text:
    STATE of Louisiana v. Felix DEJEAN, IV
    NO. 2017-KK-0369
    Supreme Court of Louisiana.
    April 13, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Concordia, 7th Judicial District Court Div. A, No. 15-011MH; to the Court of Appeal, Third Circuit, No. KW 16-00789;

L Denied.

WEIMER, J., recused.

HUGHES, J., would grant.

GENOVESE, J., recused.


source: Caselaw Access Project

license: Public Domain

text:
    ETI, INC. v. BUCK STEEL, INC.
    NO. 2017-C-0396
    Supreme Court of Louisiana.
    April 13, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. I, No. 2012-10894; to the Court of Appeal, Fourth Circuit, No. 2016-CA-0602;

| ¶ Denied.


text:
    Camilla Julianna FARRAR, et al. v. Linda Faye WHALEY
    NO. 2017-C-0409
    Supreme Court of Louisiana.
    April 13, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Calcasieu, 14th Judicial District Court Div. D, No. 2013-004648; to the Court of Appeal, Third Circuit, No. 16-790

|, Denied.

HUGHES, J., would grant.


text:
    “M.L.”; and Son “R.P.”, on behalf of and as the Attorney-in-fact of his Mother, “A.P.” v. MAGNOLIA ASSISTED LIVING, L.L.C.; Thomas Mullins, Jr.; and Tammi Duhon
    No. 2017-CC-0413
    Supreme Court of Louisiana.
    April 13, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Ascension, 23rd Judicial District Court Div. A, No. 115,842; to the Court of Appeal, First Circuit, No. 2016 CW1402

|, Denied.


text:
    Patrick SANDEL, et al. v. The VILLAGE OF FLORIEN
    NO. 2017-C-0480
    Supreme Court of Louisiana.
    April 13, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Sabine, 11th Judicial District Court Div. 0, No. 67941; to the Court of Appeal, Third Circuit, No. CA 17-248;

|, Denied.


text:
    STATE IN the INTEREST OF R.J. and M.J.
    NO. 2017-CJ-0490
    Supreme Court of Louisiana.
    April 13, 2017
   IN RE: R.O.;—Other; Applying For Writ of Certiorari and/or Review, Parish of St. Martin, 16th Judicial District Court Div. G, No.'14-JV-17701; to-the Court of Appeal, Third Circuit, No. 16-741

11 Denied.


text:
    STATE IN the INTEREST OF B.W., C.D. & C.D.
    NO. 2017-CJ-0528
    Supreme Court of Louisiana.
    April 13, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Acadia, 15th Judicial District Court Div. A, No. 6203; to the Court of Appeal, Third Circuit, No. 16-209

It Denied.


text:
    Herman Lee HOOPER v. LOUISIANA PIGMENT COMPANY, LP
    NO. 2017-CC-0380
    Supreme Court of Louisiana.
    April 13, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Calcasieu, 14th Judicial District Court Div. G, No. 2013-001665; to the Court of Appeal, Third Circuit, No. CW16-00861

h Granted in part. The judgment of the trial court granting the motion in limine is reversed insofar as it excludes evidence of the plaintiffs applications for disability benefits. See Cleveland v. Policy Management Systems Corp., 526 U.S. 795 (1999);

Smith v. Thurman Oils, Inc., 06-0743 (La.App. 1 Cir. 12/28/06), 951 So. 2d 359, writ denied, 07-0207 (La. 3/23/07), 951 So. 2d 1106. In all other respects, the writ is denied.


text:
    IN RE: Appeal of the Decision of the DISCIPLINARY BOARD NO. 16-PDB-092
    NO. 2017-OB-0285
    Supreme Court of Louisiana.
    April 13, 2017
   Applying For Appeal of the Decision of the Disciplinary Board Office of Discipli-nar Counsel, No. 16-PDB-092;

11 Leave to appeal denied.


text:
    STATE EX REL. Dallas TRAHAN v. STATE of Louisiana
    NO. 2016-KH-0691
    Supreme Court of Louisiana.
    April 13, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Terrebonne, 32nd Judicial District Court Div. E, No. 464472; to the Court of Appeal, First Circuit, No. 2016 KW 0189

|T Denied.

HUGHES, J., would grant.


text:
    Preston G. DEMOUCHETTE, Jr. v. LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS
    NO. 2015-CI-2021
    Supreme Court of Louisiana.
    April 13, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. D, No. 623630; to the Court of Appeal, First Circuit, No. 2015 CA 0968;

| denied.


text:
    STATE of Louisiana v. Robert Dale WILSON
    NO. 2016-KO-0793
    Supreme Court of Louisiana.
    April 13, 2017
   Applying for Writ of Certiorari and/or Review, Parish of Caddo, 1st Judicial District Court, Div. 3, No. 309091; to the Court of Appeal, Second Circuit, No. 50,-481-KA

| denied.


text:
    Audrey Blank LOUQUE, et al. v. SCOTT EQUIPMENT COMPANY, LLC, Trade Name Scott/Toyota Lift of Louisiana (Scott Equipment Sales Company, LLC) et al.
    NO. 2017-00372
    Supreme Court of Louisiana.
    April 13, 2017
   Applying For Writ of Certiorari and/or Review, Parish of St. Charles, 29th Judicial District Court Div. C, No. 78,008; to the Court of Appeal, Fifth Circuit, No. 16-CA-507

h Denied.

HUGHES, J., recused.


text:
    Lydia Clare BULLOCH v. Robert Brian BULLOCH, M.D.
    NO. 2017-C-0348
    Supreme Court of Louisiana.
    April 13, 2017
   Applying for Writ of Certiorari and/or Review, Parish of Ouachita, 4th Judicial District Court, Div. C, No. 2013-2820; to the Court of Appeal, Second Circuit, No. 51,146-CA

h Denied,

HUGHES, J., would grant in part.


text:
    George Raymond WILLIAMS, M.D. v. SIF CONSULTANT OF LOUISIANA
    NO. 2017-C-0390
    Supreme Court of Louisiana.
    April 13, 2017
   Applying For Writ of Certiorari and/or Review, Parish of St. Landry, 27th Judicial District Court Div. C, No. 09-C-5244-C; to the Court of Appeal, Third Circuit, No. 16-343;

11Denied.

GENOVESE, J., recused.


text:
    STATE of Louisiana v. Clyde MILSTEAD, III
    NO. 2017-KK-0407
    Supreme Court of Louisiana.
    April 13, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Acadia, 15th Judicial District Court Div. J, No. 81210; to the Court of Appeal, Third Circuit, No. KW 16-01006;

| iDenied.

HUGHES, J., would grant.


text:
    STATE of Louisiana v. Dejon MIGUEL
    NO. 2017-KK-0400
    Supreme Court of Louisiana.
    April 13, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. M, No. 525-396; to the Court of Appeal, Fourth Circuit, No. 2016-K-1242;

| iDenied.

HUGHES, J., would grant.

GENOVESE, J., would grant.


text:
    TWO CANAL STREET INVESTORS, INC. v. The NEW ORLEANS BUILDING CORPORATION, the City of New Orleans and Mary Kay Kleinpeter-Zamora, in her Capacity as Chief Procurement Officer, Purchasing Bureau
    NO. 2017-C-0475
    Supreme Court of Louisiana.
    April 13, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. A, No. 2015-3905; to the Court of Appeal, Fourth Circuit, No. 2016-CA-1306;

| iDenied.


text:
    DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee FOR MORGAN STANLEY ABS CAPITAL, I INC. TRUST NO. 2004-WMC2 v. Sandra C. MCNAMARA, James F. McNamara, Honorable Dale N. Atkins; Clerk of Court and Ex-Officio Records, and Sugarcane Park, LLC
    2017-CC-0379
    Supreme Court of Louisiana.
    April 13, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. I, No. 2016-1143; to the Court of Appeal, Fourth Circuit, No. 2016-C-1305;

| TPenied.


text:
    Chad WEHRLIN and Michelle Wehrlin, individually, and on behalf of their Minor Children, Bailey Wehrlin and Korey Miller v. The MANITOWOC COMPANY, INC., H & E Equipment Services, Inc. and XYZ Corporation
    NO. 2017-C-0391
    Supreme Court of Louisiana.
    April 13, 2017
   Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. F, No. 590976; to the Court of Appeal, First Circuit, No. 2014 CA 0428;

|! Denied.


text:
    Aleashia CLABKSTON v. Ike FUNDERBURK
    NO. 2017-C-0403
    Supreme Court of Louisiana.
    April 13, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Vermilion, 15th Judicial District Court Div. E, No. C-100,264; to the Court of Appeal, Third Circuit, No. 16-681;

| denied.

HUGHES, J., would grant.


text:
    IN RE: Appeal of the DECISION OF the DISCIPLINARY BOARD NO. 16-PDB-048
    NO. 2017-OB-0258
    Supreme Court of Louisiana.
    April 13, 2017
   Applying For Appeal of the Decision of the Disciplinary Board Office of Disciplinary Counsel, No. 16-PDB-048

|, Leave to appeal denied.


author: ' HIGGINBOTHAM, J.

text:
    STATE of Louisiana v. Donald DICKERSON
    NO. 2016 KA 1336
    Court of Appeal of Louisiana, First Circuit.
    APRIL 12, 2017

      . Bruce G. Whittaker, New Orleans, LA, Attorney for Defendant-Appellant, Donald Dickerson
    Hillar C. Moore, III, District Attorney, Dylan C. Alge, Assistant District Attorney, Baton Rouge, LA, Attorneys for Appellee, State of Louisiana
    BEFORE: HIGGINBOTHAM, THERIOT, AND CHUTZ, JJ.
   ' HIGGINBOTHAM, J.

UThe defendant, .Donald Dickerson, was charged by bill of information with second degree battery, a violation of La. R.S. 14:34.1. He pled not guilty and, following a jury trial, was found guilty as charged. The State subsequently filed a habitual offender bill of information; following a hearing on the matter, the defendant was adjudicated a fourth-felony habitual offender and sentenced to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. The defendant filed a motion to reconsider sen-fence, which was denied. The defendant now appeals, designating two assignments of error.

FACTS

On May 12, 2013, at about 9:00 p.m., David L.! Ray, III, drove to the Memorial Stadium Chevron gas station on Scenic Highway for gas. David’s wife and two daughters were in the vehicle. The card-swipe did not work at his gas pump, so David stood in the line outside to pay for the gas at the cashier window. (The store’s doors had already been locked for the night). As David was standing in line, the defendant approached David, pushed him, said something to him about the pink shirt he was wearing, and told him that he was in the wrong neighborhood. After the defendant and David exchanged words, David stopped talking and turned away, trying to avoid any contact with the defendant. The defendant then punched David in the face, causing him to briefly lose consciousness.

• The defendant struck David several more times while he was either lying on the ground or trying to get up. David’s wife, Angela, exited the vehicle and ran to her husband. Two people who had ridden to the gas station with the defendant, Ashley Simmons and Devin Bessye, approached Angela. While Angela was tending to David and telling the defendant to leave him alone, Devin struck Angela in the | ahead, knocking her unconscious. Ashley then got on top, of Angela and began punching her. C.R.', David’s older teenaged daughter, ran to her mother and tackled Ashley. While C.R, and Ashley fought, someone (likely Devin) punched C.R. in the jaw.

Several patrons at the gas station intervened and broke up the attacks on the Ray family. The defendant, Ashley, and Devin got in a white Jeep Cherokee and left the scene. Latasha Henderson, one of the patrons who witnessed the attacks, followed the defendant and called 911 while in pursuit. The police quickly responded and stopped the defendant around Winbourne Ayenue and North 38th Street.

David suffered serious injuries. He was taken to the emergency room at Baton Rouge General on Bluebonnet, where he was treated by Dr. Keith Schwager. Dr. Schwager testified at trial David had an orbital blowout fracture and a hematoma (bleeding and swelling) behind that injured eyeball. He also had a nasal bone fracture and received ten stitches to his face. David was transferred to Our Lady of the Lake Hospital for specialized treatment by an ophthalmologist and a plastic surgeon. Because his orbital socket was completely fractured, doctors inserted a titanium plate behind his eye. According to David, his injured eye is now two millimeters more recessed in his skull, which causes his eyelid to open wider than it normally would, increasing sensitivity to light.

The defendant did not testify at trial.

ASSIGNMENT OF ERROR NO. 1

In his first assignment of error, the defendant argues that the evidence was insufficient to support the second degree battery conviction. Specifically, the defendant contends the State did not prove that he had the specific intent to inflict | ¿serious bodily injury. The defendant does not dispute that David suffered serious bodily injury.

A conviction based on insufficient evidence cannot stand as it violates Due Process. See U.S. Const, amend. XIV; La. Const, art. I, § 2. The standard of review for the sufficiency of the evidence to uphold a conviction is whether or not, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). See La. Code Crim. P. art. 821(B); State v. Ordodi, 2006-0207 (La. 11/29/06), 946 So.2d 654, 660; State v. Mussall, 523 So.2d 1305, 1308-09 (La. 1988). The Jackson standard of review, incorporated in Article 821, is an objective standard for testing the overall evidence, both direct and circumstantial, for reasonable doubt. When analyzing circumstantial evidence, La. R.S. 15:438 provides that, in order to convict, the factfinder must be satisfied that the overall evidence excludes every reasonable hypothesis of innocence. State v. Patorno, 2001-2585 (La.App. 1 Cir. 6/21/02), 822 So.2d 141, 144.

La. R.S. 14:34.1 provides in pertinent part, with footnote added:

A. Second degree battery is a battery[] when the offender intentionally inflicts serious bodily injury ....
B. For purposes of this Section, ... “[sjerious bodily injury” means bodily injury which involves unconsciousness, extreme physical pain or protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty, or a substantial risk of death.

In order to prove a second degree battery, the State must prove the defendant: (1) committed a battery upon another, (2) without his consent, and (3) intentionally inflicted serious bodily injury. State v. Young, 2000-1437 (La. 11/28/01), 800 So.2d 847, 852. Second degree battery is a crime requiring specific criminal intent. State v. Fuller, 414 So.2d 306, 310 (La. 1982). Specific intent is that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act. La. R.S. 14:10(1). Such state of mind can be formed in an instant. State v. Cousan, 94-2503 (La. 11/25/96), 684 So.2d 382, 390. Specific intent need not be proven as a fact, but may be inferred from the circumstances of the transaction and the actions of defendant. State v. Graham, 420 So.2d 1126, 1127 (La. 1982). The existence of specific intent is an ultimate legal conclusion to be resolved by the trier of fact. State v. McCue, 484 So.2d 889, 892 (La. App. 1st Cir. 1986).

In brief, the defendant maintains that the “single blow” that knocked David unconscious and caused the blowout fracture is not evidence sufficient to prove, beyond a reasonable doubt, that he had the specific intent to cause serious bodily injury. According to the defendant, while “it is unfortunate that the punch” caused such harm, “the fact is that proof that one male punched another male of similar build is not evidence of specific intent to cause serious bodily injury.”

We note initially that there is no requirement that a victim be hit multiple times to satisfy the elements of second degree battery. As the second circuit opined in State v. Diaz, 612 So.2d 1019, 1022 (La. App. 2d Cir. 1993), after the defendant made much of the fact that he had only struck the victim once:

The supreme court has firmly rejected the notion that the second degree battery Statute envisions an offender who mercilessly beats a fallen victim.... The Statute clearly states that the intended harm is “serious bodily injury” and defines this to involve, among other things, unconsciousness, extreme physical pain or protracted and obvious disfigurement. Under the circumstances of this case, when Diaz struck Bullock as hard as he could, he intended to cause serious bodily injury as contemplated by the Statute. [Citation omitted.]

More importantly, however, the testimonial evidence from eyewitnesses in this case established the defendant hit David multiple times. Doris Ward, the cashier at the Chevron station, testified that she did not know who was throwing the punches, I «but that she could “see a guy getting beat.” She saw David “kind of like covering his face, shattering [sic] the punches.” She further indicated that she never saw David throw any punches, but she “could see punches being thrown.”

Latasha Henderson had stopped at the Chevron station to get gas. Latasha testified at trial that she saw the defendant and David exchanging words. The defendant then punched David “very hard and knocked him, like, off of his foot.” Latasha then started walking toward the two men and hoped that someone would stop what was going on. Latasha then testified:

And at this time it’s like—well, somebody was trying—somebody did come and try to help to stop, but I guess—the guy in the red shirt [the defendant], he was just doing so much to—beating the man so bad so the person who tried to stop him, they just like, I’m just going to leave this alone because I’m not going to get into it.

Dan Williams, Jr. was at the Chevron station with his three-year-old son and his brother-in-law, Jamichael Williams. Dan was in the line to pay, standing directly behind David. The defendant and David were arguing. The defendant then hit David, who feil into Dan. Dan gave his son to Jamichael, who took the boy to their car. At trial, Dan testified that the “guy with the dreads” and the red shirt, who he identified as the defendant, steadily and forcefully kept trying to fight and was throwing punches at David “[r]eally trying to hurt something.” At some point, Dan grabbed the defendant, because David was “on the ground almost pretty much lifeless. He don’t [sic] have no more fight in him.... So I felt like it was my duty to stop him.” On cross-examination, Dan explained how the defendant struck David several times, stating: “it was like multiple hits. But from the look of it, you would think it was just one hit” because the defendant hit David and “he was out,” but the defendant followed with more punches while David was down on the ground.

Jamichael Williams also identified the defendant in court at trial. He testified that when he was in line with Dan, he saw the defendant hit David hard two times. | vJamichael brought Dan’s son to the car. According to Jamichael, as David was trying to get up, the defendant hit David five or six more times.

David himself testified that the defendant “crushed” him when they were standing in line. When asked how many times the defendant hit him, David said he had no idea, but that he “had multiple breaks, so he had to hit me more than once.” In any event, whether the defendant’s first punch, which caused the defendant to buckle and fall into Dan, or whether the defendant’s subsequent punches caused the severe damage to David’s eye, a rational juror could have reasonably concluded the defendant had the specific intent to inflict serious bodily injury on David. See State v. Hager, 2013-546 (La. App. 5th Cir. 12/27/13), 131 So.3d 1090, 1093; State v. Landry, 2003-1671 (La. App. 4th Cir. 3/31/04), 871 So.2d 1235, 1239; State v Johnson, 602 So.2d 310, 312 (La. App. 1st Cir. 1992). Dan’s testimony about how the defendant continued to beat a man who was already down was particularly relevant regarding intent.

The trier of fact is free to accept or reject, in whole or in part, the testimony of any witness. Moreover, when there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. The trier of fact’s determination of the weight to be given evidence is not subject to appellate review. An appellate court will not reweigh the evidence to overturn a factfinder’s determination of guilt. State v. Taylor, 97-2261 (La. App. 1st Cir. 9/26/98), 721 So.2d 929, 932. We are constitutionally precluded from acting as a “thirteenth juror” in assessing what weight to give evidence in criminal cases. See State v. Mitchell, 99-3342 (La. 10/17/00), 772 So.2d 78, 83. The fact that the record contains evidence which conflicts with the testimony accepted by a trier of fact does not render the evidence accepted by the trier of fact insufficient. State v. Quinn, 479 So.2d 592, 596 (La. App. 1st Cir. 1985). In the absence of internal contradiction |sor irreconcilable conflict with the physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient to support a factual conclusion. State v. Higgins, 2003-1980 (La. 4/1/05), 898 So.2d 1219, 1226, cert. denied, 546 U.S. 883, 126 S.Ct. 182, 163 L.Ed.2d 187 (2005). Further, the testimony of the victim alone is sufficient to prove the elements of the offense. State v. Orgeron, 512 So.2d 467, 469 (La. App. 1st Cir. 1987), writ denied, 519 So.2d 113 (La. 1988).

When a case involves circumstantial evidence and the trier of fact reasonably rejects the hypothesis of innocence presented by the defense, that hypothesis falls, and the defendant is guilty unless there is another hypothesis which raises a reasonable doubt. State v. Moten, 510 So.2d 55, 61 (La. App. 1st Cir.), writ denied, 514 So.2d 126 (La. 1987). The undisputed testimony was that the defendant, without warning, punched David in the face so hard that he was likely unconscious before he hit the ground, and he continued to strike David while he was down. The jury’s guilty verdict reflected the reasonable conclusion that, based on the defendant’s actions and especially in light of David’s injuries, including an orbital blowout fracture, a hematoma behind the eye, and a nasal bone fracture, the defendant intended to cause, and in fact did cause, serious bodily injury to David. In finding the defendant guilty, the jury clearly rejected the defense’s theory of innocence. See Moten, 510 So.2d at 61.

After a thorough review of the record, we find that the evidence supports the guilty verdict. We are convinced that viewing the evidence in the light most favorable to the State, any rational trier of fact could have found beyond a reasonable doubt, and to the exclusion of every reasonable hypothesis of innocence, that the defendant was guilty of second degree battery. See State v. Calloway, 2007-2306 (La. 1/21/09), 1 So.3d 417, 418 (per curiam).

This assignment of error is without merit.

{^ASSIGNMENT OF ERROR NO. 2

In his second assignment of error, the defendant argues that his life sentence at hard labor is unconstitutionally excessive. He specifically contends that because no one lost their life in the altercation, a life sentence is disproportionate to the seriousness of the offense.

The Eighth Amendment to the United States Constitution and Article I, § 20, of the Louisiana Constitution prohibit the imposition of cruel or excessive punishment. Although a sentence falls vsithin statutory limits, it may be excessive. State v. Sepulvado, 367 So.2d 762, 767 (La. 1979). A sentence is considered constitutionally excessive if it is grossly disproportionate to the seriousness of the offense or is nothing more than a purposeless and needless infliction of pain and suffering. A sentence is considered grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. State v. Andrews, 94-0842 (La. App. 1st Cir. 5/5/95), 655 So.2d 448, 454. The trial court has great discretion in imposing a sentence within the statutory limits, and such a sentence will not be set aside as excessive in the absence of a manifest abuse of discretion. See State v. Holts, 525 So.2d 1241, 1245 (La. App. 1st Cir. 1988). Louisiana Code of Criminal Procedure article 894.1 sets forth the factors for the trial court to consider when imposing sentence. While the entire checklist of La. Code of Crim. P. art. 894.1 need not be recited, the record must reflect the trial court adequately considered the criteria. State v. Brown, 2002-2231 (La.App. 1 Cir. 5/9/03), 849 So.2d 566, 569.

The articulation of the factual basis for a sentence is the goal of La. Code Crim. P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. Code Crim. P. art. 894.1. State v. Lanclos, 419 So.2d 475, 478 (La. 1982). The trial judge Imshould review the defendant’s personal history, his prior criminal record, the seriousness of the offense, the likelihood that he will commit another crime, and his potential for rehabilitation through correctional services other than confinement. See State v. Jones, 398 So.2d 1049, 1051-52 (La. 1981). On appellate review of a sentence, the relevant question is whether the trial court abused its broad sentencing discretion, not whether another. sentence might have, been more appropriate. State v. Thomas, 98-1144 (La. 10/9/98), 719 So.2d 49, 50 (per curiam).

The defendant argues in his brief that, despite all of his convictions being crimes of violence (the instant and three predicates), his life sentence at hard labor is unconstitutional. The defendant notes that his instant conviction did not result in anyone’s death, and he suggests that life imprisonment “is clearly a sentence that is so disproportionate as to shock one’s sense of justice.”

The defendant’s life sentence under the habitual offender Statute was mandatory. See La. R.S. 15:529.1(A)(4)(b). In State v. Dorthey, 623 So.2d 1276, 1280-81 (La. 1993), the Louisiana Supreme Court opined that if a trial judge were to find that the punishment mandated by La. R.S. 15:529.1 makes no “measurable contribution to acceptable goals of punishment” or that the sentence amounted . to nothing more than “the purposeful imposition of pain and suffering” and is “grossly out of proportion to the severity, of the crime,” he has the option, indeed the duty, to reduce such sentence to one that would not, be constitutionally excessive. In State v. Johnson, 97-1906 (La. 3/4/98), 709 So.2d 672, 676-77, the Louisiana Supreme Court reexamined the issue of when Dorthey permits a downward departure from the mandatory minimum sentences in the Habitual Offender, Law.

While the trial court provided a very considered account (addressed below) of why it was imposing the life sentence, there is no need for the trial court to justify a sentence under La. Code Crim. P. art. 894.1 when it is legally required to impose that sentence. As such, the failure to articulate reasons as set forth in Article 894.1 Inwhen imposing a mandatory life sentence is not an error; articulating such reasons or factors would be an exercise in futility since the court has no discretion. State v. Felder, 2000-2887 (La.App. 1 Cir. 9/28/01), 809 So.2d 360, 371, writ denied, 2001-3027 (La. 10/25/02), 827 So.2d 1173. See also State v. Ditcharo, 98-1374 (La. App. 5th Cir. 7/27/99), 739 So.2d 957, 972, writ denied, 99-2551 (La. 2/18/00), 754 So.2d 964; State v. Jones, 31,613 (La.App. 2 Cir. 4/1/99), 733 So.2d 127, 146, writ denied, 99-1185 (La. 10/1/99), 748 So.2d 434; State v. Williams, 445 So.2d 1264, 1269 (La. App. 3d Cir.), writ denied, 449 So.2d 1346 (La. 1984).

Mandatory sentences have been repeatedly upheld as constitutional and consistent with the federal and state constitutional provisions prohibiting cruel, unusual or excessive punishment. See State v. Jones, 46,758 (La.App. 2 Cir. 12/14/11), 81 So.3d 236, 249, writ denied, 2012-0147 (La. 5/4/12), 88 So.3d 462. To rebut the presumption that the mandatory minimum sentence is constitutional, the defendant must clearly and convincingly show that he is exceptional, which means that because of unusual circumstances this defendant is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case. Johnson, 709 So.2d at 676.

While not required, as discussed, the trial court thoroughly considered La. Code Crim. P. art. 894.1, including the defendant’s personal and criminal history, in imposing a life sentence:

THE COURT: Okay. All right.
Mr. Dickerson, you are here for sentencing today. You were found guilty of the offense of second-degree battery. I have ordered a pre-sentence report in this case. I have reviewed that pre-sen-tence report in its entirety.
You are here for sentencing as a fourth-felony offender, with the three prior felonies being crimes of violence. However, I have considered the pre-sentence report.
hid have considered] your Statement that’s contained in the pre-sentence report where you say you’re sorry that this happens, but you don’t really take full responsibility for your actions in this case as pointed out by the Office of Probation and Parole.
I have considered the victim impact Statement. Your conduct, by definition, caused serious bodily injury to the victim in this case. It continues to cause physical problems and also—not just for him, but also his family issues based on your actions in this case.
I have considered your juvenile record, which is extensive. I have considered your prior criminal history. Other than what I’ve heard here today, which shows the three prior convictions of purse snatching, armed robbery, and simple robbery, all crimes of violence, you also have a conviction, a felony conviction, according to the pre-sentence report, for a carnal knowledge of a juvenile which you were sentenced to four years in the—in DOC. That arrest occurring in 1991. I’m also aware now of the federal conviction, which you have also, sir.
All of those, including the conviction which you’re here for sentencing, is six felony convictions, which is an astounding number of convictions.
I have taken into account your history, as I’ve stated, as a juvenile. I’ve considered your social history, having been raised in Baton Rouge, oldest of two children. Your parents were divorced when you were very young. You did grow up in East Baton Rouge. You attended the public school system, but you were suspended in middle school for fighting. You have an extensive history of crimes against a person and crimes of violence.
I’ve taken into account the method in which you grew up contained in the pre-sentence report. You did, to your credit, obtain a GED while in the Department of Corrections. You are married with no children, and I have considered the social history contained in the pre-sen-tence report.
I’ve considered the recommendation from the Office of Probation and Parole. As Probation and Parole says, you have a significant criminal and violent history.
In considering the sentencing guidelines of Code of Criminal Procedure Article 894, this Court has taken into consideration all of the factors under Code of Criminal Procedure Article 894, and the Court finds that any lesser sentence than the one I’m about to impose would deprecate the seriousness of this offense, and that you are in need of custodial or a correctional environment best served by a commitment to an institution.
You caused serious bodily injury to another person, sir. It was needless and senseless.
l1PYour record, your criminal history shows that you are basically the definition of what a career criminal and violent offender is. You are the reason we have a Habitual Offender Statute. Habitual Offender Statute is to protect the citizens of this state from the most dangerous and violent criminals, and you have proven yourself to be exactly that and that is the purpose of this Statute and that is the reason for the sentence that you will receive in this case.
Your conduct in this case has caused many of the good citizens of our community to be fearful; fearful to simply perform or run an ordinary, every-day life errand, and that is ashame [sic], And apparently that’s what a lot of people will remember about your actions in this case.
However, what I choose to remember, and what I hope most people will remember, is the care and the aid given by the good citizens of this community to the victim in this case, and his family, along with their aid in the solving of this crime. Your actions have done nothing but caused a very, very severe mark, bad mark on our community, sir, which makes people around the country think less of our community, and that is as-hame [sic] because it is a good community. And it is more aptly reflected by the actions of the other people out at that gas station other than you.
The Court has taken into account your actions in this case, which I do find to be very egregious. You played a major role in the commission of this offense. I’ve taken into account your age, educational level, work history, social history, criminal history. This is a mandatory sentence, and it is one that you deserve based on your actions in this case and your prior criminal history.

We agree with the trial court’s assessment and see no reason to disturb the imposition of a life sentence. There is nothing particularly unusual about the defendant’s circumstances that would justify a downward departure from the mandatory sentence under La. R.S. 15:529.1(A)(4)(b). The record before us clearly established an adequate factual basis for the sentence imposed/ We note as well that, despite the defendant’s' assertion in brief that his instant conviction did not result in anyone’s death, the defendant is not being sentenced to life for. second degree battery conviction, alone. Rather, under the Habitual Offender- Law, the defendant, a recidivist with multiple felony convictions, :in~ eluding purse snatching, simple robbery, and armed robbery, is being punished for .the. instant crime in light of his continuing disregard for the laws of our State. See Johnson, 709 So.2d at 676-77.

InThe defendant has not proven by clear and convincing evidence that he is exceptional such that a mandatory life sentence would not be meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case. See Johnson, 709 So.2d at 676. Accordingly, no downward departure from the presumptively constitutional mandatory life sentence is warranted. The sentence imposed is not grossly disproportionate to the - severity of the offense and, therefore, is not unconstitutionally excessive.

This assignment of error is without merit.

DECREE

For the stated reasons, we affirm the defendant’s conviction, habitual offender adjudication, and sentence.

CONVICTION, HABITUAL OFFENDER ADJUDICATION, AND SENTENCE AFFIRMED.

      . The defendant has prior convictions for purse snatching, armed robbery, and simple robbery.

      . Minor victims of offenses are referred to by their initials. See La. R.S. 46:1844(W).

      . Battery is the intentional use of force or violence upon the person of another. La. R.S. 14:33.


author: CALLOWAY, J. McDonald, J.,

text:
    Donald Joe CALLOWAY v. Anna LOBRANO
    2016 CA 1170
    Court of Appeal of Louisiana, First Circuit.
    APRIL 12, 2017

      Nicholas M. Graphia, Baton Rouge, Louisiana, Attorney for Plaintiff/Appellant, Donald Joe Calloway
    Dale R. Baringer, James S. Holliday, Jr., Benjamin J. B. Klein, James R. Bull-man, Jarred W. Schick, Baton Rouge, Louisiana, Attorneys for Defendant/Appellee, Anna Lobrano
    BEFORE: PETTIGREW, McDonald, and calloway, jj.

      . Hon. Curtis Calloway, retired, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

   CALLOWAY, J.

I ¿Plaintiff, Donald Joe Calloway, appeals a judgment granting the exceptions raising the objections of no cause of action and prescription filed by defendant, Anna Lobrano, and dismissing his claims with prejudice. For the reasons stated herein, we affirm.

FACTS AND PROCEDURAL HISTORY

Mr. Calloway filed suit against Ms. Lo-brano on November 23, 2015, seeking to be reimbursed for a $400,000.00 check he issued to her on August 15, 2012. Mr. Callo-way alleged that he delivered the check to his late grandfather, T Joe Calloway, who was Ms. Lobrano’s boyfriend, and that his grandfather presented the check to Ms. Lobrano, who negotiated it. Mr. Calloway alleged that he had made amicable demand on Ms. Lobrano, but she had not returned the funds. The petition stated the causes of action were “enrichment without cause” pursuant to La. C.C. art. 2298 and “obligation to restore” pursuant to La. C.C. art. 2299.

Ms. Lobrano filed a peremptory exception raising the objection of no cause of action, and in the alternative, raising the objection of prescription, claiming that Mr. Calloway failed to plead a prima facie cause of action for a claim of unjust enrichment. Ms. Lobrano also asserted that Mr. Calloway’s claim was prescribed pursuant to La. C.C. art. 3494(3), since the funds should have been characterized as a loan.

A hearing was held on February 22, 2016, wherein the trial court sustained Ms. Lobrano’s exception raising the objection of prescription and took the exception raising the objection of no cause of action under advisement, On the |ssame date as the hearing, Mr. Calloway filed an amended petition alleging the elements of a cause of action of unjust enrichment and asserting, alternatively, that the check made payable to Ms. Lobrano was a loan of which he expected to be repaid a year from the date of the check. It is unclear from the record if the trial court was aware of the amended petition at the time of the hearing or when it issued its oral ruling. On February 29, 2016, the trial court issued a ruling sustaining the exceptions raising the objections of no cause of action and of prescription, and judgment was signed accordingly on March 18, 2016.

Mr. Calloway filed a motion for new trial, which the trial court heard on May 16, 2016. The trial court denied the motion for new trial, and judgment was signed on May 20, 2016. Mr. Calloway moved for appeal from a final judgment rendered March 18, 2016. He also acknowledged that a motion for new trial hearing was held on May 16, 2016, which was denied and that he desired to “appeal devolutively from the final judgment rendered in this action.” The only description of the final judgment in the motion for appeal refers to the March 18, 2016 judgment, not the May 20, 2016 judgment denying the motion for new trial. The actual order signed by the trial court does not specify which judgment is being appealed. Therefore, given the motion and order before us in the record, we consider this appeal to be from the March 18, 2016 judgment on the merits, the only judgment referenced by Mr. Calloway in his motion for appeal.

ERRORS

Mr. Calloway claims that the trial court erred in finding that he failed to state a cause of action for unjust enrichment and in finding that his claim had prescribed.

j^LAW AND DISCUSSION

Exception of No Cause of Action

The function of the peremptory exception of no cause of action is to test the legal sufficiency of the petition by determining whether the law affords a remedy on the facts alleged in the pleading. Everything on Wheels Subaru, Inc. v. Subaru South Inc., 616 So.2d 1234, 1235 (La. 1993); Copeland v. Treasure Chest Casino, LLC, 2001-1122 (La.App. 1 Cir. 6/21/02), 822 So.2d 68, 70. All facts pled in the petition must be accepted as true. Rebardi v. Crewboats, Inc., 2004-0641 (La.App. 1 Cir. 2/11/06), 906 So.2d 456, 457. Furthermore, the facts shown in any documents annexed to the petition must also be accepted as true. See B & C Electric, Inc. v. East Baton Rouge Parish School Board, 2002-1578 (La.App. 1 Cir. 5/9/03), 849 So.2d 616, 619; Cardinale v. Stanga, 2001-1443 (La.App. 1 Cir. 9/27/02), 835 So.2d 576, 578; see also La. C.C.P. art. 853 (“A copy of any written instrument which is an exhibit to a pleading is a part thereof for all purposes.”) No evidence may be introduced to support or controvert the objection that the petition fails to state a cause of action. La. C.C.P. art. 931. The exception is triable on the face of the pleading, and for the purpose of determining the issues raised by the exception, the well-pleaded facts in the pleading must be accepted as true. Richardson v. Richardson, 2002-2415 (La.App. 1 Cir. 7/9/03), 859 So.2d 81, 86. Thus, the only issue at the tidal of the exception is whether, on the face of the petition, the plaintiff is legally entitled to the relief sought. Perere v. Louisiana Television Broadcasting Corporation, 97-2873 (La.App. 1 Cir. 11/6/98), 721 So.2d 1075, 1077.

In the present case, both the petition and amended petition filed by Mr. Calloway contained annexed documents, which this court must consider on our review of the exception raising the objection of no cause of action. The only | ^documentary evidence that may be considered on an exception raising the objection of no cause of action is that which has been annexed to the petition, unless the evidence is admitted without objection to enlarge the petition. Woodland Ridge Ass’n v. Cangelosi, 94-2604 (La.App. 1 Cir. 10/6/95), 671 So.2d 508, 511.

In reviewing a trial court’s ruling sustaining an exception raising the objection of no cause of action, the appellate court conducts a de novo review. The exception raises a question of law, and the trial court’s decision is based only on the sufficiency of the petition. Fink v. Bryant, 2001-0987 (La. 11/28/01), 801 So.2d 346, 349; B & C Elec., 849 So.2d at 619. Simply stated, a petition should not be dismissed for failure to state a cause of action unless it appears beyond doubt that the plaintiff can prove no set of facts in support of any claim that would entitle him to relief. Every reasonable interpretation must be accorded the language of the petition in favor of maintaining its sufficiency and affording the plaintiff the opportunity to present evidence at trial. Richardson, 859 So.2d at 86. The question, therefore, is whether, in the light most favorable to the plaintiff, and with every doubt resolved in his behalf, the petition states any valid cause of action for relief. Copeland, 822 So.2d at 70.

When a petition states a cause of action as to any ground or portion of the demand, an exception raising the objection of no cause of action must be overruled. Thus, if the petition sets forth a cause of action, none of the other causes of action may be dismissed based on an exception pleading the objection of no cause of action. Further, any doubts are resolved in favor of the sufficiency of the petition. Copeland, 822 So.2d at 70.

Unjust enrichment requires a person who has been enriched without cause at the expense of another person to provide compensation to that person. La. C.C. 1 fiart, 2298. Recovery pursuant to unjust enrichment requires a plaintiff to prove: (1) an enrichment; (2) an impoverishment; (3) a connection between the enrichment and the resulting impoverishment; (4) an absence of justification or cause for the enrichment and impoverishment; and (5) the lack of another remedy at law. Davis v. Elmer, 2014-1298 (La.App. 1 Cir. 3/12/15), 166 So.3d 1082, 1088. Most importantly, this remedy is subsidiary in nature and shall not be available if the law provides another remedy. “The mere fact that a plaintiff does not successfully pursue another remedy does not give the plaintiff the right to recover under the theory of unjust enrichment.” Walters v. MedSouth Record Mgmt., LLC, 2010-353 (La. 6/4/10), 38 So.3d 243, 244 (per curiam) (citing La. C.C. art. 2298).

Accepting the facts of the petition and amended petition as true, Mr. Callo-way asserts that Ms. Lobrano received money he did not owe. her; that she was enriched and he was impoverished by the same amount; that the enrichment and impoverishment were connected since the funds were drawn on, his, bank account; and that there was an absence of “justification” or ‘‘legal cause” for the impoverishment as the parties had neither an oral or written agreement concerning ■ the $400,000.00 payment. Although Mr. Callo-way states in his amended petition that he had no other legal remedy at law, he alternatively pleads that the money paid to Ms. Lobrano was a loan, which he expected, to be repaid within a year.

Ms. Lobrano argues ■ that Mr. Calloway failed to allege an absence of justification or legal cause of the impoverishment and did not allege a lack of any' other remedy. Ms. Lobrano asserts that 'Mr. Calloway has another remedy at law in the forrii -of an action to recover money lent, Mr..Callo-way argues that he asserted the causes of action of unjust enrichment and an action on money lent in the alternative. Louisiana Code of Civil Procedure article 89.2 pror vides “a petition may set forth two or more causes of action in the alternative, even though the legal |7or factual bases thereof may be inconsistent of mutually exclusive.” Easy Way Homes Corp. v. Vezinat, 2014-0240 (La. 4/17/14), 137 So.3d 13, 14 (per curiam).

The pertinent issue is whether Mr. Calloway has available remedies, not whether he has a remedy against Ms. Lo-brano. The existence of a contractual remedy precludes a plaintiff from maintaining a cause of action in unjust .enrichment for the same damages. See Insulation Technologies, Inc. v. Industrial Labor and Equipment Services, Inc., 2013-0194 (La. App. 4 Cir. 8/14/13), 122 So.3d 1146, 1151. The Louisiana Supreme Court addressed the very issue, before this court in Walters where the plaintiff alleged.in his petition .a delictual action and a claim for unjust enrichment. “Having pled a delictual action, we find plaintiff is precluded from, seeking to recover under unjust enrichment.” Walters, 38 So.3d at 244 (citing Gallant Investments, Ltd. v. Illinois Central R. Co., 2008-1404 (La.App. 1 Cir. 2/13/09), 7 So.3d 12, 18). Furthermore, the supreme court stated, “[bjecause the law provided plaintiff with another remedy, we find he has failed to state a cause of action in unjust enrichment.” Walters, 38 So.3d at 244. We agree with the trial court that Mr. Callo-way’s allegations fail to state an unjust enrichment cause of action against Ms. Lobrano, because he has a remedy available on the action for money lent, and cannot satisfy the fifth requirement of an unjust enrichment claim, the lack of another remedy at law. See Davis, 166 So.3d at 1088.

Accordingly, based on our de novo review, we conclude the trial court did not err by finding that Mr. Calloway has failed to state a cause of action against Ms. Lobrano for unjust enrichment.

Exception of Prescription

The objection of prescription may be raised by a peremptory exception. La. C.C.P. art. 927(A)(1). Although evidence may be introduced to support or controvert any objection pleaded, in the absence of evidence, an objection of | ^prescription must be decided upon facts alleged in the petition with all allegations accepted as true. La. C.C.P. art. 931; Cichirillo v. Avondale Industries, Inc., 2004-2894 (La. 11/29/05), 917 So.2d 424, 428. When prescription is raised with evidence being introduced at the hearing on the exception, the trial court’s findings of fact on the issue of prescription are subject to the manifest error-clearly wrong Standard of review. London Towne Condominium Homeowner’s Ass’n v. London Towne Co., 2006-401 (La. 10/17/06), 939 So.2d 1227, 1231. Under the manifest error Standard of review, a factual finding cannot be set aside unless the appellate court finds that it is manifestly erroneous or clearly wrong. Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880, 882 (La. 1993).

Ordinarily, a party urging an exception of prescription bears the burden of proving that the prescriptive period has elapsed. However, if the petition shows that it is prescribed on its face, then the burden shifts to the plaintiff to prove that the prescriptive period has not elapsed. Eastin v. Entergy Corp., 2003-1030 (La. 2/06/04), 865 So.2d 49, 54. When evidence is introduced at the hearing on a peremptory exception of prescription, the trial court’s findings of fact are reviewed under the manifest error-clearly wrong Standard of review. Babineaux v. State ex rel. Dept. of Transportation and Development, 2004-2649 (La.App. 1 Cir. 12/22/05), 927 So.2d 1121, 1123. However, where the issue of prescription turns upon the proper application and interpretation of statutory law, the exception presents a question of law for appellate review. See McKenzie v. Imperial Fire and Casualty Ins. Co., 2012-1648 (La.App. 1 Cir. 7/30/13), 122 So.3d 42, 46, writ denied, 2013-2066 (La. 12/6/13), 129 So.3d 534. In the present case, both the trial court’s written ruling on February 29, 2016, and its March 18, 2016 judgment indicate that it did consider exhibits and evidence at the hearing. Therefore, the manifest error Standard of review applies to this matter.

|9Mr. Calloway claims that his action is not prescribed because as one for unjust enrichment, pursuant to La. C.C. art. 2298, it is subject to a ten-year prescriptive period. La. C.C. art. 3499. Ms. Lobrano asserts that the claim is for money lent, which has a three-year prescriptive period. La. C.C. art. 3494. This court has already determined that Mr. Calloway does not have a cause of action for unjust enrichment. Therefore, the only remaining issue is whether his action for money lent has prescribed.

In his amended petition, Mr. Cal-loway alleged that Ms. Lobrano agreed to pay back a “loan” within a year of August 15, 2012. At the hearing on the motion for new trial, Mr. Calloway stated that the money he gave to Ms. Lobrano was not a gift, but a loan, which he intended would be paid back. The loan for consumption is a contract by which a person, the lender, delivers consumable things to another, the borrower, who binds himself to return to the lender an equal amount of things of the same kind and quality. La. C.C. art. 2904. An action on money lent is subject to a three-year prescriptive period. La. C.C. art. 3494(3). The prescription commences to run from the day payment is exigible. La. C.C. art. 3495.

Mr. Calloway asserted in his original petition that the money was lent on August 15, 2012. The petition was filed on November 23, 2015. However, he asserts that there was no oral or written agreement as to the money loaned. He also testified that he and Ms. Lobrano did not discuss the repayment terms. Therefore, he claims that La. C.C. art. 2909 applies, which states, “[i]n the absence of a certain term or of an agreement that performance will be exigible at will, a reasonable term is applied.” Mr. Calloway claims in his amended petition, that he expected to be reimbursed within one year of August 15, 2012, based on a previous loan from Ms. Lobrano to him that he repaid in one year. However, attached to Mr. Calloway’s amended petition is a May 19, 2015 letter from Ms-lm Lobrano’s counsel to Mr. Cal-loway’s counsel rebutting the claim that the disputed funds were a loan. Mr. Callo-way’s testimony at the motion for new trial hearing, that he had no agreement with Ms. Lobrano, rebuts his allegation that she agreed to a one-year term. Based on the conflicting evidence in the record, the trial court apparently made a factual determination that there was a loan, but that it was not subject to a one-year term, and prescribed before Mr. Calloway filed suit. Mr. Calloway’s personal expectation does not create a reasonable term. Furthermore, Mr. Calloway’s loan to Ms. Lobrano became exigible upon the date he made the loan, August 15, 2012. Performance of an Obligation not subject to a term is due immediately. La. C.C. art. 1777; See Webb v. Webb, 2001-1577 (La.App. 1 Cir. 11/8/02), 835 So.2d 713, 720, writ denied, 2002-3001 (La. 3/14/03), 839 So.2d 37. Accordingly, the trial court did not commit manifest error in finding that the claims of Mr. Calloway had prescribed when he filed his petition on November 23, 2015.

ANSWER TO APPEAL

Ms. Lobrano answered the appeal and requested damages and costs for a frivolous appeal. Louisiana Code of Civil Procedure article 2164 provides that an appellate court may award damages, including attorney fees, for a frivolous appeal, and may tax the costs of the lower or appellate court, or any part thereof, against any party to the suit, as in its judgment may be considered equitable. The courts have been reluctant to grant damages under this article, as it is penal in nature and must be strictly construed. In order to assess damages for a frivolous appeal, it must appear that the appeal was taken solely for the purpose of delay or that counsel does not sincerely believe in the view of law he advocates. Furthermore, because appeals are favored in our law, penalties for the filing of a frivolous appeal will not be imposed unless they are clearly due. Henkelmann v. Whiskey Island Preserve, LLC, 13-0180 (La.App. 1 Cir. 5/15/14), 145 So.3d 465, 471.

■lnWe cannot say that this appeal was taken solely for the purpose of delay or that appealing counsel does not seriously believe in the position he advocates. Thus, considering the arguments asserted by Mr. Calloway on appeal, we decline to award Ms. Lobrano any damages for frivolous appeal.,

CONCLUSION

For the above and foregoing reasons, the trial court’s March 18, 2016 judgment, granting Anna Lobrano’s exceptions raising the objections of no cause of action and prescription, and dismissing the claims of Donald Joe Calloway, with prejudice, is hereby affirmed. Costs of this appeal are assessed against plaintiff, Donald Joe Cal-loway.

AFFIRMED.

McDonald, J. concurs in the result only and assigns reasons.

McDonald, J.,

concurring.

1,1 respectfully concur in the result only. At best,' this case has a confusing procedural posture. On February 22, 2016, the trial court conducted a hearing on exceptions of prescription and no cause of action as to the original petition. The petition made a claim for unjust enrichment. The defendant pointed out that the claim was actually' one for money lent. Thus, since the plaintiff had this valid claim under Louisiana law, there was no cause of action for unjust enrichment. Additionally, a claim for money lent prescribes in three years and since suit was not filed within that time, it was prescribed. Inexplicably, the trial court granted the exception of prescription without first ‘ determining what type of action the plaintiff had and took the' no cause of action exception under consideration. Later, the judge also granted that exception and a judgment was signed on March 18, 2016. Evidently, a funny thing happened on the way to the hearing on February 22. The plaintiff filed an amended petition asserting an alternative claim for money lent. It appears that at the time of the hearing, no one but the plaintiffs attorney knew it had been filed.

| gAfter the adverse decision on the original petition, the plaintiff filed a motion for new trial. This was heard on May 18. Strangely, it appears that at this hearing, the trial court addressed not only the issues actually before the court on the motion for new trial, but also the new “money lent” claim in the amended petition. We know this because the record indicates testimony by Mr. Calloway concerning his understanding that he loaned the money to Ms. Lobrano and it was due and payable one year after the date she borrowed it. The transcript of the hearing also indicates argument by counsel for both parties and discussion by the court about the Claims in the amended petition. A judgment was signed on May 20, 2016, that denied the motion for new trial. The judgment does not mention the- amended petition. So, even if the issues to be decided by the trial court at the May 18 hearing were expanded to include the exceptions of prescription and no cause of action as they pertain to the amended petition, I do not believe the May 20 judgment addresses the amended petition. It only denies the motion for new trial.

It is difficult to determine what is before us on appeal. The notice of appeal only mentions one judgment, the March 18 judgment. As noted by the majority, the number “18” has been lined out and the number “20” as been written in. It is most likely that Mr. Calloway intended to appeal the May 20, 2016 judgment. This, arguably, would have appealed the judgment of March 18 granting the exceptions of prescription and no cause of action as well as the decision denying the motion for new trial on those issues in the original petition. However, I am not sure the May 20 judgment addresses the issues in the amended petition; I do not believe there is a judgment on those issues. The May 20 judgment only denies the motion for new trial; it does nothing else.

Thus, in reviewing the March 18 judgment, we need not discuss the amended petition since it is not before us. As already mentioned, I do not believe it can be before us, because there is no judgment that directly deals with it. However, I believe the majority is correct in affirming the trial court’s judgment.

For these reasons, I respectfully concur.

      . Mr. Calloway has no relation to Judge Cal-loway, the author of this opinion,

      . This court notes that the minutes of the trial court refer to the hearing, but that the record before us does not contain the transcript of what transpired at that hearing.

      . In her brief, Ms. Lobrano asserts that the trial court took the exception of no cause of action under advisement on the date of the hearing so that it could consider the amended petition Mr. Calloway filed on the morning of the hearing.

      .This court notes that the "18” is scratched out and replaced with a "20” in the record. However, there is no judgment rendered in this matter on March 20, 2016.

      . While ‘titled, as an "amended petition” this .is actually- a supplemental petition. Rather than amend any of the original eight paragraphs of the original petition it adds new paragraphs and asserts a new cause of action.

      . On February 29, 2016, the trial court issued written reasons that were memorialized in the March 18 judgment. In his reasons that sustained both the exception of prescription and no cause of action, the trial court judge only references the cause of action for unjust enrichment and states that he does not believe the grounds raised in the exception can be removed by amending the petition. This would certainly indicate that he was unaware that an amended petition had already been filed-


author: CALLOWAY, J.

text:
    Gary Randall FREEMAN v. Renee Aspirion FREEMAN

    2016 CA 0580
    Court of Appeal of Louisiana, First Circuit.
    APRIL 12, 2017

      Frank P. Tranchina, Jr., Mark J. Mansfield, Kevin P. Maney, Covington, Louisiana, Attorneys for Appellant Plaintiff-Gary Randall Freeman
    Kasi Brannan, Covington, Louisiana, Attorney for Appellee Defendant-Reneé As-piron Freeman
    BEFORE: PETTIGREW, McDonald, and galloway, jj.

      . The caption of the original petition misspells "Aspirion/’ which the record otherwise reflects is correctly spelled “Aspiron.”

      . Hon. Curtís A. Calloway, retired, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

   CALLOWAY, J.

I {¡Plaintiff-Appellant appeals from a trial court judgment concerning permanent spousal support, child support, contempt, and arrears. For the following reasons, we affirm the trial court’s judgment.

FACTS AND PROCEDURAL HISTORY

The plaintiff, Gary Randall Freeman, and the defendant, Renee Aspiron Freeman, were married on November 18, 1989; two children were born of the marriage on May 25, 1994 and on May 30, 2002. In February 2012, the parties began living separate and apart, and on April 3, 2012, Mr. Freeman filed a petition for divorce. Pursuant to a July 31, 2012 consent judgment, the trial court set Mr. Freeman’s interim spousal support obligation at $2,328.00 per month; his child support obligation at $1,219.00 per month; and additionally, the trial court ordered him to maintain medical, dental, and vision insurance for the children and made him responsible for 92% of the remaining minor child’s extraordinary medical expenses, extracurricular activities, and mandatory school fees.

The parties were divorced by judgment dated May 23, 2013. After the divorce, the parties entered into a consent judgment of partition of community property on April 9, 2014, which set Mr. Freeman’s final spousal support obligation at $635.00 per month, to terminate when the parties’ minor child graduated high school.

On May 13, 2015, Ms. Freeman filed a rule to increase child support and a rule for contempt. Shortly thereafter, on June 15, 2015, Mr. Freeman filed a motion to terminate the final spousal support award. A hearing officer for the trial court heard the three matters on September 11, 2015, and recommended that Mr. Freeman’s child support obligation decrease, from $1,219.00 per month to $1,008.00 per month, and that beginning June 1, 2015, his pro-rata responsibility for the minor child’s extraordinary medical expenses, extracurricular activities, and mandatory school fees decrease, from 92% to 85%. The heaxing officer also recommended that Mr. Freeman’s motion to | ^terminate final spousal support be denied. Mr. Freeman objected to the hearing officer’s recommendations, and the matter was set for trial on October 29, 2015.

Following trial, the trial court signed a judgment on January 14, 2016: (i) denying Mr. Freeman’s motion to terminate final spousal support; (ii) denying Ms. Freeman’s rule for contempt, but ordering Mr. Freeman to pay any outstanding extracurricular expenses; (Hi) ordering Mr. Freeman to pay Ms. Freeman child support in the amount of $1,008.00 per month; (iv) ordering the parties to share tuition, registration, mandatory school fees, extraordinary medical expenses, and agreed-upon activity fees on a pro-rata basis: Ms. Freeman responsible for 15%, and Mr. Freeman responsible for 85%, effective June 1, 2015; (v) ordering Mr. Freeman to maintain health and hospitalization insurance coverage for the minor child and provide Ms. Freeman with documentation of and access to the policy and health care providers; (vi) ordering the parties to request reimbursement for expenses with a copy of the bill/statement within thirty days of the incurrence, otherwise waiving the right to be reimbursed; requiring the reimbursement to be made within thirty days; and (vii) ordering the parties to purchase a subscription to OurFamilyWizard.com for use as their primary means of communication.

Mr. Freeman now appeals, contending the trial court erred in denying his motion to terminate final spousal support. Mr. Freeman assigns four errors to the trial court’s final judgment:

1. The [tjrial [cjourt was manifestly erroneous in calculating a final spousal support award before deciding whether the payments were intended as ‘disguised child support.’
2. The [tjrial [cjourt was manifestly erroneous in finding that [Ms. Free-manj was ‘in need’ of final spousal support by failing to require depletion of assets.
3. The [tjrial [cjourt was manifestly erroneous in finding that [Ms. Freeman] was ‘in need’ of final spousal support by failing to find [that Ms. Freeman] was voluntarily underemployed.
4. The [tjrial [cjourt was manifestly erroneous in finding that [Ms. Freeman] was ‘in need’ of final spousal support by miscalculating [Ms. Freeman’s] tax rate.

I ¿LAW AND DISCUSSION

There are no allegations that Ms. Freeman was at fault in the dissolution of the marriage. The issues raised in this appeal are limited to the trial court’s denial of Mr. Freeman’s motion to terminate spousal support and whether the court’s calculation of his spousal support obligation was correct.

Louisiana Civil Code articles 111 and 112 provide for an award of spousal support. Article 111 provides, in pertinent part:

In a proceeding for divorce or thereafter, the court may award.. .final periodic support to a party who is in need of support and who is free from fault prior to the filing of a proceeding to terminate the marriage in accordance with the following Articles.

Article 112 provides, in pertinent part:'

A. When a spouse has not been at fault prior to the filing of a petition for divorce and is in need of support, based on the needs of that party and the ability of the other party to pay, that spouse may be awarded final periodic support in accordance with Paragraph C of this Article.
* * *
C. The court shall consider all relevant factors in determining the amount and duration .of final support, including:
(1) The income and means of the parties, including the liquidity of such means.
(2) The financial obligations of the parties, including any interim allowance or final child support obligation.
(3) The earning capacity of the parties.
(4) The effect of custody of children upon a party’s earning capacity.
(5) The time necessary for the .claimant to acquire appropriate education, training, or employment.
(6) The health and age of the parties.
(7) The duration of the marriage.
(8) The tax consequences to either or both parties.
(9) The existence, effect, and duration of any act of domestic abuse committed by the other spouse upon the claimant, | ¿regardless of whether the other spouse was prosecuted for the act of domestic violence.

Article 112 bases an award of spousal support on the needs of the claimant spouse and the ability of the other spouse to pay, subject to the qualifying rules in Article 112 and the following articles. Prestenback v. Prestenback, 2008-0457 (La.App. 1 Cir. 11/18/08), 9 So.3d 172, 177. Article 112 provides that in determining the entitlement, amount, and duration of final support, the court “shall” consider all relevant factors; however the article further states that those factors “may” include the nine enumerated factors. The trial court .need not consider- all. of the listed factors, as such a consideration is discretionary. Prestenback, 9 So.3d at 177. In an action for spousal support, the claimant spouse has the burden of proving Insufficient means of support. Prestenback, 9 So.3d at 177.

Spousal support, once fixed, either by trial or pursuant to a consent judgment, is subject to change where á material change of circumstances for either party can be shown. La. C.C. art. 114; Bland v. Bland, 97-0329 (La.App. 1 Cir. 12/29/97), 705 So.2d 1158, 1161. The.party seeking the modification of support carries the burden of proof that a modification is warranted. Vincent v. Vincent, 2011-1822 (La.App. 4 Cir. 5/30/12), 95 So.3d 1152, 1162. In determining whether the final spousal support award should be modified or terminated based on the changed circumstances of either party, the trial court should consider the relevant factors listed in La. C.C. art. 112. La. C.C. art. 114, Comment (b), Revision Comments—1997. A finding of a change in circumstances does not automatically result in a modification or termination of support; rather, the effect of a finding of a change in circumstances is to shift thé burden to the party opposing the termination of spousal support to prove need and the relevant Article 112 factors. See Martin v. Martin, 2016-0324 (La.App. 4 Cir. 11/16/16), 204 So.3d 717, 722.

A trial court’s determination regarding final spousal support is subject to the abuse of discretion standard of review. Bond v. Bond, 2013-1733, 2014, WL 1203134, at *3 (La. App. 1 Cir. Mar. 24, 2014), writ denied, 2014-1054 (La. 9/12/14), 148 So.3d 932. It is within the trial court’s sound discretion to fix the amount of spousal support, and is to |nbe exercised not arbitrarily or willfully, but with regard to what is just and proper under the facts of the case. Wascom v. Wascom, 97-0547 (La.App. 1 Cir. 6/29/98), 713 So.2d 1271, 1275-76, writ denied, 98-2028 (La. 11/6/98), 728 So.2d 391. The abuse of discretion standard is highly deferential to the trial court’s rulings. See Fin & Feather, LLC v. Plaquemines Par. Gov’t, 2016-0256 (La. App. 4 Cir. 9/28/16), 202 So.3d 1028, 1032. A court necessarily abuses its discretion if its ruling is based on an erroneous view of the law or results from a conclusion reached capriciously or in an arbitrary manner. Fin & Feather, 202 So.3d at 1032.

Assignment of Error 1

In his first assignment of error, Mr. Freeman alleges the trial court erred by failing to determine whether the final spousal support award was actually spousal support, as opposed to child support, prior to calculating the amount of the award. Mr. Freeman argues that his $635.00 per month final spousal support obligation, as ordered by the trial court in the consent judgment of partition of community property, was actually “disguised child support.” Mr. Freeman contends that at the time the consent judgment was signed in April 2014, Ms. Freeman, a teacher’s aide at the school the parties’ minor child attends, was compensated at a lower salary in order to receive a tuition discount for the minor child. As a result, Mr. Freeman alleges the parties reached an agreement that to make up for the difference in her salary, Mr. Freeman would pay $635.00 in what “should have been called extra child support,” but was designated by the trial court as the final spousal support award. Mr. Freeman further argues the fact that the final spousal support award terminates when the parties’ minor child graduates high school is clear evidence that it is “disguised child support.” Mr. Freeman contends that Ms. Freeman filed a rule to increase child support on May 13, 2015, because she decided to forego the tuition discount and receive a higher salary. Mr. Freeman alleges he subsequently filed the motion to terminate spousal support on the basis that the rule to increase child support would result in a “proper calculation” of the child support award and that the final spousal support award, disguised as child support, would no longer be necessary. Mr. |7Freeman ultimately seeks to have the final spousal support award terminated and have the trial court calculate a new award of child support.

The party seeking the modification of support, in this case, Mr. Freeman, carries the burden of proof that a modification is warranted. Vincent, 95 So.3d at 1162. The applicable burden of proof is governed by La. R.S. 9:311(A)(1), which provides that “[a]n award for support shall not be modified unless the party seeking the modification shows a material change in circumstances of one of the parties- between the time of the previous award and the time of the rule for modification of the award.” The moving party must show either a change in the obligee’s needs or the obligor’s ability to pay. Vincent, 95 So.3d at 1162.

At the trial of this matter, Mr. Freeman presented no evidence of any agreement, written or otherwise, to support his argument that the final spousal support award, as ordered by the court in April 9, 2014 consent judgment of partition of community property, was awarded as “disguised child support” intended to “supplement the gap” of Ms. Freeman’s income “shortfall” in order for the parties’ minor child to receive a tuition discount. The fact that the final spousal support award terminates when the parties’ minor child graduates high school does not prove that the award was “disguised child support.” Based on our review of the record, we cannot say the trial court erred in determining that Mr. Freeman failed to carry his burden of proving that there was a material change in circumstances warranting a termination of the final spousal support award. This assignment of error is without merit.

Assignment of Error 2

In his second assignment of error, Mr. Freeman argues the trial court erred in its calculation of the final spousal support award when it failed to examine the assets in Ms. Freeman’s possession—many of which she received in the community property partition—and failed to require her to deplete those assets before receiving final spousal support.

The determination of “sufficient means” is insusceptible of solution by an exact formula or monetary index and should be accomplished by applying the rule of | ¿‘reasonableness in the light of all circumstances,” considering the factors of liquidity of assets, the consequences of liquidation, and the relative financial positions of the parties. Dabney v. Dabney, 603 So.2d 786, 789 (La. App. 1 Cir.), writ denied, 607 So.2d 563 (La. 1992). Liquid assets must be depleted to some extent before a spouse may be entitled to final periodic support; however, a spouse is not required to sell nonliquid assets to support herself. Dabney, 603 So.2d at 789.

We note that the award of final spousal support, awarded by the trial court in the April 9, 2014 consent judgment of partition of community property, necessarily included a finding that Ms. Freeman was in need of support. See Prestenback, 9 So.3d at 175. Furthermore, Mr. Freeman presented no evidence at the trial of this matter that Ms. Freeman’s circumstances materially changed since the trial court awarded final spousal support in the 2014 consent judgment. Accepting the trial court’s estimate of Ms. Freeman’s monthly expenses at $3,118.00, and her monthly income at $2,343.00, she was still left with an approximate $775.00 deficit in meeting her monthly expenses. The record indicates that Ms. Freeman’s liquid and nonliquid assets have remained substantially the same as they were at the time the rule was tried earlier. See Dabney, 603 So.2d at 789. We cannot say the trial court abused its discretion in calculating the final support award and denying the motion to terminate the award. See Bland, 705 So.2d at 1164. This assignment of error is without merit.

Assignment of Error 3

In his third assignment of error, Mr. Freeman argues the trial court erred in its calculation of the final spousal support award when it failed to impute income to Ms. Freeman based on alleged underemployed. Mr. Freeman argues that as a pre-school teacher’s aide, Ms. Freeman only works 170 days per year, even though she is capable of working summers.

Whether a party is voluntary unemployed or underemployed is a question of good faith. Martin, 204 So.3d at 721. Voluntary underemployment is a fact-based determination subject to the manifest error standard of review. Martin, 204 So.3d at 721. The manifest error standard of review is based in part on the trial court’s ability to | ¡¡better evaluate the testimony of live witnesses, compared with an appellate court’s sole reliance upon a written record. Martin, 204 So.3d at 721. When presented with two permissible views of the evidence, the trier of fact’s choice between them cannot be manifestly erroneous. Martin, 204 So.3d at 721.

In calculating Ms. Freeman’s net income, the trial court stated:

The Court" during the testimony has doné an analysis of the income of Mrs. Freeman using her increased income pursuant to her request to the school, which she’s entitled to do, to no longer take the staff discount on-the tuition but to- pay the full tuition and get her full salary. That amount is gross $1,347.50.1 imputed to her $200 a week for the 11 weeks in the summer, which annualized comes out to $185 a month for a total gross income of $1,532.50. [Emphasis added.] -

Although the court did not expressly conclude that Ms; Freeman was voluntarily underemployed, the trial court implicitly found Ms. Freeman to be underemployed when it imputed income to her for 11 weeks during the summer at the rate of $200.00 per week when she could be working. Based on the trial transcript, we find nó abuse in the court’s discretion in its calculation of the final spousal support award. This assignment of error is without merit.

Assignment of Error 4

In his final assignment of error, Mr. Freeman argues the trial court erred in its calculation of the final spousal support award when it disregarded Ms. Freeman’s qualification for an earned income tax credit. Mr. Freeman contends Ms. Freeman’s gross income was reduced by a greater tax rate than she would incur had the earned income credit been factored in.

Prior to the trial of this matter, the hearing officer noted in her conference report dated September 10,2015:

.[Mr. Freeman] also argues that [Ms. Freeman] should be imputed the Earned Income Credit in the amount of $228.00 per month. However, income should not be imputed as it would in a child support computation. In addition, although she may be entitled to the Earned Income Credit in the amount of $228 or more, she does not currently have that income. She did not get that amount in 2013 or 2014. She will have to file an Amended tax return[,] and if she qualifies for the Earned Income Credit, that income may become | ^significant in determining whether the support award should be terminated or modified. [Emphasis added.]

Following an in-chambers conference during the trial’of this matter, counsel for Mr. Freeman indicated that while he would not call his expert witness to testify, the plaintiff would stipulate that the witness “would testify that Mrs. Freeman is entitled to the earned income credit and that the credit would be approximately $275.00 per month, and that she could seek retroactive credit from the IRS for the last three years of approximately $3,000.00 a year, if she amends her returns.”

Addressing Ms. Freeman at the trial of this matter, the trial court stated:

Regardless of what her CPA has said[,] she’s entitled to claim [an earned income' credit], whether she has the dependency deduction or not, so you need to claim it.. .And it’s absolutely you are entitled to [an earned income credit]... I believe that you called [your CPA]. I don’t think you are lying. I’m just telling you that you are entitled to [an earned income credit], and it’s a significant amount of money.. . .

Based on its statements to Ms. Freeman, it is clear the trial court considered the earned income tax credit, as well as the La. C.C. art. 112 factors, in its considr eration of whether a material change in circumstances had occurred to warrant termination of the final spousal support award. Although Ms. Freeman may be entitled to claim an earned income tax credit, she had not yet qualified for, nor had she amended her previous tax returns, to claim the earned income credit at the time Mr. Freeman filed the motion to terminate final spousal support in June 2015. Therefore, we cannot say the trial court abused its discretion in calculating the final spousal support award and denying the motion to terminate spousal support because Mr. Freeman did not present any evidence at trial of a material change in circumstances regarding Ms. Freeman’s tax rate, deduction, or potential credits. This assignment of error is without merit,

DECREE

Based on the foregoing, the January 14, 2016 judgment of the trial court is affirmed. All costs of this appeal are assessed against the plaintiff-appellant, Gary Randall Freeman,

AFFIRMED.

      . At the time of filing, Mr. Freeman’s child support obligation was $1,219.00 per month pursuant to the July 31, 2012 consent judgment. Ms. Freeman also alleged Mr. Freeman had failed to pay his pro-rata share of their minor child's mandatory school fees and extracurricular activities, in violation of the July 31, 2012 consent judgment.


author: HIGGINBOTHAM, J.

text:
    Marsha A. WILLIS v. EAN HOLDINGS dba/Enterprise Rent A Car, ELCO Insurance Group, Inc., Toyota Motor Corporation, and Troy David Thibodaux
    NO. 2016 CA 0473
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: APRIL 12, 2017
    See also 2017 WL 1376595 and 2017 WL 1378268.

      Marsha A. Willis, Baton Rouge, LA, Plaintiff-Appellee, In Proper Person
    David A. Salley, A. Jacob Culotta, Jr., New Orleans, LA, Attorneys for Defendant-Appellee, EAN Holdings, LLC
    Thomas W. Darling, Baton Rouge, LA, Attorney for Defendant-Appellant, Empire Fire & Marine Insurance Co.
    Donna Powe Green, Hattiesburg, MS, Attorney for Defendant-Appellee, Rental Insurance Services, Inc.
    BEFORE: HIGGINBOTHAM, THERIOT, AND CHUTZ, JJ.
   HIGGINBOTHAM, J.

li>Empire Fire and Marine Insurance Company (Empire) appeals the judgment of the trial court ordering Marsha Willis to pay attorney fees, costs, and sanctions to Empire contending that the award was abusively low. Ms. Willis answered the appeal asserting that the trial court abused its discretion in awarding attorney fees to Empire.

FACTS AND PROCEDURAL HISTORY

As set forth in the related appeal, Willis v. EAN Holdings d/b/a Enterprise Rent A Car, 2015-1538 (La. App. 1st Cir. April 12, 2017), 218 So.3d 177, 2017 WL 1376595, Ms. Willis, an attorney representing herself, filed a petition against Empire asserting several causes of action including state law claims of fraud and breach of contract, and federal law claims under the Fourteenth Amendment, as well as civil rights violations under 42 U.S.C.A. § 1985, and equal rights violations under 42 U.S.C.A. § 1981.

On April 7, 2015, Empire filed a motion for summary judgment contending that no genuine issues of material fact exist regarding any of the causes of action Ms. Willig set forth in her petition. Empire’s motion for summaiy judgment was heard by the trial court on June 1, 2015, after which the trial court concluded that Ms. Willis “has no evidence to support any issues of material fact against [Empire]” and “has shown no basis for recovery against [Empire].” On June 16, 2015, a judgment was signed granting Empire’s motion for summary judgment and dismissing Ms. Willis’ claims against Empire with prejudice. Ms. Willis appealed the trial court’s judgment, and in the related appeal also handed down this day, we affirmed the judgment of the trial court. See Willis, 218 So.3d at 663-64.

After the trial court’s grant of summary judgment in favor of Empire, Empire filed a motion for costs, attorney fees, and sanctions as the “prevailing 1¡¡party” under 42 U.S.C.A. §§ 1981 and 1985 and under La. Code Civ. P. art. 863(D). Empire’s motion was heard by the trial court on September 28, 2015. On October 14, 2015, judgment was signed granting Empire’s motion, awarding Empire $801.01 for the court costs Empire incurred as of the date of its motion, and $175.00 for the court costs Empire incurred in -bringing its motion. Additionally, the judgment awarded attorney fees in the amount of $1,000.00 pursuant to 42 U.S.C.A. § 1988(b) and La. Code Civ. P. art. 863(D). It is from this judgment that Empire appeals contending that the trial court abused its discretion in awarding only $1,000.00 in attorney fees. Ms. Willis answered the appeal asserting that the trial- court abused its discretion in awarding attorney fees to Empire.

LAW AND ANALYSIS

Title 42, § 1988(b) of the United States Code allows the trial court, in its discretion, to award a prevailing party reasonable attorney fees and provides in pertinent part: “In any action or proceeding to enforce a provision of sections 1981 ... [and] 1985 ... of this title ... the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.” In this matter, Empire was the prevailing party in Ms. Willis’ § 1981 and § 1985 claims, and the trial court was within its discretion in awarding Empire attorney fees under § 1988.

Louisiana Code of Civil Procedure article 863 provides in pertinent part:

A. Every pleading of a party represented by an attorney shall be signed by at least one attorney of record in his individual name, whose address shall be stated. A party who is not represented by an attorney shall sign his pleading and state his address.'
B. Pleadings need not be verified or accompanied by affidavit or certificate, except as otherwise provided by law, but the signature of an attorney or party shall constitute a certification by him that he has read the pleading, and that to the best of his knowledge, information, 14and belief formed after reasonable inquiry, he certifies all of the following:
(1) The pleading is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation.
(2) Each claim, defense, or other legal assertion in the pleading is warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law.
(3) Each allegation or other factual assertion in the pleading has evidentiary support or, for a specifically identified allegation or factual assertion, is likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.
(4) Each denial in the pleading of a factual assertion is warranted by the evidence or, for a specifically identified denial, is reasonably based on a lack of information or belief.
C. If a pleading is not signed, it shall be stricken unless promptly signed after the omission is called to the attention of the pleader.
D. If, upon motion of any party or upon its own motion, the court determines that a certification has been made in violation of the provisions of this Article, the court shall impose upon the person who made the certification or the represented party, or both, an appropriate sanction which may include an order to pay to the other party the amount of the reasonable expenses incurred because of the filing of the pleading, including reasonable attorney fees.

A trial court’s determination regarding the imposition of sanctions is subject to the manifest error or clearly wrong standard of review. Stroscher v. Stroscher, 2001-2769 (La.App. 1 Cir. 2/14/03), 845 So.2d 518, 526.

In awarding the attorney fees, the trial court stated:

Despite common sense, despite the law, despite definitive judgments from four courts, Ms. Willis continues to believe fervently, apparently, and continues to argue that she has rights under these statutes. I don’t see that there is any way she does, I don’t think any reasonable interpretation of these statutes would lead a reasonable person ... to believe that she has a cause of action.
⅜ ⅜ ⅜
[ SI am going to hold you responsible for all costs incurred by this firm and the sum of $1,000.00 of attorney fees together with all costs associated with bringing these motions.

After review of the record, we agree with the trial court’s conclusion that the claims made by Ms. Willis in her certified petition were not warranted by existing law, nor did the assertions in her pleadings have evidentiary support. Thus, we find no manifest error in the trial court’s imposition of a sanction in the form of the attorney fees against Ms. Willis under La. Code Civ. P. art. 863.

Next, we address Empire’s contention that the trial court’s attorney fee award was abusively low. Empire reasons that Ms. Willis’ claims were entirely baseless and the amount of attorney fees should be amended to award the full amount of fees that Empire has paid in defense of Ms. Willis’ frivolous litigation.

The standard of review for an award of attorney fees under both the federal statute and state law is the same: whether the trial court abused its discretion in determining the. attorney fees award. Under § 1988 the trial court’s award of attorney fees is reviewed for an abuse of discretion. See United States v. State of Mississippi, 921 F.2d 604, 609 (5th Cir. 1991). Additionally, once the state 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, 845 So.2d at 526. Article 863 authorizes an award of “reasonable attorney fees”—but not necessarily actual attorney fees. The goal to be served by imposing sanctions is not wholesale fee shifting, but correction of litigation abuse. Dubois v. Brown, 2001-0816 (La. App. 1 Cir. 5/10/02), 818 So.2d 864, 866, writ denied, 2002-1654 (La. 10/14/02), 827 So.2d 421.

Four factors have evolved that must be considered in arriving at an appropriate sanction award under La. Code Civ. P. art. 863. They are: (1) What Iflconduct is being punished or is sought to be deterred by the sanction? (2) What expenses or costs were caused by the violation of the rule? (3) Were the costs or expenses “reasonable” as opposed to self-imposed, mitigatable, or the result of delay in seeking court intervention? (4) Was the sanction the least severe sanction adequate to achieve the purpose of the rule under which [it] was imposed? Carrollton Presbyterian Church v. Presbytery of S. La. of Presbyterian Church (U.S.A.), 2014-1214 (La.App. 1 Cir. 3/9/15), 172 So.3d 1, 8, writ denied, 2015-0682 (La. 5/22/15), 171 So.3d 257.

Applying these factors to the case before us, we find that the trial court’s award of only $1,000.00 in attorney fees was abusively low. A thorough review of the record revealed that Ms. Willis, a licensed attorney, presented a case against Empire with no basis in law or fact, filed numerous unfounded pleadings, and caused unnecessary litigation. As a result, Empire was forced to expend funds in an effort to defend Ms. Willis’ frivolous claims. Therefore, we increase the award of attorney fees to Empire to $4,500.00.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the trial court awarding attorney fees as sanctions, and costs in favor of Empire Fire and Marine Insurance Company, but amend the judgment of the trial court to increase the amount of attorney fees awarded to $4,500.00. -All costs of the appeal are assessed to Marsha Willis..-.

AFFIRMED AS AMENDED.