source: Caselaw Access Project

license: Public Domain

text:
    Susan Marie GISLESON v. Stephen Russell DEPUTY.
    No. 2013-CA-0150.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 7, 2013.

      Ryañ P. Reece, Allen H. Borne & Associates, New Orleans, LA, for PlaintiffiAp-pellee.
    Carolyn Bateman Hennesy, Hennesy Law, LLC, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge MAX N. TOBIAS, JR., Judge MADELEINE M. LANDRIEU, Judge JOY COSSICH LOBRAÑO).
   MAX N. TOBIAS, JR., Judge.

hThe defendant/appellant, Steven Russell Deputy, M.D., appeals from a judgment that settled the remaining issues in this divorce case between Dr. Deputy and his former wife, Susan Marie Gisleson. For the reasons that follow, we affirm the judgment.

Ms. Gisleson and Dr. Deputy met in San Francisco, California while he was in medical school and Ms. Gisleson was an undergraduate. They subsequently married in June 1992 in San Francisco. Before the marriage, Dr. Deputy had borrowed money (student loans) to attend school. The loans were repaid during the marriage. After he completed his residency, he, his wife, and their infant son moved to New Orleans where they remained married for 19 years.

In 2009, Dr. Deputy was diagnosed with cancer. He was given chemotherapy and underwent a bone marrow transplant in April 2010. When he returned from his treatment in California, Ms. Gisleson told him she wanted to separate. She moved out of the home on 1 July 2010. The parties attended ^counseling for a few months without success. Thereafter, Ms. Gisleson informed Dr. Deputy that she was not returning to the marriage.

After living separate and apart for one year, Ms. Gisleson filed for divorce pursuant to La. C.C. art. 103 and sought permanent spousal support, a division of the community of acquets and gains, and reimbursement for the value of Dr. Deputy’s student loans that were paid off during the marriage.

A trial was held in which both parties testified. In its 7 November 2012 judgment, the trial court: (1) held that the student loan debt incurred by Dr. Deputy before the marriage in the amount of $105,000 and satisfied with $171,000 of community funds was his separate debt; the court awarded Ms. Gisleson reimbursement of $85,500, being one-half of the community funds used to satisfy the debt in full; (2) held that the interest paid on Dr. Deputy’s student loans was not a community obligation and thus no reimbursement was owed to Dr. Deputy from community funds; (3) found that the student loan incurred by Ms. Gisleson during the marriage was a community obligation; (4) found that Ms. Gisleson was entitled to permanent spousal support; and (5) awarded Ms. Gisleson spousal support in the amount of $655 per month for 18 months.

Dr. Deputy appeals the judgment, arguing that the trial court erred in all of its rulings. In addition, he maintains that the trial court erred in excluding a writing that Ms. Gisleson admitted was written by her and upon which she was questioned. The document was proffered by Dr. Deputy. Finally, he contends that the trial Iscourt failed to issue reasons for judgment after a timely written request to do so. We dispose of this last issue first.

La. C.C.P. art.1917 requires the trial court, when requested by a party, to give written findings of fact and reasons for a contested judgment where the judgment may be appealed, provided the request is made not later than ten days after the mailing of the notice of the signing of the judgment. Dr. Deputy timely filed a request for written reasons on 19 November 2012. (The trial court’s duty under Article 1917 is mandatory.) However, it is “well settled” that the proper remedy for the trial court’s failure to comply with an article 1917 request is to apply for supervisory review or move for remand to compel the trial court’s compliance. Hall v. Folger Coffee Co., 03-1734, p. 5 n. 9 (La.4/14/04), 874 So.2d 90, 96 n. 9. No remedy was sought in this case. Therefore, this issue is waived.

Our review of the remainder of this case is governed by the manifest standard/clearly wrong standard of review. Thus we accord appropriate deference to the trial court’s decision.

Dr. Deputy’s first assignment of error is that the trial court erred when it awarded Ms. Gisleson reimbursement of $85,500 for his medical student loans incurred before the marriage and paid by the community. In essence, Dr. Deputy argues that, although the debts were incurred by him before the marriage, his medical education allowed him and his family a higher standard of living. Both the parties testified that his increased earning power allowed them a comfortable |4life and permitted Ms. Gisleson an opportunity to stay at home with their children and complete her college degree.

La. C.C. art. 2363 states in pertinent part:

A separate obligation of a spouse is one incurred by that spouse prior to the establishment of a community property regime, or one incurred during the existence of a community property regime though not for the common interest of the spouses or for the interest of the other spouse. [Emphasis supplied.]

The statute leaves no room for interpretation. Dr. Deputy admits that his student loans were his separate obligation. Admittedly, his education benefited the marriage but that does not convert the student loans into a community debt. In addition, both parties admit that community funds were used to satisfy the obligation.

In Katner v. Katner, 09-0974, p. 11 (La. App. 4 Cir. 12/23/09), 28 So.3d 566, 574-75, this court was presented with an identical situation:

Mr. Katner made one claim for reimbursement of the community funds in the amount of $14,004 for the payment of the separate debt of Ms. Katner. La. C.C. art. 2364 provides:
If community property has been used to satisfy a separate obligation of a spouse, the other spouse is entitled to reimbursement upon termination of the community property regime for one-half of the amount or value that the property had at the time it was used.
Prior to her marriage, Ms. Katner obligated herself for student loans for her legal education. During the marriage, Mr. Katner clearly testified from financial records and his personal knowledge that community funds were used to repay some of the outstanding principal and interest indebtedness. Ms. Katner agrees that the community paid more than $11,000, but quibbles about the difference. However, she did not offer any | ¡^documentary evidence to contradict Mr. Katner’s offer. Again, the trial court did not commit manifest error in accepting the evidence offered by Mr. Katner and finding that community funds in the amount of $14,004 were used to pay Ms. Katner’s separate obligation. [Footnote omitted.]

We find no reason to deviate from our holding in Katner. Thus, this assignment of error is without merit.

Next, Dr. Deputy asserts that the trial court erred in failing to find that the interest paid on his student loans was a community obligation for which no reimbursement was due. In making this argument, Dr. Deputy cites, inter alia, La. C.C. art. 2339 and Gill v. Gill, 39,406 (La.App. 2 Cir. 3/09/05), 895 So.2d 807.

Article 2339 states in pertinent part:

The natural and civil fruits of the separate property of a spouse, minerals produced from or attributable to a separate asset, and bonuses, delay rentals, royalties, and shut-in payments arising from mineral leases are community property. Nevertheless, a spouse may reserve them as his separate property as provided in this Article.

Dr. Deputy contends that the interest is the cost of the civil fruit that was his increased earning power. While this is an interesting argument, it is unsupported in the law or jurisprudence.

“Fruits” are defined in La. C.C. art. 551 as “things that are produced by or derived from another thing without diminution of its substance.” Civil fruits “are revenues derived from a thing by operation of law or by reason of a juridical act,.... ” Thus, pursuant to the Civil Code, Dr. Deputy’s increased earning power as the result of his medical education is not a “fruit.”

In Gill, supra, the court stated:

Nevertheless, interest on a separate debt is chargeable to the community where the debt is part of the | fiprice of (or secured by mortgage on) separate property which itself produces revenue. Hurta v. Hurta, 260 So.2d 324 (La.App. 4th Cir.1972). Wages are the premier community asset acquired through the effort, skill or industry of either spouse. Ross v. Ross, 02-2984 (La.10/21/03), 857 So.2d 384, 390[,] quoting K Spaht and W. Hargrave, Matrimonial Regimes, § 3.3 in 16 Louisiana Civil Law Treatise (2d Ed.1997); La. C.C. art. 2338.
A recent ruling applying Article 2364 addressed mortgage payments during the marriage made for separate debt on a spouse’s separate property which neither generated rent nor was used to benefit the community as the family home. Munson v. Munson, 00-348 (La.App. 3d Cir. 10/4/00), 772 So.2d 141, 145-146. The trial court awarded the reimbursement under Article 2364 for one-half of the total mortgage payment, including principal and interest.

Id. at pp. 16-17, 895 So.2d at 817. The cases cited by Dr. Deputy all involve separate immovable property purchased by one spouse before the marriage with community funds used to satisfy the mortgage and interest payments. We find no case that extends this codal article to obligations, such as student loans, borrowed by a spouse before the establishment of the community property regime. We decline to do so. This assignment of error is also without merit.

Dr. Deputy’s third assignment of error is that the trial court erred in finding that the student loan incurred by Ms. Gi-sleson was a community obligation, contending that it was a separate obligation under La. C.C. art. 2363, which states in pertinent part, “a separate obligation of a spouse is one incurred by that spouse ... during the existence of a community property regime, though not for the common interest of the spouses or for the interest of the other spouse.”

In support of this argument, Dr. Deputy points to Ms. Gisleson’s testimony wherein she stated that she completed college in 2009 and that she intended to leave the marital home immediately after she graduated. He contends that the 17student loan was not incurred solely for the benefit of the community and that she left the marriage before any benefit could be felt.

In response, Ms. Gisleson contends that this argument was never raised before the trial court and, thus, is not properly before this court. However, even if not waived, she argues that the loan was incurred just a few years into the marriage when it was contemplated by the parties that Ms. Gi-sleson’s degree would increase her earning capacity.

First, we disagree with Ms. Gisleson, finding that the issue was obviously raised in the court below. In fact, the trial court made a specific finding that the student loan debt was a community obligation; thus, the issue is properly before us.

However, we do agree with Ms. Gisle-son: the student loan is a community obligation. It is undisputed that the loan was incurred during the marriage. At the time, the parties knew (or should have known) that it was a community debt. It was then anticipated that her degree would benefit the marriage. The fact that Ms. Gisleson left college to care for her husband and children, finally receiving her degree in 2009, does not change the characterization of the debt. In addition, the trial court was in the best position to make this determination and we find no abuse of discretion on its part. This assignment of error is meritless.

Next, Dr. Deputy asserts that the trial court erred in failing to find that Ms. Gisleson abandoned the marriage, thereby precluding an award of permanent spousal support. He points to Ms. Gisleson’s testimony at trial: she admits that 1 sshe left the marital home without legal cause, he asked her to return, and she refused.

Ms. Gisleson testified that she decided to leave the marriage after Dr. Deputy physically abused her following a night of heavy drinking. She stated that she was fearful that such an occurrence would happen again. She also testified to the ongoing physical confrontations between Dr. Deputy and their adult son.

Dr. Deputy responds that she did not leave immediately after the abuse; she did not cite the abuse as a reason for leaving when they attended therapy together; he quit drinking after his cancer diagnosis; and often their son was the aggressor and Dr. Deputy was only defending himself. Ms. Gisleson agrees that she did not leave right away, but instead felt that she had a moral obligation to stay and take care of her husband while he underwent his cancer treatments for approximately 18 months. However, she testified that her fear of future abuse never abated.

The trial court is vested with vast discretion in the determination of fault because the issue turns largely on evaluations of witness credibility. Schmitt v. Schmitt, 09-0415, pp. 3-4 (La.App. 4 Cir. 12/16/09), 28 So.3d 537, 540, (citing Gilley v. Gilley, 07-0568, p. 3 (La.App. 5 Cir. 12/11/07), 976 So.2d 727, 728 and Jones v. Jones, 38,790, p. 12 (La.App. 2 Cir. 06/25/04), 877 So.2d 1061, 1070). A trial court’s factual findings regarding fault in the area of domestic relations are to be given great deference, and findings of fact on the issue of a spouse’s fault for the purposes of determining final periodic support will not be disturbed on appeal unless found to be manifestly erroneous. Washington v. Washington, 02-2226, p. 16 (La.App. 4 Cir. 4/23/03), 846 So.2d 895, 904.

In Schmitt, we stated:

1 ¡Although the code articles do not define fault, the comments to Article 111 indicate that “[f]ault continues to mean misconduct that rises to the level of one of the previously existing fault grounds for legal separation or divorce.” La. C.C. art. Ill, 1997 Revision Comment (c)(citing Allen v. Allen, 94-1090 (La.12/12/94), 648 So.2d 359). Fault thus includes habitual intemperance or excesses, cruel treatment or outrages, and abandonment. Walker v. Walker, 41,573, pp. 2-3 (La.App. 2 Cir. 11/1/06), 942 So.2d 605, 608. A spouse who petitions for final periodic support need not be totally blameless in the marital discord. Only misconduct of a serious nature, providing an independent contributory or proximate cause of the breakup, equates to legal fault. Gremillion v. Gremillion, 39,588, p. 11 (La.App. 2 Cir. 4/6/05), 900 So.2d 262, 269-70.
Although in determining entitlement to final periodic support the fault of the spouse from whom support is sought generally is not pertinent. However, an exception is recognized when the ground for establishing fault on the part of the claimant spouse is abandonment. Terry v. Terry, 06-1406, p. 8 (La.App. 3 Cir. 3/28/07), 954 So.2d 790, 796 n. 1 (citing Gitschlag v. Gitschlag, 593 So.2d 1331, 1335, n. 1 (La.App. 1st Cir.1991)). Cruel treatment by the other spouse may be sufficient to constitute lawful cause to leave. To prove cruel treatment a party needs to show a continued pattern of mental harassment, nagging, and griping by one spouse directed at the other so as to make the marriage insupportable. Gilley, 07-568 at p. 2, 976 So.2d at 728; Brewer v. Brewer, 573 So.2d 467 (La.1991)(noting that for cruel treatment to constitute fault, it must be of a nature which compel a separation because the marriage is insupportable). “When the degree of spousal fussing and bickering ... allows the finding of a pattern of harassment, unbraiding, nagging and griping, a determination by the trial court of cruel treatment has been found supported by the record.” Simon v. Simon, 96-876, p. 7 (La.App. 5 Cir. 5/14/97), 696 So.2d 68, 73 (quoting Guillory v. Guillory, 626 So.2d 826, 831 (La.App. 2d Cir.1993)). However, “[m]ere friction or dissatisfaction in the relationship or incompatibility between the spouses, however intense, is not enough to constitute cruel treatment or lawful cause for abandonment.” Adkins v. Adkins, 42,076, p. 4 (La.App. 2 Cir. 4/11/07), 954 So.2d 920, 923. Each must be decided on its own facts.

Schmitt, 09-0415 at pp. 3-5, 28 So.3d at 540-541.

| )nHere, Dr. Deputy admitted to striking his wife once while he was drunk, although he downplayed the occurrence during the trial. In any event, Ms. Gisleson testified that she did not feel safe even with the passage of time. The trial court heard the conflicting testimony and came to the conclusion that Ms. Gisleson established legal cause for leaving the marriage and, thus, was not at fault for abandonment. Based on the record before us, we cannot say that the court abused its vast discretion. This assignment of error is without merit.

In his last substantive assignment of error, Dr. Deputy argues that Ms. Gisle-son did not prove that she needed the spousal support awarded by the trial court. To support his argument, Dr. Deputy has poured over his ex-wife’s expenditures item by item. We decline to advise Ms. Gisleson that she is required to shop for groceries at Wal-Mart or Family Dollar, or set a price limit on what she can spend at restaurants. What is of primary importance is that Ms. Gisleson makes approximately $29,820 per year and provided evidence to the trial court that she is short $654.54 per month to meet her needs. We also note that Dr. Deputy is in a position to pay this amount; he makes over $100,000 per year. Despite her initial claim for $654.54 per month for five years, the trial court weighed the evidence and awarded her $655 per month for 18 months, or a total of $11,790. We do not find that the trial court abused its discretion in this matter.

Finally, Dr. Deputy argues that the trial court improperly excluded a letter written by Ms. Gisleson into evidence; the letter was proffered by him into the record for our review. This letter was written by Ms. Gisleson to Dr. Deputy; the therapist assigned both parties to write a letter to the other. Dr. Deputy contended that the letter was being used for impeachment purposes.

|nThe record reflects that Ms. Gisleson was questioned about the letter, admitted to writing it and answered truthfully regarding its contents, in particular that she did not state in the letter that she was leaving the marital home because of his spousal abuse. The trial court ruled that the letter was cumulative of Ms. Gisleson’s testimony and, therefore, inadmissible. Arguably the letter was a prior inconsistent statement and therefore admissible. See La. C.C. arts. 802 and 808. We find, however, that in this bench trial that the error of exclusion was harmless.

“Initially, we note that a trial judge has vast discretion concerning the admissibility of evidence. The trial judge’s decision to admit or exclude evidence will not be reversed on appeal absent a clear showing that he or she has abused that discretion.” Richardson v. Richardson, 07-0430, p. 9 (La.App. 4 Cir. 12/28/07), 974 So.2d 761, 769 (citing Boykins v. Boykins, 04-0999, p. 4 (La.App. 4 Cir. 4/24/07), 958 So.2d 70, 74; Boutte v. Kelly, 02-2451, p. 10 (La.App. 4 Cir. 9/17/03), 863 So.2d 530, 541.) After examining Ms. Gisleson’s testimony and the letter proffered by Dr. Deputy, we find that any error was harmless. The actual letter adds nothing to these proceedings. This assignment of error is also without merit.

Based on the foregoing, we affirm the judgment of the trial court.

AFFIRMED.

      . The record fails to reflect exactly when the loan was originally incurred. Dr. Deputy claims that it was late in the marriage while Ms. Gisleson states that it was about 15 years before the divorce.

      . Ms. Gisleson sought five years of support but was awarded support for 18 months.


author: Judge MAX N. TOBIAS, JR.

text:
    Robert R. LENIG v. TEXTRON MARINE AND LAND SYSTEMS (Textron Inc.).
    No. 2013-CA-0579.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 7, 2013.

      Robert John Young, III, Young, Ri-chaud & Myers, LLC, Metairie, LA, for PlaintiffiAppellant.
    Suzette M. Tagesen, Guillory Scott & Associates, L.L.C., Metairie, LA, for Defendant/Appellee.
    (Court composed of Judge MAX N. TOBIAS, JR., Judge MADELEINE M. LANDRIEU, Judge JOY COSSICH LOBRANO.)
   Judge MAX N. TOBIAS, JR.

hThe plaintiff, Robert R. Lenig (“Len-ig”), seeks review of the decision of the Office of Workers’ Compensation judge granting,the motion for summary judgment filed by Lenig’s former employer, Textron Marine and Land Systems, Inc. (“Textron”). For the reasons that follow, we affirm.

Lenig started employment with Textron as a welder on 14 March 2011. His schedule required that he work a ten-hours per day, four days per week. During his first week of training, Lenig missed work on 17 March 2011, which his time card reflects was due to illness. His time card for the following week indicates that he worked only on 21 and 24 March 2011. No explanation appears as to why he worked only two days that week. Finally, Lenig’s time card for the last week of March reveals that he worked on 28 and 29 March 2011.

Textron discharged Lenig on 30 March 2011. The separation notice states that Lenig lacked the ability to weld in accordance with Textron’s production standards.

On 6 April 2011, Lenig filed a claim with the U.S. Department of Labor for benefits under the Longshore and Harbor Workers’ Compensation Act (“LHWCA”), asserting an injury on 23 March 2011. On 22 April 2011, Lenig | ¡.provided a statement to Textron’s claims adjuster, Angela Kleamenakis, regarding an alleged injury sustained while working for Textron. He indicated confusion regarding the precise day of the injury. Lenig stated that he needed to look at his calendar.

First, Lenig provided the date of 20 March 2011. Then, Lenig guessed the date of 23 March 2011. When questioned by the interviewer, Lenig confirmed 23 March 2011 as the injury date. He averred that he sustained the injury while carrying welding test plates from the weld shop to a dumpster located behind the weld shop. He indicated that two plates welded together weighed thirty pounds. Lenig stated that his back and leg started hurting, and he thought it was from standing and that the pain got progressively worse.

Ultimately, on 16 June 2011, Lenig’s claim was determined not to fall within the ambit of the LHWCA. Lenig filed a disputed claim for compensation with the Office of Workers’ Compensation (“OWG”) on 13 March 2012. His submitted disputed claim for compensation form indicates he sustained an injury on 23 March 2011.

Textron filed a motion for summary judgment on 30 November 2012, arguing that Lenig could not establish the occurrence of a work-related accident.

First, Textron argued that Lenig’s time cards (which were attached to the motion) indicate that Lenig was not at work on 23 March 2011. Thus, Textron concluded that Lenig could not have sustained an injury in the course and scope of his employment on that day.

Further, Textron argued that the evidence did not corroborate the occurrence of a work-related accident, submitting in support thereof the affidavit of Carnell Bridges, the Textron supervisor of welders. Mr. Bridges averred that Lenig never | ¡¡reported a work-related accident and that Lenig presented him work excuses for 17 and 23 March 2011. Mr. Bridges further stated that Lenig did not indicate that he missed work as the result of a work-related accident.

Additionally, Textron submitted Lenig’s medical records, arguing that they do not corroborate the occurrence of a work-related accident.

Lenig’s prior service in the military allowed him to seek treatment at the Veterans Administration Hospital and its associated urgent care clinic (“VA”). The VA records indicate Lenig appeared at the urgent care clinic on 17 March 2011 regarding left leg pain that had started the day before. At the time, Lenig denied that the pain was associated with an injury. Rather, Lenig stated that he had started a new job and was walking more than normal.

The VA records state that Lenig appeared on 22 March 2011 and reported left ankle pain present for a week. Again, Lenig denied an injury to the ankle. Len-ig noted that he was standing for longer periods of time at his new job and that walking triggered pain. Lenig also mentioned numbness and tingling in his hands. The VA records note that Lenig appeared on 23 March 2011, complaining of a burning feeling in his chest. He indicated that he believed his neighbors were fooling around with chemicals. Lenig was observed at that time as having a normal gait. Lastly, the VA records reveal that Lenig appeared on 1 April 2011 at the urgent care clinic “with chronic left leg and left paraspinal muscles x 20 yrs that has worsened over the past month.” Again, the records indicate that Lenig reported that the pain was not associated with an injury. Lenig noted that he had been standing for ten hours per day at his job.

In opposition, Lenig argued that the statement he provided to Textron’s claims adjuster on 22 April 2011 indicated he was confused about the date of the Rinjury. Lenig attached his discovery responses to the opposition together with his affidavit. Lenig averred that during the process of lifting welding test plates, he felt pain in his lower left leg, and ultimately in his lower back. He stated that the problems began on or about 16 March 2011, asserted that he informed his supervisor of the problems with his leg and back resulting from lifting welding test plates, and that he had provided his supervisor slips from the VA. Lenig averred that Ms. Kleame-nakis contacted him to obtain a statement because he had advised Textron that he had suffered a work-related accident. Lastly, Lenig averred that he was mistaken in stating 23 March 2012 as the date of the accident.

After a hearing, the OWC issued a judgment granting Textron’s motion for summary judgment. The OWC opined that Lenig could not prove that he suffered an accident as defined by La. R.S. 23:1021(1). The OWC gave little weight to Lenig’s affidavit over the medical records, noting that Lenig’s affidavit was completed eight days prior to, and in anticipation of, the hearing on the motion for summary judgment. The OWC noted that the medical records did not support a work-related injury, whether utilizing 23 March 2011 as the date of injury, or any other day in March as the date of injury. The OWC noted that the vast majority of VA records indicated pain from repetitive motion, but that Lenig’s “[ejmployment of only 16 days on this job including days off as a welder by trade obviates significant times in which to validly claim entitlement to workers [sic] compensation benefits without suffering a ‘sudden and precipitous event.’ ”

Lenig timely appealed.

An appellate court reviews the granting of summary judgment de novo under the same criteria governing the trial court’s consideration of whether the summary judgment is appropriate. Reynolds v. Select Properties, Ltd., 93-1480, p. 2 (La.4/11/94),5 634 So.2d 1180, 1183. A summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that no genuine issue of material fact exists and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966 B. If the court finds that a genuine issue of material fact exists, then summary judgment must be rejected. Oakley v. Thebault, 96-0937, p. 3 (La.App. 4 Cir. 11/13/96), 684 So.2d 488, 490; Martinez v. American Steelway Industries, L.L.C., 09-0339, p. 3 (La.App. 4 Cir. 9/2/09), 20 So.3d 526, 528. The burden of proof does not shift to the party opposing summary judgment until the moving party presents a prima facie case that no genuine issues of material fact exist. Id. At that point summary judgment should be granted because if the party opposing the motion “fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.” La. C.C.P. art. 966 C(2); Martinez, 09-0339, p. 4, 20 So.3d at 528.

Lenig first argues that the OWC erroneously granted Textron’s motion for summary judgment as he presented sufficient proof that the date of the accident was 16 March 2011, not 23 March 2011. Further, he points to the 22 April 2011 recorded statement as evidence that Textron was aware of his confusion regarding the actual date of the accident. A close reading of the decision of the OWC reveals that the OWC found summary judgment to be appropriate whether the accident occurred on 23 March 2011 or on another day in March. The OWC focused on whether or not Lenig presented sufficient evidence to prove that an accident occurred while he was employed at Textron. Considering our finding below, wej^agree that whether the alleged accident occurred on 16 or 23 March 2011 is not relevant to our determination herein.

To recover in a workers’ compensation action, the claimant must establish “personal injury by accident arising out of and in the course and scope of his employment.” La. R.S. 23:1031 A. In this context, an accident is “an unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration.” La. R.S. 23:1021(1). The Louisiana Supreme Court has stated that:

An employee may prove by his or her testimony alone that an unwitnessed accident occurred in the course and scope of employment if the employee can satisfy two elements: (1) no other evidence discredits or casts serious doubt upon the worker’s version of the incident; and (2) the worker’s testimony is corroborated by the circumstances following the alleged accident. Bruno v. Harbert International, Inc., 593 So.2d 357, 361 [La.1992] (citing West v. Bayou Vista Manor, Inc., 371 So.2d 1146 (La.1979); Malone and Johnson, 13 Civil Law Treatise, Workers’ Compensation, Section 253 (2d Ed. 1980)). As we noted in Bruno, corroboration of the worker’s testimony may be provided by the testimony of fellow workers, spouses, or friends, or by medical evidence. Id.

Ardoin v. Firestone Polymers, L.L.C., 10-0245, p. 5 (La. 1/19/11), 56 So.3d 215, 218-219.

Both Lenig and Textron cite the Bruno decision in support of their arguments. Lenig points to the portion of the decision where the Court states that an employee’s testimony alone is sufficient to establish a work-related accident. See Bruno, 593 So.2d at 361. Textron notes that in an unwitnessed accident, such as the one here, there must be no other evidence that discredits the worker’s 17version of the incident, and the worker’s testimony must be corroborated by circumstances following the alleged incident. Id.

Lenig argues that his affidavit and the recorded statement provided on 22 April 2011 point to the occurrence of an accident while he was in the course and scope of his employment with Textron. Further, Len-ig avers that the medical records reveal that he mentioned work as the cause of his pain and argues that “an ‘accident’ exists when heavy lifting or other strenuous efforts, although usual and customary, cause or contribute to a physical breakdown or accelerate its occurrence because of a preexisting condition,” citing Bruno, 593 So.2d at 360.

Nonetheless, as this court has noted, Bruno requires corroboration of Lenig’s testimony. See Shelvin v. Intralox, L.L.C., 06-1418, p. 9 (La.App. 4 Cir. 5/9/07), 957 So.2d 852, 857. In Shelvin, the claimant relied on her deposition testimony to defeat a motion for summary judgment by establishing that an accident occurred during the course and scope of her employment. Id. This court noted that

[t]he medical records contain no mention of any accident or any reference to work restrictions. This and the fact that the plaintiff continued to work for a year after the alleged accident doing the same work casts uncertainty on the reliability of her testimony. Her own un-contradicted testimony alone will not be sufficient for her to bear her burden of proof at trial — she must -have corroboration, and there is nothing in the record to show that she could produce such corroboration at a trial on the merits. An affidavit from a co-worker might have sufficed; something in the medical records referring to the lifting incident or suggesting work limitations might have created a genuine issue of material fact sufficient to warrant referring the matter to the trier of fact at a trial on the merits.

Shelvin, p. 10, 957 So.2d at 858.

Lenig’s affidavit and the recorded statement refer to an accident that occurred during the course and scope of his employment with Textron, which | «resulted in an injury. Yet, he fails to provide corroboration of the accident. Lenig presented Tex-tron work excuses from the VA that lacked any mention of a work-related accident, any work limitations, or even the reason for the visit to the VA. The VA record for the 17 March 2011 visit reveals that Lenig stated that he had been exerting himself more than he was used to as he started a new job and that he had been walking more than usual. The VA record for the 22 March 2011 visit indicates that Lenig stated that he had been standing at work for long periods, and that walking triggered the pain. In both visits, he denies an injury. Lastly, the VA record for the 1 April 2011 visit indicates that Lenig complained of “chronic left leg and left para-spinal muscles x 20 yrs that has worsened over the past month.” He reported that he had been standing ten hours a day at a job. At all three visits, Lenig specifically denied that his pain was due to an injury. No medical record indicates heavy lifting or other strenuous efforts led to Lenig’s complaints of pain. Instead, the VA records indicate Lenig complained of pain after walking or standing. Neither walking nor standing are strenuous efforts in the context of this case and therefore do not constitute an accident as contemplated by La. R.S. 23:1021(1).

Our de novo review has disclosed no evidence sufficient to create a genuine issue of material fact concerning Lenig’s ability to corroborate his testimony or to dispel the doubtful circumstances of his version of the incident. No trial on the merits is warranted.

Accordingly, the judgment of the OWC is affirmed, and Robert Lenig’s claim is dismissed with prejudice.

AFFIRMED.

      . The OWC utilized the alternate accident date of 15 March 2011. We find this to be a typographical error as Lenig argued that the accident occurred on 16 March 2011.


author: CRAIN, J. THERIOT, J.,

text:
    Larry CUTRER v. OPEN RANGE RV COMPANY.
    No. 2012 CA 2046.
    Court of Appeal of Louisiana, First Circuit.
    Aug. 13, 2013.
    Byard Edwards, Jr., Hammond, Louisiana, for Plaintiff/Appellant, Larry Cutrer.
    Jeffrey C. Cashe, Hammond, Louisiana, for Defendant/Appellee, Open Range RV Company.
    BEFORE: GUIDRY, CRAIN, and THERIOT, JJ.
   CRAIN, J.

| zLarry Cutrer appeals the dismissal of his redhibition suit against Open Range RV Company. The trial court found that Cutrer’s claims were extinguished by a compromise. We reverse and remand.

FACTS AND PROCEDURAL HISTORY

Cutrer filed a Petition in Redhibition against Open Range based upon allegations that he purchased a recreational vehicle trailer (“RV”) from Open Range that contained numerous vices and defects. Cutrer sought to rescind the sale and recover the purchase price, all costs of the sale, reimbursement for any note payments, attorney’s fees and damages for aggravation and inconvenience.

In an effort to resolve the claim, Cut-rer’s counsel forwarded a letter to Open Range’s counsel that said, in part, “Here is a very realistic settlement proposal. My client wishes to follow the law i.e. rescind the return sale price [sic], associated costs, attorneys fees and loss of recreation and enjoyment values.” The letter included the following itemization:

Down Payment $40,210.00
Monthly Payments $301.26 x 13 $3,916.38
Insurance Payments 2@ $392.00 $784.00
Tags 2 years @ $600.00/yr. $1,200.00
Filing Fee $500.00
Notary Fee $15.00
Service Contract $2,295.00 TOTAL WITHOUT ATTORNEY’S FEES & ENJOYMENT $48,817.38
Attorney’s Fees
Loss or [sic] Recreation & Enjoyment

As indicated, the itemization included blanks for attorney’s fees and loss of recreation and enjoyment. No additional figures were included in the letter, and it was signed by Cutrer’s counsel but not by Cutrer.

13Weeks later, a representative of Open Range faxed Cutrer’s counsel a copy of the same letter, but added handwritten information. Specifically, the figure “5,000.00” was written in the blank for attorney’s fees, a zero was entered in the blank for loss of recreation and enjoyment, and a new total of “53,817.39” was inserted at the bottom of the list. The following language was also added: “We accept this offer on the terms stated in your letter.” That sentence was followed by the signature of Pamela A. Graber, identified as “VP of Operations” for Open Range.

Based upon these written communications, Open Range filed a Motion to Enforce Settlement Agreement and asserted that the case settled. Cutrer opposed the motion arguing there was no final settlement because the parties made no provision for payment of an outstanding mortgage on the RV and because Cutrer did not agree to the figures inserted for attorney’s fees and damages. The trial court found a valid compromise and signed a judgment dismissing the suit with prejudice. Cutrer asserts on appeal that the trial court erred because no final settlement agreement was reached. He contends that the reply from Open Range was a counteroffer that was never accepted and any settlement involving a rescission of the sale would require payment of the outstanding mortgage on the RV, which Open Range refused to do.

LAW AND ANALYSIS

A settlement or compromise is a contract whereby the parties, through concessions made by one or more of them, settle a dispute or an uncertainty concerning an obligation or other legal relationship. La. Civ.Code art. 3071; Sims v. USAgencies Cas. Ins. Co., 10-1120 (La.App. 1 Cir. 12/22/10), 68 So.3d 570, 574, writ denied, 11-1927 (La. 11/14/11), 75 So.3d 943. Like any contract, a compromise agreement is formed by the consent of the parties through offer and acceptance. La. Civ.Code art. 1927. An acceptance not in accordance with the |4terms of the offer is deemed to be a counteroffer. La. Civ.Code art. 1943. A compromise is valid only if there is a meeting of the minds between the parties as to exactly what they intended when the compromise was reached. Sceroler v. Rancher, 99-2859 (La.App. 1 Cir. 2/15/02), 808 So.2d 803, 809, writ denied, 02-0811 (La.5/24/02), 816 So.2d 849.

The letter from Cutrer’s counsel is tendered as a “settlement proposal” and lists nine items of damages. The first seven items include corresponding figures that Cutrer would accept to settle each of those claims, with an identified total of “$48,-817.39” for all seven. There are blanks included for the last two items: attorney’s fees and loss of recreation and enjoyment. Construing the letter in its entirety, we believe it set forth an offer to settle the claims for the first seven items for the stated amounts and was an invitation to negotiate the claims for attorney’s fees and loss of recreation. The defendant’s representative responded to the letter by writing that “[w]e accept this offer on the terms stated in your letter,” but she then inserted additional terms by entering the figure “5,000.00” in the blank for attorney’s fees, a zero in the blank for the loss of recreation and enjoyment claim, and, most significantly, a new total of “53,-817.39.” The purported acceptance of the offer was thus qualified by the condition that Cutrer accept $5,000.00 for the attorney’s fee claim, nothing for the loss of recreation claim, and a new total of $53,816.39. These additional terms constituted a new offer to settle all nine items of damages that required Cutrer’s acceptance to establish the parties’ intent to enter a compromise agreement. The letter does not reflect any acceptance of the new offer. Thus, the evidence fails to establish Cut-rer’s consent to the purported settlement agreement. See, Town & County Prop., Inc. v. Soileau, 97-0917 (La.App. 1 Cir. 5/15/98), 712 So.2d 1003, 1006 (party’s consent to contract was 15vitiated by insertion of information in a blank in the agreement after the party had signed it).

The absence of Cutrer’s signature to the letter is also fatal to the assertion that a binding settlement agreement was entered. A compromise shall be made in writing or recited in open court, in which case the recitation shall be susceptive of being transcribed from the record of the proceedings. La. Civ.Code art. 3072. The purpose of the writing requirement is to serve as proof of the agreement and the acquiescence therein. Bourgeois v. Franklin, 389 So.2d 358, 361 (La.1980); Sims, 68 So.3d at 574. An agent must be given express authority to enter into a compromise for the principal. La. Civ. Code art, 2997(5).

Here, the only evidence of a compromise agreement is the letter signed by Graber and Cutrer’s counsel. The letter was not signed by Cutrer. In Sims, this court held that a letter signed by a party’s attorney, but not by the party, was not sufficient to create a binding compromise agreement unless the party expressly authorized his attorney to convey or accept the offer, and explained:

It is of no moment that a party’s attorney finds a negotiated settlement satisfactory; a settlement must be in writing. Nor is the requirement of a writing to effect a compromise satisfied by the signature of a party’s attorney alone (unless such authorization is express under LSA-C.C. art. 2997). The general authority granted to an attorney in an attorney/client contract of employment to settle the client’s case constitutes only authority to negotiate a settlement. In the instant case, the correspondence that Mr. Sims relies on to establish a compromise in this case did not contain his signature, and no evidence was submitted to establish that Mr. Sims expressly authorized his attorney to settle his claims.

Sims, 68 So.3d at 575 (citations and footnotes omitted).

The party’s signature on the written agreement fulfills the purpose of the writing requirement by ensuring adequate proof of the agreement and the acquiescence therein by the parties. As the facts of this case demonstrate, the consent of the parties to the specific terms of a compromise agreement is not always readily apparent, and that consent is even less evident when the parties’ |6signatures do not appear on the agreement. No evidence was presented to the trial court that established Cutrer’s express authority to enter the proposed compromise.

We hold that the letter forwarded by Cutrer’s counsel and modified and returned by the Open Range employee does not support the trial court’s finding of a valid compromise agreement. For the foregoing reasons, we reverse the judgment of the trial court and remand for farther proceedings. Costs of this appeal are assessed to Open Range.

REVERSED AND REMANDED.

THERIOT, J., Concurs with Reasons.

THERIOT, J.,

concurring with reasons.

hi agree with the majority that the evidence fails to establish Cutrer’s consent to the purported settlement agreement. However, I find the letter faxed by Cut-rer’s counsel is not an offer, but an invitation to negotiate. For a proposal to qualify as an offer, it must reflect the intent of the author to give to the other party the right of concluding the contract by assent. If there is no such intent, the proposal cannot be considered an offer, but only an invitation to negotiate or an expression of willingness to receive offers from others. Delta Testing and Inspection, Inc. v. Ernest N. Morial New Orleans Exhibition Hall Authority, 96-2340 (La.App. 4 Cir. 8/20/97), 699 So.2d 122, 124, writ denied, 97-2350 (La.12/12/97), 704 So.2d 1194 (citing Eames v. James, 452 So.2d 384 (La.App. 3 Cir.1984)). One who proposes the contract is bound if the offer is made in terms which evidence a design to give the other party the right of concluding by assent, and the other party timely assents. Knecht v. Board of Trustees for State Colleges and Universities and Northwestern State University, 591 So.2d 690, 694 (La.1991).

Cutrer’s letter left two material elements blank: attorney fees and loss of recreation and enjoyment. It is impossible for Open Range to conclude the contract by mere assent. Open Range was presented with an invitation to place an amount in the blank spaces and forward an offer to Cutrer, at which point Cutrer may have either accepted or rejected the offer. The record is clear that Cutrer did not accept Open Range’s offer. Thus, the evidence fails to establish Cutrer’s consent to the purported settlement agreement.

      . The itemized amounts actually total $48,920.38.

      . For a case addressing an invitation to negotiate, see, Knipmeyer v. Diocese of Alexandria, 492 So.2d 550, 552-554 (La.App. 3 Cir. 1986), writ denied, 496 So.2d 347 (La. 1986).


author: PETTIGREW, J. KUHN, J.,

text:
    ORLEANS PARISH SCHOOL BOARD v. Paul G. PASTOREE, in his capacity as State Superintendent of Education, The Louisiana Department of Education and The Louisiana State Board of Elementary and Secondary Education.
    No. 2012 CA 1174.
    Court of Appeal of Louisiana, First Circuit.
    Aug. 14, 2013.

      Brent B. Barriere, New Orleans, LA, for Plaintiff-Appellant, Orleans Parish School Board.
    R. Christopher Fruge, Baton Rouge, LA, for Defendants-Appellees, Honorable John White, Superintendent of Education, and The Louisiana Department of Education.
    Angelique Duhon Freel, Baton Rouge, LA, for Defendant-Appellee Louisiana State Board of Elementary and Secondary Education.
    Before KUHN, PETTIGREW, and McDonald, jj.
   PETTIGREW, J.

|?In this case, plaintiff appeals from the trial court’s judgment denying its requests for injunctive relief and declaratory judgment and dismissing its case with prejudice. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

On April 19, 2011, plaintiff, Orleans Parish School Board (“OPSB”), filed a petition seeking injunctive and declaratory relief. The Louisiana Department of Education (“DOE”), the Louisiana State Board of Elementary and Secondary Education (“BESE”), and John White, in his capacity as Superintendent of Education, were all named as defendants. On December 20, 2011, and March 13, 2012, OPSB filed two supplemental and amending petitions intended to “correct and/or clarify factual allegations in the original petition.” According to the petitions, OPSB alleged that the defendants were exceeding their constitutional authority by retaining control over non-failing OPSB schools that had been transferred from the jurisdiction of the OPSB to the BESE administered Recovery School District (the “RSD”). OPSB sought a judgment declaring that the attempts by the defendants to retain control over non-failing OPSB schools or otherwise interfere with the business affairs of the OPSB exceeded the constitutional and statutory limits of their authority. More specifically, OPSB requested that the trial court issue a permanent injunction restraining the defendants from acting in violation of their constitutional authority.

The matter proceeded to trial on March 16, 2012, at which time the trial court heard arguments and brief testimony. Later that same day, the trial court issued written reasons for judgment, denying the OPSB’s requests for injunctive relief and declaratory judgment. A judgment in accordance with the trial court’s written reasons for judgment |awas signed on April 28, 2012. It is from this judgment that OPSB has appealed, assigning the following specifications of error for our review:

1. The trial court erred in refusing to declare that Louisiana Administrative Code Bulletin 111, Chapter 24, Sections 2403(A) — (C), (E) and (F) are unconstitutional.
2. The trial court erred in refusing to provide permanent injunctive relief requiring the unconditional return of schools to OPSB which are no longer deemed to be failing.

STANDARD OF REVIEW

An injunction shall be issued in cases where irreparable injury, loss, or damage may otherwise result to the applicant, or in other cases specifically provided by law. La.Code Civ. P. art. 3601(A). The issuance of a permanent injunction takes place only after a trial on the merits, in which the burden of proof must be founded on a preponderance of the evidence. State Machinery & Equipment Sales, Inc. v. Iberville Parish Council, 2005-2240, p. 4 (La.App. 1 Cir. 12/28/06), 952 So.2d 77, 80-81. The standard of review for the issuance of a permanent injunction is the manifest error standard. City of Baton Rouge/ Parish of East Baton Rouge v, 200 Government Street, LEG, 2008-0510, p. 5 (La.App. 1 Cir. 9/23/08), 995 So.2d 32, 36, writ denied, 2008-2554 (La.1/9/09), 998 So.2d 726.

A declaratory judgment is one that simply establishes the rights of the parties or expresses the opinion of the court on a question of law, without ordering anything to be done, and its distinctive characteristic is that the declaration stands by itself with no executory process following as a matter of course, so that it is distinguished from a direct action in that it does not seek execution or performance from the defendant or the opposing litigants. Billingsley v. City of Baton Rouge, 95-2162, p. 4 (La.App. 1 Cir. 4/30/96), 673 So.2d 300, 302, writ denied, 96-1490 (La.9/20/96), 679 So.2d 439. Appellate courts review a district court’s decision to grant or deny a declaratory judgment using the abuse of discretion standard. Mai v. Floyd, 2005-2301, p. 4 (La.App. 1 Cir. 12/6/06), 951 So.2d 244, 245, writ denied, 2007-0581 (La.5/4/07), 956 So.2d 619.

^DISCUSSION

Article VIII, § 3 of the Louisiana Constitution of 1974 provides for the creation of BESE and sets forth the limits of BESE’s power. In 2003, Louisiana voters approved an amendment to La. Const. Art. VIII, § 3. The amendment, effective November 6, 2003, authorized BESE to take control of “a public elementary or secondary school which has been determined to be failing.” As amended, Article VIII, § 3(A) authorizes BESE to supervise, manage, and operate failing schools or to provide for their supervision, management, and operation as follows:

(A) Creation; Functions. The State Board of Elementary and Secondary Education is created as a body corporate. It shall supervise and control the public elementary and secondary schools and special schools under its jurisdiction and shall have budgetary responsibility for all funds appropriated or allocated by the state for those schools, all as provided by law. The board shall have other powers, duties, and responsibilities as provided by this constitution or by law, but shall have no control over the business affairs of a city, parish, or other local public school board or the selection or removal of its officers and employees; however, the hoard shall have the power to supervise, manage, and operate or provide for the supervision, management, and operation of a public elementary or secondary school which has been determined to be failing, including the power to receive, control, and expend state funds appropriated and allocated pursuant to Section 13(B) of this Article, any local contribution required by Section 13 of this Article, and any other local revenue available to a school board with responsibility for a school determined to be failing in amounts that are calculated based on the number of students in attendance in such a school, all in the manner provided by and in accordance with law. [Emphasis added.]

In connection with this amendment, the legislature passed several statutes that went into effect upon approval of the amendment. With La. R.S. 17:10.5, the legislature defined a “failed school” as one that had been designated as academically unacceptable under a uniform statewide program of school accountability established by rules adopted by BESE. When a school had been designated as academically unacceptable for four consecutive years, the school would be removed from the jurisdiction of the local school board and transferred to the jurisdiction of the RSD, upon the approval of BESE. La. R.S 17:10.5(A)(1). Such a failed school would then be | ^reorganized, as necessary, and operated by the RSD in such a manner as to bring the school to an acceptable level of performance. La R.S. 17:10.5(B).

With La. R.S. 17:1990(A)(1), the legislature created the RSD, effective November 6, 2003, and authorized it to “provide an appropriate education for children attending any public elementary or secondary school” that had been transferred to the jurisdiction of the RSD pursuant to La. R.S. 17:10.5. To that end, the RSD was granted the authority to “provide for the supervision, management, and operation of a school placed under its jurisdiction ... with all the same power and authority as the prior system from which it was transferred[.]” La. R.S. 17:1990(B)(2)(a).

In 2004, the legislature enacted La. R.S. 17:10.6, which restricted the authority of the local school board to act once the school system was determined to be “academically in crisis.” Pursuant to the statute, “academically in crisis” was defined as “any local system in which more than thirty schools are academically unacceptable or more than fifty percent of its students attend schools that are academically unacceptable.” La. R.S. 17:10.6(B)(1). When such conditions existed, the statute restricted the local school board’s authority such that it could act only in certain specified situations.

In 2005, the legislature passed Act 35. Act 35 made no changes to La. R.S. 17:10.5 or La. ,R.S. 17:10.6. However, it did enact an entirely new statute, La. R.S. 17:10.7, which, at that time, provided, in pertinent part, as follows:

A. (1) Each elementary or secondary school that participates in a Spring cycle of student testing and has a baseline school performance score below the state average ... that is a school in or granted a charter by a city, parish, or other local public school system that has been declared to be academically in crisis pursuant to R.S. 17:10.6, and that has at least one school eligible to transfer to the Recovery School District pursuant to R.S. 17:10.5, shall be designated a failing school and shall be transferred to the jurisdiction of the Recovery School District established in R.S. 17:1990. The Recovery School District ... shall provide all educational services required of any city, parish, or other local public school system in order to meet the educational needs of all students residing in the jurisdiction of the transferring local school system who were attending a transferred school or who would have been eligible to attend such transferred school because of the residential location of the student or as the result of any other option or program available to the student.
|fiC. (1) The recovery district shall retain jurisdiction over any school transferred to it for a period of not less than five school years not including the school year in which the transfer occurred if the transfer occurred during a school year.
(2)(a) No later than nine months prior to the expiration of the five-year period, the recovery district shall make a report to the state board.
(b) The report shall include at a minimum each of the following elements:
(i) The status of each school transferred, the nature of its faculty and administration, the demographics and size of its student body, its organizational and management structure, whether there has been improvement in student academic performance and, if so, how much and, if not, why not.
(ii) A recommendation as to whether the school should be:
(aa) Continued in the recovery district pursuant to its reported operational status.
(bb) Continued in the recovery district with a change in its operational status and the nature of the recommended change.
(cc) Closed and the reasons therefor.
(dd) Returned to the administration and management of the transferring system with proposed stipulations and conditions for the return.
(3) No later than six months prior to the expiration of the five-year period, the state board shall take action on the recommendations of the recovery district. Any action that results in an affirmative agreement to maintain the school in the recovery district shall retain the school in the recovery district for an additional five-year period, unless a lesser time is adopted by the state board. The report and the action required in this Paragraph shall occur no later than six months prior to each period of continuation.

Thus, under La. R.S. 17:10.5, which was in effect prior to Act 35, a school could be transferred to the jurisdiction of the RSD if certain conditions existed, subject to the approval of BESE. Under La. R.S. 17:10.7, as enacted pursuant to Act 35, a school could be transferred immediately and automatically to the jurisdiction of the RSD for a minimum of five school years. La. R.S. 17:10.7(0(1). Near the end of the five-year period, the RSD was required to make a recommendation to BESE as to whether each school within its jurisdiction should be retained within the RSD, closed, or returned to |7the administration and management of the transferring system with proposed stipulations and conditions for its return. La. R.S. 17:10.7(0(2), (3).

Pursuant to the authority conferred upon it by the Louisiana Constitution and by La. R.S. 17:10.5 and La. R.S. 17:10.7, BESE, promulgated regulations to assist in determining the fate of OPSB schools that had been transferred to the RSD’s jurisdiction. Former Superintendent Pastorek devised a framework to govern the statutorily mandated determination by BESE' of whether a school was eligible for transfer out of the RSD’s jurisdiction.

LAs set forth in LAC 28:LXXXIII.2403 (“Bulletin 111”), often referred to as the Pastorek Plan, the guidelines for determining the eligibility for transfer out of the RSD’s jurisdiction are, in pertinent part, as follows:

A. This policy provides the mechanism for transferring of eligible schools from the jurisdiction of the recover/ school district (RSD) while ensuring that the school’s autonomy and flexibility is retained to allow continued substantial improvement and high standards of accountability. An eligible school may elect to transfer from the RSD and return to its former local educational authority (LEA) or an alternative governing authority (AGA), if authorized by law. If a school chooses not to transfer to its LEA, it will automatically remain within, the RSD for an additional five year period.
B. No school shall be eligible for transfer from the jurisdiction of the recovery school district until the conclusion of the 2011-2012 school year. No school shall be transferred from the RSD without the approval of the Louisiana Board of Elementary and Secondary School (BESE).
C. A non-failing school is eligible for transfer from the jurisdiction of the recovery school district provided it meets all of the following.
1. The school has been under the jurisdiction of the recovery school district for a minimum of five years as either a direct-run RSD school or a Type-5 charter school.
2. The school meets the performance requirement as defined by having established two consecutive years of a school performance score (SPS) that is at least 80 or if the academically unacceptable school (AUS) bar is raised above 75, then at least 5 points above the AUS bar as established by BESE pursuant to the statewide school and district accountability system.
3. The school elects to transfer from the RSD and has notified BESE no later than December 1 of the year preceding the effective date of the proposed transfer.
a. Type 5 Charter School. The charter school’s governing authority, in accordance with its by-laws, shall notify BESE in writing of its desire to transfer from the jurisdiction of the RSD.
b. Direct-Run RSD School. The superintendent of the RSD, in consultation with the parents of students attending the school, and the school’s staff, shall make a recommendation to BESE seeking transfer from the jurisdiction of the RSD.
4. No later than January 1 of the school year preceding the effective date of the proposed transfer, BESE shall make a determination whether or not to transfer the school and the mechanism of such transfer.
5. The former local educational authority or the alternative governing authority (collectively referred to as recipient authority) has agreed to accept jurisdiction of the transferring school.
|96. The following parties must agree to transfer no later than April 1 of the school year preceding the effective date of such transfer:
a. the governing authority of a charter school, if a charter school; or
b. the superintendent of the RSD, if a direct-run RSD school; and
c. BESE; and
d. the recipient authority.
E. Type 5 Charter Schools. The transfer of a Type 5 charter school from the RSD shall become effective on July 1 of the year following BESE’s approval of such transfer.
1. The charter school must negotiate a new charter agreement with the recipient authority to become either a Type 3 or Type 4 charter school. A copy of the signed negotiated charter agreement must be provided to BESE no later than April 1 preceding the effective date of the proposed transfer. The new charter agreement must:
a. be effective on the date of transfer (July 1);
b. be consistent with all state and federal laws governing charter school authorization; and
c. contain academic performance standards and other requirements for extension and renewal that are equal to or greater than Type 5 charter school performance standards as enumerated in BESE Bulletin 126.
2. Transfer to a Type 3 Charter School. If the charter school elects to become a Type 3 charter school, the non-profit charter organization shall apply to the recipient authority to operate the school. The charter contract agreement must conform to all the laws and requirements governing Type 3 charter schools.
3. Transfer to a Type 4 Charter School. If the charter school elects to become a Type 4 charter school, the recipient authority must apply to BESE to operate the charter school, with the approval from the charter operator. The charter contract agreement must conform to all the laws and requirements governing Type 4 charter schools.
F. Direct-Run RSD Schools. A direct-run RSD school may transfer directly to the recipient authority as a direct-run school, or may transfer as a Type 3 or Type 4 charter school.
1. Transfer to a Charter School. A non-failing direct-run RSD school may elect to transfer to the recipient authority as either a Type 3 or a Type 4 charter school. Such transfer to the recipient authority shall be made in the same manner as described in Paragraph E.l above.
2. Transfer as a Direct-Run School. A direct-run RSD school may elect to become a direct-run school under the recipient authority, in which case the recipient authority shall enter into a memorandum of | ^understanding (MOU) with BESE. The MOU shall be effective for a maximum of three years, and shall provide, at a minimum, the following.
a. Non-Failing Direct-Run RSD Schools
i. Preserve the Existing School Autonomy, The transferring school shall retain its existing level of autonomy over such elements, including but not limited to, its educational program and curricula, its staffing, and its budget decisions.
ii. Continued Performance. The recipient authority shall be required to maintain school performance equal to or greater than that achieved by the RSD. Should the transferring school, become AUS during the term of the MOU, the school shall be immediately returned to the jurisdiction of the RSD.
iii. School Budget. The transferring school shall maintain its school-level budget at a level at least equal to that school-level budget it maintained while in the RSD, adjusted for current enrollment, the MFP and/or federal, local and/or other sources of revenue.
iv. Recourse. Violation of the MOU may result in the school being returned to the RSD.
b. Failing Direct>-Run RSD Schools
i. Turnaround Plan. The MOU shall identify key benchmarks and milestones demonstrating the turnaround strategy being executed and successfully improving student academic outcomes.

On appeal, OPSB argues that LAC 28:LXXXIII.2403(A)-(C) and (E)-(F) violate the limitation on defendants’ jurisdiction as set forth in La. Const. Art. VIII, § 3. OPSB acknowledges that La. R.S. 17:10.5 provides a mechanism by which schools can be transferred to the RSD and that La. R.S. 17:10.7 “triggered the transfer of 107 ‘failing schools from the OPSB to the RSD during the 2005-2006 school year” and detailed “the mechanism for the return of these schools to OPSB.” OPSB maintains that “La. R.S. 17:10.7 does not, however, provide for the automatic retention of non-failing schools under RSD jurisdiction. Nor does it allow BESE to impose restrictions not contemplated by the Constitution on non-failing schools that opt to leave RSD control.” OPSB alleges that Bulletin 111 does both and, thus, is unconstitutional as it contradicts La. R.S. 17:10.7.

In Louisiana, it is a well-settled principle that statutes are presumed to be constitutional unless fundamental rights, privileges, and immunities are involved. World Trade Center Taxing Dist. v. All Taxpayers, Property Owners, 2005-0374, p. 11 (La.6/29/05), 908 So.2d 623, 632. Moreover, unlike the federal constitution, the | ¶ provisions of our state constitution are not grants of power, but rather are limitations on the otherwise plenary power of the legislature. The legislature may enact any statute that the state constitution does not prohibit. Id.

Accordingly, a party seeking a declaration of unconstitutionality must point to a particular constitutional provision that prohibits the legislature from enacting the statute at issue. It must be shown clearly and convincingly that it was the intent of the constitutional provision to deny the legislature the power to enact the statute in question. When considering a constitutional challenge, the question before the court is whether the constitution limits the legislature, either expressly or impliedly, from enacting that statute in question. World Trade Center Taxing Dist., 2005-0374 at 12, 908 So.2d at 632.

In denying OPSB’s request for permanent injunction and dismissing its request for declaratory judgment, the trial court noted as follows in written reasons .for judgment:

The plaintiffs cite Article VII Section 3 of the Louisiana Constitution which provides for the creation of BESE and sets forth the limits of BESE’s power. OPSB specifically points to the provision stating that BESE was prohibited from exerting any control over or interfering with “the business affairs of a city, parish, or other local public school board ...” Further stating that a 2003 amendment to Louisiana Constitution Article VIII Section 3 gave BESE “the power to supervise, manage and operate or provide for the supervision, management and operation of a public elementary and secondary school which has been deemed to be failing ...”
Louisiana Revised Statute 17:1990 created the RSD and [Louisiana] Revised Statute 17:10.5 provided the mechanism by which schools could be transferred to the RSD. After Hurricane Katrina, Act Number 35 of the First Extraordinary Session of 2005 (Act 35) created Louisiana Revised Statute 17:10.7 which/the plaintiffs aver, allowed the RSD to trigger the wholesale transfer of 107 failing schools from the OPSB to the RSD during the 2005-2006 school year.
Under the aforementioned statutes, the transferred OPSB schools are to remain under the RSD’s control for an initial 5 year Transfer Term. The schools transferred to the RSD in 2004 and 2005 will end their initial Transfer Term at the conclusion of the 2011-2012 school year and will be subject to one of the following: closure, return to the OPSB or retention by the RSD.
The plaintiffs cite Louisiana Revised Statute 17:10.5 and Louisiana Revised Statute 17:10.7 which they claim dictates that nine months prior to the conclusion of the Transfer Term, the RSD shall submit a report to BESE on each school under its control and issue a recommendation |12regarding the school’s future following the Transfer Term. OPSB further maintains that, according to the statutes, six months prior to the conclusion of the Transfer Term/ BESE shall act upon the RSD’s recommendations and determine which schools will be returned to local control, which schools will be retained by the RSD and which schools shall be closed.
OPSB avers that to assist BESE in determining the fate of the OPSB schools now under RSD control, Mr. Paul Pastorek devised a framework to govern the statutorily mandated determination for BESE (the “Pastorek Plan”) which was adopted in April 2011 and later codified as Administrative Code Bulletin 111, Chapter 24, (Bulletin 111). Under Bulletin 111, according, to the plaintiff, no school is eligible to return to OPSB until the conclusion of the 2011-2012 school year. Also in accordance with Bulletin 111, three types of transferred schools are eligible for returning to the OPSB including, the subject of the instant suit, non-failing OPSB schools. Those schools include: non-failing direct-run RSD schools and non-failing Type 5 Charter Schools.
Non-failing RSD direct-run schools are to be automatically (as stated by the plaintiff) retained under the jurisdiction of the RSD. Only in the event that a non-failing school affirmatively [exercises] an escape option, will these schools be permitted to return to local control through the OPSB. If a school does not affirmatively choose to return to the OPSB control at the end of the Transfer Period, the school will automatically remain with the RSD for an additional five year period.
A non-failing RSD direct-run school may choose to return to the OPSB if the school has been under the jurisdiction of the RSD for a minimum of five years and has had a school performance score (SPS) of at least 80 for two consecutive years. If a non-failing RSD direct-run school affirmatively chooses to return to OPSB control, the school must notify BESE no later than December 1 of the year preceding the effective date of the proposed transfer. BESE is then .charged with determining, by January 1 of the school year preceding the effective date of the transfer, whether or not the school should be'transferred to the OPSB. The superintendent of the RSD, BESE and the OPSB all must agree on the transfer. Additionally, a Memorandum of Understanding (MoU), in accordance with Bulletin 111, must also be executed between BESE and the OPSB which shall include numerous terms and conditions which OPSB avers would prevent the OPSB from having full managerial control over an MoU governed school,
Under Bulletin 111, a non-failing Type 5 Charter School may choose to return to OPSB. However, should a non-failing charter school choose to exit the jurisdiction, of the RSD, it will be permitted to do so after complying with additional requirements including negotiating a new charter agreement with the OPSB.
OPSB asserts here today that by attempting to retain jurisdiction over non-failing OPSB schools, Bulletin 111, Chapter 24, Sections, 2430(A), (B) and (C) are in violation of Article VIII Section 3 of the Louisiana Constitution, which limits BESE’s direct managerial control to failing schools only. The plaintiff further maintains that by imposing additional restrictions and conditions upon the transfer of non-failing schools back to the OPSB, Bulletin 111, Chapter 24, Sections (E) and (F) violate Article VII Section 3 of the Louisiana Constitution by impermissibly | ^interfering with the business affairs of a local school board. Additionally, the OPSB maintains that Bulletin 111 violates Act 35 of the First Extraordinary Session of 2005.
The defendants argue, and this Court finds, that once a school has been determined to be failing and is transferred to the RSD it is no longer a part of the OPSB. The schools must remain in the RSD for a period of five years. The defendants further maintain and the Court hereby finds that Article VIII, Section 3 of the Louisiana Constitution must be examined in conjunction with Louisiana Revised Statutes 17:10.5 and 17:10.7 because they clarify Article VIII, Section 3.
In Eiche v. Louisiana Board of Elementary and Secondary Education, et al., 582 So.2d 186 (La.1991) citing State ex rel. Guste v. Board of Commissioners, 456 So.2d 605 (La.1984) and Barnett v. Develie [Develle], 289 So.2d 129 (La.1974), the Louisiana Supreme Court stated, “... we must consider the nature of BESE’s role within the overall constitutional framework of education. We begin from the proposition that constitutional provisions, no less than other laws, should be construed so as to give effect to the purpose indicated by a fair interpretation of the language used, and in the event of a conflict or inconsistency, provisions should be construed, if possible, to allow each provision to stand and be given effect.”
In that same case, the Louisiana Supreme Court further stated, “Article VIII Section 1 of the Louisiana Constitution provides that ‘the legislature shall provide for the education of the people of the state and shall establish and maintain a public educational system.’ Article VIII, Section 3(A) creates BESE. The second sentence of this section provides BESE, ‘shall supervise and control the public elementary and secondary schools ... as provided by law.’ In Aguillard v. Treen, 440 So.2d 704, 708 (La.1983), and Board of Elementary and Secondary Education v. Nix, 347 So.2d 147 (La.1977), we explained the phrase ‘as provided by law’ indicated BESE’s powers of supervision and control were not unfettered nor self-executing, but arose from, and were subject to, laws passed by the legislature. Article VIII Section 10 recognizes the existence of parish and city school boards ‘subject to control and supervision by the State Board of Elementary and Secondary Education and the power of the legislature to enact laws affecting them.’ Taken as a whole, these sections make the local school boards subject to BESE’s powers to exercise supervision and control over the public schools, which in turn are pursuant to laws passed by the legislature.”
Under the relevant aforementioned statutes, BESE is afforded the task and charged with the responsibility of taking the reports from the RSD and determining in accordance with the statutes whether the school(s) shall be transferred back to the OPSB or remain in the RSD.
There is no provision that has been shown to this Court today, which prohibits the legislature from passing [La. R.S.] 17:10.5 and 17:10.7 regarding the return of RSD schools nor prohibits BESE from promulgating the regulations in Bulletin 111. The Court reiterates, the legislature has the power to pass any legislation not prohibited by the 1 ^constitution. The Court hereby finds that Louisiana Constitution Article VIII, Section B pursuant to the aforementioned amendment, has given BESE the authority over the RSD and the legislature has set forth the criteria via statutes pursuant to which a failing school be transferred to the jurisdiction of the [RSD] and the actions that BESE and the RSD shall take after a school has completed a five year Transfer Term. Bulletin 111, of which Section 2403(A)-(C) and (E)-(F) are at issue here today, is the manner in which BESE promulgated a system by which an eligible school could return back to the jurisdiction of OPSB (or any other school board from which they came). The Court finds that BESE enacted the Pastorek Plan as a means by which to accomplish the task they were charged with — facilitating the transfer of schools from the RSD back to the jurisdiction from which they came.
The OPSB has not shown this court by dear and convincing evidence that Louisiana Administrative Code, Title 28.LXXXIII. Bulletin 111, Section 2403(A)-(C) and (E)-(F) are unconstitutional and the plaintiffs request for permanent injunction is hereby denied. Accordingly, the plaintiffs petition for declaratory judgment is hereby dismissed. All costs of this proceeding shall be paid by the OPSB.

The record before us reasonably supports a finding that OPSB failed in its burden of proving that Bulletin 111 was unconstitutional. It is well settled that laws on the same subject matter must be interpreted in reference to each other. La. Civ.Code art. 13. Thus, La. Const. Art. VIII, § 3 must be read along with La. R.S. 17:10.5, La. R.S. 17:10.7, and Bulletin 111. There is nothing in the language of Article VIII, § 3 that “clearly and convincingly” shows that it was the intent of the constitutional provision to deny the legislature the power to enact the pertinent provisions of La. RS. 17:10.5 and La. R.S. 17:10.7 and for BESE, in turn, to enact the regulations found in Bulletin 111 governing the return of RSD schools to the jurisdiction of local school boards such as OPSB. The pertinent statutory language of La. R.S. 17:10.5 and La. R.S. 17:10.7 is virtually identical. Once a school has been determined to be “failing,” it is transferred to the RSD and must remain there for a period of at least five years. La. R.S. 17:10.5(0(1) and La. R.S. 17:10.7(0(1). Pursuant to these same statutory provisions, near the end of the five-year period, the RSD is required to make recommendation to BESE as to whether each school within its jurisdiction should be retained within the RSD, retained within the RSD with a change in its operational status, closed, or returned to the administration and management of the transferring system with proposed | ^stipulations and conditions for its return. La. R.S. 17:10.5(0(2) and La. R.S. 17:10.7(0(2).

Contrary to OPSB’s arguments on appeal, these statutes, along with the guidelines set forth in Bulletin 111, allow the defendants to not only retain jurisdiction over schools that may no longer be considered “failing,” but also to impose conditions upon schools that may be returned to the jurisdiction of the' transferring system. As 'correctly noted by deféndants in briéf to this court:

La. R.S. 17:10.5 and La. R.S. 17:10.7 show the legislative intent to allow for formerly failing schools to remain within the RSD beyond the time that their school performance scores rise above the failing level. These statutes also clearly confer upon BESE the discretion to determine when, and under what conditions and stipulations, an RSD school is to be returned to the jurisdiction of a local school board. It is BESE that is tasked with the responsibility of reviewing the RSD’s recommendation and making a decision regarding the status of each RSD school after the initial five years under the jurisdiction of the RSD.

Following a thorough review of the record before us and the applicable law, we agree with the trial court’s judgment. The conclusion by the trial court that OPSB failed In its burden of proving that Bulletin 111 was unconstitutional is reasonably supported by the record. Based on the foregoing, we find no error or abuse of discretion in the trial court’s judgment, OPSB’s assignments of error are without merit. Thus, we affirm the trial court’s judgment denying OPSB’s request for in-junctive relief, denying OPSB’s request for a declaration that Bulletin 111 is unconstitutional, and dismissing, with prejudice, OPSB’s case.

CONCLUSION

For the above and foregoing reasons, the trial court’s April 23, 2012 judgment is affirmed. All costs associated with this appeal in the amount of $1,337.50 are assessed against Orleans Parish School Board.

AFFIRMED.

KUHN, J.,

dissents and assigns reasons.

The respective powers and duties of BESE and the school boards are set forth by La. Const, art. VIII, § 3(A), which grants BESE the authority to supervise, manage, and operate school that have “been determined to be failing.” The language of the provision is expressly limited to failing schools; thus, Article VIII does not grant BESE the authority to operate non-failing schools indefinitely. Therefore, the majority’s holding permitting non-failing schools to be retained under BESE’s jurisdiction ad infinitum is clearly problematic. Further, the rationale for the majority’s holding is flawed in that it utilized statutes as a means of interpreting a constitutional provision. Statutes are enacted by the Legislature whereas constitutional provisions emanate from the electorate adopting them. Thus, the intent of the Legislature in enacting statutes is neither synonymous with, nor helpful to, an interpretation of the intent of the people in adopting a specific constitutional provision. See In re Office of Chief Justice, Louisiana Supreme Court, 12-1342 (La.10/16/12), 101 So.3d 9, 18 (it is the intent of the electorate that is relevant in interpreting a constitutional provision). Finally, to the extent that the specific language of Article VIII can be so broadly construed as to allow the interpretation reached by the majority, I believe the provision must be considered ambiguous.

For these outlined reasons, I dissent from the result reached by the majority.

      . We note that at the time OPSB filed its original petition, Paul G. Pastorek was the acting Superintendent of Education and named as a defendant in this matter. However, in a first supplemental and amending petition filed on December 20, 2011, Mr. White was named as the current Superintendent of Education and the proper party defendant.

      . At the start of the trial, the parties stipulated that it was, in fact, a request for a permanent injunction as counsel for OPSB indicated, "We have dismissed our request for preliminary injunction.”

      . The statute further provided for the transfer to the RSD of failed schools for which the local school board had failed to present or implement an acceptable reconstitution plan.

      . In 2008, the legislature amended La. R.S. 17:10.5 so that its provisions regarding the return of RSD schools to local school boards more closely tracked the language found in La. R.S. 17:10.7. See La. R.S. 17:10.5(0, as amended by 2008 La. Acts, No, 489, § 1, effective August 15, 2008. Louisiana Revised Statutes 17:10.7 was also amended by 2008 La. Acts, No. 737, § 1. Pertinent to our discussion here are the changes made to La. R.S. 17:10.7(0(1) as follows:
      C. (1) The recovery district shall retain jurisdiction over any school transferred to it for a period of not less than five school years not including the school year in which the transfer occurred if the transfer occurred during a school year. At the end of the initial transfer period, the school may be returned to the system from which it was transferred unless the school is continued in the recovery district in accordance with the provisions of Paragraph (3) of this Subsection.
      (2)(a) No later than nine months prior to the expiration of the initial or subsequent transfer period, the recovery district shall make a report to the state board.
      (b) The report shall include at a minimum each of the following elements:
      (i) The status of each school transferred, the nature of its faculty and administration, the demographics and size of its student body, its organizational and management structure, whether there has been improvement in student academic performance and, if so, how much and, if not, why not. (ii) A recommendation as to whether the school should be:
      (aa) Continued in the recovery district pursuant to its reported operational status.
      (bb) Continued in the recovery district with a change in its operational status and the nature of the recommended change.
      (cc) Closed and the reasons therefor.
      (dd) Returned to the administration and management of the transferring system with proposed stipulations and conditions for the return.
      (3) No later than six months prior to the expiration of the initial or subsequent transfer period, the state board shall take action on the recommendations of the recovery district. Additionally, no later than six months prior to the expiration of the initial or subsequent transfer period, the state board shall conduct a public hearing within the jurisdiction of the city, parish, or other local public school board from which the school was transferred relative to whether the school should be continued in the recovery district or returned to the system. The state board by a majority vote of its membership may continue any school in the recovery district for additional periods of five years. [Emphasis denotes changes from original.]