author: JAMES F. MCEAY III, CHIEF JUDGE JENKINS, J.,

text:
    GARDNER REALTORS, LLC v. Dr. Bruce ITELD, et al
    NO. 2016-CA-0415
    Court of Appeal of Louisiana, Fourth Circuit.
    MARCH 22, 2017

      Jack A. Ricci, Michael S. Ricci, Jonathan L. Schultis, RICCI PARTNERS, LLC, 101 W. Robert E. Lee Blvd., Suite 400, New Orleans, Louisiana 70124, COUNSEL FOR PLAINTIFF/APPELLEE
    Lanny R. Zatzkis, LAW OFFICES OF LANNY R. ZATKIS, LLC, 1511 Robert Street, New Orleans, Louisiana 70115, COUNSEL FOR DEFENDANT/APPELLANT
    (Court composed of Chief Judge James F. McKay III, Judge Dennis R. Bagneris, Sr., Judge Sandra Cabrina Jenkins)
   JAMES F. MCEAY III, CHIEF JUDGE

11 This case involves an alleged breach of contract case between the owners of an immovable piece of property and their real estate agent.

FACTS AND PROCEDURAL HISTORY

Following initial contacts with real estate agents Eleanor Farnsworth and Lauren McCulloch, on December 11, 2009, Dr. Bruce Iteld and his wife, Sandy Iteld, entered into a marketing agreement with Gardner Realtors, LLC (Gardner) to market and sell their home located at 1516 Robert Street in New Orleans. The property was initially listed for sale at a price of three million three hundred fifty thousand dollars ($3,350,000.00). The home was over eight thousand (8,000) square feet and had many amenities, including a large generator, a wine cellar, a gymnasium, a saltwater pool, three home theatres, an elevator and an eight hundred (800) square foot guest house.

In December of 2009, Ms. Farnsworth placed a Gardner advertising sign in front of the subject property; this sign remained in front of the home for approximately two and a half years. Ms. Farns-worth and Ms. McCulloch alsoU advertised the subject property on the multiple listing service (MLS) as well as via a number of websites (Gardner’s website, eleanorfarns-worth.com, and luxuryrealestate.com) and publications (StCharles Avenue Magazine, The Times-Picayune, and Preservation Resource). Ms. Farnsworth, with the approval of Mrs. Iteld, had created a professionally-made brochure which included col- or photographs of the property. Soon after the property was initially listed with them, Gardner set up a large catered open house and invited a number of real estate brokers.

On December 17, 2010, Ms. McCulloch sent an email on Ms. Farnsworth’s email account to Mrs. Iteld seeking to extend the marketing agreement for another six months. After consulting with her husband, Mrs. Iteld agreed to the extension by replying “OK” to the email later that day. During this first extension, on April 26, 2011, Ms. Farnsworth received an offer of two million nine hundred thousand dollars ($2,900,000.00) to purchase the subject property from Frederic Larson, a real estate agent with Keller Williams, on behalf of one of his clients. However, the offer was rejected. Additionally, on April 28, 2011, the Itelds required that any potential buyers have a letter of pre-qualification before any viewing of the premises.

On June 24, 2011, Ms. Farnsworth sent an email to Mrs. Iteld seeking a second six month extension of the marketing agreement. After consulting with her husband, Mrs. Iteld agreed by emailing back “OK. Sandy” later that day. On | sOctober 31, 2011, Ms. Farnsworth received a “Letter of Intent to Purchase,” which the Itelds rejected.

On January 9, 2012, Ms. McCulloch again emailed Mrs. Iteld seeking a third six month extension. Mrs. Iteld once again, with the consent of her husband, agreed to a six month extension. On March 1, 2012, Gardner received a pre-qualification letter from Eric Gordon, a professional basketball player with the then New Orleans Hornets. Gardner showed the property to Mr. Gordon, but he did not make an offer. Hollywood actor Leonardo DiCaprio also viewed the property on three occasions in 2012.

On June 20, 2012, Linda Phoenix, a real estate agent for 'then New Orleans Saints player Jabari Greer and his wife Katrina Greer, contacted Ms. Farnsworth regarding the Greers’ interest in the property. Ms. Phoenix provided Gardner with a letter from UBS Financial Services, Inc., which showed the Greers’ financial capability to purchase the property. After viewing the property, the Greers made an offer of two million one hundred thousand dollars ($2,100,000.00) on June 5, 2012. Dr. Iteld and Mrs. Iteld both signed a counteroffer to the Greers, offering to sell the subject property to the Greers for three million fifty thousand dollars ($3,050,000.00). On June 7, 2012, the Greers, through their agent Ms. Phoenix, executed an “Amendment to Agreement to Purchase or Sell” offering to purchase the subject property for two million four hundred thousand dollars ($2,400,000.00) in all cash. This offer was rejected by the Itelds.

|4Mrs. Iteld informed Gardner that the Itelds were seeking to refinance the subject property in 2012 and needed for the property to be removed from the MLS but requested that Gardner continue to market the property during the refinancing period. Temporarily removing a property from the MLS in order to effectuate a refinancing is common process. On June 28, 2012, Ms. McCulloch sent an email to the Itelds stating the following: “Dear Sandy; Please find attached the cancellation of the marketing agreement for 1516 Robert Street. Please sign and return so we can process it. Let me know when the refinancing has been completed so that we can enter it back into the system.” Thereafter, on June 28, 2012, both of the Itelds and Ms. Farns-worth, on behalf of Gardner, executed the cancellation of marketing agreement. In pertinent part, the marketing agreement stated as follows:

It is hereby agreed that the expiration of the above referenced Marketing Agreement be changed from 7/29/2012 to 6/28/2012 in consideration of the early termination... In addition, any sale of the property negotiated within 6 months after the amended termination date to any party to whom said property was submitted during the term of the Marketing Agreement will be subject to a commission of 6/4% or $N/A. It is further agreed that if this property is offered for sale at any time within six (6) months after the amended termination date, the property will be listed exclusively with GARDNER REALTORS, for a period of no less than the original Marketing Agreement at the commission terms, and conditions agreed to in the Marketing Agreement...

The cancellation agreement illustrates that the Itelds were under contract with Gardner through July 9, 2012, and that if they desired to offer the property for sale within the next six (6) months, they were contractually required to use Gardner to do so. Therefore, Gardner continued to place a for sale sign in front of | Rthe subject property and continued to market the property in various periodicals throughout the remainder of 2012.

On July 2, 2012, Mrs. Iteld left a message on Ms. Farnsworth’s voicemail asking Ms. Farnsworth to call her. Ms. Farns-worth' returned Mrs. Iteld’s call and was informed by her that a new prospective purchaser, Ashton Soniat, was interested in the property. Thereafter, Ms. Farns-worth made contact with Mr. Soniat and sent him a copy of the brochure she had made. Ms. Farnsworth informed Mr. Soni-at about the details of the home, the location, the neighborhood, and that the Itelds were not interested in any lowball offers. Ms. Farnsworth and Ms. McCulloch communicated with Mr. Soniat on several more occasions during July of 2012, both by phone and email.

On July 29, 2012, Ms. McCulloch spoke with Mrs. Iteld by telephone. During this conversation, Mrs. Iteld mentioned that Mr. Soniat had discussed the idea of cutting out her agents. In early August of 2012, the Itelds, through their attorney Lanny Zatzkis, received an offer from Mr. Soniat to purchase the subject property. This offer was apparently rejected by the Itelds.

On September 6, 2012, the Itelds received a second offer to purchase the property from Mr. Soniat, again through Mr. Zatzkis. On September 13, 2012, the Itelds executed a “Louisiana Agreement to Buy or Sell.” The Itelds agreed to sell the subject property to Mr. Soniat for two million eight hundred thousand dollars ($2,800,000.00). The property was sold to Mr. Soniat on December 3, 2012. Gardner was not included in this transaction and no commission was paid. In early January of 2013, Ms. McCulloch discovered that Mr. Soniat had purchased the subject property from the Itelds.

|fiOn March 6, 2013, Gardner filed its petition for breach of contract and damages against the Itelds. Gardner later amended its petition to reflect its name change from GBS Properties LLC d/b/a Prudential Gardner Realtors, LLC. The Itelds answered the petition on March 25, 2013.

After a portion of the discovery had taken place, including the depositions of both Ms. Farnsworth and Ms. McCulloch, the Itelds filed a motion for summary judgment on October 24, 2013. Gardner filed an opposition to this motion and on November 23, 2013, Gardner filed its own motion for summary judgment. Following a January 24, 2014 hearing, both Gardner’s and the Itelds’ motions for summary judgment were denied on March 11, 2014.

During the course of discovery in addition to the depositions of Ms. Farnsworth, Ms. McCulloch, the depositions of Sylvia Roy, Diego Patino and Mr. Soniat were all taken. On February 4, 2015, the Itelds filed another motion for summary judgment. Thereafter, Gardner filed a cross-motion for summary judgment on March 20, 2015. On May 22, 2015, both the Itelds’ and Gardner’s motions for summary judgment were once again heard before the trial court and once again denied by the trial court on June 8,2015.

On June 18, 2015, the Itelds filed a motion for new trial regarding the trial court’s denial of their motion for summary judgment. Gardner filed an opposition to the motion for new trial and a hearing took place .on July 24, 2015. On August 14, 2005, the trial court granted the motion for new trial but again denied the motion for summary judgment.

17A jury trial took place from August 31, 2015 through September 4, 2015. On September 4, 2015, the jury rendered its verdict in favor of Gardner and awarded it the $114,000.00 in commissions prayed for. The jury found that Gardner had á valid marketing agreement with the Itelds, that the extension agreements were valid, and that the Itelds breached their agreement with Gardner.

On September 28, 2015, Gardner filed a motion for contradictory hearing for the award of attorney’s fees and finalization of the judgment with order. A hearing took place on December 9, 2015, where the trial court awarded Gardner “attorneys’ fees in the amount of FORTY-FIVE THOUSAND, SIX HUNDRED ($45,600.00) DOLLARS, being FORTY (40%) PERCENT of the Judgment rendered on the jury verdict in this case of $114,000, plus judicial interest on said award of attorneys’ fees from the date of judicial demand until paid” as well as costs stipulated by the parties to be five thousand & 00/100 dollars ($5,000.00) as rendered by the judgment signed on December 16, 2015.

On December 22, 2015, the Itelds filed a motion and order for suspensive appeal. The following day, Gardner filed a motion for a new trial on the issue of the award of attorney’s fees. On January 19, 2016, the trial court, sua sponte, issued an order vacating a portion of its order regarding attorney’s fees. A hearing on the motion for new trial took place on February 19, 2016. The trial court granted the motion for new trial on February 24, 2016 and ruled that the “amount of attorney’s fees to be awarded is equal to 40% of the total amount collected.”

On March 3, 2016, the Itelds filed their notice of suspensive appeal. On May 5, 2016, Gardner answered the appeal, seeking a modification of the attorney’s fees award.

^DISCUSSION

On appeal, the defendants raise twenty-two issues for review or specifications of error. However, the defendants only argue and brief nineteen of these issues or specifications, namely one through seventeen, nineteen, and twenty-two. It is well settled that if an appellant identifies an assignment of error or issue presented for review, but fails to brief that point with citations to the record and support in the law, that issue or assignment is deemed waived. McMaster v. Progressive Sec. Ins. Co., 2014-0155 (La.App. 4 Cir. 10/29/14), 152 So.3d 979, 983; Uniform Rules Courts of Appeal, Rule 2—12.4(B)(4). The remaining nineteen issues or specifications may be grouped into seven broader areas: (1) expert opinions; (2) the marketing agreement; (3) the extension agreements; (4) the cancellation agreement; (5) motions for summary judgment; (6) attorney’s fees; and (7) judicial interest. The plaintiffs have answered the appeal and seek additional attorney fees.

Standard of Review

An appellate court generally reviews the factual findings of a trial court according to the manifest error standard of review. Powell v. Regional Transit Authority, 96-0715 (La. 6/18/97), 695 So.2d 1326, 1328. This standard, which applies to jury trials, has been stated as follows:

When there is evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s finding, on review the appellate' court should not disturb this factual finding in the absence of manifest error. Stated another way, the reviewing court must give great weight to factual conclusions of the trier of fact; where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. The reason for this well-settled principle of review is based not only upon the trial court’s better capacity to evaluate live) n witnesses (as compared with the appellate court’s access only to a cold record), but also upon the proper allocation of trial and appellate functions between the respective courts.

Id. at 1329; Canter v. Koehring Co., 283 So.2d 716, 724 (La. 1973).

Again, a court of appeal may not set aside the jury’s finding of fact in absence of “manifest error” or unless it is “clearly wrong.” Stamps v. Dunham, 2007-0095 (La. App. 4 Cir. 9/19/07), 968 So.2d 739, 742. The Louisiana Supreme Court has provided a two-prong test for the reversal of a factfinder’s determinations: (1) the appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, and (2) the appellate court must further determine that the record establishes that the finding is clearly wrong or manifestly erroneous. Stobart v. State through DOTD, 617 So.2d 880, 882 (La. 1993) citing Mart v. Hill, 505 So.2d 1120, 1127 (La. 1987). The issue to be resolved by the appellate court is not whether the trier of fact was right or wrong, but whether the factfinder’s conclusions were reasonable. Stamps v. Dunham, 969 So.2d at 743.

Expert Opinions

The Itelds argue that they were the only party to enlist an expert at trial, and as a result, such testimony was unre-futed and must be accepted as true. However, while the Itelds were the only party to enlist an expert at trial, the jury was within its fact-finding discretion to reject the opinions of the experts at trial. The jury has the. latitude to choose between witnesses, including expert witnesses, and to use such expert testimony together with its own common sense and experience to arrive at its conclusions of fact. Burns v. CLK Investments V, L.L.C., 2010-0277 (La.App. 4 Cir. 9/1/10), 45 So.3d 1152; La. C. Evid. Art. 704. The jury may choose the opinion of one expert, or even reject the opinion of the sole expert. Bachemin v. Anderson, 97-2471 (La.App. 4 Cir. 7/29/98), 717 So.2d 677, 680. The jury’s acceptance, or rejection, of part or all of each expert’s testimony is within its discretion in fact finding. Joseph v. Archdiocese of New Orleans, 2010-0659 (La.App. 4 Cir. 11/10/10), 52 So.3d 203.

In the instant case, the Itelds sought the expert opinion of Michael Indest, a paralegal and two-week law student at the time of trial, who was qualified as an expert in real estate rules and regulations, real estate standard of practice, and procuring cause for rental sales and commissions. He opined that after the marketing agreement’s terms had completed, a new marketing agreement had to be drawn up and signed by all owners of the property and that the e-mail extensions were invalid. However, when cross-examined, Mr. Ind-est could not point to any form of law or statute to support his contentions. The Itelds also enlisted Arlene Edwards, an attorney for the Louisiana Real Estate Commission, as an expert in the field of real estate rules and regulations at trial. Ms. Edwards’s testimony echoed Mr. Ind-est’s testimony. She testified that a new marketing agreement was required to be drawn up after the end of the initial term of the market agreement. Ms, Edwards also testified that the three extension agreements were not in compliance with the Louisiana Real Estate Commission rules. However, when cross-examined, Ms. Edwards could not direct the jury to any law which required that the extension agreements must be signed by all the parties. Accordingly, we find no error in the jury’s discounting of the testimony of the Itelds’ experts.

Marketing Agreement

I^The version of La. R.S.37:1431(30) in force at the time of trial provides the following:

“Listing agreement” means a written document signed by all owners of real estate or their authorized attorney in fact authorizing a broker to offer or advertise real estate described in such document for sale or lease on specified terms for a defined period of time. A listing agreement shall only be valid if signed by all owners or their authorized attorney in fact.

The Rules and Regulations of the Louisiana Real Estate Commission serve as an extension of Louisiana real estate law and assist the Louisiana Real Estate Commission in the enforcement and administration thereof. Section 2503(A) of the Rules and Regulations dealing with owner authorization provides:

No broker or licensee sponsored by said broker shall in any way advertise property belonging to other persons as being for sale or rent or place a sign on any such property offering the property for sale or rent without first obtaining the written' authorization to do so by all owners of the property or their authorized attorney in fact.

In the instant case, the Itelds entered into a marketing agreement with Gardner to market and sell the subject property. The marketing agreement was signed by Ms. Farnsworth and Ms. Sylvia Roy of Gardner as well as both Dr. Bruce Iteld and his wife Sandy Iteld. Accordingly, the marketing agreement was valid.

Extension Agreements

The Itelds contend that under La. R.S. 37:1431(30) and Louisiana's rules and regulations applicable to all real estate agents, “all home owners must sign a listing agreement or ‘extension’ (in advance of the listing agreement expiring) for an agent to be authorized to advertise and sell a home.” However, the word 112“extension” that was included in the above quote is not present under the provisions of La. R.S. 37:1431(30) or under any other Louisiana statute or law dealing with real estate. For the Itelds to argue that the extension agreements are not in compliance with the law is erroneous. Furthermore, their assertion that an extension agreement must be signed by all owners in advance of the listing agreement expiring in order for Gardner to continue to market the subject property is baseless, not supported by Louisiana law, and in direct opposition to the intent of the parties.

This Court has held that a hiatus between an original contract’s expiration and the drawing up of the extension contract cannot be used to avoid giving legal effect to the client and the realtor’s intent. Latter & Blum, Inc. v. Nodier, 442 So.2d 854, 858 (La.App. 4 Cir. 1983). Legal agreements have the effect of law upon the parties and none but the parties can abrogate or modify them. Id. Courts are bound to give legal effect to all such contracts according to the true intent of the parties. Louisiana Nat’l Leasing Corp. v. A.D.F. Serv., Inc., 377 So.2d 92 (La. 1979). Based on the actions of the parties in the instant case, it is obvious that the Itelds intended for Ms. Farnsworth to continue to market the property on behalf of Gardner.

Cancellation Agreement

The Itelds’ claim that the cancellation agreement was not valid need not be addressed by this Court. The jury found that there was a valid marketing agreement in existence between the Itelds and Gardner on or after June 28, 2012. We agree with this finding. Only if the jury did not find that a valid marketing agreement was in existence would the question of whether a valid cancellation 11sagreement was in existence between Gardner and the Itelds on or after June 28, 2012 be broached.

In any event, the arguments put forward by the Itelds as to why the cancellation agreement was not valid, lack merit. The Itelds argue that they did not “offer the [subject] property for sale” within six (6) months after the cancellation agreement. However, less than three days after the execution of the cancellation agreement, Mrs. Iteld requested that Ms. Farnsworth market the subject property to the eventual purchaser, Mr. Soniat, and vet his financial capability to purchase the property. The cancellation agreement was executed by Ms. Farnsworth, on behalf of Gardner, and by both Dr. and Mrs. Iteld. The Itelds’ sole purpose in causing the cancellation agreement to be executed was so that they could refinance the property.

Motions for Summary Judgment

As noted above, two motions for summary judgment filed by the Itelds were denied by the trial court. The Itelds failed to file a supervisory writ regarding the denials of their motions for summary judgment. However, throughout the entirety of their appellant’s brief, arguments are raised as to why their motions for summary judgment should have been granted. If the Itelds desired to appeal the denial of their motions for summary judgment, the proper avenue to do so was to file a supervisory writ before this Court. See Herlitz Constr. Co. v. Hotel Investors of New Iberia, Inc., 396 So.2d 878 (La. 3/30/81). Such arguments are not now properly before this Court.

Attorney’s Fees

The trial court initially agreed with the jury’s verdict and awarded attorney’s fees of $45,600.00 (40% of the $114,000.00 verdict), based on the contingency fee | ucontract between Gardner and its attorney, Mr. Ricci. However, the trial court later required a hearing on the amount of attorney’s fees to be awarded. After several motions and several hearings took place, the trial court awarded Gardner the “amount of attorney’s fees to be awarded is equal to 40% of the total amount collected.”

The attorney’s fees award on “any judgment collected” is actually circular, whereby attorney’s fees cannot be calculated with finality because attorney’s fees would be awarded on the attorney’s fee award itself. Attorney’s fees not provided for by contract or statute cannot be awarded. Rousset v. Smith, 2014-1409 (La.App. 4 Cir. 9/23/15), 176 So.3d 632. Thus, Gardner’s entitlement to an attorney’s fee award was governed by the contract between Gardner and the Itelds, namely the marketing agreement. The marketing agreement provided: “In case of employment of counsel to enforce this agreement, Seller(s) will pay all costs and reasonable attorney’s fees incurred by broker...” Therefore, the marketing agreement itself limited Gardner’s reimbursement for attorney’s fees to the amount of attorney’s fees Gardner actually incurred or owed. Accordingly, we reverse the trial court’s award of attorney’s fees arid reinstate the jury’s award of 40% of the $114,000.00 verdict or- $45,600.00.

Judicial Interest

The trial court imposed the jury’s award of legal interest from the date of contractual breach. The Itelds argued that interest should have been awarded only from the date of judicial demand.

Legal interest , on a contract, like one in the instant case, is due from the date of breach. Thomas B. Catchings & Assoc. v. City of Baton Rouge, 621 So.2d 768, 769 (La. 1993). Therefore, judicial interest is owed on the principal amount of the Injury verdict of $114,000.00 from the date of breach. However, interest on the attorney’s fees would only be due from the date that those attorney’s fees, which are a form of penalty, are actually awarded. See Sher v. Lafayette Ins. Co., 2007-2441 (La. 4/8/08), 988 So.2d 186. Therefore, in the instant case, any award of interest on the attorney’s fees would only be from the date those attorney’s fees were awarded.

We amend the trial court’s award of judicial interest to reflect that legal interest is due on the principal amount from the date of the breach, but the interest on attorney’s fees is only from the date of award.

CONCLUSION

For the above and foregoing reasons, we affirm the judgment below in all but two respects. First, we amend the trial court’s judgment to reinstate the jury’s verdict to award attorney fees of 40% on the $114,000.00 verdict or $45,000.00. Secondly, we amend the judgment to reflect that legal interest on the award of attorney’s fees is only due from the date of the award.

AFFIRMED AS AMENDED

JENKINS, J., CONCURS IN PART AND DISSENTS IN PART

JENKINS, J.,

CONCURS IN PART AND DISSENTS IN PART

hi respectfully dissent from the majority’s finding that, because the Itelds failed to file a supervisory writ from the trial court’s denial of their motions for summary judgment, they cannot challenge those rulings on appeal. The denial of a motion for summary judgment is an interlocutory judgment. La. Code Civ. P. Art. 968. “But it is well settled that, although an interlocutory judgment may not in itself be immediately appealable, it is nevertheless subject to review by an appellate court when a judgment is rendered in the case which is appealable.” Wallace C. Drennan, Inc. v. City of New Orleans, 10-1301, p. 2 (La.App. 4 Cir. 4/27/11), 65 So.3d 705, 706 n.4. In other words, “[w]hen an unrestricted appeal is taken from a final judgment, the appellant is entitled to seek review of all adverse interlocutory rulings prejudicial to him, in addition to the review of the final judgment.” Id. I also disagree with the majority’s opinion to the extent that it suggests that the only mechanism by which to challenge an adverse ruling on a motion for summary judgment is by a supervisory writ. See Doucette v. Guient, 15-1346, p. 5 (La.App. 4 Cir. 12/29/16), 208 So.3d 444, 456 (Jenkins, J., dissenting).

I concur with the majority opinion in all other respects.

      . When dealing with Mr. DiCaprio, the Itelds did not require a pre-qualification letter.

      . Mr. Patino, a representative of Morgan Stanley, worked with the Itelds in the refinancing of the property.

      . La.R.S.37:1431(30) at the time of trial was the definition of a "listing agreement.” Since the time of the trial, the Louisiana legislature has moved some of the terms in the definitions section. The definition of "listing agreement” remains the same, but it is now presently defined under La. R.S. 37:1431(16).


source: Caselaw Access Project

author: Judge Marion F. Edwards, Pro Tempore

license: Public Domain

text:
    CONCERNED CITIZENS OF EASTOVER, LLC v. EASTOVER NEIGHBORHOOD IMPROVEMENT AND SECURITY DISTRICT, et al
    NO. 2016-CA-0756
    Court of Appeal of Louisiana, Fourth Circuit.
    MARCH 22, 2017

      Ernest S. Anderson, Joseph P. Anderson, ANDERSON & ANDERSON, 2217 Second Street, Slidell, LA 70458, COUNSEL FOR CHARLES J. COCH-RANE AND MADALYN M. COCH-RANE, PLAINTIFFS/APPELLANTS
    Albert A. Thibodeaux, Daniel E. Davillier, DAVILLIER LAW GROUP, LLC, 1010 Common Street, Suite 2510, New Orleans, LA 70112, COUNSEL FOR EASTOVER NEIGHBORHOOD IMPROVEMENT AND SECURITY, DEFENDANT/APPELLEE
    (Court composed of Judge Daniel L. Dysart, Judge Madeleine M. Landrieu, Judge Marion F. Edwards, Pro Tempore)
   Judge Marion F. Edwards, Pro Tempore

11 Plaintiffs/Appellants, Charles J. Coch-rane, Sr. and Madalyn M. Cochrane, appeal a declaratory judgment of the district court that found La. R.S. 33:9091.21, which created the Eastover Neighborhood Improvement and Security District, constitutional. For the following reasons, we hereby affirm.

PROCEDURAL HISTORY AND FACTS

Mr. and Mrs. Cochrane (“Plaintiffs”) own Lot 13, Square G, in the Eastover Subdivision in Orleans Parish. On October 24, 2013, Concerned Citizens of Eastover, LLC, filed a petition challenging the constitutionality of House Bill 323, Louisiana Act 24 and Proposed Revised Statute 33:9091.21. According to the Eastover Subdivision Newsletter, authored and published by the Eastover Property Owners Association (“EPOA”) Board of Directors, dated September 25, 2013, House Bill 323 was proposed for the following reasons, in pertinent part:

House Bill 323, which creates the East-over Neighborhood Improvement and Security District, will be on the November 16, 2013, general election ballot for resident approval... [t]his creates an opportunity that will facilitate the collection of association dues (assessment) from all property owners. This bill does not increase your assessments, but rather will allow for the annual billing of assessments via the City of New | {.Orleans property tax billing system and would be effective for 2014.
The EPOA [Eastover Property Owners Association] has approximately three hundred (300) properties. Two hundred (200) owners are seriously committed to our community and are paying them assessments. The remaining one hundred (100) properties are owned by the developer, banks, speculators and homeowners who actually reside in Eastover’s Subdivision. Owners who are not paying their assessments reduce our EPOA’s budget by more than $125,000 per year. This places a financial burden on our Association’s ability to meet our financial obligations and does not provide adequate funds for improvements.
When we further analyze the one hundred (100) Eastover property owners who are not paying assessments, approximately 45 of them live in Eastover and apparently refuse to pay their assessments. House Bill 323 will require all property owners to pay their EPOA assessments when they pay their property taxes.

Prior to being submitted to the voters of Eastover Subdivision (Precinct 44), La. R.S. 33:9091.21 became effective on June 12, 2013, as a result of the filing of House Bill 323 in the 2013 Regular Session of the Louisiana Legislature.

La. R.S. 33:9091.21 Eastover Neighborhood Improvement and Security District provides, as follows:

A. Creation. There is hereby created within the parish of Orleans, as more specifically provided in Subsection B of this Section, a body politic and corporate which shall be known as the Eastover Neighborhood Improvement and Security District, referred to in this Section as the “district”. The district shall be a political subdivision of the state as defined in the Constitution of Louisiana.
B. Boundaries. (1) The district shall be comprised of all property located in Eastover Subdivision within the lafollowing boundaries: the northern boundary is the northern boundary of the Eastover Subdivision, the southern boundary is Dwyer Road, the eastern boundary is the I—10 Service Road, and the western boundary is the Jahncke Canal.
(2)The property located at 5690 East-over Drive shall not be included in the district as long as a sales and administration office is located on the property and the office is available to the board to conduct its business.
C. Purpose. The district is established for the primary object and purpose of promoting and encouraging the beautification, security, and overall betterment of the district.
D. Governance. (1) In order for the orderly development and effectuation of the services to be furnished by the district and to provide for the representation in the affairs of the district of those persons and interests immediately concerned with and affected by the purposes and development of the area included within the district, the affairs of the district shall be managed by the members of the Eastover Property Owner’s Association’s board of directors, referred to in this Section as the “board”.
(2) The minute books and archives of the district shall be maintained by the board’s secretary. The monies, funds, and accounts of the district shall be in the official custody of the board.
(3) The duties of the officers shall be fixed by bylaws adopted by the board. The board shall adopt such rules and regulations as it deems necessary or advisable for conducting its business affairs. It shall hold regular meetings as shall be provided in the bylaws and may hold special'meetings at such times and places within the district as may be prescribed in the bylaws.
(4) A majority of the members of the board shall constitute a quorum for the transaction of business. The board shall keep minutes of all meetings and shall make them available through the board’s secretary to residents of the district.
(5) The members of the board shall serve without compensation.
14E. Powers and duties. The district, acting through the board, shall have the following powers and duties:
(1) To receive and expend funds collected pursuant to Subsection F of this Section and in accordance with a budget adopted as provided by Subsection G of this Section.
(2) To enter into contracts with individuals or entities, private or public, for the provision of security patrols in the district.
(3) To purchase items and supplies which the board deems instrumental to achieving the purpose of the district.
(4) To perform or have performed any other function or activity necessary for the achievement of the purpose of. the district.
F. Parcel fee. The governing authority of the city of New Orleans is hereby authorized to impose and collect a parcel fee within the district subject to and in accordance with the provisions of this Subsection.
(1) (a) The amount of the fee shall be as requested by duly adopted resolution of the board. The fee shall be a flat fee per parcel of land, and the initial fee shall be sixteen hundred fifty-two dollars per year for each parcel.
(b) If multiple adjacent parcels are combined for the purpose of housing a single family dwelling, the flat fee for the combined parcel shall be calculated to be one and four tenths times the single parcel fee for two adjacent parcels and one and six tenths times the single parcel fee for three or more adjacent parcels.
(2) (a) The fee shall be imposed on each parcel located within the district.
(b) For purposes of this Section, “parcel” means a lot, a subdivided portion of ground, an individual tract, or a “condominium parcel” as defined in R.S. 9:1121.103.
(c) The owner of each parcel shall be responsible for payment of the fee.
(3) (a) The fee shall be imposed only after the question of its imposition has been approved by a majority of the | ¿registered voters of the district voting on the proposition at an election held for that purpose in accordance with the Louisiana Election Code.
(b) The amount of the fee may be increased or decreased by duly adopted resolution of the board if approved by a majority of the registered voters of the district voting on the proposition at an election as provided in Subparagraph (a) of this Paragraph.
(4) The fee shall be collected at the same time and in the same manner as ad valorem taxes on property subject to taxation by the city are collected.
(5) Any parcel fee which is unpaid shall be added to the tax rolls of the city and shall be enforced with the same authority and subject to the same penalties and procedures as unpaid ad valorem taxes.
(6) (a) The proceeds of the fee shall be used solely and exclusively for the purpose and benefit of the district; however, the city may retain one percent of the amount collected as a collection fee.
(b) The city of New Orleans shall remit to the district all amounts collected not more than sixty days after collection.
G. Budget. (1) The board shall adopt an annual budget in accordance with the Louisiana Local Government Budget Act, R.S. 39:1301 et seq.
(2) The district shall be subject to audit by the legislative auditor pursuant to R.S. 24:513.
H. Miscellaneous provisions. (1) It is the purpose and intent of this Section that the additional law enforcement or security personnel and them services provided for through the fees authorized in this Section shall be supplemental to and not in lieu of personnel and services provided in the district by the New Orleans Police Department.
(2) If the district ceases to exist, all funds of the district shall be transmitted by the board to the city of New Orleans, and such funds, together with any other funds collected by the city of New Orleans pursuant to this Section, shall be maintained in a separate account by the city and shall be used only to promote, encourage, and | r,enhance the security, beautification, and overall betterment of the area included in the district. Acts 2013, No. 244, § 1, eff. June 12, 2013.

Thereafter, on July 25, 2013, the City of New Orleans introduced, and passed by a vote of 6-0, Resolution No. R-13-263, calling a special election in the Eastover Neighborhood Improvement and Security District for Saturday, November 16, 2013. According to Attorney General, Jeffrey Landry, the Resolution also provided, as follows:

The Resolution reiterated the provisions set forth in Act 244, and further noted that the Board of Directors of the East-over Property Owners Association met on July 23, 2013 and adopted a resolution requiring the City Council of New Orleans to levy (and collect) in perpetuity an annual flat $1,652 fee per parcel commencing on January 1, 2014, subject to the question of the imposition of such fee being approved by a majority of the registered voters of the District voting on the question at the November 16, 2013 general election.

On November 16, 2013, sixty (60%) percent of the registered voters in the Eastover Subdivision voted in favor of a proposition which established the annual Eastover property owners assessment as one lump sum payment of $1,652.00 instead of four (4) quarterly installment payments totaling approximately $1,652.00. Additionally, the proposition required the annual payment to be made to the City of New Orleans in conjunction with the annual property tax payment.

On August 4, 2014, Concerned Citizens filed an amended petition against Eastover Neighborhood Improvement and Security District and EPOA seeking a declaratory judgment regarding the constitutionality of La. R.S. 33:9091.21. On |7August 5, 2014, Plaintiffs were first named as party plaintiffs in an amended petition. Thereafter, on June 8, 2015, Plaintiffs filed a motion for declaratory judgment, and/or summary judgment, arguing that La. R.S. 33:9091.21 violates the Contracts Clause of the Constitution of the United States, and the State of Louisiana and is unconstitutional. After a hearing on March 2, 2016, the district court denied Plaintiffs’ motion for summary judgment and found La. R.S. 33:9091.21 to be constitutional. Plaintiffs now appeal this final judgment.

DISCUSSION

The sole issue before this Court is whether the district court erred in finding that La. R.S. 33:9091.21 does not violate the Contracts Clause of the Constitution of the United States of America and the State of Louisiana.

Article I, Section 10[1] of the United States Constitution, provides:

No State shall.. .pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts...

Article I, Section 23 of the Louisiana Constitution of 1974 provides:

No bill of attainder, ex post facto law, or law impairing the obligation of contracts shall be enacted.

The Louisiana Supreme Court has described these provisions as “virtually identical” and “substantially equivalent.” Board of Commissioners of Orleans Levee District v. Department of Natural Resources, 496 So.2d 281, 291 (La.1986). Although the language of each clause is facially absolute, its prohibition must be accommodated to the inherent police power of the state to safeguard the vital interests of its people. Energy Reserves Group, Inc. v. Kansas Power and Light Company, 459 U.S. 400, 410, 103 S.Ct. 697, 704, 74 L.Ed.2d 569 (1983); Board of Commissioners, 496 So.2d at 292. As such, the United States Supreme Court stated in Allied Structural Steel Co. v. Spannaus, 438 U.S. 234, 241, 98 S.Ct. 2716, 2721, 57 L.Ed.2d 727 (1978), quoting Manigault v. Springs, 199 U.S. 473, 480, 26 S.Ct. 127, 130, 50 L.Ed. 274 (1905):

It is the settled law of this court that the interdiction of statutes impairing the obligation of contracts does not prevent the State from exercising such powers as are vested in it for the promotion of the common weal, or are necessary for the general good of the public, though contracts previously entered into between individuals may thereby be affected. This power, which, in its various ramifications, is known as the police power, is an exercise of the sovereign right of the Government to protect the lives, health, morals, comfort and general welfare of the people, and is paramount to any rights under contracts between individuals.

The question of whether La. R.S. 33:9091.21 is constitutional is a legal question which will be reviewed de novo. Louisiana Municipal Association, et al. v. State of Louisiana and the Firefighters’ Retirement System, 04-0227 p. 45 (La. 1/19/05), 893 So.2d 809, 842. This court has repeatedly held that statutes and legislative acts are generally presumed to be constitutional and the party challenging the validity of the statute has the burden of proving it is unconstitutional. Id. at p. 45, 893 So.2d at 843. Thus, in this declaratory judgment action, the Plaintiffs bear the burden of proving the unconstitutionality of the legislative acts at issue.

The Louisiana Supreme Court, in Board of Commissioners, 496 So.2d at 292-293, set forth the appropriate contract clause analysis as enunciated by the United States Supreme Court in Energy Reserves Group, Inc. Board ofCommission-ers. Under this four-step analysis, the court must determine whether the state law has, in fact, impaired a contractual relationship. The party complaining of unconstitutionality has the burden of demonstrating, first, that the statute alters contractual rights or obligations. Second, if an impairment is foundJs the court must determine whether the impairment is of constitutional dimension. Third, if the state regulation constitutes a substantial impairment, the court must determine whether a significant and legitimate public purpose justifies the regulation. Fourth, if a significant and legitimate public purpose exists, the court must determine whether the adjustment of the rights and responsibilities of the contracting parties is based upon reasonable conditions and is of a character appropriate to the public purpose justifying the legislation’s adoption. See also Segura v. Frank, 93-1271 (La. 1/14/94), 630 So.2d 714, 729.

Plaintiffs argue that La. R.S. 33:9091.21 substantially impairs the contractual rights of all lot owners under the Articles of Incorporation and Act of Restrictions of Eastover Subdivision by replacing'the way that the homeowners association assesses, collects and disburses charges related to the operation, maintenance and administration of the subdivision. Further, Plaintiffs argue that there is no significant and legitimate public purpose justifying the substantial and severe impairment of La. R.S. 33:9091.21 to the vested contractual rights of lot owners under the community documents. Thus, Plaintiffs argue that the district court erred in failing to conclude that the statute violates the federal and state constitutional prohibitions against impairment of contractual obligations, as it goes too far and is neither reasonable nor appropriate to its goal of expanding the power of the board of directors of the nonprofit association using the police power of the City of New Orleans to collect association dues.

In response, the Eastover Neighborhood Improvement and Security District responds that Plaintiffs have failed to establish that La. R.S. 33:9091.21 impairs the contractual obligations between the homeowners and the EPOA. Specifically, it argues that the rights of the Eastover property owners prior to, and subsequent to the ' i mvoter approval of the Eastover Neighborhood Improvement and Security District, are virtually identical because the amount of the assessment is the same ($1,652.00), with the only change being that the property owners now pay an annual lump sum payment to be paid concurrently with the payment of property tax to the City of New Orleans instead of having four quarterly payments to the EPOA. Thus, Eastover Neighborhood Improvement and Security District argues that the Plaintiffs failed to prove that La. R.S. 38:9091.21 creates a substantial impairment to the parties’ contractual obligations. We agree.

In finding La. R.S. 33:9091.21 constitutional, the district judge provided the following oral reasons for her ruling, which we find worth noting, as follows:

I just want to make sure. So I reviewed the original covenants as well as the Articles of Incorporation of the homeowners association [sic] I guess of the board of directors as well as what the original owners contemplated and I find that the creation of the Security District does not violate the constitution, in particular the Contract Clause of the constitution insofar as the original covenants span approximately 30 some odd pages. The Board of Directors Articles of Incorporation or the Articles of Incorporation of the Eastover Property Owners Association span[s] approximately maybe about 10 pages. In that[,] they talk about how property should be maintained, how the—from the building of the homes to the placement of garages to all sorts of things that this creation of the Security District do [sic] not impinge upon. It also talks about the fact that they can levy fees. They can levy fines. They can levy whatever it is that they believe necessary as long as I think it was two-thirds of the membership agree.
Well, that’s what happened here. You had a vote by the board to have this legislation go into effect and then you had a vote—because it’s a constitutional provision[,] you had a vote by the homeowners. It was presented on a ballot to each.of the homeowners. .
I fully adopt the Attorney General’s argument as stated in their brief as to why this is constitutional. The Inhomeowners had an opportunity to vote on this issue. They voted overwhelmingly. They didn’t vote unanimously. It was 60/40. They did vote overwhelmingly in support of this measure. I did not see anywhere in—and unless I just overlooked it, anywhere in the covenants, and if I overlooked it I apologize, where it says under no circumstances can we ever enact any legislation to collect fees or fines or whatever for these assessments for these properties. It does not restrict this contract that the—when a homeowner buys property in Eastover, it doesn’t say at some point in the future we are going to restrict how monies are going to be collected for homeowners dues. Nowhere in here does it say that. I looked for it, I didn’t find it. Likewise, I didn’t find [sic] we’re never going to be anything other than what we are. 50 years these covenants are going to remain in place, covenants to make sure that these properties look a certain way, perform a certain way, the common areas are a certain way, but it doesn’t say specifically but in no way will the board never [sic] have authority to levy fines or fees or enact anything that they want in order to make sure that these properties are maintained a certain way by collecting the homeowners association dues, and so I disagree, Mr. Klein, [Plaintiffs’ attorney] respectfully with the arguments that you made before me this morning[,] because I just don’t think that the contracts before me a/k/a the covenants and the articles of incorporation of the homeowners association espouse those points. It’s lacking in that sense.
I do believe it meets the—if I have to go that far [sic] it meets the Supreme Court case" of Energy. I don’t think that it is a substantial impairment on any rights of this contract. It’s one small provision. As I’ve stated these covenants are 30 odd pages[,] very detailed pages. The Security District does not usurp any of those covenants. It only expands the ability of the board to efficiently collect homeowners association dues. It is an efficiency provision as far as I’m concerned and I do find that it is constitutional[,] and so far that reasonf,] I am declaring that Louisiana Revised Statute 33:9091.2[1] is constitutional.

After reviewing both the EPOA’s Act of Restrictions and its Articles of Incorporation, we find that the contractual relationship between the EPOA, and the members of the EPOA, regarding the assessment and collection of I ^dues/assessments, have always involved a combination of authority exercised by members at large and the actions of the EPOA Board of Directors. According to the documents in the record, the owner, and developer, of the Eastover Subdivision Lake Forest, Inc. set the initial amount of the assessment a record title owner was obligated to pay upon purchasing property in the subdivision. Thereafter, “[ejvery person or entity who is a record title owner of any of the following described lots in Eastover Subdivision... shall ipso facto be a member of the Association. Each member shall be entitled to the rights and privileges and subject to the obligations as are more fully set out in... the Articles of Incorporation.” See Article Four, Property Owners’ Association. According to Article IV of the Eastover Articles of Incorporation regarding the members’ voting rights provides as follows:

A member shall be entitled to one (1) vote for each such lot within “The Properties”, of which he is the record title owner. When more than one (1) person or entity owns or has an interest in any said lot within “The Properties”, all such person shall be members, and the vote for such lot shall be exercised as they among themselves determine, but in no event shall more than one (1) vote be cast with respect to such lot. In the event of any future annexations in conformity with Article VI herein, the owners of lots therein will also be members of this corporation.

Further, the Article of Incorporation grants power to the general membership and the Board of Directors to change the amount of the Eastover Assessment. Article VII of the Articles of Incorporation provides in pertinent part:

The amount of regular dues and/or assessments are hereby initially fixed at $180.00 per quarter lot but may be subsequently changed by a two-thirds (2/3) vote of the total membership, except that the Board of Directors of this corporation shall have the authority from time-to-time to change the then current regular dues and/or assessments by ten (10%) percent in any given twelve (12) month period.

| ^Additionally, this Court, in Eastover Property Owner’s Ass’n, Inc. v. Cochrane, 02-1502 (La.App. 4 Cir. 5/21/03), 848 So.2d 710, previously recognized the authority of the EPOA Board of Director’s right to adjust the amount of the EPOA assessment. Specifically, this Court stated, in pertinent part:

The amount of dues and/or assessments was originally set at $180.00 per quarter but has since been increased pursuant to a provision of the act which gives the board of directors the authority to change the regular dues or assessments by ten percent in any given twelve month period. This has happened on five occasions since 1987. In August of 1995, the board of directors passed a resolution that imposed a ten percent late fee on the fifteenth day of the second month of a quarter for the late payment of dues and/or assessments. Additionally, the members of the EPOA approved a one time special assessment of $150.00 in 1995.

Id. at pp. 1-2, 848 So.2d at 711.

Again, it is worth reiterating that sixty percent of the residents in the Eastover Subdivision voted in favor of La. R.S. 33:9091.21, which required each property owner to make an annual payment of $1,652.00 per parcel of land to the City of New Orleans concurrent with the payment of the annual ad valorem tax payment. After reviewing the EPOA’s Act of Restrictions, as well as its Articles of Incorporation, we do not find that a one lump sum payable to the City of New Orleans in conjunction with the homeowners’ annual property tax payment, instead of quarterly payments of the same amount to the EPOA Board of Directors, is an impairment of constitutional dimensions. Accordingly, we agree with the trial court that Plaintiffs failed to support the allegation that La. R.S. 33:9091.21 operated as a substantial impairment to the contractual relationships between the homeowners and the EPOA.

|uEven assuming that Plaintiffs proved a substantial impairment of a contractual relationship, we find that the EPOA had a significant and legitimate public purpose in promoting and encouraging the beautification, security, and overall betterment of its district that justified enacting La. R.S. 33:9091.21.

For these reasons, we affirm the judgment of the district court, which found La. R.S. 33:9091.21 to be constitutional.

AFFIRMED

      . The bill that initiated the Eastover Security District Statute, House Bill 323, was introduced by Representative Austin Badon, and received the following votes: the Committee on Municipal, Parochial and Cultural Affairs passed the bill by a vote of 13-0; the House of Representatives passed the bill by a vote of 91-1; the bill was passed out of the Senate Committee on Local and Municipal Affairs; the Louisiana Senate passed the bill 39-0. House Bill 323 became Act 244 when signed by the Governor.

      . Under the proposition, the City of New Orleans retains 1% of the amount collected as a collection fee and requires the City to remit to the district all amounts collected not more than 60 days after collection. See La. R.S. 33:9091.21F(6)(a), supra.


author: Judge Dennis R. Bagneris, Sr. JENKINS, J.,

text:
    Bruce Macon MOORE v. Amy KNOWER
    NO. 2016-CA-0776
    Court of Appeal of Louisiana, Fourth Circuit.
    MARCH 23, 2017

      Scott M. Galante, Salvador I. Bivalac-qua, GALANTE & BIVALACQUA LLC, 650 Poydras Street, Suite 2615, New Orleans, LA 70130, COUNSEL FOR PLAINTIFF/APPELLEE, BRUCE MACON MOORE
    Stacy Renee Palowsky, Palowsky Law, LLC, 140 Tomahawk Lane, Covington, LA 70435, COUNSEL FOR DEFENDANT/APPELLANT, AMY KNOWER
    (Court composed of Chief Judge James F. McKay, III, Judge Dennis R. Bagneris, Sr., Judge Rosemary Ledet, Judge Regina Bartholomew Woods, Judge Sandra Cabrina Jenkins)
   Judge Dennis R. Bagneris, Sr.

11 This appeal involves the ownership of a beloved pet, Abby, and the related issues of support and care.. Following a two-day bench trial on the merits, the First City Court found in favor of plaintiff-appellee, Bruce Macon Moore, and awarded him the use and management of the co-owned dog, Abby. Defendant-appellant, Amy Knower, alleges that she is the sole owner of Abby and argues on appeal the following assignments of error: (1) the trial court erred in finding that she failed to support her claim for full ownership; (2) the trial court erred in finding that she co-owned Abby with Mr. Moore; (3) the trial court erred in failing to accept the testimony of Sheila Ford of the Mississippi Boston Terrier Rescue, that she alone adopted Abby; (4) the trial court erred “by stating that there was no basis,in law for her to decide the custody of a dog and then doing just that;” and (5) the trial court erred by exercising jurisdiction over this matter because City Courts do not have jurisdiction over partition proceedings per Code of Civil Procedure article 4847(B). After a thorough review of the record, we affirm the judgment of the trial court.

| ^Before addressing the merits, we first address whether First City Court has subject matter jurisdiction over this action under La. C.C.P. art. 4847(B), which states that “city courts shall not have jurisdiction in tutorship, curatorship, emancipation, and partition proceedings.” La. C.C.P. art. 4843(E) provides that the jurisdiction of the city court in New Orleans is concurrent with the district court in cases where the amount in dispute or amount of the property involved does not exceed $25,000.00. Further, a partition proceeding between co-owners must be done in kind or by Iicitation, neither of which are appropriate in this situation involving a living animal.

The disposition for dog ownership in this case was a novel issue for the trial court. Louisiana Civil Code article 4 states that “[w]hen no rule for a particular situation can be derived from legislation or custom, the court is bound to proceed according to equity. To decide equitably, resort is made to justice, reason, and prevailing usages.” In an effort to proceed according to equity principles, the trial relied on La. C.C. art. 802, which provides that “a co-owner is entitled to use the thing held in indivisión according to its destination, but he cannot prevent another co-owner from making such use of it.” The trial court also relied on La. C.C. art. 808, which states that “when the mode of use and management of the thing held in |sindivision is not determined by an agreement of all co-owners and partition is not available, a court, upon petition by a co-owner, may determine the use and management.” After a review of these codal articles, we find that the trial court, in- an effort to be fair to both parties, correctly applied the laws of co-ownership and breach of contract to the facts of this case; thus, we find no merit in Ms. Knower’s assignment of error that the trial court’s judgment should be dismissed as a nullity for lack of subject matter jurisdiction.

In regard to the merits, the issue before this Court is whether the trial court manifestly erred in its findings that (1) Abby was co-owned, and (2) that Mr. Moore “is the best person to determine the use and management of Abby.” The trial court issued extensive and comprehensive written reasons for judgment on April 18, 2016, that more than adequately state the facts and explain the decision, and '-are stated as follows:

In the Original Petition for Damages, the plaintiff, Bruce Macon Moore, alleges that in the summer of 2010 he and the' defendant, Amy Knower, were in a personal relationship and while they were living together in his home, they mutually decided to adopt a pet. Plaintiff alleges that both parties jointly adopted the pet, Abby, a Boston terrier from the Mississippi Boston Terrier Rescue (MBTR) in December 2010. Until September 2012, the parties lived together and jointly shared expenses for the care and management of the dog, Abby.
After the parties ended their cohabitation in 2010, they began an arrangement in which each person co-possessed, Abby. Abby traveled between their respective residences, one week on and one week off, exchanging on Sundays. The parties also retained keys to each other’s homes. During this time, and from time to time they would assist each other with the feeding and walking of Abby if either had a conflict.
pFor approximately two years, Mr. Moore and Ms. Knower continued to co-possess Abby in this fashion. The parties were very civil to each other during their breakup. They continued to associate with the same friends, and also socialized with each other from time to time. In spite of their relationship status, the parties continued to spend a lot of time together. In August of 2014, Mr. Moore and Ms. Knower decided to give their relationship a second chance.
While the plaintiff and the defendant resumed their romantic relationship in 2014, they did not cohabitate again. They continued to live separately, but the couple also co-possessed Abby according to the same schedule used during the breakup, each still -willing to aid the other in the event of a conflict during his or her time with the dog. The parties continued this arrangement for the care, and management of Abby until July 2015. For approximately five years, each party cared for Abby, expended monies on pet supplies, medication, veterinarian expenses, food, etc. Neither party disputes the existence of an informal and mutual arrangement to care for Abby.
The parties amicably split again in May 2015. Although both the plaintiff and the defendant understood the finality of the breakup, they continued to co-possess Abby until the arrangement came to an abrupt end during the Fourth of July weekend in 2015. The plaintiff testified at trial that during this holiday weekend, suddenly and without warning, Ms. Knower refused to exchange Abby on them next exchange date of July 9, 2015. Plaintiff tried, through email communication, telephone calls and text messages, to convince Ms. Knower to convert back to their arrangement, to no avail. Throughout his testimony, Mr. Moore was adamant that it was always the intention of the parties to jointly care for Abby regardless of their relationship status.
Mr. Moore testified that during the course of their relationship, the only shared expense, the only object that both parties shared was Abby. At the time the parties lived together, he avers that he was responsible for the payment of his mortgage, though Ms. Knower did pay the utilities at his home while she resided there. He also stated that they did not share any furniture, electronics, or any other household items; their finances were completely separate. The care of Abby was distinct, however. Both
plaintiff and defendant provided for care, comfort, and management of the dog. Once Amy unilaterally decided to terminate their co-possession arrangement, Macon [Mr. Moore] was surprised and filed the instant suit.
Mr. Moore testified that it was always their joint intention to co-possess Abby. He asserts that the parties always contemplated this because they did not want Amy’s [Ms. Knower’s] prior ownership of a dog, Rocky, to negatively affect their chances of adopting Abby. Ms. Knower had given Rocky away to a friend, Steve Valack, prior to [.¡her cohabitation with the plaintiff. He recalls them filling out the application to adopt Abby together on the MTBR website. He also testified that both parties went to Pet Smart in Mississippi to collect Abby after the application was approved. Before the dog’s arrival, Mr. Moore purchased various items from Pet Smart for Abby. Once Abby arrived, both Ms. Knower and Mr. Moore interacted with the dog, and they brought the dog to Mr. Moore’s home.
To bolster his argument that the parties always intended to jointly care for Abby, Mr. Moore called several witnesses at trial. Steve Valack testified that he and Mr. Moore had been friends for years and that he gladly took Rocky when Ms. Knower sought a new home for the dog. Mr. Valack also testified that he frequently socialized with the couple and he understood that the couple had adopted Abby together.
The plaintiff also called Kristin Schil-linger and her husband Gary Schillinger, a couple with whom the plaintiff and defendant were close friends. Kristin testified that prior to Abby’s adoption, both Mr. Moore and Ms. Knower were excited they were getting a pet together. She also testified that she became very close to Abby herself: When Mrs. Schil-linger was out of work, she happily walked Abby for Knower and Moore. She testified that both parties paid her for walking Abby either in cash or by check. Even though Mrs. Sehillinger heard both plaintiff and defendant refer to Abby as “my dog”, sole ownership of Abby was never discussed. It was her understanding that Abby was their dog. [Emphasis in original]
Gary Sehillinger similarly testified that the parties’ actions demonstrated that Abby was their dog. The care of Abby had always been a joint venture, and he did not recall either party speaking in terms of sole ownership. The Schillingers also testified that they were both impressed with the level of maturity displayed by the plaintiff and the defendant after the first break up. The Schillingers testified that both Knower and Moore loved Abby and were committed to sharing their time with the dog although they were no longer a couple. The Schillingers were both surprised when Ms. Knower refused to return Abby in July 2015 because the arrangement seemed to be working so well. Abby was a very happy, social dog, and seemed to thrive with both parties.
Amy Knower’s testimony, however, disputes that the parties ever co-possessed Abby. She testified that she always considered Abby to be solely her dog. Though she freely admitted during testimony that Macoh [Mr. Moore] did care for Abby regardless of their relationship status, she testified that Abby was hers alone.
Ms. Knower alleges that after the first breakup in 2012 with Mr. Moore, she only allowed him to spend time with Abby so as not to | compound his sadness over her termination of the relationship. She stated that she had always intended to sever the shared arrangement. After the last breakup, sometime in June, she testified that Mr. Moore asked her to feed Abby for one night because he had a prior engagement; she agreed but was later’ told he was on a date. She felt foolish that she continued in this arrangement to share the dog, as she felt Abby was hers alone, and she decided to work up the courage to confront Mr. Moore. She finally took sole possession of Abby in July 2015 to free herself from her tether to Mr. Moore.
The Court first acknowledges that this lawsuit presents a novel issue. At various times during testimony, and in conferences, the Court advised both parties as well as counsel that this is an emotionally fraught issue, and the decision rendered by the Court shall be emotionally detrimental to one party to this suit. The Court tried to settle this matter to the satisfaction of both parties, but the parties were unable to compromise. Therefore, each party must abide the judgment of this Court.
Although it is obvious that both parties are attached to Mrs. Abigail Spark-lepants, the full name of Abby, this dispute is essentially about ownership of an animal. Although both Mr. Moore and Ms. Knower may consider Abby his or her “baby”, there is no basis in the law for the Court to decide the issue of custody of a dog.
The Court depends on the law of co-ownership to make its determination. The defendant does not deny that the plaintiff shared in expenses for the care and maintenance of Abby during their cohabitation and well after. The defendant also agrees that she has been reimbursed some expenses for Abby by the plaintiff. Both parties provided food and shelter for Abby throughout her life, and both made provisions for her to be walked, boarded, etc. in case of his or her absence. Thus, the Court finds that through action, word, and deed, the parties co-owned Abby.
The Court relies heavily on Louisiana Civil Code Articles 802 and 803 to settle this dispute. La. C. C. art. 802 provides that a co-owner is entitled to use the co-owned thing according to its destination, but he cannot prevent another co-owner from making such use of it. Thus, Ms. Knower violated this provision when she did not return Abby to Mr. Moore after the Fourth .of July weekend in 2015.
La C. C. art. 803 states when the mode of use and management of the thing held in indivisión is not determined by an agreement of all co-owners and partition is not available, a court, upon petition by a co-owner, may determine the use and management. The unofficial agreement to share Abby was terminated by Ms. Knower’s unilateral decision to no longer share the dog with Mr. Moore. Even though she 17is a family pet, the Court must treat Abby just as it would a co-owned piano or a co-owned piece of artwork. Although allowable by law, selling Abby and splitting the proceeds between the parties seems to be a [sic] drastic. Thus, it is incumbent upon this Court to determine the use and management of the thing, the dog.
The only substantive evidence that Ms. Knower could rely on to prove'her assertions that Abby was solely her dog was the adoption contract. However, she could not produce the contract at trial. Moreover, the initial emails with Sheila Ford, the adoption coordinator with MBTR, suggest that Abby was to be co-owned by Ms, Knower and Mr. Moore. For example in an excerpt from a December 2010 email, Ms. Knower wrote: “We are excited in anticipation of the Home Visit and the possible adoption of our new companion.” ... From the evidence adduced at trial, it was not until July 3, 2015, in, her email communications with Sheila Ford, almost five years later, that Ms. Knower begins to assert that she owns Abby solely. See P’s Exhibit 14a: “I am writing in an attempt to acquire, the signed paperwork during her adoption... 1 am trying to prove ownership of Gemma [Abby] and this could really assist me.”
Ms. Knower also entered into evidence the deposition of Sheila Ford to support her claim of full ownership, and her deposition testimony is problematic to say the least. Before Mr. Moore had notice that Ms. Knower planned to keep Abby and before the lawsuit had been filed, Ms. Knower contacted Sheila Ford to discuss the ownership of Abby. Ms. Knower knew that Mr. Moore planned to spend the Fourth of July in the French Quarter, yet offered to keep Abby for the weekend. Ms. Knower did not have a discussion with Mr. Moore about ownership, yet she contacted Sheila Ford, and also sent a picture of herself with the dog. These actions demonstrate to the Court that Ms. Knower planned to keep the dog, but wanted to shore up support for her claim of full ownership.
Emails between the Knower and Ms. Ford continue through September and October 2015 regarding Abby, and Ms. Ford’s possible testimony at trial. Ms. Knower continued to send Ms. Ford pictures of her family .members and Abby. The emails initially .reveal a very cordial relationship between Knower and Ford, especially with Ms. Ford commiserating with the defendant over her potential loss of Abby. See P’s Exhibit 14c: “I’m sure you are troubled over all this. I know I would be if someone was trying to take my baby.” It.is noteworthy that Ms. Knower did not submit any pictures of herself with Abby and Mr. Moore at any time during her email communication with Ms. Ford.
It is also noteworthy that communication between Ms. Knowér and Ms. Ford became tense in January 2016. Ms. Ford initially was no longer amenable to testifying at trial, she wanted to rely on her 1 ^notarized affidavit, and would only submit to a deposition. Until this point, the emails from Ms. Knower to Ms. Ford displayed a clear bias in Ms. Knower’s favor and suggest that Ms. Knower tried to influence Ms. Ford’s recollection. In her deposition, Ms. Ford could only testify that it was common practice for one party to adopt a pet because of legal issues that may arise. She does state that she remembers Amy’s name from Gemma’s [Abby] file. However, Mr. Moore does not dispute that he never tried to contact Sheila Ford; Amy Knower was the point of contact.
Ms. Knower could produce no other evidence to contradict the testimony of the Schillingers, Mr. Valack, or even Mr. Moore .that the parties co-owned the dog. Nor does the Court believe that the adoption contract would be dispostive. The Court finds the testimony of these witnesses more credible, than that of Sheila Ford.
After testimony concluded, the Court once more implored the parties to try and reach an amicable agreement regarding Abby. Mr. Moore testified that he wanted to keep Abby himself, but he would be agreeable to continue in the arrangement that seemed to be successful before Ms. Knower kept the dog in July 2015. Ms. Knower testified that she can no longer continue in the arrangement with the plaintiff, and wants Abby for herself.
Both parties testified at trial that before May 2015, even when the parties were involved in other relationships they continued to share Abby. Mr. Moore testified that he would be willing to exr change Abby at neutral locations, such as the veterinarian, or the Schillingers. He asserted that he would do whatever it took to minimize any interaction with Ms. Knower because of her discomfort with interacting with him. Ms. Knower is unwilling to compromise because she wants the parties to completely sever all ties with each other. When asked on cross-examination what was more important to her, retaining Abby or eliminating Mr. Moore completely from her life, Ms. Knower testified that a [sic] making a clean break from Mr. Moore was most important.
Based on the above reasons, the Court finds the plaintiff, Bruce Macon Moore, is the best person to determine the use and management of Abby. It is clear from the evidence and testimony at trial that. Abby was co-owned by .the parties. Ms. Knower had no right to unilaterally end an arrangement into which both parties willing entered and participated in for the better part of five years. Ms, Knower simply adduced insufficient proof to support her claim of full ownership.
THEREFORE, IT IS ORDERED, ADJUDGED AND DECREED that plaintiff is hereby awarded Abby, and may solely | ¡determine the use and management of the dog. Each party is responsible for his/her costs.

After a careful review of the record and an evaluation of the relevant jurisprudence, we find no manifest error, or abuse of discretion, in the trial court’s factual findings and conclusions of law. Further, we find that' the reasons for judgment effectively discuss the factual and procedural background of this case and provide an excellent analysis for the trial court’s finding that Abby was co-owned by the parties and that Mr. Moore is the best person to determine the use and management of Abby; thus, we hereby adopt as our own the written reasons for judgment signed by the trial court on April 18, 2016.

For these reasons, we hereby affirm the judgment of the trial court, which ruled that Mr. Moore has the right to determine the use and management of Abby.

AFFIRMED

MCKAY, C.J., DISSENTS FOR REASONS ASSIGNED BY J. JENKINS

JENKINS, J., DISSENTS WITH REASONS

JENKINS, J.,

DISSENTS WITH REASONS

hi agree with the majority’s finding that Mr. Moore and Ms. Knower are the co-owners of Abby. I respectfully dissent, however, from the majority’s finding that principles of “equity” can be applied to create a new remedy, when the rules of law governing this dispute are found in the Civil Code articles governing co-ownership and division of property, and when the application of equitable considerations would directly conflict with that positive law. Because I find that the parties’ sole remedy is partition, and because the First City Court lacks subject matter jurisdiction over partition actions, I would vacate the court’s April 18, 2016 judgment as void.

Under the Civil Code, dogs, like all domestic animals, are classified as “corporeal movable” property. State v. McCormick, 98-0718 (La.App. 4 Cir. 6/9/99), 737 So.2d 926, 931 citing La. Civ. Code art. 471; Barrios v. Safeway Ins. Co., 11-1028, p. 5 (La.App. 4 Cir. 3/21/12), 97 So.3d 1019, 1022; St. Julien v. Landry, 12-100, p. 9 (La.App. 3 Cir. 6/20/12), 94 So.3d 976, 982; Holland v. Teague, 43,496, p. 8 (La.App. 2 Cir. 9/17/08), 996 So.2d 325, 329. By statute, dogs are also classified as “personal property.” See La. R.S. 3:2773(A).

|2The majority adopts verbatim the trial court’s written reasons for judgment, which include the following: (1) “there is no basis in the law for the Court to decide the issue of custody of a dog”; (2) “the Court must treat Abby just as it would a co-owned piano or a co-owned piece of artwork”; (3) “[t]he-Court depends on the law of co-ownership to make its determination”; (4) “the Court finds that through action, word, and deed, the parties co-owned Abby”; (5) “[although allowable by law, selling Abby and splitting the proceeds between the' parties seems to be drastic”; and (6) “[tjhus, it is incumbent upon this Court to determine the use and management of the thing, the dog.” Thus, I first examine the Civil Code articles governing co-ownership and division of co-owned property.

Under the Civil Code, “[ojwnership of the same thing by two or more persons is ownership in indivisión.” La. Civ. Code art. 797. “The use and management of the thing held in indivisión is determined by agreement of all the co-owners.” La. Civ. Code art. 801. Thus, one co-owner cannot prevent another co-owner from making use of a thing held in indivisión. La. Civ. Code art. 802; Rev. Cmt. (c) (1990) (“[A] co-owner has neither a right to exclusive use nor a right to dispose of the thing without the consent of his co-owners

However, “[n]o one may be compelled to hold a thing in indivisión with another unless the contrary has been provided by law or juridical act.” La. Civ. Code art. 807. Thus, co-owners who cannot agree on the use and management of property have the right to demand partition of the thing held in indivisión. Id. If the co-owners cannot agree on the mode of partition, a co-owner may demand judicial partition, which results in either the physical division of the property into lots (partition “in kind”) or the sale of the thing, with the proceeds of the sale divided among the co-owners in proportion to their shares (partition by “licitation”). La. Civ. Code arts. 809, 810, 811.

|3In this case, Mr. Moore and Ms. Know-er are co-owners of Abby, and are unable to agree on her use and management. Their legal remedy under the Civil Code is a sale, with the proceeds to be distributed equally between them.' The trial court, however, decided that because this remedy was too “drastic,” the court would determine the use and management of Abby. In so doing, the trial court turned to La. Civ. Code art. 803, which permits a court to determine the “mode of use and management of a thing held in indivisión” when the parties cannot agree. Importantly, however, Article 803 expressly applies only when “partition is not available.” La. Civ. Code art. 803. See also Symeon C. Symeonide & Nicole Duarte Martin, The New Law of Co-Ownership: A Kommentar, 68 Tul. L. Rev. 69, 119 (1993) (“The only exception to the unanimity rule of [Article 801] is provided in Article 803.... This is a limited exception, however, and does not give the co-owners any assistance when partition is available. In such situations, if the co-owners are unable to reach agreement as to the use or management of the property, their sole remedy is partition”).

Under Louisiana law, partition is “not available” when it is excluded by an agreement by the co-owners (La. Civ. Code art. 807; La. R.S. 9:1702); by stipulation of a donor or testator (La. Civ. Code arts. 1300, 1301); or by operation of law (La. Civ. Code art. 808), None of these provisions apply in this case. Because partition is available, the trial court could not intervene under Article 803. I, therefore, find that the trial court was manifestly erroneous in deciding the use and management of Abby.

Even though the trial court “relie[d] heavily” on La. Civ. Code art. 803 as the basis for its judgment, the majority affirms the trial court’s decision by reference to La. Civ. Code art. 4, which states: “When no rule for a particular situation can be derived from legislation or custom, the court is bound to proceed Laccording to equity. To decide equitably, resort is made to justice, reason, and prevailing usages.”

In Louisiana, as in other civil law jurisdictions, legislation is superior to any other source of law. Duckworth v. Louisiana Farm Bureau Mutual Ins. Co., 11-2835, p. 12 (La. 11/2/12), 125 So.3d 1057, 1064. Thus, “[w]hen there is positive law on the subject matter at issue, equity cannot be evoked by the court.” International Carriers, Inc. v. Pearl River Navigation, Inc., 14-1189, p. 10 (La.App. 4 Cir. 4/15/15), 166 So.3d 1114, 1120. Furthermore, equitable considerations “cannot be permitted to prevail when in conflict with positive written law.” Fishbein v. State ex rel. Louisiana State Univ., 04-2482, p. 15 (La. 4/12/05), 898 So.2d 1260, 1270.

I find that the Civil Code articles governing co-ownership and partition of co-owned property constitute rules of law that govern this particular situation, thereby precluding the trial court from creating an equitable remedy under Article 4. I also find that the trial court’s decision to “award” Abby to Mr. Moore, and to give Mr. Moore the “sole” right to determine the use and management of Abby without Ms. Knower’s consent, is in direct conflict with the Civil Code’s articles governing the rights of co-owners, which also precludes the trial court from resorting to equity under Article 4.

I next address the First City Court’s subject matter jurisdiction.over this action. Subject matter jurisdiction means “the legal power and authority of a tribunal to adjudicate a particular matter involving the legal relations of the parties and to grant the relief to which the parties are entitled.” Daily Advertiser v. Trans-La., a Div. of Atmos Energy Corp., 612 So.2d 7, 16 (La. 1993) (citing La. Code Civ. P. arts. 1 and 2).

Under La. Code Civ. P. art. 4832, city courts are courts of limited jurisdiction. The subject matter jurisdiction of city courts is limited by the amount [fiin dispute and by the nature of the proceeding. La. Code Civ. P. art. 4841(A). In particular, “city courts shall not have jurisdiction in ... partition proceedings.” La. Code Civ. P. art. 4847(B).

As discussed above, because Mr. Moore is a co-owner of Abby, partition by licitation is his sole remedy. And because the jurisdiction of a city court does not extend to partition proceedings, I would find that the First City Court lacked subject matter jurisdiction over this action. “A judgment rendered by a court which has no jurisdiction over the subject matter of the action or proceeding is void.” La. Code Civ. P. art. 4. Accordingly, I would vacate the city court’s April 18, 2016 judgment as void.

      . La. C.C. art. 810 defines partition in kind, as follows: "The court shall decree partition in kind when the thing held in indivisión is susceptible to division into as many lots of nearly equal value as there are shares and the aggregate value of all lots is not significantly lower than the value of the property in the state of indivisión."

      . La. C.C. art. 811 defines partition by licitation, as follows: “When the thing held in indivisión is not susceptible to partition in kind, the court shall decree a partition by licitation or by private sale and the proceeds shall be distributed to the co-owners 'in proportion to their shares.”'

      . Unlike some states, Louisiana has not enacted specific legislation governing issues of "pet custody,” although one commentator has called for Louisiana to "take a pro-active approach by enacting legislation aimed at addressing legal custody of pets.” See Lacy L. Shuffield, Pet Parents—Fighting Tooth and Paw for Custody: Whether Louisiana Courts Should Recognize Companion Animals As More Than Property, 37 S.U.L. Rev. 101, 101-02 (2009).