author: GENOVESE, Judge.

text:
    STATE of Louisiana v. $144,320.00 U.S. CURRENCY, Tina M. Beers, 132 Woody Land, Siler City, NC 27344.
    No. 09-954.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 3, 2010.
    J. Phil Haney, District Attorney — Sixteenth Judicial District, Waiter J. Senette, Jr. — -Assistant District Attorney, Franklin, Louisiana, for Appellant, State of Louisiana.
    Pride J. Doran, Quincy L. Cawthorne, The Doran Law Firm, Opelousas, Louisiana, for Defendants/Appellees, Tina M. Beers and Brittany Beers.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JOHN D. SAUNDERS, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

| /file State of Louisiana (the State) appeals the trial court’s finding that Tina Beers was not properly served and/or given notice of forfeiture proceedings resulting from the seizure of $144,320.00 from a vehicle operated by Tina Beers on January 10, 2009. Tina Beers and Brittany Beers, who also claim an ownership interest in the money that was seized, answered the appeal. For the following reasons, we reverse and remand.

FACTS

On January 10, 2009, Trooper Troy Du-puis of the Louisiana State Police stopped a vehicle driven by Tina Beers for a traffic violation in St. Martin Parish, Louisiana. Tina Beers consented to a search of the vehicle. As a result of the search, the police located nine bundles of cash totaling $144,320.00 which was hidden in a compartment in the floor of the vehicle. A police dog performed a “narcotics sniff’ on the money and was alerted by the scent of narcotics on the money.

Tina Beers, after being advised of her rights, waived her rights and proceeded to answer questions posed by the police. She admitted that she was the owner of the vehicle; however, she stated that the money was not hers, and she denied having knowledge of the presence of the money in the vehicle. At that time, Tina Beers signed a Disclaimer of Ownership of Currency of Property wherein she stated that she was not the owner of the $144,320.00. The money was then seized by the state police.

On January 13, 2009, the State filed an Application for Warrant of Seizure for Forfeiture, a Letter of Designation which authorized the Louisiana State Police to seize the money and hold it subject to the forfeiture proceedings, and a Notice of Pending Forfeiture. On that same date, the trial court signed the accompanying J^Warrant of Seizure for Forfeiture. The Notice of Pending Forfeiture contains the service information reflecting personal service on Tina Beers on January 10, 2009. This service information is derived from the Disclaimer of Ownership of Currency of Property which was filed into the record of these proceedings and specifically states that Tina Beers waived notice of seizure and forfeiture on January 10, 2009, when she was stopped by Trooper Dupuis.

Tina Beers and Brittany Beers filed a Motion for Probable Cause Hearing Regarding Pending Notice of Forfeiture and for Release of Seized Property on January 22, 2009, asserting their ownership of the $144,320.00. The State filed a Motion to Strike Claim on February 19, 2009. These two motions came before the trial court on April 8, 2009, at which time the trial court took the matter under advisement. The trial court rendered Reasons for Judgment on May 7, 2009, in favor of Tina Beers. It is from this judgment that the State appeals. Tina Beers and Brittany Beers have answered the appeal.

ISSUES

The issue as expressed by the State for our review is “[wjhether the personal service made on Tina Beers by the Louisiana State Police before [it] had been designated by the District Attorney to seize the property was valid.” Additionally, in her answer to appeal, Tina Beers asserts that the trial court “erred in failing to find that the alleged Notice of Forfeiture relied upon by the State was insufficient in that it did not cite a specific violation of the Louisiana Controlled Dangerous Substances Act[ ] as required by La. R.S. 40:2603, et seq.”

hLAWAND DISCUSSION

This matter came before the trial court on April 7, 2009, on a Motion for Probable Cause Hearing Regarding Pending Notice of Forfeiture and for Release of Seized Property filed on behalf of Tina Beers and a Motion to Strike Claim filed by the State. After taking the matter under advisement, the trial court issued Reasons for Judgment which state, in pertinent part, as follows:

Additionally, defendant submits that she was not given proper notice of the forfeiture proceeding. The evidence shows that Trooper Troy Dupuis served Tina Beers personally on January 10, 2009, although he was not authorized to do so at that time. The District Attorney’s Office did not designate the State Police as an agency authorized to seize the money for forfeiture until January 13, 2009. Therefore, the service which took place on January 10, 2009 was not authorized.
The Court agrees with defendant’s argument that she was not given proper notice in accordance with La. R.S. 40:2608(4).[] The language of La. R.S. 40:2608(4) is clear and unambiguous and must be applied as written. State v. 1987 Ford, 652 So.2d 638 (La.App. 1 Cir.1995). La. R.S. 40:2608(4) provides that in order to initiate forfeiture proceedings!;,] the district attorney shall serve a notice of pending forfeiture within one hundred and twenty days after the property has been seized for forfeiture. The property in this case was seized on January 10, 2009[,] and the record does not reflect that proper notice has yet been given. The Court finds that the defendant was not properly served. Because this Court has found improper service of the defendants, it need not address the other issues.

Thus, given the trial court’s determination of improper service of notice on Tina Beers, the trial court did not rule on the merits of the Motion for Probable Cause Hearing Regarding Pending Notice of Forfeiture and for Release of Seized Property|4nor the Motion to Strike Claim.

The Disclaimer of Ownership of Currency of Property indicates that “$144,320.00 in U.S. Currency” was seized by the Louisiana State Police. That document which is signed by Tina Beers contains the statement: “I hereby state that I am not the owner of this currency or property, I have no interest in it, and have no claim for its return to me.” Said document also contains the words: “To the best of my knowledge, the owner of the currency or property is:” which language is followed by several blank lines for the insertion of the names and addresses of the owners. In completing this portion of the form, and responding as to who owned the currency, Tina Beers wrote on the blank line “I don’t [k]now[.]” Consistent therewith, Tina Beers inserted “I don’t [k]now” on the blank line provided following the inquiry of how the currency came to be in her vehicle. Finally, and most importantly, the final sentence of the Disclaimer of Ownership of Currency of Property expressly states: “I have been advised and understand that by signing this disclaimer of ownership, I am ivaiving any right to notice of seizure or intention to seek forfeiture of this currency or property.” (emphasis added). The signature of Tina Beers appears at the bottom of the disclaimer.

In reaching our determination in this matter, we are guided by our earlier opinion of this court on this issue. In State v. $3,356,183.00 U.S. Currency, 04-357, pp. 4-5 (La.App. 3 Cir. 12/8/04), 894 So.2d 339, 347-48, writ denied, 05-1785 (La.1/13/06), 920 So.2d 242, this court stated as follows:

In addition to the deficiency of the claim form, Mr. Bodendieck’s purported claim lacks merit in an additional respect. Here, Mr. Bodendieck immediately denied ownership of the currency. This denial was testified to by the investigating State Trooper and is memorialized in a “Disclaimer of Currency or Property,” signed by Mr. Bodendieck and referenced in the opinion on the original hearing of this matter. |fiCertainly this was evidence to be considered by the trial court in determining the validity of Mr. Bodendieck’s claim. Furthermore, within this document, Mr. Bodendieck also waived any right he may have had to notice of seizure or forfeiture proceedings. Despite having waived this right to notice, Mr. Boden-dieck obviously had such notice, whether through printed media per La. R.S. 40:2608(3)(c) or otherwise, as is apparent from the filing of the purported claim currently under review.

Analogous to the facts in State v. $3,356,183.00 U.S. Currency, Tina Beers immediately denied ownership of the $144,320.00. Her denial was evidenced by the affidavit of Trooper Walter Mire and the Disclaimer of Currency of Property that she signed on January 10, 2009. Additionally, as in State v. $3,356,183.00 U.S. Currency, Tina Beers expressly waived any right she may have had to notice of seizure or forfeiture proceedings. Finally, again as in State v. $3,356,183.00 U.S. Currency, Tina Beers had notice and knowledge of the seizure and forfeiture proceedings as evidenced by the filing of her claim.

It is clear in this case that Tina Beers waived “any right to notice of seizure or intention to seek forfeiture of this currency or property” when she signed the Disclaimer of Currency of Property on January 10, 2009. Given the facts of this case, as we determined in State v. $3,356,183.00 U.S. Currency, we find that the waiver of notice signed by Tina Beers in the Disclaimer of Ownership of Currency of Property satisfied the service of notice requirements of La. R.S. 40:2608(4).

Having found that proper notice of seizure and forfeiture was given to Tina Beers, the issues presented by her in her answer to appeal have been rendered moot.

DECREE

The judgment of the trial court finding that Tina Beers was not given proper notice of the forfeiture proceeding is reversed. The matter is hereby remanded for the purpose of ruling on the merits of the Motion for Probable Cause Hearing Regarding ^Pending Notice of Forfeiture and for Release of Seized Property and consideration of the State’s Motion to Strike. Costs of this appeal are assessed against Tina M. Beers.

REVERSED AND REMANDED.

      . Brittany Beers, along with Tina Beers, asserted an ownership interest in the $144,320.00. However, the claim of Brittany Beers was not adjudicated in the trial court. Thus, despite the answer to appeal filed on her behalf, the claim of Brittany Beers is not properly before this court, and we make no ruling relative to same.

      . Louisiana Revised Statutes 40:2608(4) provides, relative to the commencement of forfeiture proceedings, as follows:
      Notice is effective upon personal service, publication, or the mailing of a written notice, whichever is earlier, and shall include a description of the property, the date and place of seizure, the conduct giving rise to forfeiture or the violation of law alleged, and a summary of procedures and procedural rights applicable to the forfeiture action.


source: Caselaw Access Project

author: THIBODEAUX, Chief Judge.

license: Public Domain

text:
    Clarence SMITH v. WEEKS MARINE, INC., et al.
    No. 09-980.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 3, 2010.

      Mark Gerard Artall, Lafayette, LA, for Plaintiff/Appellee-Clarence Smith.
    Kevin Reeve Duck, Duck Law Firm, Lafayette, LA, for Plaintiff/Appellee-Clarence Smith.
    Matthew Francis Popp, Waits, Emmett & Popp, L.L.C., New Orleans, LA, for Defendant/Appellant-Weeks Marine, Inc.

      Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JOHN D. SAUNDERS, and JAMES T. GENOVESE, Judges.
   THIBODEAUX, Chief Judge.

|,The plaintiff-appellee, Clarence Smith (Mr. Smith), sustained multiple injuries while quartered on the barge of the defendant-appellant, Weeks Marine, Inc. (Weeks). In June of 2005, Mr. Smith was awakened after midnight by two other crew members who dragged him from his bunk and severely beat him. Mr. Smith filed a petition naming as defendants the two attackers and Weeks, the barge owner/employer. He subsequently amended his petition to add the employer/payroll company, apparently a subsidiary of Weeks, Atlantic Sounding Company, Inc. (Atlantic). Mr. Smith alleged Jones Act negligence and unseaworthiness of the vessel. He also claimed entitlement to maintenance and cure benefits as well as to damages and attorney fees.

Mr. Smith, Weeks, and Atlantic filed cross motions for summary judgment. The trial court granted Mr. Smith a partial summary judgment on the issue of Weeks’ failure to provide a seaworthy vessel. The trial court denied the motions for summary judgment of Weeks and Atlantic which were based upon Jones Act negligence and seaworthiness. Weeks filed this appeal. We affirm the judgment of the trial court.

I.

ISSUES

We must decide whether the trial court erred in finding the quarters barge unsea-worthy based upon the attack of Mr. Smith and the criminal backgrounds of the crew members.

_kIL

FACTS AND PROCEDURAL HISTORY

On the morning of June 26, 2005, between 8:00 and 4:00 a.m., while Mr. Smith was asleep in his bunk on the quarters barge of Weeks, he was dragged from his bunk and attacked. One of his attackers was his roommate, crew member Tracey Collins, who was approximately six feet, six inches tall and weighed 236 pounds. Another crew member, Ashton Edwards, approximately six feet, one inch and 250 pounds, was in the room verbally and physically attacking Mr. Smith. Mr. Smith, approximately six feet tall and weighing 155 pounds, was thrown to the floor, punched, kicked, and rammed headfirst into the iron bed rails and metal lockers.

Mr. Smith sustained a closed head injury, a concussion, lacerations to his forehead, a retinal tear and subconjunctivial hemorrhage of the left eye, abrasions of the lower lip, a fractured incisor, the loss of four teeth, temporomandibular jaw injury (TMJ), contusions to the left side of his chest and back, trauma to his right knee and shoulder, injuries to the lower back, post traumatic stress disorder, and depression. He could not return to work for approximately two months. Mr. Smith’s medical treatment included a six-unit dental bridge and root canal, splint therapy for the TMJ, eye laser treatment for the repair of the detached retina, a lumbar diskectomy and fusion at L4-5 and L5-S1, and clinical therapy for the post traumatic stress disorder and depression.

The trial court granted Mr. Smith’s motion for summary judgment on the unseaworthiness of the vessel and denied the defendants’ motion for summary judgment on the issue of Jones Act negligence. Weeks filed a motion for reconsideration which was heard and denied in June of 2009. The trial court’s June 2009 judgment denying the motion for reconsideration also designated the November |s2008 judgment in favor of Mr. Smith a partial final judgment. Weeks appealed the June 2009 judgment.

III.

LAW AND DISCUSSION

Standard of Review

A motion for summary judgment will be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact and that mover is entitled to judgment as a matter of law.” Sher v. Lafayette Ins. Co., 07-2441 p. 5 (La.4/8/08), 988 So.2d 186, 192. Using the same criteria, courts review a grant or a denial of a motion for summary judgment de novo. Id.

Jurisdictional Issue

We will first address the jurisdictional issue of whether the 2008 judgment was a final, appealable judgment under La. Code Civ.P. art. 1915.

|4Mr, Smith’s petition asserts a Jones Act negligence claim and a claim for unseaworthiness of the vessel. It further charges Weeks and Atlantic with failure to pay maintenance and cure benefits and asserts an entitlement to damages and attorney fees. Mr. Smith subsequently filed a “Motion and Order for Partial Summary Judgment on the Issue of Liability.” However, the only liability issue addressed in the motion was for unseaworthiness of the vessel. At trial, counsel for Mr. Smith stated that if unseaworthiness were found, the court would not have to address the Jones Act negligence claims. However, Weeks argued that the court would have to deal with both. Weeks was correct. Mr. Smith actually asserted three separate theories of liability. Judge Belsome’s concurrence in Parfait v. Transocean Offshore, Inc., 04-1271, pp. 1-2 (La.App. 4 Cir. 8/10/07), 992 So.2d 465, 488-89, explained:

I ... concur with the majority’s finding that the jury’s determination that the Rather was seaworthy had no effect with regard to the jury’s finding of negligence on the part of Transocean ... as Jones Act negligence and unseaworthiness are separate and distinct causes of action with differing standards of proof, a principal [sic] that has been recognized by both the United States and Louisiana Supreme Courts, as well as this Court. See, e.g., Usner v. Luckenbach Overseas Corp., 400 U.S. 494, 498, 91 S.Ct. 514, 517, 27 L.Ed.2d 562 (1971); Griffin v. LeCompte, 471 So.2d 1382, 1387 (La.1985); Wright v. Ocean Drilling and Exploration Co., 461 So.2d 1084, 1089 (La.App. 4 Cir.1984)6 (“Theories of unseaworthiness and negligence are two separate and distinct basis [sic] of liability....’ [I]n view of the decisions in this court over the last 15 years, we can find no room for argument as to what the law is. What has evolved is a complete divorcement of unseaworthiness liability from concepts of negligence.’”) (quoting Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 551, 80 S.Ct. 926, 932-933, 4 L.Ed.2d 941 (1960)) (emphasis in original).

The concurrence footnoted other cases upholding this principle:

Olsen v. American S.S. Co., 176 F.3d 891, 894, 2000 A.M.C. 90 (6th Cir.1999) (stating that a seaman has three causes of action available to him: first, an action for maintenance and cure; second, an action for unseaworthiness; and third, a negligence action under the Jones Act); Springborn v. American Commercial Barge Lines, Inc., 767 F.2d 89, 100 (5th Cir.1985) (finding that “[w]hile the facts that give rise to unseaworthiness claims sometimes support Jones Act negligence claims, each is a distinct claim”); Chisholm v. Sabine Towing & Transp. Co., Inc., 679 F.2d 60, 62 (5th Cir.1982) (“Jones Act negligence and unseaworthiness are two separate and distinct claims.... This court recognizes [these] two different standards of causation.”).

Parfait, 992 So.2d at 494 n. 1.

Accordingly, the motion that was granted by the trial court, and the trial court’s judgment in favor of Mr. Smith on the issue of unseaworthiness alone, resulted in the adjudication of one claim or theory of liability only. The judgment did not dismiss any party to the suit under La.Code Civ.P. art. 1915(A)(1), nor did it qualify as a final and immediately appeal-able judgment under La.Code Civ.P. art. 1915(A)(3) because it falls under that sub-part’s exception for summary judgments granted pursuant to La.Code Civ.P. art. 966(E) (disposing of one claim but not of the entire case). Further, the judgment does not qualify as an immediately appeal-able final judgment under art. 1915(A)(5) because, while the motion’s title indicates that it seeks to dispose of the issue of liability, indicating that damages will be tried | (¡separately, it actually seeks to dispose of only one of three issues of liability asserted in Mr. Smith’s petition.

Therefore, the partial summary judgment granted in favor of Mr. Smith, which adjudicates fewer than all claims or the rights and liabilities of fewer than all parties is not an immediately appealable final judgment under La. Code Civ.P. art. 1915(A), but may be immediately appeal-able under 1915(B), if it is certified or designated as a final judgment by the trial court after an express determination that there is no just reason for delay. La.Code Civ.P. art. 1915(B)(1) <& (2). In the present case, the trial court did not initially certify the November 2008 judgment in favor of Mr. Smith and against Weeks on the issue of unseaworthiness as final. Therefore, the judgment was interlocutory and could be “revised at any time prior to rendition of the judgment adjudicating all the claims and the rights and liabilities of all the parties.” La.Code Civ.P. art. 1915(B)(2).

However, following the hearing on the defendants’ motion for reconsideration of the 2008 judgment, the trial court entered a judgment on June 15, 2009, denying reconsideration and certifying the prior judgment as final. It is this June 2009 judgment that is before us on appeal. Specifically, the trial court stated in the 2009 judgment, as follows: “[T]he judgment signed and filed on November 5, 2008, granting Summary Judgment in favor of Plaintiff on the Unseaworthiness Cause of Action is hereby made a final judgment.” Two weeks later, on July 2, 2009, the trial court issued written reasons for its judgment denying reconsideration and far its certification of the earlier judgment as a final judgment, based upon its opinion that “there was no just reason for delay.” The question for us on the jurisdictional issue then becomes whether the trial court’s certification of the 2008 judgment as a final, immediately appealable judgment was appropriate or defective. Ancillary |7questions arise as to whether the proper vehicle would have been an application for supervisory writs, whether the appeal should be dismissed, or converted to a writ, which is allowed in certain circumstances, or whether, a remand to the trial court is required; and, if the appeal is properly before us, what is the standard under which we conduct our review.

In order to resolve a split in the Louisiana circuit courts of appeal in interpreting the certification language of Article 1915, the Louisiana Supreme Court conducted an in-depth analysis of the legislative intent underlying the 1997 amendments to La.Code Civ.P. art. 1915, as those amendments were clearly patterned after Federal Rule of Civil Procedure 54(b). That analysis, appearing in R.J. Messinger, Inc. v. Rosenblum, 04-1664 (La.3/2/05), 894 So.2d 1113, is instructive and determinative of the jurisdictional issue before us. There, the court stated, in pertinent part, as follows:

Historically, we have a policy against multiple appeals and piecemeal litigation. We also ensure that our courts operate under principles of sound judicial administration to promote judicial efficiency and economy. The United States Supreme Court, discussing determination of whether there is no just reason for delay under Fed. R. Civ. Pro. 54, declared a district court must take into account judicial administrative interests as well as the equities involved. Curtiss-Wright[ Corp. v. General Elec. Co.], 446 U.S. [1] at 8, 100 S.Ct. [1460] at 1465[, 64 L.Ed.2d 1 (1980)]. Consideration of judicial administrative interests is necessary to assure that application of the Rule effectively “preserves the historic federal policy against piecemeal appeals.” Id. citing Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 438, 76 S.Ct. 895, 901, 100 L.Ed. 1297 (1956). Article 1915, like Rule 54, attempts to strike a balance between the undesirability of piecemeal appeals and the need for making review available at a time that best serves the needs of the parties....
|Jn order to assist the appellate court in its review of designated final judgments, the trial court should give explicit reasons, either oral or mitten, for its determination that there is no just reason for delay. However, if the trial court fails to do so, we find the appellate court cannot summarily dismiss the ap peal. For purposes of judicial efficiency and economy, we approve the approach taken by the First, Third and Fifth circuits, and hold the proper standard of revietv for an order designating a judgment as final for appeal purposes when accompanied by explicit reasons is tuhether the trial court abused its discretion .... The following list of factors, although not exclusive, may be used by trial judges when considering whether a partial judgment should be certified as appealable:
1) The relationship between the adjudicated and unadjudicated claims;
2) The possibility that the need for review might or might not be mooted by future developments in the trial court;
3) The possibility that the reviewing court might be obliged to consider the same issue a second time; and
4) Miscellaneous factors such as delay, economic and solvency considerations, shortening the time of trial, frivolity of competing claims, expense, and the like.
Allis-Chalmers [Corp. v. Philadelphia Elec. Co.], 521 F.2d [360] at 364 [(3d Cir.1975)].
However, the overriding inquiry for the trial court is whether there is no just reason for delay. Courts of appeal, when conducting de novo review in matters where the trial court fails to give explicit reasons for the certification, can consider these same criteria.
Our interpretation of article 1915, which holds the certified final judgment is properly before the appellate court even when the trial court fails to give explicit reasons for its determination, is in accordance with La.Code Civ.Pro. art. 5051 which provides “[t]he articles of this Code are to be construed liberally, and with due regard for the fact that rules of procedure implement substantive law and are not an end in themselves.”

R.J. Messinger, Inc., 894 So.2d at 1122-23 (footnote omitted) (emphasis added).

Un the present case, the trial court gave explicit written reasons for denying reconsideration, for certifying the 2008 judgment as final, and for the court’s determination that there was no just reason for delay. More specifically, the trial court stated, in pertinent part, as follows:

Lastly, the judgment of [November 5, 2008] was designated as a final judgment because the Court, in the original motion for summary judgment and in the motion for reconsideration, found that the hiring of Tracey Collins as a crewman constituted an unseaworthy condition and that finding was not contested or raised in the defendant’s motion for reconsideration. Further, there was no testimony from Mr. Collins concerning his participation that would have given rise to an issue of material [ ] fact as to what had occurred. The Court assigned finality to the judgment based on its opinion that there was no just reason for delay and that the trial of this matter was to begin two days later. The Court further stated for the record that it did not see any prejudice to the defendant in denying the motion for reconsideration that was filed within 60 days of the setting of the trial and judgment being rendered two days prior to the beginning of the taking of evidence.

Based upon the foregoing, we review the trial court’s certification of the 2008 judgment under the abuse of discretion standard. We find that the trial court did not abuse its discretion and that it properly designated as final the 2008 judgment granting partial summary judgment to Mr. Smith. The trial court provided explicit written reasons for its determination under Article 1915 that there was no just reason to delay certifying the judgment in favor of Mr. Smith as a final judgment. The court stated that nothing in the original hearing on the motion for summary judgment, and nothing in the hearing on reconsideration, created a material issue of fact, where it was undisputed that at least one of the co-defendants, Collins, attacked Mr. Smith, and where the hiring of Collins as a member of the vessel’s crew, in view of his prior record of violence, “constituted the unseaworthy condition.” Further, we note that the trial court in its reasons did address the upcoming trial just days away, and, 1 inpursuant to number four (4) of the Allis-Chairners factors, giving finality to the issue of unseaworthiness would shorten the trial and prevent rehashing the evidence on that issue.

The Merits

We will conduct a de novo review of the trial court’s granting of the summary judgment in favor of Mr. Smith. Weeks contends that the trial court erred as a matter of law in finding that the quarters barge was unseaworthy based upon the assault and the criminal backgrounds of the crew members. We disagree. In Miles v. Melrose, 882 F.2d 976, 981 (5th Cir.1989) (citations omitted) (footnotes omitted), the court explained the ship owner’s absolute duty to provide a seaworthy vessel and crew:

A ship is unseaworthy unless it and all of its appurtenances and crew are reasonably fit and safe for their intended purpose. The shipowner has an absolute duty to provide the members of his crew with such a seaworthy vessel, an obligation not dependent on fault. Just as a dangerous mast, a defective line, or a damaged hull may render a vessel unseaworthy, so may a seaman who is not reasonably fit. To establish such unseaworthiness, a plaintiff must prove that the crew member was not “equal in disposition and seamanship to the ordinary men in the calling.” Under this standard a crew member who participates in an “ordinary sailors’ brawl” is not per se unfit; the rigors of work at sea for long periods of time in the close confines of a vessel may lead not only to quarrels but to physical challenges. As Judge Learned Hand explained, “Sailors lead a rough life and are more apt to use their fists than office employees; what will seem to sedentary and protected persons an insufficient provocation for a personal encounter, is not the measure of the ‘disposition’ of ‘the ordinary men in the calling.’ ” A seaman is not unfit merely because he is irascible; he fails to meet the seaworthy standard only if he [possesses] a savage and vicious nature.

Collins’ criminal arrest and conviction history, spanning the years from 1993 to the attack on Mr. Smith in 2005, included the following:

In 10/93 Simple battery
6/94 Four counts simple burglary and criminal damage to property
9/94 Disturbing peace, resisting arrest, battery on police officer
2/95 Receiving stolen goods — guilty—■ 4/95
4/95 Disturbing the peace by fighting
4/97 Criminal damage to property, resisting arrest by flight
5/97 Simple criminal damage to property
6/97 Criminal trespass and simple battery — pled guilty — 12/98
7/97 Two counts criminal trespass and resisting arrest by flight
8/97 Simple battery, choked and hit woman — guilty plea — 10/98
8/97 Aggravated assault with a dangerous weapon
8/97 Possession of Marijuana
9/98 Aggravated battery upon a police officer and resisting arrest, hit officer in the head with a beer bottle— guilty plea — 12/98
4/00 Disturbing the peace
8/00 Simple battery upon a police officer
9/00 Two counts of simple battery, actually included two batteries on a woman and one on a man (second attack on woman hours later not counted as separate) plead guilty — 4/01
9/00 Unauthorized entry of inhabited dwelling
9/00 Violation of Protective Order
10/00 Simple battery, resisting an officer, flight from officer, and simple criminal damage to property
8/01 Simple robbery

| i2Ten of these arrests were for acts of violence against another person, at times more than one person, and three of the batteries were against police officers.

The criminal history of Edwards contained fewer events but involved firearms:

9/93 Two counts of attempted 2nd degree murder, pled to aggravated assault; chased and shot at his father twice with a twelve gauge shotgun; threatened to kill his father and mother 5/00 Aggravated assault of Gerald Collins with a firearm and disturbing the peace, threats with semi automatic rifle occurred on property of Gerald Collins, with Collins family, including Tracey Collins, providing information to the police

Weeks has admitted that both men have criminal histories but argues that they did not exhibit violent tendencies during them employment, nor did the criminal histories show up on the background checks pei’formed by Weeks. However, for many years the courts have enunciated a concept of absolute liability for unseaworthiness. The plaintiff has a right of recovery for injuries arising from an un-seaworthy ship even though there is no means of anticipating trouble. The ship is not freed from liability by mere due diligence, and the duty to provide a seaworthy ship does not at all depend upon the negligence of the shipowner or his agents. Under maritime law there is an absolute obligation to provide a seaworthy vessel and, in default thereof, liability follows for any injuries caused by the breach of the obligation. Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 80 S.Ct. 926, 4 L.Ed.2d 941 (1960).

Hence, the vessel owner’s liability for the incompetency of the crew is not dependent upon the knowledge by the owner of such deficiency as the warranty extends to unknown defects. Keen v. Overseas Tankship, Corp., 194 F.2d 515, cert. denied, 343 U.S. 966, 72 S.Ct. 1061, 96 L.Ed. 1363 (1952). The shipowner’s duty to provide a seaworthy vessel is nondele-gable and pertains to latent as well as patent defects, and |ianeither ignorance nor due diligence will serve as an adequate defense. Clevenger v. Star Fish & Oyster Co., 325 F.2d 397 (5th Cir.1963).

Mr. Smith testified in his video deposition that Collins and Edwards came into his room around 4:00 a.m. and started attacking him in his sleep, accusing him of calling Edwards’ wife and of stealing ten dollars from Collins after he fell in the water earlier and left the money out to dry. Both men had been out partying and smelled of alcohol. Mr. Smith said that he had never met or talked to Edwards’ wife and did not take Collins’ ten dollars. He stated that the attack woke him up, and he turned over to see Collins over him. He testified that he was pulled from his bed, stomped on and kicked, and rammed into the iron bed and metal lockers. When his brother tried to come in, they barricaded the door by putting a chair under the door knob. Mr. Smith was beaten on the head, in the eye, in the mouth, ribs, and back. Several teeth were knocked out, and he swallowed one.

At one point, Mr. Smith lost consciousness. He testified that, near the end of the attack, Edwards threatened him with an open knife, hit him in the back with the knife, and rubbed the blade on his leg, causing a small cut which left a scar. Mr. Smith stated that in threatening him with the knife, Edwards said, “I’ll kill you, if you say something to anybody, I’ll kill your ass.”

Lieutenant James Michael Prestenback came to the hospital after the attack. He witnessed the bruising on Mr. Smith’s back, the dried blood in his ear, the cut on his lip, and a loose tooth on his pallet. He stated that Mr. Smith’s injuries were the result of a felony, specifically a second degree battery, which is a battery committed upon a person without his consent, where there is a loss of consciousness, extreme physical pain, obvious disfigurement, and serious bodily injury. The Lieutenant interviewed the emergency room physician who diagnosed a closed head 114injury, a laceration closed by stitches, and contusions/bruising caused by a blunt object.

Mr. Smith’s brother, Christopher Smith, who wras on the job and quartered on the same barge as Mr. Smith, testified that Edwards came to his room asking which of the brothers had called his “old lady.” Edwards then said, “You better come and check up on your brother, because I’m about to hurt him.” A while later, when Christopher went to Mr. Smith’s room, he could not open the door. He started knocking, and they finally let him in, at which time he saw his brother slumped over with his knees to his chest, bleeding, while the men huddled over him, staring down at him.

Citing Walters v. Moore-McCormack Lines, Inc., 309 F.2d 191 (C.A.N.Y.1962), and Clevenger, 325 F.2d 397, Weeks argues that the actions of the crewmen against Mr. Smith do not rise to the level of savage and vicious because no dangerous weapons were used. We disagree. The court in Walters stated:

In those assault cases in which the issue of unseaworthiness has been held properly submissible to a jury, the hallmark has been either an assault with a dangerous weapon or independent evidence of the assailant’s exceptionally quarrelsome natui’e, his habitual drunkenness, his severe personality disorder, or other similar factors....
In the case before us, we need not rest our holding upon the absence of a dangerous weapon, for aside from the unfortunate instant encounter, there is no evidence to support a finding of a background of even mildly unusual character on the part of Shannon, let alone a vicious and savage one. While it is true that in 1936, Shannon, along with other individuals, entered a plea of guilty to an assault charge arising from a maritime labor dispute and received a six-month sentence with time off for good behavior, he was employed by the defendant in 1938, and served without incident for twenty years, until the date of this shipboard fracas. There was no testimony whatever of any previous display of ill temper by Shannon.

| Ir,Walters, 309 F.2d at 193-94.

However, unlike the assailant in Walters, Collins did not have a twenty-year history of non-violence with Weeks. He had worked for Weeks for only six months when the attack on Mr. Smith occurred. Collins had an eight-year record in Louisiana, from 1993 to 2001, with more than twenty arrests and ten battery charges, three of which were on police officers. Even during the “simple robbery” in 2001, which is not counted as a battery, Collins used force: he grabbed a man and held him down while stealing his money, knowing that the man had just cashed his paycheck, because Collins had robbed him on payday before. Moreover, while there appears to be a peaceful period in Collins’ life between 2001 and 2005, when the second degree battery on Mr. Smith occurred, we note that Collins lived in Houston when he started to work for Weeks in Louisiana in December of 2004, and we do not know whether anyone conducted a criminal record search on Collins in Texas.

The court in Clevenger provided examples of actions falling on both sides of the seaworthiness issue:

In Jones v. Lykes Bros. S.S. Co., Inc., 2 Cir.1953, 204 F.2d 817, [cert. denied, 346 U.S. 857, 74 S.Ct. 72, 98 L.Ed. 370 (1953),] a crew member gave the libel-lant a bad beating, continuing his blows even after the libellant had fallen. The assailant was not known to have a violent nature and used only his fists. The Court reaffirmed the Keen test although it reversed the finding of unseaworthiness. Judge Hand pointed out: ‘All men are to some degree irascible * * *. Sailors lead a rough life and are more apt to use their fists than office employees’. On the facts, there was nothing to show that the assailant was not ‘equal in disposition and seamanship to the ordinary men in the calling’.
In Boudoin v. Lykes Bros. S.S. Co., Inc., 348 U.S. 336, 75 S.Ct. 382, 99 L.Ed. 354, the Supreme Court accepted the theory of unseaworthiness based on personnel falling below the standards of the calling. Boudoin’s injury was inflicted by a deck maintenance man named Gonzales who entered Boudoin’s cabin during a nighttime | ^drinking party in search of a bottle of brandy. Boudoin awoke and startled Gonzales who attacked him savagely with the brandy bottle, inflicting grave injuries. The district court found that Gonzales was ‘a person of dangerous propensities and proclivities’, ‘a person of violent character, belligerent disposition, excessive drinking habits, disposed to fighting and making threats and assaults’. Boudoin v. Lykes Bros. S.S. Co., Inc., E.D.La. 1953, 112 F.Supp. 177 at 179....
A number of cases have applied the Keen test as restated in Boudoin. In Kelcey v. Tankers Co., 2 Cir.1954, 217 F.2d 541, the libellant was attacked by the second cook. The attacker was a much more powerful man, had served a sentence for an attack with a deadly weapon while in the Navy, and had previously threatened men aboard ship with a knife and with an axe. The Court affirmed the finding of unseaworthiness. In Connolly v. Farrell Lines, Inc., 1 Cir.1959, 268 F.2d 653, [cert. denied,, 361 U.S. 902, 80 S.Ct. 208, 4 L.Ed.2d 158 (1959),] however, the Court sustained the trial judge’s directed verdict for the shipowner where the plaintiff was injured as a result of an attack by a fellow crew member wielding a three foot plank. But the plaintiff had at hand the neck of a broken bottle. The shipowner is not liable, said the court, for ‘injuries resulting from every sailor’s brawl. ⅜ * ⅜ rpjjjg wag no£ a premeditated attack with an unmistakably deadly weapon such as a meat cleaver. In Walters v. Moore-McCormack Lines, Inc., 2 Cir. 1962, 309 F.2d 191, the court, over a vigorous dissent by Judge Friendly, con-eluded that an attack by one seaman upon another did not justify the submission of the question of seaworthiness to a jury.
The attacker used only his fists and there was no evidence of earlier trouble. In Thompson v. Coastal Oil Co., N.J. 1954, 119 F.Supp. 838 rov’d on other grounds, 3 Cir.1955, 221 F.2d 559, the libellant accused an effeminate messman of being a homosexual. The messman hid in a doorway and struck the libellant three times over the head with a meat cleaver. The district court, sitting without a jury, found that the presence of the messman rendered the vessel unsea-worthy. Similarly, the fact that a ship’s crew included a belligerent man who would stab a fellow crew member with a pocket knife rendered the ship unsea-worthy in Handley v. United States, S.D.N.Y.1958, 157 F.Supp. 616.
| )7The doctrine that a seaman’s attack is a breach of the warranty of seaworthiness applies to an unprovoked attack by a longshoreman on a fellow longshoreman. A longshoreman’s use of two cargo hooks was seen as sufficiently vicious to allow a jury to consider the question of seaworthiness. Smith v. Lauritzen, E.D.Penn. 1962, 201 F.Supp. 663.
In all of these cases, as Mr. Justice Douglas put it in Boudoin, the question is: ‘Was the assault within the usual and customary standards of the calling’. We extract from the cases the principle that in itself a savage assault with a meat cleaver or similarly dangerous weapon can be sufficient proof that the attacker is ‘not equal in disposition and seamanship to the ordinary men in the calling’. Drunkenness and bellicosity are additional factors to consider when the nature of the assault is inconclusive evidence of the attacker’s fitness in terms of his calling.

Clevenger, 325 F.2d at 400-402.

Contrary to Weeks’ assertions, this case is analogous to the above cases, where unseaworthiness was found and is distinguishable from the ones where the court failed to find unseaworthiness. More specifically, unlike the assailant in Jones, Collins used more than his fists. He also used the floor, the iron bed rails, the metal locker, his size and weight, and his feet to inflict serious injuries upon Mr. Smith. Further, he had a long record of violence. Moreover, Mr. Smith testified that Edwards used a knife, which is a dangerous weapon, and threatened to kill him. Like the attacker in Boudoin, Collins had a violent character and belligerent disposition: he had been convicted of choking and hitting a woman and a man, and then coming back on the same day and hitting the woman again. He had a history of getting drunk and starting fights. He was drinking when he attacked Mr. Smith, and he had previously hit a police officer in the head with a beer bottle. One of the police officers wrote in his report that Collins was always causing trouble for the police, resisting arrest, and running into the woods to avoid being caught. Collins was lisclearly disposed to fighting and making threats. Edwards had a much shorter record but had actually shot at his parents and threatened to kill them.

Again, like the attacker in Kelcey, Collins was a much more powerful man than Mr. Smith, with a nine-year, six-inch, and about eighty-pound advantage over him. Further, Collins had at least ten battery and assault charges on his record. Likewise, Edwards had nearly a hundred-pound advantage over Mr. Smith, used a knife on him, and threatened to kill him. Unlike the incident in the Connolly case above, where the plaintiff had a broken beer bottle and the attacker had a board, Mr. Smith was not in an one-on-one sail- or’s brawl; he was asleep, unarmed, outnumbered, and outweighed by about 180 pounds.

We find that these men’s actions, coupled with criminal records of violence, were indicative of a savage and vicious nature, far beyond the simply rowdy disposition of ordinary seamen. This is particularly true of Collins. Historically, he choked and beat his girlfriend repeatedly, bullied and stole pay checks from men, hit police officers with beer bottles, and he had a long history of engaging in fights and disturbances.

Weeks’ argument that the conduct of Collins and Edwards was the same as other men in the calling has no merit. It is ludicrous to suggest that, in addition to the everyday safety risks of manual labor on barges and oil rigs, the industry has a standard hiring practice of employing violent men who beat their sleeping, defenseless, and unconscious co-workers so badly that they cannot work for two months. What industry could survive the resulting disability of its workforce? Collins in particular did not have the disposition of an ordinary seaman; he was not fit for service, and his being quartered on the QB-105 rendered the vessel of Weeks | igunseaworthy. There was no error in the trial court’s judgment granting Mr. Smith’s motion for summary judgment on the issue of unseaworthiness.

Following the hearing on the motion for summary judgment, Weeks took the deposition of Edwards, who denied striking Mr. Smith with his fists. However, Edwards admitted to being mad, hot, drunk, and going to Mr. Smith’s room to tell him off. Apparently several crewmen, including Mr. Smith, Collins, and Edwards, were out drinking in the same club the night before the incident. Edwards was “messing with” or flirting with various women, and Mr. Smith told the women outside the club that they should not be fooling around with Edwards because he was married. Edwards was incensed that Mr. Smith would spoil his fun in this way and apparently got angrier after returning to quarters.

Edwards testified that he did not remember the details of what occurred in Mr. Smith’s room because he had been drinking. He stated that Mr. Smith and Collins were standing up arguing when he entered the room and that Mr. Smith had a “bust” lip and looked like he had been in a fight. Edwards testified that he argued with Mr. Smith and admitted that he may have brushed against Mr. Smith and put his hands on him. Edwards pltysically demonstrated some other movement made by him against Mr. Smith which was not clarified in the written record except by the lawyer examining him, who stated, “Well, there’s a punch. There’s a grab.” Edwards denied punching Mr. Smith but also testified that he subsequently apologized to Mr. Smith for the “accident” and further testified that his wife paid Mr. Smith a thousand dollars to drop the criminal charges.

Weeks had filed a pre-trial statement of uncontested facts indicating that both Collins and Edwards had attacked Mr. Smith. However, on the basis of Edwards’ deposition, Weeks brought a motion for reconsideration, asserting that this |2qtestimony created a genuine issue of fact requiring a reversal of the summary judgment in favor of Mr. Smith.

The trial court found that the testimony of Edwards did not create a material issue of fact and denied the motion for reconsideration, stating as follows:

Nothing in the defendant’s motion for reconsideration brought into issue the actions and past history of co-defendant Tracey Collins. Even if Mr. Edwards had not been involved, which the Court finds not to be the case as hereinafter set forth, the undisputed facts, both at the time of granting of the original motion for summary judgment and at the time of the motion for reconsideration, was that Tracey Collins did participate, if not perpetuated, the attack on the plaintiff; Tracey Collins had a prior history of violence and hiring Tracey Collins as a member of the vessel’s crew constituted the unseaworthy condition.

We agree. Given the history and the size of Collins, and the fact that Mr. Smith was asleep and defenseless, Edwards’ participation or non-participation in the beating, while it created a fact in dispute at the hearing for reconsideration, that fact was not material with regard to the seaworthiness of the vessel. As the trial court stated, one bad apple ruins the whole barrel. Weeks further argues that the trial court erred in making credibility determinations about Edwards. The trial court’s comment that it did not find Edwards’ testimony to be credible was inappropriate. Nonetheless, based upon our de novo review, summary judgment is still justified. The trial court repeatedly stated that Edwards’ testimony, the sole basis for the motion to reconsider, had no bearing on the effect of Collins’ actions. Therefore, we find that the trial court’s statement regarding its disbelief in part of Edwards’ testimony was harmless 1error at most, where the court’s legal analysis of the materiality of the testimony was correct.

IV.

CONCLUSION

Based upon the foregoing, we affirm the judgment granting Mr. Smith’s motion for partial summary judgment on the issue of unseaworthiness. All costs of this appeal are assessed against Weeks.

AFFIRMED.

      . Article 1915 provides in pertinent part as follows:
      A. A final judgment may be rendered and signed by the court, even though it may not grant the successful party or parties all of the relief prayed for, or may not adjudicate all of the issues in the case, when the court:
      (1) Dismisses the suit as to less than all of the parties, defendants, third party plaintiffs, third party defendants, or intervenors.

      (3) Grants a motion for summary judgment, as provided by Articles 966 through 969, but not including a summary judgment granted pursuant to Article 966(E).

      (5) Signs a judgment on the issue of liability when that issue has been tried separately by the court....

      B. (1) When a court renders a partial judgment or partial summary judgment or sustains an exception in part, as to one or more but less than all of the claims, demands, issues, or theories ... the judgment shall not constitute a final judgment unless it is designated as a final judgment by the court after an express determination that there is no just reason for delay.
      (2) In the absence of such a determination and designation, any order or decision which adjudicates fewer than all claims or the rights and liabilities of fewer than all the parties, shall not terminate the action as to any of the claims or parties and shall not constitute a final judgment for the purpose of an immediate appeal. Any such order or decision issued may be revised at any time prior to rendition of the judgment adjudicating all the claims and the rights and liabilities of all the parties.

      . See La.Code Civ.P. art. 2164; Yell v. Sumich, 08-296 (La.App. 3 Cir. 10/15/08), 997 So.2d 69; LeBlanc v. LeBlanc, 05-212 (La. App. 3 Cir. 11/02/05), 915 So.2d 966; Stelluto v. Stelluto, 05-74 (La.6/29/05), 914 So.2d 34.

      . The trial court stated in its reasons for judgment: "[Ajlthough a motion for summary judgment is not used to judge the veracity or credibility of a witness, this case was tried as a bench trial and the trier of fact, having had the opportunity to read the deposition testimony of defendant Edwards, did not find his testimony to be truthful or credible, particularly when he testified as to his activities or lack of participation in the encounter with the plaintiff.”


author: GENOVESE, Judge. SAUNDERS, Judge.

text:
    SCIENTIFIC DRILLING INTERNATIONAL, INC. v. Carl MECHE, the Director of the Lafayette Parish School Board Sales Tax Division.
    No. 09-1120.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 3, 2010.

      Robert R. Rainer, Drew M. Talbot, Rainer, Anding & McLindon, Baton Rouge, LA, for Defendant/Appellant Carl Meche, the Director of the Lafayette Parish School Board Sales Tax Division.
    Jesse R. Adams, III, Andre B. Burvant, Jones, Walker, Waeehter, Poitevent, Car-rere & Denegre, L.L.P., New Orleans, LA, for Plaintiff/Appellee Scientific Drilling International, Inc.
    Frederick Mulhearn, David Hansen, Louisiana Department of Revenue, Baton Rouge, LA, for Amicus Curiae Cynthia Bridges, Secretary, Louisiana Department of Revenue.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JOHN D. SAUNDERS, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

| iDefendant/Appellant, Carl Meche, the Director of the Lafayette Parish School Board Sales Tax Division (School Board), appeals from the trial court’s grant of summary judgment in favor of Plaintiff/Appel-lee, Scientific Drilling International, Inc. (Scientific), finding no use tax was owed by Scientific to the School Board. For the following reasons, we affirm the judgment of the trial court.

FACTS

Scientific filed a Petition for Refund of Tax Paid Under Protest against the School Board in December of 2006. Scientific’s payment of a use tax to the School Board was made, under protest, pursuant to an audit of Scientific’s business operations from May 1, 2003, through March 31, 2006.

Both Scientific and the School Board filed motions for summary judgment. According to the School Board’s Motion for Partial Summary Judgment, it “issued to [Scientific] a formal Notice of Assessment on July 10, 2006” after which Scientific paid “$443,629.24 ... under protest....”

In its Cross-Motion for Summary Judgment, Scientific asserted that it was entitled to a “refund [of] the entirety of [its] payment under protest.” In its memorandum in support of its motion, Scientific argued that according to the Lafayette Parish School Board Sales and Use Tax Ordinance (Lafayette Ordinance), “only tangible personal property that is stored for use in the Parish is subject to the tax levy by the Ordinance.”

A hearing on the parties’ counter motions for summary judgment was held on July 20, 2009. The trial court ruled in favor of Scientific, stating: “It appears to me that no tax was levied on property stored for use in another parish, no tax was levied |2by the taxing authority.” A judgment to this effect was signed by the trial court the same day. The School Board appeals.

ASSIGNMENTS OF ERROR

The School Board asserts the following assignments of error:

I. The [trial court] committed reversible error in granting the [Cross-]Motion for Summary Judgment filed by Scientific, and in denying the Motion for Partial Summary Judgment filed by the School Board, by holding that the applicable Lafayette Parish Ordinances do not impose a use tax on articles of tangible personal property purchased out-of-state tax free and then imported into Lafayette Parish for interchangeable, universal,] and indiscriminate use both within and outside the Parish.
II. The [trial court] committed reversible error in failing to hold that pursuant to the “taxable moment” rale, adopted by the Supreme Court of Louisiana and the Third Circuit Court of Appeal, the use tax attached the moment the imported property had ended its interstate travels, came to rest in Lafayette Parish, and became a part of the mass of the property of Lafayette Parish were it was stored, repaired[,] and distributed.
III. The [trial court] committed reversible error in failing to hold that Scientific overcame the legal presumption that its imported property, upon coming to rest in Lafayette Parish for interchangeable, universal!,] and indiscriminate ultimate use in all of Scientific’s market areas, was presumed to be subject to Lafayette Parish use tax.

STANDARD OF REVIEW

Our Louisiana Supreme Court has instructed us on the standard of review relative to a motion for summary judgment as follows:

A motion for summary judgment is a procedural device used when there is no genuine issue of material fact for all or part of the relief prayed for by a litigant. Duncan v. U.S.A.A. Ins. Co., 2006-363[,] p. 3 (La.11/29/06), 950 So.2d 544, 546, see [La.Code Civ. P.] art. 966. A summary judgment is reviewed on appeal de novo, with the appellate court using the same criteria that govern the trial court’s determination of whether summary judgment is appropriate; ie. whether there is any genuine issue of material fact, and whether the movant is entitled to judgment as a matter of law. Wright v. Louisiana Power & Light, 2006-1181[,] p. 17 (La.3/9/07), 951 So.2d 1058, 1070; King v. Parish National Bank, 2004-0337[,] p. 7 (La.10/19/04), 885 So.2d 540, 545; Jones v. Estate of Santiago, 2003—1424[,] p. 5 (La.4/14/04), 870 So.2d 1002, 1006.

Samaba v. Rau, 07-1726, pp. 3-4 (La.2/26/08), 977 So.2d 880, 882-83 (footnote omitted).

LAW AND DISCUSSION

Louisiana Civil Code Article 9 provides: “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.”

[T]ax statutes are to be interpreted liberally in favor of the taxpayer, and if the statute can reasonably be interpreted more than one way, the interpretation less onerous to the taxpayer shall be adopted. Tarver v. E.I. DuPont de Nemours and Co., 616 So.2d 216 (La.App. 5th Cir.1993), affirmed, 93-1005 (La.3/24/95); 634 So.2d 356.

Clyde Juneau Co., Inc. v. Caddo-Shreveport Sales and Use Tax Comm’n, 28,433, p. 6 (La.App. 2 Cir. 6/26/96), 677 So.2d 610, 613.

The relevant section of the Lafayette ordinance specifically applicable in this case provides, in pertinent part (emphasis added):

IMPOSITION OF TAX
Section 2.01. There is hereby levied from and after December 1, 1965, for the purposes stated in the proposition set forth in the preamble to this resolution, a tax upon the sale at retail, the use, the lease or rental, the consumption and storage for use or consumption of tangible personal property and on sales of services within this Parish, as defined herein;....

On appeal, the School Board cites Firestone Polymers v. Calcasieu Parish School System, 07-501 (La.App. 3 Cir. 10/31/07), 969 So.2d 748, and Word of Life Christian Center v. West, 04-1484 (La.4/17/06), 936 So.2d 1226, as applicable jurisprudence in the instant matter. The School Board argues that these cases ^support its contention that all tangible property imported into Lafayette Parish is taxable at the moment it comes to rest in the parish.

In Firestone, the taxpayer sought a refund of taxes paid on shipping containers leased out-of-state, delivered to its plant in Calcasieu Parish, Louisiana, and stored and maintained there while periodically used in interstate commerce. This court affirmed the summary judgment in favor of the tax collector because Louisiana’s interstate commerce exclusion, found in La. R.S. 47:305(E), did not prohibit the tax collector from applying the lease tax on shipping containers.

In Word of Life, the taxpayer, a nonprofit religious organization located in Ascension Parish, challenged a use tax levied on its purchase and use of airplanes. After an extensive examination of the “taxable moment” and “ultimate use” doctrines, our supreme court held that once the airplanes were imported and parked in a hangar in East Baton Rouge Parish, they came to rest in Louisiana; thus, a “taxable moment” occurred in Louisiana. Id. at 1239. Though the supreme court determined that the taxpayer was subject to Louisiana’s use tax in Louisiana, the supreme court also held that the applicable section of the Ascension Parish ordinance did not grant it the authority to impose a use tax on property delivered outside of the territorial limits of the parish.

Scientific argues that Firestone and Word of Life are not controlling in this case. In brief, Scientific asserts:

[Firestone and Word of Life ] only answer the first question of whether the Parish can levy a tax on goods moving in interstate commerce. However, while the Parish may have the authority to levy a tax, the School Board neglects to consider the second question of whether the Ordinance actually levies a tax on storage. In the case of the Ordinance at issue, it specifically, and clearly, only imposes a tax on property “stored for use or consumption in the Parish.”

IsWe agree. Though the aforementioned cases uphold the authority of a taxing agency to impose such a use tax, Ihe language of the Lafayette ordinance does not grant the authority to impose such a tax on property stored but not used in Lafayette Parish.

Further, we find instructive our holding hi Lafayette Parish School Board v. C & B Sales & Service, Inc., 98-1096, 98-1097 (La.App. 3 Cir. 2/3/99), 735 So.2d 6. There, analogous to the instant matter, the issue was whether compressors that were assembled and stored in Lafayette Parish, but used elsewhere, were subject to a use tax in Lafayette Parish. Analyzing the same ordinance, this court affirmed the trial court’s holding that the Lafayette ordinance does not impose a use tax on property which is stored but not used in Lafayette Parish.

Applying the terms of the ordinance at issue herein, no use tax is due on equipment stored but not used in Lafayette Parish. For there to be a “taxable moment,” as the School Board argues, a provision authorizing an imposition of a use tax on property which is stored but not used must exist in the ordinance. The Lafayette ordinance simply imposes a use tax on property that is both stored and used in Lafayette Parish. We find no error in the trial court’s ruling that Scientific owed no use tax to the School Board for the property that it stored, but did not use, in Lafayette Parish.

DECREE

For the above reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed against Defendant/Appellant, Carl Meche, the Director of the Lafayette Parish School Board Sales Tax Division.

AFFIRMED.

SAUNDERS, J., dissents and assigns written reasons.

SAUNDERS, Judge.

|/The majority opinion affirms the trial court’s ruling granting a Cross-Motion for Summary Judgment in favor of Scientific. The judgment holds that the applicable Lafayette Parish ordinances do not apply to Scientific because the equipment was stored but not “used” within the Parish. I disagree.

As noted in the majority opinion, the jurisprudence supports the proposition that a taxing agency may impose such a use tax. The majority finds, however, that the language of the ordinance at issue does not provide for imposing such a tax. The primary question becomes whether the equipment was “used” within the Parish.

The relevant section of the ordinance reads as follows:

Section 2.01. There is hereby levied from and after December 1, 1965, for the purposes stated in the proposition set forth in the preamble to this resolution, a tax upon the sale at retail, the use, the lease or rental, the consumption and storage for use or consumption of tangible personal property and on sales of services within this Parish, as defined herein;....

The majority opinion suggests that the equipment must be “used” in Lafayette Parish in order to fall within the ambit of the ordinance. On this point we are in agreement. Where we disagree is on the meaning of the word as it is intended in the ordinance.

Central to my concerns in this matter is the disconnect between the generally prevailing notions of the meaning of “use” and its definition as it relates to tax matters.— more specifically, how it is defined by the Louisiana Administrative Code’s section on sales and use tax.

A reading of LAC 61:I.4301(A-B) makes it clear that words and phrases in the Administrative Code shall be construed according to the common usage of the language, except when those words or phrases are “[tjechnical words and phrases” or are defined under LAC 61:I.4301(C). “Use” is so defined:

|2a. Use under state and local sales or use tax law is intended to include not only the commonly accepted concept of use but also to cover the consumption, the distribution, or the storage, or the exercise of any right of power over tangible personal property. Since tax is imposed on the sale or tangible personal property, use has been defined to specifically exclude property sold at retail in the regular course of business.

It is clear then that the word “use”, when employed in state and local tax law (the Lafayette Parish ordinance), covers the storage or the exercise of any right of power over tangible personal property. This is in contrast with “use” as it is contemplated in the proposed opinion and in the Merriam-Webster dictionary, where it is defined as, “the act or practice of employing something.”

Along with these codal provisions, I find significant the following language used by our Supreme Court in BP Oil Co. v. Plaquemines Parish Government, 93-1109 (La.9/6/94), 651 So.2d 1322, 1328, a case where the operator of a refinery was seeking the refund of overpayments of local use taxes: “Therefore, while a local government can enact use tax legislation without legislative authorization at a rate of up to three percent, the local government must define the terms of the legislation in accordance with the general state laws on use taxes.”

When considering the definition of “use” under the Louisiana Administrative Code coupled with the Louisiana Supreme Court’s language in BP Oil Co., it is inescapable that by storing its out-of-state purchased equipment in a Lafayette Parish warehouse, Scientific’s conduct fell squarely within the scope of the ordinance promulgated by Lafayette Parish. Thus, the taxes paid should not be refunded, and the decision of the trial court should be reversed. It is for these reasons that I disagree with the majority.

Accordingly, I respectfully dissent.


author: SAUNDERS, Judge. GENOVESE, J.,

text:
    Stephanie Bergeron GUILLORY v. Phillip Landry GUILLORY.
    No. 09-988.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 3, 2010.

      David L. Carriere, Attorney at Law, Opelousas, LA, for Defendant/Appellee, Phillip Landry Guillory.
    Lynette Young Feucht, Judge, City Ct. of Eunice, Eunice, LA, for Plaintiff/Appellant, Stephanie Bergeron Guillory.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JOHN D. SAUNDERS, and JAMES T. GENOVESE, Judges.
   SAUNDERS, Judge.

11The appellant, Stephanie Bergeron Guillory (“Mrs.Guillory”), appeals the trial court’s judgment granting exceptions of res judicata and no cause of action in favor of the appellee, Phillip Landry Guillory (“Mr.Guillory”). For the following reasons, we reverse and remand.

FACTS AND PROCEDURAL HISTORY:

Mr. and Mrs. Guillory were divorced by a Judgment of Divorce rendered in January of 2005. In January of 2008, the 27th Judicial District Court found that Mrs. Guillory was free from fault and in need of spousal support. Finding also that Mr. Guillory had the ability to pay, the court granted Mrs. Guillory an award of seven hundred dollars ($700.00) per month as final spousal support to be paid for a period of three years.

In May of 2008, Mrs. Guillory filed a rule to show cause why final support should not be continued. She based the rule on her worsening health condition and her increased medical expenses. At this time, Mrs. Guillory was employed as a librarian at a St. Landry Parish public library and was earning one thousand three hundred sixty-four dollars ($1,364.00) per month. In opposition, Mr. Guillory filed exceptions of res judicata and no cause of action. The trial court dismissed the exceptions and granted Mrs. Guillory an additional six months of spousal support.

In December of 2008, Mrs. Guillory again filed a motion to continue spousal support, alleging a change in circumstances. She asserted that her medical expenses had increased and that she had also suffered a broken hip which was preventing her from being able to work. Mr. Guillory again responded with exceptions of res judicata and no cause of action. The trial court granted the exceptions and dismissed Mrs. Guillory’s rule. It is from this judgment that Mrs. Guillory now appeals, |2asserting the following assignment of error:

ASSIGNMENT OF ERROR:

The trial court erred in granting ap-pellee’s exception of res judicata and no cause of action and in denying appellant the opportunity to present facts contained in her original and amended petitions which support her need for continued final spousal support. Furthermore, it erred in reversing its position on the law expressed one year earlier without giving reasons for the contradictory ruling.

LAW AND DISCUSSION:

The issue presented before this court is whether an award of final spousal support set to a fixed duration may be subsequently modified upon a showing of a change of circumstances. For the following reasons, we find that it can.

NO CAUSE OF ACTION

A final periodic support award may be modified, waived or extinguished by a district court upon a shovdng of a change of circumstance of either party. La. C.C. art. 114 and art. 116. An award of alimony is never final. White v. White, 393 So.2d 240, 241 (La.App. 1 Cir.1980). The party seeking the modification or termination of support carries the burden of proof that circumstances have changed since the original award. Rains v. Rains, 376 So.2d 1298 (La.App. 2 Cir.1979).

Gilbreath v. Gilbreath, 32,292, p. 2 (La.App. 2 Cir. 9/22/99), 743 So.2d 300, 302-303 (emphasis added).

Mr. Guillory argues that because the trial court awarded Mrs. Guillory final support fixed to a three year term, absent an appeal of the original judgment, she is precluded by law from seeking to modify the award. We find no merit in this argument. The Louisiana Civil Code makes it clear that such awards may be modified.

Louisiana Civil Code Article 112 sets out the rules for determining final periodic support. It reads in pertinent part:

|SA. When a spouse has not been at fault an is in need of support, based on the needs of that party and the ability of the other party to pay, that spouse may be awarded final periodic support in accordance with Paragraph B of this Article.
B. The court shall consider all relevant factors in determining the amount and duration of final support. Those factors may include:
(6) The health and age of the parties.

Louisiana Civil Code Article 114 addresses the modification and termination of an award of periodic support. “An award of periodic support may be modified if the circumstances of either party materially change and shall be terminated if it has become unnecessary. The subsequent remarriage of the obligor spouse shall not constitute a change of circumstances.” Id.

A reading of the above articles shows that an award of spousal support under La.Civ.Code art. 112 may be modified by way of La.Civ.Code art. 114 if there is a showing that circumstances have materially changed. Typically, awards of final periodic support under La.Civ.Code art. 112 are not restricted by a term. However, comment (c) to the article notes that such awards are contemplated under Article 112.

(c) The sixth factor listed in this Article, coupled with the word “duration” in the first sentence of the Article, permits the court to award rehabilitative support and other forms of support that terminate after a set period of time.... The appropriateness of a rehabilitative award depends upon the capacity of the recipient spouse to become self-supporting, in light of the relevant factors listed in this Article.... Other factors may also form the basis of a fixed-duration award, but it is contemplated that such awards will ordinarily be based upon the assumption that certain facts will occur within the term fixed in the judgment awarding support.

The award to Mrs. Guillory of seven hundred dollars ($700.00) per month for a term of three years, with six additional months added on, falls within the scope of Article 112 as an “other form of support that terminates after a set period of time.” | ;The question remains whether such awards are susceptible to modification under Article 114. Comment (b) to Article 114 is directly on point:

The recipient of a rehabilitative or other fixed-duration periodic award may also seek to have it modified or extended under this Article. See comment (c) to Article 112, supra. The court should make the determination whether periodic support will be modified or terminated based on the changed circumstances of either party.

Comment (c) to Article 112 and comment (b) to Article 114 provide that the trial court’s award to Mrs. Guillory falls within the ambit of Articles 112 and 114. Thus, the spousal support may be modified if it can be shown that there has been a change in circumstances. For these reasons, we find that the trial court erred in granting the exception of no cause of action. We therefore reverse the trial court’s grant of the exception of no cause of action.

RES JUDICATA

Mr. Guillory argues that the doctrine of res judicata applies and precludes any modification or extension of the spousal support award as a result of the initial judgment handed out by the trial court in January of 2008. We disagree.

Res Judicata is addressed in La. R.S. 13:4231, which provides in pertinent part:

Except as otherwise provided by law, a valid and final judgment is conclusive between the same parties, except on appeal or other direct review, to the following extent:
(3) A judgment in favor of either the plaintiff or the defendant is conclusive, in any subsequent action between them, with respect to any issue actually litigated and determined if its determination was essential to that judgment.

We also consider La. R.S. 13:4232(B), which more specifically addresses the issue before this court. The statute addresses res judicata as it applies to actions for divorce and those matters incidental to divorce, including spousal support. It reads | iSas follows:

In an action for divorce under Civil Code Article 102 or 103, in an action for determination of incidental matters under Civil Code Article 105, in an action for contributions to a spouse’s education or training under Civil Code Article 121, and in an action for partition of community property and settlement of claims between spouses under R.S. 9:2801, the judgment has the effect of res judicata only as to causes of action actually adjudicated. []

The statute serves to limit that application of the doctrine of res judicata in divorce proceedings and certain matters incidental to divorce, including actions for spousal support. A subsequent action for modification of spousal support in itself is not precluded.

As it applies to the matter before us, La. R.S. 13:4232(B) would serve to preclude Mrs. Guillory from seeking to modify the spousal support judgment on the grounds urged in May of 2008. However, because of the alleged change in factual circumstances, the cause of action now asserted by Mrs. Guillory has not previously been adjudicated. The unfortunate events alleged to have befallen Mrs. Guillory may have the effect of a change in circumstances that may make modification of the award appropriate.

Mr. Guillory argues that the spousal support judgment issued by the trial court in January of 2008 can only be modified by an appeal of that judgment, or alternatively an annulment. We disagree. This argument is counterintuitive to the principle set forth in Article 114 that an award of spousal support may be modified or terminated in the event that the circumstances of either party materially change. If the award could only be contested or modified on appeal, the existence of Article 114 would be unnecessary.

| HAfter considering the facts and circumstances presented in this case, we find that they fall outside the scope of the doctrine of res judicata. While the parties are the same, we find that the issues presented herein, particularly Mrs. Guillory’s allegation of a broken hip and loss of employment, have not previously been litigated. Accordingly, we find that the exception of res judicata was improperly granted by the trial court. For these reasons we reverse the trial court’s grant of the exception of res judicata.

CONCLUSION:

For the foregoing reasons, we reverse the ruling of the trial court granting the exceptions of no cause of action and res judicata. We remand this matter to the trial court so that Mrs. Guillory may seek relief based on her change in circumstances, including her alleged injuries and loss of employment. The costs of this appeal are assessed to Mr. Guillory.

REVERSED AND REMANDED.

GENOVESE, J., concurs in the result and assigns written reasons.

GENOVESE, J.,

concurs and assigns the following reasons:

11Subject to La.Civ.Code art. 115, I agree with the majority that Mrs. Guillory has a cause of action for the modification of final periodic support insofar as the issue of support “lives on.” La.Civ.Code art. 114. However, I disagree with the majority as to the effect of res judicata as set forth in La. R.S. 13:4232(B).

In my view, the August 13, 2008 judgment was res judicata in accordance with La. R.S. 13:4232(B). That judgment was never appealed and is, therefore, a final and definitive judgment as to the cause of action (final periodic support) which involved the same parties and actually determined, litigated, and adjudicated that specific issue at that point in time.

However, because the issue of spousal support is never final, notwithstanding an extinguishment of the obligation pursuant to La.Civ.Code art. 115, Mrs. Guillory may bring a new or separate rule for support alleging a change in factual circumstances. Therefore, I must concur only in the result of this matter.

      . Louisiana Civil Code Article 105 addresses determinations of incidental matters to a divorce. This includes spousal support.