text:
    STATE of Louisiana v. Justin Robert SIZEMORE
    No. 2017-KP-0487
    Supreme Court of Louisiana.
    April 16, 2018
    ON SUPERVISORY WRITS TO THE THIRTIETH JUDICIAL DISTRICT COURT, PARISH OF VERNON
   PER CURIAM:

Denied. Relator failed to carry his post-conviction burden of proof. La.C.Cr.P. art. 930.2. The application is also repetitive. La.C.Cr.P. art. 930.4.

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    STATE EX REL. Derrick GARDNER v. STATE of Louisiana
    No. 2018-KH-0327
    Supreme Court of Louisiana.
    April 16, 2018
    ON SUPERVISORY WRITS TO THE TWENTY-SIXTH JUDICIAL DISTRICT COURT, PARISH OF BOSSIER
   PER CURIAM:

WRIT NOT CONSIDERED. Untimely filed pursuant to La.S.Ct.R. X § 5.

Relator has now exhausted the right to obtain post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator has filed an application for post-conviction relief in the district court, and the district court's ruling denying relief is now final. Hereafter, unless relator can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted the right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


author: PER CURIAM CLARK, J., dissenting.

text:
    IN RE: COMMITTEE ON BAR ADMISSIONS CFN-468020
    NO. 2017-BA-0876
    Supreme Court of Louisiana.
    April 16, 2018
    BAR ADMISSIONS PROCEEDING
   PER CURIAM

Petitioner applied to take the Louisiana Bar Examination. However, the Committee on Bar Admissions ("Committee") declined to certify petitioner to take the bar exam, citing her record of academic misconduct, her history of criminal offenses, and her lack of candor in failing to disclose her criminal offenses when she applied to law school. We granted petitioner permission to sit for the exam, with the condition that upon her successful completion of the exam, she apply for the appointment of a commission to take character and fitness evidence.

Upon passing the bar exam, and on petitioner's application to this court, we remanded this matter to the Committee on Bar Admissions Panel on Character and Fitness to conduct an investigation and appointed a commissioner to take character and fitness evidence. Following the proceedings, the commissioner filed his report with this court, recommending that petitioner be admitted to the practice of law. Neither party objected to this recommendation.

Considering the commissioner's recommendation, the absence of any objection from the Committee, and the entire record of this proceeding, we conclude petitioner is eligible to be admitted to the practice of law in Louisiana, subject to the following conditions:

I. The term of this conditional admission shall be for two years from the date of admission. However, petitioner's conditional admission status shall not be terminated until this court so orders.

II. Within thirty days of petitioner's admission, she shall enter into a formal plan with the Office of Disciplinary Counsel ("ODC") incorporating the following conditions:

A. During the period of this conditional admission, petitioner shall attend and successfully complete the Louisiana State Bar Association's Ethics School program.
B. Petitioner shall cooperate with the ODC, and shall comply with any and all requirements imposed upon her by the ODC.

III. Within thirty days prior to the expiration of the conditional admission, the ODC shall file a report in this court in which it shall recommend to the court that the conditional admission be allowed to terminate or be extended.

Should petitioner fail to make a good faith effort to satisfy these conditions, or should she commit any misconduct during the period of probation, her conditional right to practice may be terminated or she may be subjected to other discipline pursuant to the Rules for Lawyer Disciplinary Enforcement.

CONDITIONAL ADMISSION GRANTED.

CLARK, J., would deny admission and assigns reasons.

CRICHTON, J., would deny admission and assigns reasons.

CLARK, J., dissenting.

I dissent and would deny conditional admission.

By granting conditional admission to this applicant, this Court has once again lowered the standards demanded of members of the Bar.

After having first certified to the Southern University Law Center that she had never been arrested for any violation of the law, including arrests which had been expunged, the applicant later admitted to having been arrested and having had a bill of information filed against her for bank fraud and felony theft. Further, applicant was found by the Southern University Law Center to have committed plagiarism by submitting a classmate's schoolwork as her own. Based on the evidence of these three acts (the fraud and theft, the false certification, and the plagiarism), and upon the applicant's less than forthcoming testimony, I do not believe that the applicant has shown by clear and convincing evidence that she possesses the good moral character and fitness to be admitted to the Louisiana Bar.

For these reasons, I would deny the applicant admission to the Bar. At a minimum I would require applicant to appear before this Court to orally argue why she possesses the requisite character and fitness.

Crichton, J., dissents and would deny admission.

Based on the record established by the Committee on Bar Admissions Panel on Character and Fitness, I dissent and would deny admission.

      The applicant was offered a pre-trial diversion program, which she completed. The matter was later expunged.


author: GUIDRY, J., would grant.

text:
    STATE of Louisiana v. Patricia CURRIE
    NO. 2018-KD-0630
    Supreme Court of Louisiana.
    April 21, 2018
    Stay denied. Writ denied.
   GUIDRY, J., would grant.

CLARK, J., would grant.

HUGHES, J., would grant.


text:
    NEEB SERVICE, LLC f/k/a Neeb Service, Inc. v. Norman S. FOSTER, Chief Financial Officer and Director of Finance of the City of New Orleans, Department of Finance, Enroll G. Williams, Assessor, Orleans Parish Assessor, Louisiana Tax Commission
    NO. 2018-C-0336
    Supreme Court of Louisiana.
    April 20, 2018
    Denied.


author: JOHNSON, C.J., recused.

text:
    Ashley Smith SCHULTZ v. The CINCINNATI INDEMNITY COMPANY, et al.
    NO. 2018-CC-0620
    Supreme Court of Louisiana.
    April 20, 2018
    Stay denied; writ denied.
   JOHNSON, C.J., recused.


text:
    In the MATTER OF the Succession of John Robert BISCAMP
    NO. 2017-C-0408
    Supreme Court of Louisiana.
    April 27, 2018
    Denied.
    WEIMER, J., would grant and docket.


author: HUGHES, J., would grant in part.

text:
    STATE of Louisiana v. Peter E. HALEY
    NO. 2017-KO-1230
    Supreme Court of Louisiana.
    April 27, 2018
    Denied.
   HUGHES, J., would grant in part.


author: WEIMER, J., recused.

text:
    STATE of Louisiana v. Elijah Matthews ROBINSON
    NO. 2017-KO-1241
    Supreme Court of Louisiana.
    April 27, 2018
    Denied.
   WEIMER, J., recused.


text:
    STATE of Louisiana v. Seandell KELLY
    NO. 2018-KK-0664
    Supreme Court of Louisiana.
    April 25, 2018
    Stay denied. Writ denied.


text:
    STATE of Louisiana v. Jacoby A. MAIZE
    NO. 2017-KO-1265
    Supreme Court of Louisiana.
    April 27, 2018
    Denied.


text:
    STATE of Louisiana v. Tyrone Joseph BROWN
    NO. 2017-K-1287
    Supreme Court of Louisiana.
    April 27, 2018
    Denied.


text:
    STATE of Louisiana v. Farrell W. WILLIAMS, Jr.
    NO-2017-KO-1332
    Supreme Court of Louisiana.
    April 27, 2018
    Denied.


author: CRICHTON, J., recused.

text:
    STATE of Louisiana v. Lamondre Markes TUCKER
    State of Louisiana v. Alicia Ann Tucker
    NO. 2015-K-1517
    Supreme Court of Louisiana.
    April 27, 2018
    Reconsideration denied.
   CRICHTON, J., recused.


text:
    STATE EX REL. Mark MILLER v. STATE of Louisiana
    NO. 2016-KH-2136
    Supreme Court of Louisiana.
    April 27, 2018
    Denied.


text:
    STATE of Louisiana v. Field CALHOUN
    NO. 2017-KO-1081
    Supreme Court of Louisiana.
    April 27, 2018
    Denied.
   CRICHTON, J., recused.


text:
    STATE of Louisiana v. Denonta THADISON a/k/a Demonta Demarcus Thadison
    NO. 2017-K-1323
    Supreme Court of Louisiana.
    April 27, 2018
    Denied*


author: GENOVESE, J. recused.

text:
    IN RE: EPM TESTAMENTARY LEAD TRUST, Peroxisome Trust and Marshall Heritage Foundation
    NO. 2018-CC-0400
    Supreme Court of Louisiana.
    April 27, 2018
    Denied.
   GENOVESE, J. recused.


text:
    MEDICAL REVIEW PANEL OF BRENT and Susan Reed ON BEHALF OF their Minor Child, Aaron Z. REED v. Robert J. ASCUITTO, Jr., M.D., et al.
    NO. 2018-CC-0610
    Supreme Court of Louisiana.
    April 27, 2018
    Stay denied. Writ denied.


text:
    John DOE v. AVITA DRUGS, LLC (d/b/a Avita Pharmacy ), ABC Insurance Company, and Shavayza V. Portson
    NO. 2018-CC-0406
    Supreme Court of Louisiana.
    April 27, 2018
    Denied.


text:
    William and Imelda WILHITE v. Heath Brian VEILLON
    NO. 2018-CC-0399
    Supreme Court of Louisiana.
    April 27, 2018
    Not considered. Not timely filed. See Supreme Court Rule X, § 5(d).


author: HUGHES, J., would grant.

text:
    JOHN BEGNAUD ELECTRIC MOTORS, INC. v. ALTERNATIVE WELL INTERVENTION, LLC
    HO. 2018-C-0324
    Supreme Court of Louisiana.
    April 27, 2018
    Denied.
   HUGHES, J., would grant.


author: GENOVESE, J., recused.

text:
    Carol AYMOND, Jr. v. Valentina AYMOND
    NO. 2018-CC-0402
    Supreme Court of Louisiana.
    April 27, 2018
    Denied.
   GENOVESE, J., recused.


text:
    STATE EX REL. Mark MILLER v. STATE of Louisiana
    NO. 2017-KH-0203
    Supreme Court of Louisiana.
    April 27, 2018
    Denied.


text:
    IN RE: Appeal of the DECISION OF the DISCIPLINARY BOARD NO. 17-PDB-107
    NO. 2018-OB-0430
    Supreme Court of Louisiana.
    April 27, 2018
    Leave to appeal denied.


text:
    STATE of Louisiana v. Thilero TAPP
    NO. 2017-KP-Q330
    Supreme Court of Louisiana.
    April 27, 2018
    Denied.


text:
    STATE of Louisiana v. Chattley CHESTERFIELD
    NO. 2017-KO-1210
    Supreme Court of Louisiana.
    April 27, 2018
    Denied.


author: WEIMER, J., would grant.

text:
    Oliver RABON v. James SMITHKORS, et al.
    NO. 2018-C-0294
    Supreme Court of Louisiana.
    April 27, 2018
    Denied.
   WEIMER, J., would grant.

GUIDRY, J., would grant.


text:
    Jared DUNAHOE, et ux. v. Nancy Lynn ROGERS
    NO. 2018-CC-0407
    Supreme Court of Louisiana.
    April 27, 2018
    Stay denied. Writ denied.


text:
    STATE EX REL. Ronnie K. HONGO v. STATE of Louisiana
    NO. 2017-KH-0546
    Supreme Court of Louisiana.
    April 27, 2018
    Denied. Relator has previously exhausted his right to state collateral review. See State ex rel. Hongo v. State, 15-0990 (La. 2/26/16), 184 So.3d 1275.


text:
    Ernest BILLIZONE, Sr. v. LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS
    NO. 2017-CI-0179
    Supreme Court of Louisiana.
    April 27, 2018
    Writ not considered* Petitioner has not demonstrated that he sought review in the court below before filing in this Court nor shown the "extraordinary circumstances" that would justify bypassing that level of review. La.S.Ct.R. X § 5(b).


text:
    STATE of Louisiana v. Casey WARREN
    2017-KP-0459
    Supreme Court of Louisiana.
    April 27, 2018
    Denied.


text:
    STATE of Louisiana v. Dernard B. HARRIS
    NO. 2018-KH-0354
    Supreme Court of Louisiana.
    May 11, 2018
    WRIT NOT CONSIDERED. Untimely filed pursuant to La.S.Ct.R. X § 5.


text:
    FANNY FARMS, LLC, Karen M. Meyers and Kendall J. Meyers v. PLAQUEMINES PARISH GOVERNMENT
    NO. 2018-CC-0466
    Supreme Court of Louisiana.
    May 11, 2018
    Denied.


text:
    The LAW OFFICE OF JOHN D. SILEO, LLC v. Deborah KRUSE, Mark Kruse, and the Law Offices of Allan Berger & Associates, PLC
    NO. 2018-C-0469
    Supreme Court of Louisiana.
    May 11, 2018
    Denied.


text:
    STATE of Louisiana v. Richard D. WALKER
    NO. 2018-KH-0497
    Supreme Court of Louisiana.
    May 11, 2018
    WRIT NOT CONSIDERED. Untimely filed pursuant to La.S.Ct.R. X § 5.


text:
    STATE of Louisiana v. Richard Nathaniel MILLER
    NO. 2018-KH-0504
    Supreme Court of Louisiana.
    May 11, 2018
    WRIT NOT CONSIDERED. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the "extraordinary circumstances" that would justify bypassing that level of review. La.S.Ct.R. X § 5(b).


text:
    STATE of Louisiana v. Quendon Mondreill BERNARD
    NO. 2018-KH-0523
    Supreme Court of Louisiana.
    May 11, 2018
    WRIT NOT CONSIDERED. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the "extraordinary circumstances" that would justify bypassing that level of review. La.S.Ct.R. X § 5(b).


text:
    STATE of Louisiana v. Iren COOPER
    NO. 2017-K-1351
    Supreme Court of Louisiana.
    May 11, 2018
    Denied.


text:
    STATE of Louisiana v. Joseph CROSBY, Jr.
    NO. 2018-KH-0362
    Supreme Court of Louisiana.
    May 11, 2018
    WRIT NOT CONSIDERED. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the "extraordinary circumstances" that would justify bypassing that level of review. La.S.Ct.R. X § 5(b).


text:
    Lee CORMIER v. DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS
    NO. 2018-CI-0486
    Supreme Court of Louisiana.
    May 11, 2018
    WRIT NOT CONSIDERED. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the "extraordinary circumstances" that would justify bypassing that level of review. La.S.Ct.R. X § 5(b).


text:
    Gregory J. PERRIERA v. LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS
    NO. 2018-CI-0496
    Supreme Court of Louisiana.
    May 11, 2018
    WRIT NOT CONSIDERED. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the "extraordinary circumstances" that would justify bypassing that level of review. La.S.Ct.R. X § 5(b).


text:
    Emma BRADFORD, et al. v. CITGO PETROLEUM CORPORATION, et al.
    NO. 2018-C-0272
    Supreme Court of Louisiana.
    May 11, 2018
    Denied.


author: GUIDRY, J.

text:
    STATE of Louisiana IN the INTEREST OF M.F.
    State of Louisiana in the Interest of K.N.
    NUMBER 2017 CJ 0545
    Court of Appeal of Louisiana, First Circuit.
    DECEMBER 21, 2017
    Camille A. Morvant II, District Attorney, Anthony P. Lewis, Assistant District Attorney, Thibodaux, LA, Counsel for Appellee, State of Louisiana
    Linda A. Mitchell, Houma, LA, Counsel for Appellee State of Louisiana, Department of Children and Family Services
    Marcia Arceneaux, Houma, LA, Counsel for Appellees, M.F. and K.N.
    Teresa D. King, Houma, LA, Counsel for Appellant, M.N.
    Andrea Cheramie Stentz, Thibodaux, LA, Counsel for Appellant, J.F.
    BEFORE: GUIDRY, PETTIGREW, AND CRAIN, JJ.
   GUIDRY, J.

Parents, whose parental rights were terminated, filed this appeal to challenge the trial court's determination that the State of Louisiana, through the Department of Children and Family Services (DCFS), was not required to attempt to reunify the parents with their children prior to terminating their parental rights.

FACTS AND PROCEDURAL HISTORY

On June 13, 2015, J.F. gave birth to M.F. At the time of M.F.'s birth, J.F. tested positive for cocaine, THC, opiates, and benzodiazepines. M.F. was found to be a drug affected newborn when a subsequent test revealed benzodiazepines in his urine. As a result of M.F.'s drug exposure, DCFS sought and was issued an instanter order to have M.F. placed in DCFS's custody pending further investigation and proceedings. The Seventeenth Judicial District Attorney's Office (DA) later filed a petition seeking to have M.F. adjudicated a child in need of care (CINC petition). Following an answer hearing, during which the court found that the allegations of the petition had been proven by a preponderance of the evidence, the trial court adjudicated M.F. a child in need of care.

On September 3, 2015, the DA amended the CINC petition to identify M.N. as the father of M.F. As M.N. did not participate in the prior answer hearing, a second answer hearing was held at which both J.F. and M.N. appeared. Following the second answer hearing, the trial court again rendered judgment adjudicating M.F. a child in need of care.

Five months after M.F. came into state custody, DCFS sought and was issued an instanter order to have M.F.'s older sibling, K.N., placed in its custody. M.N. was the legal custodian of K.N. at the time DCFS obtained custody of K.N. pursuant to the instanter order. The instanter order placing K.N. in DCFS's custody was issued based on J.F. testing positive in drug screens, J.F. attending parenting classes while under the influence of drugs, and M.N. admitting that he left K.N. in the care of J.F. when he was absent from home for work. The DA later filed a CINC petition to have K.N. adjudicated a child in need of care based on the same grounds, noting in particular that the parenting classes at which J.F. appeared under the influence of drugs were the ones she was required to attend as part of her case plan for M.F. The petition also referenced the fact that J.F. failed a hair follicle drug screen conducted by DCFS on October 9, 2015, when she tested positive for amphetamines, cocaine, methamphetamines, and opiates, and that she failed a urine drug screen ordered by the trial court on October 17, 2015, when she again tested positive for amphetamines, cocaine, methamphetamines, and opiates. At the answer hearing to the CINC petition for K.N., M.N. and J.F. stipulated to K.N. being adjudicated a child in need of care without admitting to the allegations of the petition.

Roughly six months after K.N. came into state custody, DCFS filed a petition seeking to terminate the parental rights of J.F. and M.N. to M.F. and K.N., alleging that J.F. and M.N.'s "parental rights to four siblings of [K.N. and M.F.] were terminated due to neglect or abuse and prior attempts to rehabilitate the parents have been unsuccessful. Despite intervention by the agency, the parents did not rehabilitate." See La. Ch.C. art. 1015(4)(k). Although only a single petition was filed seeking to terminate both parents' parental rights to the children, on August 10, 2016, DCFS made an oral motion in open court (as prompted by the trial court and to which counsel for K.N. and M.F. agreed and counsel for J.F. and M.N. did not object) to consolidate the actions to terminate the parental rights of J.F. and M.N. to K.N. and M.F. Thus, the actions were consolidated.

A hearing on termination of the parental rights of J.F. and M.N. was held on November 14, 2016. Following the hearing, the trial court ordered the parties to file post-trial briefs and took the matter under advisement. The trial court later rendered judgment terminating the parental rights of J.F. and M.N. to K.N. and M.F., based on both parents failing to comply with their case plans-J.F. due to testing positive on drug tests and M.N. due to his work schedule. The court made particular note of its disagreement with M.N.'s belief that it was appropriate and acceptable to leave the children in the care of J.F. during his extended absences from home for work.

Additionally, the court found that the parental rights of J.F. and M.N. had been terminated to one or more of the children's siblings due to neglect or abuse, that prior attempts to rehabilitate them had been unsuccessful, and that current attempts to reunite the children with their parents were not required pursuant to La. Ch.C. art. 672.1. Thus, considering that the children had been consistently maintained for a significant period of time in the same foster home, which family was willing to adopt both children, the court found it in the best interest of the children to terminate the parental rights of J.F. and M.N. An amended judgment terminating the parental rights of J.F. and M.N. was signed by the trial court on February 14, 2017, which both J.F. and M.N. have separately appealed.

DISCUSSION

In every involuntary termination of parental rights case, there are two private interests involved: those of the parents and those of the child. State ex rel. H.A.B., 10-1111, p. 28 (La. 10/19/10), 49 So.3d 345, 366. While a parent's interests undeniably warrant deference, that deference and protection should always bow to the child's countervailing interests, which are deemed to be superior and paramount. See H.A.B., 10-1111 at p. 29, 49 So.3d at 366. Louisiana Children's Code article 1015 provides the statutory grounds by which a court may involuntarily terminate the rights and privileges of parents. In order to terminate a person's parental rights, the court must find the State has established at least one of the statutory grounds contained in Article 1015 by clear and convincing evidence. See La. Ch.C. art. 1035(A). Notwithstanding, even upon finding the State has met its evidentiary burden, a court still should not terminate parental rights unless it determines to do so is in the child's best interest. La. Ch.C. art. 1037(B). Whether termination of parental rights is warranted is a question of fact, and a trial court's factual determinations will not be set aside in the absence of manifest error. H.A.B., 10-1111 at p. 31, 49 So.3d at 368.

In this case, the trial court terminated the parental rights of J.F. and M.N. to M.F. and K.N. pursuant to La. Ch.C. art. 1015(4)(k), which provides the following basis for the termination of parental rights:

(4) Misconduct of the parent toward this child or any other child of the parent or any other child which constitutes extreme abuse, cruel and inhuman treatment, or grossly negligent behavior below a reasonable standard of human decency, including but not limited to the conviction, commission, aiding or abetting, attempting, conspiring, or soliciting to commit any of the following:
...
(k) The parent's parental rights to one or more of the child's siblings have been terminated due to neglect or abuse, prior attempts to rehabilitate the parent have been unsuccessful, and the court has determined pursuant to Article 672.1, that current attempts to reunite the family are not required.

On appeal, both J.F. and M.N. acknowledge that three conditions are required to be met in order for a person's parental rights to be terminated under Article 1015(4)(k) ; however, in their briefs to this court, J.F. asserts that the evidence in the record is insufficient to establish the third condition of Article 1015(4)(k), whereas M.N. asserts that, at least as to him, DCFS failed to prove any of conditions recited in Article 1015(4)(k). Accordingly, we will review the record relative to each condition.

Condition 1: The parent's rights to one or more of the child's siblings have been terminated due to neglect or abuse.

As to this condition, M.N. acknowledges that DCFS introduced a copy of the judgment terminating his parental rights, and he does not dispute the fact that his parental rights to the siblings of M.F. and K.N. were terminated. Instead, he argues that the evidence presented fails to establish that his parental rights were terminated due to neglect or abuse. In particular, he points out that the prior termination judgment "does not provide specific findings of fact, nor does it specify why the parental rights of M.N. were terminated as to his other children. M.N. further argues in brief that:

Alexis Johnson, case worker for the Department of Children and Family Services, testified that the previous case was similar to the present case in that M.N.'s work schedule prevented him from completing his case plan. Ms. Johnson offered no testimony regarding M.N.'s neglect or abuse of his older children. When asked whether there have been allegations of neglect or abuse, she answered "no," as it pertains to M.N. [Footnotes omitted.]

Ms. Johnson testified that although she was not involved in the prior case, she found the prior case to be similar to the present case involving M.F. and K.N. based on her review of the record from the prior case. In particular, she mentioned that M.N. missed visits with the children due to work. As she explained, M.N. was not available as a caretaker for M.F. and K.N. because he works on the boat a lot. She said the same problem existed in the prior case.

The record from the prior case (consisting of minute entries, pleadings, hearing notices, case plans, reports from the Court-Appointed Special Advocate (CASA) and DCFS, as well as orders and judgments issued by the trial court) was introduced into evidence in the proceedings below. That prior record reveals that on December 7, 2016, an instanter order was issued placing four of M.F. and K.N.'s older siblings (A.N., Mi.N., P.N., and M.K.F.) into DCFS custody as a result of J.F. being arrested on December 2, 2006, for driving while under the influence (DUI) of drugs with the four children riding unrestrained in the vehicle. On December 4, 2007, the children were returned to the custody of J.F. and M.N., subject to supervision by DCFS for a period of six months. But on February 12, 2008, J.F. was arrested for her fifth DUI. In that incident, she again had all of her children in the vehicle, including her son M.D.F., who was born in May 2007. As a result of that incident, all of the children, including M.D.F., were placed in the custody of DCFS.

On April 27, 2010, DCFS filed a petition to terminate the parental rights J.F. and M.N. to A.N., P.N., M.K.F., and M.D.F., under Article 1015, sections (3), (4), and/or (5). In the petition, DCFS alleged M.N.

had abandoned his children by leaving them under circumstances that demonstrated an intention to permanently avoid responsibility by failing to provide significant contributions to the children's care and support for six consecutive months and failing to comply with or complete his case plan. In particular, DCFS alleged that at the time of the filing of the petition, M.N.'s whereabouts were unknown and that M.N. failed to update the agency as to his whereabouts, which was a barrier to his providing for the ongoing daily need for safe and stable housing for his children.

Separate hearings were eventually held to terminate the parental rights of J.F. and M.N. to the four children. At a hearing held on July 2, 2010, J.F. consented to the judgment terminating her parental rights in accordance with Article 1015. The hearing to terminate M.N.'s parental rights was held on August 16, 2010, but according to the minute entry for that hearing, M.N., who was represented by private counsel, waived his appearance. The minute entry recites that evidence was offered by DCFS, and specifically notes that a DCFS case manager testified at the hearing. However, no evidence was offered in M.N.'s defense, and his parental rights were terminated.

Thus, while the August 17, 2010 judgment does not expressly recite that M.N.'s parental rights were terminated due to neglect or abuse, the prior record submitted to the trial court in the instant matter clearly establishes that M.N.'s habitual absences from the home, for work or otherwise, while leaving the children in J.F.'s care, as well as his failure to pay any substantial financial support for the children, were acts of neglect. Moreover, such was expressly alleged in the petition seeking to terminate M.N.'s parental rights.

Finally, M.N.'s frequent absences, failure to pay child support, and failure to complete his case plan was amply documented by DCFS, a representative of which testified at M.N.'s termination hearing. Thus, we find no manifest error in the trial court's determination that M.N.'s parental rights to the siblings of M.F. and K.N. (A.N., P.N., M.K.F., and M.D.F.) were terminated due to neglect.

Condition 2: Prior attempts to rehabilitate the parents have been unsuccessful.

Likewise, we find no manifest error in the trial court's determination that prior attempts to rehabilitate were unsuccessful. Just as in the prior proceedings, in the instant matter, M.N.'s case plan required his participation in counseling classes and to be a caretaker in the home; however, due to M.N.'s work schedule, he was not available for either. At the termination hearing, Ms. Johnson stated that DCFS does not expect someone to quit his or her job, but it does expect a parent to be available when there is a need for that parent in the home, and M.N. was not. She said the same problem existed in the prior case. She also stated that M.N. failed to maintain contact with DCFS and that he did not participate in the parenting classes he was required to attend as part of his case plan because the coordinators of the classes "couldn't contact him because he was working."

M.N., himself, acknowledged that he had been informed that there were things he needed to do to get his other children back, but he said due to the fact that he was a fisherman, "I do not have the time and the energy to be at home and proceed with all the requirements of what they have asked me to do." And regarding leaving the children in J.F.'s care, despite knowing there had been multiple drugs tests showing that J.F. was using drugs illegally, M.N. stated:

I don't know what the office of child welfare sees in my girlfriend. But as far as I can see-living with her and seeing her taking care of the children-the way I see it, I don't understand the reason behind it because she is an outstanding mother, outstanding, taking care of our kids, taking care of the house. And I don't know what the State is looking at, what they are looking at with my girlfriend.
...
I work-I do understand I work a lot. And I fully understand also the fact that I have a wonderful mother of my children at home taking care of them that I don't see no danger with the children living with her.

Hence, the evidence in the record before us amply supports the trial court's determination that prior attempts to rehabilitate have been unsuccessful, and thus, we find no manifest error in the trial court's determination.

Condition 3: The court has determined, pursuant to Article 672.1, that current attempts to reunite the family are not required.

Next, we must consider whether the trial court properly applied La. Ch.C. art. 672.1 to decree that the parental rights of J.F. and M.N. should be terminated. That statute provides:

A. At any time in a child in need of care proceeding when a child is in the custody of the department, the department may file a motion for a judicial determination that efforts to reunify the parent and child are not required.
B. The department shall have the burden of demonstrating by clear and convincing evidence that reunification efforts are not required, considering the health and safety of the child and the child's need for permanency.
C. Efforts to reunify the parent and child are not required if a court of competent jurisdiction has determined that:
(1) The parent has subjected the child to egregious conduct or conditions, including but not limited to any of the grounds for certification for adoption pursuant to Article 1015.
(2) The parent has committed murder or manslaughter of another child of the parent or any other child or has aided or abetted, attempted, conspired, or solicited to commit such a murder or manslaughter.
(3) The parent has committed a felony that results in serious bodily injury to the child or another child of the parent or any other child.
(4) The parental rights of the parent to a sibling have been terminated involuntarily.
D. If the court determines that reunification efforts are not required, it shall document that determination by written findings of fact. A permanency hearing, which considers in-state and out-of-state permanent placement options for the child, may be conducted
immediately and shall be conducted within thirty days after the determination. [Emphasis added.]

The language of Article 672.1(A) is permissive, and jurisprudence has recognized, that it is not mandatory that DCFS file a motion for a judicial determination that efforts to reunify the child and parent are not required; rather, the statute allows DCFS discretion to seek such a determination if it so desires. SeeState in the Interest of M.B., 12-547, p. 10 (La. App. 5th Cir. 1/30/13), 108 So.3d 1237, 1243 ; State ex rel. H.M. v. T.M., 44,446, p. 7 (La. App. 2d Cir. 5/6/09), 12 So.3d 409, 414. As recognized in annotations to the statute, such a motion may be warranted in circumstances where "reunification is likely to be a futile exercise, further damaging the child," such as "when the parent has committed a felony assault causing serious bodily injury to the child or sibling; committed or attempted murder or voluntary manslaughter of a sibling; aggravated circumstances including abandonment, torture, chronic abuse or sexual abuse; or if the parental rights to a sibling have been terminated involuntarily." See La. Ch.C. art. 672.1, 1999 Comments.

However, in the instant case, rather than seeking such a determination by the trial court, the record reveals that DCFS engaged in reunification efforts. Therefore, the record demonstrates that it was not the goal of DCFS to be allowed to dispense with reunification efforts. Instead, DCFS changed course to proceed under Article 1015 to terminate the parental rights of J.F. and M.N. with the goal of adoption only after J.F. and M.N. failed to comply with their case plans. As such, we find the trial court correctly determined that DCFS was not required to file a motion seeking a judicial determination that reunification efforts were not required. See State ex rel. R.L.T. and S.A.T., 45,168, p. 6 (La. App. 2d Cir. 1/27/10), 30 So.3d 1085, 1089.

We further find that the trial court correctly determined that it was not precluded, in the absence of a motion by DCFS, from nevertheless determining that reunification efforts were not required pursuant Article 672.1, as Article 1015(4)(k) plainly directs the court to make such a determination. Notably, Article 1015(4)(k) does not direct DCFS to file a motion seeking a reunification determination under Article 672.1, but instead, simply directs the court to make the determination. The grounds for determining that reunification efforts are not required are found in subsection (C) of Article 672.1. As previously discussed herein, the record clearly establishes that the parental rights of J.F. and M.N. to four of M.F. and K.N.'s siblings were terminated involuntarily, which supports the determination that reunification efforts were not required pursuant to Article 672.1(C)(4). Hence, we find no error in the trial court's determination that reunification efforts were not required in fulfillment of the third condition of Article 1015(4)(k).

Finally, while not assigned as error, M.N. does briefly argue on appeal that the trial court incorrectly found that it would be in the best interest of the children to terminate his parental rights. In support of this argument, M.N. erroneously asserts that DCFS did not present any evidence of the familial ties between M.N. and his children. Ms. Johnson testified that M.N. was not available to visit with his children in person, but would participate in scheduled visitation through telephone calls. As previously discussed, M.F. was taken into DCFS custody at birth, and K.N. entered DCFS custody roughly five months later. During the time preceding termination of his parental rights, the DCFS reports that appear in the record indicate that M.N. attended only one family visit. More importantly, as recognized by the trial court in its reasons for judgment, the children had been together in the same foster home for a significant period of time, the foster placement had been beneficial to the children's development, and the foster family was willing to adopt the children together. The record, particularly the reports from CASA and DCFS contained in the record, support these findings by the trial court. Accordingly, we find the trial court was not clearly wrong in finding that it was in the best interest of the children to terminate the parental rights of J.F. and M.N.

CONCLUSION

Hence, after carefully and thoroughly considering the record before us and applying the applicable law, we affirm the judgment of the trial court terminating the parental rights of J.F. and M.N. to M.F. and K.N. All costs of this appeal are cast to the appellants, J.F. and M.N.

AFFIRMED.

      The children and their parents are referred to by their initials to preserve their anonymity in this confidential proceeding. See La. Ch. C. art. 1007(A). The father is referred to as M.N. and the mother J.F. The underlying proceedings and the judgment appealed involve the minor children, M.F. and K.N.; however, earlier proceedings involving their siblings A.N., Mi.N., P.N., M.K.F. and M.D.F., are relevant to this matter.

      M.N. worked on a boat as fisherman, and in that occupation, he would be away from home twenty days at a time.

      According to the Louisiana Children's Code, a case plan detailing what efforts will be made by DCFS toward achieving a permanent placement of a child must be developed within sixty days of a child entering DCFS's custody and must include, among other things, a provision for services to the parents to assist parents in removing the obstacles of reunification, at least as long as the child's permanent plan is reunification. See La. Ch. C. arts. 673 and 675(B)(2) ; State in Interest of D.B.A., 50,412, p. 7 (La. App. 2d Cir. 2/24/16), 190 So.3d 316, 321. An initial case plan, dated August 24, 2015 (when DCFS only had custody of M.F.), provided a goal of reunification with a concurrent plan of adoption. The next case plan, dated November 23, 2015, at which time DCFS had custody of M.F. and K.N., maintained a goal of reunification with a concurrent plan of adoption. However, in the case plan dated February 4, 2016, the goal for both children was changed to simply adoption.

      Article 1015 of the Louisiana Children's Code was amended in 2016, after the petition for termination was filed, which amendment, in part, resulted in the renumbering of La. Ch.C. art. 1015(3)(k) to La. Ch.C. art. 1015(4)(k). See 2016 La. Acts, No. 608, § 1. The petition to terminate the parental rights of J.F. and M.N. cited to the former numbering of the article. As no other change was made to the provision at issue, and since the parties refer to the current numbering of the provision in their briefs, we will refer to the provision as La. Ch.C. art. 1015(4)(k) in our discussion herein.

      See La. C.C.P. art. 1561.

      The record contains an original judgment signed by the trial court on February 7, 2015, as well as the amended judgment, signed on February 14, 2017, in which the only difference appears to be the addition of the underlined text in the following sentence quoted from the amended judgment: "The court specifically rules that a 672.1 hearing was not necessary prior to the termination hearing and hereby makes a 672.1 ruling that efforts to reunify the parents are not required by the department."
      Although the record contains no explanation of what prompted the amendment of the February 7, 2017 judgment, we recognize that a final judgment may be amended at any time to alter the phraseology of the judgment, but not its substance. See La. C.C.P. art. 1951.

      See La. Ch.C. arts. 424, 424.1, 424.3, and 424.7.

      At that time, DCFS was referred to as the Office of Community Services within the Louisiana Department of Social Services; however, pursuant to 2010 La. Acts, No. 877, § 3, the Louisiana Legislature directed the Louisiana Law Institute "to change all references to the 'Department of Social Services' to the 'Department of Children and Family Services' and all references to either the 'office of community services' or 'the office of family support' to the 'office of children and family services' throughout the Louisiana Revised Statutes of 1950." Although this change was not made effective until July 1, 2010, for ease of discussion and understanding, we shall simply refer to the agency as DCFS in our discussion of the prior proceedings.

      An August 30, 2007 CASA report contained in the prior record reveals that M.N. was not the biological father of Mi.N. MiN's father was eventually identified by DCFS. Mi.N.'s father later made contact with DCFS in May 2008, and ultimately obtained full legal custody of Mi.N.

      At that time, the identified sections of Article 1015 provided, in pertinent part:
      The grounds for termination of parental rights are:
      (3) Misconduct of the parent toward this child or any other child of the parent or any other child in his household which constitutes extreme abuse, cruel and inhuman treatment, or grossly negligent behavior below a reasonable standard of human decency, including but not limited to the conviction, commission, aiding or abetting, attempting, conspiring, or soliciting to commit any of the following:
      ...
      (i) Abuse or neglect which is chronic, life threatening, or results in gravely disabling physical or psychological injury or disfigurement.
      (j) Abuse or neglect after the child is returned to the parent's care and custody while under department supervision, when the child had previously been removed for his safety from the parent pursuant to a disposition judgment in a child in need of care proceeding.
      ...
      (4) Abandonment of the child by placing him in the physical custody of a nonparent, or the department, or by otherwise leaving him under circumstances demonstrating an intention to permanently avoid parental responsibility by any of the following:
      ...
      (b) As of the time the petition is filed, the parent has failed to provide significant contributions to the child's care and support for any period of six consecutive months.
      ...
      (5) Unless sooner permitted by the court, at least one year has elapsed since a child was removed from the parent's custody pursuant to a court order; there has been no substantial parental compliance with a case plan for services which has been previously filed by the department and approved by the court as necessary for the safe return of the child; and despite earlier intervention, there is no reasonable expectation of significant improvement in the parent's condition or conduct in the near future, considering the child's age and his need for a safe, stable, and permanent home.

      There are no transcripts of any proceedings contained in the prior record.

      The prior record reveals that on at least two occasions, M.N. went to Vietnam and stayed for months before returning.

      So long as the facts constituting the claim or defense have been alleged and proved, the party may be granted any relief to which he is entitled under the fact pleadings and evidence, when the due process requirement of adequate notice to the parties of the matters to be adjudicated has been satisfied. Miller v. Thibeaux, 14-1107, p. 8 (La. 1/28/15), 159 So.3d 426, 432.

      The fact that J.F. consented to the judgment terminating her parental rights to M.F. and K.N.'s siblings does not change the nature of the proceedings from being "involuntary." See State in the Interest of S.R., 12-0812 (La. App. 1st Cir. 12/31/12), 112 So.3d 264.


author: PER CURIAM. CALLOWAY, J., dissenting.

text:
    Robert J. "Bobby" CROWE, Sheriff of Washington Parish v. BIO-MEDICAL APPLICATION OF LOUISIANA, LLC
    Robert J. "Bobby" Crowe, Sheriff of Washington Parish v. Amerisourcebergen Drug Corporation
    NUMBER 2014 CA 0919 NUMBER 2014 CA 0920
    Court of Appeal of Louisiana, First Circuit.
    FEBRUARY 17, 2017 Rehearing Denied February 17, 2017
    Robert R. Rainer, Drew M. Talbot, Baton Rouge, LA, and Margaret H. Kern, Covington, LA, and Russell J. Stutes, Lake Charles, LA, Counsel for Plaintiff/Appellee, Sheriff of Washington Parish
    Jesse R. Adams, III, Andre B. Burvant, Matthew A. Mantle, New Orleans, LA, Counsel for Defendant/Appellant, AmerisourceBergen Drug Corporation and Counsel for Defendant, Bio-Medical Application of Louisiana
    BEFORE: WHIPPLE, C.J., WELCH, HOLDRIDGE, CHUTZ, AND CALLOWAY JJ.
    ON REHEARING

      Judge Curtis Calloway, retired, is serving as judge pro tempore by order of the Louisiana Supreme Court.

   PER CURIAM.

After consideration of this matter on rehearing, the court maintains its original June 3, 2016 opinion, which affirmed the district court's September 9, 2013 judgment granting in part the Washington Parish Sheriff's motion for summary judgment, declaring that AmerisourceBergen Drug Corporation is not entitled to a sales tax exclusion under LSA-R.S. 47:301(10)(u), a sales tax exemption under LSA-R.S. 47:337.9(F), or a sales tax refund under LSA-R.S. 47:315.3 for the drug purchases at issue herein, and dismissing AmerisourceBergen Drug Corporation's reconventional demand with prejudice.

Calloway, J. dissent with reasons

Chutz J. concurs with reasons by JEW

Holdridge J. dissents for the reasons assigned by Judge Calloway

CHUTZ, J., concurs in the denial of the rehearing and assigns reasons.

I disagree with the plurality to the extent it holds that the purchases by AmerisourceBergen Drug Corporation (ABC) of certain prescription drugs for administration to Medicare patients at its kidney dialysis facility did not involve "sales made under the provisions of Medicare" within the meaning of the local sales tax exclusion pursuant to La. R.S. 47:301(10)(u) ; and that ABC's purchases of certain prescription drugs for those Medicare patients was not "through or pursuant to a Medicare Part B and D plan" as required to qualify for the local sales tax exemption under La. R.S. 47:337.9(F). Although La. R.S. 47:301(10)(u) clearly and unambiguously excludes from local taxation the sales of tangible property made "under the provisions of Medicare"; and La. R.S. 47:337.9(F) clearly exempts prescription drugs "purchased through or pursuant to a Medicare Part B or D plan," because this record is devoid of evidence from which the actual amount of tangible property excluded and/or exempted from local sales tax may be calculated, I concur in the result that affirms the trial court's judgment which concludes ABC is not entitled to relief.

In support of his motion for summary judgment, the Sheriff offered evidence which showed ABC does not separately store or segregate the drugs it administers to Medicare patients from those that it administers to non-Medicare patients. In response to this showing, ABC suggested the value of its refund claim is determinable by dividing the number of dialysis treatments rendered to Medicare patients by the total number of dialysis treatments rendered at the kidney dialysisfacility and then requested a refund of taxes on the sales of prescription drugs in the same percentage. But this calculation was not supported by the evidence in the record which showed that patients are not administered the same medicines in the same doses. ABC's offered estimate, therefore, was insufficient to create a genuine issue of material fact.

The Sheriff established that ABC was unable to produce evidence from which to calculate the value of sales excluded from local taxation under La. R.S. 47:301(10)(u) ; or the actual amount of prescription drugs it purchased "through or pursuant to a Medicare Part B or D plan" so as to permit an exemption from payment of local sales taxation pursuant to La. R.S. 47:337.9(F). Accordingly, in light of the evidence presented in support of summary judgment, the trial court correctly granted declaratory relief in favor of the Sheriff and dismissed ABC's reconventional demand.

CALLOWAY, J., dissenting.

The statutes involved herein- La. R.S. 47:301(10)(u), La. R.S. 47:337.9(F), and La. R.S. 47:315.3 -provide for the exclusion, exemption, and refund of local sales taxes of personal, tangible property "made under the provisions of Medicare," provided the ultimate "end user" of the property-here, prescription drugs administered to patients receiving dialysis treatment-is a Medicare patient. I disagree with the plurality's opinion which holds the aforementioned statutes do not apply to bulk drug transactions between a pharmaceutical vendor and a dialysis clinic at issue in this case. Specifically, I disagree that the sales by AmerisourceBergen Drug Corporation ("ABC") of certain prescription drugs for administration to Medicare patients at Bio-Medical Applications of Louisiana, L.L.C.'s ("Bio-Medical") kidney dialysis facility did not involve sales of personal, tangible property "made under the provisions of Medicare," and would not be excluded from local sales under La. R.S. 47:301(10)(u). Additionally, I disagree with the plurality's opinion that ABC's sales of certain prescription drugs for those Medicare patients was not "through or pursuant to a Medicare part B or D plan," and would not be exempted from local sales tax under La. R.S. 47:337.9(F)

Furthermore, I find there are genuine issues of material fact regarding: (i) the value of sales which could be excluded from local taxation under La. R.S. 47:301(10)(u) ; and (ii) the actual amount of prescription drugs sold by ABC and purchased by Bio-Medical "through or pursuant to a Medicare Part B or D plan" so as to permit an exemption from payment of local sales taxation pursuant to La. R.S. 47:337.9(F). It is my opinion, therefore, that summary judgment should not have been granted in favor of the Sheriff.

I therefore disagree with the plurality's opinion, affirming the trial court's grant, in part, of the Washington Parish Sheriff's motion for summary judgment, declaring that ABC was not entitled to a sales tax exclusion, exemption, or refund under the aforementioned statutes for the drug purchases at issue herein, denying ABC's motion for partial summary judgment, and dismissing ABC's reconventional demand for declaratory judgment relief. I must respectfully dissent from the plurality's opinion.

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


author: PER CURIAM. WELCH, J. concurring. CALLOWAY, J., dissenting.

text:
    Robert J. "Bobby" CROWE, Sheriff of Washington Parish v. BIO-MEDICAL APPLICATION OF LOUISIANA, LLC
    Robert J. "Bobby" Crowe, Sheriff of Washington Parish v. AmerisourceBergen Drug Corporation
    NUMBER 2014 CA 0917 NUMBER 2014 CA 0918
    Court of Appeal of Louisiana, First Circuit.
    FEBRUARY 17, 2017 Rehearing Denied February 17, 2017
    Robert R. Rainer, Drew M. Talbot, Baton Rouge, LA, and Margaret H. Kern, Covington, LA, and Russell J. Stutes, Lake Charles, LA, Counsel for Plaintiff/Appellee, Sheriff of Washington Parish
    Jesse R. Adams, III, Andre B. Burvant, Matthew A. Mantle, New Orleans, LA, Counsel for Defendant/Appellant, Bio-Medical Application of Louisiana and Counsel for Defendant, AmerisourceBergen Drug Corporation
    BEFORE: WHIPPLE, C.J., WELCH, HOLDRIDGE, CHUTZ, AND CALLOWAY JJ.
    ON REHEARING

      Judge Curtis Calloway, retired, is serving as judge pro tempore by order of the Louisiana Supreme Court.

   PER CURIAM.

After consideration of this matter on rehearing, the court maintains its original June 3, 2016 opinion, which affirmed the district court's September 9, 2013 judgment granting in part the Washington Parish Sheriff's motion for summary judgment, declaring that Bio-Medical Applications of Louisiana, LLC, was not entitled to a sales tax exclusion under LSA-R.S. 47:301(10)(u), a sales tax exemption under LSA-R.S. 47:337.9(F), or a sales tax refund under LSA-R.S. 47:315.3 for the drug purchases at issue herein, and dismissing Bio-Medical's reconventional demand with prejudice.

Calloway, J. dissent with reasons

Welch J. concurs with reasons assigned

Chutz J. concurs with reasons by JEW

Holdridge J. dissents for reason assigned by Judge Calloway

WELCH, J. concurring.

While I agree with the majority opinion, I write separately to point out that the result in this case would have been different if the dialysis clinic purchased the prescription drugs intended for its Medicare Part B and D patients separately from the prescription drugs it purchased for its non-Medicare patients. See La. R.S. 47:337.9(F).

Thus, I respectfully concur.

CHUTZ, J., concurs in the denial of the rehearing and assigns reasons.

I disagree with the plurality to the extent it holds that the purchases by Bio-Medical Applications of Louisiana, LLC

(Bio-Medical) of certain prescription drugs for administration to Medicare patients at its kidney dialysis facility did not involve "sales made under the provisions of Medicare" within the meaning of the local sales tax exclusion pursuant to La. R.S. 47:301(10)(u) ; and that Bio-Medical's purchases of certain prescription drugs for those Medicare patients was not "through or pursuant to a Medicare Part B and D plan" as required to qualify for the local sales tax exemption under La. R.S. 47:337.9(F). Although La. R.S. 47:301(10)(u) clearly and unambiguously excludes from local taxation the sales of tangible property made "under the provisions of Medicare"; and La. R.S. 47:337.9(F) clearly exempts prescription drugs "purchased through or pursuant to a Medicare Part B or D plan," because this record is devoid of evidence from which the actual amount of tangible property excluded and/or exempted from local sales tax may be calculated, I concur in the result that affirms the trial court's judgment which concludes Bio-Medical is not entitled to relief.

In support of his motion for summary judgment, the Sheriff offered evidence which showed Bio-Medical does not separately store or segregate the drugs it administers to Medicare patients from those that it administers to non-Medicare patients. In response to this showing, as noted by the plurality, Bio-Medical suggested the value of its refund claim is determinable by dividing the number of dialysis treatments rendered to Medicare patients by the total number of dialysis treatments rendered at the kidney dialysis facility and then requested a refund of taxes on the sales of prescription drugs in the same percentage. But this calculation was not supported by the evidence in the record which showed that patients are not administered the same medicines in the same doses. Bio-Medical's offered estimate, therefore, was insufficient to create a genuine issue of material fact.

The Sheriff established that Bio-Medical was unable to produce evidence from which to calculate the value of sales excluded from local taxation under La. R.S. 47:301(10)(u) ; or the actual amount of prescription drugs it purchased "through or pursuant to a Medicare Part B or D plan" so as to permit an exemption from payment of local sales taxation pursuant to La. R.S. 47:337.9(F). Accordingly, in light of the evidence presented in support of summary judgment, the trial court correctly granted declaratory relief in favor of the Sheriff and dismissed Bio-Medical's reconventional demand.

CALLOWAY, J., dissenting.

The statutes involved herein-La. R.S. 47:30l(10)(u), La. R.S. 47:337.9(F), and La. R.S. 47:315.3 -provide for the exclusion, exemption, and refund of local sales taxes of personal, tangible property "made under the provisions of Medicare," provided the ultimate "end user" of the property-here, prescription drugs administered to patients receiving dialysis treatment-is a Medicare patient. I disagree with the plurality's opinion which holds the aforementioned statutes do not apply to bulk drug transactions between a pharmaceutical vendor and a dialysis clinic at issue in this case. Specifically, I disagree that the purchases by Bio-Medical Applications of Louisiana, L.L.C. ("Bio-Medical") of certain prescription drugs for administration to Medicare patients at its kidney dialysis facility did not involve sales of personal, tangible property "made under the provisions of Medicare," and would not be excluded from local sales under La. R.S. 47:301(10)(u). Additionally, I disagree with the plurality's opinion that Bio-Medical's purchases of certain prescription drugs for those Medicare patients was not "through or pursuant to a Medicare part B or D plan," and would not be exempted from local sales tax under La. R.S. 47:337.9(F)

Furthermore, I find there are genuine issues of material fact regarding: (i) the value of sales which could be excluded from local taxation under La. R.S. 47:301(10)(u) ; and (ii) the actual amount of prescription drugs purchased by Bio-Medical "through or pursuant to a Medicare Part B or D plan" so as to qualify for an exemption from payment of local sales taxation pursuant to La. R.S. 47:337.9(F). It is my opinion, therefore, that summary judgment should not have been granted in favor of the Sheriff.

I therefore disagree with the plurality's opinion, affirming the trial court's grant, in part, of the Washington Parish Sheriff's motion for summary judgment, declaring that Bio-Medical was not entitled to a sales tax exclusion, exemption, or refund under the aforementioned statutes for the drug purchases at issue herein, denying Bio-Medical's motion for partial summary judgment, and dismissing Bio-Medical's reconventional demand for declaratory judgment relief. I must respectfully dissent from the plurality's opinion.

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


author: CHUTZ, J.

text:
    Clarence E. WATTS, Jr. v. Donna Renee WATTS
    2017 CA 0369
    Court of Appeal of Louisiana, First Circuit.
    DECEMBER 29, 2017
    Jenel G. Secrease, Jay Michael Futrell, Ponchatoula, Louisiana, Counsel for Plaintiff-Appellee, Clarence E. Watts, Jr.
    John Oliver Braud, Brenda Braud, Hammond, Louisiana, Counsel for Defendant-Appellant, Donna Renee Watts
    BEFORE: WHIPPLE, C.J., McDONALD AND CHUTZ, JJ.
   CHUTZ, J.

Defendant-appellant, Donna "Renee" Watts, appeals the trial court's judgment denying her claim for revocation of an inter vivos donation of immovable property. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Renee and Sonny divorced after approximately nine years of marriage. As a result of a consent judgment, Renee was awarded the house, located at 12180 Marilyn Lane in Hammond, Louisiana. On December 6, 2006, the parties remarried. It is undisputed that the Marilyn Lane residence, which was Renee's separate property, then became the couple's matrimonial domicile. On September 4, 2009, Renee donated the Marilyn Lane residence to Sonny.

On November 4, 2015, Sonny filed a petition for divorce in which he requested exclusive use of the Marilyn Lane residence. Renee answered the lawsuit, also requesting exclusive use of the matrimonial domicile. Renee subsequently filed a petition to revoke the September 4, 2009 donation, citing ingratitude.

Despite the pending divorce, both parties continued to reside in the home. On February 22, 2016, Sonny amended his petition, averring that the Marilyn Lane residence was his separate property by virtue of the September 4, 2009 donation. Sonny also moved to have Renee either evicted from or ordered to vacate the residence.

After a hearing, the trial court signed a judgment on April 18, 2016, ordering Renee "to vacate [Sonny's] separate property." Renee filed a motion for new trial. She also amended her petition for revocation in order to include an allegation that the judgment in Sonny's favor constituted an additional act of ingratitude, further warranting revocation of the September 4, 2009 donation.

A hearing was held on June 1, 2016, on Renee's claim for revocation of the September 4, 2009 donation. During the presentation of rebuttal evidence, Renee raised the issue of whether the donation was invalid for failure to comply with the form mandated for interspousal donations as set forth in La. C.C. Art. 1747.

The trial court continued the hearing to allow the parties to conduct further discovery and prepare a defense. On June 23, 2016, the matter was concluded. The trial court rendered judgment on August 30, 2016, denying Renee's claim for revocation of the donation as well as her motion for new trial of the April 18, 2017 judgment. Renee appeals.

VALIDITY OF THE DONATION

Renee avers the donation inter vivos she and Sonny executed was deficient in form. Specifically, she contends the parties did not sign the document as required by La. C.C. art. 1747 for interspousal inter vivos donations.

La. C.C. art. 1747 provides in part:

The donation shall be made by a single instrument in authentic form. The instrument, which shall expressly state that the donor makes the donation in contemplation of his prospective marriage or in consideration of his present marriage, as the case may be, shall be signed at the same time and at the same place by the donor and by the donee.

Renee maintains that because the undisputed evidence in the record establishes the parties did not sign the September 4, 2009 donation at the same time and in the same place, the donation is invalid.

We first note that the donation inter vivos executed by the parties on September 9, 2004, expressly stated that Renee donated the property to Sonny "in consideration of the love and affection" she had for him. Because the parties were married at the time that the donation was executed, we conclude that Renee's recital stating that she donated the property in consideration of the love and affection she had for Sonny was in consideration of her present marriage.

Although nothing in the record establishes that Renee and Sonny executed the donation "at the same time and at the same place" as required by Article 1747, we conclude that failure does not render the September 9, 2004 donation inter vivos null and void. Article 1747 must be read in conjunction with the other code articles in the Civil Code chapter governing inter vivos interspousal donations, including La. C.C. art. 1744, which provides in pertinent part:

A donation inter vivos by a person to his future or present spouse in contemplation of or in consideration of their marriage that is not made in accordance with the provisions of this Chapter shall be governed solely by the rules applicable to donations inter vivos in general. [Emphasis added.]

Thus, under the plain language of Article 1744, Renee's donation inter vivos of the Marilyn Lane residence to Sonny, made in consideration of their marriage, not made in accordance with Article 1747 is "governed solely by the rules applicable to donations inter vivos in general." According to La. C.C. art. 1541, "A donation inter vivos shall be made by authentic act under the penalty of absolute nullity."

Although Renee challenged the propriety of the authentic act at the June 1st and 23rd hearings, suggesting the evidence established that Sonny did not appear before the notary and two witnesses as recited on the act of donation, she does not so assert in this appeal. Accordingly, we find no error in the trial court's implicit determination that the September 4, 2009 donation inter vivos was valid as to form.

CLASSIFICATION OF THE PROPERTY

Renee claims that since her donation inter vivos to Sonny was executed during the existence of the marriage, it is presumed that the Marilyn Lane residence is community property. She asserts that because the four corners of the September 4, 2009 donation inter vivos fail to establish that she gave the property to Sonny as his separate property, the trial court erred in finding that the Marilyn Lane residence is Sonny's separate property.

According to La. C.C. art. 2343.1 :

The transfer by a spouse to the other spouse of a thing forming part of his separate property, with the stipulation that it shall be part of the community, transforms the thing into community property. As to both movables and immovables, a transfer by onerous title must be made in writing and a transfer by gratuitous title must be made by authentic act.

As we have already noted, the September 4, 2009 donation was made by an authentic act. According to the terms of the donation:

Personally came and appeared,
[Renee] ..., married, to [Sonny], donor, ... who declared that in consideration of the love and affection which she has for
[Sonny] ..., married to [Renee] ... herein referred to as donees Donor hereby does, by these presents, irrevocably donate inter vivos, give grant, transfer, set over, with all legal warranties ... and deliver to [Sonny], the hereinafter described immovable property, presently owned by donor, and which is fully described as:
One (1) certain tract or parcel of land, together with all the buildings and improvements thereon ... being more particularly [known as the Marilyn Lane residence].
To have and to hold the above described property unto DONEE, his heirs, successors, and assigns forever.
Said donee does hereby accept this donation with gratitude, and acknowledges delivery and possession thereof. [Footnote added.]

Property in the possession of a spouse during the existence of the community property regime is presumed to be community, but either spouse may rebut the presumption. La. C.C. art. 2340. The spouse seeking to rebut the presumption bears the burden of proving by a preponderance of the evidence that property is separate in nature. A trial court's finding regarding the nature of property as being either community or separate is a factual determination subject to the manifest error/clearly wrong standard of review. Benoit v. Benoit , 2011-0376 (La. App. 1st Cir. 3/8/12), 91 So.3d 1015, 1021, writ denied, 2012-1265 (La. 9/28/12), 98 So.3d 838.

The parties testified in conformity with one another that Renee donated the Marilyn Lane residence to Sonny to ensure that upon her premature death, he would have a home in which to live and that her children would not "just throw him out." Although Renee stated it was her intent to give the Marilyn Lane residence to the community and that she would retain an interest in the property, Sonny testified that Renee never said she was only giving him a half interest in the property. Sonny said that between 2009, when they executed the donation, and 2015, when he filed for divorce, Renee never indicated that she wanted to change the terms of the donation. According to Sonny, the reason he sought the divorce was because he had become tired of Renee threatening to throw him out of the house that was in his name.

We find no manifest error in the trial court's classification of the Marilyn Lane residence as Sonny's separate property. The trial court could infer that the parties' intent was to transfer the Marilyn Lane residence to Sonny as his separate property from Sonny's testimony indicating that the Marilyn Lane residence was "in his name." While Renee testified to the contrary, we are aware that upon review of this record, our duty is not to reweigh the evidence but to simply ascertain whether the trial court's conclusion was reasonable in light of the record in its entirety. See Stobart v. State, through Dep't of Transp. and Dev. , 92-1328 (La. 4/12/93), 617 So.2d 880, 882.

The donation clearly stated that Renee "irrevocably donate[d]" the former matrimonial domicile unto Sonny, "his heirs, successors, and assigns forever." And Sonny expressly accepted Renee's donation in writing as the donee. Therefore, there is no error in the trial court's classification of the Marilyn Lane residence as Sonny's separate property.

REVOCATION OF DONATION FOR INGRATITUDE

Renee contends she is entitled to have the donation inter vivos revoked due to Sonny's ingratitude. She maintains that Sonny's acts of filing for divorce, seeking and obtaining a judgment evicting her from the Marilyn Lane residence, refusing to consent to a voluntary revocation of the donation, as well as her claims that he threatened her with violence, said he no longer loved her, and made disparaging comments about her daughter that he said he would convey to Renee's emotionally disturbed grandson demonstrated ingratitude sufficient to revoke the donation.

Although generally irrevocable, see La. C.C. art. 1468, a donation may be revoked on account of ingratitude but only if the donee has been guilty of, among other things, grievous injuries toward the donor. See La. C.C. arts. 1556 & 1557. The trial court's determination as to whether a donee has committed a "grievous injury" upon a donor is a factual determination, which depends heavily on the facts and circumstances specific to the case. Petrie v. Michetti , 2010-122 (La. App. 5th Cir. 1/11/11), 59 So.3d 430, 440. A court of appeal may not set aside a trial court's finding of fact in the absence of manifest error or unless it is clearly wrong. When reviewing findings of fact, the issue to be resolved by the reviewing court is not whether the trier of fact was right or wrong, but whether the conclusion was a reasonable one. Stobart , 617 So.2d at 882.

Based on the evidence, the trial court was not manifestly erroneous in its conclusion that Sonny's actions were insufficient to constitute grievous injury to Renee so as to support revocation of the donation. Sonny's action of pursuing available legal remedies after he told Renee he was no longer in love with her does not demonstrate such grievous injury that we can say the trial court's conclusion to the contrary was unreasonable.

Renee has cited, and we have found, no cases that hold a donation revocable based solely on the donee's pursuit of a divorce from the donor without regard to fault. Sonny's decision to seek a divorce does not demonstrate infliction of a grievous injury upon Renee as a matter of law, and the trial court's conclusion that Sonny's pursuit of a divorce failed to show a grievous injury sufficient to warrant revocation of the donation is not unreasonable in light of this record reviewed in its entirety. Similarly, once the petition for divorce was filed, it was not unreasonable for Sonny to request that the court resolve the issue of classification of the Marilyn Lane property which resulted in the judgment ordering Renee to evict the premises. And while it is true that the refusal to consent to the revocation has been suggested as a grievous injury sufficient to support a revocation of a donation, see Perry v. Perry , 507 So.2d 881, 883 (La. App. 4th Cir.), writ denied, 512 So.2d 465 (La. 1987) (quoting 4 C. Aubry & C. Rau, COURS DE DROIT CIVIL FRANCAIS, § 708 (La. State Law Institute Trans. Vol. 3, 1965)), the availability of such a basis was tempered as "in a proper case." In that no example was provided by the Perry court and this dictum has not been applied by any subsequent Louisiana court, we cannot say the trial court erred in concluding that Sonny's choice to not voluntarily revoke Renee's donation was insufficient to constitute a grievous injury so as to warrant revocation of the donation.

Insofar as Renee's claims regarding the remarks Sonny made to her and those she avers he said about her daughter, Sonny testified to the contrary. He denied that he threatened Renee. And while he admitted that he told Renee he was no longer in love with her, Sonny stated it was in the context of advising her he wanted a divorce. Lastly, Sonny admitted that he was upset with Renee's daughter, Melinda "Lerai" Lucas, and told Renee that he ought to reveal information about Lerai to her son. But according to Sonny he was blowing off steam and would never have actually done so. Given Sonny's testimony, a reasonable factual basis exists to support the trial court's conclusion that Sonny's remarks were insufficient to constitute grievous injury sufficient to revoke the donation.

DECREE

For these reasons, the trial court's judgment is affirmed. Appeal costs are assessed against defendant-appellant, Donna Renee Watts.

AFFIRMED.

      Renee's separate property was used to build the Marilyn Lane residence, although Sonny contributed to the construction.

      See La. C.C. art. 1833 (setting forth the requirements for an authentic act and expressly stating "[t]o be an authentic act, the writing need not be executed at one time or place).

      The trial court issued a single document that contained both its reasons for judgment and the judgment. Although it is technically improper to incorporate written reasons for judgment in the judgment itself, see La. C.C.P. art. 1918, such action does not serve to invalidate the judgment. ASP Enterprises, Inc. v. Guillory, 2008-2235 (La. App. 1st Cir. 9/11/09), 22 So.3d 964, 968, writ denied, 2009-2464 (La. 1/29/10), 25 So.3d 834. While the trial court expressly found that the donation, in authentic form, was valid, it did not make an express finding on Renee's claim that the Marilyn Lane residence was an asset of the community, stating instead that "the transfer was to [Sonny], his heirs, successors, and assigns." But before the trial court was Renee's motion for new trial challenging the propriety of the April 18, 2016 judgment, evicting Renee from the former matrimonial domicile, which expressly and necessarily included a finding that the Marilyn Lane residence was Sonny's separate property. And in her pretrial and post-trial memoranda, Renee raised the issue of the classification of the Marilyn Lane residence as community. Reading the August 16, 2016 reasons for judgment and mindful that silence in a judgment as to a claim that has been joined is deemed a rejection of that claim, see Schoolhouse, Inc. v. Fanguy, 2010-2238 (La. App. 1st Cir. 6/10/11), 69 So.3d 658, 664, we conclude that by denying her motion for new trial, the trial court rejected Renee's claim that the former marital domicile was community property. Although in her motion for new trial, Renee did not expressly challenge the finding that the Marilyn Lane residence was Sonny's separate property, since she has raised the issue of the classification of the property in this appeal, we conclude it is correctly before us in this review as part of an appeal of the April 18, 2016 judgment on the merits since Renee timely appealed the August 30, 2016 judgment, denying the motion for new trial. See Hill v. TMR Exploration, Inc., 2016-0566 (La. App. 1st Cir. 6/13/17), 223 So.3d 556, 560, writ denied, 2017-1163 (La. 10/27/17), 228 So.3d 1227 (the denial of a motion for new trial is an interlocutory and non-appealable judgment; however, an appeal of the denial of a motion for new trial should be considered as an appeal of the judgment on the merits when it is clear from appellant's brief that the appeal was intended to be on the merits).

      The full description of the donated item set forth in the donation inter vivos is:
      One (1) certain tract or parcel of land, together with all the buildings and improvements thereon, and all of the rights, ways, privileges, servitudes, appurtenance and advantages thereunto belonging or in anywise appertaining, situated in the Parish of Tangipahoa, State of Louisiana, being more particularly described as LOT NUMBER THREE, BRENTWOOD ACRES SUBDIVISION, in Section 5, Township 7, South, Range 7 East, all as per survey of Gilbert Sullivan, Reg. Land Surveyor, dated November 8, 1979.

      Renee asserted that in identifying the donee of the donation, the use of the plural "donees" demonstrated an ambiguity that, with parol evidence, required a finding that she donated the Marilyn Lane residence to both Sonny and herself. We note that reading the document in its entirety, the donation later identifies Sonny, as well as only "his heirs, successors, and assigns forever," as the sole donee designated "[t]o have and to hold the above described property." Additionally, the donation was expressly accepted by a single donee, Sonny. Thus, based on the language utilized within the four corners of the donation, it appears that the plural reference in the identification of the parties to the act was merely a typographical error. Moreover, to the extent that the reference to "donees" was ambiguous, after accepting parol evidence, the trial court concluded that the parties intended that the irrevocable donation was to Sonny as his separate property and, as we have determined, this conclusion is not manifestly erroneous. Therefore, there was no error by the trial court on this basis.


author: McLENDON, J.

text:
    Eugene MOLINA v. OILFIELD PRODUCTION CONTRACTORS, INC.
    2017 CA 0455
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: DECEMBER 29, 2017
    Christopher L. Williams, New Orleans, LA, Counsel for Plaintiff/Appellant, Eugene Molina
    Vincent Dagate, Jr., Houma, LA, Counsel for Defendant/Appellee, Oilfield Production Contractors, Inc.
    BEFORE: McCLENDON, WELCH, AND THERIOT, JJ.
   McLENDON, J.

A former employee appeals a trial court judgment ordering payment of vacation leave by his former employer, but failing to award the employee penalty wages and attorney's fees. For the following reasons, we amend the judgment, and as amended, affirm.

FACTS AND PROCEDURAL HISTORY

Eugene Molina was employed by Oilfield Production Contractors, Inc. ("OPC") as a lead operator until he was terminated by OPC on July 23, 2015. On February 16, 2016, Mr. Molina filed a Rule to Show Cause seeking to hold OPC liable for failing to pay forty-four hours of accrued vacation pay allegedly owed him, as well as penalty wages, attorney's fees, and costs. OPC answered Mr. Molina's rule, asserting that he had been paid in full for the three vacation days earned at the time of his termination.

Following a hearing, the trial court found that Mr. Molina was owed $244.76, representing .89 days of pay. However, the trial court concluded that OPC had not acted in bad faith, and it denied Mr. Molina's claim for penalties and attorney's fees.

Mr. Molina has appealed, asserting that the trial court erred in concluding that he was entitled to only .89 days of vacation pay, and by refusing to award penalty wages and attorney's fees.

DISCUSSION

The Louisiana Wage Payment Act, LSA-R.S. 23:631, et seq. , is designed to compel prompt payment of earned wages upon an employee's discharge or resignation. Davis v. St. Francisville Country Manor, L.L.C., 13-0190 (La.App. 1 Cir. 11/01/13), 136 So.3d 20, 22. Specifically, LSA-R.S. 23:631(A)(1)(b) provides that upon resignation of an employee, the employer shall pay the employee "the amount then due under the terms of employment" on or before the earlier of the next regular pay day or fifteen days following the employee's discharge. For purposes of LSA-R.S. 23:631(A), wages are equivalent to the "amount then due under the terms of employment," i.e., wages, or compensation, earned during a pay period. Davis, 136 So.3d at 22. Subsection D(1) addresses vacation pay and provides as follows:

For purposes of this Section, vacation pay will be considered an amount then due only if, in accordance with the stated vacation policy of the person employing such laborer or other employee, both of the following apply:
(a) The laborer or other employee is deemed eligible for and has accrued the right to take vacation time with pay.
(b) The laborer or other employee has not taken or been compensated for the vacation time as of the date of the discharge or resignation.

The main purpose of the wage payment law is to compel an employer to pay the earned wages of an employee promptly after his dismissal or resignation and to protect discharged Louisiana employees from unfair and dilatory wage practices by employers. Berard v. L-3 Communications Vertex Aerospace, LLC, 09-1202 (La.App. 1 Cir. 2/12/10), 35 So.3d 334, 342, writ denied, 10-0715 (La. 6/4/10), 38 So.3d 302.

In his first assignment of error, Mr. Molina contends that he is entitled to the full four days of vacation pay he earned under OPC's vacation policy and had not used at the time of his July 2015 termination, rather than the .89 vacation days awarded by the trial court. Specifically, Mr. Molina contends that he earned 7 days' vacation pay beginning on January 1, 2015, and since he had used only 3 vacation days at the time he was terminated, OPC owed him the balance of 4 days.

On the other hand, OPC contends that employees were only entitled to 7 days of vacation if they worked the entire year. Because Mr. Molina worked from January 1 through July 22, or 203 days out of 365 days, OPC maintains that Mr. Molina accrued 3.89 days at the time he had been terminated. OPC maintains Mr. Molina had therefore accrued only 3 full vacation days; had already been paid for 3 vacation days (April 9, 10, and 11) at the time he was terminated; and was owed nothing further. Nevertheless, OPC has not challenged the trial court's finding that Mr. Molina was owed vacation pay for .89 days.

In interpreting contracts, we are guided by the general rules contained in LSA-C.C. arts. 2045 - 2057. Campbell v. Melton, 01-2578 (La. 5/14/02), 817 So.2d 69, 74. The interpretation of a contract is the determination of the common intent of the parties with courts giving the contractual words their generally prevailing meaning unless the words have acquired a technical meaning. LSA-C.C. arts. 2045 and 2047 ; Campbell, 817 So.2d at 74. When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the intent of the parties. LSA-C.C. art. 2046 ; Campbell, 817 So.2d at 75.

When the terms of a written contract are susceptible to more than one interpretation, or there is uncertainty or ambiguity as to its provisions, or the intent of the parties cannot be ascertained from the language employed, parol evidence is admissible to clarify the ambiguity or show the intention of the parties. In cases in which the contract is ambiguous, the agreement shall be construed according to the intent of the parties. LSA-C.C. art. 2045. A doubtful provision must be interpreted in light of the nature of the contract, equity, usages, the conduct of the parties before and after the formation of the contract, and of other contracts of a like nature between the same parties. LSA-C.C. art. 2053 ; Amend v. McCabe, 95-0316 (La. 12/1/95), 664 So.2d 1183, 1187-88. Contract interpretation of ambiguous terms requires construction against the contract's drafter. LSA-C.C. art. 2056, Campbell, 817 So.2d at 75.

Whether a contract is ambiguous or not is a question of law. Amitech U.S.A., Ltd. v. Nottingham Const. Co., 09-2048 (La.App. 1 Cir. 10/29/10), 57 So.3d 1043, 1058, writs denied, 11-0866, 110953 (La. 6/17/11), 63 So.3d 1036, 1043. Where factual findings are pertinent to the interpretation of a contract, those factual findings are not to be disturbed unless manifest error is shown. Id.

Regarding vacation pay, OPC's vacation policy provided:

Vacation Pay: Seven days/80 hours, per year at your regular base hourly rate. Vacation must be scheduled with the office at least 4 weeks prior to scheduled date. Emergency vacation may be granted with documentation applying for emergency. Salaried employees are paid on hourly base pay and hours worked per day.

The terms of the vacation pay in OPC's policy, i.e. "Seven days/80 hours, per year," is ambiguous in that it does not specifically indicate when those days accrue, either at the beginning at the year or pro-rata over the course of the year. Moreover, the policy does not indicate that vacation pay will be pro-rated in the event an employee leaves the company. Cf. Grady v. Choices of Louisiana, Inc., 13-437 (La.App. 5 Cir. 3/12/14), 138 So.3d 42, 43, writ denied, 14-0756 (La. 5/23/14), 140 So.3d 729 (wherein the appellate court found that an employee who was terminated before the end of the year should have her vacation pay pro-rated for the time period she worked where the company's policy provided that if an employee left the company before December 31, his or her vacation would be pro-rated by the number of weeks he or she had worked during the year.)

Mr. Molina testified that his understanding of the policy was that OPC employees earned the seven days of vacation pay at the beginning of the year. Mr. Molina also testified that in prior years he had sometimes taken four to five vacation days for Mardi Gras when he would not have accrued that much time if vacation days were on a pro-rata basis. Mr. Molina admitted that in 2014 and 2015, he had not used any vacation time for Mardi Gras.

Thomas Arceneaux, Mr. Molina's supervisor, testified that Mr. Molina "[p]robably could have" taken all seven vacation days in April had he wanted. Mr. Arceneaux also indicated that "[a] lot of people" would use the seven vacation days at the beginning of the year. Mr. Arceneaux also testified, however, that an employee that did not work the entire year would not be entitled to the full seven vacation days. Mr. Arceneaux indicated that at the time Mr. Molina was terminated, he had already taken three vacation days. As such, based on the computation, Mr. Arceneaux testified that Mr. Molina perhaps may be owed "part of a day" in vacation pay, but that OPC did not "pay partial days."

Given that any ambiguity in the vacation policy must be construed against the drafter and considering the custom of allowing employees to take all seven vacation days at any time during the year, we conclude that Mr. Molina was eligible for and had accrued the right to take seven days' vacation at the time he was terminated. Mr. Molina had only been compensated for three of those days. Accordingly, we conclude that the trial court manifestly erred in only awarding Mr. Molina .89 of a day's vacation pay. Therefore, we amend the judgment to award Mr. Molina $1,100.04, representing four vacation days at a rate of $275.01 per day.

In his second assignment of error, Mr. Molina contends that the trial court erred by failing to award penalty wages based on OPC's failure to pay the full four days of vacation pay owed him as required by LSA-R.S. 23:631. Any employer who fails or refuses to comply with the provisions of LSA-R.S. 23:631 shall be liable to the employee either for ninety days' wages at the employee's daily rate of pay, or else for full wages from the time the employee's demand for payment is made until the employer shall pay or tender the amount of unpaid wages due to such employee, whichever is the lesser amount of penalty wages. LSA-R.S. 23:632. However, where there is a good-faith question of whether the employer actually owes past due wages to the discharged employee, the employer's resistance to payment of wages will not trigger the imposition of a penalty wage. Loup v. Louisiana State School for the Deaf, 98-0329 (La.App. 1 Cir. 2/19/99), 729 So.2d 689, 692. A trial court's findings of fact with regard to whether the plaintiff is entitled to penalty wages cannot be reversed on appeal in the absence of manifest error or unless clearly wrong. Id. at 693.

The trial court found that Mr. Molina was not entitled to penalty wages. In so finding, the trial court indicated that it believed that the issue of post-termination vacation pay had simply never come up before and had never been previously addressed by OPC. The trial court found that while OPC made "an improper judgment on it," OPC had not acted in bad faith and Mr. Molina was not entitled to penalty wages. Following our review of the record, specifically including Mr. Arceneaux's testimony, we cannot conclude that OPC arbitrarily refused to pay the unused vacation days. Accordingly, the trial court did not manifestly err in denying penalty wages. Mr. Molina's second assignment of error is without merit.

In his third assignment of error, Mr. Molina contends that the trial court erred in failing to award him attorney's fees, given that he obtained relief. Louisiana Revised Statutes 23:632(C) provides that "[r]easonable attorney fees shall be allowed the laborer or employee by the court which shall be taxed as costs to be paid by the employer, in the event a well-founded suit for any unpaid wages whatsoever be filed by the laborer or employee after three days shall have elapsed from time of making the first demand following discharge or resignation." The award of reasonable attorney fees is mandatory when an employee brings a "well-founded" suit for unpaid wages, irrespective of any equitable defenses that may be raised by the employer. Loup, 729 So.2d at 693. Suits in which the recovery of back wages is granted are considered "well-founded." Id. Reasonable attorney fees are to be awarded in the event the employee files a well-founded suit for unpaid wages, even if penalty wages are not due. Id. Where the record does not detail time and costs of an attorney's services, the court may nonetheless fix the fee. Chesterfield v. Genesis Hospice, L.L.C., 13-0179 (La.App. 1 Cir. 12/19/13), 137 So.3d 22, 25.

Rule 1.5 of the Rules of Professional Conduct provides the following factors to be considered by the court in setting reasonable attorney fees:

(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
(3) the fee customarily charged in the locality for similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the circumstances;
(6) the nature and length of the professional relationship with the client;
(7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and
(8) whether the fee is fixed or contingent.

Considering the entirety of the record in light of the aforementioned factors, we award attorney fees of $5,000.00.

CONCLUSION

For the foregoing reasons, we amend the trial court's judgment to raise the vacation leave award from $244.76 to $1,100.04. Having concluded that an award of attorney fees is mandated when a suit for unpaid wages is successful, we amend the judgment and order defendant, Oilfield Production Contractors, Inc., to pay attorney fees in the amount of $5,000.00. The judgment is affirmed in all other respects. Costs of this appeal are assessed against Oilfield Production Contractors, Inc.

AMENDED, AND AS AMENDED, AFFIRMED.

      Although OPC contends that Mr. Molina's demand was insufficient to warrant the imposition of attorney fees, the record indicates that Mr. Molina made a demand for his vacation pay through both an e-mail and a certified letter. Further, even after suit was filed, OPC made no additional payments to Mr. Molina. Therefore, we find no error in the trial court's conclusion that Mr. Molina made sufficient demand as required by LSA-R.S. 23:632.

      This figure represents compensation for the work done both at the trial court level as well as on appeal.