author: MARC E. JOHNSON, Judge.

text:
    STATE of Louisiana, DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT v. LAURICELLA LAND COMPANY, L.L.C., et al.
    No. 10-CA-790.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 28, 2011.

      Gregory G. D’Angelo, Wm. David Coffey, Attorneys at Law, Metairie, LA, Alicia Wheeler, Attorney at Law, Baton Rouge, LA, for PlaintifiyAppellant/Cross-Appellee.
    Randall A. Smith, L. Tiffany Davis, Melissa M. Desormeaux, Attorneys at Law, New Orleans, LA, for Defendant/Appel-lee/Cross-Appellant.
    Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS, and MARC E. JOHNSON.
   MARC E. JOHNSON, Judge.

12This appeal arises from a jury verdict awarding damages in favor of Defendant/Appellee, Lauricella Land Company, L.L.C. (hereinafter referred to as “Lauri-cella”), and against PlaintiffyAppellant, the State of Louisiana, Department of Transportation and Development (hereinafter referred to as “DOTD”), in the 24th Judicial District Court, Division “L”, for an expropriation matter. Both DOTD and Lauricella appeal the verdict, while DOTD also appeals the denial of a Motion for Directed Verdict. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On March 4, 2008, DOTD filed a Petition and an Order of Expropriation pursuant to LSA-R.S. 48:451, et seq. DOTD named Lauricella and The Pep Boys— Manny, Moe & Jack, Inc. as defendants to the action. The petition requested the immediate taking in full ownership of the property of the defendants located at the bottom of the Huey P. Long Bridge on Clearview Parkway (Parcel Numbers 22-3, |s22-4, and 23-3) for the purpose of constructing the “Huey P. Long Bridge Widening Westbank & Eastbank Approaches & Main Bridge Deck Widening State Routes LA-US 90, LA 3287, LA 48, & LA 18” project (hereinafter referred to as “the Project”). The properties were located in a desirable, high-traffic area and were extremely valuable for commercial retail use before the taking. DOTD deposited $6,175,253.00 in the registry of the court for compensation for the expropriation.

The Order of Expropriation was signed by the trial cohrt on March 10, 2008. An Ex Parte Joint Motion to Withdraw Funds from the Registry of the Court was signed by the trial court on May 14, 2008. On November 19, 2008, Lauricella filed an Answer and Reconventional Demand requesting an amount sufficient to compensate Lauricella to the full extent of its loss for the taking.

Prior to the commencement of trial, DOTD altered its right-of-way plans regarding Parcel 23-8. Parcel 23-3 is located on the FedEx/Kinko’s site on Clearview Parkway. The original right-of-way plan designed by DOTD included the taking of an area on the FedEx/Kinko’s site, which encompassed seven parking spaces. Additionally, DOTD’s original right-of-way plan included the removal of a semaphore traffic signal, which allowed a lane for protected left turn onto the FedEx/Kinko’s site, at the intersection of Clearview Parkway and East Corporate Boulevard; nonetheless, the turning lane was not eliminated. The altered right-of-way plan declared Parcel 23-3 “no longer necessary for the project.” The altered right-of-way plan continued to include the removal of the semaphore traffic signal. However, a traffic sign would replace the traffic signal.

On October 30, 2009, DOTD sent Lauri-cella a letter via certified mail | informing Lauricella that final approval had been received to sell Parcel 23-3. DOTD offered to sell Parcel 23-3 to Lauricella for $71,964.00 through a private sale. Lauri-cella did not accept DOTD’s offer.

A jury trial was held on November 16-19, 2009 on the matter. The jury was asked to determine just compensation for the three parcels taken (Parcel Numbers 22-3, 22-4, and 23-3) and severance damages to the remainder of the property, and was presented nine questions as Special Jury Interrogatories. After a four day trial, the jury awarded Lauricella a total of $9,601,698.00 in just compensation and severance damages. In particular, the jury awarded $608,107.00 as just compensation for the damages to the remainder of the land and improvements on the FedEx/Kin-ko’s site as a result of the taking, and $0.00 as just compensation for the loss of rental income relating to the FedEx/Kinko’s site as a result of the taking. The jury verdict was incorporated in the Judgment signed on December 8, 2009.

DOTD filed a Motion for Supplemental Deposit and to Amend Pleadings to Conform to Evidence on December 8, 2009 requesting to be allowed to amend its Petition and be allowed to deposit additional funds into the registry of the court for just compensation. The trial court sign an ex parte order granting DOTD’s motion on the same date. In response, Lauricella filed a Motion for Partial New Trial and/or Partially to Vacate Order on December 17, 2009 challenging the permission of the amendment of the pleadings by DOTD. On January 12, 2010, a Consent Judgment was issued granting Lauricella’s motion only in the respect that the rights of DOTD and Lauricella were fully reserved to appeal or answer any appeal of the December 8, 2009 Judgment. The instant appeal followed.

On appeal, DOTD only challenges the award as just compensation for the remainder of the land and improvements on the FedEx/Kinko’s site as a result of |sthe taking of Parcel 23-3.

ASSIGNMENTS OF ERROR

On appeal, DOTD alleges 1) the trial court erred as a matter of law in denying its Motion for Directed Verdict; 2) the jury erred in awarding severance damages without considering the effects of the alteration to the Project as proposed and planned by DOTD; and, 3) the jury erred in awarding severances damages based upon a potential further loss of a traffic control signal.

In its Answer to the appeal, Lauricella alleges the amount of compensation awarded does not constitute just compensation for 1) the taking of its land, building and improvements by DOTD, and 2) damages for lost rental income. Additionally, Lau-ricella seeks to recover additional attorneys’ fees incurred in responding to DOTD’s appeal.

LAW AND ANALYSIS

DOTD’s First Assignment of Error

DOTD alleges the trial court erred in not granting its Motion for Directed Verdict when the testimony established that damages were too remote and speculative to be compensable for Parcel No. 28-8. DOTD argues the testimony presented and the record establishes that 1) DOTD declared that Parcel No. 23-3 was not necessary for the Project; 2) the Project did not affect Parcel No. 23-3; and for these reasons, 3) no taking occurred that would give rise to a claim for damages under Title 48; and, 4) Lauricella’s evidence related only to a possible future claim in inverse condemnation. DOTD further argues the future damages for the traffic signal were highly speculative because DOTD has the legal right to amend its | (¡construction plans at any time prior to the completion of a project and has the right to control traffic without incurring liability for exercise of such control pursuant to Constance v. DOTD, 626 So.2d 1151 (La.1993). Lastly, DOTD argues the determination of whether Lauricella is entitled to severance damages for alterations in traffic control or patterns is a question of law that should have been ruled upon by the trial judge in the Motion for Directed Verdict, not a factual determination by the jury.

The trial judge has much discretion in determining whether or not to grant a motion for directed verdict. Warden v. Richoux, 09-794, p. 15 (La.App. 5 Cir. 3/23/10); 40 So.3d 139, 149, writ denied, 10-0921 (La.6/25/10);, 38 So.3d 340, citing Delaney v. Whitney National Bank, 96-2144, pp. 9-10 (La.App. 4 Cir. 11/12/98); 703 So.2d 709, 717. A motion for directed verdict should be granted when, after considering all evidentiary inferences in the light most favorable to the mover’s opponent, it is clear that the facts and inferences are so overwhelmingly in favor of the moving party that reasonable men could not arrive at a contrary verdict. Id., citing Davis v. J.C. Penney Stores, 05-881, p. 11 (La.App. 5 Cir. 4/11/06); 930 So.2d 130, 136. If there is substantial evidence opposed to the motion, ie., evidence of such quality and weight that reasonable and fair-minded jurors in the exercise of impartial judgment might reach different conclusions, the motion should be denied and the case submitted to the jury. Id., citing Thomas v. A.P. Green Industries, Inc., 05-1064, p. 19 (La.App. 4 Cir. 5/31/06); 933 So.2d 843, 858. Further, the appellate court must also determine if the record supports the granting of a directed verdict, based not on a credibility determination (a factual issue), but on a sufficiency of evidence determination (a question of law). Davis v. Board of Supervisors of Louisiana State University and Agr. and Mechanical College, et al., 03-2219, p. 8 (La.App. 4 Cir. 11/17/04); 887 So.2d]7722, 727.

In the instant case, we are of the opinion the severance damage claims presented by Lauricella were properly before the jury to determine as questions of fact, which would include the issue of traffic alterations by DOTD. The record shows that Lauricella and DOTD offered testimony concerning the severance damage claims for the remaining property after the taking of Parcel 23-3. The record contains sufficient evidence for reasonable and fair-minded jurors to reach different conclusions on whether Lauricella was entitled to severance damages. We find the motion for directed verdict was properly denied by the trial court. Accordingly, this issue is without merit.

DOTD’s Second Assignment of Error

DOTD alleges the jury committed manifest error when it awarded severance damages for Parcel No. 23-3, despite the absence of a reasonable factual basis for such an award. DOTD contends the award of severance damages was clearly wrong because the testimony and evidence actually established that Lauricella did not sustain any compensable severance damages. DOTD avers the evidence establishes that Lauricella’s Parcel No. 23-3 was no longer necessary for the Project and would not be affected by the Project, and there was no evidence of damages related to the actual taking. DOTD further avers the only testimony heard by the jury that addressed the revised plans was offered by DOTD’s expert, whose testimony established the elimination of Parcel No. 23-3 from the Project also eliminated Lauricella’s entitlement to severance damages.

Conversely, Lauricella contends facts and assertions were presented to the jury from both sides and were taken into consideration. Because all evidence was considered by the jury, Lauricella argues there can be no manifest error, and the award for severance damages cannot be disturbed. Additionally, Lauricella | ^contends the scope of DOTD’s taking was never amended or altered, and DOTD is still the owner of Parcel 23-3.

In State, Dept. of Transp. & Development v. Schwegmann Westside Expressway, Inc., 95-261, pp. 8-9 (La.3/1/96); 669 So.2d 1172, 1177, the Louisiana Supreme Court addressed the standard of review for a matter of this sort by stating the following:

Our rules of manifest error state that before a factfinder’s verdict may be reversed, there must be evidence within the record, such that a reasonable factual basis does not exist for the verdict, and the record establishes the verdict is manifestly erroneous. An appellate court should not upset factual findings of a trial court absent manifest error or unless clearly wrong. Although the factfinder is afforded deference, appellate courts and this court nonetheless have a duty to review facts. Upon review, an appellate court may not merely decide if it would have found the facts differently, but rather the trial court’s decision should be affirmed when its judgment is not clearly wrong or manifestly erroneous. The appellate court has a constitutional duty to perform, and it has the right to determine whether the trial court’s verdict was clearly wrong based on the evidence. (Citations omitted).

Louisiana Constitution, Article I § 4(B)(1), Right to Property, provides, “Property shall not be taken or damaged by the state or its political subdivisions except for public purposes and with just compensation paid to the owner or into court for his benefit.” The Section further states,

In every expropriation or action to take property pursuant to the provisions of this Section, a party has the right to trial by jury to determine whether the compensation is just, and the owner shall be compensated to the full extent of his loss. Except as otherwise provided in this Constitution, the full extent of loss shall include, but not be limited to, the appraised value of the property and all costs of relocation, inconvenience, and any other damages actually incurred by the owner because of the expropriation. LSA-Const., Art. I § 4(B)(5).

Additionally, LSA-R.S. 48:453 provides, in pertinent part,

A. The measure of compensation for the property expropriated is determined as of the time the estimated compensation was deposited into the registry of the court, without considering any ^change in value caused by the proposed improvement for which the property is taken.
B. The measure of damages, if any, to the defendant’s remaining property is determined on a basis of immediately before and immediately after the taking, taking into consideration the effects of the completion of the project in the manner proposed or planned.
C. The owner shall be compensated to the full extent of the loss.

Severance damages may be awarded in expropriation cases when appropriate or properly proven. State, Dept. of Transp. and Development v. Restructure Partners, L.L.C., 07-1745, p. 7 (La. App. 1 Cir. 3/26/08); 985 So.2d 212, 221. The term “severance damages” describes those compensable damages that flow from the partial expropriation of a tract of land, ie., the difference between the value of the remaining property before and after the taking. Id. The landowner has the burden of proving severance damages with legal certainty by a preponderance of the evidence. Id.

Necessity of Parcel 23-3

DOTD argues that its amended plans for the Project filed into the record prior to trial November 17, 2009 documenting that no portion of Lauricella’s Parcel 23-3 would be used in the Project illustrated there is no longer a need for the property. DOTD also argues the testimony of Richard L. Savoie, DOTD’s Deputy Chief Engineer, confirmed that Parcel 23-3 was eliminated from the Project because it was no longer needed. In sum, DOTD contends the record is well documented that it reassessed the need for Parcel 23-3; declared it no longer necessary for the Project; and, offered the property back to Lauricella, as required by LSA-Const. Art. I § 4(H).

When referencing surplus land, LSA-Const., Art. I § 4(H) states, in pertinent part,

(2) Within one year after the completion of the project for which the property was expropriated, the state or its political | ^subdivision which expropriated the property shall identify all property which is not necessary for the public purpose of the project and declare the property as surplus property.
(3) All expropriated property identified as surplus shall be offered for sale to the original owner or his heir, or, if there is no heir, to the successor in title to the owner at the time of expropriation at the current fair market value, within two years after completion of the project. If the original owner, heir, or other successor in title refuses or fails to purchase the surplus property within three years from completion of the project, then the surplus property may be offered for sale to the general public by competitive bid. (Emphasis added).

In this matter, in a letter dated October 30, 2009, DOTD offered to sell Lauricella, through its counsel of record, the subject property for $71,964.00, which was the appraised value at that time, through a private sale. DOTD informed Lauricella that if it had not received a response within 15 days, it would advertise the property for sale at a public bid. Although DOTD complied with LSA-Const., Art. I § 4(H) in offering the property to Lauricella before placing it for competitive bidding, it did not comply with the time frame set forth in the Section. The Section provides that DOTD is mandated to identify surplus property within one year after the completion of the project. To date, the Project has not been completed. As a result, DOTD’s offer to Lauricella did not comply with the Section, and the property was not properly classified as “surplus.” Therefore, DOTD fails in proving that Parcel 23-3 is no longer necessary for the Project.

Testimony presented, at trial for severance damages

DOTD avers that the testimony of Angela Lemoine Lakvold, DOTD’s real estate expert, was the only testimony relative to the effects of the completion of the Project as alternatively proposed. DOTD further avers that Ms. Lackvold’s testimony provided evidence that the subject property had not been impacted by the Project, which proves that Lauricella is not entitled to severance damages.

It is elementary that where a case is tried by a jury, that jury is the trier of Infact. State, Dept. of Transp. and Development v. August Christina & Bros., Inc., 97-244, p. 8 (La.App. 5 Cir. 2/11/98); 716 So.2d 372, 377, citing State, DOTD v. Scramuzza, 95-786 (La.App. 5 Cir. 4/30/96); 673 So.2d 1249, aff'd in part, rev’d on other grounds in part, 96-1796 (La.4/8/97); 692 So.2d 1024. The question of what damages will appropriately compensate the landowner is one of fact. Id. at 11, 716 So.2d at 378. Such determination is necessarily dependent on the evidence presented by expert witnesses. Id. at 12, 716 So.2d 372. However, the fact finder is not obligated to accept an expert’s opinion in expropriation cases, since those opinions are not binding and are merely advisory in nature. Id. The informed and reasoned opinion of experts, corroborated by the facts in the record, may adequately prove a severance damage loss, especially where accepted by the trier of fact. State, Dept. of Transp. and Development v. Restructure Partners, L.L.C., supra.

In the instant case, the members of the jury were allowed to hear the testimony of four experts regarding severance damages: Angela Lemoine Lakvold, Wade R. Ragas, Michael J. DeFelice and Bennett Oubre. Mrs. Lakvold and Mr. DeFelice were tendered by DOTD and accepted as experts in real estate appraisal for just compensation. Mr. Ragas and Mr. Oubre were tendered by Lauricella.

Mr. Ragas was accepted as an expert in real estate appraisals. Although he did not testify to the altered right-of-way plans of DOTD, Mr. Ragas testified that Lauricella was entitled to severance damages for the removal of the traffic signal and the loss of parking spaces included in the original right-of-way plans. Mr. Ragas addressed the importance of the traffic signal and its removal. He noted that it will be harder to enter and exit the FedEx/Kinko’s site without the protected semaphore traffic signal.

Mr. Oubre was accepted as an expert in real estate. He testified that he conducted an appraisal review of the appraisals submitted by DOTD and the 112amount of just compensation. Mr. Oubre questioned the validity of the values included in both of the DOTD appraisals because the appraisers had not worked in the subject area prior to working on their appraisals for the Project. Additionally, Mr. Oubre testified that the altered access to the FedEx/Kin-ko’s site would lessen the desirability of the property. He stated a buyer will not pay as much for it, or a national retailer will pay less to lease it because it will not attract as many visitors. Mr. Oubre also expressed concern that neither of DOTD’s appraisals provided an adjustment for the change of the access to the property. Mr. Oubre did not testify as to the altered right-of-way plans.

After listening to the testimony of the experts, the jury returned a verdict awarding Lauricella $608,107.00 for severance damages to the remainder of the land and improvements on the FedEx/Kinko’s site as a result of the taking. The jury favored the testimonies of Lauricella’s expert witnesses over the testimonies of DOTD’s expert witnesses by rejecting them in part or in total.

After review of the testimony presented, we do not find the jury was manifestly or clearly erroneous in its finding that Lauri-cella was entitled to severance damages. Although testimony was presented by DOTD that Lauricella did not and will not incur any damages to the remainder of the land on the FedEx/Kinko’s site due to the alteration in the Project’s plans, there is evidence in the record (through the testimonies of Mr. Ragas and Mr. Oubre) that support the jury’s finding that Lauricella was entitled to the $608,107.00 in severance damages.

DOTD’s Third Assignment of Error

DOTD alleges the jury erred in awarding damages for an anticipated alteration of a controlled intersection when no property of Lauricella was taken for that purpose. DOTD argues the anticipated alteration of the traffic control signal at | iathe intersection of Clearview Parkway and East Corporate Boulevard from a semaphore signal to signage control does not require nor does it emanate from the taking of any property from Lauricella, and the anticipated action is merely a discretionary function within its executive authority to implement without incurring liability therefor. DOTD further contends Lauricella failed to introduce sufficient evidence that the anticipated alteration in signage affects its property. Since the turning lane in question services the general area, not just the subject property, DOTD avers Lauricella has no vested property right that will be affected by the change.

In response, Lauricella contends it was entitled to the severance damages award because a landowner is entitled to severance damages if the value of his property is diminished by change to access caused by changes in traffic lights, turn lanes, curb cuts, etc., provided that those changes are part of the project. Additionally, Lauricella contends LSA-R.S. 48:458 requires severance damages be based upon completion of the project, whether or not DOTD has finished construction. Lauri-cella argues that any other interpretation of the statute would leave DOTD free to shortchange the landowner simply by waiting until after the expropriation trial to build the project and inflict damages.

Severance damages represent economic losses. State, Dept. of Transp. and Development v. Unverzagt, 590 So.2d 680, 683 (La.App. 3rd Cir.1991), citing State, through Dept. of Highways v. Landeche, 400 So.2d 241, 246 (La.App. 4th Cir.1981). Inconvenience to the owner, diversion of traffic, or changes in attending circumstances are not proper elements of severance damages, unless they dimmish the value of the owner’s remaining property. Id. If a public authority substantially interferes with the owner’s right of access, he has a constitutional right to just compensation for his loss; but where access is not substantially 114impaired or is impaired only on a temporary basis and/or the inconvenience to the owner is not peculiar to him, but general to the public at large, no recovery is allowed. Lambert v. State through Dept. of Transp. & Development, 96-160, p. 6 (La.App. 5 Cir. 10/16/96); 683 So.2d 839, 842.

At trial, Lauricella presented testimony from John Fernand Exnicios, who was tendered and accepted as an expert in traffic engineering. Mr. Exnicios testified that he reviewed the original plans drafted by DOTD, the configuration of the roadways, and the traffic count in the area of Parcel 23-3. He testified the plans would prohibit traffic from crossing Clearview Parkway from west to east, and that the traffic from that direction would have to make a U-turn farther down Clearview Parkway to access the property. He also testified that the traffic from Earhart Expressway will have an unprotected left turn into traffic coming from the Huey P. Long Bi'idge at 45mph. In addition to Mr. Exnicios’ testimony, Mr. Ragas also testified that the removal of the semaphore traffic signal would diminish the utility of the remaining property because it would be harder for customers to enter and exit the property and national tenants would be less likely to lease the property in the future. Furthermore, Mr. Louis Lauricella, the Managing Member of the Lauricella, testified that the traffic signal, the turning lane and the entire system was designed by Lauricella’s consultants and paid by Lauricella for the purpose of having a protected turn for entering and exiting the FedEx/Kinko’s property.

From the testimony presented to the jury, we find Lauricella proved it was entitled to severance damages by a preponderance of the evidence for the alteration of the traffic control signal.

Lauricella’s First Assignment of Error

Lauricella contends the jury failed to consider the loss in value of the building when awarding severance damages by ignoring Mr. Ragas’ division of the | ^severance damages into damages for the building at $450,500.00 and damages for the land at $984,475.00. Lauricella avers that since the jury’s award of severance damages was almost exactly mid-point between DOTD’s appraiser’s testimony and Ragas’ testimony of severance damages attributable to the land, the jury clearly erroneously left out the damages to the building in assessing damages.

The assessment of the appropriate amount of damages by a jury is a determination of fact that is entitled to great deference on review. Smith v. State, Dept. of Transp. & Development, 04-1317 and 04-1594, p. 18 (La.3/11/05); 899 So.2d 516, 527, rehearing denied, 04-1317 (La.5/13/05). Our rules of manifest error state that before a fact finder’s verdict may be reversed, there must be evidence within the record, such that a reasonable factual basis does not exist for the verdict, and the record establishes the verdict is manifestly erroneous. State, Dept. of Transp. & Development, v. Schwegmann Westside Expressway, Inc., supra. An appellate court should not upset factual findings of a trial court absent manifest error or unless clearly wrong. Id.

The jury awarded a total of $608,107.00 on the “SPECIAL JURY INTERROGATORIES/VERDICT” form as just compensation for the damages to the remainder of the land and improvements on the FedEx/Kinko’s site as a result of the taking of Parcel 23-3. From this form alone, we cannot discern exactly what the jury considered when determining that amount. However, the jury was presented expert testimony from both parties as to the value of the building and the land and was free to accept or reject any part of the testimony. Because the jury award is given deference on review, we will not disturb its finding because there is evidence in the record to support that award of severance damages.

Lauricella’s Second Assignment of Error

Lauricella argues the jury committed reversible error in failing to award the | ^undisputed amount owed in lost rentals. Lauricella contends the jury likely misapplied the law in view of the misleading jury instructions and improper admission of evidence. In addition, Lauricella argues that DOTD has not offered any record evidence to refute the lost rental income claim.

DOTD avers the jury’s refusal to award lost rent damages was reasonable based on the evidence presented (or lack thereof) at trial. Contrary to Lauricella’s contentions, DOTD argues the claim for lost rent was challenged on several bases by DOTD. DOTD contends that the most notable argument was that the voluntary reduction in rent was only arguably due to effects of other parts of the Project, not the taking of Parcel 23-3; and, if this claim was based on other actions of DOTD, ie., the anticipated alterations to the traffic signal, then those actions have not occurred, and it was within the jury’s purview to consider whether this claim was too remote and speculative to be rewarded. Additionally, DOTD argues the jury is presumed to have considered the testimony of Mr. Lau-ricella; the report of Dr. Ragas, which was written months before the trial; and, the law that the opinions of an expert are merely advisory in nature, and a jury is free to accept or reject expert opinion.

As previously mentioned, the award of damages is a determination of fact and is entitled to great deference on review. Smith v. State, Dept, of Transp. & Development, supra. Additionally, the appellate court will not upset a finding of the trial court absent manifest error. State, Dept, of Transp. & Development v. Schwegmann Westside Expressway, Inc., supra.

Mr. Lauricella testified Lauricella amended FedEx/Kinko’s lease upon renewal in November of 2009 after FedEx/Kinko’s learned of the Project and its effects on the property. He said FedEx/Kinko’s made known its intention to move |17to another location. As a result, he stated the monthly rental was reduced to $9,000.00 per month from the previous $14,700.00 per month lease, and the new lease term was one year as opposed to the previous five-year lease term. Mr. Lauri-cella also testified that, had FedEx/Kinko’s signed for another five-year term, the lease would have been for $17,400.00 per month. Moreover, Mr. Ragas testified that Lauricella would lose $8,400.00 per month in rent as a result of FedEx/Kinko’s decision to leave. However, no testimony from a FedEx/Kinko’s representative was offered to the jury to explain its position on why it renegotiated the lease.

Although DOTD offered no evidence during the trial to address Lauricella’s lost rental claims, we give deference to the jury in its finding that Lauricella was not entitled to lost rental income and infer that the testimonies of Mr. Lauricella and Mr. Ragas in reference to lost rental income were rejected by the jury. Therefore, we do not find the jury was clearly wrong in failing to award Lauricella lost rental income.

DECREE

For the foregoing reason, we affirm the denial of the Motion for Directed Verdict. Furthermore, we affirm the jury verdict awarding Lauricella just compensation for the damages to the remainder of the land and improvements on the FedEx/Kinko’s site as a result of the taking. The request for attorney’s fees incurred in responding to DOTD’s appeal by Lauricella is denied. Each party is to bear its own costs for this appeal.

AFFIRMED

      . The individual State Project numbers for this Project are [ XXX-XX-XXXX ], [ XXX-XX-XXXX ], [ XXX-XX-XXXX ], [ XXX-XX-XXXX ], [ XXX-XX-XXXX ], [ XXX-XX-XXXX ], and [ XXX-XX-XXXX ].

      . Pursuant to a Joint Motion to Sever and/or Bifurcate Proceedings, The Pep Boys — Man-ny, Moe & Jack, Inc. claims were allowed to be tried separately. Those claims for additional compensation were settled with DOTD.

      . It is noted that only two of Lauricella's assignments of error are being considered by this Court. Lauricella raised two other assignments of error in its Answer concerning the amount of the just compensation for the damages to the remainder of the property and the taking of a construction servitude; however, those assignments were not briefed. The other assignments of error are considered as abandoned. See Uniform Rules — Courts of Appeal, Rule 2-12.4.


source: Caselaw Access Project

author: FREDERICKA HOMBERG WICKER, Judge.

license: Public Domain

text:
    Emily Allain SILBERNAGEL v. Eric SILBERNAGEL.
    No. 10-CA-267.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 10, 2011.

      J. Louis Watkins, III, Attorney at Law, Houma, LA, for Plaintiff/Appellant.
    Don C. Gardner, Attorney at Law, Har-ahan, LA, for Defendant/Appellee.
    Panel composed of Judges MARION F. EDWARDS, FREDERICKA HOMBERG WICKER, and HILLARY J. CRAIN, Pro Tempore.
   FREDERICKA HOMBERG WICKER, Judge.

I .This is a custody dispute between Emily Allain Silbernagel and Eric Silbernagel regarding the custody of their eleven-year old minor son, Matthew. After a trial on the merits, the district court modified the preexisting custody agreement by naming both parents co-domiciliary parents and by modifying the visitation scheduled from alternating seven-day periods. The district court, however, maintained the portion of the judgment which ordered Matthew’s continued attendance at St. Louis King of France school. Finding that the heightened Bergeron standard was met in this case, we affirm the district court’s judgment.

Facts and Procedural History

This is an ongoing dispute between Emily Silbernagel and Eric Silbernagel that has spanned over a five-year period regarding the custody of their eleven-year old minor son, Matthew. The facts of this case were previously set forth in Silbernagel v. Silbernagel, 06-879 (La.App. 5 Cir. 4/11/07), 958 So.2d 13. In that case, we affirmed the district court’s ruling which maintained Emily Silbernagel as the domiciliary parent; ordered Matthew’s continued attendance at |sSt. Louis King of France school; and modified the physical custody arrangement to alternating seven-day periods. Four years after affirming that judgment, the parties are back before us regarding Matthew’s custody.

On January 22, 2008, Eric Silbernagel filed a Rule for Modification of Custody and Visitation in the 24th Judicial District Court in Jefferson Parish wherein he sought to be named Matthew’s domiciliary parent. He also requested that the court order Matthew to remain at St. Louis King of France school in Metairie. That filing was precipitated by Emily Silbernagel’s previous filing, on November 29, 2007, of a Rule for Modification and Change in Venue in the 32nd Judicial District Court in Terrebonne Parish. In that pleading, she requested that visitation be modified from the alternating seven-day periods to allow Eric Silbernagel to visit Matthew every other weekend, alternate holidays, and every other week during the summer when Matthew was out of school. She also requested that Matthew be allowed to attend school in Terrebonne Parish where she resided.

After Emily Silbernagel’s rule was dismissed in Terrebonne Parish, Eric Silber-nagel’s rule was heard in Jefferson Parish by a hearing officer on March 7, 2008. The hearing officer denied the motion but recommended that Matthew remain at St. Louis King of France school until mutual agreement by the parties or further order of the court. Eric Silbernagel objected to the hearing officer’s ruling denying modification of custody. The matter was subsequently heard before the district court on August 4, 2009. Emily Silbernagel, Eric Silbernagel, and Elliot Levin, a clinical social worker, testified at that hearing.

|4Emily Silbernagel testified that she has driven Matthew from Houma to Metairie every other week since 2005. She recalled testifying during the April 2006 custody hearing that the drive was not problematic. At that time, however, she had only been making the drive for four to six months. She admitted that now, through the passage of many years, the drive is no longer manageable and endangers Matthews’s life. In fact, Emily Silbernagel’s Rule for Modification and Change in Venue filed in Terrebonne Parish states, “The minor child is placed in danger everyday by being on the highway driving to Metair-ie from Terrebonne Parish approximately 540 miles every other week, for a total of 1,080 miles a month. Defendant, Eric Sil-bernagel agrees that the child is put in danger by being on the highway.”

Emily Silbernagel further testified that since she has been making the commute, she has been involved in two vehicular accidents, one which occurred while Matthew was with her. That accident, which occurred during the school week, required Matthew to miss the next day from school and resulted in a trip to the emergency room where he was found to have a nonthreatening head laceration.

Emily Silbernagel confirmed that Matthew had frequently been absent from and tardy to school. During the 2006 school year, Matthew was absent three times and tardy nine. In 2007, he was absent seven times and tardy four; and in 2008, he was absent seven times and tardy three. She attributed the absences to illness, stating that he was out once with the flu and that he suffers from allergies and eczema. Despite the tardiness and absences, however, Emily Silbernagel testified that Matthew’s performance in school has not suffered.

|fiEric Silbernagel testified that the drive from Houma to Metairie was dangerous for Matthew. He recalled that Matthew told him that he occasionally sleeps in the backseat during the commute. Because of that, Eric Silbernagel was concerned about whether Matthew is properly restrained during the commute. He also testified that on the Friday exchanges, Matthew always appeared to be worn out, as if he had a “hectic” week. And in regards to the school absences, Eric Silbernagel testified that Matthew told him that one of the days he was absent, he and his mother “kind of played hookey.”

Eric Silbernagel testified that it would be in Matthew’s best interest to stay with him in Metairie on the days Emily Silber-nagel did not drive to New Orleans to work because it would reduce the drive time and dangers involved in traveling. He also stated that such an arrangement would give Matthew the opportunity to play sports with his friends in Metairie, which he does not get a chance to do often. He testified that Matthew has talked about attending high school in Metairie with his friends and has never mentioned attending school in Terrebonne Parish.

Eric Silbernagel further testified that Matthew is thriving at St. Louis King of France where he has attended since pre-K and that Emily Silbernagel has never stated to him that she felt Matthew was receiving an inadequate education there.

Elliot Levin, the clinical social worker, who was qualified as an expert in custody matters, testified that Matthew felt comfortable with both parents and that it was in Matthew’s best interest to spend as much time with each parent as possible. However, he found that Matthew’s life was in Metairie. Specifically, he noted that all of his family, both paternal and maternal, were there and that he had no family in Houma. He testified that all of Matthew’s friends, who he enjoyed sports with and attended school with, were also in Metair-ie. He found it surprising [ fithat Matthew did not have any friends in Houma, considering the amount of time he has lived there.

When the hearing concluded, the trial court took the matter under advisement. A judgment was rendered on August 31, 2009. The new judgment removed Emily Silbernagel as the domiciliary parent and made both parties co-domiciliary parents. The judgment also ordered that Matthew would remain at his current school and that he would attend school from Eric Silbernagel’s house on the days that Emily Silbernagel did not have to drive to the New Orleans area for work. That change effectively modified the visitation schedule from the alternating seven-day periods which previously existed.

Emily Silbernagel appeals the district court’s judgment, assigning the following errors: the court erred in naming Eric Silbernagel and Emily Silbernagel co-domiciliary parents; the court erred in ordering Matthew to remain in school at St. Louis King of France school; and the court erred in modifying the visitation schedule from alternating seven-day periods.

Discussion

Before addressing the merits of the appeal, we must discuss whether the underlying judgment issued on April 7, 2006, is a considered decree or consent decree. That determination is necessary to establish the burden of proof required for any modification thereof. We must also decide whether that judgment is final.

A “considered decree” is an award of permanent custody in which the trial court receives evidence of parental fitness to exercise care, custody, and control of children. Silbemagel, supra, at 17. (citation omitted). Once a considered decree has been rendered, the proponent of the change bears the heavy burden of proving that a change of circumstances has occurred, such that the continuation of the present custody arrangement is so deleterious to the child as to justify a ^modification of the custody decree, or that harm likely caused by a change of environment is substantially outweighed by its advantages to the child. Id. citing Bergeron v. Bergeron, 492 So.2d 1193, 1200 (La.1986).

A consent decree, on the other hand, is one in which no evidence of parental fitness is presented. Id. (citation omitted). In such a case, the heavy burden of proof rule enunciated in Bergeron does not apply. Silbernagel, supra, at 18. Rather, a party seeking a modification of a consent decree must prove that there has been a material change of circumstances since the original (or previous) custody decree was entered and that the proposed modification is in the best interest of the child. Id.

In this case, the underlying custody decree that was rendered on April 7, 2006, was a considered decree wherein the court received evidence of parental fitness regarding Emily and Eric Silbernagel’s ability to exercise care for their minor child. Therefore, Eric Silbemagel, the proponent of change, bears the burden of meeting the heightened Bergeron standard to modify that decree.

Eric Silbemagel contends, on the other hand, that the heightened Bergeron standard is inapplicable because the April 7, 2006 judgment was not a final judgment due to the following decree contained therein:

IT IS FURTHER ORDERED that the parties appear before this Court for a review of this matter not later than six months following [the] date of this judgment. Mr. Silbemagel will file the appropriate to cause the matter to be set before us.

He argues that this decree makes the judgment provisional, and it was therefore never intended to be a final determination of permanent custody. We disagree.

In Poole v. Poole, 41,960 (La.App. 2 Cir. 1/24/07), 948 So.2d 382, 385, the trial court rendered a judgment which contained a similar decree whereby the parties were prohibited from seeking review or modification of the judgment for 18one year. In that case, the judgment, which named Mr. Poole as the permanent domiciliary parent, contained orders which stated that custody was contingent upon Mrs. Poole behaving appropriately and receiving psychiatric care. Id. The second circuit viewed the judgment as an “interim custody order interlocutory in nature.” Id.

In finding that the judgment was interlocutory in nature, the second circuit in Poole found that the award of permanent domiciliary status to Mr. Poole was contingent upon Mrs. Poole doing certain things. In this case, however, both Eric and Emily Silbernagel were awarded equal physical custody of Matthew. Moreover, the April 2006 judgment stated that “if there is a demonstrated on-going problem with Mrs. Silbernagel in the areas of the factors listed above ... we will consider a change from joint to sole custody in favor of Mr. Silbernagel.” Unlike Poole, the provision in the Silbernagels’ preexisting judgment did not make custody contingent upon either of the parties doing something. It simply provided that if the problem persisted, custody would be revisited.

Furthermore, the Poole court determined that the judgment in that case was not final due to the absence of a trial on the merits. Id. In this case, however, a full trial on the merits took place. Therefore, we find that the judgment rendered on April 7, 2006, was a final considered decree which requires Eric Silbernagel to meet the heightened Bergeron standard to justify any modification thereof.

First and Third Assignments of Error

Turning to the merits of the case, in her first and third assignments of error, Emily Silbernagel contends that the trial court erred by removing her as the domiciliary parent and designating the parties as co-domiciliary parents and by modifying the visitation schedule from alternating seven-day periods.

|3Because the trial court modified a considered decree, Eric Silbernagel, the proponent of change must meet the heightened Bergeron standard to show that the modification was warranted. Failure to meet this burden will result in the reversal of the trial court’s ruling.

The burden of proof enunciated in Ber-geron is two-fold. First, Eric Silbernagel must prove that a material change in circumstances has occurred. If successfully proven, he must then show that maintaining the April 2006 judgment is so deleterious to Matthew or that any harm likely to be caused by modifying the judgment is substantially outweighed by its advantages to Matthew.

We initially note, as Emily Silber-nagel does in her brief, that the parties are physically in the same situation today as they were when the matter was last litigated in 2006. Matthew still travels the highway approximately 1,080 miles per month and Emily Silbernagel and Eric Silberna-gel are still with their same respective employers. At the time of the April 2006 judgment, however, Emily Silbernagel had only been making the commute for four to six months and was of the opinion that the drive was manageable. But at the August 2009 hearing, she testified that through the passage of many years, she realizes the continuous drive endangers Matthew’s life. Eric Silbernagel also agrees that the drive is dangerous for Matthew. We find that this appreciation of the gravity of the danger, which did not previously exist, constitutes a material change of circumstances in this case.

A further material change of circumstances is Matthew’s maturity over the years and all that it entails. Matthew began making the commute when he was only six-years old — at a time when he was not very involved in many after-school or social activities. As he has matured, however, his interest in these types of activities has piqued.

11ftThe testimony indicates that Matthew has expressed an interest in many sports but was not enrolled due to concerns of whether he would be able to attend all the practices and games. Eric Silbernagel testified that Matthew played soccer for approximately two years but had to stop because Emily Silbernagel stated that it became too difficult to bring Matthew back and forth. Eric Silbernagel testified that Matthew missed two of his school’s quarterly sock hops. According to his testimony, Matthew said he missed those sock hops because his mother would not bring him because they were on the weekends at night time.

From 2006-2009, Matthew had 17 unexcused absences and 18 tardies. Despite this however, Matthew’s performance at school did not suffer. We must note that Matthew was in elementary school during that time period. He will soon enter high school where his schedule will increasingly become more challenging. Excessive absences and tardiness in the secondary school environment will place his current success at risk.

Taking into account the totality of the circumstances, we find that a material change in circumstances has occurred such that the continuation of the April 2006 custody agreement would be deleterious to Matthew and that modification thereof was warranted.

First, we find that the constant drive between Houma and Metairie places Matthew in continuous danger as evidenced by the accident he has already been involved in. More importantly, Matthew is being deprived of the very essence of his youth. At six-years old, his world consisted primarily of being surrounded by his family. Now, at eleven, Matthew’s world has gotten bigger. He is interested in sports as well as attending other social events with his friends. But because of the commute, he is forced to miss this very important part of his adolescence. Finally, Matthew is excessively absent from and tardy to school. Though this is not [upresently presenting a problem, it will create a challenge in the future as his school workload becomes more rigorous.

A trial court’s determination of custody is entitled to great weight and will not be reversed on appeal unless an abuse of discretion is clearly shown. Silbernagel, supra, at 17. Accordingly, we find that Eric Silbernagel has met the heightened Bergeron standard and that the trial court did not abuse its discretion in modifying the April 2006 judgment.

Second Assignment of Error

In her second assignment of error, Emily Silbernagel contends that the trial court erred in ordering Matthew to remain at St. Louis King of France school. As this Court previously stated, “a child’s successful continuation of his or her education in a proven academic environment is generally found to be in his or her best interest.” Silbernagel, supra at 19. (citations omitted). During the trial, Emily Silbernagel, Eric Silbernagel, and Mr. Levin testified that Matthew was thriving at St. Louis King of France and that he was on the Beta Honor Roll. We thus find no error in the trial court’s ruling ordering Matthew to remain at St. Louis King of France school.

CONCLUSION

For the foregoing reasons, the judgment of the trial court ordering Matthew’s continued attendance at St. Louis King of France school is affirmed. The portion of the judgment naming Eric Silbernagel and Emily Silbernagel as co-domiciliary parents is affirmed. The portion of the judgment ordering Matthew to attend school from Eric Silbernagel’s house when Emily Silbernagel does not have to work in New Orleans is also affirmed. The other portions of the judgment were not appealed.

AFFIRMED

      . Bergeron v. Bergeron, 492 So.2d 1193 (La. 1986).

      . Emily Silbernagel’s rule was dismissed because Jefferson Parish retained exclusive continuing jurisdiction. La. R.S. 13:1814(A)(1) provides: "Except as otherwise provided in R.S. 13:1816, a court of this state which has made a child custody determination consistent with R.S. 13:1813 or 1815 has exclusive, continuing jurisdiction over the determination until a court of this state determines that neither the child, nor the child and one parent, nor the child and a person acting as a parent have a significant connection with this state and that substantial evidence is no longer available in this state concerning the child's care, protection, training, and personal relationships.”

      . Although Emily Silbernagel testified that Matthew may have missed school due to illnesses, the absentee report generated by Matthew’s school indicates that all of the absences were unexcused.


text:
    Philip MONIER, Jr. v. ST. CHARLES PARISH SCHOOL BOARD.
    No. 10-CA-526.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 10, 2011.

      Charles E. Bourg, II, Attorney at Law, Morgan City, LA, for PlaintiffiAppellant.
    Alvin J. Bordelon, Jr., Andrew C. Abrams, Attorneys at Law, Metairie, LA, for Defendant/Appellee.
    Panel composed of Judges FREDERICKA HOMBERG WICKER, MARC E. JOHNSON, and HILLARY J. CRAIN, Pro Tempore.
   MARC E. JOHNSON, Judge.

12This appeal arises from the granting of a Motion for Summary Judgment in favor of Defendant/Appellee, St. Charles Parish School Board (hereinafter referred to as “the Board”), and against PlaintiffiAppel-lant, Philip Monier, Jr., from the 29th Judicial District Court, Division “E”. For the following reasons, we affirm the decision of the trial court.

FACTS AND PROCEDURAL HISTORY

According to the record, the Board hired Plaintiff as a special education teacher on June 6, 2007. The school board assigned Plaintiff to teach a “severe and profound” class at Hahnville High during the 2008-2009 school year. On August 20, 2008, Luana Comardelle, a para-educator assigned to assist Plaintiff with his class, filed an Incident Report claiming Plaintiff used excessive force in restraining a special needs student (hereinafter referred to as “C.T.”) by grabbing and twisting his arm, and then hitting him on top of the head with a closed fist.

Erick Treuting, the Human Resources Assistant, conducted an investigation of the alleged incident. He advised Plaintiff of the complaint filed by Ms. |3Comardelle. Mr. Treuting took Plaintiffs written statement and the written statements of several others from the school. Lorel Gonzales, Principal of Hahnville High, also discussed the incident with Plaintiff and gave him the opportunity to explain his side of the incident.

Mr. Treuting concluded his investigation of the incident on August 22, 2008. He reported to Principal Gonzales that, in his professional opinion, Plaintiff did use excessive force when restraining C.T. In turn, Principal Gonzales recommended to Felicia Gomez, the Assistant Superintendent, that Plaintiff be suspended without pay for a duration to be determined by the Superintendent, Dr. Rodney Lafon. Ms. Gomez approved the recommendation and submitted it to Dr. Lafon. Dr. Lafon authorized a two-day suspension without pay. On August 25, 2008, Paul Gibson, the Human Resources Director, informed Plaintiff of his two-day suspension without pay.

On August 27, 2008, Plaintiff wrote Dr. Lafon a letter protesting that he had not been afforded his rights pursuant to LSA-R.S. 17:416.18, the Teacher Bill of Rights statute. In his letter, Plaintiff asserted that he had a right to self-defense and had a duty to protect his students. On August 29, 2008, Dr. Lafon responded through a reply letter and advised Plaintiff that he had been afforded opportunities to explain his side of the incident, and he had received ample procedural due process. Dr. Lafon found there was no reason to afford Plaintiff any further hearing and invited Plaintiff to prepare a rebuttal to the two-day suspension in accordance with the Board’s policy. In accordance with those procedures, Dr. Lafon also informed Plaintiff that his rebuttal would be made a part of his permanent personnel record.

On October 17, 2008, Plaintiff requested extended sick leave through December 3, 2008. Plaintiff cited extreme anxiety, per his physician’s letter, as the Rreason for requesting the sick leave. In a letter dated October 15, 2008, Plaintiffs physician, Dr. Eric Engeron, explained that he felt it was medically necessary that Plaintiff be granted an extended leave of thirty (30) days due to Plaintiffs extreme anxiety related to his work situation. Plaintiffs extended sick leave request was granted the same day he submitted it. On January 5, 2009, Plaintiff tendered a letter of resignation from his position as a special education teacher at Hahnville High to the Board.

Plaintiff filed a suit against the Board on August 3, 2009. In the action, Plaintiff sought repayment from the Board for the two days of pay he lost during the suspension, damages for failure to provide a safe learning and teaching environment, and any other damages the trial court would find to be appropriate. The Board answered the petition and subsequently filed a Motion for Summary Judgment on December 16, 2009.

At the hearing on the Motion for Summary Judgment held on January 21, 2010, the trial court granted the Board’s motion. The trial court found the Board did conduct an investigation and afforded Plaintiff administrative due process, and there were no remaining genuine issues of material fact. Additionally, the trial court found there is no private cause of action created under the Teacher Bill of Rights and found no genuine issue of material fact on that claim. The judgment was signed on January 28, 2010, dismissing Plaintiffs action with prejudice at Plaintiffs cost. The instant appeal was filed by Plaintiff to review the trial court’s granting of the summary judgment in favor of the Board.

ASSIGNMENTS OF ERROR

On appeal, Plaintiff alleges the trial court erred by 1) granting the summary judgment because there were issues of fact that were in dispute regarding the two-day suspension and loss of pay; 2) finding that the issues of failure to provide a |5safe place to teach and the resultant stress placed on Plaintiff were addressed under LSA-R.S. 17:416.18; 3) not addressing the issue of damages which Plaintiff claimed because he was not a tenured employee; and, 4) granting the summary judgment when no evidence was presented by defense counsel and considering only argument.

LAW AND ANALYSIS

Assignment of Error 1

Plaintiff alleges that the trial court erred by granting the summary judgment because there were genuine issues of material fact remaining in regard to his two-day suspension from work and his loss of pay. Plaintiff argues that the issue before the trial court was not whether he used excessive force toward C.T.; conversely, Plaintiff argues that the issue properly before the trial court was whether he contracted to be a bouncer in his special education class. Plaintiff further argues the issue is not one that summary judgment should be used to determine.

In response to Plaintiffs argument, the Board asserts Plaintiff was afforded all rights of due process to which he was entitled. Additionally, the Board asserts that Plaintiff was a non-tenured teacher with no property interest in his job, and Plaintiff could be freely terminated by merely articulating a valid reason. Because Plaintiff lacked the property right predicate, the Board argues that he was not entitled to a hearing and has no legal cause for violation of due process.

Appellate courts review summary judgments de novo, using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate, asking whether there is any genuine issue of material fact, and whether the mover is entitled to judgment as a matter of law. State ex rel. Dept. of Transp. and Development v. Central Gulf Towing, L.L.C., 07-166, 07-167, p. 4 (La.App. 5 Cir. 10/30/07); 971 So.2d 1163, 1164, writ denied, 07-2304 (La.1/25/08); 973 So.2d 761. A fact is material if it potentially insures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the legal dispute. Id. A genuine issue is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate. Id., citing Hines v. Garrett, 04-0806 (La.6/25/04); 876 So.2d 764.

The mover in a motion for summary judgment bears the burden of proof; however, the mover needs only to “point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim ...” Fossier v. Jefferson Parish, 07-926, p. 9 (La. App. 5 Cir. 4/15/08); 985 So.2d 255, 259, citing LSA-C.C.P. art. 966(C)(2). If a defendant moving for summary judgment has made a prima facie showing that the motion should be granted, the burden shifts to the adverse party to present evidence demonstrating that material factual issues remain. Id. The failure of the non-moving party to produce evidence of a material factual dispute mandates the granting of the motion. Hutchinson v. Knights of Columbus, Council No. 5747, 03-1533, p. 7 (La.2/20/04); 866 So.2d 228, 233.

In the instant case, we find that the issue that was properly before the trial court was whether there were any genuine issues of material fact regarding Plaintiffs entitlement to the repayment of the salary lost as a result of his two-day suspension. The trial court found that there were no genuine issues of material fact and that Plaintiff was afforded administrative due process through the Board’s investigation into the complaint raised against him, which provided an opportunity to explain his side of the incident. We agree with the trial court.

The requirements of procedural due process apply only to the deprivation of |7interests encompassed by the Fourteenth Amendment’s protection of liberty and property. Board of Regents v. Roth, 408 U.S. 564, 570, 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 paramount. Id. Due process is a flexible standard and calls for such procedural protections as the particular situation demands. Wilson v. Jefferson Parish Department of Parks & Recreation, 95-470, p. 5 (La.App. 5 Cir. 1/17/96); 668 So.2d 1167, 1170, writ denied, 96-0413 (La.4/19/96, 671 So.2d 927), citing Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). Due process is not a technical conception with a fixed content regardless of the time, place and circumstances. Frye v. Louisiana State University Medical Center in New Orleans, 584 So.2d 259, 261 (La.App. 1st Cir.1991).

Here, Plaintiff was suspended for two days without pay as a result of the complaint he used excessive force on C.T. Plaintiff was given notice of the disciplinary action by the Board and was afforded the opportunity to defend himself against the complaint, which he did exercise. We adopt the view of the Louisiana First Circuit in finding that the right to notice and a hearing depends upon the nature of the private interest involved. See Frye v. Louisiana State University Medical Center, supra. In Frye, the court declined to find the private interest of one day’s pay significant enough to require a due process notice and hearing. Id. at 262. Likewise, we also decline to find Plaintiffs loss of pay from a two-day suspension requires notice and a hearing.

After reviewing the circumstances of this case, we find that there were no remaining issues of material fact because Plaintiff had no right to an administrative hearing regarding his two-day suspension. Therefore, we find that this assignment of error has no merit.

1 sAssignments of Error 2 and 3

Plaintiff argues that, although he was a non-tenured teacher, a safe place to teach is a protected right under both state and federal law. Plaintiff asserts that it is clear from his affidavit that C.T. is a large individual and has a history of violent behavior. Plaintiff also argues that the issue of his right to damages was not addressed by the trial court. Plaintiff avers that he was forced to use sick leave due to the stress of the lack of order in his classroom and persistent violence directed towards him. Plaintiff asserts the Board constructively terminated him by refusing to follow LSA-R.S. 17:416.18.

The Board counters Plaintiffs position by arguing that Plaintiff tendered a letter of resignation, and he admitted that no one from the Board asked him to resign or forced him to resign. The Board also argues that Plaintiffs letter of resignation provides no reason for his resignation. Additionally, the Board argues the Teacher Bill of Rights does not guarantee freedom from job stress and does not provide Plaintiff with any independent cause of action or right of redress.

LSA-R.S. 17:416.18 provides the following regarding a safe teaching environment:

(5) A teacher has the right to teach in a safe, secure, and orderly environment that is conducive to learning and free from recognized dangers or hazards that are causing or likely to cause serious injury in accordance with R.S. 17:416.9 and 416.16.

The trial court found there was no private cause of action that is created under the Teacher Bill of Rights and found no genuine issue of material fact regarding Plaintiffs claim. We agree. The Louisiana legislature did not provide for a remedy to any violation of the rights afforded in the Teacher Bill of Rights. If the legislature intended for there to be a remedy, it certainly could have provided one. See Voltolina v. St. Tammany Fire Dist. 12, 06-1498, p. 5 (La.App. 1 Cir. 9/19/07); 970 So.2d 1015, 1018. Because there is no remedy that is afforded by the Teacher Bill of Rights, Plaintiffs claims under that statute do not give rise to a cause of action.

Therefore, we find that the trial court did not err in granting the summary judgment on issues concerning the Teacher Bill of Rights. These assignments of error lack merit.

Assignment of Error k

Plaintiff argues that the summary judgment granted by the trial court was not supported by the record or law. Plaintiff asserts the only affidavits in the record are his affidavits, and there were no depositions filed by the Board. As a result, Plaintiff also argues there was no evidence submitted to the trial court on which it could grant a summary judgment.

LSA-C.C.P. art. 966(A)(1) states,

The plaintiff or defendant in the principal or any incidental action, with or without supporting affidavits, may move for a summary judgment in his favor for all or part of the relief for which he has prayed. The plaintiffs motion may be made at any time after the answer has been filed. The defendant’s motion may be made at any time.

LSA-C.C.P. art. 966(B) further states, “[t]he judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.”

In support of its Motion for Summary Judgment, the Board submitted unsworn statements from four of Plaintiffs coworkers who witnessed Plaintiff interact with C.T. on different occasions, letters regarding Plaintiffs investigation and the disciplinary action taken against him, Plaintiffs request for extended sick leave, and Plaintiffs letter of resignation. In support of his opposition to the Motion for Summary Judgment, Plaintiff submitted an affidavit attesting to his |inrecount of incidents involving C.T., a statement of Webster’s Dictionary definition of “bouncer,” and copies of LSA-R.S. 17:416.18, LSA-R.S. 14:18, and LSA-R.S. 14:19.

A document which is not an affidavit or sworn to in any way, or which is not certified or attached to an affidavit, is not of sufficient evidentiary quality to be given weight in determining whether or not there remain genuine issues of material fact. Murphy v. L & L Marine Transp., Inc., 97-38, p. 6 (La.App. 5 Cir. 5/28/97); 695 So.2d 1045, 1048.

The Board did not submit statements of witnesses that could be given weight in determining whether or not there remained genuine issues of material fact. On the other hand, Plaintiffs self-serving affidavit attested to his innocence in reference to the incident involving C.T., and not to whether he was entitled to a due process administrative hearing. Plaintiffs affidavit was irrelevant to the issue before the trial court. Because of these facts, we must consider the pleadings and admissions on file to determine whether the summary judgment should have been granted.

In order for the Board to succeed on its Motion for Summary Judgment, it had to prove that Plaintiff was not entitled to a due process hearing. In the Board’s Statement of Undisputed Material Fact, it was uncontested that Plaintiff was a nontenured teacher who was suspended for two days for an incident that occurred with C.T. With the support of the jurisprudence cited in the previous assignments of error, this information alone is sufficient to prove that there were no remaining genuine issues of material fact as to whether Plaintiff was denied any due process rights.

Therefore, we find this assignment of error lacks merit.

DECREE

|nBased upon the foregoing, we find that the trial court did not err in granting the Board’s Motion for Summary Judgment. Plaintiff is to bear the costs of this appeal.

AFFIRMED

      . Pursuant to Rules 5-1 and 5-2 of the Uniform Rules — Courts of Appeal, the initials of the juvenile involved in this matter will be used to protect the minor’s identity.

      . Assignments of error two and three are interrelated and will be addressed together.


author: JUDE G. GRAVOIS, Judge.

text:
    Maritza Rodriguez GUERRERO v. Joseph GUERRERO.
    No. 10-CA-930.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 10, 2011.
    Rehearing Denied July 18, 2011.

      Susan H. Neathamer, Attorney at Law, Gretna, LA, for Plaintiff/Appellee.
    Ralph E. Smith, Attorney at Law, Me-tairie, LA, for Defendant/Appellant.
    Panel composed of Judges SUSAN M. CHEHARDY, JUDE G. GRAVOIS, and MARC E. JOHNSON.
   JUDE G. GRAVOIS, Judge.

| j>Defendant/appellant Joseph Guerrero appeals the trial court’s judgment of May 25, 2010 that held him in contempt of court for his failure to pay his ex-wife previously ordered retirement benefit arrearages, attorney’s fees and court costs.

These proceedings stem from plaintiff/appellee Maritza Rodriguez Guerrero’s Motion and Order to Amend Consent Judgment for Partition of Community Property and Motion for Contempt requesting that the trial court amend the language of the parties’ 1996 Consent Judgment partitioning their community property in order to facilitate collection of her community portion of Mr. Guerrero’s retirement benefit from the payor, The United States Navy. Over the course of several hearings, the trial court amended the 1996 Consent Judgment, as requested by Mrs. Guerrero, found Mr. Guerrero in contempt thereof, and ordered him to pay retirement benefit arrearages, attorney’s fees and court costs. On appeal, Mr. Guerrero argues that he is entitled to the protection of The Soldiers and Sailors Civil Relief Act, 50 App. U.S.C. § 520, et seq., and that the trial court was without jurisdiction to amend the Consent Judgment because the amendment impermissibly altered the substance of the judgment. He further argues that the | .¡trial court was without authority to hold him in contempt for failure to satisfy this invalid judgment.

For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

This case has a labyrinthine procedural history that we attempt to untangle below.

The plaintiff, Maritza Rodriguez Guerrero, and the defendant, Joseph Guerrero, were married in South Carolina on February 3, 1972, and at some point established their marital domicile in the Parish of Jefferson. Mrs. Guerrero filed a Petition for Divorce against Mr. Guerrero in Jefferson Parish on May 21, 1993. They were divorced in Jefferson Parish on July 27, 1994. On December 4, 1996, the parties entered into a Consent Judgment for Partition of Community Property, which contained two provisions pertinent to this appeal. First, subsection 2 in the section entitled “To Maritza Rodriguez” provides as follows:

Maritza Guerrero shall receive, and does hereby receive, her portion of Joseph Guerrero’s Federal retirement plan with the United States Navy, pursuant to the Simms [sic] case formula (Sims v. Sims, 358 So.2d 919 (La.1978)), and the parties stipulate that there are twenty-one (21) years of community service.

Second, the following paragraph is included in the general provisions of the Consent Judgment:

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that should any of the partitioned property be insufficiently or incorrectly described herein, either party shall immediately, when called upon to do so by the other party in writing, execute such amendatory acts as many [sic] be necessary or required to vest title in the proper party or to sufficiently or correctly describe the property, without additional consideration being given.

The instant proceedings began on October 10, 2008 when Mrs. Guerrero filed a Motion and Order to Amend Consent Judgment for Partition of Community 14Property and Motion for Contempt. Therein, citing the two provisions of the Consent Judgment quoted above, Mrs. Guerrero alleged that in 2008, she learned that Mr. Guerrero had retired from the Navy sometime in 2006, had failed to inform her of that fact, and had further failed to pay her rightful portion of his monthly retirement benefit as per the Consent Judgment. After contacting the payor and receiving information as to how to apply to receive her share of Mr. Guerrero’s monthly retirement benefit, Mrs. Guerrero contacted Mr. Guerrero in writing and sought from him an amendment of the Consent Judgment to express her portion of the retirement benefit as a specific percentage calculated by the months of community service rather the years of community service, as per the directive of the payor. After Mr. Guerrero failed to respond, Mrs. Guerrero filed the Motion to Amend and for Contempt, wherein she sought not only the requested amending language, but also retirement benefit arrearages, attorney’s fees, and costs associated with the Motion. Mrs. Guerrero also requested that Mr. Guerrero be found in contempt of court for willfully disobeying/refusing to comply with the Consent Judgment.

The record shows that although correspondence was exchanged between Mrs. Guerrero’s and Mr. Guerrero’s counsels concerning the Motion to Amend, Mr. Guerrero failed to appear at the hearing held before the hearing officer on December 18, 2008, nor at the hearing held before the district court on January 9, 2009. On February 26, 2009, the district court rendered a “default” judgment in favor of Mrs. Guerrero on the Motion to Amend, noting that she presented proof that Mr. Guerrero had been served with the Motion to Amend, yet failed to appear. The judgment rendered the amendatory language as requested by Mrs. Guerrero. |BThe judgment did not hold Mr. Guerrero in contempt as requested, however, but ordered the arrearages due to Mrs. Guerrero be calculated, ordered Mr. Guerrero to pay Mrs. Guerrero an unspecific sum at some future date after the amount of arrearages had been calculated, and ordered Mr. Guerrero to pay Mrs. Guerrero’s attorney’s fees and court costs in the amount of $2,409.69 incurred through January 9, 2009 by May 26, 2009, as prayed for.

The record contains no additional pleadings until July 29, 2009, four months later, when Mr. Guerrero filed a Petition to Annul Judgment, arguing that the “default” judgment rendered by the court on February 26, 2009 should be declared null because Mr. Guerrero had never been served with the Motion to Amend or notice of the judgment.

Thereafter, the parties filed other motions that were heard on October 27, 2009. A judgment on November 20, 2009 set all matters before the court for trial on February 10, 2010. The judgment further set discovery cut-off dates and ruled on other housekeeping matters. On October 27, 2009, Mrs. Guerrero filed a Dilatory Exception of Unauthorized Use of Summary Proceedings with Incorporated Memorandum that was referred to the February 10, 2010 trial.

On November 17, 2009, Mrs. Guerrero filed a Motion to Compel Discovery, and for Attorney Fees and Court Costs, which was heard on January 13, 2010 and granted in a judgment dated January 15, 2010.

On January 25, 2010, Mr. Guerrero filed a Peremptory Exception to Dismiss Amended Petition for Lack of Jurisdiction, suggesting that the court lacked | (jurisdiction to hear the Motion to Amend Consent Judgment as per 10 U.S.C. § 1223. Mrs. Guerrero opposed the Exception, pointing out that the proper way to except to the court’s jurisdiction was by declinatory, not peremptory, exception. She further noted that nowhere in his Petition to Annul did Mr. Guerrero object to the court’s jurisdiction. The peremptory exception was referred to the trial on February 10, 2010.

On February 3, 2010, Mrs. Guerrero filed a Motion and Order for Contempt, contending that Mr. Guerrero had again failed to respond to discovery previously ordered by the court on January 15, 2010, and should thus be found in contempt of court. The matter was set to be heard with the other matters set for trial on February 10, 2010.

Trial of the various motions, petitions, and exceptions occurred on February 10, 2010, at which both parties and their counsel appeared. The trial court ruled from the bench, followed by a written judgment on March 1, 2010. The trial court found Mr. Guerrero in contempt of court for his willful disobedience of the court’s previous orders for his failure to respond to discovery as ordered by the court’s January 15, 2010 judgment. The judgment denied Mr. Guerrero’s Peremptory Exception to jurisdiction, but granted Mrs. Guerrero’s Dilatory Exception of Unauthorized Use of Summary Proceedings.

The judgment further denied Mr. Guerrero’s Petition to Annul Default Judgment, finding that he admitted at the hearing to receiving proper service of the Motion to Amend. The judgment further decreed that the February 26, 2009 judgment be made “executory.” The court additionally cast Mr. Guerrero with attorney’s fees in the amount of $5,000 and court costs in the amount of $1,336.11 to be paid not later than April 12, 2010. Mr. Guerrero was further ordered to |7provide Mrs. Guerrero with all information concerning his military retirement for the period of July 1, 2006 through August 1, 2009 in order to determine the full amount of arrearages owed to Mrs. Guerrero. The judgment further ordered Mr. Guerrero to pay Mrs. Guerrero $3,000 per month commencing on May 12, 2010 towards any and all arrearages of retirement pay due her. The judgment provided for further proceedings should the parties not agree on the amount of ar-rearages owed to Mrs. Guerrero. The judgment ruled that Mr. Guerrero’s wages would not be garnished at that time to satisfy the arrearages, although it implied the possibility of future garnishment.

On April 1, 2010, Mr. Guerrero filed a Motion for New Trial, arguing that the judgment on the Motion to Amend (rendered on February 10, 2010 and signed on March 1, 2010) exceeded the scope allowed by LSA-C.C.P. art. 1951 in that the Consent Judgment did not include an award of future retirement benefits to Mrs. Guerrero. Mr. Guerrero further argued that Mrs. Guerrero had remarried and thus was not entitled to “post divorce payments” under the Former Spouses Protection Act (no citation given). He also argued that the Sims case was not applicable to reservists like Mr. Guerrero.

Next, on April 19, 2010, Mr. Guerrero filed a Petition and Order for Appeal, representing that a final judgment was rendered in the above entitled matter “as of April 15, 2010,” and that he prayed that the Court would “grant a suspensive appeal from the Judgment expected to be rendered on or about April 16, 2010.” The trial court denied the Petition for Suspen-sive Appeal on April 23, 2010, with a handwritten note:

| ^Pursuant to C.C.P. Art. 2123 the delay for taking a suspensive appeal is 30 days from the expiration of the delay for applying for a new trial. Judgment signed on March 1, 2010. X J B Darensburg

On April 23, 2010, Mrs. Guerrero filed a Motion and Order for Contempt, contending that Mr. Guerrero had willfully disregarded the court’s judgment of February 10, 2010 in that he had failed to pay her the $5,000 in attorney’s fees and $1,336.11 in court costs as previously ordered therein.

On May 11, 2010, Mrs. Guerrero filed a pleading styled as “Peremptory Exception of Prescription with Incorporated Memorandum.” Therein, she argued that Mr. Guerrero’s Motion for New Trial, filed on April 1, 2010, was untimely, the underlying judgment having been filed into the record on March 1, 2010, with a certified copy having been forwarded to Mr. Guerrero’s counsel by certified mail, with a return receipt therefor showing delivery on March 4, 2010. She also argued that the Motion for New Trial violated LSA-C.C.P. art. 863 in that it contained unverified (and untrue) allegations that Mrs. Guerrero had remarried after her divorce from Mr. Guerrero.

Mr. Guerrero opposed the Exception of Prescription, arguing that there was no evidence that he was served with Notice of the March 1, 2010 judgment, as required by LSA-C.C.P. art. 1974, and thus the time for filing a motion for new trial had not yet begun. (Mr. Guerrero did note, however, that he had complied with other parts of that judgment in that he provided “all retirement information” to Mrs. Guerrero within the time limits set therein.)

Mr. Guerrero also responded to Mrs. Guerrero’s April 23, 2010 Motion for Contempt, arguing that the district court’s award to her of $3,000 per month towards arrearages (in the February 10, 2010/ March 1, 2010 judgment) was an | impermissible amendment of the Consent Judgment and outside the scope of LSA-C.C.P. art. 1951.

Further opposing Mr. Guerrero’s Motion for New Trial, Mrs. Guerrero asserted in a Response filed on May 25, 2010 that Notice of the signing of judgment on March 1, 2010 was not required by LSA-C.C.P. arts. 1913 or 1914 because the judgment was rendered in open court immediately following the trial.

These matters came for hearing on May 25, 2010. In open court, the trial court denied Mr. Guerrero’s Motion for New Trial, and granted Mrs. Guerrero’s Exception of Prescription. Mr. Guerrero was found in contempt of court and ordered to pay Mrs. Guerrero’s counsel the previously ordered attorney’s fees of $5,000 and court costs of $1,336.11, and was also ordered to pay Mrs. Guerrero the previously ordered sum of $3,000 within 10 days of the hearing date of May 25, 2010, or be subject to jail time. Mr. Guerrero was cast with additional attorney’s fees and court costs, payable within sixty days of the judgment. Finally, the court ordered immediate garnishment of Mr. Guerrero’s wages until the arrearages of $99,936.78 owed to Mrs. Guerrero was satisfied. A judgment to this effect was signed on June 10, 2010. Notice of judgment was mailed to the parties on June 15, 2010. Written reasons were entered into the record on June 23, 2010.

Mr. Guerrero filed a Petition and Order for Appeal on May 27, 2010. The trial court granted the Petition for Appeal but “only regarding the Issue of Motion for New Trial, Prescription, & fees related to the hearing on May 25, and garnishment” (by handwritten note on the Order for appeal).

Mr. Guerrero filed another Petition and Order for Appeal on June 25, 2010, praying for a suspensive appeal from the judgment rendered on May 24, 2010. [ inThe trial court granted the Petition, however limiting the appeal to “Only for Rule for Contempt Issue.” Mr. Guerrero filed an Appeal Bond on July 20, 2010.

FIRST ASSIGNMENT OF ERROR

Mr. Guerrero argues in his first assignment of error that the judgments against him were taken in violation of the Soldiers and Sailors Relief Act. He argues that Mrs. Guerrero instituted these proceedings without including the required non-military affidavit.

The Soldiers and Sailors Relief Act of 1940 was succeeded by the Servicemem-bers Civil Relief Act, 50 App. U.S.C. § 520, et seq., effective in December of 2003. Its provisions are applicable to active service members. The purpose of this section is to protect persons in the military from having default judgments entered against them without their knowledge. It does not prevent entry of such a judgment when there has been notice of pendency of the action and adequate time and opportunity to appear and defend. Roqueplot v. Roqueplot, 410 N.E.2d 441, 43 Ill.Dec. 441, 88 Ill.App.3d 59.

The record fails to support Mr. Guerrero’s claim. The instant proceedings were brought because Mrs. Guerrero had learned that Mr. Guerrero retired from active service in the United States Navy in 2006, a fact that Mrs. Guerrero proved and Mr. Guerrero admitted. The record and testimony showed that Mr. Guerrero was not employed by the military during any time in these current proceedings, but rather was employed by a private company which provided consulting services to the armed forces of the Central African Republic. As such, Mr. Guerrero failed to show that he was entitled to application of the provisions of this Act.

Further, in any event, the record shows that Mr. Guerrero’s counsel had notice of the action and Mrs. Guerrero proved at the hearing on the Petition to | ¶, Annul Default Judgment that she properly served Mr. Guerrero. We find no merit to this assignment of error.

SECOND ASSIGNMENT OF ERROR

Mr. Guerrero next argues that the court was without jurisdiction to amend the 1996 Consent Judgment except to make corrections and calculations of the figures thereof. He argues that the trial court went beyond the scope of LSA-C.C.P. art. 1951 when it awarded damages, court costs, and attorney’s fees not contemplated in the Consent Judgment; in particular, the February 10, 2010 judgment’s awards of $3,000 per month to Mrs. Guerrero for arrearag-es, and the awards for attorney’s fees of $5,000 and court costs of $1,336.11.

In response, Mrs. Guerrero argues that Mr. Guerrero’s appeal of the relief granted in the judgment on the Motion to Amend is not timely, with the only issue properly on appeal before this court being the contempt finding made on May 25, 2010. Mr. Guerrero was held in contempt of court on May 25, 2010, and was cast with various costs and attorney’s fees. As noted above, he filed two motions for appeal regarding that judgment, both well within the time delays for an appeal. Thus, his appeals of the May 25, 2010 contempt judgment are timely.

Mr. Guerrero did not, however, appeal the February 26, 2009 judgment, wherein the court granted the motion to amend the language of the Consent Judgment. Four months after that judgment’s rendition, Mr. Guerrero filed a Petition to Annul the judgment, arguing only that he did not receive service of the Motion to Amend nor notice of the judgment rendered on February 26, 2009. These claims were found to have no merit at the hearing on the Petition to Annul held on February 10, 2010, whereupon the trial judge denied the Petition to Annul.

112An action for nullity is “not a substitute for an appeal from a judgment that might be erroneous due to insufficient evidence or a misinterpretation of substantive law but is a separate remedy designed to afford relief to a party against a judgment procured by methods viewed with disdain by the judiciary.” Andrus v. Chrysler Fin. Corp., 99-105, p. 7 (La.App. 8 Cir. 6/2/99), 741 So.2d 780, 784, writ denied, 99-1968 (La.10/15/99), 748 So.2d 1150. Accordingly, as the Petition to Annul was denied, the trial court finding no merit to Mr. Guerrero’s claim of lack of service, and also because no timely appeal was filed from the February 26, 2009 judgment, that portion of the judgment that granted Mrs. Guerrero’s request to amend the language of the Consent Judgment is final and not before this court.

In any event, the amendment to the language of the Consent Judgment was within the scope of relief authorized by LSA-C.C.P. art. 1951. In the trial court’s judgment of February 26, 2009, the Consent Judgment’s language was amended to express Mrs. Guerrero’s portion of Mr. Guerrero’s retirement benefit in terms of months rather than years, as per the Sims formula. Other courts have held that this sort of amendment is a change in phraseology authorized by LSA-C.C.P. art. 1951 and is thus permissible. See Kerr v. Kerr, 479 So.2d 977 (La.App. 3 Cir.1985). Further, C.C.P. art. 1951 states that a final judgment may be amended by the trial court on the motion of any party or on its own motion, at any time. Thus, the trial court did not err in awarding Mrs. Guerrero this relief in its February 26, 2009 judgment.

In his petitions for appeal and his appellate brief, Mr. Guerrero argues that the trial court’s judgments awarding Mrs. Guerrero arrearages, attorney’s fees, and court costs as a result of being held in contempt of court went beyond the scope of the Motion to Amend and the authority of LSA-C.C.P. art. 1951, and thus those 11sportions of the judgments must be reversed because he cannot be held in contempt of an invalid judgment. We find the February 10, 2010 judgment valid, however.

Mrs. Guerrero’s Motion to Amend clearly sought relief in addition to the amending language; it sought arrearages, attorney’s fees, court costs, and a contempt finding, not merely an amendment of the Consent Judgment. This relief was in addition to the relief granted under LSA-C.C.P. art. 1951. As noted above, Mr. Guerrero was not held in contempt on February 26, 2009, when the trial court rendered the amending language. Mr. Guerrero was not cast in judgment for the $5,000 in attorney’s fees, $1,336.11 in court costs, and $3,000 per month in arrearages until the trial court’s judgment of February 10, 2010, which followed a full trial and was rendered in open court in the presence of Mr. Guerrero. This relief did not constitute an amendment of the 1996 Consent Judgment; it was granted as a result of Mr. Guerrero’s failure to obey the 1996 Consent Judgment.

Mr. Guerrero’s particular arguments regarding the validity of the February 10, 2010 judgment are without merit. As previously noted, the amending language was rendered in the February 26, 2009 judgment, which was not appealed. The awards of arrearages, attorney’s fees, and court costs were awarded after a full trial on the merits on February 10, 2010, at which Mr. Guerrero and his counsel appeared. The court did not hold Mr. Guerrero in contempt of court for failure to pay those sums until its judgment of May 25, 2010, at which Mr. Guerrero and his [ ucounsel also appeared. Mr. Guerrero has failed to advance on appeal any credible argument that the judgment rendered at the February 10, 2010 trial is invalid. Thus, the trial court did not err in holding Mr. Guerrero in contempt of that judgment in its judgment of May 25, 2010.

Mr. Guerrero also argues in brief that Mrs. Guerrero is not entitled to a portion of his retirement benefits because at the time of the entry of the Consent Judgment, he was not eligible for retirement. He further argues that there is nothing in the record to indicate that Mrs. Guerrero ever made any claim for any portion of his retirement benefit subsequent to the entry of the 1996 Consent Judgment. These arguments are clearly without merit and further are not the subject of any judgment before this Court on appeal. Regardless, the 1996 Consent Judgment clearly established that Mrs. Guerrero was entitled to a portion of Mr. Guerrero’s retirement benefit based upon the community years of service. The fact that Mr. Guerrero had not yet retired in 1996 was irrelevant to that determination.

Finally, the record reflects that Mr. Guerrero did in fact retire from the Navy in 2006, notwithstanding his statements to the contrary in his brief. The record also shows that Mrs. Guerrero used the amended Judgment to complete her application with the payor and has been receiving a portion of Mr. Guerrero’s current monthly retirement benefit, Mr. Guerrero’s unsupported claim in brief that she needed a judgment from the Department of Defense to do so notwithstanding.

SANCTIONS FOR FRIVOLOUS APPEAL

In her appellate brief, Mrs. Guerrero asks that this court award additional sanctions and additional sums for Mr. Guerrero’s frivolous appeal. However meritorious her request in brief may be, as Mrs. Guerrero neither answered this | ^appeal nor filed her own notice of appeal, this court is without authority to make such an award. Eckert v. Roux, 09-1016 (La.App. 5 Cir. 3/23/10), 39 So.3d 636.

CONCLUSION

For the reasons stated above, the judgments on appeal are affirmed. Costs of this appeal are taxed to defendant/appellant, Mr. Guerrero.

AFFIRMED

      . It appears that the amendatory language was immediately effective, given references in the record and transcript that soon thereafter, Mrs. Guerrero presented the amended judgment to the payor and began receiving a portion of Mr. Guerrero's monthly retirement benefit directly from the payor. However, other portions of the judgment, particularly the calculations of the arrearages and the awards of costs and attorney’s fees, were not enforced until approximately one year later, after a full trial on the merits, by the court’s judgment of February 10, 2010.

      . These motions included Mrs. Guerrero’s Petition for Letters Rogatory, Motion and Order to Re-Set Purge Date for Contempt and Motion to Make Judgment Executory and for Garnishment of Wages, and Motion and Order for Sanctions Pursuant to Art. 863. Meanwhile, Mr. Guerrero filed a Memorandum in Support of his Petition to Annul Judgment and an Opposition to Mrs. Guerrero's Motion and Order to Re-Set Purge Date.

      . From the substance of his argument, it appears that Mr. Guerrero meant the Motion and Order to Amend Consent Judgment, not the “Amended Petition.”

      . The Servicemembers Civil Relief Act (cited by Mr. Guerrero as The Soldiers and Sailors Relief Act), to which it appears Mr. Guerrero cites, is found at 50 App. U.S.C. § 520, et seq.

      . The denial of the suspensive appeal appeared to be a denial of any kind of appeal, including a devolutive one. The record does not show that counsel for Mr. Guerrero took any further action regarding an appeal of this judgment.

      . On May 25, 2010, the Clerk of Court mailed the Notice of Judgment of March 1, 2010, to the parties.

      . It appears this date is a typographical error, as the judgment was rendered in open court on May 25, 2010.

      . The trial court found that Mr. Guerrero received proper service of the Motion to Amend under the Long Arm Statute. Thus, he was apprised of the fact that Mrs. Guerrero sought not only an amendment to the phraseology of the 1996 Consent Judgment, but also the above described additional relief.

      . Although the court’s judgment of February 26, 2009 awarded the Mrs. Guerrero certain attorney's fees and court costs, it is clear from the record that these awards were not enforced, and were subsumed within the awards of attorney’s fees and court costs made on February 10, 2010. Despite the parties and the court calling the February 26, 2009 judgment a “default” judgment, an examination of the statutory scheme for the rendering of default judgments, LSA-C.C.P. art. 1701, et seq.,
        clearly shows that the trial court did not comply with those procedural requirements. There was no preliminary default judgment and no confirmation of default judgment proceeding. The substance of the February 10, 2010 trial could be compared to a confirmation of default proceeding, except that the defendant in "default,” Mr. Guerrero, appeared in court and participated fully in the trial.
      In its Judgment of February 10, 2010 (written judgment dated March 10, 2010), the trial judge declared the judgment of February 26, 2009 "executory,” though it probably meant “enforceable.” "Executory" is used in our statutes and jurisprudence (LSA-C.C.P. art. 2251, et seq.) to describe where a plaintiff seeks to execute a judgment within a jurisdiction other that where it was rendered.

      . Mr. Guerrero was held in contempt in the February 10, 2010 judgment for failure to respond to discovery. He has not argued on appeal that this contempt finding is error.