author: JOAN BERNARD ARMSTRONG, Chief Judge.

text:
    Berwin A. THOMAS, Latoya M. Augustine and Michael P. Augustine v. NEW ORLEANS REDEVELOPMENT AUTHORITY and Juanita L. Jackson.
    No. 2004-CA-1964.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 6, 2006.

      James E. Uschold, James E. Uschold, PLC, New Orleans, LA, for Plaintiffs/Appellants.
    Christopher Gobert, Collins & Gobert, New Orleans, LA, for New Orleans Redevelopment Authority.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge PATRICIA RIVET MURRAY and Judge LEON A. CANNIZZARO JR.).
   JOAN BERNARD ARMSTRONG, Chief Judge.

hBerwin A. Thomas, Latoya M. Augustine and Michael P. Augustine filed suit in March of 2004 against the New Orleans Redevelopment Authority (NORA) and its vendee, Juanita L. Jackson, to set aside a judgment obtained by NORA expropriating plaintiffs’ property, to set aside a sale of the property by NORA to Ms. Jackson, and for unspecified damages. In connection with that action, the plaintiffs sought and were denied a preliminary injunction enjoining execution or enforcement of the judgment and enjoining Ms. Jackson and NORA from taking any actions inconsistent with the plaintiffs’ ownership of the subject property. The trial court denied preliminary injunctive relief, whereupon the plaintiffs filed the instant appeal. For the reasons that follow, we affirm.

The plaintiffs acquired from Michael A. Thomas property located at 831-33 Sixth Street in New Orleans on April 14,1997 by a notarial act of donation recorded as Instrument No. 138994 in the Conveyance Office of Orleans Parish. The notarial Act of Donation recites the names, birth dates and social security numbers of the plaintiffs, but does not indicate their respective addresses. La.R.S. | ¡>47:2328 A provides that all instruments effecting transfer or real property shall contain the correct names and addresses of vendee and vendor and transferee, together with the municipal or street address of the transferred property. Thus, the Act of Donation was deficient in that it did not include the plaintiffs’ addresses. As a result of this deficiency, the property was maintained on the rolls of the municipal assessor and in the New Orleans real estate records as being owned by “Berwin A. Thomas, et al”, for whom no address was stated other than that of the property itself.

Pursuant to La.R.S. 33:4720.59 A, NORA has the power to acquire, inter alia, by expropriation any blighted property as defined in that statute and to hold, clear, manage and dispose of the property in accordance with procedures set forth in the statute. La.R.S. 33:4720.59 B defines “blighted property” as including those commercial or residential premises, including lots that have been declared vacant, uninhabitable, and hazardous by an administrative hearing officer acting pursuant to applicable law. That section sets forth the criteria to be considered by the hearing officer as (1) premises which because of physical condition are considered hazardous to persons or property; (2) premises declared to be a public nuisance; (3) premises declared to be a fire hazard and (4) premises declared to be vermin-infested or lacking in facilities or equipment required by the housing code of the city of New Orleans. The statute provides in part C for an administrative hearing on the expropriation of the property, and in part D for the certification procedure.

|3On Wednesday, August 9, 2000, Administrative Hearing Officer Earl G. Perry, Jr., J.D. issued a Notice of Judgment in No. 2000-3240 HB, “The City of New Orleans v. Berwin A. Thomas, et al, 831 sixth Street, New Orleans, LA 70115, informing the plaintiffs that the case was adjudicated on July 27, 2000 and they were found guilty of violating 17271 M.C.S. 6-34(25), 43, allowing blighted property and 11625 M.C.S. Sec. 102.4, allowing a public nuisance. The notice sets forth the assessment of a hearing cost of $75 and a fine of $500, and commands the plaintiffs to remit $575 by check or money order to the City of New Orleans, Bureau of Administrative Adjudication. The notice also provided:

In accordance with the hearing officer declaring this property blighted and a public nuisance, it is hereby ordered eligible for expropriation by the New Orleans Redevelopment Authority and eligible for demolition by the proper authorities at your expense with interest, without further notice, subject to your thirty (30) days right to appeal as stated below.
Your failure to remit the above stated amount within (30) days will result in a lien being placed against the subject property, at additional cost to you. Failure to pay said lien along with your next ad valorem tax bill may result in this property being sold in accordance with laws that govern tax sales of immovable property.
You have the right to appeal this decision to the Civil District Court of the Parish of Orleans within thirty (30) days of the date of this communication.
Those owners of property which has been declared blighted and a public nuisance, are subject to civil penalties and criminal penalties pursuant to the Code of the City of New Orleans, and are subject to criminal prosecution by the State of Louisiana pursuant to La.R.S. 14:107.3, “Criminal Blighting of Property.” [Emphasis in original.]

UNORA’s counsel, Herbert A. Cade of Cade, Collins and Gobert, commissioned a title opinion from Christopher Gant of Property Title, Inc. On February 4, 2002, Mr. Gant advised that the property was then owned by the plaintiffs, and set forth the chain of title and exceptions including a property lien against a prior owner, two judgments against the donor, Michael Thomas, a judgment against Michael Augustine and payment of 2001 and 2002 taxes. The title opinion did not contain any evidence as to the plaintiffs’ addresses, except that the property was shown to be owned by Berwin A. Thomas, for whom no address was known other than that of the subject property.

NORA’s counsel consulted the Greater New Orleans telephone directory, where none of the plaintiffs maintained a listing. He consulted the Equifax Polk City Directory of New Orleans where none of the plaintiffs was listed, either by name or by property. Counsel then conducted a nationwide search of internet data bases for Berwin Aaron Thomas, Latoya Monique Augustine and Michael Paul Augustine and any variations thereof, consulting www. whitepages.com, www.infospace.com, www. yahoo.com, www.whowhere.com, www. switehboard.com and www.anywho.com. The trial court examined the computer printouts generated from this investigation. Berwin Thomas was not found in any of these databases. One Latoya Augustine was located at 7227 East Highway 290, Austin, Texas, 78723; and two Michael Augustines were located respectively at Route 2, Ellis, Kansas, 67637 and at 805 Sam Street, New Iberia, Louisiana 70560.

On April 8, 2002, counsel sent the following notice to all plaintiffs at 831-33 Sixth Street, New Orleans, and at the Austin, New Iberia and Ellis addresses. Mr. Cade’s letter follows:

|sThe undersigned is the attorney for the New Orleans Redevelopment Authority, (hereinafter referred to as NORA).
My client is empowered to expropriate properties in the City of New Orleans which have been declared blighted by the Administrative Adjudication Bureau. If you are not the owners of this property, please contact our office immediately or send written notice advising of same.
By Notice of Judgment, Case # 2000-3240HB, dated August 9, 2000 (copy enclosed), the Administrative Adjudication Bureau of the City of New Orleans, declared that 831-33 Sixth Street, owned by Berwin Aaron Thomas, Latoya Monique Augustine and Michael Paul Augustine, was blighted and authorized New Orleans Redevelopment Authority to acquire pursuant to applicable law.
Pursuant to La.R.S. 19:2.2, NORA has had the property appraised by Louisiana State Certified Appraisers, Herbert J. Richardson, Jr., 2475 Canal Street, Suite 202, New Orleans, Louisiana and Irving & Associates, Inc., Post Office Box 8191, New Orleans, Louisiana. Both appraisers agree that the present value of the property is Seven Thousand ($7,000.00) Dollars. The appraisers used the cost and market approaches to determine value of subject property.
NORA stands ready to offer you Seven Thousand and XX/100 ($7,000.00) Dollars less taxes and liens encumbering said property.
It is respectfully requested that you contact me upon receipt of this letter.
Failure to receive a response will result in the filing of the expropriation in court and the depositing of $7,000 in the registry of the court. Said filing will also result in additional cost and fees which will be deducted from the amount deposited.
Your anticipated cooperation is greatly appreciated.

The Ellis letter was receipted by Denise Augustine on April 16, 2002. The Austin, New Iberia and Sixth Street letters were returned, respectively as | fiundelivered/return to sender, attempted/unknown and unclaimed. Denise Augustine did not respond to the letter.

On September 30, 2002, NORA filed suit to expropriate the subject property under its statutory authority. In its petition, NORA noted that Mr. Thomas, Ms. Augustine and Mr. Augustine were absent within the definition of La.C.Civ.P. art. 5251(1), which defines an absentee as a person whose whereabouts are unknown, or who cannot be found and served after a diligent effort, though he may be domiciled or actually present in the state, or a person who may be dead, though the fact of his death is not known and, if dead, his heirs are unknown. For that reason, the petition sought the appointment of an attorney to represent the property owners pursuant to La.C.Civ.P. art. 5091 A(l)(a) and/or 5091 A(l)(c). The trial court, by order dated October 1, 2002, appointed attorney Catherine Smith to represent Mr. Thomas, Ms. Augustine and Mr. Augustine, or their successions, and any unknown heirs, if they should be deceased, and set trial of the expropriation suit for December 13, 2002.

In February of 2003, Ms. Smith filed a note of evidence stating, inter alia that her certified letter to the plaintiffs at the Sixth Street address was returned “unclaimed.” Ms. Smith ran an advertisement in the Times-Picayune newspaper and, in response, Ms. Smith’s paralegal received a call from Latoya Monique Augustine. The paralegal advised Ms. Augustine to contact Mr. Cade regarding the property. Ms. Smith received no further communication from the plaintiffs, nor did any of them contact Mr. Cade. Ms. Smith also filed an affidavit dated February 2, 2003, averring that she made a due and diligent effort to locate the absent defendants. The district court ultimately rendered judgment on September |715, 2003 expropriating the Sixth Street property, whereupon NORA sold the property pursuant to its statutory authority to Juanita Jackson.

In their petition for nullity of that judgment, the plaintiffs contend:

(1) The expropriation judgment is an absolute nullity under La.C.Civ.P. art.2002 and the Federal and State constitutions. La.C.Civ.P. art. 2002 A(2) provides in pertinent part that a final judgment shall be annulled if it is rendered against a defendant who has not been served with process as required by law.

(2) The expropriation judgment is a relative nullity under La.C.Civ.P. art.2004, which provides that a final judgment obtained by fraud or ill practices may be annulled provided that the nullity action is brought within one year of the plaintiffs’ discovery of the fraud or ill practices.

The plaintiffs contend that Ms. Jackson knew that the plaintiffs lived in Louisiana and that they could be reached through Pashenia Thomas. However, the trial court did not accept the plaintiffs’ allegation in this respect. They also contend that NORA requested appointment of a curator before service was attempted by the sheriff, that NORA did not make a reasonable or diligent effort to locate and serve the plaintiffs prior to seeking appointment of the curator, and that NORA made no effort to locate the plaintiffs after suit was filed.

In support of their claim of fraud and ill practices, the plaintiffs alleged that because NORA had been involved in an expropriation case wherein a judgment was reversed because of its failure to make a diligent effort to locate and serve the defendant prior to appointment of a curator it knew or should have known that service on a curator would violate due process. This begs the question of whether the curator in this case made such a diligent effort to locate the property owners.

hThe plaintiffs also alleged that NORA was guilty of fraud because its failure to comply with statutory and constitutional requirements relative to expropriation meant that NORA had no right of action and stated no cause of action against the plaintiffs. Because the plaintiffs did not receive notice of the adjudication hearing at which the property was declared blighted, there was no valid adjudication of blights and NORA had no right to expropriate the property. Because we find the record does not support the plaintiffs’ claim of failure to comply with statutory and constitutional requirements, this claim is without merit.

The plaintiffs also allege that NORA did not offer the plaintiffs technical or financial assistance available for rehabilitation of the property as provided for in La.R.S. 33:4720.59 E(5). We note, however, that where the owners cannot be located, this requirement fails for impossibility.

The plaintiffs also allege that NORA failed to comply with the requirements of La.R.S. 19:2.2(A) to provide the name, address, methodology and evaluation of the appraiser and offer to compensate the owner in an amount equal at least to the lowest appraisal or evaluation. However, we note that Mr. Cade sent letters containing this information to the plaintiffs at their address of record as well as to those addresses discovered by his independent investigation.

On appeal, the plaintiffs contend that their motion for a preliminary injunction should have been granted, and assign two errors: (1) that under La.C.Civ.P. art. 3663 they are entitled to preliminary in-junctive relief upon a prima facie showing that they owned or were in possession of the subject property for more than one year prior to the disturbance; and (2) that under La.C.Civ.P. art. 3601 they are entitled to preliminary injunctive relief upon a prima facie showing that they will prevail in their nullity action.

|<An appeal may be taken as a matter of right from an order or judgment relating to a preliminary injunction, but such an order or judgment shall not be suspended during the pendency of an appeal unless the court in its discretion so orders. La. C.Civ.Pro. art. 3612.

La.C.Civ.P. art. 3663 provides in pertinent part that injunctive relief to protect or restore possession of immovable property or of a real right therein, is available to a person who is disturbed in the possession which he and his ancestors in title have had for more than a year of immovable property of which he claims the ownership, the possession, or the enjoyment. Although under these circumstances the plaintiffs need not prove irreparable harm, they must make a prima facie showing that they will prevail on the merits. Monroe Real Estate & Development Co., Inc. v. Sunshine Equipment Co., Inc., 35,555 (La.App. 2 Cir. 1/23/02), 805 So.2d 1200.

Similarly, jurisprudence under the general injunction article, La.C.Civ.P. art. 3601(A), requires that the plaintiffs seeking a preliminary injunction must make a prima facie showing that they will prevail on the merits of the case. State ex rel Dept. of Social Services, Office of Family Support ex rel. Chesser v. Brunette, 2003-1965 (La.App. 4 Cir. 6/2/04), 876 So.2d 244; Licfro, Inc. v. State, ex rel Dept. of Reve nue, Office of Alcohol and Tobacco Control, 2003-0737 (La.App. 4 Cir.10/1/03), 859 So.2d 739.

The plaintiffs contend that all they need to prove to make a prima facie showing that they are entitled to have the expropriation judgment declared null is that they were owners or possessors of a real right to the Sixth Street property for more than one year prior to the expropriation judgment. This argument is based on only one element at issue, and ignores the context of this case, where the issue is |inwhether the expropriation was based upon appropriate legal proceedings in which federal and state due process were afforded to the property owners.

To state a claim of violation of federal procedural due process, the plaintiffs must allege a violation of a right secured by the federal constitution or laws of the United States and demonstrate that the alleged deprivation was committed by a person acting under color of state law. See Moore v. Willis Indep. School Dist., 233 F.3d 871, 874 (5th Cir.2000). The plaintiffs clearly have a protected property interest in 831-33 Sixth Street, that is, the right to devote the property to any legitimate use. Washington ex rel. Seattle Title Trust Co. v. Roberge, 278 U.S. 116, 121, 49 S.Ct. 50, 51, 73 L.Ed. 210 (1928). Thus, the plaintiffs were entitled to constitutional procedural due process before NORA could deprive them of that property interest.

The next question to be addressed is, to what process are these plaintiffs entitled? In Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950), the Supreme Court held that an elementary and fundamental requirement of due process in any proceeding to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and to afford them an opportunity to present their claims. In determining whether notice was reasonable, due regard for the practicality and peculiarities of the case must be considered. Id. In this case, it was the plaintiffs own actions in failing to comply with the Louisiana recordation statute, that caused notice to be difficult if not impossible. Furthermore, the means employed must be such as one desirous of informing the absentee might reasonably adopt to accomplish it. Clearly, NORA’s counsel and the curator endeavored assiduously to locate the property owners, using traditional means such as local directories and newspaper publication as well as internet data bases.

| ^Notice was mailed to the tax roll address, as well as to all addresses located by the various means referred to herein. Notice by mail or other means as certain to ensure actual notice is a minimum constitutional precondition to a proceeding which will adversely affect the liberty or property interest of any party if its name and address are reasonably ascertainable. Mennonite Bd. Of Missions v. Adams, 462 U.S. 791, 800, 103 S.Ct. 2706, 2712, 77 L.Ed.2d 180 (1983).

In Dusenbery v. United States, 534 U.S. 161, 122 S.Ct. 694, 151 L.Ed.2d 597 (2002), the Supreme Court clarified the scope of the Mennonite decision, rejecting the contention that the latter required actual receipt of notice to satisfy due process. Dusenbery holds that all that is required is that the state attempt to provide actual notice.

We find that the record supports a finding that the curator and NORA’s counsel made all reasonable efforts to ascertain the plaintiffs’ respective addresses and, in the case of Ms. Augustine, the curator achieved actual notice. Therefore, we do not find a violation of the plaintiffs’ rights to federal due process.

We likewise find that there is no proof of violation of state due process. The Louisiana Constitution of 1974 provides that no person shall be deprived of life, liberty or property, except by due process of law. La. Const. Art. 1, § 2. Unlike the Louisiana Constitution’s provision on equal protection, which is distinct from that provided in the Fourteenth Amendment to the federal Constitution, the guarantee of due process does not vary from the federal provision. Progressive Sec. Ins. Co. v. Foster, 97-2985, p. 22 (La.4/23/98), 711 So.2d 675, 688; Plaquemines Parish Gov’t v. River/Road Constr., Inc., 2001-2222, p. 11 (La.App. 4 Cir. 8/28/02), 828 So.2d 16, 24. Applying the Mennonite/Dusenbery standard, |iawe find that NORA’s and the curator’s actions were reasonable endeavors to provide actual notice of the pendency of the blighted property process and the expropriation litigation to the plaintiffs.

The plaintiffs contend that the curator was not appointed properly because sheriffs service had not been attempted on the property owners prior to her appointment. The record clearly supports a finding that such service would not have been any more effective than the previous attempts directing certified mail to the property owners. There is no requirement that NORA attempt a proven vain and useless act.

The plaintiffs claim that the expropriation petition was deficient because the allegations made therein and the exhibits attached thereto were not verified or supported by affidavit. Plaintiffs rely on La. C.Civ.P. art. 2637(A), which provides an exception to the general rule requiring authentic evidence of a plaintiffs right to use executory process to enforce a mortgage, security agreement or privilege. According to the article, the need for appointment of a curator in an executory process case may be made by verified petition or affidavit, and does not require authentic proof. This article is inapplicable to the instant case, because NORA did not seek to use executory process in its expropriation suit. The suit proceeded via ordinaria against the defendants. Likewise, the case of Security Homestead Ass’n v. Fuselier, 591 So.2d 335 (La.1991) relied upon by the plaintiffs involved appointment of a curator in an executory proceeding and is not applicable to the instant case. We find no statutory or jurisprudential basis for application of executory process procedural requirements to a non-executory expropriation suit.

The plaintiffs have not shown that the various notices were not reasonably calculated under all circumstances to apprise interested parties of the pendency of 113the action and to afford them an opportunity to present their objections. Under the circumstances of this case, the curator and NORA’s counsel were diligent in their efforts to locate the property owners. The curator did, in fact, locate one of the owners, Ms. Augustine, who was advised of the pendency of the expropriation, and who for whatever reason did not enter a legal objection to it. We cannot determine from the record whether Ms. Augustine notified Mr. Augustine and Mr. Thomas of the imminent expropriation of their co-owned property.

The plaintiffs’ not having shown the likelihood of prevailing on the merits of their due process claim, there has been no showing that the trial court’s judgment denying the preliminary judgment is erroneous. Whether the preliminary injunction was sought under La.C.Civ.P. art. 3601 or La. C.Civ.P. art. 3663, the plaintiffs had the burden of showing that likelihood. Ormond Country Club v. Dorvin Develo pments, Inc., 498 So.2d 144, 150 (La.App. 5 Cir.1986). The plaintiffs did not demonstrate at the preliminary hearing that the curator was improperly appointed or that she did not perform her duties in an appropriate manner. Indeed, she did succeed in making contact with one of the owners, Ms. Augustine, and advising her of the pendency of the proceedings. At this stage of the proceedings, the former owners are not entitled to injunctive relief.

For the foregoing reasons, we affirm the judgment of the trial court and assess the costs of this appeal to the appellants.

AFFIRMED.


source: Caselaw Access Project

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

license: Public Domain

text:
    John JACKSON v. DEPARTMENT OF POLICE.
    No. 2006-CA-0347.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 11, 2006.

      Craig P. Hart, Raymond C. Burkart III, Law Office of Craig P. Hart, Inc., Coving-ton, LA, for Plaintiff/Appellant.
    Penya M. Moses-Fields, City Attorney, James B. Mullaly, Assistant City Attorney, Joseph V. DiRosa, Jr., Chief Deputy City Attorney, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge DENNIS R. BAGNERIS, Sr., Judge MICHAEL E. KIRBY, and Judge ROLAND L. BELSOME).
   DENNIS R. BAGNERIS, Sr., Judge.

|! John Jackson appeals the decision of the Civil Service Commission (CSC) transferring him from the Public Integrity Bureau (PIB) resulting in a ten percent pay reduction. For the reasons to follow, we affirm the decision of the CSC.

Lt. Jackson is a white police officer who has been with the Police Department for over thirty-five years. The PIB Commander, Lonnie Swain, an African American male, selected Lt. Jackson to serve in the PIB. The PIB department is required to investigate fellow police officers whom have complaints filed against them. The police officers working in the PIB receive a ten percent pay rise and the use of an unmarked car. Lt. Jackson has been with the PIB since 1991.

Lt. Jackson was accused of engaging in race discrimination and other biased behavior and was transferred to another department resulting in a ten percent reduction in pay. Lt. Jackson was transferred by Com. Swain and replaced by an African-American female officer. After being transferred, Lt. Jackson confronted Com. Swain about his decision and recorded the conversation without Com. Swain’s knowledge. The recording had no effect on the CSC’s decision nor does it serve a purpose on appeal.

|2Lt. Jackson appealed to the CSC arguing that there was no reason to transfer him and that the decision was purely racial. He further argues that the action of being transferred was an unfair “disciplinary” action. It is from this decision that Lt. Jackson appeals to this Court.

Although Lt. Jackson offers three assignments of error and three additional issues for this Court to review, we find that the sole issue in front of us is whether the CSC erred in denying Lt. Jackson’s appeal. In discussing this issue we will address the pertinent arguments presented by Lt. Jackson.

The Civil Service Commission has a duty to decide independently from the facts presented whether the appointing authority has a good or lawful cause for taking disciplinary action and, if so, whether punishment imposed is commensurate with the dereliction. Walters v. Department of Police of New Orleans, 454 So.2d 106, 113 (La.1984). The appointing authority has the burden of proving by the preponderance of the evidence the occurrence of the complained of activity and that the conduct complained of impaired the efficiency of the public service. Cittadino v. Department of Police, 558 So.2d 1311, 1315 (La.App. 4 Cir.1990). In reviewing the decisions of a Civil Service Commission, a reviewing court should not reverse a Commission conclusion as to the existence or absence of cause for dismissal, unless the decision is arbitrary, capricious or an abuse of the Commission’s discretion. Jones v. Louisiana Department of Highways, 259 La. 329, 338, 250 So.2d 356, 359 (1971). In civil service disciplinary cases, an appellate court is presented with a multifaceted review function. First, as in other Lcivil matters, deference will be given to the factual conclusion of the Commission. Hence, in deciding whether to affirm the Commission’s factual finding, a reviewing court should apply the clearly wrong or manifest error rule prescribed generally for appellate review. Walters, 454 So.2d at 114.

Second, in evaluating the Commission’s determination as to whether the disciplinary action is based on legal cause and the punishment is commensurate with the infraction, this Court should not modify the Commission’s order unless it is arbitrary, capricious or characterized by an abuse of discretion. Id. “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; Whitaker v. New Orleans Police Dept. 2003-0512, p. 3 (La.App. 4 Cir 9/17/2003) 863 So.2d 572, 575.

Lt. Jackson argues that the transfer out of the department with the decrease in salary constitutes a disciplinary action and that he was disciplined without cause. He contends that the investigation conducted by Com. Swain violated the administrative procedures his bureau is supposed to follow. Those procedures include documenting the complaint, interviewing the complaining parties, conducting a formal investigation and forwarding an investigation package to the Superintendent of Police. The Appellee, the Department of Police, argues that Lt. Jackson erroneously relies on Noya v. Dep’t of Fire, City of New Orleans, 609 So.2d 827 (La.1992), wherein firefighters appealed the ruling of the City Civil Service Commission, which maintained an exception of no cause of action with respect to their claim of retaliatory transfer. This court affirmed, certiorari was granted and the Supreme Court reversed, remanded, and denied rehearing. On remand, the Civil Service Commission found no cause of action and once again an Rappeal was taken. We held that the firefighters established retaliatory transfer based on showing that city reinstated them under duress of the Civil Service Commission’s order, only to transfer them, without reason, less than one month later, to less prestigious and less remunerative job duties.

In the instant case, the CSC specifically states that “[ojrdinarily a transfer of an officer to a different unit does not constitute discipline and is not subject to appeal to the Civil Service Commission. But in this case Appellant has alleged racial discrimination which gives him the right to appeal.”

Legal cause exists whenever an employee’s conduct impairs the efficiency of the public service in which the employee is engaged. Fisher v. Dep’t of Health and Human Resources, Office of Human Dev., 517 So.2d 318, 320 (La.App. 1 Cir.1987). The appointing authority has the burden of proving the impairment. La. const. Art. X, § 8(A); Neustadter v. Sewerage and Water Board of New Orleans, 544 So.2d 1289, 1290 (La.App. 4 Cir.1989). The appointing authority must prove by a preponderance of the evidence the occurrence of the complained of activity and prove that the conduct complained of impaired the efficiency of the public service and that it bears a real and substantial relationship to the efficient operation of the public service. Newkirk v. Sewerage and Water Board, 485 So.2d 626, 627 (La.App. 4 Cir.1986), writ denied, 489 So.2d 920 (La.1986). The burden of proof is less in a Civil Service Commission hearing than in a criminal proceeding. Although the facts must be clearly established, they need not be established beyond a reasonable doubt as in a criminal trial. Lombas v. Dep’t of Police, 467 So.2d 1273, 1277 (La.App. 4 Cir.1985); Herbert v. Dep’t of Police, 362 So.2d 1190, 1191 (La.App. 4 Cir.1978); Cittadino v. Dep’t of Police 558 So.2d 1311, 1315 (La.App. 4 Cir.1990).

1 Jfhis case is distinguishable from Noya v. Dep’t of Fire, City of New Orleans. We cannot conclude that the CSC was clearly wrong in upholding the decision of the Appointing Authority to transfer Lt. Jackson to another department. Nor can this Court conclude that Lt. Jackson’s transfer was a disciplinary action just because his pay was reduced.

Lt. Jackson offers a convoluted insight into why his transfer was a disciplinary action, his argument lacks cohesiveness and he fails to present an organized line of reasoning that we can intelligibly address. The mere citing of law without a legal analysis is not enough. Lt. Jackson took the CSC’s conclusion that “perhaps he (Lt. Jackson) should have been allowed a better opportunity to investigate rumors” and created the argument that the proper procedures were not adhered to. We find that this argument lacks merit.

On appeal to the CSC, Lt. Jackson argues that his transfer was racially motivated and claims racial discrimination. Lt. Jackson has the burden of proving his claim. The record contains testimony by different police personnel, including Com. Swain. Com. Swain testified that at least three people came to him to complain that Lt. Jackson showed a preference when assigning duties, that “he was biased in his assignment of call-out duties, and also the concerns as relates [sic] to the content of the conversation that he was engaged in, which they considered to be racial in tone.”

Com. Swaim further testified that an African American officer in the PIB overheard Lt. Jackson state that “the Department needs more people like us” concluding that Lt. Jackson meant Caucasian people. The CSC’s findings best support the conclusion that Lt. Jackson’s transfer had nothing to do with his race. | fiCom. Swain explained, and the CSC quoted his testimony that, “[t]his is a, should be, a professional work setting, I don’t need individuals engaging in that sort of conversation where obviously it’s going to create undertones of whatever it may be. I have individuals who are obviously upset now, based on the fact of a conversation that he’s involved. What his intentions were, what exactly did he mean, I don’t have a clue. But bottom line is, it’s inappropriate, it’s created a problem, I have to resolve it. Simple as that.”

As to the use of the word “us” by Lt. Jackson he explained that “[I]’m talking about people who, like myself, like the job and want to do the best that they can on the job. So, I use it all the time, it’s just ‘us’ is a fairly common word.” Lt. Jackson failed to prove to the CSC that Com. Swain transferred him out of PIB because of his race. It is evident that the comments Lt. Jackson made were construed by some to be racially motivated, however the record reveals that this was not the sole purpose of his transfer. Where there is a sufficient basis for the imposition of the disciplinary action, the Civil Service Commission may not substitute its judgment of what the proper penalty should be for the penalty imposed by the appointing authority based on what the Civil Service Commission perceives to be mitigating factors. Shepack v. New Orleans Police Dept. 2000-1345 (La.App.4Cir.5/16/2001); 791 So.2d 733, 736.

Lt. Jackson failed to meet his burden of proof upon appealing to the CSC. Once again, he failed to offer this Court a legal argument to support this instant appeal.

Decree

|7For the reasons above we affirm the decision of the Civil Service Commission.

AFFIRMED.

      . The use of the term "disciplinary action” throughout this opinion does not suggest that Lt. Jackson was indeed disciplined by Com. Swain. The corresponding case law uses this term because the cases dealing with an appeal to the CSC are a result of a disciplinary action having been taken against an employee. The law applies in the instant case because Lt. Jackson was able to appeal to the CSC because he alleges discrimination.


author: JAMES F. McKAY III, Judge,

text:
    STATE of Louisiana v. Frank RIVERS.
    No. 2005-KA-1121.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 11, 2006.
    Eddie J. Jordan, Jr., District Attorney of Orleans Parish, David S. Pipes, Assistant District Attorney of Orleans Parish, New Orleans, Louisiana, for Plaintiff/Appellant.
    (Court composed of Judge JAMES F. McKAY III, Judge TERRI F. LOVE, Judge MAX N. TOBIAS, JR.).
   JAMES F. McKAY III, Judge,

h STATEMENT OF THE CASE

On December 10, 2003, the State filed a bill of information charging Jacquelyn Lemon and Frank Rivers, the appellee herein, with one count each of possession of heroin, a violation of La. R.S. 40:966. The bill was docketed under case number 444-022. The defendants were arraigned and entered not guilty pleas on December 23, 2003. At the scheduled motion hearing on February 2, 2004, the court found no probable cause after the police officers failed to appear. On February 18, 2004, the State entered a nolle prosequi, and the court ordered a release of the defendants.

On March 1, 2004, the State reinstituted the charge against both defendants under case number 445-961. The matter was initially allotted to Section “C” and then was transferred to Section “K” to follow the prior case. The defendants were arraigned on March 18, 2004, and again they entered not guilty pleas. The motion hearing proceeded on April 21, 2004, and at the conclusion of the hearing the court found probable cause and denied the motion to suppress the evidence. Trial was scheduled for May 10, 2004, but was continued on that date on motion of the defense. Another defense motion to continue the trial was granted on July 21,L2004, and the court set a new trial date of August 19, 2004. On that date, counsel for the defendant-appellee Frank Rivers moved for a continuance, which was granted. The co-defendant, Jacquelyn Lemon, withdrew her prior plea of not guilty and entered a plea of guilty as charged. She also gave a note of evidence. Thereafter, several status hearings were scheduled, and finally a trial date of November 16, 2004 was set. On that date the State entered another nolle prosequi

On January 19, 2005, the charge was reinstituted against the appellee alone under case number 455-424, the instant matter. On January 24, 2005, the case was transferred to Section “K” to follow the prior case. The appellee entered a not guilty plea at arraignment on February 16, 2005. On March 14, 2005, the appellee filed a motion to quash, to which the State responded on March 17, 2005. The court granted the motion on March 18, 2005. On March 23, 2005, the State filed a notice of appeal; another motion was filed on May 9, 2005. This appeal follows.

STATEMENT OF THE FACTS

Because there was no trial in this matter, little of the facts of the offense are known. A police report contained in the exhibit record from case number 444-022 reflects that a search warrant was obtained for 2505 St. Ann Street. The basis for the warrant was an undercover purchase of narcotics from that address; the police identified the appellee Frank Rivers as the seller of narcotics. Police surveillance also reflected additional sales from that location by appellee. During the search of the residence a weapon and heroin were found, and the defendants were arrested. A review of the transcript of August 19, 2004, which was obtained by this Court | ¡¡after the record was lodged, shows that Jacquelyn Lemon in her note of evidence stated that the heroin found in her residence on October 10, 2003, belonged to her. She denied that it belonged to her co-defendant Frank Rivers. She further stated under oath that he knew nothing about the narcotics in her home.

DISCUSSION

The only issue on appeal is whether the district court erred by granting the defendant-appellee’s motion to quash the bill of information. The State assigns as error three different possible bases for the court’s decision to grant the motion to quash. Although the transcript of the hearing on the motion to quash does not contain any argument by the parties or the reasons for the district court’s ruling, the trial court judge later issued a per curiam to explain why he granted the motion to quash in this case and in a number of similar cases. The trial court judge explained in the per curiam that he granted the motion to quash, because after he denied the State’s motion to continue on the grounds that the motion did not conform to the requirements of La.C.Cr.P. art. 707, the State entered a nolle prosequi. This had the effect of giving the State the continuance it sought but had been denied, and it was for this reason according to the per curiam that the trial court judge granted the motion to quash.

However, the motion to quash filed by defense counsel in this matter did not assert the alleged improper dismissal of the charge and subsequent reinstitution as the basis for the motion. Instead, in the motion the defendant asserted that the bill of information should be quashed under La. C.Cr.P. art. 485, which states:

14If it appears from the bill of particulars furnished under Article 484, together with any particulars appearing in the indictment, that the offense charged in the indictment was not committed, or that the defendant did not commit it, or that there is a ground for quashing the indictment, the court may on its own motion, and on motion of the defendant shall, order that the indictment be quashed unless the defect is cured. The defect will be cured if the district attorney furnishes, within a period fixed by the court and not to exceed three days from the order, another bill of particulars which either by itself or together with any particulars appearing in the indictment so states the particulars as to make it appear that the offense charged was committed by the defendant, or that there is no ground for quashing the indictment, as the case may be.

In State v. Byrd, 96-2302, pp. 18-19 (La.3/13/98), 708 So.2d 401, 411, the Supreme Court discussed a motion to quash based on Article 485:

A motion to quash is, essentially, a mechanism whereby pre-trial pleas are urged, i.e., pleas which do not go to the merits of the charge. At a hearing on such a motion, evidence is limited to procedural matters and the question of factual guilt or innocence is not before the court. La.C.Cr.P. art. 531 et. seq.; State v. Rembert, 312 So.2d 282 (La.1975); State v. Patterson, 301 So.2d 604 (La.1974).
In considering a motion to quash, a court must accept as true the facts contained in the bills of information and in the bill of particulars, and determine as a matter of law and from the face of the pleadings, whether a crime has been charged; while evidence may be adduced, such may not include a defense on the merits. State v. Gerstenberger, 260 La. 145, 255 So.2d 720 (1971); State v. Masino, 214 La. 744, 750, 38 So.2d 622 (1949) (“the fact that defendants may have a good defense is not sufficient grounds to quash the indictment”).
As this Court held in State v. Legendre, 362 So.2d 570, 571 (La.1978), “[t]he question, then, is whether the indictment charges a valid offense. If it does not, it is a defective indictment and its invalidity may be declared by a ruling on a motion to quash, for a motion to quash may be based on the ground that the indictment fails to charge an offense which is punishable under a valid statute.” Legendre goes on to note that “[i]t will not do to base an indictment for a serious offense ... upon an allegation of fact which cannot conceivably satisfy an essential element of the crime.... ” Legendre, 362 So.2d 570, 571.
FN19. At issue in Legendre was whether a dangerous weapon could encompass “Concrete on Parking Lot.”

[Jn Byrd, the defendants were indicted for knowingly storing hazardous waste without a permit. They attempted to have the indictment quashed on the grounds that the facility was in compliance with the existing regulations and that they did not own or operate the facility at the time of the conduct at issue. The Supreme Court found that these assertions were factual defenses and were not proper grounds for a motion to quash.

In State v. Nichols, 00-1087 (La.App. 5 Cir. 10/31/00), 772 So.2d 263, and several appeals consolidated with it, the defendants were charged with violating La. R.S. 37:219 which provides that it is unlawful for any attorney to pay money or give any other thing of value to any person in order to obtain representation of a client. The defendants were alleged to have been paid money by an attorney in exchange for referring personal injury clients. The bills of information did not allege nor did the State contend that the defendants were themselves attorneys. In their motions to quash, the defendants alleged that the bills of information were insufficient because they were not attorneys and the bills did not allege that they were. Thus, the defendants argued, from the face of the bills of information that it could be determined as a matter of law that they had not committed the offenses charged. The State responded by arguing that the defendants were principals to the crimes; the appellate court rejected this argument because there exist separate statutes, e.g., La. R.S. 14:356 et seq., which criminalize the receiving of compensation for referring clients to attorneys. The court ultimately held that the motions to quash were proper.

In the instant case, in the written motion to quash, the appellee averred that his co-defendant had entered an unqualified plea of guilty to possessing the narcotics in this case. He averred, “the State will be unable to sustain its burden of | fiproof beyond a reasonable doubt. No illegal substance was found in defendant’s possession or constructive possession.” However, as the State correctly notes in its appeal brief, the assertion in the motion to quash goes to whether the State will be able to convince a jury at trial that the appellee was in constructive possession of the narcotics seized from the residence. The co-defendant’s testimony that he had no knowledge of the heroin in her residence must be evaluated by the trier of fact and weighed against evidence presented by the State. The police report found in the record indicates that there may be ample testimony that shows that the appel-lee was engaged in narcotics sales from the residence, including an undercover sale to an informant; such testimony if believed by the jury could establish the ap-pellee’s constructive possession of the narcotics.

The per curiam issued by the trial court in this matter made no reference to the basis for the motion to quash asserted by the defendant in his motion. Nevertheless, the appellant correctly argues as its first assignment of error that, if this was the basis for the court’s ruling, the trial court erred in granting the motion to quash. This assignment of error has merit.

In its second assignment of error, the State argues that, if the trial court decided to grant the motion to quash on the grounds that the defendant’s constitutional right to a speedy trial was violated, although in the per curiam the court indicates it did not do so, then such a decision was in error. The State raises this issue because the defense allegedly made an oral argument that a speedy trial violation had occurred. However, the transcript of the ruling on the motion to quash reveals no such oral argument. This assignment of error is without merit.

In its third assignment of error the State argues that granting the defendant’s motion to quash was not a permissible response to the State’s failure to comply |7with La.C.Cr.P. art. 707, which requires that a motion for a continuance be in writing and filed at least seven days prior to trial. The State does not dispute that it orally moved for a continuance on November 16, 2004, and when the motion was denied, the State nolle prosequied the case. The State argues, however, that its failure to comply with La.C.Cr.P. art. 707 was unavoidable because of the surprise non-appearance of its witness, and thus it did not intentionally circumvent the rules of procedure as suggested by the trial court in its per curiam. It also suggests that the trial court’s most drastic remedy for the State’s failure to comply would have been the action taken at the time, denying the continuance, and not quashing a subsequent bill of information.

Moreover, the State takes the position that the trial court’s statement in the per curiam that the State should not be allowed take advantage of a rule of procedure which is not available to the defense overlooks the fact that, in this case, the defense orally moved for continuances and that they were granted. The State suggests that it is just as unfair to make it strictly comply with La.C.Cr.P. art. 707, but not the defendant.

The State is correct that there is no provision for quashing the bill of information for a failure to comply with the mandates of La.C.Cr.P. art. 707. It |sappears that the trial court was frustrated with the State’s failure to have its witness appear for trial, including in a situation such as this where the only witnesses were police officers and that they also did not appear for the motion to suppress hearing. However, this frustration cannot serve as a valid basis for quashing the bill of information in this case where neither the defendant’s statutory nor constitutional speedy trial right was violated by the State’s failure to comply with the requirements of La.C.Cr.P. art. 707. State v. Polk, 2005-1118 (La.App. 4 Cir. 5/31/06), 933 So.2d 838. This assignment of error also has merit.

Accordingly, for the above and foregoing reasons the trial court’s ruling granting the motion to quash is vacated, and the matter is remanded for further proceedings.

JUDGMENT VACATED; REMANDED FOR FURTHER PROCEEDINGS.

      . The police report shows that both defendants were initially arrested for possession of heroin with the intent to distribute and possession of narcotics while in possession of a firearm, a violation of La. R.S. 14:95(E). Additionally, because the appellee was on parole for armed robbery, he was also arrested for violating La. R.S. 14:95.1, felon in possession of a firearm. The district attorney's office only accepted a charge of simple possession of heroin, refusing all of the other charges.

      . La.C.Cr.P. art. 532, which sets forth the general grounds for a motion to quash, states in pertinent part that a motion to quash may be based on the grounds that "(5) A bill of particulars has shown a ground for quashing the indictment under Article 485.”

      . La.C.Cr.P. art. 532 sets forth the general grounds upon which a motion to quash can be granted. That article provides:
      A motion to quash may be based on one or more of the following grounds:
      (1) The indictment fails to charge an offense which is punishable under a valid statute.
      (2) The indictment fails to conform to the requirements of Chapters 1 and 2 of Title XIII. In such case the court may permit the district attorney to amend the indictment to correct the defect.
      (3) The indictment is duplicitous or contains a misjoinder of defendants or offenses. In such case the court may permit the district attorney to sever the indictment into separate counts or separate indictments.
      (4) The district attorney failed to furnish a sufficient bill of particulars when ordered to do so by the court. In such case the court may overrule the motion if a sufficient bill of particulars is furnished within the delay fixed by the court.
      (5) A bill of particulars has shown a ground for quashing the indictment under Article 485.
      (6) Trial for the offense charged would constitute double jeopardy.
      (7) The time limitation for the institution of prosecution or for the commencement of trial has expired.
      (8) The court has no jurisdiction of the offense charged.
      (9) The general venire or the petit jury venire was improperly drawn, selected, or constituted.
      La.C.Cr.P. art. 534 sets forth the special grounds for a motion to quash a bill of information. La.C.Cr.P. art. 534 provides:
      A motion to quash an information may also be based on one or more of the following grounds:
      (1) The information was not signed by the district attorney; or was not properly filed.
      (2) The offense is not one for which prosecution can be instituted by an information.

      . There is no indication from the record or allegation by the State that it sought to have instanter subpoenas issued to the police officers or requested that the court sanction the officers for not appearing pursuant to subpoenas. A review of the November 16, 2004 hearing transcript shows that the State merely moved for a continuance without even giving reasons for its motion, and as soon as the continuance was denied, the State dismissed the charge.


author: BROWN, Chief Judge.

text:
    STATE of Louisiana, Appellee, v. John KENNEDY, Jr., Appellant.
    No. 41,388-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 16, 2006.

      Carey J. Ellis, Louisiana Appellate Project, for Appellant.
    J. Schuyler Marvin, District Attorney, John M. Lawrence, R. Lane Pittard, Assistant District Attorneys, for Appellee.
    Before BROWN, GASKINS, and PEATROSS, JJ.
   BROWN, Chief Judge.

| defendant, John Kennedy, Jr., originally charged with three counts of aggravated incest, a violation of La. R.S. 14:78.1, was allowed to plead guilty to one count of sexual battery, a violation of La. R.S. 14:43.1. The victims were minors, defendant’s niece and nephew. Defendant agreed to cooperate with the authorities regarding similar charges against his brother and father, who are the father and grandfather of the children involved. Defendant was sentenced to ten years at hard labor without benefit of parole, probation, or suspension of sentence. Following the denial of his motion to reconsider sentence, defendant filed the instant appeal, urging excessiveness of the sentence imposed by the trial court. Finding that the record failed to state the factual basis for the trial court’s sentencing decision, we vacate the sentence and remand for sentencing in compliance with La. C. Cr. P. art. 894.1.

Discussion

Sentencing

Louisiana Revised Statute 14:43.1 provides that whoever commits the crime of sexual battery shall be punished by imprisonment, with or without hard labor, without benefit of parole, probation, or suspension of sentence for not more than ten years.

A trial court has broad discretion to sentence within the statutory limits. Absent a showing of manifest abuse of that discretion, we may not set aside a sentence as excessive. State v. Guzman, 99-1528, 99-1753 (La.05/16/00), 769 So.2d 1158; State v. June, 38,440 (La.App.2d Cir.05/12/04), 873 So.2d 939. La. Const. Art. 1 § 20 prohibits cruel, excessive, L,or unusual punishment. The jurisprudence has defined excessive punishment as grossly disproportionate to the harm committed and shocking to the sense of justice. State v. Hogan, 480 So.2d 288 (La.1985).

According to the initial bill of information the alleged crimes were committed between December 2002 and November 2003. The children’s ages ranged between seven and ten years. Beyond the bill of information there is little, if any, factual information contained in the record. The state’s recitation of facts at the guilty plea was unenlightening. The trial court’s sentencing colloquy was equally inadequate.

Louisiana Code of Criminal Procedure article 894.1 sets forth sentencing guidelines that are to be followed by the trial court. As provided by subsection (C) of article 894.1, it is required that the sentencing court state for the record the considerations taken into account and the factual basis therefor in imposing sentence. (Emphasis added). The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. Art. 894.1, not rigid or mechanical compliance with its provisions. State v. Lanclos, 419 So.2d 475 (La.1982); State v. Kemp, 39,358 (La.App.2d Cir.03/11/05), 896 So.2d 349, writ denied 05-0937 (La.12/09/05), 916 So.2d 1052.

After reviewing defendant’s pre-sen-tence investigation report (“PSP’), the trial court imposed the maximum sentence for sexual battery. The court stated that in December of 2004, after his father and brother had [3been arrested for abusing these children, defendant called Detective Wyatt of the Bossier City Police Department to confess. The court did not state the content of this alleged “confession.” Classifying the crime committed by defendant as heinous and involving small children while in a position of trust, the trial court emphasized the benefit defendant gained by entering into the plea agreement with the state and the fact that his original maximum sentencing exposure for three counts of aggravated incest was 60 years at hard labor. The trial court acknowledged reading the PSI. and that defendant was a first time felon with no significant misdemeanor record. Of particular significance are these summarizing statements in the PSI report:

In [defendant’s] statement to the Judge, he denies any wrongdoing and denies that he did anything to the victim, but he is the one who came to the police and confessed to “fondling” them without being questioned about it. All three victims listed on the Bill of Information deny that [defendant] did anything to them. (Emphasis added).

Except for the statement in the PSI report, that defendant and the victims denied any culpability on the part of defendant, there is no meaningful information from which this court could either piece together the content of defendant’s confession or find any corroborating evidence of that confession. This record falls woefully short of providing a factual basis for the sentence imposed. See State v. Williams, 557 So.2d 260 (La.App. 2d Cir.1989). Thus, we are unable to adequately review defendant’s contention that the sentence imposed is excessive. We emphasize that we are not saying that the sentence is or is not excessive. In light of the above, we are constrained to set aside defendant’s sentence and send this matter 14back to the trial court for resentencing in compliance with C. Cr. P. art. 894.1.

Error Patent

After a review of the record, we find no error patent, i.e., an error discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence. C.Cr.P art. 920. The dissent, however, does find such an error in the guilty plea colloquy. Thus, we will address that issue.

Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), requires the trial court to expressly enumerate three rights that must be waived by the accused prior to accepting a guilty plea. As spelled out by Boykin, these rights are to a jury trial, against self-incrimination, and to confront one’s accusers. The rule does not call for a recitation of a formula by rote or the spelling out of every detail by the trial court.

The dissent directs its attention to the explanation of the right to confront one’s accusers and, citing State v. Mendenhall, 40,986 (La.App.2d Cir.05/19/06), 930 So.2d 1196, concludes that the trial court’s statement was inadequate in that it did not say that “defendant could physically face those who testify against him.” In the case sub judice, the trial court followed the Judges Bench Book’s format as did the trial court in State v. Mendenhall, supra. We note that the Mendenhall case was a decision signed by two judges with one dissent.

The Judges Bench Book, prepared by the Louisiana Judicial College, provides a transcript format for a felony guilty plea as follows:

| fjlf you plead not guilty, you have a right to a jury trial. The state must produce the witnesses against you and prove your guilt beyond a reasonable doubt. At that trial, you have the right to cross-examine those witnesses. You cannot be compelled to testify against yourself or to present any evidence. (Emphasis added).

Black’s Law Dictionary provides that the word “confrontation” in criminal law “does not mean merely that the witnesses are to be made visible to the accused, but imports the constitutional privilege to cross-examine them.” The word “confrontation” is alone sufficient to convey both seeing and cross-examination of a witness.

In this case, the trial court told defendant of his right to jury trial and that he, through his attorney, would “have the right to cross-examine all the state’s witnesses.” As the word “confrontation” means both visibility of a witness and his or her questioning on cross-examination, it follows logically that “cross-examination” necessarily includes the defendant “seeing” the witnesses as his or her attorney conducts that witness’s cross-examination. This is simply common sense. We find no problem with the judge’s colloquy which tracks the recommended language set forth in the Judges Bench Book.

Conclusion

For the foregoing reasons, we vacate defendant’s sentence and remand the matter for resentencing in accordance with La. C. Cr. P. art. 894.1.

SENTENCE VACATED; REMANDED FOR RESENTENCING.

PEATROSS, J., dissents with written reasons to follow.

      . Defendant was arrested in December 2004. On February 22, 2005, defendant filed a motion through his attorney to reduce his $600,000 bond. This motion was never ruled on. A bill of information was filed against defendant on February 25, 2005. On March 2, 2005, defendant filed a pro se motion for ' release claiming that the grand jury refused to indict him. This motion to release was denied due to the filing of a bill of information. Thereafter, defendant pled guilty on August 1, 2005, and was sentenced on January 6, 2006.


author: MOORE, J.

text:
    STATE of Louisiana, Appellee, v. Eric GIPSON, Appellant.
    Nos. 41,337-KA, 41,338-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 16, 2006.

      Calvin Shirey, Shreveport, Louisiana Appellate Project, by Annette Fuller Roach, for Appellant.
    J. Schuyler Marvin, Graydon K. Kitchens, Jr., John M. Lawrence, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, GASKINS and MOORE, JJ.
   MOORE, J.

LThe defendant, Eric Gipson, pled guilty to aggravated second degree battery and possession of a firearm by a convicted felon. He was sentenced to 5 years at hard labor for aggravated second degree battery and 10 years without benefits for the possession conviction, to be served consecutively. We vacate and set aside the guilty plea and sentences because the trial court failed to advise the defendant of his right to a trial by jury and right of confrontation before accepting the guilty plea.

FACTS

On August 13, 2004, the defendant argued with Patricia Robertson, put a gun to his head and threatened to kill himself, then turned and fired at her. One bullet went through her right thigh. She was also “hit” in the ear and the chest. The defendant was charged with attempted first degree murder and possession of a firearm by a convicted felon, based on a prior guilty plea to simple burglary. He then pled pursuant to an agreement that reduced the attempted murder charge to aggravated second degree battery. The agreement specified that there would be a “ten-year cap to run concurrent.” [sic]. The defendant was sentenced to 5 years at hard labor “on the second degree battery” (there was no mention of “aggravated” at the sentencing hearing) and 10 years without benefits for the possession conviction, to be served consecutively.

DISCUSSION

Errors Patent

The trial court failed to adequately advise the defendant of his rights before accepting his guilty plea. The minutes show that formal arraignment 12was waived for both charges on September 20, 2004. The minutes also state that the trial court “explained to the defendant his rights as to method of trial” on two occasions, but do not elaborate. The minutes show that the trial court explained the defendant’s right to a trial by jury and his right to confront accusers; however, where there is a discrepancy between the minutes and the transcript, the transcript prevails. State v. Lynch, 441 So.2d 732 (La.1983). After the trial court’s questioning of the defendant, his counsel was asked, “[Y]ou’ve heard my questions to your client. Do you believe your client understands his rights and voluntarily waives them?” The defense counsel answered in the affirmative.

In order for a guilty plea to be valid, it is necessary for the accused to make a knowing and intelligent waiver of three constitutionally guaranteed fundamental rights. Those rights are the privilege against compulsory self-incrimination, the right to trial by jury, and the right to confront one’s accusers. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); State v. Nuccio, 454 So.2d 93 (La.1984); State v. Jones, 28,929 (La.App. 2 Cir. 4/2/97), 691 So.2d 858. A guilty plea will not be considered free and voluntary unless, at the very least, the court advises the defendant of the triad of rights as annunciated in Boykin, supra, and Louisiana jurisprudence. Indeed, an express and knowing waiver of those rights must appear on the record, and an unequivocal showing of a free and voluntary waiver cannot be presumed. Boykin, supra; State v. Morrison, 599 So.2d 455 (La.App. 2 Cir.1992). Furthermore, the trial court cannot rely on an assumption that defense counsel adequately informed the |3defendant of his rights. State v. Williams, 384 So.2d 779 (La.1980); Morrison, supra.

Right to Jury Trial

The trial court failed to advise the defendant that he had a right to a jury trial. Before accepting the defendant’s guilty plea in the instant case, the trial court advised the defendant that he had a right to continue his “not guilty plea and have a trial[J” The trial court later told the defendant that he had a right to remain silent during his “trial.” At no time during the plea hearing was the word “jury” mentioned.

This issue has been noted in several recent cases from the 26th JDC, including Maxie (No. 40,920-KA), Robinson (Nos. 40,983-KA and 40,984-KA), Mendenhall (No. 40,986-KA), Disotell (No. 40,989-KA), Woods (No. 41,126-KA), Rankin (No. 41,-128-KA), and Harvey (No. 40,315-KA). In Robinson, supra, this court reversed the pleas because the defendant was not informed of her right to a trial by jury. The same result was reached in Disotell, supra.

In State v. Feaster, 33,879 (La.App. 2 Cir. 11/1/00), 779 So.2d 761, this court vacated a guilty plea where the defendant was not informed of his right to a trial by jury. That opinion specified that the trial court advised the defendant several times of his right to a trial, but not a jury trial. Id. at 762. See also Morrison, supra, where this court reversed a guilty plea for the trial court’s failure to inform the defendant of his right to a jury trial. (Emphasis in original.) This court set aside a habitual offender adjudication based upon a prior guilty plea where the defendant was not properly Boykinized | ¿because he was advised of his right to a trial, but not a jury trial. State v. Kunzman, 31,976 (La.App. 2 Cir. 5/5/99), 741 So.2d 112. This court followed the ruling in Kunzman, supra, in vacating another habitual offender adjudication when the minute entry from a prior plea showed that the defendant had merely been informed of his “right to trial.” State v. Walker, 32,342 (La.App. 2 Cir. 9/24/99), 747 So.2d 133, writ denied, 00-0999 (La.11/13/00), 773 So.2d 725. See also State v. Jarrow, 03-0846 (La.App. 4 Cir. 9/10/03), 857 So.2d 12, where that court found no error in a trial court’s ruling to vacate a sentence and plea where the plea was constitutionally invalid because neither the plea form nor the minute entry indicated that the defendant was informed of his right to a trial by jury. (Emphasis original.)

Because there is no showing on the record that the defendant was advised of his right to a jury trial, the guilty plea will be vacated.

Right of Confrontation

The trial court told the defendant that “the DA must prove his case beyond a reasonable doubt[,]” and that the defendant’s attorney “would examine the DA’s witnesses.” However, the trial court did not advise the defendant that he had a right to confront his accusers.

The Confrontation Clause of the Sixth Amendment to the United States Constitution provides that in all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him. In State v. Welch, 99-1283 (La.4/11/00), 760 So.2d 317, the Louisiana Supreme Court explained that the Sixth Amendment provides “two types of | ¡^protections for a criminal defendant: the right physically to face those who testify against him and the right to conduct cross-examination.” While Welch, supra, involved a trial and not a plea, the explanation regarding the two types of protection has been cited by this court in discussing sufficiency of a trial court’s Boykinization of a defendant during the taking of a guilty plea. State v. Anderson, 34,491 (La.App. 2 Cir. 4/4/01), 784 So.2d 749, writs denied, 01-1431 (La.4/12/02), 812 So.2d 666 and 01-2429 (La.5/24/02), 816 So.2d 303.

This issue has also been addressed in recent cases including Mendenhall (No. 40,986-KA) and Rankin (No. 41,128-KA). This court ruled in Mendenhall, supra, that a similar explanation of the right as stated in the instant case was insufficient to adequately advise the defendant of his right to confrontation. Therefore, the plea must be vacated, and the matter remanded to the trial court for further proceedings.

Because the plea was taken without properly advising the defendant of his constitutional rights, this court does not need to address the assigned errors.

CONCLUSION

The trial court failed to fully advise the defendant of his right to a trial by jury and his right of confrontation before accepting the guilty plea. For these reasons, the guilty plea and sentence must be vacated and this matter is remanded to the trial court for further proceedings.

GUILTY PLEA AND SENTENCE VACATED AND SET ASIDE; REMANDED.

GASKINS, J., concurs.


author: SULLIVAN, Judge.

text:
    Joseph Dalton GUIDRY v. LOUISIANA FARM BUREAU MUTUAL INSURANCE COMPANY, et al.
    No. 06-658.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 2, 2006.
    Charles C. Garrison, Caffery, Oubre, Campbell & Garrison, L.L.P., New Iberia, Louisiana, for Defendants/Appellees, Louisiana Farm Bureau Mutual Insurance Company, David A. Trahan and Roxanne Trahan.
    Pamela B. Lolan, Attorney at Law, River Ridge, Louisiana, for Plaintiffs/Appellants, Joseph Dalton Guidry.

      Court composed of MICHAEL G. SULLIVAN, ELIZABETH A. PICKETT, and BILLY HOWARD EZELL, Judges.
   SULLIVAN, Judge.

11 Joseph Guidry appeals the trial court’s dismissal of his claims for bodily injury against David and Roxanne Trahan and their insurer, Louisiana Farm Bureau Mutual Insurance Company. For the following reasons, we reverse.

Facts and Procedural History

Mr. Guidry was injured during the course and scope of his employment with Circle A Farms, Inc., Timothy Albert, Stacey Albert Farms, LLC, and Stacey Albert (the Alberts). He was injured at the end of the work day on August 1, 2002, as he performed maintenance on the tractor he drove that day. As per his employer’s instructions, Mr. Guidry left his tractor running while he performed the required maintenance. During this time, David and Roxane Trahan’s eleven-year-old son, Quintín, who is also the Alberts’ nephew, climbed into the cab of Mr. Guidry’s tractor. While in the cab, Quintín turned the steering wheel, which caused Mr. Guidry to become pinned between one of the tractor wheels and the tire well. As a result, Mr. Guidry suffered serious injuries to his hip, back, and neck.

Mr. Guidry filed suit against the Alberts and Quintin’s parents seeking to recover damages under La.Civ.Code arts. 2315 and 2318, respectively. The Alberts were granted summary judgment on the basis of workers’ compensation being Mr. Guidry’s exclusive remedy against them. Mr. Gui-dry appealed the grant of summary judgment in favor of the Alberts but then dismissed his appeal.

| ¡(The Trahans also filed a motion for summary judgment in which they argued that Mr. Guidry’s exclusive remedy for his injuries is workers’ compensation. After a hearing, the trial court dismissed the motion, finding a material issue of fact existed as to whether Quintín was in the course and scope of employment when Mr. Guidry was injured. The Trahans reurged their motion for summary judgment after obtaining additional evidence on the issue of Quintin’s employment and activities at the time Mr. Guidry was injured. The trial court granted summary judgment in favor of the Trahans, dismissing them as defendants. The judgment in favor of the Tra-hans is the subject of this appeal.

Issues

Mr. Guidry assigns three errors:

1. Whether Quintín was an employee of the Alberts and entitled to tort immunity?
2. Does an illegally-hired minor’s performance of an illegal task in violation of the child Labor Law impose civil tort liability against that child and his parents when that minor injures a co-employee while performing a task prohibited by law?
3. Was Quintín, an illegally-hired minor, outside the course and scope of his alleged employment when he was on the high crop cane tractor and not actively engaged in duties of his alleged employment, an employment prohibited by law?

Summary Judgment

A motion for summary judgment will be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La.Code Civ.P. art. 966(B). Summary judgment is favored and shall be construed “to secure the just, speedy, and inexpensive determination of every action.” La.Code Civ.P. art. 966(A)(2).

| oThe mover bears the initial burden of proof to show that no genuine issue of material fact exists. However, if the mover will not bear the burden of proof at trial, he need not negate all essential elements of the adverse party’s claim, but he must point out that there is an absence of factual support for one or more elements essential to the claim. La.Code Civ.P. art. 966(C)(2). Once the mover has met his initial burden of proof, the burden shifts to the nonmoving party to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden at trial. Id.

Appellate courts review motions for summary judgments de novo, asking the same questions the trial court asks to determine whether summary judgment is appropriate. Champagne v. Ward, 03-3211 (La.1/19/05), 893 So.2d 773. This inquiry seeks to determine whether any genuine issue of material fact exists and whether the mover is entitled to judgment as a matter of law. La.Code Civ.P. art. 966(B). “A fact is material if it potentially insures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of a legal dispute.” Hines v. Garrett, 04-806, p. 1 (La.6/25/04), 876 So.2d 764, 765.

Discussion

In opposition to the motion for summary judgment, Mr. Guidry first argues that the evidence does not establish that Quintín was an employee of the Al-berts; therefore, workers’ compensation is not his exclusive remedy with regard to his claim against them under La.Civ.Code art. 2318. He identifies a number of facts which he contends support this argument: 1) Quintín had worked at the farm before but had not been paid; 2) other employees had to complete various documents in connection with their employment that Quin-tín did not complete; 3) Quintín was paid with a check dated the day of his accident which was not deposited for more than a month; |¿4) Quintín did not endorse the check, his mother did; and 5) Quintín was paid more than at least one other employee who was an adult.

An injured worker’s exclusive remedy for an injury which occurs in the course and scope of his employment “as against his employer, or any principal or any officer, director, stockholder, partner, or employee of such employer or principal” is workers’ compensation. La.R.S. 23:1032(A)(l)(a). If Quintín could not be held responsible in tort for his own actions in causing Mr. Guidry’s injuries because he was Mr. Guidry’s co-employee, neither could his parents. Therefore, whether Quintín was or was not employed by the Alberts when Mr. Guidry was injured is a material issue of fact.

The Trahans contend that Quintin’s status as an employee is undisputed. Mr. Guidry has identified five facts which he asserts could lead a jury to find that Quin-tín was not the Alberts’ employee. Additionally, the workers’ compensation Employer’s Report of Injury/Illness prepared by Tim Albert describes Mr. Guidry’s accident as occurring when he was:

Fueling the tractor and another employee (nephew 10-12 years old) was turning the wheel and his ® leg and hip area was caught in the tractor.

The determination of whether Quintín was the Alberts’ employee when Mr. Guidry was injured requires an evaluation of the credibility of the testimonial and documentary evidence on this issue. Credibility determinations are for the jury, not the trial court. Indep. Fire Ins. Co. v. Sunbeam Corp., 99-2181 (La.2/29/00), 755 So.2d 226. Accordingly, the trial court erred in granting summary judgment in favor of David and Roxanne Trahan and Farm Bureau Mutual Insurance Company.

| ¡^Disposition

Judgment in favor of David and Roxanne Trahan and Louisiana Farm Bureau Mutual Insurance Company is reversed; all costs of this appeal are assessed against them. •

REVERSED AND REMANDED.

      . Louisiana Civil Code article 2315 provides in pertinent part: "A. Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.”

      . Louisiana Civil Code article 2318 provides in pertinent part: "The father and the mother and, after the decease of either, the surviving parent, are responsible for the damage occasioned by their minor or unemancipated children, residing with them, or placed by them under the care of other persons, reserving to them recourse against those persons.”


author: WILLIAMS, Judge.

text:
    Mona Elizabeth Harper MIZELL, Plaintiff-1st Appellant v. Jerry Allen MIZELL, Defendant-2nd Appellant.
    No. 41,487-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 3, 2006.

      Albert E. Loomis, III, Monroe, for 1st Appellant.
    Donald L. Kneipp, Monroe, for 2nd Appellant.
    Before WILLIAMS, CARAWAY and LOLLEY, JJ.
   WILLIAMS, Judge.

|, This appeal involves two orders issued by the district court. The plaintiff, Mona Mizell, appeals a judgment denying her motion to increase the final periodic spousal support award. The defendant, Jerry Mizell, appeals the trial court’s subsequent order, on remand from this court, refusing to reduce his periodic support obligation. For the following reasons, we affirm.

FACTS

This appeal is the third time that these parties have raised the issue of periodic support before this court. The factual and procedural background of this case is also addressed in this court’s previous opinions. Mizell v. Mizell, 40,601(La.App.2d Cir.1/25/06), 920 So.2d 927 (Mizell II); 37,004 (La.App.2d Cir.3/7/03), 839 So.2d 1222 (Mizell I). The parties were married in 1972 and three children were bom of the marriage. In April 1994, they were granted a divorce. The court designated plaintiff as the domiciliary parent, awarding her child support and $2,100 per month for alimony. In August 1996, plaintiff began working at State Farm Insurance Company. In October 2000, plaintiff filed a motion for past due alimony and child support. Defendant filed a reconventional demand seeking to terminate alimony payments.

After a hearing, the trial court ordered defendant to make final periodic spousal support payments of $2,100 per month for a period of ten years. On appeal, this court reduced the spousal support payment to $1,000 per month for an unspecified period of time, finding that plaintiff was employed and no longer legally responsible for the expenses of her adult | ¡¡children. Mizell I, supra.

In February 2005, after partition of the community property, the defendant moved to terminate the periodic spousal support award, alleging that plaintiffs finances had improved and her expenses had decreased. Approximately one month later, the plaintiff filed a motion to increase the periodic support award, alleging that State Farm had given notice that her job would be terminated in several months. After a hearing in May 2005, the trial court denied defendant’s motion to terminate the final periodic support award and he appealed.

While the appeal was pending, a hearing on the plaintiffs motion to increase the spousal support award was held in December 2005. At that time, the 53-year-old plaintiff was unemployed after her termination by State Farm and she had exhausted her severance and vacation pay. Plaintiff testified that her adult daughter had recently moved out of her home. After hearing testimony, the trial court declined to increase the support award. Citing the LSA-C.C. art. 112 factors, the court found that plaintiff possessed income and “means” which she had “not even attempted to use (see factor 2). Further, this court notes that many of the financial obligations noted did not help further the cause of Mrs. Mizell (see factor 3).” Plaintiff appeals this judgment.

In January 2006, this court rendered a decision in defendant’s appeal of the denial of his motion to terminate support. This court found that the evidence showed the plaintiffs need and the defendant’s ability to pay. However, stating that the intent of the trial court’s ruling was unclear and . |sspecifically referencing the court’s use of the words “assisting daughter,” this court reversed-the judgment and remanded for the “purpose of adjusting Jerry’s permanent spousal support payments by excluding any support for the couple’s major daughter.” Mizell II, supra.

On remand, the trial court issued a “Ruling and Clarification for the Record” in response to this court’s instructions. The court stated in pertinent part:

This court clarifies and notes that relative to factor three under the Article 112 factors, this court did not initially consider any aspect of the major daughter as a living expense or as an expense of any kind. Instead, this court considered the pertinent fact's surrounding the major daughter as a “failure to utilize an asset” in meeting any obligations which may have been at issue. This went more toward the “weight” given to factor three rather than anything else. Therefore, Jerry Mizell’s permanent spousal support payments are adjusted only to the extent of having same being “restated” as being as previously ruled by this court in prior proceedings.

The defendant appeals this ruling.

DISCUSSION

The defendant contends the trial court erred in maintaining the periodic support award of $1,000 per month. Defendant argues that the trial court was required to reduce the amount of his monthly spousal support payment to comply with this court’s January 2006 decision.

Permanent alimony is awarded to a former spouse in need and is limited to an amount sufficient for maintenance as opposed to continuing an accustomed style of living. Brewton v. Brewton, 30,134 (La.App.2d Cir.1/21/98), 705 So.2d 799; Gibbs v. Gibbs, 33,169 (La.App.2d Cir.6/21/00), 764 So.2d 261; Council v. Council, 34,290 (La.App.2d Cir.12/15/00), 775 So.2d 628. Maintenance includes food, shelter, clothing, transportation, medical and drug expenses, utilities, household necessities and income tax liability generated by alimony payments. Settle v. Settle, 25,643 (La.App.2d Cir.3/30/94), 635 So.2d 456, writ denied, 94-1340 (La.9/16/94), 642 So.2d 194; Gibbs v. Gibbs, supra.

Pinal periodic spousal support is governed by LSA-C.C. art. 112, which 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.

Louisiana jurisprudence has established that the financial support of a major child may not be considered a living expense of one of the spouses. Mizell II, supra; Launey v. Launey, 98-849 (La.App. 3rd Cir.12/9/98), 722 So.2d 406; Green v. Green, 432 So.2d 959 (La.App. 4th Cir.1983).

An award of alimony is never final. Gibbs, supra; Gilbreath v. Gilbreath, 32,292 (La.App.2d Cir.9/22/99), 743 So.2d 300. An award of periodic support may be modified if the circumstances of either party materially change and shall be terminated if it has become unnecessary. LSA-C.C. art. 114. The party seeking the modification or termination of ^support carries the burden of proof that circumstances have changed since the original award. Gibbs, supra; Gilbreath, supra. A factual finding of a change in circumstances shifts the burden to the party opposing the modification or termination of alimony to prove need and the relevant factors as set forth in Article 112. Mizell I, supra. The. trial court is vested with great discretion in making alimony determinations and its judgment will not be disturbed absent a manifest abuse of that discretion. Mizell I, supra; Drury v. Drury, 38,951 (La.App.2d Cir.9/22/04), 883 So.2d 465.

Contrary to the defendant’s contention, we do not read this court’s prior opinion as a mandatory requirement that the trial court reduce the periodic support payments. In Mizell II, supra, this court stated that the trial court’s intent was unclear because of the form of the judgment and the use of the shorthand phrase “assisting daughter, etc.” Consequently, this court remanded for a clarification of the trial court’s intent in using those words and, if necessary, for an adjustment of the periodic support payments to the extent that the amount of such payments reflected expenses attributable to the major daughter.

At the hearing on remand, the district court acknowledged that a person reading its May 2005 ruling “could be confused” about the meaning of the court’s language. The district court explained that with regard to Article 112 factor number three, the financial obligations of the parties, the court had not considered plaintiffs financial assistance to her major daughter as an expense of the plaintiff in its decision declining to terminate the periodic support award. To the contrary, the district court asserted that |fithe language at issue referred to the major daughter’s failure to assist plaintiff with paying her financial obligations. Thus, the court concluded that there was no need to adjust defendant’s periodic support payments in the amount of $1,000 per month.

Considering the district court’s clarification of the intended meaning of the language used in its May 2005 ruling, we cannot say that the district court abused its discretion in determining upon remand that an adjustment of defendant’s periodic support payments was unnecessary. Therefore, the defendant’s assignment of error lacks merit.

Plaintiffs Motion to Increase Periodic Support

The plaintiff contends the trial court erred in denying her motion to increase final periodic spousal support. Plaintiff argues that because of her living expenses and her lack of employment, a proper application of the Article 112 factors demonstrates her need for increased periodic support.

In a determination of periodic support, much discretion is vested in the trial court and particularly in its evaluation of evidence that primarily involves weighing the credibility of witnesses. Thus, the trial court’s factual findings are accorded substantial weight on review. Mizell I, supra; Pearce v. Pearce, 348 So.2d 75 (La.1977).

In the present case, Dr. Kerry Anders, the plaintiffs family physician, stated that he first saw plaintiff as a patient in 1997, when she was diagnosed with sarcoidosis, a disease which affects the lungs and causes shortness of breath. Dr. Anders testified that plaintiff began complaining of chronic lower left abdominal pain in 2003, following a hysterectomy. Dr. |7Anders stated that he referred plaintiff to Dr. Mercer, who performed a laparoscopic procedure, and that plaintiff saw Dr. Liles for a cys-toscopy. Dr. Anders testified that he could not state that plaintiff was incapable of working. However, Dr. Anders opined that plaintiff would be restricted from performing a job that required sitting for hours at a time and that she would need to be able to periodically stand and walk around.

The plaintiff testified that her mortgage payment was $912.84 per month for a house with an appraised value of $165,000. She stated that her assets included a 1998 Ford automobile with mileage of over 100,-000 miles, a savings account with a balance of $600, a checking account with a balance of $300 and a State Farm 401(k) account with a balance of approximately $13,500. Plaintiff testified that she did not inform the court that her parents had donated their house to her in 1998 because they were still living in the home and she did not “feel” that she owned their house. In addition, plaintiff explained that her parents had donated their home to her as a type of precaution in case her father needed to enter a nursing home because of his poor health at the time. Plaintiff testified that after her State Farm job ended in June 2005, she had applied for one job, but was not hired. The plaintiff stated that she had not taken any other steps to secure a job because she was seeking treatment for her chronic pain. Plaintiff acknowledged that a number of the expenses listed on her affidavit could be reduced, such as the bills for bottled water, cable television, telephone and gasoline.

In its written reasons for judgment and at the hearing, the trial court indicated that it found many of the expenses stated in plaintiffs affidavit to |Rbe somewhat inflated. In her testimony, the plaintiff acknowledged that in preparing her current affidavit she had adopted “ballpark” figures from affidavits previously submitted to the court, rather than reviewing her financial records to obtain more accurate expense estimates. Such inaccuracy, along with plaintiffs failure to disclose to the court her parents’ donation of their home, could reasonably have influenced the trial court’s assessment of her credibility.

Additionally, although the trial court did not specify an earning capacity for plaintiff, the court found that plaintiff should be able to perform some type of work even when her age and health concerns are taken into account. This finding is supported by the medical testimony of Dr. Anders, who opined that plaintiff would be able to work with certain restrictions.

The trial court weighed the credibility of the witnesses and adequately considered the relevant factors set forth in Article 112. After reviewing the record, we conclude that the trial court did not abuse its discretion in declining to increase the final periodic support award of $1,000 per month. The assignment of error lacks merit.

CONCLUSION

For the foregoing reasons, the trial court’s judgments refusing to either reduce or increase the final periodic support award of $1,000 per month are affirmed. Appeal costs are assessed to the defendant, Jerry Mizell.

AFFIRMED.