author: GENOVESE, Judge.

text:
    CATAHOULA PARISH SCHOOL BOARD, Catahoula Parish Police Jury v. LOUISIANA MACHINERY RENTALS, LLC. Catahoula Parish School Board, Catahoula Parish Police Jury v. Louisiana Machinery Company, LLC.
    Nos. 12-443, 12-444.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 24, 2012.
    Rehearing Denied Dec. 19, 2012.

      Jesse R. Adams, III, Kathryn S. Friel, Andre Brian Burvant, Matthew A. Mantle, Jones, Walker, Waechter, Poitevent, Car-rére & Denegre, L.L.P., New Orleans, LA, for Defendants/Appellants, Louisiana Machinery Rentals, LLC and Louisiana Machinery Company, LLC.
    Jack Hendrix McLemore, Jr., Vidalia, LA, Robert R. Rainer, Drew M. Talbot, Rainer, Anding & McLindon, Baton Rouge, LA, for Plaintiffs/Appellees, Cata-houla Parish School Board and Catahoula Parish Police Jury.
    Court composed of JOHN D. SAUNDERS, ELIZABETH A. PICKETT, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

Lin these consolidated sales and use tax cases, Defendants, Louisiana Machinery Rentals, LLC, and Louisiana Machinery Company, LLC (collectively the Companies), appeal partial summary judgments enforcing the assessment of the taxing authorities, Plaintiffs, Catahoula Parish School Board and the Catahoula Parish Police Jury. Plaintiffs have answered the appeals, seeking sanctions against the Companies for filing frivolous appeals. For the reasons that follow, we reverse the trial court’s grant of the partial summary judgments; we deny the claims for damages for frivolous appeals; and, we remand these matters to the trial court for further proceedings.

FACTS AND PROCEDURAL HISTORY

The Companies, Louisiana’s exclusive Caterpillar franchise dealers, sold, leased, and repaired Caterpillar equipment and machinery in Catahoula Parish. The Ca-tahoula Parish School Board and the Cata-houla Parish Police Jury designated the Concordia Parish School Board (the Collector) as their sales and use tax collector.

The Collector commissioned a private auditing firm to perform an audit of the Companies which revealed deficiencies for the period December 1, 2000, through June 30, 2007. The Collector, thereafter, initiated the collection process on November 24, 2009, by sending each of the Companies a Notice of Intent to Assess additional taxes, penalties, and interest in accordance with La.R.S. 47:337.4s. The Companies neither protested the Notice of Intent to Assess, nor did they request a hearing.

|2The Collector then issued each of the Companies a formal Notice of Assessment (also referred to as the Original Assessments) on December 24, 2009, allegedly in accordance with La.R.S. 47:337.51 in effect in 2009 before the 2010 amendment to subsections A and B. Upon receipt of the notice, the Companies |sdid not pay the assessment, respond in protest, or request a hearing. Instead, the Companies provided additional tax records to the auditors that they had previously withheld.

The Collector reviewed the additional audit documentation and subsequently affirmed its findings. On February 22, 2010, the Collector reissued a second formal Notice of Assessment-Extension (sometimes referred to as the First Revised Assessments) to the Companies in accordance with La.R.S. 47:337.51. The First Revised Assessments extended additional time to the Companies to raise either factual or legal objections. They did not do so. After receiving the First Revised Assessments, the Companies again submitted additional records to the auditors. After the auditors reviewed this newly supplied information, the assessments were substantially reduced. The Collector then issued a third formal Notice of Assessment-Extension (sometimes referred to as the Second Revised Assessments) to the Companies on April 26, 2010. The Companies did not respond to the Second Revised Assessments. ^Consequently, on September 27, 2010, the Collector instituted the present proceedings by filing a Rule for Payment of Sales Tax against each of the Companies for payment of taxes, penalties, interest, and attorney fees pursuant to La. R.S. 47:337.61.

|fiThe Companies responded to these proceedings by filing exceptions, affirmative defenses, and answers to each Rule for Payment of Sales Tax. Thereafter, and with leave of court, the Collector filed a Supplemental and Amending Petition for Rule to Show Cause in Summary Sales and Use Tax Proceeding in each proceeding. In addition, the Collector filed exceptions of lack of subject matter jurisdiction and exceptions of preemption in response to the Companies’ exceptions, affirmative defenses, and answers. The Collector also filed motions for partial summary judgment. Responding to the supplemental petitions, the Companies again raised exceptions, affirmative defenses, and filed answers thereto.

On January 5, 2012, the trial court held a hearing only on the motions for partial summary judgment. Based upon its determination that the April 26, 2010 Second Revised Assessments were final, the trial court granted partial summary judgments against each Company in favor of the Collector. The Companies appealed their respective judgments, and the Collector answered the appeals, seeking sanctions for frivolous appeals. These matters were consolidated by this court on appeal.

ASSIGNMENTS OF ERROR

On appeal, the Companies assign four errors by the trial court. They first assert that the trial court erred in failing to find that the Notice of Assessment-Extensions did not comply with La.R.S. 47:337.51(A), thereby making said notices invalid and void. The Companies next assert that the trial court erred in concluding that the requirements of La.R.S. 47:337.51(A) need not have been specifically enumerated in these cases since the taxpayers were large companies. The Companies further assert that the trial court erred in failing to find that the claims for taxes had prescribed prior to the issuance of the Notice of As-sessmentHExtensions.fi Finally, they contend that the trial court erred in granting the motions for partial summary judgment because the affidavits filed in support thereof were not based on personal knowledge and that genuine issues of material fact as to the amount of taxes owed by the Companies remain in dispute.

LAW AND DISCUSSION

STANDARD OF REVIEW

Our Louisiana Supreme Court has instructed us on the standard of review relative to a motion for summary judgment as follows:

A motion for summary judgment is a procedural device used when there is no genuine issue of material fact for all or part of the relief prayed for by a litigant. Duncan v. U.S.A.A. Ins. Co., [06-363 (La.11/29/06)], 950 So.2d 544, [see La.Code Civ.P.] art. 966. A summary judgment is reviewed on appeal de novo, with the appellate court using the same criteria that govern the trial court’s determination of whether summary judgment is appropriate; i.e. whether there is any genuine issue of material fact, and whether the movant is entitled to judgment as a matter of law. Wright v. Louisiana Power & Light, [06-1181 (La.3/9/07)], 951 So.2d 1058[]; King v. Parish National Bank, [04-337 (La.10/19/04)], 885 So.2d 540, 545; Jones v. Estate of Santiago, [03-1424 (La.4/14/04)], 870 So.2d 1002[.]
Samaba v. Rau, 07-1726, pp. 3-4 (La.2/26/08), 977 So.2d 880, 882-83 (footnote omitted).

Jagneaux v. Frohn, 11-461, p. 2 (La.App. 3 Cir. 10/5/11), 74 So.3d 309, 310.

ASSIGNMENTS OF ERROR NUMBERS ONE &

TWO

Louisiana Revised Statutes 47:337.5— Notice

In these combined assignments of error, the Companies essentially allege that the trial court erred in finding that the Collector’s notices (in globo) failed to comply with La.R.S. 47:337.51(A) and were, therefore, invalid and void. The notice in question is as follows:

NOTICE: As provided in LA R.S. 47:337.51 B, if you wish to protest, you have thirty (30) days from the date hereof to file with this office a written protest, signed by you or your duly authorized agent, which shall be under oath, fully disclosing the reasons therefor, and request a hearing.
|7If you do not timely file a written protest and request a hearing, you have sixty (60) calendar days from the date hereof to:
1) Pay the amount set forth herein above,
2) Pay the total amount set forth herein above under protest as provided in LA R.S. 47:337.63 and file suit for recovery within thirty (30) days of payment, or
3) Within thirty (30) days of receipt of this Notice of Assessment, file suit in any state court of competent jurisdiction contesting the final assessment, and in connection therewith, post a commercial bond or other security as provided in LA R.S. 47:337.64 in accordance with the procedures set forth therein.

Do not disregard this notice, failure to act within the time or manner provided will result in the assessment becoming final and enforceable by warrant for distraint. Additional penalties, interest and collection fees may be assessed at that time.

Any questions concerning this notice may be directed to the undersigned representative.

Respectfully,

Department of Revenue & Taxation Sales and Use Tax Division Parishes of Concordia, Catahoula, Caldwell,

East Carroll, LaSalle and Tensas

BY: [Original Signed]

Thomas H. O’Neal

IMPORTANT: The collector may, in his discretion, proceed to enforce the collection of any taxes due by means of any of the following remedies or procedures: (1) Assessment and distraint, as provided by R.S. 47:337.48 through 337.60, (2) Summary court proceeding, as provided in R.S. 47:337.61, (3) Ordinary suit under provisions of the general laws regulating actions for the enforcement of obligations, (4) Rule to cease business as provided in R.S. 47:337.33. The Collector by issuing this Notice does not waive the right to assert such other remedies.

Our brethren in the second circuit squarely addressed the issue of the validity of the same Notice and Assessment(s) pursuant to La.R.S. 47:337.51 in the case of Caldwell Parish School Board v. Louisiana Machinery Co., LLC, 47,349, 47,350 (La.App. 2 Cir. 5/16/12), 94 So.3d 144. In Caldwell, the second circuit found the same notices to be statutorily and substantially deficient in that they did not specifically give notice to the taxpayers that they had sixty days from the date of the notices to request a hearing on the matter. We agree.

We are, however, mindful of the fact that there are a number of other tax cases involving Louisiana Machinery Rentals, LLC and/or Louisiana Machinery Company, LLC in a number of parishes and judicial districts concerning La.R.S. 47:337.51 (Sec. 51) and La.R.S. 47:337.61 (Sec. 61). Some of these cases have | Rbeen decided in favor of the tax collector; some have been decided in favor of the taxpayer; and, several are presently before our supreme court on supervisory writs.

Of particular interest, we note this court’s recent decision in Jefferson Davis Parish School Board, ex rel. Sales/Use Tax Dep’t v. Louisiana Machinery Rentals, LLC, 11-510, 11-512 (LaApp. 3 Cir. 10/5/11), 74 So.3d 1272, unit denied, 11-2437 (La.1/13/12), 77 So.3d 972, wherein we held that the Jefferson Davis Parish School Board properly followed the procedure outlined in Sec. 51; however, the issue of proper notice was neither argued nor assigned as error in the Jefferson Davis case. Therefore, that case is readily distinguishable and neither persuasive nor controlling.

We are also cognizant of this court’s recent decisions in LaSalle Parish School Board v. Louisiana Machinery Rentals, LLC, 12-259 (La.App. 3 Cir. 6/6/12), 92 So.3d 1232, and LaSalle Parish School Board v. Louisiana Machinery Co., LLC, 12-276 (La.App. 3 Cir. 6/6/12), 92 So.3d 1238 (collectively referred to herein as La-Salle). We likewise distinguish LaSalle as it relied on Normand v. Randazzo, 11-308 (La.App. 5 Cir. 12/28/11), 85 So.3d 707, writ denied, 12-285 (La.4/9/12), 85 So.3d 697. LaSalle differs from Normand. In Normand, the summary proceeding was brought as an alternative to the assessment procedure. In the instant case and in LaSalle, the summary proceedings were entirely premised and dependent upon the alleged finality of the assessments. Additionally, in Normand, contrary to LaSalle, there was a hearing in the summary proceeding wherein testimony was presented and documentary evidence was introduced on the merits of the tax collector’s claims. In LaSalle, the taxpayers were precluded from presenting any evidence on the assessment or raising any defenses. Due to the significant inconsistency and distinguishing factors in LaSalle and Normand, we 1 flelect to follow Normand as the more accurate statement of the law relative to the requirements of Sections 51 and 61.

Louisiana Revised Statutes 47:337.51(AXprior to January 1, 2011)(em-phasis added) specifically states that, “This notice shall inform the taxpayer of the assessment and that he has sixty calendar days from the date of the notice to (a) pay the amount of the assessment; (b) request a hearing with the collector; or (c) pay under protest....” The statute reads “shall[,]” and it requires that the notice inform the taxpayer that he has sixty days to request a hearing.

The notice in the instant case does not state that the taxpayer has sixty days to request a hearing. The notice states that the taxpayer has sixty days to pay the amount set forth therein, pay the amount therein under protest, or file suit within thirty days of receipt of the notice. It does not state anywhere in the notice, as mandated by the statute, that the taxpayer has sixty days to request a hearing.

After thoroughly reviewing the facts in the instant case, and considering the jurisprudence pertaining to the notice requirements of La.R.S. 47:337.51(A) prior to January 1, 2011, we find the notice in the instant case to be deficient and the assessment invalid due to its failure to state that the taxpayer has sixty days from the date of the notice to request a hearing as mandated by the statute. As such, the written notice given in the instant case does not comply with La.R.S. 47:337.51(A) and does not have the preclusive and legal effect of denying the Companies the right to present their defenses in response to the Collector’s claims, even in a summary proceeding.

Louisiana Revised Statutes 47:337.61

The fact that we find the notice deficient and the assessment invalid under Sec. 51 does not conclude this matter. The Collector still has the option to proceed with summary proceedings in accordance with Sec. 61, which it did.

| ipThe Uniform Local Sales Tax Code (ULSTC), La.R.S. 47:337.1, et seq., is the law which governs the local collection and enforcement of sales and use taxes. Louisiana Revised Statutes 47:337.45 allows the Collector three options “to enforce the collection of any taxes due under the local ordinance”: assessment and distraint (Sec. 51); summary court proceedings (Sec. 61); or ordinary suit for the enforcement of obligations. There is also an alternative procedure under La.R.S. 47:337.88 which allows the Collector to pursue an injunction. Because the Collector did not seek an injunction and did not file an ordinary suit for enforcement of the obligation, these remedies are not at issue and need not be addressed.

In the instant case, the Collector began its sales and use tax collection proceedings by assessment and distraint in accordance with Sec. 51, which requires a valid notice as previously discussed. Later on in the proceedings, the Collector filed supplemental and amending pleadings in order to pursue its claims in a Insummary proceeding in accordance with Sec. 61, which it was legally entitled to do. Thereafter, the Collector filed motions for partial summary judgment within the summary proceedings and attached its supporting documentation and affidavits in accordance with the provisions of Sec. 61.

Louisiana Revised Statutes 47:337.61(2) specifically allows for defenses to be presented in the summary proceedings. It is undisputed that the Companies presented defenses, including its exception of prescription, which were disallowed by the trial court. In fact, the trial court specifically stated in its ruling “that each of these assessments are final and that the defendant’s [sic] [are] precluded from attacking them.” The trial court erred in ruling that the Companies could not attack the assessments and present defenses, which is contrary to the provisions of See. 61(2). In Tensas Parish School Board v. Louisiana Machinery Co., LLC, 47,516, 47,517 (La.App. 2 Cir. 6/29/12), 94 So.3d 1039, on this same issue and set of facts, the second circuit reversed the trial court’s grant of partial summary judgments, finding that the taxpayers are allowed to present defenses under Sec. 61. We agree.

In summary, Sec. 51 and Sec. 61 are two separate and distinct remedies available to the Collector in pursuit of its collection of sales and use taxes under La.R.S. 47:337.1, et seq. Either may be implemented.

In the instant case, the Collector began in Sec. 51 and ended in Sec. 61. Had this court not held the Collector’s Sec. 51 Notice of Assessment to have been defective in its failure to apprise the Companies of their right to request a hearing within sixty days of the notice, the assessment would have been valid and final after that sixty day period, since no action was taken during that time period, and |12the Companies would have been precluded from raising any defenses. However, such was not the case. The Collector’s Notice of Assessment was statutorily deficient and defective; therefore, the Collector’s claim that the assessment was final and definitive and that the Companies were precluded from challenging same by prescription or otherwise is erroneous and without merit.

The Collector’s alternative attempt to proceed with summary proceedings under Sec. 61, though legally permissible, is tainted and thwarted by the trial court’s refusal to allow the Companies to present its defenses to the Collector’s claims, which the statute specifically permits. Consequently, the trial court’s grant of the Collector’s motions for partial summary judgment must be reversed and the matter remanded for further proceedings consistent herewith.

ASSIGNMENT OF ERROR NUMBER THREE

Prescription

In this assignment of error, the Companies allege that the trial court erred in not finding the Collector’s claim for taxes to have been prescribed. Whether the Collector’s claim for taxes had prescribed was neither addressed nor ruled upon by the trial court. The trial court did not consider this issue since it disallowed any and all defenses, including the exception of prescription, presented by the Companies. Having reversed the trial court’s ruling that the Collector’s Notice of Assessment under Sec. 51 was valid and having found that the Companies are legally permitted under Sec. 61 to assert defenses to the Collector’s claims, we remand this matter to the trial court for consideration and ruling upon the defenses, including the exception of prescription, asserted by the Companies.

ASSIGNMENT OF ERROR NUMBER FOUR

The Companies allege that the trial court erred in granting the Collector’s motions for partial summary judgment in that the supporting affidavits were not | isbased on personal knowledge and that genuine issues of material fact existed as to the amount of tax owed by them. We agree.

In order to respond to this assignment of error, we must first differentiate between a summary judgment proceeding and summary proceedings. They are not one and the same.

In the instant case, the Collector filed motions for partial summary judgment within the summary proceedings provided for in Sec. '61. However, the rules for summary judgment are different from the rules set forth in the summary proceedings allowed in Sec. 61. Specifically, the evi-dentiary rules in a summary judgment proceeding are strict and definitive. Only certain evidentiary matters may be considered in a summary judgment proceeding, e.g., pleadings, depositions, answers to interrogatories, admissions, and affidavits. La.Code Civ.P. art. 966(B). No testimony is allowed. Additionally, in a summary judgment proceeding, “[s]upporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.” La.Code Civ.P. art. 967(A).

This is contrary to the admissibility of affidavits permissible in summary proceedings allowed under Sec. 61. An affidavit in accordance with Sec. 61(4) only requires “that the facts as alleged are true to the best of the affiant’s knowledge or belief,” not that the affiant must have personal knowledge of the matters stated therein as required in summary judgment affidavits. This nuance creates a conflict between the requirements of admissible affidavits when a motion for summary judgment is filed within summary proceedings allowed under Sec. 61, as is the case herein.

| 1<t Furthermore, a summary judgment proceeding is only a type of summary proceedings. Summary proceedings are defined as “those which are conducted with rapidity, within the delays allowed by the court, and without citation and the observance of all the formalities required in ordinary proceedings.” La.Code Civ.P. art. 2592. Summary proceedings may be used for trial or disposition of those matters specifically set forth in La.Code Civ.P. art. 2592. Louisiana Code of Civil Procedure Article 2592(12) states that summary proceedings are allowed in “[a]ll other matters in which the law permits summary proceedings to be used.” Sec. 61 provides for the use of summary proceedings for the hearing and determination of all claims by or on behalf of the taxing authority or tax collector by preference in all courts. The summary proceedings in Sec. 61 allow for defenses to be presented and testimony to be had. This is contrary to a summary judgment proceeding which has strict evi-dentiary requirements and does not permit testimony.

Considering this disparity, a motion for summary judgment is problematic and inappropriate in Sec. 61 summary proceedings unless the legal requirements for all pertinent statutes are met. The affidavits by Mr. Thomas H. O’Neal, the Sales Tax Director for the Concordia Parish School Board, in the Sec. 61 proceedings, were valid, but those same affidavits are invalid in a summary judgment proceeding because they were not based on requisite personal knowledge. The matter comes before us in a summary judgment proceeding; therefore, the affidavits, which were not based on personal knowledge, were inadmissible, and the grant of the partial summary judgments improvident. This in no way precludes the use of Sec. 61 affidavits in summary proceedings in Sec. 61 hearings; however, should a summary judgment proceeding be implemented in | ^summary proceedings under Sec. 61, the strict evidentiary requirements of a summary judgment proceeding must be followed.

Even assuming, arguendo, that the notice herein is determined to be satisfactory, the grant of summary judgment must be and is reversed, as it was based on legally deficient affidavits and incompetent evidence.

ANSWER TO APPEAL

Finally, we must consider the Collector’s request for sanctions against the Companies for frivolous appeals. When considering allegations of a frivolous appeal, this court has stated:

The Louisiana Supreme Court has instructed appellate courts to award damages for frivolous appeal only when an appeal is taken for purposes of delay or when appellate counsel is not sincere in the belief of the view he or she advances on appeal. Middleton v. City of Natchitoches, 06-1531 (La.App. 3 Cir. 4/4/07), 954 So.2d 356. Damages will not be awarded where the slightest justification is found for taking the appeal and even where the appellant does not prevail. Id.
Roy v. Alexandria Civil Serv. Comm’n, 07-1458, p. 6 (La.App. 3 Cir. 4/2/08), 980 So.2d 225, 229.

Succession of Brown, 10-1394, p. 10 (La.App. 3 Cir. 6/29/11), 69 So.3d 1211, 1217.

In the instant matter, we have found the Companies’ appeals to be meritorious; therefore, the appeals are not frivolous. Thus, we deny the Collector’s request for sanctions for frivolous appeal.

DECREE

For the reasons expressed herein, the trial court’s grant of the partial summary judgments in favor of the Catahoula Parish School Board and Catahoula Parish Police Jury, and against Louisiana Machinery Rentals, LLC, and Louisiana Machinery Company, LLC, are reversed. Additionally, this matter is remanded to In;the trial court for further proceedings consistent herewith. Costs of this appeal are assessed to the Catahoula Parish School Board and Catahoula Parish Police Jury in the amount of $4,362.45 pursuant to La. R.S. 18:5112.

REVERSED AND REMANDED.

      . Louisiana Revised Statutes 47:337.48 provides as follows:
      A. If a taxpayer fails to make and file any return or report required by the provisions of the local ordinance and this Chapter, the collector shall determine the tax, penalty, and interest due by estimate or otherwise. Having determined the amount of tax, penalty, and interest due, the collector shall send by mail a notice to the taxpayer at the address given in the last report filed by him pursuant to the provisions of this Chapter, or to any address that may be obtainable from any private entity which will provide such address free of charge or from any federal, state, or local government entity, including but not limited to the U.S. Postal Service or from U.S. Postal Service certified software, setting out his determination and informing the person of his purpose to assess the amount so determined against him after fifteen calendar days from the date of the notice.
      B. If a return or report made and filed does not correctly compute the liability of the taxpayer, the collector shall cause an audit, investigation, or examination, as provided for by R.S. 47:337.35, to be made to determine the tax, penalty, and interest due. Having determined the amount of tax, penalty, and interest due, the collector shall send by mail a notice to the taxpayer at the address given in the last report filed by him pursuant to the provisions of this Chapter, or to any address that may be obtainable from the U.S. Postal Service or from U.S. Postal Service certified software, setting out his determination and informing the person of his purpose to assess the amount so determined against him after thirty calendar days from the date of the notice.

      . Louisiana Revised Statutes 47:337.51 provided as follows:
      A. Having assessed the amount determined to be due, the collector shall send a notice by certified mail to the taxpayer against whom the assessment is imposed at the address given in the last report filed by said taxpayer, or to any address obtainable from any private entity which will provide such address free of charge or from any federal, state, or local government entity, including but not limited to the United States Postal Service or from the United States Postal Service certified software. If no report has been timely filed, the collector shall send a notice by certified mail to the taxpayer against whom the assessment is imposed at any address obtainable from any private entity which will provide such address free of charge or from any federal, state, or local government entity, including but not limited to the United States Postal Service or from the United States Postal Service certified software. This notice shall inform the taxpayer of the assessment and that he has sixty calendar days from the date of the notice to (a) pay the amount of the assessment; (b) request a hearing with the collector; or (c) pay under protest in accordance with R.S. 47:337.63.
      B. If any dealer shall be aggrieved by any findings or assessment of the collector, he may, within thirty days of the receipt of notice of the assessment or finding, file a protest with the collector in writing, signed by himself or his duly authorized agent, which shall be under oath and shall set forth the reason therefor, and may request a hearing. Thereafter, the collector shall grant a hearing to said dealer, if a hearing has been requested, and may make any order confirming, modifying or vacating any such finding or assessment. The filing of any such protest shall not abate any penalty for nonpayment, nor shall it stay the right of the taxing authority to collect the tax in any manner herein provided. Appeals from the decision of the collector shall be directed to any state, city or federal court of competent jurisdiction. This Section shall afford a legal remedy and right of action in any state, city or federal court having jurisdiction of the parties and subject matter for a full and complete adjudication of any and all questions arising in the enforcement of the local ordinance and this Chapter as to the legality of any tax accrued or accruing or the method of enforcement thereof.
      C. (1) No assessment made by the collector shall be final if it is determined that the assessment was based on an error of fact or of law. An "error of fact” for this purpose means facts material to the assessment assumed by the collector at the time of the assessment to be true but which subsequently are determined by the collector to be false. "Error of law” for this purpose means that in making the assessment the collector applied the law contrary to the construction followed by the collector in making other assessments.
      (2) The determination of an error of fact or of law under this Subsection shall be solely that of the collector, and no action against the collector with respect to the determination shall be brought in any court, and no court shall have jurisdiction of any such action, it being the intent of this Subsection only to permit the collector to correct manifest errors of fact or in the application of the law made by the collector in making the assessment; however, all reductions of assessments based on such errors, except estimated assessments made due to the failure of the taxpayer to file a proper tax return, must be approved and signed by the collector. Estimated assessments made due to the failure of the taxpayer to file a proper tax return may be corrected by the acceptance of the proper tax return and must be approved by the collector or his designee.

      . Louisiana Revised Statutes 47:337.61 provides as follows:
      In addition to any other procedure provided in this Chapter or elsewhere in the laws of this state, and for the purpose of facilitating and expediting the determination and trial of all claims for taxes, penalties, interest, attorney fees, or other costs and charges arising, there is hereby provided a summary proceeding for the hearing and determination of all claims by or on behalf of the taxing authority, or by or on behalf of the collector, for taxes and for the penalties, interest, attorney fees, costs or other charges due thereon, by preference in all courts, all as follows:
      (1) All such proceedings, whether original or by intervention or third opposition or otherwise, brought by or on behalf of the taxing authority, or by or on behalf of the collector, for the determination or collection of any tax, interest, penalty, attorney fees, costs or other charge claimed to be due shall be summary and shall always be tried or heard by preference, in all courts, original and appellate, whether in or out of term time, and either in open court or chambers, at such time as may be fixed by the court, which shall be not less than two nor more than ten days after notice to the defendant or opposing party.
      (2) All defenses, whether by exception or to the merits, made or intended to be made to any such claim, must be presented at one time and filed in the court of original jurisdiction prior to the time fixed for the hearing, and no court shall consider any defense unless so presented and filed. This provision shall be construed to deny to any court the right to extend the time for pleading defenses, and no continuance shall be
      granted by any court to any defendant except for legal grounds set forth in the Louisiana Code of Civil Procedure.
      (3) That all matters involving any such claim shall be decided within forty-eight hours after submission, whether in term time or in vacation, and whether in the court of first instance or in an appellate court, and all judgments sustaining any such claim shall be rendered and signed the same day, and shall become final and exec-utory on the fifth calendar day after rendition. No new trial, rehearing or devolutive appeal shall be allowed. Suspensive appeals may be granted, but must be perfected within five calendar days from the rendition of the judgment by giving of bond, with good and solvent security, in a sum double that of the total amount of the judgment, including costs. Such appeals, whether to a court of appeal or to the supreme court, shall be made returnable in not more than fifteen calendar days from the rendition of the judgment.
      (4) Whenever the pleadings filed on behalf of the taxing authority, or on behalf of the collector, shall be accompanied by an affidavit of the collector or of one of his assistants or representatives or of the counsel or attorney filing the same, that the facts as alleged are true to the best of the affi-ant's knowledge or belief, all of the facts alleged in said pleadings shall be accepted as prima facie true and as constituting a prima facie case, and the burden of proof to establish anything to the contrary shall rest wholly on the defendant or opposing party.

      . We note that the supreme court, in docket number 12-1383, granted writs on September 28, 2012.

      . Louisiana Revised Statutes 47:337.45 (prior to January 1, 2011) provided as follows:
      A. In addition to following any of the special remedies provided in this Chapter, the collector may, in his discretion, proceed to enforce the collection of any taxes due under the local ordinance by means of any

        of the following alternative remedies or procedures:
      (1) Assessment and distraint, as provided in R.S. 47:337.48 through 337.60.
      (2) Summary court proceeding, as provided in R.S. 47:337.61.
      (3) Ordinary suit under the provisions of the general laws regulating actions for the enforcement of obligations.
      B. The collector may choose which of these procedures he will pursue in each case, and the counter-remedies and delays to which the taxpayer will be entitled will be only those which are not inconsistent with the proceeding initiated by the collector, provided that in every case the taxpayer shall be entitled to proceed under R.S. 47:337.63 except (a) when an assessment for the tax in question has become final or (b) when a suit involving the same tax obligation is pending against him; and provided further, that the fact that the collector has initiated proceedings under the assessment and distraint procedure will not preclude him from thereafter proceeding by summary or ordinary court proceedings for the enforcement of the same tax obligation.

      . We note that the supreme court, in docket number 12-1762, granted writs on September 28, 2012.


source: Caselaw Access Project

author: DANIEL L. DYSART, Judge.

license: Public Domain

text:
    Daniel AMBROSE, Jr. v. WALT DISNEY PARKS AND RESORTS, LLC., et al.
    No. 2012-CA-0489.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 31, 2012.

      Ford T. Hardy, Jr., Amber E. Welch, New Orleans, LA, for Plaintiff/Appellant.
    Christopher Seldon Mann, David Kyle Theard, Jones Walker Waechter Poitevent Carrere & Denegre, L.L.P., New Orleans, LA, for Defendant/Appellee, Walt Disney World, et al.
    Timothy G. Schafer, Schafer & Schafer, Paul Andrew Eckert, Bastían & Associates, New Orleans, LA, for Defendant/Ap-pellee, Am. Alt. Unions of the U.S., Inc.
    (Court composed of Chief Judge CHARLES R. JONES, Judge DENNIS R. BAGNERIS, SR., Judge DANIEL L. DYSART).
   DANIEL L. DYSART, Judge.

11Daniel Ambrose, Jr., appeals a judgment wherein the trial court adopted the verdict of a jury. The jury found in favor of the defendants, Walt Disney World Company, Amateur Athletic Union of the United States, Inc., and Lexington Insurance Company, dismissing Mr. Ambrose’s lawsuit, with prejudice. For the following reasons, we affirm.

BACKGROUND:

Mr. Ambrose claimed to have been injured on July 25, 2005, while working for GES Exposition Services, Inc. (“GES”), at the Morial Convention Center unloading trailers originally loaded by Walt Disney World Company (“Disney”) with in-line hockey rinks to be used at an event hosted by the Amateur Athletic Union (“AAU”).

The only issue to be decided on appeal is whether the jury was correct in finding that Mr. Ambrose’s injury was not caused by unloading a trailer originally loaded by Disney.

J^DISCUSSION:

In his first assignment of error, Mr. Ambrose argues that the jury verdict was clearly contrary to the law and evidence. He argues that he proved by a preponderance of the evidence that he was injured while unloading a trailer originally loaded by Disney. The trailer was improperly loaded causing him to suffer severe injuries to his shoulder and neck when something on the truck fell on him.

As this is a purely factual issue, we are bound to review the jury’s finding using the manifest error/clearly wrong standard. This Court employs a two-part test on review: 1) We must find from the record that there exists no reasonable factual basis for the finding by the trier-of-fact; and, 2) we must further determine that the record establishes that the finding is clearly wrong. Stobart v. State, Dep’t of Tramp. & Development, 617 So.2d 880, 882 (La.1993), citing Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). Although this Court might find that its own evaluations are more reasonable than the fact-finder’s, “reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony.” Id.

Our review of the transcript reveals that testimony given by the witnesses at trial varied greatly as to the circumstances surrounding Mr. Ambrose’s injuries. Rather than rely on the out-of-context excerpts quoted in Mr. Ambrose’s brief, we | ahave reviewed the testimony in its entirety and find a reasonable factual basis exists for the jury’s verdict.

It is undisputed that the subject hockey rinks were stored in 53 foot trailers in Orlando, Florida. It is also undisputed that the rinks were transferred into six 28 foot, or PUP trailers, to be transported to New Orleans for the event. What is disputed is whether Mr. Ambrose was injured while unloading one of those six trailers.

In more than one deposition given by Mr. Ambrose prior to trial, he gave conflicting testimony to that given at trial. At trial, he testified that he arrived at work at 8 a.m., but that the Disney trucks were late arriving at the dock. The first truck was unloaded by a forklift, but the second truck was poorly loaded, necessitating it being unloaded by hand. He notified Steve Sabito, his supervisor, who took pictures of the contents to document possible damage. He unloaded the fust row of cargo, and was holding up about shoulder height “something,” possibly Plexiglas, to allow a co-worker to pull cargo from underneath. He saw something in his peripheral vision falling, and was struck by a 4x4 wooden crate. On cross-examination, he said he couldn’t remember if it was a 4x4 crate or a 4x4 piece of wood. At trial, Mr. Ambrose testified that the truck he was unloading was a PUP trailer, although he was adamant in prior depositions that it was a 53 foot trailer. In depositions, he stated the doors were swing doors and had to be opened before the truck backed the trailer up to the dock. At trial, he said the doors were the roll-up type, usually found on PUP trailers.

Both Keith Noll, a volunteer working for AAU coordinating the event, and Sergio Gutierrez, a worker for the company hired by Disney to set up the displays, testified that the PUP trailers arrived at the dock before 8:30 a.m. Both men testified that the cargo in one of the PUP trailers had shifted during transport. The cargo in that trailer was the dasher boards, the perimeter of the rink into which the Plexiglas is attached. Mr. Noll explained at trial that the Disney dasher boards were on special carts that Disney had constructed to store them. The racks could be picked up by forklift. The dasher boards for the AAU rink were stacked in the trailer. However, the Plexiglas and sport floor were transported in separate trailers.

Both men testified that it took approximately two hours to unload all six of the PUP trailers, with the work being completed no later than 11:30 a.m. Mr. Gutierrez specifically recalled that all six trailers were unloaded by forklift, not by hand. Mr. Noll and Mr. Gutierrez both denied that anyone was hurt while unloading a PUP trailer.

Mr. Ambrose disputed the report from the nurse’s station where he claims to have gone immediately after his accident. The report indicated that he arrived at 1:27 p.m. He also disputed the intake form from Lindy Boggs Medical Center that indicated he arrived at 3:26 p.m. The medical record also reported that Mr. Am-brose left the emergency room, but returned at 8:05 p.m., when he was seen by a doctor and was x-rayed. He testified that he never left the hospital, but speculated that he may have “stepped out” when his name was called. As his injury was not a true emergency, he was not called again until much later.

| üSteve Sabito, Mr. Ambrose’s supervisor, testified that Mr. Ambrose called him at 12:45 p.m. to tell him he had been injured when a 4x4 platform fell on him. He had no recollection of telling Mr. Am-brose to unload a poorly loaded truck.

The only witness who attempted to corroborate Mr. Ambrose’s trial testimony was Albert Brown, a forklift operator also employed by GES. He testified at trial that some of the trucks that day had to be off-loaded by hand, palletized and then picked up by forklift. He testified that on the day of the accident, they started working at 8 a.m. It usually takes about 25 to 30 minutes to unload a PUP trailer, but would take 2 ½ to 3 hours to unload one by hand. He initially thought they would be unloading 53 foot trailers, because PUP’s did not pull up to the dock. When asked why he testified in a previous deposition that they were unloading 53 foot trailers with swing doors on the day of the accident, he said he assumed it was 53 foot trailers because they were already backed up to the dock with the doors open. On cross-examination, he admitted that “after talking to people,” he would testify differently than he had in his 2009 deposition.

Mr. Brown also testified that the equipment in the trailer in which Mr. Ambrose was injured was loaded with hockey equipment to be used at the AAU event. However, Mr. Noll, the AAU coordinator for the event, testified that there were many exhibitors at this event, one of which had a hockey shop complete with skates and sticks, and was equipped to fix hockey equipment. There was also a mini-type rink where children could take “shots” and win prizes. He verified that | fisome exhibitors used Plexiglas in their exhibits. All of these exhibitors had their cargo delivered in 53 foot trailers.

Mr. Ambrose argues that he carried his burden of proving that it was more likely than not that the trailer in which he was injured was one loaded by Disney in Orlando and contained Disney’s rink equipment. He refers to the testimony of both Mr. Noll and Mr. Gutierrez to assert that the trailers were late arriving at the dock in an effort to explain why he was not hurt until 12:45 p.m. A thorough reading of the testimony does not substantiate this assertion.

Mr. Gutierrez testified that upon arriving at the dock at 7:30 a.m., he could not immediately locate the trailers because he was looking for 53 foot trailers. He was unaware that the equipment had been transferred to PUP trailers in Orlando. He was also under the impression that the trailers had arrived the night before. However, he testified that he returned to the dock at 8:30 a.m. and the unloading began shortly thereafter.

Mr. Noll testified that he was the first one on the dock at about 7:30 a.m. When he did not see the trailers, he called the transporter. Before he hung up, he saw the trailers being pulled in. Contrary to Mr. Ambrose’s assertions, Mr. Noll did not testify that the trailers arrived two hours late in the morning before lunch. Rather, he stated that the unloading was finished before lunch.

A review of the record reveals that Mr. Ambrose could not identify the trailer in which he was injured, the type of cargo contained in the trailer, the object that fell and injured him, or the time that the injury occurred. At best, he was able |7to establish that he was at work on July 25, 2005, and was injured while unloading cargo to be used at an AAU event.

Based on the above and our own reading of the entire transcript, it is clear that the jury was well within its discretion to conclude, applying a preponderance of the evidence standard, that Mr. Ambrose was not injured in a Disney trailer. We cannot say that the jury’s finding was manifestly erroneous or clearly wrong.

In his second assignment of error, Mr. Ambrose argues that the jury interrogatories were confusing and misleading to the jury. In brief, counsel states that he made “numerous objections to the Jury Interrogatories.”

Article 1793 of the Louisiana Code of Civil Procedure provides in part:

C. A party may not assign as error the giving or the failure to give an instruction unless he objects thereto either before the jury retires to consider its verdict or immediately after the jury retires, stating specifically the matter to which he objects and the grounds of his objection. If he objects prior to the time the jury retires, he shall be given an opportunity to make the objection out of the hearing of the jury.

The record reveals that all parties agreed to the proposed jury interrogatories several days in advance of trial. On the second to last day of trial, counsel for Mr. Ambrose raised a concern about the interrogatories during a conference in chambers with all counsel present. The trial judge voiced her concerns about raising this concern so close to the end of the trial and well past the deadline for submission of the interrogatories. No formal objection was lodged by plaintiffs counsel and the discussion ended.

|sOn the last day of trial prior to the jury being seated, plaintiffs counsel again raised a concern about jury interrogatory No. I. The following colloquy ensued:

The Court: What’s wrong with these interrogatories? What happened that we now want to change it? Originally, this was a consent by you all. You submitted it to me. Now something happened and you all want to change these interrogatories?
Mr. Hardy: My fault, Judge. Blame it on me. I’ll just note my objection for the record and we can move on.
The Court: Well, I’m going to note it. I mean, unless you all have a problem. Do you want this? If you all can—
Mr. Schafer: (Discussion about subsequent interrogatory dealing with damages.)
Mr. Eckert: Your Honor, I’m confused as to what we’re even changing. I thought we agreed to these original jury interrogatories. I’ve not seen anything since, and to start off saying who’s involved, you, number one, have to ask was he involved in the accident. Number 2, you have to, I think under the law, like Mr. Mann had said, do you find the condition of this trailer presented unreasonable risk of harm. Then you find out the sustained injuries, and then you break down the fault, if there’s any, on the defendant. But what I’m hearing is the first question is — I don’t know what it is now, or what they’re asking.
The Court: It’s all about fault.
Mr. Eckert: So it’s at fault. I’ve never seen that done before.
The Court: Well, I certainly haven’t practiced as long as all of you have. I’ve never done that. I’ve done quite a few jury trials.
|flMr. Mann: Final comment, Your Hon- or. We’re talking about specific interrogatories. This form that has been submitted is specific, the facts of this case. Therefore, I think it will be clear to the jury. The jury can understand this as it pertains to this ease. I don’t think it presents any issues for their consideration.
The Court: Okay, Mr. Hardy, so you want to put why you think that we need to go—
Mr. Hardy: Let’s just move on, Judge. I would just submit that when I read the law, I was looking under directed verdict because I’m sure we’re going to get a motion — I’m going to make one, too — I came across this. I’ll just note for the record that I think the standard generic is what the law propounds. But I’m just going to note the objection for the record and we’ll move on, okay.
The Court: Okay. That objection is noted.

This Court in In Re Asbestos v. Bordelon, Inc., 96-0525, p. 12 (La.App. 4 Cir. 10/21/98), 726 So.2d 926, 940, stated:

In order to preserve an objection to a jury charge for appeal, a party must specifically object at trial and must state reasons for the objection, and a general objection is insufficient. Rule preventing party from assigning jury instruction as error absent a specific objection at trial also applies to jury interrogatories. (Emphasis added) (Internal citations omitted).

Clearly the objections made by plaintiffs counsel are not in conformity with what is required by In Re Asbestos. Aside from the general objection, it is not clear what counsel is objecting to in reference to the jury interrogatory. On appeal, he argues that the interrogatory was confusing and misleading to the jury. He cannot raise this argument for the first time on appeal.

Based on the above, we find Mr. Ambrose did not properly preserve this issue for appeal. However, assuming ar-guendo, that a proper objection was raised to this interrogatory, we find no merit to the argument that the interrogatory was | ^confusing or misleading. To the contrary, the interrogatory is clear, concise and necessary as a primary issue to be decided by the jury was whether Mr. Am-brose was working in a trailer loaded by Disney.

Mr. Ambrose’s third assignment of error is that the trial court erred in not granting his Motion for New Trial as the jury verdict was clearly contrary to the law and evidence.

Louisiana Code of Civil Procedure article 1972 provides that a new trial shall be granted “[wjhen the verdict or judgment appears clearly contrary to the law and the evidence.” The Louisiana Supreme Court recently stated, however, that the jurisprudence interpreting article 1972 recognizes the trial court’s discretion in determining whether the evidence is contrary to the law and evidence. Martin v. Heritage Manor South, 00-1028, p. 8 (La.4/3/01), 784 So.2d 627, 630. That discretion is limited, however, as the trial court cannot freely interfere with any verdict with which it disagrees. Davis v. Wal-Mart Stores, Inc., 00-0445, p. 10 (La.11/28/00), 774 So.2d 84, 93.

The Martin court further explained:

[i]n reviewing a ruling on a motion for new trial, ‘we are faced with the balancing of two very important concepts: the great deference given to the jury in its fact finding role and the great discretion given to the trial court in deciding whether to grant a new trial. The scales are clearly tilted in favor of the survival of the jury’s verdict, but the trial court is left with a breadth of discretion which varies with the facts and events of each case.’

Martin, 00-1023, pp. 6-7, 784 So.2d at 632. (internal citations omitted.)

With the aforementioned principles in mind, and based upon our thorough review of the record evidence as stated in our review of assignment of error No. 1, |nit cannot be said the trial court abused its discretion denying the motion for new trial.

Mr. Ambrose’s fourth assignment of error raises as error the trial court’s denial of his Motion for Judgment Notwithstanding the Verdict.

In Bigelow v. Crescent Title, LLC, 08-0932, p. 6 (La.App. 4 Cir. 10/15/08), 997 So.2d 83, 87, this Court explained that the standard of review for a JNOV is a two part inquiry. First, using the same criteria the trial court uses in deciding whether to grant JNOV, the appellate court must determine if the trial court erred. Davis v. Wal-Mart Stores, Inc., 00-0445 p. 5 (La.11/28/00), 774 So.2d 84, 89. “[T]he standard for granting or denying a JNOV is the same as that for a directed verdict— whether reasonable minds could differ.” Frank L. Maraist and Harry T. Lemmon, 1 Louisiana Civil Law Treatise, Civil Procedure § 13.4 (1999); see La. C.C.P. art. 1811. “After determining that the trial court correctly applied its standard of review as to the jury verdict, the appellate court reviews the JNOV using the manifest error standard of review.” Bigelow, 08-0932, p. 6, 997 So.2d at 87, citing Davis, supra.

As stated above, we find no manifest error in the jury’s findings. Accordingly, we find no error in the trial court’s denial of Mr. Ambrose’s Motion for JNOV.

Mr. Ambrose’s last assignment of error is not truly an assignment of error. Rather, he re-urges that this Court should reverse the judgment and award damages to him. For the reasons set for above, we decline to do so.

| ^Accordingly, we affirm the judgment of the trial court dismissing Mr. Ambrose’s lawsuit, with prejudice.

AFFIRMED

      . The jury interrogatory read as follows: "Do you find that Ambrose was involved in an accident on July 25, 2005 while unloading a trailer that had been loaded by Walt Disney World Company in Orlando, Florida." The jury responded "No,” and deliberated no further.


author: COOKS, Judge.

text:
    Paul LE, Individually and d/b/a Bonsai Sushi Downtown Lafayette, LLC. v. The BRADFORD GROUP, LLC, et al.
    No. 12-439.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 7, 2012.
    Rehearing Denied Dec. 26, 2012.

      Luke Edwards, Law Office of Luke Edwards, L.L.C., Lafayette, LA, for Plaintiff/Appellant Paul Le, Individually and d/b/a Bonsai Sushi Downtown Lafayette, LLC.
    Errol L. Cormier, Lafayette, LA, for Defendants/Appellees The Bradford Group, LLC and Brandon Hargrave.
    Douglas W. Truxillo, Onebane Law Firm, Lafayette, LA, for Defendant/Appel-lee Robert Gregory Brazell.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS and ELIZABETH A. PICKETT, Judges.
   COOKS, Judge.

11 FACTS AND PROCEDURAL HISTORY

In November of 2007, Plaintiff, Paul Le, Individually and d/b/a Bonsai Sushi Downtown Lafayette, LLC, entered into an agreement with Defendant, the Bradford Group, for the purchase and installation of “very sophisticated electronic equipment” for the restaurant. Defendant maintains the project was completed in early 2009. Plaintiff contends the job was never fully completed.

On May 27, 2011, Plaintiff filed a petition for damages alleging his restaurant was “robbed and vandalized” on December 15, 2009. Named as defendants were the Bradford Group, LLC, Brandon Hargrave, Robert Gregory Brazell, Joseph “Mickey” Mickens Sandifer, Scott A. Guillory and Shawn Johnson. The petition alleged the “robbers let themselves in by key which at the time The Bradford Group still had a key to the restaurant.” The petition alleged in Paragraph 10 the following:

10.
Several events took place in this investigation and on June 3, 2010 the following persons were arrested: Robert Brazell, Shawn Johnson and Joseph “Mickey” Mickens Sandifer. Per the Affidavit for Warrant of Arrest, “the burglary was committed at the demand of one of the owners of The Bradford Group, Robert Brazelle, in order to “repossess” unpaid for equipment”.

The petition further alleged The Bradford Group was vicariously liable under the theory of respondeat superior.

On June 21, 2011, Defendant, Robert Brazell filed an Exception of Prescription pursuant to La.Civ.Code art. 3492, contending the suit was prescribed on its face because it was filed (May 27, 2011) more than one year after the date the damage occurred (December 15, 2009). Brazell contended Plaintiffs petition alleged only tort damages, and no allegations of breach of contract or any prayer |2for contractual damages was contained in the petition. On July 13, 2011, The Bradford Group and Brandon Hargrave also filed an exception of prescription.

Both exceptions were set for hearing on July 25, 2011, but reset by agreement of the parties to August 22, 2011, as Plaintiff (who had filed the petition in proper person) had recently retained counsel. Four days prior to the rescheduled hearing date, Plaintiff again requested a continuance.

On August 22, 2011, at the hearing on the exception of prescription, counsel for Plaintiff agreed to waive his motion to continue. Counsel for Plaintiff also told the trial judge, “I don’t even mind if the Court grants the exception [of prescription] as long as I get my right to amend the petition to cure the perceived defect.” After questioning how Plaintiff was going to amend the petition if the prescription was granted, the trial judge took the matter under advisement. On September 12, 2011, the trial court granted the exception of prescription, denied any request for an amendment to the petition, and dismissed Plaintiffs claims against Defendants.

Plaintiff has appealed the trial court’s grant of the exception of prescription, arguing prescription should not have begun running until he was aware of the arrests of the defendants. He also asserts the trial court erred in failing to apply the ten year prescriptive period applicable to contractual torts.

ANALYSIS

I. When Should the Prescriptive Period Have Begun?

Plaintiff argues he could not properly file suit until he was aware of the identity of the people who robbed and vandalized his premises. He argues the doctrine of contra non valentem applies in this case. Louisiana courts have long recognized the doctrine of contra non valen-tem as an exception to the general rules |sof prescription. It stands for the premise that prescription cannot run against a person unable to bring an action. Contra non valentem is applicable under certain circumstances when the principles of justice and equity demand that prescription should be suspended because a plaintiff was unable to assert his rights for reasons external to his own will. Wimberly v. Gatch, 98-2361 (La.4/11/94), 635 So.2d 206.

The jurisprudence has recognized four instances where contra non valentem applies to prevent the running of prescription: (1) where there was some legal cause which prevented the courts or their officers from taking cognizance of or acting on the plaintiffs action; (2) where there was some condition coupled with the contract or connected with the proceedings which prevented the creditor from suing or acting; (3) where the debtor himself has done some act effectually to prevent the creditor from availing himself of his cause of action; and (4) where the cause of action is not known or reasonably knowable by the plaintiff even though his ignorance is not induced by the defendant. Wimberly, 635 So.2d at 211.

It is the fourth category which is relevant here, known as the discovery rule of contra non valentem. It provides that prescription runs from the date plaintiff discovers or should have discovered facts upon which his cause of action is based. Thus, prescription does not accrue against a party ignorant of his rights provided that ignorance is not willful, negligent or unreasonable. Wimberly, 635 So.2d at 211-212. Plaintiff alleges until he was certain of the true identity of the perpetrators, he was prevented from bringing a civil action for damages. Thus, even assuming the one-year period for delictual actions applies in this matter, he was unable to act until he knew the identity of the perpetrators of the crime against his restaurant.

Defendants counter Plaintiffs argument in this regard, contending there was | /‘nothing in law or in fact prevented the [Plaintiff] from timely [bringing] this unfounded action against [Defendants] within the period from December 15, 2009 until December 15, 2010.” We disagree. No arrests were made in the burglary until June 3, 2010. Therefore, Plaintiff could not reasonably know the identity (regardless of any suspicions he may have had) of those responsible for the theft of his property until June 3, 2010. Suit was filed on May 27, 2011, which was less than one year from the date he knew or should have known of the identity of the persons who stole his property. Therefore, the suit was filed within the one-year prescriptive period set forth in La.Civ.Code art. 3492.

We note Defendants vehemently deny their participation in the burglary of PlaintifPs restaurant. Yet at the same time, they maintain the prescriptive period should have begun running before an arrest was made and there was a reasonable basis to know the identity of the perpetrators. The law is clear that “[m]ere suspicion that a party may be responsible for a tort is not sufficient to commence the running of prescription.” 639 Julia Street Partners v. City of New Orleans, 02-777, p. 3 (La.App. 4 Cir. 11/13/02), 830 So.2d 1131, 1134, unit denied, 03-101 (La.3/21/03), 840 So.2d 541, citing Paragon Development Group, Inc. v. Skeins, 96-2125 (La.App. 1 Cir. 9/19/97), 700 So.2d 1279. Clearly, as Plaintiff notes, he could have subjected himself to lawsuits for libel and/or slander had he proceeded with suit before he was notified of the results of the police investigation. Under the facts of this case, we find the discovery rule prevented commencement of the running of prescription until Plaintiff had sufficient notice to pursue a claim against a particular defendant. That date would have been June 3, 2010, and Plaintiffs suit was filed within one year of that date. Therefore, Plaintiffs suit, filed on May 27, 2011, was timely. The trial court erred in granting the exception of prescription.

|fiH. Which Prescriptive Period Applies?

Plaintiff also contends the trial court erred in finding the only applicable prescriptive period governing this lawsuit was the one year prescriptive period for delictual torts found in La.Civ.Code art. 3492. He contends under the agreement between the parties, a contractual tort was committed when Defendants burglarized the restaurant in order to repossess allegedly unpaid for equipment. Thus, Plaintiff contends the ten year prescriptive period for contractual torts found in La.Civ.Code art. 3499 applies herein.

The correct prescriptive period to be applied in any action depends upon the nature of the action. It is the nature of the duty breached that should determine whether an action sounds in tort or in contract. Roger v. Dufrene, 613 So.2d 947 (La.1993). It is well settled that in certain circumstances the same acts or omissions may constitute breaches of both general duties and contractual duties, and may give rise to both actions in torts and actions in contracts. Good Hope Baptist Church v. ICT Insurance Agency, Inc., 10-142 (La.App. 3 Cir. 6/9/10), 41 So.3d 1229; We Sell Used Cars, Inc. v. United National Insurance Co., 30,671 (La.App. 2 Cir. 6/24/98), 715 So.2d 656; Franklin v. Able Moving & Storage Company, Inc., 439 So.2d 489 (La.App. 1 Cir.1983).

After careful review of the petition filed in this matter, we find the allegations made by Plaintiff therein against Defendants sound in both contract and tort. The petition clearly references the “contractual agreement with the Bradford Group” and goes on to allege the purpose of the burglary was the “repossession” of equipment due to an outstanding balance owed by Plaintiff. The Louisiana Supreme Court has stated “[t]here is no legal reason why a breach of a contract by tort does not furnish ground for an action for breach of contract.” Harper v. Metairie Country Club, 258 La. 264, 246 So.2d 8, 11 (1971). Thus,- we find the trial court erred |fiin granting the exception of prescription on the basis that the ten-year prescriptive period for breach of contract did not apply.

Defendants argue under the contract between the parties, Plaintiff would first have had to submit to an arbitration proceeding before any lawsuit could have been filed. They argue this is a clear indication that Plaintiff intended to file his suit strictly in tort rather than in contract, because he would have faced an exception of prematurity for failing to proceed to arbitration. We disagree and find the presence of the arbitration clause in the contract irrelevant here. The arbitration clause is clearly meant to apply to disputes in the business dealings between the two parties to the contract. It cannot reasonably be interpreted to apply to a criminal act of burglary perpetrated by one party against the other. Any condition in a contract written in Louisiana that would seek to legitimate such conduct would be “contra bonos mores” and unenforceable. Louisiana Civil Code Article 2030 expressly provides a contract is absolutely null when it violates a rule of public order.

DECREE

For the above reasons, the judgment of the trial court sustaining the exception of prescription is reversed and this case is remanded to the trial court for further proceedings. Costs of this appeal are assessed against defendants-appellees.

REVERSED AND REMANDED.

PICKETT, J., concurs.


author: DECUIR, Judge.

text:
    ST. LANDRY PARISH GOVERNMENT v. Anthony RUBIN.
    No. 12-506.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 7, 2012.
    Thomas J. DeJean, DeJean & Leger, L.L.C., Opelousas, LA, for Defendant/Ap-pellee, Anthony Rubin.
    James D. Hollier, Philip H. Boudreaux, Jr., Laborde & Neuner, Lafayette, LA, for Plaintiff/Appellant, St. Landry Parish Government.
    Court composed of OSWALD A. DECUIR, BILLY HOWARD EZELL, and PHYLLIS M. KEATY, Judges.
   DECUIR, Judge.

|, Anthony Rubin and his employer, the St. Landry Parish Government, each filed disputed claims for compensation which were consolidated at trial and for purposes of this appeal. For the reasons which follow, we affirm the judgment rendered in favor of the employee and issue separate decrees under each docket number. See Rubin v. St. Landry Parish Govt., 12-507 (La.App. 3 Cir. 11/7/12), 105 So.3d 194.

Anthony Rubin was employed as a road worker by the parish government. On October 28, 2009, he injured his neck and back while shoveling patch material onto a road. He was seen at a local.hospital that day and was thereafter unable to return to work. Compensation benefits were paid until June of 2010 when the employer discovered Rubin served as an umpire of children’s baseball games. Rubin admitted that he spent five to six weeks in the spring as an umpire at three or four games a week. He further acknowledged that he was sometimes paid $20.00 per game in cash to cover his expenses, including uniforms, snacks, and gas. Rubin did not disclose this income on the Form 1020 that he submitted to his employer. Consequently, the employer discontinued the payment of benefits, filed this disputed claim, and alleged fraud in violation of La.R.S. 23:1208. Several days later, Rubin filed a claim for benefits.

Following trial on the merits, the workers’ compensation judge (WCJ) found Rubin proved an accident occurred in the course and scope of his employment. The WCJ concluded Rubin did not commit fraud and was unable to return to his previous occupation, but he was able to perform sedentary or light duty work. Therefore, the WCJ awarded supplemental earnings benefits. He denied Rubin’s claim for penalties and attorney fees, finding the claim for compensation was reasonably controverted, given the video evidence and inaccurate information onJ^Form 1020. The employer appealed the award of benefits, contesting the factual findings on the fraud issue. Rubin answered the appeal, complaining of the denial of penalties and attorney fees.

In oral reasons for judgment, the WCJ reached the following conclusions:

Second issue, did the claimant violate Revised Statute 23:1208. In Resweber v. Haroil [Constr. Co., 94-2708 (La.9/5/95), 660 So.2d 7], the Louisiana Supreme Court held that the forfeiture of benefits due to Louisiana Revised Statute 23:1208 are first, there is a false statement or representation, second it is willfully made, and third, it is made for the purpose of obtaining or defeating any benefit or payment. The defendants allege the claimant violated 23:1208 for his failure to disclose cash he received for umpiring kids baseball games on 1020 forms he submitted. The defendants produced 1020 forms where the claimant denied receiving a salary, wage, sales commission or payment including cash of any kind. In addition the defendants produced three DVDs showing the claimant umpiring kids baseball games. There’s no doubt that the 1020 forms were filled out inaccurately. At trial the Court heard the testimony of Mr. Rubin. Mr. Rubin testified that he umpired kids baseball games approximately for 20 years. That the baseball season was for five to six weeks and that an umpire games three to four times a week with each game lasting an hour. He also testified he got paid Twenty Dollars a game and sometimes he wouldn’t get anything. He considered this a hobby and the Twenty Dollars was to cover expenses at times. Mr. Rubin also testified that he didn’t think he was doing anything wrong. Mr. Rubin additionally testified that he umpired games when his supervisor, Kent Richard, was at the baseball park. Considering the evidence and the testimony of Mr. Rubin, which the Court notes there was some inconsistencies in his testimony, however based upon his gestures, tone of voice, responses and reactions to questions[,] the Court makes a specific finding that Mr. Rubin’s testimony was credible. Being that 28:1208 is to be strictly construed, the Court finds the defendants failed to meet their burden of proof that the inaccurate 1020 forms were willfully made, thus the 28:1208 defense is denied.

After thoroughly reviewing the record before us, we find no manifest error in the conclusions reached by the WCJ. Rubin’s testimony was credible in the eyes of the WCJ, and in reading from the transcript, we find nothing which is clearly wrong as to that credibility determination. Rubin considered his work as an umpire to be a hobby — the money and physical effort involved inconsequential to his workers’ compensation claim. The fact that Rubin served as an umpire in the |spresence of his supervisor, the same man to whom he submitted the 1020 forms, belies any devious or fraudulent intent on his part.

In Harris v. Twin City Elec., LLC, 12-88, pp. 2-3 (La.App. 3 Cir. 6/6/12), 92 So.3d 649, 652, we held:

The WCJ found these incidents were inconsequential and should not result in a forfeiture of benefits pursuant to La. R.S. 23:1208. In Douglas v. Grey Wolf Drilling Co., 03-515, p. 9 (La.App. 3 Cir. 11/5/03), 858 So.2d 830, 836 (citation omitted), we stated that “because statutory forfeiture is a harsh remedy, it must be strictly construed. Whether an employee has forfeited his right to workers’ compensation benefits is a question of fact that will not be disturbed on appeal absent manifest error.”
The WCJ found no willful intent to deceive on the part of Mr. Harris in his testimony....
We will not overturn the factual findings of the WCJ in a forfeiture case in the absence of manifest error. Chaisson v. Philip Servs. Carp., 05-340 (La.App. 3 Cir. 11/2/05), 917 So.2d 514.

So it is in the instant case. The WCJ found no willful intent to deceive on Rubin’s part. This determination was based on Rubin’s testimony as well as the circumstances of the activity complained of by the employer. Essentially, given the evidence in the record, and as found by the WCJ, the employer has not proven its claim under La.R.S. 23:1208.

We address briefly Rubin’s appeal seeking reversal of the denial of penalties and attorney fees. The WCJ considered the employer’s surveillance video of Rubin serving as an umpire and the inaccurate 1020 forms as evidence of an objective reason for terminating benefits. “A WCJ’s decision to cast an employer with penalties and attorney fees is a question of fact which will not be reversed on appeal absent manifest error.” Harris, p. 5, 92 So.3d at 653. We find no manifest error in the denial of Rubin’s claim for penalties and attorney fees.

|4For the foregoing reasons, the judgment of the workers’ compensation judge is affirmed. Costs of this appeal are assessed to the employer.

AFFIRMED.


text:
    Anthony RUBIN v. CCMSI and St. Landry Parish Government.
    No. 12-507.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 7, 2012.
    Thomas J. DeJean, DeJean & Leger, L.L.C., Opelousas, LA, for Defendant/Ap-pellee, Anthony Rubin.
    James D. Hollier, Philip H. Boudreaux, Jr., Laborde & Neuner, Lafayette, LA, for Plaintiff/Appellant, St. Landry Parish Government.
    Court composed of OSWALD A. DECUIR, BILLY HOWARD EZELL, and PHYLLIS M. KEATY, Judges.
   DECUIR, Judge.

| ;For the reasons assigned in the companion case of St. Landry Parish Government v. Anthony Rubin, 12-506 (La.App. 3 Cir. 11/7/12), 105 So.3d 191, 2012 WL 5417326, the judgment of the Office of Workers’ Compensation is affirmed. Costs of this appeal are assessed to the employer.

AFFIRMED.