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    UTELCOM, INC. and UCOM, Inc. v. Cynthia BRIDGES, in her Capacity as Secretary of the Department of Revenue, State of Louisiana.
    No. 2010 CA 0654.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 12, 2011.
    Rehearing Denied Nov. 1, 2011.

      William M. Backstrom, Jr., Edward D. Wegmann, Kathryn S. Friel, Jones, Walker, Waechter, Poitevent, Carrére & De-négre, L.L.P., New Orleans, LA, Christopher D. Martin, Jones, Walker, Waechter, Poitevent, Carrére & Denégre, L.L.P., Baton Rouge, LA, for Plaintiffs-Appellants/Appellees UTELCOM, Inc. and UCOM, Inc.
    John J. Weiler, Christian N. Weiler, Weiler & Rees, L.L.C., New Orleans, LA, for Defendant-Appellee/Appellant Cynthia Bridges, Secretary of the Department of Revenue, State of Louisiana.
    J. Grant Coleman, Robert J. Burvant, King, Krebs & Jurgens, P.L.L.C., New Orleans, LA, Amicus Curiae Polychim, Inc.
    Before PARRO, GUIDRY, and HUGHES, JJ.
   PARRO, J.

12Plaintiffs, UTELCOM, Inc. and UCOM, Inc. (collectively, the companies), have appealed a judgment of the trial court granting a motion for partial summary judgment in favor of Cynthia Bridges, in her capacity as Secretary of the Louisiana Department of Revenue (the Department), finding that the companies were subject to the Louisiana corporation franchise tax for the taxable periods ending on December 31, 2001, December 31, 2002, and December 31, 2003 (the relevant periods). For the reasons that follow, we affirm in part, reverse in part, and render.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

UTELCOM and UCOM are foreign corporations organized under the laws of Kansas and Missouri, respectively. The companies are part of an affiliated group of corporations whose parent corporation was Sprint Corporation. Neither UTELCOM nor UCOM was registered or qualified to do business in Louisiana during the relevant periods, and each company maintained its only commercial domicile exclusively outside of Louisiana. The companies owned limited partnership interests in three Delaware limited partnerships: (1) Sprint Communications Company LP (Sprint Communications LP), which is a long distance telecommunications company; (2) Sprint Enterprises LP (Enterprises LP), which handles wireless communications; and (3) SprintCom Equipment Company LP (Equipment LP), which owns telecommunications equipment that is leased to other Sprint affiliates. Sprint Communications LP was registered in Louisiana as a foreign limited partnership and conducted business in Louisiana. It is owned by UCOM and UTELCOM, as limited partners, and by US Telecom, Inc. (US Telecom), as a general ^partner.'

The companies initially filed Louisiana Corporation Income/Franchise Tax Returns for each of the relevant periods and paid both income and franchise taxes for those periods. Thereafter, the Department conducted an audit of the returns and issued notices of proposed taxes due, alleging that the companies owed additional franchise taxes and interest for the relevant periods. In response to these notices, the companies paid, under protest, a total of $276,518.40 in additional franchise taxes and related interest to the Department, pursuant to LSA-R.S. 47:1576. On August 11, 2005, the companies filed a petition for recovery of the franchise taxes and interest paid under protest, denying that they were subject to the franchise tax and seeking a refund of the entire amount paid under protest, plus statutory interest. In addition to claiming that the Department had improperly applied the Louisiana statutes pertaining to the imposition of the franchise tax to them, the companies further contended that the proposed assessment of the franchise tax by the Department violated the privileges, immunities, and protections afforded them by the Commerce Clause of the United States Constitution and the Due Process and Equal Protection Clauses of the United States and Louisiana Constitutions.

The companies and the Department filed cross-motions for summary judgment concerning the companies’ claim for recovery of the monies paid under protest. The Department’s motion sought a partial summary judgment in its favor, finding that, as a matter of law, the proposed franchise tax assessment (1) fully complied with the Louisiana franchise tax laws, and (2) was not in violation of the Commerce Clause of the United States Constitution or the Due Process or Equal Protection Clauses of the United States and Louisiana Constitutions. The companies’ motion sought a summary judgment in their favor, finding that (1) none of the incidents of taxation specified in LLSA-R.S. 47:601 were present during the relevant periods; (2) LAC 61:I.301(D), the regulation relied on by the Department to purportedly interpret LSA-R.S. 47:601, was invalid, as it was beyond the scope of the statute; and (3) the Department’s attempt to impose the franchise tax on the companies violated the protections afforded them by the Due Process and Commerce Clauses of the United States Constitution. In support of these respective motions, the Department filed the affidavits of Mike Pearson and Anthony Caruso, and the companies filed two affidavits from Mark Beshears. Thereafter, the Department filed a motion for attorney fees pursuant to LSA-R.S. 47:1512 and motions to strike the affidavits of Mark Beshears. The companies also filed motions to strike the affidavits of Anthony Caruso and Mike Pearson.

After a hearing, the trial court rendered a judgment granting the Department’s motion for partial summary judgment, finding that the companies owed the additional Louisiana corporate franchise tax and related interest for the relevant periods. The trial court further found that the proposed assessment of franchise tax fully complied with Louisiana’s franchise tax laws and did not violate the relevant Louisiana and United States constitutional provisions. The motion for summary judgment filed by the companies was denied. The judgment further ordered the companies to pay the Department’s attorney fees in the amount of 10% of the additional corporation franchise tax and related interest awarded in accordance with the provisions of LSA-R.S. 47:1512. In addition, the judgment ordered that the affidavits of Anthony Caruso and Mike Pearson, which had been submitted by the Department, be stricken in their entirety. Finally, the judgment ordered that the original affidavit of Mark Beshears dated October 2, 2009, be stricken as to paragraphs 7, 8, 9, 14,19, 21, 22, and 23, and that the affidavit of Mark Beshears dated October 15, 2009, be stricken as to paragraphs 5, 6, 7, 8, 9, 10,11,12, and 13.

Ifilt is from this judgment that the companies have appealed. The Department has answered the appeal with regard to the trial court’s ruling concerning the affidavits of Anthony Caruso and Mike Pearson. In its answer, the Department has also requested that the companies be required to pay all costs of court, in both the trial and appellate courts, and that it be awarded additional attorney fees on appeal.

SUMMARY JUDGMENT

An appellate court’s review of a summary judgment is a de novo review based on the evidence presented to the trial court, using the same criteria used by the trial court in deciding whether a summary judgment should be granted. Buck’s Run Enterprises, Inc. v. Mapp Const., Inc., 99-3054 (La.App. 1st Cir.2/16/01), 808 So.2d 428, 431. A motion for summary judgment should be granted only if all the pleadings, depositions, answers to interrogatories, admissions, and any affidavits submitted to the trial court show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(B). If the issue before the court on the motion for summary judgment is one on which the party bringing the motion will bear the burden of proof at trial, the burden of showing that there is no genuine issue of material fact is on the party bringing the motion. See LSA-C.C.P. art. 966(C)(2).

RELEVANT LAW

The Louisiana corporate franchise tax is imposed pursuant to LSA-R.S. 47:601, which, during the relevant periods, provided:

A.Every domestic corporation and every foreign corporation, exercising its charter, or qualified to do business or actually doing business in this state, or owning or using any part or all of its capital, plant, or any other property in this state, subject to compliance with all other provisions of | filaw, except as otherwise provided for in this Chapter shall pay an annual tax at the rate of $3.00 for each $1,000.00, or major fraction thereof on the amount of its capital stock, surplus, undivided profits, and borrowed capital, determined as hereinafter provided; the minimum tax shall not be less than $10.00 per year in any case. The tax levied herein is due and payable on any one or all of the following alternative incidents:
(1)The qualification to carry on or do business in this state or the actual doing of business within this state in a corporate form. The term “doing business” as used herein shall mean and include each and every act, power, right, privilege, or immunity exercised or enjoyed in this state, as an incident to or by virtue of the powers and privileges acquired by the nature of such organizations, as well as, the buying, selling, or procuring of services or property.
(2) The exercising of a corporation’s charter or the continuance of its charter within this state.
(3) The owning or using any part or all of its capital, plant, or other property in this state in a corporate capacity.
B. It is the purpose of this Section to require the payment of this tax to the state of Louisiana by domestic corporations for the right granted by the laws of this state to exist as such an organization, and by both domestic and foreign corporations for the enjoyment, under the protection of the laws of this state, of the powers, rights, privileges, and immunities derived by reason of the corporate form of existence and operation. The tax hereby imposed shall be in addition to all other taxes levied by any other statute.
C. (1) As used herein the term “domestic corporation” shall mean and include all corporations, joint stock companies or associations, or other business organizations organized under the laws of this state which have privileges, powers, rights, or immunities not possessed by individuals or partnerships.
(2) The term “foreign corporation” shall mean and include all such business organizations as hereinbefore described in this Paragraph which are organized under the laws of any other state, territory or district, or foreign country.
D. The increase in the tax imposed by this Section from one dollar and fifty cents to three dollars for each one thousand dollars, or major fraction thereof, of capital stock, surplus, undivided profits, and borrowed capital shall not be applicable to the first three hundred thousand dollars of capital stock, surplus, undivided profits, and borrowed capital of each corporation.

Taxing statutes are to be interpreted liberally in favor of the taxpayer and against the taxing authority. See Goudchaux/Maison Blanche. Inc. v. Broussard, 590 So.2d 1159, 1161 (La.1991). If the statute can reasonably be interpreted more than one way, the interpretation less onerous to the taxpayer is to be adopted. Entergy Louisiana, Inc. v. Kennedy, 03-0166 (La.App. 1st Cir.7/2/0S), 859 So.2d 74, 79, writ denied, 03-2201 (La.11/14/03), 858 So.2d 430; see also United Gas Corporation v. Fontenot, 241 La. 564, 579, 129 So.2d 776, 781 (1961).

Furthermore, words defining a thing to be taxed should not be extended beyond their clear import. Cleco Evangeline, LLC v. Louisiana Tax Com’n, 01-2162 (La.4/3/02), 813 So.2d 351, 355. Absent evidence to the contrary, the language of the statute itself must clearly and unambiguously express the intent to apply to the property in question. Unless the words imposing the tax are expressly in the statute, the tax cannot be imposed. Id.

DISCUSSION

On appeal, the companies contend that the trial court erred in granting the Department’s motion for partial summary judgment, finding that the companies were subject to the franchise tax for the relevant periods. The companies note that LSA-R.S. 47:601(A) authorizes the imposition of the franchise tax only on a corporation, and only if the corporation undertakes one or more of the enumerated incidents of taxation in Louisiana and does so in a corporate capacity. The companies contend that they were not subject to the franchise tax for the relevant periods, because they were non-resident corporations whose only contacts with Louisiana were through their passive ownership interests as limited partners in Sprint Communications LP, a limited partnership that owned property and conducted business in Louisiana. The companies insist that this connection is insufficient to impose the franchise tax on them as a matter of law.

According to the statement of uncontested facts submitted by the companies in support of their motion for summary judgment, as well as the pleadings and answers to interrogatories in the record, neither company was registered or qualified to do business in Louisiana or engaged in any business activities in Louisiana during the relevant periods. Furthermore, during the relevant periods, neither company: (1) rendered any services to or for any affiliate, or to or for any other party in Louisiana; (2) had any employees, independent contractors, agents, or other representatives in | ¡¿Louisiana; (3) bought, sold, or procured any services or property in Louisiana; or (4) maintained any bank accounts in Louisiana. Finally, each company maintained its office and only commercial domicile outside Louisiana, where the companies maintained their respective corporate books and records and where all management decisions regarding their respective limited partnership interests in Sprint Communications LP were made and implemented.

The Department does not appear to dispute any of these facts. Instead, the Department contends that the companies are subject to the franchise tax based on the actions of other entities. The Department emphasizes the fact that the companies are wholly-owned subsidiaries of Sprint Corporation and that the companies, along with US Telecom, Sprint Communications LP’s general partner, acted in unison and with a common purpose, controlled by their common parent. According to the Department, it is significant for franchise tax purposes that Sprint Corporation chose to carry out its telecommunications business in Louisiana through Sprint Communications LP and that it chose to direct that partnership through the companies and US Telecom, which were wholly-owned subsidiaries.

The Department does not provide any examples of how Sprint Corporation directed the activities of Sprint Communications LP or of the companies, other than to suggest that they were united in them purpose. However, “unity of purpose” does not appear anywhere as an incident of taxation in LSA-R.S. 47:601(A). Furthermore, Sprint Corporation, US Tele-com, Sprint Communications LP, and the companies are all separate juridical entities under the law. See LSA-C.C. arts. 24 and 2801; LSA-R.S. 12:41. The Department has provided no Louisiana codal, statutory, or jurisprudential authority to explain how the actions of these other entities are to be attributed to the companies, and nothing in LSA-R.S. 47:601 authorizes any such attribution.

The Department also contends that the actions of US Telecom, as the general partner for Sprint Communications LP, should be attributable to the companies, because |flUS Telecom carried out its actions on behalf of all partners. Thus, it appears that the Department is contending that US Telecom has acted as the agent for the companies. This argument has no basis in the law. As the only general partner, US Telecom has the authority to bind the partnership, but it has no authority to act as the agent for the limited partners, namely, the companies. See LSA-C.C. art. 2843. Accordingly, the Department’s argument that US Telecom’s actions can be attributed to the companies is without merit.

The Department’s main argument in support of its position that the companies are subject to the franchise tax is based primarily on its own regulation, LAC 61:I.301(D), which provides:

Thus, the mere ownership of property within this state, or an interest in property within this state, including but not limited to mineral interests and oil payments dependent upon production within Louisiana, whether owned directly or by or through a partnership or joint venture or otherwise, renders the corporation subject to franchise tax in Louisiana since a portion of its capital is employed in this state. [Emphasis added.]

It is true that the Secretary of the Department has the authority to prescribe rules and regulations to carry out the purposes of Title 47 of the Louisiana Revised Statutes, and such rules and regulations will have the full force and effect of law if promulgated pursuant to the Administrative Procedure Act. See LSA-R.S. 47:1511. However, it is well-settled law in Louisiana that a tax regulation cannot extend the taxing jurisdiction of the statute, as taxes are imposed by the legislature, not the Department. See Chicago Bridge & Iron Co. v. Cocreham, 317 So.2d 605, 612 (La.1975), cert. denied, 424 U.S. 953, 96 S.Ct. 1427, 47 L.Ed.2d 359 (1976); Pensacola Const. Co. v. McNamara, 558 So.2d 231, 233-34 (La.1990); Dow Chemical Co. v. Traigle, 336 So.2d 285, 288 (La.App. 1st Cir.), cert. denied, 339 So.2d 845 (La.1976).

In light of the above, it appears the salient issue is whether this regulation was a reasonable interpretation of the relevant statutory authority setting forth the bases for the imposition of Louisiana’s corporate franchise tax, or was a prohibited expansion of the scope of the statute. See LSA-R.S. 47:601(A). Under the facts of this case, there can be no dispute that the incidents of taxation specified in LSA-R.S. 47:601(A)(1) and (2) were not present with respect to the companies during the relevant periods. Therefore, our analysis will focus on the incident of taxation set forth in LSA-R.S. 47:601(A)(3).

Under the provisions of LSA-R.S. 47:601(A)(3), the franchise tax is imposed only on a corporation “owning or using any part or all of its capital, plant, or other property in [Louisiana] in a corporate capacity.” No mention is made of the use of capital through a partnership or in any other indirect capacity. Indeed, LSA-R.S. 47:601(B) states that the purpose of the franchise tax is to require the payment of the tax by both foreign and domestic corporations “for the enjoyment, under the protection of the laws of this state, of the powers, rights, privileges, and immunities derived by reason of the corporate form of existence and operation.” (Emphasis added.) Furthermore, in interpreting LSA-R.S. 47:601, the Louisiana Supreme Court has stated:

The thrust of the statute is to tax not the interstate business done in Louisiana by a foreign corporation, but the doing of business in Louisiana in a corporate form....

Colonial Pipeline Co. v. Agerton, 289 So.2d 93, 97 (La.1974), aff'd, 421 U.S. 100, 95 S.Ct. 1538, 44 L.Ed.2d 1 (1975). Yet, the Department’s regulation has ignored the clear wording of the statute and the interpretation of the supreme court and seeks to expand the scope of the specific “incident of taxation” at issue, i.e., LSA-R.S. 47:601(A)(3).

Instead of a corporation being subject to the franchise tax simply for owning or using any part or all of its capital, plant, or other property in this state “in a corporate capacity” as provided in LSA-R.S. 47:601(A)(3), the above regulation attempts to subject a foreign corporation to the franchise tax for the “additional incident” of owning In or using a part of its capital in this state, not in a corporate capacity but indirectly through a limited partnership. This is clearly an impermissible expansion of the statutory language.

It is undisputed that the companies, as limited partners, made various “capital” contributions to Sprint Communications LP, as required by the partnership agreement. See also LSA-C.C. art. 2840. However, once those contributions were made, the capital belonged to Sprint Communications LP and not to the companies, because Sprint Communications LP, as a partnership, is a separate juridical person, distinct from its partners. See LSA-C.C. art. 2801. Therefore, the capital that had been owned by the companies was now owned and being used by Sprint Communications LP in Louisiana. The companies, as limited partners, maintained an ownership interest in Sprint Communications LP, but the capital itself was no longer owned or used by them; thus, the incident of taxation set forth in LSA-R.S. 47:601(A)(3) was not applicable. Under the plain wording of the statute, there was no statutory incident of taxation on which to impose the franchise tax, and any attempt by the Department to administratively expand the scope of the statute beyond its clear meaning is not permissible. See Cleco Evangeline, LLC, 813 So.2d at 355. Accordingly, the trial court erred in granting partial summary judgment in favor of the Department, and that portion of the judgment is reversed. Moreover, we grant summary judgment in favor of the companies.

The companies have also challenged that portion of the trial court’s judgment that found that the assessment of franchise taxes on them was not in violation of the Commerce Clause of the United States Constitution or the Equal Protection or Due 112Process Clauses of the United States and Louisiana Constitutions. Courts should not pass on the constitutionality of legislation, unless it is essential to the decision of the case or controversy. Moreover, courts should avoid constitutional rulings when the case can be decided on the basis of nonconstitu-tional issues. Blanchard v. State Through Parks and Recreation Com’n, 96-0053 (La.5/21/96), 673 So.2d 1000, 1002. Because we have already determined that assessment of the franchise tax on the companies is improper under the language of the statute itself, the question of constitutionality is not essential to the determination of the issues before this court. Accordingly, the issues of constitutionality are pretermitted.

Nevertheless, we will briefly address three cases, which the Department has contended are dispositive of the constitutional issues in this matter. The three cases are Bridges v. Autozone Properties, Inc., 04-0814 (La.3/24/05), 900 So.2d 784, Secretary, Dept. of Revenue, State of La. v. GAP (Apparel), Inc., 04-0263 (La.App. 1st Cir.6/25/04), 886 So.2d 459, and Bridges, Secretary of Dept. of Revenue, State v. Geoffrey, Inc., 07-1063 (La.App. 1st Cir.2/8/08), 984 So.2d 115, writ denied, 08-0547 (La.4/25/08), 978 So.2d 370.

In Autozone, the issue was whether Louisiana had taxing jurisdiction over the dividend income of a nonresident beneficiary, based on its investment in a company that did business in Louisiana and received the benefits, opportunities, and protections that arose as a result thereof. Autozone, 900 So.2d at 800. The supreme court ultimately determined that Louisiana had jurisdiction to tax the dividend income; however, the court did not discuss the issue of jurisdiction with respect to the franchise tax. Therefore, the case is inapplicable to the matter before this court.

The same is true of this court’s decision in Geoffrey. While the trial court addressed the issue of the franchise tax, finding that the Department had established its entitlement to the franchise tax, the taxpayer did not assign that ruling as error or |isattack the validity of the statute. Therefore, this court’s decision addressed only the issues surrounding the assessment of the corporate income tax, and it provides no guidance as to the applicability of the franchise tax in this matter. Geoffrey, 984 So.2d at 119 n. 5.

Finally, in Gap (Apparel), this court addressed a corporate structure in which The Gap, Inc. had created, developed, and registered various trademarks, trade names, and service marks (the marks) that were used in its various retail stores throughout the United States, including those in Louisiana. At some point, through various transactions, The Gap transferred these marks to Gap (Apparel), which was a wholly-owned subsidiary of one of The Gap’s other subsidiaries. Gap (Apparel), 886 So.2d at 461.

After the marks were transferred, Gap (Apparel) and The Gap entered into an agreement whereby Gap (Apparel) granted a license to The Gap authorizing The Gap and its affiliates (the licensees) to use the marks in connection with the manufacture, advertising, marketing, distribution, and sale of their products in the United States, its states, territories, and/or possessions. For the use of the marks, the licensees paid Gap (Apparel) a royalty based on the net sales of the licensed products throughout the area in which they were used. The Department contended that Gap (Apparel) received approximately $11.9 million from the licensees during the relevant tax periods as royalties for the use of the marks, calculated as a percentage of sales in Louisiana. Gap (Apparel), 886 So.2d at 461-62.

This court ultimately determined that the marks licensed by Gap (Apparel) had been used in Louisiana in such a way as to become an integral part of the licensees’ businesses in this state, such that the marks had acquired a business situs in this state. Thus, the court concluded that they were subject to taxation in Louisiana. Gap (Apparel), 886 So.2d at 462.

1 uThese facts are distinguishable from those of the matter currently before this court, however. In Gap (Apparel), the marks continued to be owned by Gap (Apparel) even though they had been licensed for use by others. Gap (Apparel) retained ownership of the marks and received income for their use by others, for which it sought to avoid paying taxes. Furthermore, Gap (Apparel), itself, owned property that was being used in the state. See LSA-R.S. 47:601(A)(3). In the instant case, the companies are paying income taxes on the income they derive from Sprint Communications LP’s business in this state; however, unlike Gap (Apparel), the property that Sprint Communications LP is using in this state belongs to it alone, not to the companies. In conclusion, these three cases would not be relevant to the matter before the court if the question of constitutionality were at issue.

The companies have also challenged that part of the trial court’s judgment finding that they are required to pay the Department’s attorney fees pursuant to LSA-R.S. 47:1512. However, as we have determined that the companies were not required to pay franchise taxes under a clear reading of the statute, it follows that the companies are not required to pay attorney fees under the penal provisions of LSA-R.S. 47:1512. Therefore, that portion of the judgment of the trial court is reversed.

In their final assignment of error, the companies contend that the trial court erred in striking certain paragraphs of the original affidavit of Mark Beshears, dated October 2, 2009. Mr. Beshears was the Senior Counsel-State and Local Tax of Sprint Nextel Corporation, and he had served as the Vice President-State and Local Tax of the companies during the relevant periods. As such, he was familiar with the business activities of the companies.

The trial court first ordered that paragraph 7 of the original affidavit, which provided that “[djuring the Relevant Periods, each Petitioner maintained its only commercial domicile exclusively outside of Louisiana,” be stricken. Although the trial court did not provide a reason for striking this paragraph, it is presumed that it was stricken because the trial court found it to be a legal conclusion. However, the issue of commercial domicile was settled as a result of the pleadings, when the companies | ^alleged in their petition that they had each maintained their only commercial domicile outside the state of Louisiana, and the Department admitted the allegation in its answer. The Department never amended its answer; therefore, the issue of commercial domicile was considered resolved by judicial admission, and Mr. Beshears’ statement was no longer a legal conclusion, but a statement of fact. Thus, paragraph 7 of the affidavit should not have been stricken.

The companies also challenge the trial court’s ruling regarding paragraphs 9, 14, and 19 of Mr. Beshears’ original affidavit. In these paragraphs, Mr. Beshears asserts that the companies: (1) did not own or use any part of their capital, plant, or other property in Louisiana during the relevant periods; (2) did not exercise or continue their respective charters in Louisiana during the relevant periods; and (3) did not purposely direct any of their activities toward or into Louisiana during the relevant periods. The trial court struck these paragraphs, apparently finding that they were impermissible legal conclusions. However, in his capacity as Vice President — State and Local Tax of the companies during the relevant periods, Mr. Beshears was certainly competent to testify from his personal knowledge of the companies’ activities. See LSA-C.C.P. art. 967. Clearly, as someone involved in the daily operation of the companies, Mr. Beshears would have personal knowledge of whether the companies directed any of the above activities toward Louisiana during the relevant periods. Furthermore, the mere fact that Mr. Beshears’ assertions in the affidavit track the incidents of taxation listed in LSA-R.S. 47:601(A) does not render them impermissible legal conclusions, as the Department contends; rather, the statements are simply factual statements based on Mr. Beshears’ personal knowledge and experience. Therefore, the trial court improperly struck paragraphs 9,14, and 19 from the affidavit.

The companies contend that the filing of the second Beshears affidavit has rendered the argument in favor of striking paragraphs 22 and 23 of the original 11fiBeshears affidavit moot. Those paragraphs provided information concerning the contents of the Sprint Communications LP partnership agreement and were stricken as hearsay because the actual partnership agreement was not attached. However, in the second affidavit, the partnership agreement was attached, and the partnership agreement itself was admitted into the record. Therefore, the companies contend that there is no longer any need to exclude these paragraphs.

In fact, the Department had challenged paragraphs 22 and 23 even after the attachment of the partnership agreement to the second affidavit on the ground that the partnership agreement itself was the best evidence of its contents. The trial court agreed, and we find no error in this conclusion.

The trial court also ordered that the two affidavits filed by the Department be stricken from the record. The Department has answered the appeal to challenge the rulings on these affidavits. The first affidavit was that of Michael Pearson and was filed by the Department in support of its partial motion for summary judgment. At the time he signed the affidavit, Mr. Pearson was the director of the policy services division of the Department. He had held that position for almost two years, after being the senior policy consultant for income and franchise taxes in the policy services division for the previous seven years, in which there had been no director. According to Mr. Pearson’s affidavit, he was very knowledgeable on the issue of the Louisiana corporation franchise tax, and he had testified over the years in the Nineteenth Judicial District Court and the Louisiana State Board of Tax Appeals on the issue of the Louisiana corporate income and franchise taxes. He does not, however, make any allegations that he is a lawyer in the affidavit. The remainder of his affidavit provides a myriad of legal conclusions allegedly based on Louisiana statutory law and jurisprudence, as well as Department policy, which legal conclusions support the Department’s premise that the companies are subject to the franchise tax.

Mr. Pearson’s affidavit does not qualify him as an expert, and the trial court | ncertainly did not accept him as one. Nothing in his affidavit demonstrates that he is qualified to render a legal opinion. Furthermore, as a lay witness, Mr. Pearson is not qualified to offer an opinion of the kind he attempted to offer in his affidavit. See LSA-C.E. art. 701.

It is also well-settled in Louisiana that witnesses may not provide opinions regarding domestic law. The testimony of an expert, with the attendant right to express opinions and conclusions, is proper for the purpose of assisting the court only in those fields in which the court lacks sufficient knowledge to enable it to come to a proper conclusion without such assistance. Wilson v. Wilson, 542 So.2d 568, 573 (La.App. 1st Cir.1989); Clesi, Inc. v. Quaglino, 137 So.2d 500, 503 (La.App. 4th Cir.1962). The domestic law testimony of an expert is not proper, as distinguished from foreign law testimony, on the theory that the court itself is the expert on domestic law. Wilson, 542 So.2d at 573.

Furthermore, nothing in Mr. Pearson’s affidavit appears to be based on personal knowledge as required by LSA-C.C.P. art. 967(A), and the affidavit appears to contain nothing other than his opinions relating to issues of ultimate fact and conclusions of law, which are reserved for the trial court’s determination. Accordingly, we find that the trial court was correct in striking this affidavit.

The final affidavit is that of Anthony Caruso, who at the time he signed his affidavit, was employed by the Department as a senior revenue agent. The affidavit had been submitted by the Department in opposition to the companies’ motion for summary judgment. Mr. Caruso claims that the statements in his affidavit are based on the personal knowledge he obtained after conducting an audit of the companies.

In paragraph 3 of the affidavit, Mr. Caruso stated that the companies were required to file Louisiana corporate franchise tax returns for the relevant periods. In paragraph 14, Mr. Caruso stated that the companies, through them contributions of capital to Sprint Communications LP, which clearly conducted business in Louisiana, have engaged in business, exercised their respective charters, and employed capital in Louisiana. In paragraph 15 of the affidavit, Mr. Caruso stated that the companies are | issubject to the franchise tax. Obviously, these statements relate to issues of ultimate fact and conclusions of law, which are reserved for the trial court’s determination, and the trial court was correct in striking paragraphs 3, 14, and 15 of the affidavit. The remainder of the affidavit contains factual statements, such as the amounts of capital contributions the companies made to Sprint Communications LP and other information that Mr. Caruso could have obtained in performing his audit. This information was based on his personal knowledge and was properly contained in the affidavit. Therefore, paragraphs 1, 2, 4, 5, 6, 7, 8, 9,10, 11, 12, and 13 should not have been stricken, and the trial court erred in this regard.

Finally, in its answer to the appeal, the Department has also requested that it be awarded additional attorney fees on appeal. However, as we have determined that the companies were not required to pay a franchise tax under the facts of this case, no attorney fees should have been assessed against them pursuant to LSA-R.S. 47:1512, and no additional attorney fees are owed on appeal.

CONCLUSION

For the foregoing reasons, we reverse that portion of the trial court judgment that granted the partial summary judgment in favor of Cynthia Bridges, Secretary of the Louisiana Department of Revenue, and render summary judgment in favor of UTELCOM, Inc. and UCOM, Inc., finding that they are not subject to the Louisiana corporation franchise tax for the taxable periods ending December 31, 2001, December 31, 2002, and December 31, 2003. UTELCOM, Inc. and UCOM, Inc. are further entitled to a refund of the amount paid under protest, $276,518.40, plus statutory interest. We further reverse that portion of the judgment ordering UTELCOM, Inc. and UCOM, Inc. to pay attorney fees pursuant to LSA-R.S. 47:1512. We affirm that portion of the judgment striking paragraphs 22 and 23 of the original affidavit of Mark Beshears. However, we reverse that portion of the trial court’s judgment striking paragraphs 7, 9, 14, and 19 of the original affidavit of Mark Beshears. We further affirm that portion of the trial court’s judgment striking the affidavit of Mark Pearson in its entirety. Finally, we affirm that portion of the trial court’s judgment striking paragraphs 3, 14, and 15 of 119the affidavit of Anthony Caruso; however, we reverse that portion of the judgment striking paragraphs 1, 2, 4, 5, 6, 7, 8, 9, 10, 11, 12, and 13. In all other respects, the judgment of the trial court is affirmed. All costs of this appeal, in the amount of $2,529.82, are assessed to Cynthia Bridges, in her capacity as Secretary of the Louisiana Department of Revenue.

AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.

      . The "commercial domicile” of a corporation exists where the principal place of business is located and from which the corporation’s activities function and are managed. United Gas Corporation v. Fontenot, 241 La. 488, 509, 129 So.2d 748, 756 (1961).

      . It is undisputed that the companies were not registered or qualified to do business in Louisiana; however, the Department contends that the companies actually did conduct business in Louisiana through the actions of other entities. As for the issue of commercial domicile, the companies alleged in their petition that their commercial domiciles were located outside of Louisiana, and the Department admitted the allegation in its answer.

      . Enterprises LP and Equipment LP were owned by UCOM, as the limited partner, and by US Telecom, Inc., as the general partner. Neither partnership was registered as a foreign limited partnership in Louisiana, nor did they own any property or conduct any business in Louisiana. Therefore, they are not relevant to the issues in this matter.

      . Sprint Communications LP apparently had an additional limited partner, Sprint International Communications Corp.; however, this corporation is not involved in this matter.

      .The petition filed by the companies sought only the recovery of the franchise tax amounts and related interest paid under protest. According to the brief filed by the companies in this court, the companies intend to file amended franchise tax returns and seek refunds of the franchise taxes they had paid prior to the audit by the Department. Those taxes are not at issue in this matter.

      . The affidavit of Anthony Caruso was filed by the Department in opposition to the companies’ motion for summary judgment.

      . The parties also relied on the pleadings and answers to interrogatories in the record.

      . The original judgment signed by the trial court only stated that the motion for partial summary judgment of the Department had been granted and that the motion for summary judgment of the companies had been denied. After this court issued a rule to show cause to the parties, noting that the judgment failed to identify the specific relief awarded, the trial court signed an amended judgment more clearly setting forth the relief granted.

      .The Department originally filed a motion for partial summary judgment, believing that the issue of the amount of the taxes was still at issue; however, the companies did not challenge the amount of the taxes. The Department then filed its motion for attorney fees, stating that all issues were before the court. Under these circumstances, we conclude that all issues in this matter are reviewable under this appeal; therefore, the companies' appeal of the denial of its motion for summary judgment is properly before this court.

      . It is undisputed that any employees provided to Sprint Communications LP were provided by Sprint/United Management Company, a wholly-owned subsidiary of Sprint Corporation, and not by the companies.

      . The Department suggests that, because Sprint Communications LP is a Delaware partnership, Louisiana partnership law is inapplicable to this matter. However, during the relevant periods, Sprint Communications LP was registered to do business in Louisiana; therefore, it enjoyed the rights, privileges, and juridical status of a Louisiana partnership in accordance with LSA-R.S. 9:3422(A)(1). Delaware law applied only to the organization, internal affairs, and liability of Sprint Communications LP See LSA-R.S. 9:3425.

      . LSA-C.C. arts. 2843 and 2844 establish the limits of liability and authority on the limited partners (partners in commendam) in limited partnerships. Such limited partners, like the companies, do not participate in the control of the business and do not have the authority to bind the partnership. Furthermore, the Sprint Communications LP partnership agreement specifically provides that the companies shall have no right or power to take part in the management or control of the partnership or its business and affairs or to act for or bind the partnership in any way.

      . In essence, the role of a limited partner is that of a passive contributor whose powers are generally restricted to the protection of his interest. See LSA-C.C. art. 2843, Revision Comment — 1980. It would seem illogical to impose a franchise tax on a foreign corporation whose sole contact with Louisiana is through the passive ownership, as a limited partner, of an interest in a partnership, which owns property and does business in Louisiana, when the partnership itself is not subject to a franchise tax.

      . See LSA-C.C. art. 473.

      . The Department has contended that the companies have improperly challenged the regulation by not bringing the challenge in an action for declaratory judgment pursuant to LSA-R.S. 49:963(A); however, that statute merely states that the validity or applicability of a rule “may” be determined in an action for declaratory judgment in the district court of the parish in which the agency is located. As provided by LSA-R.S. 1:3, the word "may” is permissive, not mandatory.

      . The companies properly challenged the constitutionality of LSA-R.S. 47:601 in their petition. However, because they did not seek declaratory relief, service of the attorney general was not required. See LSA-C.C.P. art. 1880; Vallo v. Gayle Oil Co., Inc., 94-1238 (La.11/30/94), 646 So.2d 859, 864.

      . The issue of constitutionality also was not essential to the trial court’s ruling; therefore, the trial court should not have addressed the issue.

      . This factual pattern is similar to that found in Geoffrey; however, because this court did not address the franchise tax in any capacity in Geoffrey, those facts are not set forth here.

      . See LSA-C.C. art. 1853.

      . Although the companies challenge the court's ruling regarding paragraph 24, the actual judgment makes no reference to this paragraph. Accordingly, we will not address this paragraph.

      . The companies have not challenged any portion of the trial court's judgment striking paragraphs in the second Beshears affidavit. Therefore, we do not address that affidavit


source: Caselaw Access Project

author: GUIDRY, J.

license: Public Domain

text:
    STATE of Louisiana v. Wendell WESLEY.
    No. 2010 KA 2066.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 14, 2011.

      Ricky J. Ward, Jr., District Attorney, Elizabeth A. Engolio, Assistant District Attorney, Plaquemine, LA, for Appellee State of Louisiana.
    Frank Sloan, Louisiana Appellate Project, Mandeville, LA, for Defendant/Appellant Wendell Wesley.
    Before WHIPPLE, KUHN, and GUIDRY, JJ.
   GUIDRY, J.

| ¡.The defendant, Wendell Wesley, was charged by grand jury indictment with one count of second degree murder, a violation of La. R.S. 14:30.1, and pled not guilty. Prior to trial, he moved to suppress his second tape-recorded interview. Following a hearing, the trial court denied the motion to suppress, and the defendant applied to this court for supervisory relief concerning the ruling, but the writ application was denied. State v. Wesley, 10-0695 (La.App. 1st Cir.4/20/10) (Hughes, J., dissenting) (unpublished). Following a jury trial, the defendant was found guilty as charged. He was sentenced to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. He now appeals, contending that the trial court erred in denying the motion to suppress. For the following reasons, we affirm the conviction and sentence.

FACTS

On February 2, 2007, between 10:00 p.m. and 10:30 p.m., the victim, James Bethley, was shot to death in Bayou Goula, Louisiana. He suffered four gunshot wounds. The trajectory of the shots was from top-to-bottom, indicating he could have been shot while he was “down.”

Leo Young Jackson testified at trial. He was the victim’s brother, and the victim helped to raise him. Jackson denied killing the victim and identified the defendant as the killer at trial. According to Jackson, on the night of the incident, he met the defendant at Jackson’s house and then followed the defendant to his house, where they talked. Thereafter, another of Jackson’s brothers, Jonathan, wanted to go to White Castle to look for the victim, so Jackson drove Jonathan to White Castle. The men were unable to locate the victim in White Castle, and Jackson drove Jonathan home.

While driving, Jackson saw the defendant talking to his cousin by the fire station, so Jackson parked his truck and walked over to the men. Thereafter, Jackson 13gave the defendant a ride to the store. According to Jackson, while he and the defendant were talking in the parking lot of the store, the defendant pulled out a revolver and put it on the icebox. The defendant then put the gun back “in his pants area,” and he and. Jackson drove back down the street.

While Jackson and the defendant were driving, they saw the victim. So Jackson drove to Jonathan’s house and told him that the victim was outside. Jonathan said he would talk to the victim the next day. Jackson then drove the defendant back to Jackson’s house.

While Jackson was taking some trash to the street, he saw the defendant and the victim talking to each other. According to Jackson, he heard the defendant telling the victim, “you owe me, you going to pay me.” The victim told the defendant “it was something from last year and that he [the victim] didn’t give it to him [the defendant] then and that meant he [the defendant] wasn’t going to get it.” Jackson testified that the defendant then pulled out his gun, pointed it at the victim, “the gun went click,” and the victim ducked. When the victim “came back up,” the defendant shot him, and the victim grabbed his chest and dropped to the ground. Jackson also grabbed his chest, and started running. He heard the victim state, “[y]ou going to let it end like this?” He then heard two more gunshots.

In a December 2, 2007 statement, Amber Wesley, the defendant’s aunt, stated she had heard a gunshot on February 2, 2007, at 10:32 p.m., went outside, and saw a black male standing over a man and he “continued to shoot 3 more times.” In her written statement, Amber Wesley stated that the shooter was wearing “a dark colored hood.” At trial, however, she claimed the shooter was wearing a dark colored shirt. She also claimed that if the defendant had been the shooter, she would have recognized him.

On the morning following the shooting, a black-hooded sweatshirt and muddy shoes were recovered from the front porch of the defendant’s home. Carrie Cormier, |4the defendant’s mother, identified the shoes and sweatshirt as belonging to the defendant. At trial, however, she claimed she had never seen the shoes or sweatshirt before. The defendant also testified at trial. He denied killing the victim. He claimed he finished work at approximately 4:30 p.m. on the day of the incident and then went to a truck stop, purchased a beer, and drove towards his home. Prior to arriving at his house, he parked his truck and walked to the home of his cousin, Germaine Wesley. Germaine was about to leave to go to a club, so the defendant walked back to his house. He ate beans and fried chicken with his mother and stepfather and then stepped out to smoke a cigarette. According to the defendant, while he was smoking the cigarette, Jackson drove up and spoke to him for approximately thirty minutes about going fishing the next day. The defendant claimed Jackson left when Jonathan Beth-ley called him away. The defendant claimed he then walked to his grandmother’s house and also ate chicken with her. He claimed that as he was leaving his grandmother’s house, he saw his brother, Steve, and then went to the store and purchased another beer and some more chicken. The defendant claimed that at approximately 9:00 p.m., he played dice for one hour to one and one-half hours with Germaine Little, Mack Dolittle, Jason Favorite, and “Kool-Aid.” The defendant stated he then made repairs to the brake calipers on his truck. Just as he completed working on his truck, he said Jackson drove up and stated, “[M]an, what should I do,” but the defendant ignored him, and Jackson sped away. The defendant claimed he next saw police cars driving by, and when he arrived at his house, he heard the police were looking for him.

MOTION TO SUPPRESS STATEMENTS

In his sole assignment of error, the defendant argues the trial court erred in denying his motion to suppress statements because his grandmother, rather than he, initiated communication with the police after he invoked his right to counsel.

|fiWhen a trial court denies a motion to suppress, factual and credibility determinations should not be reversed in the absence of a clear abuse of the trial court’s discretion, i.e., unless such ruling is not supported by the evidence. See State v. Welch, 11-0274, p. 1 (La.4/29/11), 60 So.3d 603; State v. Green, 94-0887, p. 11 (La.5/22/95), 655 So.2d 272, 280-81. However, a trial court’s legal findings are subject to a de novo standard of review. See State v. Hunt, 09-1589, p. 6 (La.12/1/09), 25 So.3d 746, 751.

In Miranda v. Arizona, 384 U.S. 436, 444-45, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966), the Supreme Court found that if a suspect indicates “in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning.” Edwards v. Arizona, 451 U.S. 477, 481-85, 101 S.Ct. 1880, 1883-85, 68 L.Ed.2d 378 (1981), reconfirmed these views and, to lend them substance, held that when an accused either before or during interrogation asks for counsel, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated, custodial interrogation, even if he has been advised of his rights. The accused is not subject to further interrogation by the authorities until counsel is present, unless the accused himself initiates further communication, exchanges, or conversations with the police. Edwards, 451 U.S. at 484-85, 101 S.Ct. at 1884-85; see Maryland v. Shatzer, — U.S. -, -, 130 S.Ct. 1213, 1219, 175 L.Ed.2d 1045 (2010).

When a defendant invokes his Miranda right to counsel, the admissibility of his subsequent confessions under federal law is to be determined by a two-step analysis: it first must be asked whether the defendant “initiated” further conversation, and if the answer is yes it must be inquired whether the defendant waived his right to counsel and to silence, “that is, whether the purported waiver was knowing and intelligent ... under the totality of the circumstances, including the necessary fact that the accused, not the police, reopened the dialogue with the ^authorities.” State v. Abadie, 612 So.2d 1, 5(La.), cert. denied, 510 U.S. 816, 114 S.Ct. 66, 126 L.Ed.2d 35 (1993) (quoting Oregon v. Bradshaw, 462 U.S. 1039, 1044-45, 103 S.Ct. 2830, 2834, 77 L.Ed.2d 405 (1983)). See also La. R.S. 15:452 (no arrestee “shall be subjected to any treatment designed by effect on body or mind to compel a confession of crime.”). However, the accused may initiate further conversation with the police through another person. See State v. Carr, 530 So.2d 579, 589 (La.App. 1st Cir.), writ denied, 533 So.2d 354 (La.1988), cert. denied, 489 U.S. 1098, 109 S.Ct. 1573, 103 L.Ed.2d 939 (1989) (“after defendant invoked the right to counsel and before any subsequent interrogation, he reinitiat-ed further communication, exchange or conversation with the police when he telephoned his wife from jail, and asked to speak to and actually spoke with [a detective] .... [T]hat conversation evinced a willingness and desire on the part of the accused to open up a more generalized discussion relating directly or indirectly to the criminal investigation.”).

During the early hours of February 3, 2007, the defendant was twice questioned by detectives at the police department. He requested counsel during the first interview. Prior to trial, he moved to suppress his second tape-recorded interview because he requested counsel during his first tape-recorded interview.

Iberville Parish Sheriffs Office Chief of Detectives Blair Favaron testified at the hearing on the motion. During the early hours of February 3, 2007, he and Detective Ernest Williams were investigating the murder of the victim. The defendant was a suspect in the shooting, and “the word had gotten out” that the police were looking for him. Thereafter, the defendant came to the police department with his grandmother, Barbara Wesley, and his stepfather, Joe Cormier, who was a jailer with the Sheriffs Office. Detective Favar-on identified the Miranda warnings read to the defendant at 2:15 a.m. The defendant indicated he was nineteen years old and |7had a twelfth-grade education. Thereafter, he indicated he understood his rights and invoked his right to counsel. Accordingly, Detectives Favaron and Williams ended the interview.

Detectives Favaron and. Williams exited the interview room and informed Barbara Wesley and Joe Cormier that the defendant wanted an attorney, and thus, they could not talk to him. Barbara Wesley stated, “I would like to talk to him,” and the detectives allowed her to talk to the defendant alone in the interview room. Approximately five minutes later, Barbara Wesley came out of the room and informed Detectives Favaron and Williams that “he wants to talk to [Detectives Favaron and Williams] now.”

Thereafter, Detectives Favaron and Williams went back into the interview room, readvised the defendant of his Miranda rights and, after he waived those rights at 2:20 a.m., interviewed the defendant. Detective Favaron indicated no offer, threat, or coercion was used against the defendant to make him waive his rights. The defendant denied any involvement in the shooting of the victim. He claimed he had not seen the victim that night. He claimed he had seen Jackson at the defendant’s house, sometime after the defendant finished work at 4:00 p.m. The defendant claimed he was at home from approximately 4:30 p.m. to 12:00 a.m. and sat with his “mama” and stepfather and “ate chicken all night.” He claimed he was at Matthew Little’s house from 12:00 a.m. to 1:00 a.m. and at the time the police responded to the shooting. He denied ever owning a gun. He agreed his grandmother had told him “[o]nly Jesus can help you.” During the second interview, the defendant never indicated he did not want to talk to the detectives or that he wanted an attorney.

The State did not dispute that the defendant was subjected to custodial interrogation or that he invoked his right to counsel in the first interview. The State argued that the defendant thereafter reinitiated further communication with the detectives through his grandmother, who advised the detectives, “[the defendant] 18wants to talk to you now,” and everything that occurred subsequently, including the defendant being readvised of his Miranda rights and answering affirmatively that he wished to talk to the detectives, corroborated that fact. The defense argued that only five minutes passed between the two interviews, and the defendant never left the interrogation room. The trial court denied the motion to suppress. The court found that the uncontroverted evidence indicated the defendant had reinitiated further conversation with the police. Further, the court noted, based on the defendant’s highest level of education, the fact that he initially stated he wanted an attorney, and the fact that he subsequently waived his right to an attorney, the defendant freely, knowingly, and intelligently waived his rights, and his answers were freely and voluntarily given without coercion, force, or threats.

Barbara Wesley did not testify at the suppression hearing. She did, however, testify at trial. In response to questioning by the defense, she stated that she did not tell the defendant what to tell the detectives. She said she told him that he should talk to the detectives and tell them what happened; and she told him to tell the truth.

There was no error or abuse of discretion in the trial court’s denial of the motion to suppress. The defendant reinitiated conversation with the detectives through his grandmother and, thereafter, placed his initials on a Miranda warning/waiver form indicating “having been read these rights,” he “wish[ed] to make a statement or talk to [the police] now.” The totality of the circumstances indicate that the defendant knowingly and intelligently waived his rights.

Accordingly, based on our review of the record and the applicable law, we find this assignment of error is without merit and therefore affirm the defendant’s conviction for second degree murder and sentence.

CONVICTION AND SENTENCE AFFIRMED.

      . Detective Williams died prior to the hearing on the motion to suppress.

      . In determining whether the ruling on the motion to suppress was correct, we are not limited to the evidence adduced at the hearing on the motion. We may also consider all pertinent evidence given at the trial of the case. State v. Chopin, 372 So.2d 1222, 1223 n. 2 (La.1979).


author: CARTER, C.J.

text:
    Prince PRIMUS v. BRAND SERVICES, INC.
    No. 2011 CA 0009.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 14, 2011.
    George R. Tucker, Hammond, LA, for Plaintiff/Appellant, Prince Primus.

      Stephen M. Whitlow, Baton Rouge, LA, for Defendant/Appellee, Brand Services, Inc.
    Before CARTER, C.J., PARRO and HIGGINBOTHAM, JJ.
   CARTER, C.J.

| ¡.Claimant, Prince Primus, filed a disputed claim for compensation with the Office of Workers’ Compensation Administration, asserting that he was working at a job site for Brand Services, Inc. (Brand) on September 28, 2009, when he fell from a scaffold, causing injury.

After a trial on the merits on July 12, 2010, the workers’ compensation judge (WCJ) left the record open in order to allow the parties to submit an independent medical examination report for claimant’s independent medical examination, which was scheduled by the OWC Medical Services Office for August 9, 2010. Upon notification that claimant failed to appear for the examination, the judge closed the record and rendered judgment dismissing claimant’s claims against Brand for indemnity benefits and additional medical benefits with prejudice.

In making this ruling, the WCJ gave extensive reasons, noting that claimant was “less than truthful about his prior documented neck and back injuries” and “has been less than cooperative with appearing for scheduled medical appointments, which indicates to the court that further medical treatment is in all likelihood unnecessary.” The WCJ further noted that “[njone of the doctors who have examined Mr. Primus have declared him disabled.” Claimant appeals the judgment.

After a thorough review of the record, including the WCJ’s extensive written reasons attached hereto as Appendix A, we find no manifest error in the factual determinations of the WCJ or legal error in the judgment of ^dismissal., We affirm the judgment in accordance with Uniform Rules-Courts of Appeal, Rule 2-16.1(B). Costs are assessed against claimant, Prince Primus.

AFFIRMED.

APPENDIX A

PRINCE PRIMUS VS. BRAND SERVICES, INC.

DOCKET # 09-08926 DISTRICT 6

OFFICE OF WORKERS’ COMPENSATION

STATE OF LOUISIANA

WRITTEN REASONS

|,Prince Primus filed a disputed claim for compensation on October 23, 2009. He alleged injuries to his leg and back as a result of a September 28, 2009 accident while in the course and scope of his employment at Brand Services, Inc. (“Brand”). Over the course of the litigation, Mr. Primus filed several amended claims naming various Brand entities as his employer. However, at trial on the merits, exceptions of no cause of action were granted as to Brand Energy & Infrastructure and Brand Scaffold Builders, and the correct employer was stipulated to be Brand Services, Inc.

Trial was held on July 12, 2010. After taking testimony and evidence, the court left the record open specifically for the purpose of allowing the parties to submit the independent medical examination (IME) report of Dr. Thad Broussard. The IME was scheduled by the OWC Medical Services office for August 9, 2010 at 1:30 p.m.

On the afternoon of August 9, 2010, the court was notified by fax from the OWC Medical Services office that Mr. Primus failed to appear for the examination.

| pMr. Primus testified at trial. He testified that he is 27 years old and has been scaffolding since he was 18 years old. Mr. Primus testified that he has never had a previous workers’ compensation claim, and that he had been employed at Brand about three and a half months.

Mr. Primus testified that he had never had prior ankle, neck, or back injuries, and that he had never had any prior motor vehicle accidents.

Mr. Primus testified that the work accident occurred around 8:00 p.m. He testified that at the time of the accident, his ankle was in severe pain, and he also complained of back pain. He testified that the next day his mother took him to North Oaks Hospital for his upper back. He testified that he has not returned to work since the accident, and that he has not received wage payments.

Mr. Primus testified that he saw a doctor on Airline Highway on September 30, 2009.

On cross-examination, Mr. Primus testified that he fell 7 feet onto a pipe underneath him. He testified that Brand had no job available after the accident, but he was told he could come in and just sit around.

Mr. Primus was presented with medical records from North Oaks Hospital. Mr. Primus testified that he could not recall suffering a neck injury in September 2001. He testified that he did not have a motorcycle accident in January 2007 because he does not know how to ride a motorcycle. He testified that it must have been his brother posing as him on those visits.

IsDaJuan Carter, Jr. testified on Mr. Primus’ behalf. He testified that he saw Mr. Primus fall down onto a pipe maybe about 4 feet, but he was stopped by his harness.

Malcolm Pines also testified on Mr. Pri-mus’ behalf. He testified that he vaguely remembers the incident, and that he gave a statement to the safety personnel.

Brand’s “Supervisor’s Initial Investigation Report” (SIM) was admitted into evidence. The report indicates Mr. Primus sustained an injury to his left ankle. The report indicates that Mr. Primus’ foot was twisted between two scaffold planks, and he suffered a strained left ankle.

Medical records from River Parishes Hospital were admitted into evidence. The records indicate Mr. Primus was seen there on September 28, 2009, the day of the accident. He complained of left ankle pain after falling 7 feet and his left leg got caught between two boards. X-rays taken of the left lower leg, foot, and ankle were all interpreted as normal. He was discharged with crutches.

Medical records from North Oaks Hospital were admitted into evidence. The records indicate that Mr. Primus was seen there on September 29, 2009, the day after the accident. The nurse’s notes indicate that Mr. Primus was “popping wheelies in wheelchair in waiting room.” The notes indicate that Mr. Primus complained of falling off a scaffold the night before and twisting his ankle, but that now his back was hurting. He was discharged with medications and told to see his family physician.

|4The SIIR contains a medical report which indicates that Mr. Primus was seen at Gulf Coast Occupational Medicine, Inc. on Airline Highway on September 30, 2009, two days after the accident. He was diagnosed with low back pain, ankle sprain, and mid back pain and released to regular duty as tolerated. He was scheduled to return to the clinic on October 7, 2009, but there are no subsequent medical records from Gulf Coast Occupational Medicine, Inc.

Medical records from Dr. F. Allen Johnston were admitted into evidence. Mr. Primus elected to see Dr. Johnston as his choice of orthopaedist. Mr. Primus first saw Dr. Johnston on February 22, 2010. At that visit, Mr. Primus related that he was injured when his left ankle got stuck between two boards and he lost his balance and fell backwards. He related that his harness did not catch him. He related that after 24 hours, he developed pain in his neck and back. He denied any previous issues with his neck, back, or left ankle.

Dr. Johnston’s physical examination of the neck revealed a normal posture, no radiculopathy, and discomfort in the inter-scapular area but no trigger points. In examining the low back, Mr. Primus had a negative straight leg raise. His examination of the left ankle revealed a negative drawer exam, tenderness over the anterior talofibular ligament, and full range of motion. Dr. Johnston diagnosed Mr. Primus with a left ankle strain, rule out internal derangement, and cervical and lumbar strains. He recommended MRI of the left ankle, and physical therapy for the neck and back. He did not disable Mr. Primus from work.

1 ¿Medical records from Dr. Joe Morgan were admitted into evidence. Dr. Morgan’s billing records, as well as correspondence from Brand’s workers’ compensation administrator, indicate that Mr. Primus was originally scheduled to see Dr. Morgan on February 17, 2010. Mr. Primus did not see Dr. Morgan on February 17, 2010, and Brand’s workers’ compensation administrator was charged a $250.00 “no-show” fee. Mr. Primus eventually appeared for the rescheduled appointment on March 8, 2010.

Dr. Morgan’s March 8, 2010 report indicates Mr. Primus related an accident in which he fell from a scaffold. He related that he fell five feet or more, but did not fall to the ground. He related that he was held by a strap on the harness he was wearing, that he fell onto a pipe that was beneath the scaffold, and that his left foot was jammed under a board.

Mr. Primus denied any motor vehicle accidents, and other bone, joint or spine accidents or problems except fractures to both arms long ago. He also related prior chiropractic treatment a long time prior, but could not remember details.

Based on his examination and x-rays of the neck, back, and ankle which he performed at his office, Dr. Morgan stated that he could not find any orthopaedic or neurologic abnormality in Mr. Primus. He stated that Mr. Primus may have sustained a closed injury to his left ankle from which he had made a complete recovery. Dr. Morgan felt that Mr. Primus was not in need of further diagnostic work-up or treatment for injuries he may have sustained in the accident. Dr. |BMorgan did not place any work restrictions on Mr. Primus and considered him to be at maximum medical improvement.

Medical records from North Oaks Hospital indicate that Mr. Primus presented to the emergency room on January 25, 2007 complaining of back and rib pain from a motorcycle accident, but he left without being treated. The records also indicate that Mr. Primus presented to the emergency room on December 18, 2006 complaining of neck, low back, and left thumb pain from a motor vehicle accident in which he was an unrestrained driver. The records further indicate that Mr. Primus presented to the emergency room on September 24, 2001 complaining of neck pain after being hit by a truck in a motor vehicle accident.

Looking at the evidence as a whole, the court concludes that Mr. Primus has failed to meet his burden of proof by clear and convincing evidence that he suffered any disability from his accident on September 28, 2009 at Brand. None of the doctors who have examined Mr. Primus have declared him disabled. Additionally, Mr. Primus was less than truthful about his prior documented neck and back injuries, and his testimony that it was his brother who sought medical treatment posing as Mr. Primus is self-serving and not credible. Finally, Mr. Primus has been less than cooperative with appearing for scheduled medical appointments, which indicates to the court that further medical treatment is in all likelihood unnecessary.

|7For all these reasons, the court orders that Mr. Primus’ claims for indemnity benefits and additional medical benefits shall be dismissed with prejudice. Further, Mr. Primus is assessed costs in the amount of $1,200.00 for his failure to appear at the state-appointed IME on August 9, 2010.

RENDERED AND SIGNED this 10th day of August 2010 in Covington, Louisiana.

/s/ [illegible]

Elizabeth A. Warren

Southeastern Division Judge

Office of Workers’ Compensation

      . Claimant contends the WCJ erred in failing to impose sanctions in the form of penalties and attorney's fees against Brand for its failure to pay benefits. Because we find no error in the WCJ’s dismissal of claims for indemnity benefits, we pretermit discussion of this assignment of error.

      . Claimant also contends the WCJ erred in failing to impose sanctions in the form of penalties and attorney's fees against Brand for its failure to authorize necessary diagnostic treatment. An employer has a statutory duty to furnish all necessary medical treatment caused by work-related injury. La.Rev. Stat. Ann. § 23:1203. The WCJ made an apparent finding that such treatment was unnecessary. A WCJ's determination regarding medical necessity is entitled to great weight and will not be disturbed on appeal in the absence of manifest error or unless clearly wrong. Lang-Parker v. Unisys Corporation, 00-0880 (La.App. 1 Cir. 10/5/01); 809 So.2d 441, 449. We do not find the determination of the WCJ to be manifestly erroneous given the circumstances.


author: PETTIGREW, J. McCLENDON, J.,

text:
    ORACLE OIL, LLC v. EPI CONSULTANTS, a DIVISION OF CUDD PRESSURE CONTROL, INC.
    No. 2011 CA 0151.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 14, 2011.

      Brett P. Furr, Baton Rouge, LA, for Plaintiff-Appellant Oracle Oil LLC.
    Michael J. Remondet, Jr., Lafayette, LA, for Defendant-Appellee EPI Consultants, A Division of Cudd Pressure Control, Inc.
    Before PETTIGREW, McCLENDON, and WELCH, JJ.
   PETTIGREW, J.

12In this action alleging negligence and breach of contract, plaintiff, Oracle Oil, LLC (“Oracle”), challenges a trial court judgment sustaining a peremptory exception filed on behalf of defendant, EPI Consultants, A Division of Cudd Pressure Control Inc. (“EPI”), raising the objection of prescription and dismissing, with prejudice, Oracle’s claims. For the reasons that follow, we reverse and remand.

FACTS AND PROCEDURAL HISTORY

At all times pertinent hereto, Oracle was the operator of the Lucille Broussard, et al. No. 1 well (“the Well”) located in Vermillion Parish. Oracle asserted that it contracted with EPI to provide consulting engineering services, on-site supervision, and other services in connection with the Well from April 8, 2008 through May 18, 2008. In connection with this work for Oracle, EPI allegedly used over 13,000 feet of rusty, scaly drill pipe and failed to properly inspect and clean the pipe before running it in the Well. In July 2008, Oracle attempted a cement squeeze job on the Well, which failed. An investigation ensued, following which Oracle became aware of the deficiencies and negligence in EPI’s work.

Oracle claimed that EPI failed to perform in a “good and workman-like manner” and negligently discharged its supervisory job duties, causing increased costs to be incurred by Oracle, including the loss of reserves, loss of revenue, and loss of business opportunities. On May 18, 2009, Oracle filed suit against EPI in the 19th Judicial District Court, asserting negligence and breach of contract claims and demanding damages for their alleged losses, including the cost of drilling a replacement well in the future. In response thereto, EPI filed exceptions raising the objections of prescription, improper venue, vagueness or ambiguity of the petition, and nonconformity of the petition with the requirements of La. Civ.Code art. 891. Following a hearing on August 24, 2009, the trial court found that venue was improper in the 19th Judicial District Court and granted EPI’s venue exception. The trial court ordered the matter transferred to the 32nd Judicial District Court. The trial court took no action on the remaining exceptions, but specifically reserved the matters to the 32nd Judicial District |sCourt to decide. A judgment in accordance with the trial court’s findings was signed on September 16, 2009.

In response to the transferred petition in the 32nd Judicial District Court, EPI once again filed the same exceptions it had raised in the 19th Judicial District Court. Following a hearing on April 9, 2010, the 32nd Judicial District Court maintained EPI’s exception raising the objection of vagueness or ambiguity of the petition and granted Oracle time to supplement and amend its petition to cure the defects. The trial court overruled the prescription exception as premature. A judgment was signed in accordance with these findings on April 16, 2010.

On May 5, 2010, Oracle filed a first supplemental and amending petition. EPI subsequently filed an exception raising the objection of prescription. EPI argued that Oracle’s claim was delictual in nature and subject to a one year liberative prescriptive period pursuant to La. Civ. Code art. S492. EPI alleged that although Oracle originally filed suit on May 18, 2009, presumably within the one year prescriptive period, it filed suit in an improper venue and did not serve EPI within the prescriptive period in order to interrupt prescription. Thus, EPI asserted Oracle’s claim was prescribed and should be dismissed with prejudice. The matter proceeded to hearing on August 6, 2010. After hearing arguments and reviewing the evidence submitted, the trial court, adopting as its reasons for judgment EPI’s “Memorandum In Support Of Peremptory Exception Of Prescription,” granted EPI’s prescription exception and dismissed Oracle’s claim with prejudice. A judgment in accordance with the trial court’s findings was signed on August 17, 2010. It is from this judgment that Oracle has appealed, arguing that the trial court erred in granting EPI’s exception raising the objection of prescription.

| STANDARD OF REVIEW

A trial court’s findings of fact on the issue of prescription are subject to the manifest error-clearly wrong standard of review. Marin v. Exxon Mobil Corp., 2009-2368, p. 11 (La.10/19/10), 48 So.3d 234, 244-245; Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880, 882 (La.1993). If the findings are reasonable in light of the record reviewed in its entirety, an appellate court may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Stobart, 617 So.2d at 882-883.

PRESCRIPTION

At the trial of a peremptory exception, evidence may be introduced to support or controvert the defense of prescription, if its grounds do not appear from the petition. La.Code Civ. P. art. 931. Generally, in the absence of evidence, the objection of prescription must be decided based upon the facts alleged in the petition, which must be accepted as true. Kirby v. Field, 2004-1898, p. 6 (La.App. 1 Cir. 9/23/05), 923 So.2d 131, 135, writ denied, 2005-2467 (La.3/24/06), 925 So.2d 1230.

The plea of prescription must be specifically pleaded and may not be supplied by the court. La.Code Civ. Proc. art. 927(B). Ordinarily, the party pleading the exception of prescription bears the burden of proving the claim has prescribed. Hogg v. Chevron USA, Inc., 2009-2632, p. 7 (La.7/6/10), 45 So.3d 991, 998. Thus, unless prescription is evident from the face of the pleadings, the party raising the plea of prescription bears the burden of proof. King v. Phelps Dunbar, L.L.P., 98-1805, p. 9 (La.6/4/99), 743 So.2d 181, 188; Guillot v. LECC-Baton Rouge Inc., 2005-2537, p. 5 (La.App. 1 Cir. 12/28/06), 952 So.2d 42, 44.

In the instant case, prescription is not evident on the face of the petition. Oracle originally filed suit on May 18, 2009, in the 19th Judicial District Court. EPI was served with a copy of Oracle’s petition on May 26, 2009. Following a hearing on a venue exception, the trial court transferred the matter to the 32nd Judicial District Court. Oracle alleged that EPI began working on the Well on April 8, 2008, and concluded its activities on May 18, 2008. However, according to Oracle’s first supplemental and |Bamending petition, it was not until an unsuccessful cement squeeze job on the Well in July 2008 that Oracle became aware of deficiencies in EPI’s work. Thus, on its face, Oracle’s petition was not prescribed, and the burden of proof on the prescription exception remained with EPI as the mover.

DISCUSSION

On appeal, Oracle asserts that its claim is not delictual and, thus, not subject to the one-year prescriptive period in Article 3492. Rather, Oracle maintains that its claim is contractual or quasi-contractual and that La. Civ.Code. art. 3499 provides the applicable prescription period. Article 3499 states: “Unless otherwise provided by legislation, a personal action is subject to a liberative prescription of ten years.” We find that regardless of whether Oracle’s claim lies in tort or in contract, it is not prescribed.

In oral reasons for judgment, the trial court stated, “It seems to me that ... the plaintiff knew about this, should have known about this.” The trial court further found that contra non valentem did not apply because the plaintiff “should have known all along.” As previously indicated, in granting EPI’s prescription exception, the trial court adopted as its reasons for judgment EPI’s “Memorandum In Support Of Peremptory Exception Of Prescription,” thus finding, as argued by EPI, that “at the latest, Oracle’s negligence and workmanship claims against EPI prescribed one year (and a day) from the date of the last work performed on May 18, 2008[, and] ... Oracle had to file their lawsuit against EPI by May 19, 2009 in order to prevent prescription of their negligence claims.” While we agree with the trial court that contra non valentem does not apply [ fiin this case, we disagree with the trial court’s finding that Oracle should have known about the damage to the Well “all along.”

In Jordan v. Employee Transfer Corp., 509 So.2d 420 (La.1987), the Louisiana Supreme Court set forth a test for what constitutes notice sufficient to mark the commencement of prescription:

Prescription will not begin to run at the earliest possible indication that a plaintiff may have suffered some wrong. Prescription should not be used to force a person who believes he may have been damaged in some way to rush to file suit against all parties who might have caused that damage. On the other hand, a plaintiff will be responsible to seek out those whom he believes may be responsible for a specific injury.
When prescription begins to run depends on the reasonableness of a plaintiffs action or inaction.

Jordan, 509 So.2d at 423.

At the outset, we note that the commencement of prescription is not an issue if Oracle’s claim is contractual. The suit was clearly filed within the ten-year prescriptive period applicable to personal actions such as contractual claims. Thus, there would be no need to look to when prescription began to run. However, if Oracle’s claim is found to involve allegations of tortious conduct causing damage to immovable property, the one-year liber-ative prescriptive period of La. Civ.Code art. 3493 would be applicable, and the reasonableness of Oracle’s actions and/or inac-tions will be germane to the determination of when prescription begins to run.

Pursuant to Article 3493, the one-year period “commences to run from the day the owner of the immovable acquired, or should have acquired, knowledge of the damage.” La. Civ.Code art. 3493. Thus, the commencement of prescription under this article is triggered by actual or constructive knowledge of damage.

Constructive knowledge has been defined by our courts as whatever notice is enough to excite attention and put the injured party on guard or call for inquiry. Such notice is tantamount to knowledge or notice of everything to which a reasonable inquiry might lead, and such information or knowledge as ought to reasonably put the injured party on inquiry is sufficient to start the running of prescription. Campo v. Correa, 2001-2707, p. 12 (La.6/21/02), 828 So.2d 502, 510-511; Lawrence v. Our Lady of the Lake Hosp., 2010-0849, pp. 9-10 (La.App. 1 Cir. 10/29/10), 48 So.3d 1281, 1287. In assessing whether an injured party possessed constructive knowledge sufficient to commence the running of prescription, this court’s ultimate consideration is the reasonableness of the injured party’s action or inaction in light of the surrounding circumstances. Hogg, 2009-2632 at 7, 45 So.3d at 997-998; Griffin v. Kinberger, 507 So.2d 821, 824 n. 2 (La.1987).

In support of its exception raising the objection of prescription, EPI submitted proof of service of the original petition, indicating that it was not served with Oracle’s petition until May 26, 2009. EPI also submitted the affidavit of Lupe Lopez, Division Manager of EPI. Mr. Lopez indicated that according to EPI’s records relative to the Well, EPI had not performed any services at the Well site before April 8, 2008 or after May 18, 2008. Thus, EPI maintained that Oracle’s claim was clearly prescribed and correctly dismissed by the trial court.

In opposition to EPI’s prescription exception, Oracle submitted the affidavit of Robert E. Brooks, President of Oracle. Mr. Brooks confirmed that EPI worked on the Well from April 8, 2008 through May 18, 2008. Mr. Brooks indicated that Oracle was invoiced and paid for all the work performed by EPI on the Well. Attached to Mr. Brooks’ affidavit were two invoices for services rendered to EPI that were both paid by Delphi Oil, Inc., the contract operator of the Well, on April 30, 2008, and June 13, 2008, respectively. Mr. Brooks noted that it was not until Oracle attempted an unsuccessful cement squeeze job in July 2008 that Oracle realized that EPI had engaged in negligent and deficient acts that caused harm to the Well. Mr. Brooks further attested that had Oracle known about the deficiencies and negligent acts of EPI, the invoices sent by EPI would not have been paid in the manner in which they were paid.

The date on which prescription begins to run is a factual issue to be determined by the trier of fact. We review that determination under the clearly wrong standard. Webb v. Blue Cross Blue Shield of Louisiana, 97-0681, p. 6 (La.App. 1 Cir. 4/8/98), 711 So.2d 788, 792. We find that in this case, the trial court was clearly wrong in finding prescription began to run on May 18, 2008, as argued by EPI. Rather, | Rprescription began to run in July 2008 when the cement squeeze job failed on the Well. It was not until that time that Oracle became aware of damage to the Well and had a reasonable basis to conclude that EPI’s negligence and deficient acts had caused the damage. Because Oracle’s suit, although originally filed in a court of improper venue, was served on EPI on May 26, 2009, prescription had not yet run.

CONCLUSION

For the above and foregoing reasons, we reverse the August 17, 2010 judgment of the trial court sustaining EPI’s exception raising the objection of prescription and dismissing Oracle’s claims with prejudice. We remand the matter for further proceedings consistent with this opinion. All costs of this appeal are assessed against EPI Consultants, A Division of Cudd Pressure Control Inc.

REVERSED AND REMANDED.

McCLENDON, J., concurs and assigns reasons.

WELCH, J., concurs without reasons.

McCLENDON, J.,

concurs and assigns reasons.

hi agree with the majority’s analysis regarding its discussion of Civil Code Article 2493. Thus, I find it unnecessary to address the issue of contra non valentem. Accordingly, I respectfully concur.

      . Louisiana Civil Code article 3492 provides as follows with regard to delictual actions: "Delictual actions are subject to a liberative prescription of one year. This prescription commences to run from the day injury or damage is sustained.”

      . Pursuant to La. Civ.Code art. 3462, "If action is commenced in an incompetent court, or in an improper venue, prescription is interrupted only as to a defendant served by process within the prescriptive period.”

      . To soften the occasional harshness of prescriptive statutes, our courts have recognized a jurisprudential exception to prescription: contra non valentem non crnrit praescriptio, which means that prescription does not run against a person who could not bring his suit. Contra non valentem is a Louisiana jurisprudential doctrine under which prescription may be suspended. Carter v. Haygood, 2004-0646, p. 11 (La.1/19/05), 892 So.2d 1261, 1268. Because the doctrine is of equitable origin, it only applies in exceptional circumstances. Gallant Investments, Ltd. v. Illinois Cent. R. Co., 2008-1404, p. 10 (La.App. 1 Cir. 2/13/09), 7 So.3d 12, 19. There are four recognized categories of this doctrine: (1) where there was some legal cause that prevented the courts or their officers from taking cognizance of or acting on the plaintiff's action; (2) where there was some condition coupled with the contract or connected with the proceedings that prevented the creditor from suing or acting; (3) where the debtor himself has done some act effectually to prevent the creditor from availing himself of his cause of action; and (4) where the cause of action is not known or reasonably knowable by the plaintiff, even though this ignorance is not induced by the defendant. Carter, 2004-0646 at pp. 11-12, 892 So.2d at 1268.