text:
    Derrick HALL v. MACPAPERS, INC.
    No. 2011-CA-1548.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 30, 2012.

      John W. Redmann, Patrick B. Sanders, Law Office of John W. Redmann, LLC, Metairie, LA, for Plaintiff/Appellant.
    Richard C. Ely, Jr., Roger A. Javier, The Javier Law Firm, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge JAMES F. McKAY III, Judge TERRI F. LOVE, Judge MADELEINE M. LANDRIEU).
   JAMES F. McKAY III, Judge.

[ ]Worker’s Compensation claimant, Derrick Hall, seeks a review of the judgment from the Office of Workers’ Compensation (“OWC”), District 8, Docket # 09-10143, Diane R. Lundeen, Office of Workers’ Compensation Judge (“WCJ”), rendered in favor of the defendant, MaePapers Inc. For the reasons set forth below, we affirm the judgment.

FACTS AND PROCEDURAL BACKGROUND

On August 19, 2009, Derrick Hall was involved in a motor vehicle accident while in the course and scope of his employment, as a truck driver, for MaePapers Inc. (“MaePapers”). As a result of this accident, he essentially sustained injuries to his neck and back and was prescribed a series of pain medications, to wit, Lorcet 10 mg. and Darvocet-N-100. Pursuant to La. R.S. 23:1121(1), he received Temporary Total Disability (“TTD”) indemnity benefits from the date of the accident until November 19, 2009 when his employer, MaePapers, requested that he return to work. Mr. Hall was released to return to work by various treating medical specialist with the caveat that the work be sedentary with light duty jobs. | gMacPapers, in an attempt to accommodate these work restrictions, offered several sedentary positions to Mr. Hall with a pay scale comparable to his pre-accident pay. Mr. Hall never accepted any of the positions, nor did he return to work. In the months that followed the accident and until the trial one and a half years later, Mr. Hall continued visits with various medical physicians. Mr. Hall maintains that his primary reason for not returning to work is that he is in pain and cannot perform his job duties because the prescribed medications produce side-effects. These side-effects include complaints of nausea, dizziness and sleepiness, which he asserts essentially prevent him from performing any job, even sedentary work, and make any means of transportation to and from work impossible.

The deposition testimonies of his various treating physicians were admitted into evidence, including the following: Jason Kennedy D.C., Mr. Hall’s chiropractor; Dr. Robert Steiner, MaePapers’ independent medical examiner (“IME”) physician; Dr. Elliot Greenberg, Mr. Hall’s choice of physicians; Dr. Charles Billings, Mr. Hall’s orthopedist; and Dr. Ralph Katz, the court appointed physician.

The WCJ held: (1) that Derrick Hall suffered an accident while in the course and scope of his employment when he was involved in an auto accident; (2) that Derrick Hall sustained injuries as a result of the August 19, 2009, work-related accident; (3) that Derrick Hall, as a result of the subject work-related accident, was temporarily totally disabled from August 19, 2009 through November 18, 2009, and that the employer properly paid temporary total disability (“TTD”) benefits toUMr. Hall during this period; and (4) that Mr. Hall was capable of working at a sedentary level on November 18, 2009. The WCJ further found (5) that Mr. Hall’s earnings are the same as his pre-injury wages; and (6) that on August 12, 2010, Mr. Hall was capable of working at a medium level; (7) that Mr. Hall failed to carry his burden, and that he is not entitled to supplemental earnings benefits (“SEB”); (8) that Mr. Hall’s work-related injuries necessitated medical care; (9) that Mr. Hall’s employer, MacPapers, shall pay the outstanding New Orleans East Medical Rehab totaling $1,815.82 in accordance with the OWC fee schedule; (10) that Mr. Hall’s employer, MacPapers, shall pay the outstanding American Radiological Services’ bill totaling $106.00 in accordance with the OWC fee schedule; and (11) that MacPapers was not arbitrary, capricious, or unreasonable in its discontinuance of Mr. Hall’s indemnity benefits. Further, the WCJ held (12) that MacPapers reasonably controverted Mr. Hall’s entitlement to indemnity benefits and denied Mr. Hall’s demand for penalties and attorney’s fees in connection with employer’s actions. The WCJ also found that (13) that Mr. Hall is entitled to ongoing necessary and related medical care in conformity with the Act; (14) that Mr. Hall is not entitled to penalties or attorney’s fees in connection with MacPa-pers’ failure to pay the American Radiological Services’ bill or the New Orleans East Rehab bill because Mr. Hall failed to demonstrate that he made written demand upon MacPapers as is required by La. R.S. 23:1120 E; (15) that Mr. Hall’s case is dismissed with prejudice; and (16) that interest shall attach in accordance with law; |4and (17) that the Functional Capacity Evaluation (“FCE”) report by Michael McNeil P.T., is admissible.

LAW AND DISCUSSION

On appeal, Derrick Hall ostensibly asserts that the WCJ erred in failing to find that MacPapers was arbitrary and capricious in terminating his TTD benefits, in failing to award SEB benefits and in failing to assess attorney’s fees and penalties.

It is well settled that factual findings in workers’ compensation cases are subject to the manifest error or clearly wrong standard of appellate review. Winford v. Conerly Corp., 2004-1278, p. 15 (La.3/11/05), 897 So.2d 560, 569; Dean v. Southmark Constr., 2003-1051, p. 7 (La.7/6/04), 879 So.2d 112, 117; Masinter v. Akal Sec., Inc., 2005-1236, p. 3 (La.App. 4 Cir. 6/7/06), 934 So.2d 201, 204. In applying the manifest error standard, the appellate court must determine not whether the fact finder was right or wrong, but whether the fact finder’s conclusion was a reasonable one. Bell v. Mid City Printers, Inc., 2010-0818, p. 7 (La.App. 4 Cir. 12/22/10), 54 So.3d 1226, 1232 (citing Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840, p. 6 (La.7/1/97), 696 So.2d 551, 556).

INDEMNITY BENEFITS

The claimant asserts that the WCJ erred in failing to find that MacPapers was arbitrary and capricious in terminating and not reinstating his TTD benefits.

Temporary Total Disability Benefits

La. R.S. 23:1221(1). Temporary total disability:

|fi(a) For any injury producing temporary total disability of an employee to engage in any self-employment or occupation for wages, whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured, and whether or not an occupation for which the employee at the time of injury was particularly fitted by reason of education, training, or experience, sixty-six and two-thirds percent of wages during the period of such disability.
(b) For purposes of Subparagraph (l)(a) of this Paragraph, compensation for temporary disability shall not be awarded if the employee is engaged in any employment or self-employment regardless of the nature or character of the employment or self-employment including but not limited to any and all odd-lot employment, sheltered employment, or employment while working in any pain.
(c) For purposes of Subparagraph (l)(a) of this Paragraph, whenever the employee is not engaged in any employment or self-employment as described in Subparagraph (l)(b) of this Paragraph, compensation for temporary total disability shall be awarded only if the employee proves by clear and convincing evidence, unaided by any presumption of disability, that the employee is physically unable to engage in any employment or self-employment, regardless of the nature or character of the employment or self-employment, including but not limited to any and all odd-lot employment, sheltered employment, or employment while working in any pain, notwithstanding the location or availability of any such employment or self-employment.
(d) An award of benefits based on temporary total disability shall cease when the physical condition of the employee has resolved itself to the point that a reasonably reliable determination of the extent of disability of the employee may be made and the employee’s physical condition has improved to the point that continued, regular treatment by a physician is not required.

Hence, as set forth in the statute above, a claimant who seeks workers’ compensation benefits on the basis that he is temporarily totally disabled must prove by clear and convincing evidence, without taking pain into consideration, that he is unable to engage in any employment or self-employment. “To prove a matter by ‘clear and convincing’ evidence means to demonstrate that the existence of a disputed fact is much more probable than its nonexistence.” Molinere v. |6Vinson Guard Service, Inc., 2005-0116, p. 5 (La.App. 4 Cir. 7/13/05), 914 So.2d 566, 571, citing Louisiana State Bar Ass’n v. Edwins, 329 So.2d 437 (La.1976). Under Louisiana law, “[T]he question of disability must be determined by reference to the totality of the evidence, including both lay and medical testimony.” Hosli v. Rent-A-Center, Inc., 2006-1466, p. 8 (La.App. 4 Cir. 4/11/07), 957 So.2d 207, 212, citing Dugas v. Rosary House, 93-42 (La.App. 3 Cir. 4/6/94); 635 So.2d 570, 572. Furthermore, a claimant is entitled to temporary total disability (TTD) benefits if he proves by clear and convincing evidence, unaided by any presumption of disability, that he is physically unable to engage in any employment or self-employment, regardless of its nature, including employment while working in pain. La. R.S. 23:1221(1); Gasway v. Cellxion, 44,638, p. 9, (La.App. 2 Cir. 1/27/10), 31 So.3d 566, 573. A claimant who can perform light duty work is not entitled to TTD benefits. Id.

The WCJ must weigh all of the evidence to determine if the claimant has met his burden of proving temporary total disability. Read v. Pel-State Oil Company, 44,218, p. 3, (La.App. 2 Cir. 5/20/09), 13 So.3d 1191, 1192; Koenig v. Christus Schumpert Health System, 44,244, p. 9, (La.App. 2 Cir. 5/13/09), 12 So.3d 1037, 1044. Based on the facts these factors are not at issue. Nevertheless, our own jurisprudence further instructs that in order to carry the burden of proving disability by clear and convincing evidence, the claimant must present “objective medical evidence.” Daniel v. New Orleans Public Service, 2002-2427, p. 6, (La.App. 4 Cir. 12/3/03), 861 So.2d 721, 726.

Pertinent to the issue of TTD benefits, the WCJ in her reasons for judgment noted the various stances of the claimant’s treating physicians during the applicable time period. The WCJ reasons are noted here below.

17Mr. Hall was initially treated at Con-centra Medical Center on the date of the accident, August 19, 2009. On September 2, 2009, Dr. Kennedy opined that Mr. Hall should refrain from working for twelve (12) weeks. On November 18, 2009, Dr. Kennedy revaluated Mr. Hall and indicated that Mr. Hall was capable of sedentary work but that he had not reached maximum medical improvement (“MMI”). On October 19, 2009, Dr. Robert Steiner found that Mr. Hall could perform the sedentary job duties of a job that MacPapers had available for Mr. Hall. On December 2, 2009, Dr. Steiner felt that Mr. Hall could drive and perform light duty work while taking his prescribed medications, Lorcet lOmg and Darvocet N-100, depending on what the light duty job entailed. On December 7, 2010, Dr. Steiner approved an available job at MacPapers within Mr. Hall’s sedentary restrictions. On December 11, 2009, Dr. Kennedy felt that Mr. Hall should not drive, use machinery nor do any activities that required alertness until he was sue that he could perform such activities safely while on medications.

“On November 9, 2009, Dr. Elliot Greenberg, claimant’s choice of physicians, felt that Mr. Hall had a ‘cervical and lumbar spinal/sprain, left shoulder sprain and bilateral knee strain, as well as posttraumatic cephalgia’. He recommended Mr. Hall see a ‘neurologist or a neurosurgeon’. Dr. Greenberg prescribed Lorcet and Darvocet. Dr. Greenberg discharged claimant to Dr. Charles Billings’ care on December 7, 2009.”

On November 24, 2009, Mr. Hall’s attorney demanded reinstatement of Mr. Hall’s TTD benefits. However, as noted above, Dr. Steiner, MacPapers’ IME, issued a second opinion that Mr. Hall was capable of working while taking his prescribed medications.

The trial court did not find that these medical opinions were discordant with each other. Clearly, the WCJ found them to be reasonable reliant determinants in her final decision.

18In the instant matter, pertinent to the issue of credibility and objective observation, the claimant asserts that he was unable to work because of pain and the side effects of his prescribed medications. Claimant’s subjective and self-reported impact of his medications is inextricably intertwined with the trial court’s credibility findings. Contrary to the claimant’s assertions, no doctor found that Mr. Hall’s injuries or the impact of his medications prevented him from working or traveling from his domicile to work. Instead they found that he should not drive while he was experiencing side effects from his medications. Further, Drs. Billings, Katz, Steiner and Greenberg testified that had the claimant complained of any side effects from the prescribed medications they would have prescribed something non-narcotic so that Mr. Hall could drive to work.

Mr. Hall testified at trial that he never told his treating physicians of the side effects of the prescribed medications. Mr. Redmann, Mr. Hall’s attorney, questioned him at trial on this issue.

Q. So, Mr. Hall, other than what you experience from taking the medicines, have you actually had conversations with doctors or people, nurses, or assistants in the doctors’ offices about what to be careful of when you’re taking these medications?
A. Yeah, and they be instructed — like if you go see the doctor, and he—
Q. Don’t tell me generally. Just tell me what conversations you remember having—
A. All right. My personal experience from what I go through with my doctors is that they’ll tell you what to expect from the medicine before you get it. And, you know, they’ll tell me, “Tell me if you like it.” Or, “Tell me what kind of effect that has on you as far as pain.” But I never had a discussion with them telling them what it do to me because they already done forewarned me.
Q. Okay. Now did you — before you take the medicines that are prescriptions that you’ve filled, prescriptions regarding your injuries, would you happen to look at the words on the bottles?
A. Not really. You know, my wife mainly handles that.
Q. Alright. So, if you felt an occasional side effect from these medicines like you’ve described, did you feel — what did you feel you needed to do about it?
IflA. (No Response.)
Q. Did you feel you needed to call the doctor’s office and report that you were having the side effects?
A. Again, they’ve instructed me before they gave it to me. So why would I tell him something that he already ■ knew. You know, I just thought that, you know, that’s what it do, so relieving my pain to a degree. So I might as well go with it.

Mr. Hall went on to testify that Dr. Billings tried injections, as an alternative to the medications, to relieve his pain and that he was still under treatment with Dr. Billings. On cross-examination, Mr. Ely, attorney for MacPapers, questioned Mr. Hall addressing the issue of the medication side effects.

Q. Did you ever make any complaints of those symptoms to either Dr. Green-berg or Kennedy or Billings?
A. Well, again, before they prescribed the meds to me, they gave me a full detail of what the meds will do.- And then my wife, she would look at the transcripts of the medicine that they give at Walgreens and the place the medicine was filled at, and she would let me know why I’m experiencing that. And I already had a clear understanding about the meds.
Q. So your answer is no, you never told any of those doctors you were having any of those symptoms?
A. The answer is no.

This Court has held that, although it may consider a claimant’s uncorroborated testimony of subjective pain concerning what his/her physical limitations might be as a result of that pain, the decision of the court should not be based on claimant’s self-serving testimony on the ultimate issue of whether the claimant is able to work. Duhon v. Holi Temporary Services, Inc., 97-0604, pp. 6-7 (La.App. 4 Cir. 10/1/97), 700 So.2d 1152, 1155; see also Scott v. Lakeview Regional Medical Center, 2001-0538, pp. 5-6 (La.App. 1 Cir. 3/28/02), 818 So.2d 217, 221-222. As this Court stated in Duhon:

We are reminded in Banks [v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 p. 8 (La.7/1/97); 696 So.2d 551, 556] of “the jurisprudential tenet that worker’s [sic] compensation is to be liberally 110construed in favor of coverage,” but we are also bound by La. R.S. 28:1221(3) (c) (ii) which provides that the burden on claimant is not a mere preponderance of the evidence, but one of “clear and convincing evidence” where the disability is “solely as a consequence of substantial pain.” The legislature obviously recognized the potential for abuse in this area when it enacted this heightened standard of proof.

Duhon, 97-0604 at p. 7, 700 So.2d at 1155. See also, Bethley v. City of New Orleans, 2006-0921, p. 6, (La.App. 4 Cir. 10/18/06), 945 So.2d 738, 742.

After a review of the record and given the totality of the evidence, we find that the claimant has failed to prove by clear and convincing evidence that he was medically incapable of performing some type of work. Therefore, based upon applicable jurisprudence and pursuant to La. R.S. 23:1221(1), Mr. Hall was not entitled to receive TTD benefits after MacPapers discontinued his benefits.

Supplemental Earning Benefits

Mr. Hall asserts that the WCJ erred in finding that he was not entitled to SEB benefits.

Under the provisions of La. R.S. 23:1221(3)(a), an employee is entitled to receive SEB benefits if the employee sustains a work-related injury that results in an inability to earn ninety percent or more of the average pre-injury wage. Initially, the employee bears the burden of proving by a preponderance of the evidence that the injury resulted in her inability to earn that amount under the facts and circumstances of the individual case. Freeman v. Poulan/Weed Eater, 93-1530, p. 7 (La.1/14/94), 630 So.2d 733, 738.

Once the employee’s burden is met, the burden shifts to the employer who, in order to defeat the claim for SEBs, must prove, by a preponderance of the evidence, that the employee is physically able to perform a certain job and that the job was offered to the employee or that the Injob was available to the employee in his or the employer’s community or reasonable geographic region. Banks v. Industrial Roofing and Sheet Metal Works, Inc. 96-2840, p. 9, (La.7/1/97), 696 So.2d 551, 556. Actual job placement is not required. Caparotti v. Shreveport Pirates Football Club, 33,570, p. 6, (La.App. 2 Cir. 8/23/00), 768 So.2d 186,191.

The amount of an award of SEBs is based upon the difference between the claimant’s pre-injury average monthly wage and the claimant’s proven post-injury monthly earning capacity. See La. R.S. 23:1221(3)(a).

To determine if a trial court’s finding that an employee has met his initial burden of proving entitlement to SEBs is manifestly erroneous, a reviewing court must examine the record for all evidence that bears upon the employee’s inability to earn ninety percent or more of the pre-injury wages. Seal v. Gaylord Container Corp., 97-0688, p. 8, (La.12/02/97), 704 So.2d 1161, 1166.

The WCJ reasoned that Mr. Hall had met with a vocational rehabilitation counselor who identified multiple suitable jobs that were within Mr. Hall’s physical capabilities and were in the employer’s community or within a reasonable geographic region. The jobs that the vocational rehabilitation counselor identified ranged in pay from $8.00 to $13.00 per hour. The WCJ also noted that on three occasions MacPapers offered Mr. Hall a modified job checking driver logs. This job was at or near the same location as his pre-acci-dent job, at the same rate of pay and within Mr. Hall’s physical capabilities, training, education and experience. Mr. Hall simply did not take this position, which was well within the medical restrictions of his doctors.

As noted above, Mr. Hall claims that he cannot get to work nor perform the duties of a job mainly because of the side-effects of his medications. None of the | ^doctors opined that he could or should drive while having side-effects from his prescribed medications. At trial, Mr. Hall admitted that he does not always experience side effects when he takes the narcotic medications. Further, his side effects range in severity. Dr. Steiner’s expert medical opinion confirms that Mr. Hall would be able to work at the job MacPapers identified while taking narcotic medications. Mr. Hall failed to produce any evidence into the record that would contradict the expert medical opinions. Mr. Hall’s argument that he would be unable to get to and from work if he were unable to drive is ludicrous. Driving is not one of the duties of his modified job nor is it the responsibility of an employer to provide transportation to its employees.

Mr. Hall failed to sustain his burden of proof that he was entitled to any SEB benefits. Mr. Hall was offered' suitable jobs with MacPapers at his former pay but declined to accept the positions. Given the totality of the evidence, the WCJ reasoned, “Mr. Hall failed to carry his burden that he had a loss of any earning capacity as a result of his work-related injury after employer discontinued the benefits. Accordingly, Mr. Hall is not entitled to supplemental earnings benefits.” We agree.

PENALTIES AND ATTORNEY’S FEES

Mr. Hall asserts that the WCJ erred in failing to award penalties and attorney fees based on the arbitrary and capricious actions of MacPapers in discontinuing and his TTD benefits, and failing to timely pay his medical expenses.

Awards of penalties and attorneys’ fees in workers’ compensation cases are essentially penal in nature, being imposed to discourage indifference and undesirable conduct by employers and insurers. Williams v. Rush Masonry, Inc., 98-2271 (La.6/29/99), 737 So.2d 41, 46. Although the Worker’s Compensation 11sAct is to be liberally construed in regard to benefits, penal statutes are to be strictly construed. Id. “Arbitrary and capricious behavior consists of willful and unreasoning action, without consideration and regard for facts and circumstances presented, or of seemingly unfounded motivation.” Brown v. Texas-LA Cartage, Inc., 98-1063, p. 8-9 (La.12/1/98), 721 So.2d 885, 890.

The determination of whether an employer should be cast with penalties and attorney fees is essentially a question of fact, and the WCJ’s findings shall not be disturbed absent manifest error. Authement v. Shappert Eng’g, 2002-1631, p. 12, (La.2/25/03), 840 So.2d 1181, 1188-89. In determining the factual issue of whether an employer’s actions are arbitrary and capricious, the manifest error standard of review is applied, and the crucial inquiry is “whether the employer can articulate an objective reason for discontinuing benefits at the time it took the action.” Frith v. Riverwood, 2004-1086, p. 12 (La.1/19/05), 892 So.2d 7, 15. The Louisiana Supreme Court has also considered the circumstances under which an appellate court should reverse the decision of a workers’ compensation judge denying penalties and attorneys’ fees. In J.E. Merit Constructors, Inc. v. Hickman, 00-0943 (La.1/17/01), 776 So.2d 435, 438, the Supreme Court found that an employer’s actions in terminating an employee’s supplemental earnings benefits did not rise to the level of being arbitrary and capricious even if the actions were legally incorrect. The Supreme Court stated that “[i]t would very rarely be appropriate for an appellate court to award attorney’s fees based on employer actions which the trier of fact previously found did not rise to the level of being arbitrary and capricious (and in fact found to be meritorious.)” Id.

The WCJ was succinct in her reasons for judgment on this issue. MacPapers discontinued Mr. Hall’s TTD benefits on November 19, 2009. They had sufficient |14reason to believe that Mr. Hall was capable of performing a sedentary duty job. He was in fact offered such a job within the restriction and for comparable pay. He declined the job offer despite medical testimony that he was medically capable of performing the duties of the modified position. Therefore, MacPapers’ decision to discontinue Mr. Hall’s TTD benefits was reasonable and not arbitrary and capricious.

The WCJ found that Mr. Hall’s testimony lacked credibility. She noted that at his Functional Capacity Evaluation (“FCE”), Mr. Hall exhibited self-limiting behavior on 25% of the sixteen (16) tasks he was asked to perform. She also noted that she had the opportunity to observe his demeanor during the multiple days of trial and that he did not exhibit much distress.

He did not grimace, adjust his posture, or move around in this chair during the lengthy trial. When aware that he was being observed, he made audible sounds, but was able to move freely and bend freely when distracted and sitting at the counsel table. He did not make any sounds when he did not think he was being observed. After a two day rest between the first and second day of trial, Mr. Hall returned to court with a dramatic limp that was exaggerated and varied in magnitude, a symptom with which he did not present on the first day of trial. Mr. Hall’s testimony was dramatic but not compelling in light of the other evidence, his conduct in court, and his demeanor.

Additionally, the WCJ found that Mr. Hall failed to introduce any evidence to demonstrate that he made written demand, which is required for any penalties to be awarded for failure to pay medical bills. These include the New Orleans East Rehab bill in the amount of $1,815.82 and the American Radiology Services bill in the amount of $106.00. The WCJ noted that MacPapers is obligated to pay these bills for necessary and related treatment pursuant to the Louisiana Workers’ Compensation fee schedule.

1 ifiThe WCJ made a factual determination that MacPapers was not arbitrary and capricious in their actions toward Mr. Hall. We will not disturb its denial of penalties and attorney’s fees on appeal.

We find on the record, taken as a whole, that sufficient credible medical evidence supports the conclusion that the WCJ’s ruling was a reasonable one, and find no manifest error in the ruling. For the foregoing reasons in this opinion, we affirm the WCJ’s decision.

AFFIRMED


source: Caselaw Access Project

author: MADELEINE M. LANDRIEU, Judge.

license: Public Domain

text:
    Dennis G. DRISCOLL v. Eileen Ann Moore MAZALESKI, in her Capacity as Testamentary Executrix of the Succession of Muriel Bothner Moore.
    No. 2011-CA-1719.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 30, 2012.

      Charles L. Stern, Jr., Danielle C. Ba-bashoff, Margaret V. Glass, Steeg Law Firm, LLC, New Orleans, LA, for Plaintiff/Appellant.
    Robert A. Barnett, Guste, Barnett, Schlesinger, Henderson & Alpaugh, L.L.P., New Orleans, LA, for Defendant/Appellee.
    (Court composed of Chief Judge CHARLES R. JONES, Judge MADELEINE M. LANDRIEU, Judge JOY COSSICH LOBRANO).
   MADELEINE M. LANDRIEU, Judge.

hDennis Driscoll suspensively appeals the trial court’s judgment that distributed funds deposited into the registry of the court among himself; his brother, John Driscoll; and his cousin, Eileen Moore Ma-zaleski, in her capacity as executrix of the succession of her deceased mother, Muriel Moore. For the reasons that follow, we amend the judgment in part and affirm as amended.

FACTS AND PROCEEDINGS BELOW

On June 16, 2005, Dennis Driscoll filed the instant action against the succession of his aunt, Muriel Moore, for partition of 3117-3119 Cadiz Street, a side-by-side shotgun double Dennis co-owned with her prior to her death in February, 2005. The property consists of two separate residences that share exterior walls and a roof but have separate mailing addresses and exterior doors. The history of the ownership of this property is pertinent to this appeal.

For nearly forty years, the property was co-owned by two related married couples: John L. Driscoll and his wife Helen; and Edward C. Moore and his wife Muriel (the sister of Helen). The Driscolls lived in 3119 Cadiz with their two sons, |9John E. Driscoll and Dennis Driscoll. The Moores lived in 3117 Cadiz with their only child, a daughter named Eileen. In 1985, Helen Driscoll died, leaving her one-fourth ownership interest in the property to her two sons, with their father John L. Driscoll having a usufruct for life over their portion. A Judgment of Possession filed in Helen’s succession and registered in the conveyance records on July 3,1985 reflects this inheritance. In 1992, John E. Driscoll died, terminating the usufruct and leaving his own one-fourth interest in the property to his two sons equally, as reflected by a Judgment of Possession filed June 22, 1993. Approximately one year later, the two Driscoll sons agreed to split the various assets they had been left by their father in a different manner. As a result, John E. Driscoll and Dennis Driscoll signed and filed in the conveyance records on April 14, 1994, an Amended Judgment of Possession that granted Dennis an undivided one-half ownership interest in 3117-3119 Cadiz.

By this time, Edward Moore had also died, and his wife Muriel was living in 3117 Cadiz alone. From 1995 on, Dennis Dris-coll, co-owner with his aunt Muriel, lived with his family in Ohio and visited New Orleans approximately once per year, staying at 3119 Cadiz during those visits. Muriel Moore, however, paid the majority of the maintenance expenses, property taxes, and insurance premiums for the entire property until her death in February, 2005. Muriel bequeathed her share of the double to her daughter Eileen Moore Ma-zaleski, who serves as the executrix of her mother’s estate.

Is As noted previously, Dennis Driscoll filed the instant partition action in June, 2005, against Ms. Mazaleski, in her capacity as executrix of the Succession of Muriel Moore. Ms. Mazaleski answered the petition and asserted a reconventional demand against Dennis Driscoll and his brother, John E. Driscoll, seeking reimbursement for their share of common expenses Muriel Moore had paid for the benefit of the property. Ms. Mazaleski simultaneously filed an exception seeking the joinder of John E. Driscoll as an indispensable party to the plaintiffs action. In support of her exception, Ms. Mazaleski asserted that, according to the public records, John E. Driscoll was still the owner of the one-eighth undivided interest in 3117-3119 Cadiz that he had inherited from his mother, Helen. In response to the exception, on August 18, 2005, Dennis Driscoll filed an amended petition adding John E. Dris-coll as a defendant to the partition action.

On August 29, 2005, Hurricane Katrina severely damaged the double. Ms. Mazale-ski deposited into the registry of the court the sum of $34,959.34, which represented one-half the insurance reimbursement she had received for the hurricane damage to the property. Additionally, in 2008, Dennis and John E. Driscoll agreed to jointly sell their combined one-half interest in the property to Ms. Mazaleski for the sum of $30,000.00, which was also deposited into the | ¿registry of the court. Accordingly, when the matter was tried on December 15, 2010, there were only two issues remaining to be decided:

(1) Determination of the respective ownership interests of John E. Driscoll and Dennis Driscoll at the time they conveyed their interests to Ms. Mazaleski, for the purpose of dividing the sale proceeds between the two brothers; and
(2) Determination of the amount of reimbursement for common expenses due the Succession of Muriel Moore by Dennis Driscoll and/or John E. Driscoll.

Dennis Driscoll, John E. Driscoll and Eileen Mazaleski testified as the only witnesses during a one-day bench trial held on December 15, 2010. On July 20, 2011, the trial court issued a detailed written judgment in which the trial judge noted that she had “bifurcated” the matter for the ease of addressing the two separate issues. Regarding the first issue, the ownership status of the property between Dennis and John Driscoll at the time they conveyed their interests to Ms. Mazaleski, the trial court held that John E. Driscoll still owned the one-eighth share he had acquired from his mother, while Dennis Driscoll owned a three-eighths share. Therefore, the trial court divided the $30,000.00 proceeds from the sale by awarding John twenty-five percent ($7,500.00) and Dennis seventy-five percent ($22,500.00). Regarding the second issue, Ms. Mazaleski’s reconventional demand for reimbursement of common expenses, the trial court held that the Succession of Moore was owed $24,231.30 by Dennis Driscoll, which amount |,^represented one-half of the common expenses paid by Muriel Moore for the benefit of the entire property, less one-half of the common expenses paid by Dennis Driscoll. The trial court therefore ordered that $24,231.30 of the $34,959.34 being held in the registry of the court, plus legal interest, be distributed by check to the Succession of Moore, and that the remainder be distributed by check to Dennis Driscoll. Finally, the trial court ordered that, in the event the funds on deposit with the Clerk of Court proved insufficient to satisfy the judgment in favor of the Succession of Moore, Dennis Driscoll was cast in judgment for the shortfall, as well as for all costs of the proceedings.

Dennis Driscoll filed a suspensive appeal from this judgment. The Succession of Moore filed an appellee brief contending that the portion of the judgment awarding reimbursement to the Succession and casting Dennis Driscoll in judgment for any shortfall and for costs should be affirmed. John E. Driscoll has not filed a brief or otherwise participated in this appeal.

ISSUES

On appeal, Dennis Driscoll asserts that the trial court committed two legal errors, namely:

(1) The trial court incorrectly held that John E. Driscoll retained a one-eighth interest in 3117-3119 Cadiz after he had signed the Amended Judgment of Possession, and thus incorrectly ordered that John E. Driscoll be awarded a portion of the sale proceeds held in the court registry;
| ñ(2) The trial court incorrectly failed to reduce the amount of the reimbursement owed to the Succession of Moore by the value of Muriel Moore’s enjoyment of the property, as required by Louisiana Civil Code article 806.

STANDARD OF REVIEW

The appellant asserts that the trial court has misinterpreted the law in two respects: (1) the effect of the Amended Judgment of Possession on the Driscoll brothers’ respective ownership interests, and (2) the application of Civil Code article 806 to the reimbursement claim. Because the appellant does not dispute the trial court’s factual findings but alleges only legal errors, the appropriate standard of review is as follows:

The standard of appellate review of questions of law is to determine whether the trial court was legally correct or legally incorrect. Cangelosi v. Allstate Insurance Co., 96-0159 (La.App. 1 Cir. 9/27/96), 680 So.2d 1358. If the trial court’s decision was based on its erroneous interpretation or application of law, rather than a valid exercise of discretion, such incorrect decision is not entitled to deference by the reviewing court. Conagm Poultry Co. v. Collingsworth, 30,155, p. 2 (La.App. 2 Cir. 1/21/98), 705 So.2d 1280,1281-1282.

Billieson v. City of New Orleans, 2002-1993, pp. 3-4 (La.App. 4 Cir. 9/17/03), 863 So.2d 557, 560. We therefore have reviewed the record to determine whether the trial court correctly applied the law in this case.

DISCUSSION

We first note that the trial court’s judgment is inconsistent on its face. The trial court found that John E. Driscoll still owned a one-eighth interest in the property at the time he and his brother conveyed their combined interests to the Succession of Moore, and it therefore awarded John a corresponding percentage of |7the sale proceeds. Despite finding him to be a co-owner, however, the trial court did not require that John contribute any amount to the reimbursement awarded the Succession of Moore for the payment of common expenses; nor did the court award John any share of the insurance proceeds attached to the property.

Dennis Driscoll does not mention this inconsistency in his appellant brief. He does, however, argue that the trial court erred by finding that John was a co-owner entitled to receive a percentage of the sale proceeds. We first address that argument.

Respective Ownership Interests of Dennis and John Driscoll

In the instant case, John E. Driscoll testified that when he signed the 1994 Amended Judgment of Possession relative to his father’s succession, he intended to convey his entire interest in 3117-3119 Cadiz to his brother Dennis, and he believed he had done so. John further testified that he continued to believe he had no ownership interest in the property until the instant action was filed (in 2005), when he first learned, through his attorney, that on the face of the public records, he still owned a one-eighth share of the property he had inherited from his mother. John testified that if he were, in fact, still a co-owner, he wanted to pay his share of the reimbursement due his aunt’s succession for the common property expenses paid by her.

In oral reasons recited from the bench, the trial court judge stated that she had based her conclusion primarily upon Louisiana Civil Code Article 958. That article, however, which relates to the informal acceptance of succession property, |shas no applicability to the instant situation. The article provides: “Acts of the successor concerning property that he does not know belongs to the estate do not imply an intention to accept.” The relevant question for the trial court to answer was not whether John E. Driscoll had accepted his mother’s succession and/or his father’s succession. Rather, the issue was whether the 1994 Amended Judgment of Possession, which ordered that Dennis Driscoll be put into possession of “an undivided one-half (1/2) interest in and to” the immovable property designated as 3117-3119 Cadiz Street, could legally convey an undivided one-half interest to Dennis given that the decedent (the father of Dennis and John) owned only an undivided one-fourth interest at the time of his death, with his sons Dennis and John each owning the one-eighth interest they had acquired in 1985 from their mother’s succession. Although the 1994 Amended Judgment of Possession was filed in the conveyance records, there was no corresponding document amending the 1985 Judgment of Possession in the mother’s succession. Therefore, insofar as third persons were concerned, the 1994 Amended Judgment of Possession may not have been sufficient to convey to Dennis the one-eighth interest John had inherited from his mother. Therefore, at the time this lawsuit was instituted, the public records, at least arguably, reflected the ownership of 3117-3119 Cadiz to be as follows:

| ¡[Succession of Muriel Moore — undivided one-half interest;
Dennis Driscoll — undivided three-eighths interest; and
John E. Driscoll — undivided one-eighth interest.

Louisiana Civil Code Article 1839 provides, in pertinent part: “An instrument involving immovable property shall have effect against third persons only from the time it is filed for registry in the parish where the property is located.” There is no question that Ms. Mazaleski, the original defendant in this partition action, is a “third person” within the terms of Article 1839. However, the issue presented for the trial court’s decision in the instant case was not whether John E. Driscoll still owned a one-eighth share vis-a-vis Ms. Mazaleski, but whether he retained that share vis-á-vis his brother Dennis. In 2008, prior to the trial of this action, John and Dennis jointly conveyed their combined interests to the Succession of Moore for $30,000.00. Thereafter, when Ms. Ma-zaleski deposited those sale proceeds into the registry of the court, she removed the Succession from any involvement in the trial court’s decision regarding Dennis’ and John’s prior ownership of the property. Because Dennis and John were both parties to the 1994 Amended Judgment of Possession, their rights with regard to each other were controlled by the document they signed rather than by the public records.

ImBy signing the Amended Judgment of Possession, Dennis and John made an agreement with each other that Dennis would take over John’s interest in 3117-3119 Cadiz in exchange for John receiving other consideration from his father’s succession. The testimony of the two brothers confirms that when they signed that document, their mutual intent was that John’s entire interest in the property be transferred to Dennis. Such a voluntary partition of property among co-owners/coheirs is recognized and permitted by Louisiana law. Moreover, any attempt to refute the terms of the Amended Judgment of Possession in this proceeding would constitute a collateral attack on the judgment, which the law does not allow.

Accordingly, we conclude that the trial court committed legal error by finding that John E. Driscoll retained a one-eighth interest in 3117-3119 Cadiz to the detriment of the ownership interest possessed by his brother Dennis at the time they jointly conveyed their mutual interests in the property to Ms. Mazaleski as executrix of the Succession of Moore. The trial court’s order that twenty-five percent of the proceeds from the sale of that property be distributed to John E. Driscoll and the remainder to Dennis Driscoll was legally incorrect. We therefore vacate that order and amend the judgment to order that the entire $30,000.00 proceeds of the sale be distributed to Dennis Driscoll. We note that our ruling cures the inconsistency that existed in the trial court’s original judgment.

| nReimbursement for Common Expenses Paid by Muriel Moore

Dennis Driscoll next argues that the trial court committed legal error by failing to reduce the amount of the reimbursement he owed his aunt’s succession by the value of her enjoyment of the property, as required by Louisiana Civil Code article 806. That article provides:

A co-owner who on account of the thing held in indivisión has incurred necessary expenses, expenses for ordinary maintenance and repairs, or necessary management expenses paid to a third person, is entitled to reimbursement from the other co-owners in proportion to their shares.
If the co-owner who incurred the expenses had the enjoyment of the thing held in indivisión, his reimbursement shall be reduced in proportion to the value of the enjoyment.

The trial court found that the reduction in reimbursement provided for in the second paragraph of article 806 was not applicable to the circumstances presented by the instant case. We agree.

Dennis Driscoll alleges in his brief that a reduction in the reimbursement is appropriate because “[i]t is undisputed that Ms. Moore had exclusive use of 3117 Cadiz Street, half of the Property, from January 1992 until February 2005, approximately 146 months.” Acknowledging this fact, we nevertheless conclude, as did the trial court, that no reduction for Ms. Moore’s enjoyment of the property is warranted. As the appellant admits, Ms. Moore did not have use or enjoyment of the entire property; she only had use or enjoyment of one-half, the side in which she lived. Dennis Driscoll did not rent out the other side, but he and his family stayed in that side whenever they visited New Orleans. Under these circumstances — a divided house co-owned by two parties, each of which has use of only his |12side — there is no reduction for enjoyment due under article 806. Accordingly, we conclude that the trial court’s failure to reduce the reimbursement owed the Succession of Moore was legally correct. -

CONCLUSION

For the reasons stated, we amend the judgment to delete the order distributing insurance proceeds in the amount of $7,500.00 to John E. Driscoll, and to increase the amount of insurance proceeds ordered to be distributed to Dennis Dris-coll to $30,000.00. In all other respects, the judgment of the trial court is affirmed.

AMENDED AND AFFIRMED AS AMENDED

      . The memorandum in support of Ms. Ma-zaleski’s exception, filed in the trial court, suggests that because the 1994 Amended Judgment of Possession signed by the two Driscoll brothers was filed only in their father's succession, with no corresponding document filed in their mother’s succession, the 1994 Amended Judgment had transferred to Dennis only the one-eighth interest John had inherited from his father, not the one-eighth interest John had inherited from his mother in 1985. Ms. Mazaleski therefore believed that at the time the partition action was filed, her mother’s succession held a one-half share in the property, John held a one-eighth share, and Dennis held a three-eighths share.

      . We do not decide here the issue of what ownership was reflected in the public records because that issue is now moot. Regardless of the respective ownership interests of Dennis and John prior to the sale to the Succession of Moore, their joint conveyance of their combined interests to the Succession in 2008 cleared the title on the public records, as evidenced by this opinion.

      . See La. C.C. art. 809; and Katz v. Katz, 423 So.2d 1277 (La.App. 4th Cir.1982).

      .In Allen v. Commercial Nat. Bank, 243 La. 840, 147 So.2d 865, 868 (1962), the Supreme Court stated: “No principle of law has received greater and more frequent sanction, or is more deeply imbedded in our jurisprudence, than that which forbids a collateral attack on a judgment or order of a competent tribunal, not void on its face ab initio." See also Salles v. Salles, 2004-1449 (La.App. 1 Cir. 12/2/05), 928 So.2d 1.


author: JAMES F. McKAY III, Judge.

text:
    STATE of Louisiana in the Interest of R.L.
    No. 2011-CA-1721.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 30, 2012.

      Leon A. Cannizzaro, Jr., District Attorney of Orleans Parish, Felicity Strachan, Assistant District Attorney of Orleans Parish, New Orleans, LA, for State of Louisiana.
    Nelson Bowman, Juvenile Regional Services, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge JAMES F. McKAY III, Judge TERRI F. LOVE, Judge ROSEMARY LEDET).
   JAMES F. McKAY III, Judge.

_JjThe juvenile, R.L., appeals the judgment of the Juvenile Court for the Parish of Orleans, denying his motion to suppress the evidence and adjudicating him delinquent for the violation of La. R.S. 14:95.8, to wit, illegal possession of a handgun by a juvenile. For the reasons that follow, we affirm the trial court’s judgment.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

On the night of July 17, 2011, after 10:00 p.m., New Orleans Police Department Officers Melvin Wiltz, in the passenger seat, and Officer Mitchell, the driver of the police unit, were patrolling the 5th District in the area of Mandeville Street and N. Der-bigny Street. At about 10:30 p.m., they observed two juveniles and two adults standing on the corner in the 1600 block of Mandeville. Officer Wiltz testified that he observed four black males, two of those males he observed to be known juveniles, one being R.L. Officer Wiltz testified that he knew R.L. and that he resided at 1632 Music Street. Officer Wiltz believed that R.L. was in violation of the City’s curfew ordinance as he was not with a parent or guardian ]2after curfew in what is a high crime area. Based on that situation, he took R.L. into custody. During R.L.’s detention, Officer Wiltz conducted a security/protective pat down search of R.L. and discovered a loaded hand gun in his front right waistband. He immediately handcuffed him and placed him in the rear seat of the police car.

On July 18, 2011, the State filed a delinquency petition charging that R.L. was in violation of La. R.S. 14:95.8, illegal possession of a fire arm by a juvenile. On August 10, 2100, defense counsel filed a motion to suppress the evidence based upon an unlawful and unconstitutional arrest. On October 27, 2011, R.L. appeared before Section “C” of the Orleans Parish Juvenile Court for his scheduled adjudication hearing. The juvenile court, during the course of the trial, conducted the hearing on the defense’s motion to suppress. The judge denied the motion to suppress and adjudicated R.L. to be a delinquent child. R.L. was sentenced to serve six (6) months in a secured detention with the Office of Juvenile Justice (“OJJ”), suspended, and one (1) year active probation with the OJJ. It is from this denial of R.L.’s motion to suppress and his adjudication of delinquency that R.L. appeals.

STANDARD OF REVIEW

As a court of review, we grant great deference to the juvenile court’s factual findings, credibility determinations, and assessment of witness testimony. State ex rel. W.B., 2008-1458, p. 1 (La.App. 4 Cir. 4/22/09), 11 So.3d 60, 61, writ denied, 2009-1129 (La.1/22/10), 25 So.3d 139. More pertinent to the case sub judice, a trial court’s ruling on a motion to suppress the evidence is entitled to great weight, 1.^because the court has the opportunity to observe the witnesses and weigh the credibility of their testimony. State in the Interest of J.S., 2008-1401, p. 4 (La.App. 4 Cir. 2/18/09), 6 So.3d 904, 907; State in the Interest of P.L, 2011-1173, p. 4 (La.App. 4 Cir. 1/11/12), 81 So.3d 983, 986.

In order to adjudicate a child delinquent, the State must prove beyond a reasonable doubt that the child committed the delinquent act alleged in the petition. La. Ch.C. art. 883. The standard for the State’s burden of proof in a juvenile delinquency proceeding is “no less strenuous than the standard of proof required in a criminal proceeding against an adult.” State in the Interest of AG., 630 So.2d 909, 910 (La.App. 4 Cir. 12/30/93); State in the Interest of G.M., 617 So.2d 219, 221 (La.App. 5 Cir. 4/14/93).

In evaluating the sufficiency of evidence to support a conviction, an appellate court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The Jackson standard of review is applicable in juvenile delinquency cases. State in the Interest of T.E., 2000-1810, p. 4 (La.App. 4 Cir. 4/11/01), 787 So.2d 414, 417.

In addition, La. Const. art. V, § 10(B) mandates that an appellate court review both law and facts when reviewing juvenile adjudications. “While delinquency proceedings may in many ways implicate criminal proceedings, sometimes even mimicking them, they are nonetheless civil in nature.” State in the Interest of D.R., 2010-0405, p. 5 (La.App. 4 Cir. 10/13/10), 50 So.3d 927, 930. Therefore, as in the review of civil cases, a factual finding made by a trial court in a juvenile delinquency adjudication may not be disturbed by an appellate court |4unless the record evidence as a whole does not furnish a basis for it, or it is clearly wrong. See State in the Interest of Batiste, 367 So.2d 784 (La.1979); State ex rel. E.D.C., 39,892 (La.App. 2 Cir. 5/11/05), 903 So.2d 571; State ex rel. T.W., 2009-532 (La.App. 3 Cir. 10/7/09), 21 So.3d 465; and State in the Interest of S.S., 557 So.2d 407 (La.App. 4 Cir.1990). In sum, we apply the “clearly wrong-manifest error” standard of review to determine whether there is sufficient evidence to satisfy the standard of proof beyond a reasonable doubt.

ASSIGNMENT OF ERROR

In his sole issue on appeal, R.L. asserts that the juvenile court erred in admitting evidence obtained pursuant to an unlawful and unconstitutional arrest and in denying his motion to suppress the evidence.

The Fourth Amendment of the U.S. Constitution and Art. I, § 5 of the Louisiana Constitution protect persons from unreasonable searches and seizures. In an effort to discourage police misconduct, evidence recovered as a result of an unconstitutional search or seizure is inadmissible. State v. Tucker, 626 So.2d 707, 710 (La.1993); State v. Sykes, 04-1199, 04-0947, p. 4 (La.App. 4 Cir. 3/9/05), 900 So.2d 156, 158. On trial of a motion to suppress the evidence, the State has the burden of proving the admissibility of all evidence seized without a warrant. La.C.Cr. P. art. 703(D).

DISCUSSION

In the instant case, which combined the motion to suppress with the adjudication hearing, the State, in order to establish that it had a constitutional right to stop R.L. and to seize evidence offered against him, offered the testimony of the arresting officer, Melvin Wiltz. Officer Wiltz testified that on the evening of July 17, 2011, he observed R.L. and three other black males standing on the sidewalk in I Ahe 1600 block of Mandeville Street, Officer Wiltz noted that he was familiar with R.L. from previous stops and knew that he was a juvenile. He testified that he detained him for a curfew violation. Before Officer Wiltz placed R.L. in the police car, he conducted a pat down for his safety. During the pat down he discovered the loaded handgun in R.L.’s front right waistband.

At this time, during the course of Officer Wiltz’s testimony, the State offered, filed and introduced the hand gun into evidence. The defense did not object and the trial court admitted the hand gun into evidence.

On cross-examination, Officer Wiltz reiterated that he knew R.L. was a juvenile from previous stops. He also affirmed that on the evening in question he saw R.L. with three other black males. He testified that there were other people on the corner, but he did not elaborate. Officer Wiltz also testified that this was an area that he patrolled regularly and that it was a high crime area. Officer Wiltz confirmed that this was a residential area but that he knew that R.L. resided at 1682 Music Street not in the 1600 block of Mandeville Street.

The defense called its first witness, T.L., R.L.’s 13 year old sister. T.L. testified that the officers came to her Aunt Crystal’s house on Mandeville Street and N. Derbigny Street, and that her bother R.L. was sitting on the porch. She testified that an officer pointed a finger at R.L. and told him to “come here.” The officer, according to T.L., began searching R.L., found something and put him in handcuffs. She also testified that her mother was on the scene but that the officers did not listen to her mother. On cross-examination, T.L. testified that her mother was not around at the time of her brother’s arrest. She testified that her mother was coming out of the grocery store, “11 between 12” o’clock (12:00 midnight). Her mother had been inside the store “getting her something to eat.” When her mother 16saw the police, the gun had already been discovered, and R.L. was handcuffed. T.L.’s mother allegedly instructed her to call her aunt and uncle, “Patricia and Trent.”

The defense called its second witness, Trent Gibson, R.L.’s uncle. Mr. Gibson testified that R.L. had lived with him since he was two weeks old. He said that on the night R.L. was arrested, “he (R.L.) was by his aunt’s house on Mandeville.” He was not at the scene when R.L. was arrested. On cross-examination, Mr. Gibson testified that he arrived on the scene after R.L. had been arrested. He stated that one of the senior offices pulled him aside and told him that R.L. had been found with a gun.

The testimony elicited from Officer Wiltz establishes that R.L. was irrefutably in violation of the City’s juvenile curfew ordinance. Specifically, R.L., a known juvenile, was out in the street after 10:00 p.m., in a high crime area and not in the company of an adult guardian. A situation that is necessarily dangerous for the juvenile and the impetus for the curfew ordinance. Immediately following his detention for the juvenile curfew violation, and pursuant to NOPD policy, R.L. was not placed in handcuffs. It was only after a security pat down was conducted, which is also NOPD policy, that the loaded gun was discovered in his waistband. R.L. was then handcuffed and placed in the police vehicle. As his young sister T.L. testified, it was only after the gun was discovered and R.L. was under arrest that his mother allegedly arrived on the scene.

Based on the record, T.L.’s testimony contained numerous irrelevancies and inconsistencies. There is no other corroborating testimony that R.L. was on his Aunt Crystal’s porch when he was allegedly summoned by Officer Wiltz and 17ultimately arrested. The trial court clearly found the testimony of Officer Wiltz to be more credible.

Mr. Gibson testified that R.L. lived with him since he was a baby. But, he could only testify as to where he believed R.L. to be on the night he was arrested as he only arrived on the scene after the arrest had happened.

In denying R.L.’s motion to suppress the evidence and in finding R.L. guilty as charged, the juvenile court clearly accepted the testimony of the State’s witnesses over the defense witnesses Based on the record before us, we conclude that the juvenile court, as a rational trier of fact, found after examining both the facts and law that the essential elements of the charged offense was proven beyond a reasonable doubt. We cannot conclude that this decision was manifestly erroneous or clearly wrong.

Accordingly, we affirm the juvenile court’s judgment denying R.L.’s motion to suppress the evidence and adjudicating R.L. delinquent.

AFFIRMED

      . Section 54-414 of the Municipal Code of the City of New Orleans.


author: ROSEMARY LEDET, Judge.

text:
    Scott G. VINCENT v. Janet P. VINCENT.
    No. 2011-CA-1822.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 30, 2012.

      Nancy K. Durant, Metairie, LA, for Plaintiff/Appellee.
    Rita K. Akehurst, II, Sugar Land, TX, for Defendant/Appellant.
    (Court composed of Judge TERRI F. LOVE, Judge DANIEL L. DYSART, Judge ROSEMARY LEDET).
   ROSEMARY LEDET, Judge.

| ,This is a post-divorce matter. This is the third appeal in this case. Vincent v. Vincent, 05-1175 (La.App. 4 Cir. 1/10/07), 949 So.2d 535 (“Vincent /”); Vincent v. Vincent, 10-0539 (La.App. 4 Cir. 10/13/10) (unpub.) (“Vincent II ”). Defendant, Janet P. Vincent (“Ms. Vincent”), appeals the trial court’s judgment granting Scott G. Vincent’s (“Mr. Vincent”) motion for entry of final judgment, sustaining his exception of no cause of action and dismissing with prejudice Ms. Vincent’s amended motion to extend final spousal support for life. For reasons set forth below, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The parties were divorced December 21, 2004. The trial court noted in its April 2005 reasons for judgment that at the time of the divorce “Ms. Vincent had a debilitating illness, and a serious head-on automobile collision which compounded her health problems.” The trial court awarded Ms. Vincent final spousal support in the amount of $7,275.20 per month for a period of five years from the date of divorce. In its reasons for judgment, the trial court noted that “[a] great part of the | ¡.award for final support consists of Mrs. Vincent’s monthly medical bills. If Mrs. Vincent is eligible for Medicare, and the benefit can be applied to her medical treatments, then this Court will be willing to entertain a subsequent motion to modify the award for final support at that time.”

Mr. Vincent filed a timely appeal of the trial court’s judgment of spousal support. In Vincent 1, this Court reduced the monthly spousal support award to $3,000, but maintained the five-year time period. The five-year obligation to pay final spousal support expired in December 2009.

On April 14, 2009, Ms. Vincent filed a motion to extend final spousal support for the duration of her life. Ms. Vincent asserted in her motion that her disability resulting from brain surgery, which she underwent several years before the divorce, continued to prevent her from working; therefore, she asserted that the support award should continue in effect for the remainder of her life. In response, Mr. Vincent, on May 6, 2009, filed exceptions of lack of subject matter jurisdiction, no cause of action, res judicata, prematurity, and prescription.

On December 10, 2009, the trial court rendered judgment denying Ms. Vincent’s motion to extend spousal support; granting Mr. Vincent’s exceptions of no cause of action and prematurity; and denying Mr. Vincent’s exceptions of res judicata, lack of subject matter jurisdiction and prescription. On Ms. Vincent’s appeal this Court in Vincent II found that the trial court properly granted the exception of no cause of action. However, because Ms. Vincent asserted that she was able to provide factual support for her allegation that her circumstances have |smaterially changed, this Court remanded the matter to the trial court to allow her to amend her motion pursuant to La. C.C.P. art. 934.

On November 19, 2010, Ms. Vincent filed an amended motion to extend final spousal support. The amended motion added the following seven allegations: 1) since the time the trial court initially awarded final spousal support, Ms. Vincent’s medical condition had worsened; 2) she is now unable to care for herself on a day-to-day basis; 3) she is unable to prepare meals for herself; 4) she is unable to drive; 5) she requires daily care in her home; 6) she is unable to live by herself; and 7) she incurs short term memory loss.

In response, on January 21, 2011, Mr. Vincent filed exceptions of lack of subject matter jurisdiction, no cause of action, res judicata, vagueness and prescription. The vagueness exception was based on the assertion that Ms. Vincent failed to specify the parties’ current financial condition. The no cause of action exception was based on the assertion that Ms. Vincent failed to allege a material change in circumstances.

On March 30, 2011, the trial court rendered judgment denying Mr. Vincent’s exceptions of res judicata, lack of subject matter jurisdiction, and prescription, but granting his exception of vagueness. In its reasons for judgment, the trial court explained that although Ms. Vincent alleges a worsening of her condition she has failed to allege with particularity how her condition had deteriorated and how the progression of her condition has affected her financially in accordance with La. R.S. 9:311. The court cited Guillory v. Guillory, 09-988 (La.App. 3 Cir. 2/3/10), |429 So.3d 1288, in which “an award of final support was extended based upon a finding of plaintiffs worsening health condition and her increased medical expenses.” The trial court ordered Ms. Vincent to cure her defective pleading within thirty days of the signing of judgment. The trial court deferred ruling on the Mr. Vincent’s exception of no cause of action.

Ms. Vincent did not amend her motion as ordered by the trial court. Ms. Vincent asserts that she believed that an amendment was unnecessary and would trigger Mr. Vincent to file a third set of exceptions. Instead, on May 2, 2011, Ms. Vincent filed a motion to file writ from the trial court’s ruling granting the exception of vagueness. On May 6, 2011, Mr. Vincent filed a motion for entry of final judgment to dismiss Ms. Vincent’s amended motion to extend final spousal support for life. He sought the entry of judgment based on Ms. Vincent’s failure to comply with the trial court’s March 30, 2011 judgment, which required she file a supplemental amended motion to extend final support for life. The trial court initially set Mr. Vincent’s motion for hearing on August 4, 2011.

Ms. Vincent subsequently filed in the trial court a motion to stay proceedings due to her alleged pending writ seeking review of the trial court’s March 30, 2011 judgment. On August 2, 2011, the trial court granted Ms. Vincent’s ex parte motion for stay “until the Court of Appeals makes a ruling on the Writ Application filed by Janet Vincent on May 2, 2011.”

On August 3, 2011, Mr. Vincent filed an objection to granting the motion to stay and request for reconsideration. Mr. Vincent’s motion noted that Ms. Vincent, | scontrary to her representation, had not filed an application for supervisory writ with this court. The trial court vacated its stay and set an expedited hearing on Mr. Vincent’s motion for entry of final judgment for August 17, 2011.

On August 12, 2011, Ms. Vincent filed her application for supervisory writ seeking review of the trial court’s March 30, 2011 judgment. This Court issued an order requiring Ms. Vincent show cause why her writ should not be dismissed as untimely. Instead, on August 18, 2011 (after the trial court’s ruling at issue on appeal) she filed a request to withdraw her writ application. By order dated August 24, 2011, this Court granted that request.

The motion for entry for final judgment was heard by the trial court on August 17, 2011. However, neither Ms. Vincent nor her counsel appeared. Mr. Vincent’s counsel filed into the record a certificate of service of his motion. His counsel explained in open court that his motion was sent via facsimile transmission and certified mail to Ms. Vincent through her attorney of record. After making an apparent determination that Ms. Vincent was properly served, the trial court moved forward with the hearing and granted Mr. Vincent’s motion for entry of final judgment. The trial court also sustained Mr. Vincent’s exception of no cause of action, rejecting and dismissing the amended motion to extend final spousal support for life filed by Ms. Vincent. Mr. Vincent was also awarded $241.00 in costs and $1000.00 in attorney’s fees.

This appeal followed. Although Ms. Vincent argues on appeal that the trial court erred in sustaining Mr. Vincent’s exception of vagueness, this Court granted [fiMr. Vincent’s motion to limit the scope of this appeal to the review of the trial court’s August 17, 2011 judgment. Therefore, the trial court’s March 30, 2011 ruling sustaining Mr. Vincent’s exception of vagueness is not before us. As to the trial court’s August 17, 2011 judgment, Ms. Vincent raises two issues: 1) whether Ms. Vincent was not timely served; and 2) whether the trial court erred in granting Mr. Vincent’s exception of no cause of action. Answering the appeal, Mr. Vincent asserts that the trial court erred in denying his exception of res judicata; and he also requests frivolous appeal damages, including attorney’s fees.

STANDARD OF REVIEW

The principal issue on appeal is whether the trial court erred in granting the motion for entry of final judgment and sustaining the exception of no cause of action, thereby dismissing the amended motion to extend final spousal support for life with prejudice. In addressing this issue, the following three-tiered standard of review applies:

First, we must determine whether the trial judge correctly applied the proper legal standard or standards. We do not defer to the discretion or judgment of the trial judge on issues of law. Second, we must examine the trial judge’s findings of fact. We will not overturn the trial judge’s factual determinations unless, in light of the record taken as a whole, they are manifestly erroneous (or clearly wrong). Third, we must examine the propriety of the alimony award. If it is within legal limits and based on facts supported by the record, we will not alter the amount of the award in the absence of an abuse of the trial judge’s great discretion to set such awards.

Williams v. Poore, 10-1087, p. 8 (La.App. 4 Cir. 1/12/11), 55 So.3d 953, 958 (citing Baggett v. Baggett, 96-453, p. 4 (La.App. 3 Cir. 4/23/97), 693 So.2d 264, 266-67 (quoting Davy v. Davy, 469 So.2d 481, 482 (La.App. 3 Cir.1985)).

17A trial court’s decision granting an exception of no cause of action is reviewed de novo “because the exception raises a question of law and the lower court’s decision is based only on the sufficiency of the petition.” Southern Tool & Supply, Inc. v. Beerman Precision, Inc., 03-0960, p. 6 (La.App. 4 Cir. 11/26/03), 862 So.2d 271, 277 (quoting City of New Orleans v. Board of Comm’rs of Orleans Levee Dist., 93-0690, p. 28 (La.7/5/94), 640 So.2d 237, 253). No evidence can be introduced to support or to controvert an exception of no cause of action. Id.; La. C.C.P. art. 931. We are confined to the factual allegations in the petition, which we must accept as true, to determine whether the plaintiff is legally entitled to the relief sought. Id. (citing Everything on Wheels Subaru, Inc. v. Subaru South, Inc., 616 So.2d 1234, 1235 (La.1993).

A defendant’s peremptory exception of no cause of action is designed to test the legal sufficiency of the plaintiffs petition. Id. Louisiana has a system of fact pleading, and “[t]he mere conclusion of the pleader unsupported by facts does not set forth a cause or right of action.” Id. (quoting Montalvo v. Sondes, 93-2813, p. 6 (La.5/23/94), 637 So.2d 127, 131). It is insufficient to state a cause of action where the petition simply states legal or factual conclusions without setting forth facts that support the conclusions. Bibbins v. City of New Orleans, 2002-1510, p. 5 (La.App. 4th Cir. 5/21/03), 848 So.2d 686, 691.

DISCUSSION

Res Judicata

|8As a preliminary matter, we will address Mr. Vincent’s answer to the instant appeal in which he asserts that the trial court erred in failing to sustain his exception of res judicata. Mr. Vincent notes that Ms. Vincent cites to the Guillory, supra, case for two legal propositions: 1) an award of final spousal support set for a fixed term may be extended; and 2) an initial award of support for a fixed term is not res judicata and thus does not bar the receiving spouse form seeking a modification of the support award.

In Guillory, Ms. Guillory filed a rule to show cause why her final spousal support award should not be continued based on her worsening health condition and increased medical expenses. Guillory, 09-988 at p. 1, 29 So.3d at 1289. In opposition, Mr. Guillory filed exceptions of res judicata and no cause of action. Id. The trial court dismissed the exceptions and granted Ms. Guillory an additional six months of spousal support. Guillory, 09-988 at p. 1, 29 So.3d at 1289-90. Alleging a change in circumstances, Ms. Guillory again filed a motion to continue spousal support. Guillory, 09-988 at p. 1, 29 So.3d at 1290. She asserted that her medical expenses had increased and she suffered from a broken hip, which prevented her from working. Id. Mr. Guillory again responded with exceptions of res judicata and no cause of action. Id. The trial court granted the exceptions. Id. On appeal, as it relates to the exception of res judicata, the Third Circuit held that Ms. Guillory’s alleged change in circumstances were not previously litigated and that the exception was improperly granted by the trial court. Guillory, 09-988 at p. 6, 29 So.3d at 1292.

l<)Mr. Vincent distinguishes Guillory from the instant case. He asserts that in Guillory the court held that an award of rehabilitative alimony may be extended when the receiving spouse fails to sustain self-sufficiency within the time period allotted for support in the judgment. He contends that in the present case the award of spousal support was not rehabilitative in nature.

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 pursuant to La. C.C. 114. The court in Guillory cites to comment (b) to Article 114, which states:

The recipient of a rehabilitative or other fixed-duration periodic award may also seek to have it modified or extended under this Article.... The court should make the determination whether periodic support will be modified or terminated based on the changed circumstances of either party.

Guillory, 09-988 at p. 4, 29 So.3d at 1291 (Emphasis added). Both rehabilitative and other fixed-duration periodic awards may be subject to modification or extension upon a showing of a change in circumstances of either party. Therefore, the determination of whether the spousal support in the instant case is rehabilitative alimony is not dispositive of whether it can be modified or extended.

Mr. Vincent also argues that the Guillo-ry case does not benefit Ms. Vincent in the instant case because the issue of duration of the support award was not litigated in Guillory; whereas the duration of the support award in this case was contested by the parties and litigated in both the trial court and this court. The 110doctrine of res judicata is codified in La. R.S. 13:4231, which provides in pertinent part:

Except as otherwise provided by law, a valid and final judgment is conclusive between the same parties, except on appeal or other direct review, to the following extent:
(3) A judgment in favor of either the plaintiff or the defendant is conclusive, in any subsequent action between them, with respect to any issue actually litigated and determined if its determination was essential to that judgment.

Id. (citing La. R.S. 13:4231)

An exception to the doctrine of res judicata in divorce actions is provided in La. R.S. 13:4232, which states that in a divorce action, “the judgment has the effect of res judicata only as to causes of action actually adjudicated.” Under this exception, only matters “actually litigated and finally adjudged may not be contradicted later.” Ebey v. Harvill, 26,373, p. 2 (La.App. 2 Cir. 12/7/94), 647 So.2d 461, 463 (quoting Sewell v. Argonaut Southwest Ins. Co., 362 So.2d 758 (La.1978)).

In Guillory, the court specifically stated that a subsequent action for modification of spousal support in itself is not precluded under the doctrine of res judicata. Guil-lory, 09-988 at p. 5, 29 So.3d at 1292. As it applies to the facts in Guillory, La. R.S. 13:4232(B) would preclude Ms. Guillory from seeking to modify the spousal support judgment if the same grounds are urged in the first motion to continue spousal support, which was adjudicated in the trial court. Id. The court in Guillory stated, “because of the alleged change in factual | j i circumstances [asserted in the second motion to continue], the cause of action now asserted by Ms. Guillory has not previously been adjudicated.” Id.

Similar to Guillory, in the instant case, Ms. Vincent’s claims fall outside the scope of res judicata because of the alleged change in circumstances asserted in her amended motion to extend spousal support. This Court stated in Vincent II that in Ms. Vincent’s motion to extend the support award, she “asserts that her medical condition ‘has not improved’ and that she ‘remains unable to work.’ She does not allege a change in circumstances; she simply states that her condition remains the same.... ” However, in Ms. Vincent’s amended motion to extend spousal support she asserts seven medical conditions or limitations that she argues are a change in circumstances, some of which were not previously litigated. Accordingly, we find that the exception of res judicata was properly denied by the trial court.

Attorney’s Fees

In Mr. Vincent’s answer he also asserts that the instant appeal is frivolous and seeks frivolous appeal damages, including an award for attorney’s fees. As this court stated in Johnson v. Johnson, 08-0060, pp. 5-6 (La.App. 4 Cir. 5/28/08), 986 so.2d 797, 801:

Appellate courts “shall render any judgment which is just, legal, and proper upon the record on appeal” and “may award damages for frivolous appeal....” La. C.C.P. art. 2164. The statute permitting frivolous appeal damages must be strictly construed in favor of the appellant, as it is penal in nature. Levy v. Levy, 02-0279, pp. 17-18 (La.App. 4 Cir. 10/2/02), 829 So.2d 640, 650. Frivolous appeal damages will be awarded if the appellant is trying to “delay the action” or “if the appealing counsel does not seriously believe the law he or she advocates.” Hester v. Hester, 97-2009, p. 5 (La.App. 4 Cir. 6/3/98), 715 So.2d 43, 46. An appeal may also be deemed frivolous if it does not present a “substantial legal question.” Tillmon v. Thrasher |12 Waterproofing, 00-0395, p. 8 (La.App. 4 Cir. 3/28/01), 786 So.2d 131, 137. “Appeals are always favored and, unless the appeal is unquestionably frivolous, damages will not be granted” due in part to the possible chilling effect bn the appellate process. Tillmon, 00-0395, p. 8, 786 So.2d at 137.

After a review of the record, we cannot conclude that the appeal was taken solely for delay or that Ms. Vincent did not seriously believe she was entitled to relief. Therefore, we decline to award damages for frivolous appeal.

Timely Service

Ms. Vincent’s first issue presented on appeal is that Mr. Vincent was wrongfully granted a final judgment for two reasons: 1) the stay order was improperly lifted and 2) she was not timely served.

Ms. Vincent cites to Louisiana District Court Rule 9.8(b), which states in pertinent part that no hearing on an exception or motion will be scheduled until at least fifteen calendar days after filing. Ms. Vincent argues that since Mr. Vincent’s motion for entry of final judgment was filed on August 3, 2011 and heard on August 17, 2011, the District Court Rule 9.8(b) was violated. Ms. Vincent further notes that District Court Rule 9.9(a) states that when a party files a motion, the supporting memorandum shall be served on all other parties so that it is received at least fifteen calendar days before the hearing, unless the court sets a shorter time. Ms. Vincent asserts that she was not served until two days before the hearing.

Local rules of court are intended solely to aid in the orderly and efficient conduct of litigation and are not to be construed so literally as to defeat their intended purpose. At Your Service Enterprises, Inc. v. Swope, 07-1620, p. 5 (La.App. 4 Cir. 1/14/09), 4 So.3d 138, 141. Further, the trial court has great discretion |isin the construction, interpretation, application and enforcement of its own rules. Id.

Ms. Vincent’s argument regarding lack of proper service hinges on whether she was granted a fair opportunity to present her case before a judgment was rendered against her in her absence.

Adequate notice is one of the most elementary requirements of procedural due process. Edwards v. Edwards, 614 So.2d 725, 727 (La.App. 5th Cir.1993). Adequate notice given must be 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 objections. Nelson v. Nelson, 42,697, p. 4 (La.App. 2 Cir. 12/05/07), 973 So.2d 148, 151 (citing Armstrong v. Manzo, 380 U.S. 545, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965)).

Mr. Vincent’s motion for entry of final judgment was initially filed May 6, 2011, and set for hearing on August 4, 2011. The matter was not stayed until August 2, 2011. Additionally, the request for reconsideration of granting motion to stay and motion to continue was filed August 3, 2011. On the same day, the trial court vacated the stay and continued the motion for entry of final judgment to August 17, 2011.

Mr. Vincent’s counsel explained in open court at the hearing on August 17, 2011, and submitted in a certificate of service filed in the record the manner in 114which Ms. Vincent was notified of the hearing. Mr. Vincent’s objection to granting motion to stay, reply memorandum in response to motion to stay, request for reconsideration of granting motion to stay and motion to continue was successfully sent to Ms. Vincent’s attorney of record on August 5, 2011, by facsimile transmission. The motion was also sent by certified mail on August 5, 2011. There was an attempted delivery on August 8, 2011; however, it was not actually delivered until August 15, 2011. Ms. Vincent’s counsel sent a letter to Mr. Vincent’s counsel on August 16, 2011, indicating that since service was not timely, she would not be appearing in court.

Although proper service was not effectuated pursuant to La. C.C.P. art. 1313 until August 15, 2011, Ms. Vincent had adequate notice of the August 17, 2011 hearing. Ms. Vincent was notified of the continued date for the hearing on August 5, 2011 by facsimile transmission; attached to Mr. Vincent’s certified of service was the fax confirmation sheet. Further, Ms. Vincent’s attorney’s knowledge of the hearing is noted by her on the intake form submitted to this court with her writ application filed August 12, 2011. In response to the inquiry regarding the present status of the case, Ms. Vincent’s attorney states that there is a hearing set August 17, 2011.

Given the circumstances of this case, we find that adequate notice was given reasonably calculated to apprise Ms. Vincent of the hearing of the motion and to afford her an opportunity to present her objections before a judgment was rendered against her. After ensuring that adequate notice and service of the motion had been |15made on Ms. Vincent’s attorney, the trial judge did not err in moving forward with the hearing, ultimately granting the motion of entry of final judgment and exception of no cause of action thereby dismissing Ms. Vincent’s amended motion to extend final spousal support for life.

Exception of No Cause of Action

Ms. Vincent’s second issue presented on appeal is whether the trial court erred in granting Mr. Vincent’s motion for entry of final judgment and sustaining his exception of no cause of action, which dismissed her amended motion to extend final spousal support for life with prejudice.

As explained earlier in this opinion, an award of periodic support may be modified by a district court if the circumstances of either party materially change and shall be terminated if it has become unnecessary. La. C.C. art. 114. An award of alimony is never final. Guil-lory, 09-988 at p. 2, 29 So.3d 1288 at 1290. The party seeking the modification of support carries the burden of proof that a modification is warranted. Id. The applicable burden of proof is governed by La. R.S. 9:311(A)(1), which provides that “[a]n award for support shall not be modified unless the party seeking the .modification shows a material change in circumstances of one of the parties between the time of the previous award and the time of the rule for modification of the award.” Hebert v. Hebert, 06-1315, p. 3 (La.App. 3 Cir. 2/7/07), 948 So.2d 1239, 1241 (quoting La. R.S. 9:311(A)(1)). The moving party must show either a change in the obligee’s needs or the obligor’s ability to pay. Poore, 10-1087 at p. 10, 55 So.3d at 959.

hJn this case, Ms. Vincent argues that she has shown a material change in circumstances by listing specific medical conditions and limitations in her November 19, 2010 amended motion. However, establishing a change in circumstances does not automatically mandate a modification or termination of support. Id. (citing Mizell v. Mizell, 40,601, p. 3 (La.App. 2 Cir. 1/25/06), 920 So.2d 927, 929). Such a factual finding does, simply shifts the burden to the party opposing the modification. Id.

In response to Ms. Vincent’s amended motion, Mr. Vincent argued to the trial court that the medical conditions and limitations complained of existed at the time of the trial when the initial award of spousal support was issued. Mr. Vincent notes that the record is insufficient to establish Ms. Vincent’s exact medical condition at the time of trial because there was no expert medical testimony or report to establish Ms. Vincent’s condition. Mr. Vincent asserts that Ms. Vincent relied on documentation from the Social Security Administration, her own testimony, and testimony of her family members as to the status of her medical condition.

Ms. Vincent’s initial motion to extend spousal support states that her medical condition has not improved and she remains unable to work in order to support herself. Ms. Vincent also notes that although there was testimony that she was disabled at the initial trial, she still had the ability to work. Specifically, she notes that at the time of that trial she was working in Mr. Vincent’s office. However, Mr. Vincent asserts that Ms. Vincent had not worked in over ten years 117before the trial, with the exception of part-time work in his office, which the court considered to be sheltered employment.

Regarding Ms. Vincent’s assertion that she is now unable to work, this Court in Williams v. Williams, 97-2245, (La. App. 4 Cir. 4/11/01), 803 So.2d 50, 54, stated that “a person’s own self-serving testimony regarding his or her ability to work is insufficient proof of the inability.” In order to prove the disability by a preponderance of the evidence, the spouse claiming such an inability to work must present corroborating evidence, such as a doctor’s report or a doctor’s expert testimony. Id. This Court further noted that “[ejxcept perhaps in a case where the spouse’s obvious mental or physical disability renders that spouse impaired, a trial court abuses its discretion in finding that a spouse is unable to work on the basis of that spouse’s own self-serving testimony alone.” Id. In this case, there were no medical expert reports or testimony offered as to Ms. Vincent’s inability to work at either the initial trial at which the initial spousal support was awarded or in support of her amended motion to extend spousal support for life.

In Ms. Vincent’s amended motion she asserts that she now is unable to care for herself on a day-to-day basis, live by herself or care for her home. Ms. Vincent admits that allegations of her inability to care for her home or live alone were not addressed at the initial trial. However, Mr. Vincent also points out that there was evidence presented at the initial trial that Ms. Vincent was permanently and totally disabled and cites to testimony that Ms. Vincent was assisted by family and friends with errands to support her household and office.

|1sMs. Vincent also asserts that she is now unable to prepare meals; whereas at the time of the initial trial she was able to cook for herself. However, Mr. Vincent argues that at trial there was testimony that they ate out five to six times a week and when Ms. Vincent did prepare meals it was in a limited manner with the assistance of others.

Ms. Vincent also asserts in her amended motion that she is unable to drive and experiences short term memory loss. Both parties agree that both issues existed at the time of the initial trial, although Ms. Vincent asserts that her memory loss is more frequent and severe. However, she offers no medical evidence in support of this claim.

As noted, the trial court determined that Ms. Vincent failed to allege with particularity how her condition had deteriorated between the time of trial and the filing of her motion and how the progression of her condition had affected her financially. Due to the lack of evidence presented that there was a material change in her medical condition, the trial court ordered her to amend her pleadings to show that there is a material change in financial circumstances. Ms. Vincent never amended her pleadings, rather she argued that she was not required to show a financial change in circumstances.

There is no bright line rule showing what constitutes a change in circumstances to warrant modification. Guinther v. Baird, 33,550, p. 5 (La.App. 2 Cir. 10/6/00), 768 So.2d 847, 850. A trial court’s determination of whether a change in circumstances has been demonstrated is entitled to great deference on |19review. Hebert v. Hebert, 06-1315, p. 3 (La.App. 3 Cir. 2/7/07), 948 So.2d 1239. A resulting award will not be disturbed absent an abuse in discretion. Id.

To determine whether an award for periodic support will be modified or terminated based on the changed circumstances of either party, the trial court should consider the relevant factors listed in La. C.C. art. 112. Poore, 10-1087 at p. 11, 55 So.3d at 959. The Article 112 factors considered by the courts in awarding and modifying final spousal support may include:

1. The income and means of the parties, including the liquidity of such means.
2. The financial obligations of the parties.
3. The earning capacity of the parties.
4. The effect of custody of children upon a party’s earning capacity.
5. The time necessary for the claimant to acquire appropriate education, training, or employment.
6. The health and age of the parties.
7. The duration of the marriage.
8. The tax consequences to either or both parties.

Poore, 10-1087 at p. 11, 55 So.3d at 959-60; La. C.C. art. 112 (Emphasis added). Several of the Article 112 factors warrant that a court consider the financial ability and need of the parties as relevant factors when determining an award or modifying an award for final spousal support. Mi-zell, 40,601 at p. 11-10, 920 So.2d at 932-33. In fact, all relevant factors are to be considered, and the court is not limited to those specifically listed in the code article. Patton, 856 So.2d at 59.

|2(|In this case, Ms. Vincent argues to the trial court that there was a material change in circumstances regarding her medical condition and limitations. However, the trial court did not find a material deterioration in her condition. The trial court allowed Ms. Vincent an opportunity to amend her pleadings to show how the progression of her condition has affected her financially. Ms. Vincent never amended her motion as ordered by the court. Based on the Article 112 factors and Louisiana case law, the trial court was within its discretion to consider the parties’ financial condition in determining whether there was a material change in circumstances to modify an award of spousal support.

We agree with the trial court that Ms. Vincent has not met her burden in establishing a material change in circumstances regarding her medical condition and limitations between the awarding of the initial spousal support and the filing of the rule for modification of the award as required by La. R.S. 9:311 and La. C.C. 114. Further there was no showing of a financial material change in circumstances. Thus, we find that the trial court did not error by granting the final judgment and exception of no cause of action, which dismissed Ms. Vincent’s amended motion to extend final spousal support for life with prejudice.

DECREE

For the foregoing reasons, we affirm the trial court’s judgment granting the motion for entry of final judgment and sustaining the exception of no cause of |⅞, action filed on behalf of Mr. Vincent, rejecting and dismissing Ms. Vincent’s amended motion to extend final spousal support for life with prejudice.

AFFIRMED

      . See also Louisiana District Court Rule 1.4 which provides:
      An individual judge may, in the interest of justice and upon notice to all parties, permit deviations from these Rules in a particular proceeding. Any such deviation shall be noted on the record in open court in the presence of all parties or by written order filed into the record of the proceedings and mailed to all parties or their counsel of record.

      . See also Patton v. Patton, 37,401, p. 3 (La.App. 2 Cir. 9/24/03), 856 So.2d 56, 59 "The relative financial positions of the parties ... can be relevant factors”; Twichell v. Twichell, 00-1248, p. 4 (La.App. 5 Cir. 11/28/00), 772 So.2d 956, 959 “The party requesting the reduction bears the burden of proof to demonstrate a change in the financial condition of either himself or his wife”; Dauphine v. Dau-phine, 511 So.2d 53, 56 (La.App. 3rd Cir. 1987) "The principal factor to be considered in determining a spouse’s entitlement to permanent alimony is the relative financial positions of the parties. A spouse who seeks the modification of an alimony award bears the burden of showing that there has been a substantial change in circumstances of one, or both, of the parties.”


text:
    Jill E. BROWN, Wife of/and Claud T. Brown v. ANPAC LOUISIANA INSURANCE COMPANY.
    No. 2011-CA-1576.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 30, 2012.

      Richard H. Barker, IV, A Professional Law Corporation, New Orleans, LA, for Plaintiff/Appellant, Claud T. Brown.
    Robert C. Lehman, A Professional Law Corporation, Mandeville, LA, In Proper Person/Appellee.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge MAX N. TOBIAS, JR., Judge MADELEINE M. LANDRIEU).
   MADELEINE M. LANDRIEU, Judge.

The plaintiffs, Jill and Claud Brown, appeal the trial court’s judgment awarding attorney’s fees to their former counsel, Robert Lehman. For the reasons that follow, we reverse.

FACTS AND PROCEEDINGS BELOW

On August 28, 2007, Mr. Lehman filed a petition on behalf of the plaintiffs against their insurer, ANPAC Louisiana Insurance Company, alleging that ANPAC had failed to fairly adjust and timely pay the Browns’ claim for Hurricane Katrina damage to their property. Subsequently, Mr. Lehman filed a “Motion to Withdraw as Counsel of Record,” asserting that the Brown’s had terminated his representation of them in March, 2009, after his repeated attempts to obtain information from them for purposes of responding to discovery had been unsuccessful. The trial court signed an order permitting Mr. Lehman to withdraw on July 28, 2009. On April 8, 2010, Mr. Lehman filed a “Motion to Set Fees” asserting that the Browns had set-tied their claim against ANPAC and that settlement proceeds had been tendered to them, but there existed a dispute between Lthe Browns and Mr. Lehman regarding the amount of legal fees owed to him. In his motion, Mr. Lehman requested a hearing for the purpose of having the trial court set an appropriate legal fee. The record contains no evidence that such a hearing was held. However, on November 29, 2010, Mr. Lehman filed a “Request for Ruling on Motion for Attorney’s Fees” asserting that his motion to set fees had been heard on two separate days in May but had not been ruled upon. Considering this request, the trial court rendered a written judgment on December 17, 2010. That judgment awarded Mr. Lehman $12,300.00 in attorney’s fees and ordered ANPAC to pay that amount, plus all costs incurred in bringing the motion, directly to Mr. Lehman and to pay the remainder of the $41,000.00 settlement directly to the Browns. The Browns have filed a sus-pensive appeal from that judgment.

ISSUES

On appeal, the Browns argue that, subsequent to his withdrawal from the lawsuit, Mr. Lehman had no standing to file a motion to set attorney’s fees without first having filed a petition to intervene. Alternatively, they contend that the trial court erred by awarding Mr. Lehman what amounts to a 30% contingency fee in the absence of a written contingency fee contract.

|sDISCUSSION

We find that the trial court committed legal error by rendering a judgment in favor of Mr. Lehman, a non-party, in the absence of a petition for intervention. Louisiana Code of Civil Procedure article 1091 provides:

A third person having an interest therein may intervene in a pending action to enforce a right related to or connected with the object of the pending action against one or more of the parties thereto by:
(1) Joining with plaintiff in demanding the same or similar relief against the defendant;
(2) Uniting with defendant in resisting the plaintiff’s demand; or
(3) Opposing both plaintiff and defendant.

An intervention is an incidental demand which “shall be commenced by a petition....” La. C.C.P. arts. 1031-1032. The filing of an incidental demand after the answer to the principal demand has been filed requires leave of court. La. C.C.P. art. 1033.

These articles provide the appropriate procedural vehicle by which a party’s former attorney, who has withdrawn from the lawsuit after being discharged by his client, may seek payment of attorney’s fees owed to him for his prior representation. See, e.g.: Robichaux v. Cade, 357 So.2d 849 (La.App. 4th Cir.1978); Harvey v. Cole, 2002-1704 (LaApp. 4 Cir. 4/30/03), 845 So.2d 591. Once an intervention has been filed, the party formerly represented by the intervenor is entitled to a hearing to assert whatever defenses he might have to the attorney’s claim for his fee. Robi-chaux, 357 So.2d at 852. Other than an intervention, we |4have found no procedural device contained in the Code of Civil Procedure that authorizes the trial court to consider an issue brought by a non-party to the -litigation.

In defense of the trial court’s judgment, Mr. Lehman argues that attorneys routinely file motions with respect to issues directly related to them even though they are not parties to the action. This argument ignores the fact that, with the exception of those filing motions to enroll as counsel, these attorneys are still engaged in representing parties to the lawsuit. In the instant case, however, Mr. Lehman had withdrawn from his representation of the plaintiffs. Mr. Lehman has not cited any cases, nor have we found any, in which an attorney who has withdrawn has sought his fee other than by means of filing a petition for intervention.

Moreover, even if we could ignore the procedural infirmity in the trial court’s judgment, we are unable to review the merits of the trial court’s decision regarding Mr. Lehman’s fee in the absence of a transcript of the hearings below, which is not included in the record. Without a transcript, this court is unable to review any evidence, documentary or testimonial, that was considered by the trial court in reaching its decision.

CONCLUSION

Accordingly, we reverse the judgment of the trial court.

REVERSED

      . Mr. Lehman also filed a "Notice of Attorney's Claim for Services Rendered.”

      . This motion was accompanied by a memorandum in support with exhibits. Mr. Lehman represented that ANPAC had tendered a settlement check in the amount of $41,000.00 payable jointly to him and the Browns.

      . The record contains a signed order by the minute clerk setting a hearing for May 21, 2010. In their oral arguments on appeal, the parties represented that they appeared before the trial court on that date for a hearing and were ordered by the trial court to return the following week, on May 27, 2010, at which time they completed the hearing on the issue of attorney’s fees, but the record contains no transcript of either hearing.

      .The trial court noted in the judgment that the structured payment was being ordered to alleviate the necessity of having the disputing parties named as payees on the same check.

      . Nothing prevents an attorney from filing a separate action against his former clients to recover attorney's fees. See, e.g., Gold v. Granger, 2006-859 (La.App. 3 Cir. 12/29/06), 947 So.2d 835. Such was not done in the instant case.