author: |,TERRI F. LOVE, Judge.

text:
    Elena C. Garcia, Wife of Diego Antonio RODRIGUEZ v. Diego Antonio RODRIGUEZ.
    No. 2002-CA-0439.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 29, 2003.

      Rachel C. Marinovich, New Orleans, LA, for PlaintiffAppellant.
    Janet M. Ahern, Mitchell Ahern, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge CHARLES R. JONES, Judge TERRI P. LOVE, Judge MAX N. TOBIAS JR.).
   |,TERRI F. LOVE, Judge.

The instant case involves a divorce proceeding and subsequent child support determination. Elena Garcia Rodriguez, appellant, argues that the trial court committed manifest error in “failing to determine the proper amount of child support” assessed to her husband, Diego Rodriguez, for the interim period between filing the initial action and the first hearing on child support. Furthermore, Ms. Rodriguez asserts that the trial court erred in failing to award any child support retroactive to the date of filing this action. Diego Rodriguez, in cross-appeal, argues that the trial court erred in the award of alimony pendent lite, in failing to award retroactive child support, in failing to order payment of extraordinary medical expenses, and in awarding the state and federal tax exemptions. For the following reasons, we affirm in part and reverse in part the ruling of the trial court; we remand for further proceedings.

FACTUAL AND PROCEDURAL HISTORY

On December 12, 1997, Elena Garcia Rodriguez, wife of Diego Antonio Rodriguez, filed a petition for divorce, custody, child support, alimony pendente lite, permanent alimony, use of the matrimonial domicile, partition of community property, court costs and attorney fees, and injunc-tive relief. The parties have four | ^children; three are minors. On July 8, 1998, the parties appeared in court and orally entered into an Interim Consent Judgment, which ordered that Elena Garcia Rodriguez would have temporary custody of the children pending a custody evaluation, temporary use and occupancy of the matrimonial home, and that Diego Rodriguez was to pay $1,000.00 per month in interim child support, pending a hearing. Elena Garcia Rodriguez did not sign the Interim Consent Judgment until March 10, 1999. The judgment stated in part:

It is further ordered, adjudged and decreed that Diego Antonio Rodriguez-Abellon shall pay interim child support in the amount of one thousand ($1,000.00) dollars per month to Elena Garcia Rodriguez. Mrs. Rodriguez shall be responsible to pay the first mortgage on the community home with said child support payment. Should Mrs. Rodriguez be late on any one payment, Mr. Rodriguez-Abellon shall send notice to Mrs. Rodriguez that she is to make the account immediately current, and Mr. Rodriguez-Abellon shall return to paying the first mortgage with the difference being paid directly to Elena Rodriguez as child support. The award of child support is a determination without prejudice to either party and each party reserved all rights to claim retroactivity. . .In the event that Mr. Rodriguez-Abellon makes the mortgage payments directly, that arrangement shall remain in effect until the partition of the community property, at which time he will resume paying whatever child support award is currently in effect to Elena Garcia Rodriguez.

A Judgment of Divorce was entered on December 8, 1998. A hearing to determine child custody and support was held on April 20 and 25, 2000. Judgment was rendered in open court, and signed on May 11, 2000, effectively terminating the conditions of the Interim Consent Judgment, which awarded Elena Garcia Rodriguez custody of the children and use of the matrimonial home. The terms of the May 11, 2000, judgment designated Diego Rodriguez as custodial parent, and awarded him child support in the amount of $200.00 per month for nine months of the year, forty percent of the children’s private school tuition to be paid by Elena Garcia Rodriguez, and permanent use of the matrimonial home, effective June 1, |a2000. In addition, Elena Garcia Rodriguez was awarded alimony pendente lite in the amount of $850.00 per month beginning June 1, 2000 and ending May 1, 2001.

Diego Rodriguez filed a motion for partial new trial seeking an increase in child support awarded and a decrease in spousal support awarded, and a change of the tax dependency exemptions allowed for the minor children. On September 19, 2000, the trial court granted Diego Rodriguez’s motion for partial new trial, limited to the issues of child support and the federal and state tax dependency deduction of the minor children. Diego Rodriguez retained permanent custody of the children.

A hearing on the partial new trial was held on February 5 and 15, 2001. Judgment was signed on March 20, 2001 awarding Diego Rodriguez monthly child support in the amount of $983.00, effective April 1, 2001. The previous order providing that each of the parties be allowed to claim two of the minor children was amended to allow Diego Rodriguez to claim the three youngest children, and Elena Garcia Rodriguez would be allowed to claim the oldest child for her final year of minority.

On April 16, 2001, Elena Garcia Rodriguez filed a Petition and Order for Appeal, seeking review of the original judgment rendered on May 11, 2000, and the denial of her Motion for New Trial on April 3, 2001, as well as the judgment on the partial new trial rendered on March 20, 2001.

In this appeal, Elena Garcia Rodriguez seeks review of the judgment rendered May 11, 2000, which denied her request for retroactive payment of child support awarded in the Interim Consent Agreement, for the time period between filing the initial action, on December 12, 1997, and the judgment entered on May 11, 2000, a twenty-nine month period. Elena Garcia Rodriguez argues that the trial court did not assess the proper amount of child support to be paid by Diego | .Rodriguez during that period; further, she argues that since he chose to pay the first mortgage on the matrimonial home instead of making payments directly to her, she is entitled to retroactive payment for the period between December 12, 1997 and May 11, 2000.

Diego Rodriguez, in cross-appeal, seeks review of the judgments of May 11, 2000 and March 20, 2001. He argues specifically that the trial court erred in its award of alimony pendente lite to Elena Rodriguez. Diego Rodriguez further argues that the trial court failed to award child support retroactive to June 1, 2000, when he was designated the domiciliary parent of the minor children. He argues that the trial court erred in failing to order payment of extraordinary medical expenses. Finally, Diego Rodriguez asserts that the trial court erred when it awarded Elena Rodriguez the right to claim their eldest child as a dependent for federal and state income tax purposes.

DISCUSSION

In her assignment of error, Elena Garcia Rodriguez asserts that she was entitled to a greater amount of interim child support and the court should have increased the interim award retroactively.

Although she never cites to evidence in the record, Elena Garcia Rodriguez asserts based on her husband’s income she was entitled to $1,696.08, plus seventy-five percent of the school tuition. Elena Garcia Rodriguez asserts that Diego Rodriguez paid only the first mortgage on the matrimonial home in the amount of $956.00 per month instead of paying $1,000.00 directly to her, and that this payment of the house note should only give him credit for his child support obligation for one-half of the note, or $478.00, per month, considering Diego Rodriguez was eventually awarded the matrimonial home.

IsElena Garcia Rodriguez argues evidence was presented that Diego Rodriguez earned $7,242.21 per month at the time of the first hearing in April of 2000, and that she worked for her parents at a salary of $2,500.00 per month, which included use of an automobile. She further argues that she was forced to live off credit card advances and loans from her family, which she says account for the $4,500.00 per month additional income deposited into her checking account concurrent with the litigation. Elena Garcia Rodriguez asserts that the child support for the period in question should have been determined using that income of the parties, which she claims is $7,242.21 for Diego Rodriguez and $2,500.00 for herself. She claims that based on these figures, Diego Rodriguez should have been ordered to pay child support for the four minor children of $1,696.08 per month, plus seventy-five percent of the school tuition. Elena Garcia Rodriguez argues that $1,696.08 should be awarded retroactively for the full twenty-nine month period in question, a total award of $49,186.32.

The Interim Consent Judgment, which was entered on July 8, 1998, and signed by Elena Garcia Rodriguez, awarded her, on a temporary basis, the matrimonial home, custody of the minor children, and an award of interim child support of $1,000.00 per month to be paid by Diego Rodriguez, until the above matters could be heard at trial. Our review of the record shows that Elena Garcia Rodriguez agreed to the terms of the Interim Consent Judgment despite her delay in signing. There is no record of Elena Garcia Rodriguez attempting to modify the amount of interim child support. Further, this Court in Ventura v. Rubio, 2000-0682, p. 10 (La.App. 4 Cir. 3/16/01), 785 So.2d 880, 888, discussed the determination of interim child support. As we noted in that case, a court shall set interim support only when verified income statements are furnished. We find that lfisuch statements were provided to the trial court and after considering the law, evidence, and the consent of the parties, the trial court did not commit manifest error in setting the interim child support award as stated in the Interim Consent Agreement.

Elena Garcia Rodriguez bases her entire argument for retroactivity on the premise that instead of paying child support directly to her, Diego Rodriguez instead paid the first mortgage on the matrimonial home for twenty-nine months. Since he was eventually awarded the home, she argues that she is therefore entitled to retroactive payment for the months between filing this action and May 31, 2000. As stated above in the Interim Consent Judgment, Diego Rodriguez had the option to pay the first mortgage until the partition of the community property, which is what he did. Contrary to Elena Garcia Rodriguez’s protestations, the fact that the partition of the community property ultimately gave Diego Rodriguez sole ownership of the matrimonial home has no bearing on the Interim Consent Judgment. Elena Garcia Rodriguez is not entitled to a retroactive payment of child support from that agreement based on her arguments.

This Court in Pellerin v. Pellerin, 97-2085 (La.App. 4 Cir. 6/17/98), 715 So.2d 617, discussed the provisions of La. R.S. 9:315.21, which states in part:

(A) Except for good cause shown, a judgment awarding, modifying or revoking an interim child support allowance shall be retroactive to the date of judicial demand.
(B) (1) A judgment that initially awards or denies final child support is effective as of the date the judgment is signed and terminates an interim child support allowance as of that date.
(2) If an interim child support allowance is not in effect on the date of the judgment awarding final child support, the judgment shall be retroactive to the date of judicial demand, except for good cause shown.

|7As this Court found in Pellerin, the statute allows retroactive payment of child support only if there is a modification or revocation of the interim child support allowance. This does not exist in this case, as the interim award was unchanged for nearly two years. Elena Garcia Rodriguez fervently argues that the statement in the interim consent judgment regarding retro-activity gives her the right to demand retroactive payment; however, we find that this statement is not in conflict with the statute and that the rule set out in the statute is controlling.

Further, this Court in Pellerin held that a final award of child support is not a modification of the interim award but is a new award that terminates the interim award. Therefore, there can be no retro-activity of an unmodified interim child support award after the final award is set.

As the facts of this case show, Elena Garcia Rodriguez did not modify the interim child support award and as such is not entitled to retroactivity under La. R.S. 9:315.21(A), and since there was an interim agreement, she is not entitled to retroac-tivity under 9:815.21(B)(2); hence, all of Elena Garcia Rodriguez’s claims of retro-activity are completely without merit. We find that the trial court did not commit manifest error in finding that she had no claim to retroactivity for the interim child support agreement.

In his first assignment of error, Diego Rodriguez asserts that the trial court erred in awarding alimony pendente lite to Elena Rodriguez.

Diego Rodriguez argues that the award of alimony pendente lite was awarded after the divorce was finalized, in violation of Wascom, v. Wascom, 96-0125 (La.4/8/97), 691 So.2d 678. He argues alternatively that the award should be limited to the time period between the couple’s physical separation in June 1998, |Rthrough the time the divorce was made final in December of 1998. Finally, he argues Elena Garcia Rodriguez did not establish her financial need for the award.

In Wascom, the Louisiana Supreme Court concluded, “alimony pendente lite may not be awarded for any period of time after the rendition of a final judgment of divorce.” Diego Rodriguez argues this holding precludes Elena Garcia Rodriguez from being entitled to the award of alimony pendente lite by the trial court. However, Diego Rodriguez misreads the case. The language of Wascom prohibits awards of alimony pendente lite for any “period of time after the rendition of a final judgment of divorce.” In the instant case the original petition for divorce was filed in December 1997 and rendition of the final judgment was granted one year later in December of 1998. The first hearing on support was not held until April 20, 2000. In the Interim Consent Judgment of March 10, 1998, Elena Garcia Rodriguez reserved her right to litigate the issue of interim spousal support, however because of numerous delays, the first hearing on such issues didn’t occur until over two years later. In the testimony, the trial court makes clear that the spousal support awarded to Elena Garcia Rodriguez was alimony pendente lite. The fact that this award was made retroactively and was to be paid in monthly installments between June 1, 2000 and May 1, 2001, does not mean the award is in conflict with the Supreme Court’s ruling. The award was for the time period preceding the finalization of the divorce in which Diego Rodriguez was not paying alimony pendente lite to Elena Garcia Rodriguez. Therefore we find that the award of alimony pendente lite was proper.

Diego Rodriguez’s argument that if the award for alimony pendente lite is found to be proper, that it should be restricted to the time period of actual physical separation is not persuasive. The Interim Consent Judgment gave Elena Garcia |flRodriguez use of the matrimonial home. Diego Rodriguez did not vacate the home as agreed and instead, as the record shows, barricaded himself in one part of the house by use of a dead bolt lock. During this time, Diego Rodriguez did not contribute to any of the household expenses, including groceries, utilities, phone service, water, etc. It wasn’t until Diego Rodriguez took a trip to Europe in May of 1998, that Elena Garcia Rodriguez was able to get him out of the matrimonial home. As such, Diego Rodriguez’s presence in the matrimonial home between December 1997 and June 1998 does not indicate that he provided any support to his wife or family for that time period. He only paid the mortgage on the house in lieu of child support payments to Elena Garcia Rodriguez, which was his choice under the Interim Consent Judgment, discussed above. Given his lack of support to Elena Garcia Rodriguez even during the time of his physical occupation of the matrimonial home, we find that the trial court did not err in awarding alimony pendente lite for the twelve months between December 1997 and December 1998.

Diego Rodriguez further asserts that Elena Garcia Rodriguez failed to establish financial need for the award. The trial court is vested with much discretion in determining awards of spousal support. Such determinations will not be disturbed absent a clear abuse of discretion. McDermott v. McDermott, 32,014 (La.App. 2 Cir. 6/16/99), 741 So.2d 186, 188. In order to demonstrate need for interim periodic spousal support, the claimant spouse has the burden of proving that she lacks sufficient income to maintain the standard of living that she enjoyed while residing with her spouse. Thomey v. Thomey, 33,-000 (La.App. 2 Cir. 4/7/00), 756 So.2d 698, 702. Upon review of the record, we find that the trial court had sufficient evidence to assess Elena Garcia Rodriguez’s need during the period between December 1997 and December 1998. The trial court heard testimony Imfrom Timothy G. Murphy, a certified public accountant, who established Elena Garcia Rodriguez’s monthly expenses, and reviewed her bank and credit card statements, income tax returns, and records of loans made to Elena Garcia Rodriguez for the period between December 1997 and December 1998. Through this evidence Elena Garcia Rodriguez demonstrated that alone she lacked the income to maintain a standard of living equivalent to that which she enjoyed when she was still living with Diego Rodriguez as his wife. Our review of the record demonstrates that the trial court did not commit manifest error in finding that Elena Garcia Rodriguez had demonstrated financial need for alimony pendente lite.

In his second assignment of error, Diego Rodriguez asserts that the trial court failed to award child support retroactively to date of demand in conjunction with the award of custody.

Diego Rodriguez cites to La. R.S. 9:315.21 to support his argument for retro-activity. Specifically he highlights section (B)(2); however, we find that section (C) is more applicable in this instance. It states:

Except for good cause shown, a judgment modifying or revoking a final child support judgment shall be retroactive to the date of judicial demand.

On April 25, 2000, in open court, Diego Rodriguez was awarded custody as domiciliary parent beginning June 1, 2000. He was also awarded child support in the amount of $200 per month, plus 40 percent of the tuition obligation for the four children, also to begin on June 1, 2000. Diego Rodriguez filed a motion for a new trial on the issue of child support on May 8, 2000, after the trial court rendered judgment in open court but before a written judgment was signed. On March 20, 2001, the trial court issued a written judgment modifying its April 25, 2000 ruling, and awarded Diego Rodriguez child support in the amount of $983.00 per month, In payable in two equal installments of $491.50 on the 1st and 15th day of each month. The trial court made this order effective beginning April 1, 2001, and denied all requests for retroactivity. Diego Rodriguez argues that the modified final award of child support should be retroactive to the original award of child support, June 1, 2000. The trial court in its judgment of March 20, 2001, gave no reasons as to why it was not awarding retroactive child support, deviating from La. R.S. 9:315.21(C), and thus violating La. R.S. 9:315.1(B), which states that “the court shall give specific oral or written reasons for the deviation, including a finding as to the amount of support that would have been required under a mechanical application of the guidelines and the particular facts and circumstances that warranted a deviation from the guidelines.” Since no such reasons are present in the record, we find that the trial court erred in not awarding retroactive payment of the redetermined child support award. Diego Rodriguez is entitled to retroactive payment of the modified child support award to June 1, 2000.

In his third assignment of error, Diego Rodriguez argues that the trial court failed to order payment of extraordinary medical expenses proportionate to the parties’ respective child support obligation.

La. R.S. 9:315.5 states:

By agreement of the parties or order of the court, extraordinary medical expenses incurred on behalf of the child shall be added to the basic child support obligation.

This statute does not mandate that extraordinary medical expenses be added to the basic child support award in anticipation of possible future extraordinary medical expenses, but that if they are incurred they shall be added to the basic child support obligation. Since Diego Rodriguez has offered no evidence that such extraordinary | ^expenses exist, this assignment of error is irrelevant. We find no error of the trial court on this issue.

Finally, Diego Rodriguez asserts that the trial court erred by allowing Elena Garcia Rodriguez to claim their oldest child as a dependent for the last year of her minority as a federal and state income tax exemption.

La. R.S. 9:815.18, which provides for tax exemptions, states in part:

B. (1) The non-domiciliary party whose child support obligation is equal to or greater than fifty percent and equal to or less than seventy percent of the total child support obligation shall be entitled to claim the federal and state tax dependency deductions if, after a contradictory motion, the judge finds both of the following:
(a) No arrearages are owed by the obligor.
(b) The right to claim the dependency deductions or, in the case of multiple children, a part thereof, would substantially benefit the non-domiciliary party without significantly harming the domiciliary party.

At the first trial, the trial court awarded both Elena Garcia Rodriguez and Diego Rodriguez each the right to claim two of their four children for tax purposes. The trial court’s judgment in the partial new trial restricted Elena Garcia Rodriguez to claim only the eldest child in her final year of minority for tax purposes. In the case sub judice, it is not clear whether Elena Garcia Rodriguez’s child support obligation of $983.00 is greater than or equal to fifty percent of the total child support obligation. However, given the evidence in the record, we find no clear or manifest error in the trial court awarding Elena Garcia Rodriguez the tax exemption for one child. Although the statute above establishes when a party may claim federal and state tax dependency deductions, this statute does not preclude the trial court from awarding a party a federal and state tax dependency deduction as part of the child support obligation, as is the case here. We therefore conclude |13that there is adequate support in the record for the actions of the trial court on this issue.

CONCLUSION

For the foregoing reasons, we find that the trial court did not commit manifest error in either determining the amount of the interim child support award, or finding that Elena Garcia Rodriguez was not entitled to retroactive payment of the interim award after the final judgment was made. We further affirm the award of alimony pendente lite to Elena Garcia Rodriguez, and find that the trial court did not err in either failing to order payment of extraordinary medical expenses proportionate to the parties’ respective child support obligation or in awarding Elena Garcia Rodriguez the right to claim the eldest child as a federal and state tax dependency deduction. However, we reverse the trial court in part, and find that the modified child support awarded to Diego Rodriguez should be awarded retroactively to June 1, 2000.

AFFIRMED IN PART; REVERSED IN PART; REMANDED.


source: Caselaw Access Project

author: | MAMES F. McKAY III, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Elbert J. JONES.
    No. 2002-KA-1168.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 29, 2003.
    Harry F. Connick, District Attorney of Orleans Parish, Julie C. Tizzard, Assistant District Attorney of Orleans Parish, New Orleans, LA, for Plaintiff/Appellee.
    Mary Constance Hanes, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge CHARLES R. JONES, Judge JAMES F. McKAY III, Judge MICHAEL E. KIRBY).
   | MAMES F. McKAY III, Judge.

STATEMENT OF CASE

Defendant Elbert Jones was charged by bill of information on September 11, 2001, with one count of being a convicted felon with a firearm in violation of La. R.S. 14:95.1. Defendant pleaded not guilty at his September 21, 2001, arraignment. A motion hearing was held on September 28, 2001, after which the trial court found probable cause and denied the defendant’s motion to suppress the evidence. On October 18, 2001, a twelve-person jury found the defendant guilty of attempted possession of a firearm by a convicted felon, a violation of La. R.S. 14:95.1. On October 25, 2001, the trial court ordered a pre-sentence investigation on the defendant. On January 18, 2002, the defendant was sentenced to six years without the benefits of probation, parole or suspension of sentence, and credit for time served. On that same date, the trial court denied the defendant’s motion to reconsider sentence, and the defendant filed a written motion for appeal, which the trial court granted.

STATEMENT OF FACT

Sergeant Todd Morrell testified at the defendant’s motion hearing that on June 24, 2001, he responded to a dispatch call of a black male wearing a yellow | ¡.shirt and blue shorts in the 3000 block of Mandeville Street in possession of a gun. Sergeant Morrell further testified that when he arrived on the scene he observed several people on the left side of the street and he observed the defendant standing there wearing a yellow shirt and blue shorts. Sergeant Morrell testified that as he exited his vehicle to approach the defendant, the defendant began to walk away and appeared to be looking around in a nervous confused manner. Sergeant. Mor-rell called to the defendant to stop but the defendant walked faster. When Sergeant Morrell caught up with the defendant he had the defendant place his hands on a wall, and began to conduct a pat down search for his safety. During the search Sergeant Morrell removed a fully loaded automatic handgun from the waistband of the defendant’s pants. The defendant was then advised of his rights and arrested.

In a statement made before sentencing, the defendant stated to the court that pri- or to Sergeant Morrell’s arrival on the scene the defendant broke up an argument between two men, and he took the gun away from one of the men involved in the argument.

ERRORS PATENT

A review of the record revealed no errors patent.

DISCUSSION

ASSIGNMENT OF ERROR NUMBER 1

The defendant complains the trial court erred in denying his motion to suppress the evidence. Specifically, the police lacked the reasonable suspicion necessary to conduct an investigatory stop based on an anonymous call that an unknown person in certain clothing was in possession of a gun.

lain State v. Dank, 99-0390 pp. 4-5 (La.App. 4 Cir. 5/24/00), 764 So.2d 148, 154-155, this court addressed the issue of reasonable suspicion to support an investigatory stop of a suspect:

La.C.Cr.P. art. 215.1(A) provides that:

A law enforcement officer may stop a person in a public place whom he reasonably suspects is committing, has committed, or is about to commit an offense and may demand of him his name, address, and an explanation of his actions.
“Reasonable suspicion” to stop is something less than the probable cause required for an arrest, and the reviewing court must look to the facts and circumstances of each case to determine whether the detaining officer had sufficient facts within his knowledge to justify an infringement of the suspect’s rights. State v. Littles, 98-2517, p. 3 (La.App. 4 Cir. 9/15/99), 742 So.2d 735, 737; State v. Clay, 97-2858, p. 4 (La.App. 4 Cir. 3/17/99), 731 So.2d 414, 416, writ denied, 99-0969 (La.9/17/99), 747 So.2d 1096. Evidence derived from an unreasonable stop, i.e., seizure, will be excluded from trial. State v. Benjamin, 97-3065, p. 3 (La.12/1/98), 722 So.2d 988, 989; State v. Tyler, 98-1667. P. 4 (La.App. 4 Cir. 11/24/99), 749 So.2d 767, 770. In assessing the reasonableness of an investigatory stop, the court must balance the need for the stop against the invasion of privacy that it entails. See State v. Harris, 99-1434, pp. 2-3 (La.App. 4 Cir. 9/8/99), 744 So.2d 160, 162. The totality of the circumstances must be considered in determining whether reasonable suspicion exists. State v. Oliver, 99-1585, p. 4 (La.App. 4 Cir. 9/22/99), 752 So.2d 911, 914; State v. Mitchell, 98-1129, p. 9 (La.App. 4 Cir. 2/3/99), 731 So.2d 319, 326. The detaining officers must have knowledge of specific, articulable facts, which, if taken together with rational inferences from those facts, reasonably warrant the stop. State v. Dennis, 98-1016, p. 5 (La.App. 4 Cir. 9/22/99), 753 So.2d 296, 299; State v. Keller, 98-0502, p. 2 (La.App. 4 Cir. 3/10/99), 732 So.2d 77, 78. In reviewing the totality of the circumstances, the officer’s past experience, training and common sense may be considered in determining if his inferences from the facts at hand were reasonable. State v. Cook, 99-0091, p. 6 (La.App. 4 Cir. 5/5/99), 733 So.2d 1227, 1231; State v. Williams, 98-3059, p. 3 (La.App. 4 Cir. 3/3/99), 729] So.2d 142, 144. Deference should be given to the experience of the officers who were present at the time of the incident. State v. Ratliff, 98-0094, p. 3 (La.App. 4 Cir. 5/19/99), 737 So.2d 252, 254, writ denied, 99-1523 (La.10/29/99), 748 So.2d 1160.

The appellant argues that the tip did not give the officers reasonable suspicion to stop him, citing Florida v. J.L., 529 U.S. 266, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000), where the U.S. Supreme Court held that the officers did not have reasonable suspicion to conduct an investigatory stop. The police received an anonymous tip that a man at a certain location, dressed in a certain way, was carrying a gun. The officer went to that location and saw the defendant, who matched the description. Even though the officers did not see the defendant engage in any suspicious activity, they stopped and detained him based on the tip. The U.S. Supreme Court found that the anonymous tip, which merely described the defendant and noted his location, did not give the officers reasonable suspicion to stop him. The Court noted that anonymous tips such as the one in that case, which gave no predictive information, gave the officers no means to test the informant’s knowledge or credibility. The Court stated:

An accurate description of a subject’s readily observable location and appearance is of course reliable in this limited sense: It will help the police correctly identify the person whom the tipster means to accuse. Such a tip, however, does not show that the tipster has knowledge of concealed criminal activity. The reasonable suspicion here at issue requires that a tip be reliable in its assertion of illegality, not just in its tendency to identify a determinate person.

Id. at 272, 120 S.Ct. at 1379.

Likewise, in State v. Robertson, 97-2960 (La.10/20/98), 721 So.2d 1268, the anonymous tip noted that the defendant was selling drugs, described the vehicle the defendant drove, and noted where his vehicle would be parked when he was 1 mot using it to sell drugs. The officers went to that location and saw the vehicle just being driven away. The officers followed, and when the defendant stopped the vehicle, the officers detained him and called for a canine unit. Contraband was subsequently discovered. Upon review of the trial court’s denial of the motion to suppress the evidence and this court’s denial of writs from that refusal, the Court reversed, finding the corroboration of the “tip” did not give the officers reasonable suspicion to stop the defendant. The Court noted that the tip, being anonymous, lacked an indicia of reliability or basis of knowledge, and the officers’ failure to corroborate any claim of criminal activity gave them an insufficient basis for a finding of reasonable suspicion to support the stop. The Court noted:

We note that the police were not powerless to act on the non-predictive, anonymous tip they received. The officers could have set up more extensive surveillance of defendant until they observed suspicious or unusual behavior. Furthermore, if, after corroborating the readily observable facts, the officers had noticed unusual or suspicious conduct on defendant’s part, they would have had reasonable suspicion to detain him. These circumstances, however, were not present here. In the absence of any suspicious conduct or corroboration of information from which police could conclude that the anonymous informant’s allegation of criminal activity was reliable, we must conclude that there was no reasonable suspicion to detain defendant. The trial judge erred in holding otherwise.

Robertson, 98-2960 pp. 5-6, 721 So.2d at 1270-1271.

In State v. Morales, 583 So.2d 129 (La.App. 4 Cir.1991), this court found that a tip from an anonymous informant was sufficient to create reasonable suspicion to stop the defendant when the information from the tip was corroborated by independent police work. However, in State v. Belton, 441 So.2d 1195 (La.1983), The Louisiana Supreme Court stated:

IfiThe totality of the circumstances, the whole picture, must be considered in determining whether reasonable cause exists. (Citations omitted). Although flight, nervousness, or a startled look at the sight of a police officer is, by itself, insufficient to justify an investigatory stop, ... this type of conduct may be highly suspicious and, therefore, may be on of the factors leading to a finding of reasonable cause.

This Court in State v. Washington, 1999-1111 (La.App. 4 Cir. 3/21/01), 788 So.2d 477, found the defendant’s startled expression, flight by walking away, and presence in a known narcotics area gave the officers in the case reasonable suspicion to stop the defendant. Therefore, it appears the tip coupled with the defendant’s actions upon seeing Sergeant Mor-rell provided reasonable suspicion to stop the defendant. The trial court’s denial of the defendant’s motion to suppress should be affirmed.

Accordingly, for the above and foregoing reasons we affirm the defendant’s conviction and sentence.

AFFIRMED.


author: |,MAX N. TOBIAS, JR., Judge.

text:
    Steven MOORE v. CITY OF NEW ORLEANS, Public Works.
    No. 2002-CA-1036.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 29, 2003.

      Diane R. Lundeen, Lewis & Caplan, APLC, New Orleans, LA, for Plaintiff/Ap-pellee.
    Daryl J. Daigle, Wayne J. Fontana, Courtenay, Hunter & Fontana, L.L.P., New Orleans, LA, for Defendant/Appellant.
    (Court Composed of Judge CHARLES R. JONES, Judge TERRI F. LOVE, Judge MAX N. TOBIAS, JR.).
   |,MAX N. TOBIAS, JR., Judge.

Defendant, the City of New Orleans (“the City”), appeals a judgment of the Office of Workers’ Compensation rendered in favor of plaintiff/claimant, Steven Moore, awarding him medical and indemnity benefits, penalties, and attorney’s fees. Plaintiff answers the appeal, seeking additional supplemental earnings benefits, penalties, and attorney’s fees.

On 14 July 2000, plaintiff, a laborer employed by the City of New Orleans Public Works Department, injured himself lifting a concrete drainage pipe while in the course and scope of his employment. Immediately following the accident, the City sent plaintiff to Concentra Medical Center where Dabney M. Ewin, M.D. (“Dr. Ewin”) examined him. Dr. Ewin diagnosed plaintiffs injury as lumbar strain and recommended that he undergo physical therapy. Plaintiff underwent physical therapy at Concentra Medical Center on 14, 17, 18, 19, and 20 July 2000. After Dr. Ewin re-examined plaintiff at a follow-up visit on 18 July 2000, he prescribed additional physical therapy and allowed plaintiff to return to work with the following restrictions: (1) no repetitive lifting over 20 pounds; (2) no prolonged standing and/or walking longer than 6 hours; (3) no bending greater than 4 times |gper hour; (4) no pushing and/or pulling over 20 pounds of force; and, (5) no squatting and/or kneeling. Plaintiff never returned to work.

On 13 September 2000, plaintiff, choosing his own treating physician, went to the office of Stewart E. Altman, M.D., F.A.C.S. and Associates, where Mary Ma-thai, M.D., an associate of Dr. Altman, treated him. Dr. Altman’s office contacted the City seeking authorization for plaintiffs treatment; the City refused the request. Nevertheless, Dr. Mathai examined plaintiff and diagnosed him with having lumbar strain as a result of lifting the concrete pipe. Dr. Mathai prescribed medication, as well as moist heat packs, massages, and physical therapy. Plaintiff continued to receive treatment at Dr. Altman’s office on a weekly basis from 13 September 2000 through 21 December 2000. During that time, Dr. Mathai prescribed a lumbar corset for plaintiff, but the City refused to authorize payment for it. Dr. Mathai determined that plaintiff was temporarily totally disabled from work for the periods 13 September 2000 through 26 September 2000, 18 October 2000 through 8 November 2000, 8 November 2000 through 20 December 2000, and 20 December 2000 through 11 January 2001. On 10 April 2001, plaintiff returned to work at a new place of employment, earning more than ninety percent of his pre-injury wage.

Because the City failed to pay workers’ compensation benefits and refused to approve Dr. Altman and his associates as his treating physicians, plaintiff filed a disputed claim with the Office of Workers’ Compensation on 20 September 2000.

At the 12 October 2001 trial on the merits, no witnesses testified; the 'parties, however, submitted plaintiffs medical records and other documents into evidence. The parties stipulated that plaintiff was injured while in the course and scope of his employment; plaintiffs average weeMy wage was $222.65; plaintiffs workers’ ^compensation rate was $148.43 per week; plaintiffs medical expenses were $1,323.00; plaintiffs mileage reimbursement totaled $54.88; and, if workers’ compensation benefits were due plaintiff, temporary total disability was $2,078.02 and supplemental earnings benefits were $1,632.73.

The workers’ compensation judge rendered judgment in favor of plaintiff, awarding him temporary total disability benefits for the periods 13 September 2000 through 26 September 2000, 18 October 2000 through 18 November 2000, 18 November 2000 through 20 December 2000, and 20 December 2000 through 11 November 2001, in the amount of $148.83 per week, a total of $2,078.02 plus legal interest. As to supplemental earnings benefits, the trial judge awarded $148.88 per week for the periods 27 September 2000 through 18 October 2000 and from 11 January 2001 through 10 April 2001 plus legal interest. The trial judge also awarded plaintiff his total medical expenses, including mileage of $54.88. Finding the City failed to timely pay temporary total disability benefits and supplemental earnings benefits in violation of La. R.S. 23:1201 B and C, the trial judge assessed a penalty against the City pursuant to La. R.S. 23:1201 F in the amount of twelve percent (12%) of the unpaid compensation or fifty dollars ($50.00) for each calendar day, whichever was greater, for each calendar day in which the compensation remained unpaid, not to exceed a maximum of two thousand dollars ($2,000.00) in the aggregate. In addition to all costs, the trial | ¿judge ordered the City to pay a total of $7,500.00 in attorney’s fees for violations of La. R.S. 23:1201 B, C, and E.

It is well settled that factual findings in workers’ compensation cases are subject to the manifest error or clearly wrong standard of appellate review. Seal v. Gaylord Container Corp., 97-0688, p. 4 (La.12/2/97), 704 So.2d 1161, 1164; Banks v. Industrial Roofing & Sheet Metal Works, 96-2840, p. 7 (La.7/1/97), 696 So.2d 551, 556. In applying the manifest error — clearly wrong standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the fact finder’s conclusion was a reasonable one. Seal, 97-0688 at p. 4, 704 So.2d at 1164. Where two permissible views of the evidence exist, a fact finder’s choice between them can never be manifestly erroneous or clearly wrong. Id. If the fact finder’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Banks, 96-2840 at p. 8, 696 So.2d at 556.

At the outset, we address the issue(s) of whether plaintiff is entitled to temporary total disability benefits and/or supplemental earnings benefits and, if so, for what period(s) of time. The City, in its first assignment of error, argues that the trial court erred in awarding plaintiff supplemental earnings benefits for the period 11 January 2001 through 10 April 2001. Similarly, in its second assignment of error, the City argues that the trial court erred in awarding plaintiff supplemental | Rearnings benefits for the period 27 September 2000 through 18 October 2000 where it also awarded him temporary total disability benefits within the period 13 September 2000 through 11 January 2001. The City contends plaintiff failed to satisfy his burden of proving entitlement to either temporary disability benefits or supplemental earnings benefits within that period. In answering the appeal, plaintiff argues that the trial court erred in failing to award him supplemental earnings benefits from the date of his injury, 14 July 2000 through 12 September 2000, the day before his initial examination at Dr. Altman’s office.

To establish entitlement to workers’ compensation benefits, a claimant must prove by a preponderance of the evidence that an accident occurred during the course and scope of his employment; the accident caused his injuries; and the injury caused his disability. West v. Bayou Vista Manor, Inc., 371 So.2d 1146 (La.1979). For an employee to establish entitlement to temporary total disability benefits, he must prove by dear and convincing evidence, unaided by an presumption of disability, that he is physically unable to engage in any employment, regardless of its nature, and including employment while working in pain. La. R.S. 23:1221(l)(c). Coats v. American Telephone and Telegraph Co., 95-2670, p. 8 (La.10/25/96), 681 So.2d 1243, 1247. The burden of proving the existence of a fact by clear and convincing evidence requires that its existence be highly probable, that is, much more probable than its non-existence. Scherer v. Interior Plant Design, 98-702, pp. 4-5 (La.App. 3 Cir 10/28/98), 724 So.2d 797, 800.

The purpose of supplemental earnings benefits is to compensate an injured employee for the wage earning capacity he has lost as a result of his accident. Banks, 96-2840 at p. 8, 696 So.2d at 556. Pursuant to the provisions of La. R.S. | ,;23:1221(3)(a), an employee is entitled to receive supplemental earnings benefits if he sustains a work-related injury that results in his inability to earn ninety percent (90%) or more of his average pre-injury wage. Initially, the employee bears the burden of proving, by a preponderance of the evidence, that the injury resulted in his inability to earn that amount under the facts and circumstances of the individual case. Seal, 97-0688 at p. 8, 704 So.2d at 1166. “Th[is] analysis is necessarily a facts and circumstances one in which the court is mindful of the jurisprudential tenet that workers’ compensation is to be liberally construed in favor of coverage.” Daigle v. Sherwin-Williams Co., 545 So.2d 1005, 1007 (La.1989).

Once the employee’s burden is met, the burden shifts to the employer who, in order to defeat the employee’s claim for supplemental earnings benefits or establish the employee’s earning capacity, must prove, by a preponderance of the evidence, that the employee is physically able to perform a certain job and that the job was offered to the employee or that the job was available to the employee in his or the employer’s community or reasonable geographic region. La. R.S. 23:1221(3)(c)(i); Daigle, 545 So.2d at 1009. Actual job placement is not required. Seal, 97-0688 at p. 8, 704 So.2d at 1166. The amount of an award of supplemental earnings benefits is based upon the difference between the claimant’s pre-injury average monthly wage and the claimant’s proven post-injury monthly earning capacity. La. R.S. 23:1221(3)(a).

As previously mentioned, the parties in this case stipulated that plaintiff was injured in an accident while in the course and scope of his employment. To satisfy his burden to prove that the work related accident resulted in his inability to engage in any employment, thereby entitling him to temporary total disability benefits, plaintiff introduced into evidence his medical records from Dr. Altman’s office. ^Included among the medical records was a report prepared by Dr. Mathai, dated 26 December 2000, wherein Dr. Mathai stated that at the initial office visit on 13 September 2000, plaintiff was diagnosed with lumbar sprain that was causally related to the accident. At that time, Dr. Mathai prescribed medication, moist heat treatments, and physical therapy. The report expressly stated, “The patient was put on full disability for two weeks” or from 13 September 2000 to 26 September 2000. Plaintiff saw Dr. Mathai again on 27 September 2000, complaining of abdominal soreness and pulling. Although Dr. Mathai noted that plaintiffs lower back was improving from the therapy, he detected a hernia in plaintiffs mid abdominal wall and numbness in his left knee. Dr. Mathai prescribed additional medication and physical therapy, yet allowed plaintiff to return to light duty work for a three-week period that began 27 September 2000 and ended 18 October 2000.

Plaintiff returned to Dr. Mathai on 18 October 2000, complaining of abdominal pain. At that visit, plaintiff informed Dr. Mathai that he had not returned to work because light duty work was unavailable. Because plaintiffs lower back condition remained the same and his left knee continued to exhibit weakness, Dr. Mathai concluded plaintiff was fully disabled and unable to work from 18 October 2000 through 8 November 2000. At an office visit on 8 November 2000, plaintiff again complained of abdominal pain. Finding no improvement in either plaintiffs lower back or left knee, Dr. Mathai continued to prescribe physical therapy and pain medication. He also placed plaintiff on full disability for three additional weeks from 8 November 2000 through 29 November 2000.

At his follow up visit on 29 November 2000, plaintiff complained of lower back and abdominal pains. Although plaintiff exhibited lower back pain and left |sknee weakness while walking, a lower back examination revealed some improvement, as evidenced by ten degrees increase in flex-ion from his previous visit. Nonetheless, Dr. Mathai continued the pain medication, prescribed more physical therapy, and scheduled a follow up appointment. Plaintiff remained on full disability.

When plaintiff returned to see Dr. Ma-thai on 21 December 2000, both plaintiffs lower back and abdomen showed considerable improvement, yet his left knee still exhibited some weakness. Dr. Ma-thai again prescribed moist heat therapy and pain medication, but discontinued physical therapy because the back examination revealed an increase in flexion to ninety degrees. Nevertheless, Dr. Ma-thai continued plaintiff on full disability from 21 December 2000 to 11 January 2001, plaintiffs next scheduled appointment date. The medical records indicate plaintiff last obtained treatment for his work related injury on 21 December 2000.

Regarding temporary total disability benefits, the City offered no evidence to refute Dr. Mathai’s report that plaintiff was fully disabled and unable to work from 13 September through 26 September 2000 and again from 18 October 2000 through 11 January 2001. Plaintiffs medical records from Concentra Medical Center, which the City introduced into evidence, make no reference to plaintiffs injury after 21 July 2000. Although the City argues that plaintiff failed to mention an abdominal injury in his disputed claim form or at his first visit to Dr. Altman’s office, Dr. Mathai’s report specifically stated that “[a]U symptoms and findings [were] causally related to the accident.” Nonetheless, even if plaintiffs abdominal injury was not related to the accident, Dr. Mathai’s report indicates that plaintiffs back injury alone was enough to preclude him from working. After reviewing the 19evidence in the record, we find no error in the workers’ compensation judge’s award of temporary total disability benefits.

Plaintiff also relied on Dr. Mathai’s report and other medical records to satisfy his burden of proof as to his entitlement to supplemental earnings benefits. Dr. Ma-thai’s report and other documentation from Dr. Altman’s office disclose that plaintiff was able to return to work with some restrictions for the period 27 September 2000 through 18 October 2000, but failed to do so because no light duty work was available. Once plaintiff put forth this evidence, the City had to produce evidence to show that plaintiff was physically able to perform a certain job and that the job was offered to him or that a job was available to him in his community or reasonable geographic location. The City offered no such evidence. In the absence of any evidence that demonstrates the City offered light duty work to plaintiff or that light duty work was available in his community for the period 27 September 2000 through 18 October 2000, we cannot say the workers’ compensation judge erred in awarding plaintiff supplemental earnings benefits for that period of time. Although the judge awarded plaintiff temporary total disability benefits for two weeks prior to 27 September 2000 and for twelve weeks after 18 October 2000, the judge was not precluded from awarding supplemental earnings benefits for the period 27 September 2000 through 18 October 2000 where the medical evidence indicated that plaintiff was able to do light duty work and temporary total disability benefits had not been awarded for that same period.

We do, however, find merit to the City argument that the workers’ compensation judge erred in awarding plaintiff supplemental earnings benefits for the period 11 January 2000 through 10 April 2001. Plaintiffs medical records indicate that Dr. Mathai last examined plaintiff on 21 December 2000, at which [ intime he classified plaintiff as fully disabled and unable to work from 21 December 2000 to 11 January 2001. Plaintiff was scheduled to return to Dr. Mathai on 11 January 2001, but failed to do so. Plaintiff offered no evidence that he was unable to return to work after 11 January 2001 or that his work related injury prevented him from earning ninety percent or more of his average pre-injury wage. In the absence of such evidence, we find that the workers’ compensation judge erred in awarding plaintiff supplemental earnings benefits after 11 January 2001.

In answering the appeal, plaintiff argues that that workers’ compensation judge erred in not awarding him supplemental earning benefits from 14 July 2000 through 12 September 2000. We agree. Plaintiffs medical records from Concentra Medical Center, the City’s choice of physicians, indicate plaintiff was examined and/or underwent physical therapy on 14, 17, 18,19, 20, and 21 July 2000. Dr. Ewin determined that plaintiff could return to work with various restrictions that severely limited his ability to engage in his pre-injury employment. Dr. Mathai, on the other hand, determined that plaintiff was fully disabled as a result of the work related injury when he first examined him on 13 September 2000. In any event, the City offered no evidence to refute plaintiffs proof that he was unable to engage in his pre-injury employment. Nor did the City present evidence that it had offered light duty work within plaintiffs restrictions to him or that such a position was available. Thus, plaintiff is entitled to receive supplemental earnings benefits for the period 14 July 2000 through 12 September 2000.

We now address the second issue raised in plaintiffs answer to the appeal, i.e., whether the workers’ compensation judge erred in awarding plaintiff a|npenalty of only $2,000.00 for the City’s failure to authorize and pay timely all medical benefits and to pay timely all indemnity benefits. Plaintiff argues that he is entitled to a separate penalty for each of the following violations the City was found to have committed pursuant to the Workers’ Compensation Act: (1) failure to pay temporary total disability benefits; (2) failure to pay supplemental earnings benefits; (3) failure to authorize treatment by Dr. Altman’s office; (4) failure to pay medical expenses; and (5) failure to pay for a lumbar corset.

The penalty provision of La. R.S. 23:1201 provides, in part:

F. Failure to provide payment in accordance with this Section shall result in the assessment of a penalty in an amount equal to twelve percent of any unpaid compensation or medical benefits or fifty dollars per calendar day, whichever is greater, for each day in which any and all compensation or medical benefits remain unpaid, together with reasonable attorney fees for each disputed claim; however, the fifty dollars per calendar day penalty shall not exceed a maximum of two thousand dollars in the aggregate for any claims ... (Emphasis added).

Plaintiff contends that the addition of the phrase “together with reasonable attorney fees for each disputed claim ” in the first clause of paragraph F and of the words “any disputed claim” after the phrase “in the aggregate” in the second clause indicates the legislature’s intent to permit a penalty of $2,000.00 for each sanctionable violation. In determining whether plaintiffs contention has merit, a review of the legislative history of La. R.S. 23:1201 is necessary.

Prior to 1 January 1993, La. R.S. 23:1201 made no mention of a penalty for the non-payment of medical benefits. Section 1201 B merely provided that the first installment of compensation was to be due on the fourteenth day after the employer or insurer had knowledge of the injury and the penalty provision of l12Section 1201 E allowed a twelve percent penalty to be imposed if an installment of compensation was not paid within the proper time period. Acts 1992, No. 1003, § 1, effective 1 January 1993, amended La. R.S. 23:1201 E to impose a penalty for the failure to pay medical benefits and to provide for either the penalty of twelve percent of any unpaid compensation or fifty dollars per calendar day, not to exceed a maximum of $2,000.00, whichever is greater, for each day in which any and all compensation or medical benefits remain unpaid. However, the time limits set forth in La. R.S. 23:1201 B, C, and D related to compensation payments and not medical payments. Nonetheless, it is apparent that in adding the fifty dollar per day penalty, the legislature intended to benefit the employee whose twelve percent penalty yielded only a small penalty recovery.

By Acts 1995, No. 1137, § 1, effective 29 June 1995, the legislature established a separate time period in which medical benefits were to be paid. It rewrote La. R.S. 23:1201 E and redesignated that which previously had been in that subsection, with major modifications, as what is now La. R.S. 23:1201 F. Although the current statute still provides for relief for unpaid compensation and medical benefits, it does so in terms of disputed claims.

La. R.S. 23:1201 F is penal in nature and, therefore, must be strictly construed. See Williams v. Rush Masonry, Inc., 98-2271, pp. 8-9 (La.6/29/99), 737 So.2d 41, 46. A reasonable interpretation of the 1995 amendment is that the legislature intended to clarify that separate penalties could be awarded for both unpaid compensation and medical benefit claims. The statute as amended in 1995 makes no provision that a separate penalty is available for every single violation of the act.

In Fontenot v. Reddell Vidrine Water District, 2002-0439, 2002-0442, 2002-478 (La.1/14/03), 836 So.2d 14, the Louisiana Supreme Court interpreted the penalty provision of La. R.S. 23:1201 F to allow for multiple penalties for multiple violations regarding indemnity and medical benefits claims. In the case at bar, we find the trial court erred in its determination of that which plaintiff is entitled to recover as penalties. We hold that plaintiff is entitled to recover a penalty, as provided for in La. R.S. 23:1201 F, for each of the five violations that plaintiff has asserted.

Finally, we address the issue of the attorney’s fees awarded in this case. The City argues that the workers’ compensation judge’s award of $7,500.00 in attorney’s fees to plaintiff is excessive in light of plaintiffs counsel’s admission at trial that her fees of $125.00 per hour totaled $3,387.50 in the instant matter. In answering the appeal, plaintiff seeks an increase in the attorney’s fees awarded, arguing that his counsel expended additional time on his case after the 12 October 2001 trial, including time on this appeal.

Awards of attorney’s fees in a workers’ compensation cases are penal in nature and are intended to discourage indifference and undesirable conduct by employers and insurers. Williams v. Rush Masonry, Inc., 98-2271, pp. 8-9 (La.6/29/99), 737 So.2d 41, 46. Although the benefits provisions in the workers’ compensation act are to be liberally construed, penal statutes are to be strictly construed. Id. at p. 9, 737 So.2d at 46. The penalty and incentive to act in a particular manner provided by an award of attorney’s fees lies in the imposition of the fees rather than in the amount of the fees awarded. Langley v. Petro Star Corp. of La., 2001-0198, p. 9 (La.6/29/01), 792 So.2d 721, 726. Nonetheless, even though the primary consideration in the imposition of attorney’s fees is to discourage certain offensive behavior on the part of the employer or insurer, the \uamount of statutory attorney’s fees awarded is intended to fully compensate the employee’s attorney, thereby benefiting the employee, for his services rendered in connection with the litigation. Id. at p. 10, 792 So.2d at 727.

In the instant case, the workers’ compensation judge awarded plaintiff attorney’s fees of $5,000.00 for the City’s failure to pay temporary total disability and supplemental earnings benefits in addition to $2,500.00 for its failure to pay medical benefits. The evidence in the record reflects that the City neither reasonably controverted plaintiffs claims for indemnity and medical benefits nor demonstrated that nonpayment of the benefits resulted from conditions beyond its control. Thus, we cannot say the trial judge erred in awarding plaintiff attorney’s fees pursuant to La. R.S. 23:1201 F. Regarding the amount of attorney’s fees awarded, the record reflects that plaintiffs counsel acknowledged at trial that her fees in this matter totaled $3,387.50. It further reflects that plaintiffs counsel expended additional time on the case after the trial, which included preparing a post trial memorandum for the workers’ compensation judge, corresponding via telephone and mail with all interested parties, attending several post trial conferences, as well as answering the City’s appeal. The City, however, has been successful in appealing the award of supplemental earnings benefits for the period 11 January 2001 through 10 April 2001. Viewing the entire record before us, we find that the total award of $7,500.00 for attorney’s fees to plaintiff fully compensates plaintiffs counsel for her services rendered in connection with this litigation. Thus, we decline to disturb the workers’ compensation judge’s award of attorney’s fees.

Accordingly, for the reasons stated herein, the judgment of the workers’ compensation judge is reversed, in part, insofar as it awarded plaintiff [ ^supplemental earnings benefits for the period 11 January 2001 through 10 April 2001. The judgment is amended, in part, to award plaintiff supplemental earnings benefits in the amount of $148.43 per week for the period 14 July 2000 through 12 September 2000 and penalties as provided for in La. R.S. 23:1201 F for each of five violations. And as amended, we affirm the judgment.

REVERSED IN PART; AMENDED IN PART AND, AS AMENDED, AFFIRMED.

      . The workers’ compensation judgment erroneously states, in part, that temporary total disability benefits were due for the periods 18 October 2000 through 18 November 2000, from 18 November 2000 through 20 December 2000, and from 20 December 2000 through 11 November 2001. The record reflects and it is undisputed that the correct periods were 18 October 2000 through 8 November 2000, 8 November 2000 through 20 December 2000, and 20 December 2000 through 11 January 2001.

      . The trial court’s judgment is unclear as to whether an award of one or two penalties was made. The issue is discussed in more detail infra.

      . The workers' compensation judgment also erroneously states, in part, that attorney’s fees of $5,000.00 are awarded to plaintiff for the City’s "[v]iolation of La. R.S. 23:1202 B, C, or D,” rather than the statute at issue, La. R.S. 23:1201 B and C, relative to the failure to timely pay temporary total disability benefits and supplemental earnings benefits.

      . See footnote 2 above.


author: h CHARLES R. JONES, Judge.

text:
    STATE of Louisiana v. Brace D. CARTER.
    No. 2002-KA-1279.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 29, 2003.
    Harry F. Connick, District Attorney, Juliet Clark, Assistant District Attorney, New Orleans, LA, for State of Louisiana.
    Harry S. Tervalon, Jr., New Orleans, LA, for Bruce Carter.
    (Court composed of Judge CHARLES R. JONES, Judge MICHAEL E. KIRBY, and Judge MAX N. TOBIAS JR.).
   h CHARLES R. JONES, Judge.

In this appeal the State of Louisiana, as appellant, argues that the district court erred in granting Bruce D. Carter’s motion to quash. We agree.

On February 21, 2001, in case number 419-961, Carter was charged with attempted second degree murder in violation of La. R.S. 14:27(30.1). He failed to appear for arraignment set for March 5th, and when he appeared on March 14th, the alias capias that had been issued for his arrest was recalled. At a hearing on the motions on April 6th, the district court found probable cause to bind him over for trial, and denied his motion to suppress the evidence. On May 8th, the day set for trial, the state asked for a continuance because the victim was unavailable. On August 7th, the next day set for trial, the state again requested a continuance because it had been unable to contact the doctor. On September 11th, Carter failed to appear for trial. Trial was reset for November 30th, it appears that both parties agreed on a continuance on November 30th since the delay was not attributed to either side. On February 5, 2002, the state again requested a continuance, this time on the grounds that the victim was in a wreck. Carter objected to the continuance for the first time. When the state was not ready for trial on March 27th because the | ¿victim had been in an accident, the district court denied the state’s request for continuance. The state then entered a nolle prosequi.

On April 1, 2002, the case was reinstitut-ed as case number 429-150, and on April 26th, Carter filed a motion to quash. The motion was granted on May 3rd. This timely appeal follows.

There are no facts in the record concerning the offense.

At the May 3rd hearing on the motion, defense counsel argued that the state had requested five trial delays, that the defense had been ready for trial on the dates set, and that more than a year had passed since Carter was arraigned and pleaded not guilty. A motion for a speedy trial was filed in March of 2001. Defense counsel asserted that the state’s choices were to go to trial or to take a writ when its request for a continuance was denied.

The assistant district attorney answered that the state has authority to dismiss and reinstitute cases under La.C.Cr.P. articles 61, 62, and 691. The assistant district attorney also pointed out that neither Carter’s statutory nor his constitutional right to a speedy trial was violated by the dismissal and reinstitution of these charges. Under La.C.Cr.P. art. 578, the state has two years from the filing of the bill of information to bring him to trial. The bill of information in this case was filed on February 21, 2001. Furthermore, under La.C.Cr.P. art. 579(A)(3), Carter’s failure to appear for trial on September 11, 2001, interrupted the time limitations set out in La.C.Cr.P. art. 578. The assistant district attorney explained Rthat the delays after January 2002 were due to the victim’s injuries after being hit by an eighteen-wheeler truck. He further noted that Carter was not prejudiced by being in jail for an extended time because he was incarcerated on another charge.

We note that the record indicates that four of the continuances were at the request of the state. The September 11, 2001, delay was due to Carter’s absence, and the November 30, 2001, delay is not attributed. Under La.C.Cr.P. articles 578 and 579, the state had until September 11, 2002, to bring Carter to trial.

In a similar case, in which the state, after being denied a continuance, entered a nolle prosequi and then reinstituted the charges, the district court granted the defendant’s motion to quash. State v. Larce, 2001-1992 (La.App. 4 Cir. 1/23/02), 807 So.2d 1080. This Court found that the district court erred in granting the motion to quash, holding that the district attorney controls dismissing and reinstating cases and that the defendant’s right to a speedy trial was not violated by the state’s dismissal and timely reinstitution of these charges.

We find that the district court erred in granting Carter’s motion to quash the bill of information. Accordingly, the judgment is reversed and the case remanded to the trial court.

REVERSED.

      . The docket master and minute entries contain no evidence that the defendant was arraigned; however, at the hearing on the motion to quash, the defense attorney comments that 427 days had passed since the defendant pleaded not guilty in March of 2001.

      . Under La.C.Cr.P. articles 61 and 62, the district attorney has entire charge and control of each criminal prosecution in his district, and he decides whom, when and how to prosecute. Under La.C.Cr.P. art. 691 the district attorney "has the power, in his discretion, to dismiss an indictment ... and in order to exercise that power it is not necessary that he obtain consent of the court.”

      . In reversing the trial court in Larce, this court noted that the limitations the legislature placed on the state's ability to reinstitute charges are found in La.C.Cr.P. art. 576 which provides:
      When a criminal prosecution is timely instituted in a court of proper jurisdiction and the prosecution is dismissed by the district attorney ... a new prosecution for the same offense or for a lesser offense based on the same facts may be instituted within the time established by this Chapter or within six months from the date of dismissal, whichever is longer. A new prosecution shall not be instituted under this article following a dismissal of the prosecution by the district attorney unless the state shows that the dismissal was not for the purpose of avoiding the time limitation for commencement of tried established by Article 578.
      In the case at bar, the state reinstituted the case for the same offense four days after the nolle prosequi, and the district attorney was obviously not avoiding the time limitations of La. C.Cr.P. art. 578.


author: |!TERRI F. LOVE, Judge.

text:
    Joelle SAULNY v. The TRICOU HOUSE, L.L.C. and the XYZ Insurance Company.
    No. 2002-CA-1424.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 29, 2003.

      Darleen M. Jacobs, A1 Ambrose Sarrat, Jacobs & Sarrat, New Orleans, LA, for Plaintiff/Appellee.
    Mitchell J. Hoffman, Kermit L. Roux, III, Lowe, Stein, Hoffman, Allweiss & Hauver, L.L.P., New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge JAMES F. McKAY III, Judge DENNIS R. BAGNERIS, SR., Judge TERRI F. LOVE).
   |!TERRI F. LOVE, Judge.

Plaintiff filed suit against the defendant for damages resulting from injuries she sustained at the defendant’s restaurant. After a bench trial, the court entered judgment in favor of the plaintiff, which is the subject of this appeal. For the reasons discussed below, we affirm the judgment of the trial court.

FACTS AND PROCEDURAL HISTORY

Tricou House, L.L.C. (“Tricou”) owns and operates a restaurant and bar with the same name located in New Orleans. Tricou uses plastic chairs for seating its customers, because the chairs are easy to clean, move, and store. The staff was required to stack and clean the chairs every morning and evening. Chairs that were discovered to be damaged were removed from use and discarded. Tricou never had any problems or complaints regarding any of its chairs.

On July 11, 1999, Joelle Saulny (“Saul-ny”) went' to Tricou for a meal vrith friends. Saulny sat in one of the chairs, however the front left leg of the chair bent approximately ten seconds after she sat down. As a result, Saulny fell to the ground and injured her left ankle, which was pinned under the chair.

Saulny was taken from Tricou to the Pendleton Memorial Methodist Hospital by ambulance where she was treated for her injuries. At the hospital, 1 ¡.Saulny was weighed at two hundred fifty-two pounds. Saulny’s lower left leg and ankle were x-rayed. Her leg and ankle were also examined by an emergency room doctor. The x-rays revealed no fractures were present. Saulny was placed in a brace for her foot and ankle. She was also given a cane for support. The emergency room doctor prescribed Tylenol #3 and advised her to seek orthopedic care.

Saulny began follow-up treatment with Dr. Daniel Seltzer (“Dr. Seltzer”), an orthopedic surgeon on July 15, 1999. Saulny was diagnosed as having a second-degree sprain of her lateral ligament complex of the left ankle, mild amounts of swelling and pain, and limited range of motion. Dr. Seltzer instructed Saulny to continue wearing the walking brace and using the cane for additional support. Dr. Seltzer also prescribed Lodine for the pain and swelling, and instructed Saulny to begin physical therapy. Saulny completed eleven physical therapy sessions at the Davidson and Lorusso Physical Therapy Clinic. The physical therapy sessions encompassed whirlpool therapy followed by ultrasound with electrical stimulation, massage and exercise to the left ankle, lower leg and knee.

Saulny continued treatment with Dr. Seltzer on a monthly basis from the date of her first appointment until January 2000. Saulny continued to complain of pain in her ankle, and in September of 1999, for the first time she complained to Dr. Seltzer of back pain that she thought was caused by the fall. During Saulny’s treatment with Dr. Seltzer, he eventually prescribed an elastic band and then another brace for her ankle, because the original walking brace caused Saulny discomfort. Dr. Seltzer told Saulny to wear each type of ankle restraint at all times. However, Saulny would frequently go without the restraints because they caused her discomfort or pain. Dr. Seltzer also ordered an MRI in September and Ran EMG in December of 1999 to attempt to determine why Saulny continued to be in pain even though he could ascertain no visible cause of the continued pain. The results of the EMG and MRI were both negative.

In August of 1999, Saulny developed a dermatoid fibrosis on the top of her left foot. Dr. Bryan Frentz (“Dr. Frentz”) treated her for this condition, which he did not relate to the fall. Saulny required surgery to remove the dermatoid fibrosis.

At the time of trial, Saulny continued to complain of pain in her anMe and back. She took non-prescription Tylenol for pain and would apply ice and elevate her ankle.

Saulny filed suit against Tricou and its insurer, XYZ Insurance Company, for damages. A bench trial in this matter was held on November 15, 2001. The trial court found that the chair was defective and the sole and proximate cause of Saul-ny’s injuries. The trial court awarded the plaintiff $10,000.00 in general damages and $4,608.65 in special damages plus interest from the date of judicial demand and all costs of the proceedings.

LAW AND DISCUSSION

On appeal, Tricou alleges that the trial court erred by concluding the chair at issue was defective and that Tricou had constructive notice of the alleged defect. Tricou also contends that the trial court’s award was excessive in light of the facts and should be reduced.

Under La. C.C. art. 2317.1

The owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care. Nothing in this Article shall |4preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate case.

Tricou contends that it is not liable under this article because reasonable care was used to inspect the chairs it provided for its patrons, and that it had no reason to know that the chairs would pose a danger to patrons who were “heavy” in weight.

After hearing the testimony of two Tricou employees, the trial court determined in light of the testimony three important facts. First, the chairs used by Tricou would often break and have to be replaced. Tricou had used these chairs for at least two years prior to Saulny’s accident, and several of the chairs had broken during this time.

Second, the employees, managers, and owners had constructive notice that the chairs would break and/or were defective and needed to be replaced on a regular basis. The trial court specifically stated: “Constructive notice can be found if the conditions which caused the injury existed for such a period of time that those responsible, by exercise of ordinary care and diligence, must have known of their existence in general, and could have guarded the public from injury.” During the two year’s, they should have been aware of the propensity of the chairs to break, and the danger posed to the public by their defective nature.

Finally, there was no formal, routine inspection process in place to determine if chairs were damaged or defective. The chairs were only cleaned on a routine basis; and if a defect were noticed while a chair was being cleaned then the chair would be replaced. In the trial court’s reasons for judgment, the trial court found despite Tricou’s knowledge of the susceptibility of the chairs to defects and breakage, Tricou took no affirmative steps to protect the public from possible harm. Tricou could have posted signs giving a warning or weight restriction for |Kthe chairs, tested the chairs with weights, provided different chairs for its customers who need a sturdier chair, or other such measures. Tricou took no precautionary actions to protect its customers.

Upon review of the record, we find no evidence to contradict the trial court’s findings.

To determine Saulny’s damages, the trial court reviewed the medical testimony and medical records submitted into evidence. The trial court found the injuries to Saulny’s ankle and back were caused by the fall when the chair collapsed. The trial court did not find the dermatoid fibrosis was related to the fall. In determining the award, the trial court acknowledged that Saulny did not follow her doctor’s orders. Saulny testified that she did not wear the ankle brace as instructed because she found it uncomfortable or painful, and would often walk without it. The trial court stated that the award was lower than normal, because of Saulny’s failure to mitigate her damages.

A court of appeal may not set aside a trial court’s or a jury’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong.” Stobart v. State through Dept. of Transp. and Dev., 617 So.2d 880, 882 (La.1993), citing, Rosell v. ESCO, 549 So.2d 840 (La.1989). We find that the trial court’s reasoning for rendering judgment in favor of Saulny is correct and reasonable. Tricou had constructive notice that the chairs were not particularly durable and their tendency to break. Tricou is a public restaurant, which serves a variety of people who are of various sizes and weights. Tricou had a responsibility to provide seating capable of use by all of its patrons. We further find the trial court’s award was reasonable and adequate. The trial court took into account Saulny’s actions of not wearing her brace according to her doctor’s instructions, which may have inhibited her own | ¿recovery. Therefore, the award was proper in light of Saulny’s failure to mitigate her damages.

CONCLUSION

For the abovementioned reasons, we affirm the judgment of the trial court.

AFFIRMED.