author: McClendon, j.

text:
    ENTERPRISE LEASING CO. OF NEW ORLEANS v. Michael CURTIS, In his Capacity as Director of the Livingston Parish School Board, Sales Tax Division.
    No. 2007 CA 0354.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 2, 2007.
    Writ Denied Feb. 1, 2008.

      James M. Garner, Steven I. Klein Lauren, L. Hudson, New Orleans, Louisiana, for Plaintiff/Appellant, Enterprise Leasing Co. of New Orleans.
    Robert R. Rainer, Baton Rouge, Louisiana, for Defendant/Appellee, Michael Curtis, in his capacity as Director of the Livingston Parish School Board, Sales Tax Division.
    Before GAIDRY, McDONALD, and McClendon, jj.
   McClendon, j.

I i>The plaintiff, Enterprise Leasing Company of New Orleans (Enterprise) appeals the judgment of the trial court that determined that the gross proceeds derived from the lease or rental of automobiles includes any amounts collected for collision damage waiver (CDW) payments. The defendant, Michael Curtis, in his Capacity as Director of the Livingston Parish School Board, Sales Tax Division (Livingston Parish), answered the appeal. For the reasons that follow, we affirm in part, reverse in part, and amend.

FACTS AND PROCEDURAL HISTORY

Enterprise is engaged in the business of renting automobiles in numerous Louisiana parishes, including Livingston Parish. When renting an automobile from Enterprise, the customer has the option to accept responsibility for damage to the automobile, or to purchase CDW. If the customer elects to purchase CDW, Enterprise waives the right to recover damages from the customer for physical damage to the rented automobile.

The dispute in this matter arose when Enterprise was assessed $25,212.01 in sales and use taxes, for the audit period from January 1, 2000, through July 31, 2003, on CDW payments collected by Enterprise from its customers. During the audit period in question, Enterprise collected from its customers sales taxes on the charge for rental of the automobile, but did not collect nor remit sales taxes for CDW payments. As a result of the assessment, Enterprise paid under protest the $25,212.01 amount in sales taxes, interest, and penalties. Thereafter, Enterprise filed suit asserting that |SCDW payments are not taxable and requested a refund of the amount paid plus additional interest. Livingston Parish answered the petition and filed a reconventional demand that included a request for attorney fees in the amount of ten percent of the amount due.

On June 21, 2005, Livingston Parish filed a motion for partial summary judgment contending that it was entitled to judgment as a matter of law for the amount of the taxes, interest, and penalties paid under protest. Livingston Parish further alleged that it was statutorily entitled to reasonable attorney fees for the collection of the taxes due, but that because liability for the amount of the attorney fees was not part of the motion for partial summary judgment, it reserved its rights regarding this issue. On September 1, 2005, Enterprise filed a cross-motion for summary judgment asserting that it was entitled to judgment as a matter of law because CDW receipts are not taxable.

On June 21, 2005, Livingston Parish also filed a motion to strike as irrelevant certain paragraphs from Enterprise’s petition in which Enterprise alleged that certain other taxing authorities in Louisiana have not pursued collection of the tax at issue in this matter.

The motions were heard and taken under advisement. On October 24, 2006, the trial court issued reasons for judgment, concluding that CDW charges are part of the gross proceeds of automobile rentals and are therefore taxable. Accordingly, the trial court granted Livingston Parish’s motion for summary judgment and denied the motion for summary judgment filed by Enterprise. The court additionally granted Livingston Parish’s motion to strike, agreeing with Livingston Parish that what was done by other taxing bodies was irrelevant to a determination of the pending legal issues. On November 7, 2006, the trial court issued supplemental reasons for judgment | regarding the attorney fees issue, determining that it was not reasonable to impose any attorney fees, although it ruled in favor of Livingston Parish on the tax issue. Judgment was signed on November 7, 2006. Enterprise appealed and Livingston Parish answered the appeal.

Thereafter, this court, ex propria motu, issued a show cause order why the appeal should not be dismissed as the judgment did not contain language disposing of and/or dismissing the claims of Enterprise. An interim order then followed remanding the matter for the limited purpose of having the trial court sign a valid written judgment. On May 14, 2007, an amended judgment was signed by the trial court, granting Livingston Parish’s motion for summary judgment and “declaring that the gross proceeds derived from the leases or rentals generated by [Enterprise] are subject to lease and rental taxes and shall include any amounts collected for collision damage waiver payments.” The amended judgment further denied the summary judgment motion filed by Enterprise, “including denial of [Enterprise’s] claim for a refund of $25,212.01 previously paid under protest, representing amounts representing sales and use taxes on amounts previously paid by customers to [Enterprise] as collision damage waiver payments, and for interest on such amounts.” The judgment also granted Livingston Parish’s motion to strike and denied Livingston Parish’s request for attorney fees, as in the original judgment.

ASSIGNMENTS OF ERROR

On appeal, Enterprise raises the following assignments of error:

ls(l) The trial court committed error by finding that the CDW charges are part of the “gross proceeds of rentals” of motor vehicles.
(2) The trial court committed error by failing to find that the sale of CDW, an incorporeal right, is not subject to sales taxation.
(3) The trial court committed error by failing to construe any doubt as to the meaning of the sales tax provisions in favor of the taxpayer and against taxation.
(4) The trial court committed error by upholding imposition of a 25 percent penalty against Enterprise.
(5) The trial court committed error by striking Enterprise’s evidence on the tax treatment of CDW by other Louisiana taxing jurisdictions and Enterprise’s good faith.

In its answer to the appeal, Livingston Parish contends that the trial court erred in denying it statutory attorney fees. Livingston Parish also seeks additional attorney fees for this appeal.

STANDARD OF REVIEW

Appellate courts review summary judgments de novo using the same criteria that govern the trial court’s consideration of whether a summary judgment is appropriate. Guillory v. Interstate Gas Station, 94-1767, p. 5 (La.3/30/95), 653 So.2d 1152, 1155. The summary judgment procedure is favored and shall be construed to accomplish the just, speedy, and inexpensive determination of actions. LSA-C.C.P. art. 966 A(2). A motion for summary judgment is properly granted only 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 material fact, and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966 B.

| ^DISCUSSION

The function of statutory interpretation and the construction to be given to legislative acts rests with the judicial branch of the government. Anthony Crane Rental, L.P. v. Fruge, 03-0115, p. 3 (La.10/21/03), 859 So.2d 631, 634. Under the general rules of statutory construction, courts begin with the premise that legislation is the solemn expression of legislative will and, therefore, the interpretation of a law involves, primarily, the search for the legislature’s intent. LSA-C.C. art. 1; Anthony Crane Rental, 03-0115 at p. 4, 859 So.2d at 634. Our supreme court recently explained:

When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the Legislature. La. Civ.Code art. 9 (2004). When the language of the law is susceptible of different meanings, it must be interpreted as having the meaning that best conforms to the purpose of the law, and the words of law must be given their generally prevailing meaning. La. Civ.Code arts. 10 and 11 (2004). When the words of a law are ambiguous, their meaning must be sought by examining the context in which they occur and the text of the law as a whole, and laws on the same subject matter must be interpreted in reference to each other. La.Rev.Stat. § 1:3 (2004); La. Civ.Code. arts. 12 and 13. (Case citations omitted.)

Pumphrey v. City of New Orleans, 05-979, pp. 10-11 (La.4/4/06), 925 So.2d 1202, 1209-10.

Thus, the starting point with any statute is the language of the statute itself. Louisiana Revised Statute 47:302 B(l) provides:

B. There is hereby levied a tax upon the lease or rental within this state of each item or article of tangible personal property, as defined herein; the levy of said tax to be as follows:
(1) At the rate of two per centum (2%) of the gross proceeds derived from the lease or rental of tangible personal 17property, as defined herein, where the lease or rental of such property is an established business, or part of an established business, or the same is incidental or germane to the said business. (Emphasis added.)

Enterprise argues that CDW payments clearly are not part of the “gross proceeds derived from the lease or rental of tangible personal property.” Enterprise alleges that the sale of CDW is a purely optional purchase, separately stated on the face of the rental contract, and thus is a separate purchase and not an integral part of the motor vehicle rental transaction. Thus, Enterprise contends, the sale of CDW is not the sale of tangible personal property, but rather the sale of an incorporeal right, which is not subject to taxation.

Livingston Parish asserts, however, that pursuant to the statute, the legislature clearly intended that all lease and rental receipts be taxed, including CDW receipts, which are an integral part of an indivisible contract that has as its real object the temporary possession of a motor vehicle. Livingston Parish further argues that Enterprise cannot separate the CDW from the principal automobile lease contract, because without the rental of the vehicle there can be no CDW.

Courts have looked at the “essence of’ or the “real object” of the transaction in determining whether a transaction is taxable under the Louisiana sales and use tax statutes. In McNamara v. Electrode Corp., 418 So.2d 652, 662 (La.App. 1 Cir.), writ denied, 420 So.2d 986 (La.1982), Electrode leased technical equipment (dimensionally stable anodes) |Rin Louisiana. Electrode argued that the accompanying sale of the technology was divisible and therefore non-taxable. This court determined that the sale of technology without the tangible personal property (the anodes) was worthless and therefore the intangible item (the technology) was merely incidental to the tangible, item and subject to taxation. The court recognized that the true object of the lease contracts, despite their labeling as separate leases, was the lease of the anodes. The court stated:

The legislature, in enacting a Louisiana sales/use and lease/rental tax has authorized the taxing of intangible rights closely connected to items of tangible personal property. Otherwise, every contract would have to be closely scrutinized to determine what proportion of the money involved should be allocated to tangible personal property and what portion should be allocated to intangible rights.

Electrode, 418 So.2d at 662. See also International Paper Co. v. East Feliciana Parish School Board, 02-0648, p. 6 (La.App. 1 Cir. 3/28/03), 860 So.2d 717, 721, writ denied, 03-1190 (La.6/20/03), 847 So.2d 1235.

Similarly, in this matter, the real object of the transaction is the lease of tangible personal property, a motor vehicle. Clearly, the CDW can only be made available with the lease or rental of a motor vehicle. Enterprise cannot separate the CDW from the principal lease as the CDW does not exist without the automobile lease. Nor can CDW be purchased from another lessor. CDW payments are merely incidental to the lease of the tangible property.

Nevertheless, Enterprises cites the cases of McNamara v. Patterson Services, Inc., 382 So.2d 971 (La.App. 1 Cir.1980), and Pontchartrain Materials Corp. v. Plaquemines Parish Gov’t, 03-1444 (La. App. 4 Cir. 3/31/04), 871 So.2d 1171, units denied, 04-1093 (La.9/3/04), 882 So.2d 606 and 04-1152 (La.9/3/04), 882 So.2d 607, in support of its argument that CDW is not an integral part of the lease contract and therefore not taxable. [ 9However, we find these cases distinguishable from the present matter. In Patterson, the defendant arranged with a third party for the transportation of leased drilling equipment, a service for which it was not compensated. This court determined that the transportation charges were not “gross proceeds” derived from the rental of the equipment and therefore were not part of the rental charge and not taxable. Similarly, in Pontchartrain, the Fourth Circuit determined that a separately-stated freight charge by the vendor for the transportation of aggregate material was not a necessary part of the sale and therefore not part of the sales tax base. However, in the case sub judice, CDW is not provided by a third party, as it was in Patterson. For those customers who opted for CDW, Enterprise charged for the CDW and retained the payments to pay for any damages caused to its vehicles. Unlike the transportation or freight charges in Patterson and Pontchartrain, in this case, the parties contracted for CDW as a part of their lease agreement.

Enterprise also makes the argument that CDW receipts are not taxable because it also offers other optional products, which are not subject to sales and use taxes. In addition to CDW, Enterprise offers personal accident insurance/personal effects coverage (PAI/PEC) and supplemental liability protection (SLP) to its customers. Enterprise argues that there is no reason to treat CDW receipts any differently. While Enterprise does offer its customers two insurance products in PAI/ PEC and SLP, the charges it collects for these products are for the insurance premiums for coverage provided through a third party insurance company. Thus, we find Enterprise’s argument to be without merit.

We note that in its reasons for judgment, the trial court recognized Louisiana’s Collision Damage Waiver Law, LSA-R.S. 22:2091.1, et seq., which was. enacted in 1989 to address “concerns about sales of collision | indamage waivers to vehicle renters who were unaware that their own personal insurance policies might provide the same coverage.” Section 22:2091.10 provides:

The rates charged for the collision damage waiver by a licensee under this Part shall be exempt from insurance taxes and insurance taxation provided that sales taxes in effect in the locale of rental contract issuance are applied, collected, and remitted to the proper tax authority.

We agree with the trial court that this language did not create a new tax, as Enterprise has suggested, but rather recognized an existing tax, i.e., the sales tax imposed on gross proceeds of rentals.

Accordingly, we conclude that the provision in LSA-R.S. 47:302 A levying a tax on the “gross proceeds derived from the lease or rental of tangible personal property” clearly and unambiguously includes CDW payments and shall be applied as written. Therefore, the trial court properly granted summary judgment in favor of Livingston Parish, which determined that CDW payments are subject to taxation, and denying Enterprise’s motion for summary judgment, in which it sought a refund of the taxes on CDW payments it paid under protest.

Enterprise next contends that the trial court erred in finding it liable for the amounts paid under protest that represent penalties. Enterprise contends that it timely filed its tax returns and timely paid the taxes shown as due. Enterprise argues that it was led to believe by other tax collectors in prior audits, who either did not seek to impose any sales tax on CDW payments or specifically instructed Enterprise not to collect any sales tax on sales of CDW, that taxes on CDW sales were not owed. On the other hand, Livingston Parish contends that the ordinances impose mandatory penalties on delinquent taxpayers regardless of good faith. The trial court stated that h/‘the penalty provisions do not hinge on any finding of good faith.” We agree.

Louisiana Revised Statute 47:1602 A and the comparable Livingston Parish ordinances provide for the mandatory imposition of penalties. Louisiana Revised Statute 47:1602 A provides, in pertinent part:

When any taxpayer fails to make and file any return required to be made under the provisions of this Subtitle before the time that the return becomes delinquent or when any taxpayer fails to timely remit to the secretary of the Department of Revenue the total amount of tax that is due on a return which he has filed, there shall be imposed, in addition to any other penalties provided, a specific penalty to be added to the tax. (Emphasis added.)

Additionally, the taxing ordinances uniformly provide for mandatory penalties.

Finding no ambiguity in the language of the taxing statute and its construction as applied to Enterprise, we find no exception to the penalty provisions for good faith error. While we recognize a narrow jurisprudential exception to the assessment of penalties based on a taxpayer’s good faith, |12this exception has only been applied in limited circumstances. Further, we do not find said exception to be applicable herein. Therefore, we find no error in the trial court’s decision finding Enterprise liable for penalties. As stated in Turner Corp. v. Parish School Bd. of Parish of St. Charles, 97-676, p. 5 (La.App. 5 Cir. 12/10/97), 704 So.2d 848, 850, unit denied, 98-0086 (La.3/13/98), 713 So.2d 470:

When the taxpayer fails to pay the taxes due, penalties and costs of a necessary audit may be assessed by the tax collector against the taxpayer. Whether good faith error or not, in failing to pay the taxes due, the tax collector was required to expend time and money in auditing the taxpayer and discovering the shortage. As provided by law, the defaulting taxpayer, whether in good faith or not, must bear the burden of those expenses.

Accordingly, we also find no error in the trial court’s granting of Livingston Parish’s motion to strike Paragraphs 18 through 21 of Enterprise’s petition regarding its defense of good faith.

In its answer to the appeal, Livingston Parish complains of the trial court’s failure to award it attorney fees for the collection of the taxes on CDW receipts. The trial court, in its supplemental reasons for judgment, stated:

This Court determines that the combination of the res nova issue and presumed good faith on the part of [Enterprise] are factors which should be considered in a determination as to reasonable attorney’s fees in this case. Since [Livingston Parish] basically breaks new ground with this attempted collection, the Court determines that it is not reasonable to | ^impose any attorney’s fees in the case, even though it has ruled in favor of [Livingston Parish] on the issue presented,

LSA-R.S. 47:1512 provides:

The collector is authorized to employ private counsel to assist in the collection of any taxes, penalties' or interest due under this Sub-title, or to represent him in any proceeding under- this Sub-title. If any taxes, penalties or interest due under this title are referred to an attorney at law for collection, an additional charge for attorney fees, in the amount of ten per centum (10%) of the taxes, penalties and interest due, shall be paid by the tax debtor. (Emphasis added).

The local ordinances at issue herein also use the mandatory language “shall” and generally mirror the state statute. Enterprise’s delinquent payment under protest of the taxes due is insufficient to avoid liability for attorney fees. Thus, the trial court erred in failing to award Livingston Parish attorney fees. Given the clear language of the statute, we are constrained to reverse that portion of the trial court’s judgment.

Nevertheless, attorney fees - are subject to a judicial review for reasonableness of the fee. City of Baton Rouge v. Stauffer Chemical Co., 500 So.2d 397, 401 (La.1987). In this matter, on the same day that the trial court submitted its supplemental reasons for judgment regarding attorney fees, the parties had stipulated that “in the event the Court would award ten (10%) of $25,212.01 as attorney fees to [Livingston Parish], neither Enterprise nor [Livingston Parish] shall contend in this court, or in an appellate court, that such fee is unreasonable for legal services rendered in the district court.” Accordingly, we award to Livingston Parish $2,521.20, which is ten percent of the $25,212.01 amount, as attorney fees.

Lastly, Livingston Parish requests additional attorney fees for the appeal of this matter. Because the stipulation included legal work at only 1 uthe trial court level, we find that an increase in the award of attorney fees to Livingston Parish by an amount of $1,000 is appropriate for this appeal.

CONCLUSION

For the above and foregoing reasons, we affirm the judgment of the trial court granting Livingston Parish’s motion for summary judgment and denying Enterprise’s _ motion for summary judgment. The granting of Livingston Parish’s motion to strike is also affirmed. We reverse that portion of the trial court’s judgment denying Livingston Parish attorney fees and award it $2,521.20 for attorney fees at the trial court level. We also award attorney fees to Livingston Parish in the amount of $1,000 for this appeal. All costs of this appeal are assessed against Enterprise.

AFFIRMED IN PART; REVERSED IN PART; AND AMENDED.

      . Louisiana Revised Statute 22:2091.3 A defines "collision damage waiver” as "any contract or contractual provision, whether separate from or a part of a motor vehicle rental agreement, whereby the lessor agrees for a charge, to waive any and all claims against the lessee for any damages to the rental motor vehicle during the term of the rental agreement.”

      . A panel of this court stated:
      The purported judgment which is included in the record grants the defendant’s motion for summary judgment, denies the plaintiff's motion for summary judgment, and denies defendant’s request for attorneys’ fees but does not set forth the relief granted, i.e., that all of the gross proceeds derived by plaintiff from its customers within Livingston Parish are subject to lease and rental taxes and for judgment in favor of plaintiff and against defendant for $25,212.01.

      . Other pertinent sales and use tax statutes, made applicable to local tax collectors through LSA-R.S. 33:2841, include LSA-R.S. 47:321 and 47:331. At the local level, applicable ordinances include Section 2.1 of Ordinance No. 97-15 of the Livingston Parish Council, Section 2.02 of the City of Denham Springs ordinances, Section 2.01 of the Livingston Parish School Board ordinances, and Section 2.01 of the Livingston Parish Law Enforcement District ordinances.

      . “Tangible personal property’’ is defined in LSA-R.S. 47:301(16)(a), and “means and includes personal property which may be seen, weighed, measured, felt or touched, or is in any other manner perceptible to the senses.” Section 1.1 of the Livingston Parish ordinance adopts the definitions found in LSA-R.S. 47:301. See also Section 1.19 of the City of Denham Springs, the Livingston Parish School Board, and the Livingston Parish Law Enforcement District ordinances.

      .We note that the cases cited hereafter do not involve the same taxing statute, but assist us in resolving this res nova issue.

      . Section 9.3 of the Livingston Parish ordinance provides:
      If the amount of tax due by the dealer is not paid on or before the twentieth (20th) day of the month next following the month for which the tax are due, there shall be collected, with said tax, interest upon said unpaid amount, at a uniform rate of interest per annum set by the Collector for all sales and use tax being levied and collected within the Authority, or fractional part thereof, said interest to be computed from the first day of the month next following the month for which the tax are due until it is paid; and in addition to the interest that may be so due there shall also be collected a penalty equivalent to five percent (5%) for each thirty (30) days, or fraction thereof, of delinquency, not to exceed twenty-five percent (25%) in aggregate, of the tax due, when such tax are not paid within thirty (30) days of the date the tax first become due and payable, and in the event of suit, attorneys’ fees at the rate of ten percent(10%) of the aggregate of tax, interest and penalty. (Emphasis added.)

        See also Section 9.04 of the City of Denham Springs, the Livingston Parish School Board, and the Livingston Parish Law Enforcement District ordinances.

      . See BP Oil Company v. Plaquemines Parish Government, 93-1109 (La.9/6/94), 651 So.2d 1322 (An award of penalties on summary judgment was reversed because there was a genuine issue of material fact as to the taxpayer’s good faith and the taxpayer was entitled to a trial on the issue); St. Pierre's Fabrication and Welding, Inc. v. McNamara, 495 So.2d 1295 (La.1986) (The supreme court recognized the equitable situation warranting the taxpayer relief from penalties, but not the taxes or interest due, where the state, through the department of revenue and taxation, specifically informed the taxpayer that it was not liable for the state sales tax in question.); and J. Ray McDermott, Inc. v. Morrison, 96-2337 (La.App. 1 Cir. 11/7/97), 705 So.2d 195, writs denied. 97-3055, 97-3062 (La.2/13/98), 709 So.2d 753, 754 (The First Circuit affirmed the trial court’s decision that a taxpayer was not liable for penalties where the taxpayer in good faith paid the sales and use taxes due, but incorrectly paid the taxes to Texas rather than to Louisiana.).

      . See Section 9.04 of the School Board, City of Denham Springs, and Law Enforcement District ordinances and Section 9.3 of the Parish Council ordinance.


source: Caselaw Access Project

author: GUIDRY, J.

license: Public Domain

text:
    In the Matter of the SUCCESSION OF J. Randolph TEMPLET, Jr.
    No. 2007 CA 0067.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 2, 2007.
    Writ Denied Feb. 1, 2007.

      Elizabeth A. Engolio, Plaquemine, LA, for Plaintiffs/Appellees, Claire Templet Whitaker and Mary Jane Templet Pizzola-to.
    Paul G. Borron, III, Plaquemine, LA, for Defendani/Appellant, Carolyn Robertson Templet.
    Before WHIPPLE, GUIDRY, and HUGHES, JJ.
   GUIDRY, J.

Un this succession proceeding, the executrix appeals a judgment sustaining a protest to the classification of two items in the Final Account and Proposed Cash Distribution filed by the executrix. For the reasons that follow, we reverse in part and remand.

FACTS AND PROCEDURAL HISTORY

Decedent, J. Randolph Templet, died testate on January 7, 2005. He named his wife, Carolyn Templet, and his three adult daughters as legatees in his will. He bequeathed the family home, automobiles, farm machinery and equipment, as well as one-half of all cash owned by him at the time of his death, to his wife. He left all remaining property owned by him to his three daughters, with one-half of that property subject to a usufruct granted to his wife.

Mrs. Templet was confirmed as the testamentary executrix of decedent’s estate and, after due proceedings, filed a Final Account and Proposed Cash Distribution. In response, one of decedent’s daughters, Claire Whitaker, filed a petition protesting the classification therein of a check for $19,712.00, payable to decedent, and dated January 7, 2005, as “[c]ash on hand” at the time of decedent’s death. She also objected to treating a dividend paid by A. Wilbert’s Sons, L.L.C. (Wilbert’s) to decedent’s estate as the result of the sale of immovable property as a cash dividend, one-half of which belonged to Mrs. Tem-plet.

Following hearing, the district court rendered judgment in favor of Mrs. Whitaker finding the $19,712.00 check did not constitute cash owned by decedent at the time of his death. The court further held the disputed dividend check should be treated as a liquidation dividend rather than a cash dividend, with the naked ownership of one-half belonging to decedent’s daughters in full ownership and the naked ownership of the remaining one-half belonging to them, subject to Mrs. Templet’s usufruct. Mrs, Templet now appeals, raising two assignments of error.

^CLASSIFICATION OF CHECK

Mrs. Templet contends the district court erred in refusing to treat the $19,712.00 check as cash owned by decedent at the time of his death.

The check in question was issued to decedent as payment of a shareholder dividend declared by Wilbert’s Board of Directors at its December 12, 2004 meeting. The check was dated January 7.2005, the date the board had declared the dividend to be payable. Nevertheless, John M. Higdon, Wilbert’s president and chairman of the board, indicated it was Wilbert’s longstanding practice to allow those shareholders who wished to do so to pick up their dividend checks on the day before the payable date of the check after 2:00 p.m., the time when the banks changed their transaction date. He testified that several shareholders, including decedent, customarily did so.

Mrs. Templet picked up decedent’s check sometime after 2:00 p.m. on January 6, 2005; she had authority to do so under a general power of attorney previously granted to her by decedent. According to Mrs. Templet, she stamped the check with the “for deposit” stamp she normally used and prepared a deposit slip for it that night. The decedent died at 6:55 a.m. on the following morning, January 7, 2005. At Mrs. Templet’s request, a family friend deposited the check into the Templets’ joint checking account at 8:52 a.m. on January 7, 2005.

In the final accounting she filed, Tem-plet classified the $19,712.00 check as cash owned by decedent at the time of his death, one-half of which she was entitled to in full ownership under the following provision of decedent’s will:

I now bequeath to my wife, Carolyn Robertson Templet, the following:
⅝ * ⅛' *
4. One-half of all cash owned by me at the time of my death, including bank account or accounts and certifí-cate or certificates of indebtedness, or in any other form. (Emphasis added.)

[4In contesting Templet’s classification of the check, Whitaker argues that, even though the check was in the executrix’s possession prior to decedent’s death, the facts that the check was not payable until January 7, 2005 and that decedent died prior to the opening of business on that date precludes the check from being considered as “cash on hand” at the time of his death. The district court accepted this argument for the following reasons:

In considering the status of the $19,712.00 check from A. Wilbert’s Sons Lumber and Shingle Co. (Wilbert’s Co.) received, on January 6, 2005 and dated January 7, 2005 the court relies strongly on the testimony of J. Higdon. Mr. Higdon is the president of Wilbert’s Co. He testified that Wilbert’s Co. had declared a dividend on December 12, 2004, not to be payable until January 7, 2005. As a courtesy to some owners, they were given their dividend checks after the banks closed on January 6, 2005. The checks were dated January 7, 2005. Wilbert’s Co. did not intend the money to leave their account until January 7, 2005. The decedent’s widow had his power of attorney and had his full authority to receive the check on January 6th. However that power of attorney ceased to exist at 6:55 a.m. on January 7th when it was stipulated that the decedent died. The check was not deposited until after the bank opened at 8:52 a.m. Wilbert’s did not intend the cash to leave its account until normal business hours on January 7th. This is reinforced by Mr. Higdon’s testimony that he did not give anyone any checks on January 6th until after 2:00 p.m. when the banks close their accounts. The banks were not open for normal business at 6:55 a.m. when the decedent died. Therefore the check for $19,712.00 could not be considered cash on hand at the time of death.

In interpreting a will, the function of the court is to determine and carry out the intention of the testator if it can be ascertained from the language of the will. Succession of Mydland, 94-0501, p. 5 (La.App. 1st Cir.3/3/95), 653 So.2d 8, 11. In fact, the intent of the testator is the paramount consideration in interpreting the provisions of a will. La. C.C. art. 1611 A; Matter of Succession of Williams, 608 So.2d 973, 975 (La.11/30/92). The first and natural impression conveyed to the mind on reading the will as a whole is entitled to great weight. The testator is assumed to be conveying his ideas to the best of his ability so as to be correctly understood at first view. See Mydland, 94-0501 at. p. 5, 653 So.2d at 12. When a will is free from ambiguity, the will must be carried out according to its written |Bterms, without reference to information outside the will. Williams, 608 So.2d at 975; Mydland, 94-0501 at p. 5, 653 So.2d at 12.

Applying these principles to the will sub judice, we find the district court erred in concluding the check in question should not be considered cash owned by decedent at the time of his death within the contemplation of the will. The district court primarily based its decision on its conclusions: (1) that Mrs. Templet had no authority to deposit the check since her power of attorney ceased upon decedent’s death; and (2) Wilbert’s did not intend for the dividend check to be cashed or deposited until normal business hours on January 7, 2005. However, in focusing on Mrs. Templet’s authority to deposit the check and on Wilbert’s intent, the court lost sight of the paramount consideration in interpreting a will, that is, the testator’s intent.

The pertinent bequest to Mrs. Templet was for one-half of all cash owned by decedent at the time of his death, including all bank accounts and certificates of deposit, “or in any other form”. In Succession of Mulqueeny, 248 La. 659, 668-69, 181 So.2d 384, 387 (1965), the Louisiana Supreme Court made it clear that the term “cash” encompasses more than merely physical currency, stating that:

[T]he reference to ‘cash’ in the legacies to the ... [legatees] does not necessarily require that those legacies be satisfied strictly from physical currency, coin or specie, but ‘cash’ in that sense could contemplate the satisfaction of the legacies from demand deposits, or choses in action represented by a bank or other account when the funds represented thereby are subject to ready withdrawal.

Likewise, Black’s Law Dictionary defines “cash” as: (1) “Money or its equivalent” and (2), “Currency or coins, negotiable checks, and balances in bank accounts.” Black’s Law Dictionary 208 (7th ed.1999). (Emphasis added.) | r,Further, in several instances of various contexts, the courts of this state have equated personal checks to cash or money.

Most importantly, the language utilized by decedent clearly indicates he did not intend the term “cash” to be limited to physical currency or even to money in bank accounts, since he also referred specifically to certificates of indebtedness and cash “in any other form”. We note in particular that he used the phrase “in any other form” without limitation. Accordingly, in view of the decedent’s obvious intent that the term “cash” be broadly construed, we conclude the proper interpretation of the language of his will is that a negotiable check in his possession at the time of his death should be considered cash owned by him at the time of his death within the contemplation of the will. That portion of the district court judgment holding to the contrary is reversed.

CLASSIFICATION OF DIVIDEND

Mrs. Templet also contends the district court erred in classifying a dividend paid by Wilbert’s to decedent’s estate in March 2006, in the amount of $65,846.58, as a liquidation dividend rather than as a cash dividend. This classification is crucial in determining ownership of the dividend since Louisiana Civil Code art. 552 provides, in pertinent part, as follows:

A cash dividend declared during the existence of the usufruct belongs to the usufructuary. A liquidation dividend or a stock redemption payment belongs to the naked owner subject to the usufruct.
Stock dividends and stock splits declared during the existence of the usu-fruet belong to the naked owner subject to the usufruct.

17At trial, Mr. Higdon explained that the $65,846.58 dividend was the first of five annual dividends in that amount to be paid by Wilbert’s to decedent’s estate. Wilbert’s declared the dividends after it sold approximately 1,300 acres of property it owned, which was known as Evergreen Plantation and previously had been used to grow sugarcane, for $24,400,000. Wilbert’s spent $7,000,000 of the sale proceeds to purchase approximately 3,900 acres of timberland in Mississippi, and elected to distribute the remaining proceeds to its shareholders in five annual installments. Mr. Higdon testified specifically that Wilbert’s was not in liquidation and had no plans to go into liquidation. Nor was there any indication that Wilbert’s operations were being curtailed or restricted in any manner.

In concluding the dividend should be treated as a liquidation dividend under La. C.C. art. 552, the district court acknowledged that Wilbert’s was “not liquidating in the normal sense of the meaning” of that term. Nevertheless, the court felt the dividend qualified as a liquidation dividend since the sale of Evergreen “resulted in a partial liquidation of substantial assets of Wilbert’s LLC.”

On appeal, Mrs. Templet argues the dividend cannot be considered a liquidation dividend because Wilbert’s was not in the process of being liquidated. In opposition, Mrs. Whitaker contends the disputed dividend was a payment made by Wilbert’s from capital rather than earnings. Thus, she maintains the payment should be treated as a liquidation dividend because it was derived from the liquidation into cash of a substantial asset of Wilbert’s, resulting in a substantial decrease in its book value.

Black’s Law Dictionary defines a “cash dividend” as “[a] dividend paid to shareholders in the form of money.” Black’s Law Dictionary 492 (7th ed.1999). It defines the term “liquidation dividend” as “[a] dividend paid to a dissolving corporation’s shareholders, usually from the capital of the corporation, upon the decision to suspend all or part of its business operations.” Black’s Law Dictionary |s492 (7th ed.1999). Louisiana law authorizes the payment of two types of liquidating dividends: (1) a distribution in liquidation of an LLC; and (2) a distribution in liquidation of a member’s interest. Susan Ka-linka, 9 Louisiana Civil Law Treatise, Limited Liability Companies and Partnerships § 1.21, 58 (West 2001). See also La. R.S. 12:1325 and 1337.

The dividend at issue in this case does not qualify as either of these two types of liquidation dividend. It did not represent a distribution in payment for liquidation of a member’s interest in Wilbert’s; nor can it be considered a distribution in liquidation of an LLC, since Wilbert’s itself is not being liquidated in whole or in part. In fact, there was no indication that Wilbert’s business activities were being suspended, restricted or curtailed in any matter. Although Wilbert’s board elected to sell Evergreen Plantation, a substantial asset consisting of approximately 1,300 acres, Mr. Higdon explained that Wilbert’s used a portion of the sale proceeds to acquire three times as much property in Mississippi as it sold. Moreover, he indicated that the newly acquired Mississippi timberland should over time generate revenues well over what was made growing sugarcane on Evergreen. The record reflects that Wilbert’s was actively engaged in various business activities including oil and gas production, timber, agriculture, residential development, and wetlands mitigation, with total land holdings consisting of at least 120,000 acres. It clearly was not in liquidation. Under these circumstances, the district court erred in classifying the $65,846.58 cash dividend paid to decedent’s estate as a liquidation dividend, and that portion of the judgment so holding is also reversed.

CONCLUSION

For the above reasons, the portion of the district court judgment holding the $19,712.00 check did not, within the contemplation of decedent’s will, constitute cash owned by the decedent at the time of his death is hereby reversed. Further, lathe portion of the district court judgment holding the $65,846.58 dividend paid by Wilbert’s to decedent’s estate in March 2006 was a liquidation dividend, rather than a cash dividend, is also hereby reversed. This matter is remanded to the district court for further proceedings consistent with this opinion. The costs of this appeal are to be paid by appellees.

REVERSED IN PART; AND REMANDED.

      . See State v. Dean, 99-475, p. 6 (La.App. 3rd Cir. 11/3/99), 748 So.2d 57, 60, writ denied. 99-3413 (La.5/26/00), 762 So.2d 1101 (statutory language "cash, and other cash equivalents used in gaming” included checks and other forms of negotiable instruments); Capital Building and Loan Association v. Nicholas, 330 So.2d 364, 365 (La.App. 4th Cir.1976) (a personal check met the requirement that cash payment be made for property sold at a sheriff's auction); Menard v. Muhs, 196 So.2d 536, 538 (La.App. 4th Cir.), writ refused, 250 La. 744, 199 So.2d 181 (1967) (a check "represents money and to all practical intents is money ... the check being the means or vehicle of delivery”); Bates-Crumley Chevrolet Co., Inc. v. Brown, 141 So. 436, 439 (La.App. 2d Cir.1932) ("[a] check represents money and is merely the vehicle or means of delivery of the money.”).


text:
    JAMES CONSTRUCTION GROUP, L.L.C. F/K/A Angelo Iafrate Construction, L.L.C. v. STATE of Louisiana, Through the DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT.
    No. 2007 CA 0225.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 2, 2007.

      Eric A. Kracht, George P. Vourvoulias, Baton Rouge, LA, for Plaintiff/Appellant, James Construction Group, L.L.C. F/K/A Infrate Construction, L.L.C.
    Timothy Strohschein, Baton Rouge, LA, for Defendant/Appellee, State of Louisiana, through the Department of Transportation and Development.
    Before WHIPPLE, GUIDRY, and HUGHES, JJ.
   GUIDRY, J.

|2In this suit to recover $420,000 withheld as stipulated damages for untimely completion of a highway construction project, plaintiff appeals a partial summary judgment granted in favor of the defendant. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

The State of Louisiana, through the Department of Transportation and Development (DOTD), awarded a construction contract to JCG Construction Group, L.L.C. (JCG) for a road project involving Interstate 10 (1-10) and known as the Louisiana Avenue Interchange. The contract provided the project was to be completed within four hundred and forty days for a price of $18,900,905.75. As a result of multiple plan changes amending the contract, forty days were added to the original completion date of the contract. According to DOTD’s calculations, the deadline for completion of the .contract was June 22, 2003. However, the work within the scope of the original contract was not accepted as complete until August 3, 2003. Therefore, DOTD assessed stipulated damages against JCG for a total of forty-two days, at the contractually provided rate of $10,000 per day, and withheld payment of that amount from the contract. price earned by JCG. DOTD accepted all work, including work added by plan changes, as being complete on August 28, 2003.

After DOTD refused JCG’s demands, JCG filed the instant suit to recover $420,000 as the amount withheld for stipulated damages. JCG alleged DOTD was not entitled to any stipulated damages because the actual deadline for completion of the project was August 31, 2003. This contention was based on the claims that: (1) DOTD agreed in Plan Change 22 to grant JCG fifty-six additional days for completion of the contract; and (2) JCG was entitled to twelve additional days because of a delay that was attributable to DOTD in relocating a fiber-optic cable. In addition to recovery of the sum withheld as stipulated damages, JCG also | .¡requested an award of $206,706.51 as damages for additional costs and lost revenues it allegedly suffered as a result of the excessive number of change orders made by DOTD during the construction project.

DOTD filed an answer and reconven-tional demand seeking to recover $55,779.43, which it alleged JCG was overpaid under the contract as a result of the stipulated damages it incurred. Subsequently, DOTD filed a motion for partial summary judgment holding that: (1) it had properly implemented Plan Change 22; (2) JCG was not entitled to a fifty-six-day extension of the completion date under Plan Change 22; (3) JCG was not entitled to a twelve-day extension of the completion date for additional work related to the relocation of a fiber-optic cable; (4) DOTD properly assessed stipulated damages against JCG; and (5) JCG was liable to DOTD for an overpayment of $55,779.43. Following a hearing, the district court granted a partial summary judgment in favor of DOTD and against JCG for $55,779.43. After making an express determination that there was no just cause for delay, the district court designated the judgment as a final judgment pursuant to La. C.C.P. art. 1915 B. JCG has now appealed, designating five assignments of error.

ASSIGNMENTS OF ERROR
1.The district court erred in its conclusion that DOTD properly implemented Plan Change No. 22 in view of uncontroverted evidence that DOTD breached its written promise to extend the contract time fifty-six days.
2. The district court misconstrued the contract, as well as the substantive law regarding prevention of performance and concurrent delays, and disregarded evidence that DOTD caused and/or otherwise contributed to the delays for which it assessed stipulated damages against JCG.
3. The district court erred in its conclusions that JCG was not entitled to time extensions beyond June 22, 2003, for Plan Changes 22 and 29, as well as for the delays caused by the fiber-optic cable relocation.
4. The district court erred in failing to make the required inquiry as to the reasonableness of the stipulated damages and whether they approximated DOTD’s actual damages, disregarding the undisputed evidence that the stipulated damages bore no relationship to DOTD’s actual damages.
U5. The district court improperly admitted into evidence and relied upon affidavits from DOTD representatives that were not served upon opposing counsel more than fifteen days before the motion hearing, as required by La. C.C.P. art. 966 B.

STANDARD OF REVIEW

On appeal, summary judgments are reviewed de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. An appellate court thus asks the same questions as does the trial court in determining whether summary judgment is appropriate: whether there is any genuine issue of material fact, and whether the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966 B; Love v. AAA Temporaries, Inc., 2006-1679, p. 3 (La.App. 1st Cir.5/4/07), 961 So.2d 480, 483.-

A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine factual dispute. The motion should be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. The summary judgment procedure is favored and is designed to secure the just, speedy, and inexpensive determination of every action. La. C.C.P. art. 966 A(2); Love, 2006-1679 at p. 4, 961 So.2d at 483.

The burden of proof is on the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to provide factual evidence sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine | ¡jssue of material fact. La. C.C.P. art. 966 C(2); Love, 2006-1679 at p. 4, 961 So.2d at 483.

ASSIGNMENT OF ERROR NUMBER ONE

In its first assignment of error, JCG asserts the district court committed clear error in construing Plan Change 22 as not requiring a fifty-six day extension for completion of the contract. It argues that, at the very least, the court should have found that a genuine issue of material fact precluded summary judgment on the issue of DOTD’s implementation of Plan Change 22.

The interpretation of a contract is the determination of the common intent of the parties. La. C.C. art.2045. When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent. La. C.C. art.2046. The úse of extrinsic evidence is proper only when a contract is found to be ambiguous after an examination of the four corners of the agreement. Mobil Exploration & Producing U.S. Inc. v. Certain Underwriters Subscribing to Cover Note 95-3317(A), 2001-2219, p. 12 (La.App. 1st Cir.11/20/02), 837 So.2d 11, 23, units denied. 2003-0418 (La.4/21/03), 841 So.2d 805; 2003-0417, 2003-0427, 2003-0438 (La.5/16/03), 843 So.2d 1129-30.

Each provision in a contract must be interpreted in light of the other provisions so that each is given the meaning suggested by the contract as a whole. La. C.C. art.2050. Further, courts .should not strain to find an ambiguity where none exists. Finally, whether a contract is ambiguous is a question of law. When addressing such legal issues, a reviewing court conducts a de novo review of questions of law and renders a judgment on the record. Mobil, 2001-2219 at pp. 12-13, 837 So.2d at 23-24.

In the instant case, Plan Change 22 was added to the contract on May 21, 2003, near the end of the construction project, after DOTD realized it had not included the installation of permanent signs in the scope of the original contract | fiwith JCG. Plan Change 22 provided for the performance of this work by JCG for an additional price. After delineating the additional work to be performed, Plan Change 22 states:

Note: No days will be added by this plan change. Days will be added by a subsequent plan change when contractor completes all the items in original contract days.
As per request of the contractor, 56 calendar days will be granted to the contract for this work only.

On appeal, JCG contends this language constituted a promise by DOTD to extend the June 22, 2003 completion date by fifty-six days. It asserts DOTD breached this agreement by failing to issue a subsequent plan change adding these days to the contract. Alternatively, it argues the record shows that various DOTD personnel have expressed conflicting interpretations of Plan Change 22, which establishes the existence of a genuine issue of material fact precluding summary judgment. Finally, JCG asserts that any ambiguity in the language of Plan Change 22 must be constructed against DOTD, since it drafted the contract.

We find JCG’s contentions meritless. Our examination of the language of Plan Change 22 reveals its terms are clear and unambiguous. It specifically states it will add no additional days tp the contract, but that additional days will be added by a subsequent plan change when all items included within the scope of the original contract are completed. Since the plan change states the additional days will be added when all the original contract work is completed, it clearly was not intended that those additional days be used as an extension for completion of the original contract work itself. Rather, the effect of the language is that the additional days will be utilized only for the performance of the specific work added to the contract by the plan change, i.e., the installation of permanent signs. The additional proviso that the fifty-six additional days will be granted “for this work only” reinforces this interpretation. The phrase “this work only” is a clear preference to the sign installation work specifically delineated in the plan change. Since the language of this contractual provision is clear, no further inquiry may be made in search of the parties’ intent. Therefore, the extrinsic evidence referred to by JCG as to the various manners in which DOTD personnel may have interpreted the language of this provision cannot properly be considered. See La. C.C. art. 2046: Mobil 2001-2219 at p. 12, 837 So.2d at 23.

Further, we disagree with JCG’s assertion that Plan Change 22 cannot be interpreted in the manner we have described, when read in conjunction - with Sections 101.41 and 108.10 of the contract. Section 101.41 deals with plan changes to the contract, and provides, in pertinent part, that:

The document [plan change] will establish reasons for the changes, specification requirements, method of measurement, basis of payment and contract time adjustments for the work affected by the changes. When approved and fully executed, the document becomes a part of the contract and a notice to proceed with the affected work. (Emphasis added.)

Section 108.10 provides that “[t]he contract will be considered complete when all work has been satisfactorily completed, the final inspection made, and the work accepted by the DOTD Chief Engineer.” JCG argues that, since it is clear under Section 101.41 that plan changes are amendments to the contract rather than separate contracts, the contractual scheme established by these provisions does not allow separate time schedules for completion-of the plan change work and the original contract work.

While we agree with JCG’s contention that Plan Change 22 was an amendment to the original contract pursuant to Section 101.41, we find nothing in the language of either this provision or Section 108.10 that prohibits the parties from providing for a separate completion date for additional work added by a plan change. The fact that the contract will not be considered complete until all work is performed does not in itself prohibit the parties from specifically providing by agreement for a separate completion date for particular work under the contract.

IsLastly, we note that, despite the fact that Plan Change 22 provided that JCG would be granted (through the means of a subsequent plan change) fifty-six additional days for the performance of the extra work required by the plan change, this never occurred. However, Michael El-dridge, a DOTD district construction engineer, explained in his deposition testimony that no subsequent plan change was issued to add days because that was expected to happen only when JCG completed all the original contract work, which did not occur until August 3, 2003. At that point, rather than issue a new plan change, DOTD decided to instead stop assessing stipulated damages against JCG. Therefore, no stipulated damages were assessed for the subsequent period of time during which JCG completed the sign installation work required by Plan Change 22. Thus, since the purpose of adding the extra days was for JCG to avoid stipulated damages while performing the sign installation work, stopping the assessment of damages achieved the same purpose.

This assignment of merit is without merit.

ASSIGNMENTS OF ERROR NUMBERS TWO AND THREE

In these assignments of error, JCG argues the district court erred in granting partial summary judgment because genuine issues of material fact exist as to whether DOTD caused or contributed to the delays in completion of the contract work. Specifically, JCG asserts the evidence establishes that it was impossible for it to complete all the contract work any sooner than August 6, 2003, due to the following acts and omissions by DOTD: (1) the amendment of the contract by Plan Change 22 to add work that took fifty-six days to perform; (2) the July 31, 2003 amendment' of the contract by Plan Change 29 to add work that-took two days to perform; and (3) DOTD’s failure until August 6, 2003, to timely remove a fiber-optic cable that prevented JCG from completing work in the area of the cable. Thus, JCG contends it was improper to impose stipulated damages when • causes attributable to DOTD prevented the timely completion of all contract work.

| flOur thorough examination of the documentation offered in support of DOTD’s motion for partial summary judgment fails to support JCG’s assertion that genuine issues of material fact exist as to DOTD’s contribution to the delays that occurred in the project. To ..the .contrary, DOTD’s supporting documents establish that the delays for which stipulated damages were assessed against JCG were not attributable to DOTD.

Initially, we note that JCG’s arguments relating to Plan Change 22 are the same arguments we previously rejected in assignment of error number one. Plan Change 22 did not grant JCG a blanket extension for completion of the work within the scope of the original contract. Further, DOTD established that the sign work included in the plan change did not delay any of the original contract work to be performed by JCG. Therefore, the addition of the sign work did not prevent JCG from timely completion of the original contract work.

Further, although no days were added to the contract for the completion of the additional sign work included in the plan change, JCG was not assessed any stipulated damages as a result of this work. During the period for which stipulated damages were assessed, June 22 to August 3, JCG was performing original contract work in addition to the sign work. It was for the untimely performance of that original contract work that stipulated damages were assessed during this period. Once the original contract work was completed on August 3, no further stipulated damages were assessed. Therefore, even though all the work under the contract was not completed, no stipulated damages were assessed for the subsequent period of time during which JCG completed the additional sign installation work.

As another basis for its assertion that it was impossible for it to have completed the contract work by June 22, JCG relies on the fact that the contract was amended by Plan Change 29 to provide for the removal of a billboard sign that |inwas found to be encroaching on the project’s right-of-way. This plan change became effective on July 31, 2003, and specifically provided for the addition of two days to the contract as a result of the additional work it required. It is JCG’s contention that, since the plan change became effective on July 31 and added two days to the contract, the completion date for the contract should have been extended to August 2.

This argument is specious. In his deposition testimony, Michael Eldridge indicated the billboard removal work included in Plan Change 29 was unrelated to and did not interfere with any of the original contract work. Moreover, the deadline for the original contract work had expired long before Plan Change 29 amended the contract. JCG seems to be arguing that the Plan Change 29 amendment to the contract should somehow have a retroactive effect excusing the untimely completion of the original contract work. We disagree. If JCG’s position were accepted, it would have the effect of extending the contract, not by two days, but by forty-one days, from June 22 to August 2. The parties to the contract clearly did not envision such a result. They agreed to the addition of two days for the extra work included in Plan Change 29, and the Plan Change Summary Report introduced by DOTD established that two days were in fact added to the original completion date in fulfillment of this agreement.

Finally, JCG contends it was delayed in completing the contract work by the discovery on July 2 of a buried fiber-optic cable in an area where it was performing excavation work for a drainage ditch. The presence of the cable, which was the responsibility of DOTD to remove, prevented the completion of the excavation work. The cable was moved on August 6. Thus, JCG argues that DOTD cannot recover stipulated damages for delays that occurred before August 6, because DOTD’s delay in moving the cable made it impossible for JCG to complete the contract work before that date.

luDOTD admitted that the delay in moving the fiber-optic cable prevented JCG from completing the excavation work in the area where the cable was located. It was also established that this excavation work was part of the original contract work. Therefore, JCG’s argument would have merit if this excavation work was the only original contract work that remained incomplete during the period for which stipulated damages were assessed or if the cable’s presence prevented JCG from completing other original contract work. However, the fallacy in JCG’s position is that DOTD established through the deposition testimony of Michael Eldridge and the affidavit of Hiro Alexandrian, the project engineer, that there was original contract work, other than the excavation work affected by the cable, that was not completed by JCG until August 3. Mr. El-dridge further testified in his deposition that the presence of the cable did not delay JCG’s work (other than the excavation work itself) until August 3, when all other original contract work was accepted by DOTD as complete.

After August 3, JCG was delayed by the presence of the cable because it could not perform the excavation work in that area and had no other original contract work to perform. The cable was moved on August 6. Nevertheless, JCG was not prejudiced by the additional three-day delay because DOTD stopped assessing stipulated damages on August 3. Thus, no stipulated damages were imposed for the additional time required for JCG to perform the work affected by the presence of the fiber-optic cable.

For these reasons, we find no genuine issues of material fact existed as to whether any of the delays in completion of the original contract work for which stipulated damages were assessed were attributable to DOTD. These assignments of error lack merit.

ASSIGNMENT OF ERROR NUMBER FOUR

|12JCG asserts the district court erred in enforcing the contract’s stipulated damages clause without inquiring into the reasonableness of the amount stipulated, and in ignoring evidence that the stipulated damages did not approximate DOTD’s actual damages.

In arguing stipulated damages were unwarranted in this case, JCG points out the DOTD does not claim it suffered any actual damages itself from the delays in completion of the contract, and admitted in deposition that the stipulated $10,000 per day figure bears no relationship to actual damages suffered by DOTD. Thus, JCG maintains the alleged damages are merely theoretical, since DOTD maintains they are based on damages suffered by the motoring public, and the record contains no proof of any motorist sustaining any actual loss or damage as a result of delays attributable to JCG. JCG further argues that DOTD does not have the legal right or procedural capacity to represent the interests of the motoring public.

In opposition, DOTD notes that the stipulated damages are based on the daily user costs incurred by the public as a result of the interference and inconvenience suffered by motorists during highway construction. According to the affidavit of Jeffrey Lambert, a DOTD engineer, he used a program developed by the Federal Highway Administration to calculate the daily road user costs associated with the construction project between June 22 to August 3, 2003, as a result of the reduction of the speed limit on I — 10 during that period from 70 mph to 45 mph. His analysis “showed that the daily road user cost per day during this period because, of the reduced speed limit was $21,135.”

The purpose of a stipulated damages clause is to fix the measure of damages in advance and to constrain the timely performance of the. principal obligation. It is not necessary for the plaintiff to show pecuniary or other actual damage to enforce the clause. La. C.C. art.2009; Utley-James of Louisiana, Inc. v. State, Division of Administration, Department of Facility Planning and Control, 94-2504, |isp. 6 (La.App. 1st Cir.10/6/95), 671 So.2d 473, 476. The stipulated amount replaces the need for damages to be determined by the court. Lombardo v. Deshotel, 94-1172, p. 6 (La.11/30/94), 647 So.2d 1086, 1090. However, courts may modify stipulated damages if they are so manifestly unreasonable as to be contrary to public policy. La. C.C. art.2012; Lombardo, 94-1172 at p. 6, 647 So, 2d. at 1090. Nevertheless, because a stipulated damages clause gives rise to a presumption that the obligee has suffered loss due to the failure to perform, the obligor bears the burden of defeating that presumption. See La. C.C. art.2009, Revision Comment (d); Saul Litvinoff, 6 Louisiana Civil Law Treatise, Obligations § 13.16, 405 & § 13.18, 408 (West 1999).

Thus, in the present case, JCG bears the burden of rebutting the presumption that the stipulated damages agreed to by the parties were reasonable. In order to meet this burden, JCG must establish, not only that the stipulated damages were manifestly unreasonable, but also that they were so manifestly unreasonable as to offend public policy. See Lombardo, 94-1172 at p. 6, 647 So.2d. at 1090; Litvinoff, 6 Louisiana Civil Law Treatise, Obligations § 13.18, 408.

Based on our review of the record, we find no genuine issues of material fact exist as to the reasonableness of the stipulated damages. Under La. R.S. 32:2 A(l), DOTD has the duty, as an exercise of the police power of the state, to supervise and regulate all traffic on highways within the state. In the exercise of this duty, DOTD entered into the road construction contract at issue herein with JCG. Under the heading “DISINCENTIVE FOR LATE CONSTRUCTION”, the contract provided for the imposition of stipulated damages of $10,000 per day for each day of late completion of the contract work. The provision states specifically that these stipulated damages are imposed, not as a penalty, but “[i]n order to minimize construction duration and construction operations’ impact on roadway users ... ” | uThe $10,000 figure was based on “the daily road user costs,” which was defined elsewhere in the contract as representing “the average daily cost of interference and inconvenience to the road user.”

A contract has the effect of law between the parties. La. C.C. art.1983. Moreover, the parties are free to contract for any object that is lawful. La. C.C. art.1971. “Freedom of contract” signifies that parties to an agreement have the right and power to fashion their own bargains. Louisiana Smoked Products, Inc. v. Savoie’s Sausage and Food Products, Inc., 96-1716, p. 14 (La.7/1/97), 696 So.2d 1373, 1380. In this case, the stated object of the stipulated damages clause was to minimize the impact of the construction on the motoring public. In accordance with that object, the contract indicated the measure of those damages would be the average daily road user costs, representing the interference and inconvenience suffered by motorists as a result of the construction.

In view of its statutory duty to supervise and regulate roadways, DOTD had the authority to enter into an agreement with a contractor that sought to limit the impact of road construction on the motoring public by the use of stipulated damages as a disincentive for late construction, and to specify that those damages would be based on the daily road user costs to the motoring public. JCG entered freely into this contract, and cannot now, in order to avoid its end of the bargain, complain that some other measure of damages should have been used. We further note that JCG did not provide any documentation to show that the $10,000 daily user cost was unreasonable. To the contrary, DOTD introduced evidence that the actual daily road user costs incurred by the motoring public during the period in question was $21,135.

Accordingly, we find this assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER FIVE

| isln this assignment of error, JCG contends the district erred in admitting into evidence two affidavits offered by DOTD at the motion hearing.

DOTD filed its motion for partial summary judgment and supporting documents on July 13, 2006. A hearing o,n the motion was scheduled for November 6. JCG filed an opposition memorandum, with exhibits, on October 27. DOTD responded by serving opposing counsel with a reply memorandum, with attached exhibits, on November 2. At the motion hearing, JCG objected to the introduction of two of the affidavits attached to DOTD’s reply memorandum on the grounds that they were not timely served under the provisions of La. C.C.P. art. 966 B. The district court overruled the objection on the basis that the affidavits were part of DOTD’s response to JCG’s October 27 opposition memorandum and exhibits. In so ruling, the court observed, “I don’t know how they [DOTD] could do a rebuttal affidavit before they have received your opposition.”

Louisiana Civil Code Procedure article 966 B provides that a motion for summary judgment and supporting affidavits shall be served at least fifteen days before the motion hearing. In Buggage v. Volks Constructors, 2006-0175 (La.5/5/06), 928 So.2d 536, the Louisiana Supreme Court reversed this court and reinstated the ruling of a trial court that had excluded a late-filed opposition and affidavit that was filed a few minutes before a summary judgment hearing. However, while noting that the time limitation established by La. C.C.P. art. 966 B was mandatory, it nevertheless indicated a trial court has discretion as to whether or not to admit a late-filed affidavit. Rather than holding that untimely affidavits must be excluded by the trial court, the Court specifically stated that such affidavits “can” be excluded by the trial court, and noted that the trial court “acted within its discretion” in excluding the opposition. Buggage, 2006-0175 at p. 1, 928 So.2d at 536. Additionally, other courts of this state have also indicated that |1fidistrict courts have discretion, absent prejudice, to consider affidavits served after the time prescribed by La. C.C.P. art. 966 B. See Jones v. State, 42,034, pp. 8-9 (La.App.2d Cir.4/25/07), 956 So.2d 103, 108, unit denied, 2007-1113 (La.9/14/07), 963 So.2d 1000; Savoie v. Savoie, 2003-893, p. 6 (La.App. 5th Cir.12/30/03), 864 So.2d 742, 745; Kops v. Lee, 2003-1407, p. 11 (La.App. 4th Cir.3/31/04), 871 So.2d 1187, 1195; White v. Gulf States Utilities, 465 So.2d 287, 289 (La.App. 3rd Cir.), writ denied, 468 So.2d 576 (1985).

In this case, we find no abuse of discretion in the trial court’s decision to admit the affidavits in question. As the district court observed in overruling the objection, the affidavits were filed by DOTD on November 2 in response to defenses raised by JCG in its October 27 opposition memorandum. Moreover, JCG does not allege any specific prejudice it suffered as a result of the admission of these affidavits, other than generally alleging it had inadequate time to respond, despite the fact that it had at least three full days to do so. Significantly, JCG did not request that this matter be held open to give it an opportunity to respond. Under these circumstances, the district court did not abuse its discretion in admitting the affidavits in question.

This assignment of error lacks merit.

CONCLUSION

For the above reasons, we affirm the district court judgment granting partial summary judgment in favor of DOTD. All costs of this appeal are to be paid by the appellant, JCG. AFFIRMED.

WHIPPLE, J., concurs.

      . Section 101.41 of the contract provides that plan changes become a part of the contract.

      . Under La. C.C. art. 1994, a delay in performance by an obligor is included within the meaning of a "failure to perform” a conventional obligation.

      . Specifically, JCG objected to the affidavit (DOTD-7) of Hiro Alexandrian, the DOTD project engineer, and the affidavit (DOTD-IO) of Jeffrey Lambert, a DOTD pavement engineer.


author: PARRO, J. KUHN, J.,

text:
    In the Matter of the SUCCESSION OF Winston R. CLARK.
    No. 2006 CA 2210.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 2, 2007.

      Lawrence W. Bell, Gonzales, LA, for Plaintiff-Appellant, Brian Scott Clark.
    Malcolm J. Dugas, Jr., Dugas, LeBlane & Associates, L.L.C., Donaldsonville, LA, for Defendant-Appellee, Mary Beth Clark.
    Before PARRO, KUHN, and DOWNING, JJ.
   PARRO, J.

|gThe only child of the testator/decedent appeals a judgment, sustaining á peremptory exception raising the objection of no right of action that was filed by the executrix of his father’s estate and dismissing the child’s petition to have his father’s testament declared to have been revoked. For the following reasons, the judgment is reversed and remanded.

Factual Background and Procedural History

Winston R. Clark (Winston) died during November 2005. According to an affidavit of death and heirship filed into the record by Brian Scott Clark (Brian), Winston was married three times and fathered only one child, Brian, who was born of Winston’s first marriage. Based on his belief that Winston had left a last will and testament, Brian filed a petition to have a notary appointed for purposes of inventorying a safety deposit box that had been rented by Winston. The court-appointed notary reported that he had discovered the original of Winston’s last will and testament, which was dated January 18, 1995. In his testament, Winston directed, in pertinent part:

In the event that my wife, Mary Beth Paille Clark survives me, I will and bequeath to her all of the property which I own at the date of my death, of every kind and character, less the forced portion inherited by son, Bryan Scott Clark, only in the event that such a forced ■portion is mandated by law at the time of my death. In the event that the laws of the State of Louisiana does not require or mandate a forced portion to my son at the time of my death, I will and bequeath all of my property owned by me at my death to my wife, Mary Beth Paille Clark.
* * *
In the event that my wife, Mary Beth Paille Clark, predeceases me, I then will all of the property that I own at the date of my death to a trust for the benefit of Melissa Yvette Paille, Wendy Ann Ze-ringue, and Ashley Renee Zeringue, being beneficiaries of both principal and income, and having as the trustee, Cleveland Paille, my brother-in-law.

Mary Beth Paille Clark (Mary Beth) was Winston’s third wife according to Brian’s affidavit of death and heirship. The allegations in Brian’s petition indicate that Winston | sand Mary Beth were married on October 30, 1976, and were divorced on October 3, 2003, subsequent to the execution of the 1995 testament. Following the discovery of the- 1995 testament, Mary Beth filed a petition for probate. Pursuant to the terms of the testament, the trial court named Mary Beth as the executrix of Winston’s succession.

Subsequently, Brian filed a petition to declare that the testament had been revoked by operation of law, to remove Mary Beth as the executrix, and for a temporary restraining order and preliminary injunction. In his petition, Brian alleged that (1) he was Winston’s only child, (2) Mary Beth and Winston were married on October 30, 1976, (3) Winston executed his last will and testament on January 18, 1995, (4) .the couple was divorced by judgment dated October 3, 2003, (5) Winston died on November 26, 2005, and (6) Mary Beth and Winston were not married to each other at the time of Winston’s death. Based on these allegations, Brian averred:

Decedent’s last will and testament dated January 18,1995, and the legacies, testamentary designations and appointments therein were revoked as of the date of his death, November 26, 2005, by operation of law.

Mary Beth responded by filing an exception raising the objection of no right of action, urging the inapplicability of LSA-C.C. art. 1608(5). This article provides that the revocation of a legacy occurs when the testator is divorced from the legatee after the testament is executed and at the time of his' death. Mary Beth urged the testament was valid because this provision was enacted after the testament was executed.

At the hearing on the exception, counsel for Mary Beth urged that Brian did not have a right of action because he was not an heir, a legatee, or the executor of Winston’s estate. In light of In re Succession of Gonzales, 03-0823 (La.App. 4th Cir. 3/10/04), 868 So.2d 987, Mary Beth argued that Brian did not have standing in this case. Brian countered by arguing that as the only child of the deceased, he had the right to challenge the validity of the testament under LSA-C.C. art. 1608(5). Mary Beth responded that even if LSA-C.C. art. 1608(5) applied retroactively, Brian still would not have standing since the testament provided for “secondary” legatees. At the close of |4the hearing, Mary Beth’s exception was sustained, and Brian’s petition was dismissed. Brian appealed.

No Right of Action

Generally, an action can only be brought by a person having a real and actual interest which he asserts. LSA-C.C.P. art. 681. The exception raising the objection of no right of action is designed to test whether the plaintiff has a real and actual interest in the action. See LSA-C.C.P. art. 927(A)(5). The function of the objection of no right of action is to determine whether the plaintiff belongs to the class of persons to whom the law grants the cause of action asserted in the suit. Louisiana Paddlewheels v. Louisiana Riverboat Gaming Com’n, 94-2015 (La.11/30/94), 646 So.2d 885, 888. The exception of no right of action assumes that the petition states a valid cause of action for some person and questions whether the plaintiff in the particular case is a member of the class that has a legal interest in the subject matter of the litigation. Id. The party raising a peremptory exception bears the burden of proof. Falcon v. Town of Berwick, 03-1861 (La.App. 1st Cir.6/25/04), 885 So.2d 1222, 1224. Trial court rulings sustaining exceptions raising the objection of no right of action are reviewed de novo on appeal because they involve questions cf law. In re Succession of Jones, 03-0238 (La.App. 1st Cir.11/7/03), 868 So.2d 54/55.

On the trial of a peremptory exception raising the objection of no right of action, evidence is ■ admissible to support or controvert the objection pleaded when the grounds thereof do not appear from the petition. LSA-C.C.P. art. 931. Because neither party presented any evidence on the objection of no right of action, this court must decide, on the basis of Brian’s allegations alone, whether he belongs to the class of persons to whom the law grants the cause of action asserted in the suit.

There are two kinds of succession: testate and intestate. LSA-C.C. art. 878. Testate succession results from the will of the deceased, contained in a testament executed in a form prescribed by law. LSA-C.C. art. 874. Intestate succession results from provisions of law in favor of certain persons, in default of testate successors. LSAC.C.-j sart. 875. Intestate successors are also called heirs, and testate successors are also called legatees. LSA-CC. art. 876.

In the absence of a valid testamentary disposition, the undisposed property of the deceased devolves by operation of law in favor of his descendants, ascendants, and collaterals, by blood or by adoption, and in favor of his spouse not judicially separated from him, in the order provided in and according to LSA-CC. arts. 881 through 901. LSA-CC. art. 880. Pertinent to the facts of this case is LSA-CC. art. 888, which provides that descendants succeed to the property of their ascendants. Therefore, in the absence of a valid testamentary disposition, Brian, as Winston’s descendant, would inherit from Winston under the law of intestate succession.

With respect to testate succession, testamentary dispositions are particular, general, or universal. LSA-CC art. 1584. A universal legacy is a disposition of all of the estate, or the balance of the estate that remains after particular legacies. LSA-CC art. 1585. The legacy to Mary Beth is a universal legacy in that it disposes of all of Winston’s estate.

A legacy lapses when the legacy is declared invalid. LSA-CC. art. 1589(6). Testamentary accretion takes place when a legacy lapses. Accretion takes place according to the testament, or, in the absence of a governing testamentary provision, according to LSA-CC arts. 1591 through 1596. LSA-CC. art. 1590. Although Winston included a testamentary provision to deal with the issue of accretion, this provision arguably only dealt with accretion in the event that Mary Beth predeceased him and did not cover the possibility of the legacy to Mary Beth lapsing for any other reason.

| BIn the event that the testamentary provision addressing the issue of accretion is found not to govern the contingency involved in this case, the provisions of LSA-C.C. arts. 1591 through 1596 would apply. See LSA-C.C. art. 1590. Any portion of the estate not disposed of under LSA-C.C. arts. 1591 through 1595 devolves by intestacy. LSA-C.C. art. 1596.

In the event that the universal legacy in favor of Mary Beth lapsed by operation of law, Brian would possibly stand to inherit all of his father’s estate under the law of intestacy. Being mindful that the exception of no right of action assumes that the petition states a valid cause of action for some person, it stands to reason that Brian, as Winston’s descendant, is a member of the class that has a real or actual interest in the subject matter of the litigation, such that he would have a right to bring an action to have the court determine whether the legacy in favor of Mary Beth had lapsed by virtue of LSA-C.C. art. 1608(5). Therefore, we conclude that the trial court erred in finding that Brian had no right of action and in sustaining Mary Beth’s exception.

Decree

For the foregoing reasons, the judgment of the trial court sustaining the peremptory exception raising the objection of no right of action and dismissing Brian Scott Clark’s petition is reversed. This matter is remanded to the trial court for further proceedings consistent with this opinion. Costs of this appeal will be assessed after a final disposition of this matter.

REVERSED AND REMANDED.

KUHN, J., concurs and assigns reasons.

KUHN, J.,

concurring.

hi concur in the result reached. The majority notes that the party raising a peremptory exception bears the burden of proof. Since Mary Beth failed to introduce any evidence at the trial of the exeeption, Mary Beth failed to show that Brian, the decedent’s alleged only child, does not have an interest in the subject matter of the suit. Although Mary Beth referred to the decedent’s last will and testament in the pleading raising the exception of no right of action, she failed to introduce the testament as evidence. Therefore, Mary Beth failed to meet her burden of proof, and the trial court improperly sustained the exception.

      . In the record, Brian is sometimes referred to as "Bryan.”

      . In his affidavit of death and heirship relative to his falter, Brian declared that he was over the age of 23 and was in good mental and physical health.

      .Testamentary dispositions currently are classified as particular, general, or universal legacies. See LSA-CC. arts. 1584-1587 (effective July 1, 1999). However, at the time the decedent executed the testament at issue in this case, LSA-C.C. art. 1605 provided that testamentary dispositions were classified as being either universal, under a universal title, or under a particular title. The 1997’revision comments to Article 1584 note that “[t]he names and characteristics of universal legacies and particular legacies are retained in this revision, but the name of the ‘legacy under universal title’ has been changed to 'general' legacy, and its characteristics are slightly modified in the new definition.”

      . Article 1589 was enacted by 1997 La. Acts, No. 1421, § 1, effective July 1, 1999. It reproduced the substance of Articles 1697 through 1699 and 1703 of the Louisiana Civil Code of 1870 and did not change the law. LSA-C.C. art. 1589, Revision Comments-1997, comment (a).

      . Article 1590 was enacted by 1997 La. Acts, No. 1421, § 1, effective July 1, 1999. In this Article, the term "accretion" has been expanded to include the disposition of all lapsed legacies, not just joint legacies. LSA-C.C. art. 1590, Revision Comments-1997, comment (a).

      . Article 1596 was enacted by 1997 La. Acts, No. 1421, § 1, effective July l, 1999. This Article reproduced the substance and clarified the provisions of LSA-C.C. art. 1709 (1870). It did not change the law. LSA-C.C. art. 1593, Revision Comments-1997.


author: DOWNING, J.

text:
    Alfred NORRED, Jr. v. Honorable Elmer LITCHFIELD, Sheriff and East Baton Rouge Parish Sheriff's Office.
    No. 2006 CA 2156.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 2, 2007.

      Kirk A. Williams, Baker, LA, for Plain-tifi/Appellant, Alfred Norred, Jr.
    Ryan N. Ours, Baton Rouge, LA, for Defendants/Appellees, Honorable Elmer Litchfield, et al.
    Before PARRO, KUHN and DOWNING, JJ.
   DOWNING, J.

■ | ¡.Alfred Norred, Jr. appeals a summary judgment in favor of Elmer Litchfield, Sheriff of East Baton Rouge. Parish, Louisiana, in his official capacity. For the following reasons, we affirm the judgment of the trial court.

Mr. Norred alleges in his petition that he was a prisoner in the East Baton Rouge Parish prison in October 2003 and that, because of his medical condition, he was receiving continuous oxygen. He alleges that while he was sleeping, he fell off an examination bed close to the source of oxygen and injured himself. He alleges that his damages were caused by the negligence or legal fault of Sheriff Litchfield in his capacity as sheriff.

Sheriff Litchfield subsequently filed a motion for summary judgment, asserting that he did not own and did not control the East Baton Rouge parish medical department or its contents. He further asserted that he did not provide medical care to the prisoners and that his office is not a medical provider. An affidavit from Sheriff Litchfield personally, based on his personal knowledge, supported these assertions. He argued, therefore, that he had no duty toward Mr. Norred regarding his medical treatment or the bed from which Mr. Norred fell.

Ruling in favor of Sheriff Litchfield, the trial court found that his responsibilities did not include making sure that the bed worked adequately or providing medical care. The trial court entered judgment accordingly.

Mr. Norred now appeals, asserting three assignments of error summarized as follows: 1) the trial court erred in granting summary |,judgment on the grounds that Sheriff Litchfield is not as a matter of law responsible for the damages he suffered in the medical unit; 2) the trial court erred by misinterpreting La. R.S. 15:702 et seq. to mean that Sheriff Litchfield is not responsible for the care of the inmates he sends to the medical unit; and 3) the trial court erred in not recognizing that under the circumstances present, while acting as custodian of the prison, Sheriff Litchfield was responsible for Norred’s safety.

We conclude that Mr. Norred’s arguments misapprehend the law.

Our law provides, and Sheriff Litchfield generally acknowledges, that prison authorities owe a duty to exercise reasonable care to protect inmates from harm. Conerly v. State of Louisiana through the Louisiana State Penitentiary and the Department of Corrections, 02-1852, p. 9 (La.App. 1 Cir. 6/27/03), 858 So.2d 636, 645. This duty, however, is qualified by a requirement that penal authorities have reasonable cause to anticipate the harm: “penal authorities have a duty to use reasonable care in preventing harm after they have reasonable cause to anticipate it.” (Emphasis added.) State ex rel. Jackson v. Phelps, 95-2294, p. 3 (La.4/8/96), 672 So.2d 665, 667.

Here, nothing in Mr. Norred’s affidavit filed in connection with his motion for summary judgment, or any other admissible evidence filed into the record, suggests that Sheriff Litchfield’s deputies had any reasonable cause to anticipate that Mr. Norred would fall out of his bed and harm himself. The affidavit fails to describe any obvious quality or defect in the bed such that the deputies should have been on notice that it was dangerous. LNor does Mr. Norred’s affidavit suggest the deputies had any specialized training or knowledge that would alert them of Mr. Norred’s potential fall.

Further, nothing in Mr. Norred’s affidavit suggests that the deputies failed to exercise reasonable care. At best, Mr. Norred’s affidavit suggests that deputies were present and guarding him in the medical unit, helping where they could.

Regarding La. R.S. 15:702 et seq., statutes governing prisons and correctional institutions, we note that Mr. Norred points to no specific provision of these statutes that he alleges were violated. Our review of these statutes reveals no greater duty on Sheriff Litchfield than is stated above. Accordingly, we find no merit in this argument.

Insofar as Mr. Norred may be making a claim for damages arising from a defective product under La. G.C. art. 2317 against Sheriff Litchfield, we note that Mr. Norred has failed to offer facts necessary for him to prevail under La. R.S. 9:2800 C. This subsection provides:

Except as provided for in Subsections A and B of this Section, no person shall have a cause of action based solely upon liability imposed under Civil Code Article 2317 against a public entity for damages caused by the condition of things within its care and custody unless the public entity had actual or constructive notice of the particular vice or defect which caused the damage prior to the occurrence, and the public entity has had a reasonable opportunity to remedy the defect and has failed to do so.

Mr. Norred’s affidavit does not assert that the offending bed was in Sheriff Litchfield’s custody. As discussed above, there is no evidence that |sSheriff Litch-field’s deputies had actual or constructive notice of any particular vice or defect alleged to have caused the damage prior to its occurrence. In fact, no vice or defect is alleged. Nor is there any evidence that Sheriff Litchfield had any opportunity to remedy any possible defect and failed to do so.

We also note Mr. Norred’s argument that Sheriff Litchfield had a duty to warn Mr. Norred of the risk of falling off the bed while asleep. But there is no evidence Sheriff Litchfield’s deputies knew of any such risk. Further, “under Louisiana civil law precepts, a person who observes that another is in obvious peril [ ] has the slight duty to warn of known imminent dangers when he can do so without personal risk.” Beach v. Pointe Coupee Elec. Membership Corp., 04-2255, pp. 4-5 (La.App. 1 Cir. 11/16/05), 917 So.2d 556, 558, writ denied, 06-0165 (La.5/26/06), 930 So.2d 21. Even so, Mr. Norred offers no evidence that Sheriff Litchfield’s deputies knew at any time that Mr. Norred was in imminent peril of falling off his bed before he did so.

To prevail on its motion for summary judgment, Sheriff Litchfield needed only to point out an absence of factual support for one or more essential element of Mr. Norred’s claim. La. C.C.P. art. 966 C(2). He has done this. Therefore, the burden then shifted to Mr. Norred to produce factual support sufficient to establish that he would be able to satisfy his evidentiary-burden of proof at trial. He did not do this. Accordingly, no genuine issue of material fact exists. And the trial court did not err in | ^granting summary judgment in favor of Sheriff Litchfield. See La. C.C.P. art. 966 B.

Concluding that Mr. Norred’s assignments of error are without merit, we affirm the judgment of the trial court.

DECREE

For the foregoing reasons we affirm the judgment of the trial court. Costs of this appeal are assessed against Alfred Norred, Jr.

AFFIRMED.

      . The petition also purportedly made the “East Baton Rouge Parish Sheriffs Office” a defendant. It is well-settled law, however, that a Sheriff's Department is not a legal entity capable of being sued, such status being reserved for the Sheriff. Valentine v. Bonneville Ins. Co., 96-1382, pp. 4-5 (La.3/17/97), 691 So.2d 665, 668.

      . The City of Baton Rouge/Parish of East Baton Rouge and their mayor/president were added as defendants, but they were not parties to the summary judgment at issue.

      . While the unverified petition makes allegations about the dimensions and characteristics of the bed, none of these qualities of the bed, or why they might make the bed defective or unreasonably dangerous, are asserted in Mr. Norred’s affidavit in opposition to Sheriff Litchfield’s motion for summary judgment. Nor is a defect or danger asserted in any other affidavit or admissible evidence.

      . Louisiana Civil Code art. 2317 provides:
      We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody. This, however, is to be understood with the following modifications.
      Louisiana Civil Code art. 2317.1 provides:
      The owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care. Nothing in this Article shall preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate case.

      . This paragraph provides as follows:
      The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.