
    LOUISIANA POWER & LIGHT COMPANY and Combustion Engineering, Inc. v. The PARISH SCHOOL BOARD OF the PARISH OF ST. CHARLES, Individually and as Collecting Agent for the Parish of St. Charles, et al.
    No. 93-C-249.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 11, 1994.
    Writ Denied April 22, 1994.
    
      Eugene G. Taggart, Anne L. Lewis, New Orleans, for plaintiffs/appellants.
    Roy M. Lilly, Jr., Baton Rouge, for defendants/appellees.
    Before KLIEBERT, BOWES and CANNELLA, JJ.
   jiCANNELLA, Judge.

The issue presented in this case is whether a final judgment providing for “interest earned on the money” can be “interpreted” to mean the statutory rate of interest provided by law. The trial court ruled that such an “interpretation” of the judgment is actually a “modification” of a final judgment, which is not permitted. For the reasons which follow, we affirm.

This case has been before this court on two prior occasions, on different issues. St. Charles Parish Sch. Bd. v. La. Power & Light, 465 So.2d 93 (La.App. 5th Cir.), units denied, 466 So.2d 1302 (La.1985); and Louisiana Power and Light v. St. Charles Parish Sch. Bd., 597 So.2d 578 (La.App. 5th Cir.), writs denied, 604 So.2d 1316 (La.1992). The facts involved are set out therein in detail and will not be repeated here except insofar as they are pertinent to the issues before us.

The action originated as a rule for taxes filed by the St. Charles Parish School Board (School Board), the local taxing authority, against Louisiana Power & Light Company (LP & L) and Combustion Engineering (C.E.). After service of the rule, LP & L and C.E. sought to pay the amount demanded, under protest. The School Board, citing La.R.S. 47:1561 which prohibits the payment under protest in certain circumstances, declined to accept the Igpayment. Ultimately the district court ordered the School Board to accept payment under protest and this court affirmed that ruling. St. Charles Parish School Bd. v. Louisiana Power and Light, supra.

After payment was accepted, LP & L filed a petition for refund of the taxes paid under protest, plus legal interest. The trial court found that LP & L was entitled to a refund of the payments made under protest and rendered judgment, in pertinent part, providing:

IT IS ORDERED, ADJUDGED AND DECREED that the Taxpayers be reimbursed for the sale/use taxes paid under protest and for the interest earned on the money; ...

The School Board appealed and this court affirmed the judgment. Louisiana Power and Light v. St. Charles Parish Sch. Bd., supra. The School Board sought writs in the state Supreme Court and writs were denied on October 2, 1992. Louisiana Power and Light v. St. Charles Parish Sch. Bd., supra.

On October 14, 1992, after the judgment became final, LP & L sent a demand letter to the School Board requesting the refund of the taxes paid under protest and interest computed at the statutory rate in accordance with La.R.S. 33:2718. The School Board refused to refund interest at the statutory rate and instead computed the interest according to the bank rate that was actually earned and paid on the money. (The School Board had deposited the tax payments made under protest into four interest bearing escrow accounts.) The School Board issued four checks to LP & L based on its calculations of earned interest, and by agreement between both parties, LP & L accepted and negotiated the checks, reserving its right to contest the interest computation.

On November 10, 1992, LP & L filed a Rule For Interpretation Of Judgment. On motion of the School Board, Judge Joel Chaisson, lathe trial judge that rendered the judgment, recused himself and the case was reallotted to Judge Mary Ann Vial Lemmon. Oral argument on the rule was heard on February 17, 1993 and judgment was rendered on February 25, 1993 dismissing the rule. Therein the court found that “the relief sought by movers would require modification, not interpretation, of the Judgment filed herein on the 26th day of April, 1991, and that such modification was possible only by appeal.”

LP & L sought writs from that ruling which were granted by this court. The record was lodged and briefs were submitted.

LP & L argues that under La.R.S. 33:2718(A) interest is due on any refund for taxes paid under protest at the legal rate provided by law. Therefore, LP & L argues that since the legal rate of interest is statutorily required, the judgment in question should be so “interpreted” to require it.

The School Board argues that the trial court was correct in finding that the relief LP & L seeks is not for an “interpretation” of the judgment, but rather a “modification” of a final judgment which is not permissible. The School Board contends that, even if LP & L were correct about them interpretation of the statutory provisions, which the School board does not concede, the judgment in question nevertheless expressly provided that the taxpayer should be reimbursed only for “the interest earned on the money.” Whether legally correct or not, the School Board argues, the judgment is final and only enforceable as written. Furthermore, the School Board argues that under La.R.S. 33:2718(B), LP & L could have been awarded no interest on the refund if it were determined that the taxpayer deliberately overpaid a tax in order to derive the benefit of the interest allowed by law. Therefore, the judgment as written was within the legal authority of the trial court. In the alternative, the School Board argues that LP & L is not entitled to the “interpretation” it seeks without giving the school board an opportunity to prove that LP & L is due no interest. We agree with the School Board.

UThe judgment in question provided for reimbursement of “the interest earned on the money.” This judgment is final. The substance of a final judgment may not be amended. La.C.C.P. art. 1951. The terms “legal interest” and “interest earned” are different terms with distinctly different meanings. The trial court used the term “interest earned”, whether legally correct or not, and that judgment is now final. Relator’s remedy, in order to obtain “legal interest”, if it were dissatisfied with the judgment as written, was either by motion for new trial or by appeal. LP & L sought neither. To hold now that LP & L is entitled to “legal interest” would be to allow a substantive amendment of a final judgment, contrary to law.

Furthermore, as pointed out by the School Board, it did not appeal the interest award because it was satisfied with paying the “interest earned” as provided in the judgment. The court cannot now change the judgment to “legal interest” without affording the School Board the opportunity to establish that, under La.R.S. 33:2718(B), no interest is due on the refund.

Accordingly, we find no error in the trial court’s action, dismissing relator’s Rule for Interpretation of Judgment, as requiring an impermissible “modification” of the judgment, rather than an interpretation, and we affirm that ruling.

AFFIRMED.

BOWES, J., dissents with reasons.

hBOWES, Judge,

dissenting with reasons.

I disagree with the conclusions and findings reached by my esteemed and learned colleagues of the majority for the following reasons.

LSA-R.S. 33:2718 states as follows:

A. Each political subdivision, as that term is defined in Article VI, Section 44(2) of the Constitution of Louisiana, shall compute on all refunds or credits and allow interest as part of the refund or credit as follows:
(1) From date of payment of the taxes, but prior to submission by the taxpayer of a claim for refund, interest shall be computed at a rate of not less than two per cent per annum.
(2) From date of submission by the taxpayer of a claim for refund, or from payment under protest, or from the date that the taxpayer gave the political subdivision notice of the taxpayer’s intention to file suit for the recovery of any taxes paid, interest shall be at the rate established pursuant to Civil Code Article 292Jp(B)(S), per year [which defines legal interest and rate thereof].
(3) The interest rate provided for. in Paragraph (2) of this Section shall not be applicable for a sixty day period from the date the taxpayer makes a claim for refund, if a refund is the result of the taxpayer’s administrative error; however, the interest for this sixty day period shall be computed under the provisions of Paragraph (1) of this Section.
B. No interest on refunds or credits shall be allowed if it is determined that a person has deliberately overpaid a tax in order to derive the benefit of the interest allowed by this Section. Payments of interest authorized by this Section shall be made from funds derived from current collections of the tax to be refunded or credited. [Emphasis supplied].

J2LSA-C.C. art. 2924(B)(3)(a) delineates the method of computing legal interest.

There is nothing in the record, including the reasons for judgment, which indicate the thoughts of the trial judge on this issue. I conclude, however, that since LSA-R.S. 33:2718, supra, makes mandatory the payment of legal interest on all refunds or credits of taxes paid under protest, that the trial judge’s intention was to award to- LP & L that to which it was automatically entitled by statute.

Our courts have continuously held that it is proper to consider the pleadings, subject matter of an action, reasons for judgment and other matters of record in order to arrive at an interpretation consistent with the proper decree on the facts and law presented. State Dept. of Transp. & Dev. v. Sugarland Ventures, Inc., 476 So.2d 970 (La.App. 1st Cir.1985).
Brown v. Mitchell Homes, 620 So.2d 1234 (La.App. 5 Cir.1988).
[Emphasis supplied.]

In considering the subject matter of the present action, as well as the pleadings, I construe the judgment as providing for the interest mandatorily due under the law and for which LP & L prayed. The fact that the trial court used the phrase “interest earned,” while clouding the issue, does not alter this conclusion.

l.sThe situation is analogous to interest on damages for tort actions. LSA-R.S. 13:4203 holds that “Legal Interest shall attach from date of judicial demand, on all judgments, sounding in damages, ‘ex delicto,’ which may be rendered by any of the courts.” Legal interest on these judgments accrue automatically and is mandatory, whether prayed for in the petition or mentioned in the judgment. See Cooley v. Allstate Ins. Co., 443 So.2d 739 (La.App. 4 Cir.1984); Steele v. St. Paul Fire & Marine Ins. Co., 371 So.2d 843 (La.App. 3 Cir.1979).

There are other actions on which interest mandatorily and automatically attaches to a judgment. State, Department of Highways v. Busch, 254 La. 541, 225 So.2d 208 (1969) dealt with interest due on a judgment involving damages in an expropriation case. The statute in question, LSA-R.S. 48:455, provides as follows:

The judgment rendered therein shall include, as part of the just compensation awarded, interest at the rate of five per centum per annum on the amount finally awarded as of the date title vests in the plaintiff to the date of payment; but interest shall not be allowed on so much thereof as has been deposited in the registry of the court.

[Emphasis supplied.]

The court said that part of the purpose of the statute was to give the owner an award of interest as part of the compensation so that he need not pray for interest. In a footnote to that statement, the court said:

Code of Civil Procedure Article 1921 provides:
The court shall award interest in the judgment as prayed for or as provided by law.
It is noted in the comment under that article that:
The phrase ‘as provided by law’ will cover the exception in the case of tort claims, since in these cases interest attaches automatically, without being prayed for.
It is clear that R.S. 48:455 is another exception which, as to the owner, provides interest that need not be prayed for.

In the present case, as I find hereinabove, LP & L did pray for legal interest; however, that legal interest is also specifically provided for by LSA-R.S. 33:2718; Uand therefore, under either scenario, interest at the rate of legal interest automatically affixes to a judgment in a refund of taxes paid under protest. Consequently, even if LP & L had not prayed for legal interest, and the judgment had not provided for interest, nevertheless, legal interest is still a mandatory part of the judgment in favor of relator.

As the court found in Salem v. Maise, 483 So.2d 1192-93 (La.App. 4 Cir.1986):

LSA-C.C.P. Art. 1951 permits the trial court to amend a final judgment at any time to alter phraseology of the judgment, but not the substance. The amendment in question did not change the substance of the judgment, it simply altered the phraseology to supply missing words which were obviously intended but omitted in error. We conclude that the tidal court was authorized by Art. 1951 to make the change.

An examination of the applicable law, the phraseology of the judgment and the record, compels me to conclude that when the trial court used the words “interest earned” he intended to, and necessarily did in fact, award interest on the judgment at the rate of legal interest because he was required and compelled to do so by the prayer of the pleadings and by the statutes quoted herein-above.

Therefore, the motion for clarification was just that — a motion to have the district judge supply the words that were omitted in error. This action does not require a motion for a new trial or an appeal, since altering the phraseology in this case does not constitute a substantive change in the judgment. Nothing is added to or taken from the original judgment; rather, an interpretation applying the mandatory law is required.

Accordingly, I find that the trial court erred in denying the motion to clarify and I would order the judgment clarified to find that relators are entitled to statutory legal interest in accordance with LSA-R.S. 33:2718(A)(2).

For these reasons, I respectfully dissent. 
      
      . LP & L also included in its petition a request for a declaratory judgment concerning their liability for future taxes. That portion of the case is not relevant to the matter before us here.
     
      
      . LSA-C.C. art. 2924(B)(3)(a) provides as follows:
      On and after January 1, 1988, the rate shall be equal to the rate as published annually, as set forth below, by the commissioner of financial institutions. The commissioner of financial institutions shall compute, on the first day of October of each year, the prime or reference rate by taking the average of the prime or reference rates established by the financial institutions enumerated hereafter, or their successors, namely Chase Manhattan Bank, N.A., Citibank, N.A., Morgan Guaranty Trust Company of New York, Manufacturers Hanover Trust Company, and Bank of America National Trust and Savings Association, for their most favored corporate clients. The prime or reference rates used in this calculation shall be obtained no later than the seventh day of October. The effective judicial interest rate for the calendar year following the calculation date shall be one percentage point above the average prime or reference rate of the five financial institutions named in this Subpara-graph or their successors.
     