author: ROSEMARY LEDET, Judge.

text:
    DELTA ADMINISTRATIVE SERVICES, L.L.C. v. LIMOUSINE LIVERY, LTD., et al.
    No. 2015-CA-0110.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 17, 2015.

      Norman A. Mott, III, Jessica R. Deren-becker, Shields Mott Lund L.L.P., New Orleans, LA, for Plaintiff/Appellant.
    Ellis B. Murov, Andrew J. Baer, Deutsch, Kerrigan & Stiles, LLP, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge EDWIN A. LOMBARD, Judge ROLAND L. BELSOME, Judge ROSEMARY LEDET).
   ROSEMARY LEDET, Judge.

| ¶ This is a declaratory judgment action seeking a determination that the parties had no agreement to arbitrate their underlying contractual dispute. The parties are Delta Administrative Services, L.L.C. (“DAS”) and Limousine Livery, Ltd. (“LLI”). DAS commenced this action against LLI seeking not only a declaratory judgment, but also an injunction to prevent LLI from proceeding with the arbitration proceeding that it had commenced. From the trial court’s judgment dismissing DAS’s declaratory judgment action and denying its request for an injunction, DAS appeals. For the reasons that follow, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Effective January 2010, DAS and LLI entered into an Administrative Services Contract (the “Agreement”) for DAS to provide payroll services and human resources advice to LLI. The Agreement was a form contract that DAS was using at the time it entered into the relationship with LLI. Before sending the Agreement to LLI, David Lawrence, DAS’s owner and manager, customized the [ ¿form contract to conform to the agreed-upon arrangement that he had discussed with Aaron Dirks, LLI’s president. The topics they discussed, however, did not include selecting a method of dispute resolution. Included in the Agreement that Mr. Lawrence sent to LLI was the following “either/or” provision, which is the subject to this appeal:

IX. GENERAL PROVISIONS
******
SELECT ONE “B” BELOW
B. Dispute Resolution and Governing Law. If at any time during the course of this Agreement or following the termination of the Agreement, there shall arise a dispute arising out of or under this Agreement or with respect to the Agreement, any part thereof, its terms, its interpretation, a breach thereof, or any aspect of the parties relationship and the transactions contemplated herein, the parties agree first to attempt in good faith to settle the dispute by mediation in accordance with the procedures of the Federal Mediation and Conciliation Service [“FMCS”], or by a procedure agreed to by both parties. Once mediation is elected, the parties agree to allow minimum of (60) days to resolve the dispute with mediation before resorting to arbitration, litigation, or some other dispute resolution procedure. If mediation fails, either party may elect to submit to alternative dispute resolution through arbitration. Such arbitration shall be in accordance with the Commercial Arbitration Rules of the American Arbitration Association, pursuant to the Federal Arbitration Act. No civil action concerning any dispute within the scope of this arbitration provision, which the parties intend to be broad in scope, shall be instituted before any court but shall be submitted to final and binding arbitration as herein provided. Such arbitration shall be conducted in accordance with the rules of such association before a single arbitrator. All arbitration proceedings shall take place at a location mutually agreed by the parties, otherwise in Jefferson Parish, Louisiana. All costs of arbitration, including attorneys’ fees and other costs attendant thereto, shall be allocated among the parties according to the arbitrator’s discretion who may award all costs to one party or allocate the costs between the parties. Further, arbitrator’s award resulting from such arbitration may be confirmed and entered as a final judgment in any court of competent jurisdiction and enforced accordingly. The parties expressly agree that proceeding to arbitration and obtaining an award thereunder shall be a condition precedent to bringing or maintaining Rany action in any court with respect to any dispute arising under this Agreement, except for the institution of a civil action to maintain the status quo, subject to each party’s right of adequate protection during the pendency of any arbitration proceeding. This Agreement shall not be effective until accepted and executed by ASO [DAS] in Metairie, Jefferson Parish, Louisiana; and shall be governed by and construed in accordance with the laws of the State of Louisiana.
B. Governing Law. This Agreement shall not be effective until accepted and executed by ASO [DAS] in Metairie, Jefferson Parish, Louisiana; and shall be governed by and construed in accordance with the laws of the State of Louisiana.

An authorized representative of both DAS (Mr. Lawrence) and LLI (Christy Dirks, LLI’s owner) signed the Agreement. Neither party’s representative, however, selected either of the options—the “B” provisions—in the “either/or” provision. The Agreement thus became effective with both “B” provisions in it.

Subsequently, a contractual dispute arose between the parties; and the contractual relationship between them was terminated. In his correspondence to Mr. Dirks, dated January 3, 2013, regarding the termination, Mr. Lawrence stated:

We are in receipt of the letter written by Mr. Englehart dated December 28th, 2012 requesting the cancellation of our services for your company....
⅝ ⅝ # ⅜ #
Naturally if we have to depend on attorneys to collect any of monies outstanding we will refer to section IX (b) [of the Agreement] whereby attorneys fees will be added on top of anything else due from your company.

| ¿Meanwhile, in an attempt to resolve their contractual dispute, LLI attempted to invoke the “Dispute Resolution and Governing Law” provision of the Agreement, which imposed as a condition precedent to arbitration that the parties submit to mediation either by the Federal Mediation and Conciliation Service (“FMCS”) or “by a procedure agreed to by both parties.” In late 2012, LLI, with DAS’s knowledge and without any objection from DAS, attempted to have FMCS mediate the dispute. The parties then engaged in two unsuccessful mediations, one in December 2012 and the other on February 5, 2014. DAS participated in both media-tions without objection.

On April 11, 2014, over sixty days after the second mediation, LLI filed an arbitration demand with the American Arbitration Association (the “AAA”). To do so, LLI had to pay $6,200.00 to the AAA. In response, DAS objected contending it never agreed to arbitrate disputes between itself and LLI. On May 11, 2014, the AAA notified the parties that it had made an administrative determination that the matter met its filing requirements. The AAA also notified the parties that absent an agreement by the parties or a court order staying the matter, it would proceed with the administration of the arbitration.

On May 23, 2014, DAS filed a “Petition for Declaratory Judgment, Preliminary and Permanent Injunction” in Orleans Parish against LLI. In its | ^petition, DAS averred that the Agreement contained separate, conflicting provisions regarding dispute resolution—private arbitration or judicial resolution in Jefferson Parish. DAS further averred that the Agreement, as drafted, contemplated that the parties would elect one of the two provisions. The executed Agreement, DAS averred, contained no evidence of an election or agreement to arbitrate disputes. DAS averred that it was not challenging the validity of the Agreement; rather, it was challenging whether there ever was an agreement to arbitrate disputes arising under it “because neither party manifested any intent to make the arbitration provision the chosen method for dispute resolution.” Moreover, DAS averred that the AAA erroneously determined that an arbitrator must decide whether the parties entered into an agreement to arbitrate and that the AAA had begun the processing of the matter for arbitration.

In June 2014, the parties entered into a consent judgment staying the arbitration until such time as the court ruled on DAS’s request for a permanent injunction and declaratory judgment. DAS thus withdrew its request for a preliminary injunction, and the parties engaged in discovery.

On October 31, 2014, the trial court, following a hearing, rendered judgment denying DAS’s request for a declaratory judgment and permanent injunction. In its reasons for judgment, the trial court found that DAS consented to arbitrate by signature and performance. The instant appeal followed.

JURISDICTION AND STANDARD OF REVEW

inA judgment denying a permanent injunction is an appealable judgment. La. C.C.P. art. 3612(B). A judgment denying a declaratory judgment is an interlocutory judgment. Walker v. State, 09-0973, p. 2 (La.App. 4 Cir. 10/21/09), 26 So.3d 782, 784 (holding that a “judgment denying a declaratory judgment is neither a final judgment nor a partial final judgment.”). Nonetheless, “[a]n appellant is entitled to seek review of all adverse interlocutory judgments prejudicial to them, in addition to the review of the final judgment when an unrestricted appeal is taken.” Orleans Parish Sch. Bd. v. Lexington Ins. Co., 11-1720, p. 10 (La.App. 4 Cir. 8/22/12), 99 So.3d 723, 729 (citing Alexander v. Palazzo, 08-1541, p. 6 (La.App. 1 Cir. 2/13/09), 5 So.3d 950, 953); see also Judson v. Davis, 11-0623, pp. 18-19 (La. App. 1 Cir. 11/9/11), 81 So.3d 712, 724. Such is the case here. DAS seeks review of the trial court’s final judgment denying its request for injunctive relief. In the same judgment, the trial court denied its request for a declaratory judgment and dismissed its entire suit. The entire judgment is thus properly before us on appeal.

Appellate courts review judgments denying a permanent injunction under an abuse of discretion standard of review. A.M.E. Disaster Recovery Servs., Inc. v. City of New Orleans, 10-1755, p. 4 (La.App. 4 Cir. 8/24/11), 72 So.3d 454, 456-57. The same standard of review applies to judgments denying declaratory relief, Edgar Benjamin Fontaine Testamentary Trust v. Jackson Brewery Marketplace, 02-2337, pp. 4-5 (La.App. 4 Cir. 5/7/03), 847 So.2d 674, 677 (quoting In re Peter, 98-0701, pp. 4-5 (La.App. 4 Cir 12/23/98), 735 So.2d 665, 667) (holding that |7“ ‘the scope of appellate review is confined to a determination of whether or not the trial court abused its discretion by granting or refusing to render a declaratory judgment.’ ”); see also Louisiana Supreme Court Committee on Bar Admissions v. Roberts, 00-2517, p. 3 (La.2/21/01), 779 So.2d 726, 728) (holding that “[t]rial courts are vested with wide discretion in deciding whether to grant or refuse declaratory relief.”).

ARBITRATION

In Louisiana, the positive law favors arbitration as “a preferred method of alternative dispute resolution.” Hodges v. Reasonover, 12-0043, p. 4 (La.7/2/12), 103 So.3d 1069, 1072 (citing Aguillard v. Auction Management Corp., 04-2804, p. 6 (La.6/29/05), 908 So.2d 1, 7). Under Louisiana law, a written contract to settle a dispute by arbitration is binding and enforceable. La. R.S. 9:4201. Pursuant to La. R.S. 9:4202, “a court shall stay the trial of an action in order for arbitration to proceed if any party applies for such a stay and shows (1) that there is a written arbitration agreement and (2) the issue is referable to arbitration under | sthat arbitration agreement, as long as the applicant is not in default in proceeding with the arbitration.” International River Ctr. v. Johns-Manville Sales Corp., 02-3060, p. 3 (La.12/3/03), 861 So.2d 139, 141; see also Matthews-McCracken Rutland Corp. v. City of Plaquemine, 414 So.2d 756, 757 (La.1982) (holding that “[o]nce the court finds an agreement to arbitrate and a failure to comply therewith, the court shall order arbitration”),

The proper procedure for a party to raise the failure to submit to arbitration is either a dilatory exception of prematurity or a motion to stay. Frank L. Maraist and Harry T. Lemmon, 1 LOUISIANA CIVIL LAW TREATISE: CIVIL PROCEDURE, § 6.6, n. 28 (1999). In this case, DAS properly raised the issue of whether there was an agreement between the parties to arbitrate by filing a request for injunctive relief to stay the arbitration LLI commenced.

In addressing a motion to stay, the threshold inquiry a court must decide is whether the parties agreed to arbitrate their dispute, which is a two-fold inquiry: (1) whether there is a valid arbitration agreement, and (2) whether the dispute in question falls within the scope of that agreement. Lakeland Anesthesia, Inc. v. United Healthcare of Louisiana, Inc., OS-1662, p. 9 (La.App. 4 Cir. 3/17/04), 871 So.2d 380, 388.

“[A]ny doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration.” Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25, 103 S.Ct. 927, 941, 74 L.Ed.2d 765 (1983); see also Aguillard, 04-2804 at p. 18, 908 So.2d at 25. “Notwithstanding the strong presumption in favor of arbitration, the arbitration clause which is sought to be enforced must have |9a “reasonably clear and ascertainable meaning” in order to enforce arbitration. J. Caldarera & Co, v. Louisiana Stadium & Exposition Dist„ 98-294, p. 4 (La.App. 5 Cir. 12/16/98), 725 So.2d 549, 561 (quoting Kosmala v. Paul, 569 So.2d 158, 162 (La, App. 1st Cir.1990)). The question of whether there is an agreement to arbitrate is generally one for the court to decide based on state law contract principles. See Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 83, 123 S.Ct. 588, 154 L.Ed.2d 491 (2002); Saavedra v. Dealmaker Developments, LLC, 081239, pp. 6-7 (La.App. 4 Cir. 3/18/09), 8 So.3d 758, 762-63. Under the Louisiana Civil Code, the interpretation of a contract is the determination of the common intent of the parties. La. C.C. art.2045; Ganier v. Inglewood Homes, Inc., 06-0642, p. 3 (La.App. 4 Cir. 11/8/06), 944 So,2d 753, 756.

This court in the Lakeland case summarized the principles that apply in resolving the issue of whether a contract to arbitrate exists as follows:

• Because arbitration is a “creature or matter of contract,” a court cannot compel a party to submit to arbitration any disputes that the party has not agreed to submit, Larry E. Edmondson, DOMKE ON COMMERCIAL ARBITRATION § 1:2 (3rd ed. 2003) (“DOMKE”).
• A corollary of the fact that arbitration agreements are contracts is that such agreements must be interpreted by applying accepted rules of state contract law. DOMKE § 1:2.
• Louisiana courts have applied the Civil Code articles regulating the interpretation of contracts found in La. C.C. arts. 2045 to 2057 in interpreting arbitration agreements. Metro Riverboat Associates, Inc. v. Bally’s Louisiana, Inc., 97-1672, p. 7 (La.App. 4 Cir. 1/14/98), 706 So.2d 553, 558.
• Logically, since an arbitration agreement is a contract, an appellate court reviewing a trial court’s decision on a motion to compel arbitration applies the same standard of review as it would apply in reviewing a trial court’s decision interpreting a contract.
Im* Stated otherwise, an appellate court’s review of a district court’s decision finding the parties agreed to submit their dispute to arbitration “should proceed like review of any other district court decision finding an agreement between the parties, e.g., accepting findings of fact that are not ‘clearly erroneous’ but deciding questions of law de novo.’ ” Grigson v. Creative Artists Agency, L.L.C., 210 F.3d 524, 532 (5th Cir.2000)(Dennis, J., dissentingXquoting First Options of Chicago, Inc. v. Kap-lan, 514 U.S. 938, 943, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995)).

With those principles in mind, we turn to DAS’s assignment of error.

DISCUSSION

On appeal, DAS’s sole assignment of error is that the tidal court committed legal error by finding a valid arbitration agreement when there was no mutual consent between the parties to arbitration. The fact that the trial court found the parties’ conduct demonstrated consent, DAS contends, is manifestly erroneous.

The subject of this appeal, as noted earlier, is the “either/or” provision contained in the Agreement. DAS contends that because neither party selected the arbitration alternative (the “Dispute Resolution and Governing Law” provision), there is no agreement to arbitrate. As a result, DAS contends that the default | n method of dispute resolution—litigation—applies. DAS further contends that, contrary to LLI’s suggestion, the Agreement, by its terms, provided instructions to LLI that it needed to make a choice between the dispute resolution provisions in “B” before signing it. Specifically, DAS cites the heading to that provision, which reads: “SELECT ONE ‘B’ BELOW.” DAS also cites the principle that parties are presumed to know the content of a written contract they sign.

LLI counters that the instruction in the Agreement that DAS cites was intended by the unknown attorney who provided DAS with the form contract to apply to DAS, not to DAS’s clients. Continuing, LLI contends that the intent of that instruction was for DAS to delete one of the “Bs” from the form contract when it customized it for the particular client. In support, LLI cites the absence of any box or signature line on the page on which the dispute resolution provisions are located for selecting one of the “Bs.” LLI further contends that the Agreement makes arbitration available once DAS signs it. LLI emphasizes that there was only one place in the Agreement for DAS to sign and that by signing the Agreement, which it provided, DAS consented to arbitrate.

hiAgreeing with LLI, the trial court, in its written reasons for judgment, found that there was consent by signing. The trial court reasoned as follows: “[DAS] prepared the contract and signed it, and in doing so consented to arbitrate.” We disagree. To the extent the trial court relied on the fact DAS prepared the Agreement, we note, as DAS emphasizes, the Agreement expressly negates the general principle that ambiguous provisions are construed against the drafter. The Agreement provides as follows:

Each party has reviewed this Agreement, had the opportunity to have counsel review the Agreement, and, aecord-ingly, the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement. Section IX (H).

Moreover, the Agreement, which both parties signed, includes the two “Bs”, which are arguably conflicting dispute resolution provisions. Only one of those provisions authorizes arbitration. We thus cannot conclude that by signing the Agreement DAS unambiguously agreed to arbitrate. Instead, we conclude that the inclusion of both provisions renders the Agreement ambiguous.

In resolving the ambiguity presented by the Agreement, we find the analysis employed in J. Caldarera & Co. v. Louisiana Stadium and Exposition Dist., 98-294 (La.App. 5 Cir. 12/16/98), 725 So.2d 549, instructive. In that case, the issue was whether a construction contract included an agreement to arbitrate. In negotiating the contract, the parties struck the entire section entitled “ARBITRATION,” but failed to strike arbitration language in the preceding section entitled “RESOLUTION OF CLAIMS AND DISPUTES.” The language |iathat was retained provided that the architect’s decision will be made within seven days, “which decision shall be final and binding on the parties but subject to arbitration.”

The trial court in Caldarera found the contract included an agreement to arbitrate. Affirming, the appellate court concluded that deleting the arbitration section without striking or otherwise amending the resolution of claims and disputes section “raise[d] a question as to whether the parties intended the controversy to be ar-bitrable.” Caldarera, 98-294 at p. 6, 725 So.2d at 552. Continuing, the appellate court reasoned as follows:

In the hearing held on the issue, the only evidence presented was the contract, the supplemental contract and the general conditions of the contract. No testimony or other parole evidence was introduced to indicate the intent of the parties. In light of the Louisiana Civil Code requirements for the interpretation of contracts, the legislative policy favoring arbitration, the failure of defendant to prove that the parties’ intent was to delete arbitration and the presence of arbitration in paragraph 4.4.4, we find that the trial judge did not err in ordering arbitration.

Id. The appellate court in Caldarera thus identified the three relevant factors to be considered in resolving the ambiguity created by an agreement containing conflicting provisions regarding arbitration; the three factors are as follows: (1) extrinsic evidence of intent, (2) contract interpretation principles, and (3) the presumption favoring arbitration. See 7 Bruner & O’Connor CONSTRUCTION LAW § 21:87 (discussing Caldarera, supra, and noting these factors).

As in the Caldarera case, we find the inclusion of both “B” provisions—the “Dispute Resolution and Governing Law” and “Governing Law” provision—in the Agreement created an ambiguity regarding whether the parties intended to agree to [ ^arbitrate. Unlike in Caldarera, the parties in this case presented the trial court with extrinsic evidence of intent. Based on the extrinsic evidence and the Civil Code article on consent by performance, the trial court found the parties consented by performance to arbitration. In so finding, the trial court reasoned as follows:

Further, the parties consented by performance. Louisiana Civil Code article 1927 authorizes acceptance by performance. Mr. Lawrence testified that he could have selected one of the B’s, but also testified that he intended to give either party the option to select and use the “Dispute Resolution and Governing Law” provisions. In fact, both parties agreed to voluntarily engage in two me-diations, which ultimately were unsuccessful. Further, in January 2013, Delta threatened Louisiana Livery by referring it to the attorney fee provisions contained under the “Dispute Resolution and Governing Law” section. Finally, Mr. Lawrence testified that he does not oppose participating in arbitration; it is his counsel who does. Accordingly, in light of these facts, both parties accepted the arbitration and attorney fee provisions contained in the contract by performance.

As noted, DAS contends the trial court’s finding of consent by performance is manifestly erroneous. Quoting the language of La. C.C. art. 1927, DAS contends that the evidence of consent must be “clearly indicative of consent” and that the evidence relied upon by the trial court to find consent by performance is not clearly indicative of its consent to arbitrate. In support, DAS asserts the following contentions:

• Mediation is irrelevant. Mediation is often chosen even if there is no express mediation clause in an agreement. The fact the parties attempted mediation before is of no moment. The parties chose to mediate; neither was compelled to do so. By doing so, they did not manifest their intent to |^arbitrate. Moreover, evidence of mediation is analogous to evidence of settlement discussion, which generally is inadmissible. La. C.E. art. 408.
• Mr. Lawrence’s January 3, 2013 letter should be considered as part of “privileged settlement discussion” and not part of the record. DAS contends that it is “nothing more than a statement by a non-attorney in settlement discussions.”
• Mr. Lawrence’s deposition testimony that it was his attorney, not him, that opposed arbitration was misunderstood and mischaracterized by the trial court. His testimony is not evidence of consent to arbitrate.
• The trial court inappropriately focused upon the parties’ conduct after a dispute arose rather than their conduct manifesting their intent or meeting of the minds about the formation of an agreement. The proper focus regarding the agreement of the parties is at the time the agreement is made, not when a dispute arises.

As LLI points out, DAS never objected—based on La. C.E. art. 408 or any other ground—in the trial court to the evidence of its participation in the media-tions and Mr. Lawrence’s January 3, 2013 letter. As a result, LLI contends that this court should not consider these arguments made for the first time on appeal. See Scott v. Zaherí, 14-0726, p. 14 (La.App. 4 Or. 12/3/14), 157 So.3d 779, 788 (citing Rule 1-3, Uniform Rules—Courts of Appeal and noting that “[generally, issues not raised in the trial court will not be given consideration for the first time on appeal,”). Regardless, LLI contends that La. C.E. art. 408 would |1finot bar consideration of either DAS’s participation in mediation or Mr. Lawrence’s letter for purposes of establishing that DAS’s conduct was consistent with its acceptance by performance. We agree. Indeed, La. C.E. art. 408 expressly states that it “does not require exclusion when the evidence is offered for another purpose” than to prove liability for or invalidity of the claim or its amount.

As to Mr. Lawrence’s deposition testimony, the record reflects that Mr. Lawrence was asked why he did not want to participate in arbitration; he replied as follows: “Who said I didn’t want to participate [in an arbitration]?” Mr. Lawrence further testified that he was objecting to the arbitration because “[i]t’s my attorney’s advice then.” It cannot be concluded that the trial court was manifestly erroneous in finding that “Mr. Lawrence testified that he does not oppose participating in arbitration; it is his counsel who does.”

Finally, DAS’s contention that the trial court erred in focusing on the parties’ post-contract actions is unpersuasive. Performance, as LLI points out, follows the signing of a contract. The trial court thus could not determine whether there was consent by performance without considering the parties’ post-contract actions. Indeed, La. C.C. art.2053 provides that “a doubtful provision must be interpreted in light of ... the conduct of the parties before and after the formation of the contract.”

In sum, we find, contrary to DAS’s contention, that the trial court’s finding of consent by performance was not manifestly erroneous. Based on the extrinsic 117evidence presented, the pertinent Civil Code articles, and the policy favoring arbitration, we find no error in the trial court’s finding that the parties consented by performance to arbitrate disputes arising out of the Agreement.

DECREE

For the forgoing reasons, the judgment of the trial court is affirmed.

AFFIRMED

      . The only date on the Agreement is “12/16/2009,” which appears in a footer on each page of the document. The parties indicate that the Agreement became effective in January 2010.

      . The page of the Agreement on which the "B” provisions appeared contained nowhere for the parties to initial, sign, or check a box to accept or reject the arbitration option,

      . As LLI points out in its brief, the underlying dispute is that LLI alleges DAS breached the Agreement and that the breach caused the damages that LLI had to pay to settle litigation with third parties. DAS denies that it breached the Agreement or that any breach caused damages. The merits of the underlying dispute between the parties are not before us.

      . We note that the Agreement includes another provision regarding attorney’s fees, Section IX (C), which provides:
      In the event that any action or arbitration is brought by either party hereto as a result of a breach or default in any provision of this Agreement, the prevailing party in such action shall be awarded reasonable attorney’s fees and costs incurred by such party in such action in addition to any other relief to which the party may be entitled.

      . The American Arbitration Association (the “AAA”) also was named as a defendant; however, DAS voluntarily dismissed the AAA.

      . The Louisiana Arbitration Law is set forth in La. R.S. 9:4201 through 4217. La. R.S. 9:4201 provides:
      A provision in any written contract to settle by arbitration a controversy thereafter arising out of the contract, or out of the refusal to perform the whole or any part thereof, or an agreement in writing between two or more persons to submit to arbitration any controversy existing between them at the time of the agreement to submit, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.

      . La. R.S. 9:4202 provides:
      If any suit or proceedings be brought upon any issue referable to arbitration under an agreement in writing for arbitration, the court in which suit is pending, upon being satisfied that the issue involved in the suit or proceedings is referable to arbitration under such an agreement, shall on application of one of the parties stay the trial of the action until an arbitration has been had in accordance with the terms of the agreement, providing the applicant for the stay is not in default in proceeding with the arbitration.

      . The determination as to whether to stay or compel arbitration is a question of law. Billlieson v. City of New Orleans, 02-1993, p. 3 (La.App, 4 Cir. 9/17/03), 863 So.2d 557, 560 (citing Hennecke v. Campa, 96-0772 (La.App. 4 Cir. 5/21/97), 700 So.2d 521); Williams v. Keller Williams Realty, 14-0202, pp. 2-3 (La. App. 4 Cir. 11/5/14), 154 So.3d 605, 607.

      . We recently enunciated the standard of review applicable to construction of contracts in LHO New Orleans LM, L.P. v. MHI Leasco New Orleans, Inc., 02-0663, pp. 3-4 (La.App, 4 Cir. 11/20/02), 833 So.2d 1010, 1012, stating:
      The issue of whether or not the language of a contract is ambiguous is an issue of law subject to de novo review on appeal. Lake-land Anesthesia, Inc. v. Cigna Healthcare of Louisiana, Inc., 2001-1059, p. 3 (La.App. 4 Cir. 2/6/02), 812 So.2d 695, 697, quoting Bartlett Const. Co., Inc. v. St. Bernard Parish Council, 99-1186 (La.App. 4 Cir. 5/31/00), 763 So.2d 94, writ denied 2000-2322 (La. 11/03/00), 773 So.2d 142. The trial court’s interpretation of a contract is subject to the manifest error rule. Id. The manifest error rule provides that an appeals court may not simply substitute its own view of the evidence for the trial court's view, nor may it disturb the trial court's finding of fact so long as it is reasonable. Id.

      . "The default rule for resolution of disputes that the parties cannot resolve themselves is generally adjudication by a court.” Maurits Barendrecht and Berend R. de Vries, Fitting the Forum to the Fuss with Sticky Defaults: Failure in the Market for Dispute Resolution Services?, 7 Cardozo J. Conflict Resol. 83; 85 (2005). It is well settled, however, that the parties, by contract, may select another form of dispute resolution, such as arbitration. Id. The issue in this case is thus whether the parties did so.

      . In its discovery responses, DAS stated that an unknown attorney, who provides services to clients who are ASO organizations, provided the form contract to DAS. In his deposition, Mr. Lawrence testified that he scanned the form contract into his computer. He further testified that he did not have DAS’s regular attorney review the Agreement.

      . The extrinsic evidence presented included Mr. Lawrence’s and Mr. Dirks’ affidavits, Mr. Lawrence’s deposition testimony, and DAS's discovery responses.

      . La. C.C. art.1927 provides that consent can be "orally, in writing, or by action or inaction that under the circumstances is clearly indicative of consent.” See also La. C.C. art.2053 (providing that “a doubtful provision must be interpreted in light of the nature of the contract, equity, usages, and the conduct of the parties before and after the formation of the contract.’1)

      . La. C.E. art. 408 provides:
      In a civil case, evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept, anything of value in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount. Evidence of conduct or statements made in compromise negotiations is likewise not admissible. This Article does not require the exclusion of any evidence otherwise admissible merely because it is presented in the course of compromise negotiations. This Article also does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice of a witness, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.

      . Mr. Lawrence also testified that it was not error to include both of the "B” provisions in the Agreement.

      . Given our holding that the trial court did not err in finding consent by performance, we pretermit addressing LLI's other arguments regarding contractual interpretation, detrimental reliance, and estoppel.


source: Caselaw Access Project

author: EDWIN A. LOMBARD, Judge. LOVE, J.,

license: Public Domain

text:
    STATE of Louisiana v. Ryan LANDRY.
    No. 2015-K-0485.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 7, 2015.
   EDWIN A. LOMBARD, Judge.

|! After review of the relator’s writ application in light of the applicable law, we do not find that the trial court abused its discretion in denying the relator’s motion to suppress the evidence and statements.

“[P]urely as an objective matter, the officers ultimately did nothing more than what the law entitled them to do by detaining defendant after observing him commit a misdemeanor offence in their presence and searching him for weapons and evidence, without regard to whether they had an articulable and particularized concern for their safety, and then arresting him, albeit not for the offense for which they initially had probable cause.” State v. Butler, 12-2359, p. 5 (La.5/17/13), 117 So.3d 87, 90 (finding search constitutional even if police had no actual subjective intent to arrest the defendant for riding his bicycle on the sidewalk, reversing State v. Butler, 11-0985 (La.App. 4 Cir. 10/3/12), 101 So.3d 121, (pat-down of defendant being detained on an investigatory stop required some articulation of facts to justify the frisk and that the determination of whether probable cause existed at the time of the search was an objective determination)); see also State v. Green, 11-2425 (La.2/10/12), 79 So.3d 1013 (2012) (officer’s lawful stop of defendant for | commission of a misdemeanor municipal code violation offense was based on probable cause, “entitling the officer to conduct an immediate search of defendant,” reversing State v. Green, 11-1317 (La.App. 4 Cir. 10/13/11) (barring sworn exceptional circumstances, a police officer does not have the authority to automatically arrest a person for municipal code violation)). Thus, under current Louisiana jurisprudence, the police had probable cause to arrest the defendant for a municipal code violation prohibiting those over the age of 15 from riding a bicycle on a sidewalk and, therefore, the trial court did not abuse its discretion in denying the defendant’s motion to suppress the cell phone and gun recovered from his pants pocket after being stopped upon suspicion of two municipal code violations.

Similarly, although it is undisputed that the defendant was not advised of his Miranda rights in conjunction with the stop and search in this case or prior to being asked his name, age, and address, the police officer’s field interview (recorded by his body-camera) asked for no more information than an individual might supply in response to booking questions as a routine incident of arrest and, therefore, did not amount to interrogation for Mir randa purposes. State v. Smith, 00-1838, p. 4 (La.5/25/01), 785 So.2d 815, 818 (citing Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980)). Thus, even if the defendant’s age (over 15) constitutes an element of the municipal code violation, the trial court did not abuse its discretion in denying the relator’s motion to suppress the statements recorded by the police body-camera.

New Orleans, Louisiana this-day of-,-

/s/ JUDGE EDWIN A. LOMBARD

/s/ JUDGE TERRI F. LOVE

/s/ JUDGE DANIEL L. DYSART

WRIT DENIED

LOVE, J., concurs in result with reasons.

LOVE, J.,

concurs in result with reasons.

I respectfully concur in the result. I concur in the majority’s decision to deny the writ; however, I would deny the writ on the showing made. The relator has failed to comply with Local Rule 24. Consequently, I find this Court is not in a position to review evidence from the body camera video footage, which I find necessary to address the merits of the relator’s writ application.

The hearing transcript indicates that the State relied on the video footage to establish its timeline of events in argument before the trial court. Likewise, the testifying officers were questioned about the sequence of events as presented in video footage. Finally, the hearing transcript suggests that the trial court relied on the body camera video footage in denying the motion to suppress evidence and statement. Therefore, I would order the relator to comply with Local Rule 24 so that this Court may adequately review the merits of relator’s application for supervisory review.

For these reasons, I find that this Court is not in a position to address the merits of the relator’s writ application in its current state, and would deny the writ on the showing made.

      .Local Rule 24—ELECTRONIC AUDIO AND VIDEO EVIDENCE
      1. All electronic audio and video evidence submitted to the Court shall be in the Windows Media Audio (WMA) or Windows Media Video (WMV) format to ensure that the evidence can be played on the default Windows Media Player.
      2. In the event that audio or video evidence cannot be converted to the required formats, the software or codec required to view the evidence must be provided. This must include a description of the software or codec and instructions on how to install and use the software. Counsel for the parties must also inform the clerk of court in writing of these circumstances within five (5) days of the lodging of the record.
      3. The following information must be provided with all submitted electronic evidence:
      Title of file
      Brief description of what is contained in the file
      Length of file
      Number of files
      File format
      Guarantee of no virus
      The antivirus software that was used to scan the files and the date of the virus definitions
      It is the exclusive responsibility of counsel for all parties to ensure that all electronic audio and video evidence works properly before submitting it to the Court.

        Adopted by the Court En Banc January 20, 2010

        Effective February 1, 2010


author: DRAKE, J.

text:
    Harriet BARRINGER, Hugh Barringer, Sandra Kaigler, John Kaigler, Ferlessa Jones, Cassandra Jingles, Keith Jingles, Lisa Supple, Edward Supple, Jr., Nancy White, and Lee White v. Enizs ROBERTSON, Helen Travis, Johnnie W. Jones, Richard L. Stalder for the Louisiana Correctional Institute for Women, and Linda Guidroz for the Louisiana State Penitentiary.
    No. 2015 CA 0698.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 2, 2015.

      J. Arthur Smith, III, Adrienne D. Rac-hell, Baton Rouge, LA, Attorneys for Plaintiffs/Appellants, Lisa Supple, Edward Supple, Jr., Nancy White, and Lee White.
    Amanda G. Clark, Mason C. Johnson, Erica M. Schirling, Baton Rouge, LA, Attorneys for Defendants/Appellees, Enizs Robertson, Helen Travis, Johnnie W. Jones, Richard L. Stalder for the Louisiana Correctional Institute for Women, and Linda Guidroz for the Louisiana State Penitentiary.
    Before WHIPPLE, C.J., WELCH, and DRAKE, JJ.
   DRAKE, J.

|2The plaintiffs-appellants, Nancy White and Lisa Supple—former employees at the Louisiana Correctional Institute for Women (LCIW)—and their respective spouses, appeal a designated partial final judgment of the trial court dismissing their claims for negligent infliction of emotional distress, vacating a previous order granting them leave to file an amended petition, and denying them leave to file an. amended petition. Por the following reasons, we reverse and remand.

FACTS AND PROCEDURAL HISTORY

This appeal follows remand of the matter to the trial court by a five-judge panel of this court. See Barringer v. Robertson, 2007-0802 (La.App. 1 Cir. 10/31/08), 2008 WL 4763539 (unpublished). White, a registered nurse (RN), and Supple, a licensed practical nurse (LPN), filed a petition for damages on June 22, 2001, and named Enizs Robertson, Helen Travis, Linda Gui-droz, Johnnie W. Jones, and Richard L. Stalder, Secretary, as defendants. The plaintiffs pled facts alleging that their LCIW supervisor, Enizs Robertson, subjected them to intentional infliction of emotional distress (IIED), negligent infliction of emotional distress (NIED), harassment, defamation of character, and invasion of privacy. The plaintiffs alleged the defendants were liable unto them pursuant to La. C.C. [ sart. 2315. Their spouses joined in the petition, alleging entitlement to loss of consortium damages. See La. C.C. art. 2315(B).

Subsequent to the defendants’ answer of the lawsuit, generally denying the allegations, the matter proceeded to a trial by jury on April 24-27, 2006. White and Supple rested following the presentation of their evidence. The defendants then moved for a directed verdict, which the trial court granted, dismissing all of White and Supple’s claims, with prejudice. White and Supple appealed. Barringer, 2008 WL 4763539, at *1.

This court reversed the trial court’s judgment granting the defendants’ motion for a directed verdict and dismissing all of the plaintiffs’ claims. Focusing solely on the plaintiffs’ claims for NIED, this court held:

Based on the testimonial and documentary evidence, we find substantial evidence opposed to the motion. The record contains ample evidence for reasonable and fair-minded jurors in the exercise of impartial judgment to reach different conclusions on whether White and Supple (and their husbands for loss of consortium) are entitled to recover damages for [NIED] based on Robertson’s conduct.

Barringer, 2008 WL 4763539, at *2. This court then remanded the matter to the trial court “to be heard before a jury.” Barringer, 2008 WL 4763539, at *3.

Following appeal and remand, White and Supple filed an amended petition for damages on September 15, 2011. The plaintiffs pled no new facts, nor did they name any additional defendants. The plaintiffs added allegations of racial discrimination and retaliation pursuant to La. R.S. 23:332(A), La. Const, art. I, § 3, 42 U.S.C. 1981, and 42 U.S.C. 1983. Supple added an allegation of disability discrimination pursuant to La. R.S. 23:323(B)(2). The plaintiffs also requested punitive damages and attorney’s fees. On September 19, 2011, the trial court signed an order granting the plaintiffs leave of court to file their amended petition 14for damages. The defendants answered the plaintiffs’ amended petition for damages on February 23, 2012, asserting general denials and maintaining their answers and defenses contained in their answer .to the original petition.

On July 18, 2013, the defendants filed a motion for summary judgment. That same day, the defendants also filed a motion for leave to file a supplemental answer, affirmative defenses, and exceptions of prescription, res judicata, and lack of subject matter jurisdiction. The trial court granted the defendants leave to file their supplemental answer, defenses, and exceptions. The defendants urged dismissal of White and Supple’s claims for NIED through the declinatory exception raising the objection of lack of subject matter jurisdiction, arguing that the plaintiffs’ claims were subject to the exclusive remedy provisions of the Louisiana Workers’ Compensation Act, La. R.S. 23:1032. The defendants also urged dismissal of White and Supple’s claims for racial discrimination and retaliation, and Supple’s claim for disability discrimination, through the peremptory exception raising the objection of prescription, arguing that claims under La. R.S. 23:332(A) and 23:323(B)(2), 42 U.S.C.1981, and 42 U.S.C.1983 are subject to a one-year liberative prescriptive period, and as such, the plaintiffs’ assertions of such claims in their amended petition were prescribed. The defendants also urged dismissal of the plaintiffs’ claims for defamation and invasion of privacy through the peremptory exception raising the objection of res judicata, arguing that White and Supple failed to appeal those claims following the rendition of the May 10, 2006 judgment granting the defendants’ motion for directed verdict. The plaintiffs opposed the defendants’ exceptions. Wé noté that in their opposition, the plaintiffs stated their intention not to pursue any claims for invasion of privacy or defamation at trial in this matter.

The trial court set the hearing on the defendants’ motion for summary judgment and exceptions for August 7, 2013, with a jury trial set to begin on 1 ¡August 19, 2013. At the hearing on the defendants’ motion for summary judgment and exceptions, the trial court denied the defendants’ motion for summary judgment. The trial court also dismissed as moot the defendants’ peremptory exception raising the objection of res judicata. The trial court sustained the defendants’ declinatory exception raising the objection of subject matter jurisdiction, dismissing White and Supple’s claims for NIED. Through oral motion of the defendants, the. trial court converted the defendants’ peremptory exception raising the objection of prescription into a motion to vacate the September 19, 2011 order, which granted the plaintiffs leave to file their amended petition for damages, and then the trial court granted the motion to vacate. The trial court also denied the plaintiffs’ oral motion for leave to file their amended petition. The trial court signed a judgment on November 20, 2013, and after determining there was no just cause for delaying appellate review of the ruling, designated the judgment as a final, partial judgment. See La. C.C.P. art. 1915(B). The trial court gave written reasons for the Article 1915(B) certification on November 21, 2013.

The plaintiffs now appeal.

I cJLAW AND DISCUSSION

Dismissal of Plaintiffs’ NIED Claim for Lack of Subject Matter Jurisdiction

The first issue before this court is whether the trial court erred in sustaining the defendants’ objection of lack of subject matter jurisdiction and dismissing the plaintiffs’ claims for NIED. Subject matter jurisdiction is a threshold issue insofar as a judgment rendered by a court that has no jurisdiction over the subject matter of the action or proceeding is void. La. C.C.P. art. 3. Jurisdiction is the legal power and authority of a court to hear and determine an action of the parties and to grant the relief to which they are entitled. La. C.C.P. art. 1. Subject matter jurisdiction is the legal power and authority of a court to hear and determine a particular class of actions or proceedings, based upon the object of the demand, the amount in dispute, or the value of the right asserted. La. C.C.P. art. 2. The issue of subject matter jurisdiction addresses the court’s authority to adjudicate the cause before it. The issue may be raised at any time and at any stage of an action. Whittenberg v. Whittenberg, 97-1424 (La.App. 1 Cir. 4/8/98), 710 So.2d 1157, 1158. Subject matter jurisdiction cannot be waived by the parties. La. C.C.P. art. 925; Iberia-Bank v. Live Oak Circle Dev., L.L.C., 2012-1636 (La.App. 1 Cir. 5/13/13), 118 So.3d 27,30.

Where the lack of subject matter jurisdiction is not apparent on the face of the petition, the burden is on the defendant to offer evidence in support of the declinatory exception. La. C.C.P. art. 930; Dickens v. Louisiana Correctional Institute for Women, 2011-0176 (LaApp. 1 Cir. 9/14/11), 77 So.3d 70, 73. When evidence is introduced at trial on an objection of lack of subject matter jurisdiction, appellate review is governed by the rules applicable to review of facts. See Bates v. Allstate Ins. Co., 2010-0234 (La.App. 4 Cir. 9/29/10), 48 So.3d 1141, 1143. Thus, we will not disturb the trial court’s finding of fact in the absence of |/‘manifest error” or unless it is “clearly wrong.” See Rosell v. ESCO, 549 So.2d 840, 844 (La.1989).

The defendants argued that the plaintiffs’ NIED claims are subject to the exclusive remedy provisions of the Louisiana Workers’ Compensation Act, La, R.S. 23:1032 et seq., and as such, the trial court lacked subject matter jurisdiction to hear those negligence claims. The plaintiffs argue that the trial court erred in sustaining the defendants’ exception and erred by faffing to apply the “law of the case” established by the October 31, 2008 decision of this court in the same matter. See Bar-ringer, 2008 WL 4763539.

The law-of-the-case doctrine embodies the principle that an appellate court generally does not revisit its own rulings of law on a subsequent appeal in the same case. State ex rel. Div. of Admin., Office of Risk Mgmt. v. Natl. Union Fire Ins. Co. of Louisiana, 2013-0375 (La. App. 1 Cir. 1/8/14), 146 So.3d 556, 562. The law-of-the-case doctrine is a discretionary guide which relates to: (a) the binding force of a trial judge’s ruling during the later stages of trial; (b) the conclusive effects of appellate rulings at trial on remand; and (c) the rule that an appellate court ordinarily will not reconsider its own rulings of law on a subsequent appeal in the same case. State ex rel. Div. of Admin., Office of Risk Mgmt., 146 So.3d at 562. It applies to all prior rulings or decisions of an appellate court or the supreme court in the same case, not merely those arising from the full appeal process. State ex rel. Div. of Admin., Office of Risk Mgmt., 146 So.3d at 562. The reasoning behind the law-of-the-case doctrine is to avoid re-litigation of the same issue, to promote consistency of result in the same litigation, and to promote efficiency and fairness to both parties by affording a single opportunity for the argument and decision of the matter at issue. State ex rel. Div. of Admin., Office of Risk Mgmt., 146 So.3d at 562. Re-argument in the same case of a previously decided point will be barred where there is simply a doubt as to the correctness of the earlier ruling. State ex \¿rel. Div. of Admin., Office of Risk Mgmt., 146 So.3d at 562. The law-of-the-case doctrine is not an inflexible law, thus appellate courts are not absolutely bound thereby and may exercise discretion in application of the doctrine. State ex rel. Div. of Admin., Office of Risk Mgmt., 146 So,3d at 562-63. The doctrine is not applied in cases of palpable error or where, if the law of the case were applied, manifest injustice would occur. State ex rel. Div. of Admin., Office of Risk Mgmt, 146 So.3d at 562-63. The doctrine applies only against those who were parties to the case when the earlier decision was rendered, and who thus have had their day in court. State ex rel. Div. of Admin., Office of Risk Mgmt, 146 So.3d at 562-63.

In the prior decision of this court in the same matter, the court stated:

The trial court dismissed Supple and White’s claims for negligent infliction of emotional distress based on the exclusivity provision in the workers’ compensation law. Although Supple and White have challenged this ruling, on appeal, defendants concede that the claim for negligent infliction of emotional distress is not barred by the exclusivity provision of workers’ compensation [citing Richardson v. Home Depot USA, 2000-0393 (La.App. 1 Cir. 3/28/01), 808 So.2d 544 (wherein the court held that the exclusive remedy provision of the Louisiana Workers’ Compensation Act does not bar all negligent infliction of emotional distress claims filed in tort against an employer.) ]. Accordingly, the issue before us is whether, based on the evidence presented, a reasonable juror could have concluded that White and Supple satisfied their burden of proving entitlement to recovery for negligent infliction of emotional distress.

Barringer, 2008 "WL 4763539, at *2. This court went on to state:

Based on the testimonial and documentary evidence, we find substantial evidence opposed to the motion. The record contains ample evidence for reasonable and fair-minded jurors in the exercise of impartial judgment to reach different conclusions on whether "White and Supple (and their husbands for loss of consortium) are entitled to recover damages for negligent infliction of emotional distress based on Robertson’s conduct.

| aThis court then reversed the trial court’s judgment dismissing all the plaintiffs’ claims, and remanded the matter to be heard before a jury Barringer, 2008 WL 4763539, at *3.

In the reversal of the trial court’s judgment in the previous appeal, this court expressly ordered that upon remand of the case to the trial court, the matter (specifically, the NIED claims) would be heard before a jury. No writs were taken to the Louisiana Supreme Court in the previous appeal. This issue is now final and the law of the case.

Based on our review of the record, as well as the applicable law, there is no indication this court committed palpable error in the previous appeal, nor is there any indication that if the law of the case were applied in this instance, manifest injustice would occur. Thus, the trial court erred in sustaining the defendants’ objection of lack of subject matter jurisdiction and dismissing the plaintiffs’ claims for NIED. This assignment has merit.

Denial of Leave to Allow Plaintiffs to File Amended Petition

The second issue before this court is whether the trial court erred in: (i) orally converting the defendants’ peremptory exception raising the objection of prescription into a motion to vacate the September 19, 2011 order granting plaintiffs leave to file their amended petition, and granting the motion to vacate; and (ii) denying the plaintiffs’ motion for leave to file their amended petition.

The Louisiana Civil Law Treatise, Civil Procedure § 6:10 (2d ed.), provides:

Courts and counsel frequently treat the terms supplemental pleading and amended pleading as | insynonymous. However, they are separate concepts. An amended pleading either restates the allegations of a claim or defense which were imperfectly stated, or adds a new claim or defense which existed, but was not pleaded, when the original pleading was filed. A supplemental pleading sets forth a new claim or defense, or an item of damages, which arose after the filing of the original pleading.
The distinction is important, because the rules governing amended pleadings are much more liberal. Amendment sometimes may be effected without leave of court, and pre-amendment notice to the opposing party may not be required. A supplemental pleading is permissible only if there is sufficient connexity with the claim or defense initially asserted, and only after a contradictory hearing against the opposing party.

1 La. Civ. L. Treatise, Civil Procedure § 6:10 (2d ed.) (internal citations omitted).

After an answer has been filed, the authorization of the filing of an amending petition is within the discretion of the trial judge. La. C.C.P. arts. 1151 and 1155; Heritage Worldwide, Inc. v. Jimmy Swaggart Ministries, 95-0484 (La.App. 1 Cir. 11/16/95), 665 So.2d 523, 527, writ denied, 96-0415 (La.3/29/96), 670 So.2d 1233. Thus, a trial judge’s ruling granting an amendment to the pleadings will not be disturbed on appeal unless an abuse of discretion has occurred that indicates a possibility of resulting injustice. Rainey v. Entergy Gulf States, Inc., 2001-2414 (La.App. 1 Cir.11/8/02), 840 So.2d 586, 589, on reh’g., 2001-2414 (La.App. 1 Cir. 6/25/04), 885 So.2d 1193. Amendments should be permitted if: (1) the movant is acting in good faith; (2) the amendment is not being used as a delaying tactic; (3) the opponent will not be unduly prejudiced; and (4) the trial will not be unduly delayed. Rainey, 840 So.2d at 589-90. Good faith is a reasonable belief that the facts alleged in the proposed amendment are true Rainey, 840 So.2d at 590.

We must determine whether the plaintiffs’ pleading entitled “Amended Petition for Damages” constitutes an “amendment” or a “supplement.” A supplemental pleading differs from an amended pleading in that an amended hipleading involves matters that occurred before the original complaint was filed, which were either overlooked by the pleader or were unknown to him at the time, while a supplemental pleading covers issues or causes of action that have arisen since the filing of the original petition, which relate to the issues or actions contained in the original petition. Gilchrist Const Co., L.L.C. v. State, Dept. of Transp. and Dev., 2013-2101 (La.App. 1 Cir. 3/9/15), 166 So.3d 1045, 1051, writ denied, 2015-0877 (La.6/30/15), 172 So.3d 1097.

Under La. C.C.P. art. 1151, a petition may be amended after an answer has been filed “by leave of court.” On September 19, 2011, the trial court signed the bottom portion of the amended petition entitled “Order,” which stated that the plaintiffs were “GRANTED leave of Court to file this Amended Petition for Damages.” Thus, La. C.C.P. art. 1151 was satisfied. Furthermore, the plaintiffs pled no new facts, nor did they name any additional defendants. The plaintiffs merely added allegations of racial discrimination and retaliation pursuant to La. R.S. 23:332(A), La. Const, art. I, § 3, 42 U.S.C. 1981, and 42 U.S.C. 1983 under the facts pled in their original petition and presumably under the facts to be established at trial. Additionally, Supple added an allegation of disability discrimination pursuant to La. R.S. 23:323(B)(2). The racial discrimination and retaliation claims, as well as the disability discrimination claim, related to matters that occurred before the original petition for damages was filed. These claims were either overlooked by the pleaders or were unknown to them at the time. Furthermore, it does not appear, based on our review of the record, that the plaintiffs are acting in bad faith, using their amended petition as a delaying tactic, or unduly prejudicing the defendants. While the defendants argue that the plaintiffs’ amended petition for damages was filed in 2011, ten years after thej^filing of the original petition for damages, we note that a jury trial took place in 2006 and after the plaintiffs appealed that judgment to this court following the trial, the decision in the appeal was not handed down until 2008.

Thus, pursuant to La. C.C.P. art. 1153, the racial discrimination, retaliation, and the disability discrimination claims arose out of the conduct, transaction, and occurrence set forth in the original pleading; therefore, the amendments relate back to the date of the filing of the original pleading. We hold that the trial court abused its discretion in granting the defendants’ motion and vacating the September 19, 2011 order granting plaintiffs leave to file their amended petition, as well as in denying the plaintiffs’ leave to file their amended petition. This assignment of error has merit.

DECREE

Therefore, the portion of the November 20, 2013 judgment of the trial court that sustained the defendants’ declinatory exception raising the objection of subject matter jurisdiction is reversed. Furthermore, the portion of the November 20, 2013 judgment of the trial court that granted the defendants’ motion to vacate the September 19, 2011 order granting the plaintiffs leave to file their amended petition for damages is reversed. Finally, the portion of the judgment that denied the plaintiffs leave to file their amended petition for damages is reversed. The judgment is affirmed in all other aspects, and we remand this matter to the trial court for further proceedings consistent with the views expressed herein. All costs of this appeal, in the amount of $3,115.00, are assessed against the defendants.

REVERSED IN PART; AFFIRMED IN PART; REMANDED.

WELCH J., concurs in result without reasons.

      . Several other co-employees who were originally named as plaintiffs in this suit dismissed their claims against the defendants leaving only those claims of White, Supple, and the plaintiff, Sandra Kaigler; however, Kaigler did not appeal the dismissal of her claims in the first appeal of this matter, and thus, that judgment of dismissal acquired the authority of the thing adjudged. See Barringer, 2008 WL 4763539, at *1 n. 1, see also La. C.C.P. art. 2166 and Nunez v. Commercial Union Ins. Co., 2000-3062 (La.2/16/01), 780 So.2d 348, 349 (per curiam).

      .We note that the May 10, 2006 final judgment and the November 20, 2013 designated partial final judgment of the trial court include the State of Louisiana, through the Department of Public Safety and Corrections (DPSC), as a named defendant; however, based on the record, the DPSC has never been named or joined as a defendant in this lawsuit by any party.

      . It is undisputed that White and Supple were classified civil service employees; however, White seeks damages beyond the scope of those of the Commission’s jurisdiction, and Supple voluntarily resigned from her civil service employment. Thus, their claims are not circumscribed by the exclusive jurisdiction of the Commission. See Baninger, 2008 WL 4763539, at ⅜1 n. 2; see also McCain v. City of Lafayette, 98-1902 (La.App. 3 Cir. 5/5/99), 741 So.2d 720, 724-28.

      . "Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it." La. C.C. art. 2315(A).

      . The plaintiffs moved to reduce costs on appeal, and a hearing on their motion was held on May 22, 2014, wherein the trial court ordered the plaintiffs to pay $6,135.81 for their appeal. The Iberville Parish Clerk of Court moved to dismiss the appeal when the plaintiffs failed to pay their appeal charges. The trial court dismissed the plaintiffs’ appeal on July 28, 2014. Following a hearing on the plaintiffs’ motion for reconsideration and to vacate the July 28, 2014 order dismissing the plaintiffs’ appeal, the trial court vacated the order of dismissal, reinstated the plaintiffs' appeal, and ordered the plaintiffs to pay the previously ordered sum of $6,135.81. We also note that the trial court granted the plaintiffs a continuance of the trial date, pending the plaintiffs' appeal of the November 20, 2013 judgment to this court.

      . Although we pretermit discussion of whether orally converting a peremptory exception raising the objection of prescription into a motion to vacate an order of the court is a proper procedural device, we do note, however, that it was an unusual procedural action undertaken by the trial court.

      . We note that although an interlocutory judgment, such as a denial of a motion for leave to file an amended petition, is not generally appealable, it is subject to review by an appellate court when an appealable judgment is rendered in the same case. See Wright v. Bennett, 2004-1944 (La.App. 1 Cir. 9/28/05), 924 So.2d 178, 190.

      . We note that pursuant to the designation of the record to reduce the plaintiffs’ appeal costs, the transcript of the jury trial held April 24-27, 2006, was not made part of the record on appeal in this instance.


author: TERRI F. LOVE, Judge.

text:
    Valerie L. TITUS and Mark J. Titus v. Tim D. WILSON, Sr., et al.
    No. 2015-C-0575.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 4, 2015.

      Garald P. Weller, Esq., Metairie, LA, for Defendants/Relators, James M. Ardoin, III, Esq. and Ardoinlaw, PLLC.
    Robert H. Matthews, Pauline M. Warri-ner, Matthews & Warriner, LLC, New Orleans, LA, and John Love Norris, IV, New Orleans, for Plaintiff/Respondent, Mark J. Titus.
    (Court composed of Chief Judge JAMES F. McKAY III, Judge TERRI F. LOVE, Judge ROSEMARY LEDET).
   TERRI F. LOVE, Judge.

|,The relator filed suit against his former attorney for allegedly committing malpractice by advising him to agree to a plea agreement in a federal criminal case. The trial court first held that the attorney’s actions committed on or after being admitted pro hac vice were perempted pursuant to La. R.S. 9:5605, and allowed the relator to amend his petition. Subsequently, the trial court conducted a hearing on the attorney’s exceptions of peremption, no cause of action, and motion for summary judgment, which the trial court denied. Relator now seeks supervisory review of the trial court’s denials. We find that peremption does not apply to acts committed by an out-of-state attorney prior to his admission pro hac vice. Alleged acts of negligence prior to pro hac vice admission are subject to a prescriptive period of one year. Under the facts and circumstances of this case, the doctrine of continuous representation does not apply. Thus, Mr. Titus’ claims were prescribed. The writ is granted.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Mark J. Titus retained Paul H. Villalo-bos, a Louisiana lawyer, to represent him in conjunction with a federal criminal investigation. James Ardoin III, and I2ARDOINLAW, PLLC., from Texas, (“Ardoin defendants”) were later hired for Mr. Ardoin’s knowledge and experience in the field of federal criminal law. In June 2011, Mr. Ardoin began advising Mr. Titus regarding his impending charges. On June 20, 2011, Mr. Titus signed a written plea agreement. Following, on June 29, 2011, he was charged with eighteen counts of mail fraud by bill of information, which included the information that the government would recover $1,200,320.00 from him as the proceeds of his fraud. The bill of information included a provision that if the proceeds of Mr. Titus’ fraud were unavailable, then the government would recover the money from his personal property.

On August 22, 2011, Mr. Ardoin was granted pro hac vice admission for this matter. Subsequently, on February 15, 2012, the United States Attorney’s office filed a Motion for Preliminary Order of Forfeiture against Mr. Titus. The motion claimed that Mr. Titus violated his plea agreement by “engaging in continued criminal activity” by making structured transactions to conceal money from the government. On June 3, 2012, Mr. Titus e-mailed Mr. Ardoin to express his displeasure about the government seeking forfeiture of his property.

On August 5, 2013, Mr. Titus filed suit against Tim Wilson, Sr.; Tim D. Wilson Investigations, Incorporated; Mr. Villalo-bos; and the Ardoin defendants alleging malpractice and negligence. Mr. Titus contended that the reason he entered into the plea agreement was because the defendants assured him that an oral “side deal” was reached wherein the government agreed not to seek the forfeiture of his personal property to satisfy the $1,200,320.00 judgment.

The Ardoin defendants, as well as Mr. Villalobos, filed peremptory exceptions of peremption contending “that Titus had notice that his property was going to be forfeited when he signed the guilty plea of June 20, 2011 that expressly ^acknowledged the forfeiture.” The trial court held that Mr. Titus had notice no later than June 3, 2012, that the government was seeking forfeiture of his personal property. Accordingly, pursuant to La. R.S. 9:5605, Mr. Titus’ legal malpractice claims regarding acts committed after Mr. Ardoin was admitted pro hac vice were perempted, since they were filed over a year after June 3, 2012. The trial court granted Mr. Titus thirty days to amend his petition to state a claim against Mr. Ardoin for acts occurring prior to his admission pro hac vice. Mr. Titus’ amendment to his petition restated his legal malpractice claims, but asserted Mr. Ardoin’s negligence. Accordingly, the Ardoin defendants filed another peremptory exception of peremption, an exception of no cause of action, and a Motion for Summary Judgment. The trial court overruled the exception of peremption/prescription, overruled the exception of no cause of action, and denied the Motion for Summary Judgment.

The Ardoin defendants noticed then.’ intent to seek a writ of supervisory review and timely filed this application. They contend that the trial court erred by denying relief because Mr. Titus’ claims regarding Mr. Ardoin’s alleged acts of negligence were perempted and prescribed prior to the filing of the petition on August 5, 2013.

STANDARD OF REVIEW

Appellate courts review legal questions, like the denial of peremptory exceptions, de novo. Robert v. Robert Mgmt. Co., LLC, 11-0406, p. 3 (La.App. 4 Cir. 12/7/11), 82 So.3d 396, 398. “Appellate courts review peremptory exceptions by reviewing the entire record to ‘determine whether the trial court was manifest ly erroneous with its factual conclusions.’ ” Metairie III v. Poche’ Const., Inc., 10-0353, p. 4 (La.App. 4 Cir. 9/29/10), 49 So.3d 446, 449, quoting Patriot American Hospitality Partnership, LP v. Mississippi Land Holdings, Inc., 06-0601, p. 3 (La. App. 4 Cir. 12/13/06), 948 So.2d 249, 251.

PEREMPTION

The Ardoin defendants seek supervisory review of the trial court’s denial of their peremptory exception of peremption/pre-scription because Mr. Ardoin was “authorized” to practice law prior to being admitted pro hac vice. Therefore, they contend that peremption applies, as outlined in La. R.S. 9:5605.

“Peremption is a period of time fixed by law for the existence of a right.” Rando v. Anco Insulations Inc., 08-1163, p. 19 (La.5/22/09), 16 So.3d 1065, 1082. “The right is extinguished upon the expiration of the peremptive period.” Id. “When the peremptive period has run, the cause of action itself is extinguished unless timely exercised.” Id. “Peremption may not be renounced, interrupted, or suspended.” La. C.C. art. 3461. “When an exception of prescription is filed, ordinarily, the burden of proof is on the party pleading prescription or peremption.” Metairie III, 10-0353, p. 4, 49 So.3d at 449. “However, when prescription or peremption is evident on the face of the pleadings, the burden shifts to the plaintiff to show the action has not been perempted.” Id.

The Ardoin defendants assert that all of Mr. Ardoin’s actions were encompassed by La. R.S. 9:5605 because he was “authorized” to practice law in Louisiana. We find this argument lacks merit. La. R.S. 9:5605(A) provides that an action for legal malpractice shall be filed within “one year from the date of the alleged act, omission, or neglect, or within one year from the date that the alleged act, omission, or neglect is discovered or should have been discovered.” The trial court held that “the one-year peremptive period provided by La. R.S. 9:5605 does not apply to an out-of-state attorney’s representation of a client prior to his pro hac \ ¡(vice admission.” We agree. The statute provides that the peremptive period applies to “any attorney at law duly admitted to practice in this state.” La. R.S. 9:5605(A). Mr. Ardoin was not “duly admitted” prior to the trial court granting his motion for pro hac vice status. La. R.S. 9:5605 also states that the peremptive period applies to claims regarding acts of alleged legal malpractice of “any professional corporation, company, organization, association, enterprise, or other commercial business or professional combination” that “are authorized by the laws of this state to engage in the practice of law.” La. R.S. 9:5605. Thus, we find that the adjective “authorized” modifies the commercial businesses.

This Court also finds the matter of Brennan’s, Inc. v. Edward Colbert, et al., instructive. In Brennan’s, the trial court found that the peremptive period of La. R.S. 9:5605 only applies to attorney’s “duly admitted” in Louisiana. The trial court further held that an out-of-state attorney was not “duly admitted” in Louisiana until pro hac vice admission was granted. On supervisory review, this Court denied writs. Brennan’s, Inc. v. Edward Tuck Colbert, et al., 08-2573 (La.1/9/09), 998 So.2d 721. Subsequently, the Louisiana Supreme Court unanimously denied writs. Brennan’s, Inc. v. Edward Tuck Colbert, et al., unpub., 2008-2573 (La.01/09/09). Accordingly, we find no error in the trial court’s finding, as Mr. Ardoin was not yet admitted pro hac vice in Louisiana, and was therefore, not “duly admitted.”

PRESCRIPTION

Although we find that the peremptive period provided by La. R.S, 9:5605 does not apply to any acts committed by the Ardoin defendants prior to Mr. Ardoin being admitted pro hac vice, we now address whether Mr. Titus’ claims are prescribed.

Lin conjunction with the de novo review of legal questions, “[i]f evidence is introduced at the hearing on the peremptory exception of prescription, the district court’s findings of fact are reviewed under the manifest error-dearly wrong standard of review.” Carter v. Haygood, 04-0646, p. 9 (La.1/19/05), 892 So.2d 1261, 1267. “If the findings, are reasonable in light of the record reviewed in its entirety, an appellate court may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Id. “Delictual actions are subject to a liberative prescription of one year.” La. C.C, art. 3492. “This prescription commences to run from the day injury or damage is sustained.” La. C.C. art. 3492.

The trial court previously found that Mr. Titus had notice no later than June 3, 2012, the date of the e-mail to Mr. Ardoin, that his property was going to be forfeited. Mr. Titus filed suit on August 5, 2013. Thus, since more than a year passed between these dates, we must determine if the trial court erred by overruling the Ardoin defendants’ exception based on its finding that the continuous representation rule suspended the running of prescription while Mr. Ardoin represented Mr. Titus.

CONTINUOUS REPRESENTATION

Continuous representation is “a suspension principle based on contra non valentem,” and “cannot apply to peremp-tive periods.” Reeder v. N., 97-0239, p. 12 (La.10/21/97), 701 So.2d 1291, 1298. However, the principle may apply to prescriptive periods. Reeder, 97-0239, p. 11, 701 So.2d at 1297. “The continuous representation rule essentially provides [that] prescription of an act of legal malpractice does not begin to run while the attorney continues to represent the client and attempts to remedy the act of malpractice.” Jenkins v. Starns, 11-1170, p. 6 (La.1/24/12), 85 So.3d 612, 615. See also Perez v. Shook, 97-0420, p. 17 (La.App. 4 Cir. 12/3/97), 703 So.2d 821, 830. “The rule protects the integrity of the attorney-client relationship, allowing the client to rely upon the attorney’s professional ability and good faith while affording the attorney an opportunity to remedy his error.” Jenkins, 11-1170, p. 6, 85 So.3d at 615. “When a client does not innocently trust and rely upon his attorney, but rather actively questions his attorney’s performance, the client may be denied the safe harbor of contra non valentem if equity and justice do not demand its application.” Jenkins, 11-1170, p. 20, 85 So.3d at 624, quoting Hendrick v. ABC Ins. Co., 00-2403, p. 16 (La.5/15/01), 787 So.2d 283, 293 (superseded by statute). “[T]he continuous representation doctrine is applicable where the professional’s involvement after the alleged malpractice is for the same or related services and not merely continuity of a general professional relationship.” Perez, 97-0420, p. 17, 703 So.2d at 830. Louisiana courts have also ruled that the continuous representation doctrine does not apply when “there was evidence to show that the clients knew or should have known of the attorney’s initial act of malpractice, yet continued to allow the attorney to represent them, which resulted in failed attempts to remedy the initial negligent act or omission.” Vegelos v. Abramson, 12-1235, pp. 13-14 (La.App. 4 Cir. 10/2/13), 126 So.3d 639, 647.

Because prescription was evident on the face of the pleadings, Mr. Titus bore the burden of proving that he was entitled to the application of the continuous representation doctrine to prevent the dismissal of his claims due to prescription. Mr. Titus alleged that Mr. Ardoin assured him that a “secret” deal existed with the | ^government to ensure that his property would not be forfeited. Further, Mr. Titus contends that Mr. Ardoin advised him to lie under oath to a federal district court judge to hide the fact that a “secret” deal existed. Contrary to the alleged “secret” deal, the government sought the forfeiture of Mr. Titus’ property. On June 3, 2012, Mr. Titus acknowledged his dissatisfaction that the government was seeking the forfeiture of his property. The attorney-client relationship between Mr. Ardoin and Mr. Titus did not end until November 2013, which was after Mr. Titus filed suit. Therefore, Mr. Titus continued on in some capacity with Mr. Ardoin for almost a year and a half after he had knowledge that the government was seeking forfeiture of his property.

The record contains no evidence that Mr. Ardoin continued to represent Mr. Titus in order to remedy the alleged malpractice of assurances that Mr. Titus’ “properties would not be subject to forfeiture,” and the allegation that Mr. Ardoin did not “advise Mr. Titus regarding the nonforfeiture agreement.” Under the facts and circumstances of this case, we do not find that the safe harbor of continuous representation applies. Mr. Titus knowingly lied under oath, and agreed to a plea deal that included language regarding the possibility that his property would be forfeited. Again, the trial court previously held that Mr. Titus became aware of the alleged malpractice no later than June 3, 2012. The principles underpinning contra non valentum, like equity, justice, and fairness, are lacking in the present |9case. See Hendrick, 00-2403, p. 16, 787 So.2d at 293. “Therefore, we decline to mechanically apply the continuous representation rule as' encompassed by contra non valen-ten in a vacuum to suspend prescription in this particular case.” Id. Accordingly, as Mr. Titus’ petition was filed more than a year after June 3, 2012, we find that Mr. Titus failed to meet his burden to show that the continuous representation doctrine should apply. Therefore, the writ is granted.

NO CAUSE OF ACTION/MOTION FOR SUMMARY JUDGMENT

Because we find that Mr. Titus’ claims are prescribed, the discussions of the exception of no cause of action and motion for summary judgment are pretermitted.

DECREE

For the above-mentioned reasons, we find that the trial court erred by denying the Ardoin defendants’ exception of prescription because all of Mr. Titus’ claims had prescribed, and reverse. Accordingly, the writ is granted.

WRIT GRANTED

      . In accordance with Rules 2-11.8 and 4-7 of the Uniform Rules, Courts of Appeal, this Court ordered the matter set for oral argument and briefing.

      . Mr. Titus' plea agreement included language that his property would be seized to satisfy the judgment if all of the proceeds of his fraud were not available.

      . Mr. Titus was questioned by the federal district court judge regarding any extra deals outside of his plea agreement.

      . Counsel for Mr. Titus provided this date during the hearing on the exceptions and motion for summary judgment.

      . The trial court judge who granted Mr. Titus leave to amend his petition ruled that Mr. Titus had knowledge of the alleged malpractice no later than June 3, 2012. That judgment is not being reviewed.