author: PETTIGREW, J.

text:
    PHOENIX ASSOCIATES LAND SYNDICATE, INC. v. E.H. MITCHELL & CO., L.L.C. and Steven M. Furr.
    No. 2007 CA 0108.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 14, 2007.
    Rehearing Denied Nov. 7, 2007.

      Thomas E. Schafer, III, George De-negre, Jr, Shannon S. Holtzman, Kelly B. Becker, New Orleans, August J. Hand, Covington, for Plaintiff-Appellant. Phoenix Associates Land Syndicate, Inc.
    Reginald J. Laurent, Slidell, for Defendants-Appellees E.H. Mitchell & Co., L.L.C. and Steven M. Furr.
    Before: CARTER, C.J., PETTIGREW, and WELCH, JJ.
   PETTIGREW, J.

| ?This appeal challenges a partial summary judgment rendered by the trial court on September 15, 2006. In granting partial summary judgment, the trial court ruled in favor of defendant, E.H. Mitchell & Co., L.L.C., and against plaintiff, Phoenix Associates Land Syndicate, Inc. (“Phoenix”), declaring that the operating agreements between Phoenix and Pontchartrain Materials Corp., L.L.C. (“Pontchartrain”) and Michael Ellinger (“Elhnger”) were subleases. The trial court further declared that in executing these subleases, Phoenix had breached the provisions of a sand and gravel lease that had been assigned to it by L. Murphy’s Trucking Service, Inc. (“Murphy’s Trucking”) as well as the Addendum to an Extension of Lease that Phoenix had entered into with E.H. Mitchell & Co., L.L.C. Accordingly, the trial court ruled that E.H. Mitchell & Co., L.L.C. was entitled to dissolution of the subject leases. From the judgment, Phoenix has appealed, and for the reasons that follow, we affirm the trial court’s judgment of September 15, 2006.

FACTS AND PROCEDURAL HISTORY

The record reveals that Elbert H. Mitchell, the grandfather of defendants, Steven M. Furr, Brian Furr, and Michael Furr, owned approximately 820 acres of land with sand and gravel deposits situated along the Pearl River in St. Tammany Parish. Upon Elbert Mitchell’s death, his grandsons became the owners of the land in question. The Furr brothers formed E.H. Mitchell & Co., L.L.C. (“Mitchell”), and Steven Furr (“Furr”) became its president. Mitchell thereafter entered into a lease with Murphy’s Trucking on August 8, 1996, regarding the mining of the sand and gravel on a portion of the property. Said lease contained, in pertinent part, the following paragraphs:

6.
It is agreed that during the term of this lease there will be no mining, excavation, and removal of sand and gravel from the hereinbefore-described property other than those permitted under the terms and provisions of this lease.
JjlO.
This lease may not be sub-let, in whole or in part, without the written permission of Lessor.

On May 14, 1997 and August 28, 1997, Mitchell and Furr gave written consent to Murphy’s Trucking and Murphy Construction Company, Inc. (“Murphy Construction”) to assign or sub-lease to Phoenix upon such terms and conditions as Murphy’s Trucking and Murphy Construction shall deem fit and proper. Said authority was “granted with the full understanding that the terms of the original lease shall not be changed and shall remain intact and that any sub-lease or assignment of this said lease shall be made subject to all the terms and conditions of the original lease dated August 8,1996.” Phoenix purchased Murphy Construction’s entire sand and gravel operation through an act of assignment dated August 29,1997.

On June 23, 1998, Mitchell and Phoenix entered into an addendum to and extension of the original sand and gravel lease between Mitchell and Murphy’s Trucking dated August 8, 1996. This lease was subsequently assigned to Murphy Construction, which in turn assigned the lease to Phoenix on August 29, 1997. The June 23, 1998 addendum and extension of lease, contained several key provisions. First, paragraph one, provided:

1.
All the provisions of the original sand and gravel lease between E.H. MITCHELL & COMPANY, L.L.C. and L. MURPHY’S TRUCKING SERVICE, INC., and assigned to PHOENIX ASSOCIATES LAND SYNDICATE, shall remain in full force and effect except as modified herein.

The addendum and extension of lease also provided for a change of the beginning of the primary term and extensions thereof and other conditions, to read as follows:

4.
Lessor grants unto Lessee, from the date of execution hereof and in lieu and substitution of the chronological terms contained in the original lease a renewal of the sand and gravel lease beginning as of this date an initial term of five (5) years. Lessee shall have the option to renew the sand and gravel lease after said initial five (5) years period for additional five (5) year terms, but in no event shall the Sand and Gravel Lease be extended in excess of twenty-five (25) years from this date; i.e., there shall be no more than four (4) extensions of the initial five (5) year term.

UThe addendum and extension of lease also dealt with potential changes of royalties to be paid as follows:

5.
The provisions concerning royalties in the sand and gravel lease are hereby modified as follows: The royalties paid for waste concrete sand, concrete sand, mason sand, washed gravel, road gravel, pea gravel and waste pea gravel shall remain the same. The issue of royalties shall be addressed every five (5) years and shall be increased in proportion to the market price of the materials, should the price thereof increase. It is the intent of the parties that E.H. MITCHELL & COMPANY, L.L.C., shall receive the same percentage in royalties for the aforementioned materials should the market price increase. [Emphasis supplied]

Phoenix later ran into financial difficulties and filed for bankruptcy reorganization on November 18, 1999. The bankruptcy court rejected Phoenix’s plan of organization and dismissed the bankruptcy on January 22, 2001. Problems developed between Phoenix and Mitchell regarding Phoenix’s operations, including, but not limited to, the alleged lack of payment of royalties, underpayment of royalties, the alleged taking of overburdened soil without remuneration to Mitchell, and the allowance of third parties on the premises to mine same without Mitchell’s written permission.

Prior to the expiration of the primary term on June 23, 2003, Phoenix sent a letter to Mitchell, notifying Mitchell of Phoenix’s desire to exercise its option to renew the lease on the property for another five years. The parties however could not come to an agreement as to the royalties owed pursuant to paragraph five (5) of the Addendum to and Extension of Lease executed on June 23, 1998. Phoenix nevertheless continued its operations on the leased premises without a written extension of said lease or an agreement with Mitchell as to the amount of royalties owed. Due to its inability to negotiate the price to be paid for a renewal lease, Phoenix sued Mitchell on June 17, 2003.

Subsequent to this, Phoenix entered into certain “Operating Agreements” with two other companies to mine part of Mitchell’s property. The first of these “Operating Agreements” was dated August 15, 2004, and involved Phoenix and Pontchartrain, while the second agreement dated June 15, 2005 was entered into between Phoenix and |fiEllinger. Mitchell never consented to these “Operating Agreements” either orally or in -writing.

Phoenix filed the instant suit on June 17, 2003, naming Mitchell and Furr as defendants therein. Phoenix sought to recover damages for Mitchell and Furr’s alleged breach of their obligations pursuant to the lease, as well their alleged tortious interference with Phoenix’s operations on the property owned by Mitchell. On July 3, 2003, Mitchell filed an answer setting forth affirmative defenses together with a reeon-ventional demand against Phoenix. Mitchell sought a cancellation of its lease with Phoenix, an accounting of materials removed by Phoenix from the premises, and damages for Mitchell’s lost opportunities to lease the property to other prudent operators. On June 25, 2003, Furr responded by filing peremptory exceptions that raised objections of no cause of action and prescription with respect to Phoenix’s claims against him.

On September 25, 2003, Phoenix filed a supplemental and amending petition wherein Phoenix clarified its factual allegations against Furr. Mitchell thereafter filed a supplemental and amended recon-ventional demand against Phoenix on August 10, 2005, wherein Phoenix clarified its factual allegations with respect to damages and sought a declaratory judgment that the operating agreements between Phoenix and various independent operators were unauthorized and prohibited subleases that were null and void. Mitchell also prayed for a judicial dissolution and cancellation of its lease with Phoenix. Mitchell further prayed for a preliminary injunction prohibiting Phoenix from removing products from the soil during the pen-dency of this litigation.

Mitchell filed a second supplemental and amending reconventional demand against Phoenix on October 27, 2005. Following a hearing on November 10, 2005, the trial court signed a judgment on December 15, 2005, denying Mitchell’s request for a preliminary injunction. On July 26, 2006, Mitchell moved for a partial summary declaratory judgment seeking a declaration that the operating agreements between Phoenix and Pontchartrain, and Phoenix and Ellinger were subleases and constituted a breach of the mineral lease between Mitchell and Phoenix.

|BThe trial court rendered judgment on September 15, 2006, declaring that Phoenix’s operating agreements with Pontchartrain and Ellinger constituted subleases, which amounted to a material breach by Phoenix of its lease with Mitchell. The trial court further dissolved and cancelled the sand and gravel lease between Mitchell and Phoenix. Thereafter, on October 10, 2006, Phoenix filed for a suspensive appeal from the trial court’s judgment of September 15, 2006, and it is that judgment that forms the basis of the instant appeal.

This court, ex proprio motu, issued a rule to show cause why the appeal should not be dismissed because the trial court’s judgment of September 15, 2006, appeared to be a partial summary judgment, which pursuant to La.Code Civ. P. art. 1915(B), had not been designated as a final judgment by the trial court. The parties were given thirty days to show cause by briefs, why this appeal should not be dismissed based upon the failure by the trial court to designate the judgment as final pursuant to La.Code Civ. P. art. 1915(B). See Motorola, Inc. v. Associated Indemnity Corporation, 2002-1351, pp. 16-17 (La.App. 1 Cir. 10/22/03), 867 So.2d 723, 732-733. By an order of this court dated April 19, 2007, the rule to show cause was recalled and this appeal was maintained.

ISSUES PRESENTED FOR REVIEW

In connection with its appeal in this matter, Phoenix has presented the following issues for review and consideration by this court:

1. Whether the district court erred in concluding that the Operating Agreements were prohibited subleases, where the Operating Agreements were “internally inconsistent” in material respects by Mitchell’s own admission, and therefore ambiguous, and where the evidence before the court was highly disputed.
2. Whether the district court improperly resolved material factual issues in dispute on summary judgment in terminating a sand and gravel lease where the lease did not provide for automatic termination in the event of a breach, Louisiana law requires consideration of numerous fact-intensive factors before a lease can be cancelled, and the proper resolution of those fact issues was hotly contested.

APPEALABILITY OF JUDGMENTS

There yet remains one last hurdle that hinders us in proceeding with our review of this matter, and that is whether the trial court properly designated the partial judgment as |7a final judgment pursuant to La.Code Civ. P. art.1915. The trial court’s designation however is not determinative of this court’s jurisdiction. Van ex rel. White v. Davis, 2000-0206, p. 2 (La.App. 1 Cir. 2/16/01), 808 So.2d 478, 480. In order to assist this court in our review of designated final judgments, the trial court should give explicit reasons, either oral or written, for its determination that there is no just reason for delay. In those cases where a trial court did not provide explicit reasons, either oral or written, for its determination that no just reason for delay existed, the appellate court is required to conduct a de novo determination of whether the designation was proper. R.J. Messinger, Inc. v. Rosenblum, 2004-1664, pp. 13-14 (La.3/2/05), 894 So.2d 1113, 1122. As an appellate court, we cannot determine the merits of such appeals unless our jurisdiction is properly invoked by valid final judgment. See La.Code Civ. P. art.2083.

Based on our de novo review of the designation utilizing the factors set forth in R.J. Messinger, Inc., 2004-1664 at 14, 894 So.2d at 1122-1123, we conclude that the designation is proper, and that the jurisdiction of this court has been properly invoked.

SUMMARY JUDGMENT

A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine issue of material fact. Johnson v. Evan Hall Sugar Coop., Inc., 2001-2956, p. 3 (La.App. 1 Cir. 12/30/02), 836 So.2d 484, 486. 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.Code Civ. P. art. 966(B). Summary judgment is favored and is designed to secure the just, speedy, and inexpensive determination of every action. La.Code Civ. P. art. 966(A)(2); Thomas v. Fina Oil and Chemical Co., 2002-0338, pp. 4-5 (La.App. 1 Cir. 2/14/03), 845 So.2d 498, 501-502.

On a motion for summary judgment, the initial burden of proof is on the mover. If, however, the mover will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the mover’s burden on the motion does not require that all essential elements of the adverse party’s claim, action, or ^defense be negated. Instead, the mover must 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, the adverse party must produce factual evidence sufficient to establish that he will be able to satisfy his evidentia-ry burden of proof at trial. If the adverse party fails to meet this burden, there is no genuine issue of material fact, and the mover is entitled to summary judgment. La.Code Civ. P. art. 966(C)(2); Robles v. ExxonMobile, 2002-0854, p. 4 (La.App. 1 Cir. 3/28/03), 844 So.2d 339, 341.

Summary judgments are reviewed on appeal de novo. An appellate court thus asks the same questions as does the trial court in determining whether summary judgment is appropriate: whether there is any genuine issue of material fact, and whether the mover is entitled to judgment as a matter of law. Ernest v. Petroleum Service Corp., 2002-2482, p. 3 (La.App. 1 Cir. 11/19/03), 868 So.2d 96, 97, writ denied, 2003-3439 (La.2/20/04), 866 So.2d 830.

In Smith v. Our Lady of the Lake Hospital, Inc., 93-2512, pp. 26-27 (La.7/5/94), 639 So.2d 730, 750-751, the Louisiana Supreme Court set forth the following parameters for determining whether an issue is genuine or a fact is material.

A “genuine issue” is a “triable issue.” More precisely, “[a]n issue is genuine if reasonable persons could disagree. If on the state of the evidence, reasonable persons could reach only one conclusion, there is no need for a trial on that issue. Summary judgment is the means for disposing of such meretricious disputes.” In determining whether an issue is “genuine,” courts cannot consider the merits, make credibility determinations, evaluate testimony or weigh evidence. “Formal allegations without substance should be closely scrutinized to determine if they truly do reveal genuine issues of fact.”
A fact is “material” when its existence or nonexistence may be essential to plaintiffs cause of action under the applicable theory of recovery. “[FJacts are material if they potentially insure or preclude recovery, affect a litigant’s ultimate success, or determine the outcome of the legal dispute.” Simply put, a “material” fact is one that would matter on the trial on the merits. Any doubt as to a dispute regarding a material issue of fact must be resolved against granting the motion and in favor of a trial on the merits. [Citations omitted.]

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. Foreman v. Danos and Curole Marine Contractors, Inc., 97-2038, p. 7 (La.App. 1 Cir. 9/25/98), 722 So.2d 1, 4, writ denied, 98-2703 (La.12/18/98), 734 So.2d 637. Thus, we now turn to a discussion of the applicable law.

DISCUSSION

In support of its motion for partial summary declaratory judgment, Mitchell introduced its memorandum together with the affidavit of its president, Furr, that referred to, and which by reference included, the following exhibits:

MSJ-1: being a copy of the Act of Sand and Gravel Lease, dated August 8, 1996, between Mitchell and Murphy;
MSJ-2(A) and MSJ-2(B): dated May 14,1997 and August 28,1997, respectively, being copies of the consent to sublease or assignment of lease, wherein Mitchell granted permission to Murphy to assign Mitchell’s sand and gravel lease dated August 8, 1996, to Phoenix;
MSJ-3: being a copy of the assignment of lease, dated August 29,1997, by which Murphy assigned the sand and gravel lease to Phoenix;
MSJ-Jf. being the Addendum and Extension of Lease, dated June 28,1998, in which Mitchell granted Phoenix an extension of the sand and gravel lease, which was assigned to Phoenix;
MSJ-5: being a copy of the Operating Agreement, dated August 16, 2004, between Phoenix and Pontchartrain; MSJ-6: being a copy of the Operating Agreement, dated June 15, 2005, between Phoenix and Ellinger;
MSJ-7: being a copy of the Operating Agreement, dated December 22, 2005, between Ellinger and Dirt Connection; and
MSJ-8: being a copy of the Operating Agreement, dated February 10, 2006, entered between Ellinger, Ron Omelian, and Lake Shore Materials.

In opposition to the motion for partial summary declaratory judgment, Phoenix introduced their memorandum and the following supporting exhibits.

Exbt. A: being the affidavit of Paul Alonzo, President of Phoenix;
Exbt. B: being selected portions of the deposition of Ellinger, dated April 19, 2006;
Exbt. C: being a letter by Fletcher Cockran to John DesJardine, Jr., The Dirt Connection, Inc., dated January 20, 2006; and
Exbt. D: being a letter dated February 2, 2006, from Fletcher Cockran to Marty A. Burnstein.

In rebuttal, Mitchell offered a supplemental affidavit of Furr, dated September 14, 2006.

holt is an undisputed fact in this litigation that Mitchell did not orally or in writing consent to the various “Operating Agreements” dated August 16, 2004, between Phoenix and Pontchartrain; dated June 15, 2005, between Phoenix and El-linger; dated December 22, 2005, between Ellinger and The Dirt Connection; and dated February 10, 2006, between Ellinger, Ron Omelian, and Lakeshore Materials. Therefore, there is no material issue of fact in dispute concerning same.

There is no material issue of fact in dispute in that Phoenix is prohibited from subletting the property without the written permission of Mitchell, pursuant to paragraphs 6 and 10 of the Act of Sand and Gravel Lease, dated August 8, 1996, between Mitchell and Murphy; the Consent to Sublease or Assign Lease, by Mitchell to Murphy, by acts dated May 14, 1997, August 28,1997; the Assignment of Lease, dated August 29, 1997, by Murphy to Phoenix; and the Addendum to and Extension of Lease, dated June 23, 1998, between Mitchell and Phoenix.

Pursuant to La.Code Civ. P. art. 1877, declaratory judgments “may be reviewed as other orders, judgments, and decrees.” “Accordingly, the character of this action as one seeking declaratory judgment does not affect the standard of review of the summary judgment.” Delahoussaye v. Board of Supervisors of Community & Technical Colleges, 2004-0515, p.4 (La.App. 1 Cir. 3/24/05), 906 So.2d 646, 649; Motorola Inc. v. Associated Indemnity Corporation, 2002-0716, p. 5 (La.App. 1 Cir. 4/30/03), 867 So.2d 715, 717.

As between Mitchell and Phoenix, the prohibition against Phoenix subleasing the premises set forth in paragraphs 6 and 10 of the August 8,1997 lease between Mitchell and Murphy; the assignment of that lease, dated August 29, 1997, by Murphy’s Trucking to Phoenix; and the addendum to and extension of lease, dated June 23, 1998, between Mitchell and Phoenix, makes paragraphs 6 and 10 the law between Mitchell and Phoenix. The obligation imposed upon Phoenix by paragraphs 6 and 10 of the Mitchell mineral ^Jjjlease is unequivocal and express. “[T]he mineral lease constitutes the law between the parties and regulates their respective obligations.” Terrebonne Parish School Board v. Castex Energy, Inc., 2004-0968 (La.1/19/05), 893 So.2d 789, (quoting Caskey v. Kelly Oil Company, 98-1193 p. 8 (La.6/29/99) 737 So.2d 1257, 1262); see Frey v. Amoco Production Co., 603 So.2d 166, 171 (La.1992).

The key issue in this appeal turns on whether the “Operating Agreements,” executed by Phoenix with Ellinger, on June 15, 2005, and Pontchartrain, on August 15, 2004, are in fact subleases and a direct breach by Phoenix of its Mitchell lease and the addendum to and extension of said lease, dated June 23,1998.

The covenant in the lease against subletting is for the benefit of the landlord, because it is regarded as for his interest to determine who shall be a tenant of his property. See Montecon v. Fawres, 3 La. Ann. 43 (1848). If the operating agreements are truly subleases, then Phoenix, by executing these agreements with Pontchartrain and Ellinger without Mitchell’s consent, has caused a “subletting-without-consent” breach of the Mitchell to Murphy lease, assignment of said lease by Murphy to Phoenix, and the addendum to and extension of the lease between Mitchell and Phoenix. See Major v. Hall, 251 So.2d 444, 449 (La.App. 1 Cir.1971), partially reversed on other grounds, 262 La. 243, 263 So.2d 22 (1972). This would cause Phoenix to be in active breach of paragraph 10 of the Mitchell to Murphy lease. The division of breaches into active and passive violations is preserved under La. R.S. 31:135 of the Louisiana Mineral Code. Violations of mineral leases may be either passive or active is established. Hunt v. Stacy, 25,578, p. 5 (La.App. 2 Cir. 2/23/94), 632 So.2d 872, 875, (citing comments to La. R.S. 31:135 of the Louisiana Mineral Code).

Phoenix takes the position that it was never its intention to enter into a sublease or to transfer any of its rights on the lease to Pontchartrain and Ellinger. Pontchartrain and Ellinger, according to Phoenix, were independent contractors engaged to perform certain |12specified services in the same way Phoenix contracted out other services, such as, trucking services. In support of this position, Phoenix referred to a particular paragraph in the recital portions of the “Operating Agreements” with both Pontchartrain and Ellinger that provide:

Whereas, Phoenix and Pontchartrain agree that this Operating Agreement is not and shall not be constructed as a lease or a sublease and that Phoenix does not surrender, transfer, or in any other matter assign to Pontchartrain its rights or obligations as Lessee under the aforesaid Sand and Gravel Lease, Consent to Sub-Lease or Assignment of Lease, and/or Addendum to and Extension of Lease.

Phoenix argues that the expression of intent by Pontchartrain and Ellinger not to consider their agreements as assignments or subleases legally binds the court and Mitchell in characterizing these contracts or at the minimum creates a material issue of fact to prevent summary judgment.

Whether the “Operating Agreements” between Phoenix, Pontchartrain, and Ellinger are really subleases is a question of law. Louisiana Supreme Court has repudiated Phoenix’s argument. “Questions of law cannot be confessed or admitted; the characterization of the contracts in issue is preeminently of that nature.” Howard Trucking Co., Inc. v. Stassi, 485 So.2d 915, 918 (La.1986), cert. denied, 479 U.S. 948, 107 S.Ct. 432, 93 L.Ed.2d 382 (1986). The intent of Phoenix, Ellinger, and Pontchartrain cannot determine the character of the operating agreements because “the legal character of a contract must be determined by its substance, by its effect on the parties, what the law — not the parties — says it is; so the parties’ intent is not conclusive.” Major, 251 So.2d at 448. “The intent of the parties to a contract should govern its interpretation ..., the best evidence of the parties’ intent is what the parties agreed to do.” La. Civ.Code art.2045. (Citations omitted.) Howard Trucking Co., 485 So.2d at 918. The trial court is entitled to apply the law to the legal documents before it without being hindered by erroneous assumptions of law by the parties. Cities Service Oil & Gas Corp. v. State, 574 So.2d 455, 461 (La.App. 2 Cir.), writs denied, 578 So.2d 132, 133 (La.1991). The effects on Mitchell’s rights control the character of the operating agreements. Although the parties entered into a written contract in which they were 1^identified as independent contractors, and this designation may have some validity between the parties, it is not binding or controlling on the rights of third persons. The rights of third persons are controlled by the substance, rather than the title, of the contractual relationship between the parties. Hughes v. Goodreau, 2001-2107, pp. 11-12 (La.App. 1 Cir. 12/31/02), 836 So.2d 649, 659, writ denied, 2003-0232 (La.4/21/03), 841 So.2d 793.

Under La. R.S. 31:4, the provisions of the Louisiana Mineral Code are applicable to all forms of minerals, including oil and gas. Said provisions also apply to rights to explore for, or mine, or remove from land the soil itself, gravel, shells, subterranean water and other substances. Provisions of the Mineral Code are supplementary to those of the Louisiana Civil Code and are applicable specifically to the subject matter of mineral law. La. R.S. 31:2. Individuals may renounce or modify what is established in their favor by the provisions of the Mineral Code unless they are expressly or impliedly prohibited, and the renunciation or modification does not affect the rights of others and is not contrary to the public good. La. R.S. 31:3.

Ownership of land includes all minerals occurring naturally in a solid state. Solid minerals are insusceptible of ownership apart from the land until reduced to possession. La. R.S. 31:5. Pursuant to La. R.S. 31:114, a mineral lease is a contract by which the lessee is granted the right to explore for and produce minerals, and in accordance with La. R.S. 31:2, mineral leases are construed as leases generally, and whenever pertinent codal provisions applicable to ordinary leases are applied to mineral leases. See Frey, 603 So.2d at 171.

The codal requirements for a sublease are the same as for the lease, since a sublease is a lease between the original lessee and a third party. A lease is a contract by which one party gives to another the enjoyment of the thing for a fixed price. La. CivJ uCode arts. 2669, 2674. A lease, which may be oral (La. Civil Code art. 2683), requires an object, a certain and determinate price, and consent. La. Civ.Code arts. 2670, 2671. Major, 251 So.2d at 447. The “Operating Agreements” between Phoenix, Pontchartrain, and Ellinger contain all three of these elements.

Phoenix contends the agreements with Pontchartrain and Ellinger were operating agreements. An “operating agreement” implies Pontchartain and Ellinger were operating the mine for Phoenix, and Phoenix was still the owner of the minerals produced. That is contrary to the very agreements between Phoenix, Pontchartrain, and Ellinger. Under both agreements, Pontchartrain and Ellinger became owners of the gravel, soil, and minerals produced. This fact is made clear in paragraph 16 of both the Pontchartrain and Ellinger agreements with Phoenix, which obligates Pontchartrain and Ellinger to sell their mined minerals, if any available, when Phoenix requests.

In paragraph 15 of the Mitchell lease to Phoenix, Mitchell granted Phoenix a singular right-of-way to reach the leased premises insofar as such right-of-way may be required. In paragraph 2 of the agreements between Phoenix, Pontchartrain, and Ellinger, Phoenix granted to Pontchartrain and Ellinger the right to use all existing roads on the subject property including the right to build additional roads.

In the original lease by Mitchell to Phoenix, Phoenix did not acquire the right to bring outside materials onto Mitchell’s property for reprocessing. In paragraphs 1, 8, 16, and 23 of Pontchartrain’s agreement, and paragraphs 8, 16, and 23 of Ellinger’s agreement, Pontchartrain and Ellinger were given the right to bring outside materials onto the Mitchell’s property for reprocessing. Further, Phoenix, in its agreements with Pontchartrain and Ellinger, granted to Pontchartrain and El-linger the use of all existing [^electrical utilities on the subject property — a grant of authority that Phoenix did not possess.

Phoenix dismembered Mitchell’s ownership by conferring upon Pontchartrain and Ellinger specified rights of use on the property. The operating agreements between Phoenix, Pontchartrain, and Ellinger provide that Pontchartrain and Ellinger shall have the sole and exclusive use of the area designated as Pontchartrain’s and El-linger’s mining and dredging plan. These rights to sole and exclusive use of Mitchell’s property were for the purpose of allowing Pontchartrain and Ellinger to dredge and/or mine various materials on and from the property, including access to the soils and minerals. They further gained the right to bring other scales and equipment on Mitchell’s property.

A “personal servitude” is a charge on a thing for the benefit of a person. La. Civ.Code art. 534. Right of use is one of three types of personal servitudes recognized by the Civil Code. A right of use servitude confers on a favorable person a specified use of an estate less than full enjoyment. La. Civil Code art. 639. A “mineral lease” on the other hand, is a contract by which the lessee is granted the right to explore for mine, or remove minerals from the land; it is a real right with some characteristics in the nature of a limited personal servitude or right of use. La. R.S. 31:4. La. R.S. 31:16. The operating agreements imposed charges on Mitchell’s land for the benefit of Pontchartrain and Ellinger. By executing the “Operating Agreements,” Phoenix conferred to Pontchartrain and Ellinger the right to specified uses of Mitchell’s land less than full enjoyment. This created a dismemberment of the ownership of Mitchell’s land, whether by lease or personal servi-tudes. Phoenix, pursuant to its mineral lease with Mitchell, possessed no authority to create real rights or personal servitudes on Mitchell’s property in favor of third persons. A land owner may convey, reserve or lease his right to explore and develop his land for production of minerals and to reduce them to possession. La. R.S. 31:15. Basic mineral rights that may be created by a landowner are the mineral servitude, the mineral royalty, and the mineral lease. La. R.S. 31:16. The executive right is the exclusive right to grant mineral leases of specified land or mineral rights. La. R.S. 31:105. Phoenix is neither the landowner nor owner of the executive right to create mineral leases or | ^servitudes. The effects of dismemberment support the trial court’s finding of a material breach. See Quinn Properties, Inc. v. Sabine River Realty, Inc., 95-1714 (La.App. 3 Cir. 5/29/96), 676 So.2d 639.

After a thorough de novo review of the record and all exhibits included herewith, we conclude that the assignment of error of appellant is without merit, and the trial court did not commit error in declaring that the operating agreements between Phoenix, Pontchartrain, and Ellinger to be in truth and in fact subleases. We further find the trial court did not commit error in declaring that the execution by Phoenix of these subleases with Pontchartrain and El-linger constituted a breach of the Act of Sand and Gravel Lease assigned from Murphy to Phoenix and the Addendum and Extension of Lease between Mitchell and Phoenix, and further granting a dissolution of that Act of Sand and Gravel Lease assigned from Murphy to Phoenix and the Addendum to and Extension of Lease between Mitchell and Phoenix.

For the foregoing reasons, we do hereby affirm the judgment of the trial court rendered September 15, 2006. All court costs of this appeal shall be assessed against Phoenix.

AFFIRMED.

CARTER, C.J., concurs in the result.

        . Pursuant to a separate act of assignment also dated August 8, 1996, Murphy's Trucking assigned its sand and gravel lease from Mitchell to Murphy Construction Company, Inc.

      . A lease providing for the exploring for, mining or removal from the land the soil itself or gravel and other substances is a mineral lease and is covered by the provisions of the Louisiana Mineral Code. See La. R.S. 31:4.

      . Former La. Civ.Code arts. 2669 and 2674 in condensed form are now reproduced in La. Civ.Code art. 2668 by Act 2004, No. 821, sec. 1. eff. Jan. 1, 2005.

      . Former La. Civ.Code art. 2683 in condensed form is now reproduced in La. Civ.Code art. 2681 by Act 2004, No. 821, eff. Jan. 1, 2005.

      . Former La. Civ.Code arts. 2669 and 2671 in condensed form is now reproduced in La. Civ.Code arts. 2668 and 2678, respectively, by Act 2004, No. 821, sec. 1, eff. Jan. 1, 2005.


source: Caselaw Access Project

author: CARTER, C.J.

license: Public Domain

text:
    DAIMLERCHRYSLER SERVICES OF NORTH AMERICA, L.L.C., as Successor to Chrysler Financial Company, L.L.C. v. SECRETARY, DEPARTMENT OF REVENUE.
    Nos. 2007 CA 0010, 2007 CA 0011.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 14, 2007.
    Rehearing Denied Nov. 7, 2007.

      Andre B. Burvant, New Orleans, Peter 0. Larsen, Jacksonville, FL, Counsel for PlaintiffAppellant, DaimlerChrysler Financial Services Americas, L.L.C.
    Emily W. Toler, Antonio Ferachi, Baton Rouge, Counsel for Defendant/Appellee, Secretary, Department of Revenue.
    Before: CARTER, C.J., PETTIGREW and WELCH, JJ.
   CARTER, C.J.

12At issue on appeal is a sales finance company’s entitlement to a refund of the amount of sales taxes advanced by the company for motor vehicle credit sales that were ultimately uncollectible and charged off of the company’s federal tax returns as bad debts. Finding the company is not entitled to a refund under LSA-R.S. 47:315, the Bad Debt Statute, we affirm.

FACTS AND PROCEDURAL HISTORY

Plaintiff, DaimlerChrysler Financial Services Americas, L.L.C. (DaimlerChrys-ler), is in the business of leasing motor vehicles, selling off-lease motor vehicles, and purchasing installment sale contracts from Chrysler dealerships. Daimler-Chrysler is registered as a dealer for Louisiana sales tax purposes and files monthly sales tax returns for monthly rental receipts and off-lease motor vehicle sales. Relevant to this litigation is Daimler-Chrysler’s business activity as the buyer of motor vehicle installment sales contracts.

At issue are numerous motor vehicle credit sales and the sales taxes paid on those purchases. DaimlerChrysler made none of the sales; rather, the sales were made pursuant to installment sales contracts entered between customers and various automotive dealerships. Under the terms of the contracts, the customers agreed to repay all or part of the purchase price, including a pro rata portion of sales tax, on an installment basis. After the installment contracts were signed, the dealerships would assign all of the dealerships’ rights under the terms of the installment contracts to DaimlerChrysler without recourse. In exchange for the assignments, DaimlerChrysler paid the dealerships the full amount financed under |sthe contracts, including the full amount of sales tax due. From this sum, the dealerships remitted the sales tax due on the sales of the vehicles to the vehicle commissioner.

After the installment contracts were assigned to DaimlerChrysler, the customers made payments directly to DaimlerChrys-ler. If a customer defaulted on the installment contract, the vehicle was repossessed and sold, with the proceeds from the sale applied to the outstanding debt. The remaining unpaid balance, including a pro rata amount of the financed sales tax, was written off by DaimlerChrysler for accounting and federal income tax purposes.

In October 1997, DaimlerChrysler filed a refund claim with the Louisiana Department of Revenue (DOR), seeking return of Louisiana sales tax paid and, ultimately, charged off of its federal income taxes for the period October 3, 1994, through March 27, 1997. In 2000, DaimlerChrysler filed a second refund claim with the DOR for the period April 1,1997, through December 31, 1999. The DOR denied both claims, and DaimlerChrysler lodged appeals with the Louisiana Board of Tax Appeals (BTA).

The BTA denied DaimlerChrysler’s appeals, and DaimlerChrysler petitioned the Nineteenth Judicial District Court for judicial review. The district court concluded that DaimlerChrysler did not qualify as the dealer entitled to a refund under LSA-R.S. 47:315 and, further, that the dealerships could not assign or transfer the refund available under LSA-R.S. 47:315 because sellers of motor vehicles are ineligible for a refund under the Bad 14Pebt Statute. On September 21, 2006, the district court entered judgment in favor of the DOR, and this appeal follows.

STANDARD OF REVIEW

By statutory and constitutional mandate, the Nineteenth Judicial District Court is vested with the power to review decisions of the BTA. LSA-Const. art. V, § 16; LSA-R.S. 47:1434-1435. The ruling of the district court is subject to appellate review by suspensive appeal to this court in the exercise of its appellate jurisdiction over civil matters. LSA-Const. art. V, § 10; LSA-R.S. 47:1435.

Judicial review of a decision of the BTA is rendered upon the record as made before the BTA and is limited to facts on the record and questions of law. Marathon Pipe Line Co. v. Crawford, 00-2753 (La.App. 1 Cir. 2/15/02), 808 So.2d 873, 877, writ denied, 02-0804 (La.6/7/02), 818 So.2d 774; see LSA-R.S. 47:1434. When, as here, there are no factual disputes and the questions before the court are solely questions of law, the judgment of the BTA is affirmed if the BTA correctly applied the law and adhered to the correct procedural standards. See Marathon, 808 So.2d at 877.

A statute that imposes a tax should be liberally construed in favor of the taxpayer. McNamara v. Central Marine Service, Inc., 507 So.2d 207, 208 (La.1987). However, exemptions from taxation are strictly construed against the taxpayer claiming the benefit thereof and must be clearly, unequivocally, and affirmatively established by the taxpayer. Whitten Foundation v. Granger, 04-0934 (La.App. 1 Cir. 11/03/06), 950 So.2d 720, 724-725, writ denied, 06-2828 (La.2/2/07), 948 So.2d 1080.

| BTax laws are sui generis, and the law does not afford one seeking a refund of a sales tax overpayment a remedy under Civil Code theories of recovery. Church Point Wholesale Beverage Co., Inc. v. Tarver, 614 So.2d 697, 708-709 (La.1993); Clark v. State, 02-1936 (La.App. 1 Cir. 1/28/04), 873 So.2d 32, 35-36, writ denied, 04-0452 (La.4/23/04), 870 So.2d 300. Accordingly, statutes providing refunds for credit sales that become bad debts are a matter of legislative grace and, like exemptions, should be strictly construed against the taxpayer.

With these legal precepts in mind, we examine whether DaimlerChrysler is entitled to a refund under LSA-R.S. 47:315, the Bad Debt Statute.

DISCUSSION

Louisiana Revised Statutes 47:315 B provides for reimbursement of sales tax previously paid by the dealer whenever the unpaid balance on an account due to the dealer on the purchase of tangible personal property has been found to be bad in accordance with Section 166 of the United States Internal Revenue Code and the amount actually has been charged off for federal income tax purposes. “Dealer” is defined as “[e]very person who sells at retail ... tangible personal property.” LSA-R.S. 47:301(4)(b) “Person” includes an “individual, firm, copartnership, joint adventure, [or] corporation.” LSA-R.S. 47:301(8)(a). Neither the definition of “dealer” nor the definition of “person” includes an assignee.

| fiDaimlerChrysler maintains it is error to limit application of LSA-R.S. 47:315 B to “the dealer that made the sale.” Daim-lerChrysler argues that because it is a registered dealer in the state of Louisiana, because a car is tangible personal property, and because it has charged the uncol-lectible amounts due on the installment contracts off for federal income tax purposes, it is entitled to a refund.

Louisiana Revised Statutes 47:315 B is clear that prior to its application there must exist an “unpaid balance of an account due to the dealer for the purchase of tangible personal property.” (Emphasis supplied.) Although DaimlerChrysler may be a registered Louisiana dealer for certain transactions (i.e. the sale of off-lease motor vehicles), that does not necessarily make it the dealer for all transactions or, more particularly, for the transactions it finances. DaimlerChrysler made no retail sales to the buyers whose credit accounts it purchased. DaimlerChrysler’s federal income tax returns for 1994-1997 list zero for its “Gross receipts or sales.” Schedule K of those same returns lists Daimler-Chrysler’s business activity as “sales finance” and its products or service as “financial products.”

Moreover, under the plain terms of LSA-R.S. 47:315 B, the reimbursement is limited to the “tax previously paid by the dealer.” It is undisputed that Daimler-Chrysler did not submit the motor vehicle sales tax to the vehicle commissioner. Rather, the dealerships remitted the sales tax due on the sales of the vehicles to the vehicle commissioner, on behalf of their customers.

In the alternative, DaimlerChrysler maintains that it is entitled to a refund under the Bad Debt Statute in light of its status as assignee of the|7installment sales contracts and LSA-C.C. art. 1984, which provides: “Rights and obligations arising from a contract are heritable and assignable unless the law, the terms of the contract or its nature preclude such effects.”

The DOR regulations currently recognize that the right to seek a refund pursuant to LSA-R.S. 47:315 B may be transferred or assigned to a lending institution; however, “[n]o refund is authorized on bad debts arising ... on sales financed by lending institutions ... unless the lender has full recourse against the seller for any unpaid amounts.” LAC 61:I.4369B.5 (June 2006). The installment contracts herein were assigned to DaimlerChrysler “without recourse,” which under the regulation, makes DaimlerChrysler ineligible to receive a refund.

But more significant to this court’s determination is the DOR’s position that LSA-R.S. 47:315 and Regulation LAC 61:1.4369 are inapplicable to the transactions at issue. Generally, when tangible personal property is sold, the dealer is charged with the duty to collect the Louisiana sales tax and remit the same to the DOR. See LSA-R.S. 47:303 A. However, the sales tax due on vehicles subject to the vehicle registration license tax is unique in that it is to be paid directly by the purchaser to the vehicle commissioner as the agent of the collector of revenue. LSA-R.S. 47:303 B(3)(a); see also LSA-R.S. 47:303 B(5). The statutory duty of the vendor is limited to providing the purchaser with a notarized statement containing a full description of the vehicle and other information as specified by statute and DOR regulation. LSA-R.S. 47:303 B(2).

|sFor motor vehicle sales, the dealer has no statutory obligation to collect the sales tax from the buyer. See LSA-R.S. 47:304 A; Mack v. Harris Chevrolet, 95-0609 (La.App. 1 Cir. 6/28/96), 679 So.2d 907, 908 (on rehearing), writ denied, 96-1987 (La.11/15/96), 682 So.2d 762. This court has held that a buyer cannot contractually assign the legislative obligation to collect and remit sales taxes on motor vehicles to a third party. Mack, 679 So.2d at 908 (The buyer’s contractual assignment of her obligation to pay sales tax to her lending source could not transfer the obligation to the selling dealer.).

While it is undisputed that Daim-lerChrysler was the source of funds used to pay the sales tax due on the motor vehicle sales and that the dealerships remitted the taxes to the vehicle commissioner on behalf of their customers, neither DaimlerChrysler nor the dealerships had a statutory obligation to pay the taxes. The dealerships could not transfer to Daimler-Chrysler a statutory obligation, and a related statutory benefit, that they did not have. An assignee acquires no greater rights than its assignor. Herlitz Construction Co., Inc. v. Matherne, 476 So.2d 1037, 1040 (La.App. 3 Cir.1985).

CONCLUSION

It is undisputed that DaimlerChrysler made no retail sales to the consumers whose credit accounts it purchased. Neither it nor the dealerships had a statutory obligation to collect the motor vehicle sales tax or to account for the tax to the DOR. DaimlerChrysler is not entitled to a refund under the Bad Debt Statute, LSA-R.S. 47:315. For the foregoing reasons, the | judgment of the BTA is affirmed. Costs of this appeal are assessed to appellant, DaimlerChrysler Financial Services Americas, L.L.C.

AFFIRMED.

      . The two district court petitions were consolidated by district court order on January 30, 2006.

      . "Whenever the unpaid balance of an account due to the dealer for the purchase of tangible personal property or the sale of services subject to sales taxation has been found to be bad in accordance with Section 166 of the United States Internal Revenue Code and has actually been charged off for federal income tax purposes, the dealer shall be entitled to reimbursement of the amount of tax previously paid by the dealer on such amounts.” LSA-R.S. 47:315 B(l).

      . Prior to its current text, this regulation was promulgated by the Department of Revenue & Taxation, Sales Tax Section, as LR 13:107 (February 1987) and amended by the Department of Revenue, Policy Services Division, as LR 31:97 (January 2005).


text:
    STATE of Louisiana v. Kenneth FREEMAN.
    No. 2007 KA 0470.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 14, 2007.

      Scott Perrilloux, District Attorney, Am-ite, Patrick Walsh Dunn, Jeff Johnson, Assistant District Attorneys, Counsel for PlaintiffiAppellee, State of Louisiana.
    Frank Sloan, Mandeville, Counsel for Defendant/Appellant, Kenneth Freeman.
    Before: CARTER, C.J., PETTIGREW and WELCH, JJ.
   CARTER, C.J.

| aThe defendant, Kenneth Freeman, was charged by grand jury indictment with aggravated rape, a violation of LSA-R.S. 14:42. He pled not guilty and, following a trial by jury, was convicted as charged. The defendant was sentenced to life imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence. The defendant now appeals, urging in a single assignment of error, that the trial court erred in preventing him from introducing evidence that the victim made an earlier false allegation of rape. Finding no merit in the assigned error, we affirm the defendant’s conviction and sentence.

FACTS

During the early morning hours of October 16, 2004, as the victim lay asleep on her couch, the defendant used a ladder to enter her apartment through the bathroom window. The victim did not know the defendant and had not given him permission to enter her residence. At trial, the defendant claimed he entered the residence because he was high on crack and was looking for something to steal. While it was undisputed that the defendant was armed with a knife when he entered the apartment and that a sexual encounter occurred, all other facts (including the vol-untariness of the sexual encounter) were in dispute.

The victim testified that she was asleep on her couch when she heard a noise and then felt a presence in the room. She awakened to find the defendant standing before her with a white towel in his hand. The defendant placed the towel, which was soaked with bleach, over the victim’s head. According to the victim, the defendant then tied her hands behind her back |swith a latex glove he had been wearing. The defendant put a knife to the victim’s back and threatened to stab her if she screamed. When the victim asked the defendant what he wanted from her, the defendant replied, “money.” The defendant then proceeded to fondle the victim’s body, including her vaginal area. The defendant then forced the victim into the bedroom, instructed her to get on her knees, and placed his penis in her mouth. Once the victim failed to participate in the oral sexual encounter, the defendant removed his penis from her mouth and ordered her to get into the bed. The defendant then vaginally raped the victim. The victim testified that she did not consent to the sexual encounter. She explained that she did not resist because she feared the defendant would kill her. The victim claimed her arms remained tied behind her back throughout the entire encounter. Before leaving the apartment, the defendant took approximately $150.00 from the victim’s purse. The victim immediately contacted her mother and told her that she had been raped.

The victim subsequently identified the defendant from a photographic lineup. The defendant initially denied ever being in the victim’s home but later admitted to being present in the apartment, stating that the victim had invited him there.

At trial, the defendant provided a different account of the events. The defendant admitted that he broke into the victim’s apartment but claimed that the sexual encounter was consensual. He claimed he only intended to steal property from the apartment so that he could get more drugs. He testified that once he entered the apartment, he was shocked to see that someone was home. He immediately explained to the victim that he did not I ¿intend to harm her. He then placed the knife he was carrying (which he claimed he used only to open the window) on the kitchen counter. Thereafter, according to the defendant, the victim asked him to have sex with her. Although he believed it to be a strange request, the defendant agreed to participate. He denied ever tying the victim up or forcing her to have sex with him. The defendant further explained that at the conclusion of the sexual encounter he asked the victim for some money, and she gave it to him.

Officer Allen Ordeneaux of the Hammond Police Department testified that during the investigation of the incident, the victim stated that the defendant attempted to tie her hands behind her back but was unsuccessful. Officer Ordeneaux further testified that, in his opinion, it would have been impossible for the victim’s hands to be bound with the glove found at the scene.

ASSIGNMENT OF ERROR

In his sole assignment of error, the defendant contends the trial court erred in prohibiting him from introducing evidence that the victim previously made a false allegation of rape. Specifically, the defendant intended to introduce evidence that the victim accused another man of kidnapping and raping her prior to the incident in question. The defendant also intended to introduce evidence that the accused in the prior case was acquitted of both charges following a bench trial. He further alleged that the evidence in the prior case was similar to the instant case in that both cases contained positive DNA and photographs. On appeal, the defendant contends the trial court erred in not only-failing to make the initial 15determination of whether reasonable jurors could find, based on the evidence presented, that the victim made a prior false allegation, but also in excluding such evidence.

In a prosecution for sexually assaultive behavior, LSA-C.E. art. 412 prohibits the introduction of evidence of the victim’s past sexual behavior, with certain limited exceptions. “Past sexual behavior” is defined as sexual behavior other than the sexual behavior with respect to which the offense of sexually assaultive behavior is alleged. LSA-C.E. art. 412 F. If a defendant wishes to offer evidence of past sexual behavior pursuant to one of the exceptions, he must file a motion stating his intent to do so. LSA-C.E. art. 412 C. The trial court must then hold a closed hearing to determine whether the offered evidence is admissible. LSA-C.E. art. 412 E.

Alternatively, the Louisiana Supreme Court has held that a defendant may present evidence that a victim made prior false allegations regarding sexual activity for impeachment purposes pursuant to LSA-C.E. art. 607 C. State v. Smith, 98-2045 (La.9/8/99), 743 So.2d 199. In Smith, the defendant was convicted of attempted indecent behavior with a juvenile. During trial, the defense counsel cross-examined the victim’s mother’s friend regarding similar accusations the victim had made against her cousin and allegedly recanted. The State thereafter moved to prevent any further such questioning in accordance with LSA-C.E. art. 412. After a hearing outside the jury’s presence, the trial court applied Article 412 and excluded any evidence of prior false allegations. The supreme court held that Article 412, the “rape shield statute” that prohibits the introduction of |r,evidence of the victim’s past sexual behavior, does not preclude the introduction of evidence of the victim’s prior false accusations for impeachment purposes. Smith, 743 So.2d at 202-203. The supreme court concluded that when a defendant seeks to introduce evidence that the victim made prior false allegations of molestation, the issue is one of credibility, and Article 412 is inapplicable. The Smith court stated:

When a defendant seeks to introduce evidence that the victim has made such prior false accusations, the trial judge must evaluate that evidence by determining whether reasonable jurors could find, based on the evidence presented by defendant, that the victim had made pri- or false accusations and whether all other requirements of the Code of Evidence have been satisfied.

Smith, 743 So.2d at 203-04.

Thus, two requirements exist before evidence of prior sexual activity can be admitted for impeachment purposes. First, the activity must be of a sexual nature. Second, there must be evidence that the statement is false. State v. Richard, 01-1112 (La.App. 1 Cir. 2/15/02), 812 So.2d 737, 739, writ denied, 02-1264 (La.11/22/02), 829 So.2d 1038. Assuming this initial burden is met, all other standards for the admissibility of evidence apply. Smith, 743 So.2d at 203.

Constitutional guarantees do not assure the defendant the right to the admissibility of any type of evidence, only that which is deemed trustworthy and has probative value. State v. Governor, 331 So.2d 443, 449 (La.1976). “Relevant evidence” is evidence that has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than without the evidence. LSA-C.E. art. 401. The trial judge in deciding the issue of relevancy must determine whether the evidence bears a rational connection to the fact at issue in the case. State v. Williams, 341 So.2d 370, 374 (La.1976). Except as limited by the Code of Evidence and other laws, all relevant evidence is admissible and all irrelevant evidence is inadmissible. LSA-C.E. art. 402. Although relevant, evidence may nonetheless be excluded if the probative value is substantially outweighed by its prejudicial effect. See LSA-C.E. art. 403. A trial judge’s determination regarding the relevancy and admissibility of evidence will not be overturned on appeal absent a clear abuse of discretion. State v. Easley, 432 So.2d 910, 912 (La.App. 1 Cir.1983).

In the instant case, the defendant filed a pretrial “Motion to Allow Evidence of Prior Allegations of Rape by the Complainant for Credibility Purposes.” At the hearing on the motion, the State and the defense stipulated to the existence and outcome of the prior case wherein the accused was acquitted of forcible rape and aggravated kidnapping charges. Following argument from both parties on the applicability of Smith, the trial court denied the motion. The court reasoned:

Okay. The [rape] shield statute is inapplicable and that’s why we’re having the hearing, because it’s being put forth to show credibility. I find the [Smith] case very much distinguishable from the case before me.
In the prior case there was evidence of recanting, and any reasonable jury could have found that she made prior false allegations.
In the present case what we have is a previous case that resulted in a finding of not guilty and [that] standing alone is not evidence that the victim was untruthful or recanted.
Stated differently, if a woman is raped in two separate occasions and the first trial results in a finding of not guilty, does that mean that the victim’s credibility is always going to be under attack in the second trial?
It’s very powerful and explosive evidence. I find specifically that it has some minimal relevance of a speculative | ^nature under Article 403, but its prejudicial effect to the prosecution overwhelmingly outweighs any evidentiary effect that it may have.
So, in this particular case, I will distinguish the previous case and prohibit evidence of the prior finding of not guilty and claim on the part of this victim.

The defendant asserts that in ruling on the motion in limine the trial court failed to make the requisite determination regarding whether reasonable jurors could find that the victim made prior false accusations of sexual abuse. However, the reasons establish that the trial court concluded that in the instant case, unlike Smith, a reasonable jury could not have found from the evidence adduced at the hearing that the victim made a prior false allegation.

In Smith, the victim admitted that she made prior accusations of improper sexual behavior, and two witnesses corroborated that fact. At least one independent witness testified that the victim recanted those accusations. Smith, 743 So.2d at 200-201, 203. As noted by the trial court, Smith is distinguishable from the instant case in that the defense herein offered no evidence that the victim ever retracted the prior allegation of abuse, and there was no independent witness to testify that the allegation was false. Instead, the defense argued that the mere fact that the trial on the prior allegations resulted in an acquittal indicated the victim’s allegations were false. We disagree. The fact that another individual accused of raping the victim was acquitted does not establish that the accusation against that individual was false. At best, this evidence proves only that the State failed to meet its burden of proving the offenses charged.

j9The evidence presented at the hearing, without more, was not sufficient evidence from which a jury could reasonably conclude that the victim made a prior false accusation of sexual behavior. Moreover, the trial court stated the evidence was otherwise inadmissible under LSA-C.E. art. 403. The trial court reasoned that the evidence was speculative and only minimally relevant, and its probative value would be greatly outweighed by its prejudicial effect.

In conclusion, we find the trial court did not err or abuse its discretion in denying the defendant’s motion and in excluding this evidence. This assignment of error lacks merit. For the foregoing reasons, the defendant’s conviction and sentence are affirmed.

CONVICTION AND SENTENCE AFFIRMED.


author: DOWNING, J.

text:
    WAL-MART STORES, INC. v. William T. WHITE. William T. White v. Wal-Mart Stores, Inc.
    No. 2007 CA 0069, 2007 CA 0070.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 14, 2007.

      William T. White, Hammond, In Proper Person.
    Brian A. Gilbert, New Orleans, for Appellant.
    Scott F. Davis, Metairie, Charles M. Kreamer, Sr., Lafayette, Counsel for Ap-pellee Wal-Mart Stores, Inc.
    Before: PARRO, KUHN and DOWNING, JJ.
   DOWNING, J.

|2In these consolidated workers’ compensation suits, the employee, William T. White, appealed; the employer, Wal-Mart Stores, Inc. (Wal-Mart), answered the appeal. The Office of Workers’ Compensation Judge (WCJ) ruled that Mr. White had failed to prove his entitlement to further indemnity or medical benefits and entered judgment denying his claims. It also entered judgment denying Wal-Mart’s claim for forfeiture of benefits and awards of penalties and attorney fees pursuant to Louisiana’s forfeiture statute, La. R.S. 23:1208. For the following reasons we affirm judgment:

The standard of review in workers’ compensation cases are subject to the manifest error standard of appellate review. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840, p. 7 (La.7/1/97), 696 So.2d 651, 556. An appellate court cannot set aside the WCJ’s factual findings unless it determines there was no reasonable basis for those findings, or if there is support in the record for the findings, that the record as a whole shows the findings are clearly wrong. See Stobart v. State DOTD, 617 So.2d 880, 882 (La.1993).

Mr. White argues in his appeal, that the WCJ erred in concluding he was no longer entitled to benefits. Mr. White contends that he is still suffering from injuries he incurred from a fall while working in a Wal-Mart warehouse on April 21, 2005. Mr. White, however, presented no evidence other than his own testimony that he was unable to resume employment. Nor did he present any evidence that he required continued medical treatments for a work-related injury.

While a claimant’s testimony can be enough to establish a claim, the trial court is not bound to accept this testimony. See Bruno v. Harbert International Inc., 593 So.2d 357, 361 (La.1992). We note that Mr. White | ^presented no medical evidence to support his claim. Thus, after a thorough review of the record, we conclude that the WCJ had a reasonable basis to deny Mr. White’s claim, and the record as a whole supports that conclusion. The WCJ therefore, was not manifestly erroneous in concluding that Mr. White did not prove his entitlement to benefits. Mr. White’s assignment of error is without merit.

In Wal-Mart’s first assignment of error, it alleges that the WCJ erred in denying its La. R.S. 23:1208 claim which would have resulted in the forfeiture of Mr. White’s benefits. Wal-Mart contends that Mr. White was willfully exaggerating his complaints to his physicians in an effort to obtain benefits. In support of this allegation, it offered a surveillance video showing Mr. White walking into a treatment facility with a cane and, later the same day, walking around performing routine errands without the cane. Wal-Mart argues that this surveillance tape strongly indicates that Mr. White was exaggerating his symptoms solely for the purpose of obtaining benefits. To bolster its argument, Wal-Mart presented the testimony of Marilyn Kovar, the treating physical therapist, who viewed the video. She 1 ¿testified that in her opinion, Mr. White’s actions on the tape were not consistent with his physical complaints.

The surveillance video shows that sometimes Mr. White walked with a cane and that sometimes he did not. Both his treating physician and his therapist testified that the cane was never prescribed for Mr. White. Ms. Kovar said that walking with a cane may have improved Mr. White’s balance, but the cane was really unnecessary. In fact, she testified that Mr. White needed to strengthen his muscles; therefore, it was better for his recovery for him to not use a cane.

The statutory forfeiture of benefits is a harsh remedy and must be strictly construed. Leonard v. James Industrial Constructors, 03-0040, p. 9 (La.App. 1 Cir. 5/14/04), 879 So.2d 724, 730. The WCJ evidently found that Mr. White’s occasional use of the cane was not enough proof of exaggeration of his symptoms to actuate the forfeiture statute.

After a thorough review of the record, exhibits and jurisprudence, we conclude the WCJ did not err in ruling that Wal-Mart failed to prove through the surveillance tape that Mr. White had willfully misrepresented his symptoms, thereby triggering the forfeiture statute. Thus, Wal-Mart’s first assignment of error is without merit.

In Wal-Mart’s second assignment of error, it alleges that Mr. White “forged” an “unable to work” slip, which offense also should have actuated the forfeiture statute and resulted in the loss of his benefits. In support of this argument, Wal-Mart claims that Mr. White deliberately misled the doctor’s office staff into believing that Dr. Roch Hontas had said he was unable to return to work, when in fact, Dr. Hontas had intended for Mr. White to return to work in a light-duty capacity. Wal-Mart contends that these facts established a violation of La. R.S. 23:1208.

|sWe note that Wal-Mart alleges that the “unable to work” document was forged by Mr. White. However, the paper stating that Mr. White was unable to return to work was not a forgery, but a document prepared by the staff in Dr. Hontas’ office. Additionally, while the doctor’s staff admitted that there was some confusion about the slips given to Mr. White, there was absolutely no evidence that Mr. White deliberately misled them with intent to obtain benefits. Even Dr. Hontas’ testimony was vague about the discrepancies when confronted with Mr. White’s “unable to work” slips. Evidently, the WCJ did not find that these discrepancies rose to the level of “willfully [making] a false statement or representation,” See La. R.S. 23:1208 A, since it dismissed Wal-Mart’s petition.

After a thorough review of the record, exhibits and jurisprudence, we conclude that the OWJ was not manifestly erroneous in ruling that Wal-Mart failed to meet its burden of proving that the circumstances surrounding the “unable to work” slips triggered the forfeiture statute. Thus, Wal-Mart’s second assignment of error is without merit.

As these issues involve no more than an application of well-settled rules to a recurring fact situation, we affirm the judgment by memorandum disposition in accordance with Uniform Courts of Appeal Rule 2-16.1B. All costs of this appeal are assessed against Wal-Mart Stores, Inc.

AFFIRMED.

PARRO and KUHN, JJ., concur.

      . The applicable version of Louisiana Revised Statute 23:1208 provides, in pertinent part:
      A. It shall be unlawful for any person, for the purpose of obtaining or defeating any benefit or payment under the provisions of this Chapter, either for himself or for any other person, to willfully make a false statement or representation.

      C.(4) Notwithstanding any provision of law to the contrary which defines “benefits claimed or payments obtained”, for purposes of Subsection C of this Section, the definition of “benefits claimed or payments obtained” shall include the cost or value of indemnity benefits, and the cost or value of health care, medical case management, vocational rehabilitation, transportation expense, and the reasonable costs of investigation and litigation.
      D. In addition to the criminal penalties provided for in Subsection C of this Section, any person violating the provisions of this Section may be assessed civil penalties by the workers’ compensation judge of not less than five hundred dollars nor more than five thousand dollars..., and may be ordered to make restitution. Restitution may only be ordered for benefits claimed or payments obtained through fraud and only up to the time the employer became aware of the fraudulent conduct.

      E. Any employee violating this Section shall, upon determination by hearing officer forfeit any right to compensation benefits under this Chapter.


author: HUGHES, J.

text:
    Robert “Bobby” HAYDEL, Jr. v. Rhonda PELLEGRIN.
    No. 2007 CU 0922.
    Court of Appeal of Louisiana. First Circuit.
    Sept. 14, 2007.

      Gregory J. Schwab, Hourna, Counsel for Plaintiff/Appellee Robert “Bobby” Haydel, Jr.
    Michael S. Zerlin, Thibodaux, Counsel for Defendant/Appellant Rhonda Pellegrin.
    Before: WHIPPLE, GUIDRY, and HUGHES, JJ.
   HUGHES, J.

1 ^Appellant Rhonda Pellegrin appeals a judgment rendered by the 32nd Judicial District Court wherein the trial court held her in contempt of court and ordered her to pay $500.00 in attorney’s fees as well as the costs associated with two contempt motions. The judgment further authorized appellee, Dr. Robert “Bobby” Haydel, Jr., to deduct the attorney’s fees from his monthly child support payment. For the following reasons, we affirm in part and reverse in part.

FACTS AND PROCEDURAL HISTORY

Appellant and appellee had one child together, a son. On July 15, 2005 Dr. Haydel filed a “Petition to Establish Custody and Visitation” and on August 26, 2005 the parties entered into a consent judgment which provided that Dr. Haydel was to be granted reasonable visitation with his son, as follows:

a. First six (6) months:
1. Every Thursday from 4:00 p.m. to 7:00 p.m.
2. Every other weekend: Friday from 4:00 p.m. to 7:00 p.m. and Saturday from 4:00 p.m. to 7:00 p.m.
b. After first six (6) months:
1. Every Thursday from 4:00 p.m. to 7:00 p.m.
2.Every other weekend from Friday at 4:00 p.m. to Sunday at 4:00 p.m.

On April 4, 2006 Dr. Haydel filed a motion with the court requesting that the visitation arrangement be modified to allow him seven consecutive days in the summer with his minor son. A hearing on the motion was held on May 26, 2006. At that time the parties entered into a consent judgment that was signed on July 7, 2006, ordering that Dr. Haydel was to “have visitation with the child for four nonconsecutive weeks during the period of | sJune 2006 through August 2006.” Specifically, the judgment held “the visitations will be had the weeks of June 5-11, 2006, July 3-9, 2006, July 17-23, 2006 and July 31-August 6, 2006.” A “Joint Custody Implementation Plan” was also filed. The custody plan was signed by both parties and their respective attorneys and stated, in pertinent part, that:

neither parent shall attempt or condone the attempt, directly or indirectly, by any artifice or subterfuge whatsoever, to estrange the minor child from the affections of the other party, or to injure or impair the mutual love and affection of either parent with the child. At all times the parents shall encourage and foster in the child sincere respect and affections for both parents, and neither parent shall hamper the natural development of the child’s love and respect for the other parent.

Subsequent to the July judgment and custody plan, Dr. Haydel filed two motions for contempt. Dr. Haydel accused Ms. Pellegrin of contempt in the following instances:

1. In denying him visitation with the minor child on all holidays in 2004 and on New Years, Mardi Gras, Labor Day, 4th of July, Halloween, and Thanksgiving in 2005; and also in denying him the special visitation of July 3, 2006 through July 9, 2006 ordered by the July 7, 2006 judgment;
2. In wrongfully refusing to allow his employees to pick up the child on one occasion;
3. In prematurely leaving the designated drop-off place on one occasion;
4. In wrongfully attempting to pick the child up from daycare on September 6, 2006, his scheduled day for visitation; and
5. In openly alienating the affections of his son to him at a soccer game on September 23, 2006.

[4A hearing on the contempt motions was held on November 9, 2006. The trial court found Ms. Pellegrin in contempt in two instances. Specifically, the trial court found Ms. Pellegrin in contempt of court for: 1) her failure to allow the visitation of July 3, 2006 through July 9, 2006, and 2) her open alienation of affections of the child from Dr. Haydel at the September soccer game. The court ordered Ms. Pel-legrin to serve 10 days in the Terrebonne Parish jail, which was suspended on the condition that Ms. Pellegrin not further violate the court’s orders. Ms. Pellegrin was further ordered to pay $500.00 in attorney’s fees as well as all court costs associated with the two contempt motions. The court authorized the fees to be deducted from Dr. Haydel’s payment of child support.

Ms. Pellegrin appeals, raising two assignments of error:

1. The trial court erred in finding her in contempt of court.
2. The trial court erred in ordering Dr. Haydel to deduct $500.00 in attorney’s fees from a payment of child support.

LAW AND ANALYSIS

In the first assignment of error, Ms. Pellegrin alleges that the trial court erred in finding her in contempt of court. Although Ms. Pellegrin argues that the incident at the soccer game did not amount to contempt, Ms. Pellegrin is silent as to whether the court erred in finding that her failure to allow the July visitation was contumacious.

Contempt of court is defined in LSA-C.C.P. art. 221 as “any act or omission tending to obstruct or interfere with the orderly administration of justice, or to impair the dignity of the court or respect for its authority.” There are two types of contempt. A direct contempt is defined in LSA-C.C.P. art. 222 as “one committed in the immediate view and presence of the court and of which it has personal knowledge, or a contumacious failure to |ficomply with a subpoena or summons, proof of service of which appears of record.” A constructive contempt of court is defined in LSA-C.C.P. art. 224 as “any contempt other than a direct one.” In order to find a person guilty of constructive contempt, it is necessary to find that he or she violated the order of the court intentionally, knowingly, and purposely, without justifiable excuse. Barry v. McDaniel, 2005-2455 (La.App. 1 Cir. 3/24/06), 934 So.2d 69, 73. The trial court is vested with great discretion in determining whether a party should be held in contempt of court and its decision will be reversed only when the appellate court discerns a clear abuse of that great discretion. Barry, 934 So.2d at 73.

In this case, after hearing all of the testimony and reviewing the evidence, the trial court found that Ms. Pellegrin violated both the July 7, 2006 judgment and the custody plan.

Regarding the first act of contempt, Dr. Haydel alleged that Ms. Pellegrin failed to allow the visitation of July 3, 2006 through July 9, 2006. Ms. Pellegrin’s testimony indicates that she indeed unilaterally changed the July visitation dates due to her own desires and personal situation. This action was in direct violation of the July 7, 2006 order of the court.

Regarding the second act of contempt, Dr. Haydel alleged that at a soccer game on September 23, 2006 Ms. Pellegrin acted in a way that alienated the affections of his minor child to him. Specifically, Dr. Hay-del alleged that Ms. Pellegrin publicly refused to allow him to speak to his son even though his son was calling to him. Ms. Pellegrin alleged that her actions were a result of Dr. Haydel’s “loud and obnoxious” behavior. When questioned, however, Ms. Pellegrin could not give to the trial court any specific instances of obnoxious or inappropriate behavior by Dr. Haydel. | fiBased on the testimony, the trial court concluded this action was in violation of the custody plan.

After a thorough review of the record, we cannot determine that the trial court abused its vast discretion in finding Ms. Pellegrin’s actions in both instances were contumacious. Ms. Pellegrin’s first assignment of error is without merit.

In the second assignment of error, Ms. Pellegrin alleges that the trial court erred in allowing Dr. Haydel to deduct the $500.00 attorney’s fee assessment from his child support payment. Although child support payments are considered the property of the spouse to whom they are paid, Larsen v. Larsen, 583 So.2d 854, 856 (La.App. 1 Cir.), writ denied, 590 So.2d 63 (La.1991), it has also been established that child support payments are for the benefit of the child, even though the payments are directed to be paid to the parent or other custodian. Lamkin v. Flanagan, 37,911 (La.App. 2 Cir. 1/28/04), 865 So.2d 916, 920, writ denied, 2004-0808 (La.6/4/04), 876 So.2d 89. Because it cannot benefit the child to decrease the amount paid to the mother for his support by allowing credits or offsets against the amount payable, we find that it was not within the trial court’s discretion to authorize Dr. Haydel to deduct Ms. Pellegrin’s debt from a payment he owed for the benefit of his child. We therefore find Ms. Pelleg-rin’s second assignment of error has merit.

CONCLUSION

The decision of the trial court is affirmed in part and reversed in part. We affirm the finding of contempt and the award of attorney’s fees from Ms. Pelleg-rin to Dr. Haydel. We reverse that portion of the judgment allowing |7Pr. Haydel to deduct said attorney’s fees from his child support obligation. Costs of this appeal are to be divided equally between the parties.

AFFIRMED IN PART AND REVERSED IN PART.

      . We note also that the child support obligation herein was pursuant to an income assignment order rendered in a separate proceeding.

      . Although Dr. Haydel requests this court to award attorney’s fees incurred to "answer” this appeal, no answer was hied in response to the appeal as required by LSA-C.C.P. art. 2133.