author: |,GUIDRY, J.

text:
    Mary Jo Mayfield DELAHAYE v. Michael T. DELAHAYE.
    No. 2004 CA 0310.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 30, 2004.
    Rehearing Granted March 9, 2005.
    Writ Denied May 20, 2005.

      Paul M. Hebert, Jr., Baton Rouge, Robert C. Lowe, New Orleans, Counsel for Plaintiff/Appellee Mary Jo Mayfield Dela-haye.
    Mark D. Plaisance, Baker, Charles R. Browning, Livonia, Counsel for Defen-dani/Appellant Michael T. Delahaye.
    Before: GUIDRY, GAIDRY, and McClendon, jj.
   |,GUIDRY, J.

This appeal is taken from a judgment partitioning community property. For the reasons that follow, we affirm in part, amend in part, and remand.

FACTUAL AND PROCEDURAL BACKGROUND

Michael Delahaye and Mary Jo May-field were married on February 27, 1971. At that time, Mr. Delahaye was an agent for New York Life Insurance Company (New York Life), having entered into an agent’s contract with that company on September 16, 1968. He remained an agent of New York Life through the time of the proceedings below.

On April 26, 1999, Ms. Mayfield filed a petition for divorce. Mr. Delahaye filed a separate petition for divorce on August 26, 1999. A judgment of divorce was rendered on October 12, 1999, based on the parties having lived separate and apart for six months. The community of acquets and gains between the parties was terminated retroactively to April 26, 1999. Thereafter, Ms. Mayfield filed a petition for judicial partition of the community property. Following extensive discovery and negotiations, the parties were able to agree on the distribution of some, but not all, disputed items of property. In particular, the parties disagreed as to whether the former matrimonial home and certain payments (referred to as “Senior Nylic”) received by Mr. Delahaye from New York Life after termination of the community were community or separate in nature.

Following a request for injunctive relief by Ms. Mayfield, a consent judgment was rendered in April 2001 ordering Mr. Dela-haye to deposit one-half of the monthly Senior Nylic payments into a joint, interest-bearing escrow account, pending classification of the payments.

Pursuant to agreement of counsel, the parties submitted the issues of the classification of the former matrimonial home and the Senior Nylic payments to |sthe trial court on memoranda. On March 7, 2003, the trial court issued a ruling characterizing the Senior Nylic payments as “renewal commissions” that were community in nature even though received after termination of the community, since they were paid based on policies written during the existence of the community. The court further ruled that Mr. Delahaye bore the burden of proving any claim that he was entitled to more than 50% of these payments because his separate labor and expenses were necessary to keep the policies in effect. Finally, the court ruled the former matrimonial domicile was the separate property of Ms. Mayfield, although subject to Mr. Delahaye’s reimbursement claim for one-half of any community funds used to enhance the property. Both parties filed motions for new trial. In her motion for partial new trial, Ms. Mayfield asserted that, while the court correctly classified the Senior Nylic payments as community property, the court erred in considering these payments to be “renewal commissions.”

Trial was held on March 24 and 27, 2003. At the conclusion, the trial court ruled that Ms. Mayfield was entitled to one-half of all future Senior Nylic payments attributable to policies written during the existence of the community, as well as one-half of all cost-of-living and incremental increases attributable to those policies. Additionally, the court held Ms. Mayfield was entitled to one-half of the Senior Nylic payments received by Mr. Delahaye during the period from May 15, 1999 to March 15, 2001, together with legal interest from the respective dates that each payment was received by Mr. Delahaye. Ms. Mayfield was awarded all of the escrowed Senior Nylic funds, as well as one-half of certain renewal commissions stipulated by the parties to be community (after deduction of expenses Mr. Delahaye proved he incurred to secure the renewals).

In oral reasons, the court held Mr. Dela-haye was not entitled to more than one-half of the Senior Nylic payments because it was not satisfied that any |4servicing of the policies written during the community was necessary to the continuation of the payments. The court believed that, to the extent that there was any servicing of these policies, it was for the purpose of generating new business, and had no effect on the Senior Nylic payments. Finally, pursuant to a joint stipulation, the court ruled Mr. Delahaye was entitled to reimbursement for one-half of the community funds used to build the former family-home.

A written judgment was signed on August 4, 2003. In addition to allocating the various assets and debts of the community, the judgment ordered Mr. Delahaye to pay a total of $269,386.29 to Ms. Mayfield, which amount consisted of an equalizing payment, reimbursement claims, and an accounting between the parties. To facilitate partition of the community, several Qualified Domestic Relations Orders (QDROs) were attached to the judgment, including one dealing with retirement benefits. That QDRO recognized Ms. May-field’s 50% interest as of April 26, 1999, in the “New York Life Retirement Plan for Agents” and the “NYLIC Excess Plan” (hereafter “the retirement plan”), as well as her right to a pro rata share in any cost-of-living increases or other increases attributable to her community interest. Mr. Delahaye has appealed.

ASSIGNMENTS OF ERROR

1. The trial court erred in classifying the Senior Nylic payments as renewal commissions and awarding one-half of these post-divorce payments to Ms. Mayfield, since these payments are actually a salary or commission requiring his continued employment

2. Alternatively, even if the Senior Nylic were properly classified as community property, equity required that his separate labor and costs in keeping the insurance policies in effect be considered in determining the community’s share. The trial court committed manifest error in not proportionally reducing Ms. Mayfield’s share by these costs.

3. The trial court committed manifest error in awarding Ms. Mayfield legal interest from the date Mr. Delahaye received each Senior Nylic payment.

4.The trial court erred in awarding Ms. Mayfield one-half of any future increases in the retirement attributable to post-divorce increases in Senior Nylic payments.

| fi5. The trial court erred in excluding from evidence a summaries prepared by his Mr. Delahaye’s CPA, when the summaries were based on documents already provided to Ms. Mayfield’s attorneys.

Assignments Of Error Numbers One and Two

In these assignments of error, Mr. De-lahaye contends the trial court erred in classifying the Senior Nylic payments as renewal commissions and community property. He argues the payments are his separate property because they constitute current incentive income, rather than renewal commissions. He maintains he must earn these payments by remaining an active agent, servicing existing policies, maintaining records, and meeting certain other contractual requirements. He further complains the partition was inequitable because it granted greater rights to Ms. Mayfield than to him since it allowed her to simultaneously collect Senior Nylic payments and retirement benefits, while he is unable to do so. Alternatively, he contends that, if the payments are community property, Ms. Mayfield’s share should have been reduced in proportion to the post-termination efforts and expenses he incurred to maintain the policies in force.

In response, Ms. Mayfield contends the Senior Nylic payments are not salary for current services, but are based instead on the amount and persistency of policies sold during the marriage. She maintains Mr. Delahaye earned the right to these payments by his past efforts, and he does not have to sell additional insurance, service the existing policies, or do anything else to receive them, other than remaining a New York Life agent.

During the existence of the community, each spouse owns an undivided one-half interest therein. La. C.C. art. 2336. Louisiana Civil Code art. 2338 defines community property as:

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

To the extent that a right to receive proceeds derives from a spouse’s labor and industry during the existence of the community, that right is a community asset, even if the proceeds are received after dissolution of the community. See La. C.C. arts. 2338 and 2369.2; Sims v. Sims, 358 So.2d 919, 921 (La.1978); Futch v. Futch, 26-149, p. 3 (La.App. 2nd Cir.9/23/94), 643 So.2d 364, 367. See also Michel v. Michel, 484 So.2d 829 (La.App. 1st Cir.1986).

A trial court’s finding regarding the nature of property as community or separate is a factual determination subject to the manifest error standard of review. Biondo v. Biondo, 99-0890, pp. 3-5 (La. App. 1st Cir.7/31/00), 769 So.2d 94, 99. Thus, where there is a reasonable factual basis in the record for the trial court’s finding, an appellate court may set it aside only if, after reviewing the record in its entirety, it determines the trial court’s finding was clearly wrong. Where there are two permissible views of the evidence, the fact finder’s choice between them cannot be manifestly erroneous. Biondo, 99-0890 at p. 5, 769 So.2d at 99.

In the instant case, the record reveals that Nylic is a contractual incentive plan whereby New York Life pays monthly supplemental payments in addition to regular commissions to its eligible agents. The payment amount is calculated in accordance with a formula based on the duration of the agent’s membership in Nylic and the amount of qualifying insurance sold by the agent in specified prior years that has remained in force. To be eligible for Nylic membership an agent must:

1) remain an agent with the company;
2) procure $250,000 in new insurance each year upon which premiums have been paid and received by the company (an agent is exempted from this requirement after completion of thirty years in Nylic);
3) comply with all the terms, provisions, conditions, and rules of the Nylic contract;
|74) not engage in any other business or occupation for remuneration or profit without the company’s written consent; and
5) not represent any other insurance company.

An agent’s membership in Nylic is terminated if he fails to meet the above requirements, is not longer an agent for New York Life, retires, begins receiving physical disability income, or dies.

After 20 consecutive years of membership in Nylic, an agent is entitled in his 21st year to become a member of the Senior Nylic plan, which includes enhanced benefits that take into consideration the amount and persistency of qualifying insurance written by the agent in the prior 20-year period. Additionally, beginning in the agent’s 26th year, and every five years thereafter, the agent is entitled to an increase in the amount of Senior Nylic payments received based on the amount and persistency of qualifying insurance sold during the preceding 10 years. After an agent has completed 30 years of membership, he is exempt from the requirement of selling $250,000 of qualifying insurance each year.

The deposition of Justin Huber, an agent benefits consultant with New York Life, was introduced at trial. Mr. Huber explained the following details of the Nylic plan. After an agent passes each of the milestone dates noted (i.e., 21st year, 26th year, 30th year, etc.) and his monthly payment amount is calculated, he is entitled to the payments as long as he meets the requirements noted above. The amount cannot be reduced unless one of the policies upon which the calculation is based is rescinded. Moreover, an agent is not required to service the policies upon which his Senior Nylic payments are based to receive the payments. Since the Senior Nylic payments are based on past productivity and persistency, they are not |Raffected if the policies upon which the payments are based lapse or are not renewed after the milestone date has passed. Regarding the instant case, Mr. Huber indicated that basically all Mr. De-lahaye has to do to receive Senior Nylic payments is to remain an agent in good standing and operate under the Nylic contract. Mr. Delahaye is not required to sell additional insurance or service the existing policies.

Mr. Delahaye became a Senior Nylic member in October 1988. He received an incremental increase in October 1993, and another in October 1998, upon completion of his 30th year. At the time the community regime terminated, he was receiving over $16,200 per month in Senior Nylic payments. He contends these payments are his separate property because they are compensation for his current efforts in servicing existing policies, maintaining required records, and handling correspondence to and from policyholders and New York Life.

The trial court concluded the Senior Nylic payments were community in nature. The court further found that servicing of the policies sold during the community was not a requirement for receiving the payments. The court believed servicing of the policies had no effect on the current Senior Nylic payments, and was done primarily for the purpose of generating new business. To the extent that any servicing of the policies was required, the court believed it was covered by the persistency bonus paid annually by New York Life for the purpose of defraying expenses. Accordingly, the court divided the payments equally between the parties.

IsAfter careful consideration of the Nylic plan and the arguments of counsel, we find no manifest error in the trial court’s conclusions that the Senior Nylic payments, insofar as attributable to policies sold and maintained in force during the existence of the community (“community policies”), were a community asset under La. C.C. art. 2338, even though the payments were received after termination of the community. These payments are not compensation for current services performed by Mr. Delahaye. The calculation formula for Senior Nylic payments is based on the amount and persistency of insurance sold in previous years only, without any consideration of current or future services. Mr. Delahaye was receiving over $16,200 per month at the time of trial based on 30 years of prior membership in Nylic, 27/£ of which were during the existence of the community. The entire amount of the payments was attributable to policies sold and maintained in force during the marriage, with the exception of $48.65 per month. Thus, except for the minuscule portion attributable to policies sold before the parties’ marriage, Mr. De-lahaye acquired the right to receive the Senior Nylic payments based on labor, skill, and industry exerted during the existence of the community. Having earned the right to these payments during the community regime, Mr. Delahaye is entitled to them as long as he remains a New York Life agent and meets the general requirements of the Nylic contract. There is no requirement that he sell additional insurance. Further, even if the policies upon which the payments are based lapse, it would not affect Mr. Delahaye’s right to |1(1receive the payments at their current level. These payments can be reduced only if a policy is rescinded, which has never happened to Mr. Delahaye.

Although Mr. Delahaye claimed servicing of the existing policies was a requirement for the payments, and stated that he and his staff spend a considerable amount of time servicing existing policies, the trial court rejected this contention. The court concluded servicing of the policies was not a requirement for receiving Senior Nylic payments. We find no manifest error in this conclusion, which is amply supported by the record. The terms of the Nylic contract itself impose no such requirement. Moreover, the deposition testimony of Mr. Huber clearly indicated servicing of the policies was not a requirement for receiving payments. Finally, the court’s conclusion is strongly supported by the fact that the lapse or non-renewal of the policies upon which the payments are based will not cause a reduction in the payments. The record clearly establishes that the Senior Nylic payments are compensation for Mr. Delahaye’s past performance and services to the company, almost all of which occurred during the existence of the community. Accordingly, we find no manifest error in the trial court’s classification of the Senior Nylic payments as an asset of the community to be divided equally between the parties (with the exception of the small portion attributable to policies sold prior to the existence of the community).

Mr. Delahaye contends the Supreme Court’s recent decision in Ross v. Ross, 02-2984 (La.10/21/03), 857 So.2d 384, supports his position that the post-divorce Senior Nylic payments are his separate property because of the efforts he must continually exert to keep these policies in force. In Ross, the Supreme Court held that renewal commissions received during an insurance agent’s marriage were the result of the agent’s effort, skill, and industry during the existence of the marriage, and were therefore community in nature, even though he originally sold the policies before the marriage. The Supreme Court reasoned the renewal commissions would have dropped significantly had the agent not exerted substantial effort to service the In existing policies and satisfy the needs of his existing policyholders so as to encourage renewals.

The instant case is distinguishable from Ross because the compensation provided by the Nylic contract differs substantially from the renewal commissions at issue in Ross. In that case, the agent received no payment if the existing policies were not renewed. Thus, it was crucial that he exert continuous effort, skill, and industry to ensure renewal of the policies. In contrast, Mr. Delahaye’s current Senior Nylic payments are not affected if the policies upon which they are based are not renewed, since the payments are based on past sales and persistency. As Mr. Huber explained, the only thing that could cause a reduction in these payments is rescission of a policy, which had never occurred. Servicing of these policies by Mr. Dela-haye is not a requirement for continuation of the payments. Thus, while servicing the policies and “schmoozing” the policyholders might be important to Mr. Dela-haye for the purpose of earning renewal commissions and generating new business, it is not a requirement for Senior Nylic payments, nor will the non-performance of these services cause a reduction in the payments.

The situation is somewhat different with respect to future increases in Senior Nylic payments, in which Ms. Mayfield was awarded a proportionate share to the extent they are attributable to community policies. Mr. Delahaye was scheduled to receive his next increase shortly after trial in October 2003. The amount of the increase depended upon the amount of insurance sold and maintained in force during the prior ten years, part of which was post-termination. To the extent that it was shown that any portion of the increases were attributable to Mr. Delahaye’s post-termination efforts and costs in servicing the community policies, he would be entitled to deduct that amount from the payments. However, Mr. Delahaye bore the burden on establishing at trial that he is entitled to more than one-half of the increases attributable to the community policies due to his post-termination efforts h?,and expenses. Cf. Futch, 26-149 at p. 6, 643 So.2d at 368; Lee Hargrave, Matrimonial Regimes, 53 La.L.Rev. 877, 889 (1993).

At trial, Mr. Delahaye testified he spent considerable time servicing existing policies. His present wife, Cristy Delahaye, who works with him at the agency, gave similar testimony. Further, an employee, Susan West, stated that she spent approximately 80% of her time in service-related activities. However, no one gave any indication of how much of this service work was related to the particular community policies considered in calculating the incremental increases. Mr. Delahaye admitted it was possible to determine what servicing had previously been done on particular files, but no such information was provided regarding the community policies. Further, both Mr. Delahaye and Cristy Dela-haye testified that his primary efforts were directed toward generating new business. For this work, Mr. Delahaye receives substantial first year commissions, as well as renewal commissions for several years if the policies are renewed. In the complete absence of any evidence quantifying the amount of servicing and expenses necessary to maintain the community policies during the applicable period, Mr. Delahaye failed to meet his burden of proving he was entitled to more than one-half of the increases attributable to these policies.

Further, the mere fact that Mr. Dela-haye is required to remain a New York Life agent in order to receive the Senior Nylic payments does not defeat their community nature. See Michel, 484 So.2d at 835. Nor are the requirements that an agent not represent any other insurance company or engage in another business without permission sufficient to defeat the community nature of the payments in this ease. At the time of trial, Mr. Delahaye had permission from New York Life to conduct a separate brokerage business selling insurance through other companies. In fact, he had formed a company for this purpose, which operated as a limited liability corporation. While he testified he did not conduct much such business, the crucial fact is that he was not prohibited from doing so.

11sThe present situation is similar to that in Michel, where after the dissolution of the community the husband received “Factor 1” commissions from his employer. These commissions were based on the efforts of sales agents that the husband previously recruited and trained for the company. Even though the commissions were received after the termination of the community, they were held to be a community asset since the husband completed the recruitment and training of the agents and the contracts of the agents were executed during the existence of the community. The fact that the husband had to continue working for the company in order to receive the “Factor 1” commissions was held not to defeat their community nature. Michel, 484 So.2d at 834-35.

We are equally unpersuaded by Mr. Delahaye’s contention that the payments were not subject to partition and are his separate property, because he did not have a “vested” right in them at the time the community terminated. It is not essential that a right be vested before it can be classified as a community asset subject to partition. Futch, 26-149 at p. 3, 643 So.2d at 367; Lee Hargrave, Matrimonial Regimes, 53 La.L.Rev. 877, 887-888 (1993). See also Due v. Due, 342 So.2d 161 (La.1977). To the extent that proceeds are attributable to a right acquired during the existence of the community through a spouse’s labor, skill, and industry, the proceeds are community in nature. Futch, 26-149 at p. 3, 643 So.2d at 367.

Finally, Mr. Delahaye argues it is inequitable that Ms. Mayfield has the right to simultaneously collect Senior Nylic payments and retirement benefits. The QDRO issued by the trial court with re-spect to Ms. Mayfield’s share of the retirement benefits provides that payments shall begin “as soon as administratively lupossible after the death or retirement of the participant [Mr. Delahaye] or earlier in accordance with the Plan, but solely at the payee’s [Ms. Mayfield’s] option.” (Emphasis added.) By contrast, under the terms of the Nylic contract, Mr. Dela-haye’s Senior Nylic payments will cease upon his retirement. Thus, he is precluded from receiving both at the same time. While Mr. Delahaye concedes Ms. May-field is entitled to her proportionate share of the retirement, he argues the trial court’s judgment allows her to attain double his monthly income, resulting in an inequitable partition of the community.

Normally, a non-employee spouse is entitled to receive benefits from a retirement plan, “if, and when” benefits become payable to the employee spouse. Wright v. Wright, 99-1953, p. 3 (La.App. 1st Cir.11/3/00), 770 So.2d 524, 526. In order to ensure fairness when departing from this rule, the following requirements must first be met: (1) the number of creditable years of service under the plan is determinable; (2) the final average earnings figure of the employee spouse can be computed; (3) the employee spouse is entitled to retire; (4) the non-employee spouse is willing to waive the right to future increases in order to receive immediate benefits; and (5) the court is able to structure the QDRO so that the non-employee spouse will receive no greater benefits than she would receive if required to wait until the employee spouse retires. Wright, 99-1953 at p. 3, 770 So.2d at 526; Halverson v. Halverson, 589 So.2d 1153 (La.App. 5th Cir.1991), writ denied, 600 So.2d 655 (1992).

The record does not establish whether these requirements were met in this case. Under these circumstances, we cannot determine whether the trial court erred in structuring the QDRO to allow Ms. May-field the right to begin drawing retirement benefits immediately if permitted by the retirement plan. Accordingly, this matter will be remanded to the trial court, which is ordered to hold a hearing to determine whether the requirements delineated in Wright and Halverson are present in this case. If the trial court determines these requirements are met, it 11fishall amend the QDRO so that Ms. Mayfield is not entitled to share in any future increases in retirement benefits and to ensure that she will receive no greater benefits than if she had been required to wait until Mr. Delahaye retired to draw retirement benefits. If the trial court determines these requirements are not met, it is ordered to amend the QDRO to delete the language allowing Ms. Mayfield the right to begin receiving benefits immediately if so permitted by the retirement plan. In all other respects, these assignments of error are without merit.

Assignment Of Error Number Three

The trial court awarded Ms. Mayfield legal interest on her share of each Senior Nylic payment received by Mr. Delahaye between the termination of the community and April 2001 from the date each respective payment was received by him. On appeal, Mr. Delahaye argues no interest was due on these payments until they were determined by judgment to be community property. In response, Ms. Mayfield contends the prejudgment interest was part of her reimbursement claim, since Mr. Dela-haye deprived her of the use of these community funds.

In Reinhardt v. Reinhardt, 99-0723, p. 6 (La.10/19/99), 748 So.2d 423, 426, the Supreme Court held interest on an equalizing payment is not due until the date of the partition judgment, even when a substantial portion of the payment is attributable to a reimbursement claim. The court reasoned that, because of the conflicting claims of the parties and the contingencies involved in determining whether those claims will be recognized, both equalizing payments and reimbursement claims are not ascertainable and due until they are recognized by a judgment of partition. Reinhardt, 99-0723 at p. 6, 748 So.2d at 425-427.

The present situation is analogous to Reinhardt. The parties herein strenuously disputed the proper classification of the Senior Nylic payments. This matter also involved other disputed assets and several reimbursement claims between the parties, with each found to owe reimbursement to the other for various items. Given these circumstances, we do not believe any portion of the amount |1(iMr. Delahaye was eventually ordered to pay to Ms. Mayfield (which included sums for an equalizing payment, reimbursement claims, and an accounting) was ascertainable until it was recognized by the partition judgment. Thus, applying the rationale of Reinhardt, interest should have been awarded only from the date of judgment, because the amount owed was not ascertainable and due until that date. See Reinhardt, 99-0723 at pp. 4-7, 748 So.2d at 425-27. See also Howes v. Howes, 93-2366, p. 10 (La. App. 4th Cir.5/26/94), 637 So.2d 1282, 1289.

Ms. Mayfield relies on Palmer v. Palmer, 29,495 (La.App.2d Cir.5/7/97), 693 So.2d 1226, in arguing prejudgment interest was properly awarded. In that case, the plaintiff was awarded one-half of all mineral royalties payments received by her former husband during the pendency of the partition proceedings, with interest on her share of each payment from the date of its receipt. In reaching this holding, the court stated:

The issue of interest which these mineral revenues could have earned is properly viewed as Ms. Palmer’s damages under La. C.C. art.2000 for the delay which she suffered for Mr. Palmer’s refusal to recognize her ownership in the mineral interests and to pay her for the revenues derived therefrom. The critical fact is that Mr. Palmer received the co-owned revenues or “products” during the pendency of an action in which he ultimately did not prevail. Palmer, 29,-495 at p. 4, 693 So.2d at 1228-29.

We do not agree with this rationale. Louisiana Civil Code art.2000 authorizes an award of prejudgment interest from the time the sum is due when the object of the performance is a sum of money. In this case, the amount of each monthly Senior Nylic payments was known. However, due to the numerous contingencies involved in resolving the conflicting claims, the amount ultimately owed by Mr. Dela-haye was not ascertainable and due until it was recognized in the partition judgment. The trial court erred in awarding prejudgment interest.

| ^Assignment Of Error Number Four

While conceding Ms. Mayfield is entitled to a proportionate interest in his retirement benefits as of April 26, 1999, Mr. Delahaye argues the trial court erred in awarding her a share in future increases in these benefits. He asserts these increases are based solely on his post-termination efforts, skill, and industry in which she has no right to share. Additionally, he contends the trial court failed to adjust Ms. Mayfield’s proportionate share to account for changes in the distribution of benefits between the qualified and non-qualified portions of the plan, since the qualified portion will continue to increase the longer he remains with the company.

The retirement plan is a combination qualified/non-qualified plan. The plan allows an agent’s benefits to naturally increase over the time he is with the company. However, under the “Best of All Worlds” calculation, if his Senior Nylic payments at the time of retirement are greater than the benefits he is entitled to under the qualified plan, the difference will be paid from the non-qualified excess plan, so that his total retirement benefits are equal to the Senior Nylic payments he was receiving. Thus, the amount to be paid under each portion of the plan varies depending on an agent’s length of service and the amount of Senior Nylic payments he is receiving at the time of retirement.

In the QDRO issued by the trial court, Ms. Mayfield was awarded the following interest:

A 50% interest as of April 26, 1999, in the NYLIC Retirement Plan and NYL-IC Excess Plan ... standing in the name of Michael T. Delahaye ... which community share as of April 26, 19999, shall be calculated pursuant to the New York Life Retirement Plan for Agents and the NYLIC Excess Plan “Best of All Worlds” calculation would be approximately $16,441.09 per month as of the date of this judgment (100%) and accordingly, the share of said amount shall be paid to Mary Jo Delahaye monthly pursuant to the provisions of the paragraph shall be a combined benefit of approximately $8,220.54 per month, if it were payable today, but which figure shall be adjusted hereafter in accordance with this order; [Mary Jo Dela-haye] shall also receive her 50% share as above calculated, of any proportional interest ... and to any and all costs of living increases (prorate) ... l1sand any and all other increases attributable to her share due to subsequent increases in Sr. NYLIC as they relate to her community interest and the “Best of All Worlds” calculation ....

Based on our examination of the language of this order, we find no merit in Mr. Delahaye’s contentions, which appear to be based on the erroneous assumption that Ms. Mayfield will share in all future increases in his retirement benefits. The trial court awarded her a share of only those increases attributable to her community interest. She is not entitled to any portion of the increases attributable to policies sold post-termination. Additionally, we believe the QDRO properly accounts for the potential change in distribution of benefits between the qualified and non-qualified plans, since it specifically provides that Ms. Mayfield’s share, including any future increases, should be calculated pursuant to the “Best of All Worlds” calculation.

Assignment Of Error Number Five

Finally, Mr. Delahaye argues the trial court erred in excluding several charts summarizing income to expense ratios for his insurance agency, and the testimony of his CPA, Kenneth Daigrepont, based on the charts. He maintains he was entitled to introduce this evidence under La. C.E. art. 1006, which provides that “otherwise admissible voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation.” He claims the excluded evidence was critical to establish Ms. May-field’s share of the Senior Nylic payments should be reduced to account for the fact that 72% of his post-divorce expenses are directly related to maintaining the existing policies.

During direct examination of Mr. Daig-repont, counsel attempted to introduce charts prepared by the witness that summarized income to expense ratios for Mr. Delahaye’s insurance agency. When opposing counsel objected because he had never before seen the charts, counsel for Mr. Delahaye first responded, “I thought I’d get away with it.” He then argued he was not required to provide | ^opposing counsel with copies of the charts because they merely included calculations based on income taxes returns previously provided in discovery. The trial court refused to admit the charts or allow Mr. Daigrepont to utilize them since the charts were not listed on the pre-trial order and opposing counsel had no opportunity to prepare for cross-examination on them. The court indicated Mr. Daigrepont could testify using the tax returns from which the calculations were derived. However, counsel chose to instead proffer the charts and Mr. Daigre-pont’s related testimony in the form of a deposition.

The pre-trial order controls the subject and course of an action unless modified at trial to prevent manifest injustice. Much discretion is left to the trial judge in determining whether to modify the pre-trial order. Harper v. State Farm Mutual Automobile Insurance Company, 484 So.2d 737, 740 (La.App. 1st Cir.), writ denied, 489 So.2d 246 (La.1986). A trial court’s evidentiary rulings will not be disturbed on appeal absent a clear abuse of that discretion. Roberts v. Owens-Corning Fiberglas Corp., 03-0248, p. 18 (La. App. 1st Cir.4/02/04), 878 So.2d 631, 646.

Our review of the record reveals no abuse of discretion. Counsel offered no explanation for failing to list the charts as exhibits in the joint pretrial order or adding them through amendment prior to trial. Further, there has been no showing that Mr. Delahaye was prejudiced by the exclusion of this evidence. The trial court allowed counsel the opportunity to pursue his line of questioning using the tax returns, rather than the charts, but counsel chose not to do so. Regardless, to establish he was entitled to more than 50% of the Senior Nylic payments due to expenses he incurred post-termination, Mr. Dela-haye was required to show, not merely the amount of expenses incurred and their ratio to his income, but specifically that the expenses were expended to service a community asset. See Futch, 26-149 at p. 6, 643 So.2d at 368. Evidence of income to expense ratios, without any delineation between expenses incurred for community policies and 120those incurred for new policies or to generate new business, would have been of little, if any, value to the trial court. Accordingly, the trial court did not abuse its discretion in disallowing this evidence.

CONCLUSION

For the above reasons, the trial court judgment is amended to delete the award to Ms. Mayfield of prejudgment interest on her one-half share of each Senior Nylic payment received by Mr. Delahaye from May 1999 through March 2001. Further, this matter is remanded to the trial court with instructions to hold a hearing in accordance with the views expressed herein. The judgment of the trial court is affirmed in all other respects.

AFFIRMED IN PART; AMENDED IN PART; AND REMANDED WITH ORDER.

      . Ms. Mayfield's right to resume use of her maiden name was acknowledged in the divorce judgment.

      . A small portion of the monthly payments was attributable to policies sold by Mr. Dela-haye prior to the marriage of the parties. That portion was designated as his separate property.

      . Mr. Huber explained that "rescinded” meant that New York Life refunded the full premium to the policyholder and the agent returned any compensation he received from New York Life for the policy.

      . Mr. Huber stated that a "lapsed” policy is one that, although it remained in force through the pertinent milestone date under the Nylic calculation formula, it is no longer a premium-paying policy.

      . The lapse or non-renewal of a policy will not always affect even a future increase, since the increases are based on the amount and persistency of policies obtained in specific years designated in the Nylic contract. For example, the increase due at the beginning of an agent’s 31st Nylic year is based on his performance in Nylic years 21-30, the increase in the 36th Nylic year is based on Nylic years 26-35, and so on. Thus, in calculating the increase due at the beginning of an agent's 36th year, only the lapse or non-renewal of a policy originally obtained in Nylic years 26-35 will affect the increase. If the policy was originally obtained in Nylic years 1-25, its lapse or non-renewal will have no effect.

      . We likewise find no merit in Mr. Delahaye's assertion that the trial court committed legal or manifest error in referring to the Senior Nylic payments in the prior ruling as renewal commissions. Both parties filed motions for new trial from that ruling. In rendering judgment after trial, it is clear the trial court recognized that the Senior Nylic payments were distinct from renewal commissions, since it made separate disposition of the Senior Nylic payments and of the renewal commissions. The record reflects the trial court’s judgment was based on its conclusion that the Senior Nylic payments were attributable to Mr. Delahaye's efforts, skill, and industry during the existence of the community, rather than after its termination.

      . The trial court held the portion of the payments attributable to policies sold before the parties' marriage was Mr. Delahaye’s separate property.

      . Ms. Mayfield argues the instant appeal does not include the QDRO dealing with retirement benefits, because Mr. Delahaye did not appeal it. We disagree. Since the QDRO was specifically incorporated in the judgment as an attachment, we believe the QDRO was included in the appeal of the partition. Further, the QDRO was rendered to facilitate the partition and was signed on that same date. Appeals are favored in the law. Fraternal

        Order of Police v. City of New Orleans, 02-1801, p. 2 (La.11/8/02), 831 So.2d 897, 899. Under these circumstances, the QDRO can be reviewed in the instant appeal. Cf. Seivers v. Epoch Well Logging, Inc., 03-0282, p. 3, n. 4 (La.App. 1st Cir. 12/31/03), 868 So.2d 732, 734 n. 4, writ denied, 04-0314 (La.4/2/04), 869 So.2d 892; dela Vergne v. dela Vergne, 99-0364, p. 3 (La.App. 4th Cir. 11/17/99), 745 So.2d 1271, 1273.

      . We note that the Supreme Court specifically held in Reinhardt that La. C.C. art. 2000 was not applicable to reimbursement claims. Reinhardt, 99-0723 at p. 6, n. 1, 748 So.2d at 426 n. 1.


source: Caselaw Access Project

author: CHARLES R. JONES, Judge.

license: Public Domain

text:
    ACORN COMMUNITY LAND ASSOCIATION OF LOUISIANA, INC. v. Reginald ZENO in his Capacity as the Director of The Department of Finance for the City of New Orleans; Congregation of St. Peter Claver Roman Catholic Church.
    No. 2005-CA-1489.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 21, 2006.
    Rehearing Denied Sept. 15, 2006.

      Mark Moreau, New Orleans Legal Assistance, New Orleans, LA, for Plain-tiffiAppellee.
    F. Evans Schmidt, Denechaud and De-nechaud, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge CHARLES R. JONES, Judge PATRICIA RIVET MURRAY, and Judge EDWIN A. LOMBARD).
   CHARLES R. JONES, Judge.

hThe Appellant, the Congregation of St. Peter Claver Roman Catholic Church (“St. Peter Claver”), seeks review of the district court’s judgment denying its Exceptions and granting a Writ of Mandamus ordering the City of New Orleans to grant redemption of certain immovable property sold at a tax sale. We affirm.

Statement of Facts

The Appellee, ACORN Community Land Association of Louisiana (“ACORN”), sold immovable property in the city of New Orleans designated 1027-29 No. Roman St. to Bufford Magee by credit sale on May 9, 1994. Mr. Magee executed a promissory note to ACORN for $4,000, payable in 40 equal monthly installments beginning on June 1, 1994. The final payment on the note was originally due September 1, 1997. Mr. Magee, however, became delinquent in his payments and last made a payment on the note on January 23, 2001, which left an unpaid balance on the note of $2,800.

In November 2003, by which time Mr. Magee was deceased, the City of New Orleans sold 1027-29 No. Roman St. to Harold Valerio at a tax sale for ^unpaid real estate taxes. Mr. Valerio and his wife later sold the tax deed to the Appellant, St. Peter Claver, by cash sale.

In January 2005, ACORN made demands upon St. Peter Claver to grant a tax sale redemption of 1027-29 No. Roman St. These demands were refused. In March 2005, ACORN made a written request that Reginald Zeno, in his capacity as the Director of the Department of Finance for the City of New Orleans, redeem the tax sale of 1027-29 No. Roman St. upon ACORN tendering the requisite payments. This request was never answered.

Procedural History

ACORN filed a petition on April 11, 2005, seeking a writ of mandamus compelling Mr. Zeno, in his capacity as Director of the Department of Finance for the City of New Orleans, to comply with his ministerial duties under La. R.S. 47:2222, by issuing a certificate of redemption for the tax sale of 1027-29 No. Roman St. Concurrent with the filing of this petition, ACORN deposited funds into the Court’s registry in excess of the estimated taxes, interest, and other payments required to redeem the property. St. Peter Claver was named as a defendant due to its inchoate interest as holder of the tax deed to the immovable property at issue.

St. Peter Claver filed exceptions of no right of action, mootness, and prescription in response to ACORN’s petition. The district court denied these exceptions and rendered judgment in favor of ACORN. The Writ of Mandamus |sordered Mr. Zeno, in his official capacity, to issue a certificate of redemption to ACORN and to otherwise complete the redemption of the tax sale of 1027-29 No. Roman St. From this judgment St. Peter Claver appeals asserting four assignments of error.

Discussion

Assignment of Error Number 1:

In its first assignment of error, St. Peter Claver claims the district court erroneously denied its Exception of No Right of Action. We disagree. Determination of whether the plaintiff has a right of action is a question of law. Ralph v. City of New Orleans, 04-1270 (La.App. 4 Cir. 12/14/05), 921 So.2d 988, 995, writ granted and reversed in part on other grounds, 06-0153 (La.5/5/06), 928 So.2d 537. Appellate review of questions of law is simply to determine whether the district court was legally correct or legally incorrect. Id. at 996.

The function of a no right of action exception is to determine whether the plaintiff belongs to a class of persons to whom the law grants the cause of action asserted in the suit. Industrial Companies, Inc. v. Durbin, 02-0665, p. 11 (La.1/28/03), 837 So.2d 1207, 1216. The no right of action exception assumes that the petition states a valid cause of action for some person. Id. at 12, 837 So.2d at 1216. The exception does not raise the question of the plaintiffs ability to prevail on the merits of the case. Wallace Drennan, Inc. v. Sewerage & Water Board, 98-2423, p. 5 (La.App. 4 Cir. 9/22/99), 753 So.2d 861, 864. When the excepting defendant fails to present any evidence supporting the no right of action exception, the court must decide, |4based solely on the plaintiffs allegations, whether the plaintiff belongs to the class of persons to whom the law grants the asserted cause of action. Industrial Companies, Inc. v. Durbin, supra. Thus, as St. Peter Claver failed to present evidence supporting the exception, ACORN’s allegations alone must form the basis of the court’s decision.

This lawsuit is an action for mandamus compelling redemption of property sold by tax sale. This Court has previously noted that Louisiana law favors redemption of property sold for unpaid taxes. Harris v. Guardian Funds, Inc., 425 So.2d 1322, 1326 (La.App. 4 Cir.1983). Such redemption is governed in this case by La. R.S. 47:2221 et seq. In pertinent part, La. R.S. 47:2222(B) provides that “the owner or any person interested personally, or as heir, legatee, creditor or otherwise, may redeem a lot or parcels of ground[.]” The text expressly names creditors (without using modifying language such as “mortgage” or “judgment”) as persons permitted to redeem property sold for unpaid taxes. Id.

ACORN alleged in its petition that it is a creditor of the tax debtor by virtue of the unpaid balance remaining on the promissory note executed by Mr. Magee. Absent evidence to the contrary, this allegation sufficiently places ACORN within the class of persons to whom the law grants the cause of action for redemption. Accordingly, we find that the district court was legally correct and properly denied the Appellant’s Exception of No Right of Action.

Assignment of Error Number 2:

In its second assignment of error, St. Peter Claver claims that the district court erroneously denied its Exception of Prescription. We disagree. In reviewing a peremptory exception of prescription, an appellate court will review the entire record to determine whether the district court’s finding of fact was manifestly |fierroneous. Katz v. Allstate Insurance Company, 04-1133, p. 2 (La.App. 4 Cir. 2/2/05), 917 So.2d 443, 444. Further, the standard controlling review of a peremptory exception of prescription requires that this Court strictly construe the statutes against prescription and in favor of the claim that is said to be extinguished. Id.

Actions to redeem property are timely when brought within three years of the recordation of the tax sale in the conveyance office. La. Const. Art. 7, § 25(B); Hamilton v. Royal International Petroleum Corp., 05-846, p. 1 (La.2/22/06), 934 So.2d 25. In the case sub judice, the tax sale of 1027-29 No. Roman St., to Mr. Valerio was recorded on February 5, 2004, and again on March 25, 2004. ACORN filed this action for redemption on April 11, 2005, which is clearly within three years of either recordation of the tax sale. Accordingly, we find that the district court committed no manifest error and properly denied the Appellant’s Exception of Prescription.

St. Peter Claver argues that the mandamus action has prescribed because the promissory note executed by Mr. Magee has prescribed on its face. This argument is misplaced, however. The thrust of the argument is not that the mandamus action has prescribed, but rather that prescription of the promissory note defeats ACORN’s status as a creditor and, thus, the right of action. This argument, even viewed as an exception of no right of action, fails as well in that, under the given facts, the promissory note had not fully prescribed at the time this suit was filed.

Liberative prescription is a mode of barring actions as a result of inaction for a period of time. La. C.C. art. 3447. Actions on promissory notes are subject to a liberative prescription of five years from the day payment is exigible. La. C.C. art. 3498. Prescription is interrupted, however, when one acknowledges the right of [(¡the person against whom he had commenced to prescribe. La. C.C. art. 3464. If prescription is interrupted, the time that has run is not counted, and prescription commences to run anew from the last day of interruption. La. C.C. art. 3466. The Louisiana Supreme Court has noted that acknowledgment interruptive of prescription results from any act or fact which contains or implies the admission of the existence of the right. Plaquemines Parish Government v. River/Road Const. Inc., 01-2222, p. 7 (La.App. 4 Cir. 8/28/02), 828 So.2d 16, 22, writ denied, 02-2456 (La.11/22/02), 829 So.2d 1055, citing Lima v. Schmidt, 595 So.2d 624, 633 (La.1992). Furthermore, acknowledgement may be made verbally, in writing, by partial payment, by payment of interest or by pledge, or in other ways; or it may be implicit or inferred from the facts and circumstances. Id. at p. 8, 828 So.2d at 22, citing Gary v. Camden Fire Ins. Co., 96-0055, (La 7/2/96), 676 So.2d 553, 556.

The final payment on the promissory note executed by Mr. Magee was originally due September 1, 1997. On its face, then, the note would have fully prescribed in September of 2002. However, Mr. Ma-gee made a partial payment of the outstanding balance on the note on January 23, 2001. This partial payment had the legal effect of an acknowledgement interrupting prescription. Thus, prescription that had theretofore run is not counted, and the prescriptive period began anew from the date of partial payment. Accordingly, we find that ACORN was a creditor of Mr. Magee whose action was not barred by liberative prescription.

Assignment of Error Number S:

In its third assignment of error, St. Peter Claver claims the district court erroneously denied its Exception of Mootness. We disagree. A reviewing court should apply the clearly wrong or manifest error rule prescribed generally for |7appellate review in deciding whether to affirm the factual findings of the district court. Walters v. Department of Police of City of New Orleans, 454 So.2d 106, 113 (La.1984). St. Peter Claver argues that ACORN’s action is moot because the Appellant conditionally offered to pay any legally enforceable obligation owed by Mr. Magee or his Succession to ACORN. St. Peter Claver even deposited $2,800, the outstanding balance claimed on the promissory note executed by Mr. Magee, into the court’s registry on May 23, 2005. This conditional deposit, however, did not render the action for redemption moot.

As St. Peter Claver correctly notes, a case is considered moot when judgment will serve no useful purpose and give no practical relief. Louisiana Associated General Contractors, Inc. v. State through Div. of Admin., Office of State Purchasing, 95-2105 (La.3/08/96), 669 So.2d 1185, 1193. The judgment rendered by the district court, however, both serves a useful purpose and gives practical relief. As previously noted, Louisiana law favors redemption of property sold for unpaid taxes. Harris v. Guardian Funds, Inc., 425 So.2d 1322, 1326 (La.App. 4 Cir.1983). The result of such redemption is to restore property to the tax debtor. Dufour v. Wood, 346 So.2d 863, 867 (La.App. 4 Cir. 1977). Thus, in the instant case, successful redemption will restore 1027-29 No. Roman St. to the heirs of Mr. Magee, and this is precisely the relief sought by ACORN. St. Peter Claver’s conditional deposit, or even payment to ACORN, does not restore the property to the tax debtor, which is the result favored by the laws of our state. We therefore find that the district court committed no manifest error and properly denied the Appellant’s Exception of Mootness.

Assignment of Error Number ⅛:

In its fourth assignment of error, St. Peter Claver claims the district court | ^erroneously ruled in its judgment that ACORN was the tax debtor. This assignment of error appears to be the result of a misunderstanding. The judgment states in pertinent part:

IT IS FURTHER ORDERED that the alternative writ of mandamus issued herein on April 11, 2005, is made peremptory; and accordingly, defendant, Reginald Zeno in his official capacity as the Director of Finance for the City of New Orleans, is ordered to (1) immediately issue a certificate of redemption for the real estate located at 1027-29 No. Roman St., New Orleans, Louisiana to plaintiff, ACORN Community Land Association of Louisiana, Inc., in accordance with La. R.S. 47:2222, which acknowledges receipt of the redemption payment and declares the property redeemed to the tax debtor, (2) to cause a notice of the redemption to be entered on the records of his office, and (3) to take all other required actions to complete the redemption of 1027-29 No. Roman St., which is more fully described as: ...

In the ease sub judice, the tax debtor is Mr. Magee or his estate. According to the judgment, although the certificate is ordered to be issued to ACORN, the property is to be declared redeemed to the tax debtor. This is in accord with La. R.S. 47:2222, which provides that redemption by a creditor or other interested person results in the property being redeemed to the tax debtor. We find no error in the district court’s judgment and find that the Appellant’s fourth assignment of error is also without merit.

Decree

For the reasons assigned herein, we affirm the district court judgments. All costs of this appeal are assessed to St. Peter Claver Roman Catholic Church.

AFFIRMED.

      . Although the sale was in November 2003, the tax deed to Mr. Valerio was recorded in the Orleans conveyance office on February 5, 2004, under Notarial Archives No.2004-06949 and again on March 25, 2004, under Notarial Archives No.2004-15084.

      . This cash sale to St. Peter Claver was dated November 4, 2004, and was recorded under Notarial Archives No.2004-56585.

      .As the City failed to provide the precise figures required to redeem 1027-29 No. Roman, ACORN estimated the taxes, costs, penalty, and interest to be $1,302.76. ACORN subsequently deposited $1,450 into the Court’s registry.

      . Although this issue is not briefed, the Appellant indicates in the initial assignments of error that "it is believed this may have been a clerical error." He is mistaken.


author: JAMES F. McKAY, III, Judge.

text:
    David and Ilonka BAND v. AUDUBON PARK COMMISSION.
    No. 2005-CA-0937.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 12, 2006.

      David Band, New Orleans, Louisiana, In Proper Person and for Plaintiff/Appellants.
    Henry W. Kinney, III, Tara E. Clement, Kinney & Ellinghausen, New Orleans, Louisiana, for Defendant/Appellee.
    (Court composed of Judge JAMES F. McKAY III, Judge, TERRI F. LOVE, Judge, LEON A. CANNIZZARO, JR.).
   JAMES F. McKAY, III, Judge.

LThis ⅛ an appeal of the trial court’s judgment granting the Audubon Park Commission’s motion for summary judgment against David and Ilonka Band. For the reasons set forth below, we affirm.

FACTS AND PROCEDURAL HISTORY

The Audubon Park Commission (Audubon) operates Audubon Park, the Audubon Zoo, the Aquarium of the Americas, the Louisiana Nature and Science Center and several other related facilities within the City of New Orleans. Historically, on March 16,1870, the Louisiana State Legislature approved Act 84, “An Act to Establish a Public Park for the City of New Orleans, and to Provide Means Therefore,” which created a public body, The Commissioners of the New Orleans Park. The following year the Louisiana State Legislature enlarged the Commissioners’ powers and authorized them to purchase additional property in the City of New Orleans, the purpose being to establish a public park in accordance with Act 84. On August 15, 1871, the Commissioners purchased the Park, which was the Foucher Plantation for $800,000. This public park was originally named |s“Upper City Park” but was eventually renamed Audubon Park. By Act 87 of 1887, the legislature abolished the original offices of the Commissioners and transferred all of the powers and duties formerly conferred on the “Park Commission” to the City Council of New Orleans. Accordingly, the City of New Orleans, through the administration of the Audubon Park Commission, is the owner of Audubon Park.

Ilonka Van Der Meulen, wife of/and David Band, Jr. (the Bands), by an Act passed before John H. Norman, Notary Public, dated August 14, 1981, acquired from Thomas A. Oreck property known as 315 Walnut Street. In this Act of purchase, the Bands recognized that there were visible encroachments on this property which intruded onto Audubon Park. There were no substantial buildings on this encroachment. This encroachment consisted of a brick patio and a light metal fence in a 10' by 30' area.

In the year 2003, Audubon began correspondence with the Bands and other residents informing them that their property was encroaching onto Audubon Park property. Audubon presented the homeowners with alternatives including allowing them to sign a lease for the property or to remove the encroachment. All ten of the affected homeowners agreed to one or the other of the alternatives except for the Bands. The Bands declined either alternative and instituted proceedings against Audubon alleging ownership of the property under various theories including acquisitive prescription. Audubon filed a motion for summary judgment in response to the Bands’ petition for declaratory judgment.

The trial court granted Audubon’s motion for summary judgment finding that Audubon Park was a “public thing” and not susceptible of being acquired | ¿through prescription and citing City of New Orleans, et al. v. State of Louisiana, et al., 443 So.2d 562 (La.1983), as authority. This case is the essential determinative of all other issues in this matter. We agree with the trial court’s reliance on this jurisprudence.

STANDARD OF REVIEW

Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Reynolds v. Select Properties, Ltd., 93-1480 (La.4/11/94), 634 So.2d 1180, 1183. “Favored in Louisiana, the summary judgment procedure ‘is designed to secure the just, speedy, and inexpensive determination of every action’ and shall be construed to accomplish these ends.” King v. Parish National Bank, 2004-0337 (La.10/19/04), 885 So.2d 540, 545 (quoting La. C.C.P. art. 966(A)(2)).

A summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to a material fact, and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966. If the court finds that a genuine issue of material fact exists, summary judgment must be rejected. Alexis v. Southwood Ltd. Partnership, 2000-1124 (La.App. 4 Cir. 7/18/01), 792 So.2d 100, 102. The burden does not shift to the party opposing the summary judgment until the moving party first presents a prima facie case that no genuine issues of material fact exist. Supra At that point, the party opposing the motion must “make a showing sufficient to establish existence of proof of an element essential to his claim, action, or defense and on which he will bear the burden of proof at trial.” La. C.C.P. art. 966(C).

),.ASSIGNMENTS OF ERROR

The single issue, which ultimately controls this case, is a determination of whether or not Audubon Park is a “public thing”. Although, the appellants attempt to take this Court on a legal ruse arguing the “academic aspects of property law” we are not motivated to address their novel theories including that Audubon Park is the private property of the City of New Orleans. However, we will address the issue of whether or not Audubon Park is a public thing and the issue of prescription.

DISCUSSION

The appellants argue that they have essentially acquired public property by acquisitive prescription. This particular argument disregards codal and jurisprudential authority, which do not allow landowners encroaching upon public property to acquire ownership rights over the property owned by a municipality and dedicated for public use. This issue is the linchpin for this entire litigation.

Article 448 of the Louisiana Civil Code provides that things are divided into common, public, and private things. Article 450 specifically states that, “Public things are owned by the state or its political subdivisions in their capacity as public persons.” The very definition of a “public thing” prohibits a private person from owning a public thing.

Article 450 of the Louisiana Civil Code further provides examples of public things which may be owned by a political subdivision, “[s]uch as streets and public squares” to include public parks owned by a political subdivision in its public capacity. Anderson v. Thomas, 166 La. 512, 117 So. 573 (1928), Crick v. Ward Four Recretional Comm., 256 So.2d 840 (La.App. 3d Cir. 1972), Town of Vinton v. Lyons, 131 La. 673, 60 So. 54. See also, 2 La. Civ. L. Treatise, Property § 56 (4th ed.), A.N. Yiannopoulas. Clearly, the City of New Orleans is a “political subdivision” of the State. As such the City may own streets, public squares, and public parks in its public capacity.

The Supreme Court of Louisiana in The City of New Orleans, et al. v. State of Louisiana, supra, clearly held that Audubon Park is owned by the City of New Orleans. Citing Professor Yiannopoulas, the Court also found that Audubon Park is a public thing,

“A park, which is analogous to a public square, may belong to a political subdivision of the state, such as the City of New Orleans. It is, of course, a public thing owned by the City for the benefit of all persons.” [citation omitted]

443 So .2d at 572.

Public things, being insusceptible of private ownership, are inalienable, im-prescriptible and exempt from seizure. Vol.2 Louisiana Civil Law Treatise, Property, Second Edition, by Professor A.N. Yiannopoulas. The inalienability of all public things, whether belonging to the State or its political subdivisions, is guaranteed by the Civil Code. La.Civ.Code Art. 450. Unlike the State, there is no constitutional provision declaring that public things belonging to a political subdivision are imprescriptible; however, the impres-criptibility of such a thing is a consequence of their insusceptibility of private ownership under Article 450 of the Civil Code. La.Civ.Code art. 450 and Vol. 2, Louisiana Civil Law Treatise, Property, Second Edition, by Professor A.N. Yiannopoulas. While it is possible to acquire things, which are owned by a political subdivision in its private capacity, it is not possible to acquire by acquisitive prescription those things which are owned by a political ^subdivision in its public capacity. City of New Orleans, et at. v. Salmen Brick Co., (La.1914), 135 La. 828, 66 So. 237.

Audubon Park was purchased in 1871, specifically pursuant to a Louisiana legislative act for a specific purpose to establish a public park for the City of New Orleans. This specific designation for the property was stated in the original act of sale, after the act of sale, and for the last 134 years, the entirety of the area in question has been dedicated and used as a public park for the benefit of all.

The fact that the appellants purchased their property, with knowledge that it was encroaching onto Audubon Park property with constructions such as a lightweight metal fence and a single layer brick patio does not change a public park to private property. The appellants’ assertions are untenable. The City has never abandoned this property nor has it ever revoked its dedication as a public park.

Given the law, the evidence, and the applicable jurisprudence, we conclude, as did the trial court, that Audubon Park is public property, as it has been uninterrupted for over 130 years. Audubon Park as a public thing, belonging to the City of New Orleans in its public capacity, assured that the public has a right to unfettered use of the park.

The appellants assert that the fence and the patio meet the requirements of La. C.C. art. 459 and La. R.S. 9:5627. The trial court considered the structures on the encroaching area and determined that the fence and the patio do not meet the requirements of these exceptions. We agree.

|sArt. 458. Works obstructing the public use

Works built without lawful permit on public things, including the sea, the seashore, and the bottom of natural navigable waters, or on the banks of navigable rivers, that obstruct the public use may be removed at .the expense of the persons who built or own them at the instance of the public authorities, or of any person residing in the state.
The owner of the works may not prevent their removal by alleging prescription or possession.

Art. 459. Building encroaching on public way

A building that merely encroaches on a public way without preventing its use, and which cannot be removed without causing substantial damage to its owner, shall be permitted to remain. If it is demolished from any cause, the owner shall be bound to restore to the public the part of the way upon which the building stood.

In the case sub judice, the encroaching light weight metal fence and the single bricked patio may fit the description of a building pursuant to art. 459 but in no way can be construed to be merely encroaching upon on a public way, nor can it be said that to remove these encroachments would cause substantial damage to the appellants. This fence and patio ostensibly allows two people to enjoy the use of a public thing to the exclusion of all other members of the public to enjoy the park. Appellants’ particular situation does not squarely fit the requirements of art. 459. The appellants are obviously encroaching upon public property and have obstructed public use. They are clearly not entitled to the exception pursuant to art. 459, therefore, art 458 is controlling, and the Audubon Park Commission has the right and the authority to demand the removal of the encroachments at the appellants’ expense.

La. R.S. 9:5627. Building encroaching on public way

A. A building that merely encroaches on a public way without preventing its use and which cannot be removed | flwithout causing substantial damage to its owner shall be permitted to remain. If it is demolished from any cause the owner shall be bound to restore to the public the part of the way upon which the building stood.
All actions to remove such a building shall be barred by prescription two years from the date of the commencement of said building or six months from the effective date of this Section, whichever occurs later; provided that all actions to remove such a building which became barred by prescription under Act No. 684 of 1970 shall remain barred.
B. This Section shall not apply where the encroachment is on public servitudes of drainage, levees, waterways, or on rights-of-way for public highways.

This prescription argument is without merit as this statute requires the same requirements of La. C.C.art. 459. Since the appellants do not meet the requirements of the codal article they also do not meet the requirements of this statute.

Appellants further assert that to remove the encroachments would create a security or hazardous living situation as well as affect their property aesthetically, causing a potential decrease in property value. This argument is totally without merit and can in no way be interpreted as “substantial damage” to fit the requirements of La. C.C. art 459. Furthermore, the appellants were well aware that their property was encroaching onto public property when they purchased the property on Walnut Street.

The appellants’ encroachments on public property clearly obstruct the public use of the property. The appellants are not entitled to invoke the exceptions found in art. 459 or R.S. 9:5627; therefore, art. 458 controls. We find no error in the trial court’s judgment that the Audubon Park Commission has the right to demand the removal of the encroachments at the appellants’ expense.

|, (Appellants also argue that they have acquired property rights in ownership of the encroaching property through a theory of acquisitive prescription or adverse possession as Audubon Park has effectively abandoned the parks public use. We disagree.

Acquisitive prescription is a mode of acquiring ownership of immovable property or real rights by possession. La. C.C. art. 3446. Property may be acquired by ten-years possession, with just title and good faith, or by thirty-years possession, without the requirement of just title or good faith. La. C.C. arts. 3473 and 3486. The party alleging acquisitive prescription must prove, by a preponderance of the evidence, the intent to possess as owner and that his possession has been continuous and uninterrupted, peaceable, public, and unequivocal. La. C.C. arts. 3476 and 3488; Delacroix Corporation v. Perez, 98-2447, p. 3 (La.App. 4 Cir. 11/8/00), 794 So.2d 862, 865. Every presumption is in favor of the titleholder rather than the party alleging adverse possession. Id., pp. 3-4, 794 So.2d at 865. Whether the party alleging prescription has possessed for the required amount of time without interruption is a factual issue, which is reviewed under the manifest error standard. Id., p. 4, 794 So.2d at 865.

Acquisitive prescription does not run in favor of a precarious possessor, that is, one who possesses with the permission of the owner or on behalf of the owner. La. C.C. art. 3477; Id., p. 5, 794 So.2d at 866. The intent to possess as owner must be express rather than covert. Although the intent may be implied from possession that is open, notorious, public, continuous and uninterrupted, to the exclusion of the owner, there must be strong evidence that gives the owner some notice that his property is in jeopardy. Id., p. 10, 794 So.2d at 869.

|nAs discussed above, the purchase of the property, which is now Audubon Park, was a directive of the Louisiana Legislature more than 130 years ago and has been used as a public park ever since. It has never abandoned its dedication as a public park.

Appellants’ assertions primarily rely on the premise that Audubon Park is not a public park but a private property of the City of New Orleans. They have provided neither reliable testimony nor affidavits other than speculation to prove their allegation regarding the boundaries of Audubon Park or the nature of its acquisition. Their argument is unsustainable. We find no merit to their argument concerning the theory of acquisitive prescription.

CONCLUSION

The trial court examined the depositions, affidavits, surveys, the Act of Sale, the Legislative Acts creating Audubon Park and applicable jurisprudence declaring Audubon Park a public thing. As such, the trial court concluded that this public property was insusceptible to prescription. The trial court also concluded that the appellants were encroaching onto this public property and were therefore required to remove the encroachment at their own expense.

Given the fact that public things, such as Audubon Park, can only be owned by the State or its political subdivision, as noted above, it is clear that these adjacent property owners cannot acquire any portion of Audubon Park by the mere passage of time through claims of adverse possession or acquisitive prescription. The trial court was correct in determining that Audubon Park is a public thing not susceptible to private ownership through acquisitive prescription. The City’s ownership of this land was created in a specific legislative act to enable the City to ^purchase private land for a dedicated public use and purpose. The City has never abandoned this use and purpose.

Accordingly, for the above and foregoing reasons we affirm the judgment of the trial court.

AFFIRMED.

      . This property was formerly owned by Eti-enne de Bore'.

      . This sale was recorded at the Conveyance Office of the Parish of Orleans, at COB 100 Folio 180.

      .See Section 5^ — 801 of the Home Rule Charter for the City of New Orleans


author: JOAN BERNARD ARMSTRONG, Chief Judge.

text:
    Janet F. VICKNAIR, Divorced Wife of Gary J. Vicknair v. FIREFIGHTERS' PENSION AND RELIEF FUND IN the CITY OF NEW ORLEANS and Marzell R. Vicknair.
    No. 2005-CA-1327.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 12, 2006.

      William H. Cook, Jr., New Orleans, LA, for Plaintiff/Appellant.
    Nancy Picard, Maria Claire Cangemi, Robein, Urann & Lurye, Metairie, LA, for Defendant/Appellee.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge MICHAEL E. KIRBY and Judge LEON A. CANNIZZARO JR.).
   JOAN BERNARD ARMSTRONG, Chief Judge.

hThe plaintiff-appellant, Janet Vicknair, appeals a judgment in favor of the defendant-appellee, the Firefighters’ Pension and Relief Fund of New Orleans (hereinafter referred to as the “FFF” consistent with the nomenclature employed in the previous opinion of this Court in the prior related reported writ disposition entitled, Vicknair v. Firefighters' Pension and Relief Fund of New Orleans, 05-0467 (La. App. 4 Cir. 6/15/05), 907 So.2d 787, dismissing the plaintiffs claim for attorney fees.

The plaintiff was divorced from Gary Vicknair, a retired New Orleans firefighter. On May 17, 1989, Gary Vicknair and Janet Vicknair entered into a consent judgment to partition community property which provided, inter alia, that the plaintiff would receive a lump sum amount to compensate her for past pension installments paid to Gary as well as 19.42% of all future retirement payments “due by separate check to Janet F. Vicknair, at her address.”

Gary Vicknair subsequently married Marzell Vicknair, a named co-defendant in the trial court, but not a party to this appeal. Upon Gary Vicknair’s death the retirement benefit to Gary Vicknair ceased and, of course, along with it, the 19.42% payable to plaintiff. However, upon Gary Vicknair’s death, his widow, | ¡Marzell Vick-nair, began receiving a widow’s benefit under La. R.S. ll:3378(A)(l)(c). The plaintiff made a claim contending that she was entitled to have the 19.42% applied to the widow’s benefit, which claim was rejected by the FFF. Subsequently, the FFF was forced to pay the plaintiffs 19.42% of the widow’s benefit pursuant to court order.

This arrangement continued until the widow, Marzell Vicknair, died in November of 2004, at which time the FFF again terminated the plaintiffs benefits. This litigation arose pursuant to a claim by the plaintiff contending that she was entitled to have the 19.42% of the widow’s benefit continued to be paid for her for life in spite of the fact that she was not the widow and the actual widow was now deceased. This claim was initially resisted by the pension fund, but the fund was eventually compelled to acquiesce pursuant to a Writ of Mandamus issued by this Court on June 15, 2005, Vicknair v. Firefighters’ Pension and Relief Fund of New Orleans, 05-0467 (La.App. 4 Cir. 6/15/05), 907 So.2d 787.

The plaintiff now brings this appeal to assert a claim for attorney fees under the following relevant portions of La. R.S. 11:3363.1, entitled, “Fiduciary and investment responsibilities.”

A. The following persons shall be deemed to be in a fiduciary relationship with the fund:
(1) Any person who exercises any discretionary authority or discretionary control with respect to the management of system funds or assets.
(2) Any person who renders investment advice or services for compensation, direct or indirect, with respect to system funds or assets.
* ⅜ ⅜
IsD. The basic duty of a fiduciary is to discharge his duties with respect to the system in the exclusive interest of the members and beneficiaries.
E. A fiduciary must discharge his duties solely in the interest of system members and beneficiaries for the exclusive purpose of providing benefits to participants and beneficiaries, and paying the expenses of administering the plan.
F. (1) Any person who is a fiduciary with respect to a plan who breaches any of the responsibilities, obligations, or duties imposed upon fiduciaries by this Part shall be personally liable to make good to such plan any losses to the plan resulting from each such breach, and to restore to such plan any profits of such fiduciary which have been made through use of assets of the plan by the fiduciary, and shall be subject to such other equitable or remedial relief as the court may deem appropriate, including removal of such fiduciary.
* ⅝ *
H. (1) A member, beneficiary, or survivor who can demonstrate a personal interest in this retirement system may bring civil action to enforce the proceedings of this Section. In any enforcement proceeding the plaintiff may seek and the court may grant any or all of the following forms of relief:
(a) A writ of mandamus.
(b) An injunction.
(c) A declaratory judgment.
(d) A judgment rendering certain actions of the board of trustees as void.
(e) A judgment awarding civil damages.
* * *
(3) If a person who brings an enforcement proceeding prevails, he shall be awarded reasonable attorney fees and other costs of litigation. If such person prevails in part, the court may award him reasonable attorney fees or an appropriate portion thereof. If the court finds that the proceeding was of a frivolous nature and was brought |4with no substantial justification, it may award reasonable attorney fees to the prevailing party. [Emphasis added.]

The FFF’s opposition to the plaintiffs claim for attorney fees focuses on La. R.S. 11:3363.1 F which makes fiduciaries personally liable for losses to the FFF arising out of a breach of fiduciary duty. FFF makes the point that the plaintiff here is asserting a personal claim and personal claims are not covered by the La. R.S. 11:3363.1 F — claims for losses sustained by the fund itself, as opposed to claims of individual fund participants, are the only claims allowed by the statute according to the FFF.

The plaintiff, citing paragraphs “D” and “E”, contends that the fiduciary duties prescribed by La. R.S. 11:3363.1 are broader than those referred to in paragraph “F.”

The trial court in its reasons found that the plaintiff failed to assert any claim against any fiduciary personally. La. R.S. 11:3363.1 A, and 3363.1 B make it clear when read together that the references to fiduciaries in those and subsequent paragraphs (including La. R.S. 11:3363.1 H(3) providing for the recovery of attorney fees) refer not to the FFF, but to persons or legal persons acting in a fiduciary capacity in relation to the FFF. In other words, attorney fees are only recoverable, if at all, from fiduciaries individually, not from the pension fund (in this case the FFF) they serve.

As the trial court noted, the plaintiff has never asserted a claim against any fiduciary, i.e., no fiduciary has been named as a party to this litigation. Accordingly, the plaintiff has failed to plead a claim for attorney fees cognizable under La. R.S. 11:3363.1.

For the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.


author: JAMES F. McKAY III, Judge.

text:
    Darryl DEAN v. The CITY OF NEW ORLEANS (NOPD).
    No. 2005-CA-1347.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 12, 2006.
    Darryl Dean, New Orleans, Louisiana, In Proper Person, Plaintiff/Appellant.
    Thomas Louis Colletta, Jr., Wayne J. Fontana, Courtenay, Hunter & Fontana, L.L.P., New Orleans, Louisiana, for Defendant/Appellee.
    (Court composed of Judge JAMES F. McKAY III, Judge DENNIS R. BAGNERIS, SR., Judge MAX N. TOBIAS, JR.).
   JAMES F. McKAY III, Judge.

| Jfhe plaintiff, Darryl Dean, appeals the granting of an exception of res judicata in favor of the defendant, City of New Orleans, and the dismissal of his case with prejudice. We affirm.

FACTS AND PROCEDURAL HISTORY

On April 6, 2000, Darryl Dean was injured while in the course and scope of his employment as an officer in the New Orleans Police Department. His injuries consisted of a partial rotator cuff tear and a slight contusion to his right hand.

The City of New Orleans initiated workers’ compensation benefits to and on behalf of Officer Dean. Officer Dean began treating with Dr. Christopher Marrero. Although conservative treatment was initially prescribed for Officer Dean, Dr. Marrero ultimately performed rotator cuff surgery when Officer Dean’s symptoms did not resolve with conservative treatment. Sometime thereafter, Officer Dean was released to return to light duty work.

On October 4, 2001, Officer Dean filed a disputed claim for compensation. After the initial mediation, the City propounded written discovery and a notice of 1 ^deposition to Officer Dean on February 4, 2002. Officer Dean failed to respond to the interrogatories and request for production of documents. Officer Dean also failed to appear for a deposition which he was subpoenaed to attend on June 3, 2002. On June 13, 2002, the trial court signed an order dismissing Officer Dean’s disputed claim for compensation with prejudice. Officer Dean did not appeal this dismissal.

On August 9, 2004, Officer Dean filed a second disputed claim for compensation regarding the April 6, 2001 work-related accident. Officer Dean failed to attend the scheduled mediation conference and the trial court issued an order dismissing the plaintiffs suit for non-prosecution on October 27, 2004.

On October 25, 2004, Officer Dean filed a third disputed claim for compensation regarding the April 6, 2001 work-related accident. On March 9, 2004, Officer Dean, at the direction of the trial court filed another disputed claim for compensation. On February 4, 2005, the City filed a peremptory exception of res judicata. The trial court granted the City’s exception on June 10, 2005 and dismissed Officer Dean’s case with prejudice. On June 14, 2005, Officer Dean filed this appeal.

DISCUSSION

The issue before this Court is whether the trial court erred in granting the defendant’s exception of res judicata.

| ¡¡In accordance with Louisiana case law, a dismissal with prejudice has the effect of a final judgment of absolute dismissal after trial and constitutes a bar on the same cause of action. O'Brien v. Johnson, 99-2773 (La.App. 4 Cir. 10/17/01), 800 So.2d 64. Furthermore, a final judgment acquires the authority of the thing adjudged [“res judicata”] if no further review of the judgment is sought within the time fixed by law or if the judgment is confirmed on review. Tolis v. Bd. Of Supervisors of Louisiana State University, 95-1529 (La.10/16/95), 660 So.2d 1206. In the instant case, the trial court granted the City’s exception of res judicata based on the fact that Officer Dean’s earlier lawsuit on the identical claim had been dismissed with prejudice and never appealed. Accordingly, we find no error in the trial court’s granting of the defendant’s exception of res judicata.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED

      . This dismissal was without prejudice.