author: FREDERICKA HOMBERG WICKER, Judge. EDWARDS, C.J.,

text:
    SUCCESSION OF Rosalie Bigman LINDER.
    No. 11-CA-633.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 22, 2012.
    Rehearing Denied July 19, 2012.

      Charles B. Johnson, Attorney at Law, New Orleans, LA, Daniel T. McKearan, Attorney at Law, Harahan, LA, for Plain-tifi/Appellee.
    Perry R. Staub, Jr., Charlton B. Ogden, III, Donald J. Miester, Jr., Attorneys at Law, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS, and FREDERICKA HOMBERG WICKER.
   FREDERICKA HOMBERG WICKER, Judge.

[i>This Court is intimately familiar with the facts of this case as it has had a long and protracted history, spanning over a period of seventeen years. In 1998, we affirmed the trial court’s ruling and determined that the provision of the decedent’s testament disinheriting a forced heir was invalid. Succession of Linder, 97-1269 (La.App. 5 Cir. 6/30/98), 717 So.2d 1276 (unpublished) (Linder I). Then, in 2002, we affirmed the trial court’s ruling that the decedent had testamentary capacity, that the statutory testament was valid as to form, that the plaintiff failed to prove undue influence in the execution of the will, and that denied the forced heir’s request to annul the probated testament. Succession of Linder, 02-106 (La.App. 5 Cir. 7/30/02), 824 So.2d 523 (Linder II). In 2006, we dismissed the executor’s appeal from the trial court’s denial of his exception of prescription as to the plaintiffs claim for reduction of excessive donations, finding that the interlocutory judgment was not appealable and remanded the matter to the trial court. Succession of Linder, 05-640 (La.App. 5 Cir. 2/14/06), 924 So,2d 293 (Linder III). Finally in 2008, we vacated the judgment of possession that was rendered by the trial court lson June 18, 2007 and remanded the case to the trial court. Succession of Linder, 08-394 (La.App. 5 Cir. 10/14/08), 994 So.2d 148 (Linder IV).

Now, the parties are back before us for the fifth time on appellant’s, Mrs. Jane L. Rosenthal’s, appeal of the trial court’s November 16, 2010 judgment, denying her Opposition to the Final Tableau of Distribution and Request for Reduction and Recalculation of Mass Estate.

During the pendency of Linder IV, the executor/appellee, Mr. Leo Guenther, filed a Petition for Homologation of Final Account on November 16, 2007, covering the period from January 1, 2007 through November 15, 2007. Although the trial court ordered the final account homologated on December 10, 2007, Mrs. Rosenthal opposed the homologation the following day. Mr. Guenther opposed the opposition on January 9, 2008, arguing that Mrs. Rosen-thal’s opposition to the final account was untimely. After continuances and other delays, the trial court heard Mrs. Rosen-thal’s Opposition to the Final Tableau of Distribution and Request for Reduction and Recalculation of Mass Estate on June 18, 2010.

At the conclusion of the trial, the court took the matter under advisement and rendered its judgment, with written reasons, on November 16, 2010, denying Mrs. Ro-senthal’s opposition in part and granting it in part. The trial court denied Mrs. Ro-senthal’s request to revalue the oil and gas interests and accepted the valuation of $2,949.00 as depicted in the Amended and Restated Sworn Descriptive List. The court also denied Mrs. Rosenthal’s request to reduce all particular legacies as well as her request to find that Mr. Guenther breached his fiduciary duty. The trial court ordered the final tableau be amended to reflect the following:

ASSETS $69,046.41
DEBTS DUE ON DATE OF DEATH $21,745.00
FUNERAL EXPENSES $ 3,773.55
J^LEGAL CHARGES $ 1,657.00
NET ESTATE $41,870.86
FORCED PORTION (1/4) $10,467.72
DISPOSABLE PORTION (3/4) $31,403.14

Mrs. Rosenthal moved for new trial on November 80, 2010, on the issues of the valuation of the estate’s mineral interests, the calculation of the value of the estate, the method of satisfying her legitime, and on whether Mr. Guenther breached his fiduciary duty. The court denied the motion on January 20, 2011. Mrs. Rosenthal moved to designate the November 16th judgment as final. The trial court designated the judgment final and appealable pursuant to La. C.C. art. 1915. This appeal follows.

Assignments of Error

Ms. Rosenthal assigns seventeen errors. Specifically, she contends that the district court erred by:

1. valuing Mrs. Linder’s mineral interests at $2,949.00 on the date of her death, when they were actually worth $2,549,571.00;
2. rejecting the appraisals that included information developed after the date of Mrs. Linder’s death;
3. calculating Mrs. Linder’s aggregate estate to be worth $69,046.41.00;
4. calculating Mrs. Linder’s estate’s net value to be $41,870.86;
5. calculating her legitime to be worth $10,467.72;
6. failing to reduce all of Mrs. Lin-der’s will’s legacies under La. C.C. art. 1511 to pay for her legitime;
7. failing to give her an undivided one-fourth of the Succession’s oil and gas interest;
| r,8. failing to give her an undivided one-fourth of the past and future royalties;
9.failing to require the particular legatee, Mr. Guenther, to return the oil and gas royalties accruing on his legacy under La. C.C. art. 1515;
10. finding that her legitime should be satisfied solely from the residue of the succession that would otherwise have been paid to Touro Synagogue, the residuary legatee;
11. finding that Mrs. Linder expressed a preference in her will under La. C.C. art. 1512 to pay an undisclosed forced heir her legitime solely from the residuary legacy;
12. failing to award her interest from the date she opposed the disinheri-son and demanded her legitime;
13. finding that Mr. Guenther had fulfilled his fiduciary duty; and
14. failing to award her damages for Mr. Guenther’s breach of fiduciary duty.

She then argues in the alternative that the district court erred in:

15. finding that Mrs. Linder’s estate was solvent because its liabilities significantly exceeded its assets, and the estate was only rendered solvent by Mr. Guenther’s agreement to pay certain [sic] of its expenses;
16. finding that Mrs. Linder’s estate was solvent because it impermissi-bly reduced the estate’s liabilities by removing post-death expenses from its Article 1505 calculation; and
17. failing to find that all of Mrs. Lin-der’s testaments lapses because the estate was insolvent.

| Trial Testimony

Mr. Terry A. Johnston, of Atwater Consultants, Mr. Mike McKenzie, of Seek Production, LLC., and Mr. Guenther testified at the trial.

Mr. Johnston testified as an expert in petroleum engineering and mineral interest valuations and first became involved in the case as the court appointed appraiser. Pursuant to his appointment, Mr. Johnston provided the first appraisal — Atwater I— on May 17, 2005, which reflected a fair market value of $2,949.00 on the date of death, November 30,1994. He was subsequently hired by Mrs. Rosenthal to complete additional appraisals. On May 17, 2005, he completed another appraisal in which the estate’s oil and gas interests were valued at $261,528.00 as of March 1, 2005 (Atwater II). He then completed a March 4, 2008 appraisal which valued the oil and gas interests at $2,495,989.00 (At-water III) and a June 14, 2010 appraisal which valued the interests at $2,549,571.00 (Atwater IV). Of the four appraisals, Mr. Johnston testified that Atwater I was the only appraisal that reflected a fair market value on the date of death. Atwater II reflected a fair market value as of March 1, 2005, while Atwaters III and IV reflected true values on the date of death. Mr. Johnston explained that a fair market valuation is restricted to the use of information that is available on a specified date, while true value works backward to determine an asset’s worth on a previous date as opposed to what the asset was perceived to be worth at that time.

In Atwater I, Mr. Johnston stated that the fair market value of the estate’s oil and gas interests on the date of death was $2,949.00. He explained, however, that Atwater I only considered the mineral reserves actually produced during the years preceding Mrs. Linder’s death. In Atwa-ter IV, however, he testified that he used post-production analysis, which involved a two-fold process. First, he took the sum of the total income derived from the sale of the oil and gas attributable to the 17mineral royalty interests the Succession owned in November 1994 until on or about June 1, 2010, which totaled $8,242,589.00. He then discounted that figure back to the date of death at a rate of 8 percent and determined the true value to be $2,395,111.00. He then determined the current fair market value of the remaining income as of April 1, 2010, and discounted that value back to the date of death to obtain the true value, which he determined to be $154,460.00. Finally, he took the sums of both true values and determined that the true value on the date of death was $2,549,571.00. Although he determined that this was what the mineral interests were actually worth in 1994, he testified that no quantifiable data existed at that time to suggest that the mineral reserves exceeded what was generally thought at the time.

Mr. Mike McKenzie testified as an expert in the field of geology and valuation of reservoirs. His report dated October 2, 2009, estimated the value of the produced volumes from November 30, 1994 through July 31, 2009, as well as the future proved developed producing and undeveloped reserves subject to the Succession. Mr. McKenzie testified that he used the decline curves method and incorporated the date of death prices of $18.07/BBL for oil and condensate and $1.75/MCF for gas to obtain a total proved value of $2,066,397.00. He then discounted that amount at a rate of 10 percent to the date of death to compute a present value of $560,476.00. He opined that the variance which existed in his appraisal and Atwater’s appraisals could be attributed to the fact that Atwa-ter utilized the increased prices as opposed to the date of death prices. He further stated that his October 2, 2009 appraisal was based on present value and not fair market value.

laDiscussion

Before addressing the merits of the appeal, we must first determine whether it is properly before this Court.

The trial court designated the November 16, 2011 judgment as final and appeal-able pursuant to La. C.C.P. art.1915. The order designating the judgment final stated, “[ujpon considering the facts of this case and the applicable law, including the factors announced in R.J. Messinger v. Rosenbloom [sic], 04-1664 (La.3/2/05); 894 So.2d 1113, the court finds, for the reasons set forth in Rosenthal’s supporting memorandum, that there is no just reason for delay” (emphasis added).

The proper standard of review for an order designating a judgment as final for appeal purposes when accompanied by explicit reasons is whether the trial court abused its discretion. Royal Oldsmobile Co., Inc. v. Heisler Prop., L.L.C., 10-152 (La.App. 5 Cir. 12/28/10), 58 So.3d 483, 489. However, if no reasons are given but some justification is apparent from the record, the appellate court should make a de novo determination of whether the certification was proper. Id. citing R.J. Messinger, Inc. v. Rosenblum, 04-1664, pp. 13-14 (La.3/2/05), 894 So.2d 1113, 1122. In this case, the order designating the judgment as final is accompanied by explicit reasons — those set forth in Mrs. Rosen-thal’s supporting memorandum. Therefore, we must determine whether the trial court abused its discretion by designating the judgment as final. After a careful review of the record, particularly Mrs. Ro-senthal’s supporting memorandum, we find that the trial court did not abuse its discretion and properly designated the judgment as final.

1 JPirst, Second, and Third Assignments of Error

Mrs. Rosenthal first contends that the trial court erred in valuing the Succession’s oil and gas interests at $2,949.00; by rejecting appraisals that considered information developed after the date of death; and by calculating the net estate to be worth $69,046.41. Thus, our initial inquiry here is to determine whether the trial court erred in accepting $2,949.00 as the fair market value of the oil and gas interests on the date of death.

It is well settled that, on appellate review of a factual determination, the reviewing court may not set aside the trier’s findings of fact in the absence of manifest error or unless he is clearly wrong. Succession of Gilbert, 95-426, p. 5-6 (La.App. 5 Cir. 1/30/96), 668 So.2d, 1212, 1215, writ granted, 96-0949 (La.2/7/97), 689 So.2d 1314. The issue to be resolved by the reviewing court is not whether the trier of fact was right or wrong, but whether his conclusion was a reasonable one. Id. citing Stobart v. State through DOTD, 617 So.2d 880 (La.1993). Thus, where two permissible views of the evidence exist, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. Id.

In order “to determine the reduction to which the donations, either inter vivos or mortis causa, are subject, an aggregate is formed of all property belonging to the donor or testator at the time of his death.” La. C.C. art. 1505. The decedent’s property must, therefore, be appraised for market value as of the date of death. One of the complexities in this case, however, is the fact that the record is clouded with five appraisals which depict varying values of the estate’s oil and gas interests, i.e. “fair market value,” “true value,” and “present value.” In this | ¶ ncase, Atwater Consultants provided four appraisals. Atwater I reflects a “fair market value” on the date of death; Atwater II reflects a “fair market value” as of March 1, 2005; and Atwaters III and IV reflect a “true value” on the date of death. The fifth appraisal, provided by Seek Production, LLC., reflects an appraisal based on “present value” on the date of death. Thus, we must first determine what difference, if any, exists between these values.

Mrs. Rosenthal contends that “true value” and “fair market value” are synonymous and urges this Court to adopt Atwa-ter IV, which depicts a “true value” on the date of death of $2,549,571.00. Mrs. Ro-senthal relies on Black’s Law Dictionary to support her contention that these terms have the same meaning. Although Black’s Law Dictionary defines the terms identically, Mrs. Rosenthal’s reliance on such is misplaced in light of the jurisprudence that clearly states that values are established on the date of death. See Succession of Songne, 94-1198, p. 4 (La.App. 3 Cir. 11/2/95), 664 So.2d 556, 559, (the proper time for determining the value of the forced portion is the date of the decedent’s death.); Succession of Pratt, 97-580 p. 7 (La.App. 5 Cir. 11/25/97), 704 So.2d 310, 313, (“ ‘active mass, legitime’ and ‘disposable portion’ on an estate are calculated with reference to the value as of the date of death.”) (emphasis in original).

Atwater IV defines “true value” as “the amount that a future sum of money is worth on some given date for a specified rate of return.” (emphasis added). Mr. Johnston explained that in order to compute the “true value” in Atwater IV, he considered the total sum derived from the sale of oil and gas interests from November 1994 through June 2010. So based on his report and testimony, it is apparent that Atwater IV used information obtained subsequent to the date of death to compute the “true value.” Thus, it stands to reason that if values are set on the date of death, those values subsequently obtained cannot be used to calculate the |uvalue of the estate’s oil and gas interests on the date of death. In spite of this, however, Mrs. Rosenthal states that even if the oil and gas were not being produced on the date of death, they were in fact, present in the ground on that date and we should therefore consider the information obtained subsequent to the date of death to value the oil and gas interests.

The Amended Descriptive List in this case values the oil and gas interests at $2,949.00. La. C.C.P. art. 3136 provides that the descriptive list of succession property shall be accepted as prima facie proof of all matters shown therein, unless amended or traversed successfully. Suc cession of Hebert, 03-0531, 03-0532 (La.App. 1 Cir. 9/17/04), 887 So.2d 98,100, writ denied, 04-2571 (La.12/17/04), 888 So.2d 872. However, any interested party may traverse the descriptive list at any time. Id. The burden, however, is on the party filing a motion to traverse to show that the descriptive list is in error. Succession of Feitel, 05-1482 (La.App. 4 Cir. 4/18/07), 958 So.2d 58, 60, writ denied, 07-1046 (La.8/31/07), 962 So.2d 436. It was therefore incumbent upon Mrs. Rosenthal' to prove the inaccuracy of the value assigned to the oil and gas interests.

Mrs. Rosenthal opposed the final tableau in December of 2007, but the matter was not heard until June of 2010. Therefore, she has had ample opportunity to conduct discovery in order to determine what was known or what reasonably could have been learned by a willing buyer about the reserves which were actually in the ground on November 30, 1994 — the date of her mother’s death. Yet, she failed to present any evidence to show that the fair market value was anything other than $2,949.00 on the date of death nor has she presented any evidence that a willing buyer could have learned, on November 30, 1994, that the estate’s unit well was capable of producing more than it had produced in the years preceding and immediately following her mother’s death. In fact, her own expert testified that no 112quantifiable data existed on November 30, 1994, to support the finding that the reserves exceeded what people generally thought at that time. To now say, eighteen years later, that Mrs. Rosenthal is entitled to increase the fair market value of the oil and gas interests based on information later obtained would be untenable. As the trial court stated in its reasons for judgment:

[t]he law requires this Court to determine the fair market value of the mineral interests as of the date of death, thereby precluding the consideration of information obtained years later. Any other finding would allow the value of the disposable portion and legitime to continuously fluctuate until the heirs are finally placed in possession. Such a finding would cause great uncertainty and is simply contrary to law.

Yet, Mrs. Rosenthal maintains that information available after her mother’s death should be used in the estate’s valuation to account for the tremendous appreciation of the oil and gas interest. To support this proposition, she cites Succession of Dorand, 94-1627 (La.App. 4 Cir. 7/26/95), 659 So.2d 523 where the court ordered a reduction in the value of an estate after the date of death to better reflect the estate’s value as it existed at the time of death.

In Dorand, the decedent owned 100 shares of stock in a closely held corporation which were depicted on the sworn descriptive list as having a date of death value of $162,925.08. The trial court determined, however, that the executor had overvalued the stock and therefore ordered a reduction. On appeal, the Fourth Circuit noted that the executor’s valuation failed to take into account unpaid IRS back taxes as well as the prior three years’ operating losses which were both pending and exigible before the decedent’s death. The Fourth Circuit noted:

“[Generally, events occurring after the death of the deceased should not affect the value of stock for purposes of a descriptive list | ^valuation. Cf. Succession of Katakura, 621 So.2d 893 (La.App. 4th Cir.1993). However, in the instant case, the after-death debt incurred in liquidating the business, and any losses incurred during the operating of the business pending liquidation, were evidence bearing on the fair market value of the stock as of the time of death ...” (emphasis added).

Dorand, supra, at 525.

Thus, the court clarified that although the value of the stock was being adjusted after the time of death, the valuation was based on information readily available at the time of death — i.e., costs associated with liquidating a corporation.

Unlike Dorand, Mrs. Rosenthal produced no evidence that the information used to seek a post-mortem increase in value is information that was available when Mrs. Linder died. Thus, the presence of the dormant mineral reserves in the ground at the time of Mrs. Linder’s death is irrelevant. In this case, there just simply was not a vast amount of production occurring during the years preceding and immediately following Mrs. Linder’s death. The record is void of any evidence which suggest that, in November of 1994, the unit well was capable of producing more than it was. There was no evidence produced at trial that information existed in November of 1994 that would have increased the value of the mineral interests. And because there was no evidence of knowledge of information in 1994 that could have proven the existence of “millions of feet in recoverable oil and gas” owned by Linder on the date of her death, subsequent information proving the existence of those minerals cannot be considered in valuation.

In sum, post-mortem information, unbeknownst to the parties and discovered subsequent to the date of death, may not be used to re-value an estate since the succession is “calculated as of the date of death,” regardless of appreciations of |14value. Pratt, supra, at 313. We, therefore, find that the trial court did not err in accepting $2,949.00 as the “fair market value” of the oil and gas interests on the date of death. And because this was the only asset in dispute, we, likewise, find that the trial court did not err in its factual finding that the estate’s assets on the date of death totaled $69,046.41. Therefore, these assignments of error are without merit.

Fourth and Fifth Assignments of Error

Next, Mrs. Rosenthal contends that the trial court erred in calculating the estate’s net estate to be worth $41,870.86 and in calculating her forced portion to be worth $10,467.72. She contends that the active mass is actually worth $2,615,668.40, thereby increasing the forced portion to $647,123.22.

Universal and particular legatees are entitled to post-value appreciations in the value of their own legitimes. Pratt, supra. This Court expounded on this principle in Pratt — a case upon which Mrs. Rosenthal relies. Mrs. Rosenthal expands the Pratt holding however to suggest that a forced heir is entitled to any post-death increase in the value of legitimes by way of increasing the value of the active mass, leading to an appreciation of the forced portion. Mrs. Rosenthal’s interpretation of Pratt is incorrect, however. Rather than holding that forced heirs are generally entitled to post-death increases in legitimes, the holding was narrower. In Pratt, we determined that forced heirs, as universal legatees, are entitled to value appreciations in their own legitimes, as opposed to an appreciation of the active mass by way of the increase in value of another legitime.

In Pratt, a testator’s testament specified that his daughter, Catherine, was to receive the minimum amount of the estate that was required by law. The testament further specified the assets to be used for her bequest. The testament also 1 ^purported to disinherit the decedent’s other daughter, Anne, but this court held that the disinherison clause was invalid. There, we determined that Anne was a forced heir, and thus, a universal legatee. Catherine, however, was a particular legatee since her portion was to be satisfied by certain assets.

In that case, we held that the particular and universal legatees were entitled to post-death increases and decreases in the valuation of their legitimes. Id. Specifically, we stated, “... Ms. Pratt is entitled to any post-death increase in the value of her legitime ” (emphasis in original) and “... [Catherine] is entitled to post-death increases in values of the particular assets bequeathed to her.” Id. at 313. Our holding markedly differed from the Pratt daughters’ contention that the increases in their legitime should be used to increase the value of the active mass of the estate. The Pratt heirs were entitled to the increase of the assets only in their respective legitimes. We specifically stated so in Pratt and further held that “we [saw] no error in the trial court’s calculation of the active mass of the succession, which was based on the valuation of the assets as of the date of decedent’s death ...” (emphasis in original). Id.

Like the daughters in Pratt, Mrs. Rosenthal misinterprets our holding to mean that the post-death appreciation of Mr. Guenther’s particular legacy should increase the value of the active mass, and thus, the value of her forced portion. As explained, however, that was not our holding. Rather, the Pratt case specifically stated that the active mass of the estate was based on assets valued at the time of death but that each legatee was entitled to the increased value in the assets under their legitime. Once the value of the active mass is calculated at the time of death, and the legitimes are allocated, the active mass cannot be increased by appreciations in the value of individual legitimes. To hold otherwise would Ineffectively value the active mass after the time of death, which is specifically prohibited by Pratt, pursuant to La. C.C. art. 1505. Id. at 313.

As Pratt is applied to this case, Mrs. Rosenthal is entitled to any increases in the assets within her legitime, and Mr. Guenther is entitled to any increases in the value in his legitime. Mrs. Rosenthal’s legitime, however, does not consist of the mineral interests specifically bequeathed to Mr. Guenther. Thus, under Pratt’s specific holding, Mrs. Rosenthal cannot use the increased value of Mr. Guenther’s legi-time to claim that the value of the entire active mass is also increased, thereby leading to an increase in her forced portion. To that extent, Mrs. Rosenthal’s reliance on Pratt is misplaced. Therefore, these assignments of error are without merit.

Sixth, Ninth, and Tenth Assignments of Error

In assignments of error six, nine, and ten, Mrs. Rosenthal challenges the reduction the trial court applied in this case. Specifically, she argues that the trial court erred by failing to reduce all legacies under the will, by failing to require Mr. Guenther to return the oil and gas royalties accruing on his legacy, and by finding that the forced portion be satisfied only from the residue of the estate.

In substance, the testament at issue contains the following provisions:

1. I give and bequeath the sum of $2,000.00 cash to my dear friend, JANICE RICH STURDEVANT.
2. I give and bequeath any royalties and/or mineral interests which I own at my death to my dear friend, LEO A. GUENTHER.
3. I give and bequeath to ELSA QUINTANILLA the framed mirror approximately 29 inches by 49 inches and cabinet below the mirror situated in my living/dining room, the 19" Zenith television, T.V. table, and rose designed glass vase on the T.V.
4. I give and bequeath to LENY BOU-DREAUX the two (2) Chinese figurines, male and female, bearing the inscription on bottom “EVERLAST CORP. GOLDSCHEIDER.”
h75. I specifically disinherit my daughter, JANE LINDER ROSENTHAL, since she has known how to contact me for quite some time, but has failed without just cause to communicate with me for a period of at least two (2) years prior to the date of this will. Should it be determined that this provision is invalid, then, and in that event, I desire that she receive only that portion reserved to her as provided under the laws of the State of Louisiana.
The balance of my estate, I give and bequeath to the Touro Synagogue, 1501 General Pershing Street, New Orleans, Louisiana.

After calculating the forced portion to be $10,467.72, the trial court denied Mrs. Ro-senthal’s request to reduce all of the particular legacies and determined that her forced portion could be satisfied from the balance of the estate. Mrs. Rosenthal challenges these decisions. Before determining whether reduction is required, we must first classify the legacies made in the testament.

A universal legacy is a testamentary disposition by which the testator gives to one or more the whole of the property he leaves at his decease. Succession of Moffat, 577 So.2d 1210,1212 (La.App. 4 Cir.1991), writ denied, 582 So.2d 1312 (La.1991); La. C.C. art. 1606. A legacy under universal title is that by which a testator bequeaths a certain portion of the effects, as a half, a third or all of his immovables or movables or a fixed proportion of his immovables or movables. Id.; La. C.C. art. 1612. Every legacy, however, not included in the definition of a universal legacy and a legacy under universal title is a particular legacy. Id.; La. C.C. art. 1625. In this case, the testament includes particular legacies to Janice Rich Sturde-vant, Leo Guenther, Elsa Quintanilla, and Leny Boudreaux. It also includes a general/residual legacy to Touro Synagogue. The remaining question, |18then, is how must we treat the disposition to Mrs. Ro-senthal for only that portion reserved to her as provided under the laws of the State of Louisiana.

The enactment of La. C.C. art. 1495 in effect at the time of Mrs. Linder’s death considered all children forced heirs. Pratt, supra, at 312. And in Linder I, supra, this Court recognized Mrs. Rosen-thal as such. Therefore, Mrs. Rosenthal’s forced portion is one-fourth of her mother’s estate. Id. So, the seminal question is how should the forced portion be satisfied? The trial court determined that it should be paid from the balance of the funds available. Mrs. Rosenthal contends, on the other hand, that her forced portion must be satisfied from all legacies pursuant to La. C.C. art. 1511.

At the time of the decedent’s death, La. C.C. art. 1511 provided:

[w]hen the dispositions mortis causa exceed either the disposable quantum or the portion of that quantum that remains after the deduction of the value of the donations inter vivos, the reduction shall be made pro rata, without any distinction between universal dispositions and particular ones.

Succession of Trahant, 226 La. 653, 76 So.2d 919, 921 (1954).

Thus, pursuant to this article, universal or particular legatees are subject to a pro rata reduction only when dispositions mor-tis causa exceed the disposable portion or balance of the estate. In this case, the monetary dispositions made in the testament include a $2,000.00 cash bequest to Janice Sturdevant and the oil and gas royalties to Mr. Guenther, which we have determined have a date of death value of $2,949.00.

The enactment of La. C.C. art. 1502 in effect at the time of Mrs. Linder’s death provided, “any disposal of property, whether inter vivos or mortis causa, exceeding the quantum of which a person may legally dispose to the prejudice of the forced heirs, is not null, but only reducible to that quantum.” Succession of Trahant, 226 La. 653, 76 So.2d 919 (1954). In this case, the net estate is $41,870.00, the |13forced portion is $10,476.72, and the disposable portion is $31,403.14. As depicted, there is no impingement on Mrs. Rosenthal’s forced portion and no requirement that the particular legacies be reduced. Nevertheless, Mrs. Rosenthal contends that Touro Synagogue should not singularly bear the burden of satisfying her legitime. Rather, she contends that all legacies under the testament should be reduced.

Granted, the practical application of the trial court’s judgment will, in fact, “reduce” the bequest to Touro Synagogue. However, Touro Synagogue is, in fact, a residuary/universal legatee who is only entitled to the balance of the estate. “The residuary, or universal legatee, receives nothing, except what is left, after the payment of the debts and charges of the succession, the discharge of the particular legacies, and the contributions for the legi-time.” Succession of Peters, 192 La. 744, 189 So. 122, 123 (1939) (emphasis added). So, in essence, Touro Synagogue, does not necessarily bear the burden of satisfying the forced portion, because, by law, as a universal legatee, it is only entitled to what remains after the payments of debts and charges and the satisfaction of particular legatees and the legitime. Id.

Therefore, we find that the trial court did not err in failing to reduce the particular legacies or by finding that Mrs. Ro-senthal’s legitime be satisfied from the balance of the estate. Therefore, these assignments of error are without merit.

Eleventh Assignment of Error

Mrs. Rosenthal contends that the trial court erred in applying La. C.C. art. 1512 to find that the decedent expressed a preference that an undisclosed forced heir be paid from the balance of the estate. This assignment of error, however, is rendered moot in light of our holding above that Mrs. Rosenthal’s legitime can be satisfied from the balance of the estate.

| MSeventh and Eight Assignments of Error

Rosenthal argues that as a forced heir, her legitime should consist of an undivided one-fourth interest in her mother’s estate, and further asserts that her one-fourth legitime should be satisfied, in part, by rights to the mineral interests that Mrs. Linder bequeathed to Mr. Guenther, the particular legatee. Thus, she essentially construes “undivided interest” as the undivided asset rather than the undivided value of the asset.

At the time of Mrs. Linder’s death, La. C.C. art. 1493 provided, “[d]onations inter vivos or mortis causa cannot exceed three-fourths if the property of the disposer, if he leaves, at his decease, one child; and one-half, if he leaves two or more children.” In addition, La. C.C. art. 1505 provides:

A. To determine the reduction to which the donations, either inter vivos or mor-tis causa, are liable, an aggregate is formed of all the property belonging to the donor or the testator at the time of his death; to that is fictitiously added the property disposed of by donation inter vivos, according to its value at the time of the donor’s decease, in the state in which it was at the period of the donation.
B. The sums due by the estate are deducted from this aggregate amount and the disposable quantum is calculated on the balance, taking into consideration the number of forced heirs.

Mrs. Rosenthal claims that pursuant to La. C.C. art. 1493, La. C.C. art. 1505 requires the court to determine the aggregate assets, and to then give her an undivided one-fourth of those particular assets, rather than the value of the assets. Yet, academic and judicial interpretation of the calculation of forced portions as it relates to valuation of the estate does not support this argument. And there is nothing presented in Mrs. Rosenthal’s argument that the calculation of a legitime must consist of the assets themselves, rather than the value of the assets.

Li The forced portion is part of the decedent’s overall estate. The estate is taken as a whole in order to ascertain the value that a forced heir is entitled to — this does not mean that every asset in the estate is itself subject to the forced heir’s legitime. Rather, the value of all assets should be considered so that the forced portion can be calculated. La. C.C. art. 1505 supports this conclusion. Specifically, the language of subsection (B) states that the disposable quantum that is calculated, after consideration of any forced heirs, uses the “aggregate amount ” as the bases for the calculation, rather than the aggregate assets. La. C.C. art. 1505. Thus, Mrs. Rosenthal’s contention that she is entitled to one-fourth of Mr. Guenther’s particular legacy, even though her portion may be satisfied from the residuary is without merit.

The Louisiana Supreme Court explained in Succession of Coste, 9 So. 62 (La.1890) that particular legatees are never liable to contribute to the payment of debts or to satisfy the legitime portion of the forced heir when there are other assets out of which said charges can be satisfied. There can be no residuum for residuary legatees or legal heirs until the particular legacies are fully acquitted. Id. Since Mrs. Ro-senthal’s forced portion can be satisfied without disturbing the particular legatee’s bequeathal, namely Mr. Guenther’s mineral interests, there is no bases to disturb his bequest. Therefore, Mrs. Rosenthal’s contention that she is entitled to one-fourth of the oil and gas interests is without merit. And because we have already determined that her legitime does not consist of Mr. Guenther’s particular legacy, we further find that she is not entitled to any past or future royalties produced from his specific bequest.

1twelfth Assignment of Error

Next, Mrs. Rosenthal contends that the trial court erred by failing to award her interest from the day she opposed the disinherison and demanded her legitime.

In Succession of Dittmar, 493 So.2d 221, 224 we held:

[B]ecause legal interest was not demanded in Clifford Quinn’s ‘Rule to Show Cause,’ Clifford cannot on appeal raise this issue for the first time and receive legal interest on his portion of his father’s succession. Louisiana Code of Civil Procedure article 1921. Louisiana Code of Civil Procedure article 1921 provides:
The court shall award interest in the judgment as prayed for or as provided by law. (emphasis in original)

Likewise, in this case, Mrs. Rosenthal’s opposition to the homologation does not include a request for interest, and she cannot raise this issue for the first time on appeal. This assignment of error is without merit.

Thirteenth and Fourteenth Assignments of Error

Finally, Mrs. Rosenthal contends that Mr. Guenther breached his fiduciary duty by not knowing what his fiduciary duty entailed, by placing his interest as a legatee above hers, and by failing to return over $600,000 in mineral royalties once this Court vacated the judgment of possession in Linder TV, supra.

Mr. Guenther testified that the June 13, 2005 descriptive list initially valued the oil and gas interests on the date of death at $2,200.00. He explained, however, that the oil and gas interests were not formally appraised. Instead, he relied on an informal, unwritten opinion of one of his clients, Mr. Richard Price, a geologist, whose family owned oil companies. Mr. Guenther explained that he did not have the Succession’s oil and gas interests formally appraised because Mr. Price indicated that it would be costly to do so — although Mr. Price did not specify how^great the expense would be. Nevertheless, Mr. Guen-ther testified that the other estate properties were formally appraised.

Mr. Guenther testified that once the trial court rendered the judgment of possession on June 18, 2007, his attorney advised him to close out the succession account and take possession of the funds. He then transferred approximately $600,000 of those funds to himself. He explained that he retained those funds after this Court vacated the judgment of possession in Lin-der, TV, explaining that his counsel instructed him to retain the money because the Succession owed him “a lot more money than that.”

During cross-examination, Mrs. Rosen-thal’s counsel brought Mr. Guenther’s attention to the tableau of distribution that was filed into the record. The tableau depicts receipts of oil and gas royalties from December 1, 1994 through October 31, 2004. The Succession’s bank records, however, reflect that the estate received at least $80,000.00 more in additional royalties in 2005 and 2006. Mr. Guenther, however, could not explain why the deposits were not reflected on the tableau.

The trial court ultimately found that Mr. Guenther had not breached his fiduciary duty. However, in its reasons for judgment it stated, “... this Court does recognize evidence indicating that Mr. Guenther failed to update the Final Tableau to note additional royalties received after October 2004, including those funds held in the registry of the court in Point Coupee Parish” and “Mr. Guenther must return all royalties he received as a result of the vacated Judgment of Possession to the succession accounts until the final Judgment of Possession is entered.... ”

A succession representative serves in a fiduciary capacity. Succession of Mangle, 452 So.2d 197, 200 (La.App. 3 Cir.1984); La. C.C.P. art. 3191. (citations omitted). He owes a duty to legatees, creditors, and heirs and may not place their own ^interest before the succession interest. Id. The Third Circuit further elaborated on the succession representative’s fiduciary duty in Succession of Songne, supra, at 559 as follows:

[A] succession representative is a fiduciary of the succession and has the duty of collecting, preserving, and managing the property of the succession in accordance with law. La.Code Civ.P. art. 3191. She must act, at all times, as a prudent administrator, and she is personally responsible for all damages resulting from her failure to so act. Id. This fiduciary duty should be read expansively to pervade all of the representative’s operations. La.Code Civ.P. art. 3191, comment (a). The court may remove a succession representative who has mismanaged the estate or who has failed to perform any duty imposed by law. La.Code Civ.P. art. 3182.
Among the specific duties of the succession representative is the duty to collect all succession funds and deposit them in a succession bank account as soon as they are received. La.Code Civ.P. art. 3222. The representative may be dismissed from office for failure to comply with this duty. Id. It is no defense under this article that the representative honestly believes that she has a claim to the funds not deposited as required; she must first deposit succession funds in a succession account, and only then may she properly assert her claim thereto. Succession of Dykes, 258 So.2d 606 (La.App. 1 Cir.), writs denied, 261 La. 533, 260 So.2d 319, 320 (1972).

Fiduciaries owe the highest standard of care to collect, preserve, and manage an estate’s property. And as the court in Songne stated, they also owe a duty to the legatees. Although there is no prohibition against a legatee serving as an estate’s executor, this dual role often times presents a conflict of interest — as it does here. We note, however, that a mere conflict of interest in itself does not warrant removal. It is “when this conflict becomes such that it is actively tainting the administration of the succession, [that] removal of the executor becomes necessary.” Mangle, supra, at 200.

We first note that, contrary to Mrs. Rosenthal’s assertion, Mr. Guenther does know what his fiduciary duty entails. He testified that as executor, he was responsible for collecting, maintaining, and protecting the Succession’s assets. Mrs. Ro-senthal maintains, however, that Mr. Guenther breached his fiduciary duty [ ¾⅛/-deciding to pay her legitime in cash rather than with a percentage of the royalties. Yet, we have already determined that Mrs. Rosenthal is not entitled to Mr. Guenther’s legacy or any fruits thereof; therefore, there was no breach in this regard. Although this Court is especially concerned with Mr. Guenther’s failure to return the oil and gas royalties once we vacated the judgment of possession, we do not find that this amounts to a breach of his fiduciary duty. Compare, Mangle, supra, (the executor failed to notify forced heirs concerning their entitlement to the forced portion); Langendorf v. Admin. Of Tulane Ed. Fund, 361 So.2d 905 (La.App. 4 Cir.1978) (executor devised a scheme to purchase estate property, that belonged to heirs, for himself).

The record supports the conclusion that Mr. Guenther has served as a prudent administrator of the Succession — he has collected, preserved and managed the estate’s assets. Although Mr. Guenther failed to update the final tableau with the royalty payments received after 2004, the Succession’s bank records reflect that the royalty checks were, in fact, deposited into the bank account. There is no evidence that Mr. Guenther’s actions have actively tainted the administration of the succession. We, therefore, find that the trial court did not err in finding that Mr. Guen-ther did not breach his fiduciary duty.

Assignments of Error Fifteen, Sixteen, and Seventeen

Mrs. Rosenthal argues alternatively that all legacies in the testament lapsed due to the estate’s insolvency. She contends that the estate would have been insolvent if the trial court had not allowed Mr. Guenther to pay certain expenses related to the Succession. We are unable, however, to find any authority which prohibits a legatee from electing to pay expenses from his/her legacy. Therefore, we find no basis to disturb the trial court’s judgment which found the estate to be solvent on the date of death.

12f,Based on the foregoing, the trial court judgment is affirmed. Mr. Guenther is ordered to return the money he removed from the Succession account until a valid judgment of possession is rendered. He is further ordered to update the final tableau of distribution to reflect all funds the Succession has received.

AFFIRMED; REMAND FOR PROCEEDINGS CONSISTENT WITH THIS OPINION

EDWARDS, C.J., dissents.

EDWARDS, C.J.,

dissents.

|,I dissent from the opinion in this matter because I believe that Mr. Leo Guen-ther breached his fiduciary duty to Mrs. Rosenthal and that his conflict of interest and mismanagement was sufficient to warrant his removal as succession representative. Therefore, I find the trial court erred in relying on the appraisals presented by Mr. Guenther’s expert witness.

I agree with the majority opinion that a legatee may serve as the executor of the estate and that a mere conflict of interest of itself does not warrant removal in the absence of mismanagement. However, I also note that an executor of an estate has a fiduciary duty as succession representative with respect to the succession, and shall have the duty of collecting, preserving, and managing the property of the succession in accordance with law, and must act as a prudent administrator.

The testament giving Mr. Guenther the mineral rights at issue and naming Mr. Guenther, the decedent’s CPA, as executor was filed for probate on December 6, 1994. Mr. Guenther’s second action was to file a rule to show cause why Mrs. Rosenthal should not suffer disinheritance. That was denied by the trial court because, at the time of the death, Mrs. Rosenthal was a forced heir. After the testament was upheld as to form, Mr. Guenther filed the Petition for Final Tableau of Distribution, alleging that Mrs. Rosenthal was not entitled to collect any amounts as forced heir because the estate’s liabilities exceeded its assets. The petition valued decedent’s mineral interests at $2,000. The liabilities included |g$131,065.89 for bookkeeping, legal, and executor costs. The petition also stated that Mrs. Rosenthal should not receive any distribution because she failed to make a timely claim for reduction of excessive donations.

When Mrs. Rosenthal filed an opposition to that final tableau asserting that the mineral interests had reached the value of $261,528, Mr. Guenther again tried to prohibit Mrs. Rosenthal from receiving her forced portion based on her alleged failure to timely file a motion to reduce the excessive donation. That motion was denied by the trial court, and Mr. Guenther sought review by this Court. Our response was to deny his writ application.

Mr. Guenther increased the value of the mineral interests to $2,949 and filed a Motion and Order to Resume the Hearing on the Opposition to Final Tableau of Distribution. The trial court rendered judgment, accepting the tableau and finding that Mrs. Rosenthal’s portion of the estate was valued at $10,892, subject to her pro-rata share of expenses of the estate. The trial court further authorized Mr. Guen-ther to distribute the funds of the estate as set forth in the final tableau. On a subsequent motion filed by Mr. Guenther, the trial court put Mr. Guenther in possession of “all oil, gas, sulfur and other mineral interest held by the Succession of Rosalie Bigman Linder, pertaining to a certain tract of land situated in Pointe Coupe Parish, Louisiana.”

Because these judgments were rendered by the trial court ex parte, after an acknowledgment by the court that there was no return of service on Mrs. Rosenthal, this Court vacated and set aside these judgments as absolute nullities.

In the matter before us in this appeal, it seems clear that Mr. Guenther is acting in his own self-interest and is in direct conflict to the interests of Mrs. Rosenthal. I believe hundreds of thousands of dollars that Mr. Guenther stands to |scoIlect in this succession creates a serious conflict of interest. I also find that his actions, as the succession representative, constitute mismanagement to the extent that, when combined with the conflict of interest, are sufficient to remove him as the succession representative. Further, for these reasons, I find the trial court erred in its evaluation of the mineral rights.

      . "The price that a seller is willing to accept and a buyer is willing to pay on the open market and in an arm's-length transaction.” Black’s Law Dictionary 1549 (7th ed.1999).

      . Kathryn V. Lorio, Louisiana Civil Law Treatise: Successions and Donations § 10:7 (2d ed.2009).

      . The Louisiana Supreme Court further crystallized the point in Wilkins v. Nelson, 155 La. 807, 813-814, 99 So. 607 (La.1924), when it stated, "[t]he price [of oil and gas] may be at the very lowest today and by ‘leaps and bounds' reach the very peak of prices tomorrow, dependent on the production or nonpro-duction of oil and gas in the neighboring territory” (emphasis added). See also Cascio v. Twin Cities Dev., LLC., 45,634, p. 5 (La.App. 2 Cir. 9/22/10), 48 So.3d 341.

      . Original Brief of Appellant at 13, Succession of Linder, No. 11-0633 (7/8/11).

      . The active mass includes the aggregate of all property belonging to the testator at the time of his death, including inter vivos donations made within three years of the date of death. See La. C.C. art. 1505.

      . La. C.C. art. 1606 was revised by Acts 1997, No. 1421 § 1 and is currently restated in La. C.C. art. 1585.

      . La. C.C. art. 1612 was revised by Acts 1997, No. 1421 § 1 and is currently restated in La. C.C. art. 1586. It is now referred to as a "general legacy.”

      .La. C.C. art. 1625 was revised by Acts 1997, No. 1421 § 1 and is currently restated in La. C.C. art. 1587.

      . Edward E. Chase, Jr. Louisiana Civil Law Treatise: Trusts, § 11:1 (2d ed.2009).

      . Mr. Guenther testified that estate's jewelry, movables, and immovable were formally appraised.

      . La. C.C.P. art. 3191.

      . Subsequently, Mr. Guenther agreed to personally pay these costs.

      . Succession of Linder, 08-394 (La.App. 5 Cir. 10/14/08), 994 So.2d 148, 150.

        . Linder, supra.


source: Caselaw Access Project

author: GASKINS, J.

license: Public Domain

text:
    Nakisha CREDIT and Kevin Credit, Sr., Individually and on Behalf of their Minor Children, Adrienne Breana Howard, Kaylin Howard and Kevin Credit, Jr., Plaintiffs-Appellants v. RICHLAND PARISH SCHOOL BOARD, State Farm Mutual Insurance Company, Cathy Stockton, Georgia Ineichen, Larry Wright, Sr., Samuel G. Hesser, Rayville High School, XYZ Duty Teachers, Gail McClain as the Mother of Courtney McClain, Richland Career Center at Archibald, and Amy Doe as the Mother of LeBaron Sledge, Defendants-Appellees.
    No. 46,163-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 23, 2012.
    Eddie Clark & Associates, LLC, by Eddie M. Clark, The Downs Law Firm, APC, by Earl Ross Downs, Jr., for Plaintiffs-Appellants.
    Hammond & Sills by, Neal Lane Johnson, Jr., Monroe, LA, for Defendants-Ap-pellees, Richland Parish School Board, Cathy Stockton, Georgia Ineichen, Larry Wright, Sr., Samuel G. Hesser, Rayville High School, XYZ Duty Teachers, Rich-land Career Center at Archibald.
    Davenport, Files & Kelly, LLP, Monroe, LA, by Martin Shane Craighead, for Defendants-Appellees, Samuel G. Hesser, Richland Parish School Board, and State Farm Mutual Automobile Insurance Company.
    Jones Law Group, by Rosalind D. Jones, La Koshia Reconda Roberts, for Defendant-Appellee, Gail McClain.
    Before GASKINS, DREW and MOORE, JJ.
   GASKINS, J.

1 jThis matter is before us on remand from the Louisiana Supreme Court. For the following reasons, we affirm the trial court judgment finding that the plaintiffs have no cause of action, against certain employees of the Richland Parish School Board arising from the death of Adrienne Breana Howard (“Breana”).

FACTS

Breana had been expelled from Rayville High School because of an ongoing dispute with another student, Courtney McClain (“Courtney”). Breana was attending the Richland Career Center at Archibald. At the close of the day on December 14, 2009, Breana had been dropped off by a school bus at the rear of Rayville High School and began to walk home. Allegedly at the instigation of another student, LeBaron Sledge, Courtney and Breana became involved in a fight on a sidewalk at the rear of Rayville High School near the school bus zone. According to the pleadings, Breana was either pushed by Courtney or fell off the sidewalk and was struck by an oncoming school bus driven by Samuel G. Hesser. Breana died from her injuries. Her younger half-siblings, Kaylin Howard and Kevin Credit, Jr., were on a bus in front of the bus that struck Breana. The bus stopped and the passengers disembarked. Kaylin and Kevin saw Breana’s body.

Nakisha Credit, Breana’s mother, filed suit individually and on behalf of Breana, Kaylin, and Kevin, against the Richland Parish School Board; [2State Farm Automobile Insurance Company, the insurer of the school board; Cathy Stockton, superintendent of the Richland Parish School Board; Georgia Ineichen, principal of Ray-ville High School; Larry Wright, Sr., assistant principal of Rayville High School; Samuel G. Hesser, driver of the bus that struck Breana; Rayville High School; Richland Parish Career Center at Archibald; XYZ duty teachers; Gail McClain, Courtney’s mother; and Amy Doe, LeBar-on Sledge’s mother.

The plaintiffs argued that the defendants were negligent in numerous ways, including the failure to supervise, failure to timely respond to the fight, and failure to adequately staff the bus area with teachers or school personnel. The plaintiffs alleged that Mr. Hesser saw or should have seen the fight and yet continued to operate the bus near the fight without regard to the safety of the children in the school bus zone. According to the plaintiffs, the mother of LeBaron Sledge was liable for her son’s role in instigating the fight and Gail McClain was liable for Courtney’s action in allegedly pushing Breana into the path of the bus.

Various exceptions were filed. This case concerns the exception of no cause of action filed by Cathy Stockton, Georgia In-eichen, Larry Wright, Sr., Samuel G. Hes-ser, and XYZ duty teachers. They asserted that the plaintiffs have no cause of action against school board employees in their individual capacities under La. R.S. 17:439. The statute provides that “Except as otherwise provided in this Section, no person shall have a cause of action against any school employee based on any statement made or | .¡action taken by the school employee provided that the action or statement was within the course and scope of the school employee’s duties as defined by the school board in which the school employee is employed and was within the specific guidelines for school employee behavior as established by that school board.” The statute further provides that a “school employee” means any school employee who has direct contact with students in the course and scope of the school employee’s duties as defined by the school board by which the school employee is employed, and includes but is not limited to school-based administrators, classroom teachers, coaches, librarians, counselors, teachers’ aides, clerical employees, lunchroom workers, custodial workers, school bus drivers, and school bus drivers’ aides. La. R.S. 17:439(B).

After a hearing, the trial court granted the exception of no cause of action as to Cathy Stockton, Georgia Ineichen, Larry Wright, Sr., and XYZ duty teachers, based upon La. R.S. 17:439 and dismissed the plaintiffs’ claims against them. Regarding Mr. Hesser, the school bus driver, the trial court found that La. R.S. 17:439(D) prohibits the plaintiffs from bringing a claim directly against the bus driver in his individual capacity, but they would have a direct action against the bus driver’s insurer to the extent of any insurance. Accordingly, the trial court granted the defendant’s exception of no cause of action as to Mr. Hesser and dismissed the plaintiffs’ claims against him.

The plaintiffs appealed the trial court decision to this court. In our prior opinion, we reversed the trial court judgment in its entirety. In finding |4that the plaintiffs did have a cause of action against Cathy Stockton, Georgia Ineichen, Larry Wright, Sr., and XYZ duty teachers, we reasoned that the legislature, in enacting La. R.S. 17:439(A), created a qualified immunity from liability for school board employees for negligent acts of commission, but not for negligent acts of omission. We noted that La. R.S. 17:416.4(A) provides that, when school employees are sued for damages based upon any “action or statement or the omission of any action or statement by such employee when in the proper course and scope of his duties as defined by the school board employing such employee, then it shall be the obligation of said school board to provide such defendant with a legal defense to such suit including reasonable attorney fees, investigatory costs, and other related expenses [Emphasis supplied].” We observed that La. 17:439(A) precluded a cause of action against a school employee based upon any “statement made or action taken” by the school employee within the course and scope of his or her duties, but the statute did not include the language regarding omissions. We determined that the legislature did not intend to preclude a cause of action against school employees for negligent omissions.

The Louisiana Supreme Court granted the writ application filed by the defendants, Cathy Stockton, Georgia Ineichen, Larry Wright, Sr., and XYZ duty teachers, and Mr. Hesser, objecting to this court’s decision. The supreme court reversed that portion of our opinion finding that the plaintiffs Ifihad a cause of action against Cathy Stockton, Georgia Ineichen, Larry Wright, Sr., and XYZ duty teachers for negligent omissions.

The supreme court stated that La. R.S. 17:439(A) has a threefold requirement which must be met before a school employee may successfully assert a peremptory exception of no cause of action. La. R.S. 17:439(A) requires: (1) the cause of action against any school employee must be based on a statement made or action taken by the school employee; (2) the action or statement must be made within the course and scope of the school employee’s duties as defined by the school board in which the school employee is employed; and (3) the action or statement must be within the specific guidelines for school employee behavior as established by the school board.

The supreme court determined that, in enacting La. R.S. 17:439, the Louisiana legislature did not intend to exclude qualified tort immunity for negligent acts of omission. It found that Louisiana courts have long reasoned that the word “act” or “action” in a statute refers to both acts of commission and acts of omission. The supreme court held that the “statement made or action taken” language in La. R.S. 17:439(A) precludes a cause of action against school employees for both acts of commission and | ¡¡acts of omission committed, as well as statements made, within the course and scope of their duties as defined by the school board and within the specific guidelines for employee behavior established by that school board.

Based upon this reasoning, the supreme court reversed our decision regarding the plaintiffs’ cause of action against Cathy Stockton, Georgia Ineichen, Larry Wright, Sr., and XYZ duty teachers. The supreme court ruled that, because this court found that the plaintiffs had a cause of action against these defendants, we pre-termitted resolving whether the petition adequately stated a cause of action with regard to the remaining elements of La. R.S. 17:439(A) precluding a cause of action against a school employee. The supreme court remanded the matter to this court to consider whether the plaintiffs’ petition sufficiently alleges that the defendants’ statements or actions were not “within the course and scope of the school employee’s duties as defined by the school board in which the school employee is employed” and were not “within the specific guidelines for school employee behavior as established by that school board.”

CAUSE OF ACTION AGAINST SCHOOL EMPLOYEES

The exception of no cause of action questions whether the law extends a remedy to anyone under the factual allegations of the petition. The exception is triable on the face of the petition and each well-pled fact must be accepted as true. White v. St. Elizabeth B.C. Board of Directors, 45,213 (La.App.2d Cir.6/2/10), 37 So.3d 1139. No evidence may be introduced at any time to support or controvert the objection that the petition fails to state a cause of action. La. C.C.P. art. 931.

17Piscussion

In the pleadings filed by the plaintiffs, they allege that Cathy Stockton, Georgia Ineichen, Larry Wright, Sr., and XYZ duty teachers failed to use ordinaiy and necessary care by various acts and omissions. Among those acts and omissions in this case pertaining to these particular defendants, the plaintiffs allege that the school employees were negligent in the following ways:

• In failing to supervise the children
• In failing to timely respond to the fight
• In failing to exercise reasonable care
• In failing to intervene and/or prevent the fight
• In failing to adequately staff the bus area with teachers and/or school personnel
• In failing to disrupt and/or deter the fight with the presence of teachers and/or school personnel
• In failing to have teachers on duty at designated duty areas consistent with the teacher duty schedule
• In failing to provide a safe environment on the campus
• I failing to see that which should have been seen
• In allowing the students to continue fighting uninterrupted
• In failure of the appropriate teachers to be on duty at the scheduled time and in accordance with their duty assignments
• In failing to call emergency personnel promptly
• In breaching any and all duties owed to the decedent
• Inadequate supervision
• In allowing substantial harm to befall the decedent
Is* In failing to provide competent supervision
• Failure of teachers and school personnel to be attentive to what was going on in the bus area
• In failure of the school board and school to properly train its teachers, staff, and/or faculty members
• In failure of teachers to adhere to school board policy
• In failure to protect the decedent from injury and death
• Negligent and/or inadequate supervision
• In failure to properly monitor the school campus
• In providing little to absolutely no intervention whatsoever prior to the fight
• In failure to have designated bus safety areas
• In failure to provide the appropriate . degree of supervision under the circumstances
• In failure to have marked bus safety zones
• In failure to have barricades in the bus area
• In failure to adhere to school guidelines
• In failure of teachers to be on duty to possibly break up the fight

The plaintiffs also alleged that the XYZ duty teachers were working in the course and scope of their employment with the Richland Parish School Board.

These allegations fall directly within the limitation of liability to school employees afforded by La. R.S. 17:439. The allegations raised by the plaintiffs concern the actions or omissions by school employees arising within the course and scope of the school employees’ duties and within the guidelines for school employee behavior. The plaintiffs have not alleged [gthat any actions by these defendants occurred outside of their duties connected with employment with the school board for the care and regulation of the behavior of students.

Accordingly, we affirm the trial court judgment finding that, under La. R.S. 17:439, the plaintiffs have no cause of action against Cathy Stockton, Georgia Inei-chen, Larry Wright, Sr., and XYZ duty teachers, in their individual capacities. Further, we find that the grounds for the objection cannot be removed. Therefore, the claim against these parties in their individual capacities is dismissed. La. C.C.P. art. 934! The plaintiffs’ cause of action in this matter, asserting alleged breaches of duty by these school employees to the decedent, lies with the Richland Parish School Board.

CONCLUSION

For the reasons stated above, we affirm that portion of the trial court judgment finding that the plaintiffs, Nakisha Credit, individually and on behalf of Adrienne Breana Howard, Kaylin Howard, and Kevin Credit, Jr., have no cause of action against Cathy Stockton, Georgia Ineichen, Larry Wright, Sr., and XYZ duty teachers, for allegation that their conduct contributed to the death of Adrienne Breana Howard. The plaintiffs have a cause of action in this regard against the Richland Parish School Board. Costs in this court are assessed to the plaintiffs. The matter is remanded to the trial court for further proceedings.

AFFIRMED; REMANDED FOR FURTHER PROCEEDINGS.

      . See Credit v. Richland Parish School Board, 2011-1003 (La.3/13/12), 85 So.3d 669.

      . A full recitation of the facts pled in this case is contained in our prior opinion in this matter. See Credit v. Richland Parish School Board, 46,163 (La.App.2d Cir.4/13/11), 61 So.3d 861.

      .The plaintiffs voluntarily dismissed their claims against Rayville High School and the Richland Parish Career Center in Archibald, in their individual capacities, without prejudice.

      . The supreme court affirmed that portion of our opinion in which we found that the plaintiffs did have a cause of action against Mr. Hesser. We reversed the trial court ruling regarding the cause of action against Samuel Hesser, finding that the clear wording of La. R.S. 17:439(D) provides that an action can be brought directly against Mr. Hesser for his negligence in operating the school bus to the extent his liability is covered by insurance or self-insurance. La. R.S. 17:439(D) provides: "The provisions of this Section shall not apply to the negligence of any school employee operating a motor vehicle, to the extent that liability for such negligence is covered by insurance or self-insurance.” The supreme court found that this court was correct in holding that the plaintiffs have a direct cause of action against Samuel G. Hesser pursuant to La. R.S. 17:439(D), to the extent liability for his alleged negligent actions in operating the motor vehicle is covered by insurance or self-insurance. Therefore, this issue is not before us on remand.


author: SEXTON, Judge Pro Tern. STEWART, J.,

text:
    Edgar B. HARRELL, et al., Plaintiff-Appellants v. CITY OF SHREVEPORT, et al., Defendant-Appellees.
    No. 47,011-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 23, 2012.

      Troy E. Bain, Shreveport, LA, for Appellants.
    The Malone Law Firm, L.L.C., Shreveport, LA, by Dannye W. Malone, Joseph W. Greenwald, Jr., for Appellees.
    Before WILLIAMS, STEWART, DREW, LOLLEY & SEXTON (Pro Tempore), JJ.
   SEXTON, Judge Pro Tern.

| plaintiffs, Edgar and Nancy Harrell, appeal the trial judge’s ruling that Mr. Harrell was 1/3 at fault and that Cpl. Ron Herkey was 2/3 at fault for an automobile accident which resulted in injury to Mr. Harrell. The Harrells were awarded damages subject to the above apportionment of fault. For the reasons stated herein, we affirm.

FACTS

The accident at issue occurred at the intersection of Millicent Way and Youree Drive in Shreveport. At this point, eastbound Millicent Way is the main access to LSU-S. It was just after midnight and Mr. Harrell was leaving LSU-S after a computer lab class. Therefore, Mr. Harrell was traveling away from LSU-S (west) and was stopped at the red light on Millicent Way where it intersects with Youree Drive. When the light turned green, he proceeded into the intersection, crossing the northbound lanes of Youree Drive and the center area. As he entered the southbound lanes, he was struck by a police vehicle driven by Cpl. Herkey responding to an emergency call. There is no dispute that Cpl. Herkey traveled through the red light and was going 60-65 mph in the 45 mph speed zone. Cpl. Her-key did not slow down or stop when passing through the intersection and there were no tire tread marks on the pavement indicating that he applied his brakes prior to impact. Mr. Harrell maintains that he did not see or hear the police vehicle before impact; rather, when the light turned green, he slowly proceeded through the intersection and did not “look around” before crossing the intersection.

Cpl. Herkey testified that he had his lights and sirens on, although the trial judge found that his sirens were not activated. The two witnesses who |2were near Mr. Harrell at the time of the accident testified that they saw the patrol ear approaching and the lights were on, but the siren was not sounding.

One of those witnesses was a Ms. Olds, who had been in the computer lab with Mr. Harrell, apparently working on the same project. The lab closed at midnight and Mr. Harrell had offered to walk Ms. Olds to her ear. Ms. Olds was directly behind Mr. Harrell in leaving the lab. Her initial statement to the police was that the officer had activated both lights and siren. Ms. Olds went to the police station the day after the accident and affirmed in a second statement that the lights were on, but affirmatively stated that there was no siren and that the officer did not brake or slow. At trial, Ms. Olds testified that the light was red as she and Mr. Harrell approached it. They stopped only for a second and then the light was immediately green. She stated that Mr. Harrell hesitated and she had the affirmative thought, “what are you doing?” She further testified that it took him “a minute” to proceed.

A Mr. Dennen, who had apparently just gotten off work at Thrifty Liquor, was stopped at the stop light at Millicent and Youree Drive facing north. He testified that he saw the police officer come from “a good ways away” and mentioned that the officer was near Wendy’s when he saw him. His statement to the police after the accident, and his testimony, were that he heard no siren, but that the lights on the police vehicle were flashing. Mr. Dennen further testified that he saw the officer try to move to avoid hitting Mr. Harrell’s vehicle. Finally, Mr. Dennen testified that he saw no brake lights on Mr. Harrell’s vehicle.

Cpl. Herkey testified that, while they are taught when an impact is imminent to take another car head on as the other vehicle is designed to be |ssafest in that fashion, he “racked it,” or instinctively turned the wheel. The right and left wheels of the police vehicle were in two separate lanes and the pictures clearly show that Mr. Harrell’s vehicle was mostly sideswiped. The officer testified that his car had antilock brakes, which are not supposed to skid.

As previously stated, the trial judge found that Cpl. Herkey was negligent (2/3) because his siren was not activated (the judge accepted the testimony of the two driver witnesses in this regard) and he did not slow at all in approaching the intersection. The judge further found that Mr. Harrell was comparatively negligent (1/3) because he should have been aware of the approaching patrol car. The trial judge stated that, since Mr. Harrell had been working late, it was a “reasonable inference ... that Mr. Harrell was, more likely than not, fatigued as he left the university.” Mr. Harrell, therefore, relied solely on the traffic light and did not look to the left or right before entering the intersection.

This appeal by the Harrells ensued. The sole issue is apportionment of fault.

DISCUSSION

A trial court is required to compare the relative fault of the parties in assessing liability. In allocating fault, a trial court must consider the nature of each party’s conduct and the extent of the causal relationship between that conduct and damages. McCullin v. U.S. Agencies Casualty Ins. Co., 34,661 (La.App.2d Cir.5/9/01), 786 So.2d 269. Factors which may influence the degree of fault assigned to each party include: (1) the conduct resulted from inadvertence or involved an awareness of danger; (2) how great a risk the | ¿conduct created; (3) the significance of what the actors sought by the conduct; (4) the capacities of the actors, whether superior or inferior; and (5) any extenuating circumstances which might require the actors to proceed in haste, without proper forethought. Watson v. State Fam Fire & Casualty Ins. Co., 469 So.2d 967 (La.1985); Bennett v. Louisiana Farm Bureau Cas. Ins. Co., 43,216 (La.App.2d Cir.4/30/08), 983 So.2d 966. The trial court’s apportionment of fault is a factual determination subject to the manifest error standard of review. Williams v. City of Monroe, 27,065 (La.App.2d Cir.7/3/95), 658 So.2d 820, writs denied, 95-1998, 95-2017 (La.12/15/95), 664 So.2d 451, 452.

A motorist’s duty of care includes the duty to keep his vehicle under control and to maintain a proper lookout for hazards. Williams, supra. A motorist must use such diligence and care in the operation of his vehicle as is commensurate with the circumstances. Edwards v. Horstman, 96-1403 (La.2/25/97), 687 So.2d 1007.

In addition, motorists have a duty to yield the right-of-way to an emergency vehicle when the motorist observes or hears, or under the circumstances should have observed or heard, the audible warning and visual warnings of such a vehicle. Butcher v. City of Monroe, 31,932 (La.App.2d Cir.5/5/99), 737 So.2d 189, writ denied, 99-1608 (La.9/17/99), 747 So.2d 566.

In the case sub judice, Cpl. Herkey was traveling at a relatively high rate of speed because he had received a radio call from a reserve deputy that he heard a woman scream “help me” twice and had been unable to locate her and |sneeded patrol assistance. Even so, there is no dispute that Cpl. Herkey was negligent in his failure to slow down as he approached the intersection, and, therefore, was partially at fault in causing the accident. The question here is whether the trial court was clearly wrong in assessing 1/3 of the fault for the accident to Mr. Harrell. Mr. Harrell is 61 years old, suffers from diabetes and, obviously, had been working in a computer lab for a good portion of the night. He stopped at a red light for longer than he needed to, such that the driver behind him, Ms. Olds, wondered what he was doing. Moreover, we note that, at the point of impact, Youree Drive is a wide, modern street with a very wide median. Mr. Harrell testified that did not “look around” before he entered the intersection and he never saw the police car until it hit him. Mr. Harrell argues that there is no evidence that he was fatigued when he chose to enter the intersection. However, we find that, even if he was not tired, he was extremely inattentive at the least, as borne out by the physical facts. Accordingly, we cannot say that the trial court was clearly wrong in its assessment to Mr. Harrell of 1/3 of the fault.

CONCLUSION

For the foregoing reasons, the judgment of the trial court assessing 1/3 of the fault for the accident to Plaintiff Edgar B. Harrell and 2/3 of the fault to Cpl. Ron Her-key is affirmed at Plaintiffs’ cost.

AFFIRMED.

STEWART, J., dissents and assigns written reasons.

WILLIAMS, J., dissents for the reasons assigned by STEWART, J.

STEWART, J.,

dissenting.

Li respectfully dissent regarding the sole issue of the allocation of fault.

The driver of an emergency vehicle is accorded particular driving privileges when responding to an emergency call. La. R.S. 32:24 A. These privileges include exceeding the maximum speed limits “so long as he does not endanger life or property.” La. R.S. 32:24(B)(3). La. R.S. 32:24(B)(2) states in pertinent part:

B. The driver or rider of an unauthorized emergency vehicle may do any of the following:
| ⅞(2) Proceed past a red or stop signal or stop sign, but only after slowing down or stopping as may be necessary for safe operation. (Emphasis added.)

These special privileges do not “relieve the driver of an authorized vehicle from the duty to drive with due regard for the safety of all persons, nor shall such provision protect the driver from the consequences of his reckless disregard for the safety of others.” La. R.S. 32:24(D).

The duty to yield the right of way to an emergency vehicle arises only when a motorist observes or hears, or under the circumstances should have observed or heard, the audible and visual warnings of such a vehicle. Butcher v. City of Monroe, 31,932 (La.App. 2 Cir. 5/5/99), 737 So.2d 189, writ denied, 99-1608 (La.9/17/99), 747 So.2d 566.

At trial, Officer Herkey testified that his siren was activated. However, two independent witnesses to the accident testified that his siren was not activated, and the trial court found that the testimony of these two witnesses compelling and accepted them. I recognize that Officer Herkey had his lights on. However, considering the fact that the accident occurred shortly after midnight, these visual lights alone were not sufficient to warn Mr. Harrell of Officer Herkey’s patrol unit’s entrance into the intersection. Further, the lack of skid marks from Officer Herkey’s patrol unit strongly suggests that he did not slow down or attempt to stop his patrol unit as he was approaching the intersection. It is clear that Officer Herkey displayed a reckless disregard for the safety of others in this incident. Officer Herkey should have been held solely at fault in causing this accident.

Consequently, I must respectfully dissent.