text:
    Delores JOSEPH v. OUR LADY OF THE LAKE REGIONAL MEDICAL CENTER.
    No. 2014-CA-0181.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 16, 2014.

      Michelle M. Sorrells, Baton Rouge, LA, for Plaintiff/Appellee, Delores Joseph.
    Phillip E. Foco, Baton Rouge, LA, for Defendants/Appellants, Our Lady of the Lake Regional Medical Center and Ollie Steele Burden Manor, Inc. d/b/a St. Clare Manor.
    Before PARRO, McDONALD, and CRAIN, JJ.
   CRAIN, J.

|2The defendants in this workers’ compensation proceeding appeal a judgment dismissing “this matter” and an order denying their motion for leave to file an amended responsive pleading. We amend the judgment of dismissal and, as amended, affirm the judgment. We reverse the order denying leave to the defendants to file an amended responsive pleading, and remand.

FACTS AND PROCEDURAL HISTORY

Delores Joseph instituted this proceeding by filing a claim against Our Lady of the Lake Regional Medical Center (OLOL) alleging an improper termination of her medical benefits. Joseph, who was employed with Ollie Steele Burden Manor, Inc. at the time of the subject accident in 2003, sought to recover penalties and attorney fees for the alleged improper termination of the benefits. OLOL and Ollie Steele filed a responsive pleading captioned “ANSWER” that admitted the occurrence of the work-related accident but denied that Joseph was entitled to any further medical benefits in connection with the accident. The defendants also alleged the following:

Defendants assert that Claimant has violated LSA R.S. 23:1208, and has made intentional misrepresentations in order to obtain worker’s compensation benefits. Defendants are entitled to all remedies available to it for that violation.

The pleading concludes with a prayer that provides, in pertinent part:

Defendants further pray for all recovery available to [them] under LSA. R.S. 23:1208 and further request the imposition of all applicable civil fines and penalties against Claimant in connection with her violation of said provision.

A certificate at the bottom of the pleading indicates that it was mailed to Joseph’s counsel, but the record contains no indication that the pleading was ever served by the sheriff or mailed to the plaintiff by certified mail.

|sThe workers’ compensation judge (WCJ) assigned a trial date and directed each of the parties to file a pre-trial statement that included an itemization of the issues to be adjudicated at the trial. The list of trial issues in the defendants’ pretrial statement includes the question of whether Joseph violated Louisiana Revised Statute 23:Í208 and thus forfeited her right to future benefits, and whether OLOL and Ollie Steele are “entitled to restitution in connection with said violation.” Joseph’s pre-trial statement reflects that her alleged violation of Section 23:1208 is an issue in the case, but her pretrial statement does not mention any claim by the defendants for restitution or penalties based upon that alleged violation.

Counsel for both parties appeared in court on the morning of trial; however, after the WCJ announced the docket, Joseph’s counsel stated, “Your Honor, first, before we get started, I would like to make an oral motion to dismiss with prejudice and walk away from the claim.” Defense counsel replied, “Judge, while we certainly can’t — we would object to dismissal of the case and would also point out that we have a request for relief in our answer, pursuant to our 1208 defense.” After reciting the pertinent allegations in the answer previously reproduced herein, defense counsel stated:

So we actually have a claim for reimbursement, slash, restitution in this case. And so [plaintiffs counsel] may be able to dismiss her client’s claim at this point with prejudice, but we still have a claim that we would like to go forward with.

The WCJ then ruled:

The Court grants the motion to dismiss with prejudice. Although the defendant stated the 1208 defense in its answer, it did not file a reconventional demand setting forth its own cause of action for monetary relief in the way of restitution or costs.
The dismissal is granted with prejudice. The [c]ase is dismissed.

The WCJ signed a judgment ordering “that this matter be dismissed with prejudice.” OLOL and Ollie Steele filed a motion for new trial and, alternatively, a |4motion for leave to file an amended re-conventional demand (collectively, “post-judgment motions”), which the WCJ denied. The defendants appealed the judgment of dismissal and contend that the WCJ erred by not finding that the defendants stated a valid reconventional demand in their answer. The defendants also assign as error the WCJ’s refusal to allow them to amend their responsive pleading.

LAW AND ANALYSIS

Section 23:1208A declares that it “shall be unlawful for any person, for the purpose of obtaining or defeating any benefit or payment under the provisions of this Chapter, either for himself or for any other person, to willfully make a false statement or representation.” A violation of the statute carries significant consequences, including criminal and civil penalties and the forfeiture of compensation benefits. La. R.S. 23:1208C and E. In addition to those penalties, restitution may be ordered for benefits claimed or payments obtained through fraud up to the time the employer became aware of the fraudulent conduct. La. R.S. 23:1208D.

In their first assignment of error, the defendants contend that the WCJ erred “by ruling that OLOL did not state a valid reconventional demand” in their answer for recovery against Joseph under Section 23:1208. In its oral ruling, the WCJ dismissed the “case” based upon its finding that OLOL “did not file a reconventional demand setting forth its own cause of action for monetary relief in the way of restitution or costs.” The WCJ later noted in an order denying the post-judgment motions that the “delays for filing [a] re-conventional demand had expired”; and in the order granting the appeal, the court wrote, “No Reconventional Demand was filed timely.”

The defendants’ answer includes allegations that Joseph violated Section 23:1208, that the defendants are entitled to “all remedies available to [them] for |fithat violation,” and prays for all recovery available under the statute. According to OLOL and Ollie Steele, those claims constitute a valid reconventional demand set forth in their answer in accordance with Louisiana Code of Civil Procedure article 1032, which provides:

An incidental demand shall be commenced by a petition which shall comply with the requirements of Articles 891, 892 and 893. An incidental demand instituted by the defendant in the principal action may be incorporated in his answer to the principal demand. In this event, the caption shall indicate appropriately the dual character of the combined pleading.

Although the WCJ did not identify the basis of its finding that the defendants “did not file a reconventional demand,” Joseph asserts on appeal that the finding is correct because the caption of the defendants’ answer did not indicate the dual character of the combined pleading as required by Article 1032. For support, Joseph relies on Parish of West Feliciana v. Thompson, 08-2155 (La.App. 1 Cir. 3/27/09), 2009 WL 839525, writ denied, 09-1261 (La.9/18/09), 17 So.3d 978, and Nelson v. Windmill Nursery of Louisiana, L.L.C., 04-2717 (La.App. 1 Cir. 9/23/05), 923 So.2d 715, 717. OLOL and Ollie Steele counter that it is well established that a court may overlook the failure to identify a reconven-tional demand in the caption where the other party is not prejudiced, citing Higdon v. Higdon, 385 So.2d 396, 398 (La.App. 1 Cir.1980); Cvitanovich v. Sorli, 347 So.2d 1204, 1206 (La.App. 1 Cir.1977); Bonomolo Limousines, Inc. v. Scheuermann, 99-832 (La.App. 5 Cir. 12/15/99), 747 So.2d 207, 211, writ denied, 00-0444 (La.3/31/00), 759 So.2d 74; and Greene v. Greene, 398 So.2d 59, 63 (La.App. 3 Cir.), writ denied, 405 So.2d 529 (La.1981).

We pretermit consideration of the legal effect of the omission of the phrase “reconventional demand” from the pleading’s caption because the pleading’s ¡(¡alleged nonconformity with the requirements of Article 1032 was not properly before the WCJ at the trial or on Joseph’s motion to dismiss her claim. The alleged failure of the pleading to conform with the requirements of Article 1032, and by reference therein, to Article 891, is an objection that must be raised by the opposing party through a dilatory exception. See La.Code Civ. Pro. art. 926A(4). A court cannot sua sponte raise a dilatory exception. See La.Code Civ. Pro. arts. 921, 926B; Moreno v. Entergy Corporation, 10-2268 (La.2/18/11), 64 So.3d 761, 762. If, as the defendants contend, the claims in their answer are sufficient to constitute a reconventional demand, the pleading must be served on the plaintiff by the sheriff or by certified mail. See La.Code Civ. Pro. arts. 1063, 1314; La. R.S. 23:1310.3B. The record contains no evidence of service in this manner, as the certificate on the face of the pleading confirms only that it was “mailed” to opposing counsel. Unless and until the pleading is served and any necessary exceptions are filed in response thereto, the legal effect of any noncompliance with Article 1032 has not been properly presented to the court for adjudication.

Joseph’s motion to dismiss her claim likewise cannot serve as a basis to dismiss anything more than her claim. Louisiana Code of Civil Procedure article 1671 contains no limitation on a party’s ability to dismiss her claim with prejudice; however, when an incidental demand has been pled prior to the plaintiffs motion, the subsequent dismissal of the principal action “shall not in any way affect the incidental action, which must be tried and decided independently of the principal action.” See La.Code Civ. Proc. art. 1039. Thus, while the WCJ was authorized to dismiss Joseph’s claim with prejudice as she requested, Joseph’s motion did not authorize the WCJ to dismiss any claims asserted by the defendants. The WCJ erred in signing a judgment that dismissed “this matter,” particularly after the court |7was presented with the defendants’ contention that the claims in their answer constituted a recon-ventional demand. Finding the WCJ’s judgment of dismissal to be overly broad, we exercise our authority to render any judgment which is just, legal, and proper upon the record, and amend the November 18; 2013 judgment to limit the dismissal to Joseph’s claims. See La.Code Civ. Pro. art. 2164.

OLOL and Ollie Steele also assign as error the WCJ’s refusal to allow the defendants to amend the pleading, contending that leave of court was either not required or that the WCJ abused its discretion in denying leave because no answer had been filed to their claims. The defen-dants cite Louisiana Code of Civil Procedure article 1151, which provides, in pertinent part, that a “plaintiff may amend his petition without leave of court at any time before the answer thereto is served.” See also La.Code Civ. Pro. art. 1156 (a petition in an incidental action may be amended or supplemented in the manner provided in Article 1151). Article 1151 also provides that a defendant may amend his answer once without leave of court at any time within ten days after it has been served.

Amendment of pleadings should be liberally allowed provided that the mov-ant is acting in good faith, the amendment is not sought as a delaying tactic, the opponent will not be unduly prejudiced, and trial on the issues will not be unduly delayéd. United Teachers of New Orleans v. State Board of Elementary and Secondary Education, 07-0031 (La.App. 1 Cir. 3/26/08), 985 So.2d 184, 199. |sThe legislature has expressly directed that the procedural rules are to be construed liberally with due regard for the fact that these rules are not an end in themselves, but rather implement the substantive law. See La.Code Civ. Pro. art. 5051; Giron v. Housing Authority of City of Opelousas, 393 So.2d 1267, 1270 (La.1981). Liberality is particularly appropriate in the amendment process. Giron, 393 So.2d at 1270; Taylor v. Babin, 08-2063 (La.App. 1 Cir. 5/8/09), 13 So.3d 633, 642, writ denied, 09-1285 (La.9/25/09), 18 So.3d 76. The decision as to whether to grant leave to amend or supplement a pleading is within the sound discretion of the trial court, and its ruling will not be disturbed on appeal except where an abuse of discretion has occurred and indicates a possibility of resulting injustice. United Teachers of New Orleans, 985 So.2d at 199.

The amendment proposed by OLOL and Ollie Steele sought to modify the caption to include a subtitle of “RECONVENTIONAL DEMAND” and alleged additional facts in support of their claim for recovery under Section 23:1208. The amendment is primarily curative in nature because it sought to resolve the alleged defect in the pleading’s caption that is asserted by Joseph on appeal. Allowance of the amendment will not delay the trial of the Section 23:1208 claims, as those claims had not yet been served or set for trial. Joseph is not prejudiced by the amendment because it does not attempt to raise any new claims against her. Rather, the defendants asserted the same claim for recovery under Section 23:1208 in their original answer and in their pre-trial statement. The injustice to OLOL and Ollie Steele from the denial of leave is evident, as Joseph is asserting on appeal that the pleading, in its current form, is objectionable because it does not comply with Article 1032.

We further note that if Joseph had previously objected to the pleading’s caption in the trial court by successfully pursuing a dilatory exception of nonconformity of the pleading with Articles 1032 and 891, OLOL and Ollie Steele |9would have been afforded an opportunity to remove the objection by an amendment to the pleading. See La.Code Civ. Pro. art. 933A. Given that a party has a right to remove this objection after it has been raised by an opponent in the trial court, we see no basis for preventing a party from removing the objection before it has been raised by an opponent in the trial court. Under these circumstances, the WCJ abused its discretion by refusing to grant leave of court to permit the filing of the amended reconven-tional demand.

CONCLUSION

We amend the November 18, 2013 judgment to provide as follows, and, as amended, affirm the judgment: “IT IS HEREBY ORDERED that the claims of Delores Joseph be dismissed with prejudice.” We reverse the November 18, 2013 order denying the alternative request for leave to file an amended reconventional demand, and we grant leave for the filing of the amended pleading. The case is remanded to the trial court for further proceedings, and all costs of this appeal are assessed to Delores Joseph.

JUDGMENT OF DISMISSAL AMENDED AND AFFIRMED AS AMENDED; ORDER DENYING MOTION FOR LEAVE REVERSED; CASE REMANDED.

      . Although OLOL is the only defendant named in Joseph’s claim, both OLOL and Ollie Steele will sometimes be collectively referred to herein as “the defendants.”

      . See also Evans v. Ivy, 428 So.2d 886, 889 (La.App. 1 Cir.1983); Jordan v. Jordan, 408 So.2d 952, 955 (La.App. 2 Cir.1981); Harding v. Wattigney, 62 So.2d 190, 196 (La.App.Orleans 1952).

      . Under the facts of this case, we do not construe the plaintiff’s limited appearance at trial to dismiss her claim as constituting a waiver of the service requirement. Cf. La.Code Civ. Pro. art. 928A; Blake v. Blake, 478 So.2d 617, 620 (La.App. 2 Cir.1985).

      . We recognize that Nelson also involved the granting of a motion to dismiss filed by the plaintiff where the defendant relied upon Section 23:1208. However, it appears that the defendant's answer in Nelson simply asserted Section 23:1208 "as an affirmative defense” to the payment of worker’s compensation benefits and did not expressly include a claim seeking recovery under the statute. See Nelson, 923 So.2d at 717. The court also pointed out that the dismissal was without prejudice and that granting such a dismissal did not prejudice Windmill because it "has every right to file its own claim for reimbursement of any benefits claimed or payments obtained by ... fraud.” Nelson, 923 So.2d at 716. In the present case, OLOL and Ollie Steele set forth claims for recovery of relief under Section 23:1208, and the WCJ dismissed the proceeding with prejudice. We distinguish Nelson on those grounds.

      . An answer may be served by regular mail. La. R.S. 23:1310.3B; La.Code Civ. Pro. art. 1313A(1). The certificate on defendants’ answer reflects that it was mailed to opposing counsel on April 11, 2012.

      . In light of this ruling, we do not consider the defendants' alternative argument that leave of court was not required to file the amendment under Article 1151.


source: Caselaw Access Project

author: PETERS, Judge.

license: Public Domain

text:
    Gay LOWERY v. JENA NURSING & REHAB CENTER.
    No. WCA 14-1106.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 23, 2014.
    Curtis Daniel Street, Street & Street, Monroe, LA, for PlaintiffiAppellant Gay Lowery.
    Stephanie L. Cheralla, Degan, Blanchard & Nash, New Orleans, LA, for Defendant/Appellee Jena Nursing & Rehab Center.

      Court composed of JIMMIE C. PETERS, JAMES T. GENOVESE and JOHN E. CONERY, Judges.
   PETERS, Judge.

_JjThis court, on its own motion, issued a rule for the appellants, Jena Nursing and Rehabilitation Center and Technology Insurance Company, to show cause, by brief only, why this appeal should not be dismissed as having been taken from a non-appealable, partial judgment. The appellants have filed a brief in response to this court’s rule to show cause. For the reasons given below, we recall the rule to show cause and maintain the appeal.

The claimant, Gay Lowery, sustained a back injury in a work related incident. Ms. Lowery’s physician, Dr. Michael Drerup, recommended surgery. Since the parties disagreed as to whether this procedure was necessary for the injuries sustained in the work related incident, this recommendation was presented to the Medical Director for the Office of Workers’ Compensation seeking approval pursuant to La.R.S. 23:1203.1. The Medical Director denied approval for the surgery. Therefore, Ms. Lowery filed a Form 1008, Disputed Claim for Compensation with the Office of Workers’ Compensation appealing the Medical Director’s decision. Ms. Lowery also prayed for an award of penalties and attorney fees, with interest and costs. ,

The employer and its compensation insurer, appellants herein, responded by filing an exception of no cause of action directed only against the claim for penalties and attorney fees. They also answered the petition and filed affirmative defenses. Additionally, being of the opinion that the surgery should not be authorized, the appellants filed a motion seeking to have the OWC judge enter an order compelling Ms. Lowery to attend a functional capacity evaluation (FCE). Appellants also sought an expedited hearing on Ms. Lowery’s appeal of the |2Medical Director’s decision, and the OWC judge set the matter for hearing on June 30, 2014.

Thus, at the start of the hearing held on June 30, the attorney for the appellants began arguing the merits of their motion to compel the FCE. In response to appellants’ counsel’s statements to the court, the attorney for Ms. Lowery opined that the question of whether Ms. Lowery should be compelled to undergo an FCE should, logically, be the last issue examined by the court. Instead, Ms. Lowery’s counsel contended that the first issue should be the merits of the appeal from the Medical Director’s decision to deny Ms. Lowery’s back surgery. Specifically, Ms. Lowery’s counsel stated:

I think that [the FCE] would be the last one we would get to. We filed for this Court to review — we filed for an appeal of the medical director’s decision denying the surgery. It would appear to me that would be the first thing that would need to be address [sic], because if she’s entitled to surgery, she certainly doesn’t need to be having to undergo a functional capacity test until she’s had her surgery and gotten well, which is essentially the same situation we were in before. But in this case they have filed — let’s see if I can find it here. They filed an exception of no cause of action on the claim for penalties and attorney fees that we brought in this connection, which — And as I understand it, they set our appeal for hearing today on an expedited basis. So we’re here — we’re here to try our case on whether she’s entitled to the surgery. And then — And so, I don’t know what order the Court wants to take all that in. But as I understand it, all of that is at issue today.

The OWC judge agreed; therefore, Ms. Lowery’s counsel began presenting the case against the Medical Director’s decision.

Not only did Ms. Lowery’s counsel express the opinion that all issues were to be presented to the OWC court on June 30, appellants’ counsel commented at the conclusion of her argument that, even if the OWC court determined that the medical director’s decision should not be upheld, the award of penalties should not be assessed against the appellants. And finally, near the completion of Ms. | ¡¡Lowery's counsel’s arguments to the OWC judge, he again argued that penalties and attorney fees should be awarded to Ms. Lowery due to the appellants’ failure to authorize and pay for her recommended back surgery.

At the conclusion of the hearing, after taking a break to review the case, the OWC judge orally rendered the ruling finding that the Medical Director’s decision should be reversed and ordered that Ms. Lowery is entitled to the back surgery. The OWC judge then stated that the motion to compel the FCE was denied at this time, reserving the appellants’ right to ask for an FCE at the appropriate time following the surgery. However, the OWC judge did not enter any ruling with regard to the issue of penalties or attorney fees nor did the OWC judge directly address the appellants’ exception of no cause of action directed against these claims. Counsel for Ms. Lowery stated on the record that he would prepare the judgment for the OWC court to sign.

The OWC judge ultimately signed two separate judgments on the same day. One judgment overturns the decision of the Medical Director denying Ms. Lowery’s surgery, and then proceeds to authorize the surgery with the appellants paying for it. The second judgment denied the appellants’ motion to compel the FCE, reserving to them the right to urge this motion again when appropriate. Neither judgment addressed the exception of no cause of action or the issue of Ms. Lowery’s entitlement to penalties or attorney fees.

The appellants filed a motion seeking a suspensive appeal from the judgment ordering them to pay for Ms. Lowery’s back surgery. Upon receipt of record, this court issued the subject rule for the appellants to show cause why the appeal should not be dismissed as having been taken from a partial judgment.

|4In response to this court’s rule to show cause, the appellants argue that a judgment reversing the Medical Director’s decision denying the employee’s request for approval of a medical procedure is appeal-able if the appealed judgment is a complete adjudication of the claim. This court does not disagree with the appellants on this point. However, this court recognizes that when elements of a claim set forth by the petitioner include recovery of penalties and attorney fees, there has not been a complete adjudication of the claim until the court has ruled on all of the elements of the claim including penalties and attorney fees.

Thus, in Ken Lawler Builders, Inc. v. Delaney, 36,865 (La.App. 2 Cir. 3/5/03), 840 So.2d 672, an appeal was taken from an award of attorney fees. The trial court had previously rendered a final judgment on a motion for summary judgment filed by the plaintiff finding that the defendants were liable for breach of a lease agreement. The lease agreement had a provision entitling the plaintiff to an award of attorney fees if the defendants were found to have breached the lease. However, when the plaintiff filed the motion for summary judgment, the plaintiff failed to raise the right to an attorney fee award in the motion. While the defendants filed an appeal from the judgment finding they had breached the lease, the plaintiff also failed to file an answer in the appellate court seeking an award of attorney fees.

Instead, the plaintiff filed a motion in the trial court seeking the award of attorney fees in accordance with the lease provision while the appeal was pending in the appellate court from the judgment finding that the defendants had breached the lease. The trial court awarded attorney fees for the plaintiff, and the defendants appealed.

lfiOn appeal from the attorney fee award, the appellate court found that the trial court had been without jurisdiction to decide the attorney fee issue since an appeal had already been perfected from the judgment finding the breach of the lease agreement. The defendants also argued that res judicata applied to the earlier judgment and that this principle also barred litigation of the attorney fees issue. In agreeing with the defendants’ position on this latter issue, the appellate court remarked:

All issues related to the breach of the lease were extinguished and merged into the final judgment rendered by the district court. La.R.S. 13:4231(1). As previously stated, neither the record nor the previous judgment rendered indicate any reservation of the attorney fees issue for future adjudication. In this instance, we deem it appropriate to apply the principle that a demand not granted or reserved in the judgment must be considered as rejected. See Soniat v. Whitmer, 141 La. 235, 74 So. 916 (La.1917). The legal effect of the silence of a judgment on any part of a demand that might have been allowed under the pleadings is a rejection of such part of the demand, which tacit rejection has the force and effect of res judicata against subsequent suit for such part of the demand. Edenborn v. Blacksher, 148 La. 296, 86 So. 817 (1921).

840 So.2d at 675.

Turning to the instant case, it is clear from the transcript of the hearing that the parties and the OWC court knew that the issue of whether Ms. Lowery was entitled to penalties and attorney fees was being litigated during that hearing. Like the court in Ken Lawler, 840 So.2d 672, concluded, we can only conclude that the OWC court’s silence in the two written judgments resulting from that hearing constituted a denial of the claim for penalties and attorney fees. Therefore, we find that, since no issues remain to be litigated at this time before the OWC court, this court’s rule to show cause why the appeal should not be dismissed as having been taken from a partial judgment must be recalled, and the appeal is hereby maintained.

IrRULE TO SHOW CAUSE RECALLED.


author: SAUNDERS, Judge.

text:
    Richard G. DAVID, et al. v. Dione W. DAVID, et al.
    No. 14-657.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 23, 2014.

      Ed W. Bankston, Attorney at Law, Lafayette, LA, for Plaintiff/Appellant, Richard G. David.
    L.E. “Tony” Morrow, Jr., The Law Offices of Tony Morrow, Lafayette, LA, for Defendant/Appellee, Dione W. David.
    Court composed of JOHN D. SAUNDERS, JIMMIE C. PETERS, and JAMES T. GENOVESE, Judges.
   SAUNDERS, Judge.

I;Richard G. David (hereafter “Appellant”) appeals the trial court’s grant of an exception of res judicata in favor of Dione W. David (hereafter “Appellee”). For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Appellant and Appellee were married on March 3, 1973, and divorced on November 6, 2009. At the time of their divorce, there were five businesses and nine pieces of real estate at issue for partition. During the pendency of the partition, Appellee was given occupancy and use one of the community’s businesses, Dede’s Wholesale Florist, Inc. (hereafter “Dede’s”).

After a lengthy trial, a judgment of partition was rendered, allocating all of Dede’s assets to Appellant. Additionally, $200,000 in business debt associated with Dede’s was allocated to Appellant. After allocating the assets and debts of the community, the trial court assigned payments to equalize the net community assets. Appellant appealed from the partition judgment, asserting that Appellee mismanaged Dede’s, leaving him unfairly with the debt associated with Dede’s. The judgment was amended to reallocate some of the community assets and debts and to reduce the equalizing payment due from Appellant to Appellee. The judgment was affirmed as amended.

These parties came before this court again when a suit on open account was brought by Louisiana Wholesale Florists, Inc. against Dede’s, the corporation, and Appellant and Appellee, in their capacities as co-owners of Dede’s (hereafter “the LWF suit”). Appellee asserted a cross-claim against Appellant, alleging that he was awarded full ownership of Dede’s. Appellant asserted a cross-claim against Appellee, alleging that, during, the time Dede’s was managed and controlled by Appellee, she “failed to comply with the instructions and orders of the Court” and 1 ¡/‘wasted” it. Following trial, the court rendered judgment dismissing Appellant’s cross-claim with prejudice.

Thereafter, Appellant filed a Petition for Damages on July 9, 2013, again alleging Appellee “wasted the business.” On August 28, 2013, Appellee answered the suit, asserting an exception of res judicata. Judgment on the exception was rendered in favor of Appellee on October 30, 2013, and signed on November 22, 2013. The judgment ordered Appellant to pay $1,306.75 in attorney fees and $115.45 in expenses. It is from this judgment that the instant appeal arises. Appellee answered the appeal, requesting an increase in the award of attorney’s fees and damages for frivolous appeal.

ASSIGNMENTS OF ERROR:

In his appeal, Appellant raises the following assignments of error:

1. the trial court erred in granting Ap-pellee’s exception of res judicata; and
2. the trial court erred in granting Ap-pellee’s request for attorney fees.

ASSIGNMENT OF ERROR NUMBER ONE:

Appellant asserts that the trial court erred in granting Appellee’s exception of res judicata. In support of this assignment, Appellant asserts the instant matter began with a suit by Dede’s, the corporation, against Appellee; thus, the parties in the instant matter are not the same parties in the same capacities as the prior litigation. Appellant further asserts that several issues alleged in his petition have not been litigated in the prior suits. For the following reasons, we find this assignment of error lacks merit.

When an exception of res judicata is raised prior to submission of the case for decision, an appellate court must review a ruling sustaining the exception for manifest error. Jones ex rel. Jones v. GEO Grp., Inc., 08-1276 (La.App. 3 Cir. 4/1/09), 6 So.3d 1021 (citing State ex rel. Sabine River Auth. v. Meyer & Assocs. Inc., 07-214, 07-215 (La.App. 3 Cir. 10/3/07), 967 So.2d 585).

The doctrine of res judicata is set forth in La.R.S. 13:4231, which provides, in pertinent part:

(2) If judgment is in favor of the defendant, all causes of action existing at the time of the final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and the judgment bars a subsequent action on those causes of action.
Quoting Burguieres v. Pollingue, 02-1385, p. 7 (La.2/25/03), 843 So.2d 1049, 1053, the supreme court reiterated the five elements that must be established in order for a judgment to have a res judicata effect on a second action:
(1) the judgment is valid; (2) the judgment is final; (3) the parties are the same; (4) the cause or causes of action asserted in the second suit existed at the time of final judgment in the first litigation; and (5) the cause or causes of action asserted in the second suit arose out of the transaction or occurrence that was the subject matter of the first litigation.

In re Succession of Bernat, 13-277, pp. 3-4 (La.App. 3 Cir. 10/9/13), 123 So.3d 1277, 1281, writ denied, 13-2640 (La.2/7/14), 131 So.3d 865.

Is the instant matter between the same parties as the prior litigation?

A shareholder does not have an individual right of action against the directors and officers of a corporation for alleged wrongs which may have caused damage to the corporation. Boyer v. Stric-Lan Companies Corp., 04-872 (La.App. 8 Cir. 11/10/04), 888 So.2d 1037 (citing Glod v. Baker, 02-988 (La.App. 3 Cir. 8/6/03), 851 So.2d 1255, writ denied, 03-2482 (La.11/26/03), 860 So.2d 1135). Instead, any right of action for wrongs to the corporation is an asset of the corporation, which may only be asserted in a shareholder’s derivative suit. Id.

Pursuant to La.Code Civ.P. art. 615, a petition in a shareholder’s derivative suit must:

|4(1) Allege that the plaintiff was a shareholder, partner, or member at the time of the occurrence or transaction of which he complains, or that his share, partnership, or membership thereafter devolved on him by operation of law.
(2) Allege with particularity the efforts of the plaintiff to secure from the managing directors, governors, or trustees and, if necessary, from the shareholders, partners, or members, the enforcement of the right and the reasons for his failure to secure such enforcement, or the reason for not making such an effort to secure the enforcement of the right.
(3) Join as defendants the corporation or unincorporated association and the obligor against whom the obligation is sought to be enforced.
(4) Include a prayer for judgment in favor of the corporation or unincorporated association and against the obligor on the obligation sought to be enforced.
(5) Be verified by the affidavit of the plaintiff or his counsel.

Appellant’s petition fails to comply with the statutory formalities required to constitute a shareholder’s derivative suit. He does not allege he was a shareholder in Dede’s at the pertinent times. Further, he did not join the corporation as a defendant. Rather, the only defendant in his suit is Appellee. The caption of the petition states that suit is brought against Appellee, individually and as shareholder of Dede’s. Finally, Appellant did not pray for judgment in favor of the corporation; instead, he prayed for judgment in his own favor. In light of this plain failure to comply with the requirements of a shareholder’s derivative suit, we conclude that the trial court did not commit manifest error in concluding that Appellant’s petition is yet another suit by Appellant against Appellee. Thus, the record supports the conclusion that the instant matter involves the same parties as the partition suit and the cross-claims by Appellant against Appellee.

15Does the cause of action arise out of the transaction or occurrence that is the subject matter of the prior litigation?

Appellant asserts that several issues alleged in his petition have not been litigated in the prior suits. We disagree.

Louisiana Revised Statutes 13:4231 provides that “all causes of action existing at the time of final judgment [which] aris[e] out of the transaction or occurrence that is the subject matter of the litigation are extinguished” when judgment has been rendered in favor of the defendant.

In the partition suit, Appellant alleged Appellee mismanaged Dede’s, which unfairly left him with the debt associated with Dede’s. A panel of this court addressed this assertion, finding it “unsupported.” David v. David, 12-1051, p. 14 (La.App. 3 Cir. 4/10/13), 117 So.3d 148, 157, writ denied, 13-1541 (La.10/4/13), 122 So.3d 1023. The panel further noted that Appellant’s “own behavior affected the business negatively.” Id. at 158.

In the LWF suit, Appellant brought a cross-claim against Appellee asserting that, during the time Dede’s was being managed and controlled by Appellee, she “failed to comply with the instructions and orders of the Court” and “wasted” it. He prayed for judgment in his favor for “her improprieties with respect to Dede’s Wholesale Flowers, Inc.” Following trial, the court rendered judgment dismissing with prejudice “the Cross-claim filed by [Appellant] against [Appellee], alleging mis-management [sic], wasting, and/or improprieties of any sort of Dede’s Wholesale Florists, Inc.”

In both the partition suit and the LWF suit, Appellant alleged some form of mismanagement of Dede’s by Appellee. In each suit, judgment was rendered on this issue in favor of Appellee. Each and every allegation made by Appellant in the instant suit is an allegation of some sort of mismanagement of Dede’s by |rAppellee. The allegations of mismanagement have already been litigated in the partition suit and the LWF suit. Thus, we conclude the trial court did not err in granting Appel-lee’s exception of res judicata.

ASSIGNMENT OF ERROR NUMBER TWO:

In his second assignment of error, Appellant asserts that the trial court erred in awarding attorney fees and costs to Appellee. In support of his argument, he asserts the “American Rule, [requires] each party pays its own attorney[ ] fees.” For the reasons articulated below, we find this assignment of error lacks merit.

“Louisiana law does not allow for an award of attorney fees except where specifically provided for by statute or contract.” Holt v. Ace Am. Ins. Co., 14-380, p. 6 (La.App. 3 Cir. 10/1/14), 149 So.3d 886, 891 (citing State, Dep’t of Transp. & Dev. v. Williamson, 597 So.2d 439 (La.1992)). However, La.Code Civ.P. art. 863(D) authorizes a trial court to award “reasonable expenses,” including attorney’s fees, when a pleading is interposed for “any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation.”

As a panel of this court explained in Acosta v. B & B Oilfield Services, Inc., 12-122, p. 5 (La.App. 3 Cir. 6/6/12), 91 So.3d 1263, 1267:

When considering the imposition of sanctions on appeal, an appellate court must apply two standards of review which are explained as follows:
A trial court’s determination regarding the imposition of sanctions is subject to the manifest error or clearly wrong standard of review. Once the trial court finds a violation of La.[Code Civ.P.] art. 863 and imposes sanctions, the determination of the type and/or the amount of the sanction is reviewed on appeal utilizing the abuse of discretion standard. Stroscher v. Stroscher, 2001-2769 (La.App. 1st Cir.2/14/03), 845 So.2d 518, 526; Connelly v. Lee, 96-1213 (La.App. 1st Cir.5/9/97), 699 So.2d 411, 414, writ denied, 97-2825 (La.1/30/98), 709 So.2d 710.
Slaughter v. Bd. of Sup’rs of S. Univ. and Agric. and Mech. Coll., 10-1114, p. 6 (La.App. 1 Cir. 8/2/11), 76 So.3d 465, 469-70, writ denied, 11-2112 (La.1/13/12), 77 So.3d 970; Mor-Tem Risk Mgmt. Servs., Inc. v. Shore, 43,169 (La.App. 2 Cir. 3/19/08), 978 So.2d 588.

Louisiana Code of Civil Procedure Article 863 provides the requisite specific statutory authorization for an award of attorney fees and costs. Accordingly, we find no error in the trial court’s award of attorney fees and costs to Appellee.

ANSWER TO APPEAL

Finally, in her answer to the appeal, Appellee asserts the trial court erred in failing to award attorney fees in the amount she actually incurred in defending the litigation and requests damages for frivolous appeal. However, pursuant to La.Code Civ.P. art. 2133, when a litigant wishes to have the judgment modified, revised, or reversed, or demands damages against an appellant, the litigant is required to answer the appeal no later than fifteen days after the return day or lodging of the record, whichever is later. Bolzoni v. Theriot, 95-1233 (La.App. 3 Cir. 3/6/96), 670 So.2d 783, writ denied, 96-718 (La.4/26/96), 672 So.2d 908 (citing Mai v. Blair, 634 So.2d 1202 (La.App. 3 Cir. 1993)).

Appellee failed to file an answer within the fifteen-day time limit set forth by La.Code Civ.P. art. 2133; therefore, Appellee’s requests for an increased award of attorney fees and for damages for frivolous appeal are untimely and are denied.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is affirmed in all respects. Costs of this appeal are assessed to Appellant.

AFFIRMED.


author: WALLER, Chief Justice,

text:
    In the Matter of the REINSTATEMENT OF Gail P. THOMPSON. Gail P. Thompson v. The Mississippi Bar.
    No. 2013-BR-00201-SCT.
    Supreme Court of Mississippi.
    Dec. 5, 2013.
    Randolph Walker, attorney for appellant.
    Adam B. Kilgore, Jackson, attorney for appellee.
   WALLER, Chief Justice,

for the Court:

¶ 1. Gail Thompson petitions the Court for reinstatement to the practice of law following her suspension in two separate matters. We find Thompson has satisfied the jurisdictional requirements necessary to warrant her reinstatement. Therefore, we approve Thompson’s petition for reinstatement.

FACTS & PROCEDURAL HISTORY

¶ 2. Gail Thompson was admitted to the Mississippi Bar (Bar) in 1990 and primarily practiced criminal law. Thompson was publicly reprimanded in 2002 for neglecting a client’s case. She received another public reprimand for failing to reimburse an unused portion of legal fees she had previously been ordered by the Bar to refund. She subsequently was suspended from the practice of law by this Court in two separate matters: in 2003 for eighteen months in The Mississippi Bar v. Gail P. Thompson, Cause No. 2002-B-645 (the “Jones matter”), and in 2008 for thirty (30) months in The Mississippi Bar v. Gail P. Thompson, Cause No. 2005-B-1936 (the “McGaughy matter”), which was retroactive to March 14, 2006, and resulted from a remand from this Court. See The Mississippi Bar v. Gail P. Thompson, 5 So.3d 330 (Miss.2008).

¶ 3. In the Jones matter, Thompson agreed to represent Jones in a federal suit against a correctional officer employed by the Mississippi Department of Corrections (MDOC). Mississippi Bar v. Thompson, Cause No. 2002-B-645, at 2. Although no document could be produced, Jones and Thompson both agreed there was a contingency fee arrangement and that she would be entitled to fifty percent of any judgment if an appeal was successful. Id. at 1. The federal district court ruled in favor of Jones and awarded him $6,000, which judgment MDOC appealed. In August 2000, the case was affirmed by the Fifth Circuit Court of Appeals, and MDOC tendered the $6,000 to Thompson. Id. at 1-2.

¶ 4. Thompson immediately withdrew $3,000 from money deposited from the judgment in her trust account for her fee, but failed to distribute the remaining $3,000 due to Jones and never prepared an accounting. Id. at 2. Evidence showed that Thompson’s trust account later fell below $3,000, with the lowest amount being $395 in April 2001. Id. Jones repeatedly and unsuccessfully attempted to contact Thompson after learning of the verdict. Id. Finally, Jones filed a complaint with the Bar against Thompson. Id. After Thompson was' notified of the complaint, she mailed Jones a check for $3,000 but, again, no accounting was performed. Id. Thompson was found by a tribunal to have violated Rule 1.4 of the Mississippi Rules of Professional Conduct (M.R.P.C) for not keeping Jones reasonably informed of the status of the $6,000 judgment and Rule 1.15(b) for mishandling client funds. Id.

¶ 5. In the McGaughy matter, Thompson hired Robert Tubwell, a former inmate at Parchman, to work as a paralegal. Mississippi Bar v. Gail P. Thompson, 5 So.3d 330, 332 (Miss.2008). Mario McGaughy was an inmate serving a life sentence, with whom Tubwell was acquainted. Id. at 332-33. McGaughy wrote to Tubwell in an attempt to hire a lawyer to file a petition for post-conviction relief. Id. at 333. Tubwell wrote McGaughy on Thompson’s law-firm letterhead stating Thompson would work on McGaughy’s case, quoted him a fee for the work, and instructed him to send all further correspondence to Tub-well’s apartment. Id.

¶ 6. Tubwell again wrote McGaughy on Thompson’s law-firm letterhead and advised him that he had a strong case. Id. Subsequently, Tubwell mailed McGaughy his court records and a petition for post-conviction relief, which he instructed McGaughy to sign and have notarized. However, he did not tell McGaughy that he was filing the petition pro se. Id. McGaughy’s petition was denied and thereafter, Tubwell suggested he file a writ of habeas corpus in federal court; however, no habeas petition was ever filed. Id. Believing Thompson’s law firm to be representing him, MeGaughy filed an informal complaint with the Mississippi Bar against Thompson for failure to pursue his post-conviction-relief application and petition for habeas corpus. Id. at 333-34.

¶ 7. Thompson claimed to have no knowledge of Tubwell’s letters to MeGau-ghy and asserted Tubwell had taken advantage of her trust. Id. at 334. She informed Tubwell that all cases he was working on needed to come through her office but admitted she had no safeguards in place to prevent Tubwell from engaging in the unauthorized practice of law. Id. Additionally, Thompson failed to protect client files after they were confiscated for her failure to pay rent on a storage facility in which she had left them. Id. This Court affirmed a complaint tribunal’s findings that Thompson had violated M.R.P.C. 1.15 for failing to keep her clients’ files safe; M.R.P.C. 5.3 for failing to make sufficient efforts to supervise Tubwell’s work; and M.R.P.C. 8.4(a),(d) for professional misconduct and engaging in conduct prejudicial to the administration of justice. Id. at 340. In addition, this Court found Thompson had violated M.R.P.C. 5.5(b) because there was sufficient evidence that she had assisted Tubwell in the unauthorized practice of law. Id. at 338.

STANDARD OF REVIEW

¶ 8. This Court reserves “ ‘exclusive and inherent jurisdiction’ ” over attorney-reinstatement cases. In re Morrison, 819 So.2d 1181, 1183 (Miss.2001) (quoting In re Smith, 758 So.2d 396, 397 (Miss.1999)). These matters are reviewed de novo, on a case-by-case basis. In re Morrison, 819 So.2d at 1183 (quoting In re Smith, 758 So.2d at 397).

¶ 9. To warrant reinstatement, a petitioner has the burden to prove “that he has rehabilitated himself and has established the requisite moral character to entitle him to the privilege of practicing law.” Stewart v. The Mississippi Bar, 5 So.3d 344, 346-47 (Miss.2008) (citing In re Holleman, 826 So.2d 1243, 1246 (Miss.2002)). He or she must exhibit “ ‘[a] firm resolve to live a correct life evidenced by outward manifestation sufficient to convince a reasonable mind clearly that the person has reformed....’” In re Petition of Massey, 670 So.2d 843, 845 (Miss.1996) (quoting Phillips v. Miss. Bar, 427 So.2d 1380, 1382 (Miss.1983)).

DISCUSSION

I. JURISDICTIONAL REQUIREMENTS

¶ 10. The petitioner must meet the jurisdictional requirements for reinstatement under Rule 12 of the Mississippi Rules of Discipline for the State Bar. Miss. R. Discipline 12; In re Benson, 890 So.2d 888, 890 (Miss.2004) (citing In re Holleman, 826 So.2d at 1247).

¶ 11. Rule 12 requires that a petitioner (1) state the cause or causes for suspension or disbarment; (2) provide the names and current address of all persons, parties, firms, or legal entities who suffered pecuniary loss as a result of the improper conduct; (3) make full amends and restitution; (4) demonstrate that he or she has the necessary moral character to practice law; and (5) show that he or she possesses the requisite legal education to be reinstated. Miss. R. Discipline 12.7; see also In re Benson, 890 So.2d at 890.

¶ 12. The Bar’s position, though not a jurisdictional requirement, is a factor for consideration as well. In re Benson, 890 So.2d at 890 (citing In re Holleman, 826 So.2d at 1248). The Bar supports Thompson’s reinstatement based on her admission of responsibility for her actions, her dedication to her community in her post-suspension employment and the charitable work she has performed in her church.

A. Cause for Disbarment

¶ 13. Thompson’s petition acknowledges that her actions in the Jones and McGau-ghy matters were the basis for her suspension and accepts full responsibility for them. Further, she provided copies of both decisions that lead to her suspension and discussed her actions thoroughly in her deposition.

B. Name of Anyone Suffering Pecuniary Loss

¶ 14. Thompson’s petition named Jones as the only individual who had suffered pecuniary loss as a result of her actions. Thompson indicates that she is unable to find Jones after a diligent search and that he appears to have been released by MDOC, as she was unable to discover him on MDOC’s inmate locator website. Thompson also names Mario McGaughy and lists his address, however, McGaughy suffered no pecuniary loss due to Thompson’s actions.

C. Full Amends and Restitution

¶ 15. The complaint tribunal found in the Jones matter that Thompson had paid full restitution to Jones and that she had paid litigation fees to the Bar. Thompson’s deposition and petition both state no funds are owed to McGaughy and that no other clients suffered pecuniary loss as a result of her misconduct.

D. Rehabilitation and Requisite Moral Character

¶ 16. Thompson provides the following evidence as proof she has demonstrated the necessary moral character to be reinstated to the practice of law.

1.Civic, Church, and Charitable Involvement

¶ 17. Thompson became an ordained Baptist minister in 2005 and is a certified teacher with the National Baptist Congress. She preaches at her church once a month and makes the matters regarding her suspension part of her teachings. Thompson also testified that she assists the elderly at nursing homes in Water Valley by running errands and having meals with residents. She does all of these activities strictly on a volunteer basis.

2.Letters of Recommendation

¶ 18. Thompson include fourteen letters of support for reinstatement, six of which are from members of the Mississippi Bar, including Judge Johnnie E. Walls Jr. of the Eleventh Circuit Court District. Thompson testified that the letter writers all were aware of her suspension.

3.Employment Since Suspension

¶ 19. Thompson began working immediately after her suspension in 2003 and became a licenced insurance agent for Liberty National Insurance Company in Mississippi and Tennessee. She stayed with Liberty National until she was fired in April 2007 when health issues and gas prices adversely affected her ability to “make production.” Subsequently, she worked seasonal jobs delivering the Yellow Book in Water Valley and as a census canvasser, and became a full-time substitute teacher in the Water Valley School System, teaching seventh through twelfth grades. Also in 2007, Thompson took a contract job as a site operator of a Clean Air Status & Trends Network site, reading instruments and changing the filters that test air quality for the Environmental Protection Agency.

¶ 20. Thompson testified that, since her suspension, she has done legal research and has drafted briefs for the LeSure and Walls Law Firms whenever she was needed. In her time working for these firms she testified she did not have an office, gave no legal advice to clients, filed no pleadings, and spoke directly with clients only when answering the phone if the secretary was busy. In his letter of support for Thompson’s reinstatement, Judge Walls indicates he would like to employ Thompson as a law clerk or staff attorney.

4. Mental and Emotional Status

¶ 21. Thompson’s health and emotional status were not at issue in prior suspensions. She maintains she is in good health and believes she can handle the stress of practicing law.

E. Future Plans

¶ 22. Thompson testified that she wishes to serve as staff attorney for Judge Walls if the position is still available upon reinstatement. If that position is not available, Thompson testified that she does not intend to return to solo practice and would attempt to associate with a firm, possibly the LeSure Law Firm. If denied reinstatement, Thompson said she would continue conducting legal research, substitute teaching, and ministering.

F. Requisite Legal Education for Reinstatement

¶23. Thompson took the Multi-State Professional Responsibility Exam in 2006 and passed. She also testified she reads regularly the opinions handed down by this Court, receives updates on the law from legal websites, and maintains her legal research skills through her work for the LeSure Law firm and for Judge Walls. While not a requirement for reinstatement, the Bar has suggested that Thompson take a continuing legal education course on law-office management that specifically addresses the management of a lawyer trust account. Since the Bar has not made this a requirement for reinstatement and, further, since Thompson stated in her deposition it was not her intent to return to the practice of law as a solo practitioner, we will not require such a course. However, Thompson should pursue such a course of study in the event she does return to private practice for additional training with respect to trust accounts in particular.

II. ANALYSIS AND DECISION

¶ 24. This Court finds that Thompson has satisfied the jurisdictional requirements under Rule 12 of the Mississippi Rules of Discipline. We agree with the Bar that Thompson’s petition, along with her testimony, presents substantial evidence to support that she has achieved the moral and professional rehabilitation necessary to return to the practice of law. Previously, this Court has reinstated attorneys who have been disciplined multiple times. See Daly v. The Mississippi Bar, 83 So.3d 1262, 1270 (Miss.2011) (conditionally reinstating attorney after a sixty-day suspension and a three-year suspension), Shah v. The Mississippi Bar, 83 So.3d 1274, 1276 (Miss.2011) (conditionally reinstating attorney after three-year suspension in one matter and subsequent disbarment in another matter).

¶ 25. Thompson has fully admitted responsibility for the actions which led to her suspensions. Throughout her petition and deposition, Thompson went into detail about the Jones and McGaughy matters, expressed remorse for her misconduct and never denied responsibility for her actions. Although Jones’s payment was delinquent, he was paid, and the record does not disclose anyone else who had suffered pecuniary loss because of her misconduct.

¶ 26. With regard to requisite moral character, Thompson has been heavily involved in her church, becoming an ordained minister, leading worship services, and teaching Sunday school classes. Further, she has been involved in her community in Water Valley through her substitute-teaching position and her work at the nursing home. Thompson submitted fourteen letters in support of her reinstatement, which include letters attesting to her moral character and community involvement, letters from five members of the Bar and a letter from circuit-court judge. We further agree with the Bar that it is noteworthy that Thompson did not immediately file for reinstatement when she first became eligible, instead waiting more than four years to file her petition.

CONCLUSION

¶ 27. We find that Thompson has satisfied the jurisdictional requirements necessary to warrant reinstatement. She has shown by clear and convincing evidence that she is rehabilitated and that she possesses the requisite moral character to be reinstated to the practice of law. Therefore, we approve Thompson’s petition for reinstatement.

¶ 28. GAIL P. THOMPSON’S PETITION FOR REINSTATEMENT TO THE PRACTICE OF LAW IS GRANTED.

DICKINSON AND RANDOLPH, P.JJ., LAMAR, KITCHENS, CHANDLER, PIERCE, KING AND COLEMAN, JJ., CONCUR.


author: RANDOLPH, Presiding Justice,

text:
    Tammy English DAVENPORT a/k/a Tammy English v. Richard D. DAVENPORT.
    No. 2012-CA-01423-SCT.
    Supreme Court of Mississippi.
    Nov. 6, 2014.
    Rehearing Denied Feb. 19, 2015.

      George Philip Schrader, IV, B. Blake Teller, Lauren Roberts Cappaert, Vicksburg, attorneys for appellant.

      Penny B. Lawson, J. Mack Varner, David M. Sessums, Vicksburg, attorneys for appellee.
    Before RANDOLPH, P.J., LAMAR and KITCHENS, JJ.
   RANDOLPH, Presiding Justice,

for the Court.

¶ 1. Tammy and Dane Davenport were granted an irreconcilable-differences divorce in 2012. Tammy appeals from the final judgment of divorce. Finding no error, we affirm the final judgment of the Chancery Court of Warren County.

FACTS

¶ 2. Tammy English Davenport and Richard “Dane” Davenport were married in 1996. Three children were born of the marriage. Additionally, Tammy had custody of three children from her previous marriage. Dane worked as a highway patrolman and supported Tammy in her career as a physical therapist, which included opening and operating her own physical therapy practice. Over the years, Tammy endeavored to create and grow multiple corporations. The leading corporation was Good Samaritan Physical Therapy (“GSPT”), which was incorporated in 1997. Tammy held seventy-five percent ownership of GSPT, while Dane held twenty-five percent. The couple also owned their marital home, a lake house, and a condominium.

¶ 3. In September 2007, Tammy claimed that she had discovered Dane molesting one of her sons from her previous marriage. The Youth Court of Warren County found that Dane had molested two of his stepsons, resulting in the boys being adjudicated abused and the remaining four children being adjudicated neglected. Tammy and Dane separated in September 2007. Dane thereafter filed a complaint for divorce on the ground of habitual cruel and inhuman treatment. The proceedings were stayed during the time in which criminal charges were being pursued against Dane. Dane was indicted for sexual battery in both Oktibbeha County and Warren County. Dane was found not guilty in Oktibbeha County on one count of sexual battery. Dane was tried on nine counts of sexual battery in Warren County. The first trial in Warren County resulted in a mistrial. After the second trial, the jury returned a verdict of not guilty on five counts; however, a unanimous verdict could not be reached on the remaining four counts, resulting in a mistrial on the remaining counts. Thereafter, the Attorney General’s office entered an order dismissing with prejudice the four remaining counts.

¶ 4. Once the criminal proceedings concluded, Tammy moved the Warren County Chancery Court to lift its order staying the divorce proceedings and sought leave to amend her answer and to file a counter-complaint. Subsequently, the parties entered into an agreed order withdrawing fault grounds and sought an irreconcilable-differences divorce. Tammy and Dane petitioned the chancery court to determine how certain expenses should be paid regarding insurance, medical expenses, and extra expenses involving the children. Tammy and Dane also requested that the chancery court determine marital assets and equitable distribution, alimony, and child support. As to child custody, the parties agreed to incorporate and adhere to the custody and visitation order previously entered by the youth court.

¶ 5. Dane moved the court to appoint experts to value their assets. Tammy and Dane agreed to Annette Herrin, CPA. She testified as an expert witness, and they split the costs associated with Her-rin’s services. Tammy designated Herrin and Todd Boolos, CPA, as her expert witnesses. Dane also designated C. Rodney Cummins, CPA, to support his position regarding the finances of GSPT. Each testified at trial.

¶ 6. At trial, it was admitted that, during Tammy and Dane’s marriage, the parties received distributions from GSPT each year to cover any expenses which were not covered by their salaries. After the parties separated, Dane no longer received distributions from GSPT. It is undisputed that, after the separation, the only marital property that Dane continued to benefit from was the use of his truck. Based on the testimony of each accountant, it was revealed that Tammy’s regularly received distributions were later reclassified as “loans to shareholder,” after the parties separated in 2007.

¶7. On July 23, 2012, the chancery court entered a final decree of divorce. The chancellor found that GSPT was incorporated after their marriage and both parties worked to start and develop the business. Further, the success of GSPT funded the formation of other businesses and funded the purchase of the marital property. From the testimony provided by each accountant, the chancellor considered the value of the marital assets and accepted the values established by Herrin, with two exceptions. The following reflects the values of each asset as determined by Herrin:

1. Great Dane Properties — $167,000
2. Nehemiah Properties, LLC — $6,300
3. Aquilla Group, LLC — $600
4. Aquilla Development, LLC — $000
5. Rehab Resources Unlimited, Inc.— $188,000
6. Medical Real Estate Management, LLC — $29,000
7. Medical Supplies Unlimited, Inc.— $2,500
8. Good Samaritan Performance Sports, LLC — $14,000
9. Competitive Edge University, LLC — $1,300
10. Good Samaritan Physical Therapy, Inc. — $2,683,000
11. Change of Habit, Inc. — $000
Total Net Business Assets Value for Equity Interests of parties — $3,092,000

The chancellor also accepted the following real and personal property values:

1. Marital dwelling (equity) — $320,000
2. Condominium — $51,923.46
3. Pontoon Boat — $18,000
4. Ski Boat — $25,000
5. Household furnishings — $50,000
6. Lot adjacent to marital dwelling— $62,000
Total — $526,923.46

¶8. The lake house was owned by Great Dane Properties. However, the chancellor determined that the lake house was an asset for personal use and not for business use. The chancellor also found that the value of Great Dane Properties did not include the debt owed on the lake house. Therefore, the chancellor deducted the debt of $18,856.59, assessing the actual value of Great Dane Properties as $146,143.41. The chancellor found that, although Herrin had given Aquilla Development, LLC, a value of zero because the company owed a debt to Tammy, Aquilla Development, LLC, was the owner of real property valued at $249,725 with a mortgage of $185,137.00. The chancellor found that, if the land was sold, Tammy would receive thirty-three percent of the difference in the land’s value and the amount of the mortgage, resulting in an asset value of $21,452.23 as to Aquilla Development.

¶ 9. Further, the chancellor determined that Dane had received a K-l from GSPT in 2010 reporting income of $107,000, due to his twenty-five percent ownership in the corporation, even though Dane had not received any distributions since the time of separation in 2007. As a result, Dane incurred a tax liability of $41,054.

¶ 10. Lastly, the chancellor found that Dane was entitled to forty percent of the business values, excluding the lake house; fifty percent of the real-property equity not used in businesses, including the lake house; and fifty percent of the value of the personal property. Further, the chancellor determined that lump-sum alimony best suited the needs of the parties to avoid dividing the companies, pursuant to MacDonald v. MacDonald, 698 So.2d 1079 (Miss.1997).

¶ 11. In the final divorce decree, the chancellor equitably divided Tammy’s and Dane’s assets under the factors set forth in Ferguson v. Ferguson, 639 So.2d 921 (Miss.1994). The chancellor ruled that Dane was entitled to business assets in the amount of $1,179,380.89 and nonbusiness assets in the amount of $336,533.44. Thus, Dane was entitled to $1,515,914.33 in total assets, awarded in the form of lump-sum alimony, payable in monthly installments of $8,421.75 for 180 months. Tammy also was ordered to reimburse Dane for the income taxes resulting from GSPT issuing him a K-l, totaling $41,054. Lastly, the chancellor ordered Dane to pay child support in the amount of $683.66 per month, twenty-two percent of his gross monthly income of $3,107.51.

¶ 12. Aggrieved, Tammy appealed the final divorce decree to this Court, raising the following issues:

I. Whether the trial court manifestly erred in disregarding marital liabilities owed by Tammy, resulting in an over-valued marital estate;
II. Whether the trial court manifestly erred in failing to consider that the expenditures made during the time of separation were legitimate and not wasteful dissipation of assets;
III. Whether the trial court manifestly erred by excluding expert opinion testimony from Certified Public Accountant, Todd Boolos;
IV. Whether the trial court manifestly erred by failing to give proper weight to the findings of sexual child abuse by the Warren County Youth Court;
V. Whether the trial court manifestly erred in excluding from evidence a document authored by the Warren County Youth Court Judge describing facts and circumstances underlying the youth court’s findings of sexual child abuse; and
VI. Whether the trial court manifestly erred in failing to consider and make on-the-record findings as to whether Tammy could reasonably pay the alimony awarded to Dane.

STANDARD OF REVIEW

¶ 13. Chancellors are awarded complete discretion, “as equity demands,” when equitably dividing marital assets. Ferguson v. Ferguson, 639 So.2d 921, 929 (Miss.1994). A chancellor’s findings will not be overturned unless those findings were “manifestly wrong, clearly erroneous, or an erroneous legal standard was applied.” MacDonald v. MacDonald, 698 So.2d 1079, 1083 (Miss.1997) (citing Ferguson, 639 So.2d at 928, 930).

ANALYSIS

I. Whether the trial court manifestly erred in disregarding marital liabilities owed by Tammy, resulting in an over-valued marital estate.

¶ 14. Tammy testified that she had monthly personal expenses totaling $37,000 per month, but her monthly net income was only $8,000. The $29,000 difference was covered by disbursements from GSPT. Tammy provided that this practice had been utilized to benefit her and Dane prior to their separation, and that Tammy continued to use the profits from GSPT for personal use to the present date. Boolos, who had been the accountant for Dane, Tammy, and the businesses for many years, testified that, after the parties separated in 2007, he advised Tammy that any further disbursements from the company should be issued as loans to shareholder rather than distributions, to avoid having to issue pro rata distributions to Dane.

¶ 15. The chancellor found that Tammy had withdrawn $2,960,455, from GSPT since the time of separation in late 2007. Tammy lists this amount on her Uniform Chancery Court Rule 8.05 financial statement as a liability because it was issued from GSPT as a loan to shareholder. At trial, Dane asserted that Tammy had disguised actual distributions through reclassifying the usual disbursements as loans to shareholder. Boolos testified that he prepared promissory notes for all of the shareholder loans. Herrin’s report provided that $2,236,895, was expended on new business ventures, most of which were unsuccessful, leaving $723,560 being used for personal expenses. The chancellor’s ruling considered that fact, finding that Tammy had “made some poor investments.”

¶ 16. Herrin’s report concluded that GSPT had a net asset value of $2,683,000, which included the $2,960,455, due from the shareholder, Tammy. Tammy cites Cuccia v. Cuccia, to support her argument that the chancellor failed to take into consideration Tammy’s debts when valuing and dividing the marital estate. Cuccia v. Cuccia, 90 So.3d 1228, 1233-34 (Miss.2012) (Marital debt should be considered when determining equitable division of property.). Tammy argues that the chancellor failed to consider the $2,960,455 loan due to GSPT, a $105,000 loan due to Tammy’s father, and $80,000 due to the Internal Revenue Service (IRS).

¶ 17. In the final decree, the chancellor relied on this Court’s decision in MacDonald v. MacDonald, 698 So.2d 1079 (Miss.1997). In MacDonald, the chancellor awarded Diane MacDonald lump-sum alimony for her equitable interest in Kevin McDonald’s business. MacDonald, 698 So.2d at 1086. The chancellor awarded Diane $12,000 per year over a period of ten years, based on the business value at the time of divorce. Id. On appeal, Kevin argued that the chancellor should have used the value of the business at the time of separation, which would have been considerably less. Id. This Court determined that the chancellor may use his or her discretion when choosing whether to use the value at the time of separation or divorce. Id. The chancellor awarded Diane an amount larger than what the business was valued at, and this Court noted that the amount awarded reflected her interest in the business and not the value of the business. Id. The parties agreed to a determination based on the current cash value of the business. Id. Further, their accountant testified that “... the net worth of the store did not represent its fair market value, but rather simply constituted its assets minus its liabilities.” Id.

¶ 18. The factual scenario in MacDonald is very similar to the facts before us. Here, the chancellor chose to consider the value of the businesses at the time of divorce, and therefrom awarded Dane his interest in those businesses. Based on Herrin’s report, the chancellor was able to compare the net asset value of GSPT when the parties separated in 2007, which was $2,520,000, to the net asset value in 2011, which was $2,683,000. Testimony provided that Tammy has yet to make any payments to GSPT regarding her “loan.” Testimony also indicated that Tammy may never repay the loan. Whether Tammy does or does not repay the loan is of little importance. Of importance is the fact that Tammy and Dane agreed to hiring Herrin to produce a report regarding their financial status and valuation of their assets and to provide expert testimony, at trial, regarding her findings. It is undisputed that Herrin was a well-qualified CPA and used standard accounting methods to formulate her opinions. Accordingly, the chancellor did not abuse her discretion in accepting Herrin’s valuation of the businesses and awarding Dane his equitable interests therefrom.

¶ 19. Next, Tammy argues that the chancellor failed to consider that Tammy owes $80,000 in back taxes to the IRS and $105,000 to her father. Tammy’s only support for this argument is that the chancellor did not explicitly mention those debts in the order. However, the final decree ordered that Tammy would receive all business and nonbusiness assets and directed Dane to execute all deeds and paperwork to accomplish the transfers to Tammy. The chancellor further ordered, “Tammy Davenport shall be responsible for all debt associated with said businesses and non-business assets and shall hold Dane Davenport harmless for said debts.” The two debts which Tammy claims were ignored were listed on her Rule 8.05 financial statement. The chancellor clearly considered those debts by ordering Tammy to pay all business and nonbusiness debts, as the order does not specifically list any of the debts. Therefore, this issue is without merit.

II. Whether the trial court manifestly erred in failing to consider that the expenditures made during the time of separation were legitimate and not wasteful dissipation of assets.

¶ 20. Tammy argues that the chancellor found, under Ferguson, that Tammy excluded Dane from all benefits of the business and nonbusiness assets, except for his truck, after the time of the divorce. Further, Tammy asserts that her removal of funds from the business was legitimate and not wasteful. Under the chancellor’s findings of facts, she did find that, “[w]ith the exception of retaining his truck, Dane was excluded by Tammy from all connection with the businesses, the houses and his former lifestyle.” Under factor two of the Ferguson factors, “[t]he degree to which each spouse has expended, withdrawn or otherwise disposed of marital assets and any prior distribution of such assets by agreement, decree, or otherwise,” the chancellor merely listed the amount Tammy had withdrawn from GSPT since the separation. The chancellor also stated that Tammy had made unsuccessful business investments and had changed her accounting practices since the separation.

¶ 21. The chancellor’s decree contains no explicit or implicit finding of wasteful dissipation. Tammy’s assertions otherwise are unsupported. Tammy cites Armstrong v. Armstrong, to support that wasteful dissipation is a factor to be considered when awarding alimony. Armstrong v. Armstrong, 618 So.2d 1278, 1280 (Miss.1993). However, because the chancellor was equitably distributing assets under Ferguson via an award of lump-sum alimony, which reflects Dane’s interest in the business, the chancellor was not considering the factors presented in Armstrong. See Haney v. Haney, 907 So.2d 948 (Miss.2005) (discussed infra, Issue VI). The chancellor’s ruling 'as to this issue is affirmed.

III. Whether the trial court manifestly erred by excluding expert opinion testimony from Certified Public Accountant Todd Boolos.

¶ 22. After hearing Tammy’s testimony on the first day of trial, Dane filed a motion to exclude Boolos’s testimony based on the revelation at trial that he had been “actively involved” in aiding Tammy in financial decisions made after the separation, decisions which Dane avers were adverse to his interest. Dane also asserted that he observed Boolos actively participating with Tammy’s counsel during the first day of trial.

¶ 28. Tammy argues that, after hearing arguments from both sides, the chancellor made an on-the-record ruling, prohibiting Boolos from testifying as an expert witness, thus limiting his testimony to that of a fact witness. What Tammy fails to reveal is that, during the hearing, the chancellor specifically asked, “[i]s he going to be testifying as an expert or a fact witness.” Tammy presented to the chancellor that Boolos’s testimony was more factual in nature and proceeded to explain what his testimony would entail. Based on that explanation, the chancellor denied Dane’s motion and allowed Boolos to testify. Boo-los proceeded to provide lengthy and detailed testimony for the chancellor’s consideration.

¶24. Tammy argues that Boolos was prevented from showing “... the value of [Tammy’s] net worth, the true value of the marital estate, financial condition of GSPT, and her ability to pay the excessive alimony awarded to Dane.” Nevertheless, a review of the transcript shows that Boolos touched on those issues in his testimony. Further, Tammy offers no explanation as to what differing testimony Boolos would have provided had he testified as an expert rather than as a fact witness, nor does she offer how his expert testimony would have differed from Herrin’s, whom Tammy agreed to and designated as her expert witness.

¶ 25. Therefore, Tammy failed to present an argument to support that the chancellor erred in ruling that Boolos would testify as a fact witness, because Tammy conceded at the hearing that Boo-los’s testimony was “factual in nature.” Further, Tammy provides nothing to support how Boolos’s testimony would have differed had he testified as an expert witness. Accordingly, this issue is without merit.

IV. Whether the trial court manifestly erred by failing to give proper weight to the findings of sexual child abuse by the Warren County Youth Court.

V. Whether the trial court manifestly erred in excluding from evidence a document authored by the Warren County Youth Court judge describing facts and circumstances underlying the youth court’s findings of sexual child abuse.

¶ 26. Tammy avers that “[mjarital misconduct is a factor for consideration in property division in both fault-based and irreconcilable-differences divorces.” Tammy relies on Driste v. Driste to support her assertion; however, Driste is inapplicable to the facts before us, as Driste considered an award of permanent periodic alimony. Driste v. Driste, 738 So.2d 763, 766 (Miss.Ct.App.1998). Nonetheless, “[i]t is true that the chancellor is entitled to weigh ‘[mjarital misconduct’ as a ‘viable factor’ in his analysis of the Ferguson factors, but ‘only when the misconduct places a burden on the stability and harmony of the marital and family relationship.’ ” Phillips v. Phillips, 45 So.3d 684, 697 (Miss.Ct.App.2010) (quoting Carrow v. Carrow, 642 So.2d 901, 904-905 (Miss.1994) (citing Ferguson, 639 So.2d at 927)).

¶ 27. Tammy contends that proper weight was not given to the ruling by the youth court, because the chancellor did not allow into evidence a brief that was authored by the youth court, containing the judge’s findings regarding the alleged sexual abuse. Dane argued that there was little relevance to the document because he had been found not guilty in circuit court, and the remaining counts were dismissed with prejudice. However, the chancellor allowed the adjudication order to be entered into evidence. The chancellor did not allow the brief entered into evidence, stating, “... I think the [Youth] Court speaks through the order and not the brief.”

¶ 28. Furthermore, in the final decree, the chancellor discussed the situation surrounding the allegations of sexual abuse, recognized both dispositions in youth court and in circuit court, and specified that the events surrounding the accusations marked the point in time when the marital and family relationship were no longer stable and harmonious. The chancellor then concluded as follows:

While the Court considered the fault as alleged by Tammy, the Court notes that the Youth Court found two of the children to be abused and the Circuit Court found the accused not guilty. The Court considers this factor neutral.

Based on the chancellor’s on-the-record rulings and her consideration of the fault alleged by Tammy, the chancellor did not' err in her determination. Because of the results of three separate trials in circuit court and the ultimate dismissal of the remaining counts against Dane, the chancellor did not abuse her discretion by considering the results from both the youth court and the circuit court and determining that the alleged fault was a neutral factor. We affirm the chancellor on this issue. Further, appropriate weight was given to the issue of fault, and no error resulted from the chancellor’s decision to exclude the youth-court brief from evidence, as the chancellor allowed into evidence the adjudication order and considered the facts and circumstances surrounding the alleged sexual abuse.

VI. Whether the trial court manifestly erred in failing to consider and make on-the-record findings as to whether Tammy could reasonably pay the alimony awarded to Dane.

¶ 29. Tammy argues that the chancellor erred by not making an on-the-record finding regarding Tammy’s ability to pay Dane $8,421.75 per month for 180 months. The only support Tammy lends to this argument is this Court’s previous holding that chancellors must make an on-the-record Armstrong analysis when awarding alimony. Lourrey v. Lourrey, 25 So.3d 274, 280 (Miss.2009). As previously mentioned, the chancellor conducted her analysis pursuant to the Ferguson factors because she was equitably distributing the parties’ marital assets.

¶ 30. Lump-sum alimony can serve two distinct purposes. The first purpose is to aid the chancellor in equitably dividing the marital estate under the Ferguson factors. See Haney, 907 So.2d 948. The second purpose is to aid the chancellor in correcting an equitable deficit, resulting from the equitable distribution of the marital estate under the Armstrong factors. See Rogillio v. Rogillio, 57 So.3d 1246, 1249 (Miss.2011).

¶ 31. In Haney v. Haney, this Court found that the chancellor’s award of lump-sum alimony was allocated to equitably distribute the marital assets. Haney, 907 So.2d at 952. This Court discussed how, prior to Ferguson, lump-sum alimony was ■the central mechanism through which marital property was divided. Haney, 907 So.2d at 952. In Cheatham v. Cheatham, the Court set out factors to be taken into account when considering an award of lump-sum alimony. Cheatham v. Cheatham, 537 So.2d 435, 438 (Miss.1988). Based on the factors later presented in Ferguson, this Court stated:

Clearly, the Cheatham factors were simply an earlier attempt by this Court to provide a chancellor with guidelines for awarding what today is called an equitable distribution of marital assets, under appropriate circumstances. Indeed, we see no Ferguson factor which would be inappropriate in evaluating lump sum alimony. Although we continue to refer to certain payments as “lump sum alimony,” these payments are really no more than equitable distribution in the form of lump sum cash, rather than an equitable portion of certain property which cannot be divided equitably.

Haney, 907 So.2d at 955.

¶ 32. This Court later considered an award of lump-sum alimony and reiterated that “... the chancery court was obligated to apply the appropriate factors ... the Cheatham-Ferguson factors.” Yelverton v. Yelverton, 961 So.2d 19, 25 (Miss.2007). See also Dickerson v. Dickerson, 34 So.3d 637, 647-48 (Miss.Ct.App.2010) (After reviewing Haney and Yelverton, the court concluded that chancellors should consider lump-sum alimony under the Ferguson factors; however, an analysis under Cheatham is not reversible error.); George v. George, 22 So.3d 424, 427-30 (Miss.Ct.App.2009) (Lump-sum alimony was analyzed under this Court’s ruling in Haney, considering the Cheatham factors, while periodic alimony was analyzed under the factors set forth in Armstrong.); Dunn v. Dunn, 911 So.2d 591 n. 4 (Miss.Ct.App.2005) (acknowledging that, pursuant to Haney, the Ferguson factors should be considered when determining an award of lump-sum alimony).

¶ 33. In Lauro v. Lauro, this Court described alimony as something which is contemplated subsequent to the equitable division of marital property. Lauro v. Lauro, 847 So.2d 843, 848 (Miss.2003). Lauro relies on the language set forth in Johnson v. Johnson, quoting:

If there are sufficient marital assets which, when equitably divided and considered with each spouse’s non-marital assets, will adequately provide for both parties, no more need be done. If the situation is such that an equitable division of marital property, considered with each party’s non-marital assets, leaves a deficit for one party, then alimony based on the value of non-marital assets should be considered.

Lauro, 847 So.2d at 848 (emphasis original) (quoting Johnson v. Johnson, 650 So.2d 1281, 1287 (Miss.1994)). Lauro further explains that the Armstrong factors must be considered when awarding alimony. Lauro, 847 So.2d at 848. See Lowrey, 25 So.3d at 280. (“Failure to make an on-the-record ... analysis is manifest error.”).

¶ 34. If lump-sum alimony is awarded as a mechanism to equitably divide the marital assets, then chancellors may conduct their analysis under the Ferguson factors. Haney, 907 So.2d at 955. However, if the alimony, lump-sum or otherwise, is awarded subsequent to the equitable distribution of the marital assets, then chancellors must conduct their analysis under the Armstrong factors. Lauro, 847 So.2d at 848.

¶ 35. In the instant ease, the chancellor fully considered the award of lump-sum alimony under the Ferguson factors because the award served as a means to equitably divide the marital property. Therefore, the chancellor appropriately conducted a Ferguson analysis in the findings of facts and conclusions of law incorporated it into the final decree; thus, the chancellor did not fail to adequately consider Tammy’s ability to pay the award. This issue is without merit.

CONCLUSION

¶ 36. The chancellor did not apply an erroneous legal standard, was not clearly erroneous, nor was she manifestly wrong in her determinations. Further, her conclusions are supported by the evidence before this Court. Accordingly, the final decree of the Chancery Court of Warren County is affirmed.

¶ 37. AFFIRMED.

WALLER, C.J., DICKINSON, P.J., LAMAR, KITCHENS, CHANDLER, PIERCE, KING AND COLEMAN, JJ„ CONCUR.

      . Tammy was 33.34 percent owner of Aquilla Development, LLC.

        .Ferguson established that chancellors must consider the following factors when determining equitable division of marital property:
      1. Substantial contribution to the accumulation of the property, (a) Direct or indirect economic contribution to the acquisition of the property, (b) Contribution to the stability and harmony of the marital and family relationships as measured by quality, quantity of time spent on family duties and duration of the marriage,(c) Contribution to the education, training or other accomplishment bearing on the earning power of the spouse accumulating the assets; 2. The degree to which each spouse has expended, withdrawn or otherwise disposed of marital assets and any prior distribution of such assets by agreement, decree or otherwise; 3.The market value and the emotional value of the assets subject to distribution; 4.The value of assets not ordinarily, absent equitable factors to the contrary, subject to such distribution, such as property brought to the marriage by the parties and property acquired by inheritance or inter vivos gift by or to an individual spouse; 5. Tax and other economic consequences, and contractual or legal consequences to third parties, of the proposed distribution; 6. The extent to which property division may, with equity to both parties, be utilized to eliminate periodic payments and other potential sources of future friction between the parties; 7. The needs of the parties for financial security with due regard to the combination of assets, income and earning capacity; and 8. Any other factor which in equity should be considered.

        Ferguson, 639 So.2d at 928.