author: SUSAN M. CHEHARDY, Judge.

text:
    SUCCESSION OF Lula Mae Johnson BANKS.
    No. 11-CA-26.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 29, 2011.

      Joaquin Shepherd, Attorney at Law, New Orleans, LA, for Plaintiff/Appellant, David E. Banks, Executor of Succession.

      Harold E. Molaison, Attorney at Law, Gretna, LA, for Defendant/Appellee, Marilyn Banks.
    Panel composed of Judges SUSAN M. CHEHARDY, JUDE G. GRAYOIS, and MARC E. JOHNSON.
   SUSAN M. CHEHARDY, Judge.

12This is a dispute over a decedent’s estate in which the executor, who is the decedent’s son, filed suit to recover funds he alleged were wrongfully taken by the decedent’s daughter, his sister. The daughter filed a reconventional demand against the son in his capacity as succession representative, and a third-party demand against the son in his capacity as heir. The judgment awarded a sum of money directly to the son as heir, but did not satisfy the full demands of any party to the suit. We reverse in part, vacate in part, and remand.

FACTS AND PROCEDURAL BACKGROUND

Lula Mae Johnson Banks died on October 26, 2005. At the time of her death she was a resident of Jefferson Parish, Louisiana. The decedent left a testament in notarial form dated February 16, 1973, in which she named her husband, Elliot S. Banks, as the executor of her estate. The dispositive clause of the testament provided, “I leave my entire estate to my children, David E. Banks and Marilyn E. Banks, to be divided among them equally.” Pleadings

On November 17, 2006, the decedent’s son, David E. Banks, filed a petition for appointment of a dative testamentary executor and to probate the decedent’s |slast will and testament. He alleged that Elliot Banks had predeceased the decedent; that David, as a child of the decedent and an heir, desired to be appointed dative testamentary executor; and prayed that the testament be probated and executed. The detailed descriptive list listed the following assets: a life insurance policy valued at $56,441.56; a checking account with a balance of $560.01; and a claim against Marilyn E. Banks “for funds of the decedent held pursuant to a power of attorney (believed to be between $200,000.00 and $500,000.00; further discovery required).” There were no liabilities listed; the total net estate was listed as “in excess of $57,001.56.”

Pursuant to the petition, the court ordered that the testament be admitted for probate, filed, recorded, and executed, and David Banks was appointed dative testamentary executor.

On December 13, 2006, in his capacity as executor, David Banks filed a petition against Marilyn Banks for an accounting and for return of funds. He alleged that the decedent had executed a power of attorney on May 15, 2002, naming Marilyn as her agent and attorney-in-fact. He stated that funds had been withdrawn from the accounts and other holdings of the decedent by Marilyn under the authority of the power of attorney, but that Marilyn possessed and was using funds belonging to the succession.

The executor asserted that the power of attorney granted by the decedent to Marilyn was terminated by the decedent’s death on October 26, 2005. He alleged that Marilyn failed to fulfill with prudence and diligence the mandate she accepted, and that she is responsible to the succession for the loss sustained as a result of her acts and failure to perform to the appropriate standard of care.

[/The executor sought an order directing Marilyn to provide an accounting of her performance of mandate, to deliver to the succession everything she received by virtue of the mandate, to compensate the succession for the loss it has sustained as a result of her failure to perform at the applicable standard, and to pay interest to the succession for sums of money she applied to her own personal use.

On September 28, 2009, Marilyn filed a multipart pleading that included an answer to the petition. In the answer Marilyn denied the allegations of misappropriation and misuse of the decedent’s funds. Marilyn asserted that the decedent had lived with Marilyn exclusively, in Marilyn’s home, from 1986 until the decedent’s death in 2005. Marilyn alleged that in the early years of their co-residency, mother and daughter shared expenses by agreement and informal accounting, but in the later years Marilyn quit working to stay home and provide entirely for her mother, who began suffering from Alzheimer’s.

Marilyn admitted that from May 24, 2002 to November 10, 2004 she received money from her mother, and attached a schedule listing the amounts. She asserted, however, that all the money she received from her mother was in “cognitive remuneration” for the services, room and board Marilyn provided for the care and keeping of her mother in her household, as her mother became increasingly debilitated by Alzheimer’s disease.

The multipart pleading also included an exception of no cause of action, in which Marilyn asserted, “Each and every cash outlay embodied onerous or remunerative donations via manual gift by Mrs. Banks to Marilyn made in consideration of the daily obligations of room, board, care and supervision taken on by Marilyn for the benefit of her mother and in recompense for all such services provided.”

| sIn addition, the pleading included an affirmative defense of extinguishment of the obligation by stipulation pour autrui. Marilyn alleged that she and her brother had made a verbal family agreement several years before their mother’s death, in which they stipulated that as their mother’s sole children, they jointly owed their mother a duty of care and supervision for her remaining years of life threatened due to her failing health and onset of Alzheimer’s; that Marilyn would not independently work, but would provide daily care and supervision for their mother in Marilyn’s own household without the necessity of nursing home assistance as long as physically possible; and that in return for the benefit received by David in Marilyn’s performance of their joint obligation of daily care to their mother, David would allow Marilyn to keep all funds in their mother’s estate, regardless of their source.

Marilyn asserted that all alleged actions for accounting by her and for the return of funds received by her from their mother were extinguished by operation of the family agreement in consideration of all the services provided by Marilyn for their mother.

The multipart pleading further raised the affirmative defense of estoppel, alleging that Marilyn stopped all outside gainful employment in August 1994 in full, complete and potentially detrimental reliance on the family agreement, and devoted her life exclusively to the daily care of their mother until December 2004, when their mother entered a nursing home, where she resided until her death on October 26, 2005. Marilyn asserted that any action against her now for accounting and return of funds should be estopped for equitable reasons of unjust enrichment flowing to David and to the decedent’s estate at the sole expense of Marilyn, due to her detrimental reliance upon and performance of the family agreement.

| r,The multipart pleading also included a Reconventional demand against David in his role as dative testamentary executor. In the event the court determined that Marilyn should be cast in judgment on the main demand, Marilyn sought a money judgment against the estate in compensation for her daily services, room and board provided her mother prior to death as alleged in the pleading, either as damages for breach of contractual agreement for services rendered between Marilyn and her mother, or on open account or, alternatively, for unjust enrichment.

In addition, Marilyn made a third-party demand against David in his individual capacity, asserting that if she is cast in judgment in the main demand and her reconventional demand against the estate is denied, she is entitled to a money judgment against David personally in the amount of one-half or his virile share of any and all funds restored by judgment to the estate of the decedent. She alleged it is payment due her from David for her satisfaction of their joint obligation to care for their mother, owed one-half by him on the basis of his breach of the family agreement, the laws of contribution and indemnification between joint and solidary obli-gors or, alternatively, unjust enrichment.

Finally, to the extent that David either denied or sought abrogation of the family agreement, and that fraud or deceit might be proven at trial in his inducement of Marilyn to exclusively perform services for their mother as per the agreement without consideration for her services, Marilyn sought a money judgment for damages and attorney’s fees against David, and dismissal of the instant action. Attached to Marilyn’s pleading as Exhibit A was a list of various disbursements to Marilyn from the decedent’s checking account and a certificate of deposit to Marilyn (as well as checks to two other relatives described as “Gift”), totaling in all $75,050.00.

17Trial

The matter went to trial on February 26, 2010 before a judge sitting without a jury.

The executor and Marilyn each had an expert forensic accountant to testify on their behalf.

The executor’s accountant, Kernion Schafer, testified as follows: At the time the power of attorney was executed on May 15, 2002, the decedent had a savings account and nine certificates of deposit, totaling $176,577.61. Between May 16, 2002 and August 21, 2006, there were deposits totaling $31,043.15. The total cash on hand over that period was $207,620.76. Describing check payments not in dispute, Schafer said there were authorized payments of $29,063.53, $2,135.96 in checks written to Marilyn and described as reimbursements, which Schafer said appear to be authorized, plus equal payments of $16,000.00 each to Marilyn and to David, for a total of $63,199.49 in authorized payments. He testified there were disputed payments of $11,000.00 each to Maxine Ferry and Ed Ferry on May 24, 2002, totaling $22,000.00, and what he described as unequal payments to Marilyn totaling $35,026.00. His report also listed as disputed a payment of $100.00 to Donald Banks (David’s son); payments of $9,686.29 to Marilyn for household expenses; and $1,851.02 in “unknown payments disbursed by Marilyn,” totaling $68,663.31 in check payments in dispute.

Marilyn’s expert accountant, Jan Bate-man, testified her findings were basically in accord with Schafer’s testimony as to accounts on May 15, 2002. Bateman discovered no gross discrepancies between her findings and Schafer’s findings. Unlike Schafer’s report, her report was not intended to categorize expenses as authorized or unauthorized; the purpose of her report was to show where the money came from and where it went.

| sBateman calculated miscellaneous income from May 15, 2002 to September 13, 2005, at $30,304.00, including Social Security, and disbursements through September 13, 2006 at $207,620.76.

She specified that in 2003 an annuity was purchased for $55,757.00, to which both David and Marilyn were made beneficiaries. In other payments, David received a total of $16,200.00, including a $100 check to his son, Donald Banks, which was a donation. There was $14,951.96 listed as funeral costs. There also was a Bank One certificate of deposit in the amount of $10,000.00 they have not been able to trace. Bateman said she could not trace that $10,000.00 into Marilyn’s accounts, and could not determine what happened to that certificate of deposit.

Bateman determined that funds paid to Wynhoven were directly for the decedent’s care, as were health insurance payments to Blue Cross and payments to Campo Pharmacy. Payments for “home maintenance” were for repairs to the air conditioning system, refrigerator repair, and washing machine in Marilyn’s home; payments described as “auto expenses” were for Marilyn’s vehicle. There was a $2,200.00 check described as “emergency cash” written pri- or to Hurricane Katrina. There were checks listed as unknown because they could not get copies of the canceled checks to see who they were written to or what they were for. The $11,000.00 checks written to Maxine Ferry and Edward Ferry were endorsed, then deposited in Marilyn’s account.

Bateman put together a statement to quantify the value of Marilyn Banks’ services to the decedent. She calculated it two ways. First, using the room-and-board and assistance method, she valued the entire service at $133,707.00 (room- and-board = $30,027.00; cost for a sitter at nine hours a day for 960 days as | fl$103,680.00). Second, using the cost saved by the decedent’s not going into a nursing home, the value of Marilyn’s services was $94,000.00, calculated at $97.00 per day for 970 days.

Bateman said her calculations differed from Schafer’s as to total donations by the decedent to Marilyn. Bateman calculated that figure as $75,050.00 in money that was given but not identified for a specific purpose.

Marilyn Banks testified that her father died in 1983, and her mother moved in with her a few years later, probably around 1986-87. At that time her mother’s health was fair and she was capable of living independently. She moved in with Marilyn because she was having trouble with neighbors. Marilyn said she and her mother got along very well.

When her mother came to live with her, Marilyn was working, but in 1995 she was laid off from her job. Before getting another job, Marilyn decided to take classes to improve her computer skills. Toward the end of the school course, it became more apparent that her mother could not stay alone.

Her mother first began having serious problems in 2000 or 2001 and the symptoms developed gradually. By May of 2002 her mother had developed some mental deterioration.

According to Marilyn, David contacted them occasionally, but did not make regular visits to their mother. Marilyn said she gave him information about their mother’s medical condition, but he did not seem very interested.

Originally them mother wrote her own checks, but when she got to the point that she could not write checks comfortably, Marilyn would write the check and her mother would sign it. Eventually her mother put Marilyn’s name on the checking account so she could sign her checks for payment of her bills. Marilyn testified that David insisted that Marilyn get a power of attorney for them mother.

|inMarilyn testified that when the power of attorney was signed her mother had $176,000.00. While her mother lived with her, they split the cost of utilities and divided the grocery bills. Marilyn said she started taking money out of her mother’s accounts soon after she got the power of attorney, at David’s insistence. He told her to move as much money out of their mother’s name as possible, as quickly as possible, to keep it from being spent toward nursing homes.

Marilyn testified that Maxine Ferry was her mother’s sister and Edward Ferry was her mother’s brother-in-law. Two checks of $11,000.00 each were paid to them, but after they endorsed the checks, they were deposited into one of Marilyn’s accounts, in the amount of $22,000.00. Marilyn said she also made payments to herself, but could not recall how many, and that her mother was aware of these transactions. Marilyn testified she did not hide anything from her mother.

Marilyn testified further that David was very interested in what was going on with their mother’s money; Marilyn said she told him “most of the time” when she moved funds.

In December 2004, Marilyn said she put her mother in a nursing home on the doctor’s recommendation because she could not give proper care since her mother had a feeding tube surgically implanted in her stomach, and she required a catheter.

Marilyn testified she wanted to take care of her mother, and would have allowed her mother to live with her even if she did not have any money.

Marilyn acknowledged she was aware that her mother’s will leaves her entire estate to her two children, to be divided equally between them. She said her mother was told that due to the forced heirship laws of Louisiana, she had to leave her estate to both heirs. According to Marilyn, her mother regretted having to do it that way, but was under the impression she could not change the will.

| n Marilyn said her mother took out an annuity in 2003 and designated both Marilyn and David as equal beneficiaries. Marilyn testified that her mother told her “any number of times” that “the one that takes care of her should be the one to benefit” and that she wanted Marilyn to have what she had left in her estate. Marilyn said her mother told her the money was to be hers to keep. She admitted her mother never wrote down that desire.

According to Marilyn, she and David had a “gentlemen’s agreement.” He told Marilyn he did not want “one nickel” of their mother’s money after she died and that Marilyn should have it for taking care of her all those years. The agreement was never written down. Marilyn said she thought he was “a man of his word and would live up to that.”

Marilyn testified she paid for some things at her house directly from her mother’s accounts, such as car repairs. She said she furnished transportation to her mother from the early 1980s on, after her parents gave up their car. After Marilyn stopped working outside the home to care for her mother, Marilyn said, her mother wanted to put in more for expenses.

Marilyn said that after their mother died, she gave David a watch that he had given their mother for Christmas one year, but he did not express any interest in their mother’s personal belongings.

Marilyn admitted she bought burial policies for her mother and herself in July 2002 and the total amount was around $15,000. According to Marilyn, her mother wanted to pay for Marilyn’s policy and did not ask for reimbursement. Marilyn said her mother offered David the same thing, but he declined, saying he was going to be buried with his wife’s family.

Marilyn testified further that as her mother became more infirm, her services to her mother included being there 24 hours a day, seven days a week; bathing her, | 12cutting her hair, washing and ironing her clothes, paying the bills, preparing meals; taking her to the doctor, the dentist, the bank, and visiting. Her mother depended on her for transportation. As she became more disabled, Marilyn had to hand-feed her at the table, as well as change her bed clothes and gowns when she soiled herself. Her needs progressed as the disability progressed. When the disability was really severe she became wheelchair-bound, which Marilyn described as almost like having a baby to care for. Marilyn said she could not see putting her mother in a nursing home, however, when Marilyn could care for her as well or better than a sitter, until the catheter and the feeding tube became issues.

Marilyn based the figure for calculating the cost of a sitter on a sitter she hired in 2002 to sit with her mother at the hospital, as well as a sitter whom Marilyn hired to be with her mother at home for six weeks when Marilyn was still working. Marilyn said the calculation of the value of her services for 980 days, when Marilyn took care of her twenty-four hours a day, seven days a week, covered from the time her mother was being cared for in the hospital until she went into Wynhoven.

Marilyn said the only exceptions were approximately two-and-one-half hours on Tuesdays and Thursdays, when David would sit with their mother so Marilyn could go shopping. Marilyn said he did this “if it was convenient.”

Marilyn said that when money was transferred to her account, she did not necessarily feel she owned it; it was moved out of her mother’s account so it wouldn’t go to the nursing home. Marilyn reiterated that they had a family agreement that whatever was left after their mother passed away would be for Marilyn for taking care of her. Marilyn insisted that agreement was mentioned more than once between her, her mother, and her brother.

| ^Marilyn said when she moved money and deposited money into her own account, her mother knew that the money was going to her. According to Marilyn her mother said, “[I]f Marilyn takes care of me I want her to have what’s left.” Marilyn said her mother stated that unequivocally “any number of times” when her mind was clear, before the dementia. Marilyn said David knew about it, and her aunt and uncle knew about it also, but they died before the lawsuit came to trial. Marilyn said she mentioned it to her friend Geraldine also.

Marilyn said she received no other compensation for the services she provided for her mother. She also testified that David was lying when he denied entering into this agreement with her.

David Banks testified that his mother’s health was very poor for the last three years of her life; she had Alzheimer’s and was either in a wheelchair or in bed. He said when his mother first moved in with Marilyn, she did not need to be taken care of. She began needing care around the time the power of attorney was written. He thought the power of attorney would enable Marilyn to get their mother proper medical care or whatever else she needed to help their mother, if she were to be admitted to a hospital or need other medical care. Their mother was not competent enough to take care of her own business. At that time he was still working on a part-time basis and didn’t know when he would be out of town.

David described Marilyn as “a very frugal person.” He said that is one reason he trusted her with the power of attorney. David testified that if Marilyn had been unable to care for their mother, he would have cared for her and would not have expected compensation for it. David said he would consider it a personal responsibility to look after his mother’s care. He said their mother lived with Marilyn because they had been close all through the years; they were good friends; 114and Marilyn lived alone in a three-bedroom home, so it was assumed their mother would go with Marilyn.

David said that he visited his mother while she lived at Marilyn’s home. Once in a while he would bring her fried chicken or would take her out to eat. In the last years, when she was confined to a wheelchair or bed, he went to Marilyn’s a couple of days a week to sit with their mother while Marilyn ran household errands.

David testified he had no conversation whatsoever with his mother or with Marilyn about Marilyn keeping their mother’s money. He said he always thought they would split it equally, as provided in the will. He denied that he ever said anything about not wanting a nickel of the money or that it was Marilyn’s for taking care of their mother.

He admitted he knew Marilyn was moving their mother’s assets before her death. He said he found that out about the time the power of attorney was signed. About six months after their mother died he asked Marilyn about receiving an inheritance, but Marilyn did not give him an answer right away. About a month later she called and told him she had decided she was not going to give him anything. David denied that Marilyn ever discussed with him any of the specific transactions in which she was taking money out of mother’s account and placing it in her own account. He said he never asked her for an accounting. He did not recall his mother ever offering to pay for his funeral services.

David said he believes his mother definitely intended for him to get an inheritance, but he has received nothing other than a share of the annuity and the checks his mother wrote him when she was alive, totaling $20,000.00.

David agreed that his sister did everything for their mother: drove her where she had to go; bought food for her; fed her; cleaned her; waited on her hand and |1sfoot. He said they never discussed her being paid for it, however, he feels they had an obligation to take care of their mother.

He never offered to take his mother into his house because his mother never got along with his family. If his mother had needed care and had to live somewhere else, he would have let her stay in his home. David concluded, as long as Marilyn was going to take care of her, why would they relocate her?

The purpose of the power of attorney was primarily so Marilyn could handle their mother’s medical needs and also her finances. He understood Marilyn would be their mother’s sole caretaker.

David’s wife, Joann Banks, testified David never said anything to her about agreeing that Marilyn would get all their mother’s money. Joann said David thought he was going to get half. Joann testified that if David’s mother was in need she would have felt that David owed her an obligation to take her into their house; if your mother is in need you should honor your mother and father; you should take care of them and not expect anything in return. She agreed that Marilyn took care of her mother and that Marilyn and the decedent were friends: “They were always together.”

Geraldine Wendt testified she has been a close friend of Marilyn since they were in junior high school. She stated that Marilyn told her she wanted to try and keep her mother at home, because there were so many bad stories about nursing homes. Marilyn told Wendt she really wanted to take care of her mother at home, but she did not know if she would be able to do it financially.

According to Wendt, Marilyn told her that David came over and told her that he did not want a nickel of the money. She remembered that Marilyn made a special call to her, because she was surprised at her brother offering to let her use her mother’s finances so she could keep her at home and not have to go back to |16work. Wendt said that conversation took place two or three years before Hurricane Katrina.

Wendt said she understood that Marilyn was not returning to work so she could stay home with her mother. Now Marilyn is unable to work because she has cancer and a lot of disabilities as a result. Wendt said she often witnessed the things Marilyn had to do to take care of her mother. She would feed her, clean her, or do housework.

Wendt testified further that she has never known Marilyn to do anything dishonest or untrustworthy; she would entrust her own affairs to Marilyn. Wendt admitted, however, that she never witnessed either the decedent or David telling Marilyn it was okay to take the money.

Post-Trial Rulings

The court took the case under advisement and rendered judgment on March 23, 2010. The court ordered Marilyn Banks to compensate David E. Banks in the amount of $29,000.00, adding, “This award of $29,000 includes payment for all losses sustained and is inclusive of interest.” The judgment made the parties responsible for their own respective attorney’s fees and costs.

On April 9, 2010, David Banks filed a motion for written reasons for judgment. On April 13, 2010, Marilyn Banks filed a motion for new trial.

On June 23, 2010, after a hearing, the court denied the motion for new trial and stated oral reasons for her ruling, as follows:

I’ll just go on the record to say I think it was Ed or Maxine who received $11,000 each ... and that money was given back to the female, Mr. Molaison’s client in the case.... But she received an $11,000 payment ... back from Ed and Maxine, and then $10,000, and I have half here so I’m assuming there were two $11,000 payments....
117If I remember correctly, there were two $11,000 payments. And then the Certificate of Deposit, $10,000 was half of the Certificate of Deposit. It must have been a $20,000 Certificate of Deposit, I’m assuming. You guys can go back and look at this and see if it makes sense to you....
And then I saw that Ms. Marilyn received two $4,000 lump sums, so I went on and gave the brother $8,000 so that they were treated equally.
Now, everything else I kind of felt that she was a[sic] caring for her mother and if she had to replace the AC at her house, well, so be it. If she [had] to repair her car, so be it, since her mother was living with her. I did not consider those numbers. Whatever she spent on that was spent on that, but the extra money, the Certificate of Deposit, the amount to Maxine and then the payment that Marilyn received, these lump sum payments, I tried to give Mr. Banks, her brother, the same equal amounts. That’s how I came to the $29,000.
I think there were two $11,000 payments or a Certifícate of Deposit for $20,000 so I gave her half — -I gave her ten and I gave him ten. The 11,000, I think there were two $11,000 payments. I gave her 11,000 and gave him 11,000. And then the $4,000 payments that she received I gave him two $4,000 payments to equal the 8,000 and that’s how I came to the $29,000.
[LJooking at it and considering what she had done for her mother and caring for her mother, I felt that she had extra expenses, which, you know, is what happens. I didn’t feel that she deserved everything. There was nothing to indicate that the mother wanted — there may have been some testimony but I didn’t....
The lump sum, I was trying to make sure each party got the lump sum payments and then everything else I felt like was just money she needed to care for her mother....

On the same date, pursuant to the executor’s request, the court issued written reasons for judgment, which stated in pertinent part as follows:

After considering the law, testimony, and submitted exhibits this Court determined that Defendant, Marilyn Banks, shall compensate Plaintiff, David E. Banks, in the amount of twenty-nine thousand dollars ($29,000). This award of $29,000 includes payment for all losses sustained and is inclusive of interest. Further, [ iseach party is responsible for their respective attorney’s fees and costs of these proceedings. This Court now provides the following written reason:
The following calculation is how the Court arrived at $29,000:
—$11,000 was ½ of the amount paid to Ed and Maxine
—$10,000 was ½ of the Certificate of Deposit
—$8,000 was the unequal payment to Marilyn Banks
$29,000 TOTAL AWARD

On November 4, 2010, the court issued amended written reasons for judgment as follows (added language in italics):

After considering the law, testimony, and submitted exhibits this Court determined that Defendant, Marilyn Banks, shall compensate Plaintiff, David E. Banks, in the amount of twenty-nine thousand dollars ($29,000). The remainder of the unauthorized disbursements was used to purchase the certificates of deposit and for ordinary automobile and household expenses expended for the care of Lula Mae Johnson Banks. This award of $29,000 includes payment for all losses sustained and is inclusive of interest. Further, each party is responsible for their respective attorney’s fees and costs of these proceedings. [Emphasis added.]
The following calculation is how the Court arrived at $29,000:
—$11,000 was ½ of the amount paid to Ed and Maxine
—$10,000 was ½ of the Certificate of Deposit —$8,000 was the unequal payment to Marilyn Banks
$29,000 TOTAL AWARD

ARGUMENTS

David appeals in his capacity as Dative Testamentary executor. He makes the following assignments of error:

I.The trial court committed legal error in awarding one half of the amount of the improper transfers to |inDavid Banks, personally, when he was not a party to these proceedings, instead of awarding the full amount to the Succession who was the Plaintiff in this proceeding.
II.The trial court committed legal error in effectively ordering that the judgment shall not bear any interest.
III.The trial court committed manifest error in its calculation of the judgment, particularly its finding that the amount of unequal payments to Marilyn Banks was $8,000.00.

Marilyn answered the appeal and makes the following assignments:

1. The Trial Court erred in rendering Judgment against Marilyn Banks and not determining that the Main Demand of David Banks for Accounting and Return of Succession Funds was extinguished by Inter Vi-vos Payment made in accordance with valid Onerous and Remunerative Donations from the Decedent to her daughter, Marilyn Banks in return for services rendered.
2. The Trial Court erred in rendering Judgment against Marilyn Banks and not determining that the Main Demand of David Banks was extinguished or estopped by Specific Performance of the Stipulation Pour Autrui between Marilyn and David.
8. The Trial Court erred in not rendering Judgment for Marilyn Banks upon her Reconventional Demand against the estate of Lula Banks for the value of services rendered the decedent by Marilyn Banks as Succession creditor or alternatively under Unjust Enrichment.
4. -The Trial Court erred in not rendering Judgment for Marilyn Banks upon her Third Party Demand against David Banks for the value of services rendered the decedent by Marilyn Banks as contribution for services rendered a needy parent or alternatively under Unjust Enrichment.

_yLAWAND ANALYSIS

Executor’s Assignments of Error

No. I: Award To David Banks Individually Rather Than to David Banks as Executor

A judgment cannot determine rights or award relief to persons or entities who are not parties to the litigation. La. C.C.P. art. 1841; Burfict v. Mafia / “Bad” Masons, 07-466, p. 4 (La.App. 5 Cir. 11/27/07), 973 So.2d 809, 811; Ruttley v. Lee, 99-1130, p. (La.App. 5 Cir. 5/17/00), 761 So.2d 777, 788, writ denied, 2000-1781 (La.9/22/00), 768 So.2d 1287.

David Banks as an individual is not a party to the main action between David Banks as executor and Marilyn Banks. David Banks was not a plaintiff in his individual capacity, but appears in the lawsuit as an individual only as defendant to Marilyn’s third-party demand.

Any judgment in the main demand must be awarded to the executor as succession representative.

Except as otherwise provided by law, the succession representative appointed by a court of this state is the proper plaintiff to sue to enforce a right of the deceased or of his succession, while the latter is under administration. The heirs or legatees of the deceased, whether present or represented in the state or not, need not be joined as parties, whether the action is personal, real, or mixed.

La. C.C.P. art. 685.

Further, the succession representative is a fiduciary with respect to the succession, and has “the duty of collecting, preserving, and managing the property of the succession in accordance with law.” La. C.C.P. art. 3191.

A dative testamentary executor as an individual is a separate and distinct person from the dative testamentary executor as an official. Hargrave v. Turner Lumber Co., 194 La. 285, 193 So. 648 (1940).

1⅞1 Accordingly, the trial court erred in awarding judgment to David Banks individually, and that portion of the judgment is vacated. On remand the court is ordered to make any award in favor of the plaintiff in the main demand payable to David E. Banks as dative testamentary executor.

No. II: Award of Interest on Judgment

The judgment states, “This award of $29,000.00 includes payment for all losses sustained and is inclusive of interest.” That is clearly not the case, however. The court’s itemization in the amended written reasons for judgment makes it obvious that the award includes no component of interest. To arrive at an award of $29,000.00, the court added unauthorized payments of $11,000.00, $10,000.00, and $8,000.00, which add up to $29,000.00 exactly. Although the judgment states interest is inclusive, the court effectively denied an award of interest.

La. C.C.P. art. 1921 provides, “The court shall award interest in the judgment as prayed for or as provided by law.” Thus, when a party prays for an award of interest in a pleading seeking a monetary judgment, the court lacks discretion to deny interest on the award. Aupied v. Aupied, 09-636, p. 7 (La.App. 5 Cir. 3/9/10), 38 So.3d 899, 904. Modification of a judgment to include legal interest may be made pursuant to appeal. Dufrene v. Duncan, 93-0403, p. 6 (La.App. 1 Cir. 3/11/94); 634 So.2d 19, 22.

“The mandatary is bound to deliver to the principal everything he received by virtue of the mandate, including things he received unduly. The mandatary may retain in his possession sufficient property of the principal to pay the mandatary’s expenses and remuneration.” La. C.C. art. 3004. “The mandatary owes interest, from the date used, on sums of money of the principal that the mandatary applies to his own use.” La. C.C. art. 3005; La. R.S. 13:4203.

| j>?The trial court erred in failing to award interest properly on the amount of the judgment. Accordingly, the judgment is vacated as to the interest award. On remand, the trial court is instructed to provide for a separate award of interest properly calculated on the principal amount of any award granted.

No. Ill: The Trial Court’s Calculation of “Unequal Payments”

We note, first, that for purposes of this appeal the executor concedes the trial court did not err in excluding from its calculations funds that were spent on Marilyn’s household and automotive expenses. That was covered by the court’s statement, in the amended written reasons for judgment, “The remainder of the unauthorized disbursements was used to purchase the certificates of deposit and for ordinary automobile and household expenses expended for the care of Lula Mae Johnson Banks.”

The plaintiffs expert, Kernion Schafer, testified that checks Marilyn wrote to herself that were disputed, as well as the cost of the prepaid funeral plan for Marilyn, which was paid from the decedent’s funds, totaled $35,026.00. That figure did not include the $11,000.00 payments each to Ed Ferry and Maxine Ferry that were returned to Marilyn, nor the certificates of deposit that Marilyn liquidated, which totaled $20,000.00.

Some of the figures the trial court calculated do not square with the evidence, however. The court awarded $29,000.00, comprising $11,000.00 as half the amount of the donations to the Ferrys; $10,000.00 for half the value of liquidated certificates of deposit; and $8,000.00 to match an unequal payment to Marilyn. The $8,000.00 figure is confusing and does not match any of the totals given by the accountants, although that number does match two separate payments | ^Marilyn made to herself in December 2004 of $8,000.00 each. The court did not refer to ten other checks that Marilyn wrote to herself.

The executor argues that any award to the succession must be for the whole amount improperly withdrawn by Marilyn from the decedent’s accounts, rather than for half the amount. The succession is represented by the executor, and at issue was the gathering of assets alleged to be improperly sequestered by Marilyn. It was error for the court to leap over the issue at hand to “equalize” payments to David as an individual. Rather, any amounts owed the succession should be returned in toto to the executor for distribution.

Due to confusion, however, created by the trial court’s calculations when compared with the various figures in evidence and considering the reasons for judgment, we vacate the award and remand for an evidentiary hearing in order for the trial court to recalculate any award, and consider the issues raised by Marilyn, infra.

Marilyn’s Assignments of Error

No. 1: Were the Funds Marilyn Took Onerous I Remunerative Donations from the Decedent to Her?

No. 2: Was There a Stipulation Pour Autrui That Estops the Executor from Demanding Return of the Funds?

No. 3: Reconventional Demand for Services Rendered by Marilyn and/or for Unjust Enrichment

No. 4: Third-Party Demand Against David Banks for Half the Value of Services Rendered by Marilyn to a Needy Parent and/or for Unjust Enrichment

The trial court did not specifically discuss any of the above issues raised by Marilyn’s pleadings. Where a judgment is silent on an issue raised at trial, it is presumed that the trial court rejected it. Aupied, 09-636 at 7, 38 So.3d at 904.

_J^By implication, therefore, the trial court rejected Marilyn’s defenses of onerous / remunerative donations and stipulation pour autrui and Marilyn’s demands to recover the value of her services rendered.

In both her testament and the annuity policy purchased in 2003, the decedent made Marilyn and David equal beneficiaries. On the bank accounts and some of the financial instruments, however, Marilyn was listed as co-owner with the decedent. In addition, Marilyn was granted power of attorney.

In denying the motion for new trial the trial court stated,

[Considering what she had done for her mother and caring for her mother, I felt that she had extra expenses.... I didn’t feel that she deserved everything. ... I was trying to make sure each party got the lump sum payments and then everything else I felt like was just money she needed to care for her mother.

Thus, the trial court avoided addressing the factual issues relating to Marilyn’s claims.

In reviewing the factual findings of a trial court, an appellate court is limited to a determination of manifest error. Hill v. Morehouse Parish Police Jury, 95-1100, p. 4 (La.1/16/96), 666 So.2d 612, 614.

We find it was manifest error for the trial judge to ignore the issues raised by Marilyn and simply to “make sure each party got the lump sum payments.” The court failed to address whether Marilyn proved her entitlement to additional monies under the grounds raised in Marilyn’s pleadings. Further, the figures listed by the court in the judgment do not accurately reflect the accounting evidence.

Accordingly, we remand for an eviden-tiary hearing, in which the trial court is directed to address the issues raised in Marilyn’s pleadings, and to make any awards properly equate with the evidence.

J¿¿DECREE

For the foregoing reasons, the judgment is reversed as to the award in favor of David E. Banks individually. The judgment is vacated in all other respects and the case is remanded for an evidentiary hearing in accordance with the views expressed in this opinion. Costs of this appeal are assessed equally between the parties.

REVERSED IN PART, VACATED IN PART, AND REMANDED

      . Hereafter David Banks is referred to as "the executor” when appearing in that capacity, and as "David” when appearing in his personal capacity. Marilyn Banks is referred to as "Marilyn.”

      . Marilyn testified the "funeral costs” figure was for the purchase of two pre-arranged funeral plans, for the decedent and for Marilyn. See Marilyn's testimony, infra.

      . We note the court erroneously referred to purchase of certificates of deposit, when the only purchase was of an annuity. No certificates of deposit were purchased while Marilyn had power of attorney. The annuity was payable to both Marilyn and David equally.


source: Caselaw Access Project

author: CLARENCE E. McMANUS, Judge.

license: Public Domain

text:
    STATE of Louisiana, DEPARTMENT OF SOCIAL SERVICES, in the Interest of A.D. v. Donald GLOSTER.
    No. 10-CA-1091.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 29, 2011.

      Mark D. Kuss, Attorney at Law, Metair-ie, LA, for Defendant/Appellee.
    George V. Perez, Jr., Attorney at Law, New Orleans, LA, for Plaintiff/Appellant.
    Panel composed of Judges CLARENCE E. McMANUS, FREDERICKA HOMBERG WICKER, and MARC E. JOHNSON.
   CLARENCE E. McMANUS, Judge.

|2Ponald Gloster appeals the juvenile court’s award of child support to Laciana Davis, on behalf of the minor child, A.D. For the reasons which follow, we affirm the court’s judgment.

STATEMENT OF THE CASE

On April 27, 2010, the State of Louisiana, Department of Social Services, through the Jefferson Parish District Attorney, filed a Motion to Modify Support on behalf of Laciana Davis for the minor child, A.D., against the father, Donald Gloster. The State alleged more than three years had past since child support was last set.

On August 20, 2010, a hearing was held before a hearing officer. The District Attorney presented a Family Support Order Recommendation for Judgment seeking to have it declared the judgment of the court. Gloster and Davis both presented pay stubs as proof of their current income. Gloster was employed by Noranda Alumina, L.L.C. Davis was employed by the Jo Ellen Smith Convalescent Center. Based on the proof of income presented, the hearing officer prepared an obligation worksheet and determined Davis’ monthly income to be $3,035.00 per month and Gloster’s income to be $5,988.00 per month. At that time, Gloster was receiving overtime pay for an average of 94 overtime hours per month. Based on these income findings, the hearing officer found the total basic monthly child support obligation was $1,180.30, according to the schedule set |aforth in LSA-R.S. 9:315.2(D). The hearing officer further found Gloster responsible for 66.36% of the monthly child support obligation and ordered him to pay $783.25 for child support plus 5% court costs per month. This award was made retroactive to the filing date of April 27, 2010. Gloster disagreed with the support recommendation because it included overtime compensation in the calculation of income and support.

A disagreement hearing was then held on September 20, 2010. Gloster testified and presented a letter from the human resource manager for his employer, along with payroll reports to demonstrate his income. The juvenile court noted that the letter from Gloster’s employer and payroll reports indicated that he did receive pay for overtime hours and the number of hours increased in April and then decreased in August. Gloster’s employer explained this Ghange in a letter to the court, stating his overtime hours averaged 94 hours per month from March through July 2010 and dropped to 54 hours for the month of August. The letter further provided that his September overtime hours were trending lower and the reason for the decrease in overtime hours was the filling of open positions by the end of July. Additionally, the employer stated there is no guarantee of overtime hours nor is the past a predictor of the future.

In accordance with the payroll reports, employer letter, and testimony of Gloster, the juvenile court determined Gloster’s income, including overtime, from April 27, 2010 through August 30, 2010 was $5,998.00 per month. Based on this income, the juvenile court ordered Gloster to pay child support of $783.00 per month from April 27, 2010 until August 30, 2010.

Further, the juvenile court determined Gloster’s income to be $4,272.00 per month from September, 2010 forward, based on the decrease in his overtime hours. The court ordered child support of $598.00, beginning in September 2010 forward. |4The juvenile court ordered the child support retroactive to the date of filing, April 27, 2010. The juvenile court also ordered the State to calculate arrears using the two different amounts of support awarded. The judgment was signed by the juvenile court on September 27, 2010.

Laciana Davis, the mother of the minor child, now appeals the juvenile court’s judgment arguing the juvenile court erred in dividing the income of Gloster into separate periods of April 27, 2010 to August 2010 and September 2010 forward, in order to calculate child support. Davis argues Gloster’s income should have been determined using only his amount of income as of April 27, 2010, the date of filing of the motion to modify support, which included overtime. She contends his income should not have been separately calculated using his income with less overtime. For the reasons which follow, we affirm the juvenile court’s judgment.

DISCUSSION

The trial court’s discretion in setting the amount of child support is structured and limited. State, Dept. of Social Services ex rel P.B. v. Reed, 10-410, (La.App. 5 Cir. 10/26/10), 52 So.3d 145, writ denied, 2010-2611, (La.2/18/11), 57 So.3d 333. This obligation must be administered and fairly apportioned between parents in their mutual financial responsibility for their children; toward that end, guidelines balance the needs of children with the means available to parents. Id. The standard of review in a child support case is manifest error. Generally, an appellate court will not disturb a child support order unless there is an abuse of discretion or manifest error. Id.

The guidelines for determination of child support are set forth in LSA-R.S. 9:315, et seq. The schedule of basic child support obligations contained in LSA-JR.S.5 9:315.19 relies on the combined adjusted monthly gross income of the parents. According to LSA-R.S. 9:315 C(3)(a), gross income is defined as follows:

(3) “Gross income” means:
(a) The income from any source, including but not limited to salaries, wages, commissions, bonuses, dividends, severance pay, pensions, interest, trust income, recurring monetary gifts, annuities, capital gains, social security benefits, workers’ compensation benefits, unemployment insurance benefits, disability insurance benefits, and spousal support received from a preexisting spousal support obligation;
(d) As used herein, “gross income” does not include:
(iii) Extraordinary overtime including but not limited to income attributed to seasonal work regardless of its percentage of gross income when, in the court’s discretion, the inclusion thereof would be inequitable to a party.

In accordance with this statute, the court may exclude extraordinary overtime from the calculation of gross income. The court must determine if the overtime is extraordinary and, if so, whether or not the inclusion of the extraordinary overtime in the calculation of gross income would be inequitable to any party.

On appeal, Davis argues the evidence presented did not establish that the overtime being included in the gross income was extraordinary, therefore, it should be included in calculating Gloster’s income from the date of filing the motion to modify until another motion or rule is filed to decrease the amount of support. Davis argues that Gloster did not establish that the overtime being included in his income was outside his job requirement, voluntarily undertaken for a limited purpose, or not likely to happen in the future, therefore, it should be included in calculating of his income.

Davis further argues that awarding support for two different time periods is a deviation from the child support guidelines and if the court wishes to deviate, it | fimust follow LSA-R.S. 9:315.1(B)(1). Davis contends the court deviated from the guidelines but gave no reasons for such deviation. Davis argues Gloster did not establish that a deviation was in the best interest of the child and he had the burden of proving the basic guidelines were inequitable.

LSA-R.S. 9:315.1(B) and (C) provide, in part:

B. (1) The court may deviate from the guidelines set forth in this Part if their application would not be in the best interest of the child or would be inequitable to the parties. The court shall give specific oral or written reasons for the deviation, including a finding as to the amount of support that would have been required under a mechanical application of the guidelines and the particular facts and circumstances that warranted a deviation from the guidelines. The reasons shall be made part of the record of the proceedings.
C. In determining whether to deviate from the guidelines, the court’s considerations may include:
(8) Any other consideration which would make application of the guidelines not in the best interest of the child or children or inequitable to the parties.

On August 20, 2010, both parties submitted current pay stubs to the hearing officer, which were made part of the record. The hearing officer completed an obligation worksheet based on the income from the pay stubs, which included an average of 94 overtime hours per month, and determined Gloster’s monthly gross income at that time was $5,988.00.

At the disagreement hearing on September 20, 2010, the juvenile court was presented with a letter from Gloster’s employer, along with payroll reports which indicated his income and the number of overtime hours he worked from February 2010 until September 2010. The employer letter and payroll reports were made part of the record. The letter from Gloster’s employer indicated he worked an average of 94 overtime hours from March 2010 to July 2010 and then his overtime hours dropped to 54 hours per month for August. Gloster’s employer explained [7this decrease as the result of the filling of positions by the end of July. The juvenile court then completed an obligation worksheet and determined Gloster’s monthly gross income to be $4,272.00 and set monthly child support payments of $598.00.

After completing its own obligation worksheet and reviewing the exhibits presented, the juvenile court calculated child support for two different time periods based on the difference in the amount of income earned by Gloster during each period of time. The juvenile court adopted the hearing officer’s recommendation of monthly child support of $783.00 due by Gloster for the period of time he was working an average of 94 hours of overtime per month, from the date of filing of the motion to modify through August 2010.

The juvenile court recognized that the number of overtime hours had decreased as of August 2010. Thus, the juvenile court decreased his income and consequently decreased his child support obligation. The juvenile court calculated Gloster’s income and included the amount of overtime he was actually earning during each period of time. Thus, the juvenile court made two distinct findings of income and child support for the two separate time periods based on these differences.

First, we do not find the juvenile court deviated from the child support guidelines by making a determination of income for two different periods of time. Based on the evidence presented to the juvenile court, the court made a determination of income and used the child support guidelines, as provided for in the statute to determine the amount of support awarded based on these two incomes. Thus, we find no deviation from the guidelines.

Additionally, we find the juvenile court correctly calculated the amount of monthly support owed by Gloster based on his incomes for each time period. We 1 sdo not find the overtime worked by Gloster to be extraordinary, and thus it is not excluded from income pursuant to La. R.S. 9:315(C)(3)(a). Gloster’s employer explained the decrease in the overtime hours. Gloster testified that he was working more overtime hours because someone had retired and no one had yet filled the position. Gloster’s employer further explained that there is no guarantee of overtime hours and the past is not a predictor of the future.

We find the juvenile court correctly included the overtime actually earned by Gloster from April 2010 through August 2010 in calculating his gross income. We also find the juvenile court correctly calculated Gloster’s income from September 2010 forward, reflecting the decreased number of overtime hours. The open position created by someone retiring had been filled and Gloster was no longer working as many overtime hours, thus his income was less.

Accordingly, we affirm the judgment of the juvenile court awarding child support to Davis in the amount of $783.00 per month for April 27, 2010 through August 2010 and $598.00 per month from September 2010 forward, plus court costs and arrears to be calculated using these child support awards.


author: BROWN, Chief Judge. CARAWAY, J.,

text:
    Paxton MORGAN, Mitchell Davis, Richard Davidson, Chris Thedford Chad Burden, Billy G. Lewis, and Robert W. Taggart, Plaintiffs-Appellants v. CITY OF SHREVEPORT, Defendant-Appellee.
    No. 46,362-CA.
    Court of Appeal of Louisiana, Second Circuit.
    July 13, 2011.
    Rehearing Denied Aug. 4, 2011.

      Pamela R. Jones, Shreveport, LA, for Appellants.
    Barham, Warner, Stroud & McKay, LLC, by A.M. Stroud, III, Jennifer P. McKay, Shreveport, LA, for Appellee.
    Before BROWN, CARAWAY and PEATROSS, JJ.
   BROWN, Chief Judge.

11 Five Shreveport firefighters filed suit against the City of Shreveport (“the City”) alleging that the City’s incentive pay plan discriminates in violation of the equal protection guarantee of Louisiana Constitution Art. I, § 3. Plaintiffs seek damages, backpay, and adjustments and contend that only the Shreveport Municipal Fire and Police Civil Service Board (“the Board”) has the authority to enact an incentive pay plan. They further claim the plan used by the City, which was not established or approved by the Board, is arbitrary and discriminatory.

The material facts are not disputed. The City sought summary judgment. Plaintiffs also sought partial summary judgment on the issue of liability. The trial court denied plaintiffs’ motion for partial summary judgment, granted the City’s motion for summary judgment and dismissed the lawsuit with prejudice. Plaintiffs have appealed. We affirm.

Facts and Procedural Background

The City maintains a base pay schedule for classified fire service employees in accordance with the state statutory requirements of La. R.S. 33:1992. These salary requirements for classified employees can be increased with longevity, state supplemental and incentive pay. At issue in the present case is incentive pay for emergency medical supervisors, bomb technicians, air rescue firefighters and hazardous materials technicians.

As to incentive pay, La. R.S. 33:2586 provides:

The fire and police civil service board ... mag establish a plan for awarding incentive pay to classified employees. The plan shall include the criteria for eligibility for incentive pay, the method by which classified employees shall be reviewed for eligibility, and how such eligibility shall be determined. Determination of the amount of incentive pay and which | ^classified employees are to receive incentive pay shall be made by the appointing authority for the municipality, parish, or fire protection district subject to available funds budgeted for such purpose. The incentive pay awarded under the provisions of this Section shall be in addition to any other salary the classified employee is entitled to receive from the municipality, the state, or any other governmental entity. (Emphasis added).

In 1998, the Shreveport Fire Department formed a strategic planning team to establish criteria for determining the need for and amounts of incentive pay. Upon the team’s recommendation, the City adopted an incentive pay plan for the Shreveport Fire Department.

Fire Department Administrative Procedure No. 46 implements the City’s incentive pay program. As it pertains to the present litigation, the incentive pay plan recognized that obtaining certification as a hazardous materials technician was the equivalent of an Associate Degree and awarded $100 per month as an educational incentive. Rather than this educational pay, actual members of a Hazardous Materials Technicians Team receive incentive pay of $150 per month. At the heart of plaintiffs’ case is that only a limited number of certified hazardous materials technicians are assigned to a team. These team positions are limited to “a total of forty-five (45) HMT’s at rank of captain or below, and up to six district chiefs, with a maximum of 51 positions.” To obtain these positions, an employee had to be appropriately certified and must be “assigned to Rescue 1 or 9, Engine 1 or 9, Truck 1 or 9, District Chiefs assigned to District 1 or 4, or be in a swing position.” Stations 1 and 9 have specialized equipment not found at the other 20 stations. When members receiving HazMat incentive pay choose |sto promote to a division other than the Training Division, eligibility for pay would cease.

Plaintiffs, Paxton Morgan, Michael Davis, Richard Davidson, Chris Thedford, and Billy Lewis, are all employed by the Shreveport Fire Department in the fire line division and are certified as hazardous material technicians. At various times, each received the $100 per month education pay or the HazMat Team incentive pay of $150 per month. Morgan presently serves on a HazMat Team and receives the $150 per month incentive pay as a swing man. Davis and Davidson receive HazMat team incentive pay of $150 per month as HazMat Team members. Thedford receives only the $100 per month education pay. Lewis draws the $100 per month education pay; he lost his $150 per month HazMat Team pay when he bid to work at station 20.

Plaintiffs filed suit against the City seeking pay adjustments. Specifically, plaintiffs argued that the City had no authority to set the criteria for the award of incentive pay and thus the criteria could not be enforced as a legitimate basis for difference in pay within the classifications. They argue that under La. R.S. 38:1992, only the Board was authorized to establish a plan for incentive pay for classified employees. Plaintiffs believe there is only one classification and contend that La. R.S. 33:1969 required each person in that classification be paid equal compensation. That provision reads as follows:

|4Equal recognition and compensation shall be received for equal performance of duty and responsibility.

Plaintiffs argue that the City’s incentive pay plan cannot be enforced as a basis for differences in pay; that each employee must be treated equally; and, that the “baseline for uniform pay should be the highest amount of incentive pay that was paid to any position in the class.” In its opinion, the trial court noted, “[I]f this court were to accept plaintiffs’ argument that the incentive pay plan is unconstitutional, the plaintiffs would lose their incentive pay, not gain someone else’s.”

Alternatively, plaintiffs argue that the incentive pay plan created promotional classifications for which they were qualified and obtained by seniority and thus were entitled to promotional pay increases.

The City filed a motion for summary judgment. Its motion was supported by documents, affidavits, and deposition testimony. Plaintiffs opposed the City’s motion by written argument referencing documentation submitted with plaintiffs’ partial summary judgment motion filed the same day as well as with additional exhibits.

The trial court granted summary judgment in favor of the City, dismissing the entirety of plaintiffs’ claims with prejudice. By separate written judgment, the court denied plaintiffs’ motion for partial summary judgment. Plaintiffs have appealed.

Discussion

Each side produced affidavits and discovery material which shows that both sides agree that the City set up the incentive pay plan without the use of a civil service board. Both sides agree on the salaries and incentive Rpays, including the amounts that plaintiffs received as a result of the City’s plan.

Article VI, § 5(A) of the Louisiana Constitution grants municipalities the power to set up home rule charters. The Louisiana Constitution grants the exercise of any power and performance of any function necessary, requisite or proper for the management of its affairs, not denied by general law or inconsistent with constitution. La. Const. Art. VI, § 5(E). The Plan of Government for the City of Shreveport, adopted on May 13, 1978, states that the City has “all rights, powers, privileges, and authority that it has or could claim ... except as herein modified.” Nothing in the home rule charter expressly denies the power to set up incentive pay plans. Since the City is granted “any power ... not denied by general law or this constitution,” the City will have only the power to create an incentive pay plan if it is not expressly denied. No statute or provision of the Louisiana Constitution could be found that expressly denies local municipalities the authority to establish their own incentive pay plans.

The only statute dealing with incentive pay for firefighters is La. R.S. 38:2586 which provides that the fire and police civil service board may establish a plan for awarding incentive pay to classified employees. (Emphasis added). However, the statute further provides that the determination of the amount of incentive pay and which classified employees are to receive incentive pay shall be made by the appointing authority (the. municipality), and the incentive pay awarded shall be in | ^addition to any other salary the classified employee is entitled to receive from the municipality.

The statute clearly says that any incentive pay plan a civil service board sets up is in addition to any other salary. The incentive pay the firefighters receive based on the City’s independent plan is part of their salary. The civil service board “may” set up an incentive plan concurrently with the City that is additional to that salary. This permissive language is further evidence that the incentive pay plan of the civil service board is concurrent or supplemental to any pay plan the City sets up. The civil service board can forgo setting up any additional incentive pay plan if it chooses. If the civil service board were to set up a concurrent incentive pay plan, it would still be up to the appointing authority (the City) to set a pay schedule for that plan. The City would then be able to choose to fund its own incentive pay plan, the civil service board’s incentive pay plan, or neither.

The City’s challenged incentive pay plan was enacted in 1998, 13 years ago. This plan has been in operation since then, and nearly all firefighters receive some sort of incentive pay. In that entire time, the civil service board never challenged the plan or adopted its own. This inaction on the part of the board seems to be a tacit ratification or approval of the City’s plan.

Therefore, since the City’s power to set up its incentive pay plan is not expressly denied by statute or constitution, since the Louisiana Constitution grants broad powers of home rule, and since the City’s home 17rule charter accepts that broad power, the City had the authority to set up an incentive pay plan.

The purpose of La. R.S. 33:1992 and other statutes governing the pay of firefighters is to provide uniform standards for the minimum wages and working conditions of firefighters. New Orleans Firefighters Local 632 v. City of New Orleans, 03-1281, (La.App. 4th Cir.05/26/04), 876 So.2d 211. These statutes set up the structure and basic payment of firefighters according to the rules of civil service.

Nothing in the statute requires that all firefighters within one of these categories be paid the same. In La Grange v. Fire Prot. Dist. No. 4 of St. Tammany Parish, 03-0240 (La.App. 1st Cir.11/07/03), 868 So.2d 40, the First Circuit Court of Appeal held that no statute requires each member of a class to be paid the same regardless of different levels of education and job responsibilities. The firefighters receiving incentive pay receive higher pay for certain certifications, and when those skills are put to use.

If the legislature intended for all firefighters in a class to be paid the same, regardless of specific duties and qualifications, they never would have passed La. R.S. 33:2586, because it allows for unequal pay. The very idea that it is an incentive implies that some get the pay and others do not.

La. R.S. 33:2586 also shows that the legislature did not intend for a rigorous application of La. R.S. 33:1969 for similar reasons. If any new duty or responsibility would trigger a new position or class, then incentive Ispay would rarely ever be valid, because the incentive pay implies a specialized responsibility or duty. Under plaintiffs’ view, incentive pay would rarely be allowed since it would violate La. R.S. 33:1969. This interpretation would also make La. R.S. 33:2586 superfluous.

Therefore, since the legislature specifically provides for instances of incentive pay, the statutory framework does not require that all firefighters be paid the same.

The firefighters finally contend that they be paid a higher salary because the incentive pay plan that the City implemented violates the equal protection clause of the Louisiana Constitution in that it discriminates against them. They claim it is a discrimination because those on the slot-limited HazMat Team are paid $150 per month in incentive pay while others with a hazardous materials technician certification get only $100 per month as education pay.

The Louisiana Constitution, in Article I, § 3, protects against discriminatory laws. It states:

No person shall be denied the equal protection of the laws. No law shall discriminate against a person because of race or religious ideas, beliefs, or affiliations. No law shall arbitrarily, capriciously, or unreasonably discriminate against a person because of birth, age, sex, culture, physical condition, or political ideas or affiliations. Slavery and involuntary servitude are prohibited, except in the latter case as punishment for crime.

Article I, § 3 commands the courts to decline enforcement of laws classifying individuals in three situations: (1) When the law classifies individuals by race or religious belief, the law shall be repudiated completely; (2) when the law classifies individuals on the basis of birth, |3age, sex, culture, physical condition, or political ideas or affiliations, its enforcement shall be refused unless the state or other advocate of the classification shows that the classification has a reasonable basis; and, (3) when the law classifies individuals on any other basis, it shall be rejected when any member of a disadvantaged class shows that it does not suitably further any appropriate state interest. See In re State ex rel A.J., 09-0477 (La.12/01/09), 27 So.3d 247.

The City’s incentive pay plan does not classify the firefighters based on race, religion, birth, age, sex, culture, physical condition, or political ideas or affiliations. The incentive pay plan classifies the firefighters based on educational certification and employment roles. Therefore, the only way the City’s incentive pay plan may be rejected is if a disadvantaged individual shows that it does not suitably further any appropriate interest of the City.

The City has clearly shown that the classification suitably furthers an appropriate interest. One of the highest interests any government has, local government in particular, is the interest of protecting its citizens from harm. The fire department is set up to do just that. It protects citizens from fire damage, bomb threats, hazardous material spills, etc. To better provide these services, the City has provided incentives for firefighters to be better trained for the lifesaving and property-protecting services they provide. The $100 per month incentive to obtain a hazardous materials technician certification is meant to encourage firefighters to obtain higher skills. Those firefighters who receive the certification get a boost in pay. This | ^furthers the interest of the City in being better equipped to protect the public.

Other firefighters are given additional incentive when they actually serve on the HazMat Team and are placed in a more dangerous situation. The City obviously has an interest in cleaning up hazardous materials and having a team of firefighters to clean up the materials is an interest that is furthered by the incentive pay.

The City also has an interest in limiting the number of members to the HazMat Team. Here the interest is logistical and financial. The financial resources of the City are limited, and as a result it cannot afford to give every firefighter the HazMat Team incentive pay. Further, the City only needs a finite number of people on the team. It would serve no purpose to allow an unlimited number of firefighters to serve on the team when they are not needed. Since extra firefighters are not needed, they are not on the HazMat Team. Since they are not on the HazMat Team, they are not paid for it. The HazMat Team has the added responsibility of actually cleaning up the hazardous materials. Therefore, the City’s incentive pay plan does not violate the Louisiana Constitution, Article I, § 3.

Plaintiffs here seek to have the court invalidate the incentive pay plan, allow them to keep the incentive pay that they have received under the plan they want invalidated, and order that they be paid the highest amount of incentive pay available under the plan they claim is invalid. If the incentive pay plan were invalidated, the pay they received would be invalidated, as well as the higher pay along with it.

I ¡¡Conclusion

Since there is no genuine issue of material fact, and for the foregoing reasons, the City is entitled to a judgment as a matter of law, the trial court’s judgment granting summary judgment in favor of the City of Shreveport and separate judgment denying partial summary judgment for the firefighters is affirmed.

CARAWAY, J.,

dissenting.

|! Since I find the Shreveport Municipal Fire and Police Civil Service Board (the “Board”) is an indispensable party to this controversy, I would set aside the ruling of the trial court and remand for joinder of the Board. La. C.C.P. art. 927(B).

A municipal fire and police civil service board is a political subdivision, distinct from the municipal government, with separate constitutional and statutory governance under the law. La. Const. art. X, § 16; La. R.S. 33:2471, et seq. The jurisprudence demonstrates controversies litigated directly between a municipality and its civil service board. City of Kenner v. Lawrence, 365 So.2d 1301 (La.1978); City of Kenner Fire Dep’t v. Mun. Fire and Police Civil Serv. Bd., 97-228 (La.App. 5th Cir.9/30/97), 700 So.2d 1114. A civil service board has an interest in the maintenance of a cohesive personnel policy. City of Kenner v. Lawrence, supra at 1303. A board has an “interest in securing a judicial determination” of an “issue of general concern to civil service administration.” Id.

Such an issue of civil sendee administration underlies the current dispute involving the statutory interpretation of La. R.S. 33:2586. Under that statute, the Board’s discretionary power to create an incentive pay plan for classified employees is arguably an extension of its exclusive power under La. R.S. 33:2477(8) to “[a]dopt and maintain a classification plan.” More specifically, La. R.S. 33:2483 requires the civil service board to adopt a classification plan consisting of “classes to be designated either by ^standard titles, ranks, or a combination thereof, for all positions included in the classified service.... ” Also, under La. R.S. 33:2492, it is the civil board, not the municipality, that establishes “tests to determine the eligibility of applicants for entry upon the promotional and competitive employment lists.” “All tests shall be restricted to those matters which will fairly test the relative capacity and fitness of the candidates to discharge the duties characteristic of positions of the class to which they seek to be appointed.” La. R.S. 33:2492(4). With this longstanding statutory authority of the civil service board in our law, the legislature enacted in 1982 the now disputed incentive pay statute, La. R.S. 33:2586, as a “miscellaneous provision” and adjunct power for the overall authority of civil service boards. Despite this statutory framework, the City now asserts that the civil service administration of incentive pay plans for classified employees falls within its municipal powers. The Board certainly must be an indispensable party in this litigation before an answer to the City’s assertion and a declaratory judgment for the operation of this statute may be given.

Additionally, this statutory authority issue is not limited to this small group of firefighters’ claim of an unfair civil service structure created by the City’s incentive pay plan and their past and future incentive pay claims. All firemen in the City, whether receiving incentive pay or not, can make similar claims. Moreover, such claims arguably may fall exclusively within the Board’s jurisdiction for resolution; yet this action was commenced in the district court. The Board’s participation in this litigation will ensure that |sthese broader issues regarding all firefighters and the Board’s jurisdiction are appropriately examined.

APPLICATION FOR REHEARING

Before BROWN, WILLIAMS, STEWART, CARAWAY and PEATROSS, JJ.

Rehearing denied.

      . All plaintiffs at all times since the imposition of the incentive pay received an additional $50 for certification as EMTs. They received this whether they were on the HazMat team.

      . La. R.S. 33:1969 states that equal recognition and compensation shall be received for equal performance of duty and responsibility. As noted by the trial court and in the Reporter's Notes to the article, this section is necessary only insofar as municipalities of 10,000 to 13,000 are concerned because the Municipal Fire and Police Civil Service Law covers the situation in those over 13,000.