author: GUIDRY, J. WHIPPLE, C.J.,

text:
    Crystal A. SMITH and Gwendolyn Smith v. Raymond FELTON, Jr and XYZ Insurance Company
    NUMBER 2016 CA 0451
    Court of Appeal of Louisiana, First Circuit.
    APRIL 06, 2017

      Prentice L. White, Baton Rouge, LA, Counsel for Plaintiffs/Appellants Crystal A. Smith and Gwendolyn Smith
    Kenneth L. Blanchard, Jr., Plaquemine, LA, Counsel for Defendant/Appellee Raymond Felton, Jr.
    BEFORE: WHIPPLE, C.J., GUIDRY, and McClendon, jj.
   GUIDRY, J.

12Plaintiffs appeal a judgment rejecting their claims for damages and injunctive relief and declaring the defendant to be the owner of the property to which they claimed ownership. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Crystal A. Smith and Gwendolyn Smith filed a petition for damages against Raymond Felton, Jr. on August 9, 2011, alleging that they were the owners of a tract of land in Iberville Parish bearing the municipal address of 31980 Lacroix Road in White Castle, Louisiana. The plaintiffs claimed that Mr. Felton was misrepresenting that he owned the property, that he had entered onto the property without their permission or consent, and that he intentionally damaged the house located on the property. They further alleged that they suffered property damage and mental distress as a consequence of Mr. Felton’s actions and therefore were seeking injunc-tive relief forever prohibiting Mr. Felton from entering onto the property as well as damages.

Mr. Felton answered the plaintiffs’ petition generally denying their allegations of ownership and trespass. Instead, Mr. Fel-ton alleged that he was the owner of the tract of land and the improvements situated on the property located in Iberville Parish, bearing the municipal address of 31980 Lacroix Road, White, Castle, Louisiana. Mr. Felton further answered to assert that “[o]n knowledge, information and belief, there are dual chains of title to the subject property” and that the common ancestor in title to both the plaintiffs’ title and his was Voltaire Baptiste. Mr. Felton then identified his chain of title as originating from an act of cash sale from Voltaire Baptiste to Norah Williams that was dated and recorded on February 23, 1897. Mr. Felton identified the plaintiffs’ chain of title as originating from an act of cash sale from Voltaire Baptiste to Morris Meyer that was dated August 21, 1899, and that was recorded on August 24, 1899. Thus, Mr. Felton Rprayed for judgment in his favor decreeing him owner and entitled to be maintained in possession of the property in dispute.

A trial on the merits in this matter was held on August 22, 2014, and after taking the matter under advisement, the trial court rendered judgment in favor of Mr. Felton, holding that “Raymond Felton, Jr., his ancestors in title and their agents have been in continuous corporeal possession of the subject property for a period in excess of thirty years and recognizing Raymond Felton Jr. as an owner and as such entitled to be maintained in possession” of the property bearing the municipal address of 31980 Lacroix Road, White Castle, Louisiana 70788. The written judgment in favor of Mr. Felton was signed on July 6, 2015.

In response to the judgment, the plaintiffs filed a motion for new trial, which was denied by the trial court, and this devolutive appeal followed.

DISCUSSION

The plaintiffs’ sole contention on appeal is that the trial court misconstrued the evidence presented at trial to find that the defendant established thirty-year acquisitive prescription of the property in dispute. In particular, plaintiffs argue that Mr. Felton failed to establish a juridical link between his alleged ancestors in | ¿title to himself, whereas they presented evidence establishing such a juridical link regarding their claim to the property in dispute. At trial, the plaintiffs offered a copy of a May 22, 1984 act of cash sale wherein they purchased from the estate of their mother, Agnes Watkins Smith, the following described property:

A certain lot of land, lying and situated in the Parish of Iberville, and on the west bank of the Mississippi River, in the Village of Dorseyville, and being the eastern one-third of Lot 36 on plan of Dorseyville, on file in the Recorder’s office of Iberville Parish, and measuring 62 1/3 feet front on Julia Street by all the depth between parallel lines of 77 feet more or less or to Lot No. 34 in the rear, bounded front by Julia Street, North or towards the river by Lot No. 34, west by the middle portion of Lot No. 36 reserved by said vendor, and east by Brusly Lecrois Road.

Mr. Felton, on the other hand, offered into evidence an October 20, 1965 judgment of possession, wherein the following described property was acquired by his grandmother and subsequently conveyed to his father, as his grandmother’s sole surviving heir, following the death of his grandmother:

A certain lot or parcel of land lying and situated in the Parish of Iberville, Louisiana, on the right bank of the Mississippi River, in the Village of Dorsey-ville, and being a part of Lot. No. 36 on Dickinson’s Plan of said Village, measur-mg in front on the Brusley Lacroix Road 62 feet by a depth between parallel lines of 60 feet; bounded towards the river by lot of Phenn Bridgewater, on the opposite side by Cross Road No. 2, in front or below by Brusley Lacroix Road, and in the rear by lot of Norah Williams. Acquired as per C.B. 73, E. 56. C.B. 34, E. 207.

Mr. Felton testified at trial that he did not open a succession for his father, but he offered into evidence the obituaries of his father and mother wherein he was listed has their child. It is the plaintiffs’ contention that the foregoing evidence presented by Mr. Felton is insufficient to establish a juridical link whereby he could tack the possession of the property by his parents to establish the requisite thirty years for acquisitive prescription. We disagree.

In this case, because Mr. Felton does not possess an actual title to the property in dispute, in order to prove his claim of ownership, he must establish ownership by acquisitive prescription. A possessor lacking good faith or just title may acquire prescriptive title by possessing the immovable property for thirty years with the intent to possess as owner. See La. C.C. art. 3486; Campbell v. Cerdes, 13-2062, p. 7 (La.App. 1 Cir. 8/10/15), 181 So.3d 41, 47, writ denied, 15-1658 (La. 10/30/15), 180 So.3d 302. Whether a party has possessed property for purposes of thirty-year acquisitive prescription is a factual determination by the trial court and will not be disturbed on appeal unless it is clearly wrong. Campbell, 13-2062 at p. 8, 181 So.3d at 47.

Louisiana Civil Code article 3441 provides that possession can be transferred by universal title or by particular title. The possession of the transferor is tacked to that of the transferee if there has been no interruption of possession. La. C.C, art. 3442. Under Articles 3441 and 3442, an essential prerequisite to tacking possession is privity of contract or estate, sometimes referred to as a “juridical link,” to the property to which the possessor asserts prescriptive title. Campbell, 13-2062 at p. 9, 181 So.3d at 48. Under the general tacking provisions of La. C.C. arts. 3441 and 3442 and their statutory precursors, tacking is only allowed with respect to property that is included and described in the juridical link between the possessor’s ancestor in title and the possessor himself. Brown v. Wood, 451 So.2d 569, 573-74 (La. App. 2d Cir.), writ denied, 452 So.2d 1176 (La. 1984).

The law generally prohibits proof of an interest in immovable property by parol evidence. See La. C.C. arts. 1839 and 2440; Campbell, 13-2062 at p. 12, 181 So.3d at 49. Nevertheless, as previously stated, it has been held that a juridical link for tacking purposes can be established by privity of contract or estate. See Campbell, 13-2062 at p. 9, 181 So.3d at 48. In Noel v. Jumonville Pipe and Machinery Company, 245 La. 324, 336-38, 158 So.2d 179, 184 (1963), the Louisiana Supreme Court gave the following explanation regarding the concept of “privity” in the context of possession and prescription:

Although it has been said that there is no definition of the word ‘privity’ which can be applied in all cases, as most generally defined, and in its broadest sense, ‘privity is the mutual or successive relationship to the same right of property, or such an identification in interest of one person with another as to represent the same legal right.
“Privity’ is also defined as meaning a successive relationship to, or ownership of, the same property from a common source; a succession of relationship to the same thing, whether created by deed or by other act, or by operation of law; a succession of relationships by deed or other act or by operation of law; and is further defined as meaning a derivative kind of interest, founded on, or growing out of, the contract of another.
‘While privity implies succession, it also implies a derivation of title, and exists only because of the relationship between the parties or because of the derivative character of their title. Privity exists where successive relationship of, or ownership to, the same right of property from a common source appears, and it exists between two successive holders when the latter takes under the earlier as by grant, descent, will, or voluntary transfer of possession. Thus, in order to constitute privity between successive occupants of property, all that is necessary is that one receives his possession from the other by some act of such other, or by operation of law. [Emphasis added.]

The court in Noel went on to conclude that the plaintiffs in that ease were entitled to join their possession to that of their ancestor, their father, because “privity” existed between the plaintiffs and their ancestor with respect to 17possession of the property in dispute. The court premised its conclusion on the fact that upon the ancestor’s death, his’ legal heirs, ie., his eight children, were called to his succession by operation of law and being seized of the succession of their father, the children were authorized to continue the possession of the disputed property as if there had been no interruption. Noel, 245 La. at 338— 39, 158 So.2d at 184-85.

Moreover, it has been held that “to hold that privity of estate does not occur except through description of the subject property in the muniments of title connecting the possessors, ignores the effect” of the law of successions. See Richey v. Hill, 84 So.2d 291, 295 (La. App. 2d Cir. 1955). In Richey, the court observed that “[t]he muniments of title found in the [plaintiffs] claim of ownership describe the land in dispute herein but the records supporting the [defendant’s] title do not.” Thus, the court found that the defendant was relegated to proving “title by possession” to establish his claim of ownership of the property in dispute; however, in order to show such possession, it was necessary for the defendant to tack his possession of the disputed property to that of his deceased wife to establish the requisite thirty years of possession. Hence, the question before the court became whether the possession by the defendant’s wife could be tacked to that of the defendant. Richey, 84 So.2d at 293-94.

The issue in Richey involved boundary acquisitive prescription as opposed to general acquisitive prescription. See Odom v. Elliott, 452 So.2d 315, 318-19 (La. App. 2d Cir. 1984)(wherein the court held that “[u]nder the general prescription provisions, that privity of title must encompass the land to which prescriptive title is claimed. Under the boundary prescription provisions, on the other hand, it is sufficient that the requisite privity of title encompass land adjacent to the property to which prescriptive title is claimed.) The appellate court found that the trial court erred in concluding that there was no privity of estate because |sthe judgment in the succession proceedings of the defendant’s wife did not include the tract of land in dispute. Richey, 84 So.2d at 294. Instead, the appellate court observed the principle of succession law that where there is a universal legatee and no forced heirs, the universal legatee is then seized of right of the effects of the succession. Richey, 84 So.2d at 295; see also La. C.C. arts. 934-936. The appellate court rejected the plaintiffs argument that the defendant had to prove that his wife had no forced heirs in order to be accorded the rights of seizen, holding that “[s]uch proof is negative and [the defendant] is entitled to rely on the presumptions which flow from the judgment [of possession].” Thus, the appellate court concluded that as a consequence of the defendant’s claim of seizen of the property of his wife by virtue of being her universal legatee, and there being no forced heirs, there was privity between the estates of the defendant and his deceased wife. Richey, 84 So.2d at 295-96.

Further, it has been held that the law of seizen equally operates to establish possession for purposes of acquisitive prescription, even in the absence of a judgment of possession. In Livingston v. Unopened Succession of Dixon, 589 So.2d 598 (La. App. 2d Cir. 1991), the appellate court affirmed the trial court’s finding that the defendants in that matter had obtained title to the land by acquisitive prescription, although a succession was never opened following the death of the defendants’ ancestor in title.

In that case, the defendants were the heirs of the ancestor in title. Livingston, 589 So.2d at 600. On review, the appellate court found that based on the evidence presented at trial, the defendants’ ancestor in title had possessed the property in dispute from the date he purchased the property in 1944, until his death in 1968 or 1969. The court then found that following the death of the defendants’ ancestor in title “and their assumption of ownership of the property, the defendants continued to occupy and use the entire property up to the fence line.” Livingston, 589 So.2d at 602-03. Hence, the court concluded that “[t]he defendants’ testimony established that from 1944 on, they and their ancestor in title ... possessed the property as owners, up to the fence line.” Livingston, 589 So.2d at 603.

Thus, based on the foregoing case law and statutes, we find the trial court was not clearly wrong in finding that Mr. Fel-ton had proven prescriptive title to the property in dispute. See Campbell, 13-2062 at p. 8, 181 So.3d at 47.

CONCLUSION

For the foregoing reasons, we affirm the trial court’s judgment declaring Mr. Felton the owner of the property in dispute and dismissing the plaintiffs’ claims with prejudice. All costs of this appeal are cast to the appellants, Crystal A. Smith and Gwendolyn Smith.

AFFIRMED.

WHIPPLE, C.J.,

concurring.

The crucial issue herein is whether Mr. Felton could tack his possession on to that of his deceased parents for purposes of acquisitive prescription when a succession has not been opened and a judgment of possession has not been rendered. While the majority correctly relies on and discusses prior jurisprudence, I believe that this issue can be resolved under the clear and unambiguous language of LSA-C.C. art. 936, as enacted by Acts 1997, No. 1421 § 1, eff. July 1,1999, which provides:

The possession of the decedent is transferred to his successors, whether testate or intestate, and if testate, whether particular, general, or universal legatees. A universal successor continues the possession of the decedent with all its advantages and defects, and with no alteration in the nature of the possession. A particular successor may commence a new possession for purposes of acquisitive prescription.

This article recognizes that all successors have rights that vest at the moment of death of the decedent. LSA-C.C. art. 936, Revision Commeni>-1997(b). Moreover, the clear language of the first paragraph of LSA-C.C. art. 936 provides that a decedent’s possession is transferred at the moment of death to his successors, whether testate or intestate, and if testate, whether particular, general, or universal legatees. Therefore, unless there is some reason that this article should not apply, pursuant to the clear language of LSA-C.C. art. 936, Mr, Felton was able to continue the possession of his parents, he., the decedents, for purposes of acquisitive prescription even in the absence of the opening of a succession and a judgment of possession.

Accordingly, I concur in the result reached by the majority, as I would affirm the decision of the trial court on the basis of LSA-C.C. art. 936.

      . We observe that in both the original and amended written reasons for judgment, the trial court indicated that the court would sign a written judgment in conformity with its ruling denying the motion for new trial once a judgment was submitted for signature, but no such signed judgment appears in the record before us. The deputy clerk of court, however, did certify that notice of the trial court’s written reasons and amended written reasons for judgment, in which it denied the motion for new trial, was mailed to counsel of record on December 9, 2015, and December 30, 2015, respectively,

      . According to the certification that appears on the July 6, 2015 judgment, notice of the judgment was mailed to counsel of record on July 9, 2015, by the deputy clerk of the trial court. The plaintiffs filed a combined motion to enroll new counsel and motion for new trial on July 24, 2015. In that combined pleading, plaintiffs pointed out that notice of the July 6, 2015 judgment was mailed to counsel for the plaintiffs at a North Broad address rather than the address counsel had listed on pleadings filed with the trial court.
      While on its face, the motion for new trial appears to be untimely, see La. C.C.P. art. 1974, because the notice sent by the trial court was not mailed to the proper address and the mistake in mailing is not attributable to counsel for the plaintiff, the motion for new trial is deemed timely. See In re Succession of Hendrix, 08-86, pp. 5-6 (La. App. 5th Cir. 8/19/08), 990 So.2d 742, 746, writ denied, 08-2498 (La. 1/9/09), 998 So.2d 729. Thus, the plaintiffs’ motion for devolutive appeal, filed well within the 60-day time period allowed after the ruling on the motion for new trial, is also timely. See La. C.C.P. art. 2087.

      . In their brief on appeal, plaintiffs allege that a judgment of possession was not issued to Minerva Sheppard (Mr. Felton’s grandmother) from Walter Sheppard’s estate. However, the October 20, 1965 judgment of possession placed into evidence by Mr. Felton is captioned "Succession of Walter Sheppard and his wife, Minerva Felt Sheppard.” Further, the judgment contains the following decree:
      IT IS ORDERED, ADJUDGED AND DECREED that Minerva Felt Sheppard be and she is hereby recognized as the surviving spouse of Walter Sheppard and, as such, entitled to the ownership and possession of any and all property belonging to the community of acquets and gains formerly existing between her and Walter Sheppard and more particularly the property hereinafter described.

      . No question has been raised as to whether Mr. Felton is truly the child of Raymond Felton Sr. and Ella Mae Felton.

      . Although not expressly assigned as error, in their brief on appeal, the plaintiffs also argue that the legal description for the municipal address 31980 Lacroix Road contained in the July 6, 2015 judgment is incorrect. Instead, they contend the proper legal description is the legal description of the property that the plaintiffs obtained from the succession of their mother. However, during the cross examination of the plaintiffs’ expert witness in civil engineering and land surveying, Charles St. Romain, he admitted that plaintiffs’ property description indicated that their property fronted on what is now referred to as Bucket Drive, whereas the legal description of the property claimed by Mr. Felton indicates the property fronts on Lacroix Road. When further asked if it was possible whether a stake Mr. St. Romain represented as being the northeast corner of the plaintiffs’ property was actually the stake marking Mr. Felton's property, the expert responded "[tjhat’s a possibility, yes.” Further, on re-examination by counsel for the plaintiffs, Mr. St. Romain was asked if Mr. Felton’s property description in any way referred to Dorcy Street, and the expert replied, ”[n]o.”

      . See Kathryn Venturatos Lorio, Seizen After the 1997 Revisions, 10 La. Civ. L. Treatise, Successions and Donations § 4:11 (2d ed.).


source: Caselaw Access Project

author: GUIDRY, J.

license: Public Domain

text:
    Joseph M. DORTCH v. JANE DOE & CHRYSLER GROUP, LLC
    NUMBER 2016 CA 0933
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: APRIL 06, 2017

      Steven E. Adams, Baton Rouge, LA, Counsel for Plaintiff/Appellant, Joseph M. Dortch
    Gary G. Hebert, Eugene Terk, Charles S. Smith, New Orleans, LA, Counsel for Defendant/Appellee, FCA US LLC (formerly known as Chrysler Group, LLC)
    BEFORE: WHIPPLE, C.J., GUIDRY, and McClendon, jj.
   GUIDRY, J.

lain this products liability action, the plaintiff appeals the dismissal of his claims against an automobile manufacturer by summary judgment. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

In the summer of 2012, Joseph M. Dortch drove his 2012 Jeep Cherokee off the road as he was traveling west on a roadway in Ascension Parish. According to Mr. Dortch, an unknown driver crossed the center line of the two-lane highway, causing him to drive off 'the roadway into an adjacent ditch. Mr. Dortch sustained several injuries and was transported from the accident scene by ambulance. Following the accident, Mr. Dortch filed a claim with his automobile liability insurer, State Farm Mutual Automobile Insurance Company. The vehicle was declared a total loss by State Farm, which subsequently sold the vehicle for salvage in August 2012.

On May 29, 2013, Mr. Dortch filed a petition for damages against Jane Doe, the unknown driver of a small, white automobile that Mr. Dortch alleged swerved into his lane of travel and forced him to drive off the road. Mr. Dortch also named Chrysler Group, LLC as a defendant in the petition, alleging that the failure of any of the front or side airbags to deploy was an additional proximate and contributing cause of the injuries he sustained in the accident. Mr. Dortch therefore claimed that the airbags in his vehicle were unreasonably dangerous. Chrysler Group, LLC generally denied any liability in answer to Mr, Dortch’s petition. ' ■

On February 17, 2016, FCA US LLC, which was formerly the Chrysler Group, LLC, filed a motion for summary judgment, alleging that Mr. Dortch had l.sinsufficient evidence to carry his burden of proof at trial, because he no longer possessed the 2012 Jeep Cherokee nor any parts of the vehicle, including the allegedly defective airbag system. In support of its motion for summary judgment, FCA US LLC pointed out that Mr. Dortch had raised three of the four exclusive theories of recovery provided under the Louisiana Products Liability Act (LPLA), La. R.S. 9:2800.51-2800.60. See La. R.S. 9:2800.52. Relative to the three theories raised, FCA US LLC pointed out the following:

As to his first theory, defective construction or composition, plaintiff did not show any deviation from any specifications or performance standards for the vehicle or from otherwise identical vehicles by the same manufacturer, a required element of proof under the LPLA. Second, regarding design defect, he failed to identify any alternative designs that he contends could have prevented his injury, also as required under the LPLA. Third, as to inadequate warnings, plaintiff did not identify a specific warning he contends is inadequate or explain the manner in which the airbag system was unreasonably dangerous to an extent beyond that which would be contemplated by an ordinary user of the product, all required elements of a warnings claim under the LPLA.
Indeed, plaintiff has not been able to produce the most important piece of evidence in an automotive products liability case: the subject vehicle.

FCA US LLC conceded that the airbags did not deploy in Mr. Dortch’s accident; nevertheless, it argued “plaintiff has no evidence that the subject vehicle’s airbags should have deployed in the accident, that the nondeployment was due to a product defect, or that the so-called product defect caused his injuries.” Further, FCA US LLC argued that plaintiff would be unable to meet his burden of proving that the doctrine of res ipsa loquitur applied.

Mr. Dortch filed an opposition to the motion for summary judgment asserting a list of five facts that he contended to be genuinely disputed and offering photographs and an inspection report produced by State Farm and his own affidavit as evidence of the extent of the damage sustained by the subject vehicle and of the 14fact that the airbags in the subject vehicle did not deploy. In addition to citing the law on res ipsa loquitur, Mr. Dortch further argued that under the current version of La. C.C.P. art. 966, summary judgment should be denied because discovery in the case was still open, and he was still seeking to locate the subject vehicle.

The trial court held a hearing on the motion for summary judgment on March 22, 2016, and after hearing the arguments of the parties, the court stated that in the absence of the subject vehicle, Mr. Dortch could not go forward with his claim. Further, in regard to the doctrine of res ipsa loquitur, the court stated that the jeep was not in the exclusive control of Chrysler and the circumstances were not so unusual that an inference of negligence could be raised. Moreover, the court found that res ipsa loquitur could not apply as there was no evidence available from which to draw actual inferences. Hence, the trial court granted FCA US LLC’s motion for summary judgment, and by a judgment signed March 28, 2016, dismissed all of Mr. Dortch’s claims against FCA US LLC with prejudice. Mr. Dortch devolutively appealed.

SUMMARY JUDGMENT

The summary judgment procedure is favored and designed to secure the just, speedy, and inexpensive determination of every action, except those disallowed by La. C.C.P. art. 969. La. C.C.P. art. 966 (A)(2). After an opportunity for adequate discovery, a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(A)(3).

The burden of proof rests with the mover. Nevertheless, if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover’s burden on the motion does not require him to negate all essential elements of the adverse part/s claim, action, or defense, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. The Lburden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law.

La. C.C.P. art. 966(D)(l)(emphasis added). Once the motion for summary judgment has been properly supported by the moving party, the failure of the non-moving party to produce evidence of a material factual dispute mandates the granting of the motion. Reynolds v. Bordelon, 14-2371, p. 4 (La. 6/30/15), 172 So.3d 607, 611. 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. Mederos v. St. Tammany Parish Government, 15-1602, p. 6 (La.App. 1 Cir. 7/11/16), 199 So.3d 30, 34.

DISCUSSION

Under the LPLA, “[t]he manufacturer of a product shall be liable to a claimant for damage proximately caused by a characteristic of the product that renders the product unreasonably dangerous when such damage arose from a reasonably anticipated use of the product by the claimant or another person or entity.” La. R.S. 9:2800.54(A). A product may be considered unreasonably dangerous if and only if the product is unreasonably dangerous in construction or composition, as provided in La. R.S. 9:2800.55; in design, as provided in La. R.S. 9:2800.56; because an adequate warning about the product has not been supplied, as provided in La. R.S. 9:2800.57; or because the product does not conform to the manufacturer’s express warranty about the product, as provided in La. R.S. 9:2800.58. La. R.S. 9:2800.54(B).

In opposing the motion for summary judgment, Mr. Dortch failed to offer any evidence to show: (1) that the jeep deviated from the manufacturer’s specifications to support his claim of a construction or composition defect; (2) that an alternative design existed to support his claim of a design defect; or (3) that any | (¡specific warning was inadequate or deficient to support his claim of inadequate warnings. On appeal, Mr. Dortch does not deny any of these failures, but instead argues that res ipsa loquitur should apply to establish that the airbags in the subject vehicle were defective under one of the three identified theories.

The plaintiff in a negligence case may meet his burden of proof by presenting both direct and circumstantial evidence. Thomas v. Comfort Center of Monroe, LA, Inc., 10-0494, pp. 15-16 (La.App. 1 Cir. 10/29/10), 48 So.3d 1228, 1238. Circumstantial evidence is evidence of one fact, or of a set of facts, from which the existence of the fact to be determined may reasonably be inferred. When direct evidence of a defendant’s negligence is not available, the doctrine of res ipsa loquitur assists the plaintiff in presenting a prima facie case of negligence. Lawson v. Mitsubishi Motor Sales of America, Inc., 05-0257, p. 21 (La. 9/6/06), 938 So.2d 35, 49.

Res ipsa loquitur is not a substantive legal tenet, but rather an eviden-tiary doctrine under which a tort claim may be proved by circumstantial evidence. It applies when the accident would not normally occur in the absence of negligence, there is an absence .of direct evidence to explain the activities leading to the injury, and the accident or injury was caused by an agency or instrumentality within the actual or constructive control of the defendant. Gisclair v. Bonneval, 04-2474, p. 5 (La.App. 1 Cir. 12/22/05), 928 So.2d 39, 42. Thus, the doctrine generally may be applied when three requirements are met: (1) the circumstances surrounding the accident are so unusual that, in the absence of other pertinent evidence, there is an inference of negligence on the part of the defendant; (2) the defendant had exclusive control over the thing causing the injury; and (3) the circumstances are such that the only reasonable and fair conclusion is that the accident was due to a 17breach of duty on the defendant’s part. Thomas, 10-0494 at p. 16, 48 So.3d at 1239. Clearly, a car manufacturer has a duty to the consumer to provide a safe vehicle, including a properly functioning supplemental restraint system. Lawson, 05-0257 at p. 21, 938 So. 2d at 50.

Traditionally, the evidentiary doctrine of res ipsa loquitur has been used in tort actions to establish negligence on the part of a defendant; however, the doctrine may also be utilized in the context of a products liability action. The defective nature of a product will not be “presumed” by utilizing this doctrine, but rather, it simply gives the plaintiff the right to place on the scales, along with proof of the accident and enough of the attending circumstances to invoke the rule, an inference of the unreasonably dangerous nature of a product sufficient to shift the burden of proof. Lawson, 05-0257 at p. 20, 938 So.2d at 49.

In this case, however, the trial court properly concluded that the doctrine should not apply as Mr. Dortch presented no evidence to establish that the only reasonable and fair conclusion is that the airbags were unreasonably dangerous due to a breach of the duty owed by FCA US LLC. FCA US LLC never disputed and even conceded that the airbags in the subject vehicle did not deploy; however, other than Mr. Dortch’s mere assertion that the airbags should have deployed, he presented no evidence to support his claim that the airbags should have deployed under the circumstances. Moreover, it has been held that there are many accidents in which the failure of the airbag to deploy is consistent with its proper functioning. Batiste v. General Motors Corporation, 00-2027, p. 5 (La.App. 4th Cir. 5/23/01), 802 So. 2d 686, 689, writ denied, 01-2193 (La. 11/9/01), 801 So. 2d 375; see also Reynolds, 14-2371 at p. 8, 172 So. 3d at 613-614. Thus, it cannot be said that in common experience, the failure of the airbags to deploy would not normally occur in the absence of the airbags being defective. See Cangelosi v. Our Lady of the Lake Regional Medical Center, 564 So. 2d 654, 665-66 (La.1989)(on rehearing).

Further in regard to the insufficiency of the evidence presented by Mr. Dortch, he maintains on appeal that summary judgment should not have been granted because the discovery period was still open, and by law, summary judgment could only be granted “[a]fter an opportunity for adequate discovery.” See La. C.C.P. art. 966(A)(3). At the hearing on the motion for summary judgment, Mr. Dortch’s counsel also pointed out that no deadline had been set to disclose expert witnesses, and therefore, he argued, “I think it is at least conceivable that we could produce an expert who could review all the evidence which I have discussed and say, based on my analysis of this, those bags should have deployed. We’re not there yet.”

It is not an abuse of the trial court’s wide discretion in discovery matters to entertain a motion for summary judgment before discovery has been completed. Trial courts in Louisiana have broad discretion when regulating pre-trial discovery, which discretion will not be disturbed on appeal absent a clear showing of abuse. It is within the trial court’s discretion to render a summary judgment or require further discovery. Duncan v. Poydras, 10-2094, pp. 3-4 (La. App. 1st Cir. 6/10/11), 68 So. 3d 1184, 1186.

The Third Circuit in Advance Products & Systems. Inc. v. Simon, 06-609, p. 5 (La. App. 3d Cir. 12/6/06), 944 So. 2d 788, 792, writ denied, 07-0026 (La. 3/9/07), 949 So. 2d 444 (quoting Simoneaux v. E.I. du Pont de Nemours and Co., Inc., 483 So. 2d 908, 912-13 (La. 1986)) observed:

There is no absolute right to delay action on a motion for summary judgment until discovery is completed. Under C.C.P. 967, a trial judge clearly has the discretion to issue a summary judgment after the filing of affidavits, or the judge may allow further affidavits or discovery to take place.
RThe only requirement is that the parties be given a fan opportunity to present their claim. Unless plaintiff shows a probable injustice a suit should not be delayed pending discovery when it appears at an early stage that there are no genuine issues of fact.

See also City of Alexandria v. Ratcliffe Construction in Company, LLC, 11-1200, pp. 6-7 (La. App. 3d Cir. 2/8/12), 95 So. 3d 1076, 1080-81 (wherein the court affirmed the summary judgment granted by the trial court, despite the opponent’s contention that the ruling was premature because the trial court had not yet issued a scheduling order setting a cutoff date for submission of its expert report).

Mr. Dortch filed suit in May 2013, and was aware as early as December 2013, that the subject vehicle was missing. Thereafter, in early 2014, counsel made some initial attempts to locate the vehicle without success. FCA US LLC did not file its motion for summary judgment until February 2016. Hence, Mr. Dortch had approximately two years to search for the subject vehicle, as well as to investigate the possibility of securing the testimony of an expert who could opine, based on existing evidence, whether the airbag system in the subject vehicle was defective. Considering these facts, we cannot say that the trial court erred.

CONCLUSION

On de novo review of the record before us, we find no error in the trial court’s decision to render summary judgment dismissing the plaintiffs claims against the defendant automobile manufacturer. Consequently, we affirm. All costs of this appeal are cast to the plaintiff-appellant, Joseph M. Dortch.

AFFIRMED.

      . Because there was no physical contact between Mr. Dortch’s vehicle and the vehicle that allegedly caused him to run off the road and because there was no independent and disinterested witness to the accident, Mr. Dortch’s claim was covered under his collision coverage rather than his uninsured motorist coverage. See La. R.S. 22:1295(l)(f).

      . The LPLA provides the exclusive theories under which a party can pursue a claim against a manufacturer for an alleged product defect. La. R.S, 9:2800.52; Reynolds v. Bordelon, 14-2371, p. 6 (La. 6/30/15), 172 So.3d 607, 612-13.

      . However, jurisprudence has relaxed the exclusive control element associated with res ipsa loquitur. Juris v. Ford Motor Company, 32,125, p. 8 (La. App. 2d Cir. 1/6/00), 752 So. 2d 260, 265.


author: McDonald, j.

text:
    LOUISIANA CHEMICAL ASSOCIATION v. STATE of Louisiana, THROUGH the LOUISIANA DEPARTMENT OF REVENUE; Hon. Tim Barfield, in his official capacity as Secretary of the Louisiana Department of Revenue; the Louisiana Legislature, through Hon. John A. Alario, President of the Louisiana Senate and Hon. Charles E. “Chuck” Kleckley, Speaker of the Louisiana House of Representatives; the Louisiana Tourism Promotion District, through the Chairman of its Board of Directors, Hon. Harrison Smith; and Hon. Bobby Jindal, in his official capacity as Governor of Louisiana
    2016 CA 0501
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: APRIL 7, 2017

      Linda S. Akchin, Christopher J. Dichar-ry, Baton Rouge, Louisiana, Attorneys for Plaintiffs/Appellants, Louisiana Chemical Association, Alma Plantation, L.L.C., Louisiana Pigment Company, L.P., Phillips 66 Company, Phillips 66 Pipeline, L.L.C., and Phillips 66 Partners Holdings, L.L.C.
    Henry T. Graham, Jr., Robert D. Schromm, Baton Rouge, Louisiana, Attorneys for Plaintiff/Appellant, Louisiana Chemical Association
    Alfred W. Speer, Glenn A Koepp, Jerry J. Guillot, Baton Rouge, Louisiana, Attorneys for Defendant/Appellee, Louisiana Legislature
    Patricia H. Wilton, Baton Rouge, Louisiana, Attorney for Defendant/Appellee, State of Louisiana
    Antonio Charles Ferachi, Baton Rouge, Louisiana, Attorney for Defendant/Appel-lee, Louisiana Department of Revenue
    BEFORE: PETTIGREW, McDonald, and calloway , jj.

       Judge Curtis A. Calloway, retired, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

   McDonald, j.

|aThis is an appeal from a summary judgment dismissing the plaintiffs’ claims with prejudice. After a de novo review, we affirm.

FACTS AND PROCEDURAL HISTORY

The Louisiana Chemical Association, Alma Plantation, L.L.C., Louisiana Pigment Company, L.P., Phillips 66 Company, Phillips 66 Pipeline, L.L.C., and Phillips 66 Partners Holdings, L.L.C., (collectively the plaintiffs) filed a petition for declaratory judgment on July 1, 2015, naming as defendants the State of Louisiana, through the Louisiana Department of Revenue; Tim Barfield, in his official capacity as the Secretary of the Louisiana Department of Revenue; the Louisiana Legislature, through John Alario, President of the Louisiana Senate; Charles E. “Chuck” Kleckley, Speaker of the Louisiana House of Representatives; the Louisiana Tourism Promotion District, through the Chairman of its Board of Directors, Harrison Smith; and Bobby Jindal, in his official capacity as Governor of Louisiana. The plaintiffs asserted that the defendants were collectively responsible for the adoption, administration, and enforcement of House Concurrent Resolution (HCR) 8, passed during the 2015 legislative session, which suspended certain exemptions for State sales tax laws from July 1, 2015 until 60 days after the 2016 Regular Session of the Legislature. The plaintiffs asserted that HCR 8 was unconstitutional because it purported to suspend a law without the required two-thirds vote of each house of the Legislature; that it did not satisfy the requirements 14of the Louisiana Constitution; that it was in direct conflict with existing law, and thus could not be given effect; and alternatively, that it was im-permissibly vague and ambiguous, such that it violated due process. The plaintiffs prayed that HCR 8 be declared unconstitutional, and for all other reasonable relief.

The defendants filed a joint motion for summary judgment on November 20, 2015, The defendants asserted that: the financial condition of the State was such that the monies lost to the exemption listed in HCR 8 were critically needed to avoid cessation of vital services; and that legislative instruments were presumed to be constitutional. Further, defendants asserted that there were no genuine issues of material fact that: the plaintiffs had failed to establish that HCR 8 violated the constitution; the plaintiffs had failed to establish that HCR 8 was adopted in violation of the Louisiana Constitution; the plaintiffs had failed to establish that HCR 8 was an unconstitutional amendment of existing laws; the plaintiffs had failed to establish that HCR 8 conflicted with the provisions of Section 3 of Act No. 4 of the 2004 First Extraordinary Legislature; and that the plaintiffs had failed to establish HCR 8 was impermissibly vague and ambiguous. The defendants asked that summary judgment be granted in their favor, that the case be dismissed with prejudice, and that the plaintiffs be cast with costs.

The plaintiffs filed a cross motion for summary judgment on November 20, 2015. The plaintiffs asserted that there was no genuine issue of material fact and that as a matter of law they were entitled to judgment declaring that HCR 8 was ineffective, null and void, or unconstitutional on any or all of the multiple grounds set forth in their petition, for any and all other reasonable relief, and that the defendants be cast with all costs.

IftA hearing on the cross motions for summary judgment was held on December 14, 2015. Thereafter, by judgment dated January 6, 2016, the district court denied the plaintiffs’ motion for summary judgment, granted the defendants’ joint motion for summary judgment, and dismissed the plaintiffs’ claims with prejudice. The plaintiffs have appealed the judgment and make the following assignments of error.

1. The District Court erred by denying Plaintiffs’ Motion for Summary Judgment on grounds that HCR 8 is inconsistent with, and superseded by, Act. No. 4 (1st Ex. Sess. 2004), § 3.

2. The District Court erred by denying Plaintiffs’ Motion for Summary Judgment on grounds of the unconstitutionality of HCR 8 under any or all of the following: La. Const, art. Ill, §§ 14, 15, 16, 18 and 20, and La. Const, art. VII, § 2.

3. The District Court erred by denying Plaintiffs’ Motion for Summary Judgment on grounds of the unconstitutional vagueness and ambiguity of HCR 8.

THE STANDARD OF REVIEW

After a thorough review of the record before us, we note that the material facts of this case are not in dispute. The real issue before us is whether the district court correctly interpreted and applied the law. Appellate review of questions of law is simply a review of whether the trial court was legally correct or legally incorrect. On legal issues the appellate court gives no weight to the findings of the trial court, but exercises its constitutional duty to review questions of law and renders judgment on the record. Louisiana Hosp. Ass’n v. State, 2013-0579 (La.App. 1 Cir. 12/30/14), 168 So.3d 676, 685, writ denied, 2015-0215 (La. 5/1/15), 169 So.3d 372.

| ANALYSIS

House Concurrent Resolution 8 provides:

THEREFORE, BE IT RESOLVED that the Legislature of Louisiana hereby suspends all of the exemptions from the tax levied pursuant to R.S. 47:331 for sales of steam, water, electric power or energy, and natural gas, including but not limited to the exemption in R.S. 47:305(D)(l)(b), (c), (d), and (g), and any other exemptions provided in those portions of Chapter 2 of Subtitle II of Title 47 of the Louisiana Revised Statutes of 1950 that provide for exemptions for business utilities from the taxes imposed therein.
BE IT FURTHER RESOLVED that that this suspension shall become effective on July 1, 2015 and shall extend through the sixtieth day after final adjournment of the 2016 Regular Session of the Legislature of Louisiana. ■

ASSIGNMENT OF ERROR NO. 1

In this assignment of error, the plaintiffs assert that the district court erred in denying their motion for summary judgment on the grounds that HCR 8 is inconsistent with, and superseded by, Acts 2004, No. 4, § 3 (1st Ex. Sess.).

Acts 2004, No. 4, § 3 (1st Ex. Sess.) provides that:

It is the intention of the legislature that the tax exemptions made inapplicable, inoperable, and of no effect for the period July 1, 2004, through June 30, 2009, by virtue of the provisions of R.S. 47:302(R) and 331 (P) shall resume, commence, and become effective on July 1, 2010.

The plaintiffs aver that the Legislature’s failure to specifically state that it was suspending Acts 2004, No. 4, § 3 (1st Ex. Sess.) renders HCR 8 null and void. However, the objective of HCR 8 is to suspend the enacted and effective' exemptions for business utilities contained in Chapter 2 of Subtitle II of Title 47, not to suspend the temporary inoperability of these exemptions, which inoperability had ceased five years earlier.

The sources of law are legislation and custom. La. C.C. art, 1. Legislation is a solemn expression of legislative will. La. C.C. art. 2. It is a basic rule of statutory-interpretation that, if a statute is susceptible of two constructions, one of |7which will render it constitutional and the other of which will render it unconstitutional, or raise grave and doubtful constitutional questions, the court will adopt the interpretation of the statute which, without doing violence to its language, will maintain its constitutionality. Metro Riverboat Associates, Inc. v. Louisiana Gaming Control Board, 2001-0185 (La. 10/16/01), 797 So.2d 656, 662, citing Hondroulis v. Schuhmacher, 553 So.2d 398, 416-17 (La. 1989) (on rehearing). The latest expression of legislative will is considered controlling and prior enactments in conflict therewith are considered as tacitly repealed. McLane Southern, Inc. v. Bridges, 2011-1141 (La. 1/24/12), 84 So.3d 479, 485.

We And that HCR 8 is a later expression of legislative will, and after a de novo review, we find no merit to the argument that HCR 8 is inconsistent with, and superseded by, Acts 2004, No. 4, § 3 (1st Ex. Sess.)

ASSIGNMENT OP ERROR NO. 2

In this assignment of error, the plaintiffs assert that the district court erred in denying their motion for summary judgment on grounds of the unconstitutionality of HCR 8 under any or all of the following: La. Const, art. Ill, §§ 14, 15, 16,18 and 20, and La. Const, art. VII, § 2.

Louisiana Constitution article III, § 14 provides:

The style of a law enacted by the legislature shall be, “Be it enacted by the Legislature of Louisiana.” It shall be unnecessary to repeat the enacting clause after the first section of an act.

Louisiana Constitution article III, § 15 provides:

(A) Introduction; Title; Single Object; Public Meetings. The legislature shall enact no law except by a bill introduced during that session, and propose no constitutional amendment except by a joint resolution introduced during that session, which shall be processed as a bill. Every bill, except the general appropriation bill and bills for the enactment, rearrangement, codification, or revision of a system of laws, shall be confined to one object. Every bill shall contain a brief title indicative of its object. Action on any matter intended to have the effect of law shall be taken only in open, public meeting.
| «(B) No General Reference. A bill enacting, amending, or reviving a law shall set forth completely the provisions of the law enacted, amended, or revived. No system or code of laws shall be adopted by general reference to it.
(C) Germane Amendments. No bill shall be amended in either house to make a change not germane to the bill as introduced.
(D) Three Readings. Each bill shall be read at least by title on three separate days in each house. No bill shall be considered for final passage unless a committee has held a public hearing and reported on the bill.
(E) Rejected Bills; Reconsideration. No bill rejected by either house may again be introduced or considered during the same session by the house which rejected it without the consent of a majority of the members elected to that house.
(F) Concurrence in Amendments. No amendment to a bill by one house shall be concurred in by the other, and no conference committee report shall be concurred in by either house except by the same vote required for final passage of the bill. The vote thereon shall be by record vote.
(G) Majority Vote; Record Vote. No bill shall become law without the favorable vote of at least a majority of the members elected to each house. Final passage of a bill shall be by record vote. In either house, a record vote shall be taken on any matter upon the request of one-fifth of the elected members.

Louisiana Constitution article III, § 16 provides:

(A) Specific Appropriation for One Year. Except as otherwise provided by this constitution, no money shall be withdrawn from the state treasury except through specific appropriation, and no appropriation shall be made under the heading of contingencies or for longer than one year.
(B) Origin in House of Representatives. All bills for raising revenue or appropriating money shall originate in the House of Representatives, but the Senate may propose or concur in amendments, as in other bills.
(C) General Appropriation Bill; Limitations. The general appropriation bill shall be itemized and shall contain only appropriations for the ordinary operating expenses of government, public charities, pensions, and the public debt or interest thereon.
(D) Specific Purpose and Amount. All other bills for appropriating money shall be for a specific purpose and amount. ln(E) Extraordinary Session. Except for expenses of the legislature, a bill appropriating money in an extraordinary session convened after final adjournment of the regular session in the last year of the term of office of a governor shall require the favorable vote of three-fourths of the elected members of each house.

Louisiana Constitution article III, § 18 provides:

(A) Gubernatorial Action. If the governor does not approve a bill, he may veto it. A bill, except a joint resolution, shall become law if the governor signs it or if he fails to sign or veto it within ten days after delivery to him if the legislature is in session on the tenth day after such delivery, or within twenty days after delivery if the tenth day after delivery occurs after the legislature is adjourned.
(B) Veto Message. If the governor vetoes a bill, he shall return it to the legislature, with his veto message within twelve days after delivery to him if the legislature is in session. If the governor returns a vetoed bill after the legislature adjourns, he shall return it, with his veto message, as provided by law.
(C) Veto Session. (1) A bill vetoed and returned and subsequently approved by two-thirds of the elected members of each house shall become law. The legislature shall meet in veto session in the state capital at noon on the fortieth day following final adjournment of the most recent session, to consider all bills vetoed by the governor. If the fortieth day falls on Sunday, the session shall convene at noon on the succeeding Monday. No veto session shall exceed five calendar days, and any veto session may be finally adjourned prior to the end of the fifth day upon a vote of two-thirds of the elected members of each house.
(2) No veto session shall be held if a majority of the elected members of either house declare in writing that a veto session is unnecessary. The declaration must be received by the presiding officer of the respective houses at least five days prior to the day on which the veto session is to convene.

Louisiana Constitution article III, § 20 provides:

Only the legislature may suspend a law, and then only by the same vote and, except for gubernatorial veto and time limitations for introduction, according to the same procedures and formalities required for enactment of that law. After the effective date of this constitution, every resolution suspending a law shall fix the period of suspension, which shall not extend beyond the sixtieth day after final adjournment of the next regular session.

Louisiana Const, article- III, § 20 provides that the Legislature has the power to suspend a law by the same vote required for final passage of the law proposed to be suspended. Under La. Const, art. Ill, § 15(G), this requires only a majority | invote. The plaintiffs’ argument that La. Const. Art. Ill, § 20 is limited when the Legislature is suspending a tax exemption is not supported by the clear language of La. Const, art. Ill, § 15(G), which provides that no bill shall become law without the favorable vote of at least a majority of the members elected to each house.

Louisiana Constitution article VII, § 2 provides:

The levy of a new tax, an increase in an existing tax, or a repeal of an existing tax exemption shall require the enactment of a law by two-thirds of the elected members of each house of the legislature.

The plaintiffs’ argument that HCR 8 must comply with the requirements applicable to levying of a tax or repeal of a tax exemption, that is, two-thirds vote under La. Const, art, VII, § 2, stems from a conclusion that a suspension of a tax exemption is the same as a repeal of a tax exemption. Suspension is the act of temporarily delaying, interrupting, or terminating something. Black’s Law Dictionary (10th ed. 2014). Repeal is the abrogation of an existing law by express legislative act. Black’s Law Dictionary (,10th ed. 2014). Also, we note that tax exemptions themselves are not listed in La. Const, art. VII, § 2, and it is a tax exemption that is being suspended.

The repeal of a law may be accomplished only by the Legislature passing a bill and the bill becoming law, after presentment to the Governor. This effects a permanent change in our law. La. Const, arts. Ill, §§ 15(A) and 17. The suspensive resolution found in HCR 8 does not resolve to enact, amend, or repeal any law. HCR 8 does not contain an enacting clause as otherwise required by our constitution for the enactment of law. La. Const, art. Ill, § 14. The resolution is not a bill, which is the required vehicle for enactment of a law. La. Const, art. Ill, § 15.

|nIn BP Oil Co. v. Plaquemines Parish Gov’t, 93-1109 (La. 9/6/94), 651 So.2d 1322, the trial court recognized that the Legislature provided at various times for suspensions of some of the exemptions provided for in La. R.S. 47:305D of certain personal property from sale and use taxes, and provided that the exemptions were applicable to both state and local taxes. The trial court in that case, reasoning that the suspension of an exemption has the same effect as repealing the exemption during the relevant period, concluded that suspensions of exemptions must also be equally applied to local governments, school boards, and the state. However, the Louisiana Supreme Court found “that we need not decide in this case the meaning or the scope of any uniformity requirement for exemptions or exclusions in [La. Const, art. VI, § 29(D), because the present case involves only the suspension of a law enacted by the Legislature.” BP Oil Co., 651 So.2d at 1337 (per curiam) (on rehearing).

The language of La. Const. Art. VII, § 2 does not provide that the suspension of an exemption of an existing tax shall require the enactment of a law by two-thirds of the elected members of each house of the legislature. A repeal of an existing tax would be a permanent change. A suspension (which is time-limited) of an exemption is not the same thing as a permanent repeal.

Suspensive resolutions are special concurrent resolutions authorized by La. Const. Article III, § 20 of the constitution to be given the force and effect of law. Suspensive resolutions suspend the operation of all or part of an existing law for a specified period of time. The suspension is temporary and does not result in a repeal or amendment of the law. A suspensive resolution cannot be used to suspend provisions of the constitution. 20 La. Civ. L. Treatise, Legis. Law & Proc. § 2:2 Legislative instruments (2016 ed.)

The plaintiffs also assert that HCR 8 is revenue raising legislation and that pursuant to La. Const, art. Ill, § 16, all bills for revenue raising must originate in |1athe house. However, as we have previously stated, HCR 8 is not a bill. Plaintiffs cite Louisiana Federation of Teachers v. State, 2013-0120 (La. 5/7/13), 118 So.3d 1033, in support of their argument. In that case, the Louisiana Supreme Court considered a constitutional challenge to a Senate Concurrent Resolution that allegedly failed to comply with constitutional procedural limitations upon the Legislature, and found that it was necessary to examine both the form and the substance of the legislative measures at issue. In that case, the Senate Concurrent Resolution was found to be unconstitutional, as it was a new matter, intended to have the effect of law. The plaintiffs maintain that, like the Senate Concurrent Resolution in Louisiana Federation of Teachers, HCR 8 is also in substance a bill to raise revenue.

However, we find that the plaintiffs are essentially just repeating their same argument that additional procedures and formalities should be required for the adoption of regulations suspending tax exemptions. In Harrah’s Bossier City Investment Co., LLC v. Bridges, 2009-1916 (La. 5/11/10), 41 So.3d 438, 446, the Louisiana Supreme Court noted that:

[A] “tax exemption is a provision that exempts from tax a transaction that would, in the absence of the exemption, otherwise be subject to tax. That is, there has been a statutory decision not to tax a certain transaction that is clearly within the ambit and authority of the taxing statute.” Bruce J. Oreck, Louisiana Sales & Use Taxation, (2d ed.1996), § 3.1. An exclusion, on the other hand, “relates to a transaction that is not taxable because it falls outside the scope of the statute giving rise to the tax, ab initio.”... Id.

The levy of the initial tax, preceding the decision to grant an exemption, is the manner in which the Legislature raises revenue. Since the tax levy raises the revenues and since the granting of the exemption does not change the underlying tax levy, we find that suspending an exemption is not a revenue raising measure.

I! ¡¡After a de novo review, we find that HCR 8 does not violate La. Const, art. Ill, §§ 14, 15, 16, 18, or 20, nor does it violate La. Const, art. VII, § 2. This assignment of error has no merit.

ASSIGNMENT OF ERROR NO. 3

In this assignment of error, the plaintiffs maintain that the district court erred in failing to grant their motion for summary judgment on the grounds that HCR 8 is unconstitutionally vague and ambiguous. The plaintiffs assert that HCR 8 is void in multiple respects. First, they maintain that it makes no reference to La. R.S. 51:1286; second, that it does not cross-reference the statutes that make the sales tax exemptions in La. R.S. 47:305 applicable to the sales tax imposed by La. R.S. 47:331 and 51:1286(A); and third, that it purports to suspend “any other exemptions” for “business utilities” without defining the term “business utilities.”

A law is fatally vague and offends due process when a person of ordinary intelligence does not have a reasonable opportunity to know what is prohibited so that he may act accordingly or if the law does not provide a standard to prevent arbitrary and discriminatory application. Laws regulating businesses are held to a lesser standard of “definiteness” than statutes imposing criminal penalties. Med Exp. Ambulance Serv., Inc. v. Evangeline Par. Police Jury, 96-0543 (La. 11/25/96), 684 So.2d 359, 367.

A tax exemption is an exceptional privilege that must be expressly and clearly conferred in plain terms. Exemption provisions are strictly construed against the taxpayer claiming the benefit of an exemption and must be unequivocally and affirmatively established by the taxpayer. The taxpayer’s stringent burden is to overcome the judicial maxim that “to doubt is to deny the exemption.” Sherwood Forest Country Club v. Litchfield, 2008-0194 (La. 12/19/08), 998 So.2d 56, 61, modified in part on rehearing, 2008-0194 (La. 2/13/09), 6 So.3d 141. HCR 8 “suspends all of the exemptions from the tax levied |upursuant to R.S. 47:331 for sales of steam, water, electric power or energy, and natural gas”. After a de novo review, we do not find this language to be vague or ambiguous. This assignment of error has no merit.

CONCLUSION

For the foregoing reasons, the district court judgment, dated January 6, 2016, is affirmed. Costs are assessed against the Louisiana Chemical Association, Alma Plantation, L.L.C., Louisiana Pigment Company, L.P., Phillips 66 Company, Phillips 66 Pipeline L.L.C., and Phillips 66 Partners Holdings, L.L.C.

AFFIRMED.

      . Alma Plantation, L.L.C., Louisiana Pigment Company, L.P., Phillips 66 Company, Phillips 66 Pipeline L.L.C., and Phillips 66 Partners Holdings, L.L.C., were added as plaintiffs by an amended petition filed on August 10, 2015.

      . Former Governor Jindal filed an exception of no cause of action asserting that he was not a proper party defendant, and the exception was granted by the district court, The judgment dismissing the claim against Governor Jindal was signed on October 21, 2015,

      . Although the judgment is actually dated January 6, 2015, as the hearing was held on December 14, 2015, this appears to be a clerical error.

      . However, a bill is not the only vehicle that carries the effect of law, as suspensive resolutions do also. See La. Const, art. Ill, § 2(A)(3)(a) and (4)(b).

      . The Court also considered a constitutional challenge to an Act, which was found to be constitutional in part and unconstitutional in part.


author: GREMILLION, Judge.

text:
    Todd CROCHET v. CALCASIEU PARISH POLICE JURY, et al.
    16-954
    Court of Appeal of Louisiana, Third Circuit.
    04/12/2017

      Jeffrey Charles Napolitano, Juge, Na-politano, Guilbeau, Ruli and Frieman, 3320 W. Esplanade Ave., North, Metairie, LA 70002, (504) 831-7270, COUNSEL FOR DEFENDANT/APPELLANT: Calcasieu Parish Police Jury
    Kevin Louis Camel, Cox, Cox, Filo, Camel & Wilson, LLC, 723 Broad St., Lake Charles, LA 70601, (337) 436-6611, COUNSEL FOR PLAINTIFF/APPEL-LEE: Todd Crochet
    Court composed of Marc T. Amy, Billy Howard Ezell, and Shannon J. Gremillion, Judges.
   GREMILLION, Judge.

| )D efendant/app ellant, the Calcasieu Parish School Board (CPSB) appeals the judgment in favor of plaintiff/appellee, its employee, Mr. Todd Crochet, which denied its claimed offset for disability benefits and awarded Mr. Crochet penalties and attorney fees. For the reasons that follow, we reverse and remand with instruction for the Workers’ Compensation Judge (WCJ) to enter a judgment consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

Mr. Crochet injured his left leg and ankle on March 2, 1998, while working with a power saw clearing a right-of-way in the course and scope of his employment with CPSB. He received weekly indemnity benefits of $348.58 until September 18, 2014, when CPSB reduced them to $251.72 because of its contributions on Mr. Crochet’s behalf to the Parochial Employees Retirement System (PERS). Until then, Mr. Crochet had received disability benefits from PERS in the amount of $982.75; however, this amount had changed through the years of his disability. On June 25, 2015, CPSB suspended Mr. Crochet’s benefits, claiming a credit for $42,232.19 in past disability benefits paid by PERS.

Mr. Crochet opposed the reduction and suspension of his weekly indemnity. The matter proceeded to trial. The parties submitted the matter on stipulations, exhibits, and briefs.

One of the exhibits introduced at trial was the deposition of Mr. Gary S. Curran of G.S Curran & Co., Ltd., which provides actuarial consulting for all nine statewide retirement plans, including, of course, PERS. Mr. Curran testified that PERS is divided into two plans, Plan A and Plan B. Each plan has a separate trust into which contributions are paid. Plan A is a defined-benefit plan that | ¡.incorporates tenure-based retirement, disability retirement, and survivor benefits, the latter two of which Mr. Curran termed “ancillary benefits.”

Sixty-two parishes participate in Plan A, and about 200 entities in all, including CPSB, participate in the plan. Payments into the PERS plans are not allocated to individual employees; however, the employees’ contributions to PERS are tracked. Each governmental entity’s annual contribution is fixed as a percentage of its total payroll, and the payments are made periodically. Allocations are also contributed by the State general fund, and a portion is funded by ad valorem taxes. These amounts and proportions change yearly. In establishing the rate each governmental entity must contribute, PERS makes no attempt to differentiate between tenure-based retirement and the ancillary benefits. The employee contributes between 9.25% and 9.5%, and that has consistently been the case since 1980. In 2015, employers contributed 10.5% of their total payrolls to fund PERS, and employees contributed 9.5%.

At trial, documents were introduced that showed the contributions, by percentage, between the employers and the employees, to PERS, from 1988 through 2001, the years Mr. Crochet contributed to PERS. Those showed that the following percentages were paid by employers:

1988 7.15%

1989 7.15%

1990 8.50%

1991 8.25%

1992 9.25%

1993 8.75%

1994 8.25%

1995 8.00%

1996 7.25%

1997 7.75%

1998 7.75%

1999 7.75%

2000 7.75%

2001 7.75%

laCPSB calculated the reduction of Mr. Crochet’s weekly indemnity by comparing the proportion of his contribution, 9.5%, with the average of its contribution, 7.95%. That produced a percentage of the reduction of Mr. Crochet’s benefits of 45.56%. Therefore, it reduced his weekly indemnity benefits by $96.86.

The WCJ ruled in Mr. Crochet’s favor, reinstated his weekly indemnity, and awarded him penalties of $8,000.00 and attorney fees of $20,000.00. CPSB appeals this judgment and argues that the WCJ applied superseded law in ruling in Mr. Crochet’s favor. It asks that we conduct a de novo review and render judgment in its favor.

ANALYSIS

The reduction of workers’ compensation benefits for other disability benefits paid by one’s employer is governed by La.R.S. 23:1225. Pertinent to this case is subsection (C)(1)(c), which reads:

C. (1) If an employee receives remuneration from:
(c) Benefits under disability benefit plans in the proportion funded by an employer.
then compensation benefits under this Chapter shall be reduced, unless there is an agreement to the contrary between the employee and the employer liable for payment of the workers’ compensation benefit, so that the aggregate remuneration from Subparagraphs (a) through (d) of this Paragraph shall not exceed sixty-six and two-thirds percent of his average weekly wage.

In invoking the reduction in workers’ compensation benefits under Section 1225, the employer assumes the burden of proving both the entitlement to and the amount of the credit. Vallery v. State, through Dep’t of Health and Hosp., 605 So.2d 1380 (La. App. 3 Cir.), writ denied, 609 So.2d 225 (1992). The employer satisfies that burden by showing that the employee is receiving disability benefits and then proving the proportion of its contribution to those the employee contributed, and the proportion need not be proven “with mathematical precision.” Matthews v. City of Alexandria, 619 So.2d 57, 61 (La.1993).

However, Mr. Crochet argues that La.R.S. 23:1225 does not apply to him because PERS is governed by statutes that supersede the general workers’ compensation statutes. Among those is La.R.S. 11:1934(E), which states:

A disability retirement allowance shall be modified by the board of trustees when the sum of (1) a whole life annuity equivalent of the benefits or financial awards which accrue to a disability retiree solely as the result of his disability and (2) the disability pension to which the retiree is entitled exceeds the amount of his average final compensation, in such a manner that the sum of the above equals the amount of average final compensation. Should these outside benefits or awards be reduced, exhausted, or terminated, the board of trustees shall increase the disability pension then being received by a retiree so that the sum of the pension benefits and the outside benefits equals the amount of average final compensation; but, in no case shall the disability pension be increased to an amount greater than that to which the beneficiary was originally entitled when he retired. Individual private insurance settlements and separate private retirement accounts and any other similar private resources shall be specifically exempted from consideration in any of the above computations.

We disagree with Mr. Crochet’s reading of the statute. In brief, Mr. Crochet highlighted the first sentence of the statute. However, a reading of the second sentence of La.R.S. 11:1934(E) shows that the legislature clearly contemplated that “outside benefits or awards,” such as workers’ compensation, might be reduced or terminated. In such a case, the PERS board of trustees “shall increase the disability pension then being received by [the] retiree.” The two statutes operate in harmony to balance a disabled employee’s workers’ compensation benefits with those he derives from disability retirement.

IfiMr. Crochet also maintains that CPSB is not entitled to an offset because PERS is a tenure-based retirement plan and not a disability plan. Is support of this proposition, Mr. Crochet cites Cousins v. City of New Orleans, 608 So.2d 978 (La.1992). Mr. Crochet has misread Cousins.

Mr. Cousins had been employed as a firefighter in New Orleans for twenty-two years when he was injured on the job in 1983. In 1984, he retired from the City, which suspended his workers’ compensation benefits. It resumed paying weekly indemnity after Mr. Cousins filed suit. He continued to receive benefits until 1987, when the city claimed it was entitled to an offset pursuant to La.R.S. 23:1225.

The supreme court looked to the unique statutes governing the Firefighters’ Pension and Relief Fund in the City of New Orleans, which are now embodied in La. R.S. 11:3361 et seq. Under that plan, a firefighter such as Mr. Cousins, who was totally disabled on the job was eligible to receive fifty percent of his compensation or fifty percent of his compensation plus two- and-one-half percent for each year of service past twenty. La.R.S. 11:3376. Because Mr. Cousins was fully vested in the retirement system, he could have taken early retirement but chose disability retirement because it received more favorable tax treatment. Accordingly, the court ruled that the City was not entitled to its claimed offset.

The present case presents a markedly distinct scenario from Cousins. The statutes governing PERS contain no disability provision similar to that governing the Firefighters’ Pension and Relief Fund in the City of New Orleans, La.R.S. 11:3376. Employees participating in PERS “Plan A,” the defíned-benefít plan, such as Mr. Crochet, are only eligible to retire when they achieve certain milestones: age sixty-five with seven years’ service; age sixty with ten years’ | ^service; age fifty-five with twenty-five years’ service; any age with thirty years’ service; or disability benefits at any age with five years’ service if his disability status is approved by the State Medical Disability Board. La.R.S. 11:1941, La.R.S. 11:209. Mr. Crochet was employed by CPSB in 1988 at age twenty-three. At the time of his disability, Mr. Crochet had nine-and-one-half years’ service and was age thirty-two. Therefore, he was not vested in the tenure-based retirement component of PERS.

Still, the employer is required to prove that the employee is receiving disability benefits and the proportion of its contribution to those of the employee. CPSB presented the affidavit of Ms. Dainna S. Tully, Administrative Director of PERS. Ms. Tully asserted therein that Mr. Crochet receives disability retirement benefits from PERS and is not eligible for “normal” retirement benefits. She further attested that during the relevant years, those in which Mr. Crochet contributed to PERS, CPSB’s annual contribution rate was as stated above. The average of those contributions is 7.95%. The sum of Mr. Crochet’s and CPSB’s contributions is 17.45%. Accordingly, CPSB contributed 45.56% compared to Mr. Crochet’s 54.44%. The documents annexed to Ms. Tully’s affidavit establish that Mr. Crochet receives disability benefits from PERS in the amount of $932.75 per month, which equates to $215.25 per week. Applying CPSB’s 45.56% contribution to Mr. Crochet’s disability benefits would yield an offset of $98.06, which is higher than the offset it claimed of $96.86.

CPSB urges us to conduct a de novo review of the record because the WCJ erred legally in such a manner that it impaired her fact finding. Ordinarily, the | factual findings of a WCJ are subject to review under the manifest error standard. Dean v. Southmark Constr., 03-1051 (La. 7/6/04), 879 So.2d 112. This requires the reviewing court to review the record in its entirety and determine whether it reasonably supports the WCJ’s' conclusions. Stobart v. State, through Dep’t of Transp. and Dev., 617 So.2d 880 (La.1993).

However, where one or more trial court legal errors interdict the fact-finding process, the manifest error standard is no longer applicable, and, if the record is otherwise complete, the appellate court should make its own independent de novo-review of the record and determine a preponderance of the evidence.

Evans v. Lungrin, 97-0541, pp. 6-7 (La. 2/6/98), 708 So.2d 731, 735.

The WCJ relied upon the case of Nugent v. Dep’t of Health & Human Resources, 617 So.2d 1347 (La.App. 3 Cir.), writ denied, 624 So.2d 1226 (1993) for the proposition that the burden of proof imposed upon the employer requires that it prove not only the proportion of its contribution to the benefits, but also the proportion of those contributions that are strictly for disability retirement versus tenure-based retirement.

City of Natchitoches v. Williams, 94-1411 (La.App. 3 Cir. 5/24/95), 657 So.2d 320, recognized that Nugent was abrogated by Matthews, 619 So.2d 57. The court in Williams held that an “employer may not use the employee’s receipt of normal retirement benefits as grounds for reduction.” Williams, 657 So.2d at 322 (emphasis added). The WCJ’s approach, in following the Nvgent case, fundamentally ignores the statutory framework within which PERS is operated. It is not possible for the employer to prove the percentage of its contribution that is applied to disability retirement because the statutory framework makes no such distinction. Applying the incorrect legal standard interdicted the WCJ’s fact-finding process, necessitating a de novo review of the matter.

| sAfter a thorough review of the record, as set forth above, we conclude that CPSB is entitled to its claimed offset. The judgment of the WCJ denying CPSB’s past offset is reversed.

CPSB also claims that it is entitled to suspend Mr. Crochet’s benefits until the amount of its overpayment to Mr. Crochet is satisfied by the passage of time. Also annexed to Ms. Tully’s affidavit was a history of payments by PERS to Mr. Crochet. Payments began on July 1, 2001. CPSB argues that it is entitled to this credit from July 1, 2006. This date corresponds to the date on which PERS removed its offset for workers’ compensation benefits and began paying Crochet his full disability retirement benefit. Accordingly, CPSB is entitled to a credit for its overpayment of workers’ compensation benefits from July 1, 2006, through its suspension of benefits on September 18, 2014. We have already noted, however, that there appears to be a discrepancy between the amount of offset claimed by CPSB and our calculation of the offset amount. Accordingly, we remand the matter to the WCJ with instructions to enter a judgment, consistent with our opinion, establishing with specificity the offset to which CPSB is entitled.

Because we have found for CPSB on all issues, we further reverse the WCJ’s award of penalties and attorney fees. All costs of this appeal are taxed to plaintiff/appellee, Mr. Todd Crochet.

REVERSED AND REMANDED.

      . The age-and-service provisions only apply to those hired on or before December 31, 2006. La.R.S. 11:1941(A). They are different for those hired thereafter. La.R.S. 11:1941(B).