author: DREW, J. MOORE, J.

text:
    STATE of Louisiana, Appellee v. Santanna Lendel DAVIDSON, Appellant.
    No. 44,916-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 10, 2010.

      Kyle M. Robinson, Bossier City, for Appellant.
    Charles Rex Scott, II District Attorney, Tommy Jan Johnson, Damon Daniel Ker-vin, Assistant District Attorneys, for Ap-pellee.
    Before DREW, MOORE and LOLLEY, JJ.
   DREW, J.

|2After a bench trial for the crime of possession of Schedule II CDS with intent to distribute, contrary to La. R.S. 40:967(A)(1), defendant, Santanna Davidson, was found guilty of the responsive charge of possession of cocaine, contrary to La. R.S. 40:967(C)(2). Adjudicated as a fourth felony offender, he was sentenced to 40 years at hard labor. Additionally, he was fined $10,000, or in default, one year in jail. He appeals. We affirm the conviction, amend the sentence, and, as amended, affirm.

TESTIMONY

On August 23, 2007, Sergeant Jeff Peters, Agent Chad Denham, and Agent Shawn Parker of the Shreveport Police Department responded to complaints that drugs were being used and dealt out of a Shreveport house. They arrested five people.

Sgt. Peters testified that:

• he saw a person standing outside the home turn, run inside, and slam the door;
• a neighbor told him no one lived in the home;
• he saw no working electricity in the house;
• he saw a bag on the floor containing many small plastic bags of crack cocaine;
• when he came into the living room all of the occupants were sitting on a couch;
• there was no running water;
• electricity was being “bootlegged from next door”;
• no one admitted living in the home, nor owning the drugs;
|s* he did not list the location of any of the drugs; and
• no physical evidence specifically linked the defendant to the drugs, yet all of the occupants had access to the drugs.

In connection with the testimony of Sgt. Peters, a crime lab report was admitted over the objection of defense counsel, on the ground that he had not been notified of the report. The report listed the substance tested as cocaine weighing 20.4 grams.

Agent Denham testified next and gave a substantially similar account of the events, stating that there was a bag of crack cocaine lying on the kitchen floor, and that other bags of crack were strewn throughout the house, including the kitchen and hallway. He agreed that no one claimed ownership of the drugs.

Agent Parker gave similar testimony to the other officers. He stated that:

• all five subjects were sitting on a couch in the dark, near a green bag of crack cocaine;
• the room where the couch and bag were found was a 12-foot by 12-foot room, and that most of the men were sitting on a couch that blocked the front door;
• one occupant who may or may not have been the defendant was sitting on a chair;
• the bag was possibly eight to ten inches from the couch;
• the bag was packaged so as to indicate that the contents were for sale;
• he had raided many crack houses and the house in this case was similar to the others; and
14* he did not know that Agent Denham did not reference the bag found by the couch.

The defense then moved for a judgment of acquittal grounded upon the insufficiency of the evidence. The court denied the motion.

Demetrius Loston testified that:

• he was renting the house from “Ms. Pat,” who lived across the street;
• he did not pay an electric bill, but the rent was supposed to include electricity;
• he had gone down the street to take care of some business and had just come back when the agents pulled up to the house;
• he ran through the house but could not exit via the jammed back door;
• someone then threw the breaker to turn off the electricity, at which point he hid all the drugs in the pantry;
• he pled guilty, exonerating the others, because all of the drugs were his;
• the police shut off the electricity and took the drugs out of the pantry;
• the officers lied about drugs being all over the house;
• one of the occupants, Robert Russell, called Davidson to pick him up;
• Davidson had been there about ten minutes when the police arrived;
• Davidson was sitting on the couch; and
• he did not know whether or not Davidson, his relative, is a drug dealer.

The defendant, Santanna Davidson, testified that:

• he admitted having three prior convictions for possession with intent to distribute (two for marijuana; one for cocaine), but insisted he was no longer dealing drugs;
• he went over to the house only to pick up Robert Russell, who was not ready to go because he was playing a video game;
• he sat on the couch while waiting for Russell to finish;
| when the police knocked, the others blocked the door with a couch;
• he never left the front room, and did not know that drugs were present; and
• no cocaine was discovered near him.

Agent Parker was recalled and testified that the drugs were found on the floor of the house, not in a pantry. Sgt. Peters was also recalled and testified that no drugs were found in a pantry. He stated that he assumed the electricity was bootlegged as there was an orange power cord running from a neighboring house through a window, and he was not sure what was plugged into it. Agent Denham was then recalled and gave similar testimony. He stated that the drugs were found on the floor of the house, packaged for individual sale.

The defense again moved for judgment of acquittal claiming the State did not have sufficient evidence to convict the defendant. The judge denied the motion. After closing arguments were made, the court stated it had charged itself with instructions concerning the witnesses’ testimony, and also with all the responsive verdicts. Thereafter, the court rendered a responsive verdict of guilty of possession of a Schedule II CDS. In due course, the court found the defendant to be a fourth felony offender.

DISCUSSION

Sufficiency

The defense claims that there was not sufficient evidence to convict the defendant of possession of a Schedule II CDS. The defense urges that the State failed to show essential elements of the crime, namely, that Davidson had knowledge of the crack cocaine, and that the drugs were 16within his dominion and control. Davidson argues that the only connection made between himself and the drugs was Agent Parker’s unreliable and uncorroborated testimony that he saw a package of drugs by the couch where the occupants were seated. The defense then claims that even if the drugs were in the room, the agent was not sure if Davidson was seated on the couch; therefore, sufficient evidence did not exist to convict Davidson.

The State agrees that no drugs were found on Davidson, but drugs were found near him. Further, the State argues that the fact that drugs were found throughout the house, and the defendant moved a couch to block the doorway, proves he exercised dominion and control over the contraband in the room. The prosecution argues that the officer was a more credible witness than was the defendant.

_ Our law on review for sufficiency the evidence is well settled.

|7The defense relies on State v. Young, 618 So.2d 1149 (La.App. 2d Cir.1993), and State v. Lias, 28,091 (La.App. 2d Cir.5/8/96), 674 So.2d 1044, to argue that the defendant’s mere presence where drugs were found is not sufficient to support constructive possession. The prosecution argues that State v. Toups, 2001-1875 (La.10/15/02), 833 So.2d 910, controls this proceeding.

In State v. Young, supra, the defendant was arrested after being found asleep in a room inside a house which contained drugs. Drugs and drug paraphernalia were found throughout the house; however, no drugs were found on the defendant or in the room where he was sleeping. The Young court found that the State failed to prove the essential elements of the crime, including that the defendant had knowledge that drugs were present, and therefore reversed his conviction.

In State v. Lias, supra, officers observed a hotel room which, reportedly, contained people engaging in drug activity. The officers | ^confronted a woman walking out of the hotel. As she saw the officers, she threw bags containing crack cocaine on the ground. The officers arrested the woman and had her go to the room and knock on the door. The defendant answered the door, and when he saw the officers, he attempted to slam the door shut and began digging in his pocket. The officers entered, retrieved a knife from his pocket, and arrested the defendant. Another woman in the room attempted to flee and threw crack cocaine as she ran. The defendant was convicted by a jury for possession of a CDS. However, on appeal this court reversed the conviction finding that there was not sufficient evidence to support it. The court focused on the fact that the room was not registered in the defendant’s name, there were no drugs found on his person, the only drugs were found on the women, and no evidence suggested that the defendant had any way of knowing the women possessed drugs. The only thing the defendant did was slam the door shut on the police. This was not enough to support the conviction.

In State v. Toups, supra, officers entered a home and found the defendant seated on a couch talking to the resident. Within three feet of the defendant was crack cocaine, and a substantial amount of cocaine was found in other areas of the house. The supreme court affirmed the conviction, finding that substantially all the factors needed to establish dominion and control were met. The factors for this court to consider include his knowledge that drugs were in the area, his relationship with the person found to be in actual possession, his access to the area where the drugs were found, evidence of recent drug use, and his physical proximity to the drugs. | qSee, State v. Hughes, 587 So.2d 31 (La.App. 2d Cir.1991), writ denied, 590 So.2d 1197 (La.1992).

Applying the dominion and control factors, we agree with the trial court that the defendant constructively possessed the drugs.

According to Agent Parker’s testimony, drugs were found within one foot of the couch. While the officers did not recall who was sitting on the couch, Davidson admitted doing so; further, Loston testified that he saw Davidson sitting on the couch. While it is not clear who turned off the electricity to the house, it is not disputed that at some point while Davidson was at the house, the electricity was on. Further, according to Davidson’s own testimony, he never left the room where the couch was. Therefore, it seems improbable that he did not see the bag of cocaine. As he is an admitted former drug dealer, it is unreasonable to assume he did not know what the bag contained.

Loston claimed to be renting the home and while he was not in actual possession, he later claimed to be the owner of all the drugs. Even if Loston did in fact own the drugs, others can constructively possess the same drugs. Loston is Davidson’s cousin. This familial relationship makes it more likely that Davidson knew exactly what was going on. While there was not any evidence of actual drug use, Davidson was clearly within close proximity to the drugs and had access to them.

Crime Lab Report

Davidson argues that the lab report should not have been admitted into evidence. The report contained the analysis results and weight of the |10cocaine. According to the defendant, the recent U.S. Supreme Court decision, Melendez-Diaz v. Massachusetts, — U.S.-, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009), has found that admitting such reports violates the confrontation clause and the holding in Crawford v. Washington, 541 U.S. 86, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).

The prosecution argues that this specific objection was not made at trial, and was therefore waived. Further, the prosecution argues that the issue is moot as one of the appellant’s witnesses admitted that the substance was cocaine, and the police also testified that the substance field tested positive as cocaine. The prosecution also argues that the report is not testimonial; therefore, it does not fall under the purview of Crawford, supra, or Melendez-Diaz, supra.

Melendez-Diaz, supra, held that states cannot avoid Crawford by designating certain documents as non-accusatory and therefore non-testimonial. In Melendez, defendant had been arrested for possession of cocaine. To establish the fact that the substance seized was cocaine, the State submitted laboratory analysis of the substance. The report confirmed that the substance was cocaine and also stated the weight of the substance seized. The supreme court found that this laboratory report violated Crawford as it was offered as prima facie evidence of the crime, with no showing that the analysts who prepared the reports were unavailable. The records did not fall into the regularly kept records exception, since these sorts of documents are prepared for use in court, not in business.

lnHowever, violations of the confrontation clause are subject to a harmless error analysis. Delaware v. Van Arsdall, 475 U.S. 673, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986); State v. Broadway, 1996-2659 (La.10/19/99), 753 So.2d 801. The verdict may stand if the reviewing court determines that the guilty verdict rendered in the particular trial is surely unattributable to the error. State v. Broadway, supra; Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993).

The report in this case is clearly testimonial, as was the report at issue in Melendez-Diaz. Assuming, arguendo, that the report in this case violated the Sixth Amendment, it would still be subject to a harmless error analysis.

One of Davidson’s own witnesses testified under oath that the substance was cocaine. Further, the field test performed by one of the officers determined the substance to be cocaine. These facts alone would be sufficient to allow a fact finder to conclude that beyond a reasonable doubt, the substance was cocaine. The verdict in this case, unattributable to any error, will be undisturbed.

Excessiveness

The defense argues that:

• even though the sentence is within the statutory range, it is excessive;
• the maximum sentence for possession of cocaine is five years with or without hard labor and a $5,000 fine;
• in light of the relatively minor sentence for the underlying crime, 40 years is excessive as the sentence on the habitual offender proceeding; and
• the trial court did not articulate a sufficient justification for such a stiff penalty.

|12The prosecution urges that the penalty is not excessive, in light of the defendant’s criminal history. Our law on review of sentences for excessiveness is well settled.

Davidson was adjudicated as a fourth felony offender. According to La. R.S. 15:529.1(A)(l)(c)(i), the sentence range is not less than 20 years at hard labor, without benefit of probation or suspension of sentence, and not more than life. The trial judge stated that he considered La. C. Cr. P. art. 894.1 in sentencing.

Davidson has three prior convictions for possession of drugs with the intent to distribute. He was convicted of possession of cocaine in this case. He is a recidivist who falls squarely within the purview of the habitual |1soffender bill. This sentence is not excessive and does not shock the sense of justice.

The habitual offender statute does not provide for a fine, but does require that the hard labor sentence be served without benefit of probation or suspension of sentence. Consequently, we amend the sentence on our own motion to delete the fine and default jail time, and to require that the forty year hard labor sentence be served without benefit of probation or suspension of sentence. State v. Ealy, 44,252 (La.App. 2d Cir.5/13/09), 12 So.3d 1052.

The trial court failed to advise the defendant of his rights per La. C. Cr. P. art. 930.8. The defendant is hereby advised that no application for post conviction relief, including applications which seek an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final. State v. Fuller, 42,971 (La.App. 2d Cir.2/13/08), 975 So.2d 812.

DECREE

The defendant’s conviction is affirmed.

The defendant’s sentence is amended to omit the fine and default jail time, and to require that the 40-year sentence be served without benefit of probation or suspension of sentence. As amended, the sentence is affirmed.

CONVICTION AFFIRMED; SENTENCE AMENDED, AND, AS AMENDED, AFFIRMED.

MOORE, J., concurs in part and dissents in part with written reasons.

MOORE, J.

|,While I agree with the panel that the evidence in this case, albeit purely circumstantial, was sufficient to sustain the conviction for possession of a Schedule II CDS, the 40-year sentence imposed on this habitual offender is excessive. A sentence of eight times the statutory maximum for a nonviolent drug possession charge is simply too much and will place a needless financial burden upon the state. For this reason, I respectfully dissent.

      . Crack cocaine.

      . Interestingly, the record reflects that the crime lab report was file-stamped several months before trial, on November 27, 2008, the same date that present counsel enrolled in this case.

      . When issues are raised on appeal both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. The reason for reviewing sufficiency first is that the accused may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981), if a rational trier of fact, viewing the evidence in accord with Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in the light most favorable to the prosecution, could not reasonably conclude that all of the elements of the offense have been proved beyond a reasonable doubt. State v. Hearold, 603 So.2d 731 (La.1992); State v. Bosley, 29,253 (La.App. 2d Cir.4/2/97), 691 So.2d 347, writ denied, 97-1203 (La.10/17/97), 701 So.2d 1333. This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 2005-0477 (La.2/22/06), 922 So.2d 517; State v. Dotie, 43,819 (La.App. 2d Cir. 1/14/09), 1 So.3d 833, writ denied, 2009-0310 (La.11/6/09), 21 So.3d 297. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury's decision to accept or reject the testimony of a witness in whole or in part. State v. Eason, 43,788 (La.App. 2d Cir.2/25/09), 3 So.3d 685, writ denied, 2009-0725 (La.12/11/09), 23 So.3d 913; State v. Hill, 42,025 (La.App.2d Cir.5/9/07), 956 So.2d 758, writ denied, 2007-1209 (La.12/14/07), 970 So.2d 529. See also, State v. Bowie, 43,374 (La.App. 2d Cir.9/24/08), 997 So.2d 36, writ denied, 2008-2639 (La.5/22/09), 9 So.3d 141.
      La. R.S. 15:438 states:
      The rule as to circumstantial evidence is: assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.
      The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Speed, 43,786 (La.App. 2d Cir. 1/14/09), 2 So.3d 582, writ denied, 2009-0372 (La.11/6/09), 21 So.3d 299; State v. Parker, 42,311 (La.App. 2d Cir.8/15/07), 963 So.2d 497, writ denied, 2007-2053 (La.3/7/08), 977 So.2d 896.
      In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Gullette, 43,-032 (La.App. 2d Cir.2/13/08), 975 So.2d 753; State v. Burd, 40,480 (La.App. 2d Cir. 1/27/06), 921 So.2d 219, writ denied, 2006-1083 (La.11/9/06), 941 So.2d 35.
      The trier of fact is charged to make a credibility determination and may, within the bounds of rationality, accept or reject the testimony of any witness; the reviewing court may impinge on that discretion only to the extent necessary to guarantee the fundamental due process of law. State v. Casey, 99-0023 (La.1/26/00), 775 So.2d 1022, cert. denied, 531 U.S. 840, 121 S.Ct. 104, 148 L.Ed.2d 62 (2000).

      . The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Lathan, 41,855 (La.App. 2d Cir.2/28/07), 953 So.2d 890, writ denied, 2007-0805 (La.3/28/08), 978 So.2d 297. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. C. Cr. P. art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982); State v. Hampton, 38,017 (La.App. 2d Cir. 1/28/04), 865 So.2d 284, writs denied, 2004-0834 (La.3/11/05), 896 So.2d 57 and 2004-2380 (La.6/3/05), 903 So.2d 452. The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Haley, 38,258 (La.App. 2d Cir.4/22/04), 873 So.2d 747, writ denied, 2004-2606 (La.6/24/05), 904 So.2d 728. There is no requirement that specific matters be given any particular weight at sentencing. State v. Shumaker, 41,547 (La.App. 2d Cir. 12/13/06), 945 So.2d 277, writ denied, 2007-0144 (La.9/28/07), 964 So.2d 351; State v. Jones, 33,111 (La.App. 2d Cir.3/1/00), 754 So.2d 392, writ denied, 2000-1467 (La.2/2/01), 783 So.2d 385.
      Second, a sentence violates La. Const. art. I, § 20, if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Smith, 2001-2574 (La. 1/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 2001-0467 (La.1/15/02), 805 So.2d 166; State v. Lobato, 603 So.2d 739 (La.1992).


source: Caselaw Access Project

author: KIRBY, Judge.

license: Public Domain

text:
    Nathaniel JOSEPH v. ENTERGY and The City of New Orleans.
    No. 2009-CA-0198.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 10, 2010.
    Philip C. Ciaccio, Jr., Gretna, LA, for Tri-Stem, Ltd.
    Marc D. Winsberg, Maria G. Marks, Schonekas Winsberg Evans & McGoey, L.L.C., Marcus V. Brown, Entergy Services, Inc., Thomas M. Flanagan, Flanagan Partners LLP, New Orleans, LA, for Defendant/Appellant, Entergy New Orleans, Inc.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge MICHAEL E. KIRBY, Judge MAX N. TOBIAS, JR.).
   KIRBY, Judge.

| iDefendant/third party plaintiff, Enter-gy New Orleans, Inc., appeals the trial court judgment granting summary judgment in favor of third party defendant, TriStem, Ltd., and dismissing Entergy’s claim against TriStem. For reasons that follow, we affirm.

The underlying claim in this litigation is that of Nathaniel Joseph, et al. v. Entergy New Orleans, Inc., et al. Mr. Joseph was severely injured on March 18,1996 when a metal light pole fell and struck him while he was closing his family’s fruit stand on Tulane Avenue in New Orleans. Mr. Joseph sued Entergy and the City of New Orleans. The trial court found Entergy 100% liable for the accident, and Entergy appealed. This Court affirmed the finding of Entergy’s 100% liability for this accident in Joseph v. Entergy, 2000-2213, 2000-2214 (La.App. 4 Cir. 2/13/02), 811 So.2d 54.

Prior to the trial of the main demand, the trial court stayed all litigation associated with the third party demands of Enter-gy until further orders of the court. The trial court authorized the filing of the third party demands, but severed them from the trial of the main demand.

|2One of the third party demands filed by Entergy named TriStem as a third party defendant. In this demand, Entergy alleged that from 1990 through 1992, TriS-tem conducted an inspection of the street lights in the City of New Orleans on behalf of the City. As part of that inspection, TriStem reported to the City on the maintenance and condition of the street lights. Entergy claimed that TriStem negligently failed to determine the allegedly defective condition of the light pole in question. According to Entergy, a finding of liability on its part entitles it to either indemnification from TriStem or, alternatively, to contribution from TriStem as between joint tort-feasors.

TriStem filed a motion for summary judgment asking for dismissal of Entergy’s third party demand. TriStem claims that there are no issues of material fact and that it is entitled to judgment as a matter of law. In support of its motion, TriStem submitted a memorandum, the 1991 consulting agreement between TriStem and the City of New Orleans, the affidavit of the president and senior partner of TriS-tem, Joe Seeber, the 1994 settlement agreement between the City and Enter-gy’s predecessor, New Orleans Public Service, Inc. (NOPSI), and the trial court’s reasons for judgment in the underlying case finding Entergy 100% liable for plaintiffs injuries.

In opposition to TriStem’s motion, En-tergy filed a memorandum, letters sent in 1994 from Joe Seeber to representatives of Asplundh, a company that also participated in the inventory process, and the City regarding work performed by the street light inventory crew, excerpts from Joe Seeber’s deposition, excerpts from the transcript of the 2000 trial, court rulings regarding another third party defendant sued by Entergy, forms used in the street light inventory, reasons for | ¡Judgment from the 2000 trial, and this Court’s 2002 opinion involving the appeal of the 2000 trial court judgment.

Following a hearing, the trial court granted TriStem’s motion for summary judgment, and dismissed Entergy’s third party demand against TriStem. The trial court also issued an order designating its judgment as final for the purpose of an immediate appeal. Entergy now appeals.

In its sole assignment of error, Entergy argues that the trial court erred in granting summary judgment in favor of TriS-tem. TriStem’s motion for summary judgment was based on three arguments: (1) Entergy cannot recover tort indemnity from TriStem because Entergy was found to be 100% at fault for causing plaintiffs injuries, (2) Entergy cannot seek contribution from TriStem because its claim against TriStem is not based on an intentional or willful act, and (3) TriStem did not owe a duty to plaintiff or Entergy to maintain the street light pole that caused plaintiffs injuries. We find that the trial court correctly granted summary judgment in favor of TriStem because no genuine issues of material fact exist as to En-tergy’s third party claim against TriStem. Because of that finding, the issues of En-tergy’s entitlement to seek indemnification or contribution from TriStem are moot.

Summary judgment is properly granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact, and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966. Article 966 was amended in 1996, but the burden of proof remains with the mover to show that no genuine issue of material fact exists. If the mover will not bear the burden of proof at trial, his burden on the motion does not require him to negate all essential 14elements of the plaintiffs claim, but rather to point out that there is an absence of factual support for one or more elements essential to the claim. La. C.C.P. art. 966 C(2); Fairbanks v. Tulane University, 98-1228 (La.App. 4 Cir. 8/31/99), 731 So.2d 983.

After the mover has met its initial burden of proof, the burden shifts to the non-moving party to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden at trial. La. C.C.P. art. 966 C(2); Smith v. General Motors Corp., 31,258 (La.App. 2 Cir. 12/9/98), 722 So.2d 348. If the non-moving party fails to meet this burden, there is no genuine issue of material fact and the mover is entitled to summary judgment as a matter of law. La. C.C.P. art. 966; Schwarz v. Administrators of Tulane Educational Fund, 97-0222 (La.App. 4 Cir. 9/10/97), 699 So.2d 895. Appellate courts review summary judgments de novo, using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate.

The evidence submitted by TriStem in support of its motion for summary judgment established that in 1991, TriStem entered into a consulting agreement with the City of New Orleans under which TriStem agreed to “conduct a study of prior electrical and/or telephone billing to determine that the amounts paid by the CLIENT [City] are correct.” The affidavit of the TriStem president, Joe Seeber, established that TriStem is in the business of providing consulting services to individuals, businesses and governmental bodies for the purpose of determining whether or not the amounts they have been billed by electrical companies are correct. TriStem is not engaged in the business of providing engineering services or maintenance services to buildings or facilities that receive electrical services.

|fiMr. Seeber further stated that under its agreement with the City, TriStem undertook responsibility for determining the accuracy of electrical billings and to conduct a survey of the City’s street light system to determine if Entergy had actually performed maintenance on the poles for which Entergy had billed the City on a monthly basis. In the affidavit, Mr. See-ber also stated that after the inspection of the poles was completed, the City and Entergy in 1994 entered into a settlement agreement that required Entergy to maintain the street light poles as it had been required to do under previous agreements. According to Mr. Seeber, TriStem concluded its study in 1993 or 1994, and had no knowledge of the defective condition of the street light pole that fell and injured plaintiff.

The 1994 settlement agreement between the City and Entergy’s predecessor, NOPSI, stated that the street light inventory was completed in June 1994. In the agreement, NOPSI agreed to paint all poles identified in the street light inventory as “needing paint” or “heavily rusted” by February 28, 1995. The agreement also obligated NOPSI to repair or replace all poles or fixtures identified in the inventory as being structurally damaged, broken or missing by May 1,1995.

In reasons for judgment issued after trial on the main demand in 2000, the trial court stated that the testimony established that the street light pole that struck plaintiff fell because it was rusted and corroded, and therefore, defective. The trial court also found that Entergy did not complete the repairs, updating and painting it was obligated to complete under the terms of the settlement agreement. The court further found that if Entergy had followed the street light inventory and painted the |fipole in question, it would have discovered the defective condition of the pole months before plaintiffs accident.

In opposition to TriStem’s motion for summary judgment, Entergy submitted the street light inventory form showing that the metal light pole that struck plaintiff was classified as “needs painting.” Other categories not checked as to the light pole at issue included “structural damage,” “broken,” “missing,” “heavily rusted,” and “knocked down.” A January 28,1994 letter from Joe Seeber to a representative of Asplundh, a company that also participated in the inventory process, stressed the importance of accuracy in the inventory process and noted errors and problems found by TriStem. A March 4, 1994 letter from Joe Seeber to the City requested certain information from the City, and stated that such information was essential for TriStem to assemble a “quality inventory.” An excerpt of the deposition of Joe Seeber included his testimony that he performed TriStem’s initial inspection of the street lights. An excerpt from the 2000 trial included testimony from En-tergy employee Alvin Grille that a representative of TriStem participated in the street light inventory with representatives of other companies.

At the hearing on the motion, the trial court stated that it was granting summary judgment in favor of TriStem because “they [TriStem] fulfilled what they were supposed to do as a matter of law. I don’t think they’re responsible for reporting defects.” A review of the evidence submitted by TriStem establishes that the task TriStem undertook regarding the street light inventory was to determine if Enter-gy had actually performed the work for which it had already billed the City. While the evidence offered by Entergy shows that TriStem assumed the responsibility of providing an accurate inventory to the City and participated in the |7street light inventory with other companies, there is no evidence that TriStem assumed the responsibility of determining defects in the light poles. TriStem’s role was simply to determine the accuracy of Entergy’s previous billings to the City. TriStem is not in the business of providing engineering services or maintenance services.

Furthermore, there is no evidence that TriStem undertook the responsibility of continuing to advise the City and/or Enter-gy about the condition of the light poles once the inventory had been completed. The inventory was completed in June 1994 and plaintiffs accident occurred in March 1996. The evidence established that the only obvious problem with the light pole in question as of June 1994 was that it needed to be painted. Entergy presented no evidence showing that the information in the inventory was not accurate at the time the inventory was completed.

We find that TriStem carried its burden of proving that it did not owe a duty to plaintiff or Entergy to determine the alleged defect in the pole that fell on plaintiff. The burden then shifted to Entergy to produce factual support sufficient to establish that it would be able to satisfy its evidentiary burden at trial. Entergy failed to do so.

For the reasons stated above, we find that no genuine material fact exists as to Entergy’s third party claims against TriS-tem, and that TriStem is entitled to summary judgment as a matter of law. For the reasons stated above, the trial court judgment is affirmed.

AFFIRMED.

      . There is no evidence in the record as to the actual date that the 1994 settlement agreement between NOPSI and the City was signed. The agreement states the month and year of the agreement as December 1994, but the day is not filled in on any of the copies in the record.


author: BELSOME, Judge.

text:
    The PARAGON LOFTS CONDOMINIUM OWNERS ASSOCIATION, INC. v. The PARAGON LOFTS, L.L.C., Ekistics, Inc., Edifice Construction, Inc., The Roof Doctors, Inc., and Minerit, Inc.
    No. 2009-CA-0943.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 10, 2010.

      Donna Bramlett Wood, Jason B. Thrower, McCranie Sistrunk Anzelmo Hardy Maxwell & McDaniel, Metairie, LA, Michael R. Sistrunk, McCranie Sis-trunk Anzelmo Hardy Maxwell & McDaniel, Covington, LA, For Cement Board Fabricators, Inc.
    Wade A. Langlois III, Gevin P. Gris-baum, Gaudry Ranson Higgins & Gremil-lion, LLC, Gretna, LA, for Edifice Construction Company, Inc.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge ROLAND L. BELSOME, Judge PAUL A. BONIN).
   BELSOME, Judge.

| TEdifice Construction Company, Inc., a general contractor, appeals the trial court’s grant of summary judgment in favor of Cement Board Fabricators, a supplier named a third-party defendant by Edifice. We agree that Edifice cannot claim indemnity from Cement Board as a matter of law and affirm.

FACTS AND PROCEDURAL HISTORY

Plaintiff, the Paragon Lofts Condominium Owners Association, Inc. (“the Association”), originally filed suit on March 11, 2002, alleging construction defects in the roof and exterior walls, naming as defendants The Paragon Lofts, L.L.C. (a developer), Ekisties, Inc. (a developer), Edifice Construction, Inc. (the general contractor), The Roof Doctors, Inc., and Minerit, Inc. The Association alleged that defects in a construction project resulted in water intrusion and damage to the building, asserting claims of breach of warranty under the Louisiana New Home Warranty Act, La. R.S. 9:8141; negligence in failing to follow the architect’s plans and specifications and in failing to adhere to codes; and redhibition.

|20n November 4, 2005, Edifice filed a third-party demand against Appellee Cement Board Fabricators, Inc. and Royal Commercial Construction, Inc. (“Royal Construction”). Edifice argued that Cement Board, a supplier, provided the Min-erit board, installation materials, and instructions for the project, and that Royal Construction, the subcontractor, used the incorrect sheetrock and improperly applied the Minerit board. Edifice asserted that accordingly, if any award were made against Edifice, the party at fault for the improper work would be responsible for indemnifying Edifice; thus, Edifice argued that it was entitled to indemnity from Cement Board as the supplier of the Minerit board and Royal Construction, Inc., as the installer of the Minerit board.

On February 28, 2008, Royal Construction filed a motion for summary judgment against Edifice’s third-party demand, asserting that Edifice was precluded from seeking indemnity from Royal Construction because no indemnity contract between Edifice and Royal Construction existed. Royal Construction also asserted that Edifice could not seek tort immunity as a matter of law because Edifice was not free from fault, as Edifice admitted to deviating from the original plans and specifications by using exterior gypsum board rather than plywood and directing Royal Construction not to install felt behind the Minerit board. Royal Construction argued that it merely supplied the labor and followed Edifice’s directives regarding the gypsum board and felt. The trial court granted Royal Construction’s motion for summary judgment.

On April 28, 2008, Cement Board filed a motion for summary judgment on Edifice’s third-party demand, asserting, as Royal Construction did, that Edifice had |3no contract of indemnity with Cement Board, and that Edifice was also precluded from seeking tort immunity as a matter of law because Edifice was at least partially at fault for the alleged water intrusion damages. The trial court denied Cement Board’s motion on July 2, 2008. On December 16, 2008, the trial court granted a motion for summary judgment in favor of Oy Minerit Ab and Cembritt Blunn, LTD, the manufacturers of the Minerit board, who had also been made a third-party defendant by Edifice. The Minerit manufacturers asserted, like Royal Construction and Cement Board, that no contract of indemnity existed between the manufacturers and Edifice, and that Edifice’s admission that it failed to comply with the architect’s plans and specifications precluded Edifice from seeking tort indemnity from Oy Min-erit Ab and Cembritt Blunn, LTD.

Cement Board subsequently re-urged its motion for summary judgment on March 8, 2009, asserting, like Royal Construction and the Minerit manufacturers, that no contract of indemnity existed between Cement Board and Edifice and that Edifice failed to install the Minerit board in accordance with the original construction plans and specifications. Cement Board also asserted that the trial court’s reasoning in dismissing third-party defendants Royal Construction and Oy Minerit Ab and Cem-britt Blunn was applicable to Cement Board, as Edifice’s claims against Royal Construction and the manufacturers were also based in indemnity.

In support of its re-urged motion for summary judgment, Cement Board attached deposition testimony from Dale Green, a Royal Construction foreman who testified that Edifice never provided Royal Construction, Inc. with Cement |4Board’s written instructions for installing the Min-erit board. Cement Board also attached deposition testimony from Clayton Carri-ere, Edifice’s president, who testified that Edifice instructed Royal Construction to deviate from the project’s plans and specifications.

After a hearing on March 25, 2009, the trial court granted Cement Board’s re-urged motion for summary judgment, dismissing Edifice’s claims against it with prejudice. Edifice appeals this judgment.

STANDARD OF REVIEW

This Court reviews summary judgments de novo, applying the same criteria as the district court. Wright v. Louisiana Power & Light, 06-1181, p. 17 (La.3/9/07), 951 So.2d 1058, 1070.

DISCUSSION

Appellant assigns one error for our review: that the trial court erred in granting the re-urged motion for summary judgment in favor of Cement Board. Edifice argues that the trial court erred in granting the motion for summary judgment because the re-urged motion for summary judgment alleged no new evidence or facts; that Edifice is entitled to indemnity from Cement Board; that La. R.S. 9:2771 relieves Edifice of liability; and that Edifice has a right of contribution from Cement Board.

A trial court may grant a re-urged motion for summary judgment, even when no new evidence has been submitted. Francioni v. Rault, 570 So.2d 36, 37 (La.App. 4th Cir.1990). This Court has also held that “denial of a motion for |,-.summary judgment does not preclude [a] mover from reurging the motion on additional grounds.” Keaty v. Raspanti, 96-2839 (La.App. 4 Cir. 5/28/97), 695 So.2d 1085, writ denied, 97-1709 (La.10/13/97), 703 So.2d 614. In this case, in re-urging the motion for summary judgment, Cement Board cited to the testimony of Dale Green, the job foreman for Royal Construction, Inc., regarding installation of the Minerit board in plaintiffs building. This testimony, Cement Board argues, established that Mr. Green did not recall viewing or being provided with any written installation instructions for the Minerit board; rather, all instructions to Royal Construction regarding installation came verbally from Edifice’s employee, Clayton Carriere. Accordingly, we find that the trial court properly considered and granted Cement Board’s re-urged motion for summary judgment.

We also find that the trial court properly granted the motion for summary judgment with regard to the indemnity issues raised by Edifice. Not only did Edifice fail to establish that a contract existed between Edifice and Cement Board that could obligate Cement Board to indemnify Edifice, Edifice also failed to demonstrate that it was entitled to tort indemnity in this case. For Edifice to recover in tort indemnity, Edifice must have been free from fault, as an implied contract of indemnity arises only when the party seeking indemnification bears no fault in producing liability. See Nassif v. Sunrise Homes, Inc., 1998-3198 (La.6/29/99), 739 So.2d 183, 185 (holding that “[i]t has long been held in Louisiana Lthat a party not actually at fault, whose liability results from the faults of others, may recover by way of indemnity from such others”)(quoting Bewley Furniture Company, Inc. v. Maryland Casualty Company, 285 So.2d 216 (La.1973))(emphasis added); see also Sellers v. Seligman, 463 So.2d 697 (La.App. 4th Cir.1985), writ denied, 464 So.2d 1379 (La.1985). Accordingly, “because the party seeking indemnification must be without fault, a weighing of the relative fault of tortfeasors has no place in the concept of indemnity.” Id.

In this ease, Edifice’s president, Clayton Carriere, admitted in his deposition to deviating from the plans and specifications with regard to the installation of the Min-erit board. Mr. Carriere testified that the plans and specifications called for plywood and felt to be installed behind the Minerit board; nevertheless, Mr. Carriere testified that Edifice instructed Royal Construction to substitute gypsum board for plywood, and instructed Royal Construction not to install felt. 17Accordingly, Edifice is precluded from recovery for tort indemnity as a matter of law, as it cannot be disputed that Edifice deviated from the plans and specifications for the Minerit board installation.

Edifice’s position that it cannot be held liable pursuant to La. R.S. 9:2771 also lacks merit because Edifice did not follow the original plans and specifications. In this regard, the Third Circuit’s reasoning in Wilkinson v. Landreneau is persuasive. In Wilkinson, a contractor appealed a judgment of liability for construction of a defective fireplace and chimney. Wilkinson v. Landreneau, 525 So.2d 617, 619 (La.App. 3d Cir.5/11/88). The contractor asserted, inter alia, that he was entitled to immunity pursuant to La. R.S. 9:2771 because he constructed the fireplace and chimney in accordance with the written specifications provided by the plaintiff homeowners. Id. The Third Circuit disagreed, finding that expert testimony established that the contractor did not follow the plans and specifications. Id. at 620. The Court recognized that although the plans and specifications did not account for every detail, such as whether mortar and brick or firebrick should be used, the contractor was not entitled to immunity under La. R.S. 9:2771 “because he did not follow the plans in other respects.” Id.

Finally, Edifice has no contribution claim against Cement Board because Edifice and Cement Board are not solidary obligors; no contract existed between Cement Board and the Association regarding the Minerit board’s installation. Additionally, La. C.C. art. 2324 was amended in 1996 to limit solidary liability to intentional tortfeasors. Hernandez v. Chalmette Medical Center, 2001-0074, p. 8 (La.App. 4 Cir. 2/4/04), 869 So.2d 141, 147, n. 2 (citing Aucoin v. State, Through the Dept. of Transp. & Dev., 97-1938, p. 10 (La.4/28/98), 712 So.2d 62, 67). ^Liability for injuries caused by two or more non-intentional tortfeasors is now a joint and divisible obligation; each tortfeasor is assessed its own portion of fault. M “With the advent of this new policy, the right of contribution among solidary tortfeasors also disappeared since it is no longer necessary in light of the abolishment of solidarity.” Dumas v. State ex rel. Dept. of Culture, Recreation & Tourism, 2002-0563, p. 14 (La.10/15/02), 828 So.2d 580, 538.

CONCLUSION

For the foregoing reasons, the trial court’s judgment is affirmed.

AFFIRMED.

      . Royal Construction, Inc. and Cement Board were not made direct defendants by the Association.

      . Edifice also filed a third-party demand against the Louisiana Insurance Guaranty Association.

      . Edifice also alleged that Cement Board provided incorrect fasteners for the Minerit board.

      . This Court denied a writ application by Cement Board, no. 2008-0872, on August 28, 2008.

      . Oy Minerit Ab and Cembrit Blunn, LTD were not made direct defendants by the Association.

      . In Francioni, this Court considered whether the trial court erred in granting a summary judgment, in the absence of additional evidence, which had previously been denied by another trial judge. Francioni, 570 So.2d at 37. This Court found that the trial court "clearly considered the previous denial” of the motion for summary judgment, concluding:
      Plaintiffs have failed to persuade this court of any procedural bar to the re-urging of the motion for summary judgment. Judge Tobias is not bound by the previous ruling of Judge Plotkin. The previous denial of the motion for summary judgment by Judge Plotkin does not constitute res judicata and does not have the authority of the thing adjudged: it is a non-appealable interlocutory judgment. See Portier v. Thrifty Way Pharmacy, 476 So.2d 1132 (La.App. 3rd Cir.1985); Arnold v. Stupp Corporation, 249 So.2d 276 (La.App. 1st Cir.1971). We find no error in Judge Tobias' ruling on the motion for summary judgment.

        Id.

      . Edifice does not dispute that no written contract existed between Edifice and Cement Board.

      . "A party who demands performance of an obligation must prove the existence of the obligation.” La. C.C. art. 1831.

      . Mr. Carriere testified:
      Q. What is your capacity at Edifice Construction?
      A. President.
      Q. As president of Edifice, did you review the plans and specifications for the project?
      A. Yes.
      Q. As it relates specifically to the Minerit board's place on the outside of the penthouse, did you make any changes to the plans and specifications?
      A. Yes.
      Q. Did you have anyone's approval for those changes?
      A. Yes.
      Q. Who?
      A. Sean Cummings.
      Q. In what capacity did Sean Cummings approve changes to the Minerit board?
      A. He was managing member of Paragon Lofts, LLC.
      Q. What were [the] changes made?
      A. He substituted the plywood for the exterior gypsum board.
      Q. Is exterior gypsum board cheaper than plywood in construction?
      # ⅜ ⅜ * ‡

      A. Yeah, it’s a little bit cheaper ...

        Mr. Carriere further testified:
      Q. If anyone was going to decide to do finishing work on the exterior gyp board, that's a function that would have been within the purview of your company, Edifice, isn't that correct, sir?
      A. Yes.
      Q. That’s not something that you would have anticipated any of your subcontractors would have decided for you; isn't that correct?
      A. Correct.
      Q. You wouldn't have expected [Royal Construction] to have made that decision and it was not within the scope of their contract, isn't that correct, sir?
      A. Correct.
      * * * #
      Q. You would not have expected by client, Royal Commercial [Construction], to install it after you instructed them not to do, correct?
      A. Correct.
      Q. In fact, you agree that you instructed my client not to install felt on this project, isn’t that correct?
      A. Correct.
      ‡ ⅜ ⅜ ⅜
      Q. You spoke about the fact that the decision was made to use exterior gypsum instead of plywood. That's not a decision that my client, Royal Commercial Construction, was involved in; isn’t that correct?
      A. That's correct.
      Q. And it was not within the scope of my client, Royal Commercial Construction's, job function to install plywood on the walls of the penthouse, isn’t that correct, sir?
      A. Correct.
      Q. Their job was merely to follow your instructions and instead to use exterior gyp board as you instructed them; isn't that correct?
      A. Correct.

      .Although Mr. Carriere stated that he decided to instruct Royal Construction not to use felt or plywood, and not to do any exterior finishing of the gypsum board after speaking with one of Cement Board’s employees, Edifice is nevertheless precluded from seeking indemnity from Cement Board as a matter of law, as it is not disputed that Edifice ultimately decided to deviate from the architect’s plans and specifications and instructed Royal Construction to make those changes accordingly. Consequently, Edifice cannot assert that it is a party not actually at fault. See Nassif v. Sunrise Homes, Inc., 1998-3193 (La.6/29/99), 739 So.2d 183, 185.

      . See also Hamway v. Braud, 2001-2364, pp. 4-5 (La.App. 1st Cir.11/08/02), 838 So.2d 803, 806-07 (finding that a repair shop’s owner was precluded from seeking tort indemnity from a towing company who instructed the shop's employees to place transmission parts in a vehicle, resulting in damage to the upholstery, because the repair shop owner's petition for damages admitted that the shop's employees placed the automobile parts in the vehicle).

      . La. R.S. 9:2771 provides:
      No contractor, including but not limited to a residential building contractor as defined in R.S. 37:2150.1(9), shall be liable for destruction or deterioration of or defects in any work constructed, or under construction, by him if he constructed, or is constructing, the work according to plans or specifications furnished to him which he did not make or cause to be made and if the destruction, deterioration, or defect was due to any fault or insufficiency of the plans or specifications. This provision shall apply regardless of whether the destruction, deterioration, or defect occurs or becomes evident prior to or after delivery of the work to the owner or prior to or after acceptance of the work by the owner. The provisions of this Section shall not be subject to waiver by the contractor.

      . An expert testified regarding the defects in tire fireplace and chimney:
      Ronald Vidrine, accepted at trial as an expert in brick masonry by all parties, examined the chimney on several occasions. He testified that there were holes around the cobbling that were not flashed. Salt was coming out of the brick caused by the continuous seepage of water. There was no flashing on the outside where the brick met the wood and also where the cobbling occurred; the absence of flashing was a deviation from the plans. There was a crack along the brick on the outside caused by the absence of an angle iron over the ash dump. The firebrick was laid with conventional mortar instead of fireclay, which was wrong. The brick veneer inside the house contained just one angle iron and there should have been two. Split pavers instead of firebrick was used at the bottom of the chimney. The damper was put in wrong. The cracking on the outside of the chimney was so severe that light could be seen coming through. Mr. Vidrine was of the opinion that the chimney and fireplace were unsafe. It was Mr. Vidrine's opinion that there was no way the job could be repaired; the chimney and fireplace had to be torn out and rebuilt entirely.

        Wilkinson v. Landreneau, 525 So.2d 617, 619 (La.App. 3d Cir.5/11/88).

      . Notably, the contractor in Wilkinson also sought tort indemnity from the bricklayer. Wilkinson, 525 So.2d at 620. The Third Circuit disagreed, reasoning that “[o]nly by proving that he was not actually at fault, and that his liability only resulted from the fault of [the bricklayer], could defendant recover by way of indemnity from [the bricklayer]." Id. Likewise, "[t]he indemnity of a contractor from his subcontractor applies only when the exclusive fault producing liability is the conduct of the subcontractor.” Id. (citing Bewley Furniture Company, Inc. v. Maryland Casualty Co., 285 So.2d 216 (La.1973)).

      .Moreover, Edifice does not allege that Cement Board conspired with Edifice to commit an "intentional or willful act” pursuant to La. C.C. art. 2324. Article 2324 provides:
      A. He who conspires with another person to commit an intentional or willful act is answerable, in solido, with that person, for the damage caused by such act.
      B. If liability is not solidary pursuant to Paragraph A, then liability for damages caused by two or more persons shall be a joint and divisible obligation. A joint tort-feasor shall not be liable for more than his degree of fault and shall not be solidarily liable with any other person for damages attributable to the fault of such other person, including the person suffering injury, death, or loss, regardless of such other person's insolvency, ability to pay, degree of fault, immunity by statute or otherwise, in-eluding but not limited to immunity as provided in R.S. 23:1032, or that the other person’s identity is not known or reasonably ascertainable.
      C. Interruption of prescription against one joint tortfeasor is effective against all joint tortfeasors.


author: MICHAEL E. KIRBY, Judge. MURRAY, J.,

text:
    Brenda VERGES v. DIMENSION DEVELOPMENT CO., INC., Baronne Hotel Investors, L.L.C. and Woodrow Wilson Construction Co., Inc.
    No. 2008-CA-1336.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 10, 2010.

      Wayne J. Jablonowski, Law Office of Wayne J. Jablonowski, APLC, Slidell, LA, August J. Hand, Covington, LA, for Plain-tiffiAppellant.
    R. Ray Orrill, Jr., Denise M. Ledet, Orrill, Cordell & Beary, LLC, New Orleans, LA, for Intervenor/Appellee (Orrill, Cordell & Beary, L.L.C.)
    (Court composed of Judge JAMES F. McKAY, III, Judge PATRICIA RIVET MURRAY, Judge MICHAEL E. KIRBY, Judge DAVID S. GORBATY, Judge PAUL A. BONIN).
   MICHAEL E. KIRBY, Judge.

| TPlaintiff, Brenda Kraft Verges, appeals the trial court judgment awarding fees to her former attorneys, Orrill, Cordell & Beary, LLC (“OCB”), in the amount of $112,850.00 plus legal interest from the date of demand and all costs. For reasons that follow, we amend the trial court judgment (1) to reduce the amount of fees awarded to OCB, and (2) to change the award of interest from date of judicial demand to date of the trial court judgment.

The issue in this case is the amount of fees owed by plaintiff to OCB. Plaintiff filed suit alleging that immovable property owned by her was damaged as a result of construction of an adjacent hotel. She was represented by OCB from September 2001 until the firm withdrew from the case in April 2003. Plaintiffs then-husband, Wade Verges, hired OCB through a power of attorney from plaintiff. Mr. Verges was not a party to plaintiffs suit. Shortly after OCB withdrew from the case, plaintiff retained A.J. Hand and Wayne Jablo-nowski from the firm of Hulse & Wanek. Mr. Jablonowski continued to represent plaintiff after he left Hulse & Wanek. Plaintiffs property damage claim settled in 2007 for $440,000.00.

|2In June 2003, shortly after withdrawing from the case, OCB filed a petition of intervention for attorney’s fees. Attached to the petition was the contract between OCB, plaintiff and Mr. Verges. The contract stated that the fee owed to OCB would be 30% of any settlement, judgment, collection or other recovery received by plaintiff or her ex-husband in the underlying litigation entitled “Brenda Verges v. Dimension Development Co., Inc.” Trial on the intervention was held after the case settled. Testimony was offered by plaintiff, plaintiffs now ex-husband, Wade Verges, attorney Christopher Beary of OCB, and several other defense attorneys who were involved in plaintiffs lawsuit. Much of the testimony centered on the complexity of the case and the amount of work performed by Mr. Beary before his withdrawal from the case.

Following trial, the trial court awarded OCB attorney’s fees in the amount of $112,850.00 plus legal interest from the date of judicial demand and all costs. The trial court stated in reasons for judgment that OCB proved the hourly value of their services to be $112,850.00, which the court found to be fair compensation to OCB. In arriving at this figure, the trial court found that the value of plaintiffs claim was proven to be at its highest immediately prior to mediation in April 2003. The court found that plaintiff increased her demand at the mediation against the advice of OCB, and sought to obtain a net settlement of $650,000.00 and retain ownership of her building. The court accepted Mr. Beary’s testimony that he counseled plaintiff not to take this position, and withdrew from the case when she refused to accept that advice. Although noting that OCB had only obtained an official settlement offer of $175,000.00, the court found that $440,000.00 was an accurate valuation of plaintiffs claim given the fact that plaintiffs own experts testified that her claim was not as substantial as she may have believed.

|aThe trial court found that the standard set forth in Saucier v. Hayes Dairy Products, Inc., 373 So.2d 102 (La.1978), does not apply in this case. We agree. The Saucier case involved a fee dispute between plaintiffs former and successor attorneys, all of whom were hired on a contingency fee basis. Here, we are faced with a situation in which plaintiffs former attorneys were representing her on a contingency fee basis, whereas her successor attorneys represented her on an hourly rate basis. Although OCB initially handled plaintiffs case on an hourly rate basis, OCB agreed to accept the case on a 30% contingency fee basis in September 2002.

The trial court found two Third Circuit cases to be persuasive in this case: Wright v. Tschirn, 2003-1676 (La.App. 3 Cir.6/9/04), 875 So.2d 1037 and Lytle v. Commercial Insurance Company of Newark, New Jersey, 285 So.2d 289 (La.App. 3 Cir.1973). Both cases involved attorneys who were awarded fees for their work performed on behalf of clients with whom they terminated their representation prior to the conclusion of their cases. While this Court is not bound by decisions of other circuits, we note that these cases are distinguishable in that there were no allegations in either of those cases that the attorney’s termination of his representation of his client had any adverse effect on his client’s interests. In the instant ease, OCB terminated its representation of plaintiff in the middle of her case, and plaintiff has alleged that this action prejudiced her because she had to quickly hire new counsel in the middle of her litigation and the lawyers who agreed to take her case charged on an hourly rate basis for their services.

14Plaintiff is not arguing that OCB’s withdrawal from the case should result in no award of attorney’s fees to that firm. However, she argues that the amount awarded is excessive. We agree. There were certain extra expenses that plaintiff incurred as a result of OCB’s withdrawal. A substantial portion of the fees paid to her successor attorneys represented review of work already performed by OCB. Additionally, the successor law firm hired by plaintiff following OCB’s withdrawal charged an hourly rate of $175.00, a higher rate than that initially charged by OCB prior to the contingency fee arrangement.

OCB argues that it withdrew from representing plaintiff in the middle of the case because plaintiff was being unreasonable in her settlement demands. But that was not the reason OCB gave to plaintiff in its letter of April 16, 2003 notifying her of the firm’s withdrawal from her case. The letter, signed by R. Ray Orrill, Jr. and W. Christopher Beary, set forth their opinions as to the value of plaintiffs claim and how they differed from plaintiffs expectations. There is nothing in the letter suggesting that OCB was withdrawing from the case because plaintiff was an unreasonably difficult client. A key paragraph in the letter states:

Consequently, it is time that we make another business decision to withdraw from your representation at this time. We cannot afford to put any more time into this case because it would, in essence, mean that we would be working for free and we have too many other irons in the fire to do what is entailed to get this matter ready for trial and to try it, under the circumstances.

Their letter concluded with the sentence, “We are sorry that we cannot complete this case for you but, as you can readily understand, the numbers just don’t work for us.”

The only evidence to support OCB’s claim that plaintiff was being unreasonable in her settlement demands was the self-serving testimony of Mr. |fiBeary at the trial on the intervention. Mr. Orrill and Mr. Beary spelled out their reasons for OCB’s withdrawal from plaintiffs case in its letter of April 16, 2003, and did not mention any unreasonableness on the part of plaintiff. The letter made clear that OCB was withdrawing from its representation of plaintiff because the case no longer seemed profitable to them.

A lawyer may withdraw from representing a client if the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client. State Bar Articles of Incorporation, Art. 16, Rules of Professional Conduct, Rule 1.16(b)(6). We find that OCB presented sufficient evidence at trial to show that their continued representation of plaintiff would have resulted in an unreasonable financial burden on the firm. Therefore, their -withdrawal from the case was not wrongful.

However, OCB’s decision to withdraw from this case, while arguably in the firm’s best interests, nonetheless had a material adverse effect on plaintiff. We note that Rule 1.16(b)(1) of the Rules of Professional Conduct states that a lawyer may withdraw from representing a client if withdrawal can be accomplished without material adverse effect on the interests of the client. To pursue her claim to its conclusion, plaintiff was forced to retain new counsel, for which she was charged an hourly rate. This resulted in the duplication of some of the work already performed in that plaintiffs successor attorneys had to review all of OCB’s work in order to familiarize themselves with plaintiffs case, in addition to doing the remainder of the work involved up to the settlement of the case. The review of OCB’s work was an expense that plaintiff would not have incurred but for OCB’s withdrawal midway through the case. Additionally, the hourly rate charged by | ^plaintiffs successor counsel was $25.00 higher than the hourly rate charged by OCB before the firm agreed to take the ease on a contingency fee arrangement.

At trial, Mr. Beary testified that he did not maintain contemporaneous time records in this matter once the firm agreed to a contingency fee arrangement. He offered his estimate of the hours of work performed and the fees earned by the firm based on the $150.00 hourly rate that the firm initially charged plaintiff. A written estimate of hours of work performed was introduced into evidence, and included a total amount of $112,850.00 in fees earned on an hourly rate basis. This estimate included $7,100.00 in fees previously waived by the firm in consideration for accepting the case on a contingency fee basis.

There is no mention in the written estimate of the $5,000.00 in fees previously paid to OCB by plaintiff. However, Mr. Beary testified that his estimate of fees was for the work performed by OCB during the period that the contingency fee arrangement was in effect, plus $7,100.00, which represented the approximate amount of fees waived by the firm in consideration for entering into the contingency fee arrangement. Based on this testimony, we conclude that the estimate of fees did not include the $5,000.00 payment previously made by plaintiff.

We have found an error in the calculations provided by OCB in their written estimate of fees earned. In item #4 of OCB exhibit # 15, OCB estimated that the firm spent 306 hours on depositions. At an hourly rate of $150.00, the amount claimed for depositions should have been $45,900.00, not $49,500.00 as stated in exhibit # 15. This transposition error resulted in an increase of $8,600.00 in OCB’s estimate. The corrected total of OCB’s estimate is $109,250.00.

17The trial court is vested with great discretion in arriving at an award of attorney’s fees, and the exercise of this discretion will not be reversed on appeal without a showing of clear abuse of discretion. Filson v. Windsor Court Hotel, 2007-0755, p. 6 (La.App. 4 Cir. 7/23/08), 990 So.2d 63, 67. The trial court accepted the estimates offered by OCB, and awarded OCB $112,850.00 in fees representing the hourly value of their services at a billing rate of $150.00 per hour. With the exception of the $3,600.00 transposition error in OCB’s estimate, we find no abuse of the trial comb’s discretion in its calculation of the hourly value of OCB’s services.

However, we find that the court abused its discretion in not deducting an amount representing fees charged by the successor attorneys in reviewing OCB’s work in order to familiarize themselves with the ease. The billing records of the successor attorneys were introduced into evidence without any testimony. Plaintiff has paid $54,356.12 to her successor attorneys. Our review of their billing records establishes that $15,288.40 of that amount represents review of work performed by OCB. OCB’s withdrawal in the middle of the case caused this review to be necessary. Plaintiff should not have to pay twice for the same work. We find that any additional expense incurred by plaintiff as a result of OCB’s withdrawal should have been deducted from the fees awarded to OCB.

We find the trial court also abused its discretion in not deducting an amount equal to the extra cost plaintiff incurred due to the fact that her successor attorneys billed at an hourly rate of $175.00, rather than the $150.00 hourly rate arrangement she had with OCB prior to the agreement to switch to a contingency fee arrangement. After subtracting the hours earned by the successor attorneys for this | ^duplicative work, 215.85 hours billed at the $175.00 hourly rate remain. This re-suited in an extra cost to plaintiff of $5,396.25.

Accordingly, we amend the trial court’s $112,850.00 award of attorney’s fees by deducting the following amounts: (1) $15,288.40 representing charges by the successor attorneys for review of work performed by OCB, (2) $5,396.25 representing the extra amount plaintiff was required to pay her successor attorneys due to their higher hourly rate of $175.00 and (3) $3,600.00 representing the transposition error in OCB’s estimate of fees earned. The resulting total is $88,565.35.

Plaintiff also argues that the trial court erred in awarding interest on the award of attorney’s fees to OCB. We find that an award of interest is warranted. However, we find that the trial court erred in awarding interest from date of judicial demand.

Shortly after the plaintiffs case settled in 2007, OCB requested that plaintiff deposit $154,933.32 into the registry of the court for purposes of OCB’s June 2003 intervention for attorney’s fees. By order dated October 11, 2007, the trial court granted plaintiffs motion to deposit these funds into the registry of the court. If the amount of attorney’s fees owed to OCB had been ascertainable when the intervention was filed, then OCB would be entitled to interest from the date of judicial demand until the date that these funds were placed in the registry of the court. See, Reeves v. Winborn, 153 So.2d 531 (La.App. 1 Cir.1963). However, in this case, the amount of attorney’s fees due to OCB was not ascertainable until awarded by the trial court. Therefore, OCB is only entitled to interest on the award | nof attorney’s fees from the date of the judgment, and not from the date of judicial demand. Alexander v. Burroughs Corp., 859 So.2d 607 (La.1978).

For the reasons stated above, we amend the trial court judgment to reduce the award of attorney’s fees to OCB from $112,850.00 to $88,565.35. The judgment is further amended to award interest only from the date of the trial court judgment, June 9, 2008. In all other respects, the trial court judgment is affirmed.

AMENDED, AND AS AMENDED, AFFIRMED.

MURRAY, J. dissents in part and assigns reasons.

MURRAY, J.,

dissents in part and assigns reasons.

| j I agree with the majority with regard to the amendment of the judgment relative to legal interest and the conclusion that the trial court abused its great discretion in its award of $112,850 attorney fees to OCB in connection with its representation of Brenda Verges. However, for the following reasons, I disagree with the amount of fees to which it determines OCB is entitled.

Brenda Verges contracted with OCB to represent her on an hourly basis beginning in September 2001. According to the testimony of Christopher Beary, Ms. Verges was struggling to make the hourly payments. She did not pay anything on the invoices for September, October, November, and December of 2001, or January and February of 2002 until March 2, 2002; at that time she made a partial payment of $5,000 leaving an unpaid balance of $2,348.78. She was billed hourly for the months of March, April, June, July, and August of 2002, but as of September 5, 2002, she had not been able to pay anything towards those billings. On that date Ms. Verges and OCB converted their arrangement for the firm’s representation from hourly billings to a contingency fee arrangement. They agreed that the firm would be paid a 30% contingency fee on the amount recovered, excluding any portion of the recovery attributable to the sale of the property at |2issue in the litigation. OCB would waive the unpaid hourly billings totaling $7,162.50. Ms. Verges was to pay all costs as they were incurred in the future.

The firm continued to represent Ms. Verges for another seven months until it notified her that it was terminating its representation on April 16, 2003, the day following an unsuccessful mediation. The firm advised Ms. Verges that the evidence had developed such that the value of her claim realistically had been reduced by more than 30% of that originally placed on the case. As a consequence of the reduced value of the claim and the firm’s appreciation that Ms. Verges was unwilling to adjust her expectations, OCB was making a business decision to withdraw from her representation at that time as it felt that the fee potential of the case would not justify the time necessary to prepare the matter for trial. As OCB explained, based on the circumstances, the firm, essentially, would be working for free; as it explained, it had “too many other irons in the fire to do what is entailed to get this matter ready for trial and try it ...”

In the letter of withdrawal, OCB opined that Ms. Verges “should not have any trouble obtaining other counsel to take over the case” as the bulk of the work had been done by it. It advised Ms. Verges that the firm would file its contract with the court and request an apportionment of fees “from any subsequent settlement or judgment between us and your new counsel; consequently, there will be no additional charge to you.”

Despite having withdrawn from its representation, OCB agreed to continue to work through the negotiation process until new counsel was engaged in July 2003. The ease ultimately was settled for $440,000, which did not include the sale of the property.

|3It is apparent that, at the time it withdrew, OCB anticipated that Ms. Verges would engage another attorney on a contingency fee basis. Had this occurred, one contingency fee would have been paid by Ms. Verges, “the amount of the fee to be determined according to the highest ethical percentage to which the client contractually agreed in any of the contingency fee contracts that he executed.” Saucier v. Hayes Dairy Products, Inc., 373 So.2d 102, 118 (La.1978). That fee would then have been apportioned between OCB and the successor firm “according to the respective services and contributions of the attorneys for the work performed and other relevant factors.” Id. Assuming that the highest ethical percentage to which Ms. Verges agreed was 30%, the attorney fee she would have owed on the $440,000 recovered would have been $132,000.

Unfortunately, Hulse and Wanek (H & W), the successor firm hired by Ms. Verges was not willing to take the case on a contingency basis. Ms. Verges agreed to pay H & W at the rate of $175.00 per hour. According to the detailed billing statements in evidence, the total number of hours expended by H & W from July of 2003 through July of 2007 was 315; the total fee paid to H & W was $54,356.12.

As the majority points out, unlike Saucier, this case does not involve a fee dispute between two firms, each of whom represented the plaintiff on a contingency basis. However, it does not follow that the principles articulated in Saucier cannot provide guidance for addressing the particular situation presented here. In Saucier the court sought to ensure that a client would not be deprived of the right to discharge the attorney for fear of incurring multiple fees, while recognizing the discharged attorney’s right to receive fair compensation for work performed before being discharged. In essence, the Court was concerned that all parties be treated fairly. That concern applies equally to the situation where, as here, an attorney withdraws from its contingency fee representation, and the successor attorney undertakes the representation on an hourly basis. The award of ^attorney’s fees to OCB by the trial court herein does not dispel that concern as it does not appear to be fair to all parties.

OCB put on evidence of the extent of the work done by it during the seventeen months it represented Ms. Verges. Once OCB converted its representation from hourly to a contingency fee basis, it no longer kept detailed time records. Mr. Beary testified that the compilation of time expended by OCB was his “best estimate” looking back through the case file on “a per category basis, trying to identify how many hours would have been spent.” The total hours estimated to have been spent by OCB during its representation of Ms. Verges during the period it represented her on a contingency basis was 681. OCB represented the value of that work, based on $150 per hour, the hourly fee at which they initially contracted with Ms. Verges, to be $105,750. Adding to that the $7,100 unpaid balance that was waived upon entering into the contingency fee arrangement, OCB valued its services to Ms. Verges to be $112,850. The trial court found that OCB has “proved the hourly value of their services to be $112,850,” and found this amount to be fair compensation to OCB for its services.

The majority recognizes a discrepancy in OCB’s itemization; it finds that the corrected total of the claimed value of the OCB services is $109,250.00, a $3,600 discrepancy. The majority further finds that the trial court failed to take into account the adverse effect of OCB’s withdrawal from its representation of Ms. Verges. The majority identifies those consequences as the cost of H & Fs review and necessary duplication of OCB work ($15,288.40) plus the differential between the $25 per hour differential ($5,396.25) between the OCB and H & W hourly rates. The majority, therefore, reduces the award of attorney fees to OCB to $88,565.35.

Were the trial court’s award to stand the total fees paid by Ms. Verges to resolve this claim would be $167,206.12, or $35,206.12 more than the highest fee she would have paid to OCB had it not withdrawn from its representation. Under |5the majority’s amended award the total attorney fees paid by Ms. Verges is $88,565.35 or $10,921.47 more than the fee that Ms. Verges would have owed under the OCB contingency arrangement.

OCB and Ms. Verges entered into a 30% contingency fee contract. Based on the recovery, Ms. Verges would have expected to pay $132,000 for legal services. She was assured by OCB that there would be an “apportionment” of fees between it the successor attorney so that she would incur “no additional charge.”

When OCB agreed to represent Ms. Verges for a 30% contingency fee, it anticipated that its fees, if it were successful, would be capped at that level. At that point, it agreed to take the risk of non-recovery. When it withdrew from its representation of Ms. Verges she was put in the position of having to obtain representation on an hourly basis. Her exposure at that point was not limited to a percentage of her recovery. In fact, she faced exposure for more fees, regardless of whether she was successful. Although she eventually paid her successor lawyer $54,356.12, she potentially would have been responsible for considerably more fees had the matter required trial and appeal.

Although OCB was free to make a “business” decision that it could not afford to continue its representation, it should not now receive a windfall because it withdrew. I, therefore, would cap Ms. Verges’ attorneys fee in this matter at $132,000, the maximum amount to which OCB would have been entitled had it seen the case through to completion. From that I would deduct $54,356.12 the amount that Ms. Verges was required to pay the successor firm to see the case through, and reduce the amount of fees awarded to OCB to $77,643.88.

It is apparent that OCB did a considerable amount of work in preparing the claim for mediation, and continued to negotiate the matter for Ms. Verges even after it withdrew. Although the hourly “best estimate” of 681 additional hours expended in seven months seems generous, it is evident that the work done by |fiOCB was utilized by the successor firm, and contributed to the successful resolution of the claim. Had both OCB and H & W been representing Ms. Verges on a 30% contingency basis there is no doubt, based on the relevant factors in this case, that OCB would have been entitled to a larger portion of the contingency fee than H & W. An award of $77,643.88 is an equitable award to OCB, recognizing its contribution to the successful resolution of the claim, but not rewarding it beyond its bargained for fee for having made a “business decision” to withdraw before completion of the case.

      . According to Mr. Beary, plaintiff and Mr. Verges had only partially paid the firm’s invoices during the time that plaintiff's case was being handled on an hourly rate basis. As part of the agreement to change the fee arrangement from an hourly rate to a 30% contingency fee, OCB agreed to waive the $7,162.50 unpaid balance owed by plaintiff and Mr. Verges as of September 5, 2002.

      . We note that when Mr. Jablonowski continued to represent plaintiff after leaving the firm of Hulse and Wanek, he charged an hourly rate of $150.00. Because this is the same hourly rate charged by OCB prior to the contingency fee arrangement, we have not included the hours charged separately by Mr. Jablonowski in this calculation.

      . According to Mr. Beary, this amount was "paid up” at some point in time.

      . Although Ms. Verges obtained her files from OCB in April 2003, H & W did not do any work on the case until July 2003.


author: WILLIAMS, J. PER CURIAM.

text:
    Derek VAN MARTIN, Plaintiff-Appellee v. Anna Frederick MARTIN, Defendant-Appellant.
    No. 45,007-CA.
    Court of Appeal of Louisiana, Second Circuit.
    March 3, 2010.
    Opinion on Rehearing April 9, 2010.

      Culpepper & Carroll, PLLC by: Bobby L. Culpepper, for Appellant.
    Murchison And Murchison, L.L.C. by: Robert C. Owsley, for Appellee.
    Before WILLIAMS, GASKINS and PEATROSS, JJ.
   WILLIAMS, J.

|,The defendant, Anna Martin, appeals a judgment in favor of the plaintiff, Derek Martin. The trial court denied Anna Martin’s petition for final periodic support, finding her at fault in the breakup of the marriage. For the following reasons, we affirm in part, reverse in part and render.

FACTS

Derek and Anna Martin were married in February 2004 and established their marital domicile in Winn Parish. One child was born of the marriage. Derek filed a petition for divorce on February 21, 2008. However, he did not inform his wife of the petition and they continued living together until February 25, 2008, when he left the marital home and she was served with notice. After a hearing, the trial court ordered Derek to pay child support of $450 and interim spousal support of $850 per month.

Subsequently, Anna filed a petition seeking final periodic support and Derek responded with a rule for final divorce, termination of interim spousal support and a determination of fault. After a hearing, the trial court issued written reasons for judgment finding that Anna verbally abused her step-daughter and was at fault in the termination of the marriage. The court rendered judgment granting a divorce between the parties and denying final periodic support. Anna Martin appeals the judgment.

DISCUSSION

In several assignments of error, Anna Martin contends the trial court erred in finding that she was at fault in the breakup of the marriage. She argues that her treatment and discipline of the husband’s daughter from a former marriage did not constitute sufficient fault so as to preclude an award [pof final periodic support.

In a proceeding for divorce, the court may award final periodic support to a party who is need of support and who is free from fault prior to the filing of an action to terminate the marriage. LSA-C.C. art. 111. A spouse seeking final periodic support must be without fault and the burden of proof is upon the claimant. Jones v. Jones, 35,502 (La.App.2d Cir.12/5/01), 804 So.2d 161. Legal fault consists of serious misconduct that rises to the level of one of the previously existing fault grounds for legal separation or divorce. Legal fault includes adultery, conviction of a felony, habitual intemperance, cruel treatment or abandonment. Jenkins v. Jenkins, 38,873 (La.App.2d Cir.9/22/04), 882 So.2d 705; Lyons v. Lyons, 33,237 (La.App.2d Cir.10/10/00), 768 So.2d 853.

A spouse who petitions for permanent support need not be totally blameless in the marital discord. Only misconduct of a serious nature, providing an independent contributory cause of the breakup, equates to legal fault. Jenkins, supra; Jones, supra. While mere bickering and fussing cannot constitute cruel treatment for purposes of denying final periodic support, a continued pattern of mental harassment, nagging and griping by one spouse directed at the other can constitute cruel treatment. Jones, supra; Lyons, supra. The trial court’s finding of fact on the issue of fault will not be disturbed unless manifestly erroneous. Jones, supra.

In the present case, Derek Martin testified that after filing a petition for divorce he continued to live with his wife for a number of days and did not inform her of his action before he left the marital home and she was ^served with notice. Derek stated that Anna did not abandon the marriage, commit adultery or remain habitually intoxicated. He acknowledged that Anna was not verbally or physically abusive toward him.

Derek testified that he filed for divorce because Anna was mean and abusive to C.M., his minor daughter from a prior marriage. As an example of poor treatment, he stated that Anna once refused to say something positive about C.M. despite his request. Derek testified that he decided to move C.M. into his parents’ home because of Anna’s treatment of his daughter. However, Derek stated that he likely would not have remained in the marriage even if Anna and C.M. had a better relationship. Derek testified that as a means of discipline he had sometimes whipped C.M. with a belt and had also whipped Anna’s children with a belt or switch. Derek stated that he and Anna had discussed attending family counseling, but he made the decision not to go because he did not think it would work.

Anna Martin testified that she worked as a teacher and was the primary caregiver for her five children from a previous marriage, C.M. and the parties’ son. Anna stated that C.M. seemed to have emotional problems and that it was very hard to communicate with her. Anna testified that she argued with C.M. when the child did not take a bath for more than a week or did not place her clothes in the laundry room. Anna stated that she told Derek she needed help in interacting with C.M. and suggested they go to family counseling, but he never agreed to attend. Anna testified that she did not agree with Derek’s decision to send C.M. to his mother’s house and told him several times that the girl needed to return home so they could address |4the situation themselves. Anna stated that she was the person who responded to the phone calls concerning C.M.’s behavioral problems at school. Anna acknowledged that her discipline included spanking C.M. and her own children with her hand and several times with a belt. Anna testified that she suggested counseling to Derek numerous times because she wanted the marriage to work and she was concerned about C.M.’s welfare.

Dr. Nicole Landos, a psychologist, testified that she had seen C.M. for mental health counseling beginning in July 2008. Dr. Landos stated that all of her information was obtained from conversations with C.M. and Derek and that she had not spoken with Anna. Dr. Landos testified that she was not qualified to comment on whether Anna was at fault in the termination of the marriage. Dr. Landos stated that C.M. said she felt ignored in the house.

In order to meet her burden of proof, Anna testified that she cared about C.M. and wanted the marriage to work. Anna stated that she told Derek she needed help in caring for C.M. and suggested that they all participate in family counseling. Anna acknowledged that she criticized C.M.’s behavior and had difficulty communicating with her, but she did not agree with Derek’s decision to send the child to his parents’ house.

Although the trial court found Derek credible, his testimony did not support the court’s finding that Anna’s treatment of C.M. constituted fault sufficient to preclude an award of final periodic support. Derek acknowledged that Anna did not verbally or physically abuse him and she did not abandon the marriage. At trial, Derek asserted that Anna was mean Land abusive to C.M. However, he gave few specifics, stating vaguely that Anna physically abused C.M. in December 2007 and January 2008. Derek stated that he was concerned about Anna’s treatment of C.M. because on one occasion he asked Anna to say something positive about C.M., but Anna told him that she did not like the way C.M was acting and would not make a positive comment to the child. We note that Derek admitted he would have sought a divorce even if there had been no conflict between C.M. and Anna. Thus, the record does not support a finding that Anna’s treatment of the child was an independent cause of the breakup.

In addition, the trial court erred in stating that the applicable standard of fault was “defined” in LSA-C.C. art. 112. Since Article 112 does not contain a definition of fault, we cannot say what standard of fault the court applied in reaching its decision. As previously stated, the fault necessary to preclude permanent support is serious misconduct, such as the commission of a felony, or a continued pattern of mental harassment, nagging and griping directed at the other spouse. The court’s determination of fault was primarily based on a finding that Anna verbally abused the child. However, the one example of such abuse cited by the court was a statement which Anna made to Derek, not to the child. Thus, the court’s finding of a pattern of verbal abuse as the basis of fault is not supported by the record.

Rather, the evidence presented demonstrates that Anna was the person caring for C.M. and the other children on a daily basis and that although Anna was not blameless in the marital discord, the incidents complained of regarding her conduct toward Derek and C.M. did not rise to | (Sthe level of fault sufficient to preclude an award of final periodic support. Consequently, we must conclude that the trial court was clearly wrong in finding that Anna was at fault in the dissolution of the marriage. In reaching this conclusion, we now consider whether the claimant spouse is in need of an award of final periodic support.

Anna contends the trial court erred in failing to award her final periodic support. Anna argues that she is entitled to such an award based on her needs and Derek’s ability to pay.

When a spouse has not been at fault and is in need of support, based on the needs of that party and the other party’s ability to pay, that spouse may be awarded final periodic support. The court shall consider all relevant factors in determining the amount and duration of support, including the income, financial obligations and earning capacity of the parties, their health and age and the duration of the marriage. LSA-C.C. art. 112.

In an action for spousal support, the claimant spouse has the burden of proving insufficient means of support. Expenditures for gifts, recreation or vacation are not considered in determining the necessary expenses of the claimant spouse. Cooper v. Cooper, 31,875 (La.App.2d Cir.5/5/99), 737 So.2d 173; Prestenback v. Prestenback, 08-0457 (La.App. 1st Cir.11/18/08), 9 So.3d 172.

In his appellate brief, Derek asserts that Anna was not in need because she obtained approximately $35,000 from a home equity loan after the couple’s separation. However, we note that Anna used a portion of the loan proceeds to replace property which Derek had removed from the 17marital home, including furniture, beds, a lawnmower, cookware and linen. Since the loan represented a debt, the proceeds will not be considered as income to Anna. Nor will her repayment of the loan be considered an allowable expense.

At the time of the hearing, Anna was 47 years old and was employed as a teacher, the same job she held during the 4-year marriage. She testified that her net income was $2,300 per month and that her monthly mortgage payment was $550. Anna submitted the following list of monthly expenses:

Housing $1,000.00
Food 250.00
Household supplies 150.00
Drug bills 50.00
Dental care 20.00
Doctor bills 30.00
Utilities:
Gas 300.00
Electricity 300.00
Water 80.00
Telephone 185.00
Insurance 300.00
Clothing 150.00
Laundry & cleaning 100.00
Grooming & personal items 50.00
Recreation and special lessons 100.00
Vacation 100.00
Gifts 200.00
Auto expense 300.00
Income tax/accounting fees 20.00
TOTAL $3,685.00

In reviewing the expenses, we find that the amounts for vacation, recreation and gifts should not be included in the calculation of spousal support, since they are not directly related to Anna’s needs. The house note is $550, the amount stated in the testimony. Additionally, a number of claimed expenses should be reduced to a reasonable amount, so the clothing | ^expense is reduced to $100, the telephone expense is reduced to $100, the laundry/cleaning expense is reduced to $50 and the expense for personal care items is reduced to $25. We find the other claimed expenses to be reasonable in light of the relevant factors in this case. Thus, Anna has allowable expenses of $2,625 per month. Since Anna’s expenses exceed her monthly income by the amount of $325, the record demonstrates that Anna is in need of support.

Based upon the evidence contained in the record, Derek has the ability to pay spousal support. At the time of the hearing, Derek was approximately 45 years old. Derek testified that although he was physically healthy, he voluntarily stopped working in April 2007 and since that time his income has been derived from dividends and savings. We agree with a previous finding of the district court that Derek has the capacity to substantially increase his earnings and that a monthly income of $4,250 ($51,000 annually) is reasonably attributable to him for the purpose of calculating spousal support. Considering the parties’ income, expenses, earning capacity, health, age and the duration of their marriage, we conclude that Anna Martin is entitled to an award of final periodic support in the amount of $325 per month for the period of 18 months.

CONCLUSION

For the foregoing reasons, that portion of the trial court’s judgment finding Anna Martin at fault and denying final periodic support is reversed, and the judgment is otherwise affirmed. Judgment is hereby rendered ordering Derek Martin to pay Anna Martin final periodic support in the | namount of $325 per month for the period of 18 months. Costs of this appeal are assessed to Derek Martin.

AFFIRMED IN PART; REVERSED IN PART AND RENDERED.

ON REHEARING

Before WILLIAMS, STEWART, GASKINS, PEATROSS and LOLLEY, JJ.

PER CURIAM.

I,We grant rehearing for the limited purpose of setting a date for commencement of the periodic support payments. The judgment of this court is amended to provide that Derek Martin is ordered to pay Arma Frederick Martin final periodic support in the amount of $325 per month, with payments to begin on the first day of May 2010, and payable on the first day of each subsequent month for a period of eighteen (18) consecutive months. In all other respects, the application for rehearing is denied.

REHEARING GRANTED IN PART AND DENIED IN PART.