author: DANIEL L. DYSART, Judge.

text:
    NEW ORLEANS FIRE FIGHTERS PENSION AND RELIEF FUND, et al. v. The CITY OF NEW ORLEANS, et al.
    No. 2013-CA-0873.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 18, 2013.

      Louis L. Robein, Jr., Christina L. Carroll, Robein Urann Spencer Picard & Can-gemi, APLC, Metairie, LA, for Plaintiffs/Appellees.
    Debra J. Fischman, James Michael Garner, Sher Garner Cahill Richter Klein & Hilbert, L.L.C., Cashauna M. Hill, Assistant City Attorney, Kimlin S. Lee, Deputy City Attorney, Churita H. Hansell, Acting Chief Deputy City Attorney, Sharonda R. Williams, City Attorney, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge TERRI F. LOVE, Judge DANIEL L. DYSART, Judge SANDRA CABRINA JENKINS).
   DANIEL L. DYSART, Judge.

_|jThe City of New Orleans (the “City”) and its co-defendants seek review of the district court’s grant of a writ of mandamus directing the City to “immediately budget, appropriate for and pay to the New Orleans Fire Fighters [sic] Pension & Relief Fund ... the sum of $17,524,329 as the Actuarially Required Contribution to the ‘New System’ administered by the Fund.”

The City raises several issues on appeal, the most significant of which is whether mandamus is the proper procedure for the enforcement of a statutory provision regarding the funding of the New Orleans Firefighters Pension and Relief Fund (the “Fund”). The City contends that the statute upon which appellees rely, and upon which the trial court’s judgment is based (La. R.S. 11:3384), is [ 2vague and ambiguous. It further maintains that, because of the statute’s ambiguity, it cannot be used in the context of a mandamus proceeding, as that applies strictly to “ministerial” acts which are, by their very nature, definitive and not subject to interpretation. The City also contends that the statute is discretionary and creates no affirmative obligation on its part to contribute to the Fund.

We have reviewed all of the issues raised by the City in this appeal. For the

Amount allegedly owed

$13,913,495

$23,782,819 (or $1,981,901.58 monthly)

2012 $29,424,359

The Petition thus maintained that, by December 31, 2012, the cumulative projected amount of the underfunding would be reasons set forth below, we affirm the trial court’s judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On July 19, 2012, the Trustees of the Fund filed a Petition for Writ of Mandamus (“Petition”), requesting that the court order defendants to pay sums allegedly owed to the Fund by the City pursuant to La. R.S. 11:3384. More particularly, the Petition alleged that an actuary, retained by the Fund as required by La. R.S. 11:3363(D), determined certain amounts to be paid into the fund for the years 2010 forward. The City contributed those funds through July, 2010. However, according to the Petition, beginning in August, 2010, the City unilaterally reduced the amount it contributed to the Fund and has continually failed to make contributions based on the figures determined by the actuary.

The Petition alleged that the amounts owed by the City and the City’s contributions have been as follows:

Amount contributed
$10,635,430
$750,000 per month (resulting in a shortage of $12,546,131)
$11,900,000

$34,163,319. The Petition sought the immediate appropriation and payment of $17,524,359 by the City to the Fund.

In response to the Petition, defendants filed an Answer, along with Exceptions of No Cause of Action, No Right of Action and Unauthorized Use of Summary Proceedings. The Exceptions were denied after a hearing held on December 19, 2012. Defendants applied for a supervisory writ with this Court, which was denied on December 28, 2012. The Louisiana Supreme Court also denied defendants’ writ application. New Orleans Fire Fighters Pension and Relief Fund v. City of New Orleans, 13-0009 (La.1/4/13), 106 So.3d 540.

In the interim, on September 11, 2012, defendants filed a Reconventional Demand against the Trustees, alleging that they mismanaged the “investments of the assets of the Fund.” The Reconventional Demand sought injunctive relief, precluding the Trustees from using certain financial consultants and damages in the form of “any amounts that [the City] has been or will be called to pay into the Fund due to any deficit pursuant to La. R.S. 11:3361 and 11:3375.” Defendants also sought the right to take over management of the Fund.

14Trial on the mandamus was held on January 7-8, 2013. During the course of the trial, counsel for defendants attempted to cross-examine a witness regarding investment choices made by the Trustees. The trial court sustained the Trustees’ objection to this line of questioning and refused to allow any evidence of the Trustees’ fiscal mismanagement as alleged in the City’s reconventional demand. A supervisory writ to this Court on this issue was denied on January 8, 2013.

On March 28, 2013, the District Court issued its Judgment, ordering that a writ of mandamus issue directing the City to immediately budget, appropriate and to pay to the Fund the amount of $17,524,329 together with judicial interest from date of demand. A Motion for New Trial filed by the City was denied and this timely sus-pensive appeal followed.

DISCUSSION

The City’s required contributions to the Fund

The Firefighters’ Pension and Relief Fund is made up of two distinct retirement plans: the “old system,” covering firefighters employed prior to January 1, 1968 and the “new system,” covering all firefighters employed after December 31, 1967, as well as those employed before 1968 who have elected to come under the new system. The distinction between the two systems was detailed by this Court in Rapp v. City of New Orleans, 98-1714, pp. 31-32 (La.App. 4 Cir. 12/29/99), 750 So.2d 1130, 1149:

... New Orleans firemen contributed retirement income into one of two retirement plans. Employees, who were hired prior to January 1, 1968, invested into a benefits package, which is commonly referred to as the “old” Isplan. The old plan was not actuarially funded in advance. In other words, the calculations of firemen’s benefits in this plan did not consider the extent of retirement payments to an individual employee based on life-expectancy figures. Also, the contributions made by the current employees under the old plan are not invested to cover future benefits. Therefore, the old plan was referred to as the pay-as-you-go plan. Additionally, the employer did not make any contributions in the old plan ...
Conversely, employees who were hired after January 1, 1968, invested in an actuarially determined defined benefit plan, which is known as the “new” plan. Under the new plan, both the employee and the employer contribute to the plan, and interest accumulates on these contributions from various outside sources. In the new plan, benefits paid to the employee are funded on an overall basis, meaning the benefits due to each individual employee was funded by the pool, not by funds accumulated, set aside, segregated or accounted for separately for that individual.

There is no question that the City is to contribute to the Fund; however, the parties dispute what funding is statutorily required of the City. The City argues that the only mandatory funding requirement for the entire Fund, old and new alike, is found in La. R.S. 11:3361, which provides, in pertinent part, that:

[T]he city shall pay into the fund annually one percent of the revenues derived from all licenses issued by the city, except the drivers and chauffeurs licenses, and an annual appropriation in the budget of the city of a sum equal to not less than five percent of the money annually appropriated by the city for the operation and maintenance of the fire department of the city.

The record reflects that the City has consistently complied with the requirements of this statute and it is not at issue herein. It is the City’s obligation under La. R.S. 11:3384(F) which is in dispute. That statute provides:

|fiF. On account of each member who comes under the provisions of this Section applying to persons employed after December 31, 1967, either because of date of employment or due to election as provided herein, there shall be paid annually by the city and credited to the pension accumulation account a certain percentage of the earnable compensation of each member, to be known as the “normal contributions”, and an additional percentage of this earnable compensation to be known as the “accrued liability contribution”. The percentage rates of such contribution shall be fixed on the basis of the liabilities of the retirement system as shown by actuarial valuation. (Emphasis added).

Thus, La. R.S. 11:3384(F) requires the City to contribute two separate and distinct amounts: the “normal contribution” and the “accrued liability contribution,” both of which are to be determined by “actuarial valuation.” This actuarial valuation is to be computed by an actuary retained by the Board; La. R.S. 11:3363(D) mandates that the Board of Trustees “shall employ an actuary who shall annually certify to the board the amount of contributions required by the city and other sources to maintain the system on an actuarial basis.” (Emphasis added). Construed together, the statutes require the Board to retain an actuary to determine the amount the City shall contribute to the Fund. The statute does not indicate, as the City suggests, that these contributions are discretionary. The statute’s use of the term “shall,” rather than “may,” leaves no doubt that the | legislature intended to require that the City make these contributions. If, as the City argues, the only mandated funding statute is La. R.S. 11:3361, then the legislature’s enactment of La. R.S. 11:3384 was meaningless and the statute has no effect.

We find, as did the trial court, that the mandates provided in 11:3385(F), as well as 11:3363(D), were specific enactments of the legislature to provide an actuarial funding mechanism for the new system. This is in keeping with this Court’s recognition that “the new system is legally required to have advanced funding” so that “the annual contributions made by the city are sufficient not only to pay anticipated benefits for that year, but also to build up the fund.” Nicolay v. The City of New Orleans, 546 So.2d 508, 511 (La.App. 4 Cir.1989). We can find no other reasonable alternative explanation for the existence of both statutes.

We recognize that the statutes at issue require the City to contribute to the Fund an amount “to maintain the system on an actuarial basis,” but do not prescribe the precise manner or specific formula by which the actuary is to determine the appropriate amount to be paid each year by the City. However, until 2010, the City annually paid the full amount an actuary determined to be owed under this La. R.S. 11:3384(F); clearly the statute has been interpreted and implemented in the same manner for many years without objection as to how the accrued liability contribution was determined. Moreover, although actuarial science is necessarily imprecise and requires that various assumptions be made, this does not render the statutory scheme impermissibly vague in application.

| ^According to the Fund’s actuary since 2000, Michael Conefry, who was accepted without objection as an expert in the field of actuarial science, La. R.S. 11:3384 is vague only in that the terms “normal contribution” and “accrued liability contribution” are not “typical terms” used by actuaries. Rather, as Mr. Conefry explained, and as is contained in his September 10, 2012 report, these terms have traditionally been interpreted by Louisiana actuaries as meaning the “Normal Cost” and “Unfunded Accrued Actuarial Liability Amortization Amount” under the “Entry Age Normal Cost Method,” which is “an actuarial cost method widely used in the funding of defined benefit pension plans in both the public and private sectors.”

Mr. Conefry further explained that the statute requires an actuarial valuation, which is:

... a process whereby the actuary collects census data and financial information concerning the defined benefit plan and calculates the projected actuarial present value of the benefits to be delivered under the plan, and uses certain mathematical processes called actuarial cost methods, or at least one actuarial cost method, to produce the annual funding contributions. It’s a self-correcting annual process where the census and financial data is updated each year with changes of the usual dates of birth, hiring and salary information, retirees, turnover and so forth.
... the basic fundamental goal is to take the amount to be funded for the future, the total actuarial present value of benefits expected to be delivered, less the current value — actuarial value of the assets, and spread that over the future on a reasonable and consistent basis so that the |3value of the benefits is paid for.
And the ideal goal and funding for a defined benefit plan is to fund for the liabilities or the value of benefits as they are accruing and that’s what the actual cost method is designed to do.

Necessarily, the valuation determines on a yearly basis the amount of the contribution required of the City, which, according to Mr. Conefry, takes into account “the known sources of such contributions, typically member contributions and sometimes other sources such as dedicated taxes and the like.” The balance comes from the employer contributions; that is the amount “not provided by all of the other sources” which “must be delivered by the employer.”

Mr. Conefry further explained that “the value of the member contributions are determined in this case, by subtracting the total actuarial present value from the amount necessary, the total present value of all benefits. And then the net amount to be funded is what the employer and employer-related sources are required to pay.”

This accepted practice of actuarial methodology had been used for the Fund since 1987 and Mr. Conefry continued to use this method after becoming the Fund’s actuary in early 2000. Every year until 2009, the City paid the sum (or the approximate sum) which Mr. Conefry determined to be the actuarially required contribution. Beginning in 2010, however, the City failed to make the full contribution as determined by Mr. Conefry and the City has failed to fully contribute since that time. Although the City maintains that it has complete and total discretion to contribute the actu-arially required contribution, it offered nothing at trial to indicate what it believes is the appropriate amount for its actuarially required contribution. Its expert actuary, Adam Reese, while critical of certain aspects of Mr. Conefry’s evaluation and assumptions, failed to offer his 110own recommendation for the actuarially required contribution of the City. Rather, Mr. Reese was only retained to assist the City “in understanding the plaintiffs’ case and how the actuarial elements of that fit into it.” Mr. Reese did not testify as to what, in his opinion, the City’s payments should have been for the period in question. And, the City offered no other witness on this issue.

The only testimony at trial concerning the amount owed by the City as its actuar-ially required contribution to the Fund came from Mr. Conefry. His testimony in this regard was consistent with the allegations of the Petition. There was no other evidence presented as to the amount owed by the City. Accordingly, we affirm the trial court’s award of $17,524,329.00 as the City’s actuarially required contribution at this time.

We note that the statutes do not contain any specific provision by which the City may challenge the amount determined by the Fund’s actuary to be the City’s accrued liability contribution. However, “[i]t is not our function as a court of appeal to legislate.” Simmons v. Louisiana Dept. of Public Safety and Corrections, 2007-0572 (La.App. 4 Cir. 12/12/07), 975 So.2d 1, 3. See also, Hamilton v. Royal International Petroleum Corp., 05-846, p. 10 (La.2/22/06), 934 So.2d 25, 33 (“[c]ourts are not free to rewrite laws to effect a purpose that is not otherwise expressed.”). Rather, “[t]he function of statutory interpretation and the construction to be given to legislative acts rests with the judicial branch of the government.” Rebel Distributors Corp., Inc. v. LUBA Workers’ Comp., 13-0749, p. 14 (La.10/15/13) _ So.3d _, 2013 WL 5788791, citing Livingston Parish Council on Aging v. Graves, 12-0232, pp. 3-4 (La.12/4/12), 105 So.3d 683, 685. To the extent that any deficiencies in the statutory scheme exist, those are matters for the legislative branch to address.

| nAvailability of mandamus procedure

Having determined that the City must contribute to the Fund pursuant to La. R.S. 11:3384(F), we turn to the City’s argument that mandamus is an improper procedure for this matter, which the City maintains should have been tried by ordinary process.

La. C.C.P. article 3863 provides that a writ of mandamus may be issued “to a public officer to compel the performance of a ministerial duty required by law, or to a former officer or his heirs to compel the delivery of the papers and effects of the office to his successor.” Under La. C.C.P. art. 3862, a mandamus “may be issued in all cases where the law provides no relief by ordinary means or where the delay involved in obtaining ordinary relief may cause injustice.”

This Court has repeatedly determined that the proper procedure for the enforcement of obligations set forth in the pension statute is mandamus, as the City’s funding requirement is a ministerial function. The Nicolay, supra, court specifically noted:

This court has already determined that the proper procedure for enforcement of the obligations set forth in the pension statute is mandamus because payment by the City requires the City as a ministerial function to make an appropriation. Board of Trustees of Firemen’s Pension & Relief Fund v. City of New Orleans, 217 So.2d 766 (La.App. 4th Cir.1969). Mandamus lies to compel the performance of prescribed duties that are purely ministerial and in which no element of discretion is left to the public officers, but there must be a clear and specific legal duty which ought to and can be performed. Felix v. St. Paul Fire and Marine Ins. Co., 477 So.2d 676 (La.1985).

d., 546 So.2d at 512. This Court then held that, as “the trial court’s judgment require[d] the City to perform a purely ministerial function in making the payments to the Fund, it should have included a writ of mandamus.” Id.

The Board of Trustees case, cited by the Nicolay court, involved a petition for mandamus seeking to compel the City to appropriate a sum for cost of living increases in conformity with La. R.S. 33:2117 (redes-ignated as La. R.S. 11:3382), which authorized the board of trustees of the Fund to “use interest earnings on investments of the system in excess of normal requirements as determined by the actuary to provide a cost of living increase in benefits for members who have retired, in an amount not to exceed two percent of the original benefit for each year of retirement.” The statute is similar to La. R.S. 11:3384(F) in that it required an actuarial determination of the amount to be funded. The Board of Trustees court found that mandamus was the appropriate procedure, noting:

The statute which has formed the subject matter of this tedious litigation is a mandatory law, and the defendants, the City of New Orleans, are required as a ministerial function to make the appropriation, and it is for this reason that mandamus is the proper procedure for the enforcement of this obligation.

Id., 217 So.2d at 769.

Accordingly, in this matter, we find that mandamus was a proper procedural vehicle to direct the payment by the City of its mandatory contribution to the Fund. We agree with the trial court’s finding that the City’s funding obligations are ministerial in nature and that any delay in that funding process “may” cause an injustice, thereby warranting the issuance of the writ of mandamus. We therefore | ^affirm the trial court’s issuance of a mandamus directing the City to make the actuarially required contribution to the Fund.

We now turn to the City’s remaining arguments: (1) that the trial court erred in denying its Peremptory Exception of No Right of Action insofar as the relief requested violates the separation of powers doctrine; (2) that the mandamus improperly destabilizes the City’s 2012 balanced budget and (3) that the trial court erred in refusing to allow evidence of the Trastees’ financial mismanagement of the Fund and breaches of their fiduciary duties.

Separation of powers

Relying heavily on Hoag v. State, 04-0857 (La.12/1/04), 889 So.2d 1019, the City argues that it “cannot be judicially ordered to expend funds outside of the normal budgetary process” and that the trial court’s issuance of a mandamus violates the separation of powers doctrine. This doctrine prohibits any one of the three branches of government from exercising power belonging to another branch. State v. Lanclos, 07-0082, pp. 10-11 (La.4/8/08), 980 So.2d 643, 651. In the instant matter, we find that the trial court’s judgment issuing a mandamus is not an improper exercise by the courts of a legislative function, as the City contends. In so finding, we distinguish this ease from Hoag and its progeny.

In Hoag, the plaintiffs, a group of coroners, sought past and future compensation pursuant to a statute enacted in 1984 which provided for coroners to receive an additional $548 per month from the State as supplemental pay. The [ 14State did not pay this additional compensation for ten years. In 2000, the plaintiffs filed suit and were granted a summary judgment awarding each coroner a certain amount owed under the statute. Efforts were initiated in the legislature to appropriate funds to partially pay the judgment; however, the funds were never appropriated. The coroners then filed another suit in 2003, seeking a writ of mandamus directing the legislature to appropriate the funds to pay the judgment. Thereafter, the trial court issued a mandamus, directing all legislators to appropriate the funds to pay the judgment.

In reversing the trial court, the Supreme Court, citing La. R.S. 13:5109(B), recognized the settled jurisprudence that “judgment creditors cannot mandamus political subdivisions to appropriate funds for payment of a judgment rendered against the respective political subdivisions.” Id., 04-0857, p. 5, 889 So.2d at 1023. It then noted, as have we, that a writ of mandamus may only be issued where the actions sought to be performed “are purely ministerial in nature.” Id., 04-0857, p. 6, 889 So.2d at 1023. The Hoag court defined a ministerial duty as a “‘simple, definite duty, arising under conditions admitted or proved to exist, and imposed by law.’ ” Id., 04-0857, p. 7, 889 So.2d at 1024. Finding that “[t]he very act of appropriating funds is, by its nature, discretionary and specifically granted to the legislature by the constitution,” the court held that “[although ... plaintiffs are entitled to payment of the judgment, a writ of mandamus directing the legislature 115to appropriate funds is an impermissible usurpation of legislative power by the judiciary.” Id., 04-0857, pp. 7-8, 889 So.2d at 1024-25.

It is clear that the Hoag decision was based largely on the constitutional grant to the legislature, under La. Const. art. III, § 16, of the “sole authority ... to control the funds of this state and to appropriate funds within its control.” Id., 04-0857, p. 8, 889 So.2d at 1024. It is this constitutional provision which supports the court’s finding that the act of appropriating funds is discretionary, which power is expressly reserved to the legislature.

In the instant matter, we have already determined that the City’s obligation to contribute to the Fund is a ministerial duty. As such, the trial court’s mandamus is not an improper usurpation of a legislative function and does not violate the separation of powers doctrine. Our affirmation of the trial court’s ruling is compatible with the Hoag decision. It is likewise consistent with our jurisprudence allowing the issuance of a mandamus against a political subdivision compelling it to comply with statutory duties that are ministerial in nature. See, e.g., Nicolay, supra. In so finding, we are guided by the Louisiana Supreme Court case of Carriere v. St. Landry Parish Police Jury, 97-1914 (La.3/4/98), 707 So.2d 979.

Camere involved a suit by a St. Landry Parish coroner for a writ of mandamus, compelling the Parish Police Jury to provide office space and pay his salary, health insurance and retirement benefits, and to fund the budget for the office’s annual operating expenses. The trial court issued a mandamus ordering the Police Jury to pay the coroner’s salary and budget for operating expenses. The Third Circuit affirmed the trial court’s judgment only insofar as it ordered the Police Jury to pay the “necessary or unavoidable” operational expenses. Id., 97-1914, (La.3/4/98), 707 So.2d at 981. The judgment as to other sums awarded was reversed.

The Supreme Court granted writs to consider, among other issues, whether the payment of coroner salaries by the parish governing bodies is statutorily mandated obligation or one arising from constitutional provisions. The Carriere court did not expressly address the issue of the separation of powers between the judiciary and the legislature; however, the court observed that “[ojnce the legislature places the burden of paying salaries or other expenses of a state official on parish governing authorities, those bodies are generally obligated to pay these mandated expenses.” Id., 707 So.2d at 981 (citing Reed v. Washington Parish Police Jury, 518 So.2d 1044, 1049 (La.1988)). (Emphasis added). The court reasoned:

Prior to a 1991 constitutional amendment, it was not uncommon for the legislature to impose mandatory duties on parish governing bodies that required the appropriation of funds without providing a corresponding funding source. However, it is beyond our powers to act in a similar fashion and place responsibility 117for funding state officials on parishes unless there already exists a clear legislative mandate to do so.

Id., 707 So.2d at 981-82. (Emphasis added).

The Supreme Court later reiterated these principles in Perron v. Evangeline Parish Police Jury, 01-0603 (La.10/16/01), 798 So.2d 67, also a mandamus action by a parish coroner seeking to compel the parish police jury to fund his office. The trial court rendered judgment in favor of the coroner, including an award for attorney’s fees. The court of appeal reversed and the Supreme Court granted writs to consider whether attorney’s fees may be awarded in connection with the mandamus proceeding. The court, addressing the separation of powers issue, stated:

Under the particular facts of this case, we do not find that an order directing the police jury to appropriate funds for the coroner’s attorney fee expenses violates the doctrine of separation of powers. In concluding that it was prohibited from awarding attorney fee expenses to plaintiff, the court of appeal cited Gongre v. Mayor and Bd. of Aldermen of Town of Montgomery, 98-677 (La.App. 3d Cir.10/28/98), 721 So.2d 968, writ denied, 98-2954 (La.1/29/99), 736 So.2d 834, and Landry v. City of Erath, 628 So.2d 1178 (La.App. 3d Cir.1993), writ denied, 94-0275 (La.3/25/94), 635 So.2d 235, each of these cases finding a violation of the separation of powers doctrine when a court orders a governing body to appropriate money when there is no statutory duty to do so. In Carriere, 707 So.2d at 982, this court did recognize the separation of powers principle, which limits a court’s power to place the responsibility of funding state officials on parishes unless a clear legislative mandate exists compelling such funding. While cognizant of this principle, we nonetheless conclude that the legislature has determined that attorney fee expenses incurred by the coroner’s office, so long as they are “necessary or unavoidable expenses ... incident to the operation and functioning of the coroner’s office,” | isare payable by the parish police jury. La.Rev.Stat. 33:1556(B)(1). In finding that the legislature has mandated the parish to pay these expenses, we are simply interpreting and enforcing this statute, not legislating a judicial solution. Thus, we discern no violation of the doctrine of separation of powers.

Id., 01-0603, pp. 9-10, 798 So.2d at 73.

In Parish of St. Charles v. R.H. Creager, Inc., 10-180 (La.App. 5 Cir. 12/14/10), 55 So.3d 884, writ denied, 11-0118 (La.4/1/11), 60 So.3d 1250, after their property was expropriated by the Parish of St. Charles, the plaintiffs contested the Parish’s valuation of the property and obtained a judgment against the Parish. When the Parish failed to pay the judgment, the plaintiffs sought and obtained writ of mandamus compelling the Parish authorities to “cause payment of the amount awarded in the final, definitive judgment.” Id., 10-180, p. 4, 55 So.2d at 884. While mandamus was noted to be specifically authorized by La. R.S. 38:390(A) as a procedure by which to collect the amount awarded in excess of that deposited by an expropriating authority, the Fifth Circuit also considered the Parish’s argument that “the judiciary is without authority to issue a writ of mandamus in any matter to enforce a money judgment ... unless the money for payment of the judgment has been specifically allocated.” Id., 10-180, p. 11, 55 So.2d at 881.

Rejecting that argument, the Fifth Circuit stated:

We recognize that the Louisiana constitution establishes a separation of powers among the three branches of government. ... However, a mandamus will lie against the State when the duty to be compelled is purely ministerial and not discretionary. We find the wording of the expropriation laws and the constitution set forth by the legislature make payment of fair and just compensation mandatory and not discretionary. Accordingly, we find the judiciary has the constitutional authority to issue a mandamus in this matter if warranted.

Id., 10-180, p. 13, 55 So.2d at 892.

With this background, we conclude, as did the Perron court, that “a clear legislative mandate exists” which requires the City to pay into the Fund the “accrued liability contribution” under La. R.S. 11:3384(F). While we recognize that our constitution provides, under Article VI, § 14(A)(1) that “[n]o law or state executive order, rule, or regulation requiring increased expenditures for any purpose shall become effective within a political subdivision until approved by ordinance enacted, or resolution adopted, by the governing authority of the affected political subdivision ...,” it specifically exempts “[a] law providing for civil service, minimum wages, hours, working conditions, and pension and retirement benefits, or vacation or sick leave benefits for firemen and municipal policemen.” La. Const. art. VI, § 14(A)(1)(e). (Emphasis added).

Furthermore, by enacting La. R.S. 11:3361 and La. R.S. 11:3384(F), the legislature placed the responsibility on the City of paying into the Fund which we conclude is a “clear legislative mandate ... compelling such funding.” See: Perron, supra, 01-0603, pp. 9-10, 798 So.2d at 73. As did the Perron and Carriere courts, we find no violation of the separation of powers doctrine in compelling the City to contribute to the Fund by way of mandamus. We find that, because “the legislature has mandated the [City] to pay [into the Fund], we are simply interpreting and enforcing this statute, not legislating a judicial solution.” See: Perron, 01-0603, p. 10, 798 So.2d at 73. To hold otherwise would allow the City to altogether disregard its mandatory statutory funding obligations with the protection of the courts, under the guise that a court issued mandamus ordering such payment violates the separation of powers doctrine. Such a result would render meaningless both the statutory scheme for the Fund and the legislatively mandated mechanism for its funding.

Effect on the City’s 2012 budget

The City’s next argument is that the trial court’s judgment has the effect of retroactively destabilizing the City’s balanced budget for 2012. It maintains that the City’s Home Rule Charter, which requires that the City annually balance its budget, prohibits any amendment which “increasefs] the aggregate of authorized expenditures to an amount greater than the estimate of revenues for the year.” The City also contends that the Charter does not allow its finance department to “approve any expenditure under any portion of an annual operating budget ordinance until sufficient estimated revenues have been provided to finance the proposed expenditures.”

The City further argues that the trial court’s mandamus violates the Louisiana Local Government Budget Act (“LLGBA”), citing La. R.S. 39:1310(A), which states, in part, that “[i]n no event shall a budget amendment be adopted proposing expenditures which exceed the total of estimated funds available for the fiscal year.” Finally, the City argues that La. C.C. Pr. art. 3862 prohibits the issuance of mandamus against a state agency when “the expenditure of such funds would have the effect of creating a deficit in the funds of said agency....”

121 We recognize that the Louisiana Constitution grants municipalities the power to set up home rule charters, and permits a municipality’s home rule charter to “provide the structure and organization, powers, and functions of the government of the local governmental subdivision, which may include the exercise of any power and performance of any function necessary, requisite, or proper for the management of its affairs, not denied by general law or inconsistent with this constitution.” We also recognize that “[p]ursuant to Article VI of the Louisiana Constitution, a municipal authority governed by a home rule charter possesses powers, in affairs of local concern within its jurisdiction, that are as broad as those of the state, except when limited by the constitution, laws permitted by the constitution or its own home rule charter.” Fransen v. City of New Orleans, 08-0076, p. 10 (La.7/1/08), 988 So.2d 225, 234, citing La. Const. art. VI, §§ 4-5; Civil Serv. Comm’n of the City of New Orleans v. The City of New Orleans, 02-1812, p. 4 (La.9/9/03), 854 So.2d 322, 326.

We note, too, that La. R.S. 39:1310(A) does provide, as the City indicated, that a budget amendment is not to be adopted that proposes expenditures that exceed the total of estimated funds for a given year. However, the City seems to suggest that, because of this provision, it can never be ordered to pay any sums which have not been included in its budget for any given year. A full reading of La. R.S. 39:1310(A) reflects that amendments are permitted when “there has been a change in operations upon which the original adopted budget was developed.” Id. There is little jurisprudence addressing what is meant by a “change in operations.” The First Circuit, in Tardo v. Lafourche Parish Council, 476 So.2d 997, 1003 (La.App. 1 Cir.1985), declined to find a change in economic circumstances to be such a “change in operations,” instead suggesting “such things as curtailing, eliminating or adding a particular service for the people would meet the criteria, as well as adopting additional revenue producing measures to permit the enhancement of services for the people.” We, too, will not attempt to define what constitutes a “change in operations.” We simply find that amendments to the budget are permissible and neither the Home Rule Charter nor La. R.S. 39:1310(A) prohibit the trial court from issuing a mandamus compelling the City to comply with its statutory obligations under La. R.S. 11:3384(F). We likewise find the City’s reliance on La. C.C. Pr. art. 3862 to be misplaced.

We are guided, as was the trial court, by the case of Penny v. Bowden, 199 So.2d 345 (La.App. 3 Cir.1967), a case filed by retired policemen seeking to have a mandamus issued to the City of Alexandria to appropriate annually to their pension fund any deficit in that fund, as required by statute (then La. R.S. R.S. 33:2222). In rejecting the City’s argument that it had “no funds with which to comply with a judgment directing it to appropriate monies into the requirement fund,” the Court stated:

... [T]he duty to appropriate and pay any yearly deficit which occurs in the operation of the policemen’s retirement fund is a statutory duty imposed by the will of the Legislature on the municipality. Our system of local government contemplates that statutory charges imposed on a municipality by the Legislature take precedence over a more permissive use of municipal funds, and it is settled that the State has the power to require a municipality to set up and appropriate money to a pension system ... We are of the opinion, therefore, that though in the City Council’s view the Council might better serve the inhabitants of the city by allocating the proceeds from the ad valorem tax to other functions, the | gowill of the Legislature in this regard is supre [sic] and must be obeyed.

Id., 199 So.2d at 350-51.

We agree with the Penny court and find that, in this matter, the duty to pay into the Fund is statutorily imposed. As such, we find no merit in the City’s contention that the mandamus is unlawful insofar as it has the effect of “destabilizing” the “balanced budget.”

Evidence of the Trustees’ mismanagement of the Fund

The City’s final argument is that the trial court erred in excluding evidence of the Trustees’ mismanagement of the Fund and their breaches of their fiduciary duties at trial. It maintains that, because it was unable to develop its affirmative defenses, it was “unfairly prejudice[d]” at trial. We disagree and find no error in the trial court’s ruling as the evidence sought to be introduced by the City is not relevant to the issues in this matter. Relevant evidence is “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” La. C.E. art. 401.

The issues in this matter center on the City’s obligations under La. R.S. 11:3384(F). The statute clearly and simply provides that the City is to pay both the “normal contribution” and the “accrued liability contribution.” Nowhere in the statute, or any other statute, is there a mechanism for offsetting the amount actu-arially determined to be owed by he City. Likewise, the statute makes no reference to any considerations to be taken into account in determining what the City owes. As we noted previously, as a judiciary, our task is to interpret the law, as enacted by the legislature. See, e.g., Unwired Telecom Corp. v. Parish of Calcasieu, 03-0732 (La.1/19/05), 903 So.2d 392, 404. (“interpreting the law is the designated function of the judiciary, not the Legislature”). Conversely, it is strictly within the legislature’s province to write the laws. See, e.g., CLK Company, L.L.C. v. CXY Energy Inc., 98-0802 (La.App. 4 Cir. 9/16/98), 719 So.2d 1098, 1109. We cannot interpret the statutes to include a consideration of the manner in which the Fund has been handled as a factor in determining the amount the City owes, as doing so would effectively rewrite the laws.

Thus, we conclude that the alleged mismanagement of the Fund or breaches of the Trustees’ fiduciary duties are not relevant to the issue of the City’s mandatory contributions to the Fund. The trial court properly excluded this evidence.

CONCLUSION

For the reasons discussed herein, the trial court’s judgment is affirmed.

AFFIRMED.

      . Named as defendants are the City of New Orleans, Mayor Mitchell J. Landrieu, the City’s CFO, Norman Foster, and members of the City Council (Jacquelyn Brechtel Clark-son, Stacy Head, Susan G. Guidry, Diana Bajoie, Kristin Gisleson Palmer and Cynthia Hedge-Morrell). The defendants will collectively be referred to as "the City.” We note that the trial court's judgment does not include Diana Bajoie as a member of the City Council and adds Latoya Cantrell and James Gray as members of the Council, although no amending Petition was filed for the substitution of those parties.

      . That statute provides, in pertinent part, that the Board of Trustees for the Fund "shall employ an actuary who shall annually certify to the board the amount of contributions required from the city and other sources to maintain the system on an actuarial basis.” La. R.S. 11:3363(D).

      . This was the projected amount for the year 2012; the Petition was filed prior to the year’s end, in July, 2012.

      . The sum of $17,524,359 is the amount by which the Petition alleges the Fund was to be underfunded for the year ending in December, 2012. It is unclear why the Petition sought the immediate payment of only the amount allegedly owed in 2012 and not the amounts by which the Fund was also allegedly underfunded in 2011 or 2010.

      . Defendants alleged mismanagement in a number of ways, including: (1) relying on "ill-advised investment advice;” (2) authorizing speculative loans to private entities; (3) failing to properly investigate the credit worthiness of its borrowers "in whom they chose to invest the assets of the Fund;” (5) failing to "undertake proper due diligence in the investigating of the liquidity promised by the FIA Leveraged Fund;” and (6) overinvesting in real estate.

      . New Orleans Fire Fighters Pension and Relief Fund v. City of New Orleans, 13-C-0025, unpub. (La.App.4.Cir.1/8/13). The record before us is incomplete and does not contain a copy of the writ application; only a copy of the writ disposition is included.

      . The record before us reflects that a pre-trial conference was held on May 20, 2013, following which a Trial Order was issued setting a jury trial on defendants' Reconventional Demand, to begin on March 17, 2014.

      . Indeed, the City contributed $9 million to the Fund for the fiscal year 2012. This amount represents approximately 10% of the Fire Department budget, which for 2012 was $87.55 million. La. R.S. 11:3361 only requires that the City pay "not less than five percent.” We note that the City contributed ten percent, rather than five percent; however, the statute only prescribes the minimum contribution required by the City. It does not negate the City’s other statutory obligations.

      . This Court explained the function of the actuary in Palisi v. New Orleans Fire Department, 95-1455 (La.App. 4 Cir. 3/12/97), 690 So.2d 1018, 1041-1042:
      Where an actuarially determined defined benefit plan is involved, only overall funding proportions have any meaning. Such plans are funded on an overall basis, i.e., the pool as a whole is funded ... An actuary tries to project the needs of the group as a whole ... The projections are modified every time a new contribution amount is determined in order to take into account the amount by which actual plan experience varied from the previous projection. Some firemen may retire early, some late, some will be disabled, some will quit, some will be terminated and some new ones will be hired, and some years the plan investments will perform either better or worse than projected. All of these deviations affect pool funding. As even the most skilled actuary does not have a crystal ball such deviations from projections are absolutely certain to occur.

      . See: La. R.S. 11:3363(D).

      . Mr. Conefry described an actuary as "a mathematician who specializes in life insurance and related Helds, such as employee benefits and casualty insurance.” His specialties are “employee benefits in general, and defined benefit and defined contribution pension plans.”

      . According to Mr. Conefry, this method is "generally accepted both by actuaries and by regulators at the state and national levels in establishing regulations and guidelines for defined benefit pension plan funding.”

      . Because of our finding that mandamus was proper, the City's contention that the trial court erred in denying its Dilatory Exception of Improper Use of Summary Proceedings is moot. Similarly, we find no error in the trial court’s denial of the City’s Peremptory Exception of No Cause of Action. That exception questions whether the law extends a remedy to anyone under the factual allegations of the petition. Fink v. Bryant, 01-0987, p. 3 (La.11/28/01), 801 So.2d 346, 348. The City maintains that its exception should have been granted because the statutes "do not establish [the Fund’s] clear entitlement to relief” and "do not impose any obligations that may be enforced through a writ of mandamus.” Having determined that the statutes do clearly require the City to make the required contributions, the trial court properly denied the City’s exception.

      . The summary judgment was appealed and affirmed by the First Circuit. The Supreme Court denied writs.

      . A similar suit had been filed in 1996 by several coroners, which resulted in a judgment for which the legislature appropriated funds and made payment on the judgment.

      . La. R.S. 13:5109(B)(2) provides, in pertinent part, that “[a]ny judgment rendered in any suit filed against the state, a state agency, or a political subdivision, or any compromise reached in favor of the plaintiff or plaintiffs in any such suit shall be exigible, payable, and paid only out of funds appropriated for that purpose by the legislature, if the suit was filed against the state or a state agency, or out of funds appropriated for that purpose by the named political subdivision, if the suit was filed against a political subdivision."

      . La. Const. art. III, § 16 provides, in pertinent part:
      (A) Specific Appropriation for One Year. Except as otherwise provided by this constitution, no money shall be withdrawn from the state treasury except through specific appropriation, and no appropriation shall be made under the heading of contingencies or for longer than one year.
      (B) Origin in House of Representatives. All bills for raising revenue or appropriating money shall originate in the House of Representatives, but the Senate may propose or concur in amendments, as in other bills.
      (C) General Appropriation Bill; Limitations. The general appropriation bill shall be itemized and shall contain only appropriations for the ordinary operating expenses of government, public charities, pensions, and the public debt or interest thereon.
      (D) Specific Purpose and Amount. All other bills for appropriating money shall be for a specific purpose and amount.

      . The issue centered on whether La. R.S. 33:1556(B)(1) (amended and redesignated as La. R.S. 33:5707(B)(1)) which provides that the coroner shall receive “[a]ll necessary or unavoidable expenses," included an award for attorney’s fees expended in the mandamus action.

      . The full text of that article is as follows:
      (A)(1) No law or state executive order, rule, or regulation requiring increased expenditures for any purpose shall become effective within a political subdivision until approved by ordinance enacted, or resolution adopted, by the governing authority of the affected political subdivision or until, and only as long as, the legislature appropriates funds for the purpose to the affected political subdivision and only to the extent and amount that such funds are provided, or until a law provides for a local source of revenue within the political subdivision for the purpose and the affected political subdi- ■ vision is authorized by ordinance or resolution to levy and collect such revenue and only to the extent and amount of such revenue. This Paragraph shall not apply to a school board.

      . New Orleans Home Rule Charter Art. III, § 3-115(3).

      . New Orleans Home Rule Charter Art. III, § 3-116(2).

      . La. Const, art. VI § 5(A)

      . La. Const, art. VI, § 5(E)

      . The New Orleans Home Rule Charter authorizes amendments as well. Section 3-115(3) states that “[a]mendments to the annual operating budget ordinance shall be considered and approved by the Council under the same procedures prescribed for its original adoption....”

      . As previously noted, the City filed a writ of supervisory review with this Court after the trial court ruled the evidence inadmissible and the writ was denied.

      . Presumably, the Fund is evaluated by the actuary, whose calculations, as Mr. Conefry indicated, include the Fund’s overall performance.


source: Caselaw Access Project

author: PAUL A. BONIN, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Ryan C. MARCELIN.
    No. 2013-KA-0893.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 18, 2013.

      Leon A. Cannizzaro, Jr., District Attorney, J. Bryant Clark, Jr., Assistant District Attorney, Parish of Orleans, New Orleans, LA, for Appellant.

      Holli Herrle-Castillo, Louisiana Appellate Project, Marrero, LA, for Appellee.
    (Court composed of Judge PAUL A. BONIN, Judge DANIEL L. DYSART, Judge MADELEINE M. LANDRIEU).
   PAUL A. BONIN, Judge.

hThe district attorney appeals the trial judge’s granting of the motion to quash filed by the defendant, Ryan Marcelin. The district attorney charged Mr. Marce-lin with Jumping Bail, a violation of La. R.S. 14:110.1 A, which criminalizes the “intentional failure to appear at the date, time, and place as ordered by the court before which the defendant’s case is pending.” The ground specified in Mr. Marce-lin’s motion to quash was that his failure to appear was as a result of the district attorney’s failure to serve written notice of his hearing at the proper address listed on Mr. Marcelin’s bail bond. See La.C.Cr.P. art. 344 B; La.C.Cr.P. art. 322 A.

Our recent decision in State v. Franklin, 13-0488 (La.App. 4 Cir. 10/9/13), 126 So.3d 663, is dispositive of the issue presented. Upon our de novo review of the bill of information and the quashal, we find that the trial judge failed to limit his consideration of the motion to quash to appropriate questions of law; the trial judge impermis-sibly considered factual defenses going to the merits of the offense charged in his decision to quash the bill of information. Accordingly, |2we reverse the trial judge’s ruling and remand the matter for further proceedings. We explain our reasoning in greater detail below.

I

The record before us is limited to certain pre-trial documents and the transcript from the hearing on the motion to quash. According to Mr. Marcelin’s motion to quash, the district attorney filed a bill of information on November 22, 2005, charging him with one count of possession of cocaine, a felony and a violation of La. R.S. 40:967 C. Prior to that filing, Mr. Marcelin signed a bond document causing him to be released from incarceration while his prosecution was pending before the Criminal District Court for the Parish of Orleans in proceedings numbered 463-004. On this bond document, Mr. Marcelin listed 4155 Madea Road, Apartment 150, Beaumont, Texas as his address. .See La.C.Cr.P. art. 322 A. Mr. Marcelin then missed numerous court dates throughout 2006 and 2007. The notices regarding these hearings, however, were served on a different address than that listed on his bond: 2610 Washington Avenue, New Orleans, Louisiana 70113. See La.C.Cr.P. art. 344 B.

According to the bill of information in this case, Mr. Marcelin was charged on August 26, 2011 with committing the offense of “Jumping Bail” for intentionally failing to appear on August 1, 2011 before Section A of Criminal District Court for a hearing regarding his pending felony drug charge. The trial judge presiding over the underlying drug charge, however, subsequently granted a motion to quash that bill of information on September 2, 2011 based upon the prosecution’s violation of Mr. Marcelin’s statutory speedy trial rights. See La.C.Cr.P. art. 532(7); La.C.Cr.P. art 578 A(2).

|3In this case, Mr. Marcelin chose not to file a motion for a bill of particulars, requiring the district attorney to set forth “more specifically the nature and cause of the charge against the defendant.” La. C.Cr.P. art. 484. Mr. Marcelin instead filed a Motion to Quash Bill of Information in open court claiming that a “bill of particulars has shown a ground for quashing the indictment under [La.C.Cr.P. art.] 485.” La.C.Cr.P. art. 532(5); La.C.Cr.P. art. 536. Mr. Marcelin asserts that a motion for a bill of particulars was not necessary and that the trial court had the authority to consider the documents and evidence already contained in the court records pertaining to these alleged offenses when making its ruling.

The trial judge granted Mr. Marcelin’s motion to quash on September 9, 2011 after hearing the arguments of counsel and reviewing the documents already contained in the record regarding service of notice for the upcoming hearings. The district attorney timely moved for an appeal. See La.C.Cr.P. art. 912 B(l); La.C.Cr.P. art. 914 B(1).

II

In this Part, we turn our attention to the general precepts pertaining to the appellate review of a ruling granting a motion to quash.

A

A motion to quash is “a mechanism whereby pre-trial pleas are urged, i.e., pleas which do not go to the merits of the charge.” State v. Carter, 11-0859, p. 3 (La.App. 4 Cir. 3/21/12), 88 So.3d 1181, 1182 (citing State v. Byrd, 96-2302, p. 18 (La.3/13/98), 708 So.2d 401, 411; State v. Rembert, 312 So.2d 282, 284 (La.1975)). See also State v. Clark, 12-1296, p. 3 (La.5/7/13), 117 So.3d 1246, 1249. “All pleas or defenses raised before trial, other than mental incapacity to proceed, or pleas of ‘not guilty’ and of ‘not guilty and not guilty by reason of insanity,’ shall be urged by a motion to quash.” La.C.Cr.P. art. 531.

“All issues, whether of law or fact, that arise on a motion to quash shall be tried by the court without a jury.” La.C.Cr.P. art. 537. The scope of permissible consideration by the trial court on a motion to quash an indictment or bill of information is similar to an exception of no cause of action in a civil suit. See State v. Schmolke, 12-0406, pp. 2-3 (La.App. 4 Cir. 1/16/13), 108 So.3d 296, 298. See also State v. Gerstenberger, 260 La. 145, 255 So.2d 720, 723 (1971). Thus, “[a] judge’s consideration of a motion to quash is confined to questions of law and, as a general rule, does not extend to defenses based upon factual findings.” Schmolke, 12-0406 at p. 2, 108 So.3d at 298. This is because the question raised by a motion to quash is not of the factual guilt or innocence of the offense charged as that is an appropriate determination for the fact-finder at trial. See State v. Perez, 464 So.2d 737, 740 (La.1985). See also Byrd, 96-2302 at p. 18, 708 So.2d at 411; State v. Patterson, 301 So.2d 604, 604 (La.1974). Rather, the trial judge’s range of permissible actions is limited to those matters which do not go to the merits of the charge. See La.C.Cr.P. arts. 532-534. See also Rembert, 312 So.2d at 284.

While La.C.Cr.P. arts. 532 and 534 provide numerous grounds for motions to quash bills of information, their lists are merely illustrative and motions not based on the grounds therein should not be automatically denied. See State v. Tanner, 425 So.2d 760, 762 (La.1983); State v. Reaves, 376 So.2d 136, 137-138 (La.1979). In making the determination of whether a given issue is appropriate to raise in a motion to quash, a court should determine whether “it is a defense which, if successful, requires dismissal of the indictment [or bill of information] regardless of the merits of the charge ... and which by its nature must be available before trial.” Id. at 138. Should the given issue not fit this paradigm, the court need not consider the issue any further, and may simply deny the motion to quash the bill of information or indictment. It is important to note, however, that the prosecution’s ability to meet its factual burden of proof at trial is a factual matter going to the merits of the charge and is not a sufficient ground to quash a bill of information. See State v. Masino, 214 La. 744, 38 So.2d 622, 623 (1949); State v. Rivers, 05-1121, pp. 5-6 (La.App. 4 Cir. 10/11/06), 942 So.2d 1176, 1179.

When considering a motion to quash, “the court must accept as true the facts contained in the bill of information and the bills of particulars and decide whether or not a crime has been charged.” Schmolke, 12-0406 at p. 3, 108 So.3d at 298 (quoting State v. Lagarde, 95-1497, p. 2 (La.App. 4 Cir. 4/3/96), 672 So.2d 1102, 1103) (internal quotations omitted). Evidence may be adduced in a motion to quash and at the subsequent hearing on the matter. See Perez, 464 So.2d at 739. See also Byrd, 96-2302 at p. 18, 708 So.2d at 411. The sole purpose of this evidence, however, must not be to support a defense on the merits. Id., 96-2302 at pp. 18-19, 708 So.2d at 411. If the indictment, bill of information, and bill of particulars fail to inform the defendant adequately of the charges against him, the trial court may order the indictment or bill of information quashed. See State v. DeJesus, 94-0261, p. 4 (La.9/16/94), 642 So.2d 854, 855. See also State v. Dowl, 09-0989, p. 18 (La.App. 4 Cir. 5/12/10), 39 So.3d 754, 766. This scope of review is essential for a trial judge’s proper determination on a motion to quash under La.C.Cr.P. art 532(5), and emphasizes the important role that bills of particulars play in allowing judges to review whether the offense charged was committed by the defendant or whether there is another ground for quashing the bill of information. See La.C.Cr.P. art. 485.

B

In Franklin, we reversed a trial judge’s decision to grant a defendant’s motion to quash asserting a similar argument. See 13-0488 at p. 8, 126 So.3d at 668. In that case as here, the defendant did not ñle a motion for a bill of particulars, and instead filed a motion to quash contending that attached medical documents sufficed to show that his failure to appear at his hearing was not intentional. See id., 13-0488 at pp. 6-7, 126 So.3d at 667-668. We found that this evidence went to the merits of his defense that he lacked specific intent to commit bail jumping. Because such decisions are reserved to the fact-finder at trial, the defendant’s assertions were not sufficient grounds for the trial judge to quash the bill of information. See id., 13-0488 at p. 7, 126 So.3d at 668.

The decision by a trial judge to grant or deny this type of motion to quash is solely a question of law. See Byrd, 96-2302 at p. 18, 708 So.2d at 411. Thus, we review the trial judge’s ruling on this motion to quash under a de novo standard. See State v. Hamdan, 12-1986, p. 6 (La.3/19/13), 112 So.3d 812, 816. See also Schmolke, 12-0406 at p. 4, 108 So.3d at 299. Under this standard of review, we do not defer to any factual findings made by the trial judge as those findings of fact regarding the merits of the defense are unauthorized. See id.

Ill

As previously stated, Mr. Marce-lin did not fíle a motion for a bill of particulars under La.C.Cr.P. art. 484 prior to filing his Motion to Quash Bill of Information under La.C.Cr.P. arts. 532(5) and 485. Mr. Marcelin contends that his argument that the lack of notice in this case proves that his failure to appear was not intentional is proper for a motion to quash under La.C.Cr.P. arts. 532(5) and 485. Mr. Marcelin also asserts that a trial judge should not be required to consider a bill of particulars in making this decision, and that the bond document containing the address provided by the defendant, the court subpoenas containing the incorrect address, the court record showing the quashing of the bill of information from his underlying drug offense, and the bill of information for this case were evidentiarily sufficient.

First, Mr. Marcelin’s assertions go directly to the merits of the offense charged and as such exceed the permissible scope of a motion to quash. As previously stated, the crime of Jumping Bail requires the prosecution to prove that a defendant intentionally failed to appear at the date, time, and place as ordered by |sthe court before which the defendant’s ease is pending. See La. R.S. 14:110.1 A. Thus, the prosecution must prove that Mr. Marcelin had the specific intent to fail to appear at his hearing. “Specific criminal intent is that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.” La. R.S. 14:10(1). Notice of the hearing at which the defendant must appear pursuant to La.C.Cr.P. arts. 322 and 344 only creates a rebuttable presumption that the defendant received such notice. See La. R.S. 14:110.1 A. Whether Mr. Marcelin had notice of an upcoming hearing and acted with specific intent goes directly to the merits of this charge and is a question of fact to be determined by the fact-finder at trial.

Mr. Marcelin may have an excellent defense on the merits against this charge. Such considerations, however, do not support a ruling to quash a bill of information. By his rulings on a motion to quash, a trial judge may not encroach on the role of the fact-finder at trial. Our judicial system places the “control of every criminal prosecution instituted or pending in his district” in the district attorney, and allows for the district attorney to decide “whom, when, and how he shall prosecute.” La.C.Cr.P. art. 61. See also Perez, 464 So.2d at 744. Furthermore, we put great faith in our juries to determine the weight and credibility of evidence and to act as judge of the law and facts on the question of guilt and innocence. See La.C.Cr.P. art. 802. A trial judge is simply not authorized to decide a defendant’s guilt or innocence in pretrial summary proceedings.

19Second, Mr. Marcelin is incorrect in his assertion that a motion to quash under La.C.Cr.P. art. 532(5) and 485 does not require a prior motion for a bill of particulars. Both La.C.Cr.P. arts. 532(5) and 485 explicitly require that a “bill of particulars” show a ground for quashing this bill of information. Furthermore, the purpose of a bill of particulars is to require the district attorney to set “forth more specifically the nature and cause of the charge against the defendant.” La.C.Cr.P. art. 484. Bills of particulars also allow district attorneys to cure defects in their bills of information, indictments, or previous bills of particulars. See La.C.Cr.P. art. 485. It would be inappropriate to circumvent this clarifying procedural mechanism and subsequently quash a bill of information for its lack of clarity.

CONCLUSION

By its ruling sustaining Mr. Marcelin’s motion to quash, the trial judge impermis-sibly decided a factual defense on the merits to the offense charged and erroneously granted relief to Mr. Marcelin.

DECREE

We reverse the trial judge’s ruling sustaining the motion to quash. The matter is remanded to the district court for further proceedings.

REVERSED AND REMANDED.

      . A motion to quash "shall specify distinctly the grounds on which it is based. The court shall hear no objection based on grounds not stated in the motion.” La.C.Cr.P. art. 536.

      . By way of contrast, we apply an abuse of discretion standard in our review of certain other types of motions to quash under La. C.Cr.P. arts. 532 and 534. See, e.g., State v. Love, 00-3347, pp. 9-10 (La.5/23/03), 847 So.2d 1198, 1206 (Motion to quash based on Sixth Amendment speedy trial rights and the reinstitution of prosecution); State v. Tran, 12-1219, p. 2 (La.App. 4 Cir. 4/24/13), 115 So.3d 672, 673 n. 3(Motion to quash under La.C.Cr.P. art. 532(10)).


author: HANS J. LILJEBERG Judge.

text:
    Lonnie J. ROBINSON v. JEFFERSON PARISH DEPARTMENT OF PUBLIC WORKS-DRAINAGE.
    No. 13-CA-474.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 19, 2013.

      Lonnie J. Robinson, Marrero, Louisiana, Plaintiff/Appellant, in Proper Person.
    Andrew M. Maestri, Attorney at Law, Office of the Parish Attorney Louisiana, Counsel for Defendant/Appellee.
    Panel composed of Judges SUSAN M. CHEHARDY, STEPHEN J. WINDHORST, and HANS J. LILJEBERG.
   HANS J. LILJEBERG Judge.

12Appellant, Lonnie Robinson, appeals a judgment of the Personnel Board for the Parish of Jefferson that upheld the termination of his employment and dismissed his appeal. For the following reasons, we affirm.

Procedural History

Mr. Robinson was terminated from his employment with the Parish of Jefferson, effective January 18, 2013. On January 31, 2013, Mr. Robinson exercised his right to appeal the Parish of Jefferson’s decision to terminate his employment. A hearing examiner, Theodore Nass, was appointed and a hearing was held on April 2, 2013, wherein the hearing examiner affirmed the decision of the Parish of Jefferson and dismissed the appeal.

Mr. Robinson thereafter sought review of the hearing examiner’s decision. By order signed April 23, 2013, the Personnel Board affirmed the hearing examiner’s decision and dismissed the matter. Mr. Robinson filed a motion for appeal with this Court pursuant to Rule 30 of the Jefferson Parish Personnel Board Rules of Appeal Procedure. His appeal follows.

Factual History

Mr. Robinson was employed by the Jefferson Parish Department of Public Works-Drainage from April 17, 1989, through January 18, 2013, as a classified civil servant. Prior to his termination, Mr. Robinson was employed as a ^Superintendent II on the east bank of Jefferson Parish with duties and responsibilities including structural maintenance, investigation of complaints, supervising and managing personnel, equipment, and daily operations.

Mr. Robinson’s departmental discipline began after Mr. Robinson suffered a cerebral vascular accident (CVA) or stroke in October 2006 that resulted in right-sided weakness and loss of coordination. Mr. Robinson recovered and was released to return to work in March 2007. Upon his return to work, however, Mr. Robinson received numerous disciplinary reprimands after displaying insubordinate and disruptive behavior. Such displays included damage to parish and private property in excess of $2,500.00; discourteous interaction with persons outside as well as within the department; threatening a fellow employee that his “day was coming” and he “should be careful;” and emailing Parish President John Young about “Judgment Day.” Mr. Robinson additionally accused the Parish of Jefferson of payroll fraud; maintained that he was being harassed because of his actions as a whistleblower; and demanded that the Parish compensate him in the amount of $80,000,000.00 for his grievances. This behavior ultimately | culminated in Mr. Robinson being placed on an involuntary leave of absence pursuant to Jefferson Parish Personnel Rule IX, §§ 14.2 and 14.4. , Specifically, the Parish was concerned that Mr. Robinson may be suffering from a mental health condition and directed him to take his position description to an attending physician so that the physician could provide written certification of Mr. Robinson’s fitness to perform his job duties satisfactorily.

Mr. Robinson thereafter saw Dr. Nguyen, who opined that Mr. Robinson was physically fit to perform his work duties. Mr. Robinson was additionally evaluated for fitness for duty by Jefferson Parish Medical Review Officer Dr. David Reiss pursuant to Jefferson Parish Personnel Rule IX, § 14.3. Upon evaluation, Dr. Reiss, aware of both the potentiality for serious and dangerous changes in people post-CVA and the seriousness of Mr. Robinson’s accusations, opined that Mr. Robinson should be evaluated by a forensic psychiatrist, and suggested Mr. Robinson see Dr. Daphne Glindmeyer.

Mr. Robinson saw Dr. Glindmeyer on August 3, 2012, and again on August 24, 2012. Dr. Glindmeyer, however, was unable to complete an evaluation on | ^August 3, 2012, due to Mr. Robinson’s failure to fully cooperate. Mr. Robinson attempted to have Ms. Margie Seeman of the Citizens for Good Government accompany him in his evaluation, which Dr. Glindmeyer explained was not allowed. He had several questions with regard to the purpose of the evaluation and the referral process. He further attempted to tape his meeting with Dr. Glindmeyer, which Dr. Glindmeyer explained also was not allowed. Dr. Glindmeyer ultimately terminated the evaluation, feeling that it was in Mr. Robinson’s best interest to obtain information and records from the Parish regarding his referral before moving forward.

Dr. Glindmeyer subsequently evaluated Mr. Robinson at their second meeting. Dr. Glindmeyer authored two reports dated October 10, 2012, and November 7, 2012. Based upon her evaluation, Mr. Robinson’s medical records, and his workplace documentation, Dr. Glindmeyer diagnosed Mr. Robinson with psychotic disorder due to a general medical condition, specifically post-stroke and craniotomy. Dr. Glindmeyer explained that Mr. Robinson presents as an individual who has paranoid delusional disorder and that Mr. Robinson’s delusions are mainly associated with his work at the Jefferson Parish Drainage Department. She stated that Mr. Robinson spends a tremendous amount of time thinking about the issues of “racial discrimination” and “payroll fraud” within the drainage department, and has become more paranoid that the Parish is trying to somehow wrong him or remove him because he was a “key witness.” Dr. Glindmeyer additionally explained that outside work, Mr. Robinson is typically a functioning member of society.

Dr. Glindmeyer ultimately opined that Mr. Robinson should not return to work pending a psychiatric evaluation and treatment, and that any return to work at a future date should be coordinated with Mr. Robinson’s treating psychiatrist. Dr. | (¡Glindmeyer explained that Mr. Robinson’s “delusional ideations are paranoid in nature and focus on work related issues;” therefore, “work related stressors would only serve to exacerbate and reinforce his delusional ideations.”

Mitch Theriot, Director of Drainage for the Parish of Jefferson, terminated Mr. Robinson from employment effective January 18, 2013, finding that Mr. Robinson was not fit for duty; i.e., that he could not effectively, safely, and satisfactorily perform the duties of his position.

Law & Discussion

The Jefferson Parish Department of Public Works-Drainage is a classified civil service system governed by a statutory system established by Title 33, Chapter 5, Part I of the Louisiana Revised Statutes. A classified civil servant is afforded protection in disciplinary actions taken without cause. La. Const. art. 10 § 8(A); Becker v. Jefferson Parish Dept. of Parks & Recreation, 09-662 (La.App. 5 Cir. 1/12/10), 30 So.3d 1007; Adams v. Jefferson Parish Department of Community Action Programs, 02-1090 (La.App. 5 Cir. 4/29/2003), 845 So.2d 1147; Lewis v. Jefferson Parish Dept. of Public Works, 99-16 (La.App. 5 Cir. 5/19/99), 761 So.2d 558, writ denied, 99-2906 (La.1/14/00), 753 So.2d 215. A dismissal of a civil servant “for cause” is synonymous with legal cause. Lewis, 761 So.2d at 559. Legal cause for disciplinary action exists if the facts found by the commission disclose that the conduct of the employee impairs the efficiency of the public service. Id. Further, the appointing authority is charged with the operation of its department, and it is within its discretion to discipline an employee for sufficient cause. Becker, 30 So.3d at 1013; Pope v. New Orleans Police Dept., 04-1888 (La.App. 4 Cir. 4/20/05), 903 So.2d 1, 5-6.

The civil service provisions of the Louisiana Constitution are designed to protect public career employees from political discrimination, such that “ ‘non-jpolicy? forming public employees are selected on the basis of merit and can be discharged only for insubordination, incompetency, or improper conduct,.and not for religious or political reasons.” Becker, 30 So.3d at 1013; Bannister v. Dep’t of Streets, 95-404 (La.1/16/96), 666 So.2d 641, 645.

In Jefferson Parish, aggrieved public employees may apply to the Personnel Board for a review of discharge or disciplinary action, at which time the appointing authority bears the burden of proving legal cause. Adams, 845 So.2d 1147. The Personnel Board can then consider only whether the action taken against the' employee was made in good faith for cause. La. R.S. 33:2561; Ruddock v. Jefferson Parish Fire Civil Service Bd., 96-831 (La.App. 5 Cir. 1/28/97), 688 So.2d 112, 114-15.

On appeal, this Court should apply the clearly wrong or manifest error rule. Wilson v. Jefferson Parish, 95-470 (La.App. 5 Cir. 1/17/96), 668 So.2d 1167, writ denied, 96-0413 (La.4/19/96), 671 So.2d 927. If made in good faith and for statutory cause, a decision of the civil service board should not be disturbed on judicial review. Moore v. Ware, 01-3341 (La.2/25/03), 839 So.2d 940, 945. Good faith does not occur if the appointing authority acts arbitrarily or capriciously, or as a result of prejudice or political expediency. Id. Arbitrary or capricious behavior means without rational basis for the action taken. Id. at 946.

Based on the above principles and our review of the record, we find no error in the Personnel Board’s finding. Mr. Robinson’s record of employment reflects that he was repeatedly disciplined and/or reprimanded for violating Parish and departmental policies/rules. The record reflects that Mr. Robinson received several written warnings, dated May 7, 2008, October 21, 2008, April 15, 2009, December 1, 2009, May 19, 2012, and June 28, 2012, regarding his insubordinate, disruptive, and threatening behavior. Mr. Robinson’s supervisors additionally met with him |sregarding his behavior and placed him on suspension, warning him that he would be terminated if his behavior did not improve.

Moreover, Dr. Glindmeyer, testifying as an expert in forensic psychiatry, explained at the hearing that Mr. Robinson suffers from a psychiatric disorder that is only made worse by being in his work environment. Dr. Glindmeyer testified that it was in Mr. Robinson’s best interest that he not return to work at the drainage department until or unless he is treated for his disorder and his treating psychiatrist suggests that he return.

Mr. Robinson presented no expert testimony to refute Dr. Glindmeyer’s diagnosis and opinions.

The appointing authority must prove by a preponderance of the evidence that the employee’s conduct did in fact impair the efficiency and orderly operation of the public service. Becker, supra at 1015. In light of the evidence and testimony presented at Mr. Robinson’s hearing, we find that the Parish of Jefferson met its burden and that the Personnel Board was not clearly wrong or manifestly erroneous in upholding Mr. Robinson’s termination.

Decree

For the foregoing reasons, we affirm the decision of the Jefferson Parish Personnel Board upholding Mr. Robinson’s termination. Costs of the appeal are assessed against Mr. Robinson.

AFFIRMED.

      . Mr. Robinson, utilizing his parish vehicle, entered private property to relieve himself. The parish vehicle became stuck and he called for a parish backhoe and dump truck to free his vehicle. The backhoe and dump truck also became stuck, causing additional damage to private property. Mr. Robinson was also reported by the lease holder as being rude and discourteous. On a separate occasion, Mr. Robinson backed his parish vehicle into Drainage Department equipment, causing damage, and failed to report the accident per parish policy. Additionally, Mr. Robinson received a red light and speeding ticket while utilizing his parish vehicle.

      . Mr. Robinson called his supervisor a ‘‘pencil” and a “sissy,” threatening Mr. Detiege that he was going to "get him.” Mr. Robinson additionally entered his supervisor's office while a meeting was being held with two fellow employees and yelled, "BAM!” stating "I gotcha for misappropriating federal money, Ha Ha Ha,” while waiving a piece of paper in the air.

      . Mr. Robinson threatened Larry Palmisano, a fellow parish employee, that he would "get him,” that the “FBI was coming,” he “should be careful,” his "God was bigger than [Mr. Palmisano's] God," that he "better watch out,” and that his "lawyer was going to get him.”

      . On June 28, 2012, Mr. Robinson sent Parish President John Young an email entitled, "Judgment Day choice that we made before GOD,” wherein he repeatedly quoted Bible scripture.

      . Mr. Robinson has consistently maintained and asserted that the Jefferson Parish Drainage Department racially discriminated against a fellow employee, Leon Melancon, by promoting employee, Frank Maness, rather than Mr. Melancon. Mr. Robinson has further maintained that Mr. Maness was paid a salary for a position that he was neither qualified for nor did he perform the duties of. He thereby asserted that the Parish of Jefferson committed payroll fraud and misappropriation of federal funds. These claims were investigated by both the Jefferson Parish District Attorney’s Office and the United States Equal Employment Opportunity Commission. Neither agency found any evidence of wrongdoing.

      . Jefferson Parish Personnel Rule IX, § 14.2, states, in part:
      Whenever an Appointing Authority concludes that an employee is unable to perform the essential functions of his position satisfactorily and/or without endangering himself, other employees and/or the general public, with or without reasonable accommodation that does not present an undue hardship, and the Appointing Authority believes that this inability to perform may be the result of a medical condition, physical or mental, the Appointing Authority may require the employee to undergo examination by a Parish physician, at Parish expense, certifying that the employee is not affected by a medical condition which interferes with the employee’s ability to perform the essential functions of his position satisfactorily and/or without endangering himself, other employees and/or the general public, with or without reasonable accommodation that does not present an undue hardship.
      Jefferson Parish Personnel Rule IX, § 14.4, states:
      Pending the receipt of the Parish physician’s certification, the Appointing Authority may place the employee on a leave of absence charged to the employee’s accumulated Sick Leave, accumulated Annual Leave or Leave Without Pay, subject to the conditions set forth in Section 5.1(A-D) of this Rule.

      . Upon being placed on fitness for duty leave, Mr. Robinson exercised his right to appeal that action under docket no. 2012-20 before the Jefferson Parish Personnel Board. On January 8, 2013, after a hearing, the hearing examiner ruled that Mr. Robinson was not fit for duty and dismissed his appeal.

      . Jefferson Parish Personnel Rule IX, § 14.3, states:
      The Appointing Authority may require an employee to undergo examination by a Parish physician, at Parish expense, for the purpose of obtaining confirmation of the employee’s ability to return to or continue in his position.


author: JUDE G. GRAVOIS, Judge.

text:
    Alice Rooney SCHINDLER v. Charles V. SCHINDLER.
    No. 13-CA-361.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 19, 2013.
    Jeffrey A. Jones, Attorney at Law, Mandeville, Louisiana, for Plaintiff/Appellant.

      David I. Courcelle, Scott C. Stansbury, Attorneys at Law, Metairie, Louisiana, for Defendant/Appellee.
    Panel composed of Judges SUSAN M. CHEHARDY, JUDE G. GRAVOIS, and STEPHEN J. WINDHORST.
   JUDE G. GRAVOIS, Judge.

|gThe succession of plaintiff, Alice Rooney Schindler, appeals a trial court judgment finding that certain donations inter vivos made by Mrs. Schindler’s late husband, Charles V. Schindler, allegedly from their community property, were remunerative in nature, thus denying her request to nullify the donations. For the reasons that follow, we affirm.

PROCEDURAL BACKGROUND

In 2003, before her death, Alice Rooney Schindler filed suit against her husband, Charles V. Schindler, for separation of property in order to stop him from spending their community funds without her consent and to separate the remainder of their property. She later amended her suit to include as defendants several persons to whom Mr. Schindler gave money. Mr. Schindler died in 2004 during the pen-dency of the suit. Mrs. Schindler died in 2007; her succession was ^thereupon substituted as party-plaintiff. The defendants who went to trial were Cindy Moore and Trudy Davis. After a two-day bench trial, the trial court rendered judgment in favor of Ms. Moore and Ms. Davis, dismissing plaintiffs claims against them with prejudice at plaintiffs costs. Following the denial of plaintiffs motion for a new trial, plaintiff appealed the judgment only as to Ms. Moore.

ASSIGNMENTS OF ERROR

On appeal, plaintiff argues the following assignments of error, to-wit:

1. The Trial Court erred in not placing the burden of proof on the defendant Trudy Davis to prove that the donation in question was remunerative.
2. The Trial Court erred in finding that the donation in question was remunerative.
3. The Trial Court erred in finding that the funds donated to Trudy Davis were separate funds of Charles Schindler, and not community property with Mrs. Schindler.
4. The Trial Court erred in finding that the amount of $111,000.00 donated by Mr. Schindler to Ms. Davis was a “usual and customary amount”, which did not require the consent of Mrs. Schindler.

FACTS

The record and the briefs show that Mr. and Mrs. Schindler were married in 1951. They had seven sons together and lived in New Orleans. Sometime around 1964, they began living separate and apart, though they never sought a formal legal separation, divorce, or separation of property until Mrs. Schindler’s suit in 2003.

As found by the trial court, the record reflects that the parties were relatively wealthy. Mr. Schindler received a large personal injury settlement in the 1970s, which he invested in stocks that apparently performed very well. Mrs. Schindler | testified in her deposition that the stock was ultimately converted to municipal bonds in the 2000s, with two $500,000 bonds being placed in Mrs. Schindler’s name alone, and with three $500,000 bonds being placed in Mr. Schindler’s name alone. The parties also owned several other income-producing rental properties, as well as acreage (which included a “camp”) near Meadville, Mississippi. A CPA’s report entered into evidence shows that at the time of Mr. Schindler’s death, the community was valued at between $3.8 and $4.8 million. Evidence and testimony showed that Mr. and Mrs. Schindler were very generous with their wealth, making donations to various family members and Mends. As noted by the trial court in its reasons for judgment:

The Schindlers appear to have been very generous with their wealth. They bought houses for their son Jon, Anna Schindler (ex-daughter-in-law), and Cindy Moore (Charles’ god-daughter).... They purchased a car for their son Michael, and gave him the down payment for his home.... They helped their son Jon pay child support, and paid all of his expenses.... They paid tuition for two of their grandchildren, and helped Anna Schindler with tuition at Tulane University. ... They donated a municipal bond in the amount of $500,000.00 to Anna Schindler, and gave $250,000.00 to Kip Briggs (Anna Schindler’s boyfriend).

Mrs. Schindler testified in her deposition that she “kept the books” for both herself and Mr. Schindler, although if he wanted money, he would just “write himself a check.” She agreed that they each had money that they could spend without the other’s permission, although she testified that when she bought a house for Anna Schindler, her ex-daughter-in-law with whom she lived and who provided her with physical care for an extended period of time, including after she suffered two strokes, she told Mr. Schindler about that purchase.

lsMr. Schindler in his later years suffered serious health problems as well, including cancer of the stomach or esophagus. Because none of his children apparently desired or was able to provide care for him, he sought the services of defendants Trudy Davis and Cindy Moore, among others, as caregivers. After being introduced to each other in late 1999, Ms. Davis began taking care of Mr. Schindler around January of 2000 until approximately June of 2003, according to her testimony. Mrs. Schindler alleged that Mr. Schindler gave Ms. Davis two checks totaling $9,000, plus an additional $102,000 for the purchase of a house, from their community property and to which she did not consent, although she admitted that he did tell her of his intent to fund Ms. Davis’ house purchase beforehand.

FIRST AND SECOND ASSIGNMENTS OF ERROR

Which party has the burden of proof of remunerative donations?

Did the trial court err in finding the donations remunerative?

Plaintiff first argues that the trial court erred in fading to place the burden of proof upon Ms. Davis that the donations to Ms. Davis were remunerative, not gratuitous. Plaintiff further argues that Ms. Davis failed in her burden because the only evidence she presented was her own testimony, which was inadequate, and she failed to present evidence of a written contract between herself and Mr. Schindler for the payment of her services, proof of the time she spent caring for him or other records, or other witnesses who could corroborate her testimony regarding the amount and value of her services to Mr. Schindler. Plaintiff cites La. C.C. art. 1846, which states that an unwritten contract over $500 must be proven by at least one witness or other corroborating circumstances.

IfiMs. Davis responds that the trial court did, in fact, properly place the burden of proof upon her to show that the donations Mr. Schindler to her were remunerative, and further argues that her testimony was enough to bear her burden of proof, because plaintiffs claims are not controlled by La. C.C. art. 1846, as that article pertains to contracts not reduced to writing, not donations.

The trial court, in its reasons for judgment, characterized plaintiffs claim as one to nullify the donations made to Ms. Davis because the donations were not usual and customary gifts of a value commensurate with the economic situation of the Schin-dlers, and because she did not consent to the donations.

In its reasons for judgment, the trial court found that plaintiffs claim failed on several alternative grounds. First, the trial court found that, assuming the donations to Ms. Davis were gratuitous, they were of a value commensurate with the economic position of the spouses, and thus Mrs. Schindler’s consent was not required under La. C.C. art. 2349. Next, he found that the alleged donations were funded by Mr. Schindler’s separate property, and thus Mrs. Schindler’s consent was not required. Finally, he found that the donations to Ms. Davis were remunerative.

“The donation of community property to a third person requires the concurrence of the spouses, but a spouse acting alone may make a usual or customary gift of a value commensurate with the economic position of the spouses at the time of the donation.” La. C.C. art. 2349. “When the concurrence of the spouses is required by law, the alienation, encumbrance, or lease of community property by a spouse is relatively null unless the other spouse has renounced the right to concur.” La. C.C. art. 2353.

Ms. Davis testified that Mr. Schindler’s donations to her were in payment for services rendered. She said that she was introduced to Mr. Schindler in late 171999 by Mr. Schindler’s friend Keith Ingram, with whom he had served in the military. In early 2000, she said that Mr. Schindler told her his health was worsening and he asked her to start caring for him. She described that he had neck pain from a previous broken neck, as well as other serious ailments, including cancer. He told her that his family was either unable or unwilling to care for him. She said that she cared for him until June of 2003, or around three-and-a-half years. Ms. Davis described helping him on occasion with enemas and suppositories, as well as helping him with other medical care necessitated by bleeding caused by his stomach cancer. She would take him to the doctor, to the hospital, and to a pain management clinic. She accompanied him to Philadelphia to receive a procedure for his cancer, a trip that lasted three weeks.

Ms. Davis stated that she did not live with Mr. Schindler or have a particular schedule of care for him, but that she was “on-call” and that Mr. Schindler called her a lot. For some periods, she accompanied him every other weekend to his property in Mississippi. Some of the weekend trips to Mississippi were three or four days long. She testified that at those times, the only family that would visit Mr. Schindler was his son Jon, who visited occasionally. Ms. Davis said besides her, she knew of others who were also caring for Mr. Schindler, including Anna Schindler, Cindy Moore, and occasionally Jon.

Ms. Davis testified that her agreement with Mr. Schindler was that she would be paid for caring for him. He proposed to pay her $13 per hour, but such payments were never made on that basis, and that he never paid her anything, except for the two checks totaling $9,000, and by buying her the house. She acknowledged receiving checks from Mr. Schindler for $4,000 on April 2, 2003 and $5,000 on November 22, 2003, and that he purchased a home for her in Pearl River, Louisiana, on June 9, 2003, as evidenced by a check from Mr. Schindler for 18$102,000 payable directly to the closing attorney. She stated that Mr. Schindler lived at her house for several weeks, after which he left and was thereafter cared for by others.

Ms. Davis stated that she eared for Mr. Schindler between 50 and 60 hours per week. On cross-examination, she agreed that Mr. Schindler was able to drive and did not spend all of his time with her, except for on the weekends she accompanied him to Mississippi. She agreed that he visited various family members and other people during that three-and-a-half year period she cared for him. She testified that although she did not keep track of her hours, Mr. Schindler did. She said that when they were together, including when she accompanied him to Mississippi, Mr. Schindler paid for all of their expenses, including food and meals.

Ms. Davis admitted that at the time she was caring for Mr. Schindler, she also worked at a store in the New Orleans French Quarter approximately 18-20 hours per week and also for Mr. Ingram approximately 20-30 hours per week at his office in Slidell. She said that she worked for Mr. Schindler after those two jobs, and that her job in the French Quarter was only about two days per week.

Ms. Davis testified that she used the two checks Mr. Schindler gave her (totaling $9,000) for household expenses and for some of Mr. Schindler’s expenses, including his medication expenses, and for insurance and reimbursement for expenses for running errands for him, including gas. Ms. Davis said that Mr. Schindler told her that he was a millionaire. She said that she was aware that he owned several properties in New Orleans, in addition to his property in Mississippi. She testified that he told her he had money separate from Mrs. Schindler, specifically three $500,000 municipal bonds. She noted that she had been present for Mrs. Schindler’s deposition in 2004, wherein Mrs. Schindler | described how she and Mr. Schindler got the two and three $500,000 bonds, respectively. Ms. Davis also agreed that Mrs. Schindler, in her deposition, stated that Mr. Schindler told her (Mrs. Schindler) that he intended to buy a house for Ms. Davis and. told her that Ms. Davis had provided care for him. She also agreed with counsel that Mrs. Schindler had stated in her deposition that if Ms. Davis had in fact provided care for Mr. Schindler, Mrs. Schindler agreed she should be paid for it.

Upon review, we find that the trial court correctly placed the burden of proof of the remunerative nature of the donations upon Ms. Davis, and that the trial court correctly found that she had met that burden. Though Jon Schindler testified that he thought Ms. Davis was running a “scam,” the trial court concluded that the evidence showed otherwise. We find that the record, taken as a whole, contains a rational basis for the trial court’s factual conclusion. Ms. Davis testified in detail regarding the time she spent with Mr. Schindler and what services she performed for him. Mrs. Schindler also noted in her deposition that Mr. Schindler had very serious medical problems during this time that required that he be cared for, and that she did not provide such care. Mrs. Schindler admitted that she was not around Mr. Schindler and Ms. Davis and thus did not know what Ms. Davis did for Mr. Schindler. Accordingly, we find no manifest error in the trial court’s factual conclusion in this regard. These assignments of error are without merit.

THIRD ASSIGNMENT OF ERROR

Were funds donated Mr. Schindler’s separate property?

Plaintiff next argues that the trial court erred in finding that Mr. Schindler made the donations to Ms. Davis out his separate property. Plaintiff argues that under La. C.C. art. 2340, the presumption in Louisiana is that marital property is community in nature. Plaintiff notes that a judgment of separation of property b nbetween the Schindlers was never rendered. She also argues that the parties had joint accounts at Schwab, and that their accounts pertaining to their real estate and rental properties were maintained in both names.

In its reasons for judgment, the trial court concluded that either the funds used to purchase the stock that later was cashed in for the five municipal bonds that Mr. and Mrs. Schindler had placed in their separate names was Mr. Schindler’s separate property because the stock was purchased with the proceeds from Mr. Schindler’s personal injury settlement; or alternatively, that even if those funds were to be considered community property, the Schindlers had nonetheless decided to treat those funds as separate property when they placed the stock proceeds in municipal bonds in their separate names, and thus Mr. Schindler did not need Mrs. Schindler’s consent to make donations from these funds.

Mrs. Schindler testified in her deposition that she and her husband were free to spend the money from the municipal bonds as they pleased. Thus, regardless of whether those funds were characterized as community or separate, upon review, we find no manifest error in the trial court’s conclusion that Mrs. Schindler’s consent was not required for Mr. Schindler to make donations from these funds to Ms. Davis. This assignment of error is also without merit.

FOURTH ASSIGNMENT OF ERROR

Were the funds donated a usual and customary amount ?

Lastly, Mrs. Schindler argues that the amount of funds donated to Ms. Davis was not a usual and customary amount. However, she argues merely that the amount was such, over $100,000, that no spouse should be able to give that amount away without the other spouse’s consent.

As noted above, the trial court included in its reasons for judgment a short recitation of some of the various donations made by the Schindlers, jointly or |nseparately. The amount of those donations, as noted above by the trial court, makes it clear that the donations totaling $111,000 made by Mr. Schindler to Ms. Davis were quite in line with, and were in fact less than, the very generous donations that the Schin-dlers made to others who were or were not their family members, and/or who provided or did not provide care to them. Under the particular facts and circumstances of this case, we agree with the trial court’s finding that the amount of funds donated by Mr. Schindler to Ms. Davis was a usual and customary amount relative to the Schindlers. Accordingly, this assignment of error is without merit.

CONCLUSION

For the reasons stated herein, we find no merit to the assignments of error raised by plaintiff/appellant. Accordingly, the trial court’s judgment under review is hereby affirmed.

AFFIRMED.

      . No judgment of separation of property was ever rendered, however.

      . For ease of reference, plaintiff will be referred to as "plaintiff” or "she” rather than "the succession.”

      . Mrs. Schindler’s deposition was taken in 2004 and was entered into evidence at trial in lieu of testimony because she was deceased by the time of trial.

      . Prior to her retirement, Mrs. Schindler had an income tax return preparation business.

      . Mr. Schindler's cancer was described as one or both in different places in the record.

      .Because Ms. Moore is not a party in this appeal, details about her financial transactions with Mr. Schindler will not be discussed in this opinion.