author: McDonald, J.

text:
    LOUISIANA DEPARTMENT OF WILDLIFE AND FISHERIES, as an Agency of the State of Louisiana v. COMITE DIRT PIT, INC.
    2016 CA 0897
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: FEBRUARY 17, 2017
    Jeff Landry, Attorney General and Ryan M. Seidemann, Assistant Attorney General and Duncan S. Kemp, IV, Baton Rouge, Louisiana, Attorneys for Plaintiff/Appellee, Louisiana Department of Wildlife and Fisheries
    Donna U. Grodner, Baton Rouge, Louisiana, Attorney for Defendant/Appellant, Comite Dirt Pit, Inc.
    BEFORE: PETTIGREW, McDonald, and CALLOWAY , JJ.

       Judge Curtis A. Calloway, retired, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

   McDonald, J.

|gIn this appeal, a dirt pit owner challenges a judgment finding the trial court had subject matter jurisdiction over an agency’s enforcement action against the dirt pit owner. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

The Comite Dirt Pit, Inc. (CDP) is a family-owned business located in East Baton Rouge Parish on the left descending bank of the Comite River. Since approximately 1984, CDP has surface mined sandy material such as river silt to sell to contractors for building foundations. In February 2009, Chris Davis and Matthew Weigel, Louisiana Department of Wildlife and Fisheries (LDWF) biologists, visited CDP’s site as part of their duties involving the permitting of activities along certain scenic Louisiana rivers. They determined that CDP was conducting its surface mining activities without a permit at a location where the Comite River was designated as a “natural and scenic river” under the Louisiana Scenic Rivers Act (LSRA), LSA-R.S. 56:1840, et seq.

In May 2009, LDWF Secretary Robert J. Barham issued a Cease and desist order to CDP, under the LSRA’s enforcement provisions, ordering CDP to immediately cease all mining activities and removal of trees along a designated portion of the Comite River, as identified on attached maps. The cease and desist order stated that the LDWF had determined CDP violated the LSRA, and rules promulgated under the act, by mining immediately adjacent to a natural and scenic river without a permit and by commercially removing trees within 100 feet of the river. The cease and desist order further ordered CDP to contact the LDWF Scenic Rivers Coordinator within five days and to submit a restoration plan for the river bank within 90 days. The cease and desist order explained that noncompliance with its terms was punishable by civil and criminal penalties, possible imprisonment, and further enforcement action. The record indicates that CDP received but did not respond to the cease and desist order.

In June 2009, Messrs. Davis and Weigel returned to CDP and saw that CDP continued to mine and that its mining activity had extended further down and caused breaching of the Comite River bank, in violation of the cease and desist order. Within a few days, the LDWF filed a petition for a temporary restraining order (TRO), preliminary |sand permanent injunctions, and declaratory judgment against CDP.

On June 19, 2009, the trial court signed a TRO, restraining' CDP from: (1) any mining related activity (a) between the Comite River’s ordinary low water mark and the access road running generally parallel to the river bank, and (b) within 100 feet of the ordinary low water mark in areas without an access road; and (2) any tree removal/cutting/harm within' 100 feet of the Comite River’s low water mark. The TRO also set a hearing on the preliminary injunction for July 1, 2009. On that day, CDP filed an exception pleading prematurity based on the LDWF’s failure to hold an adjudicatory hearing, and also filed an answer, a reconventional demand, and a motion to dissolve the TRO. In lieu of the scheduled hearing, the parties agreed on the record in open court to continue the TRO indefinitely. Later, on October 5, 2009, the trial court signed an order memorializing the parties’ agreement and repeating the TRO’s prohibitory terms applicable to CDP’s mining activity (2009 Consent Order).

Over the next five months, discovery was conducted and the LDWF responded to CDP’s pleadings. Then, in early March 2010, Messrs. Davis and Weigel returned to CDP and saw evidence of recent mining activity within areas proscribed by the continuing TRO. The LDWF promptly filed a rule for contempt against CDP for violating the 2009 Consent Order. The trial court set the rule for hearing, but, on June 29, 2010, in lieu of the hearing, the parties again agreed to continue the TRO indefinitely. Additionally, CDP agreed to restore certain areas along the Comite River bank. On October 13, 2010, the trial court signed an order memorializing the parties’ agreement, repeating the TRO’s prohibitory terms, and ordering CDP to comply with an attached Initial Restoration Plan, which set forth the terms of CDP’s restoration obligations (2010 Consent Order). CDP’s president, Shane Rush, and all attorneys of record signed the 2010 Consent Order. The Initial Restoration Plan required CDP to complete restoration of defined areas in phases, with deadlines occurring in August 2010, October 2010, and April 2011. Notably, however, in the Initial Restoration Plan, CDP disclosed that the U.S. Army Corps of Engineers (the Corps) had informed it that the Corps had plans to expropriate all of CDP’s property adjacent to the Comite River. Thus, the Initial Restoration Plan contained an express provision that CDP and the LDWF would meet |4with the Corps before the expropriation to determine what modifications to the plan would be needed.

Messrs. Davis and Weigel visited CDP in November 2010 and saw no signs of restoration. In December 2010, the LDWF sent Mr. Rush a letter stating that CDP was being placed in default for noncompliance with the 2010 Consent Order and requesting payment of stipulated damages, as provided in the Initial Restoration Plan. In March 2011, the LDWF filed a motion to enforce the 2010 Consent Order, and in May 2011, after observing signs of recent excavation at CDP, filed a second rule for contempt against CDP. The record does not show the disposition of the rule.

In July 2013, after retaining new counsel, CDP filed a motion to set aside the 2010 Consent Order based on mistake of fact. CDP essentially alleged that the only reason it signed the 2010 Consent Order was because it believed the Corps was going to expropriate its property for construction of the Comite River Diversion Canal, making it unlikely that restoration would be necessary. According to CDP, the LDWF was part of numerous discussions with CDP, the Corps, and the Amite River Basin District Commission regarding the expropriation of CDP’s property, such that any restoration of the property would be mooted. CDP alleged that it learned in January 2013 that the expropriation was not going to happen and that it would not have signed the 2010 Consent Order had it known there would be no expropriation. Before CDP’s motion was heard, it filed an exception of lack of subject matter jurisdiction, failure to exhaust administrative remedies, and action in nullity. The LDF opposed the exception.

In January 2014, the trial court stayed the matter to await the outcome of a suit CDP filed against LDWF Secretary Bar-ham in federal court. Ultimately, the federal suit was dismissed, and the trial court lifted the state court stay and held a hearing on CDP’s motion and exception, and LDWF’s motion to enforce the 2010 Consent Order. On February 24, 2016, the trial court signed a judgment: (1) denying CDP’s exception of lack of subject matter jurisdiction, failure to exhaust administrative remedies, and action in nullity; (2) denying CDP’s motion to set aside the 2010 Consent Order based on mistake of fact; (3) granting the LDWF’s motion to enforce the 2010 Consent Order; and (4) ordering CDP to restore the subject property as provided in the Initial [ ^Restoration Plan, subject to a modification of dates therein.

CDP appeals from the adverse judgment, contending the trial court erred in concluding it had subject matter jurisdiction to decide this matter without first requiring the LDWF to exhaust administrative proceedings. Alternatively, CDP argues the trial court erred in refusing to address whether the LSRA applies to CDP’s property. CDP does not appeal the judgment insofar as it denied CDP’s motion to set aside the 2010 Consent Order, granted the LDWF’s motion to enforce the 2010 consent Order, and ordered CDP to restore the subject property.

DISCUSSION

CDP first argues the LDWF was required to exhaust administrative remedies before bringing this action in district court. We begin with a background of applicable law. In 1970, the Louisiana legislature enacted the LSRA, currently LSA-R.S. 56:1840-1856, which established the Louisiana Natural and Scenic Rivers System (System). LSA-R.S. 56:1840 and 1841(A). The LSRA’s purposes include the preservation and protection of the wilderness qualities, scenic beauties, and ecological regime of certain free-flowing Louisiana rivers, streams, and bayous. LSA-R.S. 56:1841. Since the LSRA’s enactment, the Comite River, from the Wilson-Clinton Highway in East Feliciana Parish to the entrance of White Bayou in East Baton Rouge Parish, has been designated as a natural and scenic river. Former LSA-R.S. 56:1846(8) (as originally enacted by 1970 La. Acts No. 398, § 1). CDP does not dispute that its property lies within this designated area.

The Secretary of the LDWF is the administrator of the System. LSA-R.S. 56:1842(2) and 1843(A). He has the authority, among other things, to adopt rules necessary to implement the LSRA, including the regulation of those activities that may directly and significantly degrade the ecological integrity of a natural and scenic river, such as mining for natural resources. LSA-R.S. 56:1843(B)(1) and 1850(A)(4). No person shall engage in activity governed by the LSRA, or rules thereunder, unless he first obtains a permit from the LDWF Secretary. LSA-R.S. 56:1849(A); Rapides Par. Waterworks Dist. No. 3 v. Broussard, 95-361 (La.App. 3 Cir. 10/18/95), 663 So.2d 475, 479, writ denied, 95-2777 (La. 1/26/96), 666 So.2d 679.

LUnder LSA-R.S. 56:1851, the LDWF Secretary has multiple powers to address violations of the LSRA. Under Section 1851(A), he has the authority to impose civil penalties for violation of the LSRA, or rules adopted thereunder, and to suspend, annul, withdraw, or revoke LSRA permits. And, under Section 1851(B), the LDWF Secretary may issue cease and desist orders, compliance orders, and obtain injunctions or other appropriate relief, upon determining that a violation of the LSRA, or rules adopted thereunder, or agreements made pursuant to the LSRA, has occurred, is occurring, or is about to occur. Section 1851(A)(2) requires that, before taking either action set forth in Section 1851(A)(1), the LDWF Secretary must hold an adjudicatory hearing in accordance with the Louisiana Administrative Procedure Act (LAPA), LSA-R.S. 49:950 et seq., and issue a ruling based on that hearing. On the other hand, Section 1851(B) does not require an adjudicatory hearing before the LDWF Secretary takes any action authorized under its provisions. Thus, under the statute alone, the LDWF was not required to hold an adjudicatory hearing before issuing a cease and desist order to CDP or before obtaining injunctive relief against it.

Our inquiry does not end there, however, because in addition to the LSRA’s statutory provisions, the LDWF has also adopted rules that dictate its actions under the LSRA. Under La. Admin. Code, tit. 76, pt. IX, § 119, the LDWF Secretary’s powers to address LSRA violations are the same as those set forth in LSA-R.S. 56:1851. Section 119 does not reference an adjudicatory hearing similar to that required by LSA-R.S. 56:1851(A), but rather states that, for any violation, the LDWF Secretary’s enforcement action must be “in accordance with [the LAPA].” But, the phrase “in accordance with the LAPA” does not mean the LDWF Secretary had to conduct an adjudicatory hearing before issuing the cease and desist order to CDP or before obtaining injunctive relief against it. Under the LAPA, adjudicatory hearings are required in specifically defined situations where the agency process is for formulation of a statutorily-defined “decision” or “order.” See LSA-R.S. 49:951(1) and (3); see also Bd. of Comm’rs. of Southeast La. Flood Prot. Auth-East ex rel. Orleans Levee Dist. v. La. Dep’t. of Natural Resources, 11-0262 (La.App. 1 Cir. 9/29/11), 78 So.3d 750, 752. A “decision” or “order” is a final agency disposition, in any matter other than rulemaking, required by constitution or ^statute to be made only after notice and hearing. LSA-R.S. 49:951(3). Although CDP sets forth numerous definitions and provisions of the LAPA in its brief, there has been no showing that the constitution or a statute required that the LDWF hold a hearing before issuing a cease and desist order, before seeking injunctive relief, or before it sought to enforce the 2010 Consent Order to which the CDP voluntarily agreed. CDP’s contrary argument is without merit.

CDP next argues that the trial court should have determined the LSRA does not apply to its property, and CDP “never had its day in court” to prove such. Specifically, CDP argues it was not allowed to offer evidence that its property is private and that the section of the Comite River running through its property is a non-navigable stream. Based on CPD’s execution of the 2010 Consent Order and the Initial Restoration Plan, we find that CDP cannot now dispute the applicability of the LSRA to its property.

First, we note that CDP had several opportunities to contest the LDWF’s cease and desist order and its subsequent enforcement action in court. Initially, the May 2009 cease and desist order instructed'CDF to contact the LDWF Scenic Rivers Coordinator within five days of receipt of the order and warned that noncompliance was punishable by further enforcement action. However, CDP did not respond to the cease and desist order. When the LDWF later obtained the TRO, the trial court set a hearing on the preliminary injunction at which CDP could have had its day in court. Rather, in lieu of the hearing, CDP agreed to the 2009 Consent Order, which continued the TRO indefinitely and prohibited CDP from mining along the Comite River. When the LDWF later filed a hule for contempt against CDP for violating the 2009 Consent Order, the trial court set a hearing at which CDP could have again presented its case. Rather, in lieu of the contempt hearing, CDP again agreed to continue the TRO indefinitely by signing the 2010 Consent Order. And, even further, in the 2010 Consent Order, CDP agreed to comply with all terms of the Initial Restoration Plan, a contractual agreement binding itself to restore its property along the Comite River within specific deadlines. When CDP failed to comply with the Initial Restoration Plan, the LDWF sent it a default letter, filed a motion to enforce the 2010 Consent Order, and a second rule for contempt. In response to all of the LDWF’s above actions, CDP could have had its day t pin court to contest the LSRA’s applicability to its property. Instead, CDP chose to contractually bind itself to extensive restoration obligations of its property.

A consent judgment constitutes a compromise, which is a contract whereby the parties, through concession by one or more of them, settle a dispute or an uncertainty concerning an obligation or other legal relationship, LSA-C.C. art. 3071; Leonard v. Reeves, 11-1009 (La.App. 1 Cir. 1/12/12), 82 So.3d 1250, 1261. A compromise is the law between the parties and must be interpreted according to the parties’ intent. LSA-C.C. art. 2045; Chauvin v. Exxon Mobil Corp., 14-0808 (La. 12/9/14), 158 So.3d 761, 766. The general rules of contract interpretation apply in construing a compromise. Id. When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent. LSA-C.C. art. 2046; Horrigan v. Horrigan, 10-1377 (La. App. 1 Cir. 6/14/11), 70 So.3d 111, 114, writ denied, 11-1596 (La. 10/7/11), 71 So.3d 325.

Here, CDP signed the 2010 Consent Order, which plainly stated that CDP would “comply with all terms and provisions of the Initial Restoration Plan, attached hereto as Exhibit A and made a part of this Order.” In turn, in th¿ Initial Restoration Plan, CDP acknowledged that its site was located on the Comite River’s left descending bank; that its site contained “several dredged pits, roads and other disturbed excavation areas within the immediate floodplain of the Comite River”; and that “[significant alterations to the natural contours of the bank of the Comite River [were] evident and extensive and [required] immediate attention if further damage to the Comite River floodplain ... [was] to be avoided.” CDP agreed to restore three defined restoration areas along the Comite River, by filling, cqntouring, and planting specific vegetation within specified deadlines. Further, CDP agreed to implement appropriate erosion and sediment control measures; to bi-annually control exotic/invasive species growth; to provide monthly reports to the LDWF until contour restoration was complete; to conduct annual vegetative monitoring of each area for five years and to report to the LDWF; and, to notify LDWF of any contour reestablishment or planting, failure. Lastly, CDP agreed to pay stipulated damages should it fail to complete any of the work by the Initial Restoration Plan’s deadlines.

|flCDP’s agreement to comply with the Initial Restoration Plan is clearly and explicitly set forth in the 2010 Consent Order. Further, CDP.’s obligations under the Initial Restoration Plan are also clearly and explicitly set forth and are plainly premised on CDP’s acknowledgment that its property along the Comite River was controlled by the LSRA. The parties’ agreement became the law between them, and CDP cannot now resurrect the defense of the LSRA’s inapplicability after binding itself to the 2010 Consent Order and Initial Restoration Plan. LSA-C.C. art. 2045; see City of Kenner v. Jumonville, 97-125 (La. App. 5 Cir. 8/27/97), 701 So.2d 223, 229, writ denied, 97-2890 (La. 1/30/98), 709 So.2d 718. Further, although CPD asserted below that it would not have signed the 2010 Consent Order had it known the expropriation of its property would not take place, the Initial Restoration Plan does not provide for this alleged resolutory condition. See LSA-C.C. art. 1767. Rather, its explicit terms merely state that the Corps had contacted CDP regarding the Corps’ “desire” to expropriate CDP’s property and that CDP and the LDWF agreed “to meet with the Corps prior to expropriation to determine modifications required to be made to [the Plan].” Thus, the 2010 Consent Order and Initial Restoration Plan make no provision for the nonoccurrence of the expropriation. And, although we note that a consent order may be set aside for a vice of consent, such as error (see LSA-C.C. art. 1948 et seq.), the trial court judgment denied CDP’s motion to set aside the 2010 Consent Order based on mistake of fact. CDP did not raise that issue on appeal and we will not address it.

CONCLUSION

For reasons expressed in this opinion, we affirm the February 24, 2016 judgment (1) denying Comite Dirt Pit, Inc.’s exception of lack of subject matter jurisdiction, failure to exhaust administrative remedies, and action in nullity; (2) denying Comite Dirt Pit, Inc.’s motion to set aside the 2010 Consent Order based on mistake of fact; (3) granting the Louisiana Department of Wildlife and Fisheries’ motion to enforce the 2010 Consent Order; and (4) ordering Comite Dirt Pit, Inc. to restore the subject property as provided in the Initial Restoration Plan, subject to a modification of dates therein. Costs of the appeal are assessed to Comite Dirt Pit, Inc.

AFFIRMED.


source: Caselaw Access Project

author: THERIOT, J.

license: Public Domain

text:
    RICHARDSON WHOLESALE, LLC v. Eugene DIX and Eric Cazaubon
    NO. 2016 CA 0966
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: FEBRUARY 17, 2017

      Gary J. Williams, Slidell, Louisiana, Counsel for Defendant/Appellant, Eric Ca-zaubon
    Anthony J. Milazzo, Jr., Charles V. Gior-dano, Metairie, Louisiana, Counsel for Plaintiff/Appellee, Richardson Wholesale, LLC
    BEFORE: HIGGINBOTHAM, THERIOT, AND CHUTZ, JJ.
   THERIOT, J.

IgThe defendant/appellant, Eric Cazau-bon, seeks review of a judgment rendered by the Twenty-Second Judicial District Court holding him solidarity liable for a debt owed to the plaintiff/appellee, Richardson Wholesale, LLC (Richardson), in the amount of $32,250.00. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On March 17, 2010, Eugene Dix and Eric Cazaubon executed a promissory note in the amount of $32,250.00, plus interest, which states that the undersigned promised to pay Richardson the aforementioned amount. Mr. Dix and Mr. Cazaubon signed the promissory note on two lines at the bottom of the document that do not indicate the capacity in which each signed. Payment on the note was to be made in monthly installments, the first being due on April 17, 2010. Neither Mr. Dix nor Mr. Cazaubon made the required first payment, and ultimately defaulted on the note. Richardson filed a “Petition In Suit On Promissory Note” on October 17, 2013, naming both Mr. Dix and Mr. Cazaubon as defendants and demanding the full $32,250.00, plus interest.

All parties appeared for trial on September 23, 2015. The defendants were present without counsel and requested a continuance from the trial court to obtain counsel. The trial court granted the continuance and reset the trial for October 21, 2015, further advising the defendants that no more continuances would be granted. On October 21, 2015, neither the defendants nor counsel for the defendants appeared in court, notwithstanding the fact that the defendants had been given notice of the trial date at the September 23, 2015 hearing. The trial court ordered the trial to proceed. Richardson submitted testimony and introduced evidence, then submitted the | ¡¡matter to the court. The court rendered judgment as prayed for by Richardson and signed the judgment on November 4, 2015.

On November 12, 2015, Mr. Cazaubon filed a motion for new trial, in which he admitted that he failed to appear for trial, but stated that Mr. Dix had assured him that he (Mr. Dix) would obtain counsel, appear for the trial, and defend Mr. Ca-zaubon in the matter. Mr. Cazaubon further stated in his motion that he did not understand that he was a party in the matter, believing that he signed the promissory note only as a witness to Mr. Dix’s signature. Mr. Cazaubon also included in his motion that Mr. Dix executed the promissory note with Richardson because of NSF checks that Mr. Dix had issued to Richardson, and subsequently promised to pay the debt to Richardson to avoid criminal prosecution.

Hearing on the motion for new trial was held on January 21, 2016. Mr. Cazaubon was present with counsel and was prepared to offer testimony consistent with what he had alleged in his written motion for new trial. The trial court declined to hear Mr. Cazaubon’s testimony and denied the motion for new trial based on Mr. Cazaubon’s failure to appear for trial despite being told by the trial court that no other continuances would be granted, and despite being personally served to appear for trial. Mr. Cazaubon proffered the testimony of Mr. Dix, who testified that he had assured Mr. Cazaubon that he would hire counsel and handle the matter so that Mr. Cazaubon would not have to appear, and that Mr. Cazaubon signed the promissory note as a witness. Mr. Cazaubon also proffered his own testimony, stating that he was not involved with the debt Mr. Dix owed Richardson. The trial court signed the judgment denying Mr. Cazaubon’s motion for new trial on | ¿February 26, 2016. Mr. Cazaubon now appeals the trial court’s judgment on the merits and the judgment on the motion for new trial.

ASSIGNMENTS OF ERROR

Mr. Cazaubon alleges two assignments of error:

1. The trial court erred in signing a judgment casting Mr. Cazaubon as a joint obligor with Mr. Dix on the promissory note after the trial on the merits in which the witness for Richardson testified that Mr. Dix signed as a maker and that Mr. Ca-zaubon signed as a “personal guarantor.”
2. The trial court erred in denying Mr. Cazaubon’s motion for new trial because the judgment rendered was contrary to law and the evidence.

STANDARD OF REVIEW

Under the manifest error standard of review, a factual finding cannot be set aside unless the appellate court finds that it is manifestly erroneous or clearly wrong. Coutee v. Global Marine Drilling Co., 2005-0756 (La. 2/22/06), 924 So.2d 112, 116. When an appellate court finds manifest error, the factual findings of the trier of fact may be reversed. Alexander v. Pellerin Marble & Granite, 93-1698 (La. 1/14/94), 630 So.2d 706, 710.

DISCUSSION

Trial on the Merits

The signature lines on the note contain the signatures of Mr. Dix and Mr. Cazaubon. The capacity in which they signed is not included on or near the signature line. However, the note itself states that “the undersigned promises to pay” the relevant debt. A contract must be interpreted in a common-sense fashion, according to the words of the contract in their common and usual significance. Clovelly Oil Co., LLC v. Midstates Petroleum Co., LLC, 2012-2055 (La. 3/19/13), 112 So.3d 187, 192. Words of a contract must be given their generally prevailing meaning. La. C.C. art. U2047. When the words of a contract are clear and explicit and lead to no absurd consequences, no further explanation may be made in search of the parties’ intent. La. C.C. art. 2046.

In the present case, the language of the promissory note is clear. It states “the undersigned agree to pay.” It is clear the undersigned is Mr. Dix and Mr. Cazaubon. No further evidence is needed to interpret the four comers of the document. Therefore, from a plain reading of the document, Mr. Dix and Mr. Cazaubon are obligated to pay the debt to Richardson.

The promissory note was properly identified and admitted into evidence. Once the note was accepted into evidence, the burden shifted to the defendant to prove any affirmative defenses. Long v. Long, 2004-938, (La. App. 5 Cir. 1/25/05), 895 So.2d 34, 39. Mr. Cazaubon failed to properly raise any defense at the trial of this matter. The record reflects Mr. Cazaubon failed to appear after being properly served and notified of the trial date. Such action, or lack of action, lies solely at the feet of Mr. Cazaubon. We find that the trial court did not err in its interpretation of the promissory note.

Motion for New Trial

In his motion for new trial, Mr. Cazaubon asked the court to grant him an opportunity to present his defense. A new trial may be granted if there are good grounds to do so. La.C:C.P. art. 1973. A trial court has much discretion in determining whether to grant a motion for new trial. Brown v. Hudson, 96-2087 (La.App. 1 Cir. 9/19/97), 700 So.2d 932, 935, writ denied, 97-2623 (La. 1/9/98), 705 So.2d 1103, cert. denied, 524 U.S. 916, 118 S.Ct. 2297, 141 L.Ed.2d. 157 (1998). In the instant case, Mr. Cazaubon was granted a continuance to allow him to hire counsel prior to trial. The trial court informed Mr. Cazaubon that no other continuances would be granted. Despite the trial court’s admonition and also being properly notified of the | atrial date, Mr. Cazaubon failed to appear for trial. We find these circumstances to be well within the trial court’s discretion for denying Mr. Cazaubon’s motion for new trial.

DECREE

The judgment of the Twenty-Second Judicial District Court, holding Eugene Dix and Eric Cazaubon liable to Richardson Wholesale, L.L.C. in the amount of $32,250.00, plus interest, is affirmed. The judgment denying Eric Cazaubon’s motion for new trial is also affirmed. All costs of this appeal are assessed to Eric Cazaubon.

AFFIRMED.

      . The trial judge was absent from the bench when the testimony of Mr. Dix and Mr. Ca-zaubon was proffered.

      . Mr. Dix is not a party in the present appeal.


text:
    CITY OF DONALDSONVILLE v. Vince DIEZ
    2016 CA 0968
    Court of Appeal of Louisiana, First Circuit.
    FEBRUARY 17, 2017

      Charles S, Long, Donaldsonville, Louisiana Attorney for Plaintiff/Appellee City of Donaldsonville
    Robert V. McAnelly, Baton Rouge, Louisiana Attorney for DefendanVAppellant Vince Diez
    BEFORE: PETTIGREW, McDonald, and calloway , jj.

       Judge Curtis A. Calloway, retired, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

   McDonald, J.

12In this case, the defendant, Vince Diez, appeals a judgment against him and in favor of the City of Donaldsonville, awarding the City of Donaldsonville $10,592.50 in damages with interest and costs, and recognizing its lien and privilege on Lot 56 on Nolan Avenue, and decreeing that the property be sold and the judgment be paid from the proceeds of the sale by priority over all other creditors of Mr. Diez.

FACTS AND PROCEDURAL HISTORY

The City of Donaldsonville filed a petition to enforce its hen on April 30, 2014, asserting that Mr. Diez owed it $10,592.50 for the demolition and removal of a dilapidated and dangerous structure on Lot 56. The City of Donaldsonville averred that it had notified Mr. Diez of the dilapidated and dangerous condition of the structure on the property and had ordered him to show cause at a Donaldsonville City Council meeting why the structure should not be demolished. After the City Council meeting, the City Council determined that the structure should be demolished within 30 days and sent Mr. Diez notification of that determination. The City of Donaldson-ville maintained that after Mr. Diez failed to comply with the orders of the Donaldson City Council to demolish the structure, the City of Donaldsonville demolished and removed the structure. Thereafter, the City of Donaldsonville filed a lien on Lot 56 for reimbursement of the cost, but averred that payment had not been made.

The City of Donaldsonville maintained that Mr. Diez had received an accounting of the amount due and had failed after 30 days to pay the amount due, and thus was also liable for reasonable attorney fees. The City of Donaldsonville asked for recognition and enforcement of the privilege on the property, that the property in due course be seized and sold in order to satisfy the claim in priority to other claims, for costs of the proceedings, and for all other legal or equitable relief.

|aMr. Diez answered the petition, asserting that he was not the owner of the property, because although he had purchased the property at a tax sale he had not taken possession of the property, and because he had not taken any steps to perfect title to the property by way of a monition, suit to quiet tax title, or other means. Mr. Diez maintained that he had no legal obligation to pay for the cost of demolition of property to which his title was never perfected. Mr. Diez averred that he had offered any interest he had in the property to the City of Donaldsonville in exchange for a release from any claims regarding to property, but that the City of Donaldsonville had refused his offer. He asked that the City of Donaldsonville’s claims against him be dismissed at its cost.

After a hearing, the district court ruled in favor of the City of Donaldsonville and against Mr. Diez, awarding $10,592.50 in damages, with interest and costs, to the City of Donaldsonville, ordering that its lien and privilege on the property be recognized, that the property be sold, and that the judgment be paid from the proceeds of the sale by priority over other creditors. Mr. Diez has appealed that judgment.

THE APPEAL

In his appeal, Mr. Diez maintains that the trial court erred in granting a judgment in favor of the City of Donaldsonville holding him personally responsible for an in rem obligation. Mr. Diez maintains that Lot 56 and all of its improvements were adjudicated to the City of Donaldsonville by the tax collector for the City of Donald-sonville prior to the conveyance of a tax sale certificate to him by the Sheriff of Ascension Parish. Thus, he avers that he did not acquire any rights to Lot 56 at the June 9,2009 Ascension Parish Sheriffs tax sale.

Further, Mr. Diez maintains that he never took physical possession of Lot 56, as he never sought civil possession of the lot, never brought a monition proceeding, and never filed suit to quiet title to Lot 56. Therefore, he asserts that 14he had only an inchoate interest in Lot 56 and only in rem obligation, and he could not be held liable for the City of Donaldsonville’s demolition costs. Further, he maintains that Cleveland LeBlanc, Jr., only owned a 50 percent interest in Lot 56, therefore, only that 50 percent interest could have been affected by the Ascension Parish Sheriffs issuance of a tax sale certificate, so that the most he can be liable for is 50 percent of the City of Donaldsonville’s demolition costs.

ANALYSIS

The record shows that unpaid taxes on Lot 56 in the City of Donaldsonville were owed to both the City of Donaldsonville and to Ascension Parish (two separate taxing authorities) in 2009, The record owner of the property was Cleveland LeBlanc, Jr.

The Tax Collector for the City of Don-aldsonville seized and attempted to sell Lot 56 at public auction on May 18, 2009, and there were no bids on the property. Thereafter on May 20, 2009, having failed to sell the property at public bid, the Tax Collector for the City of Donaldsonville adjudicated Lot 56 to the City of Donald-sonville. This transfer of the title to Lot 56 from Cleveland LeBlanc, Jr., to the City of Donaldsonville was recorded in the Ascension Parish Clerk of Court’s conveyance records on May 22, 2009.

The record also shows that beginning on May 27, 2009, and each successive legal day afterward, the Sheriff of Ascension Parish offered Lot 56 for sale at public auction to satisfy taxes owed on the property to Ascension Parish. Mr. Diez purchased the property at public auction on June 9, 2009, for taxes due, interest, and fees totaling $253.45. This sale document was recorded in the Ascension Parish conveyance records on June 9,2009.

An instrument involving immovable property shall have effect against third persons only from the time it is filed for registry in the parish where the property is located. La. C.C. art. 1839. The public records doctrine is founded upon our | ^Public policy and social purpose of assuring stability of land titles. The primary focus of the public records doctrine is the protection of third persons against unrecorded interests. Cimarex Energy Co. v. Mauboules, 2009-1170 (La. 4/9/10), 40 So.3d 931, 943-44. A third person is a person who is not a party to or personally bound by an instrument. La. C.C. art. 3343.

The adjudication of Lot 56 to the City of Donaldsonville by the Tax Collector for the City of Donaldsonville had effect against third parties on May 22, 2009, after it was recorded in the conveyance records for Ascension Parish. Thus, the Parish of Ascension could not sell Lot 56 on June 9, 2009 to Mr. Diez in order to satisfy the property tax bill of Mr. Le-Blanc when Lot 56 had already been adjudicated to the City of Donaldsonville, and the adjudication had been recorded in the conveyance records for Ascension Parish. The sale of a thing belonging to another does not convey ownership. La. C.C. art. 2452.

Therefore, the June 9, 2009 tax sale of Lot 56 by the Sheriff of Ascension Parish to Vince Diez was a nullity. Nullity may be raised at any time as a defense against an action on the contract. La. C.C. art. 2032. Mr. Diez has raised the defense of nullity of the tax sale of Lot 56 to him from the Sheriff of Ascension Parish, asking that the judgment against him by the City of Donaldsonville for reimbursement of costs for demolition of the house on Lot 56 be reversed, and we have found that his defense is well-founded.

CONCLUSION

Thus, for the foregoing reasons, the trial court judgment against -Vince Diez and in favor of the City of Donaldsonville in the amount of $10,592.50, with legal ^interest from date of demand and costs, is reversed. The costs of this appeal, in the amount of $1,642.89, are assessed against the City of Donaldsonville.

REVERSED.

      . Therefore, the City of Donaldsonville filed a tax lien against its own property. When the qualities of obligee and obligor are united in the same person, the obligation is extinguished by confusion. La. C.C. art. 1903.

      . Having found that the sale of Lot 56 to Mr. Diez was a nullity, we need not address the other issues raised by Mr. Diez in his appeal.


text:
    Lindsey J. MOLINERE v. Junius J. LAPEYROUSE, et al
    NO. 2016 CA 0991
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: FEBRUARY 17, 2017

      Paul A. Lapeyrouse, Chauvin, Louisiana, Counsel for Appellant, Donald Normand
    Danna E. Schwab, Estelle E. Mahoney, Patricia Reeves Floyd, Houma, Louisiana, Counsel for Appellees Teresa R. Molinere Leone, Nancy Sue Molinere Chaisson, Mary B. Molinere Domangue, Mary Ellery Molinere Domangue, Al Lindsey Molinere, Joseph Easton Molinere, Joseph Patrick Molinere, and Terry W. Molinere
    BEFORE: HIGGINBOTHAM, THERIOT, AND CHUTZ, JJ.
   THERIOT, J.

LThe appellant, Donald Normand, seeks review of a judgment rendered in favor of the appellees, Teresa R. Molinere Leone, Nancy Sue Molinere Chaisson, Mary B. Molinere Domangue, Mary Ellery Molin-ere Domangue, Al Lindsey Molinere, Joseph Easton Molinere, Joseph Patrick Molinere, and Terry W. Molinere (collectively “the Molineres”), sustaining the Mol-ineres’ several exceptions, ordering the dismissal of Mr. Normand’s petition for declaratory judgment, and granting the Molineres’ request for sanctions. For the following reasons, we amend the judgment, and we affirm as amended.

FACTS AND PROCEDURAL BACKGROUND

This appeal has a complicated factual and procedural history involving two consolidated lawsuits, dozens of parties, and proceedings spanning the course of over three decades. In October of 1985, the Molineres’ father, Lindsey J. Molinere, filed the first lawsuit at issue on appeal. Mr. Molinere filed suit against twenty named defendants seeking to be recognized as the owner of a certain 3.348-acre tract of immovable property located in Terrebonne Parish, Louisiana (“the subject property”). Mr. Molinere’s petition was assigned to Division “E,” which was then presided over by Judge Paul R. Wim-bish, under docket no. 81,266. The first lawsuit remained actively pending through the early 1990s, when Mr. Molinere entered into a consent agreement with four of the named defendants, the Estate of J. Louis Watkins, and his heirs; Frank Wur-zlow, Jr.; Rhea St. Martin; and Rita La-peyrouse Talbot. The signatory defendants agreed to convey, abandon, and deliver whatever rights they had in the ^subject property to Mr. Molinere. On May 12, 1993, Judge Wimbish signed a consent judgment in accordance with the consent agreement. Following entry of the consent judgment, there were no further proceedings in the first lawsuit involving any of the original parties.

Approximately twenty years later, in February of 2013, Mr. Normand’s wife, Melanie Normand, filed the second lawsuit at issue on appeal. Mrs. Normand filed suit against the Molineres seeking injunctive relief and seeking to establish ownership of the subject property and/or the property adjacent to the subject property. Mrs. Normand’s petition was assigned to Division “A,” presided over by Judge George J. Larke, Jr., under docket no. 168,766. Mrs. Normand claimed that her deceased grandfather, Junius J. Lapeyrouse, was a named defendant in the first lawsuit. Mrs. Normand alleged that she was the successor-in-interest to Mr. Lapeyrouse and that the Molineres were the successors-in-interest to Mr. Molinere. Mrs. Normand claimed that Mr. Lapeyrouse was not a party to the consent judgment and had never been divested of his rights in the subject property. Mrs. Normand therefore claimed that she enjoyed a right and interest in the subject property, and she sought, amongst other things, to enjoin the Molineres from interfering with her lawful use of the property.

In pertinent part, on June 20, 2013, during the pendency of the second lawsuit filed by Mrs. Normand, the parties appeared before Judge Larke for a hearing, whereupon counsel for Mrs. Normand orally moved that the two lawsuits be consolidated. Judge Larke agreed that the two lawsuits should be consolidated and directed counsel to prepare a judgment of consolidation. On July 9, 2013, Judge Larke signed an order which, amongst other things, ordered that Melanie Normand v. Teresa R. Molinere, et al., docket no. |4168,766, be consolidated with Lindsey J. Molinere v. Junius J. Lapeyrouse, et al., docket no. 81,266.

Thereafter, all proceedings relating to the second lawsuit were heard before Division “E,” now presided over by Judge Randall L. Bethancourt. Following various other matters that are not at issue in this appeal, on April 11, 2014, Judge Bethanc-ourt held a hearing on the Molineres’ exceptions to Mrs. Normand’s petition, which included exceptions of res judicata, no right of action, and no cause of action. In open court, Judge Bethancourt granted the exceptions and directed counsel for the Molineres to prepare a final judgment. On April 22, 2014, Judge Bethancourt signed a written judgment in accordance with his oral ruling, sustaining the various exceptions and ordering the dismissal of Mrs. Normand’s suit against the Molineres.

Six days later, on April 28, 2014, Mr. Normand filed a motion to dismiss the first lawsuit on the ground of abandonment as an “interested party.” Mr. Normand submitted that no parties had taken a step in the prosecution or defense of the matter since May 12, 1993, i.e., the date Judge Wimbish signed the consent judgment. The following day, on April 29, 2014, Mrs. Normand filed a motion for new trial on the exceptions in the second lawsuit. Judge Bethancourt held a joint hearing on the motions, and, on June 13, 2014, signed a judgment denying Mr. Normand’s motion to dismiss the first lawsuit on the ground of abandonment and denying Mrs. Normand’s motion for new trial in the second lawsuit.

On September 5, 2014, Mr. Normand filed a petition for declaratory judgment against the Molineres bearing the docket number of the first lawsuit (docket no. 81,266). In his petition, Mr. Normand stated that Mr. Molinere had filed the original petition in the. suit in October of 1985; that a consent judgment had been filed in the record in May of 1993; and that, | ¿more recently, “considerable controversy” had arisen regarding the parties’ ownership interests in the subject property. Mr. Normand therefore prayed for a declaratory judgment “clarifying the parties’ ownership interest in the tract of land which is the subject of this suit[,]” as well as “[a]ll general and equitable relief.”..

The Molineres answered Mr. Normand’s petition and filed declinatory exceptions of insufficiency of citation, insufficiency of service of process, including failure to request service of citation on the defendant, and failure to request service of petition; dilatory exceptions of want of amicable demand, unauthorized use of summary proceeding, nonconformity of the petition with any of the requirements of La. C.C.P. art. 891, vagueness or ambiguity of the petition, lack of procedural capacity, and improper joinder of parties; and peremptory exceptions of res judicata, nonjoinder of a party, no cause of action, , and no right of action or interest to institute the suit. In their answer, the Molineres requested that Mr. Normand be assessed with all costs and reasonable attorney fees incurred in defense of the matter.

On February 4, 2015, Mr. Normand filed an amended and supplemental petition for declaratory judgment against the Molin-eres. In his amended petition, Mr. Normand described the subject property with particularity through .incorporation of the description of the property first provided by Mr. Molinere in the first lawsuit In addition, Mr. Normand restated the allegations, set forth in Mr. Molinere’s original petition, and he repeated his prayer for a declaratory judgment “clarifying the parties’ ownership interests in ‘the property’ which is the subject of this suit[,]” and for “[a]ll general and equitable relief.”

The Molineres answered Mr. Normand’s amended petition and resubmitted the aforementioned several exceptions. In their answer, the |flMoIineres specifically prayed that Mr. Normand and/or his counsel be sanctioned pursuant to La. C.C.P. art. 863 for “repeated filings of pleadings, including this latest, as well as other pleadings filed the past two years in the consolidated cases ... that have repeatedly failed to follow proper Louisiana law of procedure and substance[.]” Mr. Normand opposed the exceptions and request for sanctions.

On June 26, 2015, the parties appeared before Judge Bethancourt for a hearing on the Molineres’ exceptions and request for sanctions, whereupon the parties agreed to submit the matter for consideration on the briefs without the necessity of oral argument. On July 10, 2015, Judge Bethancourt signed a judgment sustaining the several exceptions, dismissing Mr. Normand’s petition for declaratory judgment, and granting the Molineres’ request for sanctions. The trial court ordered Mr. Normand to pay $5,940.00 in attorney fees and $956.70 in costs to counsel for the Molineres.

Mr. Normand timely filed a motion for new trial. Mr. Normand argued that the trial court’s judgment was contrary to the evidence, and he submitted that the Molin-eres had improperly amended their request for sanctions by adding a claim for fees and costs in a hasty and confusing manner at trial. Judge Bethancourt held a hearing on the motion for new trial, and, on October 5, 2015, signed a judgment denying the motion for new trial and ordering Mr. Normand to bear all costs associated with the motion. Mr. Normand now appeals.

ASSIGNMENTS OF ERROR

Mr. Normand raises the following assignments of error:

|71. The trial court erred by refusing to construe its own judgment.
2. The trial court erred by refusing to issue a declaratory judgment construing its own judgment.
8. The trial court erred by sustaining the Molineres’ exceptions.
4. The trial court erred by dismissing Mr. Normand’s petition for declaratory judgment.
5. The trial court erred by imposing egregious and punitive sanctions for attorney fees and costs that effectively barred Mr. Normand from seeking any remedy with the trial court.
6. The trial court erred by failing to articulate its own reasons for refusing to construe its own judgment.
7. The trial court erred by failing to state the authority under which the sanctions were imposed.

DISCUSSION

Declaratory Judgment

In his first, second, third, and fourth assignments of error, taken together, Mr. Normand argues that the trial court erred in refusing to render a declaratory judgment. Mr. Normand suggests that the trial court abused its discretion in declining to construe its own consent judgment, and he avers that the trial court erred in sustaining the several exceptions and dismissing his petition for declaratory judgment.

Louisiana Code of Civil Procedure art. 1871 sets forth the scope of a declaratory judgment:

Courts of record within them respective jurisdictions may declare rights, status, and other legal relations whether or not further relief is or could be claimed. No action or proceeding shall be open to objection on the ground that a declaratory judgment or decree is prayed for; and the existence of another adequate remedy does not preclude a judgment for declaratory relief in cases where it is appropriate. The declaration shall have the force and effect of a final judgment or decree.

Louisiana Code of Civil Procedure art. 1872 designates who can bring an action for declaratory judgment:

|SA person interested under a deed, will, written contract or other writing constituting a contract, or whose rights, status, or other legal relations are affected by a statute, municipal ordinance, contract or franchise, may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract, or franchise and obtain a declaration of rights, status, or other legal relations thereunder.

The purpose of the declaratory judgment articles of the Louisiana Code of Civil Procedure is to settle and afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations, and they are to be liberally construed and administered. La. C.C.P. art. 1881; Blanchard v. Blanchard, 12-0106 (La.App. 1 Cir. 12/31/12), 112 So.3d 243, 255, writ denied, 13-0488 (La. 4/12/13), 111 So.3d 1013. We review a trial court’s decision to grant or deny a declaratory judgment under the “abuse of discretion” standard of review. Mai v. Floyd, 05-2301 (La.App. 1 Cir. 12/6/06), 951 So.2d 244, 245, writ denied, 07-0581 (La. 5/4/07), 956 So.2d 619.

The filing of a petition for declaratory judgment does not automatically entitle a petitioner to declaratory judgment relief. In re Melancon, 05-1702 (La. 7/10/06), 935. So.2d 661, 665. Louisiana Code of Civil Procedure art. 1876 states that a trial court may refuse to render a declaratory judgment or decree if such judgment or decree would not terminate the uncertainty or controversy giving rise to thé proceeding. Moreover, there must exist a concrete, justiciable controversy framing the facts in order to avoid the rendering of an advisory opinion. Peterson v. Louisiana Public Service Comm’n, 94-2478 (La.App. 1 Cir. 10/6/95), 671 So.2d 460, 461.

In the context of a petition for declaratory judgment, a “justiciable controversy” connotes an existing actual and substantial dispute, as distinguished from one that is merely hypothetical or abstract, and a dispute Rwhich involves the legal relations of parties with real adverse interests, upon which the judgment of the court may effectively operate through a decree of conclusive character. Abbott v. Parker, 259 La. 279, 249 So.2d 908, 918 (1971). The petitioner must have a legally protectable and tangible interest in the suit, and the dispute presented should be of sufficient immediacy and reality, in order to warrant the issuance of a declaratory judgment. Id.

The justiciable controversy requirement is related to the exceptions of no right of action and no cause of action, insofar as “there is no right or 'cause of action [for declaratory judgment] when there is no justiciable controversy.” Ricard v. State, 544 So.2d 1310, 1312 (La. App. 4 Cir. 1989) (citing Abbott, supra).

In the case at bar, we find that Mr. Normand lacks a legally protectable and tangible interest in the subject matter of the suit necessary to warrant the issuance of a declaratory judgment. Mr. Normand requested the trial court render a declaratory judgment clarifying the parties’ ownership interests in the subject property on the basis that controversy had arisen concerning the ownership of the property. However, unlike his wife, who claimed a right and interest in the subject property in the second lawsuit as the heir of Mr. Lapeyrouse, Mr. Normand did not assert any personal right or ownership interest in the subject property. Mr. Normand was not a party to the first lawsuit, nor did he appear in the quality of a successor-in-interest to any of the original parties to the first lawsuit. The mere existence of a dispute concerning the ownership of the subject property does not constitute a concrete and particularized invasion of a legally protectable interest, vis-á-vis Mr. Normand, sufficient to maintain his petition for declaratory judgment. Since this case does not present a justiciable controversy, the trial court did not err in sustaining the exceptions of no right of action and no | mcause of action. Having found that the trial court did not err in dismissing the petition for declaratory judgment on this basis, we -pretermit consideration of the several remaining exceptions.

Sanctions

In his fifth, sixth, and seventh assignments of error, taken together, Mr. Normand argues that the trial court erred in sanctioning him pursuant to La. C.C.P. art. 863. Mr. Normand contends .that the sanctions were egregious and punitive, and he further avers that the trial court failed to explain the basis for the sanctions imposed against him.

Louisiana Code of Civil Procedure art. 863 provides:

A.Every pleading of a party represented by an attorney shall be signed by at least one attorney of record in his individual name, whose address shall be stated. A party who is not represented by an attorney shall sign his pleading and state his address.
B. Pleadings need not be verified or accompanied by affidavit or certificate, except as otherwise provided by law, but the signature of an attorney or party shall constitute a certification by him that he has read the pleading, and that to the best of his knowledge, -information, and belief formed after reasonable inquiry, he certifies all of the following:
(1) The pleading is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation.
(2) Each claim, defense, or other legal assertion in the pleading is warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law.
(3) Each allegation or other factual assertion in the pleading has evidentiary support or, for a specifically identified allegation or factual assertion, is likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.
| n(4) Each denial in the pleading of a factual assertion is warranted by the evidence or, for a specifically identified denial, is reasonably based on a lack of information or belief.
C. If a pleading is not signed, it shall be stricken unless promptly signed after the omission is called to the attention of the pleader.
D. If, upon motion of any party or upon its own motion, the court determines .that a certification has been made in violation of the provisions of this Article, the court shall impose upon the person who made the certification or the represented party, or both, an appropriate sanction which may include an order to pay to the other party the amount of the reasonable expenses incurred because of the filing of the pleading, including reasonable attorney fees.
E. A sanction authorized in Paragraph D shall be imposed only after a hearing at which any party or his counsel may present any evidence or argument relevant to the issue of imposition of the sanction.
F. A sanction authorized in Paragraph D shall not be imposed with respect to an original petition which is filed within sixty days of an applicable prescriptive date and then voluntarily dismissed within ninety days after its filing or on the date of a hearing on the pleading, whichever is earlier.
G. If the court imposes a sanction, it shall describe the conduct determined to constitute a violation of the provisions of this Article and explain the basis for the sanction imposed.

Louisiana Code of Civil Procedure art. 863 imposes an obligation upon litigants and their attorneys to make an objectively reasonable inquiry into the facts and law. Carrollton Presbyterian Church v. Presbytery of S. La. of Presbyterian Church (U.S.A.), 14-1214 (La.App. 1 Cir. 3/9/15), 172 So.3d 1, 8, writ denied, 15-0682 (La. 5/22/15), 171 So.3d 257. The article does not empower a trial court to impose sanctions simply because a particular argument or ground for relief is found to be unjustified; the failure to prevail does not trigger an award of sanctions. Id. Article 863 is intended to be used only in exceptional circumstances, Carrollton Presbyterian Church, 172 So.3d at 8, and endeavors to strike a balance between the need to curtail abuse of the legal system and the need to encourage creativity and | ^vitality in the law. Lafourche Parish Council v. Breaux, 02-1565 (La.App. 1 Cir. 5/9/03), 845 So.2d 645, 648.

In an appeal from a judgment imposing sanctions against a litigant under La. C.C.P. art. 863, we apply two distinct standards of review. The trial court’s factual finding of a violation of La. C.C.P. art. 863 is reviewed under the “manifest error” or “clearly wrong” standard of review. See Lafourche Parish Council, 845 So.2d at 648. The trial court’s determination of the type and/or amount of sanctions awarded is reviewed under the “abuse of discretion” standard of review. See Slaughter v. Bd. of Sup’rs of Southern University & Agr. & Mech. College, 10-1114 (La.App. 1 Cir. 8/2/11), 76 So.3d 465, 469-70, writ denied, 11-2112 (La. 1/13/12), 77 So.3d 970.

In the case at bar, we first find that the trial court did not commit manifest error in sanctioning Mr. Normand. Pursuant to La. C.C.P. art. 863(G), the trial court was required to describe the sanctionable conduct and explain the basis for the sanctions awarded. Although the trial court did not issue its own written reasons for judgment, in the judgment granting the exceptions and request for sanctions, the trial court stated: “[T]he exceptions and request for sanctions are well-taken and should be GRANTED ... for reasons ex-ceptors assigned in brief and attached hereto, which the Court adopts as its reasons.” (emphasis in original). The trial court attached to its judgment a copy of the Molineres’ memorandum in support of their exceptions to Mr. Normand’s amended petition and request for sanctions.

In the memorandum, the Molineres argued that Mr. Normand should be sane-tioned for his “repeated unbased and deficient filings....” The Molineres set forth the lengthy procedural history of the dispute, including) 1S the various pleadings submitted by Mr. Normand and his wife, Mrs. Normand, as well as the costs incurred by them in the defense of the matter. The Molineres specifically pointed out, inter alia, that Mr. Normand’s original and amended petition failed to name any defendants, failed to plead a cognizable cause of action, failed to establish standing, and addressed the same central issues previously adjudicated in the second lawsuit filed by Mrs. Normand.

Initially, we caution that the failure to state a cognizable right or cause of action does not automatically trigger an award of sanctions under La. C.C.P. art. 863. Moreover, we recognize that the memorandum adopted as reasons for judgment does not reflect the trial court’s “inner thoughts.” See and compare Carrollton Presbyterian Church, 172 So.3d at 6-7 (recognizing the tenuous “real value” of written reasons for judgment prepared by counsel, but declining to reject these reasons where there was evidence in the record to support same). However, when considered along with the other evidence in the record, the memorandum provides a reasonable factual basis to support the trial court’s imposition of sanctions against Mr. Normand.

Specifically, the memorandum indicates the trial court may have reasonably concluded Mr. Normand violated La. C.C.P. art. 863(B)(1) by filing the motion to dismiss on the ground of abandonment and the original and amended petition without proper purpose. Likewise, the tidal court may have reasonably concluded Mr. Normand violated La. C.C.P. art. 863(B)(2) by submitting various claims and legal assertions unwarranted by existing law or by a nonfriviolous argument for the extension, modification, or reversal of existing law. The needless perpetuation and/or continued and unmerited pursuit of litigation establishes a proper basis to support theju imposition of sanctions against a litigant. See Koussanta v. Dozier, 16-45 (La.App. 5 Cir. 5/26/16), 196 So.3d 60, 66-67, writ denied, 16-1214 (La. 9/6/16), 205 So.3d 917; Acosta v. B & B Oilfield Services, Inc., 12-122 (La.App. 3 Cir. 6/6/12), 91 So.3d 1263, 1268. Thus, we cannot say that the trial court manifestly erred in sanctioning Mr. Normand.

Although the trial court did not err in sanctioning Mr. Normand, we are nevertheless constrained to conclude that the trial court’s award of sanctions constitutes an abuse of discretion. Louisiana Code of Civil Procedure art. 863(D), as quoted above, authorizes an award of sanctions which may include an order to pay to the other party “the amount of the reasonable expenses incurred because of the filing of the pleading, including reasonable attorney fees.” Generally speaking, an award of attorney fees and costs under La. C.C.P. art. 863 is penal in nature and, as such, must be strictly construed. See SWC Services, LLC v. Echelon Const. Services, LLC, 10-1113 (La.App. 1 Cir. 2/11/11), 56 So.3d 1254, 1257.

Four factors have evolved that must be considered in arriving at an appropriate sanction award, including: 1) the conduct being punished or sought to be deterred by this sanction; 2) the expenses or costs caused by the violation of the rule; 3) whether the costs or expenses are “reasonable” as opposed to self-imposed, miti-gatable, or the result of delay in seeking court intervention; and 4) whether the sanction is the least severe sanction adequate to achieve the purpose of the rule under which it was imposed. Cloud v. Barnes, 47,764 (La.App. 2 Cir. 4/17/13), 116 So.3d 67, 75-76, writ denied, 13-1304 (La. 9/27/13), 122 So.3d 1006.

In the memorandum adopted as reasons for judgment by the trial court, the Molin-eres alleged that they had “incurred court costs just since [retaining counsel] of almost $1,000.00, and attorney fees ... in excess of |1fi$5,000.00.... ” In support of their request for attorney fees and costs, the Molineres provided an affidavit and comprehensive billing statement from the secretary for their attorneys. The secretary testified that the Molineres had incurred total costs in the amount of $6,896.70, which represented the sum of $5,940.00 in attorney fees and $956.70 in court costs. The trial court accepted the evidence offered by the Molineres and ordered Mr. Normand to pay $6,896.70 in sanctions to the Molineres’ attorneys.

The memorandum and billing statement make it clear that the Molineres requested and were awarded reimbursement for all costs and fees incurred by them in defense of the entire dispute beginning in October of 2013; that is, the Molineres were reimbursed not only for those costs incurred in defense of the sanctionable pleadings filed by Mr. Normand in the first lawsuit, but also for those costs incurred in defense of the second lawsuit filed by Mrs. Normand. The trial court therefore failed to differentiate between the separate and distinct pleadings in sanctioning Mr. Normand and, in doing so, failed to arrive at an appropriate award based upon the conduct being punished and the expenses and costs incurred as a result of the violation of La. C.C.P. art. 863.

Consequently, we find that the trial court abused its discretion in sanctioning Mr. Normand in the sum of $6,896.70, and we reduce the total sanctions award to $2,303.76. The amended award encompasses those costs and attorney fees incurred by the Molineres after April 28, 2014, the date Mr. Normand filed the motion to dismiss the first lawsuit on the ground of abandonment. The amended award excludes $4,342.94 in costs and fees incurred in the defense of the second lawsuit filed by Mrs. Normand. The amended award also excludes $250.00 in attorney fees Mr. Normand was ordered to pay in the June 16, 2014 judgment denying his motion to dismiss w the first lawsuit on the ground of abandonment, which exclusion is necessary to avoid rendering a duplicative award of attorney fees. See generally Advanced Quality Construction, Inc. v. Amtek of La., Inc., 16-0359 (La.App. 1 Cir. 10/28/16), 2016 WL 6330424, *5 (unpublished) (“Attorney’s fees that are duplica-tive are not reasonable and are disallowed under Louisiana law.”).

Finally, we must address herein the decretal language of the trial court’s judgment, which ordered Mr. Normand to pay the sanctions award “to The Schwab Law Firm.” Louisiana Code of Civil Procedure art. 863(D) affords the trial court with the option of imposing the sanction on the person who made the certification or the represented party, or both, but restricts payment of the sanction to the other party or parties. Green v. Wal-Mart Store No. 1163, 96-1124 (La.App. 4 Cir. 10/17/96), 684 So.2d 966, 968. Accord SWC Services, LLC, 56 So.3d at 1257. Thus, the trial court patently erred in directing that the sanctions be made payable to counsel for the Molineres, and we amend the trial court’s judgment to provide that the sanctions be made payable to the Molineres, as movants on the request for sanctions against Mr. Normand.

Additional Award of Attorney Fees

In their appellate brief, the Molin-eres request this court award them additional attorney fees and costs for the work associated with answering and defending this appeal. Additional attorney fees are usually awarded on appeal when a party appeals, obtains no relief, and the appeal has necessitated additional work on the opposing party’s counsel, provided that the opposing party appropriately requests an increase. Namias v. Sunbelt Innovative Plastics, LLC, 15-1380 (La.App. 1 Cir. 2/24/16), 190 So.3d 745, 757, writ denied, 16-0482 (La. 5/2/16), 212 So.3d 1168, 2016 WL 7714794 (citing Quick v. Terrebonne Gen. Med. Ctr., 09-1101 (La.App. 1 Cir. 2/10/10), 35 So.3d 287, 290-91). Here, the Molineres failed to follow proper appellate procedure in submitting their request for an award of additional attorney fees, since they did not appeal the trial court’s judgment or answer Mr. Normand’s appeal. See La. C.C.P. art. 2133; Starr v. Boudreaux, 07-0652 (La.App. 1 Cir. 12/21/07), 978 So.2d 384, 392. Thus, the Molineres are not entitled to an increase in attorney fees for defending this appeal. See Brown v. Harmony, L.L.C., 05-0747 (La.App. 1 Cir. 3/24/06), 934 So.2d 99, 101-02.

DECREE

For the foregoing reasons, we amend the trial court’s July 10, 2015 judgment to reduce the sanctions award to $2,303.76, which sum shall be made payable to the appellees, Teresa R. Molinere Leone, Nancy Sue Molinere Chaisson, Mary B. Molinere Domangue, Mary Ellery Molin-ere Domangue, A1 Lindsey Molinere, Joseph Easton Molinere, Joseph Patrick Molinere, and Terry W. Molinere. In all other respects, the trial court’s judgment is affirmed. All costs of this appeal are assessed to the appellant, Donald Normand.

AMENDED; AFFIRMED AS AMENDED.

      . The following individuals and/or entities were named as defendants in the first lawsuit: Junius J. Lapeyrouse; the Estate of Wilfred J. King, and his heirs; Furoiland Corporation; the Estate of J. Louis Watkins, and his heirs; Huge Paul St. Martin, Jr.; Rhea M. St. Martin; Trust Estate of Roy J. St. Martin; Roy J. St. Martin, Jr.; Eugene C. St. Martin; Roy J. St. Martin, Inc.; Earl Lapeyrouse; Rene La-peyrouse; Lucille Lapeyrouse Allen; Estelle Lapeyrouse Chauvin; Irene Lapeyrouse Pahlke; Rita Mae Lapeyrouse Talbot; Theodore Lapeyrouse; Gwinette Lapeyrouse Pi-cou; Glynn Paul Lapeyrouse; and Frank Wurzlow, Jr.

      . Mr. and Mrs. Normand were represented by the same attorney.

      . The sole matters reviewable in this appeal are those issues adjudicated in the trial court’s judgments signed on July 10, 2015 and October 5, 2015. The record indicates that Judge Bethancourt signed a supplemental judgment granting the Molineres additional sanctions on December 9, 2015. However, this judgment is not before us on appeal, since Judge Bethancourt signed the order granting Mr. Normand a devolutive appeal several days earlier, on December 2, 2015.

      . Because Mr. Normand has already been permitted to amend his petition in order to set forth facts sufficient to state a right and cause of action, there was no error by the trial court in not allowing him another opportunity to amend his petition under La. C.C.P. art. 934. See Roadhouse Bar-B-Que, Inc. v. Certain Underwriters at Lloyds, 04-1697 (La.App. 3 Cir. 5/4/05), 909 So.2d 619, 627; Scamardo v. Dunaway, 96-1036 (La.App. 5 Cir. 4/29/97), 694 So.2d 1041, 1043, writ denied, 97-1395 (La. 9/5/97), 700 So.2d 517; Dubroc v. Allstate Ins. Co., 93-780 (La. App. 3 Cir. 3/2/94), 633 So.2d 861, 865-66 (on rehearing).


author: JOHNSON, J.

text:
    Wilmer CONTRERAS, Ana Sauceda, Carlos Moran, Jacky Osweld, Julio Vidal, Elena Vidal and Franklin Flores v. Hannah VESPER, Mendakota Insurance Company and Old American County Mutual Fire Insurance Company
    NO. 16-CA-318
    Court of Appeal of Louisiana, Fifth Circuit.
    December 21, 2016

      COUNSEL FOR PLAINTIFF/APPELLANT, WILMER CONTRERAS, ANA SAUCEDA, CARLOS MORAN, JACKY OSWELD, JULIO VIDAL, ELENA VIDAL AND FRANKLIN FLORES, Ivan A. Orihuela
    COUNSEL FOR DEFENDANT/AP-PELLEE, MENDAKOTA INSURANCE COMPANY, R. Todd Musgrave, Amanda H. Aucoin, Lindsey M. Devereux
    Panel composed of Marc E. Johnson, Robert M. Murphy, and Hans J. Liljeberg
   JOHNSON, J.

[,In this automobile tort case, Plaintiffs appeal the granting of Defendant Menda-kota Insurance Company’s summary judgment. For the following reasons, we affirm.

FACTS & PROCEDURAL HISTORY

Plaintiffs, Wilmer Contreras, Ana Sauce-da, Carlos Moran, Jacky Osweld, Julio Vidal, Elena Vidal and Franklin Flores, filed suit on March 1, 2015 for damages allegedly sustained in an automobile accident that occurred on March 1, 2014. Plaintiffs contend Mr. Contreras was operating a vehicle on Power Blvd. when a vehicle driven by Hannah Vesper changed lanes and struck their vehicle. They named as defendants Ms. Vesper; her automobile liability insurer, Mendakota Insurance Company (“Mendakota”); and Old American County Mutual Fire Insurance Company (“Old American”) as the uninsured/underinsured motorist carrier.

On December 14, 2015, Mendakota filed a motion for summary judgment seeking dismissal of Plaintiffs’ claims against it on the basis there was no valid automobile liability policy in effect on the date of the accident. Specifically, Mendakota maintained that Ms. Vesper’s insurance policy was canceled two months prior to the accident based on her failure to renew the policy by paying the required premium.

In support of its motion for summary judgment, Mendakota submitted several exhibits, including the insurance policy at issue, the policy’s declarations page, a copy of the insured’s insurance card, the renewal notice, the notice of expiration, and an affidavit of Sharon Mason, a senior product administrator with Mendakota. These exhibits showed that Mendakota issued an automobile insurance policy in Mississippi to Ms. Vesper, whose address was listed as British | ^Columbia, Canada, for a 2012 Toyota that was principally garaged either in Canada or Lorman, MS. The insurance policy had an effective date of July 10, 2013 and an expiration date of January 10, 2014.

According to the terms of the policy, the policy would automatically terminate at the end of the current policy period if the insured did not accept the offer of Mendakota to renew the policy and pay the required renewal premium when due. Mendakota attached a copy of an undated renewal notice which offered Ms. Vesper a new policy term from January 10, 2014 to July 10, 2014, upon payment of the premium. The renewal notice showed the premium was due on December 31, 2013, if it was going to be paid in full, or January 10, 2014, if it was going to be paid in six payments over six months. Ms. Mason stated that the renewal notice was sent to Ms. Vesper on November 26, 2013, but that Ms. Vesper never paid the renewal premium. Ms. Mason explained that because Mendakota never received additional premium payments from Ms. Vesper, her automobile policy expired on January 10, 2014. Additionally, an undated notice of expiration showed that Ms. Vesper was advised that her policy “has expired in accordance with the terms and conditions of the above mentioned policy.”

After a hearing, the trial court granted Mendakota’s motion for summary judgment. The day after the hearing, the trial court signed a written judgment granting Mendakota’s motion.

Plaintiffs seek review of this judgment claiming the trial court erred in granting summary judgment because Defendant failed to properly cancel the relevant insurance policy.

J¿SSUE

On appeal, Plaintiffs argue that the trial court erred in granting summary judgment because the automobile policy at issue was not properly cancelled under Louisiana or Mississippi law. Plaintiffs contend Mendakota failed to mail a notice of cancellation ten days prior to cancelling the policy, as required by law, and failed to provide proof of when it mailed the renewal notice or the cancellation notice in order to start the running of the ten-day period.

DISCUSSION

The summary judgment procedure is a procedural device used to secure the just, speedy, and inexpensive determination of actions by avoiding a full-scale trial where there is no genuine factual dispute. La. C.C.P. art. 966(A)(2); Pouncy v. Winn-Dixie La., Inc., 15-189 (La.App. 5 Cir. 10/28/15); 178 So.3d 603, 605. Summary judgment should be granted if the motion and supporting documents, including the pleadings, affidavits, depositions, answers to interrogatories, certified medical records, written stipulations and admissions, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(A).

The initial burden is on the mover to show that no genuine issue of material fact exists. If the moving party will not bear the burden of proof at trial, the moving party must only point out that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action or defense. The non-moving party must then produce factual support to establish that he will be able to satisfy his evidentiary burden at trial. La. C.C.P. art. 966(D). If the non-moving party fails to do so, there is no genuine issue of material fact, and summary judgment should be granted. Pouncy, supra.

Appellate courts review the granting or denial of a motion for summary judgment de novo under the same criteria that governs the trial court’s | .determination of whether a summary judgment is appropriate: whether there is any genuine issue of material fact, and whether the mover is entitled to judgment as a matter of law. Bernard v. Ellis, 11-2377 (La. 7/2/12); 111 So.3d 995, 1002.

The “[ijnterpretation of an insurance policy ordinarily involves a legal question that can be properly resolved by a motion for summary judgment.” Bernard, 111 So.3d at 1002.

Since the insurance policy at issue was issued in Mississippi and the accident occurred in Louisiana, Plaintiffs contend we must first determine whether Mississippi or Louisiana law governs. Under La. C.C. art. 3537, “an issue of conventional obligations is governed by the law of the state whose policies would be most seriously impaired if its laws were not applied to that issue.” To make such a determination, the court must evaluate

the strength and pertinence of the relevant policies of the involved states in the light of: (1) the pertinent contacts of each state to the parties and the transaction, including the place of negotiation, formation, and performance of the contract, the location of the object of the contract, and the place of domicile, habitual residence, or business of the parties; (2) the nature, type, and purpose of the contract; and (3) the policies referred to in Article 3515, as well as the policies of facilitating the orderly planning of transactions, of promoting multi-state commercial intercourse, and of protecting one party from undue imposition by the other.

La. C.C. art. 3515, the more general choice-of-law provision, likewise states that the law of the state whose policies would most seriously be impaired if its laws were not applied to the issue governs an issue in a case that has contacts with another state. Being a more general rule, Article 3515 sets forth that such determination is to be evaluated by considering

Isthe strength and pertinence of the relevant policies,of all involved states in the light of: (1) the relationship of each state to the parties and the dispute; and (2) the policies and needs of the interstate and international systems, including the policies of upholding the justified expectations of parties and of minimizing the adverse consequences that might follow from subjecting a party to the law of more than one state.

In Champagne v. Ward, 03-3211 (La. 1/19/05); 893 So.2d 773, the Louisiana Supreme Court addressed the issue of choice-of-law for insurance contracts issued in a foreign jurisdiction. In Champagne, the plaintiff was a resident of Mississippi, his vehicle was registered in Mississippi, and the vehicle was covered by a policy of insurance obtained in Mississippi. Nonetheless, the plaintiff sought to have Louisiana law apply to the interpretation of his UM coverage because no UM benefits were available under Mississippi law because the UM coverage was reduced on a dollar by dollar basis by the amount of liability coverage available from the tort-feasor. The supreme court held that even though an accident occurs in Louisiana and involves a Louisiana resident, courts must conduct a choice-of-law analysis to determine which state’s law applies. In applying the analysis, the supreme court ultimately found that Mississippi law applied.

•In Champagne, the supreme court directed that the starting point in a multi-state case is to first determine there is a difference between Louisiana law and the law of the foreign state, and then conduct a choice-of-law analysis under La. C.G. arts. 3515 and 3537. In Lee v. Sapp, 14-1047 (La.App. 4 Cir. 3/4/15); 163 So.3d 60, 63, the Fourth Circuit stated that “[i]f the governing law of each state is identical, or so similar that the same result would be reached under either law, a ‘false conflict’ exists and, thus, no need exists to determine which state’s law applies.” However, the Lee court went on to find that Florida law governed because the automobile liability insurance policy was issued and delivered in | ^Florida. As such, the Lee court cited and relied on Florida law regarding the interpretation of contracts, even though it noted that the result would be same if it were to apply Louisiana law because it was relying on the terms, and conditions of the insurance policy itself.

Conversely, in Maldonado v. Kiewit La. Co., 13-756 (La. App. 1 Cir. 3/24/14); 146 So.3d 210, the First Circuit took a different approach. After noting that it was not necessary to conduct a choice-of-law analysis to determine whether Louisiana or Texas law applied because the relevant law of the two states was the same regarding contract interpretation and duty to defend, the court applied Louisiana law.

In the instant case, we find no true conflict between the relevant Louisiana and Mississippi laws regarding the interpretation of contracts and statutory provisions; thus, we find it unnecessary to conduct a choice of law analysis.

An insurance policy is a contract between the parties and should be construed using the general rules of interpretation of contracts set forth in the Civil Code. Sensebe v. Canal Indemnity Co., 10-703 (La. 1/28/11); 58 So.3d 441, 445. “When the words of an insurance contract are clear and explicit and lead to no absurd consequences, no further interpretation maybe made in search of the parties’ intent and courts must enforce the contract as written.” Id.

An insurance policy should not be interpreted in an unreasonable or a strained manner so as to enlarge or to restrict its provisions beyond what is reasonably contemplated by its terms or so as to achieve an absurd conclusion. LeBlanc v. Babin, 00-1813 (La.App. 5 Cir. 4/24/01); 786 So.2d 850, 854. Absent |7a conflict with statutory provisions or public policy, insurers, like other individuals, are entitled to limit their liability and to impose and to enforce reasonable conditions upon the policy obligations they contractually assume. Id. at 855. When the language of an insurance policy is clear, courts lack the authority to change or alter its terms under the guise of interpretation. Id. at 856.

The terms of the insurance policy at issue specifically provide in pertinent part:

Automatic Termination
If we offer to renew your policy and you or your representative do not accept this offer and make good payment of the required renewal premium when due, this policy will automatically terminate at the end of the current policy period. Failure to pay the required renewal premium when due shall mean that you have rejected our renewal offer.

According to the affidavit of Ms. Mason, Mendakota sent a Renewal Notice to Ms. Vesper on November 26, 2013, offering to renew her policy for a term of January 10, 2014 to July 10, 2014. The Renewal Notice shows that the premium was due on December 31, 2013, if payment was made in full, or January 10, 2014, if payment would be made irt six payments over a six month period. Ms. Mason attested that Mendako-ta never received any additional premium from Ms. Vesper after the Renewal Notice was sent. Thus, according to Ms. Mason and the terms of the policy, Ms. Vesper’s policy terminated on January 10, 2014.

Plaintiffs did not offer any evidence to refute Ms. Mason’s testimony. While Plaintiffs challenge the affidavit of Ms. Mason on the basis she did not have personal knowledge of the mailing of the Renewal Notice, testimony from the person who actually mailed the notice is not required, See Nolan v. Wilson Mabray, 10-373 (La. 11/30/10); 51 So.3d 665, 671.

Plaintiffs argue that notwithstanding the insurance contract, La. R.S. 22:1266 required Mendakota to give 10 days notice prior to cancelling Ms. |8Vesper’s policy. Plaintiffs contend that because Mendakota failed to prove this notice was sent to Ms. Vesper, it is not entitled to judgment as a matter of law because a question of fact remains as to whether Mendakota properly terminated the insurance policy under the statute.

It appears Plaintiffs are relying on La. R.S. 22:1266(D)(1), which provides that an insurer is required to mail or deliver a notice of cancellation for nonpayment of premium to the insured at least 10 days prior to the effective date of cancellation or the notice of cancellation is ineffective. However, the last sentence of the subsection states, “[t]his subsection shall not apply to nonrenewal.” This makes it clear that the provisions for cancellation, namely the 10-day notice, do not apply to the renewal of a policy. Lockwood v. Allstate Ins. Co., 47,746 (La.App. 2 Cir. 1/16/13); 109 So.3d 931, 934.

Renewal is defined as “the issuance and delivery by an insurer of a policy replacing at the end of the policy period a policy previously issued and delivered by the same insurer.” La. R.S. 22:1266(A)(5). When a policy expires from the running of its term, it is not being disrupted but rather is “dying a natural death,” and the statutory provisions regarding renewal are applicable rather than the cancellation provisions. Lockwood v. Allstate Ins. Co., 109 So.3d at 934; Dominique v. Rodriguez, 06-578 (La.App. 5 Cir. 11/28/06); 947 So.2d 63, 66. It is clear that the instant case involves the renewal of an insurance policy, not cancellation, because there is no evidence that the policy was disrupted or terminated prior to its anticipated termination date of January 10, 2014.

The nonrenewal of an automobile insurance policy is governed by La. R.S. 22:1266(E), which provides in pertinent part:

|9(1) No insurer shall fail to renew a policy unless it shall mail or deliver to the named insured, at the address shown in the policy, at least twenty days advance notice of its intention not to renew. This Subsection shall not apply:
(a) If the insurer has manifested its willingness to renew.
(b) In case of nonpayment of premium

Subsection E makes it clear that an insured is presumed to know the term of his insurance policy and has no right to expect that the policy will continue in effect until he decides to pay another premium. Lockwood, 109 So.3d at 934.

If the insurance company has clearly manifested its willingness to renew an insurance policy and the insured does not avail himself of the opportunity within the time period allowed, the insurance policy will lapse at the termination of the period. Dominique, 947 So.2d at 66. The insurer is not required to renew a policy or give notice of its intention not to renew if it “has manifested its willingness to renew.” By stating its willingness to renew a policy, the insurer gives the insured the option of continuing or terminating coverage and, if the insured is silent, the insurer is no longer obligated to renew the policy. Id.

The insurer’s willingness to renew is ineffective unless it is communicated to the insured. Thus, the insurer is required to manifest its willingness to renew the policy in order to avoid automatic renewal of the policy. Nolan, 51 So.3d at 671. An insurer has a prima facie burden to prove that it mailed a required renewal notice, which creates a presumption the insured, received the notice. The presumption may.be rebutted by the insured by testifying that the notice was never delivered. Id.

Upon de novo review, we find that Men-dakota issued an automobile policy to Ms. Vesper that was effective from July 10, 2013 until January 10, 2014. The evidence shows that Mendakota offered to renew Ms. Vesper’s policy by sending her a notice of renewal with a due date of either December 31, 2013 or January 10, |]02Q14, depending on the type of payment made. Mendakota never received any renewal premium from Ms. Vesper on or before the end of the policy period. Plaintiffs offered no contradicting evidence to the fact that Mendakota manifested its willingness to renew Ms. Vesper’s policy. There is no evidence from the insured, Ms. Vesper, indicating she did not receive the notice of renewal or that she paid the renewal premium. Accordingly, Ms. Vesper’s policy expired by its own terms at the end of the policy period on January 10, 2014.

We find that Mendakota has adequately established that Ms. Vesper’s automobile insurance policy was not in effect on the date of the accident, March 1, 2014. As such, we find Mendakota was entitled to summary judgment as a matter of law.

DECREE

For the foregoing reasons, we affirm the trial court’s judgment granting summary judgment in favor, of Mendakota and dismissing all of Plaintiffs’ claims against it.

AFFIRMED

      . This appeal contains a designated record and, therefore, this Court is limited in its knowledge of the procedural history of the case.

      . The initial judgment signed by the trial court did not contain the required decretal language in order to render the judgment final because it failed to indicate the specific relief granted. See Morraz-Blandon v. Voiron, 16-112 (La.App. 5 Cir. 8/25/16); 199 So.3d 1220, 1221. As such, after the appeal was lodged, we issued an order instructing the trial court to amend the judgment to include the necessary decretal language. The trial court signed an amended judgment on November 17, 2016 to include language that "Summary Judgment is granted in favor of Mendakota Insurance Company fully dismissing all claims of plaintiffs.” The amended judgment corrected the deficiency in the judgment; accordingly, we find that a final judgment has been rendered and is reviewable on appeal.

      . Mendakota never raised the choice of law issue but rather simply applied Louisiana law in its motion for summary judgment. It was only in Plaintiffs’ opposition to the motion for summary judgment that the choice of law issue was raised.
      In Sensebe v. Canal Indemnity Co., 10-703 (La. 1/28/11); 58 So.3d 441, 443 n.1, the supreme court noted that where an accident occurs in Louisiana involving a Louisiana resident and the applicable insurance policy was issued outside of Louisiana, a choice of law analysis is appropriate. However, in Sensebe, the supreme court noted that the choice of law issue was never raised and that the defendant argued for the application of Louisiana law in its motion for summary judgment; thus, the supreme court found that the defendant conceded that Louisiana law applied and •conducted no choice of law analysis. Here, Plaintiffs raised the choice of law issue at the trial court level and again on appeal.

      . We note that the Lee, court cited Arabie v. CITGO Petroleum Corp., 10-2605 (La. 3/13/12); 89 So.3d 307, 327, in support of this statement; however, the cited portion of the Arabie case is from the dissent.

      . Similar to Louisiana law, Mississippi law provides that "insurance policies are contracts and must be enforced according to their provisions.” Minn. Life Ins. Co. v. Columbia Casualty Co., 164 So.3d 954, 968 (Miss. 2014). Mississippi law further requires the policy be looked at as a whole, considering all relevant portions together and, when possible, give operative effect to every provision to reach a reasonable result. Id. The court is to look at the meaning of the language used—when words are plain and unambiguous the court will afford them their plain, ordinary meaning and will apply them as written. Id. Additionally, there is no statutory provision in Mississippi that requires notice by the insurance company to the insured when a policy is not renewed due to nonpayment of premiums. See Lynch v. Miss. Farm Bureau Casualty Ins. Co., 880 So.2d 1065, 1068 (Miss. App. 2004).

      . The Louisiana Supreme Court has interpreted this provision to mean that if an insurer fails to comply with the notice requirement and is not subject to any listed exceptions, the policy is automatically renewed. Nolan v. Wilson Mabray, 10-373 (La. 11/30/10); 51 So.3d 665, 670, citing Ray v. Associated Indemnity Corp., 373 So.2d 166 (La. 1979).

      . See Maddox v. Keen, 33,072 (La.App. 2 Cir. 4/7/00); 756 So.2d 1279, 1283, where the Second Circuit found the plaintiffs’ failure to timely pay the renewal premium caused-the policy to lapse by its own terms. The court noted that by its own terms, the plaintiffs’ insurance policy was to remain in effect until July 15, 1992. The court explained that by sending a renewal notice to the plaintiffs on June 11, 1992, with a due date of July 15, 1992, the insurer manifested its intent to renew the plaintiffs’ policy and continue coverage through January 15, 1993, if the plaintiffs paid the renewal premium by July 15, 1992. As such, the court concluded that the insurer was obligated to renew the policy only if the plaintiffs indicated their desire to renew the coverage and made payment of the premium on or before July 15, 1992. Because the plaintiffs failed to timely pay their renewal premium, the policy expired by its own terms.