author: SAUNDERS, Judge.

text:
    Peggy B. KUEHN v. F.D.H. DEVELOPMENT, INC.
    No. 07-64.
    Court of Appeal of Louisiana, Third Circuit.
    March 21, 2007.
    Opinion Granting Rehearing May 9, 2007.

      Richard D. Moreno, Robinson and Moreno, L.L.C., David F. Dwight, Lake Charles, LA, for Plaintiff/Appellant, Peggy B. Kuehn.
    Henry R. Liles, Lake Charles, LA, for Defendant/Appellee, F.D.H. Development, Inc.
    Court composed of JOHN D. SAUNDERS, JIMMIE C. PETERS, and BILLY H. EZELL, Judges.
   SAUNDERS, Judge.

pOn February 16, 2007, plaintiff-appellant, Peggy Kuehn, filed a motion and order to dismiss the instant appeal and leave to file an application for supervisory writ. The defendant-appellee, F.D.H. Development, Inc., subsequently filed an opposition to the motion filed by the plaintiff and incorporated its own motion to dismiss the plaintiffs appeal based on timeliness. After considering the parties’ motions, we grant the motions to dismiss the appeal and grant the plaintiff leave to file an application for supervisory relief.

The plaintiff filed suit against the defendant-appellee, F.D.H. Development, Inc., seeking injunctive relief and damages associated with the defendant’s construction of town homes in the subdivision where plaintiff resided. Specifically, plaintiff sought a mandatory injunction ordering the destruction of the town homes then under construction by the defendant. After the trial court denied plaintiffs request for a preliminary injunction, plaintiff appealed the ruling. The appeal was assigned docket number 05-1145. On January 4, 2006, this court dismissed appeal 05-1145 and remanded the matter to the trial court for a determination as to whether the preliminary injunction was moot and whether the purchasers of the town homes were indispensable parties.

The trial court conducted a contradictory hearing on these matters on May 22, 2006. At the hearing, the parties stipulated that the preliminary injunction was rendered moot by the sale of the property. The parties also stipulated that the plaintiff was no longer a resident of the subdivision. Thereafter, the trial court found that the purchasers of the subject property were 12not indispensable parties for plaintiffs claim for damages or injunctive relief. In addition, the trial court concluded that plaintiff was not entitled to the mandatory injunctive relief requested, holding that the amendments to the building restrictions which ratified the subject construction were validly adopted. However, the trial court reserved the plaintiffs claim for damages.

A judgment memorializing the trial court’s oral ruling was signed on July 21, 2006. Notice of the judgment was mailed on July 31, 2006. The Plaintiff filed a motion and order for devolutive appeal on August 8, 2006. The record in this appeal was lodged in this court on January 18, 2007. Thereafter, plaintiff filed a motion to dismiss her own appeal, averring that the appeal was taken from an interlocutory judgment.

Although it is unclear from the record on what pleading the trial court was ruling, it is clear that the trial court disposed of plaintiffs claim for injunctive relief and reserved her claim for damages for further proceedings. At first blush, it appears that the judgment which forms the basis of the instant appeal is a partial judgment within the meaning of La.Code Civ.P. art. 1915(B), as it disposed of one but less than all of plaintiffs claims. As such, the judgment would require a designation as a final judgment by the trial court after an express determination that there was no just reason for delaying an immediate appeal prior to being appealable. Because the judgment in the instant appeal has not been so designated, the appeal initially appears to be premature.

However, La.Code Civ.P. art. 3612 provides the following in relevant parts:

B. An appeal may be taken as a matter of right from an order or judgment relating to a preliminary or final injunction, but such an order |3or judgment shall not be suspended during the pen-dency of an appeal unless the court in its discretion so orders.
C. An appeal from an order or judgment relating to a preliminary injunction must be taken, and any bond required must be furnished, within fifteen days from the date of the order or judgment. The court in its discretion may stay further proceedings until the appeal has been decided.
D. Except as provided in this Article, the procedure for an appeal from an order or judgment relating to a preliminary or final injunction shall be as provided in Book III.

Louisiana Code of Civil Procedure Article 1915 appears in Book III. Accordingly, the statute applies to appeals of judgments relating to injunctive relief, but it only applies to the extent that La. Code Civ.P. art. 3612 has not provided a procedure for an appeal. Louisiana Code of Civil Procedure Article 3612 expressly states that an appeal may be taken as a matter of right from an order or judgment relating to a preliminary or final injunction. Thus, the right to an immediate appeal of a judgment relating to a preliminary or final injunction is clearly established in La.Code Civ.P. art. 3612. Therefore, we hold that litigants seeking an appeal of such judgments are not required to undertake the additional procedures for an appeal of a partial judgment provided in La.Code Civ.P. art. 1915(B), even when the judgment relating to a preliminary or final injunction is a partial judgment.

Notwithstanding the foregoing analysis, the plaintiff states that she is not appealing the trial court’s ruling denying the mandatory injunction. In her reply brief filed in response to the defendant’s opposition and motion to dismiss, the plaintiff points out that at the hearing on this matter, she stipulated that the injunctive relief is now moot. Instead, the plaintiff states that her reason for seeking review stems from the wording of the particular judgment signed by the trial court. The plaintiff asserts that both she and the defendant |4submitted proposed judgments for the trial court to sign, and the trial court chose not to sign the judgment proposed by the plaintiff.

Given that the plaintiff states that she is not appealing the trial court’s ruling as it relates to the denial of the injunctive relief, we agree with the plaintiff that the aspects of the judgment challenged by the plaintiff are not appealable, and we dismiss this appeal at plaintiffs cost. Since we find that the appeal should be dismissed on this ground, we pretermit any discussion as to the timeliness of the appeal raised by the defendant in their motion to dismiss the appeal.

The defendant also contends that this court should not afford the plaintiff time within which to seek supervisory relief from the trial court’s ruling as the time delays for seeking such relief have now run. However, we find that since the plaintiff filed a motion for an appeal within the time delays for seeking supervisory writs, justice demands that we afford the plaintiff time within which to file a supervisory writ application with this court. As stated above, this writ application cannot address the merits of the trial court’s denial of the injunctive relief. Otherwise, the plaintiff can challenge the wording of the trial court’s ruling in her writ application. Accordingly, the plaintiff is hereby permitted to file a proper application for writs in compliance with Uniform Rules — Courts of Appeal, Rule 4, no later than April 20, 2007. The plaintiff is not required to file a notice of intent to seek writs nor obtain an order setting a return date pursuant to Uniform Rules — Courts of Appeal, Rule 4-3 as we hereby construe the motion for appeal as a timely filed notice of intent to seek a supervisory writ.

| .APPEAL DISMISSED. APPELLANT IS PERMITTED TO FILE AN APPLICATION FOR SUPERVISORY WRITS.

SAUNDERS, Judge.

|2The plaintiff-appellant, Peggy Kuehn, filed a motion for rehearing in response to this court’s opinion rendered on March 21, 2007. This court’s opinion ordered the dismissal of the appeal on the plaintiffs own motion; however, the court permitted the plaintiff to file a writ application seeking review of the matters which were the subject of the appeal. In addition, the defendant-appellee, F.D.H. Development, Inc., has filed a Motion to Dismiss Writ Application as Moot and has requested within this motion that this court dismiss the plaintiffs motion for rehearing. For the reasons which follow, we now grant the motion for rehearing and order the dismissal of the appeal without permitting the filing of a writ application.

In the motion for rehearing, the plaintiff points out that this court incorrectly interpreted a stipulation into which the parties had entered at a hearing held in the trial court. This court stated that the plaintiff had acquiesced in the dismissal of her claim seeking a mandatory injunction, that is the removal of the allegedly offending building. Upon closer review of the record, we find that the plaintiff did reserve her right to seek a mandatory injunction to command the removal of the condominium complex.

The plaintiffs motion for rehearing, though, only asked that this court amend its opinion to state that the plaintiff acquiesced in the dismissal of the injunctive relief to stop the construction which was sought in the original petition. However, we find that since the plaintiff is also seeking review of the trial court’s ruling denying the mandatory injunction, we must review this court’s finding in its opinion of March 21, 2007, that this matter is only properly reviewable pursuant to this court’s supervisory jurisdiction.

|sWe find that the dismissal of the mandatory injunctive relief is a partial final judgment. The plaintiffs claim for money damages was specifically reserved by the trial court in its ruling denying the mandatory injunction. The other part of the trial court’s ruling subject to review is the trial court’s ruling denying the exception of failure to join parties necessary for a full adjudication of this matter.

Since a portion of the plaintiffs claims remain to be resolved, the judgment denying the request for mandatory injunctive relief is a partial final judgment. Louisiana Code of Civil Procedure Article 1915(B) permits an appeal of a partial final judgment after a finding by the court that no just reason exists to delay an immediate appeal of the partial judgment. The judgment at issue in this matter was not designated by the trial court as appealable. Therefore, an appeal of this judgment is premature at this time.

Ordinarily, this court remands cases from improperly appealed partial judgments for the trial court to make an express determination as to whether an immediate appeal should be permitted. However, in the instant case, we find that a remand for this purpose would be a waste of judicial time. The only matter remaining to be determined in this action is whether the plaintiff is entitled to money damages for the building of this condominium complex in violation of the building restrictions, and if so, how much. We find that it would be a waste of judicial time and effort to permit an appeal of the trial court’s ruling denying the mandatory injunction. Instead, we find that an appeal of this ruling should await a final determination as to the amount of money damages to which the plaintiff is entitled, if any. In this way, the entirety of this matter can be reviewed at one time.

^Moreover, while we recognize that the trial court’s ruling denying the exception of failure to join the proper parties would also ordinarily be subject to supervisory review, we find that in this instance, review of this ruling at this time would also be inappropriate, and we specifically decline to exercise our supervisory jurisdiction over this ruling at this time. As pointed out by the trial court in reaching its decision to deny this exception, the granting of this exception may turn on the issue of whether the trial court has properly dismissed the mandatory injunctive relief. Since this court has held that review of this latter ruling is counterproductive at this time, we find that review of the denial of this exception at this time would, likewise, be counterproductive.

The defendant has filed a motion in this court seeking the dismissal of the plaintiffs motion for rehearing and dismissal of the unified writ application permitted by this court’s earlier ruling in this matter. For the reasons given above, we deny the defendant’s request that this court dismiss the motion for rehearing. However, as stated above, the filing of the writ application is no longer appropriate. Therefore, we grant this portion of the relief requested by the defendant’s motion.

Accordingly, we hereby grant the plaintiffs motion for rehearing. We set aside this court’s prior decision and reinstate the plaintiffs appeal for the purpose of dismissing the appeal as premature at plaintiffs cost.

MOTION TO DISMISS WRIT APPLICATION AS MOOT GRANTED IN PART AND DENIED IN PART. MOTION FOR REHEARING GRANTED. APPEAL DISMISSED.


source: Caselaw Access Project

author: BELSOME, Judge.

license: Public Domain

text:
    RAWBOE PROPERTIES, L.L.C., and Roger T. Boes v. Marc G. DORSEY, Dorsey & Bossetta, and Patrick R. Bossetta.
    No. 2006-CA-0070.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 21, 2007.
    Charles J. Ferrara, Metairie, LA, for Plaintiffs/Appellants.
    Richard A. Weigand, New Orleans, LA, for Intervenor/Appellant, Richard A. Wei-gand, APLC.
    Gustave A. Fritchie III, Darleene D. Peters, Irwin Fritchie Urquhart & Moore LLC, New Orleans, LA, for Defendant/Ap-pellee.
    (Court composed of Judge CHARLES R. JONES, Judge TERRI F. LOVE, Judge ROLAND L. BELSOME).
   BELSOME, Judge.

_|jPlamtiffs-Appellants, Rawboe Properties, L.L.C. and Roger T. Boes, and Inter-venor-Appellant, Richard A. Weigand, APLC, appeal the trial court’s judgment finding that Defendants-Appellants, Marc G. Dorsey, Dorsey & Bossetta, and Patrick Bossetta, committed legal malpractice, but declining to award Appellants damages for the malpractice. We affirm.

FACTS

On October 19, 1997, a building owned' by Rawboe Properties, L.L.C. and Roger T. Boes (hereafter collectively “Mr. Boes”) at 516 Gravier Street in New Orleans sustained damages from a fire that originated in an adjacent building at 309 Magazine Street. Mr. Boes subsequently filed a claim with Westchester Fire Insurance Company (hereafter “Westchester”) for the damages. Approximately ten days after the loss, Westchester arranged for an insurance adjustor, William Moulton, to visit the property, obtain photographs and prepare an estimate of damages. When Mr. Boes indicated to Mr. Moulton during his inspection that he believed a roof exist-' ed over part of the property prior to the loss, Westchester arranged for Leonard Quick, an expert in civil engineering, to inspect the property |¡>and take photographs as well. After the inspections, Mr. Quick and Mr. Moulton estimated that the damages caused by the fire amounted to $26,710.60.

At Mr. Boes’ request, a second estimate of damages was procured by Westchester from an independent contractor, Ron Wimprine of Elmwood General Contractors. Mr. Wimprine’s estimate matched the amount of the estimate prepared by Mr. Moulton and Mr. Quick. Thereafter, Mr. Boes signed a Sworn Statement in Proof of Loss that was executed before a notary public, affirming that the “whole loss and damage” amounted to $26,710.60 and that he was due $21,710.60. Mr. Boes then commissioned his own appraisal from Louis Perrilliat of Construction South, Inc. Mr. Perrilliat’s estimate, dated January 29, 1999, totaled $116,140.00, and included several items that were not listed on West-chester’s two estimates. Mr. Boes subsequently hired an attorney, Marc Dorsey of Dorsey & Bossetta, to assist in obtaining this amount from Westchester.

During the course of his representation, Mr. Dorsey issued two letters to West-chester: one dated February 9, 1999 and the other dated September 13, 1999. The February 9 letter stated that the damages to the subject property as a result of the October 19, 1997 loss amounted to $116,140.00; a copy of the estimate was attached to the correspondence. In response, counsel for Westchester, Mr. C. Michael Johnson, stated in a March 4,1999 letter that Westchester would be closing its file, as the only unresolved issue was the pending litigation to resolve allocation of the final payment by Westchester. Mr. Dorsey’s subsequent September 13, 1999 letter to Westchester referenced the February 9, 1999 [..¡correspondence in addition to the previously forwarded estimate for $116,140.00, and demanded the claim be adjusted properly or that a lawsuit would follow. Mr. Johnson responded for West-Chester on October 4, 1999 that the claim for damages resulting from the October 19, 1997 loss had already been paid by Westchester, and that moreover, multiple claims could not be made for the same loss.

Mr. Dorsey then filed suit against West-chester seeking payment for damages based on Mr. Perrilliat’s January 1999 estimate. Appellants’ policy, however, explicitly required that any supplemental claims be made within two years of knowledge of the date of the loss. Specifically, the Westchester policy provided that “no one may bring a legal action against us under this Coverage Part unless ... 2. The action is brought within 2 years after you first have knowledge of the loss.” Mr. Dorsey did not file suit until after the two-year deadline had passed, on December 29, 1999.

That suit was removed by Westchester to the United States District Court for the Eastern District of Louisiana. Westches-ter filed a Motion for Summary Judgment, arguing not only that the cause of action had prescribed, but also that Mr. Boes had previously accepted payment and executed a release to Westchester for any and all damages caused by the fire. After West-chester filed its Motion for Summary Judgment, Mr. Boes terminated Mr. Dorsey’s representation and hired Richard Weigand. Westchester’s Motion for Summary Judgment was ultimately granted by the Eastern District on December 18, 2000. In its Order and Reasons, the Eastern District found that Westchester was not required to unconditionally render payment for the October 19, 1997 loss, and therefore, Westchester’s |4conditional tender of $21,710.60 coupled with Mr. Boes’ voluntarily signed Sworn Statement and Proof of Loss and acceptance of the check was a proper settlement for Mr. Boes’ claim; that the term “legal action” and other policy language regarding the two-year prescriptive period in which to file suit was not ambiguous; and finally, that pursuant to the policy language, the correspondence Mr. Dorsey issued to Westches-ter did not constitute “legal action” sufficient to interrupt the two year prescriptive period, and that Mr. Boes’ right to assert a supplemental claim had prescribed. The decision was thereafter affirmed by the U.S. Fifth Circuit Court of Appeals.

PROCEDURAL HISTORY

Mr. Boes filed a malpractice suit against Appellees on February 2, 2001, and Mr. Weigand filed a Motion to Intervene on April 23, 2002, requesting costs and attorney’s fees. Mr. Boes and Mr. Weigand (hereafter collectively “Appellants”) also filed a Partial Motion for Summary Judgment regarding the issue of liability. The trial court granted Appellants’ Motion for Summary Judgment, finding Mr. Dorsey liable for legal malpractice. The court further held that the amount of damages caused by the malpractice would be determined at trial. A trial was thereafter held on April 15, 2004 to determine the issue of damages.

|fiThe trial court ultimately held that the Appellants suffered no damages as a result of the alleged malpractice, because Appellants were unable to prove that the additional damages contained in Mr. Perrilli-at’s estimate were damages resulting from the October 19, 1997 fire. Thus, the trial court reasoned, Appellants would not have succeeded at trial in establishing that the supplemental damages claimed were caused by the October 19, 1997 loss. Accordingly, the trial court declined to award Appellants damages or attorney’s fees. This appeal followed.

STANDARD OF REVIEW

A trial court’s factual determinations are reviewed by an appellate court under the manifest error-clearly wrong standard. Stobart v. State, through Dept. of Transp. and Dev., 617 So.2d 880, 882 (La.1993). Additionally, when reviewing a trial court’s decision regarding general damages, an appellate court must not assess what it determines to be an appropriate award in a particular case, but must review the trial court’s judgment under the abuse of discretion standard. Andrus v. State Farm Mut. Auto. Ins. Co., 95-0801 (La.3/22/96), 670 So.2d 1206, 1210 (citing Reck v. Stevens, 373 So.2d 498 (La.1979)). Thus, an appellate court must accord a great deal of deference to the trial court with respect to general damage awards. Id.

DISCUSSION

Assignment of Error # 1

In their first assignment of error, Appellants allege that the trial court legally erred in failing to award attorney’s fees as an element of damages. We disagree. This assignment of error is addressed infra in our evaluation of the Appellants’ fourth assignment of error.

1 crAssignment of Error # 2

In their second assignment of error, Appellants allege that the trial court erred by not requiring Appellees to provide proof negating Appellants’ claim. We disagree.

The trial court, in its Reasons for Judgment, stated that Mr. Boes “would not have been able to prove at trial that the fire caused the damages for which he sought payment.” The trial court reached this conclusion after hearing extensive testimony and reviewing evidence from Mr. Perrilliat, Mr. Moulton, and Mr. Quick, all of whom personally inspected the subject property and prepared estimates of the damages; after hearing detailed testimony from Mr. Boes and from Mr. Weigand; and finally, after hearing testimony from Mr. Richard Fraser, who testified as an attorney and expert in insurance defense.

Mr. Moulton, who testified as an expert insurance adjustor, and Mr. Quick, who testified as an expert in civil engineering, both testified they did not observe any evidence of numerous items of damages that Mr. Boes later alleged had occurred as a result of the fire, to-wit: damage to windows on the rear wall of the property; destruction of a roof over the patio area of the property; damage to steel shutters; damage to stone lintels in some of the window openings; and 17damage to painting and/or waterproofing on parts of the building. Mr. Moulton further testified that had the surplus items on Mr. Perrilliat’s original estimate been removed, that the remaining amount necessary for repairs on Mr. Perrilliat’s estimate closely matched the estimates prepared by both Mr. Moulton and Mr. Wimprine. Put another way, had Mr. Per-rilliat drafted his estimate based upon the same parts of the building that Mr. Moul-ton, Mr. Wimprine and Mr. Quick identified as being damaged as a result of the fire, the damage amounts on the estimates would have been nearly identical.

Additionally, both inspections of the damaged property by Mr. Quick and Mr. Moulton occurred within days of the loss; conversely, Mr. Perrilliat’s inspection took place approximately one year and three months after the loss. Moreover, Mr. Per-rilliat testified that because he had not visited the property prior to the loss, he relied strictly upon representations made by Mr. Boes regarding what specific items existed prior to the fire (including a roof) and what items had been damaged as a result of the fire.

Finally, none of the correspondence sent by Mr. Dorsey to Westchester indicated that Mr. Boes was attempting to file a supplemental claim, or instructed West-chester to disregard the items on the estimate that had previously been settled and paid; instead, each of Mr. Dorsey’s correspondences merely referenced the $116,140.00 amount, attaching the estimate drafted by Mr. Perrillat, and demanded Inpayment. The estimate attached to Mr. Dorsey’s correspondence included numerous items of damages that had, in fact, already been settled and paid in full by Westchester. Not surprisingly, West-chester viewed Mr. Dorsey’s demands as duplicate claims, or multiple claims for the same loss, which Westchester plainly indicated in its correspondence through Mr. Johnson that it would not pay. The October 4, 1999 letter from Mr. Johnson in response to Mr. Dorsey also posed a number of questions to Mr. Dorsey regarding his nonspecific demands, to which Mr. Dorsey did not respond; instead, Mr. Dorsey filed the lawsuit against Westchester on December 29, 1999.

Thus, after reviewing all of the evidence and hearing all the testimony, the trial court determined that Mr. Boes would not have prevailed on his original claim with Westchester. We find that the record in this case does not show that the trial court failed to require Appellees to provide proof negating Appellants’ claim; to the contrary, Appellees affirmatively proved at trial that Mr. Boes would not have succeeded on his original lawsuit against Westchester by putting forth a substantial amount of evidence to that effect. Accordingly, after hearing testimony and reviewing evidence from both parties, the trial court was persuaded by Appellees in this case, and we are not in a position to substitute our judgment for that of the | afactfinder. Therefore, we find that this assignment of error is without merit; indeed, whether the trial court required Ap-pellees to negate Mr. Boes’ claims or not, Appellees did, in fact, provide ample evidence to demonstrate that Appellants were not entitled to damages or attorney’s fees in this case, despite the finding of malpractice.

Assignment of Error # 8

In their third assignment of error, Appellants allege that the trial court erred by disregarding Mr. Boes’ testimony. We find nothing in the record that suggests the trial court disregarded Mr. Boes’ testimony. Therefore, we find that this assignment of error is without merit.

Assignment of Error # J

Finally, in their fourth assignment of error, Appellants argue that trial court erred by requiring Appellants to try a case within a case. We disagree.

The trial court held a trial in this case to determine whether or not Appellants were owed damages as a result of Mr. Dorsey’s malpractice; this necessary showing of damages for Appellants to recover did not amount to a requirement to try a “case within a case.” Therefore, we find that this assignment of error is without merit.

Appellants’ reliance upon Jenkins v. St Paul Fire & Marine Ins. Co., 422 So.2d 1109 (La.1982) and Finkelstein v. Collier, 93-999, (La.App. 5 Cir. 4/14/94) 636 So.2d 1053, for this proposition is misplaced. While the court in Jenkins Instated that proof of failure to timely assert a claim constitutes prima facie evidence that an attorney’s negligence has caused the client “some loss,” Jenkins, 422 So.2d at 1110, this does not automatically translate to a loss for which a party could have recovered monetary damages. Likewise, the fact that the Appellees presented evidence at trial sufficient to overcome Appellants’ allegations of damages that were incurred as a result of Mr. Dorsey’s malpractice does not indicate that the trial court required Appellants to try a “case within a case.”

In this case, the trial court found that while Appellants successfully established that Marc Dorsey did, in fact, commit malpractice, that Appellants did not successfully demonstrate that any damages were incurred as a result of his malpractice. Additionally, the trial court did not find that any damages were incurred by Appellants for action that were required in order to mitigate or correct Mr. Dorsey’s error. We find that the trial court was not manifestly erroneous in making these determinations. Therefore, we affirm the trial court’s decision that Appellants proved no damages for which they could have successfully recovered.

It follows, then, that Appellants are also not entitled to attorney’s fees and costs. Appellants’ argument that Mr. Weigand was hired to do what Mr. Dorsey could not is without merit. No matter what course of action Mr. Weigand took, the time period in which to file suit for a supplemental claim had lapsed by the time Mr. Weigand had been retained by Mr. Boes; this fact remains unchanged. | n Accordingly, we are in agreement with the trial court’s decision declining to award attorney’s fees in this particular case.

CONCLUSION

The judgment of the trial court in favor of the Appellees on the issue of damages is hereby affirmed.

AFFIRMED.

      . The estimate was prepared in November 1997.

      . Mr. Wimprine did not testify at trial.

      . This amount was based on the damage estimate of $26,710.60 less the policy's $5,000.00 deductible.

      .Mr. Boes was in the process of divorce proceedings at this time, and the initial check was apparently issued to his estranged wife in error.

      . Emphasis added.

      . The court referenced La.Rev.Stat. Ann. § 22:658 (West 2000) and La. R.S. 22:1220 for the proposition that with regard to a "reasonable disagreement" between an insured and an insurer, the failure of the insurer to pay within the delays provided by law subjects the insurer to liability for penalties for the claim as a whole, and the insurer is required to unconditionally tender payment for the undisputed part of the claim. The court found, however, that in this case, "there was not an express disagreement between the insured and the insurer” because Mr. Boes "did not object to either appraisal [procured by Westchester] and voluntarily signed a subro-gation receipt, which reflected the amount contained in each appraisal.” Therefore, because Westchester was not required to make an unconditional tender for Mr. Boes' damages, the court concluded that "Westchester’s conditional tender for full and final settlement was a proper payment of [Mr. Boes’] claim.”

      . The court further noted that because the policy language was not ambiguous, that there was no confusion as to what actions were necessary to interrupt the two-year prescriptive period.

      . The court noted that Mr. Boes “failed to present evidence that the claim was in dispute at the time of the settlement” and that "under the plain terms of the contract, [Mr. Boes’] claims prescribed.”

      . Mr. Dorsey filed an opposition to the motion for summary judgment and a cross-motion for summary judgment.

      . Mr. Moulton testified at trial that he observed damage to a window in the front (the Gravier Street side) of the building, where the firemen gained access to the building, but that he did not recall seeing any damage any windows on the rear wall of the property.

      . Mr. Quick testified in detail regarding his observations of the damaged property. Specifically, Mr. Quick testified that he made an exhaustive inspection of the entire property and all of the rubble for any evidence of a roof and found none, nor could he find evidence of a roof that had collapsed, and he thus conclusively determined that no roof had existed on the subject property prior to the loss. Moreover, Mr. Moulton testified that when confronted with the lack of evidence of a roof, that Mr. Boes verbally agreed at the time of his inspection that there was no roof prior to the fire. Likewise, Mr. Moulton testified that during his inspection, he did not see evidence in the debris to indicate that a roof existed.

      . Mr. Mouton testified at trial that he observed four shutter frames that were located high on the building, but observed no evidence of steel shutters.

      . Mr. Quick and Mr. Moulton both testified at trial that they observed no damage to the lintels that would have occurred as a result of the fire.

      . Moulton testified at trial that if the building had, in fact, been either painted or waterproofed, that based on his observation of the condition of the masonry, it had not been done for decades.

      . We also note that Mr. Perrillat did not testify either as an engineer or an expert in insurance adjustment.

      . Mr. Perrilliat ultimately wrote two estimates for Mr. Boes; the second estimate, dated November 19, 2002, was rewritten to include the increase in the cost of labor and materials over the passage of time.

      . In the October 4, 1999 letter to Mr. Dorsey, Mr. Johnson stated, "I am sure you understand that multiple claims cannot be made on the same loss that has been resolved and paid.”

      . Mr. Johnson requested that “if you persist on making multiple demands for payment for the same loss already paid that you provide the following information to Westchester Fire Insurance Company....” A list of ten questions followed, requesting additional information, such as: on what grounds Mr. Dorsey was specifically basing his contention that Westchester should pay twice for the same loss; whether the insureds who were on the policy were in dispute; whether Mr. Boes has an additional right independent of the claims previously submitted for the loss that had been paid by Westchester; whether Westches-ter had been previously instructed to not make a payment to the insureds; or whether Mr. Dorsey was asserting that the previous claim submitted on the loss was a false or fraudulent claim.

      .We note that Mr. Boes testified at length on two separate occasions during the trial; the second examination was conducted by counsel for Appellants in order to elicit further testimony from Mr. Boes regarding the property’s common wall and was conducted over Appellees’ objections.

      . While we agree with the Jenkins court's observation that "it is unlikely [that an] attorney would have agreed to handle a claim completely devoid of merit," Jenkins, 422 So.2d at 1110, we note the fact that simply because an attorney takes on a particular case does not guarantee that the claim has merit, nor does it guarantee that the outcome of the litigation on the claim will result in a monetary judgment, or even a judgment favorable to the client.


author: CHARLES R. JONES, Judge. LOMBARD, J.,

text:
    Curtis Jude LAWRENCE on Behalf of his Minor Child Curtis Joseph LAWRENCE v. ST. AUGUSTINE HIGH SCHOOL, Father Joseph Doyle, Father Edward Chiffriller, Father John Raphael, Jr. and the Josephite Community.
    No. 2007-CA-0263.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 21, 2007.

      Clifton M. Davis III, Trahan & Davis, L.L.C., New Orleans, LA, for Plaintiff/Ap-pellee.
    J. Marc Vezina, Sean R. Dawson, Andrea C. Caplan, Nadia T. Torregano, Vezi-na and Gattuso, L.L.C., Gretna, LA, for Defendant/Appellant.
    Court composed of Judge CHARLES R. JONES, Judge JAMES F. McKAY III, Judge MICHAEL E. KIRBY, Judge MAX N. TOBIAS JR., and Judge EDWIN A. LOMBARD.
   CHARLES R. JONES, Judge.

I iThe Appellant, St. Augustine High School, which suspended a student for an infraction which violated the student handbook, appeals an adverse judgment in favor of the Appellees. We Reverse.

Facts and procedural history

Curtis Joseph Lawrence (“Curtis Lawrence”) is a senior currently matriculating at St. Augustine High. During the summer break between his junior and senior years, Curtis Lawrence was given a reading assignment and required to write a paper based upon the novel, Pride and Prejudice. The assignment was required of all seniors and was scheduled to be turned in by September, 2006. Since Curtis Lawrence was enrolled in an honors English class, the deadline was extended until December 9, 2006.

However, St. Augustine charged Curtis Lawrence with plagiarism by sourcing material from the Internet, verbatim, without appropriate citation to the authority. Plagiarism is in direct violation of the student handbook and is clearly defined therein. St. Augustine charged that Curtis Lawrence also gave a copy of |2his paper to another student, who in turn copied the paper and turned it in as his own work.

Ms. Sara Butler, an English teacher, upon noticing similarities between the papers, gathered them and brought them to Father John Raphael, the Principal of St. Augustine High School. Fr. Raphael is also the Disciplinarian for the school as well. After reviewing the papers, both Fr. Raphael and Ms. Butler agreed that plagiarism had occurred in a number of cases, eventually involving 14 seniors. Ms. Butler also confronted Curtis Lawrence and another student, but Curtis Lawrence and the student denied that plagiarism had taken place. Ms. Butler then referred the matter to Fr. Raphael for consideration.

After his review of the papers, Fr. Raphael was also convinced that plagiarism had occurred and confronted all of the students in question, along with several other members of the faculty and administration of St. Augustine. Twelve students fully admitted to the plagiarism and were suspended for one day, and received a nine-week Routine Disciplinary Probation, as provided for in the student handbook. However, the remaining two students, Curtis Lawrence and another student, refused to acknowledge or admit to the plagiarism offense, and were notified to contact their parents.

On December 14, 2006, Mr. Lawrence, the named Petitioner/Appellee and father of Curtis Lawrence, arrived at St. Augustine and met with Fr. Raphael, Ms. Butler, and several members of the administration. Mr. Lawrence refused to acknowledge that his son plagiarized material, despite evidence to the contrary. Additionally, Curtis Lawrence and another student refused to disclose who had | ?,copied the other’s paper, nor would they provide any other information in furtherance of the investigation.

Curtis Lawrence and the other student, as well as the 12 remaining students, were each given a routine one-day suspension, which was served on Friday, December 15, 2006. Incidentally, each of the students also received a grade of zero for the assignment. Section C, paragraphs 4 and 5 of the student handbook provide explanations of disciplinary terms as follows:

4. SUSPENSION

A suspension as a sanction issued to a student who has violated a Class C rule. The length of the suspension depends on the severity of the violation. Generally, suspensions are for one to 5 days. Any assignments missed during the suspension will be made up at the discretion of the teacher. Three or more repeated uniform infractions will result in a Saturday detention. Continued infractions can lead to suspension.
The Principal and Assistant Principal at St. Augustine High School each shall have the authority to suspend any student at St. Augustine High School when behavior warrants such a punishment. The parents or guardian of any student who was suspended from St. Augustine High School shall be notified immediately, either orally or in writing, that the student has been suspended from St. Augustine High School.
A suspended student will automatically be placed on routine disciplinary probation as a condition for his return to school.
5. Disciplinary Probation

ROUTINE

After suspension student will be placed on Routine Disciplinary Probation for a period of nine weeks.
⅝ 4A student on Routine Disciplinary Probation may not publicly represent the school in any activity, nor may he participate in extra-curricular meetings or practices while on probation. Parents/guardians and student must sign a disciplinary contract when the period of suspension is ended in order for the student to return to school. If a student commits a Class C or Class D violation, or any other serious violation while on probation, he will be dismissed immediately.

SPECIAL

Special disciplinary probation is reserved for students who have been readmitted to St. Augustine after dismissal, or another serious offense that may have warranted dismissal. It is up to the discretion of the Principal to determine whether or not a student will be admitted under the condition of being placed on Special Disciplinary Probation. Like Routine Disciplinary Probation, this student may not publicly represent the school in any activity, nor may he participate in extra-curricular meetings or practices while on probation.
1. Disciplinary Probation lasts for one year from date of infraction.
2. Any teacher can recommend that a student be placed on Disciplinary Probation.
3. If a student on Disciplinary Probation commits a Class C or Class D violation, he may be dismissed from the school.

On the same day, Curtis Lawrence’s mother and grandmother came to the school to meet with Fr. Raphael, and brought the Internet source from which the paper originated. The source document showed that the paper was copied verbatim by Curtis Lawrence, and hence, the other student. After viewing the papers, Mrs. Lawrence acknowledged to Fr. Raphael that the paper had been plagiarized, under the definition contained in the Student Handbook. However, Mrs. Lawrence attempted to seek to have Curtis Lawrence relieved of his probation requirement, |swhich would have prevented him from playing on the basketball team, of which he was a member. Curtis Lawrence’s probation, which barred him from publicly representing the school in any activity, also affected his ability to play on the basketball team.

On December 18, 2006, Fr. Raphael conducted another meeting with several members of the school’s Administration. The Lawrence family, along with Curtis Lawrence and the other student, along with his mother, were present at the meeting. Fr. Raphael advised Curtis Lawrence and the other student that if they did not admit their wrongdoing or identify who had copied the other’s paper, that they would receive a Special Disciplinary Probation instead of a Routine Disciplinary Probation. Curtis Lawrence’s parents, as well as the parents of the other student, pleaded with their sons to admit their wrongdoing, but to no avail.

Fr. Raphael testified that confronted with the defiance and sarcasm of the two students, and further considering the evidence of plagiarism, he imposed the Special Disciplinary Probation upon the two students instead of the Routine Disciplinary Probation.

Mr. Lawrence lodged both a verbal and written appeal to Father Joseph Doyle, the President of St. Augustine High School. Fr. Doyle conducted an investigation and affirmed the discipline that was imposed. In addition, Mr. Lawrence appealed to Father Chiffriller, the Superior General of the Josephite Priests in Baltimore, Maryland. Fr. Chiffriller elected not to intervene and affirmed the imposition of the discipline against Curtis Lawrence and the other students.

On January 17, 2007, Mr. Lawrence filed a petition for injunctive relief, which alleged irreparable harm because Curtis’s probation prohibited his 1 ^participation in any event for which he could represent the school, and requested a temporary restraining order, which was granted by the district court. The restraining order was subsequently extended until the hearing could be held on February 8, 2007.

The injunction hearing was conducted as scheduled, at which time the district court, in oral reasons for judgment, dissolved the temporary restraining order as to the imposition of the “Routine Disciplinary Probation,” but the district court imposed and enjoined St. Augustine from enforcing the “Special Disciplinary Probation” against Curtis Lawrence, finding that the actions of Fr. Raphael were arbitrary. The judgment was subsequently signed by the district court on February 23, 2007. A Notice of Appeal was timely filed, followed by a Motion for Expedited Appeal. St. Augustine also filed a Motion for Expedited Appeal with this Court, which was granted on March 2, 2007.

In the instant expedited appeal, St. Augustine maintains that the district court erred in enjoining the school from imposing discipline against Curtis Lawrence, and that it was error in finding that irreparable harm existed under La. C.C.P. art. 3601. Further, St. Augustine argues, it was error by the district court by involving the court in the inner workings of a private educational institution, in contravention of the legal precedent of this court.

Discussion

In its first assignment of error, St. Augustine seeks review of the district court’s order which enjoined it from enforcing discipline against Curtis Lawrence. St. Augustine contends that although the district court found a sufficient basis for | imposing Routine Disciplinary Probation against Curtis Lawrence for his plagiarism, it enjoined St. Augustine from imposing “discipline viewed necessary by the Appellant to carry out its goal, mission, and objective served by its disciplinary system.”

Mr. Lawrence sought an injunction pursuant to La.C.C.P. art. 3601(A), which provides that “[a]n injunction shall be issued in cases where irreparable injury, loss, or damage may otherwise result to the applicant, or in other cases specifically provided by law.” The petition set forth that “[pjlacing the petitioner on Special Disciplinary Probation has caused irreparable harm, and that he is unable to complete the basketball season and will be deprived of the opportunity to compete for and receive an athletic scholarship.” The period of Routine Disciplinary Probation commenced on December 18, 2006, the day on which the students had conferences with the school administration upon their readmission, post the one-day suspension. Hence, the routine probation imposed by St. Augustine would have last for approximately nine-weeks from December 18, 2006. Mr. Lawrence maintains that Curtis Lawrence would have missed out on opportunities to be offered basketball scholarships due to his probation.

Although each of the students were placed under Routine Disciplinary Probation, the commencement of this legal action by Mr. Lawrence, and the district court’s subsequent judgment granting Mr. Lawrence’s injunction as to Special Disciplinary Probation resulted in Curtis Lawrence not serving any probation while the other students have served their probation. Nevertheless, the district court also noted that the one-day suspension and Routine Disciplinary | «Probation should be imposed on the students equally. The district court acknowledged in its oral reasons for judgment, that the Routine Disciplinary Probation was not applied in an arbitrary nor capricious manner as to Curtis Lawrence nor any of the other students. The district court noted:

“Accordingly, that suspension and disciplinary action should be imposed on all the young men equally. And this young man would have to complete his sentence, so to speak, just as all the rest have done.
To the extent that he has served a part of this, and that was behind him at the time this action was filed, certainly, he deserves full credit for that. And under the order of the Court, and as the judgment will reflect, should have it.
But while the process was interrupted by the court for purposes of the restraining order litigation, he did not served that suspension. To that extent he must complete the discipline as imposed.

Additionally, the judgment in this matter reads:

IT IS HEREBY ORDERED, ADJUDGED, AND DECREED, that the preliminary injunction issued in the above caption matter be and is hereby dissolved forth with as to the defendant, St. Augustine High School, regarding the imposition of the suspension and Routine Disciplinary Probation against Curtis Lawrence for the reasons orally assigned....

The district court did not find any irreparable injury to warrant the issuance of a permanent injunction against St. Augustine to prevent the school from imposing Routine Disciplinary Probation. In fact, the district court noted:

“... the Court has found that when tested against that standard, the initial imposition of the discipline to all of the young men, including Mr. Lawrence, was not arbitrary or capricious, nor did it lack due process.

Thus, for the reasons discussed above, we find that this assignment or error is moot, as the district court dissolved the preliminary injunction against St. RAugustine upon a finding that the Routine Disciplinary Probation and suspension were even handed, and lacking in arbitrariness or capriciousness.

In its second assignment of error, St. Augustine argues that the district court erred by involving itself in the inner workings of a private educational institution, in contravention of the holdings of this Court in Flint v. St. Augustine and Ahlum v. Tulane. St. Augustine avers that this Court has maintained that judicial involvement in the inner workings of a private educational institution should be “severely-limited,” and cites Flint v. St. Augustine High School, 323 So.2d 229 (La.App. 4th Cir.1976), cert. denied, 325 So.2d 271 (La.1976) and Ahlum v. Administrators of Tulane Educational Fund, 617 So.2d 96 (La. App. 4th Cir.,1993), cert. denied, 624 So.2d 1230 (La.1993).

St. Augustine argues on appeal that the standard of review is de novo because the district court committed an error of law and misapplied the limitations of judicial involvement in the workings of a private educational institution.

The proper standard of review for a Louisiana appellate court is whether the trial court is manifestly erroneous or clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989). While the manifest error standard applies to our review of facts found below, we are required to examine the record as well for legal error. Where an error of law taints the record, we are not bound to affirm the judgment of the lower court. Id. at 844. Furthermore, when a trial court makes one or more prejudicial legal errors which interdict the fact-finding process, the manifest error standard is no longer applicable, and the appellate court is obliged to make its own independent, de novo review of the record if such is complete. Evans v. Lungrin, 97-0541, 97-0577, p. 7 (La.2/6/98), 708 So.2d 731, 735; McLean v. Hunter, 495 So.2d 1298, 1303-04 (La.1986). The Supreme Court stated in Evans: “Legal errors are prejudicial when they materially affect the outcome and deprive a party of substantial rights.” Evans, 708 So.2d at 735.

10In re Succession of Sporl, 2004-1373 p. 4, (La.App. 4 Cir. 4/6/05), 900 So.2d 1054, 1058.

In Flint, two students who were expelled from a private high school because of a second violation of the school’s no smoking rule, sought relief. The district court rendered judgment, which enjoined the school from expelling the students, and ordered the students reinstated. The school sought certiorari. On review, this Court held: (1) that the district court could not judicially discard the fact that the principal of the school had given actual warning to one of the students prior to the violation which resulted in the student’s dismissal; Id. at 234. (2) that the school was entitled to a very strong presumption that its internal administrative actions were taken in absolute good faith and for the mutual best interest of the school and the student body; and that procedures followed by the school in dismissing the students contained the necessary minimum due process safeguards. Id. at 235. The matter was reversed and rendered.

In Ahlum, a private university was enjoined by the district court from imposing disciplinary sanctions against one of its students for violation of the student code of conduct. The university appealed. This Court held that: (1) the decision of a private university could be reviewed only for arbitrary and capricious actions; Id. at 99, and that (2) neither the procedures employed nor the evidence relied on were deficient so as to render the university’s decision arbitrary and capricious. Hence, the injunction was dissolved. Id. at 99.

In the matter sub judice, St. Augustine maintains that the district court erred in superseding “the actions, the discretion, and the decisionmaking (sic) authority of the Principal and the President of St. Augustine High School in imposing discipline in accordance with the Student Handbook.” St. Augustine contends that In the same student handbook was acknowledged by Mr. Lawrence, his wife, and his son, Curtis Lawrence, as a student of the school.

Mr. Lawrence disagrees with St. Augustine’s contention that private institutions have complete autonomy in controlling its internal disciplinary procedures, and maintain that the district court’s ruling should be affirmed as there were no errors of law nor fact in the judgment. They maintain that the district court’s finding that St. Augustine was arbitrary and capricious in placing Curtis Lawrence on Special Disciplinary Probation without due process, was supported by the law and evidence presented at trial of this matter, which included live testimony and affidavits of the persons involved in the incident.

Mr. Lawrence also maintains that the district court was correct in determining that the charged offense of plagiarism is a “Class C” offense in the St. Augustine Student Handbook, and is punishable by Saturday detention or a one-day suspension. The St. Augustine Student Handbook addresses plagiarism as follows:

9. Plagiarism
A student plagiarizes if he copies the language of another and represents the work as his own. Plagiarism is a Class C violation.

Class C violations, such as plagiarism, require “notification by the school office and [the student] must come in for a conference before the student will be allowed to return to school.” The handbook also provides that a student who has been suspended will be placed on Routine Disciplinary Probation. However, Mr. Lawrence’s concern stems from the fact that Curtis Lawrence’s initial probation was followed by the imposition of Special Disciplinary Probation after the |12mandatory school conference to readmit Curtis Lawrence was held on December 18, 2006. Mr. Lawrence argues that Special Disciplinary Probation is imposed for violations of Class D offenses, which are “infractions punishable by Saturday Detention, Dismissal, or Expulsion.” In this manner, he argues, St. Augustine’s actions in imposing Special Disciplinary Probation upon Curtis Lawrence was arbitrary and capricious, and deprived him of his due process. The pertinent provision in the student handbook reads as follows:

SECTION J. DUE PROCESS
To serve as a mechanism of due process, any student at St. Augustine High School who is accused of violating any of the rules or policies of St. Augustine high school as they are set forth in the student handbook, shall write down on a piece of paper that students side of the story concerning the incident involving the student. It is the student’s responsibility to both write down his side of the story and deliver the paper with his story to the principal or his delegate on the day upon which the incident occurred.
If the event involves other students or members of the faculty and staff, they also shall be required to write down their version of events they witnessed or in which they participated.
After a thorough investigation, parents/guardians shall be notified and called in for a conference to discuss the event and all relevant facts.
Once a disciplinary decision has been rendered and the appropriate penalty assigned by the Principal or Assistant Principal, the matter is complete.
Parents/guardians may write a letter of appeal to the president if they so desire. The president of St. Augustine will address each case individually and inform the parents/guardians of his final decision.

11sIn support of his argument, that Curtis Lawrence was denied due process, Mr. Lawrence cites Babcock v. New Orleans Baptist Theological Seminary, 554 So.2d 90 (La.App. 4th Cir.1989). In Babcock, a theological seminary student sought an injunction to preclude the seminary from dismissing him. The district court entered a permanent injunction permitting the student to continue his studies, and a supplementary injunction which required the seminary to confer a degree on student. The seminary appealed. This Court affirmed and held that: (1) courts [have] jurisdiction to consider whether the seminary followed the due process procedure set forth in the student handbook in connection with the attempted dismissal of the student and later refusal to confer degree; Id. at 96, and (2) the attempted dismissal and withholding of degree was invalid, for failure to follow procedure. Id. at 98.

In the instant matter, Mr. Lawrence argues that the due process procedures in the student handbook were not followed. Particularly, Mr. Lawrence identifies “Section J,” above, of the handbook as controlling. However, our review of this matter indicates that Curtis Lawrence never reduced his recollection of events to paper. Additionally, Mr. Lawrence also urges that at the trial of this matter, several defense witnesses admitted that they did not follow the procedures outlined for due process in the student handbook. In addition, one of the students who was accused of plagiarism indicated that he never received anything in writing from any faculty member involved in the investigation, nor did he receive any written notification from the administration prior to his being disciplined. The same student’s mother also testified that she never received anything in writing from St. Augustine before her son was disciplined.

1 uSeveral of St. Augustine’s witnesses also testified that they did not follow this procedure. Ms. Butler, the English teacher, testified that she never officially submitted anything in writing to the administration nor to Curtis Lawrence nor his parents concerning the accusation of plagiarism. Father Doyle, President of St. Augustine, also testified that he never received any writings from any of the parties involved in the incident. Fr. Raphael testified that he did not see, nor did he require Ms. Butler, nor any of the students to submit anything to him in writing. His rationale was that since the incident involved writings, it was not necessary to put everyone’s respective positions in writing.

Curtis Lawrence testified that he was first made aware of the allegations of plagiarism while at school on December 14, 2006. An announcement was made by Fr. Raphael that several students were involved in plagiarism. Later that day, several names were read over the intercom at which time those who were called were asked to report to the office. At that time, Curtis Lawrence testified under oath, he was notified that he was accused of plagiarism.

Once the students reported to the office, Curtis Lawrence testified, Fr. Raphael questioned the students. Although Fr. Raphael questioned all of the students, he also offered them the opportunity to admit their violation of the St. Augustine student handbook. While some of the students confessed, Curtis Lawrence, along with another student, refused to admit to plagiarism. The students were all notified of their one-day suspensions. At this time, Curtís Lawrence testified, he was told to call his father and to notify him of the incident.

Although Curtis Lawrence testified that he had completed his assignment as early as August 2006, and that (1) he was aware of the meaning of plagiarism; (2) that he gave another student a copy of the writing assignment guidelines; and (B) |isthat he allowed the student to copy his paper “as a reference,” but Curtis Lawrence denied knowledge of what the student would do with his paper, and he also denied that helping another student by giving him his work constituted academic dishonesty. Furthermore, Curtis Lawrence also testified that he withheld information about whether or not he knew that the student had copied his paper, while he was questioned by Fr. Raphael during the investigation.

Curtis Lawrence also testified that Ms. Butler informed the students that they could use “Spark Notes” as a resource, but he denied that he copied the material verbatim, even though he admitted that he did use “Spark Notes.” He would not admit that he failed to cite the source of the information he had obtained from the Internet.

COUNSEL: Would you please tell me where on that document you quoted or cited or said that you quoted or cited from the Spark Notes website.
CURTIS: I did not because she was aware that we were using Spark Notes.
Q: Do you understand the difference between studying from something and using it as a resource and actu- ' ally quoting from it?
A: Correct.
Q: There is a difference, would you agree there is a difference?
A: I agree.
Q: And if you take material and it is verbatim, you understand, and put your name on it, that you are representing to whoever you turn that in to that it is your material and your words?
IirA: I am aware of that. But she told us that we could use Spark Notes as long as we didn’t copy and go to that exact paper and copy everything word for word.

Mr. Lawrence testified that he was never notified about Curtis Lawrence’s suspension because the notification was not in writing. However, Fr. Raphael instructed Curtis Lawrence to call his father to inform him about the incident and to inform his father to come to the school for a conference. In addition, Mr. Lawrence, along with Mrs. Lawrence, and Curtis Lawrence met with Fr. Raphael on Monday, December 18, 2006, in a meeting which was required of all the students who served one day suspensions, upon their return to school. However, once Curtis Lawrence was interviewed for the last time upon his readmission, he still would not provide any answers to the questions posed by a member of the school administration, particularly, Fr. Raphael. St. Augustine determined that Curtis Lawrence failed to act honestly due to his refusal to give truthful answers.

Upon enrollment, Mr. and Mrs. Lawrence, along with their son, executed an acknowledgement, or receipt, which was signed on August 16, 2006, which availed Curtis Lawrence to the discipline of St. Augustine. Furthermore, Mr. Lawrence testified that although he did not agree with the outcome of the investigation and the disciplinary process, it was St. Augustine’s final call to determine if his son was guilty of plagiarism.

Mrs. Lawrence also testified in this matter. She indicated that she met with Fr. Raphael and provided him a copy of the Spark Notes website information used by Curtis Lawrence for his reading assignment. She indicated that although Curtis |17Lawrence did not copy the information verbatim, that his “character descriptions” were copied verbatim, and he did not give credit to the original source.

Ms. Butler also testified at trial. She indicated that upon reviewing the students’ papers, she noticed that some were identical. She then notified Fr. Raphael, who instituted an investigation into the matter. She testified that at no time did she inform the students to use the Spark Notes website to generate their papers. However, she mentioned that some of the students complained that they would not be able to access the assigned book, but she informed them that Spark Notes could help them with a summary if they “did not know what was going on in the book, just so they would know what the book was about.” She testified that she clearly prohibited them from copying their papers directly from the Spark Notes website.

Ms. Butler also testified that she was in attendance at the initial meeting between the school administration and the Law-rences on December 14, 2006. She averred that Curtis Lawrence and his father were both in attendance, but when Mr. Lawrence was given the opportunity to compare the papers, line by line, for similarities, he refused. She also described Curtis Lawrence’s demeanor as “angry” because he could not play basketball because of his probation. She also testified that Mr. Lawrence was upset because Curtis Lawrence would not be seen by basketball scouts at the games.

Additionally, Mr. Sterling Fleury, Mr. Eric Fleury, Mr. Eric Smith, and Mr. Ozzie Ross all testified, via affidavits, that all fourteen students were all questioned on December 14, 2006, as part of the plagiarism investigation. However, while twelve of the fourteen students freely confessed to their violation, Curtis Lawrence and the other student would not participate in the investigation, 11Rnor would they accept responsibility for their actions.

Rev. Joseph J. Campion, also testified via affidavit that he was at the meeting on December 18, 2006, at which time the Lawrences were in attendance. He too indicated that Curtis Lawrence refused to accept responsibility for his actions.

Father Raphael testified that once he initiated the investigation, he prefaced his questioning by informing the young men to answer questions truthfully and honestly. He wanted to be clear to the students that if they were dishonest, then they would get extra penalties. Fr. Raphael indicated that he and several other faculty members took the similar papers and read them out aloud simultaneously to illustrate the evidence that was in his possession. Although he testified that not all 14 papers were plagiarized in the same way, they were all from the same source. However, he maintained that out of all the students questioned, only two would not admit to any wrongdoing. He also testified that students of St. Augustine are required, as provided in the student handbook, to cooperate by mandate as a student of the school. This mandate requires truthful and honest answers to questions. He also testified that, “[djishonesty is a Class D violation, which is actually a more serious charge than a Class C violation. That’s why the students are given that as a warning, less they be tempted to try and extricate themselves through dishonesty.”

11flAdditionally, Fr. Raphael testified as to the meeting he had with Mr. Lawrence on December 14, 2006. He indicated that Mr. Lawrence would not examine the papers, even though Fr. Raphael insisted that he examine them. Fr. Raphael indicated that even misspelled words were identical, although individual paragraphs may have been moved around by cutting and pasting them in different locations. However, as a result of his investigation, and given the fact that two students, including Curtis Lawrence, would not admit to wrongdoing, he imposed one-day suspensions along with Routine Disciplinary Probation, which lasted for nine weeks.

He also met with Mrs. Lawrence and her mother on December 18, 2006, and after they produced the material from Spark Notes, Fr. Raphael gave the remaining two students an opportunity to admit that plagiarism had taken place. He averred that even Mrs. Lawrence agreed that the material had been plagiarized, but that Curtis Lawrence still refused to admit wrongdoing, even at his mother’s insistence.

Taking all of these matters into account, Fr. Raphael deemed Curtis’ refusal to participate in the investigation as continued defiance or disrespect to a school official. A letter dated December 18, 2006, the same date of the re-admission conference which occurred the Monday after Curtis had served his one-day suspension, reads, in part:

“Your signature below is a condition for Curtis to return to school. It says to the fact that you fully understand the serious nature of this probation, that you agree to its terms, and that you clearly accept the consequences of failing to comply.”

Hence, he imposed the special probation. Fr. Raphael’s rationale was that the two students “were not respecting the process,” and they would not take Irresponsibility for what had taken place. However, the student handbook also provides that the administration may impose special punishment for special situations.

SECTION H: DISCRETIONARY CLAUSE
Although the rules set down in this handbook addressed the frequent violations of students today, the school reserves the right to vary the sanctions depending on individual circumstances. The school also has the right to pass judgment on behaviors, not written down in these pages, which are clear violations of the values we established as a Christian/Catholic school.
A student is subject to dismissal from school if his parent/guardian uses profanity or disrupts the ordinary function and operation of the school or school events.
SECTION I. PRINCIPAL’S AUTHORITY TO ENFORCE RULES
The principal of St. Augustine High School shall have authority on his own to dismiss a student who violates any infraction which is punishable by dismissal.

Our review of the record indicates that the district court erred in finding that Mr. Lawrence was denied due process. In addressing the general principles of due process in Denham Springs Economic Development Dist. v. All Taxpayers, Property Owners and Citizens, 2005-2274 (La.10/17/06), 945 So.2d 665 the Supreme Court said:

“.... [w]e note the requirements of procedural due process apply only to the deprivation of interests encompassed by the Fourteenth Amendment’s protection of life, liberty, and property. Board of Regents of State Colleges v. Roth, 408 U.S. 564, 569, 92 S.Ct. 2701, 2705, 33 L.Ed.2d 548 (1972). When protected interests are implicated, the right to some kind of prior hearing is 121 paramount. Mullane, 339 U.S. at 314, 70 S.Ct. at 657; Roth, 408 U.S. at 569-70, 92 S.Ct. at 2705. The range of interests, however, protected by procedural due process is not infinite, and the Supreme Court has rejected the notion that any grievous loss visited upon a person by the state is sufficient to invoke the procedural protections of the Due Process Clause. Ingraham v. Wright, 430 U.S. 651, 672, 97 S.Ct. 1401, 1413, 51 L.Ed.2d 711 (1977); Meachum v. Fano, 427 U.S. 215, 224, 96 S.Ct. 2532, 2538, 49 L.Ed.2d 451 (1976); Roth, 408 U.S. at 570, 92 S.Ct. at 2705.
Under current United States Supreme Court case law, every procedural due process case requires application of a two-part test: first, whether a party has been deprived of a protected “life,” “liberty,” or “property” interest, ie., whether the party had an interest protected by the constitution; and second, if so, whether the procedures in place comport with due process. American Manufacturers Mutual Ins. Co. v. Sullivan, 526 U.S. 40, 59, 119 S.Ct. 977, 989, 143 L.Ed.2d 130 (1999); Rhonda Wasserman, Procedural Due Process: A Reference Guide to the United States Constitution 31 (Praeger 2004). Only when protected interests are implicated does the right to some kind of notice and hearing attach. Ingraham, 430 U.S. at 672, 97 S.Ct. at 1413; Roth, 408 U.S. at 564-570, 92 S.Ct. at 2705; Wasserman, supra. Moreover, only after finding the deprivation of a protected interest or the implication of a protected interest in life, liberty, or property does the critical question become what process is due, ie., whether the state’s procedures comport with due process. Sullivan, 526 U.S. at 59,119 S.Ct. at 989; Wasserman, supra.

Id., p. 23, 945 So.2d at 681.

Curtis Lawrence was not singled out because he was personally disliked by Fr. Raphael. On the contrary, as a student enrolled in a Catholic school, Curtis Lawrence, as well as the other students were expected to be truthful and honest. The Special Disciplinary Probation was imposed as a result of Curtis Lawrence’s refusal to participate in the investigation. Higher standards of morality, integrity, and honesty are taught because the curriculum also includes a serious course of | ¡^religious study. At all times during the school investigation, Curtis Lawrence was given every opportunity to truthfully disclose his involvement in the “plagiarism” scandal. At no time was Curtis Lawrence unaware of the charge he was faced with. Fr. Raphael, who is obviously a person of authority, investigated the matter by questioning all of the suspected students in furtherance of resolving the plagiarism scandal. The students, per the student handbook, were expected to answer all questions with honesty and truthfulness. Instead, Fr. Raphael testified that he was met with silence, and what he deemed to be willful non-disclosure of information by both students.

At a subsequent meeting in which the other student admitted that he copied Curtis Lawrence’s paper, Curtis Lawrence still refused to offer any information concerning alleged plagiarism. Hence, these two students refused to admit any misconduct even upon their return to school after serving their one-day suspensions.

Mr. Lawrence maintains that the imposition of Curtis Lawrence’s probation was “arbitrary and capricious.” As this Court stated in Ahlum, supra,

“The disciplinary decisions of a private school may be reviewed for arbitrary and capricious action. Babcock v. Baptist Theological Seminary, 554 So.2d 90, 97 (La.App. 4th Cir.1989); citing Lexington Theological Seminary v. Vance, 596 S.W.2d 11 (Ky.Ct.App.1979); Tedeschi v. Wagner College, 49 N.Y.2d 652, 427 N.Y.S.2d 760, 404 N.E.2d 1302 (1980); Coveney v. President & Trustees of Holy Cross College, 388 Mass. 16, 445 N.E.2d 136 (1983). Id. 617 So.2d at 99.”
The Louisiana Supreme Court has defined “capricious” as a “conclusion made without substantial evidence or a conclusion contrary to substantial evidence.” Coliseum Square Association v. New Orleans, 544 So.2d 351, 360 (La.1989) The word “arbitrary” “implies a disregard of evidence or of the proper weight thereof.” Id. (Citations omitted). Using lathis standard, we find that neither the procedures employed nor the evidence relied upon by Tulane were deficient so as to render its decision arbitrary and capricious.” (Emphasis ours)

Ahlum, 617 So.2d at 99.

However, based upon our review of the record, the testimony given by Curtis Lawrence shows his refusal to participate in the investigation, not a lack of adherence to due process procedures on the part of St. Augustine. “That is not to say that due process safeguards can be cavalierly ignored or disregarded. But, if there is color of due process-that is enough.” Flint, 323 So.2d at 235.

Furthermore, once a final decision was made by the school administration, Mr. Lawrence pursued an appeal up the Jose-phite chain of authority, but was ultimately met with at least two affirmations of Fr. Raphael’s decision. Hence, we find that the school did not violate any student’s due process rights in this matter. Sections H and I, respectively, of the Student Handbook discussed above, provide that “the school reserves the right to vary sanctions depending on individual circumstances. The school has the right to pass judgment on behaviors, not written down in these pages,” and the student handbook clearly sets forth that the Principal of the school, “shall have the authority on his own to dismiss a student who violates any infraction which is punishable by dismissal.”

Additionally, we find that the discipline imposed was not arbitrary nor capricious. The ultimate decisions rendered by Fr. Raphael were not made based upon “conclusion[s] made without substantial evidence or a conclusion contrary to substantial evidence” or a “disregard of evidence or of the proper weight thereof.” See Flint, supra (Citations omitted). Curtis Lawrence was given every opportunity to defend himself. St. Augustine determined that instead of giving truthful ^answers, he merely denied wrongdoing without any explanation as to how his paper came into the possession of another student, nor would he disclose how he came to have information from an internet website appear in his paper without identifying the source material. Although the district court focused its attention on the fact that the students and administrators involved did not reduce their part in the matter to wilting, Fr. Raphael had at least eleven (11) papers that were turned in by students who were involved in a deliberate attempt to turn in material they -did not author in full nor in part. The failure to require these students to write their explanation of events in this matter does not constitute a fatal flaw sufficient to constitute deprivation of due process. Thus, we find that this assignment of error does have merit.

The district court erred by involving itself in the inner workings of St. Augustine High School, a private educational institution, in this matter, in contravention of the holdings of this Court in Flint v. St. Augustine High School, 323 So.2d 229 (La. App. 4th Cir.1976), cert. denied, 325 So.2d 271, (La.1976) and Ahlum v. Administrators of Tulane Educational Fund, 617 So.2d 96 (La.App. 4th Cir.,1993), cert. denied, 624 So.2d 1230 (La.1993). We find that the imposition of Special Disciplinary Probation on Curtis Lawrence by St. Augustine was not arbitrary nor capricious, and was clearly within the plenary authority of the institution. Further, we find that St. Augustine did provide and complied with all safeguards of procedural due process as outlined in its student handbook. All persons involved in this matter were appraised of the investigation, afforded an opportunity to be heard, and the school made a fair determination of penalties. As to this kind of school matter, courts must defer to the sound wisdom of educational | .^institutions, absent clear evidence of the deprivation of due process. There is no such deprivation visited upon Curtis Lawrence in the matter sub judice.

DECREE

For the reasons stated herein, the portion of the district court judgment maintaining the Preliminary Injunction regarding the Special Disciplinary Probation is dissolved.

REVERSED AND RENDERED.

LOMBARD, J., concurs.

LOMBARD, J.,

concurs.

1 jWhile the infractions committed by Mr. Lawrence were egregious, his record as an honor student and his body of work at St. Augustine over a five year period prior to this incident suggest that the denial of his participation in graduation ceremonies is a bit harsh, especially in light of the struggles of his parents who, more than he, look forward to this day.

      . Curtis Jude Lawrence, the petitioner on behalf of his minor son, shares the same name with his son, Curtis Joseph Lawrence. In this opinion, Curtis Jude Lawrence (Curtis the elder), shall be referred to as "Mr. Lawrence,” while Curtis Joseph Lawrence (Curtis the younger), shall be referred to as "Curtis Lawrence.” Any references to the family collectively, or generally, will be referred to as "the Lawrences.”

      . The names of the other students are being withheld pursuant to the Family Education Rights and Privacy Act.

      . The matter was signed by a duty judge.

      . The petition also asserts that “Fr. John Ra-hel’s (sic) actions were motivated by a personal dislike for him and his father Curtis Jude Lawrence, and will cause immediate and irreparable injury to your petitioner.”

      . The second student who would not confess also received Special Disciplinary Probation.

      . Per the student handbook, the notification may be made orally or in writing.

      . Mr. S. Fleury is a teacher and Assistant Disciplinarian; Mr. E. Fleury is the Assistant Librarian; Mr. Smith is the Assistant Principal and Mr. Ross is a Biology teacher;.

      . Rev. Campion is the Campus Minister of the high school.


author: ROLAND L. BELSOME, Judge.

text:
    Glenn A. ALEXANDER v. PRESTIGE CAR WASH, Troy David, Walter Davis, and XYZ Insruance Company.
    No. 2006-CA-0645.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 21, 2007.

      Pius A. Obioha, Pius A. Obioha & Associates, LLC, Baton Rouge, LA, for Plaintiff/Appellant.
    Brynn M. Baiamonte, Jeff R. Rytlewski, Law Office of Jeff R. Rytlewski, Metairie, LA, for Defendant/Appellee.
    (Court composed of Judge MAX N. TOBIAS Jr., Judge EDWIN A. LOMBARD, Judge ROLAND L. BELSOME).
   ROLAND L. BELSOME, Judge.

11 Appellant appeals the judgment by the trial court ordering him to pay $250.00 for failure to timely answer Appellees’ discovery. We affirm.

STATEMENT OF THE FACTS AND PROCEDURAL HISTORY

Glenn A. Alexander (“Alexander”) filed suit in September of 2000. Alexander alleged that as an employee of Prestige Car Wash, Inc. (“PCW”), he had been injured by his coworkers. Appellant represented Alexander in the lawsuit. Written discovery was exchanged in the case, and Alexander was deposed in March of 2001.

Counsel for PCW contends that a long history exists in this case of delayed discovery and numerous failed appearances by counsel for Alexander at scheduled conferences and hearings. Ultimately, after a scheduled pretrial conference on | ^February 16, 2006, the court ordered that counsel for Alexander respond to Interrogatories propounded by counsel for PCW -within thirty days and to pay $250.00 attorney’s fees and costs.

On March 1, 2006, counsel for Alexander filed a Motion for Reconsideration to Vacate and Annul Judgment and to Award Attorney’s Fees, which was denied by the trial court on March 3, 2006. Counsel for Alexander subsequently filed a Notice of Appeal on March 31, 2006. It is not clear from counsel’s brief, however, whether he is appealing the order to pay $250.00 or whether he is appealing the judgment on his Motion for New Trial; in his Notice of Appeal, counsel references the judgment denying his Motion for Reconsideration, but discusses in his appellate brief only the trial court’s judgment ordering him to pay $250.00.

STANDARD OF REVIEW

This Court and the Louisiana Supreme Court have established that trial courts are afforded vast discretion with regard to regulating pre-trial discovery, which is not to be disturbed on appeal “absent a clear showing of abuse.” Smith v. 4938 Prytania Inc., 04-0833, p. 5 (La. App. 4 Cir. 1/26/05); 895 So.2d 65, 69 (citing Moak v. Illinois Central Railroad Co., 93-0783 (La.1/14/94); 631 So.2d 401, 406).

LAW AND ANALYSIS

First, we find that the trial court did not err in this case when it granted counsel for PCW’s Motion to Compel and awarded $250.00 for attorney’s fees and |acosts. Pursuant to Article 1469 of the Louisiana Code of Civil Procedure, with regard to Motions to Compel Answers to Interrogatories:

If the motion [to compel] is granted, the court shall, after opportunity for hearing, require the party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct or both of them to pay to the moving party the reasonable expenses incurred in obtaining the order, including attorney’s fees, unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust.

La. C.C.P. art. 1469(4)(emphasis added).

Under the particular facts and circumstances of this case, the trial court did not abuse its discretion in awarding $250.00 in attorney’s fees and costs to counsel for PCW. Because the record includes several motions filed by counsel for PCW to set pretrial conferences and correspondence by counsel for PCW to counsel for Alexander to move discovery along, we agree with the trial court’s conclusion that counsel for Alexander in this ease “necessitated the motion” to compel and thus should be required to pay the expenses associated with obtaining the order pursuant to Article 1469.

Second, we find that the trial court did not err when it denied counsel for Alexander’s Motion for Reconsideration to Vacate and Annul Judgment and to Award Attorney’s Fees. The trial court treated the Motion for Reconsideration as a motion for a new trial, and when the court reviewed it as such, it determined that counsel for Alexander failed to provide any new evidence or raise any new issues. Accordingly, the trial court appropriately denied the Motion for Reconsideration. This issue is governed by Article 1972 of the Louisiana Code of Civil Procedure, which provides, in pertinent part, that a new trial shall be granted:

|4(2) When the party has discovered, since the trial, evidence important to the cause, which he could not, with due diligence, have obtained before or during the trial.

La. C.C.P. art 1972(2) (emphasis added).

The trial court determined that because counsel for Alexander did not allege the discovery of any new evidence or provide any documentation or authority that the judgment was contrary to the law or evidence that a New Trial was not warranted in this case. We find that the trial court was correct in denying the motion.

CONCLUSION

We find that the trial court did not err in ordering the Appellant to pay $250.00 in attorney’s fees and costs, nor did the trial court err in denying the Appellant’s Motion for Reconsideration to Vacate and Annul Judgment and to Award Attorney’s Fees. Therefore, we affirm the judgment of the trial court.

AFFIRMED.

      . The record includes a motion and order to set a pretrial conference on May 7, 2003; a motion to reset status conference on October 22, 2003; a motion and order for a pretrial conference on September 20, 2004; a rule to show cause why the matter should not be set for trial filed on September 23, 2004; an order setting the rule to show cause for hearing on November 9, 2004; another rule to show cause why the matter should not be set for trial filed on January 10, 2005; an order setting the rule to show cause hearing for February 4, 2005; a motion and order to compel responses to Interrogatories on February 16, 2005; correspondence to Appellant dated January 3, 2006 and January 6, 2006, requesting responses to Interrogatories served on Appellant on December 16, 2005 (the latter requesting a Rule 10.1 discovery telephone conference on January 12, 2006); and a motion to set a pretrial conference on April 12, 2006.

      . Counsel for Alexander also failed to attach a judgment to his brief as required by the Uniform Rules of the Courts of Appeal.