text:
    William G. ANDERSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-169
    District Court of Appeal of Florida, First District.
    July 11, 2018
    Candice K. Brower, Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, Region One, Gainesville, and Michael J. Titus, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, Region One, Tallahassee, for Appellant, and William G. Anderson, pro se.
    Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

In Appellant's direct criminal appeal, his counsel filed a brief pursuant to Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). We agree there are no meritorious issues for appeal, and affirm the judgment and sentence. However, Appellant correctly argues that the trial court erred in failing to give him notice and an opportunity to object to the fine imposed pursuant to section 775.083 of the Florida Statutes, and the accompanying surcharge assessed pursuant to section 938.04. Carmichael v. State , 192 So.3d 640, 640 (Fla. 1st DCA 2016). This issue was preserved for appeal by the denial of Appellant's motion to correct sentencing error. Fla. R. Crim. P. 3.800(b)(2). We therefore strike this fine and surcharge. The lower tribunal may, but is not required to, reimpose them on remand after following the proper procedure. See Nix v. State , 84 So.3d 424, 426 & n.2 (Fla. 1st DCA 2012) (noting it may be an imprudent use of judicial resources to conduct further proceedings to impose a fine on a defendant who is serving a lengthy prison sentence).

Wolf, Bilbrey, and Kelsey, JJ., concur.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Harry F. MCCRAY, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 1D18-0165
    District Court of Appeal of Florida, First District.
    July 11, 2018
    Harry F. McCray, Jr., pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Amanda D. Stokes, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

AFFIRMED . See Romero v. State , 105 So.3d 550, 552-54 (Fla. 1st DCA 2012) (holding that Graham v. Florida , 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), does not apply to an 18-year-old defendant, notwithstanding the juvenile nature of the defendant's mental and emotional development), rev. denied , 131 So.3d 789 (Fla. 2013).

Wetherell, Rowe, and Winokur, JJ., concur.


author: PER CURIAM.

text:
    Earl Lee SUTTON, Jr., Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D18-1259
    District Court of Appeal of Florida, Fifth District.
    Opinion filed July 13, 2018
    Earl Lee Sutton, Carrabelle, pro se.
    Pamela Jo Bondi, Attorney General Tallahassee, and, Marjorie Vincent-Tripp, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the April 17, 2017 order denying Petitioner's pro se second amended motion for post-conviction relief, filed in Case No. 2009-191-CFAWS in the Seventh Judicial Circuit Court in and for Volusia County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

COHEN, C.J., BERGER and EDWARDS, JJ., concur.


text:
    Dievlese WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-1225
    District Court of Appeal of Florida, Fifth District.
    Opinion filed July 13, 2018
    Dievlese Williams, Chipley, pro se.
    No Appearance for Appellee.
   PER CURIAM.

Dievlese Williams appeals the summary denial of both grounds raised in his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm as to Ground Two. However, we reverse the summary denial of Ground One and remand for attachment of portions of the record refuting that claim or for an evidentiary hearing. See Freeman v. State, 761 So.2d 1055, 1061 (Fla. 2000) ("[A] defendant is entitled to an evidentiary hearing on a postconviction relief motion unless (1) the motion, files, and records in the case conclusively show that the prisoner is entitled to no relief, or (2) the motion or a particular claim is legally insufficient.").

AFFIRMED in part, REVERSED in part, and REMANDED.

SAWAYA, ORFINGER and EDWARDS, JJ., concur.


text:
    Heather ZETROUER, Petitioner, v. Dean ZETROUER, Respondent.
    No. 1D18-2098
    District Court of Appeal of Florida, First District.
    July 19, 2018
    Christopher L. Dunham of Dunham & Ingram, LLC, Ocala, for Petitioner.
    Kevin D. Jurecko and Lindsey Booth Turner of Scruggs & Carmichael, P.A., Gainesville, for Respondent.
   Per Curiam.

The petition for writ of prohibition is denied on the merits.

Wetherell, Bilbrey, and M.K. Thomas, JJ., concur.


text:
    Delano Alfonca JONES, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-3876
    District Court of Appeal of Florida, Fifth District.
    Opinion filed July 13, 2018
    Gregory W. Eisenmenger, of Eisenmenger, Robinson, Blaue & Peters, P.A., Viera, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Allison L. Morris, Assistant Attorney General, Daytona Beach, for Appellee.
    ON CONCESSION OF ERROR
   PER CURIAM.

Delano Alfonca Jones appeals the trial court's order denying his motion to return property seized by the police at the time of his arrest. The State concedes error except as to the single firearm discharged by Jones resulting in the charges against him. We accept the State's concession and reverse the order denying return of the property seized by the police except as to the shotgun that formed the basis of count III of the charges brought against Jones.

AFFIRMED in part; REVERSED in part; and REMANDED.

ORFINGER, TORPY and LAMBERT, JJ., concur.


text:
    Victoria FATER, Petitioner, v. Kyle FATER, Respondent.
    No. 1D18-2000
    District Court of Appeal of Florida, First District.
    July 19, 2018
    Michael R. Yokan, Jacksonville, for Petitioner.
    Corrine A. Bylund of Bylund Law, PLLC, Jacksonville Beach, for Respondent.
   Per Curiam.

The petition for writ of prohibition is denied on the merits.

Wetherell, Bilbrey, and M.K. Thomas, JJ., concur.


author: PER CURIAM WEIMER, J., dissenting.

text:
    Jennifer Elizabeth LEE, Wife of and Craig Allen Lee v. PEARL RIVER BASIN LAND AND DEVELOPMENT COMPANY, LLC., et al.
    No. 2018-CC-0355
    Supreme Court of Louisiana.
    June 25, 2018
    ON SUPERVISORY WRITS TO THE NINETEENTH JUDICIAL DISTRICT COURT, PARISH OF EAST BATON ROUGE
   PER CURIAM

Writ granted. The judgment of the Court of Appeal, First Circuit, is reversed and set aside, and the judgment of the trial court, insofar as it denied the state's motion for summary judgment, is reinstated. We find there are genuine issues of material fact that preclude the state's entitlement to summary judgment. This case is remanded to the district court for further proceedings.

REVERSED AND REMANDED.

WEIMER, J., dissenting.

I respectfully dissent and would deny the writ in this matter.


text:
    IN RE: Clara E. TOOMBS
    NO. 2018-OB-0948
    Supreme Court of Louisiana.
    June 25, 2018
    ORDER
   Considering the Joint Petition for Transfer to Disability Inactive Status,

IT IS ORDERED that Clara E. Toombs, Louisiana Bar Roll number 17834, be and she hereby is transferred to disability inactive status. All disciplinary proceedings against respondent shall be deferred until such time as she resumes active status.

Pursuant to Supreme Court Rule XIX, § 26(E), this order shall be effective immediately.


text:
    IN RE: Marsha M. GREEN
    NO. 2018-OB-1015
    Supreme Court of Louisiana.
    June 25, 2018
    ORDER
   Considering the Petition for Voluntary Resignation from the Practice of Law filed by petitioner, Marsha M. Green, IT IS ORDERED that the petition of Marsha M. Green, Louisiana Bar Roll number 17993, seeking to voluntarily resign from the practice of law in the State of Louisiana pursuant to Supreme Court Rule XVIII, § 5 be and is hereby granted.


text:
    IN RE: Melanie K. SHRELL
    NO. 2018-OB-0974
    Supreme Court of Louisiana.
    June 25, 2018
    ORDER
   Considering the Joint Petition for Transfer to Disability Inactive Status,

IT IS ORDERED that Melanie K. Shrell, Louisiana Bar Roll number 30961, be and she hereby is transferred to disability inactive status. All disciplinary proceedings against respondent shall be deferred until such time as she resumes active status.

Pursuant to Supreme Court Rule XIX, § 26(E), this order shall be effective immediately.


author: PER CURIAM

text:
    IN RE: COMMITTEE ON BAR ADMISSIONS CFN-294073
    NO. 2018-BA-0896
    Supreme Court of Louisiana.
    June 25, 2018
    BAR ADMISSIONS PROCEEDING
   PER CURIAM

After reviewing the evidence and considering the law, we conclude petitioner is eligible to be admitted to the practice of law in Louisiana, subject to the following conditions:

I. The term of this conditional admission shall be for two years from the date of admission. However, petitioner's conditional admission status shall not be terminated until this court so orders.
II. Within thirty days of petitioner's admission, he shall enter into a formal plan with the Office of Disciplinary Counsel ("ODC") incorporating the following conditions:
A. During the period of this conditional admission, petitioner shall attend and successfully complete the Louisiana State Bar Association's Ethics School program.
B. Petitioner shall cooperate with the ODC, and shall comply with any and all requirements imposed upon him by the ODC.
III. Within thirty days prior to the expiration of the conditional admission, the ODC shall file a report in this court in which it shall recommend to the court that the conditional admission be allowed to terminate or be extended.

Should petitioner fail to make a good faith effort to satisfy these conditions, or should he commit any misconduct during the period of probation, his conditional right to practice may be terminated or he may be subjected to other discipline pursuant to the Rules for Lawyer Disciplinary Enforcement.

CONDITIONAL ADMISSION GRANTED.


text:
    IN RE: Michael L. THIEL
    NO. 2018-B-0367
    Supreme Court of Louisiana.
    June 25, 2018
    ATTORNEY DISCIPLINARY PROCEEDING
   PER CURIAM

In December 2016, respondent pleaded guilty to tax evasion. Following the filing of formal charges, respondent and the Office of Disciplinary Counsel submitted a joint petition for consent discipline. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Michael L. Thiel, Louisiana Bar Roll number 8491, be and he hereby is disbarred, retroactive to February 9, 2017, the date of his interim suspension. His name shall be stricken from the roll of attorneys and his license to practice law in the State of Louisiana shall be revoked.

IT IS FURTHER ORDERED that respondent shall not apply for readmission to the practice of law following his disbarment unless he is in full compliance with all orders of the U.S. Federal Courts.

IT IS FURTHER ORDERED that all costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court's judgment until paid.


text:
    Angela JACKSON v. FAMILY DOLLAR STORES OF LOUISIANA INC., S & S Janitorial Services, LLC, SMS Assist, LLC
    NO. 2018-C-0170
    Supreme Court of Louisiana.
    April 18, 2018
    Granted. See Order Attached.
    And, whereas, the Court has this date, pursuant to Article 5, Section 5, of the Constitution of Louisiana, made and issued the following order, to wit-"It is ordered that the writ of review issue; that the District Court and the Court of Appeal send up the record in Duplicate of the case; and that counsel for all parties be notified."
    Now, therefore, the said District Court and the Court of Appeal is hereby commanded, in the name of the State of Louisiana and of this Honorable Court, to send up forthwith to this Court, in accordance with Supreme Court Rule 1, at the City of New Orleans, the record in duplicate of the above-entitled case.


author: McCLENDON, J.

text:
    Alvin LANGSFORD v. FIREFIGHTERS RETIREMENT SYSTEM
    2017 CA 0719
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: MARCH 29, 2018
    Gilbert R. Buras, Jr., New Orleans, Louisiana, Counsel for Plaintiff/Appellant Alvin Langsford
    Henry D. H. Olinde, Jr., Scott E. Mercer, Douglas S. Smith, Jr., Steven S. Stockstill, Baton Rouge, Louisiana, Counsel for Defendant/Appellee Firefighters' Retirement System
    BEFORE: McCLENDON, WELCH, AND THERIOT, JJ.
   McCLENDON, J.

A retiree seeks review of a trial court judgment that granted the Firefighters' Retirement System's motion for summary judgment and dismissed the retiree's suit that sought to remove a beneficiary from his retirement plan. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Alvin Langsford was employed as a firefighter by the City of Kenner Fire Department from December 3, 1984 until April 9, 2009. On March 6, 2012, the Firefighters' Retirement System ("FRS") sent Mr. Langsford correspondence that the FRS would commence payment of his retirement benefit when Mr. Langsford turned fifty on April 23, 2012. The FRS enclosed a "Retirement/DROP/IBO Application" that required Mr. Langsford to select a retirement benefit option. The correspondence instructed Mr. Langsford to review and complete the application and return it to the FRS.

Mr. Langsford completed and submitted his application on March 16, 2012, electing "Option 3" and designating Luciene Pessoa DaSilviera as the beneficiary of 50% of his retirement benefit after his death. At the time of the election, Mr. Langsford and Ms. DaSilviera were engaged to be married. Next to his election, Mr. Langsford made the following acknowledgement below which he signed his name: "I hereby acknowledge that my option selection on this application is irrevocable and I cannot change my decision later." Below the referenced acknowledgement, Mr. Langsford executed an affidavit where he recognized that he was not married at the time of the election and that his retirement benefit would be reduced.

Mr. Langsford received his first benefit payment in May 2012. Subsequently, according to Mr. Langsford, he and Ms. DaSilviera amicably broke off their engagement. Mr. Langsford then contacted the FRS to request that Ms. DaSilviera be deleted as the Option 3 beneficiary. On September 20, 2012, the FRS denied Mr. Langsford's request, noting that the Application clearly stated that "The beneficiary MAY NOT be changed after retirement/DROP effective date."

In July 2014, Mr. Langsford filed a Petition, naming the FRS as defendant, and seeking, among other things, a declaratory judgment and mandatory injunction ordering the FRS to pay benefits at the actuarially appropriate rate under the election as sole beneficiary under the plan.

Subsequently, the FRS moved for summary judgment on the grounds that Mr. Langsford's selection of Option 3 was irrevocable given that the time period for modification under the relevant statute had passed. In opposition to FRS's motion for summary judgment, Mr. Langsford asserted that there was neither a constitutional nor statutory prohibition to the FRS effecting his request to delete the beneficiary.

Following a hearing, the trial court granted the FRS's motion for summary judgment. On October 12, 2016, the trial court signed a judgment dismissing Mr. Langsford's claims against the FRS. Mr. Langsford has appealed, asserting that the trial court erred in concluding that his election of a beneficiary under Option 3 was irrevocable.

DISCUSSION

When summary judgment is granted in the context of statutory interpretation, there are no material issues of fact in dispute and the sole issue before us is a question of law as to the correct interpretation of the statute at issue. GameStop, Inc. v. St. Mary Parish Sales and Use Tax Dep't, 14-0878 (La.App. 1 Cir. 3/19/15), 166 So.3d 1090, 1094, writ denied. 2015-0783 (La. 6/1/15), 171 So.3d 929.

Relevant hereto, Louisiana Revised Statutes 11:2256, applicable to the FRS, provides that "[a]ny member who has completed twenty or more years of creditable service and who leaves employment covered by this system before attaining age fifty ... may select, at any time prior to thirty days before the date that benefits are scheduled to commence to the member, any optional retirement allowance as provided for in R.S. 11:2259." LSA-R.S. 11:2256A(3). Further, "within the same time period allowed above [i.e., thirty days before the date that benefits are scheduled to commence to the member], the member may change the option selected or the beneficiary of the option selected." LSA-R.S. 11:2256A(3).

On appeal, Mr. Langsford contends that the trial court erred in concluding that he could not delete Ms. DaSilviera as beneficiary. Mr. Langsford contends that no provision found in either LSA-R.S. 11:2256 or 11:2259 indicates that the optional retirement allowance is "irrevocable." Rather, Mr. Langsford asserts that those statutes provide a procedure for the election of the "optional allowance," but the election itself is completely voluntary on the part of the member-beneficiary.

Mr. Langsford notes that his right to a pension benefit is a property right. See Frazier v. Harper, 600 So.2d 59, 62 (La. 1992). Mr. Langsford also notes that as a statewide retirement system, membership in the FRS constitutes a contractual relationship between employee and employer. LSA-Const. art. 10, § 29 (B). Mr. Langsford avers that viewed simply as a "contract," the FRS's insistence on "irrevocability" must fail because the express terms of the contract do not call for same. Mr. Langsford also urges that there is no administrative law or rule mandating irrevocability. Mr. Langsford claims that the FRS's position on the "irrevocability" of the beneficiary election in this case is based solely upon a practice grounded in convenience and where, as here, the requested deletion of a beneficiary would have no actuarial effect upon the system, the FRS's refusal to permit the deletion of the beneficiary consenting to same is an unwarranted impingement on a pensioner's property rights.

Moreover, Mr. Langsford asserts that the member-beneficiary selection clause is a donation inter vivos. As such, Mr. Langsford avers that it can be revoked because of non-fulfillment of a condition, i.e. the failure of Mr. Langsford and Ms. DaSilviera to get married. See LSA-C.C. art. 1556. Mr. Langsford contends that while it would not be reasonable for the FRS to inquire into the motivating factors of every beneficiary election, it is reasonable to insist that it provide a rational method to correct elections made under error of fact or law. He further points out that LSA-R.S. 11:2256.1 permits the removal of an ex-spouse beneficiary.

The interpretation of any statutory provision starts with the language of the statute itself. Oubre v. Louisiana Citizens Fair Plan, 11-0097 (La. 12/16/11), 79 So.3d 987, 997. When the provision is clear and unambiguous and its application does not lead to absurd consequences, its language must be given effect, and its provisions must be construed so as to give effect to the purpose indicated by a fair interpretation of the language used.

LSA-C.C. art. 9 ; LSA-R.S. § 1:4 ; Oubre, 79 So.3d at 997. Unequivocal provisions are not subject to judicial construction and should be applied by giving words their generally understood meaning. LSA-C.C. art. 11 ; LSA-R.S. § 1:3 ; Oubre, 79 So.3d at 997. Laws on the same subject matter must be interpreted in reference to each other. LSA-C.C. art. 13.

Further, the meaning and intent of a law is determined by considering the law in its entirety and all other laws on the same subject matter and placing a construction on the provision in question that is consistent with the express terms of the law and with the obvious intent of the legislature in enacting it. In re Succession of Boyter, 99-0761 (La. 1/7/00), 756 So.2d 1122, 1129. The statute must therefore be applied and interpreted in a manner which is consistent with logic and the presumed fair purpose and intention of the legislature in passing it. Id. Courts should give effect to all parts of a statute and should not give a statute an interpretation that makes any part superfluous or meaningless, if that result can be avoided. Id.

Louisiana Revised Statutes 11:2256A(3) provides the manner for changing retirement options and beneficiary designations so long as they are done within "thirty days before the date that benefits are scheduled to commence." Mr. Langsford has pointed to no other statutory provision that permits removal of a beneficiary other than for ex-spouses. Moreover, there is no other time period set forth in the FRS scheme within which a beneficiary can be removed.

The preclusive effect of failing to change the beneficiary designation prior to the prescribed time is evidenced by the fact that the Legislature found it necessary to create an express exception in LSA-R.S. 11:2256.1. The exception allows an FRS retiree to remove a former spouse as beneficiary and restore the retiree's lifetime benefits at any time. Louisiana Revised Statutes 11:2256.1 provides, in pertinent part:

A. Notwithstanding any other provision of law to the contrary, any retiree may remove a former spouse as a beneficiary of any benefits paid or payable to the former spouse from this system, provided the former spouse consents to such removal and the consent is evidenced by a certified court order issued in connection with a divorce proceeding relative to the retiree and former spouse.
B. The benefit payable to any retiree who provides for removal of a former spouse as a beneficiary pursuant to Subsection A of this Section shall be restored to the maximum amount payable under R.S. 11:2256(A)(4), less any reduction required to account for the time that the former spouse was a beneficiary.

If LSA-R.S. 11:2256A(3) allowed FRS retirees to modify their selection after the time for doing so as dictated by the statute expired, then LSA-R.S. 11:2256.1 would be rendered unnecessary and superfluous.

Further, despite Mr. Langsford's assertion that the codal articles on donations inter vivos should allow him to change the designated beneficiary given that he did not marry Ms. DaSilviera, the FRS statutes are more specific to this situation and control. See Teachers' Retirement System of Louisiana v. Vial, 317 So.2d 179 (La. 1975). In Vial, the decedent's daughter claimed that the disbursement of death benefits under the statutes governing the teacher's retirement system violated the rules in the Civil Code on donations, which prescribe various forms that the gift must assume in order to be valid. In rejecting this argument, the court noted:

However, where two statutes are in conflict, the statute that is more specifically directed to the matter at issue must prevail as an exception to the statute that is more general in character. Hence, the statutory method by which teachers' retirement death benefits are assigned constitutes an exception to the Civil Code requirements of form ordinarily applicable to donations, and, as such, the assignment is not subject to attack as a donation invalid for want of form. (Footnote omitted.)

317 So.2d at 183. As such, LSA-R.S. 11:2256A(3) controls under these circumstances.

Even so, Mr. Langsford asserts that the FRS failed to demonstrate that his request to delete the beneficiary would result in actuarial unsoundness of the system. Mr. Langsford avers that options adding beneficiaries result in the division of the pension benefit pie that would otherwise go wholly to the retiree. He contends that removal of a beneficiary does not result in a bigger pension for a retiree. However, given our interpretation of LSA-R.S. 11:2256A(3), we need not address actuarial soundness.

While we appreciate Mr. Langsford's position and the inequity of the situation, we are constrained by the plain statutory language. Although the Legislature has allowed a retiree to remove a former spouse as beneficiary, it has not made any exception for this factual scenario. If any further exceptions are to be carved out, such should be accomplished legislatively.

CONCLUSION

For the foregoing reasons, we affirm the trial court's October 12, 2016, judgment. Costs of this appeal are assessed to appellant, Alvin Langsford.

AFFIRMED.

      Louisiana Revised Statutes 11:2259A(1) provides four optional allowances to choose from in lieu of the regular retirement benefit as follows:
      Option 1. If he dies before he has received in member's annuity payments the present value of his member's annuity as it was at the time of his retirement, the balance shall be paid to such person as he shall nominate by written designation duly acknowledged and filed with the board of trustees; or
      Option 2. Upon his death, his reduced retirement allowance shall be continued throughout the life and paid to such person as he shall nominate by written designation duly acknowledged and filed with the board of trustees at the time of his retirement; or
      Option 3. Upon his death, one-half of his reduced retirement allowance shall be continued throughout the life of and paid to such person as he shall nominate by written designation duly acknowledged and filed with the board of trustees at the time of his retirement; or
      Option 4. Some other benefit or benefits shall be payable to any or all of the following persons: the member, the member's spouse, the member's child or children with a permanent mental or physical disability, or the member's dependent minor child or children as he shall nominate, provided such other benefit or benefits, together with the reduced retirement allowance, shall be certified by the actuary to be of equivalent value to his retirement allowance and approved by the board of trustees.

      We note that the Legislature charged the FRS Board of Trustees with "[t]he general administration and responsibility for the proper operation of the retirement system and for making effective the provision of this Chapter." LSA-R.S. 11:2260. According to Jason P. Starns, Benefits Manager for the FRS who has worked for the system since 1998, the FRS Board of Trustees has "interpreted and applied the election of benefit options listed in La. R.S. 11:2259 as being irrevocable after 30 days before a member's retirement benefits commence, i.e., the member's retirement date." Mr. Starns indicated that the Board of Trustees "has never made an exception to this rule" during his tenure. Additionally, we note that LSA-R.S. 11:2259 was recently amended to provide that "[t]he nomination made pursuant to Option 2, Option 3, or Option 4 ... is irrevocable on and after the date that the first of any benefit payments become due." LSA-R.S. 11:2259A(2), as amended by 2017 La. Acts No. 21. The 2017 Regular Session Actuarial Note to the amendment makes clear that the bill "merely codifies into law the FRS' interpretation that the beneficiary election under Option 2, 3, and 4 is irrevocable."

      Louisiana Code of Civil Procedure article 1556 provides:
      A donation inter vivos may be revoked because of ingratitude of the donee or dissolved for the nonfulfillment of a suspensive condition or the occurrence of a resolutory condition. A donation may also be dissolved for the nonperformance of other conditions or charges.

      Additionally, Louisiana Revised Statutes 11:2259B provides an additional exception that allows a member who is single at the time of his retirement, but later marries, to select an option for his new spouse.

      Mr. Langsford has not asserted that any portion of LSA-R.S. 11:2256 is unconstitutional.


author: CRAIN, J.

text:
    Whitney BANK v. Henry RAYFORD
    NO. 2017 CA 1244
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: MARCH 29, 2018
    Willie E. Broome, Baton Rouge, Louisiana, Attorney for Appellant, Henry Rayford
    David Jefferson Dye, New Orleans, Louisiana, Attorney for Appellee, Nobles Construction, L.L.C.
    BEFORE: GUIDRY, PETTIGREW, AND CRAIN, JJ.
   CRAIN, J.

Henry Rayford appeals a judgment sustaining exceptions of peremption and prescription, and dismissing his third party petition against Nobles Construction, L.L.C. We reverse and remand.

FACTS

This appeal arises from Nobles' construction of three houses for Rayford, which Rayford intended to use as rental properties. Nobles completed the construction in 2008. Rayford alleges that after tenants moved into the houses, hazardous mold and mildew was discovered, which Rayford attributes to defects in construction. According to Rayford, it became obvious that the houses could not be used for their intended purposes. Thereafter, Rayford defaulted on the promissory notes that financed the construction and Whitney Bank filed the underlying suit.

In 2016, Rayford asserted a third party demand against Nobles. Rayford alleged he hired Nobles as required for financing approval, and Nobles failed to obtain required building permits and inspections during construction. Rayford claimed Nobles' actions and failures were fraudulent. Rayford further alleged Nobles failed to comply with building standards, complete the job, and rectify problems, which resulted in a breach of contract. Finally, Rayford alleged Nobles performed defective work or used defective materials, resulting in mold and mildew in the houses.

In response, Nobles filed peremptory exceptions of peremption and prescription. Nobles argued Rayford's claims should be dismissed pursuant to Louisiana Revised Statute 9:2772, which provides the peremptive periods applicable to actions against contractors related to construction of improvements on immovable property. Nobles argued the unsubstantiated fraud allegations should be disregarded and therefore the fraud exception to Section 9:2772 is inapplicable. Alternatively, Nobles argued Rayford's claims are prescribed. The trial court sustained the exception and dismissed the third party demand. Rayford appeals.

DISCUSSION

Liberative prescription is a mode of barring actions as a result of inaction for a period of time. La. Civ. Code art. 3447. Peremption is a period of time fixed by law for the existence of a right. Unless timely exercised, the right is extinguished upon expiration of the peremptive period. La. Civ. Code art. 3458. Peremption has been likened to prescription in that peremption is prescription that is not subject to renunciation, interruption, or suspension. See La. Civ. Code art. 3461 ; Quatrevingt v. State through Landry, 17-0884 (La. App. 1 Cir. 2/8/18), 242 So.3d 625, 631-32 (2018 WL 793496, p. 3).

Peremption and prescription are properly raised by the peremptory exception, and the rules governing the burden of proof as to prescription also apply to peremption. See La. Code Civ. Pro. art. 927 ; Quatrevingt, 242 So.3d at ----. Ordinarily, the exceptor bears the burden of proof at the trial of the peremptory exception. However, if the plaintiff's claim is perempted or prescribed on its face, the burden shifts to the plaintiff to show the action is not perempted or prescribed. Prevo v. State ex rel. Dept, of Public Safety and Corrections Div. of Probation and Parole, 15-0823 (La. 11/20/15), 187 So.3d 395, 398.

Evidence may be introduced to support or controvert the exceptions of peremption and prescription. See La. Code Civ. Pro. art. 931. Here, although the parties attached documents as exhibits to their pleadings and memoranda, no evidence was introduced at the hearing on the exception. Unless properly offered and introduced into evidence, documents attached to memoranda do not constitute evidence and cannot be considered as such on appeal. Atain Speciality Ins. Co. v. Premier Performance Marine, LLC, 15-1128 (La. App. 1 Cir. 4/8/16), 193 So.3d 187, 190. In the absence of evidence, exceptions of peremption and prescription must be decided on the facts alleged in the petition with all allegations accepted as true. See Lomont v. Bennett, 14-2483 (La. 6/30/15), 172 So.3d 620, 627. Further, where no evidence is introduced to support or controvert the exception, the manifest error standard of review does not apply, and the appellate court's role is to determine whether the trial court's ruling was legally correct. Atain, 193 So.3d at 190.

Section 9:2772A pertinently sets forth a five-year peremptive period applicable to suits against contractors for defective construction:

A. Except as otherwise provided in this Subsection, no action, whether ex contractu, ex delicto, or otherwise, including but not limited to an action for failure to warn, to recover on a contract, or to recover damages, or otherwise arising out of an engagement of planning, construction, design, or building immovable or movable property which may include, without limitation, consultation, planning, designs, drawings, specification, investigation, evaluation, measuring, or administration related to any building, construction, demolition, or work, shall be brought against any person performing or furnishing land surveying services, as such term is defined in R.S. 37:682, including but not limited to those services preparatory to construction, or against any person performing or furnishing the design, planning, supervision, inspection, or observation of construction or the construction of immovables, or improvement to immovable property, including but not limited to a residential building contractor as defined in R.S. 37:2150.1 :
(l)(a) More than five years after the date of registry in the mortgage office of acceptance of the work by owner.
(b) If no such acceptance is recorded within six months from the date the owner has occupied or taken possession of the improvement, in whole or in part, more than five years after the improvement has been thus occupied by the owner.

The peremptive period applies whether the demand is asserted as a direct action or as a third party demand, and whether brought by the owner or other person. La. R.S. 9:2772B(3).

The legislature enacted Section 9:2772 to protect building contractors from liability for past construction projects that could extend for an indefinite period of time. Lemoine Co., LLC v. Durr Heavy Constr., LLC, 15-1997 (La. App. 1 Cir. 10/31/16), 206 So.3d 244, 249, writ denied, 16-2100 (La. 1/13/17), 215 So.3d 247. If an acceptance of the construction is recorded within six months of occupancy, the peremptive period begins on the date the acceptance is recorded; if no acceptance is recorded within six months of occupancy, the peremptive period begins on the date of occupancy. Celebration Church, Inc. v. Church Mut. Ins. Co., 16-245 (La. App. 5 Cir. 12/14/16), 216 So.3d 1059, 1062.

Rayford's third party petition does not indicate whether an acceptance of construction was recorded that would trigger the peremptive period. Nor does Rayford's petition indicate the date of occupancy. While it can be determined from the petition Nobles completed construction of the homes in 2008, this is not determinative of the commencement of the peremptive period. See Celebration Church, Inc., 216 So.3d at 1062 ; Guidry v. Sunset Recreation Club, Inc., 571 So.2d 870, 872 (La. App. 3 Cir. 1990), writ denied, 577 So.2d 14 (La. 1991). Rayford's third party petition alleges tenants moved into the houses, which would constitute occupancy; however, the petition does not allege when that occurred. See Celebration Church, Inc., 216 So.3d at 1062 ; see also Lauren Plaza Assoc.,Ltd. v. Gordon H. Kolb Dev., Inc., 853 F.Supp. 941, 943-44 (E.D. La. 1994). Without any allegation of the date acceptance was recorded or the date of occupancy, Rayford's claims are not perempted on the face of the third party demand.

Since Rayford's claims are not perempted on the face of the third party petition, Nobles had the burden of proving the facts to support its peremption exception. See Atain, 193 So.3d at 191. As previously stated, neither party offered evidence in support of or controverting the exception. Without evidence to establish the pertinent dates, Nobles failed to carry its burden of proof. See Atain, 193 So.3d at 190. The trial court legally erred in sustaining the exception of peremption and dismissing Rayford's third party petition on that basis. Considering this, we pretermit consideration of whether Rayford's allegations of fraud exempt his claims from the peremptive period established by Section 9:2772.

Nobles' peremptory exception additionally urged an exception of prescription based on Louisiana Civil Code articles 3492 and 3493. Article 3492 provides delictual actions are subject to a liberative prescription of one year commencing from the date the injury or damage is sustained. Article 3493 provides that for damage caused to immovable property, the one-year prescriptive period commences on the day the owner of the immovable acquired, or should have acquired, knowledge of the damage. Tracts of land with their component parts, including buildings belonging to the landowner, are immovables. See La. Civ. Code arts. 462, 463.

Rayford's third party petition does not allege the date injury or damage was sustained or the date he knew or should have acquired knowledge of the damage; therefore, it is not prescribed on its face. Compare Rebstock v. Seismic Exchange, Inc., 13-0540, 2013 WL 5915140, pp. 4-5 (La. App. 1 Cir. 11/1/13). Further, Nobles failed to offer into evidence the demand letter Nobles contends Rayford sent more than one year before the third party demand was filed and establishes the third party demand is prescribed. On the record before us, Nobles failed to carry its burden of proving Rayford's claims are prescribed.

CONCLUSION

The trial court's judgment sustaining the peremptory exceptions of peremption and prescription and dismissing Rayford's third party petition is reversed, and this matter is remanded for further proceedings. Costs of this appeal are assessed to Nobles Construction, L.L.C.

REVERSED AND REMANDED.

      Whitney Bank's claims against Rayford were resolved by a summary judgment, which is not at issue in this appeal.

      The judgment on appeal sustains Nobles' exception and dismisses Rayford's third party claims. In his brief, Rayford incorrectly refers to the judgment on appeal as a summary judgment and frames his assignments of error and arguments accordingly. We will consider the substance of Rayford's arguments to determine whether Rayford is entitled to the relief he requests, i.e., reversal of the judgment appealed. See La. Code Civ. Pro. arts. 2129 (providing that an assignment of error is not necessary in any appeal) and 2164 (providing that an appellate court "shall render any judgment which is just, legal, and proper upon the record on appeal"); Uniform Rules of Louisiana Courts of Appeal, Rule 1-3 (providing "Courts of Appeal will review only issues which were submitted to the trial court and which are contained in specifications of error, unless the interest of justice clearly requires otherwise.").

      Section 9:2772A(l)(c) provides that if a claim is brought within ninety days of the expiration of the five-year peremptive period, the person against whom the demand is made shall have ninety days from service of the demand to file a claim for contribution, indemnity, or a third party claim against another party. On appeal, Nobles contends Rayford's third party claim is untimely because it was filed more than two years after Whitney Bank filed its petition. We find no merit in this argument since this provision is also dependent on the dates the peremptive period began and expired, which Nobles failed to prove.


text:
    Kimberly L. ROBINSON, Secretary of Department of Revenue, State of Louisiana v. MANTLE OIL & GAS, LLC
    2017 CA 0894
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: MARCH 29, 2018 Rehearing Denied April 23, 2018
    Eulis Simien, Jr., Jimmy Simien, Ashley E. Philen, Baton Rouge, Louisiana, Counsel for Plaintiff/Appellant Kimberly L. Robinson, Secretary of Revenue, State of Louisiana
    M. Taylor Darden, Seth E. Bagwell, New Orleans, Louisiana, Counsel for Defendant/Appellee Mantle Oil & Gas, LLC
    BEFORE: McCLENDON, WELCH, AND THERIOT, JJ.
   McCLENDON, J.

In this appeal, the defendant challenges the trial court's judgment that granted summary judgment in favor of the plaintiff, ordered a refund of oil severance taxes paid under protest, and dismissed the matter with prejudice. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

Mantle Oil & Gas, LLC (Mantle), an oil and gas limited liability company domiciled in Texas, is the owner and operator of the Dugas & LeBlanc Well located on the Dugas & LeBlanc Co., Ltd. lease (the Dugas & LeBlanc Lease) in the Napoleonville Field in Assumption Parish. Until April 2015, Mantle also owned and operated the Roberts Well on the Adele Roberts lease (the Roberts Lease) in the LeBlanc Field in Allen Parish.

As to the Dugas & LeBlanc Well, Mantle sells the oil produced from that well to Central Crude, Inc. (Central) pursuant to a written oil purchase contract. Central's trucks pick up the oil stored in Mantle's tanks on the Dugas & LeBlanc Lease and transport the oil off the property. Pursuant to the purchase contract, Central deducts $1.80 per barrel from the price paid for Mantle's oil. Mantle then pays the Louisiana Department of Revenue (Department) 12.5% of the price it receives from Central for the sale of the oil as severance taxes.

Regarding the Roberts Well, Mantle sold the oil produced from that well to Plains Marketing, LP (Plains) pursuant to a verbal agreement based on "Plains South Louisiana Swett Posted Price," plus a $.96 premium beginning January 1, 2009. On April 1, 2013, Plains increased the premium to $15.50. In April of 2015, Mantle sold its interest in the Roberts Well on the Roberts lease and terminated its purchase agreement with Plains.

In May of 2015, the Department began an audit review of Mantle's severance tax payments from January 1, 2012, through December 31, 2014, on oil produced from the Dugas & LeBlanc Well and the Roberts Well. The Department's preliminary findings were questioned by Mantle, and Mantle responded with information and documentation maintaining that it had properly paid all severance taxes due for the audit period. The Department revised its findings, but determined that Mantle still owed taxes, and sent a Notice of Assessment to Mantle in the amount of $73,461.31 for unpaid oil severance taxes, interest, and penalties. The additional taxes that were alleged to be owed were based on the Department's inclusion of the $1.80 per barrel amount in gross receipts for the Dugas & LeBlanc Well and on the Department's "posted field price" for the Roberts Well. On February 5, 2016, in accordance with statutory requirements, Mantle sent a letter to the Department, enclosing its check in the amount of $73,461.31 as payment under protest and providing notice of its intent to file suit because it did not agree that any taxes, interest, or penalties were owed.

On February 29, 2016, Mantle filed its petition against the Department to recover the protested tax payment. Thereafter, the Department filed its answer, and on December 2, 2016, Mantle filed a motion for summary judgment. Following a hearing, the trial court granted the motion for summary judgment, finding that Mantle had properly paid all severance taxes that were due and rejected the Department's assessment of additional taxes, interest, and penalties. The trial court signed a judgment on April 28, 2017, ordering the refund of Mantle's payment under protest and dismissing the matter with prejudice. The Department suspensively appealed.

DISCUSSION

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

When the issue before the court on the motion for summary judgment is one on which the party bringing the motion will bear the burden of proof at trial, the burden of showing there is no genuine issue of material fact remains with the party bringing the motion. See LSA-C.C.P. art. 966D; Fouquet v. Daiquiris & Creams of Mandeville, L.L.C., 10-0233 (La.App. 1 Cir. 9/13/10), 49 So.3d 44, 46. When a motion for summary judgment is made and supported, an adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him. LSA-C.C.P. art. 967B. Further, summary judgment is subject to de novo review on appeal, using the same standards applicable to the trial court's determination of the issues. Mabile's Trucking, Inc. v. Stallion Oilfield Services, Ltd., 15-0740 (La. App. 1 Cir. 1/8/16), 185 So.3d 98, 101, writ denied. 16-0251 (La. 4/4/16), 190 So.3d 1207.

Moreover, in a motion for summary judgment, the "only documents that may be filed in support of or in opposition to the motion are pleadings, memoranda, affidavits, depositions, answers to interrogatories, certified medical records, written stipulations, and admissions." LSA-C.C.P. art. 966A(4). Additionally, "[s]upporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." LSA-C.C.P. art. 967A.

On appeal, the Department initially contends that the trial court erred in allowing Mantle to submit the affidavit of its owner, Chris Barden, in support of the motion for summary judgment. The Department maintains that Mr. Barden's affidavit contained statements that were not based on his personal knowledge as required by LSA-C.C.P. art. 967. We disagree. Upon our review of the record, we find that Mr. Barden's affidavit was based on his personal knowledge. Simply because Mr. Barden did not know what Central did with the oil after it picked up the oil from Mantle's storage tanks and moved it off the Dugas & LeBlanc Lease did not render his affidavit inadmissible due to a lack of personal knowledge. That fact was not material for purposes of the summary judgment motion before the court. Further, Mr. Barden's testimony regarding a lack of a posted field price for the Roberts Well was based on his personal knowledge. Therefore, we find that Mr. Barden's affidavit was admissible.

Article VII, § 4(B) of the Louisiana Constitution provides for the levy of taxes on natural resources severed from the soil or water. "Such taxes may be predicated upon either the quantity or value of the products at the time and place of severance." Id. The taxes shall be paid at a rate of "twelve and one-half percentum of its value at the time and place of severance. Such value shall be the higher of (1) the gross receipts received from the first purchaser, less charges for trucking, barging and pipeline fees, or (2) the posted field price." LSA-R.S. 47:633(7)(a). See also La. Admin Code, Title 61, Part I, § 2903. In this matter, the issues presented for review are the proper application of "the gross receipts received from the first purchaser, less charges for trucking, barging and pipeline fees" and the proper application of "the posted field price."

It is a well-established principle of statutory construction that absent clear evidence of a contrary legislative intention, a statute should be interpreted according to its plain language. Cleco Evangeline, LLC v. Louisiana Tax Com'n, 01-2162 (La. 4/3/02), 813 So.2d 351, 354. 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. LSA-C.C. art. 9. This principle applies to tax statutes. Cleco Evangeline, LLC, 813 So.2d at 354. Further, taxing statutes must be strictly construed against the taxing authority; where a tax statute is susceptible of more than one reasonable interpretation, the construction favorable to the taxpayer is to be adopted. Cleco Evangeline, LLC, 813 So.2d at 356.

Additionally, with regard to administrative agency decisions, a reviewing court should afford considerable weight to the agency's construction and interpretation of its rules and regulations adopted under a statutory scheme that the agency is entrusted to administer, and its construction and interpretation should control unless they are found to be arbitrary, capricious, or manifestly contrary to its rules and regulations. Delahoussaye v. Board of Sup'rs of Community and Technical Colleges, 04-0515 (La.App. 1 Cir. 3/24/05), 906 So.2d 646, 649 (citing Matter of Recovery I, Inc., 93-0441 (La.App. 1 Cir. 4/8/94), 635 So.2d 690, 696, writ denied. 94-1232 (La. 7/1/94), 639 So.2d 1169 ).

In its appeal, the Department maintains that Mantle underpaid its oil severance tax owed pursuant to LSA-47:631, et seq. The Department contends that it assessed additional taxes based on the improper deduction by Mantle of purported transportation costs on the Dugas & LeBlanc Well. Therefore, according to the Department, Mantle's gross receipts were actually higher than the amount received by Mantle. The Department also assessed additional taxes based on a "posted field price" for the Roberts Well, asserting that Mantle was unable to produce a contract or other supporting documentation to verify the value produced from the Roberts Well.

The Dugas & LeBlanc Well

The Department avers that, in its audit, it reviewed Mantle's purchase contract with Central and found that the $1.80-per-barrel deduction was for "gathering and handling." The Department's Revenue Information Bulletin (RIB) excludes "gathering" from transportation costs. "Gathering" is referred to as the "processes or services associated with collecting or moving the oil or condensate prior to its being moved off the lease and placed into a truck, barge, or pipeline." RIB No. 08-015 (6/30/08). Therefore, the Department argues, since the contract itself refers to the deduction as "gathering," which is not an allowable deduction, the purported "transportation" deduction was improper, and it adjusted the reported value of the oil from the Dugas & LeBlanc Well accordingly. The Department also asserts that a deduction can only be taken for costs incurred by a producer for transportation to a point of sale or delivery off the lease. It contends that the plain language of Mantle's contract states that title to the oil transferred to Central and delivery occurred on the Dugas & LeBlanc Lease. The purchase contract provides that "[d]elivery and measurement shall take place and title and risk of loss shall pass to Buyer as the oil enters the inlet flange of Buyer's designated carrier." Thus, according to the Department, any alleged transportation costs would have been for transportation beyond the point of sale or delivery rather than to the point of sale or delivery and, therefore, are not a deductible expense. Lastly, the Department asserts that the regulations provide that transportation costs are deductible only when charged by a third-party and, as Central was a party to the sale, it did not qualify as a third party.

The evidence submitted in support of and in opposition to the motion for summary judgment shows the following. It is undisputed that Mantle and Central are unrelated parties and the purchase contract was an arms-length transaction. Central picks up the oil it purchases from Mantle in its trucks from Mantle's storage tanks on the Dugas & LeBlanc Lease and transports the oil off the lease. Joseph Milazzo, vice-president of the crude oil marketing division of Central, attested that he executed the contract with Mantle, dated October 5, 2010, and that, pursuant to the contract, Central purchases oil produced from wells owned and operated by Mantle including the Dugas & LeBlanc Well. In the purchase agreement, the purchase price of the oil is based on a stated formula "minus gathering and handling of $3.00 per barrel (test oil/recovered oil). The gathering and handling deduction will be $1.80 when the production facilities are in place." Mr. Milazzo attested that by the end of 2010, Mantle had production facilities in place, and Central was deducting $1.80 per barrel, as opposed to $3.00 per barrel, from the purchase price. He attested that Central does not own or operate any of the flowlines, processing equipment, oil tanks, or any other facilities or equipment on the leased premises. Further, he stated that the phrase "gathering and handling" in the purchase agreement referred to transportation of the oil from the Dugas & LeBlanc Lease off the lease using Central's trucks, that Central was not involved in the actual gathering or handling of the oil on the Dugas & LeBlanc Lease, and that Central's only responsibility was to truck the oil off the lease. Mr. Milazzo also attested that the price paid by Central to purchase the oil is reduced by the $1.80 amount, and Central does not bill Mantle separately for the $1.80 per barrel charge.

Mr. Barden's testimony was similar. He stated in his affidavit that Central transports the oil it purchases by truck from Mantle's gathering and storage tanks to Central's receiving facility, located off the Dugas & LeBlanc Lease. Mr. Barden further stated that the $1.80 per barrel charge by Central, although referred to as a "gathering and handling" expense in the purchase contract, was a transportation service and that Central was not involved in the gathering or handling of any oil on the Dugas & LeBlanc Lease. Mr. Barden attested, as did Mr. Milazzo, that Central does not bill Mantle separately for the $1.80 per barrel, but, instead, the price paid by Central to purchase Mantle's oil is reduced by that amount.

We find that the statute is clear and unambiguous, and it was properly applied in the manner that Mantle paid its tax. Mantle computed its severance taxes on the actual amounts it received from Central, i.e., "the gross receipts received from the first purchaser." See LSA-R.S. 47:633(7)(a). The $1.80 per barrel amount in the purchase agreement is not a post-sale "deduction" as asserted by the Department. Rather, the contract price paid by Central to Mantle was a negotiated price between seller and purchaser, and, according to the price formula, the $1.80 per barrel amount is included in the calculations to determine the payment price due Mantle. Mantle sold its oil in the field at the well, and the cost of transportation was borne by Central. Mantle, as the seller, did not take any transportation deduction in the computation of its severance tax, as it did not transport the oil to the purchaser.

Mantle properly computed its severance taxes on the actual amounts that it received from Central, i.e., "the gross receipts received from the first purchaser."

Further, there is nothing to indicate that this was not an arms-length transaction. Accordingly, we find no genuine issue of material fact, and, under the plain language of the severance tax statute, the gross receipts received from Central equaled the amount actually paid pursuant to the purchase agreement. Mantle paid oil severance taxes based on the payments received from Central, and the Department's arguments regarding the Dugas & LeBlanc Well are without merit.

The Roberts Well

Regarding the Roberts Well, the Department argues that Mantle was unable to produce contracts or other sufficient supporting documentation with Plains in response to the Department's audit request. The Department further argues that, even when there is adequate documentation of the price, the severance tax shall be calculated based on the higher of gross receipts or the posted field price. See LSA-R.S. 47:633(7)(a). It contends that since there was no specific field price for this field, the area price became the posted field price. In its audit, the Department identified Platts US Crude Wire-Oil index at LLS Oil Spot at St. James Terminal as the posted field price applicable to the Roberts Well and adjusted the reported value of the oil from the Roberts Well.

Upon our review of the evidence in support of and in opposition to the motion for summary judgment, it is clear that there was no posted field price in the LeBlanc Field in Allen Parish where the Roberts well is located. However, rather than relying on the second option under LSA-R.S. 47:633(7)(a) for gross receipts, which information was supplied by Mantle to the Department after the audit, the Department chose instead to select another field approximately 130 miles from where the well was located to use as a posted field price, but only for those months that the St. James Field posted price was higher than the gross receipts. Although the Department acknowledges that the field price in St. James Parish is not an actual posted price in the LeBlanc Field, it argues instead that it is an "area price" that includes the LeBlanc Field and therefore became the "posted field price." Avra Gauthier, a tax auditor with the Louisiana Department of Revenue who reviewed this matter, stated in her affidavit that, "[i]n the absence of a contract, and pursuant to applicable regulations," she calculated the price per barrel using the St. James Field. This was the only basis given for the use of the "area price."

The Louisiana Administrative Code, Title 61, Part I, § 2903 A, defines a "posted field price" as, the following:

b. Posted Field Price -a statement of crude oil prices circulated among buyers and sellers of crude petroleum and is generally known by buyers and sellers within the field as being the posted price. The posted field price is the actual price of crude petroleum advertised for a field. The area price is a statement of crude oil prices circulated among buyers and sellers of crude petroleum listing prices for different areas of the state, usually listed as north Louisiana and south Louisiana, and generally known among buyers and sellers within the area as the posted price. This area price is the beginning price for crude petroleum of an area before adjustments for kind and quality (including, but not limited to, gravity adjustments) of the crude petroleum. When no actual posted field price is advertised or issued by a purchaser, the area price less adjustments for kind or quality (including, but not limited to, gravity adjustments) becomes the posted field price.

Mr. Barden testified that in reviewing industry publications, he had never seen a posted field price for the LeBlanc Field. He also testified that in reviewing prices in the area, Plains was paying a comparable and "fair price" for the oil. In his affidavit, he attested that because there was no posted price for the LeBlanc Field, Mantle paid severance taxes based on the price it actually received from Plains for the sale of the oil from the Roberts Well.

The Department offered no evidence to show that any adjustments "for kind or quality (including, but not limited to, gravity adjustments)" were made to the area price to establish a posted field price. Further, according to the regulation, "the area price is the beginning price for crude petroleum of an area before adjustments ... of the crude petroleum." We find that the Department failed to establish the area field price less adjustments and, accordingly, failed to establish that the field price in St. James Parish was the actual posted price for the LeBlanc Field. Because there was no posted field price, Mantle calculated the value of the oil based on the "gross receipts received from the first purchaser" pursuant to LSA-R.S. 47:633(7)(a). We find no error in this determination.

There being no genuine issues of material fact, the trial court correctly granted summary judgment in favor of Mantle. Mantle is entitled to a refund of the severance taxes paid under protest in the amount of $73,461.31.

CONCLUSION

For the foregoing reasons, we affirm the April 28, 2017 judgment of the trial court, granting summary judgment in favor of Mantle Oil & Gas, LLC, ordering a refund of oil severance taxes paid under protest, and dismissing the matter with prejudice. Costs of this appeal in the amount of $2,831.00 are assessed against the Louisiana Department of Revenue.

AFFIRMED.

      As is customary, Central delivers the severance tax payments to the Department on Mantle's behalf. The purchase contract provides that "Central shall pay 100% of the proceeds, less applicable taxes, to Mantle."

      The 2015 Comments to LSA-C.C.P. art. 966 provide that Subparagraph A(4) "contains the exclusive list of documents that may be filed in support of or in opposition to a motion for summary judgment. This Subparagraph intentionally does not allow the filing of documents that are not included in the exclusive list, such as photographs, pictures, video images, or contracts, unless they are properly authenticated by an affidavit or deposition to which they are attached."

      Louisiana Revised Statutes 47:633(7)(a) provides:
      The taxes on natural resources severed from the soil or water levied by R.S. 47:631 shall be predicated on the quantity or value of the products or resources severed and shall be paid at the following rates:
      * * *
      (7)(a) On oil twelve and one-half percentum of its value at the time and place of severance. Such value shall be the higher of (1) the gross receipts received from the first purchaser, less charges for trucking, barging and pipeline fees, or (2) the posted field price. In the absence of an arms length transaction or a posted field price, the value shall be the severer's gross income from the property as determined by R.S. 47:158(C).

      Louisiana Administrative Code, Title 61, Part I, § 2903 includes a definition of "value," which provides, in pertinent part:
      Value -with respect to oil and/or condensate, the value shall be the higher of the gross receipts received from the first purchaser by the producer or the posted field price.
      a. Gross Receipts -the total amount of payment:
      i. received from the first purchaser in an arm's length transaction[.]

      The RIB provides that it "is an informal statement of information issued for the public and employees that is general in nature. A RIB does not have the force and effect of law and is not binding on the public or the Department."

      Further, the Administrative Code, Title 61, Part I, § 2903, defines "transportation costs," included in its definition of "value," as:
      h. Transportation Costs -there shall be deducted from the value determined under the foregoing provisions the charges for trucking, barging, and pipeline fees actually charged the producer. In the event the producer transports the oil and/or condensate by his own facilities, $0.25 per barrel shall be deemed to be a reasonable charge for transportation and may be deducted from the value computed under the foregoing provisions. The producer can deduct either the $0.25 per barrel or actual transportation charges billed by third parties but not both. Should it become apparent the $0.25 per barrel charge is inequitable or unreasonable, the secretary may prospectively redetermine the transportation charge to be allowed when the producer transports the oil and/or condensate in his own facilities.
      The RIB also defines "transportation" to mean "a substantial movement of oil or condensate by truck, barge, or pipeline to a point of sale or delivery off the lease."

      As to the Department's argument that Central is not a "third party" under the regulation or RIB authorized to deduct transportation costs, the regulation authorizes the producer to either deduct $.25 per barrel if it transports the oil by its own facilities or actual transportation charges billed by third parties but not both. La. Admin Code, Title 61, Part I, § 2903. The RIB refers to transportation costs charged by those other than the producer as "actual transportation charges billed by third-parties." RIB No. 08-015 (6/30/08).

      See Avanti Exploration, LLC v. Louisiana Department of Revenue , Docket No. 9608D (La. Bd. Tax App. 12-6-17) (http://labta.louisiana.gov/decisions.htm), in which the Board of Tax Appeals, under similar facts, stated that "even if we were to assume that the transportation expenses incurred by the first purchaser should somehow be artificially included in the 'gross receipts received from the first purchaser' for purposes of the severance tax base, the statute would nonetheless grant a deduction from [the seller's] gross receipts for a like amount as a 'charge for trucking, barging and pipeline fees.' "

      We pretermit as unnecessary any discussion as to the authenticity of certain documents that Mantle received from Plains, copies of which were attached to Mr. Barden's affidavit. The Department made no argument and offered no evidence that the price that Mantle actually received from Plains for the sale of the oil produced from the Roberts Well was incorrect.