author: PICKETT, Judge.

text:
    Gail SAMPSON v. AVOYELLES PARISH SCHOOL BOARD.
    No. 11-1248.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 2012.

      Eugene A. Ledet, Jr., Dalrymple & Le-det, LLC, Alexandria, LA, for Plaintiff-Appellee, Gail Sampson.
    Stacy C. Auzenne, Auzenne Law Firm, L.L.C., Alexandria, LA, for Defendant-Appellant, Avoyelles Parish School Board.
    Court composed of JIMMIE C. PETERS, ELIZABETH A. PICKETT, and JAMES T. GENOVESE, Judges.
   PICKETT, Judge.

|,Employer appeals four awards of penalties and attorney fees to workers’ compensation claimant. We affirm as amended, reverse in part, and render.

FACTS

On November 11, 2006, Gail Sampson tripped and fell on the strap of a student’s backpack while employed by the Avoyelles Parish School Board (APSB). When she fell, Ms. Sampson injured her knees and her left shoulder. The APSB began paying her indemnity benefits and her medical expenses.

Beginning in 2009, issues arose with regard to the APSB’s refusal to authorize: (1) the refill of a prescription for Savella, a treatment for fibromyalgia; (2) a prescription for Amitiza, a treatment for constipation; (3) an MRI of Ms. Sampson’s left knee; and (4) Ms. Sampson’s request to seek treatment from a second orthopedic, physician. Ms. Sampson filed a Disputed Claim for Compensation (1008), seeking medical treatment, her choice of a physician, and penalties and attorney fees for the APSB’s refusal to authorize the requested medical treatment.

After a trial, the workers’ compensation judge (WCJ) determined the APSB did not reasonably controvert Ms. Sampson’s claims and awarded her four $2,000 penalties and attorney fees in the amount of $7,500. The APSB appealed; Ms. Sampson answered the appeal, seeking an additional award of attorney fees for worked performed by her attorney on appeal.

ASSIGNMENTS OF ERROR

The APSB assigns as error:

1) The WCJ committed manifest, reversible error when it awarded Ms. Sampson a penalty of $2,000 for failure to pay for the medication, |2Savella, when this medication was prescribed solely to treat fibromyalgia, a condition that pre-existed her job accident.
2) The WCJ committed manifest, reversible error when it awarded Ms. Sampson a penalty of $2,000 for failure to pay for the constipation medication, Amitiza, when constipation medications had been prescribed pre-accident.
3) The WCJ committed manifest, reversible error when it awarded Ms. Sampson a penalty of $2,000 for failure to authorize a change in the choice of orthopedic surgeon, when her first choice had discharged her because she presented no objective symptoms or evidence of pain.
4) The WCJ committed manifest, reversible error when it awarded Sampson a penalty of $2,000 for failure to authorize an MRI prescribed by a nurse practitioner, when the MRI was found not medically necessary by her treating orthopedic surgeon and a second medical opinion orthopedist.
5) The WCJ committed manifest, reversible error when it ordered the APSB to pay attorney fees in the amount of $7,500, court costs, and legal interest when no evidence was offered regarding the time spent on the case or the work done to earn the attorney fees.

DISCUSSION

Penalties and Attorney Fees

When an employer refuses to authorize medical treatment for an eligible workers’ compensation claimant, the claimant is entitled to penalties and attorney fees unless the employer reasonably controverts the claim. La.R.S. 23:1201(F); Leonards v. Carmichael's Cashway Pharmacy, Inc., 09-1424 (La.App. 3 Cir. 5/5/10), 38 So.3d 571, writ denied, 10-1738 (La.10/29/10), 48 So.3d 1094. A claim is reasonably controverted if the employer establishes that it had “some valid reason or evidence” for denying the claim. Trahan v. City of Crowley, 07-266, p. 5 (La.App. 3 Cir. 10/3/07), 967 So.2d 557, 561, writs denied, 07-2462, 07-2471 (La.2/15/08), 976 So.2d 185, 187, respectively. Penalties are stricti juris. Accordingly, they should only be imposed when the evidence shows the employer’s refusal to | sauthorize medical treatment was without just cause and not in good faith. Mouton v. Gulfstream Servs., 08-1186 (La.App. 3 Cir. 5/6/09), 11 So.3d 1135.

Awards of penalties and attorney fees by a WCJ are subject to the manifest error/clearly wrong standard of review. Ducote v. La. Indus., Inc., 07-1536 (La.App. 3 Cir. 4/2/08), 980 So.2d 843.

Savella Prescription

Prior to her fall, Ms. Sampson had been diagnosed with fibromyalgia for which she had been treated for over ten years. The APSB contends the WCJ’s award of a penalty for its refusal to authorize refills of Ms. Sampson’s prescription for Savella is manifestly erroneous because it was prescribed for the “treatment of [her] pre-existing fibromyalgia ... [which is] totally unrelated to the 2006 Bunkie Elementary accident.” The APSB also asserts the prescription was properly denied because Ms. Sampson was unable to take the prescription due to nausea. These arguments ignore the fact that an employer takes his employee as he finds him, i.e., he is responsible for the aggravation of an employee’s pre-existing condition caused by an on the job accident. Lynch v. A Door Works, Inc., 11-414 (La.App. 3 Cir. 10/5/11), 72 So.3d 1033, writ denied, 11-2457 (La.1/13/12), 77 So.3d 965.

In an attempt to support these claims, the APSB references the deposition and records of Dr. Miguel Garcia, who treats Ms. Sampson for fibromyalgia. Contrary to its arguments, the referenced evidence supports the WCJ’s finding. Dr. Garcia explained in his deposition that he had treated Ms. Sampson for more than ten years for fibromyalgia and that in 2006, her condition had improved to the extent that she was able to return to work at Bunkie Elementary. Dr. Garcia further explained, however, that Ms. Sampson’s improvement was short lived, as “she had an exacerbation of her fibromyalgia” after she tripped and fell at the school.

|4With regard to Ms. Sampson’s ability to tolerate Savella, Dr. Garcia testified that Ms. Sampson began taking Savella on July 28, 2009, and that a prescription for the medication issued to her on October 15, 2009, was not authorized to be filled. Dr. Garcia testified that Ms. Sampson discontinued the Savella because she “couldn’t do it anymore” but that did not occur until October 28, 2010.

The APSB asserted in correspondence to Ms. Sampson’s attorney that her requests for refills of Savella were properly denied because any exacerbation of fibro-myalgia “should have settled down” at the time the requests were made. This assertion was disproved by the APSB’s own adjustor, Katie Hart, who acknowledged that she did not possess any medical documentation or medical opinion that the exacerbation of Ms. Sampson’s fibromyalgia had or “should have settled down” when the request was made. Accordingly, this assignment lacks merit.

Amitiza Prescription

The APSB next argues the WCJ’s award of a penalty for its failure to approve refills of a prescription for Amitiza, a medication for constipation, constitutes manifest error because Ms. Sampson had been prescribed narcotic pain medication which is known to cause constipation, as well as constipation medication prior to her fall.

Dr. Stephen Katz, a pain specialist who treated Ms. Sampson for the pain in her knees and left shoulder, prescribed Amiti-za in June 2009. During his treatment, Dr. Katz prescribed some of the same pain medications Dr. Garcia prescribed for Ms. Sampson as treatment her for fibro-myalgia. Dr. Katz’s medication regimen differed from Dr. Garcia’s, however, in that he prescribed higher daily doses of narcotic pain medications than Dr. Garcia prescribed and 1 ¿often adjusted the combinations and doses of the medications he prescribed. In light of this evidence, the fact that Ms. Sampson was prescribed narcotics which can cause constipation pri- or to her fall and medication to relieve such constipation is not a valid reason for not authorizing the Amitiza prescribed by Dr. Katz. This assignment lacks merit.

Knees — Second Opinion and MRI

The APSB assigns error with the WCJ’s awards of penalties for its refusal to authorize Ms. Sampson to seek treatment with a second orthopedist and refusal to authorize an MRI recommended by a nurse practitioner. It contends the refusals were justified because Dr. David Pope, her treating orthopedist, and Dr. Gordon Mead, an orthopedist who rendered a second medical opinion at its request, opined that she had reached maximum medical improvement (MMI) in April 2009.

Dr. Garcia recommended an MRI of Ms. Sampson’s left knee in October 2009, but the APSB would not authorize it. Then, in December 2009, Ms. Sampson sought treatment at a walk-in clinic for her knee pain. The nurse practitioner who examined her ordered an MRI which Ms. Sampson had performed. After reviewing the MRI report which identified chondromala-cia in Ms. Sampson’s left knee, the nurse practitioner recommended that Ms. Sampson be evaluated by Dr. Louis Blanda, another orthopedic surgeon who had previously treated Ms. Sampson. Dr. Garcia agreed with the recommendation.

The APSB points to Dr. Pope’s testimony that in November 2008, Ms. Sampson “was basically back to baseline” with regard to her knee pain, asserting the phrase referenced her status before the fall. This excerpt misrepresents Dr. Pope’s testimony, which was: “[I]n November 2008, she was ^basically back to baseline with ... recurrence and continued pain ... at the level she had prior to the injection therapy.” The injection therapy referenced by Dr. Pope was therapy ordered by him after Ms. Sampson’s fall. Hence, his testimony shows that the steroid injections in each of Ms. Sampson’s knees provided her only temporary relief from her knee pain and that the baseline he referenced was not pre-fall as represented by the APSB.

Nonetheless, Dr. Pope felt there was no other treatment he could provide Ms. Sampson that would relieve her knee pain. He last saw her in April 2009. At that time, he felt her left shoulder was status quo, but she used a cane for walking and complained of achiness in her knees when she stood up or sat down. He referred her to Dr. Katz for pain management.

Dr. Pope testified in his deposition that he did not disagree with Dr. Mead’s opinion that Ms. Sampson had reached MMI, explaining that after Dr. Mead’s second opinion, he felt “our hands were tied.” As a whole, Dr. Pope’s testimony shows that because the December 2009 MRI of Ms. Sampson’s left knee did not show the need for surgical repair and because the APSB would not authorize any additional physical therapy, he had nothing else to offer her. Because he and Dr. Mead were of the same opinion, Dr. Pope did not believe a referral to another orthopedist would benefit Ms. Sampson or that additional testing would benefit her. Dr. Pope reviewed the December 2009 MRI report and testified that it did not change his mind that surgical intervention would not help Ms. Sampson.

Dr. Mead examined Ms. Sampson on May 7, 2008, and November 17, 2008, for a second opinion regarding her orthopedic status. At the November 17, 2008 examination, Dr. Mead felt Ms. Sampson’s complaints were not warranted by her orthopedic condition. As to her knees, he observed that “she walked without ^difficulty and got up on and down off the examining table without any apparent difficulty” but “complained of a lot [of] trouble getting up and down.” On examination, Ms. Sampson did have popping in her knees when she flexed or extended her knees; however, Dr. Mead explained that popping does not mean “anything” and that “a lot of people’s knees pop.” He also observed that she did not have popping on flexion or extension of her knees when he examined her on May 7, 2008.

Counsel for the APSB questioned Dr. Mead about the results of Ms. Sampson’s December 2009 MRI, specifically chondro-malacia. Dr. Mead explained that chon-dromalacia is the “softening of the cartilage under the kneecap, or in a joint” which “can cause a popping sensation.” He continued, stating: “a lot of people feel that it can cause pain, but there’s no obvious mechanism to explain why it causes the pain” because “there are no nerve endings in cartilage and cartilage does not have sensation.” According to Dr. Mead, arthroscopy does not help chondromalacia unless the patient has locking symptoms, which Ms. Sampson did not have, and it does not relieve pain.

After examining Ms. Sampson, Dr. Mead was of the opinion that most of her problems at that time stemmed from depression and fibromyalgia. In his view, “her complaints were way out of proportion to what [he] would normally see in people who have these two problems, shoulder and knees. It just seemed kind of over the top.” He thought Ms. Sampson’s complaints warranted pain management and treatment for chronic depression, but he did not believe her left shoulder or knee complaints warranted additional physical therapy or orthopedic treatment. Dr. Mead opined that Ms. Sampson had reached maximum medical improvement as to her left shoulder and her knees and that she could return to work with | ^restrictions on standing, walking, squatting, climbing, lifting, and work above shoulder level.

In addition to chondromalacia, the December 2009 MRI of Ms. Sampson’s left knee showed “Chondral Assuring of the patellar ridge with subchondral cyst formation and reactive marrow changes.” Dr. Garcia opined in a note dated August 11, 2010, that based on the 2009 MRI and continued problems with her left knee, Ms. Sampson should see an orthopedic surgeon to “look into” the possibility of arthroscopic surgery on her left knee. He also testified in his December 2010 deposition that changes shown on the MRI are changes that can cause pain. Notwithstanding, he went on to testify: “If you have it or I have it, it will be, oh, my knee bothers me. In a patient who has significant fibromyal-gia with significant supratentorial disabilities and psychological disabilities it may be just like if you had bone against bone.”

We have considered the WCJ’s reasoning for finding the APSB did not controvert Ms. Sampson’s claim that it should have paid for the MRI of her left knee and allowed her to seek treatment with another orthopedic surgeon in light of the testimonies of Drs. Pope, Mead, and Garcia, as well as Dr. Garcia’s August 11, 2010 note. As reflected above, Dr. Garcia’s December 2010 testimony could be interpreted as echoing Dr. Mead’s testimony that Ms. Sampson’s continuing knee complaints were probably related to her fibromyalgia and continuing depression.

Drs. Garcia’s and Mead’s testimonies establish that Ms. Sampson’s fibromyalgia complicated these issues. Importantly, Dr. Garcia’s testimony supported Dr. Mead’s opinion that Ms. Sampson’s continued complaints of pain were related to her fibromyalgia and did not warrant additional orthopedic treatment. We are mindful that Dr. Garcia is Ms. Sampson’s treating physician, |9but he is not an orthopedist. Dr. Pope is an orthopedist and was also Ms. Sampson’s treating physician for her left shoulder and knees. Therefore, we find the WCJ committed manifest error in concluding the APSB did not reasonably controvert the need for an MRI and an orthopedic consult and reverse the awards of penalties for the APSB’s refusal to authorize these requests.

Our reversal of these penalties is not a reversal of the WCJ’s conclusion that Ms. Sampson is entitled to this additional treatment. Ms. Sampson’s fibromyalgia and the opinions of Drs. Pope and Mead complicated these issues with regard to the issue of penalties. However, Ms. Sampson had been complaining of knee pain for approximately four years and had not seen an orthopedist for over sixteen months when Dr. Garcia recommended that the orthopedic consult be approved.

In making this determination, we are mindful that a claimant’s burden of proof for the entitlement to benefits is different from an employer’s defending the imposition of a penalty. As stated above, an employer reasonably controverts a claim if it shows it had a valid reason for denying the claim. On the other hand, a workers’ compensation claimant need only prove by a preponderance of the evidence that requested medical treatment is reasonable and necessary. Vidrine v. Teche Elec. Supply, L.L.C., 08-1287 (La.App. 3 Cir. 4/1/09), 6 So.3d 1012, writ denied, 09-964 (La.6/19/09), 10 So.3d 739.

Attorney Fees

In its assignment of error on this issue, the APSB asserted the WCJ’s award of attorney fees constituted reversible error because Ms. Sampson did not establish the time spent or the work done by her attorney in preparing and presenting her case. Yet, it argues in brief only that the WCJ erred in awarding attorney fees because no penalties are warranted. Accordingly, we consider the argument stated | min the assignment of error to be waived and address only the argument briefed. See Uniform Rules — Courts of Appeal, Rule 2-12.4.

We have determined two of the four penalties awarded were awarded erroneously and must be reversed. Accordingly, we proportionately reduce the attorney fees awarded to Ms. Sampson from $7,500 to $3,750. For work performed on appeal by Ms. Sampson’s attorney, we award $2,500.

DISPOSITION

The penalties awarded by the WCJ for the Avoyelles Parish School Board’s refusal to authorize an MRI of Ms. Sampson’s left knee and treatment by a second orthopedic surgeon are reversed, and the WCJ’s award of attorney fees is amended from $7,500 to $3,750. The judgment of the WCJ is affirmed in all other respects. Attorney fees in the amount of $2,500 are awarded for work performed on appeal. Costs of this appeal are $633.75; each party is assessed one-half of this amount.

AFFIRMED IN PART AS AMENDED; REVERSED IN PART; AND RENDERED.

      . The MRI was paid for by Medicare.


source: Caselaw Access Project

author: GENOVESE, Judge.

license: Public Domain

text:
    Nathan Madro BANDARIES v. Joanna CASSIDY.
    No. 11-1267.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 2012.

      Nathan Madro Bandaries, M. Claire Trimble, Madro Bandaries, PLC, New Orleans, LA, Billy L. West, Natchitoches, LA, for PlaintiffAppellant, Nathan Madro Bandaries.
    Fred L. Herman, Thomas J. Barbera, Mayra L. Scheuermann, New Orleans, LA, J. Chris Guillet, Corkern, Crews, & Guil-let, Natchitoches, LA, for Defendant/Ap-pellee, Joanna Cassidy.
    Court composed of JIMMIE C. PETERS, ELIZABETH A. PICKETT, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

| plaintiff, Nathan Madro Bandaries, appeals the trial court’s judgment dismissing his lawsuit against Defendant, Joanna Cas-sidy, pursuant to an exception of lis pen-dens, and ordering Mr. Bandaries to pay $2,500.00 in sanctions to Ms. Cassidy plus costs. Ms. Cassidy has answered the appeal seeking damages for frivolous appeal. For the following reasons, we affirm and render.

FACTS AND PROCEDURAL HISTORY

Mr. Bandaries filed a Petition Seeking Return of Funds Advanced to Defendant to Maintain Her Real Property, in the Natchitoches Parish City Court, naming Ms. Cassidy as a Defendant. Ms. Cassidy responded with an Exception of Lis Pen-dens and Motion for Sanctions wherein she asserted:

That the sums prayed for in the instant suit are already at issue in a case between the same parties herein pending in the Civil District Court for the Parish of Orleans, namely, Madro Bandaries v. Joanna Cassidy, No. 2010-2840, Division “E” c/w Joanna Cassidy v. Madro Bandaries, No. 2010-2781, Division “I.” (hereinafter “CDC suit”). Additionally, the sums prayed for in the instant suit were also prayed for in Bandaries v. Cassidy, 10th JDC No. 83345, Section “B”, (hereinafter “10th JDC suit”), however, that case was dismissed on an Exception of Lis Pendens.

Additionally, in support of her request for sanctions, Ms. Cassidy asserted that “[t]his lawsuit constitutes an abuse of process as it is clearly intended to harass and impoverish Ms. Cassidy” contending that these actions justified the imposition of sanctions against Mr. Bandaries.

Following a hearing on November 10, 2010, the trial court sustained Ms. Cassi-dy’s exception of Us pendens, dismissed the claims asserted against her, and ordered Mr. Bandaries to pay her $2,500.00 in sanctions plus costs.

| ^ASSIGNMENTS OF ERROR

On appeal, Mr. Bandaries asserts that the trial court erred in sustaining Ms. Cassidy’s exception of lis pendens and in imposing sanctions against him. In her Answer to Appeal, Ms. Cassidy seeks an award of damages for frivolous appeal.

LAW AND DISCUSSION

Lis Pendens

The basis for an exception of lis pendens is La.Code Civ.P. art. 531, which provides:

When two or more suits are pending in a Louisiana court or courts on the same transaction or occurrence, between the same parties in the same capacities, the defendant may have all but the first suit dismissed by excepting thereto as provided in Article 925. When the defendant does not so except, the plaintiff may continue the prosecution of any of the suits, but the first final judgment rendered shall be conclusive of all.

Thus, three requirements must be satisfied for dismissal of a suit pursuant to an exception of lis pendens. “First, there must be two or more suits pending. Second, the suits must involve the same transaction or occurrence. Third, the suits must involve the same parties in the same capacities.” Travcal Properties, LLC v. Logan, 10-323, p. 4 (La.App. 3 Cir. 10/6/10), 49 So.3d 466, 469.

In the instant matter, Mr. Bandar-ies admits in his brief to this court that he does not dispute the fact that two suits are pending. The two suits are the present action and the CDC suit. We note that at the time the present exception of lis pen-dens was granted, the trial court made reference to the 10th JDC suit. That suit had been dismissed by the Tenth Judicial District Court pursuant to an exception of lis pendens, but was on appeal and not yet definitive.. That judgment has since been affirmed by this court in Bandaries v. Cassidy, 11-161 (La.App. 3 Cir. 6/1/11), 66 So.3d 564. As a reviewing court, we must consider the exception of “lis pen-dens in the procedural and factual climate that exists at the time of review, rather than at the time of the trial court judgment.” Am. Nat'l Gen. Ins. Co. v. Howard, 07-1527, p. 4 (La.App. 3 Cir. 4/30/08), 981 So.2d 863, 866 (quoting Brooks Well Servicing, Inc. v. Cudd Pressure Control, Inc., 36,723, p. 6 (La.App. 2 Cir. 6/27/03), 850 So.2d 1027, 1031, writ denied, 03-2606 (La.12/12/03), 860 So.2d 1157). Therefore, when considering the remaining two requirements of La.Code Civ.P. art. 531, we shall do so relative to the instant action and the CDC suit.

Mr. Bandaries argues that “the ‘same transaction or occurrence’ requirement of the law suit at issue and the [CDC] suit are not met[.]” He argues that “the two actions rest entirely on separate and distinct causes of action, thus barring lis pendens.” Mr. Bandaries notes that by virtue of an amendment of his pleadings in the CDC suit, that suit is limited to a claim for legal services rendered, while in this action the claims arise in tort. .

The trial court, in its Reasons for Judgment, stated as follows:

There is no question that both [the CDC suit and the 10th JDC suit] were between the same parties and were based on the same transactions or occurrences as this lawsuit in Natchitoches City Court. Based on the [P]laintiffs allegations in the three lawsuits, Mr. Bandaries began to assist Ms. Cassidy both as a lawyer and a friend both with advice and with money in February, 2009. This dual assistance continued until February or March 2010. The [CDC suit, the 10th JDC suit,] and the instant suit all request a money judgment from the [Defendant for the alleged financial assistance given by [P]laintiff to [D]efendant during the time period described above. The specific sums sought in this City Court lawsuit were also prayed for in the other two.

Both the trial court and this court reached the same conclusion when considering the exception of lis pendens filed in the 10th JDC suit. When addressing the issue of “the same transaction or occurrence” this court opined:

|4The trial court found as follows: “[B]oth lawsuits concern the exact same transaction and occurrence. Both involve the same series of loans by Ban-daries to [ ] Cassidy and Cassidy’s refusal to repay those loans. Both lawsuits seek the same amount and both describe the same circumstances leading up to and following the loans.”

Since the law of res judicata is applicable to determine whether an exception of lis pendens should be granted, we look to La.R.S. 13:4281 to determine what is intended by the terms “transaction or occurrence.” That statute provides, in pertinent part that “[i]f the judgment is in favor of the defendant, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and the judgment bars a subsequent action on those causes of action.” Comment (b) to the statute states that:

R.S. 13:4231 also changes the law by adopting the principle of issue preclusion. This principle serves the interests of judicial economy by preventing relitigation of the same issue between the same parties. For example, if a plaintiff brings an action against a defendant to recover for injuries sustained in an automobile accident, the judgment rendered in that action would preclude relitigation of any issue raised in a subsequent action brought by defendant against plaintiff to recover for his injuries sustained in the same accident provided that the issue had been actually litigated and essential to the judgment, e.g., fault of either party. This proviso insures that the issue would have been fully developed by the parties in the first action and makes it fair to hold the parties bound to that initial determination. Because a judgment rendered in the plaintiffs action can also have preclusive effect on an action by the defendant, Code of Civil Procedure Article 1061 has been amended to require the defendant to assert by reconventional demand all causes of action that he may have against the plaintiff that arise out of the transaction or occurrence that is the subject matter of the principal action.
Applying this rule to the action before us, all causes of action arising out of the transaction or occurrence that is the basis of the suit are subject to challenge for lis pendens, regardless of whether the claim is made on the basis of unjust enrichment, contract, or other cause of action arising out of the same occurrence. Further, the same issues must be litigated in both actions. Accordingly, we find that the trial court correctly found that both suits arise out of the same transaction or occurrence.

Bandaries, 66 So.3d at 566-67.

We reach the same conclusion herein. Each of these suits arises from the same interactions between Mr. Bandaries and Ms. Cassidy. In each, Mr. Bandaries seeks recompense for monies he allegedly loaned to Ms. Cassidy for which he has not been repaid. We agree with Ms. Cassidy that “[t]he sums sought in [this] City Court case are merely a subset of those sought in the CDC and 10th JDC cases.” Mr. Bandaries’ effort to distinguish this suit from the CDC suit by limiting the type of relief sought does not defeat lis pendens. Spallino v. Monarch Sign Co., 00-447 (La.App. 3 Cir. 10/11/00), 771 So.2d 784. Clearly, the instant litigation and that in the CDC suit involve “the same transaction or occurrence.”

Lastly, Mr. Bandaries contends that the two suits do not involve “the same parties in the same capacities.” He argues that “[i]n the Orleans suit, [he] appears in his capacity as an agent of a profession [sic] law corporation,” whereas in this suit he “is an individual[;]” thus, the identity of parties requirement is not met. We disagree.

Identity of parties does not mean the parties must be the same physical or material parties, but they must appear in the suit in the same quality or capacity. Morris v. Haas, 95-75 (La.App. 5 Cir. 5/80/95), 659 So.2d 804, 810, writ denied, 95-2519 and 95-2545 (La.12/15/95), 664 So.2d 441.
[T]he preclusive effect of a judgment binds the parties to the action and nonparties who are deemed the “privies” of the parties in these limited circumstances: (1) the nonparty is the successor in interest of a party; (2) the nonparty controlled the prior litigation; or (8) the nonparty’s interests were adequately represented by a party to the action who may be considered the “virtual representative” of the nonparty because the interests of the party and the nonparty are so closely aligned.... The concepts of control and virtual representation are narrowly construed and are not satisfied merely by showing that the party and the nonparty have common or | (¡parallel interests in the factual and legal issues presented in the respective actions.
Hudson v. City of Bossier, 33,620 (La.App. 2 Cir. 8/25/00), 766 So.2d 738, 743-744, writ denied, 00-2687 (La.11/27/00), 775 So.2d 450.
The application of res judicata does not require that the parties be actually the same physical parties, but only that they be the same parties in the legal sense of the word.

United Gen. Title Ins. Co. v. Casey Title, Ltd, 01-600, pp. 10-11 (La.App. 5 Cir. 10/30/01), 800 So.2d 1061, 1067.

We further note that this argument was also raised by Mr. Bandaries in the 10th JDC suit. Addressing the identity of parties requirement under La.Code Civ.P. art. 531 in that suit, we opined on appeal:

Plaintiff asserted at the hearing on the exception of lis pendens and reasserts to this court that this amendment served to distinguish the parties in the CDC action sufficiently from the parties in the 10th JDC action to preclude the grant of the exception of lis pendens.
The “identity of parties” prerequisite for res judicata does not mean that the parties must be the same physical or material parties, so long as they appear in the same quality or capacity. Berrigan v. Deutsch, Kerrigan & Stiles, L.L.P., 01-612, p. 6 (La.App. 4 Cir. 1/2/02), 806 So.2d 163, 167. The only requirement is that the parties be the same “in the legal sense of the word.” Id. at p. 6, 806 So.2d at 167.
Coury Moss, Inc. [v. Cowry, 07-1578, pp. 4-5 (La.App. 3 Cir. 4/30/08), 981 So.2d 936, 940, writ denied, 08-1174 (La.9/19/08), 992 So.2d 944],
In La. Cotton Ass’n Workers' Comp. Group Self-Ins. Fund v. Tri-Parish Gin Co., Inc., 624 So.2d 461, 464 (La.App. 2 Cir.1993), the court explained that “where the parties not only share the same quality as parties but, in essence, their identities are virtually merged into one, ... the parties are the same for the purposes of lis pendens.” In both the CDC and the 10th JDC cases, Plaintiffs are attempting to collect the same debt resulting from the same transactions from the same defendant. Plaintiff in one case is a law firm owned and operated by Plaintiff in the other case. We find that the parties not only share the same quality as parties, but they are virtually, if not actually, merged into one. Therefore, the trial court correctly found that the suits involve the same parties in the same capacities.

Bandaries, 66 So.3d at 567-68.

Again, we reach the same conclusion herein. Although Mr. Bandaries distinguishes his appearance in his personal capacity from his appearance in his capacity as an agent of the law firm, it remains true that “they are virtually, if not actually, merged into one.” Mr. Bandaries appears “in the same quality or capacity” in both suits despite his efforts to circumvent the identity of parties requirement of La.Code Civ.P. art. 531 so as to defeat another exception of lis pendens.

Based on the record, we find no error in the trial court’s dismissal of the present action on the grounds of lis pendens. The CDC suit was pending at the time the instant matter was filed in Natchitoches City Court. Both suits involve the same transaction or occurrence and involve the same parties in the same capacities. For these reasons, we affirm the trial court’s dismissal of the present action pursuant to the exception of lis pendens.

Sanctions

Mr. Bandaries asserts on appeal that the trial court erred in awarding $2,500.00 in sanctions. He argues that “he was not barred from filing another suit as the ‘dismissed suit’ [ (the 10th JDC suit) ] used for lis pendens purposes was dismissed without prejudice.” Because he was not procedurally precluded from filing the instant action, he concludes “there can be no sanctionable activity.” We disagree.

| Jn its Reasons for Judgment, the trial court discussed the exception of lis pen-dens which was granted in the 10th JDC suit; however, its imposition of sanctions was not based upon the disposition of that action. To the contrary, the trial court expressly noted that “[i]t is also clear from the various pleadings in this matter that there is much more going on in a personal way, either between [Mr. Bandaries] and [Ms. Cassidy] or [Mr. Bandaries], as a lawyer, and the lawyers for [Ms. Cassidy], than merely trying to get a money judgment.” The trial court then held “that [Mr.] Bandaries violated [La.Code Civ.P. art. 863] and that the petition in this matter was filed against [Ms. Cassidy] for the improper purpose of harassment and to increase her legal costs.”

Louisiana Code of Civil Procedure Article 863 provides:

A. Every pleading of a party represented by an attorney shall be signed by at least one attorney of record in his individual name, whose address shall be stated. A party who is not represented by an attorney shall sign his pleading and state his address.
B. Pleadings need not be verified or accompanied by affidavit or certificate, except as otherwise provided by law, but the signature of an attorney or party shall constitute a certification by him that he has read the pleading, and that to the best of his knowledge, Iflinformation, and belief formed after reasonable inquiry, he certifies all of the following:
(1) The pleading is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation.
(2) Each claim, defense, or other legal assertion in the pleading is warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law.
(3) Each allegation or other factual assertion in the pleading has evidentiary support or, for a specifically identified allegation or factual assertion, is likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.
(4) Each denial in the pleading of a factual assertion is warranted by the evidence or, for a specifically identified denial, is reasonably based on a lack of information or belief.
C. If a pleading is not signed, it shall be stricken unless promptly signed after the omission is called to the attention of the pleader.
D. If, upon motion of any party or upon its own motion, the court determines that a certification has been made in violation of the provisions of this Article, the court shall impose upon the person who made the certification or the represented party, or both, an appropriate sanction which may include an order to pay to the other party the amount of the reasonable expenses incurred because of the filing of the pleading, including reasonable attorney fees.
E. A sanction authorized in Paragraph D shall be imposed only after a hearing at which any party or his counsel may present any evidence or argument relevant to the issue of imposition of the sanction.
F. A sanction authorized in Paragraph D shall not be imposed with respect to an original petition which is filed within sixty days of an applicable prescriptive date and then voluntarily dismissed within ninety days after its filing or on the date of a hearing on the pleading, whichever is earlier.
G. If the court imposes a sanction, it shall describe the conduct determined to constitute a violation of the provisions of this Article and explain the basis for the sanction imposed.

The standard of appellate review of the imposition of sanctions is that of abuse of discretion. Bentley v. Fanguy, 09-822 (La.App. 3 Cir. 10/6/10), 48 So.3d 381, writ denied, 10-2854 (La.2/25/11), 58 So.3d 457 (citing Collins v. Ferrellgas, Inc., 96-810 (La.App. 3 Cir. 2/5/97), 689 So.2d 569). While we recognize that sanctions are not to be imposed lightly, we find no abuse of the trial court’s discretion in the imposition of $2,500.00 in sanctions in the present case. Accordingly, we affirm the judgment of the trial court ordering Mr. Ban-daries to pay $2,500.00 in sanctions to Ms. Cassidy.

Answer to Appeal

In her Answer to Appeal, Ms. Cassidy seeks damages for the filing of a frivolous appeal pursuant to La.Code Civ.P. art. 2164, which provides:

The appellate court shall render any judgment which is just, legal, and proper upon the record on appeal. The court may award damages, including attorney fees, for frivolous appeal or application for writs, and may tax the costs of the lower or appellate court, or any part thereof, against any party to the suit, as in its judgment may be considered equitable.

“Damages for frivolous appeals, like sanctions at the trial court level, are utilized to curtail the filing of appeals that are intended to delay litigation, harass another party, or those that have no reasonable basis in fact [or] law.” Johnson v. Johnson, 08-60, p. 5 (La.App. 4 Cir. 5/28/08), 986 So.2d 797, 801, writ not considered, 08-1418 (La.10/3/08), 992 So.2d 1001. Although we are mindful that La. Code Civ.P. art. 2164 must be strictly construed, “[f]rivolous appeal damages will be awarded if the appellant is trying to ‘delay the action’ or ‘if the appealing counsel does not seriously believe the law he or she advocates.’ Hester v. Hester, 97-2009, p. 5 (La.App. 4 Cir. 6/3/98), 715 So.2d 43, 46.” Johnson, 986 So.2d at 801. Additionally, “[a]n appeal may also be deemed frivolous if it does not present a ‘substantial legal question.’ Tillmon v. Thrasher Waterproofing, 00-0395, p. 8 (La.App. 4 Cir. 3/28/01), 786 So.2d 131, 137.” Johnson, 986 So.2d at 801.

InMr. Bandaries, who is an attorney, brought the instant action based on the same facts that were already the subject of two lawsuits which Ms. Cassidy was having to defend. One of those suits was dismissed on an exception of lis pendens, which for the most part was the same in substance as that asserted herein. Moreover, that dismissal was the subject of a prior opinion of this court in which we affirmed the dismissal. Notwithstanding, when the trial court granted the exception of lis pendens which was again raised in this action, Mr. Bandaries again appealed. Considering the foregoing, we find Mr. Bandaries’ actions in filing the present appeal to be delusive and disingenuous. It is readily apparent that his motivation is for no other purpose than to harass Ms. Cassi-dy and to cause her needless incurrence of additional legal expenses. Accordingly, pursuant to La.Code Civ.P. art. 2164, we find Mr. Bandaries’ appeal to be frivolous and that Ms. Cassidy is entitled to an award of damages for the filing of a frivolous appeal as prayed for.

DECREE

For the reasons assigned, the judgment of the trial is affirmed. Additionally, we render judgment herein in the amount of $2,500.00 in favor of Joanna Cassidy and against Nathan Madro Bandaries for the filing of a frivolous appeal. All costs of these proceedings are assessed to Nathan Madro Bandaries.

AFFIRMED AND RENDERED.

      . In an effort to persuade this court that sanctions were not warranted, Mr. Bandaries, in his brief to this court, also references a hearing on a motion to recuse the trial court judge. He states that “the transcript of the recusal hearing casts a pall on these proceedings" and contends that ‘‘[t]hey should be reviewed and weight given to any effect they may have had on the trial court’s decision in casting [him] with sanctions.” First, this court notes that the motion to recuse was filed, and the hearing was subsequently held after the imposition of sanctions by the trial court. Second, we note that Mr. Bandaries’ motion to recuse was denied, and he did not appeal that ruling. That matter is not before this court, and neither the grounds for that motion nor the testimony or other evidence adduced at the hearing are relevant to the present appeal. Thus, Mr. Bandaries’ discussion of same in his brief to this court is improper, and it is not considered by this court in its review of the imposition of sanctions by the trial court. Additionally, this court will not “factor[]” into its decision any "personal animosity” that may exist between counsel as is also urged by Mr. Bandaries in support of his contention that sanctions were not warranted. Any such information is outside of the record of these proceedings, and it is not considered by this court. "Appellate briefs are not part of the record, and this court has no authority to consider on appeal facts referred to in such briefs or in exhibits containing matters outside the record.” Haulcy v. Saint Gobain Containers, 39,405, p. 3 (La.App. 2 Cir. 3/9/05), 895 So.2d 803, 805-06 (citing Martin v. Comm-Care Corp., 37,600 (La.App. 2 Cir. 10/16/03), 859 So.2d 217, writ denied, 03-3188 (La.2/6/04), 866 So.2d 225).

      . See for example, Hester v. Hester, 97-1326, p. 9 (La.App. 4 Cir. 2/11/98), 708 So.2d 462, 466, wherein it was argued that ”[b]ecause a second motion for summary judgment was neither procedurally improper nor substantively precluded by a prior binding judgment, ... the imposition of sanctions was an abuse of discretion and unsupported by the record.” Rejecting this argument, the fourth circuit stated that it did not "find anything in the language of Article 863 or in the jurisprudence that supports [the] argument that the article provides for sanctions only when a litigant files a pleading that is expressly prohibited.” Id.


author: THIBODEAUX, Chief Judge.

text:
    Katherine Trahan ASHWORTH v. Larry Leroy ASHWORTH.
    No. 11-1270.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 2012.

      Honorable T. Barrett Harrington, Judge, Crowley City Court, Crowley, LA, Larry Thomas Richard, Miller & Richard, L.L.C., Rayne, LA, for Defendant/Appellant, Larry Leroy Ashworth.
    Burleigh G. Doga, Burleigh G. Doga, Ltd., Crowley, LA, for Plaintiff/Appellee, Katherine Trahan Ashworth.

      Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS, and BILLY HOWARD EZELL, Judges.
   THIBODEAUX, Chief Judge.

_[jThe defendant, Larry Ashworth, appeals from a judgment finding the plaintiff, Katherine Ashworth, free from fault in their divorce. He further appeals from a judgment awarding her $200.00 per month in final spousal support. Finding no abuse of discretion by the trial court, we affirm the judgments appealed.

I.

ISSUES

We must decide:

(1) whether the trial judge manifestly erred in finding no fault on the part of the plaintiff in the dissolution of the marriage;
(2) whether the trial judge abused her discretion and allowed hearsay testimony regarding the infidelity of the defendant; and,
(3) whether the trial judge abused her discretion in awarding the plaintiff $200.00 per month in spousal support.

II.

FACTS AND PROCEDURAL HISTORY

Katherine Ashworth sought a determination by the trial court that she was not at fault for the dissolution of her marriage to Larry Ashworth and that she was entitled to and in need of final periodic spousal support. Larry Ashworth contended that Katherine was at fault by reason of abandonment when she left the matrimonial domicile in 2007 and that she was not entitled to, or in need of, spousal support.

In September 2009, the trial court heard testimony and argument on the issue of abandonment and determined that Katherine was free from fault in the dissolution of the marriage. The issue of further entitlement to final spousal support was referred to an intake conference. Larry Ashworth filed an appeal of |athe trial court’s September 30, 2009 judgment. We dismissed the appeal as premature, as the judgment was not a final, appealable judgment (Ashworth v. Ashworth, 10-215 (La.App. 3 Cir. 10/6/10), 46 So.3d 1291), and we remanded the case to the trial court for further proceedings.

On January 24, 2011, the trial court held a hearing on Katherine’s request for final spousal support and issued a judgment finding that Katherine had shown need for, and that Larry had the ability to pay for, final spousal support in the amount of $200.00 per month. A judgment awarding that amount was signed on April 6, 2011, and is now being appealed by Larry Ash-worth, along with the September 30, 2009 judgment regarding Katherine’s lack of fault in the divorce.

Larry Ashworth assigns three errors by the trial court regarding: (1) the criteria for abandonment; (2) hearsay testimony; and (3) Katherine’s need for spousal support. We find no merit in Larry Ash-worth’s alleged errors, and we affirm the trial court for the following reasons.

III.

STANDARD OF REVIEW

An appellate court may not set aside a trial court’s findings of fact in the absence of manifest error or unless it is clearly wrong. Stobart v. State, Through DOTD, 617 So.2d 880 (La.1993).

In the area of domestic relations, much discretion must be vested in the trial judge and particularly in evaluating the weight of evidence which is to be resolved primarily on the basis of the credibility of witnesses. The trial judge having observed the demeanor of the witnesses is in the better position to rule on their credibility. The factual findings of the trial court are therefore to be accorded very substantial weight on review.

Pearce v. Pearce, 348 So.2d 75, 78 (La.1977) (citations omitted).

J¿V.

LAW AND DISCUSSION

The court -is given authority to award spousal support “to a party who is in need of support and who is free from fault prior to the filing of a proceeding to terminate the marriage.” La.Civ.Code art. 111. Fault that precludes spousal support includes misconduct of a serious nature that is “an independent contributory or proximate cause of the separation.” Pearce, 348 So.2d at 77. “Fault continues to mean misconduct [that] rises to the level of one of the previously existing fault grounds for legal separation or divorce.” La.Civ.Code art. Ill, Comment (C). Prior to its repeal, La.Civ.Code art. 138 provided grounds for separation as adultery, habitual intemperance, excesses, cruel treatment or outrages, making living together insupportable, and abandonment. Allen v. Allen, 94-1090 (La.12/12/94), 648 So.2d 359.

Here, Larry asserts that Katherine abandoned the matrimonial domicile and that it was error for the trial court to find her free from fault on the basis of Larry’s failure to ask her to return. This argument has no merit.

Abandonment

Abandonment can serve as grounds for fault only if one of the parties withdrew from the matrimonial domicile without lawful cause and constantly refused to return. La. Civ. Code art. 143 (repealed); Von Bechman v. Von Bechman, 386 So.2d 910 (La.1980); Mercer v. Mercer, 95-1257 (La.App. 3 Cir. 4/3/96), 671 So.2d 937. Under the second element, if a spouse has cause or justification for leaving, that spouse is not guilty of abandonment. Pardue v. Pardue, 509 So.2d 708 (La.App. 3 Cir.1987); Harrington v. Campbell, 413 So.2d 297 (La.App. 3 Cir.1982). Likewise, the third element, a constant refusal to return, is essential. For abandonment, “a party cannot merely show that the spouse left the common |4dwelling and then rely upon the spouse’s failure to prove a case grounded upon fault.” Von Bechman, 386 So.2d at 912 (citation omitted).

Katherine testified at trial that, approximately ten days before the separation, she happened to drive down a street and saw a woman sitting with Larry in his truck. When she stopped to ask what was going on, Larry told her not to ask questions and to go home. Katherine testified that she went to her mother’s house instead and was told by her brother and her niece that Larry was giving the girl in the truck, and her roommate, money in exchange for sex. Katherine testified that other people confirmed Larry’s infidelity. The couple argued, and Katherine subsequently told Larry to leave. Larry refused to go without a court order.

On October 31, 2007, Katherine packed and left the couple’s domicile. Larry admitted at trial that he never asked Katherine to return. By the end of January 2008, Larry had a girlfriend living with him in the domicile with whom he admitted sexual relations. He allowed her to remove his wife’s name from the mailbox and insert her own. In April 2008, Larry drove his girlfriend to his wife’s location and allowed her to drive Katherine’s car away in front of Katherine’s friends. Katherine testified that this event extinguished her hopes of reconciliation. Subsequently, Katherine filed for divorce on September 30, 2008.

It is undisputed that Katherine was the one to leave the couple’s domicile in October 2007. Therefore, the first criterion for abandonment is present. However, under the second criterion, if she had justification or lawful cause to leave, she is without fault for abandonment. Lawful cause which justifies the withdrawal from the common dwelling is that which is substantially equivalent to a cause giving the withdrawing spouse grounds for a separation. Langton v. Langton, 442 So.2d 1308 (La.App. 3 Cir.1983). However, under Von Bechman, 386 So.2d 910, there is no requirement that Katherine prove Larry’s adultery.

| ¡¡Katherine suspected adultery based upon what she had seen and heard. Katherine saw the woman with Larry in the truck and confronted them. She testified that her brother had a cell phone picture of the woman with Larry in his truck and a recording of Larry’s complaint when a simultaneous call came in from Katherine, which Katherine saw and heard. Katherine further testified that she had a picture indicating infidelity, but the camera was stolen. She also testified that the roommate of the woman in the truck had admitted giving Larry sexual favors for money. Larry admitted to seeing the “ladies” and paying utility bills for the roommate but denied sexual relations. His trial testimony was spurious and unconvincing.

The trial court found that, based upon what Katherine had seen, what she had been told, and what had been admitted, Katherine had a reasonable belief that Larry was being unfaithful and that she was justified in leaving. The trial court had also heard testimony by the roommate of the woman in the truck. Both women appeared to have drug problems, as the woman in the truck was in drug rehabilitation, and Larry admitted that he suspected the roommate of having drug problems. In court, the roommate denied sexual relations with Larry and denied talking to “Kat” in years. The judge made it clear that she did not believe that the roommate had spoken a word of truth.

Domestic issues turn largely on evaluations of witness credibility, and the trial judge has much discretion in such matters. Pearce, 348 So.2d at 78. Here, the trial court obviously made credibility determinations and found that Katherine’s withdrawal from the common dwelling was justified. This decision was within the trial court’s discretion.

The third criterion for abandonment is that the abandoned spouse desired the other spouse’s return and the exiting spouse constantly refused to return |fito the matrimonial domicile. See Von Bechman, 386 So.2d 910, and Adkins v. Adkins, 42,076 (La.App. 2 Cir. 4/11/07), 954 So.2d 920.

In Von Bechman, the Louisiana Supreme Court found that, where the husband changed the locks on the domicile a month after the wife’s departure, told her he was happier once she had left, and never requested that she return, the claim for abandonment was properly dismissed. Similarly here, both Katherine and Larry testified that Larry never asked Katherine to return and that he had a live-in girlfriend within three months of Katherine’s departure. Further, Larry’s actions regarding the girlfriend’s name on the mailbox and the girlfriend’s use of the family vehicle indicate that Larry did not desire Katherine’s return. These events occurred well before Katherine filed for divorce. Moreover, Katherine testified that Larry finally indicated that he did not know why he was unfaithful but that he was happy in his current situation.

Larry argues that Katherine told friends and family that he was having sex with crack whores and that this conduct made continuing to live with her insupportable; therefore, he never asked her to return. Larry puts the cart before the horse. A party is not precluded from receiving spousal support due to a reasonable, justifiable response to the other spouse’s initial acts. The Louisiana Supreme Court has held:

An association which implies adultery naturally brings on marital discord. A spouse who perceives infidelity may become quarrelsome or hostile. Such a reasonable reaction does not constitute legal fault. The suspicion of adultery causes the break-up and not the reaction. A spouse who reacts should not be precluded from receiving alimony solely because of his or her response.

Allen v. Allen, 648 So.2d at 362.

Larry testified that, until a week before the separation, he and Katherine had a good relationship; he never suspected her of adultery, and there |7was no misconduct of any kind on her part. Accordingly, the evidence yields no basis for convincing us that Katherine was at fault for the dissolution of the couple’s marriage, and we find, like the trial court, that Katherine has proved her freedom from fault in the separation and divorce.

Hearsay

Larry contends that the trial court erred by allowing Katherine to give hearsay testimony regarding his alleged infidelity because she did not call her brother or niece to corroborate Katherine’s testimony. We find no abuse of discretion on the part of the trial court. The testimony allowed does not conform to the definition of hearsay.

“ ‘Hearsay1 is a statement, other than one made by the declarant while testifying at the present trial or hearing, offered in evidence to prove the truth of the matter asserted.” La.Code Evid. art. 801(C). In this case, the trial court made it clear that she was allowing Katherine’s statement regarding what others told her about Larry’s infidelity, not to prove the truth of the infidelity, but to prove the reasonableness of Katherine’s subsequent actions in leaving the domicile.

More specifically, upon the objections of Larry’s attorney, the trial judge stated: “I’m not going to allow the testimony for purposes of the truth. I’m going to allow it for purposes of why [Katherine] took the action she took.” Later in the trial, when Larry’s counsel again referred to Katherine’s testimony regarding what others told her about Larry’s infidelity, the trial court repeatedly clarified the purposes for which she had allowed the testimony, not to prove the truth regarding Larry’s infidelity, but to show reasonable justification for Katherine’s departure from the matrimonial domicile.

| ¡¡Final Periodic Support

The court is authorized to award final spousal support under La.Civ.Code art. 112 based upon the needs of the claimant spouse and the ability of the other spouse to pay support. The article provides in pertinent part:

A. When a spouse has not been at fault and is in need of support, based on the needs of that party and the ability of the other party to pay, that spouse may be awarded final periodic support in accordance with Paragraph B of this Article.
B. The court shall consider all relevant factors in determining the amount and duration of final support. Those factors may include:
(1) The income and means of the parties, including the liquidity of such means.
(2) The financial obligations of the parties.
(3) The earning capacity of the parties.
C. The sum awarded under this Article shall not exceed one-third of the obligor’s net income.

Larry contends that the trial court erred in finding that Katherine was in need of support and in awarding her $200.00 per month in spousal support. We disagree. Katherine’s affidavit of income and expenses shows $1,911.00 in monthly income ($611.00 in social security disability, plus $1,300.00 for sitting with the elderly) and $2,152.76 in monthly expenses, indicating that Katherine has a monthly shortfall of $241.76 and, therefore, has need of spousal support. Larry’s affidavit of income and expenses shows a net monthly income of $6,188.12 and monthly expenses of $2,815.87, indicating that Larry has a monthly surplus of $3,372.25 and, therefore, has the ability to pay spousal support.

At trial, the court heard Katherine’s testimony regarding her income and expenses, item by item, and the defendant had the opportunity to cross-examine Katherine. A forty-dollar item on Katherine’s expense list was for her 19adult son and was ending the following month; therefore, that item was dropped, and the court reduced Katherine’s monthly shortfall from $241.76 to $200.00. Larry’s counsel continued to argue that Katherine picked up extra sitting jobs every month at $100.00 per day; in his appellate brief, he argues that Katherine worked eleven extra days in the two months preceding trial, increasing her actual income by $550.00 per month. This snapshot account is wholly misleading and misrepresentative of Katherine’s income, which is tenuous and unpredictable as it is based upon the lifespan of an ill and elderly patient and upon the sporadic health of the other sitters who take care of her.

In questioning Katherine about her work as a sitter, the trial court determined that in a one-year period, Katherine earned eleven extra days in the final three months, up to the date of trial. She earned nothing extra in the first nine months and had earned nothing extra in the current month at the time of trial. Katherine’s only client was a ninety-year-old patient, and she shared the patient with three other sitters. The extra income in the two months immediately preceding the month of trial occurred when one of the other sitters had a mild stroke, and Katherine and the remaining sitters picked up the stricken sitters days. Katherine testified that her work was word-of-mouth, that she called former clients to find new work, but that she had only the one ninety-year-old patient and no other work guaranteed after this patient dies. Hence, even the $1,300.00 that Katherine shows as monthly sitting income is tenuous; even more tenuous is the ability to earn extra income.

The trial court found that Katherine’s sitting income was speculative, that it could take a while to find work when the current patient passes away, and that any extra days picked up were merely a buffer for potential upcoming gaps in | ^Katherine’s employment. We find no abuse of discretion in the trial court’s refusal to increase Katherine’s stated income or in its refusal to further reduce the amount of spousal support to Katherine due to the nature of her work.

V.

CONCLUSION

Based upon the foregoing, we affirm the trial court’s judgment of September 30, 2009, finding Katherine Ashworth free from fault in her divorce. We further affirm the trial court’s judgment of April 6, 2011, awarding Katherine $200.00 per month in final periodic spousal support from Larry Ashworth. All costs of this appeal are assessed to Larry Ashworth.

AFFIRMED.

      . It is unknown whether Katherine's sitting job paying $100.00 "per day” is reflective of twenty-four hours of work, or twelve hours of work, or eight hours of work; or whether the next sitting job will pay the same fee.


author: EZELL, Judge.

text:
    Patricia PARKER v. TOWN OF WOODWORTH, et al.
    No. CA 11-1275.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 2012.
    Edward Larvadain, Jr., Alexandria, LA, for Plaintiff/Appellant, Patricia Parker.
    Randall Brian Keiser, Keiser Law Firm, Alexandria, LA, for Defendants/Appellee, Town of Woodworth, David R. Godwin.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS, and BILLY HOWARD EZELL, Judges.
   EZELL, Judge.

|! This appeal raises the issue of whether the payment of fine for a traffic violation precludes a person from filing a civil suit for false arrest claiming that there was no probable cause for the initial traffic stop.

FACTS

On January 4, 2009, Patricia Parker was driving a 1989 Dodge truck south on U.S. Highway 165 in the Town of Woodworth. The vehicle was owned by Frederick Jefferson who gave Ms. Parker permission to use it. She had picked up two coworkers, and they were on their way to work at the Wesley Center, a retreat center of the United Methodist Church. Officer David Godwin began to follow Ms. Parker. According to Ms. Parker, Officer Godwin stopped Ms. Parker after she turned onto Methodist Parkway Road from Coulee Crossing Road. Officer Godwin asked for Ms. Parker’s license, insurance, and registration. Ms. Parker claims that she asked Officer Godwin why he was stopping her and he told her that she “looked suspicious.”

When Officer Godwin returned, he told her that her license had been suspended and asked if there was someone else who could drive the vehicle. Her coworkers could not drive so she called her supervisor who sent someone else to drive the car. Officer Godwin informed them that this person could not drive the car either because she did not have permission from the owner of the vehicle. The truck was then towed.

Ms. Parker received four citations: (1) driving under suspension; (2) unlawful use of a driver’s license; (3) no insurance; and (4) no registration. Ms. Parker went to court on January 22, 2009. The Mayor was the magistrate judge presiding over the proceedings. Each person got a turn to talk to the Mayor in the hallway. Ms. Parker explained to the Mayor that her license should not have been launder suspension because she had paid all her fees and fines on time for an earlier stop that had occurred in Rapides Parish. She also showed him proof of insurance and registration on the vehicle. The Mayor dismissed the “no registration” charge. Ms. Parker asked for more time to prove that her license had not been suspended, and the Mayor gave her until February 18.

Ms. Parker went back on February 18 with documentation showing that her license had not been suspended when she was stopped. She showed the information to the Mayor and Dorothy Gunner. The Mayor refused to drop the unlawful use charge. The Mayor told her that she could at least pay the unlawful use charge that day.

On that same day, Ms. Parker was presented with a bill of information indicating the four charges. Handwritten notes indicate that the unlawful use charge was paid that day. Ms. Parker was given until March 18 to come up with money to pay the remaining two fines.

A typed section on the bill of information stated: “I, Patricia N. Parker, do hereby plead guilty to the charge of U15, mi, 865A, 729A TKT & Complaint No. /cll576-l-2-3-4. and do hereby request an extension to pay no later than the 18th day of Feb, 1909.” A signature line with the initials “PP” and a notary signature line signed by “Dorothy A. Gunter” followed. The “19” in front of the “1909 ” was also scratched through. Ms. Parker admitted that she made the initials “PP” but stated that none of the other handwriting was hers. She also indicated that none of the other handwriting was on the document, including Ms. Gunter’s signature, when she filled in the initials “PP.” Ms. Parker also stated that she signed her full name off to the side by a handwritten “x” and signature line indicating she had been given an extension to March 18. Ms. Parker went back on March 18 to try and get the other charges dropped, but the Mayor was not there.

|3On April 14, 2009, Ms. Parker filed suit against the Town of Woodworth and Officer David Godwin claiming she suffered damages as a result of an illegal stop. Subsequently, on June B, 2009, she received two notices that warrants had been issued for her arrest. She showed her attorney and was arrested on August 31, 2009. She spent twenty-five days in jail.

The Town and Officer Godwin filed a motion for summary judgment on July 20, 2009, which was denied. A writ of review was sought in this court which was denied.

Ms. Parker was deposed in November 2010. The Defendants once again filed a motion for summary judgment. Following a hearing, a judgment granting the motion for summary judgment was signed on May 25, 2011. Ms. Parker appealed this judgment.

SUMMARY JUDGMENT

The standard of review to be utilized in reviewing a judgment granting a motion for summary judgment has been articulated by the supreme court as follows:

Appellate courts review summary judgment de novo, using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate, and in the light most favorable to the non-movant. Suire v. Lafayette City-Parish Gov’t., 04-1459, p. 11 (La.4/12/05); 907 So.2d 37, 48; Hines v. Garrett, 04-0806, p. 1 (La.6/25/04); 876 So.2d 764, 765 (per curiam); Goins v. Wal-Mart Stores, Inc., 01-1136, p. 5 (La.11/29/01[sic]); 800 So.2d 783, 788 (citing Taylor v. Rowell, 98-2865, p. 3 (La.5/18/99); 736 So.2d 812, 814). It is well-settled that summary judgment procedure, as set forth in article 966 of the Louisiana Code of Civil Procedure, is designed to secure the just, speedy, and inexpensive determination of actions. La. C.C.P. art. 966(A)(2). Summary judgment shall be rendered if there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). A fact is material if it potentially insures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the legal dispute. Hines v. Garrett, 04-0806, p. 1 (La.6/25/04); 876 So.2d 764, 765 (citing Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 27 (La.7/5/94); 639 So.2d 730, 751). A genuine issue of material fact is |4one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate. Id.

Yokum v. 615 Bourbon Street, L.L.C., 07-1785, pp. 25-26 (La.2/26/08), 977 So.2d 859, 876-78 (footnotes omitted).

The Town and Officer Godwin, as the movants, bear the initial burden of proof and must show that no genuine issue of material fact exists. La.Code Civ.P. art. 966(C)(2). However, the Town and Officer Godwin do not bear the burden of negating all essential elements of Ms. Parker’s claim since Ms. Parker has the burden to prove that she was illegally detained. Id. The Town and Officer Godwin need only point out a lack of support for an essential element of Ms. Parker’s claim. Id. The burden then shifts to Ms. Parker to show some support that she can meet her evi-dentiary burden on that element. Id. If she cannot meet the burden, there is no genuine issue of material fact, and the motion for summary judgment should be granted. Id.

The Town and Officer Godwin argue that a guilty plea bars Ms. Parker from collaterally attacking the existence of probable cause for the stop, defeating her claim for false arrest. Ms. Parker argues that summary judgment was inappropriate. She argues that payment of a fine for a violation other than an initial stop does not preclude her from pursuing a false arrest claim.

Louisiana Revised Statutes 14:108.1(A)(emphasis supplied) provides that no driver of a vehicle can intentionally refuse to stop when she has been given “a visual and audible signal to stop by a police officer when the officer has reasonable grounds to believe that the driver has committed an offense.” “False arrest and imprisonment occur when one arrests and restrains another against his will without a warrant or other statutory authority.” Kelly v. West Cash & Carry Bldg. Materials Store, 99-102, p. 28 (La.App. 4 Cir. 10/20/99), 745 So.2d 743, 761. “[F]alse arrest is not distinguished as a separate tort from false imprisonment.” Id.

In Louisiana, the tort of false arrest or imprisonment consists of two elements: (1) detention of a person; and (2) the unlawfulness of the detention. Touchton v. Kroger, 512 So.2d 520 (La.App. 3rd Cir.1987). If a plaintiff is convicted of a crime for which he was arrested and indicted, and the conviction is affirmed, his detention is not unlawful as a matter of law. Restrepo v. Fortunato, 556 So.2d 1362 (La.App. 5th Cir.), writ denied [sic] 560 So.2d 11 (La.1990).

Slaydon v. State Through Dep’t of Wildlife & Fisheries, 93-1380, pp. 2-3 (La.App. 3 Cir. 5/4/94), 636 So.2d 1151, 1152, writ denied, 94-1952 (La.10/28/94), 644 So.2d 377.

In Gibson v. State, 99-1730 (La.4/11/00), 758 So.2d 782, cert. denied, 531 U.S. 1052, 121 S.Ct. 656, 148 L.Ed.2d 559 (2000), the supreme court was faced with issue of whether a party who was convicted of a crime and later released could file a civil suit for damages for false arrest. The supreme court recognized that this inquiry involved the question of whether a person who “had been arraigned, indicted, and convicted based upon the criminal court’s satisfaction that the probable cause standard was met conclusively proves probable cause existed at the time of the arrest.” Id. at 788. Because the supreme court found that probable cause to arrest the plaintiff existed, the police were justified in arresting him. However, as noted on the plaintiffs application for rehearing, the supreme court did not need to address the issue of whether indictment and conviction are conclusive proof of probable cause to arrest since it found probable cause did exist at the time of the arrest.

In a concurring opinion, Justice Lem-mon stated that “[t]he critical issue is whether the police had probable cause to arrest plaintiff at the time he was arrested, and not whether the State had sufficient evidence to convict him eight months after his arrest.” Id. at 791. Justice Lemmon goes on to explain that “if probable cause |(jhad not existed at the critical time and an investigation subsequent to the arrest had developed evidence to support the eventual conviction, plaintiff would be entitled to some amount of damages for wrongful arrest.” Id.

In O'Brien v. Town of Glenmora, 08-309 (La.App. 3 Cir. 11/5/08), 997 So.2d 753, summary judgment had been granted in favor of the town and the officer who had arrested the plaintiff on plaintiffs claims against the defendants. This court held that the officer had probable cause to arrest the plaintiff for the felony offense of public intimidation, thereby precluding the plaintiffs action.

In the present case, there has been no conviction. Ms. Parker contends she only paid the fine for unlawful use of a license at the Mayor’s insistence. There is no information that Ms. Parker pled guilty under oath or in open court. Her deposition testimony reveals that all information on the bill of information was filled in after she signed it. Furthermore, there is a question as to why Ms. Parker would plead guilty to the “no registration” charge that was dismissed.

This court has held that a motorist’s payment of a fine associated with a traffic citation cannot be equated with the entry of a guilty plea. Maricle v. Liberty Mut. Ins. Co., 04-1149 (La.App. 3 Cir. 3/2/05), 898 So.2d 565. Citing Jackson v. St. Pierre, 336 So.2d 261, 264 (La.App. 1 Cir.1976), this court explained:

[Wjhile such a plea is admissible against a defendant in a civil proceeding, it is not conclusive, and the amount of weight to be given to such a plea must be determined by consideration of all the evidence, including the reason for the plea. In finding the defendants without fault, the first circuit gave weight to their explanation “[t]hat it would be less hassle and expense to pay the fine rather than go through with a trial on such a matter.” Id.

Maricle, 898 So.2d at 573(second alteration in original).

We also note that none of the citations issued to Ms. Parker were for a moving violation that would give rise to reasonable grounds for the stop.

17For these reasons, the motion for summary judgment granted in favor of the Town of Woodworth and Officer David Godwin is reversed. This matter is remanded to the trial court for further proceedings. In accordance with La.R.S. 13:5112, costs of this appeal are assessed against the Town of Woodworth in the amount of $589.50.

REVERSED AND REMANDED.


text:
    Audrey ASHLEY v. CITY OF ALEXANDRIA EMPLOYEES' RETIREMENT SYSTEM.
    No. 11-1322.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 2012.

      Edward Larvadain, Jr., Alexandria, LA, for Plaintiff/Appellant, Audrey Ashley.
    Trevor Scott Fry, Joseph H.L. Perez-Montes, Gold, Weems, Bruser, Sues & Rundell, Alexandria, LA, for Defendant/Appellee, City of Alexandria Employees’ Retirement System.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS, and BILLY HOWARD EZELL, Judges.
   THIBODEAUX, Chief Judge.

pin this dispute, Audrey Ashley, a former wife of an employee, John Ashley, who participated in the City of Alexandria Employees’ Retirement System (the System), claims that the trial court erred by granting a summary judgment in favor of the System. The trial court held that the System was not liable to Audrey for the portion of the retirement benefits the System paid to John prior to the notice of Audrey’s claim to the benefits. For the following reasons, we affirm.

> — I

ISSUE

We shall consider whether the designation form, pursuant to which the System paid benefits to the employee, was properly executed where no particular questions are statutorily required to be included on the designation form and where proper execution of the form is required for the System to be discharged from all adverse claims to the benefits.

II.

FACTS

Audrey and John were married in 1974, and John started working for the City of Alexandria (the City) in 1976. As the City's employee, John participated in the System. Audrey and John were divorced in 1997 but never obtained a community property division order.

In 2002, John executed a designation form, naming his daughter from his marriage to Audrey as the beneficiary of his retirement’s balance in case of his death. In 2005, John retired. John requested and received from the System a lump-sum payment of over fifty thousand dollars along with the monthly benefits. |2The daughter died in 2007. Two months later, John died without naming a different beneficiary.

It is undisputed that the System received notice regarding Audrey’s claim to the portion of the benefits shortly after John’s death, over two years after the System started to make payments to John.

Audrey filed a petition against the System asserting entitlement to one half of community interest in John’s retirement benefits and in the more than fifty thousand dollars John withdrew. After the System filed for a concursus proceeding, the trial court granted the System’s request to deposit the residual balance of John’s retirement contributions into the court’s registry. The trial court then ordered the release of the balance to Audrey as administratrix of her daughter’s estate.

The System filed a motion for summary judgment arguing: (1) John properly executed the designation form; (2) the System paid the benefits to John pursuant to its written retirement plan and the designation form; and, (3) because Audrey did not notify the System of her claim to the benefits prior to their payment, the System was discharged from all adverse claims under La.R.S. 23:638(A). Audrey, after agreeing that there were no disputed material facts in the case, argued that La.R.S. 23:638 was unconstitutional as it deprived her of a vested property right without due process of the law. The record contains no notice to the Attorney General regarding constitutional challenges. The trial court granted the System’s motion, and Audrey appealed. We now consider the matter.

JiH.

STANDARD OF REVIEW

Appellate courts review summary judgments de novo. Guilbeaux v. Times of Acadiana, Inc., 96-360 (La.App. 3 Cir. 3/26/97), 693 So.2d 1183, writ denied, 97-1840 (La.10/17/97), 701 So.2d 1327.

IV.

LAW AND DISCUSSION

(A) Preliminary Considerations

At the trial court, Audrey questioned the constitutionality of La.R.S. 23:638. In her brief to this court, Audrey, again, raises constitutional questions, i.e., deprivation of vested property rights without due process of the law.

“If the statute, ordinance, or franchise is alleged to be unconstitutional, the attorney general of the state shall also be served with a copy of the proceeding and be entitled to be heard.” La.Code Civ.P. art. 1880. Courts do not reach issues of constitutionality where the Attorney General was not served pursuant to La.Code Civ.P. art. 1880. See State v. Albritton, 610 So.2d 209 (La.App. 3 Cir.1992).

Here, the record contains no notice to the Attorney General. Therefore, this court does not reach the constitutional questions.

During the hearing on the motion for summary judgment, the attorney for Audrey stated: “opposing counsel is accurate in the facts of this case. There’s no question about the facts.” To this court, Audrey argues that there are genuine issues of material fact as to whether the designation form was “properly executed,” whether the form was critically deficient, and whether Audrey was deprived of a vested property right.

|4We do not even consider whether these issues are, indeed, questions of fact, or, as the System ably points out, questions of law. “The Courts of Appeal will review only issues which were submitted to the trial court_” Uniform Rules-Courts of Appeal, Rule 1-3. At the trial court, Audrey agreed that there were no questions of material fact in this case, and, therefore, the trial court did not consider the issue. Thus, we do not review this issue.

(B) The “Proper Execution” of the Designation Form

Whenever payment ... is made to any employee ... pursuant to a written retirement, death or other employee benefit plan or savings plan, the payment or refund shall fully discharge the employer and any trustee or insurance company making payment or refund from all adverse claims thereto unless, before the payment or refund is made, the employer or former employer ... has received ... written notice by or on behalf of some other person claiming to be entitled to the payment....

La.R.S. 23:638(A).

“Plan” shall mean any arrangement, agreement, contract, plan, system or trust whereby a participant acquires an enforceable right to retirement income or other compensation where payment is deferred until the termination of employment or thereafter, regardless of the method of calculating the amount of plan benefits or the mode of their distribution.

La.R.S. 23:651(1).

(1) Any designation form permitted by a plan shall be valid for the purpose of naming a beneficiary, or selecting the mode of payment of plan benefits, or both.
(2) A designation form need not be in testamentary form, nor authentic form, nor in any form other than that permitted or required by the plan.
(3) As is provided by R.S. 23:638, benefits may be paid in reliance on a properly executed designation form until the payor receives notice of an adverse claim.

La.R.S 23:652 (emphasis added).

| ¡¿Here, there is no dispute that the benefits paid to John were paid pursuant to a plan as it is defined under La.R.S. 23:651(1). Furthermore, there is no dispute that the System received no notice of Audrey’s claim until after John’s death. After the System received the notice, it deposited the residual balance of John’s retirement contributions into the court’s registry. The trial court then ordered the release of these funds to Audrey as admin-istratrix of her daughter’s estate.

Because no particular questions are statutorily required to be included on the designation form, the form was properly executed under the statute. As discussed above, because of procedural deficiencies, we do not address the constitutional questions. Based on these considerations, we find no error in the trial court’s judgment.

V.

CONCLUSION

The trial court’s judgment in favor of the City of Alexandria Employees’ Retirement System is affirmed. Costs of this appeal are assessed to Audrey Ashley.

AFFIRMED.