author: STEWART, J.

text:
    Daniel P. AYDELOTT, Plaintiff-Appellant v. Lisa Burch AYDELOTT, Defendant-Appellee.
    No. 42,161-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 9, 2007.

      Loomis & Dement, by Albert E. Loomis, III, Monroe, for Appellant.
    Jill Binford Goudeau, Monroe, for Ap-pellee.
    Before BROWN, STEWART and PEATROSS, JJ.
   STEWART, J.

|, At issue in this appeal by Daniel Ayde-lott is the trial court’s judgment ordering his ex-wife, Lisa Aydelott, to pay child support in. the amount of $266 per month for their three daughters. Because the trial court failed to follow the mandates of the Child Support Guidelines in setting the amount of support, we reverse the judgment and render in favor of appellant.

FACTS

Daniel and Lisa were married on October 24, 1992. Three daughters were born during the marriage. A judgment of divorce was signed on June 6, 2003. Thereafter, the parties shared equal custody of their daughters under a week-to-week arrangement. By stipulation of the parties and approval of the court, Daniel initially paid Lisa child support in the amount of $811. This amount was reduced to $736 by judgment rendered November 5, 2003.

On May 3, 2004, Daniel filed a rule for change of custody and modification of child support. He alleged that a material change in circumstances since the last judgment warranted a change in custody. He also alleged that the amount of support he was ordered to pay was not in compliance with the support guidelines.

In a written ruling and order signed on December 23, 2005, the trial court determined that the week-to-week arrangement produced “instability” in the lives of the three children. Attached to the ruling was a check sheet used by the court to weigh the factors of La. C.C. art. 134. The court | gdiscontinued the week-to-week arrangement, named Daniel the domiciliary parent with primary custody of the three children, granted Lisa reasonable visitation, and ordered her to pay child support in the amount of $266 per month retroactive to the date of filing. A separate judgment in accordance with the ruling was signed January 18, 2006.

Lisa requested findings of fact and reasons for the court’s ruling and judgment. She also filed a motion for a new trial. In a ruling on March 27, 2006, the trial court explained its weighing of the La. C.C. art. 134 factors which led to the custody ruling. With regard to the award of child support, the court explained that it found “the amount of $266 per month to be proper....” The trial court denied the motion for a new trial as it pertained to the award of custody, but granted it insofar as to issue a joint custody implementation plan. The trial court also granted a new trial to address the amount of child support owed by Lisa and the date to which the award should be retroactive. A judgment in accordance with the ruling was signed May 2, 2006.

After some additional testimony, the trial court ordered the parties to submit briefs on the support issue. Daniel complied with the order, but Lisa, who was changing counsel at the time, failed to do so. On September 15, 2006, the trial court signed a judgment that again set child support owed by Lisa at $266 per month but made it retroactive to January 1, 2006. The trial court ordered that the judgment could be “traversed” by any “new counsel” within fifteen days of the judgment.

^Neither Daniel nor Lisa’s new counsel filed to traverse the judgment. However, Daniel filed this appeal to assert error in the trial court’s award of only $266 per month in child support. He argues that the trial court did not follow the child support guidelines and failed to give any reasons for the deviation.

DISCUSSION

Review of Trial Court’s Judgment

Guidelines for the determination of child support are set forth in La. R.S. 9:315 et seq. The guidelines are to be used in any proceeding to establish or modify child support. La. R.S. 9:315.1(A). The guidelines are mandatory and provide limits and structure to the trial court’s discretion in setting the amount of support. James v. James, 34,567 (La.App.2d Cir.4/6/01), 785 So.2d 193. The trial court’s child support judgment will not be disturbed absent a clear abuse of discretion. Curtis v. Curtis, 34,317 (La.App.2d Cir.11/1/00), 773 So.2d 185.

There is a rebuttable presumption that the amount of child support obtained by use of the guidelines is proper and in the child’s best interest. La. R.S. 9:315.1(A); Guillot v. Munn, 99-2132 (La.3/24/00), 756 So.2d 290. However, the trial court may deviate from the guidelines if it finds that application of the guidelines would not be in the child’s best interest or would be inequitable to the parties. Liles v. Liles, 37,251 (La.App.2d Cir.6/25/03), 850 So.2d 879; State ex rel. Metcalf v. Samuels, 34,402 (La.App.2d Cir.2/20/00), 775 So.2d 1162. La. R.S. 9:315.1(B) mandates that the trial court give specific oral or written reasons for a deviation and include ^specific findings as to the amount of support that would have been required under a mechanical application of the guidelines and as to the particular facts and circumstances that warranted the deviation. Liles, supra. This information is required to be made part of the record of the proceedings. La. R.S. 9:315.1(B).

Deviations from the guidelines shall not be disturbed absent a finding of manifest error. La. R.S. 9:315.17. However, the record must include oral or written reasons that support the deviation and that are based on the record. Mantou v. Montou, 96-1463 (La.App. 3d Cir.4/2/97), 692 So.2d 705. If the trial court fails to follow the mandatory procedure for deviation set forth in La. R.S. 9:315.1, it is legal error and precludes review of the deviation under the manifest error standard.

Here, the trial court’s judgment ordering Lisa to pay only $266 per month in child support for her three daughters is a clear deviation from the guidelines considering the parties’ combined income, which will be addressed herein. In making this child support determination, the trial court explained only that it found the amount of $266 per month to be “proper.” The trial court failed to follow the mandates of La. R.S. 9:315.1 in determining the amount of support. Specifically, the trial court failed to calculate the child support due under the guidelines, to give specific reasons for the deviation, and to state the particular facts and circumstances that warranted the deviation. The trial court’s failure to follow the applicable law in determining child support in this matter is legal error.

| BWhere the record contains adequate information, this court may apply the guidelines and render a child support judgment rather than remand to the trial court for further proceedings. James, supra; State v. Flintroy, 599 So.2d 381 (La. App. 2d Cir.1992). Daniel asserts that the record contains adequate information to allow us to render a judgment; Lisa asserts that the record is lacking in information, particularly as to additional income allegedly made by Daniel. We note that the issue of child support has been in litigation since Daniel filed a rule for change of custody and modification of support on May 3, 2004. Our review of the record of these proceedings convinces us that any deficiencies in the record are attributable to both parties. Although the record is not perfect, it contains enough information to allow us to render a child support judgment that fairly reflects the parties’ combined income and comports with the guidelines. To remand this already prolonged matter would surely not be in the best interest of the three children who are the subject of these proceedings.

Calculation of Support

Calculation of the child support obligation requires proof of the parties’ adjusted gross incomes. La. R.S. 9:315.2(C). Each party determines the percentage of his or her proportionate share of the combined amount, and then the basic child support obligation is determined by reference to the schedule set forth in La. R.S. 9:315.19 based on the combined adjusted gross income and the number of children. La. R.S. 9:315.2(0 and (D). Each party’s basic, child support obligation is then determined according to the percentage of his or her share of the combined | (¡adjusted gross income. Upon establishing the basic obligation, the net child care costs, health insurance premiums, extraordinary medical expenses, and other extraordinary expenses on behalf of the child are added to the basic obligation to determine the total child support obligation. State ex rel. Metcalf v. Samuels, supra.

The record includes evidence from which we may determine the parties’ adjusted gross income. As ordered by the trial court prior to its ruling on the motion for a new trial, Daniel submitted a memorandum with supporting documentation showing the most recent earnings of both parties as of August 2006. The record also includes testimony about the parties’ incomes.

Lisa’s pay stub for the period ending August 5, 2006, from her employment with Glenwood Regional Medical Center shows that she is paid at a rate of $24.08 per hour of regular day shift employment. The pay stub is for a two-week period. Lisa testified on April 10, 2006, that she works about forty hours per week. She also testified that her income varies due to additional pay for call backs after regular hours but that these hours were being reduced by management to cut costs. However, the August 5, 2006 pay stub includes some call pay and shift work which totaled $99.48 for the pay period. The pay stub shows that Lisa was on paid time off for almost half of the pay period. Therefore, we find it likely that Lisa would have had additional call pay and shift work income had she worked during the full pay period. We recognize that this additional pay will vary, but we find that a determination of Lisa’s gross income should include an ^additional amount for the shift work and call pay she receives. Considering she made an additional $99.48 working a little inore than half the pay period, we believe that an additional $125 per pay period is a fair amount to add to her base gross pay. For purposes of determining the basic child support obligation, we will calculate Lisa’s adjusted monthly gross income based on a rate of $24.08 per hour for a regular forty-hour work week for the year. This gives us a basic gross income of $50,086.40 for the year. Adding the call back pay of $3,250 ($125 x 26 pay periods) to the $50,086.40, we get a total yearly gross income of $53,336.40. Finally, her monthly adjusted gross income equals $4444.70 ($53,336.40 -t- 12).

Included in the record is Daniel’s 2005 income tax return, which shows his adjusted gross income for that year as $57,236. The most recent income information for Daniel is for the period of July 23, 2006 through August 5, 2006, from his employment with the Northeast Louisiana Cancer Institute. From this information, we are able to determine that Daniel is paid every two weeks at a rate of $30.79 per hour for a forty-hour work week. This establishes a yearly gross income of $64,043.20, and a monthly adjusted gross pay of $5336.90 ($64,043.20 -t- 12) from his employment as a radiation therapist.

The record shows that Daniel also has additional income sources, which include rental income and farm income. The term “gross income” is defined under La. R.S. 9:316(C)(3)(c) as:

Gross receipts minus ordinary and necessary expenses required to produce income, for purposes of income from self-employment, rent, royalties, proprietorship of a business, or joint ownership or a partnership or closely held corporation. |s“Ordinary and necessary expenses” shall not include amounts allowable by the Internal Revenue Service for the accelerated component of depreciation expenses or investment tax credits or any other business expenses determined by the court to be inappropriate for determining gross income for purposes of calculating child support.

Daniel’s 2005 tax return includes attachments that show additional income from farming and rentals. Daniel’s gross rental income was $4,650 and his gross farm income was $4,052. The total of Daniel’s additional gross income is $8,702. Although Daniel deducted various expenses from these for tax purposes, we do not find that he proved those deductions to be the type of ordinary and necessary expenses required to produce income that may be deducted in determining gross income for calculating child support. The record shows that Daniel has assets from which he derives additional income, and this income must be included in the child support calculation. Therefore, we will add $725.17 ($8,702 4- 12) to Daniel’s monthly adjusted gross pay of $5336.90 to establish his monthly gross income for child support calculation purposes as $6,062.07.

Taken together, the parties’ monthly adjusted gross incomes yields a combined monthly adjusted gross income of $10,506.77 ($4444.70 ± $6,062.07). Lisa’s proportionate share is forty-two percent (42%), and Daniel’s proportionate share is fifty-eight percent (58%). By reference to the schedule for support set forth in La. R.S. 9:315.19, the basic child support obligation for the three children is $1,972.00.

IsNet child care costs shall also be added to the basic child support obligation. La. R.S. 9:315.3. Daniel provided evidence that he enrolled the three girls in a YMCA after-school program. The child support worksheet submitted by Daniel calculates the net child care costs as $102. We find nothing in the record to contradict this figure.

La. R.S. 9:315.4 provides that the cost of health insurance premiums incurred on behalf of the children are also to be added to the basic child support obligation. Daniel provides the health insurance for the three girls. The record shows the premium amount attributable to coverage for the girls to be $121.26 per month.

Adding the net child care cost of $102 and the children’s health insurance premium of $121.26 to the basic child support obligation of $1,972, yields a total child support obligation of $2,195.26. Lisa’s forty-two percent share of the total obligation is $922.01 Daniel’s fifty-eight percent share is $1273.25.

Lisa argues in her brief that any calculation of child support should include a credit to her for the amount of time the children will be in her care, which she estimates to be forty percent. La. R.S. 9:315.8(E)(1) allows for an adjustment to the amount of support to be paid based on the period of time the child spends with the nondomieiliary parent. The court may order a credit when the person ordered to pay child support has physical custody of the child for more than seventy-three days. La. R.S. 9:315.8(E)(2). To determine the amount of the credit, the court is directed to consider the following factors set forth at La. R.S. 9:315.8(E)(3):

|in(a) The amount of time the child spends with the person to whom the credit would be applied. The court shall include in such consideration the continuing expenses of the domiciliary party-
lb) The increase in financial burden placed the person to whom the credit would be applied and the decrease in financial burden on the person receiving the support.
(c) The best interests of the child and what is equitable between the parties.

The record shows that Lisa will have physical custody of the children for a sufficient amount of time to justify a credit against her support obligation. In fact, she will have custody of the three girls during the weekdays of the summer months and will bear the majority of the expenses for this time. For instance, she will have to obtain child care while she works. Conversely, Daniel’s expenses in this regard will be lessened during the summer. The parties’ relative financial burdens are certain to be impacted by the custody arrangement. Moreover, a credit would be in the best interests of the children by insuring the parents have adequate financial resources to provide for their care, and it will achieve equity between the parties considering the amount of time each has primary care of the children. With these considerations in mind, we find that Lisa should be credited for two months of child support in consideration of the time the children will be with her during the summer months. Two months of her total child support obligation equals $1844.02 ($922.01 x 2). Deducting this amount from her yearly obligation of $11,064.12 ($922.01 x 12) yields $9,220.10. Spread out over the year, Lisa’s monthly child |nsupport obligation, with the credit included, is set at $768.34. This is the monthly amount payable by her to Daniel.

Except for good cause shown, a judgment modifying or revoking a final child support judgment shall be retroactive to the date of judicial demand. La. R.S. 9:315.21(C). If the court finds good cause for not making the award retroactive to the date of judicial demand, the court may fix the date on which the award shall commence, but in no case shall that date be prior to the date of judicial demand. La. R.S. 9:315.21(E). See also Curtis v. Curtis, supra. The date of judicial demand was May 3, 2004, when Daniel filed a rule for change of custody and modification of child support. At that time and until the trial court’s ruling on December 23, 2005, the parties shared equal custody of the three children. Daniel’s reasons for seeking modification of the support included the potential modification of custody and the allegation that the prior support judgment was the result of error and misapplication of the child support guidelines to the shared custody arrangement. However, review of the prior judgment ordering Daniel to pay child support of $736 per month shows that it was entered pursuant to the parties’ stipulation. Considering that the parties stipulated to the prior judgment and that they shared custody of their daughters until the start of 2006, we find that the child support judgment entered by this opinion will not be retroactive to the date of judicial demand. Rather, support payable by Lisa in the amount of $768.34 per month is retroactive to January 1, 2006.

I ^CONCLUSION

For the reasons explained, we reverse the trial court’s judgment ordering Lisa Aydelott to pay child support of $266 per month for her three daughters. In accordance with the child support guidelines arid evidence of record, Lisa Ayedelott is hereby ordered to pay Daniel Ayedelott child support in the amount of $768.34 per month retroactive to January 1, 2006. Costs are assessed equally between the parties.

REVERSED AND RENDERED.

      . We strongly urge the trial court to discontinue use of its check sheet for weighing the illustrative and non-exclusive list of factors set forth in La. Civ. C. art. 134. The child custody determination is not to be based on a mechanical evaluation of the factors listed in Article 134; rather, these factors and others found relevant are to be considered in light of the evidence presented to determine the best interests of the child. Stephenson v. Stephen

        son, 37,323 (La.App.2d Cir.5/14/03), 847 So.2d 175.

      . Lisa also alleged that Daniel had additional income from bush hogging and referred to a tape purporting to show income from this activity for the years 2000, 2001, and 2002. At a hearing on November 10, 2005, Daniel testified that he did veiy little bush hogging in the past two years, and the record does not have any evidence of recent income from bush hogging.


source: Caselaw Access Project

author: SAUNDERS, Judge.

license: Public Domain

text:
    Mahmoud M. GHANNAM, et al. v. CITY OF ALEXANDRIA.
    No. CA 07-23.
    Court of Appeal of Louisiana, Third Circuit.
    May 9, 2007.

      Randal Bryan Tannehill, Tannehill & Sylvester, L.L.C., Pineville, LA, for Plaintiff/Appellee, Mahmoud M. Ghannam.
    Brandon Ashley Sues, Gold, Weems, Bruser, Sues <& Rundell, Alexandria, LA, for Defendant/Appellant, City of Alexandria.
    Court composed of JOHN D. SAUNDERS, JIMMIE C. PETERS, and GLENN B. GREMILLION, Judges.
   SAUNDERS, Judge.

| ¶ Defendant appeals the grant of a permanent injunction in favor of Plaintiff, an alcohol beverage licensee, and three of his convenience stores, which were cited and penalized for the illegal sale of liquor to minors. The permanent injunction, which was granted by the trial court, enjoined the Alcohol Beverage Control Commission from imposing part of the penalty incurred, a thirteen-day suspension of Plaintiffs liquor license. We reverse.

FACTS AND PROCEDURAL HISTORY

Defendant, City of Alexandria, appeals the trial court’s grant of a permanent injunction that enjoined the Alcohol Beverage Control Commission’s (Commission) penalty imposed upon an alcoholic beverage licensee, Mr. Mahmoud M. Ghannam, the owner of several convenience stores in which alcohol was illegally sold to minors in violation of the laws of the state. Due to these violations, three of Mr. Ghannam’s convenience stores, namely A & M of Cen-ia, A & M Mini Mart, Inc., and A & M High Tech, Inc., received citations from the Commission.

On March 28, 2005, a hearing regarding the issuance of the citations was held before the Commission. After the Commission heard and considered the evidence presented, it imposed a $500.00 fine upon both A & M High Tech, Inc. and A & M Mini Mart, Inc., as well as a $1,000.00 fine upon A & M of Cenia, Inc. The penalty imposed on A & M of Cenia was greater, as it had previously been cited for the same violation. The Commission further imposed a suspension of Mr. Ghannam’s City of Alexandria liquor license for a total of thirteen days. Mr. Ghannam was notified of the penalties via certified mail on May 11, 2005.

On May 19, 2005, Mr. Ghannam filed a petition seeking a preliminary injunction to restrain enforcement of the administrative rulings of the Commission |gand a reduction in penalties on behalf of A & M of Cenia, Inc., A & M Mini Mart, Inc., and A & M High Tech, Inc. The preliminary injunction was granted on June 20, 2005, enjoining the suspension of the liquor license until trial.

The matter came to trial on October 3, 2006. The trial court granted a permanent injunction enjoining the Commission’s penalty, reasoning that the imposition of the suspension of Plaintiffs liquor license was excessive under the circumstances and that the fining of his convenience stores was a “sufficient deterrence.”

Defendant, in turn, filed a motion for devolutive appeal on November 3, 2006, requesting that the court reverse the trial court ruling and reinstate the previous penalty, thereby denying the injunction.

ASSIGNMENTS OF ERROR:

1) The trial court committed legal error in granting a permanent injunction when the plaintiff offered no evidence to meet his burden of proof.
2) The trial court committed legal error in finding that the suspension of the liquor license was excessive when the Alexandria Code clearly allows such a penalty within the discretion of the commission.

STANDARD OF REVIEW

A trial court’s factual determinations are subject to the manifest error standard of review and may not be overturned unless they are found to be “manifestly erroneous” or “clearly wrong.” Rosell v. ESCO, 549 So.2d 840 (La.1989). “Nevertheless, when the court of appeal finds that a reversible error of law or manifest error of material fact was made in the trial court, it is required, whenever possible, to redetermine the facts de novo from the entire record and render a judgment on the merits.” Ferrell v. Fireman’s Fund Ins. Co., et al., 94-1252, p. 4 (La.2/20/95), 650 So.2d 742, 745.

laLAW AND ANALYSIS

Timeliness of Appeal

In his reply brief, Plaintiff contends that Defendant did not file its motion for devolutive appeal within the time delays set forth in La.R.S. 26:106(B), which states:

Within ten calendar days of the signing of the judgment by the district court in any such appeal case, the commissioner or the applicant for a permit or permi-tee, as the case may be, may devolutively appeal the judgment to the appellate court of proper jurisdiction. These appeals shall be perfected in the manner provided for in civil cases and shall be devolutive only. If the district court determines that the decisions of the commissioner or of the local authorities in withholding, suspending, or revoking the permit was in error, the decisions of the commissioner or local authorities shall not be voided if the commissioner or local authorities take an appeal to the court of appeals in the time provided for suspensive appeals.

Plaintiff asserts that since the district court signed the judgment on October 26, 2006, and Deféndant filed its devolutive appeal on November 3, 2006, eighteen days after the signing of the judgment, the appeal was untimely. We find, however, that Defendant’s appeal was timely under 26:106(B), as the trial court found that the Commission’s suspension of Plaintiffs liquor license was in error, and Defendant, a local authority, took an appeal to the court of appeal within the time provided for suspensive appeals. Under La.Code Civ.P. art. 2123, a party has thirty days from either the expiration of the delay for applying for a new trial or judgment notwithstanding the verdict or the date of mailing of notice of the court’s refusal to grant a new trial or judgment notwithstanding the verdict to file an appeal. In the instant case, Defendant filed its appeal eighteen days after the signing of the judgment, which is clearly within the time delays provided for in La.Code Civ.P. art. 2123. Accordingly, we find that Defendant’s appeal was timely filed.

Assignment of Error No. 1:

|4In its first assignment of error, Defendant argues that Plaintiff did not meet his burden of proving that the penalties imposed upon him by the Commission were excessive and therefore, the trial court committed legal error in granting Plaintiffs motion for a permanent injunction. Defendant contends that Plaintiff “did not present a single piece of evidence to meet his burden of proof.” Defendant asserts that at trial, Appellee refuted the suspension of his license by simply stating that he had terminated the employee who had violated the law, that he had trained his other employees not to sell alcohol to minors, and that he had paid the fines imposed by the Commission as penalties for the violations. Plaintiff replies to this argument in his brief, stating, “the commission likewise, presented no evidence at trial to substantiate its claims” and further reiterated the fact that remedial efforts had been made.

The manifest error standard applies to the appellate review of the issuance of a permanent injunction. Mary Moe, LLC v. La. Bd. of Ethics, 03-2220 (La.4/14/04), 875 So.2d 22; Metro Ambulance Serv., Inc. v. Med Life Emergency Med. Servs., Inc., 39,440 (La.App. 2 Cir. 3/17/05), 900 So.2d 184. Therefore, the factual determination of the trial court may not be set aside by a reviewing court absent a finding that the determination was manifestly erroneous or clearly wrong. Stobart v. State Through Dept. of Transp. & Dev., 617 So.2d 880 (La.1993). A permanent injunction is issued only after a full trial on the merits in which the burden of proof is a preponderance of the evidence. Mary Moe, LLC, 875 So.2d 22. “The primary purpose of injunctive relief is to prevent the occurrence of future acts that may result in irreparable injury, loss or damage to the applicant. La. C.C.P. art. 3601.” Metro. Ambulance Serv. Inc., 900 So.2d at 188.

In the instant case, Plaintiff filed a petition for injunctive relief, enjoining the Defendant from imposing the suspension of his liquor license. As the movant ^requesting injunctive relief, Plaintiff has the burden of proving, by a preponderance of the evidence, that he is entitled to the injunction which he seeks. Based on our review of the record, we do not find that Plaintiff carried his burden of proving by a preponderance of the evidence that he was entitled to the issuance of a permanent injunction, enjoining the Commission’s penalty. Plaintiff asserted at trial that he believed the penalty imposed by the Commission was excessive. However, he offered no evidence to the trial court indicating that he, or his businesses, would sustain irreparable injury, loss, or damage if the motion for the injunction was not granted by the trial court. Defendant was not required to present any evidence at the hearing as to why the permanent injunction should not be granted, as the sole burden of proof lay with the Plaintiff. Based on the record, we find that Plaintiff failed to carry his burden of proving that he was entitled to the issuance of a permanent injunction enjoining the imposition of Defendant’s penalty. Accordingly, we find that the trial court erred in granting said injunction.

Assignment of Error No. 2:

Defendant argues in its second assignment of error that the trial court erred in finding that the Commission’s suspension of Plaintiffs liquor license was excessive, as the Code of Ordinances for the City of Alexandria clearly allows such penalty, within the discretion of the Commission. Defendant points to the Alexandria Code, Sec. 4-62, which specifically provides penalties for alcoholic beverage licensees who sell alcohol to minors. The section, which is entitled, “Sales to Minor, Mandatory Suspension,” states:

|fi(a) The commission may impose penalties, including fines or suspensions of dealers whose employees sell alcoholic beverages to minors. Said penalty shall be within the following guidelines:
(1) 1st offense — Fine not to exceed five hundred dollars ($500.00) and/or a three-day suspension.
(2) 2nd offense — Fine not to exceed five hundred dollars ($500.00) and/or a ten-day suspension.
(3) 3rd offense — A mandatory suspension of thirty (30) days.
(4) 4th offense — A mandatory suspension of six (6) months. Second subsequent offenses shall be penalties for violations within a second year period.
(b) Notwithstanding any other provision to the contrary, in addition to any other penalty imposed by law, any dealer whose employees are convicted of selling alcoholic beverages to minors three (3) times in one (1) year shall be penalized by mandatory suspension of their alcoholic beverage license for a period of thirty (30) days.

Defendant further asserts that .pursuant to Sec. 4-44 of the Alexandria Code, the Commission has discretion, within legal boundaries, in determining a penalty for the offense or offenses committed. Section 4-44 states:

If the commission finds that a violation is of a minor nature; that there are extenuating circumstances, or that there are reasonable grounds to expect that licensee/permittee will not again violate any of the provisions of this chapter, it may, by majority vote and after hearing all evidence, elect to warn any licensee/permittee, levy fines, or suspend the license or permit. If the violation is flagrant or serious, or if the licensee/permittee has had his license/permit suspended, the commission may revoke the license/permit and shall immediately notify applicable state and local authorities of its action.

Defendant asserts that Plaintiff was fully aware of the penalties for violating the applicable law since he was a licensee, and any person applying for a liquor license is required to sign a statement acknowledging that he is fully cognizant of the provisions of the law pertaining to the sale of alcoholic beverages to minors. Alexandria Code, Sec. 4-24.

Defendant additionally points out that Plaintiff admitted in his petition that he |7had committed two violations before the commission of the violations in the instant case. Considering the fact that Plaintiff stipulated at the outset of trial that three separate violations of the law prohibiting the sale of alcohol to minors took place in his stores, Defendant asserts that the fines and the thirteen-day suspension of Plaintiffs liquor license were well within its discretion and were allowed under the law, pursuant to Sec. 4-62 and 4-44. Defendant further argues that because Plaintiff had committed three separate offenses/violations, and also had previous violations, it had the authority to fine Plaintiff and to also suspend his liquor license for up to thirty days, in light of his three separate offenses.

Plaintiff rebuts this argument, maintaining that the thirteen-day suspension of his liquor license is excessive. He asserts that the trial judge acted within his discretion by overturning the ruling of the Commission pursuant to La.R.S. 26:106 and 26:108. He further argues that the Commission presented no evidence to substantiate its claim. Plaintiff contends that he rebuked the license suspension by asserting that he had paid his fines and had further taken remedial measures to ensure that such violations would not occur again in the future..

In Bibbins v. City of New Orleans, 02-1510 (La.App. 4 Cir. 5/21/08), 848 So.2d 686, writ denied, 03-1802 (La.10/10/03), 855 So.2d 357, the court explained the standard of review for cases such as this one:

A liquor licensee or permitee is entitled to a trial de novo on appeal to the district court from the local ABC Board’s decision under La.R.S. 33:4788. The standard of review from the decision of an administrative body is to determine if the administrative hearing was conducted under the procedural formalities of the statute; if the fact-finding of the administrative body was supported by substantial evidence; and if the administrative body’s conclusion was arbitrary or constituted an abuse of discretion. La.R.S. 49:964
On further review by the state appellate court, the [ Rmanifestly erroneous or clearly wrong standard applies to the findings of the district court.
Where the facts are not in dispute, the reviewing court must consider whether the trial court came to the proper legal determination under the undisputed facts. La.- C.C.P. art. 2164; Maryland Cas. Co. v. Dixie Ins. Co., 622 So.2d 698 (La.App. 1 Cir.1993), writ denied 629 So.2d 1138 (La.1993); Mattery v. International Harvester Co., 14,823[96 — 321] (La.App 3 Cir. 11/6/96), 690 So.2d 765, writ denied, 97-1323 (La.9/5/97), 700 So.2d 512.

Id. at 695.

In the instant ease, the trial court found that the Commission’s suspension of Plaintiffs liquor license was “excessive and cumbersome.” However, considering the applicable ordinances governing the illegal sale of alcohol to minors, we do not agree. It is clear that the penalty imposed upon Plaintiff falls squarely within the legal bounds of Sec 4-62 of the Code of Ordinances for the City of Alexandria. In the case at hand, Plaintiff had three separate violations, one of which was a second offense. Therefore, under the applicable provisions, we find that Plaintiffs liquor license could have been suspended for at least sixteen days (three days for each first offense and 10 days for each second offense), and probably should have been suspended for 30 days, under the mandatory provisions of subsection (b) of Sec. 4-62. Regardless, the Commission did not impose the harshest penalty possible upon Plaintiff for his offenses, and there is nothing in the record that suggests that the suspension was unreasonably harsh under the circumstances. Therefore, we find that the trial court erred in finding that the Commission imposed an excessive penalty upon Plaintiff.

CONCLUSION

We find that Defendant’s appeal was timely filed under the provisions set forth in La.R.S. 26:106(B). After our review of the record, we find that the trial court erred in granting Plaintiff a permanent injunction enjoining the imposition of Defendant’s | flsuspension of his liquor license, as we find Plaintiff did not carry his burden of proving by a preponderance of the evidence that he was entitled to such an injunction. Additionally, we find that the Commission’s imposition of a thirteen-day suspension of Plaintiffs liquor license falls squarely within the limits of Sec 4-62 of the Code of Ordinances for the City of Alexandria. Therefore, we find that the trial court erred in ruling that the penalty imposed upon Plaintiff was excessive. Accordingly, we reverse the decision of the trial court and reinstate the thirteen-day suspension of Plaintiffs liquor license originally imposed by Defendant. All costs of this appeal are assessed to Appellees.

REVERSED AND RENDERED.


author: GASKINS, J.

text:
    STATE of Louisiana, through the LOUISIANA DEPARTMENT OF EDUCATION-FOOD SERVICE, Plaintiff-Appellee v. BRIGHT BEGINNINGS CHILD CARE, INC. a/k/a Bright Beginnings Child Care and Pre-School and Margareta Escher Steed a/k/a Margareta E. Steed, Defendant-Appellant.
    No. 42,146-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 16, 2007.

      Kammer & Huckabay, by Charles H. Kammer, III, Shreveport, for Appellant.
    Charles C. Foti, Jr., Attorney General, Charlene Patterson, Michael F. Miley, Assistant Attorney Generals, for Appellee.
    Before BROWN, GASKINS and MOORE, JJ.
   GASKINS, J.

hln this suit involving overpayments from a food service program to a child care facility, the defendants appealed from a trial court ruling granting summary judgment in favor of the State of Louisiana. They also filed an exception of prescription asserting that some of the claims against them had prescribed. We deny the exception of prescription in part and grant it in part. However, we reverse the trial court judgment granting summary judgment and remand the matter to the trial court for further proceedings.

FACTS

On October 27, 2005, the State of Louisiana, through the Department of Education (DOE), filed a petition to recover overpay-ments made to Bright Beginnings Child Care, Inc., a/k/a Bright Beginnings Child Care and Pre-school, and its president, Margareta Marie Escher Steed, a/k/a Mar-gareta E. Steed, for participating in the Child and Adult Care Food Program (CACFP). The petition alleged the following facts and supplied attached documentation. Pursuant to an agreement executed in 1992, the defendants agreed to operate a food service program for children and adults in non-residential institutions. According to the petition, an audit was conducted in September 1997 of Bright Beginnings’ program for the “period beginning September 30, 1995,” and for the three-month period ending December 31, 1995, and it allegedly indicated that overpay-ments were made. Notice of the overpayment, a request for payment, and a notice of appeal process were sent to the defendants in April 1998; they requested an appeal in May 1998. Eventually the matter was scheduled to go before an ^^administrative law judge; however, the hearing request was ultimately withdrawn by the defendants. A second demand letter was sent to the defendants in August 1999. The matter was referred to the Louisiana Department of Justice (DOJ) for collection. Demand letters were sent by the attorney general’s office in January 2001, July 2001, and August 2001, seeking $35,590.98. Although the defendants disputed the amount owed by letter in November 2001 and October 2002, they failed to submit an audit.

In the alternative, should the Bright Beginnings corporation be found not to be the party who contracted to operate the food service program, DOE alleged in its petition that Ms. Steed willfully or fraudulently applied for and received CACFP funds. The plaintiff alleged that Ms. Steed committed “deliberate acts to defraud” and that these were personal actions for which she was personally liable.

On December 2, 2005, the defendants filed a general denial.

In March 2006, the plaintiff filed a motion for summary judgment. Attached to the motion was an affidavit by Mary L. Benoit, the IT database analyst in the DOJ Collections Section, who attested to her familiarity with the defendant’s account and stated that the amount owed was $35,590.98, together with legal interest from date of judicial demand, until paid, plus attorney fees pursuant to the contract between DOE and DOJ in the amount of 33.33 percent of the principal and interest and all court costs.

In opposition to the motion for summary judgment, the defendants submitted a copy of the audit, an affidavit from Ms. Steed in which she stated that accurate monthly reports were submitted to the state reflecting |athe meals provided to children at the daycare center and the level of benefits each child was entitled to receive, and copies of those reports from March 1995 to December 1995. In their memorandum in opposition, the defendants asserted that review of the plaintiffs own audit showed that, at most, the overpayment to the defendants was only $3,998.97. They also alleged that Louisiana’s 10-year prescriptive period set forth in La. C.C. art. 3499 was applicable. As a result, when suit was filed October 27, 2005, they contend that most of the claims had prescribed.

The plaintiff responded to the opposition, stating that the amount it alleged to be owed was supported by an audit for a specific period of time and that the findings were then “projected out” for a full year of the agreements. It also noted that the defendants were given ample time to produce their own records and/or audit to dispute the amount owed prior to suit being filed. The plaintiff further asserted that prescription had not run due to the post-Katrina suspensions of prescription. In addition to copies of the Louisiana governor’s executive orders suspending prescription, it also attached a letter between DOE and DOJ setting forth the amount of attorney fees for DOJ’s collections for DOE.

On June 5, 2006, the trial court denied the motion for summary judgment. However, that same day, the plaintiff filed an affidavit from John Dupre, the director of the division of nutrition assistance for DOE, verifying the facts as alleged in the petition and the motion for summary judgment, including the amount of $35,590.98 as the outstanding balance owed. On June 6, 2006, the motion was recalled for argument and, based on the | ¿affidavit, summary judgment was granted. Judgment was rendered against Bright Beginnings Child Care, Inc., a/k/a Margareta Marie Escher Steed, in the amount of $35,590.98, together with legal interest from the date of judicial demand until paid, plus attorney fees pursuant to the contract between DOJ and DOE in the amount of 33.33 percent of the principal and interest and all costs of court.

Bright Beginnings Child Care, Inc., and Margareta Marie Escher Steed filed a de-volutive appeal in September 2006. In January 2007, they filed an exception of prescription in the appellate court, which was ordered deferred to the merits of the appeal.

PRESCRIPTION

Under the provisions of La. C.C.P. art. 852, the pleadings allowed in civil actions shall be in writing and shall consist of petitions, exceptions, written motions, and answers. Consequently, an exception of prescription should be in the form of a written pleading. In the instant case, no exception of prescription was filed in the trial court; the issue was simply raised in the opposition to the motion for summary judgment. The trial court made no specific finding on the issue of prescription. However, the defendants filed an exception of prescription in this court, pursuant to La. C.C.P. art. 2163, and the plaintiff has not requested that the.matter be remanded to the trial court for determination. Therefore, the issue is properly before this court.

The plaintiff argues that it is not subject to prescription under the provisions of La. Const, art. 12, § 13, which states: “Prescription shall not [¿run against the state in any civil matter, unless otherwise provided in this constitution or expressly by law.” However, the Department of Education is created and shall be a body corporate with the power to sue and be sued. La. R.S. 36:642. As such, the Department of Education is a distinct legal entity subject to claims of prescription. State through Governor’s Special Commission on Education Services v. Dear, 532 So.2d 902 (La.App. 5th Cir.1988). See State, Through Department of Highways v. City of Pineville, 403 So.2d 49 (La.1981).

We conclude that the appropriate prescriptive period for the instant case is found in La. C.C. art. 3499, which provides: “Unless otherwise provided by legislation, a personal action is subject to a liberative prescription of ten years.” Suit was filed on October 27, 2005. The defendants argue that under the 10-year prescriptive period, the only portions covered by the audit which had not prescribed by the time suit was filed were October through December 1995.

We note that the occurrences of Hurricanes Katrina and Rita in August and September of 2005 led to suspensions of prescription in Louisiana. Subsequently the Louisiana Legislature enacted La. R.S. 9:5821, which ratified the governor’s executive orders, and La. R.S. 9:5822, which provided for a limited suspension of prescription during the time period of August 26, 2005, through January 3, 2006, due to the hurricanes. See Fox Electric, L.L.C. v. Moghimi, 41,197 (La.App.2d Cir.9/20/06), 939 So.2d 604.

| [¡Applying the 10-year prescriptive period of La. C.C. art. 3499 and taking into consideration the hurricane-related suspensions of prescription, we find that the portions of the audit covering August 26, 1995, to December 31, 1995, have not prescribed. However, the portions covered by the audit on or before August 26, 1995, have prescribed.

The defendants also argue that the claim against Ms. Steed alleging fraudulent conduct falls under the one-year prescriptive period of La. C.C. art. 3492. Fraud is a tort, which is governed by the liberative prescription of one year. Bell v. Demax Management Inc., 2001-0692 (La. App. 4th Cir.7/24/02), 824 So.2d 490. La. C.C. art. 3492 provides that the one-year prescription period for delictual actions begins to run from the date the injury or damage is sustained. Damage is considered to have been sustained, within the meaning of article 3492, only when it has manifested itself with sufficient certainty to support accrual of a cause of action. Cole v. Celotex Corp., 620 So.2d 1154 (La.1993); Martinez Management, Inc. v. Caston, 39,500 (La.App.2d Cir.4/13/05), 900 So.2d 301. The petition asserts that an audit was done in 1997 which showed alleged overpayments in 1995 and that Ms. Steed committed “deliberate acts to defraud” apparently in connection with these 1995 overpayments. In view of the fact that the law suit was not filed until 2005, the fraud claims against her are prescribed on the face of the petition.

We grant the exception of prescription in part and deny it in part.

I,SUMMARY JUDGMENT Law

Appellate courts review summary judgments de novo using the same criteria that govern a district court’s consideration of whether summary judgment is appropriate. Schroeder v. Board of Supervisors of Louisiana State University, 591 So.2d 342 (La.1991); Jones v. Estate of Santiago, 2003-1424 (La.4/14/04), 870 So.2d 1002.

A motion for summary judgment will be granted if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact, and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). Summary judgment procedure is designed to secure the “just, speedy, and inexpensive determination of every action.” La. C.C.P. art. 966(A)(2); Jones v. Estate of Santiago, supra. In 1997, the legislature enacted La. C.C.P. art. 966(C)(2) which clarified the burden of proof in summary judgment proceedings. The initial burden of proof remains • with the mover to show that no genuine issue of material fact exists. If the mover has made a prima, facie showing that the motion should be granted, the burden shifts to the nonmoving party to present evidence demonstrating that a material issue remains. The failure of the nonmov-ing party to produce evidence of a material factual dispute mandates the granting of the motion. Jones v. Estate of Santiago, supra.

Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, Rand shall show affirmatively that the affiant is competent to testify to the matters stated therein. La. C.C.P. art. 967(A).

Discussion

In its motion and order for leave to file a response to the defendants’ opposition, the plaintiff stated the following:

2.
With regard to the amount owed as alleged by the Petitioner and supported by an audit previously submitted as Exhibit A, the Petitioner would respond that the audit was ... for a specific period of time and the findings [were] then projected out for a full year of the agreements. Moreover, the Defendants were given ample time to provide their own records and/or audit to dispute the amount [owed] prior to the commencement of the captioned matter. [Emphasis added]

The plaintiff submitted affidavits from Mary L. Benoit, the IT database analyst in the DOJ Collections Section, and John Dupre, the director of the division of nutrition assistance for DOE, in which each asserted that the amount owed is $35,590.98. Ms. Benoit states that she was familiar with the account of the defendant and the amount of overpayment still outstanding. Mr. Dupre states that, based upon the files and records of DOE, that the defendant received funds totaling $35,590.98 for the time period at issue and that the defendant failed to repay DOE the amount of overpayments made under the CACFP and that there is a current outstanding balance of $35,590.98.

Our review of the documentation provided by the plaintiff reveals that the audit it submitted does not establish the figure of $35,590.98 asserted as jathe amount due. Instead the audit recommends that an overclaim of $3,998.97 ■ for the two audit periods ($2,285.12 for the year ending September 30, 1995, and $1,713.85 for the three-month period ending December 31,1995) be refunded to DOE. While the plaintiff asserts that the audit findings were “projected out” to reach the ultimate sum sought in this lawsuit, it is unclear how the sum of $35,590.98 was reached. Neither of the affidavits submitted in support of the motion for summary judgment explains how the affiant arrived at the amount of $35,590.98 as the amount now due. From the wording of Mr. Dupre’s affidavit, it appears that $35,590.98 was the total amount of funds the defendant received from DOE, as well as the amount of the overpayments. The record does not support a finding that the entire amount of funding must be remitted upon a finding of overpayment of a portion of the funding. We also note that the plaintiff did not establish the amount due through requests for admissions or interrogatories. Further, no statute or contract between the parties providing for payment of attorney fees was attached or cited.

We find that the movant’s documentation in connection with its motion for summary judgment does not support its demands and that the granting of summary judgment was inappropriate. A genuine issue of material fact exists as to the amount owed by the defendant. Accordingly, the trial court judgment is reversed. We remand the matter to the trial court for further proceedings.

| ^CONCLUSION

The defendants’ peremptory exception of prescription is denied as to claims under the audit arising after August 26, 1995. However, it is granted as to claims arising on or before August 26,1995, and as to the fraud claims against Ms. Steed. The trial court judgment granting summary judgment in favor of the plaintiff is reversed. The matter is remanded to the trial court for further proceedings.

Costs of this appeal are assessed against the plaintiff in the amount of $ 119.50.

EXCEPTION OF PRESCRIPTION DENIED IN PART AND GRANTED IN PART; SUMMARY JUDGMENT REVERSED; REMANDED.

      . However, the audit indicates that this period was actually for the year ending September 30, 1995.

      . No other statute which would provide for a longer prescriptive period than discussed herein was asserted by the plaintiff.

      . Also found in the record is an affidavit of correctness of account executed by Ursula Green, the plaintiff's' accounting clerk, in which she likewise asserted familiarity with the amount owed and stated that the amount was $35,590.98. However, it is unclear when this affidavit was filed.


author: GENOVESE, Judge.

text:
    David James JETT, II v. Sharolette Brown JETT.
    No. 2006-1648.
    Court of Appeal of Louisiana, Third Circuit.
    May 23, 2007.

      Tony C. Tillman, Office of Tony C. Tillman, Leesville, Louisiana, for Plaintiff/Appellant, Sharolette Brown Jett.
    Scott Westerchil, Anderson & Wester-chil, Leesville, Louisiana, for Defendant/Appellee, David James Jett, II.
    Court composed of SYLVIA R. COOKS, OSWALD A. DECUIR, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

bln this action to partition community property belonging to Sharolette Brown Jett (Sharolette), and her former spouse, David James Jett, II (David), Sharolette appeals the trial court’s judgment partitioning the parties’ community property interest in David’s retirement account. For the following reasons, we reverse and render judgment.

FACTS

David and Sharolette were married on July 1, 1970. A petition for legal separation was filed on February 27, 1990, and a subsequent legal separation was granted thereby terminating the community property regime retroactive to the date of filing therefor. A petition for divorce was filed January 15, 1991, and the parties were divorced on March 22,1991.

David became employed by the Louisiana State Police (State Police) on May 27, 1979. As of the effective date of the community property partition, David was a Senior Trooper with the State Police. In November of 1995, he attained the rank of Master Trooper, and in May of 1996 he was promoted to the rank of Sergeant. The amount of David’s retirement benefit became fixed in January 2001, upon his entering the Deferred Retirement Option Plan (DROP program). Although he continued to work for the State Police, David ceased contributing to the retirement program at the pay level which he had achieved as a Sergeant. Six months later, in July of 2001, David received another promotion to Lieutenant. In January of 2004, David re-entered the retirement program for a period of one year in order to receive his retirement pay at the rank of Lieutenant. He retired as a Lieutenant with the State Police on January 5, 2005.

|2On September 24, 2004, Sharolette filed a petition for partition of community property. Subsequent thereto, the parties reached an amicable community property partition of all property except their retirement accounts. This matter went to trial on August 26, 2005. The record indicates that Sharolette’s retirement was not at issue and that the parties agreed that Sharolette was to receive 20.9% of the legally determined retirement funds or benefits received by David from his State Police retirement.

Therefore, in partitioning David’s retirement account, the trial court was faced with the sole issue of whether Sharolette had an interest in the increases in David’s retirement account occurring after the termination date of their former community property regime. The trial court found that David’s “promotion to lieutenant was due more to meritorious or personal achievement than an ordinary progression of benefits.” The trial court’s written reasons concluded that the Sims formula was to be applied “to the highest income [David] would have received under the normal course of events, including ordinary promotions and cost increases and gains due to nonpersonal factors.” The judgment signed by the trial court on September 25, 2006 ordered that Sharolette “shall receive 20.9% of any funds or benefits, including any cost of living adjustments, that shall become payable by the Louisiana State Police Retirement Fund to [David James Jett, II] at the rank of Master Trooper.” It is from this judgment that Sharolette appeals.

I «ASSIGNMENT OF ERROR

Sharolette’s sole assignment of error is set forth as follows:

The Trial Court erred in deviating from the Sims formula, and misapplied the facts of the current case to the three part test established by the Supreme Court in Hare v. Hodgins, 586 So.2d 118[] (La.1991) in that, as a matter of law, the employee spouse did not meet his burden of proving the promotions and increase in income post-divorce were solely attributed to his meritorious efforts and achievements.

In addressing Sharolette’s assignment of error, we must determine whether David met his burden of proof under Hare that his promotion to the rank of Sergeant and then to Lieutenant with the State Police was due to meritorious or personal achievement as opposed to an ordinary progression of benefits. Sharolette seeks 20.9% of David’s retirement at his pay scale as a Lieutenant with the State Police as opposed to the trial court’s ruling that she was only entitled to 20.9% of David’s retirement at his pay scale as a Master Trooper.

LAW AND DISCUSSION

A judicial division of a retirement account pursuant to community property partition is generally accomplished by the application of the Sims formula which determines what amount of the account is community property, and the resultant percentage due to a former spouse. However, in Hare, our supreme court explained that the Sims formula is not to be applied in all situations. In Hare, the Louisiana Supreme Court opined:

The general rules for the partition of community property, however, do not address all of the problematic ramifications of classifying, valuating and distributing each spouse’s interest in pension benefits which have been earned by one spouse partly during the marriage and partly before or after. In such cases, the pension benefits are composed of the separate property interest of the employee spouse in addition to the community interest. Furthermore, there is no custom from which rules can be derived for each particular situation. Accordingly, in the present case and others a court is bound to proceed |4and decide equitably to some extent, making resort to justice, reason and prevailing usages.
Nevertheless, there will be unusual cases in which a substantial part of the increased retirement benefits earned by the employee spouse after divorce will not result from a foundation provided by prior community earnings. In such cases, the partitioning court should select a more equitable method or modify the community or marital fraction rule to attribute that part of the post-divorce increase to the employee spouse separately. Although the emerging jurisprudential precepts are not yet well defined, some factors may be identified as helpful guidelines in determining when such a modification is required.

Hare, 586 So.2d at 123-128 (citations omitted).

The supreme court in Hare went on to provide the following guidance to the trial court in situations where the application of Sims would not be appropriate, stating as follows:

In general, the partitioning court should inquire as to whether a substantial post-community increase is due to personal effort or achievement after the termination of the community that has little or no relationship with the prior community. The community should not be given credit when a substantial post-community increase to a retirement fund is due to a singular personal factor such as individual effort, education or achievement resulting in a merit raise or an extraordinary promotion or series of promotions.... On the other hand, when such an increase results from non-personal elements such as longevity raises, cost-of-living raises, forfeitures by terminated employees, and investment returns, the community should participate in that gain.
When an employee spouse believes that the income he or she will receive on retirement contains a substantial increment ascribable to his or her personal effort or achievement after termination of the community, that spouse may request the court to adjust the community fraction to credit his or her separate property with that increment. Should the trial court agree that the pension was increased due to the employee spouse’s personal effort or achievement, benefits may then be reallocated using the highest income the employee spouse would have received under the normal course of events, including ordinary promotions and cost increases and gains due to non-personal factors.

5Hare, 586 So.2d at 128 (citations omitted).

This court has had the occasion to apply Hare, and in so doing, noted that “[t]he supreme court in Hare established a three-part test for the partitioning court to apply in determining whether or not a substantial post-community increase is due purely to personal merit.” Rivera-Santos v. Rivera-Santos, 03-667, p. 3 (La.App. 3 Cir. 12/10/01), 862 So.2d 480, 483. “First, the increment must represent a fairly substantial increase- in the employee spouse’s post-community earnings. Second, the increment must not be due to a non-personal factor, such as cost-of-living raises, etc. Third, the increment must be attributable to the employee spouse’s meritorious individual efforts or achievements.” Id. (quoting Hare, 586 So.2d at 128). Finally, the burden of proof is on the employee spouse and “any doubt should be resolved in favor of the community” Id. (citing Hare, 586 So.2d 118).

“[T]he mere fact of continued employment, without more, is insufficient proof’ that increases in a retirement account are the result of a spouse’s “personal effort or achievement.” McCown v. McCown, 93-899, p. 7 (La.App. 3 Cir. 3/2/94), 634 So.2d 1249, 1253. Rather, this court has opined that an increase in earnings that is the result of an employee spouse obtaining “a post-community degree, or transfer within the company to an unrelated area of service” are examples of personal achievements warranting deviation from the Sims formula. Id. at 1252 (emphasis added) (quoting Moore v. Moore, 596 So.2d 252, 255 (La.App. 3 Cir. 1992)).

In the instant matter, the trial court’s written reasons for judgment reflect the following findings:

| ^Considering the circumstances of this case where the parties had been divorced for [eleven] years, the spouses’ job performance and achievements were about equal during the marriage, as after divorce, and the rigorous screening process for promotion to lieutenant, the Court finds it is more probable than not Mr. Jett’s promotion to lieutenant was due more to meritorious or personal achievement than an ordinary progression of benefits.

The facts in this case are straightforward, either undisputed or uncontroverted. Sharolette does not dispute the various certifications and promotions obtained by David. Captain Ron Whitaker, a Troop Commander with the State Police, testified about the promotion process of the State Police. He explained that in order for a Master Trooper to advance to Sergeant, he must have a minimum of five years of service. The trooper then takes a test and appears before a promotional panel. The panel considers the trooper’s background “to find out what he has done throughout his career” including the types of schools, training, and awards that he has received during his time with the State Police. Similarly, achieving Lieutenant status requires a minimum of two years of service as a Sergeant followed by testing and a selection process. However, Captain Whitaker explained that the only real requirement for qualifying for a promotion with the State Police is length of service and rank of a trooper and a test. The final selection for a promotion is then made considering the trooper’s entire career from the time he began with the State Police.

Numerous certificates, which were obtained by David over the course of his employment with the State Police, were introduced as evidence. David acquired a number of certifications both before and after the divorce. Additionally, David testified regarding the particular training received by him both before and after the divorce. Although David testified that he was not required to take the courses or training, and that they were taken by him on an elective basis, he acknowledged that |7annual re-certification is required of all troopers and that there are “updates which everyone is required to attend.” Additionally, he “actively sought training throughout [his] careerf,]” and his participation did not change after the divorce.

The evidence shows that David completed several continuing training classes covering a variety of employment-related topics. However, a review of the training which David received post-divorce establishes that his efforts were not of such a nature and degree as to constitute a post-community degree, career change, or particular personal achievement by him. Rather, the courses were of limited duration, often forty-hours, and were similar to the courses that he had undertaken prior to the divorce.

Although this court does acknowledge that David obtained promotions, subsequent to the community property termination date, from Master Trooper to Sergeant to Lieutenant, these promotions alone do not constitute meritorious individual efforts or achievement as required by Hare. David testified that moving from Senior Trooper to Master Trooper is “simply a function of longevity.” Additionally, for purposes of being eligible for a promotion to Sergeant, David explained that qualifying to take the requisite test “is a function of time and grade” and that the final selection process is competitive in nature. Thus, it was simply the passage of time and David’s continued certification and employment with the State Police which made him eligible to be promoted to the rank of Lieutenant as opposed to any particular or extracurricular personal effort by him.

The promotions of David from Master Trooper to Sergeant then to Lieutenant were primarily the result of the training and the certificates which he earned over his years of service with the State Police both during and after the divorce. The ^certificates which he obtained following the divorce are similar to what he had obtained prior to the divorce. The fact that he also took tests and appeared before promotional panels is insufficient to constitute individual meritorious effort or achievement.

For the foregoing reasons, the evidence in the record clearly shows that David “made no major changes in his career activities, he undertook no additional extensive education courses distinct and separate from what he did while he was married, he merely continued the same progression that he embarked on during his marriage” as Sharolette contends. There was no specific event or distinct personal effort to which David can attribute to the subsequent promotions and increase in income. To the contrary, the evidence in the record indicates that it was the cumulative training which David underwent during the years of his employment which qualified him for the promotions as opposed to any extraordinary act. In his words, “it is an accumulative process.” Mindful that Hare requires that we must resolve any doubt in favor of tke community, we conclude that David failed to meet the burden of proof required in Hare that his increase in pay was due to “a singular personal factor such as individual effort, education or achievement.” We find that the trial court erred as a matter of law in its application of Hare and in its failure to resolve any doubt in favor of the community.

Therefore, we find that the retirement benefits at issue herein, and specifically the increases via David’s promotions up to the rank of Lieutenant, are the community property of the parties in their entirety and are to be divided accordingly. Therefore, David’s retirement benefits from the Louisiana State Police Retirement System are to be partitioned in accordance with the Sims formula.

1 ;,DECREE

For the foregoing reasons, we reverse the judgment of the trial court ordering that Sharolette Brown Jett “shall receive 20.9% of any funds or benefits, including any cost of living adjustments, that shall become payable by the Louisiana State Police Retirement Fund to [David James Jett, II] at the rank of Master Trooper” and render judgment ordering that Sharo-lette Brown Jett shall receive 20.9% of any funds or benefits, including any cost of living adjustments, that shall become payable by the Louisiana State Police Retirement Fund to David James Jett, II at the rank of Lieutenant.

Costs of this appeal are assessed against David James Jett, II.

REVERSED AND RENDERED.

      . Since Sharolette was the plaintiff in the petition seeking to partition the community property, for purposes of the present appeal, Sharolette is referred to as “PlaintifpAppel-lant.”

      . The Louisiana Supreme Court, in Sims v. Sims, 358 So.2d 919 (La.1978), enunciated a formula for the division of retirement accounts which had not yet matured at the time of a community property partition. This became known as the “Sims formula.”

      . In the case at bar, the parties agree that the first two prongs of the Hare test have been met. Therefore, this appeal is concerned solely with the third prong of the test, i.e., whether the incremental increases are attributable to David’s "meritorious individual efforts or achievements.”


text:
    Mrs. Regina Allen DUMACHEST and Mr. Christopher Allen, Individually and on Behalf of Their Deceased Mother, Mrs. Thelma Bellard Allen v. Mr. Johnathan J. ALLEN and Celadon Trucking Services, Inc., et al.
    No. 2006-1614.
    Court of Appeal of Louisiana, Third Circuit.
    May 23, 2007.

      Dr. Edward A. Robinson, III, Mark E. Robinson, Law Offices of Dr. Edward A. Robinson, III, Baton Rouge, Louisiana, for Plaintiffs/Appellants.
    Mrs. Regina Allen Dumachest and Mr. Christopher Allen, individually and on behalf of their deceased mother, Mrs. Thelma Bellard Allen, James A. Burton, M. Davis Ready, Shannon H. Huber, Simon, Peragine, Smith & Redfearn, L.L.P., New Orleans, Louisiana, for Defendant/Appellee Celadon Trucking Services, Inc.
    Patrick S. McGoey, Andrea V. Timpa, Schonekas, Winsberg, Evans & McGoey, L.L.C., New Orleans, Louisiana, for Defendant/Appellee Johnathan J. Allen.
    Court composed of SYLVIA R. COOKS, OSWARD A. DECUIR, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

| plaintiffs, Regina Allen Dumachest and Christopher Allen, individually and on behalf of the estate of their deceased mother, Thelma Bellard Allen (Thelma Allen), appeal the dismissal of their lawsuit against Celadon Trucking Services, Inc. (Celadon), pursuant to a declinatory exception of lack of personal jurisdiction. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

This case arises out of an alleged one-vehicle accident near Texarkana, Texas, on January 12, 2005. Plaintiffs allege that their mother, Thelma Allen, a Louisiana resident, was a guest passenger in an eighteen-wheeler combination truck and trailer owned by Defendant, Celadon, and driven by its employee, Johnathan Allen, likewise made a Defendant herein. Thelma Allen allegedly injured her left, lower leg and ankle when she fell from the bed of the truck’s cab onto the floor of the cab when Johnathan Allen (her son) abruptly swerved and applied his brakes in a successful effort to allegedly avoid a collision with another vehicle. Thelma Allen, a diabetic, initially sought treatment for the injuries to her left, lower leg and ankle in Texarkana, Texas; however, Plaintiffs allege that Thelma Allen was denied further treatment for her worsening condition by Johnathan Allen until after their return to Lafayette, Louisiana, on January 23, 2005. When Thelma Allen sought treatment at the emergency room of the Lafayette General Medical Center, the injuries to her leg and ankle had progressed into a serious bone infection. After an unsuccessful attempt to treat her bone infection, an amputation of Thelma Allen’s left foot and ankle was performed on January 24, 2005. A second surgery was performed on February 1, [22005, whereby Thelma Allen’s remaining left leg, below her knee, was also amputated. On March 29, 2005, Thelma Allen died after suffering cardiopulmonary arrest at her home.

Plaintiffs filed survival and wrongful death claims against Celadon and Johnathan Allen, alleging that Thelma Allen’s injuries and subsequent death resulted from the fault of Johnathan Allen. Plaintiffs’ petition asserts that Thelma Allen lived with chronic pain from the date of her injury, January 12, 2005, until her untimely death on March 29, 2005.

Celadon filed a declinatory exception of lack of personal jurisdiction, asserting that it is incorporated in New Jersey, its principal place of business is in Indiana, and the alleged accident at issue herein occurred in Texas; therefore, the State of Louisiana cannot exercise personal jurisdiction over it. The trial court sustained Celadon’s declinatory exception stating:

There is no specific jurisdictional basis, the accident having — not having had [sic] occurred in Louisiana. And there’s no general jurisdictional basis because Celadon does not have sufficient minimum contacts with the State of Louisiana in order to support jurisdiction in personam.
The — I find that the contacts that Ce-ladon does have with the State, i.e., the fact that some of their twenty-nine hundred (2,900) employees reside in Louisiana and some of the driver-owned trucks are even garaged here is a contact. Ce-ladon drivers get tickets in Louisiana, but I find that those contacts are coincidental and occur nationwide, and really don’t have anything to do with Celadon particularly seeking out Louisiana as a place to do business. It’s just that they’re a nationwide company whose trucks roll through the state of Louisiana. It’d certainly be a different result if the accident had occurred in Louisiana. Then you’d have a specific jurisdictional basis. But in this case I find no basis for in personam jurisdiction against Celadon.

A judgment was signed by the trial court on February 23, 2006, sustaining Ce-ladon’s declinatory exception of lack of personal jurisdiction and dismissing all of Plaintiffs’ claims against Celadon.

|aISSUE

The sole issue presented in this appeal is whether Celadon’s contacts with the State of Louisiana were sufficient to confer personal jurisdiction over it in the State of Louisiana.

STANDARD OF REVIEW

“An appellate court conducts a de novo review of the legal issue of personal jurisdiction over a nonresident by a Louisiana court. However, the trial court’s factual findings underlying the decision are reviewed under the manifest-error standard of review.” Peters v. Alpharetta Spa, L.L.C., 04-979, pp. 3-4 (La. App. 1 Cir. 5/6/05), 915 So.2d 908, 910 (citations omitted).

LAW AND DISCUSSION

Louisiana’s long-arm statute, La.R.S. 13:3201, authorizes the exercise of personal jurisdiction over non-residents by providing, in pertinent part:

A. A court may exercise personal jurisdiction over a nonresident, who acts directly or by an agent, as to a cause of action arising from any one of the following activities performed by the nonresident:
(1) Transacting any business in this state.
(2) Contracting to supply services or things in this state.
(3) Causing injury or damage by an offense or quasi offense committed through an act or omission in this state.
(4) Causing injury or damage in this state by an offense or quasi offense committed through an act or omission outside of this state if he regularly does or solicits business, or engages in any other persistent course of conduct, or derives revenue from goods used or consumed or services rendered in this state.
(5) Having an interest in, using or possessing a real right on immovable property in this state.
|4B. In addition to the provisions of Subsection A, a court of this state may exercise personal jurisdiction over a nonresident on any basis consistent with the constitution of this state and of the Constitution of the United States.

Personal Jurisdiction

In Davis v. Dempster, Inc., 00-662 (La. App. 3 Cir. 11/29/00), 790 So.2d 43, writ denied, 00-3519 (La.2/9/01), 785 So.2d 830 (citations omitted), this court discussed the types of personal jurisdiction:

[Pjersonal jurisdiction may be either general or specific. When the suit arises out of or is related to a defendant’s contacts with the forum state, the exercise of personal jurisdiction is one of specific jurisdiction. However, if the exercise of jurisdiction arises in a case not stemming from the defendant’s contacts with the forum, the exercise of personal jurisdiction is one of general jurisdiction. When this latter category is in question, a defendant may be subject to the forum state’s exercise of personal jurisdiction if contacts with the state are continuous and systematic.
In de Reyes [v. Marine Management and Consulting, Ltd.], 586 So.2d 103 [ (La.1991) ], the Louisiana Supreme Court explained that whether proceeding under a theory of general jurisdiction or one involving specific jurisdiction, the analysis is the same. Under either theory, a determination as to whether due process standards have been met requires a two-part analysis of 1) minimum contacts with the forum state and 2) consideration of whether maintenance of the suit is consistent with notions of fair play and substantial justice.

Burden of Proof

The burden of proving minimum contacts with the forum state, for long-arm statute purposes, is on the party claiming jurisdiction to be proper. Hunt v. Schult Homes Corp., 94-1592 (La.App. 3 Cir. 5/3/95), 657 So.2d 124. If Plaintiffs are able to establish that Celadon has had sufficient minimal contacts with Louisiana, then a presumption arises that assertion of personal jurisdiction by the state court is reasonable. If Plaintiffs are able to accomplish this, then the burden shifts to Celadon to prove that the State of Louisiana’s assertion of personal jurisdiction would be | ..¡unreasonable in light of traditional notions of fair play and substantial justice. See de Reyes, 586 So.2d 103.

Specific Jurisdiction

In their brief to this court, Plaintiffs argue that the State of Louisiana has specific jurisdiction over Celadon pursuant to La.R.S. 13:3201(A). Plaintiffs assert that their claims arise from damages which occurred in Louisiana because Celadon’s employee, Johnathan J. Allen, was acting as Celadon’s agent when he engaged in tor-tious conduct. Specifically, Plaintiffs allege:

from the time of the accident in Texar-kana on January 12, 2005 until the decedent was returned to Lafayette, Louisiana for proper medical care, Celadon through its employee, Johnathan J. Allen, continued to engage in tortious conduct wrongfully detaining the deceased in the Celadon vehicle for more than eight (8) days when she required additional medical attention, thus depriving the deceased of the proper medical care. All actions performed by Johnathan J. Allen were within the course and scope of his employment with Celadon. While the defensive maneuvers employed by Johnathan J. Allen to avoid collision with the phantom vehicle occurred outside the geographic confines of the State of Louisiana, some of Allen’s actions in delaying medical treatment of these actions occurred within the geographic borders of the State of Louisiana.

Plaintiffs also assert that the State of Louisiana has personal jurisdiction over Cela-don because Celadon contracted with Thelma Allen in Louisiana. Plaintiffs contend that Celadon subjected itself to personal jurisdiction in the State of Louisiana through Celadon’s requirement that Thelma Allen execute a “Passenger — Hold Harmless Agreement” prior to the commencement of her trip with Johnathan J. Allen. Plaintiffs offered a copy of the agreement that Thelma Allen executed on December 27, 2004 before a notary public in Crowley, Acadia Parish, Louisiana. Therefore, Plaintiffs argue that Celadon’s contract with Thelma Allen, a Louisiana resident, supports their contention that Celadon contractually submitted itself to jurisdiction in Louisiana.

| fiCeIadon argues that the action which allegedly caused harm to Thelma Allen purportedly occurred in Texas, not in Louisiana as La.R.S. 13:3201(A)(3) requires. Further, Celadon counters Plaintiffs’ assertion that Celadon contractually submitted itself to Louisiana’s jurisdiction when Thelma Allen signed its “Passenger — Hold Harmless Agreement.” In its brief to this court, Celadon asserts that to subject it to personal jurisdiction based solely upon said agreement would, in effect, allow Plaintiffs “to have it both ways,” since Plaintiffs also dispute the merits of the contract which, by its terms, bars any recovery by Thelma Allen.

We disagree with Plaintiffs’ contention that Thelma Allen’s execution of Cela-don’s “Passenger — Hold Harmless Agreement” is sufficient to establish a finding of personal jurisdiction. “An individual’s contract with an out-of-state party alone cannot establish minimum contacts in the home forum.” A & L Energy, Inc. v. Pegasus Group, 00-3255, p. 7 (La.6/29/01), 791 So.2d 1266, 1272. The “Passenger— Hold Harmless Agreement” contemplates Thelma Allen’s riding as a passenger in Celadon’s vehicle, to be driven by Cela-don’s employee, Johnathan Allen. Said agreement states, in part:

I do hereby indemnify and otherwise hold harmless, Celadon Trucking Services, Inc., its officers, employees, agents, and assigns from any and all liability for claims arising in connection with the operation of the vehicle. I do further waive any and all rights to claims of any nature, present and future, as a result of being a passenger in this vehicle.

Even assuming that Thelma Allen’s execution of Celadon’s “Passenger — Hold Harmless Agreement” meets Plaintiffs’ burden of proving a sufficient minimum contact with Louisiana, we find that Celadon has met its burden of proving that assertion of jurisdiction would be unreasonable in light of traditional notions of fair play and substantial justice.

| •¡General Jurisdiction

Pursuant to La.R.S. 13:3201(B), we must review the facts to determine whether or not the exercise of personal jurisdiction over Celadon complies with constitutional due process. Hanks v. Kinetics Group, Inc., 03-1354 (La.App. 3 Cir. 6/2/04), 878 So.2d 782, writs denied, 04-1517, 04-1693 (La.10/1/04), 883 So.2d 990, 883 So.2d 994 (citing Hallaron v. Jacob’s Eng’g Group, Inc., 02-903 (La.App. 5 Cir. 2/11/03), 839 So.2d 952, writ denied, 03-1844 (La.10/31/01), 857 So.2d 478). “Due process requires that in order to subject a nonresident defendant to a personal judgment, the defendant must have certain minimum contacts with the forum state such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.” Hallaron, 839 So.2d at 954 (citing de Reyes, 586 So.2d 103, and International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945)).

As set forth in the affidavit of Cela-don’s Corporate Programs Attorney, Dennis L. Elschide (Elschide), Celadon is a New Jersey corporation with its principal place of business in Indiana. According to Elschide’s affidavit, executed in November of 2005, Celadon employed approximately 2,900 employees and, of those employees, only forty-eight, or approximately 1.6%, had Louisiana licenses. Since July 1, 2003, Celadon had knowledge of 1,965 motor vehicle incidents involving its drivers of which thirty-one occurred in Louisiana, or approximately 1.5%. Celadon did not maintain, own, or lease offices or other property in Louisiana. Celadon did not have trucks garaged in Louisiana. Celadon had no offices in Louisiana, and Celadon did not advertise in publications which specifically targeted Louisiana.

After a careful de novo review of the record, facts, and circumstances in this | scase, we find that Celadon’s contacts with the State of Louisiana are insufficient for the State of Louisiana to exercise jurisdiction over it. We opine that the agreement executed by Thelma Allen upon which Plaintiffs rely to establish jurisdiction in the State of Louisiana is not sufficient to satisfy the constitutional minimum contacts test. The accident at issue herein did not occur in Louisiana, nor does Cela-don conduct its business in Louisiana; therefore, it could not reasonably expect to be sued in the State of Louisiana, or defend itself in a Louisiana court. To subject Celadon to personal jurisdiction in the State of Louisiana would offend traditional notions of fair play and substantial justice. Therefore, under the minimum contacts analysis, and considering the facts in this case and applicable law, we agree with the trial court’s finding that a sufficient basis does not exist to subject Celadon to personal jurisdiction in the State of Louisiana.

DECREE

Accordingly, the judgment of the trial court sustaining Celadon’s declinatory exception raising the objection of lack of personal jurisdiction is hereby affirmed. Plaintiffs, Regina Allen Dumachest and Christopher Allen, individually and on behalf of the estate of their deceased mother, Thelma Bellard Allen, are assessed with all costs of this appeal.

AFFIRMED.

      . Defendant, Johnathan Allen, is Thelma Allen’s son and Plaintiffs’ brother.