author: PAUL A. BONIN, Judge.

text:
    Michael P. CUSIMANO, Chere M. Theriot, James K. Ozborn, S. James Wallace, Bruce E. Mohat, and Frederick E. Lutz v. PORT ESPLANADE CONDOMINIUM ASSOCIATION, INC., Peter J. Wanek, The Sommers Joint Revocable Trust, Michael S. Sommers, Michael A. Williams, Ulrike M. Lang, Mary F. Berry, Wesley M. Shrum, Jr., Blaine M. McBurney, Kenneth D. Peters, Michael D. Robeson, and Henrietta L. Alves.
    No. 2010-CA-0477.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 12, 2011.

      Harry Rosenberg, Bryan Edward Bow-dler, Phelps Dunbar L.L.P., New Orleans, LA, for Plaintiffs/Appellants.
    James M. Garner, Raymond C. Lewis, Sher Garner Cahill Richter Klein & Hilbert, L.L.C., New Orleans, LA, for Defendant/Appellee, Port Esplanade Condominium Association, Inc.
    (Court composed of Judge EDWIN A. LOMBARD, Judge ROLAND L. BELSOME, Judge PAUL A. BONIN).
   PAUL A. BONIN, Judge.

| ,The immovable property located on the lakeside corner of Dauphine Street and Esplanade Avenue in the French Quarter is subject to a regime established by the Declaration of Condominium for Port Esplanade Condominium Association. The Port Esplanade condominiums include two distinct residential buildings. The plaintiffs and appellants are the current owners of the condo units located in the building facing Dauphine, and for convenience we refer to them as the “Dauphine Owners”. The defendant and appellee is the condominium association, and for convenience we refer to it as the “Association”. The current owners of condo units located in the building facing Esplanade Avenue, whom for convenience we refer to as the “Esplanade Owners”, are no longer party defendants.

|20n July 31, 2002, the Esplanade Owners, or in some cases their predecessors-in-title, adopted a Second Amendment to the original Declaration which purported to transfer the use of certain Common Elements, such as a swimming pool and passageways, to the exclusive use (as Limited Common Elements) of the Esplanade Owners. The Dauphine Owners’ common predecessor-in-title, The Meaghan Frances Hardcastle Trust, which for convenience we will refer to as the Trust, did not join in the adoption of the Second Amendment. Sometime later, however, the Trust transferred its ownership interest in the Dau-phine condo units to Michael Wilkinson, and that transfer was expressly “made, executed and accepted subject to” the publicly recorded Second Amendment.

The Dauphine Owners argue that the Second Amendment is invalid and of no legal effect because such a change in ownership of the Common Elements required the unanimity of all unit owners. The Association argues that the validity of the adoption of the Second Amendment depends upon the agreement of only at least 66.66% of the ownership interests, according to their interpretation of the Declaration’s requirements, and that the vote of 69.96% of the ownership interests exceeded that requirement. Alternatively, if unanimity is required, the Association argues that the Second Amendment was merely a relative nullity when adopted and |sthat the Trust, as the sole owner of the outstanding 30.04% required for unanimity, confirmed the Second Amendment by the terms of its transfer to Mr. Wilkinson.

Both the Dauphine Owners and the Association moved for summary judgment. The district judge granted summary judgment in favor of the Association and dismissed the Dauphine Owners’ lawsuit with prejudice.

Upon our de novo review of the summary judgment, we conclude as a matter of law that the requisite unanimity for the adoption of the Second Amendment was achieved by the Trust’s subsequent confirmation of that amendment in its transfer of its ownership interest to its successor-in-title, Mr. Wilkinson (who is also the Dauphine Owners’ common predecessor-in-title) because as an express condition of that transfer Mr. Wilkinson’s ownership was “made, executed and accepted subject to” the publicly recorded Second Amendment. Accordingly, we affirm the lower court’s dismissal with prejudice of the Dauphine Owners’ lawsuit.

In the Parts which follow we explain our decision in greater detail. In Part I-A we consider the de novo standard of review applicable to summary judgments and in Part I-B we explain why we do not consider materials proffered as evidence in the trial court and which were the object of the Dauphine Owners’ motion to strike. In Part II we consider the legal and conventional requirements for transferring or re-designating Common Elements to Limited Common Elements in a condominium regime in Louisiana. In Part III we address why the Second Amendment is characterized as a relative nullity, not an absolute nullity, and why |4it was confirmed by subsequent action. In Part IV we specifically describe the property with particularity in order to comply with the directive of La. C.C.P. art. 1919.

I

In this Part we first address the standard we employ when considering a trial court’s ruling on summary judgment. We then resolve an incidental evidentiary issue which arose in this matter because the trial judge excluded certain materials from evidence offered by the Association in support of its motion for summary judgment; we also address the standard we employ when considering trial court rulings on evidentiary issues.

A

We review the granting of summary judgment under the de novo standard. Hutchinson v. Knights of Columbus, Council No. 5747, 03-1533, p. 5 (La.2/20/04), 866 So.2d 228, 232, n. 2; Independent Fire Insurance Co. v. Sunbeam Corp., 99-2181, p. 7 (La.2/29/00), 755 So.2d 226, 230. “An appellate court reviews a district court’s decision granting summary judgment de novo, using the same standard applied by the trial court in deciding the motion for summary judgment.” Lingoni v. Hibernia Nat’l Bank, 09-0737, p. 3 (La.App. 4 Cir. 3/3/10), 33 So.3d 372, 375. Because we review the summary judgment de novo, we look at the facts and evidence in the record before us, inspecting it without regard or deference to the judgment of the trial court or its reasons for judgment. While ajjtrial court’s reasoning for granting a summary judgment may well be informative, it is not determinative of the legal issues to be resolved by the appellate court.

B

Before we consider the merits of the Association’s motion for summary judgment, however, we must dispose of a preliminary evidentiary matter concerning whether certain materials proffered by the Association, the party which prevailed in the trial court, may be considered in our review of the summary judgment. See Brungardt v. Summit, 08-0577, p. 12 (La. App. 4 Cir. 4/8/09), 7 So.3d 879, 887. When the trial court refused to admit the materials offered, the Association properly proffered the materials. See La. C.C.P. art. 1636; La. C.E. art. 103 A(2).

Contending that three documents, which were proffered by the Association in the trial court, were not part of the record and therefore should not be reviewed by this court, the Dauphine Owners brought a motion in this court to strike portions of the Association’s brief. The three documents proffered are (1) a letter from Michael Sommers to Stephen Broussard, the attorney for the Trust and the Association, (2) an affidavit of Shaun Rafferty, Michael Sommers’ attorney who in 2001 drafted the Second Amendment defining the Board and dividing it into two ^separate subcommittees to manage the two buildings and establishing that the Esplanade Owners had the exclusive use of the patio and pool, and (3) an affidavit of Mr. Wilkinson.

In response to the motion to strike, the Association has argued only that its counsel proffered the materials, thereby preserving the record for our review of the correctness of the trial court’s exclusion of the materials from evidence; it has not, however, briefed us on what it contends is erroneous regarding the trial court’s ruling. A prevailing party who has properly preserved for our review the excluded evidence through a proffer is not required to appeal or answer the appeal or even seek supervisory review. See La. C.C.P. art. 2133 (providing that the prevailing party “may assert, in support of the judgment, any argument supported by the record, although he has not appealed, answered the appeal, or applied for supervisory writs.”). Preferably the prevailing party will call attention in its brief of the exclusion of the complained-of material and explicitly argue why the trial court erred in excluding the material; the prevailing party should not simply rely upon the excluded materials in its brief to support the judgment as if they had in fact been admitted into evidence.

But the three documents are in the record on appeal. See McLean v. Hunter, 495 So.2d 1298, 1305 (La.10/20/86) (“The very purpose of requiring a proffer is to preserve excluded testimony so that the testimony (whatever its nature) is available for appellate review.”). We review eviden-tiary issues, such as the exclusion from evidence of the proffers in the record below, under the abuse of 17discretion standard of review. See La. C.E. art. 103; Brandt v. Engle, 00-3416, p. 10 (La.6/29/01), 791 So.2d 614, 620.

The trial court deemed Mr. Som-mers’ letter inadmissible because it was not an affidavit, and was not otherwise certified or verified. This ruling is supported by our decisions in King’s Joint Venture v. Marino, 02-0847, p. 5 (LaApp. 4 Cir. 9/25/02), 827 So.2d 521, 524, and Frazier v. Green Steel Building, Inc., 409 So.2d 1290, 1292 (La.App. 4 Cir. 1/25/82). The trial court deemed the affidavits of Mr. Rafferty and Mr. Wilkinson inadmissible under the parol evidence rule. This ruling is supported by La. C.E. art. 602, La. C.C.P. art. 967, and Arkla, Inc. v. Maddox and May Bros. Casing Service, Inc., 624 So.2d 34, 36 (LaApp. 2 Cir. 9/22/93). Accordingly, we conclude that the trial court did not abuse its discretion in excluding the evidence.

The Dauphine Owners contend that the Association improperly referred to these proffered documents in its appeal brief, and that this court should strike portions of the Association’s appeal brief referring to them. The Dauphine Owners cite the first circuit’s holding in Boquet v. SWDI, LLC, 07-0738 (LaApp. 1 Cir. 6/6/08), 992 So.2d 1059. While that case indeed states “it was improper to refer to such evidence in their brief,” the depositions at issue were not proffered in the trial court, and the case is, of course, distinguishable on that account. Boquet, supra, 992 So.2d at 1062. But because the proffered materials are inadmissible, we will not consider them in support of the Association’s argument in this appeal.

II

In this Part we consider the legal and conventional requirements for transferring or re-designating Common Elements to Limited Common Elements in a condominium regime in Louisiana. The Association argues that the re-classification of the pool and passageways from Common Elements to Limited Common Elements was not a change in ownership, but merely a change in use. We disagree.

The rules of contract interpretation apply to the interpretation of a condominium declaration. See Prytania Medical Complex Owners Ass’n v. Mary, 506 So.2d 566, 568 (LaApp. 4 Cir.1987). “When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent.” La. Civ. Code art. 2046. In this matter, the Condominium Declaration provides the controlling provision for the ownership of the Common Elements:

Each Unit Owner shall be entitled to the percentage of ownership in the Common Elements allocated to the respective Unit owned by such Unit Owner, as set forth in the schedule attached hereto as Exhibit “E” and by this reference made a part hereof as though fully set forth herein. The aforesaid percentages of ownership interest has been computed and determined in accordance with the Act,' and shall remain constant unless hereafter changed by recorded Amendment to this Declaration consented to in writing by all Unit Owners. Said ownership interests in the Common Elements shall be undivided interests, and the Common Elements shall be owned by the Unit Owners in accordance with their ^respective percentage of ownership as set forth in Exhibit “E”. The ownership of each Unit and of the Unit Owner’s corresponding percentage of ownership in the Common Elements shall not be separated.
(emphasis added)

In discussing “common elements,” Professor Yiannopolous has written that “[t]he owner of an individual unit has an undivided interest in the common elements, which is a right of co-ownership.” 2 A.N. Yian-nopoulos, Louisiana Civil Law Treatise, § 144, p. 335 (4th ed.2001). Because here, under the pre-amended Declaration, there is no dispute that the pool and passageways are included in the Common Elements, each condo unit owner has an undivided ownership interest in the pool and passageways. “Ownership of the same thing by two or more persons is ownership in indivisión.” La. Civil Code art. 797. See also La. Civil Code art. 480 (“Two or more persons may own the same thing in indivisión, each having an undivided share.”).

“The use and management of the thing held in indivisión is determined by agreement of all the co-owners.” La. Civil Code art. 801 (emphasis added). Moreover, we emphasize the following important provision of La. Civil Code art. 802:

Except as otherwise provided in Article 801, a co-owner is entitled to use the thing held in indivisión according to its destination, but he cannot prevent another co-owner from making such use of it. As against third persons, a co-owner has the right to use and enjoy the thing as if he were the sole owner.

A comparison of the Declaration’s provisions regarding Common Elements and Limited Common Elements leads us to the inescapable conclusion that the Second Amendment’s re-designating the pool and passageways from Common Elements to Limited Common Elements would prevent the Dauphine Owners, as |inco-owners in indivisión, from making use of the pool and passageways. The Declaration sets forth that “Common Elements”

shall mean the portion of the condominium property not a part of the individual Units, and shall include, but shall not be limited to, the Land, foundations, hallways, stairways, entrances and exits, laundry room, storage areas, basement, roof, incinerator, pipes, ducts, electrical wiring and conduits (except pipes, ducts, electrical wiring and conduits situated entirely within a Unit and serving only said Unit), public utility lines, floors, ceilings and perimeter walls of Unit boundaries as shown on the Plat, structural components of the Building, outside walks and patios, landscaping, and all other portions of the Property except the individual Units. Structural components located within the boundaries of a Unit shall be part of the Common Elements.

That definition contrasts with Declaration’s definition for “Limited Common Elements” :

those Common Elements serving exclusively a single Unit or Units, including specifically, but not by way of limitation, balconies, patios, terraces and such portions of the perimeter walls, floors, ceiling, doors, vestibules, windows, entryways, and all associated fixtures and structures therein as lie outside a Unit boundary, but designate other portions of the Common Elements as Limited Common Elements including, but not limited to, rubbish collection areas, and such heating, plumbing and electrical fixtures and all associated pipes, ducts and wiring as may serve exclusively a single Unit or group of contiguous Units, (emphasis added)

Clearly a re-designation of any Common Elements to Limited Common Elements would deprive a co-owner in indivisión of the co-owner’s use of the re-designated Common Elements. But the attempt to accomplish the deprivation without the co-owner’s consent is prohibited.

|nWhen these legal precepts are applied, there can be no question that the Esplanade Owners cannot re-designate Common Elements such as the pool and the passageways as Limited Common Elements and thereby prevent the Dauphine Owners’ use of the pool and passageways unless the Dauphine Owners have agreed to the re-designation. This is specifically required by La. R.S. 9:1122.108 B, which provides in pertinent part:

the percentage of undivided interest of such unit owner in the common elements of the condominium as expressed in the condominium declaration shall be an inseparable component of the ownership of the unit and shall not be altered, without the consent of all the unit owners expressed in an amended condominium declaration duly filed for registry, (emphasis added)

We reject the Association’s argument that the less-than-unanimous consent of all unit owners is sufficient because the percentage of a unit owner’s undivided interest in the Common Elements was not altered although the Common Elements themselves were altered. Transferring the pool and passageways to the exclusive use of the Esplanade Owners would necessarily alter and diminish the undivided ownership interest of the excluded unit owners in them.

We thus conclude that the Declaration itself, our general law on co-ownership, and the particular law governing condominiums all require the unanimous consent of all owners in indivisión (that is all unit owners) in order to re-designate the pool and passageways as Limited Common Elements and exclude the Dauphine Owner’s from the use thereof.

Ill

In this Part we explain our conclusion that the requisite unanimity for the adoption of the Second Amendment was achieved and that the Dauphine Owners can be lawfully excluded from the use of the pool and passageways. We find that 112the Second Amendment to the Declaration is a relative nullity rather than an absolute nullity and, as a relative nullity, it was later confirmed.

La. Civil Code art. 2030 states:

A contract is absolutely null when it violates a rule of public order, as when the object of a contract is illicit or immoral. A contract that is absolutely null may not be confirmed. Absolute nullity may be invoked by any person or may be declared by the court on its own initiative.

We are certain that what the Second Amendment purports to accomplish (the alienation of an undivided interest in immovable property) does not violate “a rule of public order.” The object of the contract is surely not illicit or immoral. The Second Amendment is not an absolute nullity.

Thus we turn to La. Civil Code art. 2031, which states:

A contract is relatively null when it violates a rule intended for the protection of private parties, as when a party lacked capacity or did not give free consent at the time the contract was made. A contract that is only relatively null may be confirmed.
Relative nullity may be invoked only by those persons for whose interest the ground for nullity was established, and may not be declared by the court on its own initiative.

The Second Amendment is relatively null because it violates an important rule intended for the protection of a private party, which in this case is any co-owner whose consent was required in order to effect the alienation of his ownership interest. At the time of the adoption of the Second Amendment and its recordation that co-owner was the Trust. There can be no doubt, for example, that the Trust could have urged the nullity of the Second Amendment and caused its cancellation from the public records. See La. Civil Code art. 2033 (“An absolutely null 11scontract, or a relatively null contract that has been declared null by the court, is deemed never to have existed.”). But the Trust took no such action.

Because the Second Amendment is only relatively null, the Trust could confirm it.And the confirmation can occur either expressly or tacitly. La. Civil Code art. 1842 provides:

Confirmation is a declaration whereby a person cures the relative nullity of an obligation.
An express act of confirmation must contain or identify the substance of the obligation and evidence the intention to cure its relative nullity.
Tacit confirmation may result from voluntary performance of the obligation.

In Meaghan Frances Hardcastle Trust v. Fleur de Paris, Ltd., 04-1371, p. 4 (La. App. 4 Cir. 6/29/05), 917 So.2d 448, 450-51, in which a lease agreement was at issue but the parties paid and accepted monthly rent, we confirmed a relatively null contract. We stated:

Confirmation of a contract, as referred to in Article 2031 ... involves making the contract valid by formal assent. That assent can be evidenced through the typical actions signifying ratification of a defective contract ... While no clear definition exists in the statutes or case law as to what confirmation acts validate a relatively null contract, jurisprudence makes it clear that acts sufficient to ratify a contract will act as confirmation of the contract. Confirmation and ratification are used almost interchangeably, or as non-exclusive actions. When a contract is ratified through the subsequent actions of the parties, that contract is confirmed by that ratification, [citations omitted] ... [T]his Court agrees with the district court’s finding that “the subsequent actions of both the lessor and the lessee, that is, and its successors, ... The parties have ratified it by the acceptance of rent payments with regard to the lease.”

When the Trust sold its undivided interest in the Dauphine condo units to Mr. Wilkinson, it expressly recited that the sale was “made, executed and accepted subject to” the Second Amendment, which was already publicly recorded. By the “accepted subject to” condition of the sale, the Trust assented to the Second Amendment. That assent sufficed to constitute the requisite unanimous consent. The deficiency that had theretofore existed was overcome or supplied by the Trust’s assent to and confirmation of the Second Amendment. Consequently, Mr. Wilkinson, and all of his successors-in-title such as the Dauphine Owners, are bound by the confirmed Second Amendment.

We have previously addressed the binding effect of the express inclusion of “subject to” language in an act of sale. In Eastover Property Owner’s Association, Inc. v. Cochrane, we described a property owner’s obligation to pay dues and assessments to a property owners’ association when “[t]he act of sale for this lot reflected that the sale was made and accepted subject to a number of conditions, which indicated that the purchasers accepted the purchase of the lot subject to the Eastover act of restriction....” Eastover Property Owner’s Ass’n., Inc. v. Cochrane, 02-1502, p. 2 (La.App. 4 Cir. 5/21/03), 848 So.2d 710, 711 (emphasis added).

The first circuit considered the consequences of express language of this sort in discussing a building restriction under which successive owners of the land bound by a particular building restriction agree to take subject to the obligation contained in the restriction. Leonard v. Lavigne, 153 So.2d 544, 548 (La.App. 1st Cir.1963). The court in Leonard stated:

Such language can only indicate intention that the obligation assumed would pass with the land to successive owners or transferees of the Thibodauxs. Clearly, therefore, all successive owners were bound thereby and took subject to the previously recorded restriction.... The restriction in question appears in defendant’s chain of title considering its inclusion in a previously recorded instrument executed by defendants’ immediate author in title. Under such circumstances | ^defendants purchased with constructive notice of the limitation and are bound thereby.

Leonard, supra, 153 So.2d at 548 (emphasis added).

We conclude that, as a matter of law, the Trust’s express stipulation that its sale to Mr. Wilkinson was “made, executed and accepted subject to” the Second Amendment constitutes the Trust’s confirmation of the Second Amendment — supplying the requisite unanimity of consent for this change. The effect of the Trust’s confirmation is retroactive to the date of the adoption of the Second Amendment, which date is July 31, 2002. See La. Civil Code art. 1844.

IV

The Second Amendment, as we earlier noted, was publicly recorded according to the requirements of the condominium law, which provides:

The condominium declaration and any instrument by which the condominium regime is altered or terminated shall be effective against third parties when filed for registry in the conveyance records in the parish in which the immovable property is located.

La. R.S. 9:1122.101. La. C.C.P. art. 1919 requires that all final judgments affecting title to immovable property must describe the immovable property with particularity. In this case, as the judgment affects title to the immovable property, we recognize the property’s particularized description as follows:

THAT CERTAIN PIECE OR PORTION OF GROUND, together with all the buildings and improvements thereon, rights, ways and privileges thereunto belonging or in anywise appertaining, situated in the SECOND DISTRICT of the City of New Orleans, Parish of Orleans, State of Louisiana, in SQUARE NO. 81, thereof, bounded by ESPLANADE AVENUE, DAUPHINE STREET, BARRACKS STREET and BURGUNDY STREET, designated as LOT A-l, according to a survey by Guy J. Seghers, C.E. & S., dated March 23, 1954, redated June 19, 1958, revised October 10, 1962, a copy of which is annexed to an act passed | inbefore Edmond G. Mirarme, Notary Public, dated October 11, 1962, which said Lot A-l measures 64.3 feet (actual) (63 feet 11 inches 3 lines title) front on Esplanade Avenue, by a depth and front on Dauphine Street of 91.4 feet; with a first width in rear of 40 feet 6 inches 3 lines; thence a second depth of 30.8 feet on a line parallel with Dauphine Street to a point on the rear line and a second width of 23.7 feet; with a depth on the Burgundy Street side of 122 feet.
According to a survey by Gilbert, Kelly & Couturie, Inc., dated December 17, 1998, the said portion of ground is located in the same district, square, and is bounded by the same streets, has the same lot number and the same measurements as hereinabove set forth, except that said Lot A-l measures 64 feet 3 inches 4 lines front on Esplanade Avenue.
The improvements thereon bear the Municipal Number: 906 Esplanade Avenue and 1323 Dauphine Street, New Orleans, Louisiana 70116.

CONCLUSION

The Second Amendment to the Declaration of Condominium for Port Esplanade Condominium Association, which amendment is dated July 31, 2002, and recorded at Instrument number 241405 in the conveyance records of Orleans Parish, having been validly confirmed by The Meaghan Frances Hardcastle Trust, is binding and enforceable with respect to the immovable property described above.

DECREE

We affirm the judgment of the trial court in favor of the Port Esplanade Condominium Association and against Michael P. Cusimano, Chere M. Theriot, James K. Ozborn, S. James Wallace, Bruce E. Mo-hat, and Frederick E. Lutz, dismissing their suit with prejudice.

AFFIRMED.

      . The street addresses are 1323 Dauphine Street and 906 Esplanade Avenue.

      . The Dauphine Owners are Michael Cusima-no, Cheré M. Theriot, James K. Ozborn, S. James Wallace, Bruce E. Mohat, and Frederick E. Lutz.

      . The Esplanade Owners who were sued are Peter J. Wanek; Michael S. Sommers and the Sommers Joint Revocable Trust, Unit B; Michael E. Williams, Unit C; Ulrike M. Lang, Unit D; Mary F. Berry, Unit E; Wesley M. Shrum, Jr.; Blaine M. McBurney, Unit G;. Kenneth D. Peters; Michael D. Robeson, Unit I; Henrietta L. Alves.

      . The Esplanade Owners who signed consent to the Second Amendment are Sommers, Williams, Lang, Berry, McBurney, Robeson, and others who were not named defendants in this suit: Jose and Ciarai Gude, and Geoffrey A. and Margaret M. McGovern. The district court dismissed the plaintiffs’ claims against individual condominium owners of units in the Esplanade Avenue building on June 1, 2009. The court granted the plaintiffs thirty days to amend their petition to set forth a cause of action against the dismissed individuals; however, the plaintiffs did not file an amended petition.

      . Additionally, the trial court denied the Esplanade Owners’ exception of no right of action in the judgment which is the subject of this appeal.

      . We specially note that we have considered and denied the Dauphine Owners’ motion to strike the Association’s brief on the grounds that a new legal theory (confirmation of a relative nullity) was not addressed in the trial court and is first raised on appeal. The Dau-phine Owners rely upon Council of the City of New Orleans v. Washington, 09-1067, p. 3-4 (La.5/29/09), 9 So.3d 854, 856-857, which held that constitutional attacks must be specially pleaded in the trial court and may not be raised for the first time on appeal; there is no constitutional attack involved in this case. The Dauphine Owners also rely upon our plurality decision in McDaniel v. Charity Hospital and Medical Center of Louisiana at New Orleans, 08-0229 (La.App. 4 Cir. 8/13/08), 991 So.2d 1138 (Tobias, J., concurring). We distinguish McDaniel because the new legal theories first raised on appeal by the non-prevailing party would have required further factual or evidentiary development, but in this case all the necessary evidence that bears on the issue is before us. Moreover, La. C.C.P. art. 2133 allows a prevailing party such as the Association to "assert, in support of the judgment, any argument supported by the record”. (emphasis added).

      . La.Code of Evidence, Article 103 states, in pertinent part:
      A. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and ...
      (2) When the ruling is one excluding evidence, the substance of the evidence was made known to the court by counsel.
      B. The court may add any other or further statement which shows the character of the evidence, the form in which it was offered, the objection made, and the ruling thereon.

      . By separate order we have granted the motion to strike as it pertains to these evidentia-ry matters.

      . 1. Definitions (e)

      . 1. Definitions (j)


source: Caselaw Access Project

author: CHARLES R. JONES, Judge.

license: Public Domain

text:
    Adolph Charles SUHREN, III v. Cheryl B. GIBERT, Wife of Douglas Hock, Eugene J. Gibert, III, Joel Suhren Gibert, and Nerhus Properties, Inc.
    No. 2010-CA-0767.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 12, 2011.

      Henry W. Kinney, III, Michael L. De-Shazo, Kinney & Ellinghausen, New Orleans, LA, for Plaintiff/Appellant.
    Joseph N. Mole, Benjamin M. Cástori-ano, Frilot L.L.C., New Orleans, LA, Edward F. Kohnke, IV, Preis & Roy, PLC, New Orleans, LA for Eugene J. Gibert III and Sandra Hamblin.
    James A. Brown, Liskow & Lewis, PLC, New Orleans, LA, for Cheryl B. Gibert.
    Patrick J. Fanning, Gretna, LA, for Joel Suhren Gibert.
    Avery B. Pardee, Jones Walker Wae-chter Poitevent Carrere & Denegre, LLP, New Orleans, LA, Thomas K. Potter, III, Burr & Forman LLP, Nashville, TN, for Nerhus Properties, Inc.
    (Court composed of Judge CHARLES R. JONES, Judge PATRICIA RIVET MURRAY, and Judge EDWIN A. LOMBARD).
   CHARLES R. JONES, Judge.

hThe Appellant, Adolph Charles Suhren, III, seeks review of the district court judgment granting summary judgment in favor of Appellees Cheryl Gibert, Eugene Gi-bert, III, and Joel Suhren Gibert, and finding that the claims of Mr. Suhren were perempted. Under our de novo review, we reverse, finding that the claims of Mr. Suhren are not perempted. Furthermore, we remand this matter to the district court to determine whether any of the claims of Mr. Suhren are not prescribed.

This case involves an inter-family dispute between Mr. Suhren and his relatives regarding the administration of a family owned and run business, Nerhus Properties, Inc. (“Nerhus”). Mr. Suhren owns a portion of the shares of stock in Nerhus. His half-sister Sarah Suhren Hamblin, and his two first cousins Cheryl Gibert and Eugene J. Gibert, III, (“Mr. Gibert”), also each own shares of stock in Nerhus. Since 1987 to the present, Ms. Hamblin, Ms. Cheryl Gibert, Mr. Gibert, and Mr. Gibert’s mother, Joel Suhren Gibert (who is also Mr. Suhreris aunt), have comprised the Board of Directors of Nei'hus. Mr. Suhren has a strained relationship with the above referenced members of the Board of Directors, and became suspicious of their management of Nerhus by the late 1990s.

|2In November 2004, Mr. Suhren sued Cheryl Gibert, Mr. Gibert, and Joel Suh-ren Gibert — in their capacities as directors of Nerhus — for allegedly breaching their fiduciary duties as administrators over Nerhus. Mr. Suhren also sued Nerhus . itself. All four defendants will be referred to as the “Appellees” herein. Mr. Suhren specifically alleges the following: that the Appellees purposely tried to dilute the value of his share of stock; that they paid themselves for jobs they were not performing; that they collaborated to force him out of Nerhus; and that they diverted a corporate opportunity in Colorado from Nerhus. Mr. Suhren further alleged that the Appellees breached duties of care and loyalty, and sought a ruling to set aside the issuance of unauthorized shares of stock by the Appellees. Mr. Suhren maintains that the alleged wrongdoing by the Appellees continues to the present.

Mr. Suhren amended his petition for damages twice. Initially, he amended his petition for damages to include additional claims against Mr. Gibert, alleging that Mr. Gibert usurped business opportunities which belonged to Nerhus. Furthermore, Mr. Suhren sought a declaratory judgment arguing that the Appellees’ efforts to allegedly “ratify” their alleged prior illegal stock issuances were null and void. In his second amended petition, Mr. Suhren added additional facts and alleged usurpation of an investment opportunity in Colorado by the Giberts, and added Ms. Hamblin as a defendant.

The Appellees filed a joint motion for a peremptory exception of prescription, and Nerhus filed a separate exception of prescription, peremption, no cause of action, and no right of action, which the district court deferred consideration of until trial on the merits.

| ¡Additionally, in response to being sued in the second amended petition, Ms. Ham-blin filed an exception of prescription, which was granted on July 20, 2008. The claims against Ms. Hamblin were dismissed with prejudice. Subsequently, Mr. Suhren filed a Motion for New Trial. Additionally, Mr. Gibert individually and the Appellees filed a motion for summary judgment, raising an exception of peremption against Mr. Suhren in September of 2008. The district court heard both the motion for summary judgment and the motion for new trial on the same date in March 2009.

The district court rendered judgment granting the Appellees’ Motion for Summary Judgment, finding, sua sponte, that Mr. Suhren’s claims were perempted under La. R.S. 12:1502. The motion for summary judgment of Mr. Gibert was granted as well. Furthermore, the court denied Mr. Suhren’s Motion for New Trial as moot. The district court dismissed all of the claims of Mr. Suhren with prejudice, and ordered the parties to bear their own costs. A signed judgment was rendered by the court in April 2009.

Thereafter, the Appellees filed a “Motion to Tax Costs and Expenses Based on Offer of Judgment Ordering Each Party to Bear Its Own Costs”, which the district court treated as a motion for new trial. The district court denied the motion.

Mr. Suhren timely filed the instant appeal and seeks review of the April 2009 judgment. Additionally, the Appellees have filed a cross-appeal seeking a reversal of the determination of the district court that they were to pay their own costs, and requesting that this court award them damages for the costs of the instant appeal.

|4Mr. Suhren raises five issues on appeal:

1. Is the limitation period contained within La. R.S. 12:1502 a hybrid li-berative prescriptive period, as was determined by the First Circuit in Wooley v. Lucksinger, 2006-1140 (LaApp. 1 Cir. 12/30/08); 14 So.3d 311, writ granted, 2009-0571 (La.12/18/09); 23 So.3d 953, or is that limitation period peremptive in nature?
2. If this Court disagrees with the First Circuit’s finding that La. R.S. 12:1502 is not peremptive, are claims against the Appellees which arose within three years of the filing of the Petition, and those which arose after the filing of suit, still viable?
3. Do genuine issues of material fact exist with respect to Mr. Suhren’s claims that the Appellees have engaged in a scheme whereby they have taken excessive salaries and personal benefits to drain Nerhus of all its profits, while also engaging in sham stock offerings designed solely to dilute his interest in the corporation and usurping business opportunities that rightfully belonged to Nerhus?
4. Under Louisiana law, is the intentional breach of a fiduciary duty a tort?
5. Should the district court have allowed him the opportunity to amend his suit under La. C.C.P. art. 934 after granting an exception of prescription, where the grounds for granting the exception can be cured by amendment?

Appellate courts review of a summary judgment is de novo. Dominio v. Folger Coffee Co., 2005-0357 (La.App. 4 Cir. 2/15/06), 926 So.2d 16. Furthermore, a motion for summary judgment will be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). However, if the mov-ant will not bear the burden of proof at trial, the movant’s burden on the motion does not require him to negate all essential elements of the |sadverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. La. C.C.P. art. 966(C)(2). Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. Id.

Albeit that Mr. Suhren raises five issues on appeal, we find that addressing the first assignment of error is dispositive of the entire appeal. The outcome of this case depends upon whether we determine that La. R.S. 12:1502 sets forth a peremp-tive time limitation or a prescriptive one. La. R.S. 12:1502, entitled Actions against persons who control business organizations, states in pertinent part:

A. The provisions of this Section shall apply to all business organizations formed under the laws of this state and shall be applicable to actions against any officer, director, shareholder, member, manager, general partner, limited partner, managing partner, or other person similarly situated.
B. The term “business organization” includes any entity formed under the laws of this state engaged in any trade, occupation, profession, or other commercial activity including but not limited to professions licensed by a state or other governmental agency. This Section shall apply without limitation to corporations, incorporated or unincorporated associations, partnerships, limited liability partnerships, partnerships in commen-dam, limited liability companies, or cooperative associations or other entities formed under the laws of this state.
C. No action for damages against any person described in Subsection A of this Section for an unlawful distribution, return of an unlawful distribution, or for breach of fiduciary duty, including without limitation an action for gross negligence, but excluding any action covered by the provisions of Subsection D of this Section, shall be |r,brought unless it is filed in a court of competent jurisdiction and proper venue within one year from the date of the alleged act, omission, or neglect, or within one year from the date that the alleged act, omission, or neglect is discovered or should have been discovered, but in no event shall an action covered by the provisions of this Subsection be brought more than three years from the date of the alleged act, omission, or neglect.
D. No action for damages against any person listed in Subsection A of this Section for intentional tortious misconduct, or for an intentional breach of a duty of loyalty, or for an intentional unlawful distribution, or for acts or omissions in bad faith, or involving fraud, or a knowing and intentional violation of law, shall be brought unless it is filed in a court of competent jurisdiction and proper venue within two years from the date of the alleged act or omission, or within two years from the date the alleged act or omission is discovered or should have been discovered, but in no event shall an action covered by the provisions of this Subsection be brought more than three years from the date of the alleged act or omission.
E. The time limitations provided in this Section shall not be subject to suspension on any grounds or interruption except by timely suit filed in a court of competent jurisdiction and proper venue.

This statute recognizes two separate time limitations to file suit against business organizations, and “officers, directors, shareholders, members, managers, general partners, limited partners, managing partners, or other persons similarly situated” for non-intentional and intentional tortious actions.

Non-intentional actions [i.e. actions for unlawful distributions, return of unlawful distributions, or breaches of fiduciary duty (including without limitation actions for gross negligence) ] must be brought within one year from the date of the alleged act, omission or neglect, or within one year of the time it was or should 17have been discovered, but in all events such actions must be brought within three years of the act, omission, or neglect. However, if the alleged conduct involves intentional tor-tious misconduct, intentional breach of a duty of loyalty, an intentional unlawful distribution, acts or omissions in bad faith, fraud or a knowing and intentional violation of law, then any action must be brought within two years of the act or omission, or two years from the time it was or should have been discovered, but in all events within three years of the act or omission. La. R.S. 12:1502 states that said time limitations are not subject to suspension or interruption except by timely suit in a court of competent jurisdiction and proper venue. Thus, the time limitation contained within the statute appears to be peremptive.

Mr. Suhren’s principal argument is that his claims against the Appellees are not perempted. He relies on a First Circuit case entitled Wooley v. Lucksinger, 2006-1140 (LaApp. 1 Cir. 12/30/08), 14 So.3d 311, wherein the First Circuit held that La. R.S. 12:1502 is a hybrid liberative prescription and peremption statute in that it provides a liberative prescriptive period that is subject to the qualifications that the prescriptive period is not subject to interruption or suspension. See Borel v. Young, 2007-0419, pp. 28-29 (La.ll/27/07)(on reh’g), 989 So.2d 42, 69.

The Appellees argue that the analysis of the First Circuit is patently flawed because the appellate court illogically abandoned its acknowledgment that the periods of La. R.S. 12:1502 cannot be suspended. The Appellees further argue that this Court should be particularly concerned about applying the analysis of Wooley \ Rin the instant case because there are three writs of certiorari pending before the Louisiana Supreme Court in Wooley.

We agree with both the First Circuit in Wooley, and the Appellees in part. Liber-ative prescription is a mode of barring actions as a result of inaction for a period of time. La. C.C. art. 3447. Peremption is a period of time fixed by law for the existence of a right, and, unless timely exercised, the right is extinguished upon the expiration of the peremptive period. La. C.C. art. 3458. Liberative prescription can be renounced, interrupted, and suspended. La. C.C. arts. 3449-3451, 3462-3472. Peremption may not be renounced, interrupted, or suspended. La. C.C. art. 3461.

In its analysis of La. R.S. 12:1502, the First Circuit in Wooley reasoned that if the Legislature wanted the imposed time limit to be peremptive, the Legislature would have included wording to that effect within the statute. Additionally, the First Circuit reviewed the intent of the legislature in enacting the statute. Our brethren explained that the legislative history of the statute revealed that when enacted the title of La. R.S. 12:1502 was “PRESCRIPTIVE PERIODS APPLICABLE TO BUSINESS ORGANIZATIONS.” Wooley v. Lucksinger, 2006-1140, p. 217 (La.App. 1 Cir. 12/30/08), 14 So.3d 311, 461. That court found that this title was indicative of the object of the legislature to enact the statute, /¿.(citing LA. CONST, art. Ill, § 15(A)). And that court also observed that in another statute, La. R.S. 49:112, similar language regarding time limitations had been examined previously by their court in Conerly v. State of Louisiana Through 9the Louisiana State Penitentiary & the Department of Corrections, 2002-1852 (La.App. 1 Cir. 6/27/03), 858 So.2d 636. The Wooley court explained:

La. R.S. 12:1502 E provides that “The time limitations provided in this Section shall not be subject to suspension on any grounds or interruption except by timely suit filed in a court of competent jurisdiction and proper venue.” Language similar to this was interpreted by this Court in Conerly, 2002-1852 at p. 8, 858 So.2d at 644:
The period of limitation contained in LSA-R.S. 49:112 clearly has some aspects of a peremptive period. Most notably, as the State points out in its brief to this court, the statute provides that there will be no interruption or suspension of the time period. The Louisiana Supreme Court has recognized this * *219 as a characteristic of peremption. Flowers v. Rausch, 364 So.2d 928, 931 (La.1978). However, the Legislature is free to enact statutes containing prescriptive periods and to dispense with exceptions to those prescriptive periods. See Hebert [v. Doctors Memorial Hosp.], 486 So.2d [717] at 724 [La. 1986]. Moreover, had the Legislature meant for the time period to be per-emptive, it could have expressed its intent in the title or text of the act enacting LSA-R.S. 49:112 or in the language of LSA-R.S. 49:112 itself. Basically, LSA-R.S. 49:112 creates a hybrid time period as concerns actions against the State. Despite having some characteristics in common with peremptive time periods, we find that the time period set forth in LSA-R.S. 49:112 is, as the legislature described it, a prescriptive period, with the qualifications that the prescriptive period is not subject to interruption or suspension. (Emphasis added; footnote deleted).

2006-1140, pp. 218-19, 14 So.3d at 462.

We agree with the reasoning of the First Circuit as to the hybrid prescriptive and peremptive nature of La. R.S. 12:1502. This statute is a prescriptive statute 1inthat is subject to time limitations that have peremptive attributes. Nevertheless, the time limitations contained within this statute do not allow for plaintiffs, such as Mr. Suhren, to levy claims under the continuous tort doctrine.

Albeit that the statute at issue is not a strictly peremptive statute, the per-emptive elements of the subject liberative prescription statute still do not permit the application of a continuing tort theory. A continuing tort is a “jurisprudentially recognized doctrine that provides continuous tortious conduct and continuous damages that may suspend prescription.” Brumfield v. McElwee, 2007-0548, p. 8 (La.App. 4 Cir. 1/16/08), 976 So.2d 234, 240-41 (citing Scott v. American Tobacco, 04-2095, pp. 17-18 (La.App. 4 Cir. 2/7/07), 949 So.2d 1266, 1279-80; Bustamento v. Tucker, 607 So.2d 532, 537 (La.1992)). The application of this doctrine stands in direct opposition, however, to the specific wording of this statute, which provides in La. R.S. 12:1502(E) that actions brought under La. R.S. 12:1502 are not subject to suspension or interruption, unless a suit is timely filed. The continuing tort doctrine is a suspension principle based on contra non valentem. Brumfield, 2007-0548, p. 9, 976 So.2d at 241 (citing Scott v. American Tobacco, 949 So.2d at 1280). The continuing tort doctrine is not applicable to statutory claims that bar suspension of the prescriptive period as that would only serve to subvert the ban in the first place. Thus, the continuing tort doctrine is not applicable to this case.

Additionally, we find that La. R.S. 12:96, entitled Actions against directors and officers, is also applicable to the case sub judice because it also establishes prescriptive periods for suing directors and officers. Regarding claims for breach of duty against directors and officers, this statute mandates that plaintiffs must file suit within one year from either the date of the alleged act, omission, or neglect; |nor, from the date that the alleged act, omission, or neglect is discovered or should have been discovered. For claims involving intentional tortious misconduct, intentional breach of a director’s or officer’s duty of loyalty, or for acts or omissions in bad faith, or involving fraud, or a knowing and intentional violation of law, plaintiffs must file suit within two years from the date of the alleged act or omission; or, within two years from the date the alleged act or omission is discovered or should have been discovered. La. R.S. 12:96, states in pertinent part:

A. No action for damages against any director or officer for breach of his duty as a director or officer, including without limitation an action for gross negligence, but excluding any action covered by the provisions of Subsection B of this Section, shall be brought unless filed in a court of competent jurisdiction and proper venue within one year from the date of the alleged act, omission, or neglect, or within one year from the date that the alleged act, omission, or neglect is discovered or should have been discovered.
B. No action for damages against any director or officer for intentional tor-tious misconduct, or for an intentional breach of the director’s or officer’s duty of loyalty, or for acts or omissions in bad faith, or involving fraud, or a knowing and intentional violation of law, shall be brought unless filed in a court of competent jurisdiction and proper venue within two years from the date of the alleged act or omission, or within two years from the date the alleged act or omission is discovered or should have been discovered.

Thus, the claims of Mr. Suhren against the Appellees under La. R.S. 12:1502 are subject to similar prescriptive periods under La. R.S. 12:96.

Lastly, recognizing that La. R.S. 12:1502 is a prescriptive statute with peremptive time limitations, Mr. Suhren would be entitled to pursue claims against the Appellees for claims that have not prescribed. It appears from the record that by the late 1990s, Mr. Suhren was concerned about some of the transactions of the 11?Board of Directors. The record shows that between 1998 and the end of 1999, Mr. Suhren corresponded and met with Mr. Gibert regarding certain business ventures and offerings to purchase additional stock. The two men as well as the first wife of Mr. Suhren, who was a CPA, also had a meeting in 1999, where it appears that a business venture in Colorado was discussed. Furthermore, within that same time frame, Mr. Suhren also met with a bookkeeper for Nerhus, and at several other occasions had access to Nerhus financial records for either his review or that of his counsel. He did not pursue any claims against the Appellees at that time nor immediately thereafter. Nevertheless, in his petition for damages, Mr. Suhren maintains that the alleged wrongdoing by the Appellees continues to the present.

Considering that under these facts it is very possible for some of the claims of Mr. Suhren have prescribed, we remand this matter to the district court to distinguish which claims of Mr. Suhren are not prescribed pursuant to La. R.S. 12:1502, and thus, are still viable for him to pursue. Furthermore, we note that, on remand, Mr. Suhren is entitled to amend his petition under La. C.C. P. art. 934, should the district court determine that prescription can be cured by an amendment.

11¾Answer to Appeal

Lastly, Eugene J. Gibert filed an answer to the appeal of Mr. Suhren. In his answer, Mr. Gibert requests that:

(1) the Judgment appealed from be modified to provide that all costs are assessed against Mr. Suhren, and
(2) that Mr. Suhren be condemned to pay the costs and expenses of this appeal.

“The trial court has great discretion in assigning costs and an award will not be reversed unless there is an abuse of discretion.” Buffman Inc. v. Lafayette Co., 2009-0870, p. 38 (La.App. 4 Cir. 4/14/10), 36 So.3d 1004, 1030 (citing Sanderford v. Lombard, 96-1171(La.App. 4 Cir.1996), 685 So.2d 1162, 1168; D’Angelo v. New Orleans Public Service, Inc., 405 So.2d 1262, 1271(La.App. 4 Cir.1981)). The district did not abuse its discretion in declining to assess costs against Mr. Suhren. Furthermore, we decline to assess the costs of the instant appeal to Mr. Suhren.

DECREE

For the foregoing reasons, the judgment of the district court, granting summary judgment against Adolf Charles Suhren, III, and therein finding that his claims were preempted, is hereby reversed. We remand to the district court for further proceedings, consistent with our decree herein.

REVERSED AND REMANDED; CROSS APPEAL DISMISSED.

      . Mr. Suhren alleges that he, Ms. Hamblin, Ms. Cheryl Gibert and Mr. Eugene Gibert each own a quarter of the shares of stock in Nerhus.

      . The three pending writ applications before the Supreme Court are: Wooley v. Lucksinger,
        2009-0585 (La.12/18/09), 23 So.3d 951; Wooley v. Lucksinger, 2009-0584 (La.12/18/09), 23 So.3d 952, and Wooley v. Lucksinger, 2009-0571 (La.12/18/09), 23 So.3d 953.

      . La. C.C. P. art. 934, entitled Effect of sustaining peremptory exception, provides:
      When the grounds of the objection pleaded by the peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court. If the grounds of the objection raised through the exception cannot be so removed, or if the plaintiff fails to comply with the order to amend, the action, claim, demand, issue, or theory shall be dismissed.


author: MURRAY, Judge.

text:
    Warren BOURGEOIS v. ST. BERNARD PARISH SCHOOL BOARD.
    No. 2010-CA-1049.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 12, 2011.
    Robert E. Peyton, P. Ryan Plummer, Christovich & Kearney, L.L.P., New Orleans, LA, for Plaintiff/Appellant.
    Alvin J. Bordelon, Jr., Bordelon & Ther-iot, Lawyers, Metairie, LA, for Defendant/Appellee.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge JAMES F. McKAY, III, Judge EDWIN A. LOMBARD).
   MURRAY, Judge.

_JjThe plaintiff, Warren Bourgeois, appeals the district court’s judgment dismissing his action against the St. Bernard Parish School Board [“the School Board”] on the basis that the plaintiff failed to prove the defendant’s liability at trial. For reasons that follow, we affirm.

FACTS AND PROCEEDINGS BELOW

On December 16, 2003, the plaintiff was injured on the grounds of the Lacoste Elementary School in St. Bernard Parish, where he had gone to see his granddaughter perform in a school play. It is undisputed that Mr. Bourgeois fell, injuring his hand, arm, shoulder and knee, while attempting to negotiate a single step up from the parking lot level onto the concrete porch in front of the school. He was accompanied by his wife, Romma, and his son, Warren, Jr., when he fell. On December 4, 2004, Mr. Bourgeois filed this suit alleging that his fall was caused by the slippery surface of the concrete step and/or porch.

A bench trial was held on November 30, 2009. On January 28, 2010, the trial court rendered a written judgment in favor of the School Board, dismissing the 12plaintiffs case. In accompanying Reasons for Judgment, the trial court noted that the plaintiff had failed to establish the existence of skateboard wax at the location of Mr. Bourgeois’ fall at any time closely related to the date of the fall. Moreover, the court found that Mr. Bourgeois had failed to prove that he had slipped rather than merely tripped while attempting to step up. Finally, the trial court noted the complete lack of evidence to prove that any foreign substance on the step had posed an unreasonable risk of harm, or that the School Board had actual or constructive knowledge of the dangerous condition in sufficient time to repair it, which elements are necessary to establish liability on the part of the School Board.

ISSUES

The plaintiff appeals this judgment on the sole basis that the trial court erred by failing to give sufficient weight to the testimony of Ms. Belinda Unbehagan, a disinterested witness. DISCUSSION

In Stobart v. State, Dept. of Transp. and Development, 617 So.2d 880, 882, the Louisiana Supreme Court explained that the appellate standard of review for a factual finding of the trial court is the manifest error/clearly wrong standard. According to this standard, if the trial court’s factual findings are reasonable in light of the record reviewed in its entirety, a reviewing court may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Id. at 882-83.

|sTo establish the liability of the School Board, the plaintiff was required to prove each of the elements listed by La. R.S. 9:2800, which imposes a limitation on the liability of a public body for damages caused by the condition of public buildings or premises. La. R.S. 9:2800(C) provides, in pertinent part:

... [N]o person shall have a cause of action based solely upon liability imposed under Civil Code article 2317 against a public entity for damages caused by the condition of things within its care and custody unless the public entity had actual or constructive notice of the particular vice or defect which caused the damage prior to the occurrence, and the public entity has had a reasonable opportunity to remedy the defect and has failed to do so.

Five witnesses testified at the trial of the instant matter. Regarding his fall, Mr. Bourgeois, testified: “I put my foot on the edge of the curb and the opposite foot just slid right off of the curb and I went down face first ...” He stated that he did not know what caused him to fall. To rebut his testimony, the defendant introduced two prior unsworn statements of the plaintiff (the written history he gave at the emergency room the night he fell and a taped statement he gave to the school district’s insurance claims service), which both indicated he had caught the tip of his shoe and tripped rather than slipped on the step. At trial, Mr. Bourgeois denied that he had tripped.

The plaintiffs daughter, Lisa Darce, who was inside the school at the time the plaintiff fell, testified that she went back to the school during the Christmas holidays (a week or so after her father’s fall) to take video pictures of the area where her father had fallen. While she was filming, Ms. Belinda Unbehagan, who also had children attending the school, drove up in her car and asked Ms. Darce what she was doing. When Ms. Darce explained, Ms. Unbeha-gan remarked that Ms. Darce’s father probably had slipped on skateboard wax. Ms. Unbehagan then |4pointed out a discoloration on the concrete step that she claimed was wax put there by skateboarders who sometimes used the area after school hours. Although Ms. Unbehagan never got out of her car, Ms. Darce did bend down and touch the step, which she said felt smooth, not rough like concrete. Ms. Darce believed there was a foreign substance on the step, but she could not tell what it was, except for Ms. Unbeha-gan’s assertion that it was skateboard wax.

Ms. Unbehagan testified that she was a longtime parent volunteer at the school and a past president of the PTA. She also lived near the school and was very familiar with the “bus loading area,” where the accident had occurred. When she noticed Ms. Darce taking pictures of that area during the Christmas holidays, she stopped to ask why. After learning of the accident, Ms. Unbehagan told Ms. Darce that she had previously seen wax on the top of the step and had scraped it with her finger. It had the bubble-gum smell of “sex wax,” which she knew to be a type of wax used by skateboarders. When she had worked at the school from 1999 to 2003, Ms. Unbehagan had often seen skateboarders in the school backyard and parking lot on weekends and had run them off. She had never actually seen them applying wax to that particular step because they ran when they saw her car, but she had seen them from a distance, and they had appeared to be applying something to the step with their hands. The skateboarders also moved the concrete barricades to make rails. Ms. Unbehagan had discussed the skateboarding problem with the school’s principal and maintenance coordinator on several occasions; she had told them the skateboarders were “nicking everything up and waxing everything up.” However, she had never told or shown the principal or the maintenance supervisor that there was wax on that particular step or in that particular area of the school.

| fiMs. Joy O’Connor, who was principal of the school for five years including the time of the accident in December of 2003, testified that she knew and trusted Ms. Unbehagan. Although Ms. O’Connor was aware prior to December, 2003, that there was skateboarding going on in the backyard and front loading areas of the school after hours, she did not recall Ms. Unbeha-gan ever having told her about any skateboard wax on the premises. She had also never had any complaints from anyone else about skateboard wax. If any wax had been present, she would have ordered the school custodian to clean it up. If the custodian could not accomplish that, Ms. O’Connor would have put in a work order to Mr. Middleton, the maintenance coordinator for the district. Ms. O’Connor also testified that during her five years as principal, approximately five hundred children and teachers had used the bus loading area daily, but no one had ever reported having slipped.

The final witness was the maintenance coordinator for the school district, Mr. Edwin Middleton. He acknowledged that Ms. Unbehagan had complained about skateboarders abusing the playground equipment in the backyard on weekends. Hence, he had installed a three-foot fence around the backyard area. Ms. Unbeha-gan had complained to him about skateboarders, but not about wax. He had never had any complaints from anyone concerning skateboard wax or wax in the front loading area or on the front porch. He also identified photographs of the area where the accident had occurred, and said he believed the discoloration that appeared on the step had been caused by rainwater runoff; Mr. Middleton, who oversaw maintenance at fifteen schools, said he had seen the same type of discoloration of concrete on the steps of other schools and public buildings, such as the courthouse.

| fiAfter reviewing all the evidence in this case, we cannot say the trial court committed manifest error in its factual findings. Although the plaintiff contends that the trial court improperly weighed the testimony of Ms. Unbehagan, a disinterested witness, versus that of Ms. O’Connor and Mr. Middleton, who were school board employees, the record does not support this contention. The trial court judge specifically noted that he believed Ms. Unbeha-gan, but had a problem with the lack of any testimony from her regarding the precise timing of her observations and/or her complaints to the school personnel. As the trial court noted in its Reasons for Judgment:

The testimony of Ms. Unbehagan, while well-intended, simply is not sufficient to establish that on December 16, 2003, there was skateboard wax on the concrete where Mr. Bourgeois fell. The testimony simply is not specific enough as to a time frame and location in which she saw wax being applied by skateboarders .... Additionally, even if the Court believed Mr. Bourgeois had slipped as opposed to tripped, plaintiff still has not proven the remaining elements to afford recovery.... Specifically, plaintiff must prove that even if skateboard wax had been present at this location at some time, it was still so slippery that it posed an unreasonable risk of harm. There is simply no evidence other than Ms. Darce’s testimony that it did not feel like concrete, that the fall area was unreasonably dangerous. This is legally insufficient to prove a dangerous condition.... Finally, the last element is also lacking in that there is an absence of evidence that the school board had actual or constructive notice of any conditions at this location. Ms. Unbehagan’s testimony simply does not provide sufficient details that relate it to this time frame rather than a number of years previously.

We find the record supports the trial court’s conclusion that Ms. Unbehagan’s testimony, regardless of its credibility or of the weight given to it, did not have sufficient content to establish the elements necessary to impose liability on the School Board under La. R.S. 9:2800. Because the trial court’s conclusion is reasonable based upon the record, we find no manifest error.

| CONCLUSION

Accordingly, for the reasons stated, we affirm the judgment of the trial court.

AFFIRMED.

      . The plaintiff's brief noted that his second assignment of error, addressing whether the parties had agreed to a stipulation concerning the amount of damages, need be considered only in the event this court reversed the trial court's finding of no liability on the part of the School Board.


author: PATRICIA RIVET MURRAY, Judge.

text:
    Nina Day WILLIAMS wife of Louis Patric Poore v. Louis Patrie POORE.
    No. 2010-CA-1087.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 12, 2011.

      Denisse Y. Parrales, Hesni & Parrales, P.L.C., Gretna, LA, for Plaintiff/Appellant.
    Max M. Chotto, Max M. Chotto, A.P.L.C., Gretna, LA, for Defendant/Ap-pellee.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge JAMES F. McKAY, III, Judge EDWIN A. LOMBARD).
   PATRICIA RIVET MURRAY, Judge.

|! This is a post-divorce matter. This appeal arises out of a rule to modify final spousal support filed by Louis Poore and a rule for contempt filed by his former wife, Nina Williams. From a judgment granting Mr. Poore’s rule to modify the spousal support, Ms. Williams appeals. For the reasons that follow, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On September 14, 1998, Mr. Poore and Ms. Williams were divorced after thirty-three years of marriage. At the time of the divorce, the parties had two major children. On the same date as the divorce, the parties entered into a consent judgment that provided for Mr. Poore to pay Ms. Williams permanent spousal support in the amount of $1,500.00 per month. The consent judgment provided as follows:

IT IS HEREBY ORDERED, ADJUDGED AND DECREED that Louis Patrie Poore pay to Nina Day Williams Poore permanent spousal support in the amount of $1,500.00 per month beginning on August 1, 1998, and continuing thereafter until such time as Nina Day Williams Poore remarries or dies.
LIT IS HEREBY FURTHER ORDERED, ADJUDGED AND DECREED that both parties hereto are responsible for all of their other expenses including but not limited to medical and dental expenses, medical and dental insurance, and automobile insurance. The only financial obligations between the parties hereto is the $1,500.00 per month in permanent spousal support set forth hereinabove which is payable by Louis Patrie Poore to Nina Day Williams Poore.
AS FURTHER CONSIDERATION for this Consent Agreement the parties hereto specifically agree that neither party will discuss their personal lives during the marriage or anything that personally regarded either party during the marriage with any third parties, particularly, the parties hereto agree that they will not discuss any matters that occurred during their marriage with the employer of either party hereto and the parties to this consent judgment understand that this is an integral part of this consent judgment and should this confidentiality provision be violated by either party, said violation will be considered a direct breech [ (sic) ] of this consent judgment.

From 1998 to 2009, Mr. Poore complied with the requirement of the consent judgment that he pay monthly spousal support to Ms. Williams.

On July 21, 2009, Ms. Williams filed a Rule for Contempt based on Mr. Poore’s failure to pay the spousal support. At that time, Mr. Poore was $5,750.00 in arrears. On August 17, 2009, a hearing was held on the Motion for Contempt. On September 3, 2009, the trial court rendered judgment in favor of Ms. Williams, finding that Mr. Poore was in contempt and that he was $8,750.00 in arrears. The trial court made that amount executory.

On November 12, 2009, Mr. Poore filed a Rule to Terminate or Reduce Spousal Support. He alleged that since the consent judgment was entered into there has been a substantial change in his circumstances based on the following:

• Mr. Poore “lost his job with his employer through ‘no fault’ of his own;” rather, he “lost his job due to a huge down turn in the national economy;”
• Ms. Williams “has done very well in that she has collected at least $180,000” from him over the last ten years;
Is* “The period of time for the recipient [Ms. Williams] to adjust to the divorce is long past due;”
• “The recipient [Ms. Williams] at this time is in a better financial place than mover [Mr. Poore] and the support herein is no longer necessary;” and
• Ms. Williams “has a long history of employment and is able to care for herself.”

On March 1, 2010, Ms. Williams filed another Motion for Contempt.

On March 11, 2010, Mr. Poore’s Rule to Terminate or Reduce Spousal Support was heard. On March 24, 2010, the trial court rendered judgment denying Mr. Poore’s rule to terminate spousal support. The trial court found that the parties’ consent judgment regarding permanent spousal support could not be terminated, but it could be modified because it “did not expressly preclude reduction of alimony.” The trial court set a hearing for April 21, 2010, to allow the parties to submit evidence regarding Mr. Poore’s rule to modify spousal support — to allow “Mr. Poore to offer evidence on whether there has been a material change in circumstances since the agreement was confected.”

At the April 21, 2010 hearing, both parties testified and presented evidence. Mr. Poore, who was sixty-six years old at the time of the hearing, testified that he is an operations person for a travel agency. In November 2009, he lost his job at Carlson Wagonlit Travel. He was terminated due to the bad economy. At the time he was terminated, he had been employed by Carlson for nineteen years and was earning $98,000.00 per year. As a result of losing his job, Mr. Poore testified that he was unable to continue paying the spousal support to Ms. Williams or, as discussed below, to continue providing financial support to his major son, Christopher Poore.

14From August 1998 until November 2009, with one slight exception, Mr. Poore testified that he faithfully paid Ms. Williams the $1,500.00 monthly spousal support. The exception was that he became slightly behind on the spousal support payments from March to September 2009. However, he paid the arrearages when he received a severance package from Carlson equal to six months of his salary. He estimated the net amount of the severance package was $24,000.00, and the gross amount was $41,000.00. Mr. Poore admitted that he had not paid any spousal support from November 2009 through the date of the hearing, April 2010, resulting in another arrearage.

On January 4, 2010, Mr. Poore was rehired by another company, Travelcorp International. He testified that his salary at Travelcorp is forty percent less than he was earning at Carlson. At Travelcorp, his annual salary is $60,000.00. According to Mr. Poore, his present salary is less than he was earning at the time of the 1998 consent judgment. In 1998, he was earning about $75,000.00 to $80,000.00 per year plus bonuses. His records from 1998 were destroyed as a result of Hurricane Katrina.

According to the Monthly Finance Overview that Mr. Poore introduced at the hearing, his current income is $6,945.17 per month. His current income is derived from the following six sources: $8,356.86 (Travelcorp net monthly salary); $2,099.00 (Social Security benefits); $885.79 (Met-Life annuity); $103.52 (pension); $250.00 (Travelcorp car allowance); and $750.00 (current wife’s estimated salary from her part-time job).

Mr. Poore testified that since 1998 his expenses have increased dramatically and that his current monthly expenses exceed his current monthly income. According to his Monthly Finance Overview, his current expenses total $7,788.95, |5plus the $1,500.00 spousal support at issue. He has a first and second mortgage on his home (which total $1,936.34 a month). However, his biggest current expense ($3,106.00 a month) arises from the monthly payments on his eight major credit cards on which he has accumulated large balances. He testified that he was able to work out an arrangement with each of his credit card companies for a sixty-month pay off plan with significantly reduced interest rates.

Mr. Poore explained that the large credit card balances primarily were due to his use of the cash advance feature to obtain money to assist his major son, Christopher Poore, who was having financial difficulties. His son, who was forty-three years old at the time of the hearing, was divorced, had three minor children, and had difficulty maintaining a job. According to Mr. Poore, “the expenses were pretty much attached to that situation.” Mr. Poore acknowledged that Ms. Williams likewise has provided financial assistance to their son. As noted, Mr. Poore stopped providing financial assistance to his son and stopped paying Ms. Williams spousal support in November 2009 when he lost his job. Mr. Williams testified that he was attempting to avoid filing bankruptcy.

According to Mr. Poore, Ms. Williams worked during the marriage from time to time as an optical sales person. He testified that she was not disabled at the time they entered into, the consent agreement.

Ms. Williams, who was sixty-three years old at the time of the hearing, testified that she was not employed. She stated that she has not worked since she started taking medication for her mental condition, which is discussed below, and that she had not applied for Social Security benefits. She explained that the reason she had not applied for Social Security benefits was because she could receive higher benefits if she waited until she reached age sixty-eight or seventy to apply. | (iShe had, however, applied for Social Security disability benefits, but was denied because she did not have sufficient work credits.

Ms. Williams acknowledged that Mr. Poore has paid her about $200,000.00 in spousal support during the last ten years and that during that period she has not sought employment. She likewise acknowledged that she did she seek employment when Mr. Poore stopped paying her spousal support. She explained that she is incapable of working due to her mental condition. She further explained that her treating psychiatrist, Dr. Charles Billings, diagnosed her as bipolar and manic depressive and that she is taking multiple medications for her mental condition. According to Ms. Williams, Dr. Billings told her it would be difficult for her to hold a full-time job because she was fragile.

During the time that Mr. Poore failed to pay her spousal support, Ms. Williams testified that she spent $18,500.00 of the $20,000.00 she had in a savings account. She identified the primary source of the funds in the savings account as coming from her father who passed away in June 2008.

On her Statement of Income and Expenses, dated November 30, 2009, which she introduced at the hearing, Ms. Williams listed her monthly income as totaling $1,657.92 ($1,500.00 in spousal support and $157.92 in pension), and her monthly expenses as totaling $2,607.00. Her primary monthly expenses are health insurance ($744.00) and medication ($453.00). Ms. Williams owns her own house and thus has no mortgage expense. Ms. Williams listed her assets as totaling $244,900.00, which consisted of the following: her house ($125,000.00), stocks or 17bonds ($100,000.00), a vehicle ($13,-000.00), cash ($200.00), and saving and checking accounts ($6,700.00).

Ms. Williams also listed two loans, one of which was from Steve Wendling for $3,000.00 and the other was from Gloria Wendling for $5,000.00. Ms. Williams identified Mr. Wendling as her fifty year old boyfriend. Ms. Williams testified that Mr. Wendling spends two or three nights per week at her house, but she acknowledged that he does not provide any financial assistance to her. Nor does she provide any financial assistance to him. She testified that they are completely separate.

Ms. Williams testified that she is currently providing financial assistance to her son, Christopher Poore, and that her son is planning to move into her house. She acknowledged that Mr. Poore likewise has provided financial assistance to their son.

On April 30, 2010, the trial court rendered judgment granting Mr. Poore’s rule to modify final spousal support and reducing his obligation to $700.00 per month retroactive to the date of filing, November 12, 2009. Based on Mr. Poore’s admission that he had not paid Ms. Williams any spousal support for the six month period from November 2009 through the date of the hearing, April 2010, the trial court granted Ms. William’s rule for contempt. The trial court also granted Ms. Williams’ motion to make past due support executo-ry in the amount of $5,193.33. The trial court noted that “[t]his figure reflects Mr. Poore’s new spousal support obligation, as it was retroactive to November 12, 2009. The mo[n]th of November |swas pro-rated to reflect the prior and current support obligation.” Ms. Williams then filed this appeal from both the March 24, 2010, and April 30, 2010, judgments.

DISCUSSION

The principal issue on appeal is whether the trial court erred in modifying the final spousal support award. 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.

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)).

Ms. Williams raises three assignments of error. First, she contends the trial court erred in granting of Mr. Poore’s rule to modify final spousal support because the consent judgment was a binding, bilateral contract. Second, she contends the trial court erred in granting Mr. Poore’s rule to modify the final spousal súpport because Mr. Poore did not prove a substantial change in circumstances. Third, she contends the trial court erred in finding her need did not exceed $700.00 per month and that she had the ability to work. We separately address each of her assignments of error.

| ¡,.Modification of final spousal support award

The right to modify the amount of spousal support awarded through a consent judgment depends upon the specific terms of the consent judgment. Aufrichtig v. Aufrichtig, 34,909 (La.App. 2 Cir. 8/22/01), 796 So.2d 57; Twichell v. Twichell, 00-1248, p. 4 (La.App. 5 Cir. 11/28/00), 772 So.2d 956, 959 (citing Bland v. Bland, 97 0329 (La.App. 1 Cir. 12/29/97), 705 So.2d 1158). “The mere listing of events which will terminate spousal support does not evidence a clear intent that the amount of spousal support can never be changed.” Ray v. Ray, 05-0873, p. 6 (La.App. 1 Cir. 3/23/07), 960 So.2d 174, 178 (citing Bland, supra); Stout v. Stout, 97-1508 (La.App. 3 Cir. 10/7/98), 719 So.2d 727. Citing this line of jurisprudence, the trial court in its reasons for judgment stated that “an agreement that terminates contractual alimony upon the death or remarriage of the payee does not preclude modification of the amount unless there is a specific non-modification language such as ‘not subject to increase or decrease.’ ” Finding the consent judgment lacked specific non-modification language, the trial court held that the parties could introduce evidence on whether there had been a material change in circumstances under La. C.C. art. 114, which provides that “[a]n award of periodic support may be modified if the circumstances of either party materially change and shall be terminated if it has become unnecessary.”

Ms. Williams contends that the trial court’s reliance on this line of jurisprudence was misplaced. She contends that the line of cases requiring non-modification language is “inapplicable to the case at hand because of the terms 110contained in the September 14, 1998 consent judgment which made her silence an ‘integral part’ of the consent judgment.” We disagree. The provision regarding the parties’ silence is a reciprocal one, requiring both parties to remain silent. Moreover, the provision regarding silence is separate from the provision regarding spousal support. Given that the spousal support provision does not contain non-modification language, the trial court correctly concluded that the amount of spousal support was subject to modification. The trial court thus did not err in allowing the parties to present evidence on the issue of a substantial change in circumstances under La. C.C. art. 114. Having determined that Mr. Poore could seek a modification of the support obligation, we now address whether a reduction was justified — whether a material change in circumstances was established.

Material change in circumstances

The party seeking to modify a spousal support award has the burden of proving “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.” La. R.S. 9:311(A); La. C.C. art. 114. The party must show either “a change in the obligee’s needs or the obligor’s ability to pay.” Willis v. Willis, 355 So.2d 999, 1001 (La.App. 4th Cir.1978). A trial court’s determination of whether a material change in circumstances has been established will not be disturbed on appeal absent an abuse of discretion. Hebert v. Hebert, 06-1315, p. 3 (La.App. 3 Cir. 2/7/07), 948 So.2d 1239, 1241-42 (citing Dauphine v. Dauphine, 511 So.2d 53 (La.App. 3rd Cir. 1987)).

11 t According to the official revision comments to Article 114, “[t]he court should make the determination whether periodic support will be modified or terminated based on the changed circumstances of either party.” In so doing, “[t]he court should consider the relevant factors listed in Article 112.” The Article 112 factors to be considered by courts in awarding or modifying final spousal support are as follows:

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.

In this case, the trial court was presented with evidence regarding Mr. Poore’s income and Ms. Williams’ needs and found that Mr. Poore met his burden of establishing a material change in circumstances. The trial court gave the following reasons for its finding:

During Mr. Poore’s Rule to Modify, he testified that he lost his job with Carson Wagonlit Travel. Mr. Poore stated that he worked for Carlson Wagonlit for nineteen years and received a severance package in the area of $41,000.00. Mr. Poore recently obtained employment, earning $60,000.00 per year. Mr. Poore introduced an income and expense statement, demonstrating a monthly net income of $6,945.17. He reported that his monthly expenses total $7,788.95. A majority of Mr. Poore’s monthly expenses are related to outstanding credit card [ 12bills. He stated that he incurred these bills as a result of helping the parties’ adult son, Christopher Poore, who had and continues to have financial trouble.
Ms. Williams testified that she has not worked in ten (10) years. She reported that she is on medication which prevents her from working. Ms. Williams stated that her sole source of support is the $1,500.00 spousal support payment. She attached a monthly income and expense statement dated November 30, 2009. At that time, she reported monthly expenses of $2,607.00. Ms. Williams reported her total assets to be $244,900.00. Ms. Williams indicated that she is also helping their son. She stated that Christopher plans on moving in with her in the near future. Ms. Williams acknowledged that Mr. Poore has helped their son in the past.

On appeal, Ms. Williams contends that Mr. Poore failed to prove a material change in circumstances for two reasons. First, she contends that he failed to prove a decrease in his income by a legal certainty. Rather, she contends that when he filed the rule to modify the spousal support (November 2009) he was actually making more money than when he entered the consent judgment (August 1998). Although Mr. Poore was unemployed when he filed his rule to modify, he received a severance package equal to six months of his prior salary, which was $98,000.00 a year. Moreover, he recommenced employment in January 2010 earning $60,000.00 a year. As a result, she contends that when he filed his rule to modify his annual income actually was equal to at least $98,000.00, which is more than he was making when the consent judgment was entered.

Second, Ms. Williams contends that the trial court erred in considering Mr. Poore’s financial support of Christopher Poore, the parties’ major son, as a living expense. In support, she cites the well-settled jurisprudence holding that the financial support of a major child is not considered a living expense of a party for purposes of determining spousal support. Green v. Green, 432 So.2d 959 (La.App. |134th Cir.1983). Regardless, she emphasizes that Mr. Poore testified that he was no longer financially supporting Christopher Poore when he filed his rule to modify.

Mr. Poore counters that the trial court correctly found a material change in circumstances based on the evidence regarding his loss of his job, his monthly income and expenses, and his financial troubles as a result of helping his major son. He further contends that the trial court also correctly considered that Ms. Williams had not worked in ten years and correctly concluded that she had an earning capacity because she was not disabled in such a way as to prevent her from working.

In finding Mr. Poore met his burden of establishing a material change in circumstances, the trial court weighed the credibility of the witnesses — Mr. Poore and Ms. Williams — and properly considered all of the pertinent Article 112 factors. Insofar as Mr. Poore’s income, the record reflects his present income at Travelcorp is only $60,000.00 a year. Although he received a one-time severance from Carlson when he was terminated from his previous employment, the severance is not part of his current income. Moreover, he used a large portion of the severance to catch up on the arrearages that he owed Ms. Williams, which in September 2009 totaled $8,750.00. We further note that Mr. Poore testified that since 1998 his expenses have dramatically increased and that his current monthly expenses exceed his current monthly income.

The relevance of Mr. Poore’s support of his major son was that it was identified as the primary cause of Mr. Poore’s large credit card balances. However, |uas Ms. Williams acknowledges, when Mr. Poore filed his motion to modify the spousal support, he was no longer financially supporting their major son. At the time of the hearing, Ms. Williams testified that she was providing financial support to them son. Given both parties acknowledge that they have each financially supported their major son, this factor, even if considered, is neutral.

One of the Article 112 factors the trial court could have considered was the age of the parties. Given her age — sixty-three at the time of the hearing — Ms. Williams acknowledged that she was eligible to apply for Social Security benefits. However, she testified that she elected to wait until age sixty-eight or seventy in order to collect higher Social Security benefits. On the other hand, one of sources of Mr. Poore’s current income is his Social Security benefits.

Another Article 112 factor the trial court could have considered is the lengthy duration of the marriage — thirty-three years. Although this factor initially may have supported a spousal support award to Ms. Williams to help her adjust, we find, as Mr. Poore asserted in his motion, that “[t]he period of time for the recipient [Ms. Williams] to adjust to the divorce is long past due.” In this regard, we note that both parties acknowledged that Mr. Poore has paid Ms. Williams approximately $200,000.00 in spousal support over the last decade.

In sum, the record reflects that the trial court, in accord with La. C.C. art. 112, considered all the relevant factors testified to in court by the parties and correctly concluded that Mr. Poore met his burden of establishing a material change in circumstances. However, “[a] finding of change in circumstances does |1snot automatically result in a modification or termination of support.” Mizell v. Mizell, 40,-601, p. 3 (La.App. 2 Cir. 1/25/06), 920 So.2d 927, 929. Rather, the effect of a finding of a change in circumstances is to “shift the burden to the party opposing the modification or termination of alimony to prove need and the relevant [Article] 112 factors.” Id. The next issue we must address is whether, as Ms. Williams contends, the trial court erred in determining her need was only $700.00 per month and that she had the ability to work.

Need and ability to work

Ms. Williams contends that she established her need through her testimony that she was unemployed, that her principal source of income was the spousal support of $1,500.00 a month, and that her expenses totaled $2,607.00 a month. She contends that the trial court’s findings that her need was only $700.00 a month and that she was able to work were erroneous in two respects.

First, she contends that the trial court erred in relying on the fact she had total assets of $244,900.00. In support, she cites the principle that it is unjust to punish a former spouse for her prudent handling of. her financial affairs. Stolier v. Stolier, 357 So.2d 1334 (La.App. 4th Cir.1978). Contrary to Ms. Williams’ contention, the trial court’s consideration of the fact that she had significant assets was not improper. A parties’ means, including the liquidity of those means, is an Article 112 factor. See Voyles v. Voyles, 04-1667, p. 5 (La.App. 3 Cir. 5/4/05), 901 So.2d 1204, 1206 (noting that “[a]ll relevant factors listed in La.Civ.Code art. 112 are to be considered by the trial court in determining the entitlement, amount and 11fiduration of the award”); see also Davis v. Davis, 445 So.2d 121, 122 (La.App.2d Cir.1984)(noting that Stolier, supra, was decided before the Legislature amended the pertinent divorce article (then La. C.C. art. 160) to include the liquidity of assets and other factors).

Second, Ms. Williams contends that the trial court erred in excluding from evidence her exhibit — an uncertified letter from her treating physician, Dr. Billings— regarding her mental condition and inability to work. The trial court correctly ruled that the uncertified correspondence from Ms. Williams’ treating physician could not be introduced into evidence. In so ruling, the trial court expressly indicated that if the correspondence was certified it would have been admissible. Given the lack of proper evidence of her inability to work, the trial court found that “Ms. Williams is not disabled in such a manner that would prevent her from working.”

The trial court’s ruling excluding the uncertified letter and imputing income to Ms. Williams for purposes of modifying the spousal support award is supported by the jurisprudence. Williams v. Williams, 97-2245, p. 7 (La.App. 4 Cir. 4/11/01), 803 So.2d 50, 54. In Williams, supra, this court outlined the following pertinent principles:

• “A spouse claiming the inability to work for the purpose of computing alimony bears the burden of proving that disability by a preponderance of the evidence;”
• The spouse’s “own self-serving testimony regarding his or her inability to work is insufficient proof of the inability;”
| it* The spouse claiming such an inability must present corroborating evidence, such as a certified doctor’s report or a doctor’s expert testimony;
• “Except 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;”
• When a non-working spouse fails to establish an inability to work, the trial court is required to impute some income to that spouse; and
• “In determining the amount of income to impute to such a non-working spouse claiming alimony, the trial court should consider that spouse’s employment history, physical and mental health, age, and education. La. C.C. art. 112.”

In this case, Ms. Williams’ testimony that she was diagnosed as bipolar and manic depressive was insufficient to establish a disability that rendered her unable to work. Nor was this an obvious mental or physical disability. Given Ms. Williams’ failure to introduce proper evidence of her inability to work, the trial court was required to impute income to her by considering the relevant Article 112 factors. Considering all the relevant factors, including the assets of the parties and Ms. Williams’ earning capacity, the record supports the trial court’s reduction of Ms. Williams’ spousal support to $700.00 per month.

DECREE

For the forgoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.

      . One of their major children is Christopher Poore.

      . The trial court denied Ms. Williams’ request to introduce a copy of a letter from Dr. Billings because the letter was not certified. A copy of the letter was included in the record as a proffer. Ms. Williams also testified that she was diagnosed by another physician as having emphysema, and she proffered a copy of a letter from her other physician stating she had been diagnosed with COPD (Chronic Obstructive Pulmonary Disease) in 2004 and was stable with medication. She further testified that she had cancer on her leg, which had been removed.

      . At the time of the hearing, Mr. Poore only owed spousal support for the six month period of November 2009 through April 2010. Although in September 2009 Mr. Poore was found in contempt for failing to pay the spousal support and the arrearages at that time totaling $8,750.00 were made executory, Mr. Poore testified at the hearing that when he received his severance package he paid in full the previous arrearages.