author: DREW, J. CARAWAY, J., CARAWAY, J.

text:
    Robin Wright HISER, Plaintiff-Appellee v. Elliott FELL, Defendant-Appellant.
    No. 49,377-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 13, 2014.
    Opinion on Rehearing Oct. 6, 2014.
    Charles H. Kammer, III, Shreveport, for Appellant.
    H. Lynwood Lawrence, Jr., for Appellee.
    Before BROWN, CARAWAY and DREW, JJ.
   DREW, J.

I, This is a custody dispute arising in Louisiana and Texas, relative to a female child who has now turned eight years of age.

Elliot Fell, the father, lives in Harris County, Texas. Prior to moving to Texas in 2010, the father resided in Caddo Parish, Louisiana.

Robin Hiser, the mother, lives in Bossier Parish.

The parties never married.

The father appeals a Bossier Parish judgment of December 6, 2013, that denied his request to dissolve certain previous orders of the Louisiana court. We affirm.

OLDER LITIGATION

These custody proceedings actually began in February of 2007 when the mother filed a petition for custody and child support in the 26th Judicial District Court, Bossier Parish, Louisiana (“Louisiana court”). A Joint Custody Implementation Plan (“JCIP”) was “finalized” in 2008, and the case lay dormant for four years. At all times, the parties had and still have parents and other family in Caddo and Bossier Parishes.

In 2010, the father moved to Texas for employment reasons, while maintaining domicile in Caddo Parish, Louisiana. The mother later moved to Texas, also for employment reasons. She later testified that at all times she considered herself to be domiciled in Bossier Parish, Louisiana.

THE CURRENT LITIGATION

In May of 2012, the father received a handwritten notice of proposed relocation from the mother. The race to the courthouse began.

|gOn June 3, 2012, the father filed a petition for custody in the 245th Judicial District Court in Harris Country, Texas, (“Texas court”) for which a hearing was scheduled on June 19, 2012. The Texas court issued a temporary restraining order (“TRO”) prohibiting either party from removing the child from the state for the purpose of changing the child’s primary residence.

On June 9, 2012, the Texas TRO was served on the mother in Bossier Parish, at which point she had already set up Louisiana residency for herself and the child.

Three days after being served, on June 12, 2012, the mother filed a petition in Bossier Parish for an increase in child support and for modification of the Louisiana JCIP. She alleged that she was domiciled in Bossier Parish and that the father lived in Katy, Texas. She contended the custody agreement should be modified because of the child’s age and because of the father’s recent aberrant behavior. She further contended that the majority of the weekend visitations should be in Shreveport because the father visited Shreveport often and his family had a home there.

To her discredit, the mother requested ■ that service of process on the father be withheld, and she made no mention of the Texas litigation in her Bossier Parish pleadings.

Also on June 12, 2012, the mother sent the father a second (typed) notice of proposed relocation, advising that she would relocate the child to Bossier City. The stated date of the proposed relocation was June 12, 2012.

|sEven though the mother knew of the Texas lawsuit, she did not appear in Texas on June 19, 2012, when the default was entered, nor did she appear at the July 3, 2012, hearing, when the default judgment was confirmed. The father testified at the Texas hearing that the child should live with him because he was more stable and the child was accustomed to school in Texas.

The Texas court entered an order:

• stating that the Texas court had jurisdiction and that no other court had continuing, exclusive jurisdiction;
• naming the parents as joint managing conservators, with the father having the exclusive right to designate the child’s primary residence in Harris County or contiguous counties;
• granting the mother visitation; and
• ordering her to pay $480 per month in child support.

On July 20, 2012, the mother filed in the Louisiana court a motion for rule for judgment of past-due child support, contempt, and attorney fees. Service was requested through the father’s Texas attorney.

Also on July 20, 2012, the mother filed in the Louisiana court a petition for TRO and for preliminary and permanent injunctive relief asserting that the child was in a deleterious situation when she was with her father because of his drinking and other negative traits.

The mother alleged:

• she and the child had been domiciled in Bossier Parish since the child’s birth;
f while she lived in the Houston area, she always intended to return to Bossier Parish, and always particularly intended that the child begin kindergarten and be subsequently schooled in Bossier Parish; and
• she terminated her apartment lease in Houston and returned to Bossier Parish in May of 2012.

In late summer of 2012, the Texas court ordered the mother to return the child to the father in Texas and issued a writ of attachment directing law officers in Texas to locate, seize, and deliver the child to the father.

On August 24, 2012, through Louisiana counsel, the father filed a petition in the Louisiana court, requesting that the Texas judgment be made executory in Louisiana. In this pleading, the father asserted that Caddo Parish remained his domicile. He also asserted that he only appeared to make the Texas judgment executory. To his discredit, the father requested that the mother not get advance notice of the filing, for the stated reason of preventing her from leaving with the child.

On August 27, 201&, the Bossier judge signed an ex parte judgment making ex-ecutory the judgment and order of the Texas court, and issuing a civil warrant. Law officers in Louisiana were ordered to take custody of the child and deliver her to her father.

On September 13, 2012, the father’s attorney filed exceptions to the Louisiana proceedings, as to the June 12, 2012, petition, the July 20, 2012, rule for past-due child support and the July 20, 2012, petition for TRO and injunctive relief. In his pleadings, the father’s Louisiana lawyer stated:

[fi“Mrs. Hiser’s relief is in Harris County Texas. Should that court, in conjunction and consultation with this court determine the 26th JDC is the proper jurisdiction/venue for the instant disputes between the parties, so be it. But in the interim, Mrs. Hiser must play by the rules.” (Emphasis added.)

Notice of the mother’s June and July filings was not actually served on the father’s Louisiana lawyer until the day of the hearing, September 13, 2012.

The exceptions filed by the father’s Louisiana attorney included:

• insufficiency of citation,
• insufficiency of service of process,
• lis pendens,
• improper venue, and
• lack of subject matter jurisdiction.

Before the hearing, the Bossier trial court unsuccessfully tried to call the Texas court, pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”), to discuss which court should have the case,

|,¡Because of the seriousness of the allegations of danger to the mother and the child, the Bossier judge on September 13, 2012:

• granted the La. C.C.P. 3945 emergency temporary custody petition;
• ordered that the Bossier Parish court would assert jurisdiction over these proceedings, pursuant to the UC-CJEA;
• granted temporary custody to the mother; and
• ordered that the child be returned to the mother within three days.

The father took a writ to our court, requesting that the Bossier court’s order of September 13, 2013, be rescinded (“first writ”).

A writ panel of this court ruled as follows on November 1, 2012:

WRIT DENIED; STAY DENIED

Applicant Elliott Fell seeks emergency supervisory review of a September 13, 2012, order of the district court giving temporary custody of a minor child to the child’s mother pending a November 8, 2012, hearing; Fell also seeks a stay of various matters set to be heard on that date.
We find no authority in La. C.C.P. Art. 3945 for the issuance of a custody order in this apparently interstate custody matter which should exclusively be governed by the provisions of the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), La. R.S. 18:1801-1842. However, some of the allegations of fact in the respondent’s emergency petition for custody are in the nature of a threat of mistreatment or abuse that could, upon a proper showing, merit the emergency exercise of jurisdiction by Louisiana under La. R.S. 13:1816. Accordingly, this Court considers that the emergency custody order was rendered under the authority of this article.
17At this juncture, this Court declines to exercise its supervisory jurisdiction to review the merits of the extant emergency custody order given the paucity of facts available and given the pendency of the November 8, 2012, hearing where the merits vel non of the exercise of emergency jurisdiction over the child’s custody can be determined. Because of the importance of that determination of the merits of the emergency order, we further decline to stay the proceedings below; indeed, the trial court should endeavor to make a final determination under La. R.S. 13:1816 as quickly as possible. Insofar as the other matters to be considered at the November 8, 2012, hearing are concerned, the trial court should consider and dispose of the applicant’s exceptions prior to making any ruling on the merits. (Our emphasis.)

On November 5, 2012, in a teleconference with the Louisiana trial court, the Texas trial court declined jurisdiction pursuant to the UCCJEA, in favor of the Louisiana court. On November 6, 2012, the Texas court sent to the Bossier court and to the father’s Texas counsel a written confirmation of its decision declining jurisdiction. We view these communications as effectively disposing of the father’s exceptions.

At the November 8 hearing in Bossier Parish, the father’s Louisiana attorney actually conceded in open court that the Texas court’s actions effectively “mooted” his exceptions on behalf of the | ^father. Later that month, the father’s Louisiana attorney was allowed to withdraw.

For the following 11 months, the Louisiana trial court set about handling the merits of this dispute, including appointing a mental health expert, setting and adjusting the father’s visitation, admonishing both counsel for slightly over zealous conduct, and generally monitoring visitation, as in any other domestic case.

On October 11, 2013, the father filed a motion to dissolve the prior interim orders, on these grounds:

• that the Texas judgment is controlling;
• that Louisiana had no jurisdiction to issue an award under La. C.C.P. art. 3945;
• that under La. R.S. 13:1816, the court’s jurisdiction is temporary and very limited in duration;
• that it appeared that the grant of jurisdiction by the trial court was to allow the mother to obtain a protective order; and
that because the protective order was dismissed in January 2013, the Bossier court no longer had jurisdiction under La. R.S. 13:1816 as there was no current allegation of further threat.

The hearing on the motion to dissolve orders was held on November 14, 2013. Because some of the briefs were filed on the eve of the hearing, the Louisiana court took the matters under advisement.

On December 3, 2013, the court denied the motion to dissolve orders with lengthy and detailed reasons given for its actions, including:

• that the Bossier court had the initial jurisdiction at the time of the commencement of the proceedings in 2007, pursuant to the UCCJEA and La. R.S. 13:1813;
• that the Bossier court had maintained exclusive, continuing jurisdiction under the UCCJEA and La. R.S. 13:1814;
• that the Texas court had declined jurisdiction in favor of Louisiana; ■
• that the Louisiana court inadvertently signed the August 27, 2012 order making the Texas judgment executory in Louisiana;
• that the Louisiana court now formally vacated the inadvertently signed judgment of August 27, 2012;
• that the existing orders of the Louisiana court were still in effect; and
• that the parties were ordered to abide by the custody arrangement set by the Louisiana court.

To this adverse ruling, the father filed for a supervisory writ (“second writ”) with this court. We converted his writ to the instant appeal, because the December 3, 2013, judgment was an appealable final judgment since it vacated the August 27, 2012, judgment.

The father argues that the only valid custody decree is the Texas judgment, as made executory by the Louisiana court. He proposes that the case return to Texas, or that the Louisiana court return to the base line | ^established by the Texas court. In other words, the father suggests that the Bossier court be bound by a Texas default judgment that was made executory in Louisiana about 10 weeks prior to the decision of the Texas court to decline jurisdiction in favor of Louisiana.

'ANALYSIS

This Louisiana trial court scrupulously followed the letter and the spirit of the UCCJEA by reaching out to the Texas court in September 2012.

In our writ ruling of November 1, 2012, we instructed the Louisiana trial court to proceed in strict adherence with the UC-CJEA and to reach the merits only after the disposition of the father’s exceptions. This is exactly what the Louisiana trial court did.

On November 5, 2012, three days before the scheduled hearing, the two trial judges were finally able to confer pursuant to the UCCJEA, each agreeing that Louisiana had the better claim for jurisdiction of this matter. Fax confirmation was received from the Texas court on November 6, 2012. Counsel for the father appeared to concede the point. Thus, the Louisiana court, with its long history of involvement in this matter, clearly had jurisdiction.

We note this Louisiana statute:

La. R.S. 13:1835. Recognition and enforcement
A court of this state shall accord full faith and credit to an order issued by another state and consistent with this Act which enforces a child custody determination by a court of another state unless the order has been vacated, stayed, or modified by a court having jurisdiction to do so under Subpart B. (Our emphasis.)

Inin a child custody jurisdictional dispute, the Third Circuit recently ruled that a Louisiana court had jurisdiction over a father’s action to resolve a custody dispute, even though the grandmother had previously obtained an order of permanent guardianship from an Indiana Superior Court, where before the trial court made a custody determination, the Indiana court declined jurisdiction and terminated its Indiana order of permanent guardianship, and where the mother and grandmother had relocated to Louisiana with the child, who had started school in Louisiana. See Gill v. Bennett, 2011-886 (La.App. 3d Cir.12/7/11), 82 So.3d 383, writ denied, 2012-0416 (La.3/7/12), 83 So.3d 1048.

The UCCJEA provides five grounds, in preferential order, that warrant an exercise of jurisdiction over a child in an interstate matter relating to the child’s custody. These provisions may be summarized as follows:

1. Louisiana is or was the home state of the child;
2. Another state lacks jurisdiction, and the child and at least one of the parents has a significant connection with the state and significant evidence relating to custody is found in this state;
3. All courts have declined jurisdiction because Louisiana is the appropriate forum;
4. No other court would have subject matter jurisdiction under the Act; or
||⅞5. The Louisiana court has temporary jurisdiction based on emergency circumstances.

Of these factors, and under these facts, the first three considerations are dead on.

The consultation of the Texas and Louisiana judges, precisely in accordance with the UCCJEA, resulted in the Texas court’s declining jurisdiction and full jurisdiction being conferred on the Louisiana court. The actions of the Louisiana court were lawful, reasonable, and imbued with common sense. The Bossier court had jurisdiction to vacate its inadvertent ex parte judgment.

Texas does not want this case, and it is not the appropriate forum. Upon acknowledging under the UCCJEA that the superior jurisdictional forum was in Louisiana, the Texas court was required by the UCCJEA to dismiss all proceedings. After the Texas court conscientiously declined jurisdiction, it would be bizarre in the extreme for Louisiana to send this case back to Texas.

Louisiana has jurisdiction. Bossier Parish is the appropriate forum. The same Bossier judge has supervised this case for the last two years. Both parties are domiciled in Louisiana and have extended family in this state.

A child custody decree of one state is subject to modification not only by courts of that state, but also by courts of another state, since the full faith and credit clause has limited application in custody cases. See Revere v. Revere, 389 So.2d 1277 (La.1980).

11SAssuming appropriate contacts, a Louisiana court can obtain subject matter jurisdiction under the UCCJEA if the other state determines that it no longer has jurisdiction. If the other state does not decline jurisdiction, that is another matter. See Otwell v. Otwell, 10-1176 (La.App. 3d Cir.2/9/11), 56 So.3d 1232.

The father’s appeal elevates form over substance. This is not a money judgment; it is a child custody proceeding, and it should be handled in accordance with the UCCJEA, with the Louisiana trial court maintaining flexibility to seek justice, safety, and stability for this young child.

The father’s proposed disposition lacks factual or legal support. His legal position flies directly in the face of the current facts whereby all family members, with any connection to the child, live in northwest Louisiana.

We deny the father’s appeal, at his cost.

DECREE

At appellant’s cost, the judgment denying Elliott Fell’s motion to dissolve is AFFIRMED.

CARAWAY, J.,

dissenting.

I,Long after the finality of a Texas judgment, duly made executory by a Louisiana final judgment, this court exercised supervisory review over this custody dispute on November 1, 2012, and recognized full faith and credit for the Texas judgment. Contrary to that ruling of this court, the majority now gives a full lack of credit to the other state’s judgment.

The Full Faith and Credit Clause of the United States Constitution, Parental Kid-naping Prevention Act, 28 U.S.C.A. § 1738A, the Uniform Child Custody Jurisdiction and Enforcement Act (“UC-CJEA”), La. R.S. 13:1801, et seq., and the Enforcement of Foreign Judgments Act, La. R.S. 13:4241, et seq., all mandate that the Texas custody determination remain in effect until that judgment is challenged in Texas regarding its invalidity for no subject matter jurisdiction, which it clearly employed under the UCCJEA.

The U.S. Constitution requires that Louisiana courts must give judgments obtained in Texas full faith and credit in proceedings in Louisiana. See U.S. Const, art. IV § 1. Such judgments are presumed to be valid until a person contesting its validity proves that it is defective in a contradictory hearing. See Esenwein v. Commonwealth of Pa., 325 U.S. 279, 280-81, 65 S.Ct. 1118, 1119, 89 L.Ed. 1608 (1945); see also Holiday Hospitality Franchising, Inc. v. Grant, 36,035 (La.App.2d Cir.5/8/02), 817 So.2d 449, 452 (“There is a presumption the judgment of the sister state is valid and the burden of showing the judgment is invalid for lack of 1 ¿jurisdiction rests with the party attacking the judgment”). Otherwise, the judgment stands.

Recognizing the problems of parents absconding with children and contravening custody orders to obtain a favorable ruling in another state, the United States Congress passed 28 U.S.C.A. § 1738A, to require that every state give full faith and credit and that every state enforce the custody determinations of other states so long as those courts had jurisdiction. 28 U.S.C.A. § 1738A; see Suzanne Y. LePori, The Conflict Between the Parental Kid-naping Prevention Act and the Extradition Act; Naming the Custodial Parent Both Legal Guardian and Fugitive, 19 St. Mary’s L.J. 1047’ 1053-64 (1988). The UCCJEA mirrors these concerns and is entirely consistent with the provisions of the Congressional Act. See UCCJEA § 101, cmt. Louisiana and Texas have adopted the Uniform Child Custody Jurisdiction and Enforcement Act. See La. R.S. 13:1801 et seq., and Tex.Code Ann. § 152.101 et seq.

The general principle of the UCCJEA is that the state that makes the initial custody decree maintains jurisdiction until a court expressly finds that it has lost jurisdiction. See La. R.S. 13:1813-14. The UCCJEA lays out a scheme for determining when jurisdiction may be exercised, see La. R.S. 13:1813, when it is lost, see La. R.S. 13:1814, and when another state acquires jurisdiction to hear the custody matter, see La. R.S. 13:1815.

It is undisputed that Louisiana had jurisdiction of this case in 2007 to render an initial custody decree. Under the UC-CJEA, before the Texas court could modify Louisiana’s custody decree, the Texas court was | srequired to make a determination that the child and both parents did not currently reside in the state (Louisiana) making the initial custody decree. La. R.S. 13:1814(2). As recognized by the majority opinion, the Texas judgment of July 2012 expressly determined that Louisiana did not retain exclusive, continuing jurisdiction and that Texas had become the home state of the child. See Tex.Code Ann. § 152.102(7). The mother was properly served with notice of the Texas proceeding. The parents’ and the child’s two-year residency in Texas preceding the Texas action indicates that subject matter jurisdiction for custody under the UC-CJEA had been established in Texas.

The UCCJEA also mandates enforcement of custody determinations made by courts exercising jurisdiction in substantial compliance with the UCCJEA. See La. R.S. 13:1823, et seq. The validity of that judgment may be collaterally attacked when the judgment is submitted for enforcement. See La. R.S. 13:1827(D); see also La. C.C.P. art. 2541; see also La. R.S. 13:4241 et seq. Otherwise, the judgment must be enforced.

Under La. R.S. 13:4241, et seq., the trial court entered an order on August 27, 2012, making the Texas judgment enforceable and executory in Louisiana. The mother admits in the record that she was served with this order on August 28. Therefore, under this Louisiana proceeding for the enforcement of the Texas judgment, the mother had 30 days in which to challenge the subject matter jurisdiction by which the Texas judgment was ^rendered. The mother has never presented a single pleading at any time alleging any jurisdictional flaw in the Texas custody judgment.

Therefore, the August 2012 Louisiana order became a final judgment 30 days after its entry under the provisions of La. R.S. 13:4241, et seq. As this court recognized in Knutsen v. Prince, 40,109 (La.App.2d Cir.9/21/05), 911 So.2d 404, after a final Louisiana judgment making another state’s judgment executory, any defense against granting full faith and credit to the out-of-state judgment is foreclosed in Louisiana.

With the Texas and the Louisiana judgments thus final and enforceable, this court was called upon on November 1, 2012, to address the authority and jurisdiction of the Louisiana district court over the pending proceeding. The mother’s Louisiana action was for the threat of an immediate and irreparable harm concerning the child’s safety pursuant to La. C.C.P. art. 3945. This court’s ruling on the writ did not upset the scheduled evidentiary hearing of November 8, 2012. However, from our review of the proceedings and the father’s urging of the finality of the Texas judgment, we effectively ruled that Louisiana’s only subject matter jurisdiction was limited to the special “temporary emergency jurisdiction” under the UCCJEA, La. R.S. 13:1816 (hereinafter “Section. 1816”). This court expressly found that the trial court had “no authority” to act under the special Article 3945 emergency power of this state because under Section 1816(C), there had been “a previous child custody determination” in Texas shown by the unchallenged Texas judgment. There was “no authority” for the district court to employ Louisiana’s full subject matter jurisdiction | r,because Louisiana had lost its initial and continuing jurisdiction after the Texas court’s application of the UCCJEA and its exercise of custody jurisdiction in Texas.

With this recognition of the force of UCCJEA and the Texas judgment, the November 8 hearing was a limited proceeding as directed by this court. The trial court attempted to act under Section 1816. That section of the UCCJEA establishes the jurisdictional rule of law for this Louisiana emergency proceeding. A different action by the mother would have been required for a determination that Texas had somehow lost its exclusive, continuing jurisdiction over custody of the child. La. R.S. 13:1814. Yet, Louisiana has never been asked in formal pleadings by the mother to reassert full subject matter jurisdiction under the UCCJEA, and the Texas judgment setting the custody status of this child remains.

The majority opinion now rules that the Texas subject matter jurisdiction over custody exercised in the Texas judgment was relinquished by an unexplained letter of a Texas judge. This extrajudicial action of a single Texas judge now relied upon by the majority is a violation of the UCCJEA rule for communication between courts. La. R.S. 13:1810 (hereinafter “Section 1810”). The Texas judge, acting alone, purportedly conferred full subject matter jurisdiction upon the Louisiana court on November 6, 2012. Judicial communication between courts with custody interests over pending matters is authorized in the UCCJEA and specifically | ^directed in the “temporary emergency jurisdiction” cases involving two states. Nevertheless, an examination of the UCCJEA allowances for such communication in our statutes clearly shows that no judge’s informal communication off the record can extend subject matter jurisdiction in this case or any other.

La. R.S. 13:1818 recognizes generally the need for the possible stay of an action and judicial communication between two courts when “simultaneous proceedings” are pending in both courts. There was no pending action in the Texas court on November 6, 2012. There is no authority under that section for deciding subject matter jurisdiction by a judge. Of even more importance, Section 1810(D) requires that “a record” of any communications between courts over substantive matters be made. La. R.S. 13:1810(D). That was violated in this case, as the judge’s letter references a teleconference between the judges that preceded his November 6 letter. Thus, we are left with a letter where the Texas judge ambiguously acknowledged Louisiana’s jurisdiction over the pending “temporary emergency” matter under Section 1816. With the lack of a record and clarity for the judge’s letter, I cannot say that the Texas judge was so bold as to have intended to cede primary UCCJEA jurisdiction to Louisiana. Yet, ■without review of the UCCJEA rules for court communications, the majority now holds that one judge’s unilateral act was that of a “Texas court,” effectively nullifying the final judgment of the court, rendered by another Texas judge.

^Additionally, the trial court erroneously misconstrued the purpose of the allowance for judicial communication under the UCCJEA emergency statute, Section 1816(D). The first sentence of Section 1816(D) did require communication with the Texas court which had made the last determination of UCCJEA primary jurisdiction as residing in Texas. See La. R.S. 18:1816(D). This instruction is in keeping with the mandate of Section 1816(C) to instruct the mother upon receipt of any emergency Louisiana custody ruling to “obtain an order from” the Texas court within a time period set by the Louisiana court. La. R.S. 13:1816(C). The second sentence of Paragraph D has no application because it begins on the premise that Louisiana is the present state “exercising jurisdiction pursuant to R.S. 13:1813 through 1815.” La. R.S. 13:1816(D). In summary, Paragraph C of the emergency Section 1816 begins with the recognition of “a previous child custody determination that is entitled to be enforced under this Act,” and because that determination occurred in the Texas judgment, communication with the Texas court was limited under Section 1816(D) to further proceedings “to resolve the emergency” and provide protection for the child under the continuing jurisdiction of the Texas court.

In conclusion, the Texas court took jurisdiction over the status of this child and the parents in June 2012 because of the parties’ residency in that state. A Texas judgment for custody of the child became final, was made executory in Louisiana, and has never been collaterally attacked in Louisiana or in Texas. The Texas judgment governing the custody of the |8child remains in force and effect in Texas, and yet Louisiana proceedings continue. I respectfully dissent.

ON REHEARING

Before BROWN, CARAWAY, DREW, PITMAN and GARRETT, JJ.

CARAWAY, J.

_JjThe lengthy procedural history of this case in the courts has been thoroughly reviewed in the original majority and dissenting opinions. This rehearing was granted upon the determination that the July 6, 2012 judgment of the Texas District Court (hereinafter the “Texas Judgment”) must be given full faith and credit in Louisiana concerning the custody of the child. Furthermore, on its face, the Texas Judgment is an assertion of subject matter jurisdiction over the status of the child and parents pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”) applicable in both states. Accordingly, appellant’s request for relief for the dismissal of the pending Louisiana proceedings over this custody dispute is granted peremptorily for the lack of subject matter jurisdiction.

Jurisdiction is the legal power and authority of a court to hear and determine an action or proceeding involving the legal relations of the parties, and to grant the relief to which they are entitled. La. C.C.P. art. 1. Jurisdiction over the subject matter is the legal power and authority of a court to hear and determine a particular class of actions or proceedings, based upon the object of the demand, the amount in dispute, or the value of the right asserted. La. C.C.P. art. 2.

The issue of subject matter jurisdiction may be raised at any stage of an action, even by the court on its own motion. Scott v. Scott, 48,716 (La.App.2d Cir.1/15/14), 132 So.3d 460; Northeast Realty v. Jackson, 36,276 (La.App.2d Cir.8/14/02), 824 So.2d 1264; PTS Physical Therapy Serv., Inc. v. Magnolia Rehab. Serv., Inc., 40,558 (La.App.2d Cir.1/27/06), 920 So.2d 997. The jurisdiction of a court over the subject matter of an action or proceeding cannot be conferred by consent of the parties or waived; a judgment rendered by a court which has no jurisdiction over the subject matter of the action or proceeding is void. Boudreaux v. State, Dep’t of Transp. & Dev., 01-1329 (La.2/26/02), 815 So.2d 7; La. C.C.P. art. 3.

The U.S. Constitution requires that Louisiana courts must give judgments obtained in other states full faith and credit in proceedings in Louisiana. See U.S. Const, art. IV § 1. Such judgments are presumed to be valid until a person contesting its validity proves that it is defective in a contradictory hearing. See Esenwein v. Commonwealth of Pa., 325 U.S. 279, 280-81, 65 S.Ct. 1118, 1119, 89 L.Ed. 1608 (1945); see also Holiday Hospitality Franchising, Inc. v. Grant, 36,035 (La.App.2d Cir.5/8/02), 817 So.2d 449, 452 (“There is a presumption the judgment of the sister state is valid and the burden of showing the judgment is invalid for lack of jurisdiction rests with the party attacking the judgment”). Otherwise, the judgment stands.

Recognizing the problems of parents absconding with children and contravening custody orders to obtain a favorable ruling in another state, the United States Congress passed 28 U.S.C.A. § 1738A, to require that every state give full faith and credit and that every state enforce the custody determinations of other states so long as those courts had jurisdiction. 28 U.S.C.A. § 1738A; see Suzanne Y. LePori, The Conflict Between the \ ^Parental Kid-naping Prevention Act and the Extradition Act; Naming the Custodial Parent Both Legal Guardian and Fugitive, 19 St. Mary’s L.J. 1047, 1053-64 (1988). The UCCJEA mirrors these concerns and is entirely consistent with the provisions of the Congressional Act. See UCCJEA § 101, cmt. Louisiana and Texas have adopted the Uniform Child Custody Jurisdiction and Enforcement Act. See La. R.S. 13:1801 et seq.; Tex.Code Ann. § 152.101 et seq.

The general principle of the UCCJEA is that the state that makes the initial custody decree maintains jurisdiction until a court expressly finds that it has lost jurisdiction. See La. R.S. 13:1813-14. The UCCJEA lays out a scheme for determining when jurisdiction may be exercised, see La. R.S. 13:1813, when it is lost, see La. R.S. 13:1814, and when another state acquires jurisdiction to hear the custody matter, see La. R.S. 13:1815.

From this law, the presumption of the validity of the Texas Judgment and the Texas court’s subject matter jurisdiction under the UCCJEA have never been challenged by appellee in the Texas proceeding or by direct challenge in Louisiana. The Texas Judgment was made executory in Louisiana without the filing of any pleading by appellee challenging the application of the UCCJEA by the Texas court which expressly determined its subject matter jurisdiction over the status of the child. Therefore, any such challenge is foreclosed in this state. Knutsen v. Prince, 40,109 (La.App.2d Cir.9/21/05), 911 So.2d 404.

Accordingly, we reverse any orders of the district court pertaining to custody which were rendered after the Texas Judgment on the grounds of 14lack of subject matter jurisdiction. The ruling, of course, does not prevent appellee from taking further action in the Texas proceeding, including a challenge to the court’s initial assertion of subject matter jurisdiction under the UCCJEA. Additionally, this court’s ruling does not affect any future action in Louisiana pursuant to the UCCJEA, based upon material changes in circumstances, including UCCJEA actions under La. R.S. 13:1816.

Costs of appeal are assessed to appellee.

REVERSED. CASE DISMISSED FOR LACK OF JURISDICTION.

DREW, J., dissents for the reasons outlined in the original opinion.

BROWN, C.J., dissents for reasons set forth by J. DREW.

      . The father's original Texas pleadings are not in this record. Whether this is an oversight, a considered strategy, or something else, is unknown.

      . This is the Texas version of joint custody with the father named the domiciliary parent.

      . The Louisiana court later ruled that the judgment of August 27, 2012, was "inadvertently” rendered and signed.

      . The record does not reflect whether or not the Louisiana court was advised of the pending matters in Bossier Parish.

      . xhis is preciSely what later happened on November 5 2013.

      . We can only surmise the details of the extensive in-chambers discussions in the Fall of 2012. Whatever was spoken between the court and counsel in that setting would probably help clarify the unusual proceedings that developed in court.

      . The father’s lawyer was technically appearing to secure attorney fees from the mother, relative to his efforts in making the Texas judgment a judgment of the Bossier Court. He had with him exceptions for filing relative to the Louisiana proceedings, indicating that he already knew of the pending Louisiana litigation.

      . On December 12, 2012, Sandra Moore executed an affidavit in which she stated that on October 10, 2012, she attempted long-arm service on the father of the petition for increase in child support and modification of the JCIP, the motion and order for rule for judgment of past-due child support and contempt, the petition for a TRO and injunctive relief, the petition for immediate temporary custody pursuant to La. C.C.P. art. 3945(D), or alternatively, the issuance of a rule nisi for sole custody, along with the joint motion to reset the rule dates. The postal package was refused by the father on October 12, 2012. Each of these litigants played games with the system.

      . The father worked at Edward Jones in Houston. The mother had also worked there before her move back to Louisiana. At some point, another Edward Jones assistant overheard the father make certain perceived threats against the mother. He was fired because of whatever he said. A police report was made in Bossier City because of the threats. The Bossier judge ordered that until the father appeared before the court, the mother would have sole custody with no visitation for the father. The court also ordered that the order would remain in place until the father actually appeared in Bossier court in the matter.

      . By joint motion, counsel for the parties later reset the trial for November 8, 2013.

      . This was three days before the scheduled hearing for which our court had given detailed instructions in response to the first writ.

      . The Texas judge wrote to the Louisiana judge, “This letter shall confirm our teleconference yesterday in accordance with the UC-CJEA regarding the above numbered causes. Based upon our discussion, I concur with you that your court has jurisdiction over this matter and I will be declining to exercise jurisdiction.” We do not read this as a conditional or limited concession as to Louisiana’s right to handle this case.

      . The father’s Louisiana counsel sought to situate himself in the Never-Never Land between appearing here for a limited purpose and semi-actively litigating the entire case for the father. He offered input and kept appearing in court after his original remit was accomplished.

      . The attorneys each engaged in fax communications with the Louisiana judge and each other. The trial court instructed counsel to make any filings in the record.

      . On August 15, 2013, the Bossier court entered an order that appointed Sandi Davis as mental health evaluator and made her responsible for setting visitation between the child and parents; the mother would follow Davis’s recommendations regarding visitation with the father; neither party would remove the child from Louisiana without court approval; jurisdiction regarding custody would remain vested with the Bossier court; the father would receive substantial visitation within 45 days if Davis thought it was appropriate; both parties were to set up an office visit with Davis; the father would be given consideration by Davis to make up any visitation he lacked between the May and August 2013 status conferences; and the father would pay all outstanding child support by November 14, 2013. The matter was set for review on November 14, 2013, when holiday visitation would be scheduled. On September 18, 2013, Davis wrote to Judge Cox that visitation every other weekend was about to begin. She added that both parents were cooperating with that schedule. On October 24, 2013, Davis wrote to Judge Cox that the father was going to have weekend visitation with the child in Katy, Texas, at the beginning of November.

      . See La. R.S. 13:1810.

      . "Subpart B references La. R.S. 13:1813-1822."

      . See State ex ret A.UM., 46,082 (La.App.2d Cir.2/16/11), 62 So.3d 185. For the exact text, see La. R.S. 13:1813.

      . Both parents are domiciled in Louisiana and have family in Caddo and Bossier Parishes.

      . See State ex ret A.U.M., supra.

      . The majority opinion seems to justify its ruling on the domiciliary intentions of the parents, which is contrary to the UCCJEA's focus on residency. See UCCJEA § 202, cmt. (2). Adults may have domicile intentions; the child as a resident of the state under the UCCJEA is the policy concern of Texas.

      . At oral argument, counsel for the father asserted that the Texas judge who mailed the letter was not the Texas judge who was actually involved in the rendition of the Texas judgment in July 2012.

      . The Texas Judgment, which was entitled "Order in Suit to Modify Parent-Child Relationship," effected changes in the prior custody arrangement established in the initial 2007 Bossier Parish proceeding.

      . Our review of the record shows that temporary custody through visitation in Texas was granted to appellant following family counseling services rendered under the trial court's directives in 2013.


source: Caselaw Access Project

author: THERIOT, J. McDONALD, J.,

license: Public Domain

text:
    POT-O-GOLD RENTALS, LLC v. CITY OF BATON ROUGE.
    No. 2013-CA-1323.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 17, 2014.

      Mary E. Roper, Parish Attorney, Randy Ligh, Special Assistant Parish Attorney, Blake A. Pino, Assistant Parish Attorney, Baton Rouge, Louisiana, for Defendant/Appellant City of Baton Rouge.
    David R. Cassidy, David R. Kelly, Nicole F. Gould, Baton Rouge, Louisiana, for PlaintifRAppellee Pot-O-Gold Rentals, LLC.
    Before KUHN, GUIDRY, McDONALD, HIGGINBOTHAM, and THERIOT, JJ.
   THERIOT, J.

|2The defendant, the City of Baton Rouge and Parish of East Baton Rouge (City) appeals the judgment of the Nineteenth Judicial District Court rendered in favor of the plaintiff, Pot-O-Gold Rentals, LLC (Pot-O-Gold). On motion for summary judgment, the trial court determined that the plaintiffs waste removal services were not taxable as gross proceeds derived from the lease or rental of tangible personal property and ordered the City to refund taxes that had been paid by the plaintiff under protest. For the following reasons, we reverse and remand.

STATEMENT OF THE FACTS

Pot-O-Gold'is a Louisiana limited liability company that offers a variety of waste management services. Relevant here, Pot-O-Gold owns portable toilets and holding tanks that it leases to customers, and offers cleaning and sanitation services for these rented toilets and tanks. Pot-O-Gold’s related waste management services include the pumping, removing, hauling, and disposal of generated or collected human waste in its rented toilets and tanks. Pot-O-Gold also offers cleaning and sanitation services for portable toilets and holding tanks owned by others and does riot require rental customers to purchase its sanitation or cleaning service. However, if a rental customer chooses to reject related sanitation or cleaning service, the customer is charged a higher rental fee.

The present dispute derives from a 2011 sales and use tax compliance audit of Pot-O-Gold’s operations conducted by the City for the period from January 1, 2007 through December 31, 2008. The audit revealed that, although Pot-O-Gold collected taxes on its rentals of portable toilets and holding tanks, it had not generally collected taxes for the cleaning or sanitation services it provided in connection with these rentals or for fuel | ¡¡surcharges on such rentals. Thus, the City issued a $69,821.65 assessment to Pot-O-Gold, representing the sum of sales taxes owed ($37,160.92) along with interest ($23,-370.14) and penalties ($9,290.59). Pot-O-Gold paid the assessment under protest and filed the instant suit seeking recovery thereof.

ASSIGNMENTS OF ERROR

On appeal, the City argues that the trial court erred in granting Pot-O-Gold’s motion for summary judgment. Specifically, the City contends:

1) The trial court erred by allowing the splitting and dividing of proceeds from rental contracts into taxable and nontaxable components.
2) The trial court erred by failing to recognize that services, ordinarily nontaxable if standing alone, may nonetheless be taxable as gross proceeds derived from a lease or rental.
3) The trial court erred by inappropriately relying on and misinterpreting relevant jurisprudence.
4) The trial court erred by relying on non-binding Revenue Rulings and a letter sent by the Louisiana Department of Revenue.
5) The trial court erred by granting Pot-O-Gold’s motion for summary judgment even though there were outstanding issues of material fact.

STANDARD OF REVIEW

An appellate court must review a grant of summary judgment de novo, utilizing the same criteria that govern the trial court’s consideration of whether or not summary judgment is appropriate. See, e.g., Guillory v. Interstate Gas Station, 94-1767 (La.3/30/95), 653 So.2d 1152, 1155; J. Ray McDermott, Inc. v. Morrison, 96-2337 (La.App. 1st Cir.11/7/97), 705 So.2d 195, 202 writs denied, 97-3055, 97-3062 (La.2/13/98), 709 So.2d 753, 754. |4Summary judgment should be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B)(2). Summary judgment is designed to ensure just, speedy, and inexpensive determination of disputes and is thus favored under Louisiana law. La. C.C.P. art. 966(A)(2).

DISCUSSION

In its first two assignments of error, the City essentially argues that the trial court erred by misinterpreting and misapplying statutory tax law. The Louisiana Constitution allows local governments to levy and collect taxes on “the sale at retail, the use, the lease or rental, the consumption, and the storage for use or consumption, of tangible personal property and on sales of services as defined by law ...”. La. Const, art. VI, § 29(A). In accordance with this allowance, the City enacted Ordinance 10127 § 2, which provides in relevant part:

(a) There is hereby levied from and after January 1, 1995, for general municipal purposes, a tax upon the sale at retail, the use, the consumption, the distribution and storage as defined herein, and upon the lease or rental of tangible personal property and the sale of services within the City at a rate of two (2%) percent. This tax is levied under the general taxing authority conferred upon the City, as ratified by Article 6, Section 6 of the Louisiana Constitution of 1974.
(e) Each of the taxes specified herein shall be levied upon the following:
‡ ⅜ ⅜
(3) The gross proceeds derived from the lease or rental of tangible personal property, where the lease or rental of such | ^property is an established business, or part of the same is incidental or germane to the business. [Emphasis added.]

As stated above, Pot-O-Gold’s business operations included the leasing of portable toilets and holding tanks to customers and providing related cleaning and sanitation services. Although the leased toilets and tanks do constitute taxable tangible personal property, Ordinance 10127 § l(p) limits the definition of taxable “services” so as to exclude the waste removal or cleaning services provided by the appel-lee. Thus, standing alone, Pot-O-Gold’s services would ordinarily be nontaxable under the plain language of Ordinance 10127. Nonetheless, Pot-O-Gold may still incur tax liability for services that relate to the lease of tangible personal property (toilets and tanks) if the proceeds from these services constitute part of the “gross proceeds” derived from the rental of taxable tangible personal property. See Ordinance 10127 § 2(e)(3).

In its motion for summary judgment, Pot-O-Gold correctly noted that its furnished services were not an enumerated taxable service. Likewise, Pot-O-Gold contended payments received for these ordinarily nontaxable services could not be regarded as “gross proceeds” since the services were optional, not required for the rental of the toilets and tanks, and offered as an independent service separate and apart from its rental operations. Pot-O-Gold additionally pointed out that “gross proceeds” was not statutorily defined and cited jurisprudence that indicated any ambiguity or uncertainty |fiin statutory language should be resolved against the taxing authority and in favor of the taxpayer.

Previously, this court has been called upon to interpret the statewide counterpart to Ordinance 10127, La. R.S. 47:302, which provides in relevant part:

B. There is hereby levied a tax upon the lease or rental within the 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. [Emphasis added.]

This court has explained that sales and use taxes, like the ones levied by La. R.S. 47:302 and Ordinance 10127, are not imposed on conveyed property itself, but rather are imposed on the event incident to the initial use of conveyed property by a purchaser or lessee. See A.M.A. Distributors, Inc. v. School Board of the Parish of Iberville, et al., 98-0373 (La.App. 1st Cir.4/1/99), 729 So.2d 765, 767, writ denied, 99-1255 (La.6/25/99), 746 So.2d 600. As it is the transaction which is subject to taxation by the state or local municipality, when assessing the taxability of an agreement involving the lease of tangible personal property, there is ordinarily no breakdown into taxable and nontaxable elements. See McNamara v. Electrode Corp., 418 So.2d 652, 661 (La.App. 1st Cir.), writ denied, 420 So.2d 986 (La.1982). To determine whether the transaction is taxable, we must examine the “essence of’ or the “true object of’ the transaction. Id. at 662. The substance of the agreement, not the wording of the contract or the separation of ancillary options or services, determines the taxability of a transaction. See Id.

Enterprise Leasing Co. of New Orleans v. Curtis is illustrative. There, following an audit of the plaintiff corporation’s operations, Livingston Parish assessed Enterprise $25,212.01 in unpaid sales and use taxes. Enterprise Leasing Co. of New Orleans v. Curtis, 2007-0354 (La.App. 1st Cir.11/2/07), 977 So.2d 975, 976-77, writ denied, 2007-2320 (La.2/1/08), 976 So.2d 719. Enterprise paid the assessment under protest and sought a refund. Id. at 977. Enterprise rented automobiles to customers; when renting a vehicle, customers could either choose to accept personal responsibility for any damage that might occur to the vehicle, or could purchase collision damage waiver (CDW). Enterprise had not collected sales taxes for the CDW payments. Id. at 976-77. The trial court found in favor of the parish, holding that the CDW payments constituted part of the gross proceeds derived from the rental of the tangible personal property automobile. Id. at 977.

On appeal, Enterprise argued that the sale of CDW was an optional, separate purchase that did not constitute an integral part of an indivisible rental contract and should not have been regarded as the gross proceeds of the rental of tangible personal property. Id. at 979. This court rejected Enterprise’s argument and affirmed the trial court’s decision on this point. Id. at 981. We explained that Enterprise and its customers had contracted for CDW as part of the rental agreement, noted that the provision of CDW could only be made available in connection with the automobile rental, and concluded that the “real object” of the transactions at issue was the lease of a tangible personal property vehicle. Id. at 980. Although Enterprise attempted to avoid tax liability by noting that it offered other optional services not subject to sales and use taxes, like accident insurance and supplemental liability protection, we found that any other offered nontaxable ^services were immaterial to the determination of the taxa-bility of the rental transaction. See Id. at 980-81.

Subsequent to our decision in Enterprise, the Second Circuit decided a similar dispute using the same rationale in Rent-A-Center East, Inc. v. Lincoln Parish Sales and Use Tax Commission, 46,054 (La.App.2d Cir.3/9/11), 60 So.3d 95, 97, writ denied, 2011-0713 (La.5/20/11), 63 So.3d 985. There, the plaintiff corporation leased various items of tangible personal property to its customers. When renting property from Rent-A-Center (RAC), customers had the option to accept personal responsibility for damage to the rented property or they could purchase optional liability damage waiver (LDW) coverage, provided through a separately signed addendum to the rental agreement. Id. RAC had not collected sales taxes on the proceeds derived from this LDW coverage. Id. On appeal of summary judgment granted in favor of the parish the Second Circuit affirmed, concluding that the essence of the transactions was the rental of tangible personal property. Id. at 99. Like in Enterprise, although the LDW proceeds would ordinarily have been nontaxable, because the service was incidental to the rental, the money collected for the LDW coverage constituted taxable gross proceeds. Id.

In the instant case, the trial court relied heavily on the separability of the rendered services in granting Pot-O-Gold’s motion for summary judgment. For example, the trial court noted that lessees were not required to purchase the Pot-O-Gold’s cleaning and sanitation services and that these services were offered to other parties independently from the appellee’s rental operations. Despite recognizing that in the combined lease-services contracts at issue, the “true object” of the transactions was the furnishing of toilets and tanks, the trial court nonetheless concluded that nontaxable [ services continued to be nontaxable, regardless of the relationship between the services and the leased property. This finding does not comport with established jurisprudence and was in error.

While the Second Circuit may have relied, in part, on the fact that the disputed LDW service could not be purchased from anyone other than RAC, see Rent-A-Center, 60 So.3d at 99, the possibility of purchasing the disputed service from another party is not dispositive. Rather, a court must review the totality of the circumstances surrounding the event incident to the initial use of the rented property, i.e. the transaction itself, to determine its tax-ability. See A.M.A. Distributors, Inc., 729 So.2d at 767.

Here, the cleaning and sanitation services were provided in connection with, and incidental to, the rental of tangible personal property (toilets and tanks). We agree with the trial court that the “true object” of the transactions between Pot-O-Gold and its customers was the provision of the toilets and tanks. This finding should have determined the taxability of the entire transaction. Money collected for ordinarily nontaxable cleaning and sanitation services became taxable gross proceeds of the lease by virtue of the inexorably intertwined relationship between the services and the leased property. It is of no import whether the services were optional for lessees, whether the services could be purchased from another party, whether the services could be rejected, or whether the services could be purchased independently from the plaintiff by others.

CONCLUSION

Reviewing the trial court’s grant of summary judgment de novo, we find that the grant of summary judgment was in error. The judgment of the trial court is reversed and this case is remanded for further proceedings in | inaccordance with this holding. All costs of this appeal are assessed to the appellee, Pot-O-Gold Rentals, LLC.

REVERSED AND REMANDED.

McDONALD J. dissents and assigns reasons.

HIGGINBOTHAM, J. dissents and adopts McDONALD’s, J. reasons.

McDONALD, J.,

dissenting.

Li must respectfully dissent from the majority’s well written and well reasoned opinion, because I believe the trial judge’s opinion is just as well reasoned and is a reasonable interpretation ■ of the relevant ordinance. Not only does the ordinance not include the cleaning and waste removal as a taxable service, it specifically excludes it. Thus, as the majority indicates, this service standing alone would not be taxable under the plain language of Ordinance 10127. Additionally, the term “gross proceeds” is not defined.

The majority points out that the sales and use tax is not only imposed on the conveyed property, but also “on the event incident to the initial use of conveyed property by a purchaser or lessee.” They then resort to a discussion of determining the “essence of’ or the “true object” of the transaction, finding that the substance of the agreement, and not the separation of ancillary options or services, determines the taxability of the transaction.

The majority concludes that “the cleaning and sanitation services were provided in connection with, and incidental to, the rental of tangible personal property toilets and tanks ... [and] that the ‘true object’ of the transactions between Pot-O-Gold and its customers was the provision of the toilets and tanks.” In reaching this conclusion, the majority relies on two cases that I find clearly distinguishable. In Enterprise, the collision damage waiver insurance (CDWI)was only available if the vehicle was rented from Enterprise. It was not possible to rent the vehicle from another company and obtain the CDWI from Enterprise. The Usame is true for the liability damage waiver insurance (LDWI) at issue in the Rent-A-Center (RAC) case. The LDWI was only available for property rented from RAC. These two types of property insurance coverage, while optional, are inextricably woven into the fabric of the rental agreement.

That is not the case in the Pot-O-Gold situation. Pot-O-Gold provides three different options to its customers: the lease of the portable toilet with no cleaning services included; the lease of the portable toilet with cleaning services included; and the providing of cleaning services to another vendors’ portable toilet. The first is clearly taxable and the third is clearly not. It is the second situation that is at issue in this appeal. Pot-O-Gold points to the conflict between Louisiana Department of Revenue Ruling Nos. 06-013 and 06-012 that were relied on by the trial court. While Ruling 06-013 supports the taxing position, Ruling 06-012 does not. In Ruling 06-012, the LDR found that the waste removal fi’om a trash dumpster is not a taxable service. Pot-O-Gold quotes from the ruling:

The reason that the sales tax treatment of transactions for the furnishing of trash dumpsters and associated services ... is different from the tax treatment of transactions for the furnishing of portable toilet facilities and associated services[,] as discussed in that other [R]evenue [R]uling, is that the [“true object”] of the transactions for the dumpsters and trash pickup is the trash removal service. In the case of the transactions for portable toilets, the [“true object”] of the transaction is the furnishing of the facilities [themselves].

The trial judge found this to be distinction without a difference, so does Pot-O-Gold, and so do I. In referencing the contradiction, the trial court stated:

But, somehow that same non-taxable service then becomes taxable it it’s done in association with a port-o-let that plaintiff has provided. And I’m again at a loss at how the only differential ownership of the particular facility converts a non-taxable service that’s not contained in ... parish ordinance as a taxable service somehow becomes taxable because the container, port-o-john, whatever you want to call it, is owned by the person providing the service as opposed to the service being provided to a non-owned port-o-let. I think that gives a completely inconsistent result. I think Revenue Ruling 6-012 and 6-013 give completely inconsistent results in their treatment of the disposal — removal and disposal of waste from a port-o-let and removal and disposal of waste from a dumpster. And, again, I look at|ait, and their attempt to distinguish the two in the last paragraph of [Revenue Ruling] 6-012 is a distinction without a difference.

I believe the majority’s interpretation creates an absurd result. Providing cleaning services for the portable toilet is not a taxable event if it is owned by someone else; it is taxable if owned by the lessor. Thus, - if Pot-O-Gold were to form a separate entity that only provided cleaning services, this entity would not have to collect sales taxes.

It is hard for me (and evidently the trial judge wrestled with it) to understand the difference between the dumpster situation and the portable toilet situation. It is just as reasonable to find the true object of the portable toilet transactions is the removal of human waste as it is to find the object of the dumpster transactions is the removal of trash. Conversely, it would be just as reasonable to find that the true object of both the portable toilet and dumpster transactions is the lease of the unit and that the disposal of waste is ancillary to, and a part of, the lease.

Taxing statutes are to be interpreted liberally in favor of the taxpayer and against the taxing authority. If the statute can reasonably be interpreted more than one way, the interpretation less onerous to the taxpayer is to be adopted. UTELCOM, Inc. v. Bridges, 2010-0654 (La.App. 1 Cir. 9/12/11), 77 So.3d 39, 47, writ denied, 2011-2632 (La.3/2/12), 83 So.3d 1046. In this case, Ordinance 10127 is subject to more than one reasonable interpretation. Thus, the one favoring the taxpayer, Pot-O-Gold, should be adopted, as it was by the trial judge.

For these reasons, I would affirm the judgment of the trial court.

      . Although the City assessed taxes on both fuel surcharges and related services, the parties mutually agreed in open court that arguments relating to the cleaning, sanitation, and waste removal services likewise apply to the fuel surcharge issues. Thus, discussion here will be limited to those services fully briefed on appeal.

      . We find that the trial court’s grant of summary judgment constitutes reversible error as per the appellant’s first two assignments of error. Thus, we need not consider assignments of error 3 through 5.

      . The common law terminology "tangible personal property” is used to comport with the relevant Louisiana tax law(s). The phrase "tangible personal property” as used in sales/ use tax statutes is equivalent to "corporeal moveable property” as defined by the Louisiana Civil Code. See McNamara v. Electrode Corp., 418 So.2d 652, 656 (La.App. 1st Cir.1982).

      . EBR Sales & Use Tax Ordinance 10127 § l(p) limits taxable services to the following: furnishing of rooms by hotels and tourist camps; sales of admissions to places of amusement; furnishing of storage or parking privileges; furnishing of printing services; furnishing of laundry services; furnishing of cold storage space; and the furnishing of repairs to tangible personal property.


author: THERIOT, J.

text:
    Richard L. REYNOLDS v. Robert J. BORDELON III, Robert J. Bordelon Jr., USAgencies Casualty Insurance Company, Automobile Club Inter-Insurance Exchange, and/or Auto Club Family Insurance Company d/b/a Triple A Insurance, Nissan North America, Infinity Division of Nissan North America, Inc., A Luxury Car Division of Nissan Motors, Insurance Auto Auctions Corp., ABC Insurance Company, DEF Insurance Company and XYZ Insurance Company. State Farm Mutual Automobile Insurance Company as Subrogee of/and Linda Dupuy v. Robert Bordelon and Usagencies Casualty Insurance Company.
    Nos. 2014 CA 0123, 2014 CA 0124.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 19, 2014.

      Christine Y. Voelkel, Mandeville, Louisiana, for Plaintiff/Appellant, Richard L. Reynolds.
    P.M. Donovan, James F. Ryan, Metairie, Louisiana, for Defendant/Appellee USA-gencies Casualty Insurance Company.
    Before: GUIDRY, THERIOT, and DRAKE, JJ.
   THERIOT, J.

laThis appeal raises the issue of whether a defendant insurance company is entitled to dismissal after depositing the policy limits plus interest and court costs into the registry of the court. For the reasons that follow, we amend the judgment, and as amended, affirm.

FACTS AND PROCEDURAL HISTORY

This suit arises from a March 15, 2008 motor vehicle accident between Richard Reynolds and Robert Bordelon III. At the time of the accident, Robert Bordelon III was driving a vehicle owned by his father, Robert Bordelon Jr., and insured by USA-gencies. As a result of the accident, Richard Reynolds filed a petition for damages against Robert Bordelon III, Robert Bor-delon Jr., USAgencies, and a number of other defendants. Reynolds’s petition alleged that the accident was caused solely by Robert Bordelon Ill’s negligence and sought exemplary damages under La. C.C. art. 2315.4 due to the fact that Robert Bordelon III was intoxicated at the time of the accident.

On June 28, 2013, USAgencies filed a motion requesting an order allowing it to deposit its $10,000.00 policy limits, plus interest and court costs to date, in the registry of the court and seeking dismissal from the action with prejudice. USAgen-cies acknowledged their continuing duty to defend Robert Bordelon III, and to pay additional court costs associated with the continuing defense of Robert Bordelon III. Reynolds opposed USAgencies’ motion, and after a contradictory hearing on August 14, 2013, the trial court ordered that $14,824.87 would be deposited in the court 1 ¿registry on behalf of U.S. Agencies and further ordered that USAgencies was dismissed, with prejudice, from the action. Reynolds appealed.

DISCUSSION

On appeal, Reynolds argues that the trial court erred in dismissing USA-gencies because he has made a claim for exemplary damages, which he asserts US-Agencies attempts to avoid by seeking dismissal. Reynolds makes a vague, unsupported argument that his exemplary damages claim would somehow obligate USAgencies beyond the limits of its policy. However, regardless of whether the USAgencies policy provides coverage for exemplary damages, which is disputed in this case, an insurer cannot be held liable for exemplary damages in excess of its policy limits. Creech v. Aetna Cas. & Sur. Co., 516 So.2d 1168, 1174 (La.App. 2 Cir.1987), writ denied, 519 So.2d 128 (La.1988); Pietsch v. Farmer, 42,172, p. 4 (La.App. 2 Cir. 5/9/07), 957 So.2d 315, 317-318, writ denied, 07-1201 (La.9/21/07), 964 So2d 338; Davis v. Counts, 38,815, pp. 4-5 (La.App. 2 Cir. 8/18/04), 880 So.2d 968, 971. As noted by the court in Davis:

In the absence of a conflict with statutes or public policy, insurers have the same rights as individuals to limit their liability and enforce whatever conditions they impose upon their obligations. It is the particular insurance policy of the insured that establishes the limits of liability, and it is well established that this contract of insurance is the law between the parties.

Davis, 38,815 at pp. 3-4, 880 So.2d at 970 (citations omitted).

The public policy behind exemplary damages is to punish the tortfeasor and deter similar conduct. Pietsch, 42,172, p. 4, 957 So.2d at 317. Although the courts have held that insurance coverage for exemplary damages is not against public policy, Creech, 516 So.2d at 1172-74, neither of the intended purposes of exemplary damages (punishment or deterrence) |,4s served by making insurers liable for such damages over their- policy limits. Pietsch, 42,172, p. 4, 957 So.2d at 317. Furthermore, nothing in the language of La. C.C. art. 2315.4 reflects an intent by the legislature to. circumvent the contractual limits of liability agreed to by an insurer and its insured in the contract between them. Id. The USAgencies policy at issue herein has a $10,000.00 limit per person. Although in the absence of a clause excluding the payment of exemplary damages, USAgencies may be obligated to pay exemplary damages within its policy limits, the issue of whether the USAgen-cies policy provides such coverage is not before us today. Since policy limits, by their nature, exclude liability for damages in excess thereof, there is no need for an insurance policy to specifically exclude damages, exemplary or otherwise, which exceed the limits of the policy. Pietsch, 42,172, p. 4, 957 So.2d at 317-18. Any judgment awarded against USAgencies, exemplary or otherwise, would be limited to the $10,000.00 policy limits, plus interest and court costs.

Reynolds further argues that USAgencies should not be dismissed from the case because he has not accepted USA-gencies’ tender, and' thus, it cannot serve to limit his claims against the insurer for exemplary damages. However, as. noted above, the amount of any obligation for damages to be paid by USAgencies, exemplary or otherwise, is limited by the terms of the policy. USAgencies made an unconditional tender of the policy limits, plus interest and court costs. Dismissal of an insurer after an unconditional tender of its policy limits, plus interest and court costs, is supported by the jurisprudence, as long as the dismissal does not exempt the insurer from the payment of court costs incurred in its continuing representation of its insured. Morvan v. Moore, 43,904, pp. 7-9, (La.App. 2 Cir. 1/21/09), 2 So.3d 1204, 1208-09, writ denied, 09-0666 (La.5/29/09), 9 So.3d 164, | (¡USAgencies’ counsel acknowledged that USAgencies’ duty to defend was not extinguished by its dismissal from the suit, nor was its obligation to continue to pay court costs as they accrue. However, this was not reflected in the judgment dismissing USAgencies with prejudice. Therefore, the judgment ordering the deposit into the court registry by USAgencies and granting its motion for dismissal must be amended to provide that USAgencies would remain liable for court costs as they accrue in the proceedings against its insured.

DECREE

The September 10, 2013 judgment ordering the deposit of funds into the registry of the court and dismissing USAgen-cies with prejudice is amended to provide that USAgencies will continue to be liable for court costs as they accrue in the defense of its insured. As amended, that judgment is affirmed. Costs of this appeal are to be borne by the plaintiff, Richard L. Reynolds.

AMENDED, AND AS AMENDED, AFFIRMED.

      . Louisiana Civil Code article 2315.4. Additional damages; intoxicated defendant:
      In addition to general and special damages, exemplary damages may be awarded upon proof that the injuries on which the action is based were caused by a wanton or reckless disregard for the rights and safety of others by a defendant whose intoxication while operating a motor vehicle was a cause in fact of the resulting injuries.

      . This sum represented the $10,000.00 policy limits, plus interest and court costs to date.

      . The judgment made no mention of USAgen-cies’ continuing obligation to defend its insured or to pay court costs as they accrue.