author: STONE, J.

text:
    RED RIVER PARISH TAX AGENCY and Elaine Moore in Her Capacity as Tax Administrator of Red River Parish Tax Agency, Plaintiff-Appellant v. SWEPI, LP, Defendant-Appellee
    No. 51,244-CA
    Court of Appeal of Louisiana, Second Circuit.
    April 5, 2017

      GOLD, WEEMS, BRUSER, SUES & RUNDELL, By: Gregory Brian Upton, Stephen Alan LaFleur, John Chris Guil-lett, Jonathan D. Stokes, for Counsel for Appellants
    JONES WALKER, LLP, By: Jesse R. Adams, III, for Counsel for Appellee, SWEPI, LP
    TAYLOR, PORTER, BROOKS & PHILLIPS, L.L.P., By: Jonathan A. Moore, for Counsel for Appellee, Halliburton Energy Services, Inc.
    Before DREW, MOORE, and STONE, JJ.
   STONE, J.

| Appellants, Red River Parish Tax Agency and Elaine Moore, in her capacity as tax administrator for Red River Parish Tax Agency (“the Collector”), filed a petition for declaratory judgment seeking a declaration that Appellee, SWEPI, LP (“SWEPI”), is not entitled to a sales tax refund. The district court granted SWEPI’s exceptions of no cause of action, no right of action, and lack of subject matter jurisdiction. For the following reasons, we affirm.

FACTS AND PROCEDURAL BACKGROUND

SWEPI is an oil and gas exploration company that owns and operates natural gas wells in Red River Parish. In the course and scope of its operations, SWEPI contracted for hydraulic fracturing services (“fracking services”) with Halliburton Energy Services, Inc. (“Halliburton”). During the taxable periods between January 2012 and August 2012, SWEPI alleged it erroneously paid Halliburton $880,312.12 in sales tax on certain proppant materials used by Halliburton in performance of its fracking services, SWEPI filed a request for a refund (“Claim for Refund”) asserting its payment of the sales tax constituted an “overpayment,” pursuant to La. R.S. 47:337.77. However, the Collector denied the request.

On April 28, 2015, SWEPI appealed the denial of its Claim for Refund to the Louisiana Board of Tax Appeals (“BTA”), pursuant to La. R.S. 47:337.81. SWEPI sought a redetermination from the BTA that it is entitled to a refund of the sales tax it paid to Halliburton.

^Approximately a week later, the Collector disregarded the appeal pending before the BTA, and filed a petition for declaratory judgment with the 39th Judicial District Court. The Collector sought a declaration that SWEPI is not entitled to a refund, and alternatively,, that it is not liable to SWEPI for the refund. In response, SWEPI filed peremptory exceptions of no cause and no right of action, and a declina-tory, exception, of lack of subject matter jurisdiction. SWEPI argued the district court lacked jurisdiction to hear the matter because the BTA is vested with exclusive original jurisdiction over local tax refund disputes.

While awaiting a ruling oh the exceptions, the Collector filed a motion with the BTA to transfer SWEPI’s appeal to district court. According to the Collector, La. Acts 201⅜ No. 640 (“Act 640”), which expanded the BTA’s jurisdiction to include local sales, and use tax refunds, unconstitutionally revoked district courts of the original jurisdiction vested in them by La. Const, art. V, § 16. The Collector argued the transfer of SWEPI’s appeal to district court was mandated by La, R.S. 47:1432(B)(1) (“the transfer statute”) in order for the Collector to challenge the constitutionality of Act 640. After a hearing, the BTA denied the motion, finding the transfer statute did not defeat its jurisdiction over local tax refund disputes.

|sOn May 24, 2016, the district court granted SWEPI’s exceptions and dismissed the Collector’s petition for declaratory judgment. The district court found the legislature vested the BTA with exclusive original jurisdiction over, local tax refund disputes. Consequently, the district court concluded it lacked subject matter jurisdiction to consider the merits of the Collector’s petition for declaratory judgment, and incidentally, the Collector had no cause or right of action in district court. The Collector now appeals.

DISCUSSION

Subject Matter Jurisdiction

Subject matter jurisdiction 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. Subject matter jurisdiction is created by the .constitution or legislative enactment (see, e.g., La. Const. art. V), and cannot be conferred or waived by the parties. La. C.C.P. arts. 2, 3, and 925; Luffey ex rel. Fredericksburg Properties of Texas, LP v. Fredericksburg Properties of Texas, LP, 37,591 (La.App. 2 Cir. 12/10/03), 862 So.2d 403, 406.

The Collector argues the Louisiana legislature in enacting Act 640 did not divest district courts of subject matter jurisdiction over local tax refund disputes. Moré so, the Collector asserts, pursuant to La. Const. art. V, § 16(A), the legislature is prohibited from divesting district courts of original jurisdiction over these disputes.

The Louisiana Constitution vests the power of taxation in the legislature and mandates that the legislature “provide*a complete and adequate remedy for the prompt recovery of an illegal tax paid by a | ¿taxpayer.” La. Const. art. VII, §§ 1 and 3(A). One of the remedies created by the legislature in fulfillment of its obligation under Article VII, § 3(A) is the overpayment refund procedure enumerated in La. R.S. 47:1621, et seq. This procedure was made applicable to local governments in La. R.S. 47:337.77, et seq. Tin, Inc. v. Washington Par. Sheriff’s Office, 2012-2056 (La. 03/19/13), 112 So.3d 197, 203 (quoting St. Martin v. State, 2009-0935 (La. 12/01/09), 25 So.3d 736, 738).

The BTA was created by the legislature to act as an appeal board to hear- and decide, at a minimum cost to the taxpayer, questions of law and fact arising from disputes between taxpayers and tax collectors. La. R.S. 47:1401. Prior to 2014, the BTA exercised primary and exclusive jurisdiction over state tax refund disputes. In 2014, the legislature expanded the BTA’s jurisdiction to include local tax refund disputes. Through Act 640, the legislature created a Local Tax Division to act “as an independent agency and authority within the [BTA] for the purposes of exercising jurisdiction over disputes involving local collectors.” Furthermore, Act 640 amended La. R.S. 47:337.81 and La. R.S. 47:1431 to change the forum for a taxpayer’s appeal of a refund claim denial by a local tax collector from the district court to the BTA, and amended La. R.S. 47:1434-36 to provide the court of appeal with exclusive jurisdiction to review the decisions of the BTA. See also La. R.S. 47:1401.

|/The BTA acts as a trial court in finding facts and applying the law. St. Martin, supra; Int’l Paper, Inc. v. Bridges, 2007-1151 (La. 01/16/08), 972 So.2d 1121, 1128. The Supreme Court has held the “jurisdiction to resolve tax-related disputes is constitutionally and statutorily granted to the [BTA] which is authorized to hear and decide disputes and render judgments.” St. Martin, 25 So.3d at 741. Moreover, the Supreme Court has held the BTA’s jurisdiction is not circumscribed by Article V, § 16(A), St. Martin, supra (citing Clark v. State, 2002-1936 (La.App. 1 Cir. 01/28/04), 873 So.2d 32, 36, writ denied, 2004-0452 (La. 04/23/04), 870 So.2d 300).

In the instant matter, SWEPI chose to appeal the denial of its Claim for Refund pursuant to La. R.S. 47:337.81 which explicitly states that “the taxpayer may appeal a denial of a claim for refund to the Board of Tax Appeals, as provided by law.” Thereafter, the tax collector may answer such appeal, and assert any questions of law or fact it has in the matter. Once the BTA renders judgment, it may be reviewed by a court of appeal. La. R.S. 47:1434. The existence of a specific statutory procedure generally implies a legislative intent that the' special- statutory procedure be the exclusive means of obtaining judicial review in' the situations to which it applies. St. Martin, supra. As a result, we find the BTA is vested with exclusive original-. jurisdiction over the merits of SWEPI’s- appeal, and the district court properly dismissed the Collector’s petition for lack of subject matter jurisdiction.

No Cause of Action

The function of the peremptory exception of no cause of action is to question whether the law extends a remedy to anyone under the factual allegations of the petition. Hayes v. Gallagher Bassett Servs., Inc., 41,579 6(La.App. 2 Cir. 12/13/06), 945 So.2d 911, 912, writ denied, 2007-0085 (La. 03/30/07), 953 So.2d 73. The exception is tried on the face of the pleadings and the court accepts the facts alleged in the petition as true, determining whether the law affords relief to the plaintiff if those facts are proved at trial.

Hayes, supra.

The Collector argues the Uniform Local Sales Tax Code (“ULSTC”) allows it to seek declaratory relief in district court as to whether it owes a refund to SWEPI. However, our review reveals there is no procedure available for the Collector to circumvent the BTA by unilaterally filing suit against SWEPI in district court, specifically when the matter is pending before the BTA. As stated above, La. R.S. 47:337.81 and La. R.S. 47:1401, et seq. provide the statutorily mandated procedure for resolving disputes regarding local tax refunds. As a result, we find the law does not extend a remedy to the Collector under the factual allegations in its petition, and the trial court properly granted SWEPI’s exception of no cause of action.

No Right of Action

The purpose of the peremptory exception of no right of action is to determine whether a plaintiff has a real and actual interest in an action or belongs to a particular class to which the law grants a remedy for a particular harm alleged. Campbell v. Nexion Health at Claiborne, Inc., 49,150 (La.App. 2 Cir. 10/01/14), 149 So.3d 436.

In support of its argument that it has a right to seek declaratory relief in district court, the Collector cites numerous ULSTC statutes regarding the remedies available to tax collectors seeking to enforce the collection of taxes. See La. R.S. 47:337.45 and La. R.S. 337.101. However, the statutes used by the Collector are not applicable to the instant matter because the ^Collector is not attempting to collect a tax; the Collector is attempting to defend its denial of SWEPI’s Claim for Refund. La. R.S. 47:337.81 provides only the taxpayer with the right to appeal the denial of a local tax refund claim. During this appellate process, the BTA is obligated to give the taxpayer, as well as the tax collector, the right to be heard. Consequently, the trial court properly granted SWEPI’s exception of no right of action.

CONCLUSION

For the foregoing reasons, the trial court’s judgment granting SWEPI’s exceptions of no cause of action, no right of action, and lack of subject matter jurisdiction is affirmed. Costs of this appeal are assessed to the appellants.

AFFIRMED.

      . La. R.S. 47:337.81(A)(2) provides in pertinent part that "the taxpayer may appeal a denial of a claim for refund to the Board of Tax Appeals, as provided by law.”

      . La. R.S. 47:1432(B)(1)(a) provides in pertinent part:
      The board has no jurisdiction to declare a statute or ordinance unconstitutional. When the taxpayer or collector has pled the unconstitutionality of a statute or ordinance, the board shall order the case transferred to the district court of proper venue [.]

      . The Collector filed an application for supervisory review of the BTA’s decision with this court on March 17, 2016, claiming the transfer statute applied to constitutional challenges to jurisdictional statutes. On May 27, 2016, three daysafter the district .court rendered judgment on SWEPI's exceptions, this court granted the Collector's writ application, and ordered the BTA to transfer the suit to district court.

      . The legislature previously enacted the Uniform Local Sales Tax Code ("ULSTC”) in 2003 for the primary purpose of “promoting uniformity to the extent possible in the assessment, collection, administration, and enforcement of the sales and use taxes imposed by taxing authorities and, by compiling them, making them readily available in one place in the revised statutes.” La. R.S. 47:337.2(A)(l)(b). .The legislature specifically provided that its provisions preempted any contrary provisions of law and local ordinances. La. R.S. 47:337.2(B)(1).


source: Caselaw Access Project

author: Judge Terri F. Love

license: Public Domain

text:
    John JOHNSON, Individually and as Representative of the Class of those Similarly Situated v. ORLEANS PARISH SCHOOL BOARD, XYZ Insurance Company, City of New Orleans, and ABC Insurance Company
    NO. 2014-CA-0277
    Court of Appeal of Louisiana, Fourth Circuit.
    April 26, 2017

      Linda S. Harang, Law Offices of Warren A. Forstall, Jr,, P.L.C., 320 N. Carrolton Ave, Suite 200, New Orleans, LA 70119-5111, AND, Suzette Peychaud Bagneris, THE BAGNERIS FIRM, L.L.C., P.O. Box 6129, New Orleans, LA 70124, AND, Stephen B. Murray, Sr., MURRAY LAW FIRM, 650 Poydras Street, Suite 2150, New Orleans, LA 70130 AND, George J.G. Roux, 127 Camp Street, New Orleans, LA 70130, AND, Joseph Michael Bruno, BRUNO & BRUNO, 855 Baronne Street, New Orleans, LA 70113, COUNSEL FOR PLAINTIFFS/APPELLEES, FLIGHT I PLAINTIFFS
    Roy J. Rodney, Jr., John K. Etter, RODNEY & ETTER, LLC, 365 Canal Street, Suite 2690, New Orleans, LA 70130, COUNSEL FOR DEFENDANT/APPELLANT, HOUSING AUTHORITY, OF NEW ORLEANS
    Adam J. Swensek, Chief Deputy City Attorney, Rebecca H. Dietz, City Attorney, 1300 Perdido Street, Room 5E03, New Orleans, LA 70112, COUNSEL FOR DEFENDANT/APPELLANT, CITY OF NEW ORLEANS
    (Court composed of Judge Terri F. Love, Judge Sandra Cabrina Jenkins, Judge Marion F. Edwards, Pro Tempore)

      . Retired Judge Marion F. Edwards served as judge pro tempore on this matter through March 31, 2017, and thereafter, as judge ad hoc by order of the Louisiana Supreme Court dated March 28, 2017,

   Judge Terri F. Love

|, This appeal arises from class action litigation regarding damages suffered by plaintiffs buying property, living, or working on or near’ a former landfill. Having previously adjudicated the class certification and common issues of liability against the housing authority and the City of New Orleans, the trial court began assessing damages to the first flight of non-class representative plaintiffs. The trial court assessed the plaintiffs’ emotional distress damages and awards for diminution in property values. The housing authority and the City of New Orleans appealed the trial court’s judgment contending that the claims were prescribed, awards were improperly calculated, and that workers’ compensation barred some plaintiffs’ recovery.

We find that numerous assignments of error raised on appeal are barred by the doctrine of res judicata. Further, the plaintiffs’ claims were not prescribed, as the suit was filed within one year of the discovery of the contamination. The exclusive remedy of worker’s compensation was untimely raised and does not apply. The plaintiffs proved they suffered from emotional distress, and the trial court did not abuse its discretion in making those awards. The trial court did not commit manifest error by calculating the diminution in property values based on a combination of the expert testimony presented. The defendants were not entitled |2to an offset for payments received by the plaintiffs after Hurricane Katrina because the payments were not duplicative. Accordingly, the judgment of the trial court is affirmed.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Plaintiffs’ complaints arose from working, renting, or owning a home on or adjacent to the Agriculture Street Landfill (“ASL”). Plaintiffs were exposed to toxic materials after the U.S. Department of Housing and Urban Development (“HUD”) approved the development of public and private housing, elderly housing, and businesses on and near a site that the City of New Orleans (“City”) previously leased and utilized as the ASL. Plaintiffs are the first flight of plaintiffs to proceed to trial regarding their emotional distress and property damages claims since the initial liability trial. We previously summarized the facts as follows:

From the early 1900’s until approximately 1958, the City of New Orleans (City) leased more than one hundred acres of, land in the City’s ninth ward for the operation of a municipal landfill and garbage dump. The site, known as the Agriculture Street Landfill (ASL), was bordered by Almonaster Boulevard on the west, Higgins Boulevard on the north, Louisa Street on the east, and the Peoples Avenue Canal .and railroad tracks on the south. In 1965, the City reopened the ASL site for the disposal of massive quantities of debris created by Hurricane Betsy.
In 1967, the City and the Housing Authority of New Orleans (HANO) entered into a cooperative agreement for the development of residential properties in the Desire area of the City. Between ,1969 and 1971, Drexel Development Corporation constructed the Press Park town homes and apartments for HANO. No remediation or special site preparation was done before Press Park was constructed. In 1971, HANO purchased the completed Press Park project from Drexel and has owned and operated the site since that time. Some Press Park tenants participated in a “turn key” program, whereby a portion of their monthly rent was placed in an escrow account and applied toward the purchase of their town home unit. When their escrow account reached the amount needed for purchase of the unit, HANO ^transferred title of the unit to the tenant. HANO never advised any of the' prospective' Press Park tenants or home buyers that the site had once been a part of the City’s landfill.
In the late 1970s, the City performed soil testing in the Gordon Plaza area of the ASL neighborhood, in anticipation of the construction- of the Gordon Plaza single-family homes. As a result of the soil testing, the City required the developers of Gordon Plaza to add topsoil before constructing the homes. In 1980, sixty-seven ’ family homes comprising Gordon Plaza were built. The Gordon Plaza home buyers were not told that their homes were located on 'what had once been a part of the City’s landfill.
In 1975, the Orleans Parish School Board (School Board) purchased a tract of land along Abundance Street in the ASL neighborhood, with the intent to build an elementary school. In 1984, the School Board began plans for construction of Moton Elementary School on the site. Because the School-Board knew when it purchased the property that the site had once been a part of the City’s landfill, the School Board hired engineering firms to conduct an environmental evaluation of the property. Environmental testing on the site identified the presence of numerous toxic and hazardous materials, including lead, arsenic, mercury, and polycyclic aromatic hydrocarbons. Because of the presence of the toxic and hazardous materials, the School Board hired several environmental consultants to advise them on how the site could be remediated to eliminate the danger of harmful exposures created by the presence of hazardous materials. The environmental consultant's recommended that the entire site be excavated to a depth of three feet, with the top three feet of contaminated soil removed and' replaced with two feet of clean topsoil. Between the clean topsoil and the hazardous materials, the consultants recommended that a layer of six inches to one foot of impermeable clay be placed over the entire site. In 1986-87, Moton Elementary School opened for kindergarten through sixth grade with an enrollment of approximately nine hundred students. The School Board did .not tell its employees or the parents of the students that the school had been built on a part of .the .City’s former landfill or that environmental testing had identified the presence of toxic materials on the site. During the 1991-92 school-year, there were plumbing problems at Moton Elementary which required under-slab construction and repairs. This necessitated the construction of a trench and the breach of the three-foot layer of clean topsoil.
I/The Environmental Protection Agency (EPA) tested the soil in parts of the ASL neighborhood in 1986 to determine whether the ASL site was contaminated. The residents were not given the results of the EPA’s 1986 soil tests nor were they told that their property was contaminated or given any special instructions to follow or precautions to take to protect themselves from exposures to the soil. Between 1985" and 1986, the Louisiana Department of Health and the Agency for Toxic Substance Disease Registry (ATSDR) conducted a public health screening of children in the ASL neighborhood to determine whether there was an increased incidence of elevated blood lead levels. The residents were never told that their children had been exposed to excess levels of lead, nor were they given any special instructions or precautions to follow to protect their children from exposures to the soil.
In 1998, the EPA came back to the ASL site and conducted more Soil tests throughout the neighborhood. The tests indicated that the soil was contaminated with more than one hundred forty toxic and hazardous materials, more than forty of which are known to cause cancer in humans. The EPA told the ASL residents to take special precautions to protect themselves from any exposure to the soil. In 1994, the EPA placed a portion of the ASL neighborhood on the National Priorities List and later that same year it declared that the ASL site was sufficiently contaminated to be named a Superfund site. Later that same year, the School Board closed the •Moton Elementary School campus and the ASL residents formed the Concerned Citizens of the Agriculture Street Landfill, Inc. to qualify for federal grant funding to pay for the services of an environmental technical advisor.
In the-mid-1990s, the EPA proposed a remediation, plan for the ASL site that .would remove and replace the.top two feet of. soil, where possible, with a semipermeable barrier between the- .dean topsoil and the contaminated soil. The soil under buildings and the streets would not be disturbed. The ASL residents opposed the EPA’s plan as being inadequate to remediate the site. The ASL residents supported an alternative voluntary relocation/buy-out plan. The EPA rejected the requests of the ASL residents and from 2000-2001, the EPA financed a $20,000,000.00 remediation project. In the remediation process, approximately two feet of soil was removed from around houses and buildings where possible. Due to underground utilities, water lines, etc., only one foot of soil was removed in some areas. After the EPA completed the remediation work, the ASL residents were given a certificate of completion ’|f,confirming that their property had been partially remediated. The EPA also gave'the ASL residents a list of permanent restrictions on the use of their property and advised the ASL residents that they were responsible for maintaining the integrity of the clean layer of topsoil and the felt-like material that comprises the semi-permeable barrier between the clean layer of topsoil and the ground below.
Not satisfied with the steps taken to correct the problems with the ASL neighborhood, a number of the residents proceeded with a class action lawsuit. The named defendants in the action include the City, HANO, the School Board, and HANO’s insurers, National Union Fire Insurance Company of Pittsburgh, Pennsylvania, U.S. Fire Insurance Company, Republic Insurance Company, and South American Insurance Company/Louisiana Insurance Guaranty Association. The plaintiff class has previously been defined as follows: 1) current and former residents who have lived on the site of the former landfill, as defined as the area bounded on the north by Higgins Blvd., on the east by Louisa Street, on the south by Florida Avenue and on the west by Al-monaster Avenue and the Peoples Avenue Canal, for at least twelve months prior to February 1, 1994; 2) current and former business owners and their employees who have operated a business on the former landfill site, as described above, for at least twelve months prior to February 1, 1994; 3) current residents who are the owners of record of their homes, or who are buying their homes but have not yet completed their payments; and 4) former students and employees of Moton Elementary School who attended or worked at the school on the site of the former landfill for at least twelve months or one school year prior to February 1,1994.

Johnson v. Orleans Par. Sch. Bd., 06-1223, pp. 1-6 (La.App. 4 Cir. 1/30/08), 975 So.2d 698, 703-05 (“Johnson VI”).

The trial court conducted a common issues and liability trial that also adjudicated the nine class representatives’ damages claims. “The trial court found |fithe City (50%), HANO (50%) and their insurers liable jointly and in solido to the members of the first three sub-classes.” Johnson VI, 06-1223, p. 6, 975 So.2d at 705. “The trial court found that the city was negligent in its actions and inactions that resulted in the conversion of its own former municipal landfill into a residential area that the EPA deemed unreasonably dangerous in 1994.” Id., 06-1223, pp. 7-8, 975 So.2d at 706. “This finding was based on Civil Code Article 2315 as it existed prior to 1980.” Id. “HANO was found negligent under Civil Code Article 2317 as it existed prior to 1980.” Id.

On appeal, we reduced the trial court’s awards for emotional distress damages by 50% and affirmed the remainder of the judgment. Johnson VI, 06-1223, p. 24, 975 So.2d at 714. The Louisiana Supreme Court denied the seven writs sought. Johnson v. Orleans Par. Sch. Bd., 08-0607 (La. 6/27/08), 983 So.2d 1289, and writ denied, 08-0664 (La. 6/27/08), 983 So.2d 1289, and writ denied, 08-0671 (La. 6/27/08), 983 So.2d 1289, and unit denied, 08-0672 (La. 6/27/08), 983 So.2d 1290, and writ denied, 08-0673 (La. 6/27/08), 983 So.2d 1290, and writ denied, 08-0674 (La. 6/27/08), 983 So.2d 1290, and unit denied, 08-0675 (La. 6/27/08), 983 So.2d 1291, and unit denied, 08-0682 (La. 6/27/08), 983 So.2d 1291. The United States Supreme Court also subsequently denied cert. Nat’l Union Fire Ins. Co. of Pittsburgh, Pennsylvania v. Allen, 555 U.S. 1085, 129 S.Ct. 768, 172 L.Ed.2d 756 (2008).

The damages trial for the first flight of 65 non-class representative plaintiffs commenced in 2013. Following a lengthy bench trial, the trial court dismissed four plaintiffs’ claims for their failure to appear at trial. The trial court issued a lengthy judgment, which was later amended after motions for new trial were filed. The trial court denied the defendants’ claims of prescription, and found that the 17affirmative defense of worker’s compensation was untimely raised, as it was raised, for the first time in 20 years, at trial. The trial court awarded the remaining plaintiffs damages for emotional distress. Further, the trial court made awards for diminution in property values utilizing present day values for Gordon Plaza residents, and pre-Hurricane Katrina values for Press Park townhome owners. HANO and the City’s (collectively “Defendants”) suspensive appeals followed.

The Defendants contend that the trial court erred by finding that the plaintiffs’ claims were not prescribed, erred by awarding/calculating emotional distress damages, and that the calculations for the diminution of property awards were flawed. The Defendants also assert that the trial court erred by not assigning fault to anyone other than them, holding them solidarity liable, and holding them liable for damages caused by Hurricane Katrina.

STANDARD OF REVIEW

Factual determinations are reviewed using the manifest error/clearty wrong standard of review. Hall v. Folger Coffee Co., 03-1734, p. 9 (La. 4/14/04), 874 So.2d 90, 98. This “precludes the setting aside of a district court’s finding of fact unless that finding is clearly wrong in light of the record reviewed in its entirety.” Id. “[A] reviewing court may not merely decide if it would have found the facts of the case differently.” Id. “Therefore, the appellate review of facts is not completed by reading so much of the record as will reveal a reasonable factual basis for the finding in the trial court; there must be a further determination that the record establishes that the finding is not clearly wrong (manifestly erroneous).” Arceneaux v. Domingue, 365 So.2d 1330, 1333 (La. 1978). “Accordingly, if an appellate court concludes that the trial court’s factual findings are clearly wrong, lathe mere fact that some record evidence appears which would furnish a reasonable factual basis for the contested findings does not require affirmance.” Mart v. Hill, 505 So.2d 1120, 1127 (La. 1987).

Additionally, “[w]hen findings are based on determinations regarding the credibility of witnesses, the manifest error-clearty wrong standard demands great deference to the trier of fact’s findings.” Rosell v. ESCO, 549 So.2d 840, 844 (La. 1989). “[0]nty the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said.” Id. “Where documents or objective evidence so contradict the witness’s story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable fact finder would not credit the witness’s story, the court of appeal may well find manifest error or clear wrongness.” Id., 549 So.2d at 844-45. “[Wjhere such factors are not present, and a factfinder’s finding is based on its decision to credit the testimony of one of two or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong;” Id., 549 So.2d at 845.

“Although appellate courts must accord great weight to the factual findings of the trial judge, these same courts have a duty to determine if the fact finder was justified in his conclusions.” Mari, 505 So.2d at 1127. Further,

[a]n appellate court is not required, because of the foregoing principles of appellate review, to affirm the trier of fact’s refusal to accept as credible un-contradicted testimony or greatly preponderant objectively-corroborated testimony where the record indicates no sound reason for its rejection and where the factual finding itself has been reached by overlooking applicable legal principles.

Id.

“However, when a legal error has restricted or interdicted the fact-finding | flprocess, the abuse of discretion standard no longer applies, and we apply a de novo standard of review.” Provosty v. Arc Constr., LLC, 15-1219, p. 7 (La.App. 4 Cir. 11/2/16), 204 So.3d 623, 629. “A legal error exists upon the application of incorrect principles of law that deprives a party of substantial rights.” Id.

When reviewing questions of law, 'appellate courts use the de novo standard. Harold A. Asher, CPA LLC v. Haik, 12-0771, p. 5 (La.App. 4 Cir. 4/10/13), 116 So.3d 720, 724. Mixed questions of law and fact are reviewed with the manifest error standard of review. Barrois v. Panepinto, 13-0577, p. 3 (La.App. 4 Cir. 1/8/14); 133 So.3d 36, 38.

RES JUDICATA

The Defendants raise numerous assignments of error that ,the plaintiffs contend are precluded because of res judi-cata. As the. plaintiffs’ argument is meritorious, we address these matters first.

“The civilian concept of res ju-dicata is based upon a presumption of correctness.” Burguieres v. Pollingue, 02-1385, p. 7 (La. 2/25/03), 843 So.2d 1049, 1053. “The doctrine of res judicata precludes re-litigation of claims and issues arising out of the same factual circumstances when there is a valid final judgment.” Myers v. Nat’l Union Fire Ins. Co. of Louisiana, 09-1517, p. 5 (La.App. 4 Cir. 5/19/10), 43 So.3d 207, 210. “It promotes judicial efficiency and final resolution of disputes.” Ave. Plaza, L.L.C. v. Falgoust, 96-0173, p. 4 (La. 7/2/96), 676 So.2d 1077, 1079. La. R.S. 13:4231 provides:

Except as otherwise provided by law, a valid and final judgment .is conclusive between the same parties, except on appeal or other direct review, to the following extent:
(1) If the judgment is in favor of the plaintiff, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter [1nof the litigation are extinguished and merged in the judgment.
(2) If the judgment is in favor of the defendant, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and the judgment bars ,a subsequent, action on those causes of action.
(3) A judgment in favor of either the plaintiff or the defendant is conclusive, in any subsequent action between them, with respect to any issue actually litigated and determined if its determination was essential to that judgment.

“Res judicata cannot be invoked unless all its essential elements are present and each necessary element has been established beyond all question.” Myers, 09-1517, p. 6, 43 So.3d at 211.

In regards to class actions, “[a] definitive judgment on the merits rendered in a class action concludes all members of-the class, whether joined in the action or not, if the members who were joined as parties fairly insured adequate representation of all members of the class.” La, C.C.P. art. 597.

The present appeal pertains to the damages trial of the first flight of non-class representative plaintiffs in the ASL class action. The previous common issues trial determined liability and methods of awarding emotional distress damages. The parties are identical: the defendants and members of the certified class. The Louisiana Supreme Court denied writs, and the United States Supreme Court denied cert. Accordingly, we find that the holdings from the first trial bar reconsideration of the Defendants’ following assignments of error: 1) the trial court erred in using a formula for awarding emotional distress damages, 2) the trial court did not consider comparative fault of other parties, and 3) the trial court erred in holding HANO and the City solidarily liable.

^PRESCRIPTION

The trial court found that the class members’ claims were timely filed on August 31, 1993. The Defendants contend that the trial court erred 'by finding that the plaintiffs’ claims were not prescribed, as many of the 61 plaintiffs had -some degree of knowledge about a landfill or city dump.

“[P]rescription is defined as a means of acquiring real rights or of losing certain rights as the result of the passage of time.” Taranto v. Louisiana Citizens Prop. Ins. Corp., 10-0105, p. 5 (La. 3/15/11), 62 So.3d 721, 726, “[T]he fundamental purpose of the prescription statutes is ‘to afford a defendant economic and psychological security if no. claim is made timely and to protect the defendant from stale claims and from the loss, or non-preservation of relevant proof.’” Id., 10-0105, p. 6, 62 So.3d at 726, quoting Cichirillo v. Avondale Indus., Inc., 04-2894, 04-2918, p. 9 (La. 11/29/05), 917 So.2d 424, 430.

“Prescription runs against all persons unless exception is established by legislation.” La. C.C. art. 3467. “Prescription begins to run when it is determined that damage was sustained.” Landry v. Blaise, Inc., 02-0822, p. 4 (La.App. 4 Cir. 10/23/02), 829 So.2d 661, 664. “Damage is sustained, for purposes of prescription, only when -it has manifested itself with sufficient certainty to be susceptible to proof, in a court of justice.” Id., 02-0822, p. 4, 829 So.2d at 664-65. “Liberative prescription on the claims arising out of the transactions or occurrences described in a petition brought on behalf of a class is suspended on the filing of the petition as to all members of the class as defined or described therein.” La. C.C.P. art. 596.

However, Louisiana has developed “the jurisprudential doctrine of contra non valentem as an exception to this statutory rule.” Marin v. Exxon Mobil Corp., 1209-2368, 09-2371, p. 11 (La. 10/19/10), 48 So.3d 234, 245, The four situations wherein contra non valentem may apply are:

(1) where there was some legal cause which prevented the courts or their officers from taking cognizance of or acting on the plaintiffs action;
(2) where there was some condition coupled with the contract or connected with the proceedings which prevented the creditor from suing or acting;
(3) where the debtor himself has done some act effectually to prevent the creditor from availing himself of his cause of action; or
(4) where the cause of action is neither known nor reasonably knowable by the plaintiff even though plaintiffs ignorance is not induced by the defendant.

Id., 09-2368, 09-2371, p. 12, 48 So.3d at 245. “[T]he Louisiana Supreme Court has cautioned that the doctrine only applies in exceptional circumstances.” Felix v. Safeway Ins. Co., 15-0701, p. 5 (La.App. 4 Cir. 12/16/15), 183 So.3d 627, 630. “[Pjrescription does not run against one who is ignorant of the facts upon which his cause of action is based, as long as such ignorance is not willful, negligent or unreasonable.” Johnson VI, 06-1223, p. 11, 975 So.2d at 708.

While the first three scenarios do not apply to the present matter, the trial court and the Johnson VI court found, and, we agree, that the fourth category known as the discovery rule applies to the plaintiffs’ claims. After reviewing the plaintiffs’ trial testimony, the trial testimony of family members of the deceased, and the depositions of those plaintiffs deceased or unavailable, nothing indicates that the plaintiffs knew or should have known that the land they lived or worked on contained numerous dangerous and hazardous toxins, some of which have been shown to cause cancer. The trial court aptly summarized the facts surrounding prescription of the plaintiffs’ claims as follows:

the Plaintiffs were given no information about the true nature of their neighborhood before they purchased their | ^property or moved to the Site as a tenant.
From 1984 through 1993 the residents were told by various governmental agencies—the EPA, the ATSDR, the Louisiana Department of Environmental Quality, the Louisiana Department of Health, the School Board—that their neighborhood was safe. During this same period of time, the City and HANO were publicly silent. In fact, the City and HANO claim that they did not know the property is [sic] contaminated until 1993.
Although there were some environmental investigations in the ASL neighborhood in the mid-1980s, the Plaintiffs were not given sufficient information such that they should have known that their properties were contaminated or that they were in danger. Until the late part of 1993, no one told any of the Plaintiffs that their health was at risk, or that they should take any special precautions to protect themselves from exposure to the soil in their own properties.
This trial afforded the Court the opportunity to observe and judge the credibility of the Plaintiffs as they testified on the subject of when they first learned that their property was contaminated. The Plaintiffs were subject to rigorous, intense cross examination by defense counsel. The Court is impressed with the sincerity of these Plaintiffs, and is convinced that they did not know, nor could they reasonably have known, until at least sometime in 1993 that their neighborhood is contaminated.
The Court acknowledges that, before they moved to the ASL site, some of the Flight 1 Plaintiffs knew, by virtue of having lived in the “Desire Housing” area or the area adjacent to the ASL site, that the City had once operated a garbage dump or landfill somewhere in the ASL neighborhood. But, for unsophisticated' citizens like these, having knowledge that there was once a garbage dump (which to most meant nothing more than ordinary “household garbage”) somewhere in the vast ASL acreage does not satisfy the legal standard for “knowing” the true nature of the toxic and hazardous materials that the City was dumping and/or permitting to be dumped on the ASL site. .
In fact, throughout the 20-year history of this case, the municipal Defendants, the City, HANO, and the Orleans Parish School Board, have maintained that— until the EPA declared a portion of the ASL neighborhood to be a “Superfund site” in 1994—they did not know the existence, nature, and/or extent of the contamination of the ASL site. It would be folly for this or any Court to hold the unsuspecting and unsophisticated Plaintiffs to a higher standard of knowledge than the municipal | ^agencies that created this environmental disaster in the first place. Furthermore, given the vast size of the ASL neighborhood, there was no competent evidence introduced at trial establishing that any Flight 1 Plaintiff knew or should have known that his or her specific property, lot, house, apartment, or town house was actually located directly on top of the former “dump”.
The Court also finds that the Defendants should not benefit from their own silence. During the same period of time—the mid-1980s—the Defendants claim they knew nothing about the contaminated condition of the soil or the hazardous materials to which the Plaintiffs were being exposed on a daily basis. Nevertheless, the Defendants claim that somehow the Plaintiffs, who are ordinary citizens with no special education or scientific training (only a few have formal education beyond high school), should have been able to acquire knowledge superior to that of the City (which had its own Health Department and its own Office of Environmental Affairs), HAND,' the Louisiana Department of Health, the Louisiana Department of Environmental Quality, the Agency for Toxic Substance and Disease Registry (ATSDR), and the EPA.
The Court is, therefore, still satisfied that if any of the Flight 1 Plaintiffs had known the true condition of the ÁSL site before they purchased their properties they would not have agreed to buy property there, move there, work there, or send their young children to school there.
The Defendants did not carry their burden of proof on this affirmative defense as to any of the Flight 1 Plaintiffs.

Furthermore, as stated by the Johnson VI court, “[i]f- we are to assume that these defendants, who were in a superior position as to know what was going on, were not overly concerned about any potential harm or injury to the plaintiffs, we must assume the same for the plaintiffs.” Johnson VI, 06-1223, pp. 11-12, 975 So.2d at 708, The plaintiffs all testified that they learned of the contamination around 1993-1994, within one year of filing suit. Accordingly, following our , de novo review, we find no error in the trial court’s finding that, the plaintiffs’ claims were not prescribed.

^WORKER’S COMPENSATION

The Defendants assert that the trial court erred by awarding damages to three of the sixty-one plaintiffs who were former HANO employees or statutory employees. The Defendants aver that worker’s compensation statutes provide the exclusive remedy for those plaintiffs.

The trial court stated that the Defendants never raised worker’s compensation as an affirmative defense until, the trial for the first flight of plaintiffs, , which was twenty years after litigation began. Therefore, the trial court found that the assertion of worker’s compensation as an exclusive remedy was barred as untimely.

“[T]he tort immunity provided by the [worker’s compensation] Act operates as an affirmative defense; it is not a law evaluating conditions of legality of defendant’s conduct but, rather, serves as a vehicle for asserting a substantive defense that defeats an otherwise viable claim.” Brown v. Adair, 02-2028, p. 5 (La. 4/9/03), 846 So.2d 687, 690. See also La. C.C.P. art. 1005. “[T]he employer bears the burden of proving entitlement to the immunity.” Weber v. State, 635 So.2d 188, 191 (La. 1994). Failure to timely raise such an affirmative defense may result in the waiver of said defense to avoid trial by ambush. Teasley v. Ates, 03-824, p. 5 (La.App. 3 Cir. 12/10/03), 861 So.2d 778, 781.

Nothing in the- record on appeal demonstrates that worker’s compensation was raised in an exception or pled as an affirmative defense prior to the first trial or before the current damages trial for the first flight of plaintiffs. Given that worker’s compensation as an exclusive remedy was not raised until day seven of the trial, some twenty years after the start of litigation, we find that the trial court did not err in finding the defense was untimely raised.

| ^Notwithstanding the untimeliness, the exclusive remedy of worker’s compensation fails. The Defendants claim that worker’s compensation barred an award of damages to plaintiffs: McArthur Samuels, Jr., Jacquelyn Bates, and Eddi-son Johnpire, Sr. Mr. Samuels, Jr. was employed by the Press Park Community Development However, his claims were based on his ownership of a Gordon Plaza home- and .the emotional distress he suffered as a result. Ms. Bates was a direct employee of HANO part-time after school in junior high school and high school. Yet again, however, her claims were based upon her later ownership of a Gordon Plaza home and the resulting emotional distress. As such; the. claims of Mr. Samuels, Jr. and Ms. Bates were not related to their employment. Mr.; Johnpire, Sr. worked for the Press Park Homebuyers’ Association for approximately twenty-two years. He was not a HANO employee. HANO did not present evidence,-nor proffer evidence, to establish that Mr.-Johnpire, Sr. was a statutory employee of HANO. Accordingly, worker’s compensation does not apply.

EMOTIONAL DISTRESS

Even though we found that the Defendants’ assertion that the trial court erred in its method of awarding emotion distress damages was barred due to res jv4icata, the Defendants nonetheless also contend that the plaintiffs did not meet their.burden of proving they suffered from emotional distress. The Defendants also maintain that the law regarding the required proof for emotional distress damages has changed since the initial trial on liability and for the class representatives.

“The legal standard for the recovery of negligent- infliction of emotional distress absent physical injury is that the plaintiff must show an ‘especial 117likelihood of genuine and serious mental distress, arising from the special circumstances, which serves as a guarantee that the claim is not spurious.’ ” Lester v. Exxon Mobil Corp., 12-1709, p. 8 (La.App. 4 Cir. 6/26/13), 120 So.3d 767, 774, quoting Bonnette v. Conoco, Inc., 01-2767, pp. 22-23 (La. 1/28/03), 837 So.2d 1219, 1234. “The jurisprudence, however, has .limited such recovery by requiring that the emotional distress be severe and not merely the result of the usual worry or anxiety attendant to property damage.” Johnson VI, 06-1223, p. 18, 975 So.2d at 711. “In Doerr v. Mobil Oil Corp., 2004-1789 (La.App. 4 Cir. 6/14/06), 935 So.2d 231, this Court allowed recovery of damages for emotional distress suffered by plaintiffs that was caused not by the usual worry or anxiety associated with property damage, but legitimate concern about health effects.” Id. In Doerr, plaintiffs “who suffered.no physical injury resulting from contamination of the parish water supply due to oil refinery discharge were entitled to damages, for negligent infliction of emotional distress” because they “had legitimate concerns regarding the health effects of the contamination and took actions such as drinking only bottled water or installing filtration systems and checking the odor and color of the water at each use to test for further contamination.” Id.

While none of the sixty-one plaintiffs sought professional help for their emotional distress related to owning, living, or working on property contaminated by the ASL, all of the plaintiffs, via live testimony or deposition, explained their emotional distress in dealing with the repercussions of the ASL. This included their apprehension regarding gardening, entertaining outside, and allowing their children to play outside. The plaintiffs all testified as to how long they lived or worked on the site.

The trial court’s findings were as follows:

| isThe Court finds as a matter of fact and law that the Flight 1 Plaintiffs who lived or worked directly on the ASL site (that portion of the ASL neighborhood located within'the EPA’s 1994 “Superfund” boundaries) have suffered mental and emotional distress due to the shocking realization in 1994 that their homes and businesses were located on a “Superfund Site”. These Plaintiffs began to suffer extreme stress in 1994, when the EPA first published its findings from soil testing at the ASL site, and placed the site on the National Priorities List (“NPL”). '
The Court finds that to this day, and even given "the trauma, displacement, and loss suffered to varying degrees during and as a result of Hurricane Katrina, each of the Flight 1 Plaintiffs continues to be adversely affected emotionally by their knowledge that for many years they each lived or worked every day directly on top of one of the most contaminated sites in the United States.
■ The Court, therefore, holds that their emotional distress arose from and is proportional to their years of exposures to the toxic and hazardous materials that contaminate the ASL site.
The Court finds as a matter ,of fact ■and law that the stress suffered by the Flight 1 Plaintiffs is of a type that is so unique and extraordinary in nature that it is not merely speculative, but is real and compensable. Although there is no evidence of any Plaintiff having been diagnosed with a bodily injury or disease that has been medically related to the contaminated soil, the Court finds that the actual and extensive damage occurring to the Plaintiffs’ property since 1972 has been clearly established. .. .
In 2000-2001', the EPA performed a partial remediation ■ of approximately 10% of the ASL site. The contaminants at the very surface of a portion of the ASL site were excavated and replaced with clean soil, (there was no excavation of the contaminated soil under the streets or under any homes or buildings), and a semi-permeable barrier was installed between the" clean topsoil and the contaminated soil that is just 2’ below the surface (less than 2’ in some areas due to the presence- of underground utilities, water lines, phone lines, drainage, etc.).
The Court holds that it is reasonable for each Flight 1 Plaintiffs emotional distress to be directly proportional to the length of time he or she lived or worked on the ASL site prior to the year 2001, and were thereby exposed on a daily basis to the hazardous and toxic materials that were at the surface of their properties and at a depth of 20’ in the soil. The Court further holds 113that these daily exposures to hazardous materials from 1972 through 2001 constitute an “occurrence” of a “personal injury” as those terms are defined in Louisiana. The Court also notes that, as was the case at the 2005 trial, none of the Defendants called even one witness to challenge any of the Flight 1 Plaintiffs testimony about how living on the ASL site has affected them emotionally since 1994, and continues to affect them today. Nor did the Defendants introduce any documents that effectively rebut any of the Plaintiffs’ testimony. The Court was impressed by the genuine testimony of each Flight 1 Plaintiff, who expressed in his or her own words why and how he or she is still haunted by the knowledge that he or she lived on an un-remediated “Superfund site” for years. The Court, on January 12, 2006, established a formula for calculating the damages that will fairly compensate the Class Members, including these Flight 1 Plaintiffs, in an amount that is directly proportional to their years of residence. Having watched and listened to each of the Flight 1 Plaintiffs testify live at trial, the Court is convinced that the 2006 formula is still fair and appropriate. Therefore, the Flight 1 Plaintiffs who lived or worked directly on the ASL site should be compensated for their mental and emotional distress as follows:
For 1- up to 5 years $2,000 (per year)
For 5- up to 10 years $12,500.00 (total)
For 10- up to 15 years $15,000.00 (total)
For 15- up to 20 years $20,000.00 (total)
For 20 years or more $25,000.00 (total)
The Court notes that since each Flight 1 Trial Plaintiff had the burden of proving his or her actual dates of residency, the Court reduced the award of any Plaintiff whose testimony was contradicted by the documentary evidence entered into the Record.

The trial court judge was in the best position to weigh each plaintiffs credibility. In addition, the plaintiffs testified as to whether they owned or rented property on or adjacent to the ASL and whether they just worked on the ASL. The trial court then awarded emotional damages in accordance with the methods established at the initial trial. The Louisiana Supreme Court subsequently denied writs and the | gpUnited States Supreme Court denied cert. Therefore, we do not find that the trial court erred by finding that the plaintiffs proved they suffered from emotional distress related to the ASL. Further, as stated above, the amounts awarded coincided with the methods previously established and upheld.

PROPERTY VALUE AWARDS

The Defendants contend that the trial court erred by accepting the plaintiffs’ real estate expert and by finding that the properties possessed a permanent stigma.

The plaintiffs’ expert appraiser, Kermit Williams, testified regarding his methods for valuing the properties located on or adjacent to the ASL. Mr. Williams possessed experience with properties affected by stigma or environmental problems. He stated that all of the ASL properties suffered stigma damage due to the incurable defect of being located on top of the ASL. Additionally, Mr. Williams testified that the land-use restrictions further increased that stigma for properties on the ASL. Mr. Williams stated that the properties located on the ASL suffered from a permanent stigma, while the stigma attached to adjacent properties would decrease in twenty to thirty years. Overall, he estimated an approximate 25% decrease in the Gordon Plaza property values based on the environmental stigma.

Jimmy Thorns, a 'real estate appraiser called by the Defendants, did not possess expert experience in stigma or environmental damages, but testified that the properties were valued 12.5% lower than other comparable properties.

The Defendants’ real estate analyst, consultant, and appraiser, Richard Roddewig, testified that he was an expert analyst on the effects of environmental 121 contamination and environmental stigma on property value. Mr. Roddewig relied upon the appraisals of Mr. Thorns. He explained his methodologies for comprising his devaluation figures to the trial court and calculated a range of between 10 - 15% stigma: 10% for remediated homes and 15% for non-remediated homes. Further, he assigned a 6-12% stigma impact on shell/gutted properties and 5% for properties adjácent to-the ASL. Mr. Rod-dewig stated that the impact on the properties was- temporary and that it would decrease in the future. However, he could not opine as to how long it would take for the decrease to occur.

The trial court found that the plaintiffs’ properties were only partially remediated by the EPA, and that the contaminants remain below the protective layer of soil, where there is a protective layer. The trial court further found that the land-use restrictions, the association with a “Superfund site,” and the “continuing presence of toxic and hazardous materials directly under the Plaintiffs’, homes” combined “to reduce the value of the Plaintiffs’ properties below that of comparable, but unimpaired- properties, in the New Orleans area.”

Furthermore, after considering all of the expert testimony, the trial court concluded that the Gordon Plaza homes suffered a 20% loss in the present-day value, which was “entirely due to the ongoing, ever-present contamination of 'the soil in the ASL site.” The trial court found that the 20% valuation was a reasonable compromise between the values presented by the experts.

As for the Press Park properties, the trial court averaged the appraisers’ pre-Katrina values for each property and awarded 20%. The trial court utilized the pre-Katrina valuations because HANO has prevented the Press Park townhome own-ersjjgfrom entering and rebuilding their property. The Press Park townhomes remain fenced off, blighted, and inaccessible.

The trial court held that the adjacent properties “suffered a continuing diminution of value in their properties, due to the stigma associated with their close proximity (some as close as directly across the street) -to the ASL site.” The trial court averaged the values from the appraisers and awarded 10% of the average value.

The trial court arrived at the above-discussed conclusions after weighing the experts’ testimony and conducting painstaking calculations for each plaintiff homeowner. The Defendants disagree with the method and analysis used by Mr. Williams. However, the trial court determined that the experts’ calculations were all reasonable. Accordingly, the trial court averaged the figures and awarded a percentage of damages between the experts’ percentages. As such, we do not find that the trial court committed manifest error by weighing the experts’ testimony and choosing to award damages for the diminution in property values based on a combination of the experts’ calculations.

J^HURRICANE KATRINA DAMAGES

The Defendants contend that they were “entitled to offsets for the Road Home and insurance payments received by the plaintiffs” because the payments served as a double or triple payment. This argument lacks merit.

The payments received by plaintiffs after Hurricane Katrina were not for the same damage caused by the Defendants. As stated by the trial court:

All of these post-Katrina payments were for structural damage caused above ground by wind and/or flooding. None of these payments were designated, designed, or stated to be for anything other than the wind and/or flood damage caused specifically and exclusively by Hurricane Katrina.

None of the payments were duplicative. Therefore, the Defendants’ assignment of error has no merit.

DECREE

For the above-mentioned reasons, we find that the Defendants’ assignments of error regarding the formulaic calculation of emotional distress damages,, comparative fault, and solidary liability are barred by the doctrine of res judicata. The Plaintiffs’ claims were not prescribed because the testimony demonstrates that they discovered the contamination within one year of filing suit. The exclusive remedy of worker’s compensation was untimely raised and is inapplicable. The trial court did not err by finding that the plaintiffs proved emotional distress or abused its discretion in calculating the amount of damages. Further, the trial court did not commit manifest error by calculating damages for property diminution in value based on a combination of the experts’ testimony. The trial court was also not clearly wrong for using the pre-Katrina values for determining the damage to the Press Park townhomes. Lastly, the Defendants were not entitled to an offset for Road Home and insurance payments received by the Plaintiffs after Hurricane | ^Katrina because the payments were not duplicative. Accordingly, the judgment of the trial court is affirmed.

AFFIRMED

      . Additional background on this litigation is contained in Johnson v. Orleans Par. Sch. Bd., 00-0825, 00-0826, 00-0827, 00-0828 (La. App. 4 Cir. 6/27/01), 790 So.2d 734 ("Johnson I"); Johnson v. Orleans Par. Sch. Bd., 03-0828, 03-1573 (La. App. 4 Cir. 11/3/04), 890 So.2d 579 ("Johnson II"); Johnson v. Orleans Par. Sch. Bd., 04-1352 (La.App. 4 Cir. 2/16/05), 897 So.2d 812 ("Johnson III"); Johnson v. Orleans Par. Sch. Bd., 05-0796 (La. App. 4 Cir. 3/22/06), 929 So.2d 761 ("Johnson IV”); and Johnson v. Orleans Par. Sch. Bd., 05-1488 (La. App. 4 Cir. 8/9/06), 938 So.2d 219 (“Johnson V").

      . National Union Fire Insurance Company and United States Fire Insurance Company, two of HANO's insurers, also filed appeals that were dismissed upon their own motion.

      . This Court also notes that the method for awarding emotional distress damages was affirmed as amended by this Court in Johnson VI, and writs were denied by the Louisiana Supreme Court.

      . The awards included in the trial court’s January 12, 2006, judgment were reduced by 50% by this Court in Johnson VI, 06-1223, 975 So.2d 698. The amounts awarded are the amounts as amended by this Court.

      . The Defendants contend that the trial court erred by utilizing the pre-Katrina valuations to calculate the award to Press Park town-home owners. However, HANO has prevented the owners from rebuilding or returning to their properties. As the trial court noted:
      The present blighted condition of the Press Park town homes is through no fault of the Flight 1 Press Park Plaintiffs ... but is due solely to the actions of HANO. Furthermore, the Court notes that HANO did not call any witnesses at trial, or offer any documents into evidence, to explain its ' post-Katrina actions.
      Therefore, the Court will not penalize the Flight 1 .Press Park town home owners by using the present date as the "effective date” for the appraised values of the Press Park town homes. Instead, the Court will use the pre-Katrina, unimpaired values of thé Press Park town homes upon which to base the Court's decision about the stigma damages incurred for each of these properties.
      We agree with the trial court. The Defendants should not benefit from their own actions following the destruction of Hurricane Katrina. Thus, the trial court did not commit manifest error by using the pre-Katrina valuations for the Press Park townhomes.


author: Judge Joy Cossich Lobrano

text:
    NEW JAX CONDOMINIUMS ASSOCIATION, INC. v. VANDERBILT NEW ORLEANS, LLC, and The Penthouse at Jax, LLC
    NO. 2016-CA-0643
    Court of Appeal of Louisiana, Fourth Circuit.
    April 26, 2017

      Ryan M. McCabe, Charles L. Stern, Jr., Elise M. Henry, 201 St, Charles Avenue, Suite 3201, New Orleans, LA 70170, COUNSEL FOR PLAINTIFF/APPEL-LEE
    Vincent James Booth, BOOTH & BOOTH, A PLC, 138 North Cortez Street, New Orleans, LA 70119, COUNSEL FOR DEFENDANTS/APPELLANTS
    (Court composed of Judge Roland L. Belsome, Judge Joy Cossich Lobrano, Judge Regina Bartholomew-Woods)
   Judge Joy Cossich Lobrano

11 This appeal arises from a dispute between condominium unit owners and their condominium association regarding the operation of short-term rentals. Vanderbilt New Orleans, LLC ("Vanderbilt”), The Penthouse at Jax, LLC (“PAJ”), and New Jax, LLC (“New Jax”) appeal the district court’s November 10, 2015 judgment granting New Jax Condominiums Association, Inc. (“the Association”) a permanent injunction against PAJ, Vanderbilt, and New Jax,- (together, “the Weber entities”) and adjudicating the Weber entities liable in solido for $250,991.24 in damages. Finding that the district court did not manifestly err,, we affirm the portion of the judgment issuing a permanent injunction against .the Weber entities. Finding that the district court erred in adjudicating New Jax liable in solido for damages.with PAJ and Vanderbilt,- we reverse and vacate the portion of the judgment awarding monetary damages and remand the case for a determination of the amount of damages owed by PAJ and Vanderbilt.

12Earl Weber Jr. (‘Weber”) is the sole member of PAJ, and makes all operational decisions for PAJ. PAJ owns two units in the condominium complex managed by the Association, one of which (the “Queen Suite”) it uses for short-term rentals. Weber is also a member of Vanderbilt, and makes the majority of decisions regarding Vanderbilt’s operations. Vanderbilt conducts no business other than owning a condominium in the Association’s complex (“Unit-B”)- and engaging in short-term rentals through Unit B. Weber is also one of the two members of New Jax, and, at all times relevant to the issues raised in this appeal, was the individual directing the operations of New Jax. New Jax was formed to act as developer of the condominium complex, and went dormant for a period after the complex was completed.

In 2009, PAJ and Vanderbilt began leasing the Queen Suite and Unit B on a short-term rental basis. Four years later, in January of 2014, a new president, A.J. Roy (“Roy”) was elected to lead the Association’s board > of directors (the “Board”). During his tenure, Roy received, numerous complaints regarding the operation -of short-term rentals within the condominium complex. These complaints included that short-term tenants had harassed unit owners, had trespassed into unit owners’ homes, and had provoked violence that prevented-unit, owners from being able to use and enjoy their property. As a result, the Board met with Weber. However, the short-term rentals continued.

After the meeting failed to produce favorable results, on June 30, 2014, the Board unanimously recognized that short-term rentals were prohibited by law. The Board then circulated a letter to all owners within the complex, stating that short Uterm rentals were prohibited by law and not tolerated by the complex. The letter specifically stated that “all Unit Owners must stop using their units for rentals for periods of less than 60 days” and that “all Unit Owners must stop using their Units for rentals for periods of less than 60 days by September 16, 2014.” Vanderbilt and PAJ admit that they ignored the letter and continued with short term rentals.

Another notice was sent. Throughout this time, the Board continued to receive complaints with respect to issues concerning short-term tenants. As a result, the Board unanimously approved an amendment to the bylaws (“Bylaw 5.19”) specifically prohibiting the operation of short term rentals within the complex, and set it for a vote by the unit owners. Before Bylaw 5.19 was voted upon by the unit owners, Weber had Vanderbilt lease the Queen Suite and Unit B to his previously dormant company, New Jax, for the purpose of continuing the short-term rentals. Weber signed the lease for both lessor Vanderbilt and lessee New Jax. The lease became effective January 1, 2015,

On January 15, 2015, a unit owner meeting took place. Before a vote was held with respect to Bylaw 5.19, an annual election of the Association’s three-member board of directors (the “Board”) was held. Mr.' Kenneth Lobell (“Lobell”) Land Mr. Gregory Lala (“Lala”) were elected as new members of the Board. Roy was reelected . to the Board, and remained president. Initially, Bylaw 5.19 did not pass. There was some confusion regarding the vote, as Lo-bell stated that he filled out his ballot incorrectly. After alerting the room that he incorrectly filled out his ballot, Lobell 'was allowed to clarify his vote, which resulted in the new bylaw passing. The final result was a 75.5810% majority in favor of Bylaw 5.19, which reads:

It is strictly prohibited that any' Unit Owner or tenant (pursuant to a duly authorized and approved lease) use his/ hers/its Unit for any overnight rental, bed and bréakfast, guest house, hotel, or transient purpose in which any party received payment or anything of value for said use. The Unit Owner and tenant/occupant breaching this provision, after notice and a hearing before the Board, shall be liable jointly, severally, and in solido to the Association for all amounts received or the value received, costs, expenses, and legal fees, all of which shall be subject to the imposition of a lien as provided in the Declaration and By-Laws and the Act. In addition to the above, the Association shall be entitled to injunctive relief against any violating party.

After the passage of Bylaw 5.19, it came to the Board’s attention that the Weber entities were still operating short-term rentals. On March 9, 2015, the Board issued a written notice to PAJ and .Vanderbilt ordering them to cease their operation of short-term, rentals, and . scheduled a hearing for March 27, 2015, to discuss violations of Bylaw 5.19. ‘During the hearing, Vanderbilt admitted that it had used its property for short-term rentals, but argued that it had not violated any bylaws. Instead, Vanderbilt asserted that prior to January 1, 2015, it had complied With the notice requirement for short-term leases, pursuant to Article 5.18. | ^Furthermore, Vanderbilt maintained' that its long-term léase agreement with New Jax was not subject to the bylaws and/or was protected by the “developer exclusion” in Article 5.18. However, despite .these arguments, the Board unanimously determined that PAJ and Vanderbilt had violated and were continuing to violate Bylaw 5.19, and therefore, ordered PAJ and Vanderbilt to cease and desist from using their units for short-term rentals. Despite this, New Jax continued to use its leased property for short-term rentals.

Because of these continued actions, the Association filed a. lawsuit seeking an injunction and damages against PAJ and Vanderbilt. A preliminary injunction was issued on June 25,2015, enjoining PAJ and Vanderbilt' from continuing their short-term rentals. Importantly, the preliminary injunction also restricted “those persons in active concert or participation with them” from operating the short term rentals.. The Weber entities ignored the injunction, and New Jax continued to use its leased property for short-term rentals.

New Jax intervened in the lawsuit on July 21, 2015. On August 12, 2015, the Weber entities filed an Exception of Prescription, alleging that the lawsuit was untimely because the Association had been aware of Vanderbilt’s short-term rental actions since 2009. The district court denied the exception, and the matter went forward to trial on November 9 and 10, 2016, On November 10, 2016, the district court rendered judgment. The district court found that the Weber entities were in violation of Bylaw 5.19, and ordered a permanent injunction barring the Weber entities from participating in any short-term rental activity. The district court also | r,found that damages for the Weber entities’ violation of Bylaw 5.19 amounted to $250,991.24, equal to the amount of revenue that the Weber entities earned from the operation of short-term rentals dating from January 15, 2015 to September 14, 2015. The district court adjudicated the Weber entities liable in solido for those damages.

This appeal timely follows.

Errors Assigned by PAJ and Vanderbilt

I. Conflict of Interest

First, PAJ and Vanderbilt allege that the district court erred by failing to make a factual finding that members of the Board had conflicts of interest that made the Board’s actions improper. PAJ and Vanderbilt argue that because Lobell is involved in separate litigation against Weber, and Lala has stated that Weber made misrepresentations to him when selling him his condominium, Lobell and Lala acted in bad faith by participating in the enactment and enforcement of Bylaw 5.19.

In support of this argument, PAJ and Vanderbilt cite only La. R.S. 12:1-830(A), which reads, “[ejach member of the board of directors, when discharging the duties of a director, shall act in good faith and in a manner the director reasonably believes is in the best interests of the corporation.” PAJ and Vanderbilt further argue that “[t]he evidence in the record shows clearly that both Kenneth Lobell and another current member of the Association’s Board of Directors, Gregory Lala, had 17conflicts of interest regarding Earl Weber and his short-term , rental activity, and therefore acted in bad faith....”

Regarding conflicts of interest, La. R.S. 12:1-861 reads:

A. A transaction effected or proposed to be effected by the corporation, or by an entity controlled by the corporation, may not be the subject of any form of relief, or give rise to an award of damages or other sanctions against a director of the corporation, in a proceeding by a shareholder or by or in the right of the corporation, on the ground that the director has an interest respecting the transaction, if it is not a director’s conflicting interest transaction.
B. A director’s conflicting interest transaction may not be the subject of equitable relief, or give rise to an award of damages or other sanctions against a director of the corporation, in a proceeding by a shareholder or by or in the right of the corporation, on the ground that the director has an interest respecting the transaction, if any of the following conditions are satisfied:
(1) Directors’ action respecting the transaction was taken in compliance with R.S. 12:1-862 at any time.
(2) Shareholders’ action respecting the transaction was taken in compliance with R.S. 12: 1-863 at any time.
(3) The transaction, judged according to the circumstances at the relevant time, is established to have been fair to the corporation.

A director’s conflicting interest transaction, defined by La. R.S. 12:1-860(2), is:

ls(a) A transaction effected or proposed to be effected by the corporation, or by an entity controlled by the corporation, to which, at the relevant time, the director is a party.
(b) A transaction effected or proposed to be effected by the corporation, or by an entity controlled by the corporation, respecting which, at the relevant time, the director had knowledge and a material financial interest known to the director.
c) A transaction effected or proposed to be effected by the corporation, or by an entity controlled by the corporation, respecting which, at the relevant time, the director knew that a related person was a party or had a material financial interest.

Further, regarding fairness to the corporation, La. R.S. 12:1-860(3) reads:

“Fair to the corporation” means, for purposes of R.S. 12:1-861(B)(3), that the transaction as a whole was beneficial to the corporation, taking into appropriate account whether it was fair in terms of the director’s dealings with the corporation, and comparable to what might have been obtainable in an arm’s length transaction, given the consideration paid or received by the corporation.

(quotation marks in original).

A review of the record shows that the Association’s efforts to end the Weber entities’ short-term rental’s began, at the latest, on June 30, 2014, upon sending of a letter to the unit owners demanding an end to all short-term rentals at the condominium complex. Lobell and Lala were not members of the Board at that time, or when the follow-up letter was sent to the Weber entities on December 9, 2014, or when Bylaw 5.19 was presented to the unit owners for a vote. In fact, Lobell and Lala were only elected to the Board immediately prior to the vote, which was not a Board action, but a vote of all unit owners. All relevant Board actions either happened before the allegedly conflicted Board members were elected or after Bylaw 5.19 passed by 75.5810% of the vote of all unit owners. Because the allegedly conflicted Board members participated in none of the decisions leading to the enactment of Bylaw 5.19, no director’s conflict of interest was present in the enactment of Bylaw 5.19. Further, all enforcement proceedings |9after the enactment were a result of a majority mandate given by the,unit,owners—rendering them fair to the corporation judged by the circumstances at the time. See La. R.S. 12:1-860(3). Lala and Lobell acted in conformity with the prior Board and the wishes of all unit owners, and the record lacks evidence of bad faith.

This assignment of error lacks merit.

II. Invalid Adoption of Bylaw 5.19 and Exception of No Cause of Action

Next, PAJ and Vanderbilt allege that because Lobell was allbwed to change his vote, Bylaw 5.19 was never validly adopted. At trial, Lobell testified that he incorrectly filled out the ballot because he was not wearing his glasses, and when he informed everyone at the meeting of this, he was allowed to change his vote. The Association’s bylaws regarding voting procedure at meetings of the unit owners state, in relevant part:

“Unless otherwise expressly provided herein, any action may be taken at any meeting of the voting members at which a quorum is present upon the affirmative vote of the voting members having a majority of the total .present at such meeting.”

The record establishes that no one objected to Lobell being allowed to change his vote. Further, as the Association points out, PAJ and Vanderbilt cite no law or bylaw supporting the proposition that a condominium owner cannot change his vote during the meeting in which the vote was cast when no other unit owner objects to him doing so. The action in question, the passage of Bylaw 5.19, was taken by a majority of the unit owners at a meeting where a quorum was present.

This assignment of error lacks merit.

PAJ and Vanderbilt go on to allege that even if the vote itself was proper, Bylaw 5.19 was never properly adopted because it is a building restriction and the requirements for adoption of building restrictions were not followed. PAJ and 11flVanderbilt also raised this assignment of error as an exception of no cause of action. In their exception of no cause of action, PAJ and Vanderbilt allege that because Bylaw 5.19 was not adopted as required for a building restriction, the Association has failed to state a cause of action.

“Building restrictions are charges imposed by the owner of an' immovable in pursuance of a general plan governing building standards, specified uses, and improvements. The plan must be feasible and capable of being preserved.” La. C.C. art. 775. A building restriction must be adopted by 100% of the owners of the properties it will apply to. La. C.C. art. 776 (stating “... Building restrictions may be established only by juridical act executed by the owner of an immovable or by all the owners of the affected immovables”). A building restriction is a predial servitude, and governed by the law of predial servi-tudes to the extent that the nature of building restrictions is compatible with such laws. .La. C.C. art. 777.

However, the provisions of the Louisiana Condominium Act (La. R.S. 9:1121.101 et seq.) supersede the law of building restrictions in. the event of any conflict. La. C.C. art. 783. A condominium association has the-ability to govern “[t]he administration and operation of the condominium” through bylaws. La. R.S. 9:1123.106. Specifically, the Louisiana Condominium Act provides that bylaws Ingovern the “use of the condominium property.” Id. at (C)(1). Because the question of whether something is a building restriction or a condominium bylaw is a question of statutory interpretation, it is a question of law. See Louisiana Bureau of Credit Control, Inc. v. Landeche, 2008-1099, p. 2 (La.App. 3 Cir. 3/4/09), 6 So.3d 935, 937 (treating the question of whether an assessment was a building restriction or a personal obligation as a question of law); Hijazi v. Dentler, 2013-268, p. 5 (La.App. 3 Cir. 11/6/13), 125 So.3d 1280, 1284 (acknowledging, when analyzing the validity of a building restriction, that questions of statutory interpretation are questions of law). The standard of review when an appellate court reviews a question of law is whether the district court’s interpretive decision is legally correct. 727 Toulouse, L.L.C. v. Bistro at the Maison De Ville, L.L.C., 2012-1014, p. 7 (La.App. 4 Cir. 8/21/13), 122 So.3d 1152, 1157.

An exception of no cause of action should be granted, only when it appears beyond doubt that the plaintiff can prove no set of facts in support of any claim that would entitle him to relief. Industrial Cos., Inc. v. Durbin, 2002-0665, p. 7 (La. 1/28/03), 837 So.2d 1207, 1213. Because exceptions of no cause of action present legal questions, they are reviewed using the de novo standard of review. O’Dwyer v. Edwards, 2008-1492, p. 3 (La. App. 4 Cir. 6/10/09), 15 So.3d 308, 310 (internal citations omitted). The exception filed by PAJ and Vanderbilt assumes that Bylaw 5.19 is a building restriction and not a condominium bylaw. The limited function of an exception of no cause of action is to determine whether the law provides. a remedy to a plaintiff against these particular defendants. Hershberger v. 12kLKM Chinese, L.L.C., 2014-1079, p. 3 (La.App. 4 Cir. 5/20/15), 172 So.3d 140, 143. “The pertinent question is Whether, when viewed in the light most favorable to the plaintiff and with every doubt resolved in his behalf, the petition states any valid cause of action for relief.” Phillips v. Gibbs, 2010-0175, p. 3 (La.App. 4 Cir. 5/21/10), 39 So.3d 795, 797 (citations omitted). Viewing the petition in the light most favorable to the Association, and resolving all doubt in favor of it, the petition states a valid cause of action for violations of a condominium bylaw. Whether that regulation is in fact a condominium bylaw and not-a building restriction is outside of the scope of the limited purpose of an exception of no cause of action. Accordingly, we deny the exception and reach the merits of this assignment of error.

Bylaw 5.19 prohibits unit owners from using their property for short-term rentals. Use restrictions are expressly permitted in condominium declarations, and rules “deemed necessary or desirable” for administration and operation of condominiums are permitted in condominium bylaws. La. R.S. 9:1123.106. The record reflects that Bylaw 5.19 is a use restriction that was deemed “necessary or desirable” for the administration of the condominium property by a 75.5810% vote of the unit owners. In contrast, under the law • of building restrictions, owners must unanimously enact a use restriction. La. C.C. art. 776. Given this conflict, the 11sLouisiana Condominium Act supersedes the law of building restrictions in this case. See La. C.C. art. 783.

According to the record, in the Association, bylaws must be adopted by a two-thirds majority. Because Bylaw 5.19 is a bylaw “deemed necessary or desirable” for administration and operation of condominiums rather than a building restriction, and the record establishes that it was passed by more than a two-thirds majority, this assignment of error lacks merit.

III. Arbitration

Next, PAJ and Vanderbilt allege that the district court erred by failing to stay or dismiss the proceedings based on an arbitration clause in the bylaws. The arbitration clause at issue (“Bylaw 6.02”) reads:

In the event there is any dispute among the Unit Owners or among the members of the Board which is not reconciled by a vote pursuant to these By-Laws, such dispute shall be submitted to arbitration under the Louisiana Arbitration Act (LA R.S. 9:4201 et seq.).

A district court is required to stay proceedings and refer the matter to arbitration when the issue raised in litigation is arbitrable under the arbitration agreement. Int’l River Ctr. V. Johns-Manville Sales Corp., 2002-3060, pp. 2-3 (La. 12/3/03), 861 So.2d 139, 141. Arbitration is a contractual matter, and courts cannot compel parties to submit disputes to arbitration that they have not agreed to submit. Lakeland Anesthesia, Inc. v. United Healthcare of La., Inc., 2003-1662, p. 7 (La.App. 4 Cir. 3/17/04), 871 So.2d 380, 386-87 (citations omitted). Appellate courts review denials of referrals for arbitration de novo, and review factual findings under the manifest error standard. Id., 2003-1662 at p. 10, 871 So.2d at 388.

In the case sub judice, Bylaw 6.02 is not susceptible of an interpretation that it could cover the dispute at issue. The only dispute presented is one between the Board and two unit owners. “When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent.” La. C.C. art. 2046. The plain meaning of Bylaw 6.02 is that it applies to disputes among members of the Board or disputes among unit owners rather than disputes between the Board itself and the unit owners it governs. This assignment of error lacks merit.

Errors Assigned by the Weber Entities

I. Judgment in solido against the Weber entities

All three Weber entities argue that the district court erred by rendering judgment in solido against them. “A judgment is the determination of the rights of the parties in an action and may award any relief to which the parties are entitled.” La. C.C.P. art. 1841. A plaintiff cannot recover judgment against a defendant the plaintiff has never sued. Rowan v. Burke Homes, Inc., 2013-10, p. 2 (La.App. 3 Cir. 5/1/13), 157 So.3d 640, 641 (citations omitted). The issuance of permanent injunctions is reviewed under the manifest error standard. Yokum v. Funky, LLC, 2015-1353, p. 16 (La.App. 4 Cir. 9/28/16), 202 So.3d 1065, 1075 15(citations omitted). A district court’s award of damages is reviewed under the abuse of discretion standard. Sabillon v. Max Specialty Ins. Co., 2013-0513, p. 6 (La.App. 4 Cir. 3/12/14), 137 So.3d 707, 711.

New Jax intervened in this suit, but the Association never amended its petition to name New Jax as a defendant. Interventions are incidental actions governed by La. C.C.P. art. 1091. Willis v. City of New Orleans, 2014-0098, p. 4 (La. App. 4 Cir. 6/18/2014), 143 So.3d 1232, 1235. Regarding intervenors, the Louisiana Practice Series on Louisiana Civil Pretrial Procedure reads as follows:

An intervenor has three options in filing an intervention: join with the plaintiff in demanding similar relief; join with the defendant in resisting the plaintiffs demands; or oppose both. Note, however, that no matter which party the inter-venor aligns with, the intervenor does not thereby become a plaintiff or a defendant.

La. Prac. Civ. Pretrial § 4:82 (2016-2017 ed.) (bullet points omitted) (emphasis added).

As quoted supra, Bylaw 5.19 provides that “[t]he Unit Owner and tenant/occupant breaching this provision... shall be liable jointly, severally, and in solido to the Association for all amounts received or the value received, costs, expenses and legal fees....” Granting the permanent injunction against New Jax was proper under La. C.C.P. art. 3605, which expands the applicability of a [^district court’s judgment granting a preliminary injunction beyond the defendant judgment is rendered against. Thus, the district court did not manifestly err in issuing a permanent injunction against the Weber entities.

However, Bylaw 5.19 does not vest the district court with the ability to render á monetary judgment against non-defendant intervenor New Jax. In the case sub judi-ce, the Association failed to properly name New Jax as a defendant so that the district court could include them in the judgment, As a result, we find that the district court abused its discretion by awarding damages in solido against the Weber entities. We vacate the portion of the district court’s judgment awarding the Association $250,991.24 in damages against the Weber entities in solido, and remand the case for a hearing to determine the amount of damages defendants PAJ and Vanderbilt owe the Association.

Decree

For these reasons, we affirm the portion of the district court’s November 10, 2015 judgment granting the.Association a permanent injunction against the Weber entities. We reverse the portion of the judgment holding New Jax liable in solido with PAJ and Vanderbilt, vacate the district court’s award of damages, and remand the case for a determination of damages owed by PAJ and Vanderbilt.

AFFIRMED IN PART; REVERSED IN PART; VACATED IN PART; REMANDED

      . The judgment notes that it was rendered following the two day trial, on November 10, 2015, but it was read and signed on February 11,2016.

      . The Appellee herein is the association of condominium unit owners which governs and manages the condominium project, which itself is governed by a Board of Directors, pursuant to La. R.S. 9:1121.101 et seq. (the Louisiana Condominium Act).

      .The Board’s letter cited to the following ordinances: New Orleans Code of Ordinances § 54-491.1(b) (making it "unlawful for any person to knowingly offer to rent for monetary compensation for a period of less, than 30 days or, in the case of premises located in the Vieux Garré District, 60 days, any living accommodations ... ”); and New Orleans Comprehensive Zoning Ordinance, at § 8.6.3 (providing, in pertinent part, that "timeshare buildings, transient vacation rentals, bed and breakfast facilities, [and] guest houses” are prohibited uses in the Vieux Carré Service District, where the New Jax Condominiums building is located).

      . Mr. Weber testified at trial that he leased the property "because he saw the writing on the wall that there was going to be some issues with the rentals.” It should be noted that at the time of the lease, PAJ remained the owner of the Queen Suite, and Vanderbilt remained the owner of Unit B. The lease is only between Vanderbilt and New Jax despite the fact that it covers both units.

      . Lobell is the other member of New Jax, along with. Weber. However, the record reflects that due to an apparent change in that business relationship that gave rise to litigation, at all times relevant to this appeal, Weber made all decisions regarding the actions of New Jax.

      . Because Lobell controls a significant amount of the vote due to the square footage of his units, Bylaw 5.19 passed once his vote was changed.

      . Bylaw Article 5.18 states that “a lease for a period of less than six (6) months shall require the Unit Owner to make Such request, in writing, to the Board setting forth the names of the sub-lessee, type of instrument to be used and supply all information as may be required by the Association ... The foregoing regulation shall not apply to the Developer, or any person, firm or corporation as provided in the Declaration.”

      . The district court also found Vanderbilt in contempt of court for continuing to operate short term rentals after the issuance of the preliminary injunction.

      . According to Lala, Weber informed him that there would be no short-term rentals in the property when he bought his condominium. Lala has not, according to the record before this Court at the time of the writing of this opinion, filed a lawsuit or otherwise sought damages against Weber for this alleged fraud.

      . On January 1, 2015, Louisiana adopted the Louisiana Business Corporation Act', which replaces the former Louisiana Business Corporation Law. 7 La. Civ. L. Treatise, Business Organizations § 22.01. Because Lala and Lo-bell were not elected to the Board until January 15, 2015, their conduct as directors is judged by the new Louisiana Business Corporation Act.

      . La. R.S 12:1-861 Comment (a) reads, in relevant part:

        .. .The current approach differs sharply from that taken.. .under prior Louisiana law. Under the earlier approach, compliance with the statutory rules concerning what were then called self-dealing transactions did not wholly protect a transaction from a challenge based on the conflicting interest, it merely prevented application of the early corporation law rule that a self-dealing transaction was automatically voidable by the corporation without regard to the fairness of the transaction. See former R.S. 12:84.

      . At the district court, on October 29, 2015, the Weber entities filed an exception of no cause of action asserting that Bylaw 5.19 was invalid because it had not been approved by 100% of the affected owners. An order was issued on October 30, 2015, setting the exception- for a hearing on November 9, 2015, which was the.same day as the trial on the permanent injunction. On November 9, 2015, the district court ruled that the exception was denied as moot. Although the denial of the exception was not a final judgment, "[i]t is well-settled that although an interlocutory judgment may not itself ,be immediately ap-pealable, it is nevertheless subject to review by an appellate court when a judgment is rendered in the case which is Appealable.” Favrot v. Favrot, 2010-0986, p. 2 (La.App. 4 Cir. 2/9/11), 68 So.3d 1099, 1102, n. 1. The proper procedure to seek review of an interlocutory judgment under the appeal of a final judgment is to include it in the assignments of error. See Lawson v. Straus, 98-2096, p. 4 (La.App. 4 Cir. 12/8/99), 750 So.2d 234, 238. Thus, the exception is properly before this Court, and we consider its merits infra.

      . Cf. Flippo v. Mann, 50, 269, p. 9 (La. App. 2 Cir. 1/13/16), 185 So.3d 856, 862 (reviewing a district court’s factual finding that certain conduct violated a building restriction under the manifest error standard of review).

      . Throughout their brief, PAJ and Vanderbilt imply that a bylaw must be an amendment to an existing building restriction. This is not the only purpose for which bylaws exist. See La. R.S. 9:1123.106 (stating that the “administration and operation of the condominium shall be governed by the bylaws”); Harris v. Fed. Fibre Mills Condo. Ass'n, Inc., 2002-1715, p. 6 (La.App. 4 Cir. 3/19/03), 843 So.2d 457, 462 (acknowledging that bylaws may provide for the administration of a condominium complex).

      . See La. R.S. 9:1122.105.

      . PAJ and Vanderbilt also allege that the Association’s claims were prescribed under La. C.C. art. 781, which reads:
      No action for injunction or for damages on account of the violation of a building restriction may be brought after two years from the commencement of a noticeable violation, After the lapse of this period, the immovable on which the violation occurred is freed of the restriction that has been violated,
      Because we find that Bylaw 5.19 is not a building restriction, we pretermit this assignment of error.

      . PAJ and Vanderbilt also argued that an award of monetary damages was improper because they believed that only the permanent injunction was set for trial. The record does not evidence that the trial on the Association’s claims for permanent injunction and damages was ever bifurcated by the district court. Further, because we remand this case for a determination of monetary damages owed by PAJ and Vanderbilt, we pretermit this assignment of error.

      . New Jax, separately from the other Weber entities, also alleges that the district court erred by failing to find that “developer’s exclusion," included in the Association’s bylaws, applies to New Jax. Because we reverse and vacate the portion of the judgment awarding damages against New Jax on other grounds, we pretermit this assignment of error.

      . La. C.C.P. art. 3605 reads:
      An order granting either a preliminary or a final injunction or a temporary restraining order shall describe in reasonable detail, and not by mere reference to the petition or other documents, the act or acts sought to be restrained. The order shall be effective against the parties restrained, their officers, agents, employees, and counsel, and those persons in active concert or participation with them, from the time they receive actual knowledge of the order by personal service or otherwise.
      (emphasis added).

      ; It should be noted that under La. C.C.P. art. 643, "one or more solidary obligors may be sued to enforce a solidary obligation, without the necessity of joining all others in the action.” The issue in the-case sub judice is not whether the Association properly sued to enforce the obligation, but whether the judgment itself was rendered against the correct parties. This opinion does not reflect the validity of Bylaw 5.19’s solidary liability provision, and should not be interpreted as altering the ability of PAJ and Vanderbilt to seek contribution against their fellow solidary obligor New Jax should a monetary damages judgment ultimately be rendered against them. See La. C.C.P. 1805.