author: PETERS, J.

text:
    Sheila Gail Romero COMEAUX v. Douglas Julien COMEAUX.
    No. 2008-1330.
    Court of Appeal of Louisiana, Third Circuit.
    April 1, 2009.

      Lee W. Boyer, Lynsay M. Fontenot Stockwell, Sievert, Viccellio, Clements & Shaddock, L.L.P., Lake Charles, LA, for Plaintiff/Appellee, Sheila Gail Romero Co-meaux.
    Alvis J. Roche, Attorney at Law, Lake Charles, LA, for Defendant/Appellant, Douglas Julien Comeaux.
    Court composed of OSWALD A. DECUIR, JIMMIE C. PETERS, and MARC T. AMY, Judges.
   PETERS, J.

| j Douglas Julien Comeaux appeals a portion of the trial court judgment partitioning the community of acquets and gains previously existing between himself and his former wife, Sheila Gail Romero Co-meaux, wherein he was ordered to pay her an equalizing payment of $35,965.87. For the following reasons, we amend the trial court judgment and affirm as amended.

DISCUSSION OF THE RECORD

Sheila Gail Romero Comeaux (Sheila) and Douglas Julien Comeaux (Douglas) were married on December 7, 1996, and physically separated in September of 2005. In her October 12, 2005 petition for a divorce under La.Civ.Code art. 102, Sheila sought, among other relief, a judicial partition of the community of acquets and gains previously existing between her and her husband. The matter went to trial on the partition issue on March 14, 2007.

Prior to trial, the parties had agreed upon the classification and value of most of them assets. Thus, the primary issue facing the trial court was the status of the social security benefits Douglas had earned during the marriage. After completion of the evidence phase of the trial, the trial court informed the litigants that it would appoint an appraiser to assess the value of the property still in dispute, allowed the attorneys to address the social security issue through briefs to the court, and took the remaining matters under advisement. After receiving the report of the court-appointed appraiser as well as the briefs of the attorneys, the trial court issued written reasons for judgment on June 2, 2008.

|2In its written reasons for judgment, the trial court recognized that the value of the social security benefits Douglas earned during the marriage is not community property, noting that “the Supremacy Clause of the United States Constitution preempts classification of social security benefits under the Louisiana community property laws.” However, the trial court also noted the discretion afforded it by La.R.S. 9:2801.1 to award a spouse community property equal in value to social security benefits that cannot be considered as community property.

On the same day it released its reasons for judgment, the trial court executed a judgment wherein it assigned the various community assets and liabilities to each party. The judgment first noted that the social security benefits Douglas earned during the marriage had a value of $42,586.00 and expressed the trial court’s intention to use its discretion, afforded by La.R.S. 9:2801.1, “to equalize an unequal net distribution,” stating that it would do so by awarding Sheila the couple’s home. Next, the judgment awarded Sheila community assets totaling $97,595.00, and awarded Douglas community assets totaling $35,709.73. It then assigned $91,529.21 in community debts to Sheila and $31,171.32 in community debts to Douglas, leaving Sheila with a net community property recovery of $6,065.79 and Douglas with a net community property recovery of $4,538.41. The judgment also recognized that Sheila was entitled to reimbursement for one-half of the $21,224.48 she had paid on community obligations, or $10,612.24. The trial court judgment awarded Sheila | san equalizing payment of $35,965.87 to balance the assets and liabilities allotted to both after taking into consideration Douglas’ social security benefits, as allowed by La.R.S. 9:2801.1.

Douglas has appealed this judgment, and his nine assignments of error on appeal can be condensed into four issues:

1) Did the trial court err in awarding Sheila community property equal in value to the social security benefits earned by Douglas during the marriage;
2) Did the trial court err in valuing the social security benefits Douglas earned during the marriage at $42,586.00;
3) Did the trial court err in stating that the total value of the guns awarded to Douglas was $1,145.00; and
4) Did the trial court err in ordering Douglas to pay Sheila an equalizing payment of $35,965.87?

OPINION

Award of community property equal in value to social security benefits

The determination whether a former spouse’s social security benefits are community property is preempted by federal law. U.S. Const. art. VI, cl. 2; 42 U.S.C. § 407 (2002); and Young v. Young, 06-77 (La.App. 3 Cir. 5/31/06), 931 So.2d 541. Under federal law, Douglas’ social security benefits are his separate property because Sheila and Douglas were married fewer than ten years before they divorced. 20 C.F.R. § 404.331(a)(2). However, La. R.S. 9:2801.1 provides:

When federal law or the provisions of a statutory pension or retirement plan, state or federal, preempt or preclude community classification of property that would have been classified as community property under the principles of the Civil Code, the spouse of the person entitled to such property shall be allocated or assigned the ownership of community property equal in value to such property prior to the division of the rest of the community property. Nevertheless, if such property consists of a spouse’s right to receive social security benefits or the benefits themselves, then the court in its discretion may allocate or assign other community property equal in value to the other spouse.

|4(Emphasis added.) Thus, under La.R.S. 9:2801.1, a trial court has the discretion to assign a spouse community property equal to the amount the other spouse will receive in social security benefits.

Louisiana Revised Statutes 9:2801.1 was not enacted until 2001, and only became effective August 15, 2001. Douglas argues that the statute cannot be applied retroactively to a marriage that began in December of 1996. When a trial court interprets and applies state statutes, the appellate court reviews that statutory interpretation under the de novo standard of review. Ducote v. City of Alexandria, 95-1269 (La.App. 3 Cir. 7/17/96), 677 So.2d 1118.

This is the first time that a court has been faced with the question whether La. R.S. 9:2801.1 applies to social security benefits that were earned prior to the statute’s effective date. Louisiana Civil Code Article 6 provides that “[i]n the absence of contrary legislative expression, substantive laws apply prospectively only. Procedural and interpretative laws apply both prospectively and retroactively, unless there is a legislative expression to the contrary,” and La.R.S. 1:2 states that “[n]o Section of the Revised Statutes is retroactive unless it is expressly so stated.”

|fiOur supreme court has recognized that “[d]etermining whether a statute operates retroactively can be difficult when the statute must be applied to a case in which some operative facts pre-date the law while others occurred after the law’s effective date,” stating that “[i]t is imperative to understand that a law may permissibly change the future consequences of an act and even the consequences of acts committed prior to the law’s enactment without operating retroactively.” Walls v. Am. Optical Corp., 98-455, p. 4 (La.9/8/99), 740 So.2d 1262, 1266 (citing 1 M. Planiol, Treatise on the Civil Law, Sec. 243 (La.St.L.Inst.Trans.1959)). The supreme court adopted Planiol’s rule for determining the two situations in which a law operates retroactively: “[A] law is retroactive when it goes back to the past either to evaluate the conditions of the legality of an act, or to modify or suppress the effects of a right already acquired. Outside of those conditions, there is no retroactivity.” Id. at 1267 (citations omitted).

Employing Planiol’s formula in this case, we find that La.R.S. 9:2801.1 neither evaluates the conditions of the legality of a past act, nor modifies or suppresses the effects of a right already acquired. Nothing in the statute attempts to disturb, modify, or suppress any of Douglas’ acquired or vested rights in his social security benefits, nor does it attempt to change Douglas’ right to the social security benefits he earned during the marriage. Instead, it allows the trial court to allocate additional community property to Sheila in light of the fact that those social security benefits are Douglas’ separate property. Douglas did not have a vested right in how their community property would be divid-eel prior to October 12, 2005, when Sheila filed her petition. That being the case, the trial court did not abuse its discretion in applying the balancing provisions of La. R.S. 9:2801.1. We find no merit in this assignment of error.

| RValue of social security benefits

Douglas also contends that the trial court erred by accepting the valuation of his social security benefits set out in the report prepared by True North Assets Management. We find no merit in this argument. At trial, Sheila’s counsel submitted this report as a joint offering. The report states that the marital amount of Douglas’ social security benefits is $42,586.00. Douglas’ counsel did not object to the amount, but stated that he wanted to “retain and reserve my rights to submit to the Court the issue over the 10-year requirement that a party has to be married before the Social Security law in Louisiana is applicable,” and that “I’m agreeing to the report being offered as an exhibit. I’m reserving my rights to brief it, Judge.” At trial, Douglas offered no evidence to contradict this valuation of his social security benefits.

We may not reverse the trial court’s valuation of property absent an abuse of discretion. Alford v. Alford, 94-1464 (La.App. 3 Cir. 4/5/95), 653 So.2d 133. Where the trial court relied on the only evidence presented at trial, we find no abuse of the trial court’s discretion in setting the value of the social security benefits earned during the marriage at $42,586.00.

Value of the pistols, riñes, and shotguns

In its judgment, the trial court set the value of nine guns at $1,145.00 and assigned the guns to Douglas. On appeal, Douglas contends that this was an error, that Mr. Peterson actually assigned a value of $695.00 to the guns he appraised. The appellate record does not contain a copy of Mr. Peterson’s appraisal; Douglas filed a motion to correct the record, seeking to supplement the record with a March 28, 2007 letter listing the values that Mr. Peterson set on the disputed property. Sheila, in brief, agrees that the guns were actually valued at $695.00. That being the case, we find that Douglas’ motion to correct the record is moot and reduce the total of the |7community assets awarded to Douglas by the difference between $1,145.00 and $695.00, to a total of $35,259.73.

Equalizing payment

On appeal, Douglas questions the amount of the $35,965.87 equalizing payment; in her brief to this court, Sheila agrees that the trial court erred in awarding that amount. We also agree that the trial court erred.

Unfortunately, neither the reasons for judgment nor the judgment itself explains how the trial court reached the $35,965.87 total. Douglas offers us no alternative figure, but Sheila asserts that the total amount due to her is $19,627.99. According to Sheila, that amount is the sum of $9,015.72 (the amount necessary to balance the distribution of the community assets) and $10,612.24 (the amount due to her for payment of community debts). She reached the first amount by accepting the trial court’s statement that it intended to balance the social security benefits by the net value of the family home. She then removed that figure from the balancing equation and balanced the then-remaining assets and liabilities. We accept her calculations and amend the trial court judgment to provide that the equalizing payment necessary to balance the community of acquets and gains and to reimburse Sheila for payments she made for the community is $19,627.99.

DISPOSITION

For the foregoing reasons, we amend the trial court judgment to set the value of the guns allotted to Douglas Julien Co-meaux at $695.00 instead of $1,145.00 and amend the judgment to set the equalizing payment at $19,627.99 instead of $35,965.87. Because the only relief granted Douglas Julien Comeaux on appeal was | ^stipulated to by Sheila Gail Romero Co-meaux, we assess all costs of this appeal to Douglas Julien Comeaux.

AFFIRMED AS AMENDED.

      . The divorce and other ancillary matters had been ruled upon by this time.

      . Although the trial court's June 2, 2008 reasons for judgment state that it considered the post-trial memoranda, the record does not contain any briefs or memoranda submitted after the March 14, 2007 trial.

      .The judgment is somewhat confusing in this respect because, in the next paragraph after allocating the family home to Sheila as an equalizing payment, the judgment again assigns the same property to Sheila as an overall asset of the community estate.

      . As stated in footnote 3, this included the family home valued at $78,750.00.

      . The list included two mortgage obligations secured by the family home: one to CitiMort-gage totaling $51,766.00 and the other to Hibernia National Bank totaling $6,975.19.

      . Douglas also argues that because he entered the social security system in January 1, 1988, the statute cannot be applied to him.

      . In McKinstry v. McKinstry, 36,285, p. 6 (La.App. 2 Cir. 8/14/02), 824 So.2d 1260, 1263, writ denied, 02-2361 (La.1/10/03), 834 So.2d 438, the court specifically did not address whether La.R.S. 9:2801.1 could be applied retroactively, but said:
      We only note that prior to the enactment of R.S. 9:2801.1, no Louisiana statute recognized a party’s interest in property which, but for federal preemption, would be classified as community. The classification of a spouse's Social Security benefits is preempted by federal law. Thibodeaux v. Thibodeaux, 97-1297 (La.App. 1 Cir. 5/15/98), 712 So.2d 1024, and citations therein. A statute does not normally change the character of property which has already been classified as community or separate. See, e.g., Wood v. Wood, 424 So.2d 1143, 1150 (La.App. 1 Cir.1982). Nothing in R.S. 9:2801.1 purports to change the character of social security benefits as separate property.

      . She reached this net value by subtracting the balance due on the two mortgages against the family home from the gross value of the home.


source: Caselaw Access Project

author: DECUIR, Judge.

license: Public Domain

text:
    Robin WILLIAMS v. Dr. Robert MORROW.
    No. 08-1324.
    Court of Appeal of Louisiana, Third Circuit.
    April 1, 2009.
    George Arthur Flournoy, Flournoy & Doggett, Alexandria, LA, for PlaintiffAp-pellant, Robin Williams.
    James S. Gates, Stephen M. Morrow, Morrow, Gates & Morrow, L.L.C., Opelou-sas, LA, for Defendant/Appellee, Dr. Robert Morrow.
    Court composed of OSWALD A. DECUIR, JIMMIE C. PETERS, and MARC T. AMY, Judges.
   DECUIR, Judge.

| Jn this workers’ compensation action, the claimant, Robin Williams, appeals the denial of her claim for reimbursement of certain overpayments made to Dr. Robert Morrow, her treating orthopedic surgeon. For the following reasons, we reverse.

Williams sustained a work-related injury in May of 2003. Her employer paid for initial medical care, but by November, Williams wanted to see a specialist. Her attorney’s office scheduled an appointment with Dr. Morrow. Preferring not to wait for the workers’ compensation carrier to approve the visit, the attorney sent the required $500.00 pre-payment. Williams’ attorney also prepaid for the follow up visit by sending a check for $635.00. Shortly thereafter, the compensation carrier began paying Dr. Morrow’s bills in accordance with the fee schedule contained at La.R.S. 23:1034.2. All further charges were paid directly by the carrier, and the charges for the first two visits were also paid to Dr. Morrow in the amount of $457.92 as per the fee schedule. When the workers’ compensation case was settled, Williams was charged by her attorney’s office for the two payments to Dr. Morrow.

Williams’ attorney, on her behalf, later requested repayment from Dr. Morrow, as he had been paid twice for the first two visits. Mr. Andy Storer, the compensation adjustor handling Williams’ file, also wrote to Dr. Morrow requesting that Williams’ prepayments be reimbursed to her. Storer similarly testified at trial. Dr. Morrow contends that Williams’ case began as an attorney referral case, and his office was never instructed to change the status of the file. Therefore, he reviewed medical records and prepared a thorough narrative report as he would for any attorney referral case. In oral reasons, the workers’ compensation judge indicated that the extra work involved in reviewing records and rendering a report warranted the extra payment 12from Williams, over and above what was paid by the compensation carrier in accordance with the fee schedule.

The evidence in the record shows that on November 18, 2003, Williams’ attorney’s office called Dr. Morrow’s office to schedule an appointment. The call was documented by Dr. Morrow’s office as follows: “Mr. Flournoy’s office was told w/c would need to call to authorize appointment prior to patient being seen or appt. would be rescheduled. Kathy called back and said Mr. Flournoy did not want to wait on comp and that he would pay.” From the notations on the intake form, it is clear that the doctor’s office was informed the visit was for a work-related injury. The form contains the following notation: “Office called back did not want to wait on W/C to approve-he will pay.” When Williams recounted the history of her injury at her first appointment on December 2, 2003, she gave the details of her arm becoming stuck between two rollers at the Boise Cascade plywood plant where she worked. Six weeks later, Dr. Morrow received his first check from the workers’ compensation carrier.

The Workers’ Compensation Act does not require employer approval for the injured employee to see her choice of physician. Specifically, La.R.S. 23:1121 grants to the employee an absolute right to select one physician in any field without the approval of the employer. Smith v. Southern Holding Inc., 02-1071 (La.1/28/03), 839 So.2d 5. The Act, however, is silent on a physician’s right to seek employer approval for the payment of medical expenses.

The physician’s interest in securing payment is certainly legitimate. Nevertheless, we must harmonize the physician’s interest with the claimant’s interest in obtaining prompt medical care. In this particular case, the claimant felt the need | sto see a specialist before the employer had accepted responsibility for her injury. It is possible that the claimant was afraid the approval process would be lengthy or bureaucratically burdensome. Perhaps the approaching holidays were a concern. Whatever the reason, the attorney guaranteed payment, the doctor knew he was seeing a workers’ compensation claimant, and within six weeks, compensation payments to the doctor began.

Given these circumstances, we find error in the refusal to award reimbursement to Williams. Therefore, Dr. Morrow is ordered to reimburse the prepaid costs of Williams’ first two appointments, which total $1,135.00. Thereafter, any unreim-bursed costs associated with Williams’ treatment should be addressed by Dr. Moxtow with the compensation carrier.

The judgment of the Office of Workers Compensation is reversed. Judgment is hereby rendered in favor of Robin Williams in the amount of $1,135.00. Costs of this appeal are assessed to Dr. Robert Morrow.

REVERSED AND RENDERED.


author: DECUIR, Judge. PETERS, J.,

text:
    Michael L. GLASS v. Patricia M. GLASS.
    No. 08-1328.
    Court of Appeal of Louisiana, Third Circuit.
    April 1, 2009.
    Jeffrey H. Thomas, Thomas Law Firm, Natchitoches, LA, for Defendant/Appellant, Patricia M. Glass.

      Terry Aubin, The Aubin Law Firm, Alexandria, LA, for Plaintiff/Appellant, Michael L. Glass.
    Court composed of OSWALD A. DECUIR, JIMMIE C. PETERS, and MARC T. AMY, Judges.
   DECUIR, Judge.

| jThis is the second appeal in this community property partition proceeding to this court. In the first appeal, this court issued an unpublished opinion wherein we addressed Glass v. Glass, 07-124 (La.App. 3 Cir. 5/30/07), 960 So.2d 378, writ denied 07-1797 (La.11/21/07), 967 So.2d 1156.

FACTS

Michael and Patricia Glass were divorced on February 9, 2004. A fairly complex partition proceeding followed and the trial court entered a single money judgment representing net reimbursement owed and a cash equalizing sum together with legal interest. That judgment ultimately ended up before this court. This court amended the trial court judgment to adjust the amount of reimbursement due the respective parties and otherwise affirmed the trial court. The net effect of that amendment was to award an additional $50,148.65 to Patricia. Our judgment was silent with regard to judicial interest. Patricia did not seek a rehearing nor did she raise the issue of judicial interest in her writ application to the supreme court. In December 2007, Patricia filed a rule to show cause in the trial court, wherein she sought to receive judicial interest on the amount of the court of appeal judgment and to require an accounting of all rental income received by Michael from July 12, 2006 through September 30, 2006. Michael filed an exception of no subject matter jurisdiction, alleging the trial court was without authority to amend the court of appeal judgment. The trial court denied Michael’s exception and ordered the requested accounting which Michael filed, and judgment was entered on August 28, 2008, finding that the net rental income from July 12, 20.06, through September 30, 2006, was $3,856.04, based on the accounting filed by Michael, and amending the Lcourt of appeal judgment to award Patricia judicial interest on the increased reimbursement. Both parties appeal.

AMENDMENT TO COURT OF APPEAL JUDGMENT

Michael argues that the trial court had no authority to amend the judgment of the court of appeal. We agree.

In Wheat Inc. v. Caruthers, 439 So.2d 1065, 1066 (La.1983), the supreme court said:

Within thirty days of the mailing of notice of rendition of judgment by the court of appeal, a party may either apply to the court of appeal for a rehearing or apply to the supreme court for certiora-ri. If no timely application is filed in either court, the judgment of the court of appeal becomes final and definitive, and acquires the authority of the thing adjudged. C.C.P. 2166. Once the judgment of the court of appeal acquired the authority of the thing adjudged, the court of appeal lost the power and authority to reverse or modify that judgment. (Footnote omitted)

Louisiana Code of Civil Procedure article 2088 provides, in pertinent part:

The jurisdiction of the trial court over all matters in the case reviewable under the appeal is divested, and that of the appellate court attaches, on the granting of the order of appeal and the timely filing of the appeal bond, in the case of a suspensive appeal or on the granting of the order of appeal, in the case of a devolutive appeal.

Accordingly, when Patricia filed her rule to show cause in December 2007, neither this court nor the trial court had the authority to amend the court of appeal judgment. Moreover, even if the court had jurisdiction to amend the judgment, it could not have done so to award judicial interest. In Sanders v. American Fidelity Fire Ins. Co., 98-308 (La.App. 3 Cir. 9/23/98), 750 So.2d 210, 213, this court said:

The following situations have been held by various courts to be impermissible modifications of the substance of a judgment: ordering a husband to pay $300.00 monthly rental on a community home, Sellers v. Sellers, 95-196 (La.App. 3 Cir. 5/31/95); 660 So.2d 499, writ denied, 95-2687 (La.12/15/95); 664 So.2d 445; granting legal interest and correcting award to children of $79.00 per month, Hunt Plywood, Inc. v. Estate of Davis, 26,161 (La.App. 2 Cir. 10/26/94); 645 So.2d 248, writ denied, 94-2871 (La.1/27/95); 649 So.2d 388; amending an original judgment to grant an exception of a party, Smith v. Succession of Trattler, 96-225 (La.App. 5 Cir. 9/18/96); 681 So.2d 961; adding an award for medical expenses in the amount of $19,342.92, expenses for continuing medical treatment and mileage reimbursement expenses, Starnes v. Asplundh Tree Expert Co., 94-1647 (La.App. 1 Cir. 10/6/95); 670 So.2d 1242; adding another partner and partnership to a judgment, Pitard v. Schmittzehe, 28,571 (La.App. 2 Cir. 8/21/96); 679 So.2d 515; and amending a judgment adding judicial interest, Stevenson v. State Farm, 624 So.2d 28 (La.App. 2 Cir.1993). It is obvious that, without the consent of the parties, a judgment cannot be amended to take away or add something affecting substantive rights. La.Code Civ.P. art. 1951. Sellers, 660 So.2d 499; Starnes, 670 So.2d 1242.
The modification of the judgment in the case sub judice adds legal interest for ten years, a substantial sum. There was no agreement of the parties to do so. It is a substantive amendment to the judgment in this case. In Sellers, this court said: “[a] substantive amendment to a judgment is an absolute nullity. LaBove v. Theriot, 597 So.2d 1007 (La.1992); Coomes v. Allstate Ins. Co., 517 So.2d 436 (La.App. 1 Cir.1987); Almerico v. Katsanis, 458 So.2d 158 (La.App. 5 Cir.1984); Templet v. Johns, 417 So.2d 433 (La.App. 1 Cir.), writ denied, 420 So.2d 981 (La.1982).” Id. at 504-5.

In this case, the trial court amended a judgment of this court to add judicial interest. Louisiana Code of Civil Procedure Article 1951 provides no authority for the trial court to amend its own judgment to award judicial interest let alone to amend a judgment of this court.

We are cognizant of the fact that this court awarded interest in a similar circumstance in Preis v. Preis, 95-352 (La.App. 3 Cir. 12/6/95), 664 So.2d 860, writ denied, 95-3096 (La.2/28/96), 668 So.2d 368. As pointed out in Judge Peters’ dissent, the majority in that case in resolving the question of the claimants’ entitlement to legal interest overlooked the court’s lack of authority to modify a final judgment. Therefore, by overlooking the issue the court did not specifically hold that it had'the authority to modify a final judgment. Instead, that holding is inferred from the court’s action. It is, however, an improper inference. The court in Preis simply ^exceeded its authority. As noted above, the legislature and the supreme court have clearly resolved this issue; neither we nor the trial court have the authority to make substantive modifications to a final judgment. To the extent that Preis suggests the contrary, it is incorrect. Accordingly, the judgment of the trial court denying the exception of lack of subject matter jurisdiction and amending the court of appeal judgment to provide for judicial interest is reversed.

POST HEARING RENTAL INCOME

Patricia contends the trial court erred in refusing to award rental income for the period from trial to judgment. We disagree.

In the previous appeal to this court, Patricia raised this issue, but we declined to discuss this issue believing it had not been raised in the trial court. However, in its written reasons for judgment supporting the judgment currently being appealed, the trial court indicated that it had addressed the issue of rental income together with rental expenses and that it denied both for the reasons cited in Sheridon v. Sheridon, 03-103 (La.App. 3 Cir. 2/4/04), 867 So.2d 38. We find no error in the trial court’s ruling on this issue.

HEARING ON ACCOUNTING

Patricia next contends that the trial court erred calculating post-judgment net rental income and in not holding a hearing on the accounting submitted by Michael. We agree. Louisiana Revised Statute 9:2801 clearly contemplates a contradictory hearing to traverse an accounting of community assets. Accordingly, we vacate the trial court’s determination that the net rental income generated by the property is $3,856.04 and remand the case for a hearing on the accounting submitted by Michael.

I,.DECREE

For the foregoing reasons, the judgment of the trial court is reversed insofar as it amends the prior judgment of this court to award judicial interest; the judgment is affirmed insofar as it denies Patricia Glass’ claim for rental income between trial and judgment; the judgment is vacated insofar as it determines that the net rental income from July 12, 2006, through September 30, 2006, is $3,856.04 and the case is remanded for a hearing to traverse the accounting submitted by Michael Glass. All costs of these proceedings are taxed to appellant, Patricia Glass.

REVERSED IN PART; AFFIRMED IN PART; VACATED AND REMANDED IN PART.

PETERS, J., concurs in the result and assigns written reasons.

PETERS, J.,

concurring in part.

hi agree with the majority in its conclusion that the trial court did not have the authority to amend this court’s May 30, 2007 judgment. However, I write separately to point out that the trial court’s effort to grant Patricia Glass legal interest on the increased reimbursement was a vain and useless act, as Patricia already has a judgment awarding her legal interest. The amended trial court judgment reads in pertinent part as follows:

ORDERED that the parties’ respective reimbursement claims totaling $256,530.33 for Michael Glass and $301,198.49 for Patricia Glass; it is further
ORDERED that Patricia Glass owes Michael Glass a cash equalizing sum for the difference in net assets allocated, and that cash equalizing sum is $41,380.00;
Accordingly, considering the net reimbursement owed and also considering the cash equalizing sum owed, all as mentioned above, it is further
ORDERED that [a] single money judgment is hereby rendered herein, representing net reimbursement owed and also representing the cash equalizing sum, in favor of Patricia Glass and against Michael Glass in the principal sum of $3,284.16 plus legal interest thereon from August 22, 2006 until paid in full[.]

(Emphasis added.)

In its prior opinion, this court made the following amendment to that judgment:

|2For these reasons, the judgment of the trial court is affirmed in part, reversed in part, and rendered as follows. The reimbursement due Michael, considering the conclusions reached herein, is $252,150.30. The reimbursement due Patricia, considering the conclusions reached herein, is $343,682.99.

Glass v. Glass, 07-124, p. 18 (La.App. 3 Cir. 5/30/07), 960 So.2d 378, writs denied, 07-1797, 07-1883 (La.11/21/07), 967 So.2d 1156, 1157.

Thus, this court’s prior opinion only adjusted the reimbursement claims established by the trial court. In fact, our opinion specifically affirmed the remainder of the judgment, which would include the award of interest on the adjusted single money judgment.

In all other respects, I agree with the majority’s opinion.


author: PICKETT, Judge.

text:
    Michael W. TRAHAN v. CITY OF CROWLEY.
    No. 08-1394.
    Court of Appeal of Louisiana, Third Circuit.
    April 1, 2009.

      Michael B. Miller, Miller & Miller, Crowley, LA, for Claimant/Appellee, Michael W. Trahan.
    Christopher R. Philipp, Attorney at Law, Lafayette, LA, for Defendant/Appellant, City of Crowley.
    Court composed of SYLVIA R. COOKS, ELIZABETH A. PICKETT, and BILLY HOWARD EZELL, Judges.
   PICKETT, Judge.

| following a hearing on July 29, 2008, a workers’ compensation judge (WCJ) granted the claimant’s, Michael W. Trahan’s, motion to amend judgment. The defendant, the City of Crowley, appeals that action. The claimant also appeals, arguing that if this court reverses the WCJ’s action, it should also “reverse the awarding of a ‘credit for all indemnity benefits previously paid.’ ” We affirm the decision of the WCJ.

FACTS

This case formerly was formerly before this court: see Trahan v. City of Crowley, 07-266 (La.App. 3 Cir. 10/3/07), 967 So.2d 557, writs denied, 07-2462 (La.2/15/08), 976 So.2d 185 and 07-2471 (La.2/15/08), 976 So.2d 187. The facts, as set forth in that opinion are as follows:

On November 15, 1993, the claimant/employee, Michael Trahan (Trahan), injured his back in the course and scope of his employment with the City of Crowley (City). The City paid Trahan temporary total disability benefits (TTD) beginning November 17, 1993 at a rate of $171.75 per week based upon an average weekly wage (AWW) of $257.73. Trahan’s TTD benefits were relegated to supplemental earnings benefits (SEB) on May 25, 1994 at a rate of $744.25 per month. On October 27, 1997, SEB was reduced to $266.34 per month as result of a job offer extended by the City. Thereafter, on April 27, 1998, Trahan’s benefits were increased to $369.39 per month, which is the amount he was receiving at trial.
Contending that he had been underpaid compensation benefits, Trahan filed a Disputed Claim for Compensation (Form 1008) on December 16, 2002, asserting that on November 15, 1993 he slipped and fell, injuring his back while working for the City. Trahan also sought penalties and attorney fees. The City answered, generally denying the allegations set forth by Trahan, including the occurrence of a work-related accident, the nature and extent of Trahan’s disability, and the amount of workers’ compensation benefits to which he was entitled. The City also filed an exception, asserting that Trahan’s claims for penalties and attorney fees had prescribed.
_JjFollowing the trial on August 11, 2005, the workers’ compensation judge (WCJ) found that the City improperly calculated Trahan’s AWW by failing to include certain fringe benefits in its computation. The WCJ ruled that the correct calculation yielded an AWW of $205.63. On the issue of the reduction in SEB, the WCJ found that the reduction implemented as a result of the job offer was improper since the part-time job did not constitute a suitable job, and the offer of employment was not in keeping with the dictates of Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La.7/1/97), 696 So.2d 551. The WCJ also ruled in favor of Trahan and awarded him permanent and total disability benefits as a result of the November 15, 1993 accident.

Trahan, 967 So.2d at 559.

The judgment which was the subject of the former appeal ordered “the CITY OF CROWLEY pay total disability benefits to MICHAEL W. TRAHAN beginning November 16, 2003 at the rate of $205.63 per week” (last emphasis ours). Subsequently, noting that the claimant’s disability had actually begun on November 16, 1993, counsel for Trahan filed a motion to amend the judgment on June 16, 2008, so that it would conform to the facts and to the order of the WCJ as affirmed by this court. A hearing on the motion to amend was held on July 29, 2008. At the close of the hearing, the WCJ stated:

The calculation should have been fairly simple, and it should have been since 1993, subject to a credit for A, B, and C.... [Therefore I do find that it is an error of calculation and order that the judgment be amended to reflect the commencement date of 1993 as was obviously [intended].
So, I am amending the judgment and the proper judgment is commencement [sic] of November 16, 1993 at the rate of ... Two Hundred and Five Dollars and Sixty-three Cents per week until further orders of this office. Subject to a credit of One Ninety-four O Three (194.03) per month beginning April 2, 2004 as retirement benefits. Credit in the amount of Five Hundred and Fifty-eight Dollars and Forty-two Cents ($558.42) for salary and subject to a credit for any benefits paid since November 16, 1993. Any indemnity benefits paid, that is my calculation.

13An amended judgment in conformity with the foregoing was signed August 27, 2008, and the City appeals.

LAW AND DISCUSSION

On appeal the City argues that the WCJ erred in amending the judgment in that the amendment constituted a substantial change in the judgment. Any substantial change in a judgment is prohibited by amendment under La.Code Civ.P. art.1951, which provides: “A final judgment may be amended by the trial court at any time, with or without notice, on its own motion or on motion of any party: (1) To alter the phraseology of the judgment, but not the substance; or (2) To correct errors of calculation.”

In Cross v. Timber Trails Apartments, 06-1037, pp. 7-10 (La.App. 3 Cir. 2/7/07), 949 So.2d 616, 619-21, this court noted the following:

Article 1951, Official Revision Comment (b), cites Glen Falls Indemnity Company v. Manning, 168 So. 787 (La.App.Orleans 1936), for the proposition that a permitted, non-substantive amendment is an amendment that takes nothing from and adds nothing to the original judgment.
The jurisprudence is replete with numerous cases wherein Louisiana appellate courts have approved the use of amendments under this article where the mistake or omission is evident from the record. See, for example, Dufrene v. Gaddis, 98-1294 (La.App. 5 Cir. 6/1/99), 738 So.2d 75, writ denied, 99-1867 (La.10/8/99), 751 So.2d 220 (amended judgment to correct an error of calculation and properly give appellee credit for the amount it had originally granted to appellant); Jackson v. North Bank Towing Corp., 98-1334 (La.App. 3 Cir. 3/3/99), 742 So.2d 1 (amendment to correct erroneous statement that dismissal was under state’s forum non conveniens doctrine instead of Jones Act when mistake was evident from the record); Gotte v. Magnum Elec. Co., Inc., 93-510 (La.App. 3 Cir.1993), 628 So.2d 1168 (original judgment referred to only one of two defendants and did not name the defendant referred to; court was able to ascertain the names of the defendants from the record and chose not to remand the case for the amendment of the judgment, referencing Glen Falls Indemnity Co., 168 So. 787) Shearman v. Simpson, 264 So.2d 713 (La.App. 3 Cir.1972) (amended to substitute tenant’s name where five-year-old son with same name, except for middle initial, was served with landlord’s petition for collection of past due rent).
See also, King v. Doctor’s Hosp. of Opelousas, 01-1534 (La.App. 3 Cir. 5/8/02), 817 So.2d 473, writ denied, 02-1553 (La.9/30/02), 825 So.2d 1193 (the amended judgment did not effect a substantive change but merely used different and more specific words, phraseology, to specify the reservation of rights already incorporated into the original judgment via the approval and acceptance of the settlement agreement); Kerr v. Kerr, 479 So.2d 977 (La.App. 3 Cir.1985) (amendment which merely changes the language of the judgment to express in percentage figures the former wife’s community interest in husband’s military pension is a change in phraseology); Ryland v. St. Mary’s Residential Training School, 03-0027 (La.App. 3 Cir. 4/30/03), 843 So.2d 1237, writ denied, 03-1536 (La.10/3/03), 855 So.2d 311(amendment merely altered the phraseology to specify for purposes of enforcing the prior judgment that which was already incorporated into the prior judgment; i.e., medical items prescribed as treatment in conjunction with the lumbar fusion necessarily concomitant with the procedure itself).
Additional cases approving amended judgments include Thompson v. Matthews, 374 So.2d 192 (La.App. 4 Cir.1979) (defendant’s identity was fixed with certainty, so that the error in spelling his name was of little moment); Wagenvoord Broadcasting Co. v. Blanchard, 261 So.2d 257 (La.App. 4 Cir.), writ refused, 262 La. 313, 263 So.2d 48 (1972) (amended to correct the spelling of the defendant’s name from Blanchard to Blancher, which was error of phraseology); Morris v. New Orleans Public Service, Inc., 446 So.2d 457 (La.App. 4 Cir.), writ denied, 447 So.2d 1077 (La.1984) (amendment to assess costs against the defendant did not alter substance of the original judgment as evidenced by the court’s statements in the record, even though the trial judge previously signed an original judgment assessing costs against the plaintiff).

It is obvious from our examination of the record that the amended judgment neither took anything from nor added anything to the original judgment. Our appellate decision affirmed the correction of the claimant’s weekly benefit to $205.63 per week, and further, found that the City had improperly reduced his benefit to SEB. Accordingly, he was due $205.63 per week from the date of injury. Our judgment |Balso affirmed the credits due the City listed above. The WCJ’s amended judgment was in conformity with our judgment of October 3, 2007.

Therefore, the amended judgment signed by the WCJ on August 27, 2008, neither took anything from nor added anything to the original judgment, and thus was in compliance with La.Code Civ.P. art. 1951.

Accordingly, for the reasons stated, the amended judgment of the WCJ is affirmed. All costs of this appeal are assessed against the appellant, the City of Crowley. Insomuch as we affirm, we need not address the claimant’s arguments.

AFFIRMED.


text:
    Tony LAVALAIS, et al. v. Melissa E. BRISTER, et al.
    No. 2008-1390.
    Court of Appeal of Louisiana, Third Circuit.
    April 1, 2009.
    Kevin Wade Trahan, Ottinger Hebert, L.L.C., Lafayette, LA, for Defendant-Ap-psllant, Acadian Ambulance Service, Inc.
    Cory Paul Roy, Attorney at Law, Marksville, LA, for Plaintiffs-Appellees, Tony Lavalais Rashaun Lacart.

      Court composed of SYLVIA R. COOKS, ELIZABETH A. PICKETT, and BILLY HOWARD EZELL, Judges.
   PICKETT, Judge.

| lAcadian Ambulance appeals a judgment of the trial court apportioning fault in a car accident.

STATEMENT OF THE CASE

At approximately 4 a.m. on the morning of July 4, 2006, Danielle Dominick, Tony Lavalais, and Rashaun Laeart decided to go “clubbing” at A & W Lounge north of Marksville. Dominick drove and Lavalais and Laeart were passengers in her vehicle. A & W Lounge is on Highway 1, on the east side of the road, just north of Stockyard Lane. Dominick turned right from Stockyard Lane onto Highway 1. Unable to find a parking spot at A & W Lounge, Dominick attempted to make a left turn into the parking lot at Don’s Feed Mill. While the Dominick vehicle was in the southbound lane of Highway 1, an Acadian Ambulance vehicle driven by EMT Melissa Brister struck the Dominick vehicle. The Acadian Ambulance vehicle was traveling northbound and was passing the Dominick vehicle. In this section of the Highway 1, passing is allowed.

The guest passengers in the Dominick vehicle, Lavalais and Laeart (hereinafter “the plaintiffs”) filed this suit against Aca-dian Ambulance and Melissa Brister. While the basic facts are not in dispute, the particular circumstances of the accident were contested at trial. The plaintiffs’ account of the accident is that when they stopped at the stop sign at Stockyard Lane and Highway 1, there was no traffic approaching from the south. Dominick turned right, and when they discovered that the parking lot of the bar was full, Dominick turned on her left blinker and started to turn into the parking lot at Don’s Feed Mill when the ambulance struck the driver’s side door. InJjthe defendant’s version of the accident, as told by Brister and Monica Caldero, an EMT who was in the passenger’s seat at the time of the accident, the ambulance was traveling between fifty-five and sixty miles per hour in the northbound lane. The Dominick vehicle made a rolling stop at the end of Stockyard lane and then pulled out two to four car lengths ahead of the ambulance. Brister, who had set the cruise control, applied the brakes, turned her left blinker on with the intention of passing the car, and moved over into the southbound lane. Caldero testified that when the front of the ambulance was even with the rear tires of the Dominick vehicle, Dominick began to veer into the southbound lane. The trial court specifically found that Laeart and Lavalais were credible witnesses. The trial court also noted that “Caldero’s testimony was somewhat defiant and extremely self-serving.” The trial court found Brister’s testimony less precise than Caldero’s.

After hearing the testimony and reviewing the police report and photographs of the vehicles, the trial court made the following factual findings:

The Dominick vehicle appeared at the stop sign at the intersection of Stockyard Lane and Louisiana Highway # 1 and made a quick right turn onto Highway # 1, pulling in front of the Acadian Ambulance. The ambulance came upon the Dominick vehicle quickly due to the Dominick vehicle traveling at an extremely slow rate of speed while planning to park at the A & W Lounge and due to the speed of the ambulance. Due to lack of a parking place, Dominick made a decision to park in the Don’s Feed Mill Parking Lot and began a left-hand turn while the ambulance was beginning a passing maneuver. Dominick did not take the proper precautions pri- or to making the lefthand turn. Brister made a decision to pass without ascertaining the intent of the Dominick vehicle. This Court is not convinced that brakes were applied by Brister until immediately prior to the impact.

| oThe trial court went on to find that Dominick and Brister were each fifty percent at fault in causing the accident and awarded damages to Lavalais and Lacart. Acadian Ambulance now appeals that judgment.

ASSIGNMENT OF ERROR

Acadian Ambulance asserts one assignment of error:

The District Court was manifestly erroneous in concluding that Brister was fifty percent at fault in causing the collision when the evidence established that she was in the process of lawfully overtaking the plaintiffs’ vehicle when it suddenly executed a left turn and entered into her lane of travel.

DISCUSSION

“[A] trier of fact’s allocation of fault is subject to the manifestly erroneous or clearly wrong standard of review.” Williams v. Aymond, 05-1547, 05-1548, p. 8 (La.App. 3 Cir. 12/6/06), 945 So.2d 823, 831, torits denied, 07-5 (La.3/9/07), 949 So.2d 442 and 07-69 (La.3/9/07), 949 So.2d 449. “[Allocation of fault is the finding of an acceptable range and any allocation by the trier of fact within that range cannot be disturbed under the manifest error standard of review.” Id. at 831; see also Clement v. Frey, 95-1119, 95-1163 (La.1/16/96), 666 So.2d 607. Our supreme court discussed the factors an appellate court must consider when reviewing a trial court’s allocation of fault in Watson v. State Farm Fire and Cas. Ins. Co., 469 So.2d 967, 974 (La.1985):

[V]arious factors may influence the degree of fault assigned, including: (l)whether the conduct resulted from inadvertence or involved an awareness of the danger, (2) how great a risk was created by the conduct, (3) the significance of what was sought by the conduct, (4) the capacities of the actor, whether superior or inferior, and (5) any extenuating circumstances which might require the actor to proceed in haste, without proper thought. And, of course, as evidenced by concepts such as last clear chance, the relationship between the fault/negligent |4conduct and the harm to the plaintiff are considerations in determining the relative fault of the parties.

The duties imposed on a motorist turning left are discussed in La.R.S. 32:104, in pertinent part:

A. No person shall turn a vehicle at an intersection unless the vehicle is in proper position upon the roadway as required in R.S. 32:101, or turn a vehicle to enter a private road or driveway, or otherwise turn a vehicle from a direct course or move right or left upon a roadway unless and until such movement can be made with reasonable safety-
B. Whenever a person intends to make a right or left turn which will take his vehicle from the highway it is then traveling, he shall give a signal of such intention in the manner described hereafter and such signal shall be given continuously during not less than the last one hundred (100) feet traveled by the vehicle before turning.
C. No person shall stop or suddenly decrease the speed of a vehicle without first giving an appropriate signal in the manner provided herein to the driver of any vehicle immediately to the rear when there is opportunity to give such signal.

The duties of a motorist passing another vehicle moving in the same direction is codified at La.R.S. 32:73:

The following rules shall govern the overtaking and passing of vehicles proceeding in the same direction, subject to those limitations, exceptions, and special rules hereinafter stated:
(1) Except when overtaking and passing on the right is permitted, the driver of a vehicle overtaking another vehicle proceeding in the same direction shall pass to the left thereof at a safe distance, and shall not again drive to the right side of the roadway until safely clear of the overtaken vehicle.
(2) Except when overtaking and passing on the right is permitted, the driver of an overtaken vehicle shall give way to the right in favor of the overtaking vehicle on audible signal, and shall not increase the speed of his vehicle until completely passed by the overtaking vehicle.

IfiThe trial court determined that Dominick and Brister were each fifty percent at fault. The trial court found that Dominick did not determine that a lefthand turn could be safely made before turning left and was distracted and did not see the ambulance at any point prior to impact. The trial court found that Brister did not overtake the Dominick vehicle at a safe distance and that Brister did not take the necessary precautions when she determined that Dominick was proceeding slowly, especially since there were many cars in the parking lot and on the shoulder of the road.

The trial court’s factual findings are supported by the record. The trial court clearly believed the testimony of La-valais and Lacart that Dominick had her blinker on before turning left. Reviewing the damage to the vehicles, the trial court determined that the passenger’s side headlight area of the ambulance collided with the driver’s door of the Dominick vehicle. The court found that the angle of impact supported the version of events of Lavalais and Lacart that Dominick was turning left and discounted Caldero’s testimony that the Dominick vehicle was drifting to the left as though it was going to parallel park on the shoulder of the southbound lane. In making these findings, the trial court made credibility determinations. “[W]here the findings are based on determinations regarding the credibility of witnesses, the manifest error standard demands great deference to the findings of fact.” Adams v. Rhodia, Inc., 07-2110, p. 10 (La.5/21/08), 983 So.2d 798, 806-07.

We must next determine whether the factual findings of the trial court about how the accident happened support the allocation of fault between the parties. Acadian Ambulance argues that in a similar case, Yellott v. Underwriters Insurance Co., 04-1342 (La.App. 3 Cir. 8/31/05), 915 So.2d 917, writ denied, 05-2439 (La.4/24/06), 926 So.2d 540, this court reversed a fifty-fifty allocation of fault and found the passing vehicle ten percent at fault and the vehicle turning left ninety percent at fault. In Yellott, this court determined that a driver who turns left has a duty to make certain that the left turn can be made safely, and that duty includes insuring that any vehicle passing on the left are safely clear of the vehicle. This court relied on an earlier case, Kilpatrick v. Alliance Casualty and Reinsurance Co., 95-17 (La.App. 3 Cir. 7/5/95), 663 So.2d 62, writ denied, 95-2018 (La.11/17/95), 664 So.2d 406, in reaching this conclusion.

In Kilpatrick, this court found that a trial court was manifestly erroneous in finding that a passing motorist, Kilpatrick, was seventy percent at fault and the left turning motorist, McManus, was thirty percent at fault. In reallocating fault one hundred percent to McManus, this court stated:

Louisiana jurisprudence holds that the left-turning motorist and the overtaking and passing motorist must exercise a high degree of care because they are engaged in dangerous maneuvers. Neal v. Highlands Ins. Co., 610 So.2d 177 (La.App. 3 Cir.1992), writ denied, 612 So.2d 100 (La.1993).
The law sets forth the duties imposed on a left-turning driver as well as a passing driver. The duties imposed upon a left-turning motorist are found in La.R.S. 32:104. Under this statute, Mc-Manus was required to give a signal of his intent to make a left turn at least 100 feet before reaching Duncan Road. In addition to giving the proper signal, Mc-Manus was required to make a proper observation that the turn could be made without endangering a passing vehicle. Bamburg v. Nelson, 313 So.2d 872 (La.App. 2 Cir.), writ denied, 318 So.2d 57 (La.1975). The onerous burden placed upon a left-turning motorist is not discharged by the mere signaling of an intention to turn. The giving of a signal, which fact is disputed in the case sub judice, is immaterial if at the time the driver of the turning vehicle did not have the opportunity to make the turn in safety. Husser v. Bogalusa Coca Cola Bottling Co., 215 So.2d 921 (La.App. 1 Cir.1968).
17FinalIy, in a vehicular collision case, the plaintiff may take advantage of a presumption of the defendant’s negligence when the plaintiff proves the defendant executed a left-hand turn and crossed the center line at the time of impact. Thomas v. Champion Ins. Co., 603 So.2d 765 (La.App. 3 Cir.1992). Accordingly, the burden rests heavily on the motorist who desires to make a left turn to explain how the accident occurred and show he is free of negligence. Miller v. Leonard, 588 So.2d 79 (La.1991).
The law equally imposes a duty upon the passing motorist. This duty is specifically set forth in La.R.S. 32:73 and 32:75. Based on these statutes, the jurisprudence holds that the driver of a following or overtaking vehicle must be alert to the actions of motorists preceding him on the highway. Burns v. Evans Cooperage Co., 208 La. 406, 23 So.2d 165 (1945). More particularly, the driver of an overtaking or passing vehicle has the duty to ascertain before attempting to pass a preceding vehicle that from all the circumstances of traffic, lay of the land, and conditions of the roadway, the passing can be completed with safety. Palmieri v. Frierson, 288 So.2d 620 (La.1974).
From the outset, we note that the trial court was presented with disputed testimony about whether McManus had signaled his left turn and whether he attempted to make the left turn at 45 m.p.h. or a lesser speed. After reviewing the testimony, the trial court determined both that McManus had signaled his turn and that he was not traveling at 45 m.p.h. when he attempted his turn. We find no manifest error in these determinations. Nevertheless, for reasons that follow, we find that neither of these findings militate against our determination that the trial court was manifestly erroneous in finding Kilpatrick at fault, to any degree, in causing this accident.
As pointed out in the jurisprudence cited above, if the driver of a left-turning vehicle signals a left-hand turn, the left-turning driver only fulfills one-half of the requirement for making such a maneuver. Husser, 215 So.2d at 925. In the case sub judice, the record is uncon-tradicted that McManus observed Kilpa-trick’s pickup truck approaching behind him in the right-hand lane of travel and that he never again looked in his rear-view mirror to ascertain where the pickup truck was before he began his left-hand turn. It is likewise undisputed that Kilpatrick’s pickup truck had cleared the trailer portion of McManus’s eighteen-wheeler when McManus began his turn to the left and that it was the left rear wheels of the tractor portion of the eighteen-wheeler that struck Kilpa-trick’s pickup truck. Accordingly, when the accident occurred, Kilpatrick had almost completed his passing maneuver. It is clear from the record that had McManus looked [ «backward immediately prior to turning, he would have seen that he could not make the turn safely.
Likewise, even if we assume that Mc-Manus was not attempting to make the left-hand turn at 45 m.p.h., that fact does not disway us from finding that the trial court was manifestly erroneous in casting Kilpatrick with any degree of fault. It is unreasonable to require the following driver to anticipate that the preceding driver will make a left turn based on the mere fact that the preceding vehicle was traveling slowly. Barber v. Sumrall, 206 So.2d 560 (La.App. 1 Cir.1968).

Kilpatrick, 663 So.2d at 66-67.

Recently, this court has even imposed ten percent fault on a motorist who was stopped, with her blinker on waiting to turn left, when a truck fleeing a hit and run accident passed her at an excessive rate of speed in a no passing zone. The court reasoned that the driver did not look in her side view mirror before turning left, and if she had she could have avoided the accident. This even though she did look in her rearview mirror but saw only the car behind her which was also waiting to turn left. Prejean v. Rabalais, 08^436 (La.App. 3 Cir. 12/10/08), 998 So.2d 1225.

Based on this jurisprudence, we find that the trial court committed manifest error in its allocation of fault. Clearly, the law imposes a higher duty on Dominick, the left-turning motorist, than on Brister, the passing motorist, in the case before us. We reach this conclusion even though we accept the facts as set forth by the trial court. “After the court of appeal finds a ‘clearly wrong’ apportionment of fault, it should adjust the award, but only to the extent of lowering or raising it to the highest or lowest point respectively which is reasonably within the trial court’s discretion.” Clement, 666 So.2d at 611. We find that the highest percentage of fault that the trial court could have imposed on Brister and Acadian Ambulance is twenty percent. Therefore, we amend the judgment of the trial court and allocate eighty of the fault | flto Dominick and twenty percent of the fault to Brister for the damages suffered by Lavalais and Lacart.

CONCLUSION

The judgment of the trial court apportioning fault equally between Melissa Bris-ter and Danielle Dominick is reversed, and fault for the accident herein is apportioned eighty percent to Danielle Dominick and twenty percent to Melissa Brister. In all other respects the judgment of the trial court is affirmed. Costs of this appeal are assessed to the plaintiffs-appellees, Tony Lavalais and Rashaun Lacart.

REVERSED IN PART, AFFIRMED IN PART, AND RENDERED.


author: PAINTER, Judge.

text:
    SUCCESSION OF Edward P. RACHAL.
    No. 08-1379.
    Court of Appeal of Louisiana, Third Circuit.
    April 1, 2009.
    W. Alan Pesnell, Shreveport, LA, for Plaintiff-Appellant, Francie B. Rachal.
    Camille Joseph Giordano, Alexandria, LA, for Defendant-Appellee, Linda K. Ba-bineaux.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, J. DAVID PAINTER, and SHANNON J. GREMILLION, Judges.
   PAINTER, Judge.

| j Plaintiff, Francie B. Rachal, appeals the judgment of the trial court denying her petition to annul the will of her father, Edward P. Rachal, based on a finding that Plaintiff failed to prove by a preponderance of the evidence that the testator was unduly influenced in the making of the will or that the donation should be annulled for ingratitude.

FACTS AND PROCEDURAL HISTORY

On September 19, 2006, Edward P. Ra-chal executed a notarial will leaving his entire estate to his girlfriend of several years, Linda Babineaux. He died on May 18, 2007. On June 7, 2007, four of the testator’s children, Francie B. Rachal, Bryan E. Rachal, Stephen E. Rachal, and Mary Rachal Bowyer, sued to annul the will, for appointment of an administrator, and for an accounting. They alleged that the will was invalid as to form, that the testator lacked testamentary capacity, and that he was unduly influenced by Linda Babineaux into making a will in her favor. Only Francie Rachal was present at trial, and the claims of the remaining Plaintiffs were dismissed with prejudice. After hearing testimony and receiving evidence, the trial court dismissed Plaintiffs claims finding that she had not proven her case. After trial, Plaintiff moved for and was granted leave to amend her petition insofar as the petition conformed to the evidence adduced at trial. Plaintiff amended her suit to allege that the donation to Babineaux should be annulled for ingratitude. Plaintiff now appeals, asserting that the trial court erred in failing to annul the testament for ingratitude, undue influence, and fraud.

J^DISCUSSION

On appeal, Plaintiff appears to have abandoned any assertion that the testator lacked testamentary capacity or that the will was invalid as to form, arguing only that the trial court erred in failing to annul the testament for ingratitude, undue influence and fraud.

The evidence adduced at trial was as follows:

Francie Rachal testified that she was the daughter of Edward Rachal. Her parents divorced when she was ten. She stated that she saw her father approximately once a month or once every other month as an adult but that she saw him less as a child. She admitted that when her father introduced her to Linda Babineaux in October 2004, she was visiting only every two or three months. She further admitted that she did not visit her father in the nursing home in which he lived prior to his death because she did not want to see her sister, Suzette. She did not attend his funeral. Francie stated that Babineaux and her father had a turbulent relationship. She stated that her father visited her in Texas in October 2006, accompanied by Babineaux. At that time, he was recovering from kidney failure. She thought he had changed and was not as independent as he had previously been. She stated that Babineaux appeared to be making decisions for him, for example telling him what he should have to drink. She opined that her father appeared to love Babineaux but that the “love in return was not the same.” She stated that she felt Babineaux had unduly influenced her father to make the will because the relationship was volatile and because Babineaux had other romantic partners.

Linda Babineaux testified that she met the testator at a dance club in August 2002. They began dating and had a sexual relationship. She stated that she knew that |3the testator considered it to be a serious relationship. She testified that she knew that he loved her, and she loved him. She testified that she did not want to marry and began seeing other people. They broke up for a time but began seeing each other again, and she agreed to a monogamous relationship. He moved into her Lafayette, Louisiana home in August 2004 and, in October of that year, he gave her a ring for her birthday to signify their commitment. He moved out of her house because of problems with her developmentally disabled brother, who lived with her. However, the testator continued to visit her in Lafayette, and she visited him in Alexandria. He gave her gifts of jewelry. On one of her visits to Alexandria, she went with him to his attorney’s office. The testator gave his attorney information about what was to go in the will. She stated that she left the room while the will was signed. However, she knew she was the principal legatee. Shortly before he died, the testator executed a power of attorney naming Babineaux as his agent. She stated that while he was in the hospital or the nursing home before his death, she told him that she was dating someone else.

The testator’s lawyer, Joseph T. Dal-rymple, who drafted the will in question, also testified at trial. He stated that the testator was a longtime client. He opined that at the time he executed the will, the testator seemed to be in full and complete possession and control of his faculties and was the same person he had known for decades. Dalrymple testified that the testator appeared to be tired, not feeling well, and a bit mellower than in the past.

Brook R. Chaney, the social worker at the nursing home the testator lived in at the end of his life, testified that she didn’t know he had children until he was dying. 14At the end, she saw his daughter Suzette there day and night. She further testified that Babineaux was there when she could be. His sister and nephew also visited.

The testator’s sister, Roberta Hernandez Roy, testified that her brother was bedridden or in need of full time care for all or most of 2007, and that he spent time in the nursing home and the hospital before his death. She testified that he told her he was leaving his estate to Babineaux. Mrs. Roy’s son, Stanley Hernandez, nephew of the testator, also testified. He stated that he visited the testator almost every day during his last illness. Hernandez testified that the testator told him he was leaving everything to Babineaux and that “he was damned if his kids would get a penny.” Hernandez stated that he was testifying because it was his uncle’s wish that his children not get his estate and that this had been the testator’s position for years before his death. He indicated that his uncle could not have been easily persuaded to do anything against his will. Hernandez stated: “I don’t care who you were, if he didn’t want to do it you could forget it.” He also testified that his uncle told him at one point that Babineaux was seeing other men and that he replied by reminding his uncle that he saw other women.

Louisiana Civil Code article 1479 states that:

A donation inter vivos or mortis causa shall be declared null upon proof that it is the product of influence by the donee or another person that so impaired the volition of the donor as to substitute the volition of the donee or other person for the volition of the donor.

After reviewing the evidence adduced at trial, we agree with the trial court that Plaintiff failed to carry her burden of showing that Babineaux substituted her volition for that of the testator.

|fiWith regard to ingratitude, La. Civ.Code art. 1560 provides that:

Revocation on account of ingratitude can take place only in the three following cases:
1. If the donee has attempted to take the life of the donor;
2. If he has been guilty towards him of cruel treatment, crimes or grievous injuries;
3. If he has refused him food, when in distress.

Plaintiff asserts that Babineaux’s action in telling the testator that she was dating someone else while he was confined in the nursing home was cruel treatment such as to require revocation of the will for ingratitude. However, there is no evidence suggesting that the testator was emotionally affected by the information and Babineaux continued to visit the testator in the nursing home. Accordingly, we find that Plaintiff failed to carry her burden of proof in this regard.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed to Plaintiff, Francie B. Rachal.

AFFIRMED.


author: THIBODEAUX, Chief Judge.

text:
    Mary Margaret ALEXANDER v. LAFAYETTE PARISH SCHOOL BOARD.
    No. 08-1378.
    Court of Appeal of Louisiana, Third Circuit.
    April 1, 2009.

      J. Isaac Funderburk, Funderburk & Herpin, Abbeville, LA, Jonathan C. Augustine, The Augustine Firm, APLC, Baton Rouge, LA, for Plaintiff/Appellant-Mary Margaret Alexander.
    Dawn L. Morris, Law Office of Dáwn L. Morris, Lafayette, LA, for Defendant/Ap-pellee-Lafayette Parish School Board.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, J. DAVID PAINTER, and SHANNON J. GREMILLION, Judges.
   THIBODEAUX, Chief Judge.

| plaintiff-appellant, Mary Margaret Alexander, filed suit against her former employer, the Lafayette Parish School Board, which fired her for making threatening comments about doing physical harm to co-workers. She sought a declaratory judgment that the school board acted in violation of its polices and procedures in terminating her employment and sought reinstatement of her employment and reimbursement of lost salary and benefits. The trial court denied the claims and dismissed her petition. It reasoned that the school board substantially complied with applicable policy and procedures prior to terminating her employment. We affirm.

I.

ISSUES

1. Did the trial court correctly determine that the “Allegations of Misconduct Policy” (File: GAEB) set forth the procedure to be applied during the school board’s investigation of the alleged threatening comments made by the untenured high school computer proctor, Ms. Alexander?
2. Did the school board substantially comply with the correct policy and afford Ms. Alexander due process during its investigation of her alleged comments prior to her termination?

II.

FACTUAL BACKGROUND

In 2007, Ms. Alexander was a teacher’s assistant employed as the computer proctor at Lafayette Charter High School. On or about January 11, 2007, Ms. Alexander was reprimanded by Mr. Lawrence Lilly, the school’s principal, for looking at a newspaper and engaging in casual conversation with another instructor during student class time and in the presence of the students. After the students were | ¿dismissed from the class, the principal spoke with Ms. Alexander in the counsel- or’s office, which was located nearby. During Principal Lilly’s conversation with Ms. Alexander, he advised her that the students should have been working and asked that the conduct not happen again.

Later that day, Ms. Alexander angrily told another teacher, Ms. Marilyn Doucet, about the principal’s reprimand. About two weeks later, Ms. Doucet reported the conversation to Principal Lilly, stating that Ms. Alexander had made comments to her about doing harm to Principal Lilly and the counselor who had been present during the reprimand. The contents of the written statement she provided to Principal Lilly are as follows:

Mr. Lilly,
I would like to preface my statement with the following:
It is a common occurrence for Ms. Margaret Alexander to come to my classroom during the dinner break to “let off a little steam.” I simply listen patiently as she rants and raves about something that has happened recently at Charter. In so doing, it is my hope that I am helping Ms. Alexander to resolve some of the problems involving her that so very often arise. Additionally, by providing a sort of release for her, it is my hope that I am helping Charter High to operate more efficiently. However, the incident that is described below has frightened me and is certainly beyond my ability to deal with; therefore, after much thought, I have concluded that I must report the episode to you for the safety of all concerned.
01/22/07
To Whom It May Concern:
On or about January 12, 2007, Margaret Alexander came into my classroom (Room 103) at Lafayette Charter High School during the dinner break to tell me about an incident which had occurred earlier. She had been reprimanded and was upset. In her ranting, she said, “I should bring a gun and shoot off their fucking heads. I’d rather not have to do that. What I’m saying is if they made me mad enough, I would.”
| a/s/ Marilyn R. Doucet Marilyn R. Doucet

On the day he received the written statement, Principal Lilly immediately reported the incident to Thomas H. Brown, an Area Director for the Lafayette Parish School System. Mr. Brown was the immediate supervisor for twelve principals at the time, including Principal Lilly. His job description included conducting investigations of misconduct. Mr. Brown requested that he and Principal Lilly meet with Ms. Alexander immediately.

The meeting occurred in Principal Lilly’s office. Ms. Alexander was presented with Ms. Doucet’s statement, and according to Principal Lilly and Mr. Brown, she admitted to making the statements, although she denied any intent to carry out the acts. Both Principal Lilly and Mr. Brown testified that she stated to them that she was “just playing” and didn’t mean it like that.” However, based upon her admission of having made the comments, Mr. Brown advised her that she was immediately suspended with pay, pending further investigation. He then escorted her from the building. The incident was also reported to the Lafayette City Police Department.

Principal Lilly called the superintendent, Dr. James Easton, to inform him of the allegations that had been made against Ms. Alexander and of the decision to suspend her with pay, pending further investigation. He also provided a written letter to Superintendent Easton, documenting the reporting of the incident and the action taken. According to Principal Lilly, no further investigation was conducted due to Ms. Alexander’s admission that she had made the statements.

Approximately one week later, on January 29, 2007, Principal Lilly sent a letter to Superintendent Easton that recommended Ms. Alexander’s termination. He stated in that letter his recommendation was based not only on the shooting threats Lshe had made but also on her history of exhibiting “hostile” and “strange, erratic behavior,” which included “severe mood swings.” He further stated that Ms. Alexander had previously been involved in conflicts with other staff members, which included verbal altercations and her making threats to do harm. Principal Lilly concluded that Ms. Alexander’s most recent threats against him and the counselor showed that her threats were escalating in severity and constituted unacceptable behavior at the school.

Superintendent Easton spoke with Mr. Brown about the situation and, thereafter, accepted the recommendation to terminate Ms. Alexander. On March 4, 2007, Superintendent Easton issued a letter to Ms. Alexander briefly summarizing Principal Lilly s recommendation that she be terminated and Principal Lilly’s reasons offered in support of his recommendation. Superintendent Easton stated that he concurred and advised Ms. Alexander that he would be recommending to the school board that she be terminated at its regularly scheduled meeting of March 21, 2007. He also advised Ms. Alexander in that letter that she had the option of resigning prior to the date of the school board meeting.

Ms. Alexander did not resign but appeared at the school board meeting with legal representation. While in executive session, the school board voted to terminate her employment. On March 28, 2007, she was informed in writing by the school board’s Human Resources and Risk Management Director, Ramona Bernard, that her employment was officially terminated as of March 21, 2007.

A few months later, Ms. Alexander filed a Petition for Declaratory Judgment and Writ of Mandamus against the Lafayette Parish School Board, seeking reinstatement of her employment and reimbursement of all salary, benefits, and emoluments of employment that had allegedly been withheld from her. She asserted | ¡¿hat she was terminated in violation of the policies and procedures set forth in “File: GCN,” entitled “Nonprofessional Personnel Separation.” The GCN policy sets forth the procedure to be followed when addressing alleged “deficiencies” in the performance of nonprofessional school board employees.

This case was submitted to the trial court for decision based on the briefs, depositions, and exhibits filed with the trial court. The trial court found that the GCN policy did not apply because it did not address the behavior at issue, although the trial court also found that Ms. Alexander had, nevertheless, been afforded the basic due process rights that the GCN policy’s procedures were designed to protect: notice; a chance to respond to charges; the opportunity to resign; a right to have the school board vote on her termination; and notice in writing of the school board’s decision.

The trial court found that, due to the allegations that had been made about Ms. Alexander’s behavior, a different school board policy, as had been argued by the school board, provided the applicable procedure to be followed. That policy is entitled “Allegations of Misconduct Policy” and is also referenced as “File: GAEB.” The GAEB policy addresses the procedure that must be followed when allegations of “misconduct” have been made about any school board employee, regardless of the employee’s professional status. After finding this policy to be applicable, the trial court found that the school board substantially complied with its procedures. Consequently, Ms. Alexander’s claims were dismissed at her sole cost.

Ms. Alexander has appealed, claiming that the trial court erroneously found that the GAEB policy applied to the facts of her case and also erred in finding that she committed “misconduct” as that term is defined by the GAEB policy. Rather, she claims the GCN policy applied, the school board failed to substantially comply | Bwith the procedures set forth therein prior to her termination, and therefore, she was wrongfully terminated.

III.

LAW AND DISCUSSION

Which School Board Policy Applies?

This issue of which school board policy applies presents a question of law, requiring this court to decide whether the trial court was legally correct or incorrect in its determination. See Blalock v. Lord, 05-939 (La.App. 3 Cir. 2/1/06), 927 So.2d 1142, writ denied, 06-1624 (La.9/16/06), 937 So.2d 847 (and cases cited therein). Because these policies are contractual in nature, we are guided by the basic principles of contract interpretation. This means that this reviewing court is bound to interpret them in a manner such that if the words therein are clear, unambiguous, and lead to no absurd consequences, the words must be given their obvious meaning. See id.; La.Civ.Code arts.2046, 2047. The language at issue is not to be disregarded in search of further interpretation or under the pretext of pursuing its spirit. Id.

The GAEB policy that was filed in evidence as a joint exhibit states, in relevant part:

ALLEGATIONS OF MISCONDUCT POLICY
Upon receipt of an allegation of misconduct, the Superintendent or his des-ignee shall promptly:
A. Confer with the principal, administrator, or supervisor of the school, site, or department with which the employee is associated to discuss matters such as the nature of the allegation, whether the performance of the employee has been adversely affected or is likely to be adversely affected, whether others in the school (site) have mentioned this |7alleged incident of misconduct, the likelihood that the allegation has any veracity, and whether the mere fact that the allegation has been made impairs the abilities of the employee to discharge the duties attendant to his or her position; and,
B. Either personally and/or through a designee (which may be the principal, administrator, or supervisor of the affected employee) attempt to resolve the matter by informal consultation with the involved party or parties.
Based upon the preliminary findings of the Superintendent or his designee, the Superintendent shall decide whether the allegation is without substance or a formal investigation into the complaints initiated and/or the employee [sic] suspended. Should it become necessary for an employee to be suspended during the course of the investigation of the allegation(s) of misconduct, the employee will be suspended with pay until a final decision is made. It is to be noted that up to this point, the investigation should be discreet, on a confidential basis and investigatory, not accusatory in nature. Further, no notations in personnel file of the employee in question shall be made regarding the allegation of misconduct should the Superintendent or his desig-nee elect to discard the charges at this juncture. The investigation shall not become accusatory until the Superintendent or his designee is satisfied that there is a substantial basis for the allegation(s).
After the preliminary formal investigation, the Superintendent or his desig-nee shall advise the affected employee of the Superintendent’s preliminary findings. Further, the employee shall be afforded the opportunity to respond to the allegations and advise the Superintendent or his designee of any witness or evidence which may challenge the accuracy of the allegation. Should the Superintendent elect to proceed with punitive measures, then the employee shall be afforded all due process rights specified by law.
If there is a public announcement by the Board that the employee may be disciplined, whether or not there is an accompanying reduction in employee pay, the employee may appear before the school board in an open session, within thirty days after the conclusion of an investigation and prior to Board action, and be given a reasonable time, as determined by the Board, to comment on the | ¡¿investigation and any actions taken or proposed to be taken involving the employee. Nothing in this paragraph shall inhibit the Board from suspending an employee, with or without pay, under appropriate circumstances.
At all times during the investigative procedures the Superintendent or his designee shall strive to obtain the specifics of the allegations of misconduct, including date, time, location, and other details of the alleged offense. The employee against whom the allegations have been made shall be advised, within the parameters of each particular case, of the specifics surrounding the alleged misconduct. The employee may have a representative of his/her choice to appear with him/her at any level of the investigation.
Complaints of misconduct shall be handled as expeditiously as the circumstances surrounding each particular case will allow. Any hearing, formal or informal, before the Superintendent or the Board, shall be conducted with rapidity. Evidence from the employee shall be accepted and accorded due consideration.
For purposes of this policy, the term “misconduct ” shall include the commission of immoral offenses involving students or others, corporal punishment, neglect of duty, incompetency, dishonesty, insubordination, violation of School Board policy, or any other conduct which may call into question the employee’s ability to discharge the duties attendant to his position.
This policy is not intended to supplant any grievance procedures which may be in existence and available to any employee. Further, this policy shall not supersede the employee’s right to formal hearings specified by law including, but not limited to, La.R.S. 17:443, et seq.

(Emphasis added).

The specific GCN policy procedures that were filed as a joint exhibit and are at issue in this case are located in Section II, “Dismissal of other Nonprofessional Personnel:”

The principal recommends in writing to the Director of Human Resources that the employee appear before a committee consisting of the principal, supervisor and the Director of Human Resources or Assistant in Human Resources to discuss the deficiencies.
| fllf improvement or change is not effected after appearing before the committee, a recommendation to terminate the employee shall be made jointly by the supervisor and the principal to the Superintendent in writing.
At the request of the Superintendent, the Director of Human Resources shall inform the employee that he/she is to appear before a committee consisting of the principal, the supervisor and the Director of Human Resources or Assistant in Human Resources at which time the reason(s) for dismissal will be discussed.
At this time, the employee will be given the opportunity to resign. If the employee chooses not to resign, the Superintendent’s recommendation shall be presented to the Board for action. The employee shall be informed in writing of the Board’s final decision.
A copy of all documents pertaining to an employee’s performance shall be placed in the appropriate official personnel file, Human Resources Department, Lafayette Parish School Board. A copy of the above shall also be provided the employee.

(Emphasis added).

Ms. Alexander’s employment came under review by the principal and Area Director solely because of her specific comments to another teacher. Specifically, Ms. Alexander reportedly stated, “I should bring a gun and shoot off [Principal Lilly’s and the counselors’s] fucking heads. I’d rather not have to do that. What I’m saying is if they made me mad enough, I would.” The trial court correctly considered whether these comments constituted “deficiencies” in performance, as addressed by the GCN policy or “misconduct,” which is the subject of the GAEB policy.

The portion of the GCN policy filed as an exhibit in the record does not provide a definition of “deficiency.” However, the testimony offered by school board personnel reasonably supports the trial court’s conclusion that the comments made by Ms. Alexander did not constitute a deficiency in performance that was subject to |inreview under the GCN policy. Superintendent Easton testified that the policy violation committed by Ms. Alexander constituted “misconduct” as set forth in the GAEB policy. Specifically, he testified that Ms. Alexander’s comments fit within the “catchall” definition of “misconduct” set forth in the GAEB policy, which states:

For purposes of this policy, the term “misconduct” shall include the commission of immoral offenses involving students or others, corporal punishment, neglect of duty, incompetency, dishonesty, insubordination, violation of School Board policy, or any other conduct ivhich may call into question the employee’s ability to discharge the duties attendant to his position.

(Emphasis added). Principal Lilly, who worked as Director of Human Resources for the school board in the past, also testified that the GCN policy was not the applicable policy to address the allegations against Ms. Alexander. He testified that the GCN policy is intended to cover employee performance and stated, as well, that Ms. Alexander’s comments constituted “misconduct” as defined by the “catchall” section of the GAEB policy. Ms. Alexander offered no evidence in opposition to these opinions.

The trial court found that the GAEB policy applied because the behavior at issue — comments about doing serious harm to co-workers — constituted “misconduct” as defined by the GAEB policy. We agree. After reviewing the record and each policy, we find that the meaning of the terms “misconduct” and “deficiency” as set forth in the relevant policies are not ambiguous. The trial court did not err in ruling that the GAEB policy, governing employee “misconduct,” applied to the investigation of the allegations that had been made against Ms. Alexander. Therefore, having found that the GAEB policy applied to the facts of this case, we must now determine whether the school board substantially complied with the hiprocedures set forth therein, including affording Ms. Alexander the due process offered by its terms, prior to terminating her.

Substantial Compliance and Due Process

Substantial Compliance

“[T]he administration of the school system is entrusted by the constitution and the legislature to the parish school boards and not to the courts.” Myres v. Orleans Parish Sch. Bd., 423 So.2d 1303, 1305 (La.App. 4 Cir.1982), writ denied, 430 So.2d 657 (La.1983) (citing Chantlin v. Acadia Parish Sch. Bd., 100 So.2d 908 (La.App. 1 Cir.1958)); see also, Harris v. West Carroll Parish Sch. Bd., 605 So.2d 610 (La.App. 2 Cir.), writ denied, 609 So.2d 255 (La.1992). Accordingly, the courts review school board actions for a determination of whether its actions constituted an abuse of its discretion. Harris, 605 So.2d 610. This has been interpreted to mean “where there is a rational basis, which is supported by substantial evidence for the school board’s discretionary determination, the courts cannot and should not substitute their judgment for that of the school board.” Id. at 613 (citing Myres, 423 So.2d 1313; Chantlin, 100 So.2d 908; Baker v. St. James Parish Sch. Bd., 584 So.2d 369 (La.App. 5 Cir.), writ denied, 588 So.2d 1118 (La.1991)).

In our review of the record, we find substantial evidence of the school board’s compliance with the GAEB policy. The GAEB requires, first, that a report of misconduct be made to a principal, administrator, or supervisor who is then required to notify the Superintendent or his desig-nee of the allegations. In this case, it is clear that once Ms. Doucet notified Principal Lilly of the allegations of misconduct against Ms. Alexander, he, in turn, notified Mr. Brown, the Area Director (his supervisor), and, thereafter, Superintendent Ea-ston via telephone and written letter.

| i2The GAEB policy then requires the Superintendent or his designee to promptly confer with the principal or other supervisor of the accused employee to gather pertinent information regarding the allegations so as to determine what, if any, immediate action may need to be taken. The Superintendent or his designee is to also informally confer with the involved parties to attempt a resolution at that time. In this case, Mr. Brown met with Principal Lilly to discuss the report about Ms. Alexander’s comments, and they both met with Ms. Alexander to discuss the alleged behavior.

Based on information obtained at that point, the policy authorizes the Superintendent or his designee to decide whether a formal investigation is needed and/or whether suspension of the employee is necessary during the investigation. The record reveals that after meeting with Ms. Alexander, Principal Lilly and the Area Director advised Ms. Alexander that she would be suspended with pay pending further investigation, and she was escorted off the campus.

The next procedures address guidelines for conducting a formal investigation, including informing the accused employee of the findings and offering the employee a chance to respond with additional information. The accused employee is, thereafter, to be allowed to appear before the school board in open session if there is a public announcement by the school board that the employee may be disciplined in any manner. The facts show that there was no formal investigation conducted after the preliminary, informal investigation conducted by Principal Lilly and Mr. Brown. Principal Lilly testified that no formal investigation was instituted because of Ms. Alexander’s admission to having made the statements, his knowledge of her prior threats made against at least one other employee, and her past involvement in altercations with co-workers. We find no abuse of the | ^Superintendent’s designees’ discretion, which determined that no formal investigation was necessary.

The next actions taken in regard to Ms. Alexander’s employment came from Principal Lilly, who recommended her termination in a written letter to the Superintendent. The Superintendent accepted the recommendation and notified Ms. Alexander in writing, via certified mail, of the recommendation that she be terminated. In that letter, he provided her with notice of the school board meeting during which her termination would be considered and afforded her the opportunity to appear with a representative at that hearing. Although Ms. Alexander’s matter was not addressed in open session, we find that she was properly afforded the notice and opportunity to be heard, prior to her termination, as contemplated by the policy. Consequently, we find no error in the trial court’s determination that the school board substantially complied with the policy’s procedures in this case.

Due Process

Ms. Alexander contends that the trial court’s decision should be set aside because she was not afforded constitutional due process of law prior to her termination. It is important to clarify that Ms. Alexander was not a certified teacher, but was a teacher’s assistant in the computer lab of the high school, bearing the title of Computer Proctor. Consequently, Ms. Alexander did not possess a state or federally-protected property interest in maintaining her employment and, therefore, no entitlement to due process prior to being terminated. Wilhelm v. Vermilion Parish Sch. Bd., 598 So.2d 699 (La.App. 3 Cir.1992); Harris, 605 So.2d 610.

She was, nevertheless, entitled to those rights set forth in the procedures established by the Lafayette Parish School Board in its “Allegations of Misconduct Policy,” also referred to as the GAEB policy. See id. Therein, the school board |14recites its recognition of its employees’ rights to privacy and due process of law and states that its procedures for the investigation of employees accused of misconduct were designed to address those competing interests. Consequently, Ms. Alexander did have a reasonable expectation that she would be afforded due process before termination under the terms of the GAEB policy.

The trial court stated during its oral recitation of its ruling that it found the school board had procedurally afforded Ms. Alexander due process. We agree. Due process of law constitutes, minimally, that any deprivation of life, liberty, or property be protected by notice and an opportunity to be heard. U.S. Const, amends. V, XIV; La. Const, art. 1, § 2. The record provides evidence that Ms. Alexander was afforded due process. She received notice of the allegations against her when she was presented with Ms. Dou-cet’s written statement during her meeting with Principal Lilly and Mr. Brown, the Area Director. She was also allowed to comment on the statement prior to any action being taken. Also, once a decision had been made to terminate her, she received written notice, via certified letter from Superintendent Easton, of the school board meeting during which his recommendation for her termination was to be considered. Ms. Doucet was afforded an opportunity to be heard as well. The record reflects that she attended the school board meeting and was represented by counsel. Accordingly, we find that the trial court’s ruling stating Ms. Alexander was afforded due process is reasonably supported by the record and is not manifestly erroneous.

_biv.

CONCLUSION

The judgment of the trial court, dismissing plaintiff-appellant, Mary Margaret Alexander’s Petition for Declaratory Judgment and Writ of Mandamus, is affirmed. Costs of this appeal are assessed to Mary Margaret Alexander.

AFFIRMED.