author: It EZELL, J. | THIBODEAUX, J.,

text:
    UNWIRED TELECOM CORP. v. PARISH OF CALCASIEU, School Board & Police Jury.
    No. 02-839.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 5, 2003.

      Richard Phillip Ieyoub, Attorney General, Tina Vicari Grant, Louisiana Dept, of Justice, Baton Rouge, LA, for State of Louisiana.
    William M. Backstrom Jr., Coleman Douglas Ridley, Jones, Walker, et ah, New Orleans, LA, for Plaintiff/Appellant, Un-wired Telecom Corp.
    Mark James Jeansonne, Attorney at Law, New Orleans, LA, for Amicus Curiae, Alltel Communications, Inc., AT&T Wireless Services.
    Russell Joseph States Jr., Toni Lewis Petrofes, Scofield, Gerard, Veron, et al., Lake Charles, LA, for Defendants Appel-lees/Appellants, Calcasieu Parish Police Jury, Calcasieu Parish School Board.
    Court composed of ULYSSES GENE THIBODEAUS, MICHAEL G. SULLIVAN, and BILLY HOWARD EZELL, Judges.
   It EZELL, J.

This case follows in the footsteps of a previous opinion by this court in Mercury Cellular Telephone Co. v. Calcasieu Parish of La., 00-318 (La.App. 3 Cir. 12/13/00), 773 So.2d 914, writ denied, 01-126 (La.3/16/01), 787 So.2d 314. This court found that Mercury, a telecommunications services provider, owed use taxes for telephones that it certified were purchased for resale, thereby avoiding sales tax, but in reality furnished the phones for a nominal amount or gratuitously with a cellular service contract and not collecting sales taxes. Another issue presented to this court is whether Elevating Boats, Inc. v. St. Bernard Parish, 00-3518 (La.9/5/01), 795 So.2d 1153, should apply limiting a parish’s combined interest, penalties, and attorney’s fees under the sales and use tax ordinance to 15%.

FACTS

As was observed by this court in Mercury, these wireless communication businesses purchase these phones and present a “resale certificate” certifying that they intend to resell the phones and collect sales tax from the customers. As a result the company is not accessed sales tax on items it purchases for resale, thereby avoiding double taxation. Mercury, 773 So.2d 914. However, in reality, the companies use the phones as an enticement to lure customers to choose its wireless service. These phones are not sold to customers, but are offered to customers for free, at a nominal charge, or at a discount. None of these facts have been denied.

Unwired Telecom Corp., formerly known as U.S. Unwired, Inc., and successor in interest by merger to Mercury Cellular Telephone Company, filed a petition for recovery of taxes paid under protest on April 20, 2001. The Calcasieu Parish School Board assessed Unwired with sales and use taxes and interest and penalties in the amount of $1,108,794.47 for the taxable period that began on January 1, 1996, and | aended on December 31, 1999. Just as in Mercury, Unwired argued that the taxes were based on the retail sales price paid by the customer from sales of wireless telecommunications equipment. Unwired argued that it properly collected and remitted taxes on the sales of the wireless telecommunications equipment during the taxable periods in question. In the alternative, Unwired argued that the School Board improperly computed the taxes based on the wholesale price paid by it for the equipment instead of the “cost price.” Unwired also argued that the maximum amount of interest, penalties, and attorney’s fees that could be assessed against it was 15%, citing Elevating Boats, Inc., 795 So.2d 1153.

The School Board filed a motion for summary judgment arguing that it is clear that Mercury applies to the facts of this case and the assessment was proper. A hearing was held on February 15, 2002. The trial court agreed that Mercury applied, but also found that Elevating Boats applied. It, therefore, granted the School Board’s motion for summary judgment and ordered Unwired to pay all taxes assessed against it. However, the trial court dismissed the School Board’s assessment of penalties and denied its request for attorney’s fees and ordered a refund in the amount of $162,696.94. Both parties appealed the judgment.

After the parties appealed, the Louisiana Legislature passed Act 85 in the 2002 session enacting La.R.S. 47:301(10)(v), (13)(g) and (h), and (18)(i), relative to sales and use taxes. Declaring that these sections were “all new law,” Act 85 provided for the definitions of “retail sale” or “sale at retail,” “sales price,” and “use.” It also established a new method for calculating the sales price for imposition of sales and use tax.

Contrary to the opinion of this court expressed in Mercury, the legislature expressed its opinion that providers of cellular, PCS, or wireless communication | o,devices are exempt from sales and use tax in Section 3 as follows and that the new law is interpretative:

The provisions of Section 1 of this Act are interpretative of R.S. 47:301(10), (13), and (18) for all taxable periods that ended prior to January 1, 2001, and are intended to explain and clarify their original intent, notwithstanding the contrary interpretation given in “Calcasieu Parish School Board v. Mercury Cellular Telephone Company”[Merewn/ Cellular Telephone Company v. Calcasieu Parish School Board], 2000-0318 (La.App. 3 Cir. 12/13/00), 773 So.2d 914, writ denied, 2001-0126 (La.3/16/01), 787 So.2d 314, and all cases consistent therewith. Therefore, the provisions of Section 1 of this Act shall be applicable to all claims existing or actions pending for any taxable period prior to January 1, 2001, and to all claims arising or actions filed on and after its effective date....

The legislature then enacted several new sections in which it clarified the intent of the law. Louisiana Revised Statute 47:301(10)(v) provides that a “retail sale” or “sale at retail” includes the:

sale or any other disposition of such cellular, PCS, or wireless telephone, any electronic accessories that are physically connected with such telephones and personal communication devices by the dealer to the purchaser, but shall not mean or include the withdrawal, use, distribution, consumption, storage, donation, or any other disposition of any such cellular, PCS, or wireless telephone, any electronic accessories that are physically connected with such telephones and personal communication devices by the dealer.

Louisiana Revised Statute 47:301(13)(g) provides that “sales price” is:

only the amount of money, if any, actually received by the dealer from the purchaser for each such cellular, PCS, or wireless telephone and any electronic accessories that or [sic] physically connected with such telephones and personal communication devices, but shall not include (i) any amount received by the dealer from the purchaser for providing mobile telecommunications services, or (ii) any commissions, fees, rebates, or other amounts received by the dealer from any source other than the purchaser as a result of or in connection with the sale of the cellular, PCS, or wireless telephone, any electronic accessories that are physically connected with such telephones and personal communication devices.

The term “use” is defined in La.R.S. 47:301(18)(i) as not including “the withdrawal, use, distribution, consumption, storage, donation, or any other disposition of any such cellular, PCS, or wireless telephone, any electronic accessories that are physically | ¿connected with such telephones and personal communications devices by the dealer.”

There is no doubt, but for the passage of Act 85, this court would find that summary judgment in favor of the School Board was appropriate based on Mercury. The issue is whether the legislature acted properly in declaring that Act 85 is interpretative and should be applied retroactively while specifically overruling this court’s interpretation of the law as it existed.

The School Board argues that Act 85 cannot produce a different result in this case for several reasons. It argues three constitutional violations: (1) it impermissi-bly relieves Unwired’s obligation to Calca-sieu Parish in violation of La. Const, art. 7, § 15; (2) it impermissibly abbreviates the prescriptive period to less than three years in violation of La. Const, art. 7, § 16; and (3) it creates nonuniform sales tax exclusions in violation of La. Const, art. 6, § 29(D).

It is widely recognized in Louisiana that constitutional attacks must be raised in the trial court, not the appellate court, and the constitutional challenge must be specially pleaded and the grounds for the claim particularized. Vallo v. Gayle Oil Co., Inc. 94-1238 (La.11/30/94), 646 So.2d 859. However, there is a recognized exception “when the statute applicable to the specific case becomes effective after the appeal is lodged in the higher court.” Mosing v. Domas, 02-12 p. 11, (La.10/15/02), 830 So.2d 967, 975, fn. 2. Therefore, we will address the constitutionality of Act 85 on appeal.

“Statutory interpretation and the construction to be given to legislative acts is a matter of law and rests with the judicial branch of the government.” Bourgeois v. AP. Green Indus., Inc., 00-1528, p. ll(La.4/3/01), 783 So.2d 1251, 1260. “[W]hen this court interprets legislative acts, it is giving meaning in particular cases to what the legislature has enacted as law; it is saying what the law is.” Id. The supreme |Bcourt also recognized and quoted Justice Dennis’ compelling logic in St. Paul Fire & Marine Ins. Co. v. Smith, 609 So.2d 809, 822 (La.1992):

Under our system of government with limited powers, “[i]t is emphatically the province and duty of the judicial department to say what the law is.” Marbury v. Madison, 1 Cranch 175[5 U.S. 137], 177, 2 L.Ed. 60 (1803) (Marshall, C.J.). Within the judicial department, this court is the final arbiter of the meaning of the state constitution and laws. Therefore, after this court has said what a law means, legislative action adopting a different meaning necessarily effects a change and not an interpretation of that law.
... Planiol also cautions against the lawmaker misusing his right of interpretation “in giving the name of ‘interpretive lav/ to laws which contain new provisions.” 1 M. PLANIOL, TREATISE ON THE CIVIL LAW, § 251 (La.St. L.Inst.Trans.1959). See also St. Paul Fire & Marine, 609 So.2d at 819 (“Of course, it is a different matter when the legislature actually amends previously enacted legislation by laws designated as interpretive. This again may be an improper exercise of power tending to attribute, contrary to constitutional guarantees, retroactive effect to new legislation.”) (quoting Yiannopoulos, Validity of Patents Covering Navigable Waterbottoms — Act 62 of 1912, Price, Carter and All That, 32 La.L.Rev. 1, 16 (1971)).

Bourgeois, at 1258-59, fn 8.

The School Board argues that Act 85 impermissibly extinguishes Unwired’s tax obligation because La. Const, art. 7, § 15 provides in pertinent part that “the legislature shall have no power to release, extinguish, or authorize the releasing or extinguishing of any indebtedness, liability, or obligation of a corporation ... to the state, a parish, or a municipality.” This constitutional provision relative to debts and obligations includes taxes. Huggett v. Montgomery, 167 So. 147 (La.App. Orl.1936).

Unwired and the attorney general argue that this court’s definition of a use tax as applied to wireless communication companies is not a correct interpretation of the law at the time Mercury was decided so the enactment of Act 85 did not release or extinguish an existing obligation because none existed. We disagree. This court did not create the tax in Mercury as suggested by Unwired. We simply interpreted the law as it was written by the Legislature as it is the judiciary’s function to do. The | (¡Legislature cannot create a new substantive law under the guise of interpretative legislation in order to give it retroactive effect because it does not like the result of its legislation as it stands. Interpretation of the law is a judiciary-function.

We find that Act 85 is clearly substantive law because it altered existing tax obligations when it redefined “sales” and “use”. This was clearly a violation of La. Const, art. 7, § 15. McNamara v. Bayou State Oil Corp., 589 So.2d 1099 (La.App. 2 Cir.1991), writ denied, 592 So.2d 1335 (La. 1992). Therefore, we find that Act 85 cannot be applied retroactively to extinguish any debts that Unwired owed prior to the enactment of new law which redefined “sales” and “use” for tax purposes as it is in violation of La. Const, art. 7, § 15. We also find that any attempt to effectuate a compromise in Section 3 pursuant to the “Amnesty Program” found in Section 4 is invalid because the new law cannot be applied retroactively, so there is nothing to compromise.

VALUE OF CELLULAR PHONES

Unwired argues that if this court finds Act 85 is inapplicable, that summary judgment was still improper because there are issues as to the proper “cost price” upon which Unwired’s use tax obligation should be based. It claims that the proper measure upon which its use tax should be based is the reasonable market value of each cellular phone at the moment the cellular phone is removed from inventory and sold to a customer and not the actual cost Unwired paid for the cellular phone. It argues that the reasonable market values of the cellular phones transferred by Unwired is the actual transaction value agreed to between Unwired and its customers, ie., the actual retail sales price paid by the customer. Unwired argues that in charging a discounted price, it was acting in a manner consistent with the other cellular providers in the local market area.

|7These are the same arguments that were made in Mercury even though Un-wired attempts to express it differently. In Mercury, this court noted that a certificate of resale was presented certifying that the cellular phones were purchased for resale, and Mercury was not charged sales tax, thereby avoiding double taxation. However, Mercury failed to resell some of the phones and failed to collect the appropriate taxes.

Unwired argues that it cannot compete with other cellular companies who also give away phones or include them as part of a package. However, this argument fails because these companies should have also paid use tax for these telephones under the terms of Mercury. We agree with the trial court that Mercury applies to this case, and therefore, summary judgment was appropriate.

PENALTY

School Board Ordinance Section 6.09 authorizes the collection of 15% interest per annum on outstanding taxes, plus a penalty in the amount of 25% of the outstanding taxes, plus 10% in attorney’s fees based upon the total amount owed; principal, interest, and penalties; Pursuant to the supreme court’s decision in Elevating Boats, 795 So.2d 1153, the trial court dismissed the School Board’s assessment of penalties and request for an award of attorney’s fees. The School Board appealed this judgment.

In Elevating Boats, the supreme court held that a parish’s combined interest, penalties, and attorney’s fees could not exceed the 15% interest penalties permitted by La.R.S. 33:2746. Later in Stowe-Woodward Co. v. Lincoln Parish Sch. Bd., 36,100 (La.App. 2 Cir. 6/14/02), 821 So.2d 694, unit denied, 02-2339 (La.11/22/02), 829 So.2d 1049, the second circuit noted that the supreme court had not addressed La.R.S. 47:1512, the attorney’s fees provision, which provides for an award of attorney’s fees [sin addition to the interest penalty set forth in La.R.S. 33:2746. The second circuit affirmed the trial court’s award of attorney’s fees in addition to interest on the tax due.

More recently, this court also addressed this very issue in Anthony Crane Rental, L.P. v. Fruge,' 02-635 (La.App. 3 Cir. 12/11/02), 833 So.2d 1070. In Anthony Crane Rental, the trial court, following a hearing on a motion for new trial, relied on Elevating Boats and only allowed 15% in interest and 10% in attorney’s fees and abated a 25% penalty. On appeal, this court agreed with the second circuit that the supreme court’s decision had failed to address La.R.S. 47:1512, but felt constrained to follow the pronouncement of the supreme court in Elevating Boats and held that the combined interest, penalties, and attorney’s fees could not exceed the 15% penalty permitted by La.R.S. 33:2746. Relying on our decision in that case, we find that the trial court was correct in holding that the penalties, interest, and attorney’s fees cannot exceed 15% and, thereby, dismissing the School Board’s assessment of penalties and request for attorney’s fees and ordering a refund of penalties.

For the above reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed equally to Unwired Telecom Corporation and Calcasieu Parish.

AFFIRMED.

THIBODEAUX, J., specially concurs and assigns written reasons.

| THIBODEAUX, J.,

specially concurring.

I fully agree with the majority opinion. However, with respect to the impact of Act 85 on this litigation, I refer to my concurring comments in Crooks v. Metropolitan Life Ins. Co., 00-947 (La.App. 3 Cir. 1/17/01); 779 So.2d 966. Although Crooks was vacated and set aside on the grounds of prematurity, Crooks v. Metropolitan Life Ins. Co., 01^166 (La.5/25/01); 785 So.2d 810, my views concerning the proper function of the legislative branch have not changed and are set forth with specificity in my concurring opinion in Crooks to which I still fully subscribe.


source: Caselaw Access Project

author: | WOODARD, Judge.

license: Public Domain

text:
    Harry A. LEBLANC v. WJ. TRAPPEY, Sr., et al.
    No. 02-1103.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 5, 2003.
    Writs Denied May 2, 2003.

      Louis R. Koerner, Jr., Koerner Law Firm, Kenneth W. Jacques, Law Office of Kenneth W. Jacques, New Orleans, LA, for PlaintiffiAppellant, Harry A. Leblanc.
    William A. Repaske, Edward P. Landry, Landry & Watkins, New Iberia, LA, for Defendants/Appellees, W.J. Trappey, Sr., Continental Insurance Company.
    Mary M. Hamilton, Voorhies & Labbe, Lafayette, LA, for Defendant/Appellee, State of Louisiana through the Department of Transportation & Development.
    Paul A. Holmes, Baton Rouge, LA, for Defendant/Appellee, City of New Iberia.
    Court composed of JOHN D. SAUNDERS, BILLIE COLOMBARO WOODARD, and ELIZABETH A. PICKETT, Judges.
   | WOODARD, Judge.

Mr. Harry A. Leblanc appeals from the trial court’s grant of a partial summary judgment, which declared that Mr. W.J. Trappey, Sr. cannot be held liable for a tree on his property, which allegedly caused the automobile accident between Mr. Leblanc and Ms. Chantel Martin. This was based on the trial court’s determination that Mr. Trappey did not have a duty, concerning the tree.

We find that there remains a genuine issue of material fact regarding this issue. Therefore, we reverse the judgment and remand.

This case arises out of an automobile accident in New Iberia, Louisiana, in 1996. When Ms. Martin crossed over into the oncoming lane of traffic on Parkview Drive in order to avoid a fallen tree branch or branches, blocking her own lane, she collided with Mr. Leblanc’s vehicle. Injuries resulted. Mr. Leblanc and Ms. Martin settled, but Mr. Leblanc brought suit against Trappey, the owner of the property on which the tree was situated. However, although some of the branches or even some of the roots may have extended onto Mr. Trappey’s private property, at least, most of the tree was in a right-of-way that Mr. Trappey’s ancestors-in-title had granted to the State of Louisiana.

Accordingly, Mr. Leblanc amended his petition to include the State, through the Department of Transportation and Development (DOTD), as well as the City of New Iberia (City), as Defendants and joint tortfeasors with Mr. Trappey in this suit. However, he did not add these two Defendants until well after one year had passed since the date of the accident. Consequently, the potential problem that he faces is that his claims against them have prescribed because if Mr. Trappey has no liability, he cannot be a joint tortfeasor, and Mr. Leblanc’s suit against him did not interrupt prescription against the added Defendants.

| ¡.Procedural History

DOTD and the City filed exceptions of prescription. Mr. Leblanc filed a motion for partial summary judgment against all three Defendants, concerning liability. DOTD filed a cross-motion for partial summary judgment, asking the court to rule that Mr. Trappey could not have any liability because he did not have a duty. The trial court denied Mr. Leblanc’s motion against DOTD and the City but granted it against Mr. Trappey, based on a stipulation that he had entered into, admitting that he was 1% at fault. However, the trial court determined that the stipulation had no effect on any other issues relevant to the other parties, including prescription. Since Mr. Leblanc did not assign this as error on appeal, nor did he designate the stipulation as part of the record on appeal, we will not address it.

The trial court, also, granted DOTD’s motion for partial summary judgment, finding that Mr. Trappey had no duty and, therefore,, could not be hable to Mr. Leblanc. Mr. Leblanc appealed that judgment, as well as the court’s denial of his own motion for summary judgment against DOTD and the City. DOTD moved to dismiss Mr. Leblanc’s appeal of the denial of summary judgments, since the denial is, neither, a final appealable judgment nor can it be designated as appealable. This court granted DOTD’s motion, dismissing the appeal of the denial of summary judgments. Therefore, the only issue before us is Mr. Leblanc’s appeal of the trial court’s grant of partial summary judgment to DOTD, based on its finding that Mr. Trappey could not be found liable because he had no duty.

The trial court designated this as a final appealable judgment because it is disposi-tive of the issue of prescription and, therefore, could dispose of the entire case. Thus, we must determine whether there is any genuine issue of material fact, concerning whether Mr. Trappey had a duty for the tree that allegedly caused the accident between Mr. Leblanc and Ms. Martin.

I «Duty

“A defendant’s duty to conform his conduct to a specific standard may be express or implied, either statutorily or juris-prudentially.” Mr. Leblanc cites multiple statutes to support his allegation that Mr. Trappey had a duty. We find only one of these to be applicable in the case sub judice; namely, La.Civ.Code art. 2317.1, which provides, in pertinent part:

The owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care.

Thus, absent the right-of-way agreement, this article clearly imposes an affirmative duty on Mr. Trappey. However, jurisprudence reveals that the owner of a thing is not always its custodian. To determine whether this article imposes a duty on Mr. Trappey, we must ascertain whether he had custody or garde of the tree. “The garde is the obligation imposed by law on the proprietor of a thing, or on one who avails himself of it, to prevent it from causing damage to others.” Our supreme court in Dupree, recently reviewed the notion of garde, stating:

The fault of the custodian is based upon his failure to prevent the thing under his garde from causing an unreasonable risk of injury to others. Rather than the loss falling upon some innocent third person, the loss resulting from the creation of the risk falls upon the person to whom society allots its garde. The rationale is the custodian is in a better position than the innocent victim to detect, evaluate, and take steps to eliminate an unreasonable risk of harm which arises from the thing.

|4The problem in determining garde in the instant case is that, while Mr. Trappey owned the property, in question, the DOTD had a right-of-way on the section on which the tree was situated. Thus, questions arise concerning whose responsibility it was to maintain the right-of-way section of the property and who had the right to remove the tree. Mr. Trappey’s ownership of the land creates a presumption that he had garde of the tree on it. This must be rebutted by proof that he did not have supervision or control over it. DOTD argues that the right-of-way, which Mr. Trappey’s ancestors-in-title granted, constitutes such proof.

The grant of a right-of-way is “[a] predial servitude, which is a charge on a servient estate for the benefit of a dominant estate.” This simply means that the DOTD’s right-of-way, the dominant estate, benefits from the burden on Mr. Trappey’s property, the servient estate. Codal law dictates that doubts as to the extent of a predial servitude are to be resolved in favor of the servient estate. Therefore, doubts about garde of things on the right-of-way should be resolved in Mr. Trappey’s favor, preserving his garde of them. However, since this is a conventional predial servitude, meaning that it was established by contract, the terms of that contract override any statutory provision. Thus, we turn to an analysis of the agreement which granted the right-of-way.

Grant of right-of-way

The servitude agreement governs the DOTD’s rights to the servitude. The agreement, at issue, gives to the State:

|s“a right of way or servitude for the construction, improvement and maintenance of the aforesaid highway for the full distance along, over and across our respective lands, subject to the following conditions:
(4) The Department of Highways of the State of Louisiana, its Engineers, Agents and/or Contractors shall remove from the right of way hereby conveyed, all buildings and/or improvements, together with their appurtenances, and relocate said buildings and/or improvements, together with their appurtenances, on the remaining lands of the owner or owners of the said building and/or improvements, all as proscribed and/or designated by the District Engineer of the said Department.
(5) It is further expressly understood and agreed between the parties hereto that the right of way herein granted is solely for the purpose set out in the preceding paragraph and is a conveyance of a servitude across the lands hereinabove described but not a conveyance of the full title thereto, and the Grantors by these presents especially do not transfer any right to oil, gas and other minerals lying beneath the area herein subjected to said servitude for right of way purposes, it being specifically understood, however, that while no exploration, drilling, nor mining of gas, oil or other minerals of any kind shall be conducted upon the area covered by said servitude of right of way, there may be directional drilling from adjoining lands to extract the oil, gas or other minerals from under the area subject to said servitude.

(Emphasis added.)

DOTD argues that the tree is an “improvement.” Therefore, the agreement transfers garde of the tree to it. We agree that the tree is an improvement. While this term is not specifically defined in the contract, we must give it its plain, ordinary, and popular meaning. Generally, its prevailing meaning includes landscaping, which encompasses trees. Our conclusion is supported by the implied definition given to improvements within our civil code. Specifically, La.Civ.Code art. 493, which is entitled “Ownership of improvements,” applies to “buildings, other constructions permanently attached to the ground, and plantings made on the land[.]” (Emphasis added.)

| [Notwithstanding our determination that the tree is an improvement under the contract, we cannot agree that the contract unambiguously transfers complete garde of it to DOTD. Our supreme court stated that:

[I]t is clear that more than one party may have custody or garde of a thing under La. Civ.Code art. 2317, determined by an examination of the parties’ actions and relationships to the thing causing the injury.

The contract is ambiguous regarding whether Mr. Trappey shared any garde of the tree with DOTD. While DOTD certainly had the right to remove the tree, it is not clear from the language of the contract that it held the exclusive right to remove it. We recognize that had it decided to remove it, Mr. Trappey could not have prevented them from doing so, and the only right he would have in this regard, is that, theoretically, he would be entitled to possession of the tree, once removed. However, if he had decided that he wanted the tree removed because, for example, he felt it presented a danger, because it was blocking the sunlight to his office, or just because he did not find it aesthetically pleasing, we see nothing in the contract that prohibited him from removing it, himself, or having another remove it.

Moreover, his own testimony establishes that he was on the property, at least, five days of the week and that he had noticed the tree’s condition. In fact, he had “looked at it and wondered how long it would stay up.” While he did not assume that he was responsible for it, apparently, he did think that his permission might be required in order to cut it down. He stated:

I mean, looking at the tree three (3) or four (4) times a day and seeing what condition is the tree, I suspected one day somebody’s going to come knock on the door and say, “Can we come and cut this thing out? It’s not on our property.” I guess that’s what I thought.

Thus, apparently, even Mr. Trappey was confused about whether he had any garde of the tree. Clearly, then, garde is a disputed issue of material fact, which should have precluded summary judgment.

|7The trial court held that La.R.S. 48:268 prohibited him from doing anything about the tree, and consequently, he had no duty, as a matter of law. We disagree with the trial court that this statute is dispositive. It provides:

The felling, topping, or pruning of trees or shrubs .to accommodate, operate, or maintain any installation on the right of way, without the prior written approval of the secretary or his representative, is prohibited. The secretary may use his discretion in the granting of this approval.

This statute is expressly limited in its scope “to accommodate, operate, or maintain any installation on the right of way.” It does not encompass the general maintenance of the property. Examples of “installations,” embodied in this statutory scheme, are found within the subheading “Utilities and facilities” and include signs, conduits, cables, and electric lines. This suggests the statute contemplates that parties, who have joint use agreements of the servitude on the property must get DOTD’s permission. However, it does not necessarily apply to the landowner, who has retained any rights not specifically delineated in the servitude agreement.

Therefore, the analysis only leads us back to the actual terms of the servitude agreement. The extent to which the parties intended for Mr. Trappey to relinquish control over the property, subject to the right-of-way, is unclear. This is a highly fact driven determination. Accordingly, it is rarely one to be made in a summary judgment proceeding. The instant case is no exception. We reverse.

CONCLUSION

Mr. Leblanc’s duty in this case depends on whether he had any garde of the tree, in question. Since that issue is an intensely factual one, based on intent, we find Isthat it was inappropriately decided on summary judgment. Therefore, we reverse the judgment and remand for a full trial, assigning costs of this appeal to DOTD.

REVERSED AND REMANDED.

PICKETT, J., concurs.

      . See La.Civ.Code art. 2324(C).

      . In re S.S. v. State, 00-953 (La.App. 3 Cir. 9/20/00); 771 So.2d 187.

      . LeBlanc v. Trappey, 02-510 (La.App. 3 Cir. 10/16/02), 829 So.2d 671, an unpublished opinion.

      . Porteous v. St. Ann’s Café & Deli, 97-837 p. 5 (La.5/29/98); 713 So.2d 454, 457.

      . Dupree v. City of New Orleans, 99-3651 (La.8/31/00); 765 So.2d 1002.

      . King v. Louviere, 543 So.2d 1327, 1329 (La.1989).

      . Dupree, 765 So.2d at 1008-9.

      . Id.

      . Id.

      . La.Civ.Code art. 646.

      . La.Civ.Code art. 730.

      .La.Civ.Code art. 697.

      . Id.

      . La.Civ.Code art.2047.

      . Dupree, 765 So.2d at 1009.

      . See La.R.S. 48:381.

      . See La.Civ.Code art. 730.

      . Id. Dupree, 765 So.2d 1002.

        . Touchet v. Estate of Bass, 94-1159 (La.App. 3 Cir. 3/22/95); 653 So.2d 83, writ denied, 95-1020 (La.6/2/95); 654 So.2d 1112.


author: hDECUIR, Judge.

text:
    Kim DEROUSELLE v. VINCE ENTERPRISES, INC., et al.
    No. 02-0945.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 5, 2003.
    Edward P. Landry, Landry, Watkins, Repaske & Breaux, New Iberia, LA, for Vince Enterprises, Inc., CNA Insurance Companies.
    Glenn J. Armentor, The Glenn Armentor Law Corporation, Lafayette, LA, for Kim Marcus Derouselle.
    Court composed of NED E. DOUCET, JR., Chief Judge, and OSWALD A. DECUIR and MARC T. AMY, Judges.
   hDECUIR, Judge.

Vince Enterprises, Inc. and CNA Insurance Companies appeal a workers’ compensation judgment ordering that they provide medical transportation; provide twelve hours per week, minimum, quality of life transportation; and awarding penalties and attorney fees to claimant, Kim Marcus Derouselle. For the reasons that follow, we affirm.

FACTS

On July 13,1999, while installing insulated ceiling panels for Vince Enterprises, Inc., Marcus Derouselle fell fifteen to twenty feet from a forklift platform. He landed on the crown of his skull, shattering multiple vertebrae in his back. While at the emergency room he suffered a heart attack and mild brain damage. Marcus is paralyzed from the neck down and only capable of swallowing and speaking on this own. He operates his electric wheelchair with a chin control and “sip and puff’ device. He requires twenty-four hour nursing care.

Marcus was hospitalized for over two years at the Touro Rehabilitation Center. During that time, while he was being weaned from the ventilator and feeding tube, his infant daughter was born and became capable of interacting with him. This development was invaluable in improving Marcus’ outlook, and he soon progressed to a level that allowed Marcus to leave the facility for “outings.” Marcus’ physician indicated that these outings were critical to maintaining his emotional stability and to facilitate his recovery. Vince’s insurer, CNA, initially paid for transportation for these outings. However, as Marcus progressed his physician recommended an independent living circumstance where he could be with his family.

The parties argued for many months over how to best provide this for Marcus. During this time, CNA provided on demand, with twenty-four hour notice, medical and quality of life transportation for Marcus. Unfortunately, this service was ^unreliable. Marcus was forced to wait long periods of time, miss appointments with his doctors, and do without medication because of late or improperly equipped transport services. Finally, the parties agreed on living arrangements for Marcus. His wife took on a full-time job to support the family. Marcus and his wife were forced to purchase a car to replace his wife’s unreliable transportation. In doing so they lowered their monthly note by $70.00 per month. CNA’s claims representative was angry that they did not purchase a van that CNA could retrofit to accommodate his wheelchair and immediately terminated all quality of life transportation. The claims representative sought no medical advice before terminating benefits, nor did she inquire into the family’s ability to afford a van.

Marcus sought relief from the workers’ compensation judge. The workers’ compensation judge ordered Vince and CNA to provide medical transportation and a minimum of twelve hours per week quality of life transportation and that such transportation can be provided by leasing a medically accommodated van and providing certified nurse’s aides to drive and an LPN for medical care on demand. In addition, the workers’ compensation judge ordered penalties of $1,000.00 and attorney fees of $2,500.00 for the arbitrary and capricious handling of the claim. The defendants lodged this appeal.

QUALITY OF LIFE TRANSPORTATION

Vince and CNA allege that the workers’ compensation judge erred in ordering them to pay for transportation for quality of life excursions. They argue that such transportation is not necessary medical transportation which they are required to pay under the provisions of La.R.S. 23:1203(d). They argue that the jurisprudence specifically provides that payment for non-medically related transportation such as |acourt appearances is not required. See Husband v. Insurance Company of North America, 284 So.2d 787 (1973).

Marcus argues that this transportation is medically necessary for his continued recovery. While he does not refer to La. R.S. 23:1203(a), this argument seems to suggest that payment is required as a medical expense rather than a travel reimbursement. The workers’ compensation judge was apparently persuaded by that argument.

In discussing burden of proof and standard of review with regard to medical expenses, this court has stated that:

When an employee has a compensable injury under the Workers’ Compensation Act, the employer has the duty of providing “all necessary drugs, supplies, hospital care and services, [and] medical and surgical treatment....” La.R.S. 23:1203(A); See also Cleveland v. Delhi Guest Home, 29,506 (La.App. 2 Cir. 5/7/97); 694 So.2d 607. Treatment necessary to alleviate pain suffered by the employee due to his disability is included. Barry v. Western Elec. Co., Inc., 485 So.2d 83 (La.App. 2 Cir.), writ denied, 487 So.2d 441 (La.1986). The plaintiff must prove the necessity of the treatment and the causal connection between the treatment and the employment-related accident by a preponderance of the evidence. Cleveland, 29,506; 694 So.2d 607. The issues of necessity of treatment and causal relationship are questions of fact; accordingly, the applicable standard of review regarding the hearing officer’s findings is manifest error-clearly wrong. Alleman v. Fruit of the Loom-Crowley, 96-1246 (La.App. 3 Cir. 3/5/97); 692 So.2d 485.

Scherer v. Interior Plant Design, 98-702, p. 9-10 (La.App. 3 Cir. 10/28/98), 724 So.2d 797, 802, writ denied, 99-0297 (La.3/26/99), 739 So.2d 792.

In this case, Marcus presented evidence from his treating physician asserting that these quality of life excursions, designed to integrate this profoundly injured man into society, were medically necessary to his treatment, at least from an emotional standpoint. Marcus also put on evidence from a life care planning expert demonstrating that such excursions were part of the plan designed by the planner with the assistance of Marcus’ physician. The defendants put on no expert testimony to rebut the assertions of Marcus’ expert. Under this unusual and limited factual | ¿circumstance, we find that the workers’ compensation judge could have reasonably concluded that these quality of life excursions were necessary for the treatment of this profoundly paralyzed individual. Accordingly, we find no manifest error in the workers’ compensation judge’s order requiring a minimum of twelve hours a week of quality of life transportation on demand.

PENALTIES AND ATTORNEY FEES

Vince and CNA contend that the workers’ compensation judge erred in awarding penalties and attorney fees. We disagree.

The determination whether an employer should be cast with penalties and attorney’s fees in a workers’ compensation case is essentially a question of fact and a workers’ compensation judge’s finding shall not be disturbed absent manifest error. Foster v. Liberty Rice Mill, 96-438 (La.App. 3 Cir. 12/11/96), 690 So.2d 792. We find no manifest error in this workers’ compensation judge’s award of penalties and attorney’s fees. The testimony at trial revealed that the claims adjuster ceased payment without medical advice and in an arbitrary, capricious and retaliatory response to Marcus’ purchase of a vehicle.

CONCLUSION

For the foregoing reasons, the judgment of the workers’ compensation judge is affirmed. All costs of these proceedings are taxed to defendant, CNA Insurance Companies.

AFFIRMED.


author: hAMY, Judge.

text:
    STATE of Louisiana v. Bertman BALLOU, III.
    No. 02-0954.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 5, 2003.
    Michael Harson, District Attorney, Lafayette, LA, for Appellee, State of Louisiana.
    Peggy J. Sullivan, Louisiana Appellate Project, Monroe, LA, for Defendant/Appellant, Bertman Ballou, III.
    Court composed of NED E. DOUCET, JR., Chief Judge, OSWALD A. DECUIR and MARC T. AMY, Judges.
   hAMY, Judge.

The defendant pled guilty to first degree robbery and was sentenced by the trial court. After a motion to reconsider the sentence was denied, the defendant appealed. For the following reasons, we affirm.

Factual and Procedural Background

The defendant, Bertman Ballou, III, was charged by bill of information on June 6, 2001 with armed robbery with the use of a firearm and contributing to the delinquency of a juvenile along with three other co-defendants. The defendant ultimately pled guilty to the lesser included offense of first degree robbery; and in exchange for the plea, the contributing to the delinquency of juvenile charge was dismissed.

On March 25, 2001, the trial court sentenced the defendant to serve nine years at hard labor without benefit of probation, parole, or suspension of sentence. A motion to reconsider the sentence was filed. However, that motion was denied without a hearing on April 4, 2002. The defendant now appeals rasing the following assignment of error:

The sentence of nine years at hard labor without benefit of parole, probation or suspension of sentence imposed upon Bertman Ballou, III, constituted an excessive sentence under the facts and circumstances of this case and considering the personal history of Mr. Ballou.

Discussion

Standard of Review

The trial court is in the best position to consider the aggravating and mitigating circumstances of a particular case; and, as a result, the trial court is given broad Indiscretion in sentencing. State v. Cook, 95-2784 (La.5/31/96); 674 So.2d 957, cert denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996). Accordingly, when reviewing a sentence, an appellate court will determine whether the trial court abused its broad discretion, not whether another sentence may have been more appropriate. State v. Planco, 96-812 (La.App. 3 Cir. 3/26/97); 692 So.2d 666.

Excessive Sentence

In his brief, the defendant contends that the trial court failed to adequately consider several factors provided by La.Code Crim.P. art. 894.1 and the facts of this case. The defendant notes that he was only twenty-two years old when this offense occurred. The defendant further notes that, while he was a principal to the offense, he only drove the car. Lastly, the defendant asserts that he did not use or possess a weapon during the commission of the offense. Accordingly, the defendant argues that he should not have been sentenced to nine years at hard labor under these facts. We find that the defendant’s assignment of error lacks merit.

Addressing the issue of sentencing, a panel of this court stated:

In sentencing a defendant, the trial court must specifically state for the record the considerations taken into account and the factual basis for the sentence. La.Code Crim.P. art. 894.1(C). Although not all aggravating and mitigating factors listed in Article 894.1(A) must be referenced by the sentencing judge, the record must affirmatively reflect that adequate consideration was given to codal guidelines in particularizing the defendant’s sentence. State v. Smith, 433 So.2d 688 (La.1983).

State v. Blackmon, 99-391, p. 7 (La.App. 3 Cir. 11/3/99); 748 So.2d 50, 53-54, writ denied, 99-3328 (La.4/28/00); 760 So.2d 1174.

Both the United States and Louisiana Constitutions prohibit cruel, excessive, or unusual punishment. U.S. Const, amend. VIII; La. Const, art. I, § 20. Although legislative enactments are presumed constitutional under both the Federal and State ^constitutions, a sentence that falls within the statutory limits may be excessive under certain circumstances. See Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976); State v. Griffin, 495 So.2d 1306 (La.1986); State v. Gordon, 94-1017 (La.App. 3 Cir. 3/1/95); 651 So.2d 492. Specifically, a sentence within the statutory limits is excessive when that the sentence is “so grossly disproportionate to the severity of the crime as to shock our sense of justice or ... makes no measurable contribution to acceptable penal goals and, therefore, constitutes nothing more than a needless imposition of pain and suffering.” State v. Jordan, 98-101, p. 7 (La.App. 3 Cir. 6/3/98); 716 So.2d 36, 39.

In the present case, the trial court provided the following oral reasons for imposing the sentence on the defendant:

All right. Mr. Ballou, while you are as guilty as Mr. Malveaux in this crime, you did not hold the weapon and apparently were the driver of the vehicle, since you were the only one of the four identified by the victims.
I am very concerned that you are a convicted felon, having committed this crime while on probation. You have family members who obviously care about you and have written to me telling me what a good person you are, but your record indicates otherwise. A young man for your age to be a second time felon indicates something other than being a good person. I did not take into account your arrests; they are not convictions. However, I must consider your prior convictions. I have reviewed the Code of Criminal Procedure Articles relative to aggravation and mitigation, as well as the facts in this crime, as well as your prior record, Sir.
I sentence you to serve nine years at hard labor to be served without parole, probation or suspension of sentence.

The trial court generally referred to La. Code Crim.P. art. 894.1, the facts of this case, and the defendant’s prior record. The trial court also considered the ^defendant’s prior felony conviction to be an aggravating factor. Specifically, the trial court noted that not only was the defendant on probation at the time that he committed first degree robbery, but, he also had acquired two felony convictions at a very young age. Due to these considerations, we find that the trial court provided a sufficient basis for the sentence in accordance with La.Code Crim.P. art. 894.1.

In addition, the defendant faced the possible incarceration of three to forty years without benefit of parole, probation or suspension of sentence for the conviction of first degree robbery. See La.R.S. 14:64.1(B). In fight of the aggravating factors cited by the trial court and the possible sentence of forty years without benefit of parole, probation or suspension of sentence, we also find that the trial court did not abuse its discretion when it sentenced the defendant to nine years at hard labor without benefit of probation, parole, or suspension of sentence. Furthermore, under the facts and circumstances of this case, the defendant’s sentence is not grossly disproportionate to the severity of the crime and does not constitute a needless imposition of pain and suffering.

Errors Patent

In accordance with La.Code Crim.P. art. 920, this appeal was reviewed for errors patent on the face of the record, and none were found.

DECREE

For the foregoing reasons, the sentence of the defendant, Bertman Ballou, III, is affirmed.

AFFIRMED.

      . See La.R.S. 14:64 and La.R.S. 14:64.3.

      . See La.R.S. 14:92(A)(11)(a).

        .See La.R.S. 14:64.1.

      . The pre-sentence investigation report provides that the victim, Kippy Robinson, stated that he was washing his car at Johnny’s Car Wash in Lafayette, Louisiana, when the crime occurred. Mr. Robinson said that, while washing his car, a white Cadillac pulled up near his vehicle, and three men exited the Cadillac. One of the men pointed a small silver automatic pistol at the victim while the other two took items from the victim. Mr. Robinson also stated that another man remained in the Cadillac, backed the Cadillac while the men took items from the victim, and drove away once the other men had completed the robbery. The defendant is believed to be the man who remained in the Cadillac.

      . In addition to several arrests and pending cases, the pre-sentence investigation report provides that the defendant had two prior convictions. First, the defendant was convicted of simple burglary in 1999. He was sentenced to seven years at hard labor, suspended, with five years active supervised probation. Second, the defendant was conviction of simple battery in 2000. The defendant was sentenced thirty days in parish jail, suspended, and one year unsupervised probation.


author: ^THIBODEAUX, Judge.

text:
    STATE of Louisiana v. Dominick Eugene PATTERSON.
    No. 02-879.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 5, 2003.
    William Noland, New Orleans, LA, for Appellant, Legion Insurance Company.

      Julie E. Cullen, Assistant Attorney General, Baton Rouge, LA, for Appellee, State of Louisiana.
    Court composed of ULYSSES GENE THIBODEAUX, MICHAEL G. SULLIVAN, and BILLY H. EZELL, Judges.
   ^THIBODEAUX, Judge.

Appellant, Legion Insurance Company (“Legion”), appeals the judgment of the trial court denying its Petition for Nullity of Judgment of Bond Forfeiture and Motion for Discharge and Release of Surety. On December 5, 2000, a bench warrant was issued and bond forfeiture ordered against the defendant, Dominick Eugene Patterson, for failure to appear in court. Legion asserts that the State failed to introduce proper evidence of notice to Mr. Patterson of the arraignment set for December 5, 2000, rendering the judgment of forfeiture null and void.

For the following reasons, we affirm the trial court’s judgment of bond forfeiture.

I.

ISSUES

We shall consider the following issues:

(1) whether the trial court erred in denying Legion’s petition for nullity of judgment of bond forfeiture and motion for discharge and release of surety?
(2) whether the trial court erred in finding that the State of Louisiana had provided proper evidence of notice to the defendant requiring his court appearance on December 5, 2000?

Since these issues are so interrelated, we shall address them together.

II.

FACTS

On June 27, 2000, Dominick Eugene Patterson was arrested in Allen Parish for violations of La.R.S. 32:64 and La.R.S. 40:966(A)(1), impeding the flow | gof traffic and possession of marijuana with intent to distribute, respectively. On June 30, 2000, Legion and Mr. Patterson executed an appearance bond obtaining the release of the defendant. This bond did not indicate a court appearance date.

On August 8, 2000, Mr. Patterson was charged by bills of information with the offenses cited on June 30, 2000. Following this proceeding, Mr. Patterson, who was personally served notice for court appearance, failed to appear in court on December 5, 2000. Motion for judgment of bond forfeiture was filed on January 9, 2001. Judgment of bond forfeiture was signed and entered based on Patterson’s nonappearance.

Legion filed a Petition for Nullity of Judgment of Bond Forfeiture and Motion for Discharge and Release of Surety on October 1, 2001. Legion asserted that proper evidence of notice to the defendant was not introduced into the trial court at the December 5, 2000 hearing. On April 23, 2002, the trial judge denied the appellant’s petition for nullity. Legion now appeals the April 2002 judgment.

III.

LAW AND DISCUSSION

Legion asserts that the State failed to introduce proper evidence that Mr. Patterson was served with notice to appear on December 5, 2000. Relying on this claim, Legion argues that the court improperly rendered a judgment of bond forfeiture. We disagree.

The applicable statute for bond forfeiture proceedings is La.R.S. 15:85 (emphasis added):

All bonds taken to secure the appearance of any person before any court executed in the state of Louisiana |sshall be forfeited and collected as follows:
(1) Failure to appear and answer. If at the time fixed for appearance the defendant fails to appear and answer when called, the judge, on motion of the prosecuting attorney, upon hearing of proper evidence including: the bail contract; the power of attorney if any; and the notice to the defendant and the surety as required by Article 344 of the Code of Criminal Procedure, shall immediately and forthwith issue a warrant for the arrest of the person failing to appear and order a judgment decreeing the forfeiture of the bond and against the defendant and his sureties in solido for the full amount of the bond.

Louisiana Code of Criminal Procedure article 844(B)(1) states “[wjhen a bail bond does not fix the appearance date, and the presence is required of a person who has been released on bail, the defendant and his personal surety or the commercial surety or the agent or bondsman who posted the bond for the commercial surety, shall be given written notice of the time, date, and place the principal is required to appear.” Otherwise, the surety is released from liability should the defendant not appear. La.Code Crim.P. art. 344(B)(4).

Mr. Patterson failed to appear in court to enter his plea. Legion asserted that it was uncertain whether Mr. Patterson was officially notified to appear in court on the date set for hearing. The hearing testimony is as follows:

The Court: Dominick Eugene Patterson
Mr. Demoruelle: I don’t know if he was notified to be here today officially.
The Court [reading the Sheriffs service return]: Yes sir, this is pretty official.
Mr. Demoruelle: It’s official enough.
The Court: All right. In CR-2000-2944, State of Louisiana versus Dominick Eugene 14Patterson, let the record reflect that the name of Mr. Patterson was sounded in the courtroom with no response. He was served personally by Deputy Nook Manuel of the Allen Parish Sheriffs Department. That service having been personal service on November 14, 2000. He was noticed to be in court to enter a plea today. He has failed to appear. Accordingly, let a bench warrant be issued for his arrest and bond forfeiture is ordered.

Failure to introduce evidence of actual notice to the defendant does not void the bond forfeiture. In State v. Ledener, 253 La. 915, 221 So.2d 47 (La.1969), Summit Fidelity and Surety Company asserted a similar claim against the State requesting that the bond forfeiture be set aside. According to the surety, “the returns of the sheriff and of his deputies showing the required services [was] not sufficient [for bond forfeiture], and that it [was] necessary that the process servers be called to testify thereto.” Id. at 48-49. The trial court entered judgment based on Summit’s argument that a bond forfeiture could not be issued on a sheriffs return. The Louisiana Supreme Court disagreed.

At commencement of this action in Le-dener, La.R.S. 15:85(A) read as follows:

All bonds taken to secure the appearance of any person before any district court, otherwise than at a preliminary examination, shall be forfeited and collected as follows:
(1) If, [a]t the time fixed for appearance, such person fails to appear and answer when called the judge shall, [o]n motion of the district attorney, upon hearing of proper evidence including service or attempted service upon the defendant and service upon the surety, [forthwith enter a judgment decreeing the forfeiture of the bond and against such person and his sureties in solido for the full amount thereof.

Id. at 48.

[.^According to the court, Summit relied on the language in the above provision to determine ... that, “at the hearing, evidence must be adduced by the state to show service or attempted service (of notice to appear) upon the accused and on the surety.” Ledener, 221 So.2d at 48.

In its analysis, the supreme court stated:

We disagree with the surety’s contention. The language of the statute clearly reflects that on a simple motion of the state the hearing of evidence of service is to occur when the accused fails to appear in accordance with the terms of the bond; and that the judgment is to be entered ‘forthwith’ — i.e., immediately or without delay. The notice referred to is, of course, that given to the accused and to the surety [o]f the time fixed for the accused’s appearance. Moreover, Article 1292 of the Louisiana Code of Civil Procedure provides that the return of the sheriff of citation or other process, ‘when received by the clerk, shall form part of the record, and shall be considered prima facie correct.’ (Incidentally, it is now well established that, except for the purpose of determining jurisdiction, proceedings involving appearance bond forfeitures are civil in nature, they arising out of a contract under private signature....) Again, in State v. Myers et al., 221 La. 173, 59 So.2d 111, we found that the requirement of proof of service was satisfied by the recitation in the sheriffs return.

Id. at 49. (Citations omitted).

Currently, Louisiana Code of Civil Procedure article 1292 (emphasis added) reads:

The sheriff shall endorse on a copy of the citation or other process the date, place, and method of service and sufficient other data to show service in compliance with law. He shall sign and return the copy promptly after the service to the clerk of court who issued it. The return, when received by the clerk, shall form part of the record, and shall be considered prima facie correct. The court, at any time and upon such terms as are just, may allow any process or proof of service thereof to be amended, unless it clearly appears that material prejudice would result to the substantial rights of the party against whom the process issued.

| (¡Based on the above analysis, we find that the trial judge’s reading of the sheriffs return into the record in this case is proper evidence that notice was given to Mr. Patterson. La.R.S. 15:85(1) does not require that evidence be physically introduced into the record to issue bond forfeiture, but requires only a “hearing of proper evidence.” The above trial court recitation demonstrates that Mr. Patterson was personally served by the sheriff on November 14, 2000. The trial judge read aloud the sheriffs return into the record. As a result, proper evidence of notice to the defendant was established, and the trial judge properly denied Legion’s petition for nullity based on Mr. Patterson’s failure to appear in court.

IV.

CONCLUSION

For the above reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed to the appellant, Legion Insurance Company.

AFFIRMED.

      . Patterson also was charged with violating La.R.S. 32:402, operating a motor vehicle without a license.

      . Mr. Patterson’s attorney.


author: _JjAMY, Judge.

text:
    HANOVER COMPRESSOR COMPANY v. DEPARTMENT OF REVENUE, STATE OF LOUISIANA.
    No. 02-0925.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 5, 2003.

      Bruce James Oreck, Nicole Crighton, Jesse R. Adams, III, Oreck, Bradley, Crighton, Adams & Chase, New Orleans, LA, for Plaintiff/Appellee, Hanover Compressor Company.
    Dwana Christy King, Attorney for the Secretary of the Department of Revenue, Baton Rouge, LA, for Defendant/Appellant, State of Louisiana, Department of Revenue.
    Court composed of NED E. DOUCET, Jr., Chief Judge, OSWALD A. DECUIR and MARC T. AMY, Judges.
   _JjAMY, Judge.

The Department of Revenue appeals the affirmation of a decision of the Board of Tax Appeals, concluding that no sales or use taxes were due from the plaintiff compression company for natural gas consumed in its operation. For the following reasons, we affirm.

Factual and Procedural Background

Hanover Compressor Company is engaged in the compression of natural gas produced from its customer’s wells. This compression occurs at the wellhead after a liquid/gas mixture is obtained from the well. According to testimony, the liquids and gas are separated. However, the gas is still in a “wet” form. This wet gas is compressed in the plaintiff’s compression unit. A portion of the wet gas mixture is used to fuel Hanover’s compression unit. The remaining liquid is subsequently removed, with the natural gas then traveling through a meter, monitoring the volume.

Hanover’s compression services are performed pursuant to a contract entered into with its customers entitled “Contract Gas Compression Master Equipment & Operating Agreement.” A portion of the contract requires that the customer shall “furnish free use of suitable, sweet, dry natural gas fuel for engine use.” It is the consumption of the gas mixture that was the subject of an assessment by the Louisiana Department of Revenue. The assessment followed an audit, encompassing the period between January 1993 and July 1995. The Department of Revenue asserted that taxes were owed on Hanover’s consumption of the gas mixture for purposes of fueling its compression units.

Hanover filed a Petition for Redetermi-nation of Assessment with the Board of Tax Appeals. Hanover alleged that they rendered their services pursuant to a | ^contract that provided them with “free use” of the gas mixture that was at all times owned by the customer, the producer of the gas. In the petition, Hanover argued that “there has been no transaction translative of ownership prior to consumption of the gas.” Hanover further stated: “Therefore, prior to the consumption of the gas in the compressors, the gas has never been the subject of a “sale” and therefore, cannot be subject to a “use” tax.” Hanover alternatively argued that, in the event that a tax was found due, the amount accessed by the Department was excessive in that the “cost price” of the mixture was overvalued. The Department argued that if Hanover’s customers had not provided the gas mixture for energy purposes, Hanover would have been required to supply its compressors from an outside source, ultimately resulting in higher costs passed along to its customers. It asserted that the Louisiana Supreme Court’s decision in Columbia Gulf Transmission Co. v. Broussard, 94-1650 (La.4/10/95); 653 So.2d 522, is supportive of its position that natural gas consumed in its service to its customers is subject to taxation.

Following a hearing, the Board of Tax Appeals found in favor of Hanover, vacating the Department’s assessment. In written reasons for ruling, the Board reviewed the factual background of Hanover’s services, noting that Hanover’s compressors burn the pre-metered gas mixture and that it was not metered before this point “because its measurement would be pointless as there is no market for this gas mixture.” It explained that the customer does not charge Hanover for the gas mixture needed for operation of the compressor. The Board also observed that the customer |3pays Hanover “a flat monthly fee for the compression service regardless of the volume of gas that is compressed and even if no compression takes place.” Referencing testimony offered at the hearing, the Board explained that “the actual market price for pure natural gas, even in periods of the highest natural gas prices, was irrelevant to the Taxpayer and its customers in doing business with each other.” The Board concluded that there was no evidence indicating that ownership transferred from the customer to Hanover and that it was unaware of any prohibition against an agreement permitting the customer to retain ownership of a gas mixture, but permit the use by another.

Ultimately, the Board found that there had been a transfer of possession for sales tax purposes, but that there was no associated sales price and, therefore, no sales tax was due. It also concluded that the use of the gas met the definition of “use” in La.R.S. 47:302(A)(2). However, the Board found that no use tax was due as the cost price of the mixture was $0. The Board continued, addressing Hanover’s alternative argument that the valuation process used by the Department was excessive. The Board agreed, concluding that the gas mixture should not be valued as marketable, natural gas. Rather, the Board found the appropriate valuation to be based on the producer’s costs associated with extracting the gas to the surface. The Board found the “lifting” price to be $.51 per mcf.

The Board also considered Hanover’s assertion that taxation on this type of gas mixture is violative of La. Const, art. 7, § 4(B). The Board agreed that the taxation pursued in this instance is similar to that discussed by the supreme court in Bel Oil Corp. v. Fontenot, 238 La. 1002, 117 So.2d 571 (1959). In that case, the supreme court found a statute imposing a gas gathering tax to be in violation of the constitutional article. | ¿Further, the Board disagreed with the Department’s assertion that the use of the gas mixture was taxable pursuant to Columbia Gulf, 94-1650; 653 So.2d 522, finding the instant matter factually distinguishable. The assessment was vacated.

Hanover filed for review of the Board’s decision with the trial court. The trial court affirmed the decision. The Department of Revenue appeals, presenting the following issues for review:

1. Was the district court correct in holding that the Board of Tax Appeals properly distinguished the Columbia Gulf Transmission case?
2. Is Hanover’s consumption of gas taxable pursuant to R.S. 47:302 A(2) and R.S. 47:301(19)?
3. Did the Board of Tax Appeals improperly apply the Bel Oil case to the factual situation in Hanover?
|fi4. Did the Board of Tax Appeals improperly and contradictorily assign both a value of zero and $.51 per mcf to the gas consumed by Hanover?

Discussion

Standard of Review

The scope of the judicial review of the Board of Tax Appeals is not controlled by the administrative procedure law found at La.R.S. 49:951, et seq. Instead, it is exempted from those provisions by La.R.S. 49:967. In Collector of Reve-nue v. Murphy Oil Co., 351 So.2d 1234 (La.App. 4 Cir.1977), the Board of Tax Appeals was described as acting as a trial court. A trial court’s jurisdiction to review a decision of the Board is provided by La.R.S. 47:1435, as follows:

The district courts shall have exclusive jurisdiction to review the decisions or judgments of the board, and the judgment of any such court shall be subject to further appeal, suspensive only, in accordance with law. If a suspensive appeal is taken from a judgment of the district court no further bond need be posted and the bond originally posted remains in full force and effect to guarantee the payment of any tax, interest, and penalty until final decision of the court.
Upon such review, such courts shall have the power to affirm or, if the decision of the judgment of the board is not in accordance with law, to modify, or to reverse the decision or judgment of the board, with or without remanding the case for further proceedings as justice may require.

The trial court is required to conduct its review upon the record that was before the Board. Crawford v. American Nat Petroleum Co., 00-1063 (La.App. 1 Cir. 12/28/01); 805 So.2d 371. It considers only facts on the Board’s record and questions of law. Id. The Louisiana Supreme Court observed in St. Pierre’s Fabrication and Welding, Inc. v. McNamara, 495 So.2d 1295 (La.1986), that the Board’s findings of fact are to be accepted by the reviewing trial court where there is substantial evidence in the record to support them. These findings of fact are not to “be set aside unless |fithey are manifestly erroneous in view of the evidence on the entire record.” Id. at 1298. The Board’s decision must be affirmed absent legal error or a failure to follow the correct procedural standards. Murphy Oil Co., 351 So.2d 1234. See also Crawford, 00-1063; 805 So.2d 371. In our review of the trial court’s decision, we are mindful of the standard of review required of that court.

Failure to Find Taxes Due

Review of the transcript before the Board indicates that the Department did not pursue tax recovery from Hanover under separate concepts of sales or use taxes. It pursued a “consumption” approach under both. The Board’s written reasons for ruling indicate that its factual findings were applied to the statutory provisions of both types of taxes. After stating that it found no evidence indicating transfer of ownership of the wet gas mixture and concluding that Hanover burned its customer’s product, the Board stated:

There is no sales tax due. As defined by LSA-R.S. 47:301(12), a sale can be a transfer of possession, but the amount of the tax is measured by the Sales Price. The Sales Price is defined by LSA-R.S. |7[47:]301(13)(a) "... the total amount for which tangible personal property is sold ... ”. In this case there is no sales price.
The use of the gas by Taxpayer meets the definition of use which is “use or consumption” in both LSA-R.S. [47:]302A(2) which imposes the tax and in LSA-R.S. [47:]301(3)(A). The cost price is defined to be actual cost of the article or its reasonable market value, whichever is less. In this case the cost price is $0. The cost price is less than the market value. Therefore no use tax is due.

While the Department might phrase it differently for purposes of argument, we point out that the Board found that the statutory definitions of both “sale” and “use” were met. It simply found that there is no value to these types of taxes as they might | «apply in this case and, accordingly, none is due. In particular, we note that the Board’s determination that the consumption of the wet gas mixture meets the definition of “use” in La.R.S. 47:302(A)(2) and La.R.S. 47:301(3)(a), and the trial court’s affirmation of that determination, have not been appealed. Although not framed as such, what the Department appeals, essentially, are the findings of the Board that preclude recovery of the tax in this instance.

At the hearing, the Department asserted that the Louisiana Supreme Court’s opinion in Columbia Gulf, 94-1650; 653 So.2d 522 should control recovery of taxes related to this type of consumption. In Columbia Gulf, the supreme court considered a tax assessment against the plaintiff, who was in the business of transporting natural gas from offshore Louisiana to Kentucky. The gas was transported through underground interstate pipelines. As the gas traveled through the pipeline, pressure was lost, requiring repeated compression. In Louisiana, the gas was recompressed at four compressor stations. A portion of the gas was diverted to fuel the engines. The Department attempted to levy a use tax on the fuel consumed within the State. Columbia Gulf questioned whether the product was “used” within the terms of La.R.S. 47:305(E), a statute qualifying the imposition of taxes on property related to interstate commerce. The supreme court found the consumption of the fuel in that case came within the definition of La.R.S. 47:305(E), stating:

|aWhen the natural gas compressor fuel is consumed, it comes to rest and becomes a part of the state’s property. Fuel must necessarily come to rest as it is consumed. It ceases to exist; it is terminated; it is used in Louisiana; it cannot be taxed in another state. Thus, the natural gas is subject to tax when it is consumed in the state under the language of the statute.

Id. at p. 3-4; at 524. The Department contends that the instant matter is analogous in that the wet gas mixture has come to rest, has ceased to exist, and has been used in Louisiana. Thus, the Department contends a use tax is appropriate and the Board’s attempt to distinguish Hanover’s consumption with that examined by the supreme court in Columbia Gulf is inconsistent with the terms of Title 47.

In distinguishing Columbia Gulf, the Board explained:

The Secretary attempted to argue that Columbia Gulf Transmission ... was analogous, but the Board finds clear factual distinctions between that case and the subject case. First, Columbia Gulf involved compression of metered gas, whereas in this case, the gas-mixture was not yet metered and with good business reason. Second, the fuel consumed in Columbia Gulf was itself metered; in the instant case the gas-mixture was not metered and, again, with good reason.

The Department’s objection to these findings appears misplaced. Again, the Board found the consumption to be a “use.” This is unquestioned. Although the Board answered questions raised by the Department regarding the applicability of Columbia Gulf it found factual differences. The factual difference cited by the Board related to the metering of the gas, a distinction which is important to the valuation of the gas. The distinction does not relate to whether there was a use. Our review of the |inrecord confirms the existence of evidence confirming the differences pointed to by the Board. The consumption at issue occurred very early in the process, with one witness explaining that it was not metered in this early, crude stage as there was no reason to do so, i.e., the gas mixture was not marketable in that form. The gas at issue in Columbia Gulf was metered during the process and would appear to be in a more refined stage. Again, these factors set forth by the Board are more relevant to the issue of the gas mixture’s value, than to whether a use occurred.

We also find misplaced the argument that Columbia Gulf stands for the proposition that a “sale” does not require a transfer of ownership for taxation purposes. In the present case, the Board acknowledged that a “transfer of possession” can constitute a “sale” under La.R.S. 47:301(2), but concluded that, in this case, there was no “sales price.” This determination precludes recovery of a sales tax. In our view, Columbia Gulf is inapplicable to this portion of the Board’s finding as the supreme court, in that case, did not address “sales price.” The court was squarely answering a “use tax” question on the consumption of the natural gas under La.R.S. 47:305(E). It was also concerned with a Commerce Clause issue posed by the plaintiff. We do not read any portion of the Columbia Gulf opinion to require valuation by the method proposed by the Department.

Accordingly, not finding the Board’s treatment of Title 47 and Columbia Gulf inconsistent, this assignment lacks merit. Consideration of Bel Oil Corp v. Fontenot

The Department questions the Board’s determination that La. Const, art. 7, § 4(B) precludes the imposition of tax in this instance. The constitutional provision permits a tax on the severance of natural resources, but dictates that “[n]o farther or In additional tax or license shall be levied or imposed upon oil, gas, or sulphur leases or rights.” Id. At the hearing, Hanover referenced Article 7, § 4(B), seeking acknowledgment that its consumption was similar to that present in Bel Oil Corp., 117 So.2d 571, a case in which the Louisiana Supreme Court considered a “gas gathering tax” statute under the severance provision of the state constitution as it existed at that time. The Board agreed with the similarity of Bel Oil, stating:

The Taxpayer contends that the imposition of the tax at issue is in violation of Art. 7, Sect. 4(B) of the Louisiana Constitution of 1974. The pertinent part of which Section states that, after imposing the severance tax, “... No further additional tax or license shall be levied or imposed on oil, gas or sulfur leases or rights ... ”. The preceding constitution, that of 1921, had the same prohibition. In the case of Bel Oil ..., the Louisiana Supreme Court held in 1959 that the aforementioned Constitutional provision prohibited the imposition of a Gas Gathering Tax that was imposed on the transportation of gas after its severance from the well to the first meter at or near the well. In that case it stated on page 573:
“The District Judge, in a well considered opinion, reasoning that the plaintiff has the right under its leases not only to explore for and produce gas but also to market the gas so produced, since otherwise the right to explore for and produce would be valueless, and that in marketing the gas producer must necessarily measure it, and that the gas here involved covers that precise operation, i.e., the transporting of the gas after severance to the first meter, concluded ‘... it is a license tax on the exercise of a right under the lease’ and therefore void under the language of Section 21 of Article 10, La.Constitution of 1921 as amended.”
The factual situation presented in this case is generally the same as that in the Bel Oil case. The Secretary is prohibited by our Constitution from taxing the gas in question.

We have reviewed the supreme court’s decision in Bel Oil, 117 So.2d 571, and find no error in the trial court’s acceptance of the Board’s appreciation of the facts, given the supreme court’s reasoning. In this case, testimony existed that consumption occurred at the wellhead, that the gas was in an unpurified form, and that it had not |12yet been metered. We do not conclude that the trial court was required to reverse this finding. Accordingly, this assignment is without merit. Valuation

In its final assignment of error, the Department assigns error to the determination that the gas mixture consumed was valueless. Instead, it argues to this court that:

Because its customers supplied it with gas, Hanover did not have to purchase gas elsewhere. If Hanover did have to purchase gas elsewhere, Hanover would have had to charge more for its services. The customer supplied the fuel in exchange for lower monthly rates. The tax is computed on the monetary value of the exchange. The monetary value of the exchange would be the difference in what Hanover charged its customers when it received “free” gas, and the amount it would have charged if it had to purchase the gas elsewhere. That value would be the spot market value of the gas.

We disagree that the determination of the value was in error.

In finding the gas mixture valueless, the Board referenced La.R.S. 47:301(3)(A) for the definition of “cost price” associated with the amount of use tax owed. In sum, the statute defines the term as “the actual cost of the articles of tangible personal property ... or the reasonable market value of the tangible personal property at the time it becomes susceptible to the use tax, whichever is less.” (Emphasis added.) In this instance, as the gas mixture was supplied by the customer, the actual cost was found to be zero and, thus, no taxes were due.

The Department would require the finding that the market price be that used by the Board. However, the statute requires otherwise, focusing on the lesser of the factual cost or the market value. We also acknowledge that the “market value” of such a gas mixture advanced by the Department would not necessarily be supportable by the record. In fact, the Board described the Department’s attempt to equate the value of the gas mixture to that of natural gas, to be “an attempt to compare apples and oranges.” Our review of the testimony regarding the quality of the unmeasured, wet gas mixture reveals no manifest error in that view.

We also find no merit in the Department’s argument that the Board’s view that the gas mixture was valueless for taxation purposes contradicts a finding that the market value at the point of consumption was $.51 per mcf, the lifting costs associated with the gas mixture. We find no contradiction between the two findings as this latter determination was in response to an alternative argument of Hanover. It argued that in the event taxes were found due, the assessment should be based on the lifting costs, not the market value of natural gas. Again, given the different nature of the wet gas mixture and the product natural gas, we find no manifest error in the Board’s valuation in this alternative argument.

DECREE

For the foregoing reasons, the decision of the trial court is affirmed. All costs of this proceeding are assessed to the appellant, the Department of Revenue, State of Louisiana, in the amount of $ 1,440.47.

AFFIRMED.

      . See La.R.S. 47:1401, which created the Board of Tax Appeals and provides:
      In order to provide a board that will act as an appeal board to hear and decide, at a minimum of expense to the taxpayer, questions of law and fact arising from disputes or controversies between a taxpayer and the collector of revenue for the State of Louisiana in the enforcement of any tax, excise, license, permit or any other tax law administered by the collector, the Board of Tax Appeals, hereinafter referred to as the board, is created as an independent agency in the executive department of the state government, and for the purpose of this Chapter.

      . See La.R.S. 47:1434, which provides:
      After a decision or judgment of the board,
        jas collector or the taxpayer may, within thirty calendar days after such decision or judgment has been rendered and signed, file a petition with the district court in accordance with the provisions hereinafter set out, for review of the said decision or judgment of the board. The party filing such petition shall before the filing of same, either at open hearing or by motion, notify the board of his intention to file such petition for review. Provided that when the board has found any tax to be due, a taxpayer must, when giving the notice of intention to file a petition for review, post bond, with surety approved by the board conditioned upon the payment of the tax as finally determined, together with any interest, additional amounts or additions to the tax provided for by law, payable to the collector, in an amount not to exceed one and one-half times the said tax, interest, and penalty found to be due in said decision or judgment of the board, and the posting of such bond shall be a condition precedent to the filing of any petition for review in any district court.
      Thereafter, and within the thirty calendar days from the date of the rendering and signing of such decision or judgment of the board, the taxpayer may file his petition for review with the proper district court, setting forth specifically any errors which may have been committed by the board in reaching its decision or judgment.
      When the district judge has ordered the review, a copy of the order and petition shall be mailed to the secretary-clerk of the board, and the opposing party or counsel representing him, and the order shall command the secretary-clerk of the board to send up within twenty days from the date thereof the original transcript of the record, together with all exhibits and evidence thereto attached; which record shall be the basis for any action on review and the decision of the district court shall be rendered upon the said record as made up before the board.

      . La.R.S. 47:301(12) provides:
      "Sale” means any transfer of title or possession, or both, exchange, barter, conditional or otherwise, in any manner or by any means whatsoever, of tangible personal property, for a consideration, and includes the fabrication of tangible personal property for consumers who furnish, either directly or indirectly, the materials used in fabrication work, and the furnishing, preparing or serving, for a consideration, of any tangible personal property, consumed on the premises of the person furnishing, preparing or serving such tangible personal property. A transaction whereby the possession of property is transferred by the seller retains title as security for the payment of the price shall be deemed a sale.

      . La.R.S. 47:301(13)(a) provides:
      "Sales price” means the total amount for which tangible personal property is sold, less the market value of any article traded in including any services, except services for financing, that are a part of the sale valued in money, whether paid in money or otherwise, and includes the cost of materials used, labor or service costs, except costs for financing which shall not exceed the legal interest rate and a service charge not to exceed six percent of the amount financed, and losses; provided that cash discounts allowed and taken on sales shall not be included, nor shall the sales price include the amount charged for labor or services rendered in installing, applying, remodeling, or repairing property sold.

      .La.R.S. 47:301(3)(a) defines "cost price” as follows:
      "Cost price” means the actual cost of the articles of tangible personal property without any deductions therefrom on account of the cost of materials used, labor, or service cost, except those service costs for installing the articles of tangible personal property if such cost is separately billed to the customer at the time of installation, transportation charges, or any other expenses whatsoever, or the reasonable market value of the tangible personal property at the time it becomes susceptible to the use tax, whichever is less. La.R.S. 47:302 requires the imposition of tax as follows:
      A. There is hereby levied a tax upon the sale at retail, the use, the consumption, the distribution, and the storage for use or consumption in this state, of each item or article of tangible, personal property, as defined herein, the levy of said tax to be as follows:
      (2) At the rate of two per centum (2%) of the cost price of each item or article of tangible personal property when the same is not sold but is used, consumed, distributed, or stored for use or consumption in this state; provided there shall be no duplication of the tax.

      . La.R.S. 47:305 provides specific exclusions and exemptions from taxation. Section E states:
      It is not the intention of this Chapter to levy a tax upon articles of property imported into this state, or produced or manufactured in this state, for export; nor is it the intention of this Chapter to levy a tax on bona fide interstate commerce; however, nothing herein shall prevent the collection of the taxes due on sales of tangible personal property into this state which are promoted through the use of catalogs and other means of sales promotion and for which federal legislation or federal jurisprudence enables the enforcement of this Chapter upon the conduct of such business. It is, however, the intention of this Chapter to levy a tax on the sale at retail, the use, the consumption, the distribution, and the storage to be used or consumed in this state, of tangible personal property after it has come to rest in this state and has become a part of the mass of property in this state. At such time as federal legislation or federal jurisprudence as to sales in interstate commerce promoted through the use of catalogs and other means of sales promotions enables the enforcement of this Chapter against vendors that have no other nexus with this state, the following provisions shall apply to such sales on which sales and use tax would not otherwise be collected.
      (Emphasis added.)

      . The Department asserts that the Board was without jurisdiction to consider the constitution in the determination of this case. We note that although the Board of Tax Appeals does not have the authority to determine the constitutionality of a statute, see Midboe v. Com’n on Ethics for Pub. Empl., 94-2270 (La. 11/30/94); 646 So.2d 351, the Board was not addressing the constitutionality of a statute in this instance. Instead, it referenced the constitution and supreme court jurisprudence in determining whether the tax imposed was permissible in this instance.