author: KUHN, J. GUIDRY, J.,

text:
    In re Nicholas J. LORUSSO.
    No. 2011 CA 0666.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 29, 2011.

      John B. Dunlap, III, Jennifer A. Fiore, Baton Rouge, LA, for Plaintiff-Appellant Nicholas J. Lorusso.
    Kathleen M. Allen, Mike Dupree, Baton Rouge, LA, for Defendant-Appellee Louisiana Board of Ethics.
    Before WHIPPLE, KUHN, GUIDRY, HUGHES, and WELCH, JJ.
   KUHN, J.

12Nicholas Lorusso appeals the declaratory decision of the Board of Ethics, functioning as the Supervisory Committee on Campaign Finance Disclosure (the Board), wherein it declared that he was not permitted to amend the report he timely submitted to the Board as required by the Campaign Finance Disclosure Act to reflect that a $30,000.00 payment by him to his campaign for election to the state house of representatives was a loan rather than a contribution. For the reasons that follow, we reverse and render.

FACTUAL AND PROCEDURAL BACKGROUND

Rep. Lorusso was the successful candidate for the Louisiana State House of Representatives, District 94, in an election held on March 10, 2007. On March 1, 2007, candidate Lorusso filed a campaign disclosure report in accordance with La. R.S. 18:1495.4 B(4). Utilizing the form provided by the Board, candidate Lorusso disclosed that on February 11, 2007, he had given his campaign a $30,000.00 payment, which was identified as a contribution.

After his successful campaign, in a letter dated August 28, 2007, Rep. Lorusso requested an advisory opinion from the Board. He stated that he had become aware of a clerical error in his campaign disclosure report and was “requesting ... permission to correct [his] report.” According to his letter:

I..¡Specifically, on February 11, 2007, I wrote a personal check out of my private checking account in the amount of $30,000.00 to my campaign fund.... The amount of my personal check was duly recorded on the Summary Page of my [campaign disclosure] report.... However, this $30,000.00 was erroneously listed on Schedule A-l as a contribution ... when in fact it should have been properly designated as a personal loan to my campaign fund on Schedule B.
Therefore, I respectfully request that I be allowed to file a Supplemental Candidate’s Report to properly reflect on Schedule B that the $30,000.00 personal check I wrote out of my private checking account was in fact a loan, instead of a contribution.

In response to his letter, the Board issued an advisory opinion on September 14, 2007, concluding that the Campaign Finance Disclosure Act prohibited amendment of the campaign disclosure report Rep. Lorusso had timely filed before the election. In so concluding, the Board reasoned that “any amendment and repayment would result in a violation ... since the information would have been inaccurately reported at a time it was pertinent to the voters.” Rep. Lorusso filed a motion for reconsideration on December 21, 2007. A minute entry in the record notes that on December 18, 2009, the Board affirmed its earlier decision.

On May 12, 2010, Rep. Lorusso emailed the Board and “requested a declaratory opinion regarding the recent finding on [his] request to amend [his] campaign [disclosure] report.” The request was taken up at a public hearing held on June 18, 2010. A majority of the Board voted to “reaffirm the earlier decision declining [Rep. Lorusso’s] request.” On November 19, 2010, a written opinion was issued in conformity with the Board’s ruling. Rep. Lorusso timely appealed.

| LIABILITY OF THE APPEAL

The Board asserts that this court is without authority to review its declaratory opinion in this matter. Relying on Du-plantis v. Louisiana Board of Ethics, 2000-1750, p. 1 (La.8/23/01), 782 So.2d 582, 588, in which the Louisiana Supreme Court considered whether it was proper for the court of appeal to review advisory opinions issued by the Board and held that the appellate courts are without jurisdiction to review such advisory opinions, the Board suggests that the declaratory opinion it issued on November 19, 2010, was in actuality an advisory opinion. As such, it urges, the decision is not one that is reviewable by this court.

The Board buttresses its contention by asserting that the declaratory opinion before us merely provides advice to Rep. Lorusso and, therefore, is subject to the Dwplantis holding, claiming that it: (1) does not present a justiciable controversy; (2) is not a ruling that is enforceable by Rep. Lorusso; (3) does not include any factual findings based on an investigation and adversarial hearing; and (4) does not fall within the scope of the ambit of the Board’s constitutional authority.

In reaching its conclusion that advisory opinions are not reviewable by the courts of appeal, the Dwplantis court examined the constitutional grant of power in La. Const, art. X, § 21, which permitted the legislature to enact the Code of Ethics. That provision states, in relevant part, that “[djecisions of a board shall be appealable, and the legislature shall provide the method of appeal.” 2000-1750 at p. 8, 782 So.2d at 587. The Dwplantis court explained that an advisory opinion is usually initiated by correspondence, rendered on a set of facts for which there is no investigation or adversarial hearing, and leaves the applicant in no different position than before the issuance of the Board’s advice. 2000-1750 at pp. 8-9, 782 So.2d at|5587-88. The Dwplantis court contrasted the procedures required before the Board can find a violation of the Code of Ethics. Those include, among other things, commencement by a sworn complaint, notice and an investigation of the charges, a public hearing, legal representation of the accused, the right to cross-examine and call witnesses, and the right to present evidence, and the imposition of a wide range of penalties. 2000-1750 at pp. 9-10, 782 So.2d at 588. Based on these differences, the Dwplantis court concluded that advisory opinions were not “decisions” under La. Const. Art. X, § 21. 2000-1750 at pp. 8-14, 782 So.2d at 588-91. Looking at the provisions of La. R.S. 42:1142, set forth in Part III (entitled Administration, Procedure, and Enforcement) of the Code of Ethics, which provided the procedure for appellate review of decisions of the Board, the Dwplantis court determined the provision of La. R.S. 42:1142, stating that “[a]ny advisory opinion issued to any person or governmental entity by the board or panel ... is subject to the supervisory jurisdiction of the appellate court ...” was unconstitutional. 2000-1750 at pp. 13-14, 782 So.2d at 591.

Subsequent to Duplantis, by Acts 2008, 1st Ex.Sess., No. 24, § 1, the legislature amended the provisions of La. R.S. 42:1142. La. R.S. 42:1142 A presently provides in relevant part:

Whenever action is taken against any public servant or person by the board or panel or by an agency head by order of the board or panel, or whenever any public servant or person is aggrieved by any action taken by the board or panel, he may appeal therefrom to the Court of Appeal, First Circuit, if application to the board is made within thirty days after the decision of the board becomes final. Any refusal by the board or panel to issue a declaratory opinion or any preliminary, procedural, or intermediate action or ruling by the board or panel is subject to the supervisory jurisdiction of the appellate court as provided by Article V, Section 10 of the Constitution of Louisiana. (Emphasis added.)

[(¿The legislature simultaneously modified Part III (Administration, Procedure, and Enforcement) of the Code of Ethics by enacting La. R.S. 42:1141.1, which addresses “Declaratory opinions.” According to these provisions:

A. Upon application of a public servant, other person, or agency, the board may declare rights, status, and other legal relations established by the provisions of this Chapter or by any other law within its jurisdiction or under opinions issued by the board, either before or after there has been a breach thereof. The applicant may seek to have the board determine any question of construction or validity arising under the provisions of this Chapter or by any other law within its jurisdiction.
B. The board’s power to declare rights, status, or legal relations established by the provisions of this Chapter or by any other law within its jurisdiction or under opinions issued by the board, or the construction of said laws or opinions, is not limited or restricted to any proceeding where a declaratory opinion is sought in order to terminate a controversy or remove an uncertainty.
C. The purpose of a declaratory opinion is to settle and afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations established by the provisions of this Chapter or by any other law within the board’s jurisdiction or under opinions issued by the board, or the construction of said laws and opinions.
D. A declaratory opinion is a decision of the board. The decision of the board on an application for a declaratory opinion shall be rendered after a public hearing and only after the requesting party, all other interested parties, and the board’s staff have been afforded full and complete opportunity to present evidence, testimony, and argument. A declaratory opinion of the board shall be considered a final decision and shall be reviewable by the Court of Appeal, First Circuit, pursuant to R.S. 42:1142.
E. The board may refuse to render a declaratory opinion where such opinion, if rendered, would not terminate the uncertainty or controversy giving rise to the proceeding.
F. When a declaratory opinion is sought, the public servant, other person, or agency, as necessary and appropriate for the rendition of a declaratory opinion, who has or claims any interest which would be affected by the opinion shall be made a respondent and given notice of the request and of all public hearings conducted pursuant to the request.
|7G. The procedures for seeking a declaratory opinion and for the public hearing on such request shall be provided by rule adopted by the board pursuant to the Administrative Procedure Act.

We initially point out that despite the bequest of power given by the legislature in Subsection G of Article 1141.1, permitting the Board to adopt rules to govern the procedure for applicants seeking a declaratory opinion, we have found none. But the record establishes that the Board took up Rep. Lorusso’s request for a declaratory opinion in a public hearing conducted on June 18, 2010.

Mindful that the legislature did not otherwise define declaratory opinions in the Code of Ethics, we turn to the Louisiana Code of Civil Procedure for guidance. See La. C.C. art. 11 (technical terms must be given their technical meaning when the law involves a technical matter) and art. 13 (laws on the same subject matter must be interpreted with reference to each other). La. C.C.P. art. 1871 explains the grant of authority given to the courts to render declaratory judgments, stating:

Courts of record within their respective jurisdictions may declare rights, status, and other legal relations whether or not further relief is or could be claimed. No action or proceeding shall be open to objection on the ground that a declaratory judgment or decree is prayed for; and the existence of another adequate remedy does not preclude a judgment for declaratory relief in cases where it is appropriate. The declaration shall have the force and effect of a final judgment or decree.

Declaratory judgments may be rendered “whether or not further relief is or could be claimed.” La. C.C.P. art. 1871. Nevertheless, a declaratory judgment has the force and effect of a final judgment or decree and may serve as the basis for a petition seeking further relief. See La. C.C.P. arts. 1871 and 1878.

The court may refuse, however, to render a declaratory judgment or decree | ¿where such judgment or decree, if rendered, will not terminate the uncertainty or controversy giving rise to the proceeding. La. C.C.P. art. 1876. Our jurisprudence has limited the availability of declaratory judgments by holding that “courts will only act in cases of a present, justicia-ble controversy and will not render merely advisory opinions.” Church Point Wholesale Beverage Co., Inc. v. Tarver, 614 So.2d 697, 701 (La.1993).

A justiciable controversy is a real and substantial controversy admitting of specific relief through a decree of conclusive character. Am. Waste & Pollution Control Co. v. St. Martin Parish Police Jury, 627 So.2d 158, 161 (La.1993). It has been generally defined as a dispute between “adverse parties with opposing claims ripe for judicial determination,” involving “specific adversarial questions asserted by interested parties , based on existing facts.” Prator v. Caddo Parish, 2004-0794, p. 6 (La.12/1/04), 888 So.2d 812, 816.

In the context of declaratory judgment, a justiciable controversy must involve uncertain or disputed rights in an immediate and genuine situation, and must be a substantial and actual dispute as to the legal relations of parties having real, adverse interests. Steiner v. Reed, 2010-1465, p. 6 (La.App. 1st Cir.2/11/11), 57 So.3d 1188, 1192. Such a justiciable controversy must be distinguished from one that is merely hypothetical or abstract, or one presenting an issue that is academic, theoretical, or based on a contingency that may or may not arise. Id.

In this case, we conclude that Rep. Lo-russo has presented a justiciable controversy insomuch as it is a request for a determination of his right to amend his campaign disclosure report, i.e., a request for resolution of an uncertain right and a demand for relief presented in an immediate and genuine situation. Without an | flopportunity to amend his campaign disclosure report to indicate that the $30,000.00 payment was a loan rather than a contribution, Rep. Lorusso is unable to raise funds to reimburse his patrimony for that payment. More importantly, without an opportunity to amend, Rep. Lorusso ostensibly fails to accurately disclose information required to be reported under the Campaign Finance Disclosure Act. A ruling in favor of Rep. Lorusso would terminate the litigation. Hence, resolution of the issue of whether he is entitled to amend his campaign disclosure report constitutes a substantial and actual dispute as to the legal relations between Rep. Lorusso and the Board, each of whom has a real and actual interest in the resolution of the issue raised in Rep. Lo-russo’s request for declaratory relief. Applying the present provisions of the law, we conclude that we have jurisdiction to review the declaratory opinion issued on November 19, 2010, because as a declaratory opinion which presents a justiciable controversy, it is appealable under La. R.S. 42:1141.1 D. Accordingly, we turn to our review of the merits of Rep. Lorus-so’s justiciable controversy.

DECLARATORY RELIEF

As set forth by the Board in its opinion, the issue under review is whether Rep. Lorusso may amend his campaign disclosure report, filed on March 1, 2007, to represent that the receipt of a $30,000.00 payment he made to his campaign was a loan rather than a contribution as he indicated at the time he filed it. In deciding that Rep. Lorusso may not do so, the Board relied on the provisions of La. R.S. 18:1495.4 to conclude that Rep. Lorusso was required to file a campaign disclosure |inform; that under La. R.S. 18:1495.5 B(4), the report was required to contain information on the contributions received during the reporting period, including the name and address of each person who contributed, the aggregate amount of all contributions, as well as the value of all in-kind contributions, received during the reporting period; and that under La. R.S. 18:1495.5 B(9), the report was required to contain the date and amount of each loan made or received by the candidate, along with the name and address of the lender.

The Board concluded that an amendment to allow Rep. Lorusso to change the designation of the $80,000.00 payment he made to his campaign from a contribution Into a loan apparently would ipso facto result in a finding of a violation of the duty a candidate has under La. R.S. 18:1505.1 to accurately disclose information required to be reported to the Board as well as the imposition of civil penalties under La. R.S. 18:1505.4 B. In reaching its conclusion that Rep. Lorusso “cannot amend his report after the election to now disclose the receipt of a loan to his campaign,” the Board reasoned that the campaign disclosure report, filed prior to the election, “discloses to the public and the electorate the identity of who is funding a candidate’s campaign and what expenditures have been made with such funds.”

At this juncture, we point out that, under the statutory duty of La. R.S. 18:1505.1, having indicated that the information provided in his campaign disclosure report inaccurately disclosed the nature of his $80,000.00 payment, Rep. Lorusso is apparently already subject to a potential violations complaint simply by requesting whether he is entitled to amend his report because the request itself points out the inaccuracy of the information he reported. If he is not permitted to amend, he has violated La. R.S. 18:1505.1 because of his “failure to disclose accurately any information required to be reported by this Chapter.” By denying Rep. Lorusso an opportunity to amend his campaign financial disclosure report, the I^Board itself becomes an instrumentality in the continued inaccuracies contained in the campaign disclosure report.

Our review of the law has led us to the Louisiana Administrative Code, Title 52, entitled “Ethics,” which contains in Chapter 16, entitled “The Board as Supervisory Committee of the Louisiana Campaign Finance Disclosure Act,” § 1606, addressing registration and reporting as well as incomplete and incorrect forms. Section 1606, promulgated in accordance with La. R.S. 42:1134 A, states in pertinent part:

A. The staff may, without board action, request additions and corrections to any ... report filed by a ... candidate or other person which would constitute a minor violation of the Campaign Finance Disclosure Act. However, the staff shall report any uncorrected or material violations of the Campaign Finance Disclosure Act to the [BJoard.

While it is evident that this rule does not directly address the situation that Rep. Lorusso has presented, implicit in its provisions is a procedure to permit additions and corrections to any report filed by a candidate. We have, however, found no provisions in either the rules duly promulgated by the Board under its rulemaking powers, see La. R.S. 42:1134 A and La. R.S. 18:1141.1 G, or in the statutory scheme 11sadopted by the legislature, which expressly provide a procedure for amending a timely-filed but inadvertent and, therefore, inaccurate representation in a campaign disclosure form.

Since nothing in La. R.S. 18:1495.4 or 1495.5 prohibits an amendment of a campaign disclosure report and in light of the Board’s rule in § 1606 of Title 52 of the Louisiana Administrative Code, which implicitly suggests that a procedure exists to permit additions and corrections to any report filed by a candidate, because the failure to modify his campaign disclosure report to accurately reflect the requisite information mandated under La. R.S. 18:1495.5 B appears to constitute a violation of the Code of Ethics, we conclude that Rep. Lorusso is permitted to amend his report. In so concluding, we do not express any opinion on either the propriety of the Board instituting violation charges against Rep. Lorusso or the potential disposition of those charges should they duly be pursued against him in accordance with La. R.S. 18:1505.4 B and 1511.5, as well as §§ 701-708 of the Louisiana Administrative Code, Title 52, Chapter 7, entitled “Complaints,” and any other applicable procedure relative to an alleged violation of the Code of Ethics involving an application of the Board’s burden of proof in a properly-instituted hearing conducted in accordance with due process.

DECREE

For these reasons, we find that Rep. Lorusso may amend his March 1, 2010 campaign disclosure form to accurately reflect the information he must disclose in the report he filed in conjunction with his campaign for the Louisiana State House of Representatives, District 94, for an election held on March 10, 2007. The Board’s declaratory opinion is reversed. Appeal costs in the amount of $391.16 are 114assessed against the Board of Ethics, functioning as the Supervisory Committee on Campaign Finance Disclosure.

REVERSED AND RENDERED.

GUIDRY, J., dissents and assigns reasons.

WELCH, J., concurs in result.

WHIPPLE, J., concurs.

GUIDRY, J.,

dissenting.

hi respectfully disagree, based on the facts and circumstances of this case, that Rep. Lorusso is entitled to amend his campaign finance disclosure form. Title 52, Section 1606 of the Administrative Code states that staff may request additions and corrections to any report, which would constitute a minor violation of the Campaign Finance Disclosure Act, but shall report any uncorrected or material violations of the Campaign Finance Disclosure Act to the Board. Therefore, I disagree that implicit in this provision is a procedure requiring the staff to permit additions and corrections to any report. Rather, it seems that the staff has discretion if they are presented with a minor violation, but material violations shall be reported to the Board. Further, at the Board hearing, the ethics administrator noted that Mr. Lorusso failed to present any corroborating evidence to the Board of human error in filling out the form, other than his assertion in his requests to the Board that the $30,000.00 was actually intended to be a loan rather than a contribution. Accordingly, absent any law to the contrary, and particularly given the policy behind the enactment of the Campaign Finance Disclosure Act, I find no abuse of the Board’s discretion in affirming the conclusion in its advisory opinion that Mr. Lorusso may not materially amend his finance report to reflect the $30,000.00 contribution as a loan.

      . See generally La. R.S. 18:1481-1532.

      . La. R.S. 18:1495.4B(4) states in relevant part, “A report shall be filed for a candidate for each regularly scheduled election in which the candidate participates according to the following schedule.... Each candidate shall file a report no later than the tenth day prior to the primary election which shall be complete through the twentieth day prior to the primary election.”

      . The record does not contain notice of mailing of the Board’s opinion. In his "Notice of Appeal,” Rep. Lorusso represents that he received written notice on January 5, 2011, and that his motion is timely. See La. R.S. 42:1141.1 D, cross-referencing § 1142A, which allows an appeal to this court "if application to the [B]oard is made within thirty days after the decision of the [B]oard becomes final.” The Board has conceded the timeliness of Rep. Lorusso’s appeal.

      . Thus, we pretermit review of the propriety of Rep. Lorusso’s request for a declaratory opinion by email,

      . If the opinion issued on November 19, 2010 were not a "declaratory opinion” within the specifications set forth in La. R.S. 42:1141.1, then it is an implicit refusal by the Board to issue a declaratory opinion which, under La. R.S. 42:1142, would be subject to this court’s supervisory jurisdiction.

      . La. R.S. 18:1495.5 B provides in relevant part:
      Each report required to be in conformity with this Section shall contain the following information ...
      (4) Contribution(s) received during the reporting period for which the report is being completed shall be reported, and the same shall be reported irrespective of the amount thereof as follows:
      (a) The full name and address of each person who has made one or more contributions to and which have been received and accepted by the candidate during the reporting period; the aggregate amount of such contributions, except in-kind contributions, from each person, and the date and amount of each such contribution; and a brief description of each in-kind contribution from each person, the valuation thereof made by the candidate and the campaign treasurer, and the date(s) of the in-ldnd contribution.
      (b) The aggregate amount of all contributions, other than in-kind contributions, received and accepted during the reporting period.
      (c) The aggregate valuation of in-kind contributions received during the reporting period....
      (9) The date and amount of each loan for campaign purposes made or received by the candidate to or from any person or political committee during the reporting period, together with the full name and address of the lender, of the recipient of the proceeds of the loan, and of any person who makes any type of security agreement binding himself or his property, directly or indirectly, for the repayment of all or any part of the loan.

        See also La. R.S. 18:1483(6) defining a contribution and specifically providing that a contribution does not include a loan; and La. R.S. 18:1483(10) defining a loan.

      . La. R.S. 18:1505.1 C states, "Failure to disclose or failure to disclose accurately any information required to be reported by this Chapter shall constitute a violation of this Chapter.”

      . La. R.S. 18:1505.4 provides in relevant part:
      B. Any candidate ... or any other person required to file reports under this Chapter who knowingly and willfully fails to disclose, or knowingly and willfully fails to accurately disclose, any information required by this Chapter to be disclosed in the reports required herein, may be assessed a civil penalty for each day until such information is disclosed by amendment to the appropriate report of such candidate, political committee, or other person. "Knowingly and willfully”, for purposes of this Subsection, means conduct which could have been avoided through the exercise of due diligence.

      . La. R.S. 42:1134 A states:
      (1) The board may adopt, amend, repeal, and enforce rules and regulations in the manner provided by the Administrative Procedure Act to carry out the provisions and purposes of this Chapter and any other law within its jurisdiction. (Footnote omitted.)
      (2) The board shall provide for procedural rules governing the establishment and implementation of time periods for the dismissal of a complaint, the filing of a formal charge, the notification of the parties of the rendition of a decision, and the assessment of penalties,

      . "Staff” is defined in § 101, of Chapter 1 of Title 52, as "the ethics administrator, the executive secretary and the employees of the Ethics Administration Program.” And "Ethics Administration Program” is defined in that same section as "the unit of the Department 0f Civil Service and those employees who provide staff support for the [B]oard.”


source: Caselaw Access Project

author: THIBODEAUX, Chief Judge.

license: Public Domain

text:
    Freda J. Graves LACOMBE v. Paul Wilray LACOMBE.
    No. 11-1178.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 1, 2012.

      W. Glenn Soileau, Breaux Bridge, LA, for Defendant/Appellant, Paul Wilray La-combe.
    Laura L. Davenport, Laura L. Davenport, LLC, Lafayette, LA, for Plaintiff/Appellant, Freda J. Graves Lacombe.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JOHN D. SAUNDERS, and J. DAVID PAINTER, Judges.
   THIBODEAUX, Chief Judge.

|, The defendant, Paul Lacombe, appeals from judgments which judicially accepted the sworn detailed descriptive list of the plaintiff, Freda Lacombe, for use in partitioning the community property. Finding that the trial court’s decision was correct, but that the language in the judgment was too expansive, we affirm in part and reverse in part the judgments of the trial court.

I.

ISSUES

We will decide whether the trial court manifestly erred in accepting the plaintiffs sworn descriptive list for use in partitioning the community of assets and liabilities between the parties.

II.

FACTS AND PROCEDURAL HISTORY

In 2001, Freda filed a petition for divorce under La.Civ.Code art. 102. She averred that she was in need of and entitled to “spousal support as agreed” in the amount of $1,400.00 per month “to pay bills of the community and to live.” Freda asked to remain in the family home, sought temporary and permanent spousal support, and requested a rule to show cause on these issues. Paul and Freda had previously executed a hand-written agreement regarding the $1,400.00 payments and certain items of community property. A judgment of divorce was granted in May 2002.

In February 2009, Paul petitioned for a judicial partition of the remaining community property, seeking reimbursement for payments made and funds expended by him for the benefit of the community. On February 17, 2009, |2the parties were ordered to file Detailed Descriptive Lists within forty five days. Neither party complied.

In September 2009, Freda filed a “Rule for Final Support.” She asserted that, pursuant to the mutual agreement in 2001, Paul had paid the $1,400.00 per month (in the form of a payment of $700.00, a payment of $270.00, and payment of the house note at $430.00); however, he stopped the payments in November of 2008, “suddenly and without warning.”

After a hearing, the trial court entered a written judgment on April 30, 2010, ordering Paul to pay Freda spousal support of $1,000.00 per month.

In May 2010, Paul hired a new attorney and filed another petition for partition, offset, reimbursement, reduction of support, and misappropriation of funds, seeking an offset for the $1,400.00 payments to Freda, pursuant to the hand-written agreement. He also asserted that Freda had used the funds for personal use instead of paying off community debts.

On June 7, 2010, Freda filed á motion for contempt, asserting that Paul had not paid any of the ordered support of $1,000.00 per month. Freda further asserted that Paul was in contempt; that her income was only $343.00 per month [social security disability]; and that she was entitled to attorney fees. Freda filed various exceptions to Paul’s petition for partition, arguing that issues of income and peremption were res judicata, having been decided in a previous hearing. She further argued that Paul had no right of action to file a duplicative petition for partition, having filed a petition for partition of the same property in February 2009.

On December 29, 2010, the trial court entered judgment finding Paul in contempt of court for failure to pay Freda spousal support in the amount of $5,266.67. The judgment awarded Freda reimbursement from Paul, to be deducted from Paul’s one-half interest in the proceeds from the sale of the marital home. |sThis judgment attached “Written Stipulations” signed by the parties on December 10, 2010, and “approved and affirmed” by the trial court on December 29, 2010.

On April 4, 2011, Freda filed a detailed descriptive list indicating that the home had been sold as of March 29, 2011. The movable property included a one-half interest in the $59,606.82 proceeds of the sale of the home already deposited in the registry of the court. Freda estimated total remaining community liabilities at $7,500.00. She calculated net community assets at $48,781.82. She claimed total reimbursements of $50,757.16 ($40,700.00 for one half of bills paid to seven creditors over eighty-nine months; $3,291.19 for one half of cost of home improvements; and $6,765.97 in closing costs). Freda’s descriptive list showed that she owed reimbursement to Paul of $12,806.00 for bills over a twenty-eighth-month period, but it provided no detail as to the source of these bills. Paul still had not filed a sworn descriptive list.

On April 28, 2011, Freda filed a rule to show cause why her descriptive list should not be accepted and deemed a judicial determination of the community assets and liabilities. The rule was set for May 31, 2011.

Paul’s attorney, due to various missteps in his law office, did not appear for the hearing or file a detailed descriptive list. In oral reasons at the hearing, the trial court granted Freda’s request to have her descriptive list judicially accepted in determining the assets and liabilities of the former community property regime. Freda prepared a written judgment which was not signed at the time.

A week after the hearing, Paul’s attorney filed Paul’s descriptive list, asserting that Paul was due a one-half interest in the sale proceeds of the home; |4that there were no remaining community debts; and, that Paul had paid community liabilities of $82,227.07, for which he was due a one-half reimbursement of $41,113.54. Paul’s attorney also filed a motion to have the rule reset, asserting that' his law office had moved the previous October to 219 W. Bridge Street, Breaux Bridge, that Freda’s attorney had used the old address at 1454 E. Bridge Street for service, and that his office had never been served with the rule date. He also filed a motion to compel the discovery deposition of Freda, which was ultimately granted.

Freda filed motions to quash the deposition, to request sanctions pursuant to La. Code Civ.P. art. 863, and to oppose the rule to reset the hearing on the descriptive list, asserting that her rule to show cause on her descriptive list was faxed to and received by Paul’s attorney on March 31, 2011. She attached a copy of the fax confirmation page, which supports the assertion, but the date was April 25, 2011. She also attached a cover-letter of that date to the clerk of court showing the filing of Freda’s descriptive list. Freda further attached proof of payment to the sheriffs office for physical service of the May 31, 2011 rule date. The sheriffs return shows service at the old office address of Paul’s attorney on May 5, 2011, but it also shows that Robin Constane, a secretary in his law office, signed for and accepted the service.

Paul’s attorney filed a memorandum on the community property partition asserting that he paid $1,400.00 per month for six and one half years and paid the house note for ten years, while Freda lived in the family home. He acknowledged his new secretary’s receipt of service on the rule on Freda’s descriptive list while he was out of the office for surgery; he acknowledged his office’s failure to calendar the hearing, and he provided documentation that he was in court on another matter on May 31, 2011, at the time of the actual hearing on Freda’s descriptive list. Freda filed a reply memorandum which included a request |5to have a written judgment, memorializing the oral judgment accepting her descriptive list, signed and executed by the trial court.

On July 11, 2011, the trial court heard arguments on Paul’s motion to reset, and on Freda’s motions to quash, execute judgment, and request sanctions. Support staff members of both attorney’s law offices testified regarding whether service was effected on Paul’s attorney for the May 31, 2011 rule to show cause on Freda’s descriptive list. No testimony was introduced regarding the merits of partition or the content of the two disparate descriptive lists. At the end of the hearing, the trial court found that service had been properly effected on Paul through his attorney, pursuant to La.Civ.Code art. 1235(B), that the attorney failed to appear and failed to timely file a descriptive list.

The trial court stated that he reacknow-ledged his oral order making Freda’s detailed descriptive list the one to be used by the trial court in any partition proceeding. He then signed the judgment that Freda had prepared six weeks earlier, after the hearing on May 31, 2011, which purported to memorialize his oral ruling on that date. This is shown in the record as the judgment under appeal. However, the trial court then signed another judgment denying Paul’s motion to reset the hearing on the descriptive list and granting Freda’s request for execution of the first judgment. Paul attaches both judgments, and since they are both the result of the July 11, 2011 hearing and are incorporated with each other by reference, we will consider them together.

_k.ni.

STANDARD OF REVIEW

An appellate court may not set aside a trial court’s findings of fact in absence of manifest error or unless it is clearly wrong. Stobart v. State, Through DOTD, 617 So.2d 880 (La.1993); Rosell v. ESCO, 549 So.2d 840 (La.1989).

IV.

LAW AND DISCUSSION

Paul Lacombe assigns twelve errors on appeal and cites no jurisprudence in support of his arguments. Some of his arguments are premature since no partition proceeding has been held and since he has been granted the right to take Freda’s deposition. Some of the issues argued by Paul have been determined by stipulation between the parties, or they were previously ruled upon and not appealed. We find and will address three central issues: (1) the peremption of Freda’s claims for spousal support; (2) the trial court’s judicial acceptance of Freda’s sworn detailed descriptive list; and, (3) the handling of the parties’ reimbursement claims.

Paul asserts that the trial court was wrong in ordering him to pay spousal support more than eight years after the divorce and without having been ordered to pay spousal support or voluntarily paying spousal support.

As a threshold matter, Paul asserts that, as a result of the trial court’s judgment accepting Freda’s descriptive list, Paul will have to pay again bills that he has already paid between 2001 and 2008. He argues that the entire $1,400.00 per month that he sent Freda was to go toward community debts. This is not correct. The agreement between Paul and Freda indicates that the funds were for debts and living expenses. Moreover, in an earlier hearing, the trial judge did not find a meeting of the minds within the agreement, and both parties entered into |7written stipulations, one of which stated that Freda did not misappropriate funds because there was never an order commanding her to pay community debts with the funds paid to her by Paul.

“A stipulation has the effect of a judicial admission or confession, which binds all parties and the court. Stipulations between the parties in a specific case are binding on the trial court when not in derogation of law. Such agreements are the law of the case.” Becht v. Morgan Bldg. & Spas, Inc., 02-2047, p. 5 (La.4/23/03), 843 So.2d 1109, 1112, cert. denied, Morgan Bldgs. & Spas, Inc. v. Becht, 540 U.S. 878, 124 S.Ct. 289, 157 L.Ed.2d 142 (2003) (quoting R.J. D’Hemec-ourt Petroleum, Inc. v. McNamara, 444 So.2d 600, 601 (La.1983), cert. denied, 469 U.S. 820, 105 S.Ct. 92, 83 L.Ed.2d 39 (1984)). Accordingly, if the $1,400.00 payments were not court-ordered, they were voluntary.

Consequently, Paul’s arguments must fail regarding the peremption of Freda’s claim for spousal support under La. Civ.Code art. 117(3). While Paul argues that Freda waited eight years to petition for spousal support, this simply is not true. She asked for spousal support in her initial petition for divorce in April 2001, even though the parties had agreed, without court order, that Paul would send monthly payments of $1,400.00. When Paul stopped the voluntary payments in November 2008, Freda filed a rule for final support in September 2009. Hence, | Sshe was well within the three-year period required by Article 117(3) when she filed for final support ten months after the last voluntary payment was made.

In fact, the stipulations attached to the December 29, 2010 judgment admit that the January 11, 2010 oral judgment had already adjudicated that the $1,400.00 payments were voluntary and that peremption did not apply. Accordingly, the stipulations attached to the judgment and referenced in the judgment by the trial court constitute a written judgment. See McIntyre v. Becker, 05-0257 (La.App. 4 Cir. 8/3/05), 918 So.2d 40.

Paul Lacombe states in his brief that “good cause was shown when the court refused to allow Paul Lacombe to file a Sworn Descriptive List when both parties failed to file within 45 days and both were over two years late in filing.” Citing no jurisprudence, Paul argues that, under La. R.S. 9:2801, both descriptive lists were filed over two years late, but that only he was punished when the court refused to accept his list setting forth different liabilities and reimbursements due. Paul further argues that he had shown good cause for missing the hearing which his attorney failed to calendar.

Louisiana Revised Statutes 9:2801 provides in pertinent part:

(A) When the spouses are unable to agree on a partition of community property or on the settlement of the claims between the spouses arising either from the matrimonial regime, or from the co-ownership of former community property following termination of the matrimonial regime, either spouse ... may institute a proceeding, which shall be conducted in accordance with the following rules:
(l)(a) Within forty-five days of service of a motion by either party, each party shall file a sworn detailed descriptive list of all community property, the fair market value and location of each asset, and all community liabilities. For good cause shown, the court may extend the time period for filing a detailed descriptive list. If a party fails to file a sworn detailed descriptive list timely, the other party may file a rule to show cause why its sworn detailed descriptive list should not be deemed to constitute a judicial determination of the community | 9assets and liabilities. At the hearing of the rule to show cause, the court may either grant the request or, for good cause shown, extend the time period for filing a sworn detailed descriptive list. If the court grants the request, no traversal shall be allowed.

La.R.S. 9:2801 (emphasis added).

In this case, on February 17, 2009, following Paul’s first petition for a judicial partition of community property, both parties were ordered to file detailed descriptive lists within forty-five days. Neither did so. Over a year later, after various motions, hearings, and rulings on spousal support, Paul hired a new attorney and filed a second petition for partition in May 2010, which also sought offset, reimbursement, reduction of support, and a ruling on misappropriation of funds. Almost a year later, after filing various motions, exceptions, and reconventional demands, Freda filed her detailed descriptive list on April 4, 2011. Freda’s list therefore was filed over two years after the court’s order to do so in February 2009, as correctly argued by Paul. Paul, however, still had not filed his sworn descriptive list. On April 28, 2011, Freda filed a motion for a rule to have her list deemed a judicial determination of the community assets and liabilities, and a hearing was set for May 31, 2011. Paul did not file his list prior to the hearing, nor did his attorney appear at the hearing. At the end of the hearing, the trial court orally ruled that Freda’s list was judicially accepted and would be used in determining the community assets and liabilities.

While the record does not contain a transcript of that hearing, La.R.S. 9:2801(A)(l)(a) appears to have been followed, at least orally. When a party fails to file a list timely, the other party may file a rule to show cause why her list should not be used. At the hearing on the rule to show cause, the judge can grant her request or grant the other party an extension for good cause shown. If, however, after the hearing, the court grants the request of the one seeking the rule on her list, “no traversal shall be allowed” from the other party. La.R.S. | in9:2801(A)(l)(a). That is exactly what happened in this case. The consequences to Paul are not a result of filing his list over two years after the order to do so in 2009. His failure is in not filing a list until after Freda availed herself of La.R.S. 9:2801(A)(1), and, until after the hearing had occurred and was ruled upon and his right to traversal was foreclosed. Moreover, when Paul finally filed his list on June 6, a week after the missed hearing on May 31, the court had already accepted Freda’s list and was not required to grant Paul a new hearing. This is supported by the jurisprudence.

Pursuant to Fontana v. Landry, 09-322 (La.App. 3 Cir. 10/7/09), 20 So.3d 578, the trial court was required to hold an evidentiary hearing on whether Paul had received service and notice of the rule to show cause, which was done in this case. However, the court was not required to grant a new trial on the list as it pertained to assets and liabilities. In fact, in Charles v. Charles, 05-129 (La.App. 1 Cir. 2/10/06), 923 So.2d 786, the first circuit found that it was legal error to address traversal of the assets and liabilities listed in the wife’s sworn descriptive list since those had already been deemed a judicial determination of the community of assets and liabilities. With regard to Paul’s arguments that he should not be punished for his attorney’s failure to appear, “Louisiana jurisprudence ... does not consider delay or error in the attorney’s performance of his duty, even if inadvertent, as grounds for granting a new trial.” Gauthier v. Gauthier, 04-198, pp. 12-18 (La.App. 3 Cir. 11/10/04), 886 So.2d 681, 689.

In Williams v. Williams, 07-541 (La. App. 3 Cir. 10/31/07), 968 So.2d 1234, we discussed Charles and our decision in Gau-thier, articulating as follows:

Louisiana law provides a procedure for a former spouse to have their sworn detailed descriptive list deemed a judicial determination of the community assets and liabilities if the other spouse fails to file their own detailed descriptive list. La.R.S. 9:2801(A).... [T]he trial court cautioned Thomas Williams that ... he would be stuck with what happened if he failed to file pleadings Inwithin the prescribed time frame. At the close of the hearing, the trial court orally ruled that Joyce Williams’s sworn detailed descriptive list was being judicially recognized as the community of assets and liabilities; it noted, however, that Thomas Williams would be able to offer some input as to how the items on the list would be divided at trial on the merits.

Williams, 968 So.2d at 1237 (footnote omitted).

The Williams court further stated that in Gauthier, 886 So.2d at 688, a panel of the court had held that, “[Ojnee the court had adopted [the wife’s] list as the judicial determination of the community property, [the husband] could not traverse that list. La.R.S. 9:2801.” The court then referenced Charles, 923 So.2d at 788, where the first circuit stated:

Because the trial court had deemed at the [] hearing that [the wife’s] sworn detailed descriptive list constituted a judicial determination of the community assets and liabilities, at the trial on the merits, the only issues before the trial court were the valuation of the [ ] truck and the patio cover, the distribution of these assets, the distribution of the [bank] loans, any resulting equalizing payment that may have been due subsequent to the partition, see La, R.S. 9:2801 A(4), and [the wife’s] claim for reimbursement.

Williams, 968 So.2d at 1238 (footnote omitted).

In Williams, we explained that, “[d]e-spite the fact that the trial court had previously deemed the detailed descriptive list filed by Joyce Williams a judicial determination of the community, Thomas Williams was free to challenge the reimbursement claim of his former wife at the [subsequent] partition trial.” Id.

Here, we note from the record that the partition trial has not taken place, and the trial court has previously entered a ruling that Paul would be allowed to depose Freda. Therefore, ostensibly, Paul is being permitted to gather evidence to challenge Freda’s reimbursement claims at the trial on the merits of the partition of community property, in keeping with the above jurisprudence. However, that is 112not what the judgment under appeal provides, and to that extent we must reverse a portion of the language in the judgment.

More specifically, the judgment, prepared by Freda following the May 31, 2011 hearing and signed by the trial court on July 11, 2011, stated as follows:

IT IS ORDERED, ADJUDGED AND DECREED that the Detailed Descriptive List of Freda J. Graves La-combe in its entirety, including the reimbursement claims contained in the List, are accepted as true and are deemed to constitute a judicial determination of the community assets and liabilities.

Based upon the foregoing jurisprudence and La.R.S. 9:2801, a party can obtain a rule to have its descriptive list accepted as a judicial determination of the community’s assets and liabilities, pursuant to (A)(1), but the parties remaining claims and the allocation of the assets and liabilities are partitioned in accordance with La.R.S. 9:2801(A)(4) and its subparts (a) through (f). Accordingly, the judgment prepared by Freda, and signed by the court over a month later, should not have included language ordering that Freda’s list be accepted in its “entirety, including the reimbursement claims contained in the List.”

Because the trial court granted Paul the right to depose Freda, and because the court referenced future partition proceedings, we believe that the trial court inadvertently accepted the language in the judgment, including the misstatement of the hearing date. This is true because a pure acceptance of Freda’s entire list, including her reimbursement claims, would essentially negate the need for further proceedings, evidence, or depositions. We, therefore, affirm the trial court’s acceptance of Freda’s descriptive list as it pertains to the assets and liabilities of the community, and we reverse the portion of the first judgment, signed on July 11, 2011, to the extent that the judgment indicates a blanket acceptance of her claims on reimbursement. In this case, the parties’ | ^reimbursement claims should be addressed at the partition proceedings on the merits.

With regard to the second judgment resulting from the July 11, 2011 hearing, signed on July 19, 2011, in the interest of judicial economy, we affirm that judgment. As explained above, the trial court did not err in denying Paul’s request to reset the hearing and allow him to traverse Freda’s list as it pertains to the assets and liabilities owned by the former community. Likewise, the award of attorney fees in the second judgment is statutorily allowed under La.R.S. 9:2801(C).

Y.

CONCLUSION

Based upon the foregoing, we reverse in part, and affirm in part the first judgment of July 11, 2011. We affirm the second judgment signed on July 19, 2011, as a result of the hearing on July 11, 2011. Costs are assessed to Paul Wilray La-combe.

REVERSED IN PART; AFFIRMED IN PART.

      . When there are no minor children, as in this case, La.Civ.Code arts. 102 and 103.1 require proof of living separate and apart for 180 days after service of process of the petition.

      . The first four signed stipulations, attached to the December 2010 judgment, state that: (1) Freda did not misappropriate funds because there was never an order commanding her to pay community obligations with funds paid to her by Paul; (2) the court’s January 11, 2010 oral judgment found that prescription/peremption did not apply to Freda's request for spousal support; (3) the same judgment found that Paul’s payments of $1,400.00 per month were voluntary spousal support payments; (4) no material change of circumstance had occurred which would warrant modification of spousal support at the time.

      . The first judgment was filed by Freda on June 7, 2011, following the hearing that Paul missed on May 31, 2011. It contained a typographical error on the first line wherein it states that the matter was heard on March 31, instead of the correct date of May 31. The trial judge did not sign this judgment until the end of the hearing on July 11, 2011, on Paul's motion to reset the rule. He did not make note of the typographical error.

      . The right to claim after divorce the obligation of spousal support is subject to a per-emption of three years. Peremption begins to run from the latest of the following events:
      (1) The day the judgment of divorce is signed.
      (2) The day a judgment terminating a previous judgment of spousal support is signed, if the previous judgment was signed in an action commenced either before the signing of the judgment of divorce or within three years thereafter.
      (3)The day of the last payment made, when the spousal support obligation is initially performed by voluntary payment within the periods described in Paragraph (1) or (2) and no more than three years has elapsed between payments.
      La.Civ.Code art. 117.


author: ROLAND L. BELSOME, Judge.

text:
    Kirk E. PREST, et al. v. LOUISIANA CITIZENS PROPERTY INSURANCE CORPORATION, et al.
    No. 2011-CA-0851.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 1, 2012.

      Dewey M. Scandurro, Scandurro & Lay-risson, L.L.C., New Orleans, LA, for Plaintiff/Appellee.
    Gus A. Fritchie III, Kelly G. Juneau, Irwin Fritchie Urquhart & Moore LLC, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Chief Judge CHARLES R. JONES, Judge DENNIS R. BAGNERIS, SR., Judge ROLAND L. BELSOME).
   ROLAND L. BELSOME, Judge.

I,Insured brought an action for damages against his insurance agency and insurer, for failure to procure increases in the coverage limits for his commercial property. After a trial on the merits, the trial court found in favor of the insured and awarded general and special damages against the insurance agency. For the following reasons, we affirm in part and amend in part.

Prior to Hurricane Katrina, the buildings of Fin & Feather, L.L.C. and Fin & Feather Chalets, L.L.C., businesses owned and operated by Kirk Prest and located in Plaquemines Parish, were insured by Louisiana Citizens Property Insurance Corporation (“Citizens”). On October 30, 2004, Prest renewed his commercial property insurance policy with Citizens through the insurance agency of Kennedy, Lewis, Ren-ton & Associates, Inc. (“KLR”). At that time, the policy had dwelling limits of $100,000.00 on building no. 1, $70,000.00 on building no. 2, and $80,000 on building no. 3.

Subsequently, on July 7, 2005, Prest contacted KLR to increase the coverage limits on the property, specifically as to building no. 1 from $100,000 to $150,000, and as to building no. 3 from $80,000 to $125,000. Prest requested the increases after making improvements and repairs to his property because it was previously 12damaged by Hurricane Ivan in 2004. Later, on August 18, 2005, Prest contacted KLR again to increase the coverage on the property, namely on building no. 1 from $150,000 to $215,000, and on building no. 2 from $70,000 to $100,000. •

On August 29, 2005, the buildings were extensively damaged by the catastrophic winds of Hurricane Katrina. Shortly thereafter, Prest notified Citizens of his losses and filed a claim to recoup the cost of the damages sustained. The commercial property was inspected and the damages were purported to be covered under the policy. However, on May 10, 2006, Prest was notified by Citizens that the increases of the coverage limits requested for the insurance policy were not in force on the date of loss due to the requests being received on November 18, 2005, which was after the date of loss. As a result, only a partial payment for $217,-423.04 was issued for the wind damage that destroyed Prest’s buildings instead of the total $540,000.00 of coverage he believed he had in place.

Moreover, on March 10, 2006, seven months after the last request for an increase in the coverage limits for the property was made, KLR sent a follow-up letter to Citizens inquiring about the status of both of the requested increases. In response to KLR’s inquiry, on May 10, 2006, Citizens responded to KLR maintaining the same position that it had taken with Prest, that the requests were not received until November 18, 2005, which was after the date of loss.

Accordingly, on August 28, 2006, Prest instituted an action for damages against Citizens, KLR, and Insurance Underwriters, Ltd. for breach of contract, alleging Citizens was arbitrary and capricious in refusing to pay the entire amount | sdue to its insured, and this delay was caused by KLR’s failure to procure the requested increases timely made by the insured, and KLR’s failure to notify the insured that the requested increases were rejected or not completed.

Prior to trial, Citizens tendered the remaining amount of the disputed coverage, specifically $322,576.96, to Prest on December 10, 2008 thereby settling all claims between the parties. After a trial on the merits, the trial court ruled against the remaining defendant, KLR. The judgment awarded $75,000.00 in general damages and $137,386.44 in special damages to Prest, Fin & Feather, L.L.C., and Fin & Chalets, L.L.C. for delay in payment and attorney’s fees and costs expended by Prest in their claim against Citizens. This appeal followed.

On appeal, KLR argues that the trial court erred 1) in finding it failed to use reasonable diligence in procuring the requested increases in coverage; 2) in allowing double recovery; 3) in awarding special damages not specifically pled; and 4) in awarding general damages or in the alternative, awarding excessive general damages.

On review, the appellate court will not disturb the lower court’s findings of fact absent a showing that it was clearly wrong or manifestly erroneous. Christy v. McCalla, 2011-0366, p. 9 (La.12/06/11), 79 So.3d 293 (citing Fontenot v. Patterson Ins., 09-0669, p. 8 (La.10/20/09), 23 So.3d 259, 267).

In Louisiana, an insurance agent who undertakes to procure insurance for another owes an obligation to his client to use reasonable diligence in attempting to place the insurance requested and to notify the client promptly if he has failed to 14obtain the requested insurance. Karam v. St. Paul Fire & Marine Ins. Co., 281 So.2d 728, 730 (La.1973). In an action to recover damages for the insurance agent’s failure to use reasonable diligence, the plaintiff must prove (1) there was an undertaking by the insurance agent to procure insurance, (2) the failure of the agent to use reasonable diligence to obtain the requested coverage and to notify the client of the absence of coverage, and (3) actions by the agent which warrant the client’s assumption that he was insured in the desired amount. Taylor v. Sider, 99-2521, p. 3 (La.App. 4th Cir.5/31/00), 765 So.2d 416, 418.

KLR asserts it used reasonable diligence in obtaining the insurance coverage increases requested by Prest. At trial Lisa Murden, an employee of KLR, testified that KLR attempted to increase the coverage limits for Prest’s property on two separate instances during the summer of 2005, prior to Hurricane Katrina. In each instance she assured Prest that the coverage would be in place on the day following the postmarked date.

On July 7, 2005, Ms. Murden sent a request to increase the coverage limits to Citizens via certified mail, and according to the confirmation receipt a Citizens’ employee signed for the letter which contained the request for an increase in the coverage limits. Once Citizens received the request, the duty to procure that coverage in a timely fashion rested with them. This Court finds that the certified mailing of the request and confirmation of its receipt is reasonable diligence in procuring the requested increases on that date. Thus, the record establishes, as to |sthe first request, that KLR did in fact use reasonable diligence to procure the requested increase in coverage limits. Thus, we find the trial court erred in finding that KLR breached its duty as to the first request.

However, we do not find that KLR used this same diligence in the second request made by Prest on August 18, 2005. As to that request, Ms. Murden testified that the second request made on August 18, 2005 was sent via regular U.S. mail to Citizens; however, there is no evidence to support that KLR verified the receipt of the request nor is there any evidence to support that Citizens actually received the request. In addition, Ms. Murden testified that generally KLR would follow-up on the status of the request for increases during hurricane season within 10 days from the date of the request due to Citizens having a tendency to delay on processing this type of request. Yet, according to her testimony, KLR did not follow-up on the request. Under these circumstances, we find that reasonable diligence on the part of the agent warrants the verification that the request was received.

Applying those principles outlined in Taylor to the facts of this case, we find that KLR failed to use reasonable diligence in procuring the second request for coverage increases, and failed to advise Prest that the increased coverage was not procured. Prest relied on KLR’s representation that the increases would be in effect the day after the postmarked date of the request. At that point, Prest fully believed he was covered for those amounts in the event of a loss. If a duty is imposed by the relationship of the parties and the duty is breached by an act or omission of a party then that party is liable for such acts of omission or commission. Taylor, supra. Accordingly, we do not find that the trial court erred in its findings that KLR breached its duty to Prest, as to the second requested | (¡increase, by failing to procure the coverage and later by not promptly notifying him that the coverage was not in place. Hence, KLR is liable to Prest for economic damages that he sustained due to that breach. Because the economic damages sought are directly related to the recovery of the insurance proceeds rather than the property damage, we do not find that awarding such damages results in double recovery.

Additionally, the trial court determined that KLR’s breach of duty owed to Prest resulted in more than mere economic damages. At trial, Denise Prest testified as to the effect the process of settling the property damage claim had on her and Mr. Prest. KLR asserts that a spouse’s testimony as to her husband’s mental and physical state is insufficient to support a finding of mental distress. We disagree. Mrs. Prest had firsthand knowledge of the effects this process had on Mr. Prest due to their daily interactions with one another as husband and wife; and Mrs. Prest’s ability to observe changes in Mr. Prest’s mental and physical state. According to her testimony, she described Mr. Prest as being very stressed causing him to have sleepless nights, suffer with depression and being on edge towards her and their children. She also testified that Mr. Prest sought medical treatment for his mental state through his general practitioner, and was prescribed medication for his condition. This evidence was not contradicted.

The difficulties and emotional turmoil suffered by Prest were certainly evident from the testimony provided. Additionally, even though medical attention was not sought from a mental health professional, there was some indication that Prest’s general practitioner provided prescriptive medication for the treatment of his for depression, inability to sleep, and his stressed state. On cross-examination Mrs. Prest responded to a question regarding professional help received by her 17husband for mental anguish stating, “we went in to see a regular general practitioner, and, you know, minor things were prescribed.” The record supports that Prest experienced more than the normal degree of worry and distress that would be associated with having one’s property damage claim settled. The increased mental anguish was caused by the shock and disbelief associated with the destruction of his property due to the storm coupled with finding out that he did not have the insurance coverage he had requested. Prest had responsibly taken steps to ensure his business and family would be financially protected in the event a hurricane or other occurrence damaged or destroyed his property, but due to the mishandling of his request he did not see any of the additional proceeds until more than three years after his loss.

Generally, mental anguish is associated with physical injury, however the Louisiana Supreme Court has recognized that mental anguish can result without physical injury. Moresi v. State Through Dept. of Wildlife & Fisheries, 567 So.2d 1081, 1095-1096 (La.1990). The Moresi court found that the common factor in the nonphysical damage mental anguish cases is that there is an “especial likelihood of genuine and serious mental distress, arising from special circumstances.” Id. at 1096. Given the level of mental anguish that was testified to together with the duration of time Prest had to endure the additional stress, this Court finds the award of general damages by the trial in the amount of $75,000.00 was appropriate.

KLR is also disputing the award of special damages. Special damages are those which can be fixed to pecuniary certitude. Stevens v. Winn-Dixie of Louisiana, 664 So.2d 1207 (La.App. 1 Cir. 1995). The Stevens court acknowledged the general rule that a trial court may not award special damages | ¿which have not been specifically plead. Id. at 1213. The court went on to explain that the “purpose of the specificity requirement is to avoid the imposition of surprise upon the defendant.” Id.

In the instant case, the petition prayed for judgment in Prest’s favor “for reasonable attorney fees to the extent provided by law.and all damages that are reasonable in the premises, for legal interest thereon and for such other legal general and equitable relief as is appropriate under the circumstances.” Although the petition failed to specifically allege special damages, during the discovery process Prest provided KLR with documents outlining the attorney fees and calculations showing interest. The attorney fees that were requested were for the action against Citizens, resulting from KLR’s failure to procure the requested increase in coverage. Prest did not seek attorney fees for the litigation against KLR. Further, La. C.C.P. art. 1154 provides for the expansion of pleadings to conform to the evidence presented.

We do not find KLR was prejudiced by surprise by Prest seeking special damages. As such, we find no error in the trial court awarding the special damages. However, we do find that based on our previous determination regarding KLR’s reasonable diligence in its first request for an increase, the special damages award for delay must be reduced. Originally, the trial court awarded $74,411.89 for that element of damage. Each request for increased coverage was for a total of $95,000.00. Thus, KLR should only be liable for the delay of $95,000.00 rather than $190,000.00. Accordingly, the damages due to delay are reduced to $37,205.95.

For the foregoing reasons, the judgment of the district court is amended to | ^reflect the reduction in special damages from $137,386.44 to $100,180.40; and the judgment is affirmed as to the general damage award of $75,000.

AMENDED AND AFFIRMED AS AMENDED

      . As per policy provisions, Prest was penalized for being underinsured.

      . On December 19, 2007, Insurance Underwriters filed a partial motion for summary judgment, which was granted by the trial court on April 3, 2008, dismissing all claims against it with prejudice due to Insurance Underwriters not being Prest's agent until after the date of loss.

      .Special damages were rendered as follows:
      Damages due to delay. $74,411.89
      Contingency attorney fees (17%) for claims against Citizens. $54,838.08
      Hourly fees ($ 100/hr) and costs for claims against Citizens. $ 8,136.47

      . (citing C.C. 3002 and 3003); Kieran v. Commercial Union Insurance Company of New York, 271 So.2d 889 (La.App. 4th Cir. 1973); Hight v. Stewart, 265 So.2d 640 (La.App. 2d Cir. 1972); Bordelon v. Herculean Risks, Inc., 241 So.2d 766 (La.App. 3d Cir. 1970); Shrv Teletype Coin Exchange, Inc. v. Commercial Union Insurance Company of New York, 191 So.2d 208 (La.App. 2d Cir. 1966); Arceneaux v. Bellard, 149 So.2d 444 (La.App. 3d Cir. 1963); Brown v. Stephens Buick Company, 139 So.2d 579 (La.App. 4th Cir.1962).


author: SAUNDERS, Judge.

text:
    ORACLE 1031 EXCHANGE, LLC, et al. v. Leonard BOURQUE, et al.
    No. 11-1133.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 8, 2012.

      Daniel C. Hughes, Attorney at Law, Lafayette, LA, Brett Page Furr, Edward D. Hughes, Taylor, Porter, Brooks, Baton Rouge, LA, for Plaintiff Appellant, Oracle 1081 Exchange, LLC, Delphi Oil, Inc.
    George Andrew Veazey, Huval, Veazey, etc., Lafayette, LA, for Defendant Appel-lee, Leonard Bourque, et al.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JOHN D. SAUNDERS, and J. DAVID PAINTER, Judges.
   SAUNDERS, Judge.

|! This is a mineral royalties case where a group of royalty owners answered a con-cursus with a reconventional and third party demand for penalties and attorney’s fees under the Louisiana Mineral Code against the assigned lessee of the oil leases, the oil well operator, and the oil well’s contract driller. The trial court adjudged that the lessee, operator, and contract driller, in solido, owed the royalty owners penalties in the amount of double damages of the outstanding royalties and attorney’s fees.

The lessee, operator, and contract driller appeal the trial court’s judgment. The operator and contract driller assert that they could not be held liable in judgment to the royalty owners under the leases, as they were not party to those leases. All three contend that their actions did not warrant punishment under La.R.S. 31:139 and that the amount of attorney’s fees awarded to the royalty owners was unreasonable. We affirm.

FACTS AND PROCEDURAL HISTORY:

In May 2007, Oracle 1031 Exchange, LLC (“Exchange”), Delphi Oil, Inc. (“Delphi”), and Oracle Oil, LLC (“Oracle”) (collectively “appellants”), identified a potential oil and gas prospect in the Lac Blanc Field in Vermilion Parish, Louisiana. Leonard Bourque, Margarite Connor Bo-urque, G & G Management, LLC, Gerald Patrick Veazey, Jane Lucille Miller Veaz-ey, Debra Ann Veazey Ebner, Neil Thomas Veazey, Donnie L. Veazey, Jacob Glen Veazey, Jean Bouse, Daniel J. Duhon, Paul F. Duhon, Charles P. Duhon, Madeline Zelda Choate Vaughan, Roberta Veazey Granberry, Mona Rae Vincent Hebert, Lanny Choate, GCL Investments, Vea-See Properties, LLC, Petro Pig, LLC, Bo & B LLC, Oh-Well, LLC, and LMCD & Family Royalties, LLC. (collectively “the royalty owners”) were all parties who had royalty interests in the Lucille B. Broussard No. |21 Well that was eventually created from the identified prospect in the Lac Blanc Field.

Mike Veazey, Jim Veazey, and Robert Nicholson (“the Veazey group”) entered into leases with the royalty owners for their royalty interests. Thereafter, those leases were assigned to Exchange.

In September 2007, Oracle began drilling the well. The well spudded on November 8, 2007. By April 2008, the well produced 725.54 barrels of oil. This oil was sold to Plains Marketing, L.P. Oracle received a net sum of $68,452.42. By June 2008, the well produced an additional 184.24 barrels of oil that sold for a net sum of $20,982.09.

On August 5, 2008, Delphi paid the Vermilion Parish School Board a total of $640.12 for the royalties the well produced. No other royalty owner was paid from the well in 2008.

On January 12, 2009, counsel for the royalty owners sent letters to Oracle, Delphi, and Exchange demanding payment for all royalties earned. In response, on February 12, 2009, Exchange filed a petition for concursus. Thereafter, Oracle deposited $18,897.00 into the court’s registry. The royalty owners answered the concur-sus and also filed a reconventional demand against Exchange and a third party demand against Delphi and Oracle for penalties and attorney’s fees under the Louisiana Mineral Code.

On February 2, 2011, the trial court ruled that even though the royalty payments had now been paid, under La.R.S. 31:139, the royalty owners were entitled to, from appellants, damages of double the amount of royalties due, interest of the sum from the date due, and reasonable attorney’s fees to be determined in a separate, further proceeding. Further, the trial court ruled that the royalty owners were not entitled to dissolution of the leases and that costs were to |sbe paid by appellants. After a hearing for the purpose of determining reasonable attorney’s fees, on April 12, 2011, the trial court found that the royalty owners were entitled to reasonable attorney’s fees of $30,502.50 and costs of $2,607.59 in which appellants were hable unto them in solido. Appellants, after being denied a motion for new trial, timely filed this appeal.

ASSIGNMENTS OF ERROR:

1. The trial court erred in casting Delphi and Oracle in judgment for penalties and attorney’s fees despite no contractual basis for any such obligation.

2. The trial court erred in finding that Exchange’s filing a petition for concur-sus to deposit funds in the registry of the court in response to the royalty owners’ demand was unreasonable and/or willful.

3. The trial court erred in awarding an unreasonable amount of attorney’s fees under Louisiana law.

ASSIGNMENT OF ERROR NUMBER ONE:

Delphi and Oracle contend that the trial court erred in casting them in judgment for penalties and attorney’s fees despite no contractual basis for any such obligation. We find no merit to this contention.

Delphi and Oracle’s assignment of error posits a question of law as to whether the trial court was legally correct in easting them in judgment for penalties and attorney’s fees under La.R.S. 31:137 et seq. Questions of law are reviewed de novo. McFadden v. Import One, Inc., 10-952 (La.App. 3 Cir. 2/9/11), 56 So.3d 1212.

In Louisiana, corporations are generally recognized as separate entities. However, the legal fiction of a distinct corporate entity may be disregarded when a corporation is so organized and controlled as to make it merely an instrumentality or adjunct of another corporation. If one corporation is wholly under the control of another, the fact that it is a separate entity does not relieve the latter from liability. In such. an instance, the former corporation is merely an alter ego or a business Rconduit of the latter. Green v. Champion Insurance Company, 577 So.2d 249, 257 (La.App. 1st Cir.), writ denied, 580 So.2d 668 (La.1991).

Grayson v. R.B. Ammon and Assoc., Inc., 99-2597, p. 14 (La.App. 1 Cir. 11/3/00), 778 So.2d 1, 16-17, writ denied, 00-3270 (La.1/26/01), 782 So.2d 1026 and wnt denied, 00-3311 (La.1/26/01) 782 So.2d 1027.

Statutes authorizing imposition of penalties are strictly construed. Guillory v. Lee, 09-75 (La.6/26/09), 16 So.3d 1104. Generally, in Louisiana, attorney fees are not allowed unless authorized by statute or provided for by contract. Sharbono v. Steve Lang & Son Loggers, 97-110 (La.7/1/97), 696 So.2d 1382.

Louisiana Revised Statutes 31:139 states (emphasis added):

If the lessee, pays the royalties due in response to the required notice, the remedy of dissolution shall be unavailable unless it be found that the original failure to pay was fraudulent. The court may award as damages double the amount of royalties due, interest on that sum from the date due, and a reasonable attorney’s fee, provided the original failure to pay royalties was either fraudulent or willful and without reasonable grounds. In all other cases, such as mere oversight or neglect, damages shall be limited to interest on the royalties computed from the date due, and a reasonable attorney’s fee if such interest is not paid within thirty days of written demand therefor.

In the case before us, the statutory basis for the trial court to award the royalty owners penalties and attorney’s fees is La. R.S. 31:139. It only allows for a lessee to be cast with penalties and attorney’s fees. Delphi and Oracle contend that neither are lessees, because it was Exchange that was assigned the pertinent leases.

Delphi and Oracle are correct that it was only Exchange that was assigned the leases and was the lessee. However, it is clear from the judgment reached by the trial court that it found Exchange was the alter ego of both Delphi and Oracle. The trial court can only rule as it did if it viewed the three entities as a singular entity conducting a single business enterprise. Given that it deemed the three liable for penalties and attorney’s fees in solido, it must have reached this result.

| ¡/Whether entities are a single business enterprise is a question of fact that is subject to the manifest error standard of review. Holly & Smith Architects, Inc. v. St. Helena Congregate Facility, 03-481 (La.App. 1 Cir. 2/23/04), 872 So.2d 1147.

A reasonable basis exists in the record for the trial court’s determination that Delphi, Oracle, and Exchange were a single business enterprise. Delphi and/or Oracle, not Exchange, paid royalties from the well to the Vermillion Parish School Board. Delphi and/or Oracle, not Exchange, deposited the money in the registry of the court for the concursus proceeding. Delphi and/or Oracle, not Exchange, received the checks for selling the oil that the well produced. Delphi and/or Oracle, not Exchange, paid the taxes of the sale of the oil that the well produced. Finally, all three entities are headed by the same person, Robert Brooks. Seemingly in line with the set-up of these entities, Delphi and Oracle have filed this appeal suspensively, suggesting that they are financially solvent, while Exchange filed devolutively, which could be taken to suggest otherwise.

Accordingly, we find no error manifest error by the trial court in determining that Delphi, Oracle, and Exchange are a single business enterprise. It is clear that Exchange, as assignee of the leases, can be held liable for penalties and attorney’s fees under La.R.S. 31:139. Thus, it is legally correct that Delphi and Oracle, when treated as a single business enterprise with Exchange, can be found liable in soli-do with Exchange for penalties and attorney’s fees under La.R.S. 31:137 et seq.

ASSIGNMENT OF ERROR NUMBER TWO:

The appellants assert that the trial court erred in finding that their filing a petition for concursus to deposit funds in the registry of the court in response to the royalty owners’ demand was unreasonable and/or willful. We find no merit to this argument.

|fiThe trial court awarded the royalty owners a penalty of double of the royalties owed and attorney’s fees under La. R.S. 31:139. The relevant language of La. R.S. 31:139 (emphasis added) is that, “[t]he court may award as damages double the amount of royalties due, interest on that sum from the date due, and a reasonable attorney’s fee, provided the original failure to pay royalties was either fraudulent or willful and without reasonable grounds.” The legislature’s use of “may” in La.R.S. 31:139 is explicit that the trial court’s award of double damages and attorney’s fees is discretionary. Appellate review of such discretionary decisions is conducted under the “abuse of discretion” standard of review.

Generally, an abuse of discretion results from a conclusion reached capriciously or in an arbitrary manner. The word “arbitrary” implies a disregard of evidence or of the proper weight thereof. A conclusion is “capricious” when there is no substantial evidence to support it or the conclusion is contrary to substantiated competent evidence.

Jones v. LSU/EA Conway Med. Ctr., 45,-410, p. 6 (La.App. 2 Cir. 8/11/10), 46 So.3d 205, 210 (citing Burst v. Board of Com’rs, Port of New Orleans, 93-2069 (La.App. 1 Cir. 10/7/94), 646 So.2d 955).

Here, appellants argue that their use of a concursus proceeding renders the trial court’s finding that they were “either fraudulent or willful and without reasonable grounds” unwarranted. The appellants’ argument is misguided.

In order to potentially award the discretionary penalty and attorney’s fees under La.R.S. 31:139, the trial court did not have to find that the appellants’ filing of a concursus was “unreasonable and/or willful.” The trial court merely had to find that the appellants’ actions in delaying payment of royalties to their owners were “either fraudulent or willful and without reasonable grounds.” La.R.S. 31:139. Such a finding is a finding of fact and reviewed by the manifest error standard of review.

|7As such, the stated assignment of error raised by appellants does not address the issue correctly. In brief, however, appellants make two arguments as to why the delay in payment of royalties from the time the oil was extracted to payment of the royalties in the concursus proceeding was reasonable.

Their first argument is that they were not sure that the minimal amount of oil extracted triggered a need for them to pay royalties. Appellants deemed this minimal amount of oil as, potentially, “test oil.” This contention borders on disingenuous.

Appellants certainly saw this extraction of a minimal amount of oil to trigger its need to pay another royalty owner, the Vermilion Parish School Board. Thus, the trial court was justified in finding that their claim of uncertainty of whether this oil was “test oil” has no merit.

Their second argument is that there were title problems with the land owned by the royalty owners. We find no merit to this argument.

Louisiana Revised Statute 31:188.1(D) precludes the lack of a division order as a reasonable basis for withholding payment of royalties where it states, in pertinent part: “[i]f the lessee fails to pay royalties solely because his lessor has not executed a division order as defined in this Article, the court shall award as damages double the amount of royalties due, legal interest on that sum from the date due, and reasonable attorney’s fees.” Thus, the portion of appellants’ argument related to a lack of division order is without merit.

Further, according to appellants, these title issues placed them “in a curious position: pay royalties to persons it was unsure had proper title or file a Petition for Concursus to protect the moneys until those issues could be resolved.” This characterization made by appellants is not well founded.

1 ^Appellants, if they were unsure of to whom they owed how much royalties, could have filed for the concursus proceeding prior to being prompted to take action by the royalty owners’ letter demanding payment. It is certain that appellants knew they had to pay someone, and it is clear that they chose not do to so until prompted. Accordingly, we find no manifest error made by the trial court in determining that appellants acted “either fraudulent or willful and without reasonable grounds.” La.R.S. 31:139.

ASSIGNMENT OF ERROR NUMBER THREE:

In their final assignment of error, appellants contend that the trial court erred in awarding an unreasonable amount of attorney’s fees under Louisiana law. This contention lacks merit.

The amount of attorney’s fees rests largely within the discretion of the trier of fact and should not be disturbed unless unreasonable or manifestly erroneous. Ardoin v. Kipling Korner Grocery, 02-1372 (La.App. 3 Cir. 3/5/03), 839 So.2d 1167.

Factors to be taken into consideration in determining the reasonableness of attorney fees include: (1) the ultimate result obtained; (2) the responsibility incurred; (3) the importance of the litigation; (4) amount of money involved; (5) extent and character of the work performed; (6) legal knowledge, attainment, and skill of the attorneys; (7) number of appearances made; (8) intricacies of the facts involved; (9) diligence and skill of counsel; and (10) the court’s own knowledge.

State, DOTD v. Williamson, 597 So.2d 439, 442 (La.1992) (footnote and citations omitted).

Louisiana Revised Statute 31:139 authorizes a trial court to award a “reasonable” attorney’s fee. This authorization of the trial court to award attorney’s fees results from actions that are “either fraudulent or willful and without reasonable grounds” La.R.S. 31:139. We find it clear that the award of ^attorney’s fees under this statute is penal in nature. As such, the value of the attorney’s fees does not need to be proven. See Dowden v. Commonwealth Life Ins. Co., 407 So.2d 1355 (La.App. 3 Cir.1981); Fontenot v. Town of Kinder, 377 So.2d 554 (La.App. 3 Cir. 1979); Trahan v. Rockwood Ins. Co., 284 So.2d 659 (La.App. 3 Cir.1973), writ denied, 379 So.2d 1102 (La.1980).

Moreover, it is clear from the record that the trial court’s decision to award the amount of attorney’s fees that it did was given extensive consideration. At a hearing specifically had to determine the amount of reasonable attorney’s fees, it stated the following:

[W]hen the award is substantially smaller than the amount asked for in attorney fees in this case ... you would say, [“]well, wait a minute, this doesn’t make sense, to award more attorney fees than was actually awarded after the trial.[”] But, of course, understand well, that at the trial, after listening to the evidence, the Court was satisfied that the case had, in fact, been proven, and in order to enforce that right, required that expenditure.”

Finally, there exists a reasonable basis in the record for the amount of attorney’s fees awarded. Present in the record are the engagement letters from counsel for the royalty owners delineating that an hourly rate of $225.00 would be charged. Appellants’ counsel stipulated that this rate is reasonable. Also included in the record is an exhibit submitted by counsel for the royalty owners detailing the hours worked in prosecuting the case. The amount of attorney’s fees awarded by the trial court equals the number of hours worked indicated in that exhibit multiplied by the reasonable hourly rate.

Accordingly, we find no merit to appellants’ assignment of error. After a thorough review of the record, we find a reasonable basis for the amount of attorney’s fees awarded in this case.

ANCILLARY MATTER:

1 ipThe royalty owners request additional attorney’s fees for work done on appeal. We grant this request.

“Generally, when an award for attorney’s fees is granted at the trial level, additional attorney’s fees are proper for work done on appeal. This is to keep the appellate judgment consistent with the underlying judgment.” Wilczewski v. Brookshire Grocery Store, 08-718, p. 18 (La.App. 3 Cir. 1/28/09), 2 So.3d 1214, 1226, unit denied, 09-456 (La.4/13/09), 5 So.3d 170.

Here, the royalty owners were granted attorney’s fees below. After reviewing the record, given the efforts to successfully defend the judgment awarding the royalty owners penalties and attorney’s fees, we award $5,000.00 in additional attorney’s fees for work done on appeal.

CONCLUSION:

Delphi Oil, Inc. and Oracle Oil, LLC raise three assignments of error. Oracle 1031 Exchange, LLC joins in the second two of these assignments of error. We find no merit to any of the assignments and affirm the trial court’s judgment in its entirety. Further, we award $5,000.00 in attorney’s fees for work done on appeal to Leonard Bourque, Margarite Connor Bo-urque, G & G Management, LLC, Gerald Patrick Veazey, Jane Lucille Miller Veaz-ey, Debra Ann Veazey Ebner, Neil Thomas Veazey, Donnie L. Veazey, Jacob Glen Veazey, Jean Bouse, Daniel J. Duhon, Paul F. Duhon, Charles P. Duhon, Madeline Zelda Choate Vaughan, Roberta Veazey Granberry, Mona Rae Vincent Hebert, Lanny Choate, GCL Investments, Vea-See Properties, LLC, Petro Pig, LLC, Bo & B LLC, Oh-Well, LLC, and LMCD & Family Royalties, LLC. We assess all costs of these proceedings to Oracle 1031 Exchange, LLC, Delphi Oil, Inc., and Oracle Oil, LLC.

AFFIRMED.


author: MAX N. TOBIAS, JR., Judge.

text:
    STATE of Louisiana v. Dion P. SIMMONS.
    No. 2010-KA-1508.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 15, 2012.

      Leon A. Cannizzaro, Jr., District Attorney, Nisha Sandhu, Brad Scott, Assistant District Attorneys, New Orleans, LA, for Appellee, State of Louisiana.
    Katherine M. Franks, Louisiana Appellate Project, Abita Springs, LA, for Defendant/Appellant, Dion P. Simmons.
    (Court composed of Judge TERRI F. LOVE, Judge MAX N. TOBIAS, JR., Judge PAUL A. BONIN).
   MAX N. TOBIAS, JR., Judge.

LThe Supreme Court of Louisiana has remanded the appeal of the defendant, Dion P. Simmons (“Simmons”), for consideration of Simmons’ remaining assignment of error not addressed and pretermitted in our original opinion in State v. Simmons, 10-1508 (La.App. 4 Cir. 5/18/11), 67 So.3d 525. See State v. Simmons, 11-1280 (La.1/20/12), 78 So.3d 743. The facts relating to this matter are addressed in both this court’s original opinion and the Supreme Court’s opinion; we do not repeat them here.

In remaining unaddressed assignment of error, Simmons urged that:

Then trial court erred in not granting a new trial when the officer testifying to having located a packet of crack cocaine “dropped” by Dion Simmons has now been indicted by a federal grand jury for not only falsifying a police report regarding the vicious beating of a suspect by his partner, but also for making “materially false statements and representations” to FBI agents investigating the death of the suspect. Dion Simmons was denied Due Process because the critical impeachment evidence was not disclosed to the defense despite request, impacting the trial process and undermining confidence in the verdict.

This assignment of error essentially asserts that the district court erred by denying a new trial based upon newly discovered evidence, involving the 29 July 1 g2010 federal indictment of Officer Moore of the New Orleans Police Department (“NOPD”). Although the indictment occurred after his trial, Simmons urges that he should have been apprised of the ongoing federal investigation.

La.C.Cr.P. art. 851 provides in pertinent part:

The motion for a new trial is based on the supposition that injustice has been done the defendant, and, unless such is shown to have been the case the motion shall be denied, no matter upon what allegations it is grounded.
The court, on motion of the defendant, shall grant a new trial whenever:
(3) New and material evidence that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before or during the trial, is available, and if the evidence had been introduced at the trial it would probably have changed the verdict or judgment of guilty....

In order to obtain a new trial based on newly discovered evidence, the defendant must show: (1) the new evidence was discovered after trial; (2) the failure to discover the evidence at the time of trial was not due to the defendant’s lack of diligence; (3) the evidence is material to the issues at trial; and (4) the evidence is of such a nature that it would probably have changed the verdict of guilty. La. C.Cr.P. art. 851(3); State v. Brisban, 00-3437, p. 12 (La.2/26/02), 809 So.2d 923, 931. A trial court assessing the legal merits of a motion for new trial is given considerable latitude in evaluating the reliability of the evidence and its impact on the verdict. State v. Brooks, 98-0693, p. 12 (La.App. 4 Cir. 7/21/99), 758 So.2d 814, 821. A trial court has much discretion in ruling on a motion for new trial. State v. Cureaux, 98-0097, p. 4 (La.App. 4 Cir. 5/26/99), 736 So.2d ls318, 321. Review of the trial court’s ruling is limited to determining whether the trial court abused its discretion. State v. Labran, 97-2614, p. 6 (La. App. 4 Cir. 5/26/99), 737 So.2d 903, 907.

Simmons urges that the state was less than candid about the ongoing federal investigation against Officer Moore as evidenced by the motion in limine made by the state just prior to trial; the state moved to prevent any mention of police conduct not related to this case, including any federal investigations. The state noted on the record that it had no intention of bringing up any police misconduct regarding the officers. Simmons now contests the credibility of Officer Moore, arguing that his conviction rests solely on the testimony of Officer Moore and that the evidence not divulged by the state seriously undermines the officer’s credibility. Notably, it is arguable whether Simmons has shown that the reputation evidence was not discoverable either before or during trial as required by La.C.Cr.P. art. 851(3).

La. C.E. art. 609.1 B states, “Generally, only offenses for which the witness has been convicted are admissible upon the issue of credibility, and no inquiry is permitted into matters for which there has only been an arrest, the issuance of an arrest warrant, a prosecution, or an acquittal.”

Under La. C.E. art. 608, reputation evidence to attack or support a witness’s credibility is limited to references to the witness’s character for truthfulness or untruthfulness. However, as noted in C.E. art. 608 B: “Particular acts, vices, or courses of conduct of a witness may not be inquired into or proved by extrinsic evidence for the purpose of attacking his character for truthfulness, other than | ^conviction of crime as provided in Articles 609 and 609.1 or as constitutionally required.”

Although only convictions can be used to impeach credibility as a general rule, many cases have held that possible or ongoing prosecutions that have not resulted in a conviction can be used to show bias or interest under La. C.E. art. 607 D(l). As stated in State v. Vale, 95-1230, 95-0577, p. 4 (La.1/26/96), 666 So.2d 1070, 1072:

This court granted certiorari because the trial court’s ruling [prohibiting the defense from cross-examining the witness about a pending charge], affirmed by the court of appeal, conflicted with numerous decisions by this court that to the extent exposure of a witness’s motivation is a proper and important function of the constitutionally protected right of cross-examination, a witness’s “hope or knowledge that he will receive leniency from the state is highly relevant to establish his bias or interest.” State v. Brady, 381 So.2d 819, 822 (La. 1980) (collecting cases); see also State v. Nash, 475 So.2d 752, 755-56 (La.1985). A witness’s bias or interest may arise from arrests or pending criminal charges, or the prospect of prosecution, even when he has made no agreements with the state regarding his conduct. Id.

Thus, alleged criminal conduct which has not resulted in a conviction may be elicited from a witness at trial to show bias or interest.

In the motion for new trial, Simmons suggests that Officer Moore was motivated to give favorable testimony to avoid harsh disciplinary proceedings or to ^obtain job security. However the record on appeal discloses no testimony given by Officer Moore that could have been directly impeached by extrinsic evidence of the alleged investigation against him.

For example, in State v. Cureaux, 93-0838 (La.App. 4 Cir. 10/27/94), 645 So.2d 1215, we held that the defendant could impeach Officer Taylor’s testimony that he had been a police officer for four years with extrinsic evidence that the officer had been suspended for some sixteen months. In State v. Hollins, 97-627 (La.App. 5 Cir. 11/25/97), 704 So.2d 307, the court found that evidence of an officer’s suspension was inadmissible for impeachment purposes because it did not involve a conviction. In a footnote, the court noted that had the officer testified at trial that he was an employee in good standing with the sheriffs office, then the defendant could have impeached him with extrinsic evidence that he had in fact been suspended. Also see State v. Thompson, 08-0874 (La. App. 4 Cir. 4/8/09), 10 So.3d 851, writ denied, 09-1044 (La.1/29/10), 25 So.3d 827 (where this court held that the trial court properly granted the state’s motion in li-mine because evidence that the officer was the subject of a pending conduct investigation regarding the officer’s alleged participation in a battery incident was not admissible as evidence of interest or bias to impeach the officer’s testimony in an unrelated prosecution for possession of cocaine).

Here, Officer Moore’s testimony was supported by the physical evidence and was significantly corroborated by NOPD Officer Gray’s testimony. Importantly, the evidence of the pending federal investigation against Officer Moore would not have been admissible at trial. In addition, this reputation evidence could probably have been discovered by the exercise of due diligence Rprior to appellant’s trial. As such, the district court did not abuse its discretion by denying the motion for new trial. The assignment of error is without merit.

For the foregoing reasons and the reasons assigned in our former opinion, as modified by the Supreme Court’s opinion, we affirm the conviction and sentence of Dion P. Simmons.

AFFIRMED.

      . The incident surrounds the beating death of Raymond Robair by NOPD Officer Williams and the subsequent cover-up by NOPD Officers Moore and Williams.

      . La. C.E. art. 607 D, in pertinent part, provides for the introduction of evidence for impeachment purposes:
      Attacking credibility extrinsically. Except as otherwise provided by legislation:
      (1) Evidence to show a witness' bias, interest, corruption, or defect of capacity is admissible to attack the credibility of a witness.