author: PATRICIA RIVET MURRAY, Judge.

text:
    Duncan MOLONY v. Meredith HARRIS.
    No. 2010-CA-1316.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 23, 2011.

      Mitchell J. Hoffman, Kim Ngan Nguyen, Lowe Stein Hoffman Allweiss & Hauver, L.L.P., New Orleans, LA, for Plaintiff/Appellant.
    Cynthia A. De Luca, Martha J. Maher, Rebecca deMahy, Cynthia A. De Luca, APLC, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge, EDWIN A. LOMBARD, Judge, PAUL A. BONIN).
   PATRICIA RIVET MURRAY, Judge.

|! This is a contentious child custody dispute. Duncan Molony appeals the trial court’s judgment awarding him and his former spouse, Meredith Harris, joint eus-tody of their minor child and designating the parties as co-domiciliary parents. For the reasons that follow, we affirm the joint custody award, reverse the trial court’s co-domiciliary designation, and remand for either the designation of a domiciliary parent or the issuance of an implementation order allocating the parties’ decision-making responsibilities. On remand, we also order that the trial court consider appointing a parenting coordinator pursuant to La. R.S. 9:358.1-9:358.9.

FACTUAL AND PROCEDURAL BACKGROUND

On April 29, 2005, Mr. Molony and Ms. Harris were married. One child was born of the marriage: a boy, CM. CM was born on December 13, 2005; he was four years old when the judgment appealed from was rendered. From a previous marriage to Michael Harris, Ms. Harris has another son, AH. AH was born on February 10, 1999; he was eleven years old when the judgment appealed from was ^rendered. Ms. Harris is AH’s domiciliary parent. She has physical custody of AH during the week, and his father has custody of him on weekends.

Following their marriage, Mr. Molony and Ms. Harris established their matrimonial domicile in New Orleans, although they lived in North Carolina a short period of time following Hurricane Katrina. They returned to New Orleans in 2006 and reestablished domicile there. It is undisputed Ms. Harris had an alcohol abuse problem during the period following Hurricane Katrina and CM’s birth. This contributed to the demise of the parties’ marriage and gave rise to this custody dispute.

On November 14, 2008, Mr. Molony filed for a divorce from Ms. Harris alleging that she had an “alcohol dependency problem.” He further alleged that he “has been the primary care giver for [CM] since his birth.” He requested emergency, temporary sole custody of CM or that he be designated the domiciliary parent and Ms. Harris be allowed supervised visitation. He further requested that Ms. Harris be ordered to submit to random alcohol and drug screenings.

Ms. Harris answered and filed a recon-ventional demand seeking joint custody and designation as the domiciliary parent. She alleged that she had been CM’s primary caretaker since his birth, that she was capable of caring for the child, and that she was not a danger to CM or AH. In support of those allegations, she attached a copy of a letter from her therapist, E. Taylor Aultman, Jr., L.C.S.W., in which Mr. Aultman opined that Ms. Harris, who was attending AA meetings and undergoing weekly therapy, was “a devoted mother” and was not “a danger to her children in any way.”

On December 4, 2008, the trial court entered an interim consent judgment (the “Consent Judgment”) ratifying the parties’ agreement regarding temporary | ¡¡shared physical custody of CM. The Consent Judgment awarded physical custody to Mr. Molony except for a period from 8:00 p.m. on Tuesday until 8:00 a.m. on Wednesday each week. The judgment authorized Mr. Molony to remove CM from the custody of Ms. Harris whenever he believed, based upon observable evidence, that Ms. Harris was under the influence of alcohol or drugs. The judgment ordered Ms. Harris to attend daily AA meetings and to continue her weekly therapy. Finally, the court ordered that Dr. Ellen Gandle, a mental health professional, perform an evaluation, pursuant to La. R.S. 9:331, to assess issues of custody, visitation, and alleged substance abuse by Ms. Harris. The parties were also ordered to meet within thirty days of the date of the hearing to reevaluate the current physical custody schedule.

On January 8, 2009, Ms. Harris filed an Emergency Rule to Modify Visitation. She alleged that the parties had met, but Mr. Molony had refused to provide her with a reasonable increase in visitation. Testimony, which was taken on this issue on January 30, and February 2, 2009, was summarized by the trial court in its reasons for judgment:

Ms. Harris has a history of alcohol abuse and mental health issues predating the filing of the petition for divorce. Ms. Harris’ therapist, Mr. Aultman, has been treating Ms. Harris since March 15, 2007. Mr. Aultman diagnosed Ms. Harris with Alcohol Abuse, Adjustment Disorder with depression and anxiety. She is on Klonipin and Lexapro which were prescribed by Dr. Barnes.
Mr. Aultman, the only mental health professional who testified, opined that he did not feel that Ms. Harris was incapable of managing her two children nor did he believe that Ms. Harris would pose a danger to [CM] or [AH]. Mr. Aultman noted that prior to this divorce action, Ms. Harris had tried to stop drinking but could not sustain her alcohol abstinence. However, he believes Ms. Harris’ current efforts are sincere based upon his treatment of her and his experience with alcohol abusers. He also cited her continued AA attendance. |4Ms. Harris admits she is an alcohol abuser. She testified that she has been sober since November 16, 2008, and has been attending daily AA meetings from two-to-three times per day. Ms. Harris’ AA attendance was corroborated by two AA attendees and Ms. Harris’ sponsor. Ms. Joan Ellen Young, an addiction recovery resource therapist, described Ms. Harris as a loving mother. Ms. Young testified that she babysits [AH] while Ms. Harris attends her AA meetings. Michael Harris, Ms. Harris’ first husband and the father of [AH], testified that he has no concerns about Ms. Harris’ sobriety when she has their minor son. According to Mr. Harris, [AH] has never voiced any concerns about his mother’s behavior. Mr. Molony testified that he separated from Ms. Harris because of her alcohol abuse. Mr. Molony believes that Ms. Harris loves their son; but, he is concerned that she may endanger [CM] by falling “off the wagon.” Mr. Molony described Ms. Harris’ past acts of drunkenness, including an incident where he videoed Ms. Harris on the floor next to bed with [CM] asleep next to her. Mr. Molony could not cite to any examples of child endangerment since Ms. Harris began her self imposed sobriety. Ms. Harris has had [CM] on two overnight visits every week since December 4, 2008, without incident.

On February 2, 2009, the trial court rendered judgment finding it was in CM’s best interest for him to “spend more time with his mother.” The trial court thus modified the physical custody schedule by ordering that Ms. Harris' be allowed to pick CM up from day care on Tuesdays and Wednesdays and to return him to day care the following day. He also ordered that she have visitation on alternating weekends. The order also provided that Ms. Harris continue attending daily AA meetings as well as continue her therapy with Mr. Aultman and Dr. Barnes.

In January 2010, Dr. Gandle issued her report and recommendation. In performing the custody evaluation, Dr. Gandle interviewed the parties (Mr. Molony and Ms. Harris), Dr. Barnes (Ms. Harris’ psychiatrist), Mr. Aultman (Ms. Harris’ therapist), Sarah Molony (Mr. Molony’s sister with whom he lives), UMarian Lebeau (Ms. Harris’ AA sponsor), Mr. Harris (Ms. Harris’ former husband), and two of CM’s day care teachers.

As part of the evaluation, Dr. Gandle’s assistant, Gina Manguno-Mire, Ph.D., administered psychological testing to both parties. As to Mr. Molony, the testing showed no mental health disorder. As to Ms. Harris, the testing showed she had symptoms of alcohol abuse and anxiety disorder not otherwise specified. Dr. Mire noted that Ms. Harris did not suffer from a gross psychiatric or cognitive impairment. She further noted that Ms. Harris had a tendency to minimize some of her present difficulties and symptoms particularly with regard to her alcohol use. She still further noted that Ms. Harris’ “role as a substance abuse counselor has the potential to allow her to intellectualize or minimize her current difficulties and this should be avoided.” Finally, she noted that “[i]n the event that [Ms. Harris] maintains her abstinence from alcohol and illicit substances, she is likely to fulfill her major role obligations.”

In her report, Dr. Gandle made the following recommendations:

• Duncan Molony and Meredith Harris continue to share joint custody with shared physical custody of [CM]. [CM] is at an age where he can tolerate a couple of days away from one parent so the arrangement may want to change to reflect this. Daily telephone contact with the other parent is important unless they are somewhere that is not possible i.e. out of the country. Holidays and the summer should continue as is already established. There is not currently any compelling evidence to suggest that one parent should have sole custody. It is in [CM]’s best interest to have frequent access to both parents at this time.
• [CM] should ideally maintain the same routine at each house. He should go to bed at the same time, sleep in his own bed unless there is a clear reason not to and should be put in pull-ups or underwear to foster toilet training. Both parents must comply with the school regarding toilet training especially because it is hindering his ability to move up to an age appropriate class.
le* The parents may benefit from a facilitator who could work with them on implementing their arrangement and' encourage the consistency needed here. This should be someone who would be comfortable communicating with the court should serious concerns arise or there is a clear lack of consistency at one of the house holds.
• Ms. Harris should continue in treatment with Dr. Barnes and Mr. Ault-man to address her mental health issues and maintain her sobriety. She should ideally attend daily AA meetings to help with her recovery. As accountability is an issue and in light of Mr. Molony’s concerns, I would recommend a method by which accountability could be enhanced regarding Ms. Harris’s alcohol use. Options include frequent but random drug testing (perhaps hair instead of urine) or utilizing a device such as the car breathalyzer system. Should it become apparent that Ms. Harris is using alcohol then I would recommend Mr. Molony assume sole custody of [CM] until the court deems her capable of safely having him back in her custody. If this occurs, I would also recommend she enter either an inpatient treatment program or an intensive day treatment program. Obviously it is in [CM]’s best interest that his mother remain in recovery.
• No one should smoke around [CM] considering his history of asthma.
• Each party should foster [CM]’s relationship with the other parent. No disparaging remarks about either parent should be made in the presence of [CM]. This applies to extended family and friends.

On March 5, 2010, Ms. Harris filed a motion to set hearing on final custody and visitation. On June 17, 2010, the hearing on Ms. Harris’ Rule for Custody was held. At the hearing, the following four witnesses testified: Mr. Molony; Ms. Harris; Ms. Harris’ first husband, Mr. Harris; and the court-appointed evaluator, Dr. Gandle. The depositions of Ms. Harris’ therapist, Mr. Aultman, and her psychiatrist, Dr. Barnes, were introduced. Mr. Aultman’s therapy records also were introduced.

|7On June 28, 2010, the trial court rendered judgment concluding that based on the factors set forth in La. C.C. art. 134 it is in CM’s best interest for the parties to have a shared joint custody arrangement and be designated co-domiciliary parents. The trial court thus rendered judgment on Ms. Harris’ Rule for Custody ordering that:

• The parties shall have shared joint custody of the minor child, [CM];
• The parties shall alternate physical custody on a week on week off basis, from Sunday at 6:00 p.m. until the following Sunday at 6:00 p.m., beginning with Ms. Harris on July 4, 2010. Each party shall be responsible for picking up the minor child before their respective visitation begins.
• The parties are designated co-domiciliary parents and shall communicate as it relates to the health, education, and welfare of the minor child.
• Ms. Harris shall no longer be required to produce her AA attendance records.
• Ms. Harris shall continue her therapy with Mr. Aultman and her medication management with Dr. Barns [sic].
• Mr. Aultman shall no longer be required to share' his reports, regarding Ms. Harris’s treatment with Mr. Molo-ny or his counsel.
• Neither party shall listen to the other parent’s phone calls with [CM].

This appeal by Mr. Molony followed'.

DISCUSSION

The paramount consideration in any determination of child custody is the best interest of the child. Evans v. Lungrin, 97-0541, 97-0577, p. 12 (La.2/6/98), 708 So.2d 731, 738; see La. C.C. art. 131. In determining the best interests of the child, the trial court is required to consider the twelve, nonexclusive factors set forth in La. C.C. art. 134. Nonetheléss, the trial court is not required to analyze | ^mechanically all of the dozen factors; rather, the court should balance and weigh the factors in view of the evidence presented. Palazzolo v. Mire, 08-0075, p. 37 (La.App. 4 Cir. 1/7/09), 10 So.3d 748, 769-70. The trial court has the discretion to determine the relative amount of weight each factor should be given. Mire v. Mire, 98-1614, pp. 3-4 (La.App. 4 Cir. 3/24/99), 734 So.2d 751, 753.

The best interest of the child determination under La. C.C. arts. 131 and 134 is a fact-intensive inquiry, requiring the weighing and balancing of the factors in favor and in opposition of awarding custody to the competing parties on the basis of the evidence presented in the particular case. Martello v. Martello, 06-0594, p. 5 (La.App.1Cir.3/23/07), 960 So.2d 186, 191. Thus, in custody cases the trial court’s determinations generally are based heavily on factual findings. Palazzolo, 08-0075 at p. 34, 10 So.3d at 768 (citing Richardson v. Richardson, 07-0430 (La.App. 4 Cir. 12/28/07), 974 So.2d 761). An appellate court cannot set aside a trial court’s factual findings in the absence of manifest error or unless those findings are clearly wrong. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). When the factual findings are based on the credibility of witness’s testimony, the fact finder’s Indecisión to credit a -witness’s testimony must be given great deference by the appellate court. Id.

“The appellate courts- have reiterated the traditional rule that a trial court’s custody award will not be disturbed absent a manifest abuse of discretion.” La. C.C. art. 134, Revision Comment (b). The rationale behind this traditional rule is that the trial judge is in the best position to ascertain the best interest of the child based on the particular circumstances of the particular case. See McKenzie v. Cuccia, 04-0112, pp. 3-4 (La.App. 4 Cir. 6/23/04), 879 So.2d 335, 338 (citing Thompson v. Thompson, 532 So.2d 101 (La.1988)).

On appeal, Mr. Molony contends that the trial court erred in finding it was in CM’s best interest to grant shared joint custody on a (seven day) week on, week off physical custody schedule; to designate the parties as co-domiciliary parents; and to ignore Dr. Gandle’s recommendations regarding physical custody and the implementation of accountability measures given Ms. Harris’ admitted use of alcohol. Mr. Molony’s contentions can be divided into four issues: joint versus sole custody, physical custody, legal custody (the domiciliary parent designation), and accountability measures. We separately address each issue.

Joint versus sole custody

Joint custody must be ordered absent the parents’ consent to sole custody, a history of family violence, or clear and convincing evidence that sole custody is in the child’s best interest. Snowton v. Snowton, 09-0600, p. 3 (La.App. 4 Cir. 9/30/09), 22 So.3d 1111, 1113. The parent seeking sole custody has the burden of | ^demonstrating by clear and convincing evidence that the granting of sole custody to that parent is in the child’s best interest. La. C.C. art. 132.

In finding that an award of joint custody was in CM’s best interest, the trial court expressly stated that it considered the La. C.C. art. 134 factors. In determining that joint custody should be awarded, the parties agree that the trial court applied the correct legal standard — the best interest of the child. The parties, however, disagree on whether the trial court’s award of joint custody was factually correct. To address this issue, it is necessary to consider the pertinent evidence presented at trial.

Mr. Molony, who is an information security analyst, works mostly out of his home and has a flexible work schedule. He currently resides with his sister, Sarah Molony, on the west bank of New Orleans. He lives about fifteen miles from the day care that CM attends. He drops CM off at day care in the morning. Often his sister, who works on the east bank, picks CM up from day care and brings him home. According to Mr. Molony, he has been CM’s primary caretaker since birth. He has taken CM to almost all of his doctor visits and cared for the child when the child was sick. Mr. Molony indicated that he communicates with Ms. Harris regarding significant matters by either email or text message to both of her cell phones. Mr. Molony agreed that Ms. Harris typically provides him with adequate notice of when she will be out of town.

|uMr. Molony testified that CM has been exhibiting poor behavior, which he described as acting out, throwing tantrums, and difficulty potty training. Although he suggested to Ms. Harris that CM see a child psychologist to address these problems and attempted to schedule an appointment, Ms. Harris refused to allow it until the custody litigation was over.

In addition, Mr. Molony related two incidents that caused him to suspect that Ms. Harris was abusing alcohol again. Neither occurred when Ms. Harris had physical custody of CM. In the first, Mr. Molony called Ms. Harris when she was out of town in February 2009 so that she could speak to CM, but found she was slurring her words and was difficult to comprehend. She then spoke with CM for about ten minutes. However, when Mr. Molony spoke to her the next day, she did not recall having talked to CM on the phone. On another occasion, Mr. Molony became suspicious that Ms. Harris had been drinking after he had spoken to her on the phone while in Orlando, Florida. Because Ms. Harris would not admit to him that she had been drinking on either occasion, Mr. Molony testified that he was unaware that this was occurring until Dr. Aultman’s 2010 deposition. He further testified that her admission to Dr. Aultman substantiated his fears that Ms. Harris had, in fact, been drinking on the two prior occasions that had aroused his suspicion.

In addition, Mr. Molony testified that when he takes CM grocery shopping the child still points to the wine and requests they buy some for his mother. Also, the private investigators he hired to follow Ms. Harris for several days in preparation for the custody trial reported to him that they had seen Ms. Harris buy a bottle of wine from Super Serve and take it home.

| ^Michael Harris, Ms. Harris’ first husband and the father of AH, testified that he and Ms. Harris have an amicable relationship. He sees Ms. Harris often — four to five times a week. Since November 2008, he has not seen her drinking or intoxicated. He testified that Ms. Harris drank when he was married to her, that he knows she goes to AA but that he could not say if she was an alcoholic. Although Ms. Harris told him that she has had an occasion in the past few months to have a glass of wine, Mr. Harris testified this did not cause him any concern regarding AH’s safety. Mr. Harris testified that he has witnessed Ms. Harris interact with both her children — CM and AH — and that she has a good relationship with both. He testified that he has no concerns about Ms. Harris’ ability to parent.

Ms. Harris testified that she works partially from her home, but is required to travel for her job. Although she has some flexibility in her work schedule, she sees clients for scheduled appointments, which places limitations on her flexibility. Ms. Harris testified that she lives on the east bank of New Orleans about a mile from the day care CM attends. Ms. Harris characterized her relationship with Mr. Molony as contentious. She acknowledged that she refused to allow CM to see a child psychologist until after this child custody dispute was completed. She also acknowledged having driven while intoxicated in the past but has not done so since this case began. She denied having ever received a DWI.

Ms. Harris testified that for the nineteen months preceding the custody trial she had complied with the requirements of the Consent Judgment — attending daily AA meetings, producing her AA attendance records (calendar), attending weekly therapy with Mr. Aultman, and seeing Dr. Barnes for medication management. Moreover, she testified that during that nineteen month period she had consumed only one or two glasses of wine on two occasions, both of which occurred while | isshe was out of town for work. Ms. Harris testified that she informed Mr. Aultman about those two occasions.

Ms. Harris acknowledged having received Dr. Gandle’s January 2010 report, which stated that should Ms. Harris use alcohol, it would be recommended that Mr. Molony assume sole custody. When asked why, being aware of that recommendation, she still had drunk wine on. two occasions in 2010, Ms. Harris admitted that she had made a mistake but noted that “it was just one drink with dinner.”

Dr. Gandle, the court-appointed mental health expert, was accepted as an expert in forensic psychiatry. As noted, she had issued her recommendation to the court in January 2010. Dr. Gandle testified that Ms. Harris had provided a history of substance abuse dating back to high school. Dr. Gandle indicated there was no indication Ms. Harris was using any substance besides alcohol. According to Dr. Gandle, Ms. Harris informed her that she had not drunk during her pregnancy with CM, but had resumed drinking when she returned to New Orleans post Katrina, which was a stressful time. Dr. Gandle acknowledged that neither she, nor any of the other experts (Dr. Mire, Dr. Barnes, or Mr. Aultman) had found Ms. Harris to be alcohol dependent.

Dr. Gandle also testified that she did not find any discernable difference between the parties’ houses, that CM was comfortable in both houses, and that he had a good relationship with both parents. Dr.- Gan-dle noted in her report that “Mr. Molony appears to be the better organized parent although there is no concrete evidence that Ms. Harris is unable to care for [CM] and foster his development.” She further noted that “[CM] needs a good, healthy relationship with both parents” and that “[h]e also needs to maintain his sibling relationship with [AH].” Dr. |14Gandle recommended that the parties “should continue to share joint custody” and that “both of them were equally capable of making decisions in [CM]’s best interest.”

At trial, Dr. Gandle emphasized that her recommendations were based on information she had at the time she rendered the report. She further testified that it would be important to have additional information as to whether Ms. Harris had resumed abusing alcohol before “recommending such an extreme change” as awarding sole custody to Mr. Molony. Assuming Ms. Harris had resumed drinking, Dr. Gandle testified that she would have some concerns, especially if the drinking was occurring during the time Ms. Harris had CM.

Dr. Gandle further testified that if since November 2008, the extent of Ms. Harris’ alcohol consumption were one glass of wine in April 2010 and another one in May 2010 it would not prompt her to recommend that Mr. Molony have sole custody.

Mr. Aultman, an expert in clinical social work, testified that he began treating Ms. Harris on March 15, 2007, for anxiety and depression. His diagnosis of Ms. Harris was adjustment disorder with depression, anxiety, and alcohol abuse. He described her alcohol abuse as a pattern; that is that she drinks more when she is upset. During the first year he treated her, she occasionally — about every two to three months — abused alcohol. During that time he did not have any concerns regarding her drinking or her ability to care for the children because “it didn’t seem like the drinking was on a daily basis.” It was more episodic and would occur when she was out with friends. However, given that Ms. Harris had an alcoholic family background, Mr. Aultman suggested that she go to AA. Although Ms. Harris adopted that suggestion, she did not regularly attend AA meetings until she |1swas served with Mr. Molony’s divorce petition. Mr. Aultman had never recommended in-patient alcohol treatment for Ms. Harris because her situation did not warrant it.

Mr. Aultman testified that Ms. Harris always mentioned her children; he never got the impression that she was not adequately caring for her them. Indeed, he found that “she was quite devoted in terms of that.” He, as Dr. Gandle, opined that Ms. Harris should have joint custody of CM. His opinion would change if she was not able to maintain her sobriety on a regular basis or if she was seen driving with her children while drunk.

Dr. Aultman corroborated Ms. Harris’ testimony that she had informed him about the two occasions in 2010 on which she had drunk wine. That information did not concern him because there was no evidence that she was abusing alcohol, no evidence that she was getting drunk.

Dr. Barnes, Ms. Harris’ treating psychiatrist, testified he has treated Ms. Harrris off and on since 1997 (for the last thirteen years). He testified that he has treated her with medication for depression and anxiety. He also diagnosed her with alcohol abuse — not dependency — around the time of the filing of the divorce. He testified that his treatment focused on medication management and that she was currently taking anti-anxiety medication (Buspar and Klonopin) and an anti-depressant (Celexa).

Based on the above evidence, the trial court concluded that “it would be in [CM’s] best interest for the parties to have a shared joint custody arrangement.” In support of his contention that the trial court erred in failing to award sole custody to him, Mr. Molony relies on Dr. Gandle’s recommendation that “[sjhould it become apparent that Ms. Harris is using alcohol then I would recommend Mr. |1fiMolony assume sole custody” and that “she enter either an inpatient treatment program or an intensive day treatment program.” He notes that Ms. Harris went against the experts’ recommendation and admitted that she had used alcohol only months before the custody trial even though she was aware of Dr. Gandle’s alternate recommendation. Mr. Molony’s argument equates drinking with abuse of alcohol. He contends that given Ms. Harris’ admission to drinking, the trial court should have adopted Dr. Gandle’s alternate recommendation and awarded sole custody to him.

However, as the trial court stated in its reasons for judgment, “Dr. Gandle qualified her opinion by stating that she would need to know the amount and frequency of Ms. Harris’s alcohol use. Dr. Gandle testified that, although drinking was ‘concerning’, it would not be a problem unless it leads to alcohol abuse or poor decision making.” The trial court further noted that both Mr. Aultman and Dr. Barnes had indicated that Ms. Hams’ occasional, social use of alcohol would not pose a problem with regard to joint custody of CM. The trial court still further noted that Michael Harris similarly testified that “he would not be concerned about [AH’s] safety if Ms. Harris had a glass of wine.” Based on the evidence presented, the trial court found that Ms. Harris was doing much better. . Although she admitted having used alcohol in 2010 the court found it could not conclude that she was abusing alcohol.

Based on the record, the trial court was not manifestly erroneous in finding that Mr. Molony had not established, by clear and convincing evidence, that an award of sole custody to him was in CM’s best interest. We affirm the finding that joint custody is in CM’s best interest. See Everett v. Everett, 438 So.2d 705, 708 117(La.1983)(recognizing the well-recognized tenet in Louisiana jurisprudence that an award of child custody is not a tool to regulate human behavior).

Physical custody

In the alternative, Mr. Molony contends that the trial court abused its discretion by modifying the current physical custody arrangement — two day on, two day off, and alternating weekends — to a week on, week off schedule. He contends that Dr. Gandle recommended that the parties should continue the current physical custody arrangement and that Ms. Harris testified that the current arrangement was working fine.

Although Dr. Gandle recommended that the current physical custody arrangement be maintained, she expressly noted in her recommendation that CM would benefit by having more time apart from each parent and suggested the parties make this change. The trial court’s adoption of a week on, week off schedule therefore is consistent with Dr. Gandle’s recommendation.

Although Ms. Harris testified at trial that the current visitation schedule was working, she expressed her preference for a 50/50 arrangement, such as the week on, week off schedule. She explained that the current schedule was problematic. Because she had her other son, AH, on weekdays, she felt that the two children were vying for her attention when she brought CM home on Tuesday. She also testified that, because the week was broken up, there was -no sense of continuity, which made it difficult for the boys to develop a good relationship. She characterized her having CM for only two days per week as “very interruptive,” and stated her belief that “he would be more able to feel more settled in at each household if he had more time.”

| iSMr. Molony’s only testimony regarding his preference for the schedule was that he was willing to be flexible as long as he had assurances that Ms. Harris was going to maintain her sobriety. Given her history, he was very concerned about that, but he would be comfortable with liberal visitation if “controls were in place to keep that in check.”

He cites Perm v. Penn, 09-0213, p. 7 (La.App. 5 Cir. 10/27/09), 28 So.3d 304, 308, for the proposition that “a custody dispute must be decided in light of its peculiar set of facts and the relationships involved in order to reach a decision that is in the best interest of the child.” Id. We agree, but find Mr. Molony’s reliance on Penn to be misplaced as that case is distinguished from the instant case both factually and legally.

Factually,- it was not feasible for the father in Penn to exercise a' true shared 50/50 custody because of his work schedule. Both Mr. Molony and Ms. Harris work at home, for the most part, and have the flexibility in their work schedules to accommodate CM’s child care needs, as demonstrated by the custody arrangement that has been in place since February of 2009. Legally, contrary to Mr. Molony’s suggestion, the appellate court in Penn did not reverse the joint custody award; rather, it designated Mrs. Penn as the domiciliary parent — a joint custody concept. See La. R.S. 9:335.

Considering the particular circumstances of this case, we cannot conclude the trial court abused its discretion in setting the physical custody schedule.

Legal custody (the domiciliary parent designation)

The legal effects of a determination of joint custody are addressed in La. R.S. 9:335, which provides that the court shall render a joint custody implementation order designating the time periods during which each parent shall li9have physical custody, which should be shared equally to the extent feasible. The statute further provides, in pertinent part:

B.(l) In a decree of joint custody the court shall designate a domiciliary parent except when there is an implementation order to the contrary or for other good cause shown.
(2) The domiciliary parent is the parent with whom the child shall primarily reside, but the other parent shall have physical custody during time periods that assure that the child has frequent and continuing contact with both parents.
(3) The domiciliary parent shall have authority to make all decisions affecting the child unless an implementation order provides otherwise. All major decisions made by the domiciliary parent concerning the child shall be subject to review by the court upon motion of the other parent. It shall be presumed that all major decisions made by the domiciliary parent are in the best interest of the child.

The trial court herein ordered that “the parties are designated co-domicilary parents and shall communicate as it relates as to the health, education, welfare of the minor child.” This designation does not comply with the mandate of La. R.S. 9:335(B) that the court “shall designate a domiciliary parent.” Although La. R.S. 9:336 provides that “[j]oint custody obligates the parents to exchange information concerning the health, education, and welfare of the child and to confer with one another in exercising decision-making authority,” we find no authority for the court to designate the parties as co-domiciliary parents. See Ketchum v. Ketchum, 39,082, p. 11 (La.App. 2 Cir. 9/1/04), 882 So.2d 631, 639 (noting that there is “no authority in the law for a designation of ‘co-domiciliary’ parents.”)

The statute does permit the court to decline to designate a domiciliary parent if one of two exceptions applies: (1) a valid implementation order to the contrary must have been provided by the trial court, or (2) good cause not to name a domiciliary parent has been shown, neither of which is applicable to this case. There is no implementation order specifying the authority and responsibility ofj^each parent with regard to CM. Nor do we find anything in the record that constitutes good cause for declining to follow the statutory requirements of appointing a domiciliary parent.

We, therefore, remand this matter to the trial court for an evidentiary hearing and for either the designation of one parent domiciliary parent or the issuance of an implementation order specifically delineating the legal authority and responsibility of each parent with regard to the health, education, and welfare of CM. On remand, we also strongly recommend to the trial court that it consider appointing a parenting coordinator pursuant to La. R.S. 9:358.1-9:358.9. See Palazzolo, 08-0075 at pp. 54-56, 10 So.3d at 779-80 (extensively discussing the appointment of a parenting coordinator in high-conflict custody cases such as this one).

In order for the court to appoint a parenting coordinator on its own motion or on the motion of a party, good cause must be shown. For this purpose “good cause” has been defined to include the following: (i) a determination by the court that either or both parties have demonstrated an inability or unwillingness to collaboratively make parenting decisions without assistance of others or insistence of the court; (ii) an inability or unwillingness to comply with parenting agreements and orders, (iii) a determination by the court that either or both parties have demonstrated an ongoing pattern of unnecessary litigation, (iv) a refusal to communicate or difficulty in communicating about and cooperation in the care of |21the children, and (v) a refusal to acknowledge the right of each party to have and maintain a continuing relationship with the children. La. R.S. 9:358.1, Comment (c). Several of these factors are present in this case. Moreover, appointing a parenting coordinator is supported by Dr. Gandle’s recommendation that “the parents may benefit from a facilitator who could work with them on implementing their arrangement and encourage the consistency needed here.” Based on the record it is apparent that both parties are caring, intelligent, capable adults who are devoted to CM. A parenting coordinator to assist them in dealing with conflicts and tensions that may arise could be beneficial to them; this certainly would be in CM’s best interests.

Accountability measures

Mr. Molony’s final contention is that the trial court should have adopted the enhanced accountability measures Dr. Gandle, the court-appointed expert, recommended to ensure Ms. Harris’ sobriety and to protect CM’s best interest. He contends that Ms. Harris is minimizing her symptoms regarding her current alcohol use. In this regard, he cites Dr. Mire’s opinion that her testing indicated that Ms. Harris may be minimizing her symptoms. Mr. Molony notes that Ms. Harris has attempted to recover from alcohol abuse before, pointing out that Mr. Aultman’s treatment records indicate a “pattern of recovery and relapse similar to her current admitted use.” He contends, therefore, that it is in CM’s best interest for the court to protect him by implementing the suggested accountability measures to coincide with Ms. Harris’ treatment and to prevent the likelihood of relapse.

In response, Ms. Harris stresses that Mr. Molony offered no expert testimony to support his position regarding the need for accountability by her. She |22notes that Dr. Gandle’s recommendation seemed geared toward reassuring Mr. Molony rather than necessary to ensure that CM is protected.

In rejecting Dr. Gandle’s recommended accountability measures, the trial court in its reasons for judgment stated that it “was not persuaded by Dr. Gandle’s testimony regarding the need for Ms. Harris to attend daily AA meetings, install a breathalyzer in her vehicle, or undergo random alcohol testing.” Continuing, the court stated that “Ms. Harris’s treating mental health providers are in a better position to guide her care; as such, it defers to their opinions.” Both of Ms. Harris’ treating mental health providers disagreed with Dr. Gandle’ recommended safeguards.

The great discretion and deference granted to the fact finder on appellate review extends to its assessment of expert testimony. McKenzie v. Cuccia, 04-0112, p. 6 (La.App. 4 Cir. 6/23/04), 879 So.2d 335, 339 (citing Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106 (La.1990)). Further, the trial court may substitute common sense and judgment when such a substitution appears warranted by the record. Id. (citing Verret v. Verret, 34,982 (La.App. 2 Cir. 5/9/01), 786 So.2d 944). After weighing and evaluating the expert and lay testimony, the trial court may accept or reject any expert’s opinion. McKenzie, supra. The trial court did so in this case. At trial, Dr. Gandle was questioned about the safeguards she recommended, and she acknowledged that the safeguards were not an absolute guarantee of Ms. Harris’ sobriety. Both of Ms. Harris’ treating mental health providers, Mr. Aultman and Dr. Barnes, disagreed with Dr. Gandle’s recommended safeguards, and the trial court deferred to their opinion.

12aMr. Aultman’s testimony belies Mr. Molony’s contention such measures are warranted because Ms. Harris has exhibited a pattern of failed recovery. Although Mr. Aultman testified that twice before Ms. Harris had indicated she was going to stop drinking and then started again, he indicated that the present circumstances are qualitatively different than the prior circumstances when she attempted to stop drinking. Mr. Autlman opined that he believes the current situation is different for three reasons: (i) the custody issue, (ii) Ms. Harris “now sees that she had more of a problem,” and (iii) she does not deny it. He also noted that she is now attending AA daily and that she has a different attitude about her drinking in that she sees it as a serious issue not just a concern.

The record reflects that Ms. Harris maintained her sobriety. Confronted with this evidence and conflicting expert opinions, the trial court’s decision not to require accountability measures beyond continuance of therapy was not manifestly erroneous.

DECREE

For the foregoing reasons, the trial court’s judgment is reversed insofar as it designates the parties as co-domiciliary parents and is affirmed in all other respects. This case is remanded for the trial court to either designate a domiciliary parent or issue an implementation order specifying the parties’ decision-making responsibilities. The trial court is also ordered to consider appointing a parenting coordinator pursuant to La. R.S. 9:358.1-9:358.9.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

      . In an earlier appeal, this court affirmed the trial court's judgment denying Ms. Harris’ request for interim spousal support. Molony v. Harris, 09-1529 (La.App. 4 Cir. 10/14/10), 51 So.3d 752.

      . The initials of the two minor children involved in this case, CM and AH, are used in this opinion in order to protect their privacy.

      . In a footnote, the court noted here that "[t]his incident does beg the question of why Mr. Molony if he was concerned about the welfare of his minor son would allow his minor son to sleep in the bed with his alleged intoxicated and unclothed wife.”

      . The evidence presented at trial is discussed elsewhere in this opinion.

      . La. C.C. art. 134 provides:
      The court shall consider all relevant factors in determining the best interest of the child. Such factors may include:
      (1) The love, affection, and other emotional ties between each party and the child.
      (2) The capacity and disposition of each party to give the child love, affection, and spiritual guidance and to continue the education and rearing of the child.
      (3) The capacity and disposition of each party to provide the child with food, clothing, medical care, and other material needs.
      (4) The length of time the child has lived in a stable, adequate environment, and the desirability of maintaining continuity of that environment.
      (5) The permanence, as a family unit, of the existing or proposed custodial home or homes.
      (6) The moral fitness of each party, insofar as it affects the welfare of the child.
      (7) The mental and physical health of each party.
      (8) The home, school, and community history of the child.
      (9) The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference.
      (10) The willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party.
      (11) The distance between the respective residences of the parties.
      (12) The responsibility for the care and rearing of the child previously exercised by each party.

      . La. C.C. art. 132 provides:
      If the parents agree who is to have custody, the court shall award custody in accordance with their agreement unless the best interest of the child requires a different award.
      In the absence of agreement, or if the agreement is not in the best interest of the child, the court shall award custody to the parents jointly; however, if custody in one parent is shown by clear -and convincing evidence to serve the best interest of the child, the court shall award custody to that parent.

      . The purpose behind the Parent Coordinator Act is explained in the comments, which state:
      Parenting coordination is a child-focused alternate dispute resolution process in which a duly qualified parenting coordinator assists parents or persons exercising parental authority to implement a parenting plan by facilitating the resolution of their disputes in a timely manner and by reducing their child-related conflict so that the children may be protected from the impact of that conflict. The parenting coordinator assists the parties in promoting the best interests of the children by reducing or eliminating child-related conflict through the use of the parenting coordination process.
      La. R.S. 9:358.1, Comment (a).

      . We note that Dr. Gandle admitted that the accountability measures she recommended could not guarantee Ms. Harris’ sobriety.


source: Caselaw Access Project

author: EDWIN A. LOMBARD, Judge.

license: Public Domain

text:
    FLEET INTERMODAL SERVICES, LLC v. ST. BERNARD PORT, HARBOR AND TERMINAL DISTRICT.
    No. 2010-CA-1485.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 23, 2011.

      Leo J. Palazzo, David D. Bravo, Palazzo Law Firm, Gretna, LA, for Plaintiff/Appellant.
    G. Frederick Seemann, Law Office of G. Frederick Seemann, Attorney at Law, L.L.C., Lafayette, LA, for Defendant/Ap-pellee.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge EDWIN A. LOMBARD, Judge PAUL A. BONIN).
   EDWIN A. LOMBARD, Judge.

| plaintiff, Fleet Intermodal Services, L.L.C., appeals to this Court a judgment of the district court, following a full bench trial on the merits, denying its claim for interest allegedly due on a contract with defendant, the St. Bernard Port, Harbor and Terminal District, as well as denying its claim for attorney’s fees and costs. For the reasons provided below, the trial court’s judgment in favor of the defendant is affirmed.

Factual and Procedural History

The St. Bernard Port, Harbor and Terminal District (hereafter known as “the Port”) is a public corporation and political subdivision of the State of Louisiana having “complete jurisdiction to regulate all domestic, coastwise, and intercoastal commerce and traffic within the territorial limits of St. Bernard Parish.” Fleet Inter-modal Services, L.L.C., based in Belle Chasse, is a private business engaged in providing logistical services, equipment, and services for domestic projects as well as international shipping. On August 29, 2005, Hurricane Katrina landed ashore in southeast Louisiana and caused well-documented devastation to the entire region, including the near-destruction of St. Bernard Parish. Following Hurricane Katrina, Fleet Intermodal was engaged in providing housing, temporary |2trailers, fuel, and other basic supplies to businesses and government entities in St. Bernard.

On October 4, 2005, the Board of Commissioners of the Port met and discussed the numerous issues and problems affecting the Port as a result of Hurricane Katrina. The Board discussed the rebuilding of its facilities, and how the approval of the Federal Emergency Management Agency (FEMA) would be required for all repair contracts and other Hurricane Katrina-related restoration projects for the foreseeable future. Shortly thereafter, representatives for the Port and Fleet Intermodal met to negotiate a contract in which Fleet Intermodal would provide 30 RV-class temporary housing units, also known as “trailers.” An initial written proposal was created in which the Port would pay Fleet Intermodal $34,000.00 per unit for each trailer, with delivery and setup of each trailer included in the cost. The proposal also included an additional $330.00 per trailer unit for the cost and’Setup of access steps and railings. Thus, the resulting proposal value for the trailer unit was $34,330.00 per unit, with a total proposed contract value of $1,020,000.00. This written proposal also stated that 50% of the payment was a “deposit” that was “[d]ue at Contract Signing or first delivery,” with the “[bjalance Due after Final Unit is Setup.”

On October 7, 2005, a contract was executed by Fleet Intermodal and the Port for the purchase of the trailer units. The contract was signed by Darren Angelo, as owner of Fleet Intermodal, and by Robert J. Scafidel, Ed.D., the Port’s Executive Director, and was properly witnessed by authentic act. The contract differed from the proposal in that only 28 trailer units were purchased. As a result, the contract stated a final price of $961,240.00 for 28 units at $34,000.00 per unit and $330.00 per unit for stairs and railings. The contract, drafted by the Port, Instated that “... the proposal is made a part of hereof and hereby becomes a part of this contract.” A project worksheet form completed by the Port, dated October 4, 2005, was sent to FEMA, requesting the $961,240.00 for 28 “portable temporary housing units.”

Following execution of the contract, Fleet.Intermodal delivered and set up the trailer units and stairs in late October 2005. At the time of final set-up, no payment had yet been made to Fleet Iritermo-dal. It was discussed by the parties upon delivery of the trailer units that the Port was waiting for money from FEMA prior to payment for the units. Shortly thereafter, Fleet Intermodal sent the Port an invoice for the trailer units. The invoice, dated November 4, 2005, contained the following provision: “[pjayment due net 21 days; 24% corresponding APR Interest thereafter.” There was no mention of payment of interest in either the contract proposal or the executed contract itself. In the beginning of every month from January to April 2006, Fleet Intermodal sent finance charge invoices to the Port for alleged interest due on the payment for the trailer units. Fleet Intermodal also sent numerous e-mails to the Port requesting payment of the contract price. The Port did not pay these interest invoices, but submitted Fleet Intermodal’s request for interest along with the contract price invoice of $961,240.00 to FEMA. On or around April 4, 2006, FEMA submitted money to the Port for the 28 trailer units, but not for the invoiced interest payments requested by Fleet Intermodal. The next day, the Port submitted a check to Fleet Intermodal for $961,240.00, serving as the full payment on the contract between the two parties on the delivery and setup of the 28 trailer units.

After sending letters to the Port through counsel requesting payment for alleged outstanding interest payments owed, on August 28, 2008, Fleet Intermo-dal 14filed this lawsuit, a “Petition on Open Account,” in the 34th Judicial District Court. After ample pre-trial discovery, including the taking of depositions, a bench trial on the merits was held in this matter on March 29, 2010. Both parties submitted post-trial memoranda following the day-long trial. The trial court, in a judgment dated May 18, 2010, ruled in favor of the defendant-appellee, the St. Bernard Port, Harbor and Terminal District, and denied Fleet Intermodal’s claims for interest owed on the contract as well as attorney’s fees and costs. The trial court issued written reasons for judgment in favor of the Port. Fleet Intermodal now timely appeals the judgment of the trial court.

Assignments of Eiror

Fleet Intermodal argues that the trial court erred in holding the Port not liable to it for interest owed under its invoices sent following delivery and setup of the trailer units. Specifically, Fleet Intermo-dal argues that the Port accepted the terms of interest by submitting the interest request to FEMA along with the contract price, by marking the invoice “Approved RJS”, and by failing to object to the accumulating interest. Plaintiff also argues that interest automatically began to accrue when the Port failed to tender payment at the time the trailer units were delivered. Appellant further argues that the trial court erred in not awarding it attorney’s fees.

Interpretation of Contracts and Appellate Standard of Review

The burden of proof in an action for breach of contract is on the party claiming rights under the contract. Rebouche v. Harvey, 2000-2327, p. 3 (La.App. 4 Cir. 12/19/01), 805 So.2d 332, 334, citing Vignette Publications, Inc. v. Harborview Enterprises, Inc., 2000-1711, p. 3 (La.App. 4 Cir. 9/12/01), 799 So.2d 5531, 534. The existence of the contract and its terms must be proved by a preponderance of the evidence. Id.

In interpreting contracts, we are guided by the general rules contained in La. Civ.Code arts. 2045-2057. French Quarter Realty v. Gambel, 2005-0933, pp. 6-7 (La.App. 4 Cir. 12/28/05), 921 So.2d 1025, 1029. La. Civ.Code art. 2045 states that the interpretation of a contract is the determination of the common intent of the parties. To ascertain the parties’ intent, the court must first look to the words and provisions of the contract. French Quarter Realty, 05-0933 at p. 6, 921 So.2d at 1029. When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in the search of the parties’ intent. La. Civ.Code. art. 2046. The meaning and intent of the parties to a written instrument is ordinarily determined from the four corners of the instrument, and extrinsic (parol) evidence is inadmissible either to explain or to contradict the terms thereof. Ortego v. State, Dept. of Transp. and Development, 96-1322, p. 7 (La.2/25/97), 689 So.2d 1358, 1363.

The issue of whether or not the language of a contract is ambiguous is an issue of law subject to the de novo standard of review on appeal. French Quarter Realty, 05-0933 at p. 3, 921 So.2d at 1027. Contracts, subject to interpretation from the instrument’s four corners without the necessity of extrinsic evidence, are to be interpreted as a matter of law, and the use of extrinsic evidence is proper only where a contract is ambiguous after examination of the four corners of the agreement. Richard A. Tonry, P.L.C. ex rel. Tonry v. Constitution State Service, L.L.C., 2002-0536, p. 3 (La.App. 4 Cir. 7/17/02), 822 So.2d 879, 881. However, “[i]n the interpretation of contracts, the trial court’s interpretation of the contract is a finding of fact subject to the manifest error rule.” French Quarter Realty, 05-j09336 at p. 3, 921 So.2d at 1027-28, quoting Grabert v. Greco, 95-1781 (La.App. 4 Cir. 2/29/96), 670 So.2d 571, 573. This appellate standard of appellate review with regard to contractual interpretations has been recently clarified by this Court as follows:

Where factual findings are pertinent to the interpretation of a contract, those factual findings are not to be disturbed unless manifest error is shown. However, when appellate review is not premised upon any factual findings made at the trial level, but is, instead, based upon an independent review and examination of the contract on its face, the manifest error rule does not apply. In such cases, appellate review of questions of law is whether the trial court was legally correct or legally incorrect.

New Orleans Jazz and Heritage Foundation, Inc. v. Kirksey, 2009-1433, p. 9 (La.App. 4 Cir. 5/26/10), 40 So.3d 394, 401, writ denied, 2010-1475 (La.10/1/10), 45 So.3d 1100, quoting Clinkscales v. Columns Rehabilitation and Retirement Center, 2008-1312, p. 3 (La.App. 3 Cir. 4/1/09), 6 So.3d 1033, 1035-36.

Discussion

As stated above, when interpreting contracts under Louisiana law, it is first necessary to review the four corners of a contract as a matter of law, and determine if the trial court was legally correct or incorrect. In the matter sub judice, the contract at issue was executed on October 7, 2005 between Fleet Intermodal, acting through Darren Angelo, its owner, and the Port, acting through Dr. Robert J. Scafi-del. The contract recited a price of $961,240.00 and sufficiently described the 28 trailer units contracted for. The Port drafted the contract and incorporated the terms of the written proposal prepared by Fleet Intermodal. The proposal called for half-payment due at contract signing or first delivery, and a second half payment due after the final unit was set up. The trial court, in its reasons for judgment, stated that neither copy of the written proposal submitted by the parties 17contains any language regarding interest, nor did the final contract of October 7, 2005. Upon our de novo review of the contract and incorporated proposal, we agree. Fleet Intermodal, however, argues that the Port accepted its terms of interest by allegedly approving its November 4, 2005 invoice.

First, we must determine whether the payment of interest stated in the November 4, 2005 invoice was discussed between the parties in any manner prior to its imposition by Fleet Intermodal. During his trial testimony, Darren Angelo, the owner of Fleet Intermodal, was asked by defendant’s counsel of the origins of the invoice calling for 24% APR interest:

Q: Now, you then generated this invoice which calls for 24 percent interest; is that correct?
A: That’s correct.
Q: Did you generate that invoice by an agreement with the Port?
A: With regards to the amount due, yes.
Q: All right, first with the amount due, the $961,240, was the price for 28 units; is that correct?
A: That’s correct.
Q: The language on this invoice that dealt with the interest, the 24 percent, was not agreed to by the Port was it?
A: Well, what was agreed to by the Port was payment on delivery.
Q: But that’s not my question to you. My question is: The 24 percent interest that you put on this invoice was not an agreement with the Port, right? It was not by an agreement with the Port?
A: Not in the contract, no.
Q: The 24 percent that you put on the invoice was something that you did unilaterally; is that correct?
A: Well, it’s company policy; yes.

IsThere is ample additional trial testimony showing that the 24% interest was not agreed upon or even discussed by the parties. While it is clear that the parties did not agree upon imposing the 24% interest unilaterally placed by Fleet Intermodal into its November 4, 2005 invoice, further analysis must be made under Louisiana contract law:

“[UJnlike the common law analysis of a contract using consideration which requires something in exchange, the civil law concept of ‘cause’ can obligate a person by his act ... The difference has been analogized contract-consent approach to a common law contract-bargain approach.”

Bains v. Young Men’s Christian Ass’n of Greater New Orleans, 2006-1423, p. 5 (La.App. 4 Cir. 10/3/07), 969 So.2d 646, 649, writ denied, 2007-2146 (La.1/7/08), 973 So.2d 727. Therefore, this Court must further inquire as to whether the Port consented to Fleet Intermodal’s imposition of interest on the contract for the sale and delivery of the trailer units.

Fleet Intermodal first argues that the Port accepted the terms of interest set in its invoice dated November 4, 2005 by submitting the contract invoice and subsequent interest invoices to FEMA. In support of this argument, appellant insists that trial testimony from Dr. Scafidel, the Port’s Executive Director, in which he testifies to submitting the interest invoices to FEMA, renders him liable for these submitted interest payments. Specifically, appellant argues that the very act of submitting the interest payment request to FEMA shows that the Port viewed the interest payments as valid. The trial court did not accept this assertion, and neither does this Court. The trial court noted: “That was a reasonable thing to do. If he wanted interest, submit to FEMA, see if they felt it was appropriate. It’s not fraudulent. That’s the way things happened down here after the storm.” According |9to testimony from Dr. Scafidel, the Port never agreed to pay the interest charges, but did agree merely to submit Fleet Intermodal’s interest invoices along with the request for payment on the recited contract price. We agree with the trial court’s conclusion: the mere submission of invoices to FEMA did not constitute an acceptance or consent to terms to pay the interest imposed by Fleet Intermodal, which the original contract did not require.

Next, Fleet Intermodal argues that the Port accepted the terms of interest by stamping “Approved RJS” on the invoice. A party who demands performance of an obligation must prove the existence of the obligation. La. Civ.Code art. 1831. A contract is formed by the consent of the parties established through offer and acceptance. La. Civ.Code art. 1927. Unless the law prescribes a certain formality for the intended contract, offer and acceptance may be made orally, in writing, or by action or inaction that under the circumstances is clearly indicative of consent. Id. “In cases where the law does not expressly create a legal presumption of consent from certain facts, it is left to the discretion of the judge to determine if consent is to be implied from the particular circumstances of the case.” Illinois Central Gulf Railway Co. v. International Harvester Co., 368 So.2d 1009, 1012 (La.1979). “[E]xcept in those instances in which the statutory law creates a legal presumption, the mere silence of an offer-ee should not, in principle, be considered as involving acceptance on his part.” Id. “His consent can result from silence, however, when combined with other facts or acts so as to imply or indicate his consent unequivocally.” Id.

At some time before the Port issued payment for the trailer unit contract price on April 5, 2006, an employee of the Port marked the November 4, 2005 invoice “Approved RJS.” Fleet Intermodal argues that this act resulted in consent |into the 24% interest rate written on the invoice. At trial, Dr. Scafidel acknowledged the existence of the “Approved RJS” stamp on this invoice:

A: I had my secretary stamp it.
Q: Correct. After you reviewed it, correct?
A: Yes.
Q: And you had her stamp “Approved RJS” on there, correct?

However, Dr. Scafidel denied that it was an approval to pay interest. He stated that it was his understanding that it was an approval to pay the agreed-upon contract price listed on the invoice: $961,240.00:

Q: You were asked about the “approved” stamp on the document. Why was it put there and when was it done?
A: That is the submission of items to be paid are submitted to my office, and I review everything, and if I find the invoice has all the proper approvals on the invoice, then that stamp is made so accounting knows that they can proceed and cut the check. But that approval is done for the invoice, but it doesn’t have a date or anything. So, this could have happened, well, it did happen in April.
Q: If that invoice was approved with the interest would it have an interest calculation on it?
A: It should before we would approve it ...
... Q: Did the Board, the Port, the Commissioners ever approve the payment of the interest?
A: No.

Despite this testimony, Fleet Intermodal argues that its invoice with the 24% interest constituted an offer, and that the Port’s stamp constituted an acceptance. Appellant cites New Orleans Medical Sales and Services, Inc. v. Brown, 398 So.2d 1194 (La.App. 4 Cir.1981), in support of this argument. However, we agree with In the trial court’s written reasons, and find the cases easily distinguishable. The trial court in the matter sub judice correctly stated the distinction between the two cases:

(In New Orleans Medical) ... the defendant’s doctor ordered a piece of medical equipment from the plaintiff to be delivered to the defendant. Id., at 1195. Upon delivery, the defendant signed an invoice from the plaintiff that contained the words “Buyer accepts the terms and conditions set forth below” below the signature line and a number of terms, including interest and attorney’s fees. Id. The court reasoned that since the defendant received the equipment, signed his name above the payment terms, and used the equipment, he was obligated to pay for it. Id., at 1196.
The facts in this case and those in the New Orleans Medical case are easily distinguished. In both cases, there was a delivery of goods and the expectation of payment. However, in the New Orleans Medical case, the defendant explicitly made his first payment agreement and arrangements by signing the invoice. There was no preexisting contract. In this case, the Port and Fleet confected their agreement before the trailers were delivered. Further, the invoice in the New Orleans Medical case clearly stated that by signing it, the defendant was binding himself to the terms of the invoice. Fleet’s invoice merely states that interest will begin accruing after a certain time had passed as if it were merely reciting the terms of the agreement already made. The invoice does not purport to make a new agreement or modify the existing one.

(Emphasis added).

Upon our review of the trial testimony, we agree with the trial court in this matter that “under the circumstances, there is no clear indication of the Port’s consent to be bound to pay interest.” Dr. Scafídel’s testimony clearly showed that the stamp was merely an authorization to pay the invoice amount; the contracted-for $961,240.00. There were no interest calculations made at any time by the Port. The testimony of the Port’s employees indicates that no one from the Port agreed in any way to accept Fleet Intermodal’s unilaterally imposed terms of interest. This is also evidenced by the fact that none of the interest-only invoices sent to the [ 1gPort between January and April 2006 were approved or acted upon. And as stated above, the Port’s mere submission of the interest invoices to FEMA cannot be considered to be an acquiescence to pay the 24% interest. It cannot be said that the Port agreed to the terms of interest. Nor it can it be said that, given the testimony of the Port’s employees, that the Port approved the interest by silence. Therefore, we find no error in the trial court’s determination that there was no consent to payment of interest.

Fleet Intermodal next argues that the trial court erred in not finding that it is owed interest automatically under La. Civ. Code arts. 1989, 2550, and 2553. La. Civ.Code art. 1989 states that “[d]amages for delay in the performance of an obligation are owed from the time the obligor is put in default. Other damages are owed from the time the obligor has failed to perform.” Fleet Intermodal argues legal interest is due as a result of the Port’s failure to timely pay under the terms of the proposal, which was made part of the contract. Fleet Intermodal is correct in that the contract proposal called for 50% payment at contract signing or first delivery, and for the balance to be due after final setup. However, the contract does not provide for any penalties in the event of non-payment at this time.

More importantly, the trial testimony shows that appellant was certainly aware of the requirement that FEMA would be reimbursing the Port, and that payment could not be made until FEMA approved the project and provided the money. At trial, Dr. Seafidel testified as such:

11SQ: Did you talk to Mr. Angelo about the price of these trailers and when it was to be paid at your meeting with him?
A: The only thing I said to Mr. Angelo and to everyone there is that this is contingent upon our receipt of funds from FEMA, because in all honesty, the Port did not have that amount of money.
Q: And had the project been approved by FEMA at that point?
A: We had a verbal approval, yes.

David McClain, the Port’s Director of Operations at the time, testified that he first received an interest-only invoice from Fleet Intermodal in January 2006, and that he had numerous conversations with Mr. Angelo with the mutual understanding that Mr. Angelo would be paid only after FEMA approved the contract and reimbursed the Port:

Q: And before these invoices were issued in January, you didn’t have any conversation with him about that, right?
A: No.
Q: Never entered your mind that they were going to charge interest; is that right?
A: No.
Q: How many times did you have a conversation with Mr. Angelo about the fact that Intermodal would not get paid until FEMA paid the money to the Port?
A: Numerous. At least six, eight times.

In this matter, the Port, as obligor, was not at any point placed in default. As the trial court correctly noted, “[t]he Port failed to pay on the schedule laid out in the contract and proposal, yet nowhere in either document did the parties define the consequences of default.” In fact, we find that, based on the trial testimony, all | ^parties were aware that payment would not be made to Fleet Intermodal until FEMA approved the contract. La. Civ. Code art. 1927.

Trial testimony further indicates that Mr. Angelo had attended meetings where it was discussed that payment would be forthcoming from FEMA, as was the case in countless other personal and commercial payments following Hurricane Katrina. Mr. Angelo had testified that he was aware that some payment or approval process was coming from FEMA. Appellant was also aware of the project worksheet which stated the contract price of $961,240.00 and was approved by FEMA on October 4, 2005. As soon as this payment was made by FEMA, appellant received payment in full on the contract price. Therefore, this Court finds that no damages are owed to appellant for “default” under La. Civ.Code art. 1989.

For these reasons, and because the October 7, 2005 contract between the parties did not stipulate any penalties or consequences of non-payment, we find no valid claim for interest under La. Civ.Code arts. 2550 and 2553. The contract, through the proposal made part thereof, stipulated a time for payment and a time when the price was due, but appellant was fully aware that payment would not be made until FEMA tendered payment to the Port.

Appellant’s final argument on appeal is that it is owed attorney’s fees for having to pursue its claim on an alleged open account under La.Rev.Stat. 9:2781. Appellant correctly points out that in Frey Plumbing Company, Inc. v. Foster, 2007-1091, p. 5 (La.2/26/08), 996 So.2d 969, 972, the Louisiana Supreme Court rejected pri- or multi-factor tests in determining what constitutes an “open account” for the purpose of obtaining attorney’s fees under the statute, and held that an |1s“open account” is clearly defined by the statute itself. The Court held that the statute, which in Subsection D defines an open account, “must be applied as written.” Id., p. 6, 996 So.2d at 972.

Nevertheless, upon our plain reading of La.Rev.Stat. 9:2781, we cannot conclude that appellant is owed attorney’s fees for bringing suit on an open account. For the reasons already provided above in this opinion, the contract between Fleet Inter-modal and the Port was fulfilled as a result of the Port’s payment of $961,240.00 on April 5, 2006, immediately after receiving funds from FEMA. It is undisputed that the Port paid the full contractual amount well within thirty days, and so attorney’s fees are not owed on the contract amount under La.Rev.Stat. 9:2781. Since this Court also concludes that there was no consent to terms of interest unilaterally imposed by Fleet Intermodal, there are no attorney’s fees owed to appellant for pursuing its interest claim, either. See Newman v. George, 2007-0620, pp. 7-8 (La.App. 4 Cir.9/26/07), 968 So.2d 220, 225-226. In essence, because plaintiffs primary claim for interest fails, its underlying claim for attorney’s fees under La.Rev. Stat. 9:2781 also fails.

| if¡ Conclusion

Upon de novo review of the October 7, 2005 contract between Fleet Intermodal and the St. Bernard Port, Harbor and Terminal District, we find that the contract itself and the proposal therein made no mention of interest to be owed in the event of default or non-payment. Our review of the trial testimony reveals that the Port did not consent to any terms of interest. Nor do we find that the Port’s submission of Fleet Intermodal’s interest invoices to FEMA constitutes an acceptance of interest terms.

Although the contract proposal called for payment upon final set-up of the units, it was well established at trial that all parties knew payment would not be made until FEMA approved the project and issued payment on the contract amount. Once payment was made, the Port immediately issued payment on the contractual amount of $961,240.00 to Fleet Intermodal. Therefore, no legal interest is owed to appellant under La. Civ.Code arts. 1989, 2550, and 2553. Because plaintiffs interest claim fails, so does its claim for attorney’s fees under La.Rev.Stat. 9:2781. Decree

We find no error in the trial court’s judgment denying Fleet Intermodal’s claim for conventional interest, attorney’s fees, and costs. The judgment of the trial court is affirmed.

AFFIRMED

      . La.Rev.Stat. § 34:1701.

      . La. Civ.Code art. 2550 provides:
      Payment of the price is due at the time and place stipulated in the contract, or at the time and place of delivery if the contract contains no such stipulation.
      La. Civ.Code art. 2553 provides:
      The buyer owes interest on the price from the time it is due.

      . La.Rev.Stat. 9:2781 provides in pertinent part:
      A. When any person fails to pay an open account within thirty days after the claimant sends written demand therefor correctly setting forth the amount owed, that person shall be liable to the claimant for reasonable attorney fees for the prosecution and collection of such claim when judgment on the claim is rendered in favor of the claimant. Citation and service of a petition shall be deemed written demand for the purpose of this Section. If the claimant and his attorney have expressly agreed that the debtor shall be liable for the claimant’s attorney fees in a fixed or determinable amount, the claimant is entitled to that amount when judgment on the claim is rendered in favor of the claimant. Receipt of written demand by the person is not required.
      ... D. For the purposes of this Section and Code of Civil Procedure Articles 1702 and 4916, “open account” includes any account for which a part or all of the balance is past due, whether or not the account reflects one or more transactions and whether or not at the time of contracting the parties expected future transactions. “Open account” shall include debts incurred for professional services, including but not limited to legal and medical services. For the purposes of this Section only, attorney fees shall be paid on open accounts owed to the state. (Emphasis added).


author: WILLIAMS, J.

text:
    RENT-A-CENTER EAST, INC., Plaintiff-Appellant v. LINCOLN PARISH SALES & USE TAX COMMISSION and Jerry W. Moore, in his Capacity as Administrator of the Lincoln Parish Sales & Use Tax Commission, Defendant-Appellee.
    No. 46,054-CA.
    Court of Appeal of Louisiana, Second Circuit.
    March 9, 2011.

      William M. Backstrom, Jr., Coleman D. Ridley, for Appellant.
    William S. Carter, Jr., Robert R. Rainer, Drew M. Talbot, for Appellee.
    Before WILLIAMS, STEWART and DREW, JJ.
   WILLIAMS, J.

| ¡.Plaintiff, Rent-A-Center East, Inc., appeals a district court’s grant of summary judgment in favor of defendant, Lincoln Parish Sales & Use Tax Commission. The district court declared that the sum of $15,433.11, the amount in sales taxes Rent-A-Center paid under protest, was the property of the Lincoln Parish Sales & Use Tax Commission. The court also ordered Rent-A-Center to pay $1,543.31 in attorney’s fees. For the reasons that follow, we amend the judgment to award $2,500 in additional attorney’s fees for the appeal and the judgment, as amended, is affirmed.

FACTS

Rent-A-Center East, Inc. (“RAC”) owns and operates a retail outlet in Lincoln Parish, Louisiana. The retail outlet is in the business of displaying, renting, leasing and/or selling various articles of tangible personal property to its customers. Such property includes home electronics, appliances, computers, furniture and accessories. Most frequently, the items are rented/leased to customers; however, customers/lessees may also opt to purchase items.

When renting/leasing an item. from RAC, the customer has the option of either (1) accepting responsibility for any damage which might affect the rented/leased item, or (2) purchasing a liability damage waiver (“LDW”). If the customer elects to purchase a LDW, then RAC waives the right to charge the customer for any physical damage to the rentedfieased property. A LDW is an additional, optional feature and is offered at an added charge of 7.5% of the basic rental charge. If the customer/lessee chooses to pay the additional charge for a LDW, he or she signs an addendum to the rental |spurchase agreement, captioned “OPTIONAL LIABILITY DAMAGE WAIVER PROTECTION.” The charge for the LDW is added to each periodic payment.

The Lincoln Parish Sales & Use Tax Commission (“the Commission”) conducted an audit of RAC’s records for the period of January 1, 2004, through March 31, 2007. During the course of the audit, it was discovered that RAC had collected sales taxes from its customers for the rental/lease of items, but had failed to charge, collect and remit sales taxes for the LDW purchases. The Commission issued a tax assessment in the amount of $15,433.11, which included penalties for nonpayment of taxes. RAC paid the full amount under protest. Thereafter, RAC filed the instant lawsuit, naming the Commission and Jerry W. Moore, in his capacity as its administrator, as defendants. RAC alleged that LDW payments were not taxable and requested a refund of the amount it had submitted under protest. The Commission filed an answer and a reconventional demand, alleging that it was entitled to retain the taxes levied, plus interest, penalties and attorney’s fees.

Subsequently, both parties moved for summary judgment. The district court granted summary judgment in favor of the Commission, concluding that the proceeds from the LDW sales were taxable “gross proceeds.” The court declared that the sum of $15,433.11, which RAC had paid under protest, was the property of. the Commission and ordered that sum.|4to be released from escrow. The court also ordered RAC to pay an additional amount of $1,543.31 in attorney’s fees. RAC’s motion for summary judgment was denied.

RAC now appeals. The Commission has answered the appeal, requesting that this Court “award additional attomeyfs] fees for legal services rendered on appeal.”

DISCUSSION

RAC contends the district court erred in denying its motion for summary judgment and in granting summary judgment in favor of the Commission. RAC argues that the monies received by RAC for the LDW purchases were not subject to taxation because there is no specific provision in the tax statutes and ordinances which provide for the waivers.

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. Somalia, v. Ran, 2007-1726 (La.2/26/08), 977 So.2d 880; Duncan v. USAA Ins. Co., 2006-368 (La.11/29/06), 950 So.2d 544; see also LSA-C.C.P. art. 966. Appellate courts review summary judgments de novo, while considering the record and all reasonable inferences drawn from the record in the light most favorable to the non-movant. Hines v. Garrett, 2004-0806 (La.6/25/04), 876 So.2d 764; Austin v. Bundrick, 41,064 (La.App.2d Cir.6/30/06), 935 So.2d 836. Summary judgment is warranted only if there is no genuine issue of material fact and the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(C)(1).

The burden of proof remains with the movant. LSA-C.C.P. art. 966(C)(2). However, if the movant will not bear the burden of proof at trial Ron the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Id. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he or she will be able to satisfy his or her evidentiary burden of proof at trial, then there is no genuine issue of material fact. Id.

LSA-R.S. 47:302 provides, in pertinent part:

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

In determining whether a transaction is taxable under the Louisiana sales and use tax statutes, courts have looked at the “essence of’ or the “real object” of the transaction. See, Enterprise Leasing Co. of New Orleans v. Curtis, 2007-0354 (La.App. 1st Cir.11/2/07), 977 So.2d 975, writ denied, 2007-2320 (La.2/1/08), 976 So.2d 719; McNamara v. Electrode Corp., 418 So.2d 652 (La.App. 1st Cir.), writ denied, 420 So.2d 986 (La.1982).

|fiIn the instant case, the trial court relied upon Enterprise Leasing, supra, in concluding that the proceeds derived from the LDW sales were taxable. In that case, Enterprise was in the business of renting automobiles to customers. When renting an automobile, Enterprise customers had the option of either accepting responsibility for damage to the automobile or purchasing a collision damage waiver (“CDW’). If the customer elected to purchase a CDW, Enterprise would waive the right to recover damages from the customer for physical damage to the automobile. A dispute arose when Livingston Parish conducted an audit, which resulted in the Parish assessing sales and use taxes on monies Enterprise collected from its customers for purchases of the CDW. The court of appeal considered the res nova issue and concluded that the CDW payments were part of the gross proceeds derived from the lease or rental of automobiles and, therefore, were taxable. The court stated:

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

Id. at 980.

After reviewing this record, the relevant statutes and jurisprudence, we find that proceeds derived from the LDW sales to RAC customers constitute “gross proceeds derived from the lease or rental of tangible personal property,” within the meaning of LSA-R.S. 47:302(B). The real object of 17the transactions between RAC and its customers was the rental/lease of tangible personal property, such as home electronics and furniture. Like the CDW product in Enterprise Leasing, supra, the LDW product can only be made available if a customer rents or leases tangible personal property from RAC. The company cannot separate the LDW from the principal rental/lease because the LDW does not exist without the lease of the property. Additionally, the LDW cannot be purchased from another renter/lessor. LDW payments are merely incidental to the rental/lease of the tangible property. Accordingly, we find that the district court did not err in granting summary judgment in favor of the Commission or in denying RAC’s motion for summary judgment.

RAC also contends the district court erred in awarding penalties in favor of the Commission. RAC argues that it did not collect or remit taxes for the LDW contracts because it believed, in good faith, that the LDW was not subject to taxation.

LSA-R.S. 47:1602 provides, in pertinent part:

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

(Emphasis added).

In Wal-Mart Stores, Inc. v. Fitch, 36,762 (La.App.2d Cir.1/29/03), 836 So.2d 1155, writ denied, 2003-0593 (La.4/25/03), 842 So.2d 411, the | RCaddo-Shreveport Sales and Use Tax Commission conducted a sales and use tax audit of all Sam’s Club stores in Caddo Parish for the periods July 1995 through June 1999. Based on its audit, the Commission determined that sales and use taxes were owed on the monies collected for Sam’s Club membership fees. The Commission assessed taxes, interest, penalties and attorney’s fees. Sam’s Club/Wal-Mart paid the taxes under protest and filed suit for a refund. The trial court granted summary judgment in favor of the Commission and ordered the release from escrow of all sums paid under protest to the Commission.

On appeal, Wal-Mart/Sam’s Club contested, inter alia, the imposition of interest and penalties. It argued that it did not collect and remit taxes on the memberships because it relied on a 1992 decision of the Louisiana Board of Tax Appeals, which ruled that the membership fees were not taxable. Wal-Mart contended the imposition of penalties and interest was “unwarranted and unfair” because it had relied upon the 1992 decision. This court affirmed the trial court’s judgment on the issue of interest and penalties, stating, “We have examined the applicable provisions of [the local ordinance] and the legislative statutes referred to therein, as well as the jurisprudence interpreting those statutes, and have found no provisions requiring the court to remit the interest and penalty imposed by the Commission.” Id. at 1160.

Also, in Enterprise Leasing, supra, the court found no error in the assessment of penalties. The court stated:

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

Id. at 982.

We agree with these decisions. LSA-R.S. 47:1602(A) provides that a penalty “shall be imposed” when a taxpayer fails to timely remit taxes owed. Additionally, we have reviewed the relevant ordinances, statutes and jurisprudence, and find that none of the provisions require the court to remit penalties imposed by the Commissioner. Accordingly, we find that the district court herein did not err in awarding penalties in favor of the Commission. This assignment lacks merit.

RAC also contends the district court erred in awarding attorney’s fees. At the time this action was filed, LSA-R.S. 47:1512 provided:

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

(Emphasis added).

RAC argues that LSA-R.S. 47:1512 does not apply because it is not a “tax debtor.” RAC also argues that since the taxes have been paid under protest, it was not necessary for the Commission to retain counsel to collect taxes.

This argument lacks merit. The relevant statute provides that if an attorney is retained to assist in the collection of taxes, “an additional charge |infor attorney’s fees” shall be paid by the tax debtor. Payment of taxes under protest is not a timely payment of taxes so as to avoid liability for attorney’s fees. See, South Central Bell Telephone Co. v. Traigle, 367 So.2d 1143 (La.1978); Enterprise Leasing Co., supra.

RAC also contends the award of attorney’s fees violated La. Const. Art. VII, § 3. RAC argues that it was authorized to submit the taxes under protest pursuant to LSA-R.S. 47:337.63. According to RAC, it merely asserted its legal right to contest the “erroneous assessment” of taxes by paying its taxes under protest. RAC argues that the imposition of attorney’s fees unconstitutionally creates a “cost barrier” for those who choose to challenge taxes that are illegally assessed.

La. Const. Art. VII, § 3 provides, in pertinent part:

(A) The legislature shall prohibit the issuance of process to restrain the collection of any tax. It shall provide a complete and adequate remedy for the prompt recovery of an illegal tax paid by a taxpayer.

In City of Baton Rouge v. Stauffer Chemical Co., 500 So.2d 397 (La.1987), the Court concluded that the provisions of LSA-R.S. 47:1512 and related local ordinances did not violate the constitution. The Court explained, “[These provisions] are subject to judicial scrutiny on a case by case basis regarding whether the attorney fees as mandated by law are |;.reasonable and not excessive under the circumstances.” Id. at 401.

In the instant case, contrary to RAC’s argument, awarding statutorily mandated attorney’s fees does not interfere with a tax debtor’s right to pay taxes under protest. Pursuant to LSA-R.S. 47:337.63, RAC remitted the payment to the Commission and notified the Commission of its intention to file suit to recover the amount of the payment. The district court did not interfere with RAC’s right to remit the taxes under protest. Rather, the court awarded attorney’s fees for legal services rendered in connection with RAC’s ensuing lawsuit as mandated by LSA-R.S. 47:1512. Nothing in the Constitution prohibits the court from awarding attorney’s fees in this case. This assignment lacks merit.

The Commission has answered RAC’s appeal and requested additional attorney’s fees incurred for the appeal of this matter. Generally, an increase in attorney fees is allowed where a party was awarded attorney fees by the trial court, is forced to defend an appeal, and is successful on appeal. However, even though requested, additional attorney fees may not be granted where the appellate court finds that the amount awarded in the trial court was sufficient to compensate counsel for both the work at the trial court and the appellate court levels. Family Care Services, Inc. v. Owens, 45,505 (La.App.2d Cir.8/11/10), 46 So.3d 234; Sims v. Sun Chemical Corp., 34,947 (La.App.2d Cir.8/22/01), 795 So.2d 439.

In the instant case, in his request for additional attorney’s fees, counsel for the Commission did not include an invoice or affidavit to show a specific amount for the work completed in connection with this 112appeal. However, because we have affirmed the district court’s findings in favor of the Commission, we find , it appropriate to award a reasonable amount of attorney’s fees for the appeal. Given the nature of the case, we find an additional award in the amount of $2,500 is reasonable. We thus amend the judgment to add an award of attorney’s fees for the defendant in the amount of $2,500. ■

' CONCLUSION

For the foregoing reasons, we affirm the summary judgment in favor ' of Lincoln Parish Sales & Use Tax Commission. The judgment is amended to award an additional $2,500 in attorney’s fees for the appeal. The judgment, as amended, is affirmed. Costs of the appeal are assessed to appellant.

AMENDED; AFFIRMED AS AMENDED.

      . Each customer who opts to rent/lease is required to sign a "Rental Purchase Agreement,” which sets forth a description of the property rented/leased, the term of the lease, the frequency of payments (weekly, semimonthly or monthly), the amount of each payment, the amount of each payment for "optimal liability damage” and taxes.

      . The applicable ordinances include City of Ruston Ordinance No. 941, as well as certain Lincoln Parish School Board and Lincoln Parish Police Jury ordinances which contain similar provisions.

      . LSA-R.S. 47:337.63 provides, in pertinent part:
      A. (l)(a) Any taxpayer protesting the payment of any amount found due by the collector or the enforcement of any provision of law in relation thereto shall remit to the collector the amount due and at that time shall give notice of intention to file suit for the recovery of such tax[J