text:
    Juan MENDOZA, Andrea Mendoza, individually, and on behalf of their minor children, Plaintiffs-Appellees v. GREY WOLF DRILLING CO., LP., EXCO Partners Operating Partnership, LP., Anadarko Petroleum Corporation, Wood Group Field Services, Inc., Michael T. Garcia, and Mid South Consulting, Inc., Defendants-Appellants.
    No. 46,438-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 22, 2011.
    Rehearing Denied Aug. 4, 2011.

      Plauché Maselli Parkerson, LLP, New Orleans, LA, by Joseph Maselli, Jr., H. Edward Barousse, Scott H. Mason, Bradley Murchison, et al., Shreveport, LA, by Dale G. Cox, for Defendant & Defendant in Cross-Claim Appellant Exco Partners Operating Partnership LP.
    Jack Bailey Law Corporation, Shreveport, LA, by Jack M. Bailey, Jr., Heather R. Ray, for Plaintiffs-Appellees Juan Mendoza and Andrea Mendoza.
    Crawford Lewis PLLC, by Michael T. Durham, New Orleans, LA, Keely Y. Scott, Baton Rouge, LA, Holly G. Hansen, for Defendants & Plaintiffs in Cross-Claim Appellees Michael Garcie & Mid South Consulting.
    Campbell, Campbell & Marvin, by John C. Campbell, Minden, LA, for Defendant-Appellee Michael Garcie.
    Keogh, Cox & Wilson, Baton Rouge, LA, by Nancy B. Gilbert, Stephen M. Whitlow, for Defendant-Appellee Federal Ins. Co.
    Lugenbuhl, Wheaton, Peck, et al., New Orleans, LA, by Celeste D. Elliott, for Defendant-Appellee Century Surety.
    Before PEATROSS, MOORE and LOLLEY, JJ.
   MOORE, J.

|, This is a dispute over whether a contractual indemnity obligation arises out of a personal injury action filed by Juan Mendoza for injuries he sustained in a gas well blowout on October 19, 2007 in the Vernon Field in Jackson Parish. Defendants EXCO Partners Operating Partnership (“EXCO”) and Mid South Consulting Inc. and Michael Garcie (collectively, “Mid South”) filed cross motions for summary judgment on the question of whether EXCO has an obligation to defend and indemnify Mid South pursuant to a Master Service Agreement executed in 2008 (“MSA” or “2008 Agreement”), or, alternatively, by virtue of an earlier agreement confected in 2004 (“2004 Agreement”) between Mid South and EXCO’s assignor, Anadarko Petroleum Corporation (“Ana-darko”). EXCO’s motion was denied and Mid South’s cross motion granted. The court ordered EXCO to defend Mid South against the plaintiffs’ claims and indemnify Mid South for any damages it is ordered to pay. EXCO filed this appeal. We affirm.

FACTS AND PROCEDURE

Juan Mendoza sustained injuries from a well blowout during a workover operation on October 19, 2007. He filed suit against the above-captioned defendants, including EXCO and Mid South, for alleged damages resulting from injuries he sustained in the blowout.

For several years prior to the accident, Mid South had performed consulting work in and around the Vernon Field, first on behalf of Anadarko, and after EXCO purchased Anadarko’s interests, on behalf of |PEXCO. On the day of the incident at the site in question, Mid South was performing work for EXCO at Vernon Field. The parties had selected Michael Garcie to perform the work in the role of drilling consultant and “company man” for EXCO.

Mendoza filed suit on August 14, 2008 against all parties involved in the well operations, including EXCO and Mid South and Garcie.

Four months later, on December 16, 2008, Mid South and EXCO memorialized their working relationship by entering into the written 2008 Agreement. Among the obligations expressed in the 2008 Agreement is the obligation of EXCO to defend, indemnify and hold harmless Mid South against personal injury claims.

After filing an answer, on July 1, 2009, Mid South demanded from EXCO a defense and indemnity in connection with the plaintiffs’ claims on the basis of the 2008 Agreement. EXCO declined on grounds that the 2008 Agreement was not executed for more than a year after the accident and was not in effect at the time of the accident. Mid South tendered a second demand for defense and indemnity on September 17, 2009, citing the 2004 agreement between Anadarko and Mid South, which it alleged EXCO assumed when it purchased Anadarko’s interests and assumed its obligations. Mid South tendered the indemnity demand a third time and filed a cross-claim against EXCO.

On April 22, 2010, EXCO filed an exception and answer against the cross-claim, and filed a motion for summary judgment. Mid South filed a cross motion for summary judgment on July 29, 2010. Both motions werejjheard on August 24, 2010.

At the conclusion of the hearing on August 24, 2010, the trial court denied EXCO’s motion and granted Mid South’s motion for summary judgment. EXCO filed a motion to designate the judgment as final and appealable, and also filed a supervisory writ application to this court. We denied the writ application, finding that EXCO did not show irreparable harm, and did not satisfy the requirements of Herlitz Constr. Co. v. Hotel Investors of New Iberia, Inc., 396 So.2d 878 (La.1981).

On November 9, 2010, the trial court denied EXCO’s motion to designate the judgment as appealable. We granted EXCO’s writ application and vacated the judgment of the trial court. EXCO then timely filed this suspensive appeal.

DISCUSSION

The parties agree that Texas law applies to the contract in question. Therefore, we apply Texas substantive law in resolving the substantive issues before us, except to the extent provided by La. C.C. art. 3537. La. C.C. art. 3540; Sentilles Optical Services, Division of Senasco, Inc. v. Phillips, 26,594 (La.App. 2 Cir. 3/1/95), 651 So.2d 395. However, we find that use of Louisiana procedural law on summary judgment is appropriate. THH Properties Ltd. Partnership v. Hill, 41,038 (La.App. 2 Cir. 6/2/06), 930 So.2d 1214.

“Favored in Louisiana, the summary judgment procedure ‘is designed to secure the just, speedy, and inexpensive determination of every action’ and shall be construed to accomplish these ends.” King v. Parish Nat’l Bank, 04-0337, (La.10/19/04), 885 So.2d 540, 545 (quoting La. C.C.P. art. 966(A)(2)). An appellate court reviews a district court’s decision granting summary judgment de novo, using the same standard applied by the trial court in deciding the motion for summary judgment. Schultz v. Guoth, 2010-0343 (La.1/19/11), 57 So.3d 1002. Under this standard, summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B).

By its first assignment of error, EXCO alleges that the trial court erred in denying its motion for summary judgment and in granting Mid South’s cross motion for summary judgment, thereby requiring EXCO to defend and indemnify Mid South in the instant personal injury action. Specifically, EXCO contends that a judgment in its favor was mandated by its motion pointing out the absence of factual support for an essential element of Mid-South’s claim for defense and indemnity, namely, the existence of an enforceable indemnity contract covering this lawsuit. It alleges that neither the 2008 Agreement, nor its purchase of Anadarko’s interests in the Vernon Field imposed the obligations of defense and indemnity for suits arising out of Mendoza’s accident. It claims that the 2008 Agreement between EXCO and Mid South was not in effect at the time of the accident, and EXCO never assumed the indemnity obligations arising from a 2004 Agreement between Mid South and Ana-darko when it purchased Anadarko’s interest in the Vernon Field.

Is After argument, the trial court granted Mid South’s motion for summary judgment and denied EXCO’s cross-motion based on its construction of the “effective date” provision of the 2008 Agreement. The court did not rule regarding Mid South’s alternative claim that EXCO had a duty to defend and indemnify by virtue of its purchase of Anadarko’s interests in the Vernon Field and concomitant assumption of Anadarko’s obligations. Accordingly, the first issue in this case is whether the 2008 Agreement imposes on EXCO a duty to defend and indemnify Mid South against the plaintiffs’ claims.

Texas law regarding the construction of contracts is not dissimilar to Louisiana law. Recently, in Reliance Ins. Co. v. Hibdon, (Tex.App. Hous. (14 Dist.) 2011), 333 S.W.3d 364, the court succinctly stated the rules of interpretation of contracts in Texas as follows:

When interpreting a contract, we must ascertain and give effect to the contracting parties’ intent. Perry Homes v. Cull, 258 S.W.3d 580, 606 (Tex.2008). We focus on the language used in the contract because it is the best indication of the parties’ intent. Id. We must examine the entire contract in an effort to harmonize and effectuate all of its provisions so that none are rendered meaningless. Seagull Energy E & P, Inc. v. Eland Energy, Inc., 207 S.W.3d 342, 345 (Tex.2006). Therefore, we will not give controlling effect to any single provision; instead, we read all of the provisions in light of the entire agreement. Id. (citing Coker v. Coker, 650 S.W.2d 391, 393 (Tex.1983)). We may not rewrite the contract or add to its language under the guise of interpretation. See Am. Mfrs. Mut. Ins. Co. v. Schaefer, 124 S.W.3d 154, 161-62 (Tex. 2003). Rather, we must enforce the contract as written. See Royal Indem. Co. v. Marshall, 388 S.W.2d 176, 181 (Tex.1965). If possible, we should avoid a construction that is unreasonable, | (-.oppressive, inequitable, or absurd. Pavecon, Inc. v. R-Com, Inc., 159 S.W.3d 219, 222 (Tex.App.-Fort Worth 2005, no pet.). Language should be given its plain grammatical meaning unless it definitely appears that the intention of the parties would thereby be defeated. Reilly v. Rangers Mgmt., Inc., 727 S.W.2d 527, 529 (Tex.1987).
A court may determine that a contract is ambiguous even if neither party makes the claim. In re Sterling Chems., Inc., 261 S.W.3d 805, 809 (Tex.App.Houston [14th Dist.] 2008, orig. proceeding) (citing Sage St. Assocs. v. Northdale Constr. Co., 863 S.W.2d 438, 445 (Tex.1993)). However, a mere disagreement about interpretation does not render a contract ambiguous. See id. at 808. Instead, a contract is ambiguous if it is susceptible to more than one reasonable interpretation. J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 229 (Tex.2003). By contrast, a contract that may be given a definite or certain meaning is not ambiguous and will be construed as a matter of law. See id. Determining whether contract language is ambiguous presents a question of law for the court. See id.

Guided by these principles, we turn now to the 2008 Agreement. There is no dispute that the very first provision of the agreement states: “This Master Service and Supply Agreement, effective as of December 16, 2008 is made by and between one or more of EXCO Resources, Inc. ... and Mid-South Consultants, Inc.” The date, “December 16, 2008” is typewritten on the form contract that was supplied by EXCO and has the EXCO logo on the face of it. However, on page 13 of the contract, among the standard clauses contained in most contracts (choice of law, severability clause, etc.) there is Section 14, entitled “Effective Date,” which provides the following:

This Agreement shall be deemed to have been in full force and effect on the date first above written or on the date on which CONTRACTOR (Mid South) first commenced the performance of any services for COMPANY (EXCO) or first provided goods, equipment or facilities to COMPANY, whichever first occurred, and even though this Agreement may not then have been reduced to writing.

|7The trial court concluded that this provision “has a clear meaning” and “EXCO should have known the effective date (clause) was in the contract” and “they were the ones that drafted it.” The court then denied EXCO’s motion for summary judgment and granted Mid South’s motion stating that the “effective date provision should be given effect” and “it’s a plain reading of [the] effective date (provision) and EXCO drafted this contract.”

EXCO contends, however, (in its second assignment of error) that the trial court did not properly apply Texas’s law of contractual interpretation; instead the court erroneously applied a rule of construction called contra 'proferentem, that is, the construction of an ambiguous provision in a contract against the person who drafted the document. To support this claim, it points out that the court asked the parties at oral argument who drafted the agreements, and it mentioned several times that “EXCO is the one that drafted the contract” in its ruling on the cross motions for summary judgment. Since the court ultimately concluded that the contractual provision in question has a “clear meaning” and was not ambiguous, the court improperly used a contra proferentem rule of construction.

After our review of the contract and transcript of the hearing, we conclude that the court did not interpret the contract against EXCO as the drafter of the document. Rather, the court simply stated that EXCO should have known that it was incurring the obligations of the contract, including the duty to defend and indemnify Mid South for earlier events because it was the one who drafted the document. The court expressly stated that “the | seffective date has a clear meaning,” and “that EXCO should have known the effective date since it drafted the document.” We conclude, therefore, that this assignment is without merit.

By its third assignment of error, EXCO contends that the trial court erred in giving effect to the “Effective Date” provision in Section 14 of the 2008 Agreement instead of the typewritten “December 16, 2008” effective date on the first page of the agreement. EXCO contends that the court disregarded a contractual rule of interpretation known as the “typed over printed” rule. McCreary v. Bay Area Bank & Trust, 68 S.W.3d 727 (Tex. App. Houston 14th Dist.2001). In other words, it contends that because the date, “December 16, 2008,” was typed on the first page of the agreement as the effective date of the contract, the court should disregard the “pre-printed” language of section 14 of the contract entitled, “Effective Date.” Additionally, EXCO contends that terms stated earlier in an agreement must be favored over subsequent terms, and more specific terms over more general terms. Since the December 16, 2008 effective date term was stated at the outset of the agreement and is a specific date, it should be favored over the general provisions of Section 14. McCreary, supra.

In McCreary, supra, the court was faced with interpreting two conflicting terms of an individual retirement account (“IRA”) contract regarding the interest to be paid. First, the contract generally provided:

Under Individual Retirement Accounts, the funds deposited with the Custodian are deposited in interest-bearing savings accounts and, when permitted, time deposits. The interest rates that may be paid, and the period, if any, over which that rate is guaranteed are controlled by regulations issued by Federal and/or State authorities.

|gSecond, there was a typewritten addendum to the contract that provided that “the minimum rate of interest paid will never be less than 10%.”

The bank argued that the 10% rate of interest applied only to interest bearing savings accounts within the IRA, not the IRA account itself, and once the initial, introductory 18-month savings account expired, it was no longer obligated to pay 10% interest. The plaintiff depositors argued, on the contrary, that the 10% interest rate applied to all funds deposited in the IRA itself.

The court concluded that the typewritten addendum controlled the interpretation of the contract, reasoning as follows:

In construing a contract, we must determine and give effect to the intent of the parties. Sun Oil Co. (Delaware) v. Madeley, 626 S.W.2d 726, 727-28 (Tex.1981). When determining the intention of the parties, we will consider all the pertinent provisions of the contract and harmonize, if possible, those provisions which appear to conflict by using the applicable rules of construction. Ogden v. Dickinson State Bank, 662 S.W.2d 330, 332 (Tex.1983). One general rule of construction is that when there is a conflict between two provisions, the specific provision controls over the general provision. Ostrowski v. Ivanhoe Property Owners Improvement Ass’n, Inc., 38 S.W.3d 248, 254 (Tex.App.-Texarkana 2001, pet. denied). Moreover, to the extent that typewritten provisions of a contract conflict with printed provisions, the typewritten provisions must be given effect over the printed provisions. Meisler v. Republic of Texas Sav. Ass’n, 758 S.W.2d 878, 884 (Tex.App.-Houston [14th Dist.] 1988, no writ); also McMahon v. Christmann, 157 Tex. 403, 303 S.W.2d 341, 344 (1957); Easy Living, Inc. v. Cash, 617 S.W.2d 781, 785 (Tex. Civ.App.-Fort Worth 1981, no writ). The rationale for the rule is that typewritten pi'ovisions are the immediate language and terms selected by the parties themselves as setting forth their intentions, whereas the printed form is intended for general use without reference to particular objects and aims. Leslie Lowry & Co. v. KTRM, Inc., 239 S.W.2d 898, 900 (Tex.Civ.App.-Beaumont 1951, no writ). Here, the printed portion of the contract authorizes the bank to unilaterally change any provision of the deposit contract with Improper notice. The typewritten provision provides, however, that the interest rate will never fall below 10 percent. Thus, the typewritten provision is more specific than the printed provision.
Applying these rules of construction, we find there is no “conflict” between the typewritten addendum and the printed contract. The addendum is an exception to the general contract provisions and reserves one term of the agreement which cannot be amended by the bank, i.e., the interest rate may not be reduced below 10 percent. Hence, the deposit agreement is not ambiguous.
Accordingly, the contract provides that the bank may unilaterally amend any term of the deposit contract except its promise to pay at least 10 percent interest. Thus, we find the bank agreed to pay no less than 10 percent interest on all savings accounts in the IRAs for as long as appellants maintained their IRAs with the bank.

Thus, in McCreary the court concluded that the typewritten addendum to the agreement was actually an amendment to the pre-printed term of the contract regarding interest rates that allowed the bank to change the interest rate upon proper notice.

Although McCreary is instructive, we conclude that the apparent conflict of provisions in this case are easily distinguishable from the circumstances in McCreary. First, while the typewritten addendum in McCreary clearly demonstrated the parties’ specific intention to amend the general printed provision on interest rates in the agreement, in the instant contract, the typewritten or handwritten date, “December 16, 2008,” is the only information supplied in the blank space as part of the pre-printed sentence, “This Master Service and Supply Agreement (“Agreement”), effective as of December 16, 2008 is made by and between one or more of ... ” Only this single aspect of the sentence is typewritten, not to amend theJjj contract, but to memorialize the date of the agreement. If, as EXCO argues, the date typewritten or handwritten date in this blank always trumps the “Effective Date” provision of Section 14, then Section 14 has no purpose in the document and is therefore meaningless.

More importantly, however, the “Effective Date” provision clearly contemplates the circumstance that has arisen in this case: Where “the date first above written,” (i.e. the date the parties reduced their contract to writing), is later than “the date on which CONTRACTOR first commenced the performance of any services for COMPANY,” the “Agreement shall be deemed to have been in full force and effect” on the earlier occurrence “even though this Agreement may not have been reduced to writing.” Thus, the very circumstance contemplated by Section 14 has arisen in this case. As acknowledged by EXCO, it contracted with Mid South on the date of the accident and requested Mid South’s services. Mid South performed work for EXCO on that date, invoiced EXCO, and was paid. Applying Texas’s rule of construction to the effective date provisions of the 2008 Agreement, the typewritten “effective date” on the first page of the document and the “Effective Date” provision of the Agreement can be harmonized and effectuated ... so that neither are rendered meaningless. Seagull Energy E & P, Inc. v. Eland Energy, Inc., 207 S.W.3d 342, 345 (Tex.2006). Therefore, we conclude that the 2008 Agreement applies retroactively to when Mid South performed services for EXCO on the date of the accident.

Accordingly, this assignment is without merit.

112In its fourth assignment of error, EXCO contends that there is another reasonable construction of Section 14 of the 2008 Agreement. According to this interpretation, the agreement should be found to be effective on December 16, 2008, in all instances except for ongoing work that was commenced, but has not yet been completed, prior to December 16, 2008. It contends that this is consistent with the purpose of clauses that provide for work to begin before the contract is formalized, which is to enable the contractor to begin work without delay.

We conclude that this suggested construction depends solely on EXCO’s position that the purpose of Section 14 making the effective date retroactive to when work is first performed is to avoid delay in commencing work until a written agreement has been confected. However, under EXCO’s interpretation, the agreement does not apply if Mid South finished any such work before the agreement was actually signed.

We do not find this construction to be reasonable nor implied by Section 14. Section 1 on the 2008 Agreement states that the COMPANY, i.e. EXCO, may “employ the services of CONTRACTOR,” i.e. Mid South, “from time to time” and “the services provided by CONTRACTOR may be under verbal or written work orders given by COMPANY to CONTRACTOR from time to time during the term of this Agreement.” Thus, the agreement clearly contemplates periodic services to be supplied by Mid South to EXCO from time to time pursuant to oral or written orders during the term of the agreement, not simply any ongoing services at the time the agreement was confected and any future services. When read in | ^conjunction with Section 14, it is clear that the 2008 Agreement applies to any work orders given to Mid South by EXCO from time to time even prior to the actual written contract.

Therefore, we conclude that this assignment is without merit.

By its fifth assignment of error, EXCO contends that the court should have granted summary judgment for EXCO because the 2004 Agreement was not assumed by EXCO.

As a general rule, the findings, opinions and reasoning of a court do not constitute a judgment or decree, but merely form the basis or reasoning upon which the judgment is rendered. State ex rel. Nicholas v. State, 520 So.2d 377 (La.1988); Fisher v. Rollins, 231 La. 252, 260, 91 So.2d 28, 31 (1956); Delahoussaye v. D.M. Glazer & Co., Inc., 182 So. 146, 147 (La. App. 1 Cir.1938), modified on rehearing, 185 So. 644 (La.App. 1 Cir.1939). Consequently, whether the judgment denying EXCO’s motion for summary judgment and granting Mid South’s motion rested on the grounds of the 2008 Agreement rather than the 2004 Agreement was merely part of the trial court’s reasoning or basis for its judgment. The decree or judgment of the trial court simply denied EXCO’s motion for summary judgment and granted Mid South’s cross-motion for summary judgment.

We further note that Section 12 of the 2008 Agreement consists of an “entireties clause” to the effect that “[tjhis Agreement supersedes all other agreements, oral or written, previously entered into with respect to the subject matter contained in this Agreement and the transactions which it contemplates, and it contains the entire agreement of the parties.” Inasmuch 1 uas the trial court found the 2008 Agreement to constitute the contract between the parties, and by virtue of our de novo review we conclude that the 2008 Agreement is retroactive to when Mid South first performed work for EXCO in the Vernon Field and affirm the judgment of the trial court, this issue is moot.

In its sixth assignment of error, EXCO contends that the trial court erred in denying its motion for summary judgment because the contract in effect at the time of the accident could not have given rise to any duty to defend or indemnify Mid South. In this assignment, EXCO argues that the only agreement between EXCO and Mid South at the time of the accident consisted of the work order made by telephone from EXCO to Mid South to perform services for EXCO. Inasmuch as the only evidence of any contract at that time was this verbal contract, and there was no evidence of any written indemnity agreement at this time, EXCO contends it has no duty to defend and indemnify Mid South. It reiterates its contention that neither the 2008 Agreement nor the 2004 Agreement was in effect so as to obligate EXCO to defend and indemnify Mid South.

This assignment is rendered moot because of our previous holding that the defense and indemnity provisions of the 2008 Agreement is in effect and apply to the incident that gave rise to this action. Under that agreement, EXCO has an obligation to defend and indemnify Mid South.

By its final assignment of error, EXCO argues that the trial court erred in imposing an unlimited indemnity obligation on EXCO, and this |15court should modify the judgment to limit the indemnity obligations. It contends that the terms of the Agreement and the Texas Oilfield Anti Indemnity Act limit its indemnity obligation to the amount of insurance the parties agreed to obtain.

Although the judgment orders EXCO to provide a defense to Mid South against the claims asserted by plaintiffs and indemnify Mid South for any damages it is ordered to pay, the judgment does not address the issue raised by EXCO in this appeal. Nor did EXCO raise this issue in its motion for summary judgment or at oral argument.

As a general rule, appellate courts will not consider issues that were not raised in the pleadings, were not addressed by the trial court, or are raised for the first time on appeal. Costello v. Hardy, 2003-1146 (La.1/21/04), 864 So.2d 129, citing, Segura v. Frank, 93-1271 (La.1/14/94), 630 So.2d 714, 725, cert. denied, 511 U.S. 1142, 114 S.Ct. 2165, 128 L.Ed.2d 887 (1994). Accordingly, we will not consider this issue in this appeal.

CONCLUSION

After our de novo review of the record and arguments, we conclude that the trial court’s judgment denying EXCO’s motion for summary judgment and granting Mid South’s cross motion for summary judgment was correct.

Accordingly, the judgment of the trial court is affirmed.

AFFIRMED.

APPLICATION FOR REHEARING

Before BROWN, STEWART, PEATROSS, MOORE and LOLLEY, JJ.

Rehearing denied.

      . Mendoza was employed by neither Mid South nor Exco. He and others at the site were employed by Basic Energy Services as ''invitees” of EXCO pursuant to an agreement between EXCO and Basic Energy Services.

      . Although initially the court stated that it was "Looking at the contracts,” it focused solely on interpreting the "effective date” provision of "the contract,” ultimately ruling in Mid South's favor after finding that "the effective date provision should be given effect.” Since the "effective date” dispute involved only the 2008 Agreement, we conclude that this was the basis of the court's judgment.


source: Caselaw Access Project

author: PARRO, J.

license: Public Domain

text:
    BP PRODUCTS NORTH AMERICA, INC. v. Cynthia BRIDGES, Secretary of the Department of Revenue, State of Louisiana.
    No. 2010 CA 1860.
    Court of Appeal of Louisiana, First Circuit.
    Aug. 10, 2011.

      Robert S. Angelico, Cheryl M. Kornick, K. Todd Wallace, Kelly B. Becker, Liskow & Lewis, New Orleans, LA, for Plaintiff-Appellee BP Products North America, Inc.
    James R. Swanson, Loretta G. Mince, Lance C. McCardle, Alysson L. Mills, Fishman, Haygood, Phelps, Walmsley, Willis & Swanson, L.L.P., New Orleans, LA, Rickey W. Miniex, Clyde R. Simien, Todd M. Swartzendruber Simien & Mi-niex, APLC, Lafayette, LA, for Defendant-Appellant Cynthia Bridges, Secretary of the Department of Revenue, State of Louisiana.
    Before PARRO, GUIDRY, and HUGHES, JJ.
   PARRO, J.

12Cynthia Bridges, Secretary of the Louisiana Department of Revenue (the Department), appeals a judgment granting partial summary judgment in favor of BP Products North America, Inc. (BP Ex & 0) and denying the Department’s cross-motion for partial summary judgment on the issue of whether income from BP Ex <& O’s sale of the Alliance refinery in Belle Chasse, Louisiana, should have been classified as allocable income and taxed solely by the State of Louisiana, or whether, as BP Ex & O contended and the district court determined, those proceeds were ap-portionable income, taxable proportionally by all states in which BP Ex & 0 does business. After reviewing the evidence produced by both parties in this case, we affirm the judgment.

BACKGROUND

BP Ex & 0 was involved in exploration and production of oil and gas; transportation of its products through pipelines; refining crude oil into gasoline, diesel, and other usable consumer products; manufacture of chemicals; development of alternative energy sources; and marketing of its various products through retail sales outlets, such as gasoline stations. BP Ex & 0 was not operated as a stand-alone entity. Rather, BP Ex & O’s exploration and production segment was operated as part of BP’s overall exploration and production business, and its refining segment was operated as part of BP’s overall refining business, etc.

One of the properties owned by BP Ex & 0 was the Alliance refinery in Belle Chasse, Louisiana. As part of the 1998 annual strategic planning performed by BP and all of the global subsidiaries, the decision was made to examine all of the refineries under BP’s umbrella to see which of them best fit the companies’ overall strategic goals. That evaluation process ultimately led to BP Ex & O’s sale of the Alliance refinery in 2000.

In 2004, the Department conducted an audit of the income tax returns filed by |SBP Ex & O for the years 1998, 1999, and 2000. That audit revealed that BP Ex & O had treated the proceeds from the sale of the Alliance refinery as apportionable income, on which taxes would be paid on a proportionate basis to all of the states in which BP Ex & O was doing business. The Department determined that those proceeds should have been designated as allocable income, and because the refinery was situated in Louisiana, all the taxes on the $496,342,655 gain should have been paid to Louisiana. BP Ex & O paid the additional taxes due, plus interest, under protest and filed this suit, challenging the Department’s reclassification of the gain from the Alliance refinery sale as allocable income and seeking a refund of the taxes paid under protest. Eventually the parties filed cross-motions for partial summary judgment on this issue. Following a hearing, the court denied the Department’s motion and granted BP Ex & O’s motion, concluding that the Alliance refinery sale was made in the regular course of BP Ex & O’s business and its proceeds were, for that reason, apportionable income. This appeal followed.

DISCUSSION

A motion for summary judgment is a procedural device used when there is no genuine issue of material fact for all or part of the relief prayed for by a litigant. Duncan v. U.S.A.A. Ins. Co., 06-363 (La.11/29/06), 950 So.2d 544, 546; see LSA-C.C.P. art. 966. A summary judgment is reviewed on appeal de novo, with the appellate court using the same criteria that govern the trial court’s determination of whether summary judgment is appropriate, ie., whether there is any genuine issue of material fact and whether the movant is entitled to judgment as a matter of law. Samaha v. Rau, 07-1726 (La.2/26/08), 977 So.2d 880, 882-83. The summary judgment procedure is favored and is designed to secure the just, speedy, and inexpensive determination of every action. LSA-C.C.P. art. 966(A)(2). A motion for summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there 14is no genuine issue of material fact and that mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(B).

There are no contested issues of material fact in this case. The issue is solely one of law, namely, whether the proceeds from BP Ex & O’s sale of the Alliance refinery should be classified for Louisiana corporate income tax purposes as apportionable income or as allocable income.

Under Louisiana corporate income tax law, all items of gross income, not otherwise exempt, are to be segregated by the taxpayer into two general classes designated as allocable income and apportionable income. LSA-R.S. 47:287.92(A); see Unocal Pipeline Co. v. Kennedy, 03-1946 and 1947 (La.App. 1st Cir.12/30/04), 898 So.2d 395, 398, writ denied, 05-0894 (La.6/3/05), 903 So.2d 458. The classification of income determines the method of taxation for such income. Allocable income is allocated for tax purposes directly to the state where the income is earned or derived, while apportionable income is subject to taxation in Louisiana based on an apportionment percentage regardless of where such income is derived. See LSA-R.S. 47:287.93 and 47:287.94. Therefore, Louisiana taxes allocable income only if earned in Louisiana, whereas Louisiana taxes a percentage of all apportionable income without regard to its geographic source. Apportionable income is the default category, inasmuch as it includes all items of gross income not properly included in allocable income. LSA-R.S. 47:287.92(0); Dow Hydrocarbons & Resources v. Kennedy, 96-2471 (La.5/20/97), 694 So.2d 215, 216; Unocal, 898 So.2d at 399.

Only certain specific classes of gross income described in LSA-R.S. 47:287.92(B) are to be designated as alloca-ble income. At all times relevant to this proceeding, |fiallocable income included:

Profits or losses from sales or exchanges of property, including such items as stocks, bonds, notes, land, machinery, and mineral rights not made in the regular course of business. [Emphasis added.]

LSA-R.S. 47:287.92(B)(2). Additionally, LSA-R.S. 47:287.93(A)(1) stated, in pertinent part, that “profits or losses from sales and exchanges of capital assets consisting of immovable or corporeal movable property shall be allocated to the state where such property is located at the time the income is derived.” Paragraph (A)(3) of LSA-R.S. 47:287.93 clarified that “profits or losses from sales or exchanges not made in the regular course of business ... shall be allocated to the state where such property is located at the time of the sale.” [Emphasis added.] Louisiana Administrative Code, Title 61, § L1130.A.3 (Regulation 1130) provides guidance for the definition of “regular course of business,” stating, in pertinent part:

Whether a sale or exchange is a sale not made in the regular course of business is a factual determination required to be made with respect to each property sold which will take into consideration such factors as the frequency of sales of similar properties and the relationship of the particular sale to other business transacted by the taxpayer.

The Department contends that BP Ex & O’s regular business was exploration for oil and gas, as well as refining and marketing petroleum products; it was not in the business of buying and selling refineries for profit. The Department relies on a regulation promulgated by it, La. Admin. Code, Title 61, § I.1134.D.2 (Regulation 1134), which states that sales of “property acquired for use in the production of income” are not considered sales made in the regular course of business, and further relies on its stated policy of designating as allo-cable all income from sales of any property that was used to produce the products that are sold in the regular course of the taxpayer’s business. Finally, the Department contends that the facts of this case mandate the conclusion that the sale of the Alliance refinery was not in the regular course of BP Ex & O’s business, because it was part of an asset divestiture program and was a onetime sale of the entire business operation, including an agreement with the purchaser |6to retain 90% of BP Ex & O’s employees at the Alliance refinery.

In order for this court to determine whether the sale of the Alliance refinery was or was not made in the regular course of BP Ex & O’s business, it is necessary to examine the factual circumstances surrounding BP Ex & O’s business and this particular sale, taking into consideration the factors described in Regulation 1130. We note first that the Department admitted that when it decided to reclassify the Alliance refinery sale as one resulting in allocable income, it did not conduct any inquiry or make any factual determination based on the factors in this regulation. Rather, the Department simply applied Regulation 1134, which states that the sale of any property that was acquired and used for the production of the taxpayer’s products would be considered a sale not made in the regular course of business and would be taxed as allocable income, regardless of the facts surrounding such a sale. As applied by the Department, Regulation 1134 ignores the language of LSA-R.S. 47:287.92(B)(2) and 47:287.93, both of which state that only the profits from sales not made in the regular course of business are to be taxed as allocable income. Used in this way, the Department creates a definition in Regulation 1134 that undermines the statutory mandate to consider the regular course of business in determining whether or not a sale results in alloca-ble income. Also, the Department thereby ignores Regulation 1130, which requires that a factual determination be made. An administrative construction cannot be given effect where it is contrary to or inconsistent with the legislative intent of the applicable statute. Sales Tax Dist. No. 1 v. Express Boat Co., Inc., 500 So.2d 364, 370 (La.1987); see also Farmer's Seafood Co., Inc. v. State ex rel. Dept. of Public Safety, 10-1746 (La.App. 1st Cir.2/14/11), 56 So.3d 1263, 1272 (Regulations promulgated by an agency may not exceed the authorization delegated by the legislature). Therefore, we believe the Department’s reliance on Regulation 1134 is misplaced, and it failed to consider the relevant factors when it reclassified the gains from the Alliance refinery sale as allocable income.

Allen A. Kozinski, who, in the year 2000, was the group vice president for BP’s 17global refinery segment, testified as a fact witness concerning the sale and, in connection with his deposition testimony, also provided an expert report entitled, “Setting a Refining Strategy.” He stated that within the corporation, BP was organized into three main business segments: refining, marketing, and chemicals. In conjunction with its subsidiaries, the company conducted a strategic study each year to come up with a five-year strategic plan. As part of that study, the profitability of the refining segment was evaluated, and it was determined that this area was the most volatile portion of the corporate earnings and that refining was a low return/high capital commodity business. BP considered, and rejected, a spin-off of the entire refining business, and ultimately decided, based on input from its subsidiary companies, to examine the refineries through three “lenses” to see if they met the companies’ long-term strategic goals. BP needed the refineries to provide feed-stocks for its chemical business, to dispose of some unique crude oil that it sometimes acquired, and to supply product for the retail gasoline marketing segment. When the Alliance refinery was examined through these lenses, it did not meet BP’s criteria, and the decision was made to sell it, because it was simply not needed in the system. In a similar fashion, all the assets of the subsidiaries were examined during each annual strategic planning process, to see which properties might be sold in order to maximize profits. Generally, BP expected to generate about $1 billion in income from divestments in any given year, and would re-invest that money within the companies to improve operations for a better return.

The sale of the Alliance refinery was not of fixed assets only, but was the sale of an operating business, including the people, the training, the records, the inventory, the underground piping, the equipment drawings, and the computer programs to run the business. However, neither BP Ex & 0 nor BP went out of the refining business as a result of this sale. Following the 1998 merger with Amoco, BP had sole or joint ownership of twenty-three refineries. It sold five, including the Alliance refinery, in connection with its 2000 strategic plan, bought some additional North American |srefineries when it later acquired ARCO, and also bought the entire German refining capacity of EON in order to expand its European marketing presence. Kozinski stated that the type of regular strategic planning conducted by BP and its subsidiaries was a common and necessary business practice among all the major corporations engaged in petroleum exploration, production, refining, and marketing, enabling them to make major acquisitions and divestments in order to meet their long-term goals. He said that without such strategic planning, “[w]e would be running like the government.”

The evidence included the testimony of Robert James Day, a 27-year BP employee whose duties over that period included virtually all aspects of the business, culminating in the position of president of Eastern Gulf Coast fuels marketing. He confirmed much of Kozinski’s testimony concerning the overall structure of BP, and stated that the company had a “very clear business view that all our assets are under continual review in terms of the nature of what our strategy may be with those assets.” He stated that since the late '80’s, through its various subsidiaries, BP had acquired whole or part interests in about twenty refineries and since then had sold about nineteen. He said there was a constant process of looking at the changing nature of supply and demand, seeing how different assets within each company’s portfolio stacked up when viewed through whatever lens was being used to make decisions. Day stated that BP had generally acquired refineries through wider acquisitions of other companies. After the Amoco merger, BP decided on three lenses it wanted to use in order to evaluate and maximize the long-term health of the refining portfolio worldwide. The sale of the Alliance refinery was part of the execution of that global strategy, and coincided with an overall company objective to reduce refining exposure. He explained that BP Ex & 0 did not have a separate business strategy from the other companies within the BP umbrella. Day also said that although neither BP Ex & 0 nor any other company in the energy industry looked at its assets as properties to buy, hold for a while, and then sell for a profit, each of the BP companies made constant efforts to provide that it had “the right asset in the right place producing the right products in the Rright manner for the long term.” With reference to the planning that resulted in the sale of the Alliance refinery, he stated that this was not something that happened only as a result of the Amoco acquisition, but was “a standard part of doing business.” The BP group chief executives’ meetings, in which these analyses were reviewed and policy decisions were made, were held every one or two weeks.

The Department did not contest any of the factual information provided by BP Ex & 0. Rather, the Department argued that its established policy was that in order for a sale to be in the “regular course of business,” it had to be a sale of an asset of the type that was usually sold in that taxpayer’s usual line of business. For BP Ex & 0, that might include the sale of chemicals, oil, and gas, but would not include the sale of any asset used to produce any of those products. We reject this analysis. As stated in Regulation 1130, whether a sale is “not made in the regular course of business” is a factual determination to be made by considering such factors as the frequency of sales of similar properties and the relationship of the particular sale to other business transacted by the taxpayer. The evidence in this case shows that BP and its subsidiary companies continually review all of their assets to determine how well each of them fits into the companies’ overall strategic goals. Based on those reviews, decisions concerning acquisitions and divestitures are made and implemented. The sale of the Alliance refinery was not a one-time event; over the years, BP has bought and sold many refineries as part of its overall business. This sale did not take BP Ex & 0 out of the refining business or terminate that segment of its operations; its refining operations continued in other locations and were expanded to meet market needs. The gain from the sale was invested in other aspects of BP’s overall business; it was not distributed to shareholders, as would be the case in a liquidation.

There are no reported Louisiana cases addressing the precise issue before this court in this case. However, in a similar factual situation and applying similar corporate income tax statutes, a Pennsylvania court concluded that the capital gain from the sale of a manufacturing facility was apportionable business income to be paid to all the Instates in which the taxpayer was doing business. See Welded Tube Co. of America v. Commonwealth, 101 Pa. Cmwlth. 32, 515 A.2d 988 (1986). The Pennsylvania corporate income tax statutes, like the Louisiana statutes at issue in this case, established a system for the determination of allocation and apportionment of net income of corporations engaged in taxable activities within and without the Commonwealth Id. at 992. All income arising from transactions and activities in the regular course of the taxpayer’s trade or business was subject to apportionment, whereas non-business income, defined as “all income other than business income,” was allocated to the situs of the income-producing property. Id. at 993. After examining the frequency and regularity of similar transactions in past practices of the business and the subsequent use of the income (the transactional test), as well as whether the acquisition, management, and disposition of the property constituted an integral part of the taxpayer’s regular trade or business (the functional test), the court concluded that under either test, the capital gains from the sale of an entire manufacturing facility by the taxpayer were apportionable income, even though such a sale had only occurred twice in the company’s history. The court stated that “it makes no difference whether income derives from the main business, the occasional business or the subordinate business so long as the income arises in the regular course of business.” Id. at 994. The court further declared that “[wjhile the principal business of the taxpayer comprised the manufacture of welded tube, it was a regular practice of this taxpayer to acquire property in the expansion of its business. We conclude that such property constituted an integral part of its business operations and that its disposition generated business income.” Id. We find that the analysis set forth by the Pennsylvania court tracks what is required by Regulation 1130, and the decision of that court offers support to the conclusion that BP Ex & O’s sale of the Alliance refinery in this case also generated appor-tionable income.

It is clear from the evidence in this case that the sale of the Alliance refinery was a type of business transaction that was a regular practice of BP Ex & 0 and the BP global | ¶ Refinery segment. Moreover, the sale was directly related to its overall business, since it was designed to streamline the refining operations, so that those operations better served the current needs of all segments of the business and met BP’s strategic goals. Consequently, we conclude, as did the trial court, that the sale of the Alliance refinery was made in the regular course of BP Ex & O’s business. As such, the income from that sale was properly designated as apportionable for corporate income tax purposes.

CONCLUSION

For the above reasons, the judgment of the trial court is hereby affirmed. All costs of this appeal, in the amount of $13,008.50, are assessed to the Department.

AFFIRMED.

      . BP Products North America, Inc. is the successor in interest to BP Exploration & Oil, Inc. It is one of over one hundred companies within the ambit of the parent company, BP, pic (BP), which is headquartered in the United Kingdom and operates globally through these subsidiaries. For the purpose of this opinion, we will not distinguish between BP Products North America, Inc. and BP Exploration & Oil, Inc., and will refer only to BP Ex & O.

      . The judgment was designated as final by the district court on joint motion of the parties, and our review finds no error in that designation under the facts of this case.

      . The Department also reclassified some other items of BP Ex & O's income, such as dividends, interest income, and rental income. The classification of those items is not involved in this appeal.

      . The applicable versions of the relevant tax statutes, comprised of LSA-R.S. 47:287.2 through 287.785, were enacted by 1986 La. Acts, 1st Ex.Sess., No. 16, § 1. A 1992 amendment did not change the substance of these provisions. However, a 1993 amendment significantly revised these statutes. See 1993 La. Acts, No. 690, § 1 (Act 690). In the Dow case, 694 So.2d at 216, the Louisiana Supreme Court declared Act 690 unconstitutional, stating:
      Because Act 690's reclassification results in an increase in corporate income tax, and because Act 690 was enacted in 1993, we find that Act 690 increases an existing tax in an odd-numbered year in violation of Article III, Section 2(A) of the Louisiana Constitution.
      Therefore, the applicable versions of these statutes are as enacted in 1986 and amended in 1992.

      . This opinion refers only to the applicable versions of the relevant regulations.


author: GAIDRY, J.

text:
    James A. WILSON and Brenda M. Wilson v. STATE of Louisiana, through DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT.
    No. 2011 CA 0007.
    Court of Appeal of Louisiana, First Circuit.
    Aug. 25, 2011.

      C. John Naquin, Danial C. Vidrine, Baton Rouge, LA, for Plaintiffs/Appellants James A. Wilson and Brenda M. Wilson.
    James D. “Buddy” Caldwell, Attorney General, Thomas A. Lane, Elena P. Bran-zaru, Assistants Attorney General, Baton Rouge, LA, for Defendant/Appellee State of Louisiana, through Department of Transportation and Development.
    Before CARTER, C.J., GAIDRY and WELCH, JJ.
   GAIDRY, J.

|2In this suit for injuries arising out of an automobile accident, the plaintiffs appeal a trial court judgment in favor of the defendant. We affirm.

FACTS AND PROCEDURAL HISTORY

This suit arises from an automobile accident which occurred on August 7, 2002 in which James Wilson made a left turn into the path of an oncoming car, causing a collision from which he sustained serious injuries. Mr. Wilson and his wife, Brenda, filed this suit against the Louisiana Department of Transportation and Development (“DOTD”), alleging that DOTD was negligent in the installation of lane delinea-tors on Essen Lane in the area of the 1-10 overpass because those lane delineators blocked motorists’ view of oncoming traffic, and that DOTD’s negligence caused his accident.

After a trial, the jury returned a verdict in favor of DOTD, finding that DOTD was not negligent or its negligence did not cause the accident. Mr. Wilson filed a motion for JNOV or for new trial, which was denied by the court. Mr. Wilson then filed the instant devolutive appeal, asserting that the jury’s conclusion that DOTD was not negligent was not supported by the evidence, that the court erred in permitting the defendant to introduce the affidavit of Chris Marchiafava into evidence, and that the court erred in allowing the DOTD’s expert, Mike James, Jr., to testify regarding facts of which he had no personal knowledge.

DISCUSSION

In their first assignment of error, the Wilsons allege that the jury’s finding that DOTD was not negligent or that their negligence did not cause the accident was not supported by the evidence and thus was manifestly erroneous.

|oA determination of negligence or fault is a factual determination. In order to reverse a factual determination by the trier of fact, the appellate court must apply a two-part test: (1) the appellate court must find that a reasonable factual basis does not exist in the record for the finding; and (2) the appellate court must further determine that the record establishes that the finding is clearly wrong (manifestly erroneous). Stobart v. State, through Dep’t of Transp. & Dev., 617 So.2d 880, 882 (La.1993). Further, when factual findings are based upon determinations regarding the credibility of witnesses, the manifest error standard demands great deference to the trier of fact’s findings. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. Id.

The basis for the Wilsons’ claim that DOTD was negligent was that the lane delineators, as installed, blocked the view from the southbound left turn lane of the headlights of vehicles travelling northbound on Essen Lane, causing him to pull out in front of Barbara White’s oncoming vehicle. DOTD alleged that it was not negligent in installing the lane delineators, that they did not block drivers’ view of oncoming traffic, and alternatively that on the night of the accident, Mr. Wilson’s view of Ms. White’s oncoming vehicle was more likely blocked by the presence of several cars in the northbound left turn lane.

Mr. Wilson testified that prior to the accident, he pulled into the southbound left turn lane to enter the interstate and stopped at the red light. He did not recall there being any cars in the northbound left turn lane. When |4his light turned green, he proceeded to make a permitted left turn (he did not have a green arrow) in order to get onto the interstate. Although Mr. Wilson has no recollection of the accident itself or of events for some time thereafter, he testified that he did not see any oncoming traffic or headlights before the accident. He did not know if the delineators alongside the northbound left turn lane blocked his view of Ms. White’s headlights, but he believes they did because it is the only explanation for the accident; he testified that he would not have turned in front of an oncoming car if he could see it.

Michael Gauthier, one of the Baton Rouge Police officers who investigated the accident, testified at trial that he did not issue a citation to Mr. Wilson for the accident because it was within his discretion to do so and he did not want to “add insult to injury” by issuing a citation to an injured party, and also because he believed that a vision obscurement by the lane delineators caused the accident. He testified that although the accident report, signed by him, says that Mr. Wilson failed to yield and that there was no vision obscurement, that part of the accident report was completed by another officer on the scene. He testified that he had investigated similar accidents at that same location where he was told by the drivers that they could not see the oncoming vehicle before the collision, and he had spoken to his supervisors at some time about his belief that this intersection was unsafe.

Olin Dart, a traffic engineer and accident reconstructionist, provided expert testimony at trial as to what effect the lane delineators would have on the visibility from the southbound left turn lane of headlights of oncoming vehicles in the northbound lanes. He testified that Ms. White’s headlights were about ten inches below the top of the delineators. Furthermore, | .¡although the delineators were spaced 32 inches apart, it was his opinion that because of Mr. Wilson’s viewing angle from his position in the southbound left turn lane, it was also impossible for him to see Ms. White’s headlights through the delineators. Mr. Dart acknowledged on cross-examination that there was nothing in the Manual on Uniform Traffic Control Devices which recommends against lane delineators. Furthermore, he acknowledged that if there were cars in the northbound left turn lane, the cars would have obstructed Mr. Wilson’s view of Ms. White’s oncoming car, regardless of the presence of the lane delineators.

Ingolf Portenheimer, chief traffic engineer for the City of Baton Rouge-Parish of East Baton Rouge, testified that given traffic patterns, he believed that it was unlikely that there were several cars in the northbound left turn lane at the time of the accident.

Ms. White, the driver of the other car involved in the accident, testified that the lane delineators were not so high that she could not see over them and that they did not block her view of the other lanes. She testified that she saw headlights coming towards her as she approached the intersection, although she could not know for certain if the headlights she saw were from Mr. Wilson’s vehicle or from other vehicles traveling southbound on Essen, and she assumed that any cars in the southbound left turn lane would yield since she had a green light. The first time she specifically saw Mr. Wilson’s car was when he pulled out in front of her and she hit him.

Chris Marchiafava witnessed the accident while stopped at the red light on the interstate exit ramp. He testified at trial that Ms. White had the green light and Mr. Wilson turned in front of her. As soon as the accident happened, Mr. Mar-chiafava looked to make sure he could drive into the ^intersection safely, and then he pulled into the intersection to check on the drivers of the cars involved in the accident. He testified that there were several cars in the northbound left turn lane when he looked immediately after the accident before pulling into the intersection. Although he did not recall mentioning the presence of these vehicles to the officers investigating the accident, he testified as to their presence in his affidavits in 2006 and at trial. Although he was not certain exactly how many cars were present in the northbound turn lane at the time of the collision, as opposed to cars piling up after the wreck happened, he testified that he was certain that some of them were there at the time of the wreck because he remembered seeing them and avoiding them when he pulled into the intersection immediately following the collision.

DOTD’s expert in accident reconstruction, Mike James, Jr., testified that although Mr. Wilson could not have seen the headlights on Ms. White’s vehicle, he could have seen the light shining through the lane delineators and could also have seen the light shining above the delineators. Alternatively, if there were in fact cars in the northbound left turn lane, those cars would have blocked Mr. Wilson’s view of the lane delineators themselves, as well as Ms. White’s headlights.

After trial, the jury answered the question on the verdict form, “Do you find State of Louisiana, through the Department of Transportation and Development, was negligent, and that negligence caused or contributed to the automobile accident?” by checking “NO.” After a careful review of the evidence contained in the record, we cannot say that a reasonable factual basis for the jury’s finding that DOTD was not negligent does not exist in the record, nor can we say that the jury was clearly wrong in so finding. The jury was faced with conflicting views of the evidence regarding whether a |7person sitting in a vehicle in the southbound left turn lane could see the headlights of cars in the northbound lanes, and clearly chose to believe the testimony that either Mr. Wilson’s view was not obstructed or was obstructed by cars in the northbound left turn lane. A factfinder’s choice between two conflicting views of the evidence cannot be clearly wrong. This assignment of error is without merit.

In their second assignment of error, the Wilsons argue that the court erred in permitting the introduction, over the objection of the plaintiffs, of Chris Mar-chiafava’s affidavits regarding the presence of cars in the northbound left turn lane. However, the plaintiffs did not contemporaneously object to the introduction of the affidavits. To preserve an eviden-tiary issue for appellate review, it is essential that the complaining party enter a contemporaneous objection to the evidence or testimony and state the reasons for the objection. See Etcher v. Neumann, 00-2282, p. 13 (La.App. 1 Cir. 12/28/01), 806 So.2d 826, 838, writ denied, 02-0905 (La.5/31/02), 817 So.2d 105. Since plaintiffs failed to contemporaneously object to the admission of Mr. Marchiafava’s affidavit, they waived the right to contest it on appeal. La. C.E. art. 103. This assignment of error is without merit.

In their final assignment of error, the Wilsons allege that the court erred in allowing DOTD’s expert in accident reconstruction, Mike James, Jr., to testify regarding facts of which he had no personal knowledge. The Wilsons argue that by “gratuitously drawing vehicles in the turn lane on his scaled drawing, and testifying from the drawing, Mr. James was essentially leading the jury to believe that there were in fact vehicles present in the turn lane opposite of Mr. Wilson at the time of the accident.” The plaintiffs mischaraeterize Mr. James’s testimony in this argument. Whether or not |8there were vehicles in the northbound left turn lane at the time of the accident was a contested issue. Mr. James gave an opinion as to whether Mr. Wilson’s vision was obstructed in two different situations — one with cars present in the northbound left turn lane, and one with no cars present in the northbound left turn lane. This testimony created no confusion for the jury, and the assignment of error is without merit.

CONCLUSION

As we have found all of appellants’ assignments of error lacking in merit, the judgment appealed from is affirmed. Costs of this appeal are assessed to plaintiffs-appellants, James and Brenda Wilson.

AFFIRMED.

      . On the date of the accident, Essen Lane in Baton Rouge had lane delineators installed along the left turn lanes in both directions at the I-10 entrance. Mr. Wilson’s suit alleges that the lane delineators alongside the northbound left turn lane blocked his view from the southbound left turn lane of the headlights of cars travelling in the northbound lanes.

      . The accident occurred after dark.