author: PITMAN, J.

text:
    Tim BARFIELD, Secretary, Department of Revenue, State of Louisiana, Plaintiff-Appellee v. DIAMOND CONSTRUCTION INCORPORATED, Defendant-Appellant
    No. 51,291-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered April 5, 2017
    ROBERT E. SHADOIN, Counsel for Appellant
    KEOGH, COX & WILSON, LTD., By: Christopher K. Jones, Virginia J. McLin, Brent J. Cobb, DEPT. OF REVENUE, STATE OF LOUISIANA By: Antonio C. Ferachi, Counsel for Appellee
    Before LOLLEY, PITMAN, and GARRETT, JJ.
   PITMAN, J.

| T Defendant Diamond Construction, Incorporated (“DCI”), appeals a judgment of the trial court granting a motion for summary judgment filed by Tim Barfield, former Secretary of the Louisiana Department of Revenue (“the State”), which found that DCI was liable to the State for past due sales and use taxes for the taxable period of January 2009 through December 2011 (“the taxable period”), plus applicable penalties, interest and attorney fees. For the following reasons, we affirm the judgment of the trial court.

FACTS

A petition for collection of taxes was filed by the State against DCI alleging that it had transacted business in Louisiana, earned income attributable to Louisiana and subjected itself to Louisiana tax law. The State alleged that, during the taxable period, DCI was required to collect and remit to it Louisiana sales and use taxes. The State conducted a sales and use tax examination and audit for the taxable period and found that DCI was a construction business that performed various services and sold equipment, which resulted in taxable transactions, including, but not limited to, welding, fabrication, repairs, rentals, gate guards and hauling. DCI was not registered for Louisiana general sales tax during the taxable period.

The State alleged that there were taxable sales for which DCI failed to charge Louisiana state sales tax and that it had failed to provide any information demonstrating that the additional sales or the customer were exempt from the imposition of sales tax. These taxes were calculated to be $364,045.59. The State further alleged that, while DCI did charge some sales taxes to customers, it failed to remit those taxes. It calculated that claim to be in the amount of $9,773.77, plus interest and penalties. It | ^claimed that the facts alleged were prima facie true and constituted a prima facie case and that the burden of proof to establish anything to the contrary rested on DCI in accordance with La. R.S. 13:5034 et seq. The total of these taxes is $373,819.26.

The State also alleged that it had correctly computed the tax, penalty and interest due from DCI in accordance with the statutes and regulations, and the audit revealed that sales tax was due and owing. It claimed the total amount due was $524,786.47, which included sales tax in the amount of $373,819.26, interest calculated to December 31, 2013, in the amount of $78,726.27, and a penalty amount of $72,240.84.

DCI filed a general denial to all of the allegations and only responded to paragraph 16 of the State’s petition, which alleged that it had issued a notice of proposed tax due to DCI on June 28, 2013. DCI’s response to that allegation was that it had forwarded the information to its accountant, Marty Estep, who was to review the documents, gather information and report his findings to DCI; however, Mr. Estep never complied with the request.

On April 25, 2015, the State filed a motion for summary judgment, arguing there were no genuine issues of material fact remaining for trial since DCI was unable to carry its burden of disproving the allegations in its petition for collection of taxes, which were treated as prima facie true under La. R.S. 13:5034 et seq. It claimed that DCI, in its answer and discovery responses, had admitted all material facts required for a judgment to be rendered in the State’s favor, and it attached its interrogatories, requests for production and DCI’s responses. It also attached its request for admission of fact; the second set of requests for admission of fact; the affidavit of |sKenneth Foster, revenue agent for the State, who performed the audit; and several other attachments.

DCI filed a memorandum in opposition to the motion for summary judgment and claimed that genuine issues of material fact remained which made summary judgment inappropriate. The memorandum indicated that it filed affidavits from two of its largest customers, La-Tex Pump and Transportation (by owner Thomas Smith) and Nabors Industries, Ltd. (by drilling superintendent Michael Olivo), which provided sworn testimony that DCI performed services for each of them during the years 2009, 2010 and 2011 and that a portion of that work was performed in Texas. DCI also filed affidavits of its president, Robert Haynes, and financial advis- or, Don G. McCullough, who was specifically contracted to work on the case.

Both the Haynes and McCullough affidavits assert that a portion of the taxes sought by the State were improper because the services being taxed were 1) performed outside of Louisiana’s taxable jurisdiction; 2) the services were outside of the scope of Louisiana’s sales and use tax; 3) many invoices subject to the audit were sent to customers outside of Louisiana; 4) a quality investigation thereof would undoubtedly show that a large portion of those invoices were requesting payment for services performed out-of-state; and 5) such proof could be made available through the testimony of customers to whom services and materials were provided and through officers of DCI.

The opposition memorandum also listed statements of disputed material facts, including that Mr. Foster disregarded and ignored his personal knowledge that some of the companies doing business with DCI accrued their taxes, failed to distinguish between exempt and non-exempt companies and failed to exclude out-of-state transactions. DCI claimed that, |4as a result of these failures, Mr. Foster did not establish reasonable controls on the audit and that the audit findings contained in the notice of proposed taxes due are inaccurate and incorrect due to the State’s failure to distinguish between in-state and out-of-state transactions.

DCI contended that the affidavit of its financial consultant avers that 48 percent of all transactions were for materials and services performed outside of Louisiana, making those transactions exempt from sales and use tax. It also contended that, since those figures which detail the principal amount of taxes due are in dispute, the interest and penalty calculations, which are based on the principal amount, are also in dispute. As a result of all these disputed facts, it claimed that the State is not entitled to summary judgment.

The trial court sent the attorneys a letter on October 19, 2015, indicating that it had received the memorandum in opposition to the motion for summary judgment and allowed the State to file a reply brief; however, the letter also stated that, in the interest of judicial economy, it would not take the matter under advisement, but, instead, would rule on the record in open court on November 24, 2015. It allowed counsel of record to be present, but stated it was unnecessary that they attend and that no additional argument would be accepted.

The State did file a reply brief and called DCI’s affidavits self-serving, conclu-sory and irrelevant unsupported statements concerning out-of-state sales in tax years not at issue in the matter. It argued that DCI failed to provide any evidence of the sales, their amounts, the dates they took place or that any sales and use taxes were paid in other states. It claimed that DCI failed to register or pay any sales and use taxes in the taxable period at issue. | Jt argued that the affidavits submitted by DCI were not adequate to meet its burden of proof, which had shifted to it under La. C.C.P. art. 967, and that, further, because DCI failed to keep records during the taxable period, it would be unable to meet its burden of disproving the State’s audit findings. It stated that it is the burden of the taxpayer to maintain sufficient records to demonstrate that taxable transactions are not subject to Louisiana sales and use tax. Therefore, because DCI did not maintain sufficient records, the State was required by law to make an estimate of the transactions subject to Louisiana sales and use taxes and that estimate shall be considered prima facie true. The burden to the contrary rests upon the taxpayer.

On November 24, 2015, the trial court reviewed the evidence and found that the affidavits prepared by DCI’s customers, while sworn, failed to specifically address the transactions that were alleged to have occurred outside Louisiana. It also found that, because the State’s allegations are considered prima facie true, the burden shifted to DCI to prove, by a preponderance of the evidence, that the taxes alleged were not owed. Further, while finding that DCI had not met its burden of proof, it granted DCI an additional 30 days to amend the affidavits to address the specific transactions and show proof of the taxes imposed or paid in Texas, stating that, if DCI failed to amend to show the specific transactions or show proof that the taxes were imposed and collected by Texas, it would grant the motion for summary judgment.

DCI filed supplemental affidavits and attached some evidence, i.e., spreadsheets or notations that purported to concern specific jobs on certain dates on various wells in Texas and a computer printout showing the total of the invoices. However, it failed to attach any documentation proving that | (¡taxes had been paid on the specific transactions it was referencing or that they had occurred outside Louisiana.

On January 5, 2016, the trial court gave oral reasons for judgment in open court and stated that DCI had several years to provide specific information as to the services it provided, the revenues it received and the taxes that were paid in other states for which they would be given a credit. It noted that DCI’s complaint that it had not had sufficient time to do so was without merit. It stated that DCI should have maintained better records and that there was not sufficient proof to show that the work was performed and the monies earned outside Louisiana. For these reasons, it found that DCI failed to meet its burden of proof and judgment was rendered in the State’s favor.

The trial court issued a written judgment stating that, after having considered the pleadings, the attachments and the arguments of counsel, for reasons orally assigned, it granted the State’s motion for summary judgment and found that DCI was liable to the State for past due sales and use taxes in the amount $373,819.26 arising from the taxable period of January 2009 through December 2011; $124,403.83 in interest accrued as ’ of September 29, 2015, as provided in La. R.S. 47:1601; penalties totaling $72,240.84 due pursuant to La. R.S. 47:1602; attorney fees in the amount of ten percent (10%) of the taxes, penalties and interest awarded as provided in La. R.S. 47:1512; and post-judgment interest at the rate provided in La. R.S. 47:1601.

DCI appeals the trial court’s judgment granting the motion for summary judgment.

^DISCUSSION

DCI argues that all of the issues it raised in response to the motion for summary judgment remain and that the affidavits it presented, along with supporting documents, show that genuine issues of material fact exist concerning the imposition of taxes not due, the amount of taxes actually due and the calculation of penalties and interest. In particular, DCI argues that its affidavit by Robert Haynes shows that, during the taxable period, the employees in charge of accounts receivable and bookkeeping were no longer employed by the company, which put it at a severe disadvantage of trying to locate and provide the court with evidence of nontaxable transactions. Nevertheless, it claims that it did provide sample invoices created in the normal course and scope of business that show a total of $200,112 in transactions that were performed or conducted out-of-state and not subject to Louisiana sales and use tax law.

DCI also argues that the affidavit of Don McCullough shows that he was contracted by DCI for the purpose of working on the State’s audit. He had worked ten years for the Recovery Review Group out of Baton Rouge and was very familiar with the audit procedure. He allegedly discovered that certain out-of-state transactions were erroneously included in the assessment and, by his calculations, approximately 47.96 percent of out-of-state transactions, by law, should not have been considered for the assessment of taxes by the State. Attached to his affidavit was a letter from Justin St. Julian of E.O.G. Resources (“EOG”) that was written in response to a sales and use tax question concerning an attached list of invoices from DCI to EOG. St. Julian’s letter stated that EOG had been audited by the Louisiana Department of Revenue for the period January 1, 2006, through | ^December 31, 2009, and that EOG accrued, reported and paid use tax on invoice numbers 14721, 15201 and 16541. Further, the letter stated that invoice numbers 14663, 16820 and 16821 “all reference flow lines. EOG has taken the position that flow lines are buried below ground and thus the services are performed to immovable property. This position has been won under audit.” The letter also stated that invoice number 144477 is a nontaxable hauling/transportation invoice. He calculated and declared in his affidavit that the maximum possible amount of taxes owed the State is no more than $147,596.26.

DCI points out that the affidavits of Thomas Smith and Michael Olivo both state that DCI was performing work outside Louisiana, in Texas, during the taxable period. It argues that the State is attempting to collect taxes on these monies already paid on invoices to other companies. Based on its affidavits and supporting documents, DCI contends that summary judgment is not appropriate in this case.

DCI states that it is aware the law requires the taxpayer to maintain sufficient records to demonstrate that taxable transactions are not subject to Louisiana sales and use tax, but argues that the State took the position that it was then required, by La. R.S. 47:309(A), to make an estimate of the amount of transactions subject to sales and use taxes which should then be considered prima facie true. It claims that a reading of that portion of the statute does not provide or authorize any estimate, nor does the word “estimate” appear in the law. Since the State’s ease relies on estimates, not actual numbers, it argues that the estimate should not be deemed prima facie true and that it should be given the benefit of the doubt, especially in circumstances concerning motions for summary judgment.

IflDCI contends that the affidavits and supporting invoices show that genuine issues of material fact remain and that summary judgment is not appropriate in this case. In support, it quotes the trial court’s reasons for judgment as follows (with emphasis added):

I understand that there is a lot of shifting around of employees and services. And companies open and close all the time and that it’s a very fluid business for not just its product but its companies; that Diamond Construction, Inc. should have done more to maintain records when you’re dealing with the kind of dollars that these companies deal with. Otherwise, there is no proof-there’s not, I should say, there’s not sufficient proof to show that these monies were or the work was performed out-of-state. The monies were received by Diamond Construction, Inc., and the taxes were paid either by the state of Texas by either income use or otherwise. And in so doing I believe that several of those jobs were done outside of the state of Louisiana, but there’s no proof that there were taxes paid that is required under the statute in order for Diamond Construction, Inc. to get credit for the taxes off of those revenues that were done outside of the state of Louisiana. Therefore, Diamond Construction, Inc., has failed to meet its burden to prove by preponderance of the evidence that it does not owe the taxes that are alleged to have been owed as a result of the audit from the Department-Louisiana Department of Revenue.

DCI argues that, even though the trial court found that there were jobs performed outside Louisiana, it also found that DCI had failed to provide the proof by a preponderance of the evidence that it did not owe the taxes; and, for that reason, it granted the State’s motion. DCI asserts that the trial court should not have granted the summary judgment since it expressed doubts regarding the validity of the evidence upon which the State relied and, instead, should have given DCI the right to prove its case at a trial on the merits.

The State argues that the trial court correctly granted its motion for summary judgment since it was DCI’s burden of proof to the contrary under La. R.S. 13:5084 and La. R.S. 47:307 and 309. It points out that the statute Incited by DCI regarding the requirement that it estimate the taxes due actually does contain those specific words and that the assessment is deemed prima facie true. The burden of proof shifted to DCI, but it submitted only conclusory affidavits and unverified attachments which cannot be used to satisfy its burden. It further argues that DCI presented only one argument in opposition to the motion for summary judgment, claiming that it had an unspecified amount of out-of-state sales during the taxable period which was not subject to Louisiana sales and use taxes. It contends that DCI failed to provide any evidence of these sales, their amounts, the dates they took place or that any sales and use taxes were paid in other states. Further, it argues that, to the extent possible, it identified the wells and rigs to which DCI’s work related and did not include transactions in its schedules that it determined were related to wells and rigs located outside Louisiana.

On appeal, a trial court’s ruling on a motion for summary judgment is reviewed pursuant to the de novo standard of review. Jones v. Estate of Santiago, 03-1424 (La. 4/14/04), 870 So.2d 1002; Henderson v. Union Pac. R.R., 41,596 (La. App. 2 Cir. 11/15/06), 942 So.2d 1259. Appellate courts review summary judgments under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Schroeder v. Board of Sup’rs of La. State Univ., 591 So.2d 342 (La. 1991); Lewis v. Coleman, 48,173 (La.App. 2 Cir. 6/26/13), 118 So.3d 492, writ denied, 13-1993 (La. 11/15/13), 125 So.3d 1108; Grant v. Sneed, 49,511 (La.App. 2 Cir. 11/19/14), 155 So.3d 61.

A motion for summary judgment shall be granted if the motion, memorandum and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of h daw. La. C.C.P. art. 966(A)(3). A fact is “material” when its existence or nonexistence may be essential to plaintiffs cause of action under the applicable theory of recovery. Facts are material if they potentially insure or preclude recovery, affect a litigant’s ultimate success or determine the outcome of the legal dispute. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La. 7/5/94), 639 So.2d 730; Estate of Levitz v. Broadway, 37,246 (La.App. 2 Cir. 5/14/03), 847 So.2d 170.

La. C.C.P, art. 966(D)(1) provides the general rule concerning the burden of proof for summary judgment and states in pertinent part as follows:

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

La. R.S. 13:5034, more specifically, concerns the burden of proof in a case by the state against a taxpayer and states as follows:

Whenever the pleadings filed on behalf of the state, or on behalf of any of its officers charged with the duty of collecting any tax, excise, license, interest, penalty or attorney’s fees, shall be accompanied by an affidavit of the officer or of one of his deputies or assistants, or of the counsel or attorney filing the same, that the facts as alleged are true to the best of the affiant’s knowledge or belief, all of the facts alleged in the pleadings shall be accepted as prima facie true and as constituting a prima facie case, and the burden of proof to establish anything to the contrary shall rest wholly on the defendant or opposing party.

Under Louisiana sales tax laws, all sales of tangible personal property are taxable unless a specific exemption or exclusion is applicable, See La. |12R.S. 47:301 and 302. All rentals or lease of tangible personal property are subject to sales and use tax unless a specific exemption of exclusion applies. All sales of specific services, including repairs of tangible personal property are subject to Louisiana sales and use tax unless a specific exemption or exclusion applies. La. R.S. 47:302.

La. R.S. 47:307(A) concerns the collector’s authority to determine the tax in certain cases and states in pertinent part as follows:

A. In the event any dealer fails to make a report and pay the tax as provided in this Chapter or in case the dealer makes a grossly incorrect report or a report that is false or fraudulent, the collector shall make an estimate of the retail sales of such dealer for the taxable period, of the gross proceeds from rentals or leases of tangible personal property by the dealer, or the cost price of all articles of tangible personal property imported by the dealer for use or consumption or distribution or storage to be used or consumed in this state, and of the gross, amounts paid or charged for services taxable; and it shall be the duty of the collector to assess and collect the tax together with any interest and penalty that may have accrued thereon, which assessment shall be considered prima facie correct and the burden to show the contrary shall rest upon the dealer. (Emphasis added.)

La. R.S. 47:309 concerns dealers’ obligation to keep records and states in pertinent part as follows:

A.(l) Every dealer required to make a report and pay any tax under this Chapter shall keep and preserve suitable records of the sales, purchases, or leases taxable under this Chapter, and such other books of accounts as may be necessary to determine the amount of tax due hereunder, and other information as may be required by the secretary; and each dealer shall secure, maintain and keep until the taxes to which they relate have prescribed, a complete record of tangible personal property received, used, sold at retail, distributed, or stored, leased or rented, within this state by the said dealer, together with invoices, bills of lading, and other pertinent records and papers as may be required by the secretary for the reasonable administration of this Chapter, and a complete record of all sales or purchases of services taxable under this Chapter until the taxes to which they relate have prescribed.
_b***
(3) The secretary is authorized to require all dealers who take deductions on their sales tax returns for total sales under the minimum taxable bracket prescribed by him pursuant to R.S. 47:304 to support their deductions by keeping written or printed detailed records of said sales in addition to their usual books and accounts.

All of DCI’s transactions are subject to taxation under La. R.S. 47:302. It was incumbent upon DCI to keep the records necessary for payment of these taxes due during the taxable period. Because the State could not determine from DCI’s records which transactions were taxable, it exercised its authority under La. R.S. 47:307 to audit the company and make an estimate of the amount of taxes along with penalty and interest amounts owed by the taxpayer. After the audit and the assessment by estimate, which is presumed to be prima facie true, the burden of proof shifted to DCI to contradict the prima facie showing made by the State.

We find that no genuine issues of material fact remain and that DCI failed to raise any facts which would potentially ensure or preclude recovery, affect the litigant’s ultimate success or determine the outcome of the legal dispute. DCI was given the opportunity over several years to produce the evidence it needed to rebut the State’s prima facie case, but, because of poor recordkeeping, was unable to do so. Its argument that the State’s auditor failed to distinguish between in-state and out-of-state sales or between exempt and non-exempt customers does not create any genuine issues of material fact because there was not sufficient proof to bolster that assertion.

For the foregoing reasons, we find no error in the judgment of the trial court granting the motion for summary judgment.

^CONCLUSION

The judgment of the trial court granting summary judgment in favor of the Louisiana Department of Revenue, State of Louisiana, and against Diamond Construction, Incorporated, for past due sales and use taxes in the amount of $373,819.26 arising from the taxable period of January 2009 through December 2011; $124,403.83 in interest accrued as of September 29, 2015, as provided in La. R.S. 47:1601; penalties totaling $72,240.84 due pursuant to La. R.S. 47:1602; attorney fees in the amount of ten percent (10%) of the taxes, penalties and interest awarded as provided in La. R.S. 47:1512; and post-judgment interest at the rate provided in La. R.S. 47:1601; is affirmed. Costs of appeal are assessed to Defendant Diamond Construction, Incorporated.

AFFIRMED.


source: Caselaw Access Project

author: GARRETT, J.

license: Public Domain

text:
    Sharon WILLIAMS, Alisha Wagner, Trenisha Thomas o/b/o Minor Children, Derrick Williams, Jr., Danetria Thomas, Na’Derricka Thomas, and Keona Grant o/b/o Minor Child, Dandria Grant o/b/o Deceased, Derrick Williams, Respondents v. LASALLE CORRECTIONAL CENTER L.L.C. d/b/a Richwood Correctional Center and its Unknown Insurer, Applicants
    No. 51,260-CW
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered April 5, 2017.

      PROVOSTY, SADLER & DELAUNAY, By: H. Bradford Calvit, Stephen F. But-terfield, Counsel for Applicants
    DAVIS LAW OFFICE, L.L.C., By: S. P. Davis, Sr., Kharmen Davis, Counsel for Respondents
    Before MOORE, LOLLEY, and GARRETT, JJ.
   GARRETT, J.

h Relatives of an inmate who allegedly died due to lack of medical care originally filed suit in Lincoln Parish against the private companies managing the prison where he was incarcerated. Following an exception of improper venue, the suit was transferred to Ouachita Parish, where the prison was located. The defendants then filed an exception of prescription, which was denied by the trial court. The defendants filed a writ application in this court, which granted it to docket. The writ is now granted and made peremptory. We reverse the trial court judgment, grant the exception of prescription, and dismiss the plaintiffs’ suit.

FACTUAL AND PROCEDURAL BACKGROUND

According to the facts alleged-in this record, Derrick Williams, an inmate at the Richwood Correctional Center, was found unresponsive at that facility on January 23, 2014, and pronounced dead upon his transfer to University Health Conway in Monroe.

On January 23, 2015, the plaintiffs— Williams’ mother and children—filed a petition for damages in Lincoln Parish against the LaSalle Correctional Center, LLC (“LaSalle”), d/b/a Richwood Correctional Center, and its unknown insurer. Their petition asserted that LaSalle was a foreign corporation doing business in Ru-sten, whose agent for service of process was located in Rusten, which is in Lincoln Parish. The plaintiffs alleged that Williams had complained of chest discomfort, headaches, and pain for about one month before his death, but the defendants failed to provide him with |2timely and adequate medical care and treatment. The suit was served on the defendants’ agent for service of process in Lincoln Parish on January 29, 2015. On June 22, 2015, the plaintiffs filed an amended petition in which they deleted LaSalle as a defendant, instead naming Richwood Correctional Center, LLC (“Richwood”), as the defendant and alleging the same address and agent for service of process as in the original petition.

In July 2015, LaSalle and Richwood filed an exception of venue, challenging the filing of the suit in Lincoln Parish. They asserted that, under La. R.S. 15:1184(F), the mandatory venue provision of the Prison Litigation Reform Act (“PLRA”), exclusive venue for the suit was in Ouachita Parish, where Richwood Correctional Facility was located and where all alleged torts occurred. They requested that the suit be dismissed without prejudice or, alternatively, transferred to Ouachita Parish for further proceedings.

In opposition to the venue exception, the plaintiffs made the following argument:

Plaintiffs aver that the deceased, Derrick Williams, was an inmate in Richland Correctional Center on January 23, 2014 at the time of his death. Plaintiffs further aver that Richland Correctional Center is located in Monroe, Louisiana. [Plaintiffs concede] that according to LRS 15:1184, proper venue would be proper in Ouachita Parish where the Richland Correctional Center is located. Plaintiffs further aver that if the court decides that the venue in which the [plaintiffs’] action was filed is in fact improper, the plaintiffs [aver] that their claim should not be dismissed, but in fact transferred to the venue that would be proper in the interest of justice. (Emphasis theirs.)
IsThe plaintiffs aver that [they] did not knowingly file suit in the wrong venue. The plaintiffs further aver that they filed suit based upon the general rules of venue that pertain to all delictual causes of action. The plaintiffs further aver that this cause of action arises as a result of the death of Derrick Williams, and was not an action brought by him due to any injury that was sustained prior to January 23, 2014. Therefore, [plaintiffs aver] that their cause of action should not be dismissed, but in fact transferred to the venue that would be proper in this matter.

The venue exception was taken up at a hearing on October 9, 2015. Following a status conference, the entire record was introduced into evidence. Finding that each side had done an excellent job presenting its position in writing, the trial court dispensed with oral argument by agreement with the parties. The trial court then granted the venue exception and ordered that, in the interest of justice, the case be transferred to Ouachita Parish. The judgment ordering the transfer was signed on November 16, 2015.

Following the suit’s transfer to Ouachita Parish, Richwood filed answers to both the petition and the amended petition in which it generally denied liability. It further alleged that Williams’ death was caused by his “unknown medieal condition,” hypertensive cardiovascular disease, which was an “Act of God,” for which it was not responsible.

On April 1, 2016, Richwood and LaSalle filed a peremptory exception of prescription. They contended that the prescriptive period was not interrupted and the plaintiffs’ claims were prescribed on their face because (1) the plaintiffs filed suit in Lincoln Parish, an improper venue, instead of Ouachita Parish, the exclusive venue under La. R.S. 15:1184; and (2) they failed to serve any defendant with process before the one-year prescriptive period expired, which was fatal to their claims under La. C.C. art. 8462. The |4plaintiffs filed an opposition to the exception in which they contended that the courts in Lincoln Parish and Ouachita Parish had concurrent jurisdiction and venue under La. C.C.P. art. 42 and La. R.S. 15:1184(F). As a result, they maintained that the timely filing of their suit in Lincoln Parish interrupted prescription.

At a hearing on July 27, 2016, the trial court denied the exception. It interpreted the second sentence of La. R.S. 15:1184 to mean that other venues could be proper. Consequently, it found that venue was also proper in Lincoln Parish under La. C.C.P. art. 42. Judgment was signed August 8, 2016. Costs were assessed against the defendants.

Richwood and LaSalle filed an application for a supervisory writ in this court, which was granted to docket.

LAW

The PLRA was enacted by Acts 1997, No. 731, § 1, and became effective on July 9, 1997. The purpose of enacting the PLRA was to provide for civil actions with respect to prison conditions. The definition provision of the PLRA, La. R.S. 15:1181, shows that the legislative intent was to provide for civil actions with respect to prison conditions or effects of officials’ actions on prisoners’ lives, as opposed to matters concerning incarceration vel non. McCoy v. State ex rel. Jones, 39,323 (La. App. 2 Cm. 2/17/05), 901 So.2d 1109, writ denied, 2005-0960 (La. 2/3/06), 922 So.2d 1161; Frederick v. Ieyoub, 1999-0616 (La. App. 1 Cir. 5/12/00), 762 So.2d 144, writ denied, 2000-1811 (La. 4/12/01), 789 So.2d 581.

|KLa. R.S. 15:1181 provides the following relevant definitions:

(2) “Civil action with respect to prison conditions” or “prisoner suit” means any civil proceeding with respect to the conditions of confinement or the effects of actions by government officials on the lives of persons confined in prison, but does not include post conviction relief or habeas corpus proceedings challenging the fact or duration of confinement in prison.
(5) “Prison” means any state or local jail, prison, or other correctional facility that incarcerates or detains juveniles or adults accused of, convicted of, sentenced for, or adjudicated delinquent for violations of criminal law.
(6) “Prisoner” means any person subject to incarceration, detention, or admission to any prison who is accused of, convicted of, sentenced for, or adjudicated delinquent for a violation of criminal law or the terms or conditions of parole, probation, pretrial release, or a diversionary program. Status as a “prisoner” is determined as of the time the cause of action arises. Subsequent events, including post trial judicial action or release from custody, shall not affect such status.

The venue provision found in La. R.S. 15:1184(F) states:

The exclusive venue for delictual actions for injury or damages shall be the parish where the prison is situated to which the prisoner was assigned when the cause of action arose. Upon consent of all parties, the court may transfer the suit to a parish in which venue would otherwise be proper.

The court, on its own motion, may raise an exception of improper venue and transfer a prisoner suit to a court of proper venue or dismiss the suit. See La. R.S. 15:1184(B); Foster v. Louisiana Dep’t of Pub. Safety & Corr., 2012-0358 (La.App. 1 Cir. 11/2/12), 111 So.3d 81. When an action is brought in a court of improper venue, the court may dismiss the action, or in the interest of justice transfer it to a court of proper venue. La. C.C.P. art. 121. See also La. C.C.P. art. 932(B).

In relevant part, La. C.C.P. art. 42, which addresses matters of general venue, states:

The general rules of venue are that an action against:
(2) A domestic corporation, a domestic insurer, or a domestic limited liability company shall be brought in the parish where its registered office is located. The general rules of venue provided in

La. C.C.P. art. 42 are subject to the exceptions otherwise provided by law. La. C.C.P. art. 43.

La. C.C. art. 3462 states, in part: “If action is commenced in an incompetent court, or in an improper venue, prescription is interrupted only as to a defendant served by process within the prescriptive period.”

A transfer pursuant to the grant of an exception of venue does not interrupt prescription. Jinright v. Glass, 2006-888 (La.App. 5 Cir. 2/27/07), 954 So.2d 174, writ denied, 2007-0570 (La. 5/4/07), 956 So.2d 618.

DISCUSSION

The defendants contend that the trial court erred in finding that the plaintiffs interrupted prescription by filing their suit in Lincoln Parish. They maintain that, under the exclusive jurisdiction provision in La. R.S. 15:1184(F), suit had to be filed in Ouachita Parish. Furthermore, since service of process was not made within the one-year prescriptive period, the defendants argue that commencement of the suit in Lincoln Parish did not interrupt prescription, as set forth in La. C.C. art. 3462.

The defendants further assert that the PLRA was designed to provide a comprehensive statutory scheme governing all civil actions pertaining to prison conditions and that its definition of “prison” does not exclude facilities operated by private management companies such as themselves. In that context, they contend that the first sentence of La. R.S. 15:1184(F) establishes an exclusive venue which, under the facts of this case, is Ouachita Parish. They claim that the second sentence has no application to |Rthe instant suit because they never consented to litigating in an improper venue.

The plaintiffs claim that a matter of first impression is presented here: whether a prison run by a private corporation is subject to the limited venue clause of the PLRA or is venue proper under the general venue provisions of La. C.C.P. art. 42. They contend that, since the private management companies that operate the prison where Williams was incarcerated have registered offices in Lincoln Parish, venue in Lincoln Parish was proper under La. C.C.P. art. 42. They argue that the PLRA did not contemplate an action arising from the tortious actions of an LLC which was not an agent or subdivision of the state, parish or city. Consequently, they assert that this action should be subject to the general venue provisions of La. C.C.P. art. 42 governing private corporations. As a result, the plaintiffs maintain Lincoln Parish was a proper venue and filing suit there interrupted prescription.

The plaintiffs also argue that the PLRA does not apply here because they are not challenging “conditions of confinement.” They contend that their complaints center upon the “employment practices and policies” of LaSalle and Richwood that allegedly led to Williams’ death.

In response to the plaintiffs’ argument that the “home base” venue provision of La. C.C.P. art. 42 allowed venue in Lincoln to be proper, the defendants counter that this provision is inapplicable when the legislature has enacted a specific venue statute such as La. R.S. 15:1184(F). They argue that to hold otherwise would render the provisions of La. R.S. 15:1184(F) meaningless.

| -¡Privately operated prisons

At the outset, we must determine whether the PLRA applies to private companies managing prisons under the circumstances presented by this case. Pursuant to the statutory scheme enacted by the legislature, we find that it does.

Pursuant to the Louisiana Corrections Private Management Act, which was enacted in 1989, the Department of Public Safety and Corrections (“DPSC”) and local governmental subdivisions are authorized to enter into contracts with prison contractors to operate facilities. La. R.S. 39:1800.4. These contracts require the contractor to provide medical care for inmates. La. R.S. 39:1800.4(D)(4). A private correctional facility employee has the full authority to perform his duties and responsibilities under law in the same manner and to the same extent as would be authorized as if he were employed by the DPSC in a similar capacity. La. R.S. 15:743.

The PLRA broadly defines “prison” as “any state or local jail, prison, or other correctional facility that incarcerates or detains juveniles or adults accused of, convicted of, sentenced for, or adjudicated delinquent for violations of criminal law.” La. R.S. 15:1181(5).

We find no basis for holding that the PLRA excludes private companies managing prisons. To the contrary, we find that the PLRA’s definition of “prison” is sufficiently broad to include such privately operated facilities. Also, given the fact that the PLRA was enacted approximately eight years after the Louisiana Corrections Private Management Act, it is unlikely that the PLRA’s application to privately run prisons was not contemplated by the legislature. Furthermore, we find that employees of these private companies, like DPSC employees, may be considered | «“government officials,” and that the effects of their actions on the lives of persons confined in prison may be adjudicated in a PLRA “prisoner suit.” La. R.S. 15:1181(2).

Exclusive venue

In support of their position that the PLRA venue provision is inapplicable to their suit, the plaintiffs cite Poullard v. Pittman, 39,549 (La.App. 2 Cir. 4/13/05), 900 So.2d 310, writ denied, 2005-1507 (La. 1/13/06), 920 So.2d 237; Frederick v. Ieyoub, supra; and McAlister v. Oilfield Instrumentation U.S.A., Inc., 2009-1472 (La. App. 3 Cir. 5/5/10), 2010 WL 1780298. However, these cases are distinguishable because none of them pertain to “prison conditions” or “conditions of confinement or the effects of actions by government officials on the lives of persons confined in prison.”

In the Poullard case, an inmate incarcerated at the David Wade Correctional Center in Claiborne Parish alleged medical malpractice occurred when he was treated at LSU Medical Center~E.A. Conway Hospital in Ouachita Parish. After his suit against Conway and his doctor was filed in Ouachita Parish, the trial court granted the defendants’ exception of improper venue pursuant to La. R.S. 15:1184 and transferred the case to Claiborne Parish. On appeal, this court reversed and remanded the case to Ouachita Parish. It held that La. R.S. 15:1184 had to be read, not in isolation, but in context with the PLRA. The court concluded that the exclusive venue provision was intended “only to address those delictual actions concerning conditions of confinement or the effects of actions by governmental officials on the lives of persons confined in prison.” The court found that “[n]either the hospital nor the doctor are governmental officials whose actions affect the lives of persons confined in prison,” and that an |flordinary medical malpractice action for treatment received at the hospital was not “an action with respect to the conditions of confinement in prison.”

In the Frederick case, an inmate sued to challenge the constitutionality of a statute requiring parole supervision during good time release. Pursuant to the screening provisions of the PLRA, his petition was dismissed on the basis that it was frivolous and failed to state a cognizable claim. It was also deemed a “strike” under the “three strikes” provision of the PLRA, La. R.S. 15:1187. The appellate court reversed the portion of the judgment assessing a strike against the inmate. It concluded that the PLRA did not apply because the suit did not involve prison conditions or officials’ actions affecting the lives of those confined in prison.

In McAlister, supra, an inmate filed an in forma pauperis petition, alleging that he was not paid initially and then was underpaid by a private company for work performed while he was incarcerated in a correctional facility. The trial court dismissed the suit pursuant to La. R.S. 15:1186(0) of the PLRA. The appellate court reversed the dismissal because the PLRA did not apply to a lawsuit against a private company for wages.

In support of their contention that the exclusive venue provision applies in the instant case and that their subsequent exception of prescription should be granted, the defendants rely upon Allen v. State, Dep’t of Pub. Safety & Corr., 2012-430 (La.App. 3 Cir. 11/7/12), 107 So.3d 106, writ not cons., 2013-0107 (La. 3/1/13), 108 So.3d 784. We agree with their argument and find this case instructive. Several inmates at the Avoyelles Correction Center sued after the prison van in which they were passengers and which was driven by a DPSC employee was involved in an auto accident. On the last day before the prescriptive period expired, the inmates | infiled suit in East Baton Rouge Parish against the DPSC and its employee. The defendants were served approximately two weeks later. The trial court granted their subsequent exception of improper venue on the basis of La. R.S. 15:1184(F) and transferred the case to Avoyelles Parish, where the prison was located. Following the transfer, the defendants filed an exception of prescription, which was granted. The appellate court affirmed. It found that, since the inmates alleged that the defendants failed to provide them with proper medical care, their claims related to their “conditions of confinement” and the transfer of venue under the PLRA was appropriate. The appellate court further concluded that, pursuant to La. C.C. art. 3462, the filing of suit in an improper venue failed to interrupt prescription because the defendants were not served within the prescriptive period.

The plaintiffs attempt to distinguish the Allen case on the basis that it involved a DPSC employee, whereas the instant case is against private companies. However, as previously noted, we find no basis for making such a distinction.

The exclusive venue provision of La. R.S. 15:1184(F) for delictual actions for injury or damages is intended only to address those delictual actions concerning conditions of confinement or the effects of actions by governmental officials on the lives of persons confined in prison. Poullard, supra. Complaints of lack of medical care within their prison relate to a prisoner’s “conditions of confinement” under La. R.S. 15:1181(2), and must be brought, pursuant to La. R.S. 15:1184(F), in the parish of the prison to which the inmate was assigned when the cause of action arose. See Allen, supra; Zeitoun v. City of New Orleans, 2011-0479 (La.App. 4 Cir. 12/7/11), 81 So.3d 66, writ denied, 2012-0426 (La. 4/9/12), 85 So.3d 704.

| uSee also Kent v. State Through Dep’t of Pub. Safety & Corr., 2014-1010 (La.App. 1 Cir. 9/23/14), 2014 WL 12569755, writ denied, 2014-2221 (La. 1/9/15), 157 So.3d 1107, wherein the appellate court reversed the trial court’s denial of an exception of improper venue in a similar case. In so ruling, the court stated: “The plaintiffs survival and wrongful death claims constitute ‘civil actions with respect to prison conditions,’ under La. R.S. 15:1181(2) of the Prison Litigation Reform Act, and therefore, the exclusive venue provision under the Act, La. R.S. [15:1184(F) ], governs.”

We reject the plaintiffs’ attempt to characterize them suit as concerning “employment practices and policies” of the private companies operating the prison. It is readily apparent that their suit clearly involves prison conditions, i.e., an alleged failure to provide an inmate with medical care. Their suit seeks monetary damages based on both survival and wrongful death actions. Consequently, their suit falls under the provisions 112of the PLRA, including the one establishing exclusive venue in the parish where the prison is located.

Based on the foregoing, we find that the trial court erred in reasoning that venue was proper in Lincoln Parish and that the filing of suit there interrupted prescription. Accordingly, we reverse the trial court judgment denying the defendants’ exception of prescription.

CONCLUSION

The writ is granted and made peremptory. We reverse the trial court judgment denying the defendants’ exception of prescription, grant the exception, and dismiss the plaintiffs’ suit.

Costs of this appeal are assessed to the plaintiffs.

WRIT GRANTED AND MADE PEREMPTORY. JUDGMENT REVERSED, EXCEPTION OF PRESCRIPTION GRANTED, AND SUIT DISMISSED.

      . The suit was fax filed on Friday, January 23, 2015, but the clerk of court entered a filing date of January 26, 2015, the following Monday. The trial court granted the plaintiffs’ petition of mandamus and ordered the clerk of court to correct the filing date to show that the petition was timely filed on Januaty 23, 2015.

      . The defendants also filed exceptions of no right or cause of action seeking dismissal of the claims of Williams' mother because his children's claims had priority to her exclusion. They further asserted an exception of vagueness and ambiguity to strike language in the petition making a non-exclusive allegation of fault against them. In their opposition to the exceptions, the plaintiffs conceded that Williams’ mother was not a proper party. The trial court in Lincoln Parish declined to hear the exceptions after finding venue there was improper. The record does not indicate that any ruling has been made on these exceptions in Ouachita Parish.

      . During the hearing, the trial court took judicial notice of Richwood Correctional Center's location in Ouachita Parish.

      . The original writ document correctly cites the exclusive venue provision as La. R.S. 15:1184(F); however, the Westlaw version of this case incorrectly cites it as "La. R.S, 15:1134(F).”

      . Their own allegations demonstrated as much. In relevant part, their amended petition stated:
      5.
      Petitioners aver that defendant, RICH-WOOD CORRECTIONAL CENTER negligently failed to provide the deceased, DERRICK WILLIAMS with proper care and treatment for his complaints of chest discomfort, headaches, and pain,
      6.
      Petitioners avers [sic] that defendant, RICHWOOD CORRECTIONAL CENTER, LLC and their employees and agents are jointly and solidarity liable for the death of the deceased, DERRICK WILLIAMS in the following none exclusive [sic] manner:
      a. failure to render aid in a timely manner
      b. failure to refer him for proper care and treatment for his complaints of chest discomfort, headaches, and pain;
      c. failure to provide timely and adequate medical care and treatment to Derrick Williams;
      d. failure to take Derrick Williams to the doctor and/or hospital in a timely manner[,]

      .The allegations of their petition and amended petition sound in both these tort actions. Also, the plaintiffs admitted that they were pursuing both survival and wrongful death actions in the portion of their opposition to the defendants' exceptions that addressed the exceptions of no cause or right of action.


text:
    Mack Buddy MAXWELL, Jr., Plaintiff-Appellant v. Brooke Pauline Bennett MAXWELL, Defendant-Appellee
    No. 51,335-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered April 5, 2017.
    Rehearing Denied May 11, 2017

      A. RICHARD SNELL, Counsel for Appellant
    SEAN D. MILLER, Counsel for Appel-lee
    Before WILLIAMS, MOORE, and PITMAN, JJ.
   PITMAN, J.

11 Plaintiff-Appellant Mack Buddy Maxwell, Jr., appeals the trial court’s judgment of partition in favor of Defendant-Appellee Brooke Pauline Bennett Maxwell. Por the following reasons, we affirm.

FACTS

On July 21, 2011, Mr. Maxwell filed a petition for divorce pursuant to La. C.C. Arts. 102 and 103.1(2). He stated that he and Mrs. Maxwell married on October 14, 2001, and separated on June 14, 2011. On March 16, 2012, the trial court filed a judgment retroactively terminating the Maxwells’ community of acquets and gains to July 21, 2011. On May 10, 2012, a judgment of divorce was granted. On February 27, 2013, Mrs. Maxwell filed a petition to partition community property.

A trial on the partition began on July 20, 2015. The parties introduced into evidence a joint detailed descriptive list. They stipulated as to the value of the six pieces of immovable property and established the value and ownership of movables.

The trial continued on October 28, 2015. The parties discussed the Ouachita Independent Bank Money Market Checking Account # 3550 (the “OIB Account”). Mr. Maxwell argued that this account, which contained $15,020.29, was his separate property. He testified that he opened the OIB Account in his name in September 2010 with a $10,000 deposit. He stated that the deposit came from a retirement account he closed, and he noted that he had the retirement account prior to his marriage. He explained that he | ¿first deposited these funds into a joint account because he did not have a separate account and then he wrote a check from the joint account to open the OIB Account. Mrs. Maxwell testified that Mr. Maxwell had the retirement account prior to their marriage and that it was “his separate stuff.” The trial court noted that the funds to open the OIB Account were channeled through a joint account, which is akin to commingling. It stated that Mr. Maxwell did not overcome the presumption that property in the possession of a spouse during the community property regime is community property and determined that the OIB Account is community property.

The parties then discussed the mortgage debt on their home located at 1919 Landau Lane in Bossier City (the “Landau property”). Mr. Maxwell testified that he purchased the Landau property in July 2001, several months before his October 2001 marriage to Mrs. Maxwell. He stated that the original mortgage (i.e., the “Chase Mortgage”) was for approximately $139,000, and then he refinanced it in 2002. He stated that, after 2002, Mrs. Maxwell never assumed the debt with him on the Chase Mortgage, noting that she did not refinance the mortgage with him, that she was not added as a borrower on the mortgage and that she “had to sign off on it as saying it was . separate property.” He further stated that he was not asking the trial court to declare the Chase Mortgage a community debt, but noted that Mrs. Maxwell is on a second mortgage on the Landau property.

Mr. Maxwell further testified that, prior to his marriage to Mrs.-Maxwell, he was in the mortgage business and also purchased and sold real estate. He stated that he used a line of credit with Regions Bank (the “Regions Debt”) to purchase real estate and continued to use his separate line of credit after the marriage because Mrs. Maxwell had poor credit and Rcould not qualify for any type of mortgage. He explained that he purchased properties on his line of credit in his name and then refinanced them and added Mrs. Maxwell to the title so she was a joint owner, but he was responsible for the mortgage. He stated that they did this for three or four property purchases until Mrs. Maxwell’s credit improved. In December 2006, they opened a joint line of credit with OIB to purchase homes (the “OIB Line”), and the Landau property was collateralized on the OIB Line. He noted that Mrs. Maxwell worked in the mortgage and real estate business with him. They purchased 13 properties during the marriage, and the income from the sales of the properties was put into a joint Certificate of Deposit (the “CD”). In September 2004, Mr. Maxwell entered into an agreement with Mrs. Maxwell to donate to her a one-half interest in the equity of the Landau property. He testified that, in the summer of 2009, he developed liver failure and was not expected to survive. He noted that Mrs. Maxwell drew on the OIB Line to keep their businesses going. During this time, he donated additional property to Mrs. Maxwell (the “2009 donation”). He contended that this asset donation was subject to the debts associated with the property and read the following from the 2009 donation, which stated: “The property donated herein shall be subject to any debt on any outstanding mortgages and liens.” He noted that some of the property was used as collateral on debts, including the Regions Debt. He stated that Mrs. Maxwell was fully aware of the debt that existed because she worked with him in the real estate business. He testified that he received a liver transplant, and then Mrs. Maxwell donated back to him a one-half interest in some properties and a full interest in other properties. He further testified that, on January 3, 2011, he made a draw on the OIB Line for $209,POOL which he used to pay off his Regions Debt. He noted that, prior to this transfer, he and Mrs. Maxwell owed approximately $23,000 on the OIB Line. The next month OIB redeemed the CD to pay down the OIB Line balance.

The parties then discussed the expenses associated with rental income. Counsel for Mr. Maxwell noted that they had previously established the amount of the income, but had not yet presented evidence as to the expenses associated with the rental property. Counsel for Mrs. Maxwell contended that such evidence was not timely produced and that it consisted of handwritten ledgers, but no receipts for expenses or proof of payments. The trial court allowed Mr. Maxwell to submit additional documents (“Exhibit M-13”), and Mrs. Maxwell objected.

The parties also discussed Mr. Maxwell’s premarital debt and Mrs. Maxwell’s corresponding reimbursement claim. Mrs. Maxwell’s counsel contended that this reimbursement claim hinged on the trial court’s ruling regarding the classification of the Chase Mortgage. Counsel noted that, if it is classified as Mr. Maxwell’s separate debt, Mrs. Maxwell may be precluded from receiving the reimbursement claim because she lived in the Landau property with Mr. Maxwell. Counsel for Mr. Maxwell argued that, although the debt began as a separate debt, it evolved into a community debt.

On December 11, 2015, the trial court filed its ruling. It admitted into evidence Exhibit M-13 for the purpose of determining the credit owed to Mr. Maxwell for the expenses used for the preservation of community assets. It found that the Chase Mortgage is a separate debt and obligation of Mr. Maxwell. Regarding the OIB Line, it found that the evidence demonstrated the existence of a premarital debt and post-marital separate Ldebt incurred by Mr. Maxwell and that certain funds were utilized to satisfy these obligations. Accordingly, it awarded reimbursement to Mrs. Maxwell for her half of the community funds utilized to satisfy the separate obligations of Mr. Maxwell.

On March 17, 2016, arguments were held for the purpose of allocating six pieces of immovable property and one mortgage debt so that equalization and reimbursement could be calculated and a written judgment prepared. On April 20, 2016, the trial court filed a ruling in which it allocated the six pieces of immovable property—assigning three to each party. It also determined the equalization payment owed and the reimbursements owed.

On June 16, 2016, the trial court filed a judgment to partition community property. Relevant to this appeal, the judgment stated that Exhibit M-13 was admitted as to give credit to Mr. Maxwell for payment of tax, insurance and repairs directly related to a community asset; that the Chase Mortgage was the separate debt of Mr. Maxwell; and that the OIB Line was the separate debt of Mr. Maxwell.

On June 16, 2016, Mr. Maxwell filed a motion for new trial. Following a hearing, the trial court denied the motion on July 21, 2016.

Mr. Maxwell appeals the judgment of the trial court.

DISCUSSION

A trial court has much discretion in valuing and allocating assets and liabilities in community property partitions and must consider the source and nature of each asset or liability, the financial situation of the other spouse and any other relevant circumstances. Dupree v. Dupree, 41,572 (La.App. 2 Cir. 12/20/06), 948 So.2d 254. A trial court’s factual findings and credibility determinations made in the course of valuing and allocating! B assets and liabilities in the partition of community property may not be set aside absent manifest error. Clemons v. Clemons, 42,129 (La.App. 2 Cir. 5/9/07), 960 So.2d 1068, cm reh’g (7/11/07), writ denied, 07-1652 (La. 10/26/07), 966 So.2d 583.

Assumption of the Home Mortgage Indebtedness

Mr. Maxwell argues that the mortgage indebtedness (i.e., the Chase Mortgage and the OIB Line) is a community obligation, not his separate obligation. He contends that the trial court erred when it determined that the 2009 donation transferred an ownership interest in the Landau property to Mrs. Maxwell, but did not cause her to assume the mortgage indebtedness associated therewith. He states that, if Mrs. Maxwell claims an ownership in the Landau property, then she is also bound to take responsibility for the Chase Mortgage. He further argues that the history of the debt proves that it was jointly owned. He states that the use of the OIB Line was clearly for the common interest of the spouses and was, therefore, a community obligation.

Mrs. Maxwell argues that at no time did she sign any documentation binding herself as an obligor to any mortgage secured by the Landau property. She contends that Mr. Maxwell admitted in his testimony that the Landau mortgage debt was his separate debt. She states that the evidence presented at trial demonstrates the separateness of Mr. Maxwell’s debt and does not support his claim that the transfer of his Regions Debt to their OIB Line benefited her.

An obligation incurred by a spouse may be either a community obligation or a separate obligation. La. C.C. Art. 2359. An obligation incurred by a spouse during the existence of a community property regime for the common interest of the spouses or for the interest of the other spousej 7 is a community obligation. La. C.C. Art. 2360. Except as provided in La. C.C. Art. 2363, all obligations incurred by a spouse during the existence of a community property regime are presumed to be community obligations. La. C.C. Art. 2361, La. C.C. Art. 2363 states:

A separate obligation of a spouse is one incurred by that spouse prior to the establishment of a community property regime, or one incurred during the existence of a community property regime though not for the common interest of the spouses or for the interest of the other spouse.
An obligation resulting from an intentional wrong or an obligation incurred for the separate property of a spouse is likewise a separate obligation to the extent that it does not benefit both spouses, the family, or the other spouse.

Although Mr. Maxwell emphasizes that the 2009 donation provides that “The property donated herein shall be subject to any debt on any outstanding mortgages and liens,” this clause does not cause Mrs. Maxwell to assume the mortgage. Mrs. Maxwell did not explicitly agree to assume a mortgage or lien on the Landau property. As donee, she gained the property subject to,a mortgage, not the mortgage itself. Therefore, the 2009 donation did not cause Mr. Maxwell’s separate mortgage debt to become a community obligation.

Mr. Maxwell purchased the Landau property and acquired the Chase Mortgage on the Landau property prior to his marriage with Mrs. Maxwell. At trial, when asked if Mrs. Maxwell ever assumed the Chase Mortgage debt with him, he testified that she did not. He explained that he was not asking the trial court to declare the Chase Mortgage a community obligation and admitted that Mrs. Maxwell did not owe this debt. The Chase Mortgage is clearly Mr. Maxwell’s separate obligation.

The evidence presented regarding the history of the OIB Line does not demonstrate that it was for the common interest of the spouses. On|s November 11, 2010, the Maxwells had a community debt on the OIB Line of $22,961.50. On January 3, 2011, Mr. Maxwell transferred his separate Regions Debt of $209,372.88 to the OIB Line. On February 16, 2011, OIB required Mr. Maxwell to cash out the CD and pay it toward the OIB Line balance. The CD was valued at $126,121.69; $22,961.50 was used to pay the community debt and $103,160.19 was used to pay down Mr. Maxwell’s separate debt. Therefore, the debt remaining on the OIB Line was Mr. Maxwell’s separate obligation.

The trial court was not manifestly erroneous when it determined that the mortgage debt is Mr. Maxwell’s separate obligation. Accordingly, Mr. Maxwell’s argument lacks merit.

Reimbursement to Mrs. Maxwell

Mr. Maxwell argues that the trial court erred in finding that Mrs. Maxwell is due reimbursement in the amount of $51,000. He contends that the mortgage debts are jointly owned community debts and, therefore, no reimbursement is due.

Mrs. Maxwell argues that she is entitled to be reimbursed in the amount of $51,800.95, i.e., one-half of the amount used to pay Mr. Maxwell’s separate debt.

A spouse may have a claim against the other spouse for reimbursement. La. C.C. Art. 2358. If community property has been used during the existence of the community property regime or former community property has been used thereafter to satisfy a separate obligation of a spouse, the other spouse is entitled to reimbursement for one-half of the amount or value that the property had at the time it was used. La. C.C. Art. 2364.

IsAs discussed above, the trial court did not err when it determined that the mortgage debt is Mr. Maxwell’s separate debt. Therefore, the trial court did not err in determining that Mrs. Maxwell is due reimbursement because community property, i.e., the CD, was used to satisfy Mr. Maxwell’s separate obligation, i.e., the OIB Line.

We note the discrepancy between the $51,000 reimbursement awarded to Mrs. Maxwell and the $51,800.95 amount calculated by Mrs. Maxwell. The record suggests that the $51,000 amount was calculated with round numbers, i.e., the $22,961.50 community debt became $23,000 and the $126,121.69 CD became $126,000. Therefore, it was calculated that $102,000 of community funds was used to pay Mr. Maxwell’s separate debt, one-half of which is $51,000. We note that Mrs. Maxwell does not request that the judgment be amended to increase the reimbursement due to $51,800.95, and does, in fact, contend that it should be affirmed. Therefore, we will not disturb the calculation of the reimbursement due to Mrs. Maxwell.

Accordingly, Mr. Maxwell’s argument lacks merit.

The OIB Account

Mr. Maxwell argues that the trial court erred when it determined that the OIB Account was community property, and he contends that the $10,000 is his separate property. He contends that the trial court improperly found that a sum that was withdrawn from his separate funds, deposited into a joint account for eight days and then transferred to his separate account did not remain his separate property.

Mrs. Maxwell argues that the trial court correctly determined that the OIB Account is a community asset. She states that Mr. Maxwell made a |1f)deposit of $40,988.91 of his separate funds into their joint account and then wrote two checks from that account—one for $10,000 and one for $50,000. She contends that the issue is not about the comingling of funds, but, rather, that he withdrew funds that exceeded the amount of his deposit.

Property of married persons is either community or separate, subject to certain exceptions not applicable to this case. La. C.C. Art. 2335. Things in the possession of a spouse during the existence of a regime of community of acquets and gains are presumed to be community, but either spouse may prove that they are separate property. La. C.C. Art. 2340. The spouse seeking to rebut the presumption bears the burden of proving the property is separate in nature. Statham v. Statham, 43,324 (La.App. 2 Cir. 6/11/08), 986 So.2d 894, writ denied, 08-1578 (La. 10/10/08), 993 So.2d 1288.

When separate and community funds are deposited into one bank account, this fact does not convert the entire account into community property. Fulco v. Fulco, 50,256 (La.App. 2 Cir. 11/18/15), 183 So.3d 573. Only when separate funds are commingled with community funds indiscriminately so that the separate funds cannot be identified or differentiated from the community funds are all the funds characterized as community funds. Curtis v. Curtis, 403 So.2d 56 (La. 1981).

The evidence presented at trial shows that, on September 7, 2010, Mr. Maxwell made a deposit of $40,988.91 into a joint bank account he owned with Mrs. Maxwell that previously had a balance of approximately $23,000. Mr. Maxwell testified that this was a deposit of his separate funds, and approximately $13,000 of this amount came from closing a retirement account he had before the marriage. On September 15, 2010, he wrote one check from the joint account for $10,000 to open the OIB Account and a Insecond check for $50,000 to acquire the CD. The trial court determined that the funds used to open the OIB Account were commingled funds and that Mr. Maxwell did not overcome the presumption of community.

Because the amount Mr. Maxwell withdrew, i.e,, $60,000, exceeded the amount of separate funds he deposited, i.e., $40,988.91, approximately $19,000 of community funds was used by Mr. Maxwell to open the OIB Account and to purchase the CD. The evidence presented by Mr. Maxwell at trial did not demonstrate that the $10,000 he withdrew to open the OIB Account was solely from the separate funds he deposited. By withdrawing funds in an amount that exceeded the amount of separate funds he deposited, his separate funds became indiscriminately comingled with the community funds so that the separate funds could not be identified or differentiated from the community funds. Therefore, the trial court was not manifestly erroneous when it determined the OIB Account is community property.

Accordingly, Mr. Maxwell’s argument lacks merit.

Rental Expenses

Mr. Maxwell argues that the trial court erred in allowing counsel for Mrs. Maxwell to determine what expenses could be deducted from gross rental proceeds because counsel knew that the smaller the deduction, the more income his client gained. He states that counsel for Mrs. Maxwell gave him a partial credit and allowed for deduction for the taxes, insurance and repairs in the amount of $10,709.22; and, thus, the detailed descriptive list showed that Mr. Maxwell received income of $39,015.78. He contends that the taxes, insurance and repairs should have totaled $23,944.60, so the net rental income on the detailed descriptive list should have been $25,780.40.

[12Mrs. Maxwell states that Mr. Maxwell received $49,725 in rental income between December 2012 and July 2014. She contends that he never produced documentary evidence of rental income and expenses. She argues that Exhibit M-13 should not have been admitted into evidence and that Mr. Maxwell should not have received credit.

The trial court stated that Mr. Maxwell was entitled to a credit for expenses used for the preservation of a community asset if the amounts claimed could be directly tied by documentation to the community asset. It reviewed the evidence and determined that Mr. Maxwell proved that he spent $10,709.22 in taxes, insurance and repairs to preserve a community asset. Although Mr. Maxwell attempted to prove additional expenses by producing documents on the day of trial, the trial court denied the admission of these documents because “more than ninety days had elapsed between the continuation of the trial and ample opportunity to provide said documents to opposing counsel existed.” The trial court was not manifestly erroneous when it determined the amount of the credit owed to Mr. Maxwell fór expenses used for the preservation of a community asset.

Accordingly, Mr. Maxwell’s argument lacks merit.

Rental Profit Payments

Mr. Maxwell argues that the trial court erred when it failed to give credit to him for the payments he voluntarily made to Mrs. Maxwell from house rental proceeds. He notes that there was no court order or judgment requiring him to make these payments, but that, out of fairness, he paid to Mrs, Maxwell approximately one-half of the net rental income he received, amounting to $9,895. He contends that it is unfair to ignore these payments because Mrs. Maxwell will receive double recovery.

[ lsThe trial court reviewed the evidence presented by Mr. Maxwell, including copies of checks from him to Mrs. Maxwell. In its ruling, it stated:

The Court is unaware for what purpose copies of checks designated as 37E and made apart [sic ] of M-13, in globo, are being offered. The Court does not feel that these checks to Mrs. Maxwell are relevant nor can they be utilized to offset the value assigned to that asset.

A review of the evidence supports the trial court’s finding that Mr. Maxwell did not demonstrate the purpose of producing these checks. He vaguely labeled the exhibit as “Brooke Payments,” and the checks do not include information in the memo line to explain their purpose. The trial court acted within its discretion and was not manifestly erroneous when it did not award Mr. Maxwell a credit for what he alleged were rental payments to Mrs. Maxwell.

Accordingly, Mr. Maxwell’s argument lacks merit.

CONCLUSION

For the foregoing reasons, we affirm the trial court’s judgment of partition in favor of Defendant Brooke Pauline Bennett Maxwell and against Plaintiff Mack Buddy Maxwell, Jr. Costs of this appeal are assessed to Mack Buddy Maxwell, Jr.

AFFIRMED.

APPLICATION FOR REHEARING

Before BROWN, WILLIAMS, MOORE, PITMAN and COX, JJ.

Rehearing denied.

      . We note that throughout the trial, the trial court did a commendable job in allowing the parties to present and argue their respective positions and in conducting an ad-hoc-like bidding auction to resolve and award the movable assets of the former community.


author: LOLLEY, J.

text:
    Jamie MERCER, Individually and on Behalf of Her Deceased Daughter, Anna Celeste Lowe, Plaintiff-Appellee v. Wesley LOWE, Catherine “Cat” Lowe, State of Louisiana Department of Children and Family Services (formerly Louisiana Department of Social Services), Tameika Monday, Larry C. Dean, Bossier Parish Sheriff, Buddy Caldwell, Attorney General and Louisiana Office of Risk Management, Defendants-Appellants
    No. 51,333-CA
    Court of Appeal of Louisiana, Second Circuit.
    April 5, 2017

      HUDSON, POTTS & BERNSTEIN, By: Jay P. Adams, Sara G. White, Counsel for Defendants-Appellants, State of Louisiana DCFS, and Tameika Monday
    GREGORIO, CHAFIN & JOHNSON By: Scott J. Chafin, Jr., NICKELSON LAW, By: John C. Nickelson, Counsel for Plaintiff-Appellee, Jamie Mercer, individually, and on behalf of her deceased daughter, Anna Celeste Lowe
    LANGLEY, PARKS, HORTON & MAXWELL By: Glen Louis Langley, COLVIN, SMITH & MCKAY By: Jennifer Pool McKay Counsel for Defendants-Appellees, Larry Dean, Sheriff, and Debra McKay
    WESLEY LOWE, Defendant-Appellee, In Proper Person
    CATHERINE LOWE, Defendant-Ap-pellee, In Proper Person
    Before LOLLEY, PITMAN, and GARRETT, JJ.
   LOLLEY, J.

| ] This appeal arises from the Twenty-Sixth Judicial District Court, Parish of Bossier, State of Louisiana, which granted summary judgment in favor of the Bossier Parish Sherriffs Office and Detective Debra McKay, finding that discretionary immunity provided by La. R.S. 9:2798.1 applied under these circumstances. The State of Louisiana through the Department of Children and Family Services now appeals that judgment. For the following reasons, we affirm the judgment of the trial court.

FACTS

This matter stems from the tragic death of five-year-old Anna Celeste Lowe, born June 13, 2005, to biological father, Wesley Lowe, and biological mother, Jamie Mercer. At the end of 2010, Anna was living in Bossier Parish, Louisiana, with Wesley and her stepmother, Catherine Lowe, due to a pending investigation in Ouachita Parish against Jamie for the alleged physical and sexual abuse of Anna.

Around September 24, 2010, Wesley took Anna to a doctor for a bruise on her forehead. Wesley informed the doctor that Jamie punched Anna in the head, and also reported suspected sexual abuse. Subsequently, Anna was evaluated at the Center for Children and Families in Monroe, Louisiana. On September 29, Wesley filed in Bossier Parish District Court for a protective order against Jamie on Anna’s behalf. According to the protective order, Jamie was allowed only supervised visits with Anna while the investigation was ongoing. The last visit Jamie had with Anna was on October 30, 2010, at the Louisiana State Fair in'Shreveport.

On December 9, 2010, a teacher at Elm Grove Elementary School in Bossier Parish reported suspected physical abuse of Anna to the Bossier 1 ¿Parish Sherriff s Office (“BPSO”). Specifically, the teacher reported a bruise on Anna’s neck, which Anna claimed had been caused by her mother. An investigation was opened and assigned to Bossier Parish Detective Debra McKay, who contacted Wesley to inquire about Anna’s bruise. Detective McKay had knowledge of the pending investigation in Ouachita Parish involving Jamie. After learning from Wesley that Anna had not returned to Jamie’s custody since October 2010, Det. McKay closed the investigation in Bossier Parish concerning the December 2010 bruise on Anna’s neck.

About a month later, on January 13, 2011, at around 9:30 in the morning, Anna was brought to the Willis-Knighton Pier-remont Emergency Room in Shreveport where she was pronounced dead. At the time, Wesley and Catherine claimed that Anna had a stomach virus, but the coroner’s report revealed Anna’s stomach was severed from her intestines—the recorded cause of death was internal injuries and bleeding due to blunt force trauma. Subsequently, it was learned that Catherine was physically abusing Anna. Catherine was indicted for first degree murder by a grand jury, but eventually accepted a plea deal, and pled guilty to manslaughter in connection with Anna’s death.

On January 11,2012, Jamie, individually, and on behalf of her deceased daughter, filed survival and wrongful death actions against defendants: Wesley; Catherine; the State of Louisiana, Department of Family and Child Services (“DCFS”); Ta-meika Monday, DCFS employee; BPSO; Det. McKay; the Attorney General for the State of Louisiana; and, the Louisiana Office of Risk Management. Jamie later voluntarily dismissed the Attorney General and Office of Risk Management. BPSO and Det. McKay filed a motion for summary judgment. DCFS filed an opposition | ¡¡arguing it was grossly negligent for Det. McKay to close her investigation when evidence of continued abuse existed. Jamie filed an opposition also, but only to the extent that if summary judgment were granted in favor of BPSO and Det. McKay, no evidence of allocation of fault as to BPSO or Det. McKay should be considered at a trial of the matter.

After a hearing on the joint motion, the trial court granted summary judgment in favor of BPSO and Det. McKay. DCFS alone now appeals that ruling. Jamie, Wesley, and Catherine have not filed briefs in this appeal.

DISCUSSION

In its only assignment of error, DCFS argues the trial court erred in granting summary judgment in favor of BPSO and Det. McKay. Specifically, it argues the trial court erred in finding Det. McKay’s actions during the investigation of Anna’s December 2010 braise were not grossly negligent and thus entitled to discretionary immunity in accordance with La. R.S. 9:2798.1. We disagree with DCPS’s argument.

A de novo standard of review is required when an appellate court considers rulings on summary judgment motions, and the appellate court uses the same criteria that governed the trial court’s determination of whether summary judgment was appropriate. Bank of N.Y. Mellon v. Smith, 2015-0530 (La. 10/14/15), 180 So.3d 1238, 1243. The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action. The procedure is favored and shall be construed to accomplish these ends. La. C.C.P. art. 966(A)(2). A motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. |4966(A)(3). The burden of proof rests with the mover. Nevertheless, if the mover will not bear, the burden of proof at trial on the issue that is before the court on the motion for summary judg^ ment, the mover’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. La. C.C.P. art. 966(D)(1).

When the court grants a motion for summary judgment that a party or non-party is not negligent, is not at fault, or did not cause in whole or in part the injury or harm alleged, that party or non-party shall not be considered in any subsequent allocation of fault, and evidence shall not be admitted at trial to establish the fault of that party or non-party. La. C.C.P. art. 966(G).

Normally, liability is judged under the traditional duty-risk analysis; however, where statutory immunity from liability applies, the necessity of a duty-risk analysis of a public entity’s actions is not reached. See Fowler v. Roberts, 556 So.2d 1 (La. 1989); see also Brodnax v. Foster, 47,079 (La.App. 2 Cir. 04/11/12), 92 So.3d 427, 432, writ denied, 2012-1074 (La. 09/12/12), 98 So.3d 310. Where a public entity exercises its policymaking or discretionary duties, immunity applies in the absence of gross negligence. See Anderson v. Anderson, 2007-805 (La.App. 5 Cir. 02/06/08), 980 So.2d 15, writ denied, 2008-0558 (La. 05/02/08), 979 So.2d 1285. The Louisiana Supreme Court has adopted the .United States Supreme Court’s two-step inquiry set forth in Berkovitz v. United States, 486 U.S. 531, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988), to analyze the application of immunity under La. R.S. 9:2798.1. Simeon v. Doe, 618 So.2d 848, 852-3 (La. 1993); Peterson v. City of Tallulah, 43,197 (La.App. 2 Cir. 04/23/08), 981 So.2d 192, 195. First, a court must determine whether a statute, regulation or policy specifically prescribes the course of action for the employee or agency to follow. Id. If so, there is no discretion on the part of the employee or agency and therefore no,immunity. Id. If a court determines discretion is involved, the court must then determine whether that discretion “is the kind which is shielded by the exception, that is, one grounded in social, economic or political policy.” Fowler, supra at 15.

Gross negligence, has been defined as the want of even slight care and diligence; the want of diligence which even careless men are accustomed to exercise; the entire absence of care; utter disregard of the dictates of prudence, amounting to complete neglect of the rights of others; the extreme departure from ordinary care; or, the want of even scant care. See Ambrose v. New Orleans Police Dep’t Ambulance Serv., 93-3099 (La. 07/05/94), 639 So.2d 216, 219-20. Gross negligence, therefore, has a well-defined legal meaning distinctly separate, and different, from ordinary negligence. Id.

Louisiana R.S. 9:2798.1 states, in pertinent part:

B. Liability shall not be imposed on public entities or their officers or employees based upon the exercise or performance or the failure to exercise or perform their policymaking or discretionary acts when such acts are within the course and scope of their lawful powers and duties.
C. The provisions of Subsection B of this Section are not applicable:
(1) To acts or omissions which are not reasonably related to the legitimate governmental objective for which the policy-making or discretionary power exists; or
(2) To acts or omissions which constitute criminal, fraudulent, malicious, intentional, willful, outrageous, reckless, or flagrant misconduct.

| fiThus, although BPSO and its employees may be entitled to the qualified immunity set forth in La. R.S. 9:2798.1, there is no such immunity if gross negligence can be proved to negate entitlement to discretionary immunity. Therefore, the issue presented in this matter is whether Det. McKay’s actions were a willful, outrageous, and extreme departure from ordinary diligence under these circumstances.

Oliveaux v. St. Francis Med. Ctr., 39,-147 (La.App. 2 Cir. 12/15/04), 889 So.2d 1264, writ denied, 2005-0454 (La. 04/29/05), 901 So.2d 1067, involved an investigation by Ouachita Parish DCFS (then Child Protection Services or CPS) with facts similar to the instant matter. In Oliveaux, the plaintiff, father of a deceased child, brought wrongful death and survival actions against the hospital and DCFS. In November 1993, the child was brought to the hospital by her mother’s boyfriend, who claimed a chest of drawers had fallen on the child, causing a swollen scalp. A CT scan revealed three skull fractures and a subdural hematoma which prompted the doctor to call a social worker, who, in turn, contacted DCFS to conduct an interview. It was unclear which party was negligent in properly conveying the severity of the child’s injuries, but either the social worker failed to report the severity of the injuries to DCFS, or DCFS failed to record the information during intake, resulting in the case receiving a designation of Level III priority for unspecified physical abuse rather than a “high priority” designation.

During the six days in which the child remained in the hospital, the DCFS caseworker and a West Monroe police detective conducted interviews of the present family members. The child’s maternal grandparents, who sometimes cared for the child, appeared irritated with their daughter’s 17boyfriend and stated that they did not believe the story about the chest of drawers, but no formal accusation of abuse was ever made. After six days in the hospital, the child was released to her mother’s custody. A month later, the child was brought to the hospital by ambulance, and pronounced dead upon arrival. The boyfriend claimed the child had drowned in the bathtub, but doctors noticed signs of trauma to the child’s anus and rectum indicating sexual abuse. The boyfriend was subsequently convicted of murder and sentenced to death. This Court affirmed the Oliveaux trial court’s conclusion that the DCFS caseworkers exercised discretion within the course and scope of their lawful powers and duties, entitling DCFS to discretionary immunity. Id. at 1272.

As in Oliveaux, supra, there is nothing in this record to show that Det. McKay was contacted by anyone asserting the injury and abuse to Anna was caused by anyone except Anna’s mother (which is assumed meant Jamie). No other formal accusations of abuse were made. Detective McKay’s affidavit stated that, after learning that Anna reported the bruise was caused by her mother, she contacted Wesley to inquire about the bruise, and was satisfied that Anna had not and would not be returned to Jamie until the Ouachita Parish investigation was completed.

No summary judgment evidence has been presented here to prove Det. McKay breached a specific protocol for a child abuse investigation. Her actions in the investigation of the December 2010 bruise on Anna’s neck were discretionary. According to Det. McKay’s affidavit, the only personal knowledge she had of any alleged abuse of Anna was the December 9, 2010, notification of the bruise on Anna’s neck. During her investigation of Anna’s bruise, Det. McKay became aware of the pending Isinvestigation concerning allegations against Jamie and her male roommate, which was being conducted in Ouachita Parish because Jamie lived in Monroe.

Considering that an ongoing investigation concerning allegations of abuse to Anna was being conducted in another parish, Det. McKay’s actions do not rise to a level of gross negligence. Although DCFS argues that Det. McKay should have investigated further or could have done things differently, one does not have the advantage of hindsight when making these discretionary decisions during an investigation,

Louisiana R.S. 9:2798.1 protects public entities from liability for discretionary decisions by providing immunity when performing “their policy-making or discretionary acts when such acts are within the course and scope of their lawful powers and duties.” Fowler, supra at 20. When another state agency has an open investigation into a child abuse case, it is not grossly negligent for a detective to make a discretionary decision to close an investigation concerning an incident involving a single bruise. After reviewing the entire record and considering the summary judgment evidence, we find that BPSO and Det. McKay, as a matter of law, cannot be held liable for what was the exercise of a discretionary function entitled to statutory immunity in accordance with La. R.S. 9:2798.1. Thus, this assignment of error has no merit.

|3CONCLUSION

Considering the foregoing, we find the trial court did not err in granting summary judgment in favor of the Bossier Parish Sheriffs Office and Detective McKay. In accordance with La. R.S. 13:5112(A), costs of this appeal are assessed to appellant, the Department of Children and Family Services, in the amount of $3,296.80.

AFFIRMED.