author: ‘LILJEBERG, J.

text:
    Daniel J. LIGHTELL v. Tammy E. LIGHTELL
    NO. 17-CA-377
    Court of Appeal of Louisiana, Fifth Circuit.
    December 13, 2017
    COUNSEL FOR PLAINTIFF/APPEL-LEE, DANIEL J. LIGHTELL, Stephen R. Rue, Gretna
    COUNSEL FOR DEFENDANT/APPELLANT, TAMMY E. LIGHTELL, Renee L. Swanson, Gretna
    Panel composed of Judges Susan M. Chehardy, Robert A. Chaisson, and Hans J. Liljeberg
   ‘LILJEBERG, J.

| Appellant, Tammy E. Lightell, seeks review of the trial court’s May 31, 2017 Judgment, which maintained appellee, Daniel Lightell’s objection to hearing officer recommendations and found Ms. Ligh-tell’s interim spousal support award should terminate retroactive to the date of judicial demand pursuant to La. R.S. 9:321(A), For the reasons set forth more fully below, we reverse the trial court’s judgment and find that pursuant to La. C.C. art. 113(B) and La, R.S, 9:321(B)(1), .Ms. Lightell’s interim spousal support award terminated on March 7, 2017, the date the trial court entered its judgment finding Ms. Lightell at fault for the dissolution of the marriage and therefore, ineligible for final spousal support.

FACTS AND PROCEDURAL HISTORY

The parties married on April 30, 1982, and have four children who are all of the age of majority. On August 31, 2015, Mr. Lightell filed a petition for divorce. In response, Ms. Lightell filed an answer and reconventional demand alleging she was free from fault in the termination of the marriage and entitled to interim and final spousal support. The parties appeared before a hearing officer on October 13, 2015, who recommended that Mr. Lightell pay Ms. Lightell $4,623.00 per month for interim spousal support effective on October 15, 2015. Mr. Lightell filed an objection to the hearing officer’s recommendation and on January 25, 2016, the parties entered into a consent judgment on the record awarding Ms. Lightell $5,000.00 per month for interim spousal support. The trial court entered a written judgment on March 1, 2016.

On February 26, 2016, Mr. Lightell filed a Motion to Place Former Family Home on the'Market and Motion to Determine Fault with .a Rule to Terminate LSpousal Support, With respect to. his request to determine-fault and terminate spousal supr port, Mr. Lightell alleged as follows:

5.
Further, Mover avers' that' TAMMY LIGHTELL has requested interim and final periodic spousal support.
6.
Mover avers that TAMMY LIGH-TELL is at fault for the termination of the marriage.
7,
Accordingly, Mover seeks a hearing for purposes of determining fault and terminating spousal support.

Mr. Lightell did not specifically seek to modify or revoke the March 1, 2016 Judgment awarding interim spousal support in this motion.

The trial court entered a final judgment of divorce on September 8, 2016. On February 21, 2017, the parties appeared for a trial on the rule to determine fault. At the conclusion, the trial court took the matter under advisement. On March 7, 2017, the trial court rendered a judgment finding Ms.-Lightell was .not free from fault in the break-up of the marriage. As a result,'she was precluded from seeking final spousal support from Mr; Lightell.

On March 17, 2017, Ms. Lightell filed a rule for contempt alleging that Mr. Ligh-tell failed to pay the interim spousal support due in February 2017, as -well as the partial interim spousal support payment in the amount of $1,129.03 due for the period from March 1, 2017 to March 7, 2017. She also alleged that he still owed $1,319.50 in arrearages awarded in the March 1, 2016 Judgment. In response, Mr. Lightell filed an opposition to the contempt motion arguing that he paid the first installment of $2,500 owed for February 1, 2017, but missed the subsequent payments through no fault of his own because he was laid off from his job on ¡¡¡February 13, 2017. He also filed a motion to terminate spousal support, and alternative motion to reduce spousal support, based on his employment situation.

The parties appeared before the hearing officer on April 3, 2017. In his recommendations, the hearing officer noted that the parties did not agree to the effective date when interim spousal support terminated. The hearing officer recommended that pursuant to La. C.C. art. 113(B) and La. R.S. 9:321(B)(1), interim spousal support terminated on March 7, 2017, the date the trial court determined Ms. Lightell was at fault in the break-up of the marriage. The hearing officer further recommended that Mr. Lightell owed $4,948.53 for past due interim spousal support to be paid at a rate of $500.00 per month starting on May 1,2017, and deferred the issue of contempt pending the receipt of evidence of the date and amount of Mr. Lightell’s final paycheck.

Mr. Lightell filed an objection to the hearing officer’s recommendations arguing that the hearing officer should have applied La. R.S. 9:321(A) and terminated the interim spousal support award retroactive to February 26, 2016, the date he filed the Motion to Determine Fault with a Rule to Terminate Spousal Support.

Following a hearing on May 1, 2017, the trial court maintained Mr. Ligh-tell’s objection and found the interim spousal support award terminated retroactive to the date of the filing of Mr. Lightell’s February 26, 2016 motion. On May 1, 2017, Ms. Lightell filed a motion and order of appeal, which the trial court signed on May 4, 2017. On May 31, 2017, the trial court entered a written judgment maintaining Mr. Lightell’s objection and terminating interim spousal support retroactive to the date of judicial demand on February 26, 2016, pursuant to La. R.S. 9:321(A).

| ^LAW AND DISCUSSION

On appeal, Ms. Lightell contends the trial court erred by finding that La. R.S. 9:321(A) applied to determine the effective date of termination of the interim spousal support award. She contends the trial court’s ruling is contrary to the plain language contained in La. C.C. art. 113(B) and La. R.S. 9:321(B)(1).

The relevant portions of La. C.C. art 113 provide as follows:

A. Upon motion of a party or when a demand for final spousal support is pending, the court may award a party an interim spousal support allowance based on the needs of that party, the ability of the other party to pay, any interim allowance or final child support obligation, and the standard of living of the parties during the marriage, which award of interim spousal support allowance shall terminate upon the rendition of a judgment of divorce.
B. If a claim for final spousal support is pending at the time of the rendition of the judgment of divorce, the interim spousal support award shall thereafter terminate upon rendition of a judgment awarding or denying final spousal support or one hundred eighty days from the rendition of judgment of divorce, whichever occurs first. The obligation to pay interim spousal support may extend beyond one hundred eighty days from the rendition of judgment of divorce, but only for good cause shown. [Emphasis added.]

The relevant portions of La. R.S. 9:321 provide:

A. Except for good cause shown, a judgment awarding, modifying, or revoking an interim spousal support allowance shall be retroactive to the date of judicial demand.
B. (1) A judgment that initially awards or denies final spousal support is effective as of the date the judgment is rendered and terminates an interim spousal support allowance as of that date.
(2) If an interim spousal support allowance award is not in effect on the date of the judgment awarding final spousal support, the judgment shall be retroactive to the date of judicial demand, except for good cause shown. [Emphasis added].

Pursuant to La. C.C. art. 113(B), when a claim for final spousal support is pending at the time of divorce, an interim spousal support award terminates with | tithe judgment either awarding or denying final spousal support. Furthermore, pursuant to La. R.S. 9:321(B)(1), the judgment awarding or denying final spousal support terminates interim spousal support as of that date. See Maggio v. Maggio, 07-983 (La App. 5 Cir. 3/25/08), 981 So.2d 55, 59, writ denied, 08-1112 (La. 9/19/08), 992 So.2d 960.

In Maggio v. Maggio, supra, the appellant challenged the trial court’s decision to make a final spousal support award retroactive to the date of divorce. The appellant was receiving interim spousal support at the time the divorce judgment was rendered and when the judgment awarding final spousal support was rendered. This Court applied La. R.S. 9:321(B)(1) and amended the trial court’s judgment to make the effective date of the final spousal support award and corresponding termination of - the interim spousal support award, the date the judgment awarding final spousal support was rendered. 981 So.2d at 59.

Mr. Lightell contends that when the trial court found Ms. Lightell at fault for the break-up of the marriage, this ruling essentially granted his motion to terminate spousal support and as a result, the termination should be retroactive to the date he filed his motion to terminate spousal support pursuant to La.' R.S. 9:321(A). The plain language of this provision indicates that it only applies to a judgment awarding, modifying or revoking an interim spousal support award. However, the trial-court’s March 7, 2017 Judgment did riot grant Mr. Lightell’s motion to terminate spousal support. Furthermore, our review of Mr. Lightell’s motion indicates hé did not request a modification or revocation of the March 1, 2016 Judgment awarding interim spousal support. He consented to this award and did not subsequently raise any grounds as to why the trial court should modify or Rrevoke this award. Rather, he requested that the trial court determine Ms. Lightell to be ineligible for final spousal support due to her fault for the dissolution of the marriage and as a result, terminate thé interim spousal support. In such a situation, La. C.C. art. 113(B) and La. R.S. 9:821(B)(1) clearly provide that interim spousal support terminates oh the date the judgment denying final spousal support is rendered.

Furthermore, if this Court maintained the trial court’s ruling on retroactivity, Ms. Lightell would be obligated to return essentially all of the interim spousal support payments made to her based on the filing of a motion seeking to terminate spousal support due to her alleged fault. Fault, however, is not a consideration in a decision to award interim spousal support. Brignac v. Brignac, 02-428 (La. App. 5 Cir. 11/13/02), 833 So.2d 373, 375. Interim spousal support is based solely on the need of the claimant, the nomclaimant’s ability to pay, and the standard of living enjoyed during the marriage. La. C.C. art. 113. Interim spousal support is designed to assist the claimant in sustaining the same style or standard of living enjoyed while residing with the other spouse, pending the litigation of the divorce. Short v. Short, 11-1084 (La. App. 5 Cir. 5/22/12), 96 So.3d 552, 556. The purpose of interim spousal support is to maintain the status quo without unnecessary economic dislocation until a final determination of support can be made. Id.

DÉCREE

Accordingly, we reverse the trial.court’s judgment which maintained Mr. Lightell’s objection to the hearing officer’s recommendations and find that pursuant to La. C.C. art. 113(B) and La. R.S. 9:321(B)(1), Ms. Lightell’s interim spousal support award terminated on March 7, 2017, the date the trial court entered its judgment finding Ms. Lightell at fault for the dissolution of the marriage and therefore, ineligible for . final spousal support. We remand the matter to the trial |7court to consider Mr. Lightell’s remaining objections to the hearing officer’s recommendations.

REVERSED AND REMANDED

      . In a related matter, Daniel J. Lightell v. Tammy E. Lightell, 17-327 (La. App. 5 Cir. _/_/17), this Court affirmed the trial court’s March 7, 2017 Judgment, which found Ms. Lightell at fault for the dissolution of the marriage.

      . Mr. Lightell also agreed to pay Ms. Lightell $1,319.50 in arrearages payable at a rate of $200.00 per month upon termination of interim spousal support.

      . La. C.C.P. art. Ill provides that the'court "may award final periodic support to a party who is in need- of support and who is free from fault prior to the filing of a proceeding to terminate the marriage .... ”

      . An appeal granted before the signing of a final judgment is premature and subject to dismissal until the final judgment is signed. Jacobsen v. Asbestos Corp., 12-655 (La. App. 5 Cir. 5/30/13), 119 So.3d 770, 774. Once the final judgment is signed, any previously existing defect is cured. Id.

      . La. C.C. art. 113(B) also provides for the termination of an interim spousal support award 180 days after the judgment of divorce. However, this provision is not applicable in this matter because 180 days after the judgment of divorce was on March 8, 2017, the day after the trial court entered its ruling finding Ms. Lightell at fault for the dissolution of the marriage.


source: Caselaw Access Project

author: THERIOT, J.

license: Public Domain

text:
    Paul W. BROWN v. BOARD OF TRUSTEES-MUNICIPAL POLICE EMPLOYEES’ RETIREMENT SYSTEM
    NO. 2017 CA 0295
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: December 18, 2017

      James L. Carroll, Columbia, Louisiana, Counsel for Plaintiff/Appellant,. Paul W. Brown
    Carlton Jones, III, Baton Rouge, Louisiana, Counsel for Defendant/Appellee, Board of Trustees of the Municipal Police Employees’ Retirement System
    BEFORE: McCLENDON, WELCH, AND THERIOT, JJ.
   THERIOT, J.

|2The appellant, Paul W. Brown, appeals the judgment of the Nineteenth Judicial District Court that denied a permanent injunction against the appellee, the Board of Trustees of the Municipal Police Employees’ Retirement System (MPERS). For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

The appellant is a retiree of the Monroe Police Department (MPD). On December 28, 1991, the appellant, while in the performance of his official duties as a police officer for the MPD, was shot- in the area of his left foot and anide. After recovering from his injuries, the appellant returned to work with the MPD in 1992, but continued to have worsening difficulties with pain in his left foot and leg. On January 9, 2007, the appellant required reconstructive surgery on his left ankle. After the surgery, his treating physician recommended that the appellant retire from the police force.

On June 6, 2007, after being evaluated at the Baton Rouge Police Clinic, it was determined that the appellant was permanently disabled from returning to work as a police officer. On June 21, -2007, the MPERS Board of Trustees (the Board) approved the appellant for 100% duty-related disability retirement pursuant to La. R.S. 11:2223(E).

Oh June 1, 2015, the Boárd re-evaluated all of its beneficiaries under La. R.S. 11:2223(E), which included the appellant. The appellant was notified by the Board that he would need'another medical examination in order to continue receiving his benefits. See La. R.S. 11:220(A). The Board | (¡retained Dr. Douglas Brown, an orthopedic surgeon located in Monroe, Louisiana, to examine the appellant. After the examination, Dr. Brown issued an opinion that the-appellant was unable to function as a policeman.

At a meeting held on October 21, .2015, the Board elected to adjust the appellant’s disability benefits from 100% of his former salary to 49.38%, which is the rate prescribed by La. R.S. 11:2223(B). On November 12, 2015, the appellant filed a petition for permanent injunction, temporary restraining order, and preliminary injunction, in which he claimed that the Board did not have the right to unilaterally change his disability status that such an action violated due process of law. The appellant requested that the court enjoin the Board from reducing his disability benefits from 100% to 49.38%.

The trial court granted the appellant’s request-for a preliminary injunction on. January 21, 2016. The appellant amended his petition to allege that the-Board’s October 21,- 2015 meeting violated the Open Meetings Law. See La. R.S. 42:17(A). Specifically, the appellant alleged that the Board violated the Open Meetings Law by discussing and adopting Lthe findings of Dr. Brown without affording the appellant prior notice of the meeting or an opportunity to appear.

At a March 2016 board meeting, the Board discussed the, appellant’s disability status, this time providing the appellant with prior notice of the- meeting. The appellant was present at the meeting and addressed the Board. The Board voted to i-educe the appellant’s benefits to 49.38%, voted to revoke its decision of the October 21, 2015 meeting, but also voted' not to reduce the appellant’s benefits until the trial on the injunction was concluded.

Trial on the injunction was held on August 5, 2016. In a judgment signed on October 25, 2016, the trial court dismissed all of the appellant’s claims with prejudice and vacated the temporary restraining order and preliminary injunction against MPERS. This appeal followed.

ASSIGNMENTS OF ERROR

The appellant cites three assignments of error:

1. The' trial court erred when it ruled that MPERS could reduce the appellant’s disability benefit because his in-the-line-of-duty injury oc-. curred before the 2003 amendment to La. R.S. 11:2223(E).
2. The trial court erred' when it failed to address any of the other causes of action raised by the appellant in both his petition and second' amend- . ed petition.
3. The trial court erred when it found that MPERS was within its powers and correct to reduce the appellant’s benefits when the statutory language of La. R.S. 11:218-221 and La. R.S. 11:2223(A) and (E)(2) do not give MPERS the authority to do so.

STANDARD OF REVIEW

The reasons of the trial court indicate that it found the Board was within its powers to reduce the appellant’s benefits. However, we are bound to review the trial court’s judgment, not its reasons. See Wooley v. 5Luchsinger, 2009-0571 (La. 4/1/11), 61 So.3d 507, 572. The trial court’s dismissal of the appellant’s petition for a permanent injunction requires that we use the manifest error standard of review. See Mary Moe, L.L.C. v. Louisiana Bd. Of Ethics, 2003-2220 (La. 4/14/04), 875 So.2d 22, 29.

DISCUSSION

First Assignment of Error

The appellant argues that the reconstructive surgery on January 9, 2007 caused the total loss of the use of his leg, not the December 28, 199Í injury; therefore, La. R.S. 11:2223(E)(2) is applicable since the total loss of the use of his leg occurred after July 1, 2003. We disagree with the appellant’s interpretation of the statute and only have to read the plain language of the statute to determine its meaning. See Cleco Evangeline, LLC v. Louisiana Tax Com’n, 2001-2162 (La. 4/3/02), 813 So.2d 351, 355. The applicability of La. R.S. 11:2223 (E)(2) is triggered by an injury sustained on or after July !, 2003. Upon reading the statute with the common meaning of its language, the total loss of the use of a limb occurring after July 1, 2003 will not make the statute applicable to a retiree if the underlying injury occurred prior to that date. Thus, the question is not when an officer loses the total use of the limb, the question is what is the date of the on-the-job injury that caused the loss of the total use of the limb.

It is established in the record that the appellant was shot in the area of the left foot and ankle on December 28, 1991. He continued his duties as a police officer until 2007, when he underwent reconstructive surgery. Subpart (E)(2) of La. R.S. 11:2223 was added by Legislative Act 610 in 2003, becoming effective July 1, 2003. 2003 La. Sess. Law Serv. Act 610 (H.B. 247). The Subpart specifically applies to retirees under MPERS who “lose total use of a íimb solely as a result of injuries sustained on or after |fiJuly 1, 2003.” (emphasis added) Since the appellant’s on-the-job injury occurred before July 1, 2003, the Board erred when it approved 100% benefits for the appellant in 2007.

To rectify its error, the Board adjusted the appellant’s rate of benefits to conform with La. R.S. 11:2223(B). The Board had authority to do so under La, R.S. 11:192, which provides: “Whenever any state ... or municipal retirement system ...' pays any sum of money or benefits to a retiree ... which is not due them, the [Board] shall adjust the amount payable- to the correct amount.” (emphasis added) Thus, the Board was statutorily mandated to adjust the rate to avoid overpayment. See DiPaola v. Municipal Police Employees’ Retirement System, 2014-0037 (La. App. 1 Cir. 9/25/14), 155 So.3d 49, 53, writ denied, 2014-2575 (La. 2/27/15), 159 So.3d 1071.

Based on the above, we find the trial court did not err in dismissing the appellant’s claim with prejudice and vacating the temporary restraining order and preliminary injunction. The appellant’s first assignment of error is without merit.

Second Assignment of Error

The appellant argues the trial court erred when it failed to address the other causes of action raised by the appellant in his injunctive action and his second amended petition. The appellant avers the trail court failed to consider the following: (1) the appellant’s argument that the Board violated the Open Meetings Law when it failed to give the appellant notice of- the October 21, 2015 hearing to reduce his benefits, thus rendering all of the Board’s decisions void;' (2) the' appellant’s argument that-he was wrongfully denied the recovery of attorney fees that-he incurred in order to pursue the Board’s violation of the Open Meetings Law; (3) the testimony of Dr. |7Pouglas Brown, who, according to the appellant, certified the appellant’s “condition” as to his -loss of the total use of his limb-pursuant to La. R.S. 11:2223(A) & (E)(2); and (4) the appellant’s argument that the Board’s action to reduce the appellant’s benefits without due process of law constitutes a violation-of 42 U.S.C. § 1983. We note that the judgment did dismiss all of the appellant’s claims.'Therefore, the trial court did rule on all matters. However, we shall review if dismissing all claims was proper.

Open Meetings Law Violation

The appellant argues that the trial court erred when it did not render judgment for the appellant in light of uncontroverted and stipulated evidence that the Board failed to give the appellant notice of the October 21, 2015 hearing in violation of the Open Meetings Law, thus rendering all decisions relating to the appellant void. The Open Meetings Law is provided in La. R.S. 42:17(A)(1), and states, in relevant part:

A. A public body may hold an executive session pursuant to La. R.S. 42:16 for one or more of the following reasons:
(1) Discussion of the character, professional competence, or physical or mental health of a person, provided that such person is notified in writing at least twenty-four hours, exclusive of Saturdays, Sundays, and legal holidays, before the scheduled time contained in the notice of the meeting at which such executive session is to take place and that such person may require that such discussion be held at an open meeting.”

According to the appellant, the Board’s failure to notify him of the October 21, 2015 hearing constituted a violation of the Open Meetings Law. The appellant further cites La. R.S. 42:24, which states that “[a]ny action taken in violation of this Chapter shall be voidable by a court of competent jurisdiction. A suit to void any action must be commenced within sixty days of the action.”

8The appellant correctly asserts that he was entitled to notice of the October 21, 2015' meeting. Because this notice was not properly given, the Board vacated its October 21, 2015 decision to reduce the appellant’s disability benefits at its March 2016 meeting. By vacating the October 21, 2015 decision, the Board rendered the October 21, 2015 decision null and void. Therefore, it is unnecessary for the trial court to void the October 21, 2015 decision. As such, this assignment of error is without merit.

Attorney Fees

The appellant argues that the trial court erred when it did not render judgment in his favor in light of uncontroverted and stipulated evidence that the Board failed to give him notice of the October 21, 2015 hearing to reduce his benefits in violation of the Open Meetings Law, thus denying appellant the recovery of attorney’s fees he incurred to protect his rights.

The appellant cites to La. R.S. 42:26, which provides in relevant part that “[i]f a person who brings an enforcement proceeding prevails, he shall be awarded reasonable attorney fees and other costs of litigation.” The appellant did not prevail on the merits, therefore, the trial court is not mandated to award attorney fees. We find the trial court did not err in not awarding attorney fees. This assignment of error lacks merit.

Dr. Brown’s Testimony

The appellant argues that the trial court erred when it did not render judgment in his favor in light of the uncontroverted testimony of Dr. Douglas Brown, who— pursuant to La. R.S. 11:2223(A) and La. R.S. 11:2223(E)(2) — certified the appellant’s “condition” as to the loss of total use of his limb. As expressed above, La. R.S. 11:2223(E)(2) does not apply to the appellant because his original injury occurred in 1991, prior to the 2003 amendment of the statute. Dr. Brown was chosen by the Board to ^examine the appellant for the purposes of determining whether the appellant’s disability status had changed. Although Dr. Brown found that the appellant had functionally lost the total use of his limb, his findings have no bearing as to whether the appellant’s injury occurred before or after the 2003 amendment. Accordingly, this assignment of error is without merit.

42 U.S.C. § 1983

The appellant argues that the trial court erred when it did not find that the Board’s action to reduce his benefits was without due process of law and constituted a violation of 42 U.S.C. § 1983. The appellant specifically argues that he was denied due process of the law when he was not notified of the October, 21, 2015 hearing and also denied due process of the law when the Board “rubber stamped” the decision of the October 21, 2015 meeting at its March 16, 2016 meeting.

42 U.S.C. § 1983 does not create substantive rights. See Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 617, 99 S.Ct. 1905, 1916, 60 L.Ed.2d. 508 (1979). Instead, 42 U.S.C. § 1983 provides a civil remedy for the violation of a person’s constitutional rights and states, in pertinent part:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress[.]

Accordingly, recovery under 42 U.S.C. § 1983 requires a plaintiff to allege and prove two essential elements: (1) that defendant’s conduct occurred under color of state law, and (2) that defendant’s conduct deprived him or her of a right, privilege, or immunity secured by the Constitution or a law of the United States. Kyle v. Civil Service Comm’n, 588 So.2d 1154, 101159 (La. App. 1st Cir. 1991), writ denied, 595 So.2d 654 (La. 1992) (citing Moresi v. Dep’t of Wildlife and Fisheries, 567 So.2d 1081, 1084 (La. 1990)).

The first question to decide is whether the Board’s conduct in this case occurred under color of state law. The term “color of state law” is synonymous with “state action.” Varnado v. Department of Employment and Training, 95-0787 (La. App. 1 Cir. 6/28/96), 687 So.2d 1013, 1022. MPERS is a statewide retirement system that provides retirement allowances and other benefits for full-time municipal police officers and employees in the state of Louisiana. Accordingly, the Board’s reduction of the appellant’s retirement benefits constitutes conduct occurring under color of state law.

The second question is whether the Board’s conduct deprived the appellant of a right, privilege, or immunity secured by the Constitution or a law of the United States. Specifically, the appellant argues that his due process rights were violated when he was not notified of the October 21, 2015 hearing. He further argues that the March 16, 2016 meeting was a “rubber stamp” of the October 21, 2015 hearing, and thus, “patently unfair.”

Due process requires that a deprivation of life, liberty, or property “be preceded by notice and opportunity for hearing appropriate to the nature of the case.” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542, 105 S.Ct. 1487, 1493, 84 L.Ed.2d 494 (1985). Accordingly, it must be determined whether the appellant was deprived of property and if so, whether he was given notice arid opportunity for a hearing.

To have a property interest, a person must have a legitimate claim of entitlement to it. Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972). Further, property interests are created and defined by existing rules or understandings that stem from an independent source such as state law — rules or understandings that secure ^certain benefits and that support' claims of entitlement to those benefits. Id. at 577, 92 S.Ct. 2701. For example, persons receiving welfare benefits under statutory and administrative .standards defining eligibility for them have an interest in continued receipt of those benefits that is safeguarded by procedural due process. Id. at 576, 92 S.Ct. 2701 (citing Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970)). Therefore, welfare recipients have a right to a hearing at which they might attempt to show that they are within the statutory terms of eligibility. Id. at 577, 92 S.Ct. 2701.

Similar reasoning applies to the present case. The appellant certainly has a property interest in the retirement benefits that he is legally entitled to receive. In regard to the October 21, 2015 hearing, any violation of the appellant’s rights due to a lack of notice was remedied when the Board vacated that meeting’s ruling. As for the March 16, 2016 meeting, the appellant was notified of this meeting via letter to his attorney dated March 8, 2016. The appellant was also given the opportunity to make, and did make, a presentation at this meeting. We find the appellant did receive notice and had a meaningful opportunity to be heard that was appropriate to the nature of the case at hand. See Cleveland Bd. of Educ., 470 U.S. at 545, 105 S.Ct. at 1495; See also Brown v. Housing Auth. of New Orleans, 590 So.2d 1258, 1260 (La. App. 1st Cir. 1991).

The appellant also argues that the March 16, 2016 hearing was patently un fair because the Board held an executive session before the hearing itself. - La. R.S. 42:17(A)(2) states:

A. A public body may hold an executive session pursuant to La. R.S. 42:16 for one or more, of the following reasons:
(2) Strategy sessions or negotiations with respect to collective bargaining, prospective litigation after formal written demand, or litigation when an open meeting would have a detrimental effect on the bargaining or litigating position of ' the public body. -

I iaThe Board voted to enter executive session at 9:32 a.m. to discuss items 8, 9 and 10 on the agenda. These three items were three separate litigation matters the Board was a party to, including the matter entitled “Paul Brown v. MPERS”. The Board returned, to regular session at 10:11 a.m. Exhibit D-23.' Under La. R.S. 42:17(A)(2), the Board was within its rights to enter executive session to discuss the three pending legal matters; therefore, this assignment of error lacks merit.

Third Assignment of Error

The appellant’s third assignment of error does not accurately reflect the trial court’s judgment and laeks merit. The trial court did not affirmatively rule that the Board could reduce the appellant’s disability benefits pursuant to La. R.S. 11:218-221 or La. R.S. 11:2223(A) and (E)(2). While those statutes outline the procedures for establishing and modifying -benefits, the Board’s authority to reduce appellant’s disability benefits is provided in La. R.S. 11:192.

Regarding the appellant, the Board addressed two issues at its March 2016 meeting. The .first issue was recertification of the appellant s disability pursuant to. La. R.S. 11:220. That recertification was completed by the Board’s acceptance of Dr. Brown’s findings that the appellant continued to be totally disabled from the 1991 injury.

The second issue, which is at the center of the instant appeal, addresses the determination of the rate of benefits. At some point during a review of the appellant’s case in 2015, the Board reached the determination that the appellant’s injury occurred before 2003; however, in 2007, the Board had granted to the appellant 100% disability benefits pursuant to La. R.S. 11:2223(E)(2). As stated above, the 2007 action by the Board was an error on its part, since La. R.S. 11:2223(E)(2) does not apply to the facts of | iathis case. Rather, La. R.S. 11:2223(B) provided the applicable procedure for determining the appellant’s rate of disability benefits. Therefore, as previously discussed, the Board was authorized under La. R.S. 11:192 to adjust the appellant’s retiree disability benefits. This assignment of error is without merit.

DECREE

. The judgment of the Nineteenth Judicial District Court , dismissing all of the claims of the appellant, Paul W. Brown, with prejudice, and vacating the temporary restraining order and preliminary injunction against the Board of Trustees of the M i-nicipal Police Employees’ Retirement System, is affirmed. All costs of this appeal are assessed to the appellant, Paul W. Brown.

AFFIRMED.

Welch, J. concurs without reasons.

      . Louisiana Revised Statutes 11:2223(E) states, in pertinent part:
      (2)Any disability retiree who is blinded or who loses the total use of a limb solely as a result of injuries sustained on or after July 1, 2003, in the performance of his official duties, and whose condition is certified by the State Medical Disability Board, shall receive a benefit equal to his final average compensation. No funds derived from the assessments against insurers pursuant to R.S. 22:1476 shall be used to pay any increased costs or increase in liability of the system resulting from the provisions of this Paragraph.

      . Louisiana Revised Statutes 11:2223(B) states, in pertinent part:
      (1) The board of trustees shall award disability benefits to eligible members who have been officially certified by the State Medical Disability Board as disabled to perform the position held by the member at the time that the disability was incurred or as disabled to perform any other position paying the same salary currently available in the department so long as the disability is not the result of a preexisting condition. Upon receipt of any application for disability retirement, the system shall request from the chief of police the job descriptions of all positions currently available in the department paying the same salary, Such job descriptions shall be submitted to the system within thirty days,' or it'shall be presumed that no position is available that pays the same salary. The disability benefit shall be determined as provided in this Section.
      (2) Upon application for retirement due to a total and permanent disability caused solely as the result of injuries sustained in the per-formancé of his official duties, a member shall receive a disability benefit equal to forty percent of his average final compensation.
      (3) Additionally, any member who is entitled to the disability benefit provided by Paragraph (2) of this Subsection; and who has not less than thirteen and one-third years of creditable service, shall receive a supplemental disability benefit equal to three percent of his average final compensation for each year of creditable service in excess of thirteen and one-third years, this supplemental disability benefit not to exceed twenty percent of his average final compensation.
      (4) Upon application for retirement due to a total and permanent disability, any member with at least ten years creditable service shall receive a disability benefit equal to three percent of his average final compensation multiplied by his years of creditable service, but not less than forty percent nor more than sixty percent of his average final compensation.

      . The only distinction between the Board's decisions of October 21, 2015 and the March '2016 meeting is that it was noted Mr. Brown was given notice and was present at the March 2016 meeting.


author: Judge Terri F. Love LOBRANO, J.,

text:
    JOHN BEGNAUD ELECTRIC MOTORS, INC. v. ALTERNATIVE WELL INTERVENTION, LLC
    NO. 2017-CA-0548
    Court of Appeal of Louisiana, Fourth Circuit.
    December 20, 2017

      Stephen D. Marx, CHEHARDY, SHERMAN, WILLIAMS, MURRAY, RECILE, STAKELUM & HAYES, LLP, One Galleria Boulevard, Suite 1100, Metairie, LA 70001, COUNSEL FOR PLAINTIFF/AP-PELLEE, JOHN BEGNAUD ELECTRIC MOTORS, INC.
    Robert G. Harvey, Sr., 600 North Car-rollton Avenue, New Orleans, LA 70119, COUNSEL FOR DEFENDANT/APPELLANT, ALTERNATIVE WELL INTERVENTION, LLC
    (Court composed of Judge Terri F. Love, Judge, Joy Cossich Lobrano, Judge, Sandra Cabrina Jenkins)
   Judge Terri F. Love

|, This appeal arises from a contract for the construction and sale of a rig that plaintiff was building for defendant. Defendant instructed plaintiff to cease work on the rig after the rig was over halfway completed. Plaintiff requested payment for work completed and presented an invoice signed by the president of defendant. The trial court awarded plaintiff $262,500.00, plus interest from the date of judicial demand, as well as all costs. Defendant appealed contending that the trial court awarded a windfall amount considering the original contract price of the rig and electrical equipment that was never delivered to plaintiff.

We find that the evidence demonstrates that the rig was over halfway completed. Additionally, plaintiff remains obligated to pay for the electrical equipment that had yet to be delivered. Further, the former president for defendant signed no less than two documents acknowledging the $262,500.00 debt. As such, we find that the trial court did not commit manifest error by finding for plaintiff for $262,500.00. The judgment of the trial court is affirmed.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Alternative Well Intervention, LLC (“AWI”) provided “workover services to oil and gas companies in the Gulf of Mexico.” John Begnaud Electric Motors, Inc. (“JBEM”) previously constructed three rigs for AWI and was awaiting the final payment on rig 3 when AWI contracted with JBEM for the construction of rig 4 for $387,029.00. Once JBEM received the final payment on rig 3 and received the initial payment of $96,757.25 for rig 4, construction began. After the oil and gas market suffered a downturn, AWI ordered JBEM to halt construction on rig 4. AWI asked JBEM to submit an invoice for the amount of work completed on rig 4. The invoice reflected that AWI owed JBEM $262,500.00 for rig 4.

12JBEM then needed cash and assigned the invoice to Crestmark Capital (“Crest-mark”). John Stansbury, the former president of AWI, signed the invoice as an acknowledgment. Further, Mr. Stansbury accepted and agreed to the assignment by signing an “Invoice Acknowledgment Agreement” (“IAA”) from Crestmark acknowledging the assignment and his ability to bind AWI. AWI never paid Crestmark on the invoice. JBEM repaid Crestmark for all of the monies Crestmark extended for the invoice. Crestmark then reassigned the invoice back to JBEM. AWI never paid JBEM.

JBEM filed a petition seeking the $262,500.00 payment from AWI. AWI filed Exceptions of No Right of Action and No Cause of Action. The Exception of No Right of Action was based on the premise that JBEM no longer possessed rights regarding the invoice. The trial court granted the Exception of No Right of Action with the right to amend. The Exception of No Cause of Action urged that JBEM was not entitled to attorney’s fees. The trial court granted the Exception of Nó Cause of Action. JBEM then filed -its First Supplemental and Amended Petition, which included the documentation concerning the assignment and reassignment of the invoice. The matter'then proceeded to a bench trial.

The trial court found for JBEM and awarded $262,500.00, plus interest from the date of judicial demand, and all costs. AWI’s Motion for Devolutive Appeal followed.

AWI contends that the’ trial court erred when computing the amount owed to JBEM. Specifically, AWI maintains that it should not be required to pay for a transformer JBEM did not accept delivery on and should not be held responsible for almost the entire agreed upon contract price for a finished rig 4.

STANDARD OF REVIEW

“Louisiana courts of appeal apply the manifest 'error standard of review in civil cases.” Detraz v. Lee, 05-1263, p. 7 (La. 1/17/07), 950 So.2d 557, 561. “[A]-factual finding cannot be set aside unless the appellate court finds that the trier of fact’s determination is manifestly erroneous or clearly wrong.” Id. To reverse a fact finder’s factual determinations, “an appellate court must review the record in its entirety and (1) find that a reasonable factual basis does not exist for-the finding, and (2) further determine that the record establishes that the fact finder is clearly wrong or manifestly erroneous.” Id. “Thus, the issue before the court of appeal is not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one.” Snider v. Louisiana Med. Mut. Ins. Co., 14-1964, p. 5 (La. 5/5/15), 169 So.3d. 319, 323. “The appellate court must not reweigh the evidence or substitute its own factual- findings because it would have decided the case differently.” Id. Furthermore, “[w]here the factfinder’s determination is based on its decision to credit the testimony of one of two or more witnesses, that finding can virtually never be. manifestly erroneous.” Id.

“Where one or more legal errors interdict the trial court’s fact-finding process, however, the manifest error standard becomes inapplicable, and the appellate court must conduct its own de novo review of the record.” Hamp’s Const., L.L.C. v. Hous. Auth. of New Orleans, 10-0816, p. 3 (La. App. 4 Cir. 12/1/10), 52 So.3d 970, 973. “A legal error occurs when a trial court applies incorrect principles of law and such errors are prejudicial.” Id. “Legal errors are prejudicial when they materially affect the outcome and deprive a party of substantial rights.” Id.

“ ‘The manifest error standard of review also applies to mixed questions of law and fact.’ ” State Farm Fire & Cas. Co. v. Hotel Mgmt. of New Orleans, 4L.L.C., 16-0822, p. 3 (La. App. 4 Cir. 5/3/17), 219 So.3d 435, 438, quoting A.S. v. D.S., 14-1098, p. 10 (La. App. 4 Cir. 4/8/15), 165 So.3d 247, 254. “Conversely, purely legal issues ‘are reviewed with the de novo standard of review.’ ” State Farm, 16-0822, p. 3, 219 So.3d at 438, quoting Gordon v. Gordon, 16-0008, p. 3 (La. App. 4 Cir. 6/8/16), 195 So.3d 687, 689.

VALUATION OF COMPLETED WORK

AWI asserts that the trial court committed manifest error by including the price of an undelivered transformer in the award to JBEM.

“Although a plaintiff can establish damages through evidence consisting only of his or her.testimony, such testimony is subject to the trier of fact’s evaluation of credibility.” Doucette v. Guient, 15-1346, p. 11 (La. App. 4 Cir. 12/29/16), 208 So.3d 444, 452.

JBEM presented the live testimony of John Begnaud, the president and owner of JBEM; the deposition testimony of Mr. Stansbury, the former president of AWI; the contract for rig 4; the final invoice to AWI; and several Crestmark documents, including the IAA, regarding the assignment of the final invoice.

Mr. Begnaud testified that AWI previously contracted with JBEM for the construction and sale of three rigs prior to contracting for rig 4. As reflected by |Bthe invoice/contract entered into evidence, the price of rig 4 was $387,029.00. JBEM and AWI agreed upon three payments for rig 4:25% as a down payment, 50% when halfway completed, and 25% when completed.

Mr. Begnaud testified that when AWI halted construction of rig 4, JBEM was “better than half way finished.” AWI also requested that JBEM calculate the price of the work completed. Mr. Begnaud stair ed that he deducted the 25% already paid and the labor and materials remaining from the project price of $387,029.00 .to calculate the amount owed. JBEM’s final invoice to AWI was for $262,500.00. Mr. Begnaud stated that'no deviations or alterations were made from the contract. Further, Mr. Begnaud testified that JBEM never accepted delivery of. the “specially ordered” $174,500.00 transformer needed for rig 4 because JBEM was waiting to get paid for it.' ...

Mr. Begnaud testified that when Mr. Stansbury was presented with the invoice, he did not express' concérns regarding the amount. AWI had “a hard time coming up with the money to pay” JBEM, so Mr. Begnaud stated that JBEM decided to assign the invoice to Crestmark. Mr. Stans-bury signed and dated the invoice, September 9, 2014. Mr. Begnaud testified that this’ signified AWI would pay Crestmark directly. ’Not having received any payments from AWI, Crestmark demanded that JBEM buy the invoice back. Crest-mark then reassigned the invoice back to JBEM; Mr. Begnaud stated that AWI never paid the invoice.

Mr. Stansbury, the former president of ÁWI, testified that the investor group of AWI decided to halt construction on rig 4. Mr. Stansbury stated that “we signed” the invoice. “so he could factor it.” Further, Mr. Stansbury testified that he signed the IAA from Crestmark that indicated AWI would pay Crestmark. ^However, Mi\ Stansbury stated that AWI agreed to pay Mr. Begnaud and Mr. Begnaud would then pay Crestmark. Mr. Stansbury stated that he was “helping John out so he could factor the invoice.” Mr. Stansbury had no reason to believe that rig 4 would not have been completed by JBEM if AWI had not halted construction.

In regards to the transformer JBEM ordered from Bayou Buff Electric (“Bayou Buff’), Mr. Stansbury testified that Bayou Buff was closed. Mr. Stansbury was unaware if Bayou Buff demanded payment for the transformer from JBEM. Mr. Beg-naud stated that the transformer “was special ordered” with “no returns” and that Bayou Buff telephoned JBEM about the rig numerous times. Bayou Buff had not pursued legal action against JBEM “yet.”

After reviewing the testimony and evidence presented, the trial court held in favor of JBEM and awarded $262,500.00. The trial court found that the alleged “fact that Bayou Buff is out of business does not mean it is not legally entitled to collect for the custom electrical equipment that [JBEM] ordered. It is true that [JBEM] has not been sued by Bayou Buff — yet.” Further, the trial court stated that, “regarding the amount that AWI should be obligated to pay,” the final invoice and the IAA from Crestmark were signed by Mr. Stansbury and acknowledged AWI’s debt.

3. The contract provided that twenty-five percent of the contract price was due initially, fifty-percent at the halfway mark (“second draw”), and the last twenty-five percent due upon completion. It is undisputed that JBEM completed over fifty percent of rig 4 before AWI halted construction. Halting construction after JBEM completed over fifty-percent of rig 4 connotes that a larger monetary amount would be due to JBEM instead of the second draw amount asserted by AWI. ^Additionally, AWI contends that it should not be responsible for the cost of the transformer. However, it is undisputed that JBEM specially ordered the transformer from Bayou Buff. While AWI asserts that Bayou Buff closed, thereby erasing JBEM’s obligation for the transformer, no proof was presented.

Also, upon our review, it is clear from the record that Mr. Stansbury signed and dated the final invoice for work completed from JBEM. Further, he signed the IAA, wherein he confirmed that he had the authority to issue checks to pay the invoice assigned to Crestmark and to approve the invoice for payment. Mr. Begnaud testi-fíed that JBEM was over halfway completed with the construction of rig 4. Although AWI contends that Bayou Buff will never seek payment for the specially ordered transformer valued at $174,500.00, AWI did not present evidentiary proof that JBEM would not be obligated to Bayou Buff. Accordingly, we do not find that the trial court committed manifest error by finding for JBEM or for ordering payment for $262,500.00, which exceeded the $193,514.50 second draw amount, and affirm.

DECREE

|sFor the above-mentioned reasons, we find that the record documented that JBEM ordered the transformer from Bayou Buff and continues .to be obligated to pay for same. Considering this and that rig 4 was over halfway completed when AWI halted construction, we find that the trial court did not commit manifest error by awarding JBEM $262,500.00. Accordingly, the judgment of the trial court is affirmed.

AFFIRMED

LOBRANO, J., DISSENTS AND ASSIGNS REASONS

JENKINS, J., CONCURS IN THE RESULT ,

LOBRANO, J.,

DISSENTS AND ASSIGNS REASONS.

hi respectfully dissent. I find' that by awarding damages as if the contract for the construction of rig 4 were complete, the district court incorrectly classified the contract between John Begnaud Electric Motors, Inc. (“JBEM”) and .Alternative Well Intervention, LLC (“AWI”) as a contract of sale rather than a contract to build, which caused the district court to incorrectly calculate damages in its award. Accordingly, the district court’s judgment awarding damages to JBEM in the amount of $262,500.00 for the, expense and labor needed to complete rig 4 and for sales tax is contrary to law. As I find that the district court committed legal error by failing to classify the contract between JBÉM and AWI as a contract to build, I would conduct my own independent de novo review of the record, find that the 12parties entered into a contract to build, and award damages to JBEM for the “expense and labor already incurred” on the contract as set forth in La. C.C." art. 2765. I would therefore reverse the district court’s judgment and award damages to JBEM -in the amount of $90,215.75.

AWI agreed to a contract with JBEM for JBEM’s construction of rig 4. The contract price was for $368,599.00 plus sales tax of $18,430.00. AWI paid a twenty-five percent (25%) down payment in the amount of $96,757.25 as provided by the contract. The contract listed thirteen (13 or XIII) items to be constructed relative to rig 4, along with the price of each item. In particular, ítem I, an electrical transformer,' had a' corresponding price of $174,551.00. In addition, JBEM included a line item for sales tax payable to the City of Scott of $18,430.00.

There is no dispute in the record testimony .that following JBEM’s initiation .of work on the contract, the parties agreed that JBEM would stop work and bill AWI for the work performed to date. It is also undisputed that JBEM built Items II through IX of the contract, and those items remained in JBEM’s possession.

John Begnaud (“Mr. Begnaud”) testified that JBEM “special ordered” Item I, the transformer, from a third party supplier, Bayou Buff Electric. There was no testimony that the transformer was completed. There,was no contract, invoice, purchase order, demand letter, or any other evidence admitted into evidence establishing JBEM had incurred an expense for the purchase of the transformer.

In its judgment, the district court awarded damages in the amount of | <¡$262,500.00 on the basis of a subsequent invoice submitted by JBEM to AWI dated September 9, 2014. However, the testimony reflects that the $262,500.00 was a revised price agreed to by the parties to complete rig 4 after consideration of the $96,757.25 down payment made by AWI to JBEM. Mr. Begnaud testified that he calculated the amount of the September 9, 2014 invoice by determining the cost of “the work left to be done and the material left to buy” and deducting that amount, as well as the 25% down payment, from the original contract price. Nothing in the record established that the parties entered-into a binding settlement agreement establishing the $262,500.00 as an agreed upon amount that AWI would pay JBEM for early termination of the contract.

Contracts to build are differentiated from contracts of sale by the obligations they create. 24 La. Civ. L. Treatise, Sales § 1:10 (2017). Contracts to build create obligations to “do,”, whereas contracts of sale create obligations to “give.” See id.; FMC Corp. v. Continental Grain Co., 355 So.2d 953 (La. App. 4th Cir. 9/8/1977). In the case sub judice, the contract at issue created both an obligation to do something and an obligation to give something. When contracts create both types of obligations, one of those obligations is- “fundamental,” and governs the classification of the contract. 24 La. Civ. L. Treatise, Sales § 1:10 (2017); Conmaco, Inc. v. S. Ocean Corp., 581 So.2d 365, 369 (La. App. 4th Cir. 5/30/1991). As the contract was negotiated prior to construction of rig 4, and the primary purpose of th.e contract was for JBEM to provide its labor and skill to construct rig 4, the contract is properly characterized as a contract to build. See, e.g., Conmaco, Inc. v. Southern Ocean Corp., 581 So.2d 365 (La. App. 4th Cir. 1991); Ortego v. Dupont, 611 So.2d 792 (La. App. 3d Cir. 1992); Henson v. Gonzalez, 326 So.2d 396 (La. App. 1st Cir. 1976).The district court’s ruling demonstrates that the contract in this case was improperly viewed as a contract of sale as opposed to a contract to build.

Given that the contract is a contract to build, La. C.C. art. 2765 is applicable to the facts of this case. Article 2765, provides that the “proprietor has a right to cancel at pleasure the bargain he has made, even in case the work as already been commenced, by paying the undertaker for thé expense and labor already incurred, and such damages as the nature of the case may require” (emphasis added). Pursuant to La. C.C. art. 2765, it was JBEM’s burden of proof at trial to establish the “expense and labor already incurred,’ and such damages as the nature of the case may require.” Mr. Begnaud testified based on his personal knowledge that JBEM successfully completed Items II through IX of the quote issued February 12, 2014 ■ to AWT'. AWI offered no -rebuttal, and-in-fact the record indicates •there was no dispute as to those items. However, I find that JBEM failed to carry its burden with respect to the electrical transformer with a corresponding price of $174,551.00 (Item -I of the quote), Items X through XIII of the quote, and the sales tax. With respect to the. electrical transformer,: Mr. Begiiaud testified that he special ordered it from Bayou Buff Electric, but offered no proof that JBEM actually incurred the expense of the transformer.

’ It is well-settled law that “[s]peculative damage awards without a basis of detail or specificity are not' permitted.” Overton v. Shell Oil Co., 2005-1001, p. 19 (La. App. 4 Cir. 7/19/06), 937 So.2d 404, 416. As this Court recently explained in Caruso v. Chalmette Ref., LLC, 2016-1117, pp. 12-13 (La. App. 4 Cir. 6/28/17), 222 So.3d 859, 867, reh’g denied (7/12/17):

[A] plaintiffs burden must be borne by competent evidence showing the extent of the damages and a plaintiffs own uncorroborated personal estimate of loss alone is insufficient to carry his burden. See Tudor Chateau Creole Apartments P’ship v. D.A. Exterminating Co., 5Inc., 96-0951, p. 8 (La. App. 1 Cir. 2/14/97), 691 So.2d 1259, 1264. It is true that when a party has suffered damages but cannot establish them with legal certainty, the courts have discretion to fix the amounts thereof. The latter rule has no application when the damages sought are easily proven, but such proof is not forthcoming. See Banner Chevrolet, Inc. v. Kelt, 402 So.2d 747, 752 (La. App. 4 Cir. 1981).

In Transier v. Barnes Bldg., LLC, 2014-1256, pp. 19-20 (La. App. 3 Cir. 6/10/15), 166 So.3d 1249, 1263-64, the appellate court held that the lower court abused its discretion in awarding damages to a contractor under La. C.C. art. 2765 when the contractor failed to “provide a single receipt or invoice” to prove his claim for damages; i.e., the expenses incurred. With respect to the transformer, no witness testified to any personal knowledge that the transformer was completed, and the record lacks any evidence corroborating JBEM’s claim of any expense incurred or obligation to Bayou Buff Electric for the cost of the transformer.

Similarly, there was no offer of any proof that JBEM actually incurred the expense of the sales tax and the record provides no basis for the district court’s award of $12,500.00 in sales tax. In fact, no sales tax would be due since the record is clear there was no sale of tangible personal property.

Thus, I find that JBEM carried its burden of establishing that it incurred the expense and furnished material with respect to Items II-IX as set forth in the quote of February 12, 2014. I further find that JBEM failed to carry its burden of proof with respect to Item I (the electrical transformer), Items X through XIII, and City of Scott sales tax. Under La. C.C. art. 2765,1 calculate the amount to be awarded to JBEM as the sum of the values of Items II through IX of the February 12, 2014 quote totaling $186,973.00, less the down payment of $96,757.25.

. For these reasons, I would reverse the district court’s judgment and award damages to JBEM in the amount of $90,215.75.

      . The dissent relies upon a distinction between a contract of sale and a contract to build in order to conduct a de novo review of the record. We find that distinction to be without a difference under the facts and circumstances of this case. Traditionally, courts examine whether the contract at issue was one for sale or build when the classification determines substantial rights of the parties and primarily concern the construction or sale of a building/home. See Conmaco, Inc. v. S. Ocean Corp., 581 So.2d 365 (La. App. 4th Cir. 1991) (determining whether redhibition applied). See also Martinez v. Reno, 99-114 (La. App. 5 Cir. 9/15/99), 742 So.2d 1014 (determining right to damages for mental anguish); Morris & Dickson Co., Inc. v. Jones Bros. Co., Inc., 29,379 (La. App. 2 Cir. 4/11/97), 691 So.2d 882 (determining prescription); Mayerhofer v. Three R’s Inc., 597 So.2d 151 (La. App. 3rd Cir. 1992) (right to nonpe'cuniáry damages depends upon classification); Degeneres v. Burgess, 486 So.2d 769 (La. App. 1st Cir. 1986) (classification governed prescriptive period and plaintiffs’ recourse).
      The present case only concerns damages for the breach of contract wherein the president of AWI signed the invoice containing the amount owed for the work completed and further acknowledged this exact amount owed to JBEM in correspondence with Crestmark. The amount on the invoice includes the “expense and labor already incurred.” La. C.C. art. 2765.

      . The dissent states that "the testimony reflects that the $262,500.00 was a revised price agreed to by the parties to complete rig 4 after consideration of the $96,757.25 down payment made by AWI to JBEM.” We disagree. Mr. Begnaud testified that the $262,500.00 invoice "was the invoice to them when they told us to shut it down. Right there, we had invoiced them to that point.” Counsel then asked: "does this ... represent all of the labor costs and the material costs incurred by Rig Electric, you know, over and above the first payment that you had received?” Mr. Begnaud responded, “Yes, sir.” Further, Mr. Begnaud stated that the $262,500.00 invoice was calculated by deducting the first 25% payment, deducting the work remaining, and deducting the materials left to purchase. Nothing in the record contradicts this testimony.

      . The dissent further states that "[n]othing in the record established that the parties entered into a binding settlement agreement establishing the $262,500.00 as an agreed upon amount that AWI would pay JBEM for early termination of the contract.” While the final invoice from JBEM may not met the requirements of La. C.C. art. 3072 (formal requirements of a compromise), the record evidence demonstrates that Mr, Stansbury acknowledged that AWI owed JBEM $262,500.00 for the work completed on rig 4. Not only did Mr. Stansbury sign the invoice, he signed Crest-mark’s irrevocable-acknowledgment that the invoice was assigned to Crestmark and that AWI would pay Crestmark $262,500.00 pursuant to the invoice.

      . The trial court erroneously referenced $80,000.00 as the price of the transformer.

      . Again, we note that the final invoice amount was justified because JBEM was over halfway completed with rig 4 when AWI halted construction.

      . The majority opinion results in a total payment of $342,149.75 plus $17,107.50 in sales tax from AWI to JBEM as follows: the district court's award of $250,000.00 plus $12,500.00 sales tax against AWI plus the down payment of $92,149.75 plus $4,607.50 sales tax. This amount constitutes, for all practical purposes, the full amount of the cost of rig 4, which is undisputedly not complete and in no way usable for its intended purpose. Although, as discussed infra, the contract at issue is a contract to build, it is important to note that the concept of "substantial performance” should not be applied to this case. Substantial performance is a concept applied when a construction may be fit for the purposes intended. See Airco Refrigeration Service, Inc. v. Fink, 134 So.2d 880 (La. 1961). If a contractor has substantially performed such that the construction is fit for its intended use, he is entitled to recover the full contract price. Id. In the case sub judice, the testimony absolutely forecloses the application of substantial performance, as Mr. Begnaud testified that rig 4 was only "better than halfway finished” and the entirety of the record discloses no testimony or evidence indicating that rig 4 was fit for its intended purpose.

      . A trier of fact’s factual conclusions regarding breach of contract claims are typically governed by the manifest error standard of review. See Brenner v. Zaleski, 2014-1323, p. 3 (La. App. 4 Cir. 6/3/15), 174-So.3d 76, 79. However, where an error of law taints the fact finding process, the appellate court must conduct its own de novo review. MST Enterprises Co. v. City of New Orleans, 2015-0112, pp. 5-6 (La. App. 4 Cir. 7/29/15), 174 So.3d 195, 198.

      . • The record in this matter establishes that the contract' consisted of nothing more than a one-page contract to build dated February 19, 2014 with the attached February 12, 2014 quote of construction costs and a purchase order dated February 19, 2014.

      . Items 11 through IX are as follows:
      II Telescopic light stands with sling $38,685
      III Receptacle lighting panel with slings $ 9,300
      IV BOP closing unit (labor and material electrical hook) $ 6,694 .
      V 20x8x4 Baskel/fab/paint/stress test/slings $26,620
      VI - 8x8x4 Baskel/fab/paint/stress test/slings $18,360
      VII 4x4x4 Basket/fab/paint/stress test/slings $23,120
      VIII Electrical Transformer Skid/fab/paint/stress test/slings $21,311
      IX Air Compressor Skid/fab/paint/stress test/slings $42,883

      , See fn. 4, supra.

      . Items X through XIII of the quote are as follows:
      X Spare Parts for Rig $3,575
      XI 125’ Feeder Wire for Tool Hose $1,000
      xn 125’ feeder wire for mud pump $1,000
      xm Price Increase on Metal - 2% (1/1/14) $1,500

      . Under La. R.S. 47:302(A), the , sales tax is imposed upon the "sale at retail” of tangible personal property. Under La. R.S. 47:301(10)(a)(ii), a "sale at retail” for purposes of the imposition of the sales and use tax levied by a political subdivision is defined as a "sale to a consumer or to any other person for any purpose other than for resale in the form of tangible personal property... ”


author: CHAMBERLIN, JUSTICE,

text:
    Rodney Shelton FULGHAM v. Clara JACKSON
    NO. 2016-IA-00570-SCT
    Supreme Court of Mississippi.
    06/22/2017

      ATTORNEY FOR APPELLANT: M. GARNER BERRY
    ATTORNEY FOR APPELLEE; S.' TODD JEFFREYS

      BEFORE DICKINSON, P.J., KING AND CHAMBERLIN, JJ.
   CHAMBERLIN, JUSTICE,

FOR THE COURT:

¶ 1. This interlocutory appeal arises from the Circuit Court of Bolivar .County. Rodney Fulgham argues that the trial judge below erred by denying his motion to dismiss. The motion asserted that the plaintiff, Clara Jackson, failed tq show good cause justifying a second enlargement of time to serve process. Finding no error with the trial judge denying the motion to dismiss, we affirm.

FACTS

¶ 2. On February 4, 2015, Jackson filed a complaint against Fulgham for damages arising from a car accident. A summons was issued the next day, and 'both the complaint and summons stated that Fulg-ham was incarcerated at the Bolivar County Correctional Facility in Cleveland, Mississippi. On May 8, 2015, within the 120-day deadline to serve process, Jackson filed a Motion for Enlargement of Time to Serve Process. In the motion, Jackson stated that she believed Fulgham had been moved to the Carroll-Montgomery County Regional Correctional Facility in Vaiden, Mississippi, and that additional time was needed to serve Fulgham due to his movement through the prison system.-The trial judge granted the motion, giving Jackson an additional 120 days, until October 2, 2015, to serve process on Fulgham. ■

¶ 8. On September 28, 2015, Jackson filed a Second Motion for Enlargement of Time to Serve Process. In the motion, Jackson claimed that she had been advised that Fulgham would be returning to the correctional facility in Bolivar County but that such return never occurred. Therefore, Jackson requested an additional sixty days to servé process. The trial -judge granted the second enlargement, giving Jackson until December 2, 2015, to .serve Fulgham.-.Ultimately, Jackson effectuated service of process on Fulgham on November 12, 2015, at the correctional facility in Carroll County.

¶4. On December 17, 2015, Fuigham filed a Motion to Dismiss for failure to serve, timely process, along with his first responsive pleadings, Fulgham, through counsel, argued that his location in the prison system easily could have been determined by a name search on the Mississippi Department of Corrections website and that "Jackson was not diligent in locating him. Thus, he argued that good cause was not "shown for failing to servé process within the first 120 days after the case had been filed. Jackson filed a response to the rhotion and the trial judge held a hearihg.

¶ 5. At the hearing, Fulgham admitted that the first enlargement was properly granted and abandoned the argument presented in the written motion. Fulgham conceded that, because the first enlargement was sought wi.thin the initial 120-day time frame to serve process, Jackson need only to show “cause,” not “good cause,” See Johnson v. Thomas ex rel. Polatsidis, 982 So.2d 405, 412 (Miss. 2008) (“Rule 4(h) clearly does not apply to a motion for additional time filed, within the initial 120 days”). The trial judge, however, allowed Fulgham to present an ore tenus motion to dismiss, asserting that Jackson had failed to show “good cause” as to why a second enlargement should have been granted.

¶-6. In response to the ore tenus ^ motion, counsel for Jackson claimed that he had contacted an administrative official at the Bolivar County facility who initially stated that Fulgham was in Rankin County for processing. Some time later, counsel learned from the administrative official that Fulgham had been moved to the Gar-roll County facility but would be brought back to Bolivar County within a couple of months. At this time, counsel said he sought the first enlargement. Near the end of the 120-day period under the first enlargement, counsel stated that he contacted the prison official again and learned that Fulgham’s return to Bolivar County was not imminent, so he filed for the second enlargement of time to serve process.

¶7. On April 5, 2016, the trial judge entered an order denying Fulgham’s motion to dismiss, finding that Jackson had demonstrated cause for the first' enlargement and good cause for the second. In doing so, the trial judge determined: (1) Fulgham’s incarceration was a mitigating circumstance; (2) the actions of the administrative official misdirected Jackson’s attempts to locate Fulgham; (3) that Jackson diligently inquired into Fulgham’s location; and (4) that Jackson timely filed motions requesting additional time.

¶ 8. On April 21, 2016, Fulgham filed a Petition for Interlocutory Appeal, which we granted. Fulgham appeals, arguing the trial court abused its discretion in denying the motion to dismiss.

DISCUSSION

¶ 9. “A trial court’s finding of fact on the existence of good cause for the delay in service of process has been deemed ‘a discretionary ruling ... and entitled to deferential review.’ ” Collins v. Westbrook, 184 So.3d 922, 929 (Miss. 2016) (quoting Rains v. Gardner, 731 So.2d 1192, 1197-98 (Miss. 1999)). With regard to these fact-findings, our review is limited to determining only “whether the trial court abused its discretion and whether there was substantial evidence supporting the determination.” Id. (citing Rains, 731 So.2d at 1197). On the other hand, “a decision to grant or deny an extension based upon a question of law will be reviewed de novo.” Foss v. Williams, 993 So.2d 378, 380 (Miss. 2008).

A. Additional motions for enlargements of time to serve process before the expiration of the original period or its previous extension require cause shown.

¶ 10. It is well-settled under Mississippi law that a plaintiff must serve process upon the defendant(s) within 120 days of the filing of the complaint. See M.R.C.P. 4(h). Under Rule 4(h):

If a service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint and the party on whose behalf such service was required cannot show good cause why such service was not made within that period, the action shall be dismissed as to that defendant without prejudice upon the court’s own initiative with notice to such party or upon motion.

Id. In Cross Creek Productions v. Scafidi, 911 So.2d 958, 960 (Miss. 2005), we found that Rule 4(h)’s good-cause requirement “does not apply to a motion for additional time filed within the initial 120 days.” Instead, we determined that, under Rule 6(b), a party need only show “cause” to obtain an enlargement of time so long as the enlargement is sought within Rule 4(h)’s 120-day period. Id. Rule 6(b) of the Mississippi Rules of Civil Procedure states:

(b) Enlargement. When by these rules or by notice given thereunder or by order of court an act is. required or allowed to be done at or within a specified time, the court for cause shown may at any time in its discretion (1) with or without motion or notice order the period enlarged if request therefore is made before the expiration of the period originally prescribed or as contended by a previous order, or (2) upon motion made after the expiration of the specified period permit the act to be done where failure to act was the result of excusable neglect; but it may not extend the time for taking any action under Rules 50(b), 52(b), 59(b), 59(d), 59(e), 60(b), and 60(c) except to the extent and under the conditions therein stated.

M.R.C.P. 6(b) (emphasis added).

¶ 11. In Johnson, we again read Rule 4(h) in conjunction with Rule 6(b), restating that a plaintiff is entitled to a first enlargement of time “for cause shown” when he or she files a motion for enlargement of time within the 120-day time period prescribed in Rule 4(h). Johnson, 982 So.2d at 413. However, we then stated— without citing any language from the rules in support — that “once a party has received a first extension of time under Rule 4(h) in which to serve process, a second or subsequent extension to effectuate service of process may be granted by the trial court only upon a showing of ‘good cause.’” Johnson, 982 So.2d at 413 (emphasis added). We are convinced that this statement of the law in Johnson was in error as it conflicts with the plain language of Rule 6(b).

¶ 12. The Johnson Court stated:

While we recognize that Rule 6(b)(1) provides for an enlargement of time “for cause shown,” when reading the two Rules together, it is apparent that Rule 4(h) requires “good cause” after the expiration of 120 days. Because Rule 4(h) is the specific rule applicable in today’s case and Rule 6(b)(1) is a general-application rule, the language in Rule 4(h) controls.

Id. Rule 4(h), however, is not.a specific rule governing a general rule because Rule 4(h) and Rule -6(b) are in no way contradictory. Rule 4(h) places a duty upon the trial court regarding service after 120 days and does not address enlargements of time. Rule 6(b), on the other hand, addresses enlargements of time and specifically notes the rules which remain unaffected by Rule 6(b). See M.R.C.P. 6(b). Notably, Rule 4 is not one of those rules. Therefore, if Rule 6(b) is meant to be read in conjunction with Rule 4(h), then a trial judge has discretion to grant a second (or third, fourth, fifth, etc.) enlargement of time to serve process “for cause shown” so long as the motion is “made before the expiration of the period ... as contended by a previous order.” Id. (emphasis added). Rule 6(b) provides that a trial judge may grant an enlargement of time, not establish a separate period of time, Thus, Rule 4(h) actually requires a good-cause showing after the expiration .of the 120-day period as enlarged by any court order pursuant • to Rule 6(b), not just after “the expiration of 120 days.” Contra Johnson, 982 So.2d at 413. Therefore, we overrule Johnson v. Thomas ex rel. Polatsidis, 982 So.2d 405, 412 (Miss. 2008), to the extent that it requires a party to show good cause instead of “ for cause shown” when a second motion for enlargement of time is filed before the expiration of the time provided under the prior enlargement. This holding is in conformity with a strict reading of the rules and.their unambiguous language.

¶ 13. While in Johnson the Court expressed concern about “successive extensions” granted upon a “showing [of] ‘cause’- as long as the next motion for extension is filed before the existing extension expires,” the Johnson Court erred by construing our rules in a manner that effectively added language to Rule 6(b). Johnson, 982 So.2d at 415. Though this concern is understandable, the remedy is to define “for cause shown” or “cause.”

¶ 14. To demonstrate “for cause shown” or “cause” to obtain an enlargement of time under Rule 6(b)(1), a party-must articulate a legitimate reason, made in good faith, as to why the enlargement of time should be granted. While this may not rise .to the level of Rule 4(h)’s “good cause” standard, it requires something constituting diligence or a legitimate reason excusing same. Collins, 184 So.3d at 929-930 (quoting Webster v. Webster, 834 So.2d 26, 28 (Miss. 2002)). This is not to say that continuous mistakes or inadvertence — while possibly made in good faith— would continue to satisfy Rule 6(b)’s “for cause shown” standard. Each case should be left to the discretion of the trial court so the judge can look to the totality of the circumstances to determine if “cause” is being shown in light of all facts and circumstances.

¶ 15. Under this definition, we are able to issue a decision in compliance with the strict reading of Rule 6(b)(1) while, at the same time, ensuring that parties seek to perfect timely service of process. Further, this holding will not lead to unending litigation! Plaintiffs will be held to this “for cause shown” standard to obtain any enlargement of time, including the initial enlargement. Likewise, defendants still can challenge whether “cause” was- shown. Also, a trial court’s determination of cause will be reviewed under an abuse-of-discrétion standard as with any other “fact-based finding.” See Collins, 184 So.3d at 929.

¶ 16. Because Jackson’s second enlargement of time was sought within the time permitted by the first enlargement, only “cause” needed to be shown to obtain the enlargement of time. Under the facts of this case, we find that Jackson articulated “cause” to obtain the second enlargement of time to serve process. Jackson continuously sought to determine Fulgham’s exact location, and she filed- requests for en-

largements of time within the required time periods. Here, Fulgham was in prison, and the facts indicate that Jackson was misdirected' by the prison official’s statement that Fulgham would be brought back to Bolivar County. Further, there are no allegations that Jackson’s failure to serve Fulgham within the original 120-day period or the first enlargement was in bad faith. As Jackson articulated legitimate reasons, in -good faith, 'for the delay in service of process, cause was shown here.

B. The trial court’s finding of “good cause” was not an abuse of discretion.

¶ 17. We do not hesitate tó apply retroactively our clarification of the law to this case, as the trial court’s, finding of “good cause” was also not an abuse of discretion. Because we find that good cause was shown, Fulgham is not prejudiced by the fact that Jackson has to show only cause.

¶ 18. “To establish ‘good cause’ the plaintiff must demonstrate at least as much as would be required to show excusable neglect, ‘as to which simple inadvertence or mistake of counsel or ignorance of the rules usually does not suffice.’” Collins, 184 So.3d at 929-930 (quoting Webster v. Webster, 834 So.2d 26, 28 (Miss. 2002)). Even more, good cause requires a diligent effort on behalf of .the plaintiff to effectuate service in a. timely manner. Id. at 930. “What amounts to ‘good cause’ under any particular set of circumstances is necessarily fact-sensitive.” Id. (quoting Lindsey v. United States R.R. Bd., 101 F.3d 444, 446 (5th Cir. 1996)). Generally, good cause exists

when the failure is a result of the conduct of a third person; when the defendant has evaded service of process or engaged in misleading conduct; when the plaintiff has acted diligently; when there are understandable mitigating circumstances; or. when the plaintiff is proceeding pro se or in forma pauperis.

Foss, 993 So.2d at 379.

¶ 19. Here, the trial judge did not abuse his discretion by finding good cause justifying the second enlargement. Jackson timely sought enlargements of time to serve process and, as shown below, did provide the trial judge with specific details concerning her attempts to locate Fulg-ham. Based on the facts of this case and our deferential standard of review, we cannot conclude that the trial judge erred.

' ¶20. As shown in the complaint and summons, Jackson initially believed that Fulgham was housed at the Bolivar County Correctional Facility. When Jackson’s counsel first called the prison to inquire into Fulgham’s whereabouts, a prison official told counsel that Fulgham had been moved to Rankin County for processing — a temporary status. Then, in a later conversation with the same official, counsel was advised that Fulgham had been moved to Carroll County but would return in the near future to Bolivar County. At this time, Jackson timely sought the first enlargement of time due to Fulgham’s movement in the prison system. Counsel for Jackson then contacted the prison official again within the additional time permitted under the first enlargement and, from this conversation, learned that Fulgham’s return to Bolivar County was not imminent. Thereafter, because Fulgham had not been returned to Bolivar County as the prison official previously had stated, Jackson filed for a second, shorter, period of time to serve process. Jackson then timely served Fulgham within the time permitted by the second enlargement. ■

¶ 21. As noted above, good cause can be shown “when the failure [to serve process] is a result of the conduct of a third person” and where a plaintiff is diligent in seeking to serve process. Foss, 993 So.2d at 379. These facts show that Jackson diligently inquired into Fulgham’s whereabouts over the course of several months. Though Jackson did learn that Fulgham would be in Carroll County for. a period of time, she was not required to run out and attempt service the next day, especially given that the defendant was incarcerated (and, therefore, secure for future service) and she had been advised by proper officials that Fulgham would return ■ to Bolivar County shortly. Indeed, Jackson ■ sought the .second enlargement only after she learned that Fulgham,- in fact, would not be brought back to Bolivar. County in the near future. ■■

¶22. We also find that the trial judge did not err by finding that Fulgham’s incarceration1 created a mitigating circumstance. To be clear, incarceration, in and of itself, does not constitute “good cause.” In fact, we have even adopted a specific rule regarding service of process on persons in penal institutions. See Miss. R. Civ. P. 4(d)(3). But here,’Fulgham’s incarceration and movement through the prison system, Coupled with- the statements from the Bolivar County prison official Upon which Jackson relied, misdirected Jackson’s ability to serve Fulgham. Further, the trial judge was in the best position to'determine the difficulty of locating Fulgham, serving him while he was in jail as well as the effects of the interactions with the1 Bolivar County Jail officials.

¶ 23. Finally, we note that Jackson sought her first enlargement of time within the 120-day time period in Rule 4(h) and sought her second motion within the extra 120 days provided by the first enlargement. See Montgomery v. Smith-Kline Beecham, 910 So.2d 541, 547-48 (Miss. 2005) (“[A] plaintiff who — prior to expiration of the service period — files a motion representing that he or she has been unable to serve process, will more likely succeed in demonstrating diligence than a plaintiff who does nothing.”). Here, we find that Jackson demonstrated diligence in seeking to serve process upon Fulgham. To find otherwise would be to second-guess the learned trial judge as relates to several accepted grounds for a showing of “good cause” that support the plaintiff in this case.

¶ 24. Therefore, we find that good cause existed for Jackson’s delay in service of process. Jackson was diligent by continuously and timely inquiring into Fulgham’s whereabouts. Further, Jackson was misdirected by a third party. Jackson also filed timely motions for enlargements of time. Given our standard of review and the totality of the circumstances, the trial court did not err in finding good cause for Jackson’s second enlargement of time.

CONCLUSION

¶25. For the reasons above, we affirm the trial judge’s decision to deny the motion to dismiss. We remand this case to the trial court for further proceedings consistent with this opinion.

¶ 26. AFFIRMED AND REMANDED.

WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., KITCHENS, KING, COLEMAN, MAXWELL AND. BEAM, JJ., CONCUR.

      . The underlying facts concerning the car accident are not pertinent tó this appeal.