author: Judge Daniel L. Dysart LANDRIEU, J.,

text:
    Gerald HATCHER v. Jeffrey ROUSE, M.D.
    NO. 2016-CA-0666
    Court of Appeal of Louisiana, Fourth Circuit.
    FEBRUARY 1, 2017

      Gerald Hatcher # 89749, 1630 Prison Road CAJUN 1-C2, RAYMOND LA-BORDE CORRECTIONAL CENTER, Cottonport, LA 71327, PLAINTIFF/APPELLANT/IN PROPER PERSON
    Benjamin J. Biller, C. Wm. Bradley, Jr., BRADLEY MURCHISON KELLY & SHEA LLC, 1100 Poydras Street, Suite 2700, New Orleans, LA 70163-2700, COUNSEL FOR DEFENDANT/APPEL-LEE
    (Court composed of Judge Daniel L. Dysart, Judge Madeleine M. Landrieu, Judge Marion F. Edwards, Pro Tempore)
   Judge Daniel L. Dysart

11 Gerald Hatcher, an inmate at the Avo-yelles Correctional Center, appearing herein pro se, appeals the trial court’s judgment sustaining a dilatory exception of unauthorized use of a summary proceeding and dismissing his petition for a writ of mandamus. As discussed more fully herein, the trial court correctly dismissed the writ of mandamus filed against the defendant, the coroner for Orleans Parish, Dr. Jeffrey Rouse, M.D. We, therefore, affirm the trial court’s judgment.

FACTS AND PROCEDURAL BACKGROUND

The limited record before us reflects the following facts.

On July 28, 2015, Mr. Hatcher filed a “Writ of Mandamus” (hereafter referred to as the “Writ”) against Dr. Rouse in which he sought to obtain certain unidentified records or documents. In his Writ, Mr. Hatcher alleges that he was charged by bill of information “based, in part, on the forensic evidence that is/was within the custody and control of [Dr.] Rouse.” He then alleges that “[t]he matter was assigned Item Number H3007087[;] thereafter various tests were issued and | ^documents prepared and produced.” Mr. Hatcher next alleges that, once his conviction became final, “the records maintained to utilize [his] conviction” became “open to public inspection.”

According to his Writ, on June 15, 2015, Mr. Hatcher made a “second Request” of Dr. Rouse for public records pursuant to La. R.S. 44:32. Because Dr. Rouse did not respond to his written request, Mr. Hatch-er filed the instant action. Through this proceeding, Mr. Hatcher sought a finding that Dr. Rouse “has abrogated the provisions of [La. R.S.]44:32,” ordering that he comply with Mr. Hatcher’s “request for inspection and production,” and pay the costs for the proceeding and “punitive damages in the amount set-forth in the relevant statute.”

In response to the Writ, Dr. Rouse filed a Dilatory Exception of Unauthorized Use of Summary Proceeding. In his exception, Dr. Rouse argued that he had complied with Mr. Hatcher’s request by informing him, by letter dated August 11, 2015, that he had no records relating to the item number Mr. Hatcher provided and, more specifically, that the item number did not correlate to any files contained within the coroner’s office.

A hearing was held on Dr. Rouse’s dilatory exception of unauthorized use of a summary proceeding and by judgment dated October 23, 2015, the trial court maintained the exception and also dismissed Mr. Hatcher’s Writ. Mr. Hatcher then filed an application with this Court for a writ of supervisory review of the trial court’s October 23, 2015 judgment. Finding that the judgment was a final, |3appealable judgment, on January 26, 2016, this Court transferred the writ application to the trial court and instructed Mr. Hatcher to convert the application to a motion for appeal. Mr. Hatcher then filed a Motion for Appeal on February 5, 2016. This appeal followed.

DISCUSSION

While the trial court did not issue reasons for judgment, and none were requested by either party, at the hearing on the exception, the trial court commented that, under the provisions of the Public Records Act, Mr. Hatcher, as a “person in custody following a felony conviction following post appellate procedures,” was required to file his request “in Criminal District Court through... Post-Conviction Relief Application.” The trial court did not expressly make a determination that Mr. Hatcher’s suit was impermissibly employing a summary proceeding. While we find that the trial court erred in granting the dilatory exception of unauthorized use of a summary proceeding under these circumstances, we find that the trial court’s dismissal of the Writ was not an abuse of the trial court’s discretion, albeit for reasons other than those assigned by the trial court.

Louisiana Code of Civil Procedure article 926 A(3) provides for the dilatory exception of unauthorized use of a summary proceeding. Dr. Rouse correctly notes our jurisprudence which indicates that “[t]he proper method of opposing 14[the] use [of mandamus] is to raise the dilatory exception urging the objection of unauthorized use of a summary proceeding.” Martin v. Bonanno, 421 So.2d 359, 362 (La. App. 1 Cir. 1982). However, this exception is only designed to test whether an action should proceed in a summary manner rather than by ordinary proceeding. See, e.g., Cent. Cmty. Sch. Bd. v. E. Baton Rouge Par. Sch. Bd., 08-0036, p. 11 (La.App. 1 Cir. 6/6/08), 991 So.2d 1102, 1110 (the “determination of the issue of the Central Board’s rights, if any, to these tax funds is not appropriate in a mandamus proceeding... relief is available through ordinary proceedings”); Judson v. Davis, 04-1699, p. 10 (La.App. 1 Cir. 6/29/05), 916 So.2d 1106, 1114 (in determining whether it was “procedurally improper to assert an action for corporate dissolution in a recon-ventional demand to a mandamus action,” the court noted that “the mode of procedure for [this] action ... is an ordinary proceeding, rather than a summary proceeding); Melancon v. Police Jury of Lafayette, 301 So.2d 715, 719 (La. App. 3d Cir. 1974) (in an action against “Police Jury and the Planning Commission to revoke its approval of the subdivision plat,” the court held that the plaintiff appellant was “not entitled to a writ of mandamus but must seek his relief by ordinary process”).

Louisiana Code of Civil Procedure article 2592 specifically provides that mandamus shall be tried as a summary proceeding. It states, in pertinent part:

Summary proceedings may be used for trial or disposition of the following matters only:
⅜ * * * *
|fi(6) A habeas corpus, mandamus, or quo warranto proceeding.

La. C.C.P. art. 2692(6)(emphasis added). Our jurisprudence recognizes that “mandamus proceedings are clearly allowed to be asserted as summary proceedings.” Great Lakes Dredge & Dock Co., LLC v. State ex rel. Coastal Prot. & Restoration Auth., 14-0249, p. 4 (La.App. 1 Cir. 11/7/14), 167 So.3d 682, 685; see also, Smith v. St. Tammany Fire Prot. Dist. No. 1, 97-2003, p. 3 (La.App. 1 Cir. 9/25/98), 723 So.2d 994, 995.

Louisiana Code of Civil Procedure article 3861 defines mandamus as “a writ directing a public officer or a corporation or an officer thereof to perform any of the duties set forth in Articles 3863 and 3864.” In Aberta, Inc. v. Atkins, 12-0061, pp. 2-3 (La. 5/25/12), 89 So.3d 1161, 1163, our Supreme Court explained the use of mandamus:

Pursuant to La. C.C.P. art. 3863, “[a] writ of mandamus may be directed to a public officer to compel the performance of a ministerial duty required by law, ...” Further, “[a] writ of mandamus may be issued in all cases where the law provides no relief by ordinary means or where the delay involved in obtaining ordinary relief may cause injustice ...” La. C.C.P. art. 3862; Board of Trustees of Sheriff’s Pension and Relief Fund v. City of New Orleans, 02-0640 (La. 5/24/02), 819 So.2d 290, 291 (“mandamus is an extraordinary remedy which should be applied only where ordinary means fail to afford adequate relief’). This Court has explained that “mandamus will only issue where the action sought to be compelled is ministerial in nature, i.e., where it contains no element of discretion.” Newman Marchive Partnership, Inc. v. City of Shreveport, 07-1890 (La. 4/8/08), 979 So.2d 1262, 1269; Hoag v. State, 04-0857 (La. 12/1/04), 889 So.2d 1019, 1023. In Hoag, we defined a ministerial duty as a “simple, definite duty, arising under conditions admitted or proved to exist, and imposed by law.” 889 So.2d at 1024.

16In the instant matter, Mr. Hatcher is seeking to obtain documents from the coroner’s office under the Public Records Law, La. R.S. 44:1 et seq. That a writ of mandamus is the proper procedural means by which to require a public officer to produce public records (unless an exception applies) is evident both from the Public Records Law and case law. In enacting the Public Records Law, the Legislature recognized that “[pjroviding access to public records is a responsibility and duty of the appointive or elective office of a custodian and his employees.” La. R.S. 44:31 A. Under this Law, “any person may obtain a copy or reproduction of any public record.” La. R.S. 44:31 B(2). Likewise, when a request for public records has been made, “[t]he custodian shall present [the] public record[s] to any person of the age of majority who so requests.” La. R.S. 44:32 A. Citing La. R.S. 44:35 A, this Court noted that, when a request for public records has been made and, “[i]f the requester has been denied the right to inspect or copy a record.. .the requester may institute proceedings for the issuance of a writ of mandamus ....” Innocence Project New Orleans v. New Orleans Police Dep’t, 13-0921, p. 4 (La.App. 4 Cir. 11/6/13), 129 So.3d 668, 672; see also, Vandenweghe v. Par. of Jefferson, 11-52, pp. 12-13 (La. App. 5 Cir. 5/24/11), 70 So.3d 51, 59 (“mandamus, which under the Public Records Law, has a specific procedure in place to determine the nature of the requested items, is an appropriate remedy for ordering the release of public records”).

The records of a coroner have been held to be public records subject to the Public Records Law. In Bozeman v. Mack, 97-2152, p. 5 (La.App. 1 Cir. 12/21/98), 744 So.2d 34, 37, the court held that “[bjecause the coroner’s office is a ‘public bod/ whose existence is mandated by the Louisiana State Constitution, the records produced therein are public records under the provisions of LSA-R.S. 44:1, unless they are specifically exempted from the public records law.” The Bozeman court found that, under the Public Records Law, the plaintiff was entitled to the autopsy reports of her daughter and granddaughter, holding that “an autopsy report is a public record when it is prepared by a coroner in his public capacity as coroner.” Id., 744 So.2d at 37; see also, Everett v. S. Transplant Serv., Inc., 97-2992 (La. 2/20/98), 709 So.2d 764, in which the Supreme Court reinstated the trial court’s finding that a coroner’s records were public records.

Here, it is clear that Dr. Rouse is the duly elected coroner for Orleans' Parish, and because the records maintained by his office are public (unless exempted and to the extent that Dr. Rouse has records responsive to Mr. Hatcher’s request), Mr. Hatcher properly invoked a mandamus proceeding and the trial court erred in maintaining the exception of unauthorized use of a summary proceeding.

However, we find no error in the trial court’s dismissal of Mr. Hatcher’s Writ. Under the Public Records Law:

If any- public record applied for by any authorized person is not in the custody or control of the person to whom the application is made, such person shall promptly certify this in writing to the applicant, and shall in the certificate state in detail to the best of his knowledge and belief, the reason for the absence of the record from his custody or control, its location, what person then has custody of the record and the manner and method in which, and the exact time at which it was taken from his custody or control. He shall include in the certificate ample and detailed answers to inquiries of the applicant which may facilitate the exercise of the right granted by this Chapter.

La. R.S 44:34.

|8The record reflects that Mr. Hatcher sent a letter to the “Orleans Parish Corners [sic] Office” requesting “all the records that the Corners [sic] Office possesses in relationship [sic] to the above captioned item.” The item number referenced in the letter was “H3007087.”

The Coroner’s Office, through its attorney, Benjamin J. Biller, responded to Mr. Hatcher’s request on August 11, 2015 and indicated:-.

The Coroner is not in the custody or control of any records relating to an item number H3007087. That type of number does not correlate to any files maintained by the Coroner.
If you would like to send an additional request with more specific details about the records sought, we would be happy to perform another search.

Mr. Hatcher responded by sending a letter to Mr. Billings on August 17, 2015, advising that the item number “was in reference to the documentation received by the Assistant District Attorney’s Office with respect to the forensic testing that was submitted.” He then asserted that Mr. Billing’s response that there was insufficient information with which to respond to the request was “dubious.... Instead it is incumbent upon the City to allow inspection and the recent jurisprudence certainly suggests the City has, and continues, to circumvent the rights of inspection.” He then clarified that he was seeking “all the forensic testing that was conducted, the files maintained in the respective case, the chain of custody documentation,” again referencing the same item number.

To Mr. Hatcher’s second letter, Mr. Billings responded by letter dated August 25, 2015 to Mr. Hatcher and informing him as follows:

| ¡¡The Coroner of the Parish of Orleans is a separate and distinct entity from the City of New Orleans and the District Attorney.... Again, the Coroner is not in the custody or control of any records relating to item number H3007087. However, such records may be in the possession of the City of New Orleans or the District Attorney’s office of whatever parish prosecuted your case. A public records request directed to those entities may be warranted.

Mr. Billing then cited La. R.S. 44:31.1, which provides:

For the purposes of this Chapter, person does not include an individual in custody after sentence following a felony conviction who has exhausted his appellate remedies when the request for public records is not limited to grounds upon which the individual could file for post conviction relief under Code of Criminal Procedure Article 930.3. Notwithstanding the provisions contained in R.S. 44:32, the custodian may make an inquiry of any individual who applies for a public record to determine if such individual is in custody after sentence following a felony conviction who has exhausted his appellate remedies and the custodian may make any inquiry necessary to determine if the request of any such individual in custody for a felony conviction is limited to grounds upon which such individual may file for post conviction relief under Code of Criminal Procedure Article 930.3.

In compliance with this statute, Mr. Billings requested that Mr. Hatcher provide information as to whether he was in custody as a result of a felony | inconviction, whether he had exhausted all appeals of that conviction and, if he is an incarcerated, convicted felon who has exhausted all of his appeals, and for what purpose he was requesting the records. He likewise sought additional information with which to conduct a search for records, including “the name of the court in which Case Number 325-618 was. prosecuted, the charges against [him], [t]he identity of the alleged victim(s) of [his] crime, the disposition of the case, the date on which the judgment in that case became final, and a specific description of the forensic test results [he was] seeking and the date(s) of the forensic test results.” It does not appear that Mr. Hatcher responded to this letter.

We find that Dr. Rouse’s response complies adequately with La. R.S. 44:34 and as such, the trial court properly dismissed Mr. Hatcher’s Writ. We find support for the trial court’s ruling in the ease of Hunter v. Pennington, 98-1821 (La.App. 4 Cir. 1/20/99), 726 So.2d 1082. In Hunter, an inmate serving a life term for second degree murder, sought to obtain records from the Orleans Parish Sheriff. He sent a public records request for certain documents related to his trial and conviction. The Sheriff responded by providing one document responsive to the request, but with respect to certain log books sought by the inmate, the Sheriff responded that “the log books ‘are not maintained for more than three years; therefore, the log book entries that plaintiff requested have not existed for seven years.’” Id., p. 2, 726 So.2d at 1083. The trial court found the response sufficient and dismissed the writ of mandamus action. In affirming the judgment, this Court found no error, noting “that assertion that the log books in question have not existed for seven years satisfies the requirements of the statute;” namely, that “the public official shall state in writing ‘to the best of his knowledge and belief, the reason for the absence of the record from his custody or control, its location, what InPerson then has custody of the record and the manner and method in which, and the exact time at which it was taken from his custody or control.” Id., p. 2, 726 So.2d at 1083-84.

Based on the record before us, we find that Dr. Rouse’s response to Mr. Hatcher’s records request complied with La. R.S. 44:34. Because Dr. Rouse was unable to even identify any records based on the information provided by Mr. Hatcher, his response clearly sought additional information so that he could search for the records requested. Mr. Hatcher’s next letter provided the same information as that contained in his initial letter, although he repeatedly referred to records maintained by the City of New Orleans. Counsel for Dr. Rouse then responded by again advising that it had no records relating to the item number provided by Mr. Hatcher and further advising that the records he sought may be in the possession of the City of New Orleans or the district attorney’s office in the parish in which he was prosecuted.

The custodian of public records cannot be expected to produce records that it cannot identify. To the contrary, the custodian’s statutory duty is “to provide immediate access to records that are available.” All. for Affordable Energy v. Frick, 96-1763, p. 7 (La.App. 4 Cir. 5/28/97), 695 So.2d 1126, 1132 (emphasis added). As Dr. Rouse was unable to identify records pertaining to Mr. Hatcher’s request, we find no abuse of the trial court’s discretion in denying the request for a Writ and dismissing it. As the Louisiana Supreme Court once found, “[u]nder these circumstances [of this case], a mandamus would not serve a useful purpose and should not issue.” Reynolds v. Louisiana Highway Comm’n, 163 La. 125, 111 So. 622, 624 (La. 1927).

112We likewise find no abuse of discretion in the trial court’s failure to award civil penalties under La. R.S. 44:85. Under Subpart E(l) of that statute, “if the court finds that the custodian unreasonably or arbitrarily failed to respond to the request as required by R.S. 44:32 it may award the requester civil penalties not to exceed one hundred dollars per day, exclusive of Saturdays, Sundays, and legal public holidays for each such day of such failure to give notification.” If a trial court finds that the custodian unreasonably or arbitrarily failed to respond to a public records request within the three-day statutory period, “it may award the requester civil penalties not to exceed one hundred dollars per day, exclusive of Saturdays, Sundays, and legal public holidays for each such day of such failure to give notification.” La. R.S. 44:35 E(l) (emphasis added). Innocence Project New Orleans, 13-0921, p. 8, 129 So.3d at 673-74. Mr. Hatcher maintains that there were “fifty qualifying days” between his request for records and Dr. Rouse’s initial response to the request and he seeks an award of penalties for this delay.

While the record does not reflect the date on which Mr. Hatcher’s initial letter was received by Dr. Rouse, this suit was filed on July 28, 2015. Dr. Rouse was served with the Writ on August 13, 2015. Dr. Rouse’s initial letter to Mr. Hatcher is dated August 11, 2015. Thus, it is unclear when Dr. Rouse received Mr. Hatcher’s letter for purposes of analyzing whether his response was timely. However, even assuming that the response was not timely, as we noted in Innocence Project New Orleans, “an award of civil penalties under Public Records Law is discretionary with the trial judge, and we will review the award under an abuse-of-discretion standard.” Id. Under the circumstances of this case, we find that the trial court did not abuse its discretion in failing to award penalties to Mr. Hatcherl

In Johnson, supra, 46,914, p. 1, 86 So.3d at 33, the Second Circuit considered whether the trial court erred in failing to award civil penalties when a convicted rapist sought “the cost of all reports concerning an incident that occurred at 1613 Brittan Street in Coushatta on or about January 3, 2006.” Almost three months later, and after he filed a writ of mandamus, the City of Coushatta issued a letter advising that no such document existed, but enclosed a copy of a report related to a January 2, 2006 incident. In affirming the trial court’s denial of the plaintiffs request for civil penalties, the court noted that the plaintiff “requested only the cost of a copy of a report—a document that did not exist.” Id., p.4, 86 So.3d at 35. The Court then noted that the report was ultimately provided to him and found that “[the City of] Coushatta used its best efforts to comply with Johnson’s request” and found no error in the trial court’s failure to award penalties. Id. See also, Chandler v. Ouachita Par. Sheriffs Office, 48,179, p. 10 (La.App. 2 Cir. 8/7/13), 121 So.3d 1216, 1223 (“The OPSO did not produce the requested records at issue because they no longer existed when Chandler made his requests. The OPSO could not unreasonably or arbitrarily fail to respond to Chandler’s requests as required by La. R.S. 44:32 when it no longer had the recorded calls or subpoena return. It could not withhold what it no longer had in its custody or control.”); Washington v. Reed, 95-1067, p. 4 (La.App. 1 Cir. 2/23/96), 668 So.2d 1313, 1315 (where the “Clerk of Court responded to appellant’s public records request with a letter in which she stated that her office did not possess any lists containing the information that the appellant sought” and the district attorney “stated that his office could not locate the petitioner’s file,” the court found no' error “in failing to |14find that these agencies were arbitrary and capricious in not furnishing public records”).

We find these cases analogous to the instant matter. Because Dr. Rouse was unable to locate any records using the information provided by Mr. Hatcher, he cannot be said to have been arbitrary or capricious in not furnishing records in response to Mr. Hatcher’s request.

CONCLUSION

For the reasons set forth above, we affirm the trial court’s dismissal of Mr. Hatcher’s Writ of Mandamus.

AFFIRMED

LANDRIEU, J., CONCURS IN THE RESULT WITH REASONS

LANDRIEU, J.,

CONCURS IN THE RESULT WITH REASONS.

hThe appellant brought a mandamus action against the Orleans Parish Coroner seeking production of certain public documents. A mandamus proceeding is the proper procedural mechanism for ordering the release of public records. La. R.S. 44:35. The Coroner responded to the appellant’s request for public records stating that the documents requested were not in the custody of the Coroner’s office. La. R.S. 44:34. A public official cannot be made to produce that which he does not have. Accordingly, the trial court’s dismissal of the appellant’s writ of mandamus was proper.

      . Mr. Hatcher does not specify what is meant by the "matter” or to what "Item Number H3007087” refers.

      . An appellate court reviews "a trial court's decision to deny a request for a writ of mandamus under an abuse of discretion standard.” Constr. Diva, L.L.C. v. New Orleans Aviation Bd., 2016-66, (La. App. 4 Cir. 12/14/16), 206 So.3d 1029, 1037, 2016 WL 7235731, at *6.

      . La. R.S. 44:1 A(2) legislatively defines what constitutes a public record. Bozeman, 97-2152, p.5, 744 So.2d at 37.

      . The letter is undated and, while Mr. Hatch-er attached copies of certified mail documents, none reflect the date on which the certified mail was received by the coroner’s office.

      . The record reflects that Dr, Rouse was served with the Writ on August 13, 2015.

      . Under this statute, "[a]n exception to the right to inspect or copy public documents and records for certain prisoners is found in La. R.S. 44:31.1, which states, in part: For the purposes of this Chapter, person does not include an individual in custody after sentence following a felony conviction who has exhausted his appellate remedies when the request for public records is not limited to grounds upon which the individual could file for post conviction relief under Code of Criminal Procedure Article 930.3.” Johnson v. City of Coushatta, 46,914, p. 3 (La.App. 2 Cir. 1/25/12), 86 So.3d 32, 34. The Johnson court found that the plaintiffs "petition does not establish that his request for the cost of the report is limited to grounds upon which he could file a petition for post conviction relief.” Id., p. 4, 86 So.3d at 34. In the instant matter, Mr. Hatcher gives no information about his conviction, when that conviction was made final, whether he exhausted his appellate remedies or whether he was seeking documents related to grounds on which he could seek post-conviction relief.


source: Caselaw Access Project

author: Judge Daniel L. Dysart

license: Public Domain

text:
    ETI, INC. v. BUCK STEEL, INC.
    NO. 2016-CA-0602
    Court of Appeal of Louisiana, Fourth Circuit.
    FEBRUARY 1, 2017

      David C. Clement, Leslie J. Hill, CLEMENT GATES & MAY, 400 Poydras Street, Suite 1410, New Orleans, LA 70130, COUNSEL FOR PLAINTIFF/APPELLANT
    Daniel E. Davillier, Charles F. Zimmer, II, DAVILLIER LAW GROUP, 1010 Common Street, Suite 2510, New Orleans, LA 70112, COUNSEL FOR DEFENDANT/APPELLEE
    (Court composed of Judge Daniel L. Dysart, Judge Madeleine M. Landrieu, Judge Joy Cossich Lobrano)
   Judge Daniel L. Dysart

|! This matter arises from a contractual dispute between ETI, Inc. (“ETI”) and Buck Steel, Inc. (“Buck Steel”). For the reasons that follow, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In November, 2011, the State of Louisiana entered into a contract with ETI for the latter to serve as the general contractor for the construction of an addition to the central plant at the University of New Orleans North Campus (“the Project”). ETI then subcontracted with Buck Steel for certain tasks related to the construction of a metal building system required for the Project. Included among these tasks was the preparation of engineered stamped drawings.

After issues arose over the drawings prepared by Buck Steel, ETI terminated its contract with Buck Steel and filed a Petition against it on November 23, 2012, alleging the following facts. According to ETI, it provided Buck Steel with a copy of the plans, specifications and addenda for the Project on February 1, 2012. Buck Steel then submitted a quote for the metal building system on February 2, 2012, which ETI accepted on February 3, 2012. Thereafter, ETI instructed Buck Steel to 12prepare the “submittals necessary to obtain the approval of ... [the] Metal Budding System by the Engineer and Architect of record for the project.” ETI issued a payment to Buck Steel in the amount of $17,500.00 on February 22, 2012.

On March 9, 2012, Buck Steel issued a submittal to the Project’s architect, who rejected it for the reason that “the submit-tal and shop drawings failed to comply with the plans and specifications for the Project.” The architect provided “extensive notes” for Buck Steel to use in order to revise its submittal.

On June 4, 2012, ETI issued another payment to Buck Steel in the amount of $28,129.00 and, on June 18, 2012, Buck Steel issued its second submittal to ’ the Project’s architect. This submittal was again rejected “for the same reason that the first submittal was rejected.”

In this lawsuit, ETI alleged that, because of Buck Steel’s failure to properly and timely prepare the necessary submit-tals, there was a delay in the Project and ETI incurred delay damages. ETI further alleged that it had to obtain the metal building system from another vendor. ETI sought the return of the funds paid to Buck Steel, in addition to damages, including delay damages, costs and other equitable relief.

By way of a First Amended and Supplemental Petition, filed on May 2, 2014, ETI amended its original petition so as to specify the damages it sought, as follows:

- Return of the two payments ($17,500.00 and $28,129.00)
Is- Increased contract amount of $21,155.32 which ETI incurred in “hir[ing] an alternate contractor to prepare the necessary submittals and provide the metal building that Buck Steel failed to provide”
- Unusable Boes Iron Works mezzanine steel valued at $25,039.00
- Delay damages of $70,800.00
- ETI’s additional overhead of $141,012.00
- Payments to “Bonding Company Administrator” of $27,000.00
- Payments to “the paymaster for the bonding company” of $6,000.00
- Olympic Group price increase of $7,060.00

On September 12, 2014, Buck Steel filed a Reconventional Demand against ETI in which it alleged that ETI breached the contract with it when it “unilaterally rescinded. .. and canceled the Sales Contract on or before August 16, 2012.” Buck Steel sought liquidated damages pursuant to the sales contract in the amount of 33% “of the entire contract,” collection costs, attorney’s fees and other costs and fees.

The matter proceeded to trial from May 4-6, 2015, and by judgment dated November 3, 2015, the trial court awarded ETI damages of $46,194.32 (on the basis that ETI “carried its burden of proving a breach of contract). The judgment also found that Buck Steel, “a vendor under Louisiana law, is allowed to bring its breach of contract claim, BUT that the Court finds no breach of the Sales Contract in question.” The Court also concluded that Buck Steel “is entitled to retain the $45,629 in deposits paid by ETI, Inc.” The judgment then stated that ETI was .[^entitled to the difference of the two amounts or a total of $565.32 in damages.”

On November 12, 2015, ETI filed a Motion for New Trial on the basis that the trial court’s November 3, 2015 judgment was inconsistent with the Reasons for Judgment and because the judgment contained a mathematical error with respect to awarding ETI the difference between the sums awarded to ETI and Buck Steel. After a hearing on the motion held on January 8, 2016, the trial court issued a judgment on March 7, 2016. The judgment denied ETI’s motion for new trial but corrected its prior judgment so as to read as follows:

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that ETI, Inc. carried its burden of proving a breach of contract action on the part of Buck Steel AND is entitled to damages in the amount of $46,194.32. Under the evidence presented, Buck Steel is entitled to retain the $45,629 in deposits paid by ETI.

ETI timely appealed the judgment.

DISCUSSION

At the outset, ETI urges this Court to adopt a de novo standard of review, arguing that, while a “trial judge has broad discretion in granting or denying a motion for new trial,” “when one or more legal errors interdict the court’s fact finding process, the manifest error standard becomes inapplicable.” While we agree with ETI that issues concerning the interpretation of contracts are questions of law subject to a de novo standard of review, factual determinations by the trial | Bcourt are subject to a manifest error standard of review. See, Harold A. Asher, CPA, LLC v. Haik, 12-0771, p. 4 (La.App. 4 Cir. 4/10/13), 116 So.3d 720, 723.

In this appeal, ETI does not challenge the trial court’s failure to award it certain items of damages it sought by way of its original and supplemental petitions (e.g., delay damages, additional overhead, payments related to the bond or the price increase of Olympic Group). Rather, ETI raises three issues in this appeal: (1) the trial court’s finding that Buck Steel is not a contractor under Louisiana law, (2) the trial court’s finding that Buck Steel is allowed to retain the payments made to it by ETI; and (3) the trial court’s failure to award costs to ETI. We address each assignment of error in turn.

Whether the tidal court erred in finding that Buck Steel is not a contractor under Louisiana law

In its first assignment of error, ETI maintains that the trial court erred in failing to find that, under the circumstances of this ease, Buck Steel was a contractor rather than a vendor because it agreed to supply the material to construct the metal budding and to erect the building in question. ETI then argues that, because Buck Steel was a contractor as contemplated by La. R.S. 37:2150.1(4)(a), and was not licensed as a contractor in Louisiana, “Buck Steel’s Contract for over $50,000, which included erecting the steel building, was absolutely null.” In | (¡support of its arguments, ETI relies on the case of Alonzo v. Chifici, 526 So.2d 237, 243 (La. App. 5 Cir. 1988).

The trial court rejected ETI’s contention that Buck Steel is a contractor under Louisiana law. In its Reasons for Judgment, the trial court noted that the contract at issue “provided that Buck [Steel] would provide for the erection of the steel at an additional cost of $30,000,00.” However, the trial court ultimately concluded that:

... ETI contracted with Buck [Steel] to provide a set of drawings that matched the requirements requested by the State only and that though this agreement mentioned the erection of the steel structure, the amount set forth in the contract does not include that part of the agreement. It is therefore of no moment. ETI understood, when they signed the agreement, that Buck had no responsibility for the erection of the structure.

ETI contends that both a “pre-contract letter of intent” and the actual contract signed by the parties contemplated that Buck Steel would, indeed, provide the materials and erect the metal building. We disagree. While the letter of intent and the contract do contain separate pricings for the building and for the erection of the building, it is clear that the only pricing to which the parties agreed pertained to the design of the building and Buck Steel’s furnishing certain components for the building. As such, we agree with the trial court that Buck Steel was not a contractor.

The record reflects that on February 3, 2012, ETI sent Buck Steel a letter of intent. The letter confirmed ETI’s “intent. .. to enter into [a] contract with BUCK STEEL, INC to perform specific services” as outlined in an attached quote from Buck Steel dated February 2, 2012. The attached quote included “building pricing” of $59,640.00 and “erecting pricing” at a cost of $30,000.00.

^According to the trial testimony of Ser-eno Mason Merrill, the estimator with Buck Steel who was involved in confecting the contract with ETI, the February 2, 2012 quote was an initial quote based on the information provided to Buck Steel at that time. Over the ensuing couple of weeks, several different quotes were provided to ETI based upon new or updated information. Ultimately, the parties entered into a sales contract on February 22, 2012 (hereafter sometimes referred to as “the Contract”), which included the costs for “building pricing” (including engineered stamped drawings) of $87,632.00 and erecting pricing of $30,000.00.

As the Contract indicates, the actual costs to which the parties agreed were limited to the building price, as is evident from the final breakdown of the costs. The ultimate price for the services to be rendered by Buck Steel under the Contract consisted solely of the building price of $87,632.00. The pricing required an engineering deposit of $17,500.00 and a fabrication deposit of $8,800.00. The “COD” listed on the Contract was $61,332.00 (which consists of the “building price” less the two deposits). The ultimate breakdown of the agreed costs did not include the $30,000.00 quoted price for the erection of the building.

It is therefore clear from the Contract that the parties contemplated that Buck Steel would provide only those services included with the building pricing. That this was the agreement is supported by the trial testimony of Brian Tenette, ETI’s former project manager who was involved in the Project. When asked what ETI “expected] Buck Steel to do in connection with the agreement,” Mr. Tenette Igtestifled that ETI expected it to “provide a set of shop drawings consistent with the project documents and specification[s].” The drawings would then be submitted to the architect for approval and then “forward[ed] back to ETI [which] would in turn send the same to Buck Steel.” According to Mr. Tenette, once the documents were approved, ETI expected Buck Steel to “[p]roduce the building.” Mr. Tenette did not state that Buck Steel was expected to erect the building. Likewise, Mr. Tenette admitted that there was a separate “erecting contract” that ETI signed but which was never executed by Buck Steel.

The terms of the Contract, too, confirm that Buck Steel was not retained to construct the metal building. The terms and conditions of the Contract specifically state that “Seller [Buck Steel] and Buyer [ETI] hereby agree that Seller shall have no responsibility whatsoever for the erection of the structure or structures which are the subject of this Contract and that Seller shall be under no liability whatsoever to Buyer for any loss of damage sustained by Buyer as a result of or in connection with the erection of the said structure or structures.”

In its reasons for judgment, the trial court found that Buck Steel agreed to “provide drawings for [the] steel building to be erected on UNO’s campus and, once those drawings were approved, to ultimately provide the materials needed for erection of the building.” Accordingly, and in reliance on the case of Jesse F. Heard & Sons v. Southwest Steel Products, 124 So.2d 211 (La. App. 2 Cir.1960), the trial court concluded that “if a party merely prepares the materials so they can be built at a later date, the party is a vendor, not a contractor.” The Jesse F. Heard & Sons court noted that “where one simply contracts to furnish a completed article 19to be used in a building, and where such person does not have the responsibility and is under no obligation in any manner to join in the installation of such materials in the building itself and to take no part in the actual erection or construction of the building at the site where the same is being constructed, that he and his employees are simply suppliers of materials....” Id., 124 So.2d at 219.

Here, Buck Steel did not serve merely as a supplier of materials, insofar as it was also retained to prepare engineered drawings. However, we agree with the trial court that Buck Steel was clearly not acting as a contractor under these circumstances and we, thus, find no error in the trial court’s ruling.

We are also mindful of our well-settled jurisprudence indicating that, as a matter of contract interpretation, when the “words of a contract are clear, unambiguous, and lead to no absurd consequences, we may not look beyond the contract language to determine the true intent of the parties.” Rousset v. Smith, 14-1409, p. 6 (La.App. 4 Cir. 9/23/15), 176 So.3d 632, 637, writ denied sub nom. Schafer v. Tubbs, 15-1939 (La. 11/30/15), 184 So.3d 35. Here, the terms of the contract are unambiguous and clearly indicate that Buck Steel would not provide services related to the erection of the building. We thus find no merit to ETI’s argument that Buck Steel was operating as an unlicensed contractor such that the Contract is void.

We are not persuaded that the Alonzo case dictates a finding that Buck Steel was operating as a contractor, as ETI contends. The court in Alonzo concluded that a contract was, indeed, a construction contract, and that because the contractor was unlicensed, the contract was void (the court did, however, find that the contractor was entitled to be paid for the work performed, without overhead and profit; the court noted that “[although the contract is in violation of prohibitory law and is 11 nillegal, it would be unjust to allow [the owner] to escape liability for payment of the actual cost of materials, services and labor while reaping the benefits of the renovations.” Id., 526 So.2d at 243). Notably, the trial court made the following observations with respect to whether a contract is classified as a sales contract or a construction contract:

... [T]the agreement [at issue] fits the definition of a contract to build (a contract to do) as defined by La.C.C. Articles 2756 and 2757:
“To build by a plot, or to work by the job, is to undertake a building or a work for a certain stipulated price.”
“A person who undertakes to make a work, may agree, either to furnish his work and industry alone, or to furnish also the materials necessary for such a work.”
Although the Civil Code clearly contemplates a distinction between sales and construction contracts, it defines the contract of sale in very general terms. The judiciary has developed several tests for determining whether a given contract is a contract of sale or a construction contract. In Acadiana Health Club, Inc. v. Hebert, 469 So.2d 1186, 1189 (La. App. 3rd Cir.1985) the court notes:
“There are three major factors in determining whether a contract is a contract of sale or a contract to build or to work by the job. First, in a contract to build, the “purchaser” has some control over the specifications of the object. Second, the negotiations in a contract to build take place before the object is constructed. Lastly, and most importantly, a building contract contemplates not only that the builder will furnish the materials, but that he will also furnish his skill and labor in order to build the desired object. Duhon v. Three Friends Homebuilders Corporation, 396 So.2d 559 (La. App. 3 Cir.1981); Airco Refrigeration Service, Inc. v. Fink, 242 La. 73, 134 So.2d 880 (1961).”

Id., 526 So.2d at 241. The last requirement for a construction contract, that the builder will furnish skills and labor to actually build the product, is clearly missing from the Contract at issue herein, as we have already found. The Alonzo case, Intherefore, supports our conclusion, and that of the trial court, that the Contract was not a construction contract.

Award of $45,629.00 to Buck Steel

In its next assignment of error, ETI maintains that the trial court erred in allowing Buck Steel to retain the sums paid by it to Buck Steel, which totaled $45,629.00. ETI again relies on its position that, under the Contract with Buck Steel, Buck Steel was operating as a contractor under Louisiana law, and that, because it was not licensed in the State, the Contract is null and void. We have already determined that this argument is without merit.

In the alternative, ETI argues that, because the trial court found that Buck Steel breached the Contract and because Buck Steel is a vendor, ETI is entitled to the dissolution of the sale of the steel building, a return of the purchase price and damages. In support of this position, ETI cites La. C.C. art. 2485 and the case of Rabb & Rainey Iron Works v. Le Blanc, 229 La. 625, 86 So.2d 513 (1956). We find neither to be decisive of the issue in this case, as both Article 2485 and Rabb & Rainey Iron Woks deal simply with contracts to buy and sell.

We first note that the terms and conditions section of the Contract contain a provision which states that, “[sjhould the Buyer [ETI] breach or unilaterally rescind or cancel this contract, the deposit herein shall be forfeited to the Seller [Buck Steel] as liquidated damages for breach of contract and as special damages for losses incurred by the Seller.” There is no question that ETI unilaterally canceled the Contract and, accordingly, under the clear and unambiguous terms of the Contract, ETI forfeited the sums it paid to Buck Steel as of the time that the Contract was canceled. On this basis, alone, the trial court’s finding that Buck Steel was entitled “to retain the $45,629 in deposits paid by ETI, Inc.” is correct.

hiWe now turn to ETI’s argument in the alternative, that the trial court erred in failing to order a dissolution of the sale and a return of the amounts paid by it.

Louisiana Civil Code article 2485 provides, in pertinent part, that “[w]hen the seller fails to deliver or to make timely delivery of the thing sold, the buyer may demand specific performance of the obligation of the seller to deliver, or may seek dissolution of the sale,” and damages. Rdbb & Rainey Iron Works applied the provisions of this Article (as it was worded at the time) to a contract for the sale of steel. The Supreme Court, after determining that a valid contract existed between the parties, found that the seller failed to deliver the steel to the purchaser, the consequence of which was that “the buyer [was] entitled to an action for the return of the purchase price” under then-Artiele 2485. Id. at 515.

In this matter, the Contract between ETI and Buck Steel was not merely a contract to purchase the steel building or materials from which the steel building would be built. To the contrary, the Contract included engineered stamped drawings, as was confirmed by Mr. Tenette. In its reasons for judgment, the trial court, too, found that the Contract provided for Buck Steel to “provide drawings for a steel building to be erected on UNO’s campus and, once these drawings were approved, to ultimately provide the materials needed for erection of the building.”

There was much discussion at trial regarding when certain documents (e.g., the project manual, certain addendums) were provided to Buck Steel by ETI. Buck Steel maintained that ETI did not timely provide the documents or certain necessary information which delayed its ability to produce the drawings. Buck Steel did, however, twice provide drawings to ETI, both of which were rejected by the architects and engineers for the Project. As the trial court found, the record supports that Buck Steel failed to revise and correct the second set of drawings h¡¡with the measurements and information provided to it in response to its first set of drawings.

Buck Steel was ultimately terminated from the Project but only after ETI had retained another company to provide the drawings and the steel building. The trial court ultimately concluded that Buck Steel breached the Contract because it failed to provide drawings which were acceptable. The trial court did not find any breach on the part of ETI, although in failing to award delay damages to ETI, the trial concluded that ETI did not prove that Buck Steel was “the sole cause of any of the delay damages it claim[ed].” It noted that, under the terms of ETI’s contract with the State, the building was scheduled for completion prior to ETI’s initial contact with Buck Steel. Clearly, the delay in the completion of the Project was not solely related to Buck Steel’s failure to timely provide acceptable drawings.

In finding that Buck Steel was entitled to retain the sums paid to it by ETI, the trial court noted concern “with ETI’s failure to notify Buck [Steel] of its dissatisfaction” and also that, due to “the fact that ETI entered into its contract with USA without any attempt at trying to recover its prior deposits from Buck [Steel],” this “suggested] that ETI knew that that money was lost to it.”

After a review of the record, we find no manifest error in this ruling. As we have noted, the Contract called not only for the sale of materials to be used in the construction of the metal building, but also for Buck Steel to produce engineered stamped drawings. The Contract did not, however, separate the charges for the |14various items; thus, while the lump sum for the Contract was $87,632,00, there is no differentiation of the charges for preparing the drawings as opposed to the costs for the materials. Nor was there any trial testimony indicating a breakdown of these costs.

Because Buck Steel did prepare two sets of drawings for the Project, despite their lack of approval by the architects and engineers, we agree with the trial court that Buck Steel is entitled to be paid for the work it performed. We find the circumstances of this case analogous to general breach of construction contracting cases, which hold that:

If the plaintiff has substantially performed his contract with the defendant, then he is entitled to be paid. If his work under the contract is faulty or defective, he is still entitled to be paid under the terms of his contract, and the defendant’s right if the work has not been completed is to finish it or if it is faulty or defective to make the necessary correction and charge the cost thereof to the plaintiff.

D’Avy v. Briley, 72 So.2d 758, 760 (La. App. 1 Cir. 1954). Similarly, this Court has held:

,.. [W]ell settled is the rule that in fixed price contract cases where a contractor has substantially performed the contract he is entitled to recover the contract price while the owner is entitled to recover the cost of correction and completion. Where there has been no substantial performance the contractor is entitled to recover from the owner in quantum meruit.

Planning Sys. Corp. v. Murrell, 374 So.2d 719, 722 (La. App. 4 Cir. 1979). See also, Acadiana Health Club, Inc. v. Hebert, 469 So.2d 1186, 1190 (La. App. 3d Cir. 1985)(“if there has not been substantial performance, the owner is entitled to damages and may rescind the contract and require return to the status quo”).

11fiBased on the foregoing, we find no manifest error in the trial court’s finding that Buck Steel was entitled to be paid for the work it performed. Here, rather than continuing to work with Buck Steel to ensure that the drawings were ultimately approved, ETI retained another company to take over the object of its contract with Buck Steel and then terminated its relationship with Buck Steel.

Trial court’s failure to award costs

While ETI concedes that trial court has “great discretion” in awarding costs, ETI nevertheless maintains that the trial court erred in ordering each party to bear its own costs. It reasons that, because the trial court found a breach of the Contract solely on Buck Steel’s part, Buck Steel should have been ordered to pay ETI’s costs.

Louisiana Code of Civil Procedure article 1920 governs the awarding of costs by the trial court and provides as follows:

Unless the judgment provides otherwise, costs shall be paid by the party cast, and may be taxed by a rule to show cause, Except as otherwise provided by law, the court may render judgment for costs, or any part thereof, against any party, as it may consider equitable.

As our jurisprudence indicates, “[t]he assessment of costs lies within the trial court’s discretion, and that assessment of costs is to be reversed only if the trial court abuses that discretion.” Delaney v. Whitney Nat. Bank, 96-2144, 97-0254 (La.App. 4 Cir. 11/12/97), 703 So.2d 709, 720. This Court has repeatedly held that, while the general rule is that the party cast in judgment should be taxed with costs, the trial court has discretion to assess costs in any equitable manner. Lakewood Prop. Owners’ Ass’n v. Smith, 14-1376, p. 25 (La.App. 4 Cir. 12/23/15), 183 So.3d 780, 795, writ denied, 2016-0138 (La. 2/26/16), 187 So.3d 469, citing 11 Rubenstein v. City of New Orleans, 07-1211, p. 6 (La.App. 4 Cir. 4/30/08), 982 So.2d 964, 968; See also, Miralda v. Gonzalez, 14-0888, p. 31 (La.App. 4 Cir. 2/4/15), 160 So.3d 998, 1017; Amato v. Office of Louisiana Com’r of Sec., 94-0082, p. 12 (La.App. 4 Cir. 10/3/94), 644 So.2d 412, 419. Likewise, the “the trial court has discretion to deny costs [even] to the prevailing party.” Lakewood Prop. Owners’ Ass’n, 14-1376, p. 25, 183 So.3d at 795.

We recently noted in Miralda, when the “record is devoid of any indication as to why the trial court declined to tax [the non-prevailing party] with all the costs.... we are unable to conclude that the trial court abused its discretion in condemning each party to bear his own costs.” Miralda, 14-0888, p. 32, 160 So.3d at 1018. In the instant matter, the record contains no information as to the trial court’s decision to cast each party with its own costs. We therefore cannot find an abuse of the trial court’s discretion in failing to award all costs to ETI. We also note that the judgment is favorable to Buck Steel as well, in that the judgment specified that Buck Steel could retain the sums paid to it by ETI (in other words, it failed to order Buck Steel to return those sums, as prayed for by ETI), particularly when the judgment is favorable, in certain respects, to both parties.

CONCLUSION

For the reasons set forth herein, we affirm the trial court’s judgment.

AFFIRMED

LOBRANO, J., CONCURS IN THE RESULT.

      . In its Reasons for Judgment, the trial court specified that the damages awarded to ETI consisted of the following: $21,155.32 for the “increased amount paid to USA [the subcontractor which replaced Buck Steel] after ETI fired Buck [Steel]" and $25,039.00 for the “amount of unused steel ETI paid for but could not use.”

      . Buck Steel conceded the mathematical error in the trial court’s judgment.

      . The judgment also noted: (1) that the trial court’s prior “conclusion that Buck Steel did not receive Addendum # 2 before 26 March 2012 is not clearly contrary to the law and evidence;” (2) that "allowing Buck Steel to retain the deposits under the contract is not contrary to the law and evidence;” and (3) that its finding "that Buck Steel is a vendor is not contrary to the law and evidence.”

        .See, e.g., Landis Const. Co. v. St. Bernard Par., 14-0096, p. 5 (La.App. 4 Cir. 10/22/14), 151 So.3d 959, 963, writ denied, 14-2451 (La. 2/13/15), 159 So.3d 467.

      . La. R.S. 37:2150.l(4)(a) defines "contractor” as "any person who undertakes to, attempts to, or submits a price or bid or offers to construct, supervise, superintend, oversee, direct, or in any manner assume charge of the construction, alteration, repair, improvement, movement, demolition, putting up, tearing down, or furnishing labor, or furnishing labor together with material or equipment, or installing the same for any building, highway, road, railroad, sewer, grading, excavation, pipeline, public utility structure, project development, housing, or housing development, improvement, or any other construction undertaking for which the entire cost of same is fifty thousand dollars or more when such property is to be used for commercial purposes other than a single residential duplex, a single residential triplex, or a single residential fouiplex ...."

      . The "building price” lists the following items: base building as per engineering specifications, closure strip package, engineered stamped drawings, anchor bolt plans, letter of certification, 7 door canopies, gutters, downspouts and building and accessory freight.

      . This was the conclusion of the trial court, which in its reasons for judgment noted that, although the "agreement mentioned the erection of the steel structure, the amount set forth in the Contract does not include that part of the agreement... ETI understood, when they signed the agreement, that Buck [Steel] had no responsibility for the erection of the structure,”

      .The erecting contract contained in the record was signed only by ETI.

      . The trial court rejected Buck Steel’s contention that ETI breached the contract when it retained USA to replace Buck Steel prior to terminating its relationship with Buck Steel and, similarly, rejected Buck Steel’s demand for liquidated damages as provided in the terms and conditions of the contract.


author: EZELL, Judge.

text:
    Camilla Julianna FARRAR, et al. v. Linda Faye WHALEY
    16-790
    Court of Appeal of Louisiana, Third Circuit.
    02/01/2017

      Wilford D. Carter, 1025 Mill Street, Lake Charles, LA 70601, (337) 564-6990, COUNSEL FOR DEFENDANT/APPELLANT: Linda Faye Whaley
    Annette F. Roach, Roach & Roach, APLC, 724 Moss Street, Lake Charles, LA 70601, (337) 436-2900, COUNSEL FOR DEFENDANT/APPELLANT: Linda Faye Whaley
    Timothy O’Dowd, 921 Ryan St., Suite D, Lake Charles, LA 70601, (337) 310-2304, COUNSEL FOR PLAINTIFF/APPEL-LEE: Camilla Julianna Farrar, et al.
    Court composed of Elizabeth A. Pickett, Billy Howard Ezell, and John E. Conery, Judges.
   EZELL, Judge.

|, This appeal involves donations inter vi-vos made by Joyce Thompson to her caretaker, Linda Whaley. Camilla Farrar, as independent administratrix of Ms. Thompson’s succession, filed suit on behalf of the succession against Ms. Whaley for the return of funds and assets she claimed were improperly transferred to Ms. Whaley from Ms. Thompson. Mrs. Farrar is Ms. Thompson’s daughter. Ms. Whaley appeals the trial court judgment finding that an automobile was not properly donated to her and ordering her to return cash she withdrew after Ms. Thompson’s death, representing the amount of bonds she claims Ms. Thompson donated to her before her death. She also claims the trial court erred in not reimbursing her for the payment of funeral expenses for Ms. Thompson and in assessing all court costs to her.

Mrs. Farrar answered the appeal. Mrs, Farrar argues that the trial court used the wrong standard of review in analyzing the donations and asks that this court perform a de novo review of the testimony and evidence. She claims that the trial court erred in finding that there were multiple valid donations inter vivos of cash to Ms. Whaley. Mrs. Farrar further claims that interest on any of the sums due should run from the date of conversion as opposed to judicial demand.

FACTS

Ms. Thompson was admitted to Lake Charles Memorial Hospital in May 2012. At that time, Ms. Whaley’s husband was working as an orderly at the hospital. Ms. Thompson asked Ms. Whaley’s husband if he knew of someone who could take care of her when she got out of the hospital. He informed Ms. Thompson that his wife, who was a certified nursing assistant, could take care of Rher. Ms. Whaley began working for Ms. Thompson in June 2012 at the rate of $15.00 an hour.

Ms. Whaley testified that sometime in August 2012, Ms. Thompson promised to leave her all her belongings if she would take care of her because she and her daughter did not get along. On August 24, 2012, a will was typed leaving everything to Ms. Whaley. The will shows the signatures of both Ms. Thompson and Ms. Wha-ley. Caroline Glenn and Natasha Minor signed the will as witnesses. Ms. Glenn is Ms. Whaley’s sister, and Ms. Minor is Ms. Whaley’s daughter.

During her deposition, Ms. Whaley testified that one month before the execution of that will, Ms. Thompson wanted her to type a letter which specifically revoked all prior wills, listed her assets, and named Ms. Whaley as power of attorney. However, the content of the letter indicates it was written on October 7, 2012, a month-and-a-half after the will was written. Even more confusing, a separate handwritten page was signed by Ms. Whaley and dated August 24, 2012, indicating she wrote the letter.

A second will with the exact wording and parties’ signatures was also purportedly executed on August 24, 2012. Also, another typed letter with the exact wording as the October 2012 letter was also executed. However, this time both the will and letter.were notarized by Wanella Gibson on August 24, 2012, It is not disputed that neither the first will nor the second will was sufficient for probate under Louisiana law.

In February 2013, Ms. Thompson went to stay at Resthaven Nursing Home. On May 16, 2013, Ms. Thompson executed a general power of attorney naming Ms. Whaley to act on her behalf. The document was witnessed by Amanda Williams and Shelby Corbett and notarized by Lesa Higginbotham. A second Rpower of attorney was executed four days later on May 20, 2013, because the first power of attorney was not detailed enough for the banks to allow Ms. Whaley to act on Ms. Thompson’s behalf. This power of attorney was notarized by Wanella Gibson and witnessed by Carol Williams and Mary Jackson.

Following Ms. Thompson’s admittance to Resthaven Nursing Home, Ms. Whaley claimed that Ms. Thompson made several donations to her in the form of cash, U.S. savings bonds, and a car. Ms. Thompson died on September 5, 2013. Ms. Whaley testified that she did not notify Ms. Thompson’s daughter of her death because Ms. Whaley asked her not to. Charles Farrar, Ms. Farrar’s husband, testified that he was notified that Ms. Thompson died when an insurance agent called him to inform him that Ms. Whaley was trying to collect insurance that was in his son’s name.

Following Ms. Thompson’s death, Ms. Farrar was appointed independent admin-istratix of her mother’s succession. On October 15, 2013, Ms. Farrar filed a petition for a temporary restraining order, preliminary injunction, and damages against Ms. Whaley seeking the return of assets and funds. A trial was held on December 10 and 11, 2015. The trial court found that any personal, movable items given to Ms. Whaley prior to Ms. Thompson’s death were part of a completed donation. The trial court then found that the transfers of cash and bonds after Ms. Thompson’s death were not valid and must be returned to her estate. The court further found that there was no evidence of any jewelry or coins in Ms. Thompson’s possession at the time of death. Regarding Ms. Thompson’s car, the trial court held that transfer of a vehicle must be completed by an authentic act. Since Ms. Thompson did not sign the transfer of title prior to her death, the trial court found that the car was not properly donated to Ms. Whaley.

| ¿Ms. Whaley then filed the present appeal contesting some of the trial court’s decisions. Ms. Farrar answered the appeal also complaining about the trial court’s decisions.

MOTION TO STRIKE BRIEF

We must first address the motion to strike the appellee’s brief in its entirety filed by counsel for Ms. Whaley. She argues that that the brief is both insulting and discourteous, not only toward Ms. Whaley and defense witnesses, but also toward defense counsel, particularly trial counsel, who is not appellate counsel, and the trial judge. Specifically, counsel objects to the repeated use of the terms “forge”, “flimsy”, and “scripted”.

Uniform Rules—Courts of Appeal, Rule 2-12.2(C) provides:

The language used in the brief shall be courteous, free from vile, obscene, obnoxious, of offensive expressions, and free from insulting, abusive, discourteous, or irrelevant matter or criticism of any person, class of persons or association of persons, or any court, or judge or other officer thereof, or of any institution. Any violation of this Subsection shall subject the author, or authors, of the brief to punishment for contempt of court, and to having such brief returned.

Several of the documents relied upon by Ms. Whaley to prove Ms. Thompson’s do-native intent were examined by a court-appointed handwriting expert. As will be discussed further in this opinion, it was established that many of these documents appeared to be signed by Ms. Thompson but were actually a forgery of her signature. Even the trial court indicated at trial that it was concerned that Ms. Whaley’s testimony and the supporting testimony of her witnesses was fabricated. We do not find Ms. Farrar’s brief meets any of the parameters described in Uniform Rules— Courts of Appeal, Rule 2-12.2(C). Therefore, we deny the motion to strike her brief.

I .STANDARD OF REVIEW

We next address Ms. Farrar’s argument that the trial court committed legal error by applying the standard for establishing a donation mortis causa in determining the intentions required for a donation inter vivos. Mrs. Farrar contends that a review of the trial court’s reasons for judgment indicates that it considered evidence of Ms. Thompson’s intent for donations mortis causa sufficient to establish the intent required for a donation inter vivos.

Mrs. Farrar cites Butler v. Reddick, 431 So.2d 396 (La.1983), which held that the burden of establishing a donation inter vivos is on the donee which must be established with strong and convincing evidence. In its reasons for judgment, the trial court stated that “Whaley must show by strong and convincing evidence the donative intent of Ms. [Thompson].” The trial court then goes on further to state that “[i]f it were only a matter of Whaley’s testimony as to what Ms. [Thompson] wanted to donate prior to her death, there would not be sufficient evidence. However, combined with verified documentations of her wishes, that evidence may be sufficient.”

We find that the trial court used the proper burden of proof in deciding whether there were valid donations inter vivos from Ms. Thompson to Ms. Whaley, proof by clear and convincing evidence. Proof by clear and convincing evidence “requires more than a ‘preponderance of the evidence’ but less than ‘beyond a reasonable doubt.’ ” Succession of Wiggins, 08-68, p. 3 (La.App. 8 Cir. 6/4/08), 984 So.2d 948, 950, writ denied, 08-1355 (La. 9/26/08), 992 So.2d 989 (quoting Succession of Lyons, 452 So.2d 1161, 1165 (La.1984)). In other words, “[t]he existence of the disputed fact must be highly probable, that is, much more probable that is non-existence.” Id. “This standard is usually employed ‘where there is | ^thought to be special danger of deception, or ‘where the court considers that the particular type of claim should be disfavored on policy grounds.’ ” Id. Therefore, we will review the trial court’s decision under the manifest error standard since donative intent is a factual issue. Succession of Love, 16-245 (La.App. 3 Cir. 9/28/16), 201 So.3d 1027.

[A] trial court’s finding on this issue cannot be reversed unless an appellate court, after review of the entire record, finds both that no reasonable factual basis exists for the finding and that it is manifestly erroneous or clearly wrong. See Stobart v. State, Through DOTD, 617 So.2d 880 (La.1993). In applying this standard, a trial court’s credibility determinations are entitled to great deference. Hebert v. Rapides Parish Police Jury, 06-2001 (La. 4/11/07), 974 So.2d 635 (on rehearing). The reviewing court must keep in mind that if a trial court’s findings are reasonable based upon the entire record and evidence, an appellate court may not reverse even if it is convinced that had it been sitting as trier of fact it would have weighed the evidence differently. Housley v. Cerise, 579 So.2d 973 (La.1991). This principle is grounded not only upon the better capacity of the trial court to evaluate live witnesses, but also upon the proper allocation of trial and appellate functions between the respective courts. Canter v. Koehring Co., 283 So.2d 716 (La.1973).

Id. at 1030.

DONATIONS INTER VIVOS

“A donation inter vivos is a contract by which a person, called the donor, gratuitously divests himself, at present and irrevocably, of the thing given in favor of another, called the donee, who accepts it.” La.Civ.Code art. 1468. Donations inter vi-vos are to be made by authentic act unless otherwise permitted by law. La.Civ.Code art. 1541. “The donation inter vivos of a corporeal movable may also be made by delivery of the thing to the donee without any other formality.” La.Civ.Code art. 1543.

Mrs. Farrar makes the general argument that there is not clear and convincing evidence that Ms. Thompson intended to make any of the donations to 17Ms. Wha-ley. Mrs. Farrar argues that Ms. Whaley relied on her own self-serving testimony and documents that were forged to establish the donative intent of Ms. Thompson. Mrs. Farrar claims this is not sufficient to establish clearly and convincingly that Ms. Thompson intended to make any donations inter vivos to Ms. Whaley.

On February 13, 2014, Mrs. Farrar filed a motion to appoint an expert to examine various documents allegedly signed by Ms. Thompson to determine whether they had been tampered with or notarized subsequent to the signing. After a hearing on the motions, the court appointed Robert Foley, a forensic document examiner and handwriting expert, who testified at trial. His report was introduced into evidence. As part of his examination, he examined the following documents:

1. Original—Last Will and Testament of Joyce E. Thompson, dated August 24, 2012.
2. Original—Last Will and Testament of Joyce E. Thompson dated August 24, 2012.
3. Original—General Power of Attorney, dated May 16,2013.
4. Original—Power of Attorney, dated May 20, 2013, which was notarized.
5. Photostatic Copy—Vehicle Title, dated July 26, 2013.
6. Photostatic Copy—Affidavit of Error, to show that seller’s names shown as the purchaser in error and listing Ms. Whaley as the correct purchaser, dated September 23, 20? ?. This document was also notarized.
7. Originals of forty-one US Treasury Series EE bonds, redeemed on September 5, 2013.
8. Photostatic Copy—Note 3 lines long, signed by Joyce E. Thompson, dated August 24, 2012, crediting Ms. Whaley for all she did for her.
9. Original handwritten letter on envelope, date referenced in letter as October 7, 2012, unsigned, acknowledging her hospital stay | «and all Ms. Whaley did for her, indicating she wants to leave all her belongings to Ms. Whaley.

In addition to offering his conclusions regarding the documents in his report, Mr. Foley also testified at trial. Mr. Foley testified that the first will, which was not notarized, was signed by Ms. Thompson and two witnesses. This will left everything to Ms. Whaley. Mr. Foley further testified that the second will was actually a photocopy of the first will with an original notarial seal added. Mr. Foley explained that the notarial signature had originally been dated August 24, 2013, but then the “3” was changed to a “2”. Mr. Foley also found that Ms. Thompson did sign the general power of attorney dated May 16, 2013. Mr. Foley finally concluded that Ms. Thompson did not sign the May 20, 2013 power of attorney, the vehicle title, the affidavit of error nor the forty-nine US Treasury Series EE bonds. We note that the notary who notarized the second-copied will, the May 20, 2013 power of attorney, the vehicle title, and the affidavit of error was the same person. By the time of trial, this notary was deceased. The general power of attorney dated May 16, 2013, was notarized by a different person.

Mr. Foley also found that the two handwritten letters from August and October 2012 did contain Ms. Thompson’s signature. Mr. Foley explained he did not have enough comparable handwriting to know whether Ms. Thompson actually wrote the content of the letters.

In its reasons for judgment, the trial court stated:

[W]hile the several documents actually executed by Ms. [Thompson] lack details as to proper/notarization, they do express her interest in giving her possessions to Whaley. If it were only a matter of Whaley’s testimony as to what Ms. [Thompson] wanted to donate prior to her death, there would not be sufficient evidence. However, combined with verified documentations of her wishes, that evidence may be sufficient. The Last Will and Testament was signed by Ms. [Thompson] as well as the letter dated October 7, 2012. Both of the 19documents demonstrate to the Court Ms. [Thompson’s] intent was to give Whaley personal property as well as contents of the home—her movable property. It is very apparent that Whaley recognized that Ms. [Thompson] had little or no fondness for family who, in her mind, had abandoned and neglected her. And, while Whaley quickly took advantage of a lonely, despondent Ms. [Thompson], there was no evidence suggesting that Ms. [Thompson] was of feeble mind. To the contrary, workers from the nursing home, as well as Whaley and her sister, suggested otherwise. Accordingly, any personal, movable items give to Whaley pre-death are part of a completed donation.

Then, in a footnote, the trial court further noted:

It is apparent that Whaley could well have taken a different course in her care of Ms. [Thompson], However, she chose to play into the woeful state of Ms. [Thompson’s] lonely life. The Farrars could well have prevented such an abuse by being more mindful of Ms. [Thompson’s] care. It is unconscionable that in the 15 months that Whaley was “caring” for her that they no clue of what Ms. [Thompson] was contemplating nor that she had even been placed in a nursing home prior to her death. An elder woman with the disposable monies and possessions that Ms. [Thompson] had should have been tended more closely by the family.

Mr. Farrar testified at trial, and Mrs. Farrar testified by video deposition. The Farrars live in Denham Springs. Mrs. Far-rar suffers with cerebral palsy and degenerative disc disease which prevents her from traveling in a car for long distances. Mrs. Farrar testified that she and her mother had their ups and downs but they would meet occasionally in' Lafayette to eat. Mrs. Farrar called her mother while she was in the hospital. When the Farrars came to Lake Charles for his father’s funeral in October 2012, they went by Ms. Thompson’s house, but she never came to the door. Mrs. Farrar testified that she continued to try calling but never got an answer. Mr. Farrar did go by during Thanksgiving 2012. They had no idea that she was later placed in a nursing home.

Roger Ryan also testified at trial. Mr. Ryan was paid to take care of Ms. Thompson’s yard for over fifteen years. He also ran errands for her. On occasion, he would drive Ms. Thompson to Lafayette to see her daughter. During Hurricane |inRita in 2005, Ms. Thompson’s grandson, who was living with her at the time, drove her to the Farrars’ house. After the hurricane, Mr. Ryan had to later go get Ms. Thompson due to a disagreement between her and her daughter. Mr. Ryan testified that Ms. Thompson told him that she wanted him to have a lot of her possessions also, just as she told Ms. Whaley. However, Ms. Thompson never gave him anything. Ms. Thompson never told Mr. Ryan that she wanted to disinherit her daughter. He testified that the two had problems, but that was how they got along. Mr. Ryan wanted to visit with Ms. Thompson in the nursing home but he testified that Ms. Whaley told him that Ms. Thompson did not want to see him. Ms. Whaley testified that Ms. Thompson did not trust Mr. Ryan anymore and did not even want him visiting with her at her house.

In her deposition testimony, Ms. Whaley explained that she never made a gift to herself. She further stated that no one was present when Ms. Thompson told her to make gifts to herself. However, at trial, Ms. Whaley testified that she would withdraw money out of Ms. Thompson’s bank account and bring it to Ms. Thompson. Ms. Thompson would then gift it to her in front of someone. At trial, Ms. Glenn, Ms. Wha-ley’s sister, stated she saw Ms. Thompson give cash to Ms. Whaley on several occasions. Ms. Whaley explained that in her deposition testimony she thought the question was whether someone witnessed her withdraw the money out of the bank account.

Several employees of Resthaven Nursing Home who worked there as the same time as Ms. Thompson was a resident also testified at trial. Kathleen Dougay, a social worker at the nursing home, testified that Ms. Whaley went to the nursing home on a daily basis, spending the majority of the day with Ms. Thompson. Ms. Thompson told Ms. Dougay that she had no relationship with her family and that |n Ms. Wha-ley was her power of attorney. Ms. Dougay further stated that there was never a question of Ms. Thompson’s mental capacity.

Jessica Lake, an LPN at the nursing home, agreed that Ms. Whaley was there pretty much every day. She testified that Ms. Thompson loved Ms. Whaley and that Ms. Thompson told her she did not have a relationship with her daughter.

Layshaone Seymore, activity coordinator at the nursing home, also testified that Ms. Whaley was there almost every day, all day. She agreed that Ms. Thompson admired Ms. Whaley.

There is no doubt that Ms. Thompson relied on Ms. Whaley and expressed a desire to leave personal possessions to Ms. Whaley when the original attempt at a will was executed. However, further testimony casts doubt as to whether she wanted to divest herself of these items before she died.

In her deposition testimony, Ms. Whaley testified that she borrowed approximately $9,800.00 from Ms. Thompson to make repairs to her home. At trial, she testified that she borrowed this money around February 2013. In order to pay back Ms. Thompson, Ms. Whaley and Ms. Thompson agreed that Ms. Whaley would receive less money for her weekly services. Mr. Ryan confirmed Ms. Whaley’s testimony when he testified that Ms. Whaley told him she got a loan from Ms. Thompson. He further stated that he personally did some repair work on Ms. Whaley’s home in 2013.

With this testimony and evidence in mind, we will now address the findings of the trial court regarding the particular donations that the parties complain about on appeal. We will first address Mrs. Far-rar’s claim that the trial court erred in finding that the donations of cash Ms. Thompson made to Ms. Whaley while she was still alive were valid donations inter vivos.

jjj>Cash Donations

In her answer to the appeal) Ms. Farrar complains about several cash donations that the trial court found Ms. Thompson made to Ms. Whaley while she was still living. At trial, Ms. Whaley testified that she wrote checks and cashed them at the bank. She would then present the cash to Ms. Thompson, who would then hand her back the cash. The trial court found that the cash donations were part of a completed donation inter vivos based on the testimony and evidence introduced at trial. On appeal, Mrs. Farrar argues that we should find that the following withdrawals were not donations and Ms. Whaley should return the funds to the succession:

May 28, 2013 $3,850.00
June 25, 2013 $5,665.66
July 8, 2013 $1,872.00
August 7, 2013 $5,000.00
August 14, 2013 $42,005.90
August 20, 2013 $12,765.00
August 30, 2013 $2,760.00

Based on the previously discussed testimony and evidence, we disagree with the trial court that there was clear and convincing evidence that Ms. Thompson intended to donate sums of cash to Ms. Whaley before her death.

At trial, Ms. Whaley did testify and offer documentary proof that the withdrawal from Ms. Thompson’s account-of $12,765.00 on August 20, 2013, was to pay Ms. Thompson’s bill at Resthaven. Therefore, we find that this withdrawal was clearly not a donation to Ms. Whaley. However, when questioned about the other withdrawals of cash on May 28, June 25, July 8, August 7, August 14, and 11sAugust 30, 2013, Ms. Whaley testified that this was money she personally received from Ms. Thompson.

Ms. Thompson was paid $15.00 an hour when she went to work for Ms. Wha-ley. However, this amount was reduced to $10.00 an hour when Ms. Whaley began repaying Ms. Thompson for the loan to fix her home. We note that there is no doubt that Ms. Thompson tried to write a will attempting to leave everything to Ms. Whaley at her death, yet money she loaned Ms. Whaley she expected to be paid back while she was still living.

Furthermore, Mr. Ryan worked for Ms. Thompson for many years, with Ms. Thompson also promising to leave him all her possessions when she died. However, she never gave him extra cash. We find it very telling that Ms. Whaley had no witnesses to these cash donations when she testified at her deposition. However, by the time of trial, her sister could corroborate the donations. There is no evidence other than Ms. Whaley’s own self-serving testimony along with her sister’s sudden trial testimony that Ms. Thompson made these donations of cash. Although employees of Resthaven knew how much Ms. Thompson relied on Ms. Whaley, none of these employees testified that Ms. Thompson made cash donations to Ms. Whaley or even indicated to them that she was giving Ms. Whaley any money.

For these reasons, we find manifest error in the trial court’s determination that these six withdrawals were donations inter vivos of cash to Ms. Whaley. Therefore, we reverse the trial court’s judgment as to these withdrawals and find Ms. Whaley liable to the succession for the return of $61,153.56.

juAutomobile

Ms. Whaley argues that the trial court erred in finding that the donation of Ms. Thompson’s automobile was not accomplished prior to her death and awarding the succession $6,000.00, the estimated value of the automobile. The automobile was a 2008 Dodge Caliber. She argues that the trial court erred in concluding that the transfer of the automobile required an authentic act and the actual transfer of the title to complete the donation.

Louisiana Civil Code Article 1543 provides that “[t]he donation inter vivos of a corporeal movable also may be made by delivery of the thing to the donee without any other formality.” Relying on the predecessor to this article, La.Civ.Code art. 1539, this court held that the ownership of an automobile between parties can change without transfer of title. Soileau v. Soileau, 95-578 (La.App. 3 Cir. 11/2/95), 664 So.2d 551; Hayden v. Spencer, 04-1140 (La.App. 3 Cir. 2/2/05), 894 So.2d 551, writ denied, 05-982 (La. 6/3/05), 903 So.2d 464.

Therefore, the trial court was incorrect that the transfer of the automobile required an authentic act. Since the trial court’s decision was based on its erroneous application of the law, as opposed to a valid exercise of discretion, we are not required to give deference to the trial court’s decision. Watkins v. Lake Charles Mem’l Hosp., 12-1320 (La.App. 3 Cir. 4/17/13), 114 So.3d 503, writ granted, 13-1137 (La. 9/13/13), 120 So.3d 275, affirmed, 13-1137 (La. 3/25/14), 144 So.3d 944. Therefore, we will conduct a de novo review of the facts pertaining to the donation of the automobile. Id.

Our review of the facts surrounding the donation of the automobile reveals that Ms. Whaley used the car to run errands for Ms. Thompson and take care of Ms. Thompson’s dogs. Ms. Whaley testified that Ms. Thompson came up with the idea |1sof giving her the car in July of 2013. Ms. Whaley stated that the notary came to the nursing home and the information for transfer of the car was filled out on the back of the title. However, we note that this is one of the documents that Mr. Foley testified did not contain Ms. Thompson’s actual signature.

Contrary to Ms. "Whaley’s testimony, Ms. Glenn testified that she, Ms. Whaley, and Ms. "Whaley’s daughter picked up Ms. Thompson at the nursing home and took her to the notary’s office. They then all signed the vehicle title at the notary’s office with Ms. Thompson present.

Based on the evidence and testimony, we cannot say that there was clear and convincing evidence that Ms. Thompson wanted to donate her car in July 2013 to Ms. "Whaley. Therefore, while the trial court was incorrect in its application of the law, we do find that the trial court reached the right result in finding that there was not a valid donation inter vivos of the automobile.

Ms. Thompson also argues that Mrs. Farrar presented no evidence to establish the value of the car. The judgment valued the automobile at $6,000.00 based on the value of the automobile listed in the sworn detailed descriptive list prepared on September 12, 2013, in the succession proceedings.

Louisiana Code of Civil Procedure Article 3137 provides that the descriptive list of succession property is prima facie proof of all matters shown in it. Ms. Thompson’s entire succession record, including the detailed descriptive list, was introduced into evidence at trial. Ms. Whaley knew the validity of the donation of the car was at issue. Ms. Whaley made no attempt to counter this evidence with any other evidence as to the value of the automobile. Therefore, we find that the trial court was correct in valuing the vehicle- at $6,000.00.

11⅛⅛

Ms. Whaley next argues that the trial court erred in ordering her to return $33,222.34, representing the cash proceeds from the U.S. Series EE bonds that Ms. Thompson gave her. She claims that she provided proof of the completed donation before Ms. Thompson’s death.

Ms. Whaley testified that a couple of months before Ms. Thompson died, she told Ms. Whaley to go to the house and get the bonds out of a dresser. In July 2013, bonds in the amount of $5,000.00 were cashed in. The bonds were signed by Ms. Thompson with Ms. Whaley signing as power of attorney. Ms. Whaley testified that she held onto the rest of the bonds. Ms. Whaley got a call around 2:00 a.m. the morning of Ms. Thompson’s death that she was being transported to the emergency room at Lake Charles Memorial Hospital. Later that morning, Ms. Whaley attempted to deposit the bonds into her personal bank account, but her bank would not accept the bonds because Ms. Thompson’s name was not on the account. Ms. Whaley deposited the savings bond in question valued at $33,222.34 into Ms. Thompson’s account at Iberia Bank. Ms. Whaley explained that she signed the remaining bonds as Joyce Thompson, based on the power of attorney executed by Ms. Thompson in her favor. However, she did not sign as Linda Whaley as power of attorney, as she had previously done when the bonds in the amount of $5,000.00 were cashed in. Only the signature of a Joyce Thompson appeared on these bonds. Mr. Foley also testified that Ms. Thompson did not sign these bonds.

The following day after Ms. Thompson died, September 6, 2013, Ms. Whaley withdrew $30,000.00 from Ms. Thompson’s account at Iberia Bank. She also withdrew $14,000.00 from another of Ms, Thompson’s accounts at a different 117bank. Based on these post-death withdrawals, the trial court ordered Ms. Whaley to return $44,000.00 to the succession.

Federal law and not state law applies to donations inter vivos of United States savings bonds. Gaupp v. Tarver, 691 So.2d 107 (La.App. 1 Cir.), writ denied, 692 So.2d 1093 (La.1997). The first circuit explained the law applicable to United Savings bonds as follows:

Article 1, Section 8, Clause 2 of the United States Constitution delegates to the federal government the power “to borrow Money on the credit of the United States.” Free v. Bland, 369 U.S. [663] at 666-67, 82 S.Ct. [1089] at 1092 [8 L.Ed.2d 180 (1962) ]. Pursuant to this grant of power, Congress authorized the Secretary of the. Treasury, with the approval of the President of the United States, to issue savings bonds, 31 U.S.C. § 3105(a). That statutory provision also delegates to the Secretary of the Treasury the authority to prescribe rules and regulations controlling the obligations associated with the issuance of United States savings bonds. 31 U.S.C. § 3105(b)(1). The law is clear that United States savings bonds are governed strictly by federal law, and not by state law. Free v. Bland, 369 U.S. at 669-70, 82 S.Ct. at 1094; Succession of Weis, 162 So.2d 791, 794 (La.App. 4th Cir. 1964).
Savings bonds are issued in registered form only. 31 CFR § 315.5(a). The registration expresses the actual ownership of, and interest in, the savings bond. 31 CFR § 315.5(a). Under 31 CFR § 315.5(a), the registration of ownership is conclusive. Moreover, the only forms recognized by the United States government are single ownership, co-ownership, and beneficiary forms. 31 CFR § 315.7. Savings bonds are not transferable and are payable only to the owners named in the savings bonds. 31 CFR § 315.15.
A savings bond may be registered in the names of two individuals, in the alternative, as co-owners. 31 CFR § 315.7(b)(2). In such cases, the form of the registration is in the name of one co-owner “or” the other co-owner. A savings bond registered in co-ownership form can be paid to either co-owner upon surrender with an appropriate request, and, upon payment, the other co-owner ceases to have any interest in the bond. 31 CFR § 315.37. If one of the co-owners dies, the surviving co-owner is recognized as the sole and absolute owner of the bond, and payment is made as though the bond were registered in the name of the survivor alone. 31 CFR § 315.70(b)(1).
A savings bond may also be registered in the name of an individual payable on the death of another. 31 CFR § 315.7(b)(3). The | 1sform of registration is in the name of the owner “payable on death to ” the beneficiary. A savings bond registered in beneficiary form is paid to the registered owner during his lifetime upon surrender with an appropriate request, and upon payment, the beneficiary ceases to have any interest in the bond. 31 CFR § 315.38. If the owner of a bond registered in beneficiary form dies and is survived by the beneficiary, the beneficiary is recognized as the sole and absolute owner of the savings bond. 31 CFR § 315.70(c)(1).

Gaupp, 691 So.2d at 109-10.

The bonds were issued in several different forms, either as a beneficiary form payable upon death to Ariana Farrar, Steven Farrar, or Camilla Farrar. Other bonds were in co-ownership form with the same three people listed on different bonds as the co-owner with Joyce Thompson. Therefore, Ms. Thompson could not accomplish a donation of these bonds by corporeal delivery to Ms. Whaley. For these reasons, the trial court’s decision ordering Ms. Whaley to return the $30,000.00 from the proceeds of these bonds was correct.

FUNERAL EXPENSES

Ms. Whaley further claims that the amount she is ordered to repay should be reduced by the amount she paid in funeral expenses for Ms. Thompson, $7,417.55. She is correct that funeral expenses are debts of the estate and a priority claim against the succession. La.Civ.Code arts. 1415 and 3276. The succession proceedings were introduced into evidence and indicate that Ms. Whaley filed a claim for reimbursement of funeral expenses in that proceeding on May 31, 2016. Therefore, Ms. Whaley’s claim for reimbursement of the funeral expenses is more properly addressed in the succession proceedings, and we will not address this issue in the present proceeding.

| igINTEREST mUM

In her answer to the appeal, Mrs. Farrar asked that we amend the judgment to order that interest on the amounts converted by Ms. Whaley run from the date the funds were converted as opposed to date of judicial demand. In her petition, Mrs. Farrar did request that interest run from the date the funds were converted by Ms. Whaley.

Louisiana Code of Civil Procedure Article 1921 provides that “[t]he court shall award interest in the judgment as prayed for or as provided by law.” In Lafleur v. Sylvester, 135 So.2d 91 (La.App. 3 Cir. 1961), this court recognized that interest on damages for conversion is usually awarded from the day of conversion. Therefore, we agree with Mrs. Farrar that interest on the sums Ms. Whaley was ordered to return should run from the dates of conversion, as well as the sums we find Ms. Whaley must return to the succession. We hereby amend the trial court’s judgment to reflect our finding.

COSTS

In her final assignment of error, Ms. Whaley claims that the trial court erred in assessing' all costs against her. She argues that while the trial court found in favor of Mrs. Farrar as to sums of money removed after Ms. Thompson’s death, the trial court rejected her claims regarding any pre-death donations.

Louisiana Code of Civil Procedure 1920 provides that costs shall be paid by the party cast and the trial court may render judgment for costs as it sees equitable. The discretion of the trial court to assess court costs is vast and is not subject to reversal unless there is an abuse of discretion. Renfro v. Burlington N. Santa Fe Ry. Co., 15-372 (La.App. 3 Cir. 5/11/16), 193 So.3d 1192.

12o¡5ince we affirm the decision of the trial court and also find that the trial court erred in finding that the cash donations Ms. Whaley received prior to Ms. Thompson’s death were valid donations inter vi-vos, we find no error in the trial court’s assessment of all costs to Ms. Whaley.

For the reasons set forth in this opinion, we reverse the judgment of the trial court which found certain cash donations to Ms. Whaley during Ms. Thompson’s lifetime were valid donations inter vivos. We specifically find that the following cash donations were not valid donations vivos and Ms. Whaley is liable to the Succession of Joyce Thompson in these amounts, from the date of conversion: (1) May 28, 2013, in the amount of $3,850.00; (2) June 25, 2013, in the amount of $5,665.66; (3) July 8, 2013, in the amount of $1,872.00; (4) August 7, 2013 in the amount of $5,000.00; (5) August 14, 2013, in the amount of $42,005.90; and (6) August 30, 2013, in the amount of $2,760.00. We affirm the trial court’s judgment finding that the donation of the automobile was not a valid donation inter vivos, but amend that judgment to find that interest should run from the date of conversion, September 5, 2013, when Ms. Thompson died. We also affirm the trial court’s judgment that the transfer of the U.S. Series EE bonds to Ms. Whaley were not valid donations inter vivos and find that interest should run from the date of conversion, September 6, 2013. Costs of this appeal are assessed to Linda Whaley.

REVERSED IN PART; AFFIRMED IN PART; AMENDED IN PART; AND RENDERED.