author: GUIDRY, J.

text:
    Troy BENOIT v. Tammy Williams BENOIT.
    No. 2011 CA 0376.
    Court of Appeal of Louisiana, First Circuit.
    March 8, 2012.
    Rehearing Denied May 4, 2012.

      Elisabeth W. Ramirez, Covington, LA, for Defendant/Appellant Tammy Williams Benoit.
    Marynell L. Piglia, New Orleans, LA, for Plaintiff/2nd Appellant Troy Benoit.
    Before WHIPPLE, KUHN, and GUIDRY, JJ.
   GUIDRY, J.

12This appeal arises from a trial court judgment partitioning the community of acquets and gains formerly existing between Troy Benoit and Tammy Williams Benoit. For the reasons that follow, we vacate the judgment of the trial court.

FACTS AND PROCEDURAL HISTORY

Troy and Tammy Benoit were married on December 31, 2000. This was Troy and Tammy’s second marriage to one another. On March 8, 2006, Troy filed a petition for La. C.C. art. 102 divorce. In his petition, Troy sought, among other things, partition of the community of acquets and gains in accordance with La. R.S. 9:2801. Tammy filed an answer and reconventional demand also seeking partition of community property. A final judgment of divorce was subsequently rendered on December 15, 2006.

On January 14, 2008, Tammy filed a detailed descriptive list of assets and liabilities of the community. Troy filed a sworn detailed descriptive list on April 14, 2008 and filed an amended detailed descriptive list on August 6, 2008. Thereafter, Troy and Tammy filed a combined detailed descriptive list on October 28, 2009.

A trial of the community property partition was held on January 5, 2010. Prior to the presentation of evidence, Troy and Tammy stipulated as to the classification, allocation, and/or valuation of certain assets, liabilities, and claims for reimbursement. Following a trial on the remaining contested issues, the trial court issued reasons for judgment on February 8, 2010, and signed a judgment on April 8, 2010, partitioning the community of acquets and gains. Tammy and Troy both filed motions for new trial, which were denied. Tammy and Troy now separately appeal from the trial court’s April 8, 2010 judgment.

|sDISCUSSION

Legal Principles and Standard of Review

The provisions of La. R.S. 9:2801 set forth the procedure by which community property is to be partitioned when the spouses are unable to agree on a partition of community property. La. R.S. 9:2801 A; Hoover v. Hoover, 10-1245, p. 3 (La. App. 1st Cir.3/17/11), 62 So.3d 765, 767. Particularly, La. R.S. 9:2801 A(4) provides, in pertinent part:

A. When the spouses are unable to agree on a partition of community property or on the settlement of the claims between the spouses arising either from the matrimonial regime, or from the co-ownership of former community property following termination of the matrimonial regime, either spouse, as an incident of the action that would result in a termination of the matrimonial regime or upon termination of the matrimonial regime or thereafter, may institute a proceeding, which shall be conducted in accordance with the following rules:
(4) The court shall then partition the community in accordance with the following rules:
(a) The court shall value the assets as of the time of trial on the merits, determine the liabilities, and adjudicate the claims of the parties.
(b) The court shall divide the community assets and liabilities so that each spouse receives property of an equal net value.
(c) The court shall allocate or assign to the respective spouses all of the community assets and liabilities. In allocating assets and liabilities, the court may divide a particular asset or liability equally or unequally or may allocate it in its entirety to one of the spouses. The court shall consider the nature and source of the asset or liability, the economic condition of each spouse, and any other circumstances that the court deems relevant. As between the spouses, the allocation of a liability to a spouse obligates that spouse to extinguish that liability. The allocation in no way affects the rights of creditors.
(d) In the event that the allocation of assets and liabilities results in an unequal net distribution, the court shall order the payment of an equalizing sum of money, either cash or deferred, secured or unsecured, upon such terms and conditions as the court shall direct. The court may order the execution of notes, mortgages, or other documents as it deems necessary, or may impose a mortgage or lien on either community or separate property, movable or immovable, as security.

It is well settled that a trial court has broad discretion in adjudicating issues raised by divorce and partition of the community. A trial judge is afforded a great |4deal of latitude in arriving at an equitable distribution of the assets between the spouses. Factual findings and credibility determinations made in the course of valuing and allocating assets and liabilities in the partition of community property may not be set aside absent manifest error. Clemons v. Clemons, 42,129, p. 3 (La.App. 2nd Cir.5/9/07), 960 So.2d 1068, 1071, writ denied, 07-1652 (La.10/26/07), 966 So.2d 583. However, the allocation or assigning of assets and liabilities in the partition of community property is reviewed under the abuse of discretion standard. Legaux-Barrow v. Barrow, 08-530, p. 5 (La.App. 5th Cir.1/27/09), 8 So.3d 87, 90, writ not considered, 09-0447 (La.4/13/09), 5 So.3d 152.

Allocation of Property Located at 1181 Clipper Drive

Tammy asserts that the trial court erred in allocating the family home located at 1181 Clipper Drive, Slidell, Louisiana, to Troy pursuant to the provisions of La. R.S. 9:2801, because the home was not community property, but was eo-owned property, having been acquired by the parties prior to their marriage.

Though originally listed on the parties’ combined detailed descriptive list as a community asset, the documentary evidence and testimony admitted at the partition proceeding demonstrates that the property was actually purchased by Troy and Tammy ten days prior to their second marriage. The parties do not dispute that based on this evidence, the home is not community property, but rather, is co-owned by the parties in indivisión. Accordingly, the partition of this piece of property is governed by the articles of the Civil Code concerning ownership of property in indivisión, La. C.C. arts. 707-818, not by La. R.S. 9:2801.

Louisiana Civil Code article 797 provides “[ojwnership of the same thing by two or more persons is ownership in indivisión. In the absence of other provisions of law or juridical act, the shares of all co-owners are presumed to be equal.” Any co-owner has a right to demand partition of a thing held in indivisión. La. C.C. art. 807. The mode of partition may be determined by agreement of all the co-owners, in the |,r,absence of which a co-owner may demand judicial partition. La. C.C. art. 809. Louisiana Civil Code article 810 requires the court to partition in kind when the thing held in indivisión is susceptible to division into as many lots of nearly equal value as there are shares and the aggregate value of all lots is not significantly lower than the value of the property in the state of indivisión. La. C.C. art. 810. When the thing held in indivisión is not susceptible to partition in kind, the court shall decree a partition by licitation or by private sale, and the proceeds shall be distributed to the co-owners in proportion to their shares. La. C.C. art. 811.

Therefore, because the family home located at 1181 Clipper Drive is not susceptible to division into lots, the home has to be sold, and the proceeds distributed equally between Troy and Tammy.

Value of Homeowner’s Insurance Proceeds

Tammy next asserts that the trial court erred in valuing the amount of homeowner’s insurance proceeds received by Troy for damage to the family home as a result of Hurricane Katrina. Prior to the presentation of evidence at the community property partition proceeding, the parties stipulated that the value of the insurance proceeds was $170,577.62. Both Troy and Tammy testified that two insurance payments, one for $25,000.00 and one for $55,100.00, had already been divided between them. Accordingly, the trial court, in valuing this asset, deducted these amounts from the total amount stipulated to between the parties. Because Troy failed to provide an accounting of the insurance proceeds prior to trial, and because the evidence does not conclusively establish that these two payments were excluded in arriving at the stipulated value of the insurance proceeds, we find the trial court’s valuation of this community asset to be reasonably supported by the record and does not constitute an abuse of discretion. See Rao v. Rao, 05-0059, p. 6 (La. App. 1st Cir.11/4/05), 927 So.2d 356, 360-361, writ denied, 05-2453 (La.3/24/06), 925 So.2d 1232.

Reimbursement Claims in Favor of Troy

Tammy asserts that Troy is not entitled to reimbursement for his payment of several community obligations during the existence of the community, including the first and second mortgages on the family home, property taxes, income taxes, and a truck note, because these obligations were paid with community, and not his separate funds. Louisiana Civil Code article- 2365 provides, in part:

If separate property of a spouse has been used either during the existence of the community property regime or thereafter to satisfy a community obligation, that spouse is entitled to reimbursement for one-half of the amount or value that the property had at the time is was used.

Property of married persons is generally characterized as either separate or community. La. C.C. art. 2385. Louisiana Civil Code article 2338 provides:

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

Regarding the classification of property as separate, La. C.C. art. 2341 provides, in part, that a spouse’s separate estate “comprises ... property .acquired by a spouse prior to the establishment of a community property regime [and] property acquired by a spouse with separate things or with separate and community things when the value of the community thing is inconsequential in comparison with the value of the separate things used.”

Property in the possession of a spouse during the existence of the community property regime is presumed to be community, but either spouse may rebut the presumption. La. C.C. art. 2340. The spouse seeking to rebut the presumption bears the burden of proving by a preponderance of the evidence that property is separate in |7nature. Hoover, 10-1245 at p. 7, 62 So.3d at 770. A trial court’s finding regarding the nature of property as being either community or separate is a factual determination subject to the manifest error/clearly wrong standard of review. Corkern v. Corkern, 05-2297, p. 6 (La.App. 1st Cir.11/3/06), 950 So.2d 780, 785, writ denied, 06-2844 (La.2/2/07), 948 So.2d 1083.

At the partition hearing, the parties testified that subsequent to their first marriage, but prior to their second marriage, Troy received settlement funds as a result of a motorcycle accident he had during the first marriage, which had rendered him a paraplegic. Troy deposited these funds into an investment account with Merrill-Lynch, and subsequently with Smith-Barney and Raymond James. These accounts generated interest and dividends, which were placed into a joint checking account bearing Troy’s and Tammy’s names, which was attached to Troy’s investment accounts. The parties stipulated that the interest and dividends generated from these separate investment accounts during the existence of the community totaled $119,859.00. Bank records admitted into evidence at the hearing reflect that expenses of the parties, including community obligations, were paid out of the joint checking account.

From our review of the record, it is evident that the community obligations exceeded the value of the interest and dividends placed into the joint checking account. The stipulated amounts paid during the second marriage for the first mortgage, homeowner’s insurance, income taxes, and property taxes totaled $113,364.00. Additionally, during the marriage $1,049.00 was paid on the second mortgage and $1,986.00 was paid on the note for Troy’s truck. These community obligations, alone, total $116,399.00. Further, the parties do not dispute that additional community obligations were paid from the checking account, including the |RCapital One line of credit, credit cards, and expenses for the management of the investment accounts, which generated the interest and dividends.

Additionally, Troy’s testimony and the testimony of Kurt Arcement, manager of Troy’s investment accounts for over ten years, indicated that additional funds necessary to cover expenditures of the parties were automatically transferred into the joint checking account from the separate investment accounts. For the years 2002-2005, between $49,296.00 and $63,017.00 in separate funds were deposited annually into the joint checking account to cover additional expenditures.

Tammy asserts because separate funds were commingled with community funds, all funds in the joint checking account became community. However, in the instant case, the separate funds were not mixed with community funds such that they are no longer capable of identification, and the amount of separate funds deposited into the account far exceeds the amount of interest and dividends deposited into the account. See Granger v. Granger, 98-429, p. 6 (La.App. 3rd Cir.12/9/98), 722 So.2d 107, 111; see also La. C.C. art. 2341. Further, looking at the figures stipulated to or admitted into evidence regarding the community obligations paid out of the joint checking account, the amount of interest and dividends was insufficient to cover those expenditures. Accordingly, we cannot say that the trial court erred in finding that separate funds were used during the community to pay the first and second mortgages on the family home, homeowner’s insurance, income taxes, property taxes, and Troy’s truck note, and in awarding Troy reimbursement for one-half of those payments,

| ⅜Allocation of Interest and Dividends to Troy

Tammy asserts that the trial court erred in allocating to Troy the interest and dividends generated on Troy’s separate investment accounts during the community, offset by the amount paid to Mr. Arcement for management of the separate and community property in the accounts, because these were not an asset or an obligation of the community in existence at the time of trial.

In’ her reasons for judgment, the trial court found that the value of the Smith Barney checking account was $119,859.00, less the management fees of $41,666.00 charged by Mr. Arcement. However, we find that the trial court’s factual finding is not reasonably supported by the record. The parties stipulated pri- or to the hearing that the amount of interest and dividends generated during the existence of the community on Troy’s separate property totaled $119,859.00. The parties did not, however, stipulate that this was the value of that account, nor is there any evidence in the record to support that this was the value of this asset at the time of trial. See La. R.S. 9:2801 A(4)(a).

According to the evidence introduced at the hearing, the interest and dividends deposited into the checking account were depleted during the community such that additional separate funds had to be deposited into the account to cover expenditures. Additionally, the fees charged by Mr. Arcement for management of Troy’s accounts were paid each quarter, and were not shown to be a debt owed by the community at the time of trial. Therefore, from our review of the record, the trial court erred in finding that the amount of interest and dividends generated during the community was an existing asset of the community at the time of trial, and likewise erred in finding that the management fees charged by Mr. Arcement were a debt owed by the community at the time of trial. Accordingly, the trial court abused its discretion in allocating the amount of interest and dividends generated during the community, less an amount for management fees charged by Mr. Arcement, to Troy.

| Allocation and Valuation of Capital One Line of Credit

Tammy next argues that the trial court erroneously allocated an obligation in the amount of $81,161.99 to her, representing an amount allegedly due on a Capital One line of credit obtained on behalf of TAT, Real Estate, L.L.C., and guaranteed by Troy and Joseph Lamy.

During the marriage, Troy and Tammy formed TAT Real Estate, L.L.C. The original members were Troy, Tammy, and Tammy’s brother. However, Joseph “Bubby” Lamy, Troy’s good friend and Tammy’s current husband, was substituted for Tammy’s brother as a member of the LLC. In April 2005, TAT Real Estate purchased real property at 792 Pine Tree Street, Slidell, Louisiana, which was financed by a second mortgage on the Clipper Drive property. TAT Real Estate bought the Pine Tree property with the intention of making repairs to the home and “flip[ping] it.” Thereafter, Troy and Mr. Lamy made repairs to the home, which were financed by a line of credit with Capital One. After the Pine' Tree property was fully repaired, it sustained significant damage from Hurricane Katrina. Because there was no insurance on this property, Troy made draws on the line of credit to make needed repairs.

The parties do not dispute that the line of credit was originally obtained during the existence of the community. Rather, Tammy asserts that the trial court erred in allocating to her an obligation in the amount of $81,161.99, which represented amounts drawn on the line of credit subsequent to the termination of the community.

An obligation incurred by a spouse during the existence of a community property regime for the common interest of the spouses is a community obligation. La. C.C. art. 2360. However, an obligation incurred by a spouse prior to the establishment or after termination of a community property regime is a separate obligation. See La. C.C. art. 2363 and 1979 Revision Comment (a).

In Troy admitted that he made draws on the line of credit subsequent to the termination of the community in order to make repairs to the Pine Tree property following Hurricane Katrina. Troy, nevertheless, argues that the additional indebtedness is attributable to the community, because he had a duty to preserve and prudently manage former community property under his control.

Louisiana Civil Code article 2369.3 provides, in part, that a “spouse has a duty to preserve and to manage prudently former community property under his control ... in a manner consistent with the mode of use of that property immediately prior to termination of the community regime.” Article 2369.3, however, is usually addressed when a former spouse asserts a claim for compensation due to the breach of this article concerning management of a community business, or when a former spouse asserts a claim for reimbursement for one-half of the expenses incurred in compliance with the obligation imposed by this article. See La. C.C. art. 2369.3, 1995 Comment (f); see also Knighten v. Knighten, 00-1662, pp. 3-5 (La.App. 1st Cir.9/28/01), 809 So.2d 324, 328-329, writ denied, 01-2846 (La.1/4/02), 805 So.2d 207; Clemons, 42,129 at p. 6, 960 So.2d at 1073. Contrary to Troy’s argument on appeal, we do not find that this article applies to the classification of an obligation as community or separate or to the valuation of that asset or liability. Rather, those determinations are controlled by La. C.C. arts. 2359-2363 and La. R.S. 9:2801 A(4).

1 ^Therefore, because Troy admitted that he made draws on the line of credit subsequent to the termination of the community, the trial court erred in finding that the amount of the community obligation for the Capital One line of credit was $31,161.99. Rather, the evidence in the record establishes that at the time of the termination of the community, the Capital One line of credit had a balance of $3,836.10. Accordingly, that is the amount on the Capital One line of credit for which the community is liable. Furthermore, because of the nature of this debt, we find that the obligation should be allocated to Troy. See La. R.S. 9:2801 A(4)(c).

Reimbursement for Payments Made on Capital One Line of Credit

Tammy also contends that the trial court erred in recognizing a reimbursement claim in favor of Troy and against her in the amount of $6,161.50, representing one-half of the alleged payments made by Troy on the Capital One line of credit after the termination of the community. As stated above, the majority of the outstanding debt obligation on the Capital One line of credit was incurred by Troy subsequent to the termination of the community. As of the termination date of the community, the balance on the line of credit was $3,836.10. Because Troy is only entitled to reimbursement for one-half of his separate property that was used to satisfy the community obligation, he is only entitled to reimbursement for one-half of the balance owed on the line of credit as of the date of termination of the community, or $1,918.05. See La. C.C. art. 2365.

Reimbursement Funds Used to Purchase Nissan Maxima

Tammy asserts that the trial court erred in recognizing a claim for reimbursement made by Troy for one-half of separate funds allegedly used to purchase a Nissan Maxima. In its reasons for judgment, the trial court stated that “[i]t |1sis undisputed that the Maxima was purchased during the marriage with [h]us-band’s separate funds.” However, according to the record, both Troy and Tammy testified that Troy purchased the Maxima with funds he received from his personal injury settlement prior to their second marriage, though the Maxima was titled in both of their names. Accordingly, because the vehicle is not community property, but is co-owned property or separate property acquired prior to the marriage, Troy is not entitled to reimbursement for separate funds used to purchase the vehicle. See La. C.C. arts. 2365 and 2367.

Reimbursement for Credit Card Expenditures

The trial court awarded Troy $10,524.00 in reimbursement, representing one-half of expenditures made by Tammy on Discover, Chase Visa, and Citi Dividend Platinum credit cards during the existence of the community. Tammy does not dispute that she used these credit cards during the existence of the community for the benefit of the community. However, she asserts that the funds used to pay the credit card charges were community funds, and therefore, Troy is not entitled to reimbursement for payment of the community obligation with community funds. See La. C.C. art. 2365.

This argument is identical to the argument raised with regard to the reimbursement awarded to Troy for payment of the first and second mortgages on the family home, income taxes, property taxes, and truck note. For the reasons previously discussed, we find no error in the trial court’s determination that the credit card debt is a community obligation that was paid with separate funds, for which Troy is entitled to reimbursement.

Recognition and/or Value of Community Obligation to Capital One Visa

The trial court found that a community obligation in the amount of $4,168.85 was owed to Capital One Visa for the account ending in 237. However, from our review of the record, we find no evidence to support this conclusion. Exhibit 20 114offered into evidence by Troy at the partition proceeding contains statements from May 2006, which is two months after the termination of the community of ac-quets and gains, through the date of trial. Further, the May 2006 statement indicates that the previous balance on the account was $0. Therefore, because the record is devoid of evidence that an obligation to Capital One Visa existed during the community property regime, the trial court erred in allocating this obligation, in the amount of $4,168.85, to Troy.

Reimbursement for Post-Termination Payments to CLECO

Tammy asserts that the trial court erred in recognizing a reimbursement claim in favor of Troy for one-half of the amounts paid to CLECO for service provided to the Pine Tree property after the termination of the community. Troy argues that the CLECO bills are a community obligation, which he- paid with separate funds, and therefore, he is entitled to reimbursement under La. C.C. art. 2365. However, Troy admits that the charges for which he seeks reimbursement were not incurred during the community, but were incurred after the termination of the community. Accordingly, this indebtedness is a separate obligation, paid with separate funds. See La. C.C. art. 2363 and 1979 Revision Comment (a). For the reasons previously stated with regard to the allocation and valuation of the-Capital One line of credit and reimbursement awarded to Troy for payments made on the line of credit, we find that the trial court erred in awarding Troy reimbursement for one-half of the amounts paid to CLECO after the termination of the community.

Reimbursement for Post-Termination Payments on Community Automobile

Troy asserts that the trial court erred in denying his claim for reimbursement for payments made on a community automobile following the termination of the community with separate funds.

Louisiana Civil Code article 2365 currently provides, in pertinent part:

If separate property of a spouse has been used either during the existence of the community property regime or thereafter to satisfy a | ^community obligation, that spouse is entitled to reimbursement for one-half of the amount or value that the property had at the time it was used.
If the community obligation was incurred to acquire ownership or use of a community corporeal movable required by law to be registered, and separate property of a spouse has been used after termination to satisfy that obligation, the reimbursement claim shall be reduced in proportion to the value of the claimant’s use after termination of the community property regime. The value of that use and the amount of the claim for reimbursement accrued during the use are presumed to be equal.

Article 2365 was amended by Acts 2009, No. 204, § 1, which added the second paragraph regarding registered community corporeal movables. Prior to the 2009 amendment, Article 2365 provided, in pertinent part:

If separate property of a spouse has been used to satisfy a community obligation, that spouse, upon termination of the community property regime, is entitled to reimbursement for one-half of the amount or value that the property had at the time it was used. The liability of a spouse who owes reimbursement is limited to the value of his share in the community after deduction of all community obligations.

Troy asserts that the amended version of La. C.C. art. 2365 was not in effect during the period for which he seeks reimbursement, ie. March 2006 through 2009; and during that period, the jurisprudence in this circuit allowed these types of reimbursement claims. See Williams v. Williams, 509 So.2d 77 (La.App. 1st Cir. 1987). Further, Troy asserts because the 2009 amendment to La. C.C. art. 2365 represents a substantive change in the law, it can be applied prospectively only. See La. C.C. art. 6.

In determining whether a newly-enacted provision is to be applied prospectively only, or may also be applied retroactively, La. C.C. art. 6 requires a two-fold inquiry. First, the court must determine whether the amendment to the statute expresses the legislative intent regarding retroactive or prospective application. Keith v. U.S. Fidelity and Guaranty Co., 96-2075, p. 6 (La.5/9/97), 694 So.2d 180, 183. If no such intent is expressed, the enactment must be classified as either substantive, procedural, or interpretative. Keith, 96-2075 at p. 6, 694 So.2d at 188.

|1fiIn enacting the amended version of Article 2865, the legislature did not express its intent regarding retroactive or prospective application. Therefore, we must determine whether the 2009 amendment was substantive or interpretive.

Substantive laws either establish new rules, rights, and duties or change existing ones. Interpretive laws, on the other hand, do not create new rules, but merely establish the meaning that the interpreted statute had from the time of its initial enactment. It is the original statute, not the interpretive one, that establishes the rights and duties. St. Paul Fire & Marine Insurance Co. v. Smith, 609 So.2d 809, 817 (La.1992). When an existing law is not clear, a subsequent statute clarifying or explaining the law may be regarded as interpretive, and the interpretive statute may be given retroactive effect because it does not change, but merely clarifies, pre-existing law. St. Paul Fire & Marine Insurance Co., 609 So.2d at 817.

As noted by the Louisiana Supreme Court, the suggested distinction between interpretive legislation “clarifying,” and substantive legislation “amending” or “changing,” existing law is an obscure one. There is no bright line between substantive laws, which change existing standards, and interpretive laws, which change existing standards by re-defining and returning to their ostensible “original” meaning. St. Paul Fire & Marine Insurance Co., 609 So.2d at 819.

The revision comments to Article 2365 state that the second paragraph of this Article is new and incorporates the substantial volume of Louisiana jurisprudence that has limited a spouse’s right to reimbursement for the use of separate funds after termination of the community property regime to satisfy a community note obligation for an automobile of which the claimant spouse has the exclusive use. La. C.C. art. 2365, 2009 Revision Comment (b). The First Circuit, however, did not follow the other four circuits in so limiting a spouse’s right to reimbursement, finding that the plain language of then Article 2365 did not provide a basis for treating reimbursement claims differently depending on the nature of the property for which 117the debt was paid. See Williams, 509 So.2d at 80. Additionally, 2009 Revision Comment (c) notes that the jurisprudence has previously reduced a spouse’s right to reimbursement without any authority in the Civil Code.

Because the original codal article did not distinguish reimbursement claims based on the nature of the property subject to the obligation, and it was not until the 2009 amendment that a claimant spouse’s right to reimbursement was reduced, or effectively eliminated, based on the nature of the property, we find that the 2009 amendment is substantive, in that it represents a distinct change in the rights of the parties. Under La. C.C. art. 6, a substantive change in the law cannot be applied retroactively.

Therefore, because Article 2365, as enacted prior to the 2009 amendment, did not limit a claimant spouse’s right to reimbursement for one-half of the payments made on a community vehicle after termination of the community, and this court applied the plain language of the statute as written, we find that the trial court erred in failing to award Troy reimbursement for one-half of the monthly notes paid on the community automobile from the time of the termination of the community until the effective date of the 2009 amendment, August 15, 2009. Accordingly, we reverse the trial court judg-merit on this issue and award Troy $6,796.50 in reimbursement for one-half of the truck note payments.

Reimbursement of Funds to Repair Clipper Drive Residence

Troy asserts that the trial court erred in denying his claim for reimbursement for separate funds used to repair the Clipper Drive home after Hurricane Katrina. In denying Troy’s reimbursement claim, the trial court found that Troy’s failure to timely file an accounting of the homeowner’s insurance proceeds, as required by two previous consent judgments, precluded him from introducing evidence accounting for funds used to make repairs to the residence.

| lsFirst, we reiterate that the Clipper Drive home is not community property but is co-owned by Troy and Tammy in indivi-sión. Accordingly, the Civil Code articles regarding co-ownership apply. Louisiana Civil Code article 806 provides:

A co-owner who on account of the thing held in indivisión has incurred necessary expenses, expenses for ordinary maintenance and repairs, or necessary management expenses paid to a third person, is entitled to reimbursement from the other co-owners in proportion to their shares.

Though Troy was precluded from introducing evidence at the community property partition proceeding of the repairs made to the Clipper Drive home following Hurricane Katrina, he did proffer receipts and pictures of the repairs. However, even considering the proffered evidence, we find that Troy failed to put forth sufficient evidence to establish a claim for reimbursement.

Troy testified that he made repairs to the Clipper Drive home, but he did not provide details as to the total repairs made, nor did he quantify the amount of funds used to make such repairs. Additionally, though the proffered evidence consists of photos of the repairs and numerous receipts, Troy admitted in his testimony that the proffered receipts were for repairs made to the Clipper Drive residence and the Pine Tree property. Troy, however, did not offer any testimony or evidence separating the expenses paid for repairs to the Clipper Drive home from those made to the Pine Tree Street property. Finally, when combined with the fact that Troy failed to provide a complete and detailed accounting of the homeowner’s insurance proceeds he received as required by two previous consent judgments, it is impossible for us to determine from the record before us what expenses were incurred in making the repairs to the Clipper Drive home or the amount thereof. Therefore, we find no error in the trial court’s denial of this reimbursement claim.

Reimbursement to Troy for Mortgage Payments on Clipper Drive Residence

Troy asserts that the trial court erred in valuing his claim for reimbursement for payments made on- the mortgage on 1181 Clipper Drive. Specifically, Troy contends 119that the trial court erred in reducing reimbursement for one-half of the mortgage payments based on the value of Troy’s enjoyment of the property under the Civil Code articles regarding co-ownership.

In accordance with La. C.C. art. 806, a co-owner who has incurred necessary expenses or maintenance and management expenses is entitled to reimbursement from the other co-owners, except that if he who incurred the expenses had the enjoyment of the thing, the reimbursement is to be reduced in proportion to the value of his enjoyment. A mortgage, however, is not such an expense. It is a nonpossessory right created over property to secure the performance of an obligation. Lupberger v. Lupberger, 00-2571, p. 11 (La.App. 4th Cir.12/5/01), 805 So.2d 264, 271, writ denied, 02-0653 (La.5/24/02), 816 So.2d 308; Roque v. Tate, 93-389, p. 3 (La.App. 5th Cir.2/9/94), 631 So.2d 1385, 1386, writ not considered, 94-0625 (La.4/29/94), 637 So.2d 457; see also La. C.C. art. 3278.

Furthermore, though the property itself was co-owned by the parties in indi-visión, the mortgage at issue was incurred by the spouses during the existence of the community and as such, it is presumed to be a community obligation. See La. C.C. arts. 2360 and 2361. Troy and Tammy do not dispute that the mortgage on the Clipper Drive home is a community obligation. Therefore, the controlling law is not the Civil Code articles relating to co-ownership of property, but La. C.C. art. 2365, regarding reimbursement for satisfaction of a community obligation with separate property. See Lupberger, 00-2571 at p. 11, 805 So.2d at 271. Accordingly, the trial court erred in applying La. C.C. art. 806 to reduce Troy’s reimbursement claim.

Tammy, however, asserts that even if the trial court erred in reducing Troy’s mortgage reimbursement claim based on the value of Troy’s enjoyment of the property under La. C.C. art. 806, which the trial court determined to be the rental value of the property, it was still correct in deducting the rental value of the property under La. R.S. 9:374.

| gpLouisiana Revised Statute 9:374 provided, in part:

B. When the family residence is community property or the spouses own community movables or immovables, after or in conjunction with the filing of a petition for divorce or for separation of property in accordance with Civil Code Article 2374, either spouse may petition for, and a court may award to one of the spouses, after a contradictory hearing, the use and occupancy of the family residence and use of community movables or immovables to either of the spouses pending further order of the court. In these cases, the court shall inquire into the relative economic status of the spouses, including both community and separate property, and the needs of the children, if any, and shall award the use and occupancy of the family residence and the use of any community movables or immovables to the spouse in accordance with the best interest of the family. If applicable, the court shall consider the granting of the occupancy of the family home and the use of community movables or immovables in awarding spousal support.
C. A spouse who uses and occupies or is awarded by the court the use and occupancy of the family residence pending either the termination of the marriage or the partition of the community property in accordance with the provisions of La. R.S. 9:374(A) or (B) shall not be liable to the other spouse for rental for the use and occupancy, except as thereafter provided. If the court awards use and occupancy to a spouse, it shall at that time determine whether or not to award rental for the use and occupancy and, if so, the amount of the rent. The parties may agree to defer the rental issue for decision in the partition proceedings. If the parties agreed at the time of the award of use and occupancy to defer the rental issue, the court may make an award of rental retroactive to the date of the award of use and occupancy. [Emphasis added.]

Assuming, arguendo, that Tammy has a claim for rental reimbursement for Troy’s use and occupancy of the family residence that was co-owned, and not community property, we find that she failed to preserve this claim under the provisions of La. R.S. 9:374(C).

In her answer and reconventional demand to the petition for 102 divorce filed by Troy, Tammy sought use and occupancy of the family home, and alternatively, requested the assessment of a rental value for Troy’s exclusive use of the home. By consent judgment dated August 17, 2006, the trial court ordered:

[T]hat the motions filed on behalf of Troy Benoit and Tammy Williams Be-noit for exclusive use and occupancy of the family home shall be continued indefinitely. Tammy Williams Benoit’s rule for rental value assessment against Troy Benoit should the Court award exclusive use and occupancy of the family home to Troy Benoit shall be reserved to her and to be determined at the time of the partition of the community property. [Emphasis added.]

However, the exclusive use and occupancy of the family home was never awarded to Troy by the court. Rather, Tammy testified at the hearing that she did not pursue her claim for exclusive use and occupancy of the family home, because following Hurricane Katrina, Troy had no where else to go and she did not want to “put Troy on the street.” Further, though Tammy stated that there was an agreement to allow Troy to remain in the family home, because she had other living arrangements, this agreement was never reduced to judgment, nor is there evidence |athat at the time the parties allegedly made an agreement regarding use and occupancy of the family home they also agreed to defer the rental issue.

From our review of the record, and based on the clear language of the August 17, 2006 consent judgment, we do not find that the parties contemporaneously agreed at the time of the award of use and occupancy of the family home to defer the rental issue as required by La. R.S. 9:374(C). As such, Troy is not liable to Tammy for rental for his use and occupancy under La. R.S. 9:374.

Therefore, based on the foregoing, we find that the trial court abused its discretion in offsetting the amount of reimbursement owed to Troy for payments made on the mortgage on 1181 Clipper Drive by the rental value of the property. Accordingly, we find that Troy is entitled to reimbursement for one-half of the total mortgage payments made during the community and up to the time of trial in the amount of $67,802.50.

Deferral and Security of Equalization Payment

Finally, Troy asserts that the trial court erred in permitting Tammy eighteen months to make the equalizing cash payment without proper security. According to La. R.S. 9:2801 A(4)(d), in the event that the allocation of assets and liabilities results in an unequal net distribution, the court shall order the payment of an equalizing sum of money, either cash or deferred, secured or unsecured, upon such terms and conditions as the court may direct. Further, the court may order the execution of notes, mortgages, or other documents as it deems necessary, or may impose a mortgage or lien on either community or separate property, movable or immovable, as security. La. R.S. 9:2801 A(4)(d). Accordingly, a trial court is only required to order the payment of an equalizing sum of money. The determinations of whether that sum should be cash or deferred, secured or unsecured and what terms and conditions, if any, should be applied to the payment are left to the discretion of the | ^trial court. See Trahan v. Trahan, 10-0109, p. 7 (La.App. 1st Cir.6/11/10), 43 So.3d 218, 224, writ denied, 10-2014 (La.11/12/10), 49 So.3d 889.

In its judgment, the trial court ordered that “Tammy Williams Benoit shall pay to Troy Benoit an equalizing cash payment of $21,993.18, which equalizing cash payment shall act as a mortgage on 792 Pine Street, Slidell, Louisiana until paid. The equalizing cash payment shall accrue legal interest until paid. Tammy Williams Benoit shall have eighteen (18) months to remit the equalizing payment to Troy Benoit.” However, based on the findings of this court, Tammy’s equalizing cash payment has drastically increased. Therefore, given the circumstances, this matter should be remanded to the trial court for reconsideration.

CONCLUSION

For the above and foregoing reasons, we vacate the trial court’s judgment of partition and remand this matter to the trial court to enter a new judgment in conformity with the findings of this court and to fashion a repayment plan under such terms and conditions as the trial court deems appropriate.

JUDGMENT VACATED AND REMANDED WITH INSTRUCTIONS.

      . We note that neither Tammy nor Troy dispute the trial court’s determination that the insurance proceeds áre an asset of the community.

      . There were additional community obligations paid during the existence of the community, for which Troy sought or was awarded reimbursement. These awards are either not at issue on appeal, or are raised by Tammy as additional issues in the appeal.

      . Mr. Arcement deducted fees charged for his management of the investment accounts from the annual totals for interest and dividend income. Although Tammy contests the allocation of the total amount of these fees, stipulated to be $41,666.00 during the existence of the community, to Troy as a community debt existing at the time of trial, which argument is addressed below, she does not assert that the fees paid during the marriage were not a community obligation.

      . Louisiana Civil Code article 2363 was amended in 2009 to remove the last sentence of the first undesignated paragraph, which had read: "An obligation incurred after termination of a community property regime ... is a separate obligation.” However, comment (a) of the 2009 Revision Comments to Article 2363 clarified that the classification under the former article was removed as being conceptually flawed, because once the community regime has terminated, an obligation incurred by a spouse is neither separate nor community, and it has no impact upon the community property regime.

      . Troy cites Clemons as support for his argument that an obligation incurred after the community's termination, when it is made in furtherance of a party's obligation under La C.C. art. 2369.3, is nonetheless a community obligation. However, in Clemons, the Second Circuit Court of Appeal found that a spouse's conversion of a line of credit into a permanent loan and the subsequent refinancing of that loan did not change the nature or origin of the duty to repay and the debt remained a community obligation. Clemons, 42,129 at p. 6, 960 So.2d at 1073. Conversely, in the instant case, Troy changed the nature of the debt by incurring additional indebtedness by his post-termination draws on the line of credit. Therefore, Troy's argument is without merit.

      . We previously pointed out that under La. C.C. art. 2369.3, a spouse who incurs expenses in compliance with the obligation to preserve and prudently manage former community property is entitled to reimbursement for one-half of the costs in accordance with the general principles of laws of co-o’wnership. However, Troy did not formally raise this claim for reimbursement in the trial court, nor did he present evidence as to the actual expenses incurred in repairing the Pine Tree property or the costs associated therewith.

      . Louisiana Revised Statute 9:374 was amended by 2009 La. Acts 204, § 2, and now provides, in part:
      B. When the family residence is community property or is owned by the spouses in indivisión, or the spouses own community movables or immovables, after or in conjunction with the filing of a petition for divorce or for separation of property in accordance with Civil Code Article 2374, either spouse may petition for, and a court may award to one of the spouses, after a contradictory hearing, the use and occupancy of the family residence and use of community movables or immovables pending partition of the property or further order of the court, whichever occurs first. In these cases, the court shall inquire into the relative economic status of the spouses, including both community and separate property, and the needs of the children, if any, and shall award the use and occupancy of the family residence and the use of any community movables or immovables to the spouse in accordance with the best interest of the family. If applicable, the court shall consider the granting of the occupancy of the family residence and the use of community movables or immovables in awarding spousal support..
      C. A spouse who, in accordance with the provisions of Subsection A or B of this Section, uses and occupies or is awarded by the court the use and occupancy of the family residence, a community immovable occupied as a residence, or a community manufactured home as defined in R.S. 9:1149.2 and occupied as a residence, regardless of whether it has been immobilized, shall not be liable to the other spouse for rental for the use and occupancy, except as hereafter provided. If the court awards use and occupancy to a spouse, it shall at that time determine whether to award rental for the use and occupancy and, if so, the amount of the rent. The parties may agree to defer the rental issue for decision in the partition proceedings. If the parties agreed at the time of the award of use and occupancy to defer the rental issue, the court may make an award of rental retroactive to the date of the award of use and occupancy.

      . Prior to its amendment in 2009, La. R.S. 9:374(B) and (C) limited the liability of a spouse for rental for his use and occupancy of the family residence when the family residence is community property. As previously stated, the family residence in the instant case is not community property, but is owned by Troy and Tammy in indivisión. However, 2009 La. Acts 204, § 2 expanded La. R.S. 9:374(B) and (C) to apply to a family residence that is owned by the spouses in indivision. Because we find that Tammy failed to preserve the rental issue under the requirements of La. R.S. 9:374(C), which were the same before and after the 2009 amendment, we do not address the propriety of Tammy’s claim under La. R.S. 9:374, as such would require this court to determine the effect of the 2009 amendment, which is an issue not addressed by either party in the trial court or on appeal.

      . Recapitulation:
      Total Assets: $168,722.02
      Total Debts: $383,201.90
      Assets Allocated to Troy: $108,722.02
      Assets Allocated to Tammy: $ 60,000.00
      Debts Allocated to Troy: $365,970.86
      Debts Allocated to Tammy: $ 17,231.04
      Troy’s Reimbursement Claims: $139,985.99
      Tammy’s Reimbursement Claims: $ 15,000.00

        Formula for determining equalization payment:
      Husband Wife
      ½ Assets $ 84,361.01 $ 84,361.01
      ½ Debts-Troy + $182,985.43 -$182,985.43
      ½ Debts-Tammy -$ 8,615.52 + $ 8,615.52
      ½ Reimbursement-Troy + $ 69,993.00 -$ 69,993.00
      ½ Reimbursement-Tammy -$ 7,500.00 + $ 7,500.00
      Total $321,223.92 $152,501.90
      Less Assets Allocated $108,722.02 $ 60,000.00
      + $212,501.90 -$212,501.90


source: Caselaw Access Project

author: PARRO, J.

license: Public Domain

text:
    WEST BATON ROUGE PARISH REVENUE DEPARTMENT v. LOUISIANA MACHINERY RENTALS, L.L.C. West Baton Rouge Parish Revenue Department v. Louisiana Machinery Company, L.L.C.
    Nos. 2011 CA 0711, 2011 CA 0712.
    Court of Appeal of Louisiana, First Circuit.
    March 9, 2012.

      Robert R. Rainer, Drew M. Talbot, Rainer, Anding & McLindon, Baton Rouge, LA, for Plaintiff-Appellee West Baton Rouge Parish Revenue Department.
    Linda S. Akchin, Christopher J. Dichar-ry, Pamela R. Mascari, Phyllis D. Sims, Kean Miller LLP, Baton Rouge, LA, for Defendant-Appellant Louisiana Machinery Company, L.L.C.
    Before CARTER, C.J., PARRO, and HIGGINBOTHAM, JJ.
   PARRO, J.

| aLouisiana Machinery Company, LLC. (LMC) appeals a judgment granting a motion for partial summary judgment in favor of the West Baton Rouge Parish Revenue Department (the Department) and making executory the unpaid local sales and/or use taxes, penalties, and interest assessed against LMC. For the following reasons, we affirm the judgment and remand.

RULE TO SHOW CAUSE

The district court’s March 3, 2011 judgment granted a motion for partial summary judgment, but did not contain a designation of the judgment as final, pursuant to LSA-C.C.P. art. 1915(B); therefore, this court issued a rule to show cause why the appeal should not be dismissed. This court also granted the parties leave to supplement the record with the appropriate designation. The record was supplemented with the district court’s May 18, 2011 judgment, designating its March 3, 2011 judgment as final and stating that there was no just reason for delay. However, the district court did not express the reasons underlying its determination. Therefore, the propriety of the designation must still be evaluated by this court. See R.J. Messinger, Inc. v. Rosenblum, 04-1664 (La.3/2/05), 894 So.2d 1113, 1114-15.

The partial summary judgment rendered by the district court made executory the Department’s tax assessment, penalties, and interest against LMC, reserving its claims for audit fees and attorney fees, which could be awarded only after the total amounts of the tax assessment, penalties, and interest were determined by the court. Having reviewed the record in light of the factors set out in Messinger, we find that under the | scircumstances of this case, the March 3, 2011 judgment was properly designated as final. Therefore, we dismiss the rule to show cause and maintain the appeal.

FACTUAL AND PROCEDURAL BACKGROUND

On October 25, 2010, the Department filed a summary proceeding against LMC under the provisions of LSA-R.S. 47:337.83 and 47:337.61. The Department alleged that LMC was a registered dealer for West Baton Rouge Parish sales and use tax purposes, and operated as Louisiana’s sole statewide Caterpillar franchise dealer, selling at retail, leasing, and repairing various new and used Caterpillar equipment and parts in West Baton Rouge Parish. The Department is the single sales and use tax collector for all local taxing authorities located in West Baton Rouge Parish. It contracted with a private auditing firm, Broussard Partners & Associates (BPA), to conduct a sales and use tax compliance audit of LMC for the period beginning December 1, 2003, and continuing through June 30, 2007. The audit was held open several times by “prescription waiver” agreements between LMC and the Department, in order to suspend the running of prescription as to any taxes that may be found to be due. The Department claimed in its petition that BPA’s audit revealed that LMC had incorrectly charged and collected sales and use taxes from its customers in West Baton Rouge Parish on its taxable sales, leases, and repairs. Relying on LSA-R.S. 47:337.17(E) and (C), the Department claimed LMC was liable to it for the taxes it had neglected, failed, or refused to collect and remit, along with penalties and interest.

The original audit conducted by BPA showed a sales and use tax deficiency of $373,748.24. On November 23, 2009, the Department issued to LMC a “Notice of Proposed Assessment” for this deficiency, along with a penalty of $93,437.10 and interest of $209,246.45, for a total due of $676,431.79. Upon receipt of this proposed assessment, LMC submitted additional documentation to BPA, demonstrating its compliance with West Baton Rouge Parish sales and use tax ordinances. After BPA reviewed those documents, the Department issued a “Revised Notice of Proposed Assessment,” dated May 28, 2010, showing a sales and use tax deficiency of $127,397.62, a penalty of $31,849.44, and interest of $91,865.79. LMC made no response to the revised notice, and on June 28, 2010, the Department issued a “Notice |4of Assessment and Right of Appeal” for the amounts shown in the revised notice, plus additional accrued interest in the amount of $1,592.47, for a total of $252,705.32. The notice advised LMC that it had sixty calendar days from the date of the notice to pay the amount assessed, request a hearing with the director of the Department, or pay the amount assessed under protest and file suit for recovery within thirty days of payment, pursuant to LSA-R.S. 47:387.68. The notice further advised that failure to act within the time and manner described would result in the assessment becoming final and enforceable by legal action. Because LMC took none of these steps, the Department filed its petition, alleging that the assessment had become final and was the legal equivalent of a money judgment against LMC, pursuant to LSA-R.S. 47:337.68. With additional accrued interest, the total tax, penalty, and interest assessment through October 31, 2010, was $255,890.26, which, with interest continuing to accrue until paid, the Department sought to make executory by a declaratory judgment of the district court.

The Department further sought an injunction against LMC, pursuant to LSA-R.S. 47:337.33(A)(3), enjoining it from the further pursuit of business in West Baton Rouge Parish until payment in full of all amounts due. It also sought recognition of its lien, mortgage, and privilege on all property owned by LMC, pursuant to LSA-R.S. 47:337.65, to secure payment of the amounts due. Because the Department had employed counsel to assist in the collection of the taxes, penalties, and interest assessed against LMC, it sought attorney fees in the amount of ten percent of the aggregate amount due, or such lesser or greater amount found reasonable and fixed by the court, plus interest on that amount from date of judgment until paid. It also sought payment of the audit fees incurred with BPA in the amount of $21,180.79, pursuant to LSA-R.S. 47:337.75 and 47:337.26. The Department attached to its petition the affidavit of Melanie Moore, its director, averring that the facts alleged in the petition were true and correct to the best of her knowledge and belief, thereby establishing a prima facie case in favor of the Department and shifting the burden of proof to LMC to establish anything to the contrary, in accordance with LSA-R.S. 47:337.61(4).

On November 19, 2010, LMC filed an answer, exceptions, and affirmative | .¡defenses to the Department’s petition. In its answer, LMC contested the audit and assessment and denied any sales or use taxes, penalties, or interest were due. It raised the declinatory exception of insufficiency of citation and service of process; dilatory exceptions of unauthorized use of summary proceeding and vagueness or ambiguity of the petition; and the peremptory exception of prescription. Its affirmative defenses included various ways in which the assessments were erroneous; extinguishment of the obligation through payment or, in the alternative, offset; denial of due process and equal protection of the laws in violation of the Louisiana and United States Constitutions; non-taxability of the transactions included in the assessment; lack of finality of the assessment; and, to the extent any additional tax might be owed, a request for waiver of all penalties and interest. On December 13, 2010, LMC filed a supplemental and amending answer and affirmative defense, asserting that, to the extent the Department might contend that the tax statutes divested the district court of subject matter jurisdiction, precluded LMC from raising any defenses or presenting evidence relevant to the correctness of the audit and assessment, or gave the Department unfettered discretion to determine the validity and correctness of the audit with no right of judicial review, then those statutes, as interpreted by the Department, were unconstitutional.

The Department opposed LMC’s exceptions and affirmative defenses and filed an exception raising the objections of peremption and lack of jurisdiction over the subject matter, pursuant to LSA-R.S. 47:337.51(0). It then moved to strike LMC’s supplemental and amending answer and affirmative defenses on the grounds that they were urged separately and weeks after LMC’s first responsive pleading, in violation of LSA-R.S. 47:337.61(2), and that these defenses to the taxing authority had been rejected by both the Louisiana and United States Supreme Courts. It also filed a motion for partial summary judgment, alleging there were no genuine issues of material fact and that the Department was entitled to judgment in its favor and against LMC as a matter of law for the amounts due for the sales and use tax deficiency, interest, and penalties, as set out in the “Notice of Assessment and Right of Appeal” and its petition. After a hearing, the court granted the Department’s motion to strike, sustained its | ^peremptory exceptions raising the objections of peremption and lack of subject matter jurisdiction, and granted its partial motion for summary judgment. This appeal followed.

APPLICABLE LAW

General Provisions

The Uniform Local Sales Tax Code (ULSTC), LSA-R.S, 47:337.1, et seq., was enacted by 2003 La. Acts, No. 73, § 1, effective July 1, 2003, in order to promote uniformity in the assessment, collection, administration, and enforcement of the sales and use taxes imposed by taxing authorities and, by compiling them, make them readily available in one place in the revised statutes. See LSA-R.S. 47:337.2(A)(l)(b). A single tax collector may be designated to collect any and all sales and use taxes levied by taxing authorities located within a single parish. See LSA-R.S. 47:337.13(A). The designated tax collector may examine or investigate the records of any taxpayer or may contract with a private auditing firm to do so. See LSA-R.S. 47:337.36 and 337.26(B). An action to enforce the collection of a sales or use tax, including any applicable interest, penalties, or other charges levied by a taxing authority, may be brought by the collector of each taxing authority in the parish in which the taxing authority is situated. See LSA-R.S. 47:337.25 and 337.27.

Enforcement Procedures

There are several enforcement mechanisms available to the tax collector. Louisiana Revised Statute 47:337.33(A)(1) authorizes the tax collector to take a rule on a taxpayer, requiring the taxpayer to show cause why he should not be ordered to cease the further pursuit of his business for failure to pay to the taxing authority the amounts of sales and use taxes collected from others by his business. However, such rule may be taken only for amounts due as a result of assessments or judgments which have become final and nonap-pealable. LSA-R.S. 47:337.33(A)(1). The collection procedure established in Subsection (A) of Section 337.33 is in addition to any other collection procedure provided by law. See LSA-R.S. 47:337.33(A)(5).

Alternative remedies or procedures that may be used by the tax collector include: (1) assessment and distraint, as provided in LSA-R.S. 47:337.48 through |7337.60; (2) summary court proceeding, as provided in LSA-R.S. 47:337.61; and (3) ordinary suit under the provisions of the general laws regulating actions for the en-fdrcement of obligations. See LSA-R.S. 47:337.45(A). The tax collector may choose which of these procedures he will pursue in each case, and the counter-remedies and delays to which the taxpayer will be entitled will be only those which are not inconsistent with the proceeding initiated by the tax collector. However, the taxpayer shall be entitled to proceed under LSA-R.S. 47:337.63 in every case unless (a) an assessment for the tax in question has become final or (b) a suit involving the same tax obligation is pending against him. See LSA-R.S. 47:3S7.45(B). The fact that the tax collector has initiated proceedings under the assessment and distraint procedure will not preclude him from thereafter proceeding by summary or ordinary court proceedings for the enforcement of the same tax obligation. See LSA-R.S. 47:337.45(B).

When a taxpayer has not correctly computed and paid his tax liability, the tax collector may initiate an assessment and distraint procedure against the taxpayer by mailing a notice to the taxpayer at the address shown on his last tax report, setting out the tax collector’s determination and informing the taxpayer of the collector’s intent to assess the amount determined against him after thirty calendar days from the date of the notice. See LSA-R.S. 47:337.48(B). Within thirty calendar days from the date of such notice, as provided in LSA-R.S. 47:337.48(B), the taxpayer may protest the assessment in writing to the tax collector, after which a hearing must be held before the tax collector may make a final determination of the tax, penalty, and interest due. See LSA-R.S. 47:337.49. After the expiration of thirty calendar days from the date of the tax collector’s notice, the collector shall proceed to assess the tax, penalty, and interest that he determines to be due under the provisions of the local ordinance and the ULSTC. This assessment must be evidenced by a writing setting forth the name of the taxpayer, the amount determined to be due, the kind of tax, and the taxable period for which it is due, which writing shall be retained as part of the tax collector’s official records. The assessment may confirm or modify the tax collector’s originally proposed assessment. See LSA-R.S. 47:337.50(B). Having made the assessment, the tax collector must send a notice by certified mail to the taxpayer, informing the taxpayer of 18the assessment and that he has sixty calendar days from the date of the notice to: (a) pay the amount of the assessment; (b) request a hearing with the tax collector; or (c) pay under protest in accordance with LSA-R.S. 47:337.63, See LSA-R.S. 47:337.51(A). Any dealer who is aggrieved by the assessment may, within thirty days of receipt of notice of the assessment, file a written and sworn protest with the tax collector and request a hearing. If a hearing is requested, the tax collector must grant it and may thereafter make any order confirming, modifying, or vacating the assessment. The filing of a protest will not abate any penalty for nonpayment, nor will it stay the right of the taxing authority to collect the tax in any manner provided in the ULSTC. See LSA-R.S. 47:337.51(B). Appeals from the decision of the tax collector may be directed to any city, state, or federal court of competent jurisdiction. Section 337.51 affords a legal remedy and right of action in any such court having jurisdiction of the parties and subject matter for a full and complete adjudication of any and all questions arising in the enforcement of the local ordinance and the ULSTC as to the legality of any tax or the method of its enforcement. See LSA-R.S. 47:337.51(B). No assessment made by the tax collector shall be final if it is determined that the assessment was based on an error of fact or of law. An “error of fact” means facts material to the assessment assumed by the collector at the time of the assessment to be true, but which subsequently are determined by the collector to be false. “Error of law” means that in making the assessment, the collector applied the law contrary to the construction followed by the collector in making other assessments. See LSA-R.S. 47:337.51(0(1). Determinations of any errors of fact or law under Subsection C of Section 337.51 shall be solely that of the tax collector, and no action against the collector with respect to the determination shall be brought in any court, and no court shall have jurisdiction of any such action. See LSA-R.S. 47:337.51(0(2). The taxpayer has the right, by a signed notice in writing filed with the tax collector, to waive the restrictions and delays prescribed in LSA-R.S. 47:337.48 through 337.51 that must ordinarily be observed Rbefore an assessment may become final. When such a waiver is executed, the assessment is final when made and is immediately collectible by dis-traint and sale. See LSA-R.S. 47:337.52. When a taxpayer fails to pay any tax, penalty, and interest assessed, the collector may proceed to enforce the collection thereof by distraint and sale, as defined and described in LSA-R.S. 47:337.57 through 337.60. See LSA-R.S. 47:337.56.

In addition to any other procedure provided by the ULSTC or elsewhere in the laws of this state, the taxing authority or the tax collector is authorized to bring a summary proceeding in court for the hearing and determination of all claims for taxes, penalties, interest, attorney fees, or other costs and charges. See LSA-R.S. 47:337.61(1). All defenses, whether by exception or to the merits, made or intended to be made to any such claim, must be presented by the taxpayer at one time and filed in the court of original jurisdiction prior to the time fixed for the hearing, and no court shall consider any defense unless so presented and filed. This provision shall be construed to deny to any court the right to extend the time for pleading defenses. See LSA-R.S. 47:337.61(2). Whenever the pleadings filed on behalf of the taxing authority or the collector are accompanied by an affidavit of the collector or his representative, stating that the facts as alleged are true to the best of the affiant’s knowledge or belief, all of the facts alleged in said pleadings shall be accepted as prima facie true and as constituting a prima facie case, and the burden of proof to establish anything to the contrary shall rest wholly on the defendant or opposing party. See LSA-R.S. 47:337.61(4). Payment of tax under protest and filing suit for the recovery of such tax is available to any taxpayer protesting the payment of any amount found due by the tax collector or the enforcement of any provision of law in relation thereto. See LSA-R.S. 47:337.63(A)(l)(a). Under Subsection A of Section 337.63, the ability to pay under protest and file suit for recovery of the tax is also available to the purchaser who has been required to pay sales or use taxes to a selling dealer. See LSA-R.S. 47:337.63(A)(l)(b), (2), and (3). Like LSA-R.S. 47:337.51(B), Section 337.63 affords a |! nlegal remedy and right of action in any state court having jurisdiction of the parties and subject matter for a full and complete adjudication of all questions arising concerning the enforcement of the sales and use tax of a taxing authority. See LSA-R.S. 47:337.63(B). In lieu of paying the tax under protest, the taxpayer may utilize an alternative remedy of posting a commercial bond or other security in connection with the suit filed against the tax collector contesting the final assessment. See LSA-R.S. 47:337.64.

With certain specific exceptions, any tax, penalty, interest, attorney fees, or other costs due to the taxing authority shall operate as a lien, privilege, and mortgage on all the property of the tax debtor, which security interest is enforceable in any court of competent jurisdiction in an action at law or as otherwise provided by the ULSTC. See LSA-R.S. 47:337.65.

ANALYSIS

The first issue presented by LMC for review by this court is whether a motion for summary judgment was appropriate under the summary proceeding authorized by LSA-R.S. 47:337.61. See LSA-C.C.P. art. 2592(12). LMC contends that, because the statute does not specifically provide for such a motion and contemplates a full evidentiary hearing on all claims, the motion should not have been allowed by the court. LMC further argues that, even if the motion for partial summary judgment was procedurally appropriate, the evidence submitted in support of the motion was not sufficient to carry the Department’s burden of proof, because it did not meet the evidentiary standards of LSA-C.C.P. art. 967. We find no merit in these contentions. The summary proceeding described in LSA-R.S. 47:337.61 places no limitations on the type of pleadings that can be filed by the taxing authority or collector to present its claims for taxes, penalties, interest, attorney fees, or other costs. See LSA-C.C.P. art. 2596. Moreover, LSA-R.S. 47:337.61(4) sets out that an affidavit of the taxing authority or collector’s representative stating that the facts alleged in the pleadings “are true to the best of the affiant’s knowledge or belief’ will satisfy the evidentiary requirements and establish a prima facie case in favor of the taxing authority. Thus, the ULSTC provides an evidentiary standard for summary proceedings under its provisions that differs | n significantly from the provisions of the Code of Civil Procedure governing motions for summary judgment filed in other civil proceedings. The ULSTC does not require that the affiant have personal knowledge of the facts set out in the pleadings, only that the facts as alleged are true to the best of the affiant’s knowledge or belief. The affidavit submitted by the Department in support of its motion for partial summary judgment satisfied the requirements of LSA-R.S. 47:337.61(4). Therefore, the court did not err in accepting the affidavit as prima facie proof of the Department’s allegations.

LMC also contends the court erred in striking its supplemental and amended pleadings. The statute governing the summary proceeding clearly states:

All defenses, whether by exception or to the merits, made or intended to be made to any such claim, must be presented at one time and filed in the court of original jurisdiction prior to the time fixed for the hearing, and no court shall consider any defense unless so presented and filed. This provision shall be construed to deny to any court the right to extend the time for pleading defenses....

See LSA-R.S. 47:337.61(2). Therefore, LMC’s supplemental and amending petition, which was not presented at the same time as the original petition, was improper, and the court did not err in striking it.

However, LMC claims the court erred in finding that the assessment was “final” and not allowing it to present its defenses, as authorized by LSA-R.S. 47:337.61(2), or to disprove the Department’s allegations, as authorized by LSA-R.S. 47:337.61(4). The initial steps taken by the Department corresponded to the procedures required for the assessment and distraint mechanism outlined by LSA-R.S. 47:337.48 through 337.60. See LSA-R.S. 47:337.45. The Department complied with all the assessment and distraint provisions governing notice to LMC of the original proposed assessment, the revised notice of proposed assessment, and the final notice of assessment and right of appeal. These notices advised LMC of the tax deficiencies found by the audit, the amounts the Department proposed to assess, and the responses available to the taxpayer to challenge the accuracy of the audit and assessment under the ULSTC.

Unfortunately, LMC chose not to use any of the defensive mechanisms available to it throughout the assessment and dis-traint procedure. LMC did not protest the Department’s initial findings and request a hearing. See LSA-R.S. 47:337.49. Had it |12done so within thirty days after receiving the original proposed assessment notice, the Department would have been required to hold a hearing, at which LMC could have contested the factual underpinnings of the audit and presented any legal arguments and evidence it might have concerning the enforcement of the assessment. LMC responded informally by submitting additional information to the Department to correct some of the audit’s factual conclusions. Having reviewed the additional information, the Department did reduce its proposed assessment and again notified LMC of the reduced amounts it proposed to assess, triggering an additional thirty-day period within which LMC could have protested and demanded a hearing. See LSA-R.S. 47:337.50(B). This time period elapsed without any further action from LMC, resulting in the Department’s issuance of its final notice of assessment and right to appeal. See LSA-R.S. 47:337.51. This notice informed LMC of the assessment and that it had sixty calendar days from the date of the notice to: (a) pay the amount of the assessment; (b) request a hearing with the collector; or (c) pay under protest in accordance with LSA-R.S. 47:337.63. Again, LMC, as a dealer, could have protested and requested a hearing after receipt of this notice. See LSA-R.S. 47:337.51(B). It could also have paid the assessment under protest and filed suit for the recovery of such taxes. See LSA-R.S. 47:337.63(A)(l)(a). LMC took none of these steps to challenge the assessment within the delays set out in the statutes. These time periods are peremp-tive; once they have elapsed, the rights of the taxpayer set out in the statutory scheme are extinguished. See LSA-C.C. art. 3458; Reeder v. North, 97-0239 (La.10/21/97), 701 So.2d 1291,1298.

At this point, the assessment and dis-traint mechanism being used by the Department had proceeded through the steps outlined in LSA-R.S. 47:337.48(B), 337.49, 337.50(B), and 337.51(B). The Department had also reviewed its own findings and corrected errors of fact that underlay its original notice of proposed assessment, as contemplated by LSA-R.S. 47:337.51(C). After the final sixty-day period went by with no protest or payment from LMC, the Department could have enforced the collection of the assessed taxes by simply seizing LMC’s property and selling it under the provisions of LSA-R.S. 47:337.56, 337.57, 337.58, and 337.60. In an ordinary civil proceeding, the only equivalent authority to seize and sell property to satisfy an obligation is a final |isand enforceable judgment. See LSA-C.C.P. arts. 2252 and 2291 et seq. Thus, after sixty days had elapsed without action from LMC, the Department’s assessment was final and was the equivalent of a final and enforceable judgment. See LSA-R.S. 47:337.33(A)(1) and 337.68.

Moreover, the ULSTC does not limit the tax collector to using only one of the available enforcement procedures or to continuing to use the procedure it initially begins in order to enforce its assessment. Rather, the tax collector can initiate an assessment and distraint procedure and then utilize a summary proceeding to have its assessment recognized as final by the court. See LSA-R.S. 47:337.45(B); see also Bridges v. Smith, 01-2166 (La.App. 1st Cir.9/27/02), 832 So.2d 307, 312-13 (“[T]he statutory procedure for tax collection clearly does not require that the Department proceed with assessment and distraint procedure after a notice of intent to propose an assessment is mailed. The Department is specifically authorized ... to proceed, at its discretion, to enforce the collection of taxes by filing an ordinary suit against the taxpayer.”) The ULSTC clearly states that the summary proceeding can be used in addition to any other procedure employed by the tax collector. See LSA-R.S. 47:337.61 and 337.45(B). That is what the Department did in this case. It initiated the assessment and dis-traint procedure and followed that "with the summary proceeding. Therefore, when the Department established through the affidavit of its director that it had followed all the steps of the assessment and dis-traint procedure without any response from LMC, it satisfied its burden of proving that its assessment had become “final” and that it was entitled to judgment in its favor as a matter of law.

This effect of finality has long been recognized by the Louisiana Supreme Court. In Collector of Revenue v. Pioneer Bk & Tr. Co., 250 La. 446, 196 So.2d 270 (La. 1967), an assessment of state taxes became final by reason of the tax debtor’s failure to appeal to the court after an adverse decision from the Board of fax Appeals. The tax debtor’s failure to use the administrative defense mechanisms available to him under the statutory scheme resulted in the tax claim becoming “transformed into an assessment or a judgment enforceable by seizure, garnishment or distraint.” Pioneer, 196 So.2d at 273-74. This court relied on the Pioneer case in Flowers, Inc. v. Rausch, 114354 So.2d 641, 643 (La.App. 1st Cir.1977), stating that the holding of Pioneer leaves no doubt that a tax assessment is equivalent to a judgment. Similarly, once the Department’s assessment in this case became final, LMC had lost its opportunities to present evidence to counter the Department’s findings. We conclude that the district court did not err in granting the motion for partial summary judgment without considering the evidence that LMC wanted to submit in opposition to it.

In reaching this conclusion, we align this court with a recent decision from the Third Circuit Court of Appeal involving the same audit and assessment procedure against LMC and LMR for local taxes in another parish. In Jefferson Davis Parish School Bd. ex rel. Sales/Use Tax Dept. v. Louisiana Machinery Rentals, LLC, 11-0510 (La.App. 3rd Cir.10/5/11), 74 So.3d 1272, writ denied, 11-2437 (La.1/13/12), 77 So.3d 972, the tax collector used the assessment and distraint procedure, sending several notices to LMC and LMR, with LMC and LMR taking none of the responsive steps within the delays outlined in the ULSTC. The tax collector then filed a summary proceeding against LMC and LMR, and its motion for summary judgment in that proceeding was granted. The appellate court stated:

A dealer ... has three avenues it could take once it receives an assessment: file an appeal to the assessment, pay the assessment under protest, or simply pay the assessment. Each avenue requires the dealer to take action once it receives an assessment. If no action is taken by the dealer, the assessment becomes final.
In the case before us, neither LMR nor LMC took any action on the administrative level once either received its notice of assessment. Thus, as the trial court correctly found, the assessment was final, and both were precluded from raising defenses, whether by exception or on the merits, in a summary rule to collect sales tax.

Jefferson Davis, 74 So.3d at 1275-76.

LMC contends that the district court erred in relying on the finality of the assessment in sustaining the exceptions raising the objection of peremption and lack of subject matter jurisdiction. However, as noted above, the delay periods set out in the ULSTC are peremptory. Once those delays expired without action by LMC, its right to present its defenses was extinguished. Therefore, the court’s judgment on the peremption exception was correct. Similarly, the ULSTC provides for a hearing at the |1firequest of the taxpayer, after which the tax collector’s decision can be appealed by the taxpayer to the district court. LMC did not request a hearing, and therefore, the provisions for an appeal of the decision are not applicable to this case. Moreover, LMC did not pay the assessment under protest and then file suit to recover the amounts paid. Other than these actions, the ULSTC states that the decisions of the tax collector concerning any errors of fact or law are final, and “no action against the collector with respect to the determination shall be brought in any court, and no court shall have jurisdiction of any such action.” See LSA-R.S. 47:337.51(0(2). Moreover, having found that the assessment was final and had the effect of an enforceable judgment, the district court lacked authority to reconsider it. Therefore, we conclude the district court did not err in determining that it lacked subject matter jurisdiction over LMC’s claims and defenses. Given the finality of the assessment, the court’s sole authority was to recognize the Department’s claims and make the tax assessment executory.

CONCLUSION

For these reasons, the March 3, 2011 judgment of the district court, as supplemented by the May 18, 2011 judgment, is affirmed. All costs of this appeal are assessed to Louisiana Machinery Company, L.L.C. The case is remanded to the district court for determination of the appropriate amounts of audit fees and attorney fees, if any.

RULE TO SHOW CAUSE DISMISSED; APPEAL MAINTAINED; AFFIRMED AND REMANDED.

      . The Department’s suit against LMC was consolidated in the district court with a similar suit against Louisiana Machinery Rentals, L.L.C. (LMR). The suit against LMR was dismissed; therefore, this appeal involves only the claims against LMC.

      . The Messinger case noted the following factors to be considered:
      1) The relationship between the adjudicated and unadjudicated claims;
      2) The possibility that the need for review might or might not be mooted by future developments in the trial court;

        3) The possibility that the reviewing court might be obliged to consider the same issue a second time; and
      4) Miscellaneous factors such as delay, economic and solvency considerations, shortening the time of trial, frivolity of competing claims, expense, and the like.

        Messinger, 894 So.2d at 1122.

      . This statute was amended by 201Ó La. Acts, No. 1003, § 2, effective January 1, 2011, to reduce the response time for the taxpayer to thirty days within which to either pay the assessment, request mandatory arbitration, or pay under protest and file suit, Because the taxes at issue in this proceeding were assessed and the enforcement action was commenced before the effective date of these revisions, we apply the statutory provisions as they existed before amendment.

      . This statute was also amended by Act 1003 in 2010 to include a mandatory arbitration option.


author: KUHN, J. GUIDRY, J.,

text:
    BATON ROUGE GENERAL MEDICAL CENTER v. LOUISIANA RESTAURANT ASSOCIATION, SIF.
    No. 2010 CA 2198.
    Court of Appeal of Louisiana, First Circuit.
    March 12, 2012.

      John S. Bradford, Lynsay M. Fontenot, Thomas A. Filo, Lake Charles, LA, for Plaintiff-Appellant Baton Rouge General Medical Center.
    Stephen W. Glusman, Baton Rouge, LA, for Defendants-Appellees Louisiana Restaurant Association, SIF and Genoble House, Ltd.
    Before WHIPPLE, KUHN, and GUIDRY, JJ.
   KUHN, J.

IgBaton Rouge General Medical Center (BR General), a healthcare provider that rendered medical services to workers’ compensation claimant, Claiborne Hunter, appeals a judgment of the Office of Workers’ Compensation (OWC), sustaining a peremptory exception raising the objection of prescription asserted by defendants, employer, Genoble House, Ltd., and its insurer, Louisiana Restaurant Association, SIF (LRA), and dismissing BR General’s claim for penalties and attorney’s fees. In light of this court’s recent decision in St. Tammany Parish Hosp. v. Trinity Marine Products, Inc., 2010-1481 (La.App. 1st Cir.2/16/12), 91 So.3d 985 (en banc), we reverse and remand.

The following facts are undisputed in this case. Hunter was treated at BR General on July 11, 2006. BR General billed defendants $16,411.25. On October 6, 2006, LRÁ remitted payment to BR General in the .amount of $4,836.00, which included a statutory workers’ compensation discount $1,209.00. BR General filed this action with the OWC on August 14, 2008, averring that the payment made by defendants was an underpayment and/or late payment, and sought both the full amount of payment as well as penalties and attorney’s fees. After answering the lawsuit on November 13, 2009, defendants filed, on November 20, 2009, a peremptory exception of prescription. The OWC sustained the exception in a judgment signed on February 11, 2010. Notice of that judgment was never mailed.

On March 10, 2010, LRA paid BR General the full amount the healthcare provider claimed entitlement to for payment of its fee. On March 29, 2010, LRA filed a motion for summary judgment, seeking dismissal of BR General’s claims against it. OWC granted the motion and, noting its action of having sustained ^defendants’ exception of prescription on February 11, 2010, dismissed BR General’s claims.

This appeal, in which BR General challenges the OWC’s action of sustaining the peremptory exception of prescription, followed. Because notice of the February 11, 2010 judgment was never sent, we initially point out that BR General has timely appealed that ruling by the OWC. See La. R.S. 23:1310.5(B) (the delay for filing an appeal commences to run on the day after the judgment was signed or on the day after the district office has mailed the notice of judgment as required by La. C.C.P. art. 1913, whichever is later).

In St. Tammany Parish Hosp., citing La. R.S. 23:1201(F), a plurality reasoned that “it is the employer’s (or the insurer’s) failure to provide the payment of the medical benefit within the time period required for the payment of that medical benefit under La. R.S. 23:1201 that triggers the [healthcare] provider’s entitlement to a penalty.” That plurality, therefore, concluded, “this is when the |4[healthcare] provider’s claim for penalties and attorney[’s] fees arises or accrues,” and held that under La. R.S. 23:1209(0, the healthcare provider’s claim for the underpayment of medical benefits prescribed at the expiration of three years from the time of making the last payment of medical benefits. St. Tammany Parish Hosp., 91 So.3d at 991-92.

If we were to apply this rationale to the facts of this case, BR General’s claim for penalties and attorney’s fees began to accrue on October 6, 2006, when defendants made the underpayment. And because BR General instituted this action on August 14, 2008, which was approximately one year and ten months after the date of the last payment, it was well within the three-year prescriptive period.

Another plurality in St. Tammany Parish Hosp. reached the same result but applied a different rationale. That plurality emphasized the delictual nature of the claim for penalties and attorney’s fees and suggested that because La. R.S. 23:1201(F), creating the cause of action for the healthcare provider’s claim, did not provide a time period for the claim to be asserted, the one-year prescriptive period of La. C.C. art. 3492 was the applicable prescriptive period. While pointing out that under La. C.C. art. 3492, the prescriptive period commences the | sdate that injury or damage is sustained, that plurality noted that prescription cannot run against a cause of action that has not accrued or while the cause of action cannot be exercised. St. Tammany Parish Hosp., 91 So.3d at 992-93. Because under the language of La. R.S. 23:1201(F)(4), a healthcare provider may only be awarded penalties and attorney’s fees “[i]n the event that [it] prevails on a claim for payment of [its] fee,” that plurality held that the healthcare provider’s claim does not accrue until it has prevailed on the merits of its claim for payment of its fee. Id. at 993.

If we were to apply this rationale to the facts before us, because it was not until LRA paid BR General the full amount of its fee on March 10, 2010 that BR General prevailed on the merits of its claim for payment of its fee, the lawsuit filed on August 14, 2008 was timely asserted.

Accordingly, under either plurality’s rationale, the facts presented in this appeal establish that BR General’s claim was timely asserted. Therefore, the OWC’s dismissal of BR General’s claim for penalties and attorney’s fees is reversed, and the matter is remanded for further proceedings. Appeal costs are assessed against defendants, Genoble House, Ltd., and its insurer, Louisiana Restaurant Association, SIF.

REVERSED AND REMANDED.

WHIPPLE, J., concurs.

GUIDRY, J., concurs and assigns reasons.

GUIDRY, J.,

concurring.

|,I find that a claim for penalties and attorney’s fees under La. R.S. 2S:1201(F) is delictual in nature, and, therefore, the one-year prescriptive period set forth in La. C.C. art. 3492, commencing from the date of nonpayment or underpayment, applies to such claims. However, in light of the obligation to apply existing First Circuit case law, I am constrained to concur in the result reached by the majority as per this Court’s en banc opinion in St. Tammany Parish Hospital v. Trinity Marine Products, Inc. and Ace American Insurance Company, 10-1481 (La.App. 1st Cir.2/16/12), 91 So.3d 985.

      . La. R.S. 23:1201 provides in relevant part:
      E. Medical benefits payable under this Chapter shall be paid within sixty days after the employer or insurer receives written notice thereof.
      F. Failure to provide payment in accordance with this Section ... shall result in the assessment of a penalty in an amount up to the greater of twelve percent of any unpaid compensation or medical benefits, or fifty dollars per calendar day for each day in which any and all compensation or medical benefits remain unpaid or such consent is withheld, together with reasonable attorney fees for each disputed claim; however, the fifty dollars per calendar day penalty shall not exceed a maximum of two thousand dollars in the aggregate for any claim. The maximum amount of penalties which may be imposed at a hearing on the merits regardless of the number of penalties which might be imposed under this Section is eight thousand dollars. An award of penalties and attorney fees at any hearing on the merits shall be res judicata as to any and all claims for which penalties may be imposed under this Section which precedes the date of the hearing. Penalties shall be assessed in the following manner ...
      (4) In the event that the health care provider prevails on a claim for payment of his fee, penalties as provided in this Section and reasonable attorney fees based upon actual hours worked may be awarded and paid directly to the health care provider.

      . La. R.S. 23:1209(C) provides:
      All claims for medical benefits payable pursuant to R.S. 23:1203 shall be forever barred unless within one year after the accident or death the parties have agreed upon the payments to be made under this Chapter, or unless within one year after the accident a formal claim has been filed with the office as provided in this Chapter. Where such payments have been made in any case, this limitation shall not take effect until the expiration of three years from the time of making the last payment of medical benefits.