text:
    In re David Jack DOWELL.
    No. 2006-B-1201.
    Supreme Court of Louisiana.
    Oct. 6, 2006.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

■JjThis disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, David Jack Dowell, an attorney licensed to practice law in Louisiana but currently ineligible to practice.

UNDERLYING FACTS

In July or August 2001, Stacey Dagsaan Stratton hired respondent to handle her father’s succession. At the time, respondent was employed by the law firm of Windhorst, Gaudry, Ranson, Higgins & Gremillion (“Windhorst”). Despite his full-time employment with Windhorst, respondent handled the succession as a private practice matter without Windhorst’s knowledge or consent and despite Win-dhorst’s policy of not allowing full-time attorneys to have a private practice. Respondent also advised Ms. Stratton he would be working on the succession as a Windhorst matter.

Ms. Stratton paid respondent a total of $2,000 as a retainer to handle the succession. Respondent instructed her to make the checks payable to himself even though he was supposed to be working on the matter on behalf of Windhorst. Thereafter, he failed to turn the $2,000 retainer over to Windhorst despite recording his work on Windhorst’s time sheets, which indicated his time was billable on an hourly basis to Ms. Stratton. At some point, Ms. Stratton also delivered to respondent a tax refund check made payable to the decedent in the approximate amount of $290.

| Jn November 2001, respondent left his employment with Windhorst. Despite informing Ms. Stratton that he would continue to work on the succession, he failed to diligently pursue the matter and thereafter failed to communicate with Ms. Stratton. When he did communicate with her, he informed her that he had filed the succession when, in fact, he had not.

In January 2002, Windhorst sent Ms. Stratton a bill in the amount of $1,965 for work done by respondent on the succession despite the fact that Ms. Stratton had already paid for this work with the $2,000 retainer provided to respondent.

Respondent terminated his attorney-client relationship with Ms. Stratton in October 2002. At that time, respondent returned some of Ms. Stratton’s file materials. However, he failed to return the tax refund check. He also failed to account for the $2,000 retainer and the tax refund check. Thereafter, Ms. Stratton contacted Windhorst to complete the succession.

In October 2002, Daniel Ranson, a partner at Windhorst, filed a complaint against respondent with the ODC. Despite receiving notice of the complaint, respondent failed to answer, necessitating the issuance of a subpoena by the ODC to obtain his sworn statement. During the sworn statement, respondent falsely informed the ODC that he had recorded the time he worked on the succession while employed by Windhorst as non-billable work.

DISCIPLINARY PROCEEDINGS

Formal Charges

On January 21, 2005, the ODC filed two counts of formal charges against respondent, alleging that his conduct violated Rules 1.3 (failure to act with reasonable diligence and promptness in representing a client), 1.4 (failure to communicate with a client), 1.5 (fee arrangements), 1.16(d) (obligations upon termination of the | ..¡representation), 8.1(c) (failure to cooperate with the ODC in its investigation), 8.4(b) (commission of a criminal act reflecting adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer), and 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation) of the Rules of Professional Conduct. Respondent answered the formal charges, essentially denying the allegations of misconduct.

Formal Hearing

This matter proceeded to a formal hearing on the merits, which was conducted by the hearing committee on June 17, 2005. The ODC introduced documentary evidence and called Mr. Ranson and Ms. Stratton to testify before the committee. Respondent did not participate in the hearing, instead indicating that he intended to “submit this matter on the records and the pleadings avoiding the need for a formal hearing.” He also indicated that he did not intend to call any witnesses in the matter.

Hearing Committee Recommendation

After considering this matter, the hearing committee made factual findings as follows:

In or around August 2001, respondent handled a succession for Ms. Stratton as a private practice matter without Win-dhorst’s knowledge or consent despite working full-time for Windhorst. No full-time employees at Windhorst were allowed to conduct a private practice while in the firm’s employ. Ms. Stratton reasonably believed respondent was working on the succession as a Windhorst matter. Ms. |4Stratton paid $2,000 directly to respondent while he was employed with Win-dhorst. Respondent recorded some, if not most, of his work on the succession on his Windhorst time sheets and assigned the time to a billable account, not a non-billable account as he testified in his sworn statement. Although he recorded the time as billable, respondent failed to obtain Windhorst’s approval to take the case and failed to initiate a Windhorst invoice. Instead, he received payment for his work directly from Ms. Stratton, did not disclose receipt of the funds to Windhorst, and converted the funds to his own use.

At some point thereafter, respondent stopped communicating with Ms. Stratton and refused to account for his work and fees. He also failed to do any work on the succession, falsely informed his client that he had filed the succession pleadings, failed to provide her with status updates, and failed to deliver file materials. After ignoring multiple requests for the return of the file, respondent left a portion of the file on Ms. Stratton’s doorstep. He withheld pleadings and research materials he had produced and failed to return the tax refund check to Ms. Stratton despite written requests from Mr. Ranson to return same.

After respondent’s unbilled time was discovered by Windhorst, invoices were sent to Ms. Stratton. Additionally, Win-dhorst advised Ms. Stratton that respondent had left the firm and inquired whether she wanted Windhorst to continue to represent her in the succession. Win-dhorst did not know that respondent had received payment directly from Ms. Strat-ton until she contacted Mr. Ranson in response to receiving the invoice. Thereafter, respondent advised Ms. Stratton not to contact Windhorst and not to meet with anyone at Windhorst. Respondent also apparently advised Ms. Stratton not to provide Windhorst with the cancelled checks of her payments to respondent. Windhorst then recorded a lien against the decedent’s estate for the fees |sdue but cancelled same once it learned of the true circumstances. Thereafter, Windhorst completed the succession for no additional fee.

Respondent failed to respond to Mr. Ranson’s request for an accounting and the return of Ms. Stratton’s file. He also failed to respond to a request to reimburse Ms. Stratton $800 in losses resulting from his failure to finalize the succession. Furthermore, respondent failed to file the succession pleadings even though he told Ms. Stratton he had. Consequently, Ms. Strat-ton’s attempts to obtain confirmation of the filings were unsuccessful.

By letters dated November 19, 2002 and December 11, 2002, the ODC informed respondent of Mr. Ranson’s complaint against him. Respondent did not respond, and the ODC was required to issue a subpoena to obtain his sworn statement. In his sworn statement, respondent gave no explanation for his failure to respond other than to state that he would rather give his response in person. There is also no evidence that respondent responded to the ODC’s July 7, 2004 letter regarding possible resolution before the filing of formal charges. Nor is there evidence that he responded to the ODC’s November 19, 2004 letter regarding consent discipline even though he previously expressed an interest in same.

Based on these factual findings, the committee determined that respondent violated Rules 1.3, 1.4, 1.5, 1.16(d), 8.1(c), 8.4(b), and 8.4(c) of the Rules of Professional Conduct. The committee also determined that respondent knowingly and intentionally violated duties owed to his client, the public, and as a professional. His actions caused harm to his client and to Windhorst and created the potential for additional harm to Ms. Stratton. Relying upon the ABA’s Standards for Imposing Laujyer Sanctions, the committee determined that the baseline sanction is disbarment.

The committee found the following aggravating factors present: dishonest or selfish motive, bad faith obstruction of the disciplinary proceeding by intentionally | (¡failing to comply with the rules or orders of the disciplinary agency, submission of false evidence, false statements, or other deceptive practices during the disciplinary process, refusal to acknowledge the wrongful nature of the conduct, vulnerability of the victim, substantial experience in the practice of law (admitted 1994), and indifference to making restitution. The only mitigating factor found by the committee is the absence of a prior disciplinary record.

Under these circumstances, the committee recommended that respondent be disbarred. The committee also recommended that respondent reimburse the decedent’s estate for the tax refund check, reimburse Ms. Stratton for the $800 in additional expenses she incurred as a result of respondent’s misconduct, and reimburse Windhorst for the $2,000 in fees he received for the firm’s work on the succession. Finally, the committee recommended that respondent be assessed with all costs of these proceedings.

Neither respondent nor the ODC filed an objection to the hearing committee’s recommendation.

Disciplinary Board Recommendation

After reviewing this matter, the disciplinary board determined that the hearing committee’s factual findings are not manifestly erroneous with the following modifications: (1) the testimony and evidence presented at the hearing indicated that respondent did perform some work on the succession, and (2) Ms. Stratton’s losses resulting from respondent’s failure to finalize the succession totaled $400, not $800.

The board adopted the committee’s “sanction analysis” and recommended that respondent be disbarred. The board also recommended that respondent make restitution to the decedent’s estate for the tax refund check and make restitution to Win-dhorst in the amount of $2,000 for the fees received relative to the succession. |7However, the board determined that requiring respondent to reimburse Ms. Stratton for the $400 “would appear to fall outside of the scope of Louisiana Supreme Court XIX.” Finally, the board recommended that respondent be assessed with all costs and expenses of these proceedings.

Neither respondent nor the ODC filed an objection to the disciplinary board’s recommendation.

DISCUSSION

Bar disciplinary matters come within the original jurisdiction of this court. La. Const, art. V, § 5(B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Quaid, 94-1316 (La.11/30/94), 646 So.2d 343; Louisiana State Bar Ass’n v. Boutall, 597 So.2d 444 (La.1992). While we are not bound in any way by the findings and recommendations of the hearing committee and disciplinary board, we have held the manifest error standard is applicable to the committee’s factual findings. See In re: Caulfield, 96-1401 (La.11/25/96), 683 So.2d 714; In re: Pardue, 93-2865 (La.3/11/94), 633 So.2d 150.

The record supports the conclusion that respondent neglected the succession he was hired to handle for Ms. Stratton, failed to communicate with his client, misappropriated the fees due to Windhorst, misappropriated the tax refund check belonging to the decedent’s estate, failed to provide Ms. Stratton with a complete copy of her file upon termination of the representation, engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation, and failed to cooperate with the ODC in its investigation. This conduct falls far below the high ethical standard expected of attorneys licensed to practice law in this state.

|sHaving found evidence of professional misconduct, we now turn to a determination of the appropriate sanction for respondent’s actions. In considering that issue, we are mindful that disciplinary proceedings are designed to maintain high standards of conduct, protect the public, preserve the integrity of the profession, and deter future misconduct. Louisiana State Bar Ass’n v. Reis, 513 So.2d 1173 (La.1987). The discipline to be imposed depends upon the facts of each case and the seriousness of the offenses involved considered in light of any aggravating and mitigating circumstances. Louisiana State Bar Ass’n v. Whittington, 459 So.2d 520 (La.1984).

Respondent’s professional violations involve misappropriation of funds belonging to his law firm and client, misrepresentations to his law firm and client, neglect of a legal matter and failure to cooperate with the ODC. Our jurisprudence indicates the appropriate sanction for such misconduct ranges from disbarment to a lengthy suspension. See In re: Arbour, 05-1189 (La.11/29/05), 915 So.2d 345 (attorney suspended for two years for, among other things, neglecting a succession matter, mismanaging succession funds, failing to provide an accounting and information to other attorneys involved in the matter, and failing to cooperate with the ODC); In re: Collinsworth, 01-1628 (La.9/21/01), 795 So.2d 312 (attorney disbarred for depriving clients, third parties, and a former employer of money for a substantial period of time, showing little concern for the welfare of clients or colleagues, failing to cooperate in a disciplinary investigation, and failing to make or attempt to make restitution to his victims); and In re: Kelly, 98-0368 (La.6/5/98), 713 So.2d 458 (attorney suspended for three years for converting funds belonging to his law firm, with numerous mitigating factors present).

Numerous aggravating factors are present in this case: dishonest or selfish motive, bad faith obstruction of the disciplinary proceeding by intentionally failing [ 9to comply with the rules or orders of the disciplinary agency, submission of false evidence, false statements, or other deceptive practices during the disciplinary process, refusal to acknowledge the wrongful nature of the conduct, vulnerability of the victim, substantial experience in the practice of law and indifference to making restitution. The sole mitigating factor is respondent’s lack of a prior disciplinary record.

Considering the facts of the case as a whole, with particular emphasis on respondent’s dishonesty both toward his client and his law firm, we conclude disbarment is the appropriate sanction. Accordingly, we will disbar respondent and order him to make restitution to the decedent’s estate for the tax refund check and to make restitution to Windhorst for the $2,000 fee.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, it is ordered that David Jack Do-well, Louisiana Bar Roll number 23041, be and he hereby is disbarred. His name shall be stricken from the roll of attorneys and his license to practice law in the State of Louisiana shall be revoked. It is further ordered that respondent shall make restitution to the law firm of Windhorst, Gaudry, Ranson, Higgins, & Gremillion in the amount of $2,000 and make restitution to the estate of Teófilo Dagsaan for the tax refund check in the approximate amount of $290. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

JOHNSON, J., would suspend for three years.

      . At the formal hearing, the ODC indicated that a violation of Rule 8.4(b) should have been alleged in the formal charges with respect to the allegation that respondent failed to deliver the $2,000 fee to Windhorst. However, due to a clerical error, a violation of Rule 8.4(c) was alleged instead. The ODC orally requested that the hearing committee consider Rule 8.4(b) instead of Rule 8.4(c) with respect to this allegation.


source: Caselaw Access Project

author: JAMES L. CANNELLA, Judge Ad Hoc.

license: Public Domain

text:
    WALSH & BAILEY v. Matthew T. LOFASO.
    No. 2005-CA-1476.
    Court of Appeal of Louisiana, First Circuit.
    June 9, 2006.
    Rehearing Denied Sept. 19, 2006.

      William H. Cooper, Jr., Baton Rouge, for Appellant.
    Randall E. Estes, Baton Rouge, for Ap-pellee.
    Panel composed of Ad Hoc Judges JAMES L. CANNELLA, MARION F. EDWARDS and SUSAN M. CHEHARDY.
   JAMES L. CANNELLA, Judge Ad Hoc.

| ¡/The Plaintiff, Walsh & Bailey, appeals from a judgment granting a peremptory exception of no cause of action filed by the Defendant, Matthew T. Lofaso. We reverse and remand.

The Plaintiff filed a Petition for Accounting in November of 2004. The petition asserted a claim to certain legal fees allegedly owed to the Parish by the Defendant, an attorney initially employed by O’Neal Walsh, and then by the Plaintiff, from March of 2000 until February of 2004. The petition also seeks disclosure of the status of the relevant cases. The Defendant responded with an exception of no cause of action, contending that a petition for accounting is the improper vehicle for discovering the status of the cases, and that it is only an attempt to conduct discovery. The Defendant asserted that the Plaintiffs remedy is by intervention in the individual lawsuits in which the law firm claims an interest.

|sThe matter was heard on February 14, 2005 and the exception was granted on February 18, 2005. The Plaintiff filed a motion for new trial on March 1, 2005, which was denied on April 18, 2005.

On appeal, the Plaintiff argues that the trial judge erred in granting the exception of no cause of action. Alternatively, it contends that the trial judge erred in failing to allow it to amend the pleadings prior to dismissing with prejudice the lawsuit. The Plaintiff further contends that the trial judge erred by considering the Plaintiffs counsel’s failure to appear as a factor in dismissing its suit, given the circumstances surrounding the “failure to appear.” The Plaintiff also contends that the trial judge erred in denying its motion for a new trial.

CAUSE OF ACTION

A cause of action, when used in the context of the peremptory exception, is defined as the operative facts that give rise to the plaintiffs right to judicially assert the action against the defendant. Ramey v. DeCaire, 03-1299 (La.3/19/04), 869 So.2d 114, 118; Everything on Wheels Subaru, Inc. v. Subaru South, Inc., 616 So.2d 1234, 1238 (La.1993). The function of the exception of no cause of action is to test the legal sufficiency of the petition by determining whether the law affords a remedy on the facts alleged in the petition. Ramey, 869 So.2d at 118; Everything on Wheels Subaru, Inc., 616 So.2d at 1235; Rebardi v. Crewboats, Inc., 04-0641 (La.App. 1st Cir.2/11/05), 906 So.2d 455, 457.

Louisiana has a system of fact pleading. La. C.C.P. art. 854 cmt. (a); Ramey, 869 So.2d at 118. Therefore, although it is not necessary for a plaintiff to plead the theory of his case in the petition, mere conclusions unsupported by facts do not state a cause of action. Id.

Generally, no evidence may be introduced to support or controvert the exception raising the objection of no cause of action. La. C.C.P. art. 931; Ramey, 4869 So.2d at 118; Rebardi 906 So.2d at 457. In addition, all facts pled in the petition must be accepted as true, and any doubts are resolved in favor of the sufficiency of the petition to state a cause of action. Ramey, 869 So.2d at 118; Rebardi, 906 So.2d at 457. Thus, the only issue at the trial of the exception is whether, on the face of the petition, the plaintiff is legally entitled to the relief sought. Ramey, 869 So.2d at 118; Rebardi, 906 So.2d at 457. If the petition alleges sufficient facts to establish a case cognizable in law, the exception raising the objection of no cause of action must fail. Rebardi 906 So.2d at 457. Furthermore, when a petition states a cause of action as to any ground or portion of a demand, the exception should be overruled. Ramey, 869 So.2d at 119; Livingston Parish Sewer Dist. No. 2 v. Millers Mut. Fire Ins. Co. of Texas, 99-1728 (La.App. 1st Cir.9/22/00), 767 So.2d 949, 952.

Appellate courts review de novo a judgment sustaining a peremptory exception raising the objection of no cause of action. Ramey, 869 So.2d at 119; Rebardi 906 So.2d at 457. This is because the exception raises a question of law, and the trial court’s decision is based only on the sufficiency of the petition. Ramey, 869 So.2d at 119; Rebardi 906 So.2d at 457.

In reviewing the petition to determine whether a cause of action has been stated, the court must, if possible, interpret it to maintain the cause of action. Livingston Parish Sewer Dist. No. 2, 767 So.2d at 952. Any reasonable doubt concerning the sufficiency of the petition must be resolved in favor of finding that a cause of action has been stated. Id.; Ramey, 869 So.2d at 119.

When the court finds that the exception of no cause of action should be granted, but also finds that the grounds of the objection may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court. La. C.C.P. art. 934. If the 1 .¡grounds of the objection raised through the peremptory exception cannot be so removed, or if the plaintiff fails to comply with the order to amend, the action, claim, demand, issue, or theory shall be dismissed. Id.

According to the petition, the Defendant was entitled to “a bonus of Fifty Percent (50%) of all fees generated by any plaintiff cases he brought into the firm; and he was also responsible for Fifty Percent (50%) of all costs incurred by WALSH & BAILY in such cases where no fee was generated or received.” The petition next asserts that the plaintiff “desires that Defendant ..., render a full accounting of all plaintiff cases for which he was entitled to a fee during his employment.” In the next paragraph, the Plaintiff states that it “attaches discovery requests and asks that Defendant ..., be ordered to produce his answers to the Interrogatories and responses to the Requests for Production of Documents attached hereto within fifteen (15) days from the date of service.”

The Plaintiff refers to extraneous facts in explanation as to why the law firm cannot intervene in the lawsuits at this point in the proceedings. It asserts that the law firm lacks sufficient information to name with particularity each and all of those cases that are at issue due to those facts. We cannot consider facts that are not in the petition in resolving the exception of no cause of action.

The Plaintiff also cites City of Gretna v. Gosserand, 181 So. 214 (La.App.1938), the only case directly on point in support of his position that he has asserted a cause of action. There the court concluded that the petition for accounting is a proper procedural vehicle for an employer to have his “agent account to him for the manner in which the mandate is executed.” Id. at 215. We have found only two other eases in which petitions for accounting were filed that did not involve domestic or succession matters. However, in neither of the cases did the defendant or the court raise the issue of no cause of action relative to the petition for | (¡accounting. In J.R. Quaid, Inc. v. Cyclone Fence Co., 226 La. 398, 76 So.2d 409 (La.1954), a petition for accounting was filed by a distributor of certain products for an accounting of commissions and for proper credit for materials which were defective, inferior, and unsuitable. The issue was resolved on the merits. In Tagliaferri v. Weiss Bros. Stores, Inc., 388 So.2d 765 (La.1980), the defendant’s employees brought suit for accounting regarding their interest in their pension plan. The issue in that case was subject matter jurisdiction.

In this case, we find that nothing in the law precludes a party from instituting a lawsuit to force another to account for his handling of funds owed to the other in cases not involving domestic or succession issues. We conclude that such a petition can state a cause of action, presuming that it is properly pled.

In this case, the “cause” or operative facts upon which the “action” for accounting is based is the allegation that there exists a contractual obligation on the part of the Defendant to the Plaintiff. The “action” upon which the “cause” is based, is for the accounting to Plaintiff of the status of those cases. As set out in the prayer, the damages are for payments of the sums that have been recovered by the Defendant and are due to the Plaintiff. Therefore, we find that the petition states a cause of action.

The Defendant asks this court to award attorney’s fees for the appeal. However, the Defendant has failed to cite any authority for the award of attorney’s fees in this type of case. It is well established that in the absence of legal authority, contract or statute, a party is not entitled to attorney’s fees. Frank L. Beier Radio, Inc. v. Black Gold Marine, Inc., 449 So.2d 1014, 1015 (La.1984); Silliman Private School Corp. v. Shareholder Group, 01-0964 (La.App. 1st Cir.5/10/02), 819 So.2d 1088, 1092. Therefore, Defendant’s request is denied.

^Accordingly, the judgment of the trial court is hereby reversed. The case is remanded for further proceedings. Costs of the appeal are to be paid by the Appel-lee.

REVERSED AND REMANDED.

      . We note that although the requests for interrogatories and production of documents are properly attached to the petition, discovery requests are not made part of the petition as they assert no facts.


author: DOWNING, J.

text:
    The SUCCESSION OF William Edward FAGET Pier Marie Faget Jenkins, as Independent Administratrix of the Succession of William Edward Faget v. Audrey Menard Faget.
    Nos. 2005 CA 1434, 2005 CA 1435.
    Court of Appeal of Louisiana, First Circuit.
    June 9, 2006.

      Pierre V. Miller, II, New Orleans, Albert J. Derbes, III, Metairie, Counsel for Plaintiffs/Appellees/Exceptors William Edward Faget, Jr., Pier Marie Faget Jenkins, and Vivian Adelaide Faget.
    Edwin A. Stoutz, Jr., New Orleans, Counsel for Defendant/Appellant Kerri Louise Colomb.
    Harry P. Pastuszek, Jr., Patrice W. Op-penheim, Mandeville, Counsel for Defendant/Appellee Audrey Menard Colomb.
    Before: CARTER, C.J., DOWNING and GAIDRY, JJ.
   DOWNING, J.

1 ¡¿This appeal involves a petitioner, Kerri Louise Colomb, who seeks to inherit from her deceased alleged biological father. Ms. Colomb was born during her mother’s marriage to another man. Subsequent to Ms. Colomb’s birth, Ms. Colomb’s mother married the alleged biological father. Regarding Ms. Colomb’s claim for filiation under La. C.C. art. 209, the trial court sustained the defendants/appellees’ (“Faget heirs” ’) exception of prescription. Regarding her claim for filiation under La. C.C. art. 198, the trial court rendered summary judgment against Ms. Colomb and in favor of the Faget heirs, dismissing Ms. Colomb’s claims with prejudice. For the following reasons, we affirm the judgment of the trial court.

FACTS AND PROCEDURAL HISTORY

Kerri Louise Colomb was born in August 1966 during her mother’s marriage to Harvey Colomb. Her mother and Harvey Colomb subsequently divorced, and her mother married Dr. William E. Faget, the decedent. Dr. Faget had three children, the Faget heirs, from a previous marriage.

Dr. Faget died intestate in May 2003. In March 2004, Ms. Colomb sought to intervene in the administration of Dr. Fag-et’s succession by filing an objection to a partial petition for possession on the grounds that she was the child of Dr. Faget and was also an intestate heir. She sought a declaration to that effect.

Subsequently, the Faget heirs filed a motion for summary judgment against Ms. Colomb. Later, they filed an exception of prescription asserting that Ms. Colomb’s claims were time-barred.

In January 2005, the trial court held a hearing on the motion for summary judgment and on the exception of prescription. The trial court [¿rendered judgment sustaining the Faget heirs’ exception of prescription as to Ms. Colomb’s claim arising under former La. C.C. art. 209, dismissing the claim with prejudice. It overruled the exception of prescription as to Ms. Co-lomb’s claim arising under former La. C.C. art. 198. However, the trial court granted the Faget heirs’ motion for summary judgment, dismissing with prejudice Ms. Co-lomb’s La. C.C. art. 198 claim for filiation. The trial court denied Ms. Colomb’s motions for new trial and for reconsideration.

Ms. Colomb now appeals contending the trial court erred in sustaining the exception of prescription and in granting summary judgment.

The Faget heirs have filed an exception of no cause of action for the first time in this court.

DISCUSSION

In addressing her assignments of error, Ms. Colomb does not argue that material facts or questions of law exist to preclude entry of summary judgment as to her La. C.C. art. 198 claims. Nor does she argue that prescription was interrupted or failed to run on her La. C.C. art. 209 action. Rather, she argues that she has proven her paternity claim under the provisions of 2005 La. Acts 192, which amended and reenacted La. C.C. arts. 178 through 211. This act became effective June 29, 2005, while this appeal was pending. Ms. Colomb frames her issue presented for review as, “In light of the enactment of Act 192 of 2005, does the appellant have a viable paternity claim?”

The Faget heirs, in addressing their exception of no cause of action, argue that Ms. Colomb fails to state a cause of action for applying 2005 La. Acts 192 to the issues before us. Act 192 became effective while this appeal | Swas pending. The Fag-et heirs claim such application would violate their right to due process by divesting them of a vested right to plead prescription.

Addressing the exception of no cause of action first, we overrule the exception because we are bound to consider all law applicable to the case on review. La. C.E. art. 202A mandates that “[a] court, whether requested to do so or not, shall take judicial notice of the laws of the United States, of every state, territory, and other jurisdiction of the United States .... ” Thus, we are required to notice the provisions of our own law even if argued for the first time in this court.

We therefore review the trial court judgment in light of the provisions of 2005 La. Acts 192.

Claim under Former Louisiana Civil Code art. 209

In its first pertinent decree, the trial court maintained the Faget heirs’ exception of prescription and dismissed Ms. Colomb’s claim with prejudice to the extent her claim to establish paternity through DNA evidence arose under former La. C.C. art. 209. This article provided, in pertinent part, as follows:

B. A child not entitled to legitimate filiation nor filiated by the initiative of the parent by legitimation or by acknowledgment under Article 203 must prove filiation as to an alleged deceased parent by clear and convincing evidence in a civil proceeding instituted by the child or on his behalf within the time limit provided in this article.
C. The proceeding required by this article must be brought within one year of the death of the alleged parent or within nineteen years of the child’s birth, whichever first occurs. This time limitation shall run against all persons, including minors and interdicts. If the proceeding is not timely instituted, the child may not thereafter establish his filiation, except for the sole purpose of establishing the right to recover damages under Article 2315. A proceeding for that purpose may be brought within one year of the death of the alleged parent and may be cumulated with the action to recover damages.

| fiMs. Colomb’s attempt to establish paternity through DNA results clearly fell under former La. C.C. art. 209. Accordingly, by terms of that article, her claim prescribed when Ms. Colomb was nineteen years old, some eighteen to nineteen years prior to this litigation.

Ms. Colomb argues, however, that the current La. C.C. art. 197, which was enacted by 2005 La. Acts 192, now applies to her claim for paternity, rather than the prescriptive period contained in former La. C.C. art. 209. Ms. Colomb focuses on Section 3 of Act 192, which provides: “The provisions of this Act shall be applicable to all claims existing or actions pending on its effective date and all claims arising or actions filed on and after its effective date.”

Thus, Ms. Colomb argues that current Art. 197 now applies to her claim for paternity and that the prescriptive period contained in former La. C.C. art. 209 no longer controls her claim.

We incline to a contrary view, however. We do not interpret Act 192 to revive prescribed claims or to create new rights.

In Chance v. American Honda Motor Co., Inc., 93-2582 (La.4/11/94), 635 So.2d 177, 178, the Louisiana Supreme Court observed that if it were to interpret a statutory amendment to allow revival of prescribed | ycauses of action, “the substantive rights of the defendant would be materially changed because he would be stripped of this acquired defense.” The court then ruled that it would “require, at the very least, a clear and unequivocal expression of intent by the legislature for such an ‘extreme exercise of legislative power.’ ” Id. Finding no clear expression of intent regarding the amended code article at issue, the Supreme Court declined to apply the amendment retroactively to revive a prescribed right. Id. at 179.

In Cameron Parish School Bd. v. Acands, Inc., 96-0895, p. 10 (La.1/14/97), 687 So.2d 84, 90-91, the Louisiana Supreme Court concluded that while “the legislature’s use of the phrase ‘any action’ could ostensibly be construed to mean the legislature intended to revive already prescribed causes of action, such phrasing is far from ‘a clear and unequivocal expression of intent by the legislature.’ ” It then found “such liberal use by the legislature of the word or phrases ‘action,’ ‘any action,’ ‘all actions,’ and ‘any and all actions’ in [respective] prescriptive statutes supportive of [its] determination that the legislature, in using such wording in the statute at issue herein, has not clearly and unequivocally expressed an intent to revive an already prescribed cause of action for abatement of asbestos in La. R.S. 9:5644.” Id., 96-0895 at p. 10, 687 So.2d at 91.

Here, by its own terms, 2005 La. Acts 192 applies “to all claims existing or actions pending on its effective date.” However, the act does not clearly and unequivocally express an intent to have the act apply retroactively to revive a right. We therefore do not apply it retroactively to revive Ms. Colomb’s prescribed claim. See In re Succession of McKay, 05-603, pp. 4-6 (La.App. 3 Cir. 2/1/06), 921 So.2d 1219, 1222-23, reaching the same conclusion.

|sWe note Ms. Colomb’s argument that the matter below is a succession and not a lawsuit and that the status of an asserted intestate heir is not a cause of action. Be that as it may, the law affords the Faget heirs the vested right to plead prescription. See Chance, 93-2582, 635 So.2d at 178. The legislature has not clearly expressed its intent to deprive them of this right.

Accordingly, Ms. Colomb’s arguments in this regard are without merit.

Claims under Former La. C.C. art 198

In opposition to the trial court’s grant of summary judgment against her on her former La. C.C. art. 198 claims, Ms. Colomb argues that she is no longer required to prove acknowledgment to establish paternity and that results of DNA testing establish presumptive paternity. She argues that La. C.C. art. 198 has been repealed and that the new Art. 197 controls. Former art. 198 provided as follows:

Illegitimate children are legitimated by the subsequent marriage of their father and mother, whenever the latter have formally or informally acknowledged them as their children, either before or after the marriage.

We have discussed the efficacy of Ms. Colomb’s argument above. Her claim for paternity based on DNA evidence has prescribed and has not been revived by Act 192. Here, Ms. Colomb has failed to show the existence of any genuine issue of material fact or that the Faget heirs are not entitled to summary judgment as a matter of law, see La. C.C.P. art. 966B. Accordingly, we affirm the trial court’s judgment entering summary judgment in favor of the Faget heirs on this issue. Ms. Co-lomb’s arguments in this regard lack merit.

1 aConstitutionality

We decline to consider Ms. Co-lomb’s arguments regarding the constitutionality of La. C.C. arts. 198 and 209. A constitutional challenge must be specially pled in the trial court with the grounds for the claim particularized. Mallard Bay Drilling, Inc. v. Kennedy, 04-1089, p. 9 (La.6/29/05), 914 So.2d 583, 541. Ms. Colomb raised the issue for the first time in a motion ■ for new trial filed with the trial court. Since the issue was not properly raised in the trial court, and was not considered by the trial court, we will not address it now.

DECREE

For the foregoing reasons, we overrule the Faget heirs’ exception of no cause of action that was filed for the first time in this court and was not ruled on by the trial court. Further, we conclude Ms. Colomb’s assignments of error are without merit, and we affirm the judgment of the trial court. Particularly, we affirm the judgment of the trial court maintaining the Faget heirs’ exception of prescription as to Ms. Colomb’s claim arising under La. C.C. art. 209 and dismissing them with prejudice. We further affirm the judgment of the trial court granting the Faget heirs’ motion for summary judgment and entering judgment dismissing with prejudice Ms. Colomb’s La. C.C. art. 198 claim for filiation. Costs of this appeal are assessed to Kerri Louise Colomb.

EXCEPTION OF NO CAUSE OF ACTION OVERRULED; AFFIRMED

CARTER, J., concurs.

      . The defendants/appellees are Pier Marie Faget Jenkins, Independent Administratrix of the succession and heir, Vivian Adelaide Fag-et, heir, and William Edward Faget, heir.

      . Louisiana Code of Civil Procedure art. 2163 authorizes us to consider this exception that was raised for the first time in this court.

      . See Griffin v. Succession of Branch, through Smith, 479 So.2d 324, 327 (La.1985) where the Louisiana Supreme Court explained:
      [T]hose children who do not fall into one of the enumerated classes (i.e. presumed legitimately filiated under Article 184, legitimated under Article 198, or formally acknowledged under Article 203) must institute an Article 209 filiation proceeding. As to those classes of children enumerated in the article, there is no provision for an Article 209 filiation action. We conclude that children who fall into one of the enumerated classes contained in Article 209 are not precluded from instituting a filiation action under that article, they are merely relieved of the obligation to do so by operation of law.

      . Current Louisiana Civil Code art. 197 now provides for a child's claim for paternity as follows:
      A child may institute an action to prove paternity even though he is presumed to be the child of another man. If the action is instituted after the death of the alleged father, a child shall prove paternity by clear and convincing evidence.
      For purposes of succession only, this action is subject to a peremptive period of one year. This peremptive period commences to run from the day of the death of the alleged father.

      . Whether the legislature can lawfully deprive a party of this vested right is not before us, and we make no comment on the legality of such action. We only rule in this regard that the legislature has not clearly attempted to do so.


author: SUSAN M. CHEHARDY, Judge, Ad Hoc.

text:
    Rodney J. STRAIN, Jr. in his Capacity as Sheriff of St. Tammany Parish v. Clare W. TRINCHARD, Esq., Leigh Ann Schell, Esq. Trinchard & Trinchard, L.L.C. and Northwestern National Insurance Company of Milwaukee, Wisconsin.
    No. 2005 CA 1433.
    Court of Appeal of Louisiana, First Circuit.
    June 9, 2006.

      Mark W. Smith, Metairie, Counsel for Appellant/ Intervenor Gerald Burge.
    Charles M. Hughes, Jr., Craig J. Robi-chaux, Gary L. Hanes, Mandeville, Counsel for Plaintiff/Appellee Rodney J. Strain, Jr.
    Bruse A. Cranner, New Orleans, Counsel for Intervenor/Appellee H.S. Stanley, Jr.
    Nancy J. Marshall, New Orleans, Counsel for Defendant/Appellee Northwestern National Insurance Company.
    Gus A. Fritchie, III, James L. Trinch-ard, New Orleans, Counsel for Defendants/Appellee Trinchard & Trinchard.
    Panel composed of Ad Hoc Judges JAMES L. CANELLA, MARION F. EDWARDS and SUSAN M. CHEHARDY.
   SUSAN M. CHEHARDY, Judge, Ad Hoc.

13At issue in this appeal is whether inter-venor, Gerald Burge, has a right of action against defendants, the law firm of Trinch-ard & Trinchard, L.L.C. and Leigh Ann Schell, an attorney. To properly consider the merits of the appeal of the grant of the no right of action exception brought by the defendants, it is necessary to review the lengthy and complex history of this matter.

In 1980, Douglas Frierson was found murdered in St. Tammany Parish. The crime was investigated by Deputy Gary Hale, a detective with the St. Tammany Parish Sheriffs Office. Deputy Hale left the St. Tammany Parish Sheriffs Office in 1981, leaving all of the evidence accumulated in the investigation of the crime with the Sheriffs office. In 1985, Gerald Burge was tried and convicted of the murder of Douglas Frierson in St. Tammany Parish. In 1990, Mr. Burge filed a Petition for Post-Conviction Relief, based on information disclosed by E.J. Hermann, Jr. who was Chief of Detectives for the St. Tammany Parish Sheriffs Office at the time of the original investigation. Pursuant to the hearing on ^plaintiffs post-conviction relief petition, the court found that previously undisclosed, pertinent exculpatory reports and documents from the Frierson murder investigation were withheld from defendant. Mr. Burge was granted a new trial in 1990. Mr. Burge was found not guilty in a second trial in 1992.

In 1991, Mr. Burge filed a civil suit in federal court against Deputy Hale and Patrick Canulette, the St. Tammany Parish Sheriff, the St. Tammany Parish Sheriffs Office, the District Attorney of St. Tammany Parish and members of his staff. Subsequently, Mr. Burge amended the suit to include Northwestern National Insurance Company of Milwaukee, WI. (Northwestern), the company which insures the St. Tammany Parish Sheriffs Office.

Shortly before the trial on the' matter, Mr. Burge and Northwestern entered into a settlement agreement, whereby Mr. Burge accepted $75,000.00, giving a full release to Northwestern, and a partial release to the Sheriff and Mr. Hale, with the release of the Sheriff and Mr. Hale limited to the time period September 1, 1980 to September 1, 1983, and excluding Mr. Burge’s claim for exemplary damages.

The matter went to a trial on the merits, resulting in a judgment against both the Sheriff and Mr. Hale. The potential value of the judgment totals over $7,000,000.00. The Sheriff appealed the judgment; however, Mr. Hale did not and the judgment against him is now final. Because Mr. Hale had no significant assets, involuntary bankruptcy proceedings were instituted against him.

The action in which the judgment at issue in this appeal was rendered derived from the above events. In March of 2003, the current sheriff of St. Tammany Parish, Rodney J. Strain, Jr., filed an action in his official capacity against Northwestern, the law firm of Trinchard & Trinchard, and two of its attorneys, Clare W. Trinchard and Leigh Ann Shell. The petition makes l.qallegations of legal malpractice against the lawyers, breaches of fiduciary duties of good faith and fair dealing, and fraud against Northwestern.

According to the allegations made in the petition, American Druggists’ Insurance Company issued a policy of insurance covering the St. Tammany Sheriffs Office, including Deputy Hale. The policy period extended from September 1, 1980 to September 1, 1983. Effective September 1, 1981, the policy was amended to increase the limits of liability from $100,000.00 per occurrence to $1,000,000.00 per occurrence.

Northwestern, which assumed responsibility for the American Druggists’ policy answered Mr. Burge’s complaint in the federal civil suit against the Sheriff and Deputy Hale in July of 1994. Northwestern was represented in that federal suit by Clare W. Trinchard, Esq. who had an ownership interest in the law firm of Trinchard & Trinchard, L.L.C. The answer denied coverage for the Sheriff and Deputy Hale. In the alternative, the answer plead that if coverage was found, the amount of coverage was $100,000.00, not the amended amount of $1,000,000.00.

At first, Northwestern refused to provide a defense for either the Sheriff or Deputy Hale. However, approximately one year after the answer was filed Northwestern undertook to defend Deputy Hale and the Sheriff, limiting its exposure to the policy period which was from September, 1980 to September 1, 1988. At that point, Clare Trinchard enrolled as counsel for the Sheriff and Deputy Hale. About two months later, Ms. Trinchard abandoned her representation of Northwestern. Northwestern was now represented by Michele Gaudin, Esq., who was “of counsel” with Trinchard & Trinchard, L.L.C. The petition alleges that Ms. Gaudin’s law firm “shared office space and certain resources and business relationships with Trinchard & Trinchard, L.L.C.”

Ms. Gaudin filed a Motion for Summary Judgment on behalf of Northwestern asserting no coverage, or in the alternative, a declaration that the |filower policy limits were applicable. Ms. Trinchard, in her role as counsel of record for Mr. Hale and the Sheriff, failed to oppose the motion, although it appears from the petition that the Sheriffs private counsel did oppose the motion.

Ultimately, the motion for summary judgment was denied and settlement discussions began. Subsequently, counsel for Mr. Burge made an in globo settlement offer of $800,000.00, which was refused by Northwestern. About two months after this refusal, when defendant Leigh Ann Schell still represented the Sheriff and Mr. Hale, she sent an opinion letter to a claims person for Northwestern in which she stated:

While the plaintiff has not previously made this connection, the fact that the policy issued for the first year was ‘can-celled’ and ‘replaced’ by the manuscript policy within a three year period without specifically reserving the lower limit for occurrences during the first policy year weighs in favor of applying the higher limit to any occurrence during the three years.
In addition, I have located some correspondence in the file which would support the conclusion that $1,000,000 in coverage was intended. Particularly, the notes written on a letter from American Druggists’ to Hayden Insurance Agency dated November 3, 1980 appear instructive. It seems that it was contemplated that $1,000,000 in coverage would be obtained.

In conclusion, Ms. Schell wrote:

In short, Northwestern’s best option is to settle with the plaintiff, obtaining a release for Gary Hale and Patrick Canu-lette for any liability related to September 1, 1980 through September 1, 1983....
.. .Burge would likely not be willing to release the Sheriff for uninsured exposure since the Sheriffs self-insured fund is inadequately funded which may result in Burge executing a judgment against the sheriffs office.

The petition alleges that Ms. Schell did not transmit that information to either the Sheriff or Mr. Hale, in violation of her duty to seek and secure as much coverage as possible for her clients.

A Petition of Intervention in that lawsuit was filed by H.S. Stanley, Jr., in his capacity as the Trustee of the Bankruptcy Estate of Gary Hale. The petition |7adopts the allegations of legal malpractice and fraud, and names the same defendants. That petition survived an exception of no right/no cause of action filed by the defendants.

Subsequently, a Petition of Intervention was filed by Gerald Burge, appellant herein. In that petition Mr. Burge adopted the allegations in the main petition filed by Mr. Strain, as well as the allegations made in the petition of intervention filed by Mr. Stanley. Mr. Burge also alleges he has a final, nonappealable judgment in his favor against Gary Hale in excess of $7,500,000.00. Mr. Burge reasons that because he is a creditor in Mr. Hale’s bankruptcy, he is a “person of interest” in the original petition for damages as a result of legal malpractice.

Defendants, Trinchard & Trinchard, L.L.C. and Leigh Ann Schell, filed an exception of no cause/no right of action to Mr. Burge’s intervention. In support of that exception, defendants argued that they did not represent Mr. Burge in any litigation. They argue further that the mere fact that Mr. Burge is a creditor of Mr. Hale does not give rise to a sufficient interest to support his intervention in this lawsuit. In response to the exception raised by defendants, Mr. Burge amended his petition to add paragraphs asserting a misrepresentation claim against Northwestern Insurance Company related to the coverage provided for the damages sustained by Mr. Burge.

Subsequently, plaintiff Rodney J. Strain, Jr. filed an exception of no cause/no right of action to the intervention of Mr. Burge. Sheriff Strain opposed the intervention of Mr. Burge on the basis that any claim against defendants should be brought in federal court where these same issues are pending. After a hearing on the matter, the trial court maintained the exception dismissing both the original Petition of Intervention and the supplemental and amending petition without prejudice. It is that judgment that is the focus of this appeal.

|sIn contrast to the complicated and convoluted history of this case, the issue before this court is straightforward and concise. Does Gerald Burge have a right of action against the defendants in this malpractice suit?

In brief to this court, Mr. Burge concedes that he does not have a claim for legal malpractice against Leigh Ann Shell, Claire W. Trinchard, or Trinchard & Trinchard. However, he argues that he does have a cause of action against Northwestern Insurance Company for misrepresentation of pertinent facts. Therefore, he reasons that he also has a cause of action against the legal representatives of Northwestern.

We are not persuaded by Mr. Burge’s argument. This court recently set forth the law in this area in Treasure Chest Casino, L.L.C. v. Parish of Jefferson, 96-1010 (La.App. 1 Cir. 3/27/97), 691 So.2d 751.

The objection of no right of action tests whether the plaintiff has a “real and actual interest” in the suit. Stated another way, an exception of no right of action determines “whether the plaintiff belongs to the particular class to which the law grants a remedy for the particular harm alleged.” The exception is appropriate when the plaintiff does not have an interest in the subject matter of the suit or legal capacity to proceed with suit in a particular case.

(citations omitted)

Id. 691 So.2d at 754

The requirements to show a right of action or interest in the matter by an intervenor are twofold: a justiciable interest in, and a closely related connexity to, the principal action. Mike M. Marcello, Inc. v. Louisiana Gaming Control Bd., 04-0488 (La.App. 1 Cir. 5/6/05), 903 So.2d 545, 548.

In the matter before us, intervenor Gerald Burge argues his position of judgment creditor in the Hale bankruptcy proceedings, and the allegations of misrepresentation by Northwestern are sufficient to meet the requirements for stating a right of action as an intervenor. We disagree.

We find no law to support Mr. Burge’s argument that he has a right to assert claims in bankruptcy for Mr. Hale. The proper person to assert those claims is the | ^bankruptcy trustee. 11 U.S.C.A. § 323; Jones v. Chrysler Credit Corp., 417 So.2d 425 (La.App. 1 Cir.1982); writ denied, 420 So.2d 456 (La.1982); cert denied 459 U.S. 1114, 103 S.Ct. 747, 74 L.Ed.2d 966 (1983). Further, those claims have been asserted properly by the Stanley intervention.

Mr. Burge’s claim against Northwestern is based on La. R.S. 22:1220(b)(l) and 22:1220(b)(3), which creates a limited cause of action against an insurance company in favor of a third party. See; Theriot v. Midland Risk Insurance Company, 694 So.2d 184 (La.1997). While, that may state a cause of action in a separate proceeding, it raises a new claim in this legal malpractice action. That is not permitted in intervention.

The intervenor takes the proceedings as he finds them. The intervenor cannot change the issue between the parties, and cannot raise a new one. An intervenor’s rights are so restricted because he always can always assert his claim in a separate action. Mike M. Marcello, Inc. v. Louisiana Gaming Control Bd, supra. We believe that Mr. Burge must pursue his claims against Mr. Hale in the bankruptcy proceedings. Further, because his claims against Northwestern and its representatives present new issues in this legal malpractice action, it is improper for intervention. We also note that Mr. Burge’s claims were dismissed without prejudice, leaving the opportunity open for him to pursue his claims in an appropriate action.

For the foregoing reasons, we find the trial court did not err as a matter of law in maintaining the exception of no right of action. Accordingly, we affirm the- judgment.

AFFIRMED.

      . It appears that after preliminary proceedings, all defendants except the Sheriff and Mr. Hale were released from the law suit.


author: THOMAS F. DALEY, Judge Ad Hoc.

text:
    Hermann MOYSE, III & Janet D. Moyse v. THE CITY OF BATON ROUGE, the Parish of East Baton Rouge & Dale Spillman.
    No. 2005-CA-1353.
    Court of Appeal of Louisiana, First Circuit.
    June 9, 2006.

      Floyd J. Falcon, Jr., Avant & Falcon, Baton Rouge, Counsel for Plaintiffs/Appellants.
    E. Wade Shows, Parish Attorney, Lea Anne Batson, Special Assistant Parish Attorney, Gwendolyn K. Brown, Assistant Parish Attorney, Baton Rouge, Counsel for Defendants/Appellees.
    Panel composed of Ad Hoc Judges EDWARD A. DUFRESNE, Jr., THOMAS. F. DALEY, and FREDERICKA HOMBERG WICKER.
   THOMAS F. DALEY, Judge Ad Hoc.

12Plaintiffs, Hermann and Janet Moyse, appeal the denial of their petition for a Writ of Mandamus. On appeal, they argue the following two errors of the trial court:

1. The trial court erred in determining that the question of whether LSA-R.S. 33:4727 provides the exclusive method of appeal from an adverse decision of the Board of Adjustment was not before the Court and/or had no relevance to the question of whether plaintiffs were entitled to a Writ of Mandamus; and
2. The trial court erred in determining that the issuance of a building permit to the Moyses was a discretionary act, given the fact that no valid appeal of the decision of the Board of Adjustment had been timely filed: once the order of the Board was final, issuing their building permit was no longer a discretionary act.

The defendants, The City of Baton Rouge/Parish of East Baton Rouge and Dale Spillman, have filed a Peremptory Exception of Prescription in this Court, arguing that because the plaintiffs did not properly appeal the decision of the Planning Commission, their cause of action for a building permit has prescribed.

laAfter thorough consideration of the record and the applicable law, for the reasons below assigned, we vacate the judgment of the trial court, and remand for further consideration. We deny the Exception of Prescription.

FACTS AND PROCEDURAL HISTORY

On April 30, 2004, Hermann Moyse, III and his wife, Janet, purchased Lot 4B in University Acres subdivision at municipal address 5926 Boone Avenue, Baton Rouge. On November 3, 2004, the Moyses filed an Application for Waivers with the Metropolitan Board of Adjustment. On December 20, 2004, the Board granted the Moyses’ request for waivers.

On December 27, 2004, a resident of University Acres, Adam Bourgoyne, appealed the Board of Adjustment’s decision to the Metropolitan Planning Commission. On February 21, 2005, the Planning Commission reversed the Board of Adjustment.

Because The City of Baton Rouge never issued a permit to the Moyses, on March 24, 2005, they filed a Petition for Writ of Mandamus, requesting that the defendants be ordered to grant them a building permit to begin construction of their residence in accordance with the waivers granted by the Board of Adjustment. The basis of appellants’ suit is their contention that the exclusive method of challenging a decision by the Board of Adjustment is by filing a Petition for Judicial Review in the Nineteenth Judicial District Court within thirty days of the decision of the Board of Adjustment, as provided in LSA-R.S. 33:4727, not by appeal to the Planning Commission. Since no appeals were taken to the district court, the Moyses argue, the decision of the Board became final and they are entitled to issuance of their building permit.

|4The Petition for Writ of Mandamus was heard on April 22, 2005. In his oral reasons for ruling, the trial court essentially agreed with plaintiffs’ position that LSA-R.S. 33:4727 provided the exclusive method for appealing a decision of the Board of Adjustment, but declined to formally reach the issue. He nevertheless denied the Writ of Mandamus, finding that the issuance of a building permit was a discretionary act under LSA-R.S. 33:4773, and thus, a Writ of Mandamus would not lie. Plaintiffs filed this appeal.

Defendants filed, in this Court, an Exception of Prescription, arguing that the decision of the Planning Commission became final after appellants failed to appeal to the Metropolitan Council, as per Section 3.3 of the Unified Development Code.

On appeal, the appellants argue that the court must reach the issue of the applicability of LSA-R.S. 33:4727, because whether the issuance of their building permit became a ministerial duty once appeal delays expired depends upon resolution of whether R.S. 33:4727 applies to this case, or whether the appeal from the Board of Adjustment is governed by Section 3.3 of the Unified Development Code.

ENTITLEMENT TO WRIT OF MANDAMUS

A Writ of Mandamus may be directed to a public officer to compel the performance of a ministerial duty required by law. LSA-C.C.P. Art. 3863. In mandamus proceedings against a public officer involving the performance of an official duty, nothing can be inquired into but the question of duty on the face of the statute and the ministerial character of the duty he is charged to perform.

The trial court denied the Writ of Mandamus based upon LSA-R.S. 33:4773(D), which at the time of trial, stated the following:

| ¡{The performance of any enforcement procedure in connection with any building code shall be deemed to be a discretionary act and shall be subject to the provisions of R.S. 9:2798.1. In connection with the construction of any building, structure, or other improvement to immovable property, neither the performance of any enforcement procedure nor any provision of a building code shall constitute or be construed as a warranty or guarantee by an enforcement agency as to durability or fitness, or as a warranty or guarantee by an enforcement agency that said building, structure, or other improvement to immovable property or any material, equipment, or method or type of construction used therein is or will be free from defects, will perform in a particular manner, is fit for a particular purpose, or will last in any particular way. (emphasis added)

LSA-R.S. 33:4771 defines “enforcement procedure” as:

“Enforcement procedure” means any act, action, or failure to take action by a public servant or enforcement agency in connection with the implementation of any provision of a building code, including but not limited to the examination or review of any plan, drawing, or specifications, the conducting or completion of any inspection, the issuance, denial, or revocation of any permit, permission, license, or certificate, and the granting of any approval of construction.

It appears clear on the face of the above statutes that the issuance of a building permit was, at the time this suit was filed and decided, a discretionary act. The Moyses argue, however, that after the appeals delays of LSA-R.S. 33:4727 ran, the Board of Adjustment’s decision to grant waivers became final and therefore, defendants’ duty to issue their building permit became ministerial, rather than discretionary.

While this Court recognizes the logic in plaintiffs’ argument, LSA-R.S. 33:4771 and 4773 do not draw the distinction that plaintiffs argue. Further, plaintiffs’ entitlement to mandamus under those statutes, under the argument they advanced, could not be made without analysis of the competing appellate provisions noted above. Therefore, the trial court was correct in its finding that mandamus was not an available procedural remedy for plaintiffs under these facts. | r,The trial court noted, however, that plaintiffs were not without other procedural remedies, such as a suit for declaratory judgment.

Interestingly, Acts 2005, 1st Ex.Sess., No. 12, § 1 amended LSA-R.S. 33:4773, deleting the “discretionary act” language from the beginning of subsec. D, effective November 30, 2005, during the pendency of this appeal. The trial court relied upon this language in denying the Writ of Mandamus. While we find that that trial court made a correct ruling at the time, we vacate the ruling and remand for the trial court to reconsider the case in light of the amendment to LSA-R.S. 33:4773 as noted above, and rule accordingly.

EXCEPTION OF PRESCRIPTION

Defendants argue that the plaintiffs’ cause of action for issuance of a building permit is prescribed because they did not properly appeal the decision of the Planning Commission to the Metropolitan Council, as per Section 3.3 of the Unified Development Code, but instead filed their Petition for Writ of Mandamus in the district court. Defendants argue that the planning and zoning authority of The City of Baton Rouge and the Parish of East Baton Rouge emanates not from the State enabling statute, LSA-R.S. 33:101 et seq., but from the provisions of the Home Rule Charter, Act 169 of 1898. Defendants argue that under the police power provisions of the Home Rule Charter, the City-Parish already had the authority to create such a Board, and therefore, the right to restrict its authority, citing Article YI, Sections 4, 6, and 15 of the La. Constitution of 1974, which state, in pertinent part:

|7§ 4. Existing Home Rule Charters and Plans of Government
Section 4. Every home rule charter or plan of government existing or adopted when this constitution is adopted shall remain in effect and may be amended, modified, or repealed as provided therein. Except as inconsistent with this constitution, each local governmental subdivision which has adopted such a home rule charter or plan of government shall retain the powers, functions, and duties in effect when this constitution is adopted. If its charter permits, each of them also shall have the right to powers and functions granted to other local governmental subdivisions.
§ 6. Home Rule Charter or Plan of Government; Action by Legislature Prohibited
Section 6. The legislature shall enact no law the effect of which changes or affects the structure and organization or the particular distribution and redistribution of the powers and functions of any local governmental subdivision which operates under a home rule charter.
§ 15. Local Governmental Subdivisions; Control Over Agencies Section 15. The governing authority of a local governmental subdivision shall have general power over any agency heretofore or hereafter created by it, including, without limitation, the power to abolish the agency and require prior approval of any charge or tax levied or bond issued by the agency.

The language in the Unified Development Code establishing both the Board of Adjustment and the Planning Commission directly refutes and contradicts defendants’ assertion that these agencies were established pursuant to the provisions of the Home Rule Charter: the language, highlighted below, clearly shows that these agencies were established pursuant to state law.

Section 3.03 of the Unified Development Code states:

The Planning Commission shall constitute a Parish Planning Commission in respect of that portion of the Parish outside the City of Baton Rouge and other municipalities and shall in that capacity have all the powers and duties conferred or imposed on Parish Planning Commissions by the General Laws of the State. The Planning Commission shall likewise constitute a City Planning Commission for the City of Baton Rouge and in that capacity shall have all the powers and duties conferred or imposed on City Planning Commission by the General Laws of the State, (emphasis added)

IsSection 3.101 of the Unified Development Code created the Board of Adjustment. It states:

A Board of Adjustment is hereby established. The membership of the Board of Adjustment, the terms of office, and the rights and duties of the said Board shall be provided in Title 33, Section 4727 of the Revised Statutes of Louisiana, (emphasis added)

These provisions of the Unified Development Code refer directly to the general laws of the state regarding the powers and duties of the Planning Commission. The powers and duties of the Planning Commission are found at LSA-R.S. 33:101 et seq. According to R.S. 33:103(F), where a parish or municipality has adopted a home rule charter and such charter provides for the establishment of a planning commission, the provisions of this Subpart concerning membership, appointment, organization, and structure shall not be applicable. In such case, any parish or municipality with a home rule charter may avail itself of the power and authority granted herein to a planning commission. (Emphasis added)

In forming the Planning Commission, The City of Baton Rouge and Parish of East Baton Rouge created a structure of local government whose powers and functions remained subject to the Constitution and laws of the State. Nothing in LSA-R.S. 33:101 et seq. purports to grant appellate jurisdiction of any kind to the Planning Commission. According to LSA-R.S. 33:103(F), only the provisions of that Sub-part pertaining to membership, appointment, organization, and structure shall not be applicable, at the choice of the parish or municipality with a Home Rule Charter. Appellate jurisdiction over another agency is not on that list. The authors of the Unified Development Code were not free to grant the Planning Commission appellate jurisdiction over the Board of Adjustment’s decisions, |9when, under La. Const. Article V, § 16 and LSA-R.S. 33:4727, the same was already granted to the district court.

Because the Unified Development Code’s grant of appellate jurisdiction to the Planning Commission over the Board of Adjustment is contrary to State law, its decision to reverse the Board of Adjustment is illegal and has no effect. Under these facts, plaintiffs were not required to appeal the Planning Commission’s decision to the Metropolitan Council. Therefore, we deny the defendants’ Exception of Prescription.

Accordingly, for the reasons assigned, we deny the defendants’ Exception of Prescription. We vacate the judgment of the trial court and remand for reconsideration as noted above.

EXCEPTION OF PRESCRIPTION DENIED; VACATED AND REMANDED.

      . The case was assigned to Judge William A. Morvant. The parties agreed to the matter being heard by Judge R. Michael Caldwell, due to Judge Morvant's absence.

      . Plaisance v. Davis, 03-0767 (La.App. 1 Cir.11/7/03), 868 So.2d 711.

      . As provided in Section 3.3:
      Any person or persons, jointly or severally, aggrieved by a decision of the Board of Adjustment, or any taxpayer, or any officer, department, board or bureau of the City-Parish may appeal the decision of the Board to the Planning Commission by filing a written request with the Planning Director within ten (10) calendar days of notice of the decision stating the reason or reasons for the appeal.
      An appeal to the Metropolitan Council of the Planning Commission decision may be made by submitting a written request to the Council Administrator stating the reason or reasons for the appeal within the (10) calendar days of receipt of the Planning Commission's decision.

      . Old Jefferson Civic Ass’n, Inc. v. Planning Commission for City of Baton Rouge and East Baton Rouge Parish, 364 So.2d 193 (La.App. 1 Cir.1978).

      . Article V, § 16(B) of the La. Constitution of 1974 specifically states: "A district court shall have appellate jurisdiction as provided by law.”


text:
    Suzanne Alycia Fries HERNANDEZ v. Mark Pio HERNANDEZ.
    No. 2005-CA-1342.
    Court of Appeal of Louisiana, First Circuit.
    June 9, 2006.

      Donna W. Lee, Lee & Walsh, Baton Rouge, Counsel for Plaintiff/Appellee.
    Mark P. Hernandez, In Proper Person, Baton Rouge, Counsel for Defendant/Appellant.
    Panel composed of Ad Hoc Judges EDWARD A. DUFRESNE, Jr., THOMAS F. DALEY and FREDERICKA HOMBERG WICKER.
   FREDERICKA HOMBERG WICKER, Ad Hoc Judge.

|gMark Pio Hernandez (Mr. Hernandez) appeals a judgment denying his rule for increase in child support. For the following reasons, we affirm the judgment of the trial court.

Mr. Hernandez, and appellee, Suzanne Alyeia Fries Hernandez (Dr. Boucher), were married in Baton Rouge, Louisiana on September 2, 1989. Two children were born of the marriage: Michael Blaise Hernandez, born on May 10, 1991, and Brian Joseph Hernandez, born on March 12, 1995. On January 16, 1997 Dr. Boucher filed a petition seeking a divorce under La.C.C. art. 102 and child support; Mr. Hernandez answered and as plaintiff-in-reconvention requested child support.

A stipulated judgment was rendered on February 4, 1997 and signed on March 14, 1997. Dr. Boucher was ordered to pay Mr. Hernandez the sum of |->$1,250.00 per month in child support; the right of either party to seek a modification in support without the need to initially show a change in circumstances was reserved. On September 3, 1997 a judgment of divorce was rendered under La.C.C. art. 102; all previous orders of the court were to remain in full force and effect pending a trial on the merits. On May 11, 1998, Dr. Boucher filed a “Rule for Change of Custodial Plan, Change of Custody and Contempt” asserting that she had reason to believe that Mr. Hernandez had either improved his income status or had the opportunity to do so since the February, 1997 judgment, and was capable of contributing a larger proportion of the children’s support. Dr. Boucher asked the court to reevaluate the income earned by Mr. Hernandez, in light of his present earning capability, and to award her child support in an amount to be determined by the court in accordance with the Louisiana Child Support Guidelines. In a judgment signed and filed on February 23, 2000 the trial court stated that the matter of child support came before it on April 5, 1999, and after taking the issue under advisement, written reasons for judgment were rendered on December 17, 1999. The judgment found Mr. Hernandez to be voluntarily underemployed and assigned him an income of $30,000.00 per year/$2,500.00 per month; Dr. Boucher’s income was listed as $7,417.67 per month, giving them a combined monthly gross income of $9,917.67. With a basic monthly child support obligation for two children of $1,637.00, the trial court calculated that Dr. Boucher’s child support obligation was 75% of $1,637.00, or $1,227.75 per month |4and Mr. Hernandez’s child support obligation was 25% of $1,637.00, or $409.25 per month. Accordingly, the trial court ordered Dr. Boucher to pay Mr. Hernandez $409.25 per month in child support. A “Stipulated Judgment on the Rules” was rendered on January 25, 2000 and signed and filed on May 1, 2000, reiterating the above child support modification.

On November 8, 2002 Mr. Hernandez filed a “Rule for Modification of Custody & Increase in Child Support” seeking an increase in child support due to the following alleged changes in circumstances: 1) Dr. Boucher’s monthly gross income has substantially increased; 2) Dr. Boucher is deriving an economic benefit by paying her new husband, Ronald Boucher, a salary of approximately $3,000.00 per month through the community owned business, a veterinary clinic; 3) Dr. Boucher has suffered a decrease in income due to “business related changes”; 4) Mr. Hernandez is not voluntarily underemployed, as he has sought employment in his field of training, as well as other associated fields from the past few years, without success; and 5) other changes of circumstances to be shown at trial.

In a judgment rendered on September 15, 2003 and signed and filed on October 15, 2004, the trial court denied Mr. Hernandez’s rule for increase in child support. It is from this judgment that Mr. Hernandez appeals in proper person.

Child support is a continuous obligation of both parents. La. R.S. 9:315(A). Children are entitled to share in the current income of both parents and should not be the economic victims of divorce. La. R.S. 9:315(A). An award of child support may be modified if the circumstances of the child or of either parent materially change. La.C.C. art. 142. An award for support shall not be increased unless the party seeking the increase shows a material change in circumstances of one of the | ^parties between the time of the previous award and the time of the motion for modification of the award. La. R.S. 9:311(A). Therefore, the party seeking modification of a child support award bears the burden of proving that a change in circumstance has occurred. Folse v. Folse, 01-0946 (La.App. 1 Cir. 5/10/02), 818 So.2d 923, 925. Once the moving party proves a change in circumstance, a presumption exists that the support obligation must be modified. Id. The burden then shifts to the other party to disprove the change or otherwise overcome the presumption. Id.

On appeal, Mr. Hernandez asserts that the trial court erred in denying his rule because there have been changes in both he and Dr. Boucher’s circumstances, warranting a modification in child support.

In making its ruling, the trial court stated that “the court simply can’t determine what your (Mr. Hernandez) income is and, therefore, doesn’t have to get to whether or not Dr. Boucher has experienced a change in income because you did not tell me what you income is, Mr. Hernandez.” We find that the trial court erred in not considering Mr. Hernandez’s allegations that Dr. Boucher’s income has substantially increased. Because the evidence necessary for this review is contained in the record, we will conduct a de novo review of the facts to determine whether there has been a material change in Dr. Boucher’s circumstances.

Mr. Hernandez urges that Dr. Boucher’s income has substantially increased, despite the fact that it is not reflected in her reported income for purposes of calculating child support. He contends that Dr. Boucher is underreporting her | ^income by improperly paying certain personal expenses, namely Mr. Boucher’s and her nanny’s salaries, out of the gross profits of the veterinary clinic.

Mr. Hernandez asserts that Dr. Boucher is underreporting her income by improperly paying Mr. Boucher a salary of $3,000.00 to $3,500.00 per month for his job as office manager at the veterinary clinic. Mr. Hernandez contends that when you consider Mr. Boucher’s work hours, job duties, and level of involvement in the business, he is being overpaid by the clinic. Therefore, Mr. Boucher’s salary should be included in whole or in part as Dr. Boucher’s income, for the purposes of calculating the child support payment.

Dr. Boucher testified that the veterinary clinic pays Mr. Boucher, who has a law enforcement background, an amount comparable to the cost of hiring someone to handle security and surveillance for the clinic, approximately $3,000.00 per month. She stated that Mr. Boucher’s job duties include security for the clinic; he accompanies her if she needs help at night and attends “farm calls” with her. Mr. Boucher testified that in his management position with the veterinary clinic, he is tasked with a wide range of responsibilities, including handling security, personnel problems, building maintenance and repair, grounds upkeep, and bill collection. He manages “anything that needs managing that [Dr. Boucher] can’t get to.” Mr. Hernandez testified his work hours can vary, including going to the clinic at night to manage problems, such as verifying that the clinic is secure. On the evidence presented, we find that Mr. Boucher’s salary does not appear unreasonable.

We are mindful of La. R.S. 9:315(C)(5)(c) that provides as follows:

c) The court may also consider as income the benefits a party derives from expense-sharing or other sources; however, in determining the ^benefits of expense-sharing, the court shall not consider the income of another spouse, regardless of the legal regime under which the remarriage exists, except to the extent that such income is used directly to reduce the cost of a party’s actual expenses.

However, after reviewing the record in this manner, we find, pursuant to the above statute, that Mr. Boucher’s salary should not be attributed to Dr. Boucher’s income for purposes of determining child support.

Further, Mr. Hernandez argues that Dr. Boucher is underreporting her income by improperly paying her nanny’s salary, a personal expense, out of the veterinary clinic business account. Dr. Boucher testified she does pay the nanny out of the clinic’s business account, pursuant to her CPA’s recommendation. Mr. Hernandez asserts that the nanny’s entire salary should be added to Dr. Boucher’s income for the purpose of calculating child support payments.

Without addressing Mr. Hernandez’s contention that Dr. Boucher’s payment of a live-in nanny out of the clinic business account is a violation of federal, state, and local tax laws, we will, for analysis purposes, do as Mr. Hernandez suggests, and impute the nanny’s salary to Dr. Boucher’s income.

Dr. Boucher testified that she pays the nanny $200.00 per week, for a total of $10,400.00 a year. Were we to impute the nanny’s entire salary to Dr. Boucher, this would create a change in circumstances. However, a party seeking an increase in child support must show a material change in circumstances of one of the parties between the time of the previous award and the time of the motion for modification of the award. La. R.S. 9:311(A). Comment 2001(a) to La. R.S. 9:311 provides that a material change in circumstances is defined as a change in circumstance having real importance or great consequences for the needs of the child or the ability to pay of either party.

| sIn the present case, Dr. Boucher testified that she now has a total of six children—the two Hernandez boys living with her 50% of the time and four additional children, including very young triplets born in July 2002, living with her fulltime. She further testified that in addition to the responsibility of six children, she has a veterinary practice which frequently requires her to handle emergencies outside of the home at night. Dr. Boucher stated that the nanny was hired to help her with the children when her business mandates that she be away from home. There is no evidence that the nanny does not receive the entire $10,400.00 per year. Nor is there any evidence that the payment of $200.00 per week for the care of four to six children is an exorbitant amount. Therefore, we find that although the addition of $200.00 per week to Dr. Boucher’s income would be a change in circumstances, it would not be a material change in circumstances, considering the necessary expense of a caregiver for Dr. Boucher’s six young children.

Mr. Hernandez further contends that the entire lease payment of $3,000.00 per month, now paid by the veterinary clinic to Dr. Boucher and her new husband, for the lease of their personal property to the clinic, should also be added to Dr. Boucher’s gross income. Dr. Boucher testified that she and Ronald own the building which the veterinary clinic uses. Therefore, the clinic pays them $3,000.00 per month for the lease of the property, making her half of the rental income $1,500.00; Dr. Boucher included $1,500.00 in rental income in her gross income calculation. Dr. Boucher also testified that this $3,000.00 lease payment is offset by their (Dr. and Mr. Boucher) $3,000.00 per month debt to Hibernia for the clinic. Therefore, we find this assignment of error without merit.

This completes our de novo review of the facts to determine whether there has been a material change in Dr. Boucher’s circumstances. We find that the evidence presented does not show a material change in her circumstances.

|9We will next review the trial court’s determination that the evidence presented does not show a material change in circumstances as to Mr. Hernandez’s income. The determination of whether a material change of circumstances has occurred is a question of fact and will not be disturbed absent manifest error. Watson v. Watson, 39,458 (La.App. 2 Cir. 3/2/05), 894 So.2d 1263, 1266.

Mr. Hernandez asserts that he has had a change in circumstance; he has been employed since the divorce and therefore should not be considered voluntarily underemployed. The record indicates that Mr. Hernandez runs his own business, Premiere Benefits, LLC (Premiere). Mr. Hernandez testified that he started his business in approximately March of 2000. Initially, he had an office, a partner and seven or eight employees. After buying his partner out, he slowly begin to “out source all of the work that’s done normally at the office.” He maintains the office for two reasons, tax write-offs/business expenses, and “hopefully” to build the business to a point to where he does need employees in the future. He is “trying to put as much money as [he] can into marketing to build that up to where that is a larger business to where [he] can have people there and even allow [himself] more freedom.” Mr. Hernandez further testified that he works approximately “five to seven hours, five to seven days a week... although, there are times that [he] actually spent day and night at the office.” At home, he usually works on computer contracts and “things of that nature” after 9:30p.m., when he has custody of the boys. He stated that his job pays him enough money to support himself and his children. However, the record indicates that he only received $6,901.00 in income from his business in 2002. Further, Mr. Hernandez admitted that he does pay personal expenses out of the business account; he explained, “whenever I pay something out of the business that is not a business expense, I list it as a distribution from my business.” However, according to Mr. Hernandez, not all | inchecks that are distributions are listed as such on the check; instead, he lists them as distributions on Quicken for his accountant, to indicate that it is a personal expense, rather than a business expense.

A party shall not be deemed voluntarily unemployed or underemployed if he or she is absolutely unemployable or incapable of being employed, or if the underemployment results through no fault or neglect of the party. La. R.S. 9:315(C)(5)(b). If a party is voluntarily unemployed or underemployed, child support shall be calculated based on a determination of his or her income earning potential, unless the party is physically or mentally incapacitated, or is caring for a child of the parties under the age of five years. Voluntary underemployment is a fact-driven consideration. Romanowski v. Romanowski, 03-0124 (La.App. 1 Cir.2/23/04), 873 So.2d 656, 662. The trial court has wide discretion in determining the credibility of witnesses and its factual determinations will not be disturbed on appeal absent a showing of manifest error. Id. In the present case, it is clear that the trial court did not find Mr. Hernandez to be a credible witness, calling his tax returns “works of fiction.” Accordingly, we find this assignment of error without merit.

Having found that Dr. Boucher’s income has not changed materially and that Mr. Hernandez’s imputed salary of $30,000.00 remains the same, we affirm the judgment of the trial court denying Mr. Hernandez’s rule for modification of child support.

AFFIRMED.

      . La.C.C. art. 102 provides that a "divorce shall be granted upon motion of a spouse when either spouse has filed a petition for divorce and upon proof that one hundred eighty days have elapsed from the service of the petition, or from the execution of written waiver of the service, and that the spouses have lived separate and apart continuously for at least one hundred eighty days prior to the filing of the rule to show cause.”

      . The record includes the trial court's "Notice of Rendition of Judgment and Written Reasons" signed and filed on December 17, 1999 wherein the trial court explains:
      After review, the Court finds that the child support must be recalculated since a true 50-50 custody arrangement has been implemented. Furthermore, the Court finds that Mr. Hernandez is voluntarily underemployed. The last year that Mr. Hernandez worked at a full time gainful employment, his annual salary was $35,000. Therefore, the Court assigns him an income of $30,000 per year.

      . We note that the basic Child Support Obligations schedule in effect at the time (La. R.S. 9:315.14) provided that when the combined adjusted monthly gross income is $9,900.00, the basic child support obligation for two children is $1,637.00.

      . La.C.C. art. 142 Comment-2001 states, in pertinent part:
      The [2001] amendment adds materially to describe the change in circumstances necessary to obtain a modification... of child support. The language overrules Stogner v. Stogner, 739 So.2d 762 (La.1999).

      . La. R.S. 9:311 Comment — 2001(a) states, in pertinent part:
      To obtain a[n]... increase in support the change in circumstances of one of the parties must be material, defined as a change in circumstance having real importance or great consequences for the needs of the child or the ability to pay of either party. The amendment specifying that the court first consider the threshold matter of materiality of the change in circumstance overrules Stogner v. Stogner, 739 So.2d 762 (La.1999), in which the Louisiana Supreme Court held that any change in circumstances is sufficient to justify a reduction or increase in child support...

      . While it is true that on appeal Mr. Hernandez argues that Dr. Boucher's payment of personal expenses from the veterinary clinic's gross profits violates certain tax code provisions, and that he did not argue the specific issue of tax violations in the trial court, his rule clearly alleged that Dr. Boucher underre-ported her income by improperly paying certain personal expenses out of the clinic’s gross profits, and he argued such in the trial court. Therefore, we find that the issue of Dr. Boucher underreporting her income by improperly paying certain personal expenses is before this Court.

      . Mr. Hernandez did not argue the issue of tax violations in the trial. Pursuant to Uniform Rules—Courts of Appeal, Rules 1-3, this Court will review only issues which were submitted to the trial court and which are contained in assignments of error, unless the interest of justice clearly requires others.


author: GAIDRY, J.

text:
    Clarence D. LEWIS v. Jim ROGERS, Warden, C. Paul Phelps Correctional Center and Cindy Hebert, Records Officer.
    No. 2005 CA 1138.
    Court of Appeal of Louisiana, First Circuit.
    June 9, 2006.
    Clarence David Lewis, DeQuiney, Plaintiff/Appellant In Proper Person.
    William L. Kline, Baton Rouge, Counsel for Defendant/Appellee Department of Public and Corrections, et al.
    Before: CARTER, C.J., DOWNING, and GAIDRY, JJ.
   GAIDRY, J.

1 /This appeal concerns the dismissal without prejudice of inmate Clarence Lewis’s petition for judicial review of an administrative decision. The trial court dismissed the petition for lack of subject matter jurisdiction because Lewis failed to exhaust his administrative remedies prior to filing suit, and Lewis appealed.

Lewis initiated his request for an administrative remedy on November 9, 2004. The First Step Response denying Lewis’s request for a remedy was dated December 20, 2004. On December 21, 2004, Lewis checked the box on the First Step Response Form indicating that he was dissatisfied with the response and wished to proceed to Step Two. Lewis then filed a petition for judicial review of the administrative decision on January 12, 2005. The commissioner’s screening report recommending dismissal without prejudice for lack of subject matter jurisdiction was issued on January 27, 2005. Lewis filed a traversal on February 22, 2005, and attached a copy of the Second Step Response Form, dated January 21, 2005, denying his request for relief. The trial court dismissed Lewis’s petition for judicial review without prejudice on March 2, 2005.

Lewis claims on appeal that the dismissal of his petition was due to an incomplete record; that is, that the trial judge did not consider the response to his second step request, which he attached to his traversal of the commissioner’s recommendation and which constituted the exhaustion of his administrative remedies, when dismissing his suit. We disagree. Louisiana Revised Statutes 15:1172(C) provides that: “If at the time the petition is filed the administrative remedy process is ongoing but has not yet been completed, the suit shall be dismissed without prejudice.” (Emphasis added). At the time Lewis filed his petition for judicial review, the 13administrative remedy process was ongoing, but not completed; thus the trial court did not err in dismissing his suit without prejudice.

Lewis also filed a motion to supplement the record on appeal. The evidence with which Lewis seeks to supplement the record relates to the merits of his administrative remedy request, which are not reached here due to the lack of subject matter jurisdiction, and his motion is denied.

Costs of this appeal are assessed to plaintiff, Clarence D. Lewis.

AFFIRMED; MOTION TO SUPPLEMENT DENIED.


author: PETTIGREW, J.

text:
    Kevin John BRAUD v. AFFORDABLE BUILDERS, LLC.
    No. 2005 CA 1206.
    Court of Appeal of Louisiana, First Circuit.
    June 9, 2006.
    Writ Denied Oct. 6, 2006.
    Robert L. Campbell, Baton Rouge, for Plaintiff-Appellee Kevin John Braud.
    F. Dominic Amato, Baton Rouge, for Defendant-Appellant Affordable Builders of Ascension, LLC.
    Before: KUHN, GUIDRY, and PETTIGREW, JJ.
   PETTIGREW, J.

In this workers’ compensation dispute, the claimant, Kevin Braud, was injured while working as a carpenter for Affordable Builders, LLC (Affordable). Mr. Braud’s compensation claim proceeded to trial before the Office of Workers’ Compensation at which time the parties stipulated that Mr. Braud was injured in a workplace accident while in the course and scope of his employment with Affordable, that Mr. Braud had worked eight days for Affordable, and that Mr. Braud was paid $1,200.00 by Affordable. Thus, the only issue before the workers’ compensation judge (WCJ) was the calculation of the average weekly wage. After hearing the testimony and considering the applicable law, the WCJ concluded that Mr. Braud was entitled to the maximum wage benefit of $429.00 per week from the date of the injury.

Affordable contends on appeal that the WCJ committed legal error in the calculation of both the average weekly wage and corresponding rate. Mr. Braud counters, arguing that based on the stipulations of the parties and the testimony presented at the hearing, the WCJ was reasonable in its calculation of the average weekly wage.

After a thorough review of the record herein, we find no error by the WCJ in its findings. Thus, we affirm the decision below in accordance with Uniform Rules— Courts of Appeal, Rule 2-16.2(A)(2), (4), (6), and (8) and assess all costs associated with this appeal against Affordable.

AFFIRMED.