author: PATRICIA RIVET MURRAY, Judge.

text:
    Kim D. RICHARD v. Nelson Clay RICHARD, Jr.
    No. 2005-CA-0798.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 12, 2006.

      Ermence DeBose-Parent, The Law Offices of Ermence Debose-Parent, Houston, TX, Counsel for PlamtiffrAppellee.
    Theon A. Wilson, Law Offices of Theon A. Wilson, New Orleans, Counsel for Defendant/Appellant.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge MICHAEL E. KIRBY, Judge TERRI F. LOVE).
   PATRICIA RIVET MURRAY, Judge.

|, Nelson Richard appeals the trial court’s judgment awarding permanent child support, final periodic spousal support, attorney fees and court costs to his former wife, Kim Richard. For the reasons that follow, we affirm in part and reverse in part.

FACTS AND PROCEEDINGS BELOW

The parties were married on May 20, 1993. They physically separated in November, 2001. Kim Richard was awarded temporary custody of the couple’s two children (then ages eight and five), and Nelson Richard was ordered to pay Kim interim child support in the amount of $400.00 per month and interim spousal support in the amount of $500.00 per month, commencing on June 29, 2002 and ending on February 29, 2004. The parties were divorced April 20, 2004. Approximately one month prior to the granting of their divorce, Kim filed a motion for permanent child support and permanent spousal support.

The motion was heard by the trial court on March 3, 2005. At the conclusion of the hearing, the trial court rendered a decision and gave reasons from [?the bench. On March 14, 2005, the trial court issued a written judgment awarding Kim Richard permanent child support of $717.00 per month, final periodic spousal support of $800.00 per month from the date of judicial demand until May 31, 2005, attorney fees of $1,250.00, and all court costs. The trial court also rendered written reasons for judgment.

DISCUSSION

Nelson Richard appeals the judgment citing numerous specific assignments of error, which we address below. In summary, Nelson argues that the trial court awarded an excessive amount of child support that deviates from the statutory guidelines; the trial court awarded an excessive amount of spousal support; and the trial court erred by awarding attorney fees without any legal basis. We examine each issue in turn.

I. Child Support

According to the reasons given orally from the bench, the trial court arrived at the $717.00 monthly award utilizing a monthly income of $2,046.00 for Nelson Richard and a monthly income of $979.00 for Kim Richard, giving the couple a combined income of $3,025.00 for purposes of determining their child support obligation. Using the guidelines set forth in La. R.S. 9:315.19, the court determined the Richards’ total monthly support obligation for two children to be $716.00. To that figure, the court added $230.00 listed by Kim Richard as additional educational expenses, arriving at a total monthly support obligation of $946.00. Finally, the court noted that she found Nelson Richard’s pro rata share of |sthe support obligation to be 68%, which the court calculated to be $717.00 per month.

In its reasons for judgment, the court stated that it found Nelson Richard to be voluntarily unemployed. Specifically, the court noted that Kim Richard’s testimony was very credible, and Nelson’s testimony that he was not working at all at the time of trial was not credible. The court stated that it believed the mobile trash disposal business Nelson and Kim had operated during their marriage was still being run by Nelson and other family members on a cash basis at the time of trial, and further that Nelson had hidden his assets by transferring their ownership to his relatives. Nelson submitted no statement of income and expenses. For these reasons, the court determined Nelson’s annual income by reference to Kim’s testimony and income tax returns indicating that the business had gross annual receipts that increased steadily from $98,000.00 in 1998 to $149,500.00 in 2001, and made a net profit of $19,879.00 in 2001. Based on these facts, the court attributed $20,000.00 annual income, or $1,667.00 per month, to Nelson. To that monthly figure, the court added $579.00 that Nelson receives in Social Security benefits, and subtracted $200.00 Nelson pays for support of his child from a prior marriage, thus arriving at the $2,046.00 figure the court used as Nelson’s monthly income for purposes of determining his child support obligation.

Nelson Richard alleges four assignments or error relating to the trial court’s child support award, namely:

|4(1) The trial court erred by including Supplemental Security Income when calculating each party’s gross income for the purpose of determining child support under the Guidelines.
(2) The trial court erred by failing to find that Kim Richard was voluntarily unemployed.
(3) The trial court erred by adding $230.00 in educational expenses to the statutory child support obligation.
(4) The trial court mathematically miscalculated Nelson Richard’s pro-rata share of the child support obligation.

The statutory guidelines for determining child support are set forth in La. R.S. 9:315 through 9:315.19. According to La. R.S. 9:315.1(A), there is a rebuttable presumption that the amount obtained by using the guidelines is the proper amount. While a court may deviate from the guidelines if the amount indicated therein is not in the best interest of the child or is inequitable to the parties, the court must give reasons for the deviation, stating what amount the guidelines would show and why a different amount is warranted. La. R.S. 9:315.1(B). Deviations from the guidelines are not to be disturbed by an appellate court absent manifest error. La. R.S. 9:315.17.

According to La. R.S. 9:315.11, if the court finds one of the parents to be voluntarily unemployed or underemployed, the court must determine that party’s income earning potential and use that figure to determine the child support obligation under the guidelines. In the instant case, the trial court found Nelson | .¡Richard to be voluntarily unemployed and therefore determined, using the most recent net profits from his former business, that his income earning potential was $20,000.00 annually. These factual findings have not been specifically assigned as errors on appeal, although the appellant generally argues that the child support award is excessive. However, having reviewed the entire record, we conclude that the trial court’s determination, based upon the credibility of the parties, that Nelson Richard was voluntarily unemployed, is not manifestly erroneous. Moreover, the method used by the trial court to determine Nelson’s income earning potential is authorized by statute [See La. R.S. 9:315(C)(3)(c) ], and the amount is supported by the record.

We now turn to the assignments of error with regard to the child support award.

A Inclusion of Supplemental Security Income

Nelson Richard contends the amount he receives monthly from the Social Security Administration on account of his mental disability, as well as the amount Kim receives on account of their son’s learning disability, were improperly included as gross income because these amounts are actually “supplemental security income,” which, unlike social security benefits, are specifically excluded from gross income by the child support guidelines.

The definitions section of the child support guidelines, La. R.S. 9:315, provides, in pertinent part:

C. (3) “Gross Income” means:
|fi(a) The income from any source, including but not limited to salaries, wages, commissions, bonuses, dividends, severance pay, pensions, interest, trust income, recurring monetary gifts, annuities, capital gains, social security benefits, workers’ compensation benefits, unemployment insurance benefits, disaster unemployment assistance received from the United States Department of Labor, disability insurance benefits, and spousal support received from a preexisting spousal support obligation.
(d) As used herein, “gross income” does not include:
(i) Child support received, or benefits received from public assistance programs, including Family Independence Temporary Assistance Plan, supplemental security income, food stamps, and general assistance.

La. R.S. 9:315 (Emphasis added).

At trial, Nelson Richard responded affirmatively when asked whether it was true, as his counsel had stated in a memorandum filed in support of a rule to show cause concerning the termination of spousal support, that he (Nelson) received $560.00 per month “Social Security Disability.” On appeal, he argues that an attachment to that memorandum, contained in the record, proves conclusively that the amount he receives from Social Security is actually “supplemental security income,” which should have been excluded from his income under La. R.S. 9:315(C)(3)(d)(i). He correctly points out that supplemental security income is a needs-based, federal cash assistance program under Title XVI of the Social Security Act, 42 U.S.C. § 1381, et. seq., which although administered by the Social Security Administration, is funded by general revenues of the United States rather than by the Social Security trust fund. This fact distinguishes supplemental security income from regular Social Security (retirement or disability) benefits. Appellant also concedes that the $579.00 per month that Kim Richard testified she receives from Social Security as a result of their son’s learning disability is also 17supplemental security income, which the trial court should have excluded from Kim’s gross income.

We agree that the trial court erred by including these amounts as income for purposes of determining child support. The record contains Nelson’s application for supplemental security income and the official letter stating that in January, 2002, he would begin receiving supplemental security income payments in the amount of $545.00 per month, which amount could change “from month to month if income or living situation changes.” We also agree that the amount Kim receives for her son’s learning disability must also represent supplemental security income. Although the parties’ testimony merely referred to these amounts as being from “Social Security,” we cannot ignore the evidence in the record showing that these amounts are actually supplemental security income, which specifically is excluded by statute from gross income for purposes of determining child support. We therefore conclude that adding $579.00 to Nelson’s gross income (the court inexplicably referred to this amount as representing Nelson’s social security payments, although he testified to $560.00 and the documentary evidence shows $545.00), and also adding $579.00 to Kim’s gross income, violated the child support guidelines.

B. Failure to Find Kim Richard to be Voluntarily Unemployed

Appellant next argues that the trial court should have found Kim Richard to be voluntarily unemployed and should have determined her income earning potential to be at least $10,000.00 to $11,000.00 annually, which amount she testified was the most she ever earned as a hairstylist during her marriage to Nelson.

|sThe trial court found Kim’s testimony credible that her hairstyling business failed because Nelson cancelled her cell phone, in which she kept the sole record of her clients’ phone numbers and which was the only way her clients had of reaching her. The trial court stated that because of Nelson’s action, Kim was forced to shut her business down and put her equipment into storage. Kim testified that at the time of trial, she was attending John Jay Beauty College to obtain her instructor’s license, and she expected to graduate in May, 2005. Considering this evidence, we find no manifest error in the trial court’s failure to find that Kim was voluntarily unemployed.

However, Kim testified that since her separation from Nelson, she was still able to earn $45.00 to $50.00 per week cutting and styling hair at home. We therefore find it manifest error for the trial court not to have included this amount in Kim’s income. We also find it was legal error for the trial court to include the $400.00 Kim was receiving from Nelson as interim child support in her gross income, as La. R.S. 9:315(C)(3)(d)(i) specifically excludes “child support received” from the calculation of income.

Accordingly, we find Kim Richard’s adjusted gross income under the child support guidelines to be $200.00 per month (the amount she earned doing hair at home, excluding her son’s supplemental security income and the child support). We further find Nelson Richard’s adjusted gross income to be $1,467.00 per month ($1,667.00 monthly income earning potential minus $200.00 paid in support of a child from outside this marriage). Therefore, the parties’ combined adjusted gross income is $1,667.00 per month, which triggers a total child support obligation for two children of approximately $455.00 per month. See La. R.S. 9:315.19. We thus find $455.00, rather than $716.00 as found by the trial court, to be the parties’ | Sbasic child support obligation, from which each party’s pro-rata share must be determined.

C. Addition of Educational Expenses to the Child Support Obligation

Appellant claims the trial court erred by adding $230.00 per month to the total child support obligation. According to the trial court, this figure was obtained from Kim Richard’s “Statement of Income and Expenses,” in which she listed monthly “Educational Expenses” of $50.00 for “School,” $40.00 for “Lunch,” $75.00 for “Books,” and $65.00 for “Etc.” However, the child support guidelines clearly authorize the court to add educational expenses (including tuition, registration, books, and other fees) to the basic child support obligation only if the child attends a private or special school. See La. R.S. 9:315.6. In the instant case, there is no evidence that either child attends a private or special school. Kim Richard argues that the trial court intended the additional amount to cover tutoring for her son that she can no longer afford since her divorce. However, there is no indication that the court intended this amount to represent tutoring; moreover, unless the Richards’ child attends a private or special school, no additional educational expenses are authorized under the guidelines. We therefore find the trial court committed legal error by adding $230.00 in educational expenses to the basic child support obligation.

D. Miscalculation of Nelson Richard’s Share of the Child Support

By this assignment of error, appellant argues the trial court made a mathematical error in calculating the amount that represented Nelson Richard’s percentage of the basic child support obligation. In view of our conclusion herein 11nthat the trial court erred in determining the parties’ adjusted gross incomes and their resulting child support obligation, this assignment of error is moot.

Based upon our finding that Nelson Richard’s adjusted gross income under the child support guidelines is $1,467.00 per month, and Kim Richard’s adjusted gross income is $200.00 per month, we calculate Nelson Richard’s pro rata share of the basic child support obligation to be 88%. See La. R.S. 9:315.2. Applying this percentage to the parties’ basic child support obligation, which we find to be $455.00 per month, we conclude that Nelson Richard is obligated to pay to Kim Richard, the custodial parent, $400.00 per month in child support. We therefore reduce the trial court’s award of $717.00 per month to $400.00 per month.

II. Spousal Support

Appellant next argues that the $800.00 monthly spousal support awarded to Kim Richard is excessive, raising four specific assignments of error:

(1) Kim Richard failed to prove that she is unable to support herself through employment.
(2) The trial court erred by including expenses related to Kim Richard’s children in calculating her needs.
(3) The trial court erred by including the expense incurred by Kim Richard to store her business equipment in calculating her needs.
(4) The award of final periodic spousal support exceeds one third of Nelson Richard’s income and leaves him with insufficient means to support himself.

An award of final periodic spousal support is authorized by Article 111 of the Louisiana Civil Code, which provides that during a divorce proceeding or thereafter, the court may award interim or final periodic spousal support to a party free from fault based upon the needs of that party and the other party’s ability to Inpay. La. C.C. art. 112 governs the determination of final periodic spousal support. It provides:

A. The court must consider all relevant factors in determining the entitlement, amount, and duration of final support. Those factors may include:
(1) The needs of the parties.
(2) The income and means of the parties, including the liquidity of such means.
(3) The financial obligations of the parties
(4) The earning capacity of the parties.
(5) The effect of custody of children upon a party’s earning capacity.
(6) The time necessary for the claimant to acquire appropriate education, training, or employment.
(7) The health and age of the parties.
(8) The duration of the marriage.
(9) The tax consequences to either or both parties.
B. The sum awarded under this Article shall not exceed one-third of the obli-gor’s net income.

The trial court based its award of $800.00 per month (which was to terminate on May 31, 2005, when Kim Richard expected to finish school) on Kim’s having expenses of $1,779.00 per month and a monthly income of $979.00. The court stated that it considered the expenses Kim had listed on her statement and discounted them by one-fourth to reflect those attributable to Kim’s daughter from a prior marriage, who was living with Kim and the two Richard children. To determine Kim’s net income, the court combined the $400.00 Kim was receiving from Nelson in interim child support with the $579.00 Kim was receiving from Social Security on account of her son’s learning disability.

Nelson Richard first argues the trial court erred by failing to find that Kim has the ability to pay for her needs by working. However, we find no error in the trial court’s allowing Kim time to finish school, which is a permissible consideration under Article 112. Considering that the spousal support was to terminate three months from the time of trial, when Kim was scheduled to graduate, we do not find it to be manifestly erroneous for the court to allow her to complete her training without having to work full time outside the home. Nevertheless, we do And manifest error in the trial court’s failure to consider Kim’s testimony that she could still earn approximately $45.00 to $50.00 per week styling hair at home. We therefore find that the amount the trial court determined to be Kim Richard’s income ($979.00 per month) must be increased by $200.00 per month. Accordingly, we find Kim’s income for purposes of determining spousal support to be $1,179.00 per month ($400.00 she receives in child support, plus $579.00 supplemental security for her son, plus $200.00 earning capacity).

Regarding Kim’s expenses, appellant argues the trial court erred by improperly including certain expenses related to the children and also an $88.00 per month expense for storage of the equipment Kim had used in her former beauty salon, which she closed in 2002. Nelson Richard contends that although the trial court discounted the expenses Kim had listed for food, household supplies, utilities, laundry, and personal grooming by one-fourth to represent the share of Kim’s eldest daughter (from a prior relationship) who lives with Kim, the trial court improperly included all of the rent and all of the car insurance as expenses. Nelson Richard also argues that the expense categories discounted by one-fourth |1sshouId have been discounted further to exclude any expenses related to his own children. Finally, he argues that the storage expense is a business expense that should not have been included as part of Kim’s living expenses.

We find no manifest error in the trial court’s determination of Kim Richard’s expenses. First, as the amount Kim receives in child support is included in the calculation of her income, we do not consider it error to include in her expenses those of which some proportion may be attributable to the two children of her marriage to Nelson, as Kim is the domiciliary parent. Even so, the trial court explained on the record that the amounts Kim had listed for clothing and medical/dental care were discounted by more than one-fourth because the child support was intended to take care of those needs for the two children. With regard to the rent, the trial court considered that Kim left the marriage with no housing benefit because the house she and Nelson had lived in was actually owned not by them, but by Nelson’s mother. There is also no evidence on the record to prove that Kim’s eldest daughter benefits from the car insurance.

Considering all relevant factors, the trial court’s failure to discount the $600.00 rent by one-fourth to reflect the portion attributable to Kim’s eldest daughter is more than offset by the court’s substantial discounting of the clothing and medical/dental expenses, which we find was not necessary. Because Kim is the domiciliary parent, her maintenance includes whatever she needs to provide for herself and her children.

Finally, regarding the storage expense, we find the trial court properly included it as part of Kim’s maintenance. The beauty salon equipment was 1 upreviously determined to be community property, which Kim was admonished by the court not to sell. Therefore the storage expense is a community obligation Kim is required to pay, and was properly included as part of her maintenance.

In summary, we conclude that Kim Richard’s income for purposes of determining spousal support is $1,179.00 per month, and the amount she needs for her maintenance is $1,779.00 per month. Accordingly, we reduce the amount of spousal support awarded by the trial court from $800.00 per month to $600.00 per month.

Nelson Richard’s final assignment of error with regard to spousal support, that the amount awarded by the trial court exceeds one-third of his monthly income in violation of La. C.C. art. 112, is mooted by this court’s reduction in the award. As $600.00 does not exceed Nelson Richard’s monthly income of $2,212.00 ($1,667.00 earning capacity as determined by the trial court, plus $545.00 he receives in supplemental security income, according to documentary evidence in the record), we reject this assignment of error.

III. Attorney Fees

Nelson Richard argues the trial court’s award of $1,250.00 in attorney fees to Kim Richard is not supported by the law.' Kim Richard does not address this issue in her brief on appeal.

Attorney fees are not recoverable unless authorized by statute or contract. Quealy v. Paine, Webber, Jackson & Curtis, Inc., 475 So.2d 756 (La.1985). No such authorization exists in this case: While attorney fees are mandated in an action to recover past-due child support (La. R.S. 9:375), the instant case does not involve past-due child support. This hearing was instituted by Kim Richard’s 11fimotion for permanent spousal support and permanent child support, which contains no request for attorney fees. We therefore reverse the award of attorney fees.

CONCLUSION

For the reasons stated, we reduce the award of child support to $400.00 per month; we reduce the award of final periodic spousal support to $600.00 per month from the date of demand until May 31, 2005; and we reverse the award of attorney fees. In all other respects, the judgment of the trial court is affirmed. Nelson Richard is ordered to pay to Kim Richard child support and final periodic spousal support, with credit for child support and spousal support already paid, as specified herein.

REVERSED IN PART, AMENDED IN PART, AND AFFIRMED AS AMENDED.

      . Unlike in the determination of child support, there is no statutory prohibition against including child support received or supplemental security benefits when determining income for purposes of spousal support. The stipulation in La. C.C. art. 112 that the court should consider "all relevant factors" indicates that all sources of income of each party should be considered.

      . See footnote 1 supra.


source: Caselaw Access Project

author: DENNIS R. BAGNERIS, Sr., Judge. JONES, J.,

license: Public Domain

text:
    Pearlie Bell, Wife of/and Timothy HARRIS v. Betty C. POCHE, GBS Properties, L.L.C., d/b/a Prudential Gardner, Realtors, Glenn M. Mediamolle and English Turn Limited Partnership.
    No. 2005-CA-0664.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 12, 2006.

      Randall A. Smith, Stephen M. Wiles, Smith & Fawer, L.L.C., New Orleans, Counsel for Plaintiffs/Appellees.
    Nancy J. Marshall, Karen P. Holland, Georgia Kobos Thomas, Deutsch, Kerrigan & Stiles, L.L.P., New Orleans, Counsel for Defendant/Appellant.

      (Court composed of Judge CHARLES R. JONES, Judge DENNIS R. BAGNERIS, Sr., and Judge EDWIN A. LOMBARD).
   DENNIS R. BAGNERIS, Sr., Judge.

_L¡In this suit for damages resulting from unfair trade practices in violation of La. R.S. 51:1401, et seq., a jury found that Defendants, Glen Mediamolle (“Mr.Media-molle”) and English Turn Limited Partnership (“English Turn”), violated the Louisiana Unfair Trade Practices Act in its business dealings involving property located at 49 English Turn Drive in New Orleans, Louisiana. Mr. Mediamolle and English Turn now appeal the trial court judgment, which awarded plaintiffs $170,106.25 in damages and ordered an award of attorneys’ fees and costs in the amount of $82,393.27. For the reasons stated below, we affirm.

FACTS AND PROCEDURAL HISTORY

On October 7, 2001, plaintiffs, Pearlie Bell Harris, and her husband, Timothy Harris, and their six children met with their real estate agent, Ms. Betty Poche, to see the property for sale at 49 English Turn Drive. At that time, Mr. and Mrs. Harris told Ms. Poche that they wished to make an offer for the property located at 49 English Turn Drive for $435,000.00. Ms. Poche testified that although she considered that amount to be too low, she agreed to speak with the listing agent, Mr. Mediamolle of English Turn, to find out if the offer was “in the ball park” of what the seller would take. Mr. Harris testified that it was his understanding that if $435,000.00 was in the ballpark, then Ms. Poche would put the offer in writing.

|2Ms. Poche testified that for the next two days, she called Mr. Mediamolle to discuss Mr. Harris’s offer, and asked whether it was within a range that the seller might consider. Ms. Poche testified that she remembered calling Mr. Media-molle on Monday morning from the office, and her cell phone records reflect several other calls to Mr. Mediamolle, which she testified related to the Harrises’ offer. Ms. Poche further testified that Mr. Medi-amolle told her that the offer was too low, and that he did not encourage or suggest having her write up the Mr. Harrises’ offer. According to Ms. Poche, Mr. Medi-amolle gave her the impression that he had actually checked with the seller about the $435,000.00 offer, and that the seller was not interested.

At trial, Mr. Mediamolle testified that another couple, Mr. and Mrs. Orgeron, had previously submitted an offer of $435,000.00 for 49 English Turn on September 10, 2001, and then withdrew it immediately in the wake of the “national crises” of September 11, 2001. Mr. Media-molle testified that the seller, a relocation company, had instructed him to contact Mr. and Mrs. Orgeron, following September 11, 2001, in order to encourage them to resubmit their offer of $435,000.00. Mr. Mediamolle also testified that the seller told him that if the property did not sell soon (with the time frame being September 2001 though October 2001), the company would auction the property. Mr. Medi-amolle testified that he was approved to “approach a buyer to secure a sale at $475,000.00 for the close date of 9/30/01.” Mr. Mediamolle testified that he did not recall any discussions with Ms. Poche concerning the purchase of 49 English Turn Drive and whether $435,000.00 might be something the sellers would be interested in for the property.

[sMr. Mediamolle testified that on October 11, 2001, he wrote up an offer from another set of buyers, Mr. and Mrs. Fuchs, for $425,000.00 — an offer that was $10,000.00 less than the amount that the Harrises were willing to pay on October 8, 2001. The seller directed Mr. Mediamolle to have Mr. and Mrs. Fuchs resubmit the offer, with a $2,500.00 nonrefundable deposit, which they did on October 18, 2001. The seller accepted Mr. and Mrs. Fuchs offer on October 19, 2001.

On October 2, 2002, Plaintiffs filed suit against Ms. Poche, GBS Properties, L.L.C., d/b/a Prudential Gardner Realtors, Mr. Mediamolle, and English Turn for damages which they claim they sustained as a result of a failed real estate transaction. Following a four day trial, the jury rendered a unanimous verdict in favor of Mr. and Mrs. Harris, finding that: (1) Mediamolle and English Turn used an unfair or deceptive method, act or practice in the conduct of business related to 49 English Turn, and (2) that the unfair or deceptive method, act, or practice was a cause in fact of any damage to the Harris-es. The jury awarded Plaintiffs $15,125.00 for their loss of use and enjoyment of 49 English Turn Drive, and $185,000.00 for the loss of increased value of the property. The jury then apportioned 85% of the fault to Mr. Mediamolle and English Turn and apportioned 15% of the fault to the settling defendants Betty Poche and Prudential Gardner. The trial judge entered judgment in accordance with the jury’s verdict, and also ordered Mr. Mediamolle and English Turn to pay attorney’s fees and costs in the amount of $82,893.27 under the Louisiana Unfair Trade Practices Act.

|4On appeal, Mr. Mediamolle and English Turn assert the following six assignments of error: (1) the trial court erred when it denied their Motion for Directed Verdict; (2) the trial court erred when it denied their Motion In Limine to exclude the testimony of plaintiffs’ expert appraiser, Jimmie Thorns, Jr.; (3) the jury erred in its finding that Glenn Mediamolle used an unfair or deceptive trade practice in the conduct of any business related to 49 English Turn Drive which was a cause-in-fact of any injury to Plaintiffs when there was no expert testimony that any act or omission on the part of Mr. Mediamolle fell below the standard of care required of a real estate agent; (4) the jury erred when it apportioned 15% of the fault to Plaintiffs’ own real estate agent, Ms. Poche, while allotting 85% of the fault to Media-molle, agent for the seller; (5) the trial court erred when it refused to instruct the jury that an award of lost profits would be impermissible as a windfall to Plaintiffs because they would reap the benefits of ownership of the property without having to endure the associated financial risks and responsibilities associated with the ownership of the property, as requested in defendant’s Requested Jury Charge No. 9; and (6) the trial court erred in awarding attorneys’ fees and costs to plaintiffs.

STANDARD OF REVIEW

A court of appeal may not set aside a trial court’s or a jury’s finding of fact in the absence of manifest error or unless it is clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989). When findings are based on determinations regarding the credibility of witnesses, the manifest error-clearly wrong standard demands great deference to the findings of the trier of fact; for only the fact finder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s ^understanding and belief in what is said. Where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Id. Reversal of findings of fact on appeal requires that: (1) the appellate court find from the record that no reasonable factual basis exists for the trial court’s finding, and (2) the appellate court determine that the record establishes the finding is clearly wrong or manifestly erroneous. Stobart v. State through Dept. of Trans. and Development, 617 So.2d 880 (La.1993).

Issue One: Whether the trial court erred when it denied defendants’ Motion for Directed Verdict?

A trial judge has much discretion in determining whether or not to grant a motion for directed verdict. Wichser v. Trosclair, 99-1929 and 99-1930, p. 3 (La.App. 4 Cir. 2/28/01), 789 So.2d 24, 26. A motion for directed verdict is appropriately granted in a jury trial when, after considering all evidentiary inferences in the light most favorable to the movant’s opponent, it is clear that the facts and inferences are so overwhelmingly in favor of the moving party that reasonable men could not arrive at a contrary .verdict. Lott v. Lebon, 96-1328, p. 4 (La.App. 4 Cir. 1/15/97), 687 So.2d 612, 615-616 citing New Orleans Property Dev. v. Aetna Casualty, 93-0692 (La.App. 1 Cir. 4/8/94), 642 So.2d 1312. However, if there is substantial evidence opposed to the motion, that is, evidence of such quality and weight that reasonable and fair-minded jurors in the exercise of impartial judgment might reach different conclusions, the motion should be denied, and the case submitted to the jury. Newpark Resources, Inc. v. Marsh & McLennan of Louisiana, Inc., 96-0935 (La.App. 1 Cir. 2/14/97), 691 So.2d 208, 211.

Our review of the record in this case convinces us that the trial court correctly evaluated the evidence presented by Mr. and Mrs. Harris in concluding that they had borne their burden of proof pursuant to the Louisiana Unfair Trade Practices and Consumer Protection Law as set forth in La. R.S. 51:1401, et seq. and that reasonable and fair-minded jurors in the exercise of impartial judgment might reach different conclusions based upon the evidence presented. After considering all inferences in the light most favorable to plaintiffs, we do not find that the trial court committed manifest error in denying the Defendants’ Motion for Directed Verdict.

Issue Two: Whether the proper measure of damages for lost opportunity under The Louisiana Unfair Trade Practices and Consumer Protection Law is based on the value of the property at the time of trial?

Defendants complain that the trial court should have granted their Motion in Li-mine to exclude the testimony of the plaintiffs’ expert appraiser, Jimmie Thorns, Jr. (“Mr.Thorns”) because Mr. Thorns incorrectly based his expert opinion as to the damages allegedly sustained by plaintiffs on the value of the home in question at the time of the trial rather than its value at the time of the disputed sale. Similarly, defendants complain that the trial court should have instructed the jury that an award of lost profits would be an impermissible windfall. The trial court denied both the Defendants Motion in Limine and the proposed jury instruction.

The issue before this Court is whether the Harrises are entitled only to the difference in the sale price and the appraised value on the date of the act of sale or | ./whether they are entitled to their loss of enjoyment of the property for that time, and the loss of increased value as the property appreciated over the years. Plaintiffs argue that because the Louisiana Unfaii' Trade Practices Act provides for actual damages, then the actual damages that the Harrises sustained include their loss of enjoyment of the property for that time, and the loss of increased value as the property appreciated over the years.

The Louisiana Unfair Trade Practices and Consumer Protection Law is set forth in La. R.S. 51:1401, et seq. It declares unfair methods of competition, as well as unfair or deceptive acts or practices in the conduct of any trade or commerce, to be unlawful. An act is not required to be both unfair and deceptive. What constitutes unfair and/or deceptive practices is not specifically defined, but is determined on a case-by-case basis. Core v. Martin, 20,528 (La.App. 2 Cir. 5/10/89) 543 So.2d 619, 621. The Unfair Trade Practices Law does not prohibit sound business practices, the exercise of permissible business judgment or appropriate free enterprise transactions. A practice is unfair when it offends public policy and when the practice is immoral, unethical, oppressive, unscrupulous, or substantially injurious to consumers. Ahmed v. Bogalusa Kidney Care Center, 89-0313 (La.App. 1 Cir. 4/10/90) 560 So.2d 485, 489. Conduct is considered unlawful when it involves fraud, misrepresentation, deception, breach of fiduciary duty or other unethical conduct. United Group of Nat. Paper Distributors, Inc. v. Vinson, 27,739 (La.App.2 Cir. 1/25/96), 666 So.2d 1338. A defendant’s motivation is a critical factor; the actions must have been taken with the specific purpose of harming the competition. Id.; Monroe Medical Clinic, Inc. v. Hospital Corp. of America, 24,426 (La.App. 2 Cir. 7/21/93) 622 So.2d 760.

On the issue of damages, the Louisiana Unfair Trade Practices Act, La. R.S. 51:1409(A), provides as follows:

A. Any person who suffers any ascertainable loss of money or movable property, corporeal or incorporeal, as a result of the use or employment by another person of an unfair or deceptive method, act or practice declared unlawful by R.S. 51:1409 may bring an action individually but not in a representative capacity to recover actual damages. If the court finds the unfair or deceptive method, act or practice was knowingly used, after being put on notice by the director or attorney general, the court shall award three times the actual damages sustained. In the event that damages are awarded under this Section, the court shall award to the person bringing such action reasonable attorney’s fees and costs. Upon a finding by the court that an action under this section was groundless and brought in bad faith or for purposes of harassment, the court may award to the defendant reasonable attorney’s fees and costs. (Emphasis added)

The Defendants cite to three state court decisions, Womack v. Sternberg, 247 La. 566, 172 So.2d 683, 686 (1965); Langendorf v. Administrators of the Tulane Ed. Fund, 361 So.2d 905 (La.App. 4 Cir. 6/13/78); and Cousins v. Realty Ventures, Inc., 01-1223 (La.App. 5 Cir. 01/14/03), 844 So.2d 860 for the proposition that the proper calculation of damages in an alleged failed real estate transaction is measured by the difference between the price of the immovable at the time of the actual disputed sale and the fair market value of the thing on the date of that sale. However, as Plaintiffs correctly point out, these three cases cited by Defendants address breach of contract damages and do not address a cause of action in tort, under the Louisiana Unfair Trade Practices Act.

Plaintiffs also cite to three state court decisions; Amato v. Latter & Blum, Inc. 227 La. 537, 79 So.2d 873 (1955); Avegno v. Byrd, 377 So.2d 268 (La.1979); and Amoco Production Co. v. Texaco, Inc., 2002-240, (La.App. 3 Cir. 1/29/03), |9838 So.2d 821 for the proposition that the proper calculation of damages is measured by the difference between the price of the immovable at the time of the actual disputed sale and the property’s value at the time of trial. However, as Defendants correctly point out, these three cases cited by Plaintiffs also fail to address the issue of the proper measure of damages under the Louisiana Unfair Trade Practices Act. Accordingly, there is a paucity of Louisiana jurisprudence directly on point that governs the issue of the measure of damages in a situation where a seller’s agent discourages a viable offer so that no purchase agreement ever comes to fruition.

During the hearing on the Motion in Limine, the trial court acknowledged that there were no cases on point. In making the decision to deny Defendants’ Motion in Limine and to allow Plaintiffs’ expert, Mr. Thorns, to testify as to the value of the home in question at the time of trial, the trial judge stated as follows, in pertinent part:

I think one of the rationales behind the Unfair Trade Practice Act is to discourage people from preventing you from being able to realize a benefit or a gain from an investment. And if that’s — if that’s part of the rationale and they (plaintiffs) succeed under the Unfair Trade Practices Act,. — -I think under the Unfair Trade Practices Act they (plaintiffs) have the ability, if they were to prove it, to prove — to be entitled to damages based on what they could have earned and what value they could have realized from the purchase of the property as it relates to equity, which would be the current value of the property versus the value at the time that they would have purchased it.
* ⅜: * * * #
The Unfair Trade Practices Act is supposed to be to allow a person who could have invested in a business or who is running an ongoing business, to — they should have been able to realize a certain value out of that business.

We agree with the trial judge that one of the rationales behind the Unfair Trade Practice Act, which again is a cause of action in tort, is to |indiscourage people from preventing others from being able to realize a benefit or gain from an investment. As such, we agree with the trial court that once the Harrises proved a claim under the Unfair Trade Practices Act, then at that time they were entitled to seek damages for the difference between the purchase price of the home in November 2001, and the appraised value of the home at the time of trial.

At trial, the Harases introduced uncon-tradicted testimony that if they had purchased # 49 English Turn Drive in 2001, they would still be living there today, and would have kept it for at least five years or more. Further, Mr. Thorn testified at trial that the house had not undergone any major renovation or structural changes since the 2001 sale, which would account for any significant increase in value, separate from the appreciation due to the market. At trial, Mr. Thorn testified that the appraised value of the property at the time of trial in October of 2004 was $700,000.00 while the purchase price of the property in November of 2001 was $435,000.00.

Although the jury could have awarded $265,000.00 (the difference between $700,000.00 and $435,000.00), it awarded the lesser amount of $185,000.00 for the loss of increased value of the property. In arriving at this lower amount, we can only assume that the jury did, in fact, take into consideration the testimony of Mr. Media-molle’s expert that the current owner made some cosmetic changes and redecorated, which prevented the Harrises from receiving a windfall for the improvements that the current owner may have made.

Accordingly, we find no merit to Defendants’ argument that the trial court erred when it denied the Motion in Limine to exclude the testimony of ^Plaintiffs’ expert appraiser, Jimmie Thorns, Jr. Further, we find no merit to Defendants’ argument that the trial court erred when it refused to instruct the jury that an award of lost profits would be impermissible as a windfall to Plaintiffs.

Issue Three: Whether the jury erred in its finding that Mr. Mediamolle used an unfair trade practice when there was no expert testimony that he breached the standard of care required of a real estate agent?

Defendants argue that there was absolutely no expert testimony offered by Plaintiffs that Mr. Mediamolle breached the standard of care required of a real estate agent under the circumstances. We find no merit to this assignment of error.

A review of the record reveals that Mr. Mediamolle’s own expert, Mr. Mark Rodi, testified that he would have encouraged Ms. Poche to make an offer. When presented with the hypothetical facts applicable to the instant case, Mr. Rodi testified as follows:

Q. So I take it, if you had gotten a call at that time for a listing which, although it was listed for $559,000.00, if your client had been suggesting to you, why didn’t you try to go to so-and-so and get $475,000.00; and were thinking of auctioning it; and why don’t you go to the person who submitted $435,000.00 and get them to resubmit if — if another agent called you in the middle of all of that and said, I’ve got a buyer interested in paying $435,000.00, I take it that you wouldn’t have said, no, that’s too low, and discouraged them?
A. Absolutely not. I’d have told them, write that offer, let’s get it presented. And that’s what the duty of that — of the agent would be, is to write that offer.
Q. And you would encourage that?
A. Absolutely.
Q. You wouldn’t discourage it?
A. I would never discourage any offer. It begins communication.

li¡>The jury heard this testimony and it determined that Mr. Mediamolle had breached his duty by using an unfair or deceptive method, act or practice to thwart the Harrises attempt to purchase the property and advance his own client’s offer. Accordingly, we find the evidence was sufficient for the jury to find that Mr. Mediamolle misled Ms. Poche when he told her that $435,000.00 was “too low” to submit as an offer.

Issue Four: Whether the jury erred when it apportioned 15% of the fault to Plaintiffs’ own real estate agent, Ms. Poche, while allotting 85% of the fault to Mr. Mediamolle?

Defendants allege that Ms. Poehe admitted under oath that she never submitted to Mr. Mediamolle any offer to purchase the property for $435,000.00 on behalf of her clients. Consequently, Defendants argue that Ms. Poche should be the person responsible for the failure to put the offer in writing.

Apportionment of fault is a question of fact, subject to the manifest error/clearly wrong standard of review. In comparing the relative fault of the parties, several factors are considered, including: (1) whether the conduct resulted from inadvertence or involved an awareness of the danger, (2) how great a risk was created by the conduct, (3) the significance of what was sought by the conduct, (4) the capacities of the actor, whether superior or inferior, and (5) any extenuating circumstances which might require the actor to proceed in haste without proper thought. Watson v. State Farm and Cas. Ins. Co., 2158 (La.1985), 469 So.2d 967, 974.

Once the jury has made a determination as to the apportionment of fault, any allocation of fault within an acceptable range cannot be considered clearly wrong. Riley v. Reliance Ins. Co., 97-0445 (La.App. 4 Cir. 11/19/97), 703 So.2d 158, 163. In the instant case, the jury apportioned 85% of the fault to Mr. Media-molle and 11al5% of the fault to Ms. Poche. Based on the facts of this case, we cannot find that this allocation was clearly wrong.

Issue Five: Whether the trial court erred in awarding attorneys’ fees and costs to Plaintiffs.

Defendants argue that the award of attorney’s fees and court costs should be reversed because Mr. Mediamolle neither breached a duty owed to the Harrisses nor engaged in any unfair or deceptive trade practice. We find no merit in this assignment of error.

The Louisiana Unfair Trade Practices Act, La. R.S. 51:1409(A), provides that in the event damages are awarded then “the court shall award to the person bringing such action reasonable attorney’s fees and costs.” Because we find no error in the trial court’s judgment as to liability, we do not find that the trial court erred in awarding attorneys’ fees and costs to the plaintiffs.

For these reasons, we affirm the judgment of the trial court in favor of Mr. and Mrs. Harris in the amount of $170,106.25, and the trial court’s award of attorneys’ fees and costs in the amount of $82,393.27.

AFFIRMED.

JONES, J., respectfully dissents.

JONES, J.,

Dissenting.

LA contract affecting title to immovable property must be in writing and a mandate authorizing an agent to buy or sell immovable property must be express and special and must also be in writing. See Tchoupitoulas, Inc. v. McCullough, 349 So.2d 346 (La.App. 4 Cir. 6/7/77).

      . Ms. Poche and her agency, GBS Properties, L.L.C., d/b/a Prudential Gardner settled with plaintiffs on the first day of trial.

      . Defendants/appellants' second and fifth assignments of error both address the valuation of the property for purposes of calculating the loss of increased value, and involve the same evidence and legal issues. As such, we will address these issues together.


author: LEON A. CANNIZZARO, JR., Judge.

text:
    STATE of Louisiana v. David LEE.
    No. 2005-KA-1196.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 12, 2006.

      Eddie J. Jordan, Jr., District Attorney, Zata W. Ard, Assistant District Attorney, New Orleans, Counsel for State of Louisiana.
    Laura Pavy, Louisiana Appellate Project, New Orleans, Counsel for Defen-danVAppellant, David Lee.
    (Court Composed of Judge CHARLES R. JONES, Judge DENNIS R. BAGNERIS, Sr., Judge LEON A. CANNIZZARO, Jr.)
   LEON A. CANNIZZARO, JR., Judge.

hThe defendant, David Lee, is appealing a decision by the trial court refusing to set aside his convictions and sentences. Mr. Lee contends that his right to due process was violated and that, therefore, he should be granted a new trial.

STATEMENT OF THE CASE

Mr. Lee was charged by a bill of information with one count each of (1) aggravated rape, (2) aggravated burglary, (3) aggravated crime against nature, (4) aggravated arson, (5) burglary of an inhabited dwelling, and (6) extortion. He pled not guilty to all charges at his arraignment, and he was tried before Judge Sharon Hunter. She found him guilty of all charges except the charge of aggravated arson. Instead of finding him guilty of that charge, she found him guilty of simple arson. Mr. Lee was sentenced to (1) life imprisonment without the benefit of probation, parole, or suspension of his sentence for aggravated rape, (2) seven years for aggravated burglary, (3) thirteen months for aggravated crime against nature, (4) three years for simple arson, (5) seven years for burglary of an inhabited dwelling, and (6) two years for extortion. All sentences were to be served concurrently in the custody of the Louisiana Department of Corrections with credit for time 12already served. The aggravated rape and aggravated burglary convictions were designated as crimes of violence.

After Mr. Lee’s motion for a new trial was denied, a multiple offender bill of information was filed. At the trial on the multiple offender bill of information, Mr. Lee was adjudicated a third felony offender under the Habitual Offender Law, La. R.S. 15:529.1. The trial court vacated Mr. Lee’s sentenced for his aggravated burglary conviction and re-sentenced him to life imprisonment without the benefit of probation, parole, or suspension of sentence as a third felony offender under the Habitual Offender Law.

Mr. Lee was granted an out of time appeal. On appeal this Court reversed Mr. Lee’s convictions and sentences, on the ground that the trial court failed to ascertain Mr. Lee’s competency to stand trial before proceeding to try him. State v. Lee, 02-0955 (La.App. 4 Cir. 12/4/02), 834 So.2d 536. In State v. Lee, 03-0032 (La.6/27/03), 852 So.2d 987, the Louisiana Supreme Court in a per curiam opinion, reversed the decision of this Court and remanded the case to the trial court for the purpose of conducting an evidentiary hearing and reconstructing the proceedings as they related to the question of the defendant’s competency to stand trial.

The trial court reviewed the record and contacted the attorney who represented Mr. Lee at his trial in an attempt to determine what had transpired with respect to Mr. Lee’s original request for a competency hearing. The trial court | ^rendered its decision finding that Mr. Lee’s convictions and sentences should be affirmed. Mr. Lee is now appealing the trial court decision on the competency issue.

DISCUSSION

The Record

The record contains a minute entry dated April 7, 1999, that reflects that a hearing to determine Mr. Lee’s competency to stand trial was set for April 20, 1999. A minute entry dated April 20, 1999, reflects that the hearing was rescheduled for April 27, 1999. A transcript of the proceedings on April 27, 1999, reflects the following colloquy:

MR. JUPITER:
Your Honor, the first gentleman is David Lee. He’s scheduled for a lunacy hearing.
THE COURT:
Okay. I’m going to call the doctors. This matter is set for trial tomorrow?
MR. JUPITER:
Yes, Your Honor. It’s set for trial tomorrow, Your Honor. (Inaudible). I’m requesting a continuance.

The only other information in the record regarding the competency hearing is an entry on the trial court’s docket master that reads:

4/27/1999
DEFENDANT LEE APPEARED IN COURT FOR LUNACY HEARING ATTENDED BY OMODARE JUPITER. DEFENDANT WITHDREW REQUEST FOR LUNACY EXAMINATION. DEFENSE REQUESTED CONTINUANCE ON TRIAL. COURT DENIED. TRIAL CURRENTLY SET 4/28/99.

There is nothing in the April 27, 1999 transcript that is in the record, however, that refers to a withdrawal of the request for a competency hearing. ^^Additionally, there is nothing in the record to indicate whether or not the trial court ever determined Mr. Lee’s competency to stand trial.

Louisiana Supreme Court Instructions

In the Lee case, the Supreme Court instructed the trial court to hold an eviden-tiary hearing to make a determination regarding the trial court’s proceedings that were related to the question of Mr. Lee’s competency to stand trial. The Supreme Court stated:

The court shall determine whether the trial judge granted, the defendant’s motion for appointment of a sanity commission, before the defendant attempted to withdraw the motion, thereby finding reasonable grounds to doubt the defendant’s competency to proceed and staying all further proceedings by operation of La.C.Cr.P. art. 642 until that determination was made. In the event that the trial judge did grant the motion before defendant attempted to withdraw it, the court shall further determine whether the trial judge then appointed (or failed to appoint) the commission doctors or conducted (or failed to conduct) a hearing on the commission’s reports and determined (or failed to determine) the defendant’s competency to proceed before he went to trial. On the basis of its factual findings, the court is then to rule on the question of whether the defendant is entitled to set aside his convictions and sentences under this Court’s decisions in State ex rel. Seals v. State, 00-2738 (La.10/25/02), 831 So.2d 828, and State v. Nomey, 613 So.2d 157 (La.1993).

03-0032, pp. 1-2, 852 So.2d at 987.

Trial Court Judgment on Remand

On remand to the trial court, Judge Benedict Willard considered the matter and concluded that there was “no evidence to suggest that the trial Judge made a ruling on the motion [for a competency hearing] prior to the defendant’s withdrawal [of the motion].” Judge Willard also stated in his reasons for judgment that he had sought the assistance of Mr. Lee’s trial attorney who indicated that “to 1 fjhis recollection no ruling was ever made.” Judge Willard held that “for the foregoing reasons and on the basis of factual findings, the district court does not find where the defendant is entitled to set aside his convictions and sentences.”

In response to the Supreme Court’s instructions that the trial court “determine whether the trial judge granted the defendant’s motion for appointment of a sanity commission, before the defendant attempted to withdraw the motion,” Judge Willard concluded that there was no evidence that Judge Hunter had ruled on the motion before Mr. Lee attempted to withdraw it. Because the Supreme Court required further inquiry by the trial court judge, only if the trial court were to find that the motion had been granted prior to the attempted withdrawal, Judge Willard did not address the other issues raised by the Supreme Court.

Legal Analysis

We have reviewed the record and we, unlike Judge Willard, cannot conclude that there was no evidence that Judge Hunter had ruled on the motion for a competency determination before Mr. Lee withdrew the motion. There is clearly a possibility that Judge Hunter did grant the motion, because she stated on the record that “I’m going to call the doctors.” This indicates that she had granted the motion. Additionally, there is nothing in the record, other than a docket entry, to show that Mr. Lee, in fact, ever withdrew the motion.

The Supreme Court in Lee required the trial court to make additional inquiry if the trial court determined that the motion for a competency hearing was not withdrawn before the trial court judge had granted the motion. Because we find no evidence in the record from which we can confirm that a competency commission |fiwas ever appointed or that a competency hearing was conducted, we must consider Mr. Lee’s appeal under the Supreme Court’s decisions in the Seals and Nomey cases, as required by the Supreme Court’s ruling in Lee.

In the Nomey case, the defendant filed a petition for the appointment of a competency commission. The record in Nomey showed that the trial court appointed a competency commission, that the commission examined the defendant, and that the commission found the defendant competent to stand trial. The defendant then pled guilty to the charges against him. Prior to accepting the guilty pleas, the trial court determined that the pleas were “knowingly, intelligently, and voluntarily entered.” 613 So.2d at 159. There was no evidence in the record, however, that the trial court conducted a contradictory hearing on the issue of the defendant’s competency prior to the acceptance of his guilty pleas.

The defendant filed a motion for post conviction relief, alleging that the trial court’s failure to conduct a competency hearing prior to accepting his guilty pleas violated his right to due process. The Supreme Court in Nomey held that the trial court’s acceptance of the defendant’s guilty pleas prior to holding a competency hearing violated the defendant’s right to due process as set forth in La.C.Cr.P. articles 642 and 647. Article 642 provides in relevant part that “[w]hen the question of the defendant’s mental incapacity to proceed is raised, there shall be no further steps in the criminal prosecution ... until the defendant is found to have the mental capacity to proceed.” Article 647 requires that “[t]he issue of a defendant’s mental capacity to proceed shall be determined by the court in a contradictory hearing.” Because no competency hearing was ever conducted in the Nomey case, the Supreme Court held that all proceedings taken after the appointment of the |7sanity commission, including the defendant’s guilty pleas, were vacated. The case was then remanded to the trial court for further proceedings.

Almost a decade later, however, in the Seals case the Supreme Court reconsidered the issue of a defendant’s rights under La.C.Cr.P. arts. 642 and 647. In Seals the Supreme Court noted that there is a “longstanding precept that a defendant does not have an absolute right to the appointment of a sanity commission simply upon request.” 00-2738, p. 5, 831 So.2d at 832. Nevertheless, the failure to resolve the issue of a defendant’s capacity to proceed to trial may result in either nullification of the conviction and sentence or a nunc pro tunc hearing to determine competency retrospectively. 00-2738, p. 6, 831 So.2d at 833. The Supreme Court stated that “in certain instances, a nunc pro tunc hearing on the issue of competency is appropriate ‘if a meaningful inquiry into the defendant’s competency’ may still be had.” Id. The Supreme Court further stated in the Seals case that the trial court is in the best position to make the competency decision nunc pro tunc and that the determination of whether a defendant’s conviction and sentence should be nullified or whether a nunc pro tunc hearing should be held must be made on a case by case basis. Id.

The Supreme Court in Seals listed the factors that a court may consider to conduct a proper nunc pro tunc inquiry into a defendant’s competency to stand trial. These are known as the Bennett factors. The Bennett factors include the following:

[Wlhether [t]he [defendant] is able to recall and relate facts pertaining to his actions and whereabouts at certain times; whether he is able to assist counsel in locating and examining relevant witnesses; whether he is able to |smaintain a consistent defense; whether he is able to listen to the testimony of witnesses and inform his lawyer of any distortions or misstatements; whether he has the ability to make simple decisions in response to well-explained alternatives; whether, if necessary t.o defense strategy, he is capable of testifying in his own defense; and to what extent, if any, his mental condition is apt to deteriorate under the stress of trial.

00-2738, p. 7, 831 So.2d 828 at 833-34.

In the instant case, we find that the record provides sufficient evidence for a nunc pro tunc determination of Mr. Lee’s competency to stand trial. Mr. Lee testified at the trial, and his testimony can be used to reach certain conclusions regarding the Bennett factors. Normally, we would remand this matter to the trial court for a nun pro tunc hearing on Mr. Lee’s competency, because the trial court judge before whom Mr. Lee was tried would be in a better position than this Court to make a nunc pro tunc determination regarding Mr. Lee’s competency. In this case, however, the trial court judge who presided at Mr. Lee’s trial is no longer sitting on the trial court bench, and another judge considered Mr. Lee’s claims on remand from the Supreme Court. Therefore, we believe that because the trial court has no more first-hand knowledge of the trial than we do, it is in the interest of judicial economy for us to determine whether Mr. Lee was competent to stand trial when he did.

The Bennett Factors

In determining whether Mr. Lee was competent to stand trial, we have considered the Bennett factors as set forth in the Seals case. We have based our decision regarding each of the factors on Mr. Lee’s testimony at his trial.

Ifll. Was Mr. Lee able to recall and relate facts pertaining to his actions and %uhereabouts at certain times?

Mr. Lee testified in his own defense, and his testimony reflects that he was clearly able to recall and relate the facts pertaining to his actions and whereabouts during the relevant time periods. The victim and Mr. Lee both testified that they had met on Canal Street when they began a conversation about religion. The victim testified that after they had become acquainted, Mr. Lee needed a place to stay, and she permitted him to live with her. She testified that they lived together for a very short time, but Mr. Lee explained that he and the victim had, in fact lived together for approximately four months. He also explained that during that time, he held a job and gave one hundred dollars a week from his paycheck to the victim.

Mr. Lee’s defense strategy was to attack the victim’s credibility, and he did this by explaining that after living with the victim for several months, he realized that during the time periods when she did not take the medicines prescribed for her psychiatric illnesses, she became mentally unstable. Mr. Lee said that upon discovering the victim’s mental instability, he moved out of the victim’s home. Mr. Lee also testified that the victim used illegal drugs, thus casting further doubt on the victim’s credibility.

Mr. Lee’s testimony at his trial reflects that he was able to remember and very clearly and concisely describe in great detail his version of his actions and his whereabouts both before and during the time of the crimes with which he was charged. He also recalled specific dates and times. Additionally, he refuted the victim’s testimony. For example, he testified that he was not a beer drinker and that he was not a smoker, after the victim had testified that Mr. Lee had smoked a | ^cigarette and had drunk a beer prior to raping her. Mr. Lee’s testimony reflects that he was never unsure or confused about his versions of his actions and whereabouts. Therefore, we find that Mr. Lee met the requirements of this Bennett factor.

2. Was Mr. Lee able to assist his counsel in locating and examining relevant witnesses?

The criminal activity in this case involved only Mr. Lee and the victim, and neither the victim nor Mr. Lee said that there were any witnesses to the crimes. Nevertheless, we note that Mr. Lee testified in court that he had requested his counsel to obtain the records of the psychiatric treatment and hospitalization that Mr. Lee alleged that the victim had undergone. The purpose for which he wanted to obtain those records was to support his claims that the victim was mentally unstable and, therefore, had fabricated her allegations against him. In the absence of any witnesses to his crimes, he was still clearly able to advise his counsel regarding evidence that would be relevant to his defense. We find that Mr. Lee met the requirements of this Bennett factor.

3. Was Mr. Lee able to maintain a consistent defense?

In testifying in his own defense at the trial, Mr. Lee cogently formulated and presented a defense to the charges against him. He consistently maintained that he did not rape the victim, that she was mentally unstable, and that she had fabricated her allegations against him. He never wavered from these claims while he was testifying both on direct and on cross-examination. Mr. Lee responded to the allegations by the victim with detailed explanations that were designed to refute her testimony.

Inin connection with the extortion charge against him, Mr. Lee explained that he did not tell the victim that he would pay her $1,000 if she did not report what he had done to her. He countered her testimony to that effect by asserting that he had promised to give her $1,000 for a Christmas present. Mr. Lee was clearly able to provide a rebuttal to the victim’s testimony relating to the extortion charge against him.

The transcript of Mr. Lee’s testimony demonstrates that he understood the questions posed to him and gave responsive answers that were clear and coherent. Also, he did not need to have the questions unnecessarily repeated or rephrased. The transcript further demonstrates that Mr. Lee was able to maintain a consistent defense at his trial. We find that Mr. Lee met the requirements of this Bennett factor.

4.Was Mr. Lee able to listen to the testimony of witnesses and inform his lawyer of any distortions or misstatements?

Mr. Lee was obviously able to advise his counsel of several inconsistencies in the testimony at his trial, because some of the questions that his trial attorney asked were specifically designed to elicit responses that would raise doubts about the testimony of the victim. Mr. Lee was the only person who would have been able to give his attorney the information upon which those questions were based. For example, Mr. Lee admitted that the victim testified correctly that he had scratched her at one time, but he then asserted that this occurred only after the victim had stabbed him. He also provided a detailed explanation of why there was no police report of the alleged stabbing by the victim. Mr. Lee’s trial attorney asked him questions designed to refute the testimony of the victim regarding [^clothing that was photographed in her home. Additionally, Mr. Lee answered questions designed to elicit testimony from him that refuted the victim’s contention that Mr. Lee only gave her a small amount of money on only one occasion. Mr. Lee contended that he gave the victim a portion of his paycheck on a weekly basis for several months.

We also note that during a discussion between the prosecutor and Mr. Lee’s trial attorney regarding the admissibility of a photocopy, rather than an original, of a receipt, Mr. Lee interrupted the discussion to state that his mother had the original receipt. Additionally, Mr. Lee attempted to refute the testimony of the arson investigator that an accelerant was used to start the fire in the victim’s home. Mr. Lee contended that contrary to the investigator’s testimony, the fire was accidental and was ignited when an éxplosion occurred in the house.

Mr. Lee also attempted to refute the victim’s testimony that he stole the key to her house at the time that he raped her. He claimed that she had given him the key when he was living with her. He further claimed that he was sleeping at the victim’s house when an explosion awakened him in an intoxicated state. He implied that the intoxicated state might have been induced by a drug that the victim had given him without his knowledge. He then claimed that when he awoke in the intoxicated state and realized that the house was in flames, he fled the house. He said that he used the key, which he testified that the victim had given him, to flee through a locked security gate that protected the house.

Mr. Lee was clearly able to consider the testimony of witnesses and assist his trial attorney in challenging what Mr. Lee alleged were misstatements in the testimony. We find that Mr. Lee met the requirements of this Bennett factor.

11S5. Was Mr. Lee able to make simple decisions in response to well-explained alternatives?

It is clearly evident from Mr. Lee’s testimony that he was able to make not only simple, but also complex, decisions regarding the alternatives regarding his trial and the trial strategy. The record reflects that Mr. Lee chose to be tried before a judge rather than a jury, and he made the decision to testify on his own behalf. He made these decisions, which involved the waiver of his constitutional right to a trial before a jury of his peers and his constitutional right not to incriminate himself, after his trial attorney explained to him the choices presented to him and the consequences of those choices. We find that Mr. Lee met this Bennett factor.

6. Was Mr. Lee capable of testifying in his own defense if necessary to the defense strategy in his case?

Mr. Lee did testify in his own defense at the trial, and he testified quite capably on both direct and cross-examination. We find that Mr. Lee met the requirements of this Bennett factor.

7. To what extent, if any, was Mr. Lee’s mental condition apt to deteriorate due to the stress of trial?

Mr. Lee never became emotionally upset or frustrated during his testimony at the trial. Additionally, he answered questions on cross-examination patiently, calmly, and plausibly. We find that Mr. Lee met the requirements of this Bennett factor.

| ¡¿Decision

Based on the foregoing nunc pro tunc analysis of Mr. Lee’s mental status at the time of his trial, we find that he was clearly competent to stand trial. Under the standards set forth by the Supreme Court in the Seals case, Mr. Lee’s convictions and sentences should not be nullified.

DECREE

The decision of the trial judge is affirmed for the reasons set forth in this opinion. Mr. Lee’s convictions and sentences are affirmed.

AFFIRMED.

JONES, J., respectfully dissents.

      . The facts of this case are discussed in detail in the appellate opinion.

      . Lee, 03-0032, p. 1, 852 So.2d at 987.

      . The Bennett factors are derived from the Supreme Court’s opinion in State v. Bennett, 345 So.2d 1129, 1137 (La.1977).

      . The crimes Mr. Lee committed occurred a few days after Christmas.


author: ROLAND L. BELSOME, Judge.

text:
    David A. DURDEN v. PLAQUEMINES PARISH GOVERNMENT.
    No. 2005-CA-1373.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 12, 2006.
    Henry T. Arrington, Elizabeth C. Harper, The Kullman Firm, P.L.C., New Orleans, Counsel for Defendant/Appellant.

      (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge JAMES F. McKAY III, Judge ROLAND L. BELSOME).
   ROLAND L. BELSOME, Judge.

| -,The Plaquemines Parish Government (the appointing authority) appeals the decision of the Plaquemines Parish Civil Service Commission (the Commission) to reinstate the plaintiff, David A Durden (Durden), to employment as a truck driver in Solid Waste District #2. For the following reasons, we reverse the Commission and reinstate the termination of employment imposed by the appointing authority.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

While at work on April 19, 2005, Durden was involved in an altercation with a non-employee, Tony Riley (Riley). The evidence in this case indicates that Riley, who was involved in a prior argument with Durden, came to Durden’s workplace (a trash compactor yard in Port Sulphur, Louisiana) to unload garbage with another individual. According to Durden, Riley started the fight by cursing and pushing him. Durden stated that he hit Riley several times then pulled a knife when Riley picked up a shovel. Riley left and Durden was arrested shortly thereafter.

| gDurden was issued a Notice of Suspension on April 22, 2005. A pre-termination hearing took place on May 5, 2005. Dur-den testified at the hearing that he was acting in self-defense. Durden was terminated effective May 11, 2005.

Durden appealed both the suspension and the termination to the Commission. On June 22, 2005, the Commission conducted a hearing on the consolidated appeals. Four witnesses testified at the hearing: Blair Rittiner, Superintendent of Solid Waste District # 2; Nancy Gordon, Human Resources Manager; Durden; and Scott Rousselle, Superintendent of Solid Waste District # 1. Durden appeared without his attorney, Kevin Connor, whom Durden stated was also representing him in the criminal case.

The evidence presented to the Commission revealed that Durden received a prior Notice of Suspension on April 14, 2003 for fighting with a co-worker. The Notice stated: “Any further incidents of this nature will result in disciplinary action up to and including termination of employment. FINAL WARNING.”

Nancy Gordon, testifying on behalf of the appointing authority, explained the decision to recommend termination as follows:

Even after being told in writing though that if he got in another fight while he was at work he might be discharged, he got in another fight. This one was even more serious, it involved a citizen. And it involved a knife, and a cue ball, and words that he was gonna kill him. He was given an opportunity to come to the pre-termination hearing to rebut those charges or to talk to try to mitigate them somehow. And his response was not any remorse, not that, “I’m sorry,” not that, “I won’t do it again.” His whole response was, “That’s the way I was brought up, someone gets in your face you got to go after them.” And we did not feel that was something that would counter the fact that he had pulled a knife on a citizen. We didn’t have any confidence that being out at a job he might not make that same decision to do again. He didn’t realize probably the proper reaction at that point would have been to reach over and pick up a telephone and dial 911 and get a policeman there for himself. His response was to pull a knife. He had labeen warned previously.... We just couldn’t afford the liability of returning him out to the workplace again. And so the only response — the only thing we could do is terminate his employment.

It was clear from Durden’s testimony that he was aware of the prior warning and that he understood the consequences of fighting again. He testified, however that he was defending himself. Durden also testified that he would not fight again.

On July 5, 2005, the Commission issued its finding that “the Appellant [Durden] acted in self-defense against an aggressive individual, who came to his workplace. However, the Appellant’s actions constituted an overly aggressive defense which requires discipline, but not termination of employment.” The Commission held that Durden should be suspended without pay for seventy-five days beginning April 19, 2005 and ending July 3, 2005. Finally, the Commission recommended that Durden seek counseling for anger management. This appeal followed.

On appeal, the appointing authority asserts three assignments of error on the part of the Commission: (1) the Commission’s factual findings are inaccurate, erroneous, and contrary to evidence; (2) the Commission abused its discretion in reinstating Durden to employment as the Parish’s decision to terminate Durden was supported by reasonable evidence; and (3) the Commission’s decision that Durden acted in self-defense is contrary to the law and record evidence. Durden has not filed an appellee brief herein.

LAW AND ANALYSIS

In Broaden v. Department of Police, 2003-1427, p. 5 (La.App. 4 Cir. 1/14/04), 866 So.2d 318, 321, quoting Smothers v. Department of Police, 2000-1518, pp. 4-5 (La.App. 4 Cir. 5/16/01), 787 So.2d 1110, 1112-1113, this Court reviewed the standard of review in civil service disciplinary cases as follows:

14An employee who has gained permanent status in the classified city civil service cannot be subjected to disciplinary action except for cause expressed in writing, and he may appeal disciplinary action taken against him to the Civil Service Commission. La. Const, art. X, § 8(A). On appeal, the Civil Service Commission has a duty to decide if the appointing authority had good or lawful cause for taking the disciplinary action, and, if so, whether the punishment is commensurate with the offense. Walters v. Department of Police of City of New Orleans, 454 So.2d 106 (La.1984). The appointing authority has the burden of proving by a preponderance of the evidence not only that the complained-of conduct occurred but that it impaired the efficient operation of the governmental entity. Macelli v. Department of Police, 98-0253 (La.App. 4 Cir. 9/9/98), 718 So.2d 1021, 1023. The Commission’s decision is subject to review by the court of appeal on questions of law or fact. Walters, 454 So.2d at 113; Barquet v. Department of Welfare, 620 So.2d 501, 505 (La.App. 4 Cir.1993). Therefore, to modify the disciplinary action of the appointing authority, the Commission must find that there was insufficient legal cause for the disciplinary action taken. Legal cause exists if the facts found by the Commission disclose that the conduct of the employee impaired the efficiency of the public service. Palmer v. Department of Police, 97-1593 (La.App. 4 Cir. 1/28/98), 706 So.2d 658, 659. A reviewing court should not reverse a Commission’s conclusion on whether the disciplinary action is based on legal cause, unless the conclusion is arbitrary, capricious, or an abuse of discretion. Walters, 454 So.2d at 114. When reviewing the Commission’s findings of fact, however, a reviewing court should not reverse or modify a finding unless it is manifestly erroneous. Id. at 113.

In the context of a civil service hearing, “arbitrary or capricious” means that there is no rational basis, for the action taken by the Commission. Bannister v. Department of Streets, 95-0404, p. 8 (La.1/16/96), 666 So.2d 641, 647; Williams v. Sewerage & Water Board, 2004-0025, (La.App. 4 Cir. 5/19/04), 876 So.2d 117, 121.

It is well established that the Commission has the authority to “hear and decide” disciplinary cases, which includes the authority to modify (reduce) as well as to reverse or affirm a penalty. La. Const, art. X, § 12; Branighan v. Department of Police, 362 So.2d 1221, 1223 (La.App. 4 Cir.1978). However, the authority to reduce a penalty can only be exercised if there is insufficient cause for imposing Isthe greater penalty. Id. at 1222. See also Whitaker v. New Orleans Police Department, 2003-0512, p. 4 (La.App. 4 Cir. 9/17/03), 863 So.2d 572, 575. Thus, in the instant case, unless the Commission determined that there was insufficient cause for the appointing authority to impose the discipline, the penalty must stand. Pope v. New Orleans Police Department, 2004-1888, p. 5 (La.App. 4 Cir. 4/20/05), 903 So.2d 1, 5.

In James v. Sewerage and Water Board of New Orleans, 505 So.2d 119 (La.App. 4 Cir.1987), we considered a decision of the Commission, which reversed a five-day suspension of an employee and suggested a reprimand instead. In reversing the Commission and reinstating the suspension, we stated:

It is not the job of the Commission to decide who should be disciplined how. The appointing authority is charged with the operation of his department. He is the one who must run the department, an obviously necessary part of which is dismissing or disciplining employees. While he may not do so without cause, he may, and indeed must, within the exercise of sound discretion, dismiss or discipline an employee for sufficient cause. The Commission is not charged with such operation or such disciplining.

Id. at 121. See also Butler v. New Orleans Police Department, 2003-2180 (La.App. 4 Cir. 10/6/04) 885 So.2d 1266, 1270.

In Chapman v. Department of Police, 97-1384 (La.App. 4 Cir. 1/28/98), 706 So.2d 656, we rejected the Commission’s reduction of a suspension from thirty days to ten days, holding that the Commission is not charged with the operation of the NOPD or disciplining its employees. We concluded that the Commission’s action was simply a substitution of its judgment for the Superintendent’s judgment. We found that the Superintendent had sufficient cause to impose the penalty and that the NOPD carried its burden of proof. The Commission’s action was an arbitrary and capricious interference with the authority of the Superintendent to manage his department.

In Brooks v. Department of Police, 2000-1483 (La.App. 4 Cir. 5/9/01), 787 So.2d 1061, we found the Commission’s reversal of the ten-day and five-day suspension imposed by the Superintendent to be arbitrary and capricious where the Superintendent proved by a preponderance of the evidence that Officer Brooks’s dereliction of duty substantially impaired the efficient and orderly operation of the police department.

In the present case, the Commission did not dispute that the appointing authority had lawful cause for taking disciplinary action against Durden. To the contrary, the Commission concluded that Durden’s actions were overly aggressive and required discipline. The question before us, then, is whether the Commission erred in modifying the sanction imposed by the appointing authority.

The pertinent facts surrounding the incident are not in dispute. Durden acted in response to an altercation initiated by Riley. It is the appointing authority’s position that Durden’s response of pulling a knife was unacceptable behavior; and, in light of the prior warning against fighting, termination was the only option. From the evidence presented, and considering the serious nature of Durden’s actions, we find that the appointing authority acted reasonably and with sufficient legal cause in terminating Durden. Accordingly, we conclude that the Commission acted arbitrarily by reinstating Durden to employment.

CONCLUSION

For the foregoing reasons, the judgment of the Commission is reversed and the termination of Durden by the appointing authority is hereby reinstated.

REVERSED AND RENDERED.

      . The pre-termination hearing was not transcribed. Nancy Gordon, Human Resources Manager for the Plaquemines Parish Government, explained to the Commission that the recording device used to record the hearing did not function properly.

      . There is no evidence in the record of any attorney acting on Durden's behalf in this matter.