author: JjGREMILLION, Judge. h COOKS, J.,

text:
    The SOUTHERN AMUSEMENT CO., INC. v. PAT'S OF HENDERSON SEAFOOD & STEAK, INC.
    No. 03-767.
    Court of Appeal of Louisiana, Third Circuit.
    March 31, 2004.
    Rehearing Denied May 19, 2004.

      C. Eston Singletary, Jr., Scofield, Gerard, Veron, Singletary & Pohorelsky, Russell J. Stutes, Jr., Lake Charles, LA, for Plaintiff/Appellant, the Southern Amusement Co., Inc.
    Rudie Ray Soileau, Jr., David Dwight, Lake Charles, LA, for Defendani/Appellee, Pat’s of Henderson Seafood & Steak, Inc.
    Christopher E. John, Lake Charles, LA, for Intervenor/Appellee, City of Lake Charles.
    Court composed of SYLVIA R. COOKS, OSWALD A. DECUIR, and GLENN B. GREMILLION, Judges.
   JjGREMILLION, Judge.

The plaintiff, Southern Amusement Company, Inc., appeals the judgment of the trial court denying its motion for a new trial on the issue of whether a private and public servitude exists on property owned by the defendant, Pat’s of Henderson Seafood and Steaks, Inc. We affirm in part, reverse in part, and render.

FACTS

On September 30, 1977, Joseph and Shirley Mclver, Jr. and Robert and Mary Elam purchased a tract of land containing 28.56 acres, located in Section 3, Township 10 South, Range 8 West, from the Board of Trustees of State Colleges and Universities of the State of Louisiana and McNeese State University. The property, located in Lake Charles, Louisiana, is bordered on the east by the Interstate 210 Bypass, on the south by Avenue “J,” on the west by Kayouche Coulee, and on the north by private property. Contained within the Cash Deed is the following language:

As a part of the consideration for this sale, Vendor and Vendee hereby dedicate to the City of Lake Charles, all road rights-of-way shown on the attached plat of survey dated June 7,1977, Whitaker & Webb, Civil Engineers, for Jacox Lane, Von Blond Drive, and over the North 30 feet and the Easterly 50 feet of the property.

A notation on the attached survey of the property reiterates: “1. Vendor and Vend-ee hereby dedicates for public use all Right of Ways for roads and streets as shown above.” This Cash Deed was filed in the conveyance records of Calcasieu Parish on October 12, 1977. An Act of Correction of Deed was filed in the conveyance records by these same parties on October 19, 1981, whereby a correction was made to the point of commencement of the legal description of the property. Otherwise, the contents of the Cash Deed remained unchanged.

| ¡..This lawsuit stems from the reservation of a servitude for a proposed road contained in a February 6, 1981 Cash Sale Deed, in which the Mclvers and the Elams conveyed a portion of the above tract to Richard and Nancy Perioux. The property sold was located in the southeastern corner of the tract and is bounded on the east by the Interstate 210 Bypass, on the south by Avenue J, and on the north and west by property owned by the Elams and Mclvers, which includes a subdivision to the north known as “The Hamlet.” The Cash Sale Deed contains the following language:

Thence North 89 57' 30" West 388.25 feet along the South line of Lots 1, 2, and 3 of Block 3 of “The Hamlet” Subdivision to the point of commencement, containing 97,219 square feet of area and subject to a 50 foot wide easement for a proposed road along the East side and a drainage easement along the South side.

(Emphasis added).

On April 26,1982, the Periouxs executed a Cash Deed in favor of Pat’s of Henderson Seafood and Steaks, Inc., which conveyed the above described property to them. The Cash Deed contained the same language reserving the fifty-foot easement for a proposed road.

Southern Amusement also owned property located in Section 3, Township 10 South, Range 8 West, located north of the Mclver and Elam tract and bounded north by Broad Street. In 1988, Wal-Mart Properties, Inc. approached Southern Amusement with the intent of purchasing a portion of its property in order to construct a Sam’s Club. Southern Amusement was amenable to the proposition, however, it requested that the deal be structured as an act of exchange for tax purposes. As part of the exchange, Wal-Mart agreed to purchase a tract of land from | sthe Mclv-ers and Elams and transfer it, along with a sum of money, to Southern Amusement, in exchange for the property fronting Broad Street. Wal-Mart purchased the property, located just north of “The Hamlet” Subdivision, from the Mclvers and Elams, on April 26, 1988. The Cash Deed contained the following language:

[Containing 8.00 acres more or less, together with a servitude and/or road right-of-way 50 feet wide running from the Southeast corner of this property along the West right-of-way line of I-210 By Pass, 440 feet more or less to the North line of Avenue “J”. Sellers agree to pay the cost of paving suitable for dedication of that portion of the servitude affecting Lot 1 of Block 2 and Lot 1 of Block 3 of Hamlet Subdivision. Sellers convey to purchaser the joint use of the servitude sellers reserved in that sale recorded in COB 1416, page 488, corrected in COB 1648, page 596.

The Act of Exchange was executed by Wal-Mart and Southern Amusement on April 25 and 27, 1988, wherein Southern Amusement became the owner of the afore described eight acres.

In 1997, Southern Amusement became interested in developing its property and wished to gain access to the southern portion through the servitudes contained in the above described conveyances. In furtherance of this desire, George Crosby, the vice-president and secretary of Southern Amusement, contacted Richard Perioux about executing a document formalizing all of the servitudes listed in the conveyances. Although Perioux agreed to discuss the matter with Crosby, he refused to sign the document, on the advice of his attorney, based upon a belief that the servitude across the easternmost portion of his property had prescribed after ten years of non-use.

On July 1, 1998, Southern Amusement filed a Petition for Declaratory Judgment seeking a declaration that a servitude granted by the Periouxs, and later LPat’s, in favor of the Elams and Mclvers, and later Southern Amusement, still exists and has not prescribed through nonuse. In response, Pat’s filed a peremptory exception of prescription arguing that the predial servitude had prescribed through non-use of ten years. Following a hearing, Judge Gregory Lyons sustained Pat’s exception of liberative prescription and dismissed Southern Amusement’s petition for declaratory judgment with prejudice. Judgment was rendered in this matter on May 10,1999.

On May 24, 1999, Southern Amusement filed a motion for a new trial alleging evidence of the public servitude granted in favor of Lake Charles by the Elams and Mclvers and the Board of Trustees and McNeese in their 1977 Cash Deed and the 1981 correction. It argued that the newly discovered servitude established a formal dedication of the property and transferred ownership of the property to Lake Charles. Thus, it argued that the servitude could not be lost through nonuse. In the alternative, it argued that an implied dedication was created and that use of the road had occurred, as found by the trial court.

On April 24, 2000, Lake Charles intervened in this matter seeking a declaratory judgment that it owned the property over which the public servitude was dedicated, via the 1977 Cash Deed and the 1981 Act of Correction of Deed, or, in the alternative, that the dedication established a servitude of public use, which had not prescribed. Following a hearing on the motion, Judge D. Kent Savoie, sitting for the then retired Judge Lyons, denied Southern Amusement’s motion for a new trial and, further, denied Lake Charles’ petition in intervention. This appeal by Southern Amusement followed.

IJSSUES

On appeal, Southern Amusement raises numerous errors allegedly committed by the trial court. It argues that the trial court erred in finding that both the private and public servitudes had prescribed through nonuse and that the construction of a fence by Pat’s did not suspend the running of prescription. It further argues that the trial court committed legal error in finding that the sole purpose of the servitudes was for the construction of a road from Siebarth Drive to Broad Street, in relying on parol evidence to reach that conclusion, and by not applying the public records doctrine to defeat an alleged oral agreement between the Elams and Mclv-ers and the Periouxs. Southern Amusement next argues that the trial court erred in denying its motion of a new trial, without considering its good grounds, and in finding that the 1977 Cash Deed did not formally dedicate full ownership of the subject strip of land, or, in the alternative, that it did not formally dedicate a public servitude. Finally, it argues that the trial court erred in finding that the public servitude had prescribed through nonuse, even though it found that the servitude had been used, but not for the supposed purpose of traveling from Siebarth Drive to Broad Street.

MOTION FOR NEW TRIAL

The Louisiana Code of Civil Procedure provides two instances under which a motion for new trial will be granted. Louisiana Code of Civil Procedure Article 1972 provides peremptory grounds under which such a motion will be granted:

1. When the verdict or judgment appears clearly contrary to the law and the evidence.
[fi2. When the party has discovered, since the trial, evidence important to the cause, which he could not, with due diligence, have obtained before or during the trial.
3. When the jury was bribed or has behaved improperly so that impartial justice has not been done.

Louisiana Code of Civil Procedure Article 1973 further provides that a motion for new trial may also be granted “if there is good ground therefore, except as otherwise provided by law.” In both instances, the trial court is accorded vast discretion in deciding whether to grant the motion; its decision whether to do so is reviewed pursuant to the abuse of discretion standard of review. Davis v. Coregis Ins. Co., 00-475 (La.App. 3 Cir. 12/27/00), 789 So.2d 7, unit denied, 01-0292 (La.3/30/01), 788 So.2d 1192.

Southern Amusement based its motion for new trial on two grounds: 1) its late discovery of the public servitude contained in the 1977 Cash Deed, as acknowledged in the 1981 Act of Correction of Deed, and 2) for other good grounds. The trial court denied Southern Amusement’s first ground since its counsel admitted that he could have discovered the existence of the public servitude prior to the hearing on the exception had he performed a title search on the property. Southern Amusement does not appeal this finding. Rather, it argues that the trial court failed to rule on its argument that the motion for new trial should have been granted for other good grounds raised by it. After reviewing the record, we find that a private servitude was never created in favor of the Mclvers and Elams, and later Southern Amusement. Accordingly, we affirm the trial court’s denial of Southern Amusement’s motion for new trial with regard to the existence of a private servitude in its favor. However, we do find that a servitude of public use was created through 17a formal dedication in favor of Lake Charles.

Private Servitude

Louisiana Civil Code Article 646 provides that a “predial servitude is a charge on a servient estate for the benefit of a dominant estate. The two estates must belong to different owners.” Louisiana Civil Code Article 647 further provides that there must be a benefit to the dominant estate. Predial servitudes may be established by title, and if so, their use and extent are regulated by the title creating them. La.Civ.Code art. 697. They may also be established in any way in which immovables may be transferred. La.Civ. Code art. 722. In interpreting predial ser-vitudes, “Doubt as to the existence, extent, or manner of exercise of a predial servitude shall be resolved in favor of the ser-vient estate.” La.Civ.Code art. 730.

When a predial servitude is created by title, the intention of the parties to place a charge on one estate for the benefit of another estate, and the extent of the charge, must be expressed on the face of the title document and cannot be inferred or implied from vague or ambiguous language. The title document must also reasonably identify the dominant estate and the servient estate.

Mardis v. Brantly, 30,773, pp. 2-3 (La. App. 2 Cir. 8/25/98), 717 So.2d 702, 704, writ denied, 98-2488 (La.11/20/98), 729 So.2d 563 (citations omitted); see also Dautreuil v. Degeyter, 436 So.2d 614 (La. App. 3 Cir.1983). Moreover, in Palomeque v. Prudhomme, 95-0725, p. 7 (La.11/27/95), 664 So.2d 88, 93, the supreme court stated:

Predial servitudes are in derogation of public policy because they form restraints on the free disposal and use of property. Therefore, servitudes are not entitled to be viewed with favor by the law and can never be sustained by implication. Buras Ice Factory, Inc. v. Dept. of Hwys. of La., 235 La. 158, 103 So.2d 74, 80 (1958)[(1957)]; Gravolet v. Bd. of Commissioners, 598 So.2d 1231, 1234 (La.App. 4th Cir.1992); see also, 1 DOMAT, THE CIVIL LAW IN ITS NATURAL ORDER, tit. XII, sec. 1, at 435 (Strahan, trans., Cushing ed., 2d ed. 1861). Any doubt as to the existence, extent or manner of exercise of a predial servitude must be | ¿resolved in favor of the servient estate. La.Civ.Code art. 730; McGuffy v. Weil, 240 La. 758, 125 So.2d 154, 158 (1960).

The alleged private servitude stems from the 1981 conveyance from the Elams and Mclvers to the Periouxs. Contained in the property description of the tract is the language:

Thence North 89 57' 30" West 388.25 feet along the South line of Lots 1, 2, and 3 of Block 3 of “The Hamlet” Subdivision to the point of commencement, containing 97,219 square feet of area and subject to a 50 foot wide easement for a proposed road along the East side and a drainage easement along the South side.

The language purporting to establish the private servitude is “subject to a 50 foot wide easement for a proposed road along the East side.” However, after reviewing all of the documents submitted into evidence, consisting of all conveyances commencing in 1977 and ending with Wal-Mart’s exchange with Southern Amusement in 1988, we find that this language did not establish a predial servitude of right of passage. The language fails to reasonably identify a dominant estate nor does it indicate the intent of the parties to place a charge on the servient estate in favor of a dominant estate. Rather, we find that the language merely acknowledges the previous dedication to Lake Charles, of the fifty-foot right-of-way contained in and confirmed in the 1977 Cash Deed and the 1981 Act of Correction of Deed, respectively. Since we find ambiguity in the attempted establishment of a predial servitude, this issue must be resolved in favor of Pat’s. Accordingly, the trial court’s denial of Southern Amusement’s motion for a new trial on the issue of a private servitude is affirmed.

Public Servitude

On the other hand, we find that the trial court abused its discretion in 13denying Southern Amusement’s motion for new trial based on a finding that the servitude created in the 1977 Cash Deed and 1981 Correction of Cash Deed was an informal servitude requiring proof of intent to dedicate and acceptance by the public.

A review of the jurisprudence indicates that there are four ways in which public servitudes may be created. In St. Charles Parish School Board v. P & L Investment Corp., 95-2571, pp. 4-7 (La.5/21/96), 674 So.2d 218, 221-22, the supreme court stated:

Louisiana has never enacted a comprehensive scheme of dedication to public use. Garrett v. Pioneer Production Corporation, 390 So.2d 851, 854 (La. 1980). However, Louisiana courts have recognized four modes of dedication: formal, statutory, implied, and tacit. A landowner may make a formal dedication of a road by virtue of a written act, such as a deed of conveyance to the police jury of the parish. Frierson v. Police Jury of Caddo Parish, 160 La. 957, 107 So. 709 (1926). The written act may be in notarial form or under private signature. YIANNOPOULOS, PROPERTY § 95, at 204-205. A formal dedication transfers ownership of the property to the public unless it is expressly or impliedly retained. YIANNOPOU-LOS, PROPERTY § 95, at 208-209. If the landowner retains ownership of the property, the public acquires a servitude of public use.
Statutory dedication occurs when a landowner subdivides real estate in accordance with the requirements of La. R.S. 33:5051. In order to effect a statutory dedication, complete and detailed compliance with the statute is not required; substantial compliance will suffice. Garrett, 390 So.2d at 856. La.R.S. 33:5051 provides for the subdivision of real estate into squares or lots with named streets and for the dedication to public use of all streets, alleys, and public squares on the map. A statutory dedication vests ownership in the public unless the subdivider reserves ownership of streets and public places and grants the public only a servitude of use. Arkansas-Louisiana Gas Co. v. Parker Oil Co. Inc., 190 La. 957, 183 So. 229, 238 (1938) (on rehearing).
Implied dedication is a common law doctrine recognized by the courts of this state. Ford v. City of Shreveport, 204 La. 618, 16 So.2d 127, 128 (1943). A dedication by implication consists of the assent of the owner, use by the public, and maintenance by the municipality. Wyatt v. Hagler, 238 La. 234, 114 So.2d 876, 878 (1959). Because implied dedication lacks the formalities and safeguards of formal or |instatutory dedication, courts have required “a plain and positive intention to give and one equally plain to accept.” Carrollton Rail Road Co. v. Municipality No. Two, 19 La. 62, 71 (1841). Courts have also found an implied dedication when the owner of a tract of land subdivides it into lots, designates streets or roads on a map, and then sells the property or any portion of it with reference to the map. James v. Delery, 211 La. 306, 29 So.2d 858, 859 (1947). An implied dedication establishes a servitude of public use. Arkansas-Louisiana Gas Co. Inc., 183 So. at 240; Becnel v. Citrus Lands of Louisiana, Inc., 429 So.2d 459 (La.App. 4th Cir.), writ denied, 437 So.2d 1147 (La. 1983). See, Missouri Pacific Railroad Co. v. City of New Orleans, 46 F.3d 487 (5th Cir.1995).
A tacit dedication of a strip of land for use as a public road occurs when the requirements of La.R.S. 48:491 are met. La.R.S. 48:491 provides, in pertinent part,
B. (l)(a) 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.
If a road is maintained for a period of three years by authority of the parish governing authority, the public acquires a servitude of passage by tacit dedication. Robinson v. Beauregard Parish Police Jury, 351 So.2d 113, 115 (La. 1977). Token maintenance or an occasional brushing up of a road is insufficient to establish a tacit dedication for public use. Robinson, 351 So.2d at 115.

Judge Savoie held that the servitude contained in the 1977 Cash Deed was created by an informal dedication, presumably an implied dedication. He further found that the implied dedication by the parties created a servitude of public use, which was never formally accepted by Lake Charles and was lost through prescription of ten years of nonuse. However, we find that the dedication created was a formal dedication, rather than an implied dedication, thus, formal acceptance was not required.

In With regard to formal dedications, Professor Yiannopoulos stated:

In a strict sense, a formal dedication is a donation of a thing or of its use to the public for designated public purposes. As a donation, a formal dedication ought to conform with the requirements of substance and form governing gratuitous dispositions. For example, the act of dedication ought to be made in authentic form and it ought to be accepted by the public. Examples of this form of dedication are found in Louisiana jurisprudence.
However, strict compliance with the requirements governing donations would be cumbersome. It would discourage or even defeat dedication in may cases. For these reasons Louisiana courts have taken a much broader view of formal dedication that has no foundation in legislative texts. According to the jurisprudence, a formal dedication is a donation to the public that may be made by a written juridical act. Accordingly, neither authentic form nor acceptance of the donation by the public is required. There must be, however, a clear intent to dedicate.

A.N. YiaNNOPoulos, Property § 97, at 211-12 (2 Louisiana Civil Law Treatise 2001) (footnotes omitted) (emphasis added).

Here, the servitude is contained in a written juridical act, the 1977 Cash Deed, and confirmed in a notarial act, the 1981 Act of Correction of Deed. These acts clearly reveal an intent to dedicate the road right-of-ways, including the fifty-foot right-of-way, to Lake Charles. Although we agree with the trial court’s finding that the parties intended to retain ownership of the underlying property, a formal servitude of public use still exists, for which acceptance was not required.

Accordingly, we find that the trial court abused its discretion in finding that the servitude at issue was an implied dedication which required acceptance by Lake Charles. However, we shall not remand this matter for a new trial since the record is complete on this issue. We shall conduct a de novo review and render judgment on whether the public servitude in favor of Lake Charles has prescribed. Graves v. Lou Ana Foods Inc., 604 So.2d 150 (La.App. 3 Cir.1992).

PUBLIC SERVITUDE

Initially, we must determine whether there was a formal dedication of a servitude of public use or a transfer of title to the property. Upon review, we find that the 1977 Cash Sale Deed established a servitude of public use in favor of Lake Charles, via a fifty-foot right-of-way along the eastern edge of the property conveyed. As noted by Professor Yiannopoulos, there must be a clear intent to dedicate and, to that end, there must be a clear dedication of title to the dedicated property in order to transfer ownership. A right of way is defined in Blacks Law Dictionary, 1326 (6th Ed.1990), as a “[t]erm used to describe a right belonging to a party to pass over land of another.” Further, “As used with reference to right to pass over another’s land, it is only an easement; and grantee acquires only right to a reasonable and usual enjoyment thereof with owner of soil retaining rights and benefits of ownership consistent with the easement.” Id. Accordingly, we find that the dedication contained in the 1977 Cash Sale Deed was the dedication of a servitude of public use over the property rather than a formal dedication transferring ownership of the underlying property.

We are cognizant of our learned colleague’s concerns in her dissent but, in our opinion, it is clear that only the right-of-way was dedicated. Had the words “right-of-way” not been used, then we might have viewed this matter differently.

A servitude of public use created by formal dedication may be terminated in several manners: by formal revocation, evidence of intent to abandon, relocation of the road, and through ten years prescription of non-use. State, Dep’t of Transp. and Dev. v. Scramuzza, 96-1796, 96-1820 (La.4/8/97), 692 So.2d 1024; Robinson v. Beauregard Parish Police Jury, 351 So.2d 113 (La.1977).

In this instance, the right-of-way has not been developed and there has been no formal revocation by Lake Charles to revoke the dedication. Thus, we must determine whether the dedication has been lost through prescription of ten years of nonuse. La.Civ.Code art. 753.

Prescription of nonuse begins to run for an affirmative servitude from the date of last use. La. C.C. art. 754. An essential element of proof in an action involving prescription of nonuse for ten years under La.C.C. Art. 753 is that the servitude was in fact not used for any purpose consistent with its grant. See, Ashland Oil Company, Inc. v. Palo Alto, Inc., 615 So.2d 971, 973-974 (La.App. 1st Cir.1993), and cases cited therein. Prescription of nonuse is subject to the general rules regarding suspension and interruption of prescription.

Palgrave v. Gros, 02-249, p. 4 (La.App. 5 Cir. 9/30/02), 829 So.2d 579, 582. The burden of proof is on the owner of the dominant estate to prove that the servitude has been used. Tilley v. Lowery, 511 So.2d 1245 (La.App. 2 Cir.1987). Since this is a servitude of public use, the burden is on Southern Amusement to prove use. Moreover, if the servitude has never been used, then the prescriptive period commences to run from the date the servitude was established and its exercise is possible. A.N. YiaNNOPoulos, PREdial Sekvitudes § 164 (4 Louisiana Civil Law Treatise 1997).

Crosby testified that he inspected the property Southern Amusement acquired from Wal-Mart on numerous occasions, prior to and subsequent to the 1988 exchange. He stated that he accessed the property on more than one occasion through Pat’s parking lot, by driving to the eastern boundary of Pat’s parking lot and then onto the right-of-way, which was a grassy area, and then north towards Southern | uAmusement’s property. He also accessed it from the opposite direction. Crosby stated that he utilized the servitude after the exchange while having dirt hauled onto the property during the summer of 1988. He further testified that he traversed the servitude in 1992, when he visited the property in order to have it appraised. Sometime there after, he stated that a fence was erected across the servitude by Pat’s.

The parties further stipulated that Rox-enne Stodder would have testified that she accompanied Crosby to the property on more than one occasion in connection with the dirt work performed therein. However, she could not recall whether she traversed the servitude with Crosby. In support, Southern Amusement introduced into evidence checks it remitted to Stodder in 1988, for monitoring the dirt work. The parties further stipulated that Mack Love would testify that he and his father utilized the servitude in order to appraise Southern Amusement’s property in 1992.

Allen Singletary, a real estate developer, testified that he accompanied Crosby numerous times to inspect Southern Amusement’s property prior to and subsequent to the 1988 exchange. He further stated that he traveled over the servitude on foot in order to inspect the ditch located at the southeastern corner of Pat’s property.

Robert Elam testified that he and his wife, along with the Mclvers, conveyed the property owned by Pat’s to the Periouxs, and that he was very familiar with the area. He stated that he managed The Hamlet Subdivision until approximately 1991, but he could not recall anyone using the fifty-foot right-of-way during the time he was there. Although he could not state with assurance that the servitude was never used, he stated that it would almost be impossible due to | ^obstructions located just north of Pat’s, within the fifty-foot public right-of-way. Elam did, however, recall that Southern Amusement trucked in dirt to its property in 1988.

James Knapp, a registered land survey- or, testified that he surveyed the property at the request of Pat’s attorney in 1999. He stated that he located the fifty-foot right of way along the eastern boundary of Pat’s property, as well as along the eastern edge of The Hamlet Subdivision. He testified that there is no obstruction along the fifty-foot right-of-way located on Pat’s property. However, he did state that there are obstructions located just north of the fifty foot right-of-way on Pat’s property, which either encroach into or are located within the fifty foot right-of-way located adjacent to and just north of the right-of-way on Pat’s property. These include the side of a residence, two concrete foundations, and three clothes line poles.

Richard Perioux testified he was aware of the fifty-foot right-of-way at the time he purchased the property. When they built Pat’s, he stated that he paved the parking lot of the restaurant up to, but not including, the right-of-way. Perioux testified that he normally works eighty hours per week at Pat’s, including maintaining the outside of the property. He testified that he only saw Crosby drive across the right-of-way once, a few months prior to the March 1998 trial. Prior to that, he stated that he had never seen anyone drive across it. However, he admitted that there were substantial time periods during the evenings, on Mondays, and on holidays, when he was not present at the restaurant. Thus, he could not positively state that Crosby had never driven on the right-of-way prior during those times. He further testified that he constructed a fence across the entire northern and western boundary of Pat’s 11fiproperty, ion 1994, including the fifty-foot right-of-way.

The parties further stipulated that Nancy Perioux, Perioux’s wife, would testify that .she had no personal knowledge of anyone using the servitude area as a road.

After reviewing the evidence, we find that Southern Amusement has failed to prove that the servitude of public use, the fifty-foot right-of-way, has not prescribed through ten years of nonuse. Although Crosby testified that he drove over the servitude numerous times in 1988, the public servitude was intended for a road right-of-way. “A member of the public has the right to use things that are subject to public use in accordance with their nature or destination.” YiaNNOPoulos, PkopeRty § 91, at 201; see Worthen v. DeLong, 99-1149 (La.App. 1 Cir. 6/23/00), 763 So.2d 820. However, any doubt as to the manner of exercise of thé servitude is resolved in favor of the servient estate. Here, although the public servitude was traversed several times by Crosby, and on other occasions by Singletary and Love, it was never developed as a road. Since the parties intended that the servitude be used as a public road, which was never developed, we find that the public servitude established in favor of Lake Charles, in 1977, and confirmed in 1981, has prescribed through ten years prescription of nonuse. Accordingly, judgment is rendered in favor of Pat’s of Henderson Seafood and Steaks, Inc. finding that the servitude of public use across the eastern- most portion of its property has prescribed through nonuse.

CONCLUSION

For the foregoing reasons, we affirm the trial court’s judgment denying Southern Amusement’s motion for new trial on the issue of a private servitude. We 117reverse the judgment on the issue of a public servitude and we now order, adjudge, and decree that there be judgment in favor of the defendant-appellee, Pat’s of Henderson Seafood and Steaks, Inc., finding that a servitude of public use located on its property has prescribed through ten years of nonuse. The costs of this appeal are assessed to the plaintiff-appellant, Southern Amusement Company, Inc.

AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.

COOKS, J., dissents and assigns written reasons.

h COOKS, J.,

dissents.

This controversy stems from language in a Cash Deed dated September 30, 1977 in favor of the City of Lake Charles for the construction of a road:

As a part of the consideration for this sale, Vendor and Vendee hereby dedicate to the City of Lake Charles, all road rights-of-way shown on the attached plat of survey dated June 7, 1977, Whitaker & Webb, Civil Engineers, for Jacox Lane, Von Blond Drive, and over the North 30 feet and the Easterly 50 feet of the property. (Emphasis added.)

The majority finds this deed does not evidence an intent to dedicate to the public even though the words used in the document are unambiguous and subject to only one interpretation. The majority finds the Cash Deed only creates a servitude in favor of the public which can extinguished by ten years non-use. I respectfully disagree with the majority’s characterization of the language in the deed. The 1977 Cash Deed clearly provides the Vendor and Vendee “hereby dedicate to the City of Lake Charles” 50 feet for the construction of a road. A plat of survey was attached to the Cash Sale and recorded in the Conveyance Records. The City was not required to accept the dedication and ownership transferred to the City at that point. Additionally, the majority opinion does not address the Petition of Intervention by the City of Lake Charles. The City intervened in the suit asserting its ownership of the property based on the 1977 Cash Deed. The City’s petition contends: “When ^property has been formally dedicated, it vests title in the dedicated land to the public rather than merely a servitude. It cannot be lost by prescription of non-use, only an express revocation, so actual use of the road by the City or the public is immaterial.” This is a correct statement of the law. Professor Yianno-poulos, cited in the majority opinion, provides:

A landowner may make a formal dedication of a road by virtue of a written act, such as a deed of conveyance to the police jury of the parish. Frierson v. Police Jury of Caddo Parish, 160 La. 957, 107 So. 709 (1926). The written act may be in notarial form or under private signature. YIANNOPOULOS, PROPERTY § 95, at 204-205. A formal dedication transfers ownership of the property to the public unless it is expressly or impliedly retained. YIANNOPOU-LOS, PROPERTY § 95, at 208-209. If the landowner retains ownership of the property, the public acquires a servitude of public use.

Additionally, as Professor Yiannopoulos points out a formal acceptance by the public is not required:

According to the jurisprudence, a formal dedication is a donation to the public that may be made by a written juridical act. Accordingly, neither authentic form nor acceptance of the donation by the public is required. There must be, however, a clear intent to dedicate. YIANNOPOULOS, PROPERTY § 97, at 211-12.

Louisiana jurisprudence has recognized four modes of dedication: formal, statutory, implied, and tacit. Formal and statutory dedication conveys ownership while implied or tacit conveys only a servitude. Statutory dedication occurs when a landowner subdivides real estate in accordance with the requirements of La.R.S. 33:5051. In the case of a formal dedication, contained in a conveyance deed, as in the present case, acceptance by the public is not necessary. If the deed evidences a clear intent to dedicate, ownership is conveyed. Schmit v. St. Bernard Parish Police Jury, 504 So.2d 619 (La.App. 4 Cir. 1987).

As stated in Anderson v. Police Jury of the Parish of East Feliciana, 452 So.2d 730 (La.App. 1 Cir.1984):

IsAfter extensive review of the jurisprudence and legal commentary on the subject [See, in particular, Comment, The Third Dimension of Dedication in Louisiana, 30 La.L.Rev. 583 (1970)] we find that there are properly three distinct categories of dedication:
(1) statutory, which is accomplished when La.R.S. 33:5051 is substantially complied with. It conveys ownership to the public. Parker, 183 So. at 240.
(2) formal non-statutory, which is created whenever there exists some formal, express act by the owner which clearly shows an intent to dedicate. We hold that, absent a clear expression to the contrary, this dedication also conveys ownership and applies to the situation in which La.R.S. 33:5051 is not substantially complied with. See Banta, 200 So.2d at 112-3; cf. Parker, 183 So. at 240.
(3) informal, which would include those forms of dedication in which the law deems it necessary to infer an intent to dedicate from the owner’s actions. This creates only a servitude and acceptance by the public is necessary. [FN2]
FN2. We note that in A. Yiannopou-los, Property Secs. 61-66 in 2 Louisiana Civil Law Treatise 186-201 (2nd ed.1980), Professor Yiannopoulos divides informal dedication into two separate categories — tacit dedication and implied dedication — resulting in four classifications, instead of three.
Clearly, the dedication involved in this case falls into the second category. It is unnecessary for us, however, to classify the dedication as being one which transfers ownership or only a servitude since for our purposes it is necessary only to determine that the dedication is a formal dedication for us to establish the proper procedural framework. (Emphasis added.)

The language in the 1977 Cash Deed clearly evidences a formal dedication to the public. The language provides: “As a part of the consideration for this sale, Vendor and Vendee hereby dedicate ...” The use of the word “dedicate” is all that is required for us to find a formal dedication occurred and for ownership to transfer to the public. We need not infer an intent or examine whether the actions of the owner evidenced an intent to relinquish control or whether the property was used for a road. The law is clear, once a dedication is made to the public, unless the owner expressly | reserves ownership, title passes to the public. See also, St. Charles Parish School Bd. v. P & L Inv. Corp., 95-2571 (La.5/21/96), 674 So.2d 218. The majority opinion will create havoc with long established principles of property law.


source: Caselaw Access Project

author: LGAIDRY, J.

license: Public Domain

text:
    Senora ZENON, Individually and as Administratrix and Natural Tutrix of the Estate of Her Minor Child, Katrice Zenon, and Keita Jones, Individually and as Administratrix and Natural Tutrix of the Estate of Her Minor Children, Tyrielle Lane and Trase Lane v. LIBERTY MUTUAL FIRE AND CASUALTY INSURANCE COMPANY.
    No. 2003 CA 0971.
    Court of Appeal of Louisiana, First Circuit.
    April 2, 2004.
    Rehearing Denied May 19, 2004.

      Hollis Shepherd, New Orleans, Counsel for Plaintiff/Appellant Señora Zenon, et al.
    John F. Deas, Metairie, Counsel for Defendant/Appellee Liberty Mutual Fire and Casualty Insurance Company.
    Before: FOIL, FITZSIMMONS, and GAIDRY, JJ.
   LGAIDRY, J.

Plaintiff appeals a trial court judgment dismissing her petition for nullity with prejudice after granting defendant’s exceptions of no cause of action and insufficiency of service of process. For the following reasons, we reverse the trial court’s judgment insofar as it granted the exception of no cause of action and amend the judgment to grant Liberty Mutual’s motion for summary judgment.

FACTS AND PROCEDURAL HISTORY

Plaintiffs, Señora Zenon, individually and as administratrix and natural tutrix of the estate of her minor child, Katrice Zen-on, and Keita Jones, individually and as administratrix and natural tutrix of the estate of her minor children, Tyrielle Lane and Trase Lane, filed a petition for damages against several defendants, including the defendant in the instant suit, Liberty Mutual Fire and Casualty Insurance Company, following an automobile accident.

Liberty Mutual first propounded discovery to plaintiffs on February 23, 2000. The discovery was again propounded on September 6, 2000. On October 6, 2000, Liberty Mutual filed a motion to compel plaintiffs’ response to discovery, and a hearing was set for November 7, 2000. The plaintiffs and Liberty Mutual entered into a consent judgment, which was signed by the trial judge and the attorneys for the parties on November 13, 2000, wherein the parties agreed that plaintiffs would provide the requested discovery to Liberty Mutual by November 21, 2000, in failure of which Liberty Mutual could file a motion to dismiss.

On March 27, 2001, Liberty Mutual filed a Motion for Dismissal and/or Contempt, asking the court to dismiss plaintiffs’ claims against Liberty Mutual with prejudice for failure to comply with the November 13, 1 o2000 Consent Judgment. This motion contains a Certificate of Service, dated March 23, 2001 and signed by John F. Deas, attorney for Liberty Mutual, which stated:

I hereby certify that a copy of the foregoing pleading has been served upon counsel for all parties by mailing same to each properly addressed and postage prepaid on this 23rd day of March, 2001.

The trial court set Liberty Mutual’s Motion for Dismissal for hearing on May 15, 2001. Service was requested on plaintiffs through their attorney of record, Hollis Shepherd, at his office. The sheriffs return shows that service was made on Hollis Shepherd on April 4, 2001, through his secretary, “S. Vincent.”

A hearing was held on the Motion for Dismissal on May 15, 2001, after which the .trial court granted the motion, dismissing plaintiffs’ claims against Liberty Mutual with prejudice. The Notice of Judgment filed in the record shows that the notice and a certified copy of the judgment was mailed to Hollis Shepherd on May 24, 2001.

Plaintiffs did not file a motion for new trial or an appeal within the applicable delays. Instead, they filed a Petition to Nullify Judgment on May 20, 2002, more than a year after the judgment was rendered. In this petition, the plaintiffs claim that the judgment of dismissal should be annulled because they did not receive notice of the hearing on the Motion for Dismissal as required by La. C.C.P. arts. 1235 and 1314.

Liberty Mutual filed an Exception of Insufficiency of Service of Process and Exception of No Right and/or No Cause of Action, and Motion for Summary Judgment. After a hearing, the trial court granted the exception of no cause of action and granted the exception of insufficiency of service of process. Since the trial court granted the exception of no cause of |4action, the motion for summary judgment was moot. In an October 22, 2002 judgment, the trial court dismissed the plaintiffs’ Petition to Nullify Judgment with prejudice.

The plaintiffs appeal this October 22, 2002 judgment, arguing that the trial court erred in granting the exception of no cause of action and dismissing their suit with prejudice.

DISCUSSION

Louisiana Code of Civil Procedure article 2002 provides that a final judgment shall be annulled if it is rendered against a defendant who has not been served with process as required by law. This article has been interpreted to also provide for a nullity action by a defendant-in-rule, as plaintiffs were in this case. See Tanner v. Travelers, 389 So.2d 721 (La.App. 4 Cir. 1980).

An action to annul a judgment under La. C.C.P. art. 2002 may be brought at any time, except that a defendant who voluntarily acquiesced in the judgment, or who was present in the parish at the time of its execution and did not attempt to enjoin its enforcement, may not annul the judgment. La. C.C.P. art. 2003.

In reviewing trial court’s ruling sustaining exception of no cause of action, the reviewing court should subject the case to a de novo review as the exception raises a question of law and the trial court’s decision is based only on sufficiency of the petition. City of New Orleans v. Board of Commissioners of Orleans Levee District, 93-0690 (La.7/5/94), 640 So.2d 237. The trial court granted the exception of no cause of action because it found that after receiving notice of the Judgment of Dismissal, plaintiffs acquiesced in the judgment and it became a final judgment.

| fiWe do not believe that this is a proper interpretation of article 2003. There was no “execution” of the judgment in this case. The last thing that occurred was the mailing of the notice of the Judgment of Dismissal. We simply do not feel that this was “execution of the judgment” in which plaintiffs could have acquiesced. Therefore, Liberty Mutual’s exception of no cause of action should not have been granted on this ground.

Having found that the trial court erred in granting the exception of no cause of action and having a complete record before us, we will now address Liberty Mutual’s motion for summary judgment.

A motion for summary judgment is a procedural device used to avoid a fullscale trial when there is no genuine factual dispute. Sanders v. Ashland Oil, Inc., 96-1751, p. 5 (La.App. 1 Cir. 6/20/97), 696 So.2d 1031, 1034, writ denied, 97-1911 (La.10/31/97), 703 So.2d 29. Summary judgment is properly granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact, and that mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). Summary judgment is favored and “is designed to secure the just, speedy, and inexpensive determination of every action.” La. C.C.P. art. 966(A)(2).

The initial burden of proof remains with the mover and is not shifted to the non-moving party until the mover has properly supported the motion and carried the initial burden of proof. Only then must the non-moving party “submit evidence showing the existence of specific facts establishing a genuine issue of material fact.” See Scott v. McDaniel, 96-1509, p. 5 (La.App. 1 Cir. 5/9/97), 694 So.2d 1189, 1191-1192, writ denied, 97-1551 (La.9/26/97), 701 So.2d 991. If the non-moving party fails to do so, there is no |figenuine issue of material fact and summary judgment should be granted. La. C.C.P. arts. 966 and 967.

In determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria that govern the trial court’s determination of whether summary judgment is appropriate. Sanders, 96-1751 at 7, 696 So.2d at 1035. Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to this case. Walker v. Phi Beta Sigma Fraternity (RHO Chapter), 96-2345, p. 6 (La.App. 1 Cir. 12/29/97), 706 So.2d 525, 528.

The return of an officer on judicial process is presumed to be correct and should not be overthrown except by clear and convincing evidence. While no valid judgment can be rendered without a legal citation, in order that uncertainty and confusion might be avoided as to the validity of judgments, great reliance must be placed on the returns made by sworn officers who are entrusted with the service of process. For this reason, a rule has developed which requires more than the uncorroborated evidence of a single witness to overcome the presumption attaching to the correctness of the return on process made by a sworn officer. Smith v. Crescent Chevrolet, 1 So.2d 421 (La.App. 1 Cir. 1941).

Plaintiffs admit in their petition that the sheriffs return on service showed that the rule had been served upon Secretary S. Vincent. Plaintiffs’ attorney argued in his memorandum in opposition to Liberty Mutual’s motion for summary judgment that he never had a secretary or any other employee named S. Vincent or anything similar to that. However, there were no affidavits introduced to that effect, nor was there any testimony at the hearing, which plaintiffs’ attorney did not even attend. Furthermore,^^plaintiffs’ attorney’s uncorroborated testimony that he did not know a “S. Vincent,” had it been in evidence, would not have been sufficient under the law to overcome the presumption of correctness of the sheriffs return. Thus, summary judgment is appropriate in this case.

DECREE

For the above reasons, the judgment of the trial court is reversed to the extent that it granted Liberty Mutual’s exception of no cause of action. The judgment is also amended to grant Liberty Mutual’s motion for summary judgment for the reasons stated above.

REVERSED IN PART AND AMENDED.

FITZSIMMONS, J., concurs in the result.


author: UWHIPPLE, J.

text:
    COSMAR COMPANY v. Ralph SLAUGHTER, Secretary of the Department of Revenue and Taxation (Cynthia Bridges was Substituted as Defendant in Place of Ralph Slaughter).
    No. 2003 CA 1310.
    Court of Appeal of Louisiana, First Circuit.
    April 2, 2004.
    Rehearing Denied May 19, 2004.

      David R. Cassidy, David R. Kelly, Baton Rouge, Counsel for Plaintiff/Appellant, Cosmar Company.
    Geneva Landrum, Frank E. Bruscato, Jr., Lance C. Joseph, Kanika R. Tubbs, Baton Rouge, Counsel for Defendant/Ap-pellee, State of Louisiana, Department of Revenue.
    Before: FOIL, WHIPPLE, and KUHN, JJ.
   UWHIPPLE, J.

In this tax assessment case, plaintiff, Cosmar Company, appeals from a judgment of the trial court abating penalties and ordering a partial refund of taxes plaintiff paid under protest to defendant, the Louisiana Department of Revenue and Taxation. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On October 19, 1994, the Department of Revenue and Taxation for the State of Louisiana (“the Department”) issued a proposed assessment to Cosmar Company Joint Venture (“Cosmar”) for certain sales taxes. In response, Cosmar filed a protest with the Audit Review Division of the Department disputing that it owed $86,086.88, consisting of $49,989.45 in taxes, $18,373.51 in interest, and $17,823.92 in penalties for the audit period involved, ie., January of 1991 to October of 1993.

In its protest, Cosmar challenged the Department’s finding that Cosmar’s purchases of the chemicals, Inhibitor 85, Ma-roxal, and Naugard, collectively identified as “DNPC,” were not exempt from taxation as boiler fuels pursuant to LSA-R.S. 47:305 D(l)(h). Cosmar argued that in addition to use as an inhibitor, the DNPC had also been used to heat a boiler. Therefore, these chemical purchases were exempt from taxation pursuant to the provisions of LSA-R.S. 47:305 D(l)(h), which provides that “all energy sources when used for boiler fuels” are exempt from sales and use tax. Cosmar further argued that because the law was clear and unambiguous, it should be applied as written in favor of granting an exemption to Cosmar.

laThe Department rejected Cosmar’s position and denied Cosmar an administrative hearing on the matter. By letter dated February 24, 1995, the Department explained that it “considers the inhibitor, DNPC, as a processing ehemical[,] which is taxable at 4%.” The Department further advised Cosmar that it would proceed with collection in accordance with the audit, pursuant to LSA-R.S. 47:1561. The Department explained that “the Chemicals Inhibitor 85, Maroxal and Nargaur are primarily for purposes other than a ‘boiler fuel’ by the Plaintiff in this matter and should not be exempt for purposes of Louisiana General Sales Tax under the provisions of LSA-R.S. 47:305(D)(l)(a).”

By letter dated May 15, 1995, Cosmar advised the Department that it was exercising its right to pay the contested amount under protest and would proceed pursuant to LSA-R.S. 47:1576, which sets forth the guidelines for remittance of taxes under protest. Thus, Cosmar enclosed a check for the amount of taxes in dispute with interest ($90,053.08) and requested that the funds be held in an escrow account. On June 9, 1995, Cosmar Company filed a “Petition for Refund” naming Ralph Slaughter, Secretary of the Department of Revenue and Taxation, as defendant.

The trial court heard the matter on March 21, 2003, and on April 15, 2003, rendered judgment in favor of Cosmar: (1) ordering a refund in the amount of 1.2% of the tax and interest paid under protest, consisting of $598.78 in tax and $268.08 in interest; and (2) abating 100% of the $17,823.92 in penalties paid under protest and ordering an additional refund of that amount, plus interest from the date of payment. The judgment denied and Ldismissed Cosmar’s claim against the Department for a refund of the remaining amount of tax ($49,299.67) and interest ($22,071.63).

Cosmar filed a motion for a suspensive appeal, challenging the portion of the judgment dismissing its claim for a refund of the $49,299.67 in taxes and $22,071.63 in interest. On appeal, Cosmar asserts the following assignments of error:

1. The Trial Court erred in apparently finding that because this case involved a retail sales tax, controlling precedent on the applicability of the boiler fuel exemption to byproducts, specifically B.P. Oil v. Plaquemines Parish Government, 642 So.2d 1230 (La.1994), was not applicable because B.P. Oil involved a use tax.
2. The Trial Court erred in failing to properly apply the boiler fuel exemption to this case to exempt all of Cosmar’s purchases of DNPC when the undisputed evidence showed that after its use as an inhibitor, all of the DNPC, whether in its original form or as chemically combined with styrene, was used as a boiler fuel.

DISCUSSION

In reviewing a trial court judgment, the appellate courts of the state of Louisiana are authorized by the constitution to review both law and facts. La. Const. Art. V, § 10(B); Bergeron v. Albert, 2002-1955, p. 7 (La.App. 1st Cir. 11/21/03), 861 So.2d 269, 274. A mixed question of fact and law should be accorded great deference by a reviewing court under the manifest error standard of review. Brasseaux v. Town of Mamou, 1999-1584, pp. 7-8 (La.1/19/00), 752 So.2d 815, 820-821.

An appellate court may not set aside a trial court’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong.” Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). In applying this test, a reviewing court must do more than simply review the record for some evidence that supports or controverts the trial court’s findings. Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). Furthermore, to reverse a factual determination, the appellate court |smust find that a reasonable factual basis for the finding of the trial court does not exist in the record and that the record establishes that the finding is clearly wrong or manifestly erroneous. Mart, 505 So.2d at 1127.

Louisiana law imposes a tax on all sales at retail. LSA-R.S. 47:302 A and 47:331 A. However, the “boiler fuel exemption” exempts from retail sales tax “all energy sources when used for boiler fuel except refinery gas.” See LSA-R.S. 47:305 D(l)(h). On appeal, Cosmar does not dispute that the transactions at issue involved the purchase of the chemicals, Inhibitor 85, Maroxal, and Naugard, identified collectively as DNPC. Cosmar instead argues that although the DNPC was primarily purchased for its use as an inhibitor, its subsequent use as a boiler fuel, whether in its original form or as chemically combined with styrene, renders these purchases non-taxable under the exemption. Cosmar claims in its brief on appeal that it is an undisputed fact that 100% of the DNPC that enters the process ultimately ends in the styrene tar, which fires the burner.

With regard to the trial court’s decision to limit the exemption to 1.2% of the total chemicals at issue, representing the amount of DNPC found by the court to be identifiable DNPC burned as boiler fuel, Cosmar argues in its supplemental brief that in addition to erring as a matter of law in failing to apply the law as written and refusing to grant the boiler fuel exemption to all of Cosmar’s purchases of DNPC, the trial court erred in its factual determination. In particular, Cosmar again argues that all of the DNPC, in one form or another, was used as a boiler fuel after its initial use as an inhibitor in the primary manufacturing process and, further, that the trial court (and the | (¡parties) erred as to the proper percentages remaining. Thus, the issue before us is whether, under the facts of this case, the trial court erred in its determination that only those identifiable portions of the chemicals used as boiler fuel were subject to the exemption, given their primary purpose and use in the manufacturing process.

In rejecting Cosmar’s claim, the trial court stated, as follows:

I don’t really think there’s any big dispute of facts in this case. While the parties may not agree with my interpretation, I don’t see any real difference between the testimony of Mr. [Mark] Gremillion and the testimony of Dr. [Frank] Groves as far as initially how the DNPC is used in the process and the ultimate composition of the styrene tar that is burned.... Mr. Gremillion testified that 1 and 1.2 percent of this tar is what’s considered identifiable DNPC or inhibitors. You can tell after its been recycled through the process ... 1 to 1.2 percent of the tar is recognizable DNPC or inhibitors, the remainder is what he classified as unknown components. It’s got components of the polymers, it’s got components of the inhibitors and it’s matched together. His testimony, [that] 100 percent of the inhibitors that go into the process end up in the tar is the same as Dr. Groves saying that all of the atoms contained in these inhibitors that went into the process end up in the tar. From a factual standpoint right now, I don’t think there’s a major dispute as to this process, what goes in and what the ultimate by-product, the styrene tar, consists of that is used, and I find that there’s no dispute between the parties that ultimately this styrene tar is what’s used as a boiler fuel, is the source of the fuel.
* * *
I’m of the opinion that the primary use of the DNPC was in the manufacturing process used ... as an inhibitor in an attempt to avoid ... and prevent the polymerization or hardening of the styrene; that the subsequent use of the DNPC as a fuel was, first of all, as testified to by both witnesses, not in the form, substance, either chemical or molecular, of the DNPC originally purchased and used in the manufacturing process. (Emphasis added.)

17Relying on the testimony of Mr. Grem-illion, the trial court specifically noted that:

At least 1 to 1.2 percent of identified unused inhibitors, and in this case the DNPC, was in the tar that was used as a fuel source. So for the purposes of the fuel source credit, I will give Cosmar the 1 to 1.2 percent of the DNCP used as a fuel source that is identified as such as an exemption.... I think the testimony of Dr. Groves and Mr. Gremillion are on all fours with regard to what happens during this process.... [T]he court is going to allow them an exemption of 1.2 percent of the total DNPC that was purchased and used in the manufacturing process. The request for the remainder of the exemption of the DNPC purchased and used by Cosmar is going to be denied.

After careful review, we find no error by the trial court in either its factual findings or its statutory interpretation, considering the testimony evidence properly of record and the applicable statutes and jurisprudence.

Patricia Anne Porter, an auditor for the Department, performed the audit of Cos-mar for the period from 1987 through 1989. At the time she performed the audit, she requested information on all chem-icáls purchased. The information she received concerning the DNPC was that it was used solely as a processing chemical. She further testified, however, that had she been informed that it was also used as a boiler fuel, she would have nonetheless considered it taxable because she was instructed to look to the principal use of the chemical to determine its taxability.

Dr. Frank R. Groves, Jr. testified on behalf of the Department as an expert witness in chemical engineering. Dr. Groves explained that in the manufacturing phase, the DNPC was used as an inhibitor added to the crude styrene in order to prevent polymerization from occurring in the styrene process. He explained that without the addition of DNPC, the styrene would spontaneously react with itself, a process called polymerization, which tends to “foul up” the equipment and can potentially cause a plant shutdown. He stated that the inhibitor used in this instance, ie., the DNPC, works by reacting with |sextremely reactive particles, called “styrene free radicals,” which start the polymerization process and appear spontaneously in the styrene. By reacting chemically with the styrene free radicals, the DNPC eliminates them, thus preventing polymerization from occurring.

Dr. Groves further explained that the chemical reaction between the DNPC and the polymer in the crude styrene forms a new chemical compound that differs from the original DNPC and consists of a different chemical composition from either DNPC or styrene. He described this compound as a “styrene tar.” Dr. Groves testified that this styrene tar was the material ultimately used as an energy source to provide heat in the boiler. Other than its use as a fuel, he considered it a waste product. He testified that the contents of the styrene tar burned as a fuel source constituted an entirely different material, involving various components that differ from the chemicals purchased by the taxpayer and put in at the beginning of the process to prevent polymerization.

Mark Gremillion, employed by Cosmar as a production manager at the time of the audit in question, also testified. He stated that his responsibilities included oversight of the operation of the styrene plant and selection of the type of inhibitors used therein, ranging from the input of raw materials through the firing of the boiler at the facility. Gremillion testified that his decision to use DNPC as an inhibitor was based in part on the fact that the styrene tar could be used as a fuel source. Grem-illion agreed that the input of these chemicals in the manufacturing phase prevents polymerization, but noted that DNPC ends up in the styrene tar. He testified that the inhibitors that are burned add energy to the boilers and that the DNPC purchased by Cosmar becomes “a part of an energy source that’s fired in the boiler.”

|9He further testified that “[w]hen you use the inhibitor to inhibit the polymerization, it breaks down and becomes part of the styrene tar ... you can’t measure it as DNPC, but it is part of the styrene tar ... it becomes other compounds.” He stated he did not have an analysis of the intermediate compounds, which composed the styrene tar. Notably, he testified that only 1 to 1.2 percent of the unused inhibitors contained in the tar is clearly identifiable as DNPC. According to Gremillion, the other 88 to 99 percent of the styrene tar is made up of polymers or unknown substances that contain the inhibitors as well as other substances from the tar.

The test set forth by the Supreme Court for determining whether an item is subject to sales/use tax is the “purpose” for which it was purchased. See Traigle v. P.P.G. Industries, Inc., 332 So.2d 777 (La.1976); Vulcan Foundry, Inc. v. McNamara, 414 So.2d 1193 (La.1981) (on rehearing). While we find it laudable that Cosmar was able to use the styrene tar (and the portion of the DNPC contained therein) to fire the boiler, the evidence overwhelmingly shows that the chemicals collectively identified as DNPC were purchased primarily for use as an inhibitor. And, as the Supreme Court has recognized, the proper inquiry is the purpose for which the DNPC was bought. See Vulcan Foundry, Inc., 414 So.2d at 1198.

In Vulcan Foundry, Inc., the Supreme Court granted rehearing to determine whether coke used by Vulcan in its manufacturing process was exempt from Louisiana sales/use tax. Vulcan Foundry, Inc., 414 So.2d at 1196. After reviewing the pertinent facts therein, the Court determined that the primary purpose for which the coke was bought was to heat and melt scrap iron, not to operate the boiler. Rejecting the claim for the exemption from taxes, the Court noted “[t]he legislature did not exempt coal (or its derivative, coke) when used for any purpose other than boiler fuel.” Vulcan Foundry, Inc., 414 So.2d at 1198. The Court accordingly concluded that “Vulcan failed to clearly, unequivocally and affirmatively establish that it was entitled to this exemption from sales/use tax.” Vulcan Foundry, Inc., 414 So.2d at 1198. (The Court then focused its discussion on the applicability of Vulcan’s purchase of coke to the reprocessing exclusion, which is not at issue herein.)

Despite this evidence that the DNPC was used as an inhibitor in the manufacturing process, and that only 1 to 1.2 percent of the total molecules that enter the boiling process could be identified as DNPC, Cosmar contends it is entitled to an exclusion nonetheless, citing BP Oil Company v. Plaquemines Parish Government, 93-1109 (La.9/6/94), 651 So.2d 1322 (on rehearing) and its discussion of Vulcan Foundry, Inc. We disagree.

At the outset, we note that the Court in BP Oil Company was faced with the determination of whether to apply a reprocessing exclusion, rather than the application of the boiler fuel exemption at issue herein. As noted therein, the reprocessing exclusion was designed to eliminate the tax on the sale of a material purchased for further processing into finished products and to place the tax on the ultimate consumer of the finished product processed from the raw material. BP Oil Company, 651 So.2d at 1330.

In BP Oil Company, the Supreme Court distinguished its holding in Vulcan Foundry, Inc. on the issue of the applicability of a reprocessing exclusion, and determined that a reprocessing exclusion was not applicable under the facts of the case, given that the two chemicals at issue were not being processed into any products for sale at retail. In making that | ^ 1 determination, the Supreme Court specifically recognized that the use made of the tangible personal property is paramount to the determination of its taxability, stating as follows:

The focus must be on the use of the personal property sought to be excluded from taxation, rather than on the raw material which produces the personal property as a by-product of the refining process. Although the crude oil was purchased for “further processing into articles of tangible personal property for sale at retail,” the use of the by-products of the processing is the event sought to be taxed in this case. (Emphasis added).

BP Oil Company, 651 So.2d at 1330, n. 10.

Cosmar argues that the rule set forth by the Supreme Court in BP Oil Company and other cases is “that the purpose for which a source of boiler fuel is purchased is irrelevant; rather it is the use of the energy supplied by that source which determines whether an item is exempt.” Cosmar argues that the Court’s holding in BP Oil Company mandates that:

1. For purposes of the boiler fuel exemption, it is not the purpose for which the energy source was purchased that matters; rather it is the ultimate use of the energy source as a boiler fuel which controls taxation; and
2. In order to qualify for an exemption or exclusion, it is not necessary that an item remain in its original state; and
3. The amount of the item used for the exempt purpose has no bearing on the amount of the tax deduction.

We find no merit to these assignments. The trial court distinguished BP Oil Company from the instant case by stating, “[t]he question I now find is this is not ... East Baton Rouge Parish trying to assess a use tax on this by-product, but the state assessing the retail sales — the retail tax on the purchase of DNPC.” The trial court specifically recognized that “the primary use of the DNPC was in the manufacturing process used as an inhibitor in an attempt to avoid ... and prevent the polymerization or hardening of the styrene” and “the subsequent use of the DNPC as a fuel was, first of all, as testified to by both 112witnesses, not in the form, substance, either chemical or molecular, of the DNPC originally purchased and used in the manufacturing process.”

Relying on the testimony of Dr. Groves, the trial court held:

[t]he DNPC at the time it’s in this styrene tar is different from the ... DNPC that went into the process chemically, in appearance, pumpability (sic), atom and molecular structure. It, in essence, has been combined with the polymers, as testified to by Mr. Gremillion, and forms a new chemical compound which is different from the DNPC. And I don’t think that, even as written, the exemption can be construed broad enough by this court to say that the use of this tar containing a minor identifiable percentage of DNPC constitutes a use of DNPC as a source of boiler fuel entitling them to the entire exemption.

In awarding Cosmar the credit for that portion of the chemicals purchased that it found was used as a fuel source, the trial court stated:

However, again trying to reconcile the language between Vulcan and BP, Mr. Gremillion testified that at least 1 to 1.2 percent of identified unused inhibitors, and in this case the DNPC, was in the tar that was used as a fuel source. So for the purposes of a fuel source credit, I will give Cosmar the 1 to 1.2 percent of the DNPC used as a fuel source that is identified as such as an exemption.

On review, we find the trial court correctly applied the exemption, limited to the 1.2 percent of the total chemical purchases at issue. It is well-settled that exemptions from taxation are strictly construed against the taxpayer claiming the benefit thereof and must be clearly, unequivocally, and affirmatively established by the taxpayer. Johnson v. New Orleans Charities Building Corporation, 2000-2772, p. 5 (La. App. 1st Cir.2/15/02), 812 So.2d 741, 744. Here, the trial court obviously relied on the expert opinion of Dr. Groves that the newly composed styrene tar, as opposed to DNPC, was ultimately the energy source used to provide heat in the boiler. In light of the testimony and evidence herein, and the manifest error standard that we are bound to apply to the trial court’s factual findings herein, we are unable to say that the trial court was manifestly erroneous in its factual findings. Moreover, we find no error |13by the trial court in its refusal to grant the boiler fuel exemption from sales tax for the total amounts of DNPC purchased.

After a thorough review of the record, we find that there is a reasonable basis to support the finding of the trial court that the styrene tar constituted the actual fuel source. Further, we find no error in the trial court’s application of the statutory exemption to only those amounts or percentages of the total chemicals purchased that were clearly established by the evidence of record as being present in the styrene tar and actually used as boiler fuel.

These assignments lack merit.

CONCLUSION

Based on the above and foregoing reasons, the April 15, 2003 judgment of the trial court is affirmed. Costs in the amount of $1,165.29 are assessed against the appellant, Cosmar Company.

AFFIRMED.

      . According to the Department's brief, Cos-mar is the trade name for a joint venture involving Fina Corporation and General Electric Corporation, and owns and operates a chemical plant in Louisiana for the manufacture of styrene.

      . Louisiana Revised Statutes 47:305 D(l)(h) is cited by the parties as “the boiler fuel exemption.”

      . The record reflects that Cynthia Bridges, Secretary of the Department of Revenue, State of Louisiana, was subsequently substituted as defendant in place of Slaughter.

      . A tax exemption is a provision that exempts from tax a transaction, which would, in the absence of the exemption, otherwise be subject to tax. Kerr-McGee Corporation v. McNamara, 2000-0770, p. 10 (La.App. 1st Cir.6/22/01), 826 So.2d 1, 7.

      . Cosmar claims in its post-argument brief that its recent subsequent testing now shows the amount of recognizable DNPC to actually be 6.66% and that this percentage should be used as the exempt portion, or the matter should be remanded in the interest of justice. We decline to amend or remand on this basis. Any evidence or indication of the results of any subsequent testing is not part of this appellate record and, accordingly, is not properly before us for consideration in our review of this matter. We decline to consider the attachments to Cosmar’s post-argument brief insofar as they relate to matters outside the appellate record and the scope of our review.

      . The Supreme Court stated in BP Oil Company, "In Vucan Refineiy (sic), this court held that the reprocessing exclusion did not apply to coke which was bought primarily as a fuel for melting scrap iron in the manufacture of manhole covers, although a very small portion of the coke was incorporated in the final product and beneficially provided needed carbon to the product.” (Emphasis added). BP Oil Company, 651 So.2d at 1330, n. 10.


author: LGAIDRY, J. | [FITZSIMMONS, Judge,

text:
    Larry Donnell NICHOLS v. Burl CAIN, Richard Stalder, David Jones, James Arnold, David Bordelon and Gene Bordelon.
    No. 2003 CA 1169.
    Court of Appeal of Louisiana, First Circuit.
    April 2, 2004.
    Rehearing Denied May 19, 2004.

      Larry Nichols, Angola, Plaintiff/Appellant In Proper Person.
    John S. “Chip” Coulter, Baton Rouge, Counsel for Defendant/Appellees Burl Cain, Richard Stalder, et al.
    Before: FOIL, FITZSIMMONS, and GAIDRY, JJ.
   LGAIDRY, J.

In this case, plaintiff, an inmate in the custody of the Department of Public Safety and Corrections, appeals a trial court judgment dismissing his petition for judicial review. After reviewing the record, we stay these proceedings in accordance with La. R.S. 15:1186 until all accrued costs and fees have been paid.

FACTS AND PROCEDURAL HISTORY

Plaintiff, Larry Nichols, was convicted in a disciplinary board proceeding of being a threat to security. The charges stemmed from tips from two confidential informants that Nichols had created two knives while on work assignment. Nichols was sentenced to a transfer to maximum custody.

Nichols filed a “Petition for Judicial Review,” in which he claimed that his sentence to a transfer to maximum custody was unlawful and requested the following relief:

1. Direct defendants to pay plaintiff $10,000.00 compensatory damages;
2. Direct defendants to pay the plaintiff $20,000,00 in punitive damages;
3. Direct the defendants to pay the plaintiff the sum of $150.00 per day for each day plaintiff was/is unconstitutionally confined in extended lockdown pertinent to the unlawful charge of incident report for threat to security;
4. Order the defendants to pay all court costs in this instant case;
5. Direct defendant Burl Cain to transfer the plaintiff to Hunts Correctional Institution-Center or Washington Correctional Institution in hopes that plaintiff won’t suffer the retaliation repercussions by corrections officials at Louisiana State Prison;
6. Grant such other, further and different relief as it may appear that plaintiff is entitled or as this Honorable Court may deem appropriate and just.

Nichols later filed a Petition and/or Application for an Injunction or Restraining Order seeking to have the court bar defendants from retaliating ^against him and to improve the conditions of his confinement in extended lockdown.

The defendants filed a motion to strike Nichols’ claims seeking monetary relief since monetary damages are not available in the disciplinary appeal .process or in judicial review of a disciplinary board appeal.

After an August 12, 2002 hearing, the commissioner recommended that the district court grant the defendants’ motion to strike, dismiss Nichols’ request for injunc-tive relief without prejudice, and dismiss Nichols’ request for judicial review with prejudice at Nichols’ cost.

In a December 23, 2002 judgment, the district court granted defendants’ motion to strike, dismissing Nichols’ request for injunctive relief without prejudice, and dismissed Nichols’ request for judicial review with prejudice.

This appeal followed, and Nichols assigns the following trial court errors:

1. The district court erred in failing to find that Nichols’ “substantial, statutory, and constitutional rights” were violated when he was placed in lock-down.
2. The district court erred in failing to find that the defendants showed a “specific and deliberate conduct to violate clearly established statutory and constitutional rights.”
3. The district court erred in failing to find that all defendants were liable for the “wanton and unnecessary infliction of pain and suffering wrought on [Nichols] consequently to his unlawful confinement in lock-down.”
|44. The district court erred in failing to find that defendants are not entitled to qualified immunity in “this suit for monetary damages and injunc-tive relief via judicial review.”
5. The district court erred in failing to vacate or set aside the decision of the Department of Public Safety and Corrections and remand the matter back to the Department of Public Safety and Corrections for retrial.
6. The district court erred in failing to find that Nichols exhausted his available administrative remedies prior to filing suit in district court.

Prior to oral arguments in this matter, the defendants filed a “Motion to Enforce Automatic Stay” under La. R.S. 15:1186, which we referred to the merits.

DISCUSSION

Louisiana Revised Statutes 15:1177 provides that any offender who is aggrieved by an adverse decision by the Department of Public Safety and Corrections rendered pursuant to any administrative remedy procedures may seek judicial review of the decision in the 19th Judicial District Court. However, subsection (C) of this statute states that § 1177 shall not apply to delic-tual actions for injury or damages, however styled or captioned. Delictual actions for injury or damages shall be filed separately as original civil actions. La. R.S. 15:1177(C).

Nichols’ petition, although styled a “Petition for Judicial Review,” is actually a delictual action. The relief he seeks is not reversal of his disciplinary board conviction for being a threat to security and sentence to a transfer to maximum custody; rather, he seeks monetary damages for the rights violation he claims occurred when he was wrongfully convicted and sentenced.

| ^Nichols’ petition for injunctive relief, filed some time after his petition for judicial review, arose from an entirely different set of facts than those that were the subject of the judicial review. The request for an injunction related to acts which allegedly occurred during the pendency of this suit, including disciplinary action taken against him for allegedly tearing pages out of law books, and which Nichols claims were retaliatory in nature. He also seeks to have the conditions of his confinement in extended lockdown improved. The claims for which Nichols seeks injunctive relief are subject to the administrative remedies procedure, and Nichols must exhaust his administrative remedies prior to filing suit in district court.

Louisiana Revised Statutes 15:1186, regarding proceedings in forma pauperis, provides that an “order granting a prisoner’s request to proceed in forma pauperis automatically stays all proceedings, including any service of process, until all costs of court or fees due the clerk by the prisoner in this matter are paid.” La. R.S. 15:1186(2)(a). If at any time during the pendency of the action additional costs of court or fees due the clerk by the prisoner accrue and are unpaid, the action may be stayed by the court on its own motion or upon motion of the clerk or any other party until all such additional costs are paid. La. R.S. 15:1186(2)(b).

The only circumstances under which the action will not be stayed are when the court makes a written finding that:

1. the suit is a proceeding for judicial review brought pursuant to La. R.S. 15:1177;
2. the suit is a proceeding for post-conviction relief or habeas corpus proceeding challenging the fact or duration of confinement in prison; or
R3. the inmate is in imminent danger of serious physical injury, the suit solely seeks injunctive relief to avoid the danger, and relief is available in the suit which will avert the danger.

None of these circumstances are present in this case. Although styled a “Petition for Judicial Review,” we have previously noted that this is in fact a delictual action, which does not fall under La. R.S. 15:1177. Additionally, though Nichols seeks injunc-tive relief in this action, there is no indication that he is in imminent danger of serious bodily injury, and this suit does not solely seek injunctive relief to avoid this danger. Finally, this is not a proceeding for post-conviction relief or habeas corpus challenging the fact or duration of confinement in prison. Thus, a stay of these proceedings is appropriate under La. R.S. 15:1186.

DECREE

For the above reasons, we remand these proceedings to the trial court with instruction to order a stay in accordance with La. R.S. 15:1186 until all costs and fees owed the trial court by Nichols are paid. Costs of this appeal are assessed to plaintiff, Larry Nichols.

REMANDED WITH INSTRUCTIONS.

FITZSIMMONS, J., dissents in part and assigns reasons.

| [FITZSIMMONS, Judge,

dissenting in part with reasons.

I respectfully dissent, in part, from the portion of the majority decision that characterizes the entirety of Mr. Nichols’ claims as delictual actions that should be stayed pursuant to La. R.S. 15:1186. In addition to seeking monetary damages for an allegedly wrongful conviction and sentencing, Mr. Nichols claims on appeal that:

1) he should be granted a transfer to Hunts Correctional Institution-Center or Washington Correctional Institution to avoid repercussions by corrections officials;

2) the court erred in finding that no constitutional rights were violated when he was placed in lockdown as a threat to security; and

3) false information was provided by the inmate-informants which should result in the setting aside of the decision of the Department of Public Safety and Corrections and the district court.

With respect to the- above noted claims, the exclusionary provision contained in La. R.S. 15:1177 A would not be apposite. Thus, a stay of the court’s actions for payment of fees is not procedurally viable. From that portion of the decision, I dissent. In all other respects, and specifically with regard to the monetary claims submitted by Mr. Nichols, I agree with the decision to stay the court proceedings.


author: h MICHAEL E. KIRBY, Judge.

text:
    Mary NAPOLEON v. ABC INSURANCE COMPANY, Truckers Express, Inc., and Robert Gordon.
    No. 2003-CA-1602.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 7, 2004.
    Rehearing Denied May 18, 2004.

      Iris A. Tate, Williams, Tate & Williams, New Orleans, LA, for Plaintiff/Appellant.
    Christopher J. Aubert, Tracy E. Gold, Aubert & Christensen, Covington, LA, for Defendants/Appellees (Truckers Express, Inc. and Nobel Insurance Company).
    (Court composed of Judge CHARLES R. JONES, Judge PATRICIA RIVET MURRAY, Judge MICHAEL E. KIRBY).
   h MICHAEL E. KIRBY, Judge.

Plaintiff, Mary Napoleon, appeals the granting of a summary judgment on the issue of liability in favor of defendants. On de novo review, we reverse and remand based upon Sections 154-2 and 154-923 of the New Orleans Code and La. C.C. art. 2323.

STATEMENT OF THE FACTS

On May 5, 1996, plaintiff was driving her 1994 Pontiac Grand Am in a southerly direction on Downman Road in New Orleans, in the right lane, when at approximately 4:45 a.m., she alleges an unidentified automobile entered her right hand lane of travel, struck her vehicle, and caused her to veer off of Downman Road. Plaintiff drove off of the road and collided with the rear of the cab of a parked 1992 Freightliner truck.

Police Officer Thaddeus Petit (“Petit”) responded to the scene of the accident, spoke with plaintiff, and completed an accident report. The Freightliner |¡>truck struck by plaintiff was the 10-wheel cab portion of the vehicle, with no trailer attached, and was parked off of the roadway.

The Freightliner vehicle was leased to Truckers Express, and was insured by Nobel Insurance, the defendants. Mr. Robert Gordon, an employee of Truckers Express, had parked the vehicle.

As a result of this collision, the plaintiff sustained a compound fracture of her right leg, which led to surgery.

Plaintiff contends that this accident was caused by the fault of defendants’ driver parking his truck where he did. Plaintiff alleges in her Petition that the driver created a public safety hazard by parking the truck near the side of the road.

The defendants filed a motion for summary judgment which was originally heard on November 3, 2000. The defendants alleged in that motion that their vehicle was not illegally parked. Plaintiff argued that defendants had violated La. R.S. 32:296, which the trial court ruled did not apply to this road, and the New Orleans Code Section 154-923, which states that stopping or parking on a sidewalk is prohibited. That motion was denied based on an existence of genuine issues of material fact.

Subsequent to further discovery, the defendants filed a motion for partial summary judgment on the issue of liability. In it they argued that plaintiff had brought forth no evidence to meet her burden of proving that the defendants were the cause in fact of the accident; thus, defendants could not be liable for it.

| STATEMENT OF THE LAW

Summary judgments are reviewed de novo on appeal whereby the appellate court asks the same questions as does the trial court in determining whether summary judgment is appropriate, i.e., whether there is any genuine issue of material fact and whether the movant is entitled to judgment as a matter of law. Marcades v. Cleanerama, Inc., 2002-0357, p. 3 (La.App. 4 Cir. 9/25/02), 831 So.2d 288, 289.

The burden of proof in a motion for summary judgment is on the movant. However, if the movant will not bear the burden of proof at trial, then the movant’s burden only requires him to point out an absence of factual support for one or more essential elements. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his burden of proof at trial, there is no genuine issue of material fact. La. C.C.P. art. 966(C).

Plaintiff argues that defendants violated New Orleans Code Section 154-923 in the parking of the Freightliner. N.O.Code § 154-923, entitled “Places where stopping or parking is prohibited; no signs required” states:

(a) No person shall stop or park a vehicle or other conveyance, except when necessary to avoid conflict with other traffic or in compliance with the law or directions of a police officer or traffic control device, at any of the following places:
(1) On a sidewalk, except as otherwise permitted in this article;
[Emphasis added.]

Defendants submitted photographs and deposition testimony that the Freightliner was not parked on the “sidewalk” because the truck was parked on the grassy part of the area between the highway and the adjacent property and not on |4the paved area. Based upon this evidence the trial court granted the defendants motion for summary judgment. However, the term “sidewalk” is more broadly defined in the N.O.Code Section 154-2, states:

Sidewalk means that portion of a highway between the curblines, or the lateral lines of a highway and the adjacent property lines of a highway and the adjacent property lines, intended for the use of pedestrians.

We have reviewed the photographs in the record de novo, and according to the N.O.Code’s definition of “sidewalk,” defendants’ Freightliner was in violation of N.O.Code Section 154-923.

Alternatively, defendants argue that even if a parking violation occurred, they cannot be found liable because the stationing of their truck would not be a cause in fact of the accident. We do not agree with this interpretation of the law because La. C.C. art. 2323 states:

A. In any action for damages where a person suffers injury, death, or loss, the degree or percentage of fault of all persons causing or contributing to the injury, death or loss shall be determined, regardless of whether the person is a party to the action or a nonparty, and regardless of the person’s insolvency, ability to pay, immunity by statute, including but not limited to the provisions of R.S. 23:1032, or that the person’s identity is not known or reasonably ascertainable. If a person suffers injury, death, or loss as the result partly of his own negligence and partly as a result of the fault of another person or persons, the amount of damages recoverable shall be reduced in proportion to the degree or percentage of negligence attributable to the person suffering the injury, death, or loss. [Emphasis added.]

We find the plaintiff has satisfied her burden of proof as articulated in La. C.C.P. art. 966(C), because she has noted a legal cause which may have contributed to her injury. Our review of the record shows that a genuine issue of material fact exists as to whether or not the illegal stationing of the truck | ¡^contributed to the injury of the plaintiff. Therefore, it was not proper to grant defendants’ motion for summary judgment.

For the aforementioned reasons, we reverse the granting of summary judgment and remand for further proceedings in accord with this opinion.

REVERSED AND REMANDED.