author: GUIDRY, J.

text:
    Scott LOWE and Beth Lowe v. NOBLE, L.L.C., et al.
    NUMBER 2016 CA 0165
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: MAY 09, 2017

      Steve Joffrion, Garrett Joffrion, John Kitto, Prairieville, LA, and Bradford H. Walker, Metairie, LA, Counsel for Plaintiffs/Appellants, Scott Lowe & Beth Lowe
    Rodney J. Lacoste, Jr., Kristie L. Mou-ney, New Orleans, LA, Counsel for Defendants/Appellees, Noble, LLC, Roy E. Poole, and Companion Property and Casualty Ins. Co.
    Kris P. Kiefer, Metairie,-LA, Counsel for'Defendants/Appellees, James Pitts and Allstate Ins. Co.
    Andrew T. Lilly, New Orleans, LA, Counsel for Defendant/Appellee, High Performance Solutions, LLC
    William C. Rowe, Jr.,’ Joseph S, Manning, Baton Rouge, LA, Counsel for Defendant/Appellee, Tony Crawley
    Thomas J. Eppling, Julie Steed Kam-mer, Metairie, LA, Counsel for Defendants/Appellees, Ernest Wilkes, Saia Motor Freight Line, LLC, and Travelers Indemnity Co. 'of Connecticut
    Christopher J. Kane, New Orleans, LA, Counsel for Defendants/Appellees, Robert Arrington, YRC Inc., and Old Republic Ins, Co.
    G. Bruce Parkerson, Jessica A. Savoie, New Orleans, LA, Counsel for Defendants/Appellees, Tommy Lee Marshall and Max Trans LLC
    Anne E. Briard, New Orleans, LA, Counsel for Defendant/Appellee, Star Insurance Co.
    Robert-A. Mahtook, Jr„ Amy Goode, Lafayette, LA, Counsel for Defendants/Appellees, Little Pine Island Corp., Little Pine Island, LP, and John J. Cummings, III
    H. Minor Pipes, III, Kimberly Silas, New Orleans, LA, Counsel for Defendant/Appellee, American First Ins. Co.
    BEFORE: WHIPPLE, C.L, GUIDRY, AND CHUTZ, JJ.
   GUIDRY, J.

lain this case arising out of a multi-vehicle accident, plaintiffs, Scott Lowe and Beth Lowe, appeal from a judgment of the trial court granting summary judgment in favor of defendants, Max Trans, LLC (Max Trans) and Tommy Lee Marshall. For the reasons that follow, we affirm the trial' court’s judgment.

FACTS AND PROCEDURAL HISTORY

On December 29, 2011, Scott Lowe was a guest passenger in a vehicle driven by David Porter (Porter vehicle), traveling westbound on Interstate 10 in New Orleans, Louisiana. At approximately 4:00 a.m., the Porter vehicle encountered a dense' cloud made up of a mixture of fog and smoke. Although Porter began braking, he nonetheless rear-ended the vehicle in front of him owned by Max Trans and operated by Marshall (Marshall truck), which was obstructing one or more lanes of travel. The Marshall truck apparently had also encountered the cloud of smoke and fog and had rear-ended a vehicle owned by Clayton Harper and operated by Tony Crawley, which was also obstructing one or more lanes of the interstate. Immediately after the collision between the Porter vehicle and the Marshall vehicle, the Porter vehicle was struck from the side and/or from behind by two vehicles— one vehicle owned by Noble and operated by Roy E. Poole and another vehicle owned and operated by James Pitts. Finally, in an effort to avoid colliding with other vehicles, a vehicle owned by Saia Motor Freight Line, LLC and operated by Ernest Wilkes (Saia vehicle), caused the Noble truck to collide into the vehicle owned by James Pitts, further causing both vehicles to collide with the Porter vehicle.

On December 20, 2012, Lowe and his wife, Beth Lowe, filed a petition for damages against multiple defendants asserting that the second collision caused by the Saia vehicle caused the Porter vehicle to go underneath the Marshall vehicle, resulting in severe injuries to Lowe, Particularly as to defendants Max Trans and LMarshall, plaintiffs asserted Marshall was employed by Max Trans and was working within the scope of his employment when the second collision was caused, in whole or in part, by the negligence of Marshall in: failing to keep a proper look out; entering a dense cloud of smoke and fog that reduced .visibility; entering a dense could of smoke' and fog at a speed too high to avoid a collision; failing to yield, the right of way; failing to see what he should have seen, and if he did see, failing to react in a reasonable and prudent manner to avoid a collision; following a vehicle too closely in violation of La. R.S. 32:81; and obstructing the lane of travel when it was unsafe and unreasonable to do so, in violation of La. R.S. 32:64 and 141.

Thereafter, on May 5, 2014, Max Trans and Marshall filed a motion for summary judgment, asserting that undisputed material facts establish that' the vehicle in which Lowe was a passenger hit the vehicle driven by Marshall from the rear, and plaintiffs presented no evidence to support a finding that the collision was caused by Marshall’s negligence or to rebut the presumption of liability imposed upon the driver of the rear-ending Porter vehicle. Following a hearing, the trial court denied Max Trans and Marshall’s motion for summary judgment as premature.

Following the taking of depositions of several other drivers involved in the accident at issue, Max Trans and Marshall re-urged their motion for summary judgment on July 14, 2015, asserting that the scope of any duty owed by a leading driver to a following driver does not encompass the risk of harm of both drivers encountering zero visibility conditions and a stopped vehicle obstructing the leading vehicle’s lane of travel. Further, Max Trans and Marshall asserted that the scope of any duty owed by a leading motorist to avoid striking a forward vehicle stopped in its lane of travel does not encompass the risk of harm that a following vehicle will strike the rear of the leading vehicle when both drivers experience zero ^visibility conditions. Max Trans and Marshall contended that the zero visibility presented a sudden emergency, precluding any finding of fault as to Marshall. In support of then motion, Max Trans and Marshall submitted the deposition testimony of Marshall, as well as five other drivers involved in the subject accident.

In opposing Max Trans and Marshall’s motion for summary judgment, plaintiffs asserted that a genuine issue of material fact existed as to what Marshall saw or should have seen on the morning of the accident and submitted photos of the accident as well as the deposition testimony of Marshall and Robert Arrington in conjunction with their opposition.

At the hearing on the re-urged motion, plaintiffs referred to, for the first time, the deposition testimony of Crawley as support for their argument in opposition to Max Trans and Marshall’s motion for summary judgment. Counsel for Crawley, Max Trans, and Marshall objected to the reference and/or introduction of the Crawly deposition not only because the deposition was noticed in an entirely different case in which Crawley was a plaintiff, but also because plaintiffs had not referenced or otherwise relied upon the deposition in their opposition filed with the court. The trial court ruled that because Crawley was not deposed in the instant case and the deposition was not filed into the instant suit record as part of plaintiffs’ opposition to the re-urged motion for summary judgment, it was not admissible. However, plaintiffs were permitted to proffer the Crawley deposition.

At the conclusion of the hearing, the trial court found that it was undisputed that during the relevant time period, there were periods where, due to the combination of smoke and fog, there were zero visibility conditions created on I- RIO- The trial court further found that the strange, or at least unusual, occurrence of weather and possibly smoke arose to the level of being an act of God in its condition. As such, the trial court found, given the deposition testimony of Marshall and other drivers, that: Marshall unexpectedly encountered almost immediate zero visibility, there was a vehicle in front of him, and while he may have had the option to swerve, even if he saw the vehicle in time to do so, swerving into lanes where the driver has zero visibility was not reasonable. Accordingly, the trial court granted summary judgment in favor of Max Trans and Marshall and dismissed plaintiffs’ claims against them with prejudice.

Plaintiffs now appeal from the trial court’s judgment.

STANDARD OF REVIEW

A motion for summary judgment is a procedural device used to avoid a full scale trial when there is no genuine issue of material fact. Johnson v. Evan Hall Sugar Cooperative, Inc., 01-2956, p. 3 (La.App. 1 Cir. 12/30/02), 836 So.2d 484, 486. A motion for summary judgment is properly granted if the pleadings, depositions, answers to interrogatories, and admissions, together with affidavits, if any, admitted for purposes of the motion for summary judgment, show that there is no genuine issue of material fact, and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B)(2). Only evidence admitted for purposes of the motion for summary judgment shall be considered by the court in its ruling on the motion. La. C.C.P. art. 966(F)(2). In determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria that govern the trial court’s determination of whether summary judgment inappropriate. Lieux v. Mitchell, 06-0382, p. 9 (La.App. 1 Cir. 12/28/06), 951 So.2d 307, 314, writ denied, 07-0905 (La. 6/15/07), 958 So.2d 1199.

On a motion for summary judgment, the burden of proof is on the mover. If, however, the mover will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the mover’s burden on the motion does not require that all essential elements of the adverse party’s claim, action, or defense be negated. Instead, the mover must point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, the adverse party must produce factual evidence sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. If the adverse party fails to meet this burden, there is no genuine issue of material fact, and the mover is entitled to summary judgment. La. C.C.P. art. 966(C)(2).

A fact is material when its existence or nonexistence may be essential to plaintiffs cause of action under the applicable theory of recovery. Facts are material if they potentially insure or preclude recovery, affect a litigant’s ultimate success, or determine the outcome of the legal dispute. Smith v. Our Lady of the Lake Hospital Inc., 93-2512, p. 27 (La. 7/5/94), 639 So.2d 730, 751. Because 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. Charlet v. Legislature of the State of Louisiana, 97-0212, p. 7 (La.App. 1 Cir. 6/29/98), 713 So.2d 1199, 1203, writs denied, 98-2023, 98-2026 (La. 11/13/98), 730 So.2d 934.

DISCUSSION

In the instant case, Max Trans and Marshall sought summary judgment on the ground that the scope of whatever duty a forward motorist owes to a following motorist does not encompass the risk of the bizarre set of circumstances presented | sby sudden and unforeseeable zero visibility conditions. More particularly, Max Trans and Marshall asserted that the zero visibility conditions presented a sudden emergency, precluding any finding of fault as to Marshall.

Under the sudden emergency-doctrine, one who suddenly finds himself in a position of imminent peril, without sufficient time to consider and weigh all the circumstances or the best means to avoid an impending danger, is not guilty of negligence if he fails to adopt what subsequently and upon reflection may appear to be the better method, unless the emergency is brought about by his own negligence. Hickman v. Southern Pacific Transport Company, 262 La. 102, 262 So.2d 385, 389 (1972). The doctrine of unavoidable or inevitable accident relieves a person of liability so.long as the person invoking the doctrine shows that he was in no way to blame for the happening. If the motorist has exercised ordinary care as required by law (or the highest degree of care as may be required) and has nevertheless inflicted injury on another, the accident is said to be inevitable, for which no liability attaches. Richardson v. Aldridge, 37, 192, p. 9 (La. App. 2nd Cir. 5/16/03), 854 So.2d 923, 931, writ denied, 03-3034 (La. 2/6/04), 865 So.2d 743. Where no facts are in dispute, summary judgment may be appropriate where a sudden emergency renders an accident unavoidable. Carias v. Loren, 14-0655, p. 5 (La.App. 1 Cir. 3/9/15) 2015 WL 1019481 (unpublished opinion), writ denied, 15-0879 (La. 8/28/15), 176 So.3d 402; Loyd v. Lancer Insurance Company, 43,859, p. 4 (La. App. 2nd Cir. 1/14/09), 999 So.2d 1232, 1234.

In support of their motion for summary judgment, Max Trans and Marshall submitted the deposition testimony of Marshall, wherein he stated that on the morning of the subject accident, he was driving the speed limit, and after crossing the twin span bridge, he did not notice anyone else traveling on I — 10. Marshall stated that thereafter, he suddenly hit a thick fog and he could not see anything. |nMarshall stated that he did not see the fog before entering into it nor did he see any vehicles or objects disappear into the fog ahead of him. After he entered the fog, .Marshall stated that he applied his brakes and tried to slow down while maintaining control of his vehicle and trailer. According to Marshall, two seconds after entering the fog, he saw two faint taillights and attempted to apply his brakes harder, but he ultimately hit the Crawley vehicle, which had stopped in his lane of travel. Marshall stated that within one second of impacting the Crawley vehicle, he felt an impact from the rear.

Marshall’s testimony was corroborated by the deposition testimony of the other drivers involved in the subject accident: David Porter, James Pitts, Roy Poole, and Ernest Wilkes. All of these'drivers stated that after crossing the twin span bridge on 1-10, they were suddenly confronted with a thick fog that reduced their visibility to zero. All of these drivers stated that they could not see the cloud of smoke/fog before entering into it, and that upon entering the fog, they could not see. anything beyond the hood of their vehicles.

In opposition to Max Trans and Marshall’s motion for summary judgment, plaintiffs asserted that the sudden emergency doctrine does not apply to the instant case because had Marshall observed warning signs and appreciated the risk of danger ahead, he could have avoided an accident. In support of this argument, plaintiffs submitted the deposition testimony of Robert Arrington, III, the driver of a vehicle that had stopped on the interstate prior to the accident at issue. Arrington stated that earlier that morning he had heard over his CB radio that there was an accident in the area, although he was not sure as to the location of the accident. Then, about 2-3 miles before he arrived at the accident site, he smelled smoke. Ar-rington also stated that thereafter, he saw two eastbound vehicles emerging from the fog with their four-way flashers on and driving approximately, 10 to 15 mph. Ar-rington stated that he could see the haze through the lights of the cars that were h ^merging, and then he could see the haze in his headlights as he drove into it. As he drove into the haze, Arrington stated that he put his four-way flashers on and reduced his speed. Arrington stated that when the haze, got so thick as to affect his visibility, he came to a “panic stop” in the right lane. .When he brought his vehicle to a stop, Arrington stated that he .had passed through the thick area of the fog and could see again. Arrington stated that other drivers were coming to a stop or making u-tums in the median, and that the cars that had come to a stop were lining up behind him in the right lane and in the middle lane. Arrington noted that cars behind him started to “thump.”

However, Arrington also acknowledged that he arrived at the accident before the Crawley vehicle stopped in the middle lane, and that it was more than four minutes between when he stopped and when the Crawley vehicle hit him. Arrington stated that he did not see the Crawley vehicle before it hit him. Additionally, Ar-rington acknowledged that as he stopped his vehicle, the wind “swirled” and he could see what was ahead of him, although a portion of his trailer was still in the area of zero visibility.

In addition to the deposition testimony of Arrington, plaintiffs attempted to submit the deposition of Crawley in support of their argument that the sudden emergency doctrine is inapplicable to Marshall in the instant ease. The trial court, however, ruled that the Crawley deposition was inadmissible because it had not been taken for purposes of this case and/or had not been filed into this suit record as part of an opposition to this motion for summary judgment. Because plaintiffs did not reference or attempt to file into the record the Crawley deposition until the day of the hearing on- Max Trans and Marshall’s motion for summary judgment, we find no abuse of discretion by the trial court in ruling that the deposition was inadmissible. See La. C.C.P. art. 966(B); Buggage v. Volks Constructors, 06-0175 (La. 5/5/06), 928 So.2d 536 (per curiam) (noting that the time limitations | ^established by La. C.C.P. art. 966(B) for serving affidavits in opposition .to a motion for summary judgment are mandatory and that affidavits not timely filed can be ruled inadmissible and properly excluded by the trial court)..

Accordingly, from our de novo review of the admissible evidence admitted into the record for purposes of the motion for summary judgment, we find that plaintiffs have failed to come forward with evidence establishing that there is a genuine issue as to material fact that the sudden, thick fog resulted in zero visibility and created a sudden emergency. Arrington’s -testimony as to his observations prior to and upon his arrival does not create a genuine issue as to what Marshall observed prior to and upon his arrival at the scene of the accident more than four minutes later. As Arrington acknowledged in his testimony, the direction of the fog changed after he came to a stop, resulting in him being able to see ahead of his vehicle, which indicates that the condition of the fog was not constant during the time leading up to the accident at issue. Further, while Arrington stated that he was aware of the fog prior to entering into it because he observed eastbound drivers emerging from it, there is no evidence that over four minutes later, when Marshall arrived on the scene, that cars were driving in the eastbound lanes such.that Marshall had an opportunity to observe similar conditions.

Rather, all of the drivers who arrived at the scene of the accident at the same time as or within seconds of Marshall agreed that they were suddenly confronted with a thick fog that reduced their visibility to zero. None of these drivers saw other vehicles on the interstate nor did they see the fog before entering into it. Accordingly, there is no conflict in the testimony as to what conditions existed at the time Marshall arrived at the scene of the accident and that those conditions constituted a sudden emergency.

Once confronted with the fog, Marshall reacted by applying his brakes so as to maintain control of his truck and trailer, and upon seeing brake lights in front of 112him, attempted to apply his brakes harder so as to avoid a collision, although unsuccessfully. Arrington’s deposition testimony, as well as the testimony of the other drivers, established that they too applied their brakes once confronted with zero visibility, ■ and that they, as well as other vehicles, had come to a stop in the travel lanes of the interstate. Therefore, there is no conflicting evidence that once confronted with zero visibility conditions, Marshall acted in a reasonably prudent manner in attempting to slow down and upon seeing taillights, in attempting to bring his vehicle to a stop.

Accordingly, because plaintiffs failed to come forward with evidence creating a genuine issue as to material fact that Marshall created the emergency due to his own negligence, or that once he was confronted with the emergency that he did not react as a reasonably prudent person would react, the trial court was correct in finding that Max Trans and Marshall were entitled to summary judgment. See McCann v. State Farm Mutual Automobile Insurance Co., 483 So.2d 205, 211 (La. App. 3rd Cir.), writ denied, 486 So.2d 734 (La. 1986).

Finally, plaintiffs contend that the trial court erred in failing to include language in the judgment indicating that due to its granting of summary judgment in favor of Max Trans and Marshall based upon a finding that Marshall is not negligent due to a sudden emergency, Max Trans and Marshall shall not be considered in any subsequent allocation of fault. According to La. C.C.P. art. 966(G):

|1S(1) When the court grants a motion for summary judgment in accordance with the provisions of this Article, that a party or nonparty is not negligent, not at fault, or did not cause, whether in whole or in part, the injury or harm alleged, that party or nonparty shall not be considered in any subsequent allocation of fault. Evidence shall not be admitted at trial to establish the fault of that party or nonparty nor shall the issue be submitted to the jury nor included on the jury verdict form. This Paragraph shall not apply when a summary judgment is granted solely on the basis of the successful assertion of an affirmative defense in accordance with Article 1005, except for negligence or fault.
(2) If the provisions of this Paragraph are applicable to the summary judgment, the court shall so specify in the judgment. If the court fails to specify that the provisions of this Paragraph are applicable, then the provisions of this Paragraph shall not apply to the judgment.

In their brief to this court, Max Trans and Marshall specifically stated that they have no objection to this Court requiring the judgment to be modified to include the requested language. Accordingly, because both parties agree to include the language as requested by the plaintiffs, we amend the trial court’s judgment to reflect that Max Trans and Marshall shall not be considered in any subsequent allocation of fault pursuant to La. C.C.P. art. 966(G).

CONCLUSION

For the foregoing reasons, we affirm the judgment of the trial court granting summary judgment in favor of Max Trans and Marshall and dismissing plaintiffs’ claims against them with prejudice. Further, we amend the trial court’s judgment to state that, due to the court’s finding that Max Trans and Marshall are not negligent, they shall not be considered in any subsequent allocation of fault pursuant to La. C.C.P. art. 966(G). All costs of this appeal are assessed to Scott and Beth Lowe.

AFFIRMED AS AMENDED.

      . According to the record, although copies were provided to counsel and to the court, plaintiffs did not file their opposition to Max Trans and Marshall's re-urged motion for summary judgment into the record until September 10, 2015.

      . Louisiana Code of Civil Procedure article 966 was amended and reenacted by Acts 2015, No. 422, § 1, with an effective date of January 1, 2016. The amended version of article 966 does not apply to any motion for summary judgment pending adjudication or appeal on the effective date of the Act; therefore, we refer to the former version of the article as applicable in this case. See Acts 2015, No. 422, §§ 2 and 3.

      . Plaintiffs also assert on appeal that the trial court erred in rendering summary judgment on an issue that was not properly before the court on the motion for summary judgment and erred in considering evidence outside of the record. Plaintiffs' assertions are based on the trial court’s oral and written reasons for judgment, wherein she described the conditions present on the date of the accident as arising to an act of God and wherein she referenced news reports and press releases relating to the smoke produced in the area. However, it is well recognized that reasons for judgment form no part of the official judgment, and that appeals are taken from judgments, not reasons for judgment. See Doe v. Breedlove, 04-0006, p. 9 (La.App. 1 Cir. 2/11/05), 906 So.2d 565, 571. Accordingly, because on appeal we have conducted a de novo review of the summary judgment at issue, we find no merit in plaintiffs' assignments of error in regard to these issues.


source: Caselaw Access Project

author: WELCH, J.

license: Public Domain

text:
    SECURITY PLAN FIRE INSURANCE COMPANY v. James L. DONELON, Commissioner of Insurance, Department of Insurance, State of Louisiana
    2016 CA 0814
    Court of Appeal of Louisiana, First Circuit.
    MAY 10, 2017

      Gregory E. Bodin, Andrew C. Kolb, Baton Rouge, Louisiana, Attorneys for Appellant Plaintiff-Security Plan Fire Insurance Co.
    John D. Ryland, Alexandria, Louisiana, Attorney for Appellee Defendants — James J. Donelon, in his capacity as Commissioner of Insurance, State of Louisiana
    BEFORE: WELCH, CRAIN, AND HOLDRIDGE, JJ.
   WELCH, J.

I «This appeal concerns the Board of Tax Appeals’ (“BTA”) sustaining of a declinato-ry exception raising the objection of lack of subject matter jurisdiction that resulted in the dismissal of a taxpayer’s petition seeking a refund of taxes paid under protest. For the following reasons, we reverse the BTA’s dismissal of the taxpayer’s petition and find that the BTA has subject matter jurisdiction over the dispute herein.

FACTUAL AND PROCEDURAL HISTORY

Assessments by the Commissioner of Insurance

Louisiana Revised Statutes 22:1476(A)(1) requires the Commissioner of Insurance for the Louisiana Department of Insurance (“Commissioner”) to levy Louisiana Insurance Rating (“LIR”) assessments against insurers doing business in the state in proportion to their gross direct premiums received in the state in the preceding year, less returned premiums. The LIR assessments are in the nature of a tax. See Audubon Ins. Co. v. Bernard, 434 So.2d 1072, 1075 (La. 1983).

A certain percentage of revenue generated by LIR assessments is deposited by the Commissioner with the state treasurer to be credited to a special fund created in the state treasury entitled the Municipal Fire and Police Civil Service Operating Fund. La. R.S. 22:1476(A)(2) The legislature has established the manner in which the funds are distributed amongst the retirement systems to meet actuarial requirements and other obligations. La. R.S. 22:1476(A)(3); see also Louisiana Municipal Association v. State, 2004-0227 (La. 1/19/05), 893 So.2d 809, 830. Under La. R.S. 22:1476(A)(2), monies in the fund shall be invested by the state treasurer in the same manner as monies in the state general fund and interest earned on investment of these monies shall be credited to the state general fund. All unexpended and unencumbered monies in the fund at the end of the | «¡fiscal year shall revert to the state general fund. La. R.S. 22:1476(A)(2) and (4).

Pursuant to La. R.S. 22:1476, the Commissioner assessed Security Plan Fire Insurance Company (“Security”) with $134,483.57 in taxes, representing LIR assessments for 2014 and corrected assessments for 2012 and 2013 (collectively referred to herein as “assessments”). In a letter dated August 6, 2014, the Commissioner classified an LIR assessment as a tax and informed Security that it had the right to appeal the assessment by filing a petition with the BTA. Also, attached were LIR payment coupons, which also, set forth the taxpayer’s right to appeal to the BTA and referred Security to the provisions of La. R.S. 47:1431 et seq,

On August 21, 2014, Security remitted payment for the three assessments to the Department of Insurance under protest and requested a refund. Security' asserted that as an industrial fire company, it was not statutorily required to pay LIR assessments. Security’s letter accompanying the payments noted that should the Department fail to refund said payments by August 29, 2014, Security would prosecute its appeal with the BTA.

Determination of the Board of Tax Appeals

The Department did not refund Security’s payments, and on August 29, 2014, Security filed a “Petition to Review Denial of Tax Assessment Refund” with the BTA. The petition alleged that the BTA had jurisdiction “over this matter | involving the determination of an overpayment or refund of a tax assessment pursuant to La. R.S. 47:1407(1).” Security named the Commissioner as the defendant. Attached to the petition was a letter dated August 6, 2014, wherein the Commissioner informed Security that it had the right to appeal the assessment by filing a petition with the BTA, as well as the LIR payment coupons that referred to the taxpayers appeal rights under La. R.S. 47:1431 et seq.

Despite having directed Security to file any appeal associated with the payment of the assessments with the BTA, on May 19, 2015, the Commissioner filed a declinatory exception with the BTA raising the objection of lack of subject matter jurisdiction, and a peremptory exception raising the objection of the failure to join parties needed for a just adjudication. In his per-eihptory exception, the Commissioner alleged that the retirement systems that were recipients of the LIR assessments were necessary parties. In his exception of lack of subject matter jurisdiction, the Commissioner maintained that the BTA did not have jurisdiction in the instant matter because the Commissioner was not a “state collector” under La. R.S. 47:1418 as amended by the legislature in 2014. Further, the Commissioner noted that under the version of La. R.S. 47:1431 in effect at that time, a petition could only be filed against a “state collector,” which excluded the Commissioner. Finally, the Commissioner argued that Security’s petition sought recovery under the payment under protest procedure, which is governed by La. R.S. 47:1576. Louisiana Revised Statutes 47:1576 requires the Secretary of the Department of Revenue to be the “sole necessary and proper party defendant in any such suit;” therefore, according to the Commissioner no such action can be brought against him.

A hearing on the Commissioner’s exceptions was held by the BTA on August 13, 2015. At that time, the parties stipulated that they did not dispute that RLIR assessments are a tax. Further, counsel for the Commissioner acknowledged the documents instructed Security to appeal to the BTA; however, that position was subsequently re-evaluated and it was determined that the BTA lacked subject matter jurisdiction over the matter.

In a judgment signed January 14, 2016, the BTA sustained the exception raising the objection of lack of subject matter jurisdiction and dismissed Security’s petition. The BTA’s determination hinged on its finding that the Commissioner was not a recognized “collector” under Title 47; thus, there was no jurisdiction to hear such a claim. Specifically, the BTA found that the version of La. R.S. 47:1431, in effect at that time, it heard and decided the matter referred to a taxpayer aggrieved by “the collector’s action or failure to act on a claim for refund.” [Emphasis added.] The BTA found that “the collector” was not the Commissioner, based on the definition in La. R.S. 47:1501(A), which states, in pertinent part, “The terms ‘collector,’ ‘collector of revenue,’ ‘secretary,’ or ‘secretary of revenue,’ when used in this Title, mean the secretary of the Department of Revenue for the state of Louisiana.” Finally, the BTA found that it only had jurisdiction to hear claims from “the collector’s” disallowance of refund claims as provided by La. R.S. 47:1625, or if there has been more than one year of inaction from “the collector” following submission by the taxpayer. Noting no disallowance or inaction by “the collector” had occurred, the BTA identified this deficiency as an additional ground to support sustaining the exception of lack of subject matter jurisdiction.

One BTA member concurred and assigned additional reasons to address the unique facts of this case. He noted that Security had filed its appeal with the BTA |fias instructed by the written notice it received from the Commissioner. According to the BTA member, the notice that the Commissioner provided to Security mirrored the language used on tax assessments by the state’s other tax collectors (Department of Revenue, Office of Motor Vehicles, and Alcohol and Tobacco Control). The BTA member asserted that, as to those agencies, the BTA was granted specific statutory authority to hear appeals, apparently referring to La. R.S. 47:1418(7). He commented that in this case, as to the Commissioner, there was no specific grant of authority. The BTA member added that the lack of any procedural provisions or appeal process in this case was a significant gap in the law in the Insurance Code because “hundreds of millions of dollars of taxes” were imposed under the Insurance Code and collected by the Commissioner.

Security has appealed the January 14, 2016 ruling of the BTA, and challenges only the sustaining of the Commissioner’s exception of lack of subject matter jurisdiction.

LAW & DISCUSSION

Subject matter jurisdiction is the legal power and authority of a tribunal to adjudicate a particular matter involving the legal relations of the parties and to grant the relief to which the parties are entitled. La. C.C.P. arts. 1 and 2; City of Denham Springs v. Perkins, 2008-1937 (La.App. 1st Cir. 3/27/09), 10 So.3d 311, 318, writ denied, 2009-0871 (La. 5/13/09), 8 So.3d 568. Parties may not confer subject matter jurisdiction on any tribunal by mutual agreement. See La. C.C.P. art. 3; Canal/Claiborne, Ltd. v. Stonehedge Development, LLC, 2014-0664 (La. 12/9/14), 156 So.3d 627, 632. Whether a tribunal has subject matter jurisdiction over a case is subject to a de novo review. See In re D.C.M., 2013-0085 (La.App. 1st Cir. 6/11/13), 170 So.3d 165, 169, writ denied, 2013-1669 (La. 7/17/13), 118 So.3d 1102.

The rules of statutory construction are designed to ascertain and enforce the intent of the legislature. M.J. Farms, Ltd. v. Exxon Mobil Corp., 2007-2371 (La. 7/1/08), 998 So.2d 16, 26. It is a fundamental principle of statutory interpretation that “[w]hen 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.” La. C.C. art. 9. When the language of the law is susceptible of different meanings, it must be interpreted as having the meaning that best conforms to the purpose of the law, and the words of law must be given their generally prevailing meaning. La. C.C. arts. 10 and 11.

It is also well established that the legislature is presumed to enact each statute with deliberation and with full knowledge of all existing laws on the same subject. O’Hara v. Globus Med., Inc., 2014-1436 (La.App. 1st Cir. 8/12/15), 181 So.3d 69, 84, writ denied, 2015-1944 (La. 11/30/15), 182 So.3d 939. Thus, legislative language will be interpreted on the assumption that the legislature was aware of existing statutes, well established principles of statutory construction and with knowledge of the effect of their acts and purpose in view. M.J. Farms, Ltd. v. Exxon Mobil Corp., 998 So.2d at 27.

Louisiana Revised Statutes Establishing the Jurisdiction of the Board of Tax Appeals

The only issue before this court is whether the BTA has subject matter jurisdiction to hear Security’s petition against the Commissioner, which is an issue of first impression. Therefore, we begin our inquiry by reviewing the statutory provisions governing the jurisdiction of the BTA.

| ¡Article VII, § 1 of the Louisiana Constitution vests the power of taxation in the legislature, and Article VII, § 3(A) mandates the legislature to “provide a complete and adequate remedy for the prompt recovery of an illegal tax paid by a taxpayer.” To fulfill its latter obligation, the legislature has provided three remedies to taxpayers: (1) the Claims Against the State procedure, La. R.S. 47:1481— 1486; (2) the Payment Under Protest procedure, La. R.S. 47:1676; nd (3) the Overpayment Refund procedure, La. R.S. 47:1621-1627. St. Martin v. State, 2009-0935 (La. 12/1/09), 26 So.3d 736, 738.

The statutes establishing and governing the BTA are contained in Chapter 17 of Title 47 of the Louisiana Revised Statutes (“Chapter 17”). Relevant to our analysis herein are the amendments under La. Acts 2016, No. 335 to Chapter 17 by the, legislature in 2016, which the legislature has expressly directed to be applied retroactively. As demonstrated below, amendments to Chapter 17 evidence a clear intent by ,the legislature to clarify the subject matter jurisdiction of. the BTA. We note from the outset that many of the amendments to the statutes were not in effect at the time that the BTA heard this matter in August of 2015 and ruled on this matter in January of 2016. The impact of these modifications is set forth below in an overview of the statutes governing the subject matter of the BTA.

Also, relevant to the instant matter is La. R.S. 47:1407, which establishes the jurisdiction of the BTA and provides, in relevant part, as follows:

The jurisdiction of the board shall extend to the following:
(1) All matters relating to appeals for the redetermination of assessments, or for the determination of over-payments, or payment under protest petitions, as provided in R.S. 47:1431 through 1438.[] [Emphasis added.]

.Louisiana Revised Statutes 47:1431(A) and (B), which address the manner I Bthat a taxpayer files a petition with the BTA for redetermination, overpayment, and payment under protest, provide:

A. Whenever a taxpayer is aggrieved by an assessment made by a state collector, or by a state collector’s action or failure to act on a claim for refund or credit of an overpayment, such taxpayer may appeal to the board for a redeter-mination of the'asses'sment or a determination of the alleged overpayment, by filing a petition with the board within the respective periods set forth in R.S. 47:1565, 1566, 1625, or other applicable law.
B, If a taxpayer has complied with the provisions of R.S.. 47:337.63 [concerning local tax collectors] or 1576, the taxpayer may file a payment under protest petition with the board within the respective periods set forth therein. [Emphasis added.]

Louisiana Revised Statutes 47:1431 was amended by La. Acts 2016, No. 335, and the phrase “the state collector” was changed to “a state collector.” Importantly, Section 3 of 2016 La. Acts, No. 335 states that “[t]he provisions of this Act amending La. R.S,.. 1431 ... [are] procedural and interpretative and shall be effective on the effective date of Acts No. 640 of the 2014 Regular Session of the Legislature.” The effective date of 2014 La. Acts, No. 640 was June 12, 2014. Thus, retroac-tivity of the 2016 amendments to La. R.S. 47:1431 indicate the legislature’s intent to recognize that the BTA’s jurisdiction includes not just claims for overpayment, refund, and payment under protest brought against the “the collector” (i.e. the secretary of the Department of Revenue), but, that the BTA’s jurisdiction also includes other “state collectors.”

The determination herein focuses on whether the legislature has deemed the Commissioner “a state collector” for purposes of triggering jurisdiction under La. R.S. 47:1407(1). Louisiana Revised Statutes 47:1418 contains definitions for Chapter 17, and states in relevant part:

For purposes of this Chapter, except when the context requires otherwise, the words and expressions defined in this Section shall have the following meanings.
| in(2) “Collector” means the state collector or a local collector, unless specified otherwise.
(7) “State collector” means any of the following:
(a) The secretary of the Department of Revenue, including the secretary’s duly authorized assistants, when used in reference to any tax or fee administered by the department.
(b) The assistant secretary of the office of motor vehicles within the Department of Public Safety and Corrections, including the assistant secretary’s duly authorized assistants, when used in reference to any state tax or fee administered by the office and within the jurisdiction of the Board of Tax Appeals.
(c) The commissioner of the office of alcohol and tobacco control, within the Department of Revenue, when used in relation to any state tax or fee administered by the office and within the jurisdiction of the Board of Tax Appeals.
(d) Any other collector of state taxes or fees, or any other state agency where an agency action is appealable to the board.
(e) The agent or successor of any of the foregoing offices when administering a state tax or fee within the jurisdiction of the Board of Tax Appeals. [Emphasis added.]

Review of legislative history evidences that La. R.S. 47:1418 was amended by 2014 La. Acts, No. 640, § 2. This original version of La. R.S. 47:1418(7) only contained the subsections currently identified as (a), (b), (c), and (e). This was the version of the statute in effect at the time the BTA heard and decided this matter in August of 2015 and January of 2016, respectively. However, like La. R.S. 47:1481, R.S. 47:1418 was amended by La. Acts -2016, No. 335, which added R.S. 47:1418(7)(d), which provides that a state collector includes “[a]ny other collector of state taxes or fees, or any other state agency where an agency action is appealable to the board.” La. R.S. 47:1418(7)(d) ■ also falls under Section 3 of 2016 La. Acts, No. 335 and is deemed by the legislature to be “procedural and interpretative,” and retroactively effective back to the effective date of Acts No. 640 of the 2014 Regular Session of the Legislature — June 12, 2014.

h feeding the direction of the legislature, we find that under La. R.S. 47:1407 and La. R.S. 47:1418(7)(d) the BTA has jurisdiction over Security’s petition. See Segura v. Frank, 93-1271 (La. 1/14/94), 630 So.2d 714, 725 (Where the law has changed during the pendency of a suit and retroactive application of the new law is permissible, the new law applies on appeal even though it requires reversal of a judgment which was correct under the law in effect at the time it was rendered.) The definition of “collector” under La, R.S. 47:1418(2) is defined as “state collector or local collector, unless specified otherwise.” A “state collector” under La. R.S. 47:1418(7)(d) includes “[a]ny other collector of state taxes or fees, or any other state agency where the action is appeal-able to the board.” Here, the Commissioner is a collector of state taxes that are transmitted directly to the Department of Revenue, which disperses a majority of the funds collected into a special fund established by the legislature for the police and firefighter retirement systems, with any interest, unexpended, or unencumbered monies going into the state general fund. See La. 22:1476(A)(2). We believe that this scenario falls under the scope of La. R.S. 47:1407 and 47:1418. The determination by the BTA that it was not granted specific authority to hear the petition of Security was based on the pre-amendment version of La. R.S. 47:1418, which as the concurring BTA member pointed out included only the Department of Revenue, the Office of Motor Vehicles, and the Office of Alcohol and Tobacco Control. However, the amendments to La. R.S. 47:1407, 47:1418(7)(d), and 47:1431 make clear that the legislature intended to clarify the expansive jurisdiction granted to the BTA, and to grant taxpayers who pay taxes to “a state collector,” including state collectors like the Commissioner, access to the BTA for claims related to overpayments, refunds, or payments under protest. See La. R.S. 47:1401. Based on our reading of the statutes, we find that the BTA has jurisdiction to hear the petition filed by Security-

| ^CONCLUSION

For the above and foregoing reasons, the judgment of the BTA signed January 14, 2016 sustaining the Commissioner’s declinatory exception of lack of subject matter jurisdiction is reversed and this matter is remanded for further proceedings. Costs of this appeal in the amount of $967.50 are to be paid by James J. Done-Ion, in his capacity as the Commissioner of Insurance, State of Louisiana.

REVERSED.

Holdridge J. concurs in the result because of the unique facts of this case.

      . The nature of these funds deposited into the retirement systems was addressed in Firefighters’ Retirement System v. Landrieu, 572 So.2d 1175, 1180 (La. App 1st Cir. 1990), writ denied, 575 So.2d 811 (La. 1991). There, this court considered the issue of whether the legislation abolishing constitutionally protected special funds resulted in the abolishment of the special fund into which LIR funds were deposited under La. R.S,- 22:1419 (re-designated as La. R.S. 22:1476 by Acts 2008, § 1). This court found that the legislation abolishing special funds only applied where monies were constitutionally required to be deposited in to the state treasury, This court then found that the directive to deposit monies collected under police and firefighters’ retirement systems’ funds into the state treasury was not constitutional but statutory; thus, the -fund was not abolished under the legislation at issue. Id. at 1179-1180. Further, because the monies under La. R.S, 22:1419 (now La. R.S. 22:1476) are not constitutionally required to be deposited into the state treasury, they are not considered "state funds;” thus, this court found that an appropriation was not required for the treasurer to release monies to the retirement systems. Id. at 1180.

      . Based on its finding that it lacked subject matter jurisdiction, the BTA determined that the Commissioner's peremptory exception raising Security’s failure to join parties needed for a just adjudication was moot.

      . Security’s appeal to this Court is authorized by La. R.S. 47:1435, 47:1436, and La. C.C.P. art. 2083.

      . La, R.S. 47:1407(1) was amended by 2014 La. Acts, No. 198 to add matters relating to payment under- protest petitions to the BTA’s jurisdiction.


author:
PER CURIAM CRAIN, J., CALLOWAY, J.,
     HOLDRIDGE, J.,

text:
    THREE RIVERS COMMONS CONDOMINIUM ASSOCIATION v. Donna GRODNER, et al.
    NO. 2016 CA 0067
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: MAY 10, 2017

      Donna Grodner Baton Rouge, Louisiana, Attorney for Defendants/Appellants, Donna Grodner, James Hornsby, Troy and Cindy Phillips, Mark and Robin Angeron, Janet Folse, and Kelly Burkenstock
    Barbara Irwin, Timothy Pujol, Gonzales, Louisiana, Attorneys for Plaintiff/Appellee, Three Rivers Commons Owner’s Association, Inc.
    BEFORE: McCLENDON,WELCH, CRAIN, HOLDRIDGE, AND CALLOWAY, JJ.

      . Hon. Curtis A. Calloway, retired, is serving as judge ad hoc by special appointment of the Louisiana Supreme Court.

   PER CURIAM

I ¡¡This ⅛ an appeal of a judgment denying an exception of no right of action, issuing a permanent injunction prohibiting the opening of a gate on Three Rivers Island in Livingston Parish, and denying a request for a mandatory injunction ordering the opening of the gate. We reverse the judgment relative to the issuance of the permanent injunction prohibiting opening the gate. In all other respects, the judgment is affirmed.

FACTS

Three Rivers Island is an island located on the south side of the Diversion Canal in Livingston Parish. It is accessible by boat, and vehicular traffic is restricted to golf carts. The condominium regime, Three Rivers Commons, was developed on the western end of the island. East of the condominium development are subdivisions developed in separate filings.

A “foot bridge” over the Petite Amite River, wide enough to accommodate a golf cart, connects the westerly end of the island to a parking lot located in Ascension Parish. Upon crossing the foot bridge from the parking lot to the island, one encounters intersecting concrete pathways. One pathway extends straight ahead from the base of the foot bridge and across the common space for the condominium development. The other pathway curves in a southerly direction, reconnecting with the straight pathway on the easterly end of the condominium development. Gates are located on either end of the straight pathway at the intersections with the curved pathway. This dispute arose after the gate on the easterly end of the straight pathway was welded shut, effectively preventing | .¡anyone from accessing the lots and residences to the east of the condominium development using the straight pathway.

The Board of the incorporated owner’s association for Three Rivers Commons filed this suit, complaining that Donna Grodner, who owns property to the east of the condominium development, entered the condominium development property and attempted to open the welded gate to allow golf cart traffic. The Board sought an injunction to prohibit further attempts at opening the gate.

In response, Grodner and other island property owners (collectively “the TRI owners”) claimed the welded gate blocked a servitude affording them a right of passage over the straight pathway to their properties. The TRI owners requested a mandatory injunction requiring the Board to open the gate and to cease and desist from obstructing access to the servitude of passage.

At the start of the bench trial for the injunctive relief, the TRI owners orally urged an exception of no right of action, arguing the Board owned none of the property at issue and therefore had no standing to sue. Testimony was then presented and evidence was introduced, including numerous plats showing the developments on the island. Thereafter, the trial court issued written reasons adopting the Board’s arguments on all issues and rejecting the TRI owners’ argument that the gate obstructs a servitude of passage that provides them access to their properties using the straight pathway. A judgment was signed denying the ^exception of no right of action and enjoining Grodner and those acting on her behalf from opening the westerly gate. The judgment also denied the relief requested by the TRI owners, specifically the mandatory injunction requiring the opening of the gate. The TRI owners now appeal.

RIGHT OF ACTION

The TRI owners first challenge the trial court’s denial of their exception of no right of action. While an exception is a pleading that must be made in writing, making the oral urging of the exception improper, either the trial or appellate court may, on its own motion, notice that a plaintiff does not have a right of action. See La. Code Civ. Pro., arts. 852 and 927. Consequently, the trial court did not abuse its discretion in addressing the exception, and that ruling is properly before this court for review. See Murrill v. Edwards, 613 So.2d 185, 189 (La. App. 1 Cir. 1992), writ denied, 614 So.2d 65 (La. 1993); see also Perkins v. Carter, 09-673 (La.App. 5 Cir. 12/29/09), 30 So.3d 862, 865; FIA Card Services, N.A. v. Gibson, 43,131 (La. App. 2 Cir. 3/19/08), 978 So.2d 1230, 1235.

The TRI owners contend the Board has no right of action in this matter because it is not an owner of any property at issue. An action can only be brought by a person having a real and actual interest that he asserts. La. Code Civ. Pro. art. 681. The function of an exception of no right of action is to determine whether the plaintiff belongs .to the class of persons to whom the law grants the cause of action asserted in the suit. JP Morgan Chase Bank, N.A. v. Boohaker, 14-0594 (La.App. 1 Cir. 11/20/14), 168 So.3d 421, 426. The exception assumes the petition states a valid cause of action for some person and tests whether the plaintiff has an interest in judicially enforcing the right asserted. The question is simply whether the plaintiff has a right to sue the defendant. Id.

The party raising the exception of no right of action bears the burden of proof. Evidence supporting or controverting an exception of no right of action is Inadmissible; however, in the absence of evidence to the contrary, the averments of fact in the pleadings will be taken as true. Whether a plaintiff has a right of action is a question of law and is reviewed de novo on appeal. Id.

Three Rivers Commons is a condominium regime established under the Louisiana Condominium Act. See La. R.S. 9:1121.101 et seq. Under the Act, portions of the condominium property (units) are subject to individual ownership, while the remainder of the property (the common elements) is owned in indivisión by all unit owners. See La. R.S. 9:1121.103; Davis v. Riverside Court Condominium Ass’n Phase II, Inc., 14-0023 (La.App. 4 Cir. 11/12/14), 154 So.3d 643, 648. The Board is an “association” created pursuant to the Act to manage and regulate the condominium. See La. R.S. 9:1121.103. The Act provides that an association may, subject to the provisions of the condominium declaration, “[ijnstitute ... litigation ... in its own name on behalf of itself or two or more unit owners on matters affecting the condominium.” La. R.S. 9:1123.102(4). The Three Rivers Commons condominium declaration does not restrict the Board from filing suit to protect the condominium’s interests. An injunction prohibiting opening the gate to golf cart traffic across the condominium development’s common space is a matter affecting the condominium. Therefore, the Board is a proper party to seek such relief. The trial court correctly overruled the exception of no right of action,

INJUNCTIVE RELIEF

The remaining issues raised in this appeal concern competing requests for in-junctive relief regarding the gate. Louisiana Constitution Article V, § 8(B) requires that “[a] majority of the judges sitting in a case must concur to render judgment.” We have reached different conclusions regarding the substantive issues raised with regard to what, if any, servitude exists on the island in favor of the TRI owners, and whether the gate obstructs that servitude. However, a ^majority agrees to partially reverse the trial court’s judgment and dissolve the prohibitory injunction, while a different majority agrees to affirm the trial court’s judgment denying the injunctive relief requested by the TRI owners.

CONCLUSION

The trial court’s judgment is reversed in part and the permanent injunction prohibiting Donna Grodner and those acting on her behalf from opening the easterly gate is dissolved. In all other respects, the trial court’s judgment is affirmed. Costs of this appeal are assessed equally between the appellants and the appellees.

AFFIRMED IN PART AND REVERSED IN PART.

Crain, J. agrees in part and dissents in part and assigns reasons.

Holdridge J., agrees in part and concurs in part and assigns reasons.

Welch J. concurs and dissent for reasons assigned by Judge Crain.

Calloway J. agrees in part and dissents in part and assigns reasons.

McClendon, J. agrees in part and concurs in part for reasons assigned by Judge Holdridge.

Appendix A

CRAIN, J.,

agreeing in part and dissenting in part.

hi agree the trial court correctly overruled the exception of no right of action for the reasons set forth in the per curiam opinion. Regarding the requests for injunc-tive relief, I believe the only issue raised is whether an all-purpose predial servitude of access or passage was created in favor of the properties on the island, as claimed by the TRI owners. I find the TRI owners proved the existence of that servitude. Thus, I agree with reversing the trial court’s judgment and dissolving the injunction that prohibited opening the gate. However, I believe the trial court erred in denying a mandatory injunction ordering the gate modified or removed to allow passage across the servitude. Therefore, I disagree with affirming the trial court’s denial of the mandatory injunction.

The TRI owners seek dissolution of the injunction prohibiting Grodner and those acting on her behalf from opening the welded easterly gate, a declaration that the TRI owners have a legal servitude of passage through the condominium development’s common area, and the issuance of a mandatory injunction ordering the removal of the gate. Resolution of these issues requires a determination of whether the welded gate obstructs a servitude of access or passage created for the benefit of the TRI owners through the condominium development’s common space.

Ascension Properties, Inc. developed the island in phases. The first phase involved the subdivision of lots on the western end of the island pursuant to a survey plat titled “Revised Final Plat of Three Rivers Island, First Filing, A Private ^Subdivision,” filed of record in Livingston Parish on December 12, 2003. The first filing plat referenced future filings for developing property east of the first filing development. In September 2006, four of the western-most lots in the first filing development were dedicated to a condominium development, Three Rivers Commons, with the declaration noting that the development was subject to such servitudes as shown in the records of Livingston Parish. The official map and declaration creating Three Rivers Commons specifically references the previously filed first filing plat. The property contiguous to, but east of, the first filing development was subdivided by filing the second survey plat titled “Revised Pinal Plat of Three Rivers Island, Second Filing, A Private Subdivision.”

Both the first and second filing plats delineate a “50’ ALL PURPOSE UTILITY SERVITUDE,” with the given name “THREE RIVERS ISLAND DRIVE.” When one subdivides property by plat- of survey that designates a-right-of-way or servitude of passage and thereafter sells the subdivided tracts by reference to said survey, a servitude of passage is created thereby. Bernard v. Broussard, 538 So.2d 1093, 1094 (La. App. 3 Cir.), writ denied, 542 So.2d 1381 (La. 1989). The deeds of the two condominium development members offered into evidence contain language subjecting those properties to the fifty-foot servitude by referencing the first filing plat. The TRI owners’ deeds also contain language subjecting their properties to ’ the fifty-foot servitude either by referencing the first and second filing plats, or by attaching plats to the' deeds showing the fifty-foot servitude. Thus, these recorded plats and deeds establish the fifty-foot servitude affecting all properties on Three Rivers Island. See Bernard, 538 So.2d at 1094-95.

• The Board acknowledges that the referenced plats show a utility servitude, but counters that a predial servitude of passage in favor of the TRI owners is not created. The use and extent of a predial servitude is regulated by the title creating 13it, and absent such regulation, by the rules in Louisiana Civil Code articles 698 through 774, See La. Civ. Code art. 697; Dupont v. Hebert, 06-2334 (La.App. 1 Cir. 2/20/08), 984 So.2d 800, 807, unit denied, 08-0640 (La. 5/9/08), 980 So.2d 695. Generally, doubt as to the existence, extent, or manner of exercise of a predial servitude must be resolved in favor of the servient estate. See La. Civ. Code art. 730.

To prove the servitude, the TRI owners rely on dedication language included in the first and second filing plats and the property deeds which reference them. The following dedication language, appears under the heading “PRIVATE DEDICATION” on both survey plats:

THE AREA SHOWN AS ALL-PURPOSE SERVITUDE IS HEREBY DEDICATED IN PERPITUITY FOR ACCESS TO THE LOTS SHOWN HEREON, DRAINAGE, EMERGENCY VEHICLES AND UTILITY COMPANIES, AND IS DEDICATED FOR THE USE BY ANY PUBLIC OR PRIVATE ENTITY RELATING HEALTH AND SAFETY, NO TREES, SHRUBS, OR OTHER PLANTS MAYBE PLANTED, NOR SHALL ANY BUILDING, FENCE, STRUCTURE, OR IMPROVEMENTS BE CONSTRUCTED OR INSTALLED WITHIN-OR OVER THIS PRIVATE SERVITUDE SO AS TO PREVENT OR UNREASONABLY- INTERFERE WITH THE PURPOSE FOR WHICH THE SERVITUDE IS GRANTED. (Emphasis added.)

As a conventional servitude, the interpretation of the dedication language is guided by the rules for contractual interpretation. See La. Civ. Code arts. 654 and 697; Bonfanti v. City of Baton Rouge, 15-0549, 2015 WL 6951280 (La. App. 1 Cir. 11/9/15). The reasonable intention of the parties to a contract cannot be assumed, but must be sought by examining the words of the contract itself. Clovelly Oil Co., LLC v. Midstates Petroleum Co., LLC, 12-2055 (La. 3/19/13), 112 So.3d 187, 192. “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.” La. Civ. Code art. 2046. Common intent is determined in accordance with the general, ordinary, plain and popular meaning of the words used in the contract. Clovelly, 112 So.3d at 192. When a clause in a contract is clear and unambiguous, the letter of that clause should not be disregarded under the pretext of pursuing its spirit, as it is not the duty of the courts to bend the meaning of the words of a contract into harmony with a supposed reasonable intention of the parties. Id.

Courts should refrain from construing a contract in a manner that leads to absurd consequences. La. Civ. Code art. 2046. Most importantly, a contract must be interpreted in a common-sense fashion, according the words of the contract their common and usual significance. Clovelly, 112 So.3d at 192; see also La. Civ. Code art. 2047. A contract provision that is susceptible to different meanings must be interpreted with a meaning that renders the provision effective, and not with one that renders it ineffective. La. Civ, Code art. 2049. Each provision in a contract must be interpreted in light of the other provisions so that each is given the meaning suggested by the contract as a whole. La. Civ. Code art. 2050.

A plain reading of the dedication language reveals two distinct dedications. The first sets forth specific uses separated by commas, which suggests a list of agreed uses for the servitude — “for access to the lots shown hereon, drainage, emergency vehicles and utility companies.” The comma after “hereon” distinguishes the use for “access” from the other uses for which the servitude is granted, namely, “drainage, emergency vehicles and utility companies.” This interpretation is supported by the fact that the word “access” creates a use that is of a completely different character than, for example, “drainage.” A servitude of “access” is not necessary to create a servitude of “drainage.” The uses are separate and distinct.

The second dedication is separated from the first by the phrase “and is dedicated” and is more general. It is “for the use by any public or private entity relating [to.] health and safety.” The dedication language clearly separates the two dedications, such that the use for health and safety does not modify the uses set |fiforth in the first dedication, meaning public or private entities can use the servitude for' health and safety related purposes, while the uses set forth in the first dedication “for access to the lots shown hereon, drainage, emergency vehicles and utility companies” are not limited to health and safety related purposes.

This construction is consistent with:the plain language of the dedication and avoids absurd results, like limiting the use of the servitude by “utility companies,” such as cable, satellite or telephone companies, to only health and safety related purposes. This interpretation also eliminates the need to reword the dedication to achieve the Board’s suggested interpretation, which is the dedication only grants access for drainage, access for emergency vehicles, and access for utility companies. The Board’s interpretation requires both ignoring the comma placed after the phrase “access to the lots shown hereon” and inserting “for” before the words “drainage,” “emergency vehicles,” and “utility companies.” I cannot, under the guise of interpretation, alter the dedication language to achieve the result advocated by the Board, when reading it as written, with the punctuation and words provided, results in an unambiguous and reasonable meaning.

The dedication language on the first and second filing plats, together with the subsequent sale of subdivided properties by reference to those plats, creates an all-purpose, predial servitude of access or passage in favor of the properties on the island, including the lots owned by the TRI owners. The servitude allows the TRI owners to access their properties, including crossing the condominium development’s common space. The trial court erred in finding otherwise.

Generally, an injunction will issue only in its prohibitory form, but when a party obstructs another in the enjoyment of a real right, the latter may be entitled to a prohibitory injunction restraining the disturbance and also a mandatory | (injunction for the removal of the obstruction. Concerned Citizens for Proper Planning, LLC v. Parish of Tangipahoa, 04-0270 (La.App. 1 Cir. 3/24/05), 906 So.2d 660, 664. The parties do not dispute that the servitude area is blocked by a fence connected to the easterly gate, which is welded shut. The TRI owners have limited their request for injunctive relief specifically to the welded-shut gate, which the record establishes clearly and unreasonably interferes with a permitted use of the servitude — access to the properties on the island. Thus, the TRI owners are entitled to a mandatory injunction ordering the Board to remove or modify the gate to allow passage over the servitude. For these reasons, I agree with dissolving the permanent injunction and disagree with denying the mandatory injunction.

CALLOWAY, J.,

agreeing in part and dissenting in part.

Iil agree the trial court correctly overruled the peremptory exception raising the objection of no right of action. I agree with the trial court that the Board of the incorporated owner’s association for Three Rivers Commons is the proper party to seek relief in this matter.

As to the competing requests for injunc-tive relief, which raise the issues of whether any servitude exists on the island in favor of the TRI owners, and whether the welded-shut gate obstructs such a servitude, I disagree with reversing and dissolving the injunction that prevents the TRI owners from attempting to open the welded-shut gate. I do not find that the TRI owners proved the existence of an “all-purpose” predial servitude of access or passage in favor of the properties on the island. Based on my review of the record, there is only one servitude — a fifty-foot utility servitude, which does not allow the TRI owners access to this property for “all purposes.” I believe the TRI owners should be prevented from attempting to open the welded-shut gate on the basis of an “all-purpose” servitude. Thus, I disagree with the per curiam opinion to the extent it recognizes the all-purpose servitude and partially reverses the trial court’s judgment dissolving the prohibitory injunction.

|2I agree with affirming the denial of the request for a mandatory injunction ordering the opening of the welded-shut gate. I do note, however, that any structure preventing access to the fifty-foot utility servitude — such as a welded-shut gate — interferes with the purpose for which the utility servitude was granted and, in my opinion, is prohibited by the language of the servitude. However, the TRI owners are not entitled to access or passage through the property based on the premise that an “all-purpose” predial servitude exists in their favor. Therefore, I agree with the per curiam opinion to the extent it affirms the trial court’s judgment denying the mandatory injunction and rendering judgment ordering Three Rivers Commons to remove or modify the welded-shut gate to allow access and passage in favor of the TRI owners.

For these reasons, I respectfully agree in part and dissent in part from the per curiam opinion.

HOLDRIDGE, J.,

agreeing in part and concurring in part.

hi agree that the trial court correctly overruled the exception of no right of action for the reasons set forth in the per curiam opinion. Regarding the requests for injunctive relief, I concur with the per curiam opinion which reversed the trial court with regard to the injunction prohibiting the plaintiffs-in-reconvention from opening the welded-shut gate. The welded-shut gate is prohibited by the language of the “50’ ALL PURPOSE UTILITY SERVITUDE” which prohibits any structure or improvement from being constructed or installed over the private servitude. A welded-shut gate would clearly interfere with the purpose for which the servitude was granted and is prohibited by the language of the servitude.

I agree with the trial court that the mandatory injunction requested by the plaintiffs-in-reconvention should be denied. The plaintiffs-in-reconvention failed to carry their burden of proving that a mandatory injunction should be issued to allow them the unfettered right to use the servitude in question.

For these reasons, I respectfully agree in part and concur in part from the per curiam opinion.

      . For illustrative purposes, the pathways are shown on the diagram attached hereto as Appendix A. The testimony at trial indicated that Three Rivers Commons’ property extends to the line to the right of lot "4-A” on the diagram.

      . The TRI owners initially asserted the servitude of passage was established by an instrument filed in the conveyance records of Ascension Parish, which allegedly created a servitude of parldng and passage extending from the parking lot in Ascension Parish, over the bridge to the island, through the condominium development's common space, and to the end of the island. That instrument was attached to the TRI owner’s answer and petition for cross claim, but was never introduced into evidence. At trial, the TRI owners explained the Ascension-filed instrument was referenced only "for background,” "to show that the servitude started in the parking lot and came all the way through ... to the end of the island” and, in fact, objected to all documents listed on the Board’s potential exhibit list "dealing with the parking lot over in Ascension Parish.”

      . The TRI owners stated that they were urging exceptions of no right of action and no cause of action, and the trial court’s judgment denies both exceptions. On appeal, the TRI owners argue only the denial of the exception of no right of action; therefore we reference 'only the exception of no right of action herein.

      . A mandatory injunction is one that commands the doing of some action, and cannot be issued without a hearing on the merits. City of Baton Rouge/Parish of East Baton Rouge v. 200 Government Street, LLC, 08-0510 (La.App. 1 Cir. 9/23/08), 995 So.2d 32, 36, writ denied, 08-2554 (La. 1/9/09), 998 So.2d 726. Since the jurisprudence has established that a mandatory preliminary injunction has the same basic effect as a permanent injunction, the party seeking a mandatory injunction must show by a preponderance of the evidence at an evidentiary hearing that he is entitled to the injunction. Concerned Citizens for Proper Planning, LLC, 906 So.2d at 664.

      . Hon. Curtis A. Calloway, retired, is serving as judge ad hoc by special appointment of the Louisiana Supreme Court.