author: | .WILLIAMS, Judge.

text:
    Peggy Dunlap Flanagan LAMKIN, Plaintiff-Appellant, v. Benjamin Neil FLANAGAN, Defendant-Appellee.
    No. 37,911-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 28, 2004.
    Rehearing Denied Feb. 26, 2004.

      Robert E. Bethard, Coushatta, for Appellant.
    William R. Jones, Coushatta, for Appel-lee.
    Before WILLIAMS, PEATROSS and LOLLEY, JJ.
   | .WILLIAMS, Judge.

The plaintiff, Peggy Lamkin, appeals a judgment applying three lump-sum payments by the Social Security Administration (SSA) as a credit to offset the child support arrearage amount owed by the defendant, Benjamin Flanagan. After subtracting the credit amounts and adding interest, the trial court found that Flanagan owed a balance of $4,845.76 on the prior support judgment and that his seized property did not qualify for a homestead exemption. For the following reasons, we reverse in part, amend and affirm as amended.

FACTS

Peggy Lamkin and Benjamin Flanagan were married in 1979. Three children were born of the marriage, E.C.F., A.J.F and E.E.F. Subsequently, the parties were divorced and Flanagan was ordered to pay child support to Lamkin for the three children. Flanagan failed to make support payments and in June 1993, a judgment was entered against him in Caddo District Court in the amount of $20,295 for unpaid child support. The judgment reduced Flanagan’s continuing child support obligation to whatever sum was paid by the Veteran’s Administration (VA), and recognized that the amount was subject to change. A short time later, the VA discontinued payments to Lamkin.

In 1994, the SSA began making payments on behalf of the children after Flanagan was found totally disabled due to extensive medical problems related to his exposure to Agent Orange while serving in the Vietnam War. Social Security benefit reports introduced into evidence showed that SSA made separate lump-sum payments on behalf of the three children. In April 121994, a payment of $6,080 was made for E.C.F., representing “back pay from 6/89-4/94.” In August 1994, SSA made payments of $6,528 for A.J.F. and $6,528 for E.E.F., representing “back pay from 6/89-9/94.” Thereafter, SSA made monthly payments for the children.

In December 2001, Lamkin filed a motion in Red River Parish District Court to make the June 1993 Caddo judgment exec-utory. The motion was granted and Lam-kin seized immovable property owned by Flanagan in Red River Parish under a writ of fieri facias to satisfy the judgment. Flanagan sought a temporary restraining order to stop a scheduled sheriffs sale, arguing that he was entitled to a credit against the amount due on the 1993 judgment as a result of the SSA payments. He also filed a declaration of domicile alleging that the seized property was subject to a homestead exemption under LSA-R.S. 20:1.

After a trial, the court issued a written opinion finding that the seized property did not qualify for a homestead exemption. In addition, the trial court found that Flanagan was entitled to a credit for the entire amount of SSA lump-sum payments against the child support arrearage. The court rendered judgment setting the amount of $4,845.76 as the balance due on the 1993 judgment and assessing costs equally between the parties. The motions for new trial filed by Lamkin and Flanagan were denied. Lamkin now appeals the judgment and Flanagan has filed an answer to the appeal.

DISCUSSION

Lamkin contends the trial court erred in crediting the SSA lump-sum payment for E.C.F. against the child support arrearage amount in the June |a1993 judgment. Lamkin argues that because she did not receive this payment, Flanagan should not have been given a credit for those funds to offset the amount of past due child support he owed.

An order of child support is for the benefit of the children, even though directed paid to a parent or other custodian. If the sum directed to be paid by the father is paid through social security benefits derived from the father’s account, the purpose of the order for support has been accomplished. Faul v. Faul, 548 So.2d 957 (La.App. 3rd Cir.1989).

A trial judge is given reasonable latitude in determining matters affecting the welfare of children, and a determination based upon the facts of a particular case is entitled to great weight. Furthermore, the trial judge is given great discretion in either granting or modifying child support awards and his decision will not be set aside or amended on appeal absent a clear abuse of that discretion. McCloud v. McCloud, 544 So.2d 764 (La.App. 3rd Cir.1989).

In the present case, Lamkin testified that she did not receive the April 1994 lump-sum payment by SSA on behalf of E.C.F. She stated that at the time of the payment, the child was living with Flanagan in Texas. Lamkin introduced into evidence a letter from the SSA stating that she was appointed as representative payee for her son on July 20, 1994, and that “no retroactive benefits” were paid to her for E.C.F.

Flanagan testified that he did not specifically recall receiving a lump-sum payment for E.C.F. from SSA. However, Flanagan acknowledged that when the child was living with him in 1994, a check from SSA was | ¿deposited in his son’s bank account.

Although the record indicates that Lam-kin did not receive the lump-sum payment made by SSA on behalf of E.C.F., this evidence does not support her contention that the amount of the payment should not be included in a credit for social security benefits paid for the child. The evidence shows that SSA issued a lump-sum payment for E.C.F. in April 1994. An award of child support is for the child’s welfare and if the support obligation of the father is paid through social security benefits resulting from the father’s disability, the purpose of the child support award has been accomplished. Thus, even though the SSA payment was not issued to Lam-kin, the funds were paid for the support of the child. Consequently, we cannot say the trial court erred in including the amount of the lump-sum payment for E.C.F. in any credit applied against Flanagan’s support obligation.

Credit for Social Security Benefits

Lamkin contends the trial court erred in the method used to credit the lump-sum payments against the child support arrearage. She argues that a portion of the SSA payments should have been applied to offset the child support amounts which became due during the period between the date of judgment and the date when the SSA payments were received.

In his brief, Flanagan contends that his past due and future child support obligations have been completely extinguished by the social security benefits already paid on behalf of his children. In support of his position, Flanagan cites the 1993 judgment provision stating that his child |fisupport obligation “is hereby reduced to whatever sum is paid to petitioner, Peggy Dunlap Flanagan, by the Veteran’s Administration. The court recognizes that the amount presently being paid to petitioner, for the benefit of the minor children is $401 per month, which may be increased or decreased by the Veteran’s Administration pursuant to law, policy or change of circumstances.” Contrary to Flanagan’s contention, a reasonable reading of the judgment as a whole demonstrates that this language does not mean that the child support arrearage of $20,295 would be satisfied by any amount of government benefits subsequently paid for the children. Rather, the language indicates that Flanagan’s continuing child support obligation, beyond the arrearage amount fixed in the judgment, would be limited to the amount of government benefits payable to his children under the law. Thus, Flanagan’s argument lacks merit.

In the prior cases of Faul, supra, McCloud, supra, and Folds v. Lebert, 420 So.2d 715 (La.App. 4th Cir.1982), the courts allowed each father a credit toward the amount of past due child support because the children received social security income as dependents of their disabled fathers. In those cases, as here, the social security benefits were paid to the mother for the children because the father was disabled and was prevented from working during that period. As stated in Faul, the father is entitled to credit for such payments against his liability under the support order.

After reviewing the jurisprudence and the record, we agree with the trial court that Flanagan should receive a credit for the social security lump-sum payments to offset the child support arrearage amount. However, we | (¡must consider the issue of whether all or a portion of such payments should be used as a credit to reduce the amount of past due child support. In her brief, Lamkin contends the trial court erred in applying the entire amount of SSA lump-sum payments as a credit to offset the child support arrearage of $20,295 reflected in the 1993 judgment.

As previously noted, the 1993 judgment provides that Flanagan’s support obligation subsequent to rendition is limited to the amount of government disability benefits paid. The SSA records admitted into evidence show that the lump-sum payment for E.C.F. was for the period through April 1994 and that the payments for A.J.F. and E.E.F. were for the period through September 1994. As a result, a portion of the SSA benefits paid represents payment of Flanagan’s child support obligation for the period after rendition of the 1993 judgment. Thus, the entirety of the lump-sum payments should not have been applied as a credit to offset the ar-rearage amount.

The payment of $6,080 for E.C.F. represents a period of 59 months, with equal monthly payments of approximately $103.05. The post-judgment period of June 1993 through April 1994 is eleven months, so the child support amount for this period is $1,133.55. Thus, the credit amount which should have been applied to the arrearage is $4,946.45. The payments of $6,528 for A.J.F. and E.E.F. represent a period of 64 months, with equal monthly payments of approximately $102. The post-judgment period of June 1993 through September 1994 is 16 months, so the child support for this period is $1,632. The credit amount which should have 17been applied to the arrearage is $4,896 for each child. Subtracting the total credit of $14,738 from the arrearage amount of $22,194 results in a balance due on the judgment of $7,456 plus interest until the date paid.

Using this method to apportion the credit amount is consistent with the 1993 judgment and is necessary to satisfy Flanagan’s child support obligation for the interim period between the date of judgment and the payment of social security benefits for the children. Consequently, we must find that the trial court abused its discretion in failing to apply a portion of the SSA payments to child support for the post-judgment period. We shall amend the judgment accordingly.

Homestead Exemption

In his answer to the appeal, Flanagan contends the trial court erred in finding that the seized property did not qualify for a homestead exemption. Flanagan argues that he is entitled to an exemption because Lamkin failed to establish his intent to abandon the homestead.

The bona fide homestead consists of a residence occupied by the owner and the land on which the residence is located. The homestead is exempt from seizure and sale under any writ or process whatsoever, except as provided by the statute. This exemption extends to $25,000 in value of the homestead. LSA-R.S. 20:1.

Louisiana law requires a homestead to be “occupied” for the homestead exemption to apply. However, after a person claiming the homestead exemption has actually resided upon the property with his family, the change of residence to another place does not, of itself, cause a ^forfeiture of the homestead right. In re Chalin, 21 B.R. 885 (WD.La.1982). Abandonment of a homestead is not to be presumed, and even temporary absence does not create a presumption of intent to abandon. The party alleging abandonment has the burden to clearly establish that abandonment has occurred. Chalin, supra.

In the present case, Becky Craig, the Red River Parish Assessor, testified that Flanagan’s property was subject to a homestead exemption until 1998. Craig stated that at the time, she regularly drove past the property and observed that the electricity meter had been removed and the residence appeared to be unoccupied. Craig testified that she instructed her deputy to inspect the premises and that based on the inspection results, she canceled Flanagan’s homestead exemption. Craig stated that she did not mail written notice of the cancellation to Flanagan, but said he would have learned about the action when the tax bills were issued. She testified that in 1992, Flanagan visited the Assessor’s office to explain that his mailing address was in Texas because he was living there temporarily due to illness. Craig stated that parish records indicated Flanagan had registered to vote in 1993, but had never voted.

E. Vaughn Womack, Jr., the chief deputy assessor, testified that he personally inspected Flanagan’s property in February 1999. Womack stated that he looked through a window of the house and saw a pile of “clothing or something” on the floor in one room. Womack did not recall seeing any furniture in the room and did not see any indication that someone was residing in the house. Womack testified that from his observations, he 19determined that the house was unoccupied.

Flanagan testified that in 1974, he purchased the residence located in Coushatta, Red River Parish, and had lived in the house with Lamkin during them marriage. Flanagan stated that he was exposed to Agent Orange while serving in Vietnam as an Army Ranger from 1968 to 1969. He testified that his health deteriorated after his return from the war, and that in 1988, he suffered a stroke and went into a diabetic coma. Flanagan stated that his friends then moved him to Columbus, Texas, to help him get medical treatment in VA hospitals for diabetes and post traumatic stress disorder.

Flanagan testified that he ' planned to keep the Red River Parish property as his primary residence and that he did not intend to permanently live in Texas. Flanagan stated that he returned to his house in February 1994, when Lamkin told their son to leave her residence, and that he stayed in Coushatta for approximately five months. However, he returned to Texas with his son to obtain treatment for Agent Orange intoxication.

Flanagan testified that he did not spend the night at his Coushatta property during 1995 or 1996. He stated that he spent two or three nights at the house in 1997 and 1999, but had not stayed overnight in the house since that time. Flanagan explained that the house was not habitable for a sick person after the roof leaked and caused damage to some of the sheetrock. Flanagan testified that in the Fall of 2000, his friends began renovating the house and that new floors, ceilings and windows had been installed. Flanagan stated that he had intended to permanently return to the house in May 2002, but could not because of his prolonged daily treatment for a Imsevere eye infection.

Flanagan testified that the electricity in the house was disconnected several times when he did not have enough money to pay the bill, but power was restored when he was able to pay the amount due. Flanagan stated that he kept furniture in the house until recently when he stored some items to allow space for additional renovation. He acknowledged that he has a bank account in Texas, but not in Louisiana. Flanagan testified that he has always intended to maintain the property in Cous-hatta and return to live in the house when physically able.

In her brief, Lamkin emphasizes the fact that when she seized Flanagan’s property in December 2001, the assessor’s office did not recognize the property as homestead exempt and that Flanagan did not file á declaration of domicile or homestead until after he learned of the seizure. However, we note that LSA-R.S. 20:1 does not require that such a declaration be filed in the public records as a prerequisite for a valid homestead exemption from seizure and sale. The statute requires that a homestead be occupied as a residence by the owner. Because Flanagan resided on the property with his wife and children during the marriage, the issue is whether his subsequent actions constituted an abandonment of his homestead.

Abandonment is a question of intent based upon the circumstances and is not to be presumed. As the party alleging abandonment, Lamkin bore the burden of establishing that Flanagan had abandoned his homestead. Lamkin presented evidence that Flanagan was absent from the residence for Nan extended period of time. However, the change of residence to another place does not, of itself, cause a forfeiture of the homestead right. Although Flanagan acknowledged that he had not stayed in the house since 1999, he testified that during that time period, he continued to seek medical treatment from doctors in Texas. Additionally, Flanagan stated that water damage and mold had prevented him from staying in the house at the time because of his physical condition.

Flanagan testified that he always intended to return to his home in Red River Parish when he was physically able and that renovations had begun in 2000 to enable him to live in the house. There was no evidence that Flanagan ever attempted to sell the property, despite his financial difficulties.

After reviewing the record and considering all of the circumstances, we conclude that Lamkin failed to satisfy her burden of establishing by a preponderance of evidence that Flanagan intended to abandon the property as his homestead. To the contrary, the evidence showed that Flanagan took steps to maintain the property by paying the taxes and making repairs. Consequently, the trial court erred in denying Flanagan a homestead exemption for his property in Red River Parish. Thus, we shall reverse that part of the judgment.

Court Costs

Lamkin contends the trial court erred in assessing her with one-half of the court costs. She argues that splitting the costs between the parties was not equitable because the court found that Flanagan owed a balance due on |12the 1993 judgment.

While it is a general rule that the party cast in judgment should be taxed with costs, the trial court may assess costs of a lawsuit in any equitable manner. LSA-C.C.P. art.1920. Upon review, a trial court’s assessment of costs will be reversed only upon a showing of an abuse of discretion. Grocery Supply Co. v. Winterton Food Stores, 31,114 (La.App.2d Cir.12/9/98), 722 So.2d 94.

Here, the trial court found that Flanagan owed a balance on the prior judgment. Although Lamkin did not receive the complete relief she sought at trial, she was initially required to go to court because of Flanagan’s failure to pay child support. Consequently, we must find that the trial court abused its discretion in assessing costs equally and we shall reverse that part of the judgment.

CONCLUSION

For the foregoing reasons, the trial court’s judgment is amended to increase the balance due to Peggy Lamkin under the 1993 arrearage judgment to the amount of $7,456, plus interest at the rate set by the trial court. That part of the judgment denying Benjamin Flanagan a homestead exemption for the seized property in Red River Parish and assessing costs to Lamkin is hereby reversed. Costs of this appeal are assessed one-half to the appellant, Peggy Lamkin, and one-half to the appellee, Benjamin Flanagan.

REVERSED IN PART; AMENDED AND AFFIRMED AS AMENDED.

APPLICATION FOR REHEARING

Before BROWN, WILLIAMS, PEATROSS, MOORE and LOLLEY, JJ.

Rehearing denied.


source: Caselaw Access Project

author: JLjDREW, j.

license: Public Domain

text:
    Wanda Ann Sellers DAY and Douglas C. Day, Plaintiffs-Appellants, v. MOREHOUSE GENERAL HOSPITAL, Defendant-Appellee.
    No. 37,803-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 28, 2004.

      John Layne Hammons, Shreveport, An-nis Cornell Flournoy, for Appellants.
    William Edward Bourgeois, Morgan City, for Appellee.
    Before CARAWAY, DREW and MOORE, JJ.
   JLjDREW, j.

From a 1967 blood transfusion administered at Morehouse General Hospital (MGH), Wanda Ann Day contracted hepatitis C, which resulted in her 1999 death at age 63. The decedent and her husband brought a product/striet liability claim based upon the sale and administration of defective blood. Following her death, Mr. Day and the couple’s adult children amended the petition and sued for damages for wrongful death based upon the contaminated blood. The trial jury concluded that the administration of blood did not constitute a sale and found in favor of MGH. The Day family appealed. At issue is whether the plaintiffs have a cause of action for the alleged wrongful 1999 death which arose from the contaminated 1967 blood transfusion. For the following reasons, the judgment is affirmed.

We conclude that the trial court erred in denying MGH’s Motion for Summary Judgment, which urged that the Day family had no cause of action in strict liability in 1967 when the transfusion was administered or in 1999 when their wrongful death action came into existence at Mrs. Day’s death. Therefore, discussion of a number of issues raised by the parties to this appeal are pretermitted.

FACTUAL AND PROCEDURAL TIME LINE

07-15-1967 Mrs. Day admitted to MGH for appendicitis and cystic ovary.

07-18-1967 Mrs. Day’s appendix and right ovary removed; Mrs. Day transfused with one pint of whole blood.

07-22-1967 Mrs. Day discharged.

08-31-1967 Mrs. Day hospitalized with diagnosis of serum jaundice.

1209-10-1967 Discharged from MGH.

11-1997 Diagnosed with hepatitis C.

10-22-1998 Days filed a product liability suit against MGH, based on the sale and administration of contaminated blood.

11-10-1998 MGH answered.

04-02-1999 Mrs. Day died of hepatitis C.

06-02-1999 Plaintiff amended to claim wrongful death and survival action.

07-12-1999 MGH answered and filed third party demand against Dr. Naj Klam, who supplied all blood to MGH.

07-30-1999 In second supplemental petition, Day added adult children as plaintiffs.

08-12-1999 MGH answered.

09-23-2002 Dr. Klam’s Motion for Summary Judgment granted and MGH’s claim against him dismissed with prejudice.

11-04-2002 Jury ruled 11-1 in favor of defendant. The “Civil Jury Verdict Form” returned by the jury answered in the negative, “Do you find that the blood given to Wanda Day was a sale of a product?” Based on that conclusion, no other jury interrogatories were answered.

10-15-2002 Judgment signed.

10-21-2002 Notice of Judgment sent.

10-25-2002 Plaintiffs filed a Motion for JNOV.

01-27-2003 JNOV denied.

It is undisputed that the blood administered to Mrs. Day in 1967 infected her with hepatitis C, which resulted in her death in 1999. Further, the parties agree that hepatitis C was not identified as a distinct disease and labeled until 1989.

_kLAW

In David v. Our Lady of the Lake Hospital, Inc., 2002-2675 (La.7/2/2003), 849 So.2d 38, Justice Weimer, writing for the majority, included a detailed discussion of the history of Louisiana’s blood shield laws. The first blood shield law was enacted in 1968, treated administration of blood as a service (not a sale subject to warranty), and withstood several constitutional challenges. David, supra. Mrs. Day’s transfusion obviously predated the blood shield laws.

In 1975, the legislature enacted a series of laws limiting the rights of medical malpractice claimants, including the requirement that actions be brought within one year of the date of alleged malpractice or, in any case, within three years from the act. La. R.S. 9:5628. In DeBattista v. Argonaut-Southwest Ins. Co., 403 So.2d 26 (La.1981), the court first held that a plaintiff seeking recovery for a tainted 1973 transfusion had a cause of action in strict liability. David, supra.

In 1981, the legislature enacted La. C.C. art. 2322.1 and La. R.S. 9:2797, which directed that strict liability was not applicable to physicians, hospitals, etc., for transfusions of human blood which resulted in the transmission of viral diseases undetectable by appropriate medical tests. The legislature limited the laws to causes of action arising after the effective dates of La. C.C. art. 2322.1 and La. R.S. 9:2797. In Branch v. Willis-Knighton Medical Center, 92-3086 (La.4/28/94), 636 So.2d 211, the supreme court ruled that for a cause of action vested prior to the enactment |4of the blood shield laws, the plaintiff and other pre-1981 recipients of defective blood could not be divested of their rights against providers of blood. David, supra.

In 1999, the legislature enacted La. R.S. 9:5628.1, which directed that an action for damages based upon negligence, products liability, strict liability, tort, breach of contract or otherwise, must be brought within one year of the date of the act or one year from discovery of damage, but in any event, must be brought within three years from the act. This provision did not apply to legal proceedings filed prior to the effective date of R.S. 9:5628.1; i.e., June 30, 1999. David, supra.

In Williams v. Jackson Parish Hospital, 00-3170 (La.10/16/01), 798 So.2d 921, the court, citing Branch, supra, concluded that pre-1982 claims against hospitals in strict liability are not traditional medical malpractice cases and are not governed by R.S. 9:5628, but by La. C.C. art. 3492. David, supra.

In David, supra, a prescription case, the court held that plaintiffs claim of strict liability in tort for the 1979 transfusion of blood contaminated with hepatitis C, filed against the private hospital which was not a qualified health care provider at the time of the blood transfusion, was prescribed pursuant to the provisions of La. R.S. 9:5628. The David opinion overruled all previous inconsistent holdings.

The Day Family Argument re Applicable Law

Plaintiffs acknowledged that the decedent’s survival action prescribed in 1968, since she was hospitalized shortly after the 1967 transfusion with |Bserum hepatitis. Therefore, the Days limited their claims against MGH for wrongful death under strict liability for the administration of contaminated blood. In the Days’ view, all hepatitis C cases arising from transfusions administered prior to July 15, 1982, give rise to a cause of action in strict liability as a matter of law. Plaintiffs argue that on the effective date of the blood shield law, July 15, 1982, the administration of blood became a service, but prior to that date, blood was a product sale, as a matter of law. The plaintiffs assert that only two defenses are available under law in this action; i.e., (1) the blood was unavoidably unsafe, or (2) the damage was caused by a third party. Plaintiffs’ contentions that the strict liability law is applicable to this 1967 transfusion is belied by the supreme court’s statement in David, supra, which specifically pretermitted the question of whether a health care provider who administered blood contaminated with hepatitis C prior to 1975 could be held strictly liable to a patient.

The Day family maintains that the date of the transfusion determines which law applies, and the applicable law for their strict liability claim is La. C.C. art. 2317 in effect in 1967, which stated, in pertinent part:

We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody.

IfiThe plaintiffs contend that for MGH to escape liability, it had to prove at trial, but failed to do so, that the blood given in 1967 to Mrs. Day was incapable of being made safe, was properly prepared, and was accompanied by a proper warning.

MGH’s Argument re Applicable Law

Because the Day family admitted the decedent’s survival action prescribed in 1968, MGH urges that the plaintiffs wrongful death action did not arise until Mrs. Day’s death in 1999. In Taylor v. Giddens, 24,054 (La.10/18/93), 618 So.2d 834, the supreme court explained that survival and wrongful death actions are separate and distinct even though they arise out of the same tort, since each arises at a different time and addresses damages for totally different injuries and losses. In Taylor, supra, the court applied the medical malpractice prescriptive period (La. R.S. 9:5628) to the survival action. To the wrongful death action, Taylor applied the one-year period for delictual actions. La. C.C. art. 3492. Since the Day family’s cause of action for wrongful death arose at Mrs. Day’s 1999 death, MGH contends that the blood shield laws were in force and applicable to this action.

DISCUSSION

An exception is a defense, other than a denial or an avoidance of the demand. La. C.C.P. art. 921. The purpose of a peremptory exception is to have plaintiffs’ claim declared legally nonexistent or barred by effect of law, leading to a dismissal. La. C.C.P. art. 923. An exception of no cause of action is peremptory and may be noticed by the trial or appellate court on 17its own motion. La. C.C.P. art. 927. No evidence may be introduced at any time to support or controvert the objection that plaintiffs’ petition fails to state a cause of action. La. C.C.P. art. 931. If the grounds of the peremptory exception of no cause of action cannot be removed by amendment of the pleadings, then the action shall be dismissed. La. C.C.P. art. 934. The function of the peremptory exception of no right of action is to determine whether the plaintiffs belong to the class of persons to whom the law grants the cause of action asserted in the suit. Deal v. Powell, 37,686 (La.App.2d Cir.12/10/03), 862 So.2d 398.

In Chauvin v. Sisters of Mercy Health System, St. Louis, Inc., 2001-1834 (La.App. 4th Cir.5/8/02), 818 So.2d 833, writ denied, 2002-1587 (La.9/30/02), 825 So.2d 1194, plaintiffs sued in 1998 for hepatitis C allegedly contracted in a 1963 transfusion. The court affirmed the dismissal of the plaintiffs’ action via summary judgment based on the conclusion that no cause of action for strict liability based upon a blood transfusion existed in 1963. The Chauvin opinion pointed out that in 1971, Weber v. Fidelity & Cas. Co. of N.Y., 259 La. 599, 250 So.2d 754 (1971), the court defined fault for purposes of products liability and marked the point at which the Louisiana Supreme Court adopted the strict products liability in tort theory, which was reflected in the Restatement (Second) of Torts, 1965. The Chauvin court carefully observed the strained comparison between a defective manufactured product as opposed to naturally-occurring blood and noted that hepatitis C is not a by-product of the preparation of blood for ^transfusion. The first time the court recognized strict liability for a blood transfusion was in DeBattista, supra, in 1981.

The Chauvin opinion stated:

Hepatitis C was unknown in 1975. Turnage v. Columbia Lakeside Hospital, 98-1263 (La.App. 5 Cir. 3/30/99), 731 So.2d 919, 922. Per force, it was unknown in 1963. Prior to the time that it was specifically identified as Hepatitis C, it was lumped in the category of non-A non-B Hepatitis. Even this category was unknown in 1963. As its existence was unknown, no test existed in 1963 to detect it. In 1963 no steps would have been taken to prevent what was not known to exist....

Chauvin, supra, at p. 835.

Although the Restatement (Second) was published in 1965, we observe that the seminal Louisiana cases on strict liability discussed by Chauvin were decided long after Mrs. Day’s 1967 transfusion. Adopting the Chauvin court’s reasoning, we conclude that a strict liability cause of action for an allegedly defective blood transfusion did not exist at the time of Mrs. Day’s 1967 transfusion.

Even if we found that the plaintiffs properly proceeded under strict liability, we find that evidence presented at trial supported the findings that the blood was “unavoidably dangerous” when transfused into Mrs. Day in 1967. Further, there was also testimony that the responsibility for testing the blood rested with a third party, not MGH.

Dr. Philip Weinstein, the decedent’s family care physician at her death, testified:

• Her death resulted from hepatitis C complications.
la* In 1967, no test was available for hepatitis C, which had not been identified as a disease.
• Blood had great utility, and there was no substitute for blood.

The plaintiffs’ expert, Dr. David Dies, a gastroenterologist and a hepatologist, stated that he spent a significant part of his time treating hepatitis C patients. Dr. Dies testified:

• In the 1960s, there was no test for hepatitis C, which disease was unknown.
• Although the ALT test for elevated liver enzymes was developed by 1960, the blood banking community did not decide to use the test until 1986.
• Once the ALT test was used, there was a reduction in the number of persons contracting post-transfusion hepatitis C.
• An ALT test would reveal elevated liver enzymes in 75% of hepatitis C patients, but 25% of hepatitis C sufferers do not have elevated enzymes.
• Today, hepatitis types E, F, G, H and I exist, for which there are no tests.
• It was reasonable for MGH to rely upon the blood bank to perform appropriate testing in 1967 and now.
• There is no way in 1967 and 2002 to make sure blood products are completely safe because the current tests are not 100% and the ALT was even less accurate [in the 1960s].

Dr. Najeeb Klam testified that he was a pathologist who, as a consultant, ran the laboratory and blood bank in 1967 for MGH. Dr. Klam stated:

• The donor came from a Memphis blood bank.
• The 1966 standards of the American Association of Blood Banks (AABB) were applicable to all blood banks in 1967 that the possibility of viral hepatitis in blood could not be eliminated by testing.
|in* MGH followed all standards in the transfusion of blood.
• Only doctors could order a patient infused with blood.
• Blood bank standards in 1967 did not include testing for elevated liver enzymes.
• A 1981 JAMA article reported that ALT testing could have detected 29% of post-transfusion hepatitis.

Nancy Cook, the present head medical technologist at MGH, testified that in 1967 and in the present, the AABB required MGH to recheck the blood type and Rh factor. She agreed to previous testimony that in 1967, there was no test to detect hepatitis C, which was unknown. MGH had no records on the donor of the blood transfused into Mrs. Day.

Dr. Johnny Max Emanuel, the current lab director at MGH, testified that in 1967 there was no test for hepatitis C, which had not been identified as a disease at that time. Further, MGH administered the blood to Mrs. Day in compliance with the applicable standards in effect. Any additional testing beyond typing and Rh factoring is the responsibility of the site where the blood is collected. Dr. Emanuel was unaware of any hospital that tested for liver enzymes before administering blood. The 1981 study said that 29% of hepatitis C sufferers would be eliminated by ALT testing, not 75% as stated by Dr. Dies. In 1968, the hospital charged service and storage fees for donated blood, which lasted 21 days. Although we have decided that the Days had no cause of action in strict liability in 1967, even if we applied strict liability to this claim, the blood administered to Mrs. Day was “unavoidably unsafe.”

InThe plaintiffs’ wrongful death claim arose when Mrs. Day died in 1999. Taylor v. Giddens, supra. In 1999, Louisiana’s blood shield laws had been in effect for many years. The Day family’s June 2, 1999, suit predated the 1999 enactment of R.S. 9:5628.1 and the amendment of La. R.S. 9:2797, which came into effect June 30, 1999, and applied only to actions filed after the effective date. Prior to the 1999 revisions, La. R.S. 9:2797 stated:

The screening, procurement, processing, distribution, transfusion, or medical use of human blood and blood components of any kind and the transplantation or medical use of any human organ, human tissue, or approved animal tissue by physicians, dentists, hospitals, hospital blood banks, and nonprofit community blood banks is declared to be, for all purposes whatsoever, the rendition of a medical service by each and every physician, dentist, hospital, hospital blood bank, and nonprofit community blood bank participating therein, and shall not be construed to be and is declared not to be a sale. Strict liability and warranties of any kind without negligence shall not be applicable to the aforementioned who provide these medical services.

The 1971 Weber decision marks the point at which the Louisiana Supreme Court adopted the strict products liability in tort theory, which was reflected in the Restatement (Second) of Torts, 1965. The plaintiffs’ contentions that applying the 1990 version of the blood shield law to a 1967 transfusion is an impermissible retroactive application of the law are without merit. In Martin v. State, 2000-1044 (La.App. 4th Cir.8/22/01), 811 So.2d 3, writs denied, 2002-0820, 2002-0888 (La.2/7/03), 836 So.2d 95, a viral hepatitis claim from a 1977 blood transfusion, the court applied the blood shield laws in effect when the decedent died in 1994 and when the suit was filed in 1995. The Martin court at p. 8 went on to hold:

11gSpecifically, the [blood shield] statutes protect from strict liability certain classes of persons and entities with respect to specified types of activities, so that it is based upon their status. Consequently, the statutes are not laws governing conduct. Thus, the application of the statutes to a transfusion occurring prior to their enactment does not constitute “retroactive” application of the statutes:

Therefore, to apply the blood shield law in effect at the time Mrs. Day died and when her suit was filed is not an impermissible retroactive application of the law.

DECREE

For the foregoing reasons, we find that the Days did not have a cause of action against MGH. We affirm the trial judgment and dismiss plaintiffs’ action with prejudice, since no amendment to the petition exists under the circumstances of this case. All costs are assessed against the plaintiffs.

AFFIRMED.

      . See, David, supra, 849 So.2d at pp. 41-49.

      . Restatement (Second) of Torts § 402A, comment k, states that "[t]here are some products which in the present state of human knowledge, are quite incapable of being made safe for their intended use.... Such a product, properly prepared, and accompanied by proper directions and warning, is not defective, nor is it unreasonably dangerous.... The seller of such products, again with the qualification that they are properly prepared and marketed, and proper warning is given, where the situation calls for it, is not to be held to strict liability for unfortunate consequences attending their use, merely because he has undertaken to supply the public with an apparently useful and desirable product, attended with a known but apparently reasonable risk.”

      . DeBattista was legislatively overruled and specifically overruled by the supreme court in David, supra.

      . See Justice Victory's discussion in Anderson v. Avondale Industries, Inc. 2000-2799 (La.10/16/01), 798 So.2d 93, pp. 97-99, which cites 1 Planiol, Treatise on the Civil Law, § 243 (La.St.L.Inst.Trans.1959).


author: _[iLOLLEY, J.

text:
    Steve PRATOR, Sheriff of Caddo Parish, Louisiana, Plaintiff-Appellee, v. CADDO PARISH, Defendant-Appellant.
    No. 38,085-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 28, 2004.
    Rehearing Denied Feb. 26, 2004.

      Office of the Parish Attorney, Parish of Caddo by Charles C. Grubb, Parish Attorney by Alex J. Washington, Assistant Parish Attorney, for Appellant.
    Wiener, Weiss & Madison by John M. Madison, Jr., Mark L. Hornsby, Shreveport, for Appellee.
    Before CARAWAY, MOORE and LOLLEY, JJ.
   _[iLOLLEY, J.

Caddo Parish, Louisiana (“Caddo Parish”) appeals a declaratory judgment by the First Judicial District Court, in favor of Steve Prator, Sheriff of Caddo Parish, Louisiana (“Sheriff Prator” or “CPSO”). For the following reasons, the portion of the judgment granting declaratory relief is reversed, and that portion of the judgment denying appellant’s reconventional demand is affirmed.

FACTS

This lawsuit arises from a dispute between Caddo Parish and Sheriff Prator over funding obligations at Caddo Correctional Center (“CCC”). Caddo Parish owns CCC and Sheriff Prator is the keeper of CCC and has the obligation to operate the facility. See, La. R.S. 15:704.

Caddo Parish constructed CCC in the mid-1990’s before sufficient funding to operate the facility was procured. Sheriff Prator’s predecessor sought and obtained a one-fourth cent sales and use tax for the specific purpose of operating CCC. Additionally, a one-tenth cent sales and use tax was approved taking effect on January 1, 2003. This one-tenth cent sales and use tax was levied to provide supplemental funding for the salaries, pensions, and benefits of Deputy Sheriffs for the CPSO, i.e., it was dedicated to a separate purpose than that of the one-fourth cent sales and use tax and is presently being utilized by Sheriff Prator.

For accounting purposes, the sheriffs office is divided into two funds: (1) the General Fund and (2) the CCC Fund. The primary source of | ¿funds for the General Fund is a 14.93 mill property tax. In addition to the one-fourth cent sales and use tax, the primary source of funds for the CCC Fund, is as follows: (1) revenue generated at CCC; (2) per diem payments for state, federal and other non-parish prisoners; (3) per diem payments of not less than $3.50 pursuant to La. R.S. 33:1432 by Caddo Parish for parish inmates; and (4) other operating expenses paid by Caddo Parish for maintenance and equipment for CCC. Both funds benefit from the one-tenth cent sales and use tax dedicated to deputy salaries which Sheriff Prator began collecting on January 1, 2003.

On October 25, 2001, the Parish Administrator for Caddo Parish, William T. Hanna, Jr., met with Sheriff Prator and advised him that “pursuant to a recently discovered statutory law,” he believed that Caddo Parish was entitled to a credit for payments it made to the sheriffs office for fixed expenses attributable to the keeping of state prisoners at CCC. These expenses amounted to approximately $600,000 annually. The “statutory law” relied upon by Caddo Parish is La. R.S. 15:824(B)(l)(a) and (B)(2), which provides that when a state prisoner is housed in a parish jail, and the Department of Corrections pays the sheriff $22.39 per day for “keeping and feeding” that state prisoner, then “no additional compensation from the parish governing authority shall be paid to the sheriff for the care of those prisoners being held for the department....”

Caddo Parish interpreted this statute to give it the authority to deduct from its payments to CPSO a percentage of certain fixed expenses from fiCCC based on the average number of non-parish inmates housed at CCC (approximately 25%). Although Caddo Parish did not question its obligation to fund some of CPSO’s expenses, such as the rent for the sheriffs offices, no agreement was reached on other expenses in question, nor on Caddo Parish’s demand for a reimbursement credit it claims it is due from CPSO. Because the parties could not agree on a common interpretation of the applicable statutes, the sheriffs office filed a lawsuit for declaratory judgment and Caddo Parish reconvened with an action for declaratory judgment.

At the trial of the matter, Sheriff Prator introduced evidence indicating that the expenditures in the CCC Fund, according to his office’s accounting techniques, exceeded the revenues it generated. The sheriff contended that if Caddo Parish were to prevail in these proceedings it would not be adhering to its statutory responsibilities to fund CCC.

Caddo Parish argued that the evidence presented by CPSO to substantiate this claim was manufactured. As a basis for this assertion, it maintained that the posture taken by CPSO to account for its bailiffs was misplaced. Caddo Parish contended that the bailiffs have no bearing on the operational issues of CCC as none of the bailiffs report to work at CCC according to the job description of bailiffs entered into evidence. The difference of accounting opinion stems from the fact that the expenses of the bailiffs were taken out of the CPSO’s General Fund sometime in February 2002 and were transferred from the General Fund to the CCC Fund after half of the fiscal year of 2002 had elapsed. It is contended by Caddo Parish |4that the CPSO then made accounting adjustments to shift all expenses pertaining to the bailiffs from the General Fund to the CCC Fund retroactive to July 1, 2001. The complaint of Caddo Parish is that when this occurred, the CPSO did not, however, transfer revenues generated by the bailiffs to counterbalance the situation and that those revenues continue to be revenues of the General Fund of the CPSO. Caddo Parish further contended that regardless of the existence of CCC, the sheriffs office would still need the same number of bailiffs for their courtroom duties and, therefore, the funding should come from the sheriffs General Fund budget. Furthermore, the parish contended that due to the transfer of expenses into the CCC Fund retroactive to July 1, 2001, the CCC Fund showed a deficit.

A subsequent issue raised at trial was whether Caddo Parish is obligated to fund the sheriffs Training Academy. The training academy is not only used by the CPSO, but is also open to other law enforcement agencies, on a fee basis, for specified training for their officers and/or deputies. It is assumed that the primary goal is to gain post certification for the participating officers and/or deputies.

Prior to trial, the parties entered into a joint stipulation that the Parish would “provide space and/or pay rent, heat and illumination expenses for all offices and substations of the sheriff to perform his functions as Chief Law Enforcement Officer of Caddo Parish.” At trial, the CPSO raised the issue of funding the sheriffs Training Academy specifically for the first time. The trial court allowed evidence to be heard on the issue of the | ./Training Academy over the objection of Caddo Parish who argued that the introduction of such evidence expanded the sheriffs petition. Sheriff Prator took the position that the Training Academy issue fell within the general intent of La. R.S. 33:4713, which in pertinent part states that:

Each parish shall provide and bear the expense of a suitable building and requisite furniture for the sitting of the district and circuit courts and such offices, furniture and equipment as may be needed by the clerks and recorders of the parish for the proper conduct of their offices and shall provide such other offices as may be needed by the sheriffs of these courts and by the tax collectors and assessors of the parish and shall provide the necessary heat and illumination thereof.

Caddo Parish argued that the parties had already resolved the issue of its responsibility to provide space and/or pay rent, heat and illumination expenses for the Sheriffs Office within the context of a joint stipulation. It therefore maintained that CPSO should be precluded from raising that issue at trial. Caddo Parish further contended that the Training Academy is outside the definition of “offices” under the pertinent language of La. R.S. 33:4713. Finally, Caddo Parish argued that the Training Academy is self-sufficient due to the fact that the facility is used by numerous paying agencies outside Caddo Parish.

The trial court issued a judgment rejecting Sheriff Prator’s request for declaratory judgment on certain issues where it found there was no controversy between the CPSO and Caddo Parish. This portion of the judgment is not on appeal. The trial court granted in part other requests for declaratory judgment prayed for by Sheriff Prator and rejected the requests for declaratory judgment prayed for by Caddo Parish in its reconventional demand. This appeal by Caddo Parish ensued.

|,RELEVANT STATUTES

The following is a summary of the relevant laws establishing the statutory duties of the Sheriffs Office and the financial responsibilities of Caddo Parish for funding:

Citation Summary
15:304 Parish responsible for “all expenses incurred ... by the arrest, confinement and prosecution of persons accused or convicted of crimes.... ”
15:702 The governing authority of each parish “shall be responsible for the physical maintenance of all parish jails and prisons.... ”
15:704 Designates each sheriff as the keeper of the public jail, and directs that he “shall by all lawful means preserve the peace and apprehend all disturbers thereof....”
15:705(A) Requires a sheriff to provide each prisoner with wholesome and sufficient food, and also adequate clothing.
15:824(B) Provides for reimbursement by the State to a sheriff for the “keeping and feeding of prisoners in jail the sum of twenty-two dollars and thirty-nine cents per day....”
33:1432(1) Requires a parish to pay a sheriff not less than $3.50 per day as a fee “for keeping and feeding of prisoners in jail.... ”
33:4713 Requires a parish to provide a sheriff “such other offices as may be needed by the sheriffs,” as well as “the necessary heat and illumination therefor.”
33:4715 Requires a police jury to provide “a good and sufficient jail.”

The following is a summary of the applicable statutes codified at La. R.S. 33:9001-11, which empowers the sheriff to raise revenues to finance his facilities and services through the creation of a continuing legal entity in 17each parish known as a law enforcement district, whose corporate existence survives the term of office of any individual sheriff.

Citation Summary
33:9001 Creates a law enforcement district in each parish “for the purpose of providing financing to the office of sheriff for that parish....”
33:9003(A) Except in Orleans Parish, establishes without voter approval a basic millage to fund the district, limited in amount to commissions on tax collections previously collected by the sheriff.
33:9003(B)(C) Authorizes a sheriff to call elections seeking voter approval of levies by the district of additional ad valorem taxes or sales taxes.
33:9004(B) Authorizes districts to enter into binding contracts for a duration beyond the term of office of the incumbent sheriff.
33:9008 Provides that creation of such districts shall not “be interpreted as diminishing any of the authority of the sheriff....”
33:9010 Authorizes districts to issue bonds for a term of up to thirty years secured by their full faith and credit, or by a pledge of their revenues, to finance immovable or movable property “of use or benefit” to the sheriff. (See subsection C(l)).

DISCUSSION

On appeal, Caddo Parish lists five assignments of error, one of which addresses the CPSO’s training facility and the other four relating to our discussion of the issue of justiciable controversy.

| sTraining Academy

In the third assignment of error, Caddo Parish argues that the trial court erred in admitting evidence concerning the sheriffs Training Academy and finding that it falls within the requirements of La. R.S. 33:4713. It is this court’s opinion that the term “offices” does not denote a training facility. Furthermore, we find that the issue of the parish’s financial responsibility to furnish the sheriff with “offices” was resolved in the joint stipulation of the parties and, therefore, was not properly before the trial court.

A stipulation has the effect of binding all the parties and the court. Dolsen v. City of New Orleans, 559 So.2d 50 (La.App. 4th Cir.1990), citing, R.J. D’Hemecourt Petroleum, Inc. v. McNamara, 444 So.2d 600, 601 (La.1983), cert. denied, 469 U.S. 820, 105 S.Ct. 92, 83 L.Ed.2d 39 (1984). A trial court is bound to render judgment in accordance with the stipulations of the parties where the stipulations were not in derogation of the law. General Investment, Inc. v. Thomas, 400 So.2d 1081 (La.App. 4th Cir.1981), writ denied, 401 So.2d 353 (La.1981). In Wickliffe v. Cooper & Sperrier, 161 La. 417, 108 So. 791 (1926), the Louisiana Supreme Court determined that stipulations between the parties in a specific case were binding upon the trial court in the disposition of that case, where the stipulations were not in derogation of the law. Johnson v. T & LNAS/Domino Sugar, 2003-0058 (La.App. 4th Cir.08/20/03), 854 So.2d 985, writ denied, 2003-2648 (La.12/12/03), 860 So.2d 1160. Stipulations have the effect of judicial confessions. R.J. D’Hemecourt Petroleum, supra. A judicial confession is indivisible and may be revoked only on the ground of error of fact. La. C.C. art. 1853; Mollere v. Creole Engineering Sales Co., 570 So.2d 212 (La.App. 5th Cir.1990), writ denied, 575 So.2d 371 (La.1991); Brockman v. Salt Lake Farm Partnership, 33,938 (La.App.2d Cir.10/04/00), 768 So.2d 836, writ denied, 2003-3012 (La.12/15/00), 777 So.2d 1234.

For the reasons assigned above, we find that the trial court was in error in hearing evidence regarding the Training Academy and therefore, we reverse that part of the trial court’s judgment.

Justiciable Controversy

Before giving any specific consideration to the remaining assignments of error brought by Caddo Parish, we must first consider whether a justiciable controversy was properly before the trial court. It is the finding of this court that it was not.

Trial courts are vested with wide discretion in deciding whether to grant or refuse declaratory relief. Louisiana Supreme Court Committee on Bar Admissions ex rel. Webb v. Roberts, 2000-2517 (La.02/21/01), 779 So.2d 726, Liberto v. Rapides Parish Police Jury, 1995-456 (La.App. 3rd Cir.11/02/95), 667 So.2d 552, 555. For a declaratory judgment to be granted, there must be a justiciable controversy, as courts are not permitted to issue advisory opinions based on a contingency which may or may not occur. Couvillion v. James Pest Control, Inc., 1998-2382 (La.App. 4th Cir.03/03/99), 729 So.2d 172, 174.

| 1flThe Louisiana Supreme Court has defined a justiciable controversy as follows:

... 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.

Jordan v. Louisiana Gaming Control Board, 1998-1122, 1998-1133, 1998-1134 (La.05/15/98), 712 So.2d 74, 85 (quoting from Abbott v. Parker, 259 La. 279, 308, 249 So.2d 908, 918 (La.1971)).

Courts should not decide abstract, hypothetical or moot controversies, or render advisory opinions with respect to such controversies. Louisiana Supreme Court Committee on Bar Admissions ex rel. Webb, supra, (citations omitted). 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, 2000-1750, 2000-1956, (La.03/23/01), 782 So.2d 582, 589.

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. Reily v. State of Louisiana, 2003-580 (La. App 3d. Cir.12/17/03), 864 So.2d 223, Louisiana Supreme Court Committee on Bar Admissions ex rel. Webb, supra; Jordan, supra.

Without doubt, for a trial court to entertain an action for declaratory relief, there must be a justiciable controversy and the question presented must be real and not theoretical. American Waste & Pollution Control Co. v. St. Martin Parish Police Jury, 627 So.2d 158, 162 (La.1993) Tugwell v. Members of Bd. of Hwys., 228 La. 662, 83 So.2d 893 (1955). Courts are not empowered to render advisory opinions on moot or abstract issues of law. Church Point Wholesale Beverage Co., Inc. v. Tarver, 614 So.2d 697 (La.1993); St. Charles Parish School Bd. v. GAF Corp., 512 So.2d 1165 (La.1987); In re Baer, 310 So.2d 537 (La.1975); State v. Board of Supervisors, 228 La. 951, 84 So.2d 597 (1955); Abbott, supra; Comment, Advisory Opinions and the Requisites of Justiciability in Louisiana Courts, 35 La. L.Rev. 898, 900 (1975).

Consequently, a declaratory action cannot generally be maintained unless it involves some specific adversary question or controversy asserted by interested parties and based on existing state of facts. Tugwell v. Members of Bd. of Hwys., supra. Thus eases submitted for adjudication must be justiciable, ripe for decision, and not brought prematurely. St. Charles Parish School Bd., supra.

Caddo Parish’s Assignment of Error No. 1:

In its first assignment of error, Caddo Parish contends the trial court erred in determining that it was obligated to pay all expenses of feeding and clothing the inmates at CCC, including costs of food preparation and laundry. The evidence bears out that the present arrangement between the two parties has more than sufficiently funded the expenses of CCC. Moreover, the evidence does not show that Caddo Parish has failed thus far in its duty to fulfill its financial obligation as mandated by the pertinent ^¡¡statutes. Therefore, it is clear that the issue of whether or not Caddo Parish should pay for food preparation and laundry for the inmates, is premature, or at best a contingency that has not yet arisen in this case. We therefore reverse this portion of the trial court’s judgment and find that there is no justiciable controversy on this point.

Caddo Parish’s Assignment of Error No. 2:

In this assignment of error, Caddo Parish argues that the trial court erred in finding there was a factual or legal basis for making it “responsible for the pay of witnesses, including deputies to the extent the same does not duplicate their salary.” There is no evidence that Caddo Parish failed to pay for any witnesses pursuant to its obligation under La. R.S. 15:304. Without a failure to act by the Parish, there can be no justiciable controversy regarding this issue. We therefore reverse the trial court’s declaratory judgment on this issue.

Caddo Parish’s Assignments of Error Nos. k and 5.

In its last two assignments of error, Caddo Parish contends that it is entitled to a credit for certain costs relative to the housing of out-of-parish inmates and for certain revenues generated at CCC. No evidence was presented that established that Caddo Parish actually deducted the above costs from the funding extended to CCC. This being the case, we find there is not a justiciable controversy regarding these issues, and thus, they were | ^prematurely addressed by the trial court. We therefore reverse this portion of the trial court’s decision.

Overall, we note that a careful review of the very complicated issues presented in this case reveals that CPSO is not in a negative financial position and that all of its financial responsibilities are presently being met with the income generated from CCC, the sheriffs tax base and through the continued financial support of Caddo Parish. Clearly, this entire law suit is based on contingencies that have not yet occurred. The evidence reveals that the meeting that precipitated this lawsuit was in and of itself an arena for discussions between two political entities that went askew. We find that Caddo Parish, to date, has not neglected or refused to fulfill its statutory responsibilities to the CPSO. We find that this action for declaratory judgment was premature and therefore was not warranted. We agree with Caddo Parish that these issues are best resolved between the two political entities as was intended under the law. If the political entities ultimately reach the point that they cannot successfully resolve issues between them then, and only then, can such a lawsuit be properly presented to a court for necessary determinations.

CONCLUSION

For the foregoing reasons, we reverse in part and affirm in part the trial court’s judgment in this case. Costs of this appeal are assessed equally to the parties.

REVERSED, IN PART; AFFIRMED, IN PART.

APPLICATION FOR REHEARING

Before STEWART, GASKINS, CARAWAY, MOORE and LOLLEY, JJ.

Rehearing denied.

STEWART and GASKINS, JJ., would grant rehearing.

      . Statutory summaries are excerpted from the summations succinctly presented in the Ami-cus Curiae Brief of the Louisiana Sheriffs' Association.

      . The evidence is not clear regarding whether Caddo Parish is paying only the $3.50 per diem statutory minimum. If Caddo Parish is obligated to furnish more than the $3.50 per diem statutory minimum, specific financial data should be presented by CPSO establishing the deficiency and evidence of Caddo Parish’s refusal to fulfill that obligation so that the amount owed may be calculated and a definitive judgment rendered.


author: 1, GREMILLION, Judge. 1!THIBODEAUX, J.,

text:
    Succession of Clifton J. DEROUEN v. Eugene DEROUEN and Linda Cannon.
    No. 03-623.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 28, 2004.

      Thomas M. Bergstedt, Felton Paul Leger, Brian W. Arabie, Bergstedt & Mount, Lake Charles, LA, for Appellee, Deborah H. Derouen.
    Andre’ Joseph Buisson, Woodley, Williams, etc., Lake Charles, LA, for Ap-pellee, Donald K. Derouen.
    Timothy O’Dowd, Lake Charles, LA, for Appellant, Eugene Derouen and Linda Cannon.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, GLENN B. GREMILLION, and ELIZABETH A. PICKETT, Judges.
   1, GREMILLION, Judge.

In this succession case, the trial court found that a clause in the testator’s will, which provided that his son was to receive a particular legacy of “an extra portion ... [of] an interest in [his] property equal to 15 acres of his choice,” was valid and refused to nullify the will. For the following reasons, we affirm and remand for further consideration.

FACTS

Clifton J. Derouen executed his last will and testament on August 6, 1999; he died on June 22, 2000. He had four children: Donald K. Derouen, Jarrett B. Derouen, Eugene C. Derouen, and Linda Derouen Cannon. In Section IV of his will, Clifton left a particular legacy to Jarrett that provided as follows:

As an extra portion, not subject to collation, I give and bequeath to my son, Jarrett B. Derouen, an interest in my property equal to 15 acres of his choice.

Both Jarrett and Donald were appointed co-executors of their father’s estate (Clifton Estate). Jarrett and Donald acted together in administering the estate until Jarrett’s death on October 17, 2000. After Jarrett’s death, Donald was confirmed as the sole executor of the Clifton Estate. Jarrett died before he exercised his choice as provided in Section IV of Clifton’s last will and testament.

Deborah Derouen, the widow and executrix of Jarrett’s estate, notified Donald that she, as Jarrett’s successor, selected the fifteen acres of land as provided in Section TV of Clifton’s last will and testament as Jarrett’s choice. Thereafter, Linda and Eugene filed a petition to nullify Clifton’s last will and testament. Deborah claims that Section IV of the last will and testament is still valid and that she J^hould be allowed to make the choice that belonged to Jarrett prior to his death. Donald, as the sole executor of the Clifton Estate, sought a declaratory judgment on the issue of whether Section IV is nullified because the legatee is deceased. After a trial on the merits, the trial court found that the provision bequeathing fifteen acres of land to Jarrett was valid as written, which allowed Jarrett’s heirs the right to choose that which was originally given to Jarrett in Section IV of Clifton’s last will and testament. From this judgment, Linda and Eugene appeal.

ISSUES

An issue in this case is whether a section of a last will and testament that gives an heir and co-executor of the estate an extra portion and power to choose an interest in the estate equal to fifteen acres of property is null where that heir died prior to making such choice. The second issue is whether the authority to make the selection of property shifts to the surviving executor of the estate, if the section in question is not nullified.

LAW AND DISCUSSION

In interpreting a -will, the courts in Louisiana are guided by La.Civ.Code arts. 1611 through 1616. These articles provide that the court must ascertain the intent of the testator and that the testator’s intent must be given effect. La. Civ. Code arts. 1611, 1612. “The above cited code articles direct us to interpret a testament in a way that furthers, rather than frustrates, the testator’s lawful intent.” Morgan v. Leach, 96-0173, p. 5 (La.App. 1 Cir. 9/27/96), 680 So.2d 1381, 1384. “The cardinal principle of the interpretation of acts of last will is to ascertain and honor the intent of the testator ascribing meaning to a disposition so that it can have effect.” Lingo v. Courmier, 95-542, p. 3 (La.App. 3 Cir. 11/2/95), 667 So.2d 1091, 1093, writ denied, 96-0795 (La.5/10/96), 672 So.2d 925.

In interpreting these articles, the courts endeavor to ascertain the testator’s intention, and all other rules of construction are only means to that end. The Supreme Court has indicated that the function of the courts is to carry out the intention of the testator and effect should be given to all language contained in the will if possible.

Succession of Bel, 377 So.2d 1380, 1383 (La.App. 4 Cir.1979). When the words of the testament are plain and unambiguous, the testator’s intent should be ascertained from the language used in the testament, giving the words used their usual significance. Succession of Vatter, 192 La. 657, 188 So. 732 (1939). The language used in the testament “must be understood according to its common, popular acceptation.” Id. at 668, 188 So. at 736. If the language of the testament is clear, its letter is not to be disregarded under the pretext of pursuing its spirit. La.Civ.Code art. 1611. The language, as well as Clifton’s intent, is plain and unambiguous. Clifton sought to give Jarrett an extra share of his property, of Jarrett’s choosing.

The provision in Clifton’s will at issue is in Section TV that gives Jarrett an interest in property equal to fifteen acres of his choice. Appellants first argue that Section IV violated La.Civ.Code art. 1572 because the testamentary disposition in Section IV was committed to Jarrett’s choice, a third person to the will. Louisiana Civil Code Article 1572 provides in pertinent part:

Testamentary dispositions committed to the choice of a third person are null, except as expressly provided by law. A testator may delegate to his executor the authority to allocate specific assets to satisfy a legacy expressed in terms of a value or a quantum, including a fractional share.

1¿(Additionally, appellants argue that, even if Jarrett is not a “third person” to the will, Article 1572 was still violated because Section IV left it to only one of two of the executors of the estate to make a distribution of property.

Initially, we shall determine if Jarrett is a third party to the will as it relates to this particular bequest. We note that Jarrett is both a legatee and a succession representative under the will. In that regard, Deborah contends that, because Section IV of the will is a particular legacy, Article 1572 and La.Code Civ.P. art. 3192 (which provides for the duties and powers of multiple succession representatives) are inapplicable to Clifton’s bequest to Jarrett. To support her position that Jarrett, as a legatee, is not a third party to the will, she cites four cases.

First, in Fontenot v. Fontenot, 339 So.2d 897 (La.App. 3 Cir.1976), writ denied, 342 So.2d 217 (La.1977), the issue involved whether the failure of the deceased to properly record a notarial adoption nullified the adoption, thereby allowing only the children of the deceased from a previous marriage, who were not adopted, to inherit as forced heirs from the deceased’s estate. The court, in a footnote, concluded that, under these particular facts, with respect to the public records doctrine, legal heirs are not generally regarded as third persons in the law. Id. at 904, n. 1. While the facts and issue in Fontenot are dissimilar to those in the case sub judice, the case does demonstrate that, if heirs were third parties, they could have relied on the pub-lie records doctrine and defeated the adopted daughter’s claim to be a forced heir.

Likewise, in Haggard v. Rushing, 76 So.2d 52 (La.App. 2 Cir.1954), the issue was a matter of whether the heirs were third persons with respect to the public | r,records doctrine. In Haggard, the deceased, prior to his death, executed a document in favor of Rushing authorizing him to use the surface of a piece of property for a fence. The deceased did not record this document. Upon Haggard, Sr.’s death, his children were placed in possession of his land and recognized as the owners. After a discussion on the interpretation of contracts, the court concluded that Haggard, Sr. gave Rushing a usufruct over the property. The children then claimed that, because that usufruct was not recorded, they were not bound to hon- or the contract as third parties. The court held that, as heirs of Haggard, Sr., they were bound by contracts made by him and, in that sense, they were not third parties. Again, while the facts of this case are not “on all fours” with Deborah’s position that Jarrett was not a third party to his father’s last will and testament, it demonstrates that heirs are not considered third parties in these instances. The last two cases cited by Deborah, Porterfield v. Parker, 189 La. 720, 180 So. 498 (1938), and Green v. McDade, 17 So.2d 637 (La.App. 2 Cir.1944), also pertain to the definition of a “third person” with respect to heirs and the public records doctrine and will not be discussed in detail in this opinion. However, the cases provide some guidance for our analysis and mitigate to the finding that legatees are not third parties to wills.

We have found no jurisprudence that directly addresses the issue that we are faced with in the instant case, that is, whether under Article 1572, an heir and/or particular legatee is a “third person” to whom a testamentary disposition is committed making that portion of the testament null and void.

In Tel-Americom, L.L.C. v. Columbia Telecommunications, Inc., 00-1989, p. 3 (La.App. 4 Cir. 5/16/01), 789 So.2d 627, 629, our colleagues of the fourth circuit discussed the following with respect to defining “third party:”

“Third party” is a term of art. Black’s [L]aw Dictionary, Sixth Edition, defines “Third party”:
One not a party to an agreement, a transaction, or an action but who may have rights therein
This is consistent, for example with Chapter 7 of Title IV of the Louisiana Civil Code (Art.1978, et seq.) entitled, “Third Party Beneficiary.”
[La.Civ.Code] art. 3506(32) [in Title XXV. Of the Signification of Sundry terms of Law Employed in This Code] defines “Third Persons” as:
With respect to a contract or judgment, third persons are all who are not parties to it....

The court goes on to note that the “definition of ‘third party’ or ‘third person’ as one not a party to an agreement is so time honored and universal that the courts of this state do not even feel it necessary to define the term when employing it.” Id.

At the outset, one would not consider the legatee a third party to a donation mortis causa in the same sense that one would not consider a vendee or donee a third party to their respective agreements or transactions. The legatee is “a party to an agreement, a transaction, or an action,” who has “rights therein.” Id.

Further, there is no definition of a third person in Article 1572. However, Comment (a) to the article sheds light on the meaning of the phrase “choice of a third person.” It reads:

The source of this Article is Article 1573 of the Civil Code of 1870, which originally provided that “the custom of willing by testament, by the intervention of a commissary or attorney in fact, is abolished.” In|71982 the article was amended to grant a testator limited power to delegate authority to an executor to select assets to distribute in satisfaction of certain legacies. The 1982 amendment to Article 1573 has been preserved and significantly expanded to permit the delegation of authority to an executor to select assets to distribute in all instances where the legacy of the share of the estate is designated by quantum or value. The revision clarifies that “quantum” includes fractional shares, such as one-fourth or one-half of something, and intentionally removes the language in Article 1573 (1870) that limits the ability to delegate such authority to the instances where the designation of the quantum or value is made “either by formula or by a specific sum”. This article permits delegation of authority in all instances where the legacy is a quantum or value, whether or not the bequest is by formula or by specific sum.

It is clear from the comment and the history of this article that former Article 1573 did away with the testator’s ability to appoint a third party, such as a commissary or attorney-in-fact, to decide the provisions of the will. Such is not the case at hand. Jarrett was a legatee and a party to the will and not a commissary or attorney-in-fact.

Moreover, granting a legatee the choice of certain assets is not in contravention of any of the rules for donations mor-tis causa. In Succession of Meeks, 609 So.2d 1035 (La.App. 2 Cir.1992), writ denied, 612 So.2d 86 (La.1993), the testator left to her nephew “twenty-five thousand together with the contents of my home and any other personal belongings of his choice which I shall own at the time of my death.” She left the remainder of her property to a church. The issue was whether the terms “and any other personal belongings” constitutes a bequest of the decedent’s entire estate to the nephew. The court held that the term “personal belongings” did not include financial assets and business property, but things that the testatrix had some intimate relation to such as household items, jewelry, her vehicle, etc. Thus, the court found that the church was the universal legatee of the remainder of the estate. Although not stated, it is implied that, as the universal legatee, the lschurch would receive all of the non-personal belongings and the personal items that remained after the nephew made his choice of items that he wanted.

Accordingly, we find that Jarrett was not a third party to the will and that Article 1572 is not applicable to the instant case. We affirm the trial court’s finding that the will was valid.

EFFECT OF JARRETT’S DEATH

Since the will is valid, Jarrett inherited his choice of fifteen acres from his father. The question now presented is whether Deborah, as Jarrett’s executrix, can make that choice. For this issue, the comments to La.Civ.Code art. 1586 provide some guidance. Comment (e) states, “An executor may be given the power to select assets to satisfy a general legacy without changing the nature of the legacy. See Civil Code Articles 1302 and 1725 (1870) and Article 1571 of this revision.” La. Civ. Code art. 1302 (1870) reads in part (emphasis added):

There is no occasion for partition, if the deceased has regulated it between his lawful heirs, or strangers, or if the deceased has expressly delegated the authority to his executor to allocate specific assets to satisfy a legacy expressed in terms of a quantum or value; and in such case the judge must follow the will of the testator or his executor.

Further, Article 1725 provides: “If a testator has designated the quantum or value of his estate which he bequeaths to a legatee either by formula or by specific sum, he may expressly delegate to his executor the authority to select assets to satisfy the quantum or value.” (Emphasis added). Finally, Article 1572 allows a testator to “delegate to his executor the authority to allocate specific assets to satisfy a legacy expressed in terms of ... a quantum, including a fractional share.” Clearly, the law | provides that an executrix may “allocate” and “select” assets to satisfy a legacy expressed in a quantum; ie., fifteen acres of his choice.

However, the record does not contain a copy of Jarrett’s testament nor was any testimony adduced at trial as to its contents. Accordingly, we must remand this case to the trial court to determine if Jarrett expressly delegated the authority to choose the certain acres to fulfill his legacy to the executor of his estate, Deborah. She may have been given the authority to choose the acres while another person(s) was named the legatee. If the testament does not expressly delegate the power to choose the acres to the executrix, but Deborah is the heir, she may choose the particular acres as an heir, a position which would not conflict with her role as executrix. If Jarrett did not expressly delegate the authority to choose, then the property devolves in the manner he expressly provided for and his heirs inherit the right to choose the fifteen acres.

CONCLUSION

For the above reasons, the judgment of the trial court regarding the nullity of Section IV of Clifton Derouen’s last will and testament is affirmed in all respects. This case is remanded to the trial court for further consideration. The costs of this appeal are taxed against the defendants-appellants, Eugene Derouen and Linda Derouen Cannon, in solido.

AFFIRMED AND REMANDED.

THIBODEAUX, C.J., dissents and assigns written reasons.

1!THIBODEAUX, J.,

dissenting.

We all agree on the law which is to be applied; my disagreement focuses on the interpretation of the various codal provisions. Indeed, La.Civ.Code arts. 1611-1616 focus on the intent of the testator. As the majority points out, we must focus on the lawful intent of a testator. Clifton sought to give his son, Jarrett, an extra portion of his property. Nothing, of course is wrong with this. But, it must be done correctly. The problems are that-Jarrett is a third person to the will, the provision attempting to give him an extra portion is ambiguous, and the will did not specifically delegate to Jarrett the authority to allocate as executor of Clifton’s estate.

The jurisprudence relied upon by the majority does not support its position. For instance, in Fontenot v. Fontenot, 339 So.2d 897 (La.App. 3 Cir.1976), writ denied, 342 So.2d 217 (La.1977), the court, in a footnote, concluded that under the particular facts of that case, legal heirs are not generally regarded as third persons in the law with respect to the public records doctrine. Fontenot at 904, n. 1. Because the facts and the issue in Fontenot are so dissimilar to the facts and issue in this case, the court’s holding in Fontenot is not dispositive of the issue in here. Likewise, in Haggard v. Rushing, 76 So.2d 52 (La.App. 2 Cir.1954), the public records doctrine was implicated. Again, the facts do not support Deborah’s position that Jarrett is not a third party to his father’s last will and testament. The last two cases, Porterfield v. Parker, 189 La. 720, 180 So. 498 (1938) and Green v. McDade, 17 So.2d 637 (La.App. 2 Cir.1944) also pertain to the definition of a “third person” with respect to heirs and the public records doctrine. The public records doctrine is not an issue in this case. The majority’s reliance on these cases is misplaced.

Neither side contests the indisputable fact that Jarrett was not a party signatory to Clifton’s last will and testament. Only the testator, Clifton, signed the will. To the extent that jurisprudence is persuasive authority under Louisiana’s civil law system, my interpretation of and reliance upon Tel-Americom, L.L.C. v. Columbia Telecommunications, 00-1989, (La.App. 4 Cir. 5/16/01), 789 So.2d 627, is different than that of the majority’s. In Tel-Americom, the fourth circuit explained:

“Third party” is a term of art. Black’s [L]aw Dictionary, Sixth Edition, defines “Third party”:
One not a party to an agreement, a transaction, or an action but who may have rights therein
This is consistent, for example with Chapter 7 of Title IV of the Louisiana Civil Code (Art.1978, et seq.) entitled, “Third Party Beneficiary.”
[La.Civ.Code] art. 3506(32) [in Title XXV. Of the Signification of Sundry terms of Law Employed in This Code] defines “Third Persons” as:
With respect to a contract or judgment, third persons are all who are not parties to it....

Id. at 629.

|3The court goes on to note that the “definition of ‘third party’ or ‘third person’ as one not a party to an agreement is so time honored and universal that the courts of this state do not even feel it necessary to define the term when employing it.” Id.

Deborah argues that even if Jarrett is considered a third person to Clifton’s last will and testament, that Jarrett, as executor, had “authority to allocate specific assets to satisfy a legacy ...” under La.Civ. Code art. 1572. However, Clifton’s will did not specifically delegate to Jarrett the allocation authority as executor of his estate. Clifton’s will merely named Jarrett as co-executor with his brother, Donald. Moreover, even if Jarrett could have made the allocation to himself as co-executor of his father’s estate, he failed to do so prior to his death. Thus, this argument is without merit. Section IV of Clifton’s last will and testament violated the provisions of La.Civ.Code art. 1572 and is, therefore, null.

Furthermore, even if Jarrett, as a legatee to the last will and testament of his father is not a “third person” as provided in La.Civ.Code art. 1572, Section TV of the testament is still invalid. The only unambiguous part of the bequest is that Jarrett was to receive an extra portion. Clifton wished to bequeath to Jarrett “an interest.” It is unclear what type of interest he intended to give to Jarrett. Further, the bequest states that the “interest” is in “[Clifton’s] property.” The bequest fails to state what type of property, whether movable or immovable. Last, the “interest” in “property” given to Jarrett is the equivalent of “15 acres.” It is unclear whether the value of whatever “interest” in whatever “property” is to equal the value of “15 acres” or whether Jarrett is to choose fifteen acres of land. It is plausible that Clifton intended that Jarrett receive cash or other property equal to the value of fifteen acres of land which he would choose rather than the actual land.

For the foregoing reasons, I dissent.


author: 1 THIBODEAUX, Chief Judge.

text:
    STATE in the Interest of C.H.
    No. JWK 03-1279.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 28, 2004.

      William E. Tilley, District Attorney, Leesville, LA, Ronald Kenneth Seastrunk, Leesville, LA, for Plaintiff/Respondent, State of Louisiana.
    Derwyn Del Bunton, Juvenile Justice Project of Louisiana, New Orleans, LA, for Defendant/Applicant, C.H.
    Court composed of ULYSSES GENE THIBODEAUX, C.J., SYLVIA R. COOKS, and GLENN B. GREMILLION, Judges.
   1 THIBODEAUX, Chief Judge.

On January 16, 2002, the Juvenile, C.H., was adjudicated delinquent for oral sexual battery in violation of La.R.S. 14:43.3, sexual battery in violation of La.R.S. 14:43.1, and indecent behavior with a juvenile in violation of La.R.S. 14:81. The sixteen-year-old was sentenced to the secure custody of the Louisiana Department of Safety and Corrections until his twenty-first birthday. He is incarcerated at the Swanson Correctional Facility for Youth. His scheduled release date is November 22, 2006. C.H.’s Motion for Modification of Disposition was denied by the trial court on July 21, 2003.

The Juvenile seeks early release' and contends the trial court’s denial of his Motion to Modify Disposition was an abuse of discretion.

FACTS

The Juvenile asserts that his charges resulted from consensual acts of sexual activity that occurred when he was sixteen years old and involved a minor female who was two weeks away from her thirteenth birthday at the time. We note this factual allegation is uncontradicted as neither the State nor the Department of Public Safety and Corrections filed an opposition to his Motion to Modify Disposition, which contained these facts.

MODIFICATION OF DISPOSITION

The Juvenile contends the trial court abused its discretion in denying his Motion to Modify Disposition. Louisiana Children’s Code Article 909 grants the trial court discretion in considering a modification of disposition. It provides:

¡¡¡Except as provided for in Article 897.1, after the entry of any order of disposition, the court retains the power to modify it, including changing the child’s legal custody, suspending all or part of any order of commitment, discharging conditions of probation, or adding any further condition authorized by Article 897(B) or 899(B). It may also terminate an order of disposition at any time while it is still in force.

The trial court retains the power to modify a disposition at any time the disposition is in force. See State v. J.R.S.C., 2000-2108 (La.6/1/01), 788 So.2d 424. The court may modify a disposition without a contradictory hearing if the motion seeks less restrictive conditions. La.Ch.Code art. 910(C). However, if the motion seeks more restrictive conditions, a hearing shall be held. La.Ch.Code art. 910(D). In this case, the trial court had discretion on whether or not a hearing would be held as the Juvenile’s motion sought less restrictive conditions, namely that he be released from DPSC custody and placed with his family. The trial court denied the Motion to Modify without reasons, and without granting a hearing.

The Juvenile's motion is uncontradicted and asserts a change in his circumstances that relate to his continued effective treatment or rehabilitation. He contends that federal and state constitutional and statutory protections for juveniles, based on the goal of rehabilitation and individual treatment, require the trial court to exercise its discretion to review the status of and intervene in the cases of incarcerated juveniles. He contends he presented evidence sufficient to warrant a modification of his disposition. The Juvenile maintains that he has exhausted all of the rehabilitative benefits that his facility has to offer. He argues that his ongoing progress and excellent record have earned him the opportunity to obtain a modification. The Juvenile further asserts that he has demonstrated maturity and commitment to his rehabilitation of the last year and a half of his incarceration.

|sThe Juvenile’s motion outlined his significant changes in his circumstances that warrant release. The Motion to Modify contained the following assertions:

4. Throughout [C.H.J’s stay in secure custody — even after his multiple failed attempts to achieve early release from this Court — [C.HJ’s behavior has been excellent. He has earned a minimum custody level on at least eight (8) consecutive quarterly staffings, and has earned honor dorm status.
5. [C.H.] is routinely selected as a “Principal’s Pick.” Each month, the school principal picks a handful of youth to eat dinner with him. The dinner has the warden and all the high ranks at the institution in attendance.
6. [C.H.J’s other awards and accomplishments at the institution are voluminous. [C.H.J’s accomplishments include:
• Member, Inmate Welfare Committee
• Honor Dorm Resident
• Citizen Stage, YouthCare Program (Highest Honor Possible)
• Member, Honor Roll
These are but a few of the [C.H.J’s accomplishments. He has attained the very highest praise in the institution. He has earned his early release three times over.
7. To this date, [C.H.] maintains an exemplary record. He maintains a minimum custody classification — the highest possible behavioral classification — and [C.H.] has completed all programming at the institution. [C.H.] has exhausted all available rehabilitative resources at SCCY.
8. Rehabilitation is at the core of Louisiana’s delinquency system. Indeed, the Louisiana Children’s Code mandates that youth receive “care as nearly as possible equivalent to that which the parents should have given him.” La. Ch.C. art. 102 (West 2003). Further, “the court should impose the least restrictive disposition authorized” by law. See La. Ch.C. art. 901(B) (West 2003).

(Appendix VII) (Footnotes omitted).

The record before us contains additional information regarding his offenses, his family background, his history with the juvenile justice system, his ^custodial record, and his proposed custody plan upon release. The Juvenile proposes that he be placed with his sister and her husband, a couple whose fitness to supervise has not been challenged. Apparently, the Juvenile has obtained the highest status level, has completed all rehabilitative programs, is an honor roll student, and has the best behavioral classification.

It is clear that the goal of the juvenile justice system is rehabilitation. In J.R.S.C., the Louisiana Supreme Court stated that it is the “public policy of this state that commitment of a juvenile to the care of the [Department of Corrections] is not punitive nor in anyway to be construed as a penal sentence, but as a step in the total treatment process toward rehabilitation of the juvenile ... Id. at 424. Based on the evidence before this court, it appears that the Juvenile has availed himself of every rehabilitative program available, and is entitled to a modification of his disposition.

The Juvenile’s motion was uncontradict-ed. There is no indication in the record before this court to show any opposition at either the trial or appellate level from either the Vernon Parish District Attorney’s Office or the Department of Public Safety and Corrections. Despite the lack of any opposition or contradictory unfavorable evidence, the trial court denied the motion without stating its reasons for so doing. In considering the evidence before it, the trial court apparently failed to give the proper weight to the Juvenile’s position, especially in the absence of any rebuttal evidence to the contrary. Therefore, we find the trial court abused its discretion in denying the Motion to Modify Disposition.

CONCLUSION

The trial court’s ruling is hereby reversed, vacated, and set aside and the Department of Public Safety and Corrections is ordered to release C.H. on parole, with supervision granted to his family in accordance with the after care proposal |Bsubmitted in the Dispositional Memorandum in Support of Modification filed on or about July 17, 2003. Further, the trial court is ordered to hold a hearing within fifteen days of the date of this order to set parole conditions for C.H.

REVERSED AND REMANDED.

      . In the alternative, the Juvenile asserts the trial court erred in denying his motion without conducting a hearing. However, this court need not consider this argument as the result of this opinion renders this claim moot.