author: | .CARTER, C.J.

text:
    Mario F. SACCO, Individually, and on Behalf of Michael C. Sacco, Deceased v. Don R. ALLRED, Midland Risk Insurance Company, Terry A. Boudreaux, Paul A. Picou, the Town of Golden Meadow, Louisiana, the Town of Golden Meadow, Louisiana Police Department, and Chief of Police, Ray Adams, Golden Meadow Police, Ex Officio.
    No. 2002 CA 0141.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 19, 2003.

      Gerald J. Nielsen, Metairie, for Defendants/Appellants, Town of Golden Meadow and Paul A. Picou.
    Scott R. Bickford, New Orleans, for Plaintiff/Appellee, Mario F. Sacco.
    Before: CARTER, C.J., WHIPPLE, and CIACCIO, JJ.

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

   | .CARTER, C.J.

Near midnight on March 8,1996, Don R. Allred, who was driving Terry A. Bou-dreaux’s car, lost control of the vehicle in a curve on Louisiana Highway 1 in La-fourche Parish. The car flipped over and landed in a canal. Boudreaux and Michael C. Sacco were passengers in the car. Sacco drowned as a result of the accident.

Earlier that evening, at approximately 10:45, Officer Paul Picou of the Golden Meadow Police Department (GMPD) stopped the same vehicle about a block from the Golden Meadow Town Hall. Picou took the three men to Town Hall, where he determined that Boudreaux was too intoxicated to drive. He ticketed Boudreaux for reckless operation of a motor vehicle and driving left of center. Boudreaux told Pi-cou that Allred had not been drinking. According to Picou, Allred showed no sign of impaired faculties. He was coherent, with no slurred speech, and steady on his feet. Allred told Picou he had a valid driver’s license, but it was not in his possession. Picou called the Louisiana State Police and asked for a check of Allred’s license, but due to computer problems, the State Police was unable to obtain that information for him. Picou allowed the three men to leave Town Hall in Bou-dreaux’s vehicle, with Allred at the wheel, at approximately 11:10 p.m. The accident occurred roughly 45 minutes later.

Sacco’s father, Mario F. Sacco (plaintiff), sued Picou; the GMPD; Ray Adams, chief of the GMPD; the town of Golden Meadow (Golden Meadow); Allred; Boudreaux; and Midland Risk Insurance Company, which provided liability insurance to Bou-dreaux and to Allred, as a permissive user of Boudreaux’s car. After a bench trial, judgment was rendered in favor of defendants and against plaintiff, dismissing plaintiffs suit against all defendants. Plaintiff moved for a new trial, which was granted. After the hearing on the new trial, the trial court reversed itself, rendering judgment in favor of plaintiff for $50,000.00 in compensatory damages and $2,037.80 in special damages. The court also awarded plaintiff $25,000.00 in exemplary damages against Allred. The | ¡¡court assigned fault 50% to Allred and 50% to Picou and his employer, Golden Meadow.

Picou and Golden Meadow (defendants) appeal, contending that Picou’s conduct was reasonable and that alternatively the trial court erred in failing to find Sacco was negligent for choosing to ride in the vehicle with Allred driving. Plaintiff answered the appeal, seeking an increase in damages.

TRIAL COURT’S FINDINGS

No-DWI-arrest policy

The trial court’s written reasons in this case are somewhat confusing. The court expressed its concern and displeasure about Golden Meadow’s policy of arresting for reckless operation of a motor vehicle (ROMV) instead of driving while intoxicated (DWI) in its written reasons:

As in all professions where the exercise of discretion is part of daily operations, there is a fine line between the exercise of reasonable discretion and malfeasance or gross negligence. When suffering and death result from the actions or inactions of those exercising the discretion, the inquiry is more pointed and the degree of tolerance |4shrinks. In this day of heightened awareness of the dangers of drinking and driving, which attitude was just as acute in 1996, it is almost inconceivable that any law enforcement agency could purposely and consistently look away from the crime of driving while intoxicated. True, the officers in Golden Meadow were charged with taking the intoxicated driver from behind the wheel or, in some remote circumstances, towing and impounding the vehicle. However, the mere fact that there is a policy, a planned system of denial, makes any situation arising out of a case in that town ripe for blame and punishment, for the town and its officials who continue to support such a policy in the name of discretion, social policy, and economic concerns. (Emphasis added.)

After a lengthy discussion about the town’s policy, however, the court stated: “[T]he liability issues in this case do not arise out of the policy not to arrest drunk drivers.” We agree. Whether Boudreaux was arrested for DWI or ticketed for ROMV was not determinative of whether defendants breached a duty to Michael Sacco.

Failure to ascertain whether Allred had a valid license

The trial court also discussed at length Picou’s decision to allow Allred to drive Boudreaux’s vehicle without a valid driver’s license in his possession, although he stated in written reasons that the “liability issues in this case do not arise out of ... the actions of Officer Picou in permitting Allred to drive the Boudreaux vehicle away from the Town Hall.” The court noted that Louisiana Revised Statute 32:667 A(4) sets forth rules for releasing a vehicle to another driver when the original driver is arrested for DWI. That statute provides in pertinent part:

If the vehicle is operable and a passenger in the vehicle who is not under the influence of alcohol has a valid driver’s license, the officer shall allow the passenger to take control of the vehicle and shall not order or procure towing services for the vehicle. If the vehicle does not create a hazard or obstruction to traffic and the motoring public, and if there is no passenger in the vehicle who possesses a valid driver’s license and who is not under the influence of alcohol, the officer, before ordering or procuring towing services, shall allow the arrestee a reasonable time and opportunity to contact another person to take possession or control of the vehicle on behalf of the arrestee. Reasonable time to notify and take possession of the vehicle shall be in the sole discretion of the officer.

The statute also provides immunity for an agency that allows another person to take control of the vehicle on the arres-tee’s behalf:

However, the law enforcement agency, the law enforcement officer, the state, and the political subdivision shall not be hable for damages, injuries, or deaths occasioned by the vehicle not being towed immediately or by another person taking possession or control of the vehicle on behalf of the arrestee.

1 sThe trial court found that the immunity provision did not apply because there was no DWI arrest.

But despite finding the statute was inapplicable, the court held that the provisions of section 667 A(4) regarding release of a vehicle should be the standard for all Louisiana police officers. The court found that Picou had a clearly defined, non-discretionary duty to release the car only to a licensed driver who was in possession of his license, and that Picou’s breach of this duty was a cause-in-fact of the accident: “[H]ad he applied the driver’s license requirement ... no one would have driven the vehicle away from Town Hall that night, and there would not have been an accident.”

The liability of a police officer is determined using the duty/risk analysis. Mathieu v. Imperial Toy Corp., 94-0952, p. 4 (La.11/30/94), 646 So.2d 318, 321. For a plaintiff to recover, he must prove the defendant had a duty to conform his conduct to a specific standard of care; he failed to conform his conduct to that standard; that substandard conduct was a cause-in-fact of the injury, the substandard conduct was a legal cause of the injury; and damages. Each inquiry must be answered affirmatively. Id. at 822.

Although Picou’s failure to ascertain whether Allred had a valid driver’s license may have been a cause-in-fact of the accident, i.e., but for Picou allowing Allred to drive, the accident would not have occurred, Picou’s action was not a legal cause. A police officer has a duty to protect the motoring public from the unreasonable risk of harm caused by drivers who are unlicensed because they are untrained or those who have had their driving privileges revoked because they committed offenses such as driving while intoxicated. State Trooper Scott Stagg testified Allred’s Illinois driver’s license had been suspended. Allred testified that he had licenses in the past in Mississippi, Illinois, and Florida. Obviously he had passed driver’s licensing tests and obtained a driver’s license, so he was not untrained. Allred testified his Illinois license was suspended for having no proof of insurance. Plaintiff presented no evidence to contradict that testimony. We cannot simply assume that the Illinois suspension had any bearing on his ability to drive.

IfiWag Allred impaired while at Town Hall?

The trial court found it more probable than not that Allred’s failure to maintain control of his vehicle, likely due to his intoxication, caused the accident. The evidence supports the trial court’s finding that Allred’s impairment and failure to maintain control of his vehicle caused the accident. At 3:57 on the morning after the accident, Allred’s blood alcohol level was .01. Two experts, William J. George, a professor of pharmacology and director of toxicology at Tulane Medical School, and Gerald Liuzza, a board-certified forensic pathologist who teaches at LSU Medical School, attempted to calculate Allred’s blood-alcohol content at the time of the accident. Liuzza “back extrapolated,” assuming that Allred’s last drink was at 10:40 that evening. Liuzza emphasized that the calculations were imprecise because of differences in individual elimination rates, characterizing them as “a broad, general, ballpark approximation.” Liuzza calculated that if Allred’s last drink was at 10:40 p.m., his blood-alcohol content at the time of the accident was between .05 and .11, with an average or mid-range of .07. Using a slightly different elimination rate, George calculated that the rate ranged from .0655 to .0715, with a mid-range of .068. However, Liuzza testified it was possible for Allred to reach a blood-alcohol content of .07 by drinking three or four shots of hard liquor and three or four beers during the 30-minute period before the accident.

Plaintiff contends Allred was impaired when Picou allowed him to drive away from Town Hall. Three officers were present during the time Allred, Sacco, and Boudreaux were at Town Hall, and all three testified Allred appeared sober. Pi-cou testified Allred was coherent, his speech was not slurred, and he walked with a steady gait. Picou stated Bou-dreaux told him Allred had not been drinking.

Troy A. Dufrene, a Harbor Police officer, noticed three civilians when riding past Town Hall at about 11:00 on the night of the accident. He stopped to see if Picou needed help. At one point he testified he was there with the three men for 15 to 25 minutes; he also testified the three men were in Town Hall 20 to 30 minutes after he arrived. He heard Allred tell Picou he had had nothing to drink, and heard Bou-dreaux give Allred permission to drive his car. Dufrene described Allred as “the babysitter” who |7tried to keep Sacco and Boudreaux quiet and out of trouble. He overheard Allred’s conversation with Sacco and Boudreaux and found it to be rational and unimpaired.

Chet Louviere, a Lafourche Parish Sheriffs deputy, was off duty and in his personal car when he saw Picou stop Bou-dreaux. He stopped and watched Picou issue a traffic citation to Boudreaux, then followed Picou to Town Hall. He overhead Picou interrogate the three men in an attempt to determine if one of them could drive. Allred appeared to be sober. He was steady on his feet and spoke clearly. Louviere asked Allred to breathe directly in his face so he could check for the odor of alcohol. Allred complied without hesitation. Louviere testified he smelled no alcohol. He personally felt there was no problem with permitting Allred to drive. He walked the three men to Boudreaux’s car and noticed no problems with Allred’s gait.

Defendants contend Allred became intoxicated after leaving Town Hall. The only evidence regarding the activities of the three men during the evening before the accident is the generally unreliable testimony of Allred and Boudreaux. All-red testified he drank nothing, before or after the traffic stop, but that testimony is belied by the first blood-alcohol test. Bou-dreaux testified that on the night of the accident he, Allred and Sacco went to a bar in Fourchon and two bars in Grand Isle. He stated they were asked to leave all three bars because Sacco, who was drunk, made passes at the female bartenders. His testimony was equivocal as to how much Allred drank; he admitted he paid less attention to those around him because he was drunk. Boudreaux stated the final bar they visited that evening was in Golden Meadow “right by the floodgate” and just past Jack’s Motel. He stated that bar was not the bar called Caroline’s. Bou-dreaux denied stopping at any bars after leaving Town Hall but stated they drank beer that was in the car.

Priscilla Griffin offered the only other testimony regarding the three men’s activities that night. Griffin was the bartender at a bar called The Lights, which was formerly known as Caroline’s. She testified they arrived some time between 10:80 p.m. and 11:80 p.m. and were the only customers in her bar that night. When they arrived, Allred seemed “pretty straight” and conversed with her, but Sacco and Boudreaux were |8obviously drunk. They did not stay long, but each of the three had three or four shots with beer chasers before leaving the bar shortly before midnight. She remembered them well because of Allred’s height and the $100.00 tip they gave her. She also recalled that she wanted to close the bar at midnight and encouraged them to leave so she could shut down. She also thought of them immediately the next morning when she learned of the accident.

The trial court found that, based on the testimony of Picou, Dufrene, and Stagg, and considering the police logs, it was more probable than not that the three men visited The Lights bar before they were stopped at 10:45 p.m. by Officer Picou. But the testimony of these officers and the logs tell us nothing about the men’s whereabouts before the accident. We know only that they were stopped by Picou at approximately 10:45 p.m., left Town Hall about 11:10 p.m., and were involved in the accident at 11:55 p.m., approximately 45 minutes later. Stagg’s testimony does nothing more than establish the approximate time of the accident, based on when he was dispatched to the scene. Picou’s log shows that the traffic stop ended at 11:10 p.m. Picou had no other entry until 1:50 a.m., and he testified he has no idea what went on during that time period. Dufrene’s log shows that he left Town Hall at 11:40 p.m., but he testified he visited with Picou for a few minutes after the three men left. Of the evidence mentioned by the trial court — the officer’s testimony and the police logs — the only evidence that remotely supports the factual finding is Officer Dufrene’s log showing he left at 11:40 p.m. But his testimony reflects that he arrived at 11:00 p.m. and was with the three men somewhere between 15 and 30 minutes.

A factual finding may be reversed only if the trial court is manifestly erroneous. Theriot v. Lasseigne, 93-2661, p. 5 (La.7/5/94), 640 So.2d 1305, 1310. The standard of appellate review of factual findings is a two-part test: 1) the appellate court must find from the record there is a reasonable factual basis for the trial court’s finding, and 2) the appellate court must further determine the record establishes the finding is not clearly |9wrong (manifestly erroneous). Id. We need not reach the second part of the test in this case as we find no reasonable factual basis in the record to support the trial court’s conclusion that the three men visited the bar where Griffin worked prior to their encounter with Picou. Boudreaux testified the bar he went to before the traffic stop was not Caroline’s. Griffin’s testimony was unequivocal that the men left her bar just before midnight. According to the joint stipulations, the trip from Town Hall to the accident scene takes 17 minutes when driving at the legal speed limit. According to Picou, The Lights bar is two minutes from Town Hall. The men obviously did not drive straight from Town Hall to the accident scene, despite Allred’s testimony that he did so. Boudreaux testified they drove around Golden Meadow looking for the home of some girl he knew. He also testified, however, that his memory is impaired.

Having found that the trial court erred in finding that the three men visited The Lights before being stopped by Officer Picou and that their last drink was at 10:40, we must determine de novo whether plaintiff proved that it was more likely than not that Allred was impaired while at Town Hall.

As stated above, Boudreaux was very equivocal as to the amount Allred drank prior to the traffic stoop, while Allred denied drinking at all. The only other evidence as to Allred’s condition at the time of the traffic stop is the testimony of the three officers, Picou, Dufrene, and Louviere, all of whom testified that All-red appeared sober. While it is likely that Allred had drunk alcohol at some point during the evening preceding the traffic stop, we find plaintiff failed to prove Allred was impaired while at Town Hall.

POLICE OFFICERS’ STANDARD OF CARE

A police officer, in carrying out his authority to enforce laws, has a duty to perform his function with due regard for the safety of all citizens who will be affected by his action. Hardy v. Bowie, 98-2821, p. 12 (La.9/8/99), 744 So.2d 606, 614. He must act reasonably to protect life and limb, to refrain from causing injury or harm, and to exercise respect and concern for the well being of those he is employed to protect. Syrie v. Schilhab, 96-1027, p. 5 (La.5/20/97), 693 So.2d 1173, 1177; Lavine v. Jackson, 97-2804, p. 5 (La.App. 1 Cir. 12/28/98), 730 So.2d 958, 962, writ denied, 99-0898 (La.5/28/99), 743 So.2d 677, cert. denied, 528 U.S. 973, 120 S.Ct. 417, 145 L.Ed.2d 326 (1999).

The reasonableness of an officer’s actions depends on the totality of the facts and circumstances of each case. Mathieu v. Imperial Toy Corp., 646 So.2d at 322; Lavine, 730 So.2d at 962. The scope of an officer’s duty to act reasonably under the circumstances does not extend so far as to require that the officer always choose the best or even a better method. Thus, in considering whether an officer breached his duty, the court’s task is not to determine whether the officer should have acted differently or if there were better options available, but only to determine whether his actions were reasonable under the totality of the circumstances. Syrie, 693 So.2d at 1177; Mathieu, 646 So.2d at 325; Lavine, 730 So.2d at 962. The existence of other available alternative methods does not, in and of itself, render the method chosen unreasonable. Officers are not required to exercise superhuman judgment but should be able to rely on their training and common sense. Mathieu, 646 So.2d at 325 n. 12.

Plaintiff contends Picou was negligent in faffing to administer a field-sobriety test to Allred. Plaintiff seeks to impose a universal duty on police officers to administer a field-sobriety test before allowing a passenger to drive when the officer determines that the driver is impaired, whether the passenger appears impaired or not. Liuzza testified that a properly administered field-sobriety test could detect alcohol impairment that was not otherwise observable. He stated that a positive lateral-gaze nystagmus test might be the “only clue” that someone was under the influence of alcohol. George J. Arm-bruster, Jr., who testified as an expert in police procedures, agreed with Liuzza that a field-sobriety test would give indications of intoxication that could not be seen upon casual observation. He stated the test is particularly useful in evaluating persons who are alcohol tolerant.

Armbruster further testified, however, that an officer should administer a field-sobriety test only if he has reason to suspect the person he is dealing with is intoxicated. He opined that, based on the evidence he had reviewed, at no point were Picou’s suspicions raised to the point that he thought Allred might be impaired. While I^Picou had the authority to administer a full-battery field-sobriety test to Allred, according to Armbruster, Picou had no obligation to do so because Allred did not appear intoxicated or otherwise impaired.

The trial court held that Picou should have suspected Allred of being intoxicated and should have conducted a field-sobriety test. While conducting a field-sobriety test might have been a better thing to do, the scope of Picou’s duty to act reasonably under the circumstances did not extend so far as to require that he choose the best or even a better method. After reviewing all the evidence, we find that Picou acted reasonably in light of the totality of circumstances in this case. We thus reverse the portion of the trial court’s judgment assigning 50% fault to Picou and Golden Meadow, amend the judgment to cast All-red with 100% fault, and render judgment dismissing plaintiffs claims against Picou and Golden Meadow. Because of this finding, we pretermit discussion of defendants’ remaining assignments of error.

ANSWER TO APPEAL

Plaintiff answered the appeal seeking an increase in general damages. The trial court declined to award survival damages to plaintiff and awarded $50,000.00 in general damages for wrongful death. Plaintiff contends that Sacco was “conscious to some degree” following the accident and that the trial court was manifestly erroneous in failing to award survival damages. Plaintiff further contends that $50,000.00 is an unreasonably low sum to award for wrongful death.

Survival damages

A trial court may award damages for pain and suffering in a survival action where there is the smallest amount of evidence of pain, however brief, on the part of the deceased, based on his actions or otherwise. Factors to be considered in assessing quantum for pain and suffering are the severity and the duration thereof. The survival action permits recovery only for damages actually suffered by the deceased from the time of injury to the moment of death, including pain and suffering, loss of earnings, and any other damages sustained before death. Samuel v. Baton Rouge Gen. Med. Ctr., 99-1148, p. 4 (La.App. 1 Cir. 10/2/00), 798 So.2d 126, 129. Where there is no | ^indication that a decedent consciously suffered, an award for pre-death pain and suffering should be denied. Id.; Pierre v. Lallie Kemp Charity Hosp., 515 So.2d 614, 619 (La.App. 1 Cir.), writ denied, 515 So.2d 1111 (La.1987).

Whether the decedent actually suffered is a factual issue to be reviewed under the manifest-error standard. Etcher v. Neumann, 00-2282, p. 16 (La.App. 1 Cir. 12/28/01), 806 So.2d 826, 840, writ denied, 02-0905 (La.5/31/02), 817 So.2d 105; Samuel, 798 So.2d at 130. The two-part test for the appellate review of a factual finding is: 1) whether there is a reasonable factual basis in the record for the finding of the trial court, and 2) whether the record further establishes that the finding is not manifestly erroneous. Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). Thus, if there is no reasonable factual basis in the record for the trial court’s finding, no additional inquiry is necessary. However, if a reasonable factual basis exists, an appellate court may set aside a trial court’s factual finding only if, after reviewing the record in its entirety, it determines the trial court’s finding was clearly wrong. See Stobart v. State, 617 So.2d 880, 882 (La.1993).

Sacco’s blood-alcohol content at the time of the accident, as determined by autopsy, was .225. Boudreaux testified that he was the first person out of the car when it landed in the canal. Sacco was unconscious in the back seat, lying down with his whole body in the water. He tried to get Sacco out of the back seat, but both Sacco’s door and seatbelt were stuck. He then got Allred out. Allred helped him get the back door and Sacco’s seatbelt unstuck and pull Sacco up the bank of the canal. Sacco had no pulse at first, but Allred performed CPR on Sacco, and Sacco started breathing — or “gargling,” as Boudreaux described it. Boudreaux testified Sacco was never conscious; he never spoke or exhibited any reactions with his eyes.

Allred testified he gave Sacco CPR in the backseat of the car, while still in the water. He said Sacco coughed up some water, and he propped Sacco up so he would not fall back into the water. He went out a window of the car and then with Boudreaux’s help got the car door open and got Sacco out. He testified that during the 20 to 30 minutes before help arrived, Sacco was breathing.

liaHarbor Policeman Randy J. Chiasson was the first law enforcement officer to arrive at the scene. He testified that Sacco was “kind of breathing” and “gasping for air.” He described Sacco as “semiconscious” because “his eyes kept opening and staying closed for a certain amount of time.”

Wayne J. Bourg, a certified paramedic, arrived at the scene at 12:20 a.m., approximately 25 minutes after the accident. He testified Sacco was unresponsive, had no pulse, and was not breathing when he arrived. Sacco’s medical records from Lady of the Sea General Hospital show Sacco had no pulse, blood pressure, or respiration when he arrived, his skin was icy cold and pale, and his pupils were fixed and dilated. Dr. William W. Crenshaw, the family doctor who pronounced Sacco dead at Lady of the Sea, testified Sacco had a large laceration to his right frontal area, there was nothing to indicate Sacco was alive when he saw him, and he “certainly could have been dead at the scene.”

After considering all the evidence, we find that a reasonable factual basis exists for the trial court’s finding that Sacco did not consciously suffer as a result of the accident and that this finding was not clearly wrong.

Wrongful-death damages

Plaintiff contends the wrongful death damages awarded by the trial court are inadequate. Much discretion is left to the trial judge in the assessment of general damages. LSA-C.C. art. 2324.1; Metrejean v. Prudential Ins. Co., 98-2170, p. 12 (La.App. 1 Cir. 11/5/99), 761 So.2d 1, 9. The correct standard for appellate review of a damage award is clear abuse of discretion. Theriot v. Allstate Ins. Co., 625 So.2d 1387, 1340 (La.1993). That discretion is vast and should rarely be disturbed unless it is, in either direction, beyond that which a reasonable trier of fact could assess under the particular circumstances. Hae Woo Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994).

Sacco was 37 years old at the time of his death. Plaintiff, Sacco’s father, lived in Pensacola, Florida. Sacco moved from Pensacola to Louisiana to work in the oil fields about five years before his death. He would work a month or so and then have a week off, |uand he returned to Pensacola approximately once a month. Sacco had gotten into trouble a few times because of his drinking, and he had to return to Pensacola every 30 days because he was on probation. He would ride a bus to Pensacola, and his father or brother would pick him up at the bus station and take him to a motel. Sacco stayed in a motel while in Florida because he often had rowdy friends with him who liked to party all night, and plaintiff had to get up early for work.

During the week that he was home each month, Sacco would visit his father two or three times. He would do his laundry at plaintiffs house, and sometimes they went shopping or went out to eat. Plaintiff testified he and his son had a good relationship. Sacco’s younger brother Mark testified that four years after the accident his father was still affected by Sacco’s death.

While $50,000.00 for the loss of a major son with whom a parent had a good relationship may be on the low side, we do not find that it was an abuse of the trial court’s vast discretion.

CONCLUSION

For the foregoing reasons, we reverse the portion of the trial court’s judgment that finds Picou and Golden Meadow were 50% at fault. We amend that portion of the trial court judgment to assess 100% fault to Don Allred. We hereby render judgment in favor of Picou and Golden Meadow, dismissing plaintiffs demands against them at plaintiffs costs. We also affirm the portion of the judgment that declines to award survival damages and assesses general damages for wrongful death at $50,000.00. All costs of this appeal are assessed to plaintiff.

REVERSED IN PART, AMENDED IN PART, AFFIRMED IN PART, AND RENDERED.

      . The judgment was rendered in favor of plaintiff but did not name the defendants. In their answer, Golden Meadow and Picou appeared and stated they were “redundantly named within the Petition as the Town of Golden Meadow, the Town of Golden Meadow Police Department, and the Chief of Police in his official capacity.”

      . Chief Adams testified that policy was in effect when he became employed by the GMPD in 1976 and was still in effect as of the date of trial. Adams testified there are two main reasons for this policy. First, the GMPD has only three police officers; they work solo shifts. A DWI arrest would take the town’s only officer off the street for a considerable period of time. The officer would have to take the accused to the parish courthouse in Thibodaux because Golden Meadow cannot prosecute for DWI.
      The other reason is financial. According to Adams, Golden Meadow cannot afford to buy an intoxilyzer, keep it calibrated; and send its officers for training in its use. The trial court implied in written reasons that the town has a financial incentive to prosecute for ROMV instead of DWI because fines for ROMV tickets pad the Golden Meadow treasury, whereas it receives no financial benefit from a DWI prosecution by the parish. Joint stipulations at the trial, however, showed that the town receives the insignificant sum of approximately $1,200.00 per year from ROMV tickets with "alcohol involvement.” (The parties stipulated that from 1995 to 1997, GMPD issued 28 citations for ROMV with the notation that alcohol was involved. The town receives $130.00 from each ticket.)
      George J. Armbruster, Jr., testified as defendants' expert in police procedures. Armbrus-ter stated that when an officer encounters a drunken driver, his primary responsibility is to "get the drunk off the road.” There are many ways to accomplish that objective. Arrest for DWI would be the preferred course of action if departmental policy allowed it. Armbruster testified that during his four and one-half years teaching at the Regional Police Academy, he taught students from small police departments that had policies against making DWI arrests. He taught those students to keep the impaired person off the highway while following departmental policy. Under questioning by the trial judge, Arm-bruster stated:
      [T]he officer, in my opinion, is obligated to take some action to make sure that person does not operate that vehicle again if he believes that person is impaired.... [T]he safety of life and limb is his primary concern at that time. How he accomplishes that may take place in different ways.

      . Griffin testified that because of her own height, 6', she tends to notice tall men. All-red is 6'9" tall.

      . The award of $25,000.00 in exemplary damages was not appealed and is thus final.


source: Caselaw Access Project

author: LPER CURIAM.

license: Public Domain

text:
    Terry RYDER v. ROWAN COMPANIES, INC.
    No. 2002 CW 2235.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 26, 2003.
    Edward E. Roberts, III, Alexandria, Counsel for Plaintiff/Relator Terry Ryder.
    M. Blake Monrose, Lafayette, Counsel for Defendant/Respondent.
    Before: CARTER, C.J., WHIPPLE and KUHN, JJ.
   LPER CURIAM.

The issue before the Court in this writ application is whether an employer may be considered the claimant under LSA-R.S. 23:1310.4 and choose the situs of the necessary hearings. We grant the application for the following reasons.

Terry Ryder was allegedly injured on or about September 27, 2001, while working as a floor hand for Rowan Companies, Inc. (Rowan). After the accident, Ryder, through his attorney, advised Rowan of a claim for workers’ compensation benefits. However, before Ryder filed a formal claim for compensation or received any benefits, Rowan filed an LDOL-WC-1008 Disputed Claim for Compensation on July 24, 2002, in the Office of Workers’ Compensation, District 9, Houma, Louisiana.

Thereafter, Ryder filed a declinatory exception raising the objection of improper venue and a motion to transfer. Ryder argues, as he did below, that the use of “claimant” in Section A of LSA-R.S. 23:1310.4 refers to the employee, not the employer, and thus, as the employee he is the proper “claimant” to elect the situs of the necessary hearings. After a hearing, the Office of Workers’ Compensation Judge, relying on Hearing Rule 5501.B(1), found that because Rowan as claimant/employer elected the situs of its principal place of business in St. Mary Parish as venue, venue is proper in the District 9, Southern Division, Office of Workers’ Compensation.

Louisiana Revised Statute 23:1310.4, which governs the place workers’ compensation proceedings are to be held, provides:

A. (1) At the time a claim is initiated with the director, the claimant shall elect the situs of necessary hearings by the workers’ compensation judge.
(2) If the claimant is a domiciliary of the state of Louisiana, he shall be required to elect either the judicial district of the parish of his domicile at the time he sustained his injury, the judicial district of the parish where the injury occurred, or the judicial district of the parish of the principal place of business of the employer.
(3) In the event that the claimant is not a domiciliary of the state of Louisiana, the necessary hearings shall be held in the judicial [¡¡district of the parish of the principal place of business of the employer, provided, that if the injury occurred within the state, the hearings shall be held in the judicial district of the parish where the injury occurred.
(4)In the event the claimant is not a domiciliary of the state of Louisiana and the accident resulting in injury occurred outside the territorial limits of the state, the hearings shall be held in the judicial district of the parish in this state wherein the contract of employment was made or in which the employment was principally localized.
B. After the election has been made as provided above, all future hearings affecting the claimant’s case shall be held in the judicial district so designated unless the workers’ compensation judge, upon agreement by the claimant and the employer, shall transfer such cause for hearing to any other judicial district agreed upon. In addition, hearings may be held in any location if the workers’ compensation judge determines that good cause has been shown.

The Third Circuit, in Western Southern v. Lafleur, 99-810, pp. 3-4 (La.App. 3 Cir. 11/3/99), 746 So.2d 254, 256, writ denied, 99-3387 (La.2/4/00), 754 So.2d 233, in addressing this issue, cited Edwards v. Daugherty, 97-1542 (La.App. 3 Cir. 3/10/99), 729 So.2d 1112, writs denied, 99-1393 & 99-1434 (La.9/17/99), 747 So.2d 1105, wherein the Court explained the law applicable to the interpretation of statutes:

In interpreting a statute, we must “consider all parts together, giving effect to all parts, if possible, and not construing as surplusage any sentence, clause or word, if a construction can be legitimately found which will give meaning to and preserve all the words of the statute.” Perkins v. State Bd. of Elementary and Secondary Educ., 562 So.2d 930, 932 (La.App. 1 Cir.), writ denied, 565 So.2d 448 (La.1990). The legislature is never presumed to have inserted “superfluous, useless and meaningless words, sentences, phrases, or clauses in its enactments.” Colwell v. State, Through Office of Atty. Gen. Of Louisiana, 506 So.2d 941, 944 (La.App. 1 Cir.), writ denied, 508 So.2d 89 (La.1987).

We agree. A reading of LSA-R.S. 23:1310.4 in its entirety indicates the word “claimant” refers to the employee, not the employer, no matter who filed the WC-1008. To hold that “claimant” means anyone other than the employee in §§ A(2), (3) and (4) and particularly § B would cause separate references to “claimant” and “employer” in those sections, and the phrase “claimant and the employer” in § B of the statute would be confusing and lead to constructions that would not give meaning to and preserve all the words of the statute. Moreover, LSA-R.S. |423:1310(A), cited by Rowan, does not use the term claimant and should be read in conjunction with LSA-R.S. 23:1310.4 in order to determine “the district office where the hearing will be held.” Herein, the employer selected a site provided under LSA-R.S. 23:1310.4(A)(2); however, since the employee is the “claimant” under the provision, he is the one who selects the site pursuant to LSA-R.S. 23:1310.4(A)(1).

The claimant in the context of determining the situs of necessary hearings is the employee, and his designation is controlling. Therefore, the Office of Workers’ Compensation Judge’s ruling of September 24, 2002, hereby is reversed, and judgment is entered in favor of Terry Ryder. This matter is remanded to the Office of Workers’ Compensation, District 9, in order for this matter to be transferred to the proper venue consistent with this ruling. See LSA-R.S. 23:1310.4; Western Southern v. Lafleur, 99-810 (La.App. 3 Cir. 11/3/99), 746 So.2d 254, writ denied, 99-3387 (La.2/4/00), 754 So.2d 233.

WRIT GRANTED AND MADE PEREMPTORY; REMANDED WITH ORDER.


author: ^CLAIBORNE, J.

text:
    STATE of Louisiana v. Jerry L. HAYES.
    No. 2002 KA 1268.
    Court of Appeal of Louisiana, First Circuit.
    March 5, 2003.

      Walter P. Reed, District Attorney, Cov-ington, Dorothy Pendergast, Special Appeals Counsel, Metairie, Counsel for Plaintiff-Appellee State of Louisiana.
    Frank Sloan, Mandeville, Counsel for Defendant-Appellant Jerry L. Hayes.
    Before: PARRO, MCDONALD and CLAIBORNE, JJ.

      . Judge Ian W. Claiborne, retired, is serving as judge pro tempore by special assignment of the Louisiana Supreme Court.

   ^CLAIBORNE, J.

The defendant, Jerry L. Hayes, was charged by bill of information with theft, a violation of La. R.S. 14:67. He entered a plea of not guilty. After a trial by jury, the defendant was found guilty as charged. Upon the denial of motions for a new trial and for post verdict judgment of acquittal, the defendant was adjudicated a third felony offender on March 21, 1997, under the provisions of La. R.S. 15:529.1. Accordingly, he was sentenced to life imprisonment at hard labor, without the benefit of parole, probation, or suspension of sentence. On appeal, we affirmed the conviction and habitual offender adjudication. We, however, vacated the sentence and remanded the ease to the district court for resentenc-ing based on defense counsel’s ineffectiveness in failing to object to a constitutionally excessive sentence. See State v. Hayes, 97-1526, pp. 3-7 (La.App. 1st Cir.5/15/98), 712 So.2d 1019, 1021-23. The state applied for a writ of certiorari. The Louisiana Supreme Court granted the writ and remanded the case to us for reconsideration. State v. Hayes, 98-1603 (La.12/11/98), 729 So.2d 584. After reconsideration of that assignment of error, using State v. Johnson, 97-1906 (La.3/4/98), 709 So.2d 672, as a guide, we again vacated the sentence, and remanded for resentenc-ing. State v. Hayes, 97-1526R, p. 4 (La.App. 1st Cir.6/25/99), 739 So.2d 301, 304. The Louisiana Supreme Court denied the state’s application for a writ of certiorari. State v. Hayes, 99-2136 (La.6/16/00), 764 So.2d 955. On resentencing, the trial court sentenced the defendant to thirty years at hard labor without the benefit of parole, probation, or suspension of sentence. The defendant’s motion for reconsideration of sentence was denied. The defendant now appeals, urging that the sentence imposed upon resentencing is excessive. We affirm.

FACTS

The facts of the instant offense are set out in detail in State v. Hayes, 97-1526 at pp. 2-3, 712 So.2d at 1020.

ASSIGNMENT OF ERROR

In the sole assignment of error, the defendant contends that the sentence imposed by the trial court at resentencing is excessive. He avers that the sentence should be reconsidered in light of the ameliorative changes in La. R.S. 15:529.1.

a Both the United States and Louisiana Constitutions prohibit the imposition of excessive or cruel punishment. U.S. Const. amend. VIII; La. Const, art. I, § 20. A sentence is constitutionally excessive, even if it is within the statutory limits, if it is grossly disproportionate to the severity of the offense or is nothing more than the needless and purposeless imposition of pain and suffering. State v. Telsee, 425 So.2d 1251, 1253 (La.1983). If the trial judge finds that an enhanced punishment mandated by the Habitual Offender Law, La. R.S. 15:529.1, makes no “measurable contribution to acceptable goals of punishment” or that the sentence amounts to nothing more than “the purposeful imposition of pain and suffering” and is “grossly out of proportion to the severity of the crime,” the trial judge has the option and duty to reduce such sentence to one that would not be constitutionally excessive. State v. Dorthey, 623 So.2d 1276, 1280-81 (La.1993). To determine whether a penalty is excessive, we must determine whether the penalty is so grossly disproportionate to the severity of the crime as to shock our sense of justice. State v. Bonanno, 384 So.2d 355, 358 (La.1980).

The sentencing range for the underlying offense, theft when the misappropriation or taking amounts to a value of five hundred dollars or more, is imprisonment with or without hard labor for not more than ten years and/or a fine of not more than three thousand dollars. La. R.S. 14:67 B. The underlying offense occurred between September 5, 1996, and September 13, 1996. The defendant’s two predicate offenses consist of simple robbery, a violation of La. R.S. 14:65, and forgery, a violation of La. R.S. 14:72. In accordance with the habitual offender statute in effect at the time of the adjudication as a multiple offender, the defendant was subject to a mandatory sentence of life imprisonment and received such mandated sentence.

Upon appeal, we determined that a sentence of life imprisonment for this defendant, at his age and with his record, was disproportionate to the harm done and shocks one’s sense of justice. State v. Hayes, 97-1526 at p. 6, 712 So.2d at 1022. We concluded that all of the defendant’s offenses combined cannot support a loss of liberty, at age 34, for the rest of his life. We held, considering the seriousness of defense counsel’s failure to object to the life sentence at sentencing and the prejudice suffered as a result — the denial of a constitutionally fair sentence and the right to appeal a life sentence — ’that the defendant established ineffective assistance of counsel. State v. Hayes, 97-1526 at pp. 6-7, 712 So.2d at 1022-1023. On reconsideration, we again found a life imprisonment sentence to be excessive in this instance and concluded that a severe sentence, for example, between twenty and forty years, would have met all of the societal goals of incarceration. State v. Hayes, 97-1526R at p. 4, 739 So.2d at 303. We noted that although the instant crime, theft of approximately $1000, is a serious offense, the defendant admitted the thefts and returned what was left of the money, $693. State v. Hayes, 97-1526R at p. 3, 739 So.2d at 303. We found clear and convincing evidence that this “defendant is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case.” State v. Hayes, 97-1526R at p. 3, 739 So.2d at 303, citing State v. Young, 94-1636, pp. 5-6 (La.App. 4th Cir.10/26/95), 663 So.2d 525, 531 (Plotkin, J., concurring), writ denied, 95-3010 (La.3/22/96), 669 So.2d 1223.

At resentencing, the trial court referred back to its previous findings concerning the defendant’s record, the pre-sentence investigation, and considerations under La. Code Crim. P. art. 894.1. The trial court then imposed a sentence of thirty years imprisonment at hard labor without benefit of parole, probation, or suspension of sentence.

In 2001 La. Acts, No. 403, § 2, effective June 15, 2001, the Legislature amended La. R.S. 15:529.1 to require a life sentence for a third felony offender only if the third felony and both of the predicate offenses were crimes of violence, certain sex offenses, drug offenses punishable by more than ten years, or any other crimes punishable by more than twelve years. The defendant notes that under the present law, the sentencing range for his conviction and multiple offender adjudication would be six years and eight months to twenty years imprisonment. However, the Legislature expressly stated the amendment was to be applied prospectively. The defendant’s adjudication as a multiple offender occurred prior to the amendment’s effective date and, thus, the amendment is inapplicable to this case. See State v. Parker, 02-1477 (La.App. 1st Cir. 3/5/03), 845 So.2d 546, decided this date. We also note that the defendant’s habitual offender proceeding and resentencing also occurred prior to the amendment’s effective date.

We do not find the sentence imposed upon resentencing to be unconstitutionally excessive. This particular sentence is tailored to the defendant’s culpability, the gravity |5of the offense, and the circumstances of this case. This assignment of error is without merit. We affirm the sentence imposed upon the defendant.

SENTENCE AFFIRMED.

      . The defendant’s resentencing took place on October 20, 2000, many months prior to the effective date of the amendments to La. R.S. 15:529.1.


author: | ¡.PARRO, J. | MCDONALD, J.

text:
    STATE of Louisiana v. Danny PARKER.
    No. 2002 KA 1477.
    Court of Appeal of Louisiana, First Circuit.
    March 5, 2003.

      Walter P. Reed, District Attorney, Cov-ington, Dorothy A. Pendergast, Special Appeals Counsel, Metairie, for Appellee State of Louisiana.
    Frank Sloan, Louisiana Appellate Project, Mandeville, for Defendant-Appellant Danny Parker.
    Before: PARRO, MCDONALD, and CLAIBORNE, JJ.

      . Judge Ian W. Claiborne, retired from the Eighteenth Judicial District Court, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

   | ¡.PARRO, J.

The defendant, Danny Parker, was charged by bill of information in count one with possession of a Schedule III controlled dangerous substance (dihydroco-deinone), a violation of LSA-R.S. 40:968(C), and in count two with possession of a Schedule IV controlled dangerous substance (diazepam), a violation of LSA-R.S. 40:969(0(2). See also LSA-R.S. 40:964 (composition of schedules). He pled not guilty on both counts. Following a jury trial, he was found guilty as charged on both counts.

Thereafter, the state filed a habitual offender bill, alleging with respect to count two that the defendant was a third felony habitual offender, having previously pled guilty to aggravated battery, a violation of LSA-R.S. 14:34, and having previously been convicted of distribution of cocaine, a violation of LSA-R.S. 40:967. Following a hearing, the trial court adjudged the defendant to be a third felony habitual offender in regard to count two. The defendant moved for a new trial and for post-verdict judgment of acquittal, but the motions were denied. On count one, the defendant was sentenced to five years at hard labor to run concurrently with the sentence imposed on count two. On count two, the defendant was sentenced to life imprisonment at hard labor without benefit of probation or suspension of sentence.

On appeal, this court affirmed the convictions for counts one and two, and the sentence for count one, but vacated the habitual offender adjudication and sentence and remanded for further proceedings. State v. Parker, 00-2861 (La.App. 1st Cir. 11/9/01), 818 So.2d 85.

Following a hearing on remand, the defendant was again adjudged a third felony habitual offender on count two and sentenced to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. He objected to the sentence on count two as being excessively severe and referred to changes in the habitual offender law since the time of his third felony offense and conviction, but prior to his re-adjudication as a habitual offender. He now appeals, designating two | ¡¡assignments of error. We affirm the habitual offender adjudication, vacate the habitual offender sentence, and remand for re-sentencing.

ILLEGAL SENTENCE

In assignment of error number one, the defendant contends the sentence imposed on count two was illegally excessive. He argues he should have been sentenced under the habitual offender law in effect at the time of his adjudication as a third felony habitual offender. We agree.

Prior to amendment by 2001 La. Acts, No. 403, § 2 (Act 403), LSA-R.S. 15:529.1, in pertinent part, provided:

A. (1) Any person who, after having been convicted within this state of a felony... thereafter commits any subsequent felony within this state, upon conviction of said felony, shall be punished as follows:
* * *
(b) If the third felony is such that upon a first conviction, the offender would be punishable by imprisonment for any term less than his natural life then:
(ii) If the third felony or either of the two prior felonies is a felony defined as a crime of violence under R.S. 14:2(13) or as a violation of the Uniform Controlled Dangerous Substances Law punishable by imprisonment for more than five years or any other crime punishable by imprisonment for more than twelve years, the person shall be imprisoned for the remainder of his natural life, without benefit of parole, probation, or suspension of sentence, (emphasis added).

Following amendment by Act 403, LSA-R.S. 15:529.1, in pertinent part, provided:

A. (1) Any person who, after having been convicted within this state of a felony... thereafter commits any subsequent felony within this state, upon conviction of said felony, shall be punished as follows:
* * *
(b) If the third felony is such that upon a first conviction, the offender would be punishable by imprisonment for any term less than his natural life then:
* * *
|4(ii) If the third felony and the two prior felonies are felonies defined as a crime of violence under R.S. 14:2(13), a sex offense as defined in R.S. 15:540 et seq. when the victim is under the age of eighteen at the time of commission of the offense, or as a violation of the Uniform Controlled Dangerous Substances Law punishable by imprisonment for ten years or more, or any other crimes punishable by imprisonment for twelve years or more, or any combination of such crimes, the person shall be imprisoned for the remainder of his natural life, without benefit of parole, probation, or suspension of sentence, (emphasis added).

The effective date of Act 403 was June 15, 2001, and it stated, “[t]he provisions of this Act shall only have prospective effect.” 2001 La. Acts, No. 403, § 6. Count two, the third felony upon which the habitual offender bill and adjudication were based, was committed on March 25, 1997, and Parker was convicted of that offense on February 25, 1999. He was originally adjudicated a third felony habitual offender on July 27, 1999, and was originally sentenced on August 3,1999. After the habitual offender adjudication and sentence were vacated by this court, he was re-adjudicated a third felony habitual offender and was re-sentenced on March 4, 2002.

The sentence imposed on Parker, life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence, was pursuant to the pre-amendment version of LSA-R.S. 15:529.1(A)(l)(b)(ii). Under those provisions, the fact that one of his prior felony convictions was for aggravated battery, which is a felony defined as a crime of violence under LSA-R.S. 14:2(13), sufficed for imposition of that sentence. After the amendment, however, all of the three felonies must rise to the level of either a crime of violence, a sex offense against a victim under the age of eighteen, a drug offense punishable by at least ten years of imprisonment, or another crime punishable by imprisonment for twelve years or more. LSA-R.S. 15:529.1(A)(l)(b)(ii). Parker’s third felony, which triggered the filing of the habitual offender bill, does not rise to that level; possession of a Schedule IV controlled dangerous substance other than flunitrazepam is not punishable by ten years of imprisonment, but is punishable by not more than five years of imprison-merit. See LSA-R.S. 40:969(C)(2). Under the | .^amended habitual offender law, the applicable sentencing provision for Parker would be LSA-R.S. 15:529.1(A)(l)(b)(i).

In State v. Sugasti, 01-3407 (La.6/21/02), 820 So.2d 518, the Louisiana Supreme Court examined whether the provisions of 2001 La. Acts, No. 403, § 4, which reduced the penalty for possession of heroin, a violation of LSA-R.S. 40:966(0(1), should be applied to offenses committed prior to the effective date of the statute, even though the defendant was sentenced after the effective date of the statute. In answering this inquiry, the court reiterated its consistent holding that the law in effect at the time of the commission of the offense is determinative of the penalty which the convicted accused must suffer. Sugasti, 820 So.2d at 520-21.

That legal principle and its application in the Sugasti case are unassailable. However, the case before us differs from Sugasti in significant ways. In the case we are reviewing, the statute that has been amended does not impose a sentence for a particular offense. Rather, the statute we are considering is the habitual offender law, which is a penalty enhancement statute. Under its provisions, there is no one offense that is determinative of the penalty, but a combination of offenses that must meet certain statutory criteria. Additionally, a defendant is not a habitual offender simply by virtue of committing a third felony offense. A defendant could commit dozens of qualifying felony offenses and never have a sentence enhanced under the habitual offender law.

Unless and until a separate bill of information is filed by the district attorney after the defendant’s felony conviction, there will never be a finding of habitual offender status to justify the enhanced penalty pursuant to the statute. See LSA-R.S. 15:529.1(D)(l)(a). A defendant does not become a habitual offender until the following sequence of events occurs: the filing of a bill of information; an appearance before the court; a contradictory hearing, if necessary; the presentation of evidence on which the district attorney bears the burden of proof beyond a reasonable doubt on any issue of fact; and either a finding by the court |fithat he has been convicted of a prior felony or felonies or the defendant’s acknowledgment or confession in open court, after being duly cautioned as to his rights, that he has been so convicted. See LSA-R.S. 15:529.1(D)(l)(a) and (b), (D)(2), and (D)(3). The statute is very clear that it is only “when the judge finds” that the defendant has been convicted of a prior felony or felonies or the defendant acknowledges such status that the court “shall sentence him to the punishment prescribed in this Section.” See LSA-R.S. 15:529.1(D)(3). Until that finding or acknowledgment occurs, the defendant is not a habitual offender and, therefore, is not subject to the punishment “prescribed in this Section.” However, upon such finding or acknowledgment, the defendant is subject to the punishment “prescribed in this Section,” as of that date, not under provisions pre-dating that finding. This reading of the statutory provisions fully accords with the legislature’s statement that the amendments to LSA-R.S. 15:529.1 in 2001 La. Acts, No. 403, § 6 “shall only-have prospective effect.” Stated another way, the amended provisions are applicable only to those defendants who are found to be habitual offenders after the effective date of the amendments.

This application of the habitual offender statute is consistent with the decision of the Louisiana Supreme Court in State v. Mayeux, 01-3195 (La.6/21/02), 820 So.2d 526, which was rendered on the same day as the Sugasti decision. Mayeux dealt with the fact that the penalty for fourth-offense driving while intoxicated, a violation of LSA-R.S. 14:98, had been reduced by 2001 La. Acts, No. 1163, § 2. The supreme court in Mayeux determined that the operative date for the applicability of that reduction in penalty was not the date of the offense, but rather was the date of the conviction. Mayeux, 820 So.2d at 527. In reaching this conclusion, the court first noted that the text of LSA-R.S. 14:98 provided for sentencing “upon conviction” of the offense, not “upon committing the offense.” Mayeux, 820 So.2d at 529. The court also noted that the specific statement of legislative purpose, set forth in LSA-R.S. 14:98(G), indicated the legislature favored |7treatment measures over incarceration for third or subsequent violations of the statute. Mayeux, 820 So.2d at 529.

Like Mayeux, the language of paragraph D(3) of the habitual offender law provides that the court shall sentence the defendant to the punishment prescribed in the habitual offender law- “when the judge finds” that the defendant has been convicted of a prior felony or felonies, not as of the date the prior felony or felonies were committed. Secondly, the preamble to Act 403 clearly stated the legislative purpose was “to reduce the length of incarceration in the penalty provisions for certain offenses[J” The habitual offender law is a penalty enhancement provision; therefore, the application of its amended provisions to those for whom the adjudication of that status occurs after its effective date would effectuate this legislative purpose.

Generally, the application of an amended penalty provision, rather than the penalty provision as it existed when the offense was committed, requires consideration of the Louisiana and United States constitutional provisions prohibiting ex post facto laws. U.S. Const. art. I, § 9, cl. 3; LSA-Const. art. I, § 23. This prohibition extends to the retrospective application of any enactment which changes the punishment to inflict a greater penalty than that authorized for the crime at the time of its commission. See State v. Ellison, 572 So.d 262, 267 n. 2 (La.App. 1st Cir.1990), writ denied, 575 So.2d 388 (La.1991); see also State ex rel. Olivieri v. State, 00-0172, 00-1767 (La.2/21/01), 779 So.2d 735, 743-44. In essence, for purposes of the prohibition against ex post facto laws, the date of the commission of the crime determines the maximum penalty for the underlying crime and the maximum penalty pursuant to the habitual offender law. Under our interpretation of the habitual offender law, the enhanced penalty provision in effect on the date of the determination of habitual offender status is to be applied, because that is “when the judge |sfinds” that the defendant is subject to the penalty. However, when such enhanced penalty provision authorizes the imposition of a penalty greater than that permitted under the law in effect on the date the crime was committed, the ex post facto law prohibition precludes the application of the increased penalty provision. When, as in this case, the amendment to the habitual offender law reduces the applicable penalty, the application of the amended provision, rather than the provision in effect when Parker’s third felony offense was committed, does not implicate the constitutional prohibition of ex post facto laws. Therefore, in this situation, the law should be applied as written, giving a strict interpretation to the operative date of the habitual offender adjudication.

CONCLUSION

We conclude, therefore, that the punishment to be imposed on Parker as a habitual offender should be pursuant to the amended provisions of the habitual offender law that were in effect when the judge found him to be a habitual offender. Accordingly, the habitual offender sentence imposed in this case is vacated, and this matter is remanded for re-sentencing in accordance with the views expressed herein. Due to our resolution of this assignment of error, we pretermit consideration of Parker’s second assignment of error contending the sentence imposed was excessive under the constitutions of Louisiana and the United States.

HABITUAL OFFENDER ADJUDICATION AFFIRMED, SENTENCE VACATED, AND REMANDED FOR RE-SENTENCING.

MCDONALD, J., dissents and assigns reasons.

| MCDONALD, J.

dissenting.

I respectfully dissent and would affirm the judgment of the trial court. The Habitual Offender Statute in effect at the time of the commission of the third offense is the one that should control the sentence. Thus, the trial court was correct in its application of the statute in effect on March 25,1997.

In State v. Sugasti, 01-3407 (La.6/21/02), 820 So.2d 518, the Louisiana Supreme Court examined whether the provisions of 2001 La. Acts, No. 403, § 4, that reduced the penalty for possession of heroin in violation of LSA-R.S. 40:966(0(1), should be applied to offenses committed prior to the effective date of the statute, even though the sentencing was after its effective date. The court held the sentencing changes enacted by Act 403 did not apply to anyone sentenced after the effective date of the act if the offense was committed prior to its effective date. Those who engage in criminal activity must face the consequences of their actions, including the penalty provisions that apply as of the date of the offense. Sugasti, 01-3407, 820 So.2d at 522.

State v. Mayeux, 01-3195 (La.6/21/02), 820 So.2d 526, was rendered on the same day as Sugasti, and may seem to reach an opposite conclusion. The case | ¡/involved the reduction in the penalty for fourth-offense driving while intoxicated as provided by 2001 La. Acts, No. 1163, § 2. The court found that the operative date for the application of the reduced penalty was the date of conviction of the offense rather than the date of its commission. Mayeux, 820 So.2d at 527. However,' the court based its decision on the language found in the statute. Louisiana Revised Statute 14:98 (as amended by Act 1163) provides for sentencing “upon conviction” of the offense, not “upon committing” the offense. Mayeux, 820 So.2d at 529.

However, unlike the sentencing provision in LSA-R.S. 14:98, the multiple offender proceeding does not charge a new crime; it is merely a method of increasing the punishment for the subsequent offender. The sentence is more severe for the new crime because he is a habitual offender. State v. Davis, 01-123 (La.App. 5 Cir. 7/30/01), 792 So.2d 126, 129. The offender is treated as a recidivist and is subjected to a longer sentence for the instant crime because he continues to break the law. State v. Dillion, 99-2175 (La.App. 4 Cir.9/6/00), 770 So.2d 13, 20, writ denied, 00-2815 (La.9/14/01), 797 So.2d 50; State v. Hannon, 98-0957 (La.App. 4 Cir. 5/26/99), 736 So.2d 323, 328, writ denied, 99-1911 (La.12/17/99), 751 So.2d 872. Thus, the sentence reverts back to the date of commission of the offense that is the basis for the habitual offender charge.

In his second assignment of error the defendant contends that the sentence imposed on count two was excessive. He argues that this court should vacate the sentence imposed and remand the matter to the trial court to reconsider in light of the changes to LSA-R.S. 15:529.1. This court previously considered this issue in State v. Hayes, 97-1526 (La.App. 1 Cir. 6/25/99), 739 So.2d 301, writ denied, 99-2136 (La.6/16/00), 764 So.2d 955, which outlined the criteria in State v. Johnson, 97-1906 (La.3/4/98), 709 So.2d 672, and State v. Dorthey, 623 So.2d 1276 (La.1993), which should be considered by the trial judge to depart downward from the mandatory minimum sentences in the habitual offender law. Parker was originally sentenced on August 3, 1999. It is evident that the court [¡¡considered the criteria in Johnson and Dorthey in imposing the sentence. The court stated:

The defendant having been found to be a third felony offender and having already dealt with the objection or the claim under Dorthea [sic], State versus Dor-thea [sic], and I found in my ruling on July 27 that the Court in reviewing this defendant’s record and the presentence investigation and all matters concerning this matter does not find this to be one of those rare occasions or rare situations in which a downward departure is required constitutionally and refer to State Versus Johnson, 709 So.2d 672. There is no clear, convincing evidence warranting a downward departure from the sentencing mandate in this particular case.

For these reasons the habitual offender adjudication should be affirmed and the sentence affirmed.

      . We note also that the other offense for which Parker was convicted, possession of a Schedule III controlled dangerous substance, dihydrocodeinone, was also punishable by not more than five years of imprisonment. See LSA-R.S. 40:968(C).

      . “The person shall be sentenced to imprisonment for a determinate term not less than two-thirds of the longest possible sentence for the conviction and not more than twice the longest possible sentence prescribed for a first conviction[.]” LSA-R.S. 15:529. l(A)(l)(b)(i).

      . "The legislature hereby finds and declares that conviction of a third or subsequent DWI offense is presumptive evidence of the existence of a substance abuse disorder in the offender posing a serious threat to the health and safety of the public. Further, the legislature finds that there are successful treatment methods available for treatment of addictive disorders.” LSA-R.S. 14:98(G).

      . As such, the rule of strict construction of a penal statute applies to its interpretation and application. Furthermore, any genuine ambiguity must be interpreted in favor of the defendant. State v. Boowell, 406 So.2d 213 (La.1981).

      . In so doing, we reject the contrary conclusions in State v. O’Neal, 36,431 (La.App. 2nd Cir. 10/23/02), 830 So.2d 408, 414, writ denied, 01-3207 (La.11/1/02), 828 So.2d 564; State v. Wilson, 02-700 (La.App. 3rd Cir.12/18/02), 833 So.2d 560; State v. Bagneris, 02-0773 (La.App. 4th Cir.10/16/02), 830 So.2d 1047, 1050-51; and State v. Ventress, 01-1165 (La.App. 5th Cir.4/30/02), 817 So.2d 377, none of which addressed the operative date of the habitual offender adjudication that is stated in paragraph D(3) of the habitual offender law.


author: JgFOIL, J.

text:
    Webb WARTELLE and Prestige Home Service, A Division of American Home Shield Corporation v. LOUISIANA STATE BOARD OF HOME INSPECTORS.
    No. 2002 CA 0870.
    Court of Appeal of Louisiana, First Circuit.
    March 28, 2003.

      Sheri M. Morris, Baton Rouge, for Ap-pellees Plaintiffs Webb Wartelle and Prestige Home Service, A Division of American Home Shield Corporation.
    Albert J. Nicaud, Metairie, for Appellant Defendant Louisiana State Board of Home Inspectors.
    Panel composed of Judges FRANK FOIL, PAGE McCLENDON and WILLIAM F. KLINE, JR.

       Judge WILLIAM F. KLINE, Jr., Retired, serving Pro Tempore by special appointment of the Louisiana Supreme Court.

   JgFOIL, J.

The Louisiana State Board of Home Inspectors appeals from a judgment whereby the trial court concluded individuals employed by a home warranty company were not subject to the Louisiana Home Inspector Licensing Law. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Prestige Home Service offers home warranties to buyers and sellers of resale residential homes. Before offering a warranty, Prestige requires the prospective buyer or seller to obtain an inspection of certain appliances and fixtures in the residential home so that Prestige can determine if these items are eligible for warranty coverage.

In 1999, the Louisiana legislature enacted the Louisiana Home Inspectors Licensing Law, La. R.S. 37:1471 et seq., which mandates licensure and regulation of home inspectors. Thereafter, Prestige, through its regional manager, Webb Wartelle, filed a petition for declaratory relief with the Louisiana State Board of Home Inspectors seeking a declaration that the independent contractors it used to perform the home warranty eligibility inspections were not required to obtain home inspector licenses under the new law. After a hearing, the Board issued an order indicating that the Prestige inspectors were required to obtain licenses. Mr. Wartelle then filed a petition for judicial review of the Board’s order in district court. The district court reversed the Board’s order, and the Board appeals.

DISCUSSION

On appeal, the Board contends the district court erred in concluding the Prestige inspectors did not fall within the purview of the Home Inspectors Licensing Law. In related assignments of error, the Board argues the district court failed to consider certain provisions of the statute, misconstrued the purpose of the statute, and factually erred in concluding that the activities of the Prestige inspectors did not qualify as “home inspection” within the meaning of the statute.

|3When reviewing an administrative final decision, the district court functions as an appellate court. On review of the district court’s judgment, sitting in its appellate mode, this court owes no deference to the court’s factual or legal conclusions. Bless Home Health Agency v. Louisiana Department of Health and Hospitals, 99-0936 (La.App. 1 Cir. 5/22/00), 770 So.2d 780, 783. However, after a thorough review of the record, we conclude the trial court correctly characterized the business being conducted by the Prestige inspectors as falling outside the scope of the Home Inspectors Licensing Law. The trial court’s factual findings and legal conclusions are correct.

Accordingly, we affirm the trial court’s judgment and adopt its written reasons as our own, attaching a copy to this opinion. Costs of this appeal in the amount of $533.75 are assessed to the Louisiana State Board of Home Inspectors.

AFFIRMED.


author: I «DOWNING, J.

text:
    CITGO PETROLEUM CORPORATION v. STATE of Louisiana Through the DEPARTMENT OF REVENUE AND TAXATION and John N. Kennedy, in his Capacity as Secretary of Revenue and Taxation.
    No. 2002 CA 0999.
    Court of Appeal of Louisiana, First Circuit.
    April 2, 2003.
    Writ Denied June 27, 2003.

      Frank Simoneaux, Baton Rouge, Counsel for Plaintiff/Appellant CITGO Petroleum Corporation.
    Stephen Marx, Metairie, Counsel for Defendant/Appellee Department of Revenue and Taxation.
    Before: KUHN, DOWNING and GAIDRY, JJ.
   I «DOWNING, J.

CITGO Petroleum Corporation (CIT-GO) appeals an adverse judgment rendered pursuant to its and the Louisiana Department of Revenue and Taxation’s (Department’s) cross-motions for summary judgment. The judgment granted the Department’s motion for summary judgment and dismissed CITGO’s lawsuit with prejudice. The sole issue on this appeal is whether CITGO was entitled to claim income tax deductions and franchise tax credits for sums it paid to Calcasieu Parish pursuant to an agreement between CITGO and Calcasieu Parish to activate a Foreign Trade Zone. For the following reasons, we reverse the judgment of the trial court and render judgment in favor of CITGO.

FACTS AND PROCEDURAL HISTORY

On December 6, 1990, Calcasieu Parish adopted a resolution authorizing activation of a Foreign Trade Zone in which CITGO could operate a refinery and maintain inventory under favorable circumstances. Before Calcasieu Parish would agree to activate the Foreign Trade Zone, however, it required CITGO to agree to ensure that the Parish would not suffer a loss to its tax base as a result of the activation. Calca-sieu Parish agreed to activate the Foreign Trade Zone after CITGO gave the following assurances central to the decision of this matter:

CITGO Petroleum Corporation and Cit-Con Oil Corporation agree to maintain in their Ad Valorem tax base, an assessment value equal to the inventory assessment as reported for the assessment year 1990, as an “Additional Assessment.”

lüThe Foreign Trade Zone was activated on July 1, 1991. The tax years in dispute are 1992 and 1993. In its Louisiana 1992 income/1993 franchise tax return and in its 1993 income/1994 franchise tax return, CITGO claimed income tax deductions and tax credits for the sums it paid to Calca-sieu Parish pursuant to their agreement. The Department, however, denied these deductions and tax credits and assessed additional income and franchise taxes against CITGO in the amounts disallowed.

CITGO paid the additional tax under protest and filed the underlying lawsuit, seeking reimbursement of taxes it had paid. On cross-motions for summary judgment, the trial court granted the Department’s motion for summary judgment and denied CITGO’s motion for summary judgment. Judgment was signed accordingly, and CITGO appealed assigning one error, that the trial court erred as a matter of law in granting the Department’s motion for summary judgment and in denying its motion for summary judgment.

DISCUSSION

Characterization of CITGO’s Payments

Under the agreement between CITGO and Calcasieu Parish, the sums of money CITGO paid to Calcasieu Parish were tax payments for which CITGO should be allowed to claim income tax deductions and franchise tax credits.

The tax may or may not have been legally levied. CITGO may or may not be entitled to waive its federal exemption from ad valorem taxes. Payments in lieu of taxes may or may not be the same as taxes for state assessment purposes. We need not decide these issues here. What we do decide is the legal issue of whether Calca-sieu Parish was assessing and | ¿whether CITGO was paying ad valorem taxes for which it is entitled to claim state tax deductions and tax credits.

Whether a charge is a tax or not is “determined not by its title, but by its incidents, attributes and operational effect. Thus, the nature of a charge must be determined by its substance and realities, not its form.” Safety Net for Abused Persons v. Segura, 96-1978, p. 4 (La.4/8/97), 692 So.2d 1038, 1041. “A charge that has as its primary purpose the raising of revenue, as opposed to the regulation of public order, is a tax.” Safety Net, 96-1978 at p. 5, 692 So.2d at 1041.

In the matter before us, it is undisputed that Calcasieu Parish’s primary concern was loss of revenue from CITGO if the parish were to activate the Foreign Trade Zone. Correspondence from and between officials of Calcasieu Parish show that approval was denied until CITGO could satisfactorily prevent the diminishment of the ad valorem tax collection. In CITGO’s letter of agreement, it recited that it would maintain property in its ad valorem tax base. This agreement was recited in the enacting resolution wherein Calcasieu Parish endorsed the activation of the Foreign Trade Zone. In that resolution, Calcasieu Parish acknowledged that it “was concerned about the potential adverse impact on taxing entities” and that it had entered an “agreement providing for tax base stability.” The record reflects that CITGO listed the agreed inventory on the appropriate tax forms, that the tax was levied as a tax, and that CITGO’s check stubs reflect payment of a tax. The undisputed affidavits of the Calcasieu Parish tax | ^assessor and CITGO’s tax manager assert they both considered the payments ad valorem taxes.

Looking at the nature of CITGO’s payments and CITGO’s agreement to retain property in its ad valorem tax base, and observing that the principal purpose of CITGO’s payments was the maintenance of tax revenue for Calcasieu Parish, we conclude the payments were ad valorem taxes. Accordingly, CITGO’s claim was an allowable income tax deductions under La. R.S. 47:287.63 and CITGO was entitled to take the appropriate franchise tax credit under La. R.S. 47:6006.

Contentions of the Parties

A. The Department’s Contentions

The Department argues that CITGO’s payments could not be taxes because Cal-casieu Parish had no right to collect a tax under the express terms of 19 U.S.C. § 81o(e), which provides:

(e) Exemption from State and local ad valorem taxation of tangible personal property. Tangible personal property imported from outside the United States and held in a zone for the purpose of storage, sale, exhibition, repackaging, assembly, distribution, sorting, grading, cleaning, mixing, display, manufacturing, or processing, and tangible personal property produced in the United States and held in a zone for exportation, either in its original form or as altered by any of lathe above processes, shall be exempt from State and local ad valorem taxation. (Emphasis added.)

The Department cites no law, and we can find none, supporting the proposition that a tax cannot be a tax if unlawfully levied. We specifically do not decide the issue of whether Calcasieu Parish lawfully levied the tax against CITGO, and we could not properly decide the matter without Calcasieu Parish’s involvement as a party. We do disagree, however, with the Department’s assertion that CITGO’s payment could not be characterized as a tax if Calcasieu Parish had no legal right to levy a tax.

The Department also argues that CIT-GO’s payments were payments in lieu of taxes and, thus, do not qualify for state income tax deductions or franchise tax credits. We have already decided that CITGO’s payments were tax payments. Even so, we note that payments in lieu of taxes are generally intended to “compensate ... authorities for any services rendered by them to such projects ....” See, e.g., La. R.S. 33:130.606, La. R.S. 33:4710.6, La. R.S. 39:996, and La. R.S. 51:1160. Since CITGO’s payments to Cal-casieu Parish were intended to maintain revenue and not reimburse the Parish for services, we disagree with the Department’s characterization of the payments as payments in lieu of taxes.

Even so, not every imposition of a charge or fee by a. government is a tax: “If the imposition has not for its principal object the raising of revenue, but is merely incidental to the making of rules and regulations to promote public order, individual liberty and general welfare, it is an exercise of the police power. In similar fashion, the police power may be exercised to charge fees to persons receiving grants or benefits not shared by other members of society.” (Citations omitted.) Audubon Ins. Co. v. Bernard, 434 So.2d 1072, 1074 (La.1983).

|7But is it settled principle that such assessments are supposed to be equivalent to the value of the special benefits afforded. See Louisiana Ry. & Navigation Co. v. Madere, 124 La. 635, 638, 50 So. 609, 610 (1909), citing Cooley on Taxation, p. 456. Here, however, the uncontradicted evidence indicates that Calcasieu Parish’s purpose was maintenance of revenue, and there is no evidence in the record correlating the amount of the assessment with cost of services to CITGO.

In this regard, the Department’s example of fees paid by Indian casinos to the state government is inapposite. 25 U.S.C. § 2710(d)(3)(C)(iii) allows a State-Indian compact to provide for “the assessment by the State of such activities in such amounts as are necessary to defray the costs of regulating such activity.” (Emphasis added.) 25 U.S.C. § 2710(d)(4) further provides: “Except for any assessments that may be agreed to under paragraph (3)(C)(iii) of this subsection, nothing in this section shall be interpreted as conferring upon a State or any of its political subdivisions authority to impose any tax, fee, charge, or other assessment upon an Indian tribe or upon any other person or entity authorized by an Indian tribe to engage in a class III activity.” In brief, the Department acknowledges that the state compacts with Indian tribes require payments “to defray the expense of police, road work, etc. associated with the casino.” Here there is no evidence that CITGO’s payments to Calcasieu are any type of fee to defray such expenses.

Further, some assessments are also authorized by statute to provide for the health, welfare and safety of the public, such as assessments for garbage collection. See City of Lake Charles v. Wallace, 247 La. 285, 300-301, 170 So.2d 654, 659-660 (1964). Such charges are not taxes but the price paid for the commodity sold. See City of Lake Charles, 247 La. at 302, 170 So.2d at 660, citing 51 Am.Jur. Taxation, § 16, pp. 48-49. Here, however, there is no evidence in the record demonstrating, and the Department does not suggest, that Calcasieu Parish was collecting the money as the cost for any exercise of its police power.

The Department does suggest, however, that CITGO’s payments were voluntary payments, or donations, to Calcasieu Parish. The record contradicts this contention. The payments were made pursuant to CITGO’s agreement to retain property in its ad valorem tax base.

Accordingly, we disagree that CITGO’s payments to Calcasieu Parish were payments in lieu of taxes, voluntary payments, or anything other than tax payments.

B. CITGO’s Contentions

CITGO argues that it has waived its exemption under 19 U.S.C. § 81o(e) and has submitted itself to Calcasieu Parish’s ad valorem tax. This exemption, set out in full above, provides that CITGO’s property held within the Foreign Trade Zone “shall be exempt from State and local ad valorem taxation.” However, since resolution of whether CITGO can legally waive this mandatory federal tax exemption is not determinative here, we decline to decide this issue.

CITGO also argues that the Internal Revenue Service treats payments in lieu of taxes (had we decided CITGO’s payments were of this character) as payments of tax. It cites several Private Letter Rulings in support of its | ¡¡position. We decline to address this argument since we characterize CITGO’s payments as payment of ad valorem tax. We also note that while the reasoning in these Private Letter Rulings may have persuasive authority, IRS interpretations are not binding on this court or on the Department.

Rulings on Summary Judgment

Summary judgment is appropriate when all relevant facts are brought before the court, the relevant facts are undisputed, and the sole issue remaining is the conclusion to be drawn from the relevant facts. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 29 (La.7/5/94), 639 So.2d 730, 752, appeal after remand, 96-1837 (La.9/27/96), 680 So.2d 1163. Here the parties stipulate that the facts are undisputed. And based on these undisputed facts, the Department is not entitled to summary judgment being entered in its favor. Accordingly, we reverse the judgment of the trial court granting summary judgment in favor of the Department and against CITGO.

CITGO also asks us to reverse the trial court’s denial of its motion for summary judgment. But, the denial of a motion for summary judgment is an interlocutory judgment that cannot be appealed, and, since no writ application has been filed, the issue is not properly before us. Trahan v. Rally’s Hamburgers, Inc., 96-1837, p. 9 (La.App. 1 Cir. 6/20/97), 696 So.2d 637, 642. See also La. C.C.P. art. 968, which states in pertinent part: “An appeal does not lie from the court’s refusal to render any judgment on the pleading or summary judgment.” See also Towles v. Heirs of Morrison, 428 So.2d 1029 (La.App. 1 Cir.1983) where this court stated: “A trial ImCourt’s denial of a motion for summary judgment is not reviewable even upon appeal from a final judgment on the merits.” (Emphasis added.)

Nonetheless, we do have authority to exercise supervisory jurisdiction and treat the appeal of the denial of CITGO’s motion for summary judgment as an application for supervisory writs. See Trahan v. Prudential Property & Casualty Ins. Co., 97-2470, p. 3 (La.App. 1 Cir. 5/14/99), 739 So.2d 811, 813. In the interest of judicial economy, where our review of the denial of a motion for summary judgment in this case will bring finality to the litigation below, we exercise our discretion and convert CITGO’s appeal of the denial of its motion for summary judgment as an application for supervisory writs.

Here, CITGO asked for summary judgment on its entitlement to take certain income tax credits under La. R.S. 47:287.63 and to take appropriate corporation franchise tax credits under La. R.S. 47:6006. Having concluded that CITGO’s payments to Calcasieu Parish were taxes, and not some other type of payment, we agree that CITGO is entitled to summary judgment in its favor. Accordingly, CIT-GO is entitled to a refund of all the taxes it paid under protest in connection with this matter in the amount of $1,215,567.10, l^together with interest from the date of payment under protest. CITGO is also entitled to a refund of $196,010.00, reflecting the difference between the credit of $301,563 to which it was entitled and the $105,553.00 credit it claimed, together with interest from the date CITGO paid such amounts in protest.

DECREE

For reasons stated, we reverse the judgments of the trial court, declaring that CITGO’s payments at issue to Calcasieu Parish were tax payments and not payments in lieu of taxes. We further convert CITGO’s appeal of the denial of its motion for summary judgment into a writ, which we grant. We render judgment in favor of CITGO, ordering the Department to refund all the taxes CITGO paid under protest in connection with this matter in the amount of $1,215,567.10, together with interest from the date of payment under protest and further ordering the Department to refund to CITGO the amount of $196,010.00, together with interest from the date CITGO paid such amounts in protest. Costs in this matter are taxed to the Louisiana Department of Revenue and Taxation in the amount of $ 1,270.79.

KUHN and GAIDRY, JJ., concur.

REVERSED; WRIT GRANTED; JUDGMENT DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT REVERSED; JUDGMENT RENDERED IN PLAINTIFF’S FAVOR GRANTING MOTION.

      . Foreign Trade Zones are authorized by 19 U.S.C. § 81b. A Foreign Trade Zone is an area located in or adjacent to a United States Customs port of entry. These zones are designed to provide areas exempt from United States Customs law. These Zones are treated as being outside the customs territory of the United States. Thomas Schaumberg, Commentary, Overview of Chapter 1A. Foreign Trade Zones, Nat. Inst, for Trial Advoc., 19 U.S. NITA prec § 81a (2002).

      . Both parties agree that there are no factual issues in dispute and that this legal question, more or less as articulated, is the sole matter for us to decide.

      . But the fact that an assessment or service, fee may generate incidental revenue does not necessarily make an assessment or fee a tax. See City of Lake Charles v. Wallace, 247 La. 285, 303, 170 So.2d 654, 660 (1964), citing Glass v. City of Fresno, 17 Cal.App.2d 555, 62 P.2d 765 (1936).

      . La. R.S. 47:287.63 Allowable deductions defined
      “Allowable deductions” for a taxable year means the deductions from federal gross income allowed by federal law in the computation of taxable income of a corporation for the same taxable year, subject to the modifications specified in this Part.

      . Effective at all pertinent times, La. R.S. 47:6006, provided in pertinent part as follows:
      A. There shall be allowed a credit against the corporate and personal income taxes and corporation franchise tax for ad valorem taxes paid to political subdivisions on inventory held by manufacturers, distributors, and retailers....
      B. Credit for taxes paid by corporations shall be applied to state corporate income and corporation franchise taxes....

      D. The credit provided in this Section shall be allowed as follows:
      (1) For inventory taxes paid to political subdivisions on or after July 1, 1992, and before June 30, 1993, the credit shall be twenty percent of such taxes paid.

      . With permission of this court, Marathon Oil Company filed an amicus curiae brief in support of CITGO’s appeal. Marathon claims a substantial interest in the outcome of this case because it claims our decision today will likely impact litigation in which it is a party seeking refund of corporation franchise taxes paid under protest under similar circumstances to those before us. Marathon's brief raises the same issues as CITGO and adds additional authority for CITGO’s arguments.

      . In response to this argument, the Department filed a motion for leave of court to attach to its brief a memorandum from the Internal Revenue Service arguably relevant to the issue. We grant the Department’s motion to attach the memorandum to its brief. We note, however, that the memorandum is not admitted into evidence or filed into the record.

      . We are aware of a line of cases beginning with Devers v. Southern University, 97-0259, p. 16 (La.App. 1 Cir. 4/8/98), 712 So.2d 199, 209 proposing that a summary judgment can be appealed with the final judgment in the case. Employing this principle, several recent cases, including one recently rendered by this panel, have asserted that it is proper to challenge the denial of a motion for summary judgment in connection with the appeal of a final judgment granting summary judgment. See Industrial Indemnity Co. of the Northwest v. Central National Ins. Co. of Omaha, 99-2535, p. 8 (La.App. 1 Cir. 12/22/00), 775 So.2d 1246, 1250; Pitts v. Fitzgerald, 01-0543, p. 5 n. 8 (La.App. 1 Cir. 5/10/02), 818 So.2d 847, 850 n. 8; Board of Trustees of State Employees Group Benefits Program v. The St. Landry Parish Board, et al, 02-0393, p. 8 (La.App. 1 Cir. 2/14/03), 844 So.2d 90, 92. These decisions, while laudatory in their purpose of promoting judicial efficiency, are in conflict with the clear terms of La. C.C.P. art. 968 and with established First Circuit jurisprudence.

      . In its brief on appeal, the Department states that the numbers are not in dispute. It suggests, however, that CITGO pursue its refund of $196,010 by amended return and request for a refund. In its motion for summary judgment, however, CITGO requested a refund in this amount. The Department did not oppose or contradict CITGO’s entitlement to this amount should it prevail on its summary judgment motion. Accordingly, in the interest of justice and in accordance with the facts and pleadings, we render judgment on this undisputed issue here.