author: COOKS, Judge.

text:
    LAFAYETTE PARISH SCHOOL BOARD v. Reginald SIMMONS, et al.
    No. 09-926.
    Court of Appeal of Louisiana, Third Circuit.
    March 17, 2010.

      J. Michael Wooderson, Cassie L. Willis, Lafayette, LA, for plaintiff/appellee: Lafayette Parish School Board.
    Raymond Simmons, Baton Rouge, LA, for defendant-appellant: Reginald Simmons.
    Court composed of SYLVIA R. COOKS, MARC T. AMY, and ELIZABETH A. PICKETT, Judges.
   COOKS, Judge.

| ^Defendant, Reginald Simmons, appeals the judgment of the trial court finding him personally liable for a failure to pay taxes and casting him in judgment for $12,468.52, along with penalties, interest, and ten percent attorney fees. For the following reasons, we reverse the trial court’s judgment.

FACTS AND PROCEDURAL HISTORY

Defendants, Reginald Simmons and AJS Investments, LLC opened up the restaurant, the Original Italian Pie in the Parish of Lafayette, Louisiana. According to the Lafayette Parish School Board (hereafter School Board), defendants failed to pay taxes for the months of October 2007 through April 2008. After April 2008, the Original Italian Pie was no longer in business. The record reflects that AJS Investments filed for bankruptcy on February 22, 2008.

When taxes for the Original Italian Pie were not reported or remitted, the School Board’s Sales and Use Tax Collection Division issued a Notice of Assessment in accordance with La. R.S. 47:337.51, which required action on the part of the defendants within sixty days. A failure to act within the sixty day period results in a final enforceable assessment. Mr. Simmons refused to accept the Notice of Assessment.

Following defendants failure to act after receipt of the Notice of Assessment, in accordance with the Lafayette Parish School Board Sales and Use Tax Ordinance the School Board filed a petition to collect after assessing defendants for the delinquent period. The amount of taxes due was estimated in excess of $12,000.00, in addition to a five (5%) percent penalty for each thirty days in delinquency, not to exceed twenty-five (25%) percent in aggregate of the tax due. Although the petition listed both Mr. Simmons and AJS Investments as defendants, at the hearing the |2School Board sought judgment solely against Mr. Simmons personally.

A hearing on the matter was held. After considering the arguments of the respective parties, the trial court rendered judgment against “Defendants, Reginald Simmons d/b/a The Original Italian Pie” for the sum of $12,468.52, along with penalties and interest as provided by law, and ten percent attorney fees. Mr. Simmons perfected an appeal to this court, and contends any judgment against the business and corporation does not automatically amount to personal liability of the corporate officer, without proof of collection of the taxes and a willful failure to remit same. For the following reasons, we reverse the trial court’s judgment.

ANALYSIS

The issue in this appeal is whether the trial court properly applied La. R.S. 47:337.46 which provides as follows:

A. Notwithstanding any other provision of law to the contrary, if any corporation, limited liability company, or limited partnership fails to file returns or to remit the sales and use taxes collected from purchasers or consumers under the local ordinance and this Chapter, the collector is authorized, as an alternative means of enforcing collection, to hold those officers or directors, or those managers or members as defined in R.S. 12:1301(A)(12) and (13), having direct control or supervision of such taxes or charged with the responsibility of filing such returns and remitting such taxes and who willfully fail to remit or account for such taxes collected, personally liable for the total amount of such taxes collected, and not accounted for or not remitted, together with any interest, penalties, and fees accruing thereon. Collection of the total amount due may be made from any one or any combination of such officers or directors, or managers or members as defined in R.S. 12:1301(A)(12) and (13) who willfully fail to remit or account for such taxes collected, by use of any of the alternative remedies for the collection of taxes as provided in R.S. 47:337.45.
B. A corporation, limited liability company, or limited partnership by resolution of the board of directors or members may designate an officer or director, or a manager or member as defined in R.S. 12:1301(A)(12) and (13) having direct control or supervision of such taxes or charged with the responsibility of filing such returns and remitting such taxes, and such resolution shall be filed with the secretary Rof state.

To prevail under La. R.S. 47:337.46(A), the School Board had to prove by a preponderance of the evidence two essential elements of its cause of ac.tion: (1) That the taxes were in fact “collected” and, (2) the defendant “willfully” failed to remit the taxes. See Bergeron v. Albert, 02-1955 (La.App. 1 Cir.11/21/03), 861 So.2d 269, writ denied, 04-206 (La.3/26/04), 871 So.2d 351. We are satisfied the evidence in this record is insufficient to prove the essential elements needed to shackle Mr. Simmons with personal responsibility for the business failure to file and remit the claimed sales and use taxes. It is a well-settled premise that taxing statutes must be strictly construed against the taxing authority. Goudchaux/Maison Blanche, Inc. v. Broussard, 590 So.2d 1159 (La.1991).

Patrick Lewis, an auditor for the School Board, testified specifically that taxes due from October 2007 through April, 2008 were not paid. However, there was no testimony from Mr. Lewis as to whether taxes were actually collected at the Original Italian Pie; and, if they were, for what periods of time. Mr. Simmons testified the restaurant was out of business by February, 2008; thus, no taxes could have been collected from that point. The School Board presented nothing to contradict that testimony.

The cases cited by the School Board below in support of its position are factually distinguishable from the present case. In Bergeron,, 861 So.2d 269, there was no question that the taxes had in fact been collected. Second, the majority found the willfulness component was satisfied because rather than delivering the taxes to the State, Mr. Albert, the defendant corporate officer, diverted those funds to a sister corporation by way of a “refund.” The majority noted that the trial court specifically set forth in its reasons for judgment that the taxes in question “were collected” and |/‘failed to be remitted willfully.” Thus, the appellate court found there was “a reasonable factual basis for the finding of the trial court.” Here the trial judge did not provide any reasons to support its ruling in favor of the Board either in the judgment or at the hearing on the matter.

The School Board also cited State v. DeJesus, 94-261 (La.9/16/94), 642 So.2d 854, 857. In that ease, the supreme court noted the State can proceed against “officers or directors who possessed significant responsibility for the tax-making decisions of that business entity.” Id. at 857. The court also noted that to impose personal liability on an officer or director, he or she must willfully fail to remit such collected taxes. There was no question the Defendant corporate officer in DeJesus collected taxes and willfully failed to pay them. His home was raided and over $135,000.00 in cash was seized from his home. DeJesus also is factually distinguishable from the instant case. The record is devoid of any evidence that Mr. Simmons actually collected taxes and willfully failed to remit them.

Considering that taxing statutes are strictly construed against the taxing authority, we do not find, under the facts of this case, that the School Board met its burden of showing the taxes were collected and willfully not remitted. Therefore, the trial court’s judgment in favor of the School Board is reversed.

DECREE

For the following reasons, the judgment of the trial court is reversed. All costs of this appeal are assessed against Plaintiff-Appellee, the Lafayette Parish School Board.

REVERSED.

AMY, J., concurs in the result.

PICKETT, J., concurs in the judgment.


source: Caselaw Access Project

author: CARAWAY, J. PEATROSS, J.,

license: Public Domain

text:
    ALLSTATE INSURANCE COMPANY, Plaintiff, v. FRED’S, INC., Defendant.
    No. 44,508-CA.
    Court of Appeal of Louisiana, Second Circuit.
    March 17, 2010.

      Forrester & Dick by David C. Forres-ter, Mark G. Murphey, Baton Rouge, for Appellant, Allstate Insurance Company.
    Mayer, Smith & Roberts, L.L.P. by Steven E. Soileau, Shreveport, for Appellees, L & L Import Enterprises, Inc. and Colony Insurance Company.
    Before WILLIAMS, CARAWAY, PEATROSS, DREW and LOLLEY, JJ.
   CARAWAY, J.

11 This case involves an allegedly defective lamp sold by Fred’s Stores of Tennessee, Inc. (“Fred’s”), which purportedly caused a fire in a house insured by the plaintiff, Allstate Insurance Company (“Allstate”). In this court’s prior opinion concerning the trial court’s dismissal of the case on the exception of prescription, we ruled that the doctrine of contra non va-lentón applied because Allstate was prevented from determining the product’s manufacturer whose identity was not revealed on the product. Allstate Insurance Co. v. Fred’s, Inc., 44,508 (La.App.2d Cir.8/19/09), 18 So.3d 172. The insurer of the alleged manufacturer, Colony Insurance Company (“Colony”), sought a writ of certiorari from the Louisiana Supreme Court. Upon supervisory review of the ruling, the court reversed this court’s decision, as follows:

Writ granted. We reverse the court of appeal decision finding the doctrine of contra non valentem applicable to the facts presented. The court of appeal erred in finding Allstate’s delay “cannot be attributable to its own neglect,” an essential element in a defense to prescription based on this doctrine. Allstate’s two-year delay between its discovery request and its motion to compel, plus an additional year before adding Colony to the suit, evidences a lack of due diligence on the part of Allstate, precluding application of the contra non valentem doctrine. Accordingly, we reverse the decision of the court of appeal and remand to the court of appeal for consideration of pretermitted issues not addressed in the original opinion.

Allstate Insurance Co. v. Fred’s, Inc., 09-2275 (La.1/29/10), 25 So.3d 821.

The pretermitted issue noted in our first opinion which might also serve to defeat the claim of prescription concerns the liability of Fred’s to the homeowner/claimant for the defective lamp under the Louisiana Products Liability Act, La. R.S. 9:2800.51, et seq. (hereinafter the “LPLA”). |2Fred’s was timely sued initially by Allstate, and the action against Fred’s would interrupt prescription if Fred’s is liable as a non-manufacturer seller addressed in La. R.S. 9:2800.53(l)(a) [hereinafter “Section 2800.53(l)(a)”].

The evidence in the trial court was that the allegedly defective lamp which caused the house fire was labeled by Fred’s. The question now presented under Section 2800.53(l)(a) is whether the designation of Fred’s on the product’s label may result in the non-manufacturer seller’s liability under the LPLA which is imposed upon one “who labels a product as his own or who otherwise holds himself out to be the manufacturer of the product.”

Facts

The evidence at the trial of the exception of prescription was introduced through the affidavit of an electrical engineer and fire investigator, Vernon Wade. Wade stated that he was retained by Allstate to investigate the subject fire. While investigating the fire scene, he found a red ceramic lamp which had been purchased at Fred’s shortly before the fire. He identified the cause of the fire as resulting from an electrical short in the power cord of the lamp. With the assistance of the homeowner and her daughter, Wade “secured a lamp from Fred’s Discount Store” and “was informed that the new lamp was an exact duplicate of the damaged lamp found in the area of origin of the fire.” The exemplar lamp was labeled, “Made in China. Distributed by Fred’s.” Wade noted that “there was no other company or brand displayed on the lamp or its tags.”

^Louisiana Products Liability Law

The history of Louisiana’s product liability law prior to the 1988 enactment of the LPLA reveals that the ruling in Penn v. Inferno Mfg. Corp., 199 So.2d 210 (La.App. 1st Cir.1967), writ denied, 251 La. 27, 202 So.2d 649 (1967), was the leading case before the LPLA which explained the rationale for the imposition of liability upon the non-manufacturer seller which labels the product as its own. As we noted in our initial opinion, Penn is a remarkably similar case which involved the manufacturer and seller of a defective sight glass for a testing device which exploded and injured an individual in an oil field accident. Also, in the context of a plea of prescription, the court found a gauge distributor (Inferno) solidarily liable with the glass manufacturer (Corning) for a defect in the sight glass. The gauge distributor had labeled the gauge as its own. The plaintiff first sued the gauge distributor believing it to be the manufacturer of the defective glass. The gauge distributor answered the suit alleging that it did not manufacture the glass and named the manufacturer after the applicable prescriptive period had run. Plaintiff amended its petition some three years after the accident, to add as defendants the glass manufacturer, which was never served, and its insurer. After trial, the insurer raised the exception of prescription urging that the gauge distributor, Inferno, was not responsible under our redhibition law or products liability theory for the defective glass.

The Penn court affirmed the trial court’s rejection of the prescription exception finding that Inferno’s labeling of the product made it solidarily liable with the manufacturer. Therefore, the timely suit against Inferno ^served to interrupt prescription. The primary rationale for the determination of Inferno’s liability as a non-manufacturer seller was based upon rulings in other states and the Restatement of the Law of Torts cited in the opinion. Section 400 of the Restatement provides as follows:

400. Selling As Own Product Chattel Made By Another
One who puts out as his own product a chattel manufactured by another is subject to the same liability as though he were its manufacturer.

Rest.2d Torts § 400 (1965).

This “as his own” product test, or so-called “holding out” theory, for the imposition of a duty in tort upon the non-manufacturer seller is discussed in comment (d) of Section 400 of the Restatement, as follows:

d. The rule stated in this Section applies only where the actor puts out the chattel as his own product. The actor puts out a chattel as his own product in two types of cases. The first is where the actor appears to be the manufacturer of the chattel. The second is where the chattel appears to have been made particularly for the actor. In the first type of case the actor frequently causes the chattel to be used in reliance upon his care in making it; in the second, he frequently causes the chattel to be used in reliance upon a belief that he has required it to be made properly for him and that the actor’s reputation is an assurance to the user of the quality of the product. On the other hand, where it is clear that the actor’s only connection with the chattel is that of a distributor of it (for example, as a wholesale or retail seller), he does not put it out as his own product and the rule stated in this section is inapplicable. Thus, one puts out a chattel as his own product when he puts it out under his name or affixes to it his trade name or trademark. When such identification is referred to on the label as an indication of the quality or wholesomeness of the chattel, there is an added emphasis that the user can rely upon the reputation of the person so identified. The mere fact that the goods are marked with such additional words as “made for” the seller, or describe him as a distributor, particularly in the absence of a clear and distinctive designation of the real manufacturer or packer, is not sufficient to make inapplicable the rule stated in this Section. The casual reader of a label is likely to rely upon |fithe featured name, trade name, or trademark, and overlook the qualification of the description of source. So too, the fact that the seller is known to carry on only a retail business does not prevent him from putting out as his own product a chattel which is marked in such a way as to indicate clearly it is put out as his product. However, where the real manufacturer or packer is clearly and accurately identified on the label or other markings on the goods, and it is also clearly stated that another who is also named has nothing to do with the goods except to distribute or sell them, the latter does not put out such goods as his own. That the goods are not the product of him who puts them out may also be indicated clearly in other ways.

Penn’s reliance upon the products liability/tort theory of the Restatement amounted to a rejection of the defense argument that the retail seller could only be held accountable for the defects of a product under Louisiana’s redhibition law for sales. See, La. C.C. art. 2545. In redhibition in order for the seller to be liable for damage caused by a defective product, he would have to know of the defect before the sale whether or not he labeled the product as his own. Thus, Penn’s holding represents an import of the common law tort theory for products liability into Louisiana’s notion of delictual “fault” under Civil Code Article 2315, despite the contrary implication of the redhibition principle.

In 1978, the Louisiana Supreme Court had occasion to consider a non-manufacturer seller’s liability for its labeling of a product in Chappuis v. Sears Roebuck & Co., 358 So.2d 926 (La.1978). The defective hammer involved in the accident was sold with the Sears name and the “Craftsman” trademark, yet was manufactured by another company. Expressing multiple legal principles regarding why the responsibility of Sears was “the same as that of the manufacturer,” the court first cited Penn and recognized its ruling |fias the basis for Sears’ fault since “it held the product out to the public as its own.” Id. at 930.

The next important development leading to the enactment of the LPLA, and specifically, Section 2800.53(l)(a), was the 1983 proposed legislation from the Louisiana State Law Institute presented in House Bill 711 of 1983. William E. Crawford, Tort Law § 16:31, at 429, in 12 Louisiana Civil Law Treatise (2d ed.1983). In this first attempt to provide specific statutory law for products liability in Louisiana, the actual language now employed in Section 2800.53(l)(a) was drafted and included in the proposed definition for “manufacturer,” as section 2800.2(A)(1) of the bill. Id. Additionally, the Law Institute’s proposed comment (b) for that section of the bill provided, as follows:

(b) Paragraph (A)(l) of this Section reflects the existing jurisprudence that has extended manufacturer status to the product seller who labels a product as his own. See Penn v. Inferno Mfg. Corp., 199 So.2d 210 (La.Ct.App. 1st Cir. 1967); Clark v. Sears, Roebuck & Co., 254 So.2d 62 (La.Ct.App.3d Cir.1971); Fairburn v. Montgomery Ward & Co., Inc., 349 So.2d 1280 (La.Ct.App. 1st Cir. 1977); Renard v. Bradley Automotive, 365 So.2d 1382 (La.Ct.App.2d Cir.1978); Chappuis v. Sears Roebuck & Co., 358 So.2d 926 (La.1978).

Id. at 434-435. While the 1983 legislative proposal was not adopted, Professor Crawford correctly observes in his treatise that many of the eventual provisions of the LPLA are derived substantially from the 1983 Law Institute bill.

With the passage of the LPLA in 1988, a multifaceted definition for the term “manufacturer” was employed in the legislation which holds the actual manufacturer and other non-manufacturing parties culpable as a | ^‘manufacturer” for damages caused by a product. This definition is set forth in Section 2800.53(1), as follows:

(1) “Manufacturer” means a person or entity who is in the business of manufacturing a product for placement into trade or commerce. “Manufacturing a product” means producing, making, fabricating, constructing, designing, re-manufacturing, reconditioning or refurbishing a product. “Manufacturer” also means:
(a) A person or entity who labels a product as his own or who otherwise holds himself out to be the manufacturer of the product.
(b) A seller of a product who exercises control over or influences a characteristic of the design, construction or quality of the product that causes damage.
(c) A manufacturer of a product who incorporates into the product a component or part manufactured by another manufacturer.
(d) A seller of a product of an alien manufacturer if the seller is in the business of importing or distributing the product for resale and the seller is the alter ego of the alien manufacturer. The court shall take into consideration the following in determining whether the seller is the alien manufacturer’s alter ego: whether the seller is affiliated with the alien manufacturer by way of common ownership or control; whether the seller assumes or administers product warranty obligations of the alien manufacturer; whether the seller prepares or modifies the product for distribution; or any other relevant evidence. A “product of an alien manufacturer” is a product that is manufactured outside the United States by a manufacturer who is a citizen of another country or who is organized under the laws of another country.

Discussion

Allstate’s action has charged Fred’s and Colonial’s insured, L & L Import Enterprises, Inc., each as a “manufacturer” in differing capacities as that term is defined under the LPLA. L & L Import is alleged as the actual manufacturer and is also alleged in Allstate’s amending petition to be at fault in designing the lamp. Although Colonial has denied these allegations and claimed that L & L Import was merely a wholesaler of the lamp without 18control over its design and manufacturer, Allstate’s allegations in its petition of the substance of its claim against L & L Import and the defect in the product itself are presumed as true for purposes of the peremptory issue of prescription.

With L & L Import presumed from the allegations to be a “manufacturer” with liability under the LPLA, we first conclude that a timely suit against a separate “manufacturer” under the LPLA would interrupt the prescription applicable to Allstate’s claim. As expressed in La. R.S. 9:2800.52, which defines the scope of the LPLA, the “conduct or circumstances that result in liability under [the LPLA] are ‘fault’ within the meaning of Civil Code Article 2315.” Thus, liability as a “manufacturer” under the LPLA is delictual and both L & L Import and Fred’s may be shown as joint tortfeasors. Interruption of prescription against one joint tortfeasor by a timely action is effective against all joint tortfeasors. La. C.C. art. 2324(C).

Our interpretation of Section 2800.53(l)(a) for the measure of Fred’s labeling of this product is governed by the following Civil Code principles:

Article 9. Clear and unambiguous law
When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature.
| {Article 10. Language susceptible of different meanings
When the language of the law is susceptible of different meanings, it must be interpreted as having the meaning that best conforms to the purpose of the law.

The statutory language in question pertains to one “who labels a product as his own.” Initially, from the general context of a product’s label, we make the following observations. One, the dictionary definition of label is “something functioning as a means of identification, esp. a small piece of paper or cloth attached to an article to designate its origin, owner, contents, use, or destination.” The American Heritage Dictionary, 709 (2nd ed.1982). This reflects that one who “labels” can communicate with that label for many different purposes. Second, under the LPLA, a product “means a corporeal movable that is manufactured for placement into commerce.” La. R.S. 9:2800.53(3). Therefore, regarding the labeling of a product, the label is a communication for a designation of a corporeal movable which is placed into commerce.

With the meaning of the words “label” and “product” clear and unambiguous, we next find it most important to observe that the phrase “labels a product as his own” does not literally identify the subject of manufacturing as the targeted designation of the product as it is labeled and placed in commerce for communication to a purchaser. If Fred’s was the manufacturer and labeled the product, “Manufactured by Fred’s,” liability for the defective lamp would be predicated upon Section 2800.53(1) alone which holds culpable the actual manufacturer, and such communication to the purchaser of the actual manufacturer would be irrelevant. Instead, the first phrase of the statute regarding the product label concerns the labeling | tnof a product “as his own” or for purposes of a designation and emphasis to the purchaser of a party’s identity with the product. From the literal wording of the statute, this labeling “as his own” results in LPLA liability upon a non-manufacturer irrespective of what the label may or may not suggest about the actual manufacturer.

For example, in Chappuis, supra, the labeling of the defective hammer with the Sears name and its Craftsman brand did not designate Sears as the manufacturer. The actual manufacturer, Vaughan and Bushnell, was not listed on the product, and Sears is a well-known national retailer of products, not necessarily understood to be a manufacturer. The Supreme Court’s summary conclusion for the liability for the Sears label likewise did not place emphasis upon the label’s implication that Sears might have manufactured the hammer, but that Sears “held it out to the public as its own.” Chappuis, supra.

In interpreting the application of the language of the initial labeling phrase of Section 2800.53(l)(a), we disagree with the conclusion reached by the federal district court in Shapiro v. Wal-Mart Stores, Inc., 1994 WL 577346 (E.D.La.1994), concerning the second phrase of the statute. In a footnote, the court concluded:

The phrase “labels a product as his own” in La. R.S. 9:2800.53(l)(a) is defined by the remainder of that subsection which provides, “or who otherwise holds himself out to be the manufacturer of the product.” The statute therefore refers to a label creating the appearance that the named entity manufactured the product.

\uId. note 2. The court’s strained use of a type of ejusdem generis construction was inappropriate. First, the two phrases are in the disjunctive and the prohibition of La. R.S. 1:9 against merging their separate meanings into one is clearly applicable. Second, the phrase, “otherwise holds himself out,” is expressly in contrast to the labeling of the product with the non-manufacturer’s name which is the subject of the initial phrase of the statute. The leading case where a non-labeler/non-manufacturer seller was held liable for a defect in a product is Rutherford v. Coca-Cola Bottling Co. of Shreveport, 501 So.2d 1082 (La.App. 2d Cir.1987). In Rutherford, the consumer brought an action against the local bottler for injuries allegedly suffered after finding a bug in a canned soft drink. The can’s label contained the names of the national company, Coca-Cola, USA, and the cannery of the beverage, but not the name of the local bottling manufacturer which was the distributor of all Coca-Cola products in Shreveport. Nevertheless, the local bottler which only retailed and distributed the can drink was held liable for the can’s defect because it held itself out as the manufacturer of Coca-Cola products in Shreveport. Notably, Chief Judge Hall (later Justice Hall) observed that “insofar as the consumer in its distribution area [was] concerned, there [was] no distinction between bottled and canned Cokes” and “the fact that the label contains a small print | ^identification of the actual manufacturer is of no consequence.” Id. at 1085-1086.

Therefore, from the clear language of the statute, the two descriptive phrases of Section 2800.53(l)(a) address two different situations by which a non-manufacturer seller may be liable. Our interpretation for this dispute concerns one “who labels a product as his own.”

Next, turning to the phrase “as his own,” we find that the implication of ownership from this term is not the only key to its scope and meaning. The phrase “as his own” in the overall context of the manufacture, distribution and sale of a product has a breadth of meaning. Multiple parties along the distribution chain of the product to the purchaser may own the product at the manufacturing, wholesale, and retail stages. At the critical time of the sale, the retail seller is typically the owner of the product, yet that product may be labeled by another non-manufacturing party “as his own.”

For example, the defective canned drink in Rutherford contained the recognized name brand of Coca-Cola on the label. Coca-Cola, USA did not own and distribute the product at the time of the sale to the consumer nor was it responsible for the defective canning manufacturing process which led to the insect inside the can. Yet, while neither an owner, distributor nor manufacturer, Coca-Cola, USA might still be said to have labeled the product as its own. In Chappuis, the retail sales business of Sears would be generally understood by a purchaser as involving Sears’ ownership of all of its products for sale regardless of their labels. In that sense, Sears’ labeling |13of the defective hammer with its name did not convey a message to the purchaser about its ownership of the hammer any different from the other brands of hammers for sale at Sears. The Sears label, as has been noted, also did not clearly indicate that it manufactured the hammer. Nevertheless, our Supreme Court determined that Sears was at fault for conveying to the purchaser something more than just its ownership or its manufacturing of the hammer, and it expressed this basis for fault as Sears’ holding the product out “as its own.”

In summary, from our interpretation of the language of the statute under the directive of Civil Code Article 9, the legislative use of the word label, while not ambiguous, is clearly a general and broad term. The labeling of a product at which Section 2800.53(l)(a) is directed is also not so narrowly restricted by the phrase “as his own” to mean only a label designation suggesting that the labeling party is the actual manufacturer or that it owns the product at the time of sale. This language of the LPLA therefore does not focus on one specifically worded label by which a non-manufacturing labeler of the product becomes liable. The LPLA liability can arise from different labels which are expressed on the product. This does not mean that the phrase one “who labels a products as his own” is ambiguous, but it does allow for the employment of the rule of Article 10 of the Civil Code for the statutory measure of the wording of a given label, such as Fred’s, for a determination of liability.

Fred’s label on the lamp designated that it was “Distributed by Fred’s.” The lamp is also labeled, “Made in China.” Otherwise, the lamp 114had no label which identified another party as having any connection with the lamp. Regarding the designation of China as the place of manufacture, while the statement in its context suggests that Fred’s did not manufacture the lamp, the statement’s failure to identify the manufacturer also leaves open the further suggestion of the possibility of Fred’s involvement with the product in some capacity as it was produced in China. There is also a further implication to the purchaser that the placement of the label on the lamp occurred at the time it was manufactured in China such that Fred’s involvement with the product extended to the time of its manufacture. These inconclusive inferences which the purchaser might draw from the “Made in China” label do not significantly diminish the meaning which can be ascribed independently to the label, “Distributed by Fred’s.” Therefore, that label, “Distributed by Fred’s,” will be our primary focus for the consideration of whether Fred’s labeled the lamp as its own.

From a basic understanding within the context of the sale of a product, the label, “Distributed by Fred’s,” means that Fred’s delivered or dispensed the product in commerce. The purchaser at Fred’s would understand that Fred’s is the retail seller of the product and also the owner of the lamp at the time of sale. In that sense, the label confirms what the purchaser would know about any product for sale at Fred’s with or without a label. Nevertheless, Fred’s did label the product, the critical act which is the subject of Section 2800.53(l)(a), and the label confirms that the product [isis Fred’s “own” product since it is from Fred’s ownership that its distribution power is derived. From this standpoint, Fred’s labeled the product as its own.

When we further consider Fred’s sale of the lamp to a customer in its store, it is not unreasonable that a purchaser might conclude that Fred’s is only the retail seller/distributer of the product and not its manufacturer. With that understanding, similar to the perception of a large retailer like Sears, the label, “Distributed by Fred’s,” is not unlike a label simply designating or branding the lamp as “Fred’s.” The label suggests a direct connection of the product with Fred’s, but the purchaser generally considers Fred’s not the actual manufacturer of its labeled product.

A final matter which aids in the measure of Fred’s label is the fact that the lamp in question has no other party’s label. For example, the labeling of a lamp, “Manufactured by General Electric. Distributed by Fred’s,” might make a difference in the answer to the question of whether Fred’s had labeled such lamp as its own. Without any other party listed in the labeling of this lamp, however, the purchaser can consider this as a Fred’s lamp and not as a totally unbranded lamp.

Our conclusion that Fred’s labeled the allegedly defective lamp “as his own” comes from the clear language of Section 2800.53(l)(a) and from the actual language of Fred’s label. Moreover, this conclusion conforms to the purpose of the law as shown by the jurisprudential development of our products liability law leading to the LPLA. The LPLA holds the obviously culpable party, the manufacturer, at fault. The labeler/non-manufacturer of 116the product might have no connection whatsoever with the design and manufacture of the defective product; yet the legislature also chose to hold such party additionally at fault. With that legislative choice, most non-manufacturing labelers under the statute’s scrutiny are distributors of the product at some point along the distribution chain. The fact that the label acknowledges “distribution” does not diminish the import of the labeler’s expressed connection with the product upon which the liability of Section 2800.53(l)(a) arises.

The purpose of such rule aimed at the product’s labeler was first recognized in the ruling in Penn, supra, which borrowed from the reasoning of the Restatement of Torts. The official comment (d) of the Restatement, which was in the Restatement at the time of the passage of the LPLA, best expresses the purpose for holding the labeler at fault. The purpose of the rule considers the perspective of the purchaser and his reliance placed upon the labeler of the product in many situations where the identity of the product’s manufacturer is unclear in the sale of the product. The label communicates to the purchaser that the product “appears to have been made particularly for the actor [label-er].” Rest.2d Torts § 400 (1965), Official Comment (d). Specifically addressing a product labeled as distributed by a party, the Restatement comment provides that such label is not sufficient to change the view that the product has been “put out” as the labeler’s own product. “The casual reader of a label is likely to rely upon the featured name, trade name, or trademark, and overlook the qualification of the description of the source.” Id. The same operative phrase, “as his own,” of |17the Restatement was chosen for the LPLA, and our view of the Fred’s label as falling within the purview of Section 2800.53(l)(a) is in harmony with this underlying policy.

Conclusion

Since we find that the evidence presented for the exception of prescription establishes the liability for Fred’s for this products liability claim, Allstate’s timely suit against Fred’s interrupted prescription for its additional claim against Colony. Accordingly, the trial court’s grant of the exception of prescription is reversed and the case remanded. Costs of appeal are assessed to appellee.

REVERSED AND REMANDED.

PEATROSS, J., dissents with written reasons.

PEATROSS, J.,

dissents.

hi respectfully disagree with the majority’s opinion because I do not find Fred’s to be a manufacturer as defined in La. R.S. 9:2800.53(l)(a). I instead agree with the federal district court’s reasoning in Shapiro v. Wal-Mart Stores, Inc., 1994 WL 577346 (E.D.La.1994), that “[t]he phrase ‘labels a product as his own’ in La. R.S. 9:2800.53(l)(a) is defined by the remainder of that subsection which provides, [’]or who otherwise holds himself out to be the manufacturer of the product!.’] The statute therefore refers to a label creating the appearance that the named entity manufactured the product.”

Under this construction of the statute, I do not find the wording in Fred’s label, “Distributed by Fred’s,” to suggest that Fred’s is labeling the product as its own, i.e., holding itself out as the manufacturer. To the contrary, Fred’s label clearly defines and limits its role as the distributor of the product and nothing more.

For the forgoing reasons, I respectfully dissent.

      . Montgomery v. Breaux, 297 So.2d 185 (La.1974); Reed v. Abney, 04-1928 (La.App. 1st Cir.2/10/06), 928 So.2d 585. (“all that must be considered in the peremptory exception of prescription is whether there is sufficient evidence to show that the alleged time period has run.") On the trial of the prescription exception pleaded at or prior to the trial of the case, evidence may be introduced to support or controvert any of the objections pleaded, when the grounds thereof do not appear from the petition. La. C.C.P. art. 931. In the absence of evidence, the objection of prescription must be based upon the facts alleged in the petition, and all allegations thereof are accepted as true. Louisiana Employers-Managed Ins. Co. v. Litchfield, 01-0123 (La.App. 1st Cir. 12/28/01), 805 So.2d 386.

      . Black states: A canon of construction that when a general word or phrase follows a list of specifics, the general word or phrase will be interpreted to include only items of the same type as those listed. For example, in the phrase horses, cattle, sheep, pigs, goats, or any other farm animal, the general language or any other farm animal — despite its seeming breadth — would probably be held to include only four-legged, hoofed mammals typically found on farms, and thus would exclude chickens. Black's Law Dictionary (8th ed.2004).

      . La. R.S. 1:9 states: Unless it is otherwise clearly indicated by the context, whenever the term "or" is used in the Revised Statutes, it is used in the disjunctive and does not mean "and/or”.

      . As shown by die additional subparts of Section 2800.53(1) which address fault of other non-manufacturers, a seller may "exercise control over” or influence upon the design and quality of the product or act through an affiliated foreign manufacturer for the product's importation. La. R.S. 9:2800.53(1 )(b) and (d).


author: WILLIAMS, J.

text:
    STATE of Louisiana, Appellee, v. Mark Wade ERVIN, Appellant.
    No. 45,068-KA.
    Court of Appeal of Louisiana, Second Circuit.
    March 17, 2010.
    Edward K. Bauman, Lake Charles, Francis E. Mouton, III, Alex Rubenstein, for Appellant.
    Mark Wade Ervin, Pro Se.
    Charles R. Scott, II, District Attorney, Jason T. Brown, Suzanne M. Owen, Assistant District Attorney, for Appellee.
    Before WILLIAMS, CARAWAY and LOLLEY, JJ.
   WILLIAMS, J.

|,The defendant, Mark Ervin, was charged by bill of information with possession with intent to distribute cocaine, a Schedule II controlled dangerous substance, a violation of LSA-R.S. 40:967(A)(1). Pursuant to a plea agreement, the defendant pled guilty as charged in return for a stipulated sentence of 28 years at hard labor and the state agreed not to file an habitual offender bill. As part of the same plea agreement, the defendant also pled guilty to a second count of possession with intent to distribute cocaine under a separate docket number, with a concurrent sentence of 28 years at hard labor. After defendant waived all applicable delays, the district court immediately sentenced defendant to serve two terms of 28 years’ imprisonment at hard labor, with the first 2 years of each sentence to be served without the benefit of parole, probation, or suspension of sentence. Additionally, both sentences were ordered to be served concurrently to each other and to any other sentence the defendant was obligated to serve. The defendant’s pro se motion to reconsider sentence was denied and this appeal followed. We note that because defendant’s guilty plea to the second count arose under district court docket number 258,481, which was not made a subject of this appeal, this court’s disposition of the present appeal has no bearing on the conviction or sentence imposed therein.

DISCUSSION

The defendant’s appellate counsel has filed a motion to withdraw, together with an Anders brief, alleging that there are no non-frivolous issues to raise on appeal. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); State v. Jyles, 96-2669 (La.12/12/97), 704 So.2d 241; State v. Mouton, 95-0981 (La.4/28/95), 653 So.2d 1176; and State v. Benjamin, 573 So.2d 528 (La.App. 4th Cir.1990). The brief outlines the procedural history of the case and the plea agreement under which the defendant’s guilty plea was entered, including the agreement regarding his sentence. Defense counsel states that he has mailed copies of the motion to withdraw and his brief to the defendant, in accordance with Anders, Jyles, Mouton, and Benjamin, supra.

LSA-C.Cr.P. art. 881.2(A)(2) provides that a defendant cannot appeal or seek review of a sentence imposed in conformity with a plea agreement which was set forth in the record at the time of the plea. Here, the record shows that defendant was properly advised of his Boykin rights before he pled guilty and that the 28-year hard labor sentence was imposed in conformity with the plea agreement, which was set forth in the record. Thus, the appellate counsel has shown that defendant cannot appeal the sentence imposed and that no non-frivolous errors can be found after a conscientious review of the record.

We have examined the record for error patent and found none.

CONCLUSION

For the foregoing reasons, the appellate counsel’s motion to withdraw is hereby granted, and the defendant’s conviction and sentence are affirmed.

MOTION TO WITHDRAW GRANTED; CONVICTION AND SENTENCE AFFIRMED.


author: PER CURIAM.

text:
    STATE of Louisiana, Appellee, v. Raffaelous Jechania WHITE, Appellant.
    No. 45,416-KA.
    Court of Appeal of Louisiana, Second Circuit.
    March 18, 2010.

      Louisiana Appellate Project By Carey J. Ellis, III, for Appellant.
    Charles Rex Scott, II, District Attorney, Jason Trevor Brown, Suzanne Morelock Owen, Catherine Estopinal, Assistant District Attorneys, for Appellee.
    Before STEWART, CARAWAY and DREW, JJ.
   PER CURIAM.

This appeal arises from the First Judicial District Court, Parish of Caddo. We direct this motion to the attention of the Honorable John Joyce, judge pro tempore presiding, and the Honorable Craig Mar-cotte.

The defendant has filed a pro se “Motion and Order; Motion to Stay Direct Appeal and Supplement.”

An error patent review by this court reveals that the trial court has failed to rule on the defendant’s pro se motions for new trial. This matter is therefore assigned for summary disposition, without oral argument, under the authority of U.R.C.A. Rule 2-11.3.

The record reflects that, following the trial court’s verdict on November 19, 2008, the defendant filed timely pro se motions for new trial on January 8, 2009, and February 5, 2009. Neither the minutes, nor transcript of the habitual offender proceedings, indicate that the district judge thereafter ruled on the pro se motions.

The parties have now responded to a rule to show cause issued by this court on February 17, 2010, and have conceded that the defendant’s sentence should be vacated and remanded to the district court for resolution of the pending motions for new trial.

The sentence imposed is hereby set aside and vacated, and the matter is remanded to the trial court for further proceedings. The appellant’s right to appeal any adverse rulings or any sentence subsequently imposed is hereby reserved. State v. Jackson, 614 So.2d 783 (La.App. 2d Cir.1993). The defendant’s pro se “Motion and Order; Motion to Stay Direct Appeal and Supplement” is thus premature and is dismissed, without prejudice.


author: MARION F. EDWARDS, Judge. WICKER, J.

text:
    Pamela Marinovich SHORT v. David Allen SHORT.
    Nos. 09-CA-639, 09-CA-640, 09-C-416.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 23, 2010.
    Rehearing Denied April 14, 2010.

      Rachel C. Marinovich, Attorney at Law, New Orleans, Louisiana, for Plaintiff/Ap-pellee.
    Bennett Wolff, Wolff & Wolff, Metairie, Louisiana, for Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, FREDERICKA HOMBERG WICKER, and JUDE G. GRAVOIS.
   MARION F. EDWARDS, Judge.

lijThis protracted domestic matter involves two appeals, an answer to an appeal, and an application for supervisory writs. All matters have been consolidated for consideration in this opinion.

Pamela and David Short were married on September 7, 1997. Three children were born of the marriage. On February 1, 2006, Pamela Short filed a petition for separation and injunctive relief in which she asserted the parties were married by covenant marriage and that David Short was guilty of cruel treatment of such a nature as to render their living together insupportable in breach of the covenant marriage contract.

Mr. Short filed exceptions of no cause of action and prematurity, arguing that the requirements were not met for contracting a covenant marriage and, therefore, a petition for separation is not permitted under the law. Mr. Short argues that there is no documentation supporting the allegation that the parties entered into a covenant marriage or, in the alternative, that they obtained counseling prior to the filing of the petition as required by La. R.S. 9:307(B). Both exceptions were [^denied by the trial court after a hearing and recommendation by the hearing officer. The trial court set child support at $1,800 per month.

In a separate action, Mr. Short filed a petition for divorce in accordance with La. C.C. art. 102 on May 19, 2006. In that petition, he denied Ms. Short’s claim that a covenant marriage was contracted by the parties. Ms. Short filed an exception of no cause of action, arguing that the parties have a covenant marriage and that Mr. Short’s exceptions to her petition for separation in the prior action were denied. The two matters were consolidated on July 13, 2006.

On December 18, 2006, David Short filed a second petition for divorce asserting the parties did not enter into a covenant marriage and asserting that Ms. Short was engaging in an adulterous relationship. In the alternative, Mr. Short prays for a divorce pursuant to La. R.S. 9:307(A)(1) if it is determined by the court that a covenant marriage exists between the parties.

Ms. Short filed exceptions of no cause of action and vagueness to that petition citing the two actions already pending. The trial court denied both exceptions and ordered Ms. Short to answer the petition for divorce within fifteen days. Ms. Short complied with that order, and the matter was joined.

After that, the parties conducted lengthy and acrimonious proceedings involving support, visitation, discovery, and property distribution issues, the details of which are not pertinent to this discussion.

On March 18, 2008, several matters were taken up and decided by the trial court. In a judgment rendered in open court on that day, but signed on July 7, 2008, the trial court found that the parties did not enter into a covenant marriage. The amount of child support was increased to $2,117.82 per month. The court also found that Mr. Short was responsible for 94 percent of the children’s tuition costs in accordance with the provisions of La. R.S. 9:315.6(1). However, based on the 14failure of Ms. Short to notify Mr. Short of the enrollment of the children in Kehoe-France school on the North Shore in advance, the obligation for the children’s tu-itions and other expenses were limited to Mr. Short’s proportionate share of the tuition of St. Christopher School in Metairie for the 2007-08 school year. Ms. Short was found in contempt for failing to notify Mr. Short that she moved to the North Shore and enrolled the children in a new school, but sanctions were not imposed. Mr. Short was not found in contempt for alienation of community funds. Further, the parties were ordered to consult with a professional to help develop co-parenting and communication skills.

Ms. Short filed a motion for new trial on the issue of the validity of the covenant marriage but that motion was denied, and no appeal was taken from that ruling.

Ultimately, on March 27, 2008, the trial court rendered a judgment of divorce pursuant to La. C.C. art. 103(2) based on testimony from Ms. Short that, in August 2007, she and her three children had moved in with Randy Menendez with whom she has a sexual relationship. No appeal was taken from that judgment. After the judgment of divorce, the parties continued the proceedings as to child support and visitation issues and discovery as to expenditure of community funds.

On April 17, 2008, Ms. Short filed a “Rule for Contempt to Accumulate Arrears, for Income Assignment Order, and to Allocate Tax Dependency Exemptions.” Ms. Short asserts that Mr. Short is in arrears on his obligations as to child support and the payment of his proportionate share of tuition expenses as ordered by the court. Mr. Short filed an exception of vagueness to that motion.

On May 7, 2008, Mr. Short filed a “Rule for Contempt, Attorney’s Fees and Costs and to Decrease Child Support,” alleging that the Ms. Short failed to advise him of their child’s First Communion activities in violation of the stipulated | r,agreement between the parties to co-parent the children. Further, Mr. Short asserts that Ms. Short leased a home once owned by the community, but, by agreement of the parties, was transferred to the sole ownership of Ms. Short. Mr. Short alleges that income constitutes a change in circumstance sufficient to support a reduction in child support. Ms. Short filed exceptions of no cause of action, vagueness and prematurity in response to that motion, in which she also asked for sanctions.

On July 7, 2008, the trial court ruled that Ms. Short was entitled to interim spousal support from April 15, 2006 until the date the divorce decree was rendered. However, the trial court did not set an amount due for interim spousal support. Mr. Short filed an application for supervisory writs in this Court seeking review of that judgment. We denied the writ application on August 15, 2008.

Mr. Short filed a motion for partial new trial on the issue of private school expenses. That issue was heard and decided on August 4, 2008. The trial court granted that motion in part and altered Mr. Short’s obligation to exclude the youngest child, who was not yet in Kindergarten. All other motions for new trial were denied. Mr. Short moved for and was granted an appeal from that judgment.

The proceedings continued in the trial court and, on January 6, 2009, the trial court rendered a judgment ordering Mr. Short to pay $2,540 per month in interim spousal support from April 15, 2006 through August 2007 and, thereafter, $1,270 per month from September 1, 2007 through March 27, 2008 for a total of $50,800. In that same judgment, the amount due was made executory. Also in that judgment, the trial court made amounts of $5,713.32 in tuition for the school year 2007-08 and $6,288.60 for 2008-09 due and executory. Mr. Short moved for a new trial on that judgment.

IfiOn February 19, 2009, Ms. Short filed for a Qualified Domestic Relations Order (“QDRO”) to get funds from Mr. Short’s retirement plan pursuant to the January 6, 2008 judgment. The trial court signed the order for the QDRO on February 19, 2009. On February 27, 2009, Mr. Short filed an ex parte motion to rescind or stay the execution of the QDRO. On May 20, 2009, the trial court heard several matters including the ex paHe motion to rescind the QDRO and the motion for new trial on the order to pay interim spousal support and making that amount executory. Both motions were denied in a judgment signed on May 29, 2009.

Mr. Short filed an application for supervisory writs from that ruling in this Court on June 4, 2009, seeking a stay order to prevent Ms. Short from using the QDRO to take funds out of Mr. Short’s retirement funds. This Court ordered a stay on the execution of the QDRO and, subsequently, consolidated the writ application with the appeal in this matter for a full consideration of the issues. Mr. Short has also filed an appeal from the May 29, 2009 judgment.

Thus, Mr. Short has filed appeals from the November 3, 2008 judgment of the trial court ordering him to pay his pro-rata share of tuition for the two older children capped at the costs for St. Christopher School, and the May 29, 2009 judgment denying his motion to rescind the QDRO and denying his motion for new trial on the order setting interim spousal support and making that amount executory. Mr. Short has also filed an application for writs, which also seeks review of the May 29, 2009 judgment.

Ms. Short has filed no appeals in this Court. However, she has answered the appeal challenging the ruling on March 18, 2008 finding the parties did not enter into a valid covenant marriage pursuant to La. R.S. 9:272 et seq. and limiting Mr. Short’s obligation for tuition to the tuition paid in prior years due to Ms. Short’s 17failure to consult with or notify him of the enrollment of the children in Kehoe-France school on the North Shore. Ms. Short further challenges the November 3, 2008 judgment eliminating the father’s obligation to pay tuition and related expenses for the youngest child.

Additionally, Mr. Short has filed exceptions of no cause of action and prescription to Ms. Short’s request for interim spousal support.

LAW AND ANALYSIS

The only two judgments on appeal are the November 3, 2008 decision regarding the tuition obligation due and the May 29, 2009 decision denying Mr. Short’s motion to rescind the QDRO and upholding the interim spousal support. Those appeals are consolidated with the writ application that also presents issues relating to the QDRO at issue.

COVENANT MARRIAGE

Given that restriction on our jurisdiction and the focus of our review, we find that any issues relating to the validity of the covenant marriage presented by Ms. Short’s answer to the appeal are not before this Court and will not be considered in this opinion. The divorce judgment was rendered by the trial court on March 27, 2008 pursuant to La. C.C. art. 103(2) based on Ms. Short’s adultery. No appeal was taken from that judgment. Further, no appeal was taken from the March 18, 2008 judgment finding that there was no valid covenant marriage. Therefore, that ruling is final, and the issue of whether the parties contracted a valid covenant marriage is not before this Court and cannot be considered. Accordingly, we find Mr. Short’s exception to prescription on this issue moot.

INTERIM SPOUSAL SUPPORT

Regarding the interim spousal support, Mr. Short argues that Ms. Short is not entitled to interim spousal support because the parties did not have a covenant | ^marriage. In the alternative, Mr. Short argues that the amount set by the trial court is excessive in view of the facts that Ms. Short is cohabitating with her boyfriend, and Mr. Short was denied the opportunity to present any evidence before the trial court set the amount of the award. Further, Mr. Short argues the trial court erred in making the amount of interim spousal support executory in the same judgment setting the award. Finally, Mr. Short argues the trial court erred in signing the amended QDRO without conducting a contradictory hearing.

In support of the no cause of action on this issue, Mr. Short argues that Ms. Short only made a claim for interim spousal support in her original petition for separation. She made no other judicial demands in either of the divorce proceedings filed by Mr. Short, including the petition for divorce based on adultery, which was originally granted. It is also argued that the trial court determined that there was no valid covenant marriage existing between the parties and that ruling is now final. In conclusion, Mr. Short argues that Ms. Short has not stated a cause of action for interim spousal support and has filed an exception of no cause of action in this Court.

In response, Ms. Short argues that the marriage was a valid covenant marriage, and she is entitled to interim spousal support from the date of the filing of that petition.

While we agree that the issue of covenant marriage has been settled and is final, we do not agree that Ms. Short has no cause of action for interim spousal support. We find Ms. Short’s demand for interim spousal support in her original action for separation, which was consolidated with the divorce action, and her rule for support filed in the consolidated record on August 21, 2007, stated a valid cause of action and put the matter at issue before the trial court. Accordingly, we | ¡¡deny Mr. Short’s exception of no cause of action for interim spousal support filed in this Court.

In a proceeding for divorce, the court may award an interim periodic support allowance to a spouse based on the needs of that spouse, the ability of the other spouse to pay, and the standard of living of the spouses during the marriage. A spouse’s right to claim interim periodic support is grounded in the statutorily imposed duty on spouses to support each other during marriage and, thus, provides for the spouse who does not have sufficient income for his or her maintenance during the period of separation. As this Court explained:

Interim spousal support is designed to assist the claimant in sustaining the same style or standard of living that he or she enjoyed while residing with the other spouse, pending the litigation of the divorce.... The purpose of interim spousal support is to maintain the status quo without unnecessary economic dislocation until a final determination of support can be made and until a period of time for adjustment elapses that does not exceed, as a general rule, 180 days after the judgment of divorce.... The court may award an interim spousal support allowance to a spouse based on the needs of that spouse, the ability of the other spouse to pay, and the standard of living of the spouses during the marriage. ...

The spouse seeking interim spousal support bears the burden of proving his or her entitlement to such. We recognize the vast discretion afforded a trial judge in such an award; however, upon review of the record in this matter, we find the trial court abused its discretion in the award of interim spousal support.

The record shows there was a hearing on July 7, 2008 at which several issues, including interim spousal support were taken up. At that hearing, both Mr. and Ms. Short testified. The testimony shows that Mr. Short moved out of the family home in April 2006, and Ms. Short moved out in June 2006. Documents |, introduced into evidence at that time include bank statements and bills. Also at that hearing, Ms. Short introduced a copy of an account of income and expenses given to the hearing officer for consideration prior to the hearing in the trial court. It appears from the record that no recommendation for interim was made by the hearing officer at that time. At the hearing in the trial court, Ms. Short stipulated the document correctly represents her income and expenses. The document shows that her income is $2,300 per month and her expenses are $4,675. Although it is not clear from the documents, Ms. Short stipulated the time frame on these figures was about September or October of 2007. Mr. Short objected to an award of interim spousal support. Ultimately, the trial court ruled that Ms. Short was entitled to interim spousal support but did not set an amount. As previously set forth in this opinion, that ruling was reviewed by this Court on a writ application filed by Mr. Short; however, because no amount was set, we could not make a finding on whether the trial court had abused its discretion. We denied the application for writs pointing out that Mr. Short had adequate remedy on appeal.

Subsequently, the matter went before a hearing officer on October 10, 2008. The hearing officer considered the financial documents and testimony of the parties and recommended that interim spousal support be set at $2,540 per month from April 15, 2006 to September 1, 2007, and $1,090 from September 1, 2007 to March 27, 2008. The reduction in payments resulted from a credit awarded to Mr. Short for mortgage payments made on the community home. Documents supporting the financial award, as well as the hearing officer’s calculations, are contained in the record.

Both parties objected to the recommendation. Ms. Short filed an objection to recommendations, arguing that interim spousal support should be maintained at $2,540 throughout the entire time, and it should not be reduced. Mr. Short argues In that Ms. Short is not entitled to any interim support after August, 2008 when she moved in with her boyfriend.

On October 29, 2008, the trial court took up several matters, including the recommendation on the issue of interim spousal support. After the hearing, the trial court ordered Mr. Short to pay interim spousal support to his ex-wife in the amount of $2,540 per month from August 15, 2006 through July 31, 2007 and, thereafter, the amount of $1,270 per month from August 1, 2007 through March 27, 2008. In the same judgment, the trial court made the total amount due executory.

The trial court is vested with much discretion in determining an award of interim spousal support, and such a determination ■will not be disturbed absent a clear abuse of discretion. However, the award must be made after a consideration of the factors set forth in La. C.C. art. 113. One of those factors is the ability of the other party to pay. Mr. Short argues, and we agree, that the trial court failed to hold an adequate hearing before setting an amount for interim spousal support. Both parties should have been allowed to enter evidence into the record in support of their claims and objections to the hearing officer’s recommendation. An interim spousal support allowance to a spouse is based on the needs of that spouse, the ability of the other spouse to pay, and the standard of living of the spouses during the marriage. To make factual findings on those factors, a full evidentiary hearing must be conducted.

We do not agree with Mr. Short’s argument that Ms. Short is not entitled to interim spousal support as of August 2008. La. C.C. art. 115 provides that the obligation of spousal support is extinguished upon a judicial determination that the obli-gee has cohabited with another person of either sex in the manner of married 112persons. On March 18, 2008, the trial court made a judicial determination sufficient to grant a divorce to Mr. Short on the basis that Ms. Short and Mr. Menen-dez had been cohabitating in an adulterous relationship. At the hearing on the divorce petition, Ms. Short testified that she and her three children have lived with Randy Menendez in his home in Covington since August 2007. She stated that she has a sexual relationship with Mr. Menen-dez and sleeps in the same bed.

We find the judicial determination of the adulterous cohabitation sufficient to extinguish the obligation of interim spousal support was made in the March 2008 divorce judgment. Therefore, we find the trial court correctly ended interim spousal support at that time in accordance with La. C.C. art. 115.

For these reasons, vacate the award on interim spousal support and remand the matter for a full evidentiary hearing on Ms. Short’s needs and Mr. Short’s ability to pay for the period of separation April 15, 2006 to the extinguishment of the obligation on March 27, 2008.

TUITION

The second judgment that is before us for review is a judgment of the trial court ordering Mr. Short to pay a proportionate share of tuition for the two oldest children, restricted to the amount of tuition required for St. Christopher School.

At the hearing on the matter of tuition, Ms. Short testified that she moved to the North Shore in August 2007 and enrolled her children in Kehoe-France. She made that decision because she was now a single mother and could no longer home school her children. Kehoe-France provided a good educational choice for her three children that included advanced academics, swimming lessons, and horse-back riding. On cross-examination, Ms. Short admitted she lives with Mr. Menendez, the man named in the divorce petition as her paramour. She further admitted that she did not inform Mr. Short of her intention to enroll the children in 113Kehoe-France and that she was aware of the co-parenting agreement she signed. The cost per year for the three children is about $15,000 to $18,000.

Mr. Short also testified at the hearing. He stated that he has no say in the academic or medical decisions concerning his children. He testified that he investigated St. Christopher School, which is located near the River Ridge home in which his children were living with their mother. In August 2007, he thought Ms. Short and his children were still living there. He admitted that there was no opening at St. Christopher at the time. However, he stated that he was going to investigate other options. At the time, Ms. Short was home schooling the children, and he was not aware of her decision to stop that practice. He knew nothing about Ms. Short’s decision to discontinue the home schooling and enroll the children in Kehoe-France on the North Shore. Mr. Short objected to this decision and stated that the tuition is beyond his means.

The record shows that Ms. Short filed a rule to increase child support on August 21, 2007 in which she uses the tuition as a ground for the increase. However, it is also clear that the children were already enrolled in the school, and there is nothing to dispute the testimony that Mr. Short was not consulted before that and knew nothing of the intention to enroll the children in the expensive private school.

A trial court may award child support for expenses of tuition, registration, books, and supply fees required for attending a special or private elementary or secondary school to meet the needs of the child. We have considered the change in this statute recently in State Dep’t of Social Services ex rel. K.L. v. Lesky. In that case we explained:

114This statute was amended in 2001, removing the language requiring that a “particular educational need” to attend the special or private school be shown. The statute, as amended, is less restrictive to encompass generally “the needs of the child.” This broader intent is illustrated by the comments to LSA-R.S. 9:315.6, which provide in pertinent part: “The needs of the child met by the special or private school need not be particular educational needs, but may include such needs of the child as the need for stability or continuity in the child’s educational program.” Comments to LSA-R.S. 9:315.6....

A trial court’s determination of whether to include private school tuition in a basic child support obligation will not be disturbed absent an abuse of discretion. While we acknowledge the trial court’s right to award tuition expenses, we believe that decision must be based on consideration of the best interest of the children.

At the end of the hearing, the trial court attempted a compromise between two parties who either cannot or will not communicate even when it relates to the well-being of their children. While we commend the trial judge’s patience and endurance, and fully understand his desire to find some hope of settlement of the numerous issues still outstanding between these parties, we must find an abuse of discretion in the ruling ordering Mr. Short to pay his proportionate share of tuition at Kehoe-France using the tuition at St. Christopher School as a base. Accordingly, we vacate that judgment and remand the matter to the trial court for a finding on tuition that is consistent with the above-cited law.

QUALIFIED DOMESTIC RELATIONS ORDER

As stated in the beginning of this opinion, there is an application for supervisory writs filed by Ms. Short seeking to rescind the execution of the QDRO. Because we have vacated the judgments upon which the QDRO was based, we hereby grant that writ and rescind the QDRO.

In conclusion, we reverse that portion of the May 29, 2009 judgment of the trial court insofar as it awards interim spousal support and makes that amount | ^executory. We remand the matter for a hearing on interim spousal support in accordance with this opinion. We also reverse that portion of the judgment that denied the motion to rescind the QDRO. In all other respects, the judgment is affirmed.

We reverse the trial court’s judgment of November 3, 2008 denying the new trial and ordering Mr. Short to pay his pro-rata portion of tuition for the two oldest children, capped at the cost of tuition at St. Christopher School. We remand this matter for a hearing on the school tuition issue in accordance with applicable law as set forth in this opinion.

Finally, we grant Mr. Short’s writ and rescind the QDRO.

JUDGMENT OF MAY 29, 2009 REVERSED IN PART; AFFIRMED IN PART AND REMANDED; JUDGMENT OF NOVEMBER 3, 2008 REVERSED AND REMANDED; REMANDED; WRIT GRANTED; EXCEPTIONS OF NO CAUSE OF ACTION AND PRESCRIPTIONS DENIED.

WICKER, J. Concurs with Reasons.

WICKER, J.

Concurs with Reasons.

LI agree with the result reached by the majority. However, I write separately to express my views on two matters.

First, the purpose of the enabling hearing officer statute, La. R.S. 46:236.5(0, was completely defeated here. The Legislature adopted La. R.S. 46:236.5, which authorizes the use of hearing officers in domestic cases. The protracted litigation in this case demonstrates the failure to achieve the contemplated expedited review of the enabling statute authorizing hearing officers. Mindful of the expedited-review directive, the 24th Judicial District Court has adopted rules to ensure statutory compliance. Title IV, Rule 23.0(E)(4). Prompt settings of conferences are required. And, a short delay is imposed for objecting to a hearing officer’s recommendation or order.

Furthermore, Title IV, Rule 24.1(B)(3)(c) of the District Court Rules for the 24th Judicial District Court discourages continuances. “Hearing officer conferences shall be continued only for good cause shown.” Title IV, Rule 28.2(D)(1). “Every attempt shall be made to conduct hearing officer conferences on the date and time originally set.” Id.

|2In this case, there were a significant number of rules that were continued without date. Title IV, Rule 28.2(D)(3) of the District Court Rules for the 24th Judicial District Court mandates that hearing officer conferences “shall not be continued without date unless the case is being dismissed, except for good cause.” Generally, once a motion to continue is granted, the hearing officer “shall notify the district court of the continuance and shall reset the matter on the dockets of both the hearing officer and the district court.” Title IV, Rule 28.2(D)(4). Title IV, Rule 28.4(B) provides that “[e]very attempt shall be made to hold hearing officer conferences and district court and commissioner hearings and trials on the dates originally set.” “All attorneys shall bring their calendars to the hearing officer conference to facilitate in scheduling additional conferences or rule dates.” Title IV, Rule 24.1(B)(3)(c).

The record in this case reflects that there were numerous continuances, often without date in these and related matters. These proceedings began in 2006 and spanned the three-year period from 2006 to 2009. The long-drawn-out litigation in this case represents the very type of litigation the statute and the District Court Rules sought to prevent.

Second, this case illustrates the problems that arise when the trial court does not hold an evidentiary hearing.

R.S. 46:236.5(C)(6) provides: “Any party who disagrees with a judgment or ruling of a hearing officer ... may file a written objection to the findings of fact or law of the hearing officer within the time and manner established by court rule.” La. R.S. 46:236.5(0(6) provides that “[t]he objection shall be heard by the judge of the district court to whom the case is assigned.” “Upon filing of the objection, the court shall schedule a contradictory hearing where the judge shall accept, reject, or modify in whole or in part the findings of the hearing officer.” Id. “If the judge in | cjhis discretion determines that additional information is needed, he may receive evidence at the hearing or remand the proceeding to the hearing officer.” Id.

La. Const, art. 1, § 2 provides: “No person shall be deprived of life, liberty, or property, except by due process of law.” The majority correctly recognizes that “a full evidentiary hearing must be conducted” in order that the trial judge make the necessary factual findings required by La. C.C. art. 113 for determining interim spousal support. Such an evidentiary hearing comports with due process.

The hearing officer is not required to take testimony or to make a record of the hearing officer conference. Such matters are discretionary. R.S. 46:236.5(C)(4)(f) and (i). The trial judge should be cognizant of the need, as in this case, for an evidentiary hearing in matters requiring an evidentiary hearing in order to satisfy due process concerns.

      . Short v. Short, 09-CA-639, 09-CA-640, 09-C-416.

      . That ruling was not reduced to written judgment and signed until July 28, 2008.

      . Short v. Short, 08-C-637.

      . That ruling was reduced to writing and signed on November 3, 2008.

      .Order of this Court on June 4, 2009 in Short v. Short, 09-C-416.

      . La. C.C. arts. Ill, 113.

      . La. C.C. art. 98; Hall v. Hall, 08-706 (La.App. 5 Cir. 2/10/09), 4 So.3d 254, writ denied, 09-0812 (La.5/29/09), 9 So.3d 166.

      . Hall v. Hall, 4 So.3d at 257 (citations omitted).

      . Saacks v. Saacks, 05-365 (La.App. 5 Cir. 9/26/06), 942 So.2d 1130.

      . Hall v. Hall, supra.

      . La. R.S. 9:315.6(1).

      . 07-599 (La.App. 5 Cir. 12/27/07), 975 So.2d 657.

      . State Dep’t of Social Services, ex rel. K.L. v. Lesley, 975 So.2d at 659 (citations omitted).

      . The purpose of the enabling hearing officer statute is an expeditious hearing. R.S. 46:236.5(C).

      . “The domestic hearing officer position is created to facilitate an expedited process, for the handling of domestic matters including divorce and all issues ancillary to a divorce proceeding pursuant to La. R.S. 46:236.5.’’

      . Title IV, Rule 24.0(A)(3)(a) requires that the "the clerk of court shall endeavor to set a domestic hearing officer conference date before the hearing officer in not less than thirty (30) nor more than thirty-five (35) days of the date of filing, unless an earlier, or later, date is required by law.”

      . Title IV, Rule 24.0(3)(e) provides for a three-day period: "A party shall have three (3) days from the receipt of the recommendation or order of the domestic hearing officer to file a written objection to said recommendation or order.” Id.

      . See infra note 4.

      . Tide IV, Rule 24.1(B)(10)(c) similarly provides:
      The objection shall be heard by the district judge or domestic commissioner to whom the case is allotted as provided by these rules. The matter shall be heard by the district judge or domestic commissioner as a contradictory hearing wherein the judge or commissioner shall accept, reject, or modify in whole or in part the findings and recommendations of the hearing officer. The district judge or domestic commissioner may receive evidence at the hearing or remand the proceeding to the hearing officer, as set forth in Rule 23.

      . The statute provides as follows:
      In furtherance of and in addition to making written recommendations ... the hearing officer may do the following:
      (f) Take testimony.
      (i) Make a record of the hearings authorized by this Section.


author: SUSAN M. CHEHARDY, Judge. EDWARDS, J.,

text:
    Jennie M. ALEXANDER v. PARISH OF ST. JOHN THE BAPTIST, Pontchartrain Levee District, Cory M. Bunch, Allstate Insurance Company, Progressive Insurance Company and State Farm Mutual Automobile Insurance Company.
    No. 09-CA-840.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 23, 2010.
    Opinion Denying Rehearing May 10, 2010.

      Clarence F. Favret, III, Favret, Demar-est, Russo & Lutkewitte, New Orleans, LA, for Plaintiff/Appellant, Jennie M. Alexander.
    Richard L. Edrington, LaPlace, LA, for Defendant/Appellee, Parish of St. John The Baptist.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and FREDERICKA HOMBERG WICKER.
   SUSAN M. CHEHARDY, Judge.

|2This is a personal injury lawsuit in which the plaintiff seeks review of a summary judgment that dismissed one of the defendants. We affirm.

FACTS

On October 17, 2004, Jennie Alexander was a passenger on an ATV (all-terrain vehicle) being operated by her fiancé, Cory Bunch. They were traveling on the Mississippi River levee in LaPlace in St. John the Baptist Parish. Bunch drove the ATV up the batture side of the levee at an angle and crested the top. As the ATV began descending the other side at 35 to 45 miles per hour, it struck an above-ground pipeline. Alexander was thrown to the ground and sustained a fractured mandible, broken cheekbone, fractured teeth, and a fractured foot.

Alexander sued Bunch; the Parish of St. John the Baptist (“the Parish”), as owner of the pipeline; the Pontchartrain Levee District (“the Levee District”), as owner/custodian of the levee surface over which the pipeline ran; and various insurers.

The Parish filed a motion for summary judgment. The Parish asserted that Alexander’s injuries were caused by the negligence of the driver, Bunch, as well as |sof Alexander, because both were aware that four-wheelers were not permitted on the levee, they were traveling at an excessive speed, and prior to the accident they consumed alcohol and drugs. The Parish asserted it was not liable because it did not owe a duty to Alexander to protect her from the injuries she sustained and, even if such duty existed, the alleged breach of such duty was not the eause-in-faet of Alexander’s injuries.

In opposition to the motion, Alexander asserted there are numerous genuine issues of material fact that prevent summary judgment. She contended that the pipeline and levee configuration together create a hazardous condition that creates an unreasonable risk of harm, because the pipeline is located in a concave portion of the levee and is effectively hidden from view of anyone traveling on the crown or approaching from the batture side of the levee. Alexander asserted the presence of the pipeline in the concave portion of the levee creates a very hazardous condition, and that any alleged fault on her part was comparative negligence and does not affect causation.

In an affidavit in opposition to summary judgment, Alexander stated she was aware there was a prohibition against riding on the levee, but she also was aware that the prohibition is never enforced. She stated she observes motorized vehicles being ridden on the levee at all times and had never observed anyone being stopped by any enforcement personnel with respect to riding on the levee.

The district court granted summary judgment that included written reasons for judgment, as follows in pertinent part:

The pipeline at issue is of great utility because it is essential to the operation of the wastewater treatment plant in the Parish and is of great interest to the Parish and Parish residents. This utility clearly outweighs the | potential risk to individuals who may be recklessly and illegally riding four-wheelers.
The pipe was clearly visible from 45 feet away. This means that the pipe was readily apparent and observable to anyone on the levee and anyone exercising reasonable care would not have been harmed.
The Parish did not owe a duty to this plaintiff.... The conduct engaged in by plaintiff is one [to] which the Parish’s duty does not extend because she was not acting reasonably under the circumstances .... [I]t is evident that the pipeline had not been abandoned or neglected in any way. Finally, the likelihood of someone being under the influence of drugs and alcohol and driving a four-wheeler in such an imprudent manner in clear violation of the laws, is far less than the social, economic and moral factors considered in Oster. Hence, plaintiff does not meet the duty prong of the duty/risk test. And because plaintiff does not prove the existence of a duty, there can be no negligence.
Assuming that the Parish owed a duty to plaintiff, the Parish’s alleged negligence did not cause the plaintiffs injuries ....
Both Mr. Bunch and plaintiff testified that they were aware of the prohibition against riding a four-wheeler on the levee and that they were aware of the posted signs warning of said prohibition .... Despite this knowledge, they rode a four-wheeler on the levee, after having consumed alcohol and drugs. While driving on the bank of the levee, which is not a public road, Bunch was not entitled to presume that the road ahead of him was safe for travel, and he was charged with the duty of guarding against obstructions.... It would be safe to say that the “but for” cause of the injury was Mr. Bunch’s actions. Although there are concurrent causes of the accident, Mr. Bunch’s actions were the substantial factor in causing the accident. He was the driver, speeding and trespassing. Mr. Bunch even states in
his deposition that he believed he was responsible for the accident.... Ms. Alexander also agreed that Mr. Bunch was ■ driving too fast to brake in time to avoid the accident, and failed to see what he should have seen....
Plaintiff relies on the “configuration of the levee/pipeline” to argue her case. However, the Parish does not own the levee, only the pipeline. The levee system is part of a federal system of levees. The U.S. Army Corps of Engineers and the DOTD’s engineering experts determine what should be placed, how it should | Bbe built, and where it should be built. The Levee District issues a letter of “no objection” once the plans have been submitted to the Corps of Engineers and DODT [sic], giving the “go ahead” for the necessary project. The Parish does not decide how a levee and a pipeline should be configured together, although once built, the Parish does maintain the pipe.
[I]n the instant matter, when the magnitude and probability of injury are weighed against the burden of preventing the injury, the burden far outweighs the probability of incidents such as this one, and thus, there is no unreasonable risk. Although it is undisputed that the Parish owned the pipeline, it is understood that the Parish had no power or obligation, to affect the design, placement, or position of the pipeline. And finally, the pipeline was placed solely with the approval of both the Corps of Engineers and the Levee District.
Plaintiff has failed to establish a duty owed to her by the Parish; hence she cannot meet the evidentiary burden to prove the elements required to recover on a negligence claim, and she has failed to produce factual support sufficient to establish that she will be able to satisfy the evidentiary burden of proof at trial. Defendant has met its burden by pointing out a lack of factual support for these essential elements of the plaintiff’s case.... The court after considering the pleadings, depositions, the record, the affidavits, and the applicable law, finds there is no genuine issue of material fact.

ISSUES ON APPEAL

On appeal, Alexander asserts (1) the trial court erred in granting summary judgment by holding that plaintiff failed to establish a duty under Louisiana’s duty-risk analysis on the part of the Parish with respect to the pipeline, and (2) the court erred in finding that there were no genuine issues of material fact.

Alexander states the accident occurred because the pipeline is hidden from view by virtue of a concave condition and configuration of the levee where the pipeline was constructed by the Parish:

For some reason, the pipeline was positioned and constructed in a hidden, hollowed-out portion of the levee which creates a blind sightline and which effectively hides the pipeline from anyone approaching |fifrom the crown or either side of the levee. If the pipeline was not located in this area of the levee, the area and levee, in and of itself, would not be a hazard. If the pipeline had been constructed on a typical portion of the levee, it would have presented much less of a hazard as it would have been visible.

First, Alexander contends that as owner of the pipeline, the Parish had a duty to protect citizens of the Parish and others from hazardous conditions. Alexander argues that by constructing the pipeline in a concave portion of the levee, the Parish created a hazardous condition, failed to properly investigate and analyze the existence of the hazardous condition, failed to inspect on a regular basis to observe the hazardous condition, and failed to warn, barricade, or sign so that persons approaching the area on the crown or batture side of the levee would have sufficient advance notice of the pipeline’s presence just above the ground.

In support of this argument, Alexander cites the affidavits and reports of two professional engineers, Dr. Brian Wolshon, Ph.D., and Ralph Adams. According to Alexander’s brief, both Wolshon and Adams opined that the pipe location is dangerous because of poor visibility to persons on vehicles and that there should be markers or barricades placed to warn of the pipeline. Alexander asserts that the Parish failed to submit countervailing expert reports or affidavits to controvert the engineers’ opinions.

LAW AND ANALYSIS

A summary judgment is appropriate when there remains no genuine issue as to material fact and the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). Summary judgments are now favored in the law and the rules should be liberally applied. Carr v. Wal-Mart Stores, Inc., 00-896, p. 3 (La.App. 5 Cir. 10/31/2000), 772 So.2d 865, 866, writ denied, 00-3247 (La.1/26/01), 782 So.2d 636. The summary judgment procedure shall be construed to accomplish the ends |7of just, speedy, and inexpensive determination of allowable actions. La. C.C.P. art. 966(A)(2); Perricone v. East Jefferson General Hospital, 98-343, p. 6 (La.App. 5 Cir. 10/14/98), 721 So.2d 48, 51.

Appellate courts review summary judgments de novo, using the same criteria applied by trial courts to determine whether summary judgment is appropriate. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 26 (La.7/5/94), 639 So.2d 730, 750.

The mover bears the burden of proof; however, the mover need only to “point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim.... ” La. C.C.P. article 966 C(2). Once the mover has made a prima facie showing that the motion shall be granted, the burden shifts to the adverse party to present evidence demonstrating that material factual issues remain. Misuraca v. City of Kenner, 01-707, pp. 4-5 (La.App. 5 Cir. 11/14/01), 802 So.2d 784, 787.

A fact is “material” when its existence or nonexistence may be essential to plaintiffs cause of action under the applicable theory of recovery. Smith, 93-2512 at 27, 639 So.2d at 751. Facts are material if they potentially insure or preclude recovery, affect a litigant’s ultimate success, or determine the outcome of the legal dispute. Id.

In reviewing the record in this matter, we find we are unable to address the merits of the trial court’s ruling. The record on appeal was designated by the appellant, Alexander, but it is missing materials that are crucial to the determination of the summary judgment. Specifically, although the record contains all the pleadings filed by the parties that are relevant to the motion for summary judgment, it contains few of the exhibits and documents filed in support of and in opposition to the motion.

|8In her appellate brief Alexander asserts there are “significant and substantial material issues of fact” that preclude summary judgment. She cites a list of “disputed, controverted issues of fact,” citing various documents that were filed in the district court, but were not part of the designated record on appeal. Specifically, Alexander relies on the following documents: (1) affidavit of Dr. Brian Wolshon; (2) affidavit of Ralph Adams; (3) Plaintiffs Exhibits 11 through 23, photographs of the scene; (4) deposition of Jennie Alexander, plaintiff; (5) deposition of Monica Salins, Executive Director of the Pontchartrain Levee District; (6) deposition of Paul On-cale, Public Safety Director of the Parish; (7) deposition of Cory Bunch. None of these documents, however, are in the record on appeal.

Appellant Alexander’s designation of the record does not include the testimony and evidence on which her opposition to the motion for summary judgment relies, which is evidence that the trial court considered in making its ruling. A court of appeal cannot review attachments that are not included in appellate record. Cutitto v. Boyes, 97-63, p. 7 (La.App. 5 Cir. 5/28/97), 695 So.2d 1080, 1084.

The appellate court shall render any judgment which is just, legal, and proper upon the record on appeal. La. C.C.P. art. 2164.

A Court of Appeal is a court of record, which must limit its review to evidence in the record before it. An appellate court cannot review evidence that is not in the record on appeal and cannot receive new evidence. A written motion for summary judgment is a “pleading” under La. C.C.P. art. 852, and written documents may be attached to pleadings and made part thereof. [Citations omitted.]

Hover v. Farber, 05-613, pp. 3-4 (La.App. 5 Cir. 1/31/06), 922 So.2d 637, 638.

19This testimony and evidence are necessary for our review of the factual issues inherent in this appeal. Without them we are bound to presume that the judgment of the trial court was correct and was supported by sufficient competent evidence. See Boulet v. Foti, 539 So.2d 843, 845 (La.App. 3 Cir.1989), writ denied, 541 So.2d 841 (La.1989).

The inadequacy of an appellate record for which an appellant is responsible cannot operate to the detriment of an appellee. Willis v. Letulle, 597 So.2d 456, 475 (La.App. 1 Cir.1992). When the record does not contain an adequate transcript, narrative of facts or other satisfactory evidence, an appellate court can apply the presumption that the trial court’s judgment is correct and affirm. Id.

Therefore, a de novo review of the summary judgment is not possible, because the documents and evidence that were submitted in support of and in opposition to the Motion for Summary Judgment, and which were apparently relied on by the trial court, are not contained in the appellate record, and the fault is attributable to the appellant, who designated the record. Accordingly, the judgment must be upheld.

DECREE

For the foregoing reasons, the judgment is affirmed. Costs of this appeal are assessed against the appellant, Jennie M. Alexander.

AFFIRMED.

EDWARDS, J., concurs with reasons.

EDWARDS, J.,

concurs with reasons.

Li agree with the majority opinion that this designated record is insufficient to disturb the judgment of the trial court. As the majority opinion correctly holds, this Court cannot conduct the required de novo review of the facts presented to the trial court in order to make a determination on the merits of the summary judgment grant. Considering the record before us and the final decision of this Court, in my view, a discussion of disputed factual issues is unnecessary.

ON APPLICATION FOR REHEARING

liOn March 23, 2010, we affirmed the decision of the trial court on the basis that the designated record was insufficient to disturb the judgment of the trial court. We pointed out that the appellant had designated the record on appeal, but the record was missing crucial documents and exhibits that were required for us to analyze the merits of the appeal. Alexander v. Parish, of St. John the Baptist, 09-840, p. 9 (La.App. 5 Cir. 3/23/10), 33 So.3d 999, 1005. Accordingly, based on the record as lodged, we affirmed the judgment. Id.

The appellant has filed an application for rehearing, asking this Court to allow the filing of the materials referenced in this Court’s judgment. Attached to the rehearing application are copies of the exhibits that were missing from the record on appeal.

First, we note that an appellate court cannot review attachments that are not included in appellate record. Cutitto v. Boyes, 97-63, p. 7 (La.App. 5 Cir. 5/28/97), 695 So.2d 1080, 1084. La.C.C.P. art. 2164 states, “The appellate court shall render any judgment which is just, legal, and proper upon the record on appeal.” (Emphasis added.) Appellate courts are courts of record and may not review evidence that is not in the appellate record, or receive new evidence. Denoux v. Vessel Management Services, Inc., 2007-2143, p. 6 (La. 5/21/08), 983 So.2d 84, 88. Hence, we cannot consider documents that are attached to briefs, [2but that are not contained in the appellate record. River Parishes Financial Services, L.L.C. v. Goines, 07-641, p. 6 (La.App. 5 Cir. 2/6/08), 979 So.2d 518, 521.

The appellant states that two of the documents specifically mentioned in the opinion as missing from the record were listed in her designation of the record, although they were not included in the documents in the record as lodged in this Court. The appellant asserts that the other materials the opinion stated are missing were part of a consolidated exhibit binder submitted by the appellant with her mem-oranda filed in opposition to both defendants’ motions for summary judgment. The appellant states the exhibit binder was filed as one exhibit to be referenced in both memoranda “to avoid unnecessary, voluminous documentation being submitted to the trial court in an attempt to facilitate efficiency.” The appellant states, “Counsel for plaintiff/appellant erroneously believed ... that designation of the Parish’s motion for summary judgment and memorandum, and plaintiff/appellant’s opposition memorandum, would include all attachments including the above referenced materials.”

The appellant cites La.C.C.P. art. 2161, which prohibits dismissal of an appeal because the trial record is missing, incomplete, or in error, no matter who is responsible, or because of any other irregularity, error or defect “unless it is imputable to the appellant.” The appellant also cites La. R.S. 13:4433, which directs that no appellate court shall grant a motion to dismiss an appeal for irregularities in the record without fist giving the appellant an opportunity to cure the deficiencies.

Here, however, Art. 2161 and R.S. 13:4433 do not apply. There was no motion to dismiss the appeal, and our opinion did not dismiss the appeal. Rather, we affirmed the decision of the trial court based on the record as lodged. Further, |sas far as documents that were specifically designated, yet not included in the record lodged, it is the responsibility of the appellant to check the appellate record to be sure it is complete.

Considering the above, we find no reason to grant rehearing. Rehearing is denied.

      . The vehicle is also called a four-wheeler or an off-road vehicle ("ORV"). All three terms are used variously in the record.

      . Two of the insurers have been dismissed from the suit. Progressive Security Insurance Company was granted a summary judgment on a coverage exclusion. Allstate Insurance Company settled with the plaintiff and was dismissed.

      . The Levee District also filed a motion for summary judgment, which was denied. The Levee District sought supervisory review, but writs were denied by both this Court and the supreme court. Alexander v. Pontchartrain Levee District, 09-458 (La.App. 5 Cir. 9/1/2009), - So.3d - writ denied, 2009-2134 (La. 12/11/2009), 23 So.3d 920.