author: FREDERICKS HOMBERG WICKER, Judge. DUFRESNE, J., McMANUS, J.,

text:
    Iona Tate SMITH v. Robert Gloster SMITH.
    No. 08-CA-575.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 12, 2010.

      Terri M. Miles, Attorney at Law, Gret-na, LA, for Plaintiff/Appellee.
    Overton T. Harrington, Jr., Attorney at Law, Gretna, LA, for Defendant/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., CLARENCE E. McMANUS, WALTER J. ROTHSCHILD, FREDERICKA HOMBERG WICKER, and JUDE G. GRAVOIS.
   FREDERICKS HOMBERG WICKER, Judge.

|2In this proceeding for permanent spousal support, defendant/appellant Robert Smith timely appeals the trial court’s judgment finding that his ex-wife plain-tifRappellee Iona Smith was free from fault in the dissolution of the marriage and awarding Ms. Smith $2,000.00 per month in permanent spousal support. Mr. Smith raises the following issues: (1) Was the trial judge manifestly erroneous in finding Ms. Smith free from fault? (2) Did the trial judge err in finding Ms. Smith to be in need of support? (3) Did the trial judge abuse her discretion in setting the amount of permanent spousal support? (4) Did the trial judge abuse her discretion in refusing to grant Mr. Smith’s motion for new trial so that she could hear live testimony? For the reasons that follow, we reverse the judgment of the trial court and remand this matter for further proceedings consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

Mr. and Ms. Smith were married on October 20, 1984 in Marerro, Louisiana. They separated in September, 2002. Mr. and Ms. Smith had two children during the marriage, both of whom were adults at the time of these proceedings.

These proceedings began in 2003 with Ms. Smith’s petition for divorce and spousal support. Ms. Smith originally sought an immediate divorce based on Mr. |sSmith’s alleged adultery. Several months later, however, Ms. Smith amended the petition seeking a no-fault divorce pursuant to La. C.C. art. 103.1. After the parties stipulated that they had lived apart for more than six months without reconciliation and that they each desired to be divorced, the trial court granted a judgment of divorce on April 23, 2003.

Thereafter, on August 6, 2003, Mr. Smith and Ms. Smith agreed to an interim consent judgment as to spousal support only. Under the terms of the August 6, 2003 judgment, Mr. Smith agreed to pay Ms. Smith $800.00 bimonthly in temporary spousal support, retroactive from January 24, 2003. The parties also agreed that Mr. Smith was “in arrears in the amount of $2,400.00.” The parties further agreed that Mr. Smith would pay $1,200.00 per month to Ms. Smith until all arrears were paid. The issue of permanent spousal support was not addressed in the August 6, 2003 interim consent judgment.

On March 29, 2006, Ms. Smith filed a Rule to Determine Permanent Spousal Support. Ms. Smith contended that she was not at fault for the termination of the marriage, that her husband earned upwards of $200,000.00 per year as a “general contractor,” and that she was in need of permanent spousal support due to her inability to work.

In response to Ms. Smith’s request for permanent spousal support, Mr. Smith filed an answer in which he denied that he made $200,000.00 per year and alleged that Ms. Smith was “secretly holding] two sitting jobs in addition to [receiving] her social security check for lupus.” Mr. Smith contended that several of Ms. Smith’s allegations were false, including her ongoing adultery accusations, her allegation that a construction corporation existed, and that Mr. Smith was hiding money in a safe deposit box. With regard to his income, Mr. Smith alleged that he had never earned as much at $40,000.00 per year. As to fault, Mr. Smith |4alleged, as he had in previous pleadings, that a September 26, 2002 boiling water incident was the final cause of the dissolution of the marriage and that Ms. Smith was therefore at fault. In 2003, Mr. Smith had alleged that the separation occurred when Ms. Smith was taken to jail after she threw a pot of boiling water on Mr. Smith. Mr. Smith alleged that Ms. Smith was arrested after this incident and became the subject of a protective order in favor of Mr. Smith. Also, in his previous answer to the petition for divorce, Mr. Smith contended that Ms. Smith was at fault in the dissolution of the marriage because of her false and continuous accusations of adultery. In his answer, Mr. Smith denied ongoing extramarital adulterous relationships since 1996 and accused Ms. Smith of numerous falsehoods in her petition. Mr. Smith acknowledged that both he and Ms. Smith had committed adultery in the early 1990’s, but maintained that he and Ms. Smith had reconciled in 1996 and that he had not committed adultery' since that time.

On January 3, 2007, Ms. Smith was deposed. Ms. Smith was questioned extensively about the September 26, 2002 incident and her subsequent arrest. She was also questioned about her version of the events which occurred during the marriage and after the parties’ separation in 2002, Mr. Smith’s income, her earning capacity, and alleged inconsistencies and falsehoods in her earlier statements.

Both parties filed pretrial memoranda on February 12, 2007. In her pretrial memorandum, Ms. Smith first raised the issue of self-defense as to the September 26, 2002 boiling water incident. In the memorandum, Ms. Smith alleged that she threw hot water at Mr. Smith because Mr. Smith “came at Ms. Smith with a knife, cursing and yelling at her.” Furthermore, Ms. Smith alleged that “Mr. Smith did not have any injuries, and received no medical treatment as a result of the hot water.” Ms. Smith also alleged for the first time that Mr. Smith had been violent with her for years. Ms. Smith contended that the actions which resulted in her |5arrest did not amount to fault because they were a “reasonable or justifiable response to the other spouse’s provocative act.” (citing Goodnight v. Goodnight, 98-1892 (La.App. 3 Cir. 5/5/99), 735 So.2d 809, 812).

In his February 12, 2007 memorandum, Mr. Smith stated that he owned one truck, had one helper, and performed small-scale concrete pouring jobs. According to Mr. Smith, his total income never exceeded $2,000.00 per month.

Mr. Smith did not respond to Ms. Smith’s allegation that her actions on September 26, 2002 were committed in self-defense, presumably because his pretrial memorandum and Ms. Smith’s pretrial memorandum were filed on the same day. Mr. Smith denied that Ms. Smith was disabled due to lupus and that he owed Ms. Smith past due spousal support.

On February 13, 2007, the trial court continued the trial date on the Rule for Contempt and the Answer to May 14, 2007. Between February 13, 2007 and May 14, 2007, Mr. Smith neither sought to rerdepose Ms. Smith concerning her self-defense and ongoing violence claims, nor sought discovery from Ms. Smith as to the evidence she intended to produce in addition to her own testimony concerning her self-defense claim. On May 14, when the trial court again continued the trial, the parties agreed in open court to submit the matter on written memoranda. The trial court ordered that the memoranda be filed within thirty days.

Both parties filed trial memoranda on June 13, 2007. Along with her Trial Memorandum, Ms. Smith introduced into evidence various exhibits regarding Mr. Smith’s alleged ongoing verbal and physical abuse of Ms. Smith, the fact that she acted in self-defense during the September 26, 2002 boiling water incident, her disability due to lupus, her consequent inability to work, and evidence of Mr. Smith’s income.

|fiIn his trial memorandum, Mr. Smith argued that Ms. Smith was not disabled, that she was capable of working, that she knowingly made factual misrepresentations to the court by claiming that Mr. Smith had created a corporation for the purpose of hiding marital assets, that he did not have annual income of $200,000.00, and that Ms. Smith was at fault in the dissolution of the marriage as a result of the September 26, 2002 scalding water incident. Mr. Smith again demanded an offset against any spousal support for the payments he made between August-September 2003 and August 2005 when he alleged Ms. Smith lived again in the home and he paid the bills. Mr. Smith failed to respond to either Ms. Smith’s allegation that he threatened her with a knife on September 26, 2002 or her allegation of ongoing violence. Moreover, Mr. Smith introduced no exhibits into evidence at that time.

On July 10, 2007, the trial court issued a Judgment and Reasons for Judgment. The trial court found that “Iona Smith is free from fault in the causes giving rise to the break up of this marriage.” The trial judge also found Ms. Smith to be “disabled due to her diagnosis of lupus” and ordered Mr. Smith to “pay permanent support to [Ms.] Smith in the amount of $2,000.00 per month.”

On July 16, 2007, Mr. Smith filed a Motion for New Trial and Motion Under La. C.C.P. art. 1917 for Specific Reasons for Judgment on Each Issue as Required by Art. 1917; Motion For Reasons and Required Analysis of Permanent Support Award as Required by La. C.C. art. 112 and Motion for New Trial to Reduce Award to Limits Provided in La. C.C. art. 112 (the “Motion for New Trial”). In the Motion for New Trial, Mr. Smith urged that a new trial be granted for the presentation of testimony of live witnesses because the Court made statements in its Judgment without basis in the evidence introduced. Mr. Smith did not, however, object to the documents which were admitted into evidence on June |713. Mr. Smith argued that the trial court erred in finding Ms. Smith to be “free from fault” in the dissolution of the marriage. Mr. Smith further contended that the “breakup of the marriage was caused by [Ms. Smith’s] throwing boiling water on Mr. Smith, which led to her arrest by the Jefferson Parish Sheriffs Department.” In his Motion for New Trial, Mr. Smith did not address the evidence introduced by Ms. Smith on June 13, 2007 regarding self-defense in the September 26, 2002 boiling water incident and ongoing violence. As to the amount of spousal support awarded, Mr. Smith argued that no evidence was produced from which the court could find that his income was sufficient to support a permanent spousal award of $2,000.00 per month. He argued that the $2,000.00 per month spousal support award exceeded one-third of his net income. Mr. Smith pointed out that the court in its judgment did not find the amount of his net income, finding only that he had the means at his disposal to pay permanent spousal support and thereafter awarding the sum $2,000.00 to Ms. Smith. Mr. Smith also argued that the trial court failed to take into account Ms. Smith’s admission that she could work and had worked three days per week as a sitter.

Mr. Smith did not object to the portion of the judgment which found that he was entitled to a reimbursement claim against the community for mortgage payments he had made, although the judgment did not mention reimbursement for Ms. Smith’s living expenses he allegedly paid between either August-September, 2003 or November 2004 and August 2005. In his Motion for New Trial, Mr. Smith also sought wilt-ten reasons for the trial court’s July 10, 2007 judgment.

On July 24, 2007, Ms. Smith filed her Opposition to Defendant’s Motion for New Trial. Ms. Smith did not object to the portion of Mr. Smith’s motion in which he sought written reasons for the court’s decision. Otherwise, she argued that the court’s judgment was not contrary to the law and evidence. Ms. Smith contended |sthat the evidence she introduced on June 13, 2007 supported her claim that she acted in self-defense on September 26, 2002. Ms. Smith further contended that she proved that she reacted in response to Mr. Smith’s ongoing adulterous affairs and that she was in need of spousal support. Finally, she argued that the evidence she produced proved, without contradicting evidence, that Mr. Smith earned $7,000.00 to $8,000.00 per month post-Katrina. Ms. Smith admitted that she is capable of doing some light work such as a sitter for limited periods of time, provided her condition does not further deteriorate.

On July 30, 2007, Mr. Smith filed a Reply Brief To Opposition To Motion For Rehearing. As to the income issue, Mr. Smith argued in the reply memo that his actual income is clear from the bank records already introduced into evidence but that a new trial is needed to clarify obvious confusion. He argued that trial on briefs alone led the court into error and clearly the court needs a live trial to comply with La. C.C. art. 112’s requirement that actual income must be computed and justified.

In the Reply Brief, Mr. Smith for the first time contended that an “affidavit” executed by Ms. Smith’s sister, Deborah Jones, was erroneously admitted into evidence. Mr. Smith contended that if the court relied “at all” on the affidavit, then a new trial must be granted or the matter re-opened partially for counsel, if only by deposition, to cross-examine this witness. While Mr. Smith mentioned other affidavits introduced into evidence on June 13, 2007, he did not specifically object to those affidavits. He argued that even if the events described in the affidavits were true, the events described occurred many years earlier and that the parties thereafter reconciled. Mr. Smith did not specifically address Ms. Smith’s affidavit wherein she alleged that she threw boiling water at Mr. Smith on September 26, 2002 because Mr. Smith came at her with a knife. He argued that the September |s26, 2002 police report and Ms. Smith’s statements against interest in her deposition suffice to prove that she was at fault in the dissolution of the marriage. The September 26, 2002 police report was not introduced into evidence on June 13, 2007.

The Motion for New Trial was heard on October 4, 2007. At the hearing, both parties asked the trial court to provide additional written reasons for the July 10, 2007 judgment. The trial court agreed to the request.

On October 16, 2007, the trial court denied Mr. Smith’s Motion for New Trial. That same day, the court provided the following Reasons For Judgment:

[T]his Court finds that Ms. [Smith] is free from fault in the break-up of the marriage of Mr. Smith. This Court finds that although Ms. [Smith] did have an incident where she threw hot water at Mr. Smith, she acted “reasonably and justifiably” to protect herself from Mr. Smith’s violent and aggressive behavior.
Therefore, this Court finds [Ms. Smith] free from fault and finds her behavior to be reasonable and justifiable under the circumstances.

On October 23, 2007, Mr. Smith filed a Motion for Expedited Hearing on Motion For Findings Complying with the Requirements of La. C.C. art. 112 For Appeal Purposes and For Purposes of Motion For Contempt Brought by Ms. (the “Motion for Expedited Hearing”). The motion was later heard. At the hearing, the trial court agreed to provide additional written reasons for the July 10, 2007 judgment. More specifically, the trial court agreed to explain how it concluded that Mr. Smith was capable of paying $2,000.00 monthly in permanent spousal support.

On November 28, 2007, the trial court rendered the following Reasons For Judgment on Spousal Support Rendered July 10, 2007:

The Court further finds that the evidence presented, more particularly, Exhibit O, Robert Smith Construction Invoices; Exhibit S, Robert Smith discovery responses; and Exhibit T, Robert Smith’s bank statements from Regions Bank, indicates that Robert Smith has the means to support Ms. hoSmith as his income is believed to be greater than Six Thousand Dollars per month, and that $2,000 per month payable to Ms. Smith is one-third of his income.

This Court finds that Mr. Smith’s testimony is not credible.

STANDARD OF REVIEW

A trial court’s finding of fault is a factual determination and thus is subject to the manifest error standard of review. Thibodeaux v. Thibodeaux, 95-671, p. 5 (La.App. 5 Cir. 1/30/96), 668 So.2d 1269, 1272, writ not considered, 96-0549 (La.4/19/96), 671 So.2d 930. The standard of review for determining the amount of spousal support is one of abuse of discretion. Id., 95-671 at 7, 668 So.2d at 1272. The trial court is vested with great discretion in making post divorce spousal support determinations and its judgment as to whether the spouse has insufficient means for support will not be disturbed absent a manifest abuse of discretion. Ward v. Ward, 04-803, p. 5 (La.App. 5 Cir.1/25/05), 894 So.2d 499, 502. Nevertheless, the spouse claiming permanent periodic spousal support has the burden of proving necessitous circumstances or insufficient means for his or her maintenance. Id.

“But when the Court of Appeal decides that the trial court abused its discretion [in its spousal support or child support order], it is required to assess the evidence anew from the record and render a judgment on the merits as if it were a trial court, rather than to remand the case for further proceedings below.” Hogan v. Hogan, 549 So.2d 267, 271 (La.1989); See also Mathews v. Mathews, 614 So.2d 1287 (La.App. 2 Cir.1993). Thus, Hogan mandates de novo review of the merits by the appellate court where the trial court has abused its discretion in making an award of spousal support or child support. The Hogan mandate, however, is not a “bright line” rule applicable to all circumstances. Mathews v. Mathews, 614 So.2d 1287, 1291 (La.App. 2 Cir.1993) (examining Louisiana Supreme Court jurisprudence). For example, several cases have held that a remand is required when the trial court did not make an express determination as to each spouse’s fault. See, e.g., McCarty v. McCarty, 1998-2270 (La.App. 4 Cir. 3/31/99), 729 So.2d 1146.

ISSUES

Motion for New Trial — Live Testimony

Denial of a motion for new trial is an interlocutory and non-appealable judgment. Roger v. Roger, 99-765 (La.App. 5 Cir. 1/12/00), 751 So.2d 354, 356. However, the Louisiana Supreme Court has instructed the courts of appeal to consider an appeal of the denial of a motion for new trial as an appeal of the judgment on the merits when it is clear from the appellant’s brief that he intended to appeal the merits of the case. See, e.g., Punctual Abstract Co. Inc. v. U.S. Land Title, 09-91 (La.App. 5 Cir. 11/10/09) 28 So.3d 459 (citing Shultz v. Shultz, 2002-2534, p. 3 (La.App. 1 Cir. 11/7/03), 867 So.2d 745, 746-747). It is obvious from Mr. Smith’s brief that he intended to appeal the merits of this case. We will consider the appeal from the judgment on the merits pursuant to La. C.C.P. art. 2164.

Mr. Smith contends that the trial court erred in denying his Motion for New Trial to produce live testimony in this matter. Mr. Smith contends that the trial court erred in considering an affidavit introduced into evidence which “allege[d] that Ms. Smith poured scalding water on Mr. Smith ‘in self-defense’ and made this allegation for the first time in an Affidavit submitted with the trial brief.”

On February 12, 2007, Ms. Smith filed her Pre-Trial Memorandum wherein she argued for the first time that that her actions on September 26, 2002 were committed in self-defense. Mr. Smith did not respond to that claim.

| |2On May 14, 2007, the parties agreed in open court to submit the fault and permanent support trial to the court on memoranda in lieu of a trial in open court. Both Mr. and Ms. Smith were in court when counsel for Ms. Smith proposed this solution. Mr. Smith’s counsel agreed to submission of the case on memo-randa and asked for a thirty-day delay to prepare the memos. On May 14, 2007, while in open court, Mr. Smith made no mention of Ms. Smith’s claims of self-defense on September 26, 2002 and ongoing violence first raised in her February 13, 2007 Pre-Trial Memorandum. Nor did Mr. Smith ask for time to conduct discovery of these issues or to present his own deposition in response to Ms. Smith’s allegations.

On June 13, 2007, the parties simultaneously filed them Trial Memoranda. At that time, Ms. Smith introduced into evidence various exhibits. Among these were eight affidavits. These affidavits included Ms. Smith’s own affidavit in support of her allegation that Mr. Smith had been physically and verbally abusive to her for years and that on September 26, 2002 she was defending herself against a knife attack when she threw water on Mr. Smith. The other affidavits supported Ms. Smith’s allegation that Mr. Smith had abused her for years, that Mr. Smith was unfaithful to Ms. Smith, and that she is disabled from working. Additionally, Ms. Smith introduced other exhibits concerning prior incidents of violence, Mr. Smith’s income, and her disability and alleged inability to work. Mr. Smith introduced no evidence. Specifically, Mr. Smith did not introduce the September 26, 2002 police report into evidence.

The trial court rendered judgment on July 10, 2007. Between June 13 and July 10, 2007, Mr. Smith did not object to the introduction of affidavits or any other evidence Ms. Smith had introduced on June 13, 2007. Likewise, during that | ^interval, Mr. Smith did not move to supplement the trial record with his own affidavit or deposition or any other evidence.

An affidavit is generally inadmissible as hearsay, but hearsay evidence that is not objected to constitutes substantive evidence. See State v. Allen, 03-2418, p. 25 (La.6/29/05), 913 So.2d 788, 807, cert. denied,, 547 U.S. 1132, 126 S.Ct. 2023, 164 L.Ed.2d 787 (2006); Bourque v. Bouillion, 95-909, p. 5 (La.App. 3 Cir. 10/18/95), 663 So.2d 491, 494. On May 14, 2007, Mr. Smith agreed to try this case on memoran-da. When he did not object to the evidence admitted by Ms. Smith, including the affidavits between their admission into evidence on June 13, 2007 and July 10, 2007, he acquiesced in the admission of affidavits and other exhibits. In order to preserve an evidentiary issue for appellate review, it is essential that the complaining party enter a contemporaneous objection to the evidence or testimony and state the reasons for the objection. The general rule is that a rule of evidence not invoked is waived, and, hence, a failure to object to evidence waives the objection to its admissibility. Matthews v. Breaux, 04-958 (La.App. 5 Cir. 2/15/05), 896 So.2d 1146, 1150.

Ms. Smith chose to introduce exhibits into evidence supporting her claims of self-defense on September 26, 2002 and ongoing violence. Mr. Smith was made aware of these claims on February 12, 2007. He chose not to respond. Mr. Smith cannot now complain either of the mode of trial or that the trial court apparently utilized the affidavits in formulating its July 10, 2007 judgment.

Freedom from Fault

Mr. Smith contends that the trial court erred by finding Ms. Smith free from fault in the dissolution of the marriage. We disagree.

Permanent spousal support may only be awarded to a spouse who has not been at fault in the termination of the marriage. La. C.C. art. 112 (“[w]hen a | i4spouse has not been at fault ... that spouse may be awarded final periodic support”); Adams v. Adams, 389 So.2d 381, 382 (La.1980). “Fault” which will preclude support contemplates conduct or substantial acts of commission or omission by spouse violative of his or her marital duties or responsibilities. Simon v. Simon, 96-876 (La.App. 5 Cir. 5/14/97), 696 So.2d 68. Under La. C.C. art. 112, a spouse seeking permanent spousal support has the burden of proving freedom from fault. Batiste v. Batiste, 586 So.2d 643 (La.App. 5 Cir.1991). To constitute fault which will prohibit a spouse from permanent support, the spouse’s conduct must be not only of a serious nature but also be an independent contributory or a proximate cause of the separation. Pearce v. Pearce, 348 So.2d 75 (La.1977).

On November 28, 2007, the trial court issued Reasons For Judgment on Spousal Support Rendered July 10, 2007 wherein it determined that “Mr. Smith’s testimony [was] not credible.” However, Mr. Smith never testified before the trial court, nor did he introduce an affidavit, deposition, or statement on his behalf.

“[I]t is well settled that a trial court’s judgment and reasons for judgment are two separate and distinct legal documents, and appeals are taken from the judgment, not the written reasons for judgment.” McCalmont v. Jefferson Parish Sheriffs Office, 99-940, p. 6 (La.App. 5 Cir. 1/12/00), 748 So.2d 1286, 1290, unit denied, 00-0679 (La.4/20/00), 760 So.2d 1160. Thus, when trial court’s reasons for judgment are flawed, but the judgment is correct, the judgment controls, since reasons for judgment set forth the basis for the court’s holding and are not binding. Premier Games, Inc. v. State, Dept. of Public Safety and Corrections, Video Gaming Division, 99-0624, pp. 7-8 (La.App. 1 Cir. 5/12/00), 761 So.2d 707, 712.

Ms. Smith filed the following evidence into the record on the issue of fault:

|1B1. An Affidavit of Plaintiff executed by Ms. Smith on June 13, 2007. In the Affidavit of Plaintiff, Ms. Smith testified that on the date she was arrested for pouring scalding water on Robert Smith, she had confronted him about another adulterous affair and he became enraged and came on her with a knife; that Mr. Smith had physically and verbally abused her throughout the course of their marriage; that Mr. Smith had tried to kill her by running her car off the road while her children were in the car.
2. An Affidavit executed by Jerry Whatley on June 13, 2007. In the Affidavit, Mr. Whatley testified that he was personally aware of Mr. Smith’s physical and verbal abuse of Mr. Smith and that he had “never observed Iona Smith physically abuse Mr. Smith.”
3. An Affidavit executed by Deborah Jones on June 13, 2007. In the Affidavit, Ms. Jones alleged that “[s]he was following in the car behind Iona Smith when she fled from Robert Smith due to abuse and infidelity ... Robert Smith tried to kill Iona by running her car off the road.”
4. An Affidavit executed by Conrad Noel on June 13, 2007. In the Affidavit, Mr. Noel states that “[h]e was riding in the vehicle with Iona Smith when ... Robert Smith tried to kill her by running her car off the road.”
5. A ci’ime report wherein Mr. Smith was accused of simple battery against Ms. Smith.
6. A Jefferson Parish Sheriffs Office crime report form. In the space reserved for “Type of Report,” someone wrote “Complaint Ref. Harassing Phone Calls.” The report does not mention Mr. Smith or Ms. Smith by name.
7. A Jefferson Parish Sheriffs Office crime report form. In the space reserved for “Type of Report/Crime,” someone wrote “Harassing Phone Calls.” The report indicates that Ms. Smith made the complaint.
8. An undated Polaroid photograph of an African-American woman. On the bottom white area of the photograph, an unidentified person wrote “Doris Brown” and “Doris? Sexy.”
9. Ms. Smith’s deposition testimony of January 3, 2007 wherein she admitted throwing scalding water on Mr. Smith on September 26, 2002 but that she didn’t know the water was scalding; testified that Mr. Smith had had many adulterous affairs throughout the course of her marriage; admitted that she lied in her petition when she stated that she was not working and that she lived with her aunt not her mother.

hfiMs. Smith admitted in her deposition that she was the subject of a six-month protective order. She gave no testimony to justify throwing the water at Mr. Smith. Ms. Smith was also questioned about the alleged corporation, the safe deposit box, and Mr. Smith’s earnings. Ms. Smith testified that she did not know if corporation papers were filed with the secretary of state and that she knew that there was currently no safe deposit box. Ms. Smith maintained that Mr. Smith had previously had a safe deposit box. Ms. Smith testified that she knew Mr. Smith earned $200,000.00 per year because his insurer had audited him and told him he needed that much insurance. She could provide no documentation on that point. She also testified that Mr. Smith bought houses for women and a car for one. Ms. Smith additionally testified that she had found money in the shed and in a wall and that this was part of her basis for alleging that Mr. Smith earns $200,000.00 per year.

Ms. Smith admitted that she had been working for Rita Ashton for years, working five hours per day for three days per week. She testified that Ms. Ashton had died just recently. She testified that she was working for Ms. Ashton when she filed her petition for divorce in which she alleged that she was not capable of working. She also admitted that she was capable of working but had not been because Ms. Ashton died a month before her deposition.

We find that Ms. Smith presented sufficient evidence to prove by a preponderance of the evidence that she was free from fault in the dissolution of the marriage. We additionally find that Ms. Smith proved by a preponderance of the evidence that her September 26, 2002 acts were a “reasonable or justifiable response to the other spouse’s provocative act.” Ms. Smith additionally produced affidavits from several parties who testified on personal belief that Mr. Smith 117physically and verbally abused Ms. Smith. Mr. Smith, who introduced no evidence on June 13, 2007, failed to rebut Ms. Smith’s evidence on the issue of fault.

In addition, we note that we cannot consider the police report created after Ms. Smith allegedly threw a pot of boiling water on Mr. Smith on September 26, 2002 because Mr. Smith did not introduce the police report into the record. Evidence not properly and officially offered and introduced cannot be considered on appeal, even if the evidence is physically placed in the record. Ray Brandt Nissan v. Gurvich, 98-634 (La.App. 5th Cir.1/26/99), 726 So.2d 474, 476.

Accordingly, we find that the trial court was not manifestly erroneous in finding that Ms. Smith proved by a preponderance of evidence that she was free from fault.

Need of Support

Mr. Smith contends that the trial court erred in finding Ms. Smith to be disabled from lupus.

La. C.C. art. 112 provides, in pertinent part:

A. When a spouse has not been at fault and is in need of support, based on the needs of that party and the ability of the other party to pay, that spouse may be awarded final periodic support in accordance with Paragraph B of this Article.
C. The sum awarded under this Article shall not exceed one-third of the obli-gor’s net income.
(emphasis added)

Under La. C.C. art. 112, the trial court may award permanent spousal support to a spouse if it is determined that the spouse is not at fault and “is in need of support.”

Ms. Smith testified during her deposition that she had previously been diagnosed with lupus, an incurable chronic autoimmune disease. Ms. Smith 11 ^introduced medical records into the record indicating that she suffers from lupus, Sjogren’s syndrome, mixed connective tissue disease, polymyositis, dermatomyositis, and diffuse scleroderma. Ms. Smith further testified at her deposition that her only income at that time, other than occasional sitting jobs with elderly neighbors, derived from a monthly Social Security check. During the deposition, Ms. Smith admitted that she had previously worked as a sitter for Rita Ashton before Ms. Ashton passed away. According to Ms. Smith, she worked three days a week for Ms. Ashton. Ms. Smith admitted that she worked five hour's a day for Ms. Ashton and was paid $9.00 per hour.

Ms. Smith introduced her 2005 federal tax return into the record on June 13, 2007. The 2005 tax return indicates that Ms. Smith’s adjusted gross income for 2005 was $4,265.00, and that the entirety of Ms. Smith’s income for 2005 was “alimony received” from Mr. Smith. Ms. Smith listed her occupation as “Driver” on her 2005 federal tax return. Ms. Smith also introduced a letter from the Social Security Administration into the appellate record. The letter indicates that Ms. Smith received $809.00 from the Administration each month in 2005. Finally, Ms. Smith introduced a Monthly Income and Expense List into the record. Ms. Smith’s monthly income is listed as $809.00, and her total monthly expenses are listed as $2,769.00. On the bottom of the Monthly Income and Expense List, there is a notation which states “net amount needed $1,960.00.” Mr. Smith introduced no evidence to rebut Ms. Smith’s illnesses, limited income, or her earning capacity. Mr. Smith likewise did not challenge the Monthly Income and Expense List Ms. Smith introduced into the record.

We conclude that Ms. Smith established that she was “in need of support” under La. C.C. art. 112 after her divorce from Mr. Smith. Her only regular income was a monthly $809.00 check from the Social Security Administration. In 11S)addition, Ms. Smith admitted that she was capable of working approximately sixty hours per month as a sitter at a pay rate of $9.00 per hour. We conclude that Ms. Smith established that she is capable of earning approximately $1,849.00 per month between working as a sitter and receiving the check from the Social Security Administration.

Award,

Mr. Smith contends that the trial court erred in determining his income to be $6,000.00 per month and in ordering him to pay $2,000.00 per month in permanent spousal support. We agree.

A spousal support award cannot exceed one-third of the other spouse’s income. La. C.C. art. 112. La. C.C. art. 112(B) lists factors which the trial court must consider in determining entitlement to permanent support, including the income of the spouses, means and assets of the spouses, the liquidity of such assets, the financial obligations of the spouses, the respective earning capacities of the spouses, the time necessary for the recipient to acquire appropriate education, training, or employment, the. health and age of the parties and their obligations to support or care for dependent children, and any other relevant circumstances. La. C.C. art. 112(B).

The purpose of permanent spousal support is to provide a spouse in need with sufficient means for support, including expenses for food, clothing, shelter, transportation, medical attention, medicine, utilities, household expenses and income tax liability generated by the spousal support payments. See, e.g., Falterman v. Falterman, 98-158 (La.App. 5 Cir. 1/13/99), 726 So.2d 1023, 1026. Also included in the determination are reasonable and necessary automobile expenses. Thibodeaux v. Thibodeaux, 95-671 (La.App. 5 Cir. 1/30/96), 668 So.2d 1269. An award of permanent spousal support is never final. White v. White, 393_JajSo.2d 240, 241 (La. App. 1 Cir.1980). The modification of a support award does not require a heightened burden of substantial change of circumstances, rather, it requires only a showing of a change of circumstances as provided in La. C.C. art. 142 and La. R.S. 9:311. Stogner v. Stogner, 98-3044 (La.7/7/99), 739 So.2d 762, 765.

In its July 10, 2007 Judgment and Reasons for Judgment, the trial court ordered Mr. Smith to “pay permanent support to [Ms.] Smith in the amount of $2,000.00 per month.” In its November 28, 2007 Reasons For Judgment on Spousal Support Rendered July 10, 2007, the trial court noted that Mr. Smith’s “income is believed to be greater than Six Thousand Dollars per month.” However, the trial court never addressed the amount of support Ms. Smith needed, nor did it make a determination as to the earning capacity of Ms. Smith as required by La. C.C. art. 112. The trial court additionally failed to consider Ms. Smith’s current state of disability relative to her lupus diagnosis and her ability to work part-time as a sitter. Furthermore, the evidence relevant to Mr. Smith’s income simply does not support the trial court’s finding that he earned $6,000.00 per month.

Ms. Smith introduced Mr. Smith’s corporate bank statements into the record. The earliest bank statement in the record was for the period ending on January 31, 2006 and the last bank statement in the record was for the period ending on March 30, 2007. Thus, the bank statements in the record cover a total period of fifteen months. The bank statements include cancelled checks that Mr. Smith drew to obtain supplies for his concrete pouring business and to pay for his cellular telephone service. The bank statements also indicate when and in what amounts Mr. Smith deposited money into the bank account. Over a period of fifteen months, Mr. Smith deposited $35,519.10 into the bank account and spent |2i $14,584.20 in construction materials and cellular telephone expenses. Thus, Mr. Smith had $20,934.90 in income during that fifteen-month period, whieh equates to $1,395.66 in monthly income.

Ms. Smith also introduced several invoices into the record. The invoices describe concrete pouring work done by Mr. Smith in 1991, 1995, and 1998. The invoices also describe how much Mr. Smith was paid for each concrete pouring job. While the concrete pouring work done by Mr. Smith in those years appears to be commensurate with Mr. Smith’s current concrete work, we find that these invoices are too old to be considered in a computation of Mr. Smith’s current income. There is no support in the record for the trial court’s belief that Mr. Smith’s “income is ... greater than Six Thousand Dollars per month.”

Accordingly, we find that trial court abused its discretion in setting the amount of support. As previously mentioned, we have determined that Mr. Smith’s monthly income is $1,395.66. The trial court could therefore not have awarded Ms. Smith more than $465.22 in permanent spousal support. We agree that Ms. Smith proved that she was free from fault in the dissolution of the marriage, that Ms. Smith is in need of support, and that the trial court did not err in not granting the Motion for New Trial to permit testimony. Thus, we will reverse the judgment of the trial court and remand this matter for the purpose of recalculating Mr. Smith’s spousal support obligation in a manner consistent with this opinion.

CONCLUSION

Accordingly, the judgment of the trial court is reversed. This matter is remanded for recalculation of Mr. Smith’s permanent spousal support obligation. Costs of this appeal are taxed equally to Ms. Smith and Mr. Smith.

REVERSED; REMANDED.

DUFRESNE, J., dissents.

McMANUS, J., concurs in part and dissents in part.

DUFRESNE, J.,

Dissents.

hi respectfully dissent and would remand this matter to the trial court for a full evidentiary hearing, complete with live testimony.

McMANUS, J.,

Concurs in Part and Dissents in Part.

[J respectfully concur with the portion of the majority’s opinion which finds the trial court did err in determining Mr. Smith’s income and ordering him to pay $2,000.00 per month for permanent spousal support. Thus, I concur with the finding that the trial court’s judgment should be reversed.

I do, however, respectfully disagree with the finding that the trial court was not manifestly erroneous in finding Ms. Smith to be free from fault and the finding that she was in need of support. I believe the evidence presented to the trial court did not prove these findings. I also respectfully disagree with the majority’s finding that the trial court correctly denied Mr. Smith’s motion for new trial, which requested the presentation of live testimony.

I believe the trial court incorrectly made credibility determinations with regards to the parties, even though the matter was submitted by briefs only. Further, the evidence submitted by the parties was insufficient to establish the actual income of Mr. Smith. Therefore, I would remand this matter to the trial court for a full eviden-tiary hearing, complete with live testimony.


source: Caselaw Access Project

author: CLARENCE E. McMANUS, Judge.

license: Public Domain

text:
    LOUISIANA WELD & PRESS, L.L.C. v. LOUPE CONSTRUCTION and Consulting Company, Inc.
    No. 09-CA-720.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 12, 2010.

      Fred R. Defrancesch Attorney at Law, LaPlace, Louisiana, and James A. Harry, Attorney at Law, Springfield, Louisiana, for Defendant/Appellant.
    Robert L. Atkinson, Carroll Devillier, Jr., Breazeale, Sachse & Wilson, Attorneys at Law, Baton Rouge, for Plaintiff/Appel-lee.
    Panel composed of EDWARD A. DUFRESNE, JR., SUSAN M. CHEHARDY, and CLARENCE E. McMANUS, Judges.
   CLARENCE E. McMANUS, Judge.

*• IgPlaintiff, Louisiana Weld and Press, LLC (LWP) filed a petition for sums due on open account, (LSA-R.S. 9:2781), alleging that from April 17, 2006 through April 7, 2008, it leased certain equipment to Loupe Construction & Consulting Company, Inc. (Loupe). Loupe did not remit all the lease payments, and owed a balance of $79,570.00. LWP’s petition prayed for judgment of the principal balance, plus attorney fees as provided by R.S. 9:2781 (A). Loupe answered on October 14, 2008, alleging that it had purchased the equipment for $5,000.00, and that there was no lease agreement.

LWP filed a motion for summary judgment alleging that there were no issues of material fact and that it was entitled to summary judgment as a matter of law. In support of its motion, LWP attached the affidavit of Billy Joe Buzbee, manager of LWP, and LWP’s invoices and ledger sheets evidencing the amounts billed to Loupe. Loupe did not file an opposition to the motion for summary judgment prior to the hearing, nor did it appear at the hearing. Thereafter, on March 13, 2009, the trial court rendered judgment in favor of LWP, awarding to it the principle sum of $79,570.00 plus judicial interest, and attorney fees of $750.00.

On March 13, 2009, counsel for Loupe filed a motion for new trial, alleging that he did not have the summary judgment hearing on his calendar, and that he | awould have appeared at the hearing. LWP opposed the motion, arguing that Loupe did not assert sufficient grounds for the granting of a new trial. The trial court set the motion for hearing on May 7, 2009.

On May 6, 2009, Loupe filed an opposition to the motion for summary judgment alleging that he had purchased the equipment, however he did not include any documentation, in the form of affidavits or otherwise.

On May 15, 2009, the trial court denied Loupe’s motion for new trial. Loupe filed his motion for appeal on June 26, 2009.

In this appeal, defendant presents two issues for review. First he alleges that the trial court erred in determining that service (of the motion for summary judgment) was proper. Second he alleges that the evidence presented by plaintiff was insufficient to support the granting of the motion for summary judgment.

The record reflects that plaintiff filed its motion for summary judgment and supporting memorandum, certifying that it had been mailed to opposing party, as required by LSA-C.C.P. art. 1313. The hearing was originally set for January 12, 2009. It was defendant who requested a continuance from that date. The hearing was reset for March 3, 2009, pursuant to that motion filed by defendant and not by any pleading filed by plaintiff. At the hearing on the motion for new trial, defense counsel stated that he did not receive notice because the date had not been on his calendar, to which the trial judge specifically stated that he did not know why defendant counsel had -not put that date on his calendar because that date was specifically cleared with both counsel. In light of the trial court’s assertion that [4both counsel for plaintiff and defendant were informed of the hearing date, we find no merit to this allegation of error.

Second he alleges that the trial court erred in finding that the plaintiff carried its burden of proving each essential element of its case. In support of this argument, he alleges that the affidavit was defective because it was not based on the personal knowledge of the LLC, and as a fictitious entity it cannot have personal knowledge, and furthermore that the manager who signed the affidavit did not indicate he had personal knowledge, or state facts on which his personal knowledge would be based. He further alleges that the invoices attached to the motion should not have been considered because they were not certified nor do they have an affidavit asserting their correctness. Finally he argues that there are leases which are mentioned in the affidavit and not produced, or alternatively that these leases are oral and the plaintiff did not present corroborating evidence to prove this contract for lease that was over $500.00.

Summary judgments are reviewed de novo on appeal, with the reviewing court using the same criteria that govern the trial court’s determination of whether summary judgment is appropriate; whether there is any genuine issue of material fact, and whether the movant is entitled to judgment as a matter of law. Louisiana Safety Ass’n of Timbermen Self-Insurers Fund v. Louisiana Ins. Guar. Ass’n, 09-0023, 5-6, (La.6/26/09), 17 So.3d 350, 354. A motion for summary judgment will be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” LSA-C.C.P. art. 966(B). This article was amended in 1996 to provide that “summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action ... The procedure is favored and shall be |sconstrued to accomplish these ends.” LSA-C.C.P. art. 966(A)(2). Louisiana Safety Ass’n of Timbermen Self-Insurers Fund v. Louisiana Ins. Guar. Ass’n, supra.

The initial burden of proof remains with the mover to show that no genuine issue of material fact exists. LSA-C.C.P. art. 966(C)(2).

When a motion for summary judgment is made and supported, the adverse party may not rest on the allegations or denials of his pleadings but must set forth specific facts showing that there is a genuine issue for trial. LSA-C.C.P. art. 967. If the mover has made a prima facie showing that the motion should be granted, the burden shifts to the non-moving party to present evidence demonstrating that a material factual issue remains. The failure of the non-moving party to produce evidence of a material factual dispute mandates the granting of the motion. Crawley v. Coastal Bridge Co., Inc., 09-181 (La.App. 5 Cir.11/10/09), 24 So.3d 315; Fat Tuesday Cafe, L.L.C. v. Foret, 06-738 (La.App. 5 Cir. 2/13/07), 953 So.2d 821.

In this case, the plaintiff filed suit on open account on September 9, 2008 alleging that from April 17, 2006 through April 7, 2008, it sold and/or leased equipment to Loupe, and that the unpaid outstanding balance at the time of the filing of the petition was $79,570.00. Plaintiff further alleged that it was entitled to reasonable attorney fees pursuant to LSA-R.S. 9:2781(A).

Defendant, in its answer, alleged that there was no lease agreement. It contends that it had purchased the equipment for $5,000.00. It further contended that although it owned the equipment, it returned same to resolve “the situation,” and that despite request it was not given documentation of the return.

LSA-R.S. 9:2781 sets forth the law on open account. LSA-R.S. 9:2781(A) provides that:

In A. When any person fails to pay an open account within thirty days after the claimant sends written demand therefor correctly setting forth the amount owed, that person shall be liable to the claimant for reasonable attorney fees for the prosecution and collection of such claim when judgment on the claim is rendered in favor of the claimant. Citation and service of a petition shall be deemed written demand for the purpose of this Section. If the claimant and his attorney have expressly agreed that the debt- or shall be liable for the claimant’s attorney fees in a fixed or determinable amount, the claimant is entitled to that amount when judgment on the claim is rendered in favor of the claimant. Receipt of written demand by the person is not required.

In its motion for summary judgment, LWP presented the affidavit of Billy Joe Buzbee, Manager of LWP, who averred that Loupe rented four pieces of equipment between April 17, 2006 and December 27, 2007. The first piece of equipment, a double drum sheepfoot roller # RPU1373, was rented from May 27, 2006 until December 27, 2007, for a monthly rental of $1,635.00, and that Loupe purchased that piece of equipment on March 20, 2008 for $5,995.00. The rental payments owed on this piece of equipment totaled $31,065.00. The second piece of equipment, a double drum sheepfoot roller 48", was leased from May 16, 2006 until December 16, 2007 for a monthly rental of $1,635.00; this piece of equipment was not purchased by Loupe. The rental payments owed on this piece of equipment totaled $31,065.00. The third piece of equipment, a single drum sheepfoot roller, was leased from May 13, 2007 to May 17, 2007 for a weekly rental of $948.30; this piece of equipment was not purchased by Loupe. The rental payment owed was $948.30. The fourth piece of equipment, a double drum sheepfoot roller 48", was leased from July 21, 2006 to December 21, 2007 for a monthly rental of $970.10; Loupe did not purchase this piece of equipment. The rental payments owned on this piece of equipment totaled $16, 491.70. The total of the amounts owed to LWP was $79,570.00.

|7A1so attached to the motion for summary judgment were the invoices issued by LW/P, and a summary of those invoices reflecting the amounts already paid by Loupe.

LSA-R.S. 9:2781(D) defines “open account” as “any account for which a part or all of the balance is past due, whether or not the account reflects one or more transactions and whether or not at the time of contracting the parties expected future transactions.”

In this appeal, Loupe alleges that the affidavits and attachments are insufficient to support the summary judgment. It first contends that the affidavit is insufficient because the affiant is LWP, a fictitious entity that cannot execute an affidavit. It next contends that Mr. Buzbee did not indicate personal knowledge or specify specific facts on which his knowledge is based. He further alleges that the invoices were neither certified nor attached to an affidavit attesting to their authenticity, and therefore cannot be considered.

Loupe also contends that the affidavit referred to missing documents, namely the lease agreements. Alternatively, if the leases are oral, the evidence is insufficient to prove an oral contract over $500.00 are required by LSA-C.C. art. 1846.

We find no validity to Loupe’s claims that the affidavit at issue is insufficient and that the invoices are not authenticated. The fact that LWP is what appellant calls a “fictitious entity” does not invalidate the affidavit. Mr. Buzbee, manager of LWTP, signed the affidavit and referenced the invoices as LWP’s “duly authorized representative.” In the affidavit he attests that he has sufficient knowledge to execute the affidavit, and that the exhibits attached “are correct and true to the best of [his] knowledge, information, and belief.” There is no defect to the evidence offered by plaintiff.

|8Loupe next contends that LWP presented insufficient evidence to prove the existence of an oral lease agreement. In support of his contention he cites to LSA-C.C. art. 1846. LW/P counters that this suit is not for breach of contract, but rather a suit on open account and therefore Article 1846 is inapplicable.

In Heck v. Lafourche Parish Council, 02-2044 (La.App. 1 Cir. 11/14/03), 860 So.2d 595, writ denied, 04-0067 (La.3/19/04), 869 So.2d 837 the court noted that “the mere fact that a claim is based on an underlying contract between the parties does not prevent a party from asserting recovery under open account. Indeed, an open account necessarily involves some type of contractual relationship between the parties.” In Sandair Corp. v. Davis Industries, 470 So.2d 279 (La.App. 5 Cir. 5/13/85), this Court found that a rental contract for a heavy-duty commercial air compressor was within the scope of LSA-R.S. 9:2781.

The party that sues on an open account has the burden of proving the contract. Mattix Cabinet Works, Inc. v. Witt, 625 So.2d 527 (La.App. 5 Cir.1993); Murco, Inc. v. Streeter Service Electric, Inc., 41,599 (La.App. 2 Cir. 11/1/06), 942 So.2d 690. The underlying contract that forms the basis of this open account suit are the oral rental agreements.

LSA-C.C. art. 1846 provides for proof of unwritten contracts, requiring that “If the price or value is in excess of five hundred dollars, the contract must be proved by at least one witness and other corroborating evidence.” A plaintiff may offer his own testimony in support of his claim; however the other circumstances which corroborate the claim must come from a source other than the plaintiff. John Cherbonnier Construction v. Big Easy Roofing, Inc., 05-803 (La.App. 5 Cir. 3/14/06), 926 So.2d 587, 589-590. Only general corroboration is required. It is not necessary that plaintiff offer independent proof of every detail. Peter Vicari General Contractor, Inc. v. St. Pierre, 02-250 (La.App. 5 Cir. 10/16/02), 831 So.2d 296, 301.

In John Cherbonnier Construction, supra, subcontractor plaintiff filed suit against the general contractor for unpaid materials and labor, and against the homeowner seeking to enforce a materialman/la-borer lien. At issue in the appeal was whether there was on oral contract between the subcontractor and the roofing company. During trial on the merits, Cherbonnier introduced his testimony, and he entered into evidence receipts, his company’s payroll register and his lien affidavit. In finding that Chei’bonnier had not met its burden of proof, this Court said that all of the extrinsic evidence came from Cherbonnier himself and therefore there was no independent corroboration of his claim.

In Murco, Inc. v. Streeter Service Electrical, Inc., supra, plaintiff filed suit on open account, seeking to recover for materials sold to defendant and shipped to defendant’s client. Defendant contended that he did not have an open account contract with plaintiff and that while he performed the work, but it was the client who was responsible for the material. At trial, corroborating evidence to support plaintiff’s claim consisted of and invoice prepared by plaintiff, and testimony of one of plaintiffs employees. On appeal, the court found that adequate proof of the oral contract under LSA-C.C. art. 1846 was lacking.

In this case, the evidence consisted of the testimony of LWP’s manager, and invoices that were attested to by the same general manager in the same affidavit. Considering the foregoing codal articles and jurisprudence, we find that plaintiff did not present sufficient evidence of every element of his case so as to support the summary judgment rendered. Accordingly, we vacate the trial court’s ruling granting summary judgment and remand this matter for further proceedings.

VACATED AND REMANDED

      . Defendant's opposition to the motion for summary judgment states in its entirety that:
      The Answer filed in this matter is clear that Loupe Construction and Consulting Company, Inc. was purchasing the equipment in question. Loupe Construction paid for this equipment which was older than the hills and he had to repair the equipment to make it work. When it became an issue, we returned the equipment rather than fight the defendants. This is a question of fact that the court needs to determine.
      My client’s answer suffices and no additional affidavit is needed.


author: FREDERICKA HOMBERG WICKER, Judge.

text:
    CITY OF KENNER v. KENNER MUNICIPAL FIRE & POLICE CIVIL SERVICE BOARD.
    No. 09-CA-465.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 12, 2010.

      Alvin J. Bordelon, Jr., Attorney at Law, Metairie, LA, for Plaintiff/Appellee.
    Gilbert R. Buras, Jr., Attorney at Law, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges WALTER J. ROTHSCHILD, FREDERICKA HOMBERG WICKER, and JUDE G. GRAVOIS.
   FREDERICKA HOMBERG WICKER, Judge.

12This is a civil service disciplinary case. Former City of Kenner firefighter Alvin Langsford appeals the judgment of the Twenty-Fourth Judicial District Court which vacated the Kenner Municipal Fire and Police Civil Service Board’s decision to reinstate Mr. Langsford as a Kenner firefighter and maintained Mr. Langsford’s termination proscribed by the City of Ken-ner, the appointing authority.

Mr. Langsford specifies two errors to the proceedings below. First, Langsford contends that the district court was manifestly erroneous in reversing the civil service board’s decision by misapplying the standard of review set forth in La. R.S. 33:2501(E)(3). Second, in the event that his employment is found to have been properly terminated, Langsford contends that the district court was manifestly erroneous in failing to hold that he was denied his constitutional due process rights. For the reasons that follow, we affirm the judgment of the district court.

| .PROCEDURAL HISTORY

On September 12, 2005 Kenner Fire Captain David Schilling wrote two reports to Fire District Chief Larry Negrotto concerning Mr. Langsford’s conduct on September 3 and September 9, 2005. These incidents involved a September 3, 2005 incident wherein Mr. Langsford allegedly brandished a gun, a September 9, 2005 incident wherein Mr. Langsford allegedly was out of uniform and a September 9, 2005 incident in which Mr. Langsford allegedly abandoned his post. On September 13, 2005 Mr. Langsford was relieved of duty without pay until further notice. Thereafter, on October 4, 2005, Mr. Langs-ford’s attorney wrote to Kenner Fire Chief Michael Zito demanding the Kenner Fire Department give reasons for its actions taken against Mr. Langsford. On October 21, 2005 Fire Chief Zito notified Mr. Langsford that his “Firefighter Meeting” was scheduled on October 24, 2005. This meeting, characterized by the City of Ken-ner as a “Pre-Disciplinary Conference,” took place as scheduled. Attending in person were Fire Chief Zito, Kenner Chief Administrative Officer Philip Ramon, Ken-ner firefighter and Civil Service Board member Michael Giarrusso, and Mr. Langsford. Mr. Langsford’s counsel attended by phone. At the conclusion of Chief Zito’s presentation Mr. Langsford was given an opportunity to respond. He did so by letter dated October 28, 2005. On November 16, 2005 the City of Kenner terminated Mr. Langsford effective that day.

Chief Zito informed Mr. Langsford in the termination letter that he was being terminated for three incidents, a September 3, 2005 incident which involved a firearm, a September 9, 2005 incident which involved Mr. Langsford being out of uniform and a September 9, 2005 incident which involved leaving his post without authorization. According to the letter, the City also took into | consideration the fact that Mr. Langsford had previously been terminated on from his position on November 22, 2004. At that time, Langsford was a fire captain and had been a member of the Kenner Fire Department for approximately 21 years. Langsford was terminated from his position for harassing and ridiculing subordinates, exposing the City of Kenner to legal liability, and demoralizing his platoon. The City of Kenner subsequently reinstated Mr. Langsford following his November 22, 2004 termination. The City of Kenner and Mr. Langsford executed a Reinstatement Agreement in anticipation of Mr. Langsford’s return to the Kenner Fire Department. Under the terms of the Reinstatement Agreement, Mr. Langsford was demoted to the rank of firefighter and ordered to serve a 45-day suspension without pay. However, Mr. Langsford was allowed to retain his departmental seniority.

Mr. Langsford appealed his November 16, 2005 termination to the Civil Service Board. Michael Giarrusso, the Kenner firefighter and member of the Civil Service Board who attended the Pre-Disciplinary Meeting with Mr. Langsford, recused himself from the Civil Service Board’s proceedings. The remaining four members of the Civil Service Board heard Mr. Langs-ford’s appeal on May 15, 2006 and June 27, 2006. Multiple witnesses testified and many documents were introduced into evidence on those two dates. After deliberating, the Civil Service Board was unable to make a decision by the concurrent votes of three members as required by La. R.S. 33:2501(D). Accordingly, the Civil Service Board affirmed the City of Kenner’s action. Mr. Langsford appealed the Board’s decision to the district court. While that appeal was pending the Civil Service Board vacated its decision and agreed to hear the matter again with a reconstituted Board of five members.

IfiOn October 1, 2008 the reconstituted Civil Service Board took up this matter again. The Board agreed to hear the matter based upon the 2006 testimony. After hearing the parties’ arguments the Board went into executive session. On that date the Civil Service Board unanimously found that the appointing authority acted “[in an] arbitrary and capricious [manner] and without cause in the termination of A1 Langsford with regard to the three incidents in his personnel action form dated November 16, 2005.” The Civil Service Board thereby rescinded Mr. Langsford’s termination. The Civil Service Board made the following findings of fact:

Gun Incident: His actions were not inappropriate considering the exigent circumstances in the aftermath of Huri’icane Katrina
Uniform: His actions were not inappropriate considering the exigent of circumstances in the aftermath of Hurricane Katrina
Abandonment of Post: Did not abandon post. Pie called dispatch and informed his captain he was leaving.

On October 16, 2008 the City of Kenner filed its appeal from the Civil Service Board’s decision in the Twenty-Fourth Judicial District Court. On October 20, 2008 the Civil Service Board amended its findings to indicate the vote was two members to affirm the City of Kenner’s action and three votes opposing the City’s action against Mr. Langsford.

By judgment dated April 9, 2009, the trial court vacated the Civil Service Board’s decision and maintained the discipline proscribed by the appointing authority. In his reasons for judgment, the trial court found that the Civil Service Board’s decision was not made in good faith for cause. The trial judge opined that the Civil Service Board hears and determines if the appointing authority was arbitrary and capricious regarding its disciplinary action. The court opined that the Civil Service Board acted beyond the scope of its authority and substituted its own ■Judgment for that of the appointing authority. The trial court noted that it is charged with the duty to determine whether the Board’s decision was in good faith for cause and should only overturn the decision of the board if the Board was manifestly erroneous. The trial court additionally noted:

The Kenner Fire Department had a rational basis to terminate Mr. Langsford. Furthermore, because several Board members voted to uphold the appointing authority’s discipline, it stands to reason by definition the appointing authority could not have been arbitrary and capricious.

The trial court concluded that the Ken-ner Fire Department did not act arbitrarily and capriciously in disciplining Mr. Langsford. Mr. Langsford timely filed this appeal.

FACTS

The relevant facts underlying the instant appeal took place shortly after Hurricane Katrina made landfall in southeastern Louisiana on August 29, 2005.

The Firearm Incident

On September 3, 2005, the crew of Engine 378 was returning to the fire station with Captain David Schilling in command. Mr. Langsford was a firefighter on Engine 378 at the time. Rhonda Knowles, Randy Ayo, and Lee Stoltz were also aboard Engine 378 at the time. Mr. Ayo had brought his revolver on the fire truck for protection. As Engine 378 arrived at a red light on Loyola Avenue, Mr. Langsford saw three men fighting in the parking lot of a gas station. One of the men allegedly had a lead pipe. At the Civil Service Board hearing, Ms. Knowles testified that Mr. Langsford yelled for the truck to stop. However, Mr. Langsford denied yelling for the truck to stop.

Mr. Langsford testified at the hearing that he “asked” Mr. Ayo for his pistol after the fire truck had stopped because he was concerned about the situation. Ms. 17Knowles testified that Mr. Langsford screamed “give me the gun, give me the gun” at Ayo. Mr. Ayo gave Mr. Langsford the pistol. Mr. Langsford thereafter jumped out of the fire truck and walked towards the men who were fighting. Mr. Langsford yelled at the men and told them to stop fighting. During the Civil Service Board hearing, Mr. Langsford testified that he told two of the men to proceed in one direction and the other man to proceed in the opposite direction. Mr. Langsford admitted that he did not know whether the men who were fighting had guns when he began walking towards them.

It is not clear from the record whether Mr. Langsford pointed the pistol at the men who were fighting. During his deposition, Mr. Langsford testified that the gun was in his right hand and was “plainly visible to the assailants so that they would know we were armed.” Mr. Langsford further testified that he pointed at the men with his left hand and told them to disperse. At the Civil Service Board healing, Mr. Ayo testified that Mr. Langsford did not point the gun at the three men. In its findings of fact, the Civil Service Board determined that Mr. Langsford pointed the gun at the men. The parties do not dispute that Kenner Police Department officers arrived seconds after Mr. Langsford displayed the pistol or that Engine 378 thereafter returned to the station without incident.

At the Civil Service Board hearing, Ms. Knowles testified that she was not comfortable when Mr. Langsford drew the pistol. Conversely, Mr. Stoltz testified that he “had no problem with [Mr. Langsford drawing the pistol].” Similarly, Mr. Ayo testified that he gave Mr. Langsford his pistol because he knew that Mr. Langsford had previous military training. Ms. Knowles testified that although she was not troubled by firefighters carrying weapons for self-protection, she was not comfortable with Mr. Langsford drawing the pistol.

|sMs. Knowles further testified that her concerns about Mr. Langsford’s conduct were exasperated after the firearm incident. According to Ms. Knowles, firefighters in the station house frequently discussed the lawlessness reported by the media in the aftermath of Hurricane Katrina. Ms. Knowles testified that Mr. Langs-ford told her “if someone walks past this station we will shoot them, throw a rock at the station, at the window and say they were breaking in.” Ms. Knowles indicated her concern to Captain Dennis Crocker and told him that she was uncomfortable being at the station with Langsford unless a member of command was present.

Captain Schilling, Mr. Langsford’s direct supervisor, met with Mr. Langsford several times after the incident. According to Captain Schilling, he told Mr. Langsford that it was never appropriate to “pull a weapon on a citizen.” Mr. Langs-ford acknowledged during the Civil Service Board hearing that Captain Schilling told him he had acted inappropriately in drawing the gun. Schilling reported the firearm incident to his supervisor Fire District Chief Larry Negrotto. On September 12, Schilling created a written report regarding the firearm incident and noted that his report was meant to document the verbal report he made to Chief Negrotto. The September 12 report indicates that Mr. Langsford got off the truck and aimed a revolver at the three citizens. The report further indicates that Schilling had a “firm talk” with Mr. Langsford and that Schilling feared for the safety of his crew during the firearm incident.

Capt. Schilling testified before the Civil Service Board about the firearm incident, however, the testimony was not transcribed due to radio interference. The secretary of the Civil Service Board took the following notes during Capt. Schilling’s testimony:

[i,The fire truck was on Loyola going south. He heard stop the truck. The truck stopped. A1 Langsford had a weapon going toward three individuals. The men were getting ready to fight. One had a lead pip [sic] and it was lifted. Within ten seconds the Police Department arrived. Lee Stoltz, A1 Langsford, Rhonda Knowles, and Randy Ayo were the firemen on the truck.

The November 16, 2005 termination letter noted that Mr. Langsford’s actions during the firearm incident “jeopardized the safety of the entire crew and could have resulted in serious injury to the crew.”

The Uniform Incident and the Abandonment Incident

On September 8, 2005, Mr. Langsford became dehydrated while fighting a fire. Mr. Langsford received medical attention at East Jefferson Memorial Hospital. His immediate supervisor, Captain Dennis Crocker, thereafter placed Mr. Langsford on “rest and relaxation time” (“R & R”).

The parties do not dispute that firefighters on R & R were “second responders,” meaning that they would have to respond to a dispatch if first responders were not available. In addition, the parties do not dispute that Kenner’s R & R policy was not written down and that the policy was only instituted after Hurricane Katrina.

However, the parties strenuously dispute under what conditions firefighters on R & R were permitted to leave the fire station, if at all. Crocker testified during the Civil Service Board hearing that firefighters on R & R “were able to leave, under my understanding, once they notified their officer that they were, their supervisor that they were leaving, which would be the captain of the station.” Chief Negrotto agreed but added that firefighters also had to “call out” by informing their dispatcher that they were leaving the station. Chief Negrotto testified if a firefighter wanted to leave for an extended length of time, he would have to clear it with his immediate supervisor. Chief Negrotto additionally noted that if a firefighter wanted to leave for an extended period, he would be due back at l,flthe station at his next regular tour of duty. Captain Mike Dunn testified that immediately after Katrina, firefighters only had to inform their captains that they were going on R & R. According to Captain Dunn, as the R & R policy developed, supervisors began requiring firefighters to call out to leave the station. Dunn also indicated that each captain handled the R & R policy differently. Deputy Chief Brian McKnight testified that if a firefighter wanted to take a short amount of time to attend to personal matters, he could do so by advising his captain. However, if a firefighter wanted to take more time off, he would have to “clock out,” meaning he would not be paid for that time. Mr. Langsford testified that if a firefighter wanted to leave for less than two hours, he would have to call out but would be paid for the time. However, if a firefighter wanted to leave for more than two hours, he would have to call out and inform his captain. Mr. Langsford additionally indicated that if a firefighter wanted to leave for more than two hours, he would not be paid for that time. Assistant Chief Roy Gautreaux testified if a firefighter wanted to leave during his shift, he would have to inform his captain. According to Chief Gautreaux, before the firefighter could leave, the firefighter’s captain would then have to obtain permission from his supervisor.

On the morning of September 9, 2005, Chief Negrotto observed Mr. Langsford wearing an LSU shirt, camouflage pants, and a hat in the fire station. Chief Neg-rotto immediately informed Mr. Langsford that he needed to change into clothes that would properly identify him as a fireman. Chief Negrotto testified that Kenner firefighters were not required to observe full uniform dress during Katrina’s aftermath due to clothing shortages and laundry problems. However, Chief Negrotto believed that it was important that the firefighters wear something identifying them as such. Chief Negrotto testified that many firefighters were wearing Kenner Fire Department T-shirts.

InMr. Langsford told Chief Negrotto that he was on R & R time and did not have any appropriate clean clothes to wear. Chief Negrotto told Mr. Langsford that his being on R & R merely meant that he would be a second responder rather than a first responder.

At approximately 4:00 PM on September 9, Chief Negrotto saw Mr. Langsford at the fire department’s fuel depot. Mr. Langsford was still wearing the LSU shirt, camouflage pants, and the hat that he had been wearing that morning. Chief Neg-rotto again told Mr. Langsford that he had to change into more appropriate clothes. Chief Negrotto thereafter had a conversation with Fire Chief Larry Zito about Chief Langsford’s conduct. Negrotto testified that Chief Zito wanted to “knock Langsford off the clock.” Chief Zito allegedly told Chief Negrotto that he wanted Chief Negrotto to relieve Mr. Langsford of duty. Chief Negrotto then talked to Assistant Chief Mike Michel about relieving Mr. Langsford of duty. Chief Negrotto asked Michel “to go down to the station with me in case there was trouble.” Chief Michel told Mr. Langsford that he was not going to relieve Mr. Langsford and that he would talk to Chief Zito. Afterwards, Chief Negrotto told Mr. Langsford that a decision was being made as to whether or not to send Mr. Langsford home. At the Civil Service Board hearing, Chief Negrotto indicated that he considered Mr. Langsford to be a danger to other members of the Kenner Fire Department “under the right circumstances.”

At approximately 9:00 PM on September 9, Mr. Langsford left the fire station and returned home. The parties do not dispute that Mr. Langsford left his post. The parties do dispute the circumstances surrounding Mr. Langsford’s departure. During the Civil Service Board hearing, Mr. Langsford alleged that he informed Schilling that he had to leave, called out to his dispatcher, and went home 112pursuant to the R&R policy. Mr. Langsford further testified that he went home because he had learned that his elderly aunt had not survived Hurricane Katrina. Mr. Langsford admitted that he did not tell Schilling that he was leaving because his aunt had passed away. According to Mr. Langsford, Captain Schilling had no response when he told Captain Schilling that he was clocking out.

Captain Schilling testified that Mr. Langsford had previously become aware that his supervisors were contemplating whether to discipline him for the firearm incident and the uniform incident. According to Captain Schilling, Mr. Langs-ford told him “[i]f they can’t make up their mind, I’ll make it up for them” and left his post. Captain Schilling confirmed that Mr. Langsford did not mention that his aunt had died. Mr. Langsford denied telling Captain Schilling “[i]f they can’t make up their mind, I’ll make it up for them.”

Captain Schilling made a report after the abandonment incident. The report indicates that “[Mr. Langsford] packed up his belongings and called out. He did not wait for the authorization from a chief officer to leave. After he left, I informed D/C Negrotto.” The station log similarly indicates that on 9:19 PM “FF Langsford called out. He was informed that a decision was being made as to whether he would be sent home. He made the decision to leave without authorization from a chief officer.”

The Civil Service Board’s secretary took the following notes during Captain Schilling’s testimony:

R&R- — firefighters were put on second/and or back up truck. First truck rolled. Firefighters informed captains and could leave for a couple of hours. Langsford did inform and call out.
R&R was not in writing from administration. Everyone was told of R&R.

| [SMr. Langsford did not report to the station until September 13, which was the start of his next official tour of duty. After he arrived, dispatch told Mr. Langs-ford to return to his official place of residence. Mr. Langsford never again worked for the Kenner Fire Department.

FIRST SPECIFICATION OF ERROR

The Kenner Fire Department is a classified civil service sj'stem governed by a statutory system established by Title 33, Chapter 5, Part II, of the Louisiana Revised Statutes. See, e.g., Giarrusso v. City of Kenner, 04-69 (La.App. 5 Cir. 5/26/04), 875 So.2d 872, 875. As a firefighter, Mr. Langsford is a classified civil servant.

A classified civil servant is afforded protection in disciplinary actions taken without cause pursuant to La. Const. art. 10, § 8(A). See also Adams v. Jefferson Parish Department of Community Action Programs, 02-1090 (La.App. 5 Cir. 4/29/2003), 845 So.2d 1147; Lewis v. Jefferson Parish Dept. of Public Works, 99-16 (La.App. 5 Cir. 5/19/99), 761 So.2d 558, unit denied,, 99-2906 (La.1/14/00), 753 So.2d 215. The appointing authority is charged with the operation of its department, and it is within its discretion to discipline an employee for sufficient cause. Pope v. New Orleans Police Dept., 2004-1888, p. 5 (La.App. 4 Cir. 4/20/05), 903 So.2d 1, 5-6. A dismissal of a civil servant “for cause” is synonymous with legal cause. Lewis, 761 So.2d at 559. Legal cause for disciplinary action exists if the facts found by the commission disclose that the conduct of the employee impairs the efficiency of the public service. Id. The civil service provisions of the Louisiana Constitution are designed to protect public career employees from political discrimination, such that “ ‘non-policy forming’ public employees are selected on the basis of merit and can be discharged only for insubordination, incompetency, or improper conduct, and not for religious or | ^political reasons.” Bannister v. Dep’t of Streets, 95-404, pp. 4-5 (La.1/16/96), 666 So.2d 641, 645.

La. R.S. 33:2501(A) provides that a classified fire or police department employee who has been disciplined may demand a hearing and investigation by the local municipal fire and police civil service board to determine the reasonableness of the action. The Civil Service Board is vested with broad and general rulemaking and subpoena powers for the administration and regulation of the classified service, including the power to adopt rules for regulating employment, promotion, demotion, suspension, reduction in pay, and removal. La. Const, art. 10, § 10(A)(1). The Civil Service Board may additionally make recommendations with respect to employee training and safety. Id. Moreover, the Civil Service Board has a specific duty pursuant to La. R.S. 33:2501 to hear and decide appeals by classified employees who contend that they were subjected to arbitrary and capricious discipline by command.

At the hearing, the appointing authority has the burden of proving, by a preponderance of the evidence, that the complained of activity or dereliction occurred, and that such dereliction bore a real and substantial relationship to the efficient operation of the appointing authority. Cure v. Dept. of Police, 2007-0166, p. 2 (La.App. 4 Cir. 8/1/07), 964 So.2d 1093, 1094, citing Marziale v. Dept. of Police, 2006-0459, p. 10 (La.App. 4 Cir. 11/8/06), 944 So.2d 760, 767. The civil service board has a duty to decide, independently from the facts presented, whether the appointing authority has good and lawful cause for taking disciplinary action and, if so, whether the punishment imposed is commensurate with the dereliction. La. R.S. 33:2561. The civil service board must also determine whether the imposed punishment was commensurate with the dereliction. City of Kenner Fire Dept. v. Kenner Mun. Fire and Police Civil Service Bd., 99-86 (La.App. 5 Cir. 6/1/99), 738 So.2d 114, 116. The Board is not free to simply substitute its judgment for that of the appointing authority. Id.

An employee or the appointing authority may appeal any decision of the civil service board to the district court wherein the civil service board is domiciled. La. R.S. 33:2501(E)(1). An appeal to the district court “shall be confined to the determination of whether the decision made by the board was made in good faith for cause.” La. R.S. 33:2501(E)(3); Moore v. Ware, 01-3341 (La.2/25/03), 839 So.2d 940, 945. The district court should defer to a civil service board’s factual conclusions and must not overturn them unless they are manifestly erroneous. Id. at 946. Likewise, intermediate review is limited to a finding of manifest error by the district court. Shields v. City of Shreveport, 565 So.2d 473, 480 (La.App. 2 Cir.1990), aff'd, 579 So.2d 961 (La.1991). Judicial review provided for by the statute does not contemplate a de novo review. Rather, the trial court sits as a reviewing court and is to look only at the record and the evidence presented to the civil service board to determine whether the board’s decision was made in good faith for cause. Lafayette City-Parish Consolidated Government v. Chauvin, 04-82 (La.App. 3 Cir. 6/9/04), 875 So.2d 1023, 1029. If made in good faith and for statutory cause, a decision of the civil service board should not be disturbed on judicial review. Moore, 839 So.2d at 945. Good faith does not occur if the appointing authority acts arbitrarily or capriciously, or as a result of prejudice or political expediency. Id. Arbitrary or capricious behavior means without rational basis for the action taken. Id. at 946.

Accordingly, our task is to determine whether the trial court committed manifest error in reversing the ruling of the Civil Service Board. We conclude that it did not.

| ir,The Civil Service Board determined that Mr. Langsford did not act inappropriately during the uniform incident or the firearm incident due to the exigencies caused by the aftermath of Hurricane Katrina. We are not unmindful of the destruction and misery Hurricane Katrina caused. See State v. All Property and Cas. Ins. Carriers Authorized and Licensed To Do Business In State, 06-2030, pp. 2-3 (La.8/25/06), 937 So.2d 313, 316-17 (describing the destruction caused by Hurricane Katrina).

However, in our view, the aftermath of Hurricane Katrina cannot excuse Mr. Langsford’s conduct. The record indicates that on September 3, 2005, Engine 378 stopped at a red light. Mr. Langsford asked for Ayo’s pistol, moved towards the men that were fighting at the gas station with the pistol clearly visible, and told the men to disperse. Mr. Langsford was not a police officer. He was a firefighter. He had no authority to display a weapon in such a manner, even during the chaos Hurricane Katrina produced. Moreover, there is no evidence in the record that Mr. Langsford’s fellow firefighters were in any danger when Mr. Langsford displayed the weapon.

Mr. Langsford would have been well within his rights to order the men to disperse from the fire truck or to approach the men without carrying a weapon. He chose not to do so. Mr. Langsford clearly went beyond his authority as a Kenner firefighter by displaying a weapon and ordering the men to disperse. In doing so, Mr. Langsford impaired the efficiency of the public service of the Kenner Fire Department.

Moreover, the record indicates that on September 9, 2005, Chief Negrotto told Mr. Langsford to change into clothes that would identify him as a fireman. Mr. Langsford chose to ignore Chief Negrot-to’s order. In our view, firefighting is a profession that requires discipline, focus, and strict obedience. Mr. Langsford |17chose to ignore those sublime principles by directly ignoring a superior officer’s order. By its very nature the refusal to obey a direct order impairs the efficient operation of a public service. This is why even single incidents of insubordination have been held sufficient to terminate a protected civil service employee. See, e.g., Almerico v. Harahan Mun. Fire and Police Civil Service Bd., 07-502 (La.App. 5 Cir. 11/27/07), 973 So.2d 799, 801 (employee disobeyed an order to take a medical exam); Danna v. Department of Transp. and Development, 2008-1275 (La.App. 1 Cir. 2/13/09), 2009 WL 385581 (unpublished). Moreover, we note that Mr. Langsford was not identifiable as a Ken-ner firefighter for nearly eight hours on September 9, 2005.

Mr. Langsford placed himself and the Kenner Fire Department in a potentially dangerous situation during the firearm incident. During the uniform incident, Mr. Langsford ignored a superior officer’s order and impaired the efficient operation of a public service. See also La. R.S. 33:2500 (“the appointing authority may remove any employee from the service, or take such disciplinary action as the circumstances warrant in the manner provided below for any one of the following reasons ... (4) Insubordination”). We believe from the testimony and the record before us that the Kenner Fire Department’s R & R policy was an ad hoe policy that was applied in a very flexible manner. We also believe that the R & R policy meant different things to different Kenner firefighters. However, it is clear from the record that Mr. Langsford refused to follow his supervisor’s orders and that he brandished a pistol on three citizens. We find that Mr. Langsford’s conduct during the firearm incident, the uniform incident, and his previous termination and reinstatement was more than sufficient legal cause for the City of Kenner to terminate his employment. We therefore find that the Civil Service Board wrongly substituted its own judgment for that of the appointing | ^authority. Accordingly, we find that the trial court was not manifestly erroneous in vacating the Civil Service Board’s ruling. This specification of error has no merit.

SECOND SPECIFICATION OF ERROR

Langsford contends that the Civil Service Board violated principles of due process by illegally depriving him of a timely pre-deprivation notice and opportunity to be heard. We disagree.

An essential principle of due process is that a deprivation of life, liberty, or property “be preceded by notice and opportunity for hearing appropriate to the nature of the case.” Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313, 70 S.Ct. 652, 656, 94 L.Ed. 865 (1950). The United States Supreme Court has described “the root requirement” of the Due Process Clause as being “that an individual be given an opportunity for a hearing before he is deprived of any significant property interest.” Boddie v. Connecticut, 401 U.S. 371, 379, 91 S.Ct. 780, 786, 28 L.Ed.2d 113 (1971) (emphasis in original); see also Bell v. Burson, 402 U.S. 535, 542, 91 S.Ct. 1586, 1591, 29 L.Ed.2d 90 (1971). This principle requires “some kind of a hearing” prior to the discharge of an employee who has a constitutionally protected property interest in his employment. Perry v. Sindermann, 408 U.S. 593, 599, 92 S.Ct. 2694, 2698, 33 L.Ed.2d 570 (1972).

In Fields v. State Through Dept. of Public Safety and Corrections, 98-0611, pp. 7-8 (La.7/8/98), 714 So.2d 1244, 1251, the Louisiana Supreme Court held:

Generally, before a person is deprived of a protected interest, he must be afforded some kind of hearing. However, this court has often recognized there may be circumstances involving a valid governmental interest which justify postponing the hearing until after the event. In re Adoption of B.G.S., 556 So.2d 545, 553 (La.1990). A deprivation without opportunity for a prior hearing or other effective substitute safeguard has been allowed in | , ¡“extraordinary” or “truly unusual” situations. Paillot v. Wooton, 559 So.2d 758, 762 (La.1990). “[E]mergency action may be proper pending a hearing when matters of public health and safety are involved.” Id. See also Wilson v. City of New Orleans, 479 So.2d 891 (La.1985) and Bell v. Department of Health and Human Resources, 483 So.2d 945, 951(La.), cert. denied, 479 U.S. 827, 107 S.Ct. 105, 93 L.Ed.2d 55 (1986) (“[W]e note that there seems to be an emerging concept that in some instances due process is fulfilled by a ‘post deprivation’ hearing. We believe that this view to procedural due process in certain situations is sound and is in support of our decision here.”).
(emphasis added)

In Reed v. Department of Police, 2006-1498 (La.App. 4 Cir. 10/10/07), 967 So.2d 606, the Fourth Circuit addressed an argument similar to the argument Langsford makes here on appeal. After Hurricane Katrina, Plaintiff Rashi Reed was terminated from his position as a New Orleans city police officer. He appealed to the Fourth Circuit contending that the New Orleans Civil Service Commission (“CSC”) erred as a matter of law by terminating him from his position without holding a pre-deprivation hearing. Id. at 607-08. Reed’s claim was consolidated with the claims of other New Orleans police officers alleging that CSC deprived them of due process by not providing them pre-depri-vation hearings. All of the Reed plaintiffs had previously been New Orleans police officers and all had been terminated for their conduct following Hurricane Katrina. The Fourth Circuit held that a post-deprivation hearing was sufficient to address the plaintiffs’ claims, reasoning:

We can hardly envision a scenario when enforcing appropriate standards of conduct was ever more important than in the aftermath of Hurricane Katrina. In addition, we find that the CSC’s rulings relying solely on the absence of a pre-termination hearing when truly extraordinary circumstances present themselves would set a dangerous precedent on future disciplinary actions of the NOPD.

Id. at 610.

Several of the individual Reed plaintiffs thereafter filed writ applications with the Louisiana Supreme Court. Most of the applications were denied. See, e.g., Winford v. Department of Police, 2007-2181 (La.1/11/08), 972 So.2d 1165 (plaintiff Leander Winford); Washington v. Department of Police, 2007-2103 (La.1/11/08), 972 So.2d 1164 (plaintiff Errol Washington). However, the Supreme Court granted plaintiff Shawn Madison’s writ. Madison v. Department of Police, 2007-2405 (La.4/4/08), 978 So.2d 288. The Supreme Court ultimately held that Madison should have been placed on medical leave rather than terminated from his position outright. Id. at 291. The court additionally noted:

Like the other police officers whose writs were denied by this court, Officer Madison did challenge the court of appeal’s finding that a post-termination hearing was sufficient to protect his due process rights under the facts of this case. As we did when we denied the writ applications filed by the other officers, we reject that argument.
Id. at 289 (emphasis added).

We believe that the findings of the Supreme Court in Madison are dispositive here. Langsford was a civil servant working during the aftermath of Hurricane Katrina, as were the Reed plaintiffs. Langs-ford was terminated for his actions in the aftermath of Hurricane Katrina, as were the Reed plaintiffs. Langsford contends that he was deprived of due process because he was not afforded a pre-deprivation hearing, as did the Reed plaintiffs. In Madison, the Supreme Court rejected the contention that a post-deprivation hearing violated the Reed plaintiffs’ due process rights. There is no reason to suggest that the Supreme Court would hold otherwise here. This specification of error is without merit.

CONCLUSION AND DEGREE

For the foregoing reasons, the judgment of the trial court is affirmed. Costs of this appeal are taxed to Mr. Langsford.

AFFIRMED.

      . The Kenner Municipal Fire and Police Civil Service Board will hereafter be referred to as the "Civil Service Board.”

      . Apparently, this practice was not forbidden in the aftermath of Hurricane Katrina.

      . Captain Crocker was Mr. Langsford's usual supervisor, however, Captain Crocker was home pursuant to the R&R policy at the time the abandonment incident and the uniform incident occurred.

      . We note that the district court concluded that the Kenner Fire Department “did not act arbitrarily and capriciously in disciplining Mr. Langsford.” La. R.S. 33:2501(E)(3) provides that an employee's appeal to the district court "shall be confined to the determination of whether the decision made by the board was made in good faith for cause.” However, we agree with the district court that the Civil Service Board substituted its judgment for that of the appointing authority and that the board’s decision was not made in good faith for cause.