author: THOMAS, J.

text:
    UNIVERSITY OF FLORIDA BOARD OF TRUSTEES, Appellant, v. Connie ANDREW and William Andrew, individually and as Personal Representatives of the Estate of Dustin Andrew, deceased, Appellees.
    No. 1D06-5893.
    District Court of Appeal of Florida, First District.
    July 31, 2007.
    Susan L. Kelsey of Anchors Smith Grimsley, Tallahassee; Eric P. Gibbs of Hannah, Estes & Ingram, P.A., Orlando, for Appellant.
    Rebecca Bowen Creed and Tracy S. Carlin of Mills & Creed, P.A., Jacksonville, for Appellees.
   ON MOTION FOR REHEARING, REHEARING EN BANC, AND CERTIFICATION

THOMAS, J.

This cause is before us on Appellant’s motion for rehearing, rehearing en banc, and certification. We deny the motion for rehearing en banc and certification, but grant the motion for rehearing in order to clarify that there was no evidence presented to demonstrate that Appellant’s university (“university’’) operated the hospital in question. Our opinion on the merits remains unchanged. Accordingly, we withdraw our opinion of May 31, 2007, and substitute this opinion in its place.

The underlying action here is a wrongful death suit alleging medical negligence by a radiologist employed by Appellant at Shands at Lake Shore, Inc. (“the hospital”). Appellant moved for change of venue, arguing that because the university used only some of its employees to provide radiology services at the hospital, and did not establish a branch campus, venue in Columbia County is inappropriate under section 768.28(1), Florida Statutes (2005). The trial court denied Appellant’s motion. On appeal, Appellees established that the university’s presence in Columbia County meets the statutory requirements; therefore, venue is proper. We affirm.

Section 768.28(1), Florida Statutes (2005), provides:

In accordance with s. 13, Art. X of the State Constitution, the state, for itself and for its agencies or subdivisions, hereby waives sovereign immunity for liability for torts, but only to the extent specified in this act. Actions at law against the state or any of its agencies or subdivisions to recover damages in tort for money damages ... may be prosecuted subject to the limitations specified in this act. Any such action may be brought in the county where the property in litigation is located or, if the affected agency or subdivision has an office in such county for the transaction of its customary business, where the cause of action accrued. However, any such action against a state university board of trustees shall be brought in the county in which that university’s main campus is located or in the county in which the cause of action accrued if the university maintains therein a substantial presence for the transaction of its customary business.

(Emphasis added.) We are asked to interpret whether the university maintains a “substantial presence for the transaction of its customary business,” which is an issue of first impression.

The plain meaning of a statute is the first and paramount consideration of statutory construction. Capers v. State, 678 So.2d 330 (Fla.1996). Only when a statute is of doubtful meaning should the courts resort to extrinsic interpretive aids. Id. We acknowledge that because this is a legislative waiver of sovereign immunity, any ambiguity must be strictly construed in favor of Appellant and against Appel-lees. See Tampa-Hillsborough County Expressway Auth. v. K.E. Morris Alignment Serv., Inc., 444 So.2d 926, 928 (Fla.1983) (“A waiver of sovereign immunity ... should be strictly construed in favor of the state and against the claimant.”). However, we find no ambiguity here.

Although the key terms in section 768.28(1), Florida Statutes, are not defined, the words have common and ordinary meanings that lead to clear and unambiguous results. See Donato v. Am. Tel. & Tel. Co., 767 So.2d 1146 (Fla.2000) (holding that where the legislature has not defined terms that it uses in a statute, the terms must be construed according to their common and ordinary meanings). If a university maintains a substantial presence in a particular county and transacts its customary business in that county, an action against that university’s board of trustees may be brought in that county under the plain language in section 768.28(1), Florida Statutes.

Appellant argues that the only way this definition can be met is if a university operates a “branch campus” in a foreign county. In support of this argument, Appellant attacks both prongs of the statute-ry test. Appellant first argues that in order to prove a “substantial presence” in a particular county, the presence of the university in the foreign county must be compared to its presence in its home county. Appellant next argues that the statutory exception only applies in those counties where the university participates in all three of its “customary business” practices. Because the university does not teach any students at the hospital in Columbia County, Appellant argues that it is impossible to consider that the business conducted is “customary.”

When interpreting a statute, courts are not at liberty to add words to the statute that were not placed there by the legislature. State v. J.M., 824 So.2d 105, 111 (Fla.2002). This is precisely what Appellant’s interpretation of the statute would do. The fact that the university’s contacts in the remote county may be less substantial than its contacts in its home county is irrelevant. The statute clearly provides that any “substantial” presence will qualify. The evidence presented below shows that in the years preceding the alleged negligence, the university leased a building, hired employees, billed millions of dollars in medical bills, and paid thousands of dollars to vendors in Columbia County. Therefore, we agree with the trial court’s finding that the university’s presence in the foreign county is substantial.

As to Appellant’s second argument, its interpretation of the statute again requires adding words to the statute. There is nothing in the provision that requires the university to participate in all of its various “customary businesses” in order for the exception to apply. If the legislature wanted to require this, it would have done so. This court is without power to apply such a standard on its own. See Donato, 767 So.2d at 1150-1151 (a court abrogates legislative power when it construes “an unambiguous statute in a way which would extend, modify, or limit its express terms or its reasonable and obvious implications”).

Furthermore, as Appellees point out, the legislature used the term “branch campus” in other statutes, including five provisions that were passed in the same legislative session as the language in question. See §§ 1004.26, 1004.33, 1004.34, 1005.02, and 1009.24, Fla. Stat. (2002). There is no question the legislature could have chosen that particular term again if it wanted to. Moreover, in reference to another, unrelated venue provision, this court has said, “ ‘Transaction of customary business’ means that the business transacted in the county must be a part of the corporation’s usual or ordinary business and must be continuous in the sense of being distinguishable from mere casual, occasional or isolated transactions.” Armstrong v. Times Publ’g Co., 481 So.2d 41, 42 (Fla. 1st DCA 1985) (emphasis added). The university’s business endeavors in Columbia County certainly were not mere casual, occasional, or isolated transactions, and Appellant admits that at least some of its university’s ordinary business is conducted at the hospital. Accordingly, we hold that the statutory exception applies and affirm the trial court’s denial of Appellant’s motion for change of venue.

AFFIRMED.

KAHN and POLSTON, JJ., concur.

      . Appellant argues that Article IX, section 7(a) of the Florida Constitution establishes that the “customary business” of a university is "to achieve excellence through teaching students, advancing research and providing public service for the benefit of Florida’s citizens.” Ap-pellees do not dispute this premise.


source: Caselaw Access Project

author: WARNER, J.

license: Public Domain

text:
    William TIMMONS, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-2324.
    District Court of Appeal of Florida, Fourth District.
    Aug. 1, 2007.
    Carey Haughwout, Public Defender, and James W. Mclntire, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Diane F. Medley, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

When a police officer arrested appellant in the parking lot of a hotel for possession of marijuana, the officer made inquiries as to where appellant was staying in the hotel prior to reading Miranda rights. As a result of the information he obtained, the officers asked appellant for and received consent to search the room, which contained more marijuana and increased the charge to possession with intent to sell. The trial court denied a motion to suppress appellant’s statements for lack of Miranda warnings, leading to appellant’s plea with reservation of this issue on appeal. We affirm, holding that Miranda warnings were not required because the question asked did not constitute interrogation or seek to elicit an incriminating response from appellant.

Broward County Sheriffs deputies engaged in a gang drug sweep the night of appellant Timmons’ arrest. At around midnight Officer Romano went to a hotel in Pompano Beach, which one of the other officers knew to be “a very high drug hotel.” Romano went to the back parking lot of the hotel. As he came around the corner, he observed Timmons drop two bags out of his right hand. Romano retrieved the bags which, based on his training and experience, he believed to contain marijuana.

Romano arrested Timmons, placed him in handcuffs, and sat him down against the wall while Romano cheeked for warrants. At this point, he had no idea where Tim-mons lived. Romano then asked Timmons “if he was staying in the hotel, what room he was in.” Timmons responded that he was staying in room 114. Romano testified that in asking for this information he was furthering his investigation as to why Timmons was in the hotel parking lot with suspect marijuana. He asked for consent to search the room. Timmons consented to the search, and the officer obtained the assistance of the hotel manager to let him into the room. The search revealed a greater quantity of marijuana, leading to the charge for possession with intent to sell.

Timmons moved to suppress the marijuana found in the hotel room, arguing that the officer obtained the information regarding his hotel room by interrogating Timmons prior to giving him Miranda warnings. Thus, the consent to search was tainted by the initial illegality of the interrogation. The trial court denied the motion, and appellant entered a plea reserving his right to appeal this dispositive issue.

The safeguards provided by Miranda apply only if an individual is in custody and subject to interrogation. State v. Weiss, 935 So.2d 110, 116 (Fla. 4th DCA 2006). Where either the custody or interrogation prong is absent, Miranda does not require warnings. Lewis v. State, 754 So.2d 897, 900 (Fla. 1st DCA 2000). In determining whether a suspect is in custody for Miranda purposes, the ultimate inquiry is simply whether there is a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest. State v. J.Y., 623 So.2d 1232, 1234 (Fla. 3d DCA 1993). As the officer had arrested Timmons, he was in custody. Thus, the remaining inquiry is whether Timmons was subjected to interrogation.

The Supreme Court explained in Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980), what constitutes interrogation for purposes of Miranda warnings:

“Interrogation,” as conceptualized in the Miranda opinion, must reflect a measure of compulsion above and beyond that inherent in custody itself.
We conclude that the Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent. That is to say, the term “interrogation” under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.... [T]he definition of interrogation can extend only to words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response.

Id. at 800-02, 100 S.Ct. 1682 (footnotes omitted) (emphasis in original); see also Origi v. State, 912 So.2d 69 (Fla. 4th DCA 2005). The focus of the inquiry is “primarily upon the perceptions of the suspect, rather than the intent of the police[,]” as “the Miranda safeguards were designed to vest a suspect in custody with an added measure of protection against coercive police practices, without regard to objective proof of the underlying intent of the police.” Innis, 446 U.S. at 301, 100 S.Ct. 1682.

An example of a question posed while the suspect was in custody which did not constitute interrogation is found in State v. Koltay, 659 So.2d 1224 (Fla. 2d DCA 1995). There, the defendant had been arrested, and officers were transporting him to the station. Before Miranda warnings were administered, one of the officers asked defendant why he had previously been in a mental health facility. In response, the defendant became irate and said, “I’m not crazy just because I f-d a little girl.” Id. at 1225. Obviously, this was an incriminating response. However, the court held that, although the defendant was in custody, asking why he had previously been in a mental facility was not a question designed to elicit an incriminating response from the defendant. It would not make the defendant feel compelled to incriminate himself.

Questions regarding basic identification data required for booking, such as name, age, current address, and social security number, are generally not subject to Miranda. State v. McAdams, 559 So.2d 601, 601-02 (Fla. 5th DCA 1990). See also Allred v. State, 622 So.2d 984, 987 n. 9 (Fla.1993) (booking questions include name, address, height, weight, eye color, date of birth, and current age). Booking questions are not designed to lead to an incriminating response, but rather are designed to lead to essential biographical data. Id. at 987.

Although the officer in this case was not in the process of booking Tim-mons, he was acquiring basic information. If an officer is permitted to obtain a current address without the action being considered interrogation, we see no difference in asking whether Timmons was staying at the hotel in which he was found in the parking lot. From the perspective of the suspect, this is not a question which is designed to elicit an incriminating response. That he was staying at the hotel in no way incriminated Timmons for the crime for which he had been arrested, nor did it indicate in any way that Timmons may have been guilty of any other crime.

That the officer then requested consent to search the room also does not constitute interrogation. In Everett v. State, 893 So.2d 1278 (Fla.2004), the defendant was asked for consent to provide DNA samples while his right to counsel was invoked. On appeal, the defendant contended this violated his Fifth Amendment right. The supreme court stated that once a defendant has invoked the right to counsel, counsel is not required for all further communications — only for interrogations. Id. at 1284. The supreme court concluded that a request for consent to search is not reasonably likely to elicit an incriminating response. Id. at 1286-87. Thus, in this case the request for consent was not reasonably likely to elicit an incriminating response, and it was not interrogation requiring Miranda warnings. Innis, 446 U.S. at 300-02, 100 S.Ct. 1682.

We thus conclude that the trial court did not err in denying the motion to suppress, and we affirm the conviction and sentence.

GROSS and TAYLOR, JJ., concur.

      . We conclude that the issue is appealable as dispositive, see Peña v. State, 913 So.2d 1203 (Fla. 4th DCA 2005), even though the trial court inadvertently failed to announce its dis-positive nature, although requested to do so by defense counsel. Hawk v. State, 848 So.2d 475 (Fla. 5th DCA 2003); Humphrey v. State, 909 So.2d 938 (Fla. 2d DCA 2005).


author: PER CURIAM.

text:
    Reinaldo DIAZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-2710.
    District Court of Appeal of Florida, Fourth District.
    Aug. 1, 2007.
    Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Reinaldo Diaz appeals five convictions arising out of a home invasion robbery. The victims picked Diaz out of a photo line-up. We affirm and write to address one issue.

Diaz contended that he had been misidentified. At trial, defense counsel sought to show one of the victims a photograph of another person to see if the victim would identify that person as the robber. The victim had not previously been shown the photograph. Defense counsel explained that Diaz and a co-defendant were suspects in similar robberies in Dade County. Concerning those robberies, the Miami Dade Police Department had issued a press release with photographs of another suspect, a fired Hialeah police officer. Defense counsel hoped to “get lucky” and have the witness identify the former officer as the person who robbed her. The trial court examined the former officer’s photograph and observed that there was a resemblance between the former officer and Diaz. The trial court denied the defense request to show the photograph to the victim.

There was an insufficient basis to offer the photograph as reverse Williams rule evidence. But cf. Edwards v. State, 857 So.2d 911 (Fla. 3d DCA 2003). We do not reach the issue of whether the trial court abused its discretion in refusing to allow an in-court eyewitness identification procedure. See U.S. v. Domina, 784 F.2d 1361, 1369 (9th Cir.1986); U.S. v. Bennett, 675 F.2d 596, 598 (4th Cir.1982); State v. Smith, 200 Conn. 465, 512 A.2d 189, 194 (1986); Commonwealth v. Jones, 362 Mass. 497, 287 N.E.2d 599, 602 (1972). Defense counsel did not request to proffer the photograph to the witness outside the presence of the jury. Compare Rozier v. State, 636 So.2d 1386, 1387-88 (Fla. 4th DCA 1994); Banks v. State, 648 So.2d 766 (Fla. 1st DCA 1994); Kembro v. State, 346 So.2d 1083 (Fla. 1st DCA 1977). Without knowing the witness’s response to the photograph, we cannot evaluate the trial court’s ruling.

Affirmed.

WARNER, GROSS and TAYLOR, JJ, concur.

      . See Williams v. State, 110 So.2d 654 (Fla. 1959).


author: WHATLEY, Judge.

text:
    Roger V. RIGAU, o/b/o, Roger Ryan RIGAU, Appellant, v. DISTRICT SCHOOL BOARD OF PASCO COUNTY, Appellee.
    No. 2D05-6139.
    District Court of Appeal of Florida, Second District.
    Aug. 3, 2007.

      Roger V. Rigau, pro se.
    No appearance for Appellee.
   WHATLEY, Judge.

Roger V. Rigau (Rigau) appeals the order entered by the District School Board of Pasco County (the School Board) suspending his son, Roger Ryan Rigau (Ryan), from high school for ten days. We reverse.

In the face of the negative impact of such a suspension the Board failed to appear in this appeal and respond in any manner to Rigau’s assertions.

The School Board charged Ryan in a referral notice as follows: “Student was under the influence of alcohol at a school related event (Grad Bash Universal Studios — Orlando).” At the administrative appeal hearing, a school official stated that the school decided to discipline Ryan based on the fact that two of the three other boys with Ryan that night stated that he was involved in consuming alcohol before arriving at Grad Bash. However, the School Board’s findings in its order upholding the order of suspension fail to even mention alcohol consumption by Ryan. Rather, the School Board found that the three other students with Ryan on the night of Grad Bash admitted using alcohol, and Ryan was in close proximity to the alcohol throughout the evening. The order concludes that it was “implausible to believe that Ryan could have had no awareness, knowledge, or participation in the events which transpired.... ” But this conclusion ignores the charge that Ryan was under the influence of alcohol. It also ignores the fact that Ryan presented unrebutted testimony that he was admitted to Universal Studios after the Orlando police conducted a field sobriety test that included a blow of breath into the face of an officer. The police concluded he had not consumed alcohol, separated him from the three other students who admitted alcohol consumption, and cleared him to proceed with the scheduled activities. Additionally, upon his own initiative, Ryan submitted to a polygraph examination, which he passed.

The School Board’s evidence against Ryan consisted of unsworn statements from two undisclosed individuals who were Ryan’s accusers. In Goss v. Lopez, 419 U.S. 565, 576, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975), the Supreme Court stated: “A 10-day suspension from school is not de minimis ... and may not be imposed in complete disregard of the Due Process Clause.” The Court went on to say, “ ‘Once it is determined that due process applies, the question remains what process is due.’ ” Id. at 577, 95 S.Ct. 729 (quoting Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972)). With the only evidence of alcohol consumption by Ryan coming from unnamed accusers, he was clearly entitled to more due process than he received.

The School Board erred in suspending Ryan because the findings set forth in the order of suspension do not support the charge that he was under the influence of alcohol at Grad Bash. Furthermore, the testimony presented at the hearing did not constitute competent substantial evidence that Ryan was under the influence. See § 120.68(10), Fla. Stat. (2005) (courts shall set aside findings of administrative judges that are not supported by competent substantial evidence).

Ryan’s father is an attorney. Less fortunate students would be unable to appeal the Board’s decision and would thus suffer the consequences of a suspension not supported by competent substantial evidence. The Supreme Court was mindful of such an impact when it stated in Goss: “If sustained and recorded, those charges could seriously damage the students’ standing with their fellow pupils and their teachers as well as interfere with later opportunities for higher education and employment.” 419 U.S. at 575, 95 S.Ct. 729.

We reverse Ryan’s suspension with finality and direct that any and all evidence of the suspension be removed from his record.

Reversed and remanded with directions.

CASANUEVA and LaROSE, JJ„ Concur.


text:
    Charles FINN, M.D., Appellant, v. Jennifer L. ELLIOTT, Appellee.
    No. 2D06-1702.
    District Court of Appeal of Florida, Second District.
    Aug. 3, 2007.
    Paula Walsh Rousselle of Saieva, Rous-selle & Stine, P.A., Tampa, for Appellant.
    Amy A. Catledge of Beltz & Ruth, P.A., St. Petersburg, for Appellee.
   PER CURIAM.

Charles Finn, M.D., appeals from an order imposing monetary sanctions upon him in connection with his participation as an independent medical examiner in a personal injury case. Because Dr. Finn was not properly served with timely notice of the hearing, we reverse.

In this case, the notice of hearing on the motion for sanctions was served by process server to Dr. Finn’s office on March 6, 2006, at 2:25 p.m. The hearing was scheduled for March 9, 2006, at 9:15 a.m. This effectively allowed Dr. Finn, a nonparty to the underlying litigation, two working days’ notice to obtain counsel and prepare for the hearing. Florida Rule of Civil Procedure 1.090(d) requires that notice of a hearing be served “a reasonable time before the time specified for the hearing.” Under the facts of this case, we find that two days’ notice to a nonparty to the underlying proceeding was insufficient. Cf. Harreld v. Harreld, 682 So.2d 635, 636 (Fla. 2d DCA 1996).

Because we conclude that the trial court’s order imposing sanctions upon Dr. Finn must be reversed due to inadequate notice, we decline to comment on the other issues raised in his appeal.

Reversed and remanded for proceedings consistent herewith.

DAVIS and VILLANTI, JJ., and SCHOONOVER, JACK R., Senior Judge, Concur.


text:
    M & R DRYWALL, INC. v. MAPP CONSTRUCTION, INC., Southgate Towers, LLC and R.W. Day and Associates, Inc.
    No. 2007-CC-1496.
    Supreme Court of Louisiana.
    Aug. 1, 2007.
   In re Travelers Casualty & Surety Company of America; Mapp Construction LLC et al.; — Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. 0, No. 529-351; to the Court of Appeal, First Circuit, No. 2007 CW 0359.

Denied.


text:
    STATE of Louisiana v. Norbert C. REYES.
    No. 2004-KK-0512.
    Supreme Court of Louisiana.
    Aug. 7, 2007.
   In re Reyes, Norbert C.; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. D, No. 358-909; to the Court of Appeal, First Circuit, No(s), 2004 KW 0353, 2004 KW 434.

Stay recalled. Writ denied moot.


text:
    STATE of Louisiana v. Kevin COLEMAN.
    No. 2007-KK-1617.
    Supreme Court of Louisiana.
    Aug. 7, 2007.
   In re Coleman, Kevin; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of St. Landry, 27th Judicial District Court Div. B, No. 06-3611; to the Court of Appeal, Third Circuit, No. KW 07-00768.

Denied.


text:
    STATE of Louisiana in the Interest of C.M.
    No. 2007-CK-1613.
    Supreme Court of Louisiana.
    Aug. 9, 2007.
   In re C.M.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Juvenile Court Orleans Parish, No. 2007-012-02-DQ-C; to the Court of Appeal, Fourth Circuit, No. 2007-C-0965.

Denied.


author: PETTIGREW, J.

text:
    Charlie JOHNSON v. EAST BATON ROUGE PARISH SCHOOL BOARD.
    No. 2006 CA 1010.
    Court of Appeal of Louisiana, First Circuit.
    March 28, 2007.

      Michael L. Jackson, Baton Rouge, for Plaintiff-Appellee Charlie Johnson.
    Karen D. Murphy, Baton Rouge, for Defendant-Appellant East Baton Rouge Parish School Board.
    Before: PETTIGREW, DOWNING, and HUGHES, JJ.
   PETTIGREW, J.

Ijn this workers’ compensation dispute, the claimant, Charlie Johnson, was injured in the course and scope of his employment as a roofer with the East Baton Rouge Parish School Board (“School Board”). Mr. Johnson has not worked since his injury. According to the record, the School Board paid workers’ compensation benefits to Mr. Johnson in the form of temporary total disability benefits at a rate of $282.00/ week from March 16, 1991 through July 17, 1992, as well as from April 6, 2000 through January 31, 2003. The School Board also paid Mr. Johnson supplemental earnings benefits at a rate of approximately $184.24/week from July 18,1992 through April 5, 2000, and from February 1, 2003 through May 31, 2003, at a rate of $124.67/ week. Mr. Johnson’s benefits were terminated on May 31, 2003, prompting him to file a disputed claim for compensation.

The matter proceeded to trial on December 21, 2005, at which time the parties stipulated to the date of the accident, March 11, 1991, and Mr. Johnson’s average weekly wage, $427.06, and presented the following issues to the workers’ compensation judge (“WCJ”) for consideration: (1) whether Mr. Johnson was permanently and totally disabled as a result of the March 11, 1991 accident; (2) whether Mr. Johnson was entitled to permanent and total disability benefits; (3) whether the School Board’s termination of Mr. Johnson’s benefits was arbitrary and capricious; and (4) whether Mr. Johnson was entitled to related penalties and attorney fees for the termination of his benefits. After listening to the testimony of the witnesses at trial and reviewing the applicable law and documentary evidence in the record, the WCJ rendered judgment from the bench in favor of Mr. Johnson and against the School Board. The WCJ found that Mr. Johnson was permanently and totally disabled and that permanent and total disability benefits were due retroactive to the date of termination (May 2003 — $284.71 X 138 weeks equals $39,289.98), plus judicial interest in the amount of $1,925.59, “until further order of the court.” The WCJ also awarded Mr. Johnson $10,000.00 in attorney fees, plus judicial interest in the amount of $1,410.62, for the School Board’s arbitrary and capricious ^termination of Mr. Johnson’s benefits. A judgment in accordance with these findings was signed by the WCJ on January 19, 2006. This appeal by the School Board followed.

On appeal, the School Board argues that the WCJ applied the wrong legal standard in concluding that Mr. Johnson was permanently and totally disabled and that the WCJ manifestly erred in awarding Mr. Johnson disability benefits retroactive to the termination date of his benefits. The School Board further contends the WCJ was manifestly erroneous in its determination that it was arbitrary and capricious in terminating Mr. Johnson’s benefits and, thus, the $10,000.00 award of attorney fees should be reversed. Moreover, the School Board asserts, the $1,410.62 in judicial interest attributed to the award of attorney fees was clearly wrong as it dates back to the date of judicial demand and represents prejudgment interest, which is not allowed on an award of attorney fees.

DISABILITY STATUS

Whether a claimant has carried his or her burden of proof and whether testimony is credible are questions of fact to be determined by the trier of fact. Allman v. Washington Parish Police Jury, 2004-0600, p. 3 (La. App. 1 Cir. 3/24/05), 907 So.2d 86, 88. Factual findings in a workers’ compensation case are subject to the manifest error-clearly wrong standard of review. McCray v. Delta Industries, Inc., 2000-1694, p. 4 (La. App. 1 Cir. 9/28/01), 809 So.2d 265, 269. 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. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840, p. 7 (La. 7/1/97), 696 So.2d 551, 556. Thus, “[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 though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1112 (La.1990). Consequently, when there are two permissible views of the evidence, the fact finder’s choice between them cannot be manifestly erroneous. Bolton v. B E & K Const., 2001-0486, p. 7 (La. App. 1 Cir. 6/21/02), 822 So.2d 29, 35.

| ¿The finding of disability within the framework of the workers’ compensation law is a legal rather than a purely medical determination. Therefore, the question of disability must be determined by reference to the totality of the evidence, including both lay and medical testimony. Ultimately the question of disability is a question of fact, which cannot be reversed in the absence of manifest error. Severio v. J.E. Merit Constructors, Inc., 2002-0359, p. 7 (La.App. 1 Cir. 2/14/03), 845 So.2d 465, 469.

As set forth in La. R.S. 23:1221(2)(e), when an employee is not engaged in any employment or self-employment, compensation for permanent total disability “shall be awarded only if the employee proves by clear and convincing evidence, unaided by any presumption of disability, that the employee is physically unable to engage in any employment or self-employment.” Moreover, before a claimant is found to be permanently and totally disabled, it shall be determined “whether there is reasonable probability that, with appropriate training or education, the injured employee may be rehabilitated to the extent that such employee can achieve suitable gainful employment and whether it is in the best interest of such individual to undertake such training or education.” La. R.S. 23:1226(D). Id., 2002-0359 at 10, 845 So.2d at 471.

After hearing from the witnesses and considering the documentary evidence in the record, the WCJ made the following findings concerning Mr. Johnson’s disability status:

Considering the law and the evidence and the arguments of counsel — the main issue in the case is whether or not Mr. Johnson is permanently and totally disabled and then the additional issue is whether or not any penalties and attorneys fees should be awarded.
First of all I would like to address the credibility of this claimant. The claimant testified here today and the court has carefully observed his composure, his facial expressions, demeanor, his mannerisms, tone of voice and the way he’s answered the questions. In comparing his answers to the other evidence in the case, the court makes a specific finding that the claimant is credible.
In looking at the other evidence in the case, some of the facts the court has considered in determining whether or not the claimant is permanent and totally disabled, the court has carefully reviewed the depositions of Dr. Mitchell, Dr. Iopollo, all the other medical records, the FCE, the surgeries involved that Mr. Johnson has undergone, the restrictions placed upon Mr. Johnson by his physicians and the FCE, which basically concluded that Mr. Johnson is capable physically of some type of | ¡^sedentary work on a part-time basis. The court has considered the claimant’s advanced age; 61 years of age and his educational background; being that he stopped in 11th grade at Scottlandville Senior High. He has not received a GED. He has not received any other type of education whatsoever. His work history has been in the unskilled labor market.
The court has reviewed the vocational rehabilitation reports and the deposition of Mr. Bott, which the court notes is the only evidence of vocational rehabilitation services in this case. Basically Mr. Bott’s opinion is uncontradicted. Mr. Bott concluded that the claimant has no transferable skills. He did objective testing to indicate that he is basically illiterate pursuant to the testing performed. The jobs identified by GE-NEX, which was hired by the defendants, were not suitable in any way for the claimant. This evidence has not been contradicted by the defendant.
The court makes a finding of fact that physically the claimant is capable of performing some type of sedentary work on a part-time basis, however, he [is] limited by his vocational rehabilitation skills, his education, his employment background, his advanced age and all the factors that Mr. Bott discussed in his deposition and his report.
The court finds that the jobs identified by GENEX were not suitable for claimant, that GENEX was solely looking at his physical limitations, not his mental capabilities. In fact, Ms. Lee’s testimony substantiated that they were only looking at Mr. Johnson’s physical capabilities. She testified to the jobs identified and indicated Mr. Johnson was physically capable of performing the jobs. There is no testimony from the claims adjustor whatsoever concerning his mental capability and there has been no vocational rehabilitation evidence, other than Mr. Bott’s, that the mental capability of Mr. Johnson was considered.
The bottom line is that the defendant in this case just totally overlooked Mr. Johnson as a whole. They separated his physical self from his mental self, which is not appropriate under these circumstances. The court finds based upon all of these factors that Mr. Johnson is permanently and totally disabled and that permanent and total benefits are due retroactive back to the date of termination, which the court finds to be May of 2003. Those benefits shall continue until the further order of the court.

Following an extensive review of the record and exhibits in this matter, we are unable to say the WCJ erred in determining that based on Mr. Johnson’s physical restrictions, the failed attempt at rehabilitation and/or re-training, his limited education, and lack of transferable skills, he was permanently and totally disabled and entitled to reinstatement of his full benefits. The WCJ made a specific finding that Mr. Johnson was a credible witness and that the jobs identified for Mr. Johnson “were not suitable in any way” for him. The WCJ’s ruling is reasonable and supported by the record. Thus, we must affirm the portion of the judgment that found Mr. Johnson permanently and [fitotally disabled and awarded him permanent and total benefits retroactive to the termination of his benefits and continuing until further order of the court.

AWARD OF ATTORNEY FEES

The WCJ found that the School Board was arbitrary and capricious in terminating Mr. Johnson’s benefits and awarded him $10,000.00 in attorney fees, noting as follows:

Moving on to penalties and attorneys fees, in this case the benefits have been paid for a long time in excess of 520 weeks, but they were terminated when these jobs were identified by GENEX, which were only considering the physical aspects of claimant and nothing else, therefore the jobs were not suitable. Based upon the defendants relying upon jobs that would physically fit the claimant and not looking at Mr. Johnson all-together; his educational background, his employment history and all the other factors I have addressed in my ruling, the court finds that to be arbitrary and capricious and without probable cause.
The court realizes that the Rush case limits the penalties to no penalties; to only attorney fees. That’s the Rush case from the supreme court. Penalties do not apply based on the Rush case, but attorneys fees do apply. Considering the experience of the attorneys involved in this matter, Mr. Jackson and Mr. Bell, the work they have performed; the record is quite lengthy, the benefits that were sought for Mr. Johnson, the benefits that have been awarded, the permanent and total disability benefits and all the work involved, the court finds a reasonable attorney fee to be $10,000 and so awards that amount. All court costs are assessed against the defendants and legal interest is awarded in accordance with law.

The WCJ’s determination of whether an employer or insurer should be cast with attorney fees in a workers’ compensation action is essentially a question of fact subject to the manifest error or clearly wrong standard of review. Handy v. TEMBEC, 2004-1877, p. 9 (La.App. 1 Cir. 11/4/05), 927 So.2d 401, 407, writ denied, 925 So.2d 1260, 2005-2495 (La.3/31/06). Based on our review of the record herein, we cannot |7say the WCJ was clearly wrong in finding that the School Board was arbitrary and capricious in terminating Mr. Johnson’s benefits. Accordingly, we affirm the WCJ’s award of $10,000.00 in attorney fees to Mr. Johnson. However, we must address the $1,410.62 in judicial interest that was assessed on the attorney fee award.

In Sharbono v. Steve Lang & Son Loggers, 97-0110, p. 10 (La.7/1/97), 696 So.2d 1382, 1388-1389, the Louisiana Supreme Court addressed the award of attorney fees in workers’ compensation cases and the calculation of interest due on same.

Because attorney’s fee awards depend for their very existence upon a discretionary finding of the trier of fact, any amount of attorney’s fees awarded to the victor is “due” only from the date of judgment. Prior to that time, the victor was not entitled to those funds. Because the losing party did not deprive the victor of the use of funds to which the victor was entitled, no prejudgment interest may be calculated on the award of attorney’s fees. Rather, post-judgment interest on that amount may be calculated only from the date the debt came into being and thus became due to the date it is paid.- To hold otherwise would be to unfairly compensate the victor, and penalize the loser, for a deprivation which never took place. [Emphasis added.]

Thus, with reference to legal interest on the award of penalties and attorney fees, the supreme court has decided that such interest is due only from the date of judgment until paid. See also Roussell v. St. Tammany Parish School Bd., 2004-2622, p. 20 (La.8/23/06), 943 So.2d 449, 464; Thibodaux v. Arthur Rutenberg Homes, Inc., 2004-1500, p. 13 (La.App. 1 Cir. 12/22/05), 928 So.2d 80, 89; Ibrahim v. Hawkins, 2002-0350, p. 17 n. 9 (La.App. 1 Cir. 2/14/03), 845 So.2d 471, 485, n. 9. Accordingly, we amend the judgment to reflect that judicial interest on the attorney fee award is due from the date of the judgment until paid. ,

DECREE

For the above and foregoing reasons, we affirm the WCJ’s judgment insofar as it found Mr. Johnson to be permanently and totally disabled and reinstated his. permanent and total disability benefits. We affirm the WCJ’s finding that the School Board was | ^arbitrary and capricious in its termination of Mr. Johnson’s benefits and affirm the award of $10,000.00. in attorney fees to Mr. Johnson. However, we amend the award of judicial interest associated with same to reflect that judicial interest is due on the $10,000.00 attorney fee award from the date of the judgment until paid. Appeal costs in the amount of $507.85 are assessed against the School Board. This memorandum opinion is issued in compliance with Uniform Rules — Courts of Appeal, Rule 2-16.1(B).

AFFIRMED AS AMENDED.

      . At all pertinent times to this case, La. R.S. 23:1201.2 provided for attorney fees as follows:
      Any employer or insurer who at any time discontinues payment of claims due and arising under this Chapter, when such discontinuance is found to be arbitrary, capricious, or without probable cause, shall be subject to the payment of all reasonable attorney fees for the prosecution and collection of such claims. The provisions of R.S. 23:1141 limiting the amount of attorney fees shall not apply to cases where the employer or insurer is found liable for attorney fees under this Section. The provisions of R.S. 22:658(C) shall be applicable to claims arising under this Chapter.
      Although the statute was subsequently repealed by La. Acts 2003, No. 1204, § 2, La. R.S. 23:1201.2 is now incorporated in La. R.S. 23:1201.

      . We note, as did Mr. Johnson in his appeal brief, that this court has previously awarded judicial interest on penalties and attorney fees in workers’ compensation cases from the date of judicial demand until paid. See Authement v. Wal-Mart, 2002-2434, p. 13 (La.App. 1 Cir. 9/26/03), 857 So.2d 564, 575; Hundley v. Bis-so Properties, 2002-2110, pp. 10-11 (La.App. 1 Cir. 6/27/03), 858 So.2d 545, 551-552; Spencer v. Gaylord Container Corp., 96-1230, p. 17 (La.App. 1 Cir. 3/27/97), 693 So.2d 818, 829-830; Kim v. East Jefferson Hosp., 96-0838, p. 12 (La.App. 1 Cir. 2/14/97), 691 So.2d 127, 134.


author: PARRO, J.

text:
    Doug WELBORN, in his Official Capacity as Clerk of Court for East Baton Rouge Parish v. The 19TH JUDICIAL DISTRICT COURT and The East Baton Rouge Parish Family Court.
    No. 2006 CA 2307.
    Court of Appeal of Louisiana, First Circuit.
    May 4, 2007.

      Sheri M. Morris, Jeffrey K. Cody, Shows, Cali, Berthelot & Morris, L.L.P., Baton Rouge, for Plaintiff-Appellee Doug Welborn, in his capacity as Clerk of Court for East Baton Rouge Parish.
    Charles C. Foti, Jr., Attorney General, David G. Sanders, Patricia H. Wilton, Assistant Attorney Generals, Baton Rouge, for Defendants-Appellants The 19th Judicial District Court.
    Charles C. Foti, Jr., Attorney General, Van A. Heard, W. Wayne Gaudin, Jr., Assistant Attorney Generals, Baton Rouge, for Defendants-Appellants The East Baton Rouge Parish Family Court.
    Before: PARRO, GUIDRY, and McClendon, jj.
   PARRO, J.

I ¡fin this suit for declaratory judgment, Doug Welborn, who serves as the Clerk of Court for East Baton Rouge Parish (the Clerk of Court), sought clarification of the subject-matter jurisdiction of the Nineteenth Judicial District Court (the 19th JDC) vis-a-vis the East Baton Rouge Parish Family Court (the Family Court) in actions brought under the Domestic Abuse Assistance Act and/or the Protection from Dating Violence Act when the victim of violence is a “dating partner” or unrelated “household member” of the person against whom acts of abuse are alleged. From a judgment declaring that both courts have concurrent subject-matter jurisdiction over such matters, both courts have appealed. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In 1979, the Louisiana legislature enacted the “Protection from Family Violence Act,” LSA-R.S. 46:2121, et seq., to provide community shelters and social services to victims of family violence. In 1982, those protections were enhanced and expanded with the passage of the “Domestic Abuse Assistance Act,” LSA-R.S. 46:2131, et seq., which provided easily accessible civil remedies for domestic violence between family members or household members. The genesis for this lawsuit was legislation enacted in 2001 that extended the services available under these statutes to “dating partners.” In response to that legislation, the Family Court executed an en banc order on September 14, 2001, declaring that it lacked subject-matter jurisdiction to hear petitions filed by “dating partners” seeking relief pursuant to the Protection from Dating Violence Act. This.was followed, on January 14, 2004, with a second en banc order declaring the Family Court also lacked subject-matter jurisdiction over petitions brought by “household members,” as those persons are defined in LSA-R.S. 46:2132(4). In both cases, the Family Court based these orders on the jurisdictional parameters of LSA-R.S. 13:1401, which grants exclusive jurisdiction to the Family Court for actions involving marital and parent/child legal relationships, categories into which neither dating partners nor unrelated household members fit.

|sNot long after this second en banc order, a woman whose “dating partner” was allegedly abusing her filed a petition in the 19th JDC, seeking protection under the subject statutes. The defendant filed a peremptory exception raising the objection of lack of subject-matter jurisdiction, which the district court judge sustained. Since the Family Court had refused to hear such cases, and the 19th JDC had ruled that it had no subject-matter jurisdiction over her petition, the plaintiff was left without any remedy at law. She filed an application for an emergency supervisory writ with this court, which granted the writ, reversed the ruling of the district court judge, and remanded the case for further proceedings, stating that the 19th JDC had concurrent jurisdiction with the Family Court over such claims. See Collins v. Jack, 05-0745 (La.App. 1st Cir.4/13/05) (unpublished writ action).

Following this writ action, the Chief Judge of the 19th JDC ordered the Clerk of Court to randomly allot such cases among the civil judges of the 19th JDC and the judges of the Family Court. The Clerk of Court initiated such random allotment, but the Family Court continued to refuse these cases on the grounds that such matters were not proceedings “appropriate to” the Family Court, because they were not brought by family members. After various legal maneuvers that left the Clerk of Court in a quandary concerning how to allot such cases, he filed this suit against the 19th JDC and the Family Court, seeking a declaratory judgment regarding the proper method of allotting petitions from “dating partners” or “household members” seeking relief from domestic violence. All the 19th JDC judges recused themselves, and an ad hoc judge, retired Judge Don Aaron, Jr., was appointed by the Louisiana Supreme Court to handle the case.

In a supplemental and amending answer, the Family Court acknowledged the writ action of this court, but averred that because the Family Court was not a party to that action and the decision was not published, the writ action was not binding precedent. In oral argument at the trial of the case, the 19th JDC agreed that this court’s writ action was not binding, but was “persuasive authority.” The ad hoc judge handling the case apparently was persuaded by this court’s conclusion, as he agreed that the Family Court and the 19th JDC had concurrent jurisdiction over actions brought |4by “household members” and “dating partners” seeking relief from domestic violence and abuse. A judgment to that effect was signed on September 4, 2006.

Both the 19th JDC and the Family Court filed suspensive appeals. The 19th JDC claims the Family Court has exclusive jurisdiction over all domestic violence claims, including those of “household members” and “dating partners.” The Family Court argues that the ad hoc judge erred in decreeing that it had any subject-matter jurisdiction over claims brought by such parties. The Clerk of Court takes no position on the issue, but merely seeks de-fínitive guidance from this court so that random allotment can be accomplished properly and expeditiously.

APPLICABLE LAW

The Louisiana Constitution grants original jurisdiction of all civil and criminal matters to the district courts, except as otherwise authorized by the constitution. See LSA-Const. art. V, § 16(A). Section 18 of Article V states that “Notwithstanding any contrary provision of Section 16 of this Article, juvenile and family courts shall have jurisdiction as provided by law.”

In 1975, pursuant to LSA-Const. art. XIV, § 16, the Louisiana legislature incorporated former Section 53 of Article VII of the Constitution of 1921 into the Revised Statutes as part of LSA-R.S. 13:1401 through 1409. This legislation continued the existence of the Family Court as a statutory court with exclusive jurisdiction over a number of legal actions, including divorce, annulment of marriages, establishment or disavowal of paternity, spousal and child support, and custody and visitation of children, as well as other matters incidental to such proceedings. See LSA-R.S. 13:1401(A). In addition, subsection B of LSA-R.S. 13:1401 currently states: “The family court for the parish of East Baton Rouge has all such additional jurisdiction, power, and authority not or hereafter provided by law.” This wording of what is now subsection B was included |5in the statute when its provisions were amended and re-enacted by 1990 La. Acts, No. 158, § 1, effective July 1,1990.

The Protection from Family Violence Act was enacted in 1979 for the purpose of reducing serious and fatal injuries to the victims of family violence and making available to them necessary services, including shelter, counseling, and referrals to social services, medical care, and legal assistance. Its protections were available to “family or household members,” defined as spouses, parents, children, stepparents, stepchildren, foster parents, foster children, and grandparents or their grandchildren. LSA-R.S. 46:2121.1(1). There is no separate definition of “household members” in this statute. This act authorized the creation of community-based shelters and other services for victims of family violence. LSA-R.S. 46:2122-2128. The act did not provide any enforcement mechanism through the courts, nor is there any jurisdictional statement in it.

The Domestic Abuse Assistance Act, enacted in 1982, recognized that the complex legal and social problems created by domestic violence were not adequately addressed in the laws regulating the dissolution of marriage and that the policies and practices of law enforcement agencies and prosecutors “resulted in different treatment of crimes occurring between family or household members and those occurring between strangers.” LSA-R.S. 46:2131. This act defined domestic abuse as physical or sexual abuse and any offense against the person committed by one family or household member against another. LSA-R.S. 46:2132(3). It defined “family members” as spouses, former spouses, parents and children, stepparents, stepchildren, foster parents, and foster children; “household members” were separately defined as any person of the opposite sex presently or formerly living in the same residence with the defendant as a spouse, whether married or not, seeking protection under the act. LSA-R.S. 46:2132(4). Louisiana Revised Statute 46:2133(A) states: “Any court in the state of Louisiana which is empowered to hear family or juvenile matters shall have jurisdiction over proceedings appropriate to it under this Part.” This act provides | (¡victims of abuse with a simple civil process for obtaining temporary restraining orders, speedy hearings, protective orders, and other legal relief designed to protect them from domestic violence. LSA-R.S. 46:2133-2135.

The Protection from Dating Violence Act, enacted in 2001, defines “dating partner” as any person who is or has been in a social relationship of a romantic or intimate nature with the victim, where the existence of such a relationship can be determined by evaluating certain objective factors delineated in the statute. LSA-R.S. 46:2151(B). This act provides to “dating partners” all of the services, benefits, and other forms of assistance available under Chapter 28 of Title 46 of the Revised Statutes, which includes LSA-R.S. 46:2121, et seq. and LSA-R.S. 46:2131, et seq. While this act does not describe the forms of relief available or designate which court or courts are to have jurisdiction over such claims, it incorporates by this reference all of the provisions of the other sections. Accordingly, subject-matter jurisdiction over such claims is granted by LSA-R.S. 46:2133(A) to any court in this state that is empowered to hear family or juvenile matters; such a court shall have jurisdiction over proceedings “appropriate to it” under LSA-R.S. 46:2131, et seq.

Pursuant to the standard rules for statutory construction: (1) it is presumed that every provision of law was intended to serve some useful purpose; (2) it is not presumed that the lawmaker intended for any part of a law to be meaningless; (3) the lawmaker is presumed to have enacted the law with full knowledge of all other laws pertaining to the same subject matter; (4) it is the duty of the courts to interpret a provision of law which harmonizes and reconciles it with other provisions pertaining to the same subject matter; and (5) when a law is susceptible to two or more interpretations, that which affords a reasonable and practical effect to the entire act is preferred to one that renders part of the act nugatory. Ransome v. Ransome, 01-2361 (La.App. 1st Cir.6/21/02), 822 So.2d 746, 754.

ANALYSIS

The Louisiana Constitution provides original jurisdiction of all civil and criminal matters to the district courts. See LSA-Const. art. V, § 16. Exceptions to that jurisdiction must be specified in other constitutional provisions or statutes. Article V, lySection 18 provides one of those exceptions by stating that juvenile and family courts “shall have jurisdiction as provided by law.” In other words, the constitution gives the legislature the authority to determine the limits of the jurisdiction of juvenile and family courts. One statutory enactment pursuant ,to this article is LSA-R.S. 13:1401, which in subsection (A) grants the Family Court exclusive jurisdiction over certain matters delineated in the statute, and in subsection (B) grants it “all such additional jurisdiction, power, and authority now or hereafter provided by law.” Thus, while subsection (A) specifies certain matters over which the Family Court is to have exclusive jurisdiction, it does not limit the court to those matters only. Rather, the expansion of the Family Court’s jurisdiction is authorized and anticipated by subsection (B).

This court has recognized several instances in which the Family Court’s jurisdiction was expanded by later legislative enactments to include matters other than those originally described in LSA-R.S. 13:1401(A). See Ransome v. Ransome, 99-1291 (La.App. 1st Cir.1/21/00), 791 So.2d 120, 123; Gerald v. Gerald, 99-1328 (La.App. 1st Cir.6/23/00), 762 So.2d 1241, 1242. The legislative expansion of the Family Court’s jurisdiction was also the subject of the Louisiana Supreme Court’s decision in Spinosa v. Spinosa, 05-1935 (La.7/6/06), 934 So.2d 35, 41-47. While none of these cases addresses the particular issue before us in this case, all recognize that the jurisdiction of the Family Court is not limited by the particular types of actions described as exclusive to that court in LSA-R.S. 13:1401(A), but can be expanded by legislative acts to include subject-matter jurisdiction over other matters. See also Boudreaux v. Boudreaux, 93-0951 (La.App. 1st Cir.5/5/95), 655 So.2d 465, 468, writ not considered, 95-1444 (La.9/22/95), 660 So.2d 468 (recognizing the recent trend toward expansion of the jurisdiction of the family courts, as evidenced by constitutional and statutory amendments); Wooley v. State Farm Fire & Cas. Ins. Co., 04-0882 (La.1/19/05), 893 So.2d 746, 761-62 (stating the legislature is permitted to enact any legislation the state constitution does not prohibit).

In Ransome, 822 So.2d at 753, this court determined that the Family Court did not have jurisdiction over a garnishment proceeding brought by the former wife against her former husband’s attorney, because such action was not incidental to the main demand, was a separate and distinct proceeding from the original suit, was not a garnishment “for spousal or child support and attorney fees,” and was not an action “between former spouses,” as the statute required, but was between a former spouse and a third party. This court stated that “there are no other provisions in law that give the [Fjamily [Cjourt jurisdiction over the execution of its judgments through garnishment against a third party.” Ransome, 822 So.2d at 755. Unlike that case, in which garnishment proceedings against third parties were not mentioned in any legislative grants of subject-matter jurisdiction, the matter before us involves unrelated “household members” and “dating partners,” both of whom are, for certain domestic violence actions, specifically described and defined in other provisions of law as falling within the jurisdiction of any court in this state empowered to hear family or juvenile matters. The Family Court is empowered to hear family matters. Therefore, jurisdiction over actions for relief from domestic violence brought by unrelated “household members” or “dating partners” is specifically added to the Family Court’s jurisdiction.

The Family Court argues that its jurisdiction is limited by LSA-R.S. 13:1401(A) to “family members.” Therefore, the addition of claims brought by unrelated “household members,” as defined in LSA-R.S. 46:2132(4), and by “dating partners,” as defined in LSA-R.S. 46:2151(33), is not authorized, because these matters are not “appropriate to it,” as required by LSA-R.S. 46:2133(A). We are not persuaded by this argument. Rather, as was brought out in oral arguments before this court, we conclude that the words “appropriate to it” in this jurisdictional statement refer to age-related distinctions between family courts and juvenile courts. We note also that LSA-R.S. 13:1401(B) is |9not limited in scope. It does not confine the Family Court’s additional jurisdiction to matters “appropriate to it,” but grants it “all such additional jurisdiction, power, and authority now or hereafter provided by law.” If this court accepted the Family Court’s argument in this case, we would render meaningless the provisions of the statutes specifically defining “household members” and “dating partners” and granting them the right to seek relief from domestic violence in courts empowered to hear family matters. We conclude, therefore, that the Family Court does have subject-matter jurisdiction over domestic violence claims by “household members,” as defined in LSA-R.S. 46:2132(4), and by “dating partners,” as defined in LSA-R.S. 46:2151(B).

The remaining question for this court is whether the Family Court’s subject-matter jurisdiction over such cases is exclusive, or whether it is concurrent with the 19th JDC. As previously noted, the 19th JDC has original jurisdiction over all civil and criminal matters, unless some constitutional or statutory provision removes that power and grants it to another court. LSA-Const. art. V, § 16. Louisiana Revised Statute 13:1401(A) is such a provision, because it assigns exclusive jurisdiction over certain specified types of claims to the Family Court, thus divesting the 19th JDC of jurisdiction over such actions.

In contrast to the grant of exclusive jurisdiction in subsection 1401(A), the other statutes we are reviewing do not specify that the jurisdiction assigned therein is exclusive. The Domestic Abuse Assistance Act states in LSA-R.S. 46:2133, “Any Louisiana court that is empowered to hear family or juvenile matters shall have jurisdiction over proceedings appropriate to it under this Part” (emphasis added), which includes actions brought by unrelated “household members.” And the Protection from Dating Violence Act, while it does not include a specific grant of jurisdiction, provides to “dating partners” all of the services, benefits, and other assistance available under Chapter 28 of Title 46 of the Revised Statutes, which includes LSA-R.S. 46:2131, et seq. Of those provisions, only LSA-R.S. 46:2133 has a jurisdictional statement.

We conclude that the words “shall have jurisdiction” in LSA-R.S. 46:2133 do not have the same connotation as the words “shall be a court of record with exclusive jurisdiction,” as stated in LSA-R.S. 13:1401(A). Clearly, when the legislature exercises |inits constitutional authority to divest a district court of jurisdiction over certain matters and assign those matters to another court or courts, it does so by using the word, “exclusive.” Neither the Domestic Abuse Assistance Act nor the Protection from Dating Violence Act uses the word “exclusive” in assigning authority to the Family Court over the types of claims described therein. While the word “shall” in a statute is mandatory, mandatory does not have the same meaning as “exclusive.” Therefore, the 19th JDC was not divested of its authority in domestic violence cases by the provisions of LSA-R.S. 46:2133. Accordingly, we hold that the 19th JDC has concurrent jurisdiction with the Family Court over such matters.

CONCLUSION

The judgment of September 4, 2006, is affirmed. All costs of this appeal, in the amount of $680.00, are assessed equally to the Family Court and the 19th JDC.

AFFIRMED.

      . The “Protection from Dating Violence Act” was enacted by 2001 La. Acts, No. 1180, § 1, and is found at LSA-R.S. 46:2151.

      . The 19th JDC pleads, in the alternative, that if this court finds that jurisdiction in these matters is not vested solely with the Family Court and the juvenile court for East Baton Rouge Parish, then jurisdiction in its court is concurrent with that of the Family Court and the juvenile court.

      . This constitutional article also includes certain other exceptions to the jurisdiction of, and grants of jurisdiction to, the district courts; however, these are not relevant to this case.

      . See 1975 La. Acts, No. 89, § 1. This statute was later amended to also grant exclusive jurisdiction for actions for partition of community property and the settlement of claims arising from matrimonial regimes as a result of divorce or annulment of marriage.

      . LSA-R.S. 46:2121, et seq., was added by 1979 La. Acts, No. 746, § 1.

      . LSA-R.S. 46:2131, et seq., was added by 1982 La. Acts, No. 782, § 2.

      . Note that this opinion cites two different Ransome cases in which different jurisdictional decisions were made on the basis of different statutes. See Ransome, 791 So.2d 120 and Ransome, 822 So.2d 746.

      . We note, however, that this factor did not deprive the Family Court of jurisdiction over a former spouse's action against a trust into which she averred her former husband had fraudulently diverted community funds during the marriage without her permission. See Spinosa, 934 So.2d at 46-47. The difference is that the Ransome case involved a specific limitation of authority for enforcement of judicial determinations "between former spouses” and garnishments for spousal and child support and attorney fees only, thereby restricting the Family Court's jurisdiction in such cases. See LSA-R.S. 13:1401 (A)(1) and (2).


author: GAIDRY, J.

text:
    LOUISIANA STATE BOARD OF ETHICS v. Joe AIDOO, Raymond Brown, Yancy Carter, D’andrea McMooain Chatman, James “Jimbo” Davlin, Bobby D. Higginbotham, Richard L. Nunnally, Donald Ray Pryor.
    No. 2006 CA 1243.
    Court of Appeal of Louisiana, First Circuit.
    May 4, 2007.
    Alesia M. Ardoin, Kathleen M. Allen, R. Gray Sexton, Baton Rouge, Counsel for Plaintiff/Appellee Louisiana State Board of Ethics.
    Ike Spears, New Orleans, Counsel for Defendant/Appellant Bobby D. Higginbotham.
    Before: KUHN, GAIDRY, and WELCH, JJ.
   GAIDRY, J.

|Jn this case, Bobby D. Higginbotham appeals a judgment converting an order of the Louisiana Board of Ethics assessing civil penalties for his failure to timely file a required campaign finance report into an order of the district court. We affirm.

DISCUSSION

Louisiana Revised Statutes 18:1505.4 provides that any person who is required to file a report under the Campaign Finance Disclosure Act who knowingly fails to timely file the report may be assessed a civil penalty as provided by La. R.S. 42:1157 for each day until the report is filed. The amount of the penalty for a candidate for district office may be sixty dollars per day, up to a maximum of two thousand dollars. La. R.S. 18:1505.4(A)(2)(a)(ii). An additional civil penalty of up to ten thousand dollars may be imposed, after a hearing by the supervisory committee with notice to the party who is the subject of the hearing, if the required report has still not been filed by the eleventh day after it was due. La. R.S. 18:1505.4(A)(4)(b).

The staff of the Louisiana Board of Ethics (“the Board”) may automatically assess and order the payment of late filing fees for failure to timely file a required report. La. R.S. 42:1157(A)(1). A person assessed with late filing fees may appeal in writing to the Board within thirty days after the order requiring the payment of late feés is mailed. The appeal should set forth facts which tend to prove that he had good cause for filing late. All such appeals will be placed on the Board’s agenda for consideration, and the late filer may request an appearance before the Board. La. Adm.Code 52:1.1205. A person aggrieved by an order of the Board may appeal the Board’s decision to the Court of Appeal, First Circuit, if he ^applies to the Board within thirty days after the Board’s decision becomes final. La. R.S. 42:1142. A valid, final order of the Board may be converted into an order of the court by the filing of a rule to show cause in the district court. La. R.S. 42:1135.

On August 11, 2005, the Board found Bobby D. Higginbotham in violation of La. R.S. 18:1505.1(B) of the Campaign Finance Disclosure Act for his failure to file an Annual/Supplemental Campaign Finance Disclosure Report in connection with the October 4, 2003 election. This report was due by February 15, 2005. In an order signed August 16, 2005, the Board ordered Mr. Higginbotham to pay $60 per day in late fees, up to a maximum of $2,000.00. The Board imposed an additional civil penalty in accordance with La. R.S. 18:1505.4(A)(4)(b) in the amount of $6,000.00, which would be suspended if the report was filed by September 11, 2005. Mr. Higginbotham did not appeal the Board’s order, nor did he make payment in accordance with the order. On December 13, 2005, the Board filed a petition in accordance with La. R.S. 42:1135, seeking to have its order converted into an order of the court. At the time of the filing of the Board’s petition, Mr. Higginbotham had failed to pay any of the $8,000.00 in civil penalties. After a January 23, 2006 hearing at which Mr. Higginbotham was neither present nor represented by counsel, the court converted the Board’s order into an order of the court and also ordered Mr. Higginbotham to pay legal interest and his pro-rata share of the court costs.

Mr. Higginbotham appealed, alleging that the trial court erred in upholding the Board’s decision. He argued that the Board’s decision was |4arbitrary and capricious because the interest of the public would be served by the assessment of a reduced fíne and because the penalties assessed against him are not in proportion to the severity of the offense.

Mr. Higginbotham argues that the purpose of the Campaign Finance Disclosure Act, to ensure an informed electorate and to establish public trust in elected officials, would still be served by a reduced fíne. In support of this argument, Mr. Higginbotham cites In re: Ourso, 05-0543 (La.App. 1 Cir. 6/9/06), 938 So.2d 748, writ denied, 06-2205 (La.11/17/06), 942 So.2d 542, in which the Board imposed a $1,000.00 civil penalty for each of the defendant’s four violations of the Campaign Finance Disclosure Act, rather than the $2,000.00 maximum penalty for each, because the Board felt that the public interest would still be served by the lesser fíne. Mr. Higginbotham argues that he and Mr. Ourso both violated the Campaign Finance Disclosure Act; therefore it was an abuse of discretion for the Board to assess an $8,000.00 penalty to him instead of a reduced fine. It is misleading, however, for Mr. Higginbotham to compare his $8,000.00 fíne to Mr. Ourso’s $4,000.00 fine. Mr. Ourso was assessed four individual civil penalties in the amount of $1,000.00 each under La. R.S. 18:1505.4(A)(2)(a)(ii) for four reports which were not timely filed. Mr. Higginbotham was only assessed $2,000.00 in late fees under La. R.S. 18:1505.4(A)(2)(a)(ii). The additional $6,000.00 civil penalty was assessed under La. R.S. 18:1505.4(A)(4)(b) after a hearing because Mr. Higginbotham failed to file the required report by the eleventh day after it was due. Furthermore, Mr. Higginbotham failed to appear at the hearing to | firequest a reduced fine. In fact, he appears to have ignored the proceedings against him altogether until the order was converted into a judgment of the court and he filed this appeal.

In support of his argument that the penalty assessed against him was not in proportion to the severity of the offense, Mr. Higginbotham alleges that in the past the Board has reduced unpaid fines assessed against other political officials. Again, we note that Mr. Higginbotham failed to appeal the assessment of late fees to the Board, failed to appeal the Board’s decision to this court before it became final, and also failed to appear or have an attorney appear on his behalf at the hearing in the district court. Mr. Higginbotham also failed to avail himself of the opportunity to avoid the $6,000.00 civil penalty by simply filing the required report before September 11, 2005.

Judicial review of rulings of the Board is conducted in accordance with the Louisiana Administrative Procedure Act and is confined to the record as developed in the administrative proceedings. La. R.S. 42:1143 and 49:964(F). A reviewing court may reverse or modify the Board’s decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: (1) in violation of constitutional or statutory provisions; (2) in excess of the agency’s statutory authority; (3) made upon unlawful procedure; (4) affected by other error of law; (5) arbitrary, capricious, or an abuse of discretion; or (6) not supported and sustainable by a preponderance of evidence as determined by the reviewing court. La. R.S. 49:964(G); In re: Corbett L. Ourso, Jr., 05-0543 (La.App. 1 Cir. 6/9/06), 938 So.2d 748, writ denied, 06-2205 (La.11/17/06), 942 So.2d 542.

lí;We disagree with Mr. Higginbotham’s assertions that the Board’s decision in assessing civil penalties in accordance with the law was arbitrary, capricious, or an abuse of discretion. The judgment of the district court converting the Louisiana Board of Ethics’ order into an order of the court is affirmed. All costs of this appeal are assessed to Bobby D. Higginbotham.

AFFIRMED.

      . La. R.S. 18:1505.1(B) provides that a failure to submit the reports required by the Campaign Finance Disclosure Act at the time required shall constitute a violation of the Act.

      . The petition filed by the Board actually names eleven individual defendants. Separate judgments were rendered for each defendant, and Mr. Higginbotham is the only defendant who has appealed.

      . La. R.S. 18:1482 provides: “The legislature recognizes that the effectiveness of representative government is dependent upon a knowledgeable electorate and the confidence of the electorate in their elected public officials. The legislature, therefore, enacts this Chapter to provide public disclosure of the financing of election campaigns and to regulate certain campaign practices.”