author: J^PETTIGREW, J. hDOWNING, J.,

text:
    LOUISIANA PUBLIC FACILITIES AUTHORITY v. ALL TAXPAYERS, PROPERTY OWNERS, CITIZENS OF the STATE OF LOUISIANA AND NONRESIDENTS OWNING PROPERTY OR SUBJECT TO TAXATION THEREIN, and All Other Persons Interested in or Affected in Any Way by the Issuance of Not to Exceed $90,000,000 of Louisiana Public Facilities Authority Revenue Bonds (Tiger Athletic Foundation Project) in One or More Series or by the Execution of the Cooperative Endeavor and Lease Agreement by and Between the Board of Supervisors of Louisiana State University and Agricultural and Mechanical College and Tiger Athletic Foundation with Respect to Improvements to LSU Tiger Stadium. Donald C. Hodge, Jr. v. Board of Supervisors of Louisiana State University and Agricultural and Mechanical College.
    Nos. 2003 CA 2738, 2003 CA 2739.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 23, 2003.
    Writ Denied March 11, 2004.

      Donald C. Hodge, Jr., Baton Rouge, Appellant In Proper Person.
    C. Stokes McConnell, Jr., Michael A. Patterson, Gerald L. Walter, Jr., Brandon K. Black, P. Raymond Lamonica, Baton Rouge, Counsel for Appellees Louisiana Public Facilities Authority and Board of Supervisors of Louisiana State University Agricultural and Mechanical College.
    Before: PARRO, PETTIGREW, DOWNING, GAIDRY, and McDONALD, JJ.
   J^PETTIGREW, J.

This is an appeal of a judgment rendered in favor of the Board of Supervisors (“Board”) of Louisiana State University Agricultural and Mechanical College (“LSU”) and the Louisiana Public Facilities Authority (“the Authority”), declaring valid and legal a bond issuance and related contracts prepared in conjunction with a cooperative endeavor between LSU and the Tiger Athletic Foundation (“Foundation”) to make improvements to Tiger Stadium and for the construction of a Football Operations Center, amounting to some $90,000,000.00. In a consolidated suit, filed by an LSU student, a petition for injunction seeking to enjoin a proposed raise in the price of Tiger Stadium football tickets was dismissed. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

On August 21, 2003, a special meeting of the LSU Board was held for the purpose of voting on a new “General Pricing Policy For Home Football Games” for the 2004 football season and thereafter (“general pricing policy”). The new policy was passed. In the general pricing policy, the price of single game football tickets was raised from $32.00 to $36.00, with season tickets to be priced at $252.00 for seven home games and $216.00 for six home games. A previously existing $4.00 surcharge on single tickets and a previously existing season ticket surcharge of either $25.00 or $50.00 per seat per season was discontinued. However, the requirement of a “donation” or “contribution” in support of the LSU athletic department, ranging from $85.00 to $400.00 per seat per year for season tickets, was inserted into the pricing policy.

1 ¡¡On September 26, 2003, a “Cooperative Endeavor and Lease Agreement” (“Cooperative Endeavor”) was signed by Mark A. Emmert, Chancellor of LSU; William L. Jenkins, President of Louisiana State University System; and R.G. Richard, CEO of the Foundation. The Cooperative Endeavor provided for a lease of the property and facilities at issue from LSU to the Foundation in exchange for the Foundation’s paying an annual rental of $25,000.00, and the Foundation’s agreement to complete the specified repairs, renovations, and construction projects. The lease term for the ground was to be fifty years, while the lease term for the facilities was to commence on the date of “Substantial Completion” of the improvements and terminate on March 31, 2041, with a renewal option.

In the Cooperative Endeavor, the Foundation agreed to lease the facilities to LSU, excepting a certain number of “Foundation Club Seats,” upon payment by LSU of $2,500,000.00 per year beginning on September 1, 2005. In addition to other agreements, provisions, and terms not pertinent to this litigation, the Cooperative Endeavor further provided that the Foundation would arrange for construction of the improvements in accordance with plans and specifications contained therein. It was agreed that construction would commence not later than twelve months from the approval of the plans and specifications or from the effective date of the agreement, whichever was later. The Foundation further agreed not to encumber the property without prior LSU approval, “other than the pledge and assignment of, and grant of security interest in and to the LSU Rent, and the donations, rents, revenues, premiums, and profits derived from the sale of tickets by Foundation in Tiger Stadium and revenues received by Foundation pursuant to Qualified Corporate Sponsorships [corporate scoreboard sponsorships] |4to secure its obligations relating to the Bonds and to any Credit Enhancement Provider [issuer of letters of credit or bond insurance].”

Financing of the project was evidenced by a “Loan Agreement” between the Authority and the Foundation, as well as by a “Trust Indenture” between the Authority and Bank One, both of which were dated November 1, 2003. In addition, an “Act of Assignment of Pledged Revenue and Security Agreement” was entered into between the Foundation and Hibernia National Bank (“Hibernia”), which included a pledge of revenue generated from Tiger Stadium. The affidavits of Elizabeth St. Paul, Vice President of Hibernia, and LSU President William L. Jenkins, were made a part of the record; these affidavits attested that the validity of the football ticket pricing policy at issue herein and the pledge of that revenue was an integral part of the financing arrangements for the overall project.

Prior to the hearing on this matter, Mr. Hodge, LSU, and the Authority entered into a written “Joint Stipulation of Facts,” which was introduced into evidence and revealed the following facts: On August 21, 2003, the LSU Board authorized execution of a Cooperative Endeavor between LSU and the Foundation and authorized Jenkins to do all things necessary to implement the agreement; the board of directors of the Foundation authorized the Cooperative Endeavor; execution of the Cooperative Endeavor will result in more than $55 million in improvements to Tiger Stadium to be constructed by the Foundation; the Foundation will also construct a new West Side Upper Deck; general stadium improvements will be transferred to LSU pursuant to the Cooperative Endeav- or; the combined costs to the Foundation will be $67 million; pursuant to the lease agreement, the Foundation and LSU agreed the Foundation will construct a | fifootball operations center costing $15 million; over the past three years, the LSU Athletic Department contributed approximately $2.5 million of its revenue to the LSU Board for academic purposes; lease of the completed West Side addition by the Foundation to LSU will be recorded on the financial statements of the LSU Board as an operating lease; as an operating lease, the payment obligation of the LSU Board will not constitute a “net state tax supported debt” under 1993 La. Acts, No. 813, the Debt Limitation Law; the Authority adopted a resolution to authorize issuance of the bonds; an executed copy of the cooperative endeavor was attached to the stipulations; the “Trust Indenture,” loan agreement, and assignments were legally approved; there was evidence of requisite publication; the State Bond Commission and the Attorney General’s office were properly notified; and all pertinent minutes, associated documents, and proofs thereof were submitted to the court. It was further verbally stipulated on the day of the hearing that, “[t]he authority having been delegated, the LSU Board of Supervisors does not act at formal meetings to give specific approval for each of the following items: number one, housing rent; number two, concession prices; number three, bookstore merchandise; number four, veterinary services; number five, copy costs; number six, theater tickets; number seven, fees paid by students for pharmacy, laboratory and x-ray services.”

Following the November 18, 2003 hearing, the trial court rendered judgment in favor of the Authority in suit number 512,-751, validating the bond issuance and LSU ticket pricing policy, and against the plaintiff in suit number 512,930, denying injunc-tive relief. Mr. Hodge filed the instant appeal, which was assigned expedited status in accordance with La. R.S. 13:5121 et seq. On appeal, Mr. Hodge assigns |fias error the trial court’s finding that the “fee assessed by [LSU] for the right to purchase season tickets, is not a fee as understood by Art. VII, Sec. 2.1 of the Louisiana State Constitution.”

DISCUSSION

The constitutional provision at issue in this dispute is La. Const. Art. VII, § 2.1, which provides as follows:

§ 2.1. Fees and Civil Fines; Limitation

Section 2.1. (A) Any new fee or civil fine or increase in an existing fee or civil fine imposed or assessed by the state or any board, department, or agency of the state shall require the enactment of a law by a two-thirds vote of the elected members of each house of the legislature.
(B) The provisions of this Section shall not apply to any department which is constitutionally created and headed by an officer who is elected by majority vote of the electorate of the state. [Emphasis added.]

Louisiana Constitutional Article VII, § 2.1 was enacted by 1995 La. Acts, No. 1324, § 1, was approved by the electorate on October 21, 1995, and became effective November 23, 1995. At issue in the present dispute is whether the word “fee” includes the cost charged by LSU for football tickets.

As there is no jurisprudence interpreting this 1995 constitutional provision, the issue before this court is res nova among the courts of Louisiana. However, the Louisiana Attorney General has opined that charges by LSU for admittance to |7extracurricular activities do not constitute “fees” within the meaning of La. Const. Art. VII, § 2.1, reasoning as follows:

The Louisiana State University System is created and exists for the sole purpose of providing public higher education to the citizens of this State. This is its governmental function. Those charges which are assessed for the provision of higher education to LSU students would be considered fees for purposes of Article 7, Section 2.1. Any charges which are for services or products which are not directly a part of the delivery of an education are not considered fees. Thus, ... it is the opinion of this office that student housing, food services, book store merchandise, medical or veterinary services and admittance to extracurricular events are not directly a part of the governmental , function of providing higher education, thus, charges for these goods and services would not be considered fees.

La. Atty. Gen. Op. No. 01-165 (May 4, 2001). See also La. Atty. Gen. Op. No. 96-353 (October 9, 1996).

The trial court, in ruling in favor of appellees, cited the attorney general opinion, finding the position espoused therein persuasive. The trial court emphasized the attorney general’s view that “fees” do not include charges for auxiliary, self-generating, extra-curricular activities at LSU. The trial court further adopted the rationale of the attorney general that since the governmental function of LSU is to provide higher education to citizens of this state, charges for services not directly a part of the delivery of an education are not considered fees for purposes of La. Const. Art. VII, § 2.1.

The interpretation of constitutional provisions was recently discussed by the supreme court in East Baton Rouge Parish School Bd. v. Foster, 2002-2799, pp. 16-17 (La.6/6/03), 851 So.2d 985, 996, wherein it was stated:

The starting point in the interpretation of constitutional provisions is the language of the constitution itself. When a constitutional provision is plain and unambiguous, and its application does not lead to absurd consequences, its language must be given effect.
When the constitutional language is subject to more than one reasonable interpretation, however, the determination of the intent of the provision becomes necessary. In seeking to ascertain constitutional intent, the same general rules used in interpreting laws |sand written instruments are followed. This court has stated that the function of a court in construing constitutional provisions is to ascertain and give effect to the intent of the people who adopted it. Additionally, we have determined that the understanding that can reasonably be ascribed to the voting population as a whole controls the interpretation. In other cases, however, this court has stated that in construing constitutional provisions, a court should ascertain and give effect to. the intent of both the framers of the amendment and of the people who adopted it. All of these principles are correct statements of law. Nevertheless, to harmonize them, we will add that in construing an ambiguous constitutional provision, a court should ascertain and give effect to the intent of both the framers of the provision and of the people who adopted it; however, in the case of an apparent conflict, it is the intent of the voting population that controls. [Citations omitted.]

The term “fee,” as used in La. Const. Art. VII, § 2.1, was not defined in the Louisiana Constitution or elsewhere in the laws of Louisiana. The use of the word fee is nevertheless used to address a variety of monetary charges imposed under state law, including: filing fees, license fees, recordation fees, registration fees, inspection fees, membership fees, finance servicing fees, airport use fees, attorney fees, etc.

The definition of “fee” as found in Black’s Law Dictionary (5th ed.1979), is as follows, in pertinent part:

A charge fixed by law for services of public officers or for use of a privilege under control of government. A recompense for an official or professional service or a charge or emolument or compensation for a particular act or service. A fixed charge or perquisite charged as recompense for labor, reward, compensation, or wage given to a person for performance of services or something done or to be done. [Citations omitted; emphasis added.]

Arguably, admission to Tiger Stadium is a privilege under control of the State of Louisiana by means of the rules, regulations, and charges imposed by LSU for the right to occupy a specified seat in the stadium in order to watch a football game. Nevertheless, were this court to interpret La. Const. Art. VII, § 2.1 as including within its purview the amount charged for a football ticket as a “fee,” then many other similar services and/or privileges would fall within the meaning of a fee as well. Although appellees’ argument that goods such as textbooks, pencils, |gand popcorn would thereby be included is overly broad, at the very least other admission costs for access to governmental controlled facilities would then become implicated as “fees”; such as, the admission price of parks, zoos, museums, theatres, and the like.

When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature. Tarver v. E.I. Du Pont De Nemours and Co., 93-1005, p. 3 (La.3/24/94), 634 So.2d 356, 358. See also Bunch v. Town of St. Francisville, 446 So.2d 1357, 1360 (La.App. 1 Cir.1984).

Because of the many and varied uses of the word “fee” in the laws of this state, it is unclear from a plain reading of La. Const. Art. VII, § 2.1 exactly what meaning was ascribed to the word therein. In such a case, when the constitutional language is subject to more than one reasonable interpretation, the supreme court directs the courts to attempt to determine and give effect to the intent of both the framers of the amendment and of the people who adopted it. Foster, 2002-2799 at 16, 851 So.2d at 996.

Every bill shall contain a brief title indicative of its object. La. Const. Art. Ill, § 15. Thus, the title and preamble to a statute properly may be consulted to determine legislative intent. Hoag v. State ex rel. Kennedy, 2001-1076, p. 10 (La.App. 1 Cir. 11/20/02), 836 So.2d 207, 216-217, writ denied, 2002-3199 (La.3/28/03), 840 So.2d 570. The legislative history of a statute and related legislation also provides a particularly helpful guide in ascertaining the intent of a statute. Hoag, 2001-1076 at 10, 836 So.2d at 217.

As previously indicated, La. Const. Art. VII, § 2.1 was enacted by 1995 La. Acts, No. 1324, which reads as follows:

J^HOUSE BILL No. 320 BY REPRESENTATIVE GUNN AND JENKINS A JOINT RESOLUTION
Proposing to add Article VII, Section 2.1 of the Constitution of Louisiana, to provide that any new fee or civil fine or existing fee or civil fine imposed or assessed by the state or any board, department, or agency of the state must receive at least a two-thirds vote of each house of the legislature; to provide for submission of the proposed amendment to the electors; and to provide for related matters.
Section 1. Be it resolved by the Legislature of Louisiana, two-thirds of the members elected to each house concurring, that there shall be submitted to the electors of the state of Louisiana, for their approval or rejection in the manner provided by law, a proposal to add Article VII, Section 2.1 of the Constitution of Louisiana, to read as follows:
§ 2.1. Fees and Civil Fines; Limitation
Section 2.1. (A) Any new fee or civil fine or increase in an existing fee or civil fine imposed or assessed by the state or any board, department, or agency of the state shall require the enactment of a law by a two-thirds vote of the elected members of each house of the legislature.
B. The provisions of this Section shall not apply to any department which is constitutionally created and headed by an officer who is elected by majority vote of the electorate of the state.
Section 2. Be it further resolved that this proposed amendment shall be submitted to the electors of the state of Louisiana at the gubernatorial primary election to be held in 1995.
Section 3. Be it further resolved that on the official ballot to be used at said election there shall be printed a proposition, upon which the electors of the state shall be permitted to vote FOR or AGAINST, to amend the Constitution of Louisiana, which proposition shall read as follows:
To provide that any new fee or civil fíne or increase in an existing fee or civil fine imposed or assessed by the state or any board, department, or agency of the state must receive at least a two-thirds vote of the elected members of each house of the legislature. To exempt departments which are constitutionally created and headed by a statewide elected official. (Adds Article VII, Section 2.1)

In examining the intent of the legislature, a court may take judicial notice of the journals of the houses of the state legislature, as well as records of legislative committee proceedings, where preserved, as they are a matter of public record. See University Properties Corp. v. Fidelity Nat. Bank of Baton Rouge, 500 So.2d 888, 906 n. 5 (La.App. 1 Cir.1986), writ denied, 501 So.2d 762 (La.1987). See also Heinhuis v. Venture Associates, Inc. of Louisiana, 558 So.2d 1244, 1247 (La.App. 1 Cir.), writs denied, 559 So.2d 1369, 1385 (La.1990).

Originally, Act 1324 (House Bill 320) was an amendment to La. Const. Art. VII, § 2, which provides:

§ 2. Power to Tax; Limitation

Section 2. The levy of a new tax, an increase in an existing tax, or a repeal of an existing tax exemption shall require the enactment of a law by two-thirds of the elected members of each house of the legislature.

The text of original House Bill 320 was as follows:

§ 2. Power to Tax; Limitation; Fees and Fines

Section 2. (A) The levy of a new tax, an increase in an existing tax, or a repeal of an existing tax exemption shall require the enactment of a law by two-thirds of the elected members of each house of the legislature.
(B) Any new fee or fine or increase in an existing fee or fine shall require the enactment of a law by a two-thirds vote of the elected members of each house of the legislature. [Original underscoring indicated proposed amendment.]

However, the final version of the bill separated the proposed amendment into a separate sub-section, 2.1.

The bill was referred to both the Committee on Ways and Means and the Civil Law and Procedure Committee. Legislative transcription of the April 25, 1995 discussions before the Committee on Ways and Means reflected, in pertinent part:

Representative Gunn stated that according to research provided by the legislative fiscal officer, fees have increased from $426 million to $933 million since 1988. He said that very few of those increases were voted on by the legislature; the fees were imposed through the Administrative Procedure Act.
Representative Reilly said that he supported the legislation. He said that fees should have the same legislative review as taxes, especially due to the fact that it is often difficult to distinguish between a fee and a tax.
| ^Representative Landrieu submitted that the problem with taxes, according to some citizens, is that taxes are being used to subsidize government programs for people who will not pay for themselves, and what really should be done is to go on a “pay as you go” basis. He said that the “pay as you go” basis is the idea behind fees. Representative Lan-drieu said that it is inconsistent to treat fees and taxes in the same manner.
Representative Odinet offered amendments ... [and] said that this would allow the legislature to have oversight over all fees.
Representative Copelin commented on emergency rule provisions in the Administrative Procedure Act. He said that often after an emergency rule is put into effect, the permanent fee becomes effective without review.

Legislative transcription of the May 1, 1995 discussion before the Civil Law and Procedure Committee reflected, in pertinent part:

In response to questioning by Representative Bowler, Representative Gunn said the proposed legislation would apply to all fees imposed by the state.

This court has further reviewed the audiotapes of these legislative committee meetings, which are public records. These audiotapes revealed the legislative transcriptions to be accurate and reflective of the discussions held before these committees regarding Act 1324. An additional point made clear from the audiotapes was expressed by Representative Landrieu, who distinguished a fee from a tax by explaining that the purpose of a fee is to place the cost burden on the citizen receiving a service for which a fee is imposed, rather than on the general taxpayer by means of taxes.

The summary of the discussions reflect that the legislature desired to impose legislative control on fees charged in connection with government “programs” for services to citizens that might otherwise be provided by the government and funded by taxation. The legislators were concerned that an excess number of these fees were being imposed or increased by means of emergency procedures provided for under the Administrative Procedure Act, La. R.S. 49:950 et seq. (“APA”); and | ^because these fees were likened to taxes, the legislature felt their implementation and/or increase should be controlled by the legislature.

Laws in pari materia on the issue of fees can be found in La. R.S. 49:951-971 of the APA. By means of 1987 La. Acts, No. 240, language was added to amend and reenact R.S. 49:951 and 968, and to enact R.S. 49:968.1 of the APA, to exclude proposed agency fee adoptions, increases, and decreases from inclusion within agency rule-making authority, to provide for legislative oversight of proposed agency fee actions, to provide for legislative rejection of proposed fee adoptions, increases, and decreases and to provide for related matters. Further amendment of these provisions to provide greater oversight of agency fee assessment was enacted by 1995 La. Acts, No. 1057. APA provisions currently addressing agency fees include La. R.S. 49:951(6) and (7), which provide:

(6) “Rule” means each agency statement, guide, or requirement for conduct or action, exclusive of those regulating only the internal management of the agency and those purporting to adopt, increase, or decrease any fees imposed on the affairs, actions, or persons regulated by the agency, which has general applicability and the effect of implementing or interpreting substantive law or policy, or which prescribes the procedure or practice requirements of the agency. “Rule” includes, but is not limited to, any provision for fines, prices or penalties, the attainment or loss of preferential status, and the criteria or qualifications for licensure or certification by an agency. A rule may be of general applicability even though it may not apply to the entire state, provided its form is general and it is capable of being applied to every member of an identifiable class. The term includes the amendment or repeal of an existing rule but does not include declaratory rulings or orders or any fees.
(7) “Rulemaking” means the process employed by an agency for the formulation of a rule. Except where the context clearly provides otherwise, the procedures for adoption of rules and of emergency rules as provided in R.S. 49:953 shall also apply to adoption of fees. The fact that a statement of policy or an interpretation of a statute is made in the decision of a case or in an agency decision upon or disposition of a particular matter as applied to a specific set of facts involved does not render the same a rule within this definition or constitute specific adoption thereof by the agency so as to be required to be issued and filed as provided in this Subsection. [Emphasis added.]

| uThe expressed purpose of La. R.S. 49:968(A) is “to provide a procedure whereby the legislature may review the exercise of rule-making authority and the adoption, increasing, or decreasing of fees, extensions of the legislative lawmaking function, which it has delegated to state agencies.” The issue of agency fee assessment is further addressed in La. R.S. 49:971, wherein agencies are directed to submit a proposed fee adoption, increase, or decrease to specified legislative committees for review.

Though the term “fee” is not specifically defined in the APA, we can glean from La. R.S. 49:951(6) that “fees” are charges “imposed on the affairs, actions, or persons regulated by the agency.” (Emphasis added.) It is also important to note the provision in La. R.S. 49:951(7) extending application of the APA to “the procedures for adoption of rules and of emergency rules as provided in R.S. 49:953 shall also apply to adoption of fees” “[e Except where the context clearly provides otherwise.” (Emphasis added.)

Also pertinent to this discussion are other laws respecting LSU, both currently and in terms of the historical treatment of LSU by the legislature.

The responsibility in the legislature for the education of the people of this state, by the establishment and maintenance of a public educational system, is provided by La. Const. Art. VIII, § 1. With respect to higher education, the Board of Regents was created by La. Const. Art. VIII, § 5 to manage the following functions of all public postsecondary education: to exercise budgetary responsibility; to approve, disapprove, modify, revise, or eliminate an existing or proposed degree program, department of instruction, division, or similar subdivision; to study the need for and feasibility of creating a new institution of postsecondary education, including modifying degree programs, merging institutions of postsecondary education, establishing a new management board, or transferring a college or university from one board to another; to formulate and |1Kmake timely revision of a master plan for postsecondary education that shall include a formula for equitable distribution of funds to the institutions of postsecondary education; to require that every postsecondary education board submit to it an annual budget proposal for operational needs and for capital needs of each institution under the control of each board; submit its budget recommendations for all institutions of postsec-ondary education in the state; and recommend priorities for capital construction and improvements.

It was specifically provided in La. Const. Art. VIII, § 5 that powers of management over public institutions of post-secondary education not specifically vested by Section 5 in the Board of Regents are reserved to the Board of Supervisors of Louisiana State University and Agricultural and Mechanical College, the Board of Supervisors of Southern University and Agricultural and Mechanical College, the Board of Trustees for State Colleges and Universities, the Board of Supervisors of Community and Technical Colleges, and any other such board created pursuant to this Article, as to the institutions under the control of each. Further, La. R.S. 17:3130(A) similarly provides:

All powers of management over public institutions of higher education not specifically vested in the Board of Regents by Article VIII, Section 5 of the Constitution of Louisiana, are reserved to the Board of Supervisors of Louisiana State University and Agricultural and Mechanical College, the Board of Supervisors of Southern University and Agricultural and Mechanical College, the Board of Supervisors of Community and Technical Colleges, and the Board of Trustees for State Colleges and Universities, as to the institutions under the control of each.

More specifically, La. R.S. 17:1552 vests the Board “with full authority to determine the location of and acquire the land and buildings deemed necessary for the establishment of such branch.”

Even though the Board of Regents is given ultimate budgetary and curricular control by La. Const. Art. VIII, § 1, all other decision-making responsibility is retained in the LSU Board. This deference to LSU’s self-governance is rooted in Instate history. The supreme court in Roy v. Edwards, 294 So.2d 507 (La.1974), recognized the state’s historical tradition of providing autonomy to LSU, citing its prior opinion of Student Government Associ ation of L.S.U. v. Board of Supervisors, 262 La. 849, 264 So.2d 916 (1972), wherein it was stated:

In his 1940 message to the Legislature, the Governor of Louisiana recommended legislation ‘which will guarantee a depoliticalization of our ... universities.’ Later in the message, he noted that Louisiana State University had been ‘the storm center’ of a politicalized educational system, (footnote omitted)
To carry out this recommendation, four members of the Senate introduced a Joint Resolution amending Article XII, Section 7 of the Constitution vesting the ‘direction, control, supervision and management’ of the affairs of the University in the Board of Supervisors. Adopted by the legislature as Act 397 of 1940, this amendment to our Constitution was ratified by the People in general election. It is quite clear that the purpose of this amending, in keeping with the executive recommendation, was to remove the administration of the daily affairs of the University from both the Governor and Legislature and place them under a non-political board.
Act No. 668 of 1968 amending Section 7 fortifies the above construction. To provide for the Louisiana Coordinating Council for Higher Education, the constitutional amendment was enacted creating the Council and defining its powers. The following words were added at the beginning of the section: ‘Except as otherwise provided in the Section ... ’ This means, in context, that no governmental authority other than the Coordinating Council for Higher Education (created by Subdivision C, added to Section 7 by the 1968 amendment) can intrude into the administration of the affairs of the University. Under the terms of the amendment, even the right of the Coordinating Council to do so is severely limited.
Our interpretation that the intent of the constitution is to grant exclusive administrative power to the Board of Supervisors of Louisiana State University....

The Roy court had before it for consideration 1972 La. Acts, No. 712, which purported to enact La. R.S. 17:3121 et seq., which would have transferred control from LSU’s Board to a newly-created governing board for all of the state’s institutions of higher learning. This act was declared unconstitutional by the supreme court in Roy, 294 So.2d at 510, ruling as follows:

We do not find that Section 32 of Article III of the Constitution authorizes the enactment of a legislative act which attempts to | ^consolidate and merge the direction, supervision and management of Louisiana State University by the L.S.U. Board which derives its authority from Section 7(A) of Article XII of the Constitution. Act 397 of 1940 amended Section 7 of Article XII of the Constitution. It provided in no uncertain terms that Louisiana State University ‘shall be under the direction, control, supervision and management’ of the L.S.U. Board. The 1968 amendment to Section 7 of Article XII added at the beginning of the Section the words: ‘Except as otherwise provided in this Section.’ These words are clear and unambiguous and mean exactly what they say. The L.S.U. Board has exclusive authority over the affairs of the University except as provided in Section 7 of Article XII of the Constitution.
Therefore, there is no provision in the Constitution or otherwise, except as contained in Section 7 of Article XII, authorizing the legislature to pass a statute that conflicts with the complete autonomy of the L.S.U. Board as provided in Section 7(A) of said Article. Furthermore, Section 7 of Article XII contains no provision authorizing the legislature to merge and consolidate the L.S.U. Board with any other board or commission. Hence, Act 712 of 1972 is in direct conflict with Section 7(A) of Article XII insofar as it attempts to abolish the L.S.U. Board and to transfer all direction, control, supervision and management of the University by the L.S.U. Board to a new Board of Regents. To this extent, the act is clearly unconstitutional.

Historically, this state has given autonomy to its colleges and universities to manage their own affairs. No mention was made during discussion in the House committee meetings that LSU’s extracurricular activities and charges would be implicated in the passage of La. Const. Art. VII, § 2.1. The intent seemed to be to place legislative control only on fees charged by traditional government agencies providing services to and/or regulating citizens. Due to the high profile nature of LSU football, we believe any inclination of the legislature toward imposing the requirements of La. Const. Art. VII, § 2.1 on LSU’s extracurricular programs would have engendered some comment during the legislative hearings.

While we are unable to definitively ascertain the intent of the voters who adopted La. Const. Art. VII, § 2.1, we believe the average person, upon reading the proposed amendment, had in mind the traditional fees assessed by state governmental agencies, departments, and boards acting in their roles of regulating activities of and providing services to the citizens of Louisiana.

lisThus, we agree, as did the trial court, with the reasoning of the attorney general that the legislature has evidenced no intent to have oversight over “fees” with respect to LSU, other than those fees directly connected with LSU’s principal governmental function of providing higher education to the citizens of this state. Accordingly, we hold that the price charged by LSU for admission to football games in Tiger Stadium does not constitute a “fee” for purposes of La. Const. Art. VII, § 2.1.

CONCLUSION

For the reasons assigned herein, the judgment of the trial court is affirmed. All costs of this appeal are to be borne by appellant, Donald C. Hodge, Jr.

AFFIRMED.

DOWNING, J., dissents and assigns reasons.

hDOWNING, J.,

dissents and assigns reasons.

In the matter before us, the majority appears to rule that the ticket surcharges approved by the Louisiana State University Board of Supervisors are fees, but not the type of fee addressed in La. Const, art. VII, § 2.1, which requires any new “fee” to be approved by a two-thirds vote of the legislature.

As the trial court concluded, the word, “fee,” is not ambiguous. The majority here just does not seem to believe the voters meant what they said, or said what they meant, when they adopted La. Const, art. VII, § 2.1. And perhaps they did not. I lack the prescience to know what the voters meant. But, as the majority states, where a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further | ^interpretation may be made in search of the intent of the legislature. Tarver v. E.I. Du Pont De Nemours and Co., 93-1005, p. 3 (La.3/24/94), 634 So.2d 356, 358.

I agree with the trial court that no ambiguity exists in the meaning of the word “fee;” it is the charge paid for a service rendered by a governmental entity or for the use of a privilege under the control of a governmental entity. The application of this meaning does not lead to absurd consequences. This application will merely maintain the status quo. In contrast to that definition is the “price” paid for goods, such as books, food, housing, and the like; such tangible commodities are purchased for a “price” not a “fee.” Tuition is a fee that is paid for the educational services of the university.

To the extent that LSU football tickets have a face value of $36, representing the admission price to the stadium for viewing of a football game, the tickets are commodities purchased for price, not a “fee.” However, what is being purchased by the “donation,” required in addition to the face value of the $36 football admission ticket, is an intangible right to sit in a particular location within the stadium for the duration of the football season. In that sense, LSU controls who sits where within Tiger Stadium during football games. Such a payment is made for use of a privilege under control of LSU and is, therefore, a “fee” within the meaning of La. Const. Art. VII, § 2.1.

I am reminded of the following quotation from ‘Through the Looking Glass,’ Chapter VI, by Lewis Carroll:

“When I use a word”, Humpty Dumpty said, “it means just what I choose it to mean — neither more nor less.”
“The question is,” said Alice, “whether you can make words mean so many different things.”
“The question is,” said Humpty Dumpty, “which is to be master — that’s all.”

See M. Gardner, The Annotated Alice (New York: New American Library, ©1960), 269, cited in McGee v. Police Jury of Caddo Parish, 66 So.2d 408, 413 (La.App. 2 Cir.1953)

The plain language of La. Const, art. VII, § 2.1 may become a source of vexation for the various state boards, departments and agencies and to the legislature, but it is not ambiguous. Accordingly, the LSU Board of Supervisors cannot constitutionally impose this fee without a two-thirds vote of the legislature. Consequently, I would find that the trial court erred in failing to require LSU to meet the requirement of La. Const. Art. VII, § 2.1 with respect to the “donations” required to be paid under the LSU stadium general pricing policy for season tickets and would reverse that portion of the trial court judgment.

As appellant has not appealed the finding of validity as to the bond issuance, we are unable to review that ruling of the trial court, and the judgment as to the bond issuance has become final under La. R.S. 13:5129.

      . LSU asserts that the "donation” format was used, rather than incorporating the entire cost of season tickets into the face value of the tickets, to enable ticket holders to claim the benefit of 26 U.S.C. § 170(1), which allows eighty percent of any amount paid to an institution of higher education for the right to purchase tickets to an athletic event in the athletic stadium of the institution to be treated as a charitable donation for federal income tax purposes. (Any amount paid to purchase the ticket is treated separately).

      . LSU was given the option of terminating the facilities lease when the bonds became legally defeased or paid in full, and it was agreed the Cooperative Endeavor would remain in effect until the bonds became legally defeased or paid in full.

      . The Cooperative Endeavor also included a provision for liquidated damages to be paid by the Foundation to LSU, in the event substantial completion of the facilities was not completed before the first home game of the 2005 LSU varsity football season. The amount of liquidated damages was stated as being either revenue lost because of the lack of completion should home games be played in the stadium or the out-of-pocket costs and losses occasioned by LSU playing home games in another stadium.

      . In any action affecting the validity of governmental bonds, the provisions of La. R.S. 13:5121 through 13:5129 “supercede all other acts and statutes on the subject.” La. R.S. 13:5122. Pursuant to La. R.S. 13:5128, the appellant has twenty days from the date of the trial court judgment to have the record certified to the appellate court and to file his appellate brief; the appellee has fourteen days in which to file a reply brief; the case shall be heard no later than seven days thereafter; and the appellate court must render a decision within the seven day period following the hearing.

      . We note that Paragraph (B) is inapplicable in this case. Even though the Board of Regents and the LSU Board of Supervisors are part of the Department of Education under La. R.S. 36:651(D), the Department of Education is not a constitutionally created department. It is created by La. R.S. 36:642. The only constitutionally created departments are: the Department of State (Art. IV, § 7); the Department of Justice (Art. IV, § 8); the Department of Treasury (Art. IV, § 9); the Department of Agriculture (Art. IV, § 10); the Department of Insurance (Art. IV, § 11); the Department of Elections and Registration (Art. IV, § 12); and the Department of State Civil Service (Art. X, § 6). The remaining thirteen of the twenty executive departments allowed under La. Const. Art. IV, § 1 and La. Const. Art. XIV, § 6 are enumerated in La. R.S. 36:4 as follows, the Department of Economic Development; the Department of Culture, Recreation and Tourism; the Department of Environmental Quality; the Department of Health and Hospitals; the Department of Labor; the Department of Natural Resources; the Department of Public Safety and Corrections; the Department of Revenue; the Department of Social Services; the Department of Transportation and Development; the Department of Wildlife and Fisheries; the Department of Education; and the Department of Public Service.

      . Later changes included: “fine'' to "civil fine;'' "two-thirds” to "two-thirds vote;” and, the addition of the following clause: "imposed or assessed by the state or any board, department, or agency of the state.”

      . We limit our holding herein to the narrow circumstances presented for our review.


source: Caselaw Access Project

author: I ¿DOWNING, J.

license: Public Domain

text:
    Brendan DANIEL v. WAL-MART ASSOC., INC.
    No. 2003 CA 0441.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 31, 2003.

      Brendan Daniel, Abita Springs, Counsel for Plaintiff/Appellant In Proper Person.
    J. Jerome Burden, Baton Rouge, Counsel for Defendani/Appellee LA Department of Labor.
    Before: PETTIGREW, DOWNING and McClendon, jj.
   I ¿DOWNING, J.

This is an appeal of the denial of unemployment benefits. Brendan Daniel appeals a district court judgment upholding an Administrative Law Judge’s (ALJ) decision disqualifying him from benefits pursuant to La. R.S. 23:1601(2). The ALJ found that Daniel was terminated “with cause” from his employer, Wal-Mart, and the district court affirmed. For the following reasons, we reverse the judgment of the district court.

FACTS AND PROCEDURAL HISTORY

Brendan Daniel worked for Wal-Mart as a night-stocker. On May 27, 2001, when he was preparing to end his shift at 7:00 a.m., he was asked to retrieve a product for a customer. As he was performing this task, he encountered his supervisor, Patrick Richard, who was handling a pallet of groceries and blocking his way. A verbal altercation ensued between Richard and Daniel. Richard told Daniel to go home. The following day, Daniel contacted the store manager, Don Lingo, who told him to write an official statement. When Daniel returned to the store on June 1, 2001, to turn in the statement, Lingo told Daniel “good luck, you’re not here anymore.” Daniel assumed this meant he had been terminated. On June 12, 2001, he returned to the store and signed an exit interview form indicating that he left his employment voluntarily due to being “dissatisfied with his supervisor.”

Daniel applied for unemployment compensation benefits. Wal-Mart protested the claim with a statement that Daniel left voluntarily. An administrative hearing was conducted on August 31, 2001 and on September 7, 2001 a decision disqualifying Daniel for unemployment benefits was rendered. Daniel appealed to the Board of Review. On November 2, 2001, the Board remanded the case because the tape of the hearing was blank. A second hearing was held by ALJ, Ronald Harrison, on December 10, 2001. The ALJ ordered Daniel disqualified | ^pursuant to La. R.S. 23:1601(2). Daniel again appealed to the Board. The Board upheld the ALJ decision and Daniel appealed to the district court for judicial review. The district court affirmed the Board of Review decision.

STANDARD OF REVIEW

The standard of judicial review of decisions made by an administrative law tribunal concerning unemployment compensation benefits is governed by La. R.S. 23:1634(B). As we summarized this standard in Woods v. Cameco Industries, Inc., 01-0298, p. 7 (La.App. 1 Cir. 3/28/02), 815 So.2d 370, 375, in any proceeding under this Section, in the absence of fraud, the factual findings of the Board of Review shall be conclusive if that decision is supported by sufficient evidence not manifestly erroneous. Moreover,the jurisdiction of the appellate court shall be confined to questions of law. Thus, pursuant to La. R.S. 23:1634, our review is limited to whether the facts are supported by the evidence and whether the facts justify the action taken as a matter of law. Id.

DISCUSSION

There are two reasons to reverse this decision.

First, the ALJ inferred an intention on the part of Wal-Mart to fire Daniel for insubordination despite the fact that there was no evidence to support that accusation and there was direct evidence to the contrary. Thus, the narrow legal question here is: does La. R.S. 23:1624 (which states, “If a disqualification is alleged, or appears to exist...” (emphasis added)) authorize the ALJ to find that an employer terminated an employee for misconduct when the employer itself never asserted that the employee was fired, when there is no evidence that the employer intended to terminate the employee, and when the only evidence is that the employee thought he had been terminated when he was told to go home?

Louisiana Revised Statute 23:1629 allows the finder of fact much discretion on what is to be heard at the administrative hearing. It appears that the purpose of La. R.S. 23:1625 is to allow the notice of hearing to be enlarged to encompass issues not properly articulated in the pleadings. Probably this evolved since neither the claimant nor the employer is usually represented by counsel. Accordingly, the hearings and appeals need not be in strict conformity with the technical rules of procedure and evidence. See King v. Brown, 115 So.2d 405, 411 (La.App. 2 Cir.1959). The fundamental rules, however, must not be entirely dispensed with, but should be reasonably and substantially adhered to so that the claimant is afforded an opportunity for a fair hearing. Id. We have previously held that a “fair hearing” includes the right to notice of the charges with which one is to be confronted. Jones v. Administrator, Div. of Employment Sec., 154 So.2d 54, 55 (La.App. 1 Cir.1963).

The ALJ stated in the decision dated December 18, 2001, that the evidence in this case shows that Daniel was discharged because of a disagreement with his supervisor and because of his insubordinate behavior towards his supervisor. He determined that La. R.S. 23:1601(1) did not apply, but denied benefits pursuant to La. R.S. 23:1601(2).

Louisiana Revised Statute 23:1601(2)(a) provides, in pertinent part, that an individual shall be disqualified for benefits if the Administrator finds that he has been discharged for misconduct connected with his employment. Misconduct means mismanagement. of a position of employment by action or inaction, neglect that places in jeopardy the lives or property of others, dishonesty, wrongdoing, violation of a law, or violation of a policy or rule adopted to insure orderly work or the safety of others.

Our careful review of the record indicates that Wal-Mart has never said that Daniel was fired or was going to be fired. Wal-Mart’s response to the Notice to Base Period Employers form states:

The claimant voluntarily quit due to dissatisfaction with the job.

|sThe Unemployment Insurance Claims Request for Information was sent to the claimant stating:

Our office has received a protest from WalMart stating you quit your employment with their company.
Daniel’s notice of disqualification states: You left your employment because of a disagreement with your employer/supervisor; Your leaving was not for good cause attributable to a substantial change made to the employment by the employer.”

The notice to appear for hearing mailed to claimant dated November 30, 2001 broadened the issues to be heard by the ALJ, pursuant to the authority of La. R.S. 23:1629, to include not only the issue of whether the employee quit, but also whether he was discharged for insubordination.

The notice of the hearing before the ALJ stated as follows:

Whether the claimant left employment because he was dissatisfied with his supervisor or after a dispute with his supervisor and whether these reasons can be considered good cause attributable to a substantial change made in the job by the employer. R.S. 23:1601(1). or
Whether the claimant was discharged for insubordination and/or by Pat Richards who told him not to return after he said “goodbye-adios” and whether these reasons can be considered misconduct connected with the employment. La. R.S. 23:1601(2).

This latter allegation was never raised by Wal-Mart, the employer. The supervisor with whom claimant had a dispute specifically testified that he told claimant to go home only for claimant to cool off, and that he did not intend to fire claimant. There is no testimony from any other Wal-Mart employee. Nor is there any document stating Wal-Mart intended to fire claimant for insubordination. The ALJ’s leap to that conclusion is in direct contravention of the only evidence of Wal-Mart’s intent in the record, which is that the supervisor did not intend to terminate the claimant’s employment.

Here the ALJ improperly inferred the intent of the employer to fire the claimant for insubordination when not only was there no evidence there was suchj^an intent, but direct evidence to the contrary. Therefore, because there is no evidence that Wal-Mart intended to terminate Daniel’s employment, we must reverse the judgment based on La. R.S. 23:1601(2).

Secondly, the district court erred, as a matter of law, when it put the burden of proving that the employee was fired for misconduct on the employee and not on the employer. The matter came on for judicial review pursuant to La. R.S. 23:1601(2) only because the ALJ made a finding of fact that La. R.S. 23:1601(1) did not apply.

The district court stated in its written reasons that the ALJ gave claimant opportunity to explain whether he resigned or was discharged. The claimant was given ample opportunity to describe the incident. The district court concluded that the claimant did not satisfy the ALJ by a preponderance of the evidence that he was not discharged for good cause.

Where the employer seeks to deny benefits because of employee misconduct as defined by La. R.S. 23:1601, the burden of proof is on the employer, not -the employee. Cameco Industries, 01-0298, at p. 7, 815 So.2d at 375. The district court erred as a matter of law when it put the burden on the wrong party. Therefore, while this is an error of law, because of the disposition entered above in this case we preter-mit discussion of the consequences of this error.

DECREE

For the above reasons we reverse the judgment of the district court. The costs of this appeal are assessed against Wal-Mart Association, Inc.

REVERSED.

MCCLENDON, J., dissents.


author: |.CARTER, C.J.

text:
    Troy L. DAVIS, Jr. v. AMS TUBE CORPORATION.
    No. 2002 CA 2427.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 31, 2003.

      Thomas J. Hogan, Jr., Hammond, for Plaintiff-Appellant # 1, Troy L. Davis, Jr.
    Stephen W. Brooks, Jr., Richard J. Voelker, Shannon K. Lowry, Covington, for Defendant-Appellant #2, AMS Tube Corporation.
    Before: CARTER, C.J., PARRO, and GUIDRY, JJ.
   |.CARTER, C.J.

In this appeal, Troy L. Davis, Jr. and his previous employer, AMS Tube Corporation (AMS Tube), both challenge a decision of the Workers’ Compensation Judge (WCJ). For the following reasons, we affirm.

BACKGROUND

Mr. Davis was a plant manager for AMS Tube in Hammond, Louisiana. He was a salaried employee with no set lunch schedule. He alleges that he injured his neck, left shoulder, and left arm in the course and scope of his employment on June 2, 1998, when he fell off a stack of pipe that he had been inspecting. This incident was not witnessed; however, Mr. Davis sought medical treatment for pain in July, and underwent cervical fusion surgery on August 3,1998. The surgery provided Mr. Davis immediate relief from the pain he had been experiencing since the time of his fall at work. He returned to full-time work status on August 20, 1998, while still under the care of his treating neurosurgeon, Dr. Edward Thomas Cullom, III.

On August 26, 1998, Dr. Cullom noted that one or both of the bottom screws were backing out of the plate that had been inserted in Mr. Davis’s neck during the surgery. Dr. Cullom also noted that the graft site appeared to be collapsing, which was an indication that a second surgery might be required. On September 9, 1998, Dr. Cullom noted that x-rays revealed a | sdefinite compression of the inferior graft site, and that both screws had backed out of the plate in Mr. Davis’s neck. Although it appeared that the fusion was failing, Dr. Cullom and Mr. Davis elected to continue conservative treatment at that time by continuing the use of a rigid cervical collar and giving Mr. Davis more time to heal. Dr. Cullom scheduled Mr. Davis for followup treatment in early October.

The next day, on September 10, 1998, Mr. Davis left AMS Tube around 11:00 a.m. He alleges that he went to Wal-Mart to purchase film so that he could photograph a batch of inferior pipe at the AMS Tube plant. After making his film purchase, Mr. Davis decided to stop at his residence to pick up a sandwich he had made that morning. He quickly ate his lunch and while returning to the AMS Tube plant facility, he was violently rear-ended in a motor vehicle accident. Mr. Davis was transported by ambulance to an emergency room, but was released. On November 5, 1998, Mr. Davis underwent a second cervical fusion surgery because Dr. Cullom had determined that the first fusion had failed. Mr. Davis returned to full-time work status on January 3, 1999; however, he continued to suffer from significant neck and arm pain as well as a vocal chord trauma associated with the neck surgery. Mr. Davis received his full salary throughout this time. He was terminated from his employment with AMS Tube on March 24, 1999. The parties stipulated at trial that benefits in the amount of $1,505 per month were paid to Mr. Davis through February 2000.

After he was terminated from his job, Mr. Davis filed a disputed claim for workers’ compensation benefits in connection with his injuries from the fall off the stack of pipe at work. He amended his claim form several times, finally alleging in his fifth amended claim form that he was also entitled to | benefits in connection with the motor vehicle accident of September 10, 1998. AMS Tube denied that the first unwitnessed accident occurred, and denied that the motor vehicle accident occurred while in the course and scope of Mr. Davis’s employment. AMS Tube further alleged that Mr. Davis had forfeited his right to workers’ compensation benefits under LSA-R.S. 23:1208, because he had willfully misrepresented his prior accidents and injuries to his neck in order to receive benefits.

A trial on the merits was held on April 29, 2002. The WCJ rendered judgment on June 13, 2002, in favor of AMS Tube, finding that although Mr. Davis had sustained an injury by accident in the course and scope of his employment with AMS Tube on July 2, 1998, he was not in the course and scope of his employment with AMS Tube on September 10, 1998, when he was involved in the motor vehicle accident. The WCJ further found that there was a causal connection between Mr. Davis’s work-related injuries sustained on July 2, 1998, and the injuries he sustained in the September 10, 1998, non-work-related accident. However, the WCJ ruled that Mr. Davis forfeited his right to benefits under LSA-R.S. 23:1208, assessed Mr. Davis with a civil penalty in the amount of $1,000, and dismissed Mr. Davis’s claim with prejudice.

Both Mr. Davis and AMS Tube have appealed. Mr. Davis argues that the WCJ erroneously admitted medical records offered by AMS Tube for impeachment purposes and committed manifest error in the factual finding of fraud and in applying LSA-R.S. 23:1208, causing Mr. Davis to forfeit |Rworkers’ compensation benefits. AMS Tube argues that the WCJ manifestly erred in finding that a work-related accident occurred on July 2, 1998, and in concluding that all of Mr. Davis’s neck and shoulder injuries were causally connected to that work-related accident. AMS Tube also contends the WCJ abused her discretion in assessing only a civil penalty against Mr. Davis and failing to award restitution of the benefits it wrongly paid to Mr. Davis.

DISCUSSION

We first address the forfeiture of benefits issue because if we find that the WCJ correctly ruled that Mr. Davis committed fraud by misrepresenting his prior accidents and injuries, then the issues of whether the WCJ manifestly erred in finding that a work-related accident occurred and whether Mr. Davis’s injuries were causally related to the work-related accident are moot. See Morton v. Wal-Mart Stores, Inc., 36,398 (La.App. 2 Cir. 10/25/02), 830 So.2d 533, 538, writ denied, 02-2814 (La.2/7/03), 836 So.2d 101.

Forfeiture of benefits for misrepresentation is governed by LSA-R.S. 23:1208, which provides in part:

A. It shall he unlawful for any person, for the purpose of obtaining or defeating any benefit or payment under the provisions of this Chapter, either for himself or for any other person, to willfully make a false statement or representation.
D. In addition to the criminal penalties provided for in Subsection C of this Section, any person violating the provisions of this Section may be assessed civil penalties by the workers’ compensation judge of not less than five hundred dollars nor more than five thousand dollars, and may be ordered to make restitution. Restitution may only be ordered for benefits claimed or payments obtained through fraud and only up to the time the employer became aware of the fraudulent conduct.
|fiE. Any employee violating this Section shall, upon determination by workers’ compensation judgment, forfeit any right to compensation benefits under this Chapter. (Emphasis added.)

This statute applies to any false statement or misrepresentation made specifically for the purpose of obtaining workers’ compensation benefits. Hurst v. Railserve, Inc., 02-0929 (La.App. 1 Cir. 3/28/03), 844 So.2d 342, 345. The statute is broadly worded and encompasses any false statements or misrepresentations made to anyone, including the employer, physicians, or insurers, when made willfully or deliberately for the purpose of obtaining benefits. Hull v. Fluker Farms, 00-0757 (La.App. 1 Cir. 5/11/01), 787 So.2d 535, 539, writ denied, 01-2291 (La.11/16/01), 802 So.2d 612.

The requirements for forfeiture of benefits under LSA-R.S. 23:1208 are that there is: (1) a false statement or representation; (2) willfully made; and (3) for the purpose of obtaining or defeating any benefit or payment. Jim Walter Homes, Inc. v. Prine, 01-0116 (La.App. 1 Cir. 2/15/02), 808 So.2d 818, 824. The relationship between the false statement and the pending claim will be probative in determining whether the statement was made willfully for the purpose of obtaining benefits. Id.

The issue of whether an employee forfeited his workers’ compensation benefits is one of fact, which is not to be reversed on appeal, absent manifest error. Hull, 787 So.2d at 539. Before an appellate court may reverse the factual determinations of the WCJ, it must find from the record that a reasonable factual basis does not exist for the findings or that the findings are clearly wrong or manifestly erroneous. Where two permissible views of the evidence exist, the fact-finder’s choice between them cannot be manifestly erroneous or clearly wrong. Hull, 787 So.2d at 539—40, citing Stobart v. State, Through Department of Transportation and Development, 617 So.2d 880, 883 (La.1993). In addition, when factual findings are based on witness credibility, the appellate court must give great deference to the fact-finder’s decision to credit or discredit a witness’s testimony. Teano v. Electrical Const. Co., 02-2032 (La.App. 1 Cir. 5/9/03), 849 So.2d 714, 717.

With regard to Mr. Davis’s misrepresentations about prior medical treatment, the WCJ provided extensive written reasons for judgment making the following determinations:

[T]his court also takes into consideration the nature, extent, and duration of the prior treatment, and whether it involves the same or similar injury and part of body.
In the instant case, Mr. Davis was asked the following in his January 24, 2000 deposition:
“Q. At the time you were hired with AMS, did you have any problems with your back or neck?
A. No.
Q. Had you ever had any problems with your back or neck?
A. Yes. [I] had back surgery in 1991.
Q. And prior to working at AMS, you had no neck problems or injuries?
A. No. (Shakes head negatively).”
Additionally, medical records of Dr. Cullom dated July 28, 1998 include the following notation:
“BACK AND NECK INJURY: The patient denies a prior history of neck injuries or trouble... He has had back problems off and on in the past...”
Impeachment evidence introduced at trial indicates that Mr. Davis has had significant prior neck problems and had received treatment for neck pain as recently as two months before his July 2, 1998 work injury. Medical records of Dr. Alan Gruman at the Kirklin Internal Medicine Clinic dated June 22, 1994 indicate that Mr. Davis presented with a history of falling off a trailer on his right shoulder then onto his back. He |shad discomfort in the right neck as well as the right shoulder. On April 4, 1995, Mr. Davis was seen by Dr. Gruman complaining of recurrent headaches and neck and shoulder pain. Dr. Gruman wrote: “I saw him initially in 6/94 for his neck discomfort, but since then, he has reported to me that it has become progressive.” Again on June 27, 1995, Dr. Gruman reported “recurrent neck pain with MRI scan showing mild cervical spondylosis.” Dr. Gruman referred Mr. Davis to Dr. Richard Morawetz, a neurosurgeon at the Kirklin Clinic. Dr. Morawetz noted the following in his May 11,1995 report:
“This is a 55 year old right handed white male who fell at home approximately one year ago and since then he has been suffering from intractable neck pain. His pain has increased in frequency and severity over the last six to eight months. He went to physical therapy and didn’t improve so he went to his local doctor who referred him for a neurosurgical evaluation.”
In a March 13, 1997 report, Dr. Gruman noted the following:
“GENERAL: This is a follow-up visit for Mr. Davis who is a pleasant 56-year-old white male who comes in today for physical. It has been a while since I have seen him, around 3/95. Medical problems include the following:
Chronic neck pain with cervical spon-dylosis conservatively treated at the encouragement of Dr. Morawetz. He does some neck exercises and has some occasional pain but does fairly well with that.
INTERIM FAMILY HISTORY AND SOCIAL HISTORY: He is getting ready to move to Hammond, Louisiana.”
Certified medical records from the Medical Clinic of Tangipahoa indicate Mr. Davis was seen by Dr. Mark Tilyou on April 21, 1998, less than 3 months before his July 2, 1998 work-related injury. His chief complaint was right neck and shoulder pain for 3 weeks. He presented again on May 18, 1998 with complaints of right neck and shoulder pain.
Based on the foregoing, the court finds that all three elements of the Re-sweber test have been met. Mr. Davis was 1 ^specifically asked in his deposition whether he had prior neck problems or injuries, which he denied. This is clearly a false statement. He was also asked about prior neck problems before being hired at AMS, which he also denied. This is clearly contradicted by the fact that he had a complete physical in March of 1997, wherein he told Dr. Gru-man about his impending move to Hammond. Mr. Davis testified he moved his trailer to the Hammond area in March of 1997 after AMS hired him. Clearly, his visit to Dr. Gruman was in anticipation of his new job and Dr. Gruman’s report clearly indicated at that time Mr. Davis had been treating with him for “chronic neck pain.”
As to whether Mr. Davis’ false statements were willfully made to obtain benefits, the court notes that the prior treatment with Dr. Gruman was for neck problems, the same part of body injured in July 2, 1998 and for which he was paid benefits. The prior treatment of his neck problems was extensive, involving diagnostic studies, physical therapy, and medication.
The court also finds it inconceivable that Mr. Davis simply forgot about seeing Dr. Tilyou only 2 to 3 months before his July 2, 1998 accident. Similarly, it is also illogical that Mr. Davis would remember to disclose his prior back problems in his deposition and to his physicians, but fail to remember his prior neck problems, which occurred closer in time to his July 2, 1998 injury.
The court had the opportunity to observe Mr. Davis over several hours of testimony and finds him to be a less than credible witness. Mr. Davis continuously justified his failure to disclose prior injuries by saying that “nothing was broke”, therefore he did not feel the need to disclose such injuries. The problem with this explanation is that in his deposition and in the history given to Dr. Cullom, the questions were asked in a general sense, i.e., he was asked about prior neck “problems” or “injuries”, not whether he broke his neck. Thus, his failure to disclose his prior neck problems when asked can only be construed as a willful attempt to obtain benefits for a longstanding pre-existing problem. (Emphasis added.)

We have thoroughly reviewed the record and find that the WCJ’s account of the numerous instances where Mr. Davis misrepresented his prior neck problems to his physicians and in his deposition is accurate. The evidence outlined above clearly supports the WCJ’s finding that Mr. Davis engaged in fraudulent behavior for the purpose of obtaining workers’ |10compensation benefits. Mr. Davis’s misrepresentations clearly fall within the scope of LSA-R.S. 23:1208.'

Mr. Davis argues on appeal that the WCJ erroneously admitted his prior medical records for impeachment purposes, because the evidence was not contained in the pretrial scheduling order. We find no merit to Mr. Davis’s argument. The WCJ has great discretion in conducting trials in a manner that he or she determines to be consistent with the fair administration of justice. Reasonable questions as to the admissibility of evidence should be resolved in favor of receiving such evidence. Teano, 849 So.2d at 719. The evidence was admitted over Mr. Davis’s objection during his cross-examination, and it was used for impeachment purposes to show his prior history of neck problems that he had denied. Generally, impeachment evidence does not have to be disclosed prior to trial. See Johnson v. State, Through Division of Administration, 510 So.2d 87, 90 (La.App. 1 Cir.1987). Under the circumstances, we find no abuse of discretion on the part of the WCJ in admitting the prior medical records into evidence. Furthermore, we fail to see how Mr. Davis can be prejudiced by surprise with regard to his personal medical history contained within his medical records. We also note that some of the misrepresentations made by Mr. Davis were not contained in the impeachment evidence, but were made in his deposition testimony given in connection with his claim for benefits.

The WCJ’s finding regarding fraud was based on credibility determinations. This finding should not be disturbed on review. Teano, 849 So.2d at 722. Mr. Davis’s misrepresentations concerning his prior neck problems relate directly to his claim for benefits since he alleges that his cervical fusion surgeries stem from the work-related accidents. The record is replete with instances in which Mr. Davis denied prior neck injury and treatment, including his deposition testimony, his testimony in court, and his related history when examined by doctors. Based on the foregoing, we cannot say the WCJ erred in finding that Mr. Davis violated LSA-R.S. 23:1208, and therefore, forfeited his right to benefits.

Accordingly, we affirm the finding of fraud and pretermit discussion of the issues raised by both parties surrounding the accidents and causation. As for AMS Tube’s argument that the WCJ abused her discretion in failing to award restitution of benefits pursuant to LSA-R.S. 23:1208(D), we note that the statute does not mandate that the WCJ order restitution. The awarding of restitution lies within the discretion of the WCJ. Teano, 849 So.2d at 724. The WCJ exercised her discretion in assessing a civil penalty against Mr. Davis in lieu of awarding restitution, after specifically considering AMS Tube’s request. Because AMS Tube does not show how the WCJ abused her discretion in failing to award restitution, we find no merit in this assignment of error.

DECREE

The judgment of the WCJ is affirmed. Costs of this appeal are assessed equally to the parties.

AFFIRMED.

      . There is a discrepancy between AMS Tube’s report-of-injury form stating that the accident occurred on July 2, 1998, and Mr. Davis's allegation and testimony that the accident occurred on June 2, 1998. The WCJ found that the accident actually occurred on July 2, 1998, because that date fell on a Thursday, and it was documented in the certified medical records of Dr. Mark Tilyou, Mr. Davis's initial treating physician. Considering the record as a whole, we find no merit to AMS Tube's assertion that the WCJ manifestly erred when she concluded that the accident occurred on July 2, 1998. We also note that the actual date of the accident is not critical to the determination of whether a work-related accident occurred in this case.

      . This matter was previously heard on appeal of a summary judgment regarding the course and scope of employment issue as it related to the motor vehicle accident. See Davis v. AMS Tube Corp., 00-1311 (La.App. 1 Cir. 6/22/01), 801 So.2d 466, writ denied, 01-2122 (La.11/2/01), 800 So.2d 877.

      . The WCJ cites Resweber v. Haroil Construction Company, 94-2708 (La.9/5/95), 660 So.2d 7, 12, for the elements required to find forfeiture of benefits under LSA-R.S. 23:1208.

      . We likewise find no abuse of discretion in the WCJ’s evidentiary rulings made prior to trial. Thus, Mr. Davis' assignments of error dealing with the WCJ's rulings on the motion to compel and the motion for an in camera inspection of the impeachment evidence are without merit.

      . LSA-R.S. 23:1208(D) provides, in pertinent part: "[A]ny person violating the provisions of this Section may be assessed civil penalties ..., and may be ordered to make restitution.” (Emphasis added.) The word "shall” is mandatory and the word "may” is permissive. Teano, 849 So.2d at 724.


author: J^FITZSIMMONS, J.

text:
    Larry C. SHAFFER v. BRAND SCAFFOLD BUILDERS, INC.
    No. 2003 CA 0288.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 31, 2003.

      Byard Edwards, Jr., Hammond, Counsel for Plaintiff/Appellant Larry C. Shaffer.
    Robert T. Lorio, John J. Rabalais, Daniel Steven Wanko, Covington, Counsel for Defendant/Appellee Brand Scaffold Builders, Inc.
    Before: FOIL, FITZSIMMONS, and GAIDRY, JJ.
   J^FITZSIMMONS, J.

Plaintiff, Larry C. Shaffer, appeals the workers’ compensation judge’s grant of a motion to strike plaintiffs pre-trial statement and dismissal of his claim. We affirm.

In May -of 2001, plaintiff, Mr. Shaffer, filed a disputed claim for workers’ compensation against his employer, Brand Scaffold Builders, Inc. (Brand). Trial was set for January 7, 2002. It was continued several times. On July 26, 2002, Brand filed its pre-trial statement. The trial was again rescheduled for December 4, 2002.

On August 12, 2002, the workers’ compensation judge granted a motion to withdraw filed by Mr. Shaffer’s attorney. On August 22, 2002, Brand filed a motion for summary judgment, which was set for hearing on October 11, 2002. In support of its motion, Brand alleged that Mr. Shaffer forfeited all rights to compensation by willfully misrepresenting his injury and disabilities. See La. R.S. 23:1208 E. Acting as counsel for Mr. Shaffer, Mr. Byard Edwards filed an opposition to the motion for summary judgment on October 9th, and enrolled as counsel on October 11th. At that point in time, the record contained a pre-trial statement by Brand, listing witnesses and exhibits, and a trial date, but no pre-trial statement by Mr. Shaffer. After a hearing on the motion for summary judgment, the workers’ compensation judge noted that Brand’s assertions of willful misrepresentation or fraud under Louisiana Revised Statutes 23:1208 contained some merit. However, the material issue of Mr. Shaffer’s credibility remained. The judge referred the credibility determination on the 1208 claim to the December 4th trial, and denied the motion for summary judgment.

On November 6, 2002, Brand filed an amended pre-trial statement. With the consent of plaintiffs attorney, Brand also filed a “MOTION TO EXTEND ALL DEADLINES AND CUTOFF DATES,” which was granted by the workers’ ^compensation judge. On November 7, 2002, the order setting the new deadline of November 22, 2002, was filed in the record. On November 27, 2002, Mr. Shaffer filed a pre-trial statement. On December 2, 2002, Brand filed a motion to strike the plaintiffs pre-trial statement as untimely. In support of the untimeliness claim, Brand asserted that plaintiff, Mr. Shaffer, filed his statement on November 27th, five days after the November 22nd deadline for any pre-trial statements, including exhibit and witness lists. On the day set for the trial, December 4, 2002, Mr. Shaffer filed an opposition to the motion to strike. In the opposition, Mr. Shaffer asserted that notice of the new deadlines was sent to the wrong attorney and that plaintiffs counsel, Mr. Edwards, did not receive notice until November 26th. -

At the trial on December 4th, the remaining credibility issue of the 1208 claim was addressed. Mr. Shaffer testified and submitted a report by Dr. Jack Loupe. Defendant, Brand, offered exhibits, but no live testimony. When Mr. Shaffer’s counsel then attempted to offer more evidence, the judge limited the evidence to what had already been “utilized” during the trial. Subsequently, however, Mr. Shaffer’s counsel was allowed to relate to the judge the gist of plaintiffs expert’s medical testimony concerning the effect of oxycontin on the memory. The workers’ compensation judge then took the 1208 claim under advisement.

The untimely notice claim was not discussed during the trial. Both counsel filed post-trial memoranda, but neither argued the notice issue.

In his written reasons for judgment, the judge made no mention of plaintiffs attorney’s claim that notice of the new deadline was sent to the wrong attorney, or that plaintiff and his attorney were unaware of the new deadline until November 26th. The judge did specifically find that plaintiffs pre-trial statement was not timely filed. The judge next noted that he observed Mr. Shaffer during his | testimony and found him not credible. By judgment dated December 13th, the workers’ compensation judge granted Brand’s motion to strike and found in favor of Brand on the 1208 claim.' The judgment held that Mr. Shaffer violated Louisiana Revised Statutes 23:1208 by making false statements concerning his injuries and thereby forfeited any compensation benefits..

On appeal, Mr. Shaffer asserts that the trial court erred in striking plaintiffs pre-trial statement and ruling against Mr. Shaffer without hearing all of the evidence. Mr. Shaffer asks this court to remand the matter for a new trial. In his brief to this court, Mr. Shaffer’s counsel argues that the workers’ compensation judge’s secretary sent the pre-trial order with the new cutoff dates to the wrong attorney. As support for that allegation counsel cites to an affidavit from his secretary. The affidavit, however, is not in the record.

To insure an orderly disposition of cases, a workers’ compensation judge is given discretion to determine whether to allow witnesses or exhibits not previously listed in a pre-trial statement or order. Absent an abuse of discretion, the decision of the trier of fact will be upheld. Wright v. Wendy’s International, Inc., 01-2758, p. 4 (La.App. 1 Cir. 12/20/02), 836 So.2d 325, 327; Kennedy v. Johnny F. Smith Trucking, 94-0618, p. 5 (La.App. 1 Cir. 3/3/95), 652 So.2d 526, 529. Furthermore, it is incumbent upon counsel, who contends that a witness’s testimony or evidence was improperly excluded, to make a proffer. If he fails to do so, he cannot contend such exclusion was error. Wright, 01-2758 at p. 4, 836 So.2d at 327; Kennedy, 94-0618 at p. 6, 652 So.2d at 530. Appellate review of workers’ compensation cases is governed by the manifest error-clearly wrong standard. Freeman v. Poulan/Weed Eater, 93-1530, p. 4 (La.1/14/94), 630 So.2d 733, 737.

From Mr. Shaffer’s argument in his brief to this court, it appears that he did not file a pre-trial statement before the original cutoff date, and that the requested Iscutoff extension was filed after the original date had passed. However, the original cutoff date cannot be confirmed in the record. It is undisputed that Mr. Shaffer knew the trial was set for December 4, 2002, less than a month from the date the motion for an extension was filed. Additionally, the filing of the pre-trial statement on November 27th provided Brand with only a week’s notice of the witnesses that may be used at the trial. As to the exhibits to be used, the plaintiff stated that he was “seeking any and all exhibits, payroll stubs, payroll records and x-rays.” And yet, only a week from trial, plaintiff did not ask for a trial date extension. Although Mr. Shaffer also did not file the motion for an extension of the original pretrial statement cutoff date, we note that the extension afforded him a second opportunity to file a pre-trial statement. We further note from the record that both parties presented evidence at the hearing on the motion for summary judgment. After the summary judgment hearing, the judge found that the only remaining issue on the 1208 claim was Mr. Shaffer’s credibility. Notwithstanding these somewhat exacerbating facts, plaintiffs claim on appeal may have still elicited some type of relief if it had been supported by evidence, documentary or testimonial. The record on appeal, however, contains no specific evidence on the untimely notice issue. It is also devoid of a proffer for review on timeliness or the 1208 claim.

By failing to “make a record” through argument at trial, to submit any record evidence on the untimely notice issue, or to proffer into the record the evidence he believed was crucial to his claims, Mr. Shaffer left this court with no articula-tive basis for overturning the judgment and cannot now complain of the exclusion. Wright, 01-2758 at p. 4, 836 So.2d at 327-28; Kennedy, 94-0618 at p. 6, 652 So.2d at 530. Mere allegations and conjecture are not sufficient for vacation of a judgment and remand for a second trial on the same issues. Thus, we cannot say that the workers’ compensation judge abused his discretion in granting the motion | uto strike. Based on the evidence that is in the record, we also cannot say that the judge was clearly wrong in finding that Mr. Shaffer violated Louisiana Revised Statutes 23:1208. See Freeman, 93-1530 at p. 4, 630 So.2d at 737; Stobart v. State, Department of Transportation and Development, 617 So.2d 880, 882 (La.1993); Wright, 01-2758 at p. 4, 836 So.2d at 327; Kennedy, 94-0618 at p. 5, 652 So.2d at 529.

For these reasons, we affirm the judgment. The costs of the appeal are assessed to plaintiff, Mr. Shaffer.

AFFIRMED.


author: | «MARION F. EDWARDS, Judge.

text:
    OAKWOOD CORPORATE, LLC, et al. v. PRO-COMP, INC. et al.
    No. 03-CA-979.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 27, 2004.
    Order Granting Rehearing in Part and Rehearing Denied in Part March 29, 2004.

      Kirk L. Landry, Keogh, Cox & Wilson, Baton Rouge, LA, for Appellants.
    Sidney W. Degan, III, John C. Enochs Degan, Blanchard & Nash, New Orleans, LA, for Appellees.
    Panel composed of Judges JAMES L. CANNELLA, MARION F. EDWARDS and WALTER J. ROTHSCHILD.
   | «MARION F. EDWARDS, Judge.

Plaintiffs, Oakwood Corporate, L.L.C., and Transportation Insurance Company appeal from a summary judgment granted in favor of defendants, Hicks and Associates, Inc. and Pro-Comp, Inc on the issue of indemnity under a lease agreement. For the following reasons, the judgment of the trial court which grants the summary judgment of Pro-Comp and Hicks, and which denies the summary judgment of Oakwood, is reversed and we render judgment as detailed below.

FACTS AND PROCEDURAL HISTORY

Plaintiff/Appellant, Oakwood Corporate, L.L.C., (“Oakwood”), is the owner and operator of an office building known as the “Oakwood Corporate Center,” which is located in Jefferson Parish. In 1990, Hicks and Associates, Inc., (“Hicks”), entered into a lease with Oakwood to become a tenant in the building, and in February of 1996, the Hicks lease was amended to add Pro-Comp, Inc. as an additional lessee.

Hicks and Pro-Comp had a “point of use” water heater installed on the leased premises that leaked and caused damage to various parts of the Oakwood Corporate Center. As a result of the damage, Transportation Insurance Company, Oakwood Corporate, L.L.C.’s insurer, paid over $75,000.00 under the | «terms of its policy. Additionally, Oakwood paid a $5,000.00 deductible under the Transportation Insurance policy.

Oakwood filed suit against Hicks and Pro-Comp, alleging that pursuant to their lease agreement, Hicks and Pro-Comp had agreed to indemnify Oakwood for any losses, including damage to the property, resulting from any accident or other occurrence on the leased portion of the premises.

Oakwood and its insurer later filed a Motion for Summary Judgment on the issue of whether Pro-Comp owed it a defense and indemnity, pursuant to their lease agreement. Pro-Comp and Hicks filed a cross-Motion for Summary Judgment on this same issue, asserting that it had no liability to either Oakwood or its insurer. Following the hearing on both Motions for Summary Judgment, the trial court granted Pro-Comp and Hick’s Motion for Summary Judgment, and denied Oakwood’s Motion for Summary Judgment. Oakwood and its insurer timely filed the present appeal.

LAW AND ANALYSIS

On appeal, Oakwood asserts that the trial court erred in finding that the indemnity and hold harmless provisions of the lease agreement resulted in confusion of a debt pursuant to La. C.C. art 1903, and that, accordingly, Oakwood could not recover from Pro-Comp.

As this Court noted in Rossi v. Bailey, When appellate review is not premised on any factual findings made by the trial court but is based upon an independent review and examination of the contract on its face, the manifest error rule is inapplicable. In such cases, appellate review of Lquestions of law is simply whether the trial court was legally correct or legally incorrect.

The applicable provisions of the lease between Oakwood and Pro-Comp provide, in relevant part:

11. If during'the term of the lease, the leased premises or the Building be damaged by fire or other casualty to such an extent that same can be repaired within a period of one hundred twenty (120) days, Lessor shall be obligated to repair the damage.
16. Lessee assumes responsibility for the condition of the leased premises and Lessee agrees to indemnify Lessor against and hold Lessor harmless from any and all liability for injury to persons or damage to property or other losses Caused by or resulting from any accident or other occurrence in, on or about the leased premises ... If any such damage shall be caused by the acts or neglect of the Lessee, Lessor may repair such damage and Lessee shall thereupon reimburse Lessor for the entire cost of such damage.

In this case, the trial court gave the following reasoning in determining that Pro-Comp did not owe a duty to indemnify Oakwood:

THE COURT:

It looks to me like, under the wording, by the use of the word “liability for injury to persons or damage to property” the liability would be from Oakwood to Oakwood.
If you have a debt, and the holder of a note becomes the owner ... the person who owes the money and the person who is owed the money become the same, it’s called confusion under the laws of ... the Commercial Code and Negotiable Instruments.
In this case, it sounds like the wording of this makes for confusion, because the person who is liable is also the person who has to pay it. So there is confusion in that Oakwood is the one to whom the liability is owed, and can you be liable to yourself. And the insurance company only steps in to take the same rights that Oak-wood has. So you can’t be liable to yourself.
It is a very strict reading, but the word “liability” in there has a definite legal context. If it was strictly “loss,” “any loss,” I think you’d be home free.
Now, referring back to Paragraph 11, to say they owe a duty to everyone in the building these rights, I don’t know whether that makes them liable to it. I think that’s more of a strained construction. I think this is a very narrow construction ... But I think you can’t be liable to yourself, and I think that’s what the wording of Paragraph 16 says.

| As noted by the Louisiana Supreme Court in Campbell v. Melton:

In interpreting contracts, we are guided by the general rules contained in articles 2045-2057 of the Louisiana Civil Code. The interpretation of a contract is the determination of the common intent of the parties with courts giving the contractual words their generally prevailing meaning unless the words have acquired a technical meaning. La. Civ. Code arts.2045, 2047; see e.g., Louisiana Ins. Guar. Ass’n v. Interstate Fire & Casualty Co., 93-0911 (La.1994), 630 So.2d 759, 763. When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the intent of the parties. La. Civ.Code art.2046.

After a de novo review of the lease between the parties, we disagree with the trial court’s interpretation. We find that the language of the lease stating that lessees, Hicks and Pro-Comp, agree to indemnify Oakwood for “damage to property” is clear, and contemplates events such as those forming the basis of this suit. Accordingly, we reverse the judgment of the trial court which grants the summary judgment of Pro-Comp and Hicks, and which denies the summary judgment of Oakwood, and render the following awards: $78,975.56 to Transportation Insurance Company, representing the amount paid under its policy to Oakwood as a result of property damage or other losses resulting from the water heater leak, and $5,000.00 to Oakwood Corporate, L.L.C, representing the deductible it paid under the Transportation Policy. Both of these amounts are uncontested by the parties. We further award contractual attorney’s fees to Oakwood in the amount of $20,993.89.

For the foregoing reasons, the judgment of the trial court is reversed, and we render judgment as detailed above.

REVERSED; JUDGMENT RENDERED.

ORDER

We hereby grant the rehearing application in this matter of plaintiffs, Oakwood and Transportation Insurance Company, for the limited purpose of clarifying our award of attorney’s fees and to add interest and court costs to our initial judgment.

      . The record does not reflect that defendants filed a Cross Motion For Summary Judgment, however, defendants did file a brief in the district court styled, in part, "Memorandum In Support Of Cross Motion For Summary Judgment.”

      . 99-1164 (La.App. 5 Cir. 4/25/00), 759 So.2d 282; writ denied, 2000-1932 (La.9/29/00), 770 So.2d 353

      . 2001-2578 (La.5/14/02), 817 So.2d 69.