text:
    STATE of Louisiana v. Eric Dushon GUILLORY.
    No. 2009-KK-1350.
    Supreme Court of Louisiana.
    Nov. 20, 2009.
   PER CURIAM.

11 On April 1st, 2008, Officer Todd Chad-dick of the Lake Charles police department and assigned to the Calcasieu Parish drug task force, was investigating a complaint from a probation officer who had once lived in the area about increased drug and gang activity on the 1000 block area of Giovanni Street in Lake Charles. Driving down Giovanni St in an unmarked green Chevy Tahoe, the officer observed a gray SUV in the parking lot of 1005 Giovanni Street with the driver’s side door open. A number of individuals were near the SUV, including two individuals standing in front of the SUV, and one individual standing outside of the passenger side door whom the officer recognized as a drug dealer in the area. Inside of the vehicle, the defendant Eric Guillory was seated in the driver’s seat, along with another individual in the passenger seat who was hanging out the passenger window which appeared to be open.

Officer Chaddick, noting that the individuals appeared to be “exchanging something or concentrating on something between them”, requested backup and continued to observe the events unfold. At that point, the man standing outside of the passenger side door noticed the officer and mouthed the words “that’s the police.” He and several other individuals standing around the SUV in the parking lot then |2began walking off quickly. Believing he was witnessing a drug transaction, the officer then got out of the vehicle and approached the defendant in the SUV whom, upon approaching, he recognized as someone he had arrested on a previous drug charge in 2003 when the defendant sold drugs three times to an undercover officer.

While Chaddick was approaching, the defendant and his passenger began attempting to clear something from the armrest of the vehicle. When Chaddick arrived at the SUV, he observed white crumbs on the armrest, a piece of U.S. currency in the center console, and observed that the passenger was physically shaking and that his eyes were very wide — “about to bulge out.” For his part, the defendant avoided eye contact with the officer.

Believing the white crumbs on the armrest were the residue of crack cocaine, Chaddick asked the defendant to exit the vehicle. The defendant then exited with his back towards the officer, stuffing something into his front waistband as he exited. Unsure of what the defendant had stuffed into his waistband, and fearing it might be a weapon, the officer put his hands on the defendant’s waistband and pushed the defendant up against the vehicle. He patted the defendant down and felt a piece of plastic sticking out of the defendant’s front waistband. Believing this plastic bag contained drugs since it was “consistent with what they keep drugs in a lot of times” the officer removed it and discovered what appeared to be crack cocaine in the bag.

An arrest of the defendant followed. The search incident to arrest yielded no further apparent drugs on the defendant’s person. A search of the vehicle incident to the arrest, albeit without a warrant, yielded two rocks of crack in the back passenger | ;icompartment of the SUV that apparently had been swept off of the armrest earlier when the officer approached the vehicle.

The trial court granted the defendant’s motion to suppress the evidence seized from the SUV, finding that the protective frisk by the officer was unauthorized. The Court of Appeal denied the State’s writ, elaborating that while the protective frisk was authorized under the circumstances, the officer failed to articulate sufficient reasons why he believed the object he felt in the defendant’s waistband was contraband.

We now grant certiorari and reverse for the following reasons.

The officer was clearly permitted to observe the events in the parking lot that unfolded — his parking of his vehicle nearby and calling for backup did not, as the defendant has argued, trigger a Terry stop. Officers, of course, have the absolute right to approach and engage anyone in conversation — so long as they do not apply force to detain the individual. This right necessarily implies the right to lawfully observe.

The Terry stop was then initiated when the officer went beyond simply asking questions and observing the defendant — namely, the moment when the officer asked the defendant to exit his parked SUV. With regards to this Terry stop, the facts certainly gave rise to the necessary reasonable suspicion to initiate it. These facts included 1) a tip from a parole officer that there was increased drug and gang activity 14in the area, 2) that the area was a “high crime area and a place ... known for drug activity”, 3) the presence of a known drug dealer outside of the passenger side door of the SUV and a formerly arrested drug dealer sitting in the driver’s seat (the defendant), 4) the presence of several individuals around a single SUV “exchanging something or concentrating on something between them”, 5) the attempt of several individuals to flee upon one of the individuals noticing that a police officer was present, 6) the defendant and his passenger sweeping off the armrest quickly as the officer approached along with the residue of white crumbs that remained, 7) the passenger’s apparent condition that rendered his eyes bulging, and 8) the defendant’s unwillingness to look the officer in the eye.

As the defendant exited the vehicle with his back to the officer, he began stuffing something into his waistband. Despite the trial court’s ruling, Officer Chaddick’s testimony clearly reflects a concern that the defendant was in possession of a weapon — the officer noted as follows: “When I removed him from the vehicle, he was trying to hide something from me. I didn’t know if it was evidence or a weapon, and I patted him down based on the fact that he could be hiding a weapon.” Moreover, since the defendant’s back was to the officer, his concerns and course of action were eminently reasonable and the protective frisk was proper.

The officer described the protective frisk that ensued as follows, stating that he “felt the piece of plastic out of his front waistband, which is — I know consistent with what they keep drugs in a lot of times.” Upon feeling the plastic bag hanging out, and on belief that this bag contained evidence of a crime, the officer removed it and secured it. The Court of Appeal’s ruling as well as Judge Pickett’s dissent centered on whether the officer, in these statements, articulated sufficient reasons as 1 Bto why he believed the object in the Defendant’s waistband was contraband, and thus as to whether the “plain feel” exception applied.

Recent cases from this Court support the notion that the plain feel exception applies when an officer feels a plastic bag containing a rock-like substance.

In State v. Broussard, police officers observed an undercover agent purchase a rock of cocaine with a marked $20 bill from an individual and watched as the individual briefly got into a vehicle with the defendant. Upon belief that the individual had given the defendant the marked bill, and suspecting a drug transaction involving several individuals, the defendant driver was soon detained under a Teny stop this court deemed proper. The defendant was then properly frisked by the officer out of fear that the defendant was carrying a weapon; this frisk resulted in the officer discovering “the feel of the lumps and the crinkle of plastic in the respondent’s pocket” and a belief by the officer that he had discovered rocks of cocaine, thus leading to the defendant’s arrest. Under the “plain feel” exception established by Minnesota v. Dickerson, this Court found the evidence properly seized and admissible.

Similarly in State v. Adams a police officer’s valid protective frisk of the defendant revealed a plastic protruding over the defendant’s waistband wrapped around thirty-one rocks of cocaine. This Court found that whether the officer had visibly seen this protrusion during the frisk or felt it during the protective frisk, either | nwas legally sufficient to support the evidence’s admissibility under either plain view or plain feel.

The one caveat in the current case before the Court is that the record does not show that the officer felt anything “rock” like within the plastic bag in the defendant’s waistband. Nonetheless, it is difficult to imagine a legitimate substance being kept within plastic wrapping in the waistband of a citizen; therefore, the plain feel of the plastic bag by the officer combined with the circumstances in the plain view of the officer leading up to the plain feel discovery of the bag were sufficient to trigger probable cause to seize the bag upon its plain feel. Upon seizure and recognition by the officer that the bag’s contents were a white powdery substance, probable cause for the arrest was triggered.

With regards to the warrantless vehicle search, the U.S. Supreme Court’s holding in Gant v. Arizona is the latest statement on the applicable law: “circumstances unique to the vehicle context justify a search incident to a lawful arrest when it is ‘reasonable to believe evidence relevant to the crime of arrest might also be found in the vehicle.’ ” Given that the officer observed the defendant and his passenger sweep off something from the armrest of the SUV, with white crumbs remaining in his view, and given that the defendant was arrested for possession of 17crack cocaine, the same substance the officer had reason to believe was on the armrest (and actually was), it was reasonable for the officer to search the vehicle for the crack cocaine that was swept off the armrest as it constituted “evidence relevant to the crime of arrest.”

DECREE

For the reasons expressed herein, the trial court’s ruling granting the defendant’s motion to suppress is reversed and the matter is remanded for proceedings not inconsistent with this opinion.

REVERSED AND REMANDED.

KIMBALL, J., would grant and docket.

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

      . Subsequent lab testing indicated that the plastic bag in fact did not contain crack cocaine. It is unclear what the substance actually was.

        . Unlike the substance in the plastic bag, the substances found in the SUV were confirmed by lab report to be crack cocaine.

      . State v. Johnson, 01-2436 (La. 1/25/02); 806 So.2d 647, 648 (“The police ... have the right to engage anyone in conversation, even without reasonable grounds to believe that they have committed a crime ... It is only when the police come upon an individual with such force that, regardless of the individual’s attempts to flee or elude the encounter, an actual stop of the individual is virtually certain, that an ‘actual stop’ of the individual is ‘imminent.’ ”)

      . 00-3230 (La.5/24/02); 816 So.2d 1284.

      . Id. at 1289.

      . 508 U.S. 366, 113 S.Ct. 2130, 124 L.Ed.2d 334(1993).

        .Broussard, 816 So.2d at 1289.

      .01-3231 (La 1/14/03); 836 So.2d 9.

      . Id. at 14.

      . While it seems quite reasonable for the officer to assume the substance he found was crack cocaine, the sale of a false controlled dangerous substance is also against the law— thus probable cause at this point is indisputable. La. R.S. 40:971.1(A) ("It shall be unlawful for any person to produce, manufacture, distribute, or dispense any substance which is represented to be a controlled dangerous substance and which is an imitation controlled dangerous substance, or any controlled dangerous substance which is a counterfeit controlled dangerous substance.") That the defendant was not charged with distribution of a false CDS is irrelevant to the officer's objective probable cause inquiry.

      .-U.S.-,-, 129 S.Ct. 1710, 1719, 173 L.Ed.2d 485 (2009) (adopting the rationale of Justice Scalia's concurrence in Thornton v. U.S., 541 U.S. 615, 632, 124 S.Ct. 2127, 158 L.Ed.2d 905 (2004)).


source: Caselaw Access Project

author:
PER CURIAM.
     VICTORY, J.,

license: Public Domain

text:
    In re Katherine J. KNAPP.
    No. 2009-OB-2253.
    Supreme Court of Louisiana.
    Nov. 20, 2009.
   ON APPLICATION FOR ADMISSION TO THE BAR

PER CURIAM.

After reviewing the evidence and considering the law, we conclude petitioner, Katherine J. Knapp, is eligible to be admitted to the practice of law in Louisiana.

ADMISSION GRANTED.

VICTORY, J.,

dissents and would re-

mand the matter to the Committee on Bar Admissions Panel on Character and Fitness to conduct an investigation into the qualifications of petitioner to be admitted to the bar.

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


text:
    STATE of Louisiana v. Lloyd RICHARD.
    No. 2009-KK-2504.
    Supreme Court of Louisiana.
    Nov. 23, 2009.
   In re Richard, Lloyd; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of St. James, 23rd Judicial District Court Div. A, Nos. 08-F-005263, 08-F-005264; to the Court of Appeal, Fifth Circuit, No. 09-K-895.

Denied.


text:
    In re APPEAL OF DECISION OF the DISCIPLINARY BOARD No. 09-PDB-017.
    No. 2009-OB-1923.
    Supreme Court of Louisiana.
    Nov. 25, 2009.
   In re Taylor, Percy M.; — Plaintiff; Applying For Applying For Appeal of Decision of the Disciplinary Board No. 09-PDB-017, No. 09-PDB-017.

Leave to appeal denied.


text:
    Carl and Netrick VAUGHN, Individually and on Behalf of their Minor Children, Justin Vaughn and Jasmine Vaughn. v. The CITY OF BATON ROUGE, Parish of East Baton Rouge and the State of Louisiana, Through the Department of Public Works and Water Resources Division.
    No. 2009-CC-1985.
    Supreme Court of Louisiana.
    Nov. 25, 2009.
   In re Louisiana State of; Transportation & Devi. Dept, of; — Defendant(s); Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. F, No. 572,561; to the Court of Appeal, First Circuit, No. 2009 CW 0930.

Granted and remanded to the court of appeal for briefing, argument and opinion.


text:
    STATE ex rel. Ronald E. COLEMAN v. STATE of Louisiana.
    No. 2009-KH-0341.
    Supreme Court of Louisiana.
    Nov. 25, 2009.
   In re Coleman, Ronald; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Rapides, 9th Judicial District Court Div. G, No. 231,988; to the Court of Appeal, Third Circuit, No. CW 08-01154.

Writ granted in part; otherwise denied; case remanded to the district court. Relator’s filing is not governed by the Prison Litigation Reform Act, R.S. 15:1181 et seq. Accordingly, the district court is directed to proceed in relator’s case without assessing fees under the PLRA.


text:
    STATE ex rel. Russell PAYTON v. STATE of Louisiana.
    No. 2009-KH-0351.
    Supreme Court of Louisiana.
    Nov. 25, 2009.
   In re Payton, Russell; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. D, No. 558-545; to the Court of Appeal, First Circuit, No. 2008 CW 2644.

Writ granted in part; otherwise denied. The Louisiana State Police Crime Lab is ordered to provide relator with an estimate of the costs of reproducing public records relator has requested and to which relator is entitled. La. Const, art. XII, section 3; R.S. 44:31; R.S. 44:31.1; State ex rel. Leonard v. State, 96-1889 (La.6/13/97), 695 So.2d 1325; State ex rel. Level v. State, 99-2266 (La.12/17/99), 751 So.2d 869; Range v. Moreau, 96-1607 (La.9/3/96), 678 So.2d 537. In all other respects, the application is denied.

WEIMER, J., recused.


text:
    Tiffany M. PRUITT, Connie Pruitt and Bobby Pruitt v. Glenn C. NALE, Sidney Stokes d/b/a Sidney Stokes Timber, Sidney Stokes & Son, L.L.C., Empire Indemnity Insurance Company and State Farm Mutual Automobile Insurance Company.
    No. 2009-CC-2073.
    Supreme Court of Louisiana.
    Nov. 25, 2009.
   In re Empire Indemnity Insurance Company; Nale, Glenn C.; Sidney Stokes & Son, L.L.C.; — Defendant(s); Applying For Supervisory and/or Remedial Writs, Parish of Morehouse, 4th Judicial District Court Div. H, No. 2008-111; to the Court of Appeal, Second Circuit, No. 44953-CW.

Denied.


text:
    Larry J. WILLIAMS, Jr. v. HOTFAX SERVICES, L.L.C., TNT Club and Restaurant, Inc., and Mearn Ray Tanner.
    No. 2009-CC-2068.
    Supreme Court of Louisiana.
    Nov. 25, 2009.
   In re Tanner, Mearn Ray; TNT Club and Restaurant, Inc.; — Defendant(s); Applying For Supervisory and/or Remedial Writs Office of Workers Compensation, District 05, No. 06-08733; to the Court of Appeal, First Circuit, No. 2009 CW 0899.

Denied.


text:
    MURPHY OIL USA, INC. v. LOU-CON, INC.
    No. 2009-CC-2064.
    Supreme Court of Louisiana.
    Nov. 25, 2009.
   In re Murphy Oil USA Inc.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. Bernard, 34th Judicial District Court Div. A, No. 94-437; to the Court of Appeal, Fourth Circuit, No. 2009-C-0871 and 2009-C-0872.

_ . , Denied.


text:
    Leonard CARDENAS III v. Belinda Moore Patin CARDENAS.
    No. 2009-CC-2061.
    Supreme Court of Louisiana.
    Nov. 25, 2009.
   In re Cardenas III, Leonard; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, The Family Court, No. 159,086; to the Court of Appeal, First Circuit, No. 2009 CW 0796.

Denied.

KIMBALL, C.J., recused.

JOHNSON, J., would grant.


text:
    Waylon S. LOPEZ, et al. v. Eric W. EDWARDS, et al.
    No. 2009-CC-2058.
    Supreme Court of Louisiana.
    Nov. 25, 2009.
   In re Lopez, Waylon S. et ah; Smith, Wendi E.; — Plaintiffs); Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. N, No. 08-4024; to the Court of Appeal, Fourth Circuit, No. 2009-C-0981.

Denied.


text:
    STATE ex rel. Kenneth R. BILBO v. STATE of Louisiana.
    No. 2009-KH-0397.
    Supreme Court of Louisiana.
    Nov. 25, 2009.
   In re Bilbo, Kenneth R.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Calcasieu, 14th Judicial District Court Div. A, Nos. 16111-05, 11903-07; to the Court of Appeal, Third Circuit, No. KH 09-00114.

Denied. Moot.


text:
    STATE of Louisiana v. Patricia L. SIMMONS.
    No. 2009-KK-2069.
    Supreme Court of Louisiana.
    Nov. 25, 2009.
   In re Simmons, Patricia L.; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. B, No. 476-374; to the Court of Appeal, Fourth Circuit, No. 2009-K-0598.

Not considered, not timely filed.


author: HUGHES, J. McDONALD, J.,

text:
    PARISH of IBERVILLE SALES TAX DEPARTMENT v. CITY of ST. GABRIEL, Louisiana.
    No. 2008 CA 1780.
    Court of Appeal of Louisiana, First Circuit.
    July 22, 2009.
    Russell States, Jr., Lake Charles, LA, for Plaintiff/Appellee, Parish of Iberville Sales Tax Dept.

      L. Phillip Canova, Jr., Plaquemine, LA, for Defendant/Appellant, City of St. Gabriel.
    Before CARTER, WHIPPLE, PARRO, KUHN, GUIDRY, PETTIGREW, DOWNING, GAIDRY, McDONALD, McClendon, hughes, and welch, JJ.
   HUGHES, J.

|2In this litigation addressing the validity of a municipal sales tax ordinance, the district court issued a permanent injunction against a city, enjoining the collection of the tax. For the reasons that follow, we reverse the district court judgment and dissolve the permanent injunction.

FACTS AND PROCEDURAL HISTORY

On April 18, 1996 the mayor and aider-men of the City of St. Gabriel passed a resolution calling for a special election to be held July 20, 1996 to authorize the city to collect a 1 % sales and use tax. The tax was approved in a special election held on July 20, 1996 and thereafter became St. Gabriel Ordinance 1996-10. The city’s right to collect this tax was challenged in a suit brought by several local chemical companies, and in due course, the district court upheld the tax. On review by this court in Ciba-Geigy Corp. v. Town of St. Gabriel ex rel. Grace, 98-0935 (La.App. 1 Cir. 4/1/99), 740 So.2d 147, writ granted, 99-1223 (La.5/28/99), 743 So.2d 676 (application for certiorari dismissed by the parties on October 13, 1999), this court held that the tax imposed by Ordinance 1996-10 exceeded the then maximum limit of 4 % for sales and use taxes, as set forth in LSA-R.S. 33:2721.6(A)(2), and was therefore unlawful.

Thereafter, in a settlement agreement, the parties agreed that the city would collect only that portion of the tax authorized by Ordinance 1996-10 that did not exceed the 4 % statutory limit, which portion was Jé %. Accordingly, on November 18, 1999, the city passed Ordinance 1999-3 to | s“roll back” the 1 % sales and use tax levied by Ordinance 1996-10 to the rate of Jé %.

Effective July 1, 1999, the legislature amended LSA-R.S. 33:2721.6(A)(2) in 1999 La. Acts, No. 679, § 1, to increase the statutory maximum rate of sales and use taxes set forth therein from 4 % to 5 %. Thereafter, in 2006, the Parish of Iberville passed an additional 1 % sales and use tax, which was approved by the voters. This tax was specified as being implemented in Jé % increments, with Jé % levied beginning January 1, 2007, another Jé % levied beginning January 1, 2008, and the full 1 % levied beginning January 1, 2009. This tax was further designated to be allocated between the parish and municipal governments of Iberville Parish as follows: Iber-ville Parish, 52.4541 %; City of Plaque-mine, 23.6507 %; City of St. Gabriel, 8.3903 %; Town of White Castle, 6.5153 %; Village of Maringouin, 4.2253 %; Village of Rosedale, 2.5211 %; and Village of Grosse Tete, 2.2432 %.

On November 15, 2007, St. Gabriel adopted Ordinance 2007-0001-1155, “rescinding” Ordinance 1999-3, ratifying all provisions of Ordinance 1996-10, and declaring that Ordinance 1996-10 “remainfs] in full force and effect as of its date.” Ordinance 2007-0001-1155 was further de-dared to become effective immediately upon the signature of the mayor. St. Gabriel Mayor George L. Grace, Sr. signed the ordinance on the same date, and in December of 2007 he requested the Iber-ville Parish sales tax collector to begin collecting the full 1 % sales and use tax levied by Ordinance 1996-10.

On December 13, 2007, the instant suit was filed by the Parish of Iberville Sales Tax Department (“Iberville Sales Tax Department”) seeking to enjoin St. Gabriel’s collection attempts. The city responded by filing a ^petition for nullity of judgment, contending the decision rendered by this appellate court in Ciba-Geigy Corp. v. Town of St. Gabriel ex rel. Grace, supra, should be vacated and set aside.

Following a hearing on the issue of in-junctive relief, the district court ordered, adjudged, and decreed that a permanent injunction issue, restraining, enjoining, and prohibiting the City of St. Gabriel from requesting or demanding that the Iberville Sales Tax Department collect the tax levied by Ordinance 1996-10, and ordering that the Iberville Sales Tax Department continue to collect the tax in accordance with Ordinance 1999-3. St. Gabriel has appealed this judgment, asserting the following assignments of error: (1) St. Gabriel is authorized by the constitution and applicable statutes to impose the tax as per Ordinance 1996-10 and it was error for the district court to grant an injunction in favor of the Iberville Sales Tax Department; (2) the St. Gabriel tax does not exceed any constitutional or statutory cap or limitation as a matter of law, and it was error for the district court to imply that the St. Gabriel tax has done so; and (3) Ciba-Geigy Corp. v. Town of St. Gabriel ex rel. Grace, supra, was incorrect as a matter of law and should have been recognized as not binding on the district court.

DISCUSSION

Local governing authorities in this state are empowered to levy and collect sales and use taxes by Louisiana Constitution, Article VI, Section 29, which provides, in pertinent part:

(A) Sales Tax Authorized. Except as otherwise authorized in a home rule charter as provided for in Section 4 of this Article, the governing authority of any local governmental | .^subdivision [ ] or school board may levy and collect a tax upon the sale at retail, the use, the lease or rental, the consumption, and the storage for use or consumption, of tangible personal property and on sales of services as defined by law, if approved by a majority of the electors voting thereon in an election held for that purpose. The rate thereof, when combined with the rate of all other sales and use taxes, exclusive of state sales and use taxes, levied and collected within any local governmental subdivision, shall not exceed three percent.
(B) Additional Sales Tax Authorized. However, the legislature, by general or by local or special law, may authorize the imposition of additional sales and use taxes by local governmental subdivisions or school boards, if approved by a majority of the electors voting thereon in an election held for that purpose.

A sales and use tax within the contemplation of LSA-Const. art. VI, § 29(A) is self-executing by the local governmental taxing authority, although the constitution caps that authority at 3 %. See Circle Food Stores, Inc. v. City of New Orleans, 620 So.2d 281, 283 (La. 1993). Any local governmental sales and use taxes that exceed 3 % are invalid and unconstitutional unless authorized by the legislature and approved by the voters as required by LSA-Const. art. VI, § 29(B). See Reed v. City of New Orleans, 593 So.2d 368, 371 (La.1992).

Additional sales and use taxes authorized by the legislature under LSA-Const. art. VI, § 29(B) include those at issue herein: LSA-R.S. 33:2711, granting taxing power to municipalities, and LSA-R.S. 33:2721.6, granting taxing power to the governing authority of any parish or any school board. At the time Ordinance 1996-10 was enacted, these statutes provided in pertinent part as follows:

§ 2711. Tax authorized; rate

|fiA. Any incorporated municipality [] of the state is hereby authorized to levy and collect a sales and use tax not in excess of two and one-half percent as hereinafter set forth:
(1) One and one-half percent as authorized by Act No. 722 of the 1974 Regular Session of the Louisiana Legislature; and
(2) Except in those municipalities in the parishes of Concordia, Catahoula, LaSalle, Caldwell, Franklin, and Tensas, an additional one percent sales and use tax, authorized by Article VI, Section 29(B) of the Constitution of Louisiana, which one percent sales and use tax shall be in addition to all other sales and use taxes which any incorporated municipality is authorized to levy as of the effective date of this Act.
However, the ordinance imposing the tax shall be adopted by the governing authority of the incorporated municipality only after the question of the imposition of the tax has been submitted to the qualified electors of the incorporated municipality at an election conducted in accordance with the general election laws of the state of Louisiana, and a majority of those voting in the election shall have voted in favor of the proposition to impose such additional sales and use tax.
§ 2721.6. Additional sales and use tax authorized
A. (1) In addition to any other authority granted by a home rule charter or otherwise, the governing authority of any parish or school board may levy and collect an additional tax upon the sale at retad, the use, the lease or rental, the consumption, and the storage for use or consumption of tangible personal property and on sales of services as defined by law if approved by a majority of electors voting therein in an election held for that purpose.
(2) The rate thereof, when combined with the rate of all other sales and use taxes, exclusive of state sales and use taxes and law enforcement district sales and use taxes levied and collected within any parish or municipality, shall not exceed four percent. Any parish or school board levying or presently authorized to levy an additional sales and use tax which exceeds the four percent level described above shall not be authorized by this Section to levy an additional sales tax.
B. In accordance with the provisions of Section 29(B) of Article VI of the Constitution of Louisiana, the additional sales and use tax may exceed the limitation found in Section 29(A) of Article VI of the Constitution of Louisiana by the amount authorized herein.

(Emphasis added.)

|7In Ciba-Geigy Corp. v. Town of St. Gabriel ex rel. Grace, the sole issue before this court was whether LSA-R.S. 33:2721.6(A)(2)’s statutory limit on the total rate of all sales and use taxes “collected within any parish or municipality” limited the amount of sales and use taxes collectable by the City of St. Gabriel; the court held that it did. Ciba-Geigy Corp. v. Town of St. Gabriel ex rel. Grace, 98-0935 at p. 5, 740 So.2d at 150. A dissent to the majority opinion was authored by Chief Judge Carter, stating:

LSA-R.S. 33:2721.6 limits the authority of parish government bodies and school boards, but not municipalities. The provision of Section A(2) “within any parish or municipality, shall not exceed four percent,” in my opinion, is not a limit on municipalities, but is only a limit on a parish governing body or school board. This is former demonstrated by the following language of the statute which provides, “Any parish or school board levying or presently authorized to levy an additional sales and use tax which exceeds the four percent level described above shall not be authorized by this Section to levy an additional sales tax.” Clearly, municipalities are not prevented from exceeding the four percent level.

(Emphasis added.)

After careful re-examination of this issue in connection with the instant appeal, we believe the majority opinion rendered in Ciba-Geigy Corp. v. Town of St. Gabriel ex rel. Grace was incorrect, and we agree with the rationale expressed in the dissenting opinion.

Municipalities are authorized by LSA-R.S. 33:2711 to impose sales and use taxes not to exceed 2½ %, in addition to those allowed by LSA-Const. art. VI, § 29(A). While LSA-Const. art. AT, § 29(A) authorized sales and use taxes are limited to 3 % “when combined with the rate of all other sales and use taxes, exclusive of state sales and use taxes, levied and collected within any local governmental subdivision,” LSA-R.S. 33:2711 sales and use taxes are only limited by the express language of the statute from being “in excess of two and one-half percent.” However, no limitation |swith respect to “combined” sales and use taxes vis-a-vis other local governmental entities is contained within LSA-R.S. 33:2711. Although Paragraph^) of LSA-R.S. 33:2711 sanctions intergovernmental agreements between a municipality, school boards, parishes, municipalities, and special taxing districts to provide for the “collection, sharing, and levy of, and exemptions from, any taxes authorized” by LSA-R.S. 33:2711, there is no statement in the statute requiring that the 2½ % sales and use taxes that can be levied by municipalities be less than a certain combined total that takes into account taxes levied by all other local taxing entities.

This is in distinct contrast with the limitations imposed on parishes and school boards by LSA-R.S. 33:2721.6, which authorizes the collection of sales and use taxes, in addition to those authorized by Article VI, § 29(A), by the “governing authority of any parish or school board.” The amount of sales and use taxes a parish or school board can levy is limited by Paragraph (A)(2) of LSA-R.S. 33:2721.6 to no more than 4 % “when combined with the rate of all other sales and use taxes, exclusive of state sales and use taxes and law enforcement district sales and use taxes levied and collected within any parish or municipality.” Although Paragraph (A)(2) references municipalities, it does so only in delineating the limitation on parish or school board taxes. The limitation in Paragraph (A)(2) is expressly directed to the tax authorized in Paragraph (A)(1), which applies only to a parish or school board.

| ^Clearly, LSA-R.S. 33:2711 contains no similar limitation. The 2½ % maximum tax limit contained in LSA-R.S. 33:2711 is available entirely to a municipality without reference to sales and use taxes imposed by other local governmental entities. There are no ambiguities in this language, and it should be applied as written.

We acknowledge 1998 Senate Resolution No. 42 and 1998 House Resolution No. 58, which stated that “R.S. 33:2721.6 is the latest expression of the legislature” and further expressed the intent that in enacting LSA-R.S. 33:2711(A)(2) the rate of the sales and use tax authorized by Section 2711(A)(2) “when combined with the rate of all other sales and use taxes, exclusive of state and law enforcement district sales and use taxes, levied and collected within any parish or municipality shall not exceed four percent unless authorized by special legislative enactment.”

In evaluating the interpretative significance of the 1998 resolutions, we agree with the analysis employed by Judge (now Justice) Weimer in his Cibar-Geigy Corp. v. Town of St. Gabriel ex rel. Grace concurrence, wherein he emphasized the concept of separation of powers and the vesting of that power in three branches of government: the executive branch, which enforces the law; the legislative branch, which enacts the law; and the judicial branch, which interprets the law. Cibar-Geigy Corp. v. Town of St. Gabriel ex rel. Grace, 740 So.2d at 151-53 (citing LSA-Const. art. V, § 1 and LaBauve v. Louisiana Wildlife and Fisheries Commission, 289 So.2d 150, 151 (La.1974)). Noting the admission of counsel that the 1998 resolutions were enacted at the request of the plaintiffs and that plaintiffs’ counsel’s firm consulted with those who prepared the resolutions, the concurrence opined that the simple resolutions, which by definition do not have the effect of law, were enacted at the request of those attempting to | tpinfluence pending litigation and should not be considered. The concurrence went on to add that to consider these resolutions would offend the constitutional concept of separation of powers and would be unfair to all parties to this litigation. Ciba-Geigy Corp. v. Town of St. Gabriel ex rel. Grace, 740 So.2d at 153 (citing State Licensing Board of Contractors v. State Civil Service Commission, 110 So.2d 847 (La.App. 1 Cir. 1959), affirmed, 240 La. 331, 123 So.2d 76 (1960) (holding that a legislative resolution was unconstitutional as an encroachment upon the constitutional power of the judiciary to construe and interpret existing legislation, and stating that it was not within the constitutional province of the legislature to construe earlier enactments involved in litigation)). Accordingly, we do not find the 1998 legislative resolutions persuasive in this case, in light of the plain language of the statutes at issue.

Further, we reject the Iberville Sales Tax Department’s contention that Ordinance 2007-0001-1155 constitutes a new tax that requires approval by the voters. Ordinance 2007-0001-1155 merely rescinded a prior ordinance, Ordinance 1999-3, which had “rolled back” or stated the City’s intent at that time not to collect the full amount of the tax authorized by Ordinance 1996-10. The 2007 ordinance further ratified or stated the city’s approval of the previously enacted and voter-approved Ordinance 1996-10, declared the city’s revised intention to begin collecting the full tax authorized by Ordinance 1996-10, and further stated the city’s opinion that the 1996 tax remained in full force and effect. After this court’s 1999 ruling that the 1996 tax exceeded the allowable maximum amount, and while the matter was under consideration by the supreme court, the city decided to forgo collecting the entire amount of tax authorized by Ordinance 1996-10, and the writ of certio-rari was dismissed. In 2007, the city reconsidered the |ndecision to forgo collecting the full tax authorized by Ordinance 1996-10 and announced via Ordinance 2007-0001-1155 its decision to fully implement Ordinance 1996-10. Ordinance 1996-10 was voted on by the people and never repealed; a portion of the tax authorized thereunder has been collected continuously over the years. Therefore, the 2007 ordinance contained no new tax, but merely stated the city’s change in policy from abstaining from collecting all of the tax authorized by the 1996 ordinance to a new course of action; i.e., to begin collecting all of the tax authorized by the voters as stated in Ordinance 1996-10. The City of St. Gabriel has imposed no new tax, rather, it has begun to collect the whole of the 1996 tax.

Thus, we hold herein that, pursuant to LSA-R.S. 33:2711, incorporated municipalities are authorized to levy and collect sales and use taxes not in excess of 2½ % upon satisfying the procedural requirements of that statute, without reference to the limitations imposed on parishes and school boards by LSA-R.S. 33:2721.6(A)(2), and we overrule this court’s earlier opinion to the contrary as stated in Ciba-Geigy Corp. v. Town, of St. Gabriel ex rel. Grace. Therefore, we conclude that the district court erred in finding that St. Gabriel was not entitled to collection of the tax levied by Ordinance 1996-10 and in enjoining the city’s attempts to have the tax collected.

CONCLUSION

For the reasons assigned herein, the judgment of the district court, in favor of the Parish of Iberville Sales Tax Department, is reversed and the Impermanent injunction is hereby dissolved. All costs of this appeal, in the amount of $1,025.01, are to be borne by plaintiff, Parish of Iberville Sales Tax Department.

JUDGMENT REVERSED; PERMANENT INJUNCTION DISSOLVED.

KUHN, J., concurs in the result.

PARRO, J., concurs.

McDONALD, J., dissents and assigns reasons.

McCLENDON, j., concurs without reasons.

McDONALD, J.,

dissenting:

| ]While I agree with the analysis reached by the majority, I must respectfully disagree with the conclusion and result. I must dissent in the recommendation that the judgment be vacated and the case be remanded.

This is not the normal situation in which the court sits en banc to reconsider a legal principle or point of law that has previously been ruled upon by a prior panel of this court. In this instance, we sit en banc to reconsider a prior ruling by a panel of this court in this exact case. I agree with the majority that the dissenting opinion was correct in Ciba-Geigy Corp. v. To%m of St. Gabriel ex rel. Grace, 98-0935 (La.App. 1 Cir. 4/1/99), 740 So.2d 147, writ granted, (La.5/28/99), 743 So.2d 676 (appeal dismissed by the parties on 10/13/99). In that case the issue was whether the limit on the amount of sales tax collected within any parish or municipality (LSA-R.S. 33:2721.6(A)(2)) limits the amount of sales and use tax that could be approved and collected by the City of St. Gabriel. A prior panel of this court found that it did. In the present suit we are not called upon to interpret this statute in the context of some tax in another parish or municipality. We are |2again asked to review this same tax imposed by the City of St. Gabriel. The previous decision of this court is a final judgment. While it was appealed, the appeal was dismissed by the parties. This was approximately ten years ago. It is certainly not appealable now. The present appeal amounts to a collateral attack on the prior judgment. Such an attack is only sanctioned in a suit to annul a prior judgment. This principle is discussed in Jones v. State, Div. of Admin., 2009 WL 1272396, *3 (La.App. 1 Cir., 2009):

The supreme court has instructed that “No principle of law has received greater and more frequent sanction, or is more deeply imbedded in our jurisprudence, than that which forbids a collateral attack on a judgment or order of a competent tribunal, not void on its face ab ignition (sic).” Allen v. Commercial National Bank in Shreveport, 243 La. 840, 848, 147 So.2d 865, 868 (La.1962). A collateral attack is defined as an attempt to impeach a decree in a proceeding not instituted for the express purpose of annulling it. Lowman v. Merrick, 06-0921 (La.App. 1 Cir, 3/23/07), 960 So.2d 84, 90.

The present suit is not such an action. St. Gabriel’s recourse should be a suit to nullify the prior judgment if they have a valid claim to do so.

I am also concerned that the decision of this court has now enacted the tax at issue. I believe that the trial court was correct that we must abide by the original Ciba-Geigy decision. That decision found that the 1996 municipal tax was unlawful at the time of the election because it exceeded the maximum tax limit provided in LSA-R.S. 33:2721.6. The ordinance adopted on November 15, 2007, by the St. Gabriel City Council, attempts to revive this same tax. I believe this is impermissible and the voters must have the opportunity to approve or disapprove this tax again. Since they approved it in 1996 there may have been other tax elections which may have been approved. In voting on these tax issues the voters may have been influenced by the fact that this 1996 tax had been found to be invalid and only a portion of it was enacted. Thus, I feel it is the electorate who has the right to decide whether this tax should be imposed, not this court.

| ;iFor these reasons I respectfully dissent in the conclusion reached by this court and the decision to remand. I would affirm the decision of the trial court.

      . This appeal was decided by a five-judge panel of this court, with two of the five judges dissenting from the majority opinion.

      . The 1996 tax had imposed a 1 % sales and use tax in addition to the 3¾ % in sales and use taxes already being collected by local governmental entities, which would have resulted in total local sales and use taxes of 4⅜ %.

      . The record presented on appeal does not reflect that any action was taken by the district court on this petition.

      . "Local governmental subdivision" means any parish or municipality. LSA-Const. art. VI, § 44(1).

      . “Municipality" includes any incorporated city, town, or village. LSA-R.S. 33:101(2)(a). See also LSA-Const. art. VI, § 44(3).

      . Louisiana Revised Statute 33:2711(C) provides in full:
      Notwithstanding any other statutory provisions to the contrary, including but not limited to provisions providing for equal collection and levy of sales taxes and in order to prevent the duplicate collection of sales taxes in areas annexed into a municipality, school boards, parishes, municipalities, and special taxing districts may enter into intergovernmental agreements providing for the collection, sharing, and levy of, and exemptions from, any taxes authorized by this Section.

      . While this court may notice both res judica-ta and the failure to state a cause of action on its own motion pursuant to LSA-C.C.P. art. 927, we refrain from doing so in the instant case as the record is not sufficiently complete to warrant an ex proprio motion on either issue. We note that the doctrine of res judi-cata, as stated in LSA-R.S. 13:4231, precludes relitigation of a matter previously adjudicated "between the same parties.” The previous case before this court, Ciba-Geigy Corp. v. Town of St. Gabriel ex rel. Grace, which we overrule herein, named as plaintiffs: Ciba-Geigy Corporation; Union Texas Products Corporation; Zeneca, Inc.; the Iberville Group, L.L.C.; Pioneer Chlor Alkali Company, Inc.; ICI Americas, Inc.; Air Products and Chemicals, Inc.; Arcadian Fertilizer, L.P.; and Fina Oil and Chemical Company. This earlier case named as defendants: the town of St. Gabriel, through its mayor, George L. Grace; the Parish of Iberville, through its police jury president, Aldrich "Tudy” Dupree; and the School Board of the Parish of Iberville, through its superintendent, Charles P. Bujol. In this court's earlier opinion in the appeal of that case, it was noted that the district court sustained Iber-ville Parish’s and the School Board’s exceptions of no cause of action and prescription and dismissed these defendants with prejudice. Ciba-Geigy Corp. v. Town of St. Gabriel ex rel. Grace, 98-0935 at p. 2 n. 7, 740 So.2d at 148 n. 7. Thus, it would not appear that the plaintiff in the present suit, the Parish of Iberville Sales Tax Department, was a party actually litigating the merits of the former suit, which would trigger the conclusive effect of the res judicata doctrine. Although the Iberville Sales Tax Department’s attorney stated at the hearing on its petition for injunc-tive relief, held by the district court in the instant matter, that in the prior suit the parish was dismissed "from the suit early on,” no documentary evidence on the issue appears in the record. We further take note of LSA-R.S. 18:1294 and 18:1405(E), which provide that a person in interest seeking to contest the legality of an election authorizing a tax must file suit within sixty days after promulgation of the results of the election, after which time, one who has not filed suit is foreclosed from bringing suit; this time period is peremptive and once expired, the cause of action no longer exists. See Guillory v. Avoyelles Ry. Co., 104 La. 11, 15-17, 28 So. 899, 901 (1900). See also Town of Church Point v. Acadia Parish Police Jury, 2003-890, pp. 2-4 (La.App. 3 Cir. 7/14/03), 849 So.2d 87, 89-90, writ not considered. 2003-2102 (La.7/29/03), 849 So.2d 534; Small v. Desselle, 520 So.2d 1167, 1168 (La.App. 3 Cir. 1987). While Iber-ville Parish was originally named in Ciba-Geigy Corp. v. Town of St. Gabriel ex rel. Grace as a defendant (and later dismissed as a party altogether), it does not appear that the parish in any way contested the validity of Ordinance 1996-10 while a party to that suit. The failure to timely challenge a matter approved by election constitutes an acquiescence in the outcome of the election. See James v. Arkansas Southern Ry. Co., 110 La. 145, 156, 34 So. 337, 341 (1903); Guillory v. Avoyelles Ry. Co., 104 La. at 16-17, 28 So. at 901. Again, the record on appeal in the instant case does not contain any documentation with respect to whether the Parish of Iberville Sales Tax Department instituted any suit contesting the validity of the validity of Ordinance 1966-10, as approved by the electorate within the sixty-day statutory timeframe, though inferences are to the contrary. Therefore, we conclude that an ex proprio disposition on either a res judicata basis or the failure to state a cause of action would be inappropriate herein. Further, it should be noted that we express no opinion herein as to the continued applicability of this court’s prior opinion in Ciba-Geigy Corp. v. Town of St. Gabriel ex rel. Grace as it applies to the original nine plaintiffs therein.

      . First Circuit Court of Appeal Internal Rule 2.Id En-Banc sittings
      2.1 d( 1) Overruling prior decision
      An en banc sitting shall be convened when a proposed action, to be made in the exercise of this Court’s appellate or supervisory jurisdiction, suggests the overruling of a prior First Circuit published or unpublished decision on a point of law and it is the opinion of the Conference that an en banc sitting is warranted ...


author: GAIDRY, J.

text:
    William TAYLOR v. HANSON NORTH AMERICA.
    No. 2008 CA 2282.
    Court of Appeal of Louisiana, First Circuit.
    Aug. 4, 2009.

      Thomas J. Hogan, Jr., Hammond, LA, for Plaintiff/Appellee William Taylor.
    Frank R. Whiteley, Metairie, LA, for Defendant/Appellant Hanson North America.
    Before KUHN, GUIDRY, and GAIDRY, JJ.
   GAIDRY, J.

| .¿Defendant appeals a district court judgment awarding recovery to plaintiff under the nonsufficient funds check statute, La. R.S. 9:2782. We affirm.

FACTS & PROCEDURAL BACKGROUND

Plaintiff, William Taylor, was injured in a work-related accident in May of 1995, and began receiving weekly workers’ compensation benefits. In July 2007, Hanson North America (defendant), the successor in interest to plaintiffs prior employer, issued three checks in the amount of $323.00 each as payment for weekly compensation benefits. However, when presented for payment, the three checks were returned to plaintiff by the bank with the notations “not sufficient funds” and “refer to maker.” Thereafter, plaintiff made written demand upon defendant for payment of the checks. Although defendant received the written demand, it refused to make payment.

On October 1, 2007, plaintiff filed a disputed claim for compensation against defendant with the Office of Workers’ Compensation Administration (OWC) seeking payment of the three returned checks, bank processing fees, penalties, and attorney fees. In response, defendant maintained plaintiff was up to date on his benefits. Subsequently, the parties filed cross-motions for summary judgment, with defendant asserting that the checks were issued for benefits not owed to plaintiff since it had paid him five hundred and twenty weeks of indemnity benefits, and he was neither permanently nor temporarily totally disabled. The OWC judge granted summary judgment in favor of defendant on the grounds asserted. Plaintiff appealed that judgment to this Court, which reversed the summary judgment on the grounds that there were genuine issues of material fact and remanded the matter to the OWC for further proceedings. See Taylor v. Hanson North America, 08-]1944;^ (La. 1st Cir.5/8/09), 18 So.3d 660. Thus, that matter is currently pending before the OWC.

On December 28, 2007, plaintiff named Hanson North America as defendant in a suit filed in district court to recover the face value of the checks, as well as statutory penalties and attorneys fees, pursuant to La. R.S. 9:2782. Plaintiff alleged that three checks issued to him by defendant for weekly compensation benefits were returned due to nonsufficient funds, and defendant, after being given proper notice, refused to pay the amount of the checks. In its answer, defendant admitted all of plaintiffs allegations, except for the claim that he was entitled under La. R.S. 9:2782 to double the value of the checks, court costs and attorney fees. Defendant asserted as an affirmative defense that the checks were not owed to plaintiff because it had already completed its obligation to pay weekly benefits to him under the Workers’ Compensation Act (WCA). Defendant further alleged it was entitled to a credit for all overpayments of compensation benefits made to plaintiff. Additionally, defendant filed a declinatory exception raising the objections of lis pendens and lack of subject matter jurisdiction and a peremptory exception raising the objection of no cause of action.

Plaintiff filed a motion for judgment on the pleadings. Following a hearing, the district court overruled defendant’s exceptions and awarded plaintiff judgment on the pleadings for the face value of the checks in the amount of $969.00, attorney fees of $969.00, and statutory penalties of $484.50, for a total of $2,422.50. Defendant suspensively appealed the judgment, alleging in three assignments of error that the district court erred in overruling its exception of lis pendens, exception of lack of subject matter jurisdiction, and exception of no cause of action. Plaintiff filed an answer to the appeal seeking damages for frivolous appeal.

|„LIS PENDENS

In its first assignment of error, defen-' dant asserts the district court committed legal error in overruling its exception of lis pendens. The basis of this exception is defendant’s contention that prior to filing the instant suit, plaintiff first filed a claim against it with the OWC seeking recovery of the same workers’ compensation benefits he seeks to recover in this suit. As previously mentioned, that matter currently is pending, having recently been remanded to the OWC.

Louisiana Code of Civil Procedure article 531 provides that “[w]hen two or more suits are pending in a Louisiana court or courts on the same transaction or occurrence, between the same parties in the same capacities, the defendant may have all but the first suit dismissed by excepting thereto as provided in Article 925.” Under La. C.C.P. art. 925 A(3), the plea of lis pendens may be raised through a declinatory exception. However, the exception of lis pendens presupposes the existence of concurrent subject matter jurisdiction in two or more judicial forums. See State ex rel. Boucher v. Heard, 232 La. 499, 504, 94 So.2d 451, 452 (1957); Clark v. State, 02-1936, pp. 4-5 (La.App. 1st Cir.1/28/04), 873 So.2d 32, 34, writ denied, 04-0452 (La.4/23/04), 870 So.2d 300.

Accordingly, in the present case, even if the other requirements for lis pen-dens were satisfied and the OWC could be considered a “court” as contemplated by Article 531 , the exception of lis pendens still would not be well-founded. The jurisdiction exercised by the OWC over workers’ compensation claims is exclusive in nature. See La. R.S. 23:1310.3 E. Such exclusive jurisdiction differs from concurrent jurisdiction where district |.r,courts in certain matters maintain original jurisdiction at the same time that an agency or other court has also been granted the same original jurisdiction. Phillips v. Lowe’s Home Center, Inc., 03-0660, p. 4 (La.App. 1st Cir.4/28/04), 879 So.2d 200, 203. Since the jurisdiction granted to the OWC over matters arising under the WCA is exclusive, the district courts are divested of jurisdiction in such matters. Louisiana Retailers Mutual Insurance Company v. DeRamus, 06-1427, p. 7 (La.App. 1st Cir.5/4/07), 960 So.2d 1048, 1052, writ denied, 07-1189 (La.9/21/07), 964 So.2d 336; Phillips, 03-0660 at pp. 4-5, 879 So.2d at 203. Therefore, since the OWC and the district court that decided the instant matter do not exercise concurrent jurisdiction, lis pendens is inapplicable. This assignment of error lacks merit.

LACK OF SUBJECT MATTER JURISDICTION

Defendant contends the district court erred in overruling its exception of lack of subject matter jurisdiction because this suit concerns an issue of non-payment of workers’ compensation benefits, which is a matter exclusively within the jurisdiction of the OWC under La. R.S. 23:1310.3 E. According to defendant, since plaintiffs claim involves an attempt to recover workers’ compensation benefits, the district court lacks jurisdiction to consider this matter.

“Jurisdiction over the subject matter is the legal power and authority of a court to hear and determine a particular class of actions or proceedings, based upon the object of the demand, the amount in dispute, or the value of the right asserted.” La. C.C.P. art. 2. The subject matter jurisdiction of district courts is set forth by La. Const. Art. V, § 16(A)(1) as follows:

Except as otherwise authorized by this constitution or except as heretofore or hereafter provided by law for administrative agency determinations in worker’s compensation matters, a |ndistrict court shall have original jurisdiction of all civil and criminal matters. [Emphasis added.]

Thus, while district courts generally have original jurisdiction over all civil matters, an exception exists in the case of workers’ compensation matters when the law so provides. Broussard Physical Therapy v. Family Dollar Stores, Inc., 08-1013, p. 4 (La.12/2/08), 5 So.3d 812, 815. The jurisdiction granted by law to OWC judges is set forth in La. R.S. 23:1310.3 E, which, in pertinent part, states:

[T]he workers’ compensation judge shall be vested with original, exclusive jurisdiction over all claims or disputes arising out of this Chapter, including but not limited to workers’ compensation insurance coverage disputes, group self-insurance indemnity contract disputes, employer demands for recovery for overpayment of benefits, the determination and recognition of employer credits as provided for in this Chapter, and cross-claims between employers or workers’ compensation insurers or self-insurance group funds for indemnification or contribution, concursus proceedings pursuant to Louisiana Code of Civil Procedure Articles 4651 et seq. concerning entitlement to workers’ compensation benefits, payment for medical treatment, or attorney fees arising out of an injury subject to this Chapter. [Emphasis added.]

Pursuant to this provision, the OWC is granted exclusive jurisdiction over workers’ compensation claims arising out of the workers’ compensation law. Phillips, 03-0660 at pp. 4-5, 879 So.2d at 203. However, the mere involvement of the workers’ compensation statute or a workers’ compensation claim does not automatically subject the entire matter to the jurisdiction of the OWC. TIG Insurance Company v. Louisiana Workers’ Compensation Corporation, 04-2608, p. 4 (La.App. 1st Cir.6/10/05), 917 So.2d 26, 28, writ denied, 05-1821 (La.1/27/06), 922 So.2d 553. The Louisiana Supreme Court has made it clear that the grant of jurisdiction in La. R.S. 23:1310.3 E is quite specific and provides for OWC jurisdiction only for “claims or disputes arising out of’ the WCA. Broussard Physical Therapy, 08-1013 at p. 9, 5 So.3d at 817. Moreover, | .¡exceptions to the general rule that district courts are vested with original jurisdiction in civil matters must be narrowly construed. See TIG Insurance Company, 04-2608 at p. 6, 917 So.2d at 29.

In the instant case, based on our review of the record and the jurisprudence, we find defendant’s contention that the district court lacked subject matter jurisdiction to be without merit. The claim asserted by plaintiff in this suit does not arise from the WCA. Rather, it arose from La. R.S. 9:2782, which provides, in pertinent part, that:

A. Whenever any drawer of a check dishonored for nonsufficient funds fails to pay the obligation created by the check within fifteen working days after receipt of written demand for payment thereof delivered by certified or registered mail, the drawer shall be liable to the payee or a person subrogated to the rights of the payee for damages of twice the amount so owing, but in no case less than one hundred dollars plus attorney fees and court costs.

This provision creates a cause of action for the recovery of statutory penalties, court costs and attorney fees in situations where a check is dishonored for nonsuffi-cient funds and the drawee fails to pay the obligation created by the check within fifteen working days of receiving the written demand delineated in the statute. Further, unlike situations involving stop-payment orders, this provision does not provide for any exceptions to the plaintiffs’ recovery when these statutory requirements are met, even in situations where there is a dispute as to the amount owed or the existence of the obligation. Compare La. R.S. 9:2782.2 A. Thus, it is not the obligation |sunderlying the issuance of the check that gives rise to this cause of action, but rather the drawee’s failure “to pay the obligation created by the check” within fifteen days of receiving written demand. The nature of the underlying obligation, which in this case happens to be the payment of workers’ compensation benefits, is merely incidental to the independent cause of action created by La. R.S. 9:2782.

Defendant argues in opposition that there is a possibility of double recovery of compensation benefits or inconsistent judgments if the district court is allowed to exercise jurisdiction in this case. However, if an overpayment of benefits occurs, La. R.S. 23:1810.3 E specifically provides that jurisdiction for an employer’s demand to recover for overpayment of benefits lies with the OWC. Although it may appear judicially inefficient to adjudicate such a claim in a separate forum than the instant matter, the Supreme Court has indicated that judicial efficiency is insufficient to confer subject matter jurisdiction. See Broussard, Physical Therapy, 08-1013 at p. 9, 5 So.3d at 817-18.

In this case, the claim asserted by plaintiff as a result of the nonpayment of the checks did not arise under the WCA, despite the fact that the checks were issued as payment for weekly compensation benefits. Rather, it was defendant’s failure “to pay the obligation created by the check” within the specified time after receiving written notice that the checks were dishonored that gave rise to the claim asserted by plaintiff in the district court proceeding. Since plaintiffs claim for recovery under La. R.S. 9:2782 did not arise under the WCA, the district court was not divested of jurisdiction to consider the claim. Accordingly, the court properly overruled defendant’s exception of lack of subject matter jurisdiction.

J^NO CAUSE OF ACTION

In its final assignment of error, defendant argues that, due to the exclusivity provisions of La R.S. 23:1032, plaintiffs sole remedy for nonpayment of workers’ compensation benefits is to file a claim pursuant to the WCA. Therefore, it contends the district court erred in overruling its exception of no cause of action, since it has immunity under La. R.S. 23:1032 from the instant suit.

Defendant’s entire argument is premised on its position that the claim plaintiff asserts in the instant suit arises under the WCA. However, we have previously rejected this contention, concluding that plaintiff is seeking herein to recover for defendant’s failure to pay the obligation created by the issuance of the nonsufficient funds checks. The fact that the three cheeks were issued for the payment of compensation benefits is incidental to plaintiffs cause of action. Accordingly, we find this assignment of error to be without merit.

ANSWER TO APPEAL

Lastly, in an answer to this appeal, plaintiff argues he is entitled to an award for costs and additional attorney fees as damages for frivolous appeal because there was no appealable issue in this case.

JjjUnder La. C.C.P. art. 2164, an appellate court may award damages for frivolous appeal. However, courts are reluctant to grant damages under this article, since it is penal in nature and must be strictly construed. Even when an appeal lacks serious legal merit, damages for frivolous appeal will not be awarded unless it is clear the appeal was taken solely for the purpose of delay or that the appellant was not serious in the position he advocated. Assaleh v. Sherwood Forest Country Club Inc., 07-1939, p. 11 (La.App. 1st Cir.5/2/08), 991 So.2d 67, 74.

Based on our review of the record, we do not find an award for frivolous appeal to be warranted. Although we have found no merit in defendant’s appeal, we cannot say that the appeal was taken solely for the purpose of delay. To the contrary, it appears defendant was serious in the position it advocated on appeal and it presented cogent arguments in support thereof. Accordingly, we decline to award damages for frivolous appeal.

CONCLUSION

For the above reasons, the judgment of the district court is hereby affirmed. All costs of this appeal are to be paid by defendant, Hanson North America.

AFFIRMED.

      . We express no opinion as to whether the OWC can be considered a “court” for purposes of considering an exception of lis pen-dens, since resolution of that issue is unnecessary to this appeal.

      . This provision provides that:
      Whenever any drawer of a check stops payment on the check with the intent to defraud or when there is no justifiable dispute as to the amount owed or the existence of the obligation, the drawer shall be liable to a holder in due course as defined in R.S. 10:3-302, or a person subrogated to the rights of such holder, for damages of twice the amount so owing, but in no case less than one hundred dollars, plus attorney fees and court costs, if the drawer fails to pay the obligation created by the check within thirty days after receipt of written demand for payment thereof substantially in the form provided for in Subsection C which notice is delivered by certified or registered mail. [Emphasis added.]

      . Louisiana Revised Statutes 23:1032 A(l)(a) provides that:
      Except for intentional acts provided for in Subsection B, the rights and remedies herein granted to an employee or his dependent on account of an injury, or compensable sickness or disease for which he is entitled to compensation under this Chapter, shall be exclusive of all other rights, remedies, and claims for damages, including but not limited to punitive or exemplary damages, unless such rights, remedies, and damages are created by a statute, whether now existing or created in the future, expressly establishing same as available to such employee, his personal representatives, dependents, or relations, as against his employer, or any principal or any officer, director, stockholder, partner, or employee of such employer or principal, for said injury, or compensa-ble sickness or disease.


text:
    Crystal STUCKEY and Ashley Stuckey, Individually and On Behalf of her Minor Child, Austin Connor Stuckey v. RIVERSTONE RESIDENTIAL SC, LP, Formerly Trammell Crow Residential Services, and The Lakes Limited Partnership.
    No. 2008 CA 1770.
    Court of Appeal of Louisiana, First Circuit.
    Aug. 5, 2009.
    Rehearing Denied Sept. 23, 2009.

      J. Arthur Smith, III, Baton Rouge, Louisiana, for Plaintiffs/Appellants, Crystal Stuckey and Ashley Stuckey.
    Layna S. Cook, Daniel P. Guillory, Baton Rouge, Louisiana, for Defendants/Ap-pellees, Riverstone Residential SC, LP, formerly known as Trammell Crow Residential Services and The Lakes Unlimited Partnership.
    Before KUHN, GUIDRY, and GAIDRY, JJ.
   GAIDRY, J.

|2The tenants of an apartment appeal the trial court’s summary judgment dismissing their claims for damages against the apartment complex owner. For the following reasons, we affirm the trial court’s judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On February 11, 2005, the plaintiff, Ashley Stuckey, executed an apartment lease for Apartment No. 2907 of the Jefferson Lakes Apartments, an apartment complex owned by the defendant, The Lakes Limited Partnership (The Lakes), and managed by the defendant, Riverstone Residential SC, LP (Riverstone). The term of the lease was from the date of signing to August 30, 2005, and on a month-to-month basis thereafter. Apartment No. 2907 was a two-floor or townhouse apartment, with two bedrooms and two bathrooms on the second floor. In addition to Ashley Stuck-ey, her minor son, Austin Stuckey, and her mother Crystal Stuckey, resided in the apartment.

Maintenance records showed that prior tenants of the apartment had reported a number of intermittent water leaks, in various locations of the apartment, from February 1998 through December 2004. In April 2005, Ashley Stuckey complained to the apartments’ property manager on two occasions of a leak in one of the upstairs bathrooms. After repairs were attempted, Ms. Stuckey delivered a handwritten letter to the property manager, in which she complained about the continuing leak and the accumulation of a “black substance” on the air conditioning vents. She expressed her concern that there might be “a possible mold problem,” and claimed that “we have all been sick with symptoms that are associated with |smold exposure.” The property manager promptly contacted Ashley Stuckey upon receiving the letter to discuss the situation.

On May 9, 2005, Riverstone arranged to have its professional cleaning contractor inspect the apartment for mold. None was reported. The following day, an industrial hygiene technician employed by Air Environmental Services tested the apartment, and found no toxic levels of mold.

On June 14, 2005, the plaintiffs arranged for their own testing of the apartment. On June 27, 2005, the plaintiffs vacated the apartment, apparently after receiving notice of institution of eviction proceedings for nonpayment of rent.

On February 13, 2006, the plaintiffs filed a petition for damages, naming The Lakes and Riverstone as defendants. They alleged that while residing in the apartment from February 12 through June 24, 2005, they and Austin were exposed to toxigenic molds due to the defendants’ negligence and fault. They also alleged that on April 6, 2005, Crystal Stuckey reported a hole in a bathroom wall that was leaking water into the living room downstairs, that fungus was growing in that hole, and that another hole was present in the ceiling of Austin’s bedroom. It was alleged that water damage and visible mold on the ceiling were also reported to the property manager. Because the reported problems were allegedly not remedied, the plaintiffs again notified the property manager by telephone on April 20, 2005 of the hole in the bathroom wall, after which some repairs to the living room ceiling were made. However, according to the petition, the bathroom leak was not addressed. The plaintiffs claimed that the water leaks resulted in the growth of the toxigenic molds, which caused them and Austin to suffer ^various health problems due to that exposure, including bronchial infections, persistent nose bleeds, headaches, nausea, and other conditions.

The defendants answered the petition, denying their liability, but admitting that a leak in an upstairs bathroom was reported around April 15, 2005. The defendants also raised various affirmative defenses, including the plaintiffs’ contributory negligence and fault, the provisions of the lease agreement, and the plaintiffs’ failure to mitigate their damages. They further asserted a reconventional demand against Ashley Stuckey for unpaid rent, attorney fees and costs, and any property damage attributable to her failure to promptly notify the defendants of any water damage or mold contamination.

In her answer to the reconventional demand, Ashley Stuckey generally denied its allegations, except to admit the allegation that she vacated the apartment around June 27, 2005. She further alleged that the “mold problems” were reported to Riv-erstone within a month of her moving into the apartment, and that she made oral and written requests to have those problems addressed.

On October 8, 2007, the defendants filed a motion for summary judgment on the grounds that the terms of the lease served to absolve them of any liability for damages related to mold or mildew. The motion was originally fixed for hearing on December 3, 2007, but the hearing was continued on the plaintiffs’ motion.

The defendants’ motion for summary judgment was eventually heard on March 17, 2008. Following the formal introduction of evidence and oral argument, the trial court ruled in favor of the defendants, finding that the defendants were not liable by virtue of La. R.S. 9:3221. On April 10, 2008, |sthe trial court signed the summary judgment, dismissing the plaintiffs’ claims with prejudice. The plaintiffs now appeal that judgment.

ASSIGNMENTS OF ERROR

We summarize the plaintiffs’ assignments of error as follows:

1. The trial court erred in granting the defendants’ motion for summary judgment, as there are genuine issues of material fact as to the defendants’ actual or constructive knowledge of the defects.

2. The trial court committed legal error in granting the defendants’ motion, as the defendants did not prove entitlement to judgment as a matter of law, based upon the following:

(a) The purported waiver of warranty in the lease agreement is invalid and unenforceable under La. C.C. arts.2004 and 2699, as it was not clear and unambiguous, not clearly brought to Ashley Stuckey’s attention, and purports to immunize the defendants from delictual liability in advance of the occurrence of the tort;
(b) The plaintiffs proved a prima fa-cie case of liability; and
(c) The defendants failed to remedy the defect, the toxigenic mold, after acquiring actual knowledge of its presence.

STANDARD OF REVIEW

This matter comes to us on appeal from a summary judgment. It is therefore subject to de novo review as to whether summary judgment was appropriate. Motorola, Inc. v. Associated Indem. Corp., 02-0716, p. 5 (La.App. 1st Cir.6/25/04), 878 So.2d 824, 828, writs denied, 04-2314, 04-2323, 04-2326, 04-2327 (La.11/19/04), 888 So.2d 207, 211, 212. In undertaking our de novo review, we employ the same standards applicable to the trial court’s determination of the issues. Peak Performance Physical Therapy & |6Fitness, LLC v. Hibernia Corp., 07-2206, p. 5 (La.App. 1st Cir.6/6/08), 992 So.2d 527, 530, writ denied, 08-1478 (La.10/3/08), 992 So.2d 1018.

The summary judgment procedure is expressly favored in the law, and is designed to secure the just, speedy, and inexpensive determination of non-domestic civil actions. La. C.C.P. art. 966(A)(2). Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, admissions, and affidavits in the record 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(B). Louisiana Code of Civil Procedure article 967(A) provides that “[s]up-porting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.”

The mover has the burden of proof that he is entitled to summary judgment. See La. C.C.P. art. 966(C)(2). If the mover will not bear the burden of proof at trial on the subject matter of the motion, he need only demonstrate the absence of factual support for one or more essential elements of his opponent’s claim, action, or defense. La. C.C.P. art. 966(C)(2). If the moving party points out that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense, then the nonmoving party must produce factual support sufficient to satisfy his evidentiary burden at trial. La. C.C.P. art. 966(C)(2). If the mover has put forth supporting proof through affidavits or otherwise, the adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or otherwise, must set forth specific facts showing that there is a genuine issue for trial. La. C.C.P. art. 967(B).

IvDISCUSSION

Legal Principles

Louisiana Civil Code article 2696 establishes the lessor’s warranty against vices or defects in the leased thing:

The lessor warrants the lessee that the thing is suitable for the purpose for which it was leased and that it is free from vices or defects that prevent its use for that purpose.
This warranty also extends to vices or defects that arise after the delivery of the thing and are not attributable to the fault of the lessee.

Louisiana Civil Code article 2697 further provides that:

The warranty provided in the preceding Article also encompasses vices or defects that are not known to the lessor.
However, if the lessee knows of such vices or defects and fails to notify the lessor, the lessee’s recovery for breach of warranty may be reduced accordingly.

Louisiana Civil Code article 2699 provides for the lessee’s waiver of the warranty against vices or defects in certain circumstances:

The warranty provided in the preceding Articles may be waived, but only by clear and unambiguous language that is brought to the attention of the lessee.

Nevertheless, a waiver of warranty is ineffective:

(1)To the extent it pertains to vices or defects of which the lessee did not know and the lessor knew or should have known;
(2) To the extent it is contrary to the provisions of Article 2004;
(3) In a residential or consumer lease, to the extent it purports to waive the warranty for vices or defects that seriously affect health or safety.

Louisiana Revised Statutes 9:3221 provides:

Notwithstanding the provisions of Louisiana Civil Code Article 2699, the owner of premises leased under a contract whereby the lessee assumes responsibility for their condition is not liable for injury caused by any defect therein to the lessee or anyone on the premises who derives his right to be thereon | /rom the lessee, unless the owner knew or should have known of the defect or had received notice thereof and failed to remedy it within a reasonable time. (Emphasis added.)

The emphasized introductory phrase of the last-cited statute was added effective January 1, 2005, as part of the same act that amended and reenacted La. C.C. art. 2699. Although La. C.C. art. 2699 and La. R.S. 9:3221 are in pan materia, article 2699 deals with the contractual obligations between the parties to the lease, rather than with delictual obligations that may arise related to the leased property. See La. C.C. art. 2699, Revision Comments — 2004, (h). Thus, La. C.C. art. 2699 does not supersede the provisions of La. R.S. 9:3221 that govern and allocate such delictual obligations between the parties. Id. Louisiana Revised Statutes 9:3221 is a statutory exception to the strict liability of La. C.C. art. 2696, and is expressly recognized as not subject to the provisions of La. C.C. art. 2699.

Louisiana Civil Code article 2004 provides that “[a]ny clause [in a contract] is null that, in advance, excludes or limits the liability of one party for causing physical injury to the other party.” However, its provisions do not supersede La. R.S. 9:3221. La. C.C. art.2004, Revision Comments — 1984, (f).

We therefore conclude that the trial court did not commit legal error in finding La. R.S. 9:3221 legally applicable to the facts of this case.

The Terms of the Lease Agreement

The initial term of the lease agreement was for a period of slightly over six months, ending August 30, 2005, with monthly rent of $685.00. Paragraph 11, although primarily directed to the subject of insurance, also contains language relevant to the issues presented:

11. Insurance. Owner recommends that Resident secure Renter’s insurance to help protect Resident and Resident’s property. Owner is not responsible for, and will not provide | afire or casualty insurance for, the personal property of Resident or occupants of the Unit.... Neither Owner nor Owner’s managing agent shall be liable to Resident, other occupants of the Unit or their respective guests for any damage, injury or loss to person or property (furniture, jewelry, clothing, etc.) from ... flood, water leaks, rain, ... or other occurrences unless such damage, injury, or loss is caused exclusively by the negligence of Owner .... (Emphasis added.)

Paragraph 17 of the lease agreement is captioned “Delivery of Unit,” and concludes with the following provision:

TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, OWNER EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED RELATING TO THE UNIT OR ANY FURNITURE, FURNISHINGS, EQUIPMENT OR APPLIANCES, IF ANY, IN THE UNIT INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, HABITABILITY OR SUITABILITY.

Finally, and most importantly for our purposes, Paragraph 26(a) specifically provides the following:

Mold & Mildew Resident(s) acknowledges that the apartment is located in a State which has a climate conducive to the growth of mold and mildew. It is, therefore, necessary to provide proper ventilation and dehumidification to the apartment to minimize the growth of mold and mildew. The only effective method to properly condition the air is to operate the heating and/or air conditioning ventilation system at all times throughout the year, even during those times when outside temperatures are moderate. Please understand that Management is not responsible for any injury, illness, harm or damage to the apartment or any person or property caused by or arising from, in whole or in part, mold or mildew. (Emphasis added.)

It is certainly open to question whether the first and second paragraphs quoted above sufficiently express the intent that Ashley Stuckey assumed general responsibility for the condition of the apartment for purposes of La. R.S. 9:3221. We note that the first paragraph’s stated title, “Insurance,” and its context might suggest that it relates only to responsibility for securing insurance. At any rate, we conclude that hnParagraph 26(a) clearly and adequately expresses the parties’ intent that, as between them, the responsibility for any condition or defect involving mold or mildew in the apartment would rest upon Ashley Stuckey, for purposes of application of La. R.S. 9:3221. The paragraph describes necessary preventative measures, the operation of the apartment’s individual heating and air conditioning system, obviously within the primary control and responsibility of the resident tenant, and specifically and unambiguously provides that the lessor will have no responsibility for mold or mildew in the apartment.

As previously noted, La. R.S. 9:3221 operates as an express statutory exception to La. C.C. art. 2699 where the lessee assumes responsibility for the condition of leased premises. Where the language of a provision transferring delictual liability under La. R.S. 9:3221 is clear and unambiguous, the law does not require that the provision be brought to the lessee’s attention or explained to him. Greely v. OAG Properties, LLC, 44,240, p. 4 (La.App. 2nd Cir.5/13/09), 12 So.3d 490, 494. See also Ford v. Bienvenu, 00-2376, pp. 6-9 (La.App. 4th Cir.8/29/01), 804 So.2d 64, 68-70, writ denied, 01-2688 (La.12/14/01), 804 So.2d 639. Thus, La. C.C. art. 2699’s requirement that a waiver of the lessor’s warranty against vices or defects be brought to the attention of the lessee does not apply to a provision transferring responsibility for purposes of La. R.S. 9:3221.

The deposition testimony of Ashley Stuckey and Connie Stuckey was generally corroborative of the allegations of their petition regarding the reporting of the water leak in the bathroom. In her affidavit and deposition, Ashley Stuckey denied that anyone on behalf of the defendants fixed the leak after it was initially reported, a disputed point between the parties. In her deposition, Ashley Stuckey confirmed that she did not observe any black | n sub stance on any air conditioning vent upon moving in, and described herself as “excited” to be moving into the “very white apartment.”

The deposition of Connie Campbell, Riv-erstone’s property manager for the apartment complex, was filed in the record. She testified that she had been employed in that capacity since March 2000, and that during that time there had been no complaints of mold in Apartment No. 2907, other than that of Ashley Stuckey on May 6, 2005. When she and Riverstone’s maintenance supervisor inspected the apartment on May 6, 2005, she observed a circular water stain, about two feet in diameter, on the living room ceiling. A representative of Guaranty Systems, a specialty cleaning contractor, also inspected the air conditioning vents on May 9, 2005, and verbally reported to Ms. Campbell that no evidence of mold was found. A technician of Air Environmental Services, an environmental testing service, reported that his inspection of May 10, 2005 found no toxic mold, and that mold levels with the apartment were no higher than those outside the apartment. Ms. Campbell did acknowledge in her deposition that no professional remediation for mold was performed at the apartment between April 6, 2005, and June 27, 2005, when the plaintiffs vacated it.

The deposition of Ralph Oby, Rivei'-stone’s maintenance supervisor, was also filed in the record. Although he acknowledged that he inspected Apartment No. 2907 following the May 2005 complaint of suspected mold, he testified that he observed only what appeared to be water stains, and that he never suspected mold in the apartment. Because he never suspected the actual presence of mold, he did not institute any remediation steps. He further confirmed that the Guaranty Systems representative who inspected the apartment verbally reported that no mold was present in the apartment, and agreed that there were only water stains. However, the representative | ^recommended that an environmental testing company be consulted. Mr. Oby conceded that generally, if a water problem in an apartment is not corrected within 48 hours, there is a “significant potential” for the growth of mold. Another maintenance worker, Mr. Aubin, was deposed. He described repair work to fix the leaks, but denied ever observing any condition suggestive of the presence of mold in the apartment. He also acknowledged various discussions with Mr. Oby at different times concerning conditions that might lead to development of mold, but he denied knowing of any actual mold problems or issues in the apartment complex.

The plaintiffs filed the affidavit of Brandon Phillips, the employee of Envirotest, Inc., in charge of testing performed at the request of the plaintiffs’ attorney. Mr. Phillips’s affidavit was dated March 6, 2008 and filed with the trial court on March 10, 2008. According to Mr. Phillips’s affidavit, the on-site testing was performed on June 14, 2005. The report referenced in his affidavit shows that the third-party testing laboratory received the samples on June 15, 2005, and issued its certificate of analysis and analysis summary on June 23, 2005. In his affidavit, Mr. Phillips attested to the following:

8. I am of the opinion that a responsible landlord, who is responsible for the maintenance of the Jefferson Place Apartments, should have known of the existence of this mold in sufficient time to properly remediate this mold....
9. ... Ordinarily, a lay person is incapable of determining the difference between mold and dust, as microscopic analysis may be necessary to determine the contents of the dust.
10. I am of the opinion that a responsible, prudent landlord ... should have known what the preconditions for mold were and should have been aware of the significant risk of the development of mold in this apartment unit, due to the fact that there had been multiple complaints of water leaks ... between 1998 and 2005.

11sSignificantly, although he made reference to the reported prior water leaks in his affidavit, Mr. Phillips did not attribute the presence of mold to those leaks; instead, he described “the underlying problem in this apartment which caused the growth of the mold” as “humidity.” Even more significantly, neither the affidavit nor the analysis report show that any of the direct transfer samples (taken from surfaces) were obtained from the actual locations of reported water leaks. Mr. Phillips expressed the opinion that “[although mold may develop in a 48 hour period, based upon [his] experience, the extent of the mold growth found inside of the heating and air conditioning vents ... would not have developed to the extent [he] observed ... on 6/14/05.” (Emphasis added.) He also stated: “[I]t is my opinion evidence [sic] that there has been a humidity problem within the apartment which has been in existence since 1998.” (Emphasis added.) He did not describe the factual bases of that opinion, such as the basis for 1998 being the year the “humidity problem” began. There is nothing in the affidavit evidencing or suggesting that the results of the testing or any of Mr. Phillips’s described conclusions were communicated to the defendants prior to June 23, 2005 at the earliest.

Finally, as pointed out by the defendants, there was no factual foundation set forth in the affidavit that Mr. Phillips was competent to express conclusory opinions relating to the standard of care of a “responsible landlord,” responsible for apartment maintenance. Whether the defendants had the obligation to maintain the apartment and to repair reported problems is not determinative of their duties for purposes of tort liability under the standards imposed by La. R.S. 9:3221. There is a distinction between liability for damages occasioned by defects in leased premises and who has |14the obligation to repair such defects. Hebert v. Neyrey, 445 So.2d 1165,1168 n. 3 (La.1984).

The plaintiffs contend on appeal that Ms. Campbell, as property manager of the complex, should have performed a “reasonable inspection” of Apartment No. 2907 prior to leasing it to Ashley Stuckey. In the first place, the record does not affirmatively show that the defendants failed to inspect the apartment prior to the plaintiffs’ occupancy. As the parties alleging that circumstance as a basis for the defendants’ negligence, the plaintiffs would bear that burden at trial. Secondly, the record confirms that Ashley Stuckey herself inspected the apartment, signed the required apartment move-in inspection form acknowledging that all items were in good condition, and reported no problems with it prior to occupancy. Most importantly, however, the jurisprudence interpreting La. R.S. 9:3221 does not support the imposition of a duty on the part of a lessor to inspect conditions over which a lessee has assumed responsibility.

In Chau v. Takee Outee of Bourbon, Inc., 97-1166 (La.App. 4th Cir.2/11/98), 707 So.2d 495, the plaintiff, an employee of a building’s lessee, was injured when a portion of the ceiling collapsed upon her. She sued the two co-owners and lessor of the building. One co-owner filed a motion for summary judgment based upon a lease clause shifting responsibility for defects to the lessee. It was undisputed that the co-owner had no actual knowledge of the defective ceiling and had received no actual notice of it prior to the accident. The court framed the pivotal issue as follows:

The real issue is whether [the co-owner] should, have made any inspections, or engaged someone to make inspections, as to the safety of the building. In terms of statutory interpretation, does the phrase “should have known” in the statute imply that the owner must take active steps, such as inspections, to determine whether there are defects in the property?

| mId. at p. 4, 707 So.2d at 497. The court reasoned that in order to determine the meaning of the phrase “should have known” as used in the statute, it was necessary to consider the recognized purpose of La. R.S. 9:3221. That purpose was to relieve the owner lessor of strict liability under former La. C.C. arts. 2317, 2322, and 2695 (the latter now embodied in La. C.C. art. 2696), and to limit any liability to the negligence standard expressed in the statute. The court further observed that La. R.S. 9:3221 “was undoubtedly designed to relieve the owner of some of the burdens imposed upon him by law in cases where he had given dominion or control of his premises to a tenant under a lease.” Id. at p. 6, 707 So.2d at 498, quoting Gilliam v. Lumbermens Mut. Cas. Co., 240 La. 697, 124 So.2d 913 (La.1960). The court concluded that “the phrase ‘should have known’ in the statute should not be construed to impose expansive burdens upon the owner lessor,” and that “imposing such a duty to inspect would all but completely deny [the co-owner] the relief granted to her by La. R.S. 9:3221” and would “frustrate the legislative purpose.” Id.

The plaintiff in Jamison v. D’Amico, 06-0842, p. 1 (La.App. 4th Cir.3/14/07), 955 So.2d 161, 163, writ denied, 07-0764 (La.6/1/07), 957 So.2d 179, was injured when the floor of a building collapsed beneath her. She alleged that the owner-lessor was negligent in failing to inspect the premises and failing to make necessary repairs. The court in Jamison concluded that while the plaintiff introduced evidence that the owner-lessor had knowledge of roof leaks, the evidence failed to establish that he knew or should have known of the defective condition of the flooring, the particular defect at issue in that case. Citing its earlier holding in Chau, the court concluded that because the lessee contained a clause shifting responsibility under La. R.S. 9:3221, the owner-lessor was under no duty to inspect the premises, and | Hithere was “no basis to conclude that he should have known of the defect in the flooring of the premises.” Id. The court concluded that the plaintiff failed to produce factual support sufficient to establish that she could meet her burden of proof at trial, and that summary judgment was therefore appropriate.

The plaintiffs’ opposition affidavits do not show that the defendants knew or should have known of any unusual “humidity problem” with Apartment No. 2907, nor any unusual potential for mold or mildew beyond that typical to Louisiana’s climate. At best, the plaintiffs put forth evidence suggestive of the possibility that the defendants should have known of the potential for the development of mold or mildew. But such evidence simply does not rise to evidence creating a genuine issue of material fact on the issue of whether the defendants should have known or received adequate notice of the presence or even probability of development of mold or mildew, the defect of which the plaintiffs complain.

We agree with the trial court’s conclusions that the defendants did not know and did not have reason to know of the alleged mold until their receipt of Ashley Stuckey’s letter of May 6, 2005, and that upon receiving such notice, the defendants sought to investigate and remedy the claimed condition within a reasonable time. See, e.g., Meyers v. Drewes, 196 So.2d 607, 611 (La.App. 4th Cir.1967). The plaintiffs do not dispute that the defendants even offered them the use of another apartment while the report of suspected mold was being investigated. The failure of the plaintiffs to meet their burden of proof on this element is fatal to them opposition to summary judgment.

i17decree

The judgment of the trial court is affirmed. All costs of this appeal are assessed to the plaintiffs-appellants, Ashley Stuckey and Crystal Stuckey.

AFFIRMED.

GUIDRY, J., dissents.


text:
    Timothy HOLLAND v. LOUISIANA BOARD OF PAROLE.
    No. 2008 CA 2392.
    Court of Appeal of Louisiana, First Circuit.
    Aug. 12, 2009.
    Timothy Holland, Kinder, LA, Plaintiff/Appellant In Proper Person.
    James D. “Buddy” Caldwell, Attorney General, Wendell C. Woods, Assistant Attorney General, Baton Rouge, LA, for Defendant/Appellee, Louisiana State Parole Board.

      Before KUHN, GUIDRY, and GAIDRY, JJ.
   GAIDRY, J.

|2In this case, a prisoner appeals a judgment of the Nineteenth Judicial District Court dismissing his petition for judicial review of his parole revocation. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Prisoner, Timothy Holland, filed a petition for judicial review of the Louisiana Parole Board’s (Parole Board) decision revoking his parole. The trial court rendered judgment dismissing his petition for judicial review with prejudice and affirming the revocation decision. Holland appealed, arguing that the trial court erred in dismissing his petition for judicial review because he did not receive an adequate parole revocation hearing and because the parole violations charged are “not correct.”

With regard to the parole revocation hearing, Holland argues that the hearing was inadequate because he was not allowed to address all of the parole violations and to present an affidavit from an ex-girlfriend stating that the marijuana found in his possession was actually hers. However, a review of the audio recording of the hearing reveals that Holland was given the opportunity to address each of the violations and that he never mentioned an affidavit from an ex-girlfriend. Moreover, the affidavit was meaningless since Holland pled guilty to the violation the affidavit concerned, i.e., possession of marijuana. Finally, Holland did not mention these issues in his petition for judicial review, and the trial court is limited in its review of the Parole Board’s decision to those issues raised in the petition. La. R.S. 15:574.11(0).

Holland also argues that the allegation that he failed to pay his parole supervision fees was not correct, and therefore the court erred in dismissing his petition for judicial review. This issue was not raised in Holland’s |2petition for judicial review, and was therefore not reviewed by the trial court. La. R.S. 15:574.11(0). Nevertheless, a review of the recording of the parole revocation hearing reveals that Holland did in fact fail to pay his supervision fees while out on parole, but he pled not guilty to the allegation at his hearing because he planned to have the fees taken out of his income tax refund. Regardless of the issue of his failure to pay parole supervision fees, the Parole Board members made it clear that they were revoking his parole due to his criminal activity while on parole, evidenced by his plea of guilty to a marijuana possession charge. This assignment of error is without merit.

DECREE

The trial court judgment dismissing Timothy Holland’s petition for judicial review with prejudice is affirmed. Costs of this appeal are to be borne by appellant, Timothy Holland.

AFFIRMED.