author: ROLAND L. BELSOME, Judge.

text:
    STATE of Louisiana v. Troy D. MUELLER.
    No. 2010-KA-0710.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 8, 2010.

      Leon A. Cannizzaro, Jr., District Attorney, Scott G. Vincent, Assistant District Attorney, New Orleans, LA, for State/Ap-pellee.
    Sherry Watters, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    Court composed of Judges EDWIN A. LOMBARD, ROLAND L. BELSOME and PAUL A. BONIN.
   ROLAND L. BELSOME, Judge.

| STATEMENT OF THE CASE:

Mr. Mueller was charged by bill of information with failure to register as a sex offender between October 8, 2008 and January 8, 2009, after prior convictions for indecent behavior on February 27, 1998 in Oklahoma and third degree sexual abuse on January 28, 2000 in Iowa, in violation of LSA-R.S. 15:542. Following a lunacy hearing, he was found competent to proceed.

Following a trial by jury on September 10, 2009, Mr. Mueller was found guilty as charged. On January 15, 2010, the defendant’s Motions for New Trial and Post Verdict Judgment of Acquittal were denied. In accordance with the pre-sentence investigation received by the district court on December 1, 2009, Mr. Mueller was sentenced to ten years at hard labor without benefit of probation, parole, or suspension of sentence. The fíne was waived. The defendant’s Motion to Reconsider Sentence was denied and this appeal followed.

STATEMENT OF THE FACTS:

Mr. Mueller registered as a sex offender with the New Orleans Police Department on September 18, 2007. The sex offender registration, as completed by the defendant, reflects his address as 3510 Loyola Street. Registrants are required to comply with various conditions as set forth by the sex offender law including the obligation to promptly notify the Police Department of any change of address within ten days of establishing a new residence. The defendant initialed each of the requirements the contract imposed, agreeing to comply with the state’s sex offender law. Detective Goins, the custodian of the sex offender records, identified the sex offender registration form that the defendant signed and dated |2with the listed address as 3510 Loyola Street. The detective also identified a lease/option to purchase agreement listing the defendant’s address as 3508 Loyola Street. Detective Raymond Hughes, who read and explained the requirements to the defendant, also signed the contract. Detective Goins stated that at no time did the defendant notify the Police Department of a change of address from 3510 Loyola Street.

Detective Aleda Wright of the New Orleans Police Department’s Sex Crimes Unit participated in a resident check of the defendant at 3510 Loyola Street, on March 31, 2008. Detective Wright observed that the residence’s doors were boarded up with wood and padlocked. After knocking on the door and receiving no answer, Detective Wright left a note requesting the resident contact her or the sex crimes unit. She returned to the premises on April 1 and 2, 2008, noticing the premises remained uninhabited with her note still on the door. Detective Wright spoke with neighbors who reported they had not seen the defendant in months.

On October 10, 2008, Detective Marrell Merricks conducted a sex offender residence compliance check at the defendant’s registered address of 3510 Loyola Street. The detective also noticed that the residence was unoccupied and appeared abandoned. He left a business card and a printed form acknowledging he had gone to the residence and requested the defendant to contact him. Detective Merricks returned to the residence on October 16, 2008 and found his business card where he had left it. Following his visit to the residence, the detective checked with Central Lock-up and the Department of Corrections and was advised the defendant was not incarcerated.

| ¡¡Officer Joseph Pollard, an expert in latent fingerprint analysis, took the defendant’s fingerprints in court prior to trial and compared the defendant’s fingerprints to fingerprints of both an individual in the state of Oklahoma and an individual in the state of Iowa. Officer Pollard testified that the fingerprints of the defendant matched both individuals convicted in Oklahoma and in Iowa.

ERRORS PATENT:

A review for errors patent reveals none.

ASSIGNMENTS OF ERROR:

On appeal the defendant raises three assignments of error: 1) he was not required to register as a sex offender; 2) the trial court did not have venue over the criminal proceedings against the defendant; and 3) the ten-year sentence imposed by the trial court on the defendant is excessive.

In his first assignment of error, the defendant asserts that he was not required to register as a sex offender pursuant to Louisiana’s sex offender registration statute, La. R.S. 15:542, because: 1) his prior offenses in Oklahoma and Iowa are |4not “sexual offenses” as defined by Louisiana’s sex offender statute for which a convicted offender must register because his Oklahoma and Iowa convictions are not equivalent to any Louisiana statutes that require registration; 2) the state failed to prove that his Iowa conviction involved a minor and therefore required him to register in Louisiana; and 3) the prosecution failed to establish that Oklahoma and Iowa require him to register as a sex offender.

1.

The bill of information in the instant case charged the defendant with failing to register as a sex offender, having been previously convicted of indecent exposure on or about February 27, 1998 in Custer County, Oklahoma and also of third degree sexual abuse on or about January 28, 2000 in Clinton County, Iowa.

Specifically, the defendant argues that Oklahoma’s indecent exposure statute is equivalent to Louisiana’s laws against obscenity or contributing to the delinquency of a juvenile, 14:106(A)(1) and 14:92(A)(7), respectively, and not to Louisiana’s indecent behavior with juveniles law. Consequently, the defendant [ Bargues that he was not required to register based on his Oklahoma conviction because Louisiana’s laws against obscenity or contributing to the delinquency of a minor do not require registration.

La. R.S. 15:541(24) provides in pertinent part:

“Sex offense” means ... conviction for the perpetration or attempted perpetration of or conspiracy to commit ... R.S. 14:81 (indecent behavior with juveniles) ... A conviction for any offense provided in this definition includes a conviction for the offense under the laws of another state, ... which is equivalent to an offense provided for in this Chapter ...

Louisiana’s obscenity law, 14:106(A)(1), is not one of the enumerated offenses requiring registration. However, contributing to the delinquency of a juvenile, 14:92(A)(7), is one of the enumerated offenses. La. R.S. 15:541(12)(a)(b) and (24). Even assuming, arguendo, that neither of these statutes is equivalent to the Oklahoma convictions, Louisiana’s indecent behavior with juveniles law is equivalent.

Black’s Law Dictionary, (8th ed.2004) defines equivalent as: “Equal in value, force, amount, effect, or significance. 2. Corresponding in effect or function; nearly equal; virtually identical.”

Oklahoma of 21 O.S. 1021(A)(1) provides in pertinent part:

Every person who willfully and knowingly either: 1. Lewdly exposes his person or genitals in any public place, or in any place where there are present other persons to be offended or annoyed thereby; ... shall be guilty, upon conviction, of a felony ...

La. R.S. 14:81 provides in pertinent part:

Indecent behavior with juveniles
IfiA- Indecent behavior with juveniles is the commission of any of the following acts with the intention of arousing or gratifying the sexual desires of either person:
(1) Any lewd or lascivious act upon the person or in the presence of any child ... Lack of knowledge of the child’s age shall not be a defense; ...

A clear reading of O.S. 21 1021(A)(1) requires that a defendant engage in lewd behavior in public where others are present and may be offended. Louisiana’s indecent behavior with juveniles requires an equivalent or similar element of engaging in a lewd act in the presence of any minor. It is reasonable to conclude that the language, “where others are present,” in the Oklahoma statute, includes minors. The victims in the Oklahoma cases were minors.

The defendant was convicted as a habitual offender in Iowa of a violation of Code of Iowa, Section 709.4(1), sexual abuse in the third degree, which provides in pertinent part:

A person commits sexual abuse in the third degree when the person performs a sex act under any of the following circumstances:
1. The act is done by force or against the will of the other person, whether or not the other person is the person’s spouse or is cohabitating with the person.

Louisiana’s aggravated rape statute, La. R.S. 14:42, provides that aggravated rape is a rape of a person where the anal, oral, or vaginal intercourse is deemed to be without lawful consent of the victim when the victim resists the act to the utmost, but whose resistance is overcome by force.

Louisiana’s forcible rape statute, La. R.S. 14:42.1, provides that forcible rape is a rape committed when the anal, oral, or vaginal sexual intercourse is deemed to be without the consent of the victim because it is committed when the victim is prevented from resisting the act by force.

17Thus, comparing the clear language of Code of Iowa 709.4(1) which contains the elements of a sex act perpetrated by force or against the will of the other person, with Louisiana’s aggravated rape and forcible rape statutes, it is clear that the Louisiana and Iowa statutes are corresponding in effect and function and are equal and virtually identical, and therefore, equivalent, which required the defendant to register as a sex offender pursuant to Louisiana’s sex offender registration statute, La. R.S. 15:542.

2.

The defendant argues that Louisiana’s sex offender registration statute applies only to sex offenses against minors. Accordingly, he asserts that because the state failed to prove that the Iowa conviction involved a minor, he was not required to register pursuant to that conviction.

In support of his claim, the defendant cites State v. Hanson, 44, 223, 44, 224 (La.App. 2 Cir. 5/13/09), 12 So.3d 1007. In Hanson, the appellate court vacated that portion of the defendant’s sentence that required him to register for life as a sex offender. The facts of this case are distinguishable from the instant case in that the defendant in Hanson was convicted of two counts of obscenity, La. R.S. 14:106, which is not one of the enumerated offenses that require registration. La. R.S. 15:541(12)(a)(b) and (24).

La. R.S.15:540(A), states the purpose of Louisiana’s sex offender registration statute in pertinent part as follows:

A. The legislature finds that sex offenders, sexually violent predators, and child predators often pose a high risk of engaging in sex offenses, and crimes against victims who are minors even after being released from incarceration or commitment and that protection of the public from sex offenders, sexually violent predators, and child predators is of paramount governmental interest ... Persons found to have committed a sex offense or a crime against a victim who is a 1 sminor have a reduced expectation of privacy ... Release of information about sex offenders, sexually violent predators, and child predators to public agencies, and under limited circumstances to the general public, will further the governmental interests of public safety and public scrutiny of the criminal and mental health systems so long as the information released is rationally related to the furtherance of those goals.
B. Therefore, this state’s policy is to assist local law enforcement agencies’ efforts to protect their communities by requiring sex offenders, sexually violent predators, and child predators to register with state and local law enforcement agencies ...

There is no jurisprudence directly addressing this issue. However, a clear reading of La. R.S. 15:540(A) reflects that the term sex offenders applies to all defendants convicted of one of the enumerated offenses which require registration regardless of the age of the victim. This interpretation is further supported by the jurisprudence addressing the necessity for notification to register. In State v. Myers, 2007-854 (La.App. 5 Cir. 4/29/08), 981 So.2d 214, the defendant was convicted of forcible rape where the •victim was an adult. The appellate court remanded the case because the trial court failed to provide mandatory written notification to the defendant that he |3was required to register as a sex offender pursuant to La. R.S. 15:541 and 543. Id. at 231-232. In State v. Berniard, 2003-484 (La.App. 5 Cir. 10/15/03), 860 So.2d 66, the defendant was convicted of aggravate rape of his ex-wife. The appellate court remanded the case because the trial court failed to provide mandatory written notification to the defendant that he was required to register as a sex offender pursuant to La. R.S. 15:541 and 543. Id. at 78.

Accordingly, there is no support for the defendant’s claim that Louisiana’s sex offender registration law applies only to sex offenses against minors.

3.

The defendant argues that he was not required to comply with Louisiana’s sex offender registration statute because the prosecution failed to establish that Oklahoma and Iowa required him to register as a sex offender in those jurisdictions. The state counters that the defendant has cited no provision of La. R.S. 15:542 or jurisprudence that supports such a claim and that implicit in his argument is the notion that an out-of-state sex offender is only under a duty to register in Louisiana if the law of the state(s) in which he was previously convicted also requires registration.

La. R.S. 15:542.1.3(A) provides in pertinent part:

Any person who is convicted or adjudicated of an offense under the laws of another state, or military, territorial, foreign, tribal, or federal law for which R.S. 15:542 requires registration shall be subject to and shall comply with all of the registration requirements of this Chapter within three business days of establishing a residence in Louisiana and shall comply with all notification requirements required in R.S. 15:542.1 within twenty-one days of establishing a residence in Louisiana. Such person shall also notify the bureau within three business days of establishing residence in Louisiana.

Accordingly, a clear reading of La. R.S. 15:542.1.3(A) does not require that sex offenders from other states are free from a duty to register in Louisiana if their sex offender convictions in those other states are not subject to registration in those states.

This assignment of error is without merit.

The defendant argues that the State failed to prove that the offense occurred in Orleans Parish because he was residing in Jefferson Parish at the time that the registry checks were conducted. Therefore, the trial court did not have jurisdiction of the case.

La. Const. Art. 1, § 16 guarantees the right to be tried in the parish where the offense occurred, unless venue is changed in accordance with law. The Louisiana legislature has codified this state constitutional guarantee in the Title XIX of the Louisiana Code of Criminal Procedure. La.C.Cr.P. art. 611(A) provides in pertinent part: “[a]ll trials shall take place in the parish where the offense has been committed.” La.C.Cr.P. art. 615 specifies the procedural device for invoking that right:

Improper venue shall be raised in advance of trial by motion to quash, and shall be tried by the judge alone. Venue shall not be considered an essential element to be proven by the state at trial, rather it shall be a jurisdictional matter to be proven by the state by a preponderance of the evidence and decided by the court in advance of trial.

See State v. Moss, 2008-1079, pp. 13-14 (La.App. 4 Cir. 7/22/09), 17 So.3d 441, 449-450, writ denied, 2009-1895 (La.4/9/10), 31 So.3d 382; State v. Pierre, 2004-0010, p. 3 (La.App. 4 Cir. 2/25/04), 869 So.2d 246, 248. Because the defendant failed to file a pre-trial motion to quash, his claim of improper venue is not reviewable.

The defendant asserts his maximum ten-year sentence is unconstitutionally excessive because the district court failed to articulate reasons for imposing the maximum sentence and only considered the defendant’s prior criminal history.

Article I, Section 20 of the Louisiana Constitution of 1974 prohibits the imposition of excessive punishment. La. Const. Art. I, 20; State v. Landry, 2003-1671, p. 8 (La.App. 4 Cir. 3/31/04), 871 So.2d 1235, 1239-1240. A sentence may Inviolate a defendant’s constitutional right against excessive punishment even if it is within the statutory limit. Id.; State v. Dorthey, 623 So.2d 1276, 1280 (La.1993). A sentence within the statutory limit is constitutionally excessive if it is grossly out of proportion to the severity of the crime or is nothing more than the purposeless imposition of pain and suffering. State v. Landry, 871 So.2d at 1239-1240, citing State v. Johnson, 97-1906 (La.3/4/98), 709 So.2d 672, 676.

Generally, a court of review must determine whether the trial judge adequately complied with the sentencing guidelines set forth in La.C.Cr.P. art. 894.1 and whether the sentence is warranted in light of the particular circumstances of the case. State v. Black, 98-0457, p. 8 (La. App. 4 Cir. 3/22/00), 757 So.2d 887, 892. If adequate compliance with article 894.1 is found, the reviewing court must consider whether the sentence imposed is too severe in light of the particular defendant and the circumstances of his case. State v. Caston, 477 So.2d 868, 871 (La.App. 4 Cir. 1985). The reviewing court must also be mindful that maximum sentences should be reserved for the most egregious violators of the offense charged. State v. Quebedeaux, 424 So.2d 1009, 1014 (La.1982). However, while the articulation of the factual basis for a sentence is the goal of article 894.1, it does not require a rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, resentencing is unnecessary even when there has not been full compliance with article 894.1. State v. Landos, 419 So.2d 475, 478 (La.1982). The reviewing court shall not set aside a sentence for excessiveness if the record supports the sentence imposed. La. C.Cr.P. art. 881.4(D). State v. Major, 96-1214, p. 10 (La.App. 4 Cir. 3/4/98), 708 So.2d 813, 819. The trial court has great discretion in sentencing within the statutory limits. State v. Trahan, 425 So.2d 1222 (La.1983).

I i?.La- R.S. 15:542.1.4(A)(1) provides in pertinent part;

A person who fails to register, periodically renew and update registration, provide proof of residence or notification of change of address or other registration information, or provide community notification as required by the provisions of this Chapter, and a person who knowingly provides false information to a law enforcement agency as provided in R.S. 15:542(0(3), shall, upon first conviction, be fined not more than one thousand dollars and imprisoned with hard labor for not less than two years nor more than ten years without benefit of parole, probation or suspension of sentence.

Prior to sentencing the defendant, the district court reviewed the pre-sentence report and articulated the following reasons for imposing the maximum sentence:

THE COURT:

PSI ordered and returned by the State of Louisiana, Division of Probation and Parole Department of Public Safety and Corrections, outlines a criminal history that dates back to 1994 with the first conviction being in 1994 in Clinton, Iowa for forgery and second offense theft with a sentence of five years.
In 1996 a conviction out of Clinton, Iowa for Robbery Two, assault with intent, 120 days in jail.
January 8th, 1998, an arrest in Custer County, Arapaho, Oklahoma for sex offense against a child, two counts indecent exposure.
Pled guilty on February 27, 1998, to two years department of corrections, suspended, two years probation with a rule to show cause still being open in that case according to this presentence investigation report.
April 30th, 1998, an arrest in Houma for simple burglary and theft. 1998 pled guilty, two years.
July 14th, 1999, Clinton, Iowa, sex abuse second.
January 27th, 2000, pled guilty to that charge, received a sentence of fifteen years Department of Corrections.
And then this instant offense. It should be noted that the narrative of the pre-sentence investigation reports notes that on January 8th, 1998, for the Oklahoma conviction when the defendant was given probation in that state, he violated several conditions of his probation including | ^leaving the state without permission and not reporting to the probation office. And that’s why that probation is still considered active with a warrant being issued for Mr. Mueller’s arrest back in
1998.
With the Houma Police Department here in Louisiana and the burglary charge, to which he pled guilty and received two years, Department of Corrections’ time. He was released on good time parole supervision on April 28th,
1999.
Mr. Mueller absconded supervision and was arrested on July 14th, 1999, in Iowa. He was extradited back to Louisiana and his parole was revoked due to the new felony conviction of second-sex abuse, second offense, under the criminal statute in Iowa.
The Department of Corrections classifies Mr. Mueller as a fifth felony offender who has been convicted in three different states. He has two prior sex offense convictions and is currently in violation of the probation from one of those convictions.
Both of those convictions involve children. One incident was with a known victim, his niece [sic], and her friend. An [sic] the other incident occurred when he exposed himself to two children in different department stores.
These convictions are the reason Mr. Mueller is required to register as a sex offender. And, therefore, in the PSI the Department of Corrections recommends a lengthy sentence based on the offender’s prior convictions, his prior performance on probation and parole and his offender class.
The Court takes into account the sentencing guidelines as articulated in Article 894 of the Code of Criminal procedure, 894.1, which sets up those guidelines and parameters for the Court to use in determining what the appropriate sentence in any case is.
The Court finds that in light of this case, because the defendant has two prior sexual convictions, both involving children, that the rate that Mr. Mueller would recidivate is extremely high.
The Court finds that he is in need of a custodian environment, which can best be provided for by his remand to an institution.
The Court takes in to [sic] account any mitigating circumstances in that this case does not involve a victim per se. Society is the victim when sex offenders do not register and comply with those terms that society requires of them.
| uAnd, therefore, the Court feels that the maximum sentence to be imposed at law is the appropriate one in this case

Given the facts of the defendant’s prior criminal history, which includes multiple prior felony convictions including two sex crimes, the defendant’s defiance in complying with conditions of his probation and his general recidivist history, the defendant’s ten-year sentence is supported by the record.

Accordingly, the defendant’s conviction and sentence is affirmed.

AFFIRMED.

      . La. R.S. 15:542 provides in pertinent part: Registration of sex offenders and child predators
      A. The following persons shall be required to register and provide notification as a sex offender or child predator in accordance with the provisions of this Chapter:
      (1)Any adult residing in this state who has pled guilty to, has been convicted of, or where adjudication has been deferred or withheld for the perpetration or attempted perpetration of, or any conspiracy to commit either of the following:
      (a) A sex offense as defined in R.S. 15:541, with the exception of those convicted of felony carnal knowledge of a juvenile as provided in Subsection F of this Section;
      (b) A criminal offense against a victim who is a minor as defined in R.S. 15:541;
      (2) Any juvenile who has pled guilty or has been convicted of a sex offense or second degree kidnapping as provided for in Children's Code Article 305 or 857, with the exception of simple rape; and
      (3) Any juvenile, who has attained the age of fourteen years at the time of commission of the offense, who has been adjudicated delinquent based upon the perpetration, attempted perpetration, or conspiracy to commit any of the following offenses:
      (a) Aggravated rape (R.S. 14:42).
      (b) Forcible rape (R.S. 14:42.1).
      (c) Second degree sexual battery (R.S. 14:43.2).
      (d) Aggravated kidnapping of a child who has not attained the age of thirteen years (R.S. 14:44).

        (e) Second degree kidnapping of a child who has not attained the age of thirteen years (R.S. 14:44.1).
      (f) Aggravated incest involving circumstances defined as an "aggravated offense” (R.S. 14:78.1).
      (g) Aggravated crime against nature (R.S. 14:89.1).

      . In Oklahoma case number CF 98-6, defendant pleaded guilty on February 27, 1998 of to two counts of indecent exposure with two minors (his niece and her friend) in violation of 21 O.S. 1021(A)(1). Defendant was sentenced to serve two years at hard labor, suspended. Defendant was placed on active probation with conditions. His probation was revoked on May 14, 1998.
      In Oklahoma case number CF 98-15, defendant pleaded guilty on February 27, 1998 of to indecent exposure (defendant exposed himself in department stores to two minors) in violation of 21 O.S. 1021(A)(1). Defendant was sentenced to serve two years at hard labor, suspended. Defendant was placed on active probation with conditions. His probation was revoked on May 14, 1998.

      . In Iowa case number 07231, defendant pleaded guilty on December 20, 1999 as a habitual offender to sexual abuse in the third degree in violation of Iowa Code 709.4. Defendant was sentenced to serve fifteen years at hard labor.

      . The jurisprudence cited applies to La. R.S. 15:541 and 542 prior to the 2007 amendments. However, the requirement of notification remained the same after the 2007 amendments. Prior to the 2007 amendments the notification requirement of La. R.S. 15:543 provided in pertinent part: "A. The court shall provide written notification to any defendant charged with a sex offense of the registration requirements of R.S. 15:542 ...”
      The amended notification requirement of La. R.S. 15:543 provides in pertinent part: "A. The court shall provide written notification to any person convicted of a sex offense and a criminal offense against a victim who is a minor of the registration requirements and the notification requirements of this Chapter ...” See also, 5 Att’y Gen. Op. 0252 (2005), which states that all sex offenders have a duty to register pursuant to La. R.S. 15:542.


source: Caselaw Access Project

author: MARC E. JOHNSON, Judge.

license: Public Domain

text:
    Daniel Guadalupe MORENO v. LANDAVERDE CONSTRUCTION LLC, et al.
    No. 10-CA-471.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 14, 2010.
    Rehearing Denied Feb. 7, 2011.
    P. Jeremy Lafleur, Attorney at Law, Metairie, LA, for Plaintiff/Appellant.
    Simeon B. Reimonenq, Katherine L. Osborne, Attorneys at Law, New Orleans, LA, for Defendant/Appellee.
    Panel composed of Judges WALTER J. ROTHSCHILD, JUDE G. GRAVOIS, and MARC E. JOHNSON.
   MARC E. JOHNSON, Judge.

li>The basis of this appeal arises from the denial of a Motion to Enforce Judgment against Appellant/Plaintiff, Daniel Guadalupe Moreno, and in favor of Appellee/De-fendant, Travelers Indemnity Company (“Travelers”), from the Officer of Workers’ Compensation, District “7”. For the following reasons, we affirm.

According to the pleadings, Appellant was an employee of Landaverde Construction, L.L.C. (“Landaverde”), which was based in New Hampshire. Travelers issued a workers’ compensation insurance policy to Landaverde in the State of New Hampshire only. Following Hurricane Katrina, Landaverde, including Appellant, temporarily moved to the New Orleans area to work as a subcontractor for Stewart Interior Contractors, L.L.C. (“Stewart”).

On January 5, 2006, Appellant was injured in an accident while working at a Walgreens store in Metairie, Louisiana. Travelers denied Appellant’s workers’ compensation claim. Thereafter, Appellant filed his workers’ compensation claim |swith the Office of Workers’ Compensation in Louisiana.

During a conference with the trial court on November 12, 2008, and with the consent of counsel for Appellant, Travelers and Stewart each agreed to pay 50% of Appellant’s claim for weekly indemnity until such time a final judgment would be rendered. This Consent Judgment was signed by the trial court on December 5, 2008.

After a trial on the merits, the trial court rendered a judgment on April 13, 2009, in favor of Appellant, which awarded, among other things, payments for weekly indemnity benefits. On April 24, 2009, Travelers filed a Motion to Clarify the Judgment. After a conference with the trial court on May 21, 2009, the parties entered into a Consent Judgment on June 12, 2009. The Consent Judgment resolved issues raised in the Motion to Clarify. The Consent Judgment was signed by the trial court on the same date.

On June 26, 2009, Appellant filed a Motion to Enforce Judgment for unsatisfied portions of the judgment rendered by the trial court on April 13, 2009. A hearing on the motion was held on August 6, 2009, and the matter was taken under advisement. The Motion to Enforce Judgment was denied on October 8, 2009. Appellant filed a Motion for New Trial on October 20, 2009, which was denied on January 11, 2010. The instant appeal followed.

On appeal, Appellant alleges the trial court committed manifest error in finding that its judgment of April 13, 2009, had been fully and timely satisfied in accordance with LSA-R.S. 23:1201(G), and thus, denying Appellant’s Motion to Enforce Judgment.

Appellant argues Travelers did not fully comply with the trial court’s April 13, 2009, judgment on the merits of the case within thirty days of it becoming a final, nonap-pealable judgment. No request for a rehearing was timely filed, all |4appellate delays had run, no proper appeal of the judgment was lodged, and no writ applications were filed. As such, Appellant contends he did not receive the balance of the unpaid indemnity benefits ($29,283.00) awarded pursuant to the judgment on the merits until July 10, 2009, which was eighty-eight (88) days after the trial court’s judgment on the merits became a final, nonappealable judgment. Because the unpaid indemnity benefits were not paid until July 10, 2009, Appellant avers the trial court erred in not granting his Motion to Enforce Judgment, and he is entitled to the assessment of penalties under LSA-R.S. 23.T20KG).

Under the manifest error/clearly wrong standard, the appellate court may not merely decide if it would have found the facts of the case differently. Alfortish v. Roughneck Construction, LLC, 09-870, p. 4-5 (La.App. 5 Cir. 5/11/10); 40 So.3d 1004, 1007. However, when legal error interdicts the fact-finding process in a workers’ compensation proceeding, the de novo standard of review applies, rather than the manifest error standard. Id. The interpretation of statutes pertaining to workers’ compensation is a question of law and warrants a de novo review to determine if the ruling was legally correct. Id.

LSA-R.S. 23:1201(G) provides,
If any award payable under the terms of a final, nonappealable judgment is not paid within thirty days after it becomes due, there shall be added to such award an amount equal to twenty-four percent thereof or one hundred dollars per day together with reasonable attorney fees, for each calendar day after thirty days it remains unpaid, whichever is greater, which shall be paid at the same time as, and in addition to, such award, unless such nonpayment results from conditions over which the employer had no control. No amount paid as a penalty under this Subsection shall be included in any formula utilized to establish premium rates for workers’ compensation insurance. The total one hundred dollar per calendar day penalty provided for in this Subsection shall not exceed three thousand dollars in the aggregate. (Emphasis added).

Because the issue at hand involves the interpretation of when the unpaid indemnity payments from Travelers became due, we will conduct a de novo |sreview.

The judgment by the trial court awarding indemnity payments was rendered on April 13, 2009. On June 12, 2009, the April 18, 2009, judgment became a final, nonappealable judgment because sixty (60) days had lapsed since the judgment was rendered without any interruptions or suspensions. Travelers had thirty (30) days from June 12, 2009, to submit any unpaid indemnity benefits to Appellant without any penalties being assessed pursuant to LSA-R.S. 23:1201(G). Travelers tendered a lump sum payment of the remaining unpaid indemnity benefits to Appellant on July 10, 2009, which was within the thirty-day time delay. Accordingly, we find Travelers complied with the trial court’s judgment and is not legally sanctionable under LSA-R.S. 23:1201(G).

DECREE

After de novo review, we find the trial court was correct in denying Appellant’s Motion to Enforce Judgment. Appellant is to bear the costs of this appeal.

AFFIRMED.

      . In Silk v. Silk, 2,864, p. 5 (La.App. 2 Cir. 9/24/97), 699 So.2d 1175, 1178, the Louisiana Second Circuit held, “[o]n the face of § 1201(G), however, the term nonappealable is not ambiguous, nor is it qualified by reference to which party has or has not sought what type of appeal. In the present context, it is reasonable to construe the term nonap-pealable to. mean either that the judgment has not been timely appealed by any party, or that an appeal, either suspensive or devolutive, has been taken and the rights of the parties have been conclusively determined by the reviewing court or courts.”


author: WILLIAMS, J. PER CURIAM. CARAWAY, J.,

text:
    Melanie CHRISTY, Individually and On Behalf of Her Minor Son, Justin Christy, Plaintiffs-Appellees v. Dr. Sandra McCALLA and the Caddo Parish School Board, Defendants-Appellants.
    No. 45754-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 15, 2010.
    Per Curiam Amending Opinion Jan. 19, 2011.
    Opinion Dissenting from Denial of Rehearing Jan. 20, 2011.

      Robert Kennedy, Jr., Elizabeth M. Car-mody, Shreveport, Louisiana, for Appellant, Caddo Parish School Board.
    John L. Hammons, Annis C. Flournoy, Shreveport, Louisiana, for Appellees.
    Before WILLIAMS, MOORE and LOLLEY, JJ.
   WILLIAMS, J.

11 Plaintiff, Melanie Christy, sued the Caddo Parish School Board (“CPSB”) and Dr. Sandra MeCalla, the principal of Captain Shreve High School, for personal injuries arising out of an incident involving plaintiffs son, Justin Christy. Following a bench trial, the trial court found the CPSB hable and awarded $50,000 in damages. For the following reasons, we affirm.

FACTS

On October 6, 2003, Justin Christy (“Justin”) was a 17-year-old senior at Captain Shreve High School (“Captain Shreve”). During his first-period class, Justin opened his backpack and a bottle of “Kentucky Deluxe” whiskey rolled onto the floor and broke. Justin was sent to the office, where he was questioned by Marvin Hite, the assistant principal of administration and discipline. Justin informed Hite that he did not know that the alcohol was in his backpack and did not know how it had gotten there. Hite’s attempts to contact Justin’s parents were unsuccessful. Hite summoned Corporal Gregory Jackson, an officer with the Shreveport Police Department, who was assigned to the school as a resource officer. After questioning Justin, Cpl. Jackson placed him under arrest and transported him to the police station. Cpl. Jackson charged Justin with a violation of a city ordinance by being a “minor in possession of alcohol.” He gave Justin a summons to appear in city court, transported him back to the school and instructed him to go home and “get in touch with [his] parents.”

| ^Approximately one hour after Justin was sent to the office, Andrew Heacock, the president of the student council at Captain Shreve, learned about the incident. Heacock voluntarily approached Hite and admitted that he had placed the bottle of whiskey in Justin’s backpack. Heacock also stated that Justin was unaware that the bottle was in his backpack. Hite instituted disciplinary action against Justin. No disciplinary action was instituted against Heacock.

Justin was initially suspended from school for three days. Thereafter, Dr. MeCalla recommended that Justin be expelled from Captain Shreve. At some time during the investigation, Hite notified Dr. MeCalla that Heacock had informed him that he (Heacock) had placed the bottle of whiskey on the seat of Justin’s truck, rather than inside the backpack. However, Heacock emphatically testified that he never told Hite that he had placed the bottle on the seat of the truck. Heacock also testified that Dr. MeCalla called him into her office prior to the expulsion hearing and questioned him. He stated that he reiterated to Dr. MeCalla that he had placed the bottle of whiskey inside Justin’s backpack.

An expulsion hearing was scheduled. Prior to the hearing, Heacock approached Hite and informed him that he wanted to testify at the hearing on Justin’s behalf. Hite told Heacock that his testimony would not be needed. Therefore, at Justin’s request, Heacock prepared a written statement, which reads as follows:

To whom it may concern:

On the morning of Sunday, October 5, I discovered a bottle of whiskey i[n] the back of my car. Not knowing [ 3whose it was or how it had gotten there, I took it out of my car and put it in Justin Christy’s backpack, which was on the front seat of his truck. I believed that he would throw it away in the dumpster by his house. Justin spent the night with me the night of Saturday, October 4 and was still at my house asleep when I put the alcohol in his backpack. I had intended to tell him that the whiskey was in his bag before he left my house, but I went back to sleep and he left without waking me up. I didn’t call Justin and tell him that I had put the whiskey in his bag that day because I believed that he would have discovered it by then. I never told Justin that I had put the alcohol in his backpack until noon on Monday, October 6 after he had been suspended.

The statement was signed by Heacock and his father.

The expulsion hearing was held on October 10, 2003 in Hite’s office at Captain Shreve. Larry Anderson, the supervisor of child welfare and attendance for the CPSB, was in charge of the hearing. Plaintiffs requested that Heacock be allowed to testify, but the school officials denied the request, stating that they “already had a statement” from Heacock. Justin testified that after Hite presented the school’s version of the incident, he was allowed to give his “side of the story.” Justin further stated, “There was no really [sic] discussion. [Anderson] just decided-it was already decided before I came in there.” At the conclusion of the hearing, Anderson upheld Dr. McCalla’s recommendation that Justin be expelled from Captain Shreve. Anderson determined that Justin would be placed at Hamilton Terrace Learning Center, an alternative school, for a period of five months, from October 13, 2003 through March 12, 2004. Following the hearing, Justin was instructed to clear his belongings from his locker and was escorted out 14of the school.

Justin and his parents appealed Anderson’s decision to the preliminary appeals committee of the CPSB. Like Anderson, the committee allowed Hite to present the school’s version of the facts, then allowed Justin to present his version. The committee upheld the expulsion, but modified the term of the expulsion from five months to two months. On November 12, 2003, Ollie Tyler, the CPSB’s superintendent, issued a memorandum ratifying the committee’s recommendation that Justin’s expulsion to the alternative school be modified from March 12, 2004, to December 19, 2003. Tyler also recommended that Justin be “permitted to enroll at Southwood High School on January 6, 2004 to complete the two Carnegie units needed for graduation.”

Justin’s mother, the initial plaintiff herein, appealed the committee’s decision to the CPSB, which upheld the recommendation of the superintendent. Plaintiff did not appeal the CPSB’s decision to the district court.

IfiOn February 10, 2004, Justin’s mother, Melanie Christy, filed a lawsuit, individually and on behalf of Justin, alleging that the CPSB violated Justin’s right to due process and imposed an “excessive and irrational punishment.” Plaintiff also alleged that the actions of the CPSB and its employees “were unreasonable, illogical, unjustifiable in light of the evidence, arbitrary, capricious, without just or lawful cause, and malicious.” Plaintiff further alleged that the CPSB’s actions caused “extreme mental anguish and distress, grief, humiliation and inconvenience!.]”

On March 15, 2004, defendants filed a peremptory exception of no cause of action. Defendants unsuccessfully argued that plaintiffs claims were unsupportable because Dr. McCalla and the CPSB acted “in accordance with statutory law,” which allows the expulsion of a student who possesses alcohol on school grounds.

Following a bench trial, the trial court ruled in favor of plaintiff and awarded damages in the amount of $50,000. Specifically, the court found that Hite failed to provide the hearing officer and the preliminary appeals committee with the full truth and that his actions were “intentional.” The court also found that Anderson’s actions were “grossly negligent.” The CPSB appeals.

IfiDISCUSSION

The CPSB contends the trial court erred in finding it liable to plaintiff. The CPSB argues that the actions of its employees were appropriate and permissible under LSA-R.S. 17:416(A) and (B).

A school principal may suspend from school any pupil who possesses alcoholic beverages, in any form, in school buildings, on school grounds, or on school buses owned by, contracted to, or jointly owned by any city or parish school board. LSA-R.S. 17:416(A)(3)(a)(vi). LSA-R.S. 17:416(B)(l)(a) provides:

Any student after being suspended for committing any of the offenses enumerated in this Section may be expelled, upon recommendation by the principal of the public school in which said student is enrolled, which recommended expulsion shall be subject to the provisions of Subsection C.[]

Plaintiff does not dispute that the CPSB had the discretion to suspend or expel Justin for possession of alcohol on a school campus. However, plaintiff argues that the CPSB officials refused to exercise any discretion in |7their treatment of Justin. Plaintiff additionally argues that the school board violated Justin’s right to due process when Hite concealed and/or mischaracter-ized the evidence during this entire process. According to plaintiff, the trial court was correct in concluding that Hite’s actions were intentional and Anderson’s actions were grossly negligent.

In a civil lawsuit, the burden is on the plaintiff to prove the negligence of the defendant by a preponderance of the evidence. Miller v. Leonard, 588 So.2d 79 (La.1991); Stone v. Bullard, 43,996 (La.1/28/09), 2 So.3d 1241; Hughes v. Scottsdale Ins. Co., 35,043 (La.App.2d Cir.8/22/01), 793 So.2d 537. Under Louisiana jurisprudence, most negligence cases are resolved by employing a duty/risk analysis, which entails five separate elements: (1) whether the defendant had a duty to conform his conduct to a specific standard (the duty element); (2) whether the defendant’s conduct failed to conform to the appropriate standard (the breach element); (3) whether the defendant’s substandard conduct was a cause-in-fact of the plaintiffs injuries (the cause-in-fact element); (4) whether the defendant’s substandard conduct was a legal cause of the plaintiffs injuries (the scope of liability or scope of protection element); and (5) whether the plaintiff was damaged (the damages element). Hanks v. Entergy Corp., 2006-477 (La.12/18/06), 944 So.2d 564; Lemann v. Essen Lane Daiquiris, Inc., 2005-1095 (La.3/10/06), 923 So.2d 627; Stone v. Bullard, supra.

It is well settled that a court of appeal may not set aside a trial court’s finding of fact in the absence of “manifest error” or unless such finding is | ¡/‘clearly wrong.” Where there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed on review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Stobart v. State, Dept. Of Transp. & Dev., 617 So.2d 880 (La.1993); Crownover v. City of Shreveport, 43, 521 (La.App.2d Cir. 9/17/08), 996 So.2d 315. If the trial court’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Neloms v. Empire Fire & Marine Ins. Co., 37,786 (La.App.2d Cir.10/16/03), 859 So.2d 225. In fact, where two permissible views of evidence exist, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. Stobart, supra.

In the instant case, Dr. Miles Hitchcock, a former member of the CPSB, was accepted by the court as an expert in “policies, procedures and [the] working of Cad-do Parish School Board and the Caddo Parish School System.” Dr. Hitchcock testified that the CPSB had a duty to ensure that the board’s policies were applied correctly. Dr. Hitchcock also testified that the CPSB was required to perform its duty in a manner which promotes “safety, well-being and the best interests of the students.” He also stated that the framework of the CPSB policy contemplates a “full and complete investigation” by each body during the process (ie., the school, the expulsion hearing officer, the preliminary appeals committee and the CPSB). Dr. Hitchcock stated:

| ¡¡The policy was written with the belief that it was — that expulsion was a last remedy of a student that presented danger to the other students in the school or the orderly conduct of the school and would inhibit the educational processes in schoolf.]
[Pjolicies were written to protect the students and to try to minimize the damage to a student particularly if that student [was] innocent.

Dr. Hitchcock further testified that the expulsion hearing process, as well as the preliminary appeals process, was designed to be “nonadversarial.” He unequivocally opined that the CPSB breached its duty to conduct a “full and complete investigation” at each level of the process in this matter. Dr. Hitchcock also opined that the investigation should have ended when Andrew Heacock came forward and admitted that he had placed the bottle of whiskey in Justin’s backpack without Justin’s knowledge.

Furthermore, Dr. Hitchcock testified that Justin did not get a fair hearing “at any level” in this case. He stated that Hite failed to conduct a thorough investigation into the incident. Dr. Hitchcock also noted that Heacock had informed Hite that he wanted to testify at the hearing, but Hite failed to call him to testify. Dr. Hitchcock stated that Justin and his parents did not understand that they had the right to call witnesses and, unfortunately, relied upon their belief that the school would call Heacock to testify on Justin’s behalf.

Dr. Hitchcock also testified with regard to the discretion of school officials and the CPSB in similar incidents. Specifically, he described an 110incident that took place when he was a member of the CPSB. He stated that a student came to school with a shotgun in his truck. A resource officer saw the weapon in the truck while patrolling the parking lot. An investigation revealed that the student had gone hunting over the weekend and had left the weapon in the truck. The student was expelled from school. However, following a hearing, the CPSB overturned the student’s expulsion, finding that the student did not intend to possess the weapon on campus and had forgotten the weapon was there. Dr. Hitchcock stated that the board evaluated the “totality of the circumstances” and focused on “intent and danger to other students.” He stated, “It was not the intention of the policy for a student to be punished as severely in that particular circumstance and they overturned it.” Dr. Hitchcock testified that the CPSB had the same discretion in the instant ease, but refused to exercise it.

During cross-examination, Dr. Hitchcock testified:

It’s my opinion that at every step of the process that the school board had an obligation to get to the facts. And that there was indeed a tip of the iceberg. You have a student leader in the school telling you this is not how it happened, you’re punishing the wrong person, and I can’t find anywhere where the administration of that school, the hearing officer, or anybody did anything to get facts to either support that or to contradict. The evidence as I see it supports the fact that it was disregarded at best.

Andrew Heacock also testified at the trial. He stated that he learned that Justin “had been caught with alcohol” approximately one hour after the incident. Heacock testified that as soon as his class ended, he “went straight down to the assistant principal’s office to tell him, you know, kind of my side of the story[.]” He also stated that he went to Hite’s office voluntarily 1 nand that he did so because he “felt like I knew that I had put the alcohol in Justin’s backpack and I felt responsible for him being in trouble.” Heac-ock testified that he told both Hite and Cpl. Jackson that he had placed the bottle of whiskey in Justin’s backpack. Heacock unequivocally testified that he never told Hite or anyone else that he had placed the bottle of whiskey on the seat of Justin’s truck. He also testified that he told Dr. McCalla the same story — that he had placed the bottle in Justin’s backpack without Justin’s knowledge. Heacock stated that he testified at the hearing before the CPSB at Justin’s request, but he felt that the superintendent and the board already “had a pretty good idea of kind of which way it was going to go.”

Larry Anderson also testified during the trial. Anderson stated that the hearing process includes giving the school the opportunity to present its case, allowing the student to “tell his side of the story” and giving the student’s parents an opportunity to state their position. He stated that at the conclusion of a hearing, he asks the school for a recommendation before he makes a recommendation on behalf of the superintendent’s office. Anderson testified that the CPSB policy provides that a student who possesses alcohol on campus may either be suspended or expelled. He stated that Hite was supposed to have conducted an investigation prior to levying a suspension and the school should have “look[ed] at the circumstances surrounding the possession of alcohol on campus.” Anderson also testified, “[I]f a student is found to be in possession of the alcoholic beverages on the school campus and the hearing is called[,] I will h ¿remove a student from school. I will expel that student from school.” That comment led to the following colloquy between the trial court and Anderson:

Q: Although you don’t have to remove him, you could simply suspend him?
A: No, sir, that’s not our policy.
Q: Well, you just told me that you could either suspend them or you could expel them and so it appears to me that you have some discretion?
A: No, sir.
Q: [A]re you of the opinion that every time that you have an alcohol case that you are going to expel that child?
A: I’m going to remove them, yes, sir. Q: Regardless of the circumstances?
A: If they prove he had it, yes, sir, I’m going to remove that child.
Q: All right. There’s no way you can think of that you’re not going to expel that child?
A: No, sir. No way that I can think of. Q: All right. Are you required to do that under the policy?
A: Yes, sir.
Q: It doesn’t say anything in here about you have to expel the child. It says, you’re going to have a hearing and hopefully exercise some discretion and hopefully make an intelligent decision. Maybe I’m reading a lot into it. But I’m asking you to point out where it says after a student is suspended ... you have to expel them.
A: I can’t do that, Your Honor[.] All I can share with you reasonably, Your Honor, is that for any part of the disciplinary policy that a student has been suspended that | iSstudent may, at some point in time, be exposed to having to attend an expulsion hearing. And at the hearing the infraction that was violated may lend itself to an expulsion not only for alcohol but for maybe some other violation as well.
Q: And see, that’s what I’m getting at. It may lend itself to an expulsion but “may” indicates it may not. And I’m just trying to say, how do you decide if this is a “may” case or a “may not” case? That’s all I’m asking.
A: Your Honor, I’m at a loss for words.

When asked why he did not obtain a statement from Heacock during the hearing, Anderson stated that he did not believe that Heacock’s statement would have been beneficial and stated, “[I] still would have done what I did, Your Honor, based on the fact that Justin was in possession of alcohol on the premises.” Anderson testified that it did not matter whether Justin knew that the bottle of whiskey was in his backpack; once the school established that the bottle fell from Justin’s backpack, it did not matter where the bottle came from or what explanation Justin provided.

On cross-examination, Anderson admitted that he did not conduct an independent investigation and that his decision to uphold the expulsion was based solely upon information provided to him by Hite. Rather than obtaining a statement from Heac-ock, he relied upon Hite’s assertion that Heacock had stated that he had placed the bottle of whiskey on the seat of Justin’s truck. Anderson testified:

What the school present[ed] to me was what I based mine on and that was that [Heacock] initially said to Mr. Hite that he put the bottle on the seat. He did not say that he put the bottle in the bag. My understanding from the school’s presentation was that after — at a later period in time [Heacock] and Justin spoke and after that | ^conversation [Heacock’s] statement changed to say he put it in the bag.

Anderson testified that he did not obtain a statement from Heacock “because I thought all the information I had was sufficient[.]” He admitted that a statement from Heacock “may have” resulted in a different decision. Anderson also admitted that he would have allowed Heacock to testify at the hearing had he known that Hite had provided misleading information.

Marvin Hite also testified at the trial. Hite testified that he obtained written statements from the students who saw the bottle fall out of Justin’s backpack, but he did not obtain a written statement from Heacock. Hite further testified that Heac-ock asked to testify at the expulsion hearing, but he did not allow him to do so because “we don’t normally get students out of class” and that “likely we wouldn’t need him.” On cross-examination, Hite admitted that he withheld information from Anderson and the preliminary appeals committee. He testified as follows:

Q: So the bottom line is that Justin Christy never got a fair hearing in front of you, in front of Mr. Anderson, in front of Mrs. Atkins, or in front of the school board? Isn’t that true?
A: I would say not in my office and I cannot speak for the others.
Q: You were there. You gave the school’s side of things and you didn’t tell the whole story, did you?
A: They didn’t request him to come to the school board hearing.
Q: You didn’t tell the whole story before Mr. Anderson’s hearing or at Ms. Atkins’ hearing did you?
A: I told what I knew of the story.
11SQ: So you conveniently told Mr. Anderson was that the one witness that knew where the alcohol came from told you that he put it on the seat of the truck but you withheld from Mr. Anderson that he told you that he put it in the backpack, right?
A: Yes, sir.
Q: Do you think that’s fair to a child?
A: No, sir.
Q: This was an inappropriate and an unjust presentation of only a part of the evidence that you had and you knew about at the time of this expulsion hearing, right?
A: Yes, sir.
Q: Now, you got a chance to rectify this because there was another hearing, one before Mrs. Atkins, right, that you testified in again, right?
A: Yes, sir.
Q: So are you tell[ing] us — are you admitting that you didn’t even tell the committee about Andrew Heacock coming to see you not once but twice according to your testimony today?
A: It wasn’t recorded in the school’s response statement but it was mentioned at that hearing.
Q: [W]hy did you tell them part of the truth and not the whole story?
A: I didn’t have a specific reason for doing so. I mean because going through a hearing process and I made some mistakes in it I guess. I mean, I didn’t have a vendetta against Justin, sir. I didn’t even know Justin, you know, so I didn’t have a personal vendetta against him or anything along those lines. I made a mistake in some of the proceedings.
Court: [Yjou’ve got the president of the student council, who is also president of the Key Club, who comes to you and tells you that he’s the one that put the bottle in the backpack and you don’t think that’s important enough to tell Mr. Anderson or to tell Mrs. Atkins and the rest of |ifithese folks that are judging whether this young man is going to be kicked out of school — expelled from school?
A: At the time I didn’t think it was important enough.

Diane Watkins Atkins, the director of the CPSB’s attendance and census department, testified that she served as the chairperson of the preliminary appeals committee that heard Justin’s case. Atkins testified that the purpose of the appeals committee is to conduct “a re-examination” of the expulsion hearing “to see if any steps were missed[.]” At the conclusion of the preliminary appeals process, the committee may either uphold the student’s expulsion, modify it or rescind it. Atkins testified that Hite reported to the committee that Heacock had testified that he placed the bottle of alcohol on the seat of Justin’s truck. Hite never told them about Heacock’s statement that he had placed the bottle in the backpack without Justin’s knowledge. Atkins was clearly troubled by Hite’s misrepresentations to the hearing officer and to the appeals committee. She stated, “We trusted Mr. Hite to give us the report because he was the assistant principal of discipline who authorized [the] arrest based on Justin being in possession of alcohol. That’s how it works.” Atkins testified that according to the CPSB’s policy, a student is “guilty” of possession of contraband, even if someone else placed the contraband in their possession without their knowledge. However, she stated that the CPSB would “absolutely not” punish a student if an investigation revealed that someone else placed the contraband in the student’s possession without his or her knowledge. Atkins unequivocally testified that the CPSB and school | ^officials violated Justin’s right by: (1) Hite’s failure to inform Anderson of Heac-ock’s statement that he (Heacock) had placed the bottle of whiskey in Justin’s backpack without Justin’s knowledge; (2) Hite’s failure to inform the preliminary appeals committee about Heaeock’s statement; (3) Hite’s failure to inform the preliminary appeals committee that Heacock had informed Officer Jackson that he (Heacock) had placed the bottle in Justin’s backpack; (4) Hite’s decision to ignore Andrew’s request to testify at the expulsion hearing. Atkins further testified that it was the school’s responsibility to have Heacock testify at the expulsion hearing. She stated:

At the preliminary hearing, the persons representing the school bring all information — they should be providing us with all information that they are using or have gathered in their investigation to support their decision to suspend and recommend a student for expulsion. Andrew Heacock should have been given the opportunity to come forth on Justin’s behalf at the school level and at the preliminary appeal. Now, whether he would have come with the Christys, he could have, Mr. Hite, he could have. He could have been made available.
It was the school’s responsibility to show all information whether it exonerates or if it shows that Justin was ... in violation of the school board policy.

Atkins opined that Justin would not have been expelled if Hite had provided all of the available information to the committee.

After hearing all of the testimony and reviewing all of the evidence, the trial court stated:

[T]he student was treated in an unbelievably unfair manner through this process with the school board-from the beginning up through the process with the school board. I can certainly understand the things that went on initially that morning when the bottle fell out of his backpack. But in some short order there was sufficient evidence to stop the prosecution against| 1S[Justin].
There is a glaring contrast in the testimony of [assistant principal] Mr. Hite and the testimony of Mr. Heacock. This Court has absolutely no problem stating unequivocally that it accepts the testimony of Mr. Heacock as far more credible than the testimony of Mr. Hite. Mr. Hite, the Court believes, commenced a series of actions that effectively concealed the true subject of his conversation early on with Mr. Heacock. The record was allowed to proceed with Mr. Hite’s representation that Mr. Heacock changed his story. I believe Mr. Heac-ock; I do not believe Mr. Hite. I think anybody listening would come to the same conclusion if they had the opportunity to listen to both of them testify.
And to listen to Mr. Anderson was unnerving because Mr. Anderson did nothing but determine that the whiskey bottle had broken — had fallen out of the backpack and broken. He exercised no discretion and there’s no requirement of a particular punishment, discretion is presumed. There’s no requirement that a student be expelled. He had the discretion to — if he were going to accept that [Justin] was responsible, he had the discretion to assign a lesser punishment, but he denied that he had the ability to exercise that discretion.
Mrs. Atkins — the Court actually felt sorry for her. I thing she was genuinely upset when she realized what happened to this student. She seem very, very upset, somewhat — very sad about what happened to him and acknowledged that this child was not treated appropriately or fairly. I think the actions by Mr. Hite more likely than not were intentional and the actions by Mr. Anderson were at least grossly negligent. I have no problem at all finding liability.
I think each step of the way, frankly, the student and his parents were trusting that they were going to get some sort of fairness and it just never happened.... [Justin] never got the hearing that he was supposed to have. And that in large part is because Mr. Hite never accurately told the truth about what Andrew told him.
At the preliminary appeal stage Mrs. Atkins also agreed that the child had not been treated fairly, the school had failed in its responsibility to present all the evidence and |19that had she known about it the result would have been different.

After reviewing the record in its entirety, we find no manifest error in the trial court’s ruling. It is apparent from the testimony that Hite’s blatant misrepresentation of the truth was a cause-in-fact of Justin’s expulsion from Captain Shreve. The entire process was tainted by Hite’s misrepresentations to Dr. McCalla, the hearing officer and the preliminary appeals committee. Hite admitted that he did not treat Justin fairly and his actions were “inappropriate and unjust.” Hite was unable to explain his actions, stating, “I didn’t have a specific reason for doing so.... I didn’t have a personal vendetta against Justin[.]”

Anderson admitted that he did not conduct any type of investigation into the matter. He testified that he simply relied upon Hite’s representations and “it really didn’t matter what the heck [Justin] said.” Anderson also admitted that he would have expelled Justin regardless of the circumstances because expulsion is “what we normally do.”

Atkins testified that decisions of the preliminary appeals committee and the CPSB were based upon information provided to them by Hite. Atkins provided uncontro-verted testimony that Justin would not have been expelled if Hite had provided all of the available information to the committee.

Although Justin was superficially afforded procedural due process, the entire outcome of the proceedings was based upon a faulty premise — Hite’s misrepresentations to the committee. Hite admitted that Justin did Unnot receive fairness during the school’s “investigation” into the incident. The hearing officer, preliminary appeals committee and the CPSB made virtually no effort to ascertain the truth or to enact a punishment that was proportionate to the offense. Despite compelling evidence that the bottle of whiskey was placed into Justin’s backpack by someone else and that Justin was unaware that the bottle was in his backpack, Anderson maintained his belief that he had no discretion in this matter. The trial court’s findings were amply supported by the record. Accordingly, we find no manifest error in the trial court’s ruling that plaintiff met his burden of proving that the CPSB and its officials breached its duty to conduct an investigation into the matter and to exercise its discretion in implementing a punishment. The breach of that duty resulted in Justin being wrongfully expelled from school during his senior year of high school.

Damages

The CPSB contends the trial court abused its discretion in awarding damages in the amount of $50,000. The CPSB argues that Justin was “embarrassed, angry and hurt” by his expulsion from Captain Shreve, but there is no evidence that he sought any medical or psychological treatment; therefore, the CPSB argues that the highest reasonable amount that should have been awarded was $5,000.

Contrarily, plaintiff contends the trial court did not abuse its discretion in awarding $50,000. Plaintiff argues that the fact that Justin “persevered and overcame adversity ... should not become the basis for concluding that he did not suffer ‘damage’ at the hands of school board | ¾1 supervisors.”

In the assessment of damages for personal injury, much discretion must be left to the judge or jury. LSA-C.C. art. 2324.1. General damages involve mental or physical pain and suffering, inconvenience and loss of intellectual or physical enjoyment that cannot be definitively measured in monetary terms. Day v. Ouachita Parish School Board, 35,831 (La.App.2d Cir.8/8/02), 823 So.2d 1039; Robbins v. State Dept. of Labor, 31,590 (La.App.2d Cir.2/24/99), 728 So.2d 991. Before the trial court’s general damage award may be disturbed, the record must clearly show that the factfinder abused its broad discretion in making the award. Poulan v. Hunter, 36,225 (La.App.2d Cir.11/6/02), 830 So.2d 1125; Day, supra.

The assessment of damages is a determination of fact, one entitled to great deference on review. See v. Entergy Corp., 2010-0065 (La.6/4/10), 35 So.3d 1081; Wainwright v. Fontenot, 2000-0492 (La.10/17/00), 774 So.2d 70. Accordingly, a reviewing court’s role in examining general damages is not to decide what it considers to be an appropriate award, but rather, to review the exercise of discretion by the trier of fact. See v. Entergy Corp., supra; Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994). If an appellate court finds that the trier of fact clearly abused its discretion, it can only disturb the award to the extént of lowering it (or raising it) to the lowest (or highest) point which is reasonably within the discretion given to that court. See, See v. Entergy Corp., supra; Coco v. Winston Indus., Inc., 341 So.2d 332 (La.1977).

|22In the instant case, prior to rendering an award for damages, the trial court stated:

[T]he student did a remarkable job of mitigating his loss.
I want to be very clear, the purpose of the damage award is not punitive. It’s not to punish the school system for what occurred. It’s to — but it needs to take into account what happened to the student from his perspective in a reasonable way[.] Analogizing it to an accident with significant objective indication of injuries, the Court is going to make a damage award of $50,000. I think he was — when he got into Tech obviously he had some remaining problems but I think he was on his way upward and past this hurdle in his senior year.
And admittedly, that’s not scientific, it’s not precise. It’s not to punish the school board, if we had punitive damages it might be a significantly larger award. But it’s not to punish the school board. It’s to try to make the student whole and I think that’s the best I can tell — the best I can calculate an award that would do that[.]

We have conducted an extensive review of relevant case law, and we note that this case presents a unique set of facts, making it difficult to measure monetary damages with any degree of certainty. Justin testified that he did not graduate from high school. The alternative school to which he was assigned did not offer any of the college preparatory courses that he was enrolled in at Captain Shreve. Justin testified that virtually no instruction was provided at the alternative school and that he spent his days at the alternative school as if he were “in detention.” Rather than remain in that unproductive environment, Justin wisely elected to obtain his GED and continue his education at a local community college. Justin also testified that he did not attend his senior prom and was denied involvement with “senior year activities.” He further stated that his expulsion impacted his | ^relationship with his friends and other students. He stated:

It was hard. For the most part it was hard to, you know, I even had one of my friends call me and ask me to prom and I wasn’t able to do it. I went to graduation ... it was hard, you know, to see the bunch I would have graduated with walk across. For the most part, I just didn’t understand what was going on.

As the CPSB points out, Justin did not suffer any physical damage, and there is no evidence that he sought any psychological treatment as a result of the expulsion. However, it is indisputable that the unique facts of this case are extraordinarily tragic. It is clear from Justin’s testimony that he spent an extended period of time feeling the ill effects of being expelled from his high school. As a result of his expulsion, Justin was not afforded the opportunity to participate in any of the age-old “senior year” events with his classmates, including prom and graduation. Although he mitigated his damages by continuing his education, the record reflects that the way Justin was treated by school officials caused him great emotional distress and inconvenience and substantially impacted his enjoyment of life for at least a year.

In Menard v. Lafayette Ins. Co., 2009-1869 (La.3/16/10), 31 So.3d 996, the plaintiff was injured in an automobile accident. The jury awarded the plaintiff $185,300 for medical expenses; the court of appeal increased that award to $1,510,435.02. The Supreme Court reversed the court of appeal’s judgment and reinstated the jury’s verdict, stating:

We find the record evidence easily supports a reasonable basis for the jury’s award[.] This jury award should not have been amended although the Court of Appeal found a higher award would have been more reasonable. We understand and appreciate the reality that many times we |?4would have judged the ease differently had we been the trier of fact, but this is not our function as a reviewing court. A reviewing court cannot disturb an award because it would have judged the case differently. The manifest error doctrine is not so easily broached. Rarely do we find a reasonable basis does not exist in cases with opposing views. We note it is not hard to prove a reasonable basis for a finding, which makes the manifest error doctrine so very difficult to breach, and this is precisely the function of the manifest error review.

Id. at 1011 (emphasis in original).

We find that the record provides a reasonable factual basis for the court’s award of $50,000 in general damages. Based upon these facts, we cannot conclude that the trial court abused its discretion. The assignment of error lacks merit.

CONCLUSION

For the reasons set forth herein, the trial court’s judgment, finding Dr. Sandra McCalla and the Caddo Parish School Board liable to Justin Christy for damages in the amount of $50,000, is hereby affirmed. Pursuant to LSA-R.S. 13:5112, costs of this appeal are assessed against the defendant, the Caddo Parish School Board.

AFFIRMED.

PER CURIAM.

hWe hereby amend the first sentence of the conclusion of the opinion to read, “For the reasons set forth herein, the trial court’s judgment finding the Caddo Parish School Board hable to Justin Christy for damages in the amount of $50,000 is hereby affirmed.”

AMENDED, AND AFFIRMED AS AMENDED.

APPLICATION FOR REHEARING

Before BROWN, WILLIAMS, CARAWAY, MOORE and LOLLEY, JJ.

Rehearing denied.

CARAWAY, J.,

dissents from denial of rehearing.

hi would grant rehearing in this matter. The original opinion fails to recognize the statutory procedure for the discipline of students under Title 17 (La. R.S. 17:416), and instead creates tort relief for a school board’s decision which may be remedied only through the process provided by the legislature.

Regardless of the actions of Marvin Hite or Larry Anderson in reaching their disciplinary conclusions regarding Justin Christy, the discipline imposed was properly appealed through the school system pursuant to the statutory framework so that the punishment eventually became the product of a decision of the elected members of the school board. As briefly acknowledged in the majority opinion, the disciplinary decision was appealed to the school board. On November 18, 2003, the board heard the testimony of Justin and Andrew Heacock. The board’s decision to continue Justin’s expulsion from Captain Shreve High School may have resulted from its measure of the credibility of the two students or from a decision to impose strict liability upon Justin regardless of how the whiskey lodged in his backpack. The decision of the elected body, however, was subject to further process provided by the legislature whereby Justin’s punishment was subject to immediate judicial review. La. R.S. 17:416(C)(5) provides:

(5) The parent or tutor of the pupil may, within ten days, appeal to the district court for the parish in which the student’s school is located, an adverse ruling of the school board in upholding the action of the superintendent or his des-ignee. The court may reverse or revise the ruling of the school board upon a finding |2that the ruling of the board was based on an absence of any relevant evidence in support thereof.

See, e.g. McCall v. Bossier Parish School Bd., 34,983 (La.App.2d Cir.3/16/01), 785 So.2d 57 (where expedited process at the trial court and court of appeal, including a TRO, was utilized). Yet, Justin made no appeal, choosing to later seek relief in tort.

In the school board’s original appellate brief to this court, the following assignment of error was made:

The trial court erred in failing to dismiss plaintiffs claim where plaintiff failed to exhaust his administrative remedies.

This issue is actually broader than this assignment of error. The legislature has provided for expedited judicial review of an arbitrary decision of a public body in order to prevent irreparable harm to an expelled student. The evidence in this tort action presented to the trial court, years after the expulsion, examined the process Justin received, cross-examined Hite and Anderson, and heard the explanation of Heacock, the very same evidence a court in December 2003 should have heard to end the harm to Justin and restore him to school attendance at Captain Shreve. Yet, the majority has not addressed this specific legislatively-mandated process, and substitutes its judicially-determined view of tort duties in objection to the public body’s decision.

The appellant is entitled to review of the significant legal question posed by its assignment of error. The legislative structure of review for decisions of elected officials for public education should not dismiss without explanation. A rehearing to address this issue should be granted.

CARAWAY, J., dissents from the denial of application for rehearing and assigns reasons.

BROWN, C.J., would grant rehearing.

      . Justin testified that he was placed in handcuffs and transported from the school in Cpl. Jackson’s police car. He was held "in an office” at the police station while Cpl. Jackson "did paperwork” and attempted to contact Justin’s parents.

      . Justin testified that he "thought” he recalled reading Heacock’s statement at the hearing. Anderson testified that he did not hear a statement from Heacock during the hearing.

      . In a letter dated October 24, 2003, Diane Atkins, director of the CPSB's attendance and census department, stated:
      There is no doubt that Justin violated the District Discipline Code when he was found in his possession [sic], having alcohol in his backpack and on school property is in direct violation of the Discipline Policy and State Law.
      The actions taken by the assistant principal and the subsequent hearing to determine consequences were appropriate for possession of alcohol. It is noted that a student came forth with knowledge concerning the incident, but it is not presented at the hearing; therefore [Justin's] suspension is modified to December 19, 2003.

      .By this time, Justin had been out of school for approximately six weeks. The alternative school did not provide the college preparatory courses Justin had been enrolled in at Captain Shreve. Therefore, rather than remain in the alternative school, Justin elected to obtain his GED. Subsequently, Justin attended Bossier Parish Community College for approximately six months, then transferred to Louisiana Tech University. He has since graduated from Louisiana Tech with a degree in biology with a minor in chemistry. At the time of trial, Justin was enrolled in the physician's assistant program at Louisiana State University Health Sciences Center.

      . On May 27, 2004, Justin was substituted as a party plaintiff, as he had reached the age of majority.

      . LSA-R.S. 17:416(C)(1) provides:
      Upon the recommendation by a principal for the expulsion of any student as authorized by Subsection B hereof, a hearing shall be conducted by the superintendent or by any other person designated so to do by the superintendent to determine the facts of the case and make a finding of whether or not the student is guilty of conduct warranting a recommendation of expulsion. Upon the conclusion of the hearing and upon a finding that the student is guilty of conduct warranting expulsion, the superintendent, or his designee, shall determine whether such student shall be expelled from the school system or if other corrective or disciplinary action shall be taken. At said hearing the principal or teacher concerned may be represented by any person appointed by the superintendent. The concerned teacher shall be permitted to attend such hearing and shall be permitted to present information the teacher believes relevant. Until such hearing takes place the student shall remain suspended from the school. At such hearing the student may be represented by any person of his choice.

      . Our records reveal that all costs of this appeal have been paid, and no other costs are due at this time.


author: McDonald, j.

text:
    ST. TAMMANY PARISH FIRE PROTECTION DISTRICT NO. 4 v. Operator John PICONE and Captain Mike Jacobs.
    No. 2010 CA 0481.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 15, 2010.

      Hector R. Lopez, Covington, LA, for Plaintiff/Appellant, St. Tammany Parish Fire Protection District No. 4.
    Louis L. Robein, Jr., Metairie, LA, for Defendants/Appellees Operator John Pi-cone and Fire Captain Mike Jacobs.
    Before WHIPPLE, McDONALD, and McClendon, jj.
   McDonald, j.

IgOn May 10, 2009, there was a Mother’s Day family party at St. Tammany Parish Fire Protection District No. 4, Fire Station 43. Operator John Picone had climbed to the top of an extended fire truck ladder with his six-year-old son, who aspired to be a fire fighter. District Fire Chief Greg Kernan and Assistant District Fire Chief Daniel Haydel were driving down Highway 59 near Fire Station 43, when they noticed that the ladder truck was extended. They stopped at the fire station, and Assistant Chief Haydel went inside to tell Captain Jacobs to get Operator Picone to come down from the ladder, which Captain Jacobs did.

Thereafter, St. Tammany Fire Protection District No. 4 issued a departmental charge to Operator Picone and Captain Jacobs which asserted “possible violation of Section 9.20 item # 3 ‘The commission or omission of any act to the prejudice of the department service or contrary to the public interest of policy’ of the Municipal Fire & Police Civil Service Law.” After the hearing, Captain Jacobs and Operator Pi-cone were each given a 24-hour suspension without pay, and without overtime during the pay cycle.

Operator Picone and Captain Jacobs each appealed their disciplinary rulings to the Civil Service Board. After their hearings, the Civil Service Board amended both discipline actions to written reprimands. St. Tammany Fire Protection District No. 4 appealed the Civil Service Board rulings to the district court, which affirmed the Civil Service Board rulings. St. Tammany Fire Protection District No. 4 is now appealing the district court judgment.

APPLICABLE LAW

Matters involving classified employees of municipal fire and police departments are governed by the Municipal Fire and Police Civil Service Law, La. R.S. 33:2471, et seq., and by La. Const.1921, Art. XIV, § 15.1. See La. R.S. 33:2591 and La. Const. 1974, Art. X, § 18. Any regular employee in the classified ^service who feels that he has been discharged or subjected to any corrective or disciplinary action without just cause may demand a hearing and an investigation by the Board to determine the reasonableness of the action. La. R.S. 33:2501(A). Landry v. Baton Rouge Police Department, 2008-2289, pp. 4-5 (La. App. 1 Cir. 5/8/09), 17 So.3d 991, 994 (footnote omitted).

If the decision of the Board is prejudicial to the appointing authority, the appointing authority may appeal the decision to the court of original and unlimited jurisdiction in civil suits of the parish where the Board is domiciled. See La. R.S. 33:2501(E)(1). The district court’s review of the Board’s quasi-judicial administrative determination is an exercise of appellate jurisdiction. Review by the district court does not include a trial de novo. The district court’s review is confined to the determination of whether the decision made by the Board was made in good faith for cause under the provisions of La. R.S. 33:2471-2508. La. R.S. 33:2501(E)(3). The district court may not substitute its opinion for that of the Board. The district court should accord deference to a civil service board’s factual conclusions and must not overturn them unless they are manifestly erroneous. Likewise, the intermediate appellate court’s review of a civil service board’s findings of fact are limited. Those findings are entitled to the same weight as findings made by a trial court and are not to be overturned in the absence of manifest error. Baton Rouge Police Department v. Robinson, 2009-1571, p. 5 (La.App. 1 Cir. 4/30/10), 38 So.3d 993, 996 (citations omitted).

ANALYSIS

St. Tammany Fire Protection District No. 4 asserts that the Civil Service Board constructively found both the existence of legal cause and good faith on its part and simply substituted its judgment for that of the appointing authority.

The district court expressly stated, in its reasons for judgment, that after considering the record it could not say that the Civil Service Board was arbitrary |4and capricious, or in bad faith or without cause, in amending the disciplinary actions from a 24-hour suspension to a written reprimand. After a thorough review of the case, we cannot say that the district court failed to use the correct standard of review in affirming the Civil Service Board’s decision.

An examination of the record shows that while the Civil Service Board found that the complained of conduct did occur, the Civil Service Board further found that the policy or rule relied upon by St. Tammany Fire Protection District No. 4 to impose a suspension upon Operator Picone and Captain Jacobs was ambiguous and in need of clarification. After a thorough review of the record, we find no manifest error in the Civil Service Board’s ruling.

Thus, for the foregoing reasons, the district court judgment is affirmed. The costs of the appeal in the amount of $633.92 are assessed against St. Tammany Fire Protection District No. 4.

AFFIRMED.