text:
    FMT SHIPYARD & REPAIR, LLC v. Newell NORMAND Sheriff and Ex-Officio Tax Collector, Jefferson Parish and Jefferson Parish Bureau of Revenue and Taxation
    NO. 18-CA-292
    Court of Appeal of Louisiana, Fifth Circuit.
    May 30, 2019
    COUNSEL FOR PLAINTIFF/APPELLANT, FMT SHIPYARD & REPAIR, LLC, Jason R. Brown, William J. Kolarik, II, Baton Rouge
    COUNSEL FOR DEFENDANT/APPELLEE, JOSEPH P. LOPINTO, III, SHERIFF AND EX-OFFICIO TAX COLLECTOR, JEFFERSON PARISH AND JEFFERSON PARISH BUREAU OF REVENUE AND TAXATION, Kenneth C. Fonte, Metairie
    Panel composed of Judges Marc E. Johnson, Robert A. Chaisson, and Stephen J. Windhorst
   CHAISSON, J.

Taxpayer, FMT Shipyard & Repair, LLC ("FMT"), appeals a final judgment of the Louisiana Board of Tax Appeals - Local Division ("the Board") that denied its petition for redetermination of taxes owed, rendering judgment in favor of the Sheriff of Jefferson Parish, as Tax Collector ("the Sheriff"), and against FMT, in the amount of $ 23,800.00, plus applicable penalties and attorney's fees. For the following reasons, we affirm the judgment of the Board of Tax Appeals.

FACTS & PROCEDURAL HISTORY

FMT operates a shipyard in Harvey, Louisiana, where it performs various services and repairs to floating ships and barges that are used in the inland waterways of the United States of America. Its principal business is performing repairs to vessel hulls, as well as various other steel repairs, for the purposes of returning vessels to seaworthiness. The work is performed on-site at its Harvey shipyard. In connection with these repairs, FMT fabricates certain parts, such as propeller shafts, rudders, rudder shafts, and stairwells. Each of these parts is typically unique to the vessel being repaired.

FMT began operating in Jefferson Parish in 2008. At that time, and throughout the taxable period at issue, 2010 to 2013, FMT registered and paid occupational license taxes ("OLT") under the "contractor" designation as set forth in Jefferson Parish Code Ordinance ("J.P. Code Ord.") Sec. 35-182. Under this classification, FMT paid OLT in the amount of $ 700.00 per year.

In 2015, the Sheriff conducted an audit of FMT for the tax years 2010 through 2013 and determined that FMT should have paid its OLT under the classification of "shipbuilder" as provided by J.P. Code Ord. Sec. 35-175, which imposed a higher OLT rate than that of the "contractor" classification. Following the audit, on December 23, 2015, the Sheriff sent a Notice of Delinquent Taxes - Formal Assessment to FMT, which claimed a total OLT deficiency of $ 41,015.88, consisting of $ 23,800.00 in tax, $ 11,265.88 in interest, and $ 5,950.00 in penalties for the taxable period.

On January 15, 2016, FMT timely filed with the Louisiana Board of Tax Appeals a petition for redetermination of the Sheriff's OLT assessment. In its petition, FMT claims that during the taxable period it erroneously, but not improperly, claimed to be a "contractor" while it should have been classified as a "manufacturer" and is therefore exempt from all OLT liability. The Sheriff filed an answer and reconventional demand in which he rejected FMT's claim to be a manufacturer and demanded attorney's fees in addition to the total amount of tax, interest, and penalty owed.

Following a hearing on the matter during which both parties introduced documentary evidence and testimony from accountants and auditors, the Board rendered judgment with written reasons denying FMT's petition for redetermination and further rendered judgment in favor of the Sheriff in the amount of $ 23,800.00 in tax and $ 5,950.00 in penalty, together with interest and 10% attorney's fees on the amount of tax, penalty, and interest due.

On appeal, FMT raises numerous assignments of error which may be generally summarized: first, the Board legally erred in failing to classify FMT as either a "manufacturer" or, in the alternative, as a simple "contractor" for purposes of the Jefferson Parish OLT; and second, the Board legally erred in failing to rule that the Jefferson Parish OLT ordinances are unconstitutional under La. Const. Art. VI, § 28.

DISCUSSION

Jurisdiction & Standard of Review

La. R.S. 47:1435 provides that the courts of appeal have exclusive jurisdiction to review the decisions or judgments of the Board of Tax Appeals. Upon review, the appellate court has the power to affirm or, if the decision or judgment of the Board is not in accordance with law or is manifestly erroneous on the facts considering the record as a whole, to modify, or to reverse the decision or judgment of the board, with or without remanding the case for further proceedings. Id. This statutory standard of review conforms with the general rule applicable to civil appeals, i.e. , factual determinations are subject to review for manifest error. Tietjen v. City of Shreveport , 09-2116 (La. 5/11/10), 36 So.3d 192, 197-198. For questions of law, if the Board has correctly applied the law and adhered to correct procedural standards, its judgment should be affirmed. Ferrara v. Secretary, Dept. of Revenue and Taxation, State of Louisiana , 96-806 (La. App. 5 1/28/97) 688 So.2d 147, 148, writ denied , 97-0411 (La. 4/4/97), 692 So.2d 418.

With regard to the questions concerning the constitutionality of the Jefferson Parish OLT ordinances, La. R.S. 47:1432(B)(1)(a) provides that the Board has no jurisdiction to declare a statute or ordinance unconstitutional, but requires the transfer of the case to district court for a declaration of unconstitutionality upon the motion of any party if the Board finds that the case cannot be resolved without reaching a declaration on the alleged unconstitutionality. The longstanding jurisprudential rule of law in Louisiana is litigants must raise constitutional attacks in the trial court, not the appellate courts, and the constitutional challenge must be specifically pleaded and the grounds for the claim particularized. Unwired Telecom Corp. v. Par. of Calcasieu , 03-0732 (La. 1/19/05), 903 So.2d 392, 399. FMT did not file its petition and raise its constitutional questions in the district court, nor did it raise these issues before the Board and request transfer to the district court pursuant to La. R.S. 47:1432(B)(1)(a). We therefore will not consider these constitutional questions for the first time in this appeal, instead limiting our discussion to those assignments of error relating to the classification of FMT.

The Classification of FMT

Review of the Board's classification of FMT requires examination of both the Louisiana Revised Statutes and the Jefferson Parish Code of Ordinances. The language of Jefferson Parish Code of Ordinances Chapter 35, Article VI closely parallels that of Louisiana Revised Statutes Title 47, Subtitle II, Chapter 3. La. R.S. 47:341 both authorizes and limits municipalities' and parishes' rights to impose OLT, while the J.P. Code Ord. Sec. 35-153 imposes an OLT upon each person, association of persons, partnerships, firms and corporations pursuing any trade, profession, vocation, calling or business in the parish. Both La. R.S. 47:346 and J.P. Code Ord. Sec. 35-158 state that only one license shall be required for each place of business, and the license shall be based upon the classification of business which constitutes the major portion of the taxable annual gross sales and receipts. La. R.S. 47:347 and J.P. Code Sec. 35-159 contain the same language on how the classification of a business is determined for the OLT:

In order to calculate the license fee for a business location at which business activities are carried on that fall under more than one tax basis schedule, gross receipts, fees, or commissions for each group of activities falling under each schedule must be compared. The rate for the schedule which constitutes the major portion of the gross receipts, fees or commission will be used. However, the total gross receipts, fees or commissions for all business activities carried on at the business location, minus any applicable deductions, are applied to the schedule to compute the fee.

Under these provisions, classification of a business for purposes of determining the OLT begins not with searching for a category such as "manufacturer" or "contractor" and looking to see whether some of the business's activities conform to that definition, but rather an examination of all of the business's activities to identify the major portion. Both the ordinance and the statute clearly contemplate situations where a business may be engaged in multiple kinds of activities and provides a clear basis for determining which of those activities will be the sole basis for taxation.

At trial, the court heard testimony from Mr. Robert Pate, FMT's accounting manager. He testified that the principal business of FMT during the taxable period was repairs to vessels. The repairs included fabrication of custom steel and aluminum parts not made or sold to the public. Ms. Carrie Power, the supervising auditor of the audit of FMT shipyard, also testified regarding the FMT business records they reviewed during the audit. Specifically, she testified about information she received from FMT that all the manufacturing done was custom work and none of the parts were sold at retail.

Based on this testimony and extensive review of the documentary evidence, the trial court determined that the majority of FMT'S business activities for the taxable period fell within the schedule for shipbuilders set forth in La. R.S. 47:355 and J.P. Code Ord. Sec. 35-175 (which contain identical language). The trial court did not find that FMT engaged in no manufacturing or contracting activities, but rather that such activities, including the fabrication of custom parts for ships, were incidental to its principal business activities operating a shipyard and providing ship repair services.

Upon our review of the record, we find that the trial court correctly applied the law and that the evidence supports the classification of FMT as a shipbuilder pursuant to J.P. Code Ord. Sec. 35-175. Therefore, we affirm the judgment of the Board.

AFFIRMED

      A Formal Assessment for sales and use tax was also sent to FMT on January 8, 2016, which FMT has also contested. Those issues are not before this Court at this time.

      We acknowledge that there are apparent discrepancies in J.P. Code Ord. Sec. 35-182(a) and La. R.S. 47:362(A) concerning the minimum OLT paid by contractors; however, because the trial court correctly classified FMT as a shipbuilder, these special provisions are not relevant to our discussion.


source: Caselaw Access Project

author: WINDHORST, J.

license: Public Domain

text:
    IN RE: Gayan SHELL, Wife of / and Paul L. Juarez
    NO. 18-CA-709
    Court of Appeal of Louisiana, Fifth Circuit.
    May 30, 2019
    COUNSEL FOR PLAINTIFF/APPELLANT, LYNN O. DUPREE, IN HER CAPACITY AS INDEPENDENT DATIVE EXECUTRIX OF THE SUCCESSION OF MARJORIE O. BLAKE, Irl R. Silverstein
    COUNSEL FOR DEFENDANT/APPELLEE, PAUL L. JUAREZ, Philip C. Ciaccio, Jr.
    Panel composed of Judges Marc E. Johnson, Robert A. Chaisson, and Stephen J. Windhorst
   WINDHORST, J.

Appellant/plaintiff, Lynn Dupree as executrix of the Succession of Marjorie Blake, seeks review of the district court's judgment granting appellees/defendants, Paul Juarez and the unopened succession of Gayan Shell Juarez's, exception of prescription and dismissing with prejudice plaintiff's petition to annul a judgment terminating the community of acquets and gains between Paul Juarez and Gayan Shell and establishing a separation of property regime. The district court also ruled that defendants' exceptions of no right of action and no cause of action were moot. For the reasons stated herein, we vacate the district court's judgment and grant appellees' exceptions of no right and no cause of action.

FACTS AND PROCEDURAL HISTORY

On March 21, 2000, Paul L. Juarez and Gayan Shell Juarez filed a joint petition to terminate their legal matrimonial regime and enter into a separation of property regime ("petition to terminate"). On that same day, the trial court signed a judgment terminating the community of acquets and gains between Paul L. Juarez and Gayan Shell and establishing a separation of property regime in accordance with La. C.C. art. 2329.

Paul Juarez and his now deceased wife, Gayan Shell Juarez, were caretakers for Marjorie Blake for approximately seven or eight years. According to certain lawsuits filed on behalf of Ms. Blake, Paul and Gayan Juarez allegedly stole money from Ms. Blake prior to her death and diminished her estate. On June 5, 2018, Lynn Dupree, in her capacity as independent dative executrix of the Succession of Marjorie Blake, filed this suit, a petition to annul judgment, against Paul Juarez, seeking (1) to nullify the March 21, 2000 judgment that terminated the community of acquets and gains between Paul Juarez and Gayan Shell based on fraud; (2) to re-establish the community of acquets and gains, which existed prior to that judgment; (3) to appoint an attorney to act as the administrator of the Succession of Gayan Shell Juarez, who died on September 20, 2015; and (4) reasonable attorney's fees under La. C.C.P. art. 2004.

In the petition to annul, Ms. Dupree on behalf of Ms. Blake's succession asserted that the allegations set forth in the petition to terminate were based on fraud and that the judgment terminating the community should be nullified. Specifically, Ms. Dupree alleged that the representation in the petition to terminate that Paul and Gayan Juarez were gainfully employed full-time and capable of paying their own separate debts was fraudulent. In making this allegation, Ms. Dupree relied on a letter from Mr. Juarez to the Department of Social Services, in which he sought disability benefits because he was completely unemployed as of September 23, 1996 due to a stroke he suffered in 1994.

According to the petition to annul, Ms. Dupree filed three other related actions on behalf of Ms. Blake's succession, including (1) a revocatory action against Paul Juarez, Elicia Claire and/or Lauren Elaine Juarez, seeking to set aside a trust agreement wherein Paul and Gayan Juarez transferred their family residence at 1808 Lake Michigan Drive, Harvey, Louisiana, to The Paul and Gayan Juarez Family Trust on January 27, 2015; (2) a breach of fiduciary duty claim against Paul Juarez, while acting in his capacity as agent under a Power of Attorney allegedly executed by the decedent, Marjorie Blake; and (3) a claim based upon conversion and fraud against Paul and Gayan Juarez.

On July 10, 2018, defendants filed exceptions of no right of action, no cause of action, and prescription, seeking dismissal of the petition to annul. Defendants argued that Ms. Dupree had no right of action because neither Ms. Dupree on behalf of Ms. Blake's succession nor Ms. Blake was a party to the separation of property agreement or a creditor of the matrimonial regime that was terminated. Defendants further argued that Ms. Dupree had no cause of action because the challenged judgment did not result in the deprivation of a legal right in that she was not a party to the judgment or a creditor of the community that was terminated. Finally, defendants argued that the petition to annul was prescribed because Ms. Dupree was aware of the facts upon which the petition is based in 2015, but did not file suit until 2018, well beyond the one-year prescriptive period set forth in La. C.C.P. art. 2004.

After a hearing, the district court granted the exception of prescription and dismissed the petition to annul with prejudice, and ruled that the exceptions of no right of action and no cause of action were moot. Ms. Dupree, on behalf of Ms. Blake's succession, appealed this judgment.

LAW AND ANALYSIS

Appellant asserts that the district court erred in not finding that the March 21, 2000 judgment terminating the Juarez's community regime and approving their matrimonial agreement establishing a separate property regime was an absolute nullity, and in finding that the action to annul the judgment was prescribed. Appellant also asserts that the district court applied an improper burden of proof in granting the exception of prescription.

Although the trial court addressed the exception of prescription and found the exceptions of no cause of action and no right of action moot, we find that in order to determine the applicable prescriptive period, the type of action being asserted must first be determined. Here, there is an issue as to whether this action should be considered a petition to annul under La. C.C.P. art. 2004, a petition for absolute nullity under La. C.C. art. 2030, or a petition for a relative nullity under La. C.C. art. 2031. We therefore initially decide the exceptions of no cause of action and no right of action. An appellate court may, on its own, take notice of and address the lack of a right of action and a cause of action. La. C.C.P. art. 927(B). Teachers' Ret. Sys. of Louisiana v. Louisiana State Employees' Ret. Sys., 456 So.2d 594, 598 (La. 1984). Because, for the reasons which follow, we find that appellant has no right of action and states no cause of action, it is unnecessary for us to determine which prescriptive period applies and whether it was exceeded.

Exception of No Right Action

La. C.C.P. art. 681 provides that "[e]xcept as otherwise provided by law, an action can be brought only by a person having a real and actual interest which he asserts." The purpose of the exception of no right of action is to determine whether a plaintiff has a real and actual interest in an action or belongs to a particular class to which the law grants a remedy for a particular harm alleged. Louisiana Shrimp Ass'n v. Wayne Estay & Wayne Estay Shrimp Co., 2005-29 (La. App. 5 Cir. 5/31/05), 905 So.2d 431, 434. In determining whether a plaintiff has a right of action, the court must consider whether plaintiff has an interest in judicially enforcing the right asserted. Id.

In the present case, Ms. Dupree filed suit in her capacity as independent dative executrix of Ms. Blake's succession, seeking to annul a judgment and agreement regarding the matrimonial regime of Paul and Gayan Juarez. Neither Ms. Dupree nor Ms. Blake was a party to the action in which the March 21, 2000 judgment was rendered or the separation of property agreement that was approved by that judgment. In addition, Ms. Dupree (as executrix for the succession) and Ms. Blake were also not creditors of either Paul or Gayan Juarez at the time of the judgment nor are they currently. There is nothing in the record to show that Ms. Dupree or Ms. Blake have a legal right or interest entitling them to seek to annul the March 21, 2000 judgment.

Because Ms. Dupree as executrix of Ms. Blake's succession asserts that the separation of property agreement is governed by the general rules of conventional obligations, we have also considered whether Ms. Dupree has a right to assert that the separation of property agreement is null under La. C.C. arts. 2030 and 2031. Although an absolute nullity may be invoked by any person under La. C.C. art. 2030, La. C.C. art. 2031 provides that a "Relative nullity may be invoked only by those persons for whose interest the ground for nullity was established, and may not be declared by the court on its own initiative." Jurisprudence states that the relative nullity of a matrimonial agreement "may be invoked only by those persons for whose interest the ground for nullity was established," who, in this case, is the non-offending spouse. Radcliffe 10, L.L.C. v. Burger, 2016-0768 (La. 1/25/2017), 219 So. 3d 296, 302. Ms. Blake and Ms. Dupree were not parties to the action or the matrimonial agreement. Thus, they are not individuals for whose interest the ground for nullity could be alleged or established. Ms. Dupree therefore has no right of action to assert that the separation of property agreement is a relative nullity.

Accordingly, we find that Ms. Dupree as executrix of Ms. Blake's succession has no right of action relative to the relief sought in her petition to annul or to assert that the separation of property agreement is a relative nullity. We therefore grant appellees' exception of no right of action and dismiss appellant's petition on this basis.

Exception of No Cause of Action

The function of the exception of no cause of action is to test the legal sufficiency of the petition by determining whether the law affords a remedy based on the facts alleged in the pleading. Everything on Wheels Subaru, Inc. v. Subaru South, 616 So.2d 1234, 1235 (La. 1993). "A cause of action, when used in the context of the peremptory exception, is defined as the operative facts that give rise to the plaintiff's right to judicially assert the action against the defendant." Ramey v. DeCaire, 2003-1299 (La. 3/19/04), 869 So.2d 114, 118-19. The issue at the trial of the exception is whether, on the face of the petition, the plaintiff is legally entitled to the relief sought. Id.

No evidence may be introduced at any time to support or controvert the objection that the petition fails to state a cause of action. La. C.C.P. art. 931. The exception is triable on the face of the petition and for the purposes of determining the issues raised by the exception, the well-pleaded facts in the petition must be accepted as true. City of New Orleans v. Board of Commissioners, 1993-0690 (La. 7/5/94), 640 So.2d 237, 241. Mere conclusions of the plaintiff unsupported by facts do not set forth a cause of action. Ramey, 869 So.2d at 119. The pertinent question is whether, in the light most favorable to plaintiff and with every doubt resolved in plaintiff's behalf, the petition, states any valid cause of action for relief. Id.

Accepting all of the allegations in the petition to annul as true and applying the legal principles set forth above, we find appellant's petition to annul fails to allege facts sufficient to state a cause of action in this matter. A party seeking to annul a judgment based on fraud under La. C.C.P. art. 2004 must show both that the challenged judgment resulted from a deprivation of that party's legal rights and that its enforcement would be unconscionable and inequitable. Bush v. Lee, 443 So.2d 702 (La. App. 5th Cir. 1983). Neither Ms. Dupree nor Ms. Blake's succession was a party to the judgment sought to be annulled or a creditor of the community at the time of the judgment or currently. Neither has any legal claim against either of the spouses or the community regime. Consequently, Ms. Dupree has not alleged any facts to support that the challenged judgment resulted from the deprivation of her legal rights or any legal rights of Ms. Blake's succession.

Since Ms. Dupree asserts that the separation of property agreement is governed by the general rules of conventional obligations and that it is an absolute nullity, we have also considered whether the petition to annul states a state cause of action for absolute nullity under La. C.C. art. 2030. Upon review, we find that it does not state a cause of action for absolute nullity because Ms. Dupree does not allege any facts to support a claim that the separation of property agreement violates a rule of public order or is illicit or immoral, as is required by La. C.C. art. 2030.

Viewing the allegations in the light most favorable to plaintiff and with every doubt resolved in Ms. Dupree's behalf, we find the petition to annul fails to state any valid cause of action for relief. We therefore grant appellees' exception of no cause of action and dismiss appellant's petition on this basis.

Because we conclude that Ms. Dupree on behalf of Ms. Blake's succession has no right of action, states no cause of action and we dismiss the petition to annul on those grounds, the issues relative to the exception of prescription are moot. Therefore, we pretermit any discussion of that exception.

DECREE

Based on the facts alleged in this matter, we find that appellant has no right of action and fails to state a cause of action. Given that we have addressed sua sponte appellees' exceptions of no right of action and no cause of action instead of the exception of prescription granted by the district court for the reason initially explained, we vacate the district court's judgment granting the exception of prescription and grant appellees' exceptions of no right of action and no cause of action. On this basis, appellant's petition to annul is dismissed.

VACATED; EXCEPTIONS OF NO RIGHT OF ACTION AND NO CAUSE OF ACTION GRANTED


author: CHEHARDY, C.J.

text:
    WECHEM, INC. v. Will EVANS
    NO. 18-CA-743
    Court of Appeal of Louisiana, Fifth Circuit.
    May 30, 2019
    COUNSEL FOR PLAINTIFF/APPELLEE, WECHEM, INC., Frederic T. LeClercq, Andrew J. Baer, Isaac H. Ryan
    COUNSEL FOR DEFENDANT/APPELLANT, WILL EVANS, L. Etienne Balart, Jennifer A. David
    Panel composed of Judges Susan M. Chehardy, Jude G. Gravois, and Marc E. Johnson
   CHEHARDY, C.J.

Defendant appeals from a trial court judgment granting a preliminary injunction in favor of his former employer enforcing a non-competition/non-solicitation agreement signed by both parties. For the reasons that follow, we amend the trial court's judgment and affirm the judgment, as amended.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Plaintiff, Wechem, Inc. ("Wechem") is a Louisiana corporation engaged in the manufacture, sale, resale, distribution, and packaging of chemicals, including janitorial, industrial, water treatment and others, and institutional supplies and chemicals. The water treatment chemicals Wechem sells are primarily used in institutional HVAC applications.

Defendant, Will Evans, was formerly employed by Wechem as a sales representative from 1991 until May 2018. At the time of his hire, Evans worked for Wechem on a commission basis with no formal written employment contract. In October 2007, as a condition of his continued employment, Evans was required to enter into a Sales Representative Exclusive Account Contract (the "Agreement"), which contained, among other provisions, an agreement not to compete and an agreement not to solicit customers. Paragraph 8 contained a geographical limitation prohibiting Evans from engaging in any business or selling any products similar to that of Wechem within nine Louisiana parishes and one Mississippi county for a twenty-four month period following his separation of employment with Wechem. Paragraph 10 contained a solicitation prohibition requiring Evans to refrain from selling to or soliciting Wechem's existing customers within the same nine Louisiana parishes and one Mississippi county, also for a period of twenty-four months.

W. Earl Phillips, the president/chief executive officer for Wechem, executed the Agreement on behalf of Wechem on October 4, 2007. Evans initially refused to sign the contract due to concerns that, as written, the Agreement did not protect his future compensation regarding sales commissions. In response to Evans' concerns, Wechem added a compensation addendum, which provided:

The Sales Representative shall be paid pursuant to the current Wechem Commission Policy unless a different commission policy is agreed upon by Company and Sales Representative, and the policy is put in writing and signed by the appropriate Wechem representative.

Once the compensation addendum was incorporated into the employment contract as per Evans' request, Evans signed the Agreement on October 23, 2007. By freely and voluntarily signing the Agreement, Evans conceded that he had read and fully understood "each and every provision" and that he "accept[ed] and agree[d] to the same." Evans worked under the terms and conditions of this Agreement from October 2007 until he separated from Wechem in May 2018.

Pursuant to the compensation addendum, and under the "Wechem Commission Policy" existing at the time the Agreement was confected in 2007, commissions on all of Evans' sales were based on a 50/50 split of the profit amount realized on every sale, and his commission percentage averaged from 27% to 29% of gross sales each year. In the fall of 2017, Wechem announced its plan to modify the commission structure of its sales force. This modification differed from the compensation scheme Wechem had in place in 2007 when Evans executed the Agreement, in that it placed an approximate 18% cap on Evans' sales commissions yielding a decrease in Evans' annual commissions. In 2005, Evans received special training and obtained certification as a water technologist. Due to Evans' specialization in water treatment chemicals, Wechem management recognized that Evans' specialization set him apart from other Wechem sales representatives and that the modified compensation scheme would affect him differently. Thus, as a result of back-and-forth negotiations between Evans and Wechem's CEO, Olin Kropog, it was determined that the company's modified 18% cap on commissions as to Evans would be implemented only as to his sale of janitorial products-the commissions on Evans' sale of water treatment chemicals, which comprised approximately 75-80% of his sales, would remain unchanged.

In an August 18, 2017 email from Kropog to Evans, Kropog memorialized that Wechem was not going to modify Evans' sales commission on water treatment chemicals, but that Wechem would apply the 18% commission to other non-water treatment products he sold. It is undisputed that the email transmitted by Kropog to Evans was sent in Kropog's capacity as the CEO of Wechem and that the email bore Kropog's electronic signature. Evans was paid pursuant to the modified compensation scheme as outlined in Kropog's August 18, 2017 email, from that time through the date of his separation from the company in May 2018.

In November 2017, while still employed with Wechem, Evans began communicating with Bill Buckley, the Senior Vice President/National Sales Manager of Momar, Inc., a direct competitor to Wechem. Thereafter, in April 2018, Evans met with Buckley and Momar's owner, Julian Mohr, to discuss Evans' separation from Wechem and his move over to work as a sales representative for Momar. Also while still employed with Wechem, Evans became aware that one of the Mississippi customers he serviced for Wechem had advertised a request for public bid to supply water treatment chemicals. Evans withheld information regarding the upcoming bid opening from Wechem management. Instead, in anticipation of his transfer to Momar and in an attempt to obtain this customer's account for Momar, Evans provided Buckley with information regarding Wechem's contract with this Mississippi customer, which included Wechem's pricing structure and bid package. Additionally, prior to leaving Wechem, Evans admittedly contacted at least three of Wechem's existing customers in an attempt to solicit them to transfer their business to Momar, where he would soon be employed.

According to Evans, his resignation from Wechem on May 30, 2018 was a direct consequence of Wechem's change in its commission policy and the resulting loss of his commission earnings. Upon leaving, Evans immediately began working as a sales representative for Momar selling many of the same and/or similar products sold by Wechem, as well as other products that Wechem does not carry, and providing testing and treatment services. Additionally, within the first weeks of working for Momar, Evans targeted and tried to sell water treatment chemicals to customers that he had previously serviced while employed at Wechem.

Also soon after Evans' departure from Wechem, several of Wechem's customers advised Wechem that they were "moving in a different direction" and were no longer in need of Wechem's services. Evans conceded that he solicited several of these customers to move their business with him to Momar. According to Wechem, it did not become aware that Evans was in violation of the Agreement until August 2018, when a Wechem salesman attempted to make a sales call on one of its customers and was apprised that Evans had solicited the customer's water treatment business for Momar. Additionally, during his sales calls of former and existing Wechem customers, the Wechem salesman discovered Momar chemicals on the premises of several of these customers.

After obtaining confirmation that Evans was in breach of the Agreement, Wechem sent a cease and desist letter to Evans and the owner of Momar via certified mail on September 7, 2018. Thereafter, on October 11, 2018, Wechem filed suit against Evans, seeking preliminary and permanent injunctions against him for violation of the Agreement's non-competition and non-solicitation provisions and for damages for breach of contract. Specifically, Wechem's petition sought to restrain and enjoin Evans for a period of twenty-four months from the date of his separation of employment with Wechem from (1) working for Momar and/or any other competitor of Wechem in Hinds County, Mississippi, and nine Louisiana parishes, and (2) from directly or indirectly soliciting or encouraging any Wechem customer to move its business to Momar.

A hearing on the preliminary injunction was held on October 31, 2018. At the conclusion, the trial court orally rendered judgment granting Wechem's request for a preliminary injunction, finding that Wechem would suffer irreparable injury, loss or damage if the preliminary injunction was not issued; that Wechem was entitled to the relief sought; and, that Wechem had carried its burden of showing that it was likely to prevail on the merits. The trial court ruled that Evans was prohibited from working for any Wechem competitor, including Momar, in Hinds County, Mississippi and in the nine Louisiana parishes set forth in the Agreement. The trial court also prohibited Evans from directly or indirectly soliciting any Wechem customers that purchased Wechem products while Evans was employed by Wechem. A written preliminary injunction was entered on October 31, 2018.

The instant appeal ensued.

ISSUES PRESENTED FOR REVIEW

On appeal, Evans avers that the trial court erred: (1) by enforcing the non-competition Agreement between himself and Wechem, which Wechem purportedly breached by not paying Evans in accordance with the Agreement's compensation addendum; (2) by enjoining Evans from working in parishes in which Wechem failed to establish that it was carrying on a "like business" as required by La. R.S. 23:921(C) ; (3) by issuing an order that, effectively, prevents Evans from any employment with his current employer, regardless of whether such employment is "in competition" as is required by La. R.S. 23:921 ; and (4) by issuing an order that fails to sufficiently describe the prohibited conduct and/or is otherwise impermissibly overly broad.

LAW AND DISCUSSION

Applicable Legal Principles

A preliminary injunction is essentially an interlocutory procedural device designed to preserve the status quo between the parties pending a trial on the merits. Novelaire Techs., L.L.C. v. Harrison , 08-157 (La. App. 5 Cir. 8/19/08), 994 So.2d 57, 60. The primary purpose of injunctive relief is to prevent the occurrence of future acts that may result in irreparable injury, loss, or damage to the applicant. Ryan Gootee Gen. Contractors, LLC v. Plaquemines Par. Sch. Bd. & One Const., Inc. , 15-325 (La. App. 5 Cir. 11/19/15), 180 So.3d 588, 598. Although the judgment on a preliminary injunction is interlocutory, a party aggrieved by a judgment either granting or denying a preliminary injunction is entitled to an appeal. La. C.C.P. art. 3612.

Typically, a trial court is granted wide discretion in determining whether an injunction is warranted, and its issuance of a preliminary injunction will not be disturbed on appeal absent manifest error or a clear abuse of discretion. Yorsch v. Morel , 16-662 (La. App. 5 Cir. 7/27/17), 223 So.3d 1274, 1281, writ denied , 17-1475 (La. 11/13/17), 230 So.3d 207. However, where the trial court's decision is based on an erroneous interpretation or application of the law, rather than a valid exercise of discretion, such an incorrect decision is not entitled to deference by the reviewing court. West Carroll Health Sys., L.L.C. v. Tilmon , 47,152 (La. App. 2 Cir. 5/16/12), 92 So.3d 1131, 1133.

Historically, Louisiana has disfavored non-competition agreements. SWAT 24 Shreveport Bossier, Inc. v. Bond , 00-1695 (La. 6/29/01), 808 So.2d 294, 298. 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. Id. ; see also H2O Hair, Inc. v. Marquette , 06-930 (La. App. 5 Cir. 5/15/07), 960 So.2d 250, 258. Such agreements are deemed to be against public policy, except under limited circumstances delineated by statute. The applicable statute is La. R.S. 23:921, which provides, in pertinent part:

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, which meets the exceptions as provided in this Section, shall be enforceable.
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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.
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H. Any agreement covered by Subsections B, C, E, F, G, J, K, or L of this section shall be considered an obligation not to do, and failure to perform may entitle the oblige to recover damages for the loss sustained and the profit of which he has been deprived. In addition, upon proof of the obligor's failure to perform, and without the necessity of proving irreparable injury, a court of competent jurisdiction shall order injunctive relief enforcing the terms of the agreement.

To be valid, non-competition and non-solicitation agreements must comply with La. R.S. 23:921. Although non-competition agreements are separate and distinct from non-solicitation agreements, the requirements of La. R.S. 23:921 apply to both. See VarTech Systems, Inc. v. Hayden , 05-2499 (La. App. 1 Cir. 12/20/06), 951 So.2d 247, 260. La. R.S. 23:921(C) is an exception to Louisiana public policy against non-competition agreements and, as such, must be strictly construed. H2O Hair, Inc. , 960 So.2d at 259.

In order to determine whether the employer has carried its burden of proving its right to injunctive relief, the court must consider the validity and enforceability of the agreement sought to be enforced by the employer. See SWAT 24 , 808 So.2d at 294 ; H2O Hair, Inc. , 960 So.2d at 259. And even though La. R.S. 23:921(H) mandates the issuance of injunctive relief without the necessity of proving irreparable harm when the obligor's failure to perform is established, the employer still bears the burden of proving that it is entitled to relief. Clear Channel Broadcasting, Inc. v. Brown , 04-0133 (La. App. 4 Cir. 3/30/05), 901 So.2d 553, 558.

A non-competition agreement may limit competition only as to a business similar to that of the employer, in a specified geographic area and for up to two years from termination of employment. Paradigm Health System, L.L.C. v. Faust , 16-1276 (La. App. 1 Cir. 4/12/17), 218 So.3d 1068, 1072. Where the actions the employer seeks to enjoin pursuant to a non-competition agreement do not fall within the exception found in La. R.S. 23:921(C), or where the agreement is found to be unenforceable for failure to conform to La. R.S. 23:921, the employer seeking enforcement is unable to carry its burden of establishing that it is entitled to the relief sought. See SWAT 24 , 808 So.2d at 307 ; H2O Hair, Inc. , 960 So.2d at 259.

The Employment Agreement

With these legal precepts in mind, we turn to the employment Agreement executed between Wechem and Evans in 2007. The Agreement provides as follows, in pertinent part:

1. Company hereby employs Sales Representative, and Sales Representative hereby accepts employment by Company as a Sales Representative to solicit sales of Company's own line of products to accounts in the designated territory, upon the terms and conditions set forth below. The Sales Representative shall be required to devote (sufficient) time to perform the duties that the Company may require of him/her, including all activities, requirements of the chemical sale business, and training sessions offered by the Company. Company reserves the right to assign the Sales Representative to different and other further employment duties and responsibilities other than those defined herein. Notwithstanding said change and assignment, all terms and provisions of this agreement shall remain in full force and effect.
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8. Sales Representative hereby expressly agrees that during the term of employment and for a period of twenty-four (24) months following the termination of employment hereunder, whether such termination is voluntary or involuntary, Sales Representative will refrain from carrying on or engaging in any business similar to that of Company within the parishes/counties listed in Attachment "A" which attachment can be revised at the Company's discretion. Should any changes be made to Attachment "A," Sales Representative will receive written notification of the change at which time the revised Attachment "A" will be incorporated into this Agreement. Sales Representative will not for or on behalf of Sales Representative or on behalf of any proprietorship, partnership or corporation which engages in a business similar to that of Company, directly or indirectly within the parishes/counties specified in Attachment "A," sell or attempt to sell or solicit the sale of any products of the same or similar kind as is offered or sold by Company at anytime during his employment with the Company.
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10. Sales Representative hereby expressly agrees that during the term of employment hereunder and prepared in twenty-four (24) months following the termination of employment hereunder, whether such a termination is voluntary or involuntary, Sales Representative will not, for or on behalf of Sales Representative or any person, persons, partnership, or corporation (except Company), directly or indirectly, within the parishes/counties specified in Attachment "A," solicit or attempt to solicit the sale of any products of the same or similar kind as those offered or sold by Company at any time during the twenty-four (24) month period immediately preceding the termination of Sales Representative's employment hereunder, to any person, partnership, or corporation who is solicited from the sale of or was sold any such products by the Sales Representative or any other Sales Representative employed by Company.

The agreement specifically delineates that the geographic area to which the agreement applies is Hinds County, Mississippi, and the following nine Louisiana parishes: East Baton Rouge; East Feliciana; Orleans; St. John; West Baton Rouge; Jefferson; West Feliciana; St. Charles; and, Livingston. In addition, there is a clause requiring the sales representative to maintain confidentiality of Wechem's trade secrets and/or confidential information, including customer lists, pricing policies, prices, product development plans, and market strategies. Further, the parties agreed that Wechem is entitled to injunctive relief to prevent or curtail any breach of the Agreement by the sales representative. Finally, the parties agreed that Evans would be paid pursuant to the commission policy Wechem had in effect at the time the Agreement was executed, and that any change in the commission policy would have to be: (1) agreed to by both Wechem and Evans; (2) put in writing; and (3) be signed by the Wechem representative.

Breach of the Agreement

In his first assignment of error, Evans contends that Wechem's modification to his compensation scheme in August 2017 constituted a breach of the Agreement rendering the non-competition/non-solicitation provisions invalid and unenforceable under La. R.S. 23:921(C). Specifically, Evans contends Wechem was in breach of the Agreement because the change to the company's compensation policy was unilateral as he never agreed to it, the change was not issued by Wechem "in writing," and the change was not signed by the appropriate Wechem representative, as required by the terms of the Agreement's compensation addendum. In short, Evans argues the trial court committed legal error by failing to take Wechem's breach of the Agreement into consideration when granting Wechem's request for a preliminary injunction. We disagree.

At the hearing, Evans conceded in his testimony that discussions and negotiations did take place between himself and Wechem's then CEO, Kopog, regarding Wechem's proposed modification:

Q. Isn't it true that you and management at Wechem entered into a discussion and negotiation as it related to the commission structure for your water treatment business?
A. Yes. I had to -- I had to fight to continue getting the commissions I'd been getting for twenty-six years of service to Wechem.
Q. Isn't it true that at the end of the day, Wechem agreed to pay you the commissions that you have previously gotten for your water treatment business throughout the entire time you were at Wechem?
A. Yes. But the other roughly half of my business, the commissions were cut significantly.

Also at the hearing, Wechem's CFO, Christine Jones, testified that when she researched Evans' accounts, she was able to determine that his water treatment business comprised approximately 75-80% of his accounts on which the sales commissions he received would remain the same. The remaining 20-25% of Evans' business consisted of non-water treatment, or janitorial, accounts; under the modified commission structure, the sales commissions that he would receive on these accounts were subject to a flat 18% commission. Jones determined that as a result of the reduction in commissions on Evans' janitorial sales, Evans' overall compensation was decreased by 6%. In order to offset some of the income loss Evans was to incur as a result of the modification, Jones testified that Wechem gave him a new account. While Jones testified that under the new commission policy Evans was due to make "somewhat less money," there was the opportunity for him to make more money.

Contrary to Evans' contention that Wechem's modification to the commission policy was "unilateral" and that he never agreed it, we find that the evidence adduced at the hearing established that the modification to Evans' particular commission scheme was actually the result of negotiations between himself and Wechem management. And while Evans contends that he never agreed to the modification as required by the Agreement, the testimony at the hearing established that Evans worked under the modified commission policy without complaint from August 2017 until his separation from Wechem in May 2018, suggesting that Evans tacitly agreed to the modification.

We also find that the August 18, 2017 email transmitted by Kopog to Evans, wherein Kopog memorialized Wechem's commission policy for Evans was sufficient to meet the "writing" requirement of the Agreement's compensation addendum. Further, Evans does not dispute that the email was transmitted by Kopog, Wechem's CEO, or that the email contained Kopog's signature block:

Q. And isn't it true that Olin [Kopog] said to you in this document that he was not changing the commission structure on the water treatment chemicals?
A. Yes, he did. And I ask that this be put in -- formally put in writing to guarantee that they would never be, and I was told no.
Q. And that's a writing right there, isn't it?
A. I don't call that a contract.
Q. Do you call it a writing?
A. A writing. Yes.
Q. Is that an electronic signature at the bottom of this document?
A. I suppose it is. Yeah.

Furthermore, the law in Louisiana is clear that written contracts may be modified by oral contracts and the conduct of the parties, even in contracts that specify that any changes to the contract must be in writing. See Aqua Pool Renovations, Inc. v. Paradise Manor Community Club, Inc. , 04-119 (La. App. 5 Cir. 7/27/04), 880 So.2d 875, 880. Additionally, modification of a written agreement can be presumed by silence, inaction, or implication. Lantech Const. Co., L.L.C. v. Speed , 08-811 (La. App. 5 Cir. 5/26/09), 15 So.3d 289, 293-294. Whether there is an oral agreement that modified the written contract is a question of fact. Id. ; see also Driver Pipeline Co. v. Cadeville Gas Storage, LLC , 49,375 (La. App. 2 Cir. 10/1/14), 150 So.3d 492, 501, writ denied , 14-2304 (La. 1/23/15), 159 So.3d 1058. In the case sub judice , the evidence and testimony introduced at the hearing reflects that Evans worked under the modified compensation scheme for over nine months without complaint. There is nothing in the record to suggest that he rejected the compensation modifications as set forth in the August 18, 2017 email he received from Kopog.

Based on our review of the record, whether the Agreement's compensation addendum was orally modified or done so by written agreement, we find the evidence insufficient to establish that Wechem breached the Agreement as Evans contends. The evidence and testimony adduced at the hearing show that although Wechem made the initial decision that a change in its commission policy for all of its sales representatives was necessary, the actual modification to Evans' commission structure, in particular, was not a unilateral change, but rather, a result of negotiations that took place between Evans and Wechem management. Following those negotiations, the final terms of the modification to Evans' commission scheme were reduced to writing and provided to Evans in a written email, which Evans acknowledged was electronically signed by Kopog, Wechem's CEO. Thereafter, Evans worked under, and received payments pursuant to, the modified compensation policy for an additional nine months prior to his separation from the company, without evidence of complaint. Accordingly, we find the record evidence does not support Evans' contention that Wechem's modification to his commission scheme, whether oral or written, constituted a breach of the Agreement nullifying the non-compensation/non-solicitation provisions.

The Validity and Enforceability of the Agreement's Non-Competition/Non-Solicitation Provisions

We further find that the trial court did not err in concluding that the Agreement's non-competition/non-solicitation provisions comport with La. R.S. 23:921 and are enforceable. The statute permits an employer to prohibit its employee, for a period not to exceed two years, "from carrying on or engaging in a business similar to that of the employer ..." and from soliciting the employer's customers within specified parishes where the employer carries on a like business. La. R.S. 23:921(C). It is undisputed that the Agreement's non-competition/non-solicitation provisions comply with the statute's two-year maximum duration requirement and specifically elucidate the nine Louisiana parishes and one Mississippi county in which Evans is restrained.

Further, "[t]o comply with Louisiana law, a covenant-not-to compete agreement must specifically define the employer's business." Daquiri's III on Bourbon, Ltd. v. Wandfluh , 608 So.2d 222, 225 (La. App. 5th Cir. 1992). In the instant case, the Agreement's preamble explicitly states that Wechem is engaged in the "manufacture, sale, resale, distribution, and packaging of chemicals, including janitorial, industrial, water treatment and others and institutional supplies and chemicals." Evans suggests that because Wechem, in its brief, more particularly described its business as "sell[ing] janitorial supplies and water treatment chemicals used in HVAC machinery," this is an acknowledgement that the definition of Wechem's business as stated in the Agreement's non-competition/non-solicitation provisions is "patently" overly broad in violation of Louisiana law and, thus, the provisions are null and void. To the contrary, the Agreement's non-competition/non-solicitation provisions specifically prohibit Evans from selling, attempting to sell, or soliciting the sale of any janitorial, industrial, or water treatment chemicals and institutional supplies for or on behalf of a Wechem competitor that are the same or similar to any of the chemicals and supplies Wechem sold while Evans was employed there. We do not find the Agreement's definition of Wechem's business to be overly broad or in violation of Louisiana law.

Evans further contends that the Agreement's language is overly broad in that it acts to limit Evans from working in any capacity with a competitor. We disagree. We find the Agreement's language operates to prohibit only those actions by Evans which directly or indirectly compete with Wechem's business- i.e. , selling, or soliciting to sell, janitorial, industrial, or water treatment chemicals and institutional supplies like or similar to those products sold by Wechem.

For the reasons stated, we find the Agreement validly operates to prevent Evans from leaving Wechem's employ and competing in a business in direct or indirect competition with Wechem's business for a period of two years within a specifically defined geographical area. In short, the Agreement's language falls within the permissible bounds of La. R.S. 23:921. At the hearing, Evans, who was employed with Wechem for 26 years and knew full well the nature of Wechem's business, testified that the work he now performs for his new employer, Momar, is in direct competition with Wechem's business. Evans also admitted that, both before and after his separation from Wechem, he solicited Wechem clients to move their water treatment business from Wechem with him to Momar. Such actions violated the Agreement's non-competition and non-solicitation provisions. Accordingly, the trial court did not err in its determination that the Agreement's non-competition/non-solicitation provisions are valid and enforceable against Evans. This assignment of error is without merit.

Whether Wechem Carried its Burden of Proving Its Right to a Preliminary Injunction

In this assignment of error, Evans contends that Wechem failed to carry its burden of establishing its right to injunctive relief in the proscribed parishes of St. John, West Baton Rouge, West Feliciana, Livingston and St. Charles because Wechem failed to introduce any evidence at the hearing showing that it was carrying on a "like business" in each of these parishes. Further, Evans argues that one of the locations sought to be enjoined, Iberville Parish, was not included in the Agreement's list of proscribed parishes and thus, the injunction should be dissolved as to Iberville Parish. Evans further contends that Wechem failed to present sufficient evidence to establish its right to injunctive relief in the parishes of East Feliciana, Orleans and East Baton Rouge.

It is well established that an applicant seeking a preliminary injunction need only make a prima facie showing that he will prevail on the merits; thus, less proof is required than in an ordinary proceeding for a permanent injunction where the burden of proof is a preponderance of the evidence. See Sorrento Companies, Inc. v. Honeywell Int'l, Inc. , 04-1884 (La. App. 1 Cir. 9/23/05), 916 So.2d 1156, 1163, writ denied , 05-2326 (La. 3/17/06), 925 So.2d 541 ; State through Louisiana State Bd. of Examiners of Psychologists of the Dep't of Health and Human Services v. Atterberry , 95-0391 (La. App. 1 Cir. 11/9/95), 664 So.2d 1216, 1220 ; and Hailey v. Panno , 472 So.2d 97, 99 (La. App. 5th Cir. 1985). Moreover, La. R.S. 23:921 contemplates that the parishes specified in the Agreement must be parishes where the ex-employer actually has a location or customers. Cellular One, Inc. v. Boyd , 94-1783 (La. App. 1 Cir. 3/3/95), 653 So.2d 30, 33, writ denied , 95-1367 (La. 9/15/95), 660 So.2d 449. Employers are not permitted to lock former employees out of markets in which the employer does not operate. Id.

In order to enforce a non-competition agreement seeking to have an employee "refrain from carrying on or engaging in a business similar to that of the employer and/or from soliciting customers" within a certain geographical area, La. R.S. 23:921 requires the employer to specify in the Agreement the "parish or parishes, municipality or municipalities, or parts thereof," where the employer is carrying on a like business. In the instant case, in accordance with the statute, Wechem specifically set forth in the Agreement, which was admitted into evidence, the nine Louisiana parishes and one county in Mississippi wherein it was conducting business and to which the non-competition/non-solicitation provisions would apply. We find this sufficient evidence to establish a prima facie showing that Wechem was conducting business in those parishes for purposes of establishing a right to a preliminary injunction in this matter.

In VarTech , the defendants argued that the geographic limitation contained in the non-competition agreements at issue, which specifically listed all 64 parishes in the state as those to which the agreements would apply, was overly broad in that it included parishes in which VarTech did not do business. In upholding the injunction in favor of VarTech in all 64 parishes without evidence of doing "like business" on a parish-by-parish basis, the First Circuit noted that (1) the statute contemplates that the parishes the employer specifies in the agreement are those in which it has a location or customers, and (2) the defendants failed to offer any proof to show that the specification made by VarTech in its agreement was invalid. VarTech , 951 So.2d at 258 ; see also Hose Specialty & Supply. Co. v. Guccione , 03-823 (La. App. 5 Cir. 12/30/03), 865 So.2d 183, 194.

At the preliminary injunction hearing, Evans admitted to soliciting customers in Orleans, Jefferson, East Baton Rouge and East Feliciana Parishes, in addition to Hinds County, Mississippi. According to the Agreement, Wechem was also carrying on "like business" in the parishes of St. John, West Baton Rouge, West Feliciana, Livingston and St. Charles. There was no evidence adduced showing that the geographic locations specified by Wechem in the Agreement were invalid; i.e. , that they were not carrying on a like business in these parishes. See VarTech , 951 So.2d at 258 ; Hose Specialty & Supply. Co. v. Guccione , 865 at 194,. Thus, in the absence of such evidence in connection with Wechem's request for a preliminary injunction, we find no error in the trial court's finding that the geographic bounds set forth in the Agreement comply with the requirements of La. R.S. 23:921 and should be enforced for preliminary injunction purposes. This assignment of error lacks merit.

The Enforceability of the Trial Court's Order Granting Injunctive Relief

In his remaining assignments of error, Evans contends that the trial court erred in issuing a preliminary injunction that is overly broad and unenforceable under La. R.S. 23:921(C) because it prevents Evans from working in any capacity for any competitor of Wechem, including Momar, in the proscribed parishes. Alternatively, Evans avers that the trial court's order is null and void because it does not reasonably describe the prohibited conduct as required by La. R.S. 23:921. Evans also argues that, in contravention of the statute, the preliminary injunction impermissibly prohibits all solicitation without regard to any geographical limitation. We find these assignments of error have merit.

While we have determined that the Agreement's non-competition/non-solicitation provisions comport with the requirements of La. R.S. 23:921(C) and, as such, are enforceable, and that Wechem has made a prima facie showing that it is entitled to a preliminary injunction in this matter, we find that the portion of the trial court's judgment that enumerates the prohibited conduct goes beyond the restrictive contractual language contained in those provisions and thus is, as written, null and void. The trial court's order provides, in pertinent part:

IT IS ORDERED, ADJUDGED AND DECREED that WECHEM, Inc.'s Request for Preliminary Injunction is hereby GRANTED, and that Will Evans is prohibited from working for any Wechem competitor in the geographic area listed in the Agreement including but not limited to Momar; and that Will Evans is prohibited from directly or indirectly soliciting any Wechem customer that purchased Wechem products while Will Evans was employed by Wechem.

La. C.C.P. art. 3605 states that a preliminary injunction "shall describe in reasonable detail, and not by mere reference to the petition or other documents , the act or acts sought to be restrained." [Emphasis supplied.] Therefore, a judgment purporting to grant a preliminary injunction without describing the prohibited conduct with specificity would be null and void. Bernhard MCC, LLC v. Zeringue , 250 So.3d 342, 348 (2018) ; Phillips' Bar & Rest., Inc. v. City of New Orleans , 12-1396 (La. App. 4 Cir. 4/24/13), 116 So.3d 92, 108, writs denied , 13-1410 (La. 10/11/13), 123 So.3d 1226, and 13-1417 (La. 10/11/13), 123 So.3d 1227 ; Ormond Country Club v. Dorvin Developments, Inc. , 498 So.2d 144, 148 (La. App. 5 Cir. 1986), writ denied , 500 So.2d 423 (La. 1987). In Bernhard MCC, LLC , the only valid judgment of injunction contained absolutely no statement or description of the prohibited conduct. It simply stated that the plaintiff's petition for injunctive relief against the defendants "be and is hereby GRANTED ." Bernhard MCC, LLC , 250 So.3d at 348. This Court determined that because the judgment purporting to grant injunctive relief contained no language regarding the acts sought to be restrained, the judgment as written was null and void pursuant to La. C.C.P. art. 3605 and, therefore, we vacated the judgment and remanded the matter to the trial court for further proceedings. Id. at 349.

Unlike Bernhard , the judgment in the instant case, which grants the preliminary injunction, indeed contains a description therein of the prohibited conduct; however, the description of the prohibited conduct does not conform to the evidence introduced and the conduct proscribed in the Agreement upon which the judgment is based, and lists only by reference to the Agreement the geographical areas to which the injunction applies. Consequently, the judgment is impermissibly vague and overbroad and not sufficiently specific based upon the evidence presented. Specifically, the Agreement prohibits Evans, for or on behalf of any competitor of Wechem, directly or indirectly, from selling, attempting to sell, or soliciting the sale of products that are the same or similar to those products offered or sold by Wechem while Evans was in its employ. The prohibition is for a period of twenty-four months and is restricted to a specified geographical area. The trial court's injunctive order, however, instead of tracking the Agreement's language-which we find permissible-not only prohibits Evans from selling or soliciting the sale of the same or similar products for a Wechem competitor, it restricts Evans' from working in any capacity for a Wechem competitor "in the geographic area listed in the Agreement." The order contains no limitation on what type of work Evans is prohibited from pursuing.

In Yorsch v. Morel , supra , this Court held that a valid non-competition agreement may not prevent an employee from working in areas outside of his former employment. Yorsch , 223 So.3d at 1281. Similarly, we conclude that a trial court may not issue a preliminary injunction which prohibits an employee from working in an area outside of his former employment. In the case sub judice , the scope of the trial court's order prohibiting Evans from working in any capacity for a competitor of Wechem goes not only beyond that permitted by La. R.S. 23:921, but also goes beyond the actual scope of the Agreement. Consequently, we will amend the injunctive order in this respect to conform exactly with the language of the restriction set forth in the Agreement. See Fern Creek Owners' Ass'n, Inc. v. City of Mandeville , 08-1694 (La. App. 1 Cir. 6/30/09), 21 So.3d 369, 380 ; Gold & Suckle, Inc. v. Suckle , 335 So.2d 713, 717-718 (La. App. 2nd Cir.), writ denied , 338 So.2d 700 (La. 1976).

Additionally, non-competition and/or non-solicitation provisions that do not comply with La. R.S. 23:921, in that they do not adequately specify the geographic restrictions, are unenforceable. Yorsch , 223 So.3d at 1287, 1288. Similarly, we hold that a preliminary injunction that seeks to enjoin an employee from engaging in prohibited conduct, but does not specify the geographic limitations, is also null and void. In the instant case, one cannot ascertain from the trial court's order, as written, the applicable geographic area wherein Evans is enjoined from engaging in competing business or from soliciting Wechem customers. Therefore, we will amend the injunctive order in this regard to track the geographic area set forth in the Agreement. See Fern Creek , 21 So.3d at 380 ; Gold & Suckle, Inc. , 335 So.2d at 717-718.

CONCLUSION

For the foregoing reasons, we find, as a matter of law that the Agreement's non-competition and non-solicitation provisions comport with La. R.S. 23:921 and, thus, are valid and enforceable, and find that Wechem has made a prima facie showing that it is entitled to a preliminary injunction in this matter. Therefore, pursuant to the authority granted to appellate courts by La. C.C.P. art. 2164, to "render any judgment which is just, legal, and proper upon the record on appeal[,]" we hereby amend the trial court's October 31, 2018 order issuing a preliminary injunction in favor of Wechem, Inc. and against Will Evans to track the language of the Agreement's non-competition/non-solicitation provisions. Accordingly, Will Evans is prohibited from acting on behalf of himself or a competitor of Wechem, Inc. that is engaged in a business similar to the type of business conducted by Wechem, Inc., including but not limited to Momar, Inc., directly or indirectly: (1) from selling, attempting to sell, or soliciting, the sale of any janitorial, industrial, water treatment chemicals or products and industrial supplies that are of the same or similar kind as the chemicals, products, or supplies offered or sold by Wechem at any time during Evans' employment with Wechem; and (2) from soliciting or attempting to solicit any customer of Wechem, Inc. that purchased products from Wechem at any time during Evans' employment with Wechem. These prohibitions shall last for a period of twenty-four months from May 30, 2017, the date of Evans' separation from Wechem, Inc., and their application is restricted to the Louisiana parishes of East Baton Rouge, East Feliciana, Orleans, St. John, West Baton Rouge, Jefferson, West Feliciana, Livingston, and St. Charles, and Hinds County, Mississippi.

JUDGMENT AMENDED; JUDGMENT AFFIRMED, AS AMENDED.

      Though in Evans' brief on appeal, his counsel argues that the signature block on Kropog's email did not constitute an electronic signature, at the hearing on the preliminary injunction, Evans conceded that the email constituted a "writing" and that it bore an electronic signature at the bottom of the email document.

      Both Wechem and Momar sell janitorial supplies and water treatment chemicals used in HVAC machinery.

      Evans contends that Wechem has not paid commissions owed to him in accordance with the Agreement's compensation addendum from the fall of 2017 through the date of his resignation in May 2018.

      Wechem avers that, in contravention of the Agreement, Evans has sold products to the following entities: DHH East LA Mental Hospital (East Feliciana Parish); Mahalia Jackson Arts Center (Orleans Parish); Neuromedical Center (East Baton Rouge Parish); Trademark Property Company (East Baton Rouge Parish); Johnson Controls for Elayn Hunt Correctional Center (whose business offices are located in East Baton Rouge Parish and its facility is located in Iberville Parish); and Jefferson Parish - General Services.

      "[T]he Civil Code limits individuals' rights in other areas where a derogation of such rights would result in the individual becoming a public burden. An individual is forbidden from divesting himself of all his property by a donation inter vivos. La. C.C. art. 1497. Also, the right to contract not to compete is limited. La. R.S. 23:921. 'Both of these situations demonstrate the underlying state concern that a person cannot by convention deprive himself of the ability to support himself.' Note, Louisiana's Forbidden Antenuptial Waiver of Alimony Pendente Lite , 39 La.L.Rev. 1161, 1168 (1979)." McAlpine v. McAlpine , 94-1594 (La. 9/5/96), 679 So.2d 85, 91.

      In general, 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 establish a prima facie showing that it is entitled to the relief sought; that is, that the party will likely prevail on the merits of the case. H2O Hair, Inc. , 960 So.2d at 259. However, when an employee enters into an agreement with his employer not to compete and fails to perform his obligation under the agreement, pursuant to La. R.S. 23:921(H), 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 non-competition agreement. Id.

      We note that the trial court may reach a different conclusion following a full trial on the merits of the permanent injunction, where the burden of proof is higher. In Class Action Claim Services, LLC v. Clark , 04-591 (La. App. 5 Cir. 12/14/04), 892 So.2d 595, 600, this Court held a clause containing geographic limitations was severable from the remainder of the non-competition agreement. We stated: "Our review of the jurisprudence indicates that when a non-compete clause is overbroad in its geographical boundaries, the court should delete the overbroad portions and enforce the remainder of the geographic restriction provision." Id. See also , CBD Docusource, Inc. v. Franks , 06-167 (La. App. 5 Cir. 6/28/06), 934 So.2d 307, 310.

      The case upon which Bernhard relied, namely Phillips' Bar & Rest., Inc. v. City of New Orleans , 12-1396 (La. App. 4 Cir. 4/23/13), 116 So.3d 92, 108, writs denied , 13-1410 (La. 10/11/13), 123 So.3d 1226 and 13-1417 (La. 10/11/13), 123 So.3d 1227, also considered a judgment of injunction with no description of the prohibited conduct and, thus, the judgment was null and void under La. C.C.P. art. 3605. See also Lucky Coin Machine v. Hillensbeck, 00-0313 (La. App. 4 Cir. 1/31/01), 778 So.2d 1262, 1264 ; Vanvrancken v. Roy , 296 So.2d 460, 462 (La. App. 4th Cir. 1974).

      In particular, Evans argues the trial court's order, as written, prohibits him from performing "any work for his current employer" and from selling any Momar products regardless of whether the work/products actually compete with Wechem's business.

      In Yorsch , this Court held that a non-competition provision that placed impermissibly broad restrictions on a member of limited liability companies was null and void under La. R.S. 23:921 because it prohibited the member not only from engaging in competing activities, but also from rendering services of any kind to a competitor, and also did not adequately specify the geographic scope. Yorsch , 223 So.3d at 1286-87. We also determined that a non-solicitation provision failed to comply with La. R.S. 23:921 because it lacked a geographical limitation. Id. at 1288.

      In Fern Creek , 21 So.3d at 380, the First Circuit addressed the merits of a judgment granting an injunction and determined that while the granting of injunctive relief was proper, the judgment of injunction, which described prohibited conduct, was "impermissibly vague and overbroad" in that it did not conform to the clear evidence presented at trial or the specific relief that was sought. Consequently, the appellate court proceeded to amend the judgment, and then affirmed the judgment as amended, to-wit:
      In its second assignment of error, the City complains that the trial court's judgment is "vague" and enjoins activities not violative of the building restrictions. Louisiana Code of Civil Procedure article 3605 requires that "[a]n order granting ... a final injunction ... shall describe in reasonable detail, and not be mere reference to the petition and other documents , the act or acts sought to be restrained." (Emphasis added.) See, e.g. , Miller v. Knorr , 553 So.2d 1043 (La. App. 4th Cir. 1989), in this the judgment failed to describe an act sought to be restrained. We agree that the first numbered decretal paragraph of the judgment is impermissibly vague and overbroad based upon the foregoing standard, and should describe the enjoined activities with more detail, limited to those violations of the building restrictions that were proven at trial. We will accordingly amend that paragraph of the judgment to limit the injunction to those violations relating to the payment of Association dues or assessments by the City, the driveway, culvert, fence, equipment and machinery, debris and trash, and drainage pipe, as described in the following paragraphs. We will also amend certain other paragraphs of the judgment to provide the detail required by La. C.C.P. art. 3605, in conformity with the intent and tenor of the judgment and the evidence . [Bold emphasis added. Footnote deleted.]


text:
    Claude ROBINSON v. STATE of Louisiana
    NO. 18-KH-707
    Court of Appeal of Louisiana, Fifth Circuit.
    May 30, 2019
    WRIT GRANTED
    Relator, Claude Robinson, seeks review of the trial court's October 25, 2018 denial of his "Motion to Amend Sentence to Conform to Applicable Statutory Provisions of Act No. 45 ; S.B. No. 126, which Enacted la. R.S. 15:308 ; Correction of Illegal Sentence."
    In his motion, Relator requested an amendment of his life sentence in conformity with the provisions of Act. No. 45, enacting La. R.S. 15:308, which was approved by the legislature during the 2006 regular session. He argued that his habitual offender life sentence is no longer mandated and should be amended because the three prior felony convictions used are not all crimes of violence. In its opposition brief, the State argued that Relator's fourth offender adjudication is and was correct, and Relator should still receive a sentence of life imprisonment without parole. The trial court found the State's argument to be persuasive. The court then found Relator to be a fourth felony offender, and Relator's life sentence was mandatory.
    Relator committed the underlying offense on February 9, 2001. He was convicted on June 18, 2003. The State alleged that Relator had been previously convicted of four felony convictions, as well as the instant conviction of possession with the intent to distribute cocaine. However, based on the official record, Relator was adjudicated a fourth-felony offender based on three prior convictions and the instant conviction.
    The retroactive application of La. R.S. 15:308(B), enacted in 2006, applied to those persons "who committed crimes, who were convicted, or who were sentenced" under one of the enumerated offenses prior to June 15, 2001. Since relator committed the underlying offense prior to June 15, 2001, the ameliorative changes for certain offenses set forth in La. R.S. 15:308(B) and discussed in Esteen, supra , is applicable in this matter.
    La. R.S. 15:529.1(A)(1)(c)(ii) was amended in Act No. 403 of 2001 to provide that
    [i]f the fourth felony and two of the prior felonies are felonies defined as a crime of violence under R.S. 14:2(13) 2, a sex offense as defined in R.S. 15:540 et. seq. when the victim is under the age of eighteen at the time of commission of the offense, or as a violation of the Uniform Controlled Dangerous Substances Law punishable by imprisonment for ten years or more or of any other crime punishable by imprisonment for twelve years or more, or any combination of such crimes, the person shall be imprisoned for the remainder of his natural life, without benefit of parole, probation, or suspension of sentence.
    See La. R.S. 15:529.1.
    In its response to the motion to correct illegal sentence filed in the trial court, the State argued,
    When evaluating the Defendant's instant offense and predicate offenses, Defendant faced up to thirty years imprisonment for Possession of Cocaine with Intent to Distribute, Attempted Aggravated Rape was and is a crime of violence, and Defendant faced up to ten years imprisonment for Possession of Heroin (the State notes that part of the record seems to suggest that the predicate was Possession of Heroin with Intent to Distribute, but in actuality it was Possession of Heroin). Therefore, as to his fourth offender adjudication, Defendant should, under Act 403 of 2001, still be sentenced to life imprisonment without parole.
    However, according to the record, the State's position is inaccurate as to the possession of heroin conviction. While Relator's conviction for possession of heroin (case number 97-2815) was listed in the habitual offender bill and presented at the September 3, 2004 habitual offender bill hearing, that particular conviction was not listed as one of his predicate convictions in the October 1, 2004 Judgment and Reasons. Rather, in the October 1, 2004 Judgment and Reasons, the trial court stated that the State had proven three convictions and never mentioned the possession of heroin conviction in that judgment. Additionally, the October 1, 2004 transcript does not reflect that the trial court considered the conviction for heroin as a predicate conviction in its adjudication of relator as a fourth-felony offender. In particular, in both the October 1, 2004 Judgment and Reasons and the transcript, the trial court adjudicated relator a fourth-felony offender based on his prior felony convictions for attempted aggravated rape, several counts of theft valued between $ 100 to $ 500, as well as a theft valued between $ 100-$ 500.
    Furthermore, according to the October 22, 2004 sentencing transcript, the trial court stated, "In the instant case, this Court finds that Claude Robinson has four prior arrests and convictions, which make him subject to sentencing as a -- it says fifth felony offender, but there's actually only four that we can do under the law." However, on that date, the trial court indicated that the State had provided sufficient evidence that relator was properly advised of his rights in district court case number 97-2815 and that this conviction was within the appropriate time limits under the habitual offender bill statute. Therefore, the trial court determined that this was a fourth conviction under the habitual offender bill statute. As to the conviction in the underlying matter, the October 22, 2004 transcript reveals:
    This Court finds that the arrest and subsequent guilty verdict of the defendant for possession with the intent to distribute cocaine, in violation of Revised Statute 40:967(A) on June 18,2003, the instant case, subjects him to be sentenced as a fifth felony offender. Accordingly - well, I'm going to mark that as fourth. Accordingly, the defendant's previous convictions are admitted as a fourth under the Habitual Offender Act.
    Based on the record available to us, we find that the trial court did not use the predicate conviction for possession of heroin (district court case number 97-2815) in adjudicating relator a fourth-felony offender. In this particular matter, we find that the retroactive application of La. R.S. 15:308 based on the decision in Esteen is applicable.
    Accordingly, we vacate the trial court's October 25, 2018 Order that denied Relator's motion, grant Relator's motion for the reasons provided above, vacate Relator's habitual offender sentence, and remand the matter to the trial court for resentencing pursuant to Esteen .

      See , State v. Stokes , 18-846 (La. 11/5/18), 255 So.3d 1048.


author: CHAISSON, J.

text:
    ESTATE OF Cecile L. OUBRE, Oneal Oubre, Patrick Oubre, Maureen Oubre, Scarlette Oubre Charles, Bryant Oubre, Fergus Oubre, and Cornelia Oubre Solis v. Bryce RIGGS, Timothy Sutterfield, Allstate Insurance Company, and Goauto Insurance Company
    NO. 19-C-180
    Court of Appeal of Louisiana, Fifth Circuit.
    May 30, 2019
    COUNSEL FOR PLAINTIFF/RESPONDENT, ESTATE OF CECILE L.OUBRE, ONEAL OUBRE, PATRICK OUBRE, MAUREEN OUBRE, SCARLETTE OUBRE CHARLES, BRYANT OUBRE, FERGUS OUBRE, AND CORNELIA OUBRE SOLIS, Tyler S. Loga, Eric A. Bopp, Walter R. Woodruff, Jr.
    COUNSEL FOR DEFENDANT/RELATOR, GOAUTO INSURANCE COMPANY, Bobby J. Triche, Michelle DeLoach Brooks, Marla Mitchell Abel, Michael G. Gee
    COUNSEL FOR DEFENDANT/RESPONDENT, BRYCE RIGGS AND ALLSTATE INSURANCE COMPANY, James L. Donovan, Jr.
    Panel composed of Judges Susan M. Chehardy, Robert A. Chaisson, and John J. Molaison, Jr.
   CHAISSON, J.

In this survival and wrongful death action, GoAuto Insurance Company ("GoAuto") seeks this Court's supervisory review of a judgment of the trial court on the parties' competing motions for summary judgment on the issue of the validity of a purported rejection of uninsured/underinsured ("UM") motorist coverage. In its judgment, the trial court denied GoAuto's amended motion for summary judgment seeking a ruling that UM coverage had been validly rejected, and granted plaintiffs' motion for summary judgment finding that there was not a valid rejection of UM coverage. For the following reasons, we reverse the judgment of the trial court on both motions for summary judgment, grant summary judgment in favor of GoAuto, and dismiss plaintiffs' suit as to GoAuto only, with prejudice.

FACTS AND PROCEDURAL HISTORY

On December 28, 2016, Cecile L. Oubre was a guest passenger in a vehicle driven by Arlene Richard, when they were involved in a two-vehicle accident that resulted in the deaths of both Ms. Oubre and Ms. Richard. Thereafter, the Estate of Cecile L. Oubre and her surviving children, respondents to this writ application (hereinafter "plaintiffs"), filed suit against both the driver and owner of the other vehicle and their insurance company. In their petition, plaintiffs alleged that the other driver was at fault in causing the accident and that he was either uninsured or underinsured. Plaintiffs therefore also named GoAuto as a defendant to the suit, alleging that it issued a policy to Ms. Richard that included UM insurance, which also covered the damages suffered by Ms. Oubre, her guest passenger.

In response to plaintiffs' suit, GoAuto filed a motion for summary judgment contending that Ms. Richard's policy did not include UM coverage because Ms. Richard had rejected such coverage. Plaintiffs thereafter filed a competing motion for partial summary judgment contending that the purported rejection of UM coverage executed by Ms. Richard was facially invalid and that the policy therefore provided UM coverage.

After a hearing on the competing motions for summary judgment, the trial court denied GoAuto's amended motion for summary judgment, and granted plaintiffs' motion for summary judgment finding that there was not a valid rejection of UM coverage. It is from this judgment that GoAuto now seeks our supervisory review. Pursuant to the recently enacted requirements of La. C.C.P. art. 966(H), we assigned this matter for briefing by the parties and heard oral arguments.

DISCUSSION

A motion for summary judgment shall be granted if the motion, memorandum, and supporting documents 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(A)(3). The burden of proof rests with the mover. La. C.C.P. art. 966(D). However, if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. Id. The burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law. Id. ; Dillenkofer v. Marrero Day Care Ctr., Inc. , 16-713 (La. App. 5 Cir. 5/24/17), 221 So.3d 279, 282.

The interpretation of an insurance policy is usually a legal question that can be properly resolved on a motion for summary judgment. Elliot v. Holmes , 15-296 (La. App. 5 Cir. 11/19/15), 179 So.3d 831, 835. Appellate courts review the granting or denying of a summary judgment de novo , using the same criteria applied by the trial courts to determine whether summary judgment is appropriate. Id.

In support of its amended motion for summary judgment, GoAuto introduced a copy of Ms. Richard's automobile policy in effect on the date of the accident which includes an Uninsured/Underinsured Motorist Bodily Injury Coverage Form signed by Ms. Richard on July 6, 2015. On that form, Ms. Richard placed her initials next to the option stating, "I do not want UMBI Coverage. I understand that I will not be compensated through UMBI coverage for losses arising from an accident caused by an uninsured/underinsured motorist." GoAuto argues that Ms. Richard validly rejected UM coverage and that said coverage is therefore not available to plaintiffs herein.

To the contrary, plaintiffs contend that the purported rejection form is invalid because it does not comport with the requirements of a valid rejection of UM coverage enunciated by the Louisiana Supreme Court in Duncan v. U.S.A.A. Ins. Co. , 06-363 (La. 11/29/06), 950 So.2d 544. In Duncan , the Court held that there are six tasks necessary for there to be a valid rejection of UM coverage: (1) initialing the selection or rejection of coverage chosen; (2) if limits lower than the policy limits are chosen, then filling in the amount of coverage selected for each person and each accident; (3) printing the name of the named insured or legal representative; (4) signing the name of the named insured or legal representative; (5) filling in the policy number; and (6) filling in the date. Id. at 551.

Specifically, plaintiffs contend that the form executed by Ms. Richard is facially invalid because, of the four options shown on the form preceded by a line for the possible placement of the insured's initials, the first three lines all have a pre-printed "N/A" placed on the lines, leaving only the fourth line available for the complete rejection of UM coverage. Plaintiffs maintain that the presentation of the form to Ms. Richard in this manner violates the first requirement of Duncan , i.e. , "initialing the selection or rejection of coverage chosen " (emphasis added), because in effect, Ms. Richard was given no choice other than to completely reject UM coverage. In support of their argument, plaintiffs refer this Court to the Third Circuit Court of Appeals decision in Higginbotham v. USAgencies Cas. Ins. Co. , 17-491 c/w 17-497 (La. App. 3 Cir. 6/13/18), 247 So.3d 916, wherein that Court found that because of the use of a pre-printed "N/A" mark on some of the lines for selection of differing UM coverages, the form was facially invalid and the policy therefore afforded UM coverage.

For the following reasons, we disagree with the arguments of plaintiffs. On the form, the first numbered option was for the selection of UM coverage with limits lower than the Bodily Injury Liability Coverage limits indicated on the policy. Because Ms. Richard's policy was for the minimum statutorily required liability coverage, there was no UM coverage with lower limits available to her. The second and third numbered options were for the selection of "Economic-Only" UM coverage, a type of coverage which was not available from GoAuto. Therefore, the placement of a pre-printed "N/A" mark next to each of these three options was a correct indication to Ms. Richard that these options were not available to her. It was not the placement of the "N/A" marks next to these options that prevented Ms. Richard from making these selections, it was the minimum limits of liability coverage she selected and the unavailability of "Economic-Only" UM coverage from GoAuto that prevented her from making these selections.

Contrary to plaintiffs' assertions that the placement of an "N/A" mark next to the first three options may have confused Ms. Richard into believing that she was required to choose the only remaining numbered option, i.e. , complete rejection of UM coverage, we find that omitting the "N/A" marks next to options that were simply not available to Ms. Richard would serve no purpose.

Rather than the presence or absence of pre-printed "N/A" marks next to options which were not available to Ms. Richard, it is the clear and unambiguous language of the form that indicates to Ms. Richard what her options were as they related to UM coverage. Above the four printed options, the form states: "By law, your policy will include UMBI coverage at the same limits as your Bodily Injury Liability Coverage unless you request otherwise. If you wish to reject UMBI Coverage, select lower limits of UMBI Coverage, or select Economic-Only UMBI Coverage, you must complete this form and return it to your insurance agent or insurance company" (emphasis added). The form then states, immediately prior to the four numbered options, that "You may select one of the following UMBI Coverage options (initial only one option)."

We find that in very clear and plain language, the form indicated to Ms. Richard what the default position was (i.e. , UM coverage at the same limits as her bodily injury liability coverage), and that she only needed to complete the form if she chose an option other than the default position. In this case, Ms. Richard chose the only other option that was available to her, which was the complete rejection of UM coverage. Nothing in this language indicated to Ms. Richard that she was required to complete the form or that she was required to choose a rejection of UM coverage.

We conclude that the form used by GoAuto, even with the pre-printed "N/A" marks next to three of the options, fully complied with the requirements for selection, or rejection, of UM coverage, as enunciated by the Supreme Court in Duncan and is not facially invalid. Ms. Richard validly rejected UM coverage for her policy and therefore no UM coverage is available to plaintiffs under Ms. Richard's policy.

CONCLUSION

We grant GoAuto's writ application and reverse the judgment of the trial court. We further grant GoAuto's amended motion for summary judgment and dismiss GoAuto from this suit with prejudice, and remand this matter to the trial court for further proceedings.

WRIT GRANTED; JUDGMENT REVERSED; GOAUTO'S AMENDED SUMMARY JUDGMENT GRANTED AND CASE DISMISSED WITH PREJUDICE AS TO GOAUTO ONLY; REMANDED

      GoAuto filed an amended motion for summary judgment attaching a copy of the disputed insurance policy that appears to have been inadvertently not attached to its original motion for summary judgment.

      We note that the First, Second and Fourth Circuits have all reached the opposite conclusion in cases that are factually similar. See Taylor v. U.S. Agencies Cas. Ins. Co. , 09-1599 (La. App. 1 Cir. 4/7/10), 38 So.3d 433 ; Succession of James B. Greer, et al v. Darryl L. Mills , 41,571 (La. App. 2 Cir. 11/1/06), 942 So.2d 634 ; and Rapalo-Alfaro v. Lee , 15-0209 (La. App. 4 Cir. 8/12/15), 173 So.3d 1174.

      Presumably, if Ms. Richard had attempted to select one of these three options that were not available to her, the form would have been declined by GoAuto.