author: HAWKES, J.

text:
    Tony MURPHY, et al., Appellant, v. Kenneth W. FORTUNE Sheriff of Jefferson County, Appellee.
    No. 1D01-3290.
    District Court of Appeal of Florida, First District.
    Oct. 28, 2003.
    Dennis E. Boothe, of Dennis E. Boothe, P.A., Tallahassee, for Appellant.
    No appearance for Appellee.
   HAWKES, J.

The facts of this forfeiture action are not contested. The Jefferson County Sheriffs Department seized $30,180.00 from Appellant, Tony Murphy, pursuant to section 932.703(2)(a), Florida Statutes (2000) (the Florida Contraband Forfeiture Act), during a traffic stop. Murphy was given a “Notice of Seizure” which advised him his money was seized by the Jefferson County Sheriffs Department, and it was necessary to file a written request for a post-seizure adversarial hearing with the Sheriffs Department within fifteen days if he wished to contest the seizure of his money. This hearing was to determine whether probable cause existed to believe the currency was being used in violation of the Florida Contraband Forfeiture Act.

Complying with the instructions of the “Notice of Seizure,” Murphy timely requested a hearing. However, not only did the Sheriffs Department fail to hold the hearing within the required time-period, it failed to notice the hearing or respond to Murphy’s request in any way. After making several additional attempts to contest the forfeiture, Murphy filed a complaint seeking the return of his money. The Sheriffs Department filed a motion to dismiss the complaint, and an evidentiary hearing was held. At the conclusion of this hearing, the trial court entered an order making findings of fact and dismissing Murphy's complaint with prejudice.

On appeal, Murphy argues that, because he timely requested a post-seizure adversarial hearing, which the Sheriffs Department failed to notice and hold within ten days of his request, his due process rights were violated, and he is entitled to the return of his seized currency. Based on the uncontested record evidence and the trial court’s findings made at the conclusion of the evidentiary hearing, we agree and reverse.

Florida law is clear. Once a post-seizure adversarial hearing is requested, the seizing agency must set and notice the hearing, and the hearing must be held within ten days after the request is received or as soon as practicable thereafter. See § 932.703(2)(a), Fla. Stat. Any exception to the rule that a post-seizure adversarial hearing must be held within ten days of the claimant’s request, as contemplated by the language “or as soon as practicable thereafter,” is limited to extraordinary circumstances. See Chuck v. Forfeiture of 380,015.00 in U.S. Currency, 27 Fla. L. Weekly D2140, — So.2d -, 2002 WL 31159461 (Fla. 3d DCA Sept.30, 2002). The Florida Contraband Forfeiture Act does not authorize government entities to delay acting on a claimant’s request for an adversarial hearing for reasons such as internal scheduling, agency, attorney, or officer workload, or agency or police procedures, which result in the court’s inability to schedule a timely hearing. See Dep’t of Highway Safety and Motor Vehicles v. Metiver, 684 So.2d 204 (Fla. 4th DCA 1996). Failure to recognize the government’s burden would effectively neutralize the mandate that the hearing must be held within ten days of the request. See id. at 205.

An unreasonable delay between the claimant’s request for a hearing and the hearing being held constitutes a denial of due process. See Crepage v. City of Lauderhill, 774 So.2d 61 (Fla. 4th DCA 2000); see also Cochran v. Harris, 654 So.2d 969 (Fla. 4th DCA 1995) (affirming dismissal of forfeiture proceedings due to 23-day delay between tenth day after request for hearing and date on which hearing could have occurred); Metiver, 684 So.2d at 206 (affirming order holding five-day delay between tenth day after claimant requested hearing on forfeiture and date on which hearing occurred did not comply with Florida Contraband Forfeiture Act requirements that hearing occur within ten days or as soon as practicable thereafter, and requiring State to return currency seized during traffic stop).

Forfeitures are not favored in law or equity, thus forfeiture statutes are strictly construed. See In re Forfeiture of 1993 Lexus ES 300, VIN: JT8VK13T9P0196573, 798 So.2d 8 (Fla. 1st DCA 2001); Town of Oakland v. Mercer, 851 So.2d 266, 269 (Fla. 5th DCA 2003) (holding “[d]ue process mandates that the provisions of the forfeiture act be strictly interpreted in favor of the persons being deprived of their property.”). Here, at the expiration of the ten days following Murphy’s request for a hearing, the Sheriffs Department’s lawful authority to retain the seized currency expired.

The fact that federal officials later sought to pursue forfeiture is irrelevant. The Sheriffs Department advised Murphy his money was being seized pursuant to Florida law. Therefore, the Sheriffs Department was required to strictly comply with Florida law. They failed to do so. Their failure to act prior to the expiration of the applicable time period left them with only one option — to immediately return the money to Murphy. To hold otherwise would result in a denial of Murphy’s right to due process. The trial court’s order dismissing Murphy’s complaint with prejudice is reversed, and the case remanded for the trial court to enter an order requiring the Jefferson County Sheriffs Department to return $30,180.00 in U.S. currency to Murphy.

REVERSED and REMANDED with instructions.

VAN NORTWICK, and PADOVANO, JJ., Concur.

      . The Sheriffs Department moved to dismiss Appellant’s complaint on grounds that the trial court lacked jurisdiction, because the currency had been seized at the request of the United States Drug Enforcement Administration pursuant to federal law. However, federal proceedings were initiated only after the applicable time periods of Florida law had expired.


source: Caselaw Access Project

license: Public Domain

text:
    Chad Samuel NEUMANN, former husband, Appellant, v. Kenna-Joy NEUMANN, former wife, Appellee.
    No. 1D03-0198.
    District Court of Appeal of Florida, First District.
    Oct. 28, 2003.

      Denise Watson, Jacksonville, for Appellant.
    Alexa Alvarez, Fernandina Beach, for Appellee.
   HAWKES, J.

The Former Husband appeals from a Final Order on his Motion for Contempt and Enforcement. The Former Husband argues the trial court’s modification of his visitation schedule, in the absence of pleadings requesting such a modification, constituted an abuse of discretion and denial of due process. We agree, and reverse.

It is well settled that an order adjudicating issues not presented by the pleadings, noticed to the parties, or litigated below denies fundamental due process. See Moody v. Moody, 721 So.2d 731 (Fla. 1st DCA 1998) (reversing an order transferring child custody and canceling husband’s requirement to pay child support where the notice for hearing stated that the court would entertain a motion for contempt); Thomas v. Harris, 634 So.2d 1136 (Fla. 1st DCA 1994) (reversing change of child custody due to deleterious effect of tobacco smoke on child where notice of hearing specified issue raising question of custody change was poor progress in school).

Here, the only issue before the trial court was the Former Husband’s Motion for Contempt and Enforcement. Neither the pleadings nor the notice of hearing mention or request the Former Husband’s visitation schedule be modified. We conclude that by adjudicating an issue not presented by the pleadings, the trial court violated the Former Husband’s right to due process and abused its discretion.

Accordingly, the visitation schedule in place at the time Former Husband filed his Motion for Contempt and Enforcement is restored, and the trial court’s order is

REVERSED.

VAN NORTWICK, and PADOVANO, JJ., concur.


author: PER CURIAM.

text:
    S/G CONSTRUCTION, INC., Appellant, v. The BOARD OF TRUSTEES OF OKALOOSA—WALTON COMMUNITY COLLEGE, Appellee.
    No. 1D03-2659.
    District Court of Appeal of Florida, First District.
    Oct. 28, 2003.
    Bert Moore, Niceville, and James E. Moore of The Moore Law Firm, Niceville, for Appellant.
    Joseph D. Lorenz, Ft. Walton Beach, for Appellee.
   PER CURIAM.

We dismiss this appeal for lack of jurisdiction and for lack of standing. The appellant’s notice of appeal, filed June 19, 2003, was not timely as to the Final Judgment, entered on February 14, 2003. See Fla. R. Civ. P. 1.530(b); Fla R.App. P. 9.020(h). Further, the March 7, 2003 Amended Final Judgment did not extend the time to file a notice of appeal challenging the issues resolved by the Final Judgment. See St. Moritz Hotel v. Daughtry, 249 So.2d 27, 29 n. 1 (Fla.1971); Beal Bank, S.S.B. Inc. v. Sherwin, 829 So.2d 961 (Fla. 4th DCA 2002); First Continental Corp. v. Khan, 605 So.2d 126 (Fla. 5th DCA 1992). Finally, the appellant is not adversely affected by the Amended Final Judgment and therefore lacks standing to appeal that judgment. See Consolidated City of Jacksonville v. Buffkin, 768 So.2d 1253 (Fla. 1st DCA 2000). The cross-appeal is hereby dismissed as untimely.

ERVIN, ALLEN and LEWIS, JJ., concur.


author: WALLACE, Judge.

text:
    Richard Edward DIBBLE, III, Appellant, v. Rhoda Leigh BOWLIN, Appellee.
    No. 2D03-2446.
    District Court of Appeal of Florida, Second District.
    Oct. 29, 2003.
    R.J. Ferraro, III, of Ferraro & Ferraro, P.A., Stuart, for Appellant.
    Kim Kickliter Seavey of Nancy McRo-berts Parham, P.A., Tampa, for Appellee.
   WALLACE, Judge.

Richard Edward Dibble, III (the Father), appeals the emergency ex parte order granting temporary custody of their two children to Rhoda Leigh Bowlin (the Mother) and denying the Father visitation. Because the Mother’s motion failed to allege the requisite grounds that would have authorized the trial court to enter an order on an emergency motion for a temporary change of custody without reasonable notice to the Father, we reverse. See Loudermilk v. Loudermilk, 693 So.2d 666, 667-68 (Fla. 2d DCA 1997).

We remand to the trial court for a full evidentiary hearing in which the burden shall be on the Mother to prove the grounds warranting a modification of temporary custody in the manner she requested. See Williams v. Williams, 845 So.2d 246, 249 (Fla. 2d DCA 2003). The Father, too, shall be permitted to present evidence, and the trial court shall consider the children’s best interests. See id. at 248-49.

The hearing shall take place within twenty days of the issuance of our mandate unless both parties agree to hold the hearing at a later date or to have it coincide with the “final hearing on custody and visitation” that was contemplated by the ex parte order. The emergency order shall remain in effect until an evidentiary hearing is held in a manner consistent herewith. See Crooks v. Crooks, 657 So.2d 918, 919 (Fla. 4th DCA 1995).

Reversed; remanded with directions.

ALTENBERND, C.J., and SILBERMAN, J., concur.


text:
    Leon Andrew JONES, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-3335.
    District Court of Appeal of Florida, Third District.
    Nov. 5, 2003.
    Bennett H. Brummer, Public Defender, and Valerie Jonas, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, Melissa Vaughan Rubin and Consuelo Maingot, Assistant Attorneys General, for appellee.
    Before SCHWARTZ, C.J., and LEVY, and GODERICH, JJ.
   CONFESSION OF ERROR

PER CURIAM.

As the State properly concedes, based on the totality of the circumstances surrounding the imposition of the defendant’s sentence, it cannot rebut the presumption of judicial vindictiveness that arose. Wilson v. State, 845 So.2d 142, 156 (Fla.2003). Therefore, we reverse the defendant’s sentence and remand for resentencing before a different trial judge. Wilson, 845 So.2d at 159.

Reversed and remanded.


author: |, VICTORY, J.

text:
    Jody and Lora BORDELON Individually, and on Behalf of their Minor Child, Brandon, v. MEDICAL CENTER OF BATON ROUGE and Andrew T. Zaruski, M.D.
    No. 2003-C-0202.
    Supreme Court of Louisiana.
    Oct. 21, 2003.
    Daniel A. Reed, Baton Rouge, Seale, Smith, Zuber & Barnette; Charles F. Gay, New Orleans, Ann M. Halphen, Amy C. Lambert, Baton Rouge, Adams & Reese, for Applicant.
    Joseph E. Stockwell, Baton Rouge, for Respondent.
   |, VICTORY, J.

We granted this writ application to determine whether failure to request service of citation on a defendant within 90 days of the filing of a lawsuit, as required by La. C.C.P. art. 1201, renders the entire lawsuit an absolute nullity by operation of law, such that the filing of that suit does not serve to interrupt prescription under La. C.C. art. 3463. After reviewing the record and the applicable law, we affirm the judgment of the court of appeal and find that, in the absence of non-service for bad faith reasons, the filing of the lawsuit interrupts prescription, even if the defendant is not served within 90 days.

FACTS AND PROCEDURAL HISTORY

This is a medical malpractice case brought by the parents of Brandon Borde-lon against Dr. Andrew Zaruski and the Medical Center of Baton Rouge for failure to diagnose testicular torsion in December of 1995. After a medical review panel issued an opinion, the Bordelons timely filed suit against Dr. Zaruski and the Medical Center on February 6, 1998, in the Nineteenth Judicial District Court for the Parish of East Baton Rouge. Service was not requested on either defendant. The Medical Center eventually filed a Motion to Dismiss for failure to request service. The Bordelons did not offer any evidence to oppose the motion or to show good cause for the failure to request service. Thus, the trial court granted the motion to dismiss on August 3, 1998, in open court pursuant to La. C.C.P. art. 1201. The judgment was signed on August 10, 1998. On August 3, 1998, the same day that the motion to dismiss was granted Lin open court, the Bordelons filed a second suit against the Medical Center in the same district court. The Medical Center filed an exception of prescription on October 26, 1998, which was granted on January 4, 1999, with the trial judge finding that the first suit was effectively abandoned by non-service and did not serve to interrupt prescription. The First Circuit affirmed in part, reversed in part, and remanded the case to the trial court to allow plaintiffs to amend their petition to allege facts which would demonstrate an interruption of prescription. On June 9, 2000, after the second suit was remanded to the district court, the Bordelons amended their petition, pleading that they had timely filed a first lawsuit which interrupted prescription and adding Dr. Zaruski as a defendant. The defendants filed exceptions raising the objection of prescription, and the trial court again sustained the exceptions and dismissed the Bordelon’s petition, reasoning:

Failure to serve is to be treated as an absolute nullity. As Black’s [Law Dictionary] suggests, a nullity is to be considered as though it never occurred. This is analogous to the treatment of the abandonment provisions.... Here, as with abandonment, an order is not necessary to effectuate the dismissal of the claim. After the 90 day period has passed, by operational (sic) law, the case is deemed dismissed. Although, the plaintiff[s] filed the second suit before the order of dismissal was signed, the case had already been dismissed by operation of law. Thus, the plaintiff[s] cannot take advantage of interruption of prescription. Keeping with the intent of the law, I consider that the initial suit is an absolute nullity. As with abandonment, a nullity is considered never to have occurred. Filing a suit alone, did not interrupt prescription. Without service on the defendants, the lawsuit was an absolute nullity, which does not require a judgment. Therefore, the plaintiffs’] claim has prescribed, and I’m going to grant this.

The First Circuit Court of Appeal granted the Bordelon’s writ application and reversed, finding that the first suit filed within the prescriptive period interrupted prescription as long as that suit was pending, and therefore the filing of the second suit before the judgment was signed dismissing the first suit was timely. Bordelon v. Medical Center of Baton Rouge and Andrew T. Zaruski, M.D., 01-2164 (La.App. 1 Cir. 12/20/02), 836 So.2d 407. We granted the defendants’ writ application. Bordelon v. Medical Center of Baton Rouge and Andrew T. Zaruski M.D., 03-0202 (La.4/4/03), 840 So.2d 1209.

J^DISCUSSION

Prescription runs against all persons unless an exception is established by legislation. La. C.C. art. 3467. When a petition reveals on its face that prescription has run, the plaintiff bears the burden of establishing that the claim has not prescribed. LeBreton v. Rabito, 97-2221 (La.7/8/98), 714 So.2d 1226, 1228; Wimberly v. Catch, 93-2361 (La.4/11/94), 635 So.2d 206. The three legislative principles on which plaintiff can rely to meet that burden are suspension, interruption, and renunciation. Id.

La. R.S. 9:5628 provides the prescriptive period in medical malpractice cases as follows:

No action for injury or death against any physician, ... hospital ... whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought unless filed within one year from the date of the alleged act, omission, or neglect, or within one year from the date of discovery of the alleged act, omission, or neglect; however, even as to claims filed within one year from the date of such discovery, in all events such claims shall be filed at the latest within a period of three years from the date of the alleged act, omission, or neglect.

In this case, the petition filed on August 3, 1998, reveals on its face that prescription has run. However, plaintiffs allege that prescription was interrupted by virtue of their first suit timely filed on February 6, 1998. Indeed, La. C.C. art. 3462 clearly states that “ [prescription is interrupted when the ... obligee commences action against obligor, in a court of competent jurisdiction and venue.” There is no question that the first lawsuit was filed in a court of competent jurisdiction and venue. Further, plaintiffs rely on La. C.C. art. 3463, which provides:

An interruption of prescription resulting from the filing of a suit in a competent court and in the proper venue or from service of process within the prescriptive period continues as long as the suit is pending. Interruption is considered never to have occurred if the plaintiff abandons, voluntarily dismisses the action at any time either before the defendant has made any appearance of record or thereafter, or fails to prosecute the suit at trial.

As the comments to La. C.C. art. 3463 correctly recognize, “if an interruption results and the action is dismissed without prejudice, the period during which the action was pending does not count toward the accrual of prescription. The plaintiff then has the full prescriptive period within which to bring a new action.” La. C.C. art. 3463, Comment (b) (citing Hebert v. Cournoyer Oldsmobile-Cadillac-G.M.C., Inc., 405 So.2d 359 (La. 4th Cir.1981)); see also LeBreton, supra at p. 1229 (“interruption not only stops the running of prescription, it ‘annuls the commenced prescription so that after the interruption ceases, a new prescription must commence.’ ”)

Thus, the plaintiffs argue, prescription was interrupted by the filing of their first suit on February 6,1998, and that suit was pending until August 10, 1998, the day the judgment dismissing the first suit was signed, or at least until August 8,1998, the day the ease was dismissed in open court. Prescription began to run anew from that time, therefore, their second suit was timely filed on August 8,1998.

Defendants rely on La. C.C.P. art. 1201 for their argument that dismissal for failure to serve within 90 days renders a petition absolutely null such that the suit does not interrupt prescription. La. C.C. art. 1201 provides in part:

(A) Citation and service thereof are essential in all civil actions except summary and executory proceedings and divorce actions under Civil Code Article 102. Without them all proceedings are absolutely null.
(C) Service of the citation shall be requested on all named defendants within ninety days of commencement of the action. When a supplemental or amended petition is filed naming any additional defendant, service of citation shall be requested within ninety days of its filing. Defendant may expressly waive the requirements of this Paragraph by any written waiver.

In this case, the first suit was dismissed without prejudice due to plaintiffs’ failure to request service upon the defendants within this 90 day time period, pursuant to La. C.C.P. art. 1672(C), which provides:

A judgment dismissing an action without prejudice shall be rendered as to a person named as a defendant for whom service has not been requested within the time prescribed by Article 1201(C), upon contradictory motion of that person or any party or upon the court’s own motion, unless good cause is shown why service could not be requested, in which case the court may order that service be effected within a specified time.

Relying on the Third Circuit case of Bellard v. Lake Charles Memorial Hospital, 00-1599 (La.App. 3 Cir. 4/4/01), 787 So.2d 1017, defendants argue that failure to | ^request service on a defendant within the 90-day time period without good cause renders the lawsuit an absolute nullity which does not interrupt prescription. In Bellard, two identical lawsuits were pending at the same time, one filed in August of 1999 and the other filed in February of 2000. However, the defendant was not served within 90 days in the August 1999 lawsuit. The trial court granted an exception of lis pendens and dismissed the second suit. The court of appeal reversed, relying on La. C.C.P. art. 1201 that absent citation and service of a pleading, all proceedings associated with the pleadings are “absolutely null,” and found that since the plaintiff never effected citation and service of the August 1999 suit, those proceedings were absolutely null, therefore, there were not two suits pending at the same time. 787 So.2d at 1019.

We disagree that Bellard’s holding should apply in this case. Instead, we agree with the reasoning of two other court of appeal cases, and the court of appeal in this case, that have expressly addressed the affect of the 90-day service rule of La. C.C.P. art. 1201 on the interruption of prescription, and have held that in the absence of bad faith, a timely filed lawsuit in a court of competent jurisdiction and venue serves to interrupt prescription, even where the defendant is not served within the 90-day time period. See Futrell v. Cook, 00-2531 (La.App. 4 Cir. 12/19/01), 805 So.2d 325; Jacobs v. Louisiana Farm Bureau Insurance Companies, 01-837 (La.App. 3 Cir. 12/19/01), 815 So.2d 858.

The facts of Jacobs are essentially the same as the facts of this case, except that in Jacobs, the second suit was filed after the judgment dismissing the first suit for non-service within 90 days was actually signed. The court of appeal in Jacobs affirmed the trial court’s finding that the suit had not prescribed, specifically declining to follow its earlier holding in Bellard that without citation and service, the entire lawsuit is absolutely null under La. C.C.P. art. 1201. The Jacobs court concluded instead that, | (¡without citation and service, it is only the court’s actions, “the proceedings,” that are absolutely null, not the lawsuit itself; therefore, prescription is interrupted by the filing of the first suit. Jacobs, supra at 862.

In holding that prescription was interrupted by a timely filed first suit, even where plaintiff did not serve the defendants within the 90-day period of La. C.C.P. art. 1201, the court in Jacobs applied the legal principle that when interpreting a statute, courts must consider all laws together, which are on the same subject matter, La. C.C. |7art. 13, and considered La. R.S. 13:5107 and La. R.S. 9:5801, both of which show the legislative intent on this issue. La. R.S. 13:5107, which applies to suits against the state, provides in part:

D. (1) In all suits in which the state, a state agency, or political subdivision, or any officer or employee thereof is named as a party, service of citation shall be requested within ninety days of the commencement of the action or the filing of a supplemental or amended petition which initially names the state, a state agency, or political subdivision or any officer or employee thereof as a party. This requirement may be expressly waived by the defendant in such action by any written waiver.
(2) If service is not requested by the party filing the action within that period, the action shall be dismissed without prejudice, after contradictory motion as provided in Code of Civil Procedure Article 1672(C), as to the state, state agency, or political subdivision, or any officer or employee thereof, who has not been served.
(3) When the state, a state agency, or a;political subdivision, or any officer or employee thereof, is dismissed as a party pursuant to this Section, the filing of the action, even as against other defendants, shall not interrupt or suspend the running of prescription as to the state, state agency, or political subdivision, or any officer or employee thereof; however, the effect of interruption of prescription as to other persons shall continue. (Emphasis added.)

We agree with the Jacobs’ reasoning that while this statute may not be directly applicable as it involves suits against the state, “[significantly, when the legislature enacted the statute, it expressly provided that ‘the effect of interruption of prescription as to other persons shall continue,’ ” “deliberately confirming] La. Civ.Code art. 3463’s ‘interruption of prescription’ effects, as the article pertains to private entities.” 815 So.2d at 861. Indeed, had the legislature intended that prescription is not interrupted as to all defendants dismissed because of non-service within 90 days under La. C.C.P. art. 1672(C), the portion of La. R.S. 13:5107 specifying that prescription is not interrupted when the state is dismissed for non-service would be redundant, and the portion of La. R.S. 13:5107 stating that interruption continues against all “other persons,” would be nonsensical.

The court in Jacobs also correctly relied on La. R.S. 9:5801in finding that, in the absence of bad faith, a suit filed but not served within 90 days interrupts prescription. La. R.S. 9:5801 applies to the facts of this case and Jacobs as it directly addresses interruption of prescription in cases where a defendant is dismissed from |ssuit because service was not timely requested. Included in the part of the Civil Code Ancillaries entitled “Part II, Interruption and Suspension” and specifically entitled “Involuntary dismissal, failure to timely request service and citation,” La. R.S. 9:5801 provides:

Notwithstanding the provisions of Civil Code Article 2324(C), interruption is considered never to have occurred as to a person named as a defendant who is dismissed from a suit because service of citation was not timely requested and the court finds that the failure to timely request service of citation was due to bad faith. Nonetheless, as to any other defendants or obligors, an interruption of prescription, as provided in Civil Code Article 3468, shall continue.

This statute clearly provides that where a defendant is dismissed because service was not timely requested, interruption of prescription is considered never to have occurred if a court finds the failure to serve was due to bad faith. See Frank L. Ma-raist and Harry T. Lemmon, Louisiana Civil Law Treatise, Vol. 1, Civil Procedure, § 8.3, p. 183 and n. 26. As in Jacobs, in this case there was no argument or indication that plaintiffs acted in bad faith in failing to serve the defendants, without which, the statute clearly provides, interruption of prescription continues. Certainly, there would have been no reason for the legislature to specify in La. R.S. 9:5801 that prescription is not interrupted where a defendant is dismissed from suit because of non-service within 90 days if the non-service was in bad faith, if it had intended that prescription would not be for all defendants not served within 90 days under La. C.C. art. 3463. Likewise, by providing that “as to any other defendant ... an interruption of prescription, as provided in Civil Code Article 3463, shall continue,” the legislature was expressing its intent that in cases not involving bad faith, interruption of prescription continues even if the defendant is not served within 90 days.

We also reject defendants’ argument that a finding of lack of “good cause” for untimely service requiring dismissal under La. C.C.P. art. 1201 equals “bad faith” under La. R.S. 9:5801 such that interruption of prescription is considered never to have occurred. See Futrell, supra. In Futrell, a medical malpractice case such as |9this one involving multiple defendants, the court relied on La. R.S. 9:5801and noted that interruption of prescription is considered never to have occurred only where a defendant is dismissed from suit because service was not timely requested and the court finds that failure to timely request service was due to bad faith. Id. The court rejected the medical malpractice defendants’ argument that lack of good cause for service under La. C.C.P. art. 1672(C) equates to a finding of bad faith under La. R.S. 9:5801, finding no basis in the law for such an assumption. Id.

We agree. La. C.C.P. art. 1201, which requires dismissal for non-service unless good cause is shown, and La. R.S. 9:5801, which provides that interruption of prescription is considered never to have occurred when a defendant dismissed because of non-service within 90 days for bad faith reasons, are not inconsistent or ambiguous and can be read together in order to give the intended meaning to each. La. C.C.P. art. 1201 provides that a court need not dismiss a defendant for non-service within 90 days if the plaintiff shows good cause for failure to serve. Such a case is not dismissed and the court can then order that the plaintiff serve the defendant within a specified time. However, La. R.S. 9:5801 goes one step farther and provides that failure to serve a defendant within 90 days, where no good cause is shown, not only results in dismissal, but, when a court finds that the untimely or non-service was due to bad faith, this also results in the first suit not interrupting prescription as to that | ^defendant. Lack of good cause and bad faith have different meanings in the law and the legislature is presumed not to use one term when it intended to use another.

Finally, we address defendants’ argument that the conclusion that allowing the filing of a petition without service and citation to interrupt prescription as to a second suit allows a plaintiff another year to file and potentially allows a plaintiff to prolong the resolution of a case indefinitely. We are unpersuaded by this argument. Pursuant to La. R.S. 9:5801, a plaintiff who files lawsuits and then has the lawsuits dismissed for failure to serve the defendants within the 90-day period, only to file the same lawsuit again can be found to be in bad faith for any number of reasons under La. R.S. 9:5801. By enacting La. R.S. 9:5801, the legislature dealt with the type of situation that defendants are concerned about. Secondly, under La. C.C.P. art. 561, a lawsuit is deemed abandoned without formal order, when a party fails to take any step in its prosecution or defense in the trial court for a period of three years, and under La. C.C. art. 3468, interruption of prescription is considered never to have occurred by virtue of filing suit in a court of competent jurisdiction and venue when the plaintiff abandons the suit, voluntarily dismisses it, or fails to prosecute it at trial. Contrary to the trial court’s reasoning in this case, plaintiffs did not “abandon” the lawsuit in this case by virtue of their failure to request service in 90 days, for the above articles clearly require a three-year period of inaction by a plaintiff for a lawsuit to be deemed abandoned. Had the legislature intended to shorten the abandonment period to 90 days for non-service,n it could have included that in the conditions under which prescription is not interrupted under La. C.C. art. 3463, which it did not.

CONCLUSION

Prescription is interrupted by the timely filing of a lawsuit in a court of competent jurisdiction and venue, and continues as long as that suit is pending. Service of citation upon the defendant or defendants is required within 90 days, after which time, the court, on its own motion or that of any other party, shall dismiss from the action the defendant against whom service was not requested, unless good cause for non-service within 90 days is shown. However, unless that unserved party is the state, that lawsuit, although not timely served, interrupts prescription, unless the court finds that failure to request service was due to the plaintiffs bad faith. In that case, interruption of prescription is considered never to have occurred. Because there was no finding, or allegation, that the plaintiffs’ failure to request service upon the defendants in the first lawsuit filed on February 6, 1998, that lawsuit, although dismissed for non-service, served to interrupt prescription such that plaintiffs’ second lawsuit filed on August 3,1998 was timely filed.

DECREE

For the reasons expressed herein, the judgment of the court of appeal is affirmed.

AFFIRMED.

      . Article 1201(C) was amended in 1997 to add the 90-day time frame to the requirement to serve a party.

      . La. C.C.P. art. 531 provides in part that "[w]hen two or more suits are pending in a Louisiana court or courts on the same transaction or occurrence, between the same parties in the same capacities, the defendant may have all but the first suit dismissed by excepting thereto as provided in Article 925.”

      . We note also that a member of the panel that decided Bellard concurred in Jacobs, pointing out that, while he agreed with Bellard 's holding that pleadings constituted "proceedings” under La. C.C.P. art. 1201, the court in Bellard was not faced with the issue of prescription making that case inapplicable, but had it been, his view would have been that "civil action or suit, while absolutely null under La. C.C.P. art. 1201(A), still has the effect of interrupting prescription as long as it is pending in a court of competent jurisdiction in the proper venue.” Jacobs, supra at p. 865 (concurring opinion by Judge Gremil-lion).

      . Specifically, the court in Jacobs reasoned:
      We decline to follow Bellard, primarily, because we believe that its finding that "[a]b-sent citation and service of the pleading pursuant to La.Code Civ.P. art. 1201, all proceedings associated with the pleading 'are absolutely null[,]’ ” impliedly includes the lawsuit itself. This finding, if followed, would nullify the provision in the second sentence of La.Civ.Code art. 3463 as well as La.R.S. 13:5107(D)(3)’s last clause (confirming that prescription is interrupted for private entities), since neither could ever be applied if the interpretation of La.Civ.Code art. 3463 were correct. Furthermore, this interpretation is inconsistent with the tenets of La.Code Civ.P. art. 1672(C), and La. Code Civ.P. art. 1201(A).

      An absolute nullity is "an act in a cause which the opposite party may treat as though it had not taken place, or which has absolutely no legal force or effect.” This would mean that, at the 90 day mark without service, no suit exists. It is as if it had never been filed. Thus, there would be nothing to dismiss and nothing to continue. Yet, La.Code Civ.P. art. 1672(C) requires that a suit be dismissed when service is not requested within ninety days, and the article allows for the suit’s continuation, if good cause is shown why service could not have been requested; La.Code Civ.P. art. 1201(C) and La.R.S. 13:5107(D) provide that dismissal can be waived, permitting the suit to proceed. This implies that there is a suit in existence after 90 days have elapsed without service. However, under Bellard's absolute nullity holding, all of the above provisions would be moot, since there would be no suit to waive or on which to proceed after 90 days. Obviously, if the legislature intended that a suit becomes null and void after 90 days, if there has been no citation and service (the Bellard interpretation), it would not have drafted these other provisions for waiver and continuation of the same suit, since they are inconsistent with Bellard.

      Further support for our interpretation, sub judice, lies within La.Code Civ.P. art. 1201(A), which provides that "Citation and service thereof are essential in all civil actions except summary and executory proceedings and divorce actions under Civil Code Article 102. Without them all proceedings are absolutely null.” When this article is read in pari materia with others, above, on the same subject matter, it is apparent that the legislature intended that "all proceedings” on the suit, not the suit, would be absolutely null without citation and service. Otherwise, again, the other articles and statutes have no force. While "proceedings” encompass “pleadings” (suits) because, generally, without pleadings, there can be no proceeding, “pleadings” and "proceedings” are not synonymous. "Pleadings” are the statement of allegations which gives notice to an opposing party of the allegations against him. “Proceedings” are courts’ activities in processing the legal action. Thus, under La. Code Civ.P. art. 1201(A), it is the courts’ actions that are absolutely null, not the pleadings, themselves, because, under the law, the "defect” of lack of citation and service can be waived or cured, after which courts can proceed.

        Jacobs, 815 So.2d at 861-62.

      . In Futrell, the plaintiffs filed a timely lawsuit against the defendants, but did not serve them, instead requesting that the defendants waive service. Defense counsel agreed, on the condition that the plaintiffs send him a filed copy of the lawsuit. The plaintiffs failed to do so. When plaintiffs requested again six months later that defense counsel waive service, defense counsel refused and plaintiffs then served defendants with the lawsuit. Defendants filed exceptions of prescription and lack of 90-day service, which the trial court granted, finding that "[p]laintiffs failed to request service of the Petition within ninety days of filing as is required by C.C.P. art. 1201 and therefore these proceedings were dismissed pursuant to C.C.P. art. 1672(C).” Further, the trial court found, “in these circumstances, interruption of prescription is considered never to have occurred. See La. R.S. 9:5801.” The court of appeal affirmed the dismissal for non-service within 90 days but reversed the judgment granting the exception of prescription. Futrell, supra at 328-329.

      . Black’s Law Dictionary defines "good cause” as "a substantial reason amounting in law to a legal excuse for failing to perform an act required by law.” Thus, lack of good cause would be a lack of legally recognized excuse for non-service.

      . Black’s Law Dictionary defines "good faith” as “an intangible and abstract quality with no technical meaning or statutory definition, and it encompasses, among other things, an honest belief, the absence of malice and the absence of design to defraud or to seek an unconscionable advantage, and an individual's personal good faith is concept of his own mind and inner spirit ...” Black's Law Dictionary defines "bad faith” as: the opposite of “good faith,” generally implying or involving actual or constructive fraud, or a design to mislead or deceive another, or a neglect or refusal to fulfill some duty or some contractual obligation, not prompted by an honest mistake as to one's rights or duties, but by some interested or sinister motive. Term 'bad faith' is not simply bad judgment or negligence, but rather it implies the conscious doing of a wrong because of dishonest purpose or moral obliquity; it is different from the negative idea of negligence in that it contemplates a state of mind affirmatively operating with furtive design or ill will.


author: h JOHNSON, Justice. h KNOLL, Justice,

text:
    Susan Diane Starks ROSS v. Billy Wayne ROSS.
    No. 2002-C-2984.
    Supreme Court of Louisiana.
    Oct. 21, 2003.

      Walter George Bayhi, Baton Rouge, Counsel for Applicant.
    Mark V. Marinoff, Frank J. Saia, Counsel for Respondent.
   h JOHNSON, Justice.

We are called upon to determine whether renewal commissions received by the ex-husband during the marriage on insurance policies issued prior to the marriage were the ex-husband’s separate property subject to his declaration of paraphernality. The trial court and court of appeal found that the renewal commissions were separate property. We granted the ex-wife’s writ of certiorari to determine the correctness of the lower courts’ rulings. For the reasons that follow, we conclude that effort, skill, and industry were exerted to obtain the renewals, and we reverse the lower courts’ rulings.

FACTS AND PROCEDURAL HISTORY

Mr. Billy Wayne Ross (Mr. Ross) and Ms. Susan Diane Starks Ross (Ms. Starks) were married on May 29, 1992. Mr. Ross has been an independent insurance agent with State Farm since 1963 and operates the Billy Ross Agency in Baton Rouge, Louisiana. Shortly after their marriage, Mr. Ross filed a declaration of paraphernality on July 10, 1992, wherein he declared:

| gthat in accordance with the provisions of Article 2339 of the Civil Code of Louisiana, as amended by Act 709 of 1979, he reserves all fruits of his para-phernal and separate property, wherever located and however administered, whether such fruits be natural and civil, including interest, dividends and rents, bonuses, royalties, delay rentals and shut-in payments arising from mineral leases on separate property, or from the result of labor, or otherwise, for his own separate use and benefit and that it is his intention to administer such property separately and alone.

In the declaration, Mr. Ross acknowledged that a regime of acquets and gains otherwise existed between him and his wife.

Ms. Starks filed for divorce on November 18, 1996 and a judgment of divorce was rendered on June 11, 1997. Ms. Starks subsequently filed a petition to partition community property on November 6, 1997 in which she asserted that Mr. Ross had used community funds to satisfy his separate debts. In his answer, Mr. Ross claimed that the income in question, which he received from his insurance business, was his separate property subject to the declaration of paraphernality.

The trial court held a hearing on the single issue of whether the income derived from Mr. Ross’ insurance agency was his separate property and thus subject to the declaration of paraphernality. Following the hearing, the trial court rendered judgment, finding that any and all renewal commissions for policies originally issued before the date of marriage and received by Mr. Ross prior to or during the marriage are classified as his separate, para-phernal property. The court also found that Ms. Starks bore the burden of proving any entitlement to a pro rata share of renewals received by Mr. Ross between the date of the marriage and the filing of the declaration of paraphernality. The court further concluded that any income generated from new polices issued during the marital regime, as well as any renewal commissions derived therefrom are deemed to be community property.

In extensive written reasons for judgment, the trial court relied on jurisprudence that has held that renewal commissions received after the termination of the community |3as a result of the sale of insurance policies during the existence of the community are community property. Futch v. Futch, 26-149 (La.App. 2 Cir. 9/23/94), 643 So.2d 364; Michel v. Michel, 484 So.2d 829 (La.App. 1 Cir.1986); Boyle v. Boyle, 459 So.2d 735 (La.App. 4 Cir.1984). The court then reasoned that income generated from policies issued prior to the establishment of the community were Mr. Ross’ separate property. Based on Mr. Ross’ declaration of paraphernality, the trial court held that the renewal commissions generated from those policies issued prior to the establishment of the matrimonial regime were also Mr. Ross’ separate property. The court further found that the effort, skill and industry which ultimately produced the renewals was performed by Mr. Ross prior to the marriage which rendered them to be his separate property. Addressing Ms. Starks’ argument that no “thing” exists from which fruits may be produced, the trial court concluded that the “thing” or “asset” from which civil fruits derived were the actual policies of insurance written by Mr. Ross.

The court of appeal affirmed the trial court’s ruling in a 2-1 decision. The majority concluded that “Mr. Ross received renewal commissions based on his contract with State Farm and renewals of pre-exist-ing insurance policies, and since both the contract and the insurance policies are juridical acts, we find no error in the trial court’s determination that the policies are things or assets from which civil fruits may be derived.” Ross v. Ross, 01-2691 (La. App. 1 Cir. 11/8/02), 835 So.2d 817, 820.

The court of appeal disagreed with Ms. Starks’ contention that the renewal commissions should be deemed Mr. Ross’ salary because the majority, if not all of his income, is attributable to the renewal commissions. The court cited Kyson v. Kyson, 596 So.2d 1308 (La.App. 2 Cir.1991) (on re’g), writ denied, 599 So.2d 314 (La.1992); Gautreau v. Gautreau, 96-1548, 697 So.2d 1339 (La.App. 3 Cir. 6/18/97); and Paxton v. Bramlette, 228 So.2d 161 (La.App. 3 Cir.1969) writ denied, 255 La. 241, 230 So.2d 92 (La.1970) for the proposition that in order to disprove that the renewal commissions received by Mr. Ross were not civil fruits, it was necessary for Ms. Starks to prove that substantial labor was exerted by Mr. Ross to obtain the renewal commissions during the existence of the community property regime.

The court of appeal further found that: [h]ad the trial court found that Mr. Ross had expended any significant effort skill or industry in effecting the renewal of policies pre-existing the community during the existence of the community property regime, then the commissions would constitute community property and be subject to a claim of partition, to the extent or percentage community labor or “effort skill and industry was attributable to the renewal so effected.”

Ross v. Ross, 835 So.2d at 821

The appellate court further found that “[ajlthough Mr. Ross may have listed the renewal commissions as income on his tax statements and such income comprised a disproportionate share of his total income, the evidence shows that Mr. Ross received this income as a result of little or no effort, skill or industry exerted on his part during the community.” Id. at 821.

Judge Pettigrew dissented, stating:

Mr. Ross had no ownership interest in the insurance policies that renewed during the existence of the community of acquets and gains between him and his former wife. In my humble opinion, the commissions earned on these renewal premiums fit no description of separate property or asset that produces natural or civil fruits as utilized in La. Civ.Code art. 2339.
Premiums earned during the community of acquets and gains on renewal policies are nothing more than wages or compensation earned during the community of acquets and gains and are therefore community property.

DISCUSSION

| cpivil Fruits

The only issue before this court is whether the renewal commissions received by Mr. Ross during the community property regime on insurance policies written before the existence of the community are the result of labor, skill or industry, and are, thus, community property or whether, on the other hand, the renewal commissions are the “civil fruit” of some asset acquired by Mr. Ross prior to the existence of the community, such that they are subject to his declaration of paraphernality. We are called upon to determine, in other words, whether the renewal policies are “property” from which Mr. Ross may derive such civil fruits.

We begin our discussion with a historical background of the concept of “fruits” in Louisiana as well as the rights of spouses with regard to fruits under the Louisiana community property regime.

Professor A.N. Yiannopoulos in his discussion of the notion of fruits and products in Louisiana and comparative law describes the basic principle of fruits and products as follows:

Certain things are capable of producing other things, namely, corporeal objects or incorporeal economic advantages. In Louisiana and in France, the things that are produced by another thing without diminution of its substance are termed fruits. The fruit-producing thing is often termed a principal thing. Things produced by another thing whose substance is thereby diminished are termed products. (Emphasis by author)

Yiannopoulos, Property § 37, Louisiana Civil Law Treatise (4th ed.2001).

In a comparison with Roman law, Yian-nopoulos notes that under classical Roman law, fruits were, generally, the products derived from a thing regardless of diminution of its economic value. Yiannopoulos, supra, at § 38. Distinction was made between natural and civil fruits. Ordinarily, natural fruits were corporeal objects | ¿while civil fruits were values resulting from the ownership of a thing or from the conduct of business. Id. Also under Roman law, fruits followed the juridical situation of the principal thing in all cases. The owner of a thing ordinarily acquired its fruits. It was only in exceptional cases that other persons — a lessee, for instance, or usufructuary, or a bona fide possessor, acquired them. Id.

In discussing the French Code, Professor Yiannopoulos notes:

The French Civil Code does not define the generic term fruits. The definition accepted by courts and writers is that fruits are things that are produced periodically from a principal thing without diminution of its substance. (Citations omitted). Things produced by, or derived from, another thing whose substance is thereby diminished are not fruits but products (produits). Once separated from the principal thing, products are not reproduced.

According to Yiannopoulos, the significance of the distinction between fruits and products is that it provides the standard for the apportionment of economic advantages between the owner of a thing and other persons entitled to its fruits. “The owner is entitled to all products, whereas persons entitled to fruits only receive revenues produced by a thing periodically without diminution of its substance.” Yianno-poulos at § 39. He further explains that under French law ordinarily, fruits as well as products, follow the juridical situation of the principal thing. The owner of the principal thing acquires, upon separation, the ownership of fruits and products as individual things. However, “[i]n certain circumstances, principal things and fruits are disassociated; their juridical situation is not the same. In these circumstances, fruits do not follow the ownership of the principal thing, though products still do. Thus, when a usufruct is established, the fruits belong to the usufructuary, but products ordinarily belong to the naked owner.” Id. (Emphasis added).

In interpreting the corresponding provisions of the Louisiana Civil Code of 1870 in this area, Yiannopoulos notes that Louisiana frequently followed French doctrine [7and jurisprudence. The terminological distinction between “fruits” and “products,” however, was not at first accepted. As a result, a different conceptual apparatus had to be employed for the apportionment of economic advantages between the owner of a thing and other persons entitled to “fruits” such as usufructuaries, possessors in good faith, or as spouses living under the regime of community property. However, Article 551 of the Louisiana Civil Code established a unitary notion of fruits for all purposes, and following the French doctrine, the 1979 legislation has adopted the distinction between “fruits” and “products.”

The Louisiana Code of 1870 established three categories of fruits, namely, natural fruits, fruits of industry, and civil fruits. La. C.C. art. 545 (1870). Fruits of industry differed from natural fruits in that they were the result of effort and industry, whereas natural fruits were the spontaneous product of the earth or of animals. Since the rules governing natural fruits and fruits of industry have always been the same, the two categories were combined in the 1976 codal revision into one. See. La. C.C. art 551 (Acts 1976, No. 103, § 1, eff. Jan. 1-1977). Louisiana Civil Law Treatise; Property; Yiannopoulos.

Prior to the effective date of article 551, the jurisprudence, as well as doctrinal materials, indicated “fruits” was construed according to the context in which the issue | «of classification arose. Succession of Doll, 593 So.2d 1239, 1244, 1245 (La.1992). Citing Gueno v. Medlenka, 238 La. 1081, 117 So.2d 817 (1960) (usufruct); Milling v. Collector of Revenue, 220 La. 773, 57 So.2d 679 (1952) (taxation); Harang v. Bowie Lumber Co., 145 La. 96, 81 So. 769 (1919) (good faith possession); Elder v. Ellerbe, 135 La. 990, 66 So. 337 (1914) (good faith possession). Finally, a unitary notion of fruits ensued with the enactment of article 551.

As it relates to the mode of acquisition of fruits, Yiannopoulos states:

According to civilian conceptions, nonse-par[a]ted fruits form a part of the fruit-producing thing and belong to the owner of that thing by right of accession. Upon separation, natural fruits become individual things, and question arises as to how the ownership of these things are acquired. Owners, good faith possessors, and persons having real rights in fruit-producing things acquire ownership of natural fruits upon separation, without the need of any act on their part. Persons having real rights acquire ownership of natural fruits by virtue of an act of collection, namely by the taking of possession.
The mode of acquisition of civil fruits involves distinct problems. According to traditional civilian ideas, maintained in modem codes, civil fruits accrue by virtue of an obligation; hence one entitled to civil fruits acquires a “claim” for the collection of civil fruits rather than “ownership” thereof. Accordingly, the mode of acquisition of civil fruits is ordinarily a matter governed by the agreement of the parties and the law of obligations. (Emphasis added)

Yiannopoulos, supra, § 41.

With regard to the classification of property among married persons, the legal principles are found the Louisiana Civil Code. La. C.C. art. 2338 provides:

The community property comprises: property acquired during the existence of the legal regime through the effort, skill, or industry of either spouse; property acquired with community things or with community and separate things, unless classified as separate under Article 2341; property donated to the spouses jointly; natural and civil fruits of community property; damages awarded for loss or injury to a thing belonging to the community; and all other property not classified by law as separate property.

As was explained in 16 Spaht and L.W. Hargrave, Louisiana Civil Law Treatise, Matrimonial Regimes § 3.3 at 48(1997):

| a Wages are the premier community asset. It is wages paid in return for work done during the existence of the community that are included, regardless of when the payment is actually made. The “property acquired,” in the language of Louisiana Civil Code Article, 2338, is a right to payment at some point for the work done. If payment is made during the community for work done before its commencement, the money is separate. If the check is cut after termination, but is for work done during the community, the funds are Community-

Property acquired by a spouse prior to the establishment of the community property regime is separate property. La. C.C. art. 2341. However, the natural and civil fruits of separate property produced during the existence of the community property regime are community unless a spouse reserves them as his separate property in a declaration made by authentic act or an act under private signature duly acknowledged. La. C.C. art. 2339.

The Code also provides that things in the possession of a spouse during the existence of a regime of acquets and gains are presumed to be community. La. C.C. art. 2340. However, either spouse may rebut this presumption. La. C.C. art. 2340. The spouse seeking to rebut the presumption bears the burden of proving that the property is separate in nature. Knighten v. Knighten, 00-1662 (La.App. 1 Cir. 9/28/01), 809 So.2d 324, writ denied, 01-2846 (La.1/4/02), 805 So.2d 207.

The current definition of fruits is found in La. C.C. art. 551, which provides:

Fruits are things that are produced by or derived from another thing without diminution of its substance.
There are two kinds of fruits; natural and civil fruits.
Natural fruits are products of the earth or of animal.
Civil fruits are revenues derived from a thing by operation of law or by reason of juridical act, such as rentals, interest, and certain corporate distributions.

Is there a fruit producing “thing” or “asset?”

With this background, we will now address Ms. Starks’ first argument that the lower courts erred in finding that the insurance policies between State Farm and the | mindividual policy holders constitutes “things” or assets from which fruits may be produced.

Ms. Starks argues that neither the insurance policies written by Mr. Ross prior to the marriage nor his agency contract with State Farm Insurance Company (the agency contract) constitute “things” or “assets” in which Mr. Ross had an ownership interest and from which fruits may be derived. Without any ownership interest, Ms. Starks argues, the agency contract is no different in function than a medical license, a law license, or an exclusive franchise agreement. She maintains that like these examples, the agency contract has no inherent value, cannot be inherited by children or transferred for value to a third person, and returns nothing on the “investment” required to acquire it.

Ms. Starks further maintains that the individual insurance policies sold to the customers prior to the marriage did not create “property” because Mr. Ross had no legal interest in those policies. Only the policyholders or State Farm could enforce, cancel, renew, modify, or avail themselves of the provisions of those policies. Mr. Ross could not transfer or assign the policies themselves, and his ability to collect premiums from the renewal of the policies is conditioned upon his possession of a valid Louisiana insurance license, the continuation of the State Farm Agency Contract, the decision of the policyholder to renew the policy, and the payment of the premiums. Thus, according to Ms. Starks, the renewal commissions could not have been classified as fruits.

Mr. Ross counters that the lower courts correctly determined that the insurance policies entered into between the policy holders and State Farm were “things” in themselves. He argues that although the policies themselves did not create property rights per se, they were things themselves which produced revenue by juridical act (the Instate Farm Agency contract with Mr. Ross). Mr. Ross contends that the renewals flowing from the things in question (the insurance policies) produced civil fruits (renewal commissions). As the policies were sold prior to the marriage, Mr. Ross argues that the lower courts correctly concluded that the civil fruits inured to his separate estate and could be reserved under article 2339.

After careful review of the law, we must agree with the court of appeal’s finding that the individual policies of insurance are “juridical acts” from which civil fruits may be derived. As stated, the definition of “civil fruits” contained in La. C.C. art. 551 is “revenues derived from a thing by operation of law or by reason of juridical act.” (Emphasis added). Examples given of civil fruits include rent, interest and some corporate distributions. To qualify as a “fruit,” a thing must first be “produced by or derived from” another thing. La. C.C. art. 551. Thus, the examples of “civil fruits” provided in the code must necessarily be derived from a “thing” or “asset,” i.e. rental property, money, or some corporate investment.

We reject Ms. Starks’ argument that not only must there be a “thing,” there must be an ownership interest in the thing in order to claim ownership of the civil fruits. There is no dispute that Mr. Ross has no ownership interest in the insurance policies per se as he has no direct, immediate or exclusive authority over these contracts. Further, he cannot transfer, enjoy, or dispose of these contracts.

However, the record indicates that Mr. Ross received commissions based on his agency contract with State Farm coupled with the securing of the individual | ^insurance policies. By virtue of these juridical acts, Mr. Ross gained “the right” to collect or a “claim” to the insurance commissions on these policies. As long as these same policies of insurance are renewed, Mr. Ross has the same “right” or “claim” to the commissions. Thus, under the definition of civil fruits contained in La. C.C. art. 551, Mr. Ross received revenue (renewal commission) by reason of juridical acts (the insurance policies). As explained above, fruits do not always follow the ownership of the principal thing, as is the case with products. As stated by Yiannopoulos, the mode of acquisition of civil fruits is ordinarily a matter governed by the agreement of the parties and the law of obligations.

Fruits or Earnings ?

Having decided that the insurance policies are “things” from which civil fruits may be derived, we must now determine whether the lower courts erred in finding that the renewal commissions were in fact “civil fruits” of Mr. Ross’ separate property, and not the result of Mr. Ross’ effort, skill or industry during the existence of the community property regime. As evidenced in the instant case, our courts have experienced some difficulty in determining whether a spouse’s property should be classified as earnings or fruits.

Spaht and Hargrave explained:

From the earliest times, the most important legislative policy underpinning the Louisiana community property regime has been that spouses share equally “the produce of the reciprocal labor and industry” of both “husband and wife.” No matter how married couples organize their fives — one earning income, the other managing the home; both working for wages; neither earning wages and both producing things; or whatever— the basic rule is that they share equally in whatever each produces and accumulates. Historically, this policy protected the wife who was not a wage earner by giving her a share in the husband’s accumulations of income. In more modern times, the policy fosters equality as the household with two working spouses becomes more common.

Spaht and Hargrave, Louisiana Civ. Law Treatise, Matrimonial Regimes, § 3.2 at p. 47 (1997).

113In the instant case, if the renewal commissions are the result of Mr. Ross’ effort, skill or industry during the existence of the community property regime, the renewal commissions, or at least a portion thereof, are community property. This is in keeping with the basic notion that spouses should share equally “the produce of the reciprocal labor and industry of both husband and wife.” Spaht and Hargrave, Matrimonial Regimes, supra § 3.2 at p. 47.

Spaht and Hargrave also discussed the issue of “fruits vs. earnings” in their treatise:

Fruits may be separate property if the appropriate declaration is filed; otherwise, they are community, [footnote omitted]. Property acquired by the effort, skill or industry of a spouse is community, and there is no mechanism provided for making it separate, [footnote omitted]. In the simplest case, production of the fruits would not involve labor or industry of a spouse — the typical passive investment. However, it is quite common for many investments to combine one spouse’s separate capital or property with community labor to produce fruits.

Spaht and Hargrave, supra § 3.8 at p. 64. The authors then suggest that:

[t]o the extent that labor is producing some benefit, the community ought to share in the profit of that labor. If it is combined with separate capital or other separate property, equity would suggest a proportional division of the profits between the community and separate estates of the spouses. If such a pro rata division is not adopted, it would allow a spouse with separate property to act in bad faith and deprive the community of the revenues by putting all one’s efforts into production of fruits from the separate asset.

Id.

Other authors and commentators have suggested the equitable solution of a pro rata division of the property when labor is combined with capital investment to produce fruits. Our courts have also adopted this notion.

On original hearing in Kyson v. Kyson, supra, the second circuit court of appeal found that while money received by the husband, Mr. Kyson, qualified as rental |14revenue, the rental payments were the result of a substantial amount of time spent by Mr. Kyson on managing the rental property. The court stated:

[E]ven if Mr. Kyson had not participated in the rental management he would have received some rentals as passive investment. We find this to be a case in which “separate capital is combined with community labor to produce fruits. Thus, a determination must be made as to the amount of labor attributed to the investment. An appropriate analysis is to examine the relative contributions of labor and capital to the funds involved and a proration of the funds according to these contributions.”

Because the court was unable to determine from the record before it the value of Mr. Kyson’s labor in order that the required proration of funds could be made, the court remanded the matter to the trial court for this determination. On rehearing, the court in Kyson, noting that the trial court made no factual finding in this regard, concluded that it was unable to discern from the record sufficient quantification of Mr. Kyson’s time and labor associated with the disputed rental income from which it could draw any meaningful conclusion. The court, therefore, reversed its original decision on the basis that the facts did not support its initial conclusion. Although reversed on other grounds, the case remains as authority for prorating income that results both from a spouse’s labor and from a return on a separate property investment.

In an earlier case, Paxton v. Bramlette, supra, the court was faced with a dispute over whether corporate distributions to the wife were community salary or separate dividends. The court concluded that the funds were community earnings since it found the wife contributed “substantial services” to two corporations in which she had controlling interests. The wife owned real estate and received rents from those properties that the court characterized as “fruits of her paraphernal property.” She later transferred the properties to a newly formed realty corporation. She was paid a salary by the corporation before and after she filed an affidavit reserving the fruits of her separate property. The court, finding that the wife performed most of the | -^managerial duties in operating the corporation, including collecting rents, depositing them, and handling maintenance and repairs, held that the payments after the filing were community and were not fruits of separate property. The wife also owned as separate property 82% of the stock in a corporation that operated furniture stores. She went to the store daily and participated in important decisions, none of which were made without her approval. The court quoted approvingly from law review writers suggesting that the basic analysis in such a case is to examine the relative contributions of labor and capital to the funds involved; if the revenue was the result of substantial capital, it would be a fruit; if it represented substantial labor with little capital, it would be earnings. The court then concluded that her labor was substantial and thus the payments were community earnings.

The court in Gautreau v. Gautreau, supra, also followed this approach and found that to the extent the income derived by the wife from her separate property was paid to her because of her “effort, skill or industry” and was not simply passive income accruing as the result of corporate distributions or the increase in value of the corporation, the income was community property. Gautreau, 96-1548 at 12,13, 697 So.2d at 1349.

Although the issue is res nova in this Court, the difficulty in determining whether revenue is earnings or fruit has been considered in the context of renewal commissions by our colleagues on the courts of appeal. In Michel v. Michel, supra, the husband received commissions on life insurance policies he sold as well as “Factor 1” commissions based on the performance of salesmen he recruited and trained. The husband’s work in recruiting and training the sales staff was performed during the existence of the community, however, the sales by the latter and the payments to him came after termination of the community. The first circuit court of appeal held that the |¶ ¿wife was entitled to share in her husband’s insurance sales commissions on the policy renewals received by her husband after termination, since all of the sums involved related to community effort. The court stated, “while it is true that the spade work had been done when the original sale had been made, some service work had to be performed and in addition there was no certainty that the policies would be renewed.” Michel, 484 So.2d at 835. Since the revenue resulted from labor during and after the community, it was to be divided proportionally. Although the court admitted that the amount attributed to post-community work was “speculative,” the court of appeal affirmed the trial court’s approximation of this interest in giving one-half to the husband’s separate estate and one-half to the community.

A different approach was undertaken by the third circuit in Williams v. Williams, 590 So.2d 649 (La.App. 3 Cir.1991). In that case, the court concluded that an ex-husband’s renewal commissions attributed to insurance policies sold during the community but paid after termination were not to be shared with his ex-wife. The court suggested that even if the renewal premiums were attributed to work during and after the community, the value to the community was speculative in nature. Thus, it found that the wife’s interest was so speculative that it had no value at all.

The court in Futch v. Futch, 26-149 (La.App. 2 Cir. 9/23/94), 643 So.2d 364, expressly disagreed with the holding in Williams and followed the rationale in Michel, supra. The court in Futch stated, “although it may be impossible to perfectly divide renewal commissions generated by insurance policies written during the marriage, we disagree with Williams, supra, and conclude that these renewal commissions are community property subject to partition.” Futch, 643 So.2d at 367. The court further |i7found that “[e]quity requires a division in which Mr. Futch’s separate labor and costs to keep the policies in effect are considered in determining the community’s share.” Id. at 369. Finding the record lacked evidence needed to make this determination, the court remanded the matter to the trial court for the taking of such evidence. The court of appeal further found that the burden would be on the husband “to establish his entitlement to more than one-half of the renewal commissions. For many of the policies, no significant servicing may be required; however, for the polices that generate renewal commissions based on Mr. Futch’s post-termination efforts or achievement, he, not the former community, is entitled to the fruits of this enhancement.” Id.

Spaht and Hargrave have opined that the “[ejquitable considerations as well as basic doctrinal principles support the Michel-Boyle-Futch approach, even if the division is approximate.” Matrimonial Regimes, Louisiana Civil Law Treatise, § 3.4 at 58 (1997).

In the case sub judice, Ms. Starks argues that this case does not involve the “return” on some separate property asset, but rather the income at issue is entirely due to the sales efforts of Mr. Ross. She maintains that the renewal commissions were not “passive income,” but were the result of labor expended during the existence of the community.

Ms. Starks argues that under the test enunciated in Paxton, supra, and Gautreau, supra, it is clear that the revenues at issue are community property because Mr. Ross had minimum “capital investment” in his insurance agency, but contributed substantial labor, which produced income during the community regime. She maintains that it was Mr. Ross’ sales efforts, his personality, his knowledge of his customers and their insurance needs, and his ability to preserve the right to sell h insurance policies by meeting his contractual and legal requirements to do so that created the revenues at issue. Thus, she argues, the only significant investment in the insurance agency was Mr. Ross himself. In other words, the investment was human labor and not economic capital. Ms. Starks further contends that all of the reported decisions by Louisiana courts which have considered renewal commissions acknowledge the rule that some effort is expended by insurance agents to generate renewal commissions.

To the contrary, Mr. Ross argues that the record shows that he did not expend effort, skill or industry during the marriage as it relates to receiving renewals from policies sold some 30 years prior. He contends that he expended no labor during the marriage which was in any way attributable to renewals received during the marital regime. Mr. Ross further maintains that the “balancing test” required in determining the proper characterization of renewal assets was undertaken by the trial court in this matter, which correctly resulted in the court’s judgment that Mr. Ross expended little or no effort during the marriage for purposes of receiving these renewals.

We first note, as did the court of appeal, that a trial court’s findings regarding the nature of the property as community or separate is a factual determination subject to manifest error review. Biondo v. Biondo, 99-0890, pp. 4-5 (La.App. 1 Cir. 7/31/00), 769 So.2d 94, 99. The trial court in this case did in fact make a factual determination as to the classification of the renewal premiums in this case. The court noted that with the exception of the Williams case, supra, Louisiana jurisprudence has held that renewal commissions received after the termination of the community as a result of the sale of policies (effort, skill or industry) during the existence of the community are community. The trial court then reasoned that it follows that the sale |19of insurance polices (effort, skill or industry) before the existence of the community were separate property.

In determining whether any effort, skill or industry was expended during the community, the trial court reviewed the trial testimony of Mr. Ross in this regard. The court noted Mr. Ross’ testimony that:

“[w]hen he began his business, ‘Billy Ross Insurance Agency,’ he called people all day everyday; occasionally went door-to-door; and attempted to ‘gain a listening ear’ in an effort to generate business. However, by 1992, when he married Mrs. Ross, his business had grown to the level that he was no longer required to ‘prospect.’ ” He stated that the nature of effort, labor, skill and industry put into the business since 1992 consists of training employees and evaluating office products. He stated that during the marriage he went to the office three to five days a week for approximately three to eight hours each day. He testified that it has been years since he personally has completed a new application for insurance. However, he has employees who may have done so. Mr. Ross testified that the majority of the money generated by his business is from renewals of policies written prior to the marriage. He further stated that he cannot think of a single thing he did to induce people to renew their policies, nor does he know what he can do to induce people to renew them.

Trial court judgment, p. 3.

The trial court went on to conclude that the effort, skill and industry which ultimately produced the renewals received during the existence of the community were performed prior to the marriage which renders them to be separate property. However, the court did recognize that “despite Mr. Ross’ denial that he put forth any effort to generate renewals that were received during the marriage, some servicing may have been required.” Thus, the trial court found Ms. Starks would bear the burden at trial to quantify Mr. Ross’ efforts, during the minute time frame between the date of marriage and the filing of the declaration, to prove the amount of effort Mr. Ross put forth toward the renewals.

| spThe court of appeal affirmed the trial court’s conclusion, finding that “in order to disprove that the renewal commissions received by Mr. Ross were not civil fruits, it was necessary to prove that substantial labor was exerted by Mr. Ross to obtain the renewal commissions during the existence of the community property regime.” Ross, 835 So.2d at 821. The court of appeal concluded, based on its own review of the record, that the evidence supports the trial court’s determination that Mr. Ross had not expended any significant effort, skill or industry in effecting the renewal of policies pre-existing the community during the existence of the community property regime.

We find that the lower courts erred in assigning the burden of proof and in finding that little or no effort was exerted to generate the renewal commissions. The evidence in the record is to the contrary. Because the renewal commissions were received during the existence of the community, the burden was upon Mr. Ross to prove that they were not community property. Knighten v. Knighten, supra. Despite Mr. Ross’ assertions that no effort was required to service customers and maintain his book of business, his deposition testimony reveals that he indeed exerted substantial effort, skill and industry to insure the maintenance of his existing business and to satisfy existing policyholders. According to Mr. Ross, he spent three to five days per week, and an average of five to ten hours per day working at his insurance agency. The parties agree that Mr. Ross certainly did not spend this time generating new business. In fact, new business constituted only 6-7% of the business income. The majority of income from the Billy Ross Insurance Agency came from renewal of policies.

Despite Mr. Ross’ assertion that he did nothing, and could do nothing, to produce the renewals, the record reveals that he did in fact provide substantial services |?1 to existing policyholders. In his deposition, Mr. Ross testified that he entertained existing policyholders by way of receiving and returning phone calls; answering questions regarding, among other things, accident reports, claims, and general insurance matters. He sent Christmas cards and birthday cards. Further, the business records show that money was allocated to advertising, newsletters, postage and entertaining clients. Mr. Ross maximized his income by servicing and entertaining existing policyholders. We can only conclude that had the customers received no services, “shmoozing,” if you will, the agency income would have dropped significantly.

In his testimony, Mr. Ross describes his work as office management and training employees. The fact that Mr. Ross’ role at some point changed from direct sales to a supervisory role, does not change this court’s decision. The employees were mandataries or agents, acting on behalf of the agency servicing old clients and prospecting for new clients. Any servicing by employees equates to servicing by Mr. Ross himself. Mr. Ross’ employees were hired and trained by the Billy Ross Agency and were compensated by the agency, not State Farm.

State Farm even recognizes that its agents perform “service” on existing accounts. In addition to other forms of compensation, the company pays its agents “service compensation.” The term is defined in the State Farm Agent’s Agreements as follows:

J^SERVICE COMPENSATION. For services rendered by you in any month while this Agreement is in force, in assisting policyholders, cooperating with adjusters in reporting and handling claims, and cooperating with and promoting the interests of the Company, you shall be paid for such month and amount equal to ...

We find it is inconceivable that Mr. Ross would spend such a significant amount of time “working” at his office, producing substantial income mostly attributable to renewal commissions, and then assert that he did not exert any effort, skill or industry toward producing the renewal commissions. Mr. Ross’ assertions in this regard are simply unconvincing.

Based on the above, we must conclude that the renewal commissions received by Mr. Ross during the existence of the community property regime were the result of Mr. Ross’ effort, skill and industry exerted during the community regime. Our holding is consistent with the well settled law with regard to what constitutes community property in our state and is in accord with the notion that to the extent that labor is producing some benefit, the community-ought to share in the profit of that labor. Accordingly, we find that the lower courts’ decisions to the contrary are manifestly erroneous, as they are not supported by the evidence. Ms. Starks is entitled to share in the business income generated by Mr. Ross’ work, industry and effort during the marriage.

CONCLUSION

Accordingly, we reverse the lower courts’ findings that Mr. Ross did not exert effort, skill or industry during the existence of the community property regime to produce the renewal commissions he received during the regime. We also reverse the lower courts’ decision insofar as it places the burden of proof on Ms. Starks to prove her entitlement to a share of renewal commissions during the marriage.

| ^REVERSED.

VICTORY, J., concurs in the result.

KNOLL, J., concurs in the result and assigns reasons.

h KNOLL, Justice,

concurring.

I concur with the majority’s result that the renewal commissions Mr. Ross received during the existence of the community were the result of his effort, skill and industry exerted during the community regime. In my view the majority errs, however, in its analysis that these commissions are civil fruits that are subject to the community regime due to the effort expended by Mr. Ross during the regime, because these commissions are not civil fruits.

I disagree from the majority’s holding that the individual insurance policies are juridical acts from which civil fruits may be derived. This is not a matter where Mr. Ross’s effort, skill and industry were combined with capital investment. The renewal premiums were not the result of Mr. Ross’s separate capital investment or separate property. The renewal premiums, as the majority concludes, were the result of Mr. Ross’s effort, skill and industry. “Property acquired by the effort, skill or industry of a spouse is community, and there is no mechanism provided for making it separate.” 5 Katherine Spaht & W. Lee Hargrave, Louisiana Civil Law Treatise — Matrimonial Regimes § 3.8, p. 64 (2d ed.1997).

As the majority correctly notes, the treatise suggests that:

If [labor] is combined with separate capital or other separate property, | ?,equity would suggest a proportional division of the profits between the community and separate estates of the spouses. If such a pro rata division is not adopted, it would allow a spouse with separate property to act in bad faith and deprive the community of the revenues by putting all one’s efforts into production of fruits from the separate asset.
Id. (Emphasis added.)

Mr. Ross’s effort and industry were not combined with separate capital or separate property to generate the renewal commissions. In my view, renewal commissions are not civil fruits from an asset; the insurance policies were not Mr. Ross’s asset or property.

Certainly the policies are juridical acts and “things;” conceivably they are even assets of the policyholders. The majority’s analysis is flawed, however, in finding that because insurance policies are juridical acts and things, civil fruits necessarily flow from them.

“The right of ownership, which according to traditional civilian analysis includes the elements of usus, fructus and abusus, may lawfully be dismembered in a variety of ways either by the intention of the owner or by operation of law.” Exposé des Motifs, Title III: Personal Servitudes, La. Civ.Code Ann. (West 1980). Because fruits are a right of ownership, the majority errs in rejecting Ms. Starks’s argument that there must be ownership interest in the thing in order to claim ownership of the fruits. Although acquisition of the fruits may be dismembered by a personal servitude, thereby precluding the owner of the thing from claiming ownership of the fruits, it is elemental that if the rights of ownership have not been dismembered, the rights, including the fruits, remain with the owner of the thing. Fruits are a right of ownership; “[i]n the absence of rights of other persons, the owner of a thing acquires the ownership of its natural and civil fruits.” La. Civ.Code art. 483.

The majority’s analysis that “... under the definition of civil fruits contained pin La. C.C. art. 551, Mr. Ross received revenue (renewal commission) by reason of juridical acts (the insurance policies.)” fails to account for the ownership element of the “fruit producing thing” and fails to address the acquisition of the (misnamed) fruits. The insurance policies are contracts between the policyholders and State Farm. The agency contract between Mr. Ross and State Farm was the mechanism that provided for the payment of commissions to Mr. Ross for the renewal of insurance policies sold by him. These commissions are compensation paid to Mr. Ross per the terms of the contract between him and State Farm. Article 551’s reference to juridical acts concerns acts that create the civil fruits such as rent, interest and dividends. The code article is not authority that any juridical act that gives rise to payment transforms that payment into a civil fruit. The majority’s conclusion that these commissions are civil fruits (a right of ownership) does violence to the civilian concept of ownership.

The majority cites to various appellate court decisions declaring that the courts of appeal have addressed the issue of whether renewal commissions are earnings or fruit. Ross, op. at 394. The majority errs in finding that those courts addressed this issue. In each of those cases, the court was deciding whether the effort, skill and industry were performed during the community regime so that the resulting commissions would be classified as community property. Michel v. Michel, 484 So.2d 829, 835 (La.App. 1 Cir.1986)(Wife was entitled to share in renewal commissions received by husband after termination of the community where policies were sold during the community; because the money was the product of labor during and after the community it was to be divided proportionately); Williams v. Williams, 590 So.2d 649, 653 (La.App. 3 Cir.1991)(Service work performed after termination of the community contributed in great measure to policy renewals making service [ 4work performed during the marriage less important vis-a-vis renewals); Futch v. Futch, 26-149 (La.App. 2 Cir. 9/23/94), 643 So.2d 364, 369 (The husband is entitled to deduct from the renewal commissions an amount representative of his post-termination efforts in producing these commissions; he is entitled to the commissions generated by his post-termination efforts and apportionment between the community’s and his separate interest should be made accordingly). In none of these cases was the issue ever raised that the commissions were civil fruits. The issue in the matter before us is the same issue that was before the appellate courts in Michel, Williams, and Futch, ie., whether renewal commissions are classified as community or separate when the initial policies were sold during one regime and the renewal commissions were earned in another. The only difference is that in Michel, Williams and Futch, the polices were sold during the community and the renewal commissions were paid after its termination, whereas, in the matter presently before us, the situation is the complete opposite.

The majority takes an unnecessary circuitous route to reach its result. The issue was simply whether any effort was expended by Mr. Ross during the regime that resulted in commissions earned by him from policies sold before the establishment of the community. Mr. Ross exerted substantial effort, skill and industry to ensure the maintenance of his existing business and to satisfy existing policy holders. Because of his efforts, he continued to receive renewal commissions. These renewal commissions were reported as income on his income tax statements and comprised a significant portion of his total income. Property acquired during the existence of the legal regime through the spouse’s effort, skill or industry is community property. See La. Civ.Code art. 2838. All forms of payments in return for one’s labor, whatever they may be called, are included. Spaht, § 3.3, p. 48. Commissions | ¿representing a percentage of sales or premiums would also be included. Id.

Because, as the majority correctly concludes, Mr. Ross expended significant effort, skill and industry in effecting the renewal of policies pre-existing the community during the existence of the community property regime, these renewal commissions constitute compensation paid in return for work done during the community property regime. Therefore the commissions constitute community property and are subject to Ms. Starks’s claim for partition, to the extent or percentage community labor was attributable to the renewals so effected. I find the majority has erred in classifying the renewal commission as civil fruits.

For these reasons, I do not agree with the majority’s analysis. I concur only with the majority’s result which found the trial court was manifestly erroneous in its determination that the commissions were Mr. Ross’s separate property, and the determination that the renewal commissions were the result of Mr. Ross’s effort, skill and industry exerted during the community regime.

      . By order of the divorce decree, Ms. Starks resumed the use of her maiden name. Accordingly, we will refer to her as Ms. Starks throughout this opinion.

      . Yiannopoulos refers to Weiss, Institutionen des romis-chen Privatrechts 135 (2d ed.1949); but cf. Sohm-Mitteis-Wenger, Institutionen 262 (17th ed.1923).

      . See La. C.C. arts. 488, 551.

      . La. C.C. art. 545 (1870) provided:
      Natural fruits are such as are the spontaneous product of the earth; the product and increase of cattle are likewise natural fruits.
      The fruits, which result from industry bestowed on a piece of ground, are those which are obtained by cultivation.
      Civil fruits are rents of real property, the interest of money, and annuities.
      All other kinds of revenue or income derived from property by the operation of law or private agreement, are civil fruits.

      . In Section (B) of the 2000 Revision Comments to La. C.C. art 395, a "juridical act” is defined as "a lawful volitional act intended to have legal consequences. It may be a unilateral act, such as an affidavit, or a bilateral act, such as a contract. It may be onerous or gratuitous. See Civil Code Article 3471 (Rev. 1982), Comment (c) (citing 1 A.N. Yiannopou-los, Louisiana Civil Law System Coursebook Section 77 (1977)); 1 Planiol & Ripert, Treatise on the Civil Law, pt. 1, no. 265, at 187 (La.St.L.Inst.trans., 12th ed.1939).”

      . See Yiannopoulos, Property; Morrow, Matrimonial Property law in Louisiana 34 Tul L.Rev. 3; L'Enfant, Classification of Property, 25 La.L.Rev. 95.

      . See also Boyle vs. Boyle, 459 So.2d 735 (La.App. 4 Cir.1984), writ denied, 462 So.2d 651 (1985) relied on by the Michel court, wherein, the fourth circuit court of appeal awarded the wife one-half of the renewal commissions on policies written before termination of the community.

      . As a result of Mr. Ross’ effort, the agency had sales of $199,685 in 1992, $218,767 in 1993, $207,147 in 1994 and $261,288 in 1995. 93% to 94% was renewal commissions.

      . La. C.C. art. 2989 defines mandate as "a contract by which a person, the principal, confers authority on another person, the man-datary, to transact one or more affairs for the principal.” An agent is one who acts for or in place of another by authority from the latter. Venable v. U.S. Fire Ins. Co., 02-505 (La.App. 3 Cir. 10/30/02), 829 So.2d 1179 citing Oliver v. Central Bank, 26,932 (La.App. 2 Cir. 5/10/95); 658 So.2d 1316, 1321 writ denied 95-1469 (La.9/22/95); 660 So.2d 477. The terms "mandatary” and "agent” are sometimes used synonymously. Cases have held that a mandatary or agent is one who acts in place of another by authority from him. Baker v. Purselley, 411 So.2d 553 (La. App. 1 Cir.1982).

      . See Spaht, § 3.4, p. 57.