author: MARC E. JOHNSON, Judge.

text:
    Wallace Campbell DRENNAN, III v. Claudia Carrere DRENNAN.
    No. 12-CA-503.
    Court of Appeal of Louisiana, Fifth Circuit.
    July 3, 2013.
    Rehearing Denied Aug. 15, 2013.

      Marc D. Winsberg, Rebecca K. Bayless, Robin Penzato Arnold, Attorneys at Law, New Orleans, LA, for Plaintiff/Appellant.
    Randall A. Smith, J. Geoffrey Ormsby, Attorneys at Law, New Orleans, LA, for Defendant/Appellee.
    Panel composed of Judges FREDERICKA HOMBERG WICKER, JUDE G. GRAVOIS and MARC E. JOHNSON.
   MARC E. JOHNSON, Judge.

12Plaintiff/AppelIant, Wallace Campbell Drennan, III, and Defendant/Appellee, Claudia Carrere Drennan, seek review of the trial court’s judgment involving the partition of their community property from the 24th Judicial District Court, Division “C”. For the following reasons, we affirm in part, reverse in part, and render judgment.

FACTS AND PROCEDURAL HISTORY

The following are the facts pertinent to this appeal.

Wallace C. Drennan, III and Claudia Carrere Drennan (hereinafter referred to as “Ms. Carrere”) were married on July 24, 1987. On March 15, 1998, Mr. Dren-nan inherited one-eighth (12.5%) of his family-owned construction corporation, Wallace C. Drennan, Inc. (hereinafter referred to as “WCD”), from his father, Wallace C. Drennan, II. Subsequent to Wallace C. Drennan, II’s death, WCD can-celled the original corporate shares of stock and authorized an increase in the outstanding shares to 10,000. After a period of redeeming the shares of stock |afor various reasons in 1993, Mr. Drennan’s mother, Mrs. Susan Drennan (hereinafter referred to as “Mrs. Drennan”), then owned 5,000 shares. Mr. Drennan owned 792 shares, and his siblings (Douglas, Jonathan and Patrick) each owned 792 shares.

On June 15, 1994, Mrs. Drennan sold 2,500 shares of her stock to Mr. Drennan for $800,000.00 through an Act of Credit Sale. In order to fund his payment for the sale, Mr. Drennan signed a pledge, security agreement and promissory note in favor of Mrs. Drennan. Mrs. Drennan’s remaining shares were sold to Jonathan. Mrs. Drennan’s stock certificate evidencing her 5,000 shares was cancelled, and those shares were reissued accordingly to Mr. Drennan and Jonathan. Mr. Drennan made payments on the promissory note from his and Ms. Carrere’s joint checking account.

In March 2000, Mrs. Drennan forgave the balance of the debt, $130,848.00, owed to her by Mr. Drennan. Eventually, Mr. Drennan acquired the remaining shares of stock in WCD owned by Douglas, Jonathan, Patrick, and the treasury. In order to achieve a stock split in September 2003, WCD cancelled the previous shares and issued 10,000 new shares to Mr. Drennan as the sole shareholder.

On June 13, 2006, WCD, through Mr. Drennan as its president, entered into an agreement to purchase immovable property located at 2225 Chestnut Street (hereinafter referred to as “the Chestnut St. property”) in New Orleans, Louisiana. During the following month, Mr. Drennan filed a Petition for Divorce against Ms. Carrere pursuant to La. C.C.P. art. 102 on July 21, 2006. Shortly thereafter, WCD transferred $800,000.00 to Mr. Drennan on July 31, 2006 and $75,514.81 on August 1, 2006. Mr. Drennan purchased the Chestnut St. property in his own name for $875,000.00 on August 2, 2006. On the same date of the purchase, Mr. [4Prennan entered into a mortgage and signed a promissory note in favor of WCD for $875,000.00. Mr. Drennan and Ms. Car-rere physically separated on August 12, 2006.

On March 30, 2007, the end of the 2007 fiscal year, WCD paid Mr. Drennan a bonus of $875,000.00. On the same day, Mr. Drennan repaid WCD $946,157.42, which was recorded in WCD’s general ledger. A few months later, the parties were divorced on August 10, 2007. Afterwards, the parties instituted proceedings to partition the community property.

Several joint pre-trial orders and joint stipulations were filed in the matter in furtherance of the partition of the community property. On June 28, 2010, Ms. Car-rere filed a Motion for Partial Summary Judgment, alleging she was entitled to 50% ownership of WCD because the shares of stock held by Mr. Drennan were partly community property. The trial court denied the motion on August 13, 2010.

A trial on the valuation of WCD and the classification of its shares of stock was held on September 7 and 9, 2010. In a judgment rendered on December 8, 2010, the trial court held that 52% of the stock in WCD was owned by the community regime, and 48% of the stock in WCD was owned by Mr. Drennan as his separate property. The trial court also held that WCD was valued at $10,000,000.00, and Ms. Carrere was entitled to an award of $2,600,000.00, which was determined to be 50% of the value of the community shares in WCD ($5,200,000.00).

On January 11, 2011, Ms. Carrere filed a Motion to Declare Entitlement to Community Property Funds, alleging she was entitled to one-half of the community funds used to purchase the Chestnut St. property. On May 16, 2011, the trial court found that the $875,000.00 used to purchase the Chestnut St. property was both separate and community property, such that 52% of the funds |swere community property and 48% of the funds were Mr. Drennan’s separate property. The trial court then awarded Ms. Carrere $227,500.00, which was determined to be one-half of Ms. Car-rere’s share of the community funds used to acquire the Chestnut St. property ($455,000.00).

Subsequently, Mr. Drennan filed a Motion for New Trial on May 31, 2011. In that motion, Mr. Drennan claimed the $875,000.00 used to purchase the Chestnut St. property was from the bonus he received from WCD, and he had paid federal income taxes in 2007 on that bonus. Mr. Drennan argued that any sum awarded to Ms. Carrere should have been reduced by the minimum tax rate he paid on the bonus. On August 3, 2012, the trial court granted Mr. Drennan’s motion to set a new trial date. After a hearing on the motion, the trial court rendered a judgment on September 9, 2011 that again held Ms. Carrere was entitled to $227,500.00 as her share of the community funds used by Mr. Drennan to acquire the Chestnut St. property. The trial court did not assess Ms. Carrere with any tax consequences associated with the purchase of the property.

In a Final Judgment of Partition rendered on September 21, 2011, the trial court partitioned to Mr. Drennan, among other property, 52% interest in WCD deemed as community property (valued at $5,200,000.00) with 48% deemed as his separate property, and 52% of the funds used to acquire in the Chestnut St. property deemed as community property (valued at $455,000.00) with 48% of the funds deemed as his separate property. Mr. Drennan was also awarded, among other things, $41,568.00 as reimbursement for 50% of the restoration to the Chestnut St. property. The trial court determined that an equalizing payment of $2,942,780.00 was owed to Ms. Carrere by Mr. Drennan. In total, the trial court found Mr. Drennan owed Ms. Carrere $2,897,747.00 with legal interest for the partitioning of the property-

| r,The instant appeal followed the September 21, 2011 judgment.

ASSIGNMENTS OF ERROR

On appeal, Mr. Drennan raises the following assignments of error: the trial court committed manifest error in valuing WCD at $10,000,000.00 by averaging the divergent expert opinions, and the trial court committed manifest error in awarding Ms. Carrere 26% of the funds used to pay the Chestnut St. property loan. Through her Answer, Ms. Carrere raises the following assignments of error: the trial court erred by reclassifying 1,090 shares of stock as Mr. Drennan’s separate property, where the community clearly purchased those shares years before the purported donation from Mr. Drennan’s mother, and the trial court erred in awarding her only 26% of the funds used to purchase the Chestnut St. property, where she actually owned, at least, a 40% interest in WCD.

LAW AND ANALYSIS

General precepts of law

A trial court has broad discretion in adjudicating issues raised by divorce and partition of the community proceedings. Goines v. Goines, 09-994 (La.App. 5 Cir. 3/9/11); 62 So.3d 193, 198, writ denied, 11-0721 (La.5/20/11); 63 So.3d 984. The trial judge is afforded a great deal of latitude in arriving at an equitable distribution of the assets between the spouses. Id. When deciding the allocation of an asset or liability, the court shall consider: 1) the nature and source of the asset or liability, 2) the economic condition of each spouse, and 3) any other circumstances the court deems relevant. Id. The trial court’s allocation or assigning of assets and liabilities in the partition of community property is reviewed under the abuse of discretion standard. Id., citing Legaux-Barrow v. Barrow, 08-530 (La.App. 5 Cir. 1/27/09); 8 So.3d 87, writ not considered, 09-447 (La.4/13/09); 5 So.3d 152.

17It is well-settled law that an appellate court may not set aside a trial court or jury’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong.” Hoffman v. Jefferson Parish Hosp. Services Dist. No. 2, 11-776 (La.App. 5 Cir. 4/10/12); 87 So.3d 370, 372, citing Florreich v. Entergy Corp., 09-414 (La.App. 5 Cir. 2/23/10); 32 So.3d 965. However, where one or more trial court legal errors interdict the fact finding process, the manifest error standard is no longer applicable; and if the record is otherwise complete, the appellate court should make its own independent de novo review of the record and determine a preponderance of the evidence. Id.

Classification of shares of stock

Ms. Carrere alleges the trial court erred by reclassifying 1,090 shares of stock as Mr. Drennan’s separate property, where the community clearly purchased those shares before a purported donation by Mr. Drennan’s mother. Ms. Carrere asserts that, because the classification of property as separate or community is fixed at the time of its acquisition, none of the community property shares purchased from Mrs. Drennan in 1994 could later become Mr. Drennan’s separate property shares in 2000 because Mrs. Drennan forgave the balance of the debt owed. Ms. Carrere claims the 2,500 shares of WCD stock purchased from Mrs. Drennan on September 15, 1994 were and remained community property. As such, Ms. Carrere requests that this Court classify the entirety of Mrs. Drennan’s 2,500 shares of stock as community property.

Mr. Drennan argues the trial court correctly found that the Act of Credit Sale between him and his mother did not determine the character of his stock in the community property partition. Mr. Dren-nan asserts he acquired the 2,500 shares of stock through payments and a donation from Mrs. Drennan. Mr. Drennan contends Mrs. Drennan forgave the balance of the stock purchase loan, and the intention to | sforgive the loan constituted a donation to his separate property. Mr. Drennan avers that he is not claiming that the stock was transferred when the loan was forgiven, but rather that he received a gift from his mother at that time.

In its judgment, the trial court found that a total of 1,882 shares or 45% percent of the 3,910 shares Mr. Drennan acquired were his separate property. The trial court reasoned that the shares were Mr. Drennan’s separate property because he inherited 792 shares from his father and acquired 1,090 shares from a donation by Mrs. Drennan. The trial court further found that shares of stock were acquired from purchases made during the community regime, e.g., 396 shares from Patrick, 1,410 shares from Mrs. Drennan, and 222 shares from Douglas. The trial court concluded that a total of 2,028 shares or 52% of Mr. Drennan’s 3,910 shares of WCD were owned by the community regime.

Community property is made up of property acquired during the existence of the legal regime through the effort, skill, or industry of either spouse, property acquired with community things or with community and separate things, unless classified as separate property under La. C.C. art. 2341. Moise v. Moise, 06-876 (La.App. 5 Cir. 3/13/07); 956 So.2d 9, 11, citing La. C.C. art. 2338. Separate property includes property acquired by the spouse prior to the marriage; property acquired with separate things or with separate and community things when the value of the community things is inconsequential in comparison with the value of the separate things used; and property acquired individually by gift or inheritance. Brehm v. Brehm, 00-201 (La.App. 5 Cir. 6/27/00); 762 So.2d 1259, 1264, citing La. C.C. art. 2341. The classification of property as separate or community is fixed at the time of its acquisition. Moise, supra, citing Smith v. Smith, 95-0913 (La.App. 1 Cir. 12/20/96); 685 So.2d 649.

UThe trial court’s findings regarding the nature of the property as community or separate are factual determinations subject to manifest error review. Ross v. Ross, 02-2984 (La.10/21/03); 857 So.2d 384, 395; Goines, supra. The Louisiana Civil Code also provides that things in the possession of a spouse during the existence of a regime of acquets and gains are presumed to be community. Id. at 390, citing La. C.C. art. 2340. However, either spouse may rebut this presumption. Id. The spouse seeking to rebut the presumption bears the burden of proving that the property is separate in nature. Id.

In the case at bar, Mr. Drennan inherited one-eighth or 12.5% of WCD from his father in 1993. Although it was acquired during the community regime, the one-eighth ownership interest inherited by Mr. Drennan was clearly his separate property. However, the remaining 87.5% ownership interest acquired during the community regime by Mr. Drennan does not fit into the separate property classification, in particular the shares acquired from Mrs. Drennan that are at issue.

Mrs. Drennan sold Mr. Drennan the 2,500 shares of stock in WCD on June 15, 1994, which is evidenced by the Act of Credit Sale, pledge, security agreement and promissory note. The shares purchased by Mr. Drennan from Mrs. Dren-nan were reissued in Mr. Drennan’s name in 1994. At the time Mrs. Drennan and Mr. Drennan entered into the act of sale, Mr. Drennan was married to Ms. Carrere; thus, it is presumed that Mr. Drennan incurred a community obligation to acquire community property. See La. C.C. art. 2361. In order to make payments to Mrs. Drennan for the stock he purchased, Mr. Drennan used community funds from the joint checking account he shared with Ms. Carrere.

| ¶ (Although Mr. Drennan claims that Mrs. Drennan donated the 2,500 shares to him in March 2000, we do not find that the shares were actually donated to Mr. Dren-nan. Mrs. Drennan could not donate the shares of stock to Mr. Drennan in 2000 because she had already sold Mr. Drennan those same shares in 1994. The shares of stock for Mrs. Drennan were fully transferred to Mr. Drennan in 1994. Mrs. Drennan simply forgave the remaining debt owed to her for the shares of stock, which was presumed to be a community obligation.

At trial, it was incumbent upon Mr. Drennan to rebut the presumption that the shares of stock acquired from Mrs. Dren-nan were not community property, and he failed to do so. There was no declaration in the act of sale or any other document that the shares acquired by Mr. Drennan were his separate property. Other than his self-serving testimony, the only other evidence submitted by Mr. Drennan was a letter from Mrs. Drennan’s financial consultant indicating that she had forgiven all but $25,000.00 of the outstanding debt through an act of donation. Mr. Drennan did not submit any other evidence to rebut the presumption that the 2,500 shares he acquired are not community property.

Therefore, we find the trial court committed manifest error in classifying part of the 2,500 shares of stock Mr. Drennan acquired from Mrs. Drennan as separate property. We hold that the 2,500 shares acquired by Mr. Drennan from Mrs. Dren-nan are community property and determine that 87.5% of the ownership interest in WCD is community property with the remaining 12.5% interest being Mr. Dren-nan’s separate property. Accordingly, we find Ms. Carrere is entitled to one-half of the community ownership interest (43.75%) in WCD as her share of the community property.

In Award, of funds for the Chestnut St. property

Mr. Drennan alleges the trial court committed manifest error in awarding Ms. Carrere 26% of the funds used to pay the Chestnut St. property loan. Mr. Drennan avers that: a) Ms. Carrere never asserted a reimbursement claim for the $875,000.00 bonus he received; b) he purchased the property after the community terminated with a loan and later paid off the loan with a bonus for his performance after the community terminated; c) both of Ms. Car-rere’s experts added back the property’s funds to WCD’s revenues, thereby increasing its value and causing him to pay twice for the same asset-once in the form of the amount he owes for the WCD stock, and a second time in the form of the payment he owes under the court’s ruling on the property’s funds; and d) Ms. Carrere is only entitled to one-third of the post-taxed portion of the $875,000.00 because he paid income taxes on his bonus in 2007.

Ms. Carrere also alleges the trial court erred in awarding her 26% of the funds used to purchase the Chestnut St. property. Ms. Carrere agrees with the trial court’s finding that part of the funds used to purchase the Chestnut St. property came from a community asset, WCD. Ms. Carrere contends Mr. Drennan should be held accountable for his breach of his fiduciary duty owed under La. C.C. art. 2369.3 through the act of depleting WCD funds by giving himself an exorbitant advanced bonus of $875,000.00 disguised as a loan. However, Ms. Carrere asserts that she is entitled to a higher percentage because she actually owned, at least, a 40% interest in WCD at the time the company loaned the money to Mr. Drennan. As a result, Ms. Carrere requests that this Court affirm the underlying ruling that the funds used to purchase the Chestnut St. property were in part community funds, increase the percentage of community funds used to purchase the property to a |12minimum of 80%, and award her one-half of the community funds used to acquire the Chestnut St. property.

In its judgment, the trial court held that the $875,000.00 used to purchase the Chestnut St. property was part separate property and part community property. The trial court determined that 48% of the purchase funds were owned by Mr. Dren-nan as his separate property, and 52% of the funds were owned by the community regime. The trial court found Ms. Carrere was entitled to an award of 50% of $455,000.00, which was determined to be a total award of her share of the community funds used to acquire the Chestnut St. property.

If community property has been used during the existence of the community property regime or former community property has been used thereafter to satisfy a separate obligation of a spouse, the other spouse is entitled to reimbursement for one-half of the amount or value that the property had at the time it was used. La. C.C. art. 2364.

In this matter, at the time Mr. Drennan purchased the Chestnut St. property, he used money loaned to him by WCD. This is evidenced by the facts that Mr. Drennan signed a promissory note and mortgage in favor of WCD for the sum of $875,000.00, and the terms used in those contracts are clear and unambiguous. Thus, the loaned funds used to buy the Chestnut St. property were part community property (87.5%) and part separate property (12.5%) from WCD at the time the property was purchased. As a result, Ms. Carrere is entitled to the one-half of community property used to purchase the Chestnut St. property. For purposes of classifying the funds used in the purchase, we find that it is inconsequential that Mr. Drennan later repaid his loan with interest through his bonus at the end of the 2007 fiscal year.

| i3Even though the value of the property was added to the valuation reports of two experts, Ms. Carrere is still entitled to reimbursement of one-half of her share of the community funds expended in the purchase of the Chestnut St. property because the loan was a liability of the community regime from the moment it was transacted. Additionally, there was no need for Ms. Carrere to claim reimbursement for Mr. Drennan’s bonus because the home was purchased with part community funds from WCD., Because Ms. Carrere is entitled to reimbursement of her share of the funds loaned to Mr. Drennan to purchase the Chestnut St. property, we find the federal income tax consequences for Mr. Drennan’s bonus are inapplicable to Ms. Carrere’s reimbursement.

Therefore, we affirm the trial court’s ruling that the purchase funds in the amount of $875,000.00 used to acquire the Chestnut St. property were part separate property and part community property. However, we amend the trial court’s ruling on the percentages of community and separate property to reflect that 87.5% of the funds were community property and 12.5% of the funds were Mr. Drennan’s separate property. Accordingly, we find Ms. Car-rere is entitled to reimbursement in the amount of $382,812.50, which represents her one-half community property share (43.75%) of the $875,000.00 used to purchase the Chestnut St. property.

We further find that the trial judge erred in awarding Mr. Drennan $41,568.00 for reimbursement for the restoration of the Chestnut St. property. |14Although the parties stipulated in their November 10, 2010 Joint Detailed Descriptive List that Mr. Drennan would be reimbursed for the amount expended to restore the Chestnut St. property, that stipulation was subject to the condition that the property be deemed community property. While we find, as did the trial court, that the funds used to acquire the property were part separate and part community funds, the property — acquired after the termination of the community regime — is Mr. Drennan’s separate property. Therefore, just as Ms. Carrere is not entitled to any increase in the property’s value since the date of its purchase, she is also not liable for reimbursement to Mr. Drennan for the funds expended to restore his separate property. See Brehm v. Brehm, supra, 762 So.2d at 1266. Therefore, we reverse the trial court’s award of $41,568.00 to Mr. Drennan for the restoration of the Chestnut St. property and amend the Final Judgment of Partition accordingly.

Valuation of WCD

Mr. Drennan alleges the trial court committed manifest error in valuing WCD at $10,000,000.00 by simply averaging divergent expert opinions. In support of his argument, Mr. Drennan asserts: a) one of Ms. Carrere’s valuation experts deemed not credible by the trial court drastically increased his valuation after being fired for providing a realistic valuation, re-hired and then meeting with Ms. Car-rere’s second expert; b) Ms. Carrere caused substantial delay in the proceedings; c) neither of Ms. Carrere’s experts made the mandatory reduction for personal goodwill required by La. R.S. 9:2801.2; d) both of Ms. Carrere’s experts made unrealistic assumptions about the future performance of WCD; and e) one of Ms. Carrere’s experts used the wrong discount rate to drastically inflate her valuation.

In opposition, Ms. Carrere avers the trial court’s ruling was correct because it had the discretion to average the experts’ valuations. Ms. Carrere contends the | ^valuations used by her experts applied reasonable valuation methods that were properly considered by the trial court. By averaging the valuations of all of the experts, Ms. Carrere further contends the judgment accounted for Mr. Drennan’s personal goodwill.

During the trial held on September 7 and 9, 2010, the testimonies and valuation reports of three experts (Mr. Kevin Ney-rey, Ms. Vanessa Claiborne and Ms. J.C. Tuthill) were presented to the trial court regarding the valuation of WCD. Mr. Neyrey and Ms. Tuthill were presented as the experts of Ms. Carrere, and Ms. Claiborne was the expert of Mr. Drennan.

Mr. Neyrey had two valuation reports submitted to the trial court. Mr. Neyrey’s first valuation report concluded the analysis of WCD on March 31, 2008 and set forth two approaches with different values. For the discounted future earnings approach, Mr. Neyrey valued WCD at $5,778,599.00. In his adjusted net book value analysis, Mr. Neyrey valued WCD at $6,147,101.00. Although Mr. Neyrey was Ms. Carrere’s expert, his first valuation report was submitted by Mr. Drennan. In his second report, Mr. Neyrey concluded his analysis of WCD on October 31, 2009. The second report of Mr. Neyrey valued WCD at $11,725,000.00 by using the capitalized historical cash flow method of the income approach. Mr. Neyrey’s second valuation report was submitted as a joint exhibit.

Ms. Claiborne’s valuation report concluded its analysis of WCD on October 31, 2009. Ms. Claiborne’s report valued WCD at $7,330,941.00 by using the weighted average of the values from the market approach, the income approach with the discounted cash flow method and leveraged buyout model, and the asset approach with the net asset value method, while relying heavily on the income and asset approaches. However, at trial, Ms. Claiborne acknowledged there were | ^miscalculations in her valuation and testified WCD was actually valued at $7,800,000.00. Ms. Claiborne’s report was submitted as a joint exhibit.

Ms. Tuthill’s valuation report also concluded its analysis of WCD on October 31, 2009. Ms. Tuthill’s report valued WCD at $14,300,000.00 by using the income approach with the capitalized historical cash flow method. Ms. Tuthill’s valuation report was submitted as a joint exhibit.

In its judgment, the trial court mentioned that it found problems with each of the experts’ valuations. The trial court noted that it calculated the value of WCD by

taking the average of [Mr. Drennan’s] recommendation of $6.8 million (the midpoint between the range of $5.8 million-$7.8 million) and the average of [Ms. Carrere’s] recommendation of $13,012,500.00 (the midpoint between the range of $11,1725,000.00-$14,300,000.00). Thereafter, by taking the mean of both averages of $6.8 million and $18,012,500.00), this Court has determined that the fair market value of WCD as of October 81, 2009, the date agreed to by the parties, is ten million dollars ($10,000,000.00)[.] [Emphasis added].

It is evident from the judgment that the trial court considered Mr. Ney-rey’s first valuation report by the use of the $5,800,000.00 value at Mr. Drennan’s recommendation. However, the parties to this matter agreed that October 31, 2009 would be the ending valuation date for the valuation reports, and all of the experts prepared reports according to that date. Although we acknowledge that the trial court attempted to arrive at an equitable fair market value for WCD, we find the trial court committed a legal error by using Mr. Neyrey’s first valuation report in its calculations in spite of the stipulated valuation date of the parties. Because the trial court committed a legal error and the record before us is complete, we will now conduct a de novo review of the fair market value of WCD. See Hoffman, supra.

|17At trial, Mr. Neyrey, Ms. Claiborne and Ms. Tuthill were accepted as experts, and their valuation reports of WCD were accepted into evidence. After review of each of the valuation reports accepted, we find that each of the reports applied reasonable techniques in the valuations and should be considered in our determination of the fair market value of WCD. However, like the trial court, we also acknowledge that each of the reports could be criticized.

Ms. Claiborne’s report excluded certain years (2006, 2007 and 2008) from the discounted cash flow model; it did not include the receivables owed by the Bridge City and Nine Mile Properties; it does not account for the $875,000.00 loan to Mr. Drennan for the Chestnut St. property; and it upwardly adjusted Mr. Drennan’s salary. Ms. Tuthill’s report used a capitalization rate far lower than the rates of the other two experts; it projected post-Hurricane Katrina profits for future years; and it did not deduct an amount for Mr. Dren-nan’s personal goodwill. Mr. Neyrey’s report projected post-Hurricane Katrina profits for future years; and even though Mr. Neyrey testified that Mr. Drennan is very important to WCD, the report did not deduct an amount for Mr. Drennan’s personal goodwill.

The valuations with an ending valuation date of October 31, 2009 report the following as values of WCD: Ms. Claiborne’s report (as adjusted at trial)— $7,800,000.00; Mr. Neyrey’s report— $11,725,000.00; and Ms. Tuthill’s report— $14,300,000.00. In an effort to determine the most equitable value possible from the reports before us, we calculate the fair market value of WCD by averaging the values determined in each report. By using that equation, we conclude that the |1sfair market value of WCD is $11,275,000.00. Accordingly, we find that Ms. Carrere is entitled to one-half of the value of the community property share (43.75%) of the fair market value of WCD ($11,275,000.00). Therefore, we award Ms. Carrere $4,932,812.50 as her share of the community property interest in WCD.

DECREE

For the foregoing reasons, we affirm in part, reverse in part, and render an amended Final Judgment of Partition. Each party is to bear his/her own costs for this appeal. Therefore,

IT IS ORDERED, ADJUDGED AND DECREED that the community property partition judgment is rendered as follows:

I.

During the existence of the marriage, the community property regime between Plaintiff/Appellant, Wallace C. Drennan, and Defendant/Appellee, Claudia Carrere, acquired 87.5% of the ownership interest in Wallace C. Drennan, Inc.

II.

Ms. Carrere is entitled to one-half of the 87.5% ownership interest (43.75%) acquired by the community property regime in Wallace C. Drennan, Inc. Ms. Carrere is awarded $4,932,812.50 as her share of the community property interest in WCD.

Jjjin.

Ms. Carrere is entitled to reimbursement in the amount of $382,812.50, which represents her one-half community property interest (43.75%) of the $875,000.00 used to purchase the Chestnut St. property.

IV.

The parties’ assets and liabilities are allocated at the following values, and the respective reimbursement claims are adjudicated as follows:

1. Plaintiff/Appellant, Wallace C. Dren-nan, III shall be and hereby is partitioned the following assets and liabilities as his full share of the community property formerly existing between the parties:

Description Value
a. 87.5% interest deemed as the community property of Wallace C. Drennan, Inc. (12.5% deemed as the separate property of Mr. Drennan). $ 9,865,625.00
b. 87.5% interest deemed as the community property of the funds used to purchase the Chestnut St. property (12.5% deemed as the separate property of Mr. Drennan). $ 765,625.00
c. Nine Mile Properties, Inc. $ 595,311.00
d. JTWW, L.L.C. — Insurance proceeds . $ 10,000.00
e. New Orleans Country Club Stock. $ 18,500.00
57,192.00 f. Morgan Keegan Account # xx-4315 777
111,000.00 g. ING 401K account. 'L/^
12,075.00 h. Cash value of life insurance policies
450.00 i. Remington gun. L/ J
500.00 j. AK 47-AR 17 . ⅜/v
2,000.00 k. Gun safe. L/J
522.00 l. Glock gun. V*
1,000.00 m. AR-15 gun. KJ J
900.00 bon. Steyr Aug gun. L/ J
1,000.00 o. Benelli Supra shotgun. L/J
10,000.00 p. Interest in World Cat boat.
3,750.00 q. Interest in Cajun boat. L/J
8,000.00 r. 1973 Fiat.
2,500.00 s. 2001 Trailblazer. /»^< L/J
$11,465,950.00 TOTAL .

2. Defendant/Appellee, Claudia Car-rere, shall be and hereby is partitioned the following assets and liabilities as her full share of the community property formerly existing between the parties:

Description Value
1504 Homer Street. $795,000.00 es
Whitney Checking account # xx-200. $2,367.00 X!
account # xx-162.
Whitney Savings account. $308.00
Morgan Keegan Account # xx-4323 . $58,566.00 <ú
Morgan Keegan Account # xx-3298 . $15,088.00 ¾-;
Household furnishings.
Air boat. $2,000.00
Mortgage on Homer Street (Liability) . $(284,339.00) .X
Chase Visa debt (Liability). $(1,796.00) -r-⅛
TOTAL. $604,140.00

3. Mr. Drennan shall be and hereby is awarded the following reimbursement claims:

Description Value
3,175.00 a. One-half of the property taxes on the former matrimonial domicile by Mr. Drennan post-termination of the community. 1»<*⅝ K/J
6,087.00 |2ib. One-half of the insurance payments made on the former matrimonial domicile by Mr. Drennan post-termination of the community ⅜⅜ VJ
2,648.00 e. One-half of the maintenance and upkeep of World Cat. /»<■> ■L/J
$11,910.00 TOTAL .

4. Ms. Carrere shall be and hereby is awarded the following reimbursement claims:

Description Value
a. One-half of the repairs to 1504 Homer St. property. $8,445.00
TOTAL. $8,445.00

5. The net of the above reimbursement claims results in a reimbursement owed by Ms. Carrere to Mr. Drennan in the amount of $3,465.00 ($11,910.00-$8,445,00 = $3,465.00).

6. The above allocation of assets results in an equalizing payment of $5,430,905.00 ($11,465,950.00-$604,140.00 = $10,861,810.00 -r 2 = $5,430,905.00) owed by Mr. Drennan to Ms. Carrere.

7. Based upon the above calculations, Mr. Drennan owes Ms. Carrere $5,427,440.00 ($5,430,905.00-$3,465.00 = $5,427,440.00) as the net amount due from the partitioning of the community property-

8. The parties shall list and sell their Mississippi property. They shall evenly divide the sale proceeds.

9. The parties shall evenly divide in kind their U.S. Savings Bonds.

Accordingly, this Court enters judgment allocating the assets in full ownership to each party as set forth above and further enters judgment in favor of Defendant/Ap-pellee, Claudia Carrere, and against Plain-tiffAppellant, Wallace C. Drennan, III, in the amount of $5,427,440.00 (comprised of the awards of | ¾¾$5,430,905.00-$3,465.00), together with legal interest on the amount awarded in the original Final Judgment of Partition ($2,897,747.00) from date of that judgment, September 21, 2011, until paid, and with legal interest on the excess amount awarded in this amended Final Judgment of Partition over the amount awarded in the original Final Judgment of Partition from the date this opinion is rendered until paid.

AFFIRMED IN PART; REVERSED IN PART; JUDGMENT RENDERED

      . The remaining 1,832 shares belonged to the treasury.

      . It is not disputed by either party that the shares of stock Mr. Drennan acquired from his brothers and the treasury are community property.

      . Mr. Drennan’s second assignment of error and Ms. Carrere's first assignment of error are interrelated. As such, we are jointly reviewing the assignments.

      . It is noted that Ms. Carrere did list the Chestnut St. property in her sworn descriptive list as a community property asset.

      . As we discussed above, on August 1, 2006 Mr. Drennan purchased the Chestnut St. property for $875,000.00 with funds he borrowed from WCD. On August 12, 2006 the parties separated. On September 21, 2006 the trial court issued an interim judgment which restrained both Mr. Drennan and Ms. Carrere from "alienating, encumbering, concealing, or disposing of the community property previously existing between the parties.” Mr. Drennan controlled WCD. Louisiana Civil Code article 2369.3 imposes a duty to preserve and prudently manage a former community enterprise that is under a party’s control in a manner consistent with the mode of use of that property immediately prior to the termination of the community regime. On March 30, 2007, while the partition action was pending, WCD paid Mr. Drennan an $875,000.00 bonus. This bonus was vastly in excess of any previous bonus paid to Mr. Drennan. On that same day Mr. Drennan used this bonus to repay the WCD loan which funded the Chestnut St. property purchase. While the efficacy of the payment of this bonus is questionable at best, the financial consequence of this transaction is mooted by the manner in which the trial court treated the reimbursement to Ms. Carrere of one-half the community funds used to purchase the Chestnut St. property. While we have adjusted the community property portion of the $875,000.00 Chestnut St. loan, we agree with the manner in which the trial court treated the purchase.

      . Bridge City and Nine Mile Properties, Inc. are subsidiary companies of WCD.

      . La. R.S. 9:2801.2 provides,
      In a proceeding to partition the community, the court may include, in the valuation of any community-owned corporate, commercial, or professional business, the goodwill of the business. However, that portion of the goodwill attributable to any personal quality of the spouse awarded the business shall not be included in the valuation of a business.
      Ms. Tuthill’s report did not take goodwill into account in the valuation. Mr. Neyrey testified that he did consider Mr. Drennan's goodwill; however, Mr. Neyrey testified, "I don’t think there's much, if any” personal goodwill attributable to WCD. Mr. Drennan testified that most WCD contracts resulted from a public bid process. Goodwill would play no role in the awarding of those contracts. Although Ms. Tuthill and Mr. Neyrey's reports did not deduct for personal goodwill, we agree with Ms. Carrere that averaging the reports along with Ms. Claiborne’s report takes Mr. Dren-nan’s personal goodwill into account and complies with La. R.S. 9:2801.2.

      . Courts may reasonably average expert valuations, particularly where the finder of fact has found each of the valuations to have both problems and merit. See Martin v. D & S Marine Service, L.L.C, 2011-1489, p. 3 (La.App. 3 Cir. 4/4/12), 2012 WL 1108903; Cotton v. State Farm Mut. Auto, Ins. Co., 2010-1609, p. 16 (La.App. 1 Cir. 5/6/11), 65 So.3d 213, 224; Daniel v. Daniel, 2009-1743, p. 6 (La.App. 1 Cir. 3/26/10), 2010 WL 1170434; Brown v. City of Madisonville, 2007-2104, p. 19 (La.App. 1 Cir. 11/24/08), 5 So.3d 874, 888.


source: Caselaw Access Project

author: JUDE G. GRAVOIS, Judge.

license: Public Domain

text:
    Iris PAUL v. JEFFERSON PARISH PUBLIC SCHOOL SYSTEM.
    No. 13-CA-132.
    Court of Appeal of Louisiana, Fifth Circuit.
    July 3, 2013.

      D. Steven Wanko, Jr., Chase T. Villeret, Attorneys at Law, Covington, LA, for Plaintiff/Appellant.
    Brad J. Gegenheimer, Attorney at Law, Gretna, LA, for Defendant/Appellee.
    Panel composed of Judges JUDE G. GRAVOIS, ROBERT M. MURPHY, and JOHN J. MOLAISON, JR., Ad Hoc.
   JUDE G. GRAVOIS, Judge.

Claimant, Iris Paul, has appealed a workers’ compensation court judgment that sustained her employer’s exception of prescription. For the reasons that follow, we reverse the judgment under review and remand the matter for further proceedings consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

Claimant, Ms. Paul, was employed by the Jefferson Parish School Board (“the School Board”) as a custodial worker. On March 6, 2009, she injured her neck and left shoulder during the course and scope of her employment. She reported this injury to the School Board and began receiving temporary total disability benefits. The last payment of temporary total disability benefits was made to Ms. Paul by the School Board on July 2, 2009.

On December 1, 2010, Ms. Paul filed a disputed claim for compensation, alleging that her workers’ compensation benefits had been wrongfully terminated. On February 13, 2012, the parties entered into a Consent Judgment whereby Ms. Paul accepted a lump-sum payment of $13,000.00 from the School Board in satisfaction of her claim for supplemental earnings benefits “inclusive from the date of the alleged injury [March 6, 2009] through and including January 31, 2012.” In the Consent Judgment, the School Board also agreed to pay Ms. Paul supplemental earnings benefits from February 1, 2012 until she “is placed in a job that has been approved by her treating physician.” The Consent Judgment reserved the right of each party “to file additional claims in the future should the need arise.”

On April 12, 2012, Ms. Paul underwent surgery for a condition related to her initial injury, which undisputedly rendered her again temporarily totally disabled, thereby making her no longer eligible for supplemental earnings benefits. On that date, because of her then total disability status, the School Board terminated Ms. Paul’s supplemental earnings benefits. On July 18, 2012, Ms. Paul filed a second disputed claim for compensation, alleging that her workers’ compensation benefits had been wrongfully terminated, her disability status was incorrect, she was entitled to vocational rehabilitation, and she was due costs, penalties, interest, and attorney’s fees. In response, the School Board filed an exception of prescription, asserting that since Ms. Paul had not received temporary total disability benefits since July 2, 2009, any claim that she might have to receive temporary total disability benefits resulting from her work-related injury had prescribed.

After a hearing in which the trial judge took the matter under advisement, judgment was rendered granting the exception. This timely appeal followed.

ISSUE PRESENTED FOR REVIEW

The only issue Ms. Paul presents for review is whether under La. R.S. 23:1209, the School Board’s payment of supplemental earnings benefits to her interrupted prescription as to her claim for temporary total disability benefits.

La. R.S. 23:1209(A) provides, in pertinent part:

(1) In case of personal injury, including death resulting therefrom, all claims for payments shall be forever barred unless within one year after the accident or death the parties have agreed upon the payments to be made under this Chapter, or unless within one year after the accident a formal claim has been filed as provided in Subsection B of this Section and in this Chapter.
(2) Where such payments have been made in any case, the limitation shall not take effect until the expiration of one year from the time of making the last payment, except that in cases of benefits payable pursuant to R.S. 23:1221(3) this limitation shall not take effect until three years from the time of making the last payment of benefits pursuant to R.S. 23:1221(1), (2), (3), or (4).

On appeal, Ms. Paul argues that there is no language in this statute that requires the “last payment” referred to in paragraph (2) of the statute to be the same form of indemnity benefits being claimed in her disputed claim for compensation. Rather, Ms. Paul asserts that prescription can be interrupted by the payment of any type of indemnity benefits. Ms. Paul acknowledges that the statute does carve out a particular exception as to supplemental earnings benefits, requiring a formal claim to be filed within three years from the last payment of benefits pursuant to La. R.S. 23:1221(1), (2), (3), or (4). She nevertheless contends that the broad language used in paragraph (2) of the statute — “[wjhere such payments have been made in any case, the limitation shall not take effect until the expiration of one year from the time of making the last payment ” (emphasis added) — indicates that a worker’s claim for indemnity benefits, including temporary total disability benefits, prescribes one year from the last payment of any type of indemnity benefits, whether it be temporary total disability benefits, permanent total disability benefits, supplemental earnings benefits, or permanent partial disability benefits. Ms. Paul concludes that since supplemental earnings benefits were last paid to her in April 2012, prescription on her claim for temporary total disability benefits would not accrue until April 2013. Accordingly, she contends that her disputed claim for compensation filed on July 18, 2012 is not prescribed.

The School Board responds that the “last payment” contained in paragraph (2) of the statute relates back to “such payments” contained in paragraph (2) of the statute, which indicates that the “last payment” means the same type of payment last made. It contends that the wording of the statute indicates that the Legislature intended temporary total disability benefits to prescribe one year after the last payment of temporary total disability benefits. It reasons that otherwise, the statute would not need to make a separate accommodation for supplemental earnings benefits by specifying that supplemental earnings benefits prescribe from the last payment of any benefit. It specifically argues that payment of supplemental earnings benefits does not interrupt prescription as to temporary total disability benefits. It concludes that since the last payment of temporary total disability benefits was undisputedly made to Ms. Paul in July 2009, her claim for temporary total disability benefits prescribed in July 2010.

Ms. Paul relies on Neese v. Papa John’s Pizza, 10-15 (La.App. 5 Cir. 6/29/10), 44 So.3d 321, in support of her position that the “last payment” referred to in paragraph (2) of the statute does not have to be the same form of indemnity benefits being claimed in her disputed claim for compensation. In Neese, a former employer had been paid temporary total disability benefits through July 2006. He left that employment shortly thereafter. While working for another company, he reinjured himself in December 2007. He filed a disputed claim for compensation on December 1, 2008 against his current employer. The current employer filed a cross-claim against the former employer. In its ruling, this Court held that because the claimant had filed a suit within three years of his last payment, there still existed a claim for supplemental earnings benefits. This Court noted that claims for supplemental earnings benefits survive for three years of the “last payment of benefits pursuant to R.S. 23:1221(1), (2), (3), or (4).”

Despite Ms. Paul’s contention, we find that Neese is distinguishable from the facts before us in the instant case. In Neese, the claimant was paid temporary total disability benefits from May 30, 2006 until July 11, 2006, at which time he went back to work. Importantly, he did not receive any indemnity payments of any kind for over one year after July 11, 2006. After having been involved in an accident with his second employer in December 2007, the first employer issued the claimant a check on January 30, 2008. The first employer argued that the check was sent in error as the claimant was not entitled to any further benefits. This Court found that the claimant’s claim for temporary total disability benefits had prescribed one year after he received his last temporary total disability payment, ie., one year from July 11, 2006. Because the claimant had not been paid any compensation benefits at all for over one year after July 11, 2006, any claim for temporary total disability benefits had prescribed. This Court found that the claimant’s right to supplemental earnings benefits had not prescribed because less than three years had elapsed between the date the last compensation payment had been made (July 11, 2006) and the date the disputed claim for compensation was filed (April 9, 2008). This Court also ruled that once a claim for temporary total disability benefits prescribes, it could not be revived.

In the case before us, unlike in Neese, there has never been a one-year lapse in payment of indemnity benefits. The record in this case indicates that Ms. Paul was paid temporary total disability benefits covering the period from her injury in March of 2009 until July 2, 2009. She prevailed in the disputed claim for compensation filed on December 1, 2010, alleging that her benefits had been wrongfully terminated. The February 13, 2012 Consent Judgment awarded Ms. Paul supplemental earnings benefits from the date of her injury until January 31, 2012, at which time supplemental earnings benefits payments were continued until Ms. Paul was “placed in a job that has been approved by her treating physician.”

The School Board relies on Robbins v. Schumpert Med. Ctr., 35,932 (La.App. 2 Cir. 4/3/02), 814 So.2d 737, writ denied, 02-1521 (La.9/30/02), 825 So.2d 1192, in support of its position that once temporary total disability benefits have prescribed, supplemental earnings benefits payments do not restart the prescriptive period for further temporary total disability benefits. However, we find that Robbins is also distinguishable from the case at bar. On appeal in Robbins, the claimant sought reversal of the trial court’s finding that she was not entitled to supplemental earnings benefits. The trial court in Robbins had held that the claimant was not entitled to temporary total disability benefits; the claimant did not appeal that finding. The Robbins court did recognize the different prescriptive periods for seeking supplemental earnings benefits and temporary total disability benefits, stating: “A claimant seeking [temporary total disability benefits] must file his or her claim within one year of the last payment, and a claimant seeking [supplemental earnings benefits] must file his or her claim within three years of the last payment.” Id. at 742. The Robbins court did not, however, define “last payment” with regards to temporary total disability payments.

The issue before us as to whether payment of supplemental earnings benefits interrupts prescription as to a claimant’s right to recover temporary total disability benefits appears to be res nova. Accordingly, in resolving this issue, we must look to the principles regarding judicial interpretation of statutes.

The central question in all cases of statutory interpretation is determination of the Legislature’s intent and the reason that prompted the Legislature to enact the law. In re Succession of Boyter, 99-0761 (La.1/7/00), 756 So.2d 1122, 1128. The rules of statutory interpretation are designed to ascertain and enforce the intent of the Legislature. Id.; Stogner v. Stogner, 98-3044 (La.7/7/99), 739 So.2d 762, 766. Because legislation is the solemn expression of legislative will, interpretation of a law primarily involves a search for the Legislature’s intent. La. C.C. art. 2; Lockett v. State, Dept. of Transp. and De velopment, 03-1767 (La.2/25/04), 869 So.2d 87, 90.

When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the Legislature. La. C.C. art. 9; Lockett, 869 So.2d at 90-91. When the language of the law is susceptible of different meanings, it must be interpreted as having the meaning that best conforms to the purpose of the law, and the words of law must be given their generally prevailing meaning. La. C.C. arts. 10 and 11; Lockett, 869 So.2d at 91. When the words of a law are ambiguous, their meaning must be sought by examining the context in which they occur and the text of the law as a whole, and laws on the same subject matter must be interpreted in reference to each other. La. R.S. 1:3; La. C.C. arts. 12 and 13; Lockett, 869 So.2d at 91.

The meaning and intent of a law is determined by considering the law in its entirety and all other laws on the same subject matter and placing a construction on the provision in question that is consistent with the express terms of the law and with the obvious intent of the Legislature in enacting it. Boyter, 756 So.2d at 1129; Stogner, 739 So.2d at 766. The statute must, therefore, be applied and interpreted in a manner, which is consistent with logic and the presumed fair purpose and intention of the Legislature in passing it. Boyter, 756 So.2d at 1129. This is because the rules of statutory interpretation require that the general intent and purpose of the Legislature in enacting the law must, if possible, be given effect. Id.

The purpose of the Louisiana Workers’ Compensation Law is “[t]o provide for the timely payment of temporary and permanent disability benefits to all injured workers who suffer an injury or disease arising out of and in the course and scope of their employment as is provided in this Chapter.” La. R.S. 23:1020.1(B)(1). This law is “to be interpreted so as to assure the delivery of benefits to an injured employee in accordance with this Chapter.” La. R.S. 23:1020.1(0(1).

The Louisiana Workers’ Compensation Act is remedial in nature, and in interpreting its statutes, the courts must keep in mind the policies and purpose behind the workers’ compensation laws. Dufrene v. Video Co-Op, Louisiana Workers’ Comp. Corp., 02-1147 (La.4/9/03), 843 So.2d 1066, 1074. To give effect to its intent, courts are bound to construe the statutes liberally in favor of providing compensation to the injured worker. Id. at 1075.

The jurisprudence has liberally construed the time limits for institution of a claim for benefits. Reinhardt v. City of New Orleans, 09-1116 (La.App. 4 Cir. 1/13/10), 30 So.3d 229, 237. Prescription statutes, including La. R.S. 23:1209(A), are construed in favor of maintaining rather than barring actions. Id.

La. R.S. 23:1209(A)(1) provides, in pertinent part:

In case of personal injury, ... all claims for payments shall be forever barred unless within one year after the accident ... the parties have agreed upon the payments to be made under this Chapter, or unless within one year after the accident a formal claim has been filed as provided in Subsection B of this Section and in this Chapter.
(Emphasis added.)

La. R.S. 23:1209(A)(2) provides, in pertinent part:

Where such payments have been made in any case, the limitation shall not take effect until the expiration of one year from the time of making the last payment, ....
(Emphasis added.)

Paragraph (1) of the statute clearly applies to “all claims for payments,” which obviously includes payments of temporary total disability benefits, permanent total disability benefits, supplemental earnings benefits, and permanent partial disability benefits. Paragraph (2) of the statute addresses “such payments ... in any case” and “last payment,” which in our opinion obviously relate and refer back to “all claims for payments” made in paragraph (1) of the statute. In summary, upon review, we find that “such payments ... in any case” and “last payment” contained in paragraph (2) of the statute obviously relate and refer back to “all claims for payments” contained in paragraph (1) of the statute, which includes payments of temporary total disability benefits, permanent total disability benefits, supplemental earnings benefits, and permanent partial disability benefits. This interpretation of the statute is consistent with the express terms of the workers’ compensation statute as a whole and with the obvious purpose and intent of the Legislature in enacting it. Accordingly, the School Board’s arguments notwithstanding, based on our interpretation of La. R.S. 23:1209(A)(1) and (2), payment of supplemental earnings benefits interrupts prescription as to claims for temporary total disability benefits.

Upon review, we find that Ms. Paul continuously received indemnity benefits (first temporary total disability benefits, followed by supplemental earnings benefits) for the injury that the School Board deemed compensable from the date of her initial injury on March 6, 2009 until April 12, 2012, when she underwent surgery for a condition related to the initial injury. She was unable to work after the surgery. Because of her total disability status following the surgery, the School Board terminated her supplemental earnings benefits. On July 11, 2012, within one year of termination of her supplemental earnings benefits, Ms. Paul filed a disputed claim for compensation, seeking temporary total disability benefits. Applying the above-discussed rules of statutory interpretation to the particular facts of this case, we find that the workers’ compensation court judge erred in finding that Ms. Paul’s claim for temporary total disability benefits had prescribed. We also find that it would go against the legislatively-declared policy and intent of the Louisiana Workers’ Compensation Laws, including La. R.S. 23:1209(A)(1) and (2), to find that Ms. Paul’s claim for temporary total disability benefits had prescribed when she became temporarily totally disabled as a result of surgery for a condition related to her initial injury that the employer deemed com-pensable, in light of the fact that she had been receiving indemnity benefits (first temporary total disability benefits, followed by supplemental earnings benefits) continuously from the date of her initial injury until the date of the surgery.

CONCLUSION

For the foregoing reasons, we reverse the judgment under review and remand the matter for further proceedings consistent with this opinion.

REVERSED AND REMANDED

      . La. R.S. 23:1221(1), (2), (3), and (4) provide for the payment, respectively, of temporary total benefits, permanent total benefits, supplemental earnings benefits, and permanent partial disability benefits.

      . The School Board argues on appeal that an affidavit of its claims adjuster submitted at the hearing on the exception establishes that Ms. Paul received supplemental earnings benefits only from December, 2010 forward until her surgery in April 2012. We find this argument to be unpersuasive, however, in light of the language contained in the Consent Judgment dated February 13, 2012 that the payment of $13,000.00 made to Ms. Paul as a result of the Consent Judgment was "in satisfaction of her claim of [sic] Supplemental Earnings Benefits (SEB) with said payment to be inclusive from the date of the alleged injury [March 6, 2009] through and including January 31, 2012." (Emphasis added.) Also, as noted above, the Consent Judgment further reserved to each party "their right to file additional claims in the future should the need arise," which is exactly what Ms. Paul did in filing her claim for the temporary total disability benefits at issue herein.


author: ROBERT A. CHAISSON, Judge.

text:
    Alana STIRGUS Individually and as the Tutrix of A.S. v. ST. JOHN THE BAPTIST PARISH SCHOOL BOARD, Larry Dauterive, Ronald Barrilloux, Children’s Hospital, Dr. Carmen Begue and ABC Insurance Companies.
    No. 13-CA-15.
    Court of Appeal of Louisiana, Fifth Circuit.
    July 30, 2013.
    Michael T. Beckers, Attorney at Law, Baton Rouge, Louisiana, for Plaintiff/Ap-pellee.
    Kevin P. Klibert, Attorney at Law, Reserve, Louisiana, for Defendant/Appellant.
    Panel composed of Judges ROBERT A. CHAISSON, STEPHEN J. WINDHORST, and HANS J. LILJEBERG.
   ROBERT A. CHAISSON, Judge.

| aThis is an appeal by the St. John the Baptist School Board, and two of its football coaches, Larry Dauterive and Ronald Barrilloux, from a judgment in favor of Armaud Stirgus, for injuries that he suffered during a football practice at the school. Mr. Stirgus has answered the appeal seeking an increase in the award of damages. For the following reasons, we reduce the amount awarded for medical expenses. In all other respects, the judgment is affirmed.

FACTS AND PROCEDURAL HISTORY

Armaud Stirgus was a student at East St. John High School and played on its football team. On January 22, 2007, during an outdoor off-season practice session, it began raining heavily, so coaches Dau-terive and Barrilloux decided to move the practice into the gym. While outside, the players wore shorts and shirts, and had their cleats on. They were instructed to go back to the locker room and change into dry clothes and tennis shoes for inside practice. Although there was conflicting evidence as to whether all of the players changed, it was not disputed that even lathose players who put on dry clothes had to cross an uncovered expanse of about 25 yards in the continuing rain to get from the locker room to the gym.

Once in the gym; about twenty of the players, including Mr. Stirgus, began running full speed passing patterns, which generally involved the receiver going a few steps forward and then making a cut to the side where the quarterback would deliver the ball. While running a pass route, Mr. Stirgus jumped for the ball, but when he came down his feet slipped out from under him and he injured his hip on impact with the floor. He sat out the remainder of the Monday practice and went home on the school bus. Later that evening his mother took him to an emergency room where he was diagnosed as having a muscle spasm in his hip. He continued to have pains over the next few days, and a second examination on Friday showed a fractured hip. Dr. Joseph Gonzales, Jr., a pediatric orthopaedic surgeon, performed surgery on Mr. Stirgus, using a plate and screws to stabilize the joint.

Suit was brought against the school and the coaches, alleging that they had failed to provide proper supervision and had allowed an unreasonable risk of injury to develop during the indoor practice. The parties stipulated to medical expenses of $21,626.57. After a bench trial, the trial judge awarded Mr. Stirgus $50,000 in past pain and suffering, and also awarded medical expenses of $71,871.71, which was $50,245.14 more than the stipulated amount. This appeal followed.

LAW AND ANALYSIS

We first address the issue of the award for medical expenses. At the beginning of the trial, Michael T. Beckers, Mr. Stirgus’s counsel, entered the following stipulation:

Your honor, included in the medical records are the bills. And I’d like just for the record to state that we're stipulating as to the amount of the medical bills incurred, that there’s going to be some confusion in |4there because there were charges in excess of what Medicaid paid. And the Medicaid covered bills are $16,165.77.
We have additional bills from Dr. Chandenia (phonetically) of $956. Those records were introduced. And additional bills of $4,504.80 from St. John Physical Therapy.
The total medical bills incurred today (sic) are $21,626.57.

Despite this stipulation, the trial judge awarded $71,871.71 in medical expenses, $47,208 of which was for bills from Children’s Hospital. Those bills were paid by Medicaid according to its fee schedule, rather than what the hospital showed as its normal charges. This difference is not collectible from Mr. Stirgus, and thus it was error to award him this difference. This is precisely the confusion that the stipulation was meant to avoid, and the trial judge was clearly wrong in awarding any amount other than the stipulated amount. We thus amend the judgment to provide that the proper award for all past medical expenses is $21,626.57.

We next address the issue of liability. In Robinson v. Jefferson Parish School Bd., 08-1224 (La.App. 5 Cir. 4/7/09), 9 So.3d 1035, 1046-47, this court summarized the law relating to the liability of schools for injury to their students as follows:

A school board, through its agents and teachers, owes a duty of reasonable supervision over students. The supervision required is reasonable, competent supervision appropriate to the age of the children and the attendant circumstances. This duty does not make the school board the insurer of the safety of the children. Constant supervision of all students is not possible nor required for educators to discharge their duty to provide adequate supervision.
Before liability can be imposed upon a school board for failure to adequately supervise the safety of students, there must be proof of negligence in providing supervision and also proof of a causal connection between the lack of supervision and the accident.
To establish a claim against a school board for failure to adequately supervise the safety of its students, a plaintiff must prove: (1) negligence on the part of the school board, its agents, or teachers in | ^providing supervision; (2) a causal connection between the lack of supervision and the accident; and (3) that the risk of unreasonable injury was foreseeable, constructively or actually known, and preventable if a requisite degree of supervision had been exercised. [citations omitted ]

In the present case, the ultimate issue is whether the coaches were negligent in permitting a full speed practice to be conducted in the gym in the conditions that then prevailed, and the paramount factual question in this regard is whether the floor was wet. The evidence on this point was varied. There was no dispute that the players had been caught in the rain during the outside practice and had come into the locker room to change their clothes and shoes. It was also not seriously disputed that some of the players may not have changed before coming to the gym, and further, that even if all of the players had changed they still had to traverse an open space of about 25 yards in the rain to get from the locker room to the gym. There was also general agreement that about 20 players were executing the fourth pass route when the accident occurred, which meant that between 45 and 80 individual pass routes had already been run with at most possibly one prior mishap.

As to the condition of the floor, Mr. Stirgus testified that he did not see any water on the floor in the area where the passing drills were being run, but he did see water on other parts of the gym floor. He said that after he fell he noticed that his gym shorts were wet on the spot where they hit the floor, and he also noticed some wet streaks on the floor in the same area. He also said that another player had slipped down in that area before him. He was also sure that he had changed into dry clothes before coming into the gym. The two coaches both testified that they did not recall water being on the floor where the drills were being run, and both said that Mr. Stirgus was the only person to fall that day. Brandon Kephart, the player who was next in line behind Mr. Stirgus to run the pass route, testified by way of deposition. He said that he did not see any water on the floor where Mr. |fiStirgus fell, but that it appeared that his shoes did not get any traction on the floor when he came down and that his feet just went out from under him. He did not see any other player fall that day. He also did not think that Mr. Stirgus had changed out of his wet clothes before coming to the gym.

Gerald George, Ph.D., was accepted as an expert in biomechanics. He reviewed all of the pre-trial depositions and other evidence, and concluded that considering all of the factors at work at the time of the accident, it was his opinion that the coaches performed inadequate supervision in conducting full speed drills in the gym, given the prevailing conditions. This opinion was predicated, of course, on a finding that the floor of the gym was wet where Mr. Stirgus fell, and that this damp condition was thus causally related to his injury.

Resolution of the above discrepancies involves factual determinations, and therefore the appellate standard of review of these determinations is manifest error. Stobart v. State through DOTD, 617 So.2d 880 (La.1993). In Stobart, the court explained that the question is not whether the reviewing court would have made different findings had it been sitting as the trier of fact. It is rather whether, viewing the record as a whole, a reasonable trier of fact could have made the findings at issue on appeal. The court concluded that “where two permissible views of the evidence exist, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong.” Id. at 883.

In the present case, there was conflicting evidence as to whether there was water on the floor where Mr. Stirgus fell. Although the coaches and the other player did not notice any water, Mr. Stirgus said that he noticed that his shorts were wet after the fall, and he saw streaks of water on the floor at that time. There was evidence to show that some of the players did not change into dry clothes, and it was undisputed that even those that had changed had to go back out into the rain |7to get from the locker room to the gym. Considering all of this conflicting evidence, it is clear that a finding that the floor was wet was based on a reasonable view of that evidence. It is equally clear that it was reasonable on the entire record to find that the coaches did not properly supervise the practice, but rather allowed full speed drills involving quick turns and leaping for balls in a situation where it would not be unexpected to have hazardous wet floor conditions. Because the above findings of fact are based on a reasonable view of the evidence, they are not manifestly erroneous, and we may not set them aside.

The final issue concerns the $50,000 award for general damages, which plaintiff contends is too low and which erroneously does not include an award for future pain and suffering. Appellate review of damage awards was addressed in McDonald v. AIG Nat. Ins. Co., Inc., 10-751 (La.App. 5 Cir. 3/29/11), 63 So.3d 240, 241-42, as follows:

Vast discretion is accorded the trier of fact in fixing general damage awards. La. Civ.Code art. 2324.1; Dufrene v. Gautreau Family, LLC 07-467 (La.App. 5 Cir. 2/22/08), 980 So.2d 68, 81, writs denied, 08-629 (La.5/9/08), 980 So.2d 694 and 08-628 (La.5/9/08), 980 So.2d 698. The trier of fact is afforded much discretion in assessing the facts and rendering an award because it is in the best position to evaluate witness credibility and see the evidence firsthand. Bouquet v. Wal-Mart Stores, Inc., 08-309 (La.4/4/08), 979 So.2d 456, 459. This vast discretion is such that an appellate court should rarely disturb an award of general damages. Youn v. Maritime Overseas Corp., 628 So.2d 1257, 1261 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994). Thus, the role of the appellate court in reviewing general damage awards is not to decide what it considers to be an appropriate award, but rather to review the exercise of discretion by the trier of fact. Youn, 623 So.2d at 1260. To determine whether the fact finder has abused its discretion, the reviewing court looks first to the facts and circumstances of the particular case. Bouquet v. Wal-Mart Stores, Inc., supra, 979 So.2d at 459.
The severity and duration of the injured person’s pain and suffering are the primary considerations in assessing general damages. Francis v. Brown, 95-1241 (La.App. 3 Cir. 3/20/96), 671 So.2d 1041. An appellate court may raise the award to the lowest reasonable amount or reduce it to the highest reasonable amount, only if articulable ^reasons are found to show that a reasonable trier of fact could not have made the award under all of the circumstances of the case. Williams v. Maritime, Inc., 04-625 (La.App. 5 Cir. 11/30/04), 889 So.2d 1055, writ denied, 04-3226 (La.3/11/05), 896 So.2d 72.

Here, Mr. Stirgus’s medical course was described by Dr. Gonzales, the pediatric orthopaedic surgeon who operated on him. Dr. Gonzales noted that on the Monday when X-rays were taken, they did not show a dislocation or fracture of the hip. However, by Friday a dislocation had indeed 'occurred, probably due to pressure from normal movements of the joint. He immediately did surgery to place the bone back in the socket, and subsequently inserted a plate with pins to prevent the dislocation from recurring. Mr. Stirgus had limited motion and weight bearing in the joint for two months. During the third month rehabilitation was done, and by the end of that month he was basically back to normal as to weight bearing. Dr. Gonzales said that just to be sure that the joint had healed, he waited until July of 2007 to release him for full activities. He saw Mr. Stirgus occasionally until February of 2008. His conclusion was that he had fully recovered for all activities by that time.

As to future problems, Dr. Gonzales said that Mr. Stirgus might feel discomfort when the weather changes and that he might be susceptible to arthritic developments later in life, but declined to give any estimate of the likelihood of such problems. He explained that there are so many factors that bear on future arthritic conditions, including heredity, that any numerical rating of this eventuality would be impossible.

Mr. Stirgus testified that he continues to have pain from the injury, but did not show that he has sought further medical treatments. He said that he had hoped to have a university sports career, but presented no other evidence to show that this was anything more than speculation on his part.

^Considering all of the above evidence, this court is unable to articulate any reasons why an award of $50,000 for past pain and suffering, and no award for future pain and suffering, constitutes an abuse of the trial judge’s vast discretion in fixing damages. In this circumstance, we must affirm that award.

CONCLUSION

For the foregoing reasons, we amend the judgment by reducing the award for total medical expenses to the stipulated amount of $21,626.57. In all other respects, the judgment is affirmed.

AMENDED, AND AS AMENDED, AFFIRMED.

      . Because Armaud was a minor at the time, the initial suit was brought on his behalf by his mother, Alana Stirgus.


author: HANS J. LILJEBERG, Judge.

text:
    MRB MORTGAGE, INC. v. Sheriff Wayne L. JONES, Tax Collector, St. John the Baptist Parish, Janet J. Sam and Femon J. Sam.
    No. 13-CA-61.
    Court of Appeal of Louisiana, Fifth Circuit.
    July 30, 2013.
    Robert R. Faucheux, Jr., Attorney at Law, Laplace, LA, for Defendants/Appellants.
    Panel composed of Judges ROBERT A. CHAISSON, STEPHEN J. WINDHORST, and HANS J. LILJEBERG.
   HANS J. LILJEBERG, Judge.

12This lawsuit commenced on August 30, 2010, when plaintiff, MRB Mortgage, Inc. (“MRB”), filed a “Petition for Damages, and Rule to Show Cause why the Sheriff Tax Sale held on May 28, 2003 should not be declared an Absolute Nullity,” against Sheriff Wayne Jones of St. John the Baptist Parish, in his capacity as Sheriff and Tax Collector, and Janet and Femon Sam (“the Sams”). In its petition, MRB alleged that it had a mortgage interest in the property located at 652 West 2nd Street, Laplace, Louisiana, and that the property was sold at a tax sale on May 28, 2003, without proper notification to MRB. MRB sought a judgment declaring the tax sale to be an absolute nullity, as well as damages and attorney fees. It also requested that any subsequent judgment predicated on the tax sale be declared an absolute nullity as well.

Throughout this litigation, the Sams have contended that they purchased both the tract of land and the commercial improvements located at 652 West 2nd Street in Laplace, Louisiana, at the tax sale on May 28, 2003. Eldridge Bartholomew, Sr. was the owner of this tract of land prior to the tax sale. The Sams have also maintained that Sheriff Jones conducted the tax sale according to the applicable law and that the tax sale validly conveyed ownership of the tract of land and the commercial improvements to the Sams.

|sOn September 30, 2010, the trial court conducted a hearing in this matter, but no testimony was taken and no evidence was admitted at the hearing. Thereafter, on November 30, 2010, the trial court rendered a judgment granting MRB’s petition to annul the tax sale of May 28, 2003.

Motions for new trial were filed by the Sams, St. John the Baptist Parish, and Sheriff Jones as tax collector, and they came for hearing before the trial court on January 21, 2011. Again, no testimony was taken and no evidence was admitted at this hearing. On March 25, 2011, the trial court rendered a judgment denying the motions for new trial filed by defendants, stating that the court was reaffirming its finding that the tax sale on May 28, 2003, was an absolute nullity.

The Sams and Sheriff Jones as tax collector filed appeals with this Court to challenge the trial court’s judgments, which ruled that the tax sale on May 28, 2003, was an absolute nullity. In its opinion, this Court vacated the trial court’s judgments finding the tax sale to be an absolute nullity, because no trial was held, no testimony was taken, and no evidence was admitted at the hearings in this matter. MRB Mortgage, Inc. v. Jones, 11-845 (La.App. 5 Cir. 3/13/12), 90 So.3d 1104, 1107. This Court found that the rendering of a final judgment without conducting a trial at which all parties were allowed to submit evidence was error, and this Court remanded the case back to the trial court. Id.

On remand, trial of this matter was held on August 1, 2012, at which testimony was taken and evidence was introduced and admitted. Thereafter, on September 24, 2012, the trial court rendered a judgment denying MRB’s petition to declare the May 28, 2003, tax sale an absolute nullity, and the court provided written reasons for its judgment. The Sams have filed the instant appeal.

14LAW AND DISCUSSION

In their “Motion for Suspensive Appeal,” the Sams state that they agree with the trial court’s denial of MRB’s petition to declare the tax sale an absolute nullity. However, they assert that they disagree with “certain findings” made by the trial court in its reasons for judgment and seek reversal of those findings. In their brief on appeal, the Sams indeed set forth two of the trial court’s findings that they claim to be error.

LSA-C.C.P. art. 2082 defines an “appeal” as “the exercise of the right of a party to have a judgment of a trial court revised, modified, set aside, or reversed by an appellate court.” (Emphasis added). The jurisprudence has consistently provided that appeals are taken from a judgment, not the written reasons for judgment. See Greater New Orleans Expressway Commission v. Olivier, 02-2795, p. 3 (La.11/18/03), 860 So.2d 22, 24; Parish of St. Charles v. Young, 99-411, p. 3 (La.App. 5 Cir. 12/15/99), 750 So.2d 276, 278; Wilson v. Wilson, 30,445, p. 13 (La.App. 2 Cir. 4/9/98), 714 So.2d 35, 42. See also LSA-C.C.P. art. 2083. Courts of appeal are constrained to review judgments on appeal. Dawson v. Terrebonne General Medical Center, 10-2130, p. 13 (La.App. 1 Cir. 5/19/11), 69 So.3d 622, 630.

The Sams have clearly indicated that they do not challenge the ruling in the trial court’s September 24, 2012, judgment, denying MRB’s petition to declare the tax sale an absolute nullity. Rather, they disagree with particular factual findings that are contained in the trial court’s “discussion” or reasons for judgment. Specifically, the Sams contend that the trial court erred in. finding that MRB had a valid mortgage on the property and that the trial court erred in finding that the Sams only purchased the commercial improvements and not the tract of land or |sreal property at the tax sale. However, because an appeal lies from a judgment, not written reasons for judgment, we cannot consider the arguments set forth by the Sams on appeal. Accordingly, we must dismiss this appeal.

DECREE

For the foregoing reasons, we dismiss the appeal filed by Janet and Femon Sam.

APPEAL DISMISSED

      . We note that neither the Sams nor any other party has filed a- pleading seeking a declaration as to the scope or extent of the tax sale.