by reason of the lack of authentic evidence to support the order and seizure, where the sheriff executing the foreclosure has either filed the proces verbal of the sale or filed the sale for recordation in the conveyance records of the parish.... Nothing herein shall be construed to affect legal defenses otherwise available to any person against whom a deficiency judgment is sought after the public sale of immovable property through executo-ry proceedings. [Emphasis added.]

The record indicates that the Orleans Parish Sheriff filed the sale for recordation in June 2011. Therefore, Ms. Thomas’ reconventional demand was untimely when it was filed on July 15, 2011, pursuant to La.Rev.Stat. 13:4112.

| ^Additionally, we recognize that Ms. Thomas also raises the argument that her claim for damages contained within her reconventional demand is not barred by res judicata. Ms. Thomas points to paragraphs 20 and 42 of her reconventional demand petition wherein she pleaded she is due “actual damages” and “attorneys fees,” pursuant to La. C.C. arts. 2315,1953 and 1958, because the proximate cause of her damage was the illegal use by Countrywide of Executory Process that caused the illegal sale of her property.

We explained in Antoine, supra, that where an order of executory process has become final and nonappealable, the doctrine of res judicata is applicable and precludes recovery of damages for wrongful seizure of property. 00-0647, pp. 4-5, 782 So.2d at 658. As previously discussed, the judgment at issue has become final; thus, we find that Ms. Thomas claim for damages is also barred by res judicata.

Lastly, we pretermit a discussion of the exception of the improper “accumulation” of actions as our sustaining the exception of res judicata is dispositive of this matter.

Conclusion

For the foregoing reasons, the judgment of the trial court granting the exception of res judicata is affirmed.

AFFIRMED.

      . Although Countrywide Home Loans Servicing, LP, filed an exception of improper "accumulation” of actions, which the district court granted, we note that pursuant to La.Code Civ. Proc. art. 926(A)(7) the proper title of this exception is an improper cumulation of actions.

      . The transcript of the May 11, 2012 hearing reveals that neither Ms. Thomas nor her counsel appeared at the hearing. Counsel for Ms. Thomas represented to Counsel for Countrywide, by telephone that day, that he did not need to appear in the trial court because he "filed a bankruptcy” and the matter was now in federal court. Counsel for Countrywide informed the trial court that he had obtained an "Order of Relief from Stay” from the U.S. Bankruptcy Court, Eastern District of Louisiana, which was admitted into evidence as exhibit A. Exhibit A indicates that the current owner of the seized property is Federal National Mortgage Association.

      . We note that Mitchell, LaCour and Fleitas were decided under the Louisiana Code of Practice (1870), which has been supplanted and superseded by the Louisiana Code of Civil Procedure. Thus, these cases do not provide viable jurisprudence and are not applicable.

      . La.Code Civ. Proc. art. 2632 provides:
      An act evidencing a mortgage or privilege imports a confession of judgment when the obligor therein acknowledges the obligation secured thereby, whether then existing or to arise thereafter, and confesses judgment thereon if the obligation is not paid at maturity.

      . See. La.Code Civ. Proc. art. 2168.

      . La.Code Civ. Proc. art. 2642, entitled Assertion of defenses; appeal, states:
      Defenses and procedural objections to an executory proceeding may be asserted either through an injunction proceeding to arrest the seizure and sale as provided in Articles 2751 through 2754, or a suspensive appeal from the order directing the issuance of the writ of seizure and sale, or both. A suspensive appeal from an order directing the issuance of a writ of seizure and sale shall be taken within fifteen days of the signing of the order. The appeal is governed by the provisions of Articles 2081 through 2086, 2088 through 2122, and 2124 through 2167, except that the security therefor shall be for an amount exceeding by one-half the balance due on the debt secured by the mortgage or privilege sought to be enforced, including principal, interest to date of the order of appeal, and attorney’s fee, but exclusive of court costs.


source: Caselaw Access Project

author: COOKS, Judge.

license: Public Domain

text:
    Thomas W. FERRARA v. LOUISIANA ELASTOMER, LLC.
    No. 12-1141.
    Court of Appeal of Louisiana, Third Circuit.
    March 27, 2013.

      Bernard S. Johnson, Kristina B. Gustav-son, Cook, Yancey, King & Galloway, APLC, Shreveport, LA, for Plaintiff-Ap-pellee, Thomas W. Ferrara.
    D. Scott Landry, Jonathan C. McCall, Kurt D. Duncan, Chaffe McCall, L.L.P., Baton Rouge, LA, for Defendant-Appellant, Louisiana Elastomer, L.L.C.
    Court composed of SYLVIA R. COOKS, JOHN D. SAUNDERS, and JIMMIE C. PETERS, Judges.
   COOKS, Judge.

|,Plaintiff, Thomas W. Ferrara, began working for Defendant, Louisiana Elas-tomer, LLC (hereafter LAEL), in June 2007 as Executive Vice President. On April 20, 2010, Plaintiff entered into an Employment Agreement with LAEL to serve as its Executive Vice President, Chief Financial Officer, and member of the Board of Directors for a term of three years. Under the provisions of the agreement, LAEL agreed it would compensate Plaintiff under Section 3 of the agreement (which provided for an annual base salary of $175,000.00) as long as he, his wife, or his estate remained subject to a guaranty of any present or future loans made to LAEL. Section 9 of the Employment Agreement provided as follows:

9. Guarantor Rights. Notwithstanding any provision or language in Section 4 or Section 5 of this Employment Agreement, as long as the Employee, the Employee’s Spouse, or the Employee’s estate is subject to a guarantee of any of the current or future loans to the Company, the Company shall be [sic] compensate the Employee of the Employee’s estate pursuant to Section 3 of this agreement as long as the Employee, the Employee’s spouse, or the Employee’s estate are subject to the loan guarantee(s).

In accordance with the agreement, Plaintiff and his wife, Linda Ferrara, executed and are personally subject to several continuing obligations guaranteeing loans for LAEL.

According to Plaintiff, on September 20, 2011, LAEL informed him it wished to terminate his employment because “[h]is position was not needed.” The following day, Plaintiff contends LAEL attempted to alter the terms of the Employment Agreement by amendment. Plaintiff did not accept the new terms and refused to sign the amendment. LAEL then ceased paying Plaintiff the agreed upon salary.

Plaintiff then filed suit against LAEL, alleging LAEL breached the contract and Plaintiff was entitled to damages in the form of all compensation due pursuant 12to Sections 3 and 9 of the employment agreement, as well as attorney fees under Section 8 of the employment agreement.

LAEL filed an answer and reeonven-tional demand, generally denying the main allegations and specifically listing the affirmative defense that the Employment Agreement of April 20, 2010, had not been properly authorized by LAEL.

On February 1, 2011, Plaintiff filed a Motion for Partial Summary Judgment, asserting that he was entitled to enforce the provisions of Sections 3 and 9 of the Employment Agreement which set forth that Plaintiff should continue to be compensated provided he and his wife are guarantor’s of LAEL’s debt.

LAEL opposed Plaintiffs Motion for Partial Summary Judgment on the following grounds: (1) the Employment Agreement was not properly authorized by LAEL; (2) the Employment Agreement did not accurately reflect the parties’ understanding concerning termination for cause; (3) Plaintiff failed to perform his obligations under the Employment Agreement thereby causing “dissolution” of said agreement; and (4) in a separate agreement, the parties decided Plaintiff could not draw compensation after termination.

A hearing on the Motion for Partial Summary Judgment was held on April 23, 2012. The trial court took the matter under advisement, and on May 23, 2012, entered the following Written Reasons for Judgment:

There does not exist a genuine dispute. The defendant’s answer to the lawsuit states in paragraph 2 and 3 to wit:
“The employment agreement is a written document, which itself is the sole and best evidence of its contents.”
There is no dispute of the fact that Thomas W. Ferrara and/or his wife are guarantors on outstanding loans made to the company.
The three claims in opposition are without merit.
Defendant seeks to reform a written contract by anticipated oral testimony which is not admissible. Parol evidence is only acceptable | sto negate or vary the terms of a written document in circumstances of vice of consent, error, fraud, duress, or a subsequent valid, oral agreement.
The exhibits do not present any valid basis to receive parol evidence to vary the terms of the written contracts. In fact, Provision 12 amendment governs any amendments to wit:
“This agreement may be amended or modified only by a written instrument executed by both the company and employee.”
Thomas W. Ferrara is entitled to a partial summary judgment in accord with the motion.

In accordance with this, Judgment granting Plaintiffs Partial Motion for Summary Judgment was entered in the record. LAEL appealed.

ANALYSIS

LAEL first contends, as it did below, that the Employment Agreement is unenforceable because it was never properly authorized by LAEL. We disagree.

Plaintiff points out to this Court that LAEL attempts to argue, among other failures in his job performance, that Plaintiff failed to properly act as a fiduciary, did not carry out the wishes of LAEL’s Board of Managers, and did not pay taxes owed by the company. However, in the same breath, LAEL argues Plaintiff is not entitled to his compensation under the Employment Agreement as he was never properly employed because the agreement was not properly authorized. Plaintiff notes the hypocrisy of LAEL’s attempts to accuse Plaintiff of behavior justifying termination when it also argues Plaintiff was never properly employed because the Employment Agreement was not authorized.

The record establishes the Employment Agreement was prepared by LAEL, and was presented to Plaintiff for his signature. Plaintiff signed the agreement on his behalf, and Michael Wells, LAEL’s President, signed the agreement on LAEL’s behalf. In its Answer and Recon-ventional Demand, LAEL specifically stated “the Employment Agreement is a written document, which is itself the sole and best evidence of its contents.” We have found no genuine issue of material fact in the Rrecord regarding LAEL’s authority to enter into the Employment Agreement. This assignment of error has no merit.

In its other assignments of error, LAEL argues parol evidence, in the form of the affidavits of Ronald Lane and Michael Wells (who were both, at different times, President and CEO of LAEL and members of the Board of Managers), should be received to vary the terms of the Employment Agreement. We find the trial court did not err in finding parol evidence was not admissible in this case.

LAEL argues the Employment Agreement “does not reflect the parties’ true intent and should not be enforced but should be reformed to reflect that intent.” To establish this alleged “true intent of the parties,” LAEL attempted to introduce the affidavits of Lane and Wells. Essentially, LAEL argues Plaintiff was terminated from his position for cause and, as a result, the Employment Agreement should be reformed to reflect that the parties intended a different outcome would result were Plaintiff to be terminated for cause. There are several problems with this argument.

Initially, there is no basis in the record for LAEL’s self-serving contention that Plaintiff was terminated for cause. Plaintiff notes LAEL neither pled termination for cause as a fact nor offered any proof of it in opposition to the motion for partial summary judgment. In the Answer and Reconventional Demand filed by LAEL, it stated that Plaintiff was “currently the Executive Vice President and CEO” of LAEL. Further, during the hearing before the trial court, LAEL did not maintain Plaintiff was terminated for cause, stating to the trial court “[ijf Ferar-ra was terminated, as he contends ...” The record is clear LAEL did not allege, prior to the hearing on the motion for summary judgment, that Plaintiff was terminated, much less for cause. Thus, such allegations now made on appeal cannot create a genuine issue of material fact to preclude summary judgment.

| -Moreover, we also disagree that the affidavit of Ronald Lane creates an issue of material fact as to whether Plaintiff was terminated for cause. Lane stated in his affidavit that “[ajccording to Fer-rara, he has been terminated as an officer,” and “[sjubstantial grounds existed for the termination of Ferrara with cause.” Neither of these statements is a declaration that Plaintiff was in fact terminated for cause and cannot serve to create a genuine issue of fact to thwart Plaintiffs motion for summary judgment.

LAEL also argues a “mistake was made in the drafting of the Employment Agreement,” which would entitle it to reform the contract. We note at the hearing on Plaintiffs Motion for Partial Summary Judgment, LAEL acknowledged it prepared the Employment Agreement and “made a mistake” by “fail[ing] to include [a] for-cause provision in the employment agreement that was issued.” However, despite the apparent contention that a “mistake” was made in the drafting of the Employment Agreement, no such allegation was made in LAEL’s Answer and Reconventional Demand. As Plaintiff notes, reformation of a contract is an equitable remedy which must be affirmatively sought by the party claiming the relief, and that party must bear the burden of establishing mutual error and must establish it by clear and convincing evidence. See Walker v. Jim Austin Motor Company, 162 So.2d 135 (La.App. 1 Cir.1964). LAEL failed to seek such relief, and did not mention any allegation of mistake until the filing of the opposition to the motion for partial summary judgment.

LAEL also contends in brief that the Employment Agreement includes terms it did not contend for it to contain. Louisiana Civil Code Article 2046 provides, “[w]hen the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent.” However, as LAEL acknowledged in its answer, the “Employment Agreement is a written document, which is itself the sole and best evidence of its | (¡contents.” The agreement clearly sets forth that LAEL will pay Plaintiff the compensation due as long as he or his wife are guaranteeing any loans to LAEL. There is no dispute that Plaintiff and his wife have continued to guarantee several loans on LAEL’s behalf.

Lastly, as Plaintiff notes, the Employment Agreement provides by its own terms that termination of the employee can only occur by providing “written notice by the Company to the Employee.” The record indicates no such notice was ever provided, nor does LAEL allege any such notice was given. Thus, under the terms of the Employment Agreement, no termination for cause occurred in this case.

LAEL also argues because Plaintiff allegedly failed to perform his obligations under the Employment Agreement, LAEL has the right to consider the agreement dissolved. Paragraph 10 of the Employment Agreement specifically provides that the provisions of Paragraph 9, which provide that as long as the Employee, his spouse, or estate continue to guaranty the loans, he shall receive his compensation, “shall survive” even if the remainder of the agreement is terminated. The sole issue of Plaintiffs Motion for Partial Summary Judgment was his entitlement to post-employment compensation. Thus, even assuming LAEL’s factual allegations had any merit, they do not create a genuine issue of material fact relative to the relief sought by Plaintiff in his Motion for Partial Summary Judgment.

In conclusion, we find the trial court correctly determined no genuine issues of material fact existed which prevented it from rendering summary judgment in Plaintiffs favor. By the clear and explicit provisions of the Employment Agreement, Plaintiff was entitled to receive the agreed upon compensation provided he and his wife continued to guarantee loans on LAEL’s behalf. The record is unequivocal that Plaintiff and his wife are currently guarantors on outstanding loans made to LAEL. The trial court did not err in finding parol |7evidence was inadmissible to vary the terms of the Employment Agreement, as the terms of the agreement were clear.

DECREE

For the foregoing reasons, we affirm the trial court’s grant of Plaintiffs Motion for Partial Summary Judgment. All costs of this appeal are assessed to appellant, LAEL.

AFFIRMED.


author: JAMES F. McKAY, III, Chief Judge.

text:
    LIONS GATE FILMS, INC. v. JONESFILM and NTTS Productions, Ltd.
    No. 2012-CA-1452.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 27, 2013.

      William J. Wegmann, Jr., Wegmann & Adams, LLC, Metairie, LA, for Plaintiff/Appellant.
    David F. Waguespack, Carver, Darden, Koretzky, Tessier, Finn, Blossman & Ar-eaux, LLC, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Chief Judge JAMES F. McKAY, III, Judge MAX N. TOBIAS, Judge SANDRA CABRINA JENKINS).
   JAMES F. McKAY, III, Chief Judge.

hln this ease, which involves making a foreign judgment executory and the satisfaction of that judgment, the interve-nor/appellant, Leeway Properties Inc., appeals the trial court’s judgment granting an exception of no right of action in favor of appellant, Jonesfilm, and the dismissal of this case. We affirm.

FACTS AND PROCEDURAL HISTORY

On June 19,1981, Peter and Susan Hoffman were married in Los Angeles, California. On June 11, 1997, they acquired by cash sale a piece of immovable property located at 910-912 Royal Street in New Orleans, Louisiana. Mr. and Mrs. Hoffman became legally separated under California law in January of 1999. Thereafter, Mrs. Hoffman began to reside in New Orleans. On August 31, 2002, Mr. and Mrs. Hoffman entered into a marital settlement agreement to partition their marital property. Pursuant to this agreement, Mr. and Mrs. Hoffman transferred the Royal Street property to Leeway Properties, Inc., which was solely owned by Mrs. Hoffman, on July 7, 2003. Neither the marital settlement 12agreement, nor the act of transfer of the Royal Street property were recorded in Orleans Parish.

Lions Gate Films, Inc., Jonesfilm, and NTTS Productions, Ltd. (which is the alter ego of Peter Hoffman) engaged in arbitration in California regarding certain motion picture rights. On July 20, 2004, the California arbitrator rendered an arbitration award. This award was amended on August 31, 2004. On September 17, 2004, Lions Gate filed a petition in Los Angeles County Superior Court to confirm the arbitration award. On March 18, 2004, the California court confirmed the award in favor of Jonesfilm, awarding it the sum of $290,911.00 plus interest from the date of July 20, 2004 at the rate of ten percent (10%) per annum until paid. However, NTTS and Mr. Hoffman failed to make any payments on the judgment.

After learning of the existence of the Royal Street property, on January 20, 2006, Jonesfilm filed a petition to make the California judgment executory in Louisiana. On March 14, 2006, the trial court made the California judgment executory in Louisiana. This judgment was recorded in the mortgage records for Orleans Parish on the following day. On April 18, 2006, the trial court granted a consent judgment between Jonesfilm and Mr. Hoffman staying the execution of the judgment until Mr. Hoffman’s appeal of the foreign judgment was concluded. After the California trial court’s judgment was affirmed, the court below lifted its stay on October 3, 2006.

|sOn July 29, 2011, Jonesfilm requested a writ of fieri facias seeking judicial seizure and sale of the Royal Street property. The trial court issued a writ of fieri facias on August 10, 2011 and a sheriffs sale of the property was scheduled for November 17, 2011. Instead of intervening in the instant case, Leeway initiated a separate action for preliminary and permanent injunction and declaratory judgment in Civil District Court on October 14, 2011. Jon-esfilm removed that action to federal court. Applying Louisiana’s public records doctrine, the federal court found that Jonesfilm was entitled to enforce its March 2006 recorded judicial mortgage on the Royal Street property and that Leeway’s efforts to enjoin foreclosure was without merit. Therefore, on November 8, 2011, the federal court denied the preliminary injunction.

On November 15, 2011, in order to stop the sheriffs sale of the Royal Street property, Leeway paid to Jonesfilm $511,748.48 and paid an additional $16,925.43 to the sheriffs office for its costs. After Leeway’s check was deposited and the funds were cleared to Jonesfilm and the sheriffs fees were paid, Jonesfilm filed a “Satisfaction of Judgment” with the trial court and recorded the “Cancellation of Judgment” with the Orleans Parish Recorder of Mortgages on December 21, 2011.

On December 13, 2011, Leeway filed a petition to intervene in the instant case. However, Leeway had transferred its interest in the Royal Street property to | ¿Royal Alice Properties LLC and the transfer was recorded in the conveyance records of Orleans Parish on December 5, 2011. In response to Leeway’s petition for intervention, Jonesfilm filed several exceptions, including an exception of no right of action, which the trial court granted on June 18, 2012. It is from this judgment that Leeway now appeals.

DISCUSSION

On appeal, Leeway raises the following assignment of error: the district court erred as a matter of fact and of law in the judgment of dismissal of June 18, 2012 granting Jonesfilm’s exception of no right of action to Leeway’s petition for intervention on the basis that this action was not currently pending when the petition for intervention was filed on December 13, 2011, since this action was still pending on that date as a matter of law.

Peremptory exceptions raising the objection of no right of action are reviewed de novo on appeal as they involve questions of law. Turner v. Law Firm, of Wolff & Wolff, 2007-1589, p. 2 (La.App. 4 Cir. 6/4/08), 986 So.2d 889, 891. An appellate court reviewing a lower court’s ruling on an exception of no right of action should focus on whether the particular plaintiff has a right to bring the suit and is a member of the class of persons that has a legal interest in the subject matter of the litigation, assuming the petition states a cause of action for that person. Hood v. Cotter, 2008-0215, p. 17 (La.12/2/08), 5 So.3d 819, 829; Badeaux v. Southwest Computer Bureau, Inc., 2005-0612, 2005-0719, pp. 6-7 (La.3/17/06), 929 So.2d 1211, 1217.

|sIn the instant case, we must examine whether Leeway has a right to intervene and has a legal interest in the subject matter of the litigation. It is well settled that courts will not decide abstract, hypothetical, or moot controversies, or render advisory opinions with respect to controversies. In The Matter of E.W., 2009-1589, p. 8 (La.App. 1 Cir. 5/7/10), 38 So.3d 1033,1037. An issue is moot when a judgment or decree on that issue has been “deprived of practical significance” or “made abstract or purely academic.” Id.; City of Hammond v. Parish of Tangipa-hoa, 2007-0574, p. 7 (La.App. 1 Cir. 3/26/08), 985 So.2d 171, 178 {citing Cat’s Meow, Inc. v. City of New Orleans Through Department of Finance, 98-0601, pp. 8-9 (La.10/20/98), 720 So.2d 1186, 1193). A case may become moot for several reasons. Some examples are that: (1) there has been a change in the law, (2) the defendant paid the monies owed, (3) the wrongful behavior has passed and is not likely to recur, or (4) a party has died. Id. By the time Leeway filed its petition for intervention, the judgment had already been paid to Jonesfilm and the judicial mortgage had been satisfied thereby making the instant case, which Leeway sought to intervene in, moot.

Furthermore, Leeway failed to satisfy each of the prerequisites for intervention under La. C.C.P. art. 1091. According to La. C.C.P. art. 1091:

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 plaintiffs demand; or
(3) Opposing both plaintiff and defendant.

La. C.C.P. art. 1091.

|fiThe first prerequisite of La. C.C.P. art. 1091 is that there is 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. An intervenor takes the proceedings as he finds them; the intervenor cannot change the issue between the parties, and can raise no new one. ANR Pipeline Co. v. Louisiana Tax Com’n, 2011-0425, p. 16 (La.App. 1 Cir. 8/23/11), 76 So.3d 521, 533, rev’d in part on other grounds, 2011-2078 (La.5/8/12), 94 So.3d 734. Leeway argues that the action in the instant case technically remained pending until the “Cancellation of Mortgage” and “Satisfaction of Judgment” were formally recorded. However, once the $511,748.48 was paid to Jonesfilm there was no longer any dispute between Mr. Hoffman and Jonesfilm and the controversy became moot. As such, there was no action in which Leeway could intervene. Allowing Leeway to intervene would be creating a new issue.

A second requirement for intervention under this article is that the interve-nor has a justiciable right against a party to the litigation. For an intervention, it is sufficient that the intervenor have a justi-ciable right related to or connected with the object of the pending action against one or more of the parties thereto. Biggs v. Hatter, 45,066, p. 11 (La.App. 2 Cir. 3/3/10), 32 So.3d 355, 362. If a justiciable interest required for third-party intervention exists, it must be so related to or connected to the facts or object of the principal action that a judgment on the principal action will have a direct impact on the intervenor’s rights. Mangano Consultants, Inc. v. Bob Dean Enterprises, Inc., 2005-449, p. 7 (La.App. 5 Cir. 1/17/06), 921 So.2d 1081, 1086. In the instant case, once Jonesfilm was paid there was no longer an object of the action between Jonesfilm and Mr. Hoffman. 17Accordingly, Leeway could not have a justiciable interest in an action for which the object no longer existed.

Leeway was also unable to meet the final two prerequisites of La. C.C.P. art. 1091. Leeway was unable to satisfy the requirement of connexity because Jones-film’s instant action against Mr. Hoffman had already been resolved by payment to Jonesfilm of the March 2006 judgment, which satisfied the judicial mortgage. Leeway was also unable to satisfy the article’s requirement that Leeway join with Mr. Hoffman in demanding the same or similar relief against Jonesfilm or in resisting Jonesfilm’s demands.

CONCLUSION

For the above and foregoing reasons, we find that Leeway was unable to establish a right to intervene in the action between Jonesfilm and Mr. Hoffman, as the action was no longer pending at the time Leeway sought to intervene. Therefore, we affirm the trial court’s granting of Jonesfilm’s exception of no right of action and the dismissal of Leeway’s petition for intervention.

AFFIRMED

      . This property is also known as the Princess of Monaco Condominiums.

      . Leeway Properties, Inc. v. Jonesfilm and Peter M. Hoffman, Case No. 11-10987

      . Leeway Properties, Inc. v. Jonesfilm, 2012 WL 4471848 (E.D.La.2012)

      . On November 9, 2011, Whitney Bank (formerly Hancock Bank of Louisiana) filed a petition for intervention, cancellation of judicial sale, and ranking of creditors. On November 15, 2011, Whitney sought injunctive relief. That same day, the petition for injunction was dismissed as moot. On February 16, 2012, Whitney moved to dismiss with prejudice its petition for intervention. The trial court then dismissed with prejudice Whitney’s motion to intervene.


author: MARC E. JOHNSON, Judge.

text:
    PARISH OF JEFFERSON v. DAUGHTERS OF ST. PAUL INC. d/b/a Pauline Books & Media.
    No. 12-CA-494.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 27, 2013.

      Andrew M. Maestri, Office of the Parish Attorney, Jefferson, LA, for Plaintiff/Ap-pellee.
    Richard L. Traína, Attorney at Law, Metairie, LA, for Defendant/Appellant.

      Panel composed of Judges MARC E.' JOHNSON, ROBERT A. CHAISSON and STEPHEN J. WINDHORST.
   MARC E. JOHNSON, Judge.

12Defendant/AppeIlant, Daughters of St. Paul, Inc. d/b/a Pauline Books & Media (hereinafter referred to as “Pauline Books”), seeks review of the trial court’s granting of summary judgment on the enforcement of a zoning ordinance in favor of Plaintiff/Appellee, Parish of Jefferson (hereinafter referred to as “the Parish”), in the 24th Judicial District Court, Division “M”. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On June 15, 2002, Jefferson Parish Ordinance No. 21597 became effective. The ordinance set forth regulations relative to the use and lease of the Parish’s rights-of-ways within the Comprehensive Zoning Ordinance for Commercial Parkway Overlay Zone (hereinafter referred to as “CPZ”) and the appropriate compensation for such use. Pauline Books owns and operates a business at 4403 Veterans Memorial Boulevard, which is within the comprehensive zoning area subject to the CPZ. Pauline Books is a non-profit foreign corporation that has a community of religious women who vowed their lives to sharing their beliefs through media. The area of property located directly in front of the business is owned by the Parish but is used for parking by Pauline Books. Since 2002, the | sParish had attempted without success to enter into a CPZ lease with Pauline Books, which would allow the business to continue to use the property in consideration of annual lease payments.

On September 20, 2008, the Parish filed an action against Pauline Books, alleging the business violated the Jefferson Parish Municipal Code by failing to lease the 2,400 square feet of right-of-way in front of the business that was being used for parking. The petition requested that the trial court order Pauline Books to enter into and pay a lease for the right-of-way and make payment in the amount of $18,816.00 for the failure to lease the property for the years of 2003-2008. Pauline Books answered the Petition, denying that the Parish was entitled to relief and asserting affirmative defenses. One of the defenses asserted by Pauline Books was the CPZ was an impermissible land-use regulation prohibited by the Religious Land Use and Institutionalized Person’s Act of 2000 (hereinafter referred to as “RLUIPA”), 42 U.S.C.A § 2000cc, et seq. Pauline Books also reconvened, seeking a declaratory judgment that the Parish’s claims were barred by the RLUIPA.

On September 15, 2009, the Parish moved for summary judgment that Pauline Books be ordered to enter into the lease for the right-of-way and to have the recon-ventional demand dismissed. Pauline Books also moved for summary judgment on April 21, 2010, asserting it was entitled to a judgment as a matter of law and requested exemption from the CPZ under RLUIPA. The hearing on the motions was held on June 15, 2010. In its judgment rendered on August 24, 2010, the trial court found the RLUIPA did not apply to this action, granted summary judgment in favor of the Parish, and denied Pauline Books’ motion.

On September 1, 2010, Pauline Books moved for a new trial or for reconsideration of the August 24, 2010 judgment. The Parish moved for summary | ¿judgment to set the amount owed for the CPZ lease payments it claimed it was entitled to receive and opposed Pauline Books’ motion on December 20, - 2010. On January 17, 2012, the trial court denied Pauline Books’ motion and granted summary judgment in favor of the Parish. The trial court awarded the Parish $6,720.00 per year for the years of 2008-2012, ordered Pauline Books to pay the amounts sought by the Parish as they come due in the future, and found that the Parish’s claims for any payments owed prior to 2002 were prescribed. The instant appeal followed.

ASSIGNMENT OF ERROR

On appeal, Pauline Books alleges the trial court erred by finding the CPZ ordinance did not impose a substantial burden on the exercise of its religious beliefs and practices, and that 42 U.S.C.A § 2000cc, et seq., did not apply to this action.

LAW AND ANALYSIS

General Law

Appellate courts review summary judgments de novo, using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate, asking whether there is any genuine issue of material fact, and whether the mover is entitled to judgment as a matter of law. Favre v. Boh Bros. Const. Co., L.L.C., 11-451, p. 7 (La.App. 5 Cir. 3/13/12); 90 So.3d 481, 485, writ denied, 12-1024 (La.6/22/12); 91 So.3d 976. The summary judgment procedure is favored and is designed to secure the just, speedy and inexpensive determination of every action, except those disallowed by law. Id. Summary judgment shall be rendered if the pleadings, depositions, answers to interrogatories, admissions on file, and any affidavits show that there is no genuine issue as to material fact, and that the movant is entitled to judgment as a matter of law. Id.

| sThe initial burden of proof is with the mover to show that no genuine issue of material fact exists. Chambers-Johnson v. Applebee’s Restaurant, 12-98, p. 5 (La.App. 5 Cir. 9/11/12); 101 So.3d 473, 475-476. If the moving party will not bear the burden of proof at trial, the moving party must only point out that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Id. The non-moving party must then produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. Id. at 5-6; 101 So.3d at 476. If the non-moving party fails to do so, there is no genuine issue of material fact, and summary judgment should be granted. Id.

Religious Land Use and Institutionalized Person’s Act

Pauline Books alleges the trial court erred in granting summary judgment as a matter of law in favor of the Parish on the basis the CPZ ordinance did not impose a substantial burden on the exercise of its religious beliefs and practices, and that the RLUIPA did not apply to this action. Pauline Books argues the CPZ ordinance imposes a substantial burden on its exercise of religious beliefs and practices through making its use of the building on its property effectively impractical. Pauline Books avers the choice of either leasing the right-of-way from the Parish or forfeiting the right to use the right-of-way brings significant pressure that directly coerces it to conform its behavior or effectively bars it from using its building on the property in the exercise of its religion. Pauline Books contends leasing the right-of-way would coerce it to change its behavior by either increasing its income (through increasing costs in the Pauline Books’ outlet or charging for services, such as, counseling or use of the chapel) or by decreasing the services and goods it provides in the exercise of its religion. Pauline Books further contends that not leasing the right-of-way would effectively bar it from using the property in | fithe exercise of its religion because no vehicle would be able to access the property from Veterans Memorial Blvd. With either choice, Pauline Books argues the imposition of the CPZ ordinance is impermissible under RLUIPA.

Conversely, the Parish avers the trial court’s ruling was correct because it is not requiring Pauline Books to modify its religious behavior and/or violate its religious beliefs; it is simply requiring Pauline Books to comply with the same provisions that other business owners along Veterans Memorial Blvd. are required to comply— payment of the fair market value for land owned by the Parish. Thus, the Parish contends the CPZ ordinance is facially neutral and does not impose a substantial burden on Pauline Books. Additionally, the Parish avers it is constitutionally prohibited pursuant to La. Const. Art. VII, § 14(A) from allowing Pauline Books to use public property without adequate consideration. The Parish contends that an outright exemption to the imposition of the CPZ ordinance for Pauline Books would be in violation of the Louisiana Constitution and Louisiana Supreme Court jurisprudence.

RLUIPA is the latest of long-running congressional efforts to accord religious exercise heightened protection from government-imposed burdens, consistent with the United States Supreme Court’s precedents. Cutter v. Wilkinson, 544 U.S. 709, 714, 125 S.Ct. 2113, 2117, 161 L.Ed.2d 1020 (2005). RLUIPA borrows important elements from the Religious Freedom Restoration Act of 1993, but RLUIPA is less sweeping in scope. Sossamon v. Texas, — U.S. -, 131 S.Ct. 1651, 1656, 179 L.Ed.2d 700 (2011). It targets two areas of state and local action: land-use regulation and restrictions on religious exercise of institutionalized persons. Id.

The first subsection of Section 2 of RLUIPA contains the Substantial Burden Clause, which prohibits the imposition or implementation of a land-use regulation |7in a manner that imposes a “substantial burden” on the religious exercise of a person, assembly or institution, unless the government can show that the regulation furthers a “compelling governmental interest” by “the least restrictive means.” Id. at 290. RLUIPA defines a “land use regulation” as

a zoning or landmarking law ... that limits or restricts a claimant’s use or development of land (including a structure affixed to land), if the claimant has an ownership, leasehold, easement, servitude, or other property interest in the regulated land or a contract or option to acquire such an interest.

42 U.S.C.A § 2000ce-5(5).

Thus, “a government agency implements a ‘land use regulation’ only when it acts pursuant to a ‘zoning or landmarking law* that limits the manner in which a claimant may develop or use property in which the claimant has an interest.” Prater v. City of Burnside, Ky., 289 F.3d 417, 434 (6th Cir .2002).

Under RLUIPA, the government bears the burden of persuasion once a religious plaintiff establishes a prima facie case of a violation. Opulent Life Church v. City of Holly Springs, 697 F.3d 279, 290 (5th Cir.2012). In order for plaintiff to establish a prima facie case, the facts must sufficiently show that governmental activity: 1) imposes a substantial burden, 2) on the “religious exercise,” 3) of a person, institution or assembly. 42 U.S.C. § 2000cc(a)(l). If a plaintiff produces prima facie evidence to support a claim alleging a violation of the Free Exercise Clause or a violation of Section 2 of RLUIPA, the government shall bear the burden of persuasion on any element of the claim, except that the plaintiff shall bear the burden of persuasion on whether the law (including a regulation) or government practice that is challenged by the claim substantially burdens the plaintiffs exercise of religion. Opulent Life Church at 291.

RLUIPA does not define “substantial burden.” However, it has been held that in order for a land use regulation to impose a “substantial burden,” it must be 18“oppressive” to a “significantly great” extent. San Jose Christian Coll. v. City of Morgan Hill, 360 F.3d 1024, 1034 (9th Cir.2004). • That is, a “substantial burden” on “religious exercise” must impose a significantly great restriction or onus upon such exercise. Id. A substantial burden “must place more than an inconvenience on religious exercise; a ‘substantial burden’ is akin to significant pressure which directly coerces the religious adherent to conform its behavior accordingly.” Id.

In the instant matter, Pauline Books is successful in proving it is a religious institution exercising its religious freedom. However, we find Pauline Books has failed to establish a prima facie case that the CPZ ordinance imposes a substantial burden on its exercise of religion. We do not find the leasing of the right-of-way infringes on Pauline Books’ religious behavior. The financial burden of leasing the right-of-way, which is being applied to all businesses in the comprehensive zoning area, is not a great restriction or onus upon Pauline Books’ religious exercise.

Additionally, forfeiting use of the right-of-way does not make the property “effectively impractical.” Ingress and egress to the property would not be prohibited; parking in the spaces in front of the property would be prohibited. We do not find Pauline Books’ inconvenience of either having to find alternate parking around the building or having to possibly increase its income rises to the level of “substantial burden” intended by RLUIPA.

Because of Pauline Books’ failure to present a prima facie case, we hold RLUI-PA does not apply to the Parish’s CPZ ordinance and further analysis under the Act is pretermitted. Therefore, we find summary judgment in favor of the Parish appropriate.

[9DECREE

For the foregoing reasons, we affirm the trial court’s granting of summary judgment in favor of the Parish and against Pauline Books. Each party is to bear its own costs of this appeal.

AFFIRMED


author: ROBERT M. MURPHY, Judge.

text:
    Michael GOLDMAN v. John DOE 1 and 2, Darrell Dumestre, Gad Entertainment, LLC d/b/a Club Eden, Essex Insurance Company.
    No. 12-CA-531.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 27, 2013.

      Kevin M. Steel, Attorney at Law, Gret-na, LA, for Plaintiff/Appellant.
    R. Todd Musgrave, Brent J. Carbo, Attorney at Law, New Orleans, LA, for In-tervenor/Appellee.
    Panel composed of Judges ROBERT M. MURPHY, STEPHEN J. WINDHORST, and HANS J. LILJEBERG.
   ROBERT M. MURPHY, Judge.

|2The plaintiff/appellant, Michael Goldman, appeals the trial court’s judgment granting the intervenor Founders Insurance Company’s motion for summary judgment, which held that the Founders insurance policy at issue does not provide coverage to any defendant named in appellant’s lawsuit and that Founders Insurance Company has no obligation to provide a defense to any defendant named in appellant’s lawsuit. For the reasons that follow, we affirm the judgment of the trial court.

FACTS AND PROCEDURAL HISTORY

On July 30, 2010, the plaintiff/appellant, Michael Goldman, filed a petition for damages against defendants, John Doe 1, John Doe 2, Darrell Dumestre and GAD Entertainment, LLC d/b/a Club Eden (“Club Eden”) arising out of an alleged attack that occurred on July 30, 2009 at Club Eden, a business establishment located at 3229 Lisa Drive, Metairie, Louisiana. In his petition, Mr. Goldman alleged that he sustained bodily injuries after he was suddenly and without warning, “viciously attacked” by the defendants, John Doe 1 and John Doe 2, |3while attempting to leave Club Eden. Mr. Goldman further alleged that John Doe 1 and John Doe 2 were employees of defendants, Darrell Dumes-tre and Club Eden, and that they were acting within the course and scope of their employment at the time of the incident.

During Mr. Goldman’s deposition, he testified as to the details of the incident at issue. He claimed that as he was attempting to leave Club Eden, one of the bouncers stopped him and told him that he had an outstanding bar tab. Mr. Goldman then informed the bouncer that he had already closed out his tab and proceeded to exit through the front door. However, Mr. Goldman claimed that the front door was locked. As he turned around, Mr. Goldman testified that two bouncers approached him and that one of the bouncers struck him, causing him to pass out.

On December 7, 2010, the intervenor/ap-pellee Founders Insurance Company (“Founders”), filed a petition of intervention alleging that Founders issued a policy of general liability insurance to Club Eden (providing both CGL coverage and liquor liability coverage), bearing Policy No. CPLA000095, effective October 18, 2008 to October 18, 2009 (hereinafter, the “Founders policy”). Founders alleged that although the Founders policy at issue was in effect at the time of the incident set forth in Mr. Goldman’s petition, the incident was not covered due to the assault and battery exclusions provided in both the CGL coverage and the liquor liability coverage of the Founders policy.

Subsequently, Founders filed a motion for summary judgment. In its motion for summary judgment, Founders sought a ruling that pursuant to the assault and battery exclusion of the Founders policy, (1) the Founders policy at issue does not provide coverage to any defendant herein for any liabilities or damages asserted by Mr. Goldman, and (2) that Founders has no obligation, under the Founders policy |4or law, to provide a defense to any defendant for any liabilities or damages asserted by Mr. Goldman. In support of its motion, Founders attached' an affidavit of a USG Insurance Services representative, Blanche Myers, certifying that the attached insurance policy is a true and correct certified copy of the Founders policy in effect on the date of the incident; a copy of Mr. Goldman’s petition; and excerpts of Mr. Goldman’s deposition transcript detailing his account of the alleged attack.

In his memorandum opposing Founders’ motion for summary judgment, Mr. Goldman alleged that Founders is not entitled to summary judgment because genuine issues of material fact exist as to whether an assault and battery occurred. In addition, Mr. Goldman alleged that certain language of the assault and battery exclusion was vague and ambiguous.

On October 12, 2011, Founders’ motion for summary judgment came before the trial court for hearing, and the court granted Founders’ motion.- On November 9, 2011, the trial court entered a judgment granting Founders’ motion for summary judgment, finding “that the Founders insurance policy at issue does not provide coverage to any defendant herein for any liabilities or damage asserted by Plaintiff in this lawsuit and that Founders Insurance Company has no obligation, under the subject policy or law, to provide a defense to any defendant herein for any liabilities or damages asserted by Plaintiff in this lawsuit.”

Mr. Goldman, sought and was granted a devolutive appeal on December 12, 2011.

STANDARD OF REVIEW

Louisiana Code of Civil Procedure Article 966 provides that a motion for summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, show that there is no genuine issue of material fact, and that the mover is entitled |fito summary judgment as a matter of law.” Hin-chen v. Louie Dabdoub Sell Cars, Inc., OS-218 (La.App. 5 Cir. 10/6/05); 912 So.2d 715, 717, writ denied, 05-2356 (La.3/17/06); 925 So.2d 544 (citing La. C.C.P. art. 966(B)). It is well settled that appellate courts review summary judgments de novo, using the same criteria applied by the trial courts to determine whether summary judgment is appropriate. Garrison v. Tanenbaum, 02-1181 (La.App. 5 Cir. 4/8/03); 846 So.2d 40, 42; (citing Smith v. Our Lady of the Lake Hosp., 93-2512 (La.7/5/94); 639 So.2d 730, 750). Therefore, this court must consider whether there is any genuine issue of material fact, and whether the movant is entitled to judgment as a matter of law. Id.

The burden of proof remains with the movant. In considering a motion for summary judgment, the court shall render judgment “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” Rudolph v. D.R.D. Towing Co., LLC, 10-629 (La.App. 5 Cir. 1/11/11), 59 So.3d 1274, 1277 (citing La. C.C.P. art. 966). Once the motion for summary judgment has been properly supported by the moving party, the failure of the adverse party to produce evidence of a material factual dispute mandates the granting of the motion. Garrison, 846 So.2d at 43.

DISCUSSION

Insurance Coverage

A dispute as to the issue of whether, as a matter of law, the language of an insurance policy provides coverage to a party, can properly be resolved within the context of a motion for summary judgment. Domingue v. Reliance Ins. Co., 619 So.2d 1220, 1223 (La.App. 3 Cir.1993). An insurer seeking to avoid coverage through summary judgment bears the burden of proving the applicability of an |fiexclusion within a policy. Doerr v. Mobil Oil Corp., 00-0947 (La.12/19/00); 774 So.2d 119, 124, modified on other grounds on reh’g, 00-0947 (La.3/16/01); 782 So.2d 573. Summary judgment declaring a lack of coverage under an insurance policy may not be rendered unless there is no reasonable interpretation of the policy, when applied to the undisputed material facts shown by the evidence supporting the motion, under which coverage could be afforded. Beck v. Burgueno, 43,557 (La.App. 2 Cir. 9/17/08); 996 So.2d 404, 409.

Insurance Policy Interpretation

An insurance policy is an agreement between the parties and should be interpreted by using ordinary contract principles. Mattingly v. Sportsline, Inc., 98-230 (La.App. 5 Cir. 10/28/98); 720 So.2d 1227, 1229, writ denied, 98-2938 (La.1/29/99); 736 So.2d 830; Ledbetter v. Concord General Corp., 95-0809 (La.1/6/96), 665 So.2d 1166. The extent of coverage is determined by the parties’ intent, as reflected by the words of the policy. Id. Unless the words of the policy have acquired a technical meaning, the words used in the policy will be construed using their plain, ordinary and generally prevailing meaning. La. C.C. art. 2947; Louisiana Ins. Guar. Ass’n. v. Interstate Fire & Cas. Co., 93-0911 (La.1/14/94); 630 So.2d 759. The agreement must be enforced as written if the policy wording at issue is clear and expresses the intent of the parties. Ledbetter, supra; Pareti v. Sentry Indem. Co., 536 So.2d 417 (La. 1988).

An insurance company may limit coverage in any manner, as long as the limitations do not conflict with statutory provisions or public policy. Reynolds v. Select Properties, Ltd., 93-1480 (La.4/11/94), 634 So.2d 1180. The exclusionary provisions of an insurance contract are strictly construed against the insurer, and any ambiguity in the exclusion is construed in favor of the insured. Garcia v. St. Bernard Parish Sch. Bd., 576 So.2d 975 (La.1991).

|^Founders’ Motion for Summary Judgment

In its motion for summary judgment, Founders raises two primary issues: (1) whether the Founders policy provides coverage to any defendant herein for any of the claims asserted by Mr. Goldman; and (2) whether Founders has any obligation under the policy to provide a defense to any defendant herein for any of the claims asserted by Mr. Goldman. Because Founders seeks to avoid coverage through its motion for summary judgment, it bears the burden of proving that the assault and battery exclusion at issue applies.

Founders submitted with its motion for summary judgment an affidavit attached to the Founders policy, which provides both CGL coverage and liquor liability coverage to its insured, Club Eden. Because “pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits ... need not be formally introduced into evidence at the hearing on the motion if they are already ‘on file’ or physically placed into the record prior to the hearing on the motion,” the Founders policy verified by affidavit is properly before this Court on appeal. Banks v. Parish of Jefferson, No. 12-215, 12-488, 108 So.3d 1208, 1219, 2013 WL 336678, at *9 (La.App. 5 Cir. Jan. 30, 2013) (citing Sheffie v. Wal-Mart Louisiana LLC, 11-1038 (La.App. 5 Cir. 5/31/12); 92 So.3d 625, 629).

The CGL coverage portion of the Founders policy contains an assault and battery exclusion, which provides as follows:

This insurance does not apply to:

1. Assault and/or Battery/Negligent Hiring
“Bodily injury,” “property damage,” or “personal and advertising injury” arising from:
(a) Assault and/or battery committed by any insured, any “employee” of an insured, or any other person;
(b) The failure to suppress or prevent assault and/or battery by any person in subparagraph l.(a) above;
|8(c) The selling, serving or furnishing of alcoholic beverages which result in an assault and/or battery; or
(d) The negligent:
1) Employment;
2) Investigation;
3) Supervision;
4) Reporting to the proper authorities, or failure to so report; or
5) Retention
of or by a person for whom any insured is or ever was legally responsible and whose conduct would be excluded by subparagraphs l.(a) through l.(c) above.

The liquor liability coverage portion of the policy also contains an assault and battery exclusion, which provides as follows:

2. Exclusions to Coverage
k. Assault and/or Battery
“Injury” arising from:
(1) assault and/or battery committed by any “insured,” any “employee” of an “insured,” or any other person;
(2) The failure to suppress or prevent an assault and/or battery by any person in subparagraph k.(l) above;
(3) The selling, serving or furnishing of alcoholic beverages which results in an assault and/or battery; or
(4) The negligent:
a. Employment;
b. Investigation;
c. Supervision;
d. Reporting to the proper authorities, or failure to so report; or
e. Retention
of or by any person for whom any “insured” is or ever was legally responsible and whose conduct would be excluded by subparagraphs k.(l) through k.(3) above.

As for Founders’ duty to defend under the policy, both the CGL coverage portion and the liquor liability coverage portion contain provisions stating that Founders has no duty to defend an insured against any suit seeking damages for bodily injury or property damage to which the insurance policy does not apply.

| ^Issues on Appeal

On appeal, Mr. Goldman contends that summary judgment was inappropriate because (1) Founders relies solely upon the allegations of Mr. Goldman’s petition in support of its argument that the policy’s assault and battery exclusions apply; (2) the defendants have denied all of the allegations of Mr. Goldman’s petition in their answer thereto; (3) the cases cited by Founders in support of its motion for summary judgment do not involve patron/employee fights or respondeat superior; and (4) the management company of Club Eden is an insured under the Founders policy.

With respect to the first issue, Mr. Goldman claims that Founders’ motion for summary judgment was not properly supported because Founders relies solely upon the “incorrect and wholly unsupported allegations” of Mr. Goldman’s petition in support of its motion, without offering sworn deposition testimony or affidavits substantiating those allegations. Mr. Goldman further alleges that there have not been any depositions, sworn testimony or affidavits regarding the incident and that Founders has failed to develop facts supporting the allegations of his petition.

Contrary to Mr. Goldman’s assertions, the record not only shows that the deposition of Mr. Goldman himself was conducted in this matter, but it also shows that Founders submitted Mr. Goldman’s deposition testimony regarding his account of the alleged attack in support of its motion for summary judgment. Furthermore, Mr. Goldman seemingly urges this Court to find that Founders’ reliance upon the allegations of Mr. Goldman’s petition in support of its motion was improper by referring to his own allegations as “incorrect and wholly unsupported.”

| inThe proper inquiry in a question involving insurance coverage is whether, assuming the truth of plaintiffs allegations, coverage is excluded under the assault and battery exclusion. Beck v. Bur-gueno, supra at 410. While it is true that whether the alleged attack occurred is in dispute, that issue is not material to the determination of whether coverage is afforded under the policy at issue. Rather, that issue concerns the possible liability of the defendants.

When applied to the instant case, the allegations of Mr. Goldman’s petition provide that he was “viciously attacked” by two employees of Club Eden while attempting to leave the premises, which re-suited in “serious and grave bodily injuries.” The Louisiana Supreme Court has defined a battery as “a harmful or offensive contact with a person, resulting from an act intended to cause the plaintiff to suffer such contact.” Caudle v. Betts, 512 So.2d 389, 391 (La.1987). “It is not necessary for the act to intend to inflict actual damage, rather, it is ‘sufficient if the actor intends to inflict either a harmful or offensive contact without the other’s consent.’ ” Mattingly, 720 So.2d at 1230 (citing Cau-dle, 512 So.2d at 391).

Founders provided both CGL and liquor liability coverage to its insured, Club Eden, for certain damages arising from “bodily injury” or “property damage.” The CGL coverage and the liquor liability coverage both contain assault and battery exclusions that preclude coverage for injury arising from assault and/or battery committed by the insured, employees of the insured, or anyone else. The exclusions also specifically exclude coverage for any claims of failure to suppress assault and/or battery; the selling, serving or furnishing of alcohol which results in an assault and/or battery; and negligent employment, investigation, supervision, reporting or failure to report, or retention which results in an assault and/or battery. The exclusionary clauses are clear and unambiguous.

In Assuming that the allegations of Mr. Goldman’s petition are true, we find that the act of Club Eden’s employees “viciously” attacking Mr. Goldman constitutes a battery, and is, therefore, excluded by the assault and battery exclusions of the Founders policy. This is so because even though there may be some dispute as to whether an actual attack occurred, there is no dispute that if an injury occurred it resulted from an assault and battery, which is excluded from coverage under the assault and battery exclusions of the Founders policy. Therefore, this assignment of error is without merit and does not preclude the grant of summary judgment in favor of Founders. For the same reasons, we also find no merit in Mr. Goldman’s claim that the defendants’ denial of the allegations in the petition creates a genuine issue of material fact for purposes of Founders’ motion for summary judgment.

Additionally, Mr. Goldman also argues that the trial court’s grant of summary judgment was inappropriate because the cases cited by Founders in support of its motion for summary judgment do not involve patron/employee fights or responde-at superior. This argument, while inaccurate, does not merit consideration in light of the clear language contained within the assault and battery exclusions, which excludes coverage for assaults and/or batteries committed by an “insured” or any “employee” of an insured. Therefore, whether the attack occurred between two patrons or one patron and one employee is of no consequence for purposes of the applicability of the assault and battery exclusions at issue.

Similarly, Mr. Goldman’s claim that the assault and battery exclusions of the Founders policy are somehow inapplicable due to the fact that the managers of Club Eden are named insureds under the policy, is also without merit. The assault and battery exclusions at issue clearly provide that an assault or battery committed by “any insured” is not covered under the policy.

112Insurer’s Duty to Defend

The insurer’s obligation to defend suits against its insured is generally broader than its liability for damage claims. Steptore v. Masco Const. Co., 93-2064 (La.8/18/94), 643 So.2d 1213. This duty to defend is determined by the allegations of the plaintiffs’ petition, with the insurer being obligated to furnish a defense unless the petition unambiguously excludes coverage. Id. Thus, if, assuming all the fact allegations of the petition to be true, there would be both (1) coverage under the policy, and (2) liability to the plaintiffs, the insurer must defend the insured regardless of the outcome of the suit or the eventual determination of actual coverage. Beck, 996 So.2d at 411.

Because we have determined that Mr. Goldman’s allegations, even if true, are excluded from coverage under the assault and battery exclusions, we conclude that Founders has no duty to defend any defendant against the claims asserted in Mr. Goldman’s petition.

CONCLUSION

Because there are no genuine issues of material fact as to whether the Founders policy provides coverage to any defendant herein for any of the claims asserted by Mr. Goldman, or to whether Founders has any obligation under the policy to provide a defense to any defendant herein for any of the claims asserted by Mr. Goldman, we find that the trial court properly granted summary judgment in Founders’ favor. Accordingly, the judgment of the trial court is affirmed.

AFFIRMED


author: STEPHEN J. WINDHORST, Judge.

text:
    Oscar GARZA v. Manuel ARGUETA, ABC Insurance Company, and Imperial Fire and Casualty Insurance Company.
    No. 12-CA-561.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 27, 2013.

      Ivan A. Orihuela, Riguer Silva, L.L.C., Attorneys at Law, Kenner, LA, for Plain-tiffAppellant.
    Byron A. Richie, Paul D. Oberle, Jr., Attorneys at Law, Shreveport, LA, for Defendant/Appellee.
    Panel composed of Judges ROBERT M. MURPHY, STEPHEN J. WINDHORST and HANS J. LILJEBERG.
   STEPHEN J. WINDHORST, Judge.

12This suit arises out of an automobile accident that occurred on June 13, 2010 involving plaintiff, Oscar Garza, and defendant, Manuel Argueta. Mr. Garza filed suit against Mr. Argueta and against his automobile liability insurer, Imperial Fire and Casualty Insurance Company (“Imperial”), and he is seeking uninsured/under-insured motorist coverage (“UM” coverage) for injury and damages sustained in the accident. Imperial filed a motion for summary judgment, alleging no coverage under Mr. Garza’s policy because UM coverage had been validly rejected on October 21, 2009 when the policy was purchased, and again on April 22, 2010 when the policy was renewed. The trial court granted summary judgment in favor of Imperial, dismissing it from the suit. Mr. Garza filed this appeal, alleging error in the trial court’s ruling. For the reasons that follow, we affirm the decision of the trial court.

A motion for summary judgment will be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the | Saffidavits, if any, show that there is no genuine issue as to material fact and that mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B). The summary judgment procedure is favored and is designed to secure the just, speedy, and inexpensive determination of actions. La. C.C.P. art. 966(A)(2). An appellate court asks the same questions the trial court does in determining whether summary judgment is appropriate: whether there is any genuine issue of material fact, and whether the mover is entitled to judgment as a matter of law. Smith v. Our Lady of the Lake Hosp., 93-2512 (La.7/5/94), 639 So.2d 730, 750.

Appellate courts review a judgment granting or denying a motion for summary judgment de novo. Bernard v. Ellis, 11-2377 p. 5 (La.7/2/12), 111 So.3d 995, 2012 WL 2512772.

In this case, the issue is whether the plaintiff effected a valid waiver of UM coverage. Under the UM coverage statute, La. R.S. 22:1295, the requirement of UM coverage is an implied amendment to any automobile liability policy, even when not expressly addressed, as UM coverage will be read into the policy unless validly rejected. Duncan v. U.S.A.A. Ins. Co., 06-363 (La.11/29/06), 950 So.2d 544, 547.

UM coverage embodies a strong public policy. The object of UM coverage is to provide full recovery for automobile accident victims who suffer damages caused by a tortfeasor, who is not covered by adequate liability insurance. Id. UM rejection “shall be made only on a form prescribed by the commissioner of insurance.” La. R.S. 22:1295(l)(a)(ii). This statute provides, in part, that “[a] properly completed and signed form creates a rebuttable presumption that the insured knowingly rejected coverage, se- . lected a lower limit, or selected economic-only coverage.”

Dixon v. Direct General Ins. Co. of Louisiana, 08-0907 (La.App. 1 Cir. 3/27/09), 12 So.3d 357, 360-361, citing Duncan, supra.

In this appeal, Mr. Garza does not contend that the UM waiver form is defective. He attempts to rebut the presumption that he knowingly rejected | coverage by arguing that he was limited in his English and therefore did not understand what he was signing when he signed the form. In support of his argument, he cites Duong v. Salas, 38,613 (La.App. 2 Cir. 6/23/04), 877 So.2d 269.

Imperial argues that the undisputed facts of the Duong case are distinguishable from the presént case. It contends that the facts of this case are similar to those in Pena v. Simeon, 11-1083 (La.App. 5 Cir. 5/22/12), 96 So.2d 547 and Rizzo v. Ward, 09-1325 (La.App. 4 Cir. 2/24/10), 32 So.3d 986.

In Duong, supra, the plaintiffs waiver of UM coverage was found to be invalid where plaintiff spoke no English and he signed 'the waiver of rights form within a short time after moving to the United States from Vietnam.

In Rizzo, supra, the plaintiff alleged that his waiver of UM coverage was invalid because the document was written in English and he did not speak, read, or write English fluently. The court noted that Rizzo was able to converse with the insurance agent in Spanish and that he made no allegations of duress or misconduct on the part of the agent.

In Pena, supra, plaintiff also contended that she had not executed a valid waiver of UM coverage, arguing that Spanish was her native language and that she did not understand the waiver form because it was written in English. Plaintiff further asserted that the agent did not speak to her in Spanish. This court found that plaintiff did not rebut the presumption that she knowingly rejected UM coverage. This court distinguished Duong, supra, stating that Duong spoke no English at all, while plaintiff stated that she did not read or speak English well. The, court also stated that plaintiff did not allege fraud, duress or misconduct on the part of the insurance agent, and she did not tell the agent that she needed any of the forms to be explained to her in Spanish before she would sign them.

|fiIn the case before us, Imperial presented the policy of insurance signed and dated by Mr. Garza on October 10, 2009, in which he stated that he had read the application, and which contains the waiver of UM coverage dated and signed on October 10, 2009, and a second waiver of UM coverage dated and signed April 22, 2010. Mr. Garza executed an affidavit in which'.he averred that his first language was Spanish and that he could not fully read and understand the documents presented to him. Mr. Garza did not allege fraud, duress or misconduct on the part of the insurance agent, and he did not allege that he told the agent he would need the forms explained to him in Spanish before he signed them.

An insured is presumed to know the provisions of his coverage. Davis v. Fortis Benefits Ins. Co., 08-1080 (La.App. 3 Cir. 3/4/09), 6 So.3d 929. In the absence of fraud, duress or misconduct of the insurance agent, an insured is presumed to know and understand what he is signing. Hams v. Safeway Ins. Co., 31,050 (La. App. 2 Cir. 9/23/98), 718 So.2d 619; Rizzo v. Ward, supra.

We find that the plaintiff did not present sufficient evidence to create a genuine issue of material to rebut the presumption that he validly waived UM coverage, and therefore, the trial court did not err in granting Imperial’s motion for summary judgment.

Accordingly, the trial court’s decision granting summary judgment in favor of Imperial Fire and Casualty Insurance Company and dismissing plaintiffs claims against it is affirmed. All costs are assessed against plaintiff/appellant.

AFFIRMED

      . Defendant, Mr. Argueta, is not involved in this appeal.


text:
    Anna Faye Caminita MARCIANTE v. William S. MARCIANTE, Jr.
    No. 12-CA-569.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 27, 2013.
    Shaye R. Lirette, Attorney at Law, Gretna, LA, For Plaintiff/Appellee.
    Steven F. Griffith, Sr., Attorney at Law, Destrehan, LA, For Defendant/Appellant.

      Panel composed of Judges ROBERT M. MURPHY, STEPHEN J. WINDHORST, and HANS J. LILJEBERG.
   ROBERT M. MURPHY, Judge.

| ^Defendant, William S. Marciante, Jr., appeals the judgment granted in favor of his former wife, Anna Faye Caminita Mar-ciante, after a new trial was held on the issues of child support arrearages and contempt, as well as the judgment granting Ms. Marciante’s motion for new trial. Mr. Marciante argues that the trial court erred in considering evidence of his unrelated post-judgment arrest for the purpose of determining Mr. Marciante’s credibility in this action. For the reasons that follow, we reverse the judgment granting Ms. Marciante’s motion for new trial, vacate the judgment rendered after the new trial and reinstate the original judgment of October 26, 2011.

FACTS AND PROCEDURAL HISTORY

On March 28, 2008, Anna Faye Caminita Marciante filed a petition for divorce against William S. Marciante, Jr. On June 17, 2009, Mr. and Mrs. Marciante entered into a consent judgment regarding the custody arrangement and child support obligation for their minor child. Pursuant to the consent judgment, Mr. Marciante agreed to pay Ms. Marciante the sum of $500 per month in child support payments for their son.

|3On April 3, 2008, Mr. and Ms. Marci-ante signed a “Voluntary Act of Partition of Community Property” regarding the settlement and partition of their community property regime. Because Mr. and Ms. Marciante were still married to each other at the time of signing their community property settlement, they sought and received court approval of the settlement agreement on the same date that their consent judgment regarding child custody and support was made a judgment of the court, June 17, 2009. Under the parties’ community property settlement, Ms. Mar-ciante received the former family home. By judgment rendered on August 81, 2009, Ms. Marciante was granted a divorce from Mr. Marciante.

Approximately two years later, Ms. Marciante filed a Rule for Contempt alleging that Mr. Marciante had failed to make any child support payments pursuant to the June 17, 2009 consent judgment. Ms. Marciante also requested an increase in Mr. Marciante’s child support obligation. On September 14, 2011, Mr. Marciante responded by filing a Motion to Reduce his Child Support Obligation because his current wife had recently lost her job and because his salary had decreased. Within the same motion, Mr. Marciante also requested a modification of the parties’ community property settlement to reflect the true intention of the parties. Specifically, Mr. Marciante claimed that the parties intended for Mr. Marciante to receive a credit for child support payments equal to the amount of profit that Ms. Marciante received from the sale of their former community residence. This agreement was not reflected in the provisions of the parties’ original community property settlement.

The matter first came before the court for hearing on September 19, 2011. At the hearing, Mr. Marciante testified that he did not make any child support payments because he and Ms. Marciante entered into an oral agreement wherein he would not pay any child support for their son “[d]ue to the fact that [Ms. |4Marciante] would retain the house and upon sale of the house, [Ms. Marciante] would get all profits from the house.” Mr. Marciante testified that in addition to this offset of his child support obligation, the parties agreed that Ms. Marciante would be allowed to keep a four thousand dollar ($4,000) life insurance policy to be put towards their child’s expenses; to claim their child as a dependent on her tax returns; and that Mr. Marciante would not seek spousal support from Ms. Marciante. Mr. Marciante stated that the parties confected this oral agreement after signing the consent judgment at Ms. Marciante’s attorney’s office in 2008.

When asked why he signed the consent judgment if it did not reflect the parties’ actual agreement regarding child support, Mr. Marciante explained that he signed the judgment because his ex-wife’s lawyer advised that a judge would not sign their divorce settlement without the inclusion of a provision for child support. He testified that he never moved the court to modify the consent judgment to reflect the parties’ oral agreement because Ms. Marci-ante had not altered the terms of their oral agreement prior to the filing of her Rule for Contempt. Ms. Marciante testified that no such oral agreement existed between she and her ex-husband.

In its reasons for judgment, the trial court stated that it found Mr. Marciante to be a credible witness and held that Mr. Marciante had proven the existence of an oral agreement between the parties in accordance with his testimony. Therefore, the court denied Ms. Marciante’s motion for child support arrearages in a judgment dated, October 26, 2011.

On November 2, 2011, Mr. Marciante was arrested for unrelated charges of malfeasance, injury to public records, forgery and payroll fraud. On November 7, 2011, Ms. Marciante filed a motion for a new trial. In her motion, Ms. Marciante alleged that Mr. Marciante’s arrest negatively impacted his credibility as it related to the court’s October 26, 2011 judgment, such that a new trial should be granted Lunder La. C.C.P. article 1972(2), based on newly discovered evidence, and under La. G.C.P. article 1978, based on a showing of good grounds for a new trial. A hearing was held on the motion for new trial on December 5, 2011, wherein Mr. Marciante argued that he is entitled to a presumption of innocence until proven guilty and requested, in the alternative, that the court defer setting any new trial until after his pending criminal case has concluded. At the hearing, the trial court granted Ms. Marciante’s motion for a new trial as to the issues of child support arrearages and contempt.

The new trial was held on April 23, 2012. During the trial, the court took judicial notice of Mr. Marciante’s pending criminal case, specifically noting that Mr. Marciante had been arrested, but had not yet been formally charged. On April 26, 2012, the trial court rendered a judgment in favor of Ms. Marciante and against Mr. Marciante, finding Mr. Marciante liable for past-due child support in the amount of $20,500. In its reasons for judgment, the trial court emphasized that credibility was a main issue in determining the issue of child support arrearages in its October 26, 2011 judgment. Accordingly, the court concluded that the underlying allegations of Mr. Marciante’s criminal charges “strikes at his believability,” and found that Mr. Mar-ciante’s testimony regarding the alleged oral agreement between he and his ex-wife cannot be deemed credible. This appeal followed.

DISCUSSION

In his sole assignment of error, Mr. Marciante argues that the trial court erred by considering evidence of his post-judgment arrest in granting Ms. Marciante’s motion for new trial on December 5, 2011, and therefore, the April 26, 2012 judgment rendered after the new trial cannot stand. Mr. Marciante argues that Louisiana Code of Evidence article 609(F) precludes the court from ^considering evidence of his post-judgment arrest for the purpose of attacking his credibility.

In response, Ms. Marciante argues that the judgment granting the motion for new trial cannot be reviewed on appeal because Mr. Marciante failed to take an “appeal” from that judgment within the appropriate time period. We note that a party cannot file an immediate appeal from a judgment granting a new trial and must seek review by supervisory writ, in order to obtain immediate review of that judgment. While we agree that Mr. Mar-ciante did not file a writ application from the trial court’s December 5, 2011 judgment granting the new trial, his failure to do so does not waive his right to appellate review of that judgment. Rather, “[wjhen an appeal is taken from a final judgment, the appellant is entitled to a review of all adverse interlocutory rulings in addition to review of the final judgment.” E. Solutions, Inc. v. Al-Fouzan, 12-464 (La.App. 3 Cir. 11/7/12); 103 So.3d 1190, 1192, writ denied, 12-2623 (La.1/25/13); 105 So.3d 721. Because Mr. Marciante filed a timely appeal from the final judgment rendered on April 26, 2012, he is entitled to appellate review of the judgment granting Ms. Marciante’s motion for new trial.

We will now address the trial court’s grant of Ms. Marciante’s motion for new trial. The appellate standard of review of the ruling on a motion for new trial is whether the trial court abused its discretion. Woodlands Dev., L.L.C. v. Regions Bank, 11-263 (La.App. 5 Cir. 12/28/11); 83 So.3d 147, 153. Under article 1972(2) of the Louisiana Code of Civil Procedure, a party is entitled to a new trial if the party has discovered, since the trial, evidence that he could not have obtained before trial. La. C.C.P. art.l972(2). Newly discovered evidence under article 1972(2) applies to “evidence which existed at the time of trial, but which was discovered after its conclusion.” Prieur v. Lambert, 534 So.2d 987, 989 (La.App. 175 Cir.1988), writ denied 536 So.2d 1242 (La.1989). As a result, a new trial cannot be granted under article 1972(2) based upon evidence of post-trial changes or activities, “even if those activities contradict trial evidence.” Labruzzo v. Employers Ins. Of Wausau, 521 So.2d 515, 524, writ denied 523 So.2d 1342 (La. 1988).

Louisiana courts have consistently held that a new trial cannot be granted based upon alleged newly discovered evidence, where such evidence did not exist at the time of trial. In Prieur v. Lambert, this Court affirmed the trial court’s refusal to grant the defendant’s motion for new trial based upon alleged newly discovered evidence that did not exist at the time of trial. 534 So.2d at 989. The plaintiff-purchasers filed a redhibition action against the defendant-seller due to flooding in their home. The defendant filed a motion for new trial, alleging that because the incidence of flooding was lessened since the trial due to an improvement in the drainage system, a new trial should be granted based upon this evidence. Because La. C.C.P. article 1972(2) only provides for the grant of a new trial where the newly discovered evidence existed at the time of trial, but was not discovered until after trial, this Court held that the trial court did not abuse its discretion in refusing to grant a new trial. Id.

Similarly, in Hansel v. Holyfield, 00-0062 (La.App. 4 Cir. 12/27/00); 779 So.2d 939, unit denied 01-0276 (La.4/12/01); 789 So.2d 591, the Fourth Circuit affirmed the trial court’s refusal to grant the defendant’s motion for new trial, seeking reevaluation of stock and stock options due to a decrease in stock value that occurred after the parties’ divorce trial. Because the decreased stock value was a later development that did not exist at the time of trial, the court determined that it did not qualify as new evidence under La. C.C.P. article 1972(2). Id. at 944.

IsHere, the trial was held on September 19, 2011. The trial court took the matter under advisement and rendered a judgment in favor of Mr. Marciante on the issues of child support arrearages and contempt on October 26, 2011. On November 2, 2011, Mr. Marciante was arrested. Ms. Marciante subsequently filed a motion for new trial under articles 1972(2) and 1973 of the Louisiana Code of Civil Procedure, seeking re-evaluation of Mr. Marciante’s credibility based upon his post-trial arrest.

Because Mr. Marciante’s arrest did not exist or occur at the time of the trial, we find that it does not qualify as new evidence under La. C.C.P. article 1972(2), and therefore, it cannot be used as a basis for granting a new trial. During the hearing on the motion for a new trial, the trial court stated that Mr. Marciante’s arrest cast doubt on his credibility and on the court’s October 26, 2011 judgment. However, a new trial cannot be granted based upon post-trial developments, even if those developments contradict trial evidence. Therefore, we find that the trial court abused its discretion in granting a new trial under La. C.C.P. article 1972(2) based upon evidence of Mr. Marciante’s post-trial arrest.

Additionally, we find that the trial court’s grant of Ms. Marciante’s motion for new trial under La. C.C.P. article 1973 was also an abuse of the court’s discretion. Article 1973 provides that “[a] new trial may be granted in any case if there is good ground therefor, except as otherwise provided by law.” La. C.C.P. art.1973. Under article 609(F) of the Louisiana Code of Evidence, “[e]vidence of the arrest, indictment or prosecution of a witness is not admissible for the purpose of attacking his credibility.” Because evidence of Mr. Marciante’s arrest is not admissible for the purpose of attacking his credibility, this evidence does not constitute “good grounds” for granting a new trial, even if Mr. Marciante’s arrest had occurred prior to the trial. Therefore, we find that the trial court abused its | ¡[discretion by using this evidence as a basis for granting the motion for new trial under La. C.C.P. article 1973.

Accordingly, we reverse the trial court’s judgment granting Ms. Marciante’s motion for new trial. Because we have determined that the trial court erred in granting the motion for a new trial, we must vacate the April 26, 2012 judgment rendered pursuant to the new trial, and reinstate the trial court’s original judgment rendered on October 26, 2011.

Appellee’s Request for Sanctions

Ms. Marciante seeks sanctions against Mr. Marciante under La. C.C.P. art. 863. After considering the arguments of counsel, Ms. Marciante’s request for sanctions is denied.

CONCLUSION

Accordingly, for the reasons stated herein, the December 5, 2011 judgment granting Ms. Marciante’s motion for new trial is reversed, and thus, the April 26, 2012 judgment rendered after the new trial is vacated, and the October 26, 2011 judgment is reinstated. Ms. Marciante’s request for sanctions is denied.

REVERSED