author: LAMY, Judge. | LAUNDERS, J.,

text:
    Eric GLYNN v. DIAMOND STATE INSURANCE, et al.
    No. CW03-0029.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 26, 2003.
    Writ Denied Feb. 13, 2004.

      Keith Michael Borne, Borne, Wilkes & Brady, Lafayette, LA, for Defendant/Applicant, Safeway Insurance Company of Louisiana.
    Michael Thomas Johnson, Alexandria, LA, for Defendants/Respondents, State Farm Insurance Co., Cory Brevelle.
    W. Jay Luneau, Luneau Law Office, Alexandria, LA, for Plaintiff/Respondent, Eric Glynn.
    Richard Alan Rozanski, Wheelis & Ro-zanski, Alexandria, LA, for Defendant/Respondent, Allstate Insurance Company.
    Kim Segura Landry, Gonzales, LA, for Defendants/Respondents, Direct General Insurance Co., Stacy Mayeux.
    Valerie M. Thompson, Alexandria, LA, for Defendant/Respondent, State Farm Insurance Co.
    Court composed of JOHN D. SAUNDERS, MARC T. AMY, MICHAEL G. SULLIVAN, GLENN B. GREMILLION, and ELIZABETH A. PICKETT, Judges.
   LAMY, Judge.

The plaintiff seeks damages related to an automobile accident. The defendant automobile insurance company filed a motion for summary judgment alleging that it did not provide coverage for the accident as the policy at issue had been canceled. The trial court denied the motion for summary judgment. The insurance company seeks review of that denial. For the following reasons, we reverse the trial court’s determination and enter summary judgment in favor of the insurer.

Factual and Procedural Background

The plaintiff, Eric Glynn, filed a petition for damages on December 12, 2001. The petition alleged injury as the result of a January 2, 2001 automobile accident. The accident involved a number of vehicles, including one driven by James Knapp. Mr. Knapp, along with his alleged liability insurer, Safeway Insurance Company, were among those named as defendants.

On June 21, 2002, Safeway Insurance Company filed a motion for summary judgment, alleging that it did not provide liability coverage on Mr. Knapp’s vehicle at the time of the January 2001 accident. Safeway asserted that the policy had been canceled effective October 30, 2000.

In support of its motion, Safeway introduced the affidavit of Paula Thibodeaux, Underwriting Manager at Safeway, who stated that she has access to the insurer’s records and that her review indicates that the company issued a policy to James Knapp for the period from May 30, 2000 to November 30, 2000. However, a premium of $132.00 due on September 27, 2000 was unpaid. Due to this, Ms. Thibodeaux explained in the affidavit, a Notice of Cancellation or Termination was mailed on October 16, 2000. The effective date of the cancellation was October 30, 2000.

| ¡>Several exhibits were attached to Ms. Thibodeaux’s affidavit. Exhibit A is the Declaration Page of the Policy, which names Mr. Knapp as an insured, identifies the $10,000 policy limit, sets forth the premium for the period, and indicates the policy period as beginning March 30, 2000 and ending on November 30, 2000. Exhibit B is a “Notice of Installment Payment Due” identifying a $132.00 installment payment due on the policy on September 27, 2000. Exhibit C is a document entitled “Notice of Cancellation or Termination” indicating that the policy will be canceled/terminated on October 30, 2000. The reason listed is “Non-Payment of Premium.” The document contains “10-16-00” as its date of mailing. Finally, Safeway attached Exhibit D, a “Cancellation Register” listing a number of policies, identified by number, insured, and insured’s address, that were to be canceled effective October 30, 2000. Mr. Knapp’s policy is among those listed. The record also contains a subsequent page to this register, which bears a postal mark of October 16, 2000.

The plaintiff opposed the motion for summary judgment, alleging that the affidavit was not based upon the personal knowledge of Ms. Thibodeaux and asserting that the defendant failed to offer actual proof of the mailing of the cancellation notice.

The trial court denied the motion for summary judgment. Safeway filed a supervisory writ application seeking a reversal of the denial of the motion for summary judgment. The writ application was granted by this court for purposes of briefing and a full opinion. After the insurer filed a supplemental brief with this court, the plaintiff filed a Motion to Strike, alleging that the insurer impermissibly raised the issue of whether the policy had expired, in addition to having been | ¡¡canceled. A ruling on the motion was deferred to consideration on the merits of the application.

Discussion

A party moving for summary judgment bears the burden of demonstrating that no genuine issues of material fact exist. La. Code Civ.P. art. 966. On appeal, the trial court’s determination to grant or deny a motion for summary judgment is reviewed de novo. Austin v. Abney Mills, Inc., 01-1598 (La.9/4/02), 824 So.2d 1137.

Safeway contends that, through the affidavit of its Underwriting Manager and associated exhibits regarding the policy, it has satisfied its burden of demonstrating that the automobile liability policy issued to James Knapp had been canceled at the time of the accident and, therefore, the claim against it should be dismissed. Safeway asserts that its evidence demonstrates compliance with La.R.S. 22:636.1(D), which provides, in part:

(1) No notice of cancellation of a policy to which Subsection B or C of this section applies shall be effective unless mailed by certified mail or delivered by the insurer to the named insured ■ at least thirty days prior to the effective date of cancellation; however, when ean- ■ cellation is for nonpayment of premium at least ten days notice of | ¿cancellation accompanied by the reason therefor shall be given. In the event of nonpayment of premiums for a binder, a ten day notice of cancellation shall be required before the cancellation shall be effective. Notice of cancellation for nonpayment of premiums, shall not be required to be sent by certified mail. Unless the reason accompanies the notice of cancellation, the notice of cancellation shall state or be accompanied by a statement that upon written request of the named insured, mailed or delivered to the insurer within six months after the effective date of cancellation, the insurer will specify the reasons for such cancellation. This Subsection shall not apply to nonrenewal.

The question before the court is, simply, whether the evidence presented indicates that no genuine issues of material fact exist with regard to whether notice of cancellation was “delivered” to the insured in compliance with La.R.S. 22:636.1(D)(1). As explained in the factual background above, Safeway supported its motion with an affidavit of Ms. Thibodeaux, an Underwriting Manager. The affidavit explained the attached insurance documents, which included the “Notice of Cancellation or Termination.” The notice reveals the policy number, provides Mr. Knapp’s name and address, and under the reason for cancellation section, states:

You are hereby notified in accordance with the terms and conditions of your automobile policy and the provisions of Section 636.1B of the Louisiana Insurance Code, that your policy- will be can-celled or terminated on the date and time indicated, for the reason described below

NON-PAYMENT OF PREMIUM

The form bears the date of mailing as October 16, 2000. Additionally, Safeway attached a “Cancellation Register” which includes Mr. Knapp’s name, address, and an October 30, 2000 effective date of cancellation. In her affidavit, Ms. Thibodeaux states, in part:

| sThat James Knapp did not pay the fourth installment payment due as reflected on Exhibit B and, as a result of said payment not being made, Safeway Insurance Company of Louisiana mailed to James Knapp a Notice of Cancellation or Termination for nonpayment of premium, with the date of said mailing being October 16, 2000 and with the effective date of cancellation being October 30, 2000. A copy of the Notice of Cancellation or Termination sent to James Knapp is attached hereto as.Exhibit C, with a copy of the Cancellation Register reflecting mailing of said-notice of cancellation being attached hereto as Exhibit D[J

She further stated: “That at no time did Safeway Insurance Company of Louisiana receive any payment from James Knapp for the fourth installment due as reflected on Exhibit B and, therefore, Policy Number SL211202 was canceled by Safeway Insurance Company of Louisiana on October 30, 2002.”

We find no merit in the plaintiffs contention that the affidavit of Paula Thibo-deaux was not based upon her personal knowledge as is required by La.Code Civ.P. art. 967. Our review indicates that the affidavit is based on personal knowledge given her statement that she is the Underwriting Manager at Safeway and that she has access to the records of the insurer. Her subsequent statements in the affidavit reference various documents pertaining to the policy, placing them into context. Accordingly, we find the affidavit an appropriate inclusion in the motion for summary judgment. See Plummer v. Allstate Ins. Co., 98-1291 (La.App. 3 Cir. 3/3/99), 738 So.2d 21.

According to Ms. Thibodeaux’s statement, which is supported by the records, the notice of cancellation was mailed. The reason for cancellation was listed on the notice as “non-payment of premium.” No subsequent payment on the policy was 1 (¡received. We conclude that these factors satisfy the insurer’s burden of proof under La.R.S. 22:636.1(D).

According to the Louisiana Supreme Court in Cuccia v. Allstate Insurance Co., 262 La. 545, 263 So.2d 884 (1972), an insurer’s proof of the mailing of cancellation creates a rebuttable presumption of delivery of notice. See also Broadway v. All-Star Ins. Co., 285 So.2d 536 (La.1973); Guy v. McKnight, 99-2284 (La.App. 4 Cir. 2/16/00), 753 So.2d 955, writ denied, 00-841 (La.6/16/00), 764 So.2d 963; Snow v. Mid-American Indem. Co., 557 So.2d 1073 (La. App. 2 Cir.1990). This presumption can be rebutted by proof of nondelivery. See Broadway, 285 So.2d 536; Snow, 557 So.2d 1073.

Considering the dictates of La.Code Civ.P. art. 966 in light of the above discussion as to burden, we conclude that Safeway is entitled to summary judgment. Safeway supported its assertion of cancellation and delivery of notice of cancellation through its exhibits. The plaintiff then had the opportunity to rebut that showing with evidence of its own, indicating failure to comply with the cancellation statute. The plaintiff made no such showing. Accordingly, Safeway, as the mover, is entitled to summary judgment.

Motion to Strike

After this matter was docketed for full briefing and opinion, Safeway filed a supplemental brief pointing out, among other things, that the policy was not only canceled but that it would have expired as well. The plaintiff filed a motion to strike, asserting that the defense of expiration of the policy was improperly raised for the first time on appeal and, accordingly, that portion of Safeway’s brief should be jjstricken. Due to our resolution on the summary judgment, the plaintiffs motion to strike is rendered moot.

DECREE

For the foregoing reasons, we reverse the trial court’s denial of the motion for summary judgment and enter summary judgment in favor of Safeway Insurance Company. The plaintiffs claim against Safeway Insurance Company is dismissed with prejudice. All costs of this proceeding are assigned to the plaintiff, Eric Glynn.

WRIT GRANTED AND MADE PEREMPTORY. MOTION TO STRIKE NOT CONSIDERED.

SAUNDERS, J., dissents and assigns written reasons.

| LAUNDERS, J.,

dissents.

I respectfully dissent from the holding of the majority of this court for the following reasons. “Louisiana’s insurance laws require that written notice of cancellation must be actually delivered or mailed to the insured before a cancellation can be effective.” Breland v. All American Assur. Co., 366 So.2d 1051, 1053 (La.App, 1 Cir. 1978). The burden of proof rests upon the automobile insurer to prove by prima facie evidence proof of mailing of notice of cancellation to the insured; where the insurer meets this burden of proof the presumption of delivery is established which then may be rebutted by the insured only through affirmative evidence of nondelivery. Folds v. Protective Cas. Ins. Co. (La.App. 2 Cir. 12/7/94), 647 So.2d 1215.

The Cancellation Register of Safeway contains the policy number, name of insured, address of insured and effective date of cancellation for each listed insured. At the bottom of each page of the Cancellation Register is an attestation clause certifying that the signer clause personally mailed each cancellation notice listed in .the Cancellation Register. The Cancellation Register provided to this court contains no attestation clause signature. The lack of the attestation clause signature does not allow us to say conclusively that the notice of cancellation was in fact mailed to Mr. | gKnapp as is required by La.R.S. 22:636.1(F).

The Cancellation Register provided to this court for evaluation contains pages two and fifteen of the Cancellation Register, respectively. Page two of the Cancellation Register lists fifty different individuals or businesses. There are no United States Postal Service stamps anywhere on this page. The Cancellation Register entry for James Knapp is number thirty-five, located on page two of the Cancellation Register. Page fifteen lists thirteen different individuals of businesses. Page fifteen contains United States Postal Service stamps dated October 16, 2000, and postage rate stamps totaling one hundred and two dollars. This page is the only page provided to this court that contains any postal service markings. The presence of only two pages of the Cancellation Register and the lack of any postal service markings on page two of the Cancellation Register does not allow us to say conclusively that the notice of cancellation for Mr. Knapp listed on page two of the Cancellation Register was in fact mailed to Mr. Knapp as required by La.R.S. 22:636.1(F).

      . The Declaration Page of the Policy lists the policy period as "5/30/00 at 12:45 PM To 11/30/00 at 12:01 AM.”

      . Louisiana Code of Civil Procedure Article 966(C)(2) provides:
      The burden of proof remains with the mov-ant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant's burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.
      Article 967 further provides, in part:
      When a motion for summary judgment is made and supported as provided above, an adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided above, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him.

      . With regard to date and time of cancellation, the notice states:
      Cancellation or termination to take effect on:
      10-30-00 at 12:01 AM Standard Time

      . Article 967 provides, in part:
      Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or by further affidavits.

      . Although Cuccia involved the delivery of notice of cancellation under La.R.S. 22:636, we find the matter analogous.


source: Caselaw Access Project

author: h DAVID S. GORBATY, Judge.

license: Public Domain

text:
    Rebecca KOSAK, et al. v. Evan TRESTMAN and XYZ Insurance Company.
    No. 2003-CA-1056.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 3, 2003.
    Writ Denied March 12, 2004.

      Lanny R. Zatzkis, Karen D. McCarthy, Yvette A. D’Aunoy, Andrew N. Lee, Zat-kis, McCarthy & Associates, New Orleans, LA, for Plaintiff/Appellant.
    Michael P. Mentz, Alayne R. Corcoran, Hailey, McNamara, Hall, Larmann & Pa-pale, L.L.P., Metairie, LA, for Defendant/Appellee, Coregis Insurance Company.
    Charles W. Schmidt, III, Kevin R. Tully, Mary C. Ehret, H. Carter Marshall, Chris-tovich & Kearney, L.L.P., and Robert C. Lowe, Lowe, Stein, Hoffman, Allweiss & Hauver, New Orleans, LA, for Defendant/Appellee, Evan F. Trestman.
    John V. Baus, Jr., John V. Baus, Jr., PLC, New Orleans, LA, for Defendant/Ap-pellee, New England Insurance Company.
    (Court composed of Judge JAMES F. McKAY III, Judge TERRI F. LOVE, Judge DAVID S. GORBATY).
   h DAVID S. GORBATY, Judge.

In this appeal, plaintiffs assert that it was error for the trial court to dismiss their claims. For the reasons set forth below, we affirm.

FACTS AND PROCEDURAL HISTORY

Plaintiff Rebecca Kosak has brought this action against Evan Trestman and his alleged malpractice insurance carriers. This legal malpractice suit arises from an underlying personal injury action wherein Ms. Kosak’s fiancé, Duval Cantu, was severely injured in an automobile accident. Defendant Trestman was retained by Ms. Kosak to protect Cantu’s interests. Cantu was subsequently interdicted, and Ms. Ko-sak was appointed as his curatrix. A personal injury lawsuit was filed on behalf of Ms. Kosak individually and as curatrix for Mr. Cantu.

Kosak alleges that she discharged Trest-man “for cause” in 1989, and that other attorneys settled the personal injury action on her behalf. Although Cantu married Kosak after his accident, they divorced after the settlement was reached in the personal injury action. After the settlement, Cantu moved to nullify the order of interdiction. The matter was contested by Ms. Kosak, was heavily litigated, and was eventually addressed by the Fifth Circuit Court of Appeal.

l2In November 1996, Kosak filed this malpractice action against Trestman. In April 1999, she filed an amended and supplemental petition alleging a cause of action as Mr. Cantu’s curatrix and an independent claim on her own behalf. Specifically, she alleged that Trestman was negligent in the interdiction of Cantu; that Trestman breached an alleged duty owed to her by helping Cantu in his attempt to nullify the interdiction; and that Treatman breached numerous duties owed to her individually.

In the interdiction proceeding, in June 1999, Ms. Kosak filed a voluntary “Motion to Withdraw as Curatrix.” Based on this, the trial court considered Cantu’s petition for nullity moot because Kosak had already withdrawn as curatrix. The Fifth Circuit agreed. However, Kosak continued to pursue the instant malpractice claim.

In February 2001, Trestman filed an Exception of Peremption and/or Prescription and/or Motion for Summary Judgment, as well as an Exception of No Cause and/or Right of Action, along with other motions. Coregis, as Trestman’s professional liability insurer, filed similar exceptions and motions. After a lengthy hearing, the trial judge stayed the proceedings pending the outcome of Ms. Kosak’s disciplinary complaint against Trestman. However, this court reversed that judgment and remanded the matter. In March 2003, the trial court issued a judgment granting defendant’s Exception of No Cause and/or No Right of Action, and dismissed plaintiffs suit. Plaintiff subsequently filed this appeal.

DISCUSSION

Plaintiffs argue that the trial court erred in dismissing the claims of Duval Cantu on the grounds that Ms. Kosak no longer had the right to pursue an action on Mr. Cantu’s behalf. Mr. Cantu had filed a motion to be substituted as party ^plaintiff for Ms. Kosak. The cause for the exception could be removed by the mere granting of this motion to substitute, plaintiff asserts.

Plaintiffs next aver that the trial court erred in dismissing Ms. Kosak’s claims on an exception of no cause of action, when the petitions stated causes of action based upon an attorney malpractice, conflict of interest, Ratcliff v. Boydell type claims, fraud and misrepresentation. Further, plaintiffs contend that it was improper for the trial court to look beyond the pleadings and make findings adverse to the statements contained in the pleadings for the purpose of granting an exception of no cause of action.

In its Reasons for Judgment, the trial court stated:

Since Ms. Kosak voluntarily resigned as Mr. Cantu’s curatrix on June 14, 1999, she has no right of action or cause of action to pursue the instant action on Mr. Cantu’s behalf. Once an interdiction ends, the former interdict manages his own affairs, freed- from the former curatrix’s further control or involvement. Accordingly, this court finds that Ms. Kosak, as a former curatrix, is not the proper party and does not possess the right to pursue, on Mr. Cantu’s behalf, any claim against the defendant.

The trial court also ruled that Ms. Ko-sak has no legal right to proceed individually against Trestman because she was not married to Cantu at the time he sustained the injuries. The trial court noted that Kosak “was not a member of any of the designated class of beneficiaries who could assert a loss of consortium claim. As one cannot marry into a cause of action, this court finds that Ms. Kosak has no legal malpractice claim against Mr. Trestman” in connection with the filing of Cantu’s underlying personal injury action.

The trial court also rejected Kosak’s claim that, under La. C.C.P. art. 805, she is entitled to maintain her action as the former curatrix until Cantu is substituted as a party. The trial judge stated:

RThe crux of Ms. Kosak’s suit is not an “action” anticipated by Article 805, which primarily applies to people who were minors when the action commenced but reached the age of majority during the litigation. Indeed, Ms. Ko-sak’s lawsuit presents various claims against Mr. Trestman for his actions and/or inactions on her behalf as the former curatrix for Mr. Cantu. The instant suit is devoid of any allegations that Mr. Trestman harmed Mr. Cantu.

We agree with the reasoning and conclusions of the trial court. During the pendency of an interdiction proceeding, the proper person to file and prosecute any cause of action on Cantu’s behalf is his curatrix. La. C.C.P. art. 684. Since Kosak voluntarily resigned as curatrix on June 14, 1999, she was not Cantu’s cura-trix and .has no right to pursue .any claim on Cantu’s behalf. Further, Kosak was not married to Cantu at the time he was injured, so she had no individual claim in the tort action. Thus, in her role as cura-trix, the underlying suit was filed, exclusively in the best interest of the interdict. As such, any authority for plaintiff to act in that capacity was terminated on June 14, 1999 when Ms. Kosak voluntarily resigned as curatrix. A curatrix who has resigned has no further authority to act on behalf of an interdict.

The motion filed by Ms. Kosak contained a proposed order that another curator, be appointed. As the record demonstrates, that portion of the order was scratched through and rejected by the presiding judge. Although Ms. Kosak. was undeniably .removed as curatrix, no successor was appointed because ten years after the accident, Mr. Cantu did not require a curatrix, and the interdiction effectively ended. The Fifth Circuit held that the interdiction was dismissed as of the date of Ms. Kosak’s withdrawal as curatrix. Accordingly, Ms. Kosak has no further authority to act as Mr. Cantu’s curatrix and no right of action to maintain the instant legal malpractice action against Mr. Trest-man.

| sUnder Louisiana law, in order to maintain an action for legal malpractice, a plaintiff must prove three essential elements: the existence'of an attorney-client relationship; negligent misrepresentation by the attorney; and loss to the client caused by the alleged negligence. Spellman v. Bizal,. 99-0723 (La.App. 4 Cir. 3/1/00), 755 So.2d 1013; Irl R. Silverstein, PLC v. Juarez, 98-1322 (La.App. 5 Cir. 6/1/99), 740 So.2d 702. In the instant case, Ms. Kosak admittedly knew she had no individual claim in the underlying personal injury suit and as such, no attorney/client relationship with Mr. Trestman. Ms. Ko-sak could not marry into a cause of action, and she had no loss of consortium claim because she married Mr. Cantu after his accident..

In retaining Mr. Trestman to pursue Mr. Cantu’s personal injury claim, she, as the interdict’s curatrix, was acting exclusively in the best interest of the interdict, as was her fiduciary duty to Mr. Cantu. She, individually, had no claim and was not represented by Mr. Trestman in that action or in the interdiction proceeding. Mr. Trestman was representing Mr. Cantu, the interdict, and owed his duty to him, not to Ms. Kosak, the curator. Accordingly, Ms. Kosak has no individual cause of action against defendant.

Ms. Kosak cites La. C.C.P. art. 805 as authority for her proposition that Mr. Cantu can and should procedurally be substituted as plaintiff. However, her reliance o.n this article is misplaced. The trial court correctly ruled that this article primarily applies, to people who were minors when they sustained injury and suit was filed, and later reached the age of majority during the pendency of the suit. In such cases, substitution of the former minor as plaintiff is proper to pursue his or her own cause of action. However, in this lawsuit, the crux of Ms. Kosak’s argument is that she was somehow harmed by Mr. Trest-man’s alleged conflict of ^interest in attempting to remove her as Mr. Cantu’s curatrix. Significantly, as the trial court noted, there is no allegation that Mr. Cantu was harmed or sustained any damages at all.

Without damages actually sustained by Mr. Cantu, there exists no cause of.action in his favor in legal malpractice, and the belated substitution of him as a plaintiff is meaningless. The right to amend is not so absolute as to permit an amendment when it would constitute a vain and useless act. Stovall v. Carimi, 95-0766 (La.App. 4 Cir. 11/30/95), 667 So.2d 1107; Thompson v. Harrington, 99-571 (La.App. 3 Cir. 10/13/99), 746 So.2d 652. As such, the trial court properly granted defendant’s Exceptions of 'No Right/ Cause of Action prior to addressing the belatedly filed motion - to substitute.

Finally, plaintiffs contend that the trial court erred in ruling on exceptions of no right of action and no cause of action without first having tried the exceptions, in violation of La. C.C.P. art. 929.

The record reflects that on November 26, 2001, the exceptions came for hearing before the Civil District Court for the Parish of Orleans before Judge Michael Bag-neris. The hearing, in which eleven attorneys made appearances on the record, was lengthy and encompassed discussion of the instant suit as well as other related eases. After long and thorough presentations by counsel for Ms. Kosak and counsel for Mr. Trestman, the trial judge requested memo-randa from the parties on the issue of the existence of a cause of action/ right of action in this matter. Judge Bagneris noted that plaintiff had not yet filed an opposition to Mr. Trestman’s exceptions in this regard. However, the trial judge felt that the issue was so intertwined with the prescription issue that post-trial briefs were necessary. On December 6, 2001, plaintiff filed a Memorandum in Opposition to the 17Exception of No Cause/ No Right of Action. Mr. Trestman subsequently filed a reply to this memorandum.

We find that the trial judge did not err in ruling on the exceptions of no cause/ right of action. The issues involved in the exceptions were discussed at length by the parties at the November 26 hearing. Further, the parties submitted memoranda concerning the exceptions. As such, it was proper for the trial court to issue judgment on the exceptions. This assignment of error is without merit.

CONCLUSION

Accordingly, for the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.


author: L CARAWAY, J.

text:
    Colton A. SANDERS, Plaintiff-Appellee, v. Bobby RUSSELL, Defendant-Appellant.
    No. 37,839-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 10, 2003.

      Mills, Turansky & Cox, by George H. Mills, Jr., Shreveport, for Appellant.
    Lemle & Kelleher, L.L.P., by Robert Kyle, Leland G. Horton, Shreveport, for Appellee.
    Before GASKINS, CARAWAY and PEATROSS, JJ.
   L CARAWAY, J.

Plaintiff sued for the balance owed on a loan. Defendant answered the suit admitting that the loan had not been repaid but asserting a set-off against the amount claimed by plaintiff. Defendant’s answer alleged that plaintiff owes for unpaid invoices for services rendered by the defendant. The plaintiff filed a motion for summary judgment based upon defendant’s admissions regarding the loan. The trial court granted the summary judgment and defendant appealed asserting that material fact issues remain regarding his affirmative defense of set-off. For the following reasons, we affirm the trial court’s ruling.

Facts

On April 8, 2002, Colton Sanders filed suit against Bobby Russell to recover an alleged $9,000 balance due on an $18,000 loan that had been made to Russell “on or about October 4, 2001.” Sanders alleged that despite demands on February 6, 12, and 26, 2002, and March 8, 2002, Russell had repaid only $9,000 of the loan. Ac-eordingly, Sanders sought judgment against Russell for $9,000, together with legal interest from the alleged original demand date of February 6, 2002, along with all costs of Sanders’ action filed in Shreveport City Court.

Russell, unrepresented by counsel, filed a handwritten answer to Sanders’ petition along with copies of several invoices and a copy of a letter dated April 17,- 2002 from Russell to Sanders’ attorney. The answer, which was drafted by Russell’s wife, stated:

Formal demand wasn’t made until the lawyer’s letter and Bobby attempted to speak with Mr. Sanders w/no response. At |Rthis time Mr. Sanders owes Mr. Russell $9675.00. Mr. Sanders states he needs pmt. immediately after stating to Mr. Russell that there was no time limit. We have reason to believe that Mr. Sanders wants pmt. before we receive our payment that is due. As stated in the letter attached we haven’t received all moneys owed to us from past invoices. The moneys are close in amt. and should take care of each other, or the money owed to us should be exchanged at the exact same time to prevent any problems receiving ours. The letter attached explains more detail. Thank you.

Attached to the answer were five invoices, totaling $9,675 billed to Colton Sanders by “Bobby Russell Sheet Metal, LLC” (hereinafter the “LLC”). The dates on the invoices range from June 9, 2000, to February 1, 2002.

The April 17, 2002 letter from Russell to Sanders’ attorney stated that Sanders made the loan to Russell with the understanding that there would be no time restrictions for repayment. Instead, the loan was “a friendly loan to be paid back as I could.” Russell indicated in his letter that a request for the first $9,000 was made and the money was paid immediately. Russell reiterated his claim that Sanders owed him $9,675 for work done “on two carwashes as well as various other jobs that I’ve done for him.” In light of the closeness of the amounts each allegedly owed the other, Russell stated his willingness to “consider it even and resolved.” Russell’s April 17 letter also indicated that he had; previously received-a letter from Sanders’ attorney demanding payment of the loan.

On June 21, 2002, Sanders filed a motion for summary judgment pointing out that Russell’s answer admitted the loan was made as alleged and had not been repaid. Russell filed no opposition to. the motion for summary judgment. The minutes for August 7, 2002, indicate that the motion for summary judgment was called for argument on that date, and that 13counsel for Sanders was present along with Russell in proper person. There is no transcript of the hearing in the record. The summary judgment was granted, awarding Sanders $9,000, together with interest at the legal rate from February 6, 2002 until paid in full, and all costs of the action.

Following the judgment, Russell filed a timely motion for new trial. In his motion, Russell asserted that the LLC was not formed until February 11, 2002, after the alleged invoice indebtedness incurred by Sanders to Russell. Russell attached to his motion for new trial a copy of a certificate from the. Louisiana Secretary of State indicating that a copy of the Articles of Organization and Initial Report of the LLC was filed and recorded with the Secretary of State’s office on February 11, 2002.

The minutes of court for April 9, 2003, indicate that the motion for new trial was called up on that date with counsel present for both parties. The entire record- was offered into evidence, along with the eertif-icate and Articles of Organization for the LLC. The minutes indicate that witnesses were present on behalf of plaintiff and defendant, that the motion was argued, but that the motion was denied. Again, the appellate record does not contain a copy of a transcript on the motion for new trial, but the appellate record does contain a written judgment signed on April 17, 2003, denying the motion for new trial. This appeal followed.

Discussion

Russell first argues that the trial court erred in granting the motion for summary judgment by relying solely upon the admissions and allegations contained in Russell’s answer to the suit. Sanders filed no evidence in Rsupport of his motion for summary judgment. Therefore, Russell insists that the judgment be viewed as a judgment on the pleadings pursuant to La. C.C.P. art. 965 which requires that “all allegations of fact in the adverse party’s pleadings shall be considered true.”

Russell’s unconventional answer filed in proper person clearly set forth the affirmative defense of set-off or extinguishment of the debt by compensation. La. C.C.P. art. 1005; La. C.C. art. 1893, et seq. The answer, therefore, did admit that Russell owed Sanders $9000 and that demand had been made by Sanders’ counsel through a letter mailed to Russell at some unidentified date prior to the suit.

The only additional assertion in Russell’s answer which bears upon his obligation to pay the $9000 was his statement that the parties had placed no “time restrictions” on the repayment of the debt. While they may now disagree regarding the time for repayment, Russell does not assert that they had fixed any term for repayment. The debt therefore must be treated as an obligation whose term for performance is uncertain. In such case, La. C.C. art. 1778 indicates that when the term for performance is undet-erminable and therefore uncertain, “the obligation must be performed within a reasonable time.” In response to the motion for summary judgment, Russell presented no additional evidence that Sanders had not given him a reasonable time period for repayment of the loan that had remained unpaid for six months before the filing of this suit. Therefore, upon Sanders’ request for performance in advance of filing suit, Russell was put in default in accordance with La. C.C. art. 1990.

| r,These “admissions on file” pertaining to the $9000 debt would, under La. C.C.P. art. 966(B), be sufficient to support summary judgment in favor of Sanders as well as a judgment on the pleadings. Russell nevertheless insists that the other allegations in his answer must be considered as true and that they show that Sanders owes Russell $9675. These allegations of the affirmative defense of set-off, according to Russell, establish genuine issues of material fact which show that the summary judgment/judgment on the pleadings was improper. We disagree.

Compensation or set-off was also at issue in Sims v. Hays, 521 So.2d 730 (La. App. 2d Cir.1988) where the court affirmed a summary judgment in favor of one of the parties who was the holder of a promissory note. The losing party claimed that summary judgment was improper because of her defense of compensation embodied in her pending cross-claim. This court rejected that argument and affirmed the summary judgment after the following review of the claim for compensation:

We agree that this case meets some of the criteria for compensation. There is a mutuality of obligors. Both debts are for a sum of money. C.C. art. 1893; 4 Aubry & Rau, Cours de droit civil fran-cais § 326 (6th ed.1965). However, in one crucial respect, the instant case does not meet the criteria for compensation. The debts are not equally liquidated. The jurisprudence offers various explanations of a “liquidated” claim. A claim is liquidated when its correctness is admitted by the debtor. A claim is liquidated when the debt is for an amount capable of ascertainment by mere calculation in accordance with accepted legal standards. Aubry and Rau defíne a liquid debt as one whose existence is certain and its quantity determined. They elaborate:
A disputed debt is not liquid and .cannot be admitted as susceptible of compensation unless, the one who asserts compensation has in hand the proof of the existence of |fithe disputed debt and is thus in a position to prove it promptly.

Id. at 733 [citations omitted]. Accord, American Bank v. Saxena, 553 So.2d 836 (La.1989).

In this case, at the time of the submission of the motion for summary judgment, there was a lack of mutuality in the obli-gors based upon the invoices Russell filed as part of his answer. While the $9000 debt on the principal demand was between Sanders and Russell, the asserted affirmative defense listed invoices totaling $9675 owed by Sanders to the LLC. Moreover, Russell’s answer contains no documentary evidence that the invoices represented an undisputed debt. Those invoices represent a separate contract or contracts unrelated to the $18,000 loan. Sanders has not admitted that he owes for the invoices, and Russell presented no evidence in opposition to the motion for summary judgment indicating that the alleged $9675 indebtedness is a liquidated debt. Accordingly, the Sims ruling confirms that summary judgment on the admitted claim was appropriate and that Russell failed to establish that legal compensation has occurred.

For the same reasons, Russell’s second assignment of error regarding the trial court’s refusal to grant a new trial must be rejected. Russell’s untimely attempt through his motion for new trial to present opposition evidence to the motion for summary judgment was not a presentation of newly discovered evidence which could justify a grant for a new trial under La. C.C.P. art. 1972(2). Russell knew before the hearing on the motion for summary judgment that he personally, instead of the LLC, was the party |7owed the debts represented by the invoices. Nevertheless, even with the belated clarification of that matter, Russell never attempted to establish that the invoice indebtedness was undisputed and liquidated, so as to serve as an affirmative defense in the face of Sanders’ established claim for $9000. The trial court’s refusal therefore to reconsider its prior grant of summary judgment was correct • and the judgment is affirmed. Costs of appeal are assessed to appellant.

AFFIRMED.


author: h COOKS, Judge.

text:
    Charles S. REILY, et al. v. STATE of Louisiana, et al.
    No. 03-580.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 17, 2003.
    Rehearing Denied Feb. 18, 2004.

      See also 314 So.2d 383, 553 So.2d 1341.

      Patrick W. Gray, Thomas' M. McNamara, Liskow & Lewis, Lafayette, LA, F.L. DeSalvo, Gretna, LA, for Plaintiffs/Appellees/Secondary Appellants, Charles S. Reily, et al.
    Thomas E. Balhoff, Judith R. Atkinson, Carlton Jones, III, Roedel, Parsons, Koch, Blache, Balhoff & McCollister, Baton Rouge, LA, for Defendants/Appellants/Cross-Appellees, State of Louisiana.
    Court composed of NED-E. DOUCET, JR., Chief Judge, SYLVIA R. COOKS and MICHAEL G. SULLIVAN, Judges.
   h COOKS, Judge.

This case involves a donation of approximately 15,000 acres of land to the State of Louisiana in 1911. The heirs of the original donees appeal the trial court’s 'judgment finding they failed to prove seismic activity authorized under the auspices of the State was sufficient to vitiate the donation and revert the property to the heirs. The State also appeals the trial court’s judgment contending it improperly issued an advisory opinion prohibiting the State from ever engaging in mineral operations on the land.

FACTS AND PROCEDURAL HISTORY

On November 4, 1911, by authentic notarial act, Charles Willis Ward and Edward Avery ' Mcllhenny transferred ■ and donated ■ approximately 15,000 acres of property in Vermilion Parish to the State of ■ Louisiana, Department of Wildlife & Fisheries. ■ The stated purpose of the donation was for the establishment of a wildlife preserve, now known as the State Wildlife Refuge.

This particular dispute is the continuation of ongoing litigation that began in 1958, when the Ward-Mcllhenny Heirs (hereafter the Heirs) instituted suit against the State seeking a declaratory judgment that the State failed to comply with the conditions contained in the act of donation, and as such, title to the land was never conveyed to the State. ' This was based on the Heirs’ contention that the instrument in question was not an act of donation, but merely a “commitment to convey the land described therein to the State of Louisiana at some future -time when the conditions enumerated therein had been complied with.” The suit Was dismissed without reaching the merits of the request for declaratory judgment because the Heirs failed to name an indispensable party, the State of Louisiana, as a defendant. Ward v. La. Wild Life and Fisheries Comm’n, 224 F.Supp. 252 (E.D.La.1963).

Un 1970, the State filed a possessory action against the Heirs and certain corporations who claimed mineral interests in the property through mineral leases granted by the Heirs. The Heirs converted the matter into a petitory action by claiming ownership of the property. They also claimed ownership of the mineral rights by virtue of a mineral reservation included in the donation. The Heirs contended the donation did not transfer ownership of the property and/or that they were entitled to a rescission of the donation as a result of the State’s failure to comply with certain conditions in the act of donation.

The district court entered judgment in favor of the State, finding there was a donation, that the State had substantially complied with the conditions in the act of donation and that the State was the lawful owner of the property and the accompanying mineral interests. The judgment did recognize the Heirs had a reversionary interest in the property and in the future they could sue to enforce this right in the event the State failed to comply with the conditions set forth in the donation. This court affirmed the district court’s judgment, finding the record showed “adequate compliance with the conditions,” and the supreme court denied writs. See State v. Ward, 314 So.2d 383 (La.App. 3 Cir.1975), writ denied, 319 So.2d 440 (La.1975).

The present lawsuit was instituted by the Heirs on April 30, 1981. They claimed a “massive geological exploration” conducted by the State breached certain conditions in the donation, particularly the condition prohibiting the use of the land for “any other purposes other than a refuge or reserve for wildlife.” The Heirs argued the violation of the conditions resulted in a rescission of the donation and a|3reversion of the property together with its mineral rights to them. The Heirs alternatively pled, even if it is determined the State did not violate the conditions of the donation, the 1911 donation created an imprescripta-ble mineral servitude in their favor.

The State reconvened for a declaratory judgment to determine whether or not the donation prohibits mineral exploration or production of minerals on the property. The State also filed a motion for partial summary judgment, seeking a dismissal of the Heirs’ claim that the donation created an imprescriptable mineral servitude in their favor.

In response to the State’s reconventional demand, the Heirs filed exceptions of res judicata, no right of action, and no cause of action. They also filed their own motion for partial summary judgment, alleging there was no issue of material fact as to the existence of an imprescriptable mineral servitude created by the donation.

The district court rendered judgment granting the State’s motion for partial summary judgment and denying the Heirs’ motion for partial summary judgment. The district court also overruled the Heirs’ exceptions to the State’s reconventional demand. The Heirs appealed the judgment.

In Reilly v. State of Louisiana, 533 So.2d 1341 (La.App. 3 Cir.1988), unit denied, 536 So.2d 1219 (La.1989), this court noted that, because a trial on the merits was not held, its review was limited to an examination of the district court’s rulings on the various exceptions and motions for partial summary judgment. In affirming the grant of the State’s motion for partial summary judgment, this court noted “the mineral servitude reserved in the act of donation was extinguished in 1921 by liber-ative prescription resulting from nonuse of ten years.” Id, at 1346. We also noted that there was a final, definitive judgment on this issue rendered in this court’s 1¿opinion in State v. Ward, 314 So.2d 383.

Following rendition of a final judgment recognizing the State’s ownership of the mineral rights and the State’s substantial compliance with the conditions of the donation, the only remaining issue in the pending case was whether the State’s geological exploration in the mid-1970’s caused the donation to be revoked and revert the property-back to the heirs. On April 24, 2002, the State filed a motion for summary judgment requesting the Heirs’ suit on this issue be dismissed. Both parties filed memoranda on the motion. On November 27, 2002, the Heirs filed their own motion for summary judgment. The State filed a supplemental memorandum in support of its summary judgment motion clarifying the relief it was seeking:

In the prayer of the motion, the state prays that “plaintiffs’ suit should be. dismissed, with prejudice, at plaintiffs’ cost.” Thus, as plaintiffs’ case involves only past conduct on the State Wildlife refuge, specifically the seismic exploration in 1975 and 1976, the only issue presented by the Motion for Summary Judgment is whether such seismic activity requires the revocation of the Act of Donation and the return of the State Wildlife Refuge to the heirs of the donors. The State is not seeking adjudication of its reconventional demand at this time.

After a hearing on the motions, the trial court granted the State’s motion for summary judgment, finding the “court was not presented with sufficient [evidence] that the past seismic activity conducted ... would be enough to vitiate the donation.” In response to the Heirs’ motion for summary judgment, the trial court noted in its written reasons for judgment that the State “presented] a valid argument that any ruling regarding future mineral exploration would be an advisory opinion made in the abstract.” Despite this reservation, the trial court went on to state that it “does not appear possible with today’s technology” that future mineral explorations could be conducted without damaging the wildlife and habitat of the area. The trial court concluded “while not intending to totally eliminate the possibility of oil and gas exploration, it is this Court’s judgment that any attempts at surface exploration and | ¿testing is not permitted under the donation in question.” Thus, the trial court rendered a judgment “declaring that seismic or other mineral activities, including drilling or production activities on the refuge are inconsistent with the intent of the grant to the State contained in the donation.”

The State appealed the portion of the trial court’s judgment on future exploration activity, contending it was nothing more than an advisory opinion and was issued without the presentation of any expert testimony. The Heirs cross-appealed, contending the trial court erred in granting the State’s motion for summary judgment.

ANALYSIS

We find merit in the State’s assignment of error. We recognize the “long-standing principle that our courts are without jurisdiction to issue or review advisory opinions and may only review matters that are justiciable.” Duplantis v. Louisiana Board of Ethics, 00-1750, 00-1956, pp. 11-12, (La.3/23/01), 782 So.2d 582, 589. In Jordan v. Louisiana Gaming Control Board, 98-1122, 98-1133, 98-1134, pp. 18-19 (La.5/15/98), 712 So.2d 74, 85, the supreme court, quoting from Abbott v. Parker, 259 La. 279, 308, 249 So.2d 908, 918 (1971), defined a justiciable controversy:

A “justiciable controversy” connotes, in the present sense, an existing actual and substantial dispute, as distinguished from one that is merely hypothetical or abstract, and a dispute which involves the legal relations of the parties who have real adverse interests, and upon which the judgment of the court may effectively operate through a decree of a conclusive character.

The supreme court has instructed the lower courts to refrain from rendering declaratory judgments when the issue presented to the court is academic, theoretical, or based on a contingency which may not arise. Louisiana Supreme Court Committee on Bar Admissions ex rel. Webb v. Roberts, 00-2517 (La.2/21/01), 779 So.2d 726; Jordan, 712 So.2d 74.

At no point in any of the original or amended petitions filed in this matter have the Heirs sought an outright ban on all mineral development, exploration, and activity on the property. The record also shows there has been no such activity since the geological exploration in the 1970’s, nor is there evidence in the record that any future activity is planned. Thus, there is no justiciable controversy on this issue.

We also note summary judgments are only intended to decide legal issues. Although the trial court made an apparent factual determination that future mineral explorations could not be conducted without damaging the wildlife and habitat of the refuge, there was no agreement between the parties as to this conclusion nor was the State afforded the opportunity to present any expert testimony. Therefore, the trial court’s conclusion was reached on nonestablished facts and is advisory in nature. Accordingly, we reverse this portion of the judgment.

The Heirs appealed the portion of the trial court’s judgment granting the State’s motion for summary judgment holding the facts undisputedly show the seismic activity was not sufficient to vitiate the donation. In the Act of Donation several conditions are set forth for the use of the donated property. Section 2 of the Act of Donation establishes the purpose for the donation and provides:

The Refuge or Reserve shall be maintained perpetually as an absolute game and non-game bird, fur bearing animal, fish and terrapin Refuge or Reserve by said donee, its successors or assigns.

Section 12 provides that the rights to the minerals are reserved for the donors and sets forth conditions for any potential mineral development. It provides:

The donors for the benefits of themselves, their heirs and assigns, reserve all deposits of minerals, gas, oils, salt and phosphates under the surface of the lands herein to be deeded to the donee, with the right to develope [sic], operate and take out the same, provided it shall be done in such a manner as not to defeat the purposes of a game Refuge or Reserve for which the property is to be deeded.

^Section 15 of the Act of Donation allows for the reversion of the property if the donor fails to carry out its obligations:

In the event that the donee or its successors or assigns or the State of Louisiana, should at any time in the future fail to faithfully observe or carry out all the obligations imposed in the Deed of Gift then, and in that event, the title to the property herein to be donated shall revert to the donors, their heirs, successors or assigns with all the improvements thereon.

Although the court in State v. Ward, 314 So.2d 383, using a “substantial compliance” analysis, recognized the State’s ownership of the refuge, it noted under the terms of the donation the Heirs had a reversionary interest and in the future could sue to enforce this right in the event the State failed to comply with the conditions set forth in the donation. After the decision in State v. Ward, the State granted a permit for geophysical exploration of the subject property to estimate the potential mineral interests in the land. To that extent, seismic activities were conducted on the property in 1976 and 1977.

The Heirs now contend the trial court erred in using a substantial compliance analysis as to the terms of the donation. It points to the language in Section 2 which contains the term “absolute” in describing the refuge, and contends any exploration activity is per se in derogation of an “absolute” refuge. However, the State notes the Act of Donation also recognizes the right of the donors to construct drainage canals and operate a ship canal, the right to destroy animal life proven to be destructive to game life on the refuge and, in particular, Section 12 gives the donors the right to develop all deposits of minerals, gas, oils, salt and phosphates under the surface of the refuge, provided it is done in a manner as not to defeat the purposes of a refuge. Our Supreme Court in Voinche v. Town of Marksville, 124 La. 712, 715, 50 So. 662, 663 (1909), stated when “endeavoring to arrive at the intention of the parties, all the recitals in the act of donation should be construed together.”

|RClearly, the Act of Donation itself provides for mineral development as long as it does not defeat the purpose of the refuge. By its very terms, the Act of Donation does not find maintenance of the property as an absolute refuge and development of minerals to be mutually exclusive. Thus, for reversion to be warranted, sufficient evidence was required that the seismic activity was so disruptive that it defeated the underlying purpose of the property as a game refuge. The trial court held the Heirs failed to' produce sufficient evidence that the past seismic activity was enough to vitiate the donation. The seismic activity complained of occurred over twenty-five years ago, and the property has continued to operate as a wildlife refuge since that date. Our review of the record finds no evidence that the seismic activity defeated the underlying purpose of the Act of Donation. We find the trial court’s judgment in this regard is consistent with the law and evidence.

DECREE

For the foregoing reasons, the judgment of the trial court granting the State’s Motion for Summary Judgment is affirmed. The portion of the judgment “declaring that seismic or other mineral activities, including drilling or production activities on the refuge are inconsistent with the intent of the grant to the State contained in the donation" constitutes an advisory opinion by the trial court and is reversed. All costs of this appeal are assessed against the Ward-Mcllhenny Heirs.

AFFIRMED IN PART; REVERSED IN PART.

      . In the mid-1970's, the State issued a permit to Shoreline Geophysical Services, Inc., for the geophysical exploration of the subject property. Under that permit, Shoreline conducted seismic activities in 1976 and 1977 to estimate the potential mineral interests in the land.


author: I,SULLIVAN, Judge.

text:
    Michael Gregory THEVENOT, Sr. v. Christine Dronet THEVENOT.
    No. 03-684.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 23, 2003.

      David L. Carriere, Attorney at Law, Opelousas, LA, for Defendant/Appellant, Christine Dronet Thevenot.
    Thomas E. Gibbs, Thomas E. Gibbs & Associates, Baton Rouge, LA, for Plaintiff/Appellee, Michael Gregory Thevenot, Sr.
    Court composed of NED E. DOUCET, Jr., Chief Judge, SYLVIA R. COOKS, and MICHAEL G. SULLIVAN, Judges.
   I,SULLIVAN, Judge.

Christine Thevenot appeals the trial court’s refusal to enforce an extrajudicial agreement she had with Michael Thevenot, Sr., her former husband, for him to pay her child support for their son, Michael Thevenot, Jr. For the following reasons, we reverse the judgment of the trial court.

Facts

The facts are not in dispute. Michael and Christine were married and had one child, Michael, Jr. They were divorced on July 31, 1998. After the divorce, Michael, Jr. lived with Christine until January 1999. At that time, the trial court designated Michael as domiciliary parent due to Christine’s relocation to Houston. In August 1999, Christine was again designated domiciliary parent and has remained domiciliary parent since that time.

Various pleadings filed by the parties in this matter reflect that at different times each party requested child support from the other, but support was never established by the court. Instead, in August 1999, Michael and Christine agreed between themselves that he would pay her $250.00 per month support for Michael, Jr. In July 2001, Michael filed a rule to modify custody. In response, Christine filed exceptions to the rule and filed a rule seeking arrearages in child support or, alternatively, to have child support set. In her rule, Christine alleged that Michael owed her $5,500.00 for the period August 1999 through August 2001. A hearing was held on August 21, 2001. After the hearing, the trial court maintained Christine as the domiciliary parent and ordered that the issue of support be referred to the hearing officer. There was never a referral to the hearing officer.

In June 2002, Michael filed another rule, seeking designation as domiciliary parent. Christine again filed a rule for child support arrearages; she also sought to | ¡.establish support in accordance with the child support guidelines set forth in La. R.S. 9:315-315.22. In her rule, Christine sought the $5,500.00 she had previously requested and an additional $350.00 in ar-rearages which she asserted arose from a second agreement she and Michael made in September 2001.

On September 26, 2002, these rules were considered by the hearing officer, who recommended that Michael be ordered to pay Christine $5,500.00 in arrearages. Michael objected to the recommendation, and a hearing was held before the trial court. During the hearing, the trial court recited the following facts which Michael admitted and counsel for the parties stipulated were correct:

And this is what I understand the facts to be: That at one point in time [Michael] had agreed to pay $250 a month. And during a period of time from January of '99 to August of '99, [Michael] actually kept the child, but there was no support being paid by the mother while [Michael] kept the child. It is not disputed that from August of '99 to July of 2001 the child has been predominantly with the mother and that [Michael has] paid only $500 during that period of time. And the question is whether or not an arrearage is owed from August of '99 through July of 2001 at the rate of an alleged agreement of $250 a month and whether or not that can be made executory in a court of law.
I consider that to be a stipulation, because I just gave you the opportunity to present any evidence to the contrary. If there’s no evidence to the contrary, that’s what I consider having taken place.

The parties also stipulated that in September 2002 they amended their original support agreement, increasing Michael’s monthly support obligation from $250.00 to $325.00, and that Michael had not paid $325.00 for the month of July 2002.

After taking the matter under advisement, the trial court determined “there is no legal authority for the legal enforcement of child support created, by extrajudicial agreement” and “[a] court order of child support, with a delinquency, must be established before this court can make a judicial determination of an arrearage.” | ^Consequently, the trial court refused to award Christine a judgment for the child support arrearages Michael agreed to pay her but did not.

Discussion

The basis for the payment of child support is found in La.Civ.Code art. 227 which provides:

Fathers and mothers, by the very act of marrying, contract together the obligation of supporting, maintaining, and educating their children.

“A parent’s child support obligation is a primary continuous obligation.” Fink v. Bryant, 01-987, p. 5 (La.11/28/01), 801 So.2d 346, 349. It cannot be renounced or suspended. Dubroc v. Dubroc, 388 So.2d 377 (La.1980). At issue in Dubroc was an agreement by divorced parents to suspend one-half of the father’s child support obligation when the child resided with the father. The trial court found the agreement could not be enforced; the court of appeal reversed. The supreme court reviewed the legal obligation of parents to support their children and the right of former spouses to collect that support and found no legal prohibition to a parent’s agreement to suspend the right to compel the payment of support, explaining:

Of course, an essential prerequisite to such a conventional modification of a parent’s right to receive support payments is implied. The parent may not, by suspension of this right, thwart the purpose for which the right is established, i.e., the enforcement of the child’s right to support and upbringing.
For these reasons, an agreement by a parent to suspend his right to receive child support payments will not be enforced unless it meets the requisites for a conventional obligation and fosters the continued support and upbringing of the child. To allow the parent to suspend his right to receive support payments under circumstances contrary to the child’s interests, would be inimical to the ultimate goal of support and upbringing of the child. On the other hand, if the parties clearly agree to a suspension of the payments, and such agreement does not interrupt the child’s maintenance or upbringing or otherwise work to his detriment, the agreement should be enforceable.

Id. at 380.

Thereafter, in Aldredge v. Aldredge, 477 So.2d 73 (La.1985), the supreme court determined that parties who entered into a consent judgment regarding the payment of child support could waive the requirement of proving a change in circumstances for purposes of a later request for modification of those payments. The court found that the requirement of proving a substantial change of circumstances for modification of support awards was judicially created and that an agreement waiving the requirement does not violate public policies because:

It merely allows the parties to come to an amicable agreement on the amount of child support or alimony with the reassurance that the court will be able to review this agreement at a later date to ensure its fairness. Extrajudicial resolution of family matters without costly litigation will be promoted, since the parties will be more willing to come to an agreement between themselves, knowing that they may return to litigate the issue should the need arise. As the trial court noted in this case, it would be contrary to good public policy to preclude the parties to a consent decree from stipulating that they could return to litigate the issue of child support without proving a change of circumstances.

Id. at 75.

The overriding interest of the State in custody matters is the best interest of the child. Baggett v. Baggett, 96-453 (La.App. 3 Cir. 4/23/97), 693 So.2d 264. A logical extension of this tenet and the concepts approved in Dubroc, 388 So.2d 377, and Aldredge, 477 So.2d 73, is that parents can agree between themselves to establish child support. If they do, there must be proof of a specific agreement. Casey v. Casey, 02-246 (La.App. 4 Cir. 5/22/02), 819 So.2d 1108. Such an agreement is enforceable, if it satisfies “the requisites for a conventional obligation and fosters the continued support and upbringing of the child,” Dubroc, 388 So.2d at 380, and does not “derogate from laws enacted for the protection of the public interest.” La.Civ.Code art. 7.

[¡/Michael contends that there was no specific agreement for him to pay Christine support for Michael, Jr. A close reading of the exchange between the trial judge and Michael, as well as the stipulation entered by counsel, reveals that this contention is without merit. Michael admitted to the trial judge that he agreed to pay Christine $250.00 per month in support but claimed the agreement was modified. However, he failed to prove that Christine later agreed to a modification of the agreement.

By agreeing on their child support obligation, Michael and Christine simply did what they are legally obligated to do under La.Civ.Code art. 227. There is no indication that the agreement was not in Michael, Jr.’s best interest. The law does not prohibit parents from mutually agreeing to support arrangements for their children, nor does the law require that parents demand and obtain support from each other or that they enforce child support judgments whether rendered by courts or stipulated by the parties and approved by courts.

For these reasons, we reverse the trial court’s determination that Michael and Christine’s agreement for Michael to pay $250.00 per month for Michael Jr.’s support is not a valid, enforceable agreement. Further, we find that Michael owes Christine $5,500.00 for the period of August 1999 to July 2001, which represents $250.00 per month during that time period less $500.00 paid by Michael.

As previously noted, in September 2002, Michael and Christine agreed to increase Michael’s child support from $250.00 per month to $325.00 per month. Michael paid Christine $325.00 per month thereafter, except for the month of August 2002. Accordingly, Michael owes Christine an additional $325.00 for the month of August 2002.

IfiOur consideration of this matter includes the case of Stogner v. Stogner, 98-3044 (La.7/7/99), 739 So.2d 762, where the supreme court held that, when parties stipulate in open court regarding their child support obligation, the adequacy of the of amount of child support established by the stipulation must be reviewed and approved by the trial court in light of the child support guidelines. Michael and Christine did not stipulate before the trial court regarding child support; therefore, Stogner, 739 So.2d 762, is inapplicable to our determination herein. See La.R.S. 9:315.1(A).

Decree

The judgment of the trial court is reversed. Judgment is rendered in favor of Christine Thevenot and against Michael Thevenot in the amount of $5,825.00, together with legal interest thereon from the date of judicial demand until paid. All costs of this appeal are assessed to Michael Thevenot.

REVERSED.