text:
    Wayne Richard TEMPLE v. STATE of Louisiana, Through the DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT.
    No. 2002 CA 1977.
    Court of Appeal of Louisiana, First Circuit.
    June 27, 2003.
    Writ Denied Nov. 7, 2003.

      Leonard Cardenas, III, Baton Rouge, Counsel for Plaintiffilst Appellant Wayne Richard Temple.
    Richard P. Ieyoub, Attorney General, William E. Crawford, Jr., Assistant Attorney General, Baton Rouge, Counsel for Defendant/2nd Appellant State of Louisiana, Through the Department of Transportation and Development.
    Before: FITZSIMMONS, GUIDRY, and PETTIGREW, JJ.
   J^FITZSIMMONS, J.

Plaintiff, Wayne Richard Temple, filed a claim for damages against defendant, State of Louisiana, Department of Transportation and Development (DOTD). The petition alleged that DOTD was liable for the death of Mr. Temple’s wife of one month, Anna Marie Temple. The jury awarded Mr. Temple $75,000.00 for his wrongful death claim, but allocated 85% of the fault to Mrs. Temple and 15% to DOTD. The trial court granted Mr. Temple’s motion for additur, increased the award for wrongful death to $200,000.00, and alternatively granted a new trial on the issue of damages. DOTD rejected the additur, thereby subjecting itself to the new trial. See La. C.C.P. art. 1814. After the new trial, the jury awarded Mr. Temple $100,000.00. Subsequently, the trial court granted Mr. Temple’s motion for a Judgment Notwithstanding the Verdict (JNOV), and raised the award to $250,000.00. Both parties appealed.

Plaintiff assigned the following errors to the judgment:

1. The trial court erred in instructing the jury that the plaintiff was presumed at fault for leaving the roadway, thus erroneously shifting the burden of proof.

2. The trial court erred in allowing the police officer to testify that he smelled alcohol “despite that same [cjourt’s earlier (and correct) ruling disallowing evidence of alleged intoxication based on a finding that there was no competent evidence that Anna Marie Temple was intoxicated at the time of her accident.”

3. The trial court erred by failing to find DOTD 100% at fault.

4. Alternatively, if the testimony about the odor of alcohol was admissible, the jury erred in allocating the majority of the fault to Anna Marie Temple.

DOTD assigned the following errors:

1. The jury erred in finding that DOTD was at fault when none of the alleged defects in the roadway was shown to have caused the accident.

|s2. The trial court improperly allowed a jury instruction and evidence about design guidelines formulated after O’Neal Lane was originally constructed.

3. The trial court improperly raised the award of damages.

After a thorough review of the record, we reverse the increase in damages by the trial court and reinstate the original jury verdict. The remainder of the judgment is affirmed.

FACTS OF THE ACCIDENT

Construction began on O’Neal Lane in 1957. It is unclear from the record at what times the lane was a actually a state road, but, at the time of the accident, the roadway was a state road and was being re-surfaced. Mrs. Temple lived in the area of O’Neal Lane for about fifteen years. The day before the accident, she drove the same route that she used the night of the accident, and was aware of the re-surfacing. On February 12, 1998, Mrs. Temple was killed in a one vehicle accident at approximately 1:30 a.m. As Mrs. Temple approached a curve in O’Neal Lane, her car left the roadway. After leaving the roadway, the car continued in a straight line over a driveway, bottomed out on the side of a driveway culvert and the dirt above it, impacted several mailboxes and some bushes, grazed a utility pole, and hit a steel guy line or cable attached to a telephone pole. Finally, the car came to rest upside down wrapped in the steel cable. Mrs. Temple, who was not wearing her seatbelt, was ejected from the car. No evidence of skidding or braking was found. The record contains no evidence that Mrs. Temple attempted to return to the roadway. No other accidents or collisions had occurred at the same point on O’Neal Lane.

JURY INSTRUCTIONS

The pertinent jury instructions given by the trial judge are as follows:

[DOTD’s] duty to provide a reasonably safe highway does not require DOTD to take every conceivable measure to prevent injuries. DOTD does not have a duty to bring old highways up to current safety | standards, unless the highway has undergone major reconstruction. Nevertheless, DOTD has a duty to correct conditions existing on old highways that are unreasonably dangerous, and modern AASHTO standards may be considered by you in determining whether the roadway was unreasonably dangerous.
You must also determine whether the state has proven that the conduct of Anna Marie Temple contributed to the plaintiffs injuries. Louisiana law states that the recovery of an injured person must be allocated between any persons who may have contributed to that injury.
In this case, the standard applicable to Anna Marie Temple’s conduct is that she exercise a degree of care which we might reasonably expect a person to exercise for her own safety and protection. The state has the burden of proving by a preponderance of the evidence that Anna Marie Temple failed to conform to that standard and by that failure, caused her own injuries, either in whole or in part. If the state convinces you of that, then you must take into account the degree of fault attributable to Anna Marie Temple in returning your verdict. The greater the deviation made by a person from this standard, the greater you should make her degree of fault. I will give you some questions to answer on your verdict sheet that will assist you in this determination.
A presumption of negligence arises when a driver leaves her own lane of traffic. In order to rebut that presumption, plaintiff has the burden of proving that the driver was not guilty of any dereliction, however slight.
There is no presumption of negligence when a driver consumes alcohol prior to an accident. In order to establish the negligence of a driver who may have consumed alcohol prior to the accident, the state must show that the alcohol consumption was a legal cause of the accident.
Louisiana law provides that you divide the total responsibility of damages among those who were at fault. You should do this by assigning percentages which will [total] 100%. You are free to assign whatever percentage you deem to be appropriate and you should do so by answering the questions which will be provided to you on the special verdict sheet.

Presumption of Negligence

The plaintiffs primary concern is that the presumption of negligence instruction improperly shifted the burden of proof. Plaintiff, Mr. Temple, argues that the application of the presumption required him to prove “by clear and convincing” evidence that Mrs. Temple was not negligent.

| BThe plaintiff has the burden to prove, by a preponderance of the evidence, that DOTD caused the accident and the attendant injuries and damages. See Payne v. State Farm Mutual Automobile Insurance Company, 99-2737, 99-2738, p. 3 (La.App. 1 Cir. 12/22/00), 775 So.2d 683, 685. A presumption “shifts the burden of production or persuasion to the [defendant], who can then attempt to overcome the presumption.” Black’s Law Dictionary 1203 (7th ed.1999). In Ferrell v. Fireman’s Fund Insurance Co., 94-1252, p. 6 (La.2/20/95), 650 So.2d 742, 746, the supreme court reiterated a Louisiana jurisprudential rule that, “in exceptional cases a presumption of negligence arises when a defendant motorist leaves his own traffic lane and strikes another vehicle. In such a case, the burden of proof on such a defendant motorist is to show that he was not guilty of a dereliction, however slight.” After explaining that the shift in the burden was based on the duty of the defendant motorist to remain in his own lane of travel, the court applied the presumption to one of the defendants. Ferrell, 94-1252 at p. 6, 650 So.2d at 746-47; see La. R.S. 32:71 A. However, the actual facts of Ferrell differed from those underlying the traditional application of the presumption. In Ferrell, the motorist defendant left her lane of travel, but did not directly strike the plaintiffs car. Instead, the position of the defendant’s car caused a subsequent collision between the plaintiff and other cars. Ferrell, 94-1252 at pp. 1-2, 650 So.2d at 744.

The trial court has discretion in choosing the instructions to be given to the jury. However, if the wrong standard was applied to the prejudice of the plaintiff, this court would conduct a de novo review and render a decision. Payne, 99-2737, 99-2738 at p. 4, 775 So.2d at 686. In reviewing the trial court’s decision, the appellate court must exercise restraint before overturning a jury verdict on the suggestion that jury instructions were so erroneous as to be prejudicial. Billiot v. Estate of Richardson, 94-1794, p. 4 (La.App. 1 Cir. 5/5/95), 655 So.2d 443, 445.

Un this case of a one vehicle accident, we do not find the exceptional circumstances that underlie the Ferrell presumption. Thus, we find that the presumption does not apply and the trial court abused its discretion in instructing the jury on its use. The remaining question is whether the instruction in this case impermissibly placed a heavier burden on plaintiff, Mr. Temple, thereby tainting the jury’s verdict, and requiring a de novo review.

The effect of the Ferrell presumption is to shift, to the defendant, the plaintiffs initial burden to prove negligence in a vehicular accident. However, in this case, the burden of proof was not shifted to the defendant. It remained with the plaintiff, Mr. Temple, who properly had the burden of proof in this wrongful death case. The plaintiff had the burden to prove, by a preponderance of the evidence, that DOTD caused the accident and attendant damages. Under the particular facts of this accident (especially with one victim and one defendant accusing each other of 100% liability), and without the presumption, plaintiffs failure to prove DOTD’s fault could reasonably result in a corresponding finding of victim fault. Most importantly, the other instructions given by the court at the same time as the presumption more clearly explained the proper placement of the burdens of proof and the essential principles of comparative negligence. The plaintiffs traditional burden to prove his case, in conjunction with the ameliorating effect of the other instructions, substantially dampened any possible prejudice or confusion that may have been caused by the inapplicable instruction. This finding is bolstered by the jury’s allocation of fault to both parties on a record that is not overwhelmingly supportive of the causal link between the alleged defects in the roadway and the accident. Therefore, from our review of the record, we cannot say that the erroneous instruction improperly shifted the burden of proof, or created prejudice sufficient to interdict the jury’s decision making process. For these reasons, a de novo review is not required.

\7AASHTO Standards

DOTD complains of the trial court’s decision to allow testimony based on AASHTO (American Association of State Highway and Transportation Officials) standards and guidelines formulated and published after O’Neal Lane was constructed. DOTD argues that the current project was only a re-surfacing. Thus, only the standards in place at the time of construction, and applicable to the particular highway in question, should have been presented to the jury. Primarily relying on the Louisiana Supreme Court decisions of Petre and Aucoin, Mr. Temple asserts in his brief that post-construction standards and guidelines are “a relevant factor in determining whether the roadway is unreasonably dangerous” and DOTD was negligent in not correcting those defects. See Petre v. State, Department of Transportation and Development, 2001-0876, pp. 10-11 (La.4/3/02), 817 So.2d 1107, 1113; Aucoin v. State, Department of Transportation and Development, 97-1938, 97-1967, pp. 6-8 (La.4/24/98), 712 So.2d 62, 66-67.

DOTD has no duty to conform to post-construction standards, such as AASHTO, but does have a duty to correct conditions on old roadways “that are unreasonably dangerous.” Cormier v. Comeaux, 98-2378, pp. 9-10 & 13 (La.7/7/99), 748 So.2d 1123, 1129, 1131. Under the holdings of Petre and Aucoin, plaintiff may use post-construction standards, such as AASHTO, as an aid or piece of the puzzle in his attempt to prove that the roadway was unreasonably dangerous.

Therefore, the trial court did not abuse its discretion in its instruction to the jury on the use of the AASHTO standards. The instruction did not require the jury to apply post-construction standards or guidelines as a basis for finding that noncompliance was negligence per se. The instruction did correctly state the legally ^permissible use of post-construction standards and guidelines like AASHTO to a case arising in 1998.

ADMISSIBILITY OF ALCOHOL ODOR EVIDENCE

Plaintiff, Mr. Temple, assigned error to the trial court’s decision to allow testimony about the smell of alcohol coming from the victim. Mr. Temple argues that the testimony was more prejudicial than probative, and should have been excluded under the trial court’s prior ruling prohibiting evidence of intoxication. Because of the legal error, plaintiff believes this court should conduct a de novo review.

At trial, a state trooper testified that he had many years of experience detecting intoxication and the smell of alcohol. He stated that he detected the “odor of alcohol” coming from Mrs. Temple at the scene of the accident. Under questioning by plaintiffs counsel, the trooper agreed that other things smell like alcohol, such as “fake beer.” Later, at the hospital, another trooper, familiar with issuing citations for DWI’s, testified that he “smelled an odor of alcohol, what I believe to be alcohol coming from the room” where a doctor was performing a “blood alcohol extraction” on Mrs. Temple. On cross-examination, the trooper admitted that he could not tell if the smell emanated from beer, cough syrup, or something else. Neither trooper testified that Mrs. Temple was intoxicated.

“ ‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” La. C.E. art. 401. Louisiana Code of Evidence article 701 allows a lay witness with firsthand knowledge to testify to an opinion “[rjationally based on the perception of the witness; and” if it is “[hjelpful to a clear understanding of his testimony or the determination of a fact in issue.” See La. C.E. art. 701, 2003 Authors’ Notes (1). Thus, a lay witness can give opinion testimony based on his training, investigation, | perception of the scene, and observation of physical evidence. Wingfield v. State, Department of Transportation and Development, 2001-2668, 2001-2669, p. 19 (La.App. 1 Cir. 11/8/02), 835 So.2d 785, 801, writ denied, 2008-0313, 2003-0339, 2003-0349 (La.5/30/03), 845 So.2d 1059. “All relevant evidence is admissible, except as otherwise provided by” law. La. C.E. art. 402. Relevant “evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice _” La. C.E. art. 403. Rulings on the admissibility of evidence are well within the discretion of the trial court. Wingfield, 2001-2668, 2001-2669 at p. 21, 835 So.2d at 803.

The troopers testified to their personal opinions, based on training and experience, that they smelled the odor of alcohol emanating from the nearby victim. Mr. Temple’s counsel was allowed to challenge their opinion, and, by questioning, attempt to rebut any inference that the alcohol smell came from an intoxicating beverage. Under the particular facts of this case, we cannot say that the trial court abused its discretion or was clearly wrong in allowing witnesses, with reasonably reliable first hand knowledge, to provide testimony “[rjationally based” on their observations. While testimony concerning the use of alcohol or drugs may sometimes elicit prejudice, the plaintiff here was afforded an opportunity to question the observers, rebut any prejudicial perceptions, and expose weaknesses or errors in the testimony. Based on this record, we do not find that prejudice “substantially outweighed” the probative value of the testimonial evidence. La. C.E. art. 403. A trial should be, as nearly as possible, a search for the truth. We find no abuse of discretion and no basis for a de novo review.

LIABILITY AND ALLOCATION OF FAULT

Both parties assign error to the jury’s liability or fault determinations. In the event this court did not conduct a de novo review, Mr. Temple argues that the jury | inerred in assessing the majority of the fault to Mrs. Temple. DOTD asserts that the alleged defects did not cause the damages and it should not have been held liable.

DOTD has a duty to keep the state roadways reasonably safe for persons exercising ordinary care and reasonable prudence. Cormier, 98-2378 at p. 6, 748 So.2d at 1127. To meet plaintiffs burden of proof to show a breach of duty and causation by DOTD, he must show that (1) defendant had custody over the thing causing the harm, (2) the thing causing the damage was defective and created an unreasonable risk of harm, (3) defendant had actual or constructive knowledge of the defect, and failed to take corrective action within a reasonable time, and (4) the defective thing caused the injury or damages to the plaintiff. Petre, 2001-0876 at p. 5, 817 So.2d at 1110. The criterion for a finding of unreasonable risk of harm “entails a myriad of considerations and cannot be applied mechanically.” Oster v. Department of Transportation and Development, State of Louisiana, 582 So.2d 1285, 1288 (La.1991). The inquiry involves a balancing of the likelihood and magnitude of the harm against the utility of the thing, while considering social and economic factors. Cormier, 98-2378 at p. 8, 748 So.2d at 1128.

Whether a road is unreasonably dangerous and whether an unreasonably dangerous defect caused the plaintiffs damages are findings of fact. Petre, 2001-0876 at p. 7, 817 So.2d at 1111. An appellate court may not overturn a jury’s finding of fact “in the absence of ‘manifest error’ or unless it is ‘clearly wrong.” ’ Stobart v. State, Department of Transportation and Development, 617 So.2d 880, 882 (La.1993). Even if the court of appeal believes that its own findings are more reasonable, the jury’s “reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony.” Id. “Thus, where two permissible views of the evidence exist, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong.” Stobart, 617 So.2d at 883. Similarly, apportionment or allocation of |nfault is subject to the clearly wrong standard of review. Clement v. Frey, 95-1119, 95-1163, p. 7 (La.1/16/96), 666 So.2d 607, 610-11.

By assigning 85% of the fault to Mrs. Temple, the jury found her primarily responsible for leaving the roadway. This finding of liability and percentage of fault is bolstered by the absence of any skid or braking marks on the straight line path of the car after it left the roadway. The record contains no evidence or sign that Mrs. Temple tried to regain control or return to the road.

Plaintiffs expert, relying on various highway standards, found that the roadway had five defects: the roadway lacked fog and center fines to guide the driver, the utility poles and culvert were too close to the roadway, the ditch slope ratio and shoulder were not adequate, and a bump or reverse pothole acted as a launch pad, causing the driver to lose control of the car. The expert opined that the alleged defects were unreasonably dangerous, and without them, “we probably wouldn’t be here.”

DOTD’s expert disagreed. He presented opinion and documentary evidence rebutting the applicability of the standards relied on by plaintiffs expert, challenging the requisite width of the shoulders on O’Neal Lane and the purpose of highway markings, questioning the economic feasibility of removing culverts and poles from highway right of ways, and contradicting the claimed steepness of the slope and existence of the bump. DOTD’s witnesses testified that there were no unreasonably dangerous problems at the location of the accident and there had been no prior accidents, or complaints lodged prior to the Temple accident. Thus, the jury was faced with conflicting evidence and opinions.

Based on our review of the record, the jury could have reasonably found, singly or in combination, that plaintiff failed to show (1) that, at the time and location of the accident, the bump or reverse pothole existed, (2) that the slope ratio of the ditch was unreasonably dangerous, (3) that it was economically feasible |12to remove obstacles from this road and other roadsides across the state, (4) that particular roadside objects presented a danger that outweighed their utility, (5) that the obstacles were new and unknown to Mrs. Temple, (6) that the alleged defects specifically caused the accident and damages here, or (7) that DOTD had actual or constructive notice of the alleged defects and failed to respond timely.

Although plaintiffs expert concluded the defects probably caused the accident, his specific testimony on the defects primarily highlighted the dangerous possibilities presented by the alleged defects to all motorists. On this record, particularly in the absence of a more direct link to causation, we cannot say that the jury was “clearly wrong” in rejecting the majority of plaintiffs version of causation, liability, or allocation. Clement, 95-1119, 95-1163 at p. 7, 666 So.2d at 611. Where two permissible views of the evidence are presented, the fact finder’s choice between them cannot be “clearly wrong.” Stobart, 617 So.2d at 883. Thus, we affirm the allocation of 85% of the fault to Mrs. Temple.

While assessing the greater fault to Mrs. Temple, the jury also assigned 15% of the fault to DOTD. Though we are unsure of the basis for that allocation, and must speculate, the likeliest candidate is DOTD’s failure to re-mark the roadway surface. On this issue, we again have a contest between the experts.

The trooper on scene testified that fog lines were missing from the edge of the roadway at the point the car left the road, but he remembered double yellow center lines. Mr. Temple introduced photos, taken a few days after the accident, in which the fog and center lines were missing. While Mr. Temple’s expert opined that fog and center lines generally help motorists stay on the road by outlining the path of the roadway, DOTD’s expert testified that highway markings are used primarily to aid drivers unfamiliar with a roadway, not a repetitive user like Mrs. Temple. From the testimony, the jury may have found that the fog and center lines were missing. The jury may have extrapolated an opinion and found that the ^absence of these markings contributed, in conjunction with her own negligence, to Mrs. Temple’s inability to keep her vehicle on the roadway.

Though our analysis of the basis for DOTD’s fault is purely speculative, we are guided by the precepts of Stobart. Regardless of whether the fact finder favors the version of the story told by the plaintiff or defendant, we cannot reverse based merely on our choice of facts. If the record reasonably supports the determinations of the jury, we must defer to their first-hand observation of the witnesses and legal function as fact finder. See Stobart, 617 So.2d at 882. Again, where there are two permissible views of the evidence, the choice of the finder of fact cannot be wrong. Stobart, 617 So.2d at 883. Thus, from this record, we cannot say that the jury was clearly wrong in its allocation of fault to DOTD.

DAMAGES

In its reasons for granting the additur, and alternatively a new trial, the trial court noted that Mr. Temple was a stoic witness and that the couple had a five-year relationship before their marriage. The court stated that the jury’s award was “an abuse of discretion.” In assigning error, DOTD argues that the jury award of $75,000.00 was not abusively low, and thus the additur and the subsequent grant of a new trial was error. Alternatively, DOTD argues that the JNOV was wrongly granted and the second jury award of $100,000.00 should be re-instated.

The role of the appellate court, and the trial court in a jury trial, is not to replace or second guess the jury and determine what the court thinks is an appropriate award of damages. The jury, or fact finder, has “much discretion” in the award of damages. La. C.C. art. 2324.1; Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1260 (La.1993). The determination of an appropriate award is fact intensive, and dependent on the “particular injury to the particular plaintiff under the particular circumstances .... ” Youn, 623 So.2d at 1261.

114A trial court may offer an additur if the court finds that the jury award was so inadequate that the jury abused its discretion and a new trial should be granted. La. C.C.P. art. 1814. Thus, the decision to offer an additur rests on whether the grant of a new trial would be proper. Magee v. Pittman, 98-1164, p. 18 (La.App. 1 Cir. 5/12/00), 761 So.2d 731, 746, writ denied, 2000-1694 (La.9/22/00), 768 So.2d 31 and writ denied, 2000-1684 (La.9/22/00), 768 So.2d 602. However, an additur can be finally “entered only with the consent” of the non-moving, opposing party. La. C.C.P. art. 1814. If the opposing party rejects the additur, the new trial is held. Accardo v. Cenac, 97-2320, p. 7 (La.App. 1 Cir. 11/6/98), 722 So.2d 302, 306.

The fact that a determination on a motion for new trial involves judicial discretion, however, does not imply that the trial court can freely interfere with any verdict with which it disagrees. The discretionary power to grant a new trial must be exercised with considerable caution, for a successful litigant is entitled to the benefits of a favorable jury verdict. Fact finding is the province of the jury, and the trial court must not overstep its duty in overseeing the administration of justice and unnecessarily usurp the jury’s responsibility. A motion for new trial solely on the basis of being contrary to the evidence is directed squarely at the accuracy of the jury’s factual determinations and must be viewed in that light. Thus, the jury’s verdict should not be set aside if it is supportable by any fair interpretation of the evidence.

Davis v. Wal-Mart Stores, Inc., 2000-0445, p. 10 (La.11/28/00), 774 So.2d 84, 93 (emphasis omitted), quoting Gibson v. Bossier City General Hospital, 594 So.2d 1332, 1336 (La.App. 2 Cir.1991).

In other words, if the jury’s award is within its range of discretion, an additur is not proper. See Accardo, 97-2320 at p. 9, 722 So.2d at 307. The appellate standard of review for the grant of a new trial on grounds involving the trial court’s discretion is the same abuse of discretion standard. Magee, 98-1164 at p. 19, 761 So.2d at 746.

To begin, we interpret the trial court’s remarks to mean that the grant was based on Code of Civil Procedure article 1972(1), the verdict was contrary to thej^law and evidence, or, under article 1973, the court found “good grounds therefore.... ” Therefore, the trial court exercised its discretion in its offer of the additur and subsequent grant of the new trial. See Davis, 2000-0445 at pp. 9-10, 774 So.2d at 93.

From our reading of the record, and consideration of the particular facts here, we can find no basis for the grant of a new trial, or additur. “The jury’s verdict was supportable by a fair interpretation of the evidence.” Davis, 2000-0445 at p. 12, 774 So.2d at 95. Thus, the award of $75,000.00 to a loving spouse, married one month, with no children, and no evidence of an unusually traumatic or extended reaction, was within the jury’s range of discretion. Compare Magee, 98-1164 at pp. 20-21, 761 So.2d at 747-48 (award of $100,000.00 for spouse with a close relationship, and two children, during a thirteen-year marriage, was on low end, but acceptable); Jeffries v. Estate of Pruitt, 598 So.2d 379, 387 (La.App. 1 Cir.), writs denied, 599 So.2d 306 and 605 So.2d 1124 (La.1992) (award of $30,000 was not found to be abusively low for spouse with a two-year marriage, one-year relationship prior to marriage, and no children from the marriage); Arnold v. Illinois Central Gulf Railroad, 501 So.2d 778, 780 (La.App. 1 Cir.1986), writ denied, 503 So.2d 479 (La.1987) (award of $50,000.00 for spouse in a forty-two-year marriage, with two children and a close family “called for”). We agree that the five years the couple spent together before marriage was a factor to be considered in assessing the type of relationship that existed between them. However, wrongful death damages are provided by law only for a spouse, not unmarried couples. La. C.C. art. 2315.2 A(l). Thus, the duration of the pre-mari-tal relationship is not wholly determinative of the scope of the damages for this particular spouse, and did not render the jury’s initial award abusively low.

For the foregoing reasons, we vacate the award of $250,000.00 to Mr. Temple and reinstate the original jury award of $75,000.00. In all other h ¿regards, we affirm the judgment. The costs of the appeal, $4,873.64, are assessed equally between Mr. Temple and DOTD.

REVERSED IN PART, AFFIRMED IN PART, AND RENDERED.

GUIDRY, J., concurs.

      . For cases arising after July 9, 1999, the "evidence of failure to adhere to [a post-construction] standard, regulation, or guideline shall not be admissible in a court proceeding for any purpose.” La. R.S. 48:35 F(2).


source: Caselaw Access Project

author: J^PETTIGREW, J.

license: Public Domain

text:
    Celeste Walther MORAN v. Louis Victor MORAN.
    No. 2002 CA 1562.
    Court of Appeal of Louisiana, First Circuit.
    June 27, 2003.
    Writ Denied Nov. 7, 2003.
    Joseph P. Williams, Jr., Metairie, for Plaintiff-Appellee Celeste Walther Moran.
    Mark Alan Jolissaint, Slidell, for Defendant-Appellant Louis Victor Moran.
    Before: FITZSIMMONS, GUIDRY, and PETTIGREW, JJ.
   J^PETTIGREW, J.

In this domestic relations matter, the father has appealed a trial court judgment that revoked the father’s interim child support obligation and made his final child support obligation retroactive to the date of judicial demand.

FACTS

The parties in this matter, Celeste Walther Moran (Ms. Moran) and Louis Victor Moran (Mr. Moran), were married in the State of Louisiana on September 28, 1989. Of this marriage, three children were born; namely, Peyton Louis Moran, Brent Louis Moran, and Louis Victor Moran, Jr. The parties physically separated on December 20, 1998, and Ms. Moran filed a Petition for Divorce on January 8, 1999. The initial rule for child support was set for hearing on February 23, 1999. On the date of the hearing, counsel advised the court that a compromise agreement had been reached by and between the parties and this stipulation was made the judgment of the court. This interim order was signed on March 9, 1999, and condemned Mr. Moran to pay interim child support of $206.00 per month.

A Motion and Rule for Judgment of Divorce was filed on behalf of Ms. Moran on January 26, 2000. The parties were subsequently divorced pursuant to a judgment dated February 8, 2000.

On November 15, 2000, a motion for determination of final child support was filed on behalf of Ms. Moran. After several continuances, the trial court heard the rule for final child support on April 25, 2001. At that time, the trial court rendered a judgment that revoked the March 9, 1999 interim order and condemned Mr. Moran to pay child support of $884.00 per month. The judgment further provided that the child support award was made retroactive to the date of judicial demand, January 8, 1999. Mr. Moran was given credit for all child support paid pursuant to the interim order of March 9, 1999. This judgment was later signed on May 24, 2001.

From this judgment, Mr. Moran has taken a devolutive appeal.

I .ASSIGNMENT OF ERROR ON APPEAL

In connection with his appeal in this matter, Mr. Moran contends that the trial court erred in making the judgment of final child support retroactive to the filing date of Ms. Moran’s Petition for Divorce on January 8, 1999, rather than the date the final child support judgment was signed on May 24, 2001.

DISCUSSION

The Louisiana Constitution of 1974 provides that the appellate jurisdiction of the courts of appeal extends to both law and facts. La. Const. art. V, § 10(B). A court of appeal may not overturn a judgment of a trial court absent an error of law or a factual finding that is manifestly erroneous or clearly wrong. See Stobart v. State, Department of Transportation and Development, 617 So.2d 880, 882, n. 2 (La.1993). If the trial court’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Sistler v. Liberty Mutual Insurance Company, 558 So.2d 1106, 1112 (La.1990).

The essential issue in this appeal is the effect to be given La. R.S. 9:315.21, and whether the trial court erred in making the judgment of final child support in this matter retroactive to the date of judicial demand. Louisiana Revised Statute 9:315.21 provides, in pertinent part, as follows:

§ 315.21. Retroactivity of child support judgment

A. Except for good cause shown, a judgment awarding, modifying, or revoking an interim child support allowance shall be retroactive to the date of judicial demand, but in no case prior to the date of judicial demand.
B. (1) A judgment that initially awards or denies final child support is effective as of the date the judgment is signed and terminates an interim child support allowance as of that date.
(2) If an interim child support allowance award is not in effect on the date of the judgment awarding final child support, the judgment shall be retroactive to the date of judicial demand, except for good cause shown, but in no ease prior to the date of judicial demand.
C. Except for good cause shown, a judgment modifying or revoking a final child support judgment shall be retroactive to the date of judicial demand, but in no case prior to the date of judicial demand.
E. In the event that the court finds good cause for not making the award retroactive to the date of judicial demand, the court may fix the date on which the award shall commence, but in no case shall this date be a date prior to the date of judicial demand.

Through his brief filed with this court, Mr. Moran asserts that an award of final child support should only be effective from the date the judgment of final child support was signed and not retroactive to the date of judicial demand. In support of his position, Mr. Moran directs this court’s attention to Pellerin v. Pellerin, 97-2085 (La.App. 4 Cir. 6/17/98), 715 So.2d 617, writ denied, 98-1940 (La.10/30/98), 727 So.2d 1167; Martin v. Martin, 98-165 (La.App. 3 Cir. 6/3/98), 716 So.2d 46; and Falterman v. Falterman, 97-192 (La.App. 3 Cir. 10/8/97), 702 So.2d 781, writ denied, 98-0076 (La.3/13/98), 712 So.2d 863. These cases stand for the proposition that the signing of a judgment of final child support terminates an existing award of interim child support as of that date. Therefore, the appellate courts in the cited cases have held that a trial court’s determination that a child support award be retroactive to the date of judicial demand is erroneous as a matter of law.

Ms. Moran responds with the argument that none of the cases cited by Mr. Moran involve a judgment that specifically revokes an interim support award and thereafter makes an award of final support that is retroactive to the date of judicial demand. In support of her contention that the trial judge was correct, Ms. Moran cites the language of La. R.S. 9:315.21(A). Additionally, Ms. Moran relies upon the case of Cory v. Cory, 34,053 (La.App. 2 Cir. 11/1/2000), 771 So.2d 225.

In the Cory case, Ms. Cory filed for divorce on February 1,1995. At a hearing on February 28, 1995, the trial court made an award of interim support. The issue of final child support was not heard until October 19, 1999, over four and one-half years after the original hearing in February 1995. Ultimately, the trial court ordered Mr. Cory to pay final child support retroactive only to January 1996, not February 1, 1995, the date of judicial demand. Mr. Cory subsequently appealed and assigned as error the retroactivity of the final child support award. However, Ms. Cory did not' answer the appeal filed by Mr. Cory, |sand failed to raise the issue that the trial court’s award of final child support fell short of the date set forth by statute. The Second Circuit ultimately concluded that the trial court acted 'within its discretion in fixing an alternate date in lieu of the date of judicial demand.

After conducting research on this issue, we note that while similar, the facts set forth in this court’s opinion in McKenzie v. Thomas, 95-2226 (La.App. 1 Cir. 10/25/96), 678 So.2d 42, writ denied, 96-1855 (La.6/28/96), 681 So.2d 372 are distinguishable from those set forth in the case presently before us. The McKenzie case illustrates the application of La. R.S. 9:315.21 B(2). In McKenzie, there was no award of interim child support; therefore, the trial court, after concluding that Mr. Thomas was the father of the child, awarded child support retroactively. On appeal, this court found that “no good cause existed for not making the support award retroactive”, and further found “no abuse of discretion in the trial court’s determination that the support award be retroactive.” McKenzie, 95-2226 at p. 5, 678 So.2d at 46.

The above-cited cases relied upon by Mr. Moran, namely, Pellerin, Martin, and Falterman, decided by the Third and Fourth Circuits, are at odds with the Cory case, from the Second Circuit, cited by Ms. Moran, and also the trial court’s interpretation of La. R.S. 9:315.21. Based upon our review of the provisions of the statute, it is the opinion of this court that the intent of the statute is clear.

Section A of La. R.S. 9:315.21 mandates that except where good cause is demonstrated, a judgment awarding, modifying or revoking an interim child support allowance must be retroactive to the date of demand for same. Correspondingly, Section B(l) of La. R.S. 9:315.21 provides that, thereafter, a judgment that awards or denies final child support takes effect the date the judgment is signed and terminates an interim child support allowance as of that date. See Martin v. Martin, 98-165 (La.App. 3 Cir. 6/3/98), 716 So.2d 46; Pellerin v. Pellerin, 97-2085 (La.App. 4 Cir. 6/17/98), 715 So.2d 617, writ denied, 98-1940 (La.10/30/98), 727 So.2d 1167; Falterman v. 6Falterman, 97-192 (La.App. 3 Cir. 10/8/97), 702 So.2d 781, writ denied, 98-0076 (La.3/13/98), 712 So.2d 863.

However, Section B(2) of La. R.S. 9:315.21 mandates that if, on the date a judgment awarding final child support is rendered, an interim child support allowance is not in effect, then, in that event, the judgment awarding final child support must be retroactive to the date of demand for same except in those cases where good cause is demonstrated. As previously noted, this was the situation presented in McKenzie v. Thomas, 95-2226 (La.App. 1 Cir. 6/28/96), 678 So.2d 42, writ denied, 96-1855 (La.10/25/96) 681 So.2d 372.

Section C of La. R.S. 9:315.21 provides that a judgment subsequently modifying or revoking a final child support judgment must be retroactive to the date of demand for same except in those cases where good cause is demonstrated. See Lloyd v. Lloyd, 94-0421 (La.App. 1 Cir. 12/22/94), 649 So.2d 32.

Upon application of the foregoing precepts to the facts of this case, it is the conclusion of this court that the trial court erred when it revoked, on its own motion, the March 9, 1999 interim support allowance only to award final child support retroactive to January 8, 1999, the date the petition for divorce was filed. Initially, we note that while Ms. Moran sought child support in connection with the filing of her divorce petition, the record reflects that she did not judicially demand a determination of final child support until she filed her motion for same on November 15, 2000. The amount of final child support to which Ms. Moran was entitled was not fixed by the trial court until the hearing on April 25, 2001, and a judgment to this effect was not signed until May 24, 2001.

Pursuant to a plain reading of the statute, and in light of the fact that an interim child support allowance was in effect on the date of the judgment awarding final child support, the trial court’s award of final child support was effective only from the date the judgment was signed, and terminated the interim child support allowance as of that date. Thus, the trial court’s express revocation in the judgment of the interim child support allowance was unnecessary. Pursuant to La. R.S. 9:315.21 B(l), the May 24, 2001 judgment terminated the Interim child support allowance, and the final child support 17award became effective that date. For this reason, the trial court’s determination that the final child support award be retroactive to January 8, 1999, the filing date of the petition for divorce, is erroneous as a matter of law.

CONCLUSION

For the foregoing reasons, it was unnecessary for the trial court to revoke the earlier judgment setting forth an interim child support allowance. Mr. Moran shall pay final child support to Ms. Moran in the amount of $884.00 per month payable on the first and fifteenth days of each month. In accordance with La. R.S. 9:315.21 B(l), this award became effective as of May 24, 2001, the date the judgment was signed. Accordingly, there was no need for Mr. Moran to be given credit for those amounts he may previously have paid. In all other respects, the judgment of May 24, 2001, is hereby affirmed.

All costs associated with this appeal shall be assessed against plaintiff-appellee, Celeste Walther Moran.

JUDGMENT AMENDED, AND AS AMENDED, AFFIRMED.

      . On appeal, the Second Circuit noted that the trial court found good cause for applying child support retroactively to the date of judicial demand because it noted that Ms. Cory failed to present sufficient evidence of Mr. Cory’s income in 1995.


author: |i>KLINE, J.

text:
    SYSTEM FUELS, INC. v. John N. KENNEDY, Secretary of Department of Revenue, State of Louisiana.
    No. 2002 CA 1723.
    Court of Appeal of Louisiana, First Circuit.
    June 27, 2003.
    Writ Denied Nov. 14, 2003.

      Cheryl M. Kornick, New Orleans, Counsel for Appellee System Fuels, Inc.
    Robert G. Pugh, Shreveport, Counsel for Appellant Secretary, Department of Revenue, State of Louisiana.
    Before: FOIL, McCLENDON, and KLINE , JJ.

      . Hon. William F. Kline, Jr., retired, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

   |i>KLINE, J.

Defendant, the Louisiana Department of Revenue (“Department”), appeals the trial court’s grant of summary judgment in favor of plaintiff, System Fuels, Inc. (“System Fuels”), determining that its lease obligations, under various leases, did not constitute “borrowed capital” for Louisiana corporate franchise tax purposes. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

The Department conducted an audit of System Fuels’ books and records for the franchise tax years ending December 1988, 1989, 1990, 1992, 1998, and 1994 to determine whether System Fuels had paid the proper Louisiana corporate franchise tax for those years. As a result of the audit, the Department concluded that System Fuels had underpaid its corporate franchise taxes during the audited years.

The Department’s conclusion was based on the existence of five long-term lease agreements entered into by System Fuels during the 1970s. Three of the agreements were leases of immovable property, specifically, leases for fuel oil storage facilities. The remaining two agreements were bareboat charter agreements for the lease of water vessels to transport fuel oil, thus, they were leases of movable property. The Department maintained that System Fuels’ obligations to pay rent pursuant to these five leases constituted “borrowed capital” as defined by La. R.S. 47:603 and thus, should have been included in the company’s franchise tax base. Because the company excluded those amounts in calculating its franchise tax obligation, the Department claimed that System Fuels had underpaid its franchise taxes during the pertinent years and that the unpaid taxes, together with interest, totaled $459,401.67.

On December 10, 1998, System Fuels made payment under protest of the total amount allegedly owed and, pursuant to La. R.S. 47:1576, the Department placed the disputed amount in escrow. On January 8, 1999, System Fuels filed suit seeking recovery of the $459,401.67 paid under protest. Soon thereafter, pursuant to an agreement by the parties, an additional sum of $51,846.40 was also paid under protest by System Fuels and put into escrow. This additional |3sum pertained to alleged corporate franchise taxes owed for the franchise tax years ending December 1997,1998, and 1999.

On November 26, 2001, System Fuels filed a motion for summary judgment contending that its lease obligations did not constitute “borrowed capital” for Louisiana corporate franchise tax purposes. Argument on the motion was heard on April 8, 2002.

In its oral reasons for judgment, the trial court stated “that whatever reasons there may be when a lease is entered into[, other] ... than a conveyance of complete title, that it is still a lease.” The trial court determined that the contested agreements were “in fact leases” and based on the case of Traigle v. Gulf Coast Aluminum Corp., 422 So.2d 1190 (La.App. 1 Cir.1982), writ denied, 429 So.2d 143 (La.1983), it concluded that System Fuels’ obligations pursuant to the leases were not borrowed capital. Accordingly, summary judgment was rendered in favor of System Fuels on May 16, 2002. From this judgment, the Department appeals asserting the following two assignments of error:

1. The Honorable Court below erred when [it] held that a lease could not include “borrowed capital” and that there must be a conveyance of complete title to support an obligation to pay Louisiana Franchise Tax on “Borrowed capital.”
2. The Honorable Court below erred in that the indebtedness of System Fuels, as Lessee, to the interposed Lessor should not be included as “borrowed capital” in the franchise tax base of System Fuels pursuant to the Louisiana Tax Statutes [La. R.S. 47:601, et seq.].

STANDARD OF REVIEW

On appeal, summary judgments are reviewed de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Brumfield v. Gafford, 99-1712, p. 3 (La.App. 1 Cir. 9/22/00), 768 So.2d 223, 225. An appellate court thus asks the same questions as does the trial court in determining whether summary judgment is appropriate: whether there is any genuine issue of material fact, and whether the mover is entitled to judgment as a matter of law. Ferguson v. Plummer’s Towing & Recovery Inc., 98-2894, pp. 3-4 (La.App. 1 Cir. 2/18/00), 753 So.2d 398, 400.

A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine factual dispute. The motion should be |4granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. Naquin v. Louisiana Power & Light Company, 98-2270, p. 4 (La. App. 1 Cir. 3/31/00), 768 So.2d 605, 607, writ denied, 2000-1741 (La.9/15/00), 769 So.2d 546. In the present case, the facts are undisputed, thus we need only make a determination as to whether System Fuels is entitled to judgment as a matter of law.

RELEVANT LAW

In making this determination, we must look to the Louisiana corporate franchise tax statutes set forth in La. R.S. 47:601, et seq. Louisiana Revised Statute 47:601 specifically provides, in pertinent part:

A. Every domestic corporation and every foreign corporation, exercising its charter, or qualified to do business or actually doing business in this state, or owning or using any part or all of its capital, plant, or any other property in this state, subject to compliance with all other provisions of law, except as otherwise provided for in this Chapter shall pay an annual tax at the rate of $3.00 for each $1,000.00, or major fraction thereof on the amount of its capital stock, surplus, undivided profits, and borrowed capital, determined as hereinafter provided[.] (Emphasis added.)

Further, La. R.S. 47:602 A, states:

A. Taxable capital. Every corporation taxed under this chapter shall determine the amount of its issued and outstanding capital stock, surplus, undivided profits and borrowed capital as the basis for computing the franchise tax levied under this chapter and determining the extent of the use of its franchise in this state. (Emphasis added.)

The term “borrowed capital” is then defined in La. R.S. 47:603 as “all indebtedness of a corporation, subject to the provisions of this Chapter, maturing more than one year from the date incurred, or which is not paid within one year from the date incurred regardless of maturity date.”

DISCUSSION

The sole issue before us is a question of law which requires a determination of whether the obligations undertaken by System Fuels pursuant to various lease agreements constitute “borrowed capital” under the aforementioned laws. In making this determination, we are mindful that tax statutes are to be interpreted liberally in favor of the taxpayer. 5 Goudchaux/Maison Blanche, Inc. v. Broussard, 590 So.2d 1159, 1161 (La.1991). If the statute can reasonably be interpreted more than one way, the interpretation less onerous to the taxpayer is to be adopted. Id.

More specifically, words defining a thing to be taxed should not be extended beyond their clear import. Cleco Evangeline, LLC v. Louisiana Tax Commission, 2001-2162, p. 6 (La.4/3/02), 813 So.2d 351, 355. Absent evidence to the contrary, the language of the statute itself must clearly and unambiguously express the intent to apply to the property in question. Unless the words imposing the tax are expressly in the statute, the tax cannot be imposed. Id., 2001-2162 at p. 7, 813 So.2d at 355.

With these precepts in mind, we address the Department’s respective assignments of error.

Assignment of Error No. 1

The Department contends that the trial court erred in finding that the lease obligations did not constitute “borrowed capital” thus, mistakenly mandating that there must be a conveyance of title to support an obligation to pay the Louisiana franchise tax under the “borrowed capital” provisions. The Department concedes that the present case involves leases, wherein no titles are conveyed; however, it argues that the leases in question are actually “financed leases,” as opposed to “true leases.” According to the Department, any lease obligations owed pursuant to a “financed lease” constitute “borrowed capital” for Louisiana franchise tax purposes, even though no title has passed.

To buttress its argument, the Department relies upon the Louisiana Lease of Movables Act, which defines and distinguishes the terms “financed lease” and “true lease” in La. R.S. 9:3306 as follows:

(12)(a) “Financed lease” means a lease entered into prior to the time Chapter 9 of the Louisiana Commercial Laws (R.S. 10:9-101, et seq.) becomes effective under which:
(i) The lessee is obligated to pay total compensation over the base lease term which is substantially equivalent to or which exceeds the initial value of the leased property; and
(ii) The lessee is obligated to become, or has the option of becoming, the owner of the leased property upon termination of the lease for no additional consideration or for nominal consideration.
* * *
(26) “True lease” means (a) a lease entered into before January 1, 1990 under which:
(i) The lessee has no obligation to pay total compensation over the base lease term which is substantially equivalent to or in excess of the initial value of the leased property; or
(ii) The lessee does not have the option or obligation to become the owner of the leased property upon termination of the lease for no or nominal consideration.

(Emphasis added.)

While we recognize that these definitions differ, the Department does not specify, although we may surmise, why it contends that the definition of “borrowed capital” encompasses one but not the other. Nevertheless, we find the Department’s reliance on this Act to be unpersuasive for various reasons. Firstly, we note that, ordinarily, tax laws are sui generis. South Central Bell Telephone Co. v. Barthelemy, 94-0499, p. 6 (La.10/17/94), 643 So.2d 1240, 1243. Secondly, the Louisiana Lease of Movables Act only pertains to movables; however, three of the five leases at issue herein are for immovable property. Thirdly, regarding the leases on the movables (or even those on the immovables for that matter), the pertinent leases did not fit within the Act’s definition of a “financed lease” because the requirement that the lessee be given the option to purchase the leased property at the termination of the lease “for no consideration or for nominal consideration” is not met.

At the end of the lease terms, the immovable lease agreements provide that System Fuels has the option to buy the leased property. If System Fuels does choose to exercise its option to purchase the leased property, all three immovable lease agreements provide that the purchase price be the “fair market sales value” of the property at the time of the termination of the agreement. Similarly, the two movable lease agreements provide that System Fuels “shall” buy the leased property in certain narrowly defined circumstances, however, should those circumstances occur, the purchase price must be at a cost value or a fair market value of the leased property. Clearly, the purchase price provided for in all five of the lease agreements does not equate with the absence of ^consideration or nominal consideration required to constitute a “financed lease” under the Louisiana Lease of Movables Act.

Furthermore, we find the Department’s reliance on Louisiana Power & Light Company v. Parish School Board of the Parish of St. Charles, 597 So.2d 578 (La. App. 5 Cir.), unit denied, 604 So.2d 1316 (La.1992), is misplaced. In that case, the relevant issue was whether “quarterly payments of principal and interest stemming for a financing transaction structured in the form of a saleAease back [were] subject to the parochial lease tax.” St. Charles, 597 So.2d at 581. And although that case concerned a financing arrangement that was simply arranged to appear as a lease in form, its relevant facts are so distinguishable from the case at hand, that we are precluded from analogizing that arrangement to System Fuels’ lease agreements. Firstly, both parties in the St. Charles case agreed that the so-called leases were actually financing agreements. Secondly, there was substantial testimony that the parties considered and treated the agreement as a financing arrangement, not as a lease. St. Charles, 597 So.2d at 588. However, in the present ease, the affidavit of Keith Wheelahan, former vice-president of System Fuels, establishes that that System Fuels has treated the pertinent agreements as leases. Finally, the “lessee” in the St. Charles ease actually consumed the leased property thus, violating the requirements of La. C.C. art 2720 and becoming the owner of the property. Id. For these reasons, we cannot agree with the Department’s contention that the St. Charles case is dispositive in this instance.

We find the present case more akin to Traigle v. Gulf Coast Aluminum Corp., 422 So.2d 1190 (La.App. 1 Cir.1982), writ denied, 429 So.2d 143 (La.1983), which more proximately dealt with the issue at hand. Although Traigle specifically referenced the Industrial Inducement Statute, it addressed whether the lease payments made by the lessee of a manufacturing facility to the lessor, Calcasieu Parish, said lease payments paying the principal and interest on bonds issued by the Parish to finance the facility, constituted borrowed capital for Louisiana corporate franchise tax purposes. In Traigle, 422 So.2d at 1191-1193, lsthis court adopted the trial court’s reasons for judgment, which provided, in part, as follows:

Pursuant to the provisions of La. R.S. 39:991 et seq. (Louisiana’s Industrial Inducement Statute), the Parish of Cal-casieu (Parish) and GCA entered into agreements whereby the Parish would issue Industrial Development Bonds, the proceeds of which would be and were used to construct a manufacturing facility to be leased to GCA. The lease payments would be used to pay the principal of and interest on the bonds as they came due. The Collector has filed this suit to collect franchise tax which it maintains GCA owes. The Collector’s position, basically, is that the bond proceeds used by the Parish to construct the manufacturing facility should have been included on the books of GCA to establish its franchise tax basis. The Collector adopted various arguments: that the lease transaction was actually a sale; that the bond proceeds constitute “borrowed capital” by GCA[.]
The comprehensive Lease Agreement entered into between the parties reflects that the Parish, as Lessor, is the owner of the rights in the tracts acquired and that GCA is the lessee.
The Collector, therefore, has adopted the position that La. R.S. 39:991 does not authorize the creation of a genuine lease, but rather authorizes a method whereby corporations can finance and construct industrial plants in their own name.
... [However, the] Parish is the owner of the tracts upon which the plant was constructed.
The Collector has [further] taken the position that the municipal bonds issued in connection with the construction of GCA’s Calcasieu Plant are in reality borrowed capital of GCA within the meaning of the corporate franchise tax Statute. Such a position requires this Court to treat GCA as the owner of the new facility and dismiss the Parish as a mere interposed party.... [T]his Court cannot accept the Collector’s argument.

Thus, the implication is that where there is a “genuine lease,” as opposed to a disguised credit sale, the lease obligations are not to be considered “borrowed capital” for franchise tax purposes. Consequently, we decline to hold that all payments made pursuant to agreements arranged in lease form will never constitute “borrowed capital” as we are always compelled to recognize the substance of the transaction over its form, in determining the applicability of tax statutes. McNamara v. Electrode Corporation, 418 So.2d 652, 662 (La.App. 1 Cir.), writ denied, 420 So.2d 986 (La.1982). Hence, the taxpayer cannot defeat the collection of taxes by either the wording, form, or label of a contract. Id. However, we do find that when a “true” or “genuine” lease Lexists, the lease obligations created thereby do not constitute “borrowed capital” for Louisiana franchise tax purposes.

In the present case, the Department has offered no viable evidence that the pertinent leases in the present ease are not “true” or “genuine” leases. As previously noted, System Fuels did not acquire title to the leased property. Moreover, at the end of the lease terms, should System Fuels buy the leased property, it must do so for either the cost or fair market sales value of the property at the time of the lease’s termination. Accordingly, we find the Department’s first assignment of error to be without merit.

Assignment of Error No. 2

In a second, though closely-related, assignment of error, the Department contends the “indebtedness” of System Fuels under the lease agreements should be construed as “borrowed capital” under the language of La. R.S. 47:603.

The Department does not dispute System Fuels’ contention that the term “indebtedness” has been jurisprudentially defined as “an existing, unconditional and legally enforceable obligation to pay,” citing Tomlinson v. 1661 Corp., 377 F.2d 291, 295 (5 Cir.1967). Rather, it maintains that System Fuels’ obligation to pay rent pursuant to the leases was “absolute and unconditional” and that “such payments ... due one year from inception” constituted “borrowed capital” as defined by La. R.S. 47:603.

The Department bases its position on the presence of so-called “hell or high water” clauses contained within the leases. According to the Department, the language of these “hell or high water” clauses makes it “self-evident ... that System Fuels [was] obligated to pay the indebtedness due, regardless of any conceivable event which might occur. All sums due one year from inception are, therefore, ‘borrowed capital’ and, as such, are subject to the Louisiana Franchise Tax.” We must respectfully disagree with the Department’s position.

Initially, we note that the Department necessarily limits its argument to clauses contained within the three leases pertaining to immovable property |inbecause the two movable lease agreements contain no such comparable language.

Additionally, in Angelle v. Energy Builders Company, Inc., 496 So.2d 509, 513 (La.App. 1 Cir.1986), this court recognized the following observations by a doctrinal writer:

It is also common for personal property leases to contain so-called “hell or high water” covenants under which the lessee unconditionally agrees to make lease payments to the lessor notwithstanding any foreseeable or unforeseeable circumstances. While such “hell or high water” covenants are generally enforceable in Louisiana, arguably they may not be enforced in situations in which a lessee lawfully withholds rental payments as a result of the lessor’s failure to provide the lessee with peaceable possession of the leased equipment over the lease term. The right of peaceable possession guaranteed by Civil Code article 2692(3) as a matter of public policy may not be waived. Willenzik, Personal Property Leases in Louisiana, 44 La. L.Rev. 755, 780 (1984), footnotes omitted.

Thus, a “true” or “genuine” lease, by its very nature, is never an unconditional obligation to pay because a lease is a bilateral, or synallagmatic, contract whereby the lessee and the lessor obligate themselves reciprocally, so that the obligation of each party is correlative to the obligation of the other. La. C.C. art.1908. Louisiana Civil Code article 2692 establishes that, among other duties, a lessor is bound to cause the lessee to be in peaceable possession of the property during the term of the lease. The duties of a lessee are set forth in La. C.C. art. 2710, et seq. and include the obligation to pay the rent at the terms agreed on. As previously noted, the lessee’s right to peaceable possession is a matter of public policy that cannot be waived. Therefore, should the lessor fail to provide the lessee with peaceable possession, the lessee’s obligation to pay rent ceases, and no “hell or high water” clause can be relied upon to resurrect that obligation.

Finally, even if the term “indebtedness,” as it is used in La. R.S. 47:603, did not require that an obligation be “unconditional,” the Department’s argument that System Fuels’ lease obligations constituted “indebtedness” must still fall. Louisiana Revised Statute 47:603 specifically defines “borrowed capital” as “indebtedness ... maturing more than one year from the date incurred, or which |nis not paid within one year from the date incurred regardless of maturity date.” The court in Gentry v. Bodan, 347 F.Supp. 367, 375 (W.D.La.1972), noted:

The consideration given for rent is the right to occupy the premises. If the right to occupy terminates, then the obligation to pay rent ceases, and no debt is created until the time stipulated for the payment arrives. Standard Oil Co. of New Jersey v. Elliott, 80 F.2d 158 (4th Cir.1935); In re Roth & Appel, 181 F. 667, 669 (2d Cir.1910). Therefore, if one is obligated to pay rent in the future, the debt does not arise until the time for payment arrives.

(Emphasis added.) See Shreveport Plaza Associates Ltd. Partnership v. L.R. Resources II, 557 So.2d 1067, 1071 (La.App. 2 Cir.1990); see also Union Bank v. Cottonport Ins. Exchange, 93-47 (La.App. 3 Cir. 1/12/94), 630 So.2d 975, 977, unit denied, 94-0721 (La.5/6/94), 637 So.2d 1049; Richard v. Broussard, 495 So.2d 1291, 1293 (La.1986). Consequently, when periodic rental payments exist under a lease agreement, like those at issue herein, no debt is incurred until payment becomes due. In the present case, the obligation to pay rent is incurred every six months at which time the payment also becomes due, thus such obligations do not mature “more than one year from the date incurred.” What is more, under the lease agreements, rental payments cannot be paid more than one year from the date incurred without the lessee defaulting. Hence, we also find the Department’s second assignment of error to be unpersuasive.

CONCLUSION

For the foregoing reasons, the trial court’s grant of summary judgment in favor of System Fuels, Inc. is affirmed. The Louisiana Department of Revenue is cast with the costs of this appeal in the amount of $698.55.

AFFIRMED.


author: J^McCLENDON, J. _jjFOIL, J.,

text:
    REGIONS BANK v. AUTOMAX USA, L.L.C.
    No. 2002 CA 1755.
    Court of Appeal of Louisiana, First Circuit.
    June 27, 2003.
    Writ Denied Nov. 7, 2003.

      Before: FOIL, McCLENDON, and KLINE, J.J.

      . Hon. William F. Kline Jr., retired, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

   J^McCLENDON, J.

This is an appeal from a judgment approving the amount of attorney fees paid by the receiver to his law firm for services rendered on behalf of an automobile business placed in receivership. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Plaintiff, Regions Bank (Regions), filed a petition on February 24, 2000, requesting the ex parte appointment of a temporary receiver for defendant, Automax, U.S.A., L.L.C. (Automax), a business engaged in the sale of used automobiles. Regions asserted in its petition that it was one of the largest creditors of Automax, that Automax moved vehicles used as collateral the night before Regions attempted to seize them, that the principal of Auto-max fled the state after cashing out the bank accounts of Automax, that Automax was essentially out of business with no one controlling its remaining assets, and that because of fraud or breach of trust, the appointment of a temporary receiver was required. Regions further requested that Barry W. Miller be appointed the temporary receiver of Automax, pursuant to LSA-R.S. 12:151 C. Miller was appointed temporary receiver of Automax and subsequently appointed permanent receiver by judgment dated March 20, 2000.

Between April 2000 and July 2001, Miller filed seven ex parte applications for interim compensation, requesting fees for professional |sservices rendered by his law firm, computed on an hourly basis, all of which were approved by the trial court. A final application for compensation was filed on September 12, 2001, together with the receiver’s final report and final account and request for termination of the receivership. This last application brought the total amount of attorney fees requested to $191,185.00. Regions objected to the final application for compensation, having filed a motion to set and determine the reasonableness of the receiver’s fees. The matters were consolidated for hearing and on January 29, 2002, the trial court signed its Final Order of Receivership, approving all applications and requests for reimbursements of costs and expenses filed by the receiver, including the last application for attorney fees, further ordering that all remaining funds of the receivership be placed in the registry of the court and ordering that the receivership of Automax be terminated and the receiver relieved of any further duties and obligations under the terms of the receivership.

It is from this judgment that Regions appealed asserting six assignments of error, all relating to the reasonableness of the compensation paid to the receiver.

DISCUSSION

There was no dispute over the appointment of the receiver for Automax and, in fact, Regions recommended that Miller be appointed receiver. Moreover, in its motion to set the reasonableness of the receiver’s fees, Regions states that the “[r]eeeiver and his staff have done a good job in liquidating the assets of the consolidated entities and setting up an ^appropriate procedure to bring claims before the Court for ranking and payment. In addition, Receiver has dealt with numerous complaints and phone calls from the public, state and federal police and regulatory agencies concerning this matter.” Regions later stated that it recognized “that while the Receiver has done a good and sometimes excellent job in liquidating this problematic series of entities, receiverships are not in and of themselves for the payment and satisfaction of the receiver. The Receiver has never sought court approval for his fees as administrator, but has simply submitted ex parte payment requests.”

Thus, Regions does not complain about the quality of the work by the receiver. Regions does assert, however, that the amount of attorney fees paid to Miller was unreasonable and that the fees should not have been approved on an interim ex parte basis. With regard to the reasonableness of the attorney fees, Regions claims that the receiver, as the attorney for the receivership, was compensated for services administrative in nature and for services that were duplicative and unnecessary, and that the receiver’s compensation was too great in comparison to the funds received by the receivership.

The trial court has much discretion in fixing an award of attorney fees, and its award will not be modified on appeal absent a showing of an abuse of discretion. In re Succession of Bankston, 2002-0548, p. 7 (La.App. 1 Cir. 2/14/03), 844 So.2d 61, writ denied, 2003-0710 (La.5/9/03), 843 So.2d 400; Gulf Wide Towing, Inc. v. F.E. Wright (U.K.) Ltd., 554 So.2d 1347, 1355 (La.App. 1 Cir.1989).

An attorney fee must be “reasonable.” The amount is regulated by the Rules of Professional Conduct. Ducote v. Perry’s Auto World, Inc., 98-1972, p. 6 (La.App. 1 Cir. 11/5/99), 745 So.2d 229, 233. Pursuant to | KRule 1.5(a) of the Rules, factors to be considered in determining the reasonableness of a fee include:

(1) The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
(2) The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
(3) The fee customarily charged in the locality for similar legal services;
(4) The amount involved and the results obtained;
(5) The time limitations imposed by the client or by the circumstances;
(6) The nature and length of the professional relationship with the client;
(7) The experience, reputation, and ability of the lawyer or lawyers performing the services; and
8) Whether the fee is fixed or contingent.

An analysis of the factors pertinent to a determination of reasonableness is extremely fact intensive. At issue ultimately is the reasonable value of the services rendered and value received by the client. Bankston, 2002-0548 at pp. 5-6, 844 So.2d at 64-65. Thus, at issue in this matter is the value of the services by Miller to the receivership.

It is undisputed that the Automax receivership was a difficult one. The principal of Automax fled the state taking with him what cash was available in the company’s bank accounts, as well as most of Automax’s books and records. Former Automax employees were not available to aid the receiver and, in fact, apparently did what they could to hinder the receivership. Also, what records were available, were seized by the Louisiana State Police as well as the hard drives and software of the computers of Automax. The hard drives were sent to the Federal Bureau of | (¡Investigation for copying and recovery, and remained in the possession of the FBI for more than a year. Thus, the records of Automax were not readily available and the receiver had to reconstruct them.

The receiver sold the vehicles that Auto-max still had in its possession and attempted to retrieve and sell vehicles in the possession of former employees of Automax. The receiver also made attempts to collect on notes due from customers of Automax. A collection agency and a collection attorney were employed, both on a contingency basis, to aid in the collection of the notes. The potentially collectable notes were eventually sold.

Furthermore, Automax did not forward taxes and registration to the State of Louisiana for many of the vehicles it sold and Automax also did not forward a number of the customers’ warranty payments to the respective warranty providers. Thus, Au-tomax created numerous title and warranty problems. The receiver was required to negotiate with over two hundred customers of Automax to either return the vehicles involved and cancel the notes or reduce the note amounts because of the breaches of duties or agreements by the former management of Automax.

Additionally, the Louisiana Used Motor Vehicle and Parts Department and the Office of Motor Vehicles would not issue title and registration to certain customers who purchased vehicles in good faith because of Automax’s actions prior to the receivership. This created what the receiver called a “standoff’ between the customers and various state agencies, resulting in loss of money in loan collections and time expended because of the uncoopera-tiveness of the state agencies involved.

The Internal Revenue Service, the Louisiana Department of Revenue and Taxation, and the Louisiana Department of Labor contacted the receiver regarding past due returns. A federal tax lien was filed against Automax.

|7The receiver determined what was the best course of action to avoid expensive and protracted litigation and settled disputes in what it believed was the most expeditious and inexpensive manner. The record shows that by the end of the receivership, the receiver had collected $297,056.96.

At the hearing on the motion to set the reasonableness of the attorney fees, Regions declined to cross-examine Miller or Suzanne Sasser, an associate of Miller also employed in this matter. Nor did Regions offer any evidence to contradict or challenge the billing statements filed with the trial court in support of the applications for compensation.

Region’s argument seems to be that the amount of the attorney fees, in light of the assets collected, is unreasonable per se. We reject that argument. Preserving the assets of the receivership is one factor in determining the reasonableness of the attorney fees under the particular facts of this case.

The receiver did hire his own law firm to work out these many problems and did so without court approval. While it is troublesome that in every other instance when the receiver sought to hire outside help he first requested authorization from the trial court, there is no statutory requirement that he do so. The legal work performed was necessary and the fees of an outside law firm most likely would have increased the expenses to the receivership. Moreover, the record indicates that the parties knew that Miller would be rendering legal services to the receivership. The receiver used his own staff to reconstruct the financial status of the companies rather than hiring a separate accounting firm. The receiver did not seek | «compensation for any of the time spent by his staff to do this work, which included work by the firm’s paralegal. Nor did Miller ask for fees or compensation as the receiver of the Auto-max entities.

Miller’s services clearly benefited the receivership and generated funds for distribution to the creditors. Considering the complexities of this matter and the factors of Rule 1.5(a), we cannot say that the attorney fees approved by the trial court were unreasonable. Because the trial court has much discretion in setting a reasonable attorney fee under the circumstances of a particular case, we cannot say, after a thorough review of the record, that the amount approved was an abuse of that discretion.

Lastly, Regions contends that the trial court erred in allowing the receiver to be compensated on an interim ex parte basis, without hearing or service upon creditors. Again, while this Court may question why the receiver did not provide notice to the creditors of Automax of his requests for interim compensation as the attorney for the receivership, there is nothing in the receivership laws that provides that he must.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed against Regions Bank.

AFFIRMED.

FOIL, J., dissents and assigns reasons.

_jjFOIL, J.,

Dissents.

I respectfully dissent.

I feel that the fees were excessive. I would remand to the trial court for a full hearing on the proper amount of the fees.

      . LSA-R.S. 12:151 C provides:
      The court may, ex parte, pending trial, (1) appoint a temporary receiver whose authority shall cease upon appointment of a receiver after trial or upon dismissal of the proceeding, (2) on the applicant furnishing security in the amount fixed by the court, enjoin the corporation and its directors, officers, agents and shareholders from disposing of its property or changing the status of its affairs to the injury of the applicant, and (3) stay proceedings by other persons against the corporation’s property.

      .Hereinafter, Automax refers collectively to Automax U.S.A., L.L.C., Automax U.S.A., Inc., and Golden Goose Acceptance, L.L.C., three interrelated entities that were determined by the trial court to constitute one single business enterprise.

      . The eight applications for compensation requested compensation for professional services provided to the receivership from February 24, 2000 through August 31, 2001, and also included requests for reimbursement for costs and expenses totaling $2,884.48.

      . The receiver filed a motion to dismiss the appeal asserting that it was not a final judgment and that plaintiff lacked standing to appeal. The motion to dismiss was denied and the appeal maintained by this Court on February 10, 2003.

      . In the early case of Villere v. New Orleans Pure Milk Co., 48 So. 162, 171-72, 122 La. 717, 743 (1908), the supreme court stated:
      It has never been the practice in this state in insolvency proceedings or proceedings under receiverships for the receiver to ask leave of the court to employ an attorney or to give its sanction to the employment of any particular person. The right to obtain the services of counsel and to select the counsel has always been recognized as matters of right.


author: J^CLAIBORNE, J.

text:
    Charles W. JENKINS v. RECOVERY TECHNOLOGY INVESTORS.
    No. 2002 CA 1788.
    Court of Appeal of Louisiana, First Circuit.
    June 27, 2003.
    William S. Marshall, Jr., Covington, Counsel for Plaintiff-Appellee, Charles W. Jenkins.

      Frank E. Brown, III, Baton Rouge, Counsel for Defendants-Appellants, Recovery Technology Investors and Louisiana Workers’ Compensation Corporation.
    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.

   J^CLAIBORNE, J.

Plaintiff, Charles W. Jenkins, filed a disputed claim for compensation against his employer, Recovery Technology Investors, and Louisiana Workers’ Compensation Corporation (LWCC). Judgment was rendered June 19,1997, by Office of Workers’ Compensation Judge (WCJ) Delos R. Johnson, Jr. against Recovery Technologists, Inc., ordering payment of weekly compensation benefits and medical expenses to the claimant, Charles W. Jenkins (Jenkins). That judgment does not mention LWCC. The judgment further held that the defendant was not arbitrary, capricious, or without probable cause in handling the claim.

Subsequently, the defendant’s insurer, LWCC, began making payments, but eventually converted the payments to monthly supplemental earnings benefits and several months later, unilaterahy terminated payments altogether. After a trial before WCJ Elizabeth A. Warren, the following judgment, dated April 18, 2002, was rendered and signed:

This matter came on for trial on the merits on April 8, 2002.
PRESENT WERE:
William S. Marshall, Jr., Esq. Attorney for/and Charles Jenkins
Frank E. Brown, III, Esq. Attorney for Recovery Technology Investors
After reviewing the applicable law, the entire record, the evidence introduced at trial; and after listening to the trial testimony, the court renders the following judgment:
IT IS ORDERED, ADJUDGED, AND DECREED that claimant is entitled to $8,000.00 in penalties pursuant to La. R.S. 23:1201(G) for LWCC’s failure to pay benefits pursuant to the June 19, 1997 judgment, subject to a credit for any amount tendered by LWCC at or before trial;
LIT IS ORDERED, ADJUDGED, AND DECREED that claimant is entitled to $2,000.00 in penalties pursuant to La. R.S. 23:1201(E) and (F) for LWCC’s failure to timely reimburse claimant’s counsel for Dr. Mark Hontas’ $99.00 bill incurred on January 21, 2001, subject to a credit for any amount tendered by LWCC at or before trial;
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that claimant is entitled to $16,000.92 in back benefits from date of termination through trial, subject to a credit for any amount tendered by LWCC at or before trial;
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that elaim-ant is entitled to $876.18 in interest on the back due compensation;
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that claimant is entitled to weekly benefits in the amount of $205.14 until such time as modification is appropriate under La. R.S. 23:1310.8.
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that claimant is entitled to a total of $10,000.00 in attorney fees pursuant to La. R.S. 23:1201(F) and (G) and La. R.S. 23:1201.2.
READ RENDERED AND SIGNED this 18th day of April 2002 in Covington, Louisiana.

While the judgment contains decre-tal language, it does not order the payment of money, and it does not identify the defendant who is east in judgment. The failure to name the defendant against whom the judgment is rendered in a case with multiple defendants makes the judgment fatally defective, because one cannot discern from its face against whom it may be enforced. See Scott v. State of Louisiana, 525 So.2d 689, 691 (La.App. 1st Cir. 1988), unit denied, 558 So.2d 1128 (La.1990).

A valid judgment must be precise, definite and certain. Laird v. St. Tammany Parish Safe Harbor, 2002-0045, p. 3 (La.App. 1st Cir.12/20/02), 836 So.2d 364, 365; Davis v. Farm Fresh Food Supplier, 2002-1401, p. 4 (La.App. 1st Cir.3/28/03), 844 So.2d 352, 353. A final appealable judgment must contain decretal language, and it must name the party in favor of whom the ruling is ordered, the party against whom the ruling is 1 ¿ordered, and the relief that is granted or denied. See Carter v. Williamson Eye Center, 2001-2016 (La.App. 1st Cir.11/27/02), 837 So.2d 43.

In the present case the employer is identified in the caption of the judgment as “Recovery Technology Investors,” although its proper name may be “Recovery Technologists, Inc.,” as shown in the original judgment of June 19, 1997. While the April 18, 2002 judgment, which is presently before us, mentions the failure of LWCC to pay benefits, LWCC was not mentioned in the June 19, 1997 judgment. It is not clear from the 2002 judgment whether penalties and attorney fees are cast against LWCC or against the defendant named in the caption of the case, or any defendant at all. It merely recites that the plaintiff is entitled thereto. Thus, the judgment in this case is not a final appealable judgment.

Since this court lacks jurisdiction in the absence of a final appealable judgment, the appeal is dismissed and the matter is remanded for reformation of the judgment. Once a proper judgment has been signed, a new appeal may be filed. Although in the normal course of events this would entail considerable delay, in light of the goals of the Workers’ Compensation Act to provide a speedy resolution to workers’ compensation claims, we hereby authorize either party to request that this case be placed on the first available docket once the record of the new appeal is lodged and briefs are filed. See Davis v. Farm Fresh Food Supplier, 2002-1401 at p. 4, 844 So.2d at 354.

APPEAL DISMISSED AND REMANDED.

      . The names "Recovery Technology Investors” and "Recovery Technologists, Inc.” are used interchangeably in the record, sometimes in the same document.

      . The amount to be paid as medical expenses is not mentioned in the judgment, but otherwise the judgment is enforceable.

      .La. R.S. 23:1310.5(F) requires that the published court of appeal opinion identify the office of workers’ compensation district from which the appeal was taken and the name of the WCJ who rendered the judgment. The WCJ was Honorable Elizabeth A. Warren of the Office of Workers' Compensation Administration, District 06.