source: Caselaw Access Project

license: Public Domain

text:
    In re Gary E. HARVEY.
    No. 2009-OB-2231.
    Supreme Court of Louisiana.
    Oct. 20, 2009.
   ORDER

Considering the Joint Petition for Transfer to Disability Inactive Status,

IT IS ORDERED that Gary E. Harvey, Louisiana Bar Roll number 24005, be and he hereby is transferred to disability inactive status. All disciplinary proceedings against respondent shall be deferred until such time as he resumes active status.

Pursuant to Supreme Court Rule XIX, § 26(E), this order shall be effective immediately.

/s/ Catherine D. Kimball

Justice, Supreme Court of Louisiana


text:
    In re Michael R. BARK.
    No. 2009-B-2300.
    Supreme Court of Louisiana.
    Oct. 22, 2009.
   ORDER

Considering the Petition for Interim Suspension for Threat of Harm filed by the Office of Disciplinary Counsel,

IT IS ORDERED that respondent, Michael R. Bark, Louisiana Bar Roll number 24014, be and he hereby is suspended from the practice of law on an interim basis pursuant to Supreme Court Rule XIX, § 19.2, pending further orders of this court.

IT IS FURTHER ORDERED that the Office of Disciplinary Counsel may seek the appointment of a trustee(s) to protect the interests of respondent’s clients pursuant to the provisions of Supreme Court Rule XIX, § 27, if appropriate.

Pursuant to Supreme Court Rule XIX, § 26(E), this order is effective immediately-

/s/ John L. Weimer

Justice, Supreme Court of Louisiana


author: PER CURIAM.

text:
    In re S. Judd TOOKE.
    No. 2009-B-1784.
    Supreme Court of Louisiana.
    Nov. 20, 2009.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, S. Judd Tooke, an attorney licensed to practice law in Louisiana but currently on interim suspension. In re: Tooke, 05-2489 (La.12/16/05), 916 So.2d 1027.

FORMAL CHARGES

Count I — The Ily Matter

In October 2003, David Ily hired respondent to initiate injunctive relief proceedings in an effort to prevent Mr. fly’s former landlord from disposing of or selling his work equipment and tools, which were valued at approximately $20,000. Respondent failed to communicate with Mr. Ily and failed to initiate the proceedings for an extended period of time; as a result, the equipment and tools were disposed of. Thereafter, Mr. fly was unable to earn a living, and foreclosure proceedings were initiated against his personal residence.

Respondent’s paralegal advised Mr. Ily that the injunction proceedings had been initiated when, in fact, the initial petition had not been filed. Respondent’s paralegal also agreed to contact Mr. fly’s mortgage company to provide information |2related to the proceedings in an effort to obtain temporary relief from the foreclosure proceedings; however, she failed to do so.

On June 7, 2004, Mr. fly filed a disciplinary complaint against respondent. On June 23, 2004, respondent informed Mr. fly that he was withdrawing from the representation. Subsequently, respondent informed the ODC that he had assigned Mr. fly’s file to a paralegal for monitoring and to prepare the case for filing. However, his paralegal had personal problems that kept her out of the office for an extended period of time, and Mr. fly’s legal matter “fell through the cracks and did not receive the attention it deserved.”

As a result of the foregoing, Mr. fly’s legal matter was neglected for approximately eight months. Furthermore, Mr. fly had to request his file three times before receiving same. Upon receipt of the file, Mr. Ily discovered that his signature had been forged on a verification document, which was then improperly notarized.

Count II — The Conversion Matter

Between 1999 and 2004, while a partner in the law firm Walker, Tooke & Lyons, L.L.P., respondent submitted numerous reimbursement requests for expenses purportedly incurred on behalf of clients. However, he did not perform legal work or incur fees and/or expenses for many of the matters for which he received reimbursement. Nonetheless, he approved the reimbursement requests and received payment directly from the firm’s operating account. His clients were subsequently billed for legal work that had not been performed and for non-existent expenses and/or fees. Respondent admitted that some of the expenses were legitimate while others were not.

| ^Respondent also deposited his personal funds into a sub-trust account that belonged to the firm. He used the sub-trust account as his personal checking account. It does not appear that the firm’s clients were affiliated with the sub-trust account, nor were they harmed by respondent’s use of same.

On December 2, 2004, respondent self-reported this misconduct to the ODC. At that time, respondent estimated that he had converted approximately $30,000 of client funds. However, a February 16, 2005 accounting audit report indicated that respondent received a total of $60,225.22 in “unsupported” funds, meaning the funds were not corroborated by documentary evidence. In August and September 2005, respondent reimbursed a total of $12,243.63 to 88 clients and the firm.

Count III — The Riggs Matter

In June 2002, Gracie Riggs hired respondent to review, evaluate, and revise a living trust and a 1995 power of attorney document. She also hired respondent to prepare her will.

Respondent advised Ms. Riggs that the flat fee for preparing the will would be $300. However, he failed to communicate the fee for the additional matters, despite Ms. Riggs’ requests for this information. Thereafter, Ms. Riggs received invoices indicating that respondent’s fee was $150 per hour. She remitted payment in accordance with the invoices.

In total, Ms. Riggs paid respondent $2,156. Nonetheless, and despite Ms. Riggs’ numerous requests, respondent failed to apprise her of the status of her legal matters. He also failed to produce any documents or communicate with her.

On November 20, 2004, Ms. Riggs mailed respondent a letter terminating his services. On February 3, 2005, respondent acknowledged that he failed to complete |4Ms. Riggs’ legal matter and failed to communicate with her. As such, respondent indicated that he would refund $2,156 to Ms. Riggs. Respondent refunded only $27 to Ms. Riggs.

Count IV— The Hamilton Matter

Respondent drafted a will for Wanda Hamilton. The will listed him as a legatee. A paralegal at respondent’s law firm was named as executrix.

Ms. Hamilton died in 2002. The executrix received a total of $253.89 for Ms. Hamilton’s royalty interest in a property in Oklahoma. In accordance with the will, two certificates of deposit totaling $70,044.63 were transferred to an account to which respondent had access. Respondent withdrew $32,641.65 from said account. A portion of Ms. Hamilton’s estate has been disposed of, but no final judgment of possession has been rendered.

Count V — The Rhodes Matter

In February 2000, respondent prepared an original sale and mortgage that transferred ownership of a piece of property from Sue Reynolds to Freddie Jackson. Ms. Reynolds financed Mr. Jackson’s purchase of the property, and Mr. Jackson executed a promissory note wherein he agreed to make 180 consecutive monthly payments to Ms. Reynolds. Respondent collected the monthly payments for a fee of 25% of the amount collected.

Upon Ms. Reynolds’ death, Syble Rhodes inherited Mr. Jackson’s mortgage note. Mr. Jackson failed to remit numerous consecutive monthly payments. Consequently, in April 2004, Ms. Rhodes hired respondent to institute foreclosure proceedings against Mr. Jackson.

| Jnstead of instituting foreclosure proceedings, respondent granted Mr. Jackson an additional thirty days to remit the delinquent payments without Ms. Rhodes’ consent. Respondent delayed the proceedings for approximately two more months, which resulted in Mr. Jackson being delinquent for approximately seven months.

In June 2004, respondent filed a dation en paiement wherein ownership of the property was transferred back to Ms. Rhodes. Also in June 2004, a federal tax lien was placed on the property as a result of Mr. Jackson’s failure to pay taxes. Respondent informed Ms. Rhodes that neither she nor the property would be affected by the tax lien.

Relying on respondent’s assertion, Ms. Rhodes entered into a contract to sell the property. However, she later learned that she was unable to sell the property because of the tax lien. Respondent contended that he took remedial measures and instituted proceedings to remove the tax lien, but no documentary evidence exists to support respondent’s contention. Ms. Rhodes was unable to re-establish contact with respondent to determine whether the matter was concluded.

DISCIPLINARY PROCEEDINGS

In April 2008, the ODC filed five counts of formal charges against respondent, alleging that his conduct as set forth above violated the following provisions of the Rules of Professional Conduct: Rules 1.1(a) (failure to provide competent representation to a client), 1.3 (failure to act with reasonable diligence and promptness in representing a client), 1.4 (failure to communicate with a client), 1.5(a) (charging an unreasonable fee), 1.5(b) (the scope of the representation and the basis or rate of the fee and expenses for which the client will be responsible shall be communicated to the client), 1.7(a) (a lawyer shall not represent a client if the | (¡representation involves a concurrent conflict of interest), 1.8(c) (a lawyer shall not solicit any substantial gift from a client, including a testamentary gift, or prepare on behalf of a client an instrument giving the lawyer or a person related to the lawyer any substantial gift), 1.15(a) (safekeeping property of clients or third persons), 1.16(c) (a lawyer must comply with applicable law requiring notice or permission of a tribunal when terminating a representation), 1.16(d) (obligations upon termination of the representation), 3.2 (failure to make reasonable efforts to expedite litigation), 5.3 (failure to properly supervise a non-lawyer assistant), 8.1(b) (knowing failure to respond to a lawful demand for information from a disciplinary authority), 8.4(a) (violation of the Rules of Professional Conduct), 8.4(b) (commission of a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer), and 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation).

Respondent failed to answer the formal charges. Accordingly, the factual allegations contained therein were deemed admitted and proven by clear and convincing evidence pursuant to Supreme Court Rule XIX, § 11(E)(3). No formal hearing was held, but the parties were given an opportunity to file with the hearing committee written arguments and documentary evidence on the issue of sanctions. Respondent filed nothing for the hearing committee’s consideration.

Hearing Committee Report

After considering the ODC’s deemed admitted submission, the hearing committee determined that the formal charges have been deemed admitted and proven by clear and convincing evidence. Based on the deemed admitted facts and additional evidence presented by the ODC, the committee determined that respondent violated |7the following provisions of the Rules of Professional Conduct: Rules 1.1(a), 1.3, 1.4, 1.5(a), 1.7(a), 1.8(c), 1.15(a), 1.16(c), 1.16(d), 3.2, 8.4(a), 8.4(b), and 8.4(c). The committee did not discuss the remainder of the rule violations alleged in the formal charges.

The committee further found that respondent intentionally and negligently violated duties owed to his clients, the legal system, and the legal profession. His misconduct caused serious harm to his clients and his law partners. Relying on the ABA’s Standards for Imposing Lawyer Sanctions, the committee determined that disbarment is the baseline sanction.

The committee found the following aggravating factors present: prior disciplinary offenses, a dishonest or selfish motive, a pattern of misconduct, and multiple offenses. No mitigating factors were cited by the committee.

Under these circumstances, the committee recommended that respondent be disbarred.

Neither respondent nor the ODC filed an objection to the hearing committee’s report.

Disciplinary Board Recommendation

After review, the disciplinary board determined that the hearing committee’s factual findings are supported by the factual allegations of the formal charges and/or by the evidence submitted in support of the allegations. The board also determined that respondent violated the following provisions of the Rules of Professional Conduct: Rules 1.1(a), 1.3, 1.4, 1.5(a), 1.5(b), 1.7(a), 1.8(c), 1.15(a), 1.16(d), 3.2, 5.3, |s8.4(a), 8.4(b), and 8.4(c). The board found no evidence in the record to support the charged violations of Rules 1.16(c) or 8.1(b).

The board determined that respondent intentionally and negligently violated duties owed to his clients, the legal system, and the legal profession. His conduct caused serious harm to his clients and law partners. Based on the ABA’s Standards for Imposing Lawyer Sanctions, the board determined that disbarment is the baseline sanction.

The board agreed with the aggravating factors found by the committee and additionally found the aggravating factor of substantial experience in the practice of law (admitted 1973). The board indicated that no mitigating factors are present.

Considering respondent’s misconduct in light of the permanent disbarment guidelines and the prior jurisprudence of this court, the board recommended that respondent be permanently disbarred. The board also recommended that respondent be ordered to pay restitution to his victims.

Neither respondent nor the ODC filed an objection to the disciplinary board’s recommendation.

DISCUSSION

Bar disciplinary matters fall within the original jurisdiction of this court. La. Const, art. V, § 5(B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Quaid, 94-1316 (La.11/30/94), 646 So.2d 343; Louisiana State Bar Ass’n v. Boutall, 597 So.2d 444 (La.1992).

In cases in which the lawyer does not answer the formal charges, the factual allegations of those charges are deemed admitted. Supreme Court Rule XIX, § |911(E)(3). Thus, the ODC bears no additional burden to prove the factual allegations contained in the formal charges after those charges have been deemed admitted. However, the language of § 11(E)(3) does not encompass legal conclusions that flow from the factual allegations. If the legal conclusion the ODC seeks to prove (i.e., a violation of a specific rule) is not readily apparent from the deemed admitted facts, additional evidence may need to be submitted in order to prove the legal conclusions that flow from the admitted factual allegations. In re: Donnan, 01-3058 (La.1/10/03), 838 So.2d 715.

The deemed admitted facts reveal that respondent neglected legal matters, failed to communicate with clients, failed to properly supervise his non-lawyer assistant, engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation, converted client funds to his own use by billing and receiving payment for non-existent expenses and legal fees, failed to communicate a fee arrangement to a client, failed to refund unearned fees, failed to fulfill his obligations upon termination of representations, and engaged in conflicts of interest. Based on these facts, respondent violated the following provisions of the Rules of Professional Conduct: Rules 1.3, 1.4, 1.5(a), 1.5(b), 1.7(a), 1.8(c), 1.15(a), 1.16(d), 3.2, 5.3, 8.4(a), and 8.4(c).

Having found evidence of professional misconduct, we now turn to a determination of the appropriate sanction for respondent’s actions. In determining a sanction, we are mindful that disciplinary proceedings are designed to maintain high standards of conduct, protect the public, preserve the integrity of the profession, and deter future misconduct. Louisiana State Bar Ass’n v. Reis, 513 So.2d 1173 (La.1987). The discipline to be imposed depends upon the facts of each case and the seriousness of the offenses involved considered in light of any aggravating and 11(lmitigating circumstances. Louisiana State Bar Ass’n v. Whittington, 459 So.2d 520 (La.1984).

Respondent’s conduct appears to be more intentional than negligent. He violated duties owed to his clients, the legal system, and the legal profession, causing substantial actual harm. We agree with the hearing committee and the disciplinary board that the baseline sanction is disbarment. The aggravating factors found by the board are supported by the record. There are no mitigating factors. Therefore, the only issue presented for our consideration is whether respondent’s misconduct is so egregious as to warrant permanent disbarment.

Supreme Court Rule XIX, Appendix E depicts conduct that may warrant permanent disbarment. We agree with the disciplinary board that Guideline 1 (“[r]epeated or multiple instances of intentional conversion of client funds with substantial harm”) is applicable in this matter. Respondent admitted to converting approximately $30,000 of client funds over several years. However, an audit revealed that the actual amount was more than $60,000. Of this amount, respondent has only reimbursed a total of $12,243.63. These reimbursements occurred in August and September 2005. The record contains no evidence that respondent has made further efforts at restitution. Respondent has also failed to refund approximately $2,100 in unearned fees to Ms. Riggs.

In light of respondent’s intentional, repeated misconduct, which caused harm to numerous clients, respondent must be permanently disbarred.

DECREE

Upon review of the findings and recommendations of the hearing committee and the disciplinary board, and considering the record, it is ordered that the name of |nS. Judd Tooke, Louisiana Bar Roll number 12862, be stricken from the roll of attorneys and that his license to practice law in the State of Louisiana be revoked. Pursuant to Supreme Court Rule XIX, § 24(A), it is further ordered that respondent be permanently prohibited from being readmitted to the practice of law in this State. It is further ordered that respondent pay full restitution to his victims. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

       Judge Benjamin Jones, of the Fourth Judicial District Court, assigned as Justice Pro Tem-pore, participating in the decision.

      . In 1995, respondent received an admonition for violating Rule 1.5(b) of the Rules of Professional Conduct. In 2004, respondent was suspended from the practice of law for four months, fully deferred, for neglecting a legal matter, resulting in the dismissal of a client's lawsuit on abandonment grounds, failure to communicate with a client, and engaging in conduct prejudicial to the administration of justice. In re: Tooke, 04-0533 (La.9/3/04), 881 So.2d 741.


author: KNOLL, J.,

text:
    STATE of Louisiana v. Tyrone WELLS.
    No. 2009-KK-2556.
    Supreme Court of Louisiana.
    Nov. 25, 2009.
   In re State of Louisiana;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. K, No. 441-698; to the Court of Appeal, Fourth Circuit, No. 2009-K-1577.

Denied.

KNOLL, J.,

would grant with order, reversing the lower courts on the merits of the search warrant issue, but reversing to the trial court the right to hold a contempt hearing on the state’s contemptuous conduct.

GUIDRY, J., would grant.


text:
    STATE of Louisiana v. Lydell MARSHALL.
    No. 2009-KK-2557.
    Supreme Court of Louisiana.
    Nov. 25, 2009.
   In re Marshall, Lydell;—Defendant; Applying For Supervisory and/or RemedIal Writs, Parish of Orleans, Criminal DistriCt Court Div. A, No. 478-448; to the Court of Appeal, Fourth Circuit, No. 2009-K-1502.

Denied.


text:
    STATE of Louisiana v. Tyrone WELLS.
    No. 2009-KK-2619.
    Supreme Court of Louisiana.
    Dec. 3, 2009.
   In re State of Louisiana;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. K, No. 441-698; to the Court of Appeal, Fourth Circuit, No. 2009-K-1624.

Denied.


author: HUGHES, J. PETTIGREW, J., GUIDRY, J.,

text:
    AARON & TURNER, L.L.C. v. Melissa Michelle PERRET and Continental Financial Group, Inc.
    No. 2007 CA 1701.
    Court of Appeal of Louisiana, First Circuit.
    May 4, 2009.
    Writ Denied Oct. 16, 2009.

      Randall A. Shipp, Garth J. Ridge, Baton Rouge, LA, for Defendant-Appellant, Melissa Michelle Perret.
    Connell L. Archey, Jennifer A. Hataway, Baton Rouge, LA, for Plaintiff-Appellee, Aaron <& Turner, L.L.C.
    Before WHIPPLE, KUHN, GUIDRY, PETTIGREW, and HUGHES, JJ.
   ON REHEARING

HUGHES, J.

In this action on a promissory note and mortgage, the defendant/borrower appeals a summary judgment dismissing her re-conventional demand, which asserted a negligence claim against the law firm that performed the loan closing. On June 6, 2008, this court handed down an unpublished opinion in this appeal, reversing in part the decision of the trial court. The matter is now before this court on application for rehearing. Having decided the application for rehearing has merit, we grant the rehearing and render the following decision reversing the trial court judgment and remanding the matter.

FACTS AND PROCEDURAL HISTORY

In 2001, Melissa Michelle Perret refinanced the mortgage on her home by executing a promissory note in favor of ABN AMRO Mortgage Group, Inc. (ABN) and an act of mortgage on her home to secure payment of the promissory note. Aaron & Turner, L.L.C. (Aaron & Turner), the law firm that acted as the closing agent for the transaction, disbursed funds to and on behalf of Ms. Perret during the transaction, acting on the belief that ABN had funded the loan.

When it was discovered several years later that Aaron & Turner had never received the funds to finance the transaction from ABN, Aaron & Turner obtained the February 28, 2001 note by ostensible assignment from ABN and demanded payment from Ms. Perret of the total accumulated amount due on the note, plus late fees and interest. When Ms. Perret refused to remit the sum demanded, Aaron & Turner filed a petition in the 19th Judicial District Court on February 17, 2006, seeking to enforce the mortgage and to recover the amounts outstanding on the note, or in the alternative, to recover the amount loaned under the theory of unjust | .¡enrichment. Ms. Perret and Continental Financial Group, Inc. (CFG) were named as defendants in the petition. By a supplemental petition, Aaron & Turner amended its petition to declare Ms. Perret to be in default on the note and sought to recover the total amount of the note, plus late fees, interest, attorney fees, and court costs. Aaron & Turner also subsequently filed a separate proceeding against Ms. Perret for executory process in a different division of the 19th Judicial District Court.

In response to the instant ordinary proceeding, Ms. Perret filed a motion for partial summary judgment seeking to have the trial court dismiss “all rights, claims and causes of action” premised on the February 28, 2001 mortgage and note, declare the mortgage and note null, and order cancellation of the mortgage and note. Ms. Perret subsequently filed a reconven-tional demand seeking compensation for mental, emotional, pecuniary damages, and losses that she allegedly sustained as result of negligence committed by Aaron & Turner in performing the February 28, 2001 loan closing. Aaron & Turner, in turn, filed a motion for summary judgment seeking dismissal of the claims raised by Ms. Perret in her reconventional demand.

|4Following a hearing on the cross motions for summary judgment, held May 14, 2007, the trial court denied Ms. Perret’s partial motion for summary judgment and granted the motion for summary judgment filed by Aaron & Turner, dismissing with prejudice the claims asserted by Ms. Per-ret in her reconventional demand. A judgment to that effect was signed on May 29, 2007, from which Ms. Perret appeals. In this appeal, Ms. Perret contends that the trial court erred in dismissing her recon-ventional demand based on a finding that the note and mortgage at issue in these proceedings were enforceable.

APPELLATE JURISDICTION

This matter comes before us pursuant to a summary judgment granted in favor of Aaron & Turner that was designated as a final judgment by the trial court for purposes of appeal. See LSA-C.C.P. art. 1915(B). The trial court gave no explicit reasons for its determination that no just reason for delay existed, other than the hope that consideration of the underlying judgment could be made in conjunction with review of another appeal pending before this panel under docket number 2007 CA 1425. Since we cannot determine the merits of this appeal unless our jurisdiction is properly invoked by a valid final judgment (see LSA-C.C.P. art.2083), we must make a de novo determination of whether the designation is proper. See R.J. Messinger, Inc. v. Rosenblum, 2004-1664, pp. 13-14 (La.3/2/05), 894 So.2d 1113, 1122.

Some of the factors we are advised to consider in our de novo determination of whether the judgment is properly designated as a final judgment include: (1) the relationship between the adjudicated and the unadjudicated claims; (2) the possibility that the need for review might or might not be mooted by future developments in the district court; (3) the possibility that the reviewing court might be obliged to consider the same issue a second time; and (4) miscellaneous facts such as delay, economic and solvency considerations, shortening the time of trial, |5frivolity of competing claims, expense, and the like. R.J. Messinger, Inc., 2004-1664 at 14, 894 So.2d at 1122-23.

Based on our consideration of all the relevant factors, we find the trial court’s designation of the judgment as final is proper.

STANDARD OF REVIEW

A motion for summary judgment should be granted 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 the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(B). On a motion for summary judgment, the burden of proof is on the mover. If the moving party will not bear the burden of proof at trial on the matter, that party’s burden on a motion for summary judgment is to point out an absence of factual support for one or more essential elements of 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, and the mover is entitled to summary judgment. LSA-C.C.P. art. 966(C)(2); Robles v. ExxonMobile, 2002-0854, p. 4 (La.App. 1 Cir. 3/28/03), 844 So.2d 339, 341. An appellate court’s review of a summary judgment is de novo, using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate. R.G. Claitor’s Realty v. Rigell, 2006-1629, p. 4 (La.App. 1 Cir. 5/4/07), 961 So.2d 469, 471-72, writ denied, 2007-1214 (La.9/21/07), 964 So.2d 340.

DISCUSSION

In granting Aaron & Turner’s motion for summary judgment, and consequently denying Ms. Perret’s partial motion for summary judgment, the trial |ficourt found that “consideration” was given for the note. It further found that Aaron & Turner was entitled to judgment as a matter of law based on a judgment declaring the note to be valid that was rendered in the executory process suit filed by Aaron & Turner.

At the outset, we address the apparent application by the trial judge in this case of the doctrine of res judicata, in that the decision he rendered was “primarily based on Judge Calloway’s prior ruling” in the executory process suit. To the extent that the trial judge in this ordinary proceeding relied on a ruling made by the judge in the executory process action, that reliance was in error. The ruling made by the trial judge in the executory proceeding addressed only the propriety of injunctive relief in that summary proceeding. Thus, we do not find the requirements of LSA-R.S. 13:4231 sufficiently satisfied for application of the doctrine of res judicata.

Thus, turning to the merits of the motion for summary judgment, as previously outlined, Aaron & Turner filed the motion for summary judgment to obtain dismissal of Ms. Perret’s reconventional demand. The law firm “pointed out,” as the basis for seeking dismissal of her reconventional demand, that Ms. Perret would not be able to establish that the note and mortgage were invalid. The trial court agreed, stating its finding in open court that “consideration” was given for the note and mortgage, and granting Aaron & Turner’s motion for summary judgment.

17Our review of the pertinent Louisiana Civil Code articles and the record presented herein leads us to conclude that the parties and the trial court were misguided in examining the validity of the promissory note and mortgage at issue herein from the perspective of “consideration.”

“An obligation cannot exist without a lawful cause” LSA-C.C. art.1966 (emphasis added). “Cause is the reason why a party obligates himself.” LSA-C.C. art. 1967 (emphasis added). The comments to Article 1967 state, in pertinent part:

Under this Article, “cause” is not “consideration.” The reason why a party binds himself need not be to obtain something in return or to secure an advantage for himself. An obligor may bind himself by a gratuitous contract, that is, he may obligate himself for the benefit of the other party without obtaining any advantage in return.

LSA-C.C. art.1967, Comment (c) (emphasis added).

Louisiana does not follow the common law tradition that requires consideration to effect an enforceable contract. Rather, the mere will of the parties will bind them, without what a common law court would consider to be consideration to support a contract, so long as the parties have a lawful “cause.” The cause need not have any economic value. Sound/City Recording Corp. v. Solberg, 443 F.Supp. 1374, 1380 (D.C.La.1978).

Unlike the common law analysis of a contract using consideration, which requires something in exchange, the civil law concept of “cause” can obligate a person by his will only. The difference has been analogized to a civilian contract-consent approach compared to a common law contract-bargain approach. | ^Consideration is an objective element required to form a contract, whereas cause is a more subjective element that goes to the intentions of the parties. Therefore, in Louisiana law, a person can be obligated by both a gratuitous or onerous contract. Bains v. Young Men’s Christian Association of Greater New Orleans, 2006-1423, p. 5 (La.App. 4 Cir. 10/3/07), 969 So.2d 646, 649, writ denied, 2007-2146 (La.1/7/08), 973 So.2d 727.

In this case, each party had “cause” to enter into this contract: ABN in furtherance of its business as a money lender, and Ms. Perret in order to accomplish refinancing of her home. Ms. Perret complains only of the fact that ABN did not advance the sums it allegedly agreed to under the terms of the contract between the parties.

Under Louisiana law, nonperformance of a promise constitutes a breach of an obligation, rather than a failure of cause. See Sound/City Recording Corp. v. Solberg, 443 F.Supp. at 1380. Louisiana Civil Code article 1986 provides the remedy for breach of an obligation to do:

Upon an obligor’s failure to perform an obligation to deliver a thing, or not to do an act, or to execute an instrument, the court shall grant specific performance plus damages for delay if the obligee so demands. If specific performance is impracticable, the court may allow damages to the obligee.
Upon a failure to perform an obligation that has another object, such as an obligation to do, the granting of specific performance is at the discretion of the court.

In the instant case, ABN failed to perform the obligation dictated under the contractual provisions to advance the loan funds. Putting aside for the moment the advancement of funds by Aaron & Turner, ABN’s failure to perform (which Ms. Perret has denominated a “failure of consideration”) did not nullify the contractual agreement as asserted by Ms. Perret, but rather entitled her to the recovery of 19damages and/or specific performance in accordance with LSA-C.C. art.1986.

ImHowever, there was performance in this case, though it was made by third party Aaron & Turner. “Performance may be rendered by a third person, even against the will of the obligee, unless the obligor or the obligee has an interest in performance only by the obligor.” LSA-C.C. art. 1855. On this point, the supreme court has stated the following:

In general, the creditor cannot refuse payment offered by a third person whether or not interested in the extinction of the obligation ... A payment made by a third person and accepted by the creditor extinguishes the obligation as definitively as one effected by the debtor personally, except where the third person is legally or contractually subrogated to the rights of the creditor. In the last case, the debtor is discharged toward the original creditor, but the obligation continues to exist in favor of the third person who has been subrogated thereto.

Cox v. W.M. Heroman & Co., 298 So.2d 848, 853 (La.1974) (quoting Aubry & Rau, Obligations, 1 Civil Law Transactions, §§ 315-316, pp. 156-158 (1965)).

Under these precepts, payment of the sums ABN was obligated to pay under the contractual terms by third party Aaron & Turner would constitute performance satisfying ABN’s contractual obligation to Ms. Perret.

However, the more appropriate legal question in the instant suit concerns whether there was a “meeting of the minds” or agreement to contract between ABN and Ms. Perret. The Louisiana Civil Code provides: “A contract is formed by the consent of the parties established through offer and acceptance.” LSA-C.C. art.1927. Consent of the parties is necessary to form a valid contract. Where there is no meeting of the minds between the parties, a contract is void for lack of consent. Stockstill v. C.F. Industries, Inc., 94-2072, p. 25 (La.App. 1 Cir. 12/15/95), 665 So.2d 802, 820, writ denied, 96-0149 (La.3/15/96), 669 So.2d 428.

“A contract is null when the requirements for its formation have not been met.” LSA-C.C. art.2029. A contract to which one party has not consented is a In nullity. See Ferguson v. Dirks, 95-560, p. 5 (La.App. 5 Cir. 11/28/95), 665 So.2d 585, 587.

In this case, whether lender ABN consented to this contract was not established. It is undisputed that Ms. Perret signed the necessary legal documents signifying her consent, while Aaron & Turner partner William Aaron signed on behalf of ABN. In his deposition, Mr. Aaron testified that his firm was “instructed” to sign on behalf of ABN, but he was unable to recall the circumstances of that instruction. However, it appears that Aaron & Turner’s only contact with respect to this transaction was with the loan broker, CFG, and that there was no direct contact with ABN. Moreover, the petition filed by Aaron & Turner stated that loan broker CFG “failed to request or obtain the funding of the loan from [ABN].” While not disposi-tive of the issue, the fact that ABN never funded the loan also militates in favor of a conclusion that ABN did not consent to contract with Ms. Perret. Further, the testimony presented in this case clearly indicates that Aaron & Turner did not intend, to advance the sums disbursed at closing from its own funds, but rather did so on the mistaken belief that ABN had forwarded funds for the closing. No other pleading, deposition, answer to interrogatory, admission on file, or affidavit appearing in the record addresses the issue of whether ABN had, in fact, consented to contract with Ms. Perret.

Ms. Perret’s reconventional demand and subsequent motion for summary judgment sought to have the note and mortgage declared null and void. Aaron & Turner’s cross motion for summary judgment sought the dismissal of Ms. Perret’s reconventional demand, urging that she would be unable to prove at trial that the note and mortgage are null and void. Aaron & Turner’s right to proceed under the note and mortgage is derived solely from the assignment thereof by ABN in its favor, which conveyed to Aaron & Turner only the rights ABN actually had in these contract documents. In order to prevail on the issue of the validity of the 112promissory note and mortgage and its right to executory process thereunder, Aaron & Turner must establish ABN had rights to convey in these contractual documents, i.e. that ABN had actually consented to enter into the contract with Ms. Perret. No evidence was presented to resolve this issue. Hence, we hold that the validity and enforceability of the note and mortgage have not been conclusively established in the record and that therefore Aaron & Turner was not entitled to foreclose, via summary judgment, Ms. Per-ret’s right to a trial on the merits of her reconventional demand. Accordingly we conclude Aaron & Turner failed to show that no genuine issue of material fact remains and that it is entitled to judgment as a matter of law; summary judgment was inappropriately granted in this case.

Furthermore, we find that the trial court erred in dismissing Ms. Perret’s re-conventional demand for the additional reason that Aaron & Turner made no showing to address or defeat Ms. Perret’s claim of negligence. In her reconventional demand, Ms. Perret alleged:

8.
... the remedies sought by the (sic) Aaron <& Turner are derived from [its] negligence in failing to confirm the funding of the loan at the original closing and [its] new, renewed and continuing acts of negligence in failing to discover the failure of ABN AMRO to fund the loan until in or about August, 2005.
9.
Additionally, the over $15,000.00 in interest sought by Aaron & Turner was “earned”, at least in large part, from [clients’] funds.
* * *
11.
The actions of Aaron & Turner have damaged [Ms. Perret] by creating derogatory and defamatory public information which attributes the various claims made by Aaron & Turner to her alleged failures and have and continue to cause her mental and emotional pain and suffering and pecuniary damages including attorney fees and the [ ^threatened loss of her home and expenses incurred in connection therewith.

As the movant on the motion for summary judgment, Aaron & Turner had the burden of proof according to La. C.C.P. art. 966(C)(2); however, because the law firm would not bear the burden of proof at trial on Ms. Perret’s reconventional demand, Aaron & Turner needed only to “point out” to the court that there was an absence of factual support for one or more elements essential to Ms. Perret’s recon-ventional claim for negligence. Although Ms. Perret characterizes her claim as simple “negligence” in her reconventional demand, we observe that based on the facts pled, her claim appears to be one of legal malpractice. To establish a prima facie case for legal malpractice, a plaintiff must prove there was an attorney-client relationship, the attorney was guilty of negligence in his handling of the client’s ease or professional impropriety in his relationship with the client, and the attorney’s misconduct caused the client some loss or damage. Sherwin-Williams Company v. First Louisiana Construction, Inc., 2004-0133, p. 3 (La.App. 1 Cir. 5/6/05), 915 So.2d 841, 844.

In its motion for summary judgment, Aaron & Turner, in an attempt to “point out an absence of factual support for one or more essential elements of’ Ms. Perret’s reconventional demand, simply asserted that “[n]o damages can follow as a matter of law from the proper use of an executory proceeding by a noteholder.” Under the facts of this case, we do not agree. Herein, Aaron & Turner is not simply a noteholder, but also acted as counsel during the closing. A claim for damages can be based on an attorney’s negligence in transacting a closing and does not have to be based on a finding that the note and/or mortgage were invalid or unenforceable. See Sherwin-Williams Company, 2004-0133 at pp. 3-7, 915 So.2d at 844-47; Howard v. Wicker, 94-1245, pp. 6-7 (La.App. 1 Cir. 4/7/95), 653 So.2d 845, 848-49.

Further, the arguments and evidence offered by Aaron & Turner in support of its motion for summary judgment do not specifically address any element of Ms. Perret’s legal malpractice claim as required to shift the burden on the motion to Ms. Perret. The overarching language of the motion attacking Ms. Perret’s recon-ventional demand, alone, is insufficient to establish its burden of proof on the motion. See Hoover v. Hoover, 2001-2200, pp. 7-8 (La.4/3/02), 813 So.2d 329, 333-34. Rather, Aaron & Turner was required to point out with specificity the lack of proof of an element essential to Ms. Perret’s negligence claim to prevail on its motion for summary judgment. See Pittman v. State Farm Mutual Automobile Insurance Company, 2006-920, pp. 10-11 (La.App. 5 Cir. 4/24/07), 958 So.2d 689, 694-95. See also Sheppard v. City of Baton Rouge, 2002-2421, pp. 8-9 (La.App. 1 Cir. 9/17/04), 897 So.2d 25, 30, writ denied, 2004-2566 (La.1/14/05), 889 So.2d 268. As the mov-ant on the motion for summary judgment seeking dismissal of Ms. Perret’s recon-ventional demand, Aaron & Turner had to show that there was an absence of factual support for an element of Ms. Perret’s legal malpractice claim. Aaron & Turner failed in that regard. Since Aaron & Turner did not make such a showing, the burden of proof never shifted to Ms. Per-ret to show that she can come forward with sufficient proof on the negligence action asserted in her reconventional demand.

Based on these considerations, we conclude that the trial court erred in granting summary judgment in favor of Aaron & Turner.

| ^CONCLUSION

For the reasons stated herein, we grant Melissa Michelle Perret’s application for rehearing, reverse the summary judgment granted by the trial court, and remand this matter for further proceedings consistent with the foregoing. All costs of this appeal are assessed to the appellee, Aaron <& Turner, L.L.C.

REHEARING GRANTED; JUDGMENT REVERSED; REMANDED.

KUHN, J. Concurs.

PETTIGREW, J., concurs with the results and assigns reasons.

GUIDRY, J. concurs and assigns reasons.

PETTIGREW, J.,

concurring.

|,I concur with the results reached by the majority. I am of the opinion that the procedural quagmire this case finds itself in is due to some prior jurisprudence that misinterpreted La.Code Civ. P. art. 2644. It is my humble opinion that once a creditor files an ordinary proceeding on a promissory note and mortgage, he cannot then dismiss that suit and file a separate suit for executory process on the same promissory note and mortgage.

GUIDRY, J.,

concurring.

|,While I agree that summary judgment was improperly granted and that the summary judgment should be reversed (as was provided in the original opinion rendered in this matter), I previously voted to deny the granting of the rehearing herein, which the majority uses to question the validity of the mortgage and note and then uses that as a basis to reverse the trial court’s judgment in Aaron & Turner, L.L.C. v. Perret, 2007-1425 (La.App. 1st Cir.5/4/09), - So.3d -, 2009 WL 2857974 (unpublished).

In a very lengthy and strained construction, the majority reasons that the summary judgment should be reversed because “whether lender ABN consented to this contract was not established.” Interestingly, the majority ignores the fact that no dispute has ever been raised by any party, or even the non-party ABN, regarding whether ABN consented to the transactions wherein the contractual agreements in dispute were produced. There is evidence in the record to indicate that ABN did consent, but the majority discredits this evidence based on mere allegations from the petition.

| .¿Since a contract is an agreement by two or more parties creating, modifying, or extinguishing obligations, La. C.C. art. 1906, it is implicitly understood that only parties to a contract may assert its relative nullity based on a defect in consent. Dugas v. Modular Quarters, Inc., 561 So.2d 192, 201 (La.App. 3d Cir.1990). Further, a relative nullity may be invoked only by those persons in whose interest the ground for nullity was established, and may not be declared by the court on its own initiative. La. C.C. art.2031. The right of action to declare a relative nullity is available only to the incapable person or to one whose consent has been defective. With regard to all other persons, including the other party to the contract, the contract is valid. Armour v. Shongaloo Lodge No. 352 Free and Accepted Masons, 342 So.2d 600, 604 (La.1977)(Summers, J., concurring); see also In re Quirk, 119 B.R. 99 (W.D.La.1990).

Accordingly, I find the majority’s action of questioning whether ABN consented to the loan transaction as a possible basis for declaring the note and mortgage null to be inappropriate. I therefore concur in the opinion to the extent that the summary judgment is reversed. By granting rehearing and raising on its own the issue of consent, the majority provides a path to reversing the trial court’s judgment in Aaron & Turner, L.L.C. v. Perret, 2007-1425 (La.App. 1st Cir.5/4/09), — So.3d —, 2009 WL 2857974 (unpublished).

      . Because the original opinion rendered in this appeal was not designated for publication, we repeat herein those portions of the original opinion not changed on this rehearing.

      . CFG was the loan broker who allegedly arranged the loan between ABN and Ms. Per-ret. According to the petition, CFG was named as a defendant "in the event that the [n]ote and related mortgage are found to be unenforceable for any reason, CFG would be liable to Aaron & Turner for all amounts Aaron & Turner expended on this loan, due to the negligence of CFG in advising Aaron & Turner that the loan had been funded when in fact CFG had failed to request and obtain funding of the loan.” In response, CFG filed dilatory exceptions of prematurity and improper joinder of parties. A hearing on these exceptions was "passed without date” by the trial court on August 14, 2006 and the record on appeal does not reflect that any further action has been taken in the trial court as to CFG.

      . Ms. Perret attempted to enjoin the executo-ry proceedings without success and appealed the trial court’s denial of her petition for injunctive relief to this court; however, because Ms. Perret's home was sold at sheriff's sale before this court could act on her appeal, her appeal of that judgment was dismissed as moot. Aaron & Turner, L.L.C. v. Perret, 2006-2433 (La.App. 1 Cir. 9/14/07), 971 So.2d 1049. Another appeal has been filed in the executory proceeding and is currently before this court on issues related to the disbursement of the sheriff's sale proceeds, which we also decide this date in Aaron & Turner, L.L.C. v. Perret, 2007-1425 (La.App. 1 Cir.5/4/09), - So.3d -, 2009 WL 2857974 (unpublished).

      . The basis for the invalidity of the promissory note and mortgage as well as the negligence of Aaron & Turner asserted by Ms. Perret is the fact that ABN did not fund the loan and Aaron & Turner conducted the closing without ensuring that ABN had funded the loan.

      . In oral reasons the trial court stated: “I don't agree with Ms. Perret's position that there was a lack of consideration. 1 think the funds were paid and I do think that plaintiff can proceed under this note.... I think, primarily based on Judge Calloway’s prior ruling, plaintiff is entitled to judgment as a matter of law.” When the written judgment was submitted for Judge Morvant’s signature, it contained the following language: "IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the defendant and plaintiff-in-reconvention, Melissa Michelle Perret received consideration in exchange for her execution of the note and related mortgage attached to the Petition....” (Emphasis added.) Plowever, Judge Morvant crossed out, by hand, that portion of the judgment and initialed the alteration. Nevertheless, we find it unnecessary to resolve this discrepancy in light of our disposition herein.

      . Article 1967 further provides: "A party may be obligated by a promise when he knew or should have known that the promise would induce the other party to rely on it to his detriment and the other party was reasonable in so relying. Recovery may be limited to the expenses incurred or the damages suffered as a result of the promisee’s reliance on the promise. Reliance on a gratuitous promise made without required formalities is not reasonable.”

      . At common law, lack of consideration is a good reason to deny enforceability of a promise. In civilian systems derived from the French, such as the Louisiana system of private law, absence of cause, or unlawfulness or immorality of the cause, is a good reason to deprive an obligation of its legal effect. In the law of Louisiana a promise is enforceable when it gives rise to an obligation with a lawful cause and not because it is supported by a consideration. Moreover, in spite of some confusion created by imprecise language in the Louisiana Civil Code of 1870, it is now clearly explained that cause is not consideration. Saul Litvinoff, Still Another Look At Canse, 48 La. L.Rev. 3, 3, 19 (1987).

      . We note that, at the time the pleadings in this suit were filed, LSA-C.C.P. art. 1005 provided:
      The answer shall set forth affirmatively arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, division, duress, error or mistake, estoppel, extinguishment of the obligation in any manner, failure of consideration, fraud, illegality, injury by fellow servant, transaction or compromise, and any other matter constituting an affirmative defense. If a party has mistakenly designated an affirmative defense as an incidental demand, or an incidental demand as an affirmative defense, and if justice so requires, the court, on such terms as it may prescribe, shall treat the pleading as if there had been a proper designation. [Emphasis added.]
      Nevertheless, the inclusion of "failure of consideration” in the text of Article 1005 is not determinative of the issue before this court. When Article 1005 was enacted by 1960 La. Acts, No. 15, the pertinent Louisiana Civil Code articles had not yet been amended. The current versions of LSA-C.C. arts.1966 and 1967 were enacted by 1984 La. Acts, No. 331, which became effective on January 1, 1985. Previously, the precursors to Articles 1966 and 1967, former Articles 1893 and 1896, provided:
      Art. 1893. Necessity for cause
      An obligation without a cause, or with a false or unlawful cause, can have no effect.

      Art. 1896. Cause, definition
      By the cause of the contract, in this section, is meant the consideration or motive for making it; and a contract is said to be without a cause, whenever the party was in error, supposing that which was his inducement for contracting to exist, when in fact it had never existed, or had ceased to exist before the contract was made. [Emphasis added.]
      The 1984 revision of the Civil Code Obligations articles removed all references to "consideration,” and clearly stated that "cause” is not “consideration” in LSA-C.C. art. 1967, Comment (c). Further, we note that Comment (a) to Article 1005 states that "this article is based upon Fed.Rule 8(c).” Federal Rule of Civil Procedure 8(c) provides:
      (c) Affirmative Defenses.
      (1) In General. In responding to a pleading, a party must affirmatively state any avoidance or affirmative defense, including:
      • accord and satisfaction;
      • arbitration and award;
      • assumption of risk;
      • contributory negligence;
      • discharge in bankruptcy;
      • duress;
      • estoppel;
      • failure of consideration [emphasis added];
      • fraud;
      • illegality;
      • injury by fellow servant;
      • laches;
      • license;
      • payment;
      • release;
      • res judicata;
      • statute of frauds;
      • statute of limitations; and

        • waiver.
      Thus, we conclude that the inclusion of the terminology “failure of consideration” in LSA-C.C.P. art. 1005 was in accordance with the terminology present in the former Civil Code articles, but that the legislature failed to amend Article 1005 when these Civil Code articles were revised in 1984 to remove the term "consideration” from the explanation of "cause.” While we further note that the term "consideration” now may frequently be found in the Revised Statutes, it appears to be likewise an importation of common law terminology (as in: the Uniform Unclaimed Property Act (LSA-R.S. 9:151 et seq.), the Louisiana Trust Code (LSA-R.S. 9:1721 et seq., to the extent taken from the Uniform Trusts Act), the Louisiana Uniform Electronic Transactions Act (LSA-R.S. 9:2601 et seq.), the Uniform Fiduciaries Law (LSA-R.S. 9:3801 et seq.), the Uniform Commercial Code (LSA-R.S. 10:1-101 et seq.), etc.), or a shorthand method of conveying the Civil Code concept of a bilateral contract in which something of value is conveyed by each party. Moreover, our review of these provisions reveals no intent by the legislature to change or modify the Civil Code principles cited herein.

      . Article 1855 further provides: "Performance rendered by a third person effects subro-gation only when so provided by law or by agreement.”

      . Although Ms. Perret asserts the note and mortgage are void and unenforceable because she contends that consideration was not given, clearly the validity of these contractual documents has been raised and the fact that this court renders its decision citing a different possible defect (i.e. failure of consent) is of no moment, considering this court’s duty to review the motion for summary judgment de novo using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate. See R.G. Claitor's Realty v. Rigell, 2006-1629 at p. 4, 961 So.2d at 471-72.

      . Louisiana has chosen a system of fact pleading. LSA-C.C.P. art. 854, Official Revision Comments-1960, comment (a). Therefore, it is not necessary for a plaintiff to plead the theory of the case in the petition.


author: HUGHES, J. GUIDRY, J., McDONALD, J.,

text:
    HARRAH’S BOSSIER CITY INVESTMENT COMPANY, L.L.C. v. Cynthia BRIDGES, in her Capacity as the Secretary of the Department of Revenue and the Louisiana Department of Revenue. Cynthia Bridges, Secretary of the Department of Revenue for the State of Louisiana v. Wilhite Electric Company, Inc.
    Nos. 2008 CA 1727, 2008 CA 1728, 2008 CA 1729, 2008 CA 1730, 2008 CA 1731, 2008 CA 1732, 2008 CA 1733, 2008 CA 1734, 2008 CA 1735, 2008 CA 1736, 2008 CA 1737, 2008 CA 1738, 2008 CA 1739, 2008 CA 1740, 2008 CA 1741, 2008 CA 1742, 2008 CA 1743, 2008 CA 1744, 2008 CA 1745, 2008 CA 1746, 2008 CA 1747, 2008 CA 1748, 2008 CA 1749, 2008 CA 1750, 2008 CA 1751, 2008 CA 1752, 2008 CA 1753, 2008 CA 1754, 2008 CA 1755, 2008 CA 1756, 2008 CA 1757, 2008 CA 1758.
    Court of Appeal of Louisiana, First Circuit.
    July 27, 2009.
    Writ Denied Nov. 25, 2009.

      Linda S. Akchin, Christopher J. Dichar-ry, Jenny N. Phillips, Baton Rouge, LA, for Plaintiff/Appellant, Harrah’s Bossier City Investment Company, L.L.C.
    Robert R. Rainer, Drew M. Talbot, Baton Rouge, LA, for Defendants/Appellees, Cynthia Bridges and Louisiana Dept, of Revenue.
    Brian A. Cowan, Malcolm S. Murchison, Shreveport, LA and David F. Waguespack, New Orleans, LA, for Amicus Curiae Churchill Downs Louisiana Horseracing Company, L.L.C. d/b/a Fair Grounds Race Course.
    Before GUIDRY, PETTIGREW, MCDONALD, HUGHES, and WELCH, JJ.
   HUGHES, J.

IsThis is an appeal from a summary judgment ruling that a corporate taxpayer was liable for sales and use taxes for purchases related to its horse racing/offtrack betting/slot machine casino facility, dismissing the taxpayer’s claim for refund of taxes paid under protest, and holding that the taxpayer’s statutory basis for an alternate taxing regime was an “exemption” that had been suspended by LSA-R.S. 47:802(Q) and (R). For the reasons that follow, we reverse and remand.

FACTS AND PROCEDURAL HISTORY

On October 17, 2005, Harrah’s Bossier City Investment Company, L.L.C (“Har-rah’s”) filed the first of thirty-one lawsuits (subsequently consolidated for trial) against Cynthia Bridges, in her capacity as the Secretary of the Louisiana Department of Revenue, and the Louisiana Department of Revenue (referred to herein collectively as “LDR”), seeking the refund of sales and use taxes paid under protest. Harrah’s alleged that during the course of making improvements to add a slot machine casino to its horse racing'offtrack betting facility in Bossier City, considerable purchases were made of building materials, fixtures, flooring, appliances, artwork, computer systems, heating and air conditioning systems, security systems, gaming devices, and other operating equipment. During an audit by LDR, it was determined that Harrah’s had paid no sales and use tax on the ^purchase, lease, and/or rental of this property and demand was made upon Har-rah’s for the payment of these allegedly delinquent taxes. Despite Harrah’s contention that, pursuant to LSA-R.S. 4:168, purchases related to its facility were not subject to sales and/or use taxes, it was compelled to pay these taxes under protest.

In response to these consolidated suits, LDR filed an answer on June 6, 2006, denying the allegations, and on October 20, 2007, filed a reconventional demand asserting the validity of the taxes collected and requesting judgment against Harrah’s “in the total sum of $3,222,894.72 being the total amount of taxes and interest paid under protest by Harrah’s as of the date of the filing of [the] reconventional demand, together with any additional amounts paid under protest [thereafter].” LDR further represented in reconvention that litigating the suits necessitated the hiring of private counsel, entitling it to an award of attorney fees pursuant to LSA-R.S. 47:1512. LDR filed an amended reconventional demand on November 2, 2007, stating:

Since Harrah’s was not entitled to the exemption provided by [LSA-] R.S. 4:168, title to construction materials did not pass tax free from the various vendors to Harrah’s at the time of purchase by the General Contractor and the eighty-plus subcontractors. If title to the said construction materials did pass to Har-rah’s, the agency relationship created by the language of the exemption certificates was effective solely for | ^purposes of sale and transfer of title, but not for purposes of tax exemption, and such purchases were fully taxable to Harrah’s and were not exempt from tax pursuant to [LSA-] R.S. 4:168.

LDR also filed a motion for partial summary judgment seeking a ruling by the trial court that LSA-R.S. 4:168 had been suspended during the audit period by LSA-R.S. 47:302(Q) and (R).

On November 15, 2007 Harrah’s filed an exception of no cause of action as to LDR’s reconventional demand, asserting that because the taxes for which LDR sought judgment had actually been paid, albeit under protest, LDR failed to state a valid cause of action for judgment in the amount of the paid taxes or for statutory attorney fees thereon. Further, Harrah’s filed a cross motion for summary judgment on November 21, 2007 asserting that, as a pari-mutuel horse racing facility and an offtrack wagering facility, it was entitled to exclusion from sales and use tax as provided by LSA-R.S. 4:168 and 4:227.

Harrah’s also filed a supplemental and amending petition on November 26, 2007 asserting detrimental reliance and stating that LDR had previously taken the position and published a Tax Exemption Budget each year for fiscal years 1996/1997 through 2006/2007 in which it was acknowledged that LSA-R.S. 4:168 and 4:227 “remove[d] the liability for sales tax in lieu of the special taxes imposed on” licensed race tracks and licensed offtrack wagering facilities.

A supplemental and amended reconven-tional demand was filed by LDR on November 28, 2007 seeking the recovery of additional taxes allegedly owed by Har-rah’s on taxable transactions for which no tax had been paid (the additional taxes allegedly owed were $1,052,420.13 including interest amounting to $659,118.10), reasserting that LSA-R.S. 4:168 and 4:227 had been suspended by the legislature during the audit period making |fithe transactions at issue taxable, and re-urging its entitlement to statutory attorney fees.

On February 29, 2008 Harrah’s filed an answer to LDR’s reconventional demand, amended reconventional demand, and supplemental and amended reconventional demand, maintaining in essence that sales and use taxes were not owed on the transactions at issue on account of LSA-R.S. 4:168 and 4:227, that these statutes were not suspended, and that the statutes applied to the purchase, lease, procurement, etc. of goods and/or services by its contractor and subcontractors, acting as agents on its behalf.

On February 29, 2008 Harrah’s also filed a peremptory exception of prescription as to LDR’s reconventional demand, amended reconventional demand, and supplemental and amended reconventional demand, citing LSA-C.C.P. art. 1067 and the fact that LDR’s reconventional demand pleadings were filed more than ninety days after the main demand.

A judgment was signed by the trial court on June 12, 2008, which: overruled Harrah’s peremptory exception of prescription, ruled that LSA-R.S. 4:168 and 4:227 were sales tax “exemptions” that were suspended during the audit period by the Legislature pursuant to LSA-R.S. 47:302(Q) and (R), granted partial summary judgment in favor of LDR and dismissed Harrah’s petitions in all of the consolidated cases, and reserved to LDR the claims asserted in reconvention. The judgment further stated that Harrah’s motion for partial summary judgment was not reached by the court, and that the court did not consider Harrah’s claims asserted in its first supplemental and amending petition. The judgment was certified as a final, appealable judgment pursuant to LSA-C.C.P. art. 1915(B), the court finding no just reason for delay because of “economic reasons and time constraints.”

17Harrah’s has appealed and specifies the following assignments of error:

(1) The trial court erred in granting LDR’s motion for summary judgment because: (i) LDR’s affirmative defense of “legislative suspension” of sales tax exemptions had not been pled in its answer and was waived; (ii) LSA-R.S. 4:168 and 4:227 created “exclusions” from sales tax, not sales tax “exemptions”; (iii) the so-called legislative suspension of sales tax exemptions applied only to 2% of the 4% state sales tax; and (iv) LDR failed to establish equal and uniform application of the legislative suspension of sales tax exemption statutes to pari-mutuel and offtrack wagering facilities.

(2) The trial court erred in overruling Harrah’s exception of prescription as to LDR’s amended reconventional demand for additional taxes as the purchases at issue were for the racetrack area of its facility, and were not the subject of the LDR audit that provoked the tax payments made under protest (related to the slot machine gaming and common areas of the facility) or the lawsuits for refund of those payments.

(3) The trial court erred in failing to “recognize” that partial summary judgment was “premature” as to LDR’s recon-ventional demand, as amended and supplemented, and to “clearly and unequivocally” state in judgment that the demands made therein (as well as the defenses raised thereto) are “expressly reserved to both parties” and are not part of the judgment.

(4) The trial court erred in failing to address Harrah’s cross motion for summary judgment.

|s(5) The trial court erred in “failing to clearly and unequivocally” state in judgment that all of Harrah’s claims raised in its amended and supplemental petition related to detrimental reliance (as well as LDR’s defenses thereto) are “expressly reserved to both parties” and are not part of the judgment.

LAW AND ANALYSIS

Motion for Summary Judgment

The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action, except those disallowed by LSA-C.C.P. art. 969; the procedure is favored and shall be construed to accomplish these ends. LSA-C.C.P. art. 966(A)(2). Summary judgment shall be rendered in favor of the mover 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. LSA-C.C.P. art. 966(B).

Appellate courts review summary judgments de novo under the same criteria that govern a district court’s consideration of whether summary judgment is appropriate. Samaha v. Rau, 2007-1726, pp. 3-4 (La.2/26/08), 977 So.2d 880, 882; Allen v. State ex rel. Ernest N. Moriah-New Orleans Exhibition Hall Authority, 2002-1072, p. 5 (La.4/9/03), 842 So.2d 373, 377; Boudreaux v. Vankerkhove, 2007-2555, p. 5 (La.App. 1 Cir. 8/11/08), 993 So.2d 725, 729-30.

In ruling on a motion for summary judgment, the judge’s role is not to evaluate the weight of the evidence or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable fact. All Rdoubts should be resolved in the non-moving party’s favor. Hines v. Garrett, 2004-0806, p. 1 (La.6/25/04), 876 So.2d 764, 765.

A fact is material if it potentially insures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the legal dispute. A genuine issue is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate. Id., 2004-0806 at p. 1, 876 So.2d at 765-66.

On motion for summary judgment, the burden of proof remains with the movant. However, if the moving party will not bear the burden of proof on the issue at trial and points out that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action or defense, then the non-moving party must produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. If the opponent of the motion fails to do so, there is no genuine issue of material fact and summary judgment will be granted. LSA-C.C.P. art. 966(C)(2).

When a motion for summary judgment is made and supported as provided in LSA-C.C.P. art. 967, an adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided above, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him. LSA-C.C.P. art. 967(B). See also Board of Supervisors of Louisiana State University v. Louisiana Agricultural Finance Authority, 2007-0107, p. 9 (La.App. 1 Cir. 2/8/08), 984 So.2d 72, 79-80; Cressionnie v. Intrepid, Inc., 2003-1714, p. 3 (La.App. 1 Cir. 5/14/04), 879 So.2d 736, 738.

hnBecause it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. Richard v. Hall, 2003-1488, p. 5 (La.4/23/04), 874 So.2d 131, 137; Dyess v. American National Property and Casualty Company, 2003-1971, p. 4 (La.App. 1 Cir. 6/25/04), 886 So.2d 448, 451, writ denied, 2004-1858 (La.10/29/04), 885 So.2d 592; Cressionnie v. Intrepid, Inc., 2003-1714 at p. 3, 879 So.2d at 738-39.

Applicable Taxing Provisions

The resolution of this dispute turns on the apparent conflict between the state’s sales tax statute, LSA-R.S. 47:302, and the taxing statutes applicable to horse racing and offtrack betting facilities. See LSA-R.S. 4:168 and LSA-R.S. 4:227. The sales tax statute provides for the levy of “a tax upon the sale at retail, the use, the consumption, the distribution, and the storage for use or consumption in this state, of each item or article of tangible personal property,” “upon the lease or rental within this state of each item or article of tangible personal property,” and “upon all sales of services.” LSA-R.S. 47:302(A), (B), and (C). Various exemptions to this taxing statute have been enacted both within the statute and elsewhere in the Revised Statutes.

Harrah’s contends that the statutory provisions authorizing and governing horse racing and offtrack betting provide “exclusions” from the payment of sales tax to these facilities. In particular, Harrah’s relies on LSA-R.S. 4:168, which states:

The license fees, commissions, and taxes imposed in this Part are in lieu of all other such licenses, sales, excise and | n occupational taxes to the state or to any parish, city, town, or other political subdivision thereof. [Emphasis added.]

and on LSA-R.S. 4:227, which states:

The license fees, commissions, and taxes imposed upon an offtrack wagering facility in this Part are in lieu of all other such licenses, sales, excise, and occupational taxes to the state or to any parish, city, town, municipality, or other political subdivision thereof. [Emphasis added.]

Contrarily, LDR asserts that LSA-R.S. 4:168 and LSA-R.S. 4:227 are “exemptions” from the sales tax imposed by LSA-R.S. 47:302, and that paragraphs (Q) and (R) of LSA-R.S. 47:302 have suspended the effect of these “exemptions” for the tax periods at issue, rendering Harrah’s liable for sales tax.

Harrah’s draws a distinction between an “exclusion,” which it contends is a removal of a class of persons or things from sales tax liability, and an “exemption,” which it contends is a transactional release from sales tax liability. Thus, since only “exemptions” are suspended under LSA-R.S. 47:302(Q) and (R), Harrah’s maintains that the “exclusions” provided to race 112tracks and offtrack wagering facilities by LSA-R.S. 4:168 and LSA-R.S. 4:227 are not affected by that suspension.

Harrah’s position is demonstrated in its citation of Tarver v. World Ship Supply, Inc., 615 So.2d 423 (La.App. 4 Cir.), writ denied, 616 So.2d 672 (La.1993), in which the issue was whether LSA-R.S. 47:305(E) (providing immunity from sales tax on articles of tangible personal property imported into the state, produced or manufactured in the state for export, and on bona fide interstate commerce) constituted an “exemption” or an “exclusion” from sales tax; the court therein stated:

If this section were construed so as to provide an exemption it could fall within the ambit of the legislation referred to above which suspended all of the exemptions in Chapter 2 for the period from July 1, 1986, through July 31, 1988. However, we construe this section to provide for an exclusion rather than an exemption. The difference can readily be seen by reference to the following from section 3.1 of Louisiana Sales & Use Taxation by Bruce J. Oreck:
Two well established rules of statutory construction come into play when considering exclusions and exemptions. A tax exemption is a provision which exempts from tax a transaction which would, in the absence of the exemption, otherwise be subject to tax. That is, there has been a statutory decision not to tax a certain transaction which is clearly within the ambit and authority of the taxing statutes to tax. On the other hand, an exclusion relates to a transaction which is not taxable because it falls outside the scope of the statute giving rise to a tax, ab initio. Transactions excluded from tax are those which by the language of the statutes are defined as beyond the reach of the tax.
The author goes on to say, citing a wealth of authority, that while exemptions from taxation are strictly construed against the taxpayer, statutes imposing the tax, of which exclusions are an integral part, are construed liberally in favor of the taxpayers and against the taxing authority.

Tarver v. World Ship Supply, Inc., 615 So.2d at 426 (cited with approval by Kerr-McGee Corporation v. McNamara, 2000-0770, pp. 10-11 (La.App. 1 Cir. 6/22/01), 826 So.2d 1, 7).

In contrast, LDR relies on the meaning of “exemption” adopted by this court in State v. Exxon Corporation, 95-2501 (La.App. 1 Cir. 6/28/96), 676 So.2d 783. In State v. Exxon Corporation, this court, in considering whether LSA-R.S. 47:305(D)(l)(h) was an exemption that had been legislatively suspended or whether it constituted a method for valuing refinery gas for tax calculation purposes, stated:

Initially, we note that while not conclusive, it is significant that La. R.S. 47:305(D)(l)(h) is located in a section of Title 47 entitled “Exclusions and exemptions from the tax.” However, in deciding whether a provision grants a tax exemption, the words and form used [are] not dispositive; rather it is the effect of the provision which is determinative. “[A]n exemption implies a release from some burden, duty or obligation.” Even if the word “exemption” is not expressly used, an exemption is created if the effect of the provision is to grant an immunity from taxation. As stated by the Supreme Court ..., property “relieved from the burden of taxation is exempt.”

State v. Exxon Corporation, 95-2501 at pp. 5-6, 676 So.2d at 786-87 (citations omitted).

Although the cited cases exemplify the differing interpretations suggested by the parties as to the taxing provisions at issue, they are not dispositive; no case directly on point has been cited to this court and our research has revealed none.

Statutory Interpretation

When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature. LSA-C.C. art. 9. When the language of the law is susceptible of different 114meanings, it must be interpreted as having the meaning that best conforms to the purpose of the law. LSA-C.C. art. 10. The words of a law must be given their generally prevailing meaning. Words of art and technical terms must be given their technical meaning when the law involves a technical matter. LSA-C.C. art. 11. When the words of a law are ambiguous, their meaning must be sought by examining the context in which they occur and the text of the law as a whole. LSA-C.C. art. 12. Laws on the same subject matter must be interpreted in reference to each other. LSA-C.C. art. 13. See also LSA-R.S. 1:3-4.

When interpreting a law, the court should give it the meaning the lawmaker intended. It is presumed that every word, sentence, or provision in the law was intended to serve some useful purpose, that some effect is to be given to each such provision, and that no unnecessary words or provisions were used. Conversely, it will not be presumed that the lawmaker inserted idle, meaningless, or superfluous language in the law or that it intended for any part or provision of the law to be meaningless, redundant, or useless. The lawmaker is presumed to have enacted each law with deliberation and with full knowledge of all existing laws on the same subject. The meaning and intent of a law is to be determined by a consideration of the law in its entirety and all other laws on the same subject matter, and a construction should be placed on the provision in question that is consistent with the express terms of the law and with the obvious intent of the lawmaker in enacting it. Where it is possible to do so, it is the duty of the courts in the interpretation of laws to adopt a construction of the provision in question that harmonizes and reconciles it with other provisions. A construction of a law that creates an inconsistency should be avoided when a reasonable interpretation can be adopted that will not do violence to 11Bthe plain words of the law and will carry out the intention of the lawmaker. When the expressions of a law are “dubious,” the most effectual way of discovering the true meaning of the law is to consider the reason and spirit of it, or the cause that induced the lawmaker to enact it. When a law is susceptible to two or more interpretations, that which affords a reasonable and practical effect to the entire act is to be preferred over one that renders part thereof ridiculous or nugatory. If there is an irreconcilable conflict between the provisions of a law, only one provision can prevail. Bunch v. Town of St. Francisville, 446 So.2d 1357, 1360 (La.App. 1 Cir.1984). See also Ransome v. Ransome, 2001-2361, pp. 5-6 (La.App. 1 Cir. 6/21/02), 822 So.2d 746, 752.

After careful consideration of the matter, we find no ambiguity in the language of LSA-R.S. 4:168 and LSA-R.S. 4:227 (Title 4, Chapter 4, “Racing”). These statutes clearly state that the license fees, commissions, and taxes imposed on the horse racing and offtrack wagering industry by Title 4, Chapter 4, “Racing” are “in lieu of’, which means “instead of’, all other such licenses, sales, excise, and occupational taxes to the state or to any parish, city, town, municipality, or other political subdivision. These provisions effectively remove the horse racing and offtrack wagering industry from the application of the general sales tax law (Title 47, Chapter 2, “Sales Tax,” LSA-R.S. 47:301 et seq.), including its mandatory taxing 11 (¡provisions as well as its exempting and exclusory provisions, substituting instead an alternate taxing regime (for “licenses, sales, excise, or occupational taxes”), contained wholly within Title 4, Chapter 4, “Racing.”

The replacement of Title 47, Chapter 2 taxing provisions with Title 4, Chapter 4 taxing provisions does not “relieve” the race track/offtrack wagering facility taxpayer from a tax burden (the hallmark of an “exemption” as argued by LDR). Because the effect of LSA-R.S. 4:168 and LSA-R.S. 4:227 is to substitute the Title 4 taxing provisions for the Title 47 sales tax provisions for the determination of the tax burden, a tax burden remains and is not done away with or “relieved;” therefore, the application of these provisions cannot be called an “exemption.” Nor do we find the term “exclusion” a precise description of these statutes, as other statutory sales tax “exclusions” merely exclude the payment of sales tax without the replacement of an alternate or substitute tax burden. See LSA-R.S. 47:301 (definitional exclusions); LSA-R.S. 47:305(E) (interstate commerce exclusion).

|17We reject LDR’s assertion that the definition of “exemption” “fits this case like a glove” and that “if it looks like a duck, quacks like a duck, and walks like a duck, it is a duck.” It is because the taxing scheme at issue in this case does not exactly fit the characteristics of either an “exemption” or an “exclusion” that we must conclude it is something other than either an exemption or an exclusion. The grant of an “exemption” represents a legislative decision not to tax when a transaction would otherwise be taxable. The grant of an “exclusion” sets apart, by legislative definition, a transaction as not taxable because it falls outside the taxing statute. See Tarver v. World Ship Supply, Inc., 615 So.2d at 426. Neither of these concepts precisely fits the circumstances considered herein. There is no sales tax “exclusion” because racing facilities have not been placed outside the scope of taxation by any definitional provision applicable to sales tax law (see LSA-R.S. 47:301-302). Nor is there a sales tax “exemption” because the legislature has not excused racing facilities from taxation, but rather the legislature has substituted one system of taxation (LSA-R.S. 4:161 et seq.) for another (LSA-R.S.47:302).

We further reject LDR’s assertion that the legislative treatment of racing facilities vis-á-vis the imposition of sales tax is “conditional.” LDR asserts that if a racing facility cannot prove payment of the fees, | ^commissions, and taxes imposed by LSA-R.S. 4:168 and LSA-R.S. 4:227, “the condition precedent is not satisfied and [the racing facility] must pay taxes on [its] purchase like everybody else.” However, the pertinent statutes, LSA-R.S. 4:168 and LSA-R.S. 4:227, do not contain any language making the substitution of the Title 4 taxing statutes for other taxing statutes “conditional,” and LDR cites no authority for this assertion. Moreover, other Title 4 provisions are in place to ensure the payment of the fees, commissions, and other deductions imposed therein: a deposit is required by LSA-R.S. 4:161 and 161.2 that is refundable after payment of specified fees, and LSA-R.S. 4:152 and 4:160 authorize the Louisiana Racing Commission to “refuse, suspend, or withdraw” “licenses, permits, and privileges” granted by it for non-compliance with the provisions of LSA-R.S. 4:141 et seq. Presumably, LDR refers to a condition precedent to its own internal requirement that a person applying to it for a sales tax exemption certificate present proof that payment of other governmental fees due have been paid pri- or to the issuance by LDR of a sales tax exemption certificate. However, the existence of such an administrative procedure does not affect the application of statutory law. Consequently, we hold that LSA-R.S. 4:168 and LSA-R.S. 4:227 have not been suspended by LSA-R.S. 47:302(Q) or (R). Because the trial court erred in ruling in favor of LDR and dismissing Harrah’s lawsuits, we reverse the judgment. Further, the trial court failed |13to reach the motion for summary judgment filed by Harrah’s, thus we remand the matter for further proceedings in accordance with the foregoing.

CONCLUSION

For the reasons assigned herein, the summary judgment granted by the trial court in favor of the Louisiana Department of Revenue and Cynthia Bridges, in her capacity as the Secretary of the Louisiana Department of Revenue, is hereby reversed and the matter is remanded for further proceedings; all costs of this appeal, in the amount of $18,026.64, are to be borne by the Louisiana Department of Revenue and Cynthia Bridges, in her capacity as the Secretary of the Louisiana Department of Revenue.

REVERSED AND REMANDED.

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

PETTIGREW, J., concurs.

WELCH, J., concurs without reasons.

McDONALD, j., dissent and assigns reasons.

GUIDRY, J.,

concurring in part and dissenting in part.

hi concur with the result reached by the majority relative to Harrah’s being covered by an alternative taxing scheme under La. R.S. 4:168 and La. R.S. 4:227 only as it relates to its pari-mutuel operations. However, I dissent to the extent that the majority extends the application of La. R.S. 4:168 and La. R.S. 4:227 to Harrah’s slot machine operations, which were authorized long after the enactment of La. R.S. 4:168 and La. R.S. 4:227 and for which none of the fees, commissions, and taxes provided for in La. R.S. 4:168 and La. R.S. 4:227 are applicable.

McDONALD, J.,

Dissenting.

liThe real issue in this case is whether the applicable statutes provide for an exemption or an exclusion. If an exemption, then the taxes are due; if an exclusion, they are not. The majority has concluded that they are exclusions and Harrah’s does not owe the tax. I disagree and believe La. R.S. 4:168 and La. R.S. 4:227 provide for an exemption from the taxes. Once these exemptions were suspended by the Legislature pursuant to La. R.S. 47:302(Q) and (R) the taxes became due.

This case has been well briefed and each side’s position is well argued. The majority suggests that there are other taxes imposed on Harrah’s that are a 12substitute for the regular licensing, sales, excise, and occupational taxes that would be imposed. Since these license fees, commissions, and taxes are in lieu of the normal taxes, they are a substitute for them and create an alternate taxing regime. Rather than relieve the taxpayer of a tax burden (an exemption), the statutes create a separate taxing scheme which makes it an exclusion.

However, race tracks such as Harrah’s paid sales taxes for years beginning in 1948. In 1968 the exemptions were created when La. R.S. 4:168 was enacted. The suspension of these exemptions was created in 1986. Thus, the taxes were paid for the 20 year period from 1948 until 1968, were exempted from 1968 until 1986, and then suspended in 1986. I believe the argument of LDR concerning the meaning of the term “in lieu of’ is more persuasive. LDR suggests that this term means three things.

First, in 1968 purchases by race track operators would be subject to sales, excise, and occupational license taxes just like everyone else were it not for the action of the legislature in providing the exemption. Such purchases had been subject to such taxes since 1948. However, in 1968 they would not have to pay such taxes any longer because they would be exempt from them and pay the enumerated taxes instead, or “in lieu of’ them.

Second, since race track operators were to be subject to the “license fees, commissions, and taxes imposed in this Part” they would be exempt from the taxes imposed on those not engaged in the horse race industry. In other words, they would be exempt from these taxes imposed on other businesses.

Third, the exemption was conditional. In order to receive the exemption, the race track had to prove that it had paid those taxes and fees imposed on them. If they could not prove they had paid the taxes, license fees, and commissions specifically imposed on them, then they must pay the sales taxes imposed on everyone else.

_JjThe majority quotes the difference between an exclusion and exemption as found in Tarver v. World Ship Supply, Inc., 615 So.2d 423 (La.App. 4 Cir.), writ denied, 616 So.2d 672 (La.1993), quoting Bruce J. Oreck:

Two well established rules of statutory construction come into play when considering exclusions and exemptions. A tax exemption is a provision which exempts from tax a transaction which would, in the absence of the exemption, otherwise be subject to tax. That is, there has been a statutory decision not to tax a certain transaction which is clearly within the ambit and authority of the taxing statutes to tax. On the other hand, an exclusion relates to a transaction which is not taxable because it falls outside the scope of the statute giving rise to a tax, ab initio. Transactions excluded from tax are those which by the language of the statutes are defined as beyond the reach of the tax.

There is no question that sales taxes could be imposed on horse race track purchases. In fact, from 1948 until 1968 these sales taxes were paid by these facilities. In 1968, the legislature made the decision not the tax these purchases by race track operators if they paid other taxes that were imposed. This is the definition of an exemption, not an exclusion. For these reasons, I respectfully dissent.

      . A thirty-second lawsuit was filed by LDR against one of Harrah’s electrical contractors in the 26th Judicial District Court, Bossier Parish. LDR alleged in this suit that the defendant contractor failed to pay sales tax on purchases of materials made for use in the performance of the defendant’s contract with Harrah's "in the real property construction of Harrah's Louisiana Downs.” Harrah's intervened in this suit and filed a cross-claim against LDR asserting that the amount LDR sought to recover was included in an amount previously paid under protest by Harrah’s; Harrah's also reiterated issues raised in the other lawsuits. A judgment was rendered by the 26th J.D.C. in January 2008 transferring the matter to the 19th J.D.C. for reasons of forum non conveniens. Thereafter, the transferred case was consolidated for trial with the other thirty-one cases.

      . The audit period was from January 1, 2003 through December 31, 2005.

      . The total amount Harrah’s seeks to recover from LDR in its thirty-one suits is $3,347,592.61.

      . In its reconventional demand, LDR alleged:
      Harrah’s is not entitled to any sales and use tax exemption with respect to the material, supplies and equipment purchased to enable [sic] the General Contractor and the eighty-plus subcontractors for use and consumption in the construction of the new slot machine casino.

      Harrah’s is also not entitled to a tax exemption for the purchases, leases, rentals and uses by it individually with respect to the construction, furnishing, equipping and operating the new slot machine casino.

      Harrah’s is not entitled to a tax exemption for the purchases, leases, rentals and uses by it individually with respect to purchases of articles for the "common areas” of the facility that serve patrons of both the race track and the slot machine casino, such as restrooms and restaurants.

      . Harrah's points out that LSA-R.S. 47:302 provides for only 2% of the state's 4% sales tax, while the remaining 2% is authorized as follows: LSA-R.S. 47:321, 1%; LSA-R.S. 47:331, 0.97%; and LSA-R.S. 51:1286, 0.03%. Harrah's argues that LSA-R.S. 47:302(Q) and (R) do not apply to LSA-R.S. 47:321, LSA-R.S. 47:331, and LSA-R.S. 51:1286.

      . Section 168 is contained in Part I, "Horse Racing,” of Chapter 4, "Racing," of Title 4, "Amusements and Sports.”

      . Section 227 is contained in Part II, "Offtrack Wagering,” of Chapter 4, "Racing,” of Title 4, "Amusements and Sports.”

      .Louisiana Revised Statute 47:302 provides in pertinent part:
      Q. Notwithstanding any other provision of law to the contrary, including but not limited to any contrary provisions of this Chapter, for the period July 1, 2002 through June 30, 2004, the exemptions to the tax levied pursuant to the provisions of this Section, except for those exemptions provided by R.S. 39:467 and 468, R.S. 47.305(A)(1), (B), (D)(1)(f), (j), (k), (Z), (m), (s), and (t), and (G), 305.1, 305.2, 305.3, 305.8, 305.10, 305.14, 305.15, 305.20, 305.25(A)(1) and (2), 305.37, 305.38, 305.46, and 305.50, and R.S. 51:1787, shall be inapplicable, inoperable, and of no effect.
      R. (1) Notwithstanding any other provision of law to the contrary, including but not limited to any contrary provisions of this Chapter, for the period July 1, 2004, through June 30, 2009, the exemptions to the tax levied pursuant to the provisions of this Section, except for those exemptions provided by R.S. 39:467 and 468, R.S. 47:305(A)(1), (B), (D)(1)(f), (j), (k), (Z), (m), (s), and (t), and (G), 305.1, 305.2, 305.3, 305.8, 305.10, 305.14, 305.15, 305.20, 305.25(A)(1) and (2), 305.37, 305.38, 305.46, 305.50, and 305.51, and R.S. 51:1787, shall be inapplicable, inoperable, and of no effect.
      (2) Notwithstanding any other provision of law to the contrary, including but not limited to any contrary provisions of this Chapter, the exemption provided for in R.S. 47:305(A)(2) and 305.25(A)(3) shall be applicable, operable, and effective from July 1, 2007.
      [Emphasis added.]

      . We acknowledge the amicus curiae brief filed by Churchill Downs Louisiana Horserac-ing Company, L.L.C. d/b/a Fair Grounds Race Course, citing the legislative declaration of the public policy interest, as expressed in LSA-R.S. 4:141 and LSA-R.S. 27:352, in promoting the continued economic viability of the horse racing industry, particularly in light of the detrimental impact presented by other legalized wagering facilities, such as the lottery, riverboat gaming, and land-based casino gaming. However, because we find no ambiguity as to the meaning of LSA-R.S. 4:168 and LSA-R.S. 4:227, we find it unnecessary to examine legislative intent.

      . "In lieu of” means "instead of; in place of; in substitution for.” State ex rel. Saint v. City of New Orleans, 166 La. 817, 819, 118 So. 30, 31 (La.1928). See also State v. Escalade, 150 La. 638, 91 So. 135 (La.1921) (on rehearing) (stating that " ‘[i]n lieu of ... is taken from the French language, and means 'in place of or ‘instead of "); and Black’s Law Dictionary 791 (7th ed.1999) (defining "in lieu of” as "[i]nstead of or in place of; in exchange or return for”).

      . This holding also applies to Harrah’s slot machine casino, opened pursuant to LSA-R.S. 27:351 etseq., the “Louisiana Pari-mutu-el Live Racing Facility Economic Redevelopment and Gaming Control Act,” which was enacted specifically to authorize slot machine gaming at eligible live horse racing facilities. See LSA-R.S. 27:353. See also LSA-R.S. 33:9561.

      . The license fees, commissions, and deductions from racing proceeds authorized to be levied by Title 4, Chapter 4, "Racing” are addressed in Sections 161, 161.2, 162, 163.1, 166, 166.1, 166.2, 166.3, 166.5, 166.6, 166.7, 167, 169, 216, and 218.

      .We are not persuaded by LDR’s suggestion that the application of the term “exemption” to LSA-R.S. 4:168 found in Traigle v. Fairgrounds Corp., 288 So.2d 409 (La.App. 4 Cir.), writ refused, 292 So.2d 246 (La.1974), is dis-positive of the issue currently before this court. In Traigle, the tax collector was not claiming sales taxes on items that the defendant race track bought for its own use, but only on those items that were sold on a retail basis to the patrons of the race track. The Fourth Circuit ruled that LSA-R.S. 4:168 did not provide an "exemption” to the defendant race track from a duty to collect sales tax on sales made to its patrons. As to an occupational license tax sought to be collected, the court found LSA-R.S. 4:168 provided an "exemption.” The denomination of LSA-R.S. 4:168 as an “exemption” in Traigle was merely dicta since classification of LSA-R.S. 4:168 as an "exemption,” an "exclusion,” or an "alternate taxing regime” was not an issue in the case; nor were sales tax “exemptions” legislatively suspended at the time the case was rendered.

      . See Associated Hospital Services, Inc. v. State, Department of Revenue and Taxation, 588 So.2d 356, 358 (La.1991).

      . Kerr-McGee Corporation v. McNamara, 2000-0770 at p. 14, 826 So.2d at 9.

      . The LDR cites this court to LSA-R.S. 12:425 as an example of another group of taxpayers with a similar taxation scheme as that presented herein in support of their argument that the taxing scheme applicable to racetracks is an "exemption” that has been suspended by the legislature. However, we find the cited statute, applicable to electric cooperatives, to be distinguishable as the language of the statute clearly brings the tax relief granted therein within the definition of "exemption.” The statute provides:
      Each cooperative shall pay annually, on or before the first day of July, to the department of revenue, a fee of ten dollars for each one hundred persons or fraction thereof to whom electricity is supplied within the state by it, but shall be exempt from all other excise and income taxes whatsoever.
      LSA-R.S. 12:425 (emphasis added). No such denomination exists in the Title 4 statutes at issue herein.

      . The plain language of legislation must be applied as written; it is not the function of this court to judge the wisdom or desirability of legislation. See Lakeside Imports, Inc. v. State, 94-0191, p. 6 (La.7/5/94), 639 So.2d 253, 257; Authement v. Davidson, 366 So.2d 986, 990 (La.App. 1 Cir.1978). The LDR’s attempts to bring racetrack operators within the purview of sales tax law is properly directed to the legislature. See A & P Boat Rentals, Inc. v. Cronvich, 361 So.2d 1260, 1265 (La.App. 1 Cir.), writ denied, 363 So.2d 923 (La.1978).

      . Having decided the case on this issue, we find it unnecessary to address Harrah’s remaining assignments of error.