author: GRAVOIS, J.

text:
    Alan KAYE, MD v. Ronald A. KARP and Law Office of Karp, Wigodsky, Norwind & Gold, P.A.
    NO. 17-CA-397
    Court of Appeal of Louisiana, Fifth Circuit.
    December 27, 2017
    COUNSEL FOR PLAINTIFF/APPELLANT, ALAN KAYE, MD, Paul A. Lea, Jr., Covington.
    COUNSEL FOR DEFENDANT/APPELLEE, RONALD A. KARP AND LAW OFFICE OF KARP, WIGODSKY, NORWIND & GOLD, P.A., Wiley J. Beevers, Shayna Beevers Morvant, Steven M. Mauterer, Gretna.
    Panel composed of Judges Jude G. Gravois, Marc E. Johnson, and Robert A. Chaisson
   GRAVOIS, J.

In this suit on an open account, plaintiff, Dr. Alan Kaye, appeals a trial court judgment that granted an exception of lack of personal jurisdiction filed by defendant, Law Office of Karp, Wigodsky, Norwind & Gold, P.A. (the "law firm"), dismissing plaintiff's suit with prejudice. For the following reasons, we reverse the trial court's grant of the exception of lack of personal jurisdiction and remand the matter for further proceedings.

FACTS AND PROCEDURAL BACKGROUND

On March 28, 2016, Dr. Kaye, an anesthesiologist who practices and lives in Jefferson Parish, Louisiana, filed a Petition in Suit on Open Account in the First Parish Court for the Parish of Jefferson against defendant, a Maryland law firm. In his petition, Dr. Kaye alleged that he was personally contacted and retained by the law firm in 2015 as a medical expert to testify in the medical malpractice claim the law firm was handling as per a fee schedule sent to the law firm by Dr. Kaye. The petition further alleged that the law firm agreed to pay Dr. Kaye for his services and directed him to examine the patient out of state, review numerous and voluminous medical records, and provide deposition and trial testimony as an expert; however, the law firm had refused to pay the balance of his bill for services rendered, despite demand. The suit also named Ronald A. Karp individually as a defendant.

In response to the petition, defendants filed various exceptions, including, pertinent to this appeal, an exception of lack of personal jurisdiction over the law firm. A hearing was held on the exceptions on June 20, 2016. At the conclusion of the hearing, the trial court orally denied the exception of lack of personal jurisdiction filed by the law firm. A written judgment was signed by the trial court on June 22, 2016 denying the exception.

On July 21, 2016, the law firm filed a writ application with this Court, seeking this Court's supervisory review of the trial court's denial of its exception of lack of personal jurisdiction over the law firm. In a disposition rendered on September 1, 2016, a majority of a five-judge panel of this Court granted the writ application, finding that "[t]he petition fails to contain allegations such that [the law firm] performed any work in Louisiana, that any [law firm] lawyer is licensed to practice law in Louisiana, or one ever travelled to Louisiana." This Court further found that "[t]he petition merely states that Dr. Kaye performed the majority of his work in Louisiana." This Court granted the law firm's exception of lack of personal jurisdiction, and remanded the matter to the trial court for further proceedings.

In response to this Court's writ disposition, on November 18, 2016, with leave of court, Dr. Kaye substituted his First Amended Petition with a Second Amended Petition in Suit on Open Account. The amended petition specifically alleged that the law firm contacted him to retain his services as a medical expert, rather than the other way around. The amended petition further reiterated and expanded on all of the various services that Dr. Kaye had performed at the request and under the direction of the law firm in connection with his retention by the law firm as an expert witness. According to the amended petition, the services performed by Dr. Kaye were requested and accomplished mainly through emails and telephone calls. Dr. Kaye asserted that he performed services for the law firm under the retention agreement both in Louisiana and out of state. The amended petition also, however, contained the following allegation of the law firm's activities within this state in connection with its retention of Dr. Kaye as an expert witness in its malpractice case, to-wit:

Additional tasks carried out pursuant to the terms of the parties' agreement and in furtherance of [the law firm's] business on the said [client] matter include, but are not limited to, [the law firm's] travel to, and preparation for and attendance/defense of, Dr. Kaye's pretrial deposition here in Jefferson Parish.

Thus, the amended petition specifically alleges that Dr. Kaye's deposition for the law firm's malpractice case was taken in Jefferson Parish, and that a member of the law firm traveled to Louisiana to prepare for, attend, and defend Dr. Kaye's deposition.

On December 8, 2016, the law firm filed a second exception of lack of personal jurisdiction, asserting that Dr. Kaye still had not established a constitutional basis for the assertion of personal jurisdiction by Louisiana over the out-of-state law firm. Dr. Kaye opposed the exception, attaching various exhibits to his memorandum in opposition, including his affidavit which further expounded on the various actions and activities taken by both he and the law firm in connection with the retention agreement. A hearing on the exception was held on April 19, 2017, at which time the parties presented argument but no witnesses. Over the law firm's objection, the trial court admitted the affidavit and exhibits attached to Dr. Kaye's opposition to the exception. At the conclusion of the hearing, the trial court orally granted the exception of lack of personal jurisdiction filed by the law firm and dismissed Dr. Kaye's suit with prejudice. A written judgment to this effect was signed by the trial court on April 26, 2017. On May 12, 2017, Dr. Kaye moved for a devolutive appeal of the judgment, which the trial court granted on May 16, 2017.

ANALYSIS

On appeal, Dr. Kaye argues that the trial court erred in granting the exception of lack of personal jurisdiction filed by the law firm. He argues that the trial court misunderstood the prior ruling of this Court, the unpublished writ disposition in writ number 16-C-423, which granted the law firm's exception of lack of personal jurisdiction, but remanded the matter to the trial court for further proceedings. Dr. Kaye also argues that his amended petition alleged facts showing that the law firm had the requisite minimum contacts with this forum, supported by the attachments to his opposition, such that personal jurisdiction should be found.

When reviewing a trial court's legal ruling on a declinatory exception of lack of personal jurisdiction, an appellate court applies a de novo standard. Jacobsen v. Asbestos Corp. , 12-655 (La. App. 5 Cir. 5/30/13), 119 So.3d 770, 778. However, the trial court's factual findings underlying the decision are reviewed under the manifest error standard of review. Id. ; Winston v. Millaud , 05-0338 (La. App. 4 Cir. 4/12/06), 930 So.2d 144, 149-50 (noting that "jurisdiction itself is a question of law subject to de novo review."). Questions of law are reviewed de novo , without deference to the legal conclusions of the trial court. Power v. State Farm Fire & Cas. Co. , 15-796 (La. App. 5 Cir. 5/26/16), 193 So.3d 471, 473.

The exercise of personal jurisdiction over a non-resident defendant comports with due process when a two-part test is satisfied: first, the defendant must have had certain "minimum contacts" with the forum state; and second, as a result of those contacts, the maintenance of the suit would not offend traditional notions of fair play and substantial justice.

Jacobsen v. Asbestos Corp. , 119 So.3d at 779. As this Court stated in that case:

The initial burden of proving sufficient minimal contacts to establish personal jurisdiction rests with the party asserting jurisdiction is proper. de Reyes , 586 So.2d at 107 ; Swoboda v. Hero Decks , 09-1303, p. 2 (La. App. 4 Cir. 3/31/10), 36 So.3d 994, 997 (holding that the party seeking to invoke personal jurisdiction bears the burden of establishing such jurisdiction exists). Once sufficient minimum contacts have been established, a presumption of reasonableness of jurisdiction arises. deReyes , supra . "The burden then shifts to the opposing party to prove the assertion of jurisdiction would be so unreasonable in light of traditional notions of fair play and substantial justice as to overcome the presumption of reasonableness created by the defendant's minimum contacts with the forum." Id.
As to the first test of "minimum contacts", "[o]pinions in the wake of the pathmarking International Shoe decision have differentiated between general or all-purpose jurisdiction, and specific or case-linked jurisdiction." Goodyear Dunlop Tires Operations, S.A. v. Brown , 564 U.S. 915, 131 S.Ct. 2846, 2851, 180 L.Ed.2d 796 (2011) (citing Helicopteros Nacionales de Colombia, S.A. v. Hall , 466 U.S. 408, 414, 104 S.Ct. 1868, 80 L.Ed.2d 404, nn.8-9 (1984) ). Explaining the difference, the Supreme Court stated:
A court may assert general jurisdiction over foreign (sister-state or foreign-country) corporations to hear any and all claims against them when their affiliations with the State are so "continuous and systematic" as to render them essentially at home in the forum State. Specific jurisdiction, on the other hand, depends on an "affiliatio[n] between the forum and the underlying controversy," principally, activity or an occurrence that takes place in the forum State and is therefore subject to the State's regulation. In contrast to general, all purpose jurisdiction, specific jurisdiction is confined to adjudication of "issues deriving from, or connected with, the very controversy that establishes jurisdiction."

(Footnote added.)

The minimum contacts between a non-resident defendant and the state must be based on some act by the defendant through which he purposefully avails himself of the privilege of conducting activities within the state and thereby invokes the benefits and protections of the state's law. Marchand v. Asbestos , 10-0476 (La. App. 4 Cir. 11/10/10), 52 So.3d 196, 197, citing International Shoe Co. v. Washington , 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945) ; deReyes v. Marine Mgt. and Consulting , supra . The non-resident must have purposefully availed itself of the privilege of conducting activities within the forum state such that it can be said that it should have reasonably anticipated being haled into court there. World-Wide Volkswagen Corp. v. Woodson , 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980). The "purposeful availment" requirement ensures that the defendant will not be haled into a jurisdiction solely as a result of a random, fortuitous, or attenuated contact, or by the unilateral activity of another party or a third person. de Reyes v. Marine Mgt. and Consulting , 586 So.2d at 106. A single act of purposeful contact with the forum state may suffice. Ruckstuhl v. Owens Corning Fiberglas Corp. , 98-1126 (La. 4/13/99), 731 So.2d 881, 885, citing Burger King Corp. v. Rudzewicz , 471 U.S. 462, 475, 105 S.Ct. 2174, 2183, 85 L.Ed.2d 528 (1985). Where a forum seeks to assert specific jurisdiction over an out-of-state defendant who has not consented to suit there, the requirement of meaningful contacts is satisfied if the defendant has purposefully directed his activities at residents of the forum, and the litigation results from alleged injuries that arise out of or relate to those activities. de Reyes v. Marine Mgmt. & Consulting, Ltd. , 586 So.2d at 104.

Upon de novo review, we find that Dr. Kaye's second amended petition, considered on its face without considering the objected-to attachments to his opposition to the law firm's exception, establishes sufficient "minimum contacts" of the law firm to the subject forum (Jefferson Parish), such that personal jurisdiction in this forum is proper. Particularly, Dr. Kaye's second amended petition expanded the factual allegations in that he now alleged that, in addition to the law firm making the first contact with Dr. Kaye to retain him as an expert witness in a medical malpractice case it was handling, the law firm traveled to Louisiana to prepare for, attend, and defend Dr. Kaye's deposition, which had been noticed by opposing counsel in the malpractice case. These allegations were unrefuted by the law firm. These activities clearly amounted to the law firm's "doing business" within this state. Again, a single act of purposeful contact with the forum state may suffice. See Ruckstuhl v. Owens Corning Fiberglas Corp. , supra . Further, the law firm's travel by one of its partners to Louisiana was clearly not a random, fortuitous, or attenuated contact, or a unilateral activity of another party or a third person. de Reyes v. Marine Mgt. and Consulting , 586 So.2d at 106. It is clearly not isolated or fortuitous that a party's expert witness's deposition may be noticed in his home state and that a party generally expects to defend its expert's deposition wherever it may be noticed. The current suit on an open account is the result of the law firm's purposefully directed activities at Dr. Kaye, a resident of the forum, hiring him to be an expert witness, and this litigation results from the alleged injuries (nonpayment of professional services) that arise out of those activities. Id. at 104.

Because Dr. Kaye established sufficient "minimum contacts" of the law firm to Jefferson Parish, such that personal jurisdiction in this forum is proper, the burden then shifted to the law firm to prove that the assertion of jurisdiction would be so unreasonable in light of traditional notions of fair play and substantial justice as to overcome the presumption of reasonableness created by the law firm's minimum contacts with the forum. In determining this fundamental fairness issue, we must examine (1) the defendant's burden; (2) the forum state's interest; (3) the plaintiff's interest in convenient and effective relief; (4) the judicial system's interest in efficient resolution of controversies; and (5) the state's shared interest in furthering fundamental social policies. Ruckstuhl v. Owens Corning Fiberglas Corp. , 731 So.2d at 890.

The record reflects that the law firm's affidavit attached to its second exception was not sufficient to carry its shifted burden that the assertion of jurisdiction would be so unreasonable in light of traditional notions of fair play and substantial justice. The affidavit did not address the five-part test noted above. The record, however, does contain enough information for this Court to make the necessary evaluation. First, the defendant's burden has been described in terms of traveling to the forum state to defend the suit. Ruckstuhl v. Owens Corning Fiberglas Corp. , supra . We find this burden to be slight, given that the defendant law firm sought and hired Dr. Kaye, knowing that he was a Louisiana resident, and has already traveled to Louisiana at least once to defend Dr. Kaye's deposition. Second, we find that Louisiana has a significant interest in seeing that its resident may seek relief in a Louisiana court, given that defendant sought out Dr. Kaye in Louisiana and that parts of the work contemplated by the parties' contract were performed here. We also find that Dr. Kaye has an interest in convenient relief, given that his services were sought out by the law firm and not the other way around. The law firm also argues that "all" of the witnesses to the case are in either Virginia or Maryland, but we find that the law firm is conflating this case with the medical malpractice case. In this suit on an open account, the primary witnesses will be Dr. Kaye and representatives of the law firm, who have already expressed a willingness to travel to Louisiana, when such concerned the medical malpractice case. Finally, in considering the shared interest of the several states in furthering fundamental substantive social policies, we must look to the procedural and substantive policies of other states whose interests are affected by the assertion of jurisdiction by this Court, as directed by the court in Ruckstuhl v. Owens Corning Fiberglas Corp. , supra . The record contains no discussion of the various interests of Virginia or Maryland, but also nothing to suggest that their policies would be offended by allowing a Louisiana resident to sue for an open account in a Louisiana court under the specific facts and minimum contacts with Louisiana presented here. Accordingly, in light of the above, we find that the assertion of jurisdiction in this forum would not be so unreasonable in light of traditional notions of fair play and substantial justice as to overcome the presumption of reasonableness created by the law firm's minimum contacts with the forum.

CONCLUSION

For the foregoing reasons, we reverse the trial court's grant of the exception of lack of personal jurisdiction filed by the Law Office of Karp, Wigodsky, Norwind & Gold, P.A., and remand the matter for further proceedings.

REVERSED AND REMANDED

      Mr. Karp also filed an exception of no cause of action regarding the suit against him individually. The exception was granted, and he was dismissed from the suit in his individual capacity. This ruling was not appealed.

      In response to the law firm's exception of lack of subject matter jurisdiction, Dr. Kaye filed an amended petition with leave of court on June 6, 2016, reducing the demanded amount in his suit from $27,437.47 to $20,000.00.

      See Alan Kaye, MD v. Law Office of Karp, Wigodsky, Norwind & Gold, P.A. , 16-423 (La. App. 5 Cir. 9/1/16) (unpublished writ disposition). The two dissenting judges on the writ disposition would have denied the writ application, finding that on the showing made, relator (the defendant law firm) did not include enough information in the writ application for this Court to discern whether defendant had met the required evidentiary burden in the trial court.

      The law firm objected to the affidavit and exhibits as being hearsay evidence.

      On April 19, 2017, the law firm submitted a written judgment to the trial court and faxed a copy of the proposed judgment to Dr. Kaye's counsel that same day, as evidenced by the certificate accompanying the proposed judgment. No objection being made to the proposed judgment, which dismissed the case, it was signed by the trial court on April 26, 2017. Notices of the judgment were mailed by the clerk of court to the parties that same day.
      Because this judgment is from a parish court, appellate delays are governed by La. C.C.P. art. 5002, not La. C.C.P. art. 2087, as Dr. Kaye alleged in his motion for appeal. Prior to oral argument, this Court sua sponte found the timeliness of this appeal questionable, given that the motion for appeal was filed on May 12, 2017, some sixteen days after the notice of the judgment was mailed to the parties on April 26, 2017. The parties responded to a rule to show cause issued by this Court as to why this appeal should not be dismissed as untimely. In parish court cases, appeal delays run from the date of receipt of the notice of judgment, not the date of the mailing of the notice of judgment. Alexander v. Maki , 15-517 (La. App. 5 Cir. 1/4/16), 183 So.3d 821, 822-23. Dr. Kaye's counsel alleged in brief in response to the rule to show cause (and in an affidavit attached to his brief) that he received the notice of the judgment "to the best of [his] recollection" on or about May 5, 2017, some nine days after the notice of the judgment was mailed. Dr. Kaye's counsel contended that his mail was routinely delayed, despite some other clear instances in the appellate record of receipt of mail within a much shorter time, one to five days. Because the date of receipt of notice of the judgment could not be firmly established, this Court shall maintain the appeal, as appeals are favored under the law, and any doubt as to the timeliness of an appeal shall be resolved in favor of maintaining, rather than dismissing an appeal. Hacienda Constr., Inc. v. Newman , 10-18 (La. App. 5 Cir. 6/29/10), 44 So.3d 333, 336.

      de Reyes v. Marine Management and Consulting, Ltd, et al. , 586 So.2d 103 (La. 1991).

      Because of our finding that Dr. Kaye's second amended petition, considered on its face without considering the objected-to attachments to his opposition to the law firm's exception, establishes sufficient "minimum contacts" of the law firm to the subject forum (Jefferson Parish), such that personal jurisdiction in this forum is proper, we pretermit any discussion on whether the objected-to attachments to Dr. Kaye's opposition to the law firm's exception were properly admitted and considered by the trial court. When no evidence is introduced at the trial of the exception, the court is restricted to the allegations of the petition, which for purposes of the exception are to be accepted as true. Matthews v. United Fire & Casualty Ins. Co. , 16-0389 (La. App. 4 Cir. 3/8/17), 213 So.3d 502, 505. We will thus review the merits of Dr. Kaye's opposition to the exception considering only the allegations contained in his seconded amended petition, which for purposes of the exception are to be accepted as true.

      The law firm argues that it did not practice law within this state, and that none of its attorneys are licensed to practice law within this state. However, it is undisputed that the law firm did in fact send an attorney to Louisiana to defend Dr. Kaye's deposition, which was noticed in Louisiana. While it might be argued that the law firm's attorney was or was not engaged in "practicing law" within this state while defending Dr. Kaye's deposition, clearly the firm was "doing business" with its expert witness within this state at that time.

      Plaintiff did not object to defendant's affidavit.


source: Caselaw Access Project

author: CHAISSON, J.

license: Public Domain

text:
    TTC PROPERTIES, INC. v. PARISH OF JEFFERSON
    NO. 17-CA-363
    Court of Appeal of Louisiana, Fifth Circuit.
    December 27, 2017
    COUNSEL FOR PLAINTIFF/APPELLANT, TTC PROPERTIES, INC., David J. Halpern, Jill A. Gautreaux, Tod J. Everage
    COUNSEL FOR DEFENDANT/APPELLEE, PARISH OF JEFFERSON, Kenneth B. Krobert, Bessie L. Renfrow
    Panel composed of Judges Susan M. Chehardy, Fredericka Homberg Wicker, and Robert A. Chaisson
   CHAISSON, J.

TTC Properties, Inc. ("TTC") appeals a January 31, 2017 judgment of the trial court affirming the Jefferson Parish Council's motions to deny TTC's applications to rezone its properties and denying TTC's Petition for Writ of Certiorari of the Decision of Jefferson Parish Council Concerning Rezoning Application.

FACTS AND PROCEDURAL HISTORY

On July 7, 2017, TTC filed a Petition for Writ of Certiorari of Decision of Jefferson Parish Council Concerning Rezoning Application. At issue are the following three parcels of immovable property owned by TTC located in the Woodmere Subdivision of Jefferson Parish:

• Lot 47, Square A, Woodmere Subdivision; bearing municipal address 2616 Destrehan Avenue, Harvey, Louisiana;
• Lot 3, Square A, Woodmere Subdivision; bearing municipal address 3709 Long Leaf Lane, Harvey, Louisiana; and
• Lot 5, Square A, Woodmere Subdivision; bearing municipal address 3717 Long Leaf Lane, Harvey, Louisiana.

TTC purchased the properties at 3709 and 3717 Long Leaf Lane on September 26, 1991. At that time, both of those parcels, and the property at 2616 Destrehan Avenue, were zoned R-3, a classification which permitted four-family residential structures like the ones existing on all three parcels. Following a 1994 Parish Planning Department study for the purpose of formulating a master plan to ensure more compatible land uses with existing single family development, the Parish rezoned the entire neighborhood (including all three of TTC's parcels) to R-1A, which resulted in legally non-conforming uses for the four-plex structures located on all three parcels. On April 23, 2003, TTC purchased the property at 2616 Destrehan Avenue. Sometime around 2006, the four-plexes became vacant and remained vacant long enough for the termination of their legally non-conforming uses pursuant to the Comprehensive Zoning Ordinance.

On September 25, 2013, TTC filed applications for zoning changes for all three properties with the Jefferson Parish Planning Department in order to change the zoning classification for the properties from single-family residential R-1A to multifamily residential R-3, which was necessary in order to effect repairs to the damaged structures. After concluding that there had been no substantial change in the area since the 1994 area study that would support rezoning to R-3 Multi-Family Residential or a future land use change to High Density Residential, the Planning Department recommended to the Parish Council that the applications for rezoning be denied. Public hearings on the rezoning applications were held before the Planning Advisory Board ("PAB"), during which the property owner spoke in favor of his rezoning applications. The PAB recommended that all three applications be denied. On December 11, 2013, the Parish Council voted unanimously to deny TTC's applications for rezoning of the three properties.

TTC sought judicial review of the Parish Council's decisions to deny its rezoning applications by filing a Petition for Writ of Certiorari in the 24th Judicial District Court, wherein it argued that the Parish Council had acted arbitrarily and capriciously in denying TTC's applications for rezoning because similar applications in the neighborhood had been granted. TTC further argued that the Parish Council's actions were in retaliation for TTC having prevailed in other judicial proceedings concerning the property at 2616 Destrehan Avenue.

On November 2, 2016, the matter was heard in a one-day bench trial. After taking the matter under advisement, on January 31, 2017, the trial court issued judgment affirming the Parish Council's motions to deny TTC's applications to rezone its properties and denying TTC's Petition for Writ of Certiorari of the Parish Council's Decision. In its reasons for judgment, the trial court found that the Parish Council did not arbitrarily and capriciously deny TTC's applications.

On appeal, TTC raises the following assignments of error:

1) The Parish Council's denial of TTC's application was arbitrary and capricious;
2) The Parish Council's decision does not promote public health, safety, or general welfare;
3) The Parish Council's decision is essentially an impermissible reverse spot zoning that lacks any rational basis;
4) The Planning Department failed to comply with the planning procedure, thereby preventing the Parish Council from receiving all necessary information to consider for its decision.

We address these assignments of error in our discussion below.

DISCUSSION

Our discussion begins with TTC's third assignment of error, that the denial of the rezoning applications creates impermissible "reverse spot zoning" for these three parcels. This Court has previously stated, "[a] city [or parish] purporting to act under its police powers cannot create in a large area of property zoned in one classification an island of one parcel of land relegated to another zoning classification when no rational reason exists for such a separate distinction." Jenniskens v. Par. of Jefferson , 06-252 (La. App. 5 Cir. 10/17/06), 940 So.2d 209 (citing Four States Realty Co., Inc. v. City of Baton Rouge , 309 So.2d 659, 672 (La. 1974) ). All parties acknowledge that the Woodmere neighborhood where the parcels are located has been zoned R-1A since 1994, and that the parcels themselves are currently zoned R-1A. The Parish Council's decision to deny the requests to rezone the parcels from R-1A to R3 is not "reverse spot zoning." To the contrary, a decision by the Parish Council to approve TTC's applications to rezone these three parcels R-3, while the neighboring parcels remain R1-A, would constitute impermissible spot zoning unless a rational basis for such a distinction could be shown. We therefore disagree with TTC's contention that denial of its rezoning applications creates impermissible "reverse spot zoning."

We next look to the applicable standard of review, which is established by this Court's recent decision in Shaw v. Jefferson Par. , 15-453 (La. App. 5 Cir. 2/24/16), 186 So.3d 1181, 1184-85, wherein this Court stated:

The authority to enact zoning regulations flows from the police power of each governmental body. Therefore, a prima facie presumption of validity attaches to zoning board actions ... In a zoning dispute, the petitioner bears the heavy burden of proving that the action taken by the Parish Council in denying the application for a zoning change was arbitrary and capricious. On appellate review, the court's inquiry is limited to the reasonableness of the Council's decision to deny the request for rezoning; it does not consider whether the district court manifestly erred in its findings. (Citations omitted)

TTC argues that the Parish Council acted arbitrarily and capriciously because, between 2009 and 2012, it had approved four similar applications to rezone four-plex units in the same neighborhood from R-1A single family to R3 multifamily. Like the rezoning applications submitted by TTC, these prior four applications were reviewed by the Parish Planning Department, which produced Zoning/Land Use Reports that recommended that the Parish Council deny the applications. Dr. Teresa Wilkinson, the Planning Director for Jefferson Parish, testified as to the technical basis for the recommended denials, including the difference in density between R1-A and R-3, as well as lot area per family and the viability of single-family homes in the area. She further testified that there was no technical difference between the prior four applications and TTC's applications. TTC also points out additional similarities between the prior four applications and its applications, including that there was no public opposition noted at the public hearings on any of the applications.

While there are many similarities between the prior four applications, which were approved by the Parish Council, and TTC's applications, which were denied, there is however, a significant distinction: the PAB recommended approval of the prior four applications, but recommended denial of TTC's applications.

The PAB is a seven member advisory board empowered under the Parish Charter to review all land use issues that affect the present and future use of land in the unincorporated areas of Jefferson Parish. A Member of the board must be a resident, a property owner, and a qualified voter in the Parish of Jefferson who has been appointed by the Jefferson Parish Council. The PAB's primary function is to provide public input on zoning matters including land designation, land division/consolidation, and regulations. To that end, the PAB holds public meetings on zoning applications before making recommendations to the Parish Council.

Mr. Thomas Scrubbs, the appointed member of the PAB representing the district and Woodmere neighborhood where TTC's parcels are located, testified at the trial of this matter. He was the appointed representative at the time TTC's applications for rezoning were heard. He testified that he was familiar with the Woodmere Subdivision and that he attended meetings of the neighborhood association. At those meetings he heard residents of the neighborhood express concern about four-plexes in the area that weren't being kept up and concerns about the escalation in crime. Based on this public sentiment, Mr. Scrubbs recommended to the Parish Council that TTC's applications be denied.

While there is very little evidence in the record of the Parish Council's reasoning behind denying TTC's applications, the evidence presented does show that it received the recommendations of both the Planning Department and the PAB that TTC's applications be denied. We agree with the trial court that, in light of the evidence presented, the Parish Council acted reasonably in denying TTC's rezoning applications, and that TTC has been unable to overcome the presumption that the Parish Council's zoning decisions regarding these three properties are reasonably related to the health, welfare, and safety of the public.

Regarding TTC's fourth assignment of error, that the Zoning/Land Use Reports submitted to the Council for TTC's rezoning requests were deficient because they lacked written findings that TTC's applications are inconsistent with the Comprehensive Plan (findings that were included in the Zoning/Land Use Reports for the prior four rezoning applications that were approved), we find this assignment of error lacks merit. The Zoning/Land Use Reports contained a thorough, technical analysis of each rezoning request as well as an ultimate recommendation of action based on that analysis, which was more than sufficient information on which the Parish Council could base its decisions to deny the requests.

CONCLUSION

Having found that the Parish Council's decisions to deny TTC's applications for rezoning of these three properties were not arbitrary and capricious, we affirm the judgment of the trial court.

AFFIRMED

      It's unclear from the record exactly when the buildings on each of the properties became vacant. Appellants claim it was sometime in 2011 or 2012. Neither party disputes that the properties were vacant for at least a year, or long enough for their legally non-conforming uses to terminate.

      See TTC Props. v. Par. of Jefferson , 14-2 (La. App. 5 Cir. 5/21/14), 142 So.3d 176.

      Mr. Todd Cantrall, a former New Orleans resident and the co-owner of TTC, testified that it was an increase in crime and vandalism which caused him to board up the properties.


author: CHEHARDY, C.J.

text:
    Javier OCAMPO and Dennis Ordonez v. Nicole MARONGE
    NO. 17-CA-403
    Court of Appeal of Louisiana, Fifth Circuit.
    December 27, 2017
    COUNSEL FOR PLAINTIFF/APPELLANT, JAVIER OCAMPO AND DENNIS ORDONEZ, Luz M. Molina, Andrea M. Agee, Ridge Miguez
    COUNSEL FOR DEFENDANT/APPELLEE, NICOLE MARONGE, Erin A. Fisher
    Panel composed of Judges Susan M. Chehardy, Stephen J. Windhorst and Marion F. Edwards, Judge Pro Tempore.
   CHEHARDY, C.J.

Plaintiffs, Javier Ocampo and Dennis Ordoñez, appeal the 24th Judicial District Court's judgments of April 28, 2016 and January 23, 2017. For the reasons that follow, we affirm the judgment of April 28, 2016, amend in part the judgment of January 23, 2017, and affirm that judgment as amended.

FACTUAL AND PROCEDURAL HISTORY

Nicole Maronge is the sole owner and manager of La Maison Renovations, LLC. On February 17, 2014, La Maison contracted with Truly Noble Services, Inc. to perform a renovation on a residential property in Napoleonville, Louisiana. Seeking laborers, on February 21, 2014, Ms. Maronge sent a text message to Dennis Ordoñez, asking if he and his friend, Javier Ocampo, were interested in some painting work, explaining that she needed three laborers to paint at the Napoleonville property. Mr. Ordoñez and Mr. Ocampo had done work for Ms. Maronge in the past and agreed to do this job.

Plaintiffs arrived to the jobsite on Tuesday, February 25, 2014, where Ms. Maronge informed them of their tasks and advised them that the job needed to be completed by Friday, February 28. At trial, however, both Mr. Ordoñez and Mr. Ocampo testified that they were not informed of a deadline. A discussion was held later that day via text messages regarding plaintiffs' compensation. Ms. Maronge offered $15 per hour and plaintiffs countered with $17 per hour. Ms. Maronge agreed to pay for the cost of plaintiffs' gasoline, but there was no further discussion regarding the hourly rate. At trial, Ms. Maronge testified that she believed the agreement was $15 per hour plus the cost of gas, while plaintiffs explained they thought they would be paid $17 per hour plus the cost of gas.

Ms. Maronge supplied materials, including sheetrock, paint, primer, caulk, tape, spackling, and other similar items. Plaintiffs supplied their own tools, such as brushes, rollers, buckets, and drop cloths. Ms. Maronge provided a ladder.

Plaintiffs explained the job was more than just painting. They ripped up a wood floor in the house on the first day and continued with demolition work in the garage on the second day. They did not start painting until Thursday. By the end of Friday, they were not finished and informed Ms. Maronge that they could finish by Sunday, March 2 if they brought in a third guy. She agreed. With this additional help, plaintiffs worked over the weekend, and when they left on Sunday, only the trim remained to be painted. They were on their way back to the job on Monday but did not make it because of car trouble. This forced Ms. Maronge to hire other laborers to finish the job.

On Tuesday, March 4, Mr. Ordoñez sent Ms. Maronge a text message asking to be paid. In a message on Friday, March 7, she responded that she could not pay them until she was paid by Truly Noble.

After repeated failed attempts to get paid, on May 1, 2014, plaintiffs, with the assistance of the Loyola Law Clinic, sent a demand letter to Ms. Maronge, each seeking payment for 51 hours worked at $17 per hour. Still unable to resolve the dispute, on April 1, 2015, plaintiffs filed a "Rule to Show Cause Why Wages Should be Paid" in the 24th Judicial District Court pursuant to the Louisiana Wage Payment Act, La. R.S. 23:631, et seq. In this pleading, plaintiffs alleged that each had worked a total of 62 hours and were entitled to $17 per hour. In addition to unpaid wages, they also sought penalties and attorneys' fees under the law. In Ms. Maronge's answer, she maintained that each plaintiff had worked a total of 45 hours at a rate of $15 per hour.

After discovery, on December 20, 2015, plaintiffs filed a motion for partial summary judgment, seeking a finding as a matter of law that plaintiffs were employees of Ms. Maronge, and not independent contractors.

Meanwhile, on March 2, 2016, Ms. Maronge filed a "Motion to Place Funds in the Registry of the Court," in which she asserted that she had finally received payment from Truly Noble in connection with the work performed at the Napoleonville property. She explained that she had attempted to pay each plaintiff $867, accounting for plaintiffs' claims of unpaid wages for 51 hours of work at $17 per hour. Plaintiffs rejected this offer and Ms. Maronge deposited $1,734 in the registry of the court to be released upon final judgment.

After a March 28, 2016 hearing on plaintiffs' motion for partial summary judgment, the court issued its judgment on April 28, 2016 denying plaintiffs' motion. The matter proceeded to trial on January 4, 2017. The court issued its judgment on January 23, 2017, finding plaintiffs to be independent contractors and awarding them $1,734, plus interest from date of judicial demand, all costs of the proceedings, and attorneys' fees. The court's written reasons followed on February 10, 2017. Plaintiffs' appeal timely followed.

DISCUSSION

On appeal, plaintiffs assign four errors: (1) the district court erred in its March 28, 2016 denial of plaintiffs' motion for partial summary judgment; (2) the district court erred in its January 23, 2017 judgment by finding plaintiffs independent contractors; (3) the district court erred in addressing the issue of penalty wages; and (4) the district court erred in finding plaintiffs were entitled to attorneys' fees.

Assignment of Error One

In plaintiffs' first assignment of error, they argue that the district court erred in denying their motion for partial summary judgment, in which they alleged there were no genuine issues of material fact as to their status as employees, rather than independent contractors.

Our standard of review for a judgment granting or denying a motion for summary judgment is de novo. Boutin v. Roman Catholic Church of the Diocese of Baton Rouge , 2014-0313 (La. App. 5 Cir. 10/29/14), 164 So.3d 243, 246, writ denied , 14-2495 (La. 2/13/15), 159 So.3d 469. Under this standard, we use the same criteria as the trial court in determining if summary judgment is appropriate: whether there is a genuine issue as to material fact and whether the mover is entitled to judgment as a matter of law. See id.

Because a full trial on the merits was held after the district court's denial of plaintiffs' motion for partial summary judgment, in reviewing that ruling, we are not limited to the evidence presented in support of the motion, but consider the entire record. See Hopkins v. Am. Cyanamid Co. , 95-1088 (La. 1/16/96), 666 So.2d 615, 624.

"[A] motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law." La. C.C.P. art. 966(A)(3). If the mover will bear the burden of proof at trial on the issue before the court in the motion, the burden of showing there is no genuine issue of material fact remains with the mover. See La. C.C.P. art. 966(D)(1). "When a motion for summary judgment is made and supported ..., an adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided ..., must set forth specific facts showing that there is a genuine issue for trial." La. C.C.P. art. 967(B).

Here, plaintiffs are the movers who bear the burden of proving their employee status at trial. See Hillman v. Comm-Care, Inc. , 01-1140 (La. 1/15/02), 805 So.2d 1157, 1163 (holding the burden of proof is on the party seeking to establish an employer-employee relationship). Accordingly, in their motion for partial summary judgment, plaintiffs sought to prove that it was beyond dispute they were employees of Ms. Maronge, and not independent contractors.

The distinction between employee and independent contractor status is a factual determination to be decided on a case-by-case basis. Collins v. Home Depot, U.S.A., Inc. , 15-199 (La. App. 5 Cir. 12/9/15), 182 So.3d 324, 329-30. "[T]he term independent contractor connotes a freedom of action and choice with respect to the undertaking in question and a legal responsibility on the part of the contractor in case the agreement is not fulfilled in accordance with its covenants." Hickman v. S. Pac. Transp. Co. , 262 La. 102, 262 So.2d 385, 390 (1972). In determining whether the relationship of principal and independent contractor exists, the following factors are to be considered: (1) there is a valid contract between the parties; (2) the work being done is of an independent nature such that the contractor may employ non-exclusive means in accomplishing it; (3) the contract calls for specific piecework as a unit to be done according to the independent contractor's own methods, without being subject to the control and direction of the principal, except as to the result of the services to be rendered; (4) there is a specific price for the overall undertaking agreed upon; and (5) the duration of the work is for a specific time and not subject to termination or discontinuance at the will of either side without a corresponding liability for its breach. Collins , supra at 330.

Thus, where the essence of an independent contractor is freedom of action and choice, the essence of the employer-employee relationship, by contrast, is the employer's right to control the employee. See Hillman , supra at 1162. An employee "is an integral part of his employer's business and must submit to control of his conduct and time to his employer." Ozols v. Irving , 491 So.2d 719, 721 (La. App. 4 Cir. 1986).

Accordingly, to succeed on their motion for partial summary judgment, plaintiffs were required to prove there were no genuine issues of material fact on the crucial issue of the degree of Ms. Maronge's control over plaintiffs.

Ms. Maronge testified that plaintiffs set their own schedule each day and that she did not demand they work a certain number of hours per day. She informed them of the work that needed to be done, but did not direct them how to do it. Plaintiffs supplied their own tools and techniques in performing the work. Ms. Maronge was not present on the jobsite every day, but communicated with plaintiffs via cell phone. Some days they advised her when they arrived to the jobsite, when they left, and updated her with their progress. And on the days that she did visit the jobsite, she checked their progress and ensured their work was done in a professional manner.

In light of Ms. Maronge's testimony regarding the latitude she afforded plaintiffs in their day-to-day performance of their assigned tasks, we find there were genuine issues of material fact as to her degree of control over plaintiffs. We therefore conclude that the district court did not err in denying plaintiffs' motion for partial summary judgment on their employee status.

This assignment of error is without merit.

Assignment of Error Two

In plaintiffs' second assignment of error, they argue that the district court erred in its January 23, 2017 judgment that plaintiffs were independent contractors and not employees.

We review this factual finding under the manifest error-clearly wrong standard of review. Under this standard, an appellate court will not set aside a finding of fact in the absence of "manifest error" or unless it is "clearly wrong." Vince v. Koontz , 16-521 (La. App. 5 Cir. 2/8/17), 213 So.3d 448, 458, writ denied , 17-429 (La. 4/24/17), 221 So.3d 67. Thus, in order to reverse a trial court's factual findings, the appellate court must: (1) find from the record that a reasonable factual basis does not exist for the finding of the trial court, and (2) determine that the record establishes the finding is clearly wrong or manifestly erroneous. Id.

The factual determination of whether plaintiffs are employees or independent contractors is guided by consideration of the aforementioned five factors. See Collins , supra. We consider each in turn.

(1) Contract

A contract is formed by the consent of the parties established through offer and acceptance. Read v. Willwoods Cmty. , 14-1475, (La. 3/17/15), 165 So.3d 883, 887. Thus, an enforceable contract requires a meeting of the minds. Id. Unless the law requires a certain formality, offer and acceptance can be made orally. Id.

Because the alleged oral contract in this case exceeds five hundred dollars, La. C.C. art. 1846 requires that the contract be proven by the testimony of "one witness and other corroborating circumstances." Read , supra at 887-888. The plaintiff himself may serve as the witness to establish the existence of the oral contract. Id. at 888. The "other corroborating circumstances" need only be general in nature; independent proof of every detail of the agreement is not required. Id. But, the other corroboration must come from a source other than the plaintiff. Id.

The existence or non-existence of a contract is a question of fact, and the trial court's determination of this issue will not be disturbed unless manifestly erroneous or clearly wrong. Read , supra. Similarly, the issue of whether there were corroborating circumstances sufficient to establish an oral contract is a question of fact. Id.

Here, the testimony of plaintiffs and Ms. Maronge, as well as the transcript of the text messages, established that plaintiffs agreed to work for Ms. Maronge for a price, though there was conflicting testimony as to what that price was. In making a credibility determination and resolving that conflicting testimony, the district court was not manifestly erroneous or clearly wrong in finding that an oral contract existed between the parties.

(2) Non-Exclusive Means

The evidence at trial established that besides being provided with materials (e.g. , paint, sheetrock, etc.) and a ladder, plaintiffs supplied their own tools and employed their own techniques in performing the work. They were not directed to perform the work by any means exclusive to Ms. Maronge or La Maison. The district court was not manifestly erroneous or clearly wrong in finding that plaintiffs employed non-exclusive means in accomplishing the work.

(3) Control

As discussed above in the first assignment of error, the evidence at trial established that Ms. Maronge exercised minimal control over plaintiffs in the performance of their tasks. Ms. Maronge did not dictate their hours worked per day, nor did she control or direct plaintiffs in their method of performing the work. She merely advised them of the work that needed to be done and plaintiffs utilized their own discretion in completing the work. Accordingly, the district court was not manifestly erroneous or clearly wrong in finding that plaintiffs were not subject to a degree of control by Ms. Maronge sufficient to establish an employer-employee relationship.

(4) Price

As mentioned above, there was conflicting testimony at trial as to price. The testimony established that Ms. Maronge offered $15 per hour and plaintiffs' countered with $17 per hour. Ms. Maronge agreed to pay for the cost of plaintiffs' gasoline, but there was no further discussion regarding the hourly rate. Ms. Maronge testified that she believed the agreement was $15 per hour plus the cost of gas, while plaintiffs testified they thought they would be paid $17 per hour plus the cost of gas. The district court was not manifestly erroneous or clearly wrong in resolving this conflicting testimony by finding that the parties agreed to $15 per hour plus the cost of gas.

(5) Duration

In light of Ms. Maronge's testimony that she advised plaintiffs the work was subject to a deadline, the district court was not manifestly erroneous or clearly wrong in finding that the work was for a specific duration.

Upon consideration of the foregoing factors and the evidence adduced at trial, we find that the district court was not manifestly erroneous or clearly wrong in classifying plaintiffs as independent contractors. This assignment of error is without merit.

Assignment of Error Three

In plaintiffs' third assignment of error, they seem to argue that the district court erred in failing to award them penalty wages under La. R.S. 23:632.

La. R.S. 23:632 provides for the assessment of penalties against an employer for failure to comply with the provisions of La. R.S. 23:631 pertaining to payment of wages due at the time of discharge or termination of employment. Leftwich v. New Orleans Weddings Magazine, Inc. , 14-547 (La. App. 5 Cir. 11/25/14), 165 So.3d 916, 923. In order to recover penalties and attorneys' fees under La. R.S. 23:632, the party seeking the penalties and attorneys' fees has the burden of proving his status as an employee, as opposed to an independent contractor. See Hulbert v. Democratic State Cent. Comm. of La. , 10-1910 (La. App. 1 Cir. 6/10/11), 68 So.3d 667, 670. Plaintiffs failed to prove their status as employees and are therefore not entitled to penalties under La. R.S. 23:632. The district court did not err in declining to award plaintiffs penalties under La. R.S. 23:632.

This assignment of error is without merit.

Assignment of Error Four

In their brief to this Court, plaintiffs assign as error the district court's award of attorneys' fees, but in the argument section of the same brief, plaintiffs contend they are entitled to attorneys' fees. Notwithstanding this apparent contradiction, we find the district court erred in awarding plaintiffs attorneys' fees.

In Louisiana, the prevailing party may not recover attorneys' fees except where authorized by contract or statute. St. Blanc v. Stabile , 12-677 (La. App. 5 Cir. 4/24/13), 114 So.3d 1158, 1159, writ denied , 13-1185 (La. 8/30/13), 120 So.3d 270. Attorneys' fees are recoverable under La. R.S. 23:632 if the party seeking the attorneys' fees proves employee status. See Hulbert , supra. Plaintiffs failed to prove their employee status and are therefore not entitled to attorneys' fees under La. R.S. 23:632. Absent any other applicable statutory or contractual authorization for attorneys' fees in this case, we find the district court erred in awarding plaintiffs attorneys' fees. We therefore amend in part the district court's January 23, 2017 judgment to delete the award of attorneys' fees and affirm that judgment as amended.

DECREE

For the foregoing reasons, the district court's judgment of April 28, 2016 is affirmed. The district court's judgment of January 23, 2017 is amended in part to delete the award of attorneys' fees and that judgment is affirmed as amended.

AMENDED IN PART; AFFIRMED AS AMENDED

      Ms. Maronge, who speaks very little Spanish, utilized a Google translation app to communicate with plaintiffs, who speak very little English.


author: MURPHY, J.

text:
    Joyle PERTUIT v. The LOUISIANA SCHOOL EMPLOYEES RETIREMENT SYSTEM and the Jefferson Parish School Board
    NO. 17-CA-393
    Court of Appeal of Louisiana, Fifth Circuit.
    December 27, 2017
    COUNSEL FOR PLAINTIFF/APPELLANT, JOYLE PERTUIT, James F. Willeford, Reagan L. Toledano, New Orleans
    COUNSEL FOR DEFENDANT/APPELLEE, JEFFERSON PARISH SCHOOL BOARD, Michael G. Fanning, Glenn D. Price, Jr., Gretna
    Panel composed of Judges Robert M. Murphy, Stephen J. Windhorst, and Hans J. Liljeberg
   MURPHY, J.

This case arises from a dispute between plaintiff, Joyle Pertuit, and the Jefferson Parish School Board (the "JPSB") concerning the computation of retirement benefits for Jefferson Parish school bus drivers under La. R.S. 17:495 and La. R.S. 17:497. The dispute centers on the JPSB's classification of "operational pay" and whether that portion of a school bus driver's "operational pay" that exceeds his actual dollar-for-dollar operating expenses should be reclassified as "earnable compensation" for purposes of calculating a school bus operator's pension contributions. For the following reasons, we affirm the trial court's grant of summary judgment in favor of the JPSB, thereby dismissing Mr. Pertuit's class action suit, with prejudice, finding that no genuine issues of material fact exist and that, as a matter of law, the JPSB's operational pay policy is in compliance with the applicable statutes.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

There are no genuine issues of material fact in dispute. Mr. Pertuit, a retired school bus operator, was employed by the JPSB for over thirty years, and was the owner and operator of the bus he drove. During his employment, as required by La. R.S. 17:496 and La. R.S. 17:497, Mr. Pertuit received two forms of compensation: (1) a "salary," which compensated him for the labor of driving his bus, and was based on his years of service driving the school bus and his years of experience; and (2) "operational pay," which was a cents-per-mile rate of compensation for reimbursement of expenses associated with his owning and operating the school bus, and was based on the number of miles he drove.

As required by La. R.S. 17:497, the JPSB utilizes the "standard mileage rate method" as a means of reimbursing its school bus operators, such as Mr. Pertuit, for their operational expenses. The JPSB uses two sub-classifications of operational pay: state operational pay, which is funded by the state; and parish operational pay, which is locally funded. The JPSB classified payments made to Mr. Pertuit for the first 50 miles of his daily route as "state operational pay," and payments made to him for every mile driven over 50 miles on his daily route as "parish operational pay." Mr. Pertuit's state operational pay and his parish operational pay were identified separately on his payroll statements and were paid separately from his salary as mandated by La. R.S. 17:496(F). The total amount of operational pay received by Mr. Pertuit for any given payroll period was equal to a combination of his state operational pay plus his parish operational pay. It is undisputed that the total amount of operational pay that Mr. Pertuit received each payroll period exceeded the minimum rate schedule for compensation of operational expenses set forth in La. R.S. 17:497.

As a school bus operator for the JPSB, Mr. Pertuit was a member of the Louisiana School Employees Retirement System ("LSERS"). For each pay period during Mr. Pertuit's employment, the JPSB deducted from his salary an amount equal to Mr. Pertuit's required contributions to the retirement system. LSERS retirement benefits are calculated based on an employee's "earnable compensation," which is defined by La. R.S. 11:1002(12), as follows:

"Earnable compensation" means the full amount earned by an employee for a given pay period. Earnable compensation shall not include operating expenses, the cost of any insurance paid by the employer, or any allowance for expenses authorized and incurred as an incident of employment, nor payments in lieu of unused sick or annual leave. Earnable compensation shall include pay received by school bus drivers for school-related extracurricular activities.

For years, the JPSB reported only a school bus operator's salary to LSERS. However, following its increase of the school bus operators' salary and operational pay, in September 2007 the JPSB began reporting the bus drivers' total operational pay as "earnable compensation" and made pension contributions to LSERS based on this amount. In December 2007, LSERS informed the JPSB that its inclusion of the bus drivers' operational pay as a part of their "earnable compensation" was in violation of La. R.S. 11:1002(12), which specifically excludes any form of operating expenses. Following notification of its error by LSERS, the JPSB advised Mr. Pertuit (as well as all other JPSB school bus operators), that effective January 15, 2008, his operational would be no longer be reported to LSERS as "earnable compensation," and, consequently, no portion of his operational pay would be considered in the calculation of his retirement benefits. From January 2008 through the date of his retirement on October 1, 2012, neither Mr. Pertuit's state operational pay nor his parish operational pay were included in the computation of his "earnable compensation" for retirement contribution purposes; the JPSB has made pension contributions to all of its school bus operators solely on the amount of salary paid.

On May 29, 2015, Mr. Pertuit filed the instant class action law suit against the JPSB and LSERS (on behalf of himself and "all other similarly situated persons"), seeking a declaratory judgment in favor of school bus operators that pension contributions are due on all payments made by the JPSB to school bus operators that exceeded the fixed payment schedule set forth in La. R.S. 17:497. Mr. Pertuit avers that the JPSB pays its school bus operators operational pay that exceeds the actual amount needed to compensate operators for the expenses associated with owning and operating their buses. According to Mr. Pertuit, the amount of operational pay that exceeds the operators' actual expenses is, in actuality, "salary" upon which retirement benefits should be calculated. Consequently, Mr. Pertuit's suit seeks a recalculation of his retirement benefits which include his parish operational pay as "salary" and part of his "earnable compensation" for retirement purposes.

In response, the JPSB filed a motion for summary judgment seeking dismissal of Mr. Pertuit's request for declaratory relief on the basis that, pursuant to La. R.S. 17:81(U), the JPSB is vested with the sole authority to "prescribe the duties and fix the salaries" of its employees, including the salaries of its school bus operators. Citing Louisiana Assoc. of Educators v. St. Tammany Parish School Bd ., 430 So.2d 1144, 1149 (La. App. 1 Cir. 1983), the JPSB argued that any decisions it makes pursuant to this statutory authority are presumed by law to be correct and, unless in conflict with or in derogation of applicable state law, a district court lacks a legal basis to interfere with the JPSB's administrative and executive decisions to fix and classify the compensation it pays to its employees. The JPSB further argued that because its "operational pay" policy in the instant case complies with the applicable provisions of La. R.S. 17:497, which governs operational pay for owners/operators of school buses, the trial court lacked a legal basis upon which to grant the declaratory relief sought by Mr. Pertuit or to otherwise set aside or interfere with the JPSB's decisions concerning how it fixes and classifies the compensation it pays to its school bus operators. Additionally, the JPSB argued that La. R.S. 17:495 clearly states that the schedule provided in La. R.S. 17:497 contains the minimum amount prescribed for a school bus operator's operational pay, and thus, the JPSB has opted to pay more than the minimum amount required.

In opposition, Mr. Pertuit averred that, pursuant to La. R.S. 11:1002(12), the JPSB is required to make pension contributions on the full amount paid to a school bus operator less any paid compensation for "operating expenses" or any allowances for expenses authorized and incurred. Mr. Pertuit argued that La. R.S. 17:497 mandates the payment of compensation to school bus operators under a schedule of daily fixed rates per mile for a minimum of 180 days (i.e. , the school year), and does not authorize the school board to alter the fixed mileage rate set forth in the statute. Mr. Pertuit claimed that, in this case, the JPSB unlawfully altered and arbitrarily increased the mileage rate for payment of operational expenses by $.55 per mile over the per-mile amount fixed by La. R.S. 17:497. Mr.

Pertuit argued that it was unlawful for the JPSB to arbitrarily classify or label the payments that exceeded the fixed rates set forth in La. R.S. 17:497 (or which exceeded the actual operating expenses incurred by bus drivers), as payment of "operating expenses" solely for purposes of avoiding making pension contributions on that amount, since only "operating expenses" are excluded from earnable compensation under La. R.S. 11:1001(12). According to Mr. Pertuit, this method of calculating operational pay constitutes a poorly-veiled attempt to circumvent state law and deprives Jefferson Parish school bus operators of the full amount of their earned retirement pay.

The JPSB's motion for summary judgment came for hearing on March 20, 2017. Finding that no genuine issue of material fact existed, the trial judge rendered judgment granting summary judgment in favor of the JPSB and against Mr. Pertuit dismissing his claims, with prejudice. On March 29, 2017, the trial court issued written reasons for judgment.

It is from the March 20, 2017 judgment that Mr. Pertuit timely filed the instant appeal.

ASSIGNMENTS OF ERROR

Mr. Pertuit avers the trial court erred in the following respects: (1) in interpreting that, pursuant to the provisions of La. R.S. 11:1002(12), La. R.S. 17:496 E and F, La. R.S. 17:497, and La. R.S. 17:498, "operational pay" is synonymous with "operational expenses;" (2) in finding that all compensation paid to school bus operators on a cents-per-mile basis pursuant to La. R.S. 17:497 is for reimbursement of expenses incurred to operate the bus and, as such, are exempt from "earnable compensation" for purposes of calculating retirement benefits, when the compensation exceeds the operator's actual operating expenses; (3) in failing to find that the cents-per-mile rate of compensation set forth in La. R.S. 17:497 prescribes a fixed rate that cannot be exceeded or subsidized by local school boards; and (4) in failing to find that the applicable statutes (namely, La. R.S. 11:1002(12), La. R.S. 17:495 though La. R.S. 17:498 ) are ambiguous because they can be interpreted to require compensation be paid to school bus operators not only as reimbursement of their actual operating expenses, but also as remuneration for their services of driving the bus.

STANDARD OF REVIEW

A motion for summary judgment is a procedural device used when there is no genuine issue of material fact for all of part of the relief prayed for by a litigant. Dunn v. City of Kenner , 15-1175, p. 15 (La. 1/27/16), 187 So.3d 404, 412. A motion for summary judgment is reviewed on appeal de novo , with the appellate court using the same criteria that govern the trial court's determination of whether summary judgment is appropriate; i.e. , whether there is any genuine issue of material fact, and whether the moving party is entitled to judgment as a matter of law. Reynolds v. Bordelon , 14-2371, p. 3 (La. 6/30/15), 172 So.3d 607, 610.

DISCUSSION

By law, school bus operators in Louisiana must receive two forms of compensation: (1) a salary for the services provided in operating the bus pursuant to La. R.S. 17:496 ; and (2) compensation for reimbursement of expenses attendant to owning and operating the school bus pursuant to La. R.S. 17:497. Louisiana law mandates that contributions to a school bus operator's pension plan shall be based solely on his total "earnable compensation" as defined in La. R.S. 11:1002(12) as

"the full amount earned by an [operator]" and "shall not include operating expenses." La. R.S. 11:1002(12). Consequently, payments made by local school boards to school bus operators as compensation for reimbursement of operating expenses are not included as part of their "earnable compensation" for retirement purposes. Id.

In his first two assignments of error, Mr. Pertuit avers that the trial court erred in its statutory interpretation of La. R.S. 11:1002(12) and La. R.S. 17:496, La. R.S. 17:497, and La. R.S. 17:498, by finding that "operational pay" is the statutory equivalent to "operational expenses," and in finding that all compensation paid by the JPSB to its school bus operators, which the JPSB categorized as "operational pay," was for reimbursement of operational expenses and, as such, excluded from the calculation of their pension contributions. Mr. Pertuit argues that "operational expenses" and "operational pay" are not synonymous, and that the JPSB's arbitrary classification of payments made to operators that exceed the actual expenses they incur to operate their buses as "operating expenses," and its failure to pay pension contributions on this excess amount, is in violation of the applicable statutes and denies retired operators their lawful pensions. Moreover, Mr. Pertuit posits that, when read in pari materia , La. R.S. 17:496 and La. R.S. 14:497 require that a school bus operator's operational pay be determined by using an actual expense method of reimbursement and that any portion of an operator's operational pay exceeding his actual operating expenses must be reclassified as "salary," or compensation for additional labor, and included in the computation of his "earnable compensation" pursuant to La. R.S. 11:1002(12) for retirement contribution purposes.

"Legislation is the solemn expression of the legislative will; thus, the interpretation of legislation is primarily the search for legislative intent." Dunn v. City of Kenner , 15-1175, p. 10, 187 So.3d at 409. See also

La. R.S. 24:177(B)(1) ("The text of a law is the best evidence of legislative intent."). When a law is clear and unambiguous, and its application does not lead to absurd consequences, it shall be applied as written, with no further interpretation made in search of the legislative intent. La. C.C. art. 9 ; La. R.S. 1:4. The meaning and intent of a law must be determined by considering the law in its entirety and all other laws on the same subject matter and by placing a construction on the provision in question that is consistent with the express terms of the law and with the obvious intent of the legislature in enacting it. Allen v. Allen , 13-2778, p. 11 (La. 5/7/14), 145 So.3d 341, 346. Courts should give effect to all parts of a statute and, if possible, should not give a statute an interpretation that makes any part superfluous or meaningless. McLane Southern, Inc. v. Bridges , 11-1141, p. 10 (La. 1/24/12), 84 So.3d 479, 483. The language of the statute itself is the starting point for the interpretation of any statute. Dunn , 15-1175, p. 10, 187 So.3d at 410.

Louisiana Revised Statutes 17:495 through 17:497 were enacted by the Louisiana Legislature in 1954 through the introduction of House Bill 718, Act 74 (hereinafter, the "Act"). Pursuant to the express terms of the Act, its purpose was to "authorize and direct the Louisiana State Board of Education to establish and maintain a minimum salary schedule to be paid to school bus drivers in the ... State of Louisiana[,] and to establish and maintain a minimum rate of compensation to be paid operators for the operation of school buses." Pursuant to Section 3 of the Act, the Legislature mandated that the minimum rate of compensation for the expenses associated with owning and operating a school bus be calculated in accordance with the cents-per-mile schedule set forth in the Act, which ultimately was codified in La. R.S. 17:497. Since its enactment in 1954, La. R.S. 17:497 has been amended several times to provide for an increase in the cents-per-mile rate schedule set forth therein, however, the rate schedule has remained the same since 1986.

Based upon our de novo review of the legislative history of the Act, we find nothing therein suggesting that the Legislature intended for school boards to have to use an actual cost, or dollar-for-dollar, method of reimbursement when calculating the minimum rate of compensation for a school bus operator's operational expenses, as posited by Mr. Pertuit, rather than utilizing the cents-per-mile operational schedule as a basis for determining the minimum amounts prescribed for an operator's operational pay. In support of his argument that the JPSB must use an actual cost method of reimbursement based upon the actual expenses incurred by an operator to operate his bus, Mr. Pertuit relies on the language set forth in La. R.S. 17:486(E), which states, in pertinent part, that "[f]or the purpose of receiving state reimbursement for actual expenses under the provisions of this Section ..." (Emphasis added.) Mr. Pertuit's reliance on this language, however, is misplaced. La. R.S. 17:496 governs "minimum salaries " to be paid to school bus operators. It does not govern the minimum rate of compensation for operational expenses; La. R.S. 17:497 does. The precise wording of Section F of La. R.S. 17:496 makes this clear. Specifically, La. R.S. 17:496(F) provides that "[t]he minimum salaries established in this Section shall be paid separately from any reimbursement for the minimum rate of operation provided in R.S. 17:497 ." (Emphasis supplied.)

Moreover, when Section E is read in its entirety, it is evident that this section does not in any way pertain to or address the minimum rate of operational pay for operators as set forth in La. R.S. 17:497. Instead, Section E concerns the right of a school board to receive reimbursement for the actual expenses it incurs in paying the minimum salaries of school bus operators that provide transportation to students with exceptionalities under the provisions of the Students with Exceptionalities statutes found in La. R.S. 17:1941 et seq. Further review of the legislative history of the Act reveals that Section E was not included in the original enactment of La. R.S. 17:496 ; it was added after the enactment of La. R.S. 17:1941 et seq. Therefore, we conclude that the reimbursement for actual expenses referred to in La. R.S. 17:496(E) relates solely to the reimbursement of the minimum salaries of operators transporting students with exceptionalities under La. R.S. 17:1941 et seq. , and is unrelated to the school board's calculation of a school bus operator's operational pay pursuant to La. R.S. 17:497.

Based upon our review of the legislative history of the Act, we disagree with Mr. Pertuit's argument that the trial court erroneously misinterpreted and misapplied the applicable statutes in this matter. Moreover, we find that the statutes at issue do not mandate that the JPSB calculate a school bus operator's operational pay by using a dollar-for-dollar actual expense method of reimbursement. Rather, the governing statute, La. R.S. 17:497, requires local school boards to utilize the cents-per-mile operational schedule set forth therein as a basis for determining an operator's operational pay. Further, in accordance with La. R.S. 11:1002(12), which governs which payments are to be included as earnable compensation for retirement purposes, we find the JPSB properly excluded the operational pay payments made to its school bus operators, including Mr. Pertuit, when calculating their retirement benefits. Accordingly, we find Mr. Pertuit's first and second assignments of error are without merit.

In his third assignment of error, Mr. Pertuit avers the trial court erred in failing to find that La. R.S. 17:497's cents-per-mile rate of compensation schedule prescribes a fixed rate that cannot be exceeded or subsidized by local school boards. While Mr. Pertuit concedes that the JPSB subsidizes operators' operational pay with local funds that exceed the cents-per-mile rates provided for in La. R.S. 17:497, he contends that the JPSB is without authority to classify these subsidies, or payments which exceed the fixed rate schedule or actual expenses incurred, as payment for "operating expenses" in order to avoid making pension contributions and reducing operators' pension benefits. According to Mr. Pertuit, the subsidies paid by the JPSB that exceed the fixed rate schedule or which exceed an operator's actual operating expenses should be reclassified as additional "salary" and included in the calculation of earnable compensation for retirement purposes. We address this assignment of error in two parts: (1) whether the cents-per-mile rate of compensation schedule prescribes a fixed rate of compensation or establishes a minimum mileage rate, and (2) whether the JPSB's payment to operators in the form of subsidies, or "parish operational pay," that exceeds their actual dollar-for-dollar operating expenses must be included as earnable compensation for purposes of calculating pension contributions.

1. La. R.S. 17:497's Cents-per-mile Rate Schedule

The trial court determined that " La. R.S. 17:495 makes it clear that the schedule provided by La. R.S. 17:497 contains the minimum amounts prescribed for operational pay," and that the JPSB's decision to pay its school bus drivers more than the "bare minimum" set forth in La. R.S. 17:497 was not a violation of the statute. We agree.

The issue of whether the cents-per-mile rate schedule contained in La. R.S. 17:497 established a fixed rate schedule or is meant to be a minimum mileage rate schedule for local school boards to utilize as a template for calculating a driver's

"operational pay" was specifically addressed by the Louisiana Attorney General's Office in 2006 in La. Atty. Gen. Op. No. 05-0455 (2006); 2006 La. AG LEXIS 211. Therein, the Attorney General stated the following, in pertinent part:

La. R.S. 17:497 governs operational expenses of operators of buses. La. R.S. 17:497 sets forth a schedule setting the rate of compensation to be paid per mile driven ... The question presented is whether the rate schedule in La. R.S. 17:497 limits the compensation for operational expenses a bus driver receives to the amounts per mile provided in the schedule or if the schedule sets forth minimum rates.
* * * * * * *
Unlike La. R.S. 17:496, La. R.S.17:497 does not specifically provide that the rate schedule therein consists of minimum rates. However, reference to such rate schedule being a minimum schedule is found both in La. R.S. 17:495 and 17:496(F), which provide:
La. R.S. 17:495 Establishment of minimum salary schedules
The Louisiana State Board of Education is hereby authorized and directed to establish and maintain a minimum salary schedule to be paid school bus drivers in the public schools of the state of Louisiana and to maintain a minimum rate of compensation to be paid for the operation of school buses in the public school system of the state of Louisiana.
La. R.S. 17:496 Minimum Salaries
F. The minimum salaries established in this Section shall be paid separately from any reimbursement for the minimum rate of operation provided in La. R.S. 17:497.
* * * * * * *
When reading La. R.S. 17:495, 17:496, and 17:497 in reference to each other, we find that a conclusion that the rates set forth therein are minimum rates is reasonable.

We find the reasoned opinion of the Attorney General on this issue persuasive and determinate that the schedule provided by La. R.S. 17:497 contains the minimum amounts prescribed for operational pay rather than fixed amounts.

Additionally, pursuant to the statute's legislative history, the rate schedule in La. R.S. 17:497 was last amended thirty years ago in 1986. Thus, while the minimum mileage rates set forth therein may have been sufficient to cover an operator's operating expenses in 1986, it is unlikely that those same rates would cover the cost of operating, maintaining and repairing a school bus today as it is indisputable that operating expenses have increased, at least to some degree, over the past thirty years. This fact alone begs support for the contention that the Legislature did not intend for the rate schedule established in La. R.S. 17:497 to be a fixed schedule, but rather, intended it to be a minimum rate schedule to be used by school boards as a template for determining an operator's base operational pay that could thereafter be subsidized by using local funds. Accordingly, we affirm the trial court's finding that the JPSB's decision to pay its school bus drivers more cents-per-mile than the minimum mileage rate set forth in La. R.S. 17:497 was not a violation of the statute.

2. Operational Pay Exceeding the Minimum Rate Schedule

Mr. Pertuit argues that the Supreme Court's recent decision in Dunn v. City of Kenner , supra , supports his contention that the amount of operational pay that exceeds La. R.S. 17:497's minimum rate schedule and an operators' actual expenses must be classified as salary and included in the calculus of their "earnable compensation" for retirement purposes. We disagree.

In Dunn , Kenner City firefighters brought a class action suit seeking retroactive adjustments and corrections to the city's contributions to their pensions. Specifically, the Supreme Court analyzed whether four types of payments made to Kenner City firefighters (including educational incentive pay, seniority incentive pay, holiday pay, and acting pay), fell within the definition of "earnable compensation" for purposes of calculating their retirement benefits. In conducting the analysis, the Supreme Court's focus centered on whether any of these types of payments were remunerative or "earned" such that pension contributions by the City of Kenner would be due. It was determined that all four types of payments were remunerative by nature and, thus, were held to fall within the definition of "earnable compensation" for retirement purposes.

Based upon our de novo review, we find that the analysis required by the Supreme Court in Dunn is not required in the instant case and, thus, is distinguishable. In Dunn , because the Legislature's definition of a firefighter's "earned compensation" did not specifically include or exclude the types of incentive pay at issue, it was necessary for the Supreme Court to conduct an analysis of each of the incentive pays in order to determine whether any or all of them were remunerative in nature and, thus, constituted "earnable compensation" to firefighters for retirement purposes. In the case sub judice , it is clear from the plain wording of La. R.S. 11:1002(12) that the Legislature never intended for school bus operators' operational pay to be remunerative, which is why the Legislature specifically excluded operational expenses from the earnable compensation calculus for retirement contribution purposes.

Further, we are not persuaded by Mr. Pertuit's argument that operational pay to school bus operators that exceeds their actual operating expenses is the functional equivalent of salary and should be considered earnable compensation since it allegedly compensates operators for their additional time and labor in operating their buses (i.e. , is "earned"). First, our de novo review of the record reveals that during the course of this litigation, Mr. Pertuit conceded that his school bus operator's salary was based solely on his number of years of experience as a school bus operator and was unrelated to the number of miles he daily drove the bus.

Second, as previously stated, La. R.S. 17:497 requires school boards to utilize the standard mileage rate method as a means of reimbursing operators for their operating expenses. Had the Legislature desired for local school boards to utilize an actual expense, or dollar-for-dollar, method of reimbursement, it would have specifically stated so in the statute. It did not. Instead, we find the Legislature established a minimum mileage rate schedule to be used as a template for school boards to calculate an operator's operational pay. Moreover, had the Legislature desired to include any portion of an operators' operational pay within the definition of "earnable compensation" for purposes of calculating operators' pension contributions, it would have done so. It did not. The record reflects that such an amendment to La. R.S. 11:1002(12) (i.e. , to include both base pay and operational pay within the definition of an operator's "earnable compensation") was submitted in the 2001 Regular Session through H.B. No. 1529. The bill did not make it out of the House Retirement Committee that Session, and we have found no indication that such a measure has been reintroduced since that time. For the foregoing reasons, we find Mr. Pertuit's third assignment of error lacks merit.

In his final assignment of error, Mr. Pertuit avers that the statutory scheme regarding operational pay for school bus operators is ambiguous because (1) La. R.S. 11:1002(12) does not define the term "operating expenses," and (2) La. R.S. 17:497's use of the phrase "a rate of compensation for such operation" can be interpreted to provide compensation to operators both for their labor and services rendered in driving the bus and for reimbursement of operational expenses incurred to operate the bus. According to Mr. Pertuit, the more miles an operator drives the bus, the more time he spends working, and this additional time is reflected in the additional operational pay he receives on a cent-per-mile basis and, thus, this additional sum is "earned" compensation above an operator's base salary. For many of the reasons previously discussed, we disagree.

La. R.S. 17:496 governs minimum salaries for driving a bus. A school bus operator's salary is based on his years of experience driving a bus, not on the number of miles he drives. Thus, no matter how many miles an operator drives on his daily route, his salary will remain the same. La. R.S. 17:497 governs payment of an operator's operational pay, which, according to the plain language of the statute, is intended to compensate an operator for the expenses associated with operating the bus on a cents-per-mile basis and not for an operator's services of driving the bus. Moreover, Mr. Pertuit's argument ignores the reality that, regardless of whether the operational pay JPSB pays its operators is limited to the minimum rate set forth in the mileage rate schedule found in La. R.S. 17:497, the operator who drives the longest daily route is always going to receive more operational pay than the operator who drives a shorter daily route. Nonetheless, the pension benefits these two operators receive will still be the same because operational pay is excluded from an operator's earnable compensation for purposes of calculating retirement benefits. Whether this system is fair and equitable is not an issue before us to decide. Accordingly, determining that no ambiguity exists in the statutes governing this matter, we find Mr. Pertuit's fourth assignment of error to be without merit.

CONCLUSION

For the reasons set forth herein, we find that no genuine issue of material fact exists and that, as a matter of law, the statutory framework pertaining to school bus operators' salary and operational pay is unambiguous and that the JPSB's school bus operators' operational pay program complies with La. R.S. 17:495 through La. R.S. 17:497. Accordingly, we find there is no legal basis for this Court to interfere with the JPSB's authority to fix the and classify the salaries of its employees, including its decision concerning the payment and classification of operational pay for its school bus operators, including Mr. Pertuit. Therefore, we affirm the trial court's judgment granting the JPSB's motion for summary judgment and dismissing Mr. Pertuit's claims, with prejudice.

AFFIRMED.

      La. R.S. 17:495 authorizes and directs local school boards to establish and maintain a minimum salary schedule for payment to school bus operators and to maintain a minimum rate of compensation to be paid for the operation of their school busses. La. R.S. 17:497 provides for compensation for operational expenses incurred by school bus operators. Compensation for operational expenses "constitutes a reimbursement for expenses and is paid separately from the minimum salary set for such employees." La. Att. Gen. Op. No. 93-151 (1993); 1993 La. AG LEXIS 124. See also La. R.S. 17:496(E).

      La. R.S. 17:496 establishes minimum salaries to be paid to school bus operators. The JPSB supplements and subsidizes bus operators' salaries with local funds. La. R.S. 17:497, last amended in 1986, provides for compensation for operational expenses incurred by school bus operators based on the length of the bus and number of miles driven. Similar to bus operators' salaries, the JPSB supplements and subsidizes bus operators' operational pay with local funds.

      La. R.S. 17:496(F) mandates that a school bus operator's salary be paid separately from any reimbursement for the minimum rate of operational pay required by La. R.S. 17:497. La. R.S. 17:498 provides, in pertinent part, that "[w]here the operator of a school bus is the owner thereof, he shall be paid by voucher-check stating the amount of the minimum salary as set out in R.S. 17:496 and the full amount of reimbursement for operation as set out in R.S. 17:497."

      By utilizing the cents-per-mile method versus an actual expense method, the JPSB school bus operators are not required to submit receipts or proof of the actual operating expenses incurred for the operation of the school bus in order to receive "operational pay."

      Since 2006, the JPSB has provided the local subsidy in "parish operational pay," which is how the local subsidy is identified.

      In or about 2006, the JPSB approved a salary increase for its school bus operators. Additionally, the operators requested an increase in their operational pay as well. In response to the request, a committee of school bus operators, which included Mr. Pertuit, was formed to make recommendations to the JPSB regarding an operational pay increase. Thereafter, pursuant to the committee's recommendations, the JPSB agreed to supplement the state operational pay operators' received pursuant to the schedule set forth in La. R.S. 17:497 ($.7834 per mile) by paying operators "parish operational pay" consisting of $1.37 per mile ($00.55 per mile over the statute's required minimum) for every mile driven over 50 miles on their daily round trip routes. According to Mr. Pertuit, his daily route was over 100 miles.

      At the time of his retirement, Mr. Pertuit's annual salary was $29,800. Additionally, his state operational pay amounted to $7,050.00, which reflected the mileage rate for the first 50 miles Mr. Pertuit drove on his daily route. The parish operational pay he received was determined by the mileage rate applied to every mile driven over 50 miles on his daily route times the number of miles over 50 driven per day.

      According to the JPSB, and this fact has not been disputed by Mr. Pertuit, each school bus operator, including Mr. Pertuit, was refunded by the JPSB and LSERS that portion of his retirement contributions attributable to his operational pay and deducted from his pay checks between September 7, 2007 and January 14, 2008.

      According to Mr. Pertuit, this has created a situation whereby full-time operators earn the same pension as part-time operators, no matter the amount of time they work or the number of miles they drive. Part-time drivers who drive less than 50 miles per day are paid the same salary as full-time drivers that drive more than 50 miles per day and pension contributions are made only on the amount of salary paid.

      After filing suit, Mr. Pertuit filed a motion for partial summary judgment seeking, as a matter of law, the declaratory relief requested in his petition. Mr. Pertuit's motion has not yet been heard in the trial court.

      La. R.S. 17:81(U) provides, in pertinent part, that "[n]otwithstanding the provisions of this Section, a city, parish, and other local school board shall retain all authority given by law to such boards to prescribe the duties and fix the salaries of .... all employees of such boards, as applicable."

      In addition to the JPSB's motion for summary judgment, LSERS filed an exception arguing Mr. Pertuit had no cause of action against it for declaratory relief as it had no responsibility for how JPSB classified the compensation JPSB paid to its employees, for computing the employees' "earnable compensation," or making retirement contributions on behalf of JPSB employees.

      After the JPSB filed its motion for summary judgment, Mr. Pertuit filed a motion for class certification and to reset his partial motion for summary judgment. Originally, all motions and LSERS's exception were set for hearing on the same day, but the parties agreed to continue Mr. Pertuit's motions pending the outcome of the JPSB's motion for summary judgment.

      The LSERS' exception of no cause of action was also heard March 20, 2017, which the trial court granted. The correctness of that ruling by the trial court is not at issue on this appeal.

      Though Mr. Pertuit also contends the trial court erred in its finding that all compensation paid by the JPSB to its operators under an "operational pay system" (i.e. , a cents-per-mile or mileage rate compensation system) is more convenient to the JPSB because "it is more time and cost-effective to work from a fixed schedule than to calculate each [operator's] actual expenses," he does not address this assignment of error in his brief other than to aver that "there is no record evidence supporting such finding," and that, "even if correct, "the convenience to the school board does not justify the loss of pension benefits ..." Assignments of error not briefed on appeal are considered abandoned or waived. See Uniform Rules-La. Ct. of App. R. 2-12.4, which provides, in pertinent part, that "[a]ll specifications or assignments of error must be briefed. The court may consider as abandoned any specification or assignment of error which has not been briefed."

      Louisiana Revised Statute 17:496(E) states:
      For the purpose of receiving state reimbursement for actual expenses under the provisions of this Section, all buses which have a capacity to transport sixteen or more students under the provisions of R.S. 17:1941 et seq. and which meet federal and state requirements, shall be considered as buses fourteen feet of longer in length.
      La. R.S. 17:1941 et seq. , referred to as the Students with Exceptionalities statutes, address the duty of the state and local educational agencies to provide free education to every Louisiana student between the ages of three through twenty-one with an exceptionality. School boards, whose school bus operators provide transportation for these students, are eligible for receiving reimbursement from the State for the actual expenses incurred in paying the minimum salaries of these operators. La. R.S. 17:496(E).

      As previously noted, Mr. Pertuit was a member of the committee that was formed to make recommendations to the JPSB concerning supplementing operators' compensation. This committee recommended that the JPSB subsidize an increase in the minimum cents-per-mile rates set forth in La. R.S. 17:497, which the JPSB thereafter adopted and began paying operators "parish operational pay."

      La. Atty. Gen. Op. No. 05-0455 (2006); 2006 La. AG LEXIS 211*, *10-16.

      For example, educational pay was considered remunerative, and not a "bonus" as urged by the City of Kenner, because the firefighters "earned" the educational incentive pay because the payment was based on a firefighter's obtaining additional education. Dunn , 15-1175, p. 17, 187 So.3d at 412. Similarly, holiday pay was determined to be remunerative and, thus, earnable compensation, because it compensated firefighters for work they actually performed on holidays. Id. , 15-1175, pp. 24-25, 187 So.3d at 414-415.