author: | .MCCLENDON, J. | PETTIGREW, J.,

text:
    DENHAM SPRINGS ECONOMIC DEVELOPMENT DISTRICT v. ALL TAXPAYERS, PROPERTY OWNERS AND CITIZENS OF THE DENHAM SPRINGS ECONOMIC DEVELOPMENT DISTRICT, and Nonresidents Owning Property or Subject to Taxation Therein, and All Other Persons Interested in or Affected in Any Way By the Issuance of Not to Exceed $50,000,000 Denham Springs Economic Development District Sales Tax Increment Bonds (Bass Pro Shops Project) in One or More Series, the Means Provided for the Payment and Security Thereof and Related Matters.
    No. 2004 CA 1013.
    Court of Appeal of Louisiana, First Circuit.
    June 4, 2004.
    Rehearing Denied June 21, 2004.
    Writ Granted Sept. 24, 2004.

      Fred L. Chevalier, Michael C. Hebert, James C. Percy, David M. Kerth, Baton Rouge, Counsel for Plaintiff/Appellee Den-ham Springs Economic Development District.
    Robert S. Angelico, Cheryl M. Korniek, K Todd Wallace, New Orleans, Counsel for Defendant/Appellant A. Ponder Jones.
    Robert R. Rainer, Baton Rouge, Counsel for Defendant/Appellee Livingston Parish School Board.
    Jay J. Harris, Denham Springs, Counsel for Intervenor/Appellee City of Denham Springs.
    Before: CARTER, C.J., PETTIGREW, DOWNING, GAIDRY and McCLENDON, JJ.
   | .MCCLENDON, J.

This is an appeal by an opponent to a proceeding validating a bond issuance to fund an economic development project in Livingston Parish that would facilitate the location of a Bass Pro Shops retail outlet in the parish. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

The Denham Springs Economic Development District (“District”) was created by City Ordinance 03-33 and adopted by a special meeting of the City Council on December 9, 2003. The geographical location of the District is a 74.85 acre tract in the Parish of Livingston, City of Denham Springs, on land south of Interstate 12 and east of Range Avenue. The current proposal, referred to as the Bass Pro Project (“Project”), includes the purchase by the District of twenty-seven acres, construction of retail facilities, including a restaurant, related infrastructures and public improvements, and subsequent location therein of a Bass Pro Shops retail outlet. The Project is to be funded through the issuance of revenue bonds secured by the pledge of local government sales tax increments in accordance with La. R.S. 33:9038.1 et seq. After payment of the revenue bonds in full, ownership of the retail facility would be transferred to Bass Pro for a nominal fee.

In furtherance of this plan, a Cooperative Endeavor Agreement was drafted with the following parties participating: the District; the Parish of Livingston (“Parish”); the City of Denham Springs (“City”); the Law Enforcement District of the Parish of Livingston (“Law Enforcement”); the Livingston Parish School Board (“School Board”) (both as a tax recipient entity and as the tax collector for the Parish); Special Tax District No. 1 of the Parish of Livingston; the Denham Springs Economic Development Corporation; and the State of Louisiana through lathe Secretary of the Department of Revenue (“State”). The agreement provided for each party thereto to contribute sales tax increments toward funding the Project. The issuance of the bonds and the authority of the entities to enter into the Cooperative Endeavor Agreement received approval not only on the local level, by each participating local entities’ governing body, but also thereafter by the State Bond Commission, the Louisiana Department of Economic Development, the Capitol Region Planning Commission, and the Joint Legislative Committee on the Budget.

On March 25, 2004, the District filed a “Motion for Judgment” in the 21st Judicial District Court. Therein, plaintiff alleged that it was created pursuant to La. R.S. 33:9038.2 as an economic development district authorized to collect the “sales tax increment[s],” used to secure the issuance of bonds for the financing of economic development projects. The District further alleged its intent to issue bonds amounting to approximately $50,000,000, to be used to fund the Project. Plaintiff further alleged that said bonds would be secured by the pledge of collected sales tax increments by the participating tax recipient entities. As such, the District alleged that it had standing to seek validation of the subject bond issuance pursuant to the “Bond Validation Act,” La. R.S. 13:5121-5130.

On April 8, 2004, A. Ponder Jones filed an answer, exceptions, and defenses to the suit, alleging himself to be a taxpayer, property owner, and resident of Livingston Parish and contending the proposed bond issuance was illegal for a number of reasons.

Also on April 8, 2004, the School Board filed an answer requesting the district court rule on whether the School Board could pledge sales and use tax revenues for the Project in light of La. Const. Art. VII, § 14 and whether the tax | ¿increment financing statute (“TIF”) authorizes participation of school boards in “TIF” financing where school board revenues are “expressly dedicated to specific purposes.”

On April 22, 2004, a hearing was held in the district court on the issues presented in the bond validation proceeding. Following the hearing, the district court rendered judgment declaring legal and valid: the bonds; the actions and proceedings taken and contemplated by the District in connection with the bond issuance; the Act and its authorization of the Agreement; the participation of the entities to the Agreements; the contemplated transaction granting an option to Bass Pro to purchase the Project for a nominal consideration; the purchase and contemplated lease of the twenty-seven acre tract; and, the means provided for payment of the bonds, including the pledge of sales tax revenues, lease and mortgage of the land. The district court further declared in its judgment that all legal requirements concerning publication, notice, and receipt of the motion for judgment had been met. The district court also decreed the conclusiveness of the judgment in accordance with the Bond Validation Act, and that the judgment constituted a permanent injunction against further proceedings on the issues decided. The judgment was signed April 26, 2004. This appeal by Mr. Jones followed.

On appeal, Mr. Jones makes the following assignment of errors:

(1) The trial court erred in rendering judgment validating the Bonds because the Bonds are to be secured by a Tax Increment Financing (“TIF”) scheme that uses sales tax funds specifically dedicated by the voters to other uses.
(2) The trial court erred in approving an alternative financing structure for the Bonds when that financing structure had not been finalized and thereafter was rejected by the Livingston Parish School Board.
(3) The trial court erred in rendering judgment approving the. Bonds secured by a proposed TIF scheme that amounts to a loan, | spledge, or donation of funds belonging to the state or a political subdivision, in violation of La. Const. Art. VII, § 14(A).

DISCUSSION

Because this appeal is taken pursuant to the Bond Validation Act, La. R.S. 13:5121-5130, it has been assigned expedited status. In any action affecting the validity of governmental bonds, the provisions of La. R.S. 13:5121 through 13:5130 “supercede all other acts and statutes on the subject.” La. R.S. 13:5122.

In general, review under the Bond Validation Act is restricted by La. R.S. 13:5130, which provides: “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.” The arguments brought by Mr. Jones on appeal are directed toward allegedly “substantial defects.” Mr. Jones does not challenge the constitutionality of the TIF law, La. R.S. 33:9038.1-9038.10, but rather contends that its application to the particular project under consideration herein violates certain constitutional and statutory provisions, and that the alternative plan was not approved by all participating entities.

Tax Increment Financing Law La. R.S. 38:9038.1-9038.10

The tax increment financing act under which the District is proceeding in this case, La. R.S. 33:9038.1-9038.10, authorizes any “local governmental subdivision” or “tax recipient entity” to participate in tax increment financing of economic development projects. With respect to the sales tax increment financing involved in the instant case, La. R.S. 33:9038.4(A)(1) authorizes local government | fito issue revenue bonds to fund economic development projects, of the type described in La. R.S. 33:9038.4(M) and 33:9038.6, which may be payable from a pledge and dedication of up to the full amount of “sales tax increments.” A “sales tax increment” is defined by La. R.S. 33:9038.4(A)(2) as that “portion of the designated sales tax ... collected each year ... which exceeds the designated sales tax revenues ... that were collected in the year immediately pri- or to the year in which the district was established.” Thus, where a district is created in an area where there are no existing businesses generating sales tax revenue, the “sales tax increment” equals all sales tax revenue generated after creation of the district. However, in instances where an economic development district is created that encompasses existing businesses, the sales tax revenue existing, at the time the district is created, falls outside the definition of a “sales tax increment” and cannot be pledged to fund a bond issuance. Therefore, only tax revenue generated within the geographical confines of the economic development district, over and above existing tax revenue, can be pledged under La. R.S. 33:9038.4.

Upon passing a resolution to employ the procedure set forth in this tax increment financing law, a local governmental entity must publish notice in the official journal of the local governmental subdivision and a public hearing must be held. La. R.S. 33:9038.4(A)(3). After establishment of an economic development district, the local governmental subdivision and “each participating tax recipient entity” must designate the local sales taxes that are to be used to determine the sales tax increments, a baseline collection rate is certified, and that certification is published in the local official journal. La. R.S. 33:9038.4(0). Subject to the exceptions contained in La. R.S. 33:9038.4(A)(5), “all incremental increases in sales taxes” may be pledged for an economic development project. Further, this act declares that the powers and rights conferred therein are in addition to any other powers and rights conferred by any other general or special law, and that 17“[t]he provisions of this Section shall be liberally construed for the accomplishment of its purposes.” La. R.S. 33:9038.4(J) (emphasis added).

Loan, Pledge, or Donation of Funds Belonging to the State or a Political Subdivision, in Violation of La. Const. Art. VII, § U(A) (Assignment of Error No. 3)

In this assignment of error, Mr. Jones asserts that the trial court erred in rendering judgment approving the bonds secured by a proposed financing plan that amounts to a loan, pledge, or donation of funds belonging to the state or a political subdivision, in violation of La. Const. Art. VII, § 14(A). Mr. Jones argues that the use of the political entities’ sales tax increments to fund the development of a retail facility for use by a private business and the subsequent transfer of Project property for a “nominal fee” to a private entity, violate Article VII, § 14(A).

Article 14(A) provides, in pertinent part: “Except as otherwise provided by this constitution, the funds, credit, property, or things of value of the state or of any political subdivision shall not be loaned, pledged, or donated to or for any person, association, or corporation, public or private.” (Emphasis added.) However, this single paragraph, relied on by appellant, cannot be viewed in isolation; the remaining paragraphs of the Article are also pertinent to this issue. Paragraph (B)(3) provides that nothing in Section 14 shall prevent “the pledge of public funds, credit, property, or things of value for public purposes with respect to the issuance of bonds or other evidences of indebtedness to meet public obligations as provided by law.” Further, Paragraph (C) specifically addresses “Cooperative Endeavors” and states: “For a public purpose, the state and its political subdivisions or political corporations may engage in cooperative endeavors with each other, with the United States or its agencies, or with any public or private | «association, corporation, or individual.”

Further, La. Const. Art. VI, §§ 19 and 20 are pertinent to this discussion, and provide as follows:

§ 19. Special Districts; Creation

Section 19. Subject to and not inconsistent with this constitution, the legislature by general law or by local or special law may create or authorize the creation of special districts, boards, agencies, commissions, and authorities of every type, define their powers, and grant to the special districts, boards, agencies, commissions, and authorities so created such rights, powers, and authorities at it deems proper, including, but not limited to, the power of taxation and the power to incur debt and issue bonds.

§ 20. Intergovernmental Cooperation

Section 20. Except as otherwise provided by law, a political subdivision may exercise and perform any authorized power and function, including financing, jointly or in cooperation with one or more political subdivisions, either within or without the state, or with the United States or its agencies. [Emphasis added.]

When La. Const. Art. VII, § 14, paragraph (A), is read in conjunction with paragraphs (B) and (C) of that constitutional provision, and along with La. Const. Art. VI, §§ 19 and 20, it is clear that the redactors of the Constitution expressly excepted from the prohibition against things of value owned by the state being “loaned, pledged, or donated,” the pledge and/or transfer of governmental property in conjunction with bond issuances.

Arguments such as the one made by appellant in this assignment of error have previously been rejected by the courts of this state. See Adams Industries, Inc. v. City of Monroe, 385 So.2d 896, 901 (La.App. 2 Cir.), unit refused, 393 So.2d 736 (La.1980), citing, Hegeman Farms Corp. v. Baldwin, 293 U.S. 163, 55 S.Ct. 7, 79 L.Ed. 259 (1934); Miller v. Police Jury of Washington Parish, 226 La. 8, 74 So.2d 394 (1954); Farlouis v. LaRock, 315 So.2d 50 (La.App. 1 Cir.1975).

The fact that the Project herein considered benefits private entities, either by disbursement of revenue bond funds to procure facilities for the use of private businesses or by the subsequent transfer of property so procured to a private entity for a nominal price upon retirement of the revenue bonds, does not render the Project violative of La. Const. Art. VII, § 14. The full measure of consideration received by a governmental entity for the transfer of property encompasses other obligations undertaken by a private enterprise, including the economic advantages to a particular parish “by providing employment directly and indirectly, by producing additional tax revenues for the [p]arish, and the other governmental agencies, by attracting satellite and kindred industries to the [pjarish, and by stimulating many collateral benefits to present residents of the [pjarish who are engaged in the business of providing supplies and services.” Hebert v. Police Jury of West Baton Rouge Parish, 200 So.2d 877, 893 (La.App. 1 Cir.), writ refused, 250 La. 1032, 201 So.2d 520 (1967). Beyond question the real consideration to the parish, in such a case, is the inducement of the company to locate an economic enterprise in the parish. Id. Thus, the value received by a governmental entity in exchange for the transfer of property, acquired through an economic development project, to a private concern, is not ascertained merely by reference to the stated price for the “sale,” but rather consideration for the transfer includes the value of the many other benefits associated with the enhanced economic resources of the governmental entity.

| ^Testimony introduced at the hearing held in the instant case revealed the extent to which this Project would economically benefit Livingston Parish. Dr. James A. Richardson, a Professor of Economics at LSU, who was accepted as an expert in Economic Statistical Analysis, particularly Economic Impact Studies, testified that Livingston Parish is considered a relatively poor parish, with its residents spending less in retail than other parishes, but also having less retail establishments per person than the state average and surrounding parishes. Dr. Richardson explained that the 50 million dollar construction project would create hundreds of jobs in the parish, not only in the construction field, but also in service industries such as food and gas sales. Although the construction phase of the project would end within a few years, Dr. Richardson estimated that the first year of operation of the Bass Pro Shops retail outlet would produce 54 to 62 million dollars of new spending in Livingston Parish. Dr. Richardson projected that within a few years approximately 75 to 110 million dollars of new sales revenue would be coming into the parish on a yearly basis, along with the creation of some 500 to 700 new jobs in the parish.

With respect to sales tax, Dr. Richardson testified that in Livingston Parish, the following percentages are collected: 1 percent by the Parish; Ph percent by the City; percent by Law Enforcement; and 2% percent by the School Board. Dr. Richardson testified that within the planned District, in which no sales tax is currently generated, the parish entities have pledged 72.7 percent of the new sales tax revenue to be generated by the Project, and will retain 27.3 percent of new taxes within the District. Dr. Richardson concluded that each of these entities will be a net beneficiary even after payment of pledged tax revenues.

In the instant case, the District is comprised of undeveloped property that currently generates no sales tax revenue. Without the incentive plan offered by the state and local government entities to Bass Pro Shops to locate in Livingston|nParish, the company might decide against opening a retail center in the parish, and the District would continue to generate no sales tax revenue. If, however, by means of the proposed Cooperative Endeavor Agreement, the Project progresses and the District begins to generate the minimally projected yearly revenue of some 54 million dollars, the 9 \ percent sales tax charged by state and local government would result in 5.1 million dollars of new revenue to governmental entities that would otherwise not exist.

In enacting La. R.S. 33:9038.1 et seq., the legislature has determined that use of up to the full amount of tax increments generated by a development project for retirement of the bonds .issued to fund the project is a valid and appropriate use of these funds for the public purpose of stimulating economic growth in the state. We note that this statutory format specifically provides for the protection of the public’s fiscal interest by inclusion of the following safeguards: prohibiting bond issuance where existing sales tax supported debt of the local governmental | ^subdivision or tax recipient entity is or will be in default; requiring a determination that baseline revenue is sufficient to satisfy dedications and statutory charges; requiring a certification of baseline collection rates; and by-prohibiting the dedication or pledge of the baseline sales tax (i.e., the amount of sales tax collected prior to formation of an economic development district). See La. R.S. 33:9038.4(A)(4)-(5) and (C).

Consequently, we are unpersuaded by appellant’s assertion that the instant Project violates La. Const. Art. VII, § 14. Therefore, we find this assignment of error to be meritless.

Use of Sales Tax Funds Specifically Dedicated to Other Uses (Assignment of Error No. 1)

In this assignment of error, Mr. Jones asserts that the trial court erred in rendering judgment validating the bonds because the bonds are to be secured by tax increment financing that uses sales and use tax funds specifically dedicated by the voters to other uses. Mr. Jones argues that the sales tax increments contributed to the development project by some of the public entities are dedicated for a specific purpose and cannot be used for any other purpose.

Mr. Jones also asserts that the 1 percent sales tax collected by the Parish was specifically dedicated by a 2002 ordinance for the construction, maintenance, and improvements of roads and bridges in the parish, and the 2$ percent sales tax collected by the School Board was dedicated by the voters as follows: /£ percent to pay school board employee salaries and fund utilities, and 2 percent for the enrichment of school programs and construction, renovation, operation, and maintenance of the public schools.

Further, Mr. Jones cites statutory provisions requiring the dedication of sales taxes to a specific purpose as follows: La. R.S. 33:2711 authorizing up to 2% percent sales tax for municipalities and that ordinances imposing the tax specify, |13and requiring the tax be used for, the purpose for which it is imposed; La. R.S. 33:2721.6 authorizing up to 5 percent tax for parishes and school boards with proceeds dedicated for the purposes approved by the electorate; La. R.S. 33:2737 for an additional 1 percent for school boards to be used exclusively for teacher salaries and operating expenses of schools; La. R.S. 33:2737.44 and 33:2738.22 and 33:2738.24 for an additional percent for school boards to be dedicated and used exclusively for that purpose; La. R.S. 33:2740.7 creating the Livingston Parish Law Enforcement District and authorizing % percent sales tax for operations and maintenance of the parish prison and other law enforcement costs.

Thus, Mr. Jones contends the sales taxes collected by the Parish, the School Board, and the Sheriff can be used only for the purposes authorized, which do not include economic development. In contrast, Mr. Jones points out that City Ordinance No. 1038 dedicates the City’s percent sales tax for improvement to the City’s sewerage system, but states that remaining proceeds are to be used in the City’s general fund. Because the City Ordinance allows use of some sales tax proceeds in a general fund, Mr. Jones argues it is only this type of sales tax proceeds that can be pledged under the “TTF” financing law.

Mr. Jones argues that because some of the local government subdivisions have sales taxes that are appropriated only for purposes related to the specific function of the entity, tax proceeds cannot be dedicated by these entities for economic development.

Because each ordinance that imposes a tax must specify “the purpose or purposes for which [the] tax is imposed” and revenues must be used for that purpose pursuant to La. R.S. 33:2714, even revenues dedicated to a governmental subdivision’s general fund could be deemed restricted for use only for operation of that particular entity and unavailable for contribution toward economic development unless specifically authorized. Thus, adoption of appellant’s position 114would severely limit the types of entities that could participate in a tax increment financing project, contrary to what was obviously envisioned by the legislature in enacting such laws. It is specifically stated in La. R.S. 33:9038.4(A)(5) that “all incremental increases in sales taxes” may be pledged under the statute by “all participating tax recipient entities” subject to the following proviso:

[Pjrovided that such revenues may be used for such purpose, subject to dedication by other law or by proposition approved by electors voting in an election for such purpose called by the taxing authority levying the tax, unless such use is permitted and upon a prior determination by the local governmental subdivision or other taxing authority that the baseline revenue collection is sufficient to satisfy such dedications and other statutory charges, and provided that all tax recipient entities affected, other than the state of Louisiana, enter into an intergovernmental agreement with the issuer authorizing and dedicating the inclusion of such incremental increase in sales taxes.

Mr. Jones interprets this provision as applying to the various resolutions, ordinances, and statutes, authorizing the collection of sales tax by the participating tax recipient entities herein. We find that such an interpretation would render the sales tax collected by virtually every local governmental entity wholly dedicated, leaving no sales tax available to pledge toward TIF projects.

Where it is possible to do so, it is the duty of the courts in the interpretation of laws to adopt a construction of the provision in question which harmonizes and reconciles it with other provisions. The legislature is presumed to have enacted each such statute with deliberation and with full knowledge of all existing laws on the same subject. The meaning and intent of the statutory provision is to be determined by a consideration of the statute in its entirety together with all other laws on the same subject matter and a construction should be placed on the provision in question which is consistent with the express terms of the statute and with the obvious intent of the legislature in enacting it. Munden v. State, Div. of Admin., 2001-2326, pp. 4-5 (La.App. 1 Cir. 5/9/03), 849 So.2d 639, 642, writ denied, 2003-1532 (La.10/3/03), 855 So.2d 310. Thus, we must conclude that in | lsenacting La. R.S. 33:9038.1-9038.10, the legislature was mindful of other sales tax enactments and statutes requiring dedication to particular purposes and subsequent disposition of tax proceeds in accordance with those purposes.

Recognizing that pursuant to La. Const. Art. VII, § 1, the power of taxation is vested in the legislature, which acts with full knowledge of all laws on the subject, we find that in order to give the full effect intended in the enactment of La. R.S. 33:9038.1 et seq., we must liberally construe these provisions, so as not to limit participation in economic development projects authorized therein. We conclude that the legislature has carved out a special niche with respect to “sales tax increments,” allowing tax recipient entities to dedicate sales tax increments, or newly generated sales tax within the limited geographical confines of an economic development district, for the funding of economic development projects formulated in accordance with La. R.S. 33:9038.1 et seq., while maintaining safeguards to protect existing sales tax collections, which continue to be applied to their , dedicated purposes.

Accordingly, we interpret the limiting language found in La. R.S. 33:9038.4(A)(5) as applying solely to “sales tax increments,” and not to existing sales tax revenue in general. While existing sales tax revenue is dedicated to each entity, as appellant asserts by the resolutions, ordinances, and statutes cited, it is clear from a reading of La. R.S. 33:9038.1 et seq., the legislature intended for sales tax increments to be available for funding economic development, at each entities’ discretion, unless the “sales tax increment” itself is specifically dedicated to some other purpose. Appellant has cited no statutory or local government ordinance or resolution that dedicates the “sales tax increments” at issue herein to a purpose | ^other than economic development. Therefore, we do not find the limitation found in La. R.S. 33:9038.4(A)(5) excludes participation by the tax recipient entities in this bond issue.

Further, our review of the School Board’s dedication of sales tax increments reveals no basis for invalidating its participation in the Project. We conclude that the legislature in enacting La. R.S. 33:9038.1 et seq. envisioned that “tax recipient entities,” authorized to pledge tax increments to fund economic development projects authorized by that act, would include political subdivisions of a parish or municipality and specifically contemplated the inclusion of school boards within that term.

In those instances where it is necessary to examine the intent of the legislature, a court may take judicial notice of the journals of the houses of the state legislature, as well as records of legislative committee proceedings, where preserved, as they are a matter of public record. Louisiana Public Facilities Authority v. All Taxpayers, 2003-2738, pp. 10-11 (La.App. 1 Cir. 12/23/03), 868 So.2d 124, 131, unit denied, 2004-0213 (La.3/11/04), 869 So.2d 801, citing University Properties Corp. v. Fidelity Nat. Bank of Baton Rouge, 500 So.2d 888, 906 n. 5 (La.App. 1 Cir.1986), writ denied, 501 So.2d 762 (La.1987); Heinhuis v. Venture Associates, Inc. of Louisiana, 558 So.2d 1244, 1247 (La.App. 1 Cir.), writs denied, 559 So.2d 1369, 1385 (La.1990).

We have reviewed the audiotapes of the committee meetings of both the Senate Local and Municipal Affairs Committee and the House Municipal and Parochial Affairs Committee, discussing 2002 La. Acts, No. 147, 1st Extraordinary Session, enacting La. R.S. 33:9038.1 et seq. During these committee discussions, Representative Tom McVey, the author of the bill, explained to committee 117members that a newly created economic development district generally consists of undeveloped property that would not previously have been a tax-generating area. Representative McVey explained that the act provided for the funding of economic development projects through participation by “every taxing authority” in a rural parish, such as “school boards,” creating a mechanism that attracts businesses to locate within such a district, and which thereafter establishes a new income-producing area for local government. Representative McVey indicated that the act allowed all of the local government bodies, such as “school boards,” to “put something on the table” to produce economic development in rural parishes. “School boards” were specifically enumerated as being a tax recipient entity authorized to participate in economic development projects under La. R.S. 33:9038.1 et seq.

Other economic development legislation lends guidance on this issue. In the “Cooperative Economic Development Law,” La. R.S. 33:9020-9037, enacted by 1978 La. Acts, No. 617, § 1, “any public entity” is allowed to participate in the economic development format authorized therein. La. R.S. 33:9031. In contrast, La. R.S. 47:8001 through 48:8027, known as the “Tax Increment Development Act,” specifically excludes “school boards and school .districts” from the application of this act. La. R.S. 47:8003(27). The fact that the legislature has deemed it necessary to specifically exclude school boards from economic development legislation where desired, reinforces the conclusion that school boards, if not specifically excluded, can participate, to the extent limited by La. |18Const. Art. VI, § 21, in economic development projects.

Our decision herein is narrowly drawn to the particular facts and circumstances of this case and the particular law at issue. In this TIF law the legislature has made a policy decision to exempt certain portions of sales tax, referred to as “sales tax increments,” from what would otherwise be its designated purpose, allowing the dedication of these sales tax increments to be made for funding of economic development in rural areas, having populations not exceeding 200,000. Because the tax base in such areas is obviously smaller than metropolitan areas and local government might otherwise have insufficient revenue to fund the type of economic development project contemplated by this TIF law, the legislature deemed it necessary to allow the pledge of the combined resources of all local tax recipient entities. Furthermore, limitations were placed on the availability of the financing format: sales tax increments can be derived only from the geographical portion of the . parish designated as the economic development district; sales tax increments consist only of newly generated sales taxes in that district; sales taxes generated prior to the economic development are protected and cannot be pledged; this format cannot be used if other obligations of the parish would be in default; and the public receives advance notice of the economic development plan and has an opportunity to raise any concerns at a public hearing.

Consequently, we find no impediment to the pledge of sales tax increments by the School Board in this instance. Accordingly, we find the district court was Incorrect in adjudicating the bond issuance and associated agreements and transactions valid and legal.

Approval of Alternative Financing Structure (Assignment of Error. No. 2)

In this assignment of error, Mr. Jones contends the trial court erred in approving an alternative financing structure for the bonds when that financing structure had not been finalized and thereafter was rejected by the Livingston Parish School Board. After a careful review of the judgment rendered by the lower court, we do not interpret the judgment as contemplating approval of an alternative plan. Moreover, having found herein the judgment of the district court to be correct in upholding the originally proposed Cooperative Endeavor Agreement encompassing the pledge of tax increment funds, the validity of an alternative plan is rendered moot. Hence, this assignment of error is preter-mitted.

CONCLUSION

For the reasons assigned herein, the judgment of the district court is affirmed. All costs of this appeal are assessed to appellant, A. Ponder Jones.

AFFIRMED.

PETTIGREW, J., dissents and assigns reasons.

| PETTIGREW, J.,

dissenting.

I must respectfully dissent from the majority’s opinion. I would reverse the judgment of the trial court. It is my humble opinion that previously dedicated tax revenues of the school board, parish, and sheriffs office are specifically excluded from use in this project. See La. R.S. 33:9038.4 A(5) and (6).

When the school board and other government entities presented tax revenue issues to the electorate of Livingston Parish, all the revenues, both present and future, were dedicated for a specific purpose. There was no reservation that some part of the future revenues or “sales tax increments” might be used for other purposes.

Pursuant to La. R.S. 33:2714, “The ordinance imposing said tax and any amendments thereto, shall specify the purpose or purposes for which said tax is imposed. The revenues derived from said tax shall be dedicated and used solely for said purposes.” (Emphasis added.) See also La. R.S. 39:704; Watkins v. Ouachita Parish School Bd., 173 La. 259, 136 So. 591 (1931); Hemler v. Richland Parish School Bd., 142 La. 133, 76 So. 585 (1917).

The majority’s opinion runs contrary to ninety years of established jurisprudence. It is my humble concern that with this opinion, all previously dedicated tax revenue issues are no longer dedicated. The dedicated public coffers are now unlocked, | ^unguarded, and subject to every economic development scheme that comes down the pike. I further adopt as additional reasons for my dissent the well reasoned and logical appellate brief of the appellant in this case, as if copied in its entirety.

      . The Project also envisioned the development would attract subsequent construction and location within the District of a hotel and additional retail outlets.

      . Although in his "Answer and Exceptions,” Mr. Ponder raised numerous challenges to the bond issuance, only three issues are before this court on appeal.

      . We note that Mr. Jones attempted to assert the unconstitutionality of La. R.S. 33:9038.1-9038.10 in the lower court; however, the District objected during its closing argument at the hearing of the matter, asserting that the state attorney general had not been notified of the challenge in accordance with La. C.C.P. art. 1880. See also La. R.S. 49:257(B). Mr. Jones has not renewed his constitutional challenge to this TIF law on appeal.

      . This act is restricted to municipalities and parishes with populations of not more than 200,000. La. R.S. 33:9038.1(3).

      . We recognize that the provisions of La. Const. Art. VII, § 14(C) have been held not to be an exception to the prohibition contained in paragraph (A) in City of Port Allen, Louisiana v. Louisiana Municipal Risk Management Agency, Inc., 439 So.2d 399 (La.1983), as cited by appellant; however, in the instant case, both paragraphs (B)(3) and (C) are implicated. City of Port Allen is also distinguishable from the instant case in that at issue therein were the provisions of La. R.S. 33:1349(C), purporting to impose solidary liability on local political subdivisions; the validity of a bond issuance vis-á-vis La. Const. Art. VII, § 14(B) was not considered in that case. Therefore, City of Port Allen is not applicable to the issues presented for review herein.

      . “Political subdivision” is defined by La. Const. Art. VI, § 44(2) as “a parish, municipality, and any other unit of local government, including a school board and a special district, authorized by law to perform governmental functions.” (Emphasis added.)

      . In fact, La. R.S. 33:4717.2 provides: “In determining the consideration for any transfer, the governing authority of the political subdivision may consider the potential value of the economic impact of the enterprise being induced to locate or expand within, outside of, or adjoining the political subdivision, as well as the value of the lands, buildings, or other properties involved.”

      . In the instant case, the state has pledged one-half of its 4 percent sales tax, while the local government entities have pledged 72.7 percent of their collective 5.5 percent sales tax. Under the minimum projected first year revenue of 54 million dollars, of the approximately $2,160,000 in state sales tax revenue generated, some $1,080,000 would go toward payment of the bond issuance debt; of the approximate $2,970,000 in local government sales tax revenue generated, some $2,159,190 would go toward payment of the bond issuance debt and the local governmental entities would retain approximately $810,810 of new revenue each year. Under the maximum projected revenue scenario of 110 million dollars yearly, approximately $4,400,000 in state sales tax revenue would be generated, with some $2,200,000 going toward payment of the bond issuance debt; and, of the approximate $6,050,000 in local government sales tax revenue generated, some $4,398,350 would go toward payment of the bond issuance debt, with the local governmental entities retaining approximately $1,651,650 of new revenue each year. Upon retirement of the bonds, the governmental entities would receive 100 percent of the sales tax revenue generated each year.

      . The statute declares that "[bjonds which are issued under this Part are declared to be for an essential public and governmental purpose. ..." La. R.S. 33:9038.8(H). The legislature has also expressed the intent that protection of the tax base from which local political entities derive their, funding is a valid "purpose” for these entities. In this regard, it was stated in La. R.S. 33:9021: "The maintenance of the economy of the several local governmental subdivisions of the state at a high level is a matter of public policy and the cooperative economic development activities and powers prescribed and conferred by this Chapter are for a public purpose for which public money may be expended. As the maintenance of the economies of said local political subdivisions at a high level is found and declared to be a public purpose, the state's assistance to areas and regions of substantial and persistent unemployment, underemployment, and other forms of economic distress is necessary for the employment of effective steps in the planning, promotion, and financing of local economic development.” (Emphasis added.) "Enhancement of the tax base” of public entities was recognized as a valid public purpose in La. R.S. 47:8027. Because of the heightened emphasis placed on the need for economic development expressed by the legislature and the obvious intent to allow individual local governmental entities to share in the financing of such ventures that will result in increased revenues for each, economic development and the enhancement of-future revenues is a valid purpose of local governmental entities.

      . The legislature has mandated that the provisions of La. R.S. 33:9038.1 et seq. be liberally construed for the accomplishment of its purposes. La. R.S. 33:9038.4(J).

      . As no constitutional challenge has been levied against La. R.S. 33:9038.1 et seq., we express no opinion herein as to the constitutionality of the legislation at issue.

      . It is evident from the record that appellant is particularly concerned with the pledge by the school board of its funds, as exhibits in the district court proceeding indicate Mr. Jones has served as a School Board advisor in the past.

      . The legislature is charged by La. Const. Art. VIII, § 9 with the creation' of parish school boards; therefore, school boards are invested with such powers as have been confided to them by the legislature. See State ex rel. Golson v. Winn Parish School Bd., 9 So.2d 342, 344 (La.App. 2 Cir. 1942). The general powers and duties of parish school boards are set forth in La. R.S. 17:1 et seq., and include extensive fiscal and property management authority. In its exercise of the legislative power of the state, the legislature may enact any legislation that the state constitution does not prohibit. Louisiana Public Facilities Authority v. Foster, 2001-0009, p. 14 (La.9/18/01), 795 So.2d 288, 298. We have interpreted herein the provisions of La. R.S. 33:9038.1 to include participation as a "tax recipient entity” any school board located within a municipality or parish having a population of not more than 200,000. No constitutional challenge to this statute has been properly presented to this court. Therefore, we express no opinion as to whether the provisions of La. R.S. 33:9038.1 infringe upon any provision of the constitution.


source: Caselaw Access Project

author: _[¿FOIL, J.

license: Public Domain

text:
    Felicia WILLIAMS v. SQUARE LEAGUE CORPORATION, INC., and the State of Louisiana, Through the Department of Transportation and Development
    No. 2003 CA 1158.
    Court of Appeal of Louisiana, First Circuit.
    June 25, 2004.

      Lonny Guidroz, Maringoin, Antonio M. Clayton, Port Allen, for Appellee Felicia Williams.
    John Ayres, III, Baton Rouge, for Appellant State of Louisiana (DOTD).
    Panel composed of Judges FRANK FOIL, BRADY M. FITZSIMMONS and EDWARD J. GAIDRY.
   _[¿FOIL, J.

In this appeal, the State of Louisiana, through the Department of Transportation and Development (DOTD), challenges a judgment of the trial court holding it 80% liable for damages sustained in a single car accident. For the reasons that follow, we reverse that judgment.

FACTS AND PROCEDURAL BACKGROUND

On June 26, 1999, plaintiff, Felicia Williams, was traveling north on La. Highway 77 between Plaquemine and Grosse Tete in Iberville Parish. Her five children were riding in the 1987 Toyota Corolla with her. Ms. Williams and her son Carl (who was riding in the front passenger seat) were injured when the vehicle hit a tree that had fallen across the highway during a thunderstorm.

The parties stipulated that the tree in question was not located on DOTD’s right of way but, rather, was located on property being managed by Schwing, Inc. DOTD had not received any prior complaints about the tree.

Plaintiff, individually and on behalf of her minor children, filed suit for damages against DOTD, Schwing, Inc. and its insurer, Scottsdale Insurance Company. Her husband, Gerald Williams, joined the suit as a plaintiff, seeking damages for loss of consortium. Plaintiffs later settled with Schwing and Scottsdale and they were dismissed with prejudice.

The suit against DOTD was heard in a one-day bench trial, after which the court took the matter under advisement. The trial court subsequently rendered judgment on December 30, 2002, finding DOTD to be 80% at fault and Schwing, Inc. to be 20% at fault in causing the accident. The court awarded the following damages: $50,000.00 to Ms. Williams, $50,000.00 to the son riding in the front passenger seat, $10,000.00 each to the four children who were riding in the backseat, and $10,000.00 to Mr. Williams, |3for a total damage award of $150,000.00. No reasons for judgment were given. This appeal by DOTD followed.

APPLICABLE LAW

When trees are outside the right-of-way, they are outside the ownership or “garde” of the entity charged with maintaining the highway. Accordingly, strict liability under Louisiana Civil Code article 2317 is inapplicable and simple negligence principles apply. Murphree v. Daigle, 02-1935 p. 3 (La.App. 1 Cir. 9/26/03), 857 So.2d 535, 537, writ denied, 03-2927 (La.1/9/04), 862 So.2d 990; See also La. Civ.Code art. 2317.1. Under those principles, to establish a breach of DOTD’s duty to maintain safety for the motoring public, a plaintiff must show that a hazardous condition existed and that DOTD had actual or constructive knowledge of said condition, but failed to take corrective action within a reasonable time. Id. “Constructive notice” in negligence cases exists when the defect or condition has existed for such a period of time that it would have been discovered and repaired had the public body exercised reasonable care. Id.

The ultimate determination of whether a condition creates an unreasonable risk of harm is subject to review on appeal under the manifest error standard. Under this standard, the trial court’s findings are reversible only when there is no reasonable factual basis for the conclusions, or if they are clearly wrong. Id. at p. 4, 857 So.2d at 537. Similarly, the question of whether or not DOTD had actual or constructive notice of a hazardous condition creating a risk for motorists is a factual issue and is reviewed under the manifest error standard. Id. On the other hand, the existence of a duty is an issue of law that is determined by the trial court. On this issue, the inquiry is whether the plaintiff has any law — statutory, jurisprudential, or arising from general principles of fault — to support his claim. Id. at p. 4, 857 So.2d at 537-538.

It is well established that the state’s duty with respect to its highways is to keep the roads and shoulders in a reasonably safe condition. The state |4is not, however, the guarantor of the safety of motorists. Thompson v. State, 97-0293, 97-0302, pp. 3-4 (La.10/31/97), 701 So.2d 952, 956. Noting that DOTD has been held hable in some cases for its failure to discover and remove dead trees beyond its right-of-way, the supreme court explained:

In these cases the risk to be protected against is a tree failing onto a highway and obstructing it or striking a passing vehicle. The state’s duty to protect against this risk is to inspect for dead trees and remove them within a reasonable time. The state is not required to inspect for all trees which could fall on the road and remove them simply because they have the potential to fall onto the road.

Id. at p. 4, 701 So.2d at 956. The court further noted that it has rejected a finding of liability against the state where a dead tree that fell onto a highway was not discovered by DOTD due to the presence of other trees that obscured the view of the dead tree and the presence of bark on the lower portion of the trunk. Id.,

DISCUSSION

In its first assignment of error, DOTD argues that the trial court erred in finding that the state had actual or constructive notice of a defect in the fallen tree¡ The court’s determination of the notice issue was critical to a finding of liability in this case. After a thorough review,- we conclude the court’s finding on this issue is simply not supported by the record.

Thomas Quatrevingt, a parish supervisor for DOTD, testified that his responsibility included Highway 77 where the' accident occurred. He stated that he inspected that highway at least once every two weeks for any problems that would endanger the roadway or right-of-way. He stated that he did not normally look for rotten trees, but if he saw a rotten tree near the right-of-way and it posed a danger of falling onto the road, he would report it to his supervisor.

Fred Jewel testified on behalf of the plaintiffs as an expert in forest entomology and pathology. He inspected the tree shortly after the accident in 1999. The tree was a water oak at least 75 years old. He looked at the l^stump where the fracture occurred and observed a considerable amount of rot. There were several large rotten, cavities on the south side of the stump, approximately 4 feet up from the ground. The tree’s roots were still planted firmly in the ground. Mr. Jewel opined that the tree probably had rot in it for at least 35 to 40 years. He could not say that any possible rotten cavities would have been visible from the roadside. He stated that the tree’s canopy was probably compromised. It may not have had as many leaves as a healthy tree. It may have had as many branches, but some of the branches were probably dead.

Warren Peters testified on DOTD’s behalf as an expert in forestry. Mr. Peters inspected the accident scene several years after the accident and also studied the photographs taken by the state police and Mr. Jewel. Because the trunk of the tree had been covered with vines, and the area where the trunk was located was quite shaded, Mr. Peters opined that it would have been very hard to see the tree trunk from the roadway. Mr. Peters examined one of the state police photographs, which shows a cross-section of the tree lying across plaintiffs vehicle, and noted the cross-section appeared “pretty healthy and solid.” He opined that was an indication that, in all likelihood, the tree’s canopy would have appeared healthy.

Based on our review of the record, we conclude that there is no reasonable factual basis in the record for a finding that DOTD had actual or constructive notice of the hazardous condition of the tree. There was absolutely no evidence that the tree laid across the highway for any length of time, such that in the exercise of reasonable care DOTD would have discovered and removed it. Rather, the evidence showed that the accident occurred in a heavy thunderstorm and the tree probably fell during the storm. Furthermore, there is no evidence that the tree was noticeable or discoverable prior to the accident as a rotten tree that was about to fall onto the highway. Rather, the evidence shows that DOTD regularly inspected the highway. The tree in question was not in plain view. It was not on DOTD’s | ¿right-of-way, but was located some feet beyond the tree line behind dense foliage and growth. Although it obviously harbored a rotten cavity and its canopy was perhaps compromised, the outward appearance of its canopy in the photographs taken at the scene was healthy and green. The evidence further showed that the tree’s trunk was covered by the growth of vines, probably obscuring its rotten cavity. There was simply no evidence in the record that the state had notice, actual or constructive, of the tree that caused this accident.

CONCLUSION

Based on the foregoing, we reverse the trial court’s judgment holding DOTD to be 80% liable for plaintiffs’ injuries. All costs of this appeal are assessed to plaintiffs.

REVERSED.

      . The other four children who were riding in the backseat were not seriously injured. They were treated and released the day of the accident from Riverwest Medical Center.


author: I .DOWNING, J. | ]PETTIGREW, J.,

text:
    ORANGE GROVE PROPERTIES, L.L.C. v. Jean ALLURED, Asa J. Baber, Jr., Dorothy Baber, Elizabeth Breazeale, H. Payne Breazeale, III, John Breazeale, Robert Breazeale, Jr., Robert Breazeale, III, Susan Breazeale, Bruce Crosthwait, William Crosthwait, John Dahmer, Nita K. Street D’Aubin, Clay B. Doskey, Linda Grant, Marcia Grant, Robert B. Grant, Paul Hebert, Jr, Oscar Lipscomb, Mary G. Laflin, Annette Breazeale Lee, Barbara H. Magruder, Mary H. McCowan, Charles Mercer, John Mercer, Robert Mercer, Victor Mercer, Peltier Land Co., Gail Grant Record, Elisabeth F. Sachse, Harry Sachse, Victor Sachse, III, Michael Street, Stephen Street, Trustee, Stephen Street, Jr., Stephen Street, Sr., Terre Par. Consl. Gov., Woodberry Royal Inc., Julie Breazeale Wright.
    No. 2003 CA 1878.
    Court of Appeal of Louisiana, First Circuit.
    June 25, 2004.
    A.J. Gray, III, Lake Charles, Counsel for Plaintiffs/Appellants Orange Grove Properties & Michael St. Martin.

      Christopher St. Martin, Houma, William A. Eroche, Carl T. Conrad, Houma, Counsel for Defendants/Appellees Orange Grove Holdings, L.L.C., Peter Bertucci, Jr. & Kenneth Watkins and Intervenor Commerce Bank, N.A. of Bloomington, IL.
    Victor A. Sachse, III, Paul M. Hebert, Jr., Robert I. Atkinson, Baton Rouge, Counsel for Defendants/Appellees Mary Hebert McCowan, et al.
    Brent J. Rhodes, Damon J. Baldone, Houma, Counsel for Defendants/Appellees Absent and Unknown.
    Charles S. McCowan, III, Baton Rouge, Counsel for Defendants/Appellees Mary Hebert McCowan, et al.
    Stephen G. Peltier, Thibodaux, Counsel for Defendant/Appellee Peltier Land Company.
    John D. Schoonenberg, Houma, Counsel for Defendant/Appellee Terrebonne Parish Consolidated Government.
    Elton A. Darsey, Houma, Counsel for Defendant/Appellee Jerry J. Larpenter, Sheriff of Terebonne Parish, Peter S. Ber-tucci, Jr.
    Before: PETTIGREW, DOWNING and McClendon, jj.
   I .DOWNING, J.

This matter arises from a public sale to partition property by licitation where the high bidder did not pay the bid price until two days after the auction. Orange Grove Properties, L.L.C., filed a petition to set aside the sale and to have Michael St. Martin declared the highest bidder. The trial court’s judgment dismissed the suit and also cancelled a surface lease with Gecko Services, Inc. Orange Grove Properties, L.L.C., Michael X. St. Martin, and Gecko Services, Inc. (collectively, OG Properties), appeal the judgment.

The high bidder, Orange Grove Holdings, L.L.C. (OG Holdings) filed a motion to dismiss this appeal. For the following reasons, we deny the motion to dismiss, affirm the trial court’s dismissal of the lawsuit, and affirm the cancellation of Gecko’s surface lease.

FACTS AND PROCEDURAL HISTORY

This matter began as a partition proceeding instituted by OG Properties, which had purchased an undivided 2/10 of 1 percent interest in 2,704.73 acres of Terre-bonne Parish marshland on February 15, 2001. OG Properties no longer wished to own the property in common with the other thirty-nine named defendants. A trial was held on August 12, 2002, and the court ordered the property to be publicly sold for cash by the Terrebonne Parish Sheriffs Office. The sale took place November 6, 2002.

OG Properties’ first bid was $50,000.00, and it continued bidding until the property was sold to its opponent, OG Holdings, for $1,300,000.00. At the time of the auction, OG Holdings had not yet filed its formation documents with the Louisiana Secretary of State Office. Two days later, on LNovember 8, 2002, these papers were filed, and that same day, a check to pay for the property was delivered to the Terre-bonne Parish Sheriff.

On November 8, 2002, OG Properties filed a petition to declare the sale null and to declare the bid of Michael X. St. Martin in the amount of $50,000.00 the last and highest bid.

On November 15, 2002, Gecko filed a petition to be recognized as having a surface lease on the said property. The purported lease from Orange Grove Properties, L.L.C. to Gecko Services, Inc. was filed in the conveyance records in Terre-bonne Parish. In its answer to OG Properties’ petition, OG Holdings filed a recon-ventional demand to cancel the lease. The reconventional demand alleged that the lease was facially invalid and subject to immediate cancellation at the lessor’s option due to Gecko’s abandonment of its obligations to the property.

The matter was tried on February 21 and March 14, 2003. Judgment was signed on March 21, 2003, dismissing with prejudice, OG Properties’ petition to declare the $50,000.00 bid the last and highest bid and dismissing Gecko’s petition to be recognized as having a surface lease on the property. From that judgment, this appeal ensued with OG Properties alleging the following assignments of error.

ASSIGNMENTS OF ERROR

1. The trial court erred in ruling that the sale to OG Holdings met the terms of the Partition Judgment, Commission to Sell, Notice of Sale and Legal Advertisements.

2. The trial court erred in relying on La. R.S. 13:4360 to permit OG Holdings to delay in paying its bid price.

3. The trial court erred in relying on La. R.S. 33:1428(7)(b) to permit OG Holdings to delay in paying its bid price.

4. The trial court erred in not rescinding the sale to OG Holdings because the Terrebonne Sheriff acted arbitrarily and capriciously in determining when the bid payment was due.

|r5. The trial court erred in not awarding the Partitioned Property to St. Martin, the only other bidder.

6. The trial court erred in canceling the Gecko surface lease.

MOTION TO DISMISS APPEAL

OG Holdings filed a motion to dismiss this appeal alleging that since the money for the sale has already been distributed to the property owners, the sale has been perfected, rendering this matter moot. OG Holdings cited no authority for this proposition, and we find none.

A moot case is one that seeks a judgment or a decree which, when rendered, can give no practical relief. Robin v. Concerned Citizens, St. Bernard, Inc., 384 So.2d 405, 406 (La.1980). It is well settled that the function of the appellate courts is to render judgments that can be made effective and not to give opinion on moot questions or abstract propositions. State v. Slater, 205 La. 1077, 18 So.2d 627, 628 (1944). An appeal however, is an exercise of the right of a party to have a judgment of a trial court revised, modified, set aside, or reversed by an appellate court. La.C.C.P. art.2082. This particular appeal appears to be no different from any other devolutive appeal involving a money judgment that has already been dispersed to the winning party before the appellate decision has been rendered. Thus, for the reasons assigned, the motion to dismiss this appeal is denied.

JUDICIAL SALES

The judgment rendered in the 32nd Judicial District Court ordered that the property at issue “be publicly sold for cash by the Terrebonne Parish Sheriff.” A judicial sale was held, and OG Holdings was the high bidder. It presented a certified check in the amount of $1,300,000.00 two days later.

| (;OG Properties argues that since OG Holdings did not have funds in its possession at the time of bidding and did not pay the bid price in cash at the time of the sale, the property should have been awarded to the other bidder.

There are two kinds of judicial sales. La.R.S. 9:3166. Those that are held when the property has been seized by an order of the court to be sold for the purpose of paying a creditor, and those that are ordered in matters of succession or partition. This is the latter kind and is subject to rules laid down for public sales in general so long as those rules are not contrary to the formalities expressly prescribed for such sales (in Title 13) La.R.S. 9:3167.

OG Properties argues that the sale should be set aside because the parties had not complied with the formalities of La. R.S. 13:4360. OG Properties argues that no provisions were made for a delayed payment and that the Sheriff had no authority to allow OG Holdings to pay on the third day after the sale. It argues that this act amounted to an “extension of credit” to this bidder. OG Properties cites Falgoust v. Morgan, 444 So.2d 740 (La.App. 5 Cir. 1984), for this proposition.

Louisiana Revised Statutes 13:4360 provides that if the terms of sale provide for the full payment of the adjudication price at the moment of the adjudication, the seizing creditor may direct the officer conducting the sale either to re-offer the property immediately, or re-advertise the property for sale as provided in subsection C. La.R.S. 13:4360. The terms of the statute do not mandate a re-sale of the property. This is a permissive statute allowing the “seizing creditor” to decide whether to accept cash only or to order the property to be re-sold.

In this regard, we first note that no direction was made in accordance with the statute to trigger a re-sale. Rather, the seller accepted the funds, late |7or not. Therefore, were La.R. S. 13:4360 the controlling statute here, the trial court would not have erred in refusing to order a resale.

Next, assuming arguendo that a sale for cash under La.R.S. 13:4360 is a sale requiring “full payment of the adjudication price at the moment of the adjudication,” we note that here there is no “seizing creditor.” La.R.S. 13:4360, therefore, does not expressly apply. Accordingly, the public sale rules under La.R.S. 9:3151 et seq. as applied through La.R.S. 9:3167 govern this sale.

Louisiana Revised Statute 9:3159 provides that when the adjudication is made on condition that the price is to be paid in cash, then the auctioneer “may” require the price immediately before delivering possession of the thing sold. However, if the object adjudged is an immovable for which the law requires an act of sale, then the act of sale should be passed within twenty-four hours after the adjudication, if one of the parties requires it; and he who occasions a delay is responsible to the other in damages. La.R.S. 9:3160. If the price is not paid within ten days, the seller may order the property resold. La.R.S. 9:3161.

Here, the funds were paid within forty-eight hours, and there is no evidence that any party required the passage of the act of sale within a twenty-four hour period. There is no evidence in the record of any damages from the purported delay.

Even so, OG Properties argues that the sale should be set aside because the facts before us are analogous to those in Fal-goust. We disagree. Falgoust involved unequal treatment of the bidders at the sheriffs sale when one bidder was allowed to pay by check and the other bidder was required to pay in cash at the time of the sale. Those are not the facts of this case.

1 ¡¡Here, the trial court found as a fact that an announcement was made to all present that a high sale price was anticipated and whoever prevailed in the bidding would be allowed time to make arrangements to pay. Consistently, the sheriffs deputy who actually conducted the sale, Lt. T.J. Soudelier, testified that prior to the bidding on this particular property, he announced that the final bid price could be paid within a couple of days. |9Lt. Soudelier said that before the bidding began, he advised the audience that he would take the commission to sell first; and that the terms he had just announced for the regular sale did not apply to the commission to sell property. OG Properties argue that Lt. Soudelier never made a general announcement. Another witness, however, supported the deputy’s testimony, saying that he heard the announcement prior to the bidding. The trial court evidently accepted this testimony as true. Therefore, we conclude that Falgoust is inapplicable to the facts before us.

Accordingly, finding no manifest error, this sale was completed within the period prescribed by law pursuant to La.R.S. 9:3161, thus, assignments of error one, two, four and five are without merit.

Regarding the third assignment of error, OG Properties allege that the trial court erred in relying on La.R.S. 33:1428(A)(7)(b) to permit OG Holdings to delay in paying its bid price. The trial court’s written reasons referred to La.R.S. 33:1428(A)(T)(a) and (b) in discussing the discretion afforded the sheriff concerning the fee or commission to be paid for selling the property. We conclude that La.R.S. 33:1428(7) is not applicable to the facts of this case. Therefore, this assignment of error is without merit.

SURFACE LEASE

OG Properties alleges in its final assignment of error that the court erred in can-celling Geckos’ surface lease. The trial court declared the lease to be invalid because it failed to specify a real rent and because of Gecko’s failure to perform services on the property.

The lease provided that Gecko was contracted to patrol the property and prevent the entrance of poachers and trespassers for a term of ten years. Paragraph 7 specifically provided that Gecko was to keep the premises in good condition at its own expense and to not permit the presence, use, 1 instorage, or release of hazardous substances during the term of the lease. The lease also had an abandonment provision. Paragraph 11 provided that should the premises be abandoned then the lease may be cancelled.

The trial court ruled that the evidence at trial showed that no acts were actually conducted in performance of Gecko’s obligation to patrol the property. Gecko answered an interrogatory stating that a Gecko employee appeared at least twice a week to perform these contractual duties, but this assertion was disputed. Lee Welch testified that he had been going on the property for over twenty years and had never once seen a Gecko representative. Other witnesses who frequently hunted and fished on the property also testified that they had never seen anybody patrolling for poachers or trespassers. Sean Leary, Gecko’s sole representative, admitted under oath that no real action to provide this service had been rendered. Mr. Leary also admitted that Gecko’s answer to interrogatories regarding how much time was spent on the property was untrue.

Paragraph 11 of the lease provides a remedy in case the lessee is found to have abandoned its duties. There was ample evidence to support a finding that Gecko’s contractual obligations were deemed to be abandoned because of its failure to preserve, maintain, and manage the property in an effort to prevent the entrance of poachers and trespassers. Accordingly, we conclude that the trial court did not err in cancelling the lease pursuant to Orange Grove Holding’s request. This assignment of error is without merit.

DECREE

For the above reasons, the judgment of the trial court is affirmed. The costs of this appeal are assessed against Orange Grove Properties L.L.C., Michael X. St. Martin, and Gecko Services, Inc.

AFFIRMED.

PETTIGREW, J., concurs, and assigns reasons.

| ]PETTIGREW, J.,

concurring.

I respectfully concur with the majority’s report, and note additional reasons to cancel Gecko’s lease. The Gecko lease was an attempt to manage the property. Louisiana Civil Code Article 801 requires agreement of all the co-owners of the thing to manage the property. OG Properties did not have the consent of all the co-owners.

Secondly, La. Civ. Code art. 805 requires the consent of all the co-owners for the lease, alienation, or encumbrance of the entire thing held in indivisión. The lease to Gecko did not have the consent of all the co-owners and therefore was invalid from its inception.

      . We note the similarity in the names, but appellants herein will be referred to as OG Properties, and we will refer to appellees as OG Holdings.

      . At trial, Lt. Soudelier testified in pertinent part as follows:
      Q: Did you suggest to them [Chris or Steven St. Martin] that the cash could be paid at any time other than at—
      A: Because of this situation, I knew that the sale price would go up into the hundreds of thousand dollars of dollars or a million or so forth, I gave them — they could have their money — in fact, I made this announcement at my sheriff's sale, that because of the commission to sell would be at such amounts, that they could have their — they could make arrangements to pay the sheriffs office their sale — their bid price, you know, within a couple of days if they needed to.
      Q: You announced that at the morning of the sale?
      A: At the morning of the sale, I did a specific thing of the morning of the sale. You were there, right?
      Q: I know. And that's — I know I was there. I'm asking you—
      A: Right.... And in that particular case for the commission to sell, I advised the audience that I was going to take the commission to sell first; and that the terms I had just announced did not apply to the commission to sell.
      Q: Did you state to the group present what terms in your opinion applied to the commission to sell?
      A: I said if they could — they could — they could make arrangements with us when they’re going to pay their funds.
      Q: I want to be real — real clear here. Did you say that before the bidding started to the group that was assembled?
      A: That’s right.

      Q: Did you say when people’s money would be due?
      A: No, I didn't.

      Q: It wasn’t due by 3:00
      A: That is correct....
      Regarding his conversations with Mr. St. Martin's office prior to the sale, Lt. Soudlier testified as follows:
      Q: When you were contacted by Mr. St. Martin or his office or either one of his sons to determine terms of payment, did you tell them that they could not make their payment other than at 3:00 pm on the date of sale? In other words, did they have to have their payment there at 3:00 pm on the date of sale?
      A: No. Not on a commission to sell. And I knew it was going to go at a pretty high bid amount.
      Q: So you would have afforded them the same extension of time for payment that you afforded Orange Grove Holdings.
      A: That is corect[correct]. And that's the same announcement that I made at the beginning of my sales.


author: |,KUHN, J.

text:
    Leonard J. SULLIVAN and Elaine Vinci Sullivan v. Sam Salvador VINCI.
    No. 2003 CA 1817.
    Court of Appeal of Louisiana, First Circuit.
    June 25, 2004.
    David M. Cohn, Baton Rouge, Counsel for Plaintiffs/Appellants Leonard J. Sullivan and Elaine Vinci Sullivan.
    Michael O. Hesse, St. Francisville, Counsel for Defendant/Appellee Sam Salvador Vinci.
    Before: WHIPPLE, KUHN, and McDonald, jj.
   |,KUHN, J.

Plaintiffs-appellants, Leonard J. and Elaine Sullivan, appeal that portion of the trial court’s judgment that purports to fix the boundary of a contiguous tract of property belonging to defendant-appellee, Sam Salvador Vinci, located in West Feliciana Parish. Finding the evidence insufficient to support a judgment delineating a boundary between the two tracts, we vacate and remand.

In 1945, Santo Vinci (Santo) donated an eight-acre tract to his grandson defendant-appellee, Sam Vinci (Vinci). Santo owned an approximately 914-acre tract, known as the Wyoming Plantation, which was situated on both sides of old Highway 61 (now known as Commerce Street). The donation identified the eight-acre tract transferred to Vinci as:

A certain piece or parcel of land with all the buildings and improvements thereon, and all the rights, ways, privileges and appurtenances thereunto belonging to or in anywise appertaining, situated a short distance below the Town of St. Francisville, La., fronting Eight Hundred and Fifty (850) feet on State Highway Sixty-One (61), commencing at an iron stake on the South side of said State Highway 61, where the fence West of the pond adjoining the residence property of Mrs. Rose Rosso Vinci intersects the fence running alongside said State Highway 61; thence along said State Highway 61 in a Westerly direction a distance of eight hundred and fifty feet to an iron stake, and running back between parallel lines a sufficient distance to contain, embrace and include Eight (8) acres of land, and being a portion of the Wyoming Plantation acquired by Donor from W.R. Daniel and J.R. Daniel, as will appear in the Conveyance Records of this said Parish.

The eight-acre lot is referred to as Lot 1. It is undisputed that Vinci’s eight-acre tract was not fenced in or otherwise set out by natural boundaries.

|sAfter Santo’s death, along with other heirs, the parties acquired co-ownership interests in the remainder of the Wyoming Plantation. In 1988, they sought a judicial partition of their interests in the plantation. In conjunction with the partition suit, Walter C. Snyder was appointed to survey the Wyoming Plantation. Although not officially prepared as a certified survey or recorded, Snyder prepared a “work map,” which identified the location of the 913.78-acre plantation. The Sullivans and Vinci, along with other heirs, continued to co-own the Wyoming Plantation. On November 8, 2000, they entered into an Act of Partition whereby each obtained full ownership of portions of the former Wyoming Plantation. A survey prepared by Tobias Ford, Jr., depicted the transferred acreage, expressly identifying the eight-acre tract (Lot 1) which Vinci had acquired in 1945, along with additional acreage, de-marked as Lots 2, 3, and 4. Because the parties were already disputing the location of Lot 1 in relation to former U.S. Highway 61, the Act of Partition expressly stipulated that the adoption of Ford’s map of survey “is not intended to otherwise adopt, delineate, or effect the remaining boundary lines of Lot 1 (8.00 acres) shown thereon, which is separately owned by” Vinci. This boundary suit, instituted by the Sulli-vans, followed.

The issue raised by the Sullivans in this appeal is whether the northwestern boundary of Vinci’s eight-acre tract comprising Lot 1 commences at the center line of old U.S. Highway 61 or whether it is fixed along the right-of-way to old Highway 61. Despite the parties’ reliance on the earlier surveying work done by Snyder and Ford, the record is devoid of any evidence establishing the nature of the ownership of old Highway 61. Although the parties agree that old Highway 61 is owned by the State, the record does not contain any information to confirm this |4or to establish the nature of the ownership of the highway. The Sullivans urge that the State was transferred only the servitude for the highway and that, in accordance with the customary practice, the boundary line is properly fixed at the centerline of old Highway 61 and, on appeal, maintain that the trial court’s conclusion to the contrary is error.

- In rendering judgment, the trial court ordered that the boundary of Lot 1 “be fixed in accordance with the legal description,” shown in the 1945 donation and:

further in accordance with the survey prepared by [Snyder] in the [1988 partition suit] except that the western boundary for the property ... is hereby fixed along the right of way for [old Highway 61] rather than the center line ... with a distance of 850 [feet] along the right of way for [old Highway 61], The northern and southern boundaries of said eight acre tract shall extend, as shown on the aforementioned survey, in an easterly direction so as to encompass an area of eight (8) acres, with the end points of said boundary lines being connected by a line parallel to that shown on the Snyder survey, constituting the east line of the property, it being intended that only eight (8) acres of land shall be found within the final boundaries as provided for herein.

But neither the 1945 act conveying by donation the eight-acre tract to Vinci nor the working map of survey prepared by Snyder establishes the right of way of old Highway 61 so as to permit the trial court to fix the northwestern boundary of Lot 1. And without situating of old Highway 61, there is no established point to commence a delineation of the boundaries of Lot 1, including that which would separate the parties’ tracts. See Durr v. Beard, 443 So.2d 757, 759 (La.3d Cir.1983) (judgment vacated where neither survey commenced from an established point); see also Perkins v. Mullins, 367 So.2d 131, 132 (La.App. 2d Cir.1979) (judgment vacated where only evidence before the court were two surveys neither of which commenced from a proven government corner). Accordingly, we vacate the trial court’s judgment and remand for the trial court to fix a boundary. See La. C-C.P. arts. 3692 & 3693. Appeal costs are assessed one-half to plaintiffs-appellants, Leonard J. and Elaine Sullivan, and one-half to defendant-appellee, Sam Vinci.

VACATED AND REMANDED.

      . That portion of the judgment rendered in favor of the Sullivans, rejecting Vinci’s claim for possession of land beyond that called for in his title was not appealed.


author: J^PETTIGREW, J.

text:
    QUALITY GAS PRODUCTS, INC. v. BANK ONE CORPORATION, Jane Dean and William H. Dean.
    No. 2003 CA 1859.
    Court of Appeal of Louisiana, First Circuit.
    June 25, 2004.
    Richmond C. Odom, Baton Rouge, for Plaintiff-Appellant Quality Gas Products, Inc.
    James Boren, Baton Rouge, for Defendant-Appellee Jane Dean.
    William H. Dean, Baton Rouge, Defendant-Appellee in Proper Person.
    Robert W. Barton, Baton Rouge, for Defendant-Appellee Bank One, N.A.
    Before: PETTIGREW, DOWNING, and McClendon, jj.
   J^PETTIGREW, J.

In this case, plaintiff, Quality Gas Products, Inc. (“Quality”), appeals a judgment rendered by the trial court in favor of defendant, Bank One, N.A. (“Bank One”), sustaining Bank One’s peremptory exception raising the objection of prescription, For the following reasons, we affirm the trial court’s judgment.

FACTS AND PROCEDURAL HISTORY

On November 2, 2001, Quality filed the instant suit against defendants, Bank One, Jane Dean, and William H. Dean, alleging conversion (as set forth in La. R.S. 10:3-420) of numerous checks made payable to Quality. According to Quality’s petition, Mrs. Dean was hired in 1992 as its propane sales manager. Mrs. Dean’s duties included collecting accounts receivable, opening mall, processing payments, making deposits, and reconciling customer accounts. At some point during her employment with Quality, Mrs. Dean began taking checks made payable to and received by Quality and depositing them into a joint account owned by her and her husband, William H. Dean. As alleged by Quality, this activity by Mrs. Dean took place over the five years prior to her termination on February 28, 2001, and amounted to over $730,000.00.

Following Initial discovery, Bank One filed a peremptory exception raising the objection of prescription. Noting the one-year prescriptive period set forth in La. R.S. 10:3-420, Bank One argued that any claims brought by Quality that arose from alleged conversions occurring more than one year prior to suit being filed were prescribed and should be dismissed. The matter proceeded to hearing before the trial court on April 28, 2003, at which time the court received evidence into the record and heard argument from counsel for both sides. After considering the evidence and the applicable law, the trial court sustained Bank One’s exception and dismissed, with prejudice, all claims brought by Quality against Bank One based on thefts or conversions alleged to have occurred prior to I November 2, 2000. The trial court signed a judgment in accordance with its findings on May 5, 2003.

ISSUE ON APPEAL

It is from this judgment that Quality has appealed, arguing that the trial court erred in sustaining Bank One’s exception raising the objection of prescription. Quality asserts this case is clearly distinguishable from Daube v. Bruno, 493 So.2d 606 (La.1986), the case heavily relied on by Bank One in its argument that Quality’s claim was prescribed and cited by the trial court in its oral reasons for judgment. Noting that Daube involved an action on a forged indorsement subject to a one-year prescriptive period as set forth in La. Civ.Code art. 3492, Quality asserts that Mrs. Dean’s indorsement of the checks in question with “For Deposit” followed by the number of the account into which the cheeks are to be deposited does not constitute a forged in-dorsement and, thus, Daube does not apply. Rather, Quality maintains, this is an action on a negotiable instrument and is subject to a five-year liberative prescriptive period as set forth in La. Civ.Code art. 3498.

Bank One counters, noting, “[t]he flaw in [Quality’s] argument is that the one year prescriptive period applies here not because the case involves forgeries, but rather because it involves conversions.” (Emphasis in original.) Citing Daube as support for its position, Bank One asserts that because Quality has explicitly pled acts of conversion, La. R.S. 10:3 — 420(f) mandates a one-year liberative prescriptive period. Thus, Bank One contends, the trial court was correct in sustaining the exception and dismissing all claims by Quality that occurred prior to November 2, 2000. Although we find the facts and circumstances herein to be distinguishable from the facts of Daube, we agree with Bank |4One’s position that the conversion claims as alleged by Quality are subject to a one-year liberative prescriptive period.

DISCUSSION

Generally, the party pleading prescription has the burden of proving the facts supporting the exception. However, where a plaintiffs claims are prescribed on the face of the petition, the burden shifts to the plaintiff to prove a suspension or interruption of the prescriptive period. Iverstine v. Albemarle Corp., 2002-2555, p. 7 (La.App. 1 Cir. 7/2/03), 852 So.2d 492, 497, unit denied, 2003-2583 (La.12/12/03), 860 So.2d 1154. Moreover, it is well settled under Louisiana law that the allegations and prayer of the petition determine the true nature of the action and the applicable prescriptive period. Griffin v. BSFI Western E & P, Inc., 2000-2122, p. 8 (La.App. 1 Cir. 2/15/02), 812 So.2d 726, 733.

In the instant case, Quality’s suit specifically asserts a cause of action against defendants for conversion pursuant to La. R.S. 10:3-420. This statute is a modification of former La. R.S. 10:3-419 and provides, in pertinent part, as follows:

(a) An instrument is converted when
(i) a drawee to whom it is delivered for acceptance refuses to return it on demand; or
(ii) any person to whom it is delivered for payment refuses on demand either to pay or to return it; or
(iii) it is taken by transfer, other than a negotiation, from a person not entitled to enforce the instrument or a bank makes or obtains payment with respect to the instrument for a person not entitled to enforce the instrument or receive payment.
(f) Any action for conversion ... prescribes in one year.

Thus, based on the allegations of Quality’s petition and the clear language of La. R.S. 10:3-420(f), the applicable prescriptive period in the instant case is one year.

|sAs previously indicated, Bank One cited the Louisiana Supreme Court’s decision in Daube in its argument to the trial court concerning the prescription issue. In Daube, the plaintiff was the payee of checks made by his employer. A third party forged the payee’s indorsement on the checks and deposited them to her own account. The plaintiff sued the forger, the payor bank, and the collecting bank under former La. R.S. 10:3-419(1). The issue on appeal was whether the plaintiffs action prescribed in one year as a delictual action under Article 3492 or in five years as an action on a negotiable instrument under Article 3498. The court held that an action by a “true owner” and payee of a check against the payor for payment on a forged indorsement is a tort action, subject to a one-year liberative prescriptive period.

[W]e conclude that La.R.S. 10:3-419(1) authorizes a delictual action when a person pays an instrument on a forged in-dorsement for which he may be held liable to the true owner. This action is similar in nature to an action by one who has been dispossessed of a movable as a result of an offense or quasi-offense which is an action under the law of delictual obligations. The action is based on the fault of the defendant, and includes fact patterns such as those that are set forth in La.R.S. 10:3^419(1), and may be directed to the recovery of the movable with damages for the injury plaintiff sustained or for damages only when plaintiff has no longer an interest in the recovery of the movable.
As stated above, La.R.S. 10:3-419(1) authorizes a delictual action. It does not, in addition to this delictual action, authorize an action on the instrument. Louisiana follows the model of the Uniform Commercial Code which only provides a tort remedy for an action brought under section 3^419(l)(c). Contractual, warranty and other remedies are provided under different sections. See for example La.R.S. 10:3-413 to 414 (contract), 10:3-417 (warranty). There is no evidence of any legislative intent to depart from this strategic deployment of remedies.
Under the facts alleged by the plaintiff, we conclude that he had but one action, a delictual action against [the payor bank] for the payment of the instruments on the forged indorsements. Because delictual actions are subject to a one year liberative prescription, which expired before suit was filed, the trial court correctly sustained the exception of prescription.

Daube, 493 So.2d at 609-610 (citations omitted).

While the factual scenario currently before us does not involve a forged indorsement, as was the case in Daube, we find the court’s reasoning therein to be persuasive. Mrs. Dean’s actions in this case clearly constitute a conversion as set forth in La. R.S. 10:3 — 420(a)(iii). As with the action in Daube filed under the former La. R.S. 10:3-419(1), the conversion action filed herein pursuant to La. R.S. 10:3-420 is a delictual | ^action subject to a one-year prescriptive period as mandated by La. R.S. 10:3-420(0 and La. Civ.Code art. 3492. The applicable statute does not authorize a separate action on the instrument. Thus, there is no merit to Quality’s argument that its claims against Bank One are subject to a five-year prescriptive period. Accordingly, the trial court’s judgment sustaining Bank One’s exception raising the objection of prescription and dismissing, with prejudice, all claims brought by Quality against Bank One based on conversions alleged to have occurred prior to November 2, 2000, is affirmed.

CONCLUSION

For the above and foregoing reasons, we affirm the judgment of the trial court. All costs associated with this appeal are assessed against plaintiff-appellant, Quality Gas Products, Inc.

AFFIRMED.

      . Quality's original petition for damages named "Bank One Corporation" as a defendant. However, in a subsequent amending and supplemental petition, "Bank One, N.A." was substituted as the proper party defendant.

      . Louisiana Civil Code article 3492 provides for a one-year liberative prescriptive period for delictual actions that begins to run from the day the injury or damage is sustained.

      .The prescriptive period for actions on negotiable instruments is set forth in La. Civ.Code art. 3498 as follows: "Actions on instruments, whether negotiable or not, and on promissory notes, whether negotiable or not, are subject to a liberative prescription of five years. This prescription commences to run from the day payment is exigible.”

      . Prior to its amendment by La. Acts 1992, No. 1133 § 3, effective January 1, 1994, La. R.S. 10:3-419(1) provided that "when a person pays an instrument on a forged indorsement, he is liable to the true owner.”


text:
    Dorothy M. HARDY v. STATE of Louisiana, Office of Community Services.
    No. 2003 CA 1771.
    Court of Appeal of Louisiana, First Circuit.
    June 25, 2004.
    Dorothy Hardy, St. Francisville, In Proper Person Appellant.
    Gloria Angus-Bolds, Baton Rouge, for Appellant Office of Community Services.

      Panel composed of Judges FRANK FOIL, BRADY M. FITZSIMMONS and EDWARD J. GAIDRY.
   _[¿FOIL, J.

In this workers’ compensation case, the employer and employee both appeal. The employer, State of Louisiana, through the Office of Community Services (OCS), challenges the determination of workers’ compensation judge Anthony Palermo that Dorothy Hardy, the employee, sustained a work-related accident. In her appeal, Ms. Hardy contends the workers’ compensation judge erred in finding that her back injury was not related to the work accident on October 22, 1999. She further claims she should have received supplemental wage benefits during nine days she took leave without pay, before she began receiving disability retirement income. Finally, she asserts that OCS deliberately failed to timely pay expenses and benefits. For the reasons that follow, we affirm.

DISCUSSION

An employee seeking workers’ compensation benefits must establish by a preponderance of the evidence that he has suffered an injury as a result of an accident arising out of and in the course of his employment. A worker’s testimony alone may establish a work-related accident if: (1) no other evidence casts serious doubt on his version of the incident; and (2) his testimony is corroborated by the circumstances following the alleged incident. Corroboration may be provided by coworkers, spouses, friends, or medical evidence. See La. R.S. 23:1031; Bruno v. Harbert International, Inc., 593 So.2d 357, 361 (La.1992).

In determining whether a worker has shown by a preponderance of the evidence that an injury-causing accident occurred in the course and scope of employment, the trier of fact is expected to focus on the issue of credibility because, absent contradictory circumstances and evidence, a worker’s testimony is accorded great weight. See Bruno, 593 So.2d at 361. The WCJ’s factual determinations regarding the worker’s credibility and whether the worker has discharged his burden of proof should not be disturbed on review unless manifestly erroneous. Bruno, 593 So.2d at 361.

lain applying the manifest error standard of review, the appellate court must determine not whether the trier of fact was right or wrong, but whether the fact-finder’s conclusion was a reasonable one. Where there are two permissible views of the evidence, a factfinder’s choice between them can never be manifestly erroneous or clearly wrong. Stobart v. State, Department of Transportation and Development, 617 So.2d 880, 883 (La.1993). Thus, if the factfinder’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840, p. 8 (La.7/1/97), 696 So.2d 551, 556.

Conflicting evidence was presented in this case on the issue of whether a work-related accident occurred. The WCJ resolved this conflict in favor of Ms. Hardy. He specifically found, based upon Ms. Hardy’s testimony, the medical records from the West Feliciana Hospital, the testimony of Dr. Richard Rathbone, and the accident report, that Ms. Hardy proved by a preponderance of the evidence that a work-related accident occurred on October 22, 1999. The WCJ found that the accident resulted in injuries to Ms. Hardy’s foot and knee. He further found that Ms. Hardy’s testimony, the medical records and the accident report did not prove that this accident caused a back injury. The WCJ awarded six weeks of temporary total disability benefits based on Dr. Randall Lea’s report. He provided that the state would receive a credit for disability retirement benefits paid during the period of disability. The WCJ ordered that the state pay for the medical expenses related to the knee and foot injury, but not for treatment of Ms. Hardy’s back complaints. Finally, the WCJ did not find any arbitrary and capricious conduct and denied an award of penalties. He assessed each party with payment of her and its own costs.

Our review of the record convinces us that the WCJ was not clearly wrong in concluding that there was sufficient evidence of a work-related 14accident, resulting in Injuries to Ms. Hardy’s foot and knee, but not her back. We likewise find no manifest error in the WCJ’s findings as to the duration of her disability, her entitlement to only TTD benefits, and his refusal to award penalties.

CONCLUSION

For the foregoing reasons, the workers’ compensation judgment is AFFIRMED. Costs of this appeal are to be borne equally by OCS and Ms. Hardy.

AFFIRMED.