author: CRAIN, J.

text:
    In the Matter of the SUCCESSION OF Carole Bagwell BEARD.
    No. 2013 CA 1717.
    Court of Appeal of Louisiana, First Circuit.
    June 6, 2014.

      David M. Cohn, M. Virginia Kelly Smith, Baton Rouge, Louisiana, for Plaintiff/Ap-pellee, Julius Beard, Jr.

      Randall A. Shipp, Christopher Whitting-ton, Baton Rouge, Louisiana, for Defendant/Appellant, Christopher D. Shows.
    E. Wade Shows, Baton Rouge, Louisiana, for Defendani/Appellee, Doug Wel-born, Clerk of Court for East Baton Rouge Parish.
    Kathryn E. Jones, Clinton, Louisiana, for DefendantyApp ellee, David Dart, Clerk of Court for East Feliciana Parish.
    Before WHIPPLE, C.J., WELCH, and CRAIN, JJ.
   CRAIN, J.

Un this succession proceeding, a legatee filed a petition seeking to terminate a testamentary usufruct or, alternatively, requesting that the usufructuary post security. The trial court granted a partial summary judgment finding that the usu-fructuary had the right to sell the property subject to the usufruct; and, after a trial, the court entered a judgment that denied any relief to the petitioner. We amend the summary judgment and affirm the judgment as amended; and we reverse, in part, the judgment on the merits and remand.

FACTS AND PROCEDURAL HISTORY

Carole Bagwell Beard died testate on November 5, 1998. Her surviving husband, Julius Beard, Jr., instituted this proceeding shortly after her death and obtained an order probating Carole’s last will and testament. Carole’s will bequeathed to Julius a life-time usufruct over her community property and separate property, except for certain property bequeathed to Julius in full ownership. The usufruct was created in Article IV of the will, which provides, in pertinent part:

4.2 Except for the property which is used in satisfaction of the forced portion of my estate, my spouse shall have the right, power and authority to sell or otherwise dispose of any property subject to my spouse’s usufruct without having to obtain the consent of the naked owners thereof. Should any property subject to the usufruct granted herein to my spouse be sold or exchanged at any time, or from time to time, the usufruct to which said property was subjected shall apply to the proceeds of the sale or exchange of such property and to any property in which such proceeds may from time to time be reinvested.

After probating the will, Julius obtained a judgment of possession on June 29,1994, that, in pertinent part, placed him in possession of the “usufruct for his lifetime of all [of Carole’s] share in the community property and of any separate property” owned by Carole at the time of her death, less and except the property bequeathed to Julius in full ownership. The judgment of possession further provided:

LThat Julius Beard, Jr., be recognized as the surviving spouse in community, and as such entitled to the ownership and sent into possession of an undivided one-half (1/2) interest in the property belonging to the community of acquets and gains which existed between the deceased and her husband, together with usufruct for his lifetime of the remaining undivided one-half (1/2) as provided in the decedent’s Last Will and Testament ... which property is described as follows_(Emphasis added.)

The ensuing list of property consists of both immovable and movable property, including 295.51 acres of immovable property located in East Feliciana Parish (referred to herein as “the farm”) and a parcel of property located in the Virgin Islands, which Julius subsequently sold. The judgment of possession also vested each of Carole’s four children, two by a prior marriage and two from her marriage with Julius, with an undivided one-eighth (l/8th) interest in the property subject to the usufruct.

In September of 2008, approximately 14 years after the entry of the judgment of possession, one of Carole’s children from her first marriage, Christopher D. Shows, filed a petition in the succession proceeding seeking to terminate the usufruct based upon allegations that Julius had sold movable and immovable property subject to the usufruct without authorization from the naked owners and that he intended to sell more in the future. The petition further alleged that Julius had allowed fraud, waste, and abuse to impinge and devalue the property, that he failed to prevent encroachments, and that he failed to properly manage the property by diverting, converting, and dissipating the assets. Shows also recorded a notice of lis pendens in the mortgage records for East Feliciana Parish and East Baton Rouge Parish. He subsequently amended the petition to request that Julius be enjoined from selling or otherwise alienating or encumbering the property.

Julius answered and asserted a recon-ventional demand alleging that he was entitled to sell the property in accordance with the judgment of possession and |4Carole’s will. Julius contended that the judgment of possession provided him with all rights and privileges of a usufructuary as provided in Carole’s will, including, without limitation, paragraph 4.2, which set forth the right of the usufructuary to sell the property. He requested that the court declare his authority to sell or exchange the property subject to .the usu-fruct, order the cancellation of the notice of lis pendens, and award him all damages caused by the filing of the notice of lis pendens. The reconventional demand was subsequently amended to include an alternative claim requesting that the court amend or reform the judgment of possession to include the right to sell the property if the court found that the judgment of possession did not already incorporate the pertinent terms of Carole’s will by reference. In response to the reconventional demand, Shows filed a peremptory exception raising the objection of res judicata contending that the judgment of possession could not be modified because it was a final judgment and had the effect of res judicata.

While the exception was pending, Julius moved for a partial summary judgment seeking, among other relief, a judgment: (1) declaring that the provisions of Carole’s will related to the usufruct, including those found in Article IV of the will, are incorporated in the judgment of possession, and/or, in the alternative, amending the judgment of possession to include those provisions; (2) declaring the notices of lis pendens to be null and ordering their cancellation by the respective clerks of court; and (8) declaring that Julius is authorized to sell the property subject to the usufruct without the consent of Shows, with the proceeds thereof to |sbecome part of the usufruct. Julius’ exhibits offered in support of the motion included the judgment of possession and Carole’s will.

In addition to his argument that the judgment of possession expressly incorporated the terms of the usufruct contained in Carole’s will, Julius also contended that the judgment statutorily incorporated those terms pursuant to Louisiana Code of Civil Procedure article 8061C, which provides:

A judgment sending one or more petitioners into possession under a testamentary usufruct or trust automatically incorporates all the terms of the testamentary usufruct or trust without the necessity of stating the terms in the judgment.

This provision was added to Article 8061 by Louisiana Acts 2010, No. 226, § 1, which became effective on August 15, 2010; however, Julius maintained that the amendment was either procedural or curative and, therefore, applied retroactively to the judgment of possession rendered in 1993.

The trial court granted the motion for partial summary judgment and overruled the peremptory exception raising the objection of res judicata, finding that Carole’s will unequivocally gave Julius the authority to sell the property and that the language of the will should be binding. The court further found that the 2010 amendment to Article 3061 applied retroactively but noted that “the court’s ruling would be the same without the legislative enactment” of that amendment.

The partial summary judgment, however, did not adjudicate the merits of the principal claim by Shows seeking to terminate the usufruct or, alternatively requesting that Julius post security, nor Julius’ claim seeking damages and attorney’s fees caused by the filing of the notices of lis pendens. Those claims | (¡proceeded to trial where the trial court heard testimony from numerous witnesses that primarily addressed the condition of the farm before and during the existence of the usufruct and Julius’s intention to sell that property.

The evidence established that Carole and Julius purchased the farm during their marriage, and Shows and his children used the property for recreational purposes. Shows testified that as his mom was dying in the hospital, the family had a meeting at her bedside and agreed that the farm would “stay in the family, and the kids and grandkids would play on it and enjoy it, and it rocked along like that just fine for [the next] 15 years.” At some point thereafter, Julius contacted Shows and advised that he was going to sell the farm and offered Shows the option to purchase it for appraised value. When the parties were unable to reach an agreement, Julius informed Shows that he was going to sell the property on a specified date; and, according to Shows, Julius informed him that he “would never see a penny” of the proceeds. Shows, who is an attorney, believed that any sale of the property required his consent as a naked owner, and he cited the fact that Julius had obtained their consent in connection with the sale of some stock in a privately held corporation that was subject to the usufruct. Shortly before the identified sale date, Shows filed the petition seeking to terminate the usufruct and, as amended, to enjoin any sale of the property subject to the usufruct.

In support of his allegations of abuse and waste, Shows relied on Julius’ sale of the property in the Virgin Islands without the consent of the naked owners and his stated intent to sell the farm without their consent. Shows also testified that he and his immediate family have been banned from the farm since he filed the petition. As to Julius’ maintenance of the property, Shows described Julius’ efforts with the farm as “up or down over the years,” but Shows cited only one instance of any purported damage or deterioration, which he described as some “drainage problems” on one end of the property resulting from development on adjacent |7property that was “not a giant problem.” Shows confirmed that Julius “nearly always” bore the financial expense of the maintenance of the farm and that Julius purchased tractors and related equipment for that purpose. Shows conceded that Julius had the property logged and re-planted after the existing timber sustained damage from beetles, and that he paid for other improvements, including a water well and the construction of a pond.

Brian Hodges, a forester accepted by the trial court as an expert in timber assessment and management, testified that he supervised the replanting of pine trees on the farm several years ago and did a follow-up assessment of the property during the year prior to the trial. In his opinion, the growth of the trees was in accordance with his expectations, and he did not see any signs that Julius had abused the timber operation or had not followed Hodges’s instructions in connection therewith. He also did not see any signs of significant erosion or damage to the property. Leonard Kilcrease, an adjacent property owner, testified that he sometimes accesses the farm with permission, and he has never seen any erosion on the property caused by Julius.

Julius testified that when he and Carole purchased the property in the early 1990s, it was in “pretty bad shape” and “everything was in disrepair.” There was “junk all over the place [and] the house was infested with rats.” They remodeled the house and cleaned up the property. The property had been clear-cut prior to their acquisition, and Julius had any remaining timber cut and replanted. He also paid for several improvements, including a barn for the equipment, a pond, and a new water well. His usual maintenance consisted of cutting the grass, “bush hogging,” grading the access road, maintaining the equipment, and repairing the house.

He decided to sell the farm because he and his present wife intend to move to Washington, and he no longer has any use for the property and has grown tired |8of maintaining it. He denied any knowledge of the family meeting at Carole’s bedside where the family agreed not to sell the property, and he intended to use the proceeds from the sale to invest in an annuity that would be payable to all four children. Julius obtained an appraisal and contacted Shows to determine if he was interested in purchasing the farm because Shows had previously said he wanted to buy the property if it was ever offered for sale. During this time, an interested buyer approached Julius and offered to purchase the farm for $1,100,000.00. When Shows failed to produce a promised purchase agreement after several months, Julius informed Shows that he was going to sell the property to the other party. He gave Shows a definite deadline, and Shows then filed the petition and recorded the notices of lis pendens shortly before that deadline.

As to the property in the Virgin Islands, Julius testified that he and Carole had listed the property for sale before her death, and a buyer signed and forwarded a purchase agreement two days after Carole’s death. Julius contacted the closing attorney in the Virgin Islands and was informed that Carole’s death certificate would be sufficient to allow Julius to sign the act of sale and complete the transaction. He eventually used the proceeds from the sale to purchase a house in Baton Rouge, which is occupied by a son from his marriage to Carole. As to the movable property subject to the usufruct, it consists primarily of accounts at several financial institutions, and Julius confirmed that he has a financial advisor who manages the investment of those funds.

After taking the matter under advisement, the trial court denied Shows’ claim to terminate the usufruct or to require Julius to post security, finding that Julius has acted as a prudent administrator of the property and that Shows failed to prove that Julius had “placed the property itself or the rights of the naked owners in peril.” The court also denied Julius’ claim for damages asserted in his reconventional demand.

|<)A judgment was signed that set forth the court’s earlier rulings granting partial summary judgment and overruling the exception of res judicata, and the court’s ruling after the trial on the merits. More specifically, the summary judgment (1) declared that the provisions of Carole’s will related to the usufruct are incorporated in the judgment of possession by the terms of the judgment and/or amended the judgment of possession to include the provision of Article IV of the will; (2) declared that Julius was granted and has the power to sell all property of the succession subject to the usufruct, with all of the sale proceeds being subject to the same usufruct, including the farm property; and (3) ordered the cancellation of the notices of lis pendens. For the trial on the merits, the judgment denied any relief requested by Shows in his petition, as amended, to terminate the usufruct or to post security and denied any relief requested by Julius in his reconventional demand.

Shows appealed and assigns as error the trial court’s denial of the exception of res judicata and the concurrent granting of summary judgment to Julius, “i.e. in allowing the modification of the existing ‘Judgment of Possession’ by judicially including the right to sell in favor of Julius Beard, Jr., the usufructuary.” Shows also assigns as error the trial court’s failure to impose upon Julius the obligation to post bond.

LAW AND ANALYSIS

A. Summary Judgment

A motion for summary judgment shall be granted only if “the pleadings, depositions, answers to interrogatories, and admissions, together with the | inaffidavits, if any, admitted for purposes of the motion for summary judgment, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La.Code Civ. Pro. art. 966B(2). The party seeking summary judgment has the burden of proving an absence of a genuine issue of material fact. La.Code Civ. Pro. art. 966C. If the movant satisfies the initial burden, the burden shifts to the party opposing summary judgment to present factual support sufficient to show he will be able to satisfy the evidentiary burden at trial. La.Code Civ. Pro. art. 966C(2); Suite v. Lafayette City-Parish Consolidated Government, 04-1459 (La.4/12/05), 907 So.2d 37, 56. In determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria that govern the trial court’s determination of whether summary judgment is appropriate. Sanders v. Ashland Oil, Inc., 96-1751 (La.App. 1 Cir. 6/20/97), 696 So.2d 1031, 1085, writ denied, 97-1911 (La.10/31/97), 703 So.2d 29.

In support of the summary judgment, Julius argues that the authority to sell the property subject to the servitude was incorporated by reference into the judgment of possession by the language appearing therein that vested him with a usufruct “as provided in the decedent’s Last Will and Testament.” Shows counters that this language was merely a reference to the source of the usufruct rather than an incorporation of the terms of the usufruct. Shows also argues that permitting the terms of the usufruct to be incorporated into the judgment of possession would violate the Louisiana Public Records Doctrine.

In construing a judgment, the entire context must be considered, and in the event of doubt or ambiguity, it is proper to consider the pleadings, subject matter of the suit, reasons for judgment, and other matters of record in order to arrive at an interpretation consistent with a proper decree on the facts and law presented. In Williams Law Firm v. Board of Supervisors of Louisiana State University, 03-0079 (La.App. 1 Cir. 4/2/04), 878 So.2d 557, 565; State, Department of Transportation & Development v. Sugarland Ventures, Inc., 476 So.2d 970, 974 (La.App. 1 Cir.), writ denied, 478 So.2d 909 (La.1985).

The pleadings and other matters of record in this succession proceeding include Carole’s will and an order probating that will. Pursuant to the terms and conditions of Article IV of the will, Carole granted Julius the authority to sell property that is subject to the usufruct. Shows has never disputed that the will granted that authority to Julius. Based upon the clear intent of the testator reflected in the will probated with the court, we construe the language in the judgment of possession vesting Julius with a usufruct “as provided in the decedent’s Last Will and Testament” as including, by reference, the terms and conditions of the usufruct set forth in Carole’s will. This interpretation of the judgment of possession is entirely consistent with the undisputed facts and law presented to the court when the judgment was rendered.

We also reject Shows’ assertion that the Public Records Doctrine prohibits the incorporation of the will by reference into the judgment of possession. The Public Records Doctrine and its basic principles of recordation are now set forth in Louisiana Civil Code articles 3338 and 3342, “which protect third persons from the effect of unrecorded instruments affecting real estate and attempts to vary the terms or statements of fact in recorded instruments.” Hiers v. Dufreche, 12-1132 (La.App. 1 Cir. 5/31/13), 2013 WL 2395055 (quoting 1 Peter S. Title, Louisiana | iaReal Estate Transactions § 8:26 (2d ed.2008)). The Public Records Doctrine generally expresses a public policy that interest in real estate must be recorded in order to affect third persons, and the doctrine is founded upon our public policy and social purpose of assuring stability of land titles, Cimarex Energy Co. v. Mauboules, 09-1170 (La.4/9/10), 40 So.3d 931, 943.

The Public Records Doctrine has been described as a negative doctrine because it does not create rights, but rather, denies the effect of certain rights unless they are recorded. Cimarex, 40 So.3d at 944. In explaining the negative nature of the doctrine, the Louisiana Supreme Court has stated that third persons are not allowed to rely on what is contained in the public records, but can rely on the absence from the public records of those interests that are required to be recorded. Simply put, the rule that what is not recorded is not effective does not mean that what is recorded is effective in all events, despite any defect contained therein. Cimarex, 40 So.3d at 944.

Shows does not contend that the judgment of possession was not recorded, nor does he articulate how the Public Records Doctrine might prohibit the judgment’s incorporation of the terms of Carole’s will by an express reference thereto, particularly where the will was probated by the court and is a matter of public record in this same proceeding. Julius’s status as a usu-fructuary is evident from the face of the judgment of possession, and the extent of his authority in that capacity is readily ascertainable by a third person from the probated will referenced in the judgment and filed in this proceeding. Moreover, Shows, as an owner identified in the judgment of possession and personally bound thereby, does not qualify as a “third person” entitled to rely upon the Public Records Doctrine. See La. Civ.Code art. 3343 (effective July 1, 2006).

| ^Accordingly, the trial court did not err in granting partial summary judgment and declaring that the judgment of possession incorporated by reference the terms and conditions of Carole’s will relating to the testamentary usufruct granted to Julius. However, to ensure that the summary judgment comports with the terms and conditions of Carole’s will that are incorporated into the judgment of possession, we amend and consolidate the first two numbered paragraphs of the summary judgment, bearing numbers “1)” and “2),” to provide as follows:

Judgment is hereby rendered declaring that the judgment of possession rendered herein on June 29, 1994, incorporates by reference the terms and conditions of the Last Will and Testament of Carole Bagwell Beard relative to the testamentary usufruct granted to Julius Beard, Jr., including but not limited to those terms and conditions set forth in Article.IV of the Last Will and Testament.

We further find no merit to Shows’ objection of res judicata because the declaratory relief granted by the court did not alter or amend the judgment of possession. Rather, the summary judgment was a declaration of the rights of the parties based upon the court’s construction of the language of the judgment of possession. A person is entitled to relief by declaratory judgment when his rights are uncertain or disputed in an immediate and genuine situation,- and the declaratory judgment will remove the uncertainty or terminate the dispute. See La.Code Civ. Pro. arts. 1871, 1875; Williams v. City of Baton Rouge, 02-0339 (La.App. 1 Cir. 2/14/03), 848 So.2d 9, 13 (declaring parties’ rights and responsibilities arising out of judgments). The trial court correctly overruled Shows’s exception of res judicata.

B. Denial of Request for Security

| uIn his second assignment of error, Shows contends that the trial court erred in failing to impose upon the usu-fructuary the obligation to post bond. Consideration of this assignment of error first requires a determination of the applicable law, as the provisions governing a usufructuary’s obligation to post bond have undergone numerous amendments since the date of Carole’s death in 1993.

Julius specifically seeks to invoke an amendment to Louisiana Civil Code article 1499, added by Louisiana Acts 2003, No. 548, § 1 (“2003 Act”), which relieves a surviving spouse of the obligation to post security for the usufruct “except as expressly declared by the decedent or as permitted when the legitime is affected.” However, the 2003 Act provides that the “provisions of this Act are interpretive, procedural, and remedial and shall apply to testaments executed on or after June 18, 1996.” La. Acts 2003, No. 548, § 2 (emphasis added). We construe this statement as an expression of intent by the legislature that the amendment does not apply to wills executed before June 18, 1996. Otherwise, the statement would be superfluous. Carole’s will was executed in 1993, so the 2003 Act does not apply to this case. See La. Civ.Code art. 6; Keith v. United States Fidelity & Guaranty Company, 96-2075 (La.5/9/97), 694 So.2d 180, 183 (recognizing that if a legislative enactment expresses legislative intent regarding retrospective or prospective application, no further inquiry is warranted unless the enactment impairs contractual obligations or vested rights).

Furthermore, it is well settled that the law in effect at the time of the decedent’s death controls the substantive rights of inheritance in and to the succession property. See In re Succession of Buck, 02-0401 (La.App. 1 Cir. 11/8/02), 834 So.2d 475, 477; Succession of Landry, 460 So.2d 29, 30 (La.App. 1 Cir.1984), writ denied, 462 So.2d 1249 (La.1985); see also La. Civ.Code art. 870 (providing, in pertinent part, that testate and intestate succession rights, 11¡¡including the right to' claim as a forced heir, are governed by the law in effect on the date of the decedent’s death). The alleged obligation to provide security for the usufruct pertains to substantive rights of inheritance for both Julius, as the usufructuary of the designated property, and Shows, as a naked owner of that property. Accordingly, the law in effect at the time of Carole’s death in 1993 governs whether Julius is required to post security for the usufruct.

Louisiana Civil Code article 571 provided as follows in 1993:

The usufructuary shall give security that he will use the property subject to the usufruct as a prudent administrator and that he will faithfully fulfill all the obligations imposed on him by law or by the act'that established the usufruct unless security is dispensed with. (Emphasis added.)

The circumstances under which “security is dispensed with” are the subject of Louisiana Civil Code article 573, which at the time of Carole’s death provided:

Security may' be dispensed with by . the grantor of the usufruct or by operation of law. Legal usufructuaries, and sellers or donors of property under reservation of usufruct, are not required to give security.

Thus, under these provisions, legal usu-fructuaries were exempted from the obligation to post security. The usufruct granted in favor of a surviving spouse, whether testate or intestate, is a legal usufruct under the former version of Louisiana Civil Code article 890. See La. Civ. Code art. 890 (repealed by La. Acts. 1996, No. 77, § 1); Succession of McCarthy, 583 So.2d 140, 142 (La.App. 1 Cir.1991). Therefore, Julius, as a legal usufructuary, was generally exempted from the obligation to post security. However, Article 890 carved out the following exception from the exemption applicable to legal usu-fructuaries:

hJf the usufruct authorized by this Article affects the rights of heirs other than children of the marriage between the deceased and the surviving spouse or affects separate property, security may be requested by the naked owner. (Emphasis added.)

Similarly, Louisiana Code of Civil Procedure article 3154.1 (repealed by La. Acts. 2004, No. 158, § 2) provided:

If the former community or separate property of a decedent is burdened with a usufruct in favor of his surviving spouse, successors to that property, other than children of the decedent’s marriage with .the survivor, may request security ... in an amount determined by the court as adequate to protect the petitioner’s interest.

In reliance upon these articles, this court has repeatedly held that a surviving spouse who receives a legal usufruct over estate property is required to post security if the naked owners are children of a previous marriage of the decedent. See Succession of Weidig, 96-1214 (La.App. 1 Cir. 2/14/97), 690 So.2d 134, 137 (reversing trial court’s order permitting a delay for surviving spouse to post security until she' was placed in possession where naked owners were children of the decedent’s prior marriage); Morgan v. Leach, 96-0173 (La.App. 1 Cir. 9/27/96), 680 So.2d 1381, 1385 (holding that “plaintiffs herein, being children of a previous marriage, are clearly entitled to security”). Accordingly, although the record supports the trial court’s finding that Julius has acted as a prudent administrator of the property, his obligation to post security is mandatory under the law in effect at the time of Carole’s death because Shows is a child of Carole’s prior marriage. See La. Civ.Code arts. 571, 573, 890, and 3154.1; Succession of Weidig, 690 So.2d at 137; Morgan, 680 So.2d at 1385. The trial court erred in failing to order Julius to post security.

However, the trial court does have discretion concerning the amount and form of the security. As to the amount of the security, Louisiana Civil Code article 117572 sets forth that the security “shall be in the amount of the total value of the property subject to the usufruct,” but the article authorizes the court to “increase or reduce the amount of the security, on proper showing, but the amount shall not be less than the value of the movables subject to the usufruct.”

The form of the security is governed by Louisiana Civil Code article 1514 and Louisiana Revised Statute 9:1202, both of which authorize the court to “order the execution of notes, mortgages, or other documents as it deems necessary” or “impose a mortgage or lien” on the property as security. Comment (d) to Article 1514 further explains:

And the very word “security” itself is susceptible of several different meanings. There are many forms of security, such as a surety bond, a legal or conventional mortgage, and perhaps, in a more colloquial sense, a designation of the nature of an investment. An example of that latter kind of provision is found in Civil Code Article 618, which applies when, for example, a usufruct of a non-consumable is transformed into a usu-fruct of a consumable and the naked owner and the usufructuary are unable to agree on the investment of the proceeds within one year of the transformation of the property. In that case, Civil Code Article 618 authorizes the court to determine the nature of the investment. It is hoped that courts will not inflexibly apply the rule of this Article to require a usufructuary to post bond every time a naked owner requests security, but will consider all of the circumstances of the situation, such as the nature of the property that comprises the legitime, and whether the property is movable or immovable, consumable or nonconsumable, and what practical controls exist or may be used to protect the right of the naked owner without infringing on the rights of the usufructuary, or if so, by infringing in the least restrictive manner possible.

The trial court’s discretion is further guided by the purpose of the security as set forth in Article 571, providing that the usufructuary “shall give security that he will use the property subject to the usu-fruct as a prudent administrator and that he will faithfully fulfill all the obligations imposed on him by law or by the act that established the usufruct....” In that regard, we note that Julius’ expressed intention to exercise his right to sell the farm is not a breach of those obligations, | lsnor is it otherwise relevant to the determination of the amount and form of the security appropriate under Articles 571 and 572. Rather, in the event of a sale of any property, Louisiana Civil Code article 618 may be invoked in a timely manner by the naked owners to permit the court to im- ■ pose appropriate security at that time for that specific purpose. See La. Civ.Code arts. 616, 618.

In accordance with the foregoing, we remand the matter to the trial court for a determination of the amount and form of security to be provided by Julius. See Succession of Weidig, 690 So.2d at 137 (remanding to trial court for determination of appropriate security); Morgan, 680 So.2d at 1385 (remanding to trial court for determination of appropriate security).

CONCLUSION

We amend and consolidate the first two numbered paragraphs of the May 9, 2013 partial summary judgment, bearing numbers “1)” and “2),” to provide as follows:

Judgment is hereby rendered declaring that the judgment of possession rendered herein on June 29, 1994, incorporates by reference the terms and conditions of the Last Will and Testament of Carole Bag-well Beard relative to the testamentary usufruct granted to Julius Beard, Jr., including but not limited to those terms and conditions set forth in Article IV of the Last Will and Testament.

As amended, that judgment is affirmed. We reverse that portion of the judgment for the trial on the merits, also signed on May 9, 2013, to the extent it denied Shows’ request that Julius be required to post security; and we remand to the trial court for a determination of the appropriate amount and form of the security. Costs of this appeal are assessed equally to Julius Beard, Jr. and Christopher D. Shows.

MOTION TO SUPPLEMENT RECORD GRANTED; SUMMARY JUDGMENT AMENDED AND, AS AMENDED, AFFIRMED; JUDGMENT ON

TRIAL OF THE MERITS REVERSED, IN PART, AND REMANDED.

      . Julius also re-urged a previously filed motion for partial summary judgment that requested similar relief and further requested that Shows's suit be dismissed. The trial court held a hearing on the previous motion but apparently had not issued a ruling on that motion at the time of the filing of the subject motion for partial summary judgment.

      . These exhibits were offered in support of the previously filed motion for partial summary judgment and were offered again by reference in support of the subject motion for partial summary judgment.

      . Shows did not assign any error to the trial court’s denial of his request to terminate the usufruct or to enjoin any future sale of the property, so that portion of the judgment is final. The trial court also designated the judgment as a final judgment based upon the determination that there was no just reason for delay. See La.Code Civ. Pro. art. 1915B(1). The court's determination of the merits of the claims set forth in Shows’s petition and Julius’s reconventional demand constitutes a final, appealable judgment under Louisiana Code of Civil Procedure articles 1841 and 2083A; however, to the extent the designation applies to the provisions of the judgment granting summary judgment to Julius, we find no error in that designation.

      . See La. Civ.Code arts. 3338 et seq.

      . In construing the language of the judgment of possession to determine if it expressly in-coiporates the will’s terms and conditions for the usufruct, we are not endeavoring to determine whether the judgment is a "final" judgment for purposes of appeal pursuant to Louisiana Code of Civil Procedure articles 1918 and 2083. In that regard, Louisiana courts require that a final judgment be "precise, definite and certain.” See Laird v. St. Tammany Parish Safe Harbor, 02-0045 (La.App. 1 Cir. 12/20/02), 836 So.2d 364, 365. A review of the judgment of possession for purposes of Articles 1918 and 2083 is not necessary because no appeal of the judgment of possession is before the court. Rather, the appeal is from the summary judgment construing the judgment of possession and determining the rights and obligations flowing therefrom.

      . For the source provision in effect prior to the adoption of Article 3343, see La. R.S. 9:2722 (repealed by La. Acts 2005, No. 169, § 8).

      . The first numbered paragraph of the summary judgment alternatively "amended” the judgment of possession to incorporate the pertinent provisions of Carole's will. In light of our holding that the judgment of possession expressly incorporates those provisions, together with our amendment of the summary judgment to reflect that holding, we pretermit any consideration of whether the judgment of possession could be amended by the trial court under Louisiana Code of Civil Procedure articles 1951 or 3393B. For these same reasons, we pretermit consideration of whether Louisiana Code of Civil Procedure article 3061C applies retroactively to the judgment of possession.

      . This provision in Article 870 was enacted by La. Acts 2001, No. 560, which provides that "this Act shall not apply to successions which have been judicially opened prior to the enactment of this Act.” La. Acts 2001, No. 560, § 3. Although Carole’s succession was judicially opened before the effective date of that act, this particular provision in Article 870 is nevertheless consistent with the jurisprudence cited herein which mandates that the law in effect on the date of the decedent's death controls the substantive rights of inheritance in and to the succession property.

      . See also La. Civ.Code art. 1514, Comment (d) (“If one parses the sentence [in Article 890], it is apparent that the requirement of ‘security’ is not automatic; the naked owner must first make a request for security to be required.’’); Succession of Becker, 96-2169 (La.App. 4 Cir. 12/3/97), 704 So.2d 825, 830, writ' denied, 98-0682 (La.5/8/98), 718 So.2d 432 (surviving spouse required to post security where naked owners were children of decedent's prior marriage).

      . Louisiana Revised Statute 9:1202 and the pertinent language in Article 1514 were both adopted by Louisiana Acts 2003, No. 1207, § 1. The legislature deemed the amendment to be "interpretative, procedural and remedial" without any limitation on its application. Therefore, we find the provisions applicable to this case. See La. Civ.Code art. 6; Keith, 694 So.2d at 183.

      . We also grant the parties' joint motion to supplement the appellate record to include the exhibit captioned "STIPULATION (Exhibit J-3)” attached to the motion and order that said exhibit be included in the record herein.


source: Caselaw Access Project

author: KUHN, J.

license: Public Domain

text:
    Denise T. RANZINO v. OUR LADY OF THE LAKE REGIONAL MEDICAL CENTER.
    No. 2013 CA 1684.
    Court of Appeal of Louisiana, First Circuit.
    June 18, 2014.

      Michelle Sorrells, Baton Rouge, Louisiana, for Plaintiff-Appellant Denise T. Ran-zino.
    Phillip E. Foco, Baton Rouge, Louisiana, for Defendant-Appellee Our Lady of the Lake Regional Medical Center.
    Before KUHN, HIGGINBOTHAM, and THERIOT, JJ.
   KUHN, J.

12Claimant-appellant, Denise T. Ranzino, appeals the dismissal by summary judgment of her claims for medical treatment as well as for penalties and attorney fees against her former employer, defendant-appellee Our Lady of the Lake Regional Medical Center (OLOL), based on OWC’s conclusion that claimant could not sustain her burden of proving that the need for surgical intervention was related to the accident for which she suffered an on-the-job injury. Finding an outstanding issue of material fact precludes dismissal of her claims by summary judgment, we reverse.

Undisputed Facts:

OLOL does not dispute that Ranzino is a nurse who, on February 27, 2004, sustained an injury while she was working to, among other things, her lower back when she fell after tripping over her shoe lace, which had been caught in the locking mechanism of an OLOL patient’s recliner chair. It is also undisputed that Ranzino has a preexisting injury, a pars defect in her lower spine.

Applicable Substantive Law:

An employer has a statutory duty to furnish all necessary medical treatment caused by a work-related injury. See La. R.S. 23:120SA; Dangerfield v. Hunt Forest Products, Inc., 2010-1324 (La.App. 1st Cir.3/25/11), 63 So.3d 214, 218, writ denied, 2011-0814 (La.6/3/11), 63 So.3d 1019. The employee must prove that the expenses are reasonably necessary for treatment of a medical condition caused by the work injury. The question of whether a claimant is entitled to medical benefits is ultimately a question of fact. Starkey v. Livingston Parish Council, 2012-1787 (La.App. 1st Cir.8/6/13), 122 So.3d 570, 575.

When an employee proves that before the accident she had not manifested disabling symptoms, but commencing with the accident the disabling symptoms | sappeared and manifested themselves and medical or circumstantial evidence indicates a reasonable possibility of causal connection, the employee’s work injury is presumed to have aggravated or accelerated the preexisting disease to produce her disability. See Peveto v. WHC Contractors, 630 So.2d 689, 691 (La.1994); Starkey, 122 So.3d at 574-75.

Generally, where a factual determination is at issue in a motion for summary judgment, OWC cannot “evaluate the weight of the evidence” of the various physicians whose opinions and records have been admitted into evidence. Rather, factual issues must be decided at a trial on the merits due to genuinely disputed material facts surrounding a claimant’s preexisting condition and the work-relatéd accident. See Starkey, 122 So.3d at 577 (extent of claimant’s injury and disability were questions of fact properly addressed at the trial on the merits).

Application of Substantive Law to Undisputed Facts in a Motion for Summary Judgment:

In support of entitlement to summary judgment OLOL urgéd, and OWC agreed, that the medical records and the opinions of both neurosurgeons demonstrate that Ranzino cannot meet her burden of proving that the recommended back surgery and the symptoms that necessitate that surgery are causally related to the 2004 accident. And while our review does indeed confirm that OLOL has offered a reasonable factual basis to support OWC’s conclusion that the back surgery Ranzino asks her former employer to pay is not causally related to the on-the-job accident, the issue before us on appeal is whether there is any evidence that would allow a trier of fact to reach the opposite conclusion, i.e., that the need for the surgery was causally related to the oñ-the-job accident.

On appeal, Ranzino urges that she is entitled to application of the Peveto presumption that the work-related injury aggravated or accelerated her pre-existing lower back condition. The records of Edward Schwartenzburg, Ranzino’s obstetrics |4and gynecology doctor, showed that in October 2002, Ranzino complained that she had pelvic and lower back pain. But the doctor’s note also indicated that Ranzino was complaining of severe dysmenorrhea and neither of the medical experts’ deposition testimony related that low back pain directly to Ranzino’s pars defect condition. Indeed, neurosurgeon Dr. Kelly Scrantz expressly declined to state an opinion relative to the back pain associated with dys-menorrhea vis-a-vis that of pars defect of the spine. The record also contains Ranzi-no’s deposition testimony stating that she had not experienced any lower back pain between 1997 and the 2004 accident. With this showing, Ranzino produced factual evidence sufficient to establish that she will be able to satisfy her evidentiary burden of proof at trial. See La. C.C.P. art. 966C(2). Although not the only permissible interpretation of the evidence, clearly, the trier of fact would not be manifestly erroneous if he or she relied on this evidence to apply the presumption that the work-related accident aggravated or accelerated Ranzino’s preexisting pars defect condition.

On appeal, OLOL asserts that even with an application of the Peveto presumption, Ranzino still cannot meet her burden of proof that the requested back surgery is causally related to the on-the-job accident. Relying on the deposition testimony of Dr. Scrantz along with that of neurosurgeon, Dr. Najeeb Thomas, OLOL maintains that their collective opinions, concluding that the surgery is not causally related to the 2004 work accident is the only one in the record and, therefore, the only possible finding a trier of fact can make as a result of the evidence admitted at the hearing.

Dr. Thomas’s testimony was that while the initial trauma of the 2004 accident may have initially aggravated Ranzino’s preexisting pars defect condition, because Ran-zino had been symptomatic before the 2004 accident and there was a period of time in 2010 where she did not have any pain whatsoever, the need for the back surgery could not be related to the on-the-job injury. He buttressed his opinion with Ifjhis review of Ranzino’s medical records, explaining that with pars defect patients, either the condition manifests with consistent pain; or the patient experiences periods of waxing and waning pain. Since between 2004 and 2010, Ranzino’s pain waxed and waned, and then after a two-to-three-month period of time where she sought no treatment her pain became consistent, Dr. Thomas opined that the subsequent 2010 symptomology was based on a new manifestation of the pars defect injury unrelated to the earlier onset, a “progression” of the degenerative condition. Dr. Scrantz agreed with Dr. Thomas’s opinion, adding that “at some point you get far enough out from a particular event where it becomes very difficult to link.” Thus, this testimony supports the factual conclusion that the back surgery Ranzino requested OLOL to pay was not causally related to the 2004 accident. But this alone is not enough to grant summary judgment. The record must be devoid of evidence sufficient to establish the surgery that Ranzino sought is causally related to the 2004 accident as well.

Also introduced into evidence were the records of Dr. Sandra Weitz, who was Ranzino’s treating physician for pain management commencing in 2005. On August 11, 2010, Dr. Weitz opined that because there had been no subsequent events to account for Ranzino’s waxing and waning lower back pain, the injury was related to the 2004 accident.

Additionally, in his deposition testimony, Dr. Thomas acknowledged that when trauma causes continued pain with no dimin-ishment of inflammation and continued symptomology, the injury could be related to the trauma. He also admitted that pain management could result in periods of time where a patient’s pain is diminished although not totally extinguished. Dr. Scrantz concurred with Dr. Thomas on this point.

The record shows, and OLOL does not dispute, that in an attempt to obtain relief from the lower back pain she experienced commencing with the 2004 accident, |fiRanzino underwent epidural steroid injections, rhizotomies, and nerve blocks. Ranzino testified that while these measures would initially provide relief for periods of time, during 2010, they were no longer effective. The record is replete with evidence showing that throughout the entire period between 2004 and 2011, when she requested that OLOL pay for the back surgery, she was consistently taking prescription narcotic medication. And while there were times that Ranzino reported she needed less medication than at other times, she regularly continued to have her prescription filled.

Because the experts’ opinions were based in part on a finding that for a period of two-to-three months in 2010 Ranzino experienced no pain “whatsoever,” and the record contains evidence that Ranzino’s pain could have been present but masked by the effects of prescription narcotic medication, epidural steroid injections, rhizoto-mies, and nerve blocks, Ranzino produced factual evidence sufficient to support a finding that during that two-to-three month period she was in pain. Thus, a trier of fact could reasonably reject the opinions of Drs. Thomas and Serantz and, instead, rely on Dr. Weitz’s statement relating the need for the back surgery to the 2004 accident. In reaching the factual conclusion that the back surgery is related to the 2004 accident, a trier of fact could also reasonably determine that but for the masking effects from pain management measures, Ranzino experienced consistent pain related to the trauma of the 2004 work accident, in accordance with Dr. Thomas’s testimony. Since the record contains evidence sufficient to establish that the surgery Ranzino sought is causally related to the 2004 accident — as well as evidence that it was not causally related to the 2004 accident — an outstanding issue of material fact precludes summary judgment, and OWC erred in dismissing Ranzi-no’s claims.

DECREE

Accordingly, the OWC judgment is reversed. Appeal costs are assessed against defendant-appellee, Our Lady of the Lake Regional Medical Center.

REVERSED.

      . The expert medical testimony explained a pars defect as a small bone in the spine that did not form correctly and indicated it made Ranzino more susceptible to spondylolisthe-sis, which is a slippage of one the vertebrae onto another.


author: DREW, J.

text:
    MEMPHIS LIGHT, GAS AND WATER DIVISION, Plaintiff-Appellee v. Jerry L. PHILLEY, In His Capacity as Tax Collector for the Parish of West Carroll; Deanna K. Smith, In Her Capacity as the Assessor for the Parish of West Carroll; and the Louisiana Tax Commission, Defendant-Appellant.
    Nos. 49,189-CA, 49,190-CA, 49,191-CA, 49,192-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 13, 2014.

      Brian Andrew Eddington, Baton Rouge, for Appellants.
    Kean Miller LLP, Baton Rouge, by Linda S. Akchin, Christopher J. Dicharry, for Appellee.
    Before DREW, PITMAN and GARRETT, JJ.
   DREW, J.

|TThe City of Memphis, Tennessee, operates a municipal public utility through its Light, Gas, and Water Division. The natural gas plant is located within the corporate limits of the City of Memphis and Shelby County and provides electric, gas, and water service to residents of the area. In the course of its operations as a municipal public utility, the Memphis Light, Gas, and Water Division (“MLGW’) purchases natural gas, some of which is temporarily stored in West Carroll Parish until needed at peak times during the winter. The parties agree that:

• MLGW is a Tennessee political subdivision;

• the stored natural gas is public property; and

• equivalent volumes of the stored MLGW natural gas were later delivered exclusively to Memphis for sale to MLGW’s customers.

The dispute here is whether the gas is “held for public purposes.” We find that it is, and is thus exempt from Louisiana ad valorem taxes.

FACTUAL BACKGROUND

For the tax years 2009, 2010, 2011, and 2012, West Carroll Parish Assessor Deanna K. Smith assessed this natural gas inventory for ad valorem tax purposes.

West Carroll Parish Sheriff Jerry Phil-ley issued property tax bills totaling $406,041.85 on those assessments.

During the tax years at issue, MLGW purchased natural gas from suppliers who delivered the volumes purchased into Trunkline Gas Company, LLC’s interstate natural gas pipeline system at points in Louisiana and Texas. All of the natural gas received by Trunkline into its pipeline system is commingled as multiple buyers and sellers use the | gpipeline simultaneously. Once an amount of natural gas is delivered into the pipeline for MLGW’s account, energy-equivalent volumes are deliverable to MLGW, pursuant to a computerized scheduling system.

Trunkline also offers storage as a part of its transportation services. MLGW uses a computerized system to nominate volumes for injection, storage, and withdrawal from Trunkline’s storage facility in West Carroll Parish.

MLGW paid the taxes under protest and filed suit against the local public officials, seeking a refund because of its tax-exempt status.

LEGAL DISPUTE

MLGW asserts four different grounds for its claim of exemption, the first of which is dispositive of this dispute. We find that MLGW’s natural gas, stored in West Carroll Parish, is “public property held for public purposes” and therefore exempt under the provisions of Art. VII, § 21(A) of the Louisiana Constitution.

Both parties filed cross-motions for summary judgment that were brought for hearing on June 10, 2013. On July 25, 2013, the trial court ^issued written reasons for judgment holding that the stored natural gas was “public property used for public purposes” and was therefore exempt from property taxation under Art. VII, § 21 of the Louisiana Constitution. We have attached and adopt in toto the trial court’s excellent reasons for judgment.

INITIAL ANALYSIS

Over 60 years ago, the Louisiana Supreme Court ruled ón a facially similar issue in Warren County, Miss. v. Hester, 219 La. 763, 54 So.2d 12 (1951). That case held in dicta that for taxation purposes, “public property” refers only to property of Louisiana and its political subdivisions.

The trial court here referenced Hester, supra, but declined to follow the ruling, stating, “this court does not feel constrained to follow the reasoning and ruling of Hester” noting that “the limiting terms ‘Louisiana’ or ‘Louisiana political subdivisions’ do not appear in the constitutional provision providing for the exemption of ‘public property used for public purposes’.”

The trial court held that:

• the general rule for interpreting constitutional provisions is to give words their generally understood meaning;

• when a constitutional provision is plain and unambiguous and its application does not lead to absurd consequences, its language must be given effect;

• the natural gas owned by MLGW is public property used for public purposes and as such, is exempt from taxation under Art. VII, § 21(A);

• the exemption of public property used for public purposes is not limited to the public property of the State of Louisiana or its political subdivisions;

L* MLGW, being exempt from ad valorem taxation in Louisiana, was due a refund of all taxes paid under protest; and

• since MLGW was granted full relief on this one issue, the court pretermitted consideration of the other claims of MLGW.

Sheriff Philley and Assessor Smith appealed. We affirm in all respects.

DISCUSSION

1. Does the term “public property” apply only to Louisiana owned property?

In the ruling under review, the trial court concluded that the natural gas that is the subject of the underlying suits was exempt from property taxation under the provisions of Art. VII, § 21(A) of the Louisiana Constitution, which provides:

In addition to the homestead exemption provided for in Section 20 of this Article, the following property and no other shall be exempt from ad valorem taxation: (A) Public lands; other public property used for public purposes.

Hester, supra, allowed property taxes on a Warren County toll bridge that crossed the Mississippi River from Vicksburg to Louisiana. The Hester court made an extraneous comment in its opinion that the public property exemption did not extend to the property of other states and their political subdivisions. The trial court in the instant case disagreed, as do we.

|fiWe recognize the strict analysis required in exemption cases. We also know that our review is de novo. We totally agree, however, with the trial court’s application of the first rule of constitutional interpretation, that when a constitutional provision is plain and unambiguous and its application does not lead to absurd consequences, its language must be given effect. The constitutional language here could not be clearer.

2. Is the stored natural gas being “used for public purposes”?

Keith Knowles is the supervisor of energy resources for the City of Memphis. When he was asked in his deposition how the gas was used, he answered, “This gas is used to meet the demands of our customers, either by, to heat their homes for residential customers, or to heat their hot water heaters. For commercial and industrial customers it is used to also heat their buildings, their [air] conditioned space. It can also be used in the process of a business, such as a cleaners is using natural gas in the process of their business.”

In an affidavit, Mr. Knowles stated that MLGW:

• has neither physical control of nor legal authority over the pipeline;

• had the gas stored in order to meet the public need, not any profit motive;

• does not make a profit on its sales of natural gas to its customers;

• does not store natural gas for speculative purposes;

Is* does not “buy low” and “sell high”; and

• stores gas to ensure that it is able to meet the fundamental needs of its customers when winter comes to Memphis.

By affidavit, Rodney Cleek stated that he was an employee of MLGW, serving as the assistant manager of the Budget, Plant and Rates Department. He advised that the property tax paid by MLGW for 2009-2012 was passed through and incurred by MLGWs customers, located in Shelby County, Tennessee.

By affidavit, Cheryl W. Patterson stated that she was employed by MLGW as vice president and general counsel. She advised that MLGW:

• does not maintain an office or other physical facilities in Louisiana;

• does not own or operate the subject storage facility; and

• does not maintain any employees or representatives in Louisiana.

Ms. Patterson further stated that “the natural gas at issue in the petitions is municipally-owned property used for the public purpose of supplying the individual and corporate residents and citizens of the City of Memphis and Shelby County, Tennessee with natural gas services.”

Appellants argue that:

• the passive act of storing gas does not rise to the level of “use,” as required by the exemption; and

• the natural gas at issue was not used for “public purposes” after leaving storage in West Carroll Parish.

On the contrary, supplying energy for heating in the dead of winter seems to be the most basic public service owed by a city to its citizens. ^Accordingly, we find that the natural gas is used for public purposes.

3. Does La. Const. Art. VII, § 21(A) exempt the stored gas from taxation?

We agree with the trial court that this property is exempt from ad valorem taxes, for these five reasons.

(1) Hester, swpra, is factually distinguishable.
(2) The sheriff and assessor rely upon dicta in Hester.
(3) One 60-year-old judicial decision is not jurisprudence constante.
(4) The language of La. Const. Art. VII, § 21(A) is clear.
(5) Supplying natural gas to the public is a use for a public purpose.

|sThe position of the Louisiana public officials here is untenable. If the sheriff and assessor are correct, there will effectively be a Louisiana tariff collected from Tennessee consumers for natural gas stored in Louisiana, awaiting transit to the Memphis gates for use by its citizens.

The trial court was correct that natural gas stored in Louisiana for the account of MLGW is exempt from taxation. We find no error in the pure reasoning of the trial court on the asserted issues before us in this matter. MLGW is entitled to summary judgment as a matter of law that the natural gas stored for MLGW’s account is exempt from property tax pursuant to La. Const. Art. VII § 21(A).

DECREE

The judgment of the trial court in favor of Memphis Light, Gas, and Water Division, appellee, and against appellants, Hon. Jerry L. Philley, in his public capacity as Sheriff and Tax Collector of West Carroll Parish, and Hon. Deanna K. Smith, in her public capacity as Assessor of West Carroll Parish, is affirmed.

| aAll court costs have been paid. Further costs are not assessed. La. R.S. 13:4521.

AFFIRMED.

JjjEXHIBIT A

_b

      . MLGW’s other claims may well have merit, but the resolution of the other issues is unnecessary for the disposition of this dispute.
      Other claims asserted by MLGW:
      • The natural gas belonging to MLGW and held in storage in West Carroll Parish is "personal property in private storage moving through Louisiana in interstate commerce" and therefore exempt under Art. VII § 21(D)(3) of the Louisiana Constitution;
      • The assessment of ad valorem tax on the natural gas belonging to MLGW and held in storage in West Carroll Parish is a violation of the Commerce Clause of the United States Constitution as Louisiana residents receiving natural gas from a similarly situated Louisiana political subdivision would not bear the burden of paying a property tax on the natural gas; and
      • The assessment of ad valorem tax on the natural gas belonging to MLGW and held in storage in West Carroll Parish violates the Due Process and Equal Protection Clauses of the United States and Louisiana Constitutions.

      . "We think it plain that the exemption of all public property has reference only to property of Louisiana and its political subdivisions. There is no reason whatever to believe that the people of Louisiana, in adopting their constitution, intended to exempt from taxation the local property of foreign countries, other states or their political subdivisions.”

      . In Sherwood Forest Country Club v. Litchfield, 2008-0194 (La. 12/19/2008), 998 So.2d 56, our Supreme Court held that tax exemptions are strictly construed against the taxpayer, whose stringent burden is to overcome the judicial maxim that "to doubt is to deny the exemption.”

        . Indest-Guidry, Ltd. v. Key Office Equip., Inc., 2008-599 (La.App. 3d Cir.11/5/08), 997 So.2d 796, writ denied, 2008-2851 (La.2/6/09), 999 So.2d 782.

      . MLGW points out that the allowable scope of review would enable this court to affirm the trial court’s judgment on the same or other legal ground. We agree, but we find we can base this opinion upon the trial court’s precise reasoning in finding that MLGW’s stored natural gas is exempt from ad valorem taxation, pursuant to La. Const. Art. VII, § 21(A). The trial court was not required to rule on any of the other alternative arguments of MLGW, as its ruling was predicated upon the most obvious issue, i.e., that this dispute involves "public property used for public purposes." We also do not reach the alternative arguments.

      . In Hester, the toll bridge at issue was built by private capital and was operated as a private business venture until acquired by Warren County. The Louisiana Supreme Court focused its ruling on the fact that the bridge had never been properly dedicated for public use.

      . The Hester court indeed commented that the exemption applied only to property owned by Louisiana and its political subdivisions. This language, however, was in no way necessary to the disposition of the case. Accordingly, Sheriff Philley and Assessor Smith are relying on mere dicta, which are not binding. The trial court properly chose not to apply that judicial surplusage.

      . Only where a long line of cases within the state has followed the same reasoning may that reasoning be recognized as authority under the civil law principle of jurisprudence constante. There is no such line of cases following the reasoning in Hester, supra.

      . La. Const. Art. VII, § 21(A) expressly exempts public property used for public purposes from ad valorem taxation. Neither the term “Louisiana” nor "Louisiana political subdivisions” appears in this constitutional provision. The trial court was indeed "bound under our Constitution and the Civil Code to uphold and abide by the law” in its ruling.

      . There is ample support for this proposition in Louisiana statutory law:
      La. R.S. 30:22. Underground storage of natural gas, liquid hydrocarbons, and carbon dioxide
      A. The underground storage of natural gas, liquid hydrocarbons, and carbon dioxide which promotes conservation of natural gas or liquid hydrocarbons, or which permits the building of large quantities of natural gas or liquid hydrocarbons in reserve for orderly withdrawal in periods of peak demand, making natural gas or liquid hydrocarbons more readily available to the consumer, or which provides more uniform withdrawal from various gas or oil fields, each is in the public interest and for a public purpose.

      . We resolve all of the following issues in the negative:
      • Did the trial court err in finding that natural gas owned by the City of Memphis and held in storage in West Carroll Parish was exempt from ad valorem property taxation?
      • Did the trial court err in failing to follow the Louisiana Supreme Court's ruling in Warren County, Miss. v. Hester, supra, and declaring that natural gas owned by the City of Memphis was "public property” within the meaning of Art. VII, § 21(A) of the Louisiana Constitution?
      • Did the trial court err in finding that the natural gas held in storage in West Carroll Parish was being "used for a public purpose”?
      • Did the trial court err in ordering a full refund of taxes paid under protest?


author: GARRETT, J.

text:
    STATE of Louisiana, Appellee v. Kenneth WASHINGTON, Appellant.
    No. 49,236-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 13, 2014.
    Peggy Sullivan, Monroe, Louisiana Appellate Project, for Appellant.
    J. Schuyler Marvin, District Attorney, Marcus Patillo, John M. Lawrence, Assistant District Attorneys, for Appellee.
    Before BROWN, MOORE and GARRETT, JJ.
   GARRETT, J.

|T The defendant, Kenneth Washington, pled guilty to felony carnal knowledge of a juvenile and was sentenced to five years at hard labor. He appeals his sentence as excessive. We affirm.

FACTS

Between May 31, 2012, and June 7, 2012, the 18-year-old defendant (DOB 9/30/93) engaged in sexual intercourse with a 13-year-old girl (DOB 3/14/99) on two occasions. The defendant was charged with one count of felony carnal knowledge of a juvenile, in violation of La. R.S. 14:80. On July 22, 2013, the defendant pled guilty to this offense. As part of a plea agreement, the State nolle prossed another pending charge. The defendant was properly Boykinized and no promises were made as to the sentence which would be imposed. After accepting the plea, the trial court ordered a presentence investigation (PSI) report.

On September 9, 2013, the defendant came before the court for sentencing. After reviewing the PSI report, the trial court noted on the record that the defendant had been admonished at least twice by the girl’s grandfather as to her youth. Despite these warnings, the defendant was found in bed with the girl by the police. The trial court read into the record a letter from the defendant in which he admitted his guilt and apologized. However, he then sought to mitigate his culpability by asserting that the girl lied about her age.

|9The trial court considered the defendant’s criminal history. The PSI indicated that in June 2012 the defendant was arrested for three counts of simple burglary and one count of attempted simple burglary. On November 16, 2012, as part of a plea bargain, he pled guilty to one count of simple burglary and the other charges were nolle prossed. In January 2013, he was sentenced to three years at hard labor, with all but six months being suspended, and three years of probation upon release.

As to the defendant’s social history, the trial court observed that the defendant was raised by his mother because his father had been incarcerated most of the defendant’s life. The defendant began smoking marijuana in seventh grade and dropped out of school in the eighth grade. His only work experience was a short stint at McDonald’s.

After reviewing all of these considerations, the trial court imposed a midrange sentence of five years at hard labor. No fine or court costs were imposed. Factors specifically emphasized by the trial court as weighing in favor of this sentence included the prior warnings the defendant was given as to the young girl’s age, his limited work history, his drug usage, and his recent criminal history. The trial court gave the defendant credit for time served on this particular charge only. It also recommended the defendant receive substance abuse treatment and obtain his GED while incarcerated.

|sThe defendant filed a motion for reconsideration of sentence which merely asserted excessiveness. It was denied without hearing. This appeal follows.

LAW

Felony carnal knowledge of a juvenile is committed when a person who is 17 years of age or older has sexual intercourse, with consent, with a person who is 13 years of age or older but less than 17 years of age, when the victim is not the spouse of the offender and when the difference between the age of the victim and the age of the offender is four years or greater. La. R.S. 14:80(A)(1). Lack of knowledge of the juvenile’s age shall not be a defense. La. R.S. 14:80(C). Whoever commits this offense shall be fined not more than $5,000, or imprisoned, with or without hard labor, for not more than 10 years, or both. La. R.S. 14:80(D)(1).

Where the defendant’s motion to reconsider sentence alleges mere exces-siveness of sentence, on appeal the reviewing court is limited to considering whether the sentence is constitutionally excessive. State v. Mims, 619 So.2d 1059 (La.1993); State v. Jones, 48,624 (La.App.2d Cir.1/22/14), 132 So.3d 505.

A sentence is constitutionally excessive in violation of La. Const. Art. I, § 20, if it is grossly out of proportion to the severity of the offense or nothing more than a needless and purposeless imposition of pain and suffering. State v. Smith, 2001-2574 (La.1/14/03), 839 So.2d 1; State v. Bonanno, 384 So.2d 355 (La.1980); State v. Miles, 48,830 (La.App.2d Cir.2/26/14), 136 So.3d 916. A sentence is deemed grossly |4disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice or makes no reasonable contribution to acceptable penal goals. State v. Weaver, 2001-0467 (La.1/15/02), 805 So.2d 166; State v. Miles, supra.

The trial judge is given wide discretion in the imposition of sentences within the statutory limits, and the sentence imposed should not be set aside as excessive in the absence of a manifest abuse of discretion. State v. Williams, 2003-3514 (La. 12/13/04), 893 So.2d 7; State v. Thompson, 2002-0333 (La.4/9/03), 842 So.2d 330; State v. Miles, supra.

DISCUSSION

The defendant argues that the sentence is excessive due to his youth and limited education. He contends that he is remorseful and that the sentence is merely punitive and will not rehabilitate him. On the other hand, the state asserts that the sentence is appropriate due to the circumstances of the offense, the defendant’s criminal history, and drug use.

The five-year sentence imposed by the trial court fell within the midrange of possible sentences. Circumstances taken into account by the trial court included the fact that the defendant was warned by the girl’s grandfather about her young age. We note that the PSI reflects that the defendant had been banned from the apartment complex where the girl and her grandfather resided. Despite this and the steps taken by the grandfather to protect his vulnerable granddaughter, the defendant continued his illicit conduct. He was discovered by the police in bed with the girl. According to the PSI, the defendant’s first version to the police concerning what | «¡happened was that he and the girl had fallen asleep in her bed after kissing and touching. Although the defendant did eventually admit to two incidents of sexual intercourse, he was initially untruthful. These events were obviously disturbing to the victim’s grandfather, who had undertaken numerous measures to protect his granddaughter from the older defendant. The girl’s grandfather asked for a lengthy jail sentence in order “to feel justice has been served in this matter.”

The defendant also had a disturbing criminal history involving multiple felony offenses. However, because the instant offense occurred before his burglary conviction, the defendant only faced sentencing here as a first felony offender with two felonies. We note that the PSI indicated that the defendant also had a juvenile record. Additionally, the defendant is a school dropout with a meager work record and a substance abuse problem.

Based upon all of these factors, we find no abuse of the trial court’s discretion in the imposition of the midrange five-year sentence.

CONCLUSION

The defendant’s conviction and sentence are affirmed.

AFFIRMED.

      . The record suggests that it was a charge of entry after being forbidden.

      . Although the record indicates that the grandfather told the defendant that the girl was only 15 years old, the date of birth in the amended bill of information demonstrates that she was actually 13 years old at the time of the offense.

      . Pursuant to La. R.S. 15:541(24)(a), 15:542, 15:544, the defendant will also be required to register as a sex offender for a period of 15 years from the date of his initial registration.