text:
    QUALITY ENVIRONMENTAL PROCESSES, INC., Michael X. St. Martin, and Virginia Rayne St. Martin v. ENERGY DEVELOPMENT CORPORATION and Phillips Petroleum Company Mandalay Oil & Gas, L.L.C. v. Energy Development Corporation, Michael X. St. Martin, Virginia Rayne St. Martin, and Quality Environmental Processes, Inc.
    2016 CA 0171, 2016 CA 0172
    Court of Appeal of Louisiana, First Circuit.
    APRIL 12, 2017
    See also 144 So.3d 1011 and 2017 WL 1378263.

      A.J. Gray, III, Lake Charles, Louisiana, Attorney for Appellants Plaintiffs—Michael X. St. Martin, Virginia Rayne St. Martin, and Quality Environmental Processes, Inc.
    Michael X. St. Martin, Christopher J. St. Martin, Houma, Louisiana, Attorneys for Appellant Plaintiff—Quality Environmental Processes, Inc.
    Jamie S. Manuel, Baton Rouge, Louisiana and H. Alston Johnson, III, Baton Rouge, Louisiana, Attorneys for Appellee Defendant—I.P. Petroleum Company, Inc.
    BEFORE: PETTIGREW, McDonald, and calloway, jj.

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

   CALLOWAY, J.

|aThe protracted litigation in this case involves mineral rights and royalties associated. with a production well, IP Pet. PPCO No. 1 well, located on a certain tract of land owned by the plaintiffs in Terre-bonne Parish (hereinafter “St. Martin property”). In this appeal, the plaintiffs, Quality Environmental Processes, Inc. (hereinafter “Quality”), Michael X. St. Martin, and Virginia Rayne St. Martin, appeal a trial court judgment granting partial summary judgment in favor of the defendant, IP Petroleum Company, Inc. (hereinafter “IP Petroleum”), and dismissing with prejudice the claims of the plaintiffs for mineral royalties attributable to production on the IP Pet. PPCO No. 1 well prior to April 1, 2001. In this appeal, we affirm the partial summary judgment in favor of IP Petroleum.

■ In a related appeal, also rendered this date, 2016 CA 0280,- IP Petroleum and International1 Paper Company challenge a trial court judgment on remand which awarded the plaintiffs: (A) $107,612.67 in unpaid mineral royalties; (B) $216,225.34 in statutory penalties pursuant to La. R.S. 31:139; (C)‘ $230,563.83 in .interest from October 31, 2Ó02, on the unpaid royalties and penalties; (D) $138,350.46 representing 25% statutory attorney fees on unpaid royalties, penalties, and interest; and (E) $691,752.30 in damages for intentional tort. The plaintiffs assert their own appeal of the judgment on remand which: (F) dismissed their claim for $817,464,29 in mineral royalties.-

FACTS AND PROCEDURAL HISTORY

The background facts and procedural history of this case are more detailed and fully set forth in the Louisiana Supreme Court’s opinion in Quality Environmental Processes, Inc. v. I.P. Petroleum Co., Inc., 2013-1582 (La. 5/7/14), 144 So.3d 1011 (rehearing denied July 1, 2014) (hereinafter “Quality I"). For additional background facts, see Quality Environmental Processes, Inc. v. I.P. Petroleum Co., Inc., 2012-0776, 2013 WL 690535 (La. App. 1 Cm. Feb. 25, 2013). For efficiency, we discuss only the facts and procedural history relevant to the current appeal.

On June 29, 2000, Quality and the St. Martins filed a petition for declaratory judgment and damages against Energy Development Corporation (hereinafter “EDC”), Phillips Petroleum Corporation (hereinafter “Phillips”), Mobil Exploration & Producing U.S., Inc. (hereinafter^ “Mobil”), and IP Petroleum. The plaintiffs alleged they were entitled to receive from the defendants all mineral royalties on production from the IP Pet. PPCO No. 1 well attributable to the St. Martin property from June 29, 1997, through the date the well was plugged and abandoned, The petition sought: (1) a declaratory judgment that the 1966 mineral deed did not create a mineral servitude; (2) an accounting of all pre-1992 royalties from Mobil, Phillips, and IP Petroleum; (3) an accounting of all post-1992 royalties from IP Petroleum and Phillips; (4) payment by Mobil and Phillips to plaintiffs “as damages” double the amount of royalties due and unpaid; (5) cancellation of described mineral leases; and (6) unspecified damages for non-payment of royalties. The trial court granted the plaintiffs leave to amend their suit to add Noble Energy, Inc. (hereinafter “Noble Energy”), as the successor to EDC, as a defendant.

At the time the instant suit was filed, some $817,464.29 in royalties had been paid by IP Petroleum to Noble Energy and Phillips between June 29, 1997, and April 1, 2001, while the remaining $106,977.66 in royalties (derived from production between April 1, 2001, and September 1, 2001) had been placed in escrow. See Quality I, 144 So.3d at 1018. The instant suit bears trial court docket number 129,412 and was assigned to Division D of the 32nd JDC in Terrebonne Parish, presided over by Judge David W. Areen-eaux. This suit is referred to by the parties as the “Blue Line I” litigation. See Quality I, 144 So.3d at 1018.

Ultimately, Mobil was dismissed from the instant suit. The plaintiffs settled their claims with Phillips in 2001 and with Noble Energy in 2005, who were also dismissed from the suit. See Quality I, 144 So.3d at 1018. In the 2001 and 2005 settlement agreements with Phillips and Noble Energy, the plaintiffs obtained all of the mineral interests in the St. Martin property that had belonged to Phillips and Noble Energy respectively, i.e., the “after-acquired mineral rights.” See Quality I, 144 So.3d at 1018. IP Petroleum is the sole remaining defendant in this suit.

In 2006, the plaintiffs attempted to amend their petition to add as a defendant International Paper Company (the parent company of IP Petroleum) and to assert a claim for tortious conspiracy against the defendants, as well as the attorneys for IP Petroleum, John Y. Pearce and the law firm of Montgomery, Barnett, Brown, Read, Hammond & Mintz, L.L.C. ¿⅛⅛ Quality I, 144 So.3d at 1018. By judgment rendered February 27, 2007, the trial court denied the plaintiffs’ motion to amend their pleadings to add the above-described defendants. See Quality I, 144 So.3d at 1018.

Thereafter, Quality and the St. Martins filed a second suit against IP Petroleum and International Paper, asserting their claim for unpaid royalties from June 29, 1997, through the date the well was plugged and abandoned. The plaintiffs also sought damages under the Louisiana Unfair Trade Practices Act (hereinafter “LUTPA”) against IP Petroleum, International Paper, and IP Petroleum’s attorneys, Mr. Pearce and the law firm of Montgomery Barnett. See Quality I, 144 So.3d at 1018. The second suit bears trial court docket number 149,973 and was assigned to Division B of the 32nd JDC in Terrebonne Parish, presided over" by Judge John R. Walker. The second suit is referred to by the parties as the “Blue Line II” litigation. See Quality I, 144 So.3d at 1018. The Blue Line II suit is the subject of the related appeal pending- before this court, 2016 CA 0230.

In August 2007, the .plaintiffs filed a motion for partial summary judgment, seeking judgment against IP Petroleum for royalties due since June 29, 1997, IP Petroleum opposed the motion. Following a hearing, the trial court denied the plaintiffs’ motion.

. On November 13, 2008, IP Petroleum filed a motion for partial summary judgment, seeking dismissal of the plaintiffs’ claims. Following a hearing, the trial court denied IP Petroleum’s motion in a judgment signed May 8,2009.

On August 29, 2014, IP Petroleum filed a motion for partial summary judgment, seeking dismissal of “all of the claims of the plaintiffs herein to any and all mineral royalties from production prior to April 1, 2001 from the IP Pet. PPCO No. 1 well,” that is, the $817,464.29 in previously-paid royalties by IP Petroleum to Noble Energy and Phillips between the stipulated dates of June 29, 1997, and April 1, 2001. Royalties derived from production between April 1, 2001, and September 1, 2001, in the amount of $106,977.66 and placed in escrow, were not at issue in IP Petroleum’s motion. IP Petroleum prayed for partial summary judgment in its favor and “that plaintiffs’ claims for the sum of $817,464.29 in royalties paid to Phillips and [Noble ^Energy] prior to April 1, 2001 be dismissed, with prejudice and at their costs.” The plaintiffs opposed the motion.

On November 10, .2014, the plaintiffs filed a motion to dismiss IP Petroleum’s motion for partial summary judgment on the grounds that it was filed untimely, based on a previously issued pre-trial order. IP Petroleum opposed the plaintiffs’ motion. Additionally; on November 13, 2014, the plaintiffs filed a' motion requesting ex parte dismissal of the' entire matter based on abandonment. See La. C.C.P. art. 561. The next day, the trial court entered an ex parte order dismissing the case. IP Petroleum subsequently filed a motion to set aside the order of dismissal on November 19, 2014.

Following a hearing, the trial court granted IP Petroleum’s motion to set aside the order of dismissal, denied the plaintiffs’ motion to dismiss IP Petroleum’s motion for partial summary judgment filed August 29, 2014, and took IP Petroleum’s motion for partial summary judgment under advisement. On April 8, 2015, the trial court signed a judgment granting IP Petroleum’s motion for partial summary judgment and dismissing all claims of the plaintiffs against IP Petroleum for previously-paid mineral royalties attributable to production prior to April 1, 2001, with prejudice. The trial court assessed all costs associated with IP Petroleum’s motion for partial summary judgment against the plaintiffs. The trial court also issued written reasons for judgment. On August 28, 2015, the trial court, at the request of IP Petroleum, issued an order certifying the April 8, 2015 judgment rendered in its favor as a final judgment in accordance with La. C.C.P. art. 1915.

Quality and the St. Martins now suspen-sively appeal the April 8, 2015 certified final judgment of the trial court, designating portions of record on appeal. See La. C.C.P. art. 2128; see also Uniform Rules, Courts of Appeal, Rule 2—1.17.

APPELLATE JURISDICTION

Appellate courts have a duty to examine subject matter jurisdiction sua sponte, even when the parties do not raise the issue. Texas Gas Exploration Corp. v. Lafourche Realty Co., Inc., 2011-0520 (La. App. 1 Cir. 11/9/11), 79 So.3d 1054, 1059, writ denied, 2012-0360 (La. 4/9/12), 85 So.3d 698. Our appellate jurisdiction extends to “final judgments.” See La. C.C.P. art. 2083. A judgment must be precise, definite, and certain. Laird v. St. Tammany Parish Safe Harbor, 2002-0045 (La. App. 1 Cir. 12/20/02), 836 So.2d 364, 365. Moreover, a final appealable judgment must name the party in favor of whom the ruling is ordered, the party against whom the ruling is ordered, and the relief that is granted or denied. See Carter v. Williamson Eye Center, 2001-2016 (La.App. 1 Cir. 11/27/02), 837 So.2d 43, 44. These determinations should be evident from the language of the judgment without reference to other documents in the record. Laird, 836 So.2d at 366. In relevant part, a final appealable judgment “must contain appropriate decretal language disposing of or dismissing claims in the case.” State in Interest of J.C., 2016-0138 (La.App. 1 Cir. 6/3/16), 196 So.3d 102, 107.

As an appellate court, we are obligated to recognize any lack of jurisdiction if it exists. This court’s appellate jurisdiction extends to “final judgments,” which are those that determine the merits in whole or in part. La. C.C.P. arts. 1841 and 2083; see Van ex rel. White v. Davis, 2000-0206 (La.App. 1 Cir. 2/16/01), 808 So.2d 478, 483. However, a judgment that only partially determines the merits of an action is a partial final judgment and, as such, is immediately appealable only if authorized by La. C.C.P. art. 1915. Rhodes v. Lewis, 2001-1989 (La. 5/14/02), 817 So.2d 64, 66.

Subpart A of La. C.C.P. art. 1915 designates certain categories of partial judgments as final judgments subject to immediate appeal without the necessity of any designation of finality by the trial court, while Subpart B of La. C.C.P. art. 1915 provides that when a court renders a partial judgment, partial motion for summary judgment, or exception in part, it may designate the judgment as final when there is no just reason for delay. Louisiana Code of Civil Procedure article 1915, in pertinent part, provides:

A. A final judgment may be rendered and signed by the court, even though it may not grant the successful party or parties all of the relief prayed for, or may not adjudicate all of the issues in the case, when the court:
(1) Dismisses the suit as to less than all of the parties, defendants, third party plaintiffs, third party defendants, or in-tervenors.
(2) Grants a motion for judgment on the pleadings, as provided by Articles 965, 968, and 969.
(3) Grants a motion for summary judgment, as provided by Articles 966 through 969, but not including a summary judgment granted pursuant to Article 966(E).
(4) Signs a judgment on either the principal or incidental demand, when the two have been tried separately, as provided by Article 1038.
I ?(5) Signs a judgment on the issue of liability when that issue has been tried separately by the court, or when, in a jury trial, the issue of liability has been tried before a jury and the issue of damages is to be tried before a different jury.
(6) Imposes sanctions or disciplinary action pursuant to Article 191, 863, or 864 or Code of Evidence Article 510(G).
B. (1) When a court renders a partial judgment or partial summary judgment or sustains an exception in part, as to one or more but less than all of the claims, demands,, issues, or theories against a party, whether in an original demand, reconventional demand, cross-claim, third-party claim,- or intervention, the judgment shall not constitute a final judgment unless it is designated as a final judgment by the court after an express determination that there is no just reason for delay.
(2) In the absence of such a determination and designation, any such order or decision shall not constitute a final judgment for the purpose of an immediate appeal and may be revised at any time prior to rendition of the judgment adjudicating all the claims and the rights and liabilities of all the parties.

The April 8, 2015 judgment at issue herein, which, in part, grants summary judgment in favor of I.P. Petroleum, does not fall within any of the categories identified in Subpart A of La. C.C.P. art. 1915. The judgment does not: (1) dismiss the suit as to any party; (2) grant a motion for judgment on the pleadings; (3) pertain to an incidental demand that was tried separately; (4) adjudicate the issue of liability; or (5) impose sanctions or disciplinary action. Moreover, while the judgment does grant a motion for partial summary judgment, it constitutes a summary judgment under the provisions of La. C.C.P. art. 966(E), which authorizes the grant of a summary judgment “dispositive of a particular issue, theory of recovery, cause of action, or defense, in favor of one or more parties, even though the granting of the summary judgment does not dispose of the entire case as to that party or parties.” However, summary judgments granted pursuant to La. C.C.P. art. 966(E) are specifically excluded from the types of partial summary judgments that are immediately appealable under La. C.C.P. art. 1915(A) without the need for a designation of finality. See La. C.C.P. art. 1915(A)(3). Thus, because the judgment is not a final judgment for purposes of an immediate appeal under the provisions of La. C.C.P. art 1915(A), this court’s jurisdiction depends upon whether the judgment was properly designated as a final judgment pursuant to La. C.C.P. art. 1915(B)(1). See La. C.C.P. arts. 1911(B) and 2083.

Article 1915(B) authorizes the appeal of a partial summary judgment as to “one or more but less than all of the claims, demands, issues, or theories” presented where the judgment is designated as a final judgment by the trial court after a determination that there is no just reason for delay. Absent a designation of a judgment as final under La. C.C.P. art. 1915(B)(1), a partial [ «summary judgment may be revised at any time prior to the rendition of the judgment adjudicating all the claims and the rights and liabilities of all the parties. La. C.C.P. art. 1915(B)(2); MAPP Const., LLC v. Chenevert Architects, 2014-0653, 2014 WL 7332109, at *2 (La. App. 1 Cir. Dec. 23, 2014), writ denied, 2015-0164 (La. 4/17/15), 168 So.3d 397.

However, a trial court’s certification of a partial judgment as final does not make the judgment immediately ap-pealable. Marquez v. Jack Ussery Const. 2006-1852 (La.App. 1 Cir. 6/8/07), 964 So.2d 1045, 1048, writ denied, 2007-1404 (La. 10/12/07), 965 So.2d 400. When reviewing an order designating a judgment as final for appeal purposes, when accompanied by explicit reasons, the reviewing court must determine whether the trial court abused its discretion in certifying the judgment. R.J. Messinger, Inc. v. Rosenblum, 2004-1664 (La. 3/2/05), 894 So.2d 1113, 1122. Pursuant to Messinger, the following list of non-exclusive factors are to be considered in determining whether a partial judgment should be certified as final:

(1) The relationship between the adjudicated and unadjudicated claims;
(2) The possibility that the need for review might or might not be mooted by future developments in the trial court;
(3) The possibility that the reviewing court might be obliged to consider the same issue a second time; and
(4) Miscellaneous factors such as delay, economic and solvency considerations, shortening the time of trial, frivolity of competing claims, expense, and the like.

Messinger; 894 So.2d at 1122. However, in determining whether a partial judgment is a final one for the purpose of an immediate appeal, a court must always keep in mind the historic policies against piecemeal appeals. Davis, 808 So.2d at 483. Article 1915(B) attempts to strike a balance between the undesirability of piecemeal appeals and the need for making review at a time when it best serves the needs of the parties. Thus, in considering whether a judgment is properly designated as a final one pursuant to Article 1915(B), a trial court must take into account judicial administrative interests as well as the equities involved. Messinger, 894 So.2d at 1122.

On August' 28, 2015, the trial court, at the request of I.P. Petroleum, issued an order certifying the April 8, 2015 judgment rendered in its favor as a final judgment in accordance with La. C.C.P. art. 1915. The trial court made an express determination “that there is no just reason for delay for appellate review of its April 8, 2015 judgment” and designated the judgment]^ final in accordance with Article 1915(B)(1). In consideration of the Mes-singer factors, the trial court accompanied its certification with the following reasons:

(1) with the granting of the April 8, 2015 of a summary judgment of dismissal with prejudice of the plaintiffs’ claim to mineral royalties on mineral production prior to April 1, 2001 and with the decision by the Court that the claim to the $107,000 in escrowed royalties on production after April 1, 2001 should be heard by another division of this Court, there is no remaining unadjúdieated issue in this case; (2) the need for appellate review of the dismissal with prejudice of the plaintiffs’ claim to mineral royalties on production prior to April 1, 2001 will not be mooted by any future developments in this Court; (3) the reviewing court will not be obliged to consider this same issue a second time; and (4) there is no just reason for delay in appellate review of the April 8, 2015 judgment, because no further proceedings are necessary in this Court.

After reviewing the trial court’s explicit reasons, we find that the trial court did not abuse its discretion in certifying the, judgr ment as final in the order designating the April 8, 2015 judgment as final for appeal purposes under La. C.C.P. art. 1915(B)(1). Therefore, our jurisdiction extends to this appeal.

ASSIGNMENTS OF ERROR

The plaintiffs assign the following errors on appeal:

1. The trial court erred in vacating the formal order of dismissal previously entered for abandonment of this action pursuant to La. [C.C.P.] art. 561;
2. The trial court erred in not dismissing, as untimely, [IP Petroleum’s] motion for partial summary judgment, the granting of which resulted in entry of the judgment appealed from in this appeal; and
3. The trial court erred in granting the motion for partial summary judgment filed by [IP Petroleum] on August 29, 2014, which resulted, in the [¡judgment dated April 8, 2015 from which this appeal is taken.

LAW AND DISCUSSION

Assignments of Error 1 and 2

To facilitate our discussion of the errors assigned by the plaintiffs on appeal, we consider the first two errors simultaneously, as the arguments regarding these errors are interrelated. First, the plaintiffs assign error to the trial court vacating its formal order of dismissal entered for abandonment pursuant to La, C.C.P. art. 561. Second, the plaintiffs assign error to the trial court’s denial of their motion to dismiss the motion for partial summary judgment filed by IP|in Petroleum on August 29, 2014 as untimely, based on the deadlines for filing such motions set forth in a pre-trial order previously issued in this matter.

Louisiana Code of Civil Procedure article 561 provides, in pertinent part:

A. (1) An action.. .is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of three years...
B. Any formal discovery as authorized by this Code and served on all parties whether or not filed of record, including the taking of a deposition with or without formal notice, shall be deemed to be a step in the prosecution or defense of an action.

Article 561 imposes three requirements to avoid abandonment: (1) a party must take some “step” in the prosecution or defense of the action; (2) the step must be taken in the proceeding and, with the exception of formal discovery, must appear in the record of the suit; and (3) the step must be taken within three years of the last step taken by either party; sufficient action by either plaintiff or defendant will be deemed a step. Louisiana Dept. of Transp. and Development v. Oilfield Heavy Haulers, L.L.C., 2011-0912 (La. 12/6/11), 79 So.3d 978, 981. Article 561 is operative without formal order, but, on ex parte motion of any party or other interested person by affidavit which provides that no step has been timely taken in the prosecution or defense of the action, the trial court shall enter a formal order of dismissal as of the date of its abandonment. La. C.C.P. art. 561(A)(2)(3).

A “step” is a formal action before the court intended to hasten the suit towards judgment or is the taking of formal discovery. A step by one party prevents abandonment as to all of the parties, even though they are not solidarity liable. DOTD v. Oilfield Heavy Haulers, 79 So.3d at 981. Our jurisprudence has uniformly held Article 561 is to be liberally construed in favor of maintaining a plaintiffs suit. Because dismissal is the harshest of remedies, any reasonable doubt about abandonment should be resolved in favor of allowing the prosecution of the claim and against dismissal for abandonment. DOTD v. Oilfield Heavy Haulers, 79 So.3d at 981-82. The purpose of La. C.C.P. art. 561 is to dismiss actions which have been abandoned, and the article provides for dismissal of those cases in which a plaintiffs inaction during a legislatively ordained period has clearly demonstrated his abandonment of the case. The article was not intended, however, to dismiss those cases in which a plaintiff has clearly demonstrated before theln court during the prescribed period that he does not intend to abandon the action. Hutchison v. Seariver Maritime, Inc., 2009-0410 (La.App. 1 Cir. 9/11/09), 22 So.3d 989, 993, writ denied, 2009-2216 (La. 12/18/09), 23 So.3d 946. Given that dismissal is the harshest of remedies, the general rule is that any reasonable doubt about abandonment should be resolved in favor of allowing the prosecution of the claim and against dismissal for abandonment. Hutchison, 22 So.3d at 993. Whether or not a step in the prosecution of a case has been taken in the trial court for a period of three years is a question of fact subject to a manifest error analysis on appeal. On the other hand, whether a particular act, if proven, precludes abandonment is a question of law that we review by simply determining whether the trial court’s decision was legally correct. Hutchison, 22 So.3d at 992.

Pre-trial orders are provided for in La. C.C.P. art. 1551, which gives the trial court wide discretion to provide for the pre-trial order and ensuring that it is enforced. The law provides that an orderly disposition of each case and the avoidance of surprise are inherent in the theory of pre-trial procedure and are sufficient reasons for allowing the trial judge to require adherence to the pre-trial order in the conduct of an action. Although the trial court is vested with much discretion to amend its pre-trial order, this discretion must be exercised to prevent substantial injustice to the parties who have relied on the pre-trial rulings and structured the preparation and presentation of their cases accordingly. Only upon a showing of an abuse of that discretion should the appellate court intervene. Southern Casing of Louisiana, Inc. v. Houma Avionics, Inc., 2000-1930 (La.App. 1 Cir. 9/28/01), 809 So.2d 1040, 1055.

This suit was filed on June 29, 2000, more than fifteen years ago. The trial court issued a pre-trial order on March 4, 2005, fixing the trial date in this matter for October 3, 2005. The pre-trial order included numerous deadlines, such as the requirement that any motion for summary judgment must be filed, set for hearing, and served no later than forty-five calendar days prior to the October 3, 2005 trial date, i.e., August 19, 2005. The pretrial order also required that interrogatories, requests for admission, and requests for production and/or inspection, shall not be permitted unless the same is served on any other party within forty-five calendar days of the March 4, 2005 signing of the pre-trial order, i.e., April 18, 2005.

Based on the record, the trial set for October 3, 2005, for which the pre-trial order signed March 4, 2005 was issued, never occurred. Thereafter, in August 2007, the plaintiffs filed a motion for partial summary judgment, seeking judgment against IP Petroleum for royalties due |12since June 29, 1997, which IP Petroleum opposed. Following a hearing, the trial court denied the plaintiffs’ motion. Then on November 13, 2008, IP Petroleum filed a motion for partial summary judgment, seeking dismissal of the plaintiffs’ claims. Following a hearing on March 27, 2009, the trial court granted the parties until April 9, 2009, to submit additional memo-randa, after which the trial court took the matter under advisement. On April 13, 2009, the plaintiffs filed a memorandum in opposition to IP Petroleum’s motion for partial summary judgment. The trial court denied IP Petroleum’s motion for partial Summary judgment in a judgment signed May 8, 2009. No further action appears in the record of this case until August 29, 2014, when IP Petroleum filed another motion for partial summary judgment.

The plaintiffs argue that this action was abandoned on April 13, 2012, three years after the plaintiffs filed them memorandum m . opposition to IP Petroleum’s motion for summary judgment, on April 13, 2009. IP Petroleum argues, however, that on April 5, 2012, IP Petroleum directed two interrogatories and one request for production of documents to the plaintiffs, which is a formal discovery request. We note the plaintiffs conceded in their motion for formal order of dismissal and in the supporting memorandum that IP Petroleum directed a formal discovery request to them on April 5, 2012.

Pursuant to La. C.C.P. art. 561(B), “[ajny formal discovery as authorized by this Code and served on all parties whether or not filed of record” is a step in the prosecution or defense of an action. When IP Petroleum propounded a formal discovery request on April 5, 2012 to the plaintiffs, IP Petroleum interrupted the running of the abandonment period, which began on April 13, 2009 for purposes of this discussion, when the plaintiffs filed a memorandum in opposition in the record, and caused it to run anew. Therefore, the trial court properly vacated its previously entered order of dismissal based on abandonment. The plaintiffs’ first assignment of error is without merit.

Furthermore, because a trial never occurred on the scheduled trial date of October 3, 2005, the deadlines for discovery and the filing of motions for summary judgment contained | ^therein essentially became “moot” pending the setting of another trial date and/or issuance of another pre-trial order by the trial court. Therefore, IP Petroleum’s filing of a motion for partial .summary judgment on August 29, 2014 was not untimely based on the deadlines set forth in the pre-trial order, signed March 4, 2005. The trial court committed no error in denying the plaintiffs’ motion to dismiss. The plaintiffs’ second assignment of error is without merit.

Assignment of Error 3

After adequate discovery, a motion for summary judgment is properly granted if the pleadings, depositions, answers to interrogatories, and admissions, together with affidavits, if any, admitted for purposes of the motion, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La; C.C.P. art. 966(B)(2) and (C)(1) (prior to amendment by 2016 La. Acts, No. 422, effective January 1,2016). The summary judgment procedure is expressly favored in the law and is designed to secure the just, speedy, and inexpensive determination of non-domestic civil actions. See La. C.C.P. art. 966(A)(2).

The mover bears the burden of proving' that he is entitled to summary judgment. However, if the mover will not bear the burden of proof at trial on the subject matter of the motion, he need only demonstrate the absence of factual support for one or more essential elements of his opponent’s claim, action, or defense. La. C.C.P. art. 966(C)(2) (prior to amendment by 2016 La. , Acts, No. 422, effective January 1, .2016). If the moving party points out that there, is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense, then the nonmoving party must produce factual support sufficient to satisfy his evidentiary burden at trial. La. C.C.P. art. 966(C)(2) (prior to amendment by 2016 La. Acts, No. 422, effective January 1, 2016). If the nonmoving party fails to make this requisite showing, there is no genuine issue of material fact, and summary judgment should be granted. La. C.C.P. art. 966(C)(2) (prior to amendment by 2015 La. Acts, No. 422, effective |14 January 1, 2016). If, however, the mover fails in his burden to show an absence of factual support for one or more of the elements of the adverse party’s claim, the burden never shifts to the adverse party, and the'mover is not entitled to summary judgment. LeBlanc v, Bouchereau Oil Co., Inc., 2008-2064 (La.App. 1 Cir. 6/8/09), 15 So.3d 152, 155, writ denied, 2009-1624 (La. 10/16/09), 19 So.3d 481.

In ruling on a motion for summary judgment, the trial court’s role is not to evaluate the weight of the evidence or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable fact. Hines v, Garrett, 2004-0806 (La. 6/25/04), 876 So.2d 764, 765 (per curiam). A fact is material if it potentially ensures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the legal dispute. A genuine issue is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate. Hines, 876 So.2d at 765-66. Factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing the motion, and all doubt must be resolved in the opponent’s favor. Willis v. Medders, 2000-2507 (La. 12/8/00), 775 So.2d 1049, 1050 (per curiam).

In determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria that govern the trial court’s determination of whether summary judgment is appropriate. East Tangipahoa Development Company, LLC v. Bedico Junction, LLC, 2008-1262 (La.App. 1 Cir. 12/23/08), 5 So.3d 238, 243-44, writ denied, 2009-0166 (La. 3/27/09), 5 So.3d 146. Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to this case. Pumphrey v. Harris, 2012-0405 (La.App. 1 Cir. 11/2/12), 111 So.3d 86, 89.

A summary judgment may grant less than all of the relief prayed for by the respective parties. However, a partial summary judgment must grant at least some of the relief prayed for. See La. C.C.P. art. 966(A); La. C.C.P. art. 1915(A)(3); State v. Exxon Corp., 95-2370 (La.App. 1 Cir. 6/28/96), 676 So.2d 788, 789. A motion for partial summary judgment may not be used merely to decide an issue or strike down a theory of the case, without granting or denying any part of the relief claimed by any party. See State v. Exxon Corp., 676 So.2d at 789; see also Coleman v. Robicheaux Air Boats, Inc., 94-2139 (La.App. 1 Cir. 6/23/95), 658 So.2d 807, 810. The relief prayed for means any relief sought by the defendant as a defendant, more often] 1fi dismissal of the plaintiffs suit in whole or in part, with prejudice. Beard v. Assumption Parish Police Jury, 413 So.2d 923, 925 (La. App. 1 Cir.), writ denied, 420 So.2d 444 (La. 1982).

On August 9, 2014, IP Petroleum filed a motion for partial summary judgment, a list of essential legal elements and undisputed material facts, and a memorandum. IP Petroleum argued that “all of the claims of the plaintiffs herein to any and all mineral royalties from production prior to April 1, 2001 from the IP Pet. PPCO No. 1 well” that is, the $817,464.29 in previously-paid mineral royalties by IP Petroleum to Noble Energy and Phillips between June 29, 1997, and April 1, 2001, should be dismissed based on the May 7, 2014 ruling of the supreme court in Quality I (appealed in the Blue Line II litigation). In that decision, the supreme court, affirming a previous ruling of this court, ruled that the plaintiffs did not acquire any mineral rights in the St. Martin property in connection with the 1992 purchase of the property by the St. Martins. See Quality I, 144 So.3d at 1026-27. However, the supreme court affirmed this court’s remand of the case “for consideration of any royalty payment issues stemming from the after-acquired rights, if any, arising out of the 2001 and 2005 settlements.” See Quality I, 144 So.3d at 1027. IP Petroleum argued that the 2001 and 2005 settlement agreements did not give the plaintiffs any after-acquired rights to the royalties attributable to the property prior to April 1, 2001, and as such, there were no disputed issues of material fact regarding royalties prior to April 1, 2001. IP Petroleum prayed for partial summary judgment in its favor and “that plaintiffs’ claims for the sum of $817,464.2[9] in royalties paid to Phillips and [Noble Energy] prior to April 1, 2001 be dismissed, with prejudice and at their costs.” In support of its motion for partial summary judgment, IP Petroleum submitted the following exhibits:

(A) copy of the Louisiana Supreme Court’s opinion in Quality I;
(B) copy of the April 1, 2001 settlement agreement between the plaintiffs and Phillips;
(C) copy of the December 13, 2005 confidential settlement agreement between the plaintiffs and Noble Energy;
(D) copy of the November 30, 2007 judgment of the trial court, denying the plaintiffs’ motion for summary judgment filed August 6, 2007;
(E) copy of the trial court’s December 10, 2007 reasons for judgment, issued in conjunction with the November 30, 2007 judgment; and
lifl(F) copy of the December 19, 2005 mineral deed from Noble Energy to the plaintiffs. (Exhibits A-F, loose papers bundle).

The plaintiffs opposed the motion for partial summary judgment. In support of their opposition, the plaintiffs attached Exhibit 1, the original affidavit of A.J. Gray, III, dated November 11, 2014, and particular correspondence attached thereto.

Following a hearing, the trial court ruled in favor of IP Petroleum and against the plaintiffs. In its written reasons, the trial court stated:

After a thorough review of the evidence offered at the hearing on February 13, 2015, and after careful consideration of the arguments of counsel, the court has found that no genuine issue of material fact remains unresolved in this case with regard to the plaintiffs’ claims for royalties prior to April 1, 2001. The settlement documents referred to above do not give the plaintiffs any “after-acquired rights” to the royalties attributable to the property in question before that date. As a result, the court has granted IP Petroleum’s motion for partial summary judgment and has dismissed with prejudice the plaintiffs’ claims to those royalties.
The first settlement mentioned by the Supreme Court in its May 7, 2014, opinion, is evidenced in part by a “Settlement Agreement” by and between the plaintiffs and Phillips. Pursuant to this agreement, Phillips agreed to “convey or assign” to the plaintiffs, among other things, all “mineral interests or mineral rights” in and to the land which is the subject of the present litigation. This conveyance or assignment was accomplished by an act of Assignment, Transfer and Conveyance signed by all the parties with an effective time of 7:00 a.m. on April 1, 2001. There is nothing in the Settlement Agreement or the Assignment, Transfer and Conveyance to reasonably suggest that Phillips transferred to the plaintiffs any right, interest, or claim to royalties attributable to production from the property before 7:00 a.m. on April 1, 2001. To the contrary, paragraph 2(d) of the Assignment, Transfer and Conveyance specifically excludes any assignment, transfer, or conveyance of the following described property to the plaintiffs, and specifically reserves the same to Phillips, as assign- or:
Any and all rights and claims arising, accruing or existing in Assignor prior to the Effective Time including, but not limited to, any and all contract rights, claims, penalties, receivables, revenues, recoupment rights, recovery rights (including gas imbalances), accounting adjustments, mispayment, erroneous payments or other claims of any nature relating to any period pri- or to the Effective Time.... ” (Ex. B, p. 3 of Assignment)
Under this provision of the Assignment, Transfer and Conveyance, it is patently obvious that the plaintiffs did not obtain pursuant to their settlement with Phillips, any interest in the royalties paid or payable to Phillips and attributable to production from the land at issue at any time prior to April 1, 2001.
The second settlement mentioned by the Supreme Court in its May 7, 2014, opinion, is evidenced by a “Confidential Settlement Agreement” by and between the plaintiffs and others on the one hand, and Noble Energy, Inc., successor to EDC, on the other. Each of the plaintiffs signed this agreement on December |1713, 2005, and Noble Energy, Inc. signed the same on December 19, 2005.
In pertinent part, this agreement obligated Noble Energy, Inc., to execute in favor of the plaintiffs a mineral conveyance document substantially in the form attached to the agreement as Exhibit C. By “Mineral Deed” signed by each of the parties on the same day each of them signed the Confidential Settlement Agreement, Noble Energy, Inc., conveyed to the plaintiffs “all of Noble’s right, title and interest in all mineral rights of every kind and character” in and under the land at issue. Neither the Confidential Settlement Agreement nor the Mineral Deed state any effective date or otherwise refer to any particular period of time to which they apply with regard to mineral production and royalty payment due as a result thereof. The Mineral Deed does not specifically refer to any rights of any of the parties to royalty payments received by EDC or Noble Energy, Inc., before the parties executed the Mineral Deed. On its face, the Mineral Deed was intended to have prospective effect only.
The court’s conclusion in this regard is bolstered by the terms and conditions of the Confidential Settlement Agreement. By its terms, this agreement was intended to “compromise and settle” the claims between the parties as described in the agreement, or as described in the instant lawsuit, and including “all claims which could have been brought, relating in any way to the ownership of minerals underlying” the property at issue in this case. Because no temporal limit is expressed in the agreement, the only reasonable conclusion is that all claims between the parties relative to mineral royalty payments as of the date of the execution of the agreement were included within the terms of the settlement and that any claims by the plaintiffs to mineral royalty payments thereafter would be rooted in the Mineral Deed executed contemporaneously therewith.
Based on the foregoing, the court is of the opinion that the plaintiffs have no claim to mineral royalties attributable to production from the property in question prior to April 1, 2001, arising out of any title or rights acquired by them in the 2001 and 2005 settlements described above. There is no unresolved genuine issue of material fact that could dictate a contrary finding.

Following our de novo review of the record, we agree with the findings of the trial court. Our review of the evidence admitted for purposes of the motion shows that there is no genuine issue as to material fact and that IP Petroleum is entitled to judgment as a matter of law. Specifically, there is no genuine issue as to material fact that neither the 2001 nor the 2005 settlement agreement gives the plaintiffs any claim to interest in royalties, attributable to production from the land at issue, at any time prior to April 1, 2001. Therefore, partial summary judgment in favor of IP Petroleum, and against Quality and the St. Martins was properly granted, and the plaintiffs’ claims against IP Petroleum for previously-paid mineral royalties attributable to production prior to April 1, 2001, were properly dismissed, with prejudice.

| ¡¡^DECREE

Based on the foregoing, the April 8,2015 certified final judgment of the trial court is hereby affirmed. All costs of this appeal are assessed against the plaintiffs, Quality Environmental Processes, Inc., Michael X. St. Martin, and Virginia Rayne St. Martin.

AFFIRMED.

      . In a related suit, Mandalay Oil & Gas, L.L.C. v. Energy Development Corporation, Michael X. St. Martin, Virginia Rayne St. Martin, and . Quality Environmental Processes, Inc., bearing trial, court docket number 132, 981 (transferred to Division D of the 32nd JDC in Térrébonne Parish, presided over by Judge David W. Arceneaux), Mandalay Oil & Gas, L.L.C, initiated a concursus proceeding to determine the proper distribution of mineral royalties attributable to production from a producing unit also located on the St. Martin Property. Although consolidated with the instant suit, the Mandalay Oil case was settled and dismissed.

      . The parties herein jointly stipulated that the plaintiffs’ claims against IP Petroleum for royalties accrued prior to June 29, 1997, were prescribed.

      . IP Petroleum filed a motion to consolidate the instant suit, trial court docket number 129,412, assigned to Division D of the 32nd JDC in Terrebonne Parish, presided.over by Judge David W. Arceneaux, with the Blue Line II litigation, trial court docket number. 149,973, assigned to Division B of the 32nd JDC in Terrebonne Parish, presided over by Judge John R,’Walker. The plaintiffs opposed consolidation. The trial court ultimately denied the motion to consolidate.

      . The plaintiffs specifically declared their forbearance with regard to other elements of their original claims, including claims for damages and attorney's fees.

      . In that same judgment, the trial court also denied a motion to strike filed by the plaintiffs in January 2009.

      . IP Petroleum filed a motion, opposed by the plaintiffs, to combine the oral arguments in this appeal with the oral arguments in the ■related appeal—2016 CA 0230—and to have the appeals heard by the same panel. • If so ordered, the defendants requested the parties be permitted twenty-five minutes of argument time per side. We granted the motion in part to allow the two related appeals to be argued before the same panel, but denied IP Petroleum's request to combine oral arguments of the two appeals and issue additional argument time.

      . The trial court’s denial of the plaintiffs’ motion to dismiss IP Petroleum’s motion for summary judgment as untimely is interlocutory in nature and generally not appealable. However, when an unrestricted appeal is taken from a final judgment, the appellant is entitled to seek review of all adverse interlocutory rulings, in addition to review of the final judgment. Cajun Constructors, Inc. v. EcoProduct Solutions, LP, 2015-0049 (La.App. 1 Cir. 9/18/15), 182 So.3d 149, 155, writ denied, 2015-1908 (La. 11/20/15), 180 So.3d 1287.

      . This motion is not part of the designated record on appeal.

      . This opposition is not part of the designated record on appeal. We note that the plaintiffs admit to filing the opposition on April 13, 2009 in their motion for and memorandum in support of a formal order of dismissal pursuant to La. C.C.P. art. 561. We also note that the plaintiffs' April 13, 2009 filing of their opposition is four days past the deadline for additional memoranda, which the trial court set as due on April 9, 2009.

      . In thátsame judgment, the trial court also denied a motion to strike filed by the plaintiffs . in January 2009.

      . The discovery propounded by IP Petro- ' leum to the plaintiffs on April 5, 2012 is not part of the designated record on appeal. We note, however, the plaintiffs concede IP Petroleum propounded the discovery on April 5, 2012 in their motion for and memorandum in support of a formal order of dismissal pursuant to La. C.C.P. art. 561.

      .We also note that the plaintiffs filed a ■ motion for partial summary judgment on August 6, 2007, which is almost two years after the deadline provided for in the pre-trial order. Based on their arguments presented on appeal, the plaintiffs themselves violated the pre-trial order. We also note that it is the plaintiffs, not the defendant, who are trying to dismiss as abandoned their own lawsuit

      . An appellate court is bound to adjudge a case before it in accordance with the law exis.ting at the time of its decision. Segura v. Frank, 630 So.2d 714, 725 (La. 1994). Louisiana Code of Civil Procedure article 966 was amended by 2015 La. Acts'422, § 1; however, the new version of Article 966 does not apply to this case as the Amendment did not become effective until January 1, 2016. Here, the pen-dency of the instant appeal on the effective date of 20 i 5 La. Acts 422 results in the application of the prior version of Article 966 to the instant matter. Now, see La. C.C.P. art. 966(A)(3).

      . Now, see La. C.C.P. art. 966(D)(1).

      . As noted by the trial court in its written reasons, "[t]here are royalties attributable to production on and after April 1, 2001, but the court has not been asked to address the ownership of those royalties.” (Emphasis added.) Thus, this opinion does not address the royalties derived from production between April 1, 2001, and September 1, 2001, in the amount of $106,977.66, and which have been placed in escrow.


source: Caselaw Access Project

author: HIGGINBOTHAM, J.

license: Public Domain

text:
    Marsha A. WILLIS v. EAN HOLDINGS dba/Enterprise Rent A Car, ELCO Insurance Group, Inc., Toyota Motor Corporation, and Troy David Thibodaux
    NO. 2015 CA 1539
    Court of Appeal of Louisiana, First Circuit.
    APRIL 12, 2017
    See also 2017 WL 1376595 and 2017 WL 1378254. .. ....

      Marsha A. Willis, Baton Rouge, LA, Plaintiff-Appellant, In Proper Person
    David A. Salley, A. Jacob Culotta, Jr., New Orleans, LA, Attorneys for Defendant-Appellee, EAN Holdings, LLC
    Thomas W. Darling, Baton Rouge, LA, Attorney for Defendant-Appellee, Empire Fire & Marine Insurance Co.
    Donna Powe Green, Hattiesburg, MS, Attorney for Defendant-Appellee, Rental Insurance Services, Inc.
    BEFORE: HIGGINBOTHAM, THERIOT, AND CHUTZ, JJ.
   HIGGINBOTHAM, J.

| gPlaintiff-appellant, Ms. Marsha Willis (Ms. Willis), appeals the trial court’s grant of summary judgment in favor of defendant-appellee, Rental Insurance Services, Inc. (RIS), and dismissal of her claims with prejudice.

FACTS AND PROCEDURAL HISTORY

On August 3, 2011, Ms. Ida Mae Willis entered into a rental agreement with EAN Holdings, LLC d/b/a Enterprise Rent A Car (Enterprise) for the use of a Toyota Corolla. The next day, Ms. Ida Mae Willis’ daughter, Ms. Willis, was driving the vehicle when she was involved in an accident with Mr. Troy Thibodeaux. After the accident, on June 23, 2012, Mr. Thibodeaux filed a petition for damages in the 19th Judicial District Court against Ms. Willis and RIS (hereafter referred to as the Thi-bodeaux litigation). RIS made Ms. Willis aware through a phone message that it was not providing a defense for her because she was not an authorized driver under the rental agreement. However, RIS negotiated a settlement agreement with Mr. Thibodeaux whereby Mr. Thibodeaux dismissed his claims against all parties, including Ms. Willis, in exchange for payment made by RIS.

Thereafter, Ms. Willis sought discovery responses from RIS and Mr. Thibodeaux, but, because of the agreement settling all the claims of Mr. Thibodeaux, the trial court signed an order suspending discovery. The trial court also awarded sanctions related to an answer filed by Ms. Willis in favor of RIS under La. Code Civ. P. art. 863. Ms. Willis appealed the trial court’s judgments awarding sanctions and suspending discovery. The judgments were affirmed by this court. See Thibodeaux v. Rental Ins. Services, Inc., 2013-1947 (La. App 1st Cir. 4/24/15) 2015 WL 1882456 (unpublished), writ denied, 2015-1213 (La. 9/25/15), 178 So.3d 567.

The litigation forming the basis of this appeal by Ms. Willis began on August 6, 2012, when she filed a Petition for Damages naming Enterprise, Toyota |sMotor Corporation, and Mr. Thibodeaux as defendants. Subsequently, Ms. Willis filed an amended and supplemental petition adding as defendants RIS and Empire Fire and Marine Insurance Company (Empire). In her petition, Ms. Willis set forth several theories of recovery against RIS including state law claims of fraud and breach of contract, and federal law claims under the Fourteenth Amendment as well as civil right violations under 42 U.S.C.A. § 1985 and 42 U.S.CA. § 1983, and equal rights violations under 42 U.S.C.A. § 1981. Ms. Willis contends that RIS, in informing her that she was not an authorized driver more than one year after the accident, and settling the Thibodeaux litigation without her permission, prevented her from being able to prove that the accident was not her fault, and placed her in a position in which it appeared she owed Mr. Thibodeaux money through the settlement agreement.

On April 21, 2015, RIS filed a motion for summary judgment contending that no genuine issues of material fact exist regarding any of the causes of action Ms. Willis set forth in her petition. RIS’ motion for summary judgment was heard by the trial court on June 1, 2015, after which the trial court concluded that Ms. Willis “has no evidence to support any issues of material fact against [RIS] ” and “has shown no basis for recovery against [RIS].” On June 16, 2015, judgment was signed granting RIS’ motion for summary judgment and dismissing Ms. Willis’ claims against RIS with prejudice. It is from this judgment that Ms. Willis appeals raising four assignments of error.

LAW AND ANALYSIS

On appeal, summary judgments are reviewed de novo under the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate. Sunrise Const. and Development Corp. v. Coast Waterworks, Inc., 2000-0303 (La.App. 1 Cir. 6/22/01), 806 So.2d 1, 3, writ denied, 2001-2577 (La. 1/11/02), 807 So.2d 235. Summary judgment is appropriate only if the pleadings, depositions, answers to interrogatories, and admissions, together with |4any affidavits, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La. Code Civ. P. art. 966(B)(2). The initial burden of proof is on the moving party; however, if the moving party will not bear the burden of proof at trial, the moving party’s burden on the motion is satisfied by pointing out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim. Thereafter, the nonmoving party must produce factual support sufficient to establish that they will be able to satisfy their evidentiary burden of proof at trial; failure to do so shows that there is no genuine issue of material fact and the motion should be granted. La. Code Civ. P. art. 966(C)(2).

In support of its motion for summary judgment, RIS attached several documents including: Empire’s motion for summary judgment, Enterprise’s rental agreement with Ms. Ida Mae Willis showing Ms. Willis was not an authorized driver, and the letter from RIS’ attorney to the Judge in the Thibodeaux litigation stating that Mr. Thibodeaux agreed to dismiss all claims against all parties in exchange for payment made by RIS. The letter was also signed by Mr. Thibodeaux’s attorney. The evidence presented by RIS revealed .that even though Ms. Willis was not an authorized driver under the rental agreement, RIS still settled Mr, Thibodeaux’s claims on behalf of Ms. Willis, and Ms. Willis was not required to make any payments related to the accident. RIS contends that because Ms. Willis did not have a contract with RIS, she had no claim under 42 U.S.C.A. § 1981 or for breach of contract. Additionally, RIS asserts that it is not a state actor nor acting under the color of state law, thus Ms. Willis has no valid claim under the | ^Fourteenth Amendment or 42 U.S.C.A. § 1983, and further, Ms. Willis presented no evidence of conspiracy or an intent to deceive; therefore, she does not have a claim under 42 U.S.C.A. § 1985 or for fraud.

Out of an abundance of caution, we will address all of Ms. Willis’ assignments of error and causes of action raised in her petition and amended petitions.

First, in order to have a cause of action under the Fourteenth Amendment and-claim protection under the due process clause or assert a claim under 42 U.S.C.A. § 1983, Ms. Willis must prove that she has been deprived of a right secured by the United States Constitution by one acting under color of state law. Sanders v. State ex rel. Dept. of Health and Hospitals, 2011-0814 (La.App. 1 Cir. 8/2/12), 2012 WL 3133694, *7 (unpublished). To claim the protections of due process, Ms. Willis must show the existence of some property or liberty interest that has been adversely affected by state action. American International Gaming Assn., Inc. v. Louisiana Riverboat Gaming Comm’n, 2000-2864 (La.App. 1 Cir. 9/11/02), 838 So.2d 5, 16. Clearly, RIS is a private corporation and was in no way acting under the color of state law. Thus, Ms. Willis could not meet her burden of proving her Fourteenth Amendment due process claims or § 1983 claims.

With respect to Section 1981, the United States Supreme Court has explained that the provision was “meant,, by its broad terms, to proscribe discrimination in the making or enforcement of contracts against, or in favor of, any race.” Gratz v. Bollinger, 539 U.S. 244, 276 n.23, 123 S.Ct. 2411, 2430 n.23, 156 L.Ed.2d 257 (2003). Under the well-established framework set out by the Supreme Court, the plaintiff has the initial burden of proving, by a preponderance Rof the evidence, a prima facie case of discrimination. Patterson v. McLean Credit Union, 491 U.S. 164, 186, 109 S.Ct. 2363, 2378, 105 L.Ed.2d 132 (1989) Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 252-253, 101 S.Ct. 1089, 1093-1094, 67 L.Ed.2d 207 (1981). The plaintiff must allege facts in support of the following elements: (1) the plaintiff is a member of a racial minority, (2) the defendant intended to discriminate on the basis of race, and (3) the discrimination concerned one or more of the activities enumerated in the statute. Riley v. Transamerica Ins. Group Premier Ins. Co., 923 F.Supp. 882, 889 (E.D. La. 1996), aff'd, 117 F.3d 1416 (5th Cir. 1997)(per curiam). Ms. Willis has provided no evidence of purposeful discrimination on the part of RIS. Thus, her § 1981 claims must fall.

In her first and second assignments of error, Ms. Willis contends that the trial court erred in granting summary judgment finding no breach of contract when RIS previously told Ms. Willis that it would indemnify her in the Thibodeaux litigation, but later informed her that it was asserting the unauthorized driver defense. Ms. Willis, as the party claiming the existence of a contract, has the burden of proving that the contract was perfected between herself and her opponent. Key Office Equipment, Inc. v. Zachary Community School Board, 2015-1412 (La.App. 1 Cir. 4/15/16), 195 So.3d 54, 59, writ denied, 2016-0841 (La. 6/17/16), 192 So.3d 772. The only contract introduced in these proceedings was the rental agreement between Ms. Ida Mae Willis and Enterprise. Ms. Willis produced no evidence to prove that a contract was perfected between her and RIS. Additionally, RIS settled Mr. Thibodeaux’s claims against Ms, Willis on her behalf resulting in Mr. Thibodeaux dismissing his claims against Ms. Willis. Thus, we find no merit to Ms. Willis first and second assignments of error.

In her,third assignment of error, Ms. Willis contends that the trial court erred in granting RIS’ motion for summary judgment because RIS conspired to create a situation where a “falsely worded settlement agreement” appeared valid and placed her in a position in which it “seemed that she owed [RIS] the money paid to [Mr.] 17Thibodeaux.” Ms. Willis did not introduce the settlement agreement nor evidence to prove that the settlement was “falsely worded.” Ms. Willis 'was not required to pay any money to RIS or Mr. Thibodeaux to settle the Thibodeaux litigation. Additionally, Ms. Willis produced no evidence to prove RIS conspired with anyone. In Griffin v. Breckenridge, 403 U.S. 88, 102-03, 91 S.Ct. 1790, 1798-99, 29 L.Ed.2d 338 (1971), the Supreme Court interpreted Section 1985(3) to require that a plaintiff allege: (1) a conspiracy of two or more persons, (2) for the purpose of depriving either directly or indirectly, any person or class of persons of the equal protection of laws, or of equal privileges and immunities under the laws, and (3) an act in furtherance of the conspiracy, and (4) the person is either injured in his person or property or deprived of any right or privilege of a citizen of the United States. In other words, the conspiracy must aim at depriving the equal enjoyment of rights that are secured by law to all. Id. There was simply no evidence of any conspiracy on the part of RIS. Thus, we find no merit to Ms. Willis’ third assignment of error or to her claims under 42 U.S.C.A. § 1985.

In her final assignment of error, Ms. Willis contends that the trial court erred in granting RIS’ motion for summary judgment when RIS through its acts and omissions in the Thibodeaux litigation “induced the trial judge to deny [her] discovery and to sanction her.” The decisions of the trial court in the Thibodeaux litigation regarding the order to suspend discovery and the judgment awarding sanctions were affirmed by this court in a prior appeal. See Thibodeaux, 2015 WL 1882456, at *10. In this matter, Ms. Willis offered no evidence to prove RIS induced the trial court in anyway, and this court has previously determined that there was no error in the trial court judgments regarding discovery and sanctions. Therefore, we find no merit to Ms. Willis’ final assignment of error.

Because Ms. Willis did not produce factual support to establish that she will be able to satisfy her evidentiary burden at trial on any of the numerous causes of action she asserted in her petition and amended petitions, after de novo review of the record, we find no genuine issues of material fact remain and RIS is entitled to judgment as a matter of law.

CONCLUSION

For the foregoing reasons, we affirm the trial court’s grant of summary judgment in favor of defendant-appellee, Rental Insurance Services, Inc. All costs of the appeal are assessed to plaintiff-appellant, Ms. Marsha Willis.

AFFIRMED.

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

      . The trial court also granted a motion for summary judgment in favor of Empire. Ms. Willis filed a separate appeal seeking review of that judgment in Willis v. EAN Holdings d/b/a Enterprise Rent A Car, 2015-1538, (La. App. 1st Cir. 4/12/17), 218 So.3d 177, also handed down this date.

      . Section 1981(a) states:

        All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every, kind, and to no other.

      . The pertinent provisions of Section 1985(3) state:
      If two or more persons in any State ... conspire ,,. on the premises of another, for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; or for the purpose of preventing or hindering the constituted authorities of any State or Territory from giving or securing to all persons within such State or Territory the equal protection of the laws; ... in any case of conspiracy set forth in this section, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages occasioned by such injury or deprivation, against any one or more of the conspirators.


author: CALLOWAY, J.

text:
    PARADIGM HEALTH SYSTEM, L.L.C. v. Barry FAUST
    2016 CA 1276
    Court of Appeal of Louisiana, First Circuit.
    APRIL 12, 2017

      Vincent F. Wynne, Jr., Shannon K. Low-ry, Covington, Louisiana, Attorneys for Plaintiff/Appellant, Paradigm Health System, L.L.C.
    Bruce A. Cranner, Ryan G. Davis, Mandeville, Louisiana, Attorneys for Defendant/Appellee, Barry Faust, M.D.
    BEFORE: PETTIGREW, McDonald, and calloway
       jj.

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

   CALLOWAY, J.

I ^Defendant, Paradigm Health System, L.L.C. (Paradigm), appeals a judgment denying preliminary injunctive relief, based upon the trial court’s determination that the noncompetition provisions of Paradigm’s employment agreement with Barry Faust, M.D. were invalid and unenforceable. For the reasons stated herein, we affirm.

FACTS AND PROCEDURAL HISTORY

Paradigm filed a declaratory judgment, petition for damages, and a request for injunctive relief against Dr. Faust, claiming that he breached the noncompetition clause of an employment agreement between the parties. In June of 2014, Paradigm and Dr. Faust entered into an employment agreement, which stated that for two years after termination of the employment, Dr. Faust could not, “engage in the practice of medicine or render any medical services to any business similar to those services provided by [Paradigm]....” Paradigm claims that Dr. Faust resigned his employment on April 23, 2015. At the time Paradigm filed the petition on October 16, 2015, Paradigm claimed that Dr. Faust was actively seeking employment in the parishes restricted by the noncompetition agreement, St. Tammany, Tangipahoa, and/or the restricted portions of Jefferson Parish. Paradigm sought injunctive relief to prevent Dr. Faust from violating the noncompetition agreement, as well as damages and a declaratory judgment declaring the restrictive covenants in the employment agreement to be valid and enforceable.

In response, Dr. Faust denied that he resigned his employment, claimed he was terminated by Paradigm on April 21, 2015, and filed a reconventional demand asserting a claim for past wages. Dr. Faust filed a supplemental and amending reconven-tional demand claiming Paradigm breached the employment agreement |sby terminating him before he had worked for one year, and he also sought penalties and attorney's fees.

The trial court held a hearing on the injunctive relief sought by Paradigm on March 8, 2015. The trial court heard oral argument and continued the matter for the parties to complete discovery. On May 17, 2015, the trial court heard the continuation of the request for injunctive relief. The noncompetition agreement prohibited Dr. Faust from the following:

[Ejngage in the practice of medicine or render any medical services to any business similar to those services provided by [Paradigm], located in the Louisiana Parishes of St. Tammany, Jefferson (exception of city of Kenner, and West-bank) and Tangipahoa. The list of parishes and locations shall be expanded if the Company opens new offices in additional locales in which case [this section] shall apply to .the new [Paradigm] offices. Violation of this provision shall result in liquidated damages' of $400,000.

The trial court determined that the language of the noncompetition agreement was overly broad, since it restricted Dr. Faust from the “practice of medicine” without being limited to his field of pain management. The trial court also found that the noncompetition agreement was overly broad and unenforceable because it attempted to add “locales” where Paradigm might open offices in the future to the geographic limitation. The trial court denied the request for preliminary injunc-tive relief.

The trial court signed a judgment on June 13, 2016, denying the preliminary injunctive relief, and Paradigm filed this appeal. This court issued a rule to show cause, as the judgment appeared to be a partial judgment and did not appear to address all the claims Paradigm had against Dr. Faust. Pursuant to that order, the trial eourt signed an amended judgment on October 25, 2016, designating the judgment as a final judgment pursuant to La. C.C.P. art. 1915(B) and. issuing a per curiam giving explicit reasons as to the designation, as requested by this court. l/Fhe rule to show cause issued by this court was referred to this panel. We maintain this appeal.

ERRORS

While Paradigm assigns four assignments of errors, we find that these can be consolidated into the following errors by the trial court: (1) by finding the noncom-petition clause to be overly broad and not in compliance with La. R.S. 23:921(C); (2) by finding the noncompetition clause to violate the geographic requirements of La. R.S. 23:921(0); and (3) by finding that certain clauses could not be severed from the noncompetition clause, and thereby refusing to reform the employment agreement.

LAW AND DISCUSSION

Historically, Louisiana has disfavored noncompetition agreements. SWAT 24 Shreveport Bossier, Inc. v. Bond, 2000-1695 (La. 6/29/01), 808 So.2d 294, 298. Such agreements are deemed to be against public policy, except under the limited circumstances delineated by statute. J4H, L.L.C. v. Derouen, 2010-0319 (La.App. 1 Cir. 9/10/10), 49 So.3d 10, 13. At all times pertinent to this matter, La. R.S. 23:921 provided, in part, as follows:

A. (1) Every contract or agreement, or provision thereof, by which anyone is restrained from exercising a lawful profession, trade, or business of any kind, except as provided in this Section, shall be null and void. However, every contract or agreement, or provision thereof, | fiwhich meets the exceptions as provided in this Section, shall be enforceable.
C. Any person ... may agree with his employer to refrain from carrying on or engaging in a business similar to that of the employer and/or from soliciting customers of the employer within a specified parish or parishes, municipality or municipalities, or parts thereof, so long as the employer carries on a like business therein, not to exceed a period of two years from termination of employment.

Louisiana Revised Statute 23:921(C) is an exception to Louisiana’s public policy against noncompetition agreements and, as such, must be strictly construed. J4H, 49 So.3d at 14. Thus, to be valid, a noncompetition agreement may limit competition only in a business similar to that of the employer, in a specified geographic area and for up to two years from termination of employment. Cellular One, Inc. v. Boyd, 1994-1783 (La.App. 1 Cir. 3/3/95), 653 So.2d 30, 33, writ denied, 1995-1367 (La. 9/15/95), 660 So.2d 449. If the action sought to be enjoined pursuant to a noncompetition agreement does not fall within the statutory exception of La. R.S. 23:921(C), or the agreement does not conform to the statutory requirements, then the party seeking enforcement cannot prove it is entitled to the relief sought. Vartech Systems, Inc. v. Hayden, 2005-2499 (La.App. 1 Cir. 12/20/06), 951 So.2d 247, 255-56.

Generally, a party seeking the issuance of a preliminary injunction must show that he will suffer irreparable injury if the injunction does not issue and must show entitlement to the relief sought; this must be done by a prima facie showing that the party will prevail on the merits of the case. However, in the event an employee enters into an agreement with his employer not to compete, pursuant to La. R.S. 23:921, and fails to perform his obligation under such an agreement, the court shall order injunctive relief even without a showing of irreparable harm, upon proof by the employer of the employee’s breach of the noncompetition agreement. See La. R.S. 23:921(H); Vartech Systems, 951 So.2d at 255.

lfiIn determining whether the employer has met his burden of proof, the courts have been called on to consider the validity and enforceability of the agreement sought to be enforced by the employer. Where the actions sought to be enjoined pursuant to a noncompetition agreement do not fall within the exception found in La. R.S. 23:921(C) or where the noncompetition agreement is found to be unenforceable for failure to conform to La. R.S. 23:921, the employer is unable to establish that it is entitled to the relief sought. Vartech Systems, 951 So.2d at 255-56.

Typically, a trial court enjoys considerable discretion in determining whether a preliminary injunction is warranted, and the issuance of a preliminary injunction will not be disturbed on appeal absent a clear abuse of discretion. Vartech Systems, 951 So.2d at 256. However, the underlying issue in this case is whether the noncompetition agreement falls within the exception found in La. R.S. 23:921(C). The proper interpretation of a statute is a question of law that we review de novo. J4H, 49 So.3d at 14.

In the present matter, Paradigm employed Dr. Faust in the field of anesthesia and interventional pain management. The noncompetition agreement sought to prohibit Dr. Faust from engaging “in the practice of medicine” or rendering “any medical services to any business similar to those services provided by [Paradigm].” Nowhere does the employment agreement define the services provided by Paradigm. At the hearing, the trial court orally expressed his misgivings with the noncom-petition clause, stating that it prevented Dr. Faust from the “practice of medicine,” but Paradigm argued the doctor understood the restriction to be “pain management.” The trial court stated, “But the agreement says he was hired as a physician to provide interventional pain management services, and the noncompete clause says that he cannot provide any medical 17services.” Based on this distinction in the language used, the trial court found the noncompetition clause to be overly broad and unenforceable.

Noncompetition agreements are strictly construed in favor of the employee and against the party attempting enforcement. Noncompetition clauses that contain overly broad definitions of the employer’s business violate La. R.S. 23:921(C) and are null and void. It is not sufficient to merely prohibit an employee from engaging in a business similar to the employee. La-Fourche Speech & Language Servs., Inc. v. Juckett, 1994-1809 (La.App. 1 Cir. 3/3/95), 652 So.2d 679, 680-81, writ denied, 1995-0850 (La. 5/12/95), 654 So.2d 351. Furthermore, an “employer is only entitled to keep ex-employees from competing with the employer’s actual business, not some overblown contractual definition of business designed to cover the proverbial waterfront and keep ex-employees from being able to make a living in any segment of the ex-employer’s industry.” Vartech Systems, 951 So.2d at 259 n.15.

In LaFourche Speech, this court noted that the employment agreement did not define the employer’s business, but the petition stated that the employer was a “rehabilitation agency providing therapy services in the field of speech pathology, vocational rehabilitation, occupational therapy, physical therapy, and social work services.” 652 So.2d at 681. However, the employee was only hired as a speech- therapist. Finding that the employee was restricted to-a similar business of her employer would have restricted her from more than that which she was hired. LaFourche Speech, 652 So.2d at 681;

The noncompetition agreement in this matter prevents Dr. Faust from the “practice of medicine” without' limitation. The words of'a contract must be given their generally prevailing meaning. La. C.C. art. 2047. Words susceptible of different meanings must be interpreted as having the meaning that best conforms to the object of the contract. Lá. C.C. art, 2048. 'Each provision in a contract must |sbe interpreted in light of the other provisions so that each is given the meaning suggested by the contract as a whole.- La.- C.C. art. 2050. As argued by Dr. Faust’s attorney at the hearing, the noncompetition agreement as written prohibits Dr. Faust from practicing any medicine, such as in anesthesiology, as a hospitalist, or as an emergency room physician. It would also prevent him from. practicing medicine as a general practitioner or from performing health insurance physical examinations.

Paradigm argued at the hearing that the language “practice of medicine” was limited by the next clause that prevented Dr. Faust from rendering “any medical services to any business similar to those services provided by [Paradigm].” Paradigm argues that La. R.S. 23:921 does not require a noncompetition agreement to contain a specific definition of an employer’s business. Paradigm relies on Baton Rouge Computer Sales, Inc. v. Miller-Conrad, 1999-1200 (La.App. 1 Cir. 5/28/00), 767 So.2d 763, 764, which stated that the law did not require a noncompetition agreement to contain a specific definition of the employer’s business. There, the noncom-petition agreement prohibited the employee from engaging in a business similar to the employer. However, the employer’s only business in that case was computer sales. In that situation, the court held that the employee knew she was agreeing not to- engage in computer - sales when she signed the noncompetition agreement. Baton Rouge Computer Sales, 767 So.2d at 764-65.

We find the present case to be more similar to the cases Baton Rouge Computer Sales distinguished as follows:

. Cases which have found [noncompetition] agreements to be void based on the definition of the employer’s business include [LaFourche Speech]; Summit Inst. for Pulmonary Med. and Rehabilitation, Inc. v. Prouty, 29,829 (La.App. 2 Cir. 4/9/97), 691 So.2d 1384, writ denied, 97-1320 (La. 9/26/97), 701 So.2d 983; and Daiquiri’s III on Bourbon, Ltd. v. Wandfluh, 608 So.2d 222 (La. App. 5 Cir. 1992), writ denied, 610 So.2d 801 (La. 1993). In all of these Leases, the business description either in the contract or in the plaintiffs petition was found to be overly broad. Hence, enforcement of the contracts in those cases would have restricted and prohibited the employees from engaging in many more types of employment than they actually held with the plaintiff-employers. .

767 So.2d at 765 (emphasis added). The employment agreement in this case restricts Dr. Faust from engaging in many more types of employment than he actually held with Paradigm.

Paradigm also relies on Cellular One, which held that a contract that prevented the defendants from “engaging in a radio telephone service business similar to that of Cellular One, Inc.” adequately defined the business from which the defendants were prohibited from competing and complied with La. R.S. 23:921(0). 653 So.2d at 33.

We do not find that Cellular One stands for the proposition that using language stating that an employee is prevented from engaging in a business similar to an employer is always in compliance with La. R.S. 23:921(C). In the present case, the field of medicine contains a wide array of practices and specialties. Dr. Faust was hired to conduct services in “interventional pain management.” Although the employment agreement notes that Dr. Faust is licensed and qualified in the fields of anesthesia and interventional pain management, it does not appear from the record that Paradigm hired him in the field of anesthesia. Therefore, the noncompetition agreement which attempted to prevent Dr. Faust from engaging in the “practice of medicine” or rendering “any medical services to any business similar to those services provided by [Paradigm]” is overly broad and unenforceable.

Paradigm also relies on Cardiovascular Institute of the South v. Abel, 2014-1268 (La.App. 1 Cir. 3/9/15)(unpublished), wherein a preliminary injunction was enforced against a physician who had signed a noncompetition agreement. |inHowever, in Cardiovascular Institute of the South, the noncompetition agreement was specifically limited to the sub-specialty of cardiology, unlike the present case wherein the noncompetition agreement is not limited to any sub-specialty at all.

Paradigm maintains that to the extent any portion of the noncompetition clause is found to be unenforceable, such portion should be reformed to the extent necessary to be legally enforceable to the fullest extent permitted by law, pursuant to the severability clause of the employment agreement. • The severability clause provides:

It is intended- that each paragraph of this Agreement shall be viewed as separate and divisible, -and in the event- that any word, clause, sentence, paragraph, part or provision shall be held to be invalid, illegal, or unenforceable and shall not affect, prejudice or disturb the validity of the remainder of this Agreement, which shall be in full force and effect, and enforceable in accordance its terms.

Paradigm argues that even if the trial court found that prohibiting Dr. Faust from engaging in the “practice of medicine” was overly broad, the remainder of the clause prohibiting him from rendering “any medical services to any business similar to those services provided by [Paradigm]” should have been enforced.

In the present case, both the prohibition from the “practice of - medicine” and the prohibition from rendering “any medical services to any business similar to those services provided by [Paradigm]” are overly broad. Once the offending portions of the noncompetition clause are stricken, there is no language in the agreement that can be construed to prohibit the conduct of which Paradigm- complains. See SWAT 24, 808 So.2d at 309.

A review of the trial court’s comments during the hearing reveal that the trial court found both of the clauses relied upon by Paradigm to be overly broad. As to the prohibition from rendering “any medical services to any business similar to those services provided by [Paradigm],” it appears that neither the clause itself, nor any other provision in the contract, defines Paradigm’s business or the services |nit provides. Notably, the contract’s preamble only states that paradigm provides “certain medical services.” So, as the clause reads, Dr. Faust is prohibited from rendering any medical services to any business similar to Paradigm, but the prohibited ■ services cannot be gleaned from the contract, because the contract does not define what Paradigm’s business is. As we agree with the trial court, the noncompetition clause in this case does not comply with La. R.S. 23:921(0) and the entirety of it is invalid and unenforceable.

Because we have found the noncompetition clause in the employment agreement to be invalid and unenforceable due to the overly broad language, and that it may not be reformed, the issue of the geographic limitations is moot.

CONCLUSION

For the above and foregoing reasons, the trial court’s October 13, 2016 judgment denying Paradigm Health System, L.L.C.’s Petition for Injunctive Relief ‘is hereby affirmed. Costs of this appeal are assessed against plaintiff, Paradigm Health System, L.L.C.

APPEAL MAINTAINED; AFFIRMED.

McDonald, J. concurs.

Pettigreen, J. concurs.

      . On this same date, the trial court also heard and denied Paradigm’s motion for summary judgment on Dr. Faust's wage claim, which is not a subject of this appeal.

      . Paradigm's petition for injunctive relief contains several other causes of action besides injunctive relief. Those causes of action were not heard by the trial court at the time of the evidentiary hearing for the preliminary injunction. The judgment denying the preliminary injunction was not originally designated by the trial court as final or appealable pursuant to La. C.C.P, art. 1915(B). However, an appeal may be taken as a matter of right, pursuant to La, C.C.P. art. 3612(B). See Progressive Waste Solutions of LA, Inc. v. Math-erne, 2014-0380 (La.App. 1 Cir. 11/12/14)(unpublished); Gulf Industries v. Boylan, 2013-1640 (La.App. 1 Cir. 6/6/14)(unpublished). In any event, the trial court amended the judgment and designated it as final pursuant to La, C.C.P. art. 1915(B).

      . Louisiana’s strong public policy restricting these types of agreements is premised on an underlying state objective to prevent an individual from contractually depriving himself of the ability to support himself and consequently becoming a public burden. Kimball v. Anesthesia Specialists of Baton Rouge, Inc., 2000-1954 (La.App. 1 Cir. 9/28/01), 809 So.2d 405, 410, writs denied, 2001-3316 & 2001-3355 (La. 3/8/02), 811 So.2d 886 & 886.