author: WELCH, J.

text:
    STATE of Louisiana v. Calvin LINDSEY.
    No. 2005 KA 0465.
    Court of Appeal of Louisiana, First Circuit.
    June 8, 2007.
    Richard J. Ward, Jr., District Attorney, Elizabeth A. Engolio, Asst. District Attorney, Scott C. Stassi, Asst. District Attorney, Plaquemine, for State — Appellee.
    Gwendolyn K. Brown, Baton Rouge, for Defendant — Appellant Calvin Lindsey.
    Before: WHIPPLE, McCLENDON, . and WELCH, JJ.
   WELCH, J.

| ¡/The defendant, Calvin Lindsey, was charged by bill of information with distribution of a Schedule II controlled dangerous substance (cocaine), a violation of La. R.S. 40:967(A)(1). The defendant pled not guilty. Following a jury trial, the defendant was found guilty as charged. He was sentenced to nine (9) years imprisonment at hard labor, with the first two years of the sentence to be served without the benefit of parole, probation, or suspension of sentence. In finding that the trial court erred in denying the defendant’s challenge for cause of a prospective juror, we reversed the conviction, vacated the sentence, and remanded for a new trial. State v. Lindsey, 2005-0465 (La.App. 1st Cir.12/29/05), 928 So.2d 541 (Whipple, J. dissenting). The Louisiana Supreme Court reversed our decision, reinstated the defendant’s conviction and sentence, and remanded the matter back to this court for consideration of the defendant’s remaining assignment of error, which was pretermit-ted in the original appeal. State v. Lindsey, 2006-255 (La.1/17/07), 948 So.2d 105. We now affirm the defendant’s conviction and sentence.

FACTS

On March 11, 2003, several police officers from the L.E.A.P. Task Force of the Plaquemine City Police Department, assisted by police officers from the Vermillion Parish Sheriffs Office, were conducting an undercover narcotics operation around the Plaquemine area in Iberville Parish. The undercover agents drove around the area purchasing narcotics from street-level narcotics dealers.

The defendant, who had one leg and was in a wheelchair, approached one of the undercover vehicles, which was equipped with a wireless transmitter and a video recorder, and asked the officers what they needed. The officer driving the vehicle told the defendant he needed a “forty” (slang for $40.00 worth of crack cocaine). The defendant told the officer to “make a block” and meet him on the other side of the tracks. When they met at this second location, the defendant sold |sto the officer on the passenger side two rocks of .19 grams of crack cocaine for forty dollars. The transaction was videotaped.

ASSIGNMENT OF ERROR

In this assignment of error pretermitted in the original appeal, the defendant argues that the trial court erred in overruling defense counsel’s hearsay objection to certain testimony by Sergeant Jamie Wha-ley. Specifically, the defendant contends that Sergeant Whaley’s testimony regarding what he heard over a wireless transmission constituted impermissible hearsay.

At the trial, Sergeant Whaley testified that Sergeant Joey Landry and Sergeant Shane Suire were the undercover officers who purchased the cocaine from the defendant. Sergeant Whaley, who was in another vehicle, was able to hear the drug buy because the vehicle that Sergeants Landry and Suire were in was equipped with a wireless transmitter that transmitted audio conversations from their vehicle to Sergeant Whaley’s vehicle.

When Sergeant Whaley was asked on direct examination if he could explain what took place, Sergeant Whaley responded, “Yes, sir. We were listening to the wire and the agents were traveling east on what is Haase Street when they were flagged down by a subject which they described as being in a wheelchair and having one leg. The subject asked them what they needed and -” At this point, defense counsel objected to hearsay and argued that Sergeant Whaley was testifying as to what someone told him. The trial court ruled that Sergeant Whaley could testify only as to what he heard, not what someone told him. Following this ruling, Sergeant Whaley testified as follows:

Yes, sir. I heard the subject stop with the subject (sic). The subject then asked what they needed and Sergeant Landry replied he needed a forty, which is street slang for forty dollars worth of crack cocaine. The subject that he was talking to then replied to him to cross the tracks and meet him over on the same street but across the tracks.

|4The statements made by the defendant were admissible against him as a party admission under La. C.E. art. 801(D)(2)(a). Accordingly, the defendant’s statements were nonhearsay. Moreover, the statements made by both the defendant and Sergeant Landry, as they pertained to the drug transaction, constituted things said or done and were, therefore, nonhearsay under La. C.E. art. 801(D)(4). See State v. Kidd, 568 So.2d 175, 179-180 (La.App. 2nd Cir.1990).

In his brief, while recognizing that admissions are nonhearsay, the defendant nonetheless contends that Sergeant Wha-ley’s testimony should not have been allowed because Sergeant Whaley could not positively identify the defendant. According to Sergeant Whaley’s testimony on cross-examination, he did not have visual contact with the defendant during the drug buy and heard only a voice over the transmitter. Sergeant Whaley stated that he first saw the defendant after the defendant made contact with the agents and later observed the defendant crossing Railroad Avenue over the tracks.

While defense counsel’s objection at trial was confined to the issue of hearsay, the defendant raises for the first time on this appeal the issue of proof of his identity. If it is his claim that the State did not adequately establish his identity, the defendant should have raised the issue in an assignment of error addressing the sufficiency of the evidence. See State v. Williams, 613 So.2d 252, 255-256 (La.App. 1st Cir.1992). Nevertheless, we note that the State established the defendant’s identity through several witnesses, particularly Sergeant Suire. Sergeant Suire, the undercover agent who purchased the cocaine from the defendant, testified on direct examination as follows:

Q. Is there any question in your mind that the defendant seated here, Calvin Lindsey, was in fact the person who sold you the crack cocaine?
A. I have no doubt, he was.
Q. Had you ever seen him before?
|bA. No, sir.
Q. And you hadn’t seen him since; have you?
A. Correct.
Q. You’ve had an opportunity to look at the video tape (sic), of course?
A. That’s correct.
Q. Not based on the video tape (sic) and not based on your initial contact with him, but based solely on the point where he put the cocaine into your hand, is there any question that that’s the individual that did it?
A. Correct.
Q. I asked you about your identification, when he placed the cocaine in your hand you made the positive I.D.; was he also, in fact, the same individual that your partner discussed the transaction with?
A. Sure.
On cross-examination, Sergeant Suire testified as follows:
Q. Okay. And it’s the facial features that you’re recognizing, not just the fact that somebody has part of a leg missing; is that correct?
A. Correct.
Q. Okay. And you have no doubt in your mind; is that correct?
A. That’s correct.
Q. Okay. Now, we heard Sergeant Whaley, Jamie Whaley testified earlier and he said that he was not in visual contact. In fact, he said that he didn’t see anything until the actual transaction took place, and he was about two hundred yards, a couple hundred yards away, okay. And he said that he recognized facial features, okay. Do you have any dispute with that? Okay. Did he also look at the video tape (sic) that night?
A. It was he and probably several other agents, definitely.
Q. Okay. But the identification, you’re saying, is clear from that video tape (sic); correct?
|fiA. Sure.
Q. And there’s no doubt in your mind even though you never saw the person before, you had about two minutes of contact, total time, two separate contacts one afternoon just a few minutes apart, total time of two minutes and you’re positive based upon the facial features that the defendant, Mr. Lindsey, is the same person that you came into contact with that night?
A. No doubt in my mind.
Q. No doubt in your mind.?
A. Correct.

The assignment of error is without merit.

For the foregoing reasons, the defendant’s conviction and sentence are affirmed.

CONVICTION AND SENTENCE AFFIRMED.


source: Caselaw Access Project

author: PARRO, J. (Byrnes, J., concurring).

license: Public Domain

text:
    Julius Wilson FONTENET v. CYPRESS BAYOU CASINO and John Wormer Smith.
    No. 2006 CA 0300.
    Court of Appeal of Louisiana, First Circuit.
    June 8, 2007.

      Edward J. Cloos, III, Covington, Counsel for Plaintiff-Appellant Julius W. Fon-tenet.
    John S. Evans, M. Blake Monrose, Lafayette, Counsel for Defendant-Appellee Chitimache Tribe of Louisiana d/b/a Cypress Bayou Casino.
    J. Jerome Burden, Baton Rouge, Counsel for Defendant-Appellee Louisiana Department of Labor, Office of Employment Security.
    Before: CARTER, C. J., WHIPPLE, PARRO, KUHN, GUIDRY, PETTIGREW, DOWNING, GAIDRY, McDonald, McClendon, hughes, and WELCH, JJ.
   PARRO, J. (Byrnes, J., concurring).

LA discharged employee appeals the district court’s judgment affirming the decision of the Board of Review pertaining to the determination that she was not entitled to receive unemployment compensation benefits because her termination was based on misconduct. For the following reasons, we affirm.

Facts and Procedural History

The Chitimache Tribe of Louisiana, doing business as Cypress Bayou Casino (Cypress Bayou), employed Julius W. Fon-tenet (Fontenet) as a booth cashier at its casino located in Charenton, Louisiana. Cypress Bayou terminated Fontenet’s employment on April 23, 2004, following an incident in which she left a “strap” of $1 bills, valued at $100, unattended on the counter of her booth within reach of customers.

Following her discharge, Fontenet filed a claim for unemployment compensation benefits. She later received written notice from the Louisiana Department of Labor (Department) that she had been discharged from her employment as a result of her failure to abide by company rules/policies of which she was aware, that her discharge was for misconduct connected with her employment, and that she was disqualified for benefits, pursuant to LSA-R.S. 23:1601(2). Fontenet appealed the Department’s determination to an appeal referee (referee). See LSA-R.S. 23:1629(A). A hearing before the referee was conducted by telephone conference on June 15, 2004, after which a written decision was issued affirming the Department’s determination of disqualification for Fontenet’s failure to abide by company rules and policies of which she was aware.

Dissatisfied with the decision of the referee, Fontenet filed an appeal to the Board of Review (Board). See LSA-R.S. 23:1630. After considering the complete record, the Board adopted the findings of fact and conclusions of law of the referee and affirmed the referee’s decision in all respects. Fontenet then filed a petition for judicial review in the district court. See LSA-R.S. 23:1634. After considering the record, the ^district court affirmed the decision of the Board, upholding the agency’s determination of disqualification. Fontenet appealed, alleging that the district court erred as a matter of law in concluding that Fontenet’s conduct constituted disqualifying misconduct under applicable statutes and jurisprudence. He also urged that the district court erred in concluding that Cypress Bayou met its burden of showing the existence of misconduct at the administrative proceeding.

Misconduct

An individual shall be disqualified for benefits if it is found that the individual was discharged by the employer for misconduct connected with his employment. LSA-R.S. 23:1601(2)(a). Misconduct is defined as “mismanagement of a position of employment by action or inaction, neglect that places in jeopardy the lives or property of others, dishonesty, wrongdoing, violation of a law, or violation of a policy or rule adopted to insure orderly work or the safety of others.” LSA-R.S. 23:1601(2)(a).

Where the employer seeks to deny unemployment benefits because of employee misconduct, the burden of proof is on the employer. Buggage v. Assumption Parish Sheriff Dept., 05-1058 (La.App. 1st Cir.5/5/06), 934 So.2d 180, 181; Clipps v. State, Dept, of Labor, 02-1780 (La.App. 1st Cir.3/28/03), 844 So.2d 321, 324, writ denied, 03-0977 (La.5/16/03), 843 So.2d 1138. Proof must be by a preponderance of the evidence. Buggage, 934 So.2d at 181.

The referee, whose findings of fact and conclusions of law were adopted by the Board, found, in pertinent part:

The claimant was employed by Cypress Bayou Casino from September 23, 1998 to April 23, 2004 as a cashier.... She had received write-ups or reprimands previously for work performance and related issues. The number of write-ups for work performance issues such as excessive shortages in cash drawers under her responsibility had increased in the time period prior to the claimant’s discharge. The number of write-ups reached the point where the employer gave a final notice to the claimant in regards to her employment on March 03, 2004.
An incident occurred on April 16, 2004 that was discovered by the employer when they reviewed the videotapes under normal security procedures the following week. The claimant was seen to have left straps (bundles) of cash in an area in her cage that were accessible to the public while she was answering a phone that was ringing in an adjacent cage area. The claimant was supposed to have secured the money before taking any action that diverted her attention from the cash under her responsibility. Because of the prior multiple write-ups on the claimant’s record the final incident was viewed as sufficient justification to warrant discharge from employment.

| ¿Based on these findings, the referee concluded that the evidence showed “misconduct connected to the employment sufficient to warrant denial of benefits” and affirmed the determination of disqualification.

Appellate review does not entail the weighing of evidence, drawing of inferences, re-evaluation of evidence, or substituting the views of this court for those of the referee or Board as to the correctness of facts. St. Tammany Parish School Bd. v. State, Dept. of Labor, Office of Employment Security, 01-0757 (La.App. 1st Cir.5/10/02), 818 So.2d 914, 917. The scope of appellate review in this matter is limited to determining whether the facts are supported by sufficient and competent evidence and whether the facts, as a matter of law, justify the action taken. See LSA-R.S. 23:1634(B); see also Johnson v. Whitfield, 521 So.2d 641, 644 (La.App. 1st Cir.1988).

In this appeal, Fontenet does not dispute the factual findings relating to her discharge, rather she disputes the determination that her conduct constituted misconduct sufficient to disqualify her from receiving benefits. She raises two primary arguments in support of this assertion. First, she contends that the referee erred in evaluating her conduct solely under the statutory definition of “misconduct,” and secondly, in not considering whether her conduct constituted “misconduct” under the more restrictive definition of the term that evolved in the jurisprudence.

In the past, courts have required a showing that misconduct emanated from a willful or wanton disregard of the employer’s interest, from an intentional breach of the employer’s rules, from a direct disregard of the standard of behavior which the employer has a right to expect from its employees, or from negligence in such a degree or recurrence as to manifest culpability, wrongful interest, or evil design, or showing of an intentional and substantial disregard of the employee’s duties and obligations to the employer to constitute disqualifying misconduct under LSA-R.S. 23:1601(2). See Charbonnet v. Gerace, 457 So.2d 676, 678 (La.1984); see also Banks v. Administrator of Dept. of Employment Security, State of Louisiana, 393 So.2d 696, 699 (La.1981).

Some courts, including this one, have continued to apply this jurisprudential standard of misconduct in termination cases despite the amendment to LSA-R.S. 23:1601(2)(a) by 1990 La. Acts, No. 750, § 1, which provided a statutory definition for the |5term “misconduct.” Notably, in defining this term, the legislature did not include the more restrictive definition of the term that had been applied in prior jurisprudence. In the absence of the incorporation of the jurisprudential standard of misconduct in its statutory definition, we must determine whether the continued consideration of the jurisprudential standard is proper. In making this determination, we find it helpful to review the evolution of the jurisprudential standard.

According to Banks, which relied on King v. Brown, 115 So.2d 405 (La.App. 2nd Cir.1959), and Turner v. Brown, 134 So.2d 384 (La.App. 3rd Cir.1961), the word “misconduct” in LSA-R.S. 23:1601 was used to connote intentional wrongdoing. Banks, 393 So.2d at 699; see Charbonnet, 457 So.2d at 678-79. At the time pertinent to Banks, LSA-R.S. 23:1601 provided, in pertinent part:

An individual shall be disqualified for benefits:
(2) If the administrator finds that he has been discharged for misconduct connected with his employment ....

The meaning of the term “misconduct” relied on by Banks, is rooted in Sewell v. Sharp, 102 So.2d 259 (La.App. 2nd Cir. 1958). According to the court in Sewell:

“Misconduct” is a word of general usage and is not defined in the statute itself. Resort, must, therefore, be made to the generally accepted definitions, such as wrongful, improper or unlawful conduct, motivated by premeditated, obstinate, or intentional purpose. Misconduct, within the meaning of the Unemployment Compensation Act, excluding from its benefits an employee discharged for misconduct, must be an act of wanton or willful disregard of the employer’s interests, a deliberate violation of the employer’s rules, and a disregard of standards of behavior which the employer has a right to expect of his employees....
⅜ * *
We do not think that the term “misconduct” as used in the Unemployment Compensation Statute, excepting employees discharged for misconduct from the benefits of the statute, should be so literally construed as to effect a forfeiture of such benefits by an employee except in clear instances. The term should be construed in a manner least favorable to working a forfeiture so as to minimize the penal character of the provision by excluding cases not clearly intended to be within the exception. Such appears to be the general rule....

Sewell, 102 So.2d at 261-62; see Burge v. Administrator, Division of Employment Security of the Dept. of Labor, 83 So.2d 532, 535 (La.App. 2nd Cir.1955). In the absence of a statutory definition of “misconduct,” the courts properly resorted to general usage in arriving at a definition of the term. See LSA-C.C. art. 11. Thus, the question to be | (¡answered is whether the 1990 enactment of a statutory definition of the term “misconduct” has done away with the need to revert to the general usage of the term to arrive at its meaning.

Those courts that have expressly considered the 1990 amendment to LSA-R.S. 23:1601 have for the most part held that “misconduct” still requires intentional wrongdoing or negligence to such an extent as to manifest culpability or a showing of intentional and substantial disregard for the employer’s interest, without addressing why in 1990 the legislature decided to adopt a statutory definition of the term. See Harsco Corp. v. Victoria, 01-1486 (La.App. 3rd Cir.3/20/02), 812 So.2d 871, 874; Taco Bell Corp. v. Perkins, 95-225 (La.App. 5th Cir.9/26/95), 662 So.2d 34, 36-37; Emke v. Mouton, 617 So.2d 31, 33 (La.App. 4th Cir.1993); Hardeman v. Blache, 606 So.2d 671, 674 (La.App. 2nd Cir.1992). In directly addressing the issue, the court in Delta American Healthcare, Inc. v. Burgess, 41,108 (La.App. 2nd Cir.5/17/06), 930 So.2d 1108, 1112, after considering the purpose of unemployment compensation, concluded that the legislature’s addition to LSA-R.S. 23:1601 was intended to be illustrative and was not intended to substantively change the law by deleting the requirement of proving deliberate misconduct. Delta American Healthcare, Inc., 930 So.2d at 1112.

Although the first circuit has not expressly tackled the issue of the legislative intent behind the 1990 amendment, subsequent to the amendment, it applied the pre-1990 jurisprudential standard in St. Tammany Parish School Bd., 818 So.2d at 918, and Clipps, 844 So.2d at 324. See Brandon v. Lockheed Martin Corp., 03-1917 (La.App. 4th Cir.4/14/04), 872 So.2d 1232, 1239 n. 4. However, when faced directly with the issue of whether a referee had legally erred in failing to require a showing of intent to do wrong, this court in Buggage found that the referee was legally correct in applying the definition of misconduct found in LSA-R.S. 23:1601(2) in determining whether the former employee’s actions were sufficient to result in a disqualification for unemployment benefits. Buggage, 934 So.2d at 182. The former employee’s argument regarding the continued applicability of the jurisprudential standard was found to lack merit. See Id. In an effort to resolve the conflict in the first circuit as to the continued 17applicability of the jurisprudential standard of “misconduct,” this matter was presented for en banc consideration.

In 1990, the legislature amended LSA-R.S. 23:1601(2)(a) to include a definition for the term “misconduct,” as previously set forth. This definition outlines the types of behavior that will result in a disqualification for unemployment compensation benefits. Buggage, 934 So.2d at 182. This list does not include behavior characterized as an intentional breach of the employer’s policies or rules, or negligence to such an extent as to manifest culpability, or an intentional and wanton disregard of the employer’s interest.

By its passage of Act 750 in 1990, the legislature has spoken. Legislation is a solemn expression of legislative will. LSA-C.C. art. 2. 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. LSA-C.C. art. 9.

The law is clear in this case. It succinctly sets forth what types of behavior constitute misconduct. By Act 750, LSA-R.S. 23:1601(2)(a) was amended to define for the first time the term “misconduct,” and that definition includes no reference to intentionality, willfulness, or wantonness. As the legislature is well acquainted with the term “intentional,” as well as such other related terms as “willful” and “wanton,” it is difficult to believe it was through mere oversight that the legislature failed to use any of these or equivalent terms in its statutory definition of “misconduct.” Harris v. Houston, 97-2847 (La.App. 4th Cir.11/4/98), 722 So.2d 1042, 1046 (Byrnes, J., concurring). Thus, we conclude that the legislative enactment of a statutory definition of “misconduct” in 1990 had the effect of supplanting the jurisprudentially-created standard of Charbonnet, Banks, and other similar cases. For these reasons, we find no merit to Fontenet’s claim that the referee and the Board erred in evaluating her conduct solely under the statutory definition of misconduct and in failing to consider it under the more restrictive standard initially established by pre-amendment jurisprudence. To the extent that this court’s |sdecisions in St. Tammany Parish School Bd., 818 So.2d 914, and Clipps, 844 So.2d 221, hold to the contrary, they are overruled.

Disqualiñcation for Unemployment Beneñts

In response to Fontenet’s claim for unemployment compensation benefits, the Department indicated that Cypress Bayou had discharged her for violation of company/department procedure relating to drawer security. According to Fontenet’s supervisor, all employees are responsible for the control of their bank. Employees are expected to verify all strapped and clipped monies and to double check all cash in and cash out transactions to reduce variations. Cashiers are trained on drawer security. Drawer security policies and procedures required that currency not in use remain in the drawers at all times. These policies and procedures provided that the booth cashiers were not to lay cash in the sight or reach of customers when the cash in their drawer was being verified. On October 29, 1998, Fontenet acknowledged in writing to having received a copy of Cypress Bayou’s “Cage Standards and Procedures Manual,” which sets forth the polices and procedures in question.

According to Fontenet’s supervisor, the booth counters have two tiers. The bottom counter is specifically built to accommodate the cashier’s money so that the currency is out of the sight and reach of the customers. The upper (customer) counter is used for transactions with customers. The supervisor further stated that cashiers should not leave money unattended on the customer counter for any reason and that placing the currency on the customer counter, unattended, puts the casino funds at risk.

While Fontenet was counting the money on April 16, 2004, she left the strap of money ($100) on the upper counter within reach of customers for approximately 30 to 45 seconds. She had been written up for variations that occurred in her cash balances on February 14, 2003, and September 12, 2003. She was suspended for variations that occurred on December 10, 2003, and January 13, 2004. In February 2004, Fontenet incurred 10 “cage variations” or shortages in her cash balances totaling over $200. The increase in her balancing errors over the last six months of her employment prompted a final counseling session in March 2004 and resulted in her being placed on probation.

| ¡After reviewing the record in its entirety, we conclude Cypress Bayou provided sufficient evidence to support the Board’s factual findings that Fontenet’s performance established a pattern of violations of Cypress Bayou’s rules/policies in regard to cash handling and related work issues. Thus, under LSA-R.S. 23:1634(B), the Board’s factual findings are conclusive and our jurisdiction is limited to questions of law. Accordingly, we must determine whether the findings of fact, under Louisiana law, justify the Board’s decision. Based on our review of the law, we determine it is clear that Fontenet’s actions constituted “misconduct” as defined by LSA-R.S. 23:1601(2)(a), and we conclude the Board’s decision was legally correct.

Conclusion

For the foregoing reasons, we affirm the judgment of the district court. Costs of this appeal may not be assessed against Fontenet under the facts of this case. See LSA-R.S. 23:1692.

AFFIRMED.

GUIDRY, J., concurs in the result.

CARTER, C.J., concurs.

      . The Board of Review is within the Office of Regulatory Services in the Louisiana Department of Labor. See LSA-R.S. 23:1651 and 1652.

      . The referee modified the notice of claim determination to show April 23, 2004, as the effective dale of Fontenet’s disqualification.

      . See St. Tammany Parish School Bd., 818 So.2d at 918-19.

      . Harris v. Houston, 97-2847 (La.App. 4th Cir.l 1/4/98), 722 So.2d 1042, 1046-47

      . Thus, the need to revert to the general usage of the term to arrive at its meaning is no longer justifiable.

      . Finding that the continued application of the "willful or wanton” test favors the beneficial purpose underscoring the adoption of the unemployment compensation act, the third circuit refused to interpret the legislature’s action in 1990 as an effort to abandon the jurisprudential standard. The court in Harsco Corp. declined to change the third circuit's course in the absence of a clear legislative expression signaling the legislature's intent to abandon the "willful or wanton” test. Harsco Corp., 812 So.2d at 874; see Delta American Healthcare, Inc., 930 So.2d at 1112. We disagree with this approach.

      . Cashiers were not to leave money unattended on the upper counter for any reason.

      . We note that these violations constituted neglect that placed in jeopardy the property of Cypress Bayou.


author: CARTER, C.J.

text:
    GULF EXPLORER, LLC v. CLAYTON WILLIAMS ENERGY, INC.
    No. 2006 CA 1949.
    Court of Appeal of Louisiana, First Circuit.
    June 8, 2007.
    John M. Robin, Covington, Counsel for Plaintiff/Appellant, Gulf Explorer, LLC.
    Samuel E. Masur, Christopher B. Bailey, Lafayette, David M. Ellison, Jr., Baton Rouge, Counsel for Defendant/Appellee, Clayton Williams Energy, Inc.
    Before: CARTER, C.J., WHIPPLE and McDonald, jj.
   CARTER, C.J.

| sFACTUAL AND PROCEDURAL HISTORY

Defendant, Clayton Williams Energy, Inc. (Clayton Williams), was the operator of an oil and gas producing unit in Plaque-mines Parish, Louisiana, known as the 8300 RA SUA, Raphael Pass Field. The unit was formed by order of the state Commissioner of Conservation effective June 18, 2002. Plaintiff, Gulf Explorer, LLC (Gulf), owned certain mineral leases within the geographical confínes of the unit.

In September 2002, Clayton Williams sent notice to Gulf of its intention to drill SL 16901 No. 1 as the unit well for 8300 RA SUA Unit and offered Gulf the opportunity to participate in the risk and expense of the well. Gulf failed to respond to the notice; thus, pursuant to LSA-R.S. 30:10, it was deemed to have chosen not to participate.

Clayton Williams completed the SL 16901 No. 1 Well in January 2003 at a cost of $4,922,808.60. Clayton Williams paid the entire cost; Gulf did not bear any of the risk or expense incurred in drilling the well. In September 2003, Gulf released all of its leasehold interests in the 8300 RA SUA Unit.

In August 2004, Clayton Williams commenced operations to plug and abandon the SL 16901 No. 1 Well because it no longer produced oil and gas in sufficient quantities. The revenues derived from the SL 16901 No. 1 Well totaled $3,618,211.06. Accordingly, the well was approximately $1,304,597.00 short of reaching payout.

In October 2003, Gulf filed suit seeking a declaratory judgment stating that Gulfs royalty and overriding royalty owners were entitled to their share of production from the 8300 RA SUA Unit attributable to the duration of its leases. Gulf alleged that Clayton Williams should either | ¡¡forward the pertinent production proceeds directly to the royalty and overriding royalty owners or pay them to Gulf so that Gulf could disburse the funds accordingly. Clayton Williams filed a recon-ventional demand seeking a declaration that, pursuant to LSA-R.S. 30:10, it was entitled to “recover out of production from the 8300 RA SUA Unit well allocable to the tract belonging to Gulf, the nonparticipating owner, the tract’s allocated share of the actual reasonable expenditures incurred in drilling, testing, completing, equipping, and operating the unit well, including a charge for supervision, together with a risk charge.”

After stipulating to the facts and resolving all ancillary issues, the parties submitted to the trial court the sole legal question of whether Clayton Williams bore an obligation to pay Gulfs former royalty and overriding royalty owners any amounts from the production derived from the 8300 RA SUA Unit. Concluding that it did not, the trial court rendered judgment in favor of Clayton Williams. From this judgment, Gulf appeals.

DISCUSSION

Gulf contends that LSA-R.S. 30:10 does not authorize Clayton Williams to recoup well costs and any risk charge by retaining funds from that portion of the production attributable to Gulfs royalty and overriding royalty owners. Conversely, Clayton Williams argues that LSA-R.S. 30:10 permits an operator like itself, which risks its capital in drilling a unit well, to recover from the production attributable to tracts leased by owners that have chosen not to participate in the risk and expense of drilling (herein, Gulf) the share of costs for the non-participating owner’s tracts plus a risk charge. It maintains that this necessarily includes the production attributable to Gulfs royalty and overriding royalty owners. While Clayton Williams concedes Gulfs royalty and overriding royalty owners are due their royalty |4on production from the SL 16901 No. 1 Well, it contends that Gulf, and not Clayton Williams, owes these royalties because Clayton Williams has no contractual relationship with or obligation to Gulfs royalty and overriding royalty owners.

The interpretation of a statute, such as LSA-R.S. 30:10, begins with the language of the statute itself. Denham, Springs Economic Development Dist. v. All Taxpayers, Property Owners, 04-1674 (La.2/4/05), 894 So.2d 325, 330. The words of a law must be given their generally prevailing meaning. LSA-C.C. art. 11; see LSA-R.S. 1:3. When a law is clear and unambiguous, the law shall be applied as written and no further interpretation made. LSA-C.C. art. 9.

In pertinent part, LSA-R.S. 30:10 provides as follows:

A. When two or more separately owned tracts of land are embraced within a drilling unit which has been established by the commissioner as provided in R.S. 30:9(B), the owners may validly agree to pool their interests and to develop their lands as a drilling unit.
(1) Where the owners have not agreed to pool their interests, the commissioner shall require them to do so and to develop their lands as a drilling unit, if he finds it to be necessary to prevent waste or to avoid drilling unnecessary wells.
(2) In the event pooling is required, the cost of development and operation of the pooled unit chargeable to the owners therein shall be determined and recovered as provided herein.
(a)(i) Any owner drilling or intending to drill a unit well, including a substitute unit well, on any drilling unit heretofore or hereafter created by the commissioner, may, by certified mail, return receipt requested, notify all other owners in the unit of the drilling or the intent to drill and give each owner an opportunity to elect to participate in the risk and expense of such well....
(ii) Such election to participate must be exercised by mailing written notice thereof by certified mail, return receipt requested, |fito the owner drilling or intending to drill the unit well within thirty days after receipt of the initial notice. Failure to give timely written notice of the. election to participate shall be deemed to be an election not to participate.
(b)(i) Should a notified owner elect not to participate in the risk and expense of the unit well[,] ... the owner drilling same shall, in addition to any other available legal remedies to enforce collection of such expenses, be entitled to own and recover out of production from such unit well allocable to the tract belonging to the nonparticipating owner such tract’s allocated share of the actual reasonable expenditures incurred in drilling, testing, completing, equipping, and operating the unit well, including a charge for supervision, together with a risk charge, which risk charge shall be one hundred percent of such tract’s allocated share of the cost of drilling, testing, and completing the unit well.
(e) The provisions of Paragraph 2(b) above with respect to the risk charge shall not apply to any unleased interest not subject to an oil, gas, and mineral lease. Notwithstanding the provisions of Paragraph 2(b) the royalty owner and overriding royalty owner shall receive that portion of production due to them under the terms of the contract creating the royalty.
(g) Nothing contained herein shall have the effect of enlarging, displacing, varying, altering, or in any way whatsoever modifying or changing the rights and obligations of the parties thereto under any contract between or among owners having a tract or tracts in the unit.

Section A(2)(b)(i) of the statute clearly provides that an operator is “entitled to ... recover out of production from ... the tract belonging to the nonparticipating owner such tract’s' allocated share of ... expenditures.” (Emphasis added.) “Tract” is defined as a “continuous expanse of land.” Webster’s New World Dictionary 1416 (3d ed. 1988). Accordingly, Clayton Williams is entitled to recover its costs out of the production attributable to Gulfs tract or “continuous expanse of land” and not merely the amounts attributable to that tract minus the royalties and overriding royalties Gulf is 1 ^obligated to pay pursuant to its contracts with third parties. See Willis v. International Oil and Gas Corp., 541 So.2d 332, 336 (La. App. 2 Cir.1989) (holding that the unit operator was entitled to retain 100 percent of the proceeds from the production of the unit well until such time as the expenses of drilling, completing and operating the well were recovered).

Further, under LSA-R.S. 30:10A(2)(e), a lessor must look to his lessee for payment of a royalty under the terms of the contract creating the royalty. Under the lease agreements, Gulf, the lessee, is obligated to pay its lessors their royalties and overriding royalties. Clayton Williams has no contractual relationship with Gulfs lessors; under the facts presented herein, Clayton Williams has no obligation to pay Gulfs royalty and overriding royalty owners before it legally recoups its expenses from production pursuant to LSA-R.S. 30:10 A(2)(b)(i).

Accordingly, we find that the trial court correctly interpreted the law in concluding that Clayton Williams was entitled to recover Gulfs share of the-reasonable expenditures incurred in drilling the SL 16901 No. 1 Well out of the production attributable to Gulfs tracts. Thus, we hold that the trial court properly ruled that Clayton Williams bore neither a contractual nor a legal obligation to pay Gulfs former royalty and overriding royalty owners any amounts due from Gulf under the lease agreements.

CONCLUSION

For' all of the foregoing reasons, the judgment of the trial court is affirmed. All costs of this appeal are assessed to Gulf Explorer, LLC.

AFFIRMED.

      . We note that since the well was approximately $1,304,597.00 short of reaching payout, Clayton Williams is seeking to recoup only its fair share of actual well costs. Whether Clayton Williams would be entitled to a risk charge under different factual circumstances is not at issue in this casé,


text:
    Jarod MARQUEZ v. JACK USSERY CONSTRUCTION.
    No. 2006 CA 1852.
    Court of Appeal of Louisiana, First Circuit.
    June 8, 2007.

      D. Steven Wanko, Jr., Covington, for Plaintiff — Appellee Jarod Marquez.
    John J. Rabalais, Janice B. Unland, Robert T. Lorio, David B. Parnell, Coving-ton, for Defendant — Appellant Jack Us-sery Construction.
    Before: KUHN, GAIDRY, and WELCH, JJ.
   WELCH, J.

12Pefendants, Jack Ussery Construction, L.L.C. and its compensation carrier (hereafter “Jack Ussery”), appeal a partial judgment rendered by the Office of Workers’ Compensation (OWC) determining the employee’s average weekly wage and compensation rate without adjudicating the nature and extent of the employee’s disability, the amount of indemnity benefits owed by the employer, the employee’s entitlement to medical benefits, or whether the employer was liable for penalties and attorney fees for untimely paying benefits. We conclude that the judgment is not a partial final judgment for which the law authorizes an immediate appeal, and dismiss the appeal.

FACTUAL AND PROCEDURAL BACKGROUND

On April 7, 2005, Jarod Marquez filed this disputed claim for compensation in the OWC against his employer, Jack Ussery, averring that he sustained injuries as a result of a work-related accident occurring on March 1, 2005. In the petition, Mr. Marquez alleged that his employer incorrectly determined his compensation rate, insisting that he should have received indemnity payments of $400.00 per week based on an average weekly wage of $600.00. Mr. Marquez further charged that his employer failed to authorize prescription medications and sought to recover penalties, attorney fees, costs, interest and late payments.

The workers’ compensation judge (WCJ) set a pretrial mediation for January 31, 2006, with the trial scheduled for March 22, 2006. On January 9, 2006, Mr. Marquez filed a supplemental and amended disputed claim for compensation, asserting that Jack Ussery was subject to penalties and attorney fees for paying benefits untimely and for untimely payment of or denial of medical treatment, including a surgery requested by his doctor.

Jack Ussery sought to obtain a continuance of the trial on the grounds that Mr. Marquez’s recently amended Form 1008 form raised numerous issues that had 13not been investigated and for which discovery was still outstanding. The WCJ denied the motion to continue, but limited the March 22, 2006 trial to the sole issue of Mr. Marquez’s average weekly wage and compensation rate, acknowledging that the newly added issues could be tried at a later date.

Thereafter, a trial confined to the issue of Mr. Marquez’s average weekly wage was held. During the trial, the parties stipulated to the occurrence of an accident on March 1, 2005, and acknowledged that Jack Ussery paid Mr. Marquez indemnity benefits and paid for medical treatment following the accident. However, the employer refused to stipulate regarding liability for continued medical care.

Following the conclusion of the trial, the WCJ entered a judgment setting the average weekly wage at $600.00 effective as of the date of the accident and the weekly compensation rate at $400.00 as of the date of the accident. The WCJ also denied any claim for penalties and attorney fees as it related to the issue of the compensation rate. No determination was made as to the amount owed by Jack Ussery to Mr. Marquez. The WCJ designated the judgment as a final one for appeal purposes in accordance with La. C.C.P. art. 1915(B). This appeal of the partial judgment, taken by Jack Ussery, followed. Mr. Marquez answered the appeal, challenging an evi-dentiary ruling by the WCJ and its failure to award penalties and attorney fees. Mr. Marquez also sought an increase in attorney fees for the costs of the appeal and damages for a frivolous appeal.

APPELLATE JURISDICTION

Appellate courts have the duty to examine subject matter jurisdiction sua sponte, even when the parties do not raise the issue. Motorola, Inc. v. Associated Indem. Corp., 2002-0716, p. 4 (La.App. 1st Cir.4/30/03), 867 So.2d 715, 717. Louisiana Code of Civil Procedure article 1915 authorizes the appeal of a partial final judgment in certain situations and for the designation of partial judgments as |/‘final” by the trial court for the purpose of an immediate appeal. Paragraph B of La. C.C.P. art.1915 permits an appeal of a partial judgment as to one or more but less than all of the claims, demands, issues or theories where the judgment is designated as a final judgment by the trial court after an express determination that there is no just reason for the delay.

The WCJ certified the partial judgment as final; however, that designation does not make the judgment immediately appealable. Van ex rel. White v. Davis, 2000-0206, p. 2 (La.App. 1st Cir.2/16/01), 808 So.2d 478, 480; Doyle v. Mitsubishi Motor Sales of America, Inc., 99-0459, 99-0460, p. 9 (La.App. 1st Cir. 3/31/00), 764 So.2d 1041, 1047, writ denied, 2000-1265 (La.6/16/00), 765 So.2d 338. This court’s appellate jurisdiction extends to “final judgments.” La. C.C.P. art. 2083. Under Louisiana law, a final judgment is one which determines the merits of a controversy, in whole or in part. La. C.C.P. art. 1841. Although La. C.C.P. art. 1915 dispenses with finality in the sense of completion of the litigation, the judgment rendered must be sufficiently final in that it disposes of the claim or dispute in regard to which the judgment is rendered. Leray v. Nissan Motor Corp. in U.S.A, 2004-1282, p. 5 (La.App. 1st Cir.6/10/05), 916 So.2d 260, 263, writ denied, 2005-1837 (La.1/27/06), 922 So.2d 554. In contrast, an interlocutory judgment does not determine the merits, but only preliminary matters in the course of an action. La. C.C.P. art. 1841. This court determines finality de novo. Davis, 2000-0206 at p. 5, 808 So.2d at 483; Doyle, 99-0459 at p. 9, 764 So.2d at 1047; Mark Tatum and William Norris, III, Summary Judgment and Partial Judgment in Louisiana: The State We’re In, 59 La. L.Rev. 131,158.

In the instant case, the OWC merely determined Mr. Marquez’s hourly rate of pay — it did not determine the nature and extent of his disability, which are | ^crucial factors that must be decided in order to determine the amount of compensation to which Mr. Marquez is entitled. Nor has there been a determination of Mr. Marquez’s entitlement to medical payments for services that have not been approved by his employer. Additional outstanding issues include the employer’s liability for penalties and attorney fees for failing to timely pay benefits and for failing to approve a requested medical procedure. Plainly, the judgment appealed from did not determine the merits of Mr. Marquez’s compensation claim; rather, it only decided a preliminary matter in the course of the compensation litigation. The addition of “certification” language in a judgment cannot serve to transform an interlocutory judgment into an appealable partial final judgment. Bennett v. Arkansas Blue Cross Blue Shield, 2005-1714, p. 4 (La.App. 1st Cir.9/15/06), 943 So.2d 1124, 1127.

Moreover, our courts have repeatedly held that although La. C.C.P. art. 1915 may authorize an appeal of a partial final judgment in an ordinary civil proceeding, allowing an immediate appeal pursuant to that provision in the course of an ongoing compensation proceeding runs counter to the purposes behind the Workers’ Compensation Act. In Smith v. UNR Home Products, 614 So.2d 54 (La.1993), the Supreme Court held that La. C.C.P. art. 1915(A)(5), which permits an appeal from a judgment on the issue of liability when that issue had been tried separately from the damage issue by a court, did not apply in a workers’ compensation case. In so doing, the court concluded that piecemeal appeals ran counter to the procedures of the Workers’ Compensation Act, which were designed to speed up the adjudicative process, not to prolong and complicate it by partial judgments and multiple appeals. Smith, 614 So.2d at 55; see also Hughes v. Albertson’s Inc., 2000-2542, p. 5 (La.App. 1st Cir.12/28/01), 803 So.2d 1150, 1153 (wherein another panel of this court cited Smith in finding that a judgment of the OWC relating to penalties and attorney fees, which did not determine the issues |,;of entitlement to compensation and in what amount, was not immediately appeal-able under article 1915); Volion v. Baker Heritage, Inc., 97-92 (La.App. 5th Cir.5/28/97), 695 So.2d 1038 (relying on Smith in dismissing the appeal of a judgment establishing a worker’s entitlement to benefits, but which did not adjudicate the amount of those benefits).

In Rhodes v. Lewis, 2001-1989 (La.5/14/02), 817 So.2d 64, the Supreme Court held that La. C.C.P. art. 1915(A)(1), which permits a party to appeal a judgment dismissing a suit as to less than all of the parties, was not applicable in a workers’ compensation proceeding. The court observed that the purpose of empowering the OWC to resolve disputes and issue orders regarding workers’ compensation claims is to provide a speedy resolution of these claims and a swift recourse for injured workers. To allow an immediate appeal of a judgment dismissing some, but not all of the parties from the action, leaving the issue of the claimant’s entitlement to compensation to be decided, the court stated, would render meaningless the goals of the Workers’ Compensation Act. Rhodes, 2001-1989 at. p. 8, 817 So.2d at 69; see also Lemmons v. Georgia Pacific Corp., 42,142, p. 3 (La.App. 2nd Cir.4/18/07), 955 So.2d 273 (finding that a judgment of the OWC deciding that only part of a worker’s claims had prescribed was not suitable for an immediate appeal under the reasoning employed in Rhodes).

Likewise, we find that allowing an employer to appeal a partial ruling that merely sets the employee’s compensation rate only encourages piecemeal adjudication and appeals, causing delay and inefficiency, in direct contravention to the Workers’ Compensation Act’s goal of achieving a speedy resolution of injured workers’ claims. Therefore, we conclude that the WCJ erred in certifying the judgment as immediately appealable.

For the foregoing reasons, we hold that the judgment of the WCJ setting forth the employee’s average weekly wage and compensation rate is not a partial [7final judgment for which the law authorizes an immediate appeal. Accordingly, we dismiss the appeal and remand the case for further proceedings consistent with the views expressed herein.

APPEAL DISMISSED.

      . Where the partial judgment is a final one and the trial court fails to give explicit reasons why there is no just reason for the delay of an immediate appeal, this court reviews the propriety of the designation de novo, utilizing the factors set forth in R.J. Messinger, Inc. v. Rosenblum, 2004-1664 (La.3/2/05), 894 So.2d 1113.


author: GAIDRY, J. KUHN, J.,

text:
    Alice Rooney SCHINDLER v. William H. BIGGS, III.
    No. 2006 CA 0649.
    Court of Appeal of Louisiana, First Circuit.
    June 8, 2007.
    Rehearing Denied Aug. 17, 2007.

      Jeffrey A. Jones, Mandeville, Counsel for Plaintiff/Appellee Alice Rooney Schindler.
    F. Sherman Boughton, Jr., Jason M. Bigelow, New Orleans, Counsel for Defendant/Appellant William H. Biggs, III.
    Mark D. Higdon, Thomas E. Richards, Covington, Counsel for Intervenor/Appel-lee Succession of Charles V. Schindler.
    Before: C.J. CARTER, KUHN, PETTIGREW, GAIDRY, and WELCH, JJ.
   GAIDRY, J.

|?In this case, defendant appeals a summary judgment rendered against him. We reverse in part and affirm in part.

FACTS AND PROCEDURAL HISTORY

Alice Rooney Schindler filed a petition for writ of attachment and garnishment on November 17, 2003, seeking the return of money fraudulently taken from her by defendant, William H. Biggs, III. The circumstances leading to the petition are as follows. Mrs. Schindler lived with her husband, Charles V. Schindler; her former daughter-in-law, Anna K. Schindler; and Anna’s boyfriend, Biggs, in a house that Mrs. Schindler purchased. Mrs. Schindler was elderly and had several strokes over the years, and Anna and Biggs helped to care for her. In September 2003, Mrs. Schindler requested that Charles Schwab & Co., Inc. (“Charles Schwab”) sell one half of a municipal bond and send her the proceeds. On September 9, 2003, Mrs. Schindler and Biggs opened a joint checking account at Whitney National Bank and deposited the $254,153.60 check from Charles Schwab. Mrs. Schindler, who had no recollection of ever receiving the check or going to the bank with Biggs, contacted Charles Schwab several times about the check. Upon finally learning from Charles Schwab that the check had been cashed, Mrs. Schindler contacted Biggs, who told her that the check had come in the mail and that he had taken her to Whitney Bank where they had opened a joint checking account and deposited the check. Mrs. Schindler then contacted Whitney Bank to determine if this was true and learned that all of the money had already been withdrawn from the account by Biggs.

|sWhen Biggs refused to return the money, Mrs. Schindler filed suit alleging conversion. A writ of attachment issued on November 17, 2003, seizing real estate owned by Biggs. Mrs. Schindler later amended her petition to name additional parcels of real estate owned by Biggs, and an amended writ of attachment issued on February 18, 2004. Biggs filed an answer stating that there was no conversion, but rather that Mrs. Schindler had given him the money as either a remunerative or gratuitous donation. Mr. Schindler later intervened in the suit, claiming that the money allegedly given to Biggs was community property and that he did not concur in any donation, as is required by La. C.C. art. 2349. Mrs. Schindler also filed a Second Amended Petition, asserting that Biggs had converted an additional $1,000.00 from her, and asserting a claim for the severe emotional distress and mental anguish she suffered as a result of Biggs’ conversion of the funds she had invested for her retirement. In a Third Amended Petition, Mrs. Schindler asked for attorney’s fees, court costs, and other expenses incurred in pursuit of her claim.

Mrs. Schindler filed a motion for summary judgment on her Original and First Amended Petitions. Attached to the motion was her affidavit outlining the facts surrounding the conversion of funds and the damages she suffered as a result of the conversion. The executor of Mr. Schindler’s estate intervened in Mrs. Schindler’s motion for summary judgment and attached his own affidavit, stating that shortly before Mr. Schindler died, he advised him that his wife had withdrawn funds from a Charles Schwab account without his concurrence and had deposited the funds into a joint bank Raccount, that Biggs had withdrawn all of the funds, and that he desired to have legal action taken to obtain a return of the funds.

In opposition to the motion, Biggs filed the affidavits of Anna K. Schindler, Anna Dio Schindler, and Margaret Stretzinger. Anna K. Schindler stated that she and Biggs never received a salary for the “numerous tasks, chores, and errands” they performed for the Schindlers from 1997 until the fall of 2003, but that in 2003, Mrs. Schindler stated that she was planning to give a large sum of money to Biggs. Anna K. Schindler also stated that she witnessed Mr. Schindler confronting his wife about this donation shortly after it was made. Finally, Anna stated that in the final months of Mr. Schindler’s life, he had told her that he knew that his wife had intended to make the donation to Biggs for all that he had done for them. Anna Dio Schindler stated that in 2003, she heard Mrs. Schindler say that she was planning to give a large sum of money to Biggs, and that towards the end of Mr. Schindler’s life, when he was hospitalized, Mr. Schindler acknowledged to her that Mrs. Schindler had given the money to Biggs. Margaret Stretzinger stated that she had been present on numerous occasions when Mr. and Mrs. Schindler discussed Mrs. Schindler giving money to Biggs, and that she heard Mr. Schindler say that he was aware of the donation and that his wife had intended to make the donation in payment for all that Biggs had done for them.

After a hearing, the trial court granted Mrs. Schindler’s motion for summary judgment and Mr. Schindler’s Intervention as to the Original and First Amended Petitions, and rendered judgment in favor of Mrs. Schindler and the succession of Mr. Schindler in the amount of $254,153.60, plus interest. The court also awarded Mrs. Schindler attorney’s fees and costs in | ¡¡the amount of $20,196.00. The court maintained the writ of attachment and ordered Biggs’ property sold in order to satisfy the judgment. Biggs appealed, asserting that the trial court erred in granting summary judgment against him and in awarding attorney’s fees.

DISCUSSION

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

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

IfiWhen the court is presented with a choice of reasonable inferences to be drawn from subsidiary facts contained in affidavits and attached exhibits, these reasonable inferences must be viewed in the light most favorable to the party opposed to the motion. The credibility of witnesses or doubt as to whether a party alleging a fact will be able to sustain his burden of proof on the merits are improper considerations in determining the existence of material fact. Likewise, a motion for summary judgment is not suitable for the disposition of cases requiring a judicial determination of subjective facts such as motive, intent, good faith or knowledge. Smith v. Our Lady of the Lake Hosp., Inc., 612 So.2d 816, 820 (La.App. 1 Cir. 1992), writ granted, 93-2512 (La.2/25/94), 632 So.2d 768, affd in part, rev’d in part, 93-2512 (La.7/5/94), 639 So.2d 730.

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

An inter vivos donation is an act by which a donor irrevocably divests himself of the thing given, in favor of donee who accepts it. La. C.C. art. 1468. Such a donation may be either gratuitous, onerous, or remunerative. Gratuitous donations are made without condition and merely from liberality, while onerous donations are burdened with charges imposed upon the donee, and remunerative donations are made in recompense for services rendered. La. C.C. art. 1523.

|7The donee has the burden of proving the donation, and this proof must be strong- and convincing. Arnold v. Fenno, 94-1658 (La.App. 4 Cir. 3/16/95), 652 So.2d 1078, 1080. In order for a donation to be valid, there must be a divestment, accompanied by donative intent. Donative intent is an issue of fact. In this case, conflicting affidavits were offered as to Mr. and Mrs. Schindler’s intent, creating a genuine issue of material fact. While the trial court may ultimately conclude that Mrs. Schindler’s testimony that she never intended to give any money to Biggs and that she was taken advantage of after having a stroke, is more credible than that of the other affiants, this was not an appropriate situation for summary judgment. Furthermore, regarding Mr. Schindler’s argument that the alleged donation was null because he did not concur, there is an exception to the concurrence requirement when the other spouse makes a gift of a value commensurate with the economic position of the spouses at the time of the donation. Since there was nothing in the record on the summary judgment as to the Schindlers’ economic position at the time of the donation, this issue was also not appropriate for summary judgment. For these reasons, the trial court erred in granting summary judgment on these issues.

Additionally, since summary judgment was not warranted in this matter, the award of attorney’s fees was also inappropriate.

DECREE

The August 8, 2005 and August 18, 2005 trial court judgments are reversed insofar as they granted summary judgment on Mrs. Schindler’s Original and First Amending Petitions and on the intervention and awarded attorney’s fees. We do not reverse that portion of the August 18, 2005 trial court judgment recognizing and maintaining the writs of attachment. Costs of this appeal are to be shared equally by the parties.

REVERSED IN PART, AFFIRMED IN PART.

CARTER, C.J., and PETTIGREW, J, concur.

KUHN, J., dissents and assigns reasons.

KUHN, J.,

dissenting.

hThe majority errs in reversing the trial court’s August 18, 2005 judgment. In response to plaintiffs conversion suit, defendant, Mr. Biggs, asserted the defense of a remunerative or onerous donation. As such, to support his defense, Mr. Biggs had the burden of establishing the donation took place by “strong and convincing evidence.”

Conversion is the unlawful interference with the ownership or possession of a movable, including when possession is acquired in an unauthorized manner. Johnson v. Hardy, 98-2282, p. 6 (La.App. 1st Cir.11/5/99), 756 So.2d 328, 331. Plaintiffs deposition testimony establishes she did not authorize Mr. Biggs to open a join checking account with her or authorize him to assist her in selling the bond in question. Mr. Biggs claims the funds were compensation or a remunerative donation for personal services that he rendered to plaintiff.

With respect to who bears the burden of proof on plaintiffs motion for summary judgment, Louisiana Code of Civil Procedure article 966 C(2) provides, in pertinent part:

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. (Emphasis added.)

Considering the pleadings, depositions, and affidavits presented in the record, plaintiff pointed out that Mr. Biggs cannot meet his burden to establish his defense; i.e. he cannot set forth strong and convincing evidence establishing that plaintiff had the donative intent to make a remunerative donation of the funds at issue. Plaintiffs deposition testimony sets forth that she never intended to: 1) open a joint account; 2) to authorize Mr. Biggs to remove the money from the account; or 3) to donate any of the funds at issue to Mr. Biggs. The affidavits of Ms. Anna K. Schindler and Ms. Anna Dio Schindler reference tasks or errands that Anna K. and Mr. Biggs performed for the benefit of plaintiff and her husband, Mr. Schindler. Arguably, these affidavits support Biggs’ defense of remunerative donation. However, plaintiffs deposition establishes that Mr. Biggs was specifically paid for some of these tasks/errands and also that when these tasks were performed, Mr. Biggs was also receiving free lodging, food, and entertainment at plaintiffs expense. Thus, plaintiffs deposition establishes Mr. Biggs in fact received substantial remuneration for his services without even considering the funds at issue, i.e., the proceeds from the sale of the municipal bond. Her testimony in this respect is not contradicted.

Although the affidavits of Anna K. Schindler and Anna Dio Schindler indicate that plaintiff said she was planning to give a large sum of money to Mr. Biggs, this general testimony is not sufficient to establish donative intent by strong and convincing evidence; planning to do something and actually doing it are two different things.

Anna Dio Schindler’s affidavit also states that her grandfather, Mr. Schindler, acknowledged that her grandmother (plaintiff) had given Mr. UBiggs money. But the affidavit does not refer to a specific sum of money or expressly reference that he was referencing the money from the sale of the municipal bond. Plaintiff acknowledged that when Mr. Biggs was living in the same household with her, she allowed him to use her credit cards for “clothes and tools and anything else he wanted to go to Home Depot and buy.” Mr. Schindler could have been referencing these expenditures when he said that Mrs. Schindler had given money to Mr. Biggs. Additionally, Mr. Schindler’s understanding of plaintiffs motives alone cannot establish donative intent.

The same considerations apply to Margaret Stretzinger’s affidavit, wherein she stated that she was present with Mr. Schindler and Anna Schindler on numerous occasions when conversations took place about sums of money that were given to Mr. Biggs by plaintiff. The allegations of the affidavit are very general and neither refers to the specific sum of money in question nor even generally refers to the proceeds from the sale of the municipal bond. Further, the allegations refer to the intent of persons other than that of plaintiff.

Considering all of the evidence in the record in the light most favorable to Mr. Biggs, it does not establish plaintiffs dona-tive intent by strong and convincing evidence. Because Mr. Biggs has failed to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden at trial to establish his defense of a remunerative or onerous donation, there is no genuine issue of material fact. Plaintiff was entitled to judgment as a matter of law based on her deposition testimony establishing the conversion, and the trial court properly granted summary judgment in her favor.

      . Mr. Schindler did not live in the house for the entire period of time that Mrs. Schindler, Anna, and Biggs lived together, but moved in at some point after he was diagnosed with cancer.

      . Mr. Schindler died on March 15, 2004, and the executor of his estate, Oris R. Creighton, was substituted as intervenor in the proceedings.

      . La. C.C. art. 2349 provides that the concurrence of the spouses is required for donation of community property to a third person. However, a spouse acting alone may make a usual or customary gift of a value commensurate with the economic position of the spouses at the time of the donation.

      . A motion for summary judgment was also filed on the Second and Third Amending Petitions, which was denied.

      . Anna Dio Schindler is the daughter of Anna K. Schindler and the granddaughter of Alice Rooney Schindler.

      . Margaret Stretzinger assisted Anna K. Schindler in taking care of Mr. Schindler from December 2003 until his death.

      . Although the court made the award of attorney's fees at the hearing on the first motion for summary judgment, it was not mentioned in the “Partial Final Judgment on Original and First Amending Peitions.” In the August 8, 2005 judgment denying the second motion for summary judgment, the court noted that the judgment submitted on the first motion for summary judgment had not mentioned the award of attorney fees, so the court confirmed the award in that judgment.

      . Mr. Biggs has conceded on appeal he cannot establish a gratuitous defense.


author: GUIDRY, J.

text:
    Norma Jean Courtney FECHTNER v. William R. BICE.
    No. 2006 CA 2077.
    Court of Appeal of Louisiana, First Circuit.
    June 8, 2007.

      Walter Antin, Jr., Hammond, Counsel for Plaintiff-Appellant Norma Jean Courtney Fechtner.
    Leonard E. Yokum, Jr., Hammond, Counsel for Defendant/Appellee William R. Bice.
    Before: PARRO, GUIDRY, and McClendon, jj.
   GUIDRY, J.

Ip,A legatee to a testament that was later determined to be invalid appeals a judgment dismissing her claims against the notary public that notarized the invalid testament.

FACTS AND PROCEDURAL HISTORY

On February 3, 2004, William R. Bice, a commissioned notary public, was called to the home of Eddie L. Reid to notarize Mr. Reid’s last will and testament. On arriving at Mr. Reid’s home, Mr. Bice was presented with a handwritten document entitled “Last Will & Testament.” Mr. Bice witnessed the signing of the document by Mr. Reid and two witnesses. Mr. Bice then signed the document in his capacity as notary. The document provided that “[a]fter all debts are settled[,] the remaining money shall be split equally between my niece Vanessa Courtney Reimer, my niece Norma Jean Courtney Fechtner & my cousin Susan Reid Helton.”

On February 27, 2004, Mr. Reid died, and subsequently, a succession was opened to settle his estate. It was later discovered that the document Mr. Bice notarized on February 3, 2004, was not a valid testament, as it was not drafted in any of the proper forms for a valid testament under Louisiana law. A prior testament was then located and probated. Mr. Reid did not grant Ms. Fechtner any bequests under the prior testament.

On December 17, 2004, Ms. Fechtner filed a petition for damages against Mr. Bice, alleging that because of his negligence in failing to properly advise Mr. Reid as to the validity of the document that was executed on February 3, 2004, she did not receive the bequest her uncle had desired to give her. In answer to Ms. Fechtner’s petition, Mr. Bice denied any liability for the invalidity of the document.

Thereafter, Ms. Fechtner filed a motion for summary judgment, asserting that “there being no disputed issue of material fact and the law being in her favor,” |ashe was entitled to a judgment against Mr. Bice “for the loss of her legacy in the amount of $49,808.75.... ” The trial court later denied the motion for summary judgment, and a bench trial on the merits of Ms. Fechtner’s petition was held on June 1, 2006. After considering the law and evidence presented, the trial court rendered judgment in favor of Mr. Bice dismissing Ms. Fechtner’s petition, and Ms. Fechtner now appeals.

DISCUSSION

The sole issue to be addressed in this appeal is whether the trial court erred in finding that Mr. Bice did not have a duty to ascertain that the document he notarized was valid in form under the specific facts presented.

The undisputed facts of this matter are that Mr. Bice was called to the home of Mr. Reid to notarize Mr. Reid’s testament. Mr. Bice was not asked to draft the document. He also was not asked to review the document nor did he read it. Mr. Bice, who is not a licensed attorney, was commissioned as a notary in 1975 in Natchitoches, Louisiana. He received no formal training nor did he take any courses to be a notary public prior to receiving his commission. According to Mr. Bice, he was simply required to complete a form, about a legal page and a half long, full of questions. He later moved to Tangipahoa Parish and was certified as a notary public in that parish in the early 1980s. Mr. Bice worked for mortgage and finance companies until 1999, when he opened his own notary business in which he primarily notarizes motor vehicle transfers and affidavits.

On February 3, 2004, Myrtle Clark, Mr. Reid’s sister, asked Mr. Bice to come to Mr. Reid’s home to notarize Mr. Reid’s testament. Mr. Bice was acquainted with both Mrs. Clark and Mr. Reid. On arrival, Mr. Bice entered Mr. Reid’s home through the kitchen, where Mrs. Clark met him. Also present in Mr. Reid’s home on that day were Joyce McCord, Mr. Reid’s ex-wife, and JacLyn 140wenby, Mrs. Clark’s daughter. Mr. Reid was also present but was lying down in a room that adjoined the kitchen.

On being presented with the document to be notarized, Mr. Bice observed that it was handwritten. Based on this observation, Mr. Bice stated that a handwritten will did not need to be notarized; however, when Mrs. McCord insisted that he notarize the document anyway, he further advised that two witnesses were needed and that the witnesses could not be named in the document. Thereafter, the document was presented to Mr. Reid to sign, following which the two witnesses, Mrs. Clark and Mrs. Owenby, signed the document. Mr. Bice then signed and dated his signature, writing the word “Notary” and printing his name and notary number below his signature.

Notaries public have power within their several parishes to receive wills. La. R.S. 35:2(A)(l)(b). In Dale v. Corriere, 537 So.2d 346, 347 (La.App. 4th Cir.1988), writ denied, 538 So.2d 615 (La.1989), the court, in considering the nature of the authority thus granted a notary public, held:

There is no law in Louisiana which requires a notary to give inspection for legal flaws and guaranty validity of every document which he notarizes when he is hired only in his capacity of a notary and not as a drafter or guarantor of validity of such documents. ... Nor are the duties of a notary that of an attorney. Succession of Edward Harrison Michel, 225 So.2d 480 (La.App. 4th Cir.1969).

In this instance, Mr. Bice was neither asked for nor did he give an opinion as to the validity of the document he was asked to notarize. Moreover, as observed by the court in Dale, he was not required by law to inspect the document that he did not Isdraft to verify or guarantee its validity. See Dale, 537 So.2d at 347. Further, Mrs. Fechtner’s assertion that Mr. Bice could have made the document a valid testament by adding an attestation clause wrongly presumes that Mr. Bice had a duty to guarantee that the document was valid in form. Hence, Mr. Bice cannot be held liable for the fact that the document was improperly drafted.

We also find no merit in Mrs. Fechtner’s assertion that she is entitled to recover on her claim based on the tort of negligent misrepresentation. In order for a plaintiff to recover for negligent misrepresentation, there must be a legal duty on the part of the defendant to supply correct information, a breach of that duty, and damage to plaintiff caused by the breach. Hughes v. Goodreau, 01-2107, p. 19 (La. App. 1st Cir.12/31/02), 836 So.2d 649, 663, writ denied, 03-0232 (La.4/21/03), 841 So.2d 793. To state a cause of action for negligent misrepresentations, the representations must be classified as misrepresentations. Daye v. General Motors Corporation, 97-1653, p. 6 (La.9/9/98), 720 So.2d 654, 659. In Louisiana, a claim of negligent misrepresentation is evaluated using the duty/risk analysis. Barrie v. V.P. Exterminators, Inc., 625 So.2d 1007, 1015-1016 (La.1993) (“The case by case application of the duty-risk analysis, presently employed by our courts, adequately protects the misinformer and the misinformed because the initial inquiry is whether, as a matter of law, a duty is owed to this particular plaintiff to protect him from this particular harm.”)

As previously discussed, as a notary, Mr. Bice owed no duty to supply any information regarding the validity of the will. Mr. Bice was never asked to review the document he notarized to see if it was valid in form nor, according to Dale, was he required to do so. Additionally, other than observing that the document was handwritten, Mr. Bice did not read the document he was asked to notarize. Mr. Bice’s statements regarding whether a handwritten/olographic will needed to be | ^notarized cannot be construed as his assuming a duty to verify or guarantee its validity nor as his offering an opinion as to its validity.

CONCLUSION

Accordingly, we affirm the judgment of the trial court dismissing Mrs. Fechtner’s claims against Mr. Bice. Costs of this appeal are cast to the appellant, Norma Jean Courtney Fechtner.

AFFIRMED.

McClendon, j., concurs.

      . The testimony of Mrs. Clark and Mrs. Ow-enby regarding the statements made by Mr. Bice on being given the document was also presented at trial. Mrs. Clark was unable to appear in person at the trial, so her deposition testimony was presented in lieu of her live testimony. In her deposition, Mrs. Clark stated that Mr. Bice said the document was an olographic will and that he did not need to notarize it. Mrs. Owenby also testified that Mr. Bice stated that the document was an olographic will that “he didn’t need to sign.” Both women further testified that Mr. Bice notarized the document anyway at Mrs. McCord’s insistence.


text:
    STATE of Louisiana Board of Ethics v. Corbett OURSO, Jr.
    No. 2006 CA 1467.
    Court of Appeal of Louisiana, First Circuit.
    June 8, 2007.

      R. Gray Sexton, Kathleen M. Allen, Tracy M. Walker, Melissa McConnell, Baton Rouge, Counsel for Plaintiff/lst Appellant/2nd Appellee Louisiana Board of Ethics.
    John O. Braud, Hammond, Counsel for Defendant/2nd Appellant/lst Appellee Cor-bett Ourso, Jr.
    Before: PARRO, GUIDRY, and WELCH, JJ.
   GUIDRY, J.

|2By this appeal, the Louisiana Board of Ethics, acting in the capacity of the Supervisory Committee on Campaign Finance Disclosure (Board), challenges the amount of the penalty assessed to a political candidate based on a finding that the candidate violated La. R.S. 18:1505.2(H). The political candidate, in turn, has filed a peremptory exception raising the objection of prescription with this court and challenges the trial court’s determination that a violation of the applicable statute occurred. For the reasons that follow, we amend in part, and as amended, we affirm.

PROCEDURAL HISTORY

Corbett Ourso, Jr. was a candidate for District Court Judge, Twenty-First Judicial District, Division G, in the October 3, 1998 primary and November 3, 1998 general elections and filed campaign finance disclosure reports as required by the Campaign Finance Disclosure Act (CFDA), La. R.S. 18:1481-1532. Believing that the reports evidenced a receipt of loans in excess of the contribution limits established in La. R.S. 18:1505.2(H), the Board ordered an investigation and later issued a proposed consent opinion finding Ourso in violation of La. R.S. 18:1505.2(H). After reviewing the proposed consent opinion, Ourso suggested changes to the proposed consent opinion, requested appearances before the Board, and ultimately offered to sign a waiver relative to the defense of prescription in exchange for the opportunity to appear before the Board at its October 14, 1999 meeting. The Board forwarded the requested waiver to Ourso, which he signed on September 28, 1999, and Ourso appeared before the Board on October 14, 1999. Thereafter, the Board gave Ourso until October 29, 1999, to accept the consent opinion, which Ourso rejected on November 11, 1999. On November 19, 1999, the Board filed suit against Ourso in the Twenty-First Judicial District Court.

Trial was held on April 20, 2000, and on June 13, 2000, Ourso filed a “Peremptory Exception Raising the Objections of: Peremption and Prescription |swith Incorporated Memorandum.” Following a hearing on the exception, the trial court determined that the limitation period expressed in La. R.S. 18:1511.11(B) was peremptive, sustained the exception, and dismissed the Board’s action in a judg-merit signed on May 1, 2001. This court affirmed. State Board of Ethics v. Ourso, 01-1417 (La.App. 1st Cir.6/21/02), 888 So.2d 792. The Louisiana Supreme Court, pursuant to a writ of certiorari, reversed the judgments of the lower courts finding that the time period for filing actions under the CFDA, as set forth in La. R.S. 18:1511.11(B), is prescriptive, not peremptive. State Board of Ethics v. Ourso, 02-1978 (La.4/9/03), 842 So.2d 346. The case was remanded to the trial court for further proceedings.

On July 28, 2003, a hearing on remand was held wherein the trial court found that the Board’s enforcement action against Ourso was prescribed and again sustained Ourso’s exception, dismissing the Board’s action. The Board appealed, and this court reversed the trial court’s judgment based on the conclusion that the objection was not properly before the trial court for adjudication because the exception was not timely filed. The case was again remanded to the trial court to consider the merits of the Board’s enforcement action. State Board of Ethics v. Ourso, 04-0513 (La. App. 1st Cir.3/24/05), 898 So.2d 639 (unpublished opinion), writ denied, 05-1065 (La.6/17/05), 904 So.2d 684.

At a subsequent trial held on December 12, 2005, additional arguments were presented to the trial court. After reviewing the transcript of the April 20, 2000 trial, as well as the evidence that was introduced in conjunction therewith, the trial court rendered judgment decreeing that Ourso had “violated LSA-R.S. 18:1505.2(H), by his receipt of excessive loans in the 1998 primary and general elections.” The trial court then assessed civil penalties against Ourso pursuant to La. R.S. 18:1505.2(J) in the amount of $5,000, “together with legal interest at the maximum statutory rate, from the date of judicial demand until paid, and all costs |incurred.. .payable to the Treasurer of the State of Louisiana.” Said judgment was devolutively appealed by the Board and suspensively appealed by Ourso.

DISCUSSION

PEREMPTORY EXCEPTION ON APPEAL

While these appeals were pending, Ourso filed a peremptory exception raising the objection of prescription directly with this court. In the exception, Ourso reurges his assertion that the Board’s filing of the enforcement action was untimely and thus barred by prescription. Louisiana Code of Civil Procedure article 2163 allows an appellate court to consider a peremptory exception filed for the first time in that court, if pleaded prior to a submission of the case for a decision, and if proof of the ground of the exception appears of record. Thus, the exception is properly before this court. See Mandalay Oil & Gas, L.L.C. v. Energy Development Corp., 01-0993, pp. 10-11 (La.App. 1st Cir.8/4/04), 880 So.2d 129,136, unit denied, 04-2426 (La.1/28/05), 893 So.2d 72.

A determination of Ourso’s objection of prescription hinges on the interpretation of the document agreeing to the waiver of any defense related to prescription presented by the Board to Ourso in exchange for allowing him the opportunity to appear before the Board at its October 14, 1999 meeting. The waiver provided:

I, Corbett Ourso, Jr., do hereby acknowledge the following:
• my campaign for the October 1998 primary election has been subject to investigation by the Board of Ethics, acting as the Supervisory Committee on Campaign Finance, for the possible receipt of excessive loans;
• the Board of Ethics may take enforcement action for this alleged violation by virtue of the filing of a civil lawsuit for penalties;
• I have been offered the opportunity to enter into a consent agreement with the Board concerning the alleged violation;
• I have asked the staff of the Board for the opportunity to appear before the Board at its October 14, 1999 meeting in order to | r,request that any consent opinion reached allow me to seek judicial review of that opinion; and
• I understand that the staff of the Board is opposed to allowing judicial review of the consent opinion.

In consideration of the forgoing, and to preserve my opportunity to appear before the Board at its October 14, 1999 meeting, I do hereby agree to renounce, waive, and abandon any defense related to prescription or limitation of actions, particularly as to the provisions of R.S. 18:1511.11, that may have already accrued or which may accrue before November 19,1999.

The plain language of the waiver contract between the parties established that Ourso waived his right to raise the defense of prescription to the Board’s filing of an enforcement action for any violations for which prescription may have accrued or would accrue before November 19, 1999. Thus, interpreting the waiver language in conformity with established legal precepts, we overrule the exception.

SUFFICIENCY OF EVIDENCE

In his first assignment of error, Ourso also claims that no credible evidence was presented by the Board to establish who owned the funds that were allegedly contributed in excess of the limits imposed by La. R.S. 18:1505.2(H). The specific provision of the CFDA that Ourso is alleged to have violated is La. R.S. 18:1505.2(H)(3)(c), which provides in pertinent part:

No candidate including his principal campaign committee and any subsidiary committee thereof, shall accept from the same contributor a loan, transfer of funds, or contribution ... in the aggregate for all reporting periods of an election, as defined in this Paragraph/[] including reporting periods for any supplemental reports, in excess of the contribution limits established in Paragraph (1) of this Subsection....

The contribution limit per person per election applicable to Ourso’s campaign for the position of district court judge was $2,500. See La. R.S. 18:1505.2(H)(l)(a)(ii). However, La. R.S. 18:1505.2(H)(5) provides that “[t]he |,¡provisions of this Subsection shall not apply to any contributions or loans a candidate makes to his own campaign.”

The Board is authorized by La. R.S. 18:1505.2(J)(2) to institute civil proceedings to collect civil penalties if the Board determines, based on “any.sworn complaint or other document or information received by the [Board], that a violation of Subsection H” has occurred. As previously stated, the Board instituted the underlying civil proceeding based on the campaign finance disclosure reports submitted by Ourso’s campaign treasurer in compliance with the CFDA. Reading Subsection J(2) in pari materia with Subsection H(3)(c), the Board was only required to show that Our-so received contributions or loans in excess of the contribution limits mandated in Subsection H(l)(a)(ii) from a contributor other than himself. The campaign finance reports submitted by Ourso’s campaign treasurer plainly establish that such a violation occurred. Thus, the burden shifted to Ourso to overcome the evidence presented by the Board. See Landiak, 05-0758 at 8, 899 So.2d at 542.

In attempting to overcome the evidence presented by the Board, Ourso introduced a copy of a trust agreement executed by his father and presented the testimony of Judge Brenda Bedsole Ricks, his father, and himself. At trial, Corbett Ourso, Sr. (Ourso Sr.), who acted as Ourso’s campaign treasurer, testified that although he knew that there was a $2,500 per person per election limit on campaign contributions, he nevertheless reported on the campaign finance disclosure reports that he and his wife had contributed amounts in excess of those limits. Ourso Sr. stated that he believed the contributions were not in violation of the law because he considered the money contributed to be his son’s money as a result of the trust document he had executed several months prior to the commencement of Ourso’s election campaign. He said he was not advised regarding the nature of the ownership of assets placed in trust. Nonetheless, he acknowledged that the challenged contributions came from a joint checking |7account that he maintained with his wife and that was why he had listed the contributions as being made by him and his wife.

Outside of his belief that the money contributed actually belonged to his son, Ourso Sr. repeatedly acknowledged that the money was specifically provided to assist in financing his son’s election campaign. Ourso Sr. further testified that the money provided went into his son’s campaign fund and that he thought the checks by which the money was provided were made payable to his son. The actual checks were not presented at trial.

Although he acknowledged that he told his son that he and his wife would contribute to his campaign, Ourso Sr. stated that he never told his son how much he contributed nor did he tell his son who or how much anyone else contributed to the campaign pursuant to the express request of his son. Ourso stated that all campaign contributions were given to his personal secretary, who in turn would deposit the contributions in Ourso’s campaign account.

The trust agreement executed by Ourso Sr., as settlor, named Ourso as trustee of the trust and Ourso and his sisters as beneficiaries of the trust. The trust, referred to as the “Corbett L. Ourso Family Trust,” was designated an irrevocable, “spendthrift” trust that provided for distribution of income to Ourso’s mother in the event of Ourso Sr.’s death and to the beneficiaries only when a beneficiary timely exercised “the power to withdraw from the Trust in any calendar year any part or all of the property transferred to the Trust during that calendar year, in an amount not exceeding the amount of the annual exclusion....” The agreement further provided for the distribution of the principal and any accumulated income of the trust to the beneficiaries upon the occurrence of the death of both of Ourso’s parents. According to the trust document, the principal or corpus of the trust is comprised of “the sum of ONE HUNDRED AND NO/ 100 ($100.00) DOLLARS, | ^irrevocably given, donated, transferred and conveyed to the Trustee,] as well as such other sums of the Settlor’s cash and/or property which may be given, donated, transferred and conveyed unto the said Trustee from time to time.”

Considering this evidence, we reject Ourso’s assertion that the evidence demonstrates that a violation of La. R.S. 18:1505.2(H) did not occur. By law, the beneficiary of a trust only has a beneficial interest or right in the trust and not in the corpus of the trust; the ownership of the corpus of a trust is vested in the trustee during the tenure of the trust. See La. R.S. 9:1781, 1971 and 1972; Reynolds v. Reynolds, 388 So.2d 1135, 1138-1139 (La. 1979). The money contributed by Ourso Sr. and his wife would not have been a trust asset, since authority to manage and administer the trust, including distributions of income, is granted the trustee. See La. R.S. 9:2061-2131. Furthermore, the trust instrument itself expressly provides that the trustee has authority to administer and manage the assets of the trust. Hence, the existence of the trust does not support Ourso’s assertion that the money contributed by his parents from their joint checking account to his campaign was his own, since, by law and the terms of the trust agreement, Ourso Sr. did not have authority to manage or administer any of the assets of the trust. Accordingly, the trial court properly found that Ourso’s parents owned the money contributed to Our-so’s campaign, and that the amount contributed by his parents violated Subsection H in that the sum exceeded the contribution limit provided in Subsection H(l)(a)(ii). We thus reject the arguments raised by Ourso in this portion of his first assignment of error.

DUE PROCESS CHALLENGE

As part of his first assignment of error, Ourso challenges whether the evidence was sufficient to prove that he violated La. R.S. 18:1505.2(H), especially since neither the CFDA nor the jurisprudence interpreting the CFDA has established the requisite degree of proof for proving a violation. We do not find these arguments persuasive.

| flGeneraIly, the legal term “burden of proof’ “denotes the duty of establishing by a fair preponderance of the evidence the truth of the operative facts upon which the issue at hand is made to turn by substantive law.” Black’s Law Dictionary (8th ed). Under Louisiana’s civil law, the “burden of proof’ may shift back and forth between the parties as the trial progresses. Therefore, when the burden of proof has been specifically assigned to a particular party, that party must present sufficient evidence to establish the facts necessary to convince the trier of fact of the existence of the contested fact. Stated another way, the party on which the burden of proof rests must establish a prima facie case. If that party fails to carry his burden of proof, the opposing party is not required to present any countervailing evidence. On the other hand, once the party bearing the burden of proof has established a prima facie case, the burden then shifts to the opposing party to present sufficient evidence to overcome the other party’s prima facie case. Louisiana courts commonly apply this “shifting burden of proof’ in numerous specific instances, such as trial on motions for summary judgment and exceptions, and in workers’ compensation cases.

Landiak v. Richmond, 05-0758, p. 8 (La.3/24/05), 899 So.2d 535, 542.

Subsection J(2) of La. R.S. 18:1505.2 clearly provides that the Board shall institute a civil proceeding for the collection of a civil penalty when the supervisory committee determines that a violation of Subsection H of the statute has occurred. In ordinary civil actions, the plaintiff, in general, has the burden of proof and must prove the facts in issue by a preponderance of the evidence and not by some artificially created greater standard. See Talbot v. Talbot, 03-0814, p. 9 (La.12/12/03), 864 So.2d 590, 598; see also Lasha v. Olin Corp., 625 So.2d 1002, 1005 (La.1993). Only in exceptional controversies is the clear and convincing standard applied in civil cases “where there is thought to be special danger of deception, or where the court considers that the particular type of claim should be disfavored on policy.” Talbot, 03-0814 at 9, 864 So.2d at 598 (quoting McCormick on Evidence § 339, at 421 (5th ed.1999)). Accordingly, the general standard of proof applicable to civil proceedings, namely, a preponderance of the evidence, applies. See Louisiana State Board of Medical Examiners v. Booth, 76 So.2d 15, 19 (La.App. 1st Cir. 1954).

As the plaintiff in the civil proceeding, the Board bore the burden of proof. The trial court obviously believed the Board met its burden of proof regarding the Imviolation of La. R.S. 18:1505.2. After reviewing the record in its entirety, we find no error in the trial court’s determination. This portion of Ourso’s assignment of error is without merit.

INTEREST AWARD

In his second assignment of error, Ourso contends that the trial court improperly awarded interest on the penalty assessed from the date of judicial demand rather than from the date of judgment. We agree. Article 1921 of the Louisiana Code of Civil Procedure provides “[t]he court shall award interest in the judgment as prayed for or as provided by law.” In the petition filed by the Board to collect civil penalties from Ourso, the Board prayed “that a rule nisi be issued herein directed to [Ourso] ordering him to appear and show cause why he should not be found to be in violation of [La. R.S.] 18:1505.2(H) and why he should not be ordered to pay to the State of Louisiana appropriate civil penalties as required by [La. R.S.] 18:1505.2(J), together with legal interest from the date of the order and all costs incurred.” It is clear that based on the Board’s use of the phrase “together with” that the Board was praying for the assessment of legal interest from the date on which Ourso was “ordered to pay to the State of Louisiana appropriate civil penalties.” As the date of that order was February 23, 2006, we amend the judgment of the trial court to reflect an award of legal interest accruing from that date.

AMOUNT OF CIVIL PENALTY

Finally, as previously noted, the Board has separately appealed asserting that the trial court failed to assess a proper penalty in accordance with La. R.S. 18:1505.2(J)(1). The amount of the penalty assessed against Ourso by the trial court was $5,000, whereas La. R.S. 18:1505.2(J)(1) provides that the penalty shall be “not more than five thousand dollars or the amount of the violation, whichever is greater.” (Emphasis added.) The trial court disregarded the words “whichever is greater” and assessed Ourso the lesser of the two amounts. The evidence |! t demonstrates that Ourso received $40,311.89 in campaign contributions from his parents in excess of the limits provided in La. R.S. 18:1505.2(H)(l)(a)(ii), which excess sum was greater than $5,000. Accordingly, the trial court erred in failing to assess Ourso with a penalty of $40,311-89, and hence we amend the judgment appealed to reflect the assessment of a penalty in the proper amount.

CONCLUSION

For the foregoing reasons, we overrule the exception raising the objection of prescription, and we find the trial court’s determination that Corbett Ourso, Jr. violated Subsection H of La. R.S. 18:1505.2 to be correct; however, we find that the trial court erred in assessing Ourso a penalty of only $5,000. We hereby amend the award to reflect a penalty of $40,311.89 for the violation of La. R.S. 18:1505.2(H)(l)(a)(ii). We further amend the judgment to award legal interest on the civil penalties from the date of judgment, February 23, 2006. In all other respects, the judgment of the trial court is affirmed, with all costs of this appeal taxed to Corbett Ourso, Jr.

EXCEPTION OVERRULED; JUDGMENT AMENDED, AND AS AMENDED, AFFIRMED.

      . Louisiana Revised Statute 18:1505.2(H)(3)(a) provides, “[flor purposes of this Subsection, a primary election and a general election shall constitute two separate elections. For purposes of this Subsection, for candidates and committees that participate in a general election, he reporting period for the general election shall be deemed to begin the day following the primary election.”

      . " 'Spendthrift trust,' when used without other qualifying words, means a trust under which alienation by a beneficiary of an interest in income or principal is restricted to the full extent permitted by the Louisiana Trust Code." La. R.S. 9:1725(7).

      . The Board noted at trial and before this court that it was waiving any objection to the fact that the contributions submitted by Our-so's parents, up to the legally acceptable amount of $2,500 per parent per election, were not made by separate checks, but submitted as one check in the amount of $5,000 per election.