author: GUIDRY, J.

text:
    Melanie D. RIDENOUR, by and on behalf of her Minor Daughter, Christine Ridenour, and Melanie D. Ridenour, Individually v. Cheri S. REED, a.k.a. Cheri L. Goode, Liberty Mutual Fire Insurance Company, Jennifer Harris, and American Modern Home Insurance Company.
    No. 2005 CA 1849.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 20, 2006.

      Jeffry L. Sanford, Baton Rouge, Counsel for Plaintiff/Appellant Melanie Riden-our.
    F. Scott Kaiser, Erin Wilder-Doomes, Gregory T. Stevens, Baton Rouge, Counsel for Defendant/Appellee American Modern Home Insurance Company.
    Kimberly L. Hood, Baton Rouge, Counsel for Defendant Jennifer Harris.
    Before: PARRO, GUIDRY, and McClendon, jj.
   GUIDRY, J.

li>The mother of a minor child who was injured by a dog appeals a summary judgment rendered in favor of an insurance company defendant. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

On November 7, 2003, five-year-old Christine Ridenour accompanied her father on a visit to the home of Jennifer Harris, located at 36053 Race Horse Road in Pearl River, Louisiana. In the course of the visit, the minor child of Jennifer Harris’ neighbor invited Christine next door to play with the child’s dog and the dog’s puppies. While she was visiting in the neighbor’s home, the dog attacked Christine, inflicting bite and scratch wounds to Christine’s face, left leg, and hip.

Melanie Ridenour, Christine’s mother, filed a petition for damages, individually and on behalf of Christine, for the injuries suffered by Christine in the neighbor’s home. Ms. Ridenour named Jennifer Harris, for her alleged negligent supervision of Christine while the child was entrusted to her care, and American Modern Home Insurance Company (American Modern), as the alleged liability insurer of Jennifer Harris, as defendants in the petition. American Modern answered the petition denying all liability and later filed a motion for summary judgment, asserting that Jennifer Harris was not an insured under policy number 0780006741682 issued to James Harris to insure the property located at 36058 Race Horse Road. The trial court granted the motion for summary judgment in favor of American Modern following the trial on the motion, which judgment Ms. Ridenour devolutively appeals.

| .APPLICABLE LAW

Appellate courts review the granting of a motion for summary judgment de novo, using the same criteria that govern the trial court’s consideration of whether summary judgment was appropriate. Bel v. State Farm Mutual Automobile Insurance Co., 02-0360, p. 3 (La.App. 1st Cir.2/14/03), 845 So.2d 459, 461, writ denied, 03-0734 (La.5/30/03), 845 So.2d 1058. Summary judgment shall be rendered if there is no genuine issue of material fact and the mov-ant is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). A motion for summary judgment is properly granted when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B).

Interpretation of an insurance policy usually involves a legal question that can be properly resolved in the framework of a motion for summary judgment. Bonin v. Westport Insurance Corporation, 05-0886, p. 4 (La.5/17/06), 930 So.2d 906, 910. An insurance policy is a contract between the parties and should be construed by using the general rules of interpretation of contracts set forth in the Louisiana Civil Code. LeBlanc v. Aysenne, 05-0297, p. 3 (La.1/19/06), 921 So.2d 85, 89.

The Civil Code provides that interpretation of a contract is the determination of the common intent of the parties and when the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent. La. C.C. arts.2045 and 2046. Thus, in interpreting the subject insurance policy, the words of the policy should be given their generally prevailing meaning, and words susceptible of different meanings must be interpreted as having the meaning that best conforms to the object of the contract. See La. C.C. arts.2047 and 2048. Each provision of the policy must be interpreted 14in light of the other provisions so that each is given the meaning suggested by the contract as a whole, and it must be interpreted to cover only those things it appears the parties intended to include. See La. C.C. arts.2050 and 2051.

DISCUSSION

Ms. Ridenour named American Modern as a defendant in the underlying suit based on the allegation that a homeowner’s policy issued by the insurer provided personal liability coverage to Jennifer Harris for the negligence she is alleged to have committed relative to the injuries sustained by Christine on November 7, 2003. Ms. Ri-denour contends that the trial court erred in failing to find that Jennifer Harris was an “insured person” entitled to coverage under the American Modern policy (the policy).

The declarations page of the policy lists James H. Harris as the named insured and 36053 Race Horse Road, Pearl River, Louisiana 70452, as the insured property. The policy further provides personal liability coverage for claims of bodily injury or property damage brought against any “insured person.” Several key terms are identified in the definitions section of the policy to facilitate the interpretation of the policy language and coverage. Some of the more pertinent definitions listed in the definitions section include:

1. “You” and “your” mean the insured named on the Declarations Page and the spouse, if a resident of the same household.
6. “Insured person”, when used in SECTION II [Liability Coverage section including personal liability] of the policy, means
I.Ja) you;
(b) your relatives who are residents of the insured premises which is listed on the Declarations Page;
* * *
16. “Resident” means a person living permanently in your home. A person temporarily living in your home shall not be considered a resident.
17. “Relative” means a person living in your insured premises related to you by blood, marriage or adoption, including a ward or foster child.

The marriage between Jennifer and James Harris was terminated by a judgment of divorce on September 19, 2003. The incident sued upon occurred on November 7, 2003, almost two months following the termination of the Harris marriage. Thus, at the time of the incident, Jennifer Harris was no longer the “spouse” of James Harris and as such, no longer qualified as an “insured person” under the plain language of the policy.

Ms. Ridenour nevertheless contends that Jennifer Harris is an insured person entitled to coverage under the policy, relying on Burglass v. United States Fidelity and Guaranty Company, 427 So.2d 596 (La.App. 5th Cir.1983), to support her claim that Ms. Harris still qualified as an “insured person” under the policy despite her divorce from the named insured. We disagree with the holding in that case and decline to follow it.

Instead, we find the reasoning followed by the court in Robertson v. Aetna Casualty & Surety Insurance Co., 629 So.2d 445, 446 (La.App. 3d Cir.1993), to be applicable. In Robertson, the plaintiff tried to seek coverage for her claims under a homeowner’s policy insuring the home in which the former wife of the named insured lived. The named insured in that case owned the home, having obtained sole ownership of the home in the partition of the couple’s community property, but allowed his former wife and their children to reside in the home | ^following the couple’s divorce and the community property partition. Robertson, 629 So.2d at 445. The insurer in that case was granted summary judgment declaring that the former wife was not an insured under the policy. The court held that the former wife did not qualify as an insured, which was defined in the policy as residents of the named insured’s household who are relatives of the named insured, and affirmed the trial court’s conclusion that because the named insured’s former wife was not related to him by blood or marriage, she was not a relative of the named insured. Robertson, 629 So.2d at 446.

Although Jennifer Harris still held an undivided, one-half ownership interest in the property located on Race Horse Road at the time of the incident, it is important to note that the incident being sued upon did not occur on the premises of the insured property. Moreover, even though Jennifer Harris may have qualified as an insured at the time the policy first became effective, the critical date for determining a person’s status under the policy is at the time of an occurrence for which coverage is sought. Compare Clements v. Folse ex rel. Succession of Clements, 01-1970, p. 8 (La.App. 1st Cir.8/14/02), 830 So.2d 307, 314 n. 6, writ denied, 02-2328 (La.11/15/02), 829 So.2d 437 (wherein the court stated that the use of the term “spouse” in the insurance policy was not ambiguous and merely referred to the person occupying that status at the time of the occurrence for which the policy provided coverage, in that case, the death of the insured) and Tyler v. Aetna Casualty and Surety Company, 291 So.2d 519 (La.App. 2nd Cir.1974) (wherein the court held that although at the time the policy was issued the named insured and his spouse were living together, and thus the spouse was a resident of the named insured’s household, at the time the loss occurred, the spouse had established a separate residence and thus was no longer a resident of the named insured’s household for purposes of coverage).

17Consequently, because Jennifer Harris did not occupy the status of “spouse” at the time the incident occurred for which coverage under the policy is being sought, she is not an “insured person” entitled to coverage and the trial court properly rendered summary judgment in favor of the insurer.

CONCLUSION

We affirm the summary judgment granted in favor of American Modern Home Insurance Company, declaring that Jennifer Harris is not an insured under its policy. All costs of this appeal are assessed to the appellant, Melanie Ridenour.

AFFIRMED.

      . Others named as defendants in the petition are not listed since they are not pertinent to this appeal.

      . Specifically, the policy provides:
      PERSONAL LIABILITY COVERAGE If a claim is made or a suit is brought against any insured person for damages because of bodily injury or property damage to which this coverage applies, we will:
      1. pay up to our liability limit for the damages for which the insured person is legally liable, except for punitive or exemplary damages; ....


source: Caselaw Access Project

author: PARRO, J.

license: Public Domain

text:
    STATE of Louisiana v. Stanley J. BRUMFIELD.
    No. 2005 KA 2500.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 20, 2006.
    Rehearing Denied Dec. 28, 2006.

      Camille A. Morvant, II, District Attorney, Joseph S. Soignet, Assistant District Attorney, Thibodaux, for State of Louisiana.
    Frank Sloan, Louisiana Appellate Project, Mandeville, for Defendanh-Appellant Stanley J. Brumfield.
    Before: PARRO, GUIDRY, and McClendon, jj.
   PARRO, J.

pThe defendant, Stanley J. Brumfield, was charged by bill of information with one count of possession of and/or carrying a weapon by a convicted felon (Count 1), a violation of LSA-R.S. 14:95.1, and one count of aggravated battery (Count 2), a violation of LSA-R.S. 14:34. The defendant, represented by counsel, pled not guilty to both counts. At a hearing on a motion to suppress, the defendant sought to suppress the admission into evidence of the handgun seized by Deputy Treverse Johnson. The motion was denied. The defendant objected to the trial court’s ruling. Following a jury trial, the defendant was found guilty as charged on both counts. He was sentenced to twelve years of imprisonment at hard labor without benefit of probation, parole, or suspension of sentence on Count 1, and ten years of imprisonment at hard labor on Count 2. The sentences were ordered to run concurrently. The defendant now appeals, asserting in his sole assignment of error that the trial court erred in denying his motion to suppress the evidence. We affirm the convictions. We affirm the sentence as to Count 2, and vacate the sentence and remand for resentencing as to Count 1.

FACTS

On February 11, 2005, Daimar Gustave went to April Preston’s house in Thibo-daux to see if she wanted to come back to his cousin’s house to record some rap music. Daimar had dated April in the past. When Daimar knocked on April’s door, the defendant, April’s boyfriend, opened the door and struck Daimar in the face with a handgun. Daimar was cut above his left eye. The defendant then pointed the handgun at Daimar and told him that if he came any closer, he was going to blow his head off. The defendant went back into the house, and Daimar left and called the police.

After the defendant struck Daimar, April and the defendant went across the street to a neighbor’s house. They used the phone and left. While April and the defendant were standing outside, Daimar and his friends came back to the scene. When April and the defendant saw Daimar and heard police sirens, they ran to another neighbor’s house, a trailer home owned by Tammy Carcisse. Apparently, Daimar saw the defendant go into the trailer.

^Deputy Treverse Johnson of the La-fourche Parish Sheriffs Office investigated the incident. Daimar told Deputy Johnson what happened and pointed out the trailer that the defendant had run into. Deputy Johnson approached the trailer and knocked on the door. Roland Carcisse, Jr., Tammy’s fifteen-year-old son who lived there, told Deputy Johnson, after initially denying the defendant was there, that the defendant was inside and pointed out the bedroom he was in. Deputy Johnson entered the trailer and found the defendant and April hiding in the bedroom. He apprehended the defendant and searched him for weapons, but found none. He placed the defendant in the back of his police unit. He then went back into the trailer to search for the handgun that the defendant had used to strike Daimar. Deputy Johnson found a loaded .380 Lor-cin pistol in the cabinet under the bathroom sink. The bathroom was adjacent to the bedroom where the defendant was found. The handgun was introduced into evidence at trial.

ASSIGNMENT OF ERROR

In his sole assignment of error, the defendant argues that the trial court erred in denying his motion to suppress the evidence. Specifically, the defendant contends that the investigating officer did not have consent to enter the premises to search for the defendant, and the officer had neither consent nor a warrant to search for the handgun.

It is well established that the Fourth Amendment protects people, not simply places, against unreasonable searches and seizures. The crucial question in cases such as this is whether or not there is a legitimate expectation of privacy. Both the Fourth Amendment of the United States Constitution and Article I, § 5 of the Louisiana Constitution protect only reasonable expectations of privacy. If it is determined that the accused had no reasonable expectation of privacy in the area invaded, neither a warrant nor an exception to the warrant requirement is needed for the seized evidence to be admissible. The test by which a person’s “expectation of privacy” is measured is twofold: first, the person must exhibit an actual subjective expectation of privacy and, second, the expectation must be one that society is prepared to recognize as reasonable. State v. Paulson, 98-1854 (La.App. 1st Cir.5/18/99), 740 So.2d 698, 700-01.

|4The Carcisse trailer is the one in which the defendant and April were found hiding from the police. April lived across the street and knew Roland lived at that trailer. However, the defendant was not from the area. When April walked into the Carcisse trailer, the defendant simply followed her because he had nowhere else to go. At trial, the defendant testified on direct examination as follows:

Q. Y’all went to the trailer. What did y’all do once you got to the trailer? A. Well, April knocked on the door. I was standing outside. April knocked on the door and she went in the trailer and then I went in right behind her.
Q. OK.
A. Because I wasn’t from around there and I ain’t had nowhere else to go, so I wasn’t going to stand outside.

On cross-examination, the defendant testified as follows:

Q. Where did you go when you left the altercation?
A. Well, we went to the first trailer.
Q. Was that at Pam?
A. Yes, that’s — went by Pam. We went to that trailer there. So, when his friends and all of them came, we were standing across the street, so we ain’t knew that he had called the police, and then the police came and she broke out running, so I ran behind her, and then she went in the trailer. At first I wasn’t going to go in the trailer. She went in the trailer. And then I just went in the trailer behind her because I ain’t had nowhere else to go, you know, and I ain’t going to be stuck out and let nobody jump on me.

It is clear from the testimony of the defendant that he had no connection or association with the Carcisse family or their trailer. He went to the trailer because he was following his girlfriend, who was from the area, and because he, being unfamiliar with the area, had nowhere else to go. Nothing in these facts indicates that the defendant had any expectation of privacy in a place new to him and where people unknown to him lived. Moreover, even if the defendant felt, from his own subjective perspective, that he was entitled to some privacy in the trailer, we find that society would not be prepared to recognize as reasonable an expectation of privacy in an | .¡unfamiliar place used solely for the unlawful purpose of hiding out from the police and discarding a weapon used in a crime.

We conclude the defendant had no reasonable expectation of privacy in the trailer where his handgun was seized. Thus, the protection of the Fourth Amendment does not apply. See Paulson, 740 So.2d at 701. However, the defendant has standing under Article I, § 5 of the Louisiana Constitution to assert Tammy’s loss of her privacy rights, as he has been adversely affected by the search of her home. See State v. Gant, 93-2895 (La.5/20/94), 637 So.2d 396, 397 (per curiam).

It is well settled that a search conducted without a warrant issued upon probable cause is per se unreasonable, subject to a few specifically established and well-delineated exceptions. One of the specifically established exceptions to the requirements of both a warrant and probable cause is a search conducted pursuant to consent. When the state seeks to rely upon consent to justify the lawfulness of a search, it has the burden of proving the consent was given freely and voluntarily. State v. Owen, 453 So.2d 1202, 1205-06 (La.1984). Consent is valid when it is freely and voluntarily given by a person who possesses common authority or other sufficient relationship to the premises sought to be inspected. State v. Aucoin, 613 So.2d 206, 208 (La.App. 1st Cir.1992). The determination of the voluntariness of the consent turns on the overall facts and circumstances of the particular case. The trial judge’s factual determination on this issue is entitled to great weight on appellate review. State v. Franklin, 95-1876 (La.1/14/97), 686 So.2d 38, 41. In determining whether the ruling on the defendant’s motion to suppress was correct, we are not limited to the evidence adduced at the hearing on the motion. We may consider all | fipertinent evidence given at the trial of the case. State v. Chopin, 372 So.2d 1222, 1223 n. 2 (La.1979).

Deputy Johnson testified at trial that, when he knocked on the door of the trailer in which the defendant was suspected to be, Roland answered the door. When Deputy Johnson asked Roland if the defendant and April were in there, Roland first told him that they were not. Deputy Johnson explained to Roland that he could get a search warrant and that, if the defendant was, in fact, found to be in the residence, Roland could be held accountable for aiding and abetting a fugitive. At this point, Roland informed Deputy Johnson that the defendant was there. When Deputy Johnson asked where the defendant was, Roland told him that he was in the bedroom. When Deputy Johnson entered the residence, Roland pointed out to him where the bedroom was.

Deputy Johnson also testified at the motion to suppress. When asked on direct examination if Roland allowed him to enter the premises, Deputy Johnson responded, “Yes.” During the defendant’s cross-examination of Deputy Johnson, the trial court asked several questions, including the following:

The Court:
OK. How did you get into that residence?
[Deputy Johnson]:
With permission from her son.
The Court:
The 15-year-old?
[Deputy Johnson]:
Yes, sir.

Following this exchange, defense counsel resumed cross-examination and asked Deputy Johnson, “Did he give you permission to come in or did you go in once you determined that Mr. Brumfield might be in the residence?” Deputy Johnson replied, “No, sir. He gave us permission.”

17We find that the testimony at both the trial and the motion to suppress established that Roland freely gave Deputy Johnson his consent to search the trailer for the defendant. When Deputy Johnson found the defendant in the bedroom, he seized him and placed him in custody. He patted him down, but found no weapon. He then brought the defendant to his police unit and placed him in the rear of the vehicle. Deputy Johnson immediately returned to the trailer and conducted a warrantless search for the defendant’s handgun. Further, there is nothing in the facts to indicate that Deputy Johnson was given consent by Roland, or anyone in the trailer, to search for the handgun.

A police officer needs both probable cause to search and exigent circumstances to justify a non-consensual warrantless intrusion into private premises. State v. Brisban, 00-3437 (La.2/26/02), 809 So.2d 923, 927. Probable cause for a search exists when facts within the officer’s knowledge and of which he has reasonable and trustworthy information are sufficient to justify a reasonable man in the belief that the place to be searched will contain the object of the search. State v. Ragsdale, 381 So.2d 492, 495 (La.1980). As discussed in footnote three, Deputy Johnson was told by the victim that he was hit by a gun. The handgun was described as small and silver and black. When Deputy Johnson seized and searched the defendant, he found no handgun on his person. According to the testimony of Deputy Johnson at both the trial and the motion to suppress, April told Deputy Johnson that the defendant had a gun when they left her house and crossed the street. After that, however, she did not know ]swhat the defendant did with the gun. Based on these facts, Deputy Johnson clearly had probable cause to suspect that the defendant’s handgun was somewhere in the trailer.

Deputy Johnson testified at the motion to suppress that he knew the family that lived at the trailer. He stated that he knew the owner, Ms. Tammy Carcisse, and he knew that she had small children. He went back into the trailer to search for the handgun because he was concerned that one of the children might find it. He searched the areas that he felt were within the defendant’s access and where he could have hidden the handgun. The issue for us to determine is whether or not Deputy Johnson’s warrantless search for the handgun, under these particular facts, was pursuant to exigent circumstances. We find that it was.

Examples of exigent circumstances have been found to be escape of the defendant, avoidance of a possible violent confrontation that could cause injury to the officers and the public, and the destruction of evidence. State v. Hathaway, 411 So.2d 1074, 1079 (La.1982). This list, of course, is only illustrative and not exclusive. The United States Supreme Court in Illinois v. McArthur, 531 U.S. 326, 331, 121 S.Ct. 946, 950, 148 L.Ed.2d 838 (2001) has defined exigent circumstances as “a plausible claim of specially pressing or urgent law enforcement need.” In State v. Shumaker, 40,275 (La.App. 2nd Cir.10/28/05), 914 So.2d 1156, 1167-68, the second circuit upheld a warrantless search of a trailer based on exigent circumstances. A strong chemical odor of ammonia in the yard led officers to believe methamphetamine was being manufactured in the trailer. The court stated that “[ujnder these circumstances, clear public safety concerns associated with the illegal manufacture of methamphetamine existed for the officers’ entrance into the trailer without a warrant.” Shumaker, 914 So.2d at 1168.

lain the instant matter, Deputy Johnson testified at the motion to suppress that he went back to the trailer to search for the gun because he knew small children resided at the trailer, and he feared that one of them might find the gun. Other jurisdictions have found that the warrantless search for a weapon out of concern for the safety of others was permissible under the exigent circumstances exception to the warrant requirement. In United States v. Antwine, 873 F.2d 1144, 1145-47 (8th Cir. 1989), the defendant pointed a handgun at two FBI agents, who were speaking to him at his front door. The agents backed off, and the defendant shut his door. About twenty minutes later, the defendant came outside and was arrested in his front yard. Agent Moore then entered the house and conducted a protective sweep. He discovered that there was an eleven-year-old boy and small girl in the house. He decided to search the house for the handgun so as not to leave the children alone with the weapon. His sole purpose for searching for and recovering the weapon was the safety of the children. The court found that the warrantless seizure of the handgun, necessitated by the exigency, was not unreasonable.

In Sturdivant v. United States, 551 A.2d 1338 (D.C.1988), cert. denied, 493 U.S. 956, 110 S.Ct. 370, 107 L.Ed.2d 356 (1989), officers arrested the defendant at his house after receiving information that he had shot someone with a sawed-off shotgun. Jones, a co-defendant, who was also at the house, informed the officers that the gun was in the attic crawl space. While the defendant was being taken to police headquarters, officers conducted a war-rantless search for the gun. They found the gun and seized it. Sturdivant, 551 A.2d at 1339-40. In finding that exigent circumstances existed, the court stated:

At the time the police commenced the search, they knew that a sawed-off shotgun had been used in a serious crime and that it had not been retrieved. We have observed that the presence of such weapons creates a special exigency because of their potential threat to human life.... In addition, the police knew that if the gun remained in the house after | inappellant and Jones were removed, the other members of the family who had not been arrested would still have access to it and could use or destroy it.

Sturdivant, 551 A.2d at 1342.

In Cady v. Dombrowski, 413 U.S. 433, 442-47, 93 S.Ct. 2523, 2529-31, 37 L.Ed.2d 706 (1973), the Supreme Court found that the warrantless search and seizure of a weapon by a police officer from the trunk of a vehicle towed to a private garage was not unreasonable. The Court stated, “Here the justification, while different, was as immediate and constitutionally reasonable as those in Harris [v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968) ] and Cooper [v. California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967) ]: concern for the safety of the general public who might be endangered if an intruder removed a revolver from the trunk of the vehicle.” Dombrowski, 413 U.S. at 447, 93 S.Ct. 2523. In Commonwealth v. Stewart, 740 A.2d 712 (Pa.Super.1999), after receiving information about a shooting from a vehicle, police officers arrested the defendant who was a passenger in the suspect vehicle and was identified by the victim as one of the shooters. The defendant and the driver were taken into custody. They were patted down, but no weapons were found on their persons. An officer conducted a warrantless search of the vehicle and found two handguns under the mats. Stewart, 740 A.2d at 714. In finding exigent circumstances, the court stated:

The officers were faced with two equally difficult and dangerous situations: innocent persons finding the gun and getting hurt as they handled it and an officer being injured by the gun as he stepped into the car to turn off the ignition. The officers and the public were in danger if the weapons were not recovered; thus, there was a need for immediate police action.

Stewart, 740 A.2d at 718-19.

We find that in the instant matter, the highly probable threat of the presence of a handgun at the trailer where several children lived created a special exigency for Deputy Johnson. Under these exigent circumstances, it was not unreasonable for 1 ^Deputy Johnson, in protecting the safety and welfare of children, to search for and seize the defendant’s loaded handgun from the trailer immediately following the securing of the defendant in his police unit and the questioning of April about the fight with the victim and about the defendant having a gun on his person. We also note that the scope of Deputy Johnson’s warrantless search did not exceed what was necessitated by the exigency. Deputy Johnson did not look for anything else, and he looked only in the immediate area where the defendant had been initially seized. He simply found the handgun and seized it. See Antwine, 873 F.2d at 1147. Also, the entire incident— from the time the defendant was placed into custody to the time the handgun was discovered — took only approximately twenty minutes. The trial court did not err in denying the motion to suppress.

The assignment of error is without merit.

PATENT ERROR

Whoever is found guilty of violating the provisions of LSA-R.S. 14:95.1 shall be imprisoned at hard labor for not less than ten nor more than fifteen years without the benefit of probation, parole, or suspension of sentence and be fined not less than one thousand dollars nor more than five thousand dollars. LSA-R.S. 14:95.1(B). In the instant matter, the trial court sentenced the defendant to twelve years at hard labor, but failed to impose the mandatory fine upon the defendant pursuant to LSA-R.S. 14:95.1(B).

Because the amount of the fine lies in the trial court’s discretion, the correction of the sentencing error must be made by the trial court, rather than by amendment by this court. See State v. Haynes, 04-1893 (La.12/10/04), 889 So.2d 224 (per curiam). Accordingly, we vacate the sentence imposed on Count 1 and remand for resentencing in accordance with law. See LSA-C.Cr.P. art. 881.4(A); State v. Paoli 01-1733 (La.App.12 1st Cir.4/11/02), 818 So.2d 795, 799-800 (en banc), writ denied, 02-2137 (La.2/21/03), 837 So.2d 628.

DECREE

For the foregoing reasons, the defendant’s convictions are affirmed; the sentence imposed on Count 2 is affirmed; the sentence imposed on Count 1 is vacated; and this matter is remanded to the trial court for resentencing on Count 1 in accordance with law.

CONVICTIONS AFFIRMED. SENTENCE AS TO COUNT 2 AFFIRMED; AS TO COUNT 1, SENTENCE VACATED AND REMANDED FOR RESEN-TENCING.

      . See State v. Henry, 440 So.2d 872, 874 (La. App. 2nd Cir. 1983), where the court found the defendant had no right to an expectation of privacy in his girlfriend's house where he did not reside and only stayed occasionally; see also State v. Fielding, 37,943 (La.App. 2nd Cir.12/10/03), 862 So.2d 420, 430, writ denied, 04-0249 (La. 1/14/05), 889 So.2d 256, where the court found the defendant had no expectation of privacy in an abandoned house owned by someone else and used by the defendant to occasionally sleep in and hide his gun.

      . Roland's status as a minor did not vitiate his consent. See Gregoire v. Henderson, 302 F.Supp. 1402, 1407 (E.D.La.1969), where the court found that a seventeen-year-old boy, who permanently lived in his home, was capable of giving valid consent to a police officer to search the premises. See also State v. Smith, 504 So.2d 1070, 1075 (La.App. 1st Cir.1987), where this court found that an occupant of the residence consented freely and voluntarily to the officers' entry into the residence to search for the defendant, and that the officers were correct and justified in informing him that he could be charged with accessory after the fact for aiding the defendant in eluding detection by officers.

      . When Deputy Johnson found the defendant in the bedroom, he had probable cause to arrest him. A peace officer may arrest a person without a warrant when the "peace officer has reasonable [probable] cause to believe that the person to be arrested has committed an offense, although not in the presence of the officer[.]” LSA-C.Cr.P. art. 213(3). See State v. Billiot, 370 So.2d 539, 543 (La.1979), cert denied, 444 U.S. 935, 100 S.Ct. 284, 62 L.Ed.2d 194 (1979). Probable cause exists when the facts and circumstances within the arresting officer's knowledge and of which he has reasonable and trustworthy information are sufficient to justify a man of average caution in the belief that the person to be arrested has committed or is committing an offense. State v. Leatherwood, 411 So.2d 29, 32 (La.1982). Shortly prior to Deputy Johnson’s entering the trailer, Daimar informed him that "a Stanley” had hit him with a gun and that he was hiding in the residence across the street. Deputy Johnson testified at trial that, while he was getting this information from Daimar, Daimar had a laceration over his left eye and was bleeding. His shirt weis full of blood and his eye was swollen. Daimar's wounds were fresh, and he was treated at the scene in an ambulance by medi-cad personnel. Thus, the condition of the victim of a very recent crime, information provided by the victim as to the defendant's identity and whereabouts, and the discovery of the defendant hiding out in the trailer identified by the victim, were facts and circumstances clearly sufficient to justify Deputy Johnson's belief that the defendant had committed a crime.

      .April testified at the trial that the defendant punched Daimar in the face, but not with a gun. She testified that the defendant did not have a gun during the incident. She also testified that the defendant did not have a gun when they left her house and went across the street.

      . Allen Jackson testified at the trial that Tammy was his girlfriend and that he lived with her. He testified that the ages of the children who lived with him and Tammy were 8, 14, 15, and 18.

      . Other than Roland, it is not clear from the record who was at home when Deputy Johnson searched for the handgun.

      . The Antwine court was guided by New York v. Quarles, 467 U.S. 649, 104 S.Ct. 2626, 81 L.Ed.2d 550 (1984), in which the Supreme Court created a "public safety" exception to the rule that the product of a custodial interrogation not preceded by Miranda warnings is inadmissible. Antwine, 873 F.2d at 1146. The Antwine court stated, "The clear implication of Quarles is that a warrantless seizure of a weapon may be considered 'reasonable' within the meaning of the Fourth Amendment when justified by an officer's legitimate concern for someone’s safety.” Antwine, 873 F.2d at 1147.

      . The government did not argue the search was pursuant to consent. It was not clear whether Jones consented to the search or had authority to do so. Sturdivant, 551 A.2d at 1340.

      . We are mindful that Dombrowski and Stewart are automobile cases and that, pursuant to the “automobile exception,” citizens are afforded less Fourth Amendment protection in their vehicles than in their homes. Nevertheless, because these cases employ the same rationale as the premises cases, i.e., the presence of weapons may create a special "public safely” exigency because of their potential threat to human life, we include them in our analysis.

      . We find no significance in Deputy Johnson’s testimony at trial, wherein he mischar-acterizes his search for the defendant’s handgun as a "protective sweep.” A protective sweep, aimed at protecting the arresting officers, is not a full search of the premises, but extends only to a cursory inspection of those spaces where a person may be found. Maryland v. Buie, 494 U.S. 325, 335, 110 S.Ct. 1093, 1099, 108 L.Ed.2d 276 (1990). In other words, the protective sweep is to find persons, not items. Deputy Johnson’s mere mislabeling of his actions does not change the reasonableness or constitutionality of those actions.


author: PETTIGREW, J.

text:
    Alvin FLORIDA, Jr., Curator for Alvin Florida, Sr. and Elmira Florida v. Deborah STOKES and Ultra Health Services, Inc.
    No. 2005 CA 2004.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 20, 2006.

      Timothy E. Pujol, Donnie L. Floyd, Prairieville, for Plaintiffs-Appellants Alvin Florida, Jr., Curator for Alvin Florida, and Elmira Florida.

      April L. Watson, Baton Rouge, for Defendant-Appellee Ultra Health Services, Inc.
    William H. Parker, III, Lafayette, for Defendanb-Appellee Deborah Stokes.
    Before: PETTIGREW, DOWNING, and HUGHES, JJ.
   PETTIGREW, J.

|2In this action, petitioner filed suit on behalf of a family member seeking recovery for fraudulent acts allegedly committed by an employee of a home health service. Petitioner now appeals from a trial court judgment that dismissed his petition based upon maintenance of a peremptory exception raising the objection of no right of action. We hereby reverse and remand.

FACTS

Petitioner Alvin Florida, Jr. (“Alvin Jr.”), “a resident of the full age of majority of the State of Louisiana, in his capacity as the curator for Alvin Florida, Sr.,” joined with fellow petitioner Elmira Florida (“Ms. Florida”) and filed a Petition for Damages on May 28, 2004. According to the allegations of the petition, from September 2001 to August 2003, defendant Deborah Stokes, in the course and scope of her employment with defendant Ultra Health Services, Inc. (“Ultra”), performed home health services for Alvin Florida, Sr., initially at his home, and thereafter at the home of Ms. Florida. Ms. Florida is alleged to be the sister of Alvin Florida, Sr.

It is further alleged that during this time, Ms. Stokes took advantage of Alvin Florida, Sr.’s dementia, which resulted from “an Alzheimer’s type syndrome,” and engaged in repeated acts of fraud and deception so as to misappropriate money and personal items from Alvin Florida, Sr. In addition, it is alleged that Ms. Stokes wrote checks to herself on Ms. Florida’s account. Upon proof of these alleged acts, Alvin Florida, Sr., appearing herein through his alleged curator, Alvin Jr., together with Ms. Florida seek damages plus legal interest and attorney fees from Ms. Stokes and Ultra.

Ultra and Ms. Stokes responded by filing individual answers to the petition, and Ms. Stokes set forth a reconventional demand for damages resulting from injury to her reputation. On March 2, 2005, Ultra filed a peremptory exception raising the objection of no right of action together with a memorandum in support. Ultra asserted that Alvin Jr. 13had no justiciable interest in this matter as he was neither a curator nor a provisional curator for Alvin Florida, Sr. at the time this matter was filed.

In response, Alvin Jr. attempted to cure the alleged defect in the petition through the filing of an Amended Petition for Damages on April 8, 2005. Therein Alvin Jr. alleged to be “a resident of the full age of majority of the State of California, appearing pursuant to a Power of Attorney executed in his favor by ELMIRA FLORIDA on March 3, 2005 and a Power of Attorney executed in his favor by ALVIN FLORIDA, SR., on March 3, 2005.” Pursuant to the allegations contained in the amended petition, Alvin Jr. altered his capacity from curator for Alvin Florida, Sr. to that of agent for both Alvin Florida, Sr. and fellow petitioner Ms. Florida. In his amended petition, Alvin Jr. reasserted the demands set forth in the original petition that he filed with Ms. Florida. On April 12, 2006, Alvin Jr. was granted leave of court to amend the petition.

On April 20, 2005, Ultra filed a motion and order to vacate the trial court’s April 12, 2005 order that allowed Alvin Jr. to amend the petition. Ultra contended that the objections raised in its pending exception raising the objection of no right of action could not be cured through an amendment of the petition. Ms. Stokes, on May 11, 2005, filed a similar peremptory exception raising the objection of no right of action together with a memorandum in support, expressly adopting the memorandum previously filed by Ultra as support for her exception.

Thereafter, on May 31, 2005, the trial court heard arguments on Ultra’s motion to vacate its order allowing amendment of the petition, together with the peremptory exceptions filed by Ultra and Ms. Stokes that raised objections of no right of action. At the conclusion of the hearing, the trial court sustained the objection as to no right of action with respect to the claims asserted on behalf of Alvin Florida, Sr. With respect to the claims asserted on behalf of Ms. Florida, the trial court overruled the objection of no |4right of action based on its finding that Ms. Florida had filed the lawsuit in her individual capacity. The trial court further granted the motion to vacate its order, thereby dismissing all claims brought by Alvin Jr. on behalf of Alvin Florida, Sr. A judgment to this effect was signed by the court on June 13, 2005. From this adverse judgment, Alvin Jr., in his capacity as agent for Alvin Florida, Sr., has appealed.

ISSUE PRESENTED ON APPEAL

In connection with his appeal in this matter, Alvin Jr., in his capacity as agent for Alvin Florida, Sr., presents the following issue for consideration by this court:

Did the honorable trial court err in vacating the order to allow Alvin Jr. to amend the original Petition for Damages to reflect his status as agent for Alvin Sr. and granting defendants’ No Right of Action exception?

STANDARD OF REVIEW

Generally, an action can be brought only by a person having a real and actual interest that he asserts. La.Code Civ. P. art. 681. The peremptory exception pleading the objection of no right of action assumes a viable cause of action and challenges whether the plaintiff has a legal interest in judicially enforcing that cause or remedy. Centofanti v. Diamond Offshore Drilling, 01-1691, p. 4 (La.App. 1 Cir. 5/22/02), 819 So.2d 1101, 1103. Whether a person possesses a right of action depends upon whether the particular plaintiff belongs to the class in whose favor the law extends a remedy. Northshore Capital Enterprises v. St. Tammany Hospital District #2, 01-1606, p. 4 (La. App. 1 Cir. 6/21/02), 822 So.2d 109, 112, writ denied, 02-2023 (La.11/1/02), 828 So.2d 584. Whether a plaintiff has a right of action is a question of law. Therefore, it is reviewed de novo on appeal. Jackson v. St. Helena Parish Sheriff’s Department, 01-2792, p. 2 (La.App. 1 Cir. 1/8/02), 835 So.2d 842, 844. To prevail, the defendant must show that the plaintiff does not possess an interest in the subject matter of the suit. Id.

ANALYSIS

As part of the original petition that he filed together with Ms. Florida, Alvin Jr. alleged that he was “a resident of the full age of majority of the State of Louisiana” and that he was appearing “in his capacity as the curator for ALVIN FLORIDA, SR.” As part of | Sits memorandum offered in support of its peremptory exception, Ultra attached copies of an interdiction proceeding filed in East Baton Rouge Parish in 2002, wherein Alvin Jr. and a Patricia Florida sought appointment as curator and undercurator [sic], respectively, for Alvin Florida, Sr. In the interim, Alvin Jr. sought and was appointed as provisional curator of the estate of Alvin Florida, Sr., conditioned upon the posting of a $150,000.00 bond. There is no record of a bond having been posted, or letters of curatorship having been issued. Accordingly, the interdiction proceeding has never been finalized.

It is evidently undisputed that when Ultra filed its peremptory exception on March 2, 2005, Alvin Jr. did not have an interest in the subject matter of Alvin Florida, Sr.’s alleged cause of action. In an attempt to cure the defect in the petition that he filed with Ms. Florida, Alvin Jr. filed an amended petition wherein he attempted to proceed as “agent” for both Alvin Florida, Sr. and Ms. Florida pursuant to separate powers of attorney allegedly executed by Alvin Florida, Sr. and Ms. Florida on March 3, 2005.

Following a hearing on the peremptory exceptions filed by Ultra and Ms. Stokes together with Ultra’s motion to vacate the trial court’s order, the trial court sustained the objections of no right of action with respect to the claims asserted on behalf of Alvin Florida, Sr. and granted Ultra’s motion to vacate the order permitting amendment of the petition. Accordingly, the trial court dismissed the claims brought on behalf of Alvin Florida, Sr. In its written reasons for judgment, the trial court opined:

... [CJlearly, Mr. Florida didn’t have a right to file this suit on behalf of Alvin Florida, Sr., when he initially filed it. And I don’t think that an amendment can cure that fault. A supplemental petition would be adding a new plaintiff, and it would be Alvin Florida, Sr., pursuant to the power of attorney, as opposed to Alvin Florida, Jr., who was the original plaintiff.
So I don’t think the amendment cured the defect, and I don’t think it can cure the defect. So I’m going to sustain the peremptory exception of no right of action with regard to Alvin Florida, Jr., suing on behalf of Alvin Florida, Sr., and strike the court’s approval of the filing of the amended petition that was filed in April of this year.
As pointed out, Elmira Florida sued in her own name and this in no way affects her rights in this suit.
I’ll sustain the exception.

Iiilt is clear from the foregoing oral reasons that the trial court erred in its assertion that Alvin Jr. was an original plaintiff in this matter. Based upon the allegations contained in the petition, Alvin Jr. was appearing not in his individual capacity, but rather in his capacity as the curator of Alvin Florida, Sr. Had the interdiction of Alvin Florida, Sr. been finalized, the curator of Alvin Florida, Sr. would have been the proper party to sue to enforce a right belonging to Alvin Florida, Sr. La.Code Civ. P. art. 684.

Thereafter, Alvin Jr. filed an amended petition wherein he altered his capacity from curator for Alvin Florida, Sr. to that of agent for Alvin Florida, Sr. and fellow petitioner Ms. Florida pursuant to individual powers of attorney. The originals of said powers of attorney were executed before a Louisiana notary on March 3, 2005, and introduced into the record in this matter. The individual powers of attorney were executed by Ms. Florida and Alvin Florida, Sr., and purport to convey to Alvin Jr. the general power to act in and for each principal in their respective,

name, place and stead, to represent [said principal] in any and all matter including but not limited to pleadings, discovery, settlement negotiations execution of settlement documents and checks, and/or drafts, etc. in that civil lawsuit entitled “Alvin Florida, Jr., Curator for Alvin Florida, Sr. and Elmira Florida versus Deborah Stokes and Ultra Health Services, Inc.,[”] Number 520,688, Section 24 of the 19th Judicial District Court for the Parish of East Baton Rouge, State of Louisiana.

The aforementioned powers of attorney further stated that “[a]ny and all prior acts [executed by said agent and attorney-in-fact] are hereby approved and ratified as if signed after the execution of this procuration.”

We are mindful that in connection with the 2002 interdiction proceeding, Alvin Jr. alleged that “[b]ecause of his excessive age and mental and/or physical illnesses relating to his diagnosed dementia of the Alzheimer’s type, Alvin Florida, Sr. [was] incapable of taking care of his person and administering his estate.” Nevertheless, said interdiction was never finalized. While these prior allegations call into question the capacity of Alvin Florida, Sr. to execute a power of attorney three years later in 2005, the validity of the power of attorney executed by Alvin Florida, Sr. is not an issue presently before this court.

The presumption is that all persons have the capacity to contract. Matter of Adoption of Smith, 578 So.2d 988, 992 (La.App. 4 Cir.), writ denied, 581 So.2d 687 (La.1991). The exception being that unemancipated minors, interdicts and persons deprived of reason at the time of contracting, lack legal capacity to contract. La. Civ.Code art. 1918. Lack of capacity must be shown by clear and convincing evidence. Higgins v. Spencer, 531 So.2d 768, 770 (La.App. 1 Cir.), writ denied, 532 So.2d 106 (La.1988).

Louisiana has long recognized that a principal may ratify the acts of an agent. In the law of agency, ratification is the adoption by one person of an act done on his behalf by another without authority. ODECO Oil & Gas Company v. Nunez, 532 So.2d 453, 464 (La.App. 1 Cir.1988), writ denied, 535 So.2d 745 (La.1989); Bamber Contractors, Inc. v. Morrison Engineering & Contracting Company, Inc., 385 So.2d 327, 331 (La.App. 1 Cir.1980); see also La. Civ.Code arts. 3008, 3010. In order for ratification to occur, the person to be bound must, with full knowledge of all material facts, express an interest to adopt the unauthorized acts. ODECO Oil, 532 So.2d at 464.

The burden of proving ratification is upon the party asserting it, and to find ratification of an unauthorized act, the facts must indicate a clear and absolute intent to ratify the act, and no intent will be inferred when the alleged ratification can be explained otherwise. Nationwide Finance Co. of Gretna, Inc. v. Pitre, 243 So.2d 326, 328 (La.App. 4 Cir.1971). See Bamber Contractors, 385 So.2d at 331. An unauthorized contract may only be ratified by a party possessing the power to contract in the first instance. Chandler & Chandler v. City of Shreveport, 162 So. 437, 440 (La.App. 2 Cir.1935).

Louisiana Civil Code article 3024 provides that:

In addition to the causes of termination of contracts under the Titles governing “Obligations in General” and “Conventional Obligations or Contracts,” both the mandate and the authority of the mandatory terminate upon the:
(1) Death of the principal or of the mandatory.
(2) Interdiction of the mandatory.
(3) Qualification of the curator after the interdiction of the principal.

Upon application of these precepts to the case at bar, there is no question that although a proceeding to interdict Alvin Florida, Sr. had previously been filed, said proceeding had never been consummated or finalized, and Alvin Florida, Sr. was never | ^formally interdicted. Absent clear and convincing evidence to the contrary, we must presume that Alvin Florida, Sr. possessed the requisite capacity to contract at the time he executed the power of attorney on March 3, 2005. As Alvin Jr. is the party asserting the validity of the power of attorney he holds, it is incumbent upon him to establish that Alvin Florida, Sr. clearly intended, through execution of the power of attorney, to specifically ratify the previous acts performed for his benefit by Alvin Jr.

If Alvin Florida, Sr. did in fact ratify Alvin Jr.’s filing of the above suit on his behalf, then it would be a valid ratification and the peremptory exception raising the objection of no right of action should be reversed and the suit maintained. There is, however, insufficient evidence in this record for us to determine whether Alvin Florida, Sr. possessed the capacity, as required in Chandler, to ratify the act in the first place.

For these reasons, we must conclude that the trial court erred in vacating the order to allow Alvin Jr. to amend the Original Petition for Damages to reflect his status as agent for Alvin Florida, Sr. and maintaining the peremptory exceptions that raised the objection of no right of action. We further remand this proceeding to the trial court for the purpose of a hearing as to whether Alvin Florida, Sr. possessed, on the date he executed the power of attorney, the requisite capacity to ratify the acts previously performed on his behalf by Alvin Jr.

CONCLUSION

For the above and foregoing reasons, the judgment of the trial court that vacated its earlier order allowing amendment of the petition and maintaining the peremptory exceptions that raised the objection of no right of action is hereby reversed. This matter is hereby remanded to the trial court for further proceedings to determine the capacity of Alvin Florida, Sr. to ratify the earlier acts of Alvin Florida, Jr. All costs associated with this appeal shall be assessed against defendants, Deborah Stokes and Ultra Health Services, Inc.

REVERSED AND REMANDED.

      . Although petitioner, Alvin Florida, Jr., is presumed to be the son of Alvin Florida, Sr., no evidence corroborating their precise relationship is found within the record.

      . As part of its supporting memorandum Ultra introduced a copy of an interdiction proceeding that Alvin Jr. filed in the 19th Judicial District Court in 2002 for the purpose of interdicting Alvin Florida, Sr. Alvin Jr. alleged therein that due to "his excessive age and mental and/or physical illnesses relating to his diagnosed dementia of the Alzheimer’s type, Alvin Florida, Sr. [was] incapable of taking care of his person and administering his estate." Said interdiction proceeding was never finalized.


author: HUGHES, J. DOWNING, J.,

text:
    Louise M. CARPENTER v. STATE of Louisiana, DEPARTMENT OF HEALTH AND HOSPITALS.
    No. 2005 CA 1904.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 20, 2006.
    Rehearing Denied Oct. 25, 2006.

      Peter J. Losavio, Baton Rouge, Counsel for PlaintiffAppellee Louise M. Carpenter.
    Neal R. Elliot, Jr., Baton Rouge, Counsel for Defendant/Appellant State of Louisiana, Department of Health and Hospitals.
    Before: PETTIGREW, DOWNING, and HUGHES, JJ.
   HUGHES, J.

I ¡.This is an appeal by defendant, the Department of Health and Hospitals for the State of Louisiana, from a judgment by the 19th Judicial District Court restoring Medicaid benefits to plaintiff, Louise M. Carpenter. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

On February 5, 2004, Louise M. Carpenter, then ninety-two years of age, moved from the home of her daughter Sheryl Bergeron, where Ms. Carpenter had lived since 1989, into a full care nursing home. On March 22, 2004, Ms. Bergeron filed a Medicaid application on her mother’s behalf for long-term care benefits through the Department of Health and Hospitals for the State of Louisiana (DHH). The DHH’s routine “resource eligibility screening” of Ms. Carpenter’s assets detected that $29,339.68, the balance of a Legg Mason brokerage account in Ms. Carpenter’s name, had been transferred to Ms. Berger-on at a point close in time to Ms. Carpenter’s relocation to the nursing facility and Ms. Bergeron’s application for benefits.

The DHH viewed this transaction as a “transfer of resources for less than fair market value.” According to the DHH’s Medicaid Eligibility Manual, it is presumed that such a transfer has been effected in order for an applicant to enhance his or her eligibility for Medicaid’s long-term care benefits. On April 27, 2004, after written notice, the DHH denied Ms. Carpenter’s benefits from February 5, 2004 through November 1, 2004. This amount of time represents a pro rata calculation applying an estimated |3average monthly private pay cost for long-term care of $3,000.00 per month to the $29, 339.68 figure.

Upon Ms. Bergeron’s appeal, an administrative hearing was held on July 21, 2004. At the hearing, Ms. Bergeron opposed DHH’s position that the transaction represented a transfer of assets for less than fair market value. She sought to show that, pursuant to a written care agreement that she and her mother signed in 1989 when her mother moved in with her, the $29,339.68 represented compensation for Ms. Bergeron’s services in caring for her mother for the ensuing fifteen years until her mother required placement in the nursing home. Ms. Bergeron’s evidence included the written care agreement, which set out terms by which Ms. Carpenter would pay Ms. Bergeron $1,000.Ó0 per month, due on demand by Ms. Bergeron, in compensation for a wide array of care and services during Ms. Carpenter’s residence with her daughter. The agreement is dated March 1, 1989 and signed by Ms. Carpenter and Ms. Bergeron as well as two witnesses. The witnesses to the agreement appeared and testified under oath at the hearing.

After the hearing, the administrative law judge took the matter under advisement and on August 19, 2004 she released her summary of the evidence, findings of fact, and “conclusions and recommendations.” The administrative law judge concluded that DHH had properly denied Ms. 'Carpenter’s benefits for the time period in question. Ms. Bergeron filed a petition for judicial review with the 19th Judicial District Court, alleging (1) that the transfer of resources by Ms. Carpenter to her daughter Ms. Bergeron was for a purpose unrelated to Medicaid eligibility, and (2) that the transfer was for fair market value.

The matter was briefed and oral arguments heard on June 24, 2005. From the bench, the judge reversed, finding the administrative law judge’s |4decision arbitrary and an unwarranted exercise of discretion. On July 26, 2005 judgment was signed.

DHH appeals and asserts the following assignments of error: that the trial court (1)misapplied the standard of review, (2) erred in “failing to properly take into consideration the support of the administrative record,” and (3) erred in reversing the administrative law judge’s decision on the grounds that the decision was arbitrary and an unwarranted exercise of discretion.

Standard of Review

The Louisiana Administrative Procedure Act provides for judicial review over administrative adjudications. Louisiana Revised Statutes 49:964(G) states that:

The court may reverse or modify the 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 statutory authority of the agency;
(3) Made upon unlawful procedure;
(4) Affected by other error of law;
(5) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion; or
(6) Not supported and sustainable by a preponderance of evidence as determined by the reviewing court. In the application of this rule, the court shall make its own determination and conclusions of fact by a preponderance of evidence based upon its own evaluation of the record reviewed in its entirety upon judicial review. In the application of the rule, where the agency has the opportunity to judge the credibility of witnesses by first-hand observation of demeanor on the witness | Kstand and the reviewing court does not, due regard shall be given to the agency’s determination of credibility issues.

In this case, DHH appears to be claiming that the trial court erred in applying the “arbitrariness” standard in LSA-R.S. 49:964(G)(5) and not the “preponderance of the evidence” standard of LSA-R.S. 49:964(G)(6), which requires a reviewing court to give “due regard” to the administrative agency or tribunal’s credibility determinations based on “first-hand observation.”

Louisiana Revised Statutes 49:964(G)(5) and (6) address different considerations. Louisiana Revised Statutes 49:964(G)(5) “is used in reviewing conclusions and exercises of agency discretion,” thus, this provision applies to questions of law and mixed questions of fact and law. Robert Force & Lawrence Griffith, The Louisiana Administrative Procedure Act, 42 La. L.Rev. 1227, 1285-86 (1982). Distinctly, LSA-R.S. 49:964(G)(6) “is used in reviewing the facts as found by the agency,”’ which, ae-cording to the statute provision, includes credibility determinations. Id.

In this case, the trial court announced its decision from the bench: “I am going to rule that the decision of the board was arbitrary, clearly an unwarranted exercise of its discretion, and order that the documents be sufficient to prove that this was not an illegal transfer.” (Record 169). The subsequent judgment reads: “After hearing and reviewing all evidence in this matter.. .the law and evidence are in favor of the Plaintiff in her demand against Louisiana Department of Health and Hospitals.” (Record 165). The court’s phrasing and language suggest that the court considered both the “arbitrariness” and “preponderance of the evidence” standards. We find that the trial court considered both LSA-R.S. 49:964(G)(5) and LSA-R.S. | fi49:964(G)(6) and thus did not misapply the standard of review. This assignment of error is without merit.

DISCUSSION

It is well established that in the context of judicial review over administrative action or adjudication, a court of appeal owes no deference to either the factual findings or legal conclusions of the district court, just as the Louisiana Supreme Court owes no deference to the factual findings or legal conclusions of the state’s courts of appeal. Maraist v. Alton Ochsner Med. Found., 02-2677, p. 4, (La. App. 1 Cir. 5/26/04), 879 So.2d 815.

This dispute may be analyzed under either LSA-R.S. 49:964(G)(5) or (6). As noted above, LSA-R.S. 49:964(0(5) entails judicial review of an administrative agency or tribunal’s legal conclusions and conclusions of mixed questions of fact and law, while LSA-R.S. 49:964(0(6) entails judicial review over an administrative agency or tribunal’s factual findings. When, as in this matter, the issue on review is an administrative tribunal’s evaluation of the evidence and application of law to facts, these concerns l7become somewhat intertwined, but remain distinct in that credibility determinations of evidence are specifically considered as factual questions under LSA-R.S. 49:964(G)(6), but the application of these and other facts to the law at issue is a legal conclusion subject to analysis under LSA-R.S. 49:964(0(5).

Law and Analysis

Support in the Administrative Record for the Administrative Law Judge’s Factual and Credibility Determinations

As noted, LSA-R.S. 49:964(0(6) applies to an administrative tribunal’s factual and credibility determinations. The administrative law judge concluded in this matter that the written care agreement document was of questionable authenticity and that Ms. Bergeron and her witnesses were not convincing. At the administrative hearing, Bruce Beever, the Medicaid analyst assigned to Ms. Carpenter’s file, and Patricia Stewart, a Medicaid Area Manager, testified that although the care agreement was dated March 1,1989, it was not notarized or dated on the signature page and thus they did not consider it to be a “valid document.” [Record 21, 32] Mr. Beever and Ms. Stewart also doubted the validity of Ms. Carpenter’s signature on the agreement. They based their suspicions on a comparison between Ms. Carpenter’s signatures on the care agreement and on a notarized Power of Attorney she executed in 2000 [Record 32].

Ms. Bergeron testified in response that she and her mother signed the agreement in March 1989, right before Ms. Carpenter moved in with her. [Record 36]. The witnesses who signed the agreement, Mr. Daniel Andre and his wife, Ms. Jody Andre, also testified to this effect. [Record 49, 55]. When questioned by the administrative law judge as to the provenance of the care agreement, Ms. Bergeron testified that in 1989, when her mother clearly | scould not live alone any longer and would be moving in with her, she retained her current counsel, Peter Losavio, on a reference from her employer. Ms. Bergeron stated that she has worked for her current employer, a dentist, since 1987. Her employer and the accountant for the business knew Mr. Losavio personally and recommended him to Ms. Bergeron at that time. [Record 59-60].

In her opinion, the administrative law judge expressed doubts similar to those of the Medicaid officers as to the authenticity of the care agreement document and the credibility of the live witnesses [Record 101-02], The opinion notes that the care agreement document, although dated March 1, 1989, was not notarized, did not state the date upon which it was actually executed, had no dates on its signature/witness page, and “did not appear to be 15 years old.” The administrative law judge also doubted the similarity between the notarized signature of Ms. Carpenter on the Power of Attorney notarized in 2000 and her signature on the 1989 care agreement.

While the statute requires that “due regard” be given to credibility determinations based on an administrative agency or tribunal’s first-hand observation, the general principles of evidence law extend to administrative proceedings. See LSA-R.S. 49:956. Thus, a fact-finder’s “disbelief of witnesses... cannot be used as a means to supplant affirmative proof where none exists and thus afford the basis for a judgment.” Stroik v. Ponseti, 97-2897, p. 11 (La.9/9/97), 699 So.2d 1072, 1080 (citing New Orleans & Ne. R.R. Co. v. Redmann, 28 So.2d 303, 309 (La.App. 1946)). It is also well settled that “speculation, conjecture, near possibility, and even unsupported probabilities, are not sufficient to support a judgment.” Pierce v. Phoenix Ins. Co., 213 So.2d 73, 76 (La. App. 1 Cir.1968).

[ 3Based on a review of the entire record and giving “due regard” to the administrative law judge’s opportunity for first-hand observations at the hearing, we find that the administrative law judge’s conclusions as to the authenticity of the care agreement document and the sufficiency of the witnesses’ testimony are not supported and sustained by a preponderance of the evidence as required by LSA-R.S. 49:964(G)(6).

DHH has not successfully supported its suspicions regarding the authenticity of the care agreement document. While the document is clearly produced by word processing, such technology was in wide use in 1989. Despite the suspicions of the Medicaid officers and the administrative law judge as to the document’s dates and the signatures, DHH has failed to present any contradictory evidence sufficient to effectively discount the facial authenticity of the care agreement document.

The administrative law judge expressed doubts in her opinion as to the accuracy and veracity of Mr. Andre’s testimony because he remembered the date of the signing of the care agreement but not the exact date when Ms. Carpenter actually moved in with Ms. Bergeron. Mr. Andre’s testimony is reasonably credible: one might remember an event where one was personally involved and present far more vividly than an occurrence that did not so directly engage one’s involvement. DHH also argues in its brief that because Mr. and Mrs. Andre are friends of Ms. Berger-on’s, their testimony is “self-serving,” as is Ms. Bergeron’s. [DHH brief p. 12]. While Ms. Bergeron’s testimony might perhaps be thought of as “self-serving,” DHH presented no evidence to impeach Mr. or Mrs. Andre’s testimony. Family, friends, and neighbors are logical choices to serve as witnesses in such situations; familiarity does not constitute perjury.

| mThe administrative law judge also doubted Ms. Bergeron’s credibility as to the reasons why she deferred accepting payment from her mother under the terms of the care agreement until after Ms. Carpenter entered the nursing facility and the benefits application had been filed. Ms. Bergeron testified that it was her mother’s idea to have the agreement so as to ensure that the money in the Legg Mason account would be used to compensate Ms. Bergeron for “what I was going to do.” [Record 44], Ms. Carpenter also sought to ensure that any remaining funds would go to Ms. Bergeron and not to her sister, who had received assistance earlier in life from her parents but had not supported Ms. Carpenter in her later years. [Record 45]. Mr. and Mrs. Andre’s testimony supported these statements by Ms. Bergeron. [Record 50,55]. Ms. Bergeron also testified that she did not accept or demand any payments from her mother while her mother lived with her because “I didn’t need the money. It was not an emergency in my life that I had to ask her to pay me so everything was fine.” [Record 47].

Ms. Bergeron further testified: “I expected to eventually be paid with the money that she had left to go against the contract.” [record 46]. Once her mother entered nursing care, however, and it was not clear “what was going to happen to my mom,” Ms. Bergeron, who already had power of attorney over her mother’s finances, effected the transfer and closed out the Legg Mason account in order to fulfill her mother’s wishes that Ms. Ber-geron receive the money and not her sister. [record 47] Neither DHH’s presentation at the hearing nor the administrative law judge’s “conclusions |1tand recommendations” overcome a reasonable notion that this might be how a typical family in similar circumstances might confront such a situation.

The administrative law judge also found inconsistencies with Ms. Bergeron’s testimony that she thought of the money in the Legg Mason account as both compensation for her years of caring for her mother and also “an inheritance” upon her mother’s death. [Record 102], While this understanding might appear inconsistent to the legally trained mind, a lay person might not draw such a fine distinction. This element of Ms. Bergeron’s testimony does not detract from her apparent credibility. Finally, Ms. Bergeron’s explanation as to how she came to retain Mr. Losavio in 1989 through her employer’s personal reference is reasonable and credible. [Record 59].

Based on a thorough review of the entire record in this matter and giving due regard as required by the statute, we do not find the administrative law judge’s credibility determinations to be “supported and sustainable by a preponderance of the evidence.” Under LSA-C.E. art. 304, presumptions will stand unless “controverted or overcome by appropriate evidence.” Thus, contracts made by competent persons are presumed valid and witnesses are presumed to speak the truth. We find no evidence in the administrative record to overcome these presumptions.

The Arbitrary, Capricious, Abuse of Discretion, or Clearly Unwarranted Exercise of Discretion Standard

Louisiana Revised Statutes 49:964(G)(5) allows a court to reverse or modify an administrative determination if the determination is “arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.” An arbitrary decision shows “disregard of evidence or of the proper weight thereof’ while a capricious decision “has no Insubstantial evidence to support it or the conclusion is contrary to substantiated competent evidence.” Sterling v. Dep’t of Pub. Safety & Corr., La. State Penitentiary, 97-1959, 1960, 1961, p. 13, (La.App. 1 Cir. 9/25/98), 723 So.2d 448, 455. Where the law allows for the agency or tribunal to exercise discretion, the statute’s plain language concludes that such exercise must be neither abusive nor clearly unwarranted. LSA-R.S. 49:964(G)(5).

In determining this matter, the administrative law judge heard testimony and took evidence at the hearing and consulted the DHH’s Medicaid Eligibility Manual sections 1-1670 et seq. on “Transfer of Resources for Less than Fair Market Value.” The pertinent sections of the Manual read as follows. Section 1-1671, titled “General Information,” excludes a transfer from assessment of penalties if it represents the applicant “using a resource to repay a valid debt or make a purchase.” [Record 75]. A “valid debt” is defined as one based on a “legally binding agreement made in good faith.” [Record 76]. The agreement must include “the borrower’s acknowledgment of an obligation to pay; a time table and plan for repayment; [and] the borrower’s express intent to repay.” [Record 76]. Such transactions, according to the Manual, would not be considered transfers of resources for less than fair market value.

Section 1-674, titled “Transfers on or after August 11, 1993,” provides that if a transaction is deemed a “transfer of assets for less than fair market value,” it will be:

presumed to be for the purpose of qualifying for [benefits], unless the individual can prove convincingly that the transfer was for some other purpose... In all cases, the individual shall be offered the opportunity to rebut the presumption .... Evidence must be provided which | ^establishes that the transfer was solely for a reason other than to qualify for Medicaid. [Record 77],

The Manual defines “fair market value” in the same section and includes the following “note” to the definition:

Relatives and family members legitimately can be paid for care they provide. However, it is presumed, that services provided for free at the time were intended to be provided without compensation. Therefore, a transfer to a relative for care provided for free in the past is a transfer of assets for less than fair market value. Tangible evidence in the form of a copy of the payback agreement that had been agreed to in writing at the time services were provided and ensuing payment records are required to rebut this presumption. [Record 81]

The next section in the Manual, 1-1675, titled “Uncompensated Value,” includes the following under a subsection titled “Determining Compensation”:

Compensation includes items or services received by the individual prior to the transfer only if they were provided as a result of a binding contract between the parties involved. The contract must have been established at or before the transfer. [Record 88]

In analyzing the transfer in this matter, the administrative law judge considered these directives from the Manual along with the testimony under oath of Ms. Ber-geron and Mr. and Mrs. Andre and the care agreement document provided by Ms. Bergeron. The administrative law judge concluded that Ms. Bergeron had not satisfactorily rebutted the Manual’s stated presumptions that a transfer for less than fair market value amounts to an effort to qualify for otherwise unmerited Medicaid benefits and that care by a family member that is not concurrently compensated is understood to be gratuitous. Specifically, the administrative law judge found that Ms. Bergeron presented “no convincing evidence that the Agreement was agreed in writing at the time services were rendered” and no “ensuing payment 114records” or other timekeeping or billing documentation pursuant to the Manual’s requirements. [Record 102].

The administrative law judge noted the following factors that had contributed to her rejection of the care agreement document: 1) the document’s lack of notarization or indication of date on the signature page, 2) that the document “did not appear to be 15 years old,” 3) that the testimony of Mr. and Mrs. Andre was “unconvincing,” 4) that although Ms. Bergeron testified that Mr. Losavio had always been her attorney, the Power of Attorney from 2000 was notarized by an attorney not associated with Mr. Losavio’s firm, and 5) that the notarized signature of Ms. Carpenter on the Power of Attorney from 2000 did not appear to be the same as the unnotarized signature from the care agreement alleged to be from 1989. [Record 101-102],

This court agrees with the district court judge that the administrative law judge’s conclusions based on application of the law (represented by the Manual guidelines) to the facts in this matter were arbitrary and a clearly unwarranted exercise of discretion. In effect, both DHH and the administrative law judge have attempted to supplement the Manual with requirements not included in its text. The Manual language in question asks for “tangible evidence in the form of a copy of the payback arrangement that had been agreed to in writing at the time services were required.” It does not require that the document display any specific proof of date such as a notarization. It does not require the sort of “paper and ink” analysis noted in the transcript of Ms. Berger-on’s administrative hearing.

Likewise, the administrative law judge’s conclusions as to the credibility of Mr. and Mrs. Andre and the similarity of the two signatures by Ms. Carpenter are arbitrary and an unwarranted exercise of discretion. | , fiNothing in the DHH’s presentation at the administrative hearing effectively attacked or refuted the credibility of the live witnesses, both of whom had no personal interest in the matter and voluntarily appeared to testify under oath. As for the disputed signatures, copies of both are in the record and even a cursory examination, which is the prerogative of this court in its scope of review, suggests that they are indeed similar enough in their particulars to be those of the same person, despite the intervening eleven years during which Ms. Carpenter aged from seventy-seven to eighty-eight years of age.

The administrative law judge also based her conclusions on Ms. Bergeron’s lack of “ensuing payment records” such as billing or other timekeeping documentation that might refute the presumption that Ms. Bergeron intended the care she provided as a family member to be without expectation of compensation. Again, this conclusion is arbitrary and a clearly unwarranted exercise of discretion given the facts in the record. The care agreement sets out the amount of $1,000.00 per month in compensation owed by Ms. Carpenter to Ms. Bergeron, but it also indicates clearly that payment is due “upon demand by Bergeron” and not necessarily “at the time services are performed.”

Nothing in the Manual dictates that payment must be made concurrent with the services received; it is only relevant that payment records be “ensuing” so as to coordinate with the terms of an agreement that can effectively rebut the presumption that family care is gratuitous. Upon her mother’s entry into the nursing home and the attendant uncertainty of the future, Ms. Bergeron had sufficient grounds to “demand” the payment due her. We also note that the transaction slip from Legg Mason is a valid “payment record” to satisfy the Manual’s requirements.

|1fiIn conclusion, the care Ms. Ber-geron provided for her mother, Ms. Carpenter, between 1989 and 2004 may have taken place without concurrent payment, but it did not take place without Ms. Ber-geron’s understanding and expectation of future compensation and Ms. Carpenter’s uncontroverted intention that this be so. The written agreement between the two women, which has not been discredited, clearly expresses the “meeting of the minds” that signifies a binding contract. As such, it clearly satisfies the Manual’s promulgated requirements to rebut the presumption of gratuitous family care under 1-1674 and also to exclude the transfer from penalty as a proper use of a resource to pay a valid debt under 1-1671.

Consequently, we find that the trial court committed no error in reversing the administrative law judge’s findings and conclusions in this matter as arbitrary and a clearly unwarranted exercise of discretion.

CONCLUSION

For the reasons assigned, we affirm the judgment of the trial court in this matter. All costs of this appeal, in the amount of $723.96, are to be borne by defendant, the Department of Health and Hospitals.

AFFIRMED.

DOWNING, J., concurs and assigns reasons.

DOWNING, J.,

concurs and assigns reasons.

11 While I agree with the result reached in the majority opinion, I must point out an erroneous statement of law contained therein. The opinion states that we owe no deference to the trial court’s findings of fact. This is incorrect.

In Multi-Care, Inc. v. State, Dept, of Health & Hospitals, 00-2001, p. 4 (La.App. 1 Cir. 11/9/01), 804 So.2d 673, 676, we discussed the allocation of fact finding in Louisiana’s three-tiered judicial system as explained in Virgil v. American Guarantee and Liability Insurance Company, 507 So.2d 825, 826 (La.1987), as follows:

In Virgil, the Louisiana Supreme Court observed that the manifest error standard of review applies to the trial court’s factual findings even when the evidence before it consists solely of written reports, records and depositions. Id. The supreme court discussed the allocation of fact finding in Louisiana’s three-tiered court system as follows: [fn. omitted]
| gLouisiana’s three-tiered court system allocates the fact finding function to the trial courts. Because of that allocation of function (as well as the trial court’s normal procedure of evaluating live witnesses), great deference is accorded to the trial court’s factual findings, both express and implicit, and reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed on appellate review of the trial court’s judgment.

The Louisiana legislature enacted Acts 1997, No. 128, § 1, effective June 12, 1997, to amend paragraph G(6) of La. R.S. 49:964 to make the trial court a fact finder that weighs the evidence and makes its own findings of fact by preponderance of the evidence. Multi-Care, 00-2001 at p. 4, 804 So.2d at 675.

Multi-Care appears to be the only reported case analyzing and addressing the effect of the 1997 amendment to La. R.S. 49:964 G(6). None of the cases cited by the majority in their footnote address the effect of the 1997 amendment. Rather, they repeat the tired pre-amendment mantra that judicial review is appellate review and that the court of appeal owes no deference to the district court’s factual findings.

Generally, a court of appeal engages in fact finding only when, in its exercise of appellate jurisdiction, it concludes that fact-finding in the court below has been interdicted by legal error. See Evans v. Lungrin, 97-0541, pp. 6-7 (La.2/6/98), 708 So.2d 731, 735.

| sUnder the current enactment of La. R.S. 49:964 G(6), however, the district court is not so limited. Rather, it is mandated to make its own determination of whether the agency decision is supported and sustainable by a preponderance of evidence. “In the application of this rule, the court shall make its own determination and conclusions of fact by a preponderance of evidence based upon its own evaluation of the record reviewed in its entirety.” (Emphasis added.) La. R.S. 49:964 G(6). Therefore, in this regard, the district court exercises original jurisdiction and acts as a fact finder rather than an appellate court.

Accordingly, we “defer to the trial court’s factual determinations and use a manifest error standard of review where the legislature has empowered it with the function of fact finding,” while giving due deference to the agency’s credibility determinations. La. R.S. 49:964 G(6). See St. Martinville, L.L.C. v. Louisiana Tax Com’n, 05-0457, p. 4 (La.App. 1 Cir. 6/10/05), 917 So.2d 38, 41.

Here, the trial court’s findings of fact based on the preponderance of the evidence were not manifestly erroneous. I also agree with the majority that DHH’s actions in contravention of its own rules were an abuse of discretion. Accordingly, I concur in the result reached.

      . The DHH’s routine resource eligibility screening examines asset transfers that occur thirty-six months prior to the “baseline date” when an individual is either institutionalized or applies for benefits; any asset transfers that take place after the baseline date are subject to scrutiny as well. (Medicaid Eligibility Manual § I-1674/Record 77).

      . We recognize this court’s holding in Multi-Care, Inc. v. State of Louisiana, Department of Health and Hospitals, 00-2001 (La.App. 1 Cir. 11/9/01); 804 So.2d 673. While that decision seems to indicate a different standard of review, we find the analysis in Maraist to be the correct approach in light of the qualitative difference between judicial review of administrative adjudications and standard judicial district court proceedings.
      We recognize that the 1997 amendment to Louisiana Revised Statutes 49:964(G)(6) empowered district courts with the function of fact finding in the administrative context. St. Martinville, L.L.C. v. La. Tax Comm’n, 917 So.2d 38, 41 ([La.App. 1 Cir.]2005). This change has not, however, affected the standard of review available to courts of appeal when they sit in review over district court decisions in the administrative context, a standard of review which, as noted in Ma-raist, is significantly broader than that mandated in the non-administrative context.

        We note also that the Second, Fourth, and Fifth Circuit Courts of Appeal have reached conclusions similar to Maraist, as well as the following decisions in our own court: Cochrane v. La. Tax Comm’n, 04-1671, p. 3 (La. App. 1 Cir. 5/18/05); 905 So.2d 353, 356; Hakim-El-Mumit v. Stalder, 03-2549, p. 3 (La.App. 1 Cir. 10/29/04); 897 So.2d 112, 113; EOP New Orleans, L.L.C. v. La. Tax Comm’n, 01-2966, p. 5 (La.App. 1 Cir. 8/14/02); 831 So.2d 1005, 1008, writ denied, 02-2395 (La. 11/27/02); 831 So.2d 286; Johnson v. New Orleans Charities Bldg. Corp., 00-2772, p. 4 (La.App. 1 Cir. 2/15/02); 812 So.2d 741, 743, rehearing denied; Cleco Evangeline, L.L.C. v. La. Tax Comm’n, 01-0561, p. 3 (La. App. 1 Cir. 6/22/01); 808 So.2d 740, 743, affd, 01-2162 (La.4/3/02); 813 So.2d 351; Mouton v. State of La., Dep’t of Soc. Servs., 00-0397, p. 6 (La.App. 1 Cir. 2/16/01); 808 So.2d 485, 489; Blair v. Stalder, 99-1860, p. 9 (La.App. 1 Cir. 1/31/01); 798 So.2d 132, 139; Comm-Care Corp. v. La. Tax Comm’n, 99-0709, p. 5 (La.App. 1 Cir. 6/23/00); 762 So.2d 770, 773, writ denied, 00-2271 (La. 10/27/00); 772 So.2d 656; Bless Home Health Agency v. La. Dep’t of Health and Hospitals, 99-0936, p. 4 (La.App. 1 Cir. 5/22/00); 770 So.2d 780, 783; Mayo v. Mun. Police Bd. of Review, 98-1864, p. 6 (La.App. 1 Cir. 11/5/99); 745 So.2d 188, 191; Giles v. Cain, 98-0212, p. 7 (La. App. 1 Cir. 4/19/99); 734 So.2d 109, 114; vacated on other grounds, 1999-2328 (La.6/2/00), 762 So.2d 1116.

      . At oral argument, Ms. Bergeron's counsel argued that the account represented funds from the sale of Ms. Carpenter's home. The sale netted roughly $100,000.00, which was used for necessary expenses during the course of Ms. Carpenter's residence with her daughter. At the time of the transfer at issue, the balance was roughly $29,000.00, according to the Legg Masson account statement introduced into evidence at the administrative hearing. The total amount due to Ms. Ber-geron under the terms of the agreement would have been approximately $180,000.00 by the time Ms. Carpenter moved into the nursing home in early 2004.