author: CHARLES R. JONES, Judge.

text:
    PONTCHARTRAIN MATERIALS CORPORATION v. The PLAQUEMINES PARISH GOVERNMENT, Geessler G. Saul, Sales Tax Supervisor of the Plaquemines Parish Government and Revenue Recovery Group, Inc.
    No. 2003-CA-1444.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 31, 2004.

      Wayne G. Zeringue, Jr., Jones, Walker, Waechter, Poitevent, Carrere & Denegre, New Orleans, LA, for Plaintiff/Appellee.
    David A. Woolridge, Jr., Roedel, Parsons, Koch, Blache, Balhoff & McCoIlister, Baton Rouge, LA, for Defendant/Appellee.
    Johnette L. Martin, Assistant Parish Attorney, Plaquemines Parish Government, Belle Chasse, LA, for Defendant/Appellant.

      (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge CHARLES R. JONES, and Judge Pro Tempore MOON LANDRIEU).
   CHARLES R. JONES, Judge.

This appeal arises out of an action by Pontchartrain Materials Corporation (hereinafter “Pontchartrain”) for a refund of sales and use taxes paid to the Plaque-mines Parish Government (hereinafter “PPG”) for freight charges and lease payments. The appellant, PPG, now seeks suspensive appeal of the district court judgment denying its motion for new trial in favor of the appellee, Pontchartrain. Alternatively, Pontchartrain cross-appeals the motion for partial summary judgment in favor of PPG denying its claim for damages and attorney’s fees under 42 U.S.C. § 1983 and § 1988.

Procedural History

Pontchartrain initiated a suit against PPG, Geesler G. Saul, and Revenue Recovery Group, Inc. (hereinafter “RRG”) for the return of sales and use taxes paid under protest. Pontchartrain also claimed damages and attorney’s fees pursuant to 42 U.S.C. § 1983 and § 1988 on the grounds that it was deprived of its federally protected property rights. Subsequently, PPG filed a motion for partial summary judgment and/or motion to strike seeking dismissal of Pontchartrain’s claims for damages and attorney’s fees. In response, Pontchartrain moved for summary judgment on the issue of recovery of the taxes it paid under protest, as well as on its claims for damages and attorney’s fees.

The district court granted Pontchartrain’s Motion for Summary Judgment, and ordered PPG to return all taxes, interest, and penalties paid under protest. The court further granted in part PPG’s Motion for Summary Judgment, dismissing Pontchartrain’s claims for damages and attorney’s fees, and rendering “moot” PPG’s Motion to Strike.

Subsequently, PPG filed a Motion for New Trial, which was denied by the district court. PPG then filed a Motion for Appeal, and Pontchartrain responded with a cross-appeal of the partial summary judgment in favor of PPG. The judgment of the district court denying PPG’s Motion for New Trial and the partial summary judgment in favor of PPG are the subjects of the matter now before this Court.

Facts

Pontchartrain is a Louisiana Corporation, domiciled in Orleans Parish at 3819 France Road, New Orleans, in what is referred to as Slip 4 on the Industrial Canal. The corporation is engaged in the business of selling aggregate materials such as limestone and crushed concrete, which it stores in its Orleans Parish facility. In transacting the sale of aggregate materials, Pontchartrain asserts that customers may transport the materials themselves, or they may have the materials delivered by Pontchartrain. While Pontchartrain does charge for transportation and delivery through a “freight charge” that is separately stated on the invoice, the sales price remains the same whether the customer chooses to transport the materials or have them delivered.

In addition, Pontchartrain also employs trucks and barges to aid in the delivery of aggregate materials. The barges, some of which are leased, are primarily used in the transportation of aggregate materials from Paducah, Kentucky, to Pontchartrain’s facilities in Orleans Parish. However, they are infrequently used in Plaquemines Parish.

Pursuant to a contract for Audit/Examination Services dated November 14, 1995, RRG was retained by PPG, St. Charles Parish, St. Helena Parish, and Tangipahoa Parish, as an independent contractor. RRG performed an audit of Pontehartrain to determine whether there were any unpaid taxes for the period of January 1, 1998 through December 31, 1999. On December 18, 2001, after several unsuccessful requests for audit materials by RRG, Pontehartrain was presented with a tax assessment in the amount of $50,996.83 for delinquent sales/use taxes, penalties, and interest resulting from the freight charges and leasing of barges used in their deliveries. Pontehartrain subsequently paid PPG the full amount of the assessment under protest.

Discussion

La. C.C.P. art. 1972(1) provides that a new trial shall be granted, upon contradictory motion of any party, when the verdict or judgment appears clearly contrary to the law and evidence. The applicable standard of review in ruling on a motion for new trial is whether the trial court abused its discretion. Martin v. Heritage Manor South Nursing Home, 00-1023 (La.4/3/01), 784 So.2d 627, 630.

In the present case, PPG argues that its Motion for New Trial should have been granted on the grounds that the judgment of the district court granting summary judgment in favor of Pontchartrain, is contrary to the law and the evidence. In its first assignment of error, PPG argues that the district court erred in finding that Pontehartrain could deduct delivery charges from the sales price. We find that this argument is without merit.

Pursuant to La. R.S. 47:301(13)(a), “sales price” is defined as:

The total amount for which tangible personal property is sold, less the market value of any article traded in including any services, except services for financing, that are a part of the sale valued in money, whether paid in money or otherwise, and includes the cost of materials used, labor or service costs ...

In Plaquemines Parish Ordinance No. 98-117 § 14-51, PPG imposes a tax on the sale at retail of tangible personal property at the rate of 1% of the sales price of each item sold in Plaquemines Parish. § 14-41 of the ordinance further defines “sales price” in language that is identical to that of La. R.S. 47:301(13)(a). According to Sales Tax Dist. No. 1 of LaFourche Parish v. Express Boat Co., 500 So.2d 364, 367 (La.1987), when an ordinance is essentially copied from the Louisiana State Sales and Use Tax Statute, “those ordinances are deemed to have incorporated the interpretations of the statutes on which they are based.” Therefore, any prior interpretation of the state sales and use tax statute will be deemed to be an interpretation of PPG’s local ordinance.

PPG contends that when an otherwise non-taxable service is incidental to the sale of tangible personal property, that service is included in the sales tax base, and is therefore, subject to sales tax. To support this argument, PPG relies on Monsanto Co. v. St. Charles Parish School Bd., 94-2145 (La.2/20/95), 650 So.2d 753, wherein the court determined whether the process of converting wet C02 to dry C02 was a taxable service as defined by the state sales and use tax statutes. The court concluded that since the parties contracted for dry C02, the process that converted wet C02 to dry C02 was incidental to .Monsanto’s purchase of the product. Monsanto, 650 So.2d at 757.

In agreement with the district court, we also find that PPG’s reliance on Monsanto is misplaced. In Monsanto, the conversion process was necessary in order to deliver the final product of dry C02. However, in the case at bar, Pontehartrain charges the same for aggregate materials regardless of how the materials are transported after their sale. It is axiomatic that the transportation charges at issue in the present case are not a necessary part of the sale, and thus, are not akin to the charges for the conversion process in Monsanto. Therefore, the freight charges would not form a part of the sales tax base for the reasons set forth in Monsanto.

PPG further argues that the district court incorrectly interpreted the holding of Pensacola Const. Co. v. McNamara, 558 So.2d 231 (La.1990), in determining that Pontchartrain was not subject to sales taxes. In Pensacola, stone was sold in Kentucky f.o.b. point of origin, and transportation of the stone to Louisiana was rendered by carriers whose services were arranged by the Louisiana buyer. The Louisiana Supreme Court held that separately stated transportation charges were not a taxable part of the “cost price.” In reaching its decision, the court particularly looked to the language of La. R.S. 47:301(3)(a) defining “cost price” as:

The actual cost of the articles of tangible personal property without any deductions there from on account of the cost of materials used, labor, or service cost, except those service costs for installing the articles of tangible personal property if such cost is separately billed to the customer at the time of installation, transportation charges, or any other expenses whatsoever, or the reasonable market value of the tangible personal property at the time it becomes susceptible to the use tax, whichever is less.

In contrasting the language of La. R.S. 47:301(3) with the definition of “sales price”, the court concluded that an assessment of use tax was unconstitutional since there was no inclusion of transportation charges in the calculation of “sales price.”

PPG further contends that because Pensacola addressed an interstate transaction, it is inapplicable to the present case. Although PPG argues that Pensacola addresses the constitutionality of a tax on freight charges only insofar as it applies to interstate transactions, the Louisiana Supreme Court discussed the constitutionality of a use tax, and not sales tax. The plain language used to define sales price does not provide for the inclusion of transportation and freight charges as part of its taxable base. La. R.S. 47:301(13). Therefore, this Court finds that the district court did not err in concluding that freight charges were not a part of the “sales price” for purposes of imposing a tax.

In its second assignment of error, PPG maintains that the district court erred in concluding that PPG was bound by the letter ruling or opinion of the Department of Revenue. However, this assertion is incorrect. In Pensacola, the court clearly stated that it found the imposition of a use tax on separately stated freight charges to be unenforceable because there was no parallel assessment of a sales tax. Subsequent to this case, the Revenue Department issued several rulings stating that it interpreted Pensacola to mean that separately stated charges cannot be taxed as either part of the “sales price” or the “cost price” when the transportation of goods after the sale is designated by the buyer. Louisiana Tax Topics, Vol. 11, No. 3. Although PPG argues to the contrary, the Department of Revenue’s interpretation of La. R.S. 47:301 is in fact enunciated by the holding in Pensacola.

In the case at bar, the district court’s Reasons for Judgment state:

PPG further argues that this Court is not bound by the opinion and statements of the Dept, of Revenue. It is up to the courts, not the Dept, of Revenue, to determine if a certain regulation or position of the state or local jurisdiction is a correct interpretation of the law. See South Central Bell Telephone Co. [v. Barthelemy], 643 So.2d 1240 (La.1994).
* * *
Nevertheless, after considering all of the above, this Court finds that the ruling in Pensacola is broad enough to control.
And since the Pensacola ruling, this Court is convinced that the public policy and actual practice of the La. Dept, of Revenue is entitled to “substantial” and “decisive weight.”

While the district court may have found the rulings of the Department of Revenue to be persuasive, the record indicates that it viewed the decision rendered in Pensacola as being “broad enough to control.” Thus, the Department of Revenue rulings were not given the effect of law in the judgment rendered by the district court.

In its third assignment of error, PPG argues that the district court erred in finding that the rentals paid on leasing equipment engaged in business operations within Plaquemines Parish are not subject to its taxing jurisdiction. PPG contends that the leased or rented barges used by Pontchartrain should be subject to tax in accordance with Ordinance No.98-117, § 14-51(3). The ordinance imposes taxes on the lease or rental of tangible personal property at a rate of 1% of the rental proceeds and is virtually identical to the language of La. R.S. 47:302(B)(1). Accordingly, any interpretation of La. 47:302(B)(1) is incorporated into the Plaquemine Parish Ordinance on lease tax. See Sales Tax Dist. No. 1 of LaFourche Parish v. Express Boat Co., supra.

In Lafayette Parish School Bd. v. Market Leasing Co., Inc., 440 So.2d 81 (La.1983), the parish brought an action against the lessor to collect taxes allegedly due on the lease of vehicles. Although the physical presence of the vehicles in the parish was a consideration of the court, it primarily focused its analysis on the domicile of the lessee in determining whether a lease tax could be assessed. The court stated:

To avoid multiple taxation, it is necessary to identify one situs for the act of leasing. The “act of leasing” takes place where the vehicle is kept; that is, where the lessee can be located if lease payments are missed or if the leased property is damaged. The parish declared by the lessee as his domicile, residence, or business address, the place where he can be found, is entitled to receive tax on the proceeds from the lease.

Market Leasing, 440 So.2d at 86.

PPG contends that Market Leasing is inapplicable to the present case because the court applied its analysis to a lessor, and not a lessee. This Court finds no merit in this argument. While Market Leasing addressed a lessor, the court stated that, as lessor, Market Leasing was the proper party to bear the obligation of collecting a tax on vehicles leased within the parish. Id. at 86. However, the role of the lessor, as the collector of taxes, should not be confused with that of the lessee, who is actually the taxpayer. Since the lessee in Market Leasing was domiciled outside of Lafayette Parish, the Supreme Court ultimately determined that the parish was not entitled to impose a tax on the lease payments. Id. In the present case, the facts clearly establish that Pontchartrain is a lessee who is domiciled in Orleans Parish. Therefore, the right to collect lease taxes remains with the taxing authority of Orleans Parish.

PPG further argues that the taxes assessed to Pontchartrain should be permitted since they are equitably apportioned in accordance with the time the barges remained in each parish. While the barges used in Pontchartrain are arguably not as mobile as the vehicles discussed in Market Leasing, the Louisiana Supreme Court resolved the potential for multiple taxation by designating the domicile of the lessee as the proper place to receive a tax on the proceeds of a lease. Market Leasing establishes that the proper site to collect a lease tax from Pontchartrain is Orleans Parish. Thus, the mere fact that PPG deems its tax assessment to be equitable is irrelevant.

In its fourth assignment of error, PPG contends that the district court erred in granting Pontchartrain’s Motion for Summary Judgment and denying PPG’s Motion for New Trial. However, for the reasons herein assigned, we find that this assignment of error is without merit.

Conversely, Pontchartrain argues on cross-appeal that because of PPG’s arbitrary and deliberate exaction of taxes, PPG deprived Pontchartrain of its property rights and violated the due process protections of the Fourteenth Amendment to the United States Constitution. In its only assignment of error, Pontchartrain contends that the district court erred in dismissing its claims for damages and attorney’s fees under 42 U.S.C. § 1983 and § 1988.

In pertinent part, 42 U.S.C. § 1983 provides:

Every person, who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory of the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or any other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action of law, suit or equity, or other proper proceeding for redress.

42 U.S.C. § 1988 further provides that the prevailing party in an action for deprivation of rights may receive a discretionary award of attorney’s fees as part of the costs.

In McKesson Corp. v. Division of Alcoholic Beverages and Tobacco, Dept. of Business Regulation of Fla., 496 U.S. 18, 110 S.Ct. 2238, 110 L.Ed.2d 17 (1990), the United States Supreme Court held that if a state penalizes taxpayers for failure to remit their taxes in a timely fashion, thus requiring them to pay first and obtain review later, the due process clause requires that the state afford a meaningful post-payment remedy for taxes paid. In McKesson, the state of Florida failed to provide a refund or any other form of post-payment relief to taxpayers who were wrongfully assessed excise tax through a scheme that was later declared unconstitutional. Id. The Supreme Court stated, “[I]n the future, States may avail themselves of a variety of procedural protections ... such as providing by statute that refunds will be available to only those taxpayers paying under protest ... ”. Id. at 50, 110 S.Ct. at 2257.

In the instant case, PPG Ordinance No. 98-117, § 14-171 provides that:

A right of a action is hereby created to afford a remedy at law for any dealer aggrieved by the provisions of this article; in case any such dealer resisting the payment of any amount found due .... such dealer shall pay the amount found due by the collector and give the collector notice ... of his intention to file suit for the recovery of same ... If the dealer prevails, the collector shall refund the amount to the claimant, with interest at the rate provided in R.S. 33:2718.

The fact that Pontchartrain was allowed to make a payment of taxes under protest and receive a refund of taxes paid distinguishes it from McKesson, wherein no resolution was afforded to the taxpayer. In accordance with the principles of due process, PPG’s post-deprivation procedure provides taxpayers with a clear remedy by which they may refute the deprivation of tax money. See McKesson, 496 U.S. at 51, 110 S.Ct. at 2258. Therefore, PPG was not in violation of Pontchartrain’s due process rights, as it provided sufficient remedy pursuant to ordinance No. 98-117, § 14-171.

DECREE

Thus, for the reasons stated herein, we affirm the judgment of the district court denying the Plaquemines Parish Government’s Motion for New Trial, and granting its Motion for Partial Summary Judgment.

AFFIRMED.

      . A use tax is calculated upon the “cost price” of tangible personal property which is not sold within the state, but rather used, consumed, distributed, or stored in Louisiana, La. R.S. 47:302(A)(2).


source: Caselaw Access Project

author: TERRI F. LOVE, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Michael BOWENS.
    No. 2003-KA-1408.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 31, 2004.

      Eddie J. Jordan, Jr., District Attorney, Claire Adriana White, Assistant District Attorney, New Orleans, LA, for Plaintiff/Appellee.
    Bruce W. Harris, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge TERRI F. LOVE, Judge EDWIN A. LOMBARD).
   TERRI F. LOVE, Judge.

Defendant was convicted of indecent behavior with a juvenile, and sentenced to three years at hard labor. The sentence was suspended and the trial court placed the defendant on five years active probation with the special condition that he serve fifty consecutive weekends in the Orleans Parish Prison. The defendant was also ordered to register himself as a sex offender in accordance with La. R.S. 15:542. On appeal the appellant alleges the trial court erred by sustaining the State’s objection after defense counsel asked the victim whether she had retained a civil attorney. For reasons assigned below, we reverse the defendant’s conviction and sentence.

STATEMENT OF CASE

On September 9, 1998, the State filed a bill of information charging Michael Bow-ens with molestation of a juvenile. The defendant pled not guilty at his arraignment on September 23, 1998. A preliminary hearing was held on November 18, 1998, and the trial court found probable cause. The case was set for trial on November 30, 1998, and on that date the State entered a nolle prosequi.

On January 6, 1999, the State re-instituted the charge and the defendant pled not guilty at his arraignment on February 5, 1999. The case proceeded to trial on March 11, 1999, and the jury found the defendant guilty of indecent behavior with a juvenile. On June 24, the trial court denied defendant’s motion for new trial and motion of post verdict judgment of acquittal. Mr. Bowens waived all delays. The court sentenced the defendant to three years at hard labor and suspended the sentence. The court placed the defendant on five years active probation with the special condition that he serve fifty consecutive weekends in the Orleans Parish Prison. The defendant was also ordered to register himself as a sex offender in accordance with La. R.S. 15:542. Subsequently, the defendant lodged this appeal.

STATEMENT OF FACT

The victim, U.M., testified that on December 13, 1997, she was employed at Wendy’s restaurant located at 1515 Poy-dras St. as a crew worker. She was sixteen years old at the time. On the day in question she arrived at work at approximately 12:30 p.m. and prior to her clocking in, the manager, Michael Bowens, made a crude gesture towards her by licking his lips. Later during the day while U.M. was on a break she was talking about a book she was reading for school entitled “Make You Want to Holler,” by Nathaniel McCauly, and Mr. Bowens stated to her that “He would make her want to holler.” When U.M. heard the remark she stated to Mr. Bowens, “What did you say,” and Mr. Bowens did not respond.

Later in the day, while the restaurant was closing, U.M. was washing trays, and Mr. Bowens came up behind her and caressed her stomach. U.M. told him to “get the F off of me” and told him to get back in his office. She also made a derogatory comment about the defendant’s penis, and Mr. Bowens responded in kind. Mr. Bow-ens also told U.M. that rather than taking her to her home after work, he would be taking her to his place. U.M. did not respond to these comments.

Later, U.M. related what Mr. Bowens had said about not taking her home to another co-worker named Kenneth, who told her that Mr. Bowens was just acting silly and that he did not mean anything by it.

After the restaurant had closed, Mr. Bowens left to take another coworker, Nicole, home. U.M. remained in the restaurant alone. She telephoned a pair of friends and related what had happened that day and how uneasy she felt about getting a ride home from Mr. Bowens. One friend, Casey, told U.M. that if she wasn’t home by 9:00 or 9:30 he would call the police and her father.

When Mr. Bowens returned, U.M. was still on the telephone, and Mr. Bowens went into the office and then turned off all the lights in the restaurant. Approximately ten to fifteen minutes later he came out and asked U.M. if she was ready. She ended her conversation shortly thereafter and then went into the office to replace the phone on the charger. When U.M.’s back was turned, Mr. Bowens came from behind the desk and began to caress her stomach. U.M. pushed him off of her, and the two began to struggle until the telephone rang. U.M. stated she was able to get away from Mr. Bowens and went to get her coat and things.

After Mr. Bowens hung up the telephone, he got behind U.M. and pushed her into the wall. Mr. Bowens pulled U.M.’s shirt out of her pants, reached his hand under her shirt and caressed her breast. U.M. pushed Mr. Bowens off of her, but he tried to kiss her, and she pushed him off her again. Then Mr. Bowens picked her up and took her into the office. Once inside, he put her on top of the desk. U.M.’s legs were open, and Mr. Bowens had himself between them. He tried to kiss her on the lips and the neck and then pressed his penis into her vaginal area. She pushed him off of her again, and they struggled. She asked him if she could leave, and finally he stepped aside from the doorway and allowed her to go.

Mr. Bowens told U.M. that he was just playing, that he had heard she was easy, and that she had proved him wrong. He also said that he was teaching her a lesson. The two rode the elevator up to his car. While he was driving her home, he asked her if she was going to quit and whether she was going to tell her parents what had happened. When he dropped her off at her house, her father was waiting.

U.M. explained that she did not inform her father what had happened for fear that he would go after Mr. Bowens and do something irrational. She likewise explained that she did not tell her mother for fear that she would try to kill Mr. Bowens. On the following Monday, U.M. told her teacher what had happened. The principal then informed Officer Olivia Fontenot, the school resource officer, who performed the investigation.

The State called Armand Chauvin, who was employed as a security officer at 1515 Poydras Street. Shortly after the incident, he was asked to complete a review of the surveillance video tape for the day of the incident. He testified that Mr. Bow-ens can be seen leaving the Wendy’s at 8:04 p.m. with a woman and locking the door. The tape reflects that another woman was still located inside the store at that time. The tape showed that he returned to the restaurant at 8:41 p.m. and that upon returning the lights inside the restaurant went out. The tape showed that he left the restaurant at 8:57 p.m. with another woman.

Officer Olivia Fontenot testified that she was employed as a School Resource Officer with the New Orleans Police Department in December of 1997. She conducted the investigation of U.M.’s molestation and was responsible for obtaining a warrant for Michael Bowens’ arrest.

The defense called Corey Lewis, a co-manager for Wendy’s. He stated that he knew Michael Bowens from working with him. He stated Mr. Bowens had a reputation for being truthful. Pamela Hall testified that she has worked as a crew member for Wendy’s for sixteen years. She stated that she has known Michael Bowens for sixteen years and that for the time she has worked with him he did not assist coworkers with personal or occupational concerns. Rochelle Bowens testified that she has known her husband for eight years and they have been married for six years. She stated that her husband has a good reputation in the community.

Michael Bowens testified that he was currently employed as a sales technician with a local electrical company. He related that on the day in question, U.M.’s mother called and asked if he could drive U.M. home and he told her that he could. He explained that he and his wife’s plans had fallen through and that instead he was going to Lake Forest Plaza, making it convenient to drive U.M. home.

Mr. Bowens testified that after he returned to the restaurant from taking Nicole home, he went into his office, finished up the rest of his count, and put his paperwork into the book. He testified this took about fourteen minutes.

Mr. Bowens denied all the allegations concerning his conduct on that day. He stated that while he was driving U.M. he questioned her about an incident that was reported to him wherein U.M. had been sexually assaulted at work by an applicant for employment at Wendy’s, and asked why she had not reported it to him. He was under the belief that this subject, named Chris, was an acquaintance of U.M. He stated that U.M. told him that she did not report it because she did not think that anything would be done about it.

On cross-examination, Mr. Bowens stated that he did not recall turning out the lights when he returned from driving Nicole home, and that he recalled turning them out as they left. He noted that he may have turned out the lights from dining room number two or number three when he departed, which may not have been reflected in the surveillance pictures.

ERRORS PATENT

A review for errors patent reveals none.

ANALYSIS

Defendant alleges three assignments of error. First, he argues he was denied the right to cross-examine the victim regarding how long it took for the alleged incident to occur. Second, defendant argues that the evidence was insufficient to satisfy each element of the charge. Finally, he argues that the trial court erred in sustaining the state’s objection after defense counsel asked the victim whether she had retained a civil attorney.

FIRST ASSIGNMENT OF ERROR

Defendant alleges that he was denied the right to cross-examine the victim regarding how long it took for the alleged incident to occur. During the trial the following colloquy occurred:

Examination By Mr. Harris (Defense Counsel):
Q. Now [U.M.], did you testify that you and him walked' — based on this picture; walked out of the restaurant and into the elevator at 8:57 p.m.?
A. Un-huh.
Q. Okay. Now, from 8:41 p.m. to 8:47 p.m., how long a period of time is that?
A. Like twenty-six minutes.
Q. It’s twenty-six minutes to you?
A. Wait! By—
Q. 8:41, 8:51, 8:57
A. Oh!
By Ms. Casey (The Prosecutor):
Judge I’m going to object to Mr. Harris’ quiz of the victim’s mathematical ability.
By The Court:
Sustained.

Louisiana Code of Evidence Article 611, relative to the mode and order of interrogation and presentation, provides in pertinent part:

A. Control by court. Except as provided by this Article and Code of Criminal Procedure article 773, the parties to a proceeding have the primary responsibility of presenting the evidence and examining the witnesses. The court, however, shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to:
(1) Make the interrogation and presentation effective for the ascertainment of the truth;
(2) Avoid the needless consumption of time; and
(3) Protect witnesses from harassment and undue embarrassment.

The fact that the video surveillance reflected that Mr. Bowens and U.M. were in the restaurant for a period of sixteen and not twenty-six minutes was evident to the jury because the video surveillance tapes were time-stamped. Defense counsel established his point and argued it in closing arguments. Furthermore, defense counsel questioned the victim at length regarding her recollection of the amount of time that transpired after Mr. Bowens returned to the restaurant. There is nothing to indicate that the defendant’s right to cross-examine the victim in this regard was prejudiced. The trial court acted within its discretion in sustaining the objection. The assignment of error lacks merit.

SECOND ASSIGNMENT OF ERROR

Defendant alleges that the evidence was insufficient. The standard of review for the sufficiency of the evidence is whether, viewing the evidence in a light most favorable to the prosecution, a rational trier of fact could have found that the State proved the essential elements beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

In support of his argument, defendant identifies three elements that he suggests demonstrates the victim’s testimony was not worthy of belief or at least that Mr. Bowens’ testimony was more credible, such that a rational jury could not have found him guilty as charged beyond a reasonable doubt.

First, defendant notes that the victim’s testimony regarding the length of time that elapsed during the alleged assault proved to be inaccurate. As noted by defendant, the video surveillance reflects that Mr. Bowens was in the restaurant with U.M. for a period of sixteen minutes. U.M. testified that they were in the restaurant approximately 5-10 minutes longer. Although the physical evidence reflects that the two may have been in the restaurant for a slightly shorter period of time than U.M. recalled, we do not find that discrepancy to be significant, or that a rational jury would have cause to discount the victim’s testimony because of it.

Defendant further alleges that the victim lied at trial about not having read the police report prepared by Officer Fonte-not; however, the record fails to substantiate this fact. During the trial, defense counsel questioned U.M. as to whether she had read Officer Fontenot’s report, and she replied that she had not. Defense counsel then questioned U.M. concerning her testimony at the preliminary hearing wherein she stated, “I don’t know why you going through all that anyway [reports], because they put down stuff that I didn’t say.” U.M. was then asked if she could explain what she had meant by the statement, and she replied that she could not. Other than the victim’s oblique statement, there is nothing in U.M.’s testimony at the preliminary hearing to indicate that she had read Olivia Fontenot’s report, and she never elaborated about who she was referring to as having misquoted her. Furthermore, U.M. was subsequently questioned about another statement that she gave to one Bill Hill. She stated that she subsequently reviewed parts of what he had written and found that there were inaccuracies. It is evident that U.M. may have been commenting on Bill Hill’s report or may have been informed of the contents of Officer Fontenot’s report by another party.

In any case, defendant fails to suggest the relative significance of whether or not U.M. had actually read Officer Fontenot’s report. Indeed, there is no suggestion that U.M. provided false information to Officer Fontenot or that her trial testimony was contradicted by any previous statements.

Finally, defendant suggests that the victim was untruthful in another regard. During cross-examination of the victim, she testified that she had completed a written statement for Officer Fontenot. Officer Fontenot testified that she could not recall whether U.M. had given her a written statement, noting that it had been two years since she conducted the investigation. Officer Fontenot also stated that if U.M. had provided a written statement it would have been acknowledged in her report as having been placed into evidence and that there was no indication of such in her report. Officer Fontenot also testified that she believed that all of her communications with U.M. were oral. By contrast, U.M. testified that she recalled preparing the statement in Officer Fon-tenot’s presence and recalled the color of the paper and how it was formatted, including the presence of an introductory paragraph and title.

The issue of whether U.M. did or did not provide a written statement was certainly not a central issue with regard to the guilt or innocence of the accused. In fact, it is difficult to place any particular relevance to the subject. Furthermore, the fact that there was no notation on the report reflecting a written statement is hardly dis-positive on the issue. The record is certainly insufficient to indicate that U.M.’s testimony was untruthful in this regard.

In sum, defendant has failed to suggest by these three instances any meaningful basis from which this court could conclude that U.M.’s testimony was not worthy of belief or that a rational jury could not have found him guilty beyond a reasonable doubt. Furthermore, when, as here, there is conflicting testimony about factual matters, the resolution of which depends upon a determination of credibility of the witness, the matter is one of the weight of the evidence, not its sufficiency. State v. Allen, 94-1895 (La.App. 4 Cir. 9/15/95), 661 So.2d 1078. The trier of fact determines the weight to be given the evidence presented. It is not the function of an appellate court to assess credibility or reweigh the evidence. State v. Rosiere, 488 So.2d 965 (La.1986). Absent clear evidence to the contrary, a trier of fact’s determination as to the credibility of a witness will not be disturbed. State v. Vessell, 450 So.2d 938, 943 (La.1984). Viewing the totality of the evidence in the light most favorable to the State, the evidence was sufficient to convince a reasonable juror beyond a reasonable doubt that the defendant was guilty of indecent behavior with a juvenile. The assignment of error lacks merit.

THIRD ASSIGNMENT OF ERROR

Defendant alleges that the trial court erred in sustaining the state’s objection after defense counsel asked the victim whether she had retained a civil attorney. Defendant alleges that he was denied the opportunity to demonstrate that the victim had a vested interest in the outcome of the trial, and that his Sixth Amendment right to cross-examine the victim in this regard was unfairly prejudiced. During cross-ex-animation of the victim, the following dialogue occurred:

Mr. Harris: Ma‘am did you tell — you stated at the Preliminary Hearing that you hired a Civil attorney; is that correct?
Ms. Casey (A.D.A.): Objection.
Mr. Blackburn (A.D.A.): Objection.
The Court: Sustained.
Mr. Harris: Please note my objection.
The Court: Objection noted.

The Sixth Amendment to the United States Constitution and Article 1, Section 16 of the 1974 Louisiana Constitution guarantee the right of an accused in a criminal prosecution to confront the witnesses against him. Intrinsic to the right of confrontation is the right of cross-examination. Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). Under both Constitutions, the exposure of a witness’s motivation is a proper right of cross-examination. State v. Brady, 381 So.2d 819 (La.1980).

Article 607 of the Louisiana Code of Evidence provides in pertinent part that:

(1) Extrinsic evidence to show a witness’ bias, interest, corruption, or defect of capacity is admissible to attack the credibility of the witness.

In State v. Kellogg, 350 So.2d 656, 658 (La.1977), the Louisiana Supreme Court reversed the defendant’s conviction after the trial court sustained an objection by the state to defense counsel’s attempt to question the two victims about a civil suit they had filed against the defendant arising out of the incident in question. The court stated:

Our jurisprudence permits full cross-examination in order to expose any bias or interest of the witness which might influence his perceptions or color his testimony. E.g. State v. Robinson, 337 So.2d 1168 (La.1976); State v. Lewis, 328 So.2d 75 (La.1976). Specifically our cases have permitted counsel to inquire into the existence of a civil suit involving the witness or the possibility of civil liability on the part of the witness when such facts indicate that the witness has an interest in the criminal case or is otherwise not totally impartial. State v. Nolan, 341 So.2d 885 (La.1977); State v. Randolph, 334 So.2d 687 (La.1976); State v. White, 206 La. 744, 20 So.2d 10 (1944).
In discussing the necessity for reversal, the court stated:
It is the possibility of gain or loss dependent upon the witness’ testimony which reveals partiality and interest. Thus, defendant is entitled to have the jury consider the fact that the testimony of the [victims] might have been colored because their testimony could affect the merits of their civil claim. The fact that the [victims] could possibly damage themselves by testifying to facts inconsistent with the factual basis of the civil claim reveals that they might have a motive to falsify, or that their testimony may not be wholly correct. Since the evidence of the existence of the suit may tend to show bias or interest, it was evidence which the jury was entitled to consider. Due to the close factual dispute and the limited number of eyewitnesses, we cannot say that the omission of this important evidence did not substantially prejudice the accused.

Likewise, in State v. Berry, 94-249 (La.App. 5 Cir. 10/25/94), 645 So.2d 757, the court, citing State v. Kellogg, reversed the conviction after the defendant was prohibited from questioning the victim regarding having retained an attorney in an apparent effort to make a claim for civil damages. The court found that the ruling precluded the defense from questioning as to possible bias or interest of the alleged victim. The facts of the case were summarized by the court as follows:

The defendant and the victim, Diana Gamponia, had known each other for several years, had dated for seven or eight months and had lived together, but had broken up several weeks before the incident herein. The victim was injured when she fell out of a moving vehicle being driven by the defendant. The dispute at trial was whether the defendant punched the victim and shoved her out of the moving vehicle, or whether she voluntarily jumped out and thereby sustained all her injuries.
The court assessed the impact of the error on the trial as follows:
Gamponia’s [the victim] testimony was crucial to the prosecution’s case; her testimony was not cumulative, because the only eyewitnesses were she and the defendant; except for her bruises and swollen left eye, there was no other evidence which corroborated her testimony as to defendant’s actions while she was in the truck with him; the trial judge’s ruling did not permit defense counsel further latitude in questioning for bias or interest; and the prosecution’s case for second-degree battery rested almost entirely on the credibility of Gamponia.

See also, State v. Quatrevingt, 617 So.2d 484 (La.App. 4th Cir.1992) wherein we upheld the defense counsel’s questioning of existence of a lawsuit, but did not allow him to delve into its details.

Sixth Amendment confrontation errors are subject to harmless error analysis, as the court conducted in State v. Berry. The correct inquiry is whether the reviewing court, assuming that the damaging potential of the cross-examination were fully realized, is nonetheless convinced that the error was harmless beyond a reasonable doubt. Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S.Ct. 1431, 1438, 89 L.Ed.2d 674 (1986). Factors to be considered by the reviewing court include “the importance of the witness’ testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s case.” Van Arsdall, 475 U.S. at 684, 106 S.Ct. at 1438; State v. Wille, 559 So.2d 1321, 1332 (La.1990).

As in State v. Berry, the state’s case rested entirely on the credibility of U.M. There was no corroborating evidence other than the surveillance video, which itself failed to substantiate the defendant’s alleged actions inside the Wendy’s. The State did not present the testimony of the first reporter, U.M.’s teacher. The defendant, who had no apparent previous criminal record, testified in his own behalf. The defense was unable to question whether the victim had retained a civil attorney, let alone filed a lawsuit. Because the evidence presented forced the jury to render its decision solely on the credibility of the two parties, the prosecution cannot establish beyond a reasonable doubt that the error did not contribute to the verdict. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). This assignment of error has merit.

CONCLUSION

For the foregoing reasons, the defendant’s conviction is reversed and we remand this matter to the trial court.

REVERSED AND REMANDED

      . Due to the nature of the offense, the victim's initials have been used.

      . The record does not reflect the identity of Bill Hill.


author: MOON LANDRIEU, Judge Pro Tempore.

text:
    John Michael KOPS v. Gary A. LEE, John M. Futrell, Richard M. Perles, Kops, Lee, Futrell & Perles, L.L.P. and Lee, Futrell & Perles, L.L.P.
    No. 2003-CA-1407.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 31, 2004.

      Robert A. Kutcher, Nicole S. Tygier, Patricia D. Tunmer, Chopin, Wagar, Cole, Richard, Reboul & Kutcher, Metairie, LA, for Plaintiff/Appellant.
    Mitchell J. Hoffman, Joseph E. Wind-meyer, Jr., Lowe, Stein, Hoffman, Allweiss & Hauver, L.L.P. and Elizabeth J. Futrell, Thomas A. Casey, Jr., Jones, Walker, Waechter, Poitevent, Carrere & Denegre, New Orleans, LA, for Defendants/Appel-lees.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge CHARLES R. JONES, and Judge Pro Tempore MOON LANDRIEU).
   MOON LANDRIEU, Judge Pro Tempore.

The plaintiff, attorney John Michael Kops, appeals a partial summary judgment dated October 28, 1999, in which the trial court dismissed Kops’ claims for declaratory judgment, declaring that the partnership agreement was an absolute nullity. We affirm.

Facts

The plaintiff is a former partner of Kops, Lee, Futrell & Perles L.L.P., n/k/a Lee, Futrell & Perles, L.L.P. The plaintiff claims that he had the largest ownership percentage of the partnership, and that he initially contributed more capital to the partnership than any other partner. The former firm commenced in April 1993, and a written partnership agreement was signed by the partners in July 1995. .

In May or early June 1997, the plaintiff asserts that disputes and discussions took place concerning other partners who wanted a greater portion of the partnership income allocated to them. Mr. Kops informed his partners that he was interested in terminating his involvement with the partnership or retiring. Mr. Kops asserts that discussions continued, but Mr. Kops did not leave the partnership and continued to practice law with the firm.

Mr. Kops claims he never withdrew but offered a proposal for practicing independent of the partnership or retiring. Mr. Kops maintains that his proposal resulted in his expulsion from the partnership and the confiscation of the value that he brought to it.

Mr. Kops avers that the defendants used partnership funds to register a website on behalf of the new entity, Lee, Futrell & Perles, and deposited partnership funds into an investment account at Smith Barney, without informing Mr. Kops or providing him with signature authority on the account.

Afterwards, Mr. Kops was given notice on October 29, 1997 of a special partnership meeting scheduled for October 31, 1997. The purpose of the meeting was to consider Mr. Kops’ withdrawal from the partnership or alternatively, to terminate or expel Mr. Kops from the partnership pursuant to Paragraph 8.6 of the partnership agreement. The partners voted to terminate Mr. Kops from the partnership. The partners determined that Mr. Kops was entitled to receive the value of his capital account pursuant to the terms of the partnership agreement.

Procedural History

On November 24, 1997, Mr. Kops filed his petition for preliminary and permanent injunction, declaratory judgment and other relief against his former law partners and the new law firm. Mr. Kops claimed that the firm’s original partnership agreement was a nullity, and that he was entitled to the value of his ownership interest in the total assets of the firm, rather than the value of his capital account. The defendants filed exceptions and a reconventional demand, and the plaintiff answered.

On November 13, 1998, the defendants filed a motion for partial summary judgment. In its October 28, 1999 judgment, the trial court dismissed counts one through three of the amended petition and Mr. Kops’ request for attorney’s fees with prejudice. After the trial court decreed that the judgment was final on May 30, 2003, Mr. Kops appealed.

Meanwhile, on March 17, 2000, Mr. Kops filed a second supplemental and amended petition, which added a new count, requesting an accounting of his capital account under the partnership agreement. The defendants answered and filed a re-conventional demand for sanctions and attorney’s fees against Kops. The plaintiff answered.

Issues

On appeal Mr. Kops contends that the partnership agreement is an absolute nullity under La. C.C. art. 2030 because it violates the rule of public order under Rule 5.6 of the Rules of Professional Conduct and Louisiana’s law pertaining to non-competition agreements under La. R.S. 23:921. Mr. Kops maintains that the trial court erred in dismissing these claims and accompanying claims for accounting and payment of his interest in the partnership, or appointment of a liquidator.

Standard of Review

Appellate courts review summary judgment de novo, using the same criteria utilized by the trial courts to determine whether summary judgment is appropriate. Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181 (La.2/29/00), 755 So.2d 226, 230. The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of actions. Two Feathers Enterprises v. First National Bank, 98-0465 (La.App. 4 Cir. 10/14/98), 720 So.2d 398, 400. The summary judgment procedure is favored and shall be construed to accomplish these ends. La. C.C.P. art. 966 A(2). Pursuant to La. C.C.P. art. 966, the initial burden of proof remains on the mover to show that no genuine issue of material fact exists.

A summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to a material fact, and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966 B. However, if the mover will not bear the burden of proof at trial on the matter that is before the court, the mover’s burden does not require him to negate all essential elements of the adverse party’s claim. Rather, he need only point out that there is an absence of factual support for one or more elements essential to the adverse party’s claim. La. C.C.P. art. 966 C(2).

After the mover has met its initial burden of proof, the burden shifts to the non-moving party to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden at trial. La. C.C.P. art. 966(C)(2). When a motion for summary judgment is properly supported, the non-moving party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided by law, must set forth specific facts showing that there is a genuine issue of material fact for trial. La. C.C.P. art. 967; Melancon v. D & M Enterprises, 95-0644 (La.App. 4 Cir. 9/28/95), 662 So.2d 54. If the non-moving party fails to meet this burden, there is no genuine issue of material fact, and the mover is entitled to summary judgment. La. C.C.P. art. 966; Schwarz v. Administrators of Tulane Educational Fund, 97-0222 (La.App. 4 Cir. 9/10/97), 699 So.2d 895, 897.

The interpretation of contract provisions is typically a matter of law that properly may be decided on motion for summary judgment. Bolton v. Tulane University of Louisiana, 96-1246 (La.App. 4 Cir. 1/29/97), 692 So.2d 1113; Sanders v. Ashland Oil, Inc., 96-1751 (La.App. 1 Cir. 6/20/97), 696 So.2d 1031. The determination of whether the contested terms of the partnership agreement | ^constitute a nullity or a valid contract by the parties is a question of law that may be decided by summary judgment.

Provisions of Partnership Agreement

Mr. Kops claims that .the partnership agreement contains a non-competition clause and forfeiture provisions that render the partnership agreement an absolute nullity.

Mr. Kops refers to various sections of the partnership agreement. Section 1.5 of the partnership agreement states:

1.5Term. The term of the Partnership commenced on April 23, 1993 and shall continue indefinitely unless there is a Liquidating Event, as provided in section 10 hereof.

Section 9.1 defines liquidating events to include:

Section 9
DISSOLUTION AND WINDING UP
9.1 Liquidating Events. The Partnership shall dissolve and commence winding up and liquidating upon the first to occur of any of the following (“Liquidating Events”):
(a) The unanimous decision of the Partners to dissolve, windup, and liquidate the Partnership:
(b) The happening of any other event that makes it unlawful or impossible to carry on the business of the Partnership; or
(c) Any event which causes there to be only one (1) partner.
The Partners hereby agree that notwithstanding any provisions of the law of Louisiana, the Partnership shall not dissolve prior to the occurrence of a Liquidating Event. If it is determined, by a court of competent jurisdiction, that the Partnership has dissolved prior to the occurrence of a Liquidating Event, the Partners hereby agree to continue the business of the Partnership without a winding up or liquidation.

Mr. Kops also refers to Section 8.1, which defines a retiring event:

Section 8
DEATH, DISABILITY, BANKRUPTCY, RETIREMENT, AND EXPULSION
8.1 Retiring Event. For purposes of this Agreement, “Retiring Event” means, with respect to any Partner, the first to occur of (a) the death of such Partner, (b) the Disability of such Partner, (c) the Bankruptcy of such Partner, (d) the Normal Retirement of such Partner, or (e) the expulsion, with or without cause, of such Partner pursuant to Section 8.6hereof. The Partner with respect to whom a Retiring Event occurs is sometime referred to herein as a “Retiring Partner.” Upon the [7occurrence of a Retiring Event, the Partnership shall continue without dissolution, and the Retiring Partner shall cease to be a Partner and shall have no further right to participate in the Partnership’s business, Profits, Losses, or distributions, but shall have only the rights provided in this Section 8.

Section 8.5 provides:

8.5 Normal Retirement. A partner shall be permitted to retire under this Section 8 on or after his sixtieth birthday by giving written notice of his intention to retire as a Partner at least sixty (60) days before the day of such retirement, which notice shall state the date upon which such retirement is to occur. A Partner may retire any other time with the approval of the Partners, other than the Retiring Partner himself. A Partner shall no longer be permitted to participate in the management of the Partnership on or after his seventieth birthday.

Section 8.6 states:

8.6 Expulsion. Any Partner may be expelled immediately, with or without cause, with the affirmative vote of three of the Partners (other than such Partner) at a duly constituted meeting of the Partners specifically noticed for this
purpose. Any of the following reasons would justify expulsion with cause:
(a) Disbarment, suspension, or other major disciplinary action determined adversely to the Partner by any duly constituted authority;
(b) Professional misconduct or violation of the canons of professional ethics, if such misconduct continues after its cessation has been requested by the Partnership;
(c) Any action that injures the professional standing of the firm; if such action continues after its cessation is requested by the Partnership.

Section 7 provides in pertinent part:

Section 7
WITHDRAWALS; ACTIONS FOR PARTITION; BILL FOR PARTNERSHIP ACCOUNTING
7.2 Covenant Not to Withdraw or Dissolve.
Notwithstanding any provision of the Act, each Partner hereby convenants and agrees that the Partners have entered into this Agreement based on their mutual expectation that all Partners will carry out the duties and obligations undertaken by them hereunder, and that, except as otherwise expressly required or permitted hereby, no Partner shall (a) taken any action that would cause a Voluntary Bankruptcy or such Partner, (b) withdraw or attempt to withdraw from the Partnership, (c) exercise any power under the Law of Louisiana to dissolve the Partnership, (d) transfer all or any portion of his interest in the Partnership, (e) petition for judicial dissolution of the Partnership, or (g) demand a return of such Partner’s contributions or profits (or a bond or other security for the return of such contributions or profits) without the unanimous consent of the Partners.
7.3 Consequences of Violation of Covenant. Notwithstanding anything to [the] contrary in the Act, if a Partner (the “Breaching Partner”) attempts to (1) transfer his Partnership interest in breach of subsection 7.1 above, or (iii) withdraw from the Partnership or dissolve the Partnership in breach of Section 7.2 hereof, the Partnership shall continue and such Breaching Partner shall be subject to this Section 7.3 In such event, the following shall occur:
(a) The Breaching Partner shall immediately cease to be a Partner and shall have no further power to act for or bind the Partnership;
(b) The other Partners shall continue to have the right to possess the Partnership’s property and goodwill and to conduct its business and affairs;
(d)The partnership shall have no obligation to pay to the Breaching Partner his contributions, capital, or profits, but may, by notice to the Breaching Partner within thirty (30) days of his withdrawal, elect to make Breach Payments (as hereinafter defined) to the Breaching Partner in complete satisfaction of the Breaching Partner’s interest in the Partnership;
* * *
7.4 Breach Payments. For purposes hereof, Breach Payments shall be made in one hundred twenty installments, each monthly installments, payable at the end of each month, commencing with acceleration of payments in the discretion of the Partnership. The Breach Amount shall be the amount of the Breaching partners [sic] capital on the date of breaching.

Mr. Kops argues that genuine issues of material fact exist as to whether the partnership agreement restricts Mr. Kops’ ability to practice law, rendering the agreement contra bonos mores. Under Section 7.2 Mr. Kops asserts that a partner may never withdraw from the partnership or demand a return of the partner’s contributions or profits without the unanimous consent of the partners. Mr. Kops points out that a partner may not retire from the practice of law before age 60.

Mr. Kops further asserts that if a partner no longer wishes to practice with the partnership, he is penalized to such an extent that he would be unable to practice elsewhere or service his clients under Section 7.3. The breach payment is discretionary and is limited to the value of the withdrawing partner’s capital account on the date of the breach under Section 7.4. Three partners can expel another partner at any time without cause under Section 8.6. Mr. Kops complains | that he is prevented from taking any firm clients with him under Section 8.7, which provides that all client files of the partnership shall remain its property.

Mr. Kops contends that the provisions of the partnership agreement creates an opportunity for abuse. He asserts that the provisions are so burdensome as to render the partnership agreement an absolute nullity. The language of the agreement violates Rule 5.6 of the Rules of Professional Conduct by the absolute prohibition of withdrawal from the partnership and attendant financial penalties.

Mr. Kops refers to Minge v. Weeks, 629 So.2d 545 (La.App. 4 Cir.1993), in which this Court found that although the financial disincentive provisions contained in the employment contract were not directly restrictive, they are of the type that violate the language and spirit of Rule 5.6. Mr. Kops avers that the provisions of the agreement in the present case hamper a partner’s ability to take clients with him.

Forfeiture Clause

Mr. Kops contends that Sections 7.3(d), 7.4 and 8.2 of the partnership agreement amount to forfeiture clauses which are contrary to public policy and unenforceable where the partners can expel him at any time and have the option to deprive him of everything without any reason.

The defendants point out that Mr. Kops maintains an active law practice in Florida. Mr. Kops did not provide any sworn affidavit or proof that he is not practicing law, is unable to practice law due to the defendants’ fault or was denied access to any file that he requested. Concerning Mr. Kops questioning of the accounting of his capital account, the partnership agreement provides that the firm’s regular accountant’s determination of the calculation is binding. The accuracy of the accounting of Mr. Kops’ capital account is an issue that has not yet been ruled on and is not the subject of this appeal. The defendants note that anyone who leaves the firm whether by expulsion, resignation, death or otherwise, gets paid his capital account.

The defendants assert that the severance provisions are not so punitive as to be anti-competitive. The terms of the contract form the law between the parties under La. C.C. art. 1901. In Reina v. Hartenstine, 426 So.2d 654, 655 (La.App. 1 Cir.1982), the First Circuit stated that: “It is well settled in Louisiana that a partnership agreement is an synallagmatic and commutative contract created only by the consent of the parties.” In Hoffman v. Lemle & Kelleher, 2001-1633 (La.App. 4 Cir.7/31/02), 824 So.2d 1253, writ denied 2002-2291 (La.11/15/02), 829 So.2d 433, this Court found that the partner was enti-tied to his share of the net profits as provided by the partnership agreement he entered into with the partnership, rather than a percentage of the total firm assets. In the present case, the partnership agreement provided for allowing the partner to receive the value of his capital account.

Severability Clause

The defendants point out that even if Sections 1.5 and 7 of the partnership agreement are unenforceable, the partnership agreement contains a severability clause. Therefore, Section 8 of the agreement would still limit Mr. Kops to the value of his capital account balance at the time that his membership ceased.

Section 10.5 provides:

10.5 Severability.
Every provision of this Agreement is intended to be severable. If any term or provision hereof is illegal or invalid for any reason whatsoever, such illegality or invalidity shall not affect the validity or legality of the remainder of this Agreement.

In Louisiana courts have held that the existence of a severability clause within a contract evidences the parties’ intent to enforce the remainder of a contract should one of its provisions be invalidated. In Wied v. TRCM, LLC, (La.App. 2 Cir. 7/24/97), 698 So.2d 685, 688, the Second Circuit found that the invalid non-competition clause did not invalidate the entire contract.

In the present case, the partnership agreement contained a severability clause. Any invalid non-competition clause did not invalidate the entire contract.

Consideration of Mr. Gary A. Lee’s Affidavit

Mr. Kops complains that the trial court did not properly consider the Lee affidavit because it was filed only three days before the hearing, in violation of La. C.C.P. art. 966(B).

La. C.C.P. art. 966(B) provides:

B. The motion for summary judgment and supporting affidavits shall be served at least ten days before the time specified for the hearing. For good cause, the court shall give the adverse party additional time to file a response, including opposing affidavits or depositions. The adverse party may serve opposing affidavits, and if such opposing affidavits are served, the opposing affidavits and any memorandum in support thereof shall be served pursuant to Article 1313 at least four days prior to the date of the hearing unless there are local rules of court to the contrary. The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.

Trial judges have discretion, absent prejudice to the moving party, to consider affidavits opposing summary judgment served after the time prescribed by the article. Citizens Bank, Ville Platte v. Manuel, 511 So.2d 31 (La.App. 3 Cir.1987).

Under the provision of La. C.C.P. art. 966 to the effect that an adverse party may serve opposing affidavits prior to the date of hearing on motion for summary judgment, the First Circuit found that the time limitation is mandatory so that affidavits not timely filed are inadmissible in Acme Refrigeration of Baton Rouge, Inc. v. Caljoan, Inc. (La.App. 1 Cir.1977), 346 So.2d 743. However, in Peoples State Bank v. Hwy One Crawfish, Inc., 99-1393 (La.App. 3 Cir. 5/2/00), 771 So.2d 101, writ denied 2000-2842 (La.12/8/00), 776 So.2d 469, the Third Circuit held that the fact that the defendants’ counter-affidavits were filed untimely does not deem them inadmissible; rather, the trial court has discretion to decide whether to admit such affidavits filed untimely.

In Brinkley v. Murrell Enterprises, Inc., 389 So.2d 435 (La.App. 2 Cir.1980), the Second Circuit found that although the affidavit submitted in opposition to the defendant’s motion for summary judgment was not timely served, where the trial court admitted the affidavit into evidence, which it had discretion to do, the reviewing court could consider the affidavit in determining whether there was a material fact at issue.

In the present case, Mr. Kops asserts that the trial court did not find that Mr. Lee’s affidavit was admissible or inadmissible. Mr. Kops avers that his counsel did not have time to contact him to determine if Mr. Lee’s attachment of the draft of the initial partnership agreement was in fact the first draft.

Mr. Futrell filed an affidavit stating that the files were transferred to Mr. Kops. However, Mr. Kops complains that it did not establish that he was properly credited for his prior work on the files and did not have any bearing on the validity of the partnership agreement. Mr. Kops questions the intent of the parties to enter the partnership agreement if Sections 1.5 and 7 were not part of the original agreement, which would render severance impossible.

Mr. Kops did not refute that his clients were able to select him to represent them, or that the clients’ files were turned over to Mr. Kops. The plaintiff was not prejudiced by the admission of the affidavits of Mr. Lee and Mr. Futrell where Mr. Kops left the law firm, he was allotted his capital account balance, and since then, he has practiced law. The trial court did not err in granting the defendant’s motion for summary judgment and dismissing Mr. Kops’s claims based on an illegal contract.

Sanctions

In the reply brief, the defendants assert that the misstatement of the record needs to be addressed by this Court in the form of sanctions. Rule 3.3 of the Rules of Professional Conduct provides in pertinent part: “(a) A lawyer shall not knowingly: (1) Make a false statement of material fact or law to a tribunal.” Rule 8.4 of the Rules of Professional Conduct states in pertinent part: “It is professional misconduct for a lawyer to: (c) Engage in conduct involving fraud, deceit, dishonesty or misrepresentation; (d) Engage in conduct that is prejudicial to the administration of justice.” However, a request for sanctions or attorney’s fees, can be considered only if the party answered the appeal or filed an appeal. La. C.C.P. art. 2133; B. Ben nett Mfg. Co., Inc. v. South Carolina Ins. Co., 96-731 (La.App. 5 Cir. 3/25/97), 692 So.2d 1258. In the present case, the defendants did not appeal or answer the appeal. Their request for sanctions is not considered. The parties may make a complaint for disciplinary proceedings to be considered by the Office of Disciplinary Counsel.

Accordingly, the ruling of the trial court granting the defendants’ motion for partial summary judgment is affirmed.

AFFIRMED.

      . La. C.C. art. 2030 provides:
      Art.2030. Absolute nullity of contracts
      A contract is absolutely null when it violates a rule of public order, as when the object of a contract is illicit or immoral. A contract that is absolutely null may not be confirmed.
      Absolute nullity may be invoked by any person or may be declared by the court on its own initiative.

      . Rule 5.6 of the Rules of Professional Conduct provides:
      Rule 5.6. Restrictions on right to practice
      A lawyer shall not participate in offering or making:
      (a) A partnership or employment agreement that restricts the rights of a lawyer to practice after termination of the relationship, except an agreement concerning benefits upon retirement; or
      (b) An agreement in which a restriction on the lawyer’s right to practice is part of the settlement of a controversy between private parties.

      . La. R.S. 23:921 states:
      § 921. Restraint of business prohibited; restraint on forum prohibited; competing business; contracts against engaging in; provisions for
      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.
      (2) The provisions of every employment contract or agreement, or provisions thereof, by which any foreign or domestic employer or any other person or entity includes a choice of forum clause or choice of law clause in an employee's contract of employment or collective bargaining agreement, or attempts to enforce either a choice of forum clause or choice of law clause in any civil or administrative action involving an employee, shall be null and void except where the choice of forum clause or choice of law clause is expressly, knowingly, and voluntarily agreed to and ratified by the employee after the occurrence of the incident which is the subject of the civil or administrative action.
      B. Any person, including a corporation and the individual shareholders of such corporation, who sells the goodwill of a business may agree with the buyer that the seller will refrain from carrying on or engaging in a business similar to the business being sold or from soliciting customers of the business being sold within a specified parish or parishes, or municipality or municipalities, or parts thereof, so long as the buyer, or any person deriving title to the goodwill from him, carries on a like business therein, not to exceed a period of two years from the date of sale.
      C. Any person, including a corporation and the individual shareholders of such corporation, who is employed as an agent, servant, or employee 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. An independent contractor, whose work is performed pursuant to a written contract, may enter into an agreement to refrain from carrying on or engaging in a business similar to the business of the person with whom the independent contractor has contracted, on the same basis as if the independent contractor were an employee, for a period not to exceed two years from the date of the last work performed under the written contract.
      D. Upon or in anticipation of a dissolution of the partnership, the partnership and the individual partners, including a corporation and the individual shareholders if the corporation is a partner, may agree that none of the partners will carry on a similar business within the same parish or parishes, or municipality or municipalities, or within specified parts thereof, where the partnership business has been transacted, not to exceed a period of two years from the date of dissolution.
      E. (1) Parties to a franchise may agree that:
      (a) The franchisor shall refrain from selling, distributing, or granting additional franchises to sell or distribute, within defined geographic territory, those products or services which are the subject of the franchise.
      (b) The franchisee shall:
      (1) During the term of the franchise, refrain from competing with the franchisor or other franchisees of the franchisor or engaging in any other business similar to that which is the subject of the franchise.
      (ii) For a period not to exceed two years following severance of the franchise relationship, refrain from engaging in any other business similar to that which is the subject of the franchise and from competing with or soliciting the customers of the franchisor or other franchisees of the franchisor.
      (2) As used in this Subsection:
      (a) "Franchise” means any continuing commercial relationship created by any arrangement or arrangements as defined in 16 Code of Federal Regulations 436.2(a).
      (b) "Franchisee” means any person who participates in a franchise relationship as a franchisee, partner, shareholder with at least a ten percent interest in the franchisee, executive officer of the franchisee, or a person to whom an interest in a franchise is sold, as defined in 16 Code of Federal Regulations 436.2(d), provided that no person shall be included in this definition unless he has signed an agreement expressly binding him to the provisions thereof.
      (c) "Franchisor” means any person who participates in a franchise relationship as a franchisor as defined in 16 Code of Federal Regulations 436.2(c).
      F. (1) An employee may at any time enter into an agreement with his employer that, for a period not to exceed two years from the date of the termination of employment, he will refrain from engaging in any work or activity to design, write, modify, or implement any computer program that directly competes with any confidential computer program owned, licensed, or marketed by the employer, and to which the employee had direct access during the term of his employment or services.
      (2) As used in this Subsection, "confidential” means that which:
      (a) Is not generally known to and not readily ascertainable by other persons.
      (b) Is the subject of reasonable efforts under the circumstances to maintain its secrecy.
      (3) As used in this Subsection, "computer program” means a plan, routine, or set of statements or instructions, including any subset, subroutine, or portion of instructions, regardless of format or medium, which are capable, when incorporated into a machine-readable medium, of causing a computer to perform a particular task or function or achieve a particular result.
      (4) As used in this Subsection, "employee” shall mean any individual, corporation, partnership, or any other entity which contracts or agrees with an employer to perform, provide, or furnish any services to, for, or on behalf of such employer.
      G. Any agreement covered by Subsections B, C, D, E, or F of this Section shall be considered an obligation not to do, and failure to perform may entitle the obligee 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 injunc-tive relief enforcing the terms of the agreement.

      . La. C.C.P. art. 2133 states:
      Art. 2133. Answer of appellee; when necessary
      A. An appellee shall not be obliged to answer the appeal unless he desires to have the judgment modified, revised, or reversed in part or unless he demands damages against the appellant. In such cases, he must file an answer to the appeal, stating the relief demanded, not later than fifteen days after the return day or the lodging of the record whichever is later. The answer filed by the appellee shall be equivalent to an appeal on his part from any portion of the judgment rendered against him in favor of the appellant and of which he complains in his answer. Additionally, however, an appellee may by answer to the appeal, demand modification, revision, or reversal of the judgment insofar as it did not allow or consider relief prayed for by an incidental action filed in the trial court. If an appel-lee files such an answer, all other parties to the incidental demand may file similar answers within fifteen days of the appellee’s action.
      B. A party who does not seek modification, revision, or reversal of a judgment in an appellate court, including the supreme court, may assert, in support of the judgment, any argument supported by the record, although he has not appealed, answered the appeal, or applied for supervisory writs.


text:
    Betty ALTVATER v. LaBRANCHE PROPERTIES INC. and Royal Roods, Inc. d/b/a Royal Cafe’.
    No. 2003-CA-1350.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 31, 2004.

      Miles Trapolin, Trapolin Law Firm, New Orleans, LA, for Plaintiff/Appellant.
    Anthony C. Marino, Stephen Busch Pa-nus, Schully, Roberts, Slattery, Jaubert & Marino, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge CHARLES R. JONES, JUDGE DENNIS R. BAGNERIS SR., and Judge EDWIN A. LOMBARD).
   CHARLES R. JONES, Judge.

The Appellant, Betty Altvater, appeals the granting of summary judgment in favor of the Appellant, LaBranche Properties, Inc. (hereinafter “LaBranche”), by the district court. LaBranche was dismissed with prejudice from the lawsuit and this timely appeal follows. We dismiss this appeal without prejudice.

Facts and Procedural History

This action arises out of a trip and fall that occurred on October 9, 1998 as Ms. Altvater was attempting to enter the Royal Café, a restaurant located at 700 Royal Street in the French Quarter. Ms. Altva-ter instituted this suit on October 1, 1999, naming as defendants Royal Foods, Inc. (hereinafter “Royal Foods”) d/b/a Royal Café, and LaBranche, the alleged owner of the premises leased by the Royal Café. In the district court, Ms. Altvater alleged that the defendants were negligent in the following particulars: (1) there was a design defect in the entrance of Royal Café which hid half of the first step, making it appear lower than it actually was, (2) the defendants failed to clearly mark the highly unusual step, (3) the defendants failed to [adequately] warn her of the highly unusual step, and (4) the defendants maintained a higher than normal step.

On February 25, 2003, LaBranche filed a Motion for Summary Judgment asserting that it had shifted all responsibility for the condition of the leased premises to Royal Foods pursuant to a provision in its lease authorized by La. R.S. 9:3221. Because it claimed that it did not know, nor should it have known, of any alleged vice or defect to the entrance of the Royal Cafe, LaBranche asserted that any liability to Ms. Altvater rested solely with Royal Foods. A second Motion for Summary Judgment, filed jointly by LaBranche and Royal Foods on February 25, 2003, asserted that they should be dismissed from this lawsuit for the following reasons: (1) because the condition of the stairs at the entrance to the Royal Café did not constitute an actionable design and/or construction defect, (2) because the Royal Café had exercised reasonable care by warning its patrons to “Watch Your Step”, and (3) because the style and height of the step leading into the Royal Café complied with the Vieux Carre’ Commission’s guidelines. The two Motions for Summary Judgment were set for contradictory hearing on March 14, 2003.

Ms. Altvater opposed the defendants’ Joint Motion for Summary Judgment arguing that a genuine issue of material fact remained as to whether the step on which she fell was defective.

Following a hearing, the district court rendered judgment on March 20, 2003, granting the Motion for Summary Judgment filed by LaBranche and dismissing it from the lawsuit, with prejudice, but denying the Joint Motion for Summary Judgment filed by LaBranche and Royal Foods. Thereafter, on March 27, 2003, Ms. Altva-ter filed a Motion for New Trial as to the district court’s grant of summary judgment in favor of LaBranche asserting that because the defendants admitted in affidavits that the officers of LaBranche and Royal Foods were one in the same, any knowledge that either had regarding a defect in the leased property would have necessarily been imputable to the other. As such, LaBranche would not be relieved of all liability to Ms. Altvater, despite any language in the lease to the contrary, if it had notice of the defect. Ms. Altvater’s Motion for New Trial motion was summarily denied on March 31, 2003, and she filed a Motion to Appeal on April 11, 2003.

Legal Analysis

The initial issue that we must address is whether the district court’s March 20, 2003 judgment is a final judgment for purposes of immediate appeal. To resolve this issue, we turn to C.C.P. art. 1915, entitled “Partial final judgment; partial judgment, partial exception; partial summary judgment.” The version of that article that applies to this matter provides, in pertinent part:

B. (1) When a court renders a partial judgment or partial summary judgment or sustains an exception in part, as to one or more but less than all of the claims, demands, issues, theories, or parties, whether in an original demand, re-conventional demand, cross-claim, third party claim, or intervention, the judgment shall not constitute a final judgment unless specifically agreed to by the parties or unless designated as a final judgment by the court after an express determination that there is no just reason for delay.
(2) In the absence of such a determination and designation, any order or decision which adjudicates fewer than all claims or the rights and liabilities of fewer than all the parties, shall not terminate the actions as to any of the claims or parties and shall not constitute a final judgment for the purpose of an immediate appeal. Any such order of decision issued may be revised at any time prior to the rendition of the judgment adjudicating all the claims and the rights and liabilities of all the parties.

The March 20, 2003 Order granted summary judgment in favor of LaBranche, and only that defendant was dismissed from this lawsuit. Since Royal Foods remained a viable defendant, the Order is considered non-appealable absent of the district court’s designation that the Order is a final judgment after having made an express determination that there was no just reason for delay, or a specific agreement by the parties that the Order constituted a final and appealable judgment. Jackson v. America’s Favorite Chicken Co., 98-0605 (La.App. 4 Cir. 2/3/99), 729 So.2d 1060 and Miller v. Tassin, 02-2383 (La.App. 4 Cir. 6/4/03), 849 So.2d 782. Further, this Court has held that any certification or agreement of the parties must be of record when the appeal is first filed. Jackson, 729 So.2d at 1066. No such agreement by the parties or designation and determination by the district court appears in the record. Accordingly, the Order is a non-final, non-appealable interlocutory judgment.

To facilitate resolution of this threshold question, we ordered Ms. Altva-ter to show cause why this appeal should not be dismissed for lack of jurisdiction. Ms. Altvater responded on December 15, 2003 with a Memorandum in Opposition to the Dismissal of her appeal and Motion to Supplement Record. Therein, Ms. Altva-ter admitted that, under the “old” C.C.P. art. 1915, she had prematurely filed an appeal of a partial judgment. She claimed, however, that any error was cured by the district court’s having entered a certification, on December 11, 2003, that its March 20, 2003 judgment was final for purposes of immediate appeal. Citing Fraternal Order of Police v. City of New Orleans, 2002-1801 (La.11/8/02), 831 So.2d 897, Ms. Altvater avers that a judgment can be certified “at any time.”

While we agree that the Louisiana Supreme Court did hold in Fraternal Order of Police that a Motion to Certify a Partial Judgment as Final does not have to be filed within a specific time period after the district court’s issuance of the judgment, we note that the Supreme Court further held that the delay for filing an appeal of a partial judgment begins on the day the Notice of Signing of a motion to certify is mailed. Id. at pp. 4-5, 831 So.2d at 899-900. That holding comports with our earlier decision in Jackson that any certification must be of record when the appeal is first filed. Jackson, 729 So.2d at 1066. Because the March 20, 2003 partial judgment had not been certified as final when this appeal was first filed on April 11, 2003, we must dismiss this appeal for lack of appellate jurisdiction.

Even if we were to accept the trial court’s post-appeal certification of the March 20, 2003 judgment, however, the boilerplate certification provided by the district court fails to include “an express determination that there is no just reason for delay.” La. C.C.P. art. 1915(B)(1) [emphasis added]. The certification signed by the district court on December 11, 2003 provided as follows:

CERTIFICATION
IT IS ORDERED, ADD AND DECREED that the Judgment of March 20th, 2003 in the above entitled and captioned mater is hereby Certified as a Final Judgment for the purposes of appeal;
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the Clerk of Court, Dale Atkins, is hereby ordered to supplement the appeal record, in the Fourth Circuit Court of Appeal, 2003-CA-1350, with the Certification of the Judgment on or before December 16, 2003.

This Court has, on numerous occasions, interpreted the foregoing phrase to mean that in order for a certification to be valid, the district court must give explicit reasons, on the record, as to why there is no just reason for delay; mere conclusory statements do not suffice. Lightell v. Phillip, 00-2411, pp. 2-3 (La.App. 4 Cir. 9/19/01), 797 So.2d 120, 122, citing Nalty v. D.H. Holmes Co., Ltd., 99-2826 (La.App. 4 Cir. 12/27/00), 775 So.2d 695, Jackson v. America’s Favorite Chicken Co., 98-0605 (La.App. 4 Cir. 2/3/99), 729 So.2d 1060; and Montgomery v. Gosserand, 98-1966 (La.App. 4 Cir. 12/23/98), 725 So.2d 92.

The certification at issue herein fails to state, much less list explicit reasons on the record why, there is no just reason for the delay of this appeal. Accordingly, the certification was invalid and cannot serve as a basis for our exercise of appellate jurisdiction over the admittedly partial March 23, 2003 judgment.

Decree

For the foregoing reasons, this appeal is dismissed without prejudice.

APPEAL DISMISSED WITHOUT PREJUDICE.

      . By way of a supplemental petition, Interstate Fire and Casualty Company ("Interstate”), the alleged liability insurer of Royal Foods, was named as an additional defendant. In a judgment dated June 21, 2001, however, the plaintiff dismissed her claims against Interstate without prejudice.

      . Louisiana Revised Statute 9:3221, entitled "Assumption of responsibility by lessee; liability of owner” provides:
      The owner of premises leased under a contract whereby the lessee assumes responsibility for their condition is not liable for injury caused by any defect therein to the lessee or anyone on the premises who derives his right to be thereon from the lessee, unless the owner knew or should have known of the defect or had received notice thereof and failed to remedy it within a reasonable time.

      . The language in 1915(B)(1) was amended in La. Act 1999, No. 1263 to eliminate confusion with 1915(A) by the removal of “parties” from (B)(1). However, Section 3 of the Act provided that “[t] he provisions of this Act shall become effective on January 1, 2000, and shall apply to all actions filed on or after January 1, 2000.” Because this action was filed before January 1, 2000, the 1997 version of La. C.C.P. art. 1915 applies to this matter.

      . The trial court apparently failed to supplement the record on appeal with the December 11, 2003 certification. As mentioned previously, however, the appellant has filed a motion to supplement the record with the certification.