text:
    The BOARD OF DIRECTORS OF the INDUSTRIAL DEVELOPMENT BOARD OF the CITY OF NEW ORLEANS, Louisiana, Inc. v. ALL TAXPAYERS, PROPERTY OWNERS, CITIZENS OF the CITY OF NEW ORLEANS and Non-Residents Owning Property or Subject to Taxation Therein, and All Other Persons, et al.
    No. 2003-CA-0826.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 29, 2003.

      Albert A. Thibodeaux, Chief Deputy City Attorney, Evelyn F. Pugh, Chief Deputy City Attorney, and Wayne J. Neveu, Harold B. Judell, Meredith L. Hathorn, Foley & Judell, L.L.P., New Orleans, LA, and David E. Henderson, Foley & Judell, L.L.P., Baton Rouge, LA, for Plaintiff/Ap-pellee.
    Cameron C. Gamble, Cameron C. Gamble, A PLC, and Camille J. Strachan, and Michael A. Duplantier, New Orleans, LA, for Defendants/Appellants.
    (Court Composed of Judge CHARLES R. JONES, Judge MAX N. TOBIAS, JR., and Judge DAVID S. GORBATY).
   hMAX N. TOBIAS, JR., Judge.

This case arises from the contested issuance of bonds worth some $28 million to finance the construction of a retail and commercial development facility, specifically a Wal Mart Super Center for Wal Mart Stores, Inc. (“Wal Mart”), to be located within the city limits of New Orleans. On 6 March 2003, the Board of Directors of the Industrial Development Board of the City of New Orleans, Louisiana, Inc. (“IDB”) filed a motion for judgment, seeking judicial declaration of the validity and legality of a development project and the bonds issued to finance the project pursuant to the Bond Validity Act, La. R.S. 51:1151, et seq. The appellants, as representatives of all taxpayers, property owners, citizens of the city of New Orleans and non-residents owning property or subject to taxation in New Orleans, and all other persons in or affected in any way by the issuance of not more than $28 million in industrial revenue bonds of the Industrial Development Board of the City of New Orleans, Louisiana, Inc. (hereinafter “appellants”), filed an answer and reconven-tional demand in response to the IDB’s motion for judgment, and further asserted a third party demand against the State Bond Commission.

1 ¡.Following a hearing on the motion for judgment, the trial court granted the motion and declared that the bonds, the proceedings held, and the actions of the IDB were valid and binding on the appellants. The appellants have appealed the judgment of the trial court granting the plaintiffs motion for validation of bonds. This appeal comes before the court on an expedited basis pursuant to La. R.S. 18:5128.

The bonds will be secured by the revenues generated under a lease agreement between the IDB and the Riverview Retail Development Company, L.L.C. (“River-view”). Under the terms of the lease agreement, in lieu of ad valorem taxes, the lessee, Riverview, will pay annually a total $25,000.00 directly to the persons or entities that would have collected taxes. The lessee may assign the lease and it is apparent that Riverview will assign the lease to Wal Mart. The resolution authorizing these bonds was approved by the IDB on 18 December 2002.

The following facts were established in the trial court. The IDB, a political subdivision and a nonprofit corporation as well as “governmental unit” pursuant to La. R.S. 13:5121(2), was created by the City Council for the city of New Orleans on 4 January 1973. On 17 October 2000, the IDB adopted the Preliminary Authorization Resolution, which approved a retail and commercial development facility to be located in the city of New Orleans (hereinafter “the Project”) and granted preliminary authorization for the issuance of the bonds to provide a portion of the moneys necessary to finance the acquisition, construction, and installation of the Project.

On 16 August 2001, the State Bond Commission granted preliminary approval for the issuance of the bonds, and on 22 July 2002, adopted a resolution [.-¡increasing preliminary authorization for the IDB to issue the bonds in an aggregate .principal amount not exceeding $28 million.

The IDB filed suit to validate the bonds pursuant to La. R.S. 13:5121, et seq. On 3 March 2003, the appellants filed various discovery requests; thereafter they filed an answer, reconventional demand, and a third-party demand against the State Bond Commission. After the IDB filed what the appellants deemed to be incomplete discovery responses, the appellants filed a motion to compel and subpoena duces tecum; the motion was denied and the subpoena was quashed by the trial court. The trial court also denied the appellants’ request to continue the hearing on the motion to validate the bonds until the State Bond Commission could answer. The trial court then severed the third-party demand and proceeded to trial on the main and recon-ventional demands.

The appellants filed an application for a supervisory writ with this court from the decisions relating to discovery; this court stayed the hearing below and issued an opinion on 4 April 2003, which denied relief. The trial court rendered judgment and reasons in favor of the IDB on 15 April 2003 stating:

This Court finds that the Industrial Development Board acted properly and within the course and scope in issuing the bonds for the Riverview Retail Development Co., L.L.C. Project. This Court therefore finds no evidence of substantial defects, material errors and omissions in the incidents of the bond issue. [Footnote omitted.]

The appellants have taken an expedited appeal from that decision.

On 20 May 2003, the appellants filed a motion to remand this case on the grounds of newly discovered evidence, for the purpose of reopening the trial, and allowing the discovery and introduction of additional evidence in the trial court. This “newly discovered evidence” consists of documents which purportedly Ldemonstrate that one of the directors of the IDB entered into a contract of value with the developer/bond beneficiary, thereby receiving “something of value,” which is prohibited by La. R.S. 42:1111, et seq. This director voted at the 18 December 2002 meeting of the IDB on a matter affecting the subject bonds. Eight of the fourteen members of the IDB were present at the meeting (a minimum quorum) and the resolution passed on an 8-0 vote.

While we admit that the evidence submitted by the appellants is potentially disturbing, this court is a court of record, which must limit its review to the evidence in the record before it. Ventura v. Rubio, 2000-0682, pp. 3-4 (La.App. 4 Cir. 3/16/01), 785 So.2d 880, 885. Pursuant to La. C.C.P. art. 2164, an appellate court must render a judgment upon the record on appeal. The record on this appeal is that which is sent by the trial court to the appellate court and includes the pleadings, court minutes, transcript, judgments and other rulings, unless otherwise designated. La. C.C.P. arts. 2127 and 2128. An appellate court cannot review evidence that is not in the record on appeal and cannot receive new evidence. Augustus v. St. Mary Parish School Board, 95-2498, p. 16 (La.App. 1 Cir. 6/28/96), 676 So.2d 1144, 1156. The appellate briefs or motions of parties and attachments thereto are not a part of the record on appeal, and this court has no authority to consider on appeal facts referred to therein, or in exhibits attached thereto, if those facts are not in the record on appeal. Id. The appellants must seek their remedy, if any, before the trial court. See La. C.C.P. art.2001, et seq.

Appellants assign four errors to the trial court. First, appellants argue that the trial court erred in denying appellants’ Motion to Compel more complete answers to discovery, thereby denying the appellants the opportunity to obtain | ^documents that are vital and indispensable to their case. Second, appellants assert that the State Bond Commission’s rules and regulations governing the filing of bonds were violated by the plaintiff and that the violations constitute substantial defects, material errors, and omissions in the bond issue pursuant to La. R.S. 13:5130. Third, the appellants argue that the bond issuance in question is contrary to law as the proceedings of the IDB authorizing the issuance of the bonds both failed to establish a public purpose for the bonds and further conferred unusual and unequal privileges and financial advantages on purely private interests, in violation of Article VII, Section 14 of the Louisiana Constitution. Finally, appellants assert that the trial court erred in severing the third party demand of the defendants/ appellants against the State Bond Commission and in rendering judgment on the principle demand, insofar as the appellants were denied the opportunity to prove a material defect of the bonds sought to be validated in the main demand.

With regard to the first assignment of error, the record reflects that the appellants served requests for admissions as well as interrogatories and requests for production of documents on the IDB. Although the IDB answered the requests for admissions, appellants maintain that the answers given are incomplete and, as such, should operate to constitute admissions against the IDB. A motion to compel was filed with the trial court and heard in open court and the trial court denied the motion to compel, finding that the answers provided by the IDB were sufficient. As the appellants were unable to obtain documents they sought from the IDB through the previously propounded discovery, it served subpoenas duces tecum on |fithe IDB on 1 April 2003, one day prior to the hearing on the motion for judgment. The IDB filed a motion to quash the subpoena on April 2, 2003, and the motion was granted by the trial court.

Appellants argue that complete answers to discovery would have proved their defenses and reconventional demands, thereby defeating the motion for judgment. They further argue that, as a result, they were denied procedural due process. Appellants point out that, although the procedure for hearing bond validation matters under La. R.S. 13:5121, et seq., provides for an expedited consideration by the trial court, this procedure is in no way meant to divest the appellants of a meaningful opportunity to complete discovery, which they attempted to do in the very limited time they had before the hearing on the motion for judgment.

The IDB, however, maintains that it was served with the subpoena duces tecum on 1 April 2003, less than 48 hours before the hearing date of 2 April 2003, which was both unreasonable and oppressive. In addition to the time limitation, the subpoena duces tecum sought numerous documents that were a matter of public record and not beyond the reach of the appellants. Thus, although the IDB admittedly possessed some of the requested records, the appellants had ample opportunity to obtain the public records prior to issuing the subpoena duces tecum, and simply failed to do so. The IDB contends that the trial court was well within its discretion in quashing the subpoenas duces tecum and in denying the appellants further relief on the motion to compel.

|7No constitutional right to discovery exists; discovery is a statutorily created privilege. Council of the City of New Orleans v. All Taxpayers, Property Owners, 2003-0189 (La.App. 4 Cir. 2/24/03), 841 So.2d 72. While the courts should construe the discovery statutes broadly and liberally, as a general rule, the trial court’s discretion in discovery matters is vast. See, Succession of Manheim, 98-2051 (La.App. 4 Cir. 4/21/99), 734 So.2d 119, 125, writ denied, 99-1861 (La.10/8/99), 751 So.2d 218. Absent an abuse of discretion, an appeal court should not reverse a trial court’s discovery ruling. Id. See also, Laburre v. East Jefferson General Hospital, 555 So.2d 1381, 1385 (La.1990).

After reviewing the record on appeal, we do not find that the trial court abused its discretion in denying the appellants the discovery relief they have requested. The record reflects that the trial court found that the requests for admissions propounded by the appellants were adequately answered by the IDB and we have found nothing to indicate that the trial court abused its discretion in so finding. Accordingly, we reject this assignment of error.

With regard to the second assignment of error, the appellants argue that the State Bond Commission’s rules and regulations governing the filing of bonds were violated by the plaintiff and that those violations constitute substantial defects, material errors, and omissions in the bond issue pursuant to La. R.S. 13:5130. La. R.S. 13:5130 provides in pertinent part as follows:

No court in which a proceeding to invalidate or sustain bonds is brought shall invalidate the bonds unless it finds substantial defects, material errors and omissions in the incidents of the bond issue. Matters of form shall be disregarded. [Emphasis added.]

| sIn particular, appellants maintain that because the bond beneficiary is neither the owner nor the developer of the property to be transferred, there is a substantial defect and material error in the issuance of the bonds. Appellants argue that in the published bond resolution, Riverview is identified as the developer and the owner of the property to be transferred to the IDB and as the beneficiary of the bond proceeds. Riverview is not the owner of the property to be transferred, nor the developer, and is no longer entitled to be the beneficiary of the bond proceeds, and cannot grant a mortgage on the property to the IDB, as appellants maintain is required by La. R.S. 51:1158. Thus, according to the appellants, the publication of inaccurate information regarding the issuance of the bonds is a substantial defect and material error and, thus, the bonds were improperly approved by the State Bond Commission.

IDB argues that this argument is without merit, as there is no mortgage securing the bonds and that no mortgage is required by La. R.S. 51:1158. It further maintains that the identity of the owner of the property to be purchased by the IDB is of no moment to the validity or security of the bonds.

After reviewing the applicable statute and the record on appeal, we agree with the IDB. There is no requirement for a mortgage in La. R.S. 51:1158 and no mortgage will be securing the bonds. Therefore, there can be no substantial defect on the grounds that Riverview is incapable of granting a mortgage on the property in question. Nothing in the bond proposal materials suggests that Riverview is or will be the owner of the property in question. Riverview is the lessee. Further, as Riverview is not improperly characterized in the proposal as the owner of the | aproperty in question, we do not find that the bonds contain substantial defects or material errors on that basis.

Appellants further contend that the bond application filed on 18 December 2002, and approved by the State Bond Commission the next day, violated the commission’s rules and regulations that require an application be submitted no later than twenty working days prior to the State Bond Commission meeting or the application will not be considered, absent an extraordinary case of emergency.

In response, the IDB states that the State Bond Commission adopted a resolution on 22 July 2002, granting preliminary approval to the issuance of the bonds, and that the 19 December 2002 resolution gave final approval to the issuance, sale, and delivery of the bonds. The IDB contends that the 19 December 2002 approval merely confirms its prior resolutions and does not violate commission rules. In addition, the IDB argues that filing rules are procedural in nature, can be waived by the commission and do not rise to the level of substantial defects, material errors, or material omissions. Finally, the IDB points out that the commission refused to rehear this issue on 20 February 2003, based on a Letter of Advice issued by the attorney general on 9 January 2003.

La. R.S. 13:5130 provides as follows:

No court in which a proceeding to invalidate or sustain bonds is brought shall invalidate the bonds unless it finds substantial defects, material errors and omissions in the incidents of such bond issue. Matters of form shall be disregarded. [Emphasis added.]

The appellants are relying on La. Admin. Code 71:111 § 103(C), which provides in pertinent part:

C. Applications ... must be filed with the commission at least 20 working days prior to the commission |inmeeting at which the application will be considered. However, the secretary of the commission may approve a later filing for an emergency or an extraordinary situation .... Unless otherwise provided by these rules, all information relating to an application shall be submitted to the commission no later than 10 working days prior to the commission meeting at which the application will be considered; otherwise the application will not be docketed for consideration.

We have carefully reviewed the record and note that the resolution at issue was not a new application, but was a resolution to amend prior resolutions previously approved by the commission.

As noted in Attorney General Opinion Number 79-1384, as confirmed by Attorney General Opinion Number 02-456, procedural rules “are routinely suspended by public bodies under applicable rules.” All prior documentation relating to the application had been previously filed by the IDB and approved by the commission. We have reviewed the Louisiana Administrative Code rules applicable to the commission, as well as the rules of the commission set forth in Louisiana Register. Neither Procedural Rule 2, relied upon by the IDB, nor La. Admin. Code 71:111 § 103(C), cited by the appellants, addresses the filing of amendments to previously approved applications. Therefore, we do not find that the filing of the amended resolution by the IDB on 10 December 2002 constitutes a substantial defect, material error or omission, as required by the statute.

In the third assignment of error, the appellants maintain that the bonds are invalid, as La. R.S. 13:5122 provides, in pertinent part, that:

In... It is hereby declared that it is the intention of the legislature in enacting this law to provide a uniform, expeditious and equitable procedure with due regard for the public fisc and rights of persons in interest for the judicial determination of the validity of bonds and related proceedings where material and substantial questions with regard thereto are involved or a judicial determination of issues relating to the bonds is necessary to insure the marketability of the bonds in investment channels....

Appellants maintain that the bond issuance in question is contrary to law as the proceedings of the IDB authorizing the issuance of those bonds both failed to establish a public purpose for the bonds and further conferred unusual and unequal privileges and financial advantages on purely private interests, in violation of Article VII, Section 14 of the Constitution of the State of Louisiana. Specifically, appellants maintain that the records subpoenaed from the tax assessor’s office demonstrate an enormous disparity between the real estate taxes now to be paid by the private property owners made defendants in this case and the real estate taxes that would have been paid by the private property owners without the ad valorem exemptions granted by the plaintiff. Accordingly, the appellants argue that the bonds proposed for issuance by the plaintiff are inconsistent with the public purpose requirements of the constitution.

LgThe IDB counters that, pursuant to La. R.S. 51:1152, the legislature provided for industrial development boards as essential to the economic growth of the state and to the full employment, welfare, and prosperity of its citizens. La. R.S. 51:1152(A)(1). Further, R.S. 51:1152(A)(6) provides that:

“... the means and measures herein authorized by this chapter and the assistance provided in this chapter, especially with respect to financing, are in the public interest and serve a public purpose of the state in promoting the health, welfare, and safety of the citizens of the state ... economically by the securing and retaining of private industrial, commercial, and other enterprises and the resulting maintenance of a higher level of employment and economic activity and stability.”

Further, R.S. 51:1152(B) specifically authorizes the incorporation of public corporations to “acquire, own, lease, rent, repair, renovate, improve, finance, sell, and dispose of properties to the end that such corporations may be able to promote industry and develop trade by inducing manufacturing, industrial, commercial, and other enterprises to locate in this state.... ” The IDB notes that the development projects consisting of the Wal Mart Super Center and the development of mixed-income housing in the St. Thomas Economic Development District was determined by the city of New Orleans to | ^“create 1000 jobs and over 880 market-rate and 343 affordable housing units.” Further, the IDB asserts that property owned by an industrial board is public property used for a public purpose. Slay v. Louisiana Energy and Power Authority, 473 So.2d 51 (La.1986).

The argument put forth by the appellant that the project is an improper donation of public funds or property under Article VII, Section 14 of the Louisiana Constitution is similarly controverted. In order for there to be an unconstitutional grant or donation of public funds, there must first be a determination that there are public funds or other items of value being donated that actually belong to the governmental entity. Article VII, Section 21(A) of the constitution clearly provides an exemption of property owned by an industrial board from ad valorem taxes. Because the only alleged “donation” of public funds is the exemption from payment of ad valorem taxes for the lessee of the property in question, no governmental entity is actually giving up anything of value, insofar as the property owned by the IDB would not be subject to ad valorem taxes anyway. Thus, no improper donation of public funds to a private entity exists, as the benefit realized by the private entity in this matter is not one that would have been enjoyed by the public notwithstanding the proposed issuance of the bonds.

The final assignment of error concerns the third-party demand the appellants filed against the State Bond Commission. The IDB argues that the State Bond Commission is not an indispensable third party to the case and that the approval of 114the State Bond Commission of the bonds can be proved without making the commission a party to the validation suit.

Before the hearing, the trial court severed the third-party demand and thereafter rendered judgment on the motion for judgment only. The appellants contend that the third-party demand should have been tried simultaneously with the main demand because the failure to do so deprived them of the opportunity of proving a material defect of the bonds in question.

In response to this assignment, the IDB states that the State Bond Commission is not an indispensable party to these proceedings and commission approval of the bonds can be proven without the commission’s involvement as a party. The IDB further asserts that because the records of the commission are public, the appellants’ ability to prove their case was not thwarted by the commission’s absence.

Louisiana jurisprudence describes an “indispensable party” as one whose interest in the subject matter of the litigation is so interrelated that a complete adjudication of the controversy cannot be made unless the party is joined in the action. Smith v. State, 620 So.2d 1172, 1178 (La.App. 1 Cir.1992); Hatfield v. Bush, 540 So.2d 1178, 1180 (La.App. 1 Cir.1989), writ denied, 576 So.2d 49 (La.1991).

Since mid-1995, the Louisiana Code of Civil Procedure no longer refers to parties as “necessary” or “indispensable.” Rather, the code mandates an analysis of the interests of the joined and non-joined parties with respect to the action to determine whether the action may proceed. La. C.C.P. art. 641 mandates, in pertinent part: “a person shall be joined as a party in the action when either: (1) In his absence complete relief cannot be accorded among those already parties.... ” | ^Pursuant to La. C.C.P. art. 642, “[i]f a person described in Article 641 cannot be made a party, the court shall determine whether the action should proceed among the parties before it, or should be dismissed.” Failure to join a party may be noticed by the trial or appellate court on its own motion. La. C.C.P. art. 645.

In the instant matter, the commission’s presence is not necessary for complete relief because the issue of whether the commission followed its procedures is a matter of ordinary proof that the appellants could have attacked collaterally in this case in the trial court. The commission’s presence as a party was not needed to call commission witnesses or introduce commission documents to demonstrate that there was a material defect in the bonds.

We also note that the appellants have filed a separate suit against the State Bond Commission, which is currently pending in the Nineteenth Judicial District Court for the Parish of East Baton Rouge, number C 504986, wherein they challenge the validity of the commission’s actions and seek to set aside the actions taken by the commission approving the bonds. The appellants could have obtained relevant discovery from that litigation and introduced it in the hearing below to prove its case. In any event, no showing of a substantial defect, material error or omission has been made here and, therefore, this assignment of error is without merit.

Based on the foregoing, we affirm the judgment of the trial court and deny the appellants’ motion to remand. All costs of this appeal are assessed against the appellants.

AFFIRMED; MOTION TO REMAND DENIED.

      . Procedural Rule 2 found in the Louisiana Register requires that applications be filed with the commission at least eight working days in advance of a commission meeting, except in cases of absolute emergencies or in cases where staff permission for later filing of routine matters is granted. See LR 2:343, § 11(2) (November 1976), amended LR 4:392 (October 1979).

      . Appellants cite an opinion issued by the Attorney General of Louisiana (1991 WL 575008) as authority for the interpretation of Article VII, Section 14(A) of the Constitution of the State of Louisiana. The opinion provides that:
      [t]he following principles of interpretation of this constitutional provision may be summarized as follows:
      1) Any expenditure of public funds or alienation or use of any public things of value must be mandated by a legal obligation which obliges such use for a definite and lawful public purpose.
      2) The predicate legal obligation may be created by any normative source of law, which has coercive and binding effect. These include the constitution, statutes, ordinances which are law rather than enabling acts, home rule charters, corporate articles of incorporation, and contracts which are validly authorized by an independent source of law.
      3) If the public purpose for the use, alienation or expenditure is legally obligatory upon the public body or officer, or in some cases the recipient, the actions taken — the means for the public purpose sought — must also be lawful.
      4) A statute, ordinance, home rule charter, articles of incorporation or other source of a legal obligation which dedicates the use of public property to a specific public purpose creates a presumption that such use or transfer serves a public benefit proportionate to the cost.
      5) Where the legal obligation arises from a discretionary power or duty expressed in a contract, such as in the police power, the public benefit and its proportionality are not presumed but must be shown.
      6) An ultra vires statute, ordinance, contract, etc. creates no legal obligation under Art. VII, § 14.
      7) The public purpose for the alienation, use or transfer of public things of value must be mandated by a legal obligation or duty and must be accomplished or facilitated by actions which are a lawful or authorized means to the realization or achievement of that public purpose. This is the constitutional norm of La. Const. Art. VII, § 14.
      We do not find that the bond proposals at issue in this matter violate any "principle of interpretation” as set forth in the cited attorney general opinion.

      . In an opinion issued by the Attorney General of Louisiana, Op.Atty.Gen. No. 99-267-A, the attorney general concluded that "[i]f the property is exempt from ad valorem tax, there can be no violation of Article VII, Section 14...


source: Caselaw Access Project

author: | .CLARENCE E. McMANUS, Judge.

license: Public Domain

text:
    PADDISON BUILDERS, INC. v. NEWPARK SQUARE ONE CONDOMINIUM ASSOCIATION.
    No. 03-CA-144.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 3, 2003.

      Louis R. Koerner, Jr., Koerner Law Firm, New Orleans, LA, for plaintiff-ap-pellee.
    Roger R. Roy, Stephanie H. Myers, Roy & Myers, Attorneys at Law, New Orleans, LA, for defendant-appellant.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY and CLARENCE E. McMANUS.
   | .CLARENCE E. McMANUS, Judge.

Defendant appeals the trial court judgment granting summary judgment in favor of plaintiff and awarding $5,000.00 in attorney fees. For the following reasons, we affirm in part and vacate the portion of the judgment awarding attorney fees.

FACTS AND PROCEDURAL HISTORY

The undisputed facts of this case are as follows. Defendant, NewPark Square One Condominium Association, (“NewPark”), manages 2901 North Causeway Boulevard, a three story brick office building in Me-tairie, Louisiana. In 1992, the rear wall of this property began to crack. Sometime later, NewPark through its president, Robert Roth, retained an architect, Robert Cangelosi, to supervise the repair/reconstruction of the wall. Apparently, Mr. Cangelosi opined that the necessary work could be accomplished in two phases. First, the existing brick facade would be demolished with the exposed wall to be repaired and waterproofed prior to completion of the second phase, reconstruction of the brickjjwall. Cangelosi suggested to NewPark that phase one costs be determined using a “cost plus” contract with a maximum total cost because the true extent of damage was unknown. In February 1996, plaintiff, Paddison Builders, Inc., (“Paddison”), submitted to Cangelosi a “worst case” estimate of $39,600.00 to be performed on a cost plus basis. The estimate noted that overhead and profit would be determined at 20% of the subtotal of materials, subcontractors and labor. Pad-dison then submitted its bid of cost plus 20% with a maximum cost of $39.600.00. The bid was signed and accepted by Roth and other NewPark directors that same month. Before the bid was signed, part of the wall collapsed. Both sides agreed the work could still be performed pursuant to the original agreed upon bid price. Paddi-son submitted three invoices to NewPark and eventually completed the work (employing the use of subcontractors) for a total cost of $37,915.28. The first two invoices submitted in March 1996, for $19,849.15 and $13,039.51 respectively were paid in full. NewPark refused to pay the third invoice for $5,026.61, submitted to it in April 1996. In May 1996, Paddison recorded a contractor’s hen for labor and materials.

In June 1996, Paddison filed this petition for damages, breach of contract and recognition of hen for labor and materials against Robert Roth individually and on behalf of NewPark for non-payment of the final invoice totaling $5,026.61 plus interest, attorney fees and costs. In November 1997, NewPark filed a reconventional demand against Paddison alleging it used a subcontractor, Bob Whittington and Associates, Inc., to perform the work charging NewPark $17,000.00 when the work done by the subcontractor was approximately $1,440.00. NewPark contends the subcontractor used two men working five days to perform the demolition work which violated the contract. NewPark further contends that Paddison submitted “unsubstantiated charges” to it also in derogation |4of the contract. NewPark prayed for a refund of excess charges in addition to interest and legal fees.

In March 2002, Paddison filed a motion for summary judgment arguing that the parties did not dispute whether the work was properly done. Rather, Mr. Roth questioned the cost of the project. In support, it relied on the depositions of Robert Cangelosi, Robert Roth and Richard Paddison. Apparently, NewPark was not served with a copy of this motion, did not file an opposition of show up for the hearing. The trial court granted the motion for summary judgment. In May 2002, NewPark filed a motion to vacate and/or annul the judgment or for a new trial asserting it was not served and did not otherwise receive notice of the summary judgment and hearing thereon. In support, it relied on Orleans Parish Civil Sheriff returns showing service was not made. NewPark requested attorney fees and sanctions. The trial judge entered an order vacating the summary judgment and reset the motion. NewPark filed a memorandum in opposition to the motion for summary judgment essentially questioning whether the wall removal cost and manner of removal was reasonable and whether it had given Cangelosi power to contract for it. In support, it relied on the deposition of Robert Roth.

After a hearing, the trial judge granted Paddison’s motion for summary judgment without assigning written reasons. Oral reasons for judgment were dictated in open court. However, for some reason the parties did not provide this court with a transcript of this hearing. Thus, a review of this matter is limited to the record before us. The judgment at issue in favor of Paddison and against NewPark was for $5,026.61, plus legal interest, cost of filing the lien and $5,000.00 in attorney fees. The judgment dismissed NewPark’s reeon-ventional demand with prejudice and denied the summary judgment insofar as it sought judgment against Robert Roth individually. The judgment was designated as final for purposes of this appeal. New-Park now appeals this judgment.

\ DISCUSSION

NewPark asserts that Paddison did not carry its burden of proving that its charges were reasonable and proper under the law governing cost-plus contracts. It argues that Paddison did not properly itemize and explain charges especially those of the subcontractor Bob L. "Whit-tington. Thus, summary judgment should not have been granted.

A motion for summary judgment should be granted when the mover can show' “that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law.” La. Code Civ. Pro. art. 966(C)(1). When a contract is not ambiguous or does not lead to absurd consequences, it will be enforced as written and its interpretation is a question of law for a court to decide. American Deposit Ins. Co. v. Myles, 00-2457 (La.4/25/01), 783 So.2d 1282. Thus, when the parties agree that a valid contract binds them and that the material facts involved in the dispute are not contested, the contract’s application to a case is a matter of law and summary judgment is appropriate. Id. The fact that one party may create a dispute about the meaning of a contractual provision does not render the provision ambiguous. Campbell v. Melton, 01-2578 (La.5/14/02), 817 So.2d 69. A court must grant a motion for summary judgment “if the depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law.” La.Code Civ. Proc. art. 966(B). The summary judgment procedure is favored under our law. Ross v. Conoco, Inc., 02-0299 (La.10/15/02), 828 So.2d 546.

In this case, the depositions reflect that Paddison performed the work in a timely and professional manner even coming in under the anticipated $39,600.00 projected total cost. Additionally, our review of the record including exhibits and | fisupporting documentation reveals that Paddison submitted several invoices to NewPark and those invoices appeared to itemize the type of work performed, the laborers performing the work and the supplies used to accomplish the work.

NewPark further argues that the trial court erroneously awarded attorney fees in this case because this suit was not styled as a suit on open account nor were attorney fees provided for by contract. We agree. As we previously stated in Dixie Mach. Welding & Metal Works, Inc. v. Gulf States Marine Technical Bureau, Inc., 96-869 (La.App. 5 Cir. 3/12/97), 692 So.2d 1167, in order to treat this matter as an open account certain factors must be considered:

1. Whether there were other business transactions between the parties;
2. Whether a line of credit was extended by one party to the other;
3. Whether there are running or current dealings;
4. Whether there are expectations of other dealings.

We find none of the above factors present in this case. Additionally, construction contracts (such as this one) have historically not been treated as open accounts under La. R.S. 9:2781. See, Hill v. Leach, 98-1817 (La.App. 3 Cir. 4/21/99), 734 So.2d 116, writ denied, 99-1527 (La.9/17/99), 747 So.2d 1109.

Turning to the issue of attorney fees, we note that the record is devoid of apy evidence that Paddison would be entitled to $5,000.00 in attorney fees. Generally, attorney fees are not allowed in Louisiana unless they are authorized by statute or provided for by contract. Langley v. Petro Star Corp. of La., 01-0198 (La.6/29/01), 792 So.2d 721. Neither of which is present in this case. Thus, the trial court lacked the authority to make such an award.

CONCLUSION

Based on the foregoing, we affirm the trial court’s judgment granting summary judgment in favor of Paddison Builders, Inc. in the amount of $5,026.61 but vacate the portion of the judgment awarding it $5,000.00 in attorney fees.

JUDGEMENT AFFIRMED IN PART; VACATED IN PART.


author: JjCLARENCE E. McMANUS, Judge.

text:
    James COUTEE and Cynthia Coutee, individually and administrators of the Estate of their Minor Child, Brandon Coutee v. GLADE MIDDLE SCHOOL and St. John the Baptist Parish School Board.
    No. 03-CA-128.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 3, 2003.

      Janet Moulton, Janet Moulton and Associates, Metairie, LA, for plaintiff-appellee.

      William D. O’Regan III, Laplace, LA, for defendant-appellant.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY and CLARENCE E. McMANUS.
   JjCLARENCE E. McMANUS, Judge.

Brandon Coutee (“Brandon”), a seventh grader at Glade Middle School, was injured when another student, Dow Anderson (“Dow”), punched him in the jaw causing a fractured mandible. At the time of the incident, Brandon and Dow were in the gymnasium at Glade Middle School (“the School”). Brandon’s parents, on behalf of Brandon, sued Glade Middle School and St. John the Baptist Parish School Board (“the School Board”). After trial, the trial court awarded general damages of $55,000 and medicals of $2,522.79. The trial court also assessed fault at 50% to Dow, 15% to Brandon and 35% to the School and the School Board. Based on La. C.C. art. 2323(C) and the reasoning of the Fourth Circuit in Wijngaarde v. Parents of Guy, 97-2064 (La.App. 4 Cir. 9/2/98), 720 So.2d 6, the trial court assessed Brandon’s 15% fault to Dow, making his total fault 65%, since the plaintiffs recovery cannot be reduced because of victim fault when the injury resulted from an intentional tort.

The School Board and the School now appeal this judgment arguing that the trial court erred in awarding general and medical damages, the trial court erred in 1 ¡¡assessing the School Board and the School with 35% fault, and the trial court awarded excessive damages. For the reasons which follow, we amend the trial court’s judgment and reallocate the School and the School Board with 15% fault and reallocate 35% fault to Brandon. We also amend the trial court’s judgment to decrease the general damage award to $35,000.

Following trial, the trial court found that the School had developed a routine which provided that students on their way to gym class were to stand in line in the hallway until time to go into the. locker room to change clothes. There were two teachers assigned to monitor these students. One teacher was to be in the front of the line and one teacher in the back of the line. According to the acting principal, Robert Schaff, no student was to be in the gym unsupervised.

At the time of the incident, approximately seven students were in the gym unsupervised. The trial court found that it was immaterial whether or not one of the teachers monitoring the students in line had allowed Brandon and other students to go into the gym on that day. The trial court felt that the bottom line was that the students were unsupervised. The trial court reasoned that if the teachers knew the students were in the gym unsupervised, then they were knowingly allowing a violation to occur. The trial court further reasoned that if the teachers did not know the students were in the gym, they should have known when approximately seven students were in a place they were not supposed to be. As a result, the trial court found the School and the School Board to be 35% at fault in the cause of the incident.

A School Board, through its agents and teachers, owes a duty of reasonable supervision over students. La. C.C. art. 2320; Wallmuth v. Rapides Parish School Board, 01-C-1779 (La.4/3/02), 813 So.2d 341, 346, citing Adams v. Caddo Parish School Board, 25,370 (La.App. 2 Cir. 1/19/94), 631 So.2d 70, writ denied, 94-684 (La.4/29/94), 637 So.2d 466. The supervision required is reasonable competent ^supervision appropriate to the age of the children and the circumstances. Wall- muth at 346, citing Jackson v. Colvin, 98-182 (La.App. 3 Cir. 12/23/98), 732 So.2d 530, writ denied, 99-228 (La.3/19/99), 740 So.2d 117. This duty does not make the school board the insurer of the safety of the children. Id. Constant supervision of all students is not possible nor required for educators to discharge their duty to provide adequate supervision. Wallmuth at 346, citing Adams, 631 So.2d 70.

Before liability can be imposed upon a school board for failure to adequately supervise the safety of students, there must be proof of negligence in providing supervision and also proof of a causal connection between the lack of supervision and the accident. Id. Furthermore, before a school board can be found to have breached the duty to adequately supervise the safety of the students, the risk of unreasonable injury must be foreseeable, constructively or actually known, and preventable if a requisite degree of supervision had been exercised. Id.

In this case, two teachers had been assigned to monitor the students in line for gym class in the hallway. According to the testimony of one student, there were approximately 50-60 students in line in the hallway. Neither teacher who was assigned to the supervision of these students testified at trial. However, it appears that the teachers were watching the students in the hallway. No teacher was independently assigned to monitor the gym while the students were in fine in the hallway, because no students were supposed to be in the gym at that time.

Brandon testified that one of the teachers monitoring the students in the hallway told him to go into the gym and wait for them. Principal Schaff testified that no one had told him that one of the teachers told Brandon to go into the gym by himself. He also testified that he had not seen any statements taken from any witnesses that indicated Brandon had been told to go into the gym.

Brandon testified that he was hit by Dow right after he got into the gym and walked to the bleachers. Dow was supposed to be in another class that period and |Bleft the gym immediately after hitting Brandon. Dow’s teacher for that class period reported that Dow was about five minutes late for class.

Dow violated the school’s policies and actually forged a hall pass in order to skip the beginning of his class to go to the gym and hit Brandon. Brandon knew that according to the school’s policies, he was not supposed to be in the gym without a teacher. Both students obviously violated school policy when they chose to be in the gym at that time.

We find that the School and the School Board did not provide reasonable supervision over its students. Two teachers were assigned to monitor the students who were going to gym class, yet there were approximately seven students in the gym unsupervised at the time of the incident.

We further find that the School and the School Board were negligent in providing supervision of the students. Principal Schaff implemented policies regarding movement of students within the school from one class to another in order for there to be supervision of the students at all times and to stop students from skipping classes. The two teachers assigned to monitor the gym students were allegedly watching the students in line in the hallway when the incident occurred. However, approximately seven students managed to get past these two teachers and enter the gym. Dow forged a hall pass and skipped the first five minutes of his class in order to go to the gym. These teachers were obviously negligent in supervising the students and allowing these violations to occur.

In addition, we find a causal connection between the lack of supervision and the accident and find that the risk of this injury was foreseeable. Brandon testified that Dow hit him right after he entered the gym and approached the bleachers. Dow left immediately after and a teacher approached Brandon as Dow left. If a teacher had been present in the gym supervising the students, Dow might not have hit Brandon. In addition, had the teacher supervised the students appropriately and | finot allowed Brandon to go into the gym, this incident would not have occurred. As a result, we find there is a connection between the lack of supervision and the accident and find that this incident was foreseeable. It is also likely that a teacher, present in the gym, could have prevented this incident from occurring.

Under the standards set forth in Wallmuth, we find that the plaintiffs proved that the School and the School Board were negligent in providing supervision of the students and the plaintiffs proved a causal connection between the lack of supervision and the accident. However, we find the trial court’s assessment of 35% fault to the School and the School Board to be manifestly erroneous. Even though the School and the School Board were negligent in providing supervision of the students, the incident would not have occurred at all if Brandon had not violated school policy by going into the gym and Dow had not violated school policy by skipping the first five minutes of his class and going to the gym. Therefore, we amend the trial court’s judgment and find the School and the School Board to be 15% at fault and Brandon to be 85% at fault in the cause of this incident. We agree with the trial court’s assessment of 50% fault to Dow. We also agree with the trial court’s assessment of Brandon’s fault to Dow. The injury resulted from an intentional tort and according to La. C.C. art. 2323(C) and Wijngaarde v. Parents of Guy, supra, the plaintiffs recovery cannot be reduced because of victim fault.

As a result of this incident, Brandon suffered a broken jaw. The trial court found that he was taken to the emergency room that day by his mother. He had outpatient surgery the next day and his mouth was wired shut. He was placed on a restrictive diet and had to eat through a straw. His jaw remained wired shut and he required medical treatment for approximately two months. Our review of the record confirms these facts. Brandon’s mother also testified at trial that he was depressed, in pain and his grades had dropped. Before the incident, Brandon 17played the horn, but after, he was unable to blow the horn. He was also not allowed to play contact sports. Brandon’s mother also testified that he was teased by students and threatened by Dow’s friends.

On appeal, the defendants argue that the trial court erred in awarding general and medical related damages and erred in awarding excessive damages. They argue that there was no basis for the award of $55,000.00 in general damages and that the award is excessive. We find that the plaintiffs did prove damages based upon the medical reports presented at trial and the testimony of Brandon’s mother. However, based on the testimony and evidence from trial, we find the trial court’s award to be erroneous. While we find the plaintiffs are entitled to damages, we find the trial court’s award to be too high.

In Babb v. Boney, 30,443 (La.App. 2 Cir. 4/08/98), 710 So.2d 1132, the plaintiff sustained injuries to his face when the defendant hit him during a fight. The plaintiff suffered a broken nose and a broken jaw. The plaintiff was hospitalized for eight days and underwent surgery to repair his jaw, as well as, two re-constructive surgeries to repair his nose. His jaw was wired shut for six weeks and he could not eat solid foods. A jury awarded the plaintiff $10,000 in general damages and $26,000 for medical expenses. The Second Circuit found that the jury had abused its discretion by only awarding $10,000 for general damages. The court reviewed similar cases and found that the lowest a reasonable jury could award to the plaintiff was $20,000. The court also noted that based on its review of similar cases, the general damage awards for similar injuries outside of the context of a battery have been significantly greater.

In Winstead v. Watson, 19,641 (La.App. 2 Cir. 05/04/88), 528 So.2d 691, the Second Circuit found that the lowest amount the trial court could have awarded to the plaintiff for a fractured jaw, memory loss and a concussion was $10,000. In Winstead, the plaintiff was struck by the defendant and suffered two fractures of |sthe lower jaw, memory loss, dizziness, nausea, severe weakness, multiple tooth loss and minor lacerations around the mouth. The plaintiff was awarded $5,192.31 for medical expenses. The trial court awarded $5,000 in general damages, but the Second Circuit found that the trial court abused its discretion and increased the award to $10,000.

In this case, we find the trial court abused its discretion by awarding $55,000 to the plaintiffs. Brandon’s injuries are similar to those in the cases listed above. He suffered a broken jaw that required outpatient surgery and he received medical treatment for two months. Brandon was placed on a restricted diet and could not play the horn or participate in contact sports. In addition, his mother testified that he was depressed and was teased because of his condition. Therefore, we find that $35,000 is the most a reasonable trier of fact could award.

In accordance with the above, we amend the trial court’s judgment and reallocate 15% fault to the School and the School Board and 35% fault to Brandon. We also amend the trial court’s judgment and decrease the general damage award to $35,000. In all other respects, the judgment is affirmed.

AMENDED; AS AMENDED, AFFIRMED.


author: |, EZELL, Judge.

text:
    E.C. MEYERS, Jr., et ux. v. Bobby DENTON, et ux.
    No. 02-1406.
    Court of Appeal of Louisiana, Third Circuit.
    June 18, 2003.

      Walter Evans Dorroh, Jr., Attorney at Law, Jena, LA, for Defendants/Appellants Bobby Denton, Gladys Denton.
    Jack Forsythe Owens, Jr., Attorney at Law, Harrisonburg, LA, for Secondary Plaintiffs/Appellants E.C. Meyers, Jr., Rose S. Meyers.
    William A. Yarbrough, Assistant D.A., Yidalia, LA, for Defendant/Appellee Cata-houla Parish Police Jury.
    Court composed of BILLIE COLOMBARO WOODARD, ELIZABETH A. PICKETT, and BILLY HOWARD EZELL, Judges.
   |, EZELL, Judge.

The primary issue in this case is whether Upper Little River Road located in Catahoula Parish is a public road. Bobby and Gladys Denton, who own the property on which the road is located, and E.C. and Rose Meyers, who use the road to access their property, all appeal the trial court’s judgment.

FACTS

The Dentons own a 552-acre tract of land in Catahoula Parish next to Little River. They bought a 7/27 interest in the property at a federal court auction in April 1996 and bought the balance in February 1997. When the Dentons bought the property, there was an existing road, called Upper Little River Road, which runs parallel to Little River for some distance. Contending that the road was private, the Denton’s erected gates on the property in 1998.

The Meyers own a 325-acre tract of land, which also fronts Little River, to the west of the Dentons. The Meyers use Upper Little River Road on the Denton property to access their property. The Meyers filed suit against the Dentons seeking removal of the gates arguing that the Denton property was subject to a riparian servitude and that the road was a public road.

Lamar and June Poole, also owners of property to the west of the Denton land, intervened in the suit. As a result of a temporary restraining order filed by the Pooles, the Meyers and Pooles were provided with keys to the gates.

On March 24, 1998, the Meyers filed a motion for summary judgment. The trial court granted the motion, finding that the road in question was a public road and subject to a servitude in favor of the public pursuant to La. Civ. Code art. 665. The Dentons appealed the judgment to this court.

This court reversed the summary judgment finding the existence of disputed material facts. Meyers v. Denton, 99-574 (La.App. 3 Cir. 10/6/99), 747 So.2d 633, writ denied, 00-16 (La.2/18/00), 754 So.2d 974. The case was remanded to the trial court for a trial on the merits.

The trial court determined that the Ca-tahoula Parish Police Jury formally adopted the Upper Little River Road as a public road on November 5,1973, and for a period of more than three years performed maintenance work on the road. The trial court, therefore, found that pursuant to La.R.S. 48:491, Upper Little River Road is a public road. The trial court rejected the Dentons’ claim for unjust enrichment in the amount of $9,592 for improvements made by them to the road. The court found that it did not need to address whether Upper Little River Road was a public river road pursuant to the legal riparian servitude found in Article 665. Both the Dentons and the Meyers appeal these findings.

PUBLIC ROAD

The Dentons argue that the trial court erred in finding that Upper Little River Road was a public road because the evidence indicates otherwise. They claim that the evidence supports a finding that the Catahoula Parish Police Jury did very little maintenance on this road which would support the dedication of this road as a public road pursuant to La.R.S. 48:491.

Whether a road is private or public is a factual determination. Monfore v. Self, 99-459 (La.App. 3 Cir. 12/8/99), 755 So.2d 907.

Louisiana Revised Statute 48:491(B)(l)(a) provides:

All roads and streets in this state which have been or hereafter are kept up, maintained, or worked for a period of three years by the authority of a parish governing authority within its parish, or by the authority of a municipal governing authority within its municipality, shall be public roads or streets, as the case may be, if there is actual or constructive knowledge of such work by adjoining landowners exercising reasonable concern over their property.

Furthermore, discussing the burden of establishing a tacit dedication pursuant |3to La.R.S. 48:491, this court in Monfore, 755 So.2d at 910, stated:

The legal existence of tacit dedication is determined solely by the application of the statutory criteria as enumerated in La.R.S. 48:491. Tacit dedication does not require intent by the landowner to dedicate the road way if there has been, in fact sufficient maintenance without protest. However, token maintenance, or an occasional “brushing up” of a private road will not support a finding of tacit dedication.

See also St. Charles Parish School Bd. v. P & L Inv. Corp., 95-2571 (La.5/21/96), 674 So.2d 218.

The procedure of tacit dedication found in La.R.S. 48:491 was explained by Winn Parish Police Jury v. Austin, 216 So.2d 166, 168 (La.App. 2 Cir.1968), where the court stated:

Within the purview of the statute, a road ceases to be a private passageway and becomes a public road only after it has been maintained for a period of three years. Hence the statute, in our opinion, presupposes, as it necessarily must, that for the period of time specified for the road to become public it remains a private road, at least, that it does not become a public road, a status assumed only after its maintenance for the requisite period of time. Therefore, for the initial statutory period of time while the road remains private, it can only be concluded that any action taken by the police jury as the governing authority, whether by resolution or otherwise, is beyond the scope of its authority. The intention of the statute obviously extended no further and required nothing more than that the work and maintenance be done by appropriate authority, whether legally authorized or not, and accomplished with materials and labor provided from public funds.

Evidence indicated that road was constructed by Knickerbocker Construction for the Corps of Engineers in the early 1970’s. The road was built to facilitate the construction of a low water structure or dam and was constructed and intended to replace an older road closer to the river.

On November 5, 1973, the Catahoula Parish Police Jury minutes reflect the following resolution:

SUBMITTED BY: Maizie Franklin, seconded by Grover Elliott.
WHEREAS, the Upper Little River Road and the portion of Old River Road in Catahoula Parish has been closed to the public traffic,
DWHEREAS, said roads are vital to the Public’s best interest as a Farm-to-market Road,
THEREFORE, The Catahoula Parish Police Jury hereby declares that the Upper Little River Road and the Old River Road in Catahoula Parish to the LaSalle Parish Line be and is hereby open to public traffic.
Resolution unanimously adopted this 5th day of November, 1973.

According to Winn Parish Police Jury, this resolution did not dedicate the road as a public road. However, we do see it as evidence of an indication that the Catahou-la Parish Police Jury intended to begin work to maintain the road for public road purposes. Further evidence also indicates that the maintenance of this road has continued to take place on the road located on the Denton property and was even requested by the landowners at times.

Ronald Renfrow, a police juror from 1984 to 1991, testified that all of Upper Little River Road was a public road which had been a school route at one time. He testified that he personally graded the road with his own grader.

Moses Poole testified that he worked off and on for the Police Jury since the 1960’s. In addition to holding the job as motor patrol operator in the 1970’s, Moses was also a road supervisor for two years. Moses testified that he graded the road a number of times to the end when it was an old dirt road with little gravel.

J.B. Morris also maintained roads for the Police Jury. He testified that he first worked for the Police Jury around 1974 for seven or eight years. He remembered the road being constructed before the dam and testified that a foot of gravel was placed on it. The Police Jury would call him every time the road needed grading. He testified that he went on the road and pulled ditches, filled the holes, and fixed the road. Morris graded the road all the way to the dam, which took about two days.

George Walton also worked for the Police Jury as grader operator. He testified | Bthat he graded Upper Little River Road four or five times in 1995 or 1996. He would grade the road past the railroad tracks, which are located on the Dentons’ property, to a timber area. He testified that Morris had shown him where to grade.

The Dentons place a lot of emphasis on a road and bridge inventory that was prepared by Catahoula Parish in 1981 to comply with a legislative act that required a list of public roads for state expenditures. This roster shows Upper Little River Road as 4.3 miles and containing gravel. Upper Little River Road is 4.3 miles from New Deal Road to the east gates located at the beginning of the Denton land. They argue that this is the section of Upper Little River Road that is maintained by the Police Jury and a public road. Testimony revealed that the roster is not necessarily accurate. There was also testimony by Johnny McClendon, the road superintendent since May 1994, that he did not know if more than 4.3 miles was maintained. He simply relied on the information in the roster.

Tillman Gardner, the road superintendent from the early 1980’s until 1989, and from 1990 until 1993, testified that a police juror told him to stop at the 4.3 mark until other information was obtained. He agreed that work may have continued past that point. He testified that the police juror could have been mistaken in telling him to stop there. Libby Ford, the police juror for Ward 6 when Denton acquired the property, testified that Bobby Denton requested that the Police Jury grade the road, which was done. It was only after Denton talked to another police juror who told him that 4.3 miles of the road was maintained that he decided to put the gates up.

Additionally, both E.C. Meyers and Lamar Poole, who have owned the property for forty-three and thirty-six years respectively, testified that they have seen the Police Jury grading the road. It was when the gates were placed on the road, that the road was no longer accessible to the public.

| fiBased on this evidence, we cannot say the trial court was clearly wrong in its assessment of the evidence. The evidence establishes that the Police Jury in the 1970’s intended to maintain Upper Little River Road as a public road and that maintenance was actually performed on the road. We agree that the Meyers and Pooles established that Upper Little River Road located on the Dentons’ property was maintained by the Police Jury for at least three years as contemplated by La.R.S. 48:491, making it a public road. With this finding we agree with the trial court’s decision that there is no need to address the issue of whether Upper Little River Road is a public river road.

UNJUST ENRICHMENT

Since we agree with the trial court that Upper Little River Road is a public road, we will address the Dentons’ disagreement with the trial court’s rejection of their claim for reimbursement against the Police Jury for unjust enrichment. The Dentons claim they are entitled to $9,592 for improvements they personally made to Upper Little River Road.

In 1995, the principle of unjust enrichment was codified in La. Civ. Code art. 2298 and provides in pertinent part:

A person who has been enriched without cause at the expense of another person is bound to compensate that person. The term “without cause” is used in this context to exclude cases in which the enrichment results from a valid juridical act or the law. The remedy declared here is subsidiary and shall not be available if the law provides another remedy for the impoverishment or declares a contrary rule.

Corriere v. Bank of Louisiana, 95-3058, p. 17 (La.12/13/96), 702 So.2d 648, 671, listed the five requirements for showing unjust enrichment:

(1) there must be an enrichment; (2) there must be an impoverishment; (3) there must be a connection between the enrichment and the resulting impoverishment; (4) there must be an absence of “justification” or “cause” for the enrichment and impoverishment; and (5) there must be no other remedy at law available to plaintiff.

|7Bobby Denton testified that he made improvements to the road in the form of placing culverts, adding gravel, and maintaining the road since purchasing it. Den-ton relied on the information that one police juror member gave him that only 4.3 miles of Upper Little River Road was maintained by the Police Jury. He admitted that he saw other people using the road. Once Denton placed gates on the property in 1997, the Police Jury could no longer access the road to perform maintenance. Furthermore, in January 1998, when the Meyers instituted this action, Denton was aware that there was a dispute concerning the public or private nature of the road.

We find that the Police Jury was not enriched without cause. Denton knew there was controversy over the status of the road, yet he continued to perform acts of maintenance on the road. The Police Jury could not access the road to perform any necessary maintenance due to Den-ton’s actions in placing gates on the road. Additionally, much of the maintenance he performed was beyond what was necessary for public road purposes in this case. We agree with the trial court that there was no unjust enrichment under the circumstances of this case.

COSTS

Both the Dentons and the Meyers claim that the trial court erred in its assessment of costs. The court fixed the expert witnesses’ fees at $2,000 and assessed one-third each to the Meyers, Den-tons, and Pooles. The Dentons were cast with all other court costs. The Meyers claim that the trial court should have cast all costs on the Dentons, including the expert fees for James Lossin in the amount of $3,050. Lossin is an attorney who qualified as an expert in title work at trial and had checked title on the property for the Meyers. The Dentons complained about any assessment of costs against them under the assumption that this court would find that Upper Little River Road is a private road.

[sThe trial court has great discretion in assessing court costs in any manner it deems equitable. La.Code Civ.P. art.1920.

The trial court may assess costs in any equitable manner, and its assessment will not be reversed on appeal in the absence of an abuse of discretion. However, jurisprudence has also established that when a prevailing party is taxed with the costs of litigation, it is usually because the party in some way incurred additional costs pointlessly or engaged in other conduct which justified an assessment of costs against that litigant.

Ford v. State Dept. of Public Safety, 00-1546, p. 1 (La.App. 3 Cir. 6/5/02), 819 So.2d 1156,1157 (citation omitted).

A review of the record reveals that much of the expert testimony presented to the trial court, including the Meyers’ witnesses, concerned the application of legal precepts involving riparian lands and public and private roads. We cannot say that it was an abuse of discretion to divide expert costs amongst the parties. Furthermore, we find no abuse of discretion in assessing all other court costs to the Den-tons.

For the reasons discussed in this opinion, the judgment of the trial court is affirmed. All costs of this appeal are assessed to the Dentons.

AFFIRMED.


author: |,MARION F. EDWARDS, Judge.

text:
    KAPPA LOYAL, L.L.C. v. PLAISANCE DRAGLINE & DREDGING COMPANY, INC.
    No. 03-CA-124.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 19, 2003.
    Rehearing Denied July 16, 2003.

      Edward T. Diaz, Golden Meadow, LA, for Appellant.
    Samuel A. Giberga, Joseph C. Peiffer, New Orleans, LA, and Robert L. Raymond, Destrehan, LA, for Appellee.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., JAMES L. CANNELLA and MARION F. EDWARDS.
   |,MARION F. EDWARDS, Judge.

Defendant/appellant Plaisance Dragline & Dredging Company Inc., (Plaisance) appeals a judgment granting eviction after finding that it breached its lease with plaintiffiappellant Kappa Loyal L.L.C. (Kappa). We affirm.

In May of 1993, the Louisiana Land and Exploration Company (LL & E) and Plai-sance entered into a “Crawfish Farm, Grazing and Wildlife Management Area Lease.” The lease in question involves property along a levee in St. Charles Parish known as the Paradis Reclamation Project, and consisted of 1,714.66 acres surrounded by a fresh water marsh, and at its eastern extreme, a navigable waterway known as the Paradis Canal. The lease was for the initial period of ten years, with an option to renew. In October 2001, LL & E sold its property to Kappa and transferred its rights under the lease pursuant to an “Assignment and Assumption of Lease.” On November 5, 2001, Kappa sent a letter to Plaisance alleging certain “Maintenance Violations” and on November 21, 2001, a letter was sent notifying Plaisance that the lease rights were terminated. On December 7, | s2001, Kappa filed a rule to Evict Tenant and for Possession of Premises against Plaisance. Following trial on the merits, on June 5th the court rendered judgment finding that “... the main thrust of plaintiffs argument, and the area of maintenance with which this court is concerned, deals with the issue of the clearing and recapping of the perimeter levees.” The court quoted Article 9 of the lease and found that the language was unclear and ambiguous. Thus, the court looked beyond the four corners of the lease to ascertain the intent of the parties.

It was held that Plaisance had an obligation under the lease to recap 32,150 feet of the perimeter levee as indicated in the correspondence and because only 6,400 feet had been recapped, the court found Plaisance to be in breach of the lease.

The court did not find that immediate eviction was the appropriate remedy, and because LL & E had never made demand for performance of maintenance nor notified Plaisance of any default, and LL & E had no problems with the operation of the property, the court determined not to order eviction without first giving Plaisance the opportunity to complete the recapping. The rule to evict was denied, and Plaisance was ordered to recap an additional 6,900 feet of the perimeter levees on the west and north side prior to April 30, 2003, with work to commence within 30 days of the date of judgment. Expert witness fees of $500.00 were assessed against Plaisance, as were all costs of court.

Kappa filed a Motion for New Trial, urging that the exclusive remedy of the court in a rule for eviction is, in fact, eviction, and that the specific performance of maintenance was not allowed in this proceeding. The motion was granted for the limited purpose of clarifying the judgment. Both parties agreed that the court was not authorized to order specific performance. On July 30, 2002, the court rendered a second judgment, determining that it intended to give Plaisance an opportunity to cure the breach of lease: The court then amended its earlier judgment by ordering ^eviction, but allowing Plai-sance the opportunity to cure its breach of lease by commencing its maintenance obligations as per the guidelines and timetable established on June 5th. In the event it chose not to do so, Plaisance was ordered to vacate the property no later than August 2, 2002. It is this judgment that Plaisance appeals.

On appeal, Plaisance urges that the trial court erred in considering evidence of the “environmental theory of breach of contract,” because that claim had been abandoned. Plaisance also argues that the court erred in relying on evidence outside the four corners of the lease, in order to determine the lessee’s obligation thereunder. Additionally, Plaisance urges the court erred in finding that the parties intended that it would have the obligation of recapping the levees, and that it breached its obligations under the lease.

Plaisance asserts that the entire thrust of the Notice to Vacate and the Rule to Evict was based upon a claim that Plai-sance violated environmental standards, and that there was no mention of a “recapping theory” in the original proceedings.

Although Plaisance does not favor us with any statutory or jurisprudential references in its brief to this court, we note La. C.C.P. art. 4731(A):

If the lessee or occupant fails to comply with the notice to vacate required under this Title, or if the lessee has waived his right to notice to vacate by written waiver contained in the lease, and has lost his right of occupancy for any reason, the lessor or owner, or agent thereof, may cause the lessee or occupant to be cited summarily by a court of competent jurisdiction to show cause why he should not be ordered to deliver possession of the premises to the lessor or owner. The rule to show cause shall state the grounds upon which eviction is sought.

The pleading filed by Kappa stated only that the lease was terminated. However, attached to and incorporated in the rule was a copy of the lease, its assignment from LL & E to Kappa, and correspondence sent to Plaisance by Kappa. The letter, dated November 21, 2001 and sent by Kappa’s attorney, stated in pertinent part:

|ROur client wrote to you on November 5, 2001 concerning your failure to properly adhere to the maintenance requirements under the lease. All of these maintenance requirements are specifically provided for by the lease, and, in certain situations, by applicable law. The letter further stated that unless you agreed to the immediate and proper performance of these maintenance requirements that Kappa Loyal would have to terminate the lease. Your letter of response dated November 12 is not acceptable, and your position and actions do not satisfy your obligations as tenants under the lease. Accordingly, in accordance with Section 15 of the lease, Kappa Loyal, as lessor, hereby terminates the lease effective November 30, 2001.

Here, Kappa demanded eviction for Plai-sance’s failure to properly maintain the property, which, as the attached lease illustrates, included the levees.

Article 9 of the lease states as follows:

Lessee takes cognizance that the property hereby leased is located in a reclamation area, surrounded by levees, and that drainage of the area is maintained by leveeing and pumping, using an existing pumping station, levees and a series of drainage canals, ditches and reservoirs. Lessee acknowledges that it has inspected the levees, drainage canals, roads, ditches reservoirs and pumping station and is familiar with the condition of each, and particularly, that it is familiar with the condition of the levees, machinery and equipment of the pumping station. In connection therewith, Lessee binds and obligates itself as follows:
(a) Lessee agrees to maintain, repair and operate, at its sole cost and expense, the existing pumping station, its pumps, machinery and equipment, and to replace, at its sole cost and expense, any and all machinery, pumps and equipment, or part thereof, which from time to time must be replaced in order to properly operate the pumping station, its pumps, machinery, pumps and equipment (or parts thereof) presently existing on the leased premises. All such replacement machinery, pumps and equipment (and parts thereof) shall become and remain the property of the Lessor, without payment of any consideration thereof, and may not be removed by Lessee at the termination of this lease.
(b) Lessee agrees to maintain, at its sole cost and expense, the drainage canals, roads, ditches, ponds, reservoirs and levees including perimeter levees, in such condition as is necessary to assure proper and adequate passage over and protection and drainage to the leased premises, and take all reasonable steps necessary to prevent the overflow of any of the perimeter levees; it is understood and agreed, however, that Lessee shall have the right to dredge the existing borrow canal, located outside the perimeter of the leased premises and indicated on Exhibit “B” as “borrow canal”, for the purpose of obtaining spoil to maintain and raise the said perimeter levees.

Thus the court correctly considered evidence relative to recapping as maintenance. Further, although Kappa avers that the letter of November 5, 2001 |fiwas attached to the rule, the record does not so evidence, and there is no reference to the letter as an exhibit in the rule. That letter was admitted at trial, however, and states partially as follows:

Section 9 of the Lease contains specific maintenance requirements that the Lessee agrees to undertake in light of the fact that the Leased Premises consist of a reclamation area surrounded by levees which requires constant drainage and infrastructure maintenance. In addition, Section 14 of the Lease requires you to comply with all laws, rules and regulations of any federal, state or local agency having jurisdiction over the Leased Premises and your operations under the Lease.
This is to formally advise you, as Lessee, that you have not properly performed your obligations as Lessee with respect to you maintenance requirements and unless immediate, complete and satisfactory maintenance repairs are made that Kappa Loyal will terminate the lease pursuant to Section 15.

The letter then referred to an environmental audit and specified a number of maintenance items to be addressed immediately, including:

The levees require significant work which is essential in order to maintain the integrity of the Leased Premises as a reclamation area. The new levees that were constructed after Tropical Storm Alison must be planted to protect from erosion. All levees must be cleaned, cut and mowed. In addition, there must be diligent inspection of the levees and repair of any animal or other damage. The breach that was partially repaired requires recapping and planting.

At trial, Plaisance objected to admission of the audit attached to the correspondence, but not to the letter itself. The letter illustrates that recapping was a principal element of the maintenance issue, of which element Plaisance was made aware prior to Kappa’s notification to vacate the property. Finally, there was testimony during trial regarding recapping. Because Plaisance did not urge that admission of such evidence concerning the failure to recap was beyond the scope of the pleadings, evidence on this matter was thus properly admitted.

The law on contract interpretation has been summed up as follows:

We are obligated to give legal effect to contracts according to the true intent of the parties. LSA-C.C. art.2045. The true intent of the parties to a contract is to be determined by the words of the contract when they are clear, explicit, and lead to no absurd consequences. LSA-C.C. art.2046. When the words of a contract are clear and explicit and lead to no absurd consequences, no | .¡further interpretation may be made in search of the parties’ intent. LSA-C.C. art.2046. In such cases, the meaning and intent of the parties to the written contract must be sought within the four corners of the instrument and cannot be explained or contradicted by parol evidence. LSA-C.C. art. 1848. Contracts, subject to interpretation from the instrument’s four corners without the necessity of extrinsic evidence, are to be interpreted as a matter of law, and the use of extrinsic evidence is proper only where a contract is ambiguous after an examination of the four corners of the agreement. In cases in which the contract is ambiguous, the agreement shall be construed according to the intent of the parties. Intent is an issue of fact which is to be inferred from all of the surrounding circumstances. A doubtful provision must be interpreted in light of the nature of the contract, equity, usages, the conduct of the parties before and after the formation of the contract, and other contracts of a like nature between the same parties. LSA-C.C. art.2053. Whether a contract is ambiguous or not is a question of law. Where factual findings are pertinent to the interpretation of a contract, those factual findings are not to be disturbed unless manifest error is shown.

In its Reasons for Judgment, the court considered the issue of ambiguity:

Kappa Loyal contends that Article 9 of the lease requires Plaisance to recap the perimeter levee. Plaisance’s position regarding this issue is not clear. At one point in the trial Glenn Plaisance testified that he believed that the recapping of the levee was to be performed over the 20 years of the lease. Later he testified that he did not believe that Plaisance had an obligation to recap the levee and that any recapping that was performed was over and above the requirements of the lease. Although Article 9 of the lease requires Plaisance to maintain the levees in such condition as is necessary to assure protection and drainage to the leased premises, and to take all reasonable steps necessary to prevent the overflow of any of the perimeter levees, the parties did not delineate in the lease any specific acts that Plaisance was required to undertake in order to fulfill this obligation of maintenance. At best, the language of Article 9 is unclear and ambiguous as to the specific acts that Plaisance was required to undertake in order to maintain the perimeter levees.

Our review of the lease discloses that the general requirement in Article 9 to take reasonable steps to maintain the levees does not describe or define specific actions to be taken by Plaisance in assuring protection and drainage to the premises, and in preventing overflow. As Kappa points out, maintenance could involve recapping of all or only some of the levees, or could encompass some other requirements. In that respect, we agree that the lease is vague and uncertain, and | «the trial court properly admitted parol evidence to clarify the ambiguity and reveal the intent of the parties.

In this case, discerning the intent of the parties to the lease necessarily involves determining the intent of LL & E, as well as that of Plaisance, as of the time the lease was confected.

Glen Plaisance testified that his company is a general oil field contractor. As he began negotiating for the original lease, Kermit Coulon of LL & E wrote to him with information and maps of the area, and stated, in a letter dated February 19,1993: “As you are aware any proposal should include recapping of the outer levee in the early stages of the lease... .We are interested in a long term lease and a Lessee that will make a commitment to the maintenance of the Project.” Plaisance responded in a letter dated March 8, 1993 by stating, in part:

We will commit all necessary equipment and labor to repair approximately 13,300 feet of levee located on the west and north side of the project. We would suggest the broadening of this levee base to 20 feet and the crown by 10 feet and recap an additional 18,850 feet of levee located on the north, east, and south exteriors of the project... .We would maintain approximately 5,000 feet of access road and elevate with limestone where necessary, repair the two 24' discharge pipes, construct shelter over pump station, and repair decking.

On April 5, 1993, LL & E sent a letter to Plaisance, stating that “[we] wish to inform you that we have accepted your proposal regarding said lease.” No evidence of any other proposal by Plaisance was admitted at trial.

At trial, Plaisance testified that the repair of the 13,300 feet of levee was “in a long term, twenty year deal”:

We’re looking at twenty years having the lease and there was approximately thirteen hundred and so many feet that we would do over that period of time. There was [sic] some of the areas in this first letter that said needed to be recapped at the beginning of the lease. This was the area that I was talking about.

Plaisance stated that he didn’t understand that he was supposed to recap all of the outer levees, but only a portion of them. He based his offer to recap the additional 18,850 feet of levee on noticing different spots that possibly could give 19them problems in the future. Because the levee was approximately 34,700 feet long, Plaisance understood that there were only three or four thousand feet of levee that were not going to be recapped. He testified that he has recapped 6400 feet, and cleared approximately 10,600 feet of exterior levee to facilitate recapping for maintenance in the southwest and south areas of the project. The only other recapping that has been done occurred in places on the levee that were breached. Such breach occurred in 1998 with Tropical Storm Fran and again in. 2001 with Tropical Storm Alison. There was approximately six and one-half miles of perimeter levee.

Plaisance testified that the obligations imposed in article 9(b) of the lease were not the same as he outlined in his proposal to LL & E. He knew there were areas that needed recapping, which would be done at the start of the lease, and possibly in the future “in the long time. So, what I’m reading in the actual lease is telling me that I have to maintain it, maintain the levees in a passable[sic]. That’s where it differs from what we were sending in our letters for our bid proposal.” It was never indicated to him that he had to recap the entire levee, although Plaisance figured that eventually, that would have to be done. Plaisance testified:

... what my proposal that I offered to LL & E was just a proposal. It was not, when we negotiated, when we went in to talk about the lease none of my proposal was in the lease. I recapped six thousand, four hundred feet. It was because I wanted to. It wasn’t because I had to do it. I cleared out the ten thousand, six hundred feet of exterior levee. I didn’t have to do that. The lease didn’t tell me to do that.

He subsequently added: “what the lease tells me to do or dictates for me to do is not what’s in the proposal.” Plaisance felt that he did not have to do any additional recapping unless the levees were breached.

Kermit Coulon testified that the acceptance of Plaisance’s offer was based not only on the matters in the proposal, but also on LL & E’s past dealings with the Plaisance as a tenant, and the history of the property itself. Plaisance’s family has | T pleased from LL & E for the last fifty years in Lafourche Parish and they have been good tenants. At the time the original lease was awarded, another lessor had bid the lease for $127,000.00 per year, in addition to arranging to recap the weakened sections of the levee. When the lease was awarded to Plaisance, it was taken into consideration that Plaisance had another project nearby, with machinery, and LL & E could call them on short notice in case of any problems. Making money was not as important as maintaining business relationships and having good tenants. Coulon testified that Plaisance was accepted as the lessee based on his written proposal as well as for the other factors mentioned above.

The property in Paradis had flooded in 1991, and the breaches in the levees were repaired at that time. The pump discharge pipes were also in poor condition. After Plaisance leased the land, LL & E employees would go there from time to time to hunt alligators, but did not go for the purpose of inspecting it. Every year, LL & E would fly over all its properties to check all 600,000 acres, but the property could not be checked, from the air, for rodent holes, density of brush or trees, or flooding on the property from an eroding levee. LL & E did not have reports of any deficiencies in maintenance on the Paradis project. However, after Tropical Storm Alison, an LL & E employee was sent to inspect the area, and found three or four places where the water had come over the levees. Because Plaisance was busy repairing another portion of levee, and because there was a pending sale to Kappa, LL & E decided to have a contractor repair those breaches and recap the levees; Coulon did not consider this to be an obligation of Plaisance under the lease. However, on cross-examination he stated that normally, this repair would have been Plaisance’s duty. During LL & E’s ownership, there were no problems with Plai-sance’s maintenance of the levees.

In its Reasons for Judgment, after reviewing the lease on the question of maintenance and recapping of levees, the court stated:

|nThe most compelling evidence regarding the intent of the parties regarding maintenance of the perimeter levees comes from the correspondence of the parties prior to the execution of the lease. In a January 28,1993 letter from LL & E to Glenn Plaisance, Kermit Coulon, Jr. indicated that “the levee system will require additional recapping in order to ensure its stability in the event of high water or storms,” In a subsequent letter on February 9, 1993, in which LL & E sought a proposal from Plaisance for the lease of the Property, Mr. Coulon indicated that “any proposal should include recapping of the outer levee in the early stages of the lease.” And in his proposal dated March 8,1993, Glenn Plaisance would “commit all necessary equipment and labor to repair approximately 13,300 feet of levee located on the west and north side of the project” and “recap an additional 18,850 feet of levee located on the north, east, and south exteriors of the project.” In his letter of Arpil 5, 1993, to Glenn Plaisance, Mr. Coulon indicated that after reviewing all of the proposals submitted that LL & E had accepted Plai-sance’s proposal regarding said lease. (Judgment With Reasons)

The court found that during the first year, Plaisance did in fact recap approximately 6,400 feet of the perimeter levee. Finally, the court determined that the annual rental of $8,000.00 for 1,631 acres of land appeared to be extremely low unless the parties intended that there would be some other substantial form of consideration such as the recapping of levees at the lessee’s expense. Based on these findings, the court found that Plaisance had an obligation under the maintenance provisions of Article 9 to recap 32,150 feet of the perimeter levee as indicated in its March 8, 1993 proposal.

In applying the manifest error rule to the trial court’s interpretation, the Court of Appeal may not simply substitute its own view of the evidence for the trial court’s view, nor may it disturb the trial court’s finding of fact so long as it is reasonable. The court’s conclusion that the annual rental was extremely low unless the parties intended some other substantial form of consideration such as recapping was a reasonable one. The court determined, and we agree, that Plaisance’s testimony was unclear relative to his belief and intent at the time the lease was fashioned. When findings are based on determinations regarding the credibility of witnesses, the manifest error-clearly wrong standard demands great 112deference to the trier of fact’s findings, for only the factfin-der can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said.

Mr. Coulon testified that Plaisance’s bid was accepted based on its proposal, as well as on experience with the Plaisance family on other properties. We find that the written instruments, that is, the lease bid requiring all proposals include recapping in the early stages of the lease, the proposal submitted by Plaisance incorporating recapping, and LL & E’s acceptance of that proposal, support the conclusion of the trial court that Plaisance had an obligation to recap the levees. We hold that the trial judge’s factual finding as to intent was reasonable and adequately supported by credible evidence in the record and we find no manifest error in either that determination, or in the finding that the lease was breached.

Plaisance urges that any uncertainty in a lease agreement must be construed against the lessor, in favor of the lessee, and against dissolution, in favor of maintenance of the lease. However, under La. C.C. art.2053 a doubtful provision must be interpreted in light of the nature of the contract, equity, usages, the conduct of the parties before and after the formation of the contract, and of other contracts of a like nature between the same parties. Testimony of both Coulon and Plaisance indicated that these were sophisticated parties who had formed other like contracts. Although LL & E had not made demand for additional recapping, Coulon’s testimony revealed that inspection of the property during the term of the lease was minimal and the levees were not inspected.

While it spent large sums on maintenance, Plaisance admitted that early on, it recapped only 6,400 feet of levee. In addition, it later recapped small portions of the levee after water topped over in those areas. After notification by Kappa following its assumption of the lease, Plaisance did not respond by recapping the 1 iaperimeter levees. The evidence supports the conclusion of the trial court that the maintenance terms of the lease were breached, and therefore eviction was a proper remedy. La. C.C.P. art. 4701.

For the foregoing reasons, the judgment is affirmed. Plaisance is taxed all costs of appeal.

AFFIRMED.

      . See La. C.C.P. art. 1154; Lacrouts v. Future Abrasives, Inc., 99-583 (La.App. 5 Cir. 11/10/99), 750 So.2d 1063; writ denied 1999-3484 (La.2/11/00), 754 So.2d 941.

      . Fleniken v. Entergy Corp., 1999-3023 (La.App. 1 Cir. 2/16/01), 790 So.2d 64, writ denied 01-1268 (La.6/15/01), 793 So.2d 1250, writ denied 01-1305 (La.6/15/01), 793 So.2d 1253, writ denied 01-1317 (La.6/15/01), 793 So.2d 1254.

      . Syne v. Schilhab, 96-1027 (La.5/20/97), 693 So.2d 1173; Lakeland Anesthesia, Inc. v. CIGNA Healthcare of LA, Inc., 2001-1059 (La.App. 4 Cir.2/6/02), 812 So.2d 695.

      . D & D Investments v. First Bank and Trust, 02-440 (La.App. 5 Cir. 10/29/02), 831 So.2d 488.