author: KUHN, J.

text:
    Gregory Milton GRAUGNARD v. The CAPITAL AREA TRANSIT SYSTEM.
    No. 2012 CW 2025.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 20, 2013.

      Creighton Brooks Abadie, Glenn P. Marcel, Baton Rouge, Louisiana, for Relator Capital Area Transit System.
    J. Brian Juban, Kyle M. Keegan, Baton Rouge, Louisiana, for Respondents Gregory Milton Graugnard and William L. Smith.
    Before KUHN, GUIDRY, and CRAIN, JJ.
   KUHN, J.

li>We granted certiorari in response to the writ application filed by Capital Area Transit System (CATS), challenging the overruling peremptory exceptions raising objections of prescription, peremption, no cause of action and no right of action based on the trial court’s conclusion that the sixty-day limitation period for contesting the legality of a tax authorized by an election held on April 21, 2012, is inapplicable to the claims of unconstitutionality asserted by plaintiffs, Gregory Milton Graugnard and William L. Smith, Jr. Because we hold that the sixty-day period provided in La. R.S. 18:1294 applies to plaintiffs’ claims, we grant the writ, reverse the denial of the peremptory exceptions, sustain the exceptions, and dismiss the lawsuit with prejudice.

BACKGROUND

CATS is authorized to impose a tax on any subject of taxation within the territorial area of East Baton Rouge Parish or any local governmental subdivision or subdivisions located wholly within any of the municipalities located wholly within the boundaries of East Baton Rouge Parish for any transit-related purpose whatsoever, provided that the proposed tax is approved by a majority of voters voting on the proposition within the affected local governmental subdivisions at an election held in accordance with the Louisiana Election Code. Accordingly, CATS is authorized to call a tax election parish wide or within the limits of any municipality that is wholly located within the boundaries of East Baton Rouge Parish.

On April 21, 2012, CATS exercised its statutory authority and held special elections in the cities of Baton Rouge, Baker, and Zachary to levy an ad valorem tax (the Tax) within those cities. At that time, it is undisputed that CATS provided 1P,transit services within these three cities as well as in the unincorporated areas of East Baton Rouge Parish. However, because CATS did not call a parish-wide election, the registered voters that reside within the unincorporated areas of East Baton Rouge Parish were unable to participate in the April 21, 2012 election.

The purpose of the Tax was to improve the availability and quality of public transportation within the named cities. Proposed improvements included decreases in wait times, more efficient routes, and better signage and shelters. The Tax was also to provide funds for the operations and maintenance of transit services in East Baton Rouge Parish and for capital improvements and acquisitions, including the acquisition of immovable property. The cities of Baton Rouge and Baker passed the Tax.

Graugnard and Smith filed this suit challenging the validity of the Tax on equal protection grounds under both the federal and state constitutions. According to the allegations of their petition, Graugnard lives within the municipal boundaries of Baton Rouge. Smith, who lives in the unincorporated area of East Baton Rouge Parish, owns taxable property within the city of Baton Rouge. The gist of plaintiffs’ assertions is that individuals who reside outside of the cities of Baton Rouge and Baker, but own property inside those cities, were denied the right to vote in the Tax elections. Additionally, they maintain that individuals who pay the ad valorem taxes on property owned inside those cities suffer an equal protection violation because the proceeds of the Tax will be spent outside of the municipal limits for the benefit of individuals and businesses that do not have to pay the Tax. They aver their claim’s’ also set forth a cause of action under the 28 U.S.C. § 1988, which provides an enforcement action for federal constitutional and | ^statutory rights. Plaintiffs request a declaration that the Tax is invalid as a violation of their federal and state constitutional equal protection rights.

CATS filed several exceptions, including peremptory exceptions urging objections of prescription, peremption, no cause of action and no right of action. CATS claimed that because the parties stipulated that plaintiffs had not filed their suit within sixty days, CATS was entitled to a dismissal of the suit under La. R.S. 18:1294.

On October 29, 2012, the trial court sustained certain portions of the exceptions that effectively dismissed plaintiffs’ Baker Tax claims. Thus, only plaintiffs’ Baton Rouge Tax claims remained viable. The trial court determined plaintiffs’ claims were outside the scope of La. R.S. 18:1294, finding that Louisiana constitutional and statutory law does not “fix” a prescriptive or peremptive period for federal constitutional claims asserted in a Louisiana state court. Judgment overruling the peremptory exceptions was signed on November 13, 2012. CATS applied for a supervisory writ.

DISCUSSION

Louisiana law provides the limitation period for plaintiffs’ federal constitutional claims and § 1983 action

The trial court concluded that Louisiana constitutional and statutory laws do not “fix” a prescriptive or peremptive period for federal constitutional claims asserted in state court. We disagree.

42 USC § 1983 provides a civil remedy for the deprivation of federally created rights, but it does not provide a limitation period for asserting the action. When Congress has not established a time-limitation period for a federal cause of action, the settled practice is to adopt the appropriate state limitation period as federal law if the state law is not inconsistent with federal law or policy. See Owens v. Okure, 488 U.S. 235, 239, 109 S.Ct. 573, 576, 102 L.Ed.2d 594 (1989); Wilson v. Garcia, 471 U.S. 261, 271-79, 105 S.Ct. 1938, 1943-48, 85 L.Ed.2d 254 (1985); see also 42 U.S.C. § 1988(a). Accordingly, to the extent it is not inconsistent with federal law or policy, Louisiana law provides the limitation period for plaintiffs’ federal constitutional claims.

The U.S. Supreme Court’s decision in Wilson provides the correct starting point for analyzing what Louisiana limitation period applies to plaintiffs’ § 1983 |fiequal protection claims. In practice, § 1983 tends to encompass numerous and diverse topics. Prior to Wilson, the U.S. Supreme Court instructed federal courts to select the forum state’s statute of limitations that was “most analogous” and “most appropriate” to the particular action, so long as the chosen limitations period was consistent with federal law and policy. See Owens, 488 U.S. at 239, 109 S.Ct. at 576. But there were inherent problems with this approach, since the particular facts of each claim could almost always be analogized to fit within one or more legal theories with different limitation periods arising within the state. See Wilson, 471 U.S. at 272-75, 105 S.Ct. at 1944-46.

In Wilson, the U.S. Supreme Court set about the task of establishing a single rule for determining the appropriate limitation period for a § 1983 remedy based on a broad characterization of all § 1983 claims. Noting that characterizing § 1983 actions for limitation purposes was a federal question, the Wilson court found that a broad characterization furthered federal interests of uniformity, certainty, and judicial economy in federal civil rights litigation. After considering the historical catalyst for Congress’ enactment of the Civil Rights Act of 1871, the Wilson court found that the type of atrocities Congress sought to remedy when it enacted § 1983 plainly sounded in tort. For purposes of statutory time limits, the Wilson court concluded that § 1983 actions are best characterized as tort claims involving personal injuries. Thus, as a general rule, the limitation period applicable to § 1983 actions is the state statute of limitation for personal injury actions. See Wilson, 471 U.S. at, 268-79, 105 S.Ct. at 1944-48.

Under the broad rule articulated in Wilson, Louisiana’s one-year liberative prescription for delictual actions, set forth in La. C.C. art. 3492, provides the 17limitation period for § 1983 actions Since Wilson was decided, federal and state courts have applied the forum state’s general personal injury statutory limitation period to actions involving such conduct as police brutality, unlawful arrest, and seizure of property without advance notice or sufficient opportunity to be heard. See Owens, 488 U.S. 235, 109 S.Ct. 573; Daley v. U.S. Dist. Court, 383 Fed.Appx. 178, 179 (3d Cir.2010); Webster v. City of Amarillo, 68 F.3d 464 (5th Cir.1995). But the issue before us now is whether the Wilson rule is appropriate in a constitutional challenge of the validity of a state tax, which appears to be res nova.

Undoubtedly, Wilson sets out compelling federal principles and policies that support a broad characterization of § 1983 actions as personal injury actions for limitation purposes. However, we believe that in suits that attempt to challenge the validity of a state tax, federal principles of comity and noninterference in state fiscal matters call for federal restraint when state law provides a remedy that adequately protects federal rights. See Nat’l Private Truck Council, Inc. v. Oklahoma Tax Comm’n, 515 U.S. 582, 115 S.Ct. 2351, 132 L.Ed.2d 509 (1995); Fair Assessment in Real Estate Ass’n Inc. v. McNary, 454 U.S. 100, 116, 102 S.Ct. 177, 186, 70 L.Ed.2d 271 (1981).

These federal principles and policies are typically discussed in the context of whether a federal court should restrain the collection of a state tax. The Tax Injunction Act, set forth in 28 U.S.C. § 1341 enacted in 1937, is a statutory manifestation of the federal policy of noninterference and federal restraint when there is an adequate state remedy to protect the federal rights asserted. See Fair Assessment, 454 U.S. at 116, 102 S.Ct. at 186. This federal policy of noninterference in state fiscal matters is a longstanding one. Notably, U.S. Supreme Court decisions in cases seeking federal court equitable relief against state taxation were decided before and after the enactment of the 1871 Civil Rights Act. Fair Assessment, 454 U.S. at 109-16,102 S.Ct. at 182-86.

IsFor example, in 1870, the U.S. Supreme Court underscored the importance of this policy, noting:

It is upon taxation that the several States chiefly rely to obtain the means to carry on their respective governments, and it is of the utmost importance to all of them that the modes adopted to enforce the taxes levied should be interfered with as little as possible. Any delay in the proceedings of the officers, upon whom the duty is devolved of collection the taxes, may derange the operations of government, and thereby cause serious detriment to the public.

Dows v. City of Chicago, 78 U.S. 108, 110, 11 Wall. 108, 20 L.Ed. 65 (1870).

The reasons that support federal noninterference with state tax administration — such as dependency of state budgets on receipt of local tax revenues and the havoc that would result if federal injunc-tive relief against collection of state or local taxes were widely available — are just as compelling today as they were when the Tax Injunction Act was passed. See Rosewell v. LaSalle Nat’l Bank, 450 U.S. 503, 527, 101 S.Ct. 1221, 1236, 67 L.Ed.2d 464 (1981). Thus, the principle of comity bars taxpayers’ damages actions brought in federal courts under 42 U.S.C. § 1983. Fair Assessment, 454 U.S. at 116, 102 S.Ct. at 186.

In Nat’l Private Truck Council, the U.S. Supreme Court considered the federal policy of noninterference, as articulated in Fair Assessment, in federal constitutional challenges to state tax laws brought in state court. In determining whether Congress had authorized state courts to issue injunctive and declaratory relief in state tax cases, the U.S. Supreme Court interpreted § 1983 in light of the strong principle against federal interference with state taxation. Given this principle, the U.S. Supreme Court held that § 1983 does not call for either federal or state courts to award injunctive and declaratory relief in state tax cases when an adequate legal remedy exists. Nat’l Private Truck Council, 515 U.S. at 589-90, 115 S.Ct. at 2355-56.

19Thus, in tax assessment cases, the U.S. Supreme Court has concluded that Congress did not intend for § 1983 to provide a remedy for federal challenges to state tax systems, whether in federal or state court, when a state provides a plain, adequate, and complete remedy. See General Motors Corp. v. City of Linden, 143 N.J. 336, 671 A.2d 560 (1996), cert, denied, 519 U.S. 816, 117 S.Ct. 66, 136 L.Ed.2d 27 (1996).

While Fair Assessment and Nat’l Private Truck Council involved § 1983 actions challenging the validity of a tax in tax assessment cases, we find the underlying federal policies articulated in those cases apply with equal force to a § 1983 action challenging the validity of a tax levied by a tax election. These federal principles are no less compelling today than they were when Wilson was decided. Thus, while we find that Louisiana law provides the applicable limitation period for plaintiffs’ federal and state constitutional challenges to the Tax, we find that Louisiana’s statute of limitations for personal injury actions does not apply.

Plaintiffs’ claims fall within the type of challenges that are subject to the sixty-day limitation period provided in La. R.S. 18:1294

In granting certiorari, the parties were ordered to brief the issue of what period of limitation applies to a § 1983 federal constitutional equal protection claim challenging the validity of a state ad valorem tax and tax election brought in a Louisiana district court. CATS asserts that the sixty-day period provided in La. R.S. 18:1294, with its underpinnings founded in the Louisiana State Constitution, provides the correct limitation period for all of plaintiffs’ constitutional claims and causes of action.

Article VI, § 35(A) of the Louisiana Constitution, provides:

For sixty days after promulgation of the result of an election held to incur or assume debt, issue bonds, or levy a tax, any person in interest may contest the legality of the election, the bond issue provided for, or the tax authorized, for any cause. After that time no one shall have any cause or right of action to contest the regularity, formality, or legality of the election, tax provisions, or bond [ ^authorization, for any cause whatsoever. If the validity of any election, tax, debt assumption, or bond issue authorized or provided for is not raised within the sixty days, the authority to incur or assume debt, levy the tax, or issue the bonds, the legality thereof, and the taxes and other revenues necessary to pay the same shall be conclusively presumed to be valid, and no court shall have authority to inquire into such matters.

And in conjunction its constitutional source provision, La. R.S. 18:1294, which is part of Louisiana’s comprehensive election code, similarly provides:

For sixty days after promulgation of the results of an election held under this Chapter to incur debt, issue bonds, levy or increase a tax or assume debt, any person in interest may contest the legality of the election, the bond issue provided for, the tax authorized, or the assumption of indebtedness for any cause. After that time no one shall have any cause or right of action to contest the regularity, formality, or legality of the election, tax provisions, or bond authorization, for any cause whatsoever. If the validity of any election, tax, debt assumption, or bond issue authorized or provided for is not raised within the sixty days, the authority to incur or assume debt, levy the tax, or issue the bonds, the legality thereof, and the taxes and other revenues necessary to pay the same shall be conclusively presumed to be valid, and no court shall have authority to inquire into such matters.

We hold that these provisions clearly encompass the claims asserted in the instant petition. The statutory language is broad enough to include “any cause” for contesting the legality of the election and tax authorized. The obvious intent of these provisions to include all challenges— no matter the legal theory — is further demonstrated with the language concerning the effect of not challenging the validity of the election or tax within the sixty-day period. The provisions state that after sixty days, “no one shall have any cause or right of action to contest the regularity, formality, or legality of the election, tax provisions, or bond authorization, for any cause whatsoever,” that “the authority to ... levy the tax ... shall be conclusively presumed to be valid,” and that “no court shall have the authority to inquire” into the validity of the election or tax authorized by the election. See La. Const, art. VI, § 35(A) and La. R.S. 18:1294. It is difficult to envision how the citizens of this state in enacting their constitution or the Louisiana legislature could have more clearly articulated the intent to provide that |nif the validity of a tax authorized by an election is not challenged within the sixty-day period,' it is too late no matter the cause.

Plaintiffs’ contention that La. R.S. 18:1294 only applies when the election authorizes a bond or other assumption of state debt or a tax associated with a bond and that because the April 21, 2012, tax election did not involve authorizing bonds or other state debt, La. R.S. 18:1294 has no applicability to their claims has already been addressed. Examining former La. R.S. 39:513, the predecessor to La. R.S. 18:1294, this court held that the sixty-day period applied to tax elections even when no bond is at issue. Audubon Ins. Co. v. Parish of East Baton Rouge, 366 So.2d 972 (La.App. 1st Cir.1978).

As to what Louisiana limitation period applies to their federal constitutional claims, plaintiffs take the untenable position that Louisiana’s payment under protest statute, set forth in La. R.S. 47:2134, is the only state remedy in which they could challenge the legality of the Tax.

La. R.S. 47:2134 provides a taxpayer with a remedy to maintain a legality challenge to the amount or the enforcement of an ad valorem tax, when the taxpayer timely pays the disputed amount and provides notice of his intent to file suit for the recovery of the protested tax. The statute requires the suit to be filed within thirty days from the date of the protested payment. See La. R.S. 47:2134(0(2).

The Louisiana Supreme Court has determined that the predecessor to La. R.S. 47:2134, former La. R.S. 47:2110, sets forth the proper method by which payment of an ad valorem tax may be resisted when the tax is not authorized by an election. Therefore, La. R.S. 47:2134 applies only when the tax is imposed by Louisiana’s constitution or legislature. Allied Chemical Corp. v. Iberville Parish Police Jury, 426 So.2d 1336, 1339 (La.1983).

112The trial court erred in interpreting the applicability of La. R.S. 18:1294 as limited to only those instances where the constitutionality of the enabling statute setting forth the tax authority’s power to call the election is challenged. Certainly, contesting the validity of the election and tax based on a federal or state constitutional challenge to the enabling statute is encompassed by the broad language of La. R.S. 18:1294. See Cipriano v. City of Houma, 395 U.S. 701, 89 S.Ct. 1897, 23 L.Ed.2d 647 (1969) (per curiam). But the trial court’s conclusion limiting the application of La. R.S. 18:1294 to that narrow instance was error.

La. R.S. 18:1294 provides an adequate remedy to protect plaintiffs’ federal and state constitutional rights

We also conclude that the remedy provided in La. R.S. 18:1294 adequately protects the federal rights plaintiffs assert in their suit. Federal courts consider a state remedy to be “adequate” when it provides plain, speedy, and efficient means to redress the alleged violation of federal rights in courts and affords plaintiffs with a complete judicial determination of the federal constitutional claims asserted that can be ultimately reviewed by the U.S. Supreme Court. See Fair Assessment, 454 U.S. at 116, 102 S.Ct. at 186; accord Nat’l Private Truck Council, 515 U.S. 582, 115 S.Ct. 2351; see also La. R.S. 28 U.S.C. § 1341.

La. R.S. 18:1294 is part of Louisiana’s comprehensive election code, which is integral in Louisiana’s overall and extensive finance, revenue, tax administration, and municipal taxation scheme. Although La. R.S. 18:1294 requires challenges to the validity of a tax to be brought within sixty days of the promulgation of the election results, that time limitation period adequately protects the federal rights at issue. Louisiana’s Election Code requires the publication of the notice of election, which includes a statement of the purpose for which the tax is to be levied, “once a week for four consecutive weeks” and “[n]ot less than 11sforty-five days nor more than ninety days shall intervene between the date of the first publication and the date of the election.” La. R.S. 18:1284 & 1285. Thus, the public was first apprised of the provisions of the Tax, which plaintiffs contend offends the federal and state constitutions, at least forty-five days before the April 21, 2012 elections. La. R.S. 18:1294 also complies with the federal policy concerning speedy access to state court. The statute provides direct access to court and an opportunity for a complete judicial determination of federal constitutional issues as long as the suit is brought within the sixty-day limitation period. And that decision is subject to appellate review in the Louisiana courts and the U.S. Supreme Court. See 28 U.S.C. § 1257; La. Const, art. V, § 5(F).

Plaintiffs urge that statutes setting forth abbreviated state limitation periods, such as those provided by the Louisiana Election Code and Louisiana’s payment under protest statute, even if asserted in state court are contrary to the underlying federal purposes of enacting § 1983 and, therefore, run afoul of and are preempted by the Supremacy Clause. See U.S. Const, art. VI, cl. 2. In that same vein, plaintiffs maintain that even if La. R.S. 18:1294 bars their state constitutional claims, their § 1983 civil rights action cannot be so severely limited by a sixty-day peremptive period, citing two U.S. Supreme Court cases where the state limitation periods were determined to be too restrictive to adequately protect the federal right asserted.

In Burnett v. Grattan, 468 U.S. 42, 104 S.Ct. 2924, 82 L.Ed.2d 36 (1984), the U.S. Supreme Court found that Maryland’s six-month limitation period for filing employment discrimination complaints for administrative resolution did not provide the appropriate state statute of limitations for an action brought by state college employees alleging racial/sex based employment discrimination. In Felder v. Casey, 487 U.S. 131, 108 S.Ct. 2302, 101 L.Ed.2d 123 (1988), a Wisconsin notice-of-claim statute, which provided that no action may be brought or 114maintained against any state governmental subdivision, agency, or officer unless the claimant provided written notice of the claim within 120 days of the alleged injury, was held to conflict with the remedial objections of federal civil rights law and, therefore, was preempted by federal law. But plaintiffs’ reliance on these federal cases is misplaced because these cases are clearly factually distinguishable from the instant case. Neither Burnett nor Felder involved a state tax suit or a federal constitutional challenge to the validity of a tax; thus, the underlying concerns of federal restraint and noninterference in state fiscal matters and tax administration were not at issue. As such, the cases are inapposite.

A shortened limitation period in suits challenging the validity of a state tax is consistent with federal policies and its interest in providing certainty, efficiency, and quick resolution of matters involving funding public projects with revenue from taxes approved by a majority of the electorate. If federal constitutional challenges to the validity of state tax and bond elections were regulated by the one-year prescriptive period Louisiana provides for delictual actions, the effect would be chilling on the ability of local governments to finance vital local services such as transit systems.

The Louisiana Supreme Court and this court have applied the shortened limitation periods provided by Louisiana’s constitution and statutory laws in actions asserting federal or state constitutional challenges to bonds and taxes authorized by election; the validity of issue of a bond; and taxes levied under authority of Louisiana’s legislature or constitution. See Naquin v. Lafayette City Parish Consol. Gov’t, 2006-2227 (La.2/22/07), 950 So.2d 657, 669 (provisions of bond referendum were conclusively presumed valid after expiration of sixty-day peremptive period); Andrieux v. East Baton Rouge Parish Sch. Bd., 254 La. 819, 227 So.2d 370, 370-371 (1969) (suit challenging constitutionality in a bond and tax election could not be maintained where it was filed more than 60 days after results lifiof election were promulgated); McLavy v. American Legion Housing Corp., 227 La. 300, 79 So.2d 316, 320 (1955) (where time within which to attack validity of sewerage system bond issue and the accompanying sewerage charge had run, validity of election and bond issue authorized was conclusively presumed and taxpayers could not thereafter attack the constitutionality of bond issue in declaratory judgment action); Redmon v. Sub-Sewerage Dist. No. 1 of Sewerage District No. 1, Parish of Jefferson, 226 La. 245, 75 So.2d 854 (1954) (state constitutional subsection limiting time within which to contest legality of a sub-sewerage bond issue was applicable to all cases including those in which the constitutionality or legality of the statutes or ordinances were attacked); Rankin v. East Baton Rouge Parish Sch. Bd., 233 So.2d 573, 577 (La.App. 1st Cir.1970) (per curiam) (sixty-day prescriptive period for contesting legality of bond elections applied to suit challenging the legality of bond elections as violating federal and state constitutional rights). See also Cipriano, 395 U.S. at 706-07, 89 S.Ct. at 1900-01. Accordingly, we conclude that La. R.S. 18:1294 provides an adequate remedy for plaintiffs’ federal and state constitutional claims.

| irDECREE

Because plaintiffs did not file their suit within the sixty-day period required by La. R.S. 18:1294, it is untimely. The trial court erred in ruling to the contrary. Therefore, the writ is granted. That portion of the judgment overruling CATS’ peremptory exceptions raising the objections of peremption, prescription, no cause of action, and no right of action is reversed, and judgment is rendered in favor of CATS, sustaining the peremptory exceptions and dismissing plaintiffs’ suit with prejudice.

WRIT GRANTED. DENIAL OF PEREMPTORY EXCEPTIONS REVERSED AND JUDGMENT RENDERED, SUSTAINING PEREMPTORY EXCEPTIONS AND DISMISSING SUIT WITH PREJUDICE.

      . See La. R.S. 18:1294 of the Louisiana Election Code.

      . Although CATS alternatively challenged the trial court's overruling of a dilatory exception raising the objection of prematurity, in light of our ruling, that issue is moot.

      .Although the petition for declaratory judgment and a permanent injunction was originally filed only by Graugnard, it was subsequently amended to add Smith as an additional plaintiff.

      . Plaintiffs also requested permanent injunctions, enjoining the assessment or collection of the Tax and the issuance by CATS of any certificates of indebtedness, bond, or other form of debt to be paid by future Tax revenues.

      . CATS also filed a peremptory exception objecting on the basis of the non-joinder of a party and dilatory exceptions objecting on the basis of vagueness, ambiguity, and nonconformity of the petition. In conjunction with the peremptory exceptions, CATS moved to strike specific equal protections claims urged by the plaintiffs.

      . The trial court sustained CATS' peremptory exceptions raising objections of no right of action as well as a motion to strike as to plaintiffs’ Baton Rouge and Baker disenfranchisement and equal protection claims. Pursuant to plaintiffs' stipulation that they were not seeking to enjoin issuance of the certificate of indebtedness purchased by Regions Bank, the trial court also sustained CATS’ exceptions raising objections of no cause of action and its motion to strike issuance of an injunction enjoining CATS from issuing any certificate of indebtedness, bond, or other form of debt. Likewise, pursuant to plaintiffs’ stipulation that they were not seeking in-junctive relief applicable to the offices of the East Baton Rouge Parish Assessor or Sheriff, the trial court overruled CATS’ exception objecting on the basis of non-joinder as moot. Lastly, CATS’ withdrawal of its dilatory exceptions objecting on the basis of vagueness, ambiguity, and nonconformity of the petitions was noted in the judgment under review. None of these rulings are before us.

      .42 U.S.C. § 1983 states:
      Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia

      . The U.S. Supreme Court concluded that Congress has implicitly endorsed this “borrowing” approach with respect to claims enforceable under the Reconstruction Civil Rights Acts in 42 U.S.C. § 1988. See Wilson, 471 U.S. at 267-68, 105 S.Ct. at 1942.

      . See La. R.S. 48:1460(12) (giving CATS the power to impose a tax on any subject of taxation within the territorial area of participating parishes for any transit-related purpose whatsoever, except as otherwise prohibited).

      . In Cipriano, the U.S. Supreme Court found that the provision in a Louisiana statute authorizing only property owners to vote in a bond election was unconstitutional. However, the Supreme Court did not void the election because the challenge was not brought within the sixty-day limitation period provided in former La. R.S. 39:513, the predecessor to La. R.S. 18:1294.


source: Caselaw Access Project

author: PETTIGREW, J.

license: Public Domain

text:
    Richard LEPINE v. STANDARD GRAVEL.
    No. 2013 CA 0647.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 27, 2013.

      Timothy R. Richardson, New Orleans, LA, for Plaintiff-Appellant Richard Le-pine.
    Paul Michael Elvir, Jr., Metairie, LA, for Defendants-Appellees Standard Gravel Co., Inc. and Liberty Mutual Insurance Company.
    Before PETTIGREW, McDONALD, and McClendon, JJ.
   PETTIGREW, J.

|2In this workers’ compensation case, the claimant appeals a judgment of the Office of Workers’ Compensation (OWC). That judgment dismissed his claims, finding the claimant failed to bear his burden of proving the actual occurrence of either of two alleged injury-producing accidents during the course and scope of his employment with defendant, Standard Gravel Co., Inc. (Standard Gravel). After a thorough review of the record and for the following reasons, we affirm.

FACTUAL AND PROCEDURAL HISTORY

Claimant, Richard Lepine, Jr., worked as a dredge operator for Standard Gravel from February 2011 until December 7, 2011, when he was laid off due to a reduction in work force. Although the record before us contains only one of the 1008 disputed claim forms filed by Lepine, the record otherwise reveals that Lepine filed two disputed workers’ compensation claims listing two injury-producing work-related accidents — one allegedly occurring on November 8, 2011, and the other on December 7, 2011. The record also reveals that the two claims — docket numbers 12-01178 and 12-01179 — were consolidated by the workers’ compensation hearing officer by order dated June 26, 2012.

The disputed claim for compensation contained in the record before us was filed by Lepine on February 22, 2012, alleging that he suffered injury as a result of a work-related incident which occurred on November 8, 2011. In that claim, Lepine asserted that he was employed as a dredge operator for Standard Gravel in Washington Parish, when he was “[pjulling [a] cable out of a pond and injured [his] back.” According to his claim form, Le-pine reported the accident to his supervisor, James Bounds, on the date of the accident. Also in that claim form, Lepine asserted he was treated for the injury sustained as a result of that accident at Slidell Memorial Hospital, at the Neuroscience and Pain Institute by Dr. Jonathan Thompson in Covington, and by Dr. Pedro Serrant in Slidell. Lepine alleged that defendants, Standard Gravel and, its insured, Liberty Mutual ^Insurance Company (Liberty Mutual), failed to pay wage benefits, refused to authorize an evaluation by his physician of choice, and failed to authorize any medical treatment. He further alleged that the defendants were arbitrary and capricious in their failures, entitling him to an additional award of attorney’s fees, penalties, and interest.

The record does not contain a copy of, but refers to, the second disputed claim form that was filed by Lepine alleging the occurrence of a December 7, 2011 work-related incident that also resulted in injury. He claimed that while he was breaking down a pump, he was pulling on wrenches when he fell backwards onto his back, causing injury thereto. He, again, alleged that he reported the incident and injury to his supervisor, James Bounds, who, allegedly, then terminated his employment.

The defendants answered the claims, generally denying all allegations, except to admit that Lepine was employed by Standard Gravel at the time of the alleged accident, and that at that time, Standard Gravel’s workers’ compensation insurer was Liberty Mutual. Further answering, defendants asserted a dispute as to whether any accident even occurred, and in the alternative, only if an accident or accidents are proven to have occurred, the extent of any alleged work-related injury or any benefits that may be payable therefor.

A hearing was held on October 1, 2012, before the OWC, following which a judgment was rendered and signed on October 31, 2012, dismissing Lepine’s claims, finding he failed to carry his burden of proof that he suffered a work-related accident with injury within the course and scope of his employment on either of the dates alleged.

In reasons for judgment, the OWC noted that Lepine had no witnesses at trial to support his testimony that he suffered those two work-related accidents: “[Claimant has nothing but his own testimony that he suffered an accident on 12-7-2011.” Moreover, the OWC noted that the other witnesses, besides Lepine, disputed the occurrence of any accidents involving Lepine, and that defendants’ witnesses consistently testified that Lepine did not report any accident until after he was told he was being laid off. Based on those findings, the OWC concluded claimant failed to carry his burden of proof and dismissed his claims. This appeal by Le-pine followed.

14ASSIGNMENT OF ERROR

In his sole assignment of error, Lepine asserts the OWC erred in determining he did not “suffer a work-related injury,” which raised the issue of whether the OWC erred in concluding he did not present sufficient evidence “of an injury.” He also argues the OWC erred in not applying the presumption of causation. Notably, the claimant’s assignment of error, rather than addressing the finding on which the OWC’s judgment was based — that he failed to prove the accident occurred— instead, argues about causation; i.e., that the OWC found he did not prove an injury resulting from an accident, a finding the OWC did not need to reach, having found a failure to prove the occurrence of an accident.

Inasmuch as the OWC’s finding that there was no proof that any work-related accident occurred, we pretermit any analysis or discussion of causation and/or the existence of injury, we also pretermit Le-pine’s arguments concerning that nonissue, and instead, review the record to determine the propriety of the OWC’s findings regarding the occurrence of work-related accidents.

APPLICABLE LAW

In Ardoin v. Firestone Polymers, L.L.C., 10-0245 (La.1/19/11), 56 So.3d 215, the supreme court summarized the law applicable to the factual scenario presented in this case as follows:

A worker in a compensation action must establish “personal injury by accident arising out of and in the course of his employment.” La.Rev.Stat. 23:1031(A). An accident is “an unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration.” La.Rev.Stat. 23:1021(1). As in other civil actions, the plaintiff-worker in a compensation action has the burden of establishing a work-related accident. Nelson v. Roadway Express, Inc., 588 So.2d 350 (La.1991); Prim v. City of Shreveport, 297 So.2d 421 (La.1974). An employee may prove by his or her testimony alone that an unwitnessed accident occurred in the course and scope of employment if the employee can satisfy two elements: (1) no other evidence discredits or casts serious doubt upon the worker’s version of the incident; and (2) the worker’s testimony is corroborated by the circumstances following the alleged accident. Bruno v. Harbert International, Inc., supra, 593 So.2d [357] at 361 [(La.1992)] (citing West v. Bayou Vista Manor, Inc., 371 So.2d 1146 (La.1979); |fiMalone and Johnson, 13 Civil Law Treatise, Workers’ Compensation, Section 253 (2d Ed.1980)), As we noted in Bruno, corroboration of the worker’s testimony may be provided by the testimony of fellow workers, spouses, or friends, or by medical evidence. Id.

56 So.3d at 218-19. Moreover, it is well settled that a reviewing court may not disturb the factual findings of the trier of fact in the absence of manifest error. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989); Arceneaux v. Domingue, 365 So.2d 1330, 1333 (La.1979).

EVIDENCE PRESENTED

The only evidence presented by Lepine in support of his claims was a pay stub from Standard Gravel, Lepine’s medical records, the deposition testimony of Dr. Jonathan Thompson, a pain management specialist, and Lepine’s own testimony. Notably, of this evidence, the only evidence pertinent to the occurrence of the alleged work-related accidents was Le-pine’s own testimony.

According to Lepine’s testimony at the hearing, he stated that on approximately November 8, 2011, he was performing his duties as a dredge operator, moving anchors and utilizing approximately 300-400 feet of steel cable, when the “port cable got popped on the dredge.” According to Lepine, he then had to go out on a small steel boat and retrieve the broken cable, by pulling it up manually. While doing so, he stated he felt pain in his neck. He stated that when he went back to the scale house after work that evening, he mentioned to his supervisor. Bounds, that he had hurt himself pulling up that cable. He testified that Bounds told him he probably was sore from using muscles he was not accustomed to using. However, Lepine testified that he reported back to work the next day, and again told Bounds that he was still hurting and that he had injured himself pulling up the cable the previous day. Lepine stated that he continued to work, and the pain continued to worsen; so, on December 1, 2011, he sought treatment at Slidell Memorial Hospital. He testified that he reported having headaches with pain radiating down and into the neck, which had been occurring for several weeks prior. Lepine testified that he returned to work the next day and told Bounds that he had been instructed to follow up with his own doctors to determine the cause of his headaches.

| fiWith regard to the second alleged accident, Lepine testified that on December 7, 2011, he was again working as a dredge operator when the shaft broke, requiring him to disassemble the pump by using large ratchets and wrenches to break the “big old bolts” loose. He stated the bolts were large and very tight, and that when they would “pop loose” all of a sudden, “it felt like a shockwave running through your body.” After getting three bolts loose, Lepine started having cramps, but “just kind of blew them off and kept on working, doing what I can do.” He stated that later that afternoon, he again reported to his supervisor, Bounds, that he was having cramps and wasn’t feeling very well. He stated that when he and Bounds arrived at the scale house, where he believed they were going to get a crane they needed, Bounds told him he was being laid off.

According to Lepine, the following morning, December 8, 2011, he felt that he had hurt himself, since he was having trouble walking, and he went back to Slidell Memorial Hospital.

The medical records consist of an emergency room record from Slidell Memorial Hospital, revealing that Lepine went to the emergency room on December 1, 2011, complaining of head and neck pain that he reported had. been occurring for three days. Notably, he did not report the occurrence of any accident or injury. He underwent x-rays to the head and neck, which revealed no fractures or abnormalities. He was discharged that same day, with a diagnosis of neck spasms and given prescriptions for steroids, a muscle relaxer, and pain medication. He was advised to follow up with his primary physician.

The record also contains the emergency room record from Slidell Memorial Hospital for December 8, 2011, when Lepine returned for treatment, this time complaining of flank pain that had lasted for one day. Again, he did not report the occurrence of an accident or incident in connection with the pain, although he did report that the day prior, he had been working with heavy machinery. He underwent a CT scan of the abdomen, which failed to reveal any abnormalities. He was diagnosed with lumbosacral strain and discharged with anti-inflammatory medications, a muscle relaxer, and pain medicine. He was also advised to follow up with his primary care physician within two days.

|7On December 13, 2011, Lepine followed up with Dr. Pedro Serrant, and complained of back pain, limited range of movement and limited activity as a result of that pain, which he reported had lasted a week. He also complained of headaches. Notably, again, he reported no injury or accident in connection with the pain Dr. Serrant ordered an MRI and advised Lepine to seek the help of a spine specialist, Dr. James C. Butler, whom Lepine saw on December 21, 2011.

Dr. Butler reviewed the MRI of Le-pine’s spine and diagnosed him with a symptomatic L5-S1 disc extrusion with L5 nerve root compression and a L3-4 forami-nal disc protrusion of unknown clinical significance. According to Dr. Butler’s notes, Lepine did mention to him that he thought his symptoms may be work related, as his pain began when he was at work, rebuilding a pump, and the following day, he awoke, unable to walk. Dr. Butler discussed his findings with Lepine and treatment options, such as physical therapy, epidural steroid injections, observation, and surgery. Lepine was instructed to contact Dr. Butter when he decided how he wished to proceed.

The record also contains medical records from the Neuroscience and Pain Institute, where Lepine was treated on January 3, 2012, after being referred by Dr. Serrant. There, he reported suffering from lower back pain, radiating down the left leg, which he stated began while he was working, pulling a cable out of a pond, on November 11, 2011, and had continually gotten worse over time, Dr. Jonathan Thompson at the Neuroscience and Pain Institute reviewed, Lepine’s MRI and diagnosed him with lumbar/thoracic radicu-lopathy, lumbar disc herniation and degeneration, lumbosacral spondylosis, and “long-term use of medications.” He recommended treating Lepine with epidural injections, and following up with physical therapy. He also continued Lepine on the same medications and asked him to follow up with him in one month. Dr. Thompson also opined that as of that date, January 3, 2012, Lepine could not work, due to his back pain and diagnoses.

IsAfter introducing the aforementioned medical records and his testimony, Lepine rested. The defendants then presented the testimony of Lepine’s co-worker, Michael Norton, and Lepine’s supervisor, James Bounds. Both of these men disputed Lepine’s account of pulling hundreds of yards of steel cable alone, They both testified that the most cable pulled up at one time is three to four feet, and that it would be a physical impossibility for any one person to manually pull up as much steel cable as claimed by Lepine. Furthermore, both men testified that they worked on a daily basis with Lepine, that neither of them ever witnessed Lepine have any kind of accident or exhibit any signs of having sustained any type of injury while working. Bounds specifically testified that Standard Gravel had an immediate reporting policy in place, where any work-related accident or incident must be immediately reported to one’s supervisor. Bounds further testified that Lepine had never reported to him the occurrence of any accident, incident, or the sustaining of any injury. He specifically denied that Lepine complained to him on December 7, 2011, of having suffered any cramps or any other type pain or injury while working. He stated that the only discussion he had with Lepine on that date was that he would have to lay him off due to a reduction in the work force. They also both testified that the first they ever heard of Lepine having been injured while at work was when they became aware that he was filing claims based thereon.

CONCLUSION

Based on the foregoing, which summarizes the totality of the evidence presented in support of Lepine’s claims, we cannot say the OWC erred in any way in. concluding that Lepine failed to bear his burden of proving, by a preponderance of the evidence, that a work-related accident occurred, much less, that such accident resulted in compensable injury. As noted by the OWC, the only evidence that any accident occurred was the self-serving testimony of the claimant himself. Moreover, Lepine’s account of events was directly contradicted by his co-worker and supervisor, whom, despite working in close proximity with Lepine on a daily basis, never witnessed any such accident or the activities in which Lepine claimed to be engaged when such accidents purportedly occurred. Additionally, the medical records also reveal that Lepine failed to report a work-related ] ¡¡accident that allegedly caused his injuries until the last treatment he sought, in January 2012. And, finally, despite being aware that all work-related accidents must be immediately reported and written up, Lepine failed to prove that he had followed company procedure by reporting the two alleged incidents, thus, leading to his lack of proof that any such accidents or incidents occurred.

Accordingly, the judgment of the OWC is hereby affirmed. Costs of this appeal are assessed to the plaintiff, Richard Le-pine.

AFFIRMED.

      . Although the claim form identifies the supervisor as James Bond, the remainder of the record establishes his correct identity as James Bounds.

      . In a subsequent report, Dr. Serrant indicates that at the December 21, 2011 visit, Lepine did attribute his injuries to a work-related incident.


text:
    STATE of Louisiana v. PROPERTY SEIZED FROM Nicholas T. MILLER $20,919.00 IN U.S. CURRENCY.
    No. 2013 CA 0715.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 27, 2013.

      Walter P. Reed, District Attorney, Jessica J. Brewster, Assistant District Attorney, Covington, LA, Kathryn Landry, Special Appeals Counsel, Baton Rouge, LA, Attorneys for Plaintiff-Appellee, State of Louisiana.
    R. Bradley Lewis, Bogalusa, LA, Attorney for Claimant-Appellant, Nicholas T. Miller.
    Before PETTIGREW, McDONALD, and McClendon, jj.
   PETTIGREW, J.

lain the instant appeal, claimant challenges the trial court’s November 26, 2012 judgment denying his request for attorney fees in connection with a judicial forfeiture proceeding. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

This litigation arises out of the seizure of currency by the Washington Parish Sheriffs Office on January 12, 2011. On March 17, 2011, the State of Louisiana, through the district attorney for the 22nd Judicial District Court, filed a petition in that court pursuant to the Seizure and Controlled Dangerous Substances Property Forfeiture Act of 1989, La. R.S. 40:2601, et seq., for an in rem forfeiture of $20,919.00 of U.S. currency that had been seized during the execution of a search warrant on the Hometown Food Market in Varnado, Louisiana. Nicholas T. Miller filed an answer to the petition on May 6, 2011, claiming ownership of the $20,919.00 and alleging that no illegal activity occurred that would give rise to the forfeiture of the seized funds. Thereafter, on June 12, 2012, Mr. Miller filed a motion for summary judgment, alleging that he was entitled to judgment as a matter of law because the evidence showed a “complete and total absence of factual support for the elements of the State’s claim that [he] engaged in conduct giving rise to forfeiture, and that the property is subject to forfeiture.”

The matter was set for hearing on June 28, 2012. At the hearing, before any argument was had on the motion for summary judgment, counsel for the State stipulated that it was willing to release the $20,919.00 that it had seized from Mr. Miller and pay court costs. However, counsel for the State was not willing to concede on the issue of attorney fees, but rather requested that the trial court set a hearing to determine whether the State should be required to pay same. The parties then agreed to argue the issue of attorney fees. After considering the evidence in the record and hearing the arguments from respective counsel, the trial court found that there were genuine issues of material fact concerning the award of attorney fees that precluded summary judgment. In a judgment rendered on July 24, 2012, the trial court denied Mr. Miller’s motion for summary judgment on the issue of attorney fees.

[.^Subsequently, on August 8, 2012, Mr. Miller filed a “Motion To Reconsider Court’s Ruling On Motion For Summary Judgment On Attorney’s Fee Issue,” along with a memorandum in support of same. Randy Seal, Sheriff of Washington Parish, filed an opposition to Mr. Miller’s motion for reconsideration, noting that he was an interested party directly affected by the relief sought by Mr. Miller. Arguing that Sheriff Seal was not a party to the suit and had never intervened into the suit, Mr. Miller filed a motion to strike Sheriff Seal’s opposition and the exhibits attached thereto. The motion for reconsideration and motion to strike proceeded to hearing before the trial court on October 15, 2012.

According to the transcript of the October 15, 2012 hearing, the trial court allowed Sheriff Seal to intervene over the objection of counsel for Mr. Miller. The parties then proceeded to argue the issue of attorney fees, after which the trial court rendered judgment from the bench in favor of the State. The trial court signed a judgment on November 26, 2012, denying Mr. Miller an award of attorney fees. It is from this judgment that Mr. Miller has appealed, assigning the following specifications of error:

1.The trial court erred in denying a successful claimant [attorney] fees instead of using the guidelines laid down by the Louisiana Supreme Court for district courts to determine the appropriate [attorney] fees in cases in which a court has discretion to award [attorney] fees.
2. The trial court erred in holding that La. R.S. 40:2615(D) was applicable to the issue of [attorney] fees.
3. Even assuming that La. R.S. 40:2615(D) is applicable to this case, the trial court erred in holding that there was reasonable cause for the seizure of the property and in applying this statute without determining that there was reasonable cause for forfeiture.
4. The trial court erred in allowing a third party to intervene in this case when the merits of the case had already been decided.

DENIAL OF ATTORNEY FEES

(Assignments of Error Nos. 1, 2, and 3)

In his first three assignments of error, Mr. Miller argues the trial court erred in denying his request for attorney fees in this forfeiture action. Mr. Miller asserts that the trial court should have used the guidelines set forth by the Louisiana Supreme Court in State, Dept, of Transp. and Development v. Williamson, 597 So.2d 439 (La.1992), |4in exercising its discretion to award attorney fees in this case. Mr. Miller further contends that the trial court erroneously relied upon La. R.S. 40:2615(D) in denying his request for attorney fees. Noting that this provision only addresses costs and damages, Mr. Miller maintains it cannot be used as a basis for denying his claim for attorney fees. Moreover, Mr. Miller argues that even assuming that La. R.S. 40:2615(D) is applicable to his case, he still prevails because the money in this case was seized without reasonable cause. In response, the State asserts that a finding of reasonable cause was not necessary to the denial of attorney fees pursuant to La. R.S. 40:2611(L), as that statute grants sole discretion to the trial court as to whether to award attorney fees. Nonetheless, the State maintains that the evidence clearly supported the discretion exercised herein by the trial court in denying attorney fees.

At the outset, we note that this matter was scheduled for hearing on a motion to reconsider the court’s prior ruling on the motion for summary judgment on the issue of attorney fees. Although the October 15, 2012 minute entry indicates “THE COURT DENIED THE MOTION TO RECONSIDER COURTS RULING ON MOTION FOR SUMMARY 1 JUDGMENT,” there is nothing in the transcript or in the written judgment that reflects such a ruling by the court. Rather, in the trial court’s November 26, 2012 judgment, which forms the basis for this appeal, the following language is found:

This case came before the Court for hearing on Monday, October 15, 2012, for a Motion to Reconsider Court’s Ruling on the Motion for Summary Judgment on [Attorney Fees], filed by claimant in this matter, Nicholas Miller, on or about August 22, 2012[.]
At this time, both the State and the claimant, Nicholas Miller, requested that this Honorable Court determine the issue of attorney fees without having to set this matter for trial.

Our review of the October 15, 2012 transcript reveals no such request by the parties to “determine the issue of attorney fees without having to set this matter for trial.” Nonetheless, neither party has raised this discrepancy as an issue on appeal. It is well settled that when there is a conflict between a minute entry and a written judgment, the latter governs; the trial court may, within its authority, render judgment that differs substantially from its prior oral statements, for such oral reasoning forms no part of the judgment, as it is the formal, signed judgment that governs the controversy. Norbhshore Capital Enterprises v. St. Tammany Hosp. Dist. No. 2, 2001-1606, p. 4 n. 3 (La.App. 1 Cir. 6/21/02), 822 So.2d 109, 112 n. 3, writ denied, 2002-2023 (La.11/1/02), 828 So.2d 584. Thus, the final November 26/2012 judgment is appropriate for appellate review.

Trial Court’s Ruling on the Attorney Fees Issue

After hearing argument on the issue of attorney fees, the trial court made the following observations from the bench:

I think that the evidence presented to Judge Knight, or to any of us, in an affidavit such as [the one in this case], would probably warrant us signing such warrants.
And upon their arrival there, [the State] found items that were alleged to have been there.
So I think there was probable cause. I think there was reasonable cause. I think [the] State acted within [its] power and I think [the] State returned the money to [Mr. Miller] prior to any hearing that was held.
| (¡Therefore, in an exercise of my discretion, I’m not going to award attorney’s fees.

The written judgment signed by the trial court on November 26, 2012, provided, in part:

After considering the law, arguments and exhibits filed by the claimant and the State of Louisiana in this matter, the Court finds that the law and evidence are in favor of the State of Louisiana and hereby denies claimant, Nicholas Miller, attorney fees. The Court denies attorney fees based on a finding that pursuant to [La.] R.S. 40:2615(D) there was reasonable cause for the seizure. Furthermore, pursuant to the language in [La.] R.S. 40:2615(L) the award of attorney fees is strictly discretionary with the Court and the Court hereby denies attorney fees pursuant to [La.] R.S. 40:2615(L).

Exercise of Trial Court’s Discretion Pursuant to La. R.S. 40:2611(L)

On appeal, Mr. Miller argues that pursuant to La. R.S. 40:2611(L), the only thing necessary for a claimant in a seizure and forfeiture proceeding to invoke the trial court’s discretion to award attorney fees is for the claimant to be successful in obtaining the return of his property. Interestingly, Mr. Miller cites no jurisprudence in support of his position. Rather, he simply contends that as he was successful in obtaining the return of his property, he is entitled to an award of attorney fees to be determined by the trial court based on the factors set forth in Williamson, supra.

In response, the State asserts there is some dispute as to whether Mr. Miller was “successful” in obtaining return of his property as the State stipulated to the return of the property prior to any hearing or judicial determination regarding same. Nonetheless, the State maintains “this issue is not dispositive, because the award of [attorney] fees is solely within the discretion of the trial court under the clear and unequivocal wording of [La. R.S. 40:2611(L) ].” The State further argues that in order to be successful in this appeal, Mr. Miller is required to prove an abuse of discretion by the trial court in its ruling. We agree with the State.

|7As previously noted, La. R.S. 40:2611(L) provides that if a claimant whose property has been seized for forfeiture is successful in obtaining the return of the property in a civil proceeding, the court may award the claimant reasonable attorney fees, to be paid by the seizing agency. See Woods v. Department of Public Safety, Office of the State Police, 2009-1592, p. 5 (La.App. 1 Cir. 4/30/10), 38 So.3d 1000, 1003 (a claim for attorney fees by a person who has been successful in obtaining the return of his/her property may be considered, and attorney fees may be awarded, at the discretion of the court hearing the forfeiture action). The statute uses the word “may” as opposed to “shall.” Pursuant to the rules of statutory construction, “[t]he word ‘shall’ is mandatory and the word ‘may’ is permissive.” La. R.S. 1:8. Thus, under the clear language of La. R.S. 40:2611(L), the trial court’s decision to award attorney fees is purely discretionary. Moreover, although no finding of reasonable cause was required in order to deny Mr. Miller’s request for attorney fees, the record certainly supports the trial court’s conclusion that there was reasonable cause for the seizure. We have thoroughly reviewed the record before us and find that the trial court acted within its discretion in denying Mr. Miller’s request for attorney fees herein. Mr. Miller has shown no abuse of discretion by the trial court in its ruling.

Applicability of La. R.S. 40:2615(D)

Mr. Miller asserts that the trial court’s reliance on La. R.S. 40:2615(D) was an error of law because the statute has nothing to do with attorney fees and because the district attorney did not bring a motion before the court to show that Mr. Miller was not entitled to costs or damages. We find no merit to this argument.

At the initial motion for summary judgment hearing on June 28, 2012, the applicability of La. R.S. 40:2615(D) was addressed during arguments before the trial court in the context of what evidence should be allowed into the record for the trial court’s consideration on the issue of attorney fees. When pressed about the evidence being introduced, counsel for the State stated as follows:

Your Honor, based on 40:2615, that’s Subsection D, upon the motion by the district attorney, which is here today about attorney’s fees, if it appears at a hearing that there was reasonable cause. So the State is |strying to establish reasonable cause at this hearing to show that he is not entitled to costs or damages in this suit and that the Washington Parish Sheriffs Department nor the State of Louisiana can be held liable. That’s the grounds for the State arguing and submitting this evidence.

Thus, it is clear that a motion was made in open court for a determination of whether there was reasonable cause for the seizure such that the seizing agency could not be held “liable to suit or judgment on account of the seizure, suit or prosecution” under La. R.S. 40:2615(D). Accordingly, although a finding of reasonable cause may not have been necessary to the trial court’s exercise of its discretion in denying attorney fees in this case, there was no error by the trial court in considering same. Moreover, the overwhelming evidence in the record clearly supports the trial court’s finding that the seizure was based on reasonable cause.

SHERIFF SEAL’S INTERVENTION

(Assignment of Error No. 4)

Arguing that the trial court erred in allowing Sheriff Seal to intervene in this matter after the merits of the case had been decided, Mr. Miller maintains that this court should “correct this error.” In response, the State argues that although it had stipulated to the return of the seized property to Mr. Miller, the issue of attorney fees remained pending before the trial court at the time of the intervention, and accordingly, the intervention was proper and timely.

At the start of the October 15, 2012 hearing, the following colloquy occurred regarding Sheriff Seal’s participation in the proceedings:

[COUNSEL FOR SHERIFF SEAL]:
If I may file a motion prior to argument, Your Honor. I have a Motion to Intervene on behalf of Sheriff Seal, which I’d like to file for The Court to take- into consideration in connection with [the Motion to Strike].
THE COURT:
All right.
[COUNSEL FOR MR. MILLER]:
Your Honor, I—
THE COURT:
I’ll let you intervene, for what that’s worth. Go ahead.
[COUNSEL FOR MR. MILLER]:
Your Honor, I haven’t even seen a Motion to Intervene.
LTHE COURT:
Right. I understand.
[COUNSEL FOR MR. MILLER]:
And I think the position I’ve outlined in my Motion to Strike is accurate.
This is a lawsuit for The State of Louisiana and the property that was seized from Nick Miller.
And there were no other parties. And I don’t think it’s proper for a non-party to submit a memorandum in opposition and I think it’s—
THE COURT:
It’s kind of an amicus.
[COUNSEL FOR SHERIFF SEAL]:
Well, it is in a sense, Your Honor. But, also, since it, potentially, is the Sheriff whose corpus is at stake here— THE COURT:
Right.
[COUNSEL FOR SHERIFF SEAL]:
—financially, if nothing else, on the premises of due process, he ought to have the opportunity to be heard if there’s going to, potentially, be a judgment rendered against him, as [counsel for Mr. Miller] seeks.
THE COURT:
All right. I’ll let you intervene. As I said, it’s kind of extraneous to what we’re dealing with here.

We find that Sheriff Seal clearly had an interest in this proceeding as La. R.S. 40:2611(L) provides that if attorney fees are awarded, payment is made by the seizing agency, which in this case was the Washington Parish Sheriffs Office. See La.Code Civ. P. art. 1091. Accordingly, we find no merit to Mr. Miller’s argument to the contrary. However, we note that although the trial court stated in open court that the intervention was being allowed and the minutes from the October 15, 2012 hearing, confirm same, there is nothing in the record to indicate that Sheriff Seal ever actually filed a petition for intervention in this matter. Nonetheless, as we have found no error in the trial court’s ruling denying an award of attorney fees in favor of Mr. Miller and affirm the judgment below, we find this to be a moot issue.

| ^CONCLUSION

For the above and foregoing reasons, we affirm the trial court’s November 26, 2012 judgment. All costs associated with this appeal are assessed against claimant-appellant, Nicholas T. Miller.

AFFIRMED.

McCLENDON, J. concurs w/in result reached by the majority.

      . In 'Williamson, the Louisiana Supreme Court merely set forth factors to be taken into consideration in determining the reasonableness of attorney fees. The court noted as follows:
      Factors to be taken into consideration in determining the reasonableness of attorney fees include: (1) the ultimate result obtained; (2) the responsibility incurred; (3) the importance of the litigation; (4) amount of money involved; (5) extent and character of the work performed; (6) legal knowledge, attainment, and skill of the attorneys; (7) number of appearances made; (8) intricacies of the facts involved; (9) diligence and skill of counsel; and (10) the court’s own knowledge.

        'Williamson, 597 So.2d at 442.

      . Louisiana Revised Statutes 40:2615(D) provides as follows:
      Upon motion by the district attorney, if it appears after a hearing that there was reasonable cause for the seizure for forfeiture or for the filing of the Notice of Pending Forfeiture or petition, the court shall cause a finding to be entered that reasonable cause existed, and the claimant is not entitled to costs or damages, and the person or seizing agency who made the seizure, and the district attorney, are not liable to suit or judgment on account of the seizure, suit or prosecution.

      . Louisiana Revised Statutes 40:2611(L) provides, in pertinent part, as follows:
      If a claimant whose property has been seized for forfeiture is successful in obtaining the return of the property in a civil proceeding, the court may award the claimant reasonable attorney fees, to be paid by the seizing agency, and the claimant shall also be exempt from any storage fees, or other costs incurred in the seizure, preservation, storage, or return of such seized property. [Emphasis added.]

      . It is clear from our review of the record and as argued by the State in brief to this court, that the trial court's references to La. R.S. 40:2615(L) are merely typographical errors. The only applicable statute that addresses the trial court's discretion with respect to an award of attorney fees is La. R.S. 40:2611(L). Moreover, there is no subsection (L) in La. R.S. 40:2615 as is referenced in the trial court’s judgment.

      . The October 15, 2012 hearing minutes indicate as follows with regard to the intervention: ‘‘[COUNSEL FOR SHERIFF SEAL] INTERVENED IN OPEN COURT, THE COURT GRANTED THE INTERVENTION.”


author: THERIOT, J.

text:
    Gina Riviere BUSH v. Randall Todd BUSH.
    No. 2013 CU 0922.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 27, 2013.

      Georgia K. Thomas, Glen R. Galbraith, Hammond, Louisiana, for Plaintiff/Appellant Gina Leigh Riviere.
    Jenel G. Secrease, Ponchatoula, Louisiana, for Defendant-Appellee Randall Todd Bush.
    Before KUHN, HIGGINBOTHAM, and THERIOT, JJ.
   THERIOT, J.

12Gina Riviere Bush appeals the ruling of the Twenty-First Judicial District Court denying her relocation with her two minor children from Ponchatoula, Louisiana to Slidell, Louisiana. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Randall Todd Bush and Gina Riviere Bush were married on July 30, 1988 in Tangipahoa Parish. Two daughters were born of said marriage. On March 15, 2010, Ms. Bush filed for divorce pursuant to La. C.C. art. 102. The parties entered into a consent judgment in which they agreed to share “50/50” custody of the children with eo-domiciliary status. The judgment of divorce was filed into the record on June 27, 2011.

On September 26, 2011, Ms. Bush filed a motion to modify custody and sought a temporary restraining order against Mr. Bush. She requested that the shared custody change to joint custody, with Ms. Bush designated as the domiciliary parent. On October 31, 2011, Mr. Bush filed a rule to modify custody, in which he also claimed that the shared custody arrangement had proven difficult to maintain, and requested that the custody be reverted to joint, with Mr. Bush as the domiciliary parent.

Judgment was rendered on November 30, 2011, in which the trial court ordered joint custody of the children with Ms. Bush designated as the domiciliary parent. Mr. Bush was granted reasonable visitation on every other weekend. The trial court also ordered that the children “shall remain at the schools they are now attending, and shall remain in Tangipahoa Parish.”

On January 12, 2012, Ms. Bush filed a rule to modify child support and spousal support, in which she additionally requested that the trial court hallow her to move with the minor children from Ponchatoula, Louisiana in Tangipahoa Parish to Slidell, Louisiana in St. Tammany Parish, where they would live with Ms. Bush’s parents. She asked the trial court to reconsider its previous order to keep the children in Tangipahoa Parish, citing her financial difficulties of living in Ponchatoula would be alleviated if she could move in with her parents in Slidell.

Mr. Bush filed an opposition to the motion in which he claimed a relocation of the children from their family and friends was not in the children’s best interest. The trial court issued a judgment on March 28, 2012, ordering Ms. Bush not to move from Tangipahoa Parish with the children. On May 4, 2012, Mr. Bush filed a rule to modify custody asking the trial court that he be designated as the domiciliary parent. Ms. Bush filed an opposition to the rule. On September 20, 2012, the trial court signed a judgment denying Mr. Bush’s rule to modify custody and ordered both parents to attend co-parenting counseling.

On December 6, 2012, Mr. Bush filed a motion for injunctions and contempt against Ms. Bush alleging that Ms. Bush was making efforts to move with the children to Slidell. In light of Ms. Bush’s actions, Mr. Bush again requested the trial court designate him as the domiciliary parent in the event that Ms. Bush moved to Slidell. Ms. Bush filed a motion in opposition and a rule to show cause regarding relocation on January 8, 2013. The trial court granted Mr. Bush’s motion on April 3, 2013, enjoining Ms. Bush from moving the children out of Tangipahoa Parish, and the trial court further ordered that Ms. Bush remain the domiciliary parent. Ms. Bush filed the instant appeal.

I .ASSIGNMENTS OF ERROR

Ms. Bush cites as error: 1) that the trial court abused its discretion in conducting a relocation hearing when she, as domiciliary parent, is engaging in an intrastate move of fifty miles from Ponchatoula, Louisiana to Slidell, Louisiana, since that distance is well below the 75-mile threshold under La. R.S. 9:355.2(B); 2) that the trial court abused its discretion in issuing an injunction preventing her, the domiciliary parent, from moving the children from Ponchatou-la to Slidell; and 3) that the trial court abused its discretion when it failed to conduct a Bergeron hearing wherein Mr. Bush, the non-domiciliary parent who had visitation every other weekend, was required to show cause that there had been a change of circumstances that was deleterious to the children in order to modify the earlier considered decree regarding custody.

STANDARD OF REVIEW

The relocating parent has the burden of proving that the proposed relocation is made in good faith and in the best interest of the child. Richardson v. Richardson, 2001-0777, p. 5 (La.App. 1 Cir. 9/28/01), 802 So.2d 726, 729, writ denied, 2001-2884 (La.11/16/01), 802 So.2d 618. In determining the child’s best interest, the court shall consider the benefits which the child will derive either directly or indirectly from an enhancement in the relocating parent’s general quality of life. Gathen v. Gathen, 2010-2312, p. 8 (La.5/10/11), 66 So.3d 1, 6.

The factors a court must consider in determining the child’s best interest are found in La. R.S. 9:355.14. Although there are twelve factors for the court to consider, it is not necessary for the court to expressly analyze each factor in its oral or written reasons for judgment in a relocation case. | ¡¡Gathen, 66 So.3d at 9. As an appellate court, we cannot set aside the trial court’s factual findings unless we determine that there is no reasonable factual basis for the findings and the findings are clearly wrong. Major v. Major, 2002-2131, p. 4-5 (La.App. 1 Cir. 2/14/03), 849 So.2d.547, 550.

DISCUSSION

Assignment of Error No. 1

Ms. Bush argues that the trial court should not have made any ruling regarding her relocation with the children since La. R.S. 9:355.2(B)(3) restricts relocation orders to distances over 75 miles. While Ponchatoula and Slidell are less than 75 miles apart and both are located ■within the state of Louisiana, we disagree that those facts alone prevent a court from determining whether a relocation of the children would be in their best interest.

Despite the trial court’s direct orders and its issuance of an injunction, Ms. Bush persisted in her intention to move to Sli-dell with her children. While La. R.S. 9:355 et seq. establish guidelines for relocation, the statutes are not to overrule a trial court’s existing custody order governing relocation of a child. See La. R.S. 9:355.2(C).

The trial court clearly stated on more than one occasion that it did not want the children domiciled outside of Tangipahoa Parish. When a court order clearly contains restrictions on relocation such that the will of the court is unequivocal, absent an abuse of discretion, the court order must supersede the applicability limitations of La. R.S. 9:355.2(B). See La. R.S. 9:355.2(C). This assignment of error lacks merit.

| Cr Assignment of Error No, 2

The trial court did not abuse its discretion in issuing the injunction that prohibited Ms. Bush from removing the children from Tangipahoa Parish. Although the trial court did not enumerate the twelve factors of La.R.S. 9:355.14; it is clear from the oral reasons that many of the twelve factors were considered. The trial court placed great weight on how the relocation would affect the quality of life of the children:

[J]ust from human life experience that moving from a school that you’ve been in and a school that has an excellent reputation in [Tangipahoa Parish] is going to be hard on these children on top of everything else.... [T]hey go after school back over forty miles to Slidell, and, you know, what do they do as far as sports aetivities[?] You’re putting a hardship on the children to do that, and I’m not going to allow it.

Based on factors 1, 2, 3, and 6, the trial court found that relocation would be detrimental to the children’s educational, social, and familial development. The trial court also addressed the financial burdens of the parents:

I know that ... there have been financial issues for both parties.... I am not unsympathetic to the financial situation that you’re in, Ms. [Bush] but I have to balance all of these things together, and I don’t see that, with the exception of eliminating your own personal living expenses by being able to move in with your parents, that that over weighs [sic] the rulings I previously made where I have to balance the interest and the rights of both parents and hopefully be able to accomplish that in the best interest of the children.

|7Based on factors 7 and 8, the trial court weighed the financial needs of both parents against the best interests of the children and found that Ms. Bush’s need to move in with her parents for financial reasons was not a strong enough factor to require the children to also move to Slidell, as it would have upset the stability of the children’s fives.

The trial court also observed that communication between Mr. Bush and Ms. Bush had been improving and concluded that relocation would upset their communication once again. Since their strained communication had proven to convolute the custody arrangements in the past, the trial court decided based on factor 12 that good communication between the parents was essential to the children’s good quality of fife. Based upon our review of the entire record, we do not find that the trial court abused its discretion with its ruling. This assignment of error lacks merit.

Assignment of Error No. 3

Ms. Bush further argues that the Ber-geron case places the burden upon Mr. Bush to prove a change in circumstances that are deleterious to the wellbeing of the children, since he was seeking to change the present custody order, but that the court erroneously placed the burden of proof upon her. See Bergeron v. Bergeron, 492 So.2d 1193 (La.1986). We disagree with Ms. Bush’s interpretation of Bergeron as it relates to her circumstance.

Because of her proposed move to Slidell, Ms. Bush would effect a greater change of circumstances upon the children than would Mr. Bush, who argues the children should remain in Ponchatoula, Louisiana. Pursuant to La. R.S. 9:355.10, the person proposing relocation has the burden of proof | ¿that the proposed relocation is made in good faith and is in the best interest of the child. See Curole v. Curole, 2002-1891, p. 5-6 (La.10/15/02) 828 So.2d 1094, 1096. The trial court heard the evidence of both parties and concluded that the proposed relocation was not in the best interest of the children. That determination is entitled great weight and will not be overturned absent a clear abuse of discretion, Gathen, 66 So.3d at 8. This assignment of error lacks merit.

CONCLUSION

The trial court did not abuse its discretion in determining that Ms. Bush’s proposed relocation to Slidell with the children was not in the best interest of the children. Since the court had specifically ordered that the children were not to move from their residence and schools in Tangi-pahoa Parish, and it is evident that the order was made pursuant to factors set out by La. R.S. 9:355.14, it is effective despite the fact that the move would be less than 75 miles and otherwise not a relocation according to La. R.S. 9:355:2(B).

DECREE

The judgment by the trial court to deny the relocation of Ms. Gina Riviere Bush with her minor children from. Ponchatou-la, Louisiana to Slidell, Louisiana is affirmed. All costs of this appeal are ás-sessed to Ms. Bush.

AFFIRMED.

JEK concurs with reasons by THERIOT.

HIGGINBOTHAM, J., concurs.

      . Both daughters were minors on the date of this opinion.

      . Bergeron v. Bergeron, 492 So.2d 1193 (La.1986).

      . La. R.S. 9:355.2(C) states as follows: "To the extent that this Subpart conflicts with an existing custody order, this Subpart shall not apply to the terms of that order that govern relocation.”

      . These factors of La. R.S. 9:355.14 are as follows:
      1.The nature, quality, extent of involvement, and duration of the relationship of the child with the person proposing relocation and with the non-relocating person, siblings, and other significant persons in the child’s life.
      2. The age, developmental stage, needs of the child, and the likely impact the relocation will have on the child's physical, educational, and emotional development.
      3. The feasibility of preserving a good relationship between the non-relocating person and the child through suitable physical custody or visitation arrangements, considering the logistics and financial circumstances of the parties.
      6. How relocation of the child will affect the general quality of life for the child, including but not limited to financial or emotional benefit and educational opportunity.

      .These factors of La. R.S. 9:355.14 are as follows:
      7. The reasons of each person for seeking or opposing the relocation.
      8. The current employment and economic circumstances of each person and how the proposed relocation may affect the circumstances of the child.

      . This factor of La. R.S. 9:355.14 is as follows:
      12. Any other factors affecting the best interest of the child.

      . La. R.S. 9:355.10 became effective August 1, 2012, in Acts 2012, No. 627, Section 1. Prior to the effective date, the language of La. R.S. 9:355.10 was located in La. R.S. 9:355.13.