author: SAUNDERS, Judge.

text:
    Elliot A. MISTICH, Jr., et al. v. Diedra R. WEEKS, et al. Judith Langlinais Mistich, et al. v. Louisiana Farm Bureau Casualty Ins. Co., et al.
    Nos. CA 12-150, CA 12-151.
    Court of Appeal of Louisiana, Third Circuit.
    July 13, 2012.

      Walter Kay Jamison, III, Frederick Douglas Gatz, Jr., Bryan E. Lege, Kraft Gatz, L.L.C., Lafayette, LA, for Defendants/Appellees, U.S. Agencies Casualty Ins. Co., Diedra R. Weeks.
    William E. Wright, Jr., Beverly A. De-Laune, Ashley E. Gilbert, Deutsch, Kerri-gan & Stiles, New Orleans, LA, for Defendants/Appellees, Christine Laporte, Eric Robiehaux, CAN Insurance Company.
    George Pivach II, Mark A. Pivach, Ellen Pivach Dunbar, Pivach, Pivach, Hufft, Belle Chasse, LA, for Plaintiffs/Appellants, Elliot A. Mistich, Jr., Jamie Mistich Ber-geron.
    Charles R. Sonnier, Abbeville, LA, for Appellant, Judith Langlinais Mistich.
    Edward 0. Taulbee, IV, Max Michael Menard, Katherine P. Martin, Taulbee & Associates, Lafayette, LA, for Defendants/Appellees, Louisiana Farm Bureau Casualty Ins. Co., Louisiana Farm Bureau Mutual Ins. Co.
    Gretchen Heider Mayard, Martin Ma-yard, LLC, Lafayette, LA, for Defendant Appellee, State Farm Mutual Automobile Ins. Co. (as insurer).
    Court composed of JOHN D. SAUNDERS, BILLY HOWARD EZELL, and PHYLLIS M. KEATY, Judges.
   SAUNDERS, Judge.

| t This insurance coverage dispute arose from an accident wherein the driver of a car owned by his wife’s corporation died as a result of a collision. An ambiguity in a policy exclusion is at issue, and the trial court granted summary judgment denying coverage. The Plaintiffs/Appellants appeal this judgment. Since the ambiguity can be reasonably interpreted in favor of coverage, we reverse the decision of the trial court and remand for proceedings consistent herewith.

FACTS AND PROCEDURAL HISTORY

Elliot Mistich, Sr. and his wife, Judy, purchased a “Comprehensive Automobile Policy” from Louisiana Farm Bureau Casualty Insurance Co. (hereinafter “Farm Bureau”) which provides protection against uninsured motorists with limits of $300,000.00 per person and $500,000.00 per accident. The “Comprehensive Automobile Policy” (hereinafter “comprehensive policy”) does not list specific automobiles on the declarations page, nor does that page allot space to do so. The declarations page specifically references “UM HIRED/NON-OWNED,” indicating that the policy covers uninsured or underin-sured motorists, hired vehicles, and non-owned vehicles. Additionally, to ensure full coverage, the Mistiches purchased a “Commercial Umbrella Policy” (hereinafter “umbrella policy”) from Farm Bureau which provided supplementary coverage in the amount of $1,000,000.00.

At the time the policies were issued, the Mistiches had possession of three automobiles: a 2002 BMW 580 owned by Tobias, Incorporated (hereinafter “Tobias, Inc.”), a company Judy owns and works for; a Ford 250 truck, owned by Elliot’s employer, Jade Marine; and an antique 1968 Cadillac, owned by Elliot. The BMW was insured by a policy issued by Gemini Insurance Company and 12purchased by To-bias, Inc. That policy, however, excluded underinsured or uninsured motorist coverage for the BMW.

The accident which gave rise to this matter occurred on May 2, 2004, when Elliot was driving Judy’s BMW westbound on Louisiana Highway 92, with Judy, two of their grandchildren, and Judy’s mother as passengers. Deidra Weeks, Defendant (hereinafter “Weeks”) was driving a 1999 Honda Accord eastbound down the highway. Weeks’s car crossed the center line of the highway and collided with the BMW driven by Elliot. Elliot was declared dead at the scene, while Judy and the remaining passengers survived, with injuries.

Plaintiffs/Appellants are Elliot A. Mis-tieh, Jr. and Jamie Mistich Bergeron (hereinafter “Mistich”), the surviving children of Elliot Mistich, Sr. Mistich filed suit against Weeks and Farm Bureau, seeking insurance coverage and damages resulting from Weeks’s negligence. Weeks has Louisiana’s minimum allowed automobile liability insurance coverage, $10,000.00.

Farm Bureau filed a Motion for Summary Judgment on January 18, 2007, asserting that the policies at issue do not provide coverage for the claimed losses. In that motion, Farm Bureau argues that the policies exclude coverage due to a certain clause, referred to as “exclusion (b).” Exclusion (b) reads as follows: “THIS POLICY DOES NOT APPLY: ... (b) under any of the coverages for automobiles owned or furnished for regular use of any member of the insureds [sic] household, unless shown on the declaration ...” (emphasis added). According to Farm Bureau, the clause excludes coverage for the BMW driven by Elliot at the time of the accident, because the BMW was not listed on the declaration page.

In opposition, Mistich argues, inter alia, that the language of exclusion (b) is ambiguous, because it is unclear whether the phrase “unless shown on the declaration” refers to “automobiles” or “members of the insureds [sic] household.” |sMistich points out further that the declaration page in the policy lists no automobiles nor does it allot spaces or lines for which to do so. In sum, Mistich argued that exclusion (b) was not applicable, or at best ambiguous.

The trial court granted summary judgment in favor of Farm Bureau on October 29, 2007, denying coverage based on exclusion (b) of the primary policy. This court reversed and remanded on other grounds on November 4, 2009, noting that Mistich’s argument regarding exclusion (b)’s ambiguity was compelling. On August 3, 2011, Farm Bureau re-asserted its previously filed Motion for Summary Judgment. Thereafter, on August 31, 2011, Mistich filed a Motion for Partial Summary Judgment as to the ambiguity of exclusion (b). Judy Mistich, Elliot Mistich, Sr.’s surviving spouse, had filed a separate suit as a result of the accident. She joined in this motion, and her case was consolidated with the suit brought by Elliot Mistich, Jr. and Jamie Mistich Bergeron. We consolidate the Plaintiffs’ assignments of error in this opinion (hereinafter all Plaintiffs referred to as “Mistich,” unless it is necessary to specifically mention one of them). The trial court heard oral arguments on September 15, 2011. Ruling from the bench, the trial court granted summary judgment in favor of Farm Bureau and denied Mis-tich’s Motion for Partial Summary Judgment, thereby denying coverage. It is from this judgment that Mistich appeals.

ASSIGNMENTS OF ERROR

1. The District Court erred in finding that “exclusion (b)” of the general exclusions of the Louisiana Farm Bureau Casualty Insurance Company Comprehensive Automobile Policy is unambiguous, and[,] therefore, excludes coverage of Plaintiffs[’]/Appellants’ claimed losses.
2. The District Court erred by granting Farm Bureau’s Motion for Summary Judgment for Failure to Procure Claims.

|4LAW AND ANALYSIS

Assignment of Error Number One

Mistich argues that the trial court erred in granting Farm Bureau’s Motion for Summary Judgment, finding that exclusion (b) excluded coverage of the claimed losses. Mistich maintains that there is an ambiguity in the exclusion clause which should be resolved in favor of coverage. We find merit in this contention.

The following principles govern the standard of review and burdens of proof for a review of summary judgments:

Summary judgments are subject to a de novo review. Thibodeaux v. Lafayette Gen. Surgical Hosp., 09-1523 (La.App. 3 Cir. 5/5/10), 38 So.3d 544. “The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action, except those disallowed by [La. Code Civ.P. art.] 969. The procedure is favored and shall be construed to accomplish these ends.” La.Code Civ.P. art. 966(A)(2). A motion for summary judgment “shall be rendered forthwith 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.” La. Code Civ.P. art. 966(B).
It is also important to be aware of the movant’s and not-movant’s burdens of proof. Though the burden of proof on a motion for summary judgment remains on the movant, the movant’s burden changes contingent upon whether he or she will bear the burden of proof at trial on the matter that is the subject of the motion for summary judgment. Johnson v. State Farm, Ins., 08-1250 (La.App. 3 Cir. 4/1/09), 8 So.3d 808.

Davis v. Country Living Mobile Homes, Inc., 11-471, pp. 2-3 (La.App. 3 Cir. 10/19/11), 76 So.3d 1248, 1249-50.

Louisiana Code of Civil Procedure Article 966(C)(2) states in pertinent part:

The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s |Bburden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.

In the insurance policy context, trial courts are limited in their granting of summary judgments, and ambiguities should be interpreted in favor of the insured:

When words and phrases contained in an insurance contract are ambiguous, they are to be construed reasonably in the sense that is most favorable to the insured or the person claiming coverage. Smith [v. Girley, 260 La. 223, 255 So.2d 748 (La.1971) ]; Hendricks [v. American Employers Ins. Co., 176 So.2d 827 (La.App. 2 Cir.1965) ]; Credeur v. Luke, 368 So.2d 1030 (La.1979)[;] and Rodriguez v. Northwestern National Ins. Co., 358 So.2d 1237 (La.1978). Because of this, summary judgment may not be rendered declaring lack of coverage 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. La. C[ode Civ. P.] art. 966.

Westerfield v. LaFleur, 493 So.2d 600, 605 (La.1986) (emphasis added).

“The determination of whether a contract is clear or ambiguous is a question of law.” Cadwallader v. Allstate Ins. Co., 02-1637, p. 4 (La.6/27/03), 848 So.2d 577, 580.

The insurer has the burden to prove policy exclusions: “Policy ambiguities are construed in favor of coverage. Policy exclusions must be clearly stated. Any ambiguity in an insurance policy’s exclusions is construed to afford coverage. The insurer has the burden of proving that a loss comes within a policy exclusion.” La. Maint. Servs, Inc. v. Certain Underwriters at Lloyd’s of London, 616 So.2d 1250, 1252 (La.1993) (citations omitted) (emphasis added). Insurance policies are contracts of adhesion, and the insurer has the duty to unequivocally specify exclusions to its obligations. Cooling v. U.S. Fid. & Guar. Co., 269 So.2d 294 (La.App. 3 Cir.1972), writ refused, 272 So.2d 373 (La.1973).

|6“If the language of the exclusion is subject to two or more reasonable interpretations, the interpretation which favors coverage must be applied.” Holland v. Golden Rule Ins. Co., 96-264, pp. 4-5 (La.App. 3 Cir. 10/9/96), 688 So.2d 1186, 1189 (emphasis added) (citation omitted).

The nature of an insurance policy is as follows: “An insurance policy is a conventional obligation that constitutes the law between the insured and insurer, and the agreement governs the nature of their relationship. La.Civ.Code art. 1983.” Peterson v. Schimek, 98-1712, p. 4 (La.3/2/99), 729 So.2d 1024, 1028. “Words in an insurance contract are to be given their generally prevailing and ordinary meaning, unless they have acquired a technical meaning. La.Civ.Code art. 2047; Schroeder v. Board of Supervisors of La. State Univ., 591 So.2d 342, 345 (La.1991).” Peterson, 729 So.2d at 1028-29. “An insurance contract is construed as a whole and each provision in the policy must be interpreted in light of the other provisions so that each is given meaning. One portion of the policy should not be construed separately at the expense of disregarding other provisions. La.Civ.Code art. 2050; Central La. Elec. Co. [v. Westinghouse Elec. Corp., 579 So.2d 981, 985 (La.1991) ].” Peterson, 729 So.2d at 1029.

In the case sub judice, Mistich asserts that exclusion (b) can be reasonably interpreted to mean either: that a specific member of the household must be listed on the declaration page in order to qualify for coverage; or that automobiles owned or furnished for regular use must be listed on the declaration page to qualify for coverage. In support of this argument, Mistich points out that both Elliot and Judy Mis-tich are listed on the declaration page, that no vehicles at all are listed on the declaration page, and that there is no allotted space to list automobiles on the page.

On the other hand, Farm Bureau argues that the primary, comprehensive policy was issued at a low premium to provide a “small sliver” of coverage that the |7Mistichs needed to procure the umbrella policy. Since the umbrella policy was issued to Elliot and Judy Mistich, Farm Bureau argues, then coverage should not extend to vehicles owned by the couple’s employers, Jade Marine and Tobias, Inc., respectively. Furthermore, Farm Bureau provides an explanation as to why no vehicles are listed on the declaration page and why there is no space on which to so do. In its brief, Farm Bureau states that the comprehensive policy was meant to insure a small risk of non-owned and hired vehicles, which was not intended to include Judy’s BMW, since it was insured by a separate insurance company. To aid its argument, Farm Bureau cites to the testimonies of insurance agents who spoke with Elliot and Judy during the negotiation of the policies, the testimony of Judy, and to the price of the premium for the comprehensive policy. Essentially, Farm Bureau argues that it was the intention of all parties involved to exclude UM coverage for the BMW.

We agree with Mistich that there are two reasonable interpretations of exclusion (b): that the policy does not apply to vehicles owned or furnished for regular use, unless the specific member of the insured’s household is listed on the declaration page; or that the policy does not apply to vehicles owned or furnished for regular use, as to any member of the insured’s household, unless the specific vehicle is listed on the declaration page. The ambiguity results from a misplaced modifier phrase, “unless shown on the declaration,” which could reasonably be there to modify either “automobiles” or “member.”

Farm Bureau urges extrinsic and parol evidence in support of its argument against coverage. According to Farm Bureau, this evidence should be available to ascertain the intent of the parties and to resolve the ambiguity before us. Conversely, Mistich refers us to the principle that the drafter of an insurance policy should not be permitted to vary the terms using extrinsic evidence, since coverage,_J¿especially exclusions, should be well-defined. See Cooling, 269 So.2d 294; Holland, 688 So.2d 1186; La. Maint. Servs, Inc., 616 So.2d 1250; Peterson, 729 So.2d 1024. In addition, “if the language of the exclusion is subject to two or more reasonable interpretations, the interpretation which favors coverage must be applied.” Holland, 688 So.2d at 1189.

We conclude that extrinsic evidence should not be admissible to vary the terms of the contract. We further conclude that exclusion (b) can be reasonably interpreted to mean that members of the insured household would not benefit from coverage unless they were listed on the declaration page. Elliot Mistich, Sr. was listed on that page; therefore, the policy should be read to include coverage of the underlying accident. Accordingly, we reverse the decision of the trial court granting Farm Bureau summary judgment and rule in favor of coverage.

Under this assignment of error, Mistich also appeals the trial court’s denial of their own Motion for Summary Judgment. Mis-tich sought partial summary judgment on whether Farm Bureau’s policy, specifically, exclusion (b), is ambiguous. In its motion, Mistich pointed out the exclusion’s clause “unless shown on the declaration,” could reasonably refer to “member” or “automobiles.” We agree with Mistich that exclusion (b) is ambiguous and that it should be construed in favor of coverage. For the reasons discussed above, we reverse the trial court’s denial of Mistich’s Partial Motion for Summary Judgment. We rule in favor of Mistich, insofar as coverage is found in their favor. Accordingly, we reverse the decision of the trial court and remand for proceedings consistent herewith.

Assignment of Error Number Two

In the second assignment of error, Judy Mistich states that the trial court erred by granting Farm Bureau’s Motion for Summary Judgment for Failure to |9Procure Claims. Judy contends that had she known at the time that Farm Bureau would deny the very UM coverage that she sought, she would have sought UM coverage elsewhere. We find this issue moot, however, due to our decision to reverse the trial court’s summary judgments denying coverage. Therefore, this issue is preter-mitted.

CONCLUSION

We reverse the decision of the trial court to grant Farm Bureau, Inc.’s Motion for Summary Judgment to deny coverage, because the policy exclusion’s ambiguity can be reasonably interpreted in favor of Mistich, the insured. We also reverse the decision of the trial court denying Mis-tich’s Motion for Partial Summary Judgment and rule in favor of coverage. We remand for proceedings consistent with this opinion. All costs are assessed to defendant Louisiana Farm Bureau Casualty Insurance Co.

REVERSED AND REMANDED.


source: Caselaw Access Project

author: DANIEL L. DYSART, Judge.

license: Public Domain

text:
    James S. ALDERDICE v. BOARD OF SUPERVISORS OF LOUISIANA STATE UNIVERSITY AND AGRICULTURAL AND MECHANICAL COLLEGE, the City of New Orleans, Allen Bickham, Octavia Bickham and Tesha Bickham Lewis, et al.
    No. 2012-CA-0148.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 25, 2012.

      Robert E. Tarcza, Tarcza & Associates, L.L.C., New Orleans, LA, for PlaintiffyAp-pellant.
    Thomas J. Capella, Christian Rhodes, J. Kenton Parsons, Luke F. Piontek, Christina B. Peck, Gayle Thomasson Keller, Shelley Ann McGlathery, Roedel Parsons Koch Blache Balhoff & McCollister, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge ROLAND L. BELSOME, Judge DANIEL L. DYSART, Judge ROSEMARY LEDET).
   DANIEL L. DYSART, Judge.

| plaintiff-appellant, James S. Alderdice (“Alderdice”), appeals a judgment granting Peremptory Exceptions of No Cause and No Right of Action filed by defendant-appellee, Board of Supervisors of Louisiana State University and Agricultural and Mechanical College (“Board”). For the reasons that follow, we affirm.

FACTUAL BACKGROUND

The underlying facts of this lawsuit are not in serious dispute, although we must rely on the assertions of the parties with respect to many of the events in this lawsuit as the record contains no documents supporting the chronology of events. Al-derdice submits (and the Board does not dispute) that on August 20,1997, Alderdice sold property located at 2327 Palmyra St., New Orleans, Louisiana (“the Property”), to Thelma Bickham, pursuant to a credit sale, which was timely recorded in the public records. After Ms. Bickham’s death in 2007, her heirs were placed in possession of the property and assumed the notes on the property. According to Alderdice, the Bickham heirs made no payments on the note after |?“late 2008” and Alderdice filed suit against the Bickham heirs for the defaulted note.

According to both parties, on August 13, 2010, the Board filed a Petition for Expropriation and Notice of Lis Pendens, which is pending in Civil District Court for the Parish of Orleans. Apparently, and as was reported during one of the hearings giving rise to this appeal, Alderdice has intervened in the Board’s expropriation suit. The record contains no information regarding the status of the expropriation proceedings.

In the expropriation suit, the Board reportedly obtained a judgment dated August 27, 2010, by which title to the Property was transferred to it and the Board deposited $6,655.00 into the registry of the court, the amount which the Board submits was “just compensation ... for the taking of the subject property as determined by the Board’s independent appraisers.” This sum reportedly sits in the registry of the court. The judgment also apparently provided that the Bickham heirs were to satisfy “any and all liens, mortgages and encumbrances” on the Property, specifically listing the credit sale between Alderdice and Thelma Bickham.

The record does not demonstrate the date on which Alderdice learned of the expropriation and he submits that he became aware of it only after checking on the property and discovering that it had been demolished. Alderdice then instituted the instant action on February 26, 2011, by way of a Petition to Annul Judgment | s(“ original Petition”), in which he named the Board and the Bickham heirs as defendants. In his original Petition, Alderdice alleged that he was never notified of the expropriation proceedings, to which he claims to have been an indispensable party, and he sought to have the August 27, 2010 judgment annulled and set aside.

In response to the original Petition, the Board filed Peremptory Exceptions of No Cause and No Right of Action, which were heard and orally granted by the trial court on October 7, 2011. Shortly before the hearing, Alderdice amended his Petition to allege that the Board had a duty to notify him of the expropriation proceedings and of the Property’s demolition, the lack of which “stripped [him] of his constitutionally protected property rights.” The amended petition sought, in the alternative, damages resulting from the Board’s “negligent failure to notice [him] before demolishing the Property.” The Board replied its Peremptory Exceptions, and after a hearing on October 21, 2011, the trial court rendered judgment in favor of the board, granting its exceptions by written judgment dated November 18, 2011.

This appeal followed.

STANDARD OF REVIEW

The majority of the arguments made by both parties to this appeal concern whether Alderdice should have been given notice of the expropriation proceeding and whether La. R.S. 19:141, et seq., is constitutional. Neither party addressed the issue of whether Alderdice has a cause or right of action in this proceeding. As the trial court’s judgment simply grants the Board’s exceptions and no reasons for judgment were issued, we focus on the propriety of the trial court’s grant of the Board’s exceptions of no cause and no right of action.

14This Court recently reiterated that an exception of no cause of action raises the question of whether the law affords any remedy to the plaintiff under the allegations of the petition, while the exception of no right of action raises the issue of whether the plaintiff belongs to the particular class to which the law grants a remedy for the particular harm alleged by the plaintiff. Breeden v. Crumes, 2011-1098, pp. 8-9 (La.App. 4 Cir. 4/4/12), 102 So.3d 133, 137, citing Wingfield v. State, Department of Transportation and Development, 97-1567 (La.App. 1 Cir. 6/29/98), 716 So.2d 164, 166. Both the exception of no cause of action and the exception of no right of action present questions of law and the standard of review of the trial court’s action is a de novo review. Homot v. Cardenas, 2006-1341, p. 12 (La.App. 4 Cir. 10/3/07) 968 So.2d 789, 798.

STATUTORY BACKGROUND

The Louisiana Constitution provides that “[e]very person has the right to acquire [and] own ... private property.” LSA-Const. Art. 1, § 4(A). This right is subject to the caveat that private property can be taken “for public purposes and with just compensation paid to the owner or into court for his benefit” (emphasis added). LSA-Const. Art. 1 § 4(B)(1). Indeed, “[pjroperty needed for a public purpose has always been a limitation on private property rights recognized by Article I, § 4. [As such,] [t]he state may take private property for a public purpose.” State v. Clark, 94-598, p. 9 (La.App. 3 Cir. 2/21/96), 670 So.2d 493, 499.

Our constitution also provides that, “[i]n every expropriation or action to take property pursuant to the provisions of this Section, a party has the right to trial by jury to determine whether the compensation is just, and the owner shall be compensated to the full extent of his loss.” LSA-Const. Art. 1 § 4(B)(5). (emphasis added). This Court recognized that “[t]he Louisiana Constitution, Article I, |,-'Section 4 provides for compensation to a landowner whose property rights are taken or damaged.” City of New Orleans v. Badine Land Ltd., 2007-1066, 2007-1067, 2007-1068, p. 4 (La.App. 4 Cir. 5/21/08), 985 So.2d 832, 835. (emphasis added). As is expressly provided by these provisions, it is clear that they are designed to protect owners of property.

The underlying expropriation proceedings were commenced by the Board under one of the “quick taking” expropriation statutes, La. R.S. 19:141, et seq., which allow several public entities, including the Board, to “acquire ... property prior to judgment in the trial court.” La. R.S. 19:141. Pursuant to the ensuing articles, in order for a public entity to expropriate property, it is to file a petition, to which certain documents must be attached, including a statement as to the amount of compensation “estimated to be just and adequate compensation for the taking”, which is to be made by at least two persons, one of which must be “a licensed realtor who is familiar with land values in the vicinity of the property to be taken.” La. R.S. 19:142, La. R.S. 19:148, respectively.

La. R.S. 19:144 mandates that, upon proper presentation of the petition and attachments, “the court shall issue an order directing that the amount of the estimate be deposited in the registry of the court and declaring that the property described in the petition has been taken for public purposes at the time of the deposit.” Once the deposit has been made, the title to the property is transferred to the public entity which filed the expropriation proceeding and “the right to just and adequate compensation therefor shall vest in the persons entitled thereto.” La. R.S. 19:145. At the time that the deposit is made, title to the property vests in the expropriating party. La. R.S. 19:145. The clerk of court is then to send “notice to | fieach defendant in the suit ... that the property described in the petition has been expropriated for public purposes.” La. R.S. 19:146.

When “an entire lot” is expropriated, “any defendant may apply for a trial to determine the market value of the property expropriated” provided that certain conditions are met, including that the defendant answer the suit within 30 days of service of the notice and specify the amount claimed. La. R.S. 19:150. As was noted by the Fifth Circuit, in State, Through Dept. of Highways v. Luling Indus. Park, Inc., 443 So.2d 672, 674 (La.App. 5th Cir.1983), “[t]he right to demand a fair market value and severance damages in an expropriation suit remains with the owner of the property at the time of the taking.”

This statutory scheme clearly contemplates the expropriation of property without advance notice to any party; hence, the “quick taking” nature of this type of expropriation.

DISCUSSION:

Under La. C.C. Pr. art. 2002, a final judgment may be annulled under three circumstances. Those limited circumstances include judgments rendered:

(1) Against an incompetent person not represented as required by law.
(2) Against a defendant who has not been served with process as required by law and who has not waived objection to jurisdiction, or against whom a valid judgment by default has not been taken.
(3) By a court which does not have jurisdiction over the subject matter of the suit.

La. C.C. Pr. art. 2002.

17Alderdice does not allege any ground for which the judgment of expropriation could be annulled under La. C.C.P. art. 2002. On this basis, alone, Alderdice has failed to state a cause of action for a nullity of judgment.

Even if this Court were to hold that the Petition, as amended, technically states a cause of action for damages, in a light most favorable to the plaintiff and with every doubt resolved in plaintiffs behalf, pursuant to NOLA 180 v. Harrah’s Operating Co., Inc., 2012-0072, p. 2 (La.App. 4 Cir. 5/16/12), 94 So.3d 886, 887, we find that Alderdice has no right of action in this proceeding.

An exception of no right of action determines whether a plaintiff belongs to the class of persons to whom the law grants the cause of action asserted in the petition and whether the particular plaintiff has a real and actual interest in the subject matter of the litigation. Louisiana Paddlewheels v. Louisiana Riverboat Gaming Comm’n, 94-2015, pp. 4-5 (La.11/30/94), 646 So.2d 885, 888, citing Babineaux v. Pernie-Bailey Drilling Co., 261 La. 1080, 262 So.2d 328 (1972).

Our jurisprudence indicates that the only indispensable party to an expropriation proceeding is the landowner. In the context of expropriation proceedings for blighted property, this Court indicated that, “[gjiven the in rem nature of expropriation proceedings, which are proceedings against the property itself, the only indispensable party who must be joined as a defendant is the owner of the property.” New Orleans Redevelopment Authority v. Lucas, 2002-2344, p. 16 (La.App. 4 Cir. 8/25/04), 881 So.2d 1246, 1255, citing United Gas Pipe Line Co. v. New Orleans Terminal Co., 156 So.2d 297, 300 (La.App. 4 Cir.1963). The Louisiana Supreme Court, too, has confirmed this principle. In construing similar quick taking expropriation provisions relating to the Department of Transportation Rand Development, the court stated that “it is clear that under the expropriation statutes the Department’s suit must be filed against the proper party (the property owner), and the deposit made for his benefit.” State, Through Dept. of Transp. and Development v. Estate of Davis, 572 So.2d 39, 42 (La.1990). (emphasis added).

Alderdice’s suit seeks to set aside the judgment of expropriation, or in the alternative, for damages owed for the Board’s failure to notify him of the expropriation and/or the demolition of the structure on the Property. Importantly, Alderdice does not allege in either the original or amending petition that he is the owner of the Property in this matter. Rather, he alleges that he “had in effect a Credit Sale of the Property.” As we have concluded that a property owner is the proper party against whom an expropriation proceeding may be instituted, it follows that Alderdice, who admittedly is not the property owner, has no right of action to set aside the judgment of expropriation. Similarly, as the only party to whom compensation is owed in an expropriation proceeding is the property owner, Alderdice has no right of action for damages against the Board.

In light of the foregoing conclusion that Alderdice has no right of action in this matter, we need not address his other arguments. We note, however, that Al-derdice’s allegation that the quick-taking expropriation statute, La. R.S. 19:141 et seq., is unconstitutional is not properly before this Court. In neither the original nor the amending Petitions does Alderdice specifically raise the issue of the statute’s constitutionality. Nor is this issue specifically raised by any motion Alderdice filed. While Alderdice has generally argued that the Board violated his due process rights by not being provided notice of the expropriation proceedings in |flopposition to the Board’s exceptions, the first specific reference to the constitutionality of the quick taking statutes was made in his appellate brief.

We further note that, while the Louisiana Supreme Court declared La. R.S. 19:141, et seq., to be unconstitutional in State, Through Sabine River Authority v. Phares, 245 La. 534, 159 So.2d 144 (1963), that case was decided under the pre-1974 revisions to the Louisiana Constitution. At that time, Article I, Section 2 of the Constitution provided:

No person shall be deprived of life, liberty or property, except by due process of law. Except as otherwise provided in this Constitution, private property shall not be taken or damaged except for public purposes and after just and adequate compensation is paid, (emphasis added).

Article 1, Section 2 now provides simply that “[n]o person shall be deprived of life, liberty, or property, except by due process of law.” Article 1, Section 4 now states that “[pjroperty shall not be taken or damaged by the state or its political subdivisions except for public purposes and with just compensation paid to the owner or into court for his benefit.” No longer is there a requirement that “just and adequate compensation” be paid before a taking is permitted. Accordingly, with the 1974 constitutional amendments, the Phares decision no longer applies.

Furthermore, under the Louisiana Supreme Court decision in State, Through Dept. of Highways v. Olinkraft, Inc., 350 So.2d 865 (La.1977), it is clear that La. R.S. 19:141, et seq. is constitutional. In Olinkraft, the Supreme Court considered the quick taking expropriation statutes applicable to the Department of Highways, La. R.S. 48:441, et seq. For purposes of this discussion, those statutes are not materially different than those applicable to the Board and allow for the | ^expropriation of private property “prior to judgment in the trial court” and without any prior notice to any party, including the property owner. The Olinkraft court concluded:

Considered in the light of the public interest in expediting the construction of highways, the protections against abuse afforded the owner of private property by the quick taking statutes, and the presumption of constitutionality attached to Legislative enactments, these are reasonable statutory implementations of the constitutional authority to expropriate private property and the procedure prescribed does not deny due process.

Id. at 868.

Under the rationale of the Olinkraft decision, it appears readily apparent that the quick taking statutes under which the Board expropriated the Property are likewise constitutional.

CONCLUSION

Based on our de novo review of the record, we find no error in the trial court’s grant of the Board’s Exception of No Cause of Action and No Right of Action are affirmed.

AFFIRMED.

      . The suit on the note, as reported by Alderd-ice, bears docket number 2011-4465 and is currently pending in Civil District Court for Orleans Parish. We note that this suit bears a higher number than the instant matter and as such, was obviously filed after the current suit which was filed on February 2, 2011. Thus, it appears that Alderdice waited more than 2 years to file suit on the defaulted note and did so only after the Property was expropriated.

      . Again, the record contains no copies of any of the records from the expropriation suit, including the judgment by which the Board obtained title to the property, and we must rely on the parties as to these facts.

      . The record does not reflect whether the Bickham heirs exercised their right to challenge the market value of the expropriated property.

      . See: e.g. City of New Orleans v. Badine Land Ltd., supra.