text:
    STATE ex rel. Terrance KNOX v. STATE of Louisiana.
    No. 2007-KH-0437.
    Supreme Court of Louisiana.
    Nov. 21, 2007.
   In re Knox, Terrance; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. G, No. 374-583; to the Court of Appeal, Fourth Circuit, No. 2006-K-1574.

Denied.


source: Caselaw Access Project

license: Public Domain

text:
    STATE ex rel. James BROWN v. STATE of Louisiana.
    No. 2007-KH-0438.
    Supreme Court of Louisiana.
    Nov. 21, 2007.
   In re Brown, James; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. J, No. 97-4862; to the Court of Appeal, Fifth Circuit, No. 07-KH-60.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; State v. Parker, 98-0256 (La.5/8/98), 711 So.2d 694; La.C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172.


text:
    STATE ex rel. Jackie V. LEE v. STATE of Louisiana.
    No. 2007-KH-0451.
    Supreme Court of Louisiana.
    Nov. 21, 2007.
   In re Lee, Jackie V.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. I, No. 202,551; to the Court of Appeal, Second Circuit, No. 42068-KH.

Denied.


text:
    STATE ex rel. Andre J. PICKETT v. STATE of Louisiana.
    No. 2007-KH-0452.
    Supreme Court of Louisiana.
    Nov. 21, 2007.
   In re Pickett, Andre J.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Rapides, 9th Judicial District Court Div. A, No. 265769; to the Court of Appeal, Third Circuit, No. KH 06-01380.

Denied.


text:
    STATE ex rel. Donald STELLY v. STATE of Louisiana.
    No. 2007-KH-0455.
    Supreme Court of Louisiana.
    Nov. 21, 2007.
   In re Stelly, Donald;— Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of West Feliciana, 20th Judicial District Court Div. B, No. W-06-10-356; to the Court of Appeal, First Circuit, No. 2006 KW 2480.

Denied. La.C.Cr.P. art. 930.4(A); La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; La.C.Cr.P. art. 351.


text:
    STATE ex rel. Derrick Dewayne DAVIS v. STATE of Louisiana.
    No. 2007-KH-0457.
    Supreme Court of Louisiana.
    Nov. 21, 2007.
   In re Davis, Derrick Dewayne; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Rapides, 9th Judicial District Court Div. A, No. 277,943; to the Court of Appeal, Third Circuit, No. 06-922.

Denied.


text:
    STATE ex rel. Mitchell BROOKS v. STATE of Louisiana.
    No. 2007-KH-0458.
    Supreme Court of Louisiana.
    Nov. 21, 2007.
   In re Brooks, Mitchell; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. F, No. 401-101; to the Court of Appeal, Fourth Circuit, No. 2006-K-1667.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; State v. Parker, 98-0256 (La.5/8/98), 711 So.2d 694; La.C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172.


text:
    STATE ex rel. Gary COOPER v. STATE of Louisiana.
    No. 2007-KH-0460.
    Supreme Court of Louisiana.
    Nov. 21, 2007.
   In re Cooper, Gary; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. A, No. 363847; to the Court of Appeal, First Circuit, No. 2006 KW 2256.

Denied.


text:
    STATE ex rel. Lonnie COOLEY v. STATE of Louisiana.
    No. 2007-KH-0461.
    Supreme Court of Louisiana.
    Nov. 21, 2007.
   In re Cooley, Lonnie; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Madison, 6th Judicial District Court Div. A, No. 27,398.

Denied.


text:
    STATE ex rel. Robert WARNER, Jr. v. STATE of Louisiana.
    No. 2007-KH-0463.
    Supreme Court of Louisiana.
    Nov. 21, 2007.
   In re Warner, Gregory; Warner, Robert Jr. a/k/a; — Plaintiff(s); Applying for Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. B, No. 164-160; to the Court of Appeal, First Circuit, No. 2006 KW 2472.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; State v. Parker, 98-0256 (La.5/8/98), 711 So.2d 694; La.C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172.


text:
    STATE ex rel. Tony THORNTON v. STATE of Louisiana.
    No. 2007-KH-0518.
    Supreme Court of Louisiana.
    Nov. 21, 2007.
   In re Thornton, Tony; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Morehouse, 4th Judicial District Court Div. H, No. 00-1018; to the Court of Appeal, Second Circuit, No. 41542-KH.

Denied.


text:
    STATE ex rel. Frank ALLEN, Jr. v. STATE of Louisiana.
    No. 2007-KH-0526.
    Supreme Court of Louisiana.
    Nov. 21, 2007.
   In re Allen, Frank J.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Rapides, 9th Judicial District Court Div. A, No. 260,502; to the Court of Appeal, Third Circuit, No. KH 06-00657.

Denied.


author: TERRI F. LOVE, Judge.

text:
    STATE of Louisiana v. Karone JOHNSON.
    No. 2007-KA-0851.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 12, 2007.
    Eddie J. Jordan, Jr., District Attorney, Alyson Graugnard, Assistant District Attorney, New Orleans, LA, for Plaintiff/Ap-pellee.
    Laura Pavy, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge PATRICIA RIVET MURRAY, Judge TERRI F. LOVE).
   TERRI F. LOVE, Judge.

| defendant, Karone Johnson, was granted an out-of time appeal on the grounds that he has been deprived of his right to a meaningful appeal of his conviction and sentence due to the unavailability of any transcripts in this case. We vacate the defendant’s conviction and sentence and remand the case for further proceedings.

LAW AND DISCUSSION

The defendant, Karone Johnson, was charged with one count of simple possession of crack cocaine. At his arraignment, he pled not guilty. The court heard and granted his motion to suppress the statement but denied his motion to suppress the evidence. On February 14, 2005, a six-person jury found him guilty as charged. The State filed a multiple bill, to which the defendant pled guilty on March 31, 2005. On that date, the court sentenced him as a third offender to serve forty months at hard labor. Johnson subsequently filed documents with this court in which he maintained that his counsel did not file an appeal for him. This court transferred these documents to the trial court, and on October 19, 2006, that court granted Johnson an out-of-time appeal. The court reporter for the trial court later | ¿certified that the transcripts of the motion hearing, trial, and multiple bill/sentencing were lost during Hurricane Katrina.

In his sole assignment of error, Johnson contends that his conviction and sentence must be vacated because all of these transcripts are unavailable. The State concedes this argument, and we agree.

As this court noted in State v. Sublet, 05-0123, p. 3 (La.App. 4 Cir. 5/18/05), 904 So.2d 778, 780:

La. Const, art. I, § 19 provides in pertinent part: “No person shall be subjected to imprisonment ... without the right of review based upon a complete record of all evidence upon which the judgment is based.” See also, La. C.Cr.P. art. 843, which requires that all trial proceedings be recorded. Louisiana jurisprudence has consistently held that where appellate counsel was not trial counsel and no transcript of the testimony of trial is available, a defendant’s right to “appellate review is rendered meaningless ... and the interests of justice require that a defendant be afforded a new, fully-recorded trial.” State v. Ford, 338 So.2d 107, 110 (La.1976). See also, State v. Harris, 01-1910 (La.App. 4 Cir. 4/24/02), 817 So.2d 1164; State v. Johnson, 01-1909 (La.App. 4 Cir. 1/23/02), 807 So.2d 1071.

Courts have consistently held that a defendant is entitled to a new trial in cases where the unavailability of a trial transcript is not his fault. See Sublet; Harris; Johnson; State v. Clark, 00-0348 (La.App. 4 Cir. 12/13/00), 776 So.2d 1249. Johnson has been deprived of his right to a meaningful appeal of his conviction and sentence due to the unavailability of any transcripts in this case. Because the unavailability of these transcripts cannot be attributed to Johnson, we vacate his conviction and sentence and remand the case for further proceedings.

CONVICTION AND SENTENCE VACATED; REMANDED.


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

text:
    CITY OF NEW ORLEANS v. Clarence YOUNG.
    No. 2007-K-0925.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 12, 2007.
    William Noland, Brandon, MS, for Relator, International Fidelity Insurance Company.
    (Court Composed of Judge MICHAEL E. KIRBY, Judge MAX N. TOBIAS, JR., Judge ROLAND L. BELSOME).
   MAX N. TOBIAS, JR., Judge.

hWe grant the application for supervisory writ to consider whether the trial court erred in refusing to grant the relator, International Fidelity Insurance Company (“IFI”), the issuer of a commercial surety appearance bond for Clarence Young, the defendant, a suspensive appeal from a judgment of court ordering the forfeiture of an appearance bond. For the reasons that follow, we conclude that the trial court erred by refusing to grant IFI’s motion for a suspensive appeal.

The forfeiture of a criminal bail bond is a civil proceeding in nature. La.C.Cr.P. art. 313.

La. R.S. 15:85, relative to the forfeiture, enforcement; and collection of bail bonds states in pertinent part:

(6) Appeals.
(a) The defendant and his sureties shall have the right to an appeal that suspends the effect or the execution of the judgment of bond forfeiture. The security to be furnished for this sus-pensive appeal shall be equal to the bail obligation.
(b) The defendant and his sureties shall have the right to a devolutive appeal of the judgment of bond forfeiture.
(c) All appeals shall be to the appellate court having general civil appellate jurisdiction over the court issuing the judgment of bond forfeiture. [Emphasis supplied.]

l2By virtue of the literal language of La. R.S. 15:85(6)(c), an appeal of the forfeiture of a bail bond is to the appellate court having general civil jurisdiction over the court issuing the judgment. Ordinarily appeals of judgments from the Municipal Court of Orleans Parish are to the Criminal District Court for the Parish of Orleans. However, the Criminal District Court has no civil jurisdiction under La. Const. art. V, § 16(A), except with respect to such matters arising within the original jurisdiction of the Criminal District Court. See Pope v. State, 99-2559, p. 6 n. 9 (La.6/29/901), 792 So.2d 713, 717. Since Criminal District Court has no general civil jurisdiction, the court having such jurisdiction over the Municipal Court of Orleans Parish is the Fourth Circuit Court of Appeal. La. Const. art. V, § 10(A); State, City of Bossier City v. Miller, 40,492, pp. 4-5 (La.App. 2 Cir. 1/25/06), 920 So.2d 408, 411.

We conclude that the trial court is required by law to grant to IFI its motion for suspensive appeal. Accordingly, we reverse the judgment of the trial court denying the relator its motion for a sus-pensive appeal and ordering that IFI seek supervisory writs from this court. We remand this matter to the trial court for its entry forthwith of an order granting IFI a suspensive appeal as provided by law and returnable to this court within the time period provided by law.

WRIT GRANTED; JUDGMENT REVERSED; REMANDED WITH INSTRUCTIONS.


author: COOKS, Judge. GENOVESE, J.,

text:
    Cloradean Prejean GRANGER v. Wallace Anthony GRANGER.
    No. 06-1615.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 26, 2007.
    Rehearing Denied Nov. 14, 2007.

      J.N. Prather, Jr., Lafayette, LA, for Plaintiff/Appellee, Cloradean Prejean Granger.
    Henry C. Perret, Jr., Kyle M. Bacon, Perret Doise, APLC, Lafayette, LA, Harry T. Lemmon, New Orleans, LA, Anne Elizabeth Watson, Dupre & Watson, Opel-ousas, LA, for Defendant/Appellant, Wallace Anthony Granger.

      Court composed of SYLVIA R. COOKS, OSWALD A. DECUIR, and JAMES T. GENOVESE, Judges.
   COOKS, Judge.

| STATEMENT OF THE CASE

Wallace Anthony Granger appeals the decision of the trial court awarding his former spouse, Cloradean, the sum of $400,000 as her share in a closely held corporation. For the reasons assigned below, we affirm the decision of the trial court.

STATEMENT OF THE FACTS

Wallace and Cloradean Granger were married in 1981 and have two children. Shortly after their marriage, the couple formed Technical Tubular Inspection Services, Inc. (Technical Tubular), an oilfield pipe inspection company. Wallace and Cloradean were the sole shareholders. Wallace solicited business for the company and ran the daily operations. Cloradean managed the office, paid the bills and the payroll. Both their- home and business were located on property off of Superior Road in Churchpoint. Although the couple struggled financially in the early years, through the industry of both parties, the business grew and prospered during the fourteen years of their- marriage. By 1993, the last full year of the existence of the community, income tax returns indicate the gross income for Technical Tubular totaled approximately $918,000.

In April 1994, Cloradean filed a petition .for divorce and requested that the community property be divided. Judgment of divorce was rendered in March 1995. The community assets, except for the parties’ interest in Technical Tubular, was partitioned.

In the interim, from April 1994 to March 1995, Wallace was in control of Technical Tubular. The corporation’s gross income for 1994 dropped. In January 1995, in an effort to prevent the downward spiral of the business, Cloradean filed a request to be appointed temporary receiver. The corporation’s income continued to | ¿decline and by June 1995 Technical Tubular was showing sales of only $103,538.

On March 3, 1995, immediately following the judgment of divorce, on the day Clora-dean was appointed receiver, Wallace walked away from the business and formed a new corporation, Tube-Tech. Tube-Tech was staffed by former employees of Technical Tubular, retained former clients of the community business and used a similar name and logo. Cloradean eventually filed for bankruptcy on behalf of Technical Tubular.

Trial on the partition of Technical Tubular was held in January 2006. The trial court found as of the date of trial, the stock in Technical Tubular was worthless. The trial court further held:

Wallace depleted Technical Tubular of its employees and customers. He started a new corporation with a deceptively similar name and logo. He did all of this only days after the judgment was rendered appointing Cloradean temporary receiver of Technical Tubular. Tube-Tech did not exist until March 9, 1995, six (6) days after Cloradean was appointed receiver of Technical Tubular, and Wallace was ordered not to dispose of any property of Technical Tubular, nor to change the status of the affairs of Technical Tubular to the injury of Clora-dean. Wallace Granger did exactly that which the March 3, 1995 Judgment ordered him not to do!
The evidence established that both parties used corporate assets for personal use; however, Wallace abused these assets while in control of Technical Tubular after the termination of the community property regime (April 19, 1994) and until Cloradean was appointed receiver on March 3, 1995. Wallace’s abuse of the assets was the reason for which she filed to be appointed receiver.
Wallace was ordered not to dispose of any property of Technical Tubular, Inc. Instead of following the court’s order, he did the polar opposite. He maneuvered the employees and customers of Technical Tubular into Tube-Tech, leaving Technical Tubular with only the debts. Within approximately three (3) months, Cloradean was forced to bankrupt Technical Tubular.
In following the ruling of Queenan, this court finds that Cloradean and Wallace own a one-half (½) interest each of the value of the stock in Tube-Tech as it is a substitute corporation for Technical Tubular due to Wallace’s action in taking all of the customers and employees of Technical Tubular and placing them in Tube-Tech as a Indirect violation of the court order of the 19th Judicial District Court enjoining Wallace “from disposing of any property of Technical Tubular Inspection Services, Inc., or from changing the status of the affairs of Technical Tubular Inspection Services, Inc. to the injury of mover.”

The parties stipulated that the value of Tube-Tech, the new corporation, on the date of trial was $800,000. The trial court awarded Cloradean the sum of $400,000. Wallace appeals asserting numerous assignments of error. We affirm the judgment of the trial court.

LAW AND DISCUSSION

The trial court relied on this court’s case of Queenan v. Queenan, 492 So.2d 902 (La.App. 3 Cir.), writ denied, 496 So.2d 1045 (La.1986). In Queenan, Michael and Penny Queenan owned stock in three closely held corporations which were begun during their marriage. After the termination of the community, Michael continued to manage the companies. He then formed a new corporation in which he was the sole stockholder. Michael operated the new corporation out of the same office along with the family businesses. By comparing the book value of the two corporations, it was apparent the new corporation, owned solely by Michael, flourished and prospered at the expense of the family owned business. This court concluded Michael, as the spouse in control of the former community asset, “breached the fiduciary obligations owed Penny Queenan ... under the partnership and corporate laws of the State of Louisiana.” Queenan, 492 So.2d at 911. In order to determine the amount owed to Penny, the court characterized the corporation, though technically Michael’s separate property, as part of the community and therefore subject to partition. This court articulated the responsibility of the spouse in control of former community property, as follows:

[Fjollowing the judicial termination of a community regime and before a property settlement of the community assets has been consummated, a former spouse having control and possession of any assets belonging |4to the community regime would owe a fiduciary obligation to the former spouse who is not in control or possession.
Until there is a community property settlement, there exists a practical or empirical extention of the community regime insofar as the duties and obligations of the former spouses relate to each other in the management of the community assets. The parties are not only co-owners but are the beneficiaries as well as obligors of a technical or legal extention of the community regime until settlement thereof, thus acquiring a peculiar relationship as a specie of partners, co-owners, and as in the case sub judice co-owners of shares of stock and/or common owners of shares of stock in a family owned corporation or corporations. The relationship of spouses and former spouses (until there has been a property settlement following termination of the community regime) cuts through the entirety of the law, including the laws of partnership, property, and corporations.

Id. at 912.

The Queenan court characterized the parties’ legal relationship as “not only co-owners but ... beneficiaries as well as obligors of a technical or legal extention of the community regime until settlement.” Id. at 912. Wallace contends Queenan is an anomaly in the law and its holding has been criticized by legal scholars. However, the underlying rationale in Queenan for imposing a fiduciary duty on a spouse having control of the former community asset is based on a recognition that after the termination of the community the spouse in control will not necessarily act in the best interest of the other party. This rationale is still valid and rather than being discredited, the legislature in 1995, changed the law to impose a higher standard of care on the spouse in control of the former community than had previously been required. This change in the law is an affirmation rather than a repudiation of the Queenan decision.

Louisiana Civil Code Article 2369.3 clearly defines the duty of the spouse in control of the former community asset and provides, in relevant part:

LA spouse has a duty to preserve and to manage prudently former community property under his control, including a former community enterprise, in a manner consistent with the mode of use of that property immediately prior to termination of the community regime. He is answerable for any damage caused by his fault, default or neglect.

Comment (a) under this statute explains:

This Article changes the law. First, it imposes on a spouse who has control of former community property an affirmative duty to “preserve and to manage” such property. In contrast, Civil Code Article 800 (rev.1990), applicable to ordinary co-owners, provides for a right but not a duty to act for the preservation of the property. Such a duty arises only if the co-owner undertakes to act as a negotiorum gestor or he is appointed administrator. See Symeonides & Martin, The New Law of Co-ownership: A Kommentar, 68 Tul. L.Rev. 701, 746 (1993). Similarly, the co-ownership articles of the Civil Code do not impose on one co-owner an affirmative duty to manage the co-owned thing unless that owner assumed the qualities of a gestor or was appointed as an administrator. See C.C. Arts. 801, 803 (rev.1990); Symeonides & Martin, supra at 738-748. Second this Article imposes a higher standard of care than that provided by Civil Code Article 799 (rev.1990) for ordinary co-owners. See comment (g), infra.
This Article also imposes a higher standard of care in managing and maintaining such former community property than the standard imposed during the marriage for managing com munity property. See C.C. Art. 235k (rev.1979). The reason for imposing a higher standard of care in managing former community property is that, after termination of the community property regime, the law no longer assumes that a spouse who has former community property under his control will act in the best interest of both spouses in managing it. (Emphasis added).

Louisiana Civil Code Article 159 provides the “judgment of divorce terminates a community property regime retroactively to the date of filing of the petition in the action in which the judgment of divorce is rendered.” Cloradean filed the petition for divorce in April 1994. Therefore, the couple’s community property regime terminated on that date. See Hatsfelt v. Hatsfelt, 05-0947 (La.App. 3 Cir. 2/1/06), 922 So.2d 732. Wallace was in control of Technical Tubular from this date until March 1995. We have reviewed the testimony and documents presented by both parties and find no error in the finding of the trial court that Wallace allowed Technical Tubular pto decline in value in the interim period between the petition for divorce and the final divorce decree. He essentially admitted such in his testimony. Wallace testified he stopped working the business. “[I] didn’t work for the last five or six months with that company. I just stayed home just like she did.” No one was running Technical Tubular, but the monthly corporate overhead of $36,000 continued to accumulate. Wallace still collected his salary and used funds in the corporate account and began “factoring” company invoices to pay for his personal expenses. When Cloradean obtained control of the company in March 1995, the accounts receivable were down to $5,000 and the debts exceeded $200,000. Just days after the divorce was final, Wallace began Tube-Tech, an identical company with the same employees and customers as the old business. While Wallace’s income never suffered, Cloradean was left with a worthless company. Wallace focused his energy and skill on the new company, which he solely owned, and allowed Technical Tubular to decline.

The trial court found Cloradean’s testimony more credible than Wallace’s. We find no error in this assessment by the trial court. Once the petition for divorce was filed, Wallace began planning the new company and began to lure employees and customers to the new business. Although Wallace testified after the divorce he was left destitute with nothing but a “few old tools,” Wallace’s actions as well as the financial evidence introduced by Cloradean contradicted his testimony. Wallace incorporated Tube-Tech just days after Clora-dean was appointed receiver of Technical Tubular. Interestingly, Tube-Tech was not incorporated in Wallace’s name, it was incorporated in his friend, Paul Diaz’s name. Wallace explained the company was set up in Diaz’s name because Diaz loaned him money for start-up costs. Six months after the divorce, Diaz was paid in full although transfer of the company into Wallace’s name did not take place until two years later. Wallace denied any attempt 17at deception. Wallace admitted he acquired all of the former employees of Technical Tubular and employed them in the same capacity as the old corporation. Likewise, Wallace testified he was calling on the same customers with his new corporation. The employees continued to report everyday to the same location of the former corporation because Tube-Tech was located in virtually the same location as Technical Tubular. The testimony supports a finding that Wallace allowed Technical Tubular to decline to the detriment of Cloradean.

Cloradean testified Wallace completely surprised her when he walked away from the business: “I didn’t know where I was going with that because I had not expected Wallace to just bail out.” In an attempt to prevent the total decline of the business, Cloradean petitioned to be appointed receiver. Although she acquired control at the time of the judgment of divorce, the employees were gone, the customers were gone, and she was left with nothing but debts. It took her sixty days to determine the financial condition of the company. She found unpaid bills and taxes which were months behind. “And once it was all said and done, Technical Tubular was in debt of over $200,000 — something, including the IRS and all kinds of notes payable.” She discovered “Wallace went out and bought a Corvette that Technical Tubular paid for, but he made sure that the truck — the car was put under his name personally, but the company paid the debt.” By March 1995, Cloradean stated, “there was nothing to run. There was nothing left to run.... I got a company that was knee deep in debt. I had no money to operate with. Private Capital was taking just about everything that was coming in. There was virtually nothing left to pay the debts ... And I had to start selling assets to be able to start taking care of the debts that he incurred, not I.” She discovered Wallace had gone through all the corporate money, “paying all his expenses, not paying payroll taxes, not taking care | sof the debts of the corporation .... I knew I was going to be liable for the IRS. You can’t get away from the taxes.” In June 1995, Cloradean reluctantly filed for bankruptcy. We find the evidence supports a finding that Wallace allowed a thriving corporation, built over the course of fourteen years, to fail to the detriment of his former spouse.

Wallace contends the trial court erred in using the value of Tube-Tech to determine the amount owed to Cloradean. He asserts Tube-Tech was his separate property and the value of Technical Tubular at the time of trial should have been used by the trial court. As stated by the trial court, the value of Technical Tubular at the time of trial was zero. Cloradean had already placed the company in bankruptcy and all available funds were used to pay off debts incurred by Wallace during the interim period prior to divorce. In allocating community funds, the trial court is given broad discretion and is not “frozen by any statutory time level or particular valuation at any particular time or for any particular purpose,” but is charged with placing “values on the assets for the purposes of accounting, allocation, and adjudication in accordance with the further provisions of R.S. 9:2801(4)(b, c, d and e).” Queenan, 492 So.2d at 914. The assets of Technical Tubular during the last full year of the community and the stipulated value of the new company, Tube-Tech, were approximately the same value. We find no error in the decision of the trial court awarding Cloradean one-half of the value of Tube-Tech as her share in the community owned business.

Derivative Action

Wallace characterized Cloradean as a “shareholder” and contends the trial court “ignore[d] corporate formalities and allowed a shareholder to bring a corporate claim other than through a derivative action.” This is a suit to partition community property. Technical Tubular was, for all practical purposes, a community owned | ^corporation; the corporation’s only shareholders were Wallace and Cloradean. We find no merit in this argument.

Abandonment

Wallace contends Cloradean’s claim for partition of the community owned company has been abandoned. We disagree. Cloradean filed a petition for divorce in April 1994 and petitioned to have the community property divided. In November 1995, the trial court rendered a partial judgment of partition dividing the community property except the parties’ interest in Technical Tubular. The order stated “that the only other community asset, Technical Tubular, Inc., and its holdings shall be partitioned at a later date.” Prior to this order, Cloradean was appointed receiver of Technical Tubular and filed for bankruptcy. In August 1999, when the bankruptcy proceedings were complete, Cloradean filed a motion to fix the partition for trial. The trial court found the “actions of Wallace in continuing to litigate this matter subsequent to any tolling of the period necessary for abandonment is a waiver of his right to now seek abandonment of Cloradean’s claim.” We agree with the trial court that Cloradean did not lose her right to partition her interest in Technical Tubular. A co-owner’s right to partition a thing held in common is an incident of ownership and is absolute. La. Civ.Code art. 807; Harris v. Harris, 29,084 (La.App. 2 Cir. 1/22/97), 687 So.2d 673. We find no merit to this argument.

DECREE

Based on the foregoing review of the record, we affirm the decision of the trial court. All costs of this appeal are assessed against Wallace Anthony Granger.

AFFIRMED.

GENOVESE, J., concurs in part, dissents in part, and assigns written reasons.

GENOVESE, J.,

concurring in part and dissenting in part.

hi concur in part and dissent in part in the majority opinion. I agree and concur that, upon their separation and post divorce, Mr. Granger had a fiduciary duty as the spouse in control of a former community asset to act as a prudent administrator and is answerable for damages caused by his fault or neglect. However, I disagree and dissent from the majority opinion as to the amount ($400,000.00) awarded to Ms. Granger. I strongly disagree with the trial court’s valuation of damages awarded to Ms. Granger. The trial court simply labeled the new corporation a “substitute corporation” and awarded Ms. Granger one-half of its book value at the time of trial.

As Mr. Granger did little or nothing after them separation to preserve and protect the former community corporation, Ms. Granger did absolutely nothing for eleven years (from 1995 to the 2006 trial date) in the new (substitute) and separate corporation. In the former community corporation, Ms. Granger was an active participant. While Mr. Granger solicited business for the former community corporation, Ms. Granger managed the office, paid the bills, and handled payroll. Together, they worked hard to make the former community corporation a success. They were a team. The record indicates that both were responsible for the growth and prosperity of the former community corporation during the fourteen years of their marriage.

12Such was not the case in the “substitute” corporation. Ms. Granger did nothing.' Mr. Granger started the new corporation (separate property) after the divorce. Certainly, he used and had the benefit of the former community corporation to further his agenda for which he is accountable to Ms. Granger. However, based on the record, there is no legal or other authority for simply awarding Ms. Granger the full book value of the substitute corporation some eleven years down the road. Most pertinent is the fact that the former corporation and the new corporation are not one and the same and cannot be deemed identical insofar as they performed dif ferent operations and services. The former community corporation’s business was pipe inspections. The new corporation does pipe inspections; however, a majority of its business is other services. That is not factored into Ms. Granger’s award. Mr. Granger gets no credit for the enhancement and expansion of the business.

Had there been no matrimonial strife and discord, and had they continued down the primrose path with the former community corporation, Mr. Granger would have had the benefit of Ms. Granger’s hard work as a manager of said corporation for over eleven years. Instead, Mr. Granger was without her services and involvement and still has to pay the full fifty percent book value of the new corporation without credit for enhancement and expansion of the business. What if Mr. Granger would have simply walked away from the business and sought employment elsewhere in April of 1994 when Ms. Granger filed for divorce? What if the new (substitute) corporation had only a $200,000.00 book value? Would Ms. Granger only be entitled to fifty percent of that figure? What if, despite Mr. Granger’s efforts, the new corporation became insolvent after or during the eleven years of operation? Would Ms. Granger get nothing?

Though I agree that Ms. Granger is entitled to an award for Mr. Granger’s fault Rand neglect vis-a-vis the former community corporation, I find that neither the record nor the law supports the trial court’s arbitrary $400,000.00 award in favor of Ms. Granger and would reduce same.

For the foregoing reasons, I concur in part and dissent in part in the majority opinion in this case.

      . The effective date of La.Civ.Code art. 2369.3 is after the date of the filing of the petition in the present appeal.


author: BROWN, C.J.

text:
    STATE of Louisiana, Appellee v. Catina Renee SMITH, Appellant.
    No. 42,466-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 26, 2007.

      Peggy J. Sullivan, Louisiana Appellate Project, Monroe, for Appellant.
    J. Schuyler Marvin, District Attorney, John M. Lawrence, Lane Pittard, Assistant District Attorneys, for Appellee.
    Before BROWN, STEWART, and LOLLEY, JJ.
   BROWN, C.J.

| iDefendant, Catina Renee Smith, originally charged with bank fraud, pled guilty to attempted bank fraud with an agreement that she would not be charged as a multiple offender. She was sentenced to two and one-half years at hard labor. A timely pro se motion to reconsider was denied, as well as a similar motion filed by defense counsel. Defendant has appealed her sentence as excessive. Finding no error, however, we affirm.

Facts

After his checkbook was stolen, David Culligan closed his checking account with Hibernia National Bank. Thereafter, Bossier Federal Credit Union (“BFCU”) cashed checks on the Hibernia account resulting in a loss of $2,350.

There is practically no information in this record to show the extent of defendant’s involvement with this offense. The prosecutor simply restated the statute in his recitation of facts, and the trial court offered nothing further. The PSI provides the only information and states that a Bossier City Detective interviewed Barbara Taylor, who had endorsed two of the checks. Taylor stated that she obtained the checks from Demetrius Johnson. One of the checks, in the amount of $475, was endorsed by Taylor and also endorsed by defendant, Catina Smith. Defendant’s fingerprint was found on this check. Defendant claimed that she had nothing to do with the checks in question.

Defendant was arrested and charged with bank fraud. She entered a guilty plea to attempted bank fraud in exchange for the state’s agreement not to file a habitual offender bill of information. The trial court sentenced |2defendant to two and one-half years at hard labor. On appeal, defendant asserts that the imposed sentence is excessive.

Discussion

La. R.S. 14:71.1 provides:

(A) Whoever knowingly executes, or attempts to execute, a scheme or artifice to do any of the following shall be imprisoned, with or without hard labor, for not more than ten years, or may be fined not more than ten years, or may be fined not more than one hundred thousand dollars, or both:
(1) To defraud a financial institution.
(2) To obtain any of the monies, funds, credits, assets, securities, or other property owned by or under the custody or control of a financial institution by means of false or fraudulent pretenses, practices, transactions, representations, or promises. (Emphasis added).

In pleading to an attempt to execute a scheme to defraud the BFCU, defendant in actuality pled guilty to bank fraud with an agreement to a cap of one-half of the maximum sentence.

The trial court emphasized that defendant’s prior convictions for possession of cocaine, possession of marijuana, and aggravated battery were considered in determining the appropriate sentence. Additionally, the trial judge noted the benefit that defendant received by the reduction in sentencing exposure. The court did not address other factors as set forth in La. C. Cr. P. art. 894.1(C).

Defendant argues that because others allegedly involved in this offense received probated terms, her sentence is excessive; We note that there is nothing in this record concerning these other people. Defendant was the only offender listed on the bill of information. There is no 1 ^requirement, however, that co-defendants be treated equally by a sentencing judge. State v. Rogers, 405 So.2d 829 (La.1981); State v. Nugent, 41,070 (La.App. 2d Cir.08/23/06), 938 So.2d 1188; State v. Taylor, 485 So.2d 117 (La.App. 2d Cir.1986). A reviewing court may consider disparity of sentences between co-defendants when there is no reasonable basis in the record for the disparity. State v. Quimby, 419 So.2d 951 (La.1982); State v. Nugent, supra. Again, there is no information concerning this alleged disparity in this record.

After considering defendant’s criminal history, the fact that the offense was committed while defendant was already serving a probated sentence, and the benefit that defendant received as a result of the plea agreement, there is no showing that the trial judge erred in imposing this two and one-half year sentence, which is only one-fourth of the sentence that could have been imposed under La. R.S. 14:71.1 and less than the agreed-to cap. This lower-range sentence for defendant, who is in actuality a third felony offender, is neither grossly disproportionate to the severity of the offense nor is it shocking to our sense of justice. See State v. Smith, 01-2574 (La.01/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980).

Conclusion

For the reasons set forth above, defendant’s sentence is AFFIRMED.


author: DECUIR, Judge.

text:
    Matthew MARTIN v. MICHAEL J. NEUSTROM as Duly Elected Sheriff of the Parish of Lafayette.
    No. CA 07-112.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 3, 2007.

      Stephen J. Oats, Kenneth M. Henke, Robin L. Jones, Oats & Hudson, Lafayette, LA, for Defendant/Appellee, Michael J. Neustrom, Lafayette Parish Sheriff.
    L. Clayton Burgess, Brenda B. Maturin, Attorneys at Law, Lafayette, LA, for Plaintifi/Appellant, Matthew Martin.
    Court composed of SYLVIA R. COOKS, OSWALD A. DECUIR, and BILLY HOWARD EZELL, Judges.
   DECUIR, Judge.

| plaintiff appeals a judgment of the trial court dismissing his claim for false arrest against the Lafayette Parish Sheriff.

FACTS

At approximately 11:30 a.m. on February 19, 2003, Michelle Boutte, a 911 operator for Lafayette Parish, received an anonymous phone call stating that there was a bomb at the Lafayette Parish Correctional Center. The 911 computers indicated that the call originated from an active cell phone with the number (337) 212-1066. Boutte immediately returned the call and got a message which Matthew Martin acknowledged receiving on his cell phone. She left a message and indicated that the original caller should return the call at a designated number. Matthew’s mother, Cheryl, returned the call from her land line and reported that everything was fine.

Toni Bodoin, the 911 supervisor, called Cheryl’s land line. During the conversation, Cheryl lied about the previous call and was reluctant to give her address. Meanwhile, the bomb threat was relayed to the fire and sheriffs departments. Fireman, Kurt Bourg, called the cell phone number at 11:46 a.m. Matthew answered and identified himself and gave his address. Bourg told Matthew that someone would see him shortly. Detectives Jules Broussard and Josh Kaplan were dispatched.

When the detectives arrived, Cheryl was outside in her truck and at first refused to talk to them. She then told two different lies about where Matthew was. After informing her that they had talked to Matthew on the phone, they knocked on the door and Matthew answered. Matthew was taken to the Sheriffs office for questioning by Detective Stelly. Based on the information described above, Detective Stelly, determined that there was probable cause and placed Matthew under arrest. | ¿A subsequent search of Matthew’s home pursuant to a warrant, elicited the phone from which Matthew admitted deleting all incoming and outgoing calls.

Ultimately, the charges against Mathew were dismissed by the district attorney. Matthew filed this suit against the Sheriff of Lafayette Parish seeking damages for false arrest. At the close of the bench trial on the matter, the court concluded that the deputies had probable cause to arrest Matthew and dismissed his claim with prejudice. Matthew lodged this appeal.

DISCUSSION

Matthew’s lone assignment of error alleges that the trial court erred in finding that the deputies had probable cause to make the arrest and in dismissing his claim.

To establish a false arrest claim, the plaintiff must prove that the arrest was unlawful and that the unlawful arrest resulted in injury. Saucier v. Players Lake Charles, L.L.C., 99-1196 (La.App. 3 Cir. 12/22/99), 751 So.2d 312, 316. In order to recover on a false arrest claim, the claimant must prove he was unlawfully detained by the police. Zerbe v. Town of Carencro, 04-422 (La.App. 3 Cir. 10/6/04), 884 So.2d 1224, writs denied, 04-2719, 04-2735 (La.1/14/05), 889 So.2d 270, 271. To determine if an arrest is unlawful, the court must determine whether the deputies executing the arrest had probable cause. Id. 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. Gibson v. State of Louisiana, 99-1730 (La.4/11/00), 758 So.2d 782, 788, cert. denied, 531 U.S. 1052, 121 S.Ct. 656, 148 L.Ed.2d 559 (2000). The facts need not eliminate all possible innocent explanations in order to support a finding of probable cause. State v. Ceaser, 02-3021 (La.10/21/03), 859 So.2d 639.

1 Jn the present case, the evidence shows that the deputies had probable cause to arrest Matthew Martin. The deputies learned from the 911 operator that cell phone number 212-1066 was used to make a bomb threat, and they learned from firefighter, Kurt Bourg, that moments after the threat Matthew Martin answered a call to that cell phone number, identified himself and gave his address. Moreover, when the deputies arrived at the scene, Matthew’s mother first refused to speak to them and then lied about Matthew being present at the home. Under these facts and circumstances, we find no error in the trial court’s determination that the deputies had probable cause to arrest Matthew Martin. Accordingly, the arrest was lawful and the trial court properly dismissed Martin’s claim.

DECREE

For the foregoing reasons the judgment of the trial court is affirmed. All costs of these proceedings are taxed to appellant, Matthew Martin.

AFFIRMED.


author: PETERS, J.

text:
    Goldie JACK v. PRAIRIE CAJUN SEAFOOD WHOLESALE.
    No. 07-0102.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 3, 2007.
    Rehearing Denied Nov. 21, 2007.

      Goldie Jack, Lake Charles, LA, In Proper Person.
    Mark Ackal, Lafayette, LA, for Defendant/Appellee, Prairie Cajun Seafood Wholesale.
    Court composed of JIMMIE C. PETERS, GLENN B. GREMILLION, and J. DAVID PAINTER, Judges.
   PETERS, J.

Lin this workers’ compensation action, the plaintiff, Goldie Jack, appeals the grant of a directed verdict dismissing her claim for benefits against her former employer, Prairie Cajun Seafood Wholesale (Prairie Cajun). For the following reasons, we affirm the judgment in all respects.

In her Disputed Claim For Compensation filed on June 24, 2004, Ms. Jack asserted that she sustained an injury while working at Prairie Cajun’s crawfish peeling plant in Evangeline Parish, Louisiana. Specifically, she asserted in her pleadings that she “jerked [her] body” when she slipped on water on the floor of the work area.

At the October 24, 2006 trial, Ms. Jack testified, called two witnesses, and introduced five exhibits to support her claim. After Ms. Jack completed the presentation of her evidence, the workers’ compensation judge (WCJ) granted Prairie Cajun’s motion for directed verdict and dismissed Ms. Jack’s claim. In doing so, the WCJ noted that the accident was unwitnessed and that the medical evidence presented by Ms. Jack did not support her position. Thereafter, Ms. Jack perfected this appeal.

OPINION

Although she had legal counsel when she filed her claim, Ms. Jack represented herself at trial and continues to do so on appeal. Her lack of legal training is evident in her expression of complaints on appeal, and this court has attempted to formulate those complaints into what we understand her arguments to be. We will address all of her arguments as we understand them, but not necessarily in the order raised in her appellate brief.

Ms. Jack began working for Prairie Cajun as a crawfish peeler on March 4, 2004, and was paid at the rate of $1.50 per pound of crawfish peeled. Each crawfish | ¿peeling station had a bowl of water/iodine mixture available for the peeler to rinse his or her hands while working. The bowl had to be refilled from thne-to-time from a larger container located at the end of the crawfish peeling table. The accident at issue is alleged to have occurred while Ms. Jack was refilling her bowl.

According to Ms. Jack, on April 27, 2004 (not April 22, 2004 as asserted in her pleadings), she slipped twice while returning to her work station with a refilled bowl. She testified that she sustained no injury the first time, but in the second incident she felt a pulling in the back of her leg, in her left knee, in the lower part of her back, and in her neck. She testified that the two incidents occurred approximately one-half hour apart, and that she did not fall to the floor in either incident. Ms. Jack claims to have sought medical attention on April 27, 2004. She further testified that April 28, 2004, was her last day of employment. She claims that she has been unable to work since that day due to her injuries.

When questioned by Prairie Cajun’s counsel concerning the dynamics of the second incident, Ms. Jack could not remember whether she dropped the bowl of water when she slipped, whether it remained in her hands, or whether the water spilled out of the bowl. Additionally, she claimed that a co-worker named Betty observed the incident and commented to her that “[g]irl, I know you hurt yourself.” However, Ms. Jack testified that she did not call Betty to testify because she and Betty had a subsequent disagreement.

Concerning the date of the accident, Ms. Jack testified on cross-examination that it occurred on April 22, 2004, not April 27 as she had previously testified. She continued to assert that she first sought medical care on April 27, 2004, when she presented herself to the Ville Platte Medical Center Emergency Room. She testified pthat she has seen numerous doctors since the accident, and she introduced various medical records in support of this assertion.

Prairie Cajun introduced medical records which reflected that Ms. Jack did go to the Ville Platte Medical Center Emergency Room on April 27, 2004, but not before seeing her family physician, Dr. Charles Fontenot, a Ville Platte general practitioner. According to Dr. Fontenot’s records, her complaints were not of having sustained an accident, but of headaches, vomiting, sinus difficulties, left leg pain, sore throat, and sneezing. The other medical records introduced by Prairie Cajun established that Ms. Jack has had a history of neck problems beginning in December of 1994. Ms. Jack asserted that the medical records were not accurate, but did acknowledge on cross-examination that she began receiving monthly disability benefits from Social Security in 1993 while working cash jobs peeling crawfish and farming-sweet potatoes. She also acknowledged that she had been involved in automobile accidents in the late 1990’s and in 2002, that she had asserted an earlier workers’ compensation claim for a wrist and neck injury, and that she had been involved in multiple lawsuits.

The testimony of Ms. Jack’s two other witnesses did not address the specifics of the accident or her current medical condition. Leola Rideau testified that Ms. Jack worked for her during 2002 and 2003, and during that time did not appear to have any injuries to her neck or back. Additionally, John Rideau testified that he helped move Ms. Jack and her mother from Lake Charles, Louisiana, to Ville Platte sometime in December of 2003. This testimony related to the accuracy of a medical record which will be discussed later in this opinion.

| ^Argument Concerning Particulars of the Accident

In one of her arguments, Ms. Jack complains about Prairie Cajun’s legal counsel asking her why she did not call other employees who may have seen the accident to testify on her behalf. Without acknowledging her testimony concerning Betty’s observance of the accident, she states in brief that she could not think of a witness who observed her “limping” on that day. Her argument is apparently that it was unfair for opposing counsel to question the lack of support for her accident, and that the WCJ erroneously relied on that lack of corroboration. We conclude that Ms. Jack is arguing error on the part of the WCJ in rejecting her claim based on lack of evidence. We disagree with this assertion.

Louisiana Revised Statute 23:1021(1) defines an accident as “an unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration.” An employee in a workers’ compensation action must prove a work-related accident by a preponderance of the evidence. Bruno v. Harbert Int’l Inc., 593 So.2d 357 (La.1992). The employee’s testimony alone may be sufficient to discharge this burden, provided that (1) no other evidence discredits or casts serious doubt upon the employee’s version of the incident and (2) the employee’s testimony is corroborated by the circumstances following the alleged incident. Id. In determining whether the employee has discharged his burden of proof, the workers’ compensation judge should accept as true a witness’s uncontradicted testimony, even though the witness is a party, absent circumstances that cast suspicion on the reliability of that testimony. Id. Further, the workers’ compensation judge’s determinations on | ¿¡whether the employee’s testimony was credible and on whether the employee met his burden of proof are factual findings not to be disturbed on appeal absent manifest error. Id. Disability can be proven by both medical and lay testimony, and the workers’ compensation judge must weigh all of the evidence in order to determine whether the employee has met his burden of proof of this element. Bailey v. Smelser Oil & Gas, Inc., 620 So.2d 277 (La.1993). This also is a factual determination which is subject to a manifest error analysis. Id.

In this matter, Ms. Jack’s testimony concerning the specifics of the accident was not contradicted by any eyewitness testimony. However, other evidence cast serious doubts on Ms. Jack’s credibility, and the circumstances following the alleged accident did not corroborate her assertions of fact with regard to the accident or her medical treatment.

In granting the directed verdict, the WCJ acknowledged the status of the law as cited above, but concluded that Ms. Jack had not carried her burden of proof. We find no manifest error in the WCJ’s factual findings. Thus, we find no merit in this particular argument.

Argument Concerning Effect of Prior Payments by Prairie Cajun

Prairie Cajun paid Ms. Jack weekly compensation benefits from April 22, 2004, through October 15, 2004. Ms. Jack points out that in its pretrial statement, Prairie Cajun asserted that she did not receive an injury on April ¾ 2004-. Her argument in this regard seems to be that Prairie Cajun cannot decide which day the accident occurred and, therefore, should not be allowed to argue that she was not injured on April 22, 2004.

IflWe find no merit in this argument. As previously discussed, Ms. Jack had difficulties with the dates in her testimony at trial, and it is clear from the record that the argument is over one accident only. That is to say, the date of the alleged accident was not a disputed issue in this case.

Argument Concerning Accuracy of Certain Medical Records

Medical records were introduced establishing that Ms. Jack was admitted to the Eunice Community Medical Center Emergency Room on May 21, 2005, complaining of injuries sustained in a fall the year before. The specific notation found in the record quoted Ms. Jack as saying, “i FELL IN CAJUN COUNTRY FLEA MARKET AND GROCERY STORE lYR AGO, AND I BEEN HURT’N EVER since.” When questioned at trial concerning whether she made this statement, Ms. Jack testified, “I might have. I done forgot what I told them people. I forgot.” However, on appeal, she asserts that she never fell in that particular grocery store, “or any other store in my life.” In other words, she asserts that the medical records are inaccurate.

The trial record also contains the December 8, 2003 medical records from the Ville Platte Medical Center, wherein Ms. Jack expressed complaints of pain in the neck associated with a history of problems with the discs in her neck. Ms. Jack questioned the accuracy of this record as well. According to Ms. Jack, she was not in Ville Platte on December 8. Instead, she asserted that she was in Lake Charles, in the process of moving her mother from the Chateau du Lac Apartments in Lake Charles to Ville Platte. In support of her assertion, Ms. Jack introduced a tenant ledger card, showing that her mother’s move-out date from the Chateau du Lac Apartments was December 8, 2003. Ms. Jack stated that she was living with her mother in Lake Charles at that time. John Rideau testified that he helped her and her 17mother move from Lake Charles to Ville Platte, and that they left Lake Charles at 7:00 or 8:00 p.m., but that he did not remember the date that they moved.

With regard to her belief in the medical records, the WCJ stated

[F]or me to completely believe you I would have to believe that each and every one of these medical records are wrong except the ones that you’ve presented. And while I am completely willing to accept that doctors and hospitals make mistakes, I am not willing to accept that they did so this many times.

We find no manifest error in the WCJ’s factual conclusions with regard to the credibility of the medical records versus that of Ms. Jack. Therefore, we find no merit in this argument.

DISPOSITION

For the foregoing reasons, we affirm the judgment of the workers’ compensation judge dismissing Goldie Jack’s claim for workers’ compensation benefits against her former employer, Prairie Cajun Seafood Wholesale. We assess all costs of this appeal to Goldie Jack.

AFFIRMED.

      . When judgment is rendered against a party who has been allowed to litigate without the payment of costs, the party “shall be condemned to pay the costs incurred by him ... and those recoverable by the adverse party.” La.Code. Civ.P. art. 5188.


author: GENOVESE, Judge.

text:
    Michael W. TRAHAN v. CITY OF CROWLEY.
    No. 07-266.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 3, 2007.
    Rehearing Denied Nov. 21, 2007.

      Michael B. Miller, Crowley, Louisiana, for Plaintiff/Appellant, Michael W. Trahan.
    Christopher R. Philipp, Lafayette, Louisiana, for Defendant/Appellee, City of Crowley.
    Court composed of JOHN D. SAUNDERS, ELIZABETH A. PICKETT, and JAMES T. Genovese, Judges.
   GENOVESE, Judge.

Lin this workers’ compensation case, claimant is appealing the judgment granting the employer’s exception of prescription relative to his claims for penalties and attorney fees. The employer has answered this appeal, seeking a reversal of the award of permanent and total disability. For the following reasons, we affirm in part, reverse in part, and render.

FACTS

On November 15, 1993, the claimant/employee, Michael Trahan (Trahan), injured his back in the course and scope of his employment with the City of Crowley (City). The City paid Trahan temporary total disability benefits (TTD) beginning November 17, 1993 at a rate of $171.75 per week based upon an average weekly wage (AWW) of $257.73. Trahan’s TTD benefits were relegated to supplemental earnings benefits (SEB) on May 25, 1994 at a rate of $744.25 per month. On October 27, 1997, SEB was reduced to $266.34 per month as result of a job offer extended by the City. Thereafter, on April 27, 1998, Trahan’s benefits were increased to $369.39 per month, which is the amount he was receiving at trial.

Contending that he had been underpaid compensation benefits, Trahan filed a Disputed Claim for Compensation (Form 1008) on December 16, 2002, asserting that on November 15, 1993 he slipped and fell, injuring his back while working for the City. Trahan also sought penalties and attorney fees. The City answered, generally 12denying the allegations set forth by Tra-han, including the occurrence of a work-related accident, the nature and extent of Trahan’s disability, and the amount of workers’ compensation benefits to which he was entitled. The City also filed an exception, asserting that Trahan’s claims for penalties and attorney fees had prescribed.

Following the trial on August 11, 2005, the workers’ compensation judge (WCJ) found that the City improperly calculated Trahan’s AWW by failing to include certain fringe benefits in its computation. The WCJ ruled that the correct calculation yielded an AWW of $205.63. On the issue of the reduction in SEB, the WCJ found that the reduction implemented as a result of the job offer was improper since the part-time job did not constitute a suitable job, and the offer of employment was not in keeping with the dictates of Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La.7/1/97), 696 So.2d 551. The WCJ also ruled in favor of Trahan and awarded him permanent and total disability benefits as a result of the November 15, 1993 accident. Lastly, the WCJ granted the City’s exception of prescription, ruling that Trahan’s claims for penalties and attorney fees had prescribed. For the reasons that follow, we affirm in part, reverse in part, and render.

ISSUES

The issue presented by Trahan for our review is whether the WCJ committed legal error in finding that Trahan’s claims for penalties and attorney fees had prescribed. The issue presented by the City for our review in its answer to this appeal is whether the WCJ erred in awarding; Trahan disability benefits.

\,LAW AND DISCUSSION

Prescription

In response to Trahan’s claims for penalties and attorney fees, the City filed an exception of prescription, asserting that any actions by the City occurring prior to December 16, 2001, allegedly warranting the imposition of penalties and attorney fees, had prescribed. The WCJ agreed and granted the exception of prescription. We reverse and render.

Standard of Review

In general, an appellate court is to review factual findings issued in workers’ compensation matters according to the manifest error-clearly wrong standard of review. However, when there are errors of law asserted on appeal, the appellate court must make a determination of whether the workers’ compensation judge’s ruling was legally correct. Metoyer v. Roy O. Martin, Inc., 03-1540 (La.App. 3 Cir. 12/1/04), 895 So.2d 552, writ denied, 05-1027 (La.6/3/05), 903 So.2d 467; McClain v. Pinecrest Dev. Cir., 00-1622 (La.App. 3 Cir. 2/28/01), 779 So.2d 1112; Miller v. Blacktype Farms, 06-1202 (La.App. 3 Cir. 3/7/07), 952 So.2d 867. The issue of prescription presented by Trahan on appeal involves a question of law. Therefore, we must determine whether the WCJ was legally correct in granting the City’s exception of prescription.

In granting the City’s exception of prescription, the WCJ relied on the first circuit decision of Craig v. Bantek West, Inc., 03-2757 (La.App. 1 Cir. 9/17/04), 885 So.2d 1234, writ denied, 04-2995 (La.3/18/05), 896 So.2d 1004, which held that the one-year prescriptive period set forth in La. Civ.Code art. 3492 applied to a penalties and attorney fees claim under the provisions of the workers’ compensation act.

| ¿However, when subsequently presented with the same issue, this court, in Rave v. Wampold Companies, 06-978 (La.App. 3 Cir. 12/6/06), 944 So.2d 847, reached a different result. This court held in Rave that “[i]t is clear from a reading of the jurisprudence that when claims for penalties and attorney fees accompany the claims for benefits, if the underlying claims have not prescribed, neither have the claims for attorney fees and penalties.” Id. at 855.

In the instant matter, Trahan asserts that he is entitled to penalties and attorney fees based upon certain actions on the part of the City. It was not argued before the WCJ, nor is it asserted on appeal, that Trahan’s underlying claims have prescribed. Rather, the narrow issue before this court is whether or not the resultant claims for penalties and attorney fees have prescribed. We find Rave to be controlling. Accordingly, we reverse the WCJ’s grant of the City’s exception of prescription, and we will now consider the merits of Trahan’s claims for penalties and attorney fees.

Penalties and Attorney Fees

Trahan contends that various actions on the part of the City warrant the imposition of penalties and attorney fees pursuant to La.R.S. 23:1201. In considering the penalties and attorney fee claims, we note that La.R.S. 23:1201 has undergone revisions since the occurrence of Tra-han’s accident in 1993, and we are mindful that “[t]he law in effect at the time of the denial of benefits governs a workers’ compensation claimant’s request for penalties and attorney fees.” Mullins v. Concrete & Steel Erectors, 06-510, p. 10 (La.App. 3 Cir. 9/27/06), 940 So.2d 803, 811, writ denied, 06-2588 (La.12/15/06), 945 So.2d 698 (citing Reed v. Abshire, 05-744 (La.App. 3 Cir. 2/1/06), 921 So.2d 1224; Rivera v. M & R Cable Contractors, Inc., 04-985 (La.App. 3 Cir. 12/15/04), 896 So.2d 90; Skipper v. Acadian Oaks Hosp., 00-67 (La.App. 3 Cir. 5/3/00), 762 So.2d 122). Tra-han’s claims for penalties and attorneys fees arose from actions by the City which occurred prior to the August 15, 2003 effective date of the amendment to La.R.S. 23:1201. Under the provisions of the statute in effect at the time of the denial of Trahan’s benefits, La. R.S. 23:1201 provided that a claimant could recover 12% of unpaid benefits, or $2,000.00 per violation, whichever was greater.

Pursuant to La.R.S. 23:1201(F), penalties shall be awarded for an employer’s failure to properly pay benefits unless the claim is reasonably controverted or resulted from conduct over which the employer or insurer had no control. In order to reasonably controvert a claim, the employer must have some valid reason or evidence upon which to base its denial of benefits. Brown v. Texas-LA Cartage, Inc., 98-1063 (La.12/1/98), 721 So.2d 885; Smith v. Kinder Ret. & Rehab. Cir., 06-1480 (La.App. 3 Cir. 4/4/07), 954 So.2d 365.

Calculation of AWW

Trahan contends that he is entitled to penalties and attorney fees for the City’s improper calculation of his AWW. Given our reversal herein of the WCJ’s grant of the City’s exception of prescription, and the WCJ’s ruling in favor of Trahan on the proper calculation of the AWW, we must now decide whether the City’s improper calculation of Trahan’s AWW warrants the imposition of a penalty and an attorney fee award.

The City argued before the WCJ that La.R.S. 23:1021(10)(c), does not provide a statutory basis for the inclusion of fringe benefits in the calculation of AWW. We 1 «agree with the WCJ that “[t]hese arguments are not supported by case law.” The cases of Batiste v. Capitol Home Health, 96-799 (La.App. 3 Cir. 5/7/97), 699 So.2d 395, Cook v. Dewey Rusk Flooring, 93-1643 (La.App. 3 Cir. 8/10/94), 642 So.2d 234, writ denied, 94-2804 (La.1/13/95), 648 So.2d 1343, Daigle v. Sherwin-Williams Co., 545 So.2d 1005 (La.1989), and Bananno v. Employers Mutual Liability Insurance Co. of Wisconsin, 299 So.2d 923 (La.App. 3 Cir.1974), have all held that fringe benefits are to be included in the calculation of AWW. We find that the City did not reasonably controvert this claim. Therefore, we award Trahan a $2,000.00 penalty and will assess attorney fees for the City’s improper calculation of the AWW.

Reduction in SEB

Trahan also asserts that he is entitled to penalties and attorney fees for the City’s reduction of SEB. On this issue, the WCJ also found in favor of Trahan and ruled “that the reduction in benefits taken October 27, 1997 was not proper.” The WCJ expressly noted that the correspondence extending the offer of employment to Trahan gave “no description or information about the position being offered, no hours, except to appear by 7[:00] a.m.[,] and no indications of the wages to be paid.” The WCJ found that the offer of employment failed to meet the “minimum requirements” of Banks, 696 So.2d 551. In addition thereto, the WCJ opined that it was “questionable whether the job offer was still valid at the time the reduction began on October 27, 1997.” Based upon these factual findings of the WCJ, we find that the City did not have a reasonable basis upon which to controvert the claim. Accordingly, we award Trahan a $2,000.00 penalty and will assess attorney fees for the City’s improper reduction of SEB.

|7Permanent and Total Disability

The WCJ ruled that Trahan was permanently and totally disabled as a result of his November 1993 work accident. In its answer to this appeal, the City contends that Trahan is not entitled to permanent and total disability benefits.

Standard of Review

The WCJ’s award of permanent and total disability benefits in favor of Trahan is a factual determination which is subject to the manifest error or clearly wrong standard of review. Maricle v. Sunbelt Builders, Inc., 05-398 (La.App. 3 Cir. 11/2/05), 916 So.2d 1226, writ denied, 05-2506 (La.3/31/06), 925 So.2d 1261. Therefore, the WCJ’s determination that Trahan is permanently and totally disabled is to be given great weight and will not be overturned unless this factual determination is clearly wrong.

, In her oral reasons for judgment, the WCJ thoroughly discussed Trahan’s medical history, including mention of a prior back injury in 1979 at L4-5 requiring surgical intervention. The WCJ noted Tra-han’s treatment following the November 1993 accident with Dr. Stuart Phillips beginning February 17, 1994, and the lumbar fusion which Dr. Phillips performed at L4-5 in March of 1996. Although Dr. Phillips initially considered the surgery to be a success, his records in 1997 document that Trahan’s condition “progressively deteriorated,” and despite Trahan’s continuing complaints, Dr. Phillips did not think that he was a surgical candidate. Again referencing Dr. Phillips’ records, the WCJ noted that by 2000 Trahan was walking with the aid of a cane. And, by December 2001, Dr. Phillips was of the opinion that Trahan suffered from failed back syndrome, that he was unable to return to work, and that he was permanently and totally disabled.

| sFolIowing Dr. Phillips’s retirement, Trahan began treating with Dr. Michel Heard. It was Dr. Heard’s diagnosis that Trahan suffered from chronic pain syndrome with left radiculitis. Moreover, Dr. Heard was also of the opinion that Trahan was totally disabled, and he did not anticipate that Trahan would return to work. Dr. Heard also agreed that surgical intervention was not an option for Trahan.

The WCJ thoroughly considered Trahan’s medical condition, his “continued complaints, his limited education, and the amount of medication he takes” in reaching the conclusion that he is permanently and totally disabled. We also note that Trahan has had extensive urological treatment, including the insertion of a bladder stimulation system which resulted in complications. Given that Trahan is over fifty years of age, has a ninth grade education, has limited reading and writing skills, has not worked since 1993, and considering his medical history, we find that the WCJ was not manifestly erroneous in concluding that Trahan was permanently and totally disabled. Therefore, we affirm the judgment of the WCJ awarding Trahan permanent and total disability benefits.

DECREE

For the foregoing reasons, we reverse the judgment of the WCJ granting the exception of prescription filed on behalf of the City of Crowley. We hereby render judgment in favor of Michael W. Trahan awarding penalties in the amount of $4,000.00 and attorney fees in the amount of $10,000.00, consisting of $7,500.00 on the trial court level and $2,500.00 on appeal. Finally, we affirm the judgment of the WCJ finding Michael W. Trahan to be permanently and totally disabled.

Costs of this appeal are assessed against the City of Crowley.

AFFIRMED IN PART; REVERSED IN PART; AND RENDERED.

      . We note that in its brief to this court, the employer asserts three specifications of error and identifies four issues presented for review. However, in its answer to appeal, the employer appeals "the trial court's decision awarding the plaintiff's disability benefits.” Therefore, the workers’ compensation judge's award of permanent and total disability is the only issue raised in the answer to appeal which is properly before this court. La. Code Civ.P. art. 2133; Roszell v. Nat'l Union Fire Ins. Co., 602 So.2d 87 (La.App. 3 Cir.), writ denied, 605 So.2d 1365 (La.1992); Lolan v. Louisiana Indus., 95-602 (La.App. 3 Cir. 11/2/95), 664 So.2d 616.

      . Although additional grounds were raised before the WCJ for the imposition of penalties and attorney fees, only the improper calculation of AWW and the reduction of SEB were briefed by Trahan on appeal. Therefore, this court will only consider and rule upon those issues which are properly before this court.


author: SAUNDERS, Judge.

text:
    STATE of Louisiana v. Herbert DAVENPORT, Jr.
    No. KA 07-254.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 3, 2007.
    James Edward Beal, Louisiana Appellate Project, Jonesboro, LA, for Defendant, Herbert Davenport, Jr.

      Michael Harson, District Attorney, 15th Judicial District Court, Lafayette, LA, Richard Johnson Putnam, III, Assistant District Attorney, 15th Judicial District Court, Abbeville, LA, for State of Louisiana.
    Court composed of JOHN D. SAUNDERS, ELIZABETH A. PICKETT, and JAMES T. GENOVESE, Judges.
   SAUNDERS, Judge.

| ]This court previously found as follows:

The State of Louisiana (state) charged the defendant by bill of information with a violation of La.R.S. 14:100. After a two-day trial, which began on July 12, 2005, a jury convicted the defendant of the charge. The trial court then ordered the preparation of a presentence investigation report and set sentencing for November 9, 2005. On that date, the trial court sentenced the defendant to serve seven and one-half years at hard labor. After the trial court rejected his December 6, 2005 motion to reconsider his sentence, the defendant perfected [an] appeal, asserting two assignments of error.

State v. Davenport, 06-363, p. 2 (La.App. 3 Cir. 9/27/06), 941 So.2d 629, 630-31.

The Defendant, Herbert Davenport, Jr., appealed his sentence, alleging that it was excessive. This court did not reach the excessiveness issue, but vacated the sentence and remanded the matter to the trial court because the trial court based the sentence, in part, on improper considerations. Id.

On December 11, 2006, the trial court resentenced the Defendant and ordered him to serve five years at hard labor. A Motion for Appeal and Designation of Record was filed on December 12, 2006.

The Defendant now comes before this court asserting one assignment of error. Specifically, the Defendant contends his sentence is excessive. We disagree.

FACTS:

At approximately 2:00 a.m. on Saturday, September 27, 2003, the Defendant was driving a vehicle south on U.S. Highway 167 (hereinafter “U.S. 167”) in or near Maurice, Vermilion Parish, Louisiana. Ross Plowden accompanied the Defendant and was sitting in the front passenger seat. The two men had been together since early Friday afternoon and were returning from a trip to Lafayette, Louisiana. As the two men traveled the highway, the Defendant accidentally struck and killed a | ¿pedestrian, Cliff R. Gaspard. It is this accident that gave rise to the criminal charge now before us.

At the point where the Defendant struck Gaspard, U.S. 167 is a four-lane highway with the north and south travel lanes separated by a median. Visibility in the early morning hours of September 27, 2003, was impaired by ground fog, and the accident occurred when the Defendant, who was proceeding south in the outside lane of U.S. 167, swerved to the inside lane to avoid a collision with another vehicle which had turned in front of him. When the Defendant entered the inside lane, he immediately encountered Gaspard walking in the middle of the lane. He swerved back toward the outside lane to avoid hitting Gaspard, but, for some unexplained reason, Gaspard turned in the direction of the swerving vehicle and was struck. The Defendant regained control of his vehicle and stopped on the side of U.S. 167, and he and Plowden began a futile search for the victim. After failing to find the victim, the two men abandoned the search and left the scene of the accident without reporting the incident to any law enforcement authority.

At approximately 6:45 a.m. that same morning, Dallas E. Landry discovered Gaspard’s body in the highway median approximately thirteen feet from the edge of the highway and immediately reported his discovery to law enforcement officials. That evening, after seeing a television report concerning the accident, the Defendant turned himself in to law enforcement authorities and subsequently gave an oral statement concerning his involvement in the incident.

ERRORS PATENT:

|3In accordance with La.Code Crim.P. art. 920, all appeals are reviewed by this court for errors patent on the face of the record. After reviewing the record, we find one error patent.

Upon review of the proceedings to date, we find that the Defendant was not apprised at the trial court level of the time limitation for filing an application for post-conviction relief, as mandated by the provisions of La.Code Crim.P. art. 930.8. Accordingly, this court orders the trial court to inform the Defendant of the provisions of article 930.8 by sending appropriate written notice to the Defendant within thirty days of the rendition of the opinion, and to file written proof that the Defendant received such notice in the record of the proceedings. State v. Roe, 05-116 (La.App. 3 Cir. 6/1/05), 903 So.2d 1265, writ denied, 05-1762 (La.2/10/06), 924 So.2d 163.

ASSIGNMENT OF ERROR:

In his only assignment of error, the Defendant contends that his sentence of five years at hard labor was excessive and not in accordance with the factors to be considered for sentencing. The Defendant specifically argues that his sentence is excessive considering the facts of the case and his status as a first offender, and he asserts that he should have received a suspended sentence and probation instead. He asks this court to amend the sentence imposed by suspending the incarceration and imposing a period of supervised probation.

The Eighth Amendment to the United States Constitution and La. Const, art. 1, § 20 prohibit the imposition of cruel or excessive punishment. “ ‘[T]he exces-siveness of a sentence becomes a question of law renewable under the appellate jurisdiction of this court.’ ” State v. Dorthey, 623 So.2d 1276, 1280 (La.1993) |4(quoting State v. Sepulvado, 367 So.2d 762, 764 (La.1979)). Nevertheless, the trial court is given wide discretion in imposing a sentence, and, absent a manifest abuse of that discretion, we will not deem as excessive a sentence imposed within statutory limits. State v. Pyke, 95-919 (La.App. 3 Cir. 3/6/96), 670 So.2d 713. “Maximum sentences are reserved for the most serious violations and the worst offenders.” State v. Farhood, 02-490, p. 11 (La.App. 5 Cir. 3/25/03), 844 So.2d 217, 225. The only relevant question for us to consider on review is not whether another sentence would be more appropriate, but whether the trial court abused its broad discretion in sentencing a defendant. State v. Cook, 95-2784 (La.5/31/96), 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).

In the instant case, the Defendant argues that the trial court abused its discretion in sentencing him to five years at hard labor. We disagree. As discussed above, our jurisprudence instructs this court not to deem as excessive a sentence imposed within statutory limits unless we find a manifest abuse of the trial court’s broad discretion in imposing a sentence. Pyke, 670 So.2d 713. Here, the statutory penalty for criminal hit-and-run driving is a fine of not more than five thousand dollars, or imprisonment with or without hard labor for not more than ten years, or both. La.R.S. 14:100. Thus, because the sentence imposed by the trial court falls within statutory limits, this court must not disturb that sentence absent the trial court’s manifest abuse of discretion.

The Defendant argues that the driving conditions on the night in question and his efforts to locate Mr. Gaspard after the accident represent mitigating factors meriting a lesser sentence, yet as we stated when this case first came before us, “[T]he | sfact that an individual is involved in an accident does not give rise to the criminal charge. Rather, criminal culpability is based on the individual’s action or inaction after the accident.” Davenport, 941 So.2d at 631. “The problem with ‘hit-and-run’ driving is not just the colliding, which is usually unintentional, but with the fleeing, which is usually intentional.” Jonathon R. Cohen, The Immortality of Denial, Tul. L.Rev., Mar. 2005, at 931. When the hit- and-run scenario involves a collision with a pedestrian rather than another automobile, the legislative purpose of R.S. 14:100 — i.e., protecting and aiding persons involved in accidents — has particular applicability. A pedestrian may be left lying on the highway in imminent danger of being hit by yet another vehicle, or lying off the highway in need of aid where he cannot be seen by passing motorists, who are thus unable to render aid themselves. The penalty provision of 14:100 is intended to prevent either of these undesirable consequences of leaving the scene of an accident. Thus, the foggy conditions that occasioned the accident itself do little to mitigate the Defendant’s culpability, as it was the Defendant’s subsequent flight from the scene that actually gave rise to the criminal charge now before us. Further, notwithstanding the good faith with which the Defendant may have searched for Mr. Gaspard after the accident, the record nonetheless indicates that the Defendant discontinued the search and thereafter abandoned his efforts to assist Mr. Gaspard in any way. Additionally, the Defendant failed to notify law enforcement of the occurrence. Although the Defendant eventually turned himself in to the police later that evening, whatever chances at survival Mr. Gaspard may have had following the collision expired long before Mr. Davenport did so. Where the driver of a vehicle involved in a hit-and-run accident neglects his duty to render reasonable aid or to notify the authorities, the possibility | cthat the victim of such an accident will experience additional harm becomes more of a likelihood. “The corollary to ‘what is harmful to you, do not do to others’ is simple: if you have harmed another, take responsibility for it.” Id. at 932. Accordingly, we find that the trial court did not commit a manifest abuse of its discretion in sentencing the Defendant, and thus we affirm.

CONCLUSION:

Because this court does not regard the Defendant’s sentence to be a manifest abuse of the trial court’s discretion, we affirm.

As discussed above, this court also directs the trial court to inform the Defendant of the provisions of article 930.8 by sending appropriate written notice to the Defendant within thirty days of the rendition of the opinion, and also to file written proof that the Defendant received the notice in the record of the proceedings.

AFFIRMED WITH INSTRUCTIONS.


text:
    Pamela Jane Williams MISHLOVE v. Lawrence Alan MISHLOVE.
    No. 07-0495.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 3, 2007.
    Chris Villemarette, Scott M. Hawkins, Marikatherine Sonnier, Hawkins & Ville-marette, L.L.C., Lafayette, LA, for Plaintiff/Appellant, Pamela Jane Williams Mish-love.
    Diane Sorola, Lafayette, LA, for Defendant/Appellee, Lawrence Alan Mishlove.

      Court composed of JIMMIE C. PETERS, GLENN B. GREMILLION, and J. DAVID PAINTER, Judges.
   PETERS, J.

| jPamela Jane Williams Mishlove (Pamela) appeals the trial court’s rejection of her request for reimbursement of funds she claims to have paid in the support of her marriage to her former husband, Dr. Lawrence Alan Mishlove (Lawrence). For the following reasons, we reverse the judgment of the trial court and render judgment in favor of Pamela Mishlove.

DISCUSSION OF THE RECORD

Pamela and Lawrence were married on February 22, 2000, separated on October 22, 2003, and were divorced by judicial decree rendered September 16, 2004. Pri- or to their marriage, the couple entered into a matrimonial agreement wherein they renounced in advance the existence of the community of acquets and gains during their marriage. Instead, they agreed that all property, whether acquired before or during the marriage, would remain the separate property of the acquirer. With regard to the expenses of the marriage, the agreement provided only that “each shall contribute proportionally to the expenses of the marriage.” This portion of the agreement provides the basis for this litigation.

On May 12, 2004, Pamela filed a petition for declaratory judgment seeking to have the matrimonial agreement dissolved for Lawrence’s breach of the agreement, and further seeking reimbursement for monies spent and debt incurred by her for expenses of the marriage. The reimbursement issue, as well as a number of other issues, were heard on November 7, 2005, and after completion of the evidence, the trial court took the matter under advisement. Thereafter, on June 30, 2006, the trial |2court issued written reasons for judgment disposing of all of the issues. With regard to the reimbursement issue, the trial court stated the following:

The remaining issue to be decided by the Court was whether MS. MISH-LOVE was entitled to a money judgment from DR. MISHLOVE due to his failure to contribute proportionally to the expenses of the marriage. As the plaintiff, MS. MISHLOVE bears the burden of proof that DR. MISHLOVE failed to contribute proportionally to the expenses of the marriage.
MS. MISHLOVE introduced into evidence credit card summaries with attached statements in order to prove that she has a current credit debt of $51,922.86. She testified that these credit card charges were for expenses of the marriage.
On the other hand, DR. MISHLOVE testified that MS. MISHLOVE had run up credit card charges during the marriage which he paid off once she revealed the balances to him. According to his testimony, he admonished MS. MISHLOVE not to run the credit card bills up again since he would not pay them. DR. MISHLOVE insisted that he made regular- contributions to the household in which MS. MISHLOVE paid certain expenses and he paid the remaining expenses of the family directly-
MS. MISHLOVE testified that DR. MISHLOVE did not give her money regular [sic] every monthly [sic], but rather he would instruct her to make purchases or charge certain items on her credit cards and would later refuse to pay her. However, MS. MISHLOVE failed to introduce into evidence any of the parties’ checking account records to indicate the amount of money DR. MISHLOVE provided her during the marriage or to show how the expenses of the marriage were paid. Accordingly, the Court finds that MS. MISHLOVE has failed to sustain her burden of proof that DR. MISHLOVE did not contribute proportionally to the expenses of the marriage and her request for a money judgment against DR. MISHLOVE in the amount of $51,992.86 is denied at her costs.

The trial court executed a judgment to this effect on December 21, 2006, and Pamela perfected this appeal thereafter. In her appeal, Pamela raises two assignments of error:

1. The trial court erred in denying her demand because she could not prove the amount of money given to her as a stipend.
2. The trial court erred in denying her demand for reimbursement of at least one-half of the household expenses.

^OPINION

In its reasons for judgment, the trial court phrased the issue as “whether MS. MISHLOVE was entitled to a money judgment from DR. MISHLOVE due to his failure to contribute proportionally to the expenses of the marriage.” After considering the issue in that context, the trial court then denied Pamela’s claim, concluding that she had not proven that Lawrence did not contribute proportionally to the expenses of the marriage. The trial court based this conclusion on the lack of evidence of the amount contributed by Lawrence. Specifically, the trial court found that Pamela “failed to introduce into evidence any of the parties’ checking account records to indicate the amount of money [Lawrence] provided her during the marriage or to show how the expenses of the marriage were paid.”

While the issue was accurately phrased by the trial court, we find that the trial court erred in finding that Pamela’s failure to introduce evidence of payments by her former husband to her was fatal to her claim. Under the terms of the prenuptial agreement, both Lawrence and Pamela were to “contribute proportionally to the expenses of the marriage.” The evidence established that during the marriage Lawrence pursued his career as a physician and Pamela worked outside the home for a very short period early in the marriage. However, during the majority of the time the couple were married, Pamela maintained the home. Earning essentially no money during the course of the marriage, she had no funds to contribute to the expenses of the marriage; instead her contribution to the expenses of the marriage consisted of her efforts in running the household. Under those conditions, Lawrence was required to pay all of the expenses of the marriage. See, generally, Fleishmann v. Fleishmann, 538 So.2d 306 (La.App. 5 Cir.1989), writ granted in part, denied in pertinent part, 567 So.2d 601 (La.1990) and Finley v. Finley, 305 So.2d 654 (La.App. 1 Cir.1974). Thus, the question before the trial court was not whether Lawrence contributed proportionately to the marriage, but rather whether the credit card debt for which Pamela seeks reimbursement was created by charging items that are valid expenses of the marriage.

“Where one or more trial court legal errors interdict the fact-finding process, the manifest error standard is no longer applicable, and, if the record is otherwise complete, the appellate court should make its own independent de novo review of the record and determine a preponderance of the evidence.” Ferrell v. Fireman’s Fund Ins. Co., 94-1252, p. 7 (La.2/20/95), 650 So.2d 742, 747. Because the record is otherwise complete in this matter, we make our own independent de novo review of the record and determine the preponderance of the evidence.

Both parties agree that Lawrence gave Pamela approximately $3,000.00 per month to cover household expenses. There also appears to be little dispute that sometime during the marriage, after Pamela had acquired a Yukon Denali automobile, he increased the amount to $4,500.00 to pay the $1,400.00 monthly note on the automobile. Thus, the uncontradicted evidence is that Pamela had approximately $3,000.00 per month to meet the financial obligations of the home.

There is also no dispute that Pamela incurred significant credit card debt during the marriage. At trial she set the amount at $51,922.86, which included the principal debt as well as late charges and interest. She asserts in this litigation that the debt arose solely from purchases which supported the home and marriage. Pamela testified that this credit card usage and debt began early in the marriage because the funds Lawrence provided her were not sufficient to pay the monthly expenses she was | .-.required to cover. Her debt continued to accumulate because she was required to supplement the monthly allowance that Lawrence gave her. According to Pamela, when the funds Lawrence supplied were not sufficient to pay the bills, or when he was late in providing the funds, she would borrow from one credit card to timely pay another. She testified that occasionally she would convince Lawrence to pay the bills and bring the credit cards up-to-date. Lawrence admitted that at least one time he paid a credit card bill of approximately $15,000.00 at Pamela’s request, and that he paid balances on numerous others. He also admitted that on occasion, when Pamela exceeded the $3,000.00 per month stipend, he would provide additional funds — but only if she produced the receipts for the purchases, and only if he felt the receipts warranted reimbursement.

With regard to the marital expenses, Pamela testified that she was responsible for all of the out-of-pocket expenses, including co-payments for doctors’ visits, all expenses for the children, diapers, toys, Lawrence’s dry cleaning, groceries, maid service, baby sitters, plumbing charges, gasoline, and clothing for herself as well as for the children. She also asserted that she paid for most of the meals eaten away from the home. Lawrence testified that he paid for the mortgage on the home, automobile notes, utilities, pool maintenance, lawn seivice, gasoline expenses, telephone, and social expenses related to eating out — all in addition to the allowance he provided his wife.

Lawrence testified that when he and Pamela married he paid a $10,000.00 debt owed by her. Additionally, because he believed Pamela abused the use of the credit cards, he took the one issued in his name away from her. Pamela disputed [ (¡Lawrence's claim concerning the pre-marriage debt, and testified that the credit cards, which were in her name only, were necessary to pay for the expenses of the home.

In support of her claim, Pamela produced numerous credit card statements. A review of the charges listed on these statements establishes that most can be traced to purchases at department stores, home repair and hardware stores, paint stores, clothing stores, restaurants, airlines, gas stations, auto repair service centers, dry cleaners, toy stores, utility companies, doctors’ offices, drug stores, office supply stores, insurance companies, shoe stores, and the post office. There were also numerous finance charges, late fees, and overdraft charges. These all appear to be customary and ordinary expenses of the marriage, from which Lawrence, Pamela, and their children all benefitted. In fact, when shown the credit card statements, Lawrence could not dispute any charges. Specifically, when asked whether there were any charges that were unnecessary or unrelated to the household, he stated that he could not “make attestations whether they were valid or invalid items that [Pamela was] claiming.”

To determine whether the charges are expenses of the marriage, we must determine the nature of the charges as well as the ultimate use of the items purchased. See Sequeira v. Sequeira, 04-433, 04-463 (La.App. 5 Cir. 11/30/04), 888 So.2d 1097, writ denied, 05-350 (La.4/29/05), 901 So.2d 1065. The only positive evidence in this regard was Pamela’s testimony that all purchases were for the marriage. Lawrence could not dispute Pamela’s testimony except to say that he did not believe that the expenditures were related to the normal expenses of maintaining the home, children, and marriage.

|7In evaluating the testimony of the two litigants, we note that at the same time the matter now before us on appeal was tried the trial court was called upon to consider a rule to reevaluate Lawrence’s child support obligation. Lawrence’s testimony in that regard is pertinent to the issue now before us. On the one hand, Lawrence asserts that $3,000.00 per month should have been more than enough for Pamela to pay the day-to-day expenses of the household. On the other hand, he asserted that his share of the very basic monthly expenses necessary to maintain his current lifestyle as a practicing physician in Florida required that he pay $100.00 per month for an alarm system, $1,000.00 per month for maid service, $100.00 per month for carpet cleaning, $1,000.00 per month for automobile operating expenses, $300.00 per month for television and computer cable service, $1,000.00 for disability and life insurance coverage, and approximately $500.00 per month for personal grooming needs. Thus, he claims expenditures of over $4,000.00 in basic expenses without even considering the day-to-day costs of raising a child and maintaining a home.

Our review of the record before us persuades us that Pamela met her burden of establishing by a preponderance of the evidence that the credit card debt as of the date of trial was created by charging items that are expenses of the marriage. Additionally, we reject Lawrence’s argument that the prenuptial agreement requires that Pamela pay one-half of the expenses of the marriage. While it would have been very simple to make that a requirement of the agreement, the parties choose to require a proportionate contribution. In this case, Pamela’s proportionate share was zero, because she had no income or assets to contribute. Accordingly, as set out in their prenuptial agreement, Lawrence was responsible for the $51,922.86 in credit card debts for which Pamela has requested reimbursement.

1 ^DISPOSITION

Following our de novo review of the record, we reverse the trial court’s denial of the demands of Pamela Jane Williams Mishlove and render judgment in her favor and against Dr. Lawrence Alan Mishlove in the amount of $51,922.86, together with all legal interest from the date of judicial demand until paid in full. We assess all costs of these proceedings to Dr. Lawrence Alan Mishlove.

REVERSED AND RENDERED.

      . The record reflects that numerous issues arising from the dissolution have been litigated. However, the only issue before us in this appeal relates to expenses incurred during the marriage.

      . The trial court ruled on November 18, 2004, that the matrimonial agreement could not be dissolved based on Lawrence’s breach, and this decision was not appealed.