author: STEWART, J.

text:
    William B. BURNS, Plaintiff-Appellant v. Frances Gunter HARRIS, Defendant-Appellee.
    No. 41,881-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 23, 2007.

      G. Warren Thornell, Scott C. Sinclair, Shreveport, for Appellant.
    Lemle & Kelleher, by David R. Taggart, Sarah A. Kirkpatrick, Shreveport, for Ap-pellee.
    Before BROWN, WILLIAMS, STEWART, GASKINS and MOORE, JJ.
   STEWART, J.

11William B. Burns appeals a judgment allowing Jill Harris Rabum to complete redemption of property sold at a tax sale in 1993. At issue is whether redemption was timely begun in 1996 by Raburn’s father, John D. Harris, on behalf of his wife, Francis Gunter Harris, who was the owner of the property prior to the tax sale. Finding that redemption was neither timely nor properly initiated and that Ms. Ra-burn should not be allowed to complete redemption at this late date, we reverse the trial court’s judgment allowing redemption, vacate the awards for reimbursements and rents, and render the judgment set forth in the Appendix to this opinion to quiet and confirm Mr. Burns’ tax sale title.

FACTS

The property in dispute is a tract of land located at 2804 Marty Lane in Shreveport, Louisiana. Mrs. Francis Gunter Harris owned the tract as her separate property, but her husband, Mr. John D. Harris, managed the Marty Lane property along with other property the couple owned. Mr. Harris had retired from his job as a fire captain in the mid-1970’s after an illness left him with health problems, including significant hearing loss. Thereafter, Mr. Harris became involved in the real estate business. The pMarty Lane tract was located next to the Harrises’ home and was used as a rental property.

Property taxes on Marty Lane due to the City of Shreveport (the “City”) for 1992 totaled $696.17. When the Harrises failed to pay the amount due, the City sold the property at a tax sale on June 9,1993, for $774.95. The purchaser was Providence Trust. The tax sale deed was dated June 16, 1993, and filed on June 29, 1993. The tax sale deed was eventually conveyed or assigned to Lincoln Trust and then to Mr. William B. Burns. As stipulated by the parties, Mr. Burns is the successor-in-title to the Marty Lane tax sale deed and the proper party in these proceedings. Burns had self-directed retirement accounts with Providence and its successor, Lincoln, through which he acquired and held the Marty Lane property.

On August 9, 1999, Mr. Burns filed suit against Mrs. Harris to quiet his tax title and obtain possession of Marty Lane. He obtained a default judgment on October 18,1999. In response to the order to seize the property, the sheriff of Caddo Parish filed a motion to intervene seeking a new trial partly on the grounds that Burns was not the purchaser named on the tax deed. Thereafter, on April 18, 2000, Mrs. Harris filed a petition to annul the default judgment and an answer opposing Mr. Burns’ suit to quiet his tax title. The trial court granted a new trial and recalled the writ of seizure previously ordered with Burns’ default judgment.

Because Mrs. Harris’s mental competency was impaired by a brain tumor and then a diagnosis of Alzheimer’s disease, her daughter, Jill Harris Raburn, was substituted as plaintiff in the suit to annul the tax sale upon her |sappointment as Mrs. Harris’s provisional curatrix. Following Mrs. Harris’s death, Raburn was substituted as plaintiff in her capacity as adminis-tratrix. Mr. Harris also died while this litigation was underway.

On November 18, 2002, Ms. Raburn amended the petition to annul the tax sale. She alleged that the June 1993 tax sale was null, because no taxes were owed at the time of the sale. Due to erroneous assessments over the years, Mr. Harris had overpaid the taxes, and this had resulted in a credit greater than the amount due for the 1992 property taxes. Raburn also alleged that her father, Mr. Harris, had timely redeemed Marty Lane by payment of a cashier’s check in the amount of $3,135.65 to the City of Shreveport on March 28, 1996, but that the City had failed to issue the redemption deed. Ra-burn also sought damages for loss of rent from the property.

In answer, Mr. Burns denied that Mr. Harris had redeemed the property as alleged by Raburn. Moreover, he filed a reconventional demand seeking all rents attributable to the Marty Lane property from the time of the 1993 filing date of the tax sale deed. Burns again filed a motion seeking a writ of possession, and this was granted on April 14, 2003, subject to the parties’ reservation of rights.

The parties agreed to split the trial into two phases. The first phase addressed the nullity and redemption issues. A partial judgment rendered January 4, 2005, denied Raburn’s petition to annul the tax sale, but concluded that redemption had been timely initiated by Mr. Harris. The 14trial court found that Mr. Harris had tried to redeem the property to the best of his ability considering his physical ailments.

The second phase of the trial was to determine the redemption amounts and rents due Mr. Burns. In lieu of trial, the parties submitted a joint stipulation with exhibits and briefs. The trial court signed a written opinion on February 28, 2006, awarding Burns reimbursement of $72,526.50 for parish and city property taxes paid by him plus penalties and interests, $13,208.54 for repairs and maintenance, and rent from May 8, 2003, the date Burns’ took possession of the property, through April 30, 2005, subject to a credit for those amounts he retained. A final judgment prepared by counsel for Raburn and objected to by Burns’ counsel was signed by the trial court on June 13, 2006.

Burns filed a suspensive appeal seeking review of the trial court’s judgment on the redemption issue and challenging various aspects of the amounts awarded by the trial court. In her brief as appellee, Ra-burn asserted that the trial court erred in not annulling the tax sale and in awarding rents to Burns. Having neither appealed nor answered the appeal, Raburn may not seek reversal or modification of the trial court’s judgment. La. C.C.P. art. 2133. Accordingly, we will not entertain the issues raised by Raburn in her brief.

DISCUSSION

La. R.S. 47:2221 states that property sold at a tax sale is redeemable in accordance with La. Const. Art. 7, § 25(B), which provides as follows:

(B) Redemption. (1) The property sold shall be redeemable for three years after the date of recordation of the tax sale, by paying |Rthe price given, including costs, five percent penalty thereon, and interest at the rate of one percent per month until redemption.

Redemption requirements are further set forth in La. R.S. 47:2222. The person redeeming the property is required to pay all taxes assessed subsequent to the tax sale with interest of one percent per month until redeemed. La. R.S. 47:2222(A). The payment for taxes is to be made to either the purchaser or the tax collector who made the sale or to his successor in office. La. R.S. 47:2222(C). The tax sale purchaser is also entitled to receive from the owner the value of any improvements made on the real estate. La. R.S. 47:2222(D). Moreover, the tax sale purchaser is entitled to receive from the owner the cost of repairs, rehabilitation, maintenance, removal or demolition as provided in La. R.S. 47:2222.1.

Redemption does not require a showing of an irregularity or defect in the tax or sale process. Harris v. Estate of Fuller, 532 So.2d 1367 (La.1988). It merely requires payment of back taxes due as well as other amounts, as set forth above, that may be proven due. Redemption is subject to a three-year peremptive period that runs from the date of recordation of the tax sale. Id.

Louisiana law favors redemption. Fleckinger v. Smith, 319 So.2d 881 (La. App. 4th Cir.1975), writ denied, 323 So.2d 131 (La.1975); Becnel v. Woodland, 93-446 (La.App. 5th Cir.11/23/93), 628 So.2d 89, writ denied, 93-3108 (La.2/11/94), 634 So.2d 374. Jurisprudence recognizes that equitable considerations may weigh in favor of a tax debtor who attempts to redeem his property prior to expiration of the three-year period. Despite the three-year peremptive period applicable to re-demptions and the | (¡seemingly clear requirements for effecting redemption, equitable considerations have led some courts to conclude that redemption must be initiated within the three year period, but it need not be completed within that time. S.A. Mortgage Service Co. v. Lemoine, 2001-250 (La.App. 5th Cir.10/17/01), 800 So.2d 1015, writ denied, 2001-3083 (La.2/1/02), 807 So.2d 851; Becnel, supra. The following cases demonstrate this principle.

In Fleckinger, supra, certain property had been adjudicated to the state twice for nonpayment of taxes for 1936 and 1938. The defendants, heirs and assigns of the tax debtor, attempted to redeem the property adjudicated for nonpayment of the 1938 taxes and were given a redemption certificate. Three years later, the plaintiffs purchased the property at a tax sale for the still unpaid 1936 taxes. Both parties claimed valid title to the property. The court found that the redemption by the tax debtors’ assigns gave them a valid title notwithstanding the fact that the 1936 taxes had not been paid when the redemption certificate was issued. The mistake was on the part of the state, which was required by law to issue a redemption certificate only if all outstanding taxes were paid. The court reasoned it would be unjust to penalize the redeemers because a state official failed to perform his duty or to reward the tax sale purchasers who took advantage of the state’s mistake.

In Harris v. Guardian Funds, Inc., 425 So.2d 1322 (La.App. 4th Cir.1983), the court held that a suit to redeem property filed by the plaintiff within the three-year peremptive period was sufficient to make the property “redeemable.” Based on plaintiffs counsel’s assertion that the parties had |7been in negotiations for several months before the suit was filed, the court recognized that a tax purchaser might use dilatory tactics to defend his ownership and prevent a tax debtor from redeeming the property. Also, the court found that La. Const. Art. 7, § 25(B) did not mandate the consummation of redemption within the three year period but provided only that the property “shall be redeemable for three years....” Id. at 1325.

In Becnel, supra, the defendant, Woodland, learned just prior to the end of the three-year period that his home had been sold for non-payment of property taxes in August 1988. On August 29,1991, he went to redeem his property. When he requested the amount due, a town employee told him that the exact figure was not available but that she would get the amount to him as soon as she could. The town still did not provide the amount due the next day. The redemption amount was finally provided by written response on September 6, 1991, after the three-year period had expired. Woodland paid the amount and obtained a tax redemption deed from the town. Thereafter, Becnel, who had purchased the property, filed suit to quiet his tax title. The trial court ruled in Becnel’s favor upon finding the redemption deed issued after the three-year period to be null and void. On appeal, the court held that Woodland’s attempt to redeem the property in person prior to expiration of the three-year period was sufficient to initiate the redemption process. The basis of the holding was Woodland’s timely initiation of the redemption process and his expeditious completion upon receiving the amount due. Though untimely, Woodland’s swift completion of redemption upon receipt of the amount due did not impair the long-standing public |spolicy of protecting the certainty of land titles. Equity and fairness weighed in Woodland’s favor, because he had no control over the actions of the town’s personnel in failing to provide the amount due prior to expiration of the three-year period.

In S.A. Mortgage Service Co. v. Lemoine, supra, the plaintiff-mortgagee purchased the property at a tax sale from the City of Kenner in 1995. In 1997, the property owner, Ms. Rome, went to redeem the property and was told to pay the amount of $89.41, which she paid. However, the amount given to Rome by the City of Kenner was not sufficient to redeem the property. In the lawsuit, the plaintiffs demand to confirm its tax title was denied, and Rome was allowed to complete redemption. The appellate court agreed with the trial court’s conclusion that the City’s having provided incorrect information would not bar Rome from completing the redemption.

In Mississippi Land Co. v. S & A Properties II, Inc., 2001-1623 (La.App. 3d Cir.5/8/02), 817 So.2d 1200, S & A failed to pay city and parish taxes for 1996 on two tracts of land which were then sold at a tax sale. In 1998, a representative of S & A obtained an amount from the parish tax collector’s office to redeem the tracts. He then delivered to the parish tax collector two cashier’s checks made out to Mississippi Land, the tax sale purchaser. The total of the two checks equaled the amount reported as due by the parish tax collector, namely $112,992.15, and identified the tracts by assessment number. When Mississippi Land filed a petition to quiet its tax title, S & A responded with a no right of action exception on the grounds that it had redeemed the property. The trial court granted the exception and |9was affirmed on appeal. The appellate court found that S & A had initiated the redemption process within the three-year period by paying an amount sufficient to cover the total city and parish taxes due for 1996, the year for which nonpayment resulted in the tax sale. However, the payment had not been sufficient to also cover the total taxes for 1997, which had apparently also been paid by Mississippi Land. Although Mississippi Land accepted the payment, it did not inform S & A of the deficiency. Instead, Mississippi Land claimed that the payment was for the 1996 and 1997 parish taxes. Even though S & A had sought the amount due 1⅝1 the parish tax collector’s office, which presumably would include only the parish ftaxes, and paid that amount, the appellateijomt found that Mississippi Land should have attributed the payment to the most onerous debt-the total parish and city taxes for 1996. Relying on equitable considerations, the appellate court found S & A intended to pay its entire tax debt, believed, its tender was adequate, and made no imputation of its payment. Thus, the payment should have been imputed by Mississippi Land to the 1996 debt, with any remainder going toward reimbursement for taxes paid by it after the tax sale.

As illustrated by the cases discussed above, equitable considerations favor the tax sale debtor when some mistake or action by the tax collector or tax sale purchaser prevents the tax sale debtor from redeeming his property within the three-year period. Also pertinent to this matter is the important and long-standing public policy of protecting the certainty and marketability of land titles. This policy underlies the three-year peremptive period |inapplicable to redemptions. See Harris v. Estate of Fuller, supra; Fleckinger, supra.

Burns argues that the trial court erred in finding that redemption was timely initiated. He asserts that redemption must be accomplished within the three-year per-emptive period and that allowing redemption to be completed thirteen years after recordation of the tax sale deed does not serve the public policy favoring certainty of titles to immovable property. Burns contends that Harris v. Guardian Funds, Inc., supra, Becnel, supra, S.A. Mortgage, supra, and Mississippi Land Co., supra, were incorrectly decided, because the holdings ignore the peremptive nature of the three-year period. He also contends that these cases are distinguishable from the present situation wherein Mr. Harris made all the missteps.

In opposition, Raburn contends that equity favors redemption. She contends that the property had been over-assessed for years prior to the tax sale, that her father tried his best to have the problem corrected, and that he was due a credit over the amount of the taxes for 1992, when the property was sold by the City of Shreveport for nonpayment. Although Raburn raises these points as equitable considerations supporting the trial court’s judgment, they are more pertinent to her claim to nullify the tax sale, which is not at issue on appeal, and they bear no relation to what transpired when Mr. Harris allegedly attempted to redeem Marty Lane in March 1996. Raburn further contends that even though her father dealt with the Parish of Caddo instead of the City of Shreveport, timely payment was still received by the City, which then failed to apply it for redemption. Raburn asserts the In City’s clerical error, as well as the failures of the taxing authorities regarding the assessment problem, stymied her father’s efforts over the years to correct the assessment and then redeem the property.

The evidence includes correspondence by Mr. Harris to Lillie Skinner, a Caddo Parish employee, regarding various property issues. The record shows that on January 25, 1996, Mr. Harris wrote to her about four properties. Referring to Marty Lane and another property, he wrote that he no longer received tax notices and asked what to do. Later, he wrote to her saying that he had sent two cashier’s checks on March 28, 1996, to redeem two different properties. One of the two properties referred to was Marty Lane. He also wrote that he was under the impression that Mrs. Skinner collected the City’s taxes and noted that his cashier’s check to the Parish was $2,816.55 above what he believed was owed on the two properties. There is no evidence showing what became of the excess payment to the Parish. The evidence includes a copy of the cashier’s check made out to the City of Shreveport Revenue Division for the amount of $3,135.63. The remitter is identified as John Harris. Neither check had information to identify the purpose of the payments or to indicate which properties were the subject of the payments.

On July 23, 1996, Mr. Harris wrote to Mrs. Skinner again about a “breakdown in communications” regarding the cashier’s checks he sent in March and the paid receipts he received from her. He informed her that his tenants had received a letter, apparently from Mr. Burns, about an increase in the rent. Letters written by Mr. Harris in 1997 and 1998, to Mr. Burns and|iathen to Mr. Warren, the Cad-do Parish Clerk of Court, indicate that Mr. Harris believed he had redeemed Marty Lane in 1996. He noted in the letter to Mr. Warren that Caddo Parish had sent receipts and a redemption deed for the “Risinger property” but not for Marty Lane. He further noted that Mrs. Skinner told him that the City was the “holdup.” He claimed that he wrote the City’s revenue department but received no reply. There is no evidence in the record of correspondence by Mr. Harris with the City regarding redemption of Marty Lane.

Lillie Skinner had been employed by the Caddo Parish Sheriffs Department in tax collections until she retired in 1997. She testified that Mr. Harris often wrote to her for help. She recalled that he was having problems with several properties and was having difficulties remembering things. Though not part of her job, she looked up properties for him during her lunch hour to see if he had redeemed them and made copies of information for him. However, she did not recall looking up a redemption deed on Marty Lane. Skinner did not specifically recall the two cashier’s checks sent by Mr. Harris on March 28, 1996. She testified that she did not work on redemptions and never held herself out to Mr. Harris as a collector of the City’s taxes. However, she explained that if the Parish received a check for the City, the check, along with a copy of any letter or other information sent by the payor with it, would be forwarded to the City. Though Skinner testified that Mr. Harris usually included a letter stating which property to redeem when he sent a payment, she did not testify that a letter was included with the cashier’s checks of March 28, 1996, or that any letter was forwarded [ 13to the City with the cashier’s check. There is no evidence of any letter sent with the cashier’s checks to explain how to apply the payments. We also note that if Mrs. Skinner did not work on redemptions as she testified, then she would not be likely to have personal knowledge of whether Mr. Harris sent letters with redemption payments.

Cherry Lugo, a revenue supervisor in the City of Shreveport’s tax department, testified that some payments to the City are sent to the Parish in error and then forwarded by the Parish to the City. If no instruction as to how to apply the payment is sent with the check, then the City looks in the tax records to figure out where to apply the money. If this cannot be determined, then the payor is called or the check returned. She explained that the City looks up properties in the payor’s name; properties that have been sold for nonpayment of taxes would no longer be in the payor’s name. Then, the payment is applied to current taxes due, rather than to redemptions for which the amount due has to be calculated to include the interest and costs. Lugo testified that Mr. Harris’s cashier’s check payable to the City was disbursed for tax payments on different properties he owned, so whoever processed the payment was apparently satisfied that the amount balanced with taxes owed by him. Burns’ exhibit number 23 shows that Mr. Harris’s payment of $3,135.63 was disbursed among five different properties for 1994 and 1995 city taxes.

This testimony and the evidence of record do not support a finding that Mr. Harris timely initiated redemption of Marty Lane, his wife’s separate property, on March 28, 1996, by mailing two cashier’s checks to the |14tax collector for Caddo Parish. Mr. Harris did not send the payment to the correct taxing authority or make clear that the payment or a part thereof was to redeem Marty Lane through the City. Even though Marty Lane had been sold by the City for nonpayment of taxes, Mr. Harris did not contact the City about redemption. Instead, the evidence shows he sought to resolve his complaints through the Parish’s assessor’s office and sheriffs tax collection division. Neither of these Parish offices were responsible for collecting the City’s taxes or processing redemptions of property sold by the City at tax sales. The evidence does not show that Mr. Harris ever contacted the City about redeeming Marty Lane or requested from it a calculation of the cost of redemption. There is no showing that the cashier’s check made out to the City was in an amount sufficient to redeem the property. Nothing on the check indicates that payment was on behalf of Mrs. Harris to redeem Marty Lane. Also, there is no evidence that the City or Parish received a letter with the cashier’s checks explaining that payment was intended to redeem Marty Lane.

The equitable considerations which favored redemption in other cases are not present here. Mr. Harris did not request the redemption amount and rely on an incorrect amount given by the correct taxing authority as in S.A. Mortgage, supra. He was not stymied in his efforts to timely redeem the property by the taxing authority’s delays in providing him the redemption figure as in Becnel, supra. He did not face dilatory tactics by Burns, and he did not file a suit to redeem1 the property within the three year peremptive period as in Harris v. Guardian Funds, supra. No payment was made to the | ,stax sale purchaser as in Mississippi Land, supra. Also, Mr. Harris’s cashier’s checks did not identify the tracts to which payment should be applied as in Mississippi Land, and there was no obligation by the City to impute a payment from Mr. Harris to an obligation owed by his wife on her separate property. Finally, there was no mistake on the part of the City in processing the alleged redemption payment as in Fleckinger, supra.

In this instance, unlike the cases above wherein the taxing authority knew it was dealing with a redemption, there is no showing that the City had any knowledge that Mr. Harris’s payment was intended to redeem his wife’s separate property. Rather, the City received a check from Mr. Harris and applied the payment to taxes for 1994 and 1995 on properties in his name. While a more prudent policy may have been to contact the payor to find out exactly how to apply the payment, the City’s failure to do so has not been shown to have been improper and does not support a finding in favor of redemption.

We have compassion for the difficulties experienced by Mr. Harris due to his advanced age and health problems, which he acknowledged in his correspondence. Knowing he had difficulties, he could have sought help with managing his affairs when his health impaired his ability to do so. Instead, he failed to exercise due diligence in his efforts to attempt redemption of Marty Lane by relying on the kindness of Ms. Skinner, a Parish employee, to try to resolve the tax sale and redemption issues he and his wife had with the City. Mr. Harris had years of experience in the real estate business, as reflected in his correspondence and records in evidence, |1fiand was not an unsophisticated property owner. The missteps in this matter were primarily his and are not attributable to the City, whose only action was to receive a payment from Mr. Harris that was forwarded by the Parish and to apply it to taxes owed by him for properties in his name.

We find that the facts of this matter are not comparable to the equitable considerations in other cases which have favored redemption. Over ten years have passed with no effort to complete the redemption. Allowing redemption at this late date, particularly when the delay is not attributable to any error or tactic by the tax sale purchaser or the City’s taxing authority, would violate the strong policies favoring the protection of land titles and likely subject the tax sale scheme and tax sale titles to greater uncertainty and increased litigation. For these reasons, we find that redemption was not timely initiated and shall not be completed eleven years later.

CONCLUSION

Because we hold that redemption was not timely initiated by Mr. Harris, we reverse the trial court’s judgment allowing Ms. Raburn to complete redemption, and we vacate those parts of the judgment awarding reimbursements and rents. As provided in the Appendix to this opinion, judgment is granted in favor of Mr. Burns quieting and confirming his tax title to Marty Lane, and granting relief as sought in his petition. Costs of this appeal are assessed to the appellee.

REVERSED, VACATED, AND RENDERED.

BROWN, C.J., dissents with written reasons.

GASKINS, J., dissents.

APPENDIX

|17SECOND circuit

COURT OF APPEAL

WILLIAM B. BURNS

VERSUS

JILL HARRIS RABURN, ADMINISTRATE! FOR THE SUCCESSION OF FRANCES GUNTER HARRIS

NO. 41,881-CA

JUDGMENT

In accordance with the ruling on appeal in No. 41,881-CA of the Louisiana Second Circuit Court of Appeal from the final judgment rendered by the First Judicial District Court, Caddo Parish, Louisiana, in Docket No. 442,650 of the above captioned matter, judgment is rendered in favor of William B. Burns granting his petition to quiet tax title to the property identified as 2804 Marty Lane in Shreveport, Louisiana bearing Geographical Number 181535005000100, and more fully described as follows:

Lots “A” and “B” of a Resubdivision of Lot 13, H.O. Cloud Subdivision, a subdivision of the City of Shreveport, Caddo Parish, Louisiana, as per that plat recorded in Book 600 Page 17 of the Conveyance Records of Caddo Parish, Louisiana, together with all buildings and improvements thereon.

Judgment quieting and confirming William B. Burns’ tax title to the above described property is hereby granted. The Caddo Parish Clerk of Court is ordered to cancel and erase all judicial and conventional liens, if any, pertaining to the property. It is also ordered that William B. Burns be | ^placed or continued in possession of the above described property as owner and with no reservation of rights as to the opposing party.

Judgment rendered this 23rd day of May 2007.

BROWN, Chief Judge, dissenting,

bln June 1993, property owned by Francis Harris at 2804 Marty Lane in Shreveport was sold by the City in a tax sale to Providence Trust (Mr. Burns). This sale took place for the alleged failure to pay the 1992 property tax assessment of $696. In fact, in 1992 the City owed Francis Harris a credit on the Marty Lane property that exceeded the taxes due that year as a result of a ruling by the Tax Commission. There is no indication in this record that this debt has been paid. This credit or debt represents money delivered to the City by Mrs. Harris to pay the taxes on the property at 2804 Marty Lane. The mistake was on the part of the City. Further, this credit represents payment which the City should have attributed to the most onerous debt. Mississippi Land Co., supra. As such, it would serve even as a redemption of the property.

In addition, within the three-year redemption period, Mr. Harris, an elderly gentleman who was caring for his wife’s property because of her incapacity, contacted the Caddo Parish Sheriff/Tax Collector to redeem the property at 2804 Marty Lane. This was explained in correspondence from Mr. Harris to Deputy Skinner. As a result, Mr. Harris paid the past due taxes, penalties, and interest on the Marty Lane property in the form of two cashier’s checks one payable to the parish and one to the City. The check payable to the City was sent by the parish and received by the City. Deputy Skinner testified that if the Parish received a check for the City, the check, along with a copy of any letter or other information sent by the payor, would be forwarded to the City. Further, Deputy Skinner testified that [¿whenever Mr. Harris sent a payment he would include a letter identifying which property was to be redeemed. As stated, Mr. Harris did explain in his letters to the parish tax collector that the money was to redeem the Marty Lane property. The City agreed that the cashier’s check from Mr. Harris was received but arbitrarily applied to taxes on other property owned by John Harris.

The trial court’s findings are reasonable and supported by the record. The equitable considerations and jurisprudence favor redemption. It was the City’s mistake and funds were always available to pay the taxes or redeem the property. In addition, within the three-year period, Mr. Harris paid adequate money to the City along with correspondence identifying the property to be redeemed. See Becnel, supra; Harris, supra; Mississippi Land Co., supra; S.A. Mortgage, supra.

I respectfully dissent from the majority.

      . The Marty Lane property is identified in evidentiary records by Geographical No. 181535005000100 and is described as:
      Lot A & Lot B of Plat 13, Resub. of Lot 13, 14, 15, & 16, H.O. Cloud Sub.
      It is more fully described as:
      Lots "A” and "B" of a Resubdivision of Lot 13, H.O. Cloud Subdivision, a subdivision of the City of Shreveport, Caddo Parish, Louisiana, as per that plat recorded in Book 600 Page 17 of the conveyance records of Caddo Parish, Louisiana, together with all buildings and improvements thereon.


source: Caselaw Access Project

author: GREMILLION, Judge.

license: Public Domain

text:
    Robert Lee LAURENCE, III v.Sarah Ruth (Self) LAURENCE.
    No. 2007-11.
    Court of Appeal of Louisiana, Third Circuit.
    May 30, 2007.

      Scott Westerchil, Leesville, LA, for Plaintiff/Appellee: Robert Lee Laurence, III.
    David C. Hesser, Alexandria, LA, for Defendant/Appellant: Sarah Ruth (Self) Laurence.
    Court composed of JOHN D. SAUNDERS, JIMMIE C. PETERS, and GLENN B. GREMILLION, Judges.
   GREMILLION, Judge.

_JjThe defendant-appellant, Sarah Ruth Laurence, appeals the trial court’s judgment modifying domiciliary status and ordering shared custody between her and her ex-husband, the plaintiff-appellee, Robert Lee Laurence. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Robert filed for divorce in March 2005, and a default judgment against Sarah was granted in April 2005, with joint custody of Karlee and Aron Laurence being awarded and both Robert and Sarah being named co-domiciliary parents. In July 2005, Sarah filed a petition for modification of custody requesting that she be named the primary custodial parent. Robert filed an answer and reconventional demand urging that he should be designated the primary custodial parent. The trial court ordered both parties and the children to undergo psychological evaluations. Following a trial in July 2006, the trial court maintained the joint custody award but named Robert as the primary custodial parent. The parties were to share custody on an alternating one week basis. Thereafter, Sarah fired her attorney and hired another who filed a motion for new trial, which was denied as premature, and she filed an alternative motion to reconsider, which was denied on the merits. Sarah now appeals.

ISSUES

Sarah assigns as error the trial court’s:

1. Refusal to grant the motion for new trial when it admitted that it applied the wrong legal standard for custody to a non-parent;
1⅞2. Refusal to grant the motion for new trial for custody of the sibling child;
3. Application of the wrong legal standard at trial for custody to a non-parent;
4. Application of the wrong legal standard at the trial for custody of the sibling; and
5. The grant of domiciliary status to Robert contrary to the weight of evidence and expert opinion.

LAW AND DISCUSSION

A trial court’s determination of child custody is entitled to great weight on appeal and will not be disturbed absent a clear abuse of discretion. AEB v. JBE, 99-2668 (La.11/30/99), 752 So.2d 756. When the trial court has made a considered decree of permanent custody, the petitioning party bears the difficult burden of proving that the continuation of the present custody situation is so deleterious to the child that it justifies a modification of the custody arrangement, or of proving by clear and convincing evidence that any harm likely to be caused by the change of environment is substantially outweighed by the advantages to the child. Bergeron v. Bergeron, 492 So.2d 1193 (La.1986). A considered decree is one in which evidence as to parental fitness has been received by the trial court. Oliver v. Oliver, 95-1026 (La.App. 3 Cir. 3/27/96), 671 So.2d 1081.

When a considered decree has not been rendered, but the parties have stipulated to an agreement without the court considering parental fitness, a lesser burden applies. In order to modify a custody arrangement, the movant must prove that 1) a material change in circumstances has occurred, and 2) that the new custody arrangement would be in the best interest of the child. Id.

| sIn this case, the original custody arrangement was by default as Sarah did not appear in court, and a subsequent modification was stipulated to by the parties. Thus, the trial court did not hear any evidence as to parental fitness and the custody agreement is, therefore, not a considered decree. Thus, the latter burden of proof applies.

In Sarah’s petition for modification of custody and child support she alleged that since the prior judgment the circumstances that had changed to warrant the modification were that: the current visitation schedule was unworkable as it is difficult on the children and is unstable; her work schedule changed and she was only working three nights per week as a nurse assistant; during the marriage she was the primary care taker of the children and only began working nights after the parties separated; Robert inserts the children into the disputes between them; Robert has violated the prior order on at least two occasions by refusing to surrender the children to her for visitation periods; Robert frequently leaves the children with his sister at night while he goes out; Robert threatens her that she will not see the children again; Robert told the children recently that he was going to kill her; and, Robert tried to sideswipe her vehicle with the children inside.

At trial, Sarah testified that she has remarried and that she and her new husband, Roland, purchased a home in Rose-pine. She stated that her two children attend school in Hornbeck, which is now a forty-five minute drive from her home. Sarah stated that she would place the children in school in Rosepine. She also said that she did not have any problem with the children having frequent visitation with Robert.

|4Sarah testified that Robert refers to her as a “slut”, “whore”, and a “bitch” in front of the children and that he has anger management problems. She stated that he has tried to run her off the road on more than one occasion. She testified that Robert has told the children that he was going to kill her. She further testified that she has been the children’s primary care giver throughout their lives.

Sarah further testified that since she and Robert separated she has had five jobs, two of which she was fired from. She stated that she missed days from work because she was arrested for writing hot checks. Additionally, she testified that since the separation she has lived in three different locations and lied to Robert as to the address of one of her residences. She further testified that at one point, she did have a married roommate and her fourteen year old sister whose boyfriend would sleep over, but not on the nights when she had her children.

Sarah further testified that she did not tell her children that she had remarried until three weeks after the ceremony. She stated that her new husband owns three homes in Hayes, which is ninety miles from Leesville, where the children currently attend school. She stated that her husband rents out two of the homes. She said that they purchased a $1500 mobile home closer to Leesville so that she could reside closer to her family. However, Sarah denied that if she were to obtain primary custody of the children she would move back to Hayes with her husband. Sarah then described the multiple residences she has had since the divorce and the various people she has lived with in those residences. Sarah also admitted that two months prior to the trial she had been in jail for failing to pay a fine associated with a DWI she received in 2004. She admitted that Robert’s home life has been much more stable |Bthan her own given that he resides in the home the children were raised in, has had the same job for multiple years, and the children can attend the same school. She admitted that they have both grown up in Hornbeck, but stated that she would like to move them to Rose-pine. She also testified that she has no land line, but does have a cell phone.

Richard Self, Sarah’s brother, testified that he accompanied his sister to six or seven of the custody exchanges. He testified that one time Sarah was having problems with her car and asked him to pick up her kids. He testified that Robert would not allow him to pick up the kids. He stated that Robert is rude to Sarah and calls her names such as “bitch” and “slut” in front of the children. He testified that he works away from home for a month at a time, and he stays at Sarah’s house when he comes home for two or three days. He stated that he stays at Sarah’s house when he comes in from work. On cross-examination, Self testified that Roland and Sarah do not live together, but then explained that he was not home often enough to justify that fact.

Rebecca Martin, Sarah’s sister, testified that she is the primary babysitter of Kar-lee and Aron. She testified that the children are well behaved and get along with their mother. She said that the children have stated that Robert’s home is not the cleanest and that their clothes are not always clean. She further testified that she did not feel that the 50/50 custody arrangement was working very well because Sarah has a difficult time getting the children back and forth to school because of the considerable distance from her home to their school in Hornbeck. She believed it would be best for the children if they resided with their mother during the week.

|fiJamie Aden, Sarah’s best friend of twelve years, testified that Roland is very good with the children and has taken them for family outings to the zoo, fishing, and to the lake. She testified that she has accompanied Sarah to the custody exchanges. She described Robert as having a “little attitude.” She stated that Robert has called Sarah a “slut” and a “bitch.” She further testified that she heard Robert threaten to kill Sarah over the speakerphone. Aden further testified that, although Sarah and Roland have been married for two months, they have never lived together. She stated that Roland lives in Hayes and “has a job up there and [Sarah] lives here with her kids.” She further testified that Sarah had planned to move to Hayes, but changed her mind after the psychiatrist said she would lose her kids.

Robert testified that he has lived at his current address for eight years and has worked at his present job for three-and-a-half years as a mechanic. He stated that he works from 8:00 a.m. to 5:30 p.m. daily and is off on the weekends. He stated that he does not work any overtime. He testified that the custody arrangement was working well until Sarah moved because she had to drive so far to get the children to school. He stated that Sarah requested that she move the children to a different school in the middle of the year so that they would be closer to her new residence, but that he refused.

Robert testified that since the divorce, Sarah has been leading a “happy-go-lucky” lifestyle involving going out and having fun and many boyfriends. He stated that Sarah admitted to having multiple boyfriends and said that he has seen her with them. He testified that he does not have a girlfriend nor has he had any women sleep at his house.

17Robert then testified regarding several incidents. He stated that he has never told the children that he was going to kill Sarah. He further testified regarding the incident in front of Radio Shack where Sarah’s brother came to pick up the children. He stated that he refused to allow them to go with him because he had been drinking and because Sarah had told him during the marriage that her brother had molested her when they were children. He stated that he did have a gun in his truck and that once the police came they told everyone to go home.

Finally, Robert testified that he was happy with the 50/50 arrangement because the kids want to be with both parents, but that he would rather primary custody be placed in him if the court had to choose because he feared that Sarah will leave the parish. He testified that Sarah told him in a text message that she was moving to Hayes. Robert did admit to calling Sarah a “bitch” and a “slut” in front of the children. He further admitted to letting his anger get the best of him. He also realized that he sometimes put the children in the middle of the situation when he questioned them about whether their mother had been drinking or having men sleep over.

Additionally, the reports of psychologist Dr. John C. Simoneaux were admitted into evidence.

At the conclusion of the trial, the trial court gave oral reasons for its custody award amounting to fifteen typed legal pages. Clearly, the trial court elaborated as to its reasons in awarding custody, part of which is reprinted here:

Now, Dr. Simoneaux basically said a “50/50” split is appropriate and I’m inclined to agree.... So, I’m going to maintain shared custody on the following arrangement. One week and one week, the exchange of the children will occur on Sunday evening at 5:00 p.m.... That gives lathe children the stability of being in one household for the entire school week instead of the middle of the week exchanged.... I believe that co-domiciliary parents — parenting at this point is unworkable. [I]f one parent is designated as a primary domiciliary parent, then the school should be most convenient to that parent. Now [Dr. Simoneaux] says in one breath, if one parent is designated as the primary custodial parent, then that school most convenient should be the one that the children go to. Then, he says, but, you know, strong consideration should be given to Sarah. The children have lived in Hornbeck. The children have gone to school in Horn-beck. I see no evidence that tells me that it would be either beneficial or necessary for the children to change schools simply for the sake of the convenience of the mother- I don’t want the children to have to be shifted around and change schools simply because mom’s a little put out of-as far as inconvenience is concerned, so, bottom line is, dad is being named as the domiciliary parent, and the children, therefore, will go to Hornbeck school this year.

Having reviewed the evidence and testimony, we cannot say that the trial court abused its discretion in naming Robert as the domiciliary parent. It was clear that both parents had room for improvement in their communication and parenting skills. However, the trial court was of the opinion that the best interests of the children were served by maintaining their home base and school and by ensuring continuity in the Hornbeck school system. Moreover, the week-to-week arrangement allows for a more orderly school week in which each parent can be assured that he/she is receiving the necessary school papers for the week. Although Dr. Simoneaux’s report indicated a preference for Sarah, the trial court found the report contradictory in some respects and was free to arrive at its own conclusions based on the testimony and evidence before it. We find no abuse of discretion in the trial court’s findings. Accordingly, this assignment of error is without merit.

Motion for New Trial

The Louisiana Code of Civil Procedure provides three instances under which a motion for new trial will be granted in Article 1972:

|sl- When the verdict or judgment appears clearly contrary to the law and the evidence.
2. When the party has discovered, since the trial, evidence important to the cause, which he could not, with due diligence, have obtained before or during the trial.
3. When the jury was bribed or has behaved improperly so that impartial justice has not been done.

Louisiana Code of Civil Procedure Article 1973 further provides that a motion for new trial may also be granted “if there is good ground therefore, except as otherwise provided by law.” In both instances, the trial court is accorded vast discretion in deciding whether to grant the motion; its decision whether to do so is reviewed pursuant to the abuse of discretion standard of review. Davis v. Coregis Ins. Co., 00-475 (La.App. 3 Cir. 12/27/00), 789 So.2d 7, writ denied, 01-0292 (La.3/30/01), 788 So.2d 1192.

The trial court issued a written ruling denying Sarah’s motion for a new trial:

[Sarah] has raised, for the first time, the undisputed fact that [Robert] is not the biological or legal father of one of the children, Karlee. That is not disputed by [Robert], except that in a post-hearing memorandum, [Robert’s] counsel attached a copy of an unsigned birth certificate naming him as the father. That document is not in evidence and has not been considered by the Court.
In this motion for a new trial, the Court is required to consider whether the change in the status of the child as it relates to [Robert] resulted in a miscarriage of justice. In making such an analysis the Court may consider all of the evidence it heard at trial. Of course, the burden of the non-parent is to prove that a risk of substantial harm would come to the child if placed with the parent.
The Court has considered the evidence and finds that it would create a risk of substantial harm to place the child with the mother, since to do so would result in the separation of these two half-siblings from each other.
|inThe evidence clearly established that practically since the day of birth [Robert] has been the child’s father in all ways except biologically. Both children were reared equally as children of these two parties. To separate the two would cause severe harm to one, if not both of them.
Having already awarded domiciliary custody of Aron to [Robert], the Court finds that the best interests of Karlee would be served, for the reasons already stated, by keeping that child with her sibling.

At the hearing on the motion for new trial, the trial court acknowledged that, had it known that one of the children was not the biological child of Robert, a different standard — the substantial harm standard found in La.Civ.Code art. 133 — would have applied to change domiciliary status from the biological mother to a non-parent. However, the trial court noted, and we agree, that the mother’s urging Robert’s non-biological status at such a late stage of the proceedings was merely because she did not like the result of the trial. Sarah had every opportunity to raise the issue of Robert’s non-biological status as to Karlee. These proceedings have been ongoing for several years and the issue has never been raised.

Having reviewed the trial court’s reasoning subsequent to the motion for new trial, we find no abuse of discretion. The motion for new trial was properly denied on the basis that none of the Article 1972 requirements were met. The fact of Robert’s non-biological status was certainly not newly discovered evidence. Accordingly, this assignment of error is without merit.

CONCLUSION

The judgment of the trial court naming the plaintiff-appellee, Robert Lee Laurence, the primary custodial parent of Kar-lee and Aron Laurence is affirmed. All costs of this appeal are assessed against the defendant-appellant, Sarah Ruth Laurence.

AFFIRMED.

      . Karlee was born September 28, 1997, and Aron was born February 10, 2000. Robert and Sarah were married on December 12, 1997.


author: AMY, Judge.

text:
    SUCCESSION OF Jeanette Perron ARDOIN.
    No. 2007-43.
    Court of Appeal of Louisiana, Third Circuit.
    May 30, 2007.

      Arthur D. Mouton, Lafayette, LA, for Plaintiff/Appellant, Mary Plonsky Sailors.
    Leslie J. Schiff, Schiff Law Corporation, Opelousas, LA, for Defendant/Appellee, Wayne Ardoin.
    Court composed of JOHN D. SAUNDERS, OSWALD A. DECUIR, and MARC T. AMY, Judges.
   AMY, Judge.

hln this succession proceeding, the trial court found that the decedent’s daughter was not a forced heir under La.Civ.Code art. 1493. The daughter appeals, contending that the medical evidence showed that she has an inherited, incurable condition that may render her permanently incapable of caring for her person or administering her estate in the future. For the following reasons, we reverse and remand.

Factual and Procedural Background

The decedent, Jeanette Perron Ardoin, died on May 4, 2004. She was survived by her husband, Wayne Ardoin, and three adult children from a previous marriage. Mr. Ardoin filed a petition to file and execute Ms. Ardoin’s olographic testament. Dated May 7, 2001, the testament purports to bequeath the entirety of Ms. Ardoin’s estate to Mr. Ardoin.

Ms. Ardoin’s daughter, Mary Plonsky Sailors, filed a “Petition for Reduction of Excess Legacy,” alleging that she is a forced heir as, at the time of Ms. Ardoin’s death, an inherited, incurable disease or condition rendered her incapable of caring for herself and administering her estate in the future. She requested that the excess donation to Mr. Ardoin be reduced to satisfy her legitime, viz., the portion of the decedent’s estate reserved to her by law.

12At the August 2006 hearing on Ms. Sailors’ petition, the trial court heard testimony regarding Ms. Sailors’ diagnosis of bipolar disorder and the alleged incapacity associated with the condition. In its reasons for ruling, the trial court found that Ms. Sailors was “not permanently incapable of taking care of her person or administering her estate as of the time of the death of the decedent nor does she have an inherited, incurable disease or condition that may render her permanently incapable of caring for her person or administering her estate in the future.” The trial court’s ruling reveals not only its consideration of La.Civ.Code art. 1493, but its reliance on Succession of Martinez, 98-962 (La.App. 5 Cir. 2/10/99), 729 So.2d 22, wherein the fifth circuit affirmed a determination that the phrase “mentally incapable” within the meaning of Article 1493 required the heir to be severely handicapped.

Ms. Sailors appeals thé trial court’s determination that she is not a forced heir and asserts the following assignments of error in her brief to this court:

1. The trial court failed to follow the specific law of the State of Louisiana, in effect at the death of the decedent, specifically Article 1493 of the Louisiana [Civil Code] as amended by Act 1207 of 2003.
2. The trial court failed to utilize the clear medical evidence presented by the expert witnesses for both the Plaintiff and Defendant in finding that the plaintiff, Mary Plonsky Sailors, was [not] a forced heir of the decedent under the provisions of [La.Civ.Code art.] 1493.
3. The defendant did not present any medical evidence contrary to the testifying experts that contravened their testimonies] as to the inherited, incurable disease of Mary Plon-sky Sailors and her probable future incapacity to care for her person or administer her estate.

Discussion

Ms. Sailors argues that the trial court’s reliance on Martinez, 729 So.2d 22 in rendering its judgment was misplaced. In particular, she points out that Article 1493 lshas been amended since the fifth circuit rendered Martinez. She asserts that the article now provides a “more comprehensive definition of when a person is to be considered a forced heir.” In particular, she observes that a 2003 amendment added Paragraph E to Article 1493 and that it does not require that the person claiming forced heir status be “severely handicapped” at the time of decedent’s death. She contends that she satisfied her burden of proving forced heir status under the dictates of Article 1493 as it presently exists.

Louisiana Civil Code Article 1493 provides, in pertinent part:

A. Forced heirs are descendants of the first degree who, at the time of the death of the decedent, are twenty-three years of age or younger or descendants of the first degree of any age who, because of mental incapacity or physical infirmity, are permanently incapable of taking care of their persons or administering their estates at the time of the death of the decedent.
E. For purposes of this Article “permanently incapable of taking care of their persons or administering their estates at the time of the death of the decedent” shall include descendants who,, at the time of death of the decedent, have, according to medical documentation, an inherited, incurable disease or condition that may render them incapable’of caring for their persons or administering their estates in the future.

(Emphasis added.)

As referenced above, the trial court interpreted Article 1493 in light of Martinez, 729 So.2d 22, a case rendered by the fifth circuit in 1999. Central to Martinez, and to the trial court’s reasoning in this case as well, is the concept that Article 1493(A) requires that a purported forced heir be “severely handicapped.” However, such a requirement is not contained within the text of Article 1493. Furthermore, examination of Martinez reveals that this analysis can be traced to a ^version of Article 1493, comment (c) that has been edited by direction of the legislature and no longer appears in the commentary.

As reported by the fifth circuit, the plaintiff in Martinez, 729 So.2d at 24, was “33 years old and mildly mentally handicapped.” The trial court in that case determined that the plaintiff was not a forced heir under Article 1493 as he failed to prove that he was “severely handicapped.” In doing so, it relied on a portion of Article 1493, comment (c) indicating that the legislature “expressly manifested its intent that the rule making disabled children of any age forced heirs should only apply to ‘seriously handicapped’ individuals.” Id. at 24. According to the comment, this intent was evident due to the use of the word “permanently” before the word “incapable.” Id. The fifth circuit considered the facts presented in Martinez in light of this commentary and affirmed the trial court’s determination that the plaintiff was not a forced heir because he was not “severely handicapped.”

|fiThe trial court in the present case discussed Martinez at length, applying the “severely handicapped” qualification to the evidence presented. This reliance, 6however, was in error as the basis for the Martinez ruling has been eroded. By Concurrent Resolution No. 1 of the 1998 First Extraordinary Session, the legislature |7directed the reprinting of “the Revision Comments of 1996 to Civil Code Article 1493 (comment (c)) by deleting all references describing such incapable children in terms other than used in the article, to wit: children who are “permanently incapable of caring for their persons or administering their estates.”

We recognize that neither the trial court nor the parties were focused on the foundation of Martinez or the correctness of its requirements. Rather, the parties’ focus below, and also before this court, was whether the addition of Paragraph E to IsArticle 1493 legislatively overruled Martinez. Analysis of Martinez and its basis reveal that it was error to rely on the case as authority. Recall that the text of Article 1493 makes no reference to the “severely disabled” or “seriously handicapped” criteria. Instead, this criteria was utilized in Martinez due to a previous version of comment (c). Although we recognize the complexities raised by the changing commentary, we conclude that the trial court erred in applying Martinez and the standard expressed therein. As this reversible error of law pervades the trial court’s ruling, it is necessary for this court to perform a de novo review of the record and render a judgment on the merits. See Thompson v. State, 97-0293, 97-0302 (La.10/31/97), 701 So.2d 952. We turn to consideration of the evidence presented in light of the requirements of Article 1493.

Ms. Sailors seeks forced heir status as a descendant of the first degree who, because of mental incapacity or physical infirmity, is permanently incapable of taking care of her person or administering her estate at the time of the death of the decedent. La.Civ.Code art. 1493(A). Paragraph E of Article 1493 indicates that the “permanently incapable” requirement of Paragraph A includes “descendants who, at the time of death of the decedent, have, according to medical documentation, an inherited, incurable disease or condition that may render them incapable of caring for |9their persons or administering their estates in the future.” Having examined this record, we conclude that Ms. Sailors has proven the criteria of Article 1493.

By the time of Ms. Ardoin’s 2004 death, Ms. Sailors had been diagnosed with bipolar disorder and hospitalized several times for behaviors associated with her condition. Dr. Catherine McDonald, Ms. Sailors’ treating psychiatrist, explained that she began treating Ms. Sailors in 2001 while Ms. Sailors was hospitalized on one such occasion. The records detailing the hospitalizations indicate that Ms. Sailors has suffered from auditory hallucinations, delusional thoughts, and, at times, demonstrated a complete inability to care for her person. Both Dr. McDonald and Dr. Philip Arnold Landry, a psychiatrist who conducted a psychiatric examination of Ms. Sailors prior to trial, opined that Ms. Sailors’ disorder is likely an inherited, genetic disorder.

While Dr. McDonald testified that bipolar disorder is incurable, she explained that prescribed medications can help patients lead healthy and productive lives in that the frequency and severity of episodes may be reduced. Dr. McDonald noted that Ms. Sailors was hospitalized for two months “because she had refused to take medication.” According to Dr. McDonald, the refusal to take medication is “part of any psychotic disorder.... [T]he patient becomes paranoid that what you’re doing is trying to hurt them, poison them or somehow or another alter the way they feel and they don’t want you to do that.” Dr. McDonald also explained that the efficacy of the medications may be affected by the use of alcohol and drugs. According to her estimate, “sixty to seventy percent of our bipolar patients self-medieate.” The record contains evidence of Ms. Sailors’ past use of marijuana and alcohol. Although Dr. McDonald discourages these behaviors, she explained that “if [her patients] drink, I |10would just as soon they go ahead and take their medication also because a psychotic person who’s drinking is even worse than a non-psychotic person who’s drinking.”

Ms. Sailors’ work history indicates that she has held various positions, including one requiring bookkeeping skills. However, both Dr. McDonald and Dr. Landry were of the opinion that Ms. Sailors’ bipolar disorder will prevent her from being consistently employed. In fact, Ms. Sailors has not been regularly employed since 2003 and was determined by the Social Security Administration to be eligible for monthly disability benefits beginning May 2004. Ms. Sailors also denied at trial that she is able to work.

It is clear that Ms. Sailors typically has the ability to care for many facets of her everyday life, as Dr. McDonald opined that she can buy groceries, drive, apply for a loan, and balance a bank account. Ms. Sailors maintains a residence where she explained that she lives “alone with assistance.” She stated that she also performs her shopping with assistance. However, this level of functioning is possible only when Ms. Sailors is not acutely ill. Dr. McDonald testified that, despite the appearance that Ms. Sailors can appear “okay,” and able to • care for her affairs, “the next day it may be totally different.” Dr. McDonald explained that, during periods of illness, Ms. Sailors is “completely” incapable of taking care of her affairs. Dr. McDonald testified that during her hospitalization, “it’s so severe she can’t even function. At times she wasn’t eating. You know, just taking a bath, she couldn’t do that.” Ms. Sailors’ sister-in-law testified that she has assisted Ms. Sailors over the years with various issues, including obtaining health insurance coverage.

Inin short, this case presents a situation in which a person suffers from a permanent incapacity, but the extent of that incapacity varies. Notwithstanding her inability to maintain employment, Ms. Sailors may function well much of the time. However, as reference to her past history indicates, Ms. Sailors’ inability to care for either her person or her estate has been absolute during times of acute illness. Dr. McDonald testified as to the fluctuating nature of Ms. Sailors’ condition, labeling it as unpredictable and recurrent, and opined that “the future could be the same as the past.” Given these considerations, we find that Ms. Sailors’ condition satisfies the criteria of La.Civ.Code art. 1493 and that she has proven herself to be a forced heir of Ms. Ardoin. We enter judgment reflecting this determination and remand for further proceedings.

DECREE

For the foregoing reasons, the judgment of the trial court is reversed. Judgment is entered finding the appellant, Mary Plon-sky Sailors, to be a forced heir of the decedent Jeannette P. Ardoin. This matter is remanded for further proceedings consistent with this opinion. All costs of this proceeding are assigned to the Succession of Jeanette P. Ardoin.

REVERSED AND REMANDED.

      . The olographic testament provides:
      I Jeanette Perron Ardoin wife of Wayne Ardoin, make this my last will and testament hereby revoking any and all prior wills that I have made.
      I give and bequeath to my husband Wayne Ardoin all properties, movable and immovable, that I may own at my death.
      I name and appoint my husband Wayne Ardoin, executor of my estate with full seiz-in and without bond.
      This my will was written dated and signed by me at Opelousas, Louisiana, this 7th day of May 2001.

      . The comments to Article 1493 are not "part of the law and not enacted into law by virtue of their inclusion in this Act.” See 1996 La. Acts No. 77, § 4. However, we reference the comments insofar as they formed the basis for the ruling in Martinez and, in turn, were adopted by the trial court in the present case.

      . Martinez, 729 So.2d at 24 sets forth the comment relied upon in that case as follows:
      ... Article 1493(A) clarifies the law in several respects and should help reduce unwarranted or inappropriate claims. For one thing, the Article specifies that the time at which the incapacity or infirmity is determined to be relevant is at the donor’s death, which was always intended but may not have been fully clear in the earlier legislation. More important, the Legislature added the word "permanently” before the word "incapable” for the express purpose of emphasizing that a temporary incapacity or infirmity, even if severe, should not apply. The legislature thereby expressly manifested its intent that the rule making disabled children of any age forced heirs should only apply to "seriously handicapped” individuals. The Legislature requested specifically that these Comments be written to explain that it is the purpose of adding the word “permanently” to more effectively express the public policy intended, namely, to protect children who are over the age of 23 as forced heirs if, and only if, they are severely disabled.

      .With regard to Martinez, 729 So.2d 22, the trial court's extensive reasons for ruling reveal, in part:
      The major holding of the Martinez case is that the legislature intended that "the rule making disabled children of any age forced heirs should only apply to 'seriously handicapped' individuals.” Id. at 24. The Martinez court, in relying on the Revision Comments, went on to say, "The Legislature requested specifically that these comments be written to explain that it is the purpose of adding the word 'permanently' to more effectively express the public policy intended, namely, to protect children who are over the age of 23 as forced heirs if, and only if, they are severely disabled.” Id. at 25. In the Martinez case, a 33-year-old, mildly mentally handicapped man was found not to qualify as a forced heir. Despite the fact that he was found to be unemployable and was receiving Social Security disability benefits, he was found to not qualify as a forced heir for reasons such as: his social activity, participation in volunteer groups, ability to take care of his home, and his ability to cook. Thus, he was not found to satisfy the "permanently incapable” language of Article 1493.

        Therefore, under Martinez, it would be required of Ms. Sailors to show that her disorder rises to the level of a "serious handicap” or "severe disability.” However, it should be noted that the Martinez decision occurred prior to the addition of Section E to Article 1493. Ms. Sailors places heavy reliance upon Section E of Article 1493, claiming that it "totally changes the coverage of the law," and "provides to the court a completely different standard than that suggested by the Martinez case.” Pretrial Memorandum for Plaintiff. This interpretation of Section E would force this Court to completely disregard the holding of Martinez, and to instead rely solely on the language of Section E.
      Section E of Article 1493
      Unlike Section A, there is a complete lack of Revision Comments concerning the addition of section E to Article 1493. There is no specification of legislative intent concerning its language. The lack of comments is despite a request to the Louisiana State Law Institute "to write comments to all changes made by this Act.” 2003 La. Sess. Law Serv. Act 1207. However, the text of section E itself makes clear that its purpose is to clarify and broaden the meaning of "permanently incapable of taking care of their persons or administering their estates at the time of the death of the decedent.” The Article now specifically provides that this language includes “descendants, who, at the time of death of the decedent, have, according to medical documentation, an inherited, incurable disease or condition that may render them incapable of caring for their persons or administering their estates in the future.” However, it is not the opinion of this Court that the addition of Section E "totally changes the coverage of the law,” nor does it appear to "provide to the court a completely different standard than that suggested by the Martinez case. What Section E does appear to do is to liberalize the "as of the time of death of the decedent” requirement of Article 1493(A). Thus, a claimant need not be permanently incapable of taking care of their person or administering their estate at the time of death, but may now still qualify as a forced heir if medical documentation can be produced to show that as of the time of death the claimant has an inherited, incurable disease or condition that may render them so incapable in the future. It is the opinion of this Court that whereas the language of Section E contributes to the time at which a person must have a condition or incapability, Section A and the Martinez decision contribute to the required level of severity and permanence of such condition. There is no statement, whether in the non-existent comments of Section E or the jurisprudence of this state, that suggests an intended overruling of Martinez.

      Proof of Forced Heirship
      Based upon the requirements of Article 1493, in order for Ms. Sailors-to be considered a forced heir, it must be found that:
      1. Her bipolar condition existed at the time of Jeanette, Ardoin’s death and is medically documented;
      2. That the bipolar condition is an inherited, incurable disease;
      3. That the bipolar condition causes a “serious handicap” or "severe disability” that does, OR will, render her
      permanently incapable of taking care of her person AND/OR
      permanently incapable of administering her estate.
      We further note that, after setting forth this standard, the trial court discussed the testimony and other evidence in the record and made numerous factual findings. Thereafter, the trial court referenced that portion of comment (c) to Article 1493 indicating that it was "contemplated that the guidelines that the courts would use in interpreting and enforcing the incapacity or infirmity provisions were the jurisprudence” concerning limited interdiction. In this regard, the trial court examined Interdiction of Cornwell v. Cornwell, 97-425 (La.App. 3 Cir. 10/15/97), 702 So.2d 938, which discussed both full and limited interdiction. Ultimately, the trial court concluded that Ms. Sailors was not a forced heir, stating:
      In summary, this Court finds that Ms. Sailors’ condition does not rise to the level of a "serious handicap” or cause her to be “severely disabled” as, stated in the Martinez decision. For the same reasons, this Court also finds that her condition does not render her "permanently incapable of taking care of her person,” nor does it cause her to be “permanently incapable of administering her estate.” This Court further finds that, based upon the facts, it has not been sufficiently shown that her condition may render her so incapable in the future.

      . Concurrent Resolution No. 1 provides:
      WHEREAS, the Louisiana Legislature revised the laws on forced heirship but continued the protection and status as forced heirs of those children who are "permanently incapable of taking care of their persons or administering their estates”; and
      WHEREAS, the legislature rejected the Louisiana State Law Institute's recommendation to deny such children the protection and classification as forced heirs; and
      WHEREAS, the legislature in Section 4 of Act No. 77 of the First Extraordinary Session of 1996 directed the Louisiana State Law Institute to draft comments regarding the meaning of such permanently incapacitated children "which are consistent with the provisions of the Act”; and
      WHEREAS, the Revision Comments of 1996 to Civil Code Article 1493 (comment (c)) published by West Publishing Company incorrectly characterize permanently incapable children by terms not included within the article as enacted by the legislature, such as "severely disabled” and "seriously handicapped”, and thereby purport to limit the category of incapable children as defined by the legislature; and
      WHEREAS, the language of the Civil Code Article 1493 does not require that the child prove that he is either "severely disabled” or "seriously handicapped” but instead provides for a protection for a child who is "permanently incapable of caring for his person or administering his property”; and
      WHEREAS, the term "permanently” as used in Civil Code Article 1493 relates to duration of the incapacity; and
      WHEREAS, the phrase "incapable of caring for his person or administering his property” relates to the extent of his incapacity; and
      WHEREAS, the terms "disabled” and "handicapped” are terms not adopted by the legislature and not necessarily coextensive with the standard "incapable of caring for his person or administering his property”; and
      WHEREAS, as a consequence, portions of comment (c) to Civil Code Article 1493 are not consistent with the provisions of the article as enacted by the legislature; and
      WHEREAS, pursuant to R.S. 24:256, West Publishing Company is authorized to print, publish, sell, and distribute any edition or supplement of the Louisiana Revised Statutes, including the Civil Code, prepared and certified by the Law Institute.
      THEREFORE, BE IT RESOLVED that the Legislature of Louisiana hereby directs the Louisiana State Law Institute to instruct West Publishing Company to reprint the Revision Comments of 1996 to Civil Code Article 1493 (comment (c)) by deleting all references describing such incapable children in terms other than those used in the article, to wit: children who are “permanently incapable of caring for their persons or administering their estates”.
      BE IT FURTHER RESOLVED that copies of this Resolution shall be transmitted to the Successions Committee of the Louisiana State Law Institute and to West Publishing Company.

      . The Editor’s Note to La.Civ.Code art. 1493 (West, 2007 edition), provides, in part:
      Editor’s note. Article 1493 was amended by Acts 1996, 1st Ex.Sess., No. 77, § 1 with revision comments. The original revision comments, however, were modified by the Louisiana State Law Institute after the amendment of Article 1493 and the publication of Act No. 77 in the Session Law Service. For the original comments, see West's Louisiana Session Law Service 1996, No. 2, p. 153.
      Revision Comment (c) under Article 1493 has been and reprinted in accordance with Concurrent Resolution No. 1 (1988 1st Ex. Sess.). The legislature directed the Louisiana State Law Institute to edit the 1996 Revision Comment (c) under Article 1493 by deleting all references describing incapable children in terms other than those used in that article, to-wit: children who are “permanently incapable of caring for their persons or administering their estates” and instructed West Publishing Company to reprint the Comment (c), as edited.

      . A letter from the Social Security Administration, dated April 19, 2005, is contained in the record and indicates that Ms. Sailors was determined to have become disabled on November 9, 2003 and entitled to begin receiving benefits in May 2004.

      . We note that Article 1493, comment (c) appears to anticipate a situation in which a descendent may suffer from a permanent incapacity, but may experience periods in which the extent of that incapacity fluctuates. It provides, in part:
      The Legislature also requested that these Comments note that as a factual matter a person can be permanently incapable or infirm but on occasion have a temporary remission. It is not intended to be the policy of the Article that a mere temporary remission at the time of the decedent’s death would disqualify an heir from being classified as “permanently” incapable or infirm within the new definition, provided that the condition is othferwise permanent.

      .Portions of the testimony presented at the hearing relate to the standards of limited interdiction due to that portion of Article 1493, comment (c) which suggests that the incapacity provisions of the Article may be made in reference to the guidelines of limited interdiction. See La.Civ.Code art. 390. However, this reference is of little guidance in the present case as Ms. Sailors' capacity to function with the permanent condition of bipolar disorder varies.