author: GASKINS, J.

text:
    Dana Dycus STRANGE, Plaintiff-Appellee, v. Tracy G. STRANGE, Defendant-Appellant.
    No. 42,318-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 20, 2007.

      Loomis & Dement by Albert E. Loomis, III, Monroe, for Appellant.
    Barry W. Dowd, for Appellee.
    Before BROWN, GASKINS and CARAWAY, JJ.
   GASKINS, J.

| ¶Tracy Strange appeals from a trial court judgment reducing the amount of child support to be paid by Dana Dycus Strange (now Crumley) for the parties’ two children. For the following reasons, we affirm the trial court judgment.

FACTS

The parties were married in October 1992 and had two children, Tracy Alexandra, born June 7,1993, and Daniel Riley, born December 16, 1997. The parties separated in August 2000 and were divorced in March 2001. In June 2001, the trial court granted joint custody and named the father as the primary domiciliary parent. In March 2004, the trial court entered a judgment ordering the mother to pay $540.57 per month for child support retroactive to November 2003.

The mother had been employed at a car rental company earning approximately $23,000.00 per year. She remarried, had another child, and quit her job. On October 12, 2005, she filed a motion to reduce child support, claiming that she was unemployed and was staying at home to care for the new child. The father answered, claiming that the mother was voluntarily unemployed. These claims, and others not presently before this court, were submitted to a hearing officer, who ruled that the claim for a reduction should be denied.

The mother filed an objection to the hearing officer’s report, stating:

The mother filed the rule to decrease based on her new conditions and other reasons, which include the fact that the father has a new job, new circumstances, and other reasons to be shown at the trial of this matter. Assuming arguendo the mother is voluntarily underemployed, the child support should be modified in accordance with the law and the guidelines.

L.The father filed a motion to strike, claiming that the mother did not raise the issue of his new job with the hearing officer.

The trial court commenced the hearing on this matter on March 29, 2006; it denied the motion to strike. The father testified that at the time of the original child support award, he was working part-time at Conway Hospital for $6.20 per hour, was receiving residuals from the sale of insurance policies, and was a full-time student in radiologic technology. At the time of the hearing, he- had graduated and was working for Monroe Medical Clinic, earning approximately $16.00 per hour. He also still received some insurance residuals of about $600.00 per month.

The mother testified that she had been employed at a car rental agency earning approximately $23,000.00 per year. She had remarried and had another child in April 2005. She admitted that she voluntarily quit her job to stay home with the baby and to help her new husband in his landscaping business. She testified that she answered phone calls and did some bookkeeping for the business, but was not paid for her efforts. However, her work kept her husband from having to hire an employee. The court left the evidence open to obtain more information on the father’s income. The hearing resumed on September 21, 2006. The father furnished information regarding his salary, as well as insurance premiums and medical expenses for the children.

The mother reiterated her prior testimony concerning her earnings while employed. She stated that her baby was 18 months old and she was expecting another child. She outlined the amounts spent in her current ^household for housing, utilities, a car note, and food. The court also received evidence concerning the earnings of the mother’s new husband.

On October 23, 2006, the trial court issued its “Ruling, Order and Judgment” in this matter. The court found that the mother is voluntarily underemployed; the court would not say that she was unemployed, because she helped her current husband in his business, even though she was not paid for her work. The court stated that, “after considering the overall economic impact on the parties, the ways and means of the parties, and the best interest of all the minor children potentially [ajffected by the requests of all the parties to this cause (as well as the equities and reasoning behind the ‘underemployment’),” a reduction in the mother’s child support obligation was in order for a limited time. The court ordered that her obligation be reduced to $400.00 per month for a period of 18 months, subject to automatic review upon the filing of a motion for review by the father. All other relief requested by the parties was denied. The father appealed.

DEVIATION FROM CHILD SUPPORT GUIDELINES

On appeal, the father argues that the trial court erred in failing to adhere to the guidelines set forth in La. R.S. 9:315.1(B)(1) by not giving specific oral and written reasons for deviation from the child support |4guidelines, by not finding the amount of support required under a mechanical application of the guidelines, by not making a finding as to the particular facts and circumstances that warrant a deviation from the guidelines, and by not making all of these factors a part of the record of the proceedings. The father also contends that the trial court did not follow La. R.S. 9:315.1(C) in considering factors that would justify a deviation from the child support guidelines.

|sClosely tied to this argument, the father claims that the trial court erred in reducing child support because the mother had a child under the age of five who was not the child of the parties, the mother is unemployed, and the father now earns more than when the child support order was originally entered. The father contends that the law offers relief from a child support obligation for a child under the age of five .only if it is the child of the parties.

Legal Principles ■

The Louisiana Child Support Guidelines set forth the method for implementation of the parental obligation to pay child support. La. R.S. 9:315, et seq.) Gardner v. Gardner, 41,655 (La.App.2d Cir.12/27/06), 946 So.2d 321. Trie guidelines are intended to fairly apportion between the parents the mutual financial obligation they owe their children in an efficient, consistent and adequate manner. Child support is to be granted in proportion to the needs of the children and the ability of the parents to provide support. Gardner v. Gardner, supra.

The guidelines are to be used in any proceeding to establish or modify child support. La. R.S. 9:315.1(A); State ex rel. Metcalf v. Samuels, 34,402 (La.App.2d Cir.12/20/00), 775 So.2d 1162; Germany v. Germany (La.App.6 1st Cir.1992), 599 So.2d 350. The guidelines are mandatory and provide limits and structure to the trial court’s discretion in setting the amount of support. The trial court’s child support judgment will not be disturbed absent a clear abuse of discretion. Aydelott v. Aydelott, 42,161 (La.App.2d Cir.5/9/07), 957 So.2d 350.50

There is a rebuttable presumption that the amount of child support obtained by - use of the guidelines is proper - and in the child’s best interest. La. R.S. 9:315.1(A); Aydelott v. Aydelott, supra. The trial court may deviate if it finds that application of the guidelines would .not be in the child’s best interest or would be inequitable to the parties. Aydelott v. Aydelott, supra.

La. R.S. 9:315.1(B) mandates that the trial court give specific oral or written reasons for a deviation and include specific findings as to the amount of support that would have been required under a mechanical application of the guidelines and as to the particular facts and. circumstances that warranted the deviation. This information is required to be ■ made part of the record of the proceedings. Aydelott v. Aydelott, supra. When a trial court decides that deviation is 'appropriate, it should fully explain what the support should be if it were not deviating and how much is being allowed for each factor of deviation. Utilizing and fully explaining the deviation gives an appellate court a basis to review the .appropriateness of the deviation. State ex rel. Metcalf v. Samuels, supra. If the trial court fails to follow the mandatory procedure for deviation set forth in La. R.S. 9:315.1, it is legal error and precludes review of the deviation under the manifest |7error standard. Aydelott v. Aydelott, supra; Peck v. Peck, 37,184 (La.App.2d Cir.5/14/03), 847 So.2d 111.

Where the record contains adequate information, this court may apply the guidelines and render a support judgment rather than remand to the trial court for further proceedings. Aydelott v. Aydelott, supra; Gardner v. Gardner, supra.

A party seeking a reduction in child support must show a material change in circumstances of one of the parties between the time of the previous award and the time of the motion for modification of the award. La. R.S. 9:311(A); Wyatt v. Wyatt, 39,518 (La.App.2d Cir.4/6/05), 899 So.2d 788. Louisiana jurisprudence distinguishes between voluntary and involuntary changes in circumstances. An involuntary change in circumstances results from fortuitous events or other circumstances beyond a person’s control, such as loss of one’s position or illness. A voluntary change in circumstances generally does not justify a reduction in the support obligation. When a parent voluntarily terminates his or her employment, the child support obligation may be reduced if the obligor parent can show that (1) a change in circumstances has occurred; (2) the voluntary change is reasonable and justified; (3) the parent is in good faith and not attempting to avoid his or her alimentary obligation; and (4) the action will not deprive the child of continued reasonable financial support. Wyatt v. Wyatt, supra.

Voluntary underemployment is a question of good faith of the obligor spouse. If a parent is voluntarily unemployed or underemployed, the child support obligation shall be calculated on the basis of his or her income |Rearning potential, unless the party is physically or mentally incapacitated or is caring for a child of the parties under the age of five. La. R.S. 9:315.11(A).

The trial court has wide discretion in resolving credibility issues, and whether the obligor parent is in good faith in reducing his or her income is a factual determination which will not be disturbed on appeal absent an abuse of the trial court’s wide discretion. Wyatt v. Wyatt, supra.

Discussion

The question before the court was whether child support should be reduced under the facts presented in this case. After finding that the mother was voluntarily underemployed, the trial court allowed a reduction of her support award to $400.00 per month for her two oldest children for a period of 18 months.

In making its decision, the trial court did not strictly comply with the mandatory statutory language of La. R.S. 9:315.1 which requires that, in deviating from the guidelines, the trial court must calculate the support due under the guidelines, give reasons for the deviation, and state the particular facts and circumstances that warrant the deviation. This procedure must be followed whether initially setting a child support award or modifying an existing support order. The trial court failed to calculate the support due under the guidelines before determining that a deviation was in order. However, the' court did give reasons for its deviation. Based upon all the facts and circumstances in the record, we' do not find that the trial court [Sabused its discretion in granting a temporary reduction in child support in this case.

In reviewing the trial court judgment, we begin, as statutorily required, with a determination of the support award under the child support guidelines. At the hearing on the motion to reduce child support, the father testified that he currently has a gross monthly income of $3,414.57. The mother’s earning potential was shown to be $1,916.66 per month. According to the father, these figures, combined with child care costs, health insurance, and extraordinary medical expenses, show that the mother’s child support obligation would be $630.65, not considering expense sharing with her new husband. These figures have not been disputed by the. mother.

As stated above, the father did not request an increase in child support until after the hearing on the motion to reduce was concluded. Even if supported by the facts, we could not increase the award when that issue has not been submitted for decision to the trial court. However, we find that the trial court did not- err in temporarily reducing the support obligation.

The record shows that the mother carried her burden of proving that a reduction was warranted. She claimed that she quit her job to care for a new infant not of the parties. She also testified that she was expecting another child. La. R.S. 9:315.11 provides in pertinent part:

A. If a party is voluntarily unemployed or underemployed, child support shall be calculated based on a determination of his or her income earning potential, unless the party is physically or mentally incapacitated, or is caring for a child of the parties under the age of five years. In determining the party’s income earning potential, the court may consider the | inmost recently published Louisiana Department of Labor Wage Survey. [Emphasis supplied.]

Because the new children are not “of the parties,” La. R.S. 9:315.11 does not apply to allow a deviation from the mother’s support obligation. See Trahan v. Panagiotis, 94-1281 (La.App. 3d Cir.4/5/95), 654 So.2d 398, writ denied, 95-1720 (La.10/27/95), 661 So.2d 1350; Germany v. Germany, supra; Roberts v. Roberts, 95-1626 (La.App. 4th Cir.6/5/96), 677 So.2d 1042.

However, in determining whether to deviate from the guidelines, La. R.S. 9:315.1(0(2) allows the trial court to consider the legal obligation of a party to support dependents who are not the subject of the action before the court and who are in that party’s household. Also, La. R.S. 9:315.1(0(8) allows the court to look at any other consideration which would make application of the guidelines not in the best interest of the children or inequitable to the parties..

The mother wa;s voluntarily underemployed, as determined by the trial court. The record shows that the underemployment was reasonable and justified. The mother was in good faith in choosing to stay at home with her younger children; she was not merely attempting to avoid her support obligation to her older children. Her action will not deprive the older children of reasonable financial support.

We note that while employed, the mother earned $23,000.00 per year. If she were required to return to work while the younger children are still Ininfants, the child care expenses will likely eliminate any financial gain she might receive by working.

We also note that, under the trial court’s ruling, the mother’s previous child support obligation of $540.57 for her older children has not been eliminated, but has simply been reduced by approximately $140.00 per month. Further, the reduction is temporary, and is subject to review again in 18 months. Due to thé mother’s additional obligation to support and care for her new children, a slight, temporary reduction in her child support obligation was not an abuse of the trial court’s discretion.

CONCLUSION

For the reasons stated above, we affirm the trial court judgment reducing the child support obligation of Dana Dycus Strange Crumley. Costs in this court are assessed to Tracy G. Strange.

AFFIRMED.

      . On September 26, 2006, the father filed a motion to increase child support, claiming that the evidence showed that an increase was warranted and that the trial court should not deviate from the child support guidelines. We note that this motion was filed five days after the hearing on the motion to reduce child support and before the trial court judgment at issue here. The trial court ruling did not address the motion for an increase. Even though the father urges that we set an increased amount of child support in accordance with the child support guidelines, this issue has not been addressed by the trial court and is not properly before this court for review. The only issue before us is whether a reduction should have been granted, and whether the court erred in deviating from the child support guidelines in awarding a reduction.

      . La. R.S. 9:315.1 provides in pertinent part:
      A. The guidelines set forth in this Part are to be used in any proceeding to establish or modify child support filed on or after October 1, 1989. There shall be a rebuttable presumption that the amount of child support obtained by use of the guidelines set forth in this Part is the proper amount of child support.
      B. (1) The court may deviate from the guidelines set forth in this Part if their application would not be in the best interest of the child or would be inequitable to the parties. The court shall give specific oral or written reasons for the deviation, including a finding as to the amount of support that would have been required under a mechanical application of the guidelines and the particular facts and circumstances that warranted a deviation from the guidelines. The reasons shall be made part of the record of the proceedings.

      C. In determining whether to deviate from the guidelines, the court’s considerations may include:
      (1) That the combined adjusted gross income of the parties is not within the amounts shown on the schedule in R.S. 9:315.19.
      (a) If the combined adjusted gross income of the parties is less than the lowest sum shown on the schedule, the court shall determine an amount of child support based on the facts of the case, except that the amount awarded shall not be less than the minimum child support provided in R.S. 9:315.14.
      (b) If the combined adjusted gross income of the parties exceeds the highest sum shown on the schedule, the court shall determine an amount of child support as provided in R.S. 9:315.13(B).
      (2) The legal obligation of a party to support dependents who are not the subject of the action before the court and who are in that party’s household.
      (3) That in a case involving one or more families, consisting of children none of whom live in the household of the noncustodial or nondomiciliary parent but who have existing child support orders (multiple families), the court may use its discretion in setting the amount of the basic child support obligation, provided it is not below the minimum fixed by R.S. 9:315.14, if the existing child support orders reduce the noncustodial or nondomiciliary parent’s income below the lowest income level on the schedule contained in R.S. 9:315.19.
      (4) The extraordinary medical expenses of a party, or extraordinary medical expenses for which a party may be responsible, not otherwise taken into consideration under the guidelines.
      (5) An extraordinary community debt of the parties.
      (6) The need for immediate and temporary support for a child when a full hearing on the issue of support is pending but cannot be timely held. In such cases, the court at the full hearing shall use the provisions of this Part and may redetermine support without the necessity of a change of circumstances being shown.
      (7) The permanent or temporary total disability of a spouse to the extent such disability diminishes his present and future earning capacity, his need to save adequately for uninsurable future medical costs, and other additional costs associated with such disability, such as transportation and mobility costs, medical expenses, and higher insurance premiums.
      (8) Any other consideration which would make application of the guidelines not in the best interest of the child or children or inequitable to the parties.

      . We note that the substahce of La. R.S. 9:3.15.11 was formerly contained in La-. R.S. 9:315.9 and was reenacted and redesignated by Acts 2001, No. 1082, § 1.


source: Caselaw Access Project

author: PEATROSS, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee, v. David Wayne SHARPLEY, Appellant.
    No. 42,309-KA.
    Court of Appeal of Louisiana, Second Circuit.
    June 20, 2007.

      Louisiana Appellate Project by W. Jarred Franklin, for Appellant.

      J. Schuyler Marvin, District Attorney, John M. Lawrence, Charles Smith, Assistant District Attorneys, for Appellee.
    Before STEWART, PEATROSS & DREW, JJ.
   PEATROSS, J.

I , Defendant, David Wayne Sharpley, was originally charged with one count of first degree murder, a violation of La. R.S. 14:30. In exchange for a plea agreement, the State dismissed the murder indictment and filed a new charge of aggravated burglary under La. R.S. 14:60, and Defendant pled guilty to that charge. The trial judge sentenced Defendant to serve 30 years’ imprisonment at hard labor. Defendant now appeals, urging only that his sentence is excessive. We affirm.

FACTS

At Defendant’s plea hearing, he agreed that the following facts were accurate:

[O]n or about September 29th, 2002, at the location [of] 1502 Furry Place, Bossier City, Bossier Parish, Louisiana, [Defendant] did enter an inhabited dwelling owned by Maria Gavrock and while without authority he entered in the residence. While in there he did commit a battery on Ms. Gavrock and did commit a theft therein.

Ms. Gavrock was an elderly woman living with a bedridden housemate. Without testimony, the only details of the incident are from the presentence investigation (PSI), including a summary of a Bossier City Police Department (“BCPD”) report. It states that Ms. Gavrock told police that a man who was unknown to her rang her doorbell and asked to use the telephone because his truck had broken down. When Ms. Gavrock let the man inside, the assault occurred and Ms. Gavrock -remembered nothing else. She arrived at the hospital in critical condition, having multiple broken bones in her face and requiring a ventilator to breathe. She was released from the hospital after several, months, but died shortly thereafter.

^Although not contained in the records, Defendant appears to have been initially charged with aggravated robbery under La. R.S. 14:64.4. After Ms. Gavrock’s death, the State indicted him for first degree murder and notified him of its intent to seek the death penalty on the murder charge. These charges were dismissed subject to Defendant’s plea agreement.

With his sentencing memorandum, Defendant submitted an undated forensic pathology “summary opinion” prepared by a Texas physician for Defendant’s attorney. This physician’s opinion is that Ms. Gav-rock died from a heart attack related to a long history of arteriosclerosis, hypertension and diabetes and that the beating Ms. Gavrock suffered at the hands of Defendant did not contribute to Ms. Gavrock’s death. The report indicates that, during her long hospitalization, Ms. Gavrock’s blood pressure had been under better control than it had been during pre-crime visits. Further, the appellate record does not have a copy of the autopsy report conducted by parish authorities showing the cause of Ms. Gavrock’s death.

In addition to allowing Defendant to plead to aggravated burglary, the State also agreed that any other pending charges would be dismissed. It agreed to a presentence investigation and not to file a multiple offender bill against Defendant. Pursuant to the plea agreement, his burglary sentence would run concurrently with another sentence Defendant was then serving in Webster Parish.

The trial judge sentenced Defendant to the maximum sentence of 30 years to run concurrently with any sentence he was already serving. ^Defendant filed a timely motion to reconsider sentence. He argued that he did not deserve the maximum sentence because (1) the pathology report submitted by the defense expert stated that Defendant was not responsible for Ms. Gavrock’s death and (2) Defendant had shown remorse for his actions and accepted responsibility for his role in the crime. The trial judge denied the motion, and Defendant now appeals.

DISCUSSION

Defendant’s sole assignment of error is that the sentence imposed is excessive for this offender and offense. The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial court is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Dunn, 30,767 (La.App.2d Cir.6/24/98), 715 So.2d 641. 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. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. C. Cr. P. art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982); State v. Hampton, 38,017 (La.App.2d Cir.1/28/04), 865 So.2d 284, writs denied, 04-0834 (La.3/11/05), 896 So.2d 57 and 04-2380 (La.6/3/05), 903 So.2d 452. The important elements which should be considered are Defendant’s personal history (age, family Lties, marital status, health, employment record), prior criminal record, seriousness of offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Haley, 38,258 (La.App.2d Cir.4/22/04), 873 So.2d 747, writ denied, 04-2606 (La.6/24/05), 904 So.2d 728. There is no requirement that specific matters be given any particular weight at sentencing. State v. Jones, 33,111 (La.App.2d Cir.3/1/00), 754 So.2d 392, writ denied, 00-1467 (La.2/2/01), 783 So.2d 385.

Second, a sentence violates La. Const, art. 1, § 20, if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Smith, 01-2574 (La.1/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 01-0467 (La.1/15/02), 805 So.2d 166; State v. Lobato, 603 So.2d 739 (La.1992); State v. Hogan, 480 So.2d 288 (La.1985); State v. Bradford, 29,519 (La.App.2d Cir.4/2/97), 691 So.2d 864.

The trial judge reviewed Defendant’s PSI and considered the relevant factors in determining his sentence. In addition to the facts described above, the PSI included a summary of an interview with Ms. Gav-rock’s daughter, Billie Johnson. Ms. Johnson said that her mother was beaten so badly that she was unrecognizable. Ms. Johnson related that the autopsy performed on her mother initially listed “heart attack” as the cause of her death; but, when the coroner was told of the beating Ms. Gavrock suffered, |fithe coroner changed the official cause of death to “homicide.” Ms. Johnson described the loss of her mother as a terrible blow to the family, especially considering the violence she had suffered,. and her disbelief that Defendant had only been convicted of aggravated burglary. She expressed her hope that the Defendant receive the maximum sentence.

The trial judge further considered Defendant’s personal history. As determined by the PSI, Defendant is a white male born on December 5, 1981. He completed the 10th grade of high school and had not earned a G.E.D. His last known employment was with an upholstery shop in 2000. He claimed to be married and the father of two children.

The trial judge particularly noted Defendant’s substantial criminal history. Defendant had a significant juvenile record and a wide variety of adult offenses since 1999. Notably among the offenses, Defendant pled guilty to simple battery from a charge of second degree battery. He was also charged again with second degree battery, along with unauthorized entry of an inhabited dwelling. He pled guilty as charged to the latter charge and the former charge was dismissed. He was sentenced to a one-year suspended sentence with 18 months’ supervised probation. The probation was allowed to expire despite Defendant’s failure to comply with its terms. Defendant was also charged with possession of a firearm by a convicted felon for which he was serving a seven and a half year sentence at the time of sentencing of the instant offense. After the trial judge spent much of the sentencing proceeding reviewing Defendant’s extensive criminal history as outlined above, he noted that the instant offense was Defendant’s second | ^felony conviction and one of several violent offenses. The trial judge observed: “Apparently, sir, you just don’t get along with other people.”

Concerning the instant crime, the trial judge observed that Defendant had beaten Ms. Gavrock so badly that she was transported to the hospital in critical condition with many broken bones in her face. The trial judge stated that he took into account the pathology report stating that the beating did not cause Ms. Gavrock’s death that occurred not long after this offense. He noted, however, that the cause of death made no difference in his sentencing given the brutality of the attack on an elderly victim and Defendant’s criminal history. The trial judge also noted that Defendant had been “cocky and uncooperative” during the investigation into this matter.

Defendant made a brief statement to the court apologizing for his “criminal activity throughout my years” and stating that he “was just allowed to continue to make mistakes.” Defendant’s attorney also stated that she had noticed a “complete change in his attitude” during the course of this case.

The court explained that incarceration was designed both to teach an offender a lesson and to protect law-abiding citizens from violent offenders. In determining his sentence, the trial judge found that the severity of the attack and Defendant’s considerable criminal behavior were the most relevant considerations. Due to Defendant’s significant history of violence and because the instant offense was so violent, the trial judge concluded that Defendant deserved the maximum sentence for this offense,- 30 years’ 17imprisonment at hard labor. 'We do not find that the trial judge erred in this sentence.

In addition, as a general rule, maximum or near maximum sentences are reserved for the worst offenders and the worst offenses. State v. Brisco, 33,179 (La.App.2d Cir.4/5/00), 756 So.2d 644, writ denied, 00-1478 (La.5/25/01), 792 So.2d 749; State v. Grissom, 29,718 (La.App.2d Cir.8/20/97), 700 So.2d 541; State v. Walker, 573 So.2d 631 (La.App. 2d Cir.1991). In cases where a defendant has pled guilty to an offense which does not adequately describe his conduct, however, the general rule does not apply and the trial court has great discretion in imposing the maximum sentence possible for the pled offense. State v. Jackson, 37,722 (La.App.2d Cir.10/9/03), 855 So.2d 989. This is particularly true in cases where a significant reduction in potential exposure to confinement has been obtained through a plea bargain and the offense involves violence upon a victim. Id.; State v. Black, 28,100 (La.App.2d Cir.2/28/96), 669 So.2d 667, writ denied, 96-0836 (La.9/20/96), 679 So.2d 430.

Even if this court does not consider the reduction in sentencing exposure from the dismissal of his first degree murder charge, Defendant still received a benefit of the plea because his crime can also be adequately described as a second-degree robbery. Second-degree robbery is defined as, “taking of anything of value belonging to another from the person of another or that is in the immediate control of another when the offender intentionally inflicts serious bodily injury.” La. R.S. 14:64.4. Serious bodily injury is defined as “bodily injury which involves unconsciousness, ^extreme physical pain or protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty, or a substantial risk of death.” La. R.S. 14:64.4. Defendant’s conduct in the course of this crime — breaking the elderly victim’s facial bones and leaving her in critical condition — is indicative of his intention to inflict serious bodily injury on Ms. Gav-rock. This is conduct more akin to second-degree robbery, which carries a maximum 40-year hard labor sentence. La. R.S. 14:64.4. Defendant’s plea agreement reduced his potential exposure from 40 years to 30 years while not adequately describing his crime. In addition, Defendant’s plea agreement precluded the State from seeking enhancement of Defendant’s sentence under the habitual offender law and also required the trial judge to impose this sentence concurrently with any other sentence.

The trial judge correctly concluded that the circumstances of this case, in particular Defendant’s criminal history and conduct during this offense, warranted the maximum penalty for aggravated burglary. This assignment of error is without merit.

CONCLUSION

For the reasons set forth above, the sentence of 30 years at hard labor of Defendant, David Wayne Sharpley, is affirmed.

AFFIRMED.

      . The term "aggravated robbery” under La. R.S. 14:64.4 was changed to second degree robbery effective 2004.


author: STEWART, J.

text:
    The ESTATE OF Mary Jacqueline LEVITZ, Plaintiff-Appellant, v. Joe E. BROADWAY and Don R. Broadway, Defendants-Appellees.
    No. 42,308-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 20, 2007.

      Mulhearn and Smith by Leroy Smith, Jr., Tallulah, for Appellant.
    Hamilton & Hamilton by Orlando N. Hamilton, Jr., Oak Grove, for Appellees.
    Before STEWART, GASKINS and LOLLEY, JJ.
   STEWART, J.

hAt issue in this appeal is whether the evidence supports the trial court’s finding of a remission of a debt by the obligee, Mary Jacqueline Levitz, prior to her death. Having reviewed the record, we find no manifest error in the trial court’s judgment, and affirm.

FACTS

Background

On April 17, 1995, Joe E. Broadway and Don R. Broadway executed a promissory note in favor of their sister, Mary Jacqueline Levitz (“Jackie”), for the amount of $70,000 payable in one-hundred twenty equal monthly installments of $849.80, inclusive of principal and interest. The first payment was due May 1,1997, and the last was due on April 1, 2007. The note also provided for semi-annual payments of accrued . interest during.the first two years until the regular monthly payments were to^ begin. The Broadway brothers used the money to. purchase land in Arkansas and to build a cabin. The note provided that title to the property would be transferred to Jackie in the event the loan was not paid. No payments have.ever been made on the note.

On November 18, 1995, Jackie disappeared from her home in Vicksburg, Mississippi, under circumstances indicative of foul play. She was eventually pronounced dead, and her estate was opened in Florida with the note listed as one of the assets. An ancillary succession was opened in West Carroll Parish where the Levitz estate represented by Tiki Levon Shivers, the co-ancillary administrator of the estate and sister of Jackie, Joe, |2and Don, filed suit against Joe and Don to collect the amount due on the note or obtain title to the Arkansas property.

In answer, Joe and Don pled as an affirmative defense the remission of the note by their sister, Jackie. They filed a motion for summary judgment supported by ten affidavits, their own and those of various family members, stating that Jackie had orally expressed the intention to forgive the debt and not require payment by her brothers. Jackie indicated to them that the property would be for the whole family to enjoy.

The estate opposed the motion for summary judgment with affidavits from Tiki and Mitchell Broadway, another Broadway sibling. Tiki’s affidavit referred to a conversation she had with Jackie shortly before her disappearance. She recalled Jackie saying that she told Joe and Don not to worry now about paying the loan so that they could use the money to improve the cabin. Mitchell’s affidavit related a conversation he had with Jackie in-March or early April of 1995, during which she asked him to become a partner in buying the Arkansas land. Not wanting to be involved in financial dealings with his brother Don, he declined. According to Mitchell’s affidavit, Jackie told him that hunting leases were to be sold to generate income to repay the loan. In another conversation in October 1995, she again told Mitchell that he should have gotten in on the deal, because the hunting club fees would bring in a lot of money.

The trial court granted summary judgment in favor of the Broadway brothers after determining that the affidavits offered by both sides were not contradictory and did not create an issue of material fact for trial. The trial ^court’s summary judgment was reversed in Estate of Levitz v. Broadway, 37,246 (La.App.2d Cir.5/14/03), 847 So.2d 170, and the matter was remanded for further proceedings.

Trial Proceedings and Testimony

Upon remand, a bench trial was held. The trial court heard testimony from Joe, Don, and Tiki, as well as from Geraldine “Gerri” Brown, another Broadway sibling. The, parties stipulated that the wives of Joe and Don, if called to the stand, would testify in the same manner as their husbands. The estate introduced the deposition of Mitchell, and Joe and Don introduced the depositions of three elderly aunts.

Joe testified that he drew up the note for the loan and brought it to Jackie’s bank for safekeeping. He claimed she did not want them to sign a note. Joe related a visit by his sisters Jackie and Geraldine to his house s during which he mentioned selling hunting, leases on the property. Jackie indicated that she did not want to go forward:with that plan. Instead, she told him -that she was proud of what he and Don were doing with the property and that she had decided to forgive the debt.

Don testified that he signed the note presented to him by Joe and later learned from Joe that Jackie had forgiven the debt. When he and other family members were invited out to dinner in Vicksburg by Jackie, he took the opportunity to thank her for forgiving the debt. He testified that she ■ told him they did not owe a penny.

Gerri recalled visiting family in Oak Grove with Jackie. She testified that while visiting Joe, he discussed selling the hunting leases to . get money |4to repay Jackie. Jackie told him not to sell leases on the property and explained that she was forgiving the debt and that they did not have to worry about paying the money back. She told Joe to use the money to make the property a place the whole family could enjoy. Gerri then recalled visiting their three elderly aunts who had gotten together to see Jackie. During their conversation, Jackie told the aunts that she had forgiven the note. Gerri also testified that she was present' at the family dinner gathering at Jackie’s house in Vicksburg and overheard Jackie tell her brothers that they would not have to repay the money, that she wanted them to improve the property, and that she was looking forward to going there. Gerri stated that Jackie wanted the family to be able to enjoy the property.

Joe and Don introduced the depositions of their three elderly aunts that were taken for trial purposes. Effie Broadway Parker, Minnie Merle Thompson, and Tura Jean Broadway Lee Thompson all testified about the conversation during Jackie’s and Gerri’s visit with them. 'They all testified that Jackie said she was not making her brothers pay back The money she had loaned them. They recalled that- Jackie wanted the family to be able to visit and enjoy the property as a place where they could all be together.

■ Tiki testified that she spoke to' Jackie the night before she disappeared. During their conversation, Jackie mentioned the work being done on the Arkansas cabin by her- brothers and how proud she was of them. Tiki recalled Jackie saying'that she told her brothers to use the money to fix up the .cabin and that they would worry about paying on the note later. |sAlthough Joe and Don had asked her to try to recall the conversation in Vicksburg during which Jackie forgave the loan, Tiki testified that she did not recall that conversation. . ,

The estate introduced the trial deposition of Mitchell. He testified that Jackie had contacted him in the spring of. 1995, about being a partner in a hunting camp venture in Arkansas. Because he did not want to have financial dealings with Don, he turned her down and warned her that Don would not pay her back. Jackie told him that she was neither naive nor stupid and that she would either be paid or would take the property. Mitchell did not recall whether this conversation occurred before or after she had loaned the money to Joe and Don. He recalled speaking with her again in October 1995, and mentioning to her that he did not believe Don would repay the money. The record does not establish whether this last conversation occurred before or after those other conversations during which Jackie allegedly forgave the debt.

Trial Court Judgment

The trial court ruled in favor of the Broadway brothers, Joe and Don, finding a remission .of the debt by Jackie. The trial court referred to the numerous witnesses, including disinterested, ones, who testified that she forgave the debt. In contrast, the trial court found that Tiki’s testimony was not supported by other evidence, particularly as Mitchell could not recall whether his conversation with Jackie in early March or April of 1995, occurred before or after she had loaned Joe and Don the money. Judgment | fiwas rendered dismissing the action of the Levitz estate on the note. This appeal followed.

DISCUSSION

On appeal, the Levitz estate argues that the defendants have -not asserted a' defense of remission under La. C.C. Art. 1988. Instead, the estate claims that Joe and Don are asserting discharge of a promissory note by renunciation as governed by La. R.S. 10:3-604 and that they have not met the requirements of this article. We find no merit in this argument. The defendants specifically pled remission in their answer and asserted it as an affirmative defense against the estate’s claims. Therefore, this matter is governed by La. C.C. art.1988 and related provisions.

As provided in La. C.C. art.1988, the obligee’s express or tacit remission of a debt extinguishes the obligation. There is a presumption of remission when the obli-gor voluntarily surrenders to the obligee the instrument evidencing the obligation. La. C.C. art. 1889; Kirkpatrick v. Bank-America Housing Services, a Div. of Bank of America, FSB, 34,692 (La.App.2d Cir.11/2/01), 799 So.2d 831. Because the note was not surrendered, remission is not presumed in this matter. However, La. C.C. art. 1890 states that remission is effective when the . obligor receives the communication from the obligee; acceptance is presumed unless the obligor rejects the remission within a reasonable time.

The burden of proving remission is on the party claiming the benefit. Arledge v. Bell, 463 So.2d 856, 858 (La.App. 2d Cir.1985), and cases cited therein. No particular form is required, and remission may occur by either |7oral or written declaration. Id. The remission articles require only a determination “that the creditor intended to remit his claim or that he has estopped himself to claim the contrary.” Id. See also Kirkpatrick, supra.

In this matter, the defendants had the burden of proving remission. They sought to satisfy this burden by testimony that their sister Jackie orally forgave or remitted the debt before she disappeared and was declared dead. The estate asserts that parol evidence cannot be offered against the interest of the deceased. This is incorrect. Our law clearly provides that statements against the deceased’s interest may be admitted into evidence as an exception to the hearsay rule. Kirkpatrick, supra; Arledge, supra. While the declarations against the interest of the deceased are admissible and of some probative value, they are the weakest kind of testimony and must be carefully scrutinized and weighed as such statements may be easily fabricated. Arledge, supra. Therefore, the statements against the interests of the deceased pertaining to her alleged remission of the debt owed to her by Joe and Don were admissible.

The trial court’s finding that Jackie remitted the debt is a factual finding subject to the manifest error standard of review. As an appellate court, we may reverse the trial court’s findings of fact only upon determining that no reasonable factual basis supports the finding and that the record establishes that the finding is clearly wrong. Stobart v. State, through DOTD, 617 So.2d 880 (La.1993); Mart v. Hill, 505 So.2d 1120 (La.1987). The issue to be determined is not whether the trial court was right or wrong, but whether its finding was a reasonable one. Stobart, supra. Where two ^permissible views of the evidence exist, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. Canter v. Koehring Co., 283 So.2d 716 (La.1973).

Having reviewed the record in its entirety, we cannot say that the trial court’s factual determination that Jackie remitted the debt was either manifestly erroneous or clearly wrong. The defendants presented their own testimony and that of several relatives all of whom testified that Jackie said she was forgiving the debt and that she wanted Joe and Don to improve the Arkansas property for the family’s use and enjoyment. The testimony related three occasions on which Jackie orally expressed this desire to Joe and Don personally and to other family members. While the testimony of Joe and Don may be considered self-serving, their testimony was corroborated and supported by Gerri and the trial depositions of their aunts, and none of these witnesses .were shown to be biased or lacking in • credibility. We find this testimony establishes an oral remission of the debt by Jackie in her conversations with Joe at his house, with the aunts and Gerri in Oak Grove, and with Don at her home in Vicksburg.

On the other side, Tiki’s testimony about her conversation with Jackie the night before she disappeared related that Jackie told her brothers not to worry about paying back the money while , they worked on the cabin and that they would worry about repayment later. Upon consideration of the testimony indicating that Jackie had already remitted the debt, the trial court could have disbelieved Tiki’s account-of the conversation or concluded that she misunderstood what her sister said. Tiki did mention that Jackie was |aupset when they last spoke. Also, the trial court could have reasonably discounted Mitchell’s testimony, because it was not established whether his last conversation with Jackie occurred before or after she told Joe, Don, and other family members that she was forgiving the debt.

We are also persuaded by the apparent lack of acrimony between the parties in this proceeding. Neither side has accused the other of lying or putting words in the mouth of the deceased. Rather, witnesses for each side presented his or her own accounts of what they heard Jackie say regarding the loan and her intentions toward it. Based on the evidence presented, the trial court made a reasonable finding of fact that- cannot be reversed on appeal.

CONCLUSION

For the reasons stated, we affirm the trial court’s judgment and assess costs of appeal to the appellant.

AFFIRMED.


text:
    Wayne FARMER, Plaintiff-Appellee, v. R.A.S. MANAGEMENT COMPANY, INC., Defendant-Appellant.
    No. 42,306-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    June 20, 2007.

      Pettiette, Armand, Dunkelman, Wood-ley, Byrd & Cromwell by Robert A. Dunk-elman, Shreveport, for Appellant.
    Street & Street by D. Randolph Street, for Appellee.
    Before STEWART, PEATROSS and DREW, JJ.
   STEWART, J.

hR.A.S. Management Company, Inc., and Louisiana Home Builders Self Insured Fund (collectively “R.A.S.”), appeals the WCJ’s award of benefits, penalties and attorney fees in favor of Wayne Farmer in pursuit of his workers’ compensation claim. In answer to the appeal, Mr. Farmer asks this court for an additional $1,500.00 in attorney fees for the prosecution of this appeal. For the reasons more fully explained herein, we affirm the judgment of the WCJ and award Mr. Farmer $750.00 in attorney fees for prosecution of this appeal.

FACTS

Wayne Farmer worked as a maintenance supervisor for R.A.S. On August 26, 2004, Farmer and a co-employee, John Threadgill, were exiting a break room and proceeding back to work. The break room had a couple of steps that had to be descended in order to get back down to ground level. While walking down the steps, Farmer fell down landing on all fours. Threadgill noted that the incident “seemed like a minor accident to him.” After the accident, Threadgill worked with Farmer on a daily basis and remembered him complaining about shoulder pain, but did not recall any mention of any knee pain. Nonetheless, Farmer, who had missed an extensive amount of time from work because of a work related shoulder injury, asserted that he did not want to miss any time from the job because of complications with his knee. As a result he wore a knee brace.

Immediately following the accident, Farmer reported the incident to his immediate supervisor, Jodie Meeks, who for reasons that were not explained, failed to complete an incident report at that time. Carol | ¡.Lawrence, then an R.A.S. employee, became romantically involved with Farmer around the time of the accident and testified that he complained of problems with his knee persistently following the accident. She also testified that Farmer informed Jodie Meeks of the incident immediately following the fall. Her testimony was corroborated by Kaycee Wright, who also witnessed Farmer come into the office and inform Ms. Meeks about the incident, and she also noted Ms. Meeks’ failure to fill out an incident report. Ms. Wright later left employment with R.A.S.

Kelips Bradley Aucoin is vice president of R.A.S., and he testified that he gets all accident reports from Jodie Meeks, but that he never received one concerning a knee injury suffered by Farmer.

Jodie Meeks testified that Farmer never reported any knee injury to her, and that her first knowledge of the incident came with the filing of the instant lawsuit. She asserts that Farmer only filed this claim because he and Carol Lawrence were dating and they were disgruntled over- -the fact that she, rather than Ms. Lawrence, was given the promotion to manager by R.A.S.

James Shelton, a maintenance supervisor for R.A.S., testified that although he never saw Farmer wearing a knee brace or having a problem with his knee, he was aware of the incident because he had been informed by Mr. Threadgill. James Sand-erson, a maintenance technician for R.A.S., also testified that Farmer expressed to him the problems he was having with his knee. > •

|sFarmer began seeing Dr. Felix Savoie on September 2, 2004, for treatment of his knee injury. He was diagnosed with mye-lalgia of the patella, bursitis/tendinitis of the knee, and a meniscus tear. Dr. Savoie, who was treating Farmer because of his shoulder injury, ordered a short period of rehabilitation. Dr. Savoie, who admitted he was not an expert in knee injuries and did not perform a thorough examination of Farmer’s knee, opined that he did not think Farmer’s knee injury was particularly serious. However, he agreed to defer to the opinion of Dr. F. Sutton, the orthopedic surgeon who treated Farmer for his knee in June of 2005. Dr. Sutton had an impression of probable internal deraignment and minuscule tear of the meniscus in the right knee. An MRI was ordered on June 20, 2005. Brent McDonald, who performed the MRI, noted that there was bone bruising in the medial tibial plateau, torn meniscus and a minimum joint effusion. He opined that the bruising discovered in June 2005 could have been longstanding and caused by the sudden trauma of a fall. Farmer filed a disputed claim for benefits on July 8, 2005.

Following a trial on the merits-, the WCJ determined that Farmer’s medial meniscus injury was causally related to the accident of August 26, 2004, and awarded Farmer the statutory maximum of $2,000.00 in penalties and $5,000.00 in attorney fees. This appeal ensued. Farmer answered the instant appeal requesting an additional $1,500.00 in attorney fees for the costs associated with defending this appeal.

ldiscussion

Standard of Review

Absent an abuse of discretion or manifest error, a reviewing court cannot disturb the factual findings of a trial court. Rosell v. ESCO, 549 So.2d 840 (La.1989). 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. Rosell, supra; Charrier v. Primm, 40,038 (La.App.2d Cir.08/19/05), 909 So.2d 1033.

We find that the appellant cannot show that there was manifest error in the WCJ’s determination -of causation. Stobart v. State, through DOTD, 617 So.2d 880 (La.1993). The record reveals that Farmer reported the injury immediately to his superior who then failed to do an accident report. The accident was witnessed by several coworkers who corroborated Farmer’s version of the events giving rise to the accident. Moreover, Mr. Farmer had no history or complaint of knee problems before the accident, but such complaints arose and persisted thereafter. Lastly, Dr. Savoie, appellant’s physician, deferred to Dr. Sutton, appellee’s treating physician, with respect to his findings concerning the cause of the subject injury. There was no manifest error in the WCJ’s determination that he could not give the opinion of Dr. Savoie great weight as it relates to causation.

Appellants misstate the record without regard for the substance of the testimony, or without any reference to the WCJ’s resolution of the conflicting evidence. Ap-pellee’s coworkers testified that he had ^considerable trouble with the knee following the accident. The record also reveals that Mr. Farmer’s supervisor, Jodie Meeks, failed for weeks to write an accident report in spite of numerous requests by Mr. Farmer to do so. Appellants also seem to ignore the fact that Farmer consistently wore a knee brace following the accident to protect himself.

We find that the record is replete with a compelling factual basis for the WCJ’s conclusion that the August 26, 2004, accident was causally related to Mr. Farmer’s right knee injury. Appellant relied heavily on the testimony of Dr. Savoie; however, by his own admission he did not offer an opinion on the causation of Mr. Farmer’s injury because he “doesn’t do knees, so I can’t say, one way or the other.” As such, he deferred to the conclusions of Dr. Sutton with respect to the causation of Mr. Fanner’s knee trouble. Mr. Farmer more than met the burden of proof necessary to entitle him to the presumption of causation.

Appellants contend that the presumption does not apply because Farmer is not disabled. Under this flawed reasoning, the appellants only have to pay for the surgery if Farmer proves he is disabled. The, appellants fail to appreciate that this is not a presumption of disability but of causation. Even if the court would determine that Farmer is not entitled to a presumption of causation, the evidence entered at trial clearly establishes the causal link betwfeen the accident and Farmer’s injury.

As to the award of attorney fees and penalties, it is subject to the same manifest error standard of review. Oliveaux v. Riverside Nursing Home, 29-419 (La.App.2d Cir.4/2/97), 691 So.2d 340. The employer failed to pay | (¡medical benefits within 60 days of written notice. La. R.S. 23:1201(E). The appellants were not penalized for challenging the surgery, but for riot- acknowledging the claim from its inception and even after investigating the claim, for failing to pay even for Farmer’s visits to physical therapy. As such, we find no error in the trial court’s award of penalties and attorney fees.

As to the answer to the appeal, Farmer requested $1,500.00 in the prosecution of this appeal. We award $750.00 to Farmer for the prosecution of the appeal.

CONCLUSION

Based on the above, we affirm the judgment of the WCJ and award Farmer $750.00 for the prosecution of this appeal. Cost assessed to appellant.

AFFIRMED.


author: DREW, J.

text:
    Tom OWENS and James Wall, Plaintiffs-Appellants, v. SOUTHWEST OUACHITA WATERWORKS, INC., and Willie Smith, Defendant-Appellee.
    No. 42,278-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 20, 2007.

      Paul Loy Hurd, Ouachita, for Appellant.
    DeLaup, Schexnayder & Miranda by Albert Collins Miranda Stephanie L. Cook, for Appellee.
    Before STEWART, PEATROSS and DREW, JJ.
   DREW, J.

hTom Owens and James Wall, plaintiffs-appellants, are disgruntled shareholders of the defendant nonprofit corporation. Defendant Willie Smith is the corporation president. Owens and Wall appeal the trial court’s denial of their request to copy, duplicate, and extract corporate records.

We reverse and render, finding that the ability to inspect corporate records, without the right to copy, duplicate, and extract, would be a useless, hollow, meaningless, and illogical right. Because of the unsettled nature of this unusual dispute, however, we deny the assessment of penalties.

DISCUSSION

At issue is whether a right to copy, duplicate and extract from corporate records is provided to a shareholder of a nonprofit corporation.

La. R.S. 12:223, which pertains to nonprofit corporations, states, in relevant part:

C. Every shareholder and voting member may examine in person, or by agent or attorney, at any reasonable time, the records of the corporation listed in subsection A of this section.
(Emphasis supplied)

La. R.S. 12:103, which pertains to business corporations, states, in relevant part:

D. (l)(a) Upon at least five days’ written notice any shareholder, except a business competitor, who is and has been the holder of record of at least five percent of the outstanding shares of any class of a corporation for at least six months shall have the right to examine, in person or by agent or attorney, at any reasonable time, for any proper and reasonable purpose, any and all of the records and accounts of the corporation and to make extracts therefrom.
(Emphasis supplied)

In our examination of this issue, we are mindful of La. C.C. art. 9, which states:

| ¡When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature.

Further guidance has been provided by the supreme court’s discussion of statutory interpretation in Fontenot v. Chevron U.S.A. Inc., 95-1425, pp. 7-8 (La.7/2/96), 676 So.2d 557, 562:

[T]he paramount consideration for statutory interpretation is the ascertainment of the legislative intent and the reason or reasons which prompted the legislature to enact the law. However, “[w]hen the literal construction of a statute produces absurd or unreasonable results ‘the letter must give way to the spirit of the law and the statute construed so as to produce a reasonable result.’” Green v. Louisiana Underwriters Insurance Co., 571 So.2d 610, 613 (La.1990). La. Civil Code art. 9 instructs that a clear and unambiguous law shall be applied as written “when its application does not lead to absurd consequences.”

Appellants interpret La. R.S. 12:223 to argue that the right of examination must necessarily include the right to copy, duplicate, and extract for the examiners to derive any benefit from the right to examine. Appellees contend that La. R.S. 12:223 allows shareholders in nonprofit corporations the right only to examine, whereas La. R.S. 12:103 specifically allows business corporation shareholders the right to extract. Appellees further point out that the legislature could easily have tracked the same language in both statutes.

Since there is little jurisprudence that assists us in deciding this controversy, we have applied a little common sense to reach a reasonable result. For the right to examine to have any meaning, the right to copy, duplicate, and extract must necessarily be included in the term, unless these plaintiffs can find a savant graduate of a memory course. It is bizarre that |3the records should be snatched away the moment the plaintiffs might pull out a pencil, pen, scanner, tape recorder, piece of slate, chahq computer, or some other method of assembling the data examined.

Appellees argue that because the legislature did not provide for extraction of data, these plaintiffs are forbidden from doing so. On the other hand, nowhere has the legislature prohibited the copying, duplicating, or extracting of examined records. What the plaintiffs seek here is reasonable and logical. A corporation belongs to the shareholders.

When defense counsel were asked to recite the perceived harm of the requested copying, duplicating, or extracting, the responses given were that: '

• the legislature did not provide for it;
• when plaintiffs were in control of the corporation, they were quite unreasonable in their dealings with Smith; and
• the other shareholders were entitled to their privacy.

We have already dealt with the first proposition. We also reject the second argument (against allowing extraction of the materials), because two wrongs do not make a right. The third rationale for disallowing extracts can be easily dealt with -by the learned trial court, should anyone be aggrieved by the plaintiffs’ misuse of this information gained by the utilization of the corporate records:

Perhaps the reason that there is virtually no relevant jurisprudence is because this is a no-brainer, logically. Having said this, the statutory language is indeed puzzling. While we certainly understand the basis for |4the trial court’s ruling, we disagree with its ultimate interpretation. There is no justification, however, for the imposition of penalties here.

We reverse and render, authorizing plaintiffs to inspect and abstract the corporate records of this nonprofit corporation in a reasonable manner and at reasonable times and places, all as directed by the trial court.

DECREE

The judgement below is reversed; The request for penalties is denied. All costs of this appeal are assessed against appel-lees.

REVERSED AND RENDERED.

PEATROSS, J., concurs.

      . A legal and moral concept conceived by the more enlightened of the earliest hunter-gatherers.


author: CARAWAY, J.

text:
    Jeffrey B. SMITH, et al., Plaintiffs-Appellees, v. CITY OF RUSTON, Defendant-Appellant.
    No. 42,281-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 20, 2007.

      Hubley, Marcotte, Rhodes & Hussey by Lydia M. Rhodes, Shreveport, Dawkins & Carter by William S. Carter, Jr., Ruston, for Appellant.
    Broussard, Bolton, Halcomb & Vizzier by Daniel E. Broussard, Jr., Alexandria, for Appellees.
    Before CARAWAY, MOORE and LOLLEY, JJ.
   CARAWAY, J.

bin this suit filed by 35 former and current firefighters against the City of Ru-ston and its Mayor (collectively herein the “■City”), plaintiffs sought a determination of the level of base pay upon which salary differentials were to be calculated under La. R.S. 33:1992, an award for unpaid vacation benefits and out of class dispatcher pay for employees' who performed dispatcher duties. Plaintiffs also sought a mandatory injunction for future compliance by Ruston with the statutes at issue. The former firefighters added a claim for penalties and attorney fees pursuant to La. R.S. 23:631 for the failure to pay wages upon termination of employment. In the bifurcated liability portion of trial, the court ruled favorably for the .firefighters on the issues of the calculation of base pay and unpaid vacation but rejected the claim for out of class dispatcher salary. The court awarded the former employees attorney fees for the denial of vacation pay and denied penalties. Both the firefighters and Ruston have appealed. Finding no error in the trial court’s rulings, we affirm.

Facts and Procedural History

On February 15, 2001, current and former Ruston firefighters instituted this suit for damages against the City grounded in three different wage and vacation disputes. After bifurcating the trial, the trial court heard evidence of 'the firemen’s work schedules and the' City’s pay policies and made initial declaratory judgments regarding the operation 'Of Louisiana statutory law.

|aIn the suit, plaintiffs sought unpaid vacation benefits. The evidence presented at trial showed that effective in September of 2000, the City changed its vacation policy retroactive to August 31, 1999, after consideration of the holding of Kenner Firefighters Assoc. v. City of Kenner, 96-186 (La.App. 5th Cir.8/31/99), 742 So.2d 989, writ denied, 99-2697 (La.11/24/99), 750 So.2d 993. The case addressed the meaning of a vacation day for firefighters who worked 24-hour shifts as a calendar day rather than an eight-hour work day. Pursuant to La. R.S. 33:1996, firemen are entitled to receive eighteen annual vacation days after one year of service.'

The evidence showed that Ruston firemen work 24-hour shifts from seven in the morning until seven the following morning. The firemen work one shift and are off for a forty-eight hour period. Prior to Kenner, supra, it was the City’s policy to require firemen to take three eight-hour vacation days for one unworked 24-hour shift or six vacation day-shifts per year. After the Kenner pronouncement, the City changed its vacation policy to require firemen to take only two calendar days of vacation for one 24-hour shift of vacation or nine days of vacation per year. In the suit, both the current' and former firemen argued that Kenner should be applied retroactively and that they should be entitled to back vacation pay prior to the date of the Kenner decision.

| ¡¡The next claim made by plaintiffs concerned the City’s calculation of differential pay levels for higher- ranking firemen as set forth in La. R.S. 33:1992. La. R.S. 33:1992 provides minimum salaries for higher ranking employees of varying percentages above the base pay of a fireman. The firefighters argued that the City utilized the wrong base pay for the entry level fireman to calculate the higher ranking firemen’s salaries. The evidence showed that at the time of suit, the City’s base pay for firemen was $4.53 per hour. Because the federal minimum wage was $5.15, the City supplemented the base pay with “education” or “EMT” pay of $150.00 per month. Every beginning fireman received the EMT pay whether or not he or she was certified as an EMT. In the determination of the higher ranking salaries of engineers, captains and district chiefs, the City utilized $4.53 as the base pay amount and did not include the EMT pay for a base of $5.15 in calculating the higher ranking employee salaries.

Finally, the firemen claimed entitlement to dispatcher pay (25% above that of a fireman) during the times that they performed dispatcher duties. The evidence showed that the position of dispatcher, or fire alarm operator was once filled by one individual working Monday through Friday, 8:00 a.m. to 5:00 p.m. Officers on duty performed dispatcher work on other shifts. The fireman dispatcher retired in 1993. Both before and after 1993, the dispatcher-related work was not filled by employees functioning solely as dispatchers. Rather, all employees on duty were expected to periodically perform dispatcher work which consisted in part of taking and routing calls. 14At trial, the firemen who testified stated that they worked in this position approximately once or twice a month and did not generally work in the position for the entire 24-hour shift.

For violations of state statutes relating to these wage issues, the plaintiffs sought declaratory judgment and damages. The firemen also sought an injunction ordering the City to comply with the statutory provisions at issue. The former employees also sought penalties and attorney fees under La. R.S. 23:631 and 632 for the failure to pay both vacation pay and wages.

The parties jointly sought bifurcation of the trials for declaratory judgment/injunc-tive relief and damages which was granted by the trial court. This appeal. concerns the trial on the demands for declaratory judgment and injunctive relief. After hearing the evidence, the trial court applied the Kenner pronouncement retroactively and, awarded all plaintiffs either credit or a monetary award for back vacation pay, retroactive to February 15, 1998, or three years from the date of filing suit. For their successful vacation claim, the court awarded the former firefighters attorney fees but rejected their claim for penalties and damages. The court also concluded that the EMT pay should be included in the calculation of the base pay of the entry'level fireman and reservéd the determination of the actual amounts of differential pay for higher ranking employees for the trial on damages. The court rejected the plaintiffs’ claim for dispatcher pay and omitted any direct ruling on the injunction.

|sThe plaintiffs sought a'par'tial new trial on the issues of■ injunction and dispatcher pay. The City also sought a new trial, arguing that the judgment for liability was incomplete due to the trial court’s failure to determine what portion of each firefighter’s pay was to be included in the differential calculation. When both motions for new trials were denied, the City appealed the judgment. The firefighters answered the appeal.

Discussion

The parties’ agreement to bifurcate the trial suggests that the judgment before us is a partial final judgment -under La. C.C.P. art. 1915(A)(5) disposing of “the issue of liability.” Another trial remains concerning “damages” in this case, which will involve an accounting of the alleged underpayment of wage benefits. On the “liability,” side, the trial court effectively made three separate declaratory judgments from the statutory law. The rulings set the .ground rules for the accounting phase of the trial for- delinquent wage and vacation benefits and, in one instance, denied altogether -the firemen’s claims for extra dispatcher pay. In -summary, the trial court decided the following issues:

(i) The base salary paid to the entry -level firefighter for the application of the salary differential schedule mandated by La. R.S. 33:1992(A) (herein- ‘ after the “Base Pay Ruling”);
(ii) The calculation for-annual vacation pay required by La. R.S. 33:1996 (hereinafter the “Vacation Pay Ruling”); and
•| fi(iii) The necessity for payment-of dis- ■ patcher wagés under La. R.S. 33:1992(A)(9) for the department members’ part-time work in fulfill'>'ing the duties of a dispatcher (hereinafter the- “Dispatcher Pay Ruling”). •

I.

Although indirectly related to the trial court’s Base-Pay Ruling, the City’s initial assignment of error does not question that ruling which determined that the salary of the entry level fireman should be based upon $5.15 per hour and that the City miscalculated such salary. Instead, the City argues that even with a base pay of $5.15 per hour, the plaintiffs as higher ranking firemen and employees are still receiving salaries in accordance with the statutory-salary differential schedule.

La. R.S. 33:1992 (“Section 1992”) provides for the salary differential schedule as follows:

A. The minimum monthly salaries of firemen in municipalities having a population of twelve thousand or more and of all parish and fire protection district paid firemen, including salaries payable out of the avails of any special tax provided by the Constitution of Louisiana for increasing the pay of firemen, shall be in accordance with the following schedule, and such salaries shall be paid semi-monthly not later than the fifth and twentieth day of each calendar month:
(1) A fireman shall receive a minimum monthly salary of four hundred dollars per month.
(2) Engineers shall receive a minimum monthly salary of not less than ten percent above that of a fireman.
(3) Lieutenants shall receive a minimum monthly salary of not less than fifteen percent above that of a fireman.
(4) Captains shall receive a minimum monthly salary of not less than twenty-five percent above that of a fireman.
(5) Battalion chiefs and district chiefs shall receive a minimum monthly salary of not less than forty percent above that of a fireman.
(6) Assistant chiefs and deputy chiefs shall receive a minimum monthly salary of not less than fifty percent above that of a fireman.
|7(7) A mechanic or assistant mechanic, or any other person doing this type of work for the fire department, shall receive a minimum monthly salary of not less than twenty-five percent above that of a fireman.
(8)A superintendent of fire alarm system, or any other person doing this type of work for the fire department, shall receive a minimum monthly salary of not less than forty percent above that of a fireman.
(9) A fire alarm operator or dispatcher, or any other person doing this type of work for the fire department, shall receive a minimum monthly salary of not less than twenty-five percent above that of a fireman.
(10) A fire inspector shall receive a minimum monthly salary of not less than twenty-five percent above that of a fireman.
⅜ ⅜ ⅜ ⅝ ⅜

The City’s first assignment of error insists that the plaintiffs failed to prove in the “liability” phase of the proceedings any violation of their entitlement to the statutory differential pay under Section 1992 A. The City claims that when the salary of each senior ranking fireman or employee is properly determined, those salaries meet or exceed the statutory schedule amounts set forth in the proportions above the $5.15 base pay determined by the trial court. While making this argument, the City’s brief shows that there are issues raised in the jurisprudence regarding the consideration of longevity pay, state supplemental pay and other sources of income for the computation of the salaries of senior ranking firemen. With the trial court’s Base Pay Ruling addressing only the entry level fireman’s pay, the other side of the equation went unaddressed and unproven by the plaintiffs.

There is merit in the City’s argument that both the base pay salary of the beginning fireman and the senior ranking fireman’s salary must be determined amidst statutory controversy over the calculation of those salary | ¡¡levels. The trial court’s partial judgment focused only on the benchmark salary of the Ruston entry level fireman. The actual salaries of each of the senior level firemen or employees claiming differential pay in this case may be viewed as a matter for the final accounting which will occur for each affected plaintiff at the second phase of the trial. Indeed, this was obviously the trial court’s view as it rejected the City’s arguments on the motion for new trial to consider the components of the various salary levels for each of the plaintiffs seeking additional differential pay. A question therefore for the second phase of this litigation may involve disputed components of the senior ranking firemen’s income that comprise their salaries for purposes of employing the salary differential schedule of Section 1992 A. The failure to address that question in the initial partial .judgment, however, was not trial court error. The issue was not sufficiently raised or waived by either side in the “liability phase” of this litigation, and the City’s arguments regarding that issue may be made upon determination of the facts concerning plaintiffs’ salaries during the trial for the accounting.

II.

The City’s next assignments of error challenge the trial court’s Vacation Pay Ruling. The City argues that its policy for vacation benefits was based upon a reasonable interpretation of the statutes prior to the 1999 ruling in Kenner, supra. Regardless of its decision in 2000 to raise the vacation benefit allowance retroactive to the time of the Kenner ruling, the City insists that there was no prior deficiency in its payment of vacation benefits and nothing is owed to plaintiffs for additional vacation pay 19between February 1998 (the prescription date) and the fall of 1999 (the publication of Kenner).

The provisions of La. R.S. 33:1996 (“Section 1996”) address vacation time for firemen as follows:

Firemen in municipalities, parishes and fire 'protection districts to which this Subpart applies, after having served one year, shall be entitled to an annual vacation of eighteen days with full pay. This vacation period shall be increased one day for each year of service over ten years, up to a maximum vacation period of thirty days, all of which shall be with .full pay. The vacation privileges herein provided for shall not be forfeited by any member of the department for any cause. Firemen employed on January 6, 1969 shall have their present longevity considered as a factor in the computation of their vacation benefits as provided herein.
The provisions of this section shall in no way be construed to affect in any manner any presently existing system of computing vacation periods under which greater vacation benefits are granted than those provided for1 herein and the same shall continue in full force and effect.

In Kenner, supra, the court reviewed the work schedule for the Kenner firemen which is similar to the three-day work cycle utilized in Ruston. The firemen work a full 24-hour shift and then have 48 hours off the job. The Kenner firemen, after working six scheduled 24-hour shifts under this three-day rotation, were then given five consecutive days off when the full cycle started again. This meant a fireman worked approximately ten 24-hour shifts per month. Likewise, the testimony in this case indicates that Ruston firemen work approximately ten such shifts each month. The issue presented in Kenner and in the similar work setting of |inthis case is: What is the meaning of the “eighteen days with full pay” vacation allowance in Section 1996 within the 24-hour shift system employed by Ruston and other municipal fire departments?

The ruling in Kenner interpreted the statute’s meaning for “eighteen days” based upon the specific number of days during which a Kenner fireman worked each 24-hour shift. Since the Kenner fireman began his 24-hour shift at 7:00 a.m., his shift actually spanned two days, from the morning of the day he arrived until the morning of the next day. The court reasoned that under this shift schedule, when the Kenner fireman took vacation leave of one 24-hour shift, it should be considered as use of two “days” from the eighteen-day statutory allotment. Therefore, the ruling in Kenner granted the firemen the allowance of nine shifts each year to be taken as their statutory 18-day vacation under Section 1996.

The problem with the rationale employed in Kenner is that the “eighteen days” of statutory vacation under Section 1996 can vary statewide depending upon the length of a department’s work shift and the particular time each day when a work shift begins. For example, if the Kenner department made its shift change at midnight each day, then under the court’s rationale, its firemen would be entitled to eighteen 24-hour shifts (or 432 hours) of paid annual vacation instead of the nine 24-hour shifts (216 hours) awarded.

InRejecting the Kenner ruling as the mandated meaning of the 18-day vacation of Section 1996, the City argues that each of the eighteen days of statutory vacation should be understood as equivalent to the generally understood 8-hour work day. Therefore, the City’s pre-2000 policy of allowing six 24-hour shifts (144 hours) to be taken as vacation is the equivalent of eighteen 8-hour work days of vacation or 144 hours of paid vacation.

Providing for statutory construction, Civil Code Article 13 states that “[l]aws on the same subject matter must be interpreted in reference to each other.” In 1942, at the time of enactment of the “eighteen days with full pay” vacation rule of Section 1996, two statutes pertaining to the organization of municipal fire departments already existed which serve to shed some light on the workday of firemen. The statutes, La. R.S. 33:1962 and 1963, remain in our law and provide as follows:

Section 1962. The fire department shall be divided into two forces or platoons, one to perform day service and the other to perform night service. The proper authority may transfer a member of the department from one platoon to another for the good of the service.
Section 1963. The forces shall alternate. On the day of the shift of forces the day force shall be on duty twenty-four hours. This Section does not apply to the City of New Orleans.

From our reading of these statutes in pari materia with Section 1996, and from our understanding of the unique shift work of firefighters on call, we reject the City’s view that the average 8-hour work day of the general public is the proper standard for interpretation of the 18-day vacation grant |12of Section 1996. Those “eighteen days with full pay” should be considered in the context of the 12-hour daily work shifts for firemen envisioned by Sections 1962 and 1963. Therefore, eighteen 12-hour work shifts or nine 24-hour work shifts for a total of 216 hours represent the vacation allowance mandated by Section 1996. The result reached in the Kenner case was correct under the statutory construction we now apply. Prior to the issue having arisen in - Kenner, these statutes were the longstanding law of this state. Accordingly, the trial court’s Vacation Pay Ruling requiring the retroactive payment of nine 24-hour shifts or 216 hours for the statutory “eighteen days” of paid vacation is affirmed. Upon remand, the City shall account to the plaintiffs for such vacation pay from February 1998 to August 31, 1999.

III.

In answer to the appeal,- the plaintiff firemen challenge the trial court’s Dispatcher Pay Ruling, the denial of injunc-tive relief and the denial of penalties.

The evidence shows that there is no full-time dispatcher position in the Ruston Department. Personnel of different rank filled the duties of dispatchers through part-time service. Based upon Section 1991(A)(9), | ixsupra, those plaintiffs receiving the base pay of firemen or additional differential pay are claiming compensation at the rate of 125% of base pay for their part-time dispatcher duties.

In reaching the Dispatcher Pay Ruling, the trial court considered the Title 33 statutory provisions and jurisprudence concluding that the statutory law does not require “that a department have a dispatcher who is assigned only to that duty.” We agree. In particular, the differential pay schedule of Section 1992 is expressed in terms of “monthly salary,” suggesting regular compensation paid monthly for the overall duties of the particular rank of fireman. Section 1992 does not mandate that the part-time fulfillment of duties included for higher ranking positions requires the alteration of the'salary level of the personnel temporarily performing that work. The trial court’s Dispatcher Pay Ruling is affirmed.

We also reject the firefighters’ argument that the trial court erred in failing to grant an injunction for future compliance by Ruston with the statutes at issue. Plaintiffs have failed to demonstrate that the City will not follow the final court pronouncement on these issues, Further, as the City will be bound by that ruling in a money judgment, its enforcement is assured.

Regarding the plaintiffs’ claim for penalties for unpaid wages, La. R.S. 23:631 and 632, if the amount owed to the employee is subject to a bona fide dispute, the court will not consider the failure to pay as arbitrary and will refuse to award penalties. Blaney v. Hulsey, Harwood & Hulsey, 27,983 (La.App.2d Cir.2/28/96), 669 So.2d 661. To say the least, the 114statutory interpretive issues involved in this matter are complicated and allow for various good faith readings of the provisions involved. Accordingly, we find that a bona fide dispute exists and that the trial court appropriately denied recovery of penalties to the firemen.

Conclusion

For the foregoing reasons, the judgment of the trial court is affirmed. Costs of $239.00 are assessed equally between the parties, in accordance with La. R.S. 13:5112.

AFFIRMED.

      . The plaintiffs concede that because of the prescription applicable to unpaid wages their claims may only extend retrospectively to February 1998, three years before the filing of this action.

      . While a new pay plan enacted in 2004 raised the fireman's base pay to $5.15 an hour, the City continues to exclude the $150 in the calculation of upper ranking employees' salaries.

      . As will be discussed below in answer to the City’s first assignment of error, every legal issue presented by the wage and hour statutes may not have been addressed by the trial court’s partial judgment. Nevertheless, the partial judgment may be considered by this court under La. C.C.P. art. 1915(B), and any unaddressed legal issue bearing on the City’s statutory "obligations or "liability” for wages will remain viable on remand.

      . In oral argument and in brief the parties have alluded to the federal wage and hour laws and regulations. The regulated 40-hour work week, or 170 to 180 monthly hours of the average worker, differs significantly from the 240 hours on the job for the firemen working ten shifts each month. Any issue concerning monthly overtime pay and the federal regulations is not involved in this dispute. The meaning of the “eighteen days” vacation allowance, which would be a generous three- and-one-half-week period for an average eight-hour per day beginning worker, should not necessarily be understood in terms of the average work days of non-firemen.

      . We reject the City’s assertion of laches. As explained in Fishbein v. State ex rel. Louisiana State University Health Sciences Center, 04-2482 (La.4/12/05), 898 So.2d 1260, the doctrine of laches is in conflict with this state’s civil laws of prescription. The court repudiated former opinions which suggested that the doctrine may be applicable under certain circumstances. We alsp reject the City's argument that the award of attorney fees was premature. Pursuant to La. R.S. 22:631 and 632, an award of attorney fees is proper when "a well-founded suit for any unpaid wages whatsoever” is filed. As with other aspects of the trial court’s partial ruling, the court made a declaratory judgment that attorney fees will be owed in this case for unpaid wages. Such ruling assumes that unpaid wages will be determined in the accounting phase when the court will fix the attorney fees award as a money judgment.