author: PARRO, J.

text:
    A. Ponder JONES, v. LIVINGSTON PARISH LAW ENFORCEMENT DISTRICT A. Ponder Jones, v. Livingston Parish School Board Beverly Bonneval v. Livingston Parish Gravity Drainage District No. 1.
    Nos. 2007 CA 0628, 2007 CA 0629, 2007 CA 0630.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 14, 2007.
    Writ Denied Oct. 31, 2007.

      Robert S. Angelico, Cheryl M. Kornick, K. Todd Wallace, Kelly B. Becker, Liskow & Lewis, New Orleans, for Plaintiffs-Appellants A. Ponder Jones and Beverly Bon-neval.
    Eric L. Pittman, Denham Springs, for Defendant-Appellee Livingston Parish Law Enf. District.
    Harry J. Phillips, Jr., Thomas R. Peak, Tracy A. Morganti, Taylor, Porter, Brooks & Phillips, Baton Rouge, for Defendant-Appellee Livingston Parish School Board.
    D. Blayne Honeycutt, Wanda J. Edwards, Fayard & Honeycutt, Denham Springs, for Defendant-Appellee Livingston Parish Gravity Drainage District No. 1.
    William L. Schuette, Fred L. Chevalier, Jones, Walker, Waechter, Poitevent, Car-rere & Denegre, L.L.P., Baton Rouge, for Intervenor-Appellee Denham Springs Economic Development District.
    Before: PARRO, KUHN, and DOWNING, JJ.
   PARRO, J.

|3The plaintiffs appeal a judgment dismissing all of their remaining challenges to an election in which the voters of Livingston Parish had approved propositions whereby a portion of revenues derived from certain sales taxes levied and collected by the defendants would be re-dedicated to payment of municipal bonds issued to finance the development of a Bass Pro Shop retail outlet in Livingston Parish. The defendants filed a motion to dismiss the appeal on the basis that this court has no subject matter jurisdiction over this matter. After a review of the record and the latest decision from the Louisiana Supreme Court involving this continuing litigation, we grant the motion and dismiss this appeal.

FACTUAL AND PROCEDURAL BACKGROUND

On May 26, 2005, A. Ponder Jones, one of the plaintiffs in this matter, filed two lawsuits as a taxpayer of Livingston Parish and a resident of the district in which certain public entities levy and collect sales and use taxes; Beverly Bonneval filed a similar suit on the same day against a third public entity. The defendants in these three cases (the Election Challenge Suits), the Livingston Parish Law Enforcement District (the Law Enforcement District), the Livingston Parish School Board (the School Board), and the Livingston Parish Gravity Drainage District No. 1 (the Drainage District), are all political subdivisions of the State of Louisiana with the authority to levy and collect sales and use taxes. The defendants had agreed to form a cooperative endeavor agreement with the Denham Springs Economic Development District (the Development District), whereby they would re-dedicate certain percentages of their sales and use tax revenues for a limited time for debt service on sales tax increment revenue bonds issued by the Development District to finance a Bass Pro Shop retail outlet in Livingston Parish. A resolution describing the bonds, their security, the proposed cooperative endeavor agreement, and the method of payment of the bonds, and authorizing the issuance of the bonds (the Bond Resolution), was adopted by the Development District on March 8, |42005. This resolution was published in aceor-dance with applicable law on March 13, 2005. Each of the defendants submitted to the voters propositions authorizing the re-dedication of certain percentages of the sales and use taxes they collect for the purpose of debt service on the bonds used to finance the Bass Pro project. All of these propositions were overwhelmingly approved in a parish-wide election held April 23, 2005. In accordance with that election, by ordinances approved by each taxing entity, the defendants promulgated the official results of the election authorizing the re-dedication of the taxes.

The plaintiffs in these Election Challenge Suits sought a judgment setting aside those ordinances on the grounds that the terms of the propositions, the ordinances, and the taxes authorized therein were unconstitutional and/or in contravention of the statutes that enabled the defendants to levy and collect sales and use taxes. .They further sought a declaratory judgment holding that the ordinances and the taxes authorized in them were unconstitutional and/or in contravention of the enabling legislation. The petitions pointed out that Article VI, § 30 of the Louisiana Constitution provides that political subdivisions “may exercise the power of taxation ... under authority granted by the legislature for parish, municipal, and other local purposes, strictly public in their nature.” (Emphasis added in the petitions). Specifically, the Law Enforcement District was authorized, pursuant to LSA-R.S. 33:2740.7, to levy a sales and use tax within the unincorporated areas of Livingston Parish, the proceeds of which were to be used “for operating and maintaining the parish prison and providing for the payment of other costs of law enforcement in the parish.” The Drainage District was 1 .^authorized, pursuant to LSA-R.S. 38:1805, to levy a sales and use tax, the proceeds of which were to “be used exclusively to acquire drainage works; rights of way for canals and ditches; flood prevention works; equipment and facilities necessary to construct, maintain and operate outlets for the waters of the district; and to prevent flooding.” The plaintiffs argued that the re-dedications of the sales and use taxes approved by the voters in the elections and promulgated in the ordinances by these two political subdivisions were not for the purposes approved by the legislature in the enabling statutes, but were “to pay debt service on sales tax increment revenue bonds issued by or on behalf of the [Development District] to finance a Bass Pro retail outlet and related public improvements and infrastructure within the [Development District] .. The plaintiffs argued that the elections were invalid because only the legislature could authorize the political subdivisions to exercise the power of taxation, and the public could not change the purposes for which the legislature had approved the taxes. They claimed the ordinances exceeded the authority granted by the legislature and violated Article VI, § 30 of the Louisiana Constitution.

The plaintiffs further contended that the ordinances passed by all three public entities were in violation of Article VII, § 14(A) of the Louisiana Constitution, which restricts the manner in which local entities may use sales and use tax proceeds, stating, “[e]xcept as otherwise provided by this constitution, the funds, credit, property, or things of value of the state or of any political subdivision shall not be loaned, pledged, or donated to or for any person, association, or corporation, public or private.” The plaintiffs’ petitions pointed out that the supreme court had interpreted this provision as prohibiting local entities from loaning, pledging, or donating proceeds from taxes without a “pre-exist-ing legal obligation” to do so, and also as prohibiting the use of tax revenues to pay the debts of another governmental entity. City of Port Allen v. Louisiana, Mun. Risk Mgmt. Agency, 439 So.2d 399, 401 (La.1983). The plaintiffs contended that the re-dedications of sales and use tax proceeds approved in the elections and promulgated in the ordinances violated Article VII, § 14(A), because none of these local entities had a pre-existing legal obligation to use tax proceeds for debt service of another governmental entity’s obligation.

The plaintiffs invoked the provisions of LSA-R.S. 18:1401, et seq., the Louisiana Elections Code, and requested summary proceedings to set aside the ordinances and the results of the election. They also requested judgments declaring that the propositions, the ordinances, and the taxes authorized therein were unconstitutional and, as to the Law Enforcement District and the Drainage District, in violation of the enabling legislation. The defendants filed exceptions raising the objections of no cause of action under the Elections Code, prescription/peremption, and improper cu-mulation of actions. After a hearing, the court entered judgment granting the exceptions of no cause of action with respect to summary proceedings under the Elections Code; found that any claim to challenge the “call” of the elections was per-empted pursuant to LSA-R.S. 18:1405(G); and found that the plaintiffs had improperly cumulated summary Elections Code proceedings with an ordinary proceeding for a declaratory judgment. The judgment, which was signed on June 1, 2005, dismissed the plaintiffs’ Elections Code proceedings and stayed the proceedings for declaratory judgment until resolution of another pending suit involving these same claims and parties. The plaintiffs appealed, pursuant to LSA-R.S. 18:1409, and simultaneously filed notice of their intent to seek supervisory writs. This court reviewed the matter under its supervisory jurisdiction and found no error in the district court’s judgment dismissing the claims brought under the Elections Code. Therefore, the writ was denied and the appeals were dismissed as moot. In a per curiam opinion explaining its decision on the writ, this court stated that “relators can pursue their constitutional and statutory challenges |7to the propositions and ordinances at issue pursuant to those portions of the suits seeking declaratory relief pending in the district court.” Jones v. Livingston Parish Law Enf. Dish, 05-1200 (La.App. 1st Cir.6/9/05), 904 So.2d 93 (unpublished writ action).

In the meantime, after the Bond Resolution was adopted by the Development District on March 8, 2005, and published on March 13, 2005, thirty days elapsed without any challenge to it. On May 26, 2005, the same day the Election Challenge Suits were filed, the Development District filed a “Motion for Judgment” (the Bond Validation Suit), seeking a judicial declaration that the bonds, their security, and their payment method, as described in the Bond Resolution, were valid. The plaintiffs in the Election Challenge Suits opposed the Development District’s motion and challenged the legality of the security and payment method of the bonds, the legality of the cooperative endeavor agreement among the taxing authorities, and the legality of the election approving the propositions described in the Bond Resolution. The Development District moved to strike these challenges on the grounds that the taxpayers’ opposition was filed beyond the thirty-day peremptive period required by LSA-R.S. 33:9038.34(L) and LSA-Const. art. VI, § 35(B), and the district court granted the motion to strike. On appeal, this court affirmed the judgment in part, but also ruled that because the publication of the Bond Resolution took place before the elections, the challenges to the elections were timely, because they were subject to the sixty-day period following promulgation of the election results, as set out in LSA-Const. art. VI, § 35(A), and were not barred by the thirty-day limitation commencing from publication of the Bond Resolution. This court concluded that “we reverse any holding by the trial court that a challenge to the legality of the election was perempted.” Denham Springs Econ. Dev. Dish v. All Taxpayers, 05-1684 (La. App. 1st Cir.8/25/05), 927 So.2d 328, 337. The supreme court granted the taxpayers’ writ and, citing LSA-Const. art. VI, § 35(B), heldLthat the failure to challenge the Bond Resolution within thirty days of its publication barred all challenges to the bonds, their security, and the means of payment. Denham Springs Econ. Dev. Dish v. All Taxpayers, 05-2274 (La.10/17/06), 945 So.2d 665, 687-88 (Denham Springs II). Because the Development District had not sought a writ on this court’s ruling that other timely-filed challenges to the legality of the elections were not barred by the thirty-day limitation, the supreme court pretermitted consideration of that issue. Denham Springs II, 945 So.2d at 673 n. 12.

After the supreme court had rendered its judgment in the Bond Validation Suit, the defendants in these Election Challenge Suits moved to have the stay lifted. The motion to lift the stay was granted in November 2006, and the defendants then filed a peremptory exception, or alternatively, a motion for summary judgment, seeking dismissal of all the plaintiffs’ claims in these consolidated matters on the basis of the supreme court’s decision in Denham Springs II. After a hearing, the district court granted the exception/motion and dismissed all of the plaintiffs’ remaining challenges. A judgment was signed on December 18, 2006, and this appeal followed.

In this appeal, the plaintiffs contend that this court’s statement in its review of the Bond Validation Suit that the election challenges could proceed is still good law, since the supreme court did not rule on that issue in Denham Springs II, and for that reason, this court’s decision on that issue is a final judgment. They also argue that this court’s statement in its writ action in these Election Challenge Suits concerning the continued viability of the plaintiffs’ challenges to the propositions and ordinances at issue is the “law of the case.” Therefore, the plaintiffs contend the district court erred in ignoring those decisions and dismissing their challenges to the constitutionality and legality of the propositions, ordinances, and elections.

Relying on the supreme court’s decision in Denham Springs II, the defendants oppose these arguments and have moved to dismiss the appeal on the basis that this court lacks subject matter jurisdiction. They argue that the true nature of the plaintiffs’ claims in these suits is an attack on the pledges of certain tax increments that are to |3serve as security for the Bass Pro project bonds. They claim that the clear language of LSA-Const. art. VI, § 35(B) and LSA-R.S. 33:9038.34(L), as well as the supreme court’s interpretation of those constitutional and statutory provisions in Denham Springs II, withdraws from all courts the authority to consider any challenge relating to the bonds, their security, the cooperative endeavor agreements, and the method of payment of the bonds. Thus, they contend, this court has no subject matter jurisdiction over this appeal.

DISCUSSION

The motion to dismiss this appeal raises the issue of whether this court may now consider the merits of the plaintiffs’ constitutional challenges to the election and the ordinances promulgated by the defendants as a result of that election, based on this court’s statements in its review of the Bond Validation Suit and in its writ action in this case, or whether those challenges were preempted, based on the supreme court’s opinion in Denham Springs II. Since this issue is confined to legal matters and does not involve any factual disputes, this court’s review is de novo. See Price v. Roy O. Martin Lumber Co., 04-0227 (La.App. 1st Cir.4/27/05), 915 So.2d 816, 824, writ denied, 05-1390 (La.1/27/06), 922 So.2d 543; Elliott v. Amato & Creely, 05-0376 (La.App. 1st Cir.3/29/06), 934 So.2d 779, 781. And, because the resolution of this issue may determine the outcome of this case, we will address the motion to dismiss first.

The defendants’ motion to dismiss the appeal is based in part on Article VI, § 35(B) of the Louisiana Constitution, which states:

Contesting Ordinance or Resolution; Time Limit. Every ordinance or resolution authorizing the issuance of bonds or other debt obligation by a political subdivision shall be published at least once in the official journal of the political subdivision or, if there is none, in a newspaper having general circulation therein. For thirty days after the date of publication, any person in interest may contest the legality of the ordinance or resolution and of any provision therein made for the security and payment of the bonds. After that time, no one shall have any cause of action to test the regularity, formality, legality, or effectiveness of the ordinance or resolution, and provisions thereof for any cause whatever. Thereafter, it shall be conclusively presumed that every legal requirement for the issuance of the bonds or other debt obligation, including all things pertaining to the election, if any, at which the bonds or other debt obligation were authorized, has been complied with. No court shall have authority to inquire into any of these matters after the thirty days. (Emphasis added).

|inLouisiana Revised Statute 33:9038.34 (as re-designated), which was first enacted by the legislature in 2002, provides the statutory authority for local governmental subdivisions or entities to issue revenue bonds payable from revenues generated by economic development projects with a pledge and dedication of sales tax increments to finance all or part of such a project. With reference to the time limit for challenges to bond resolutions proposed and adopted under its authority, Subsection L states:

A copy of the ordinance, or resolution if the issuer does not act by ordinance, authorizing the issuance of bonds hereunder shall be published immediately after its adoption in one issue of the official journal of the district. For thirty days after the date of publication, any person in interest may contest the legality of such ordinance or resolution, any provision of the bonds, the provisions therein made for the security and payment of the bonds, and validity of all other provisions and proceedings relating to the authorization and issuance of the bonds. After the expiration of such period, no person may contest the regularity, formality, legality, or effectiveness of the ordinance or resolution, any provisions of the bonds to be issued pursuant thereto, the provisions for the security and payment of the bonds, and the validity of all other provisions and proceedings relating to their authorization and issuance, for any cause whatever. Thereafter, it shall be conclusively presumed that the bonds, the legal documents providing for the bonds, and all security for the bonds is legal and that every legal requirement for the issuance of the bonds has been complied with. No court shall have authority to inquire into any of these matters after the aforementioned publication period. (Emphasis added).

The record shows, and both sides agree, that the plaintiffs in these consolidated suits did not contest the legality of the Bond Resolution or any of its provisions until after the thirty-day period set out in the above constitutional article and statute.

The defendants aver that the plaintiffs’ challenges in these consolidated cases are not “election challenges,” directed against the election itself and the methods or procedures used in that election. Rather, they contend that the plaintiffs’ claims address the substance of the underlying propositions, in particular, the re-dedication of certain tax revenues for a purpose not chosen by the legislature and not allowed under the constitution. As such, the defendants argue that the supreme court’s decision in Denham Springs II forecloses the plaintiffs’ claims, because the court there held that unless the challenges were filed within thirty days after publication of the bond resolution, no court has authority to consider any challenge to the bonds, their security, or the method of payment. Because the re-dedication of the defendants’ tax revenues constitutes a pledge made as security for the bonds, the plaintiffs had to |nassert their claims within thirty days after publication of the Bond Resolution, or lose their cause of action. Since the decision in Denham Springs II was made after this court had observed that election challenges could still be maintained, the defendants state that the district court correctly applied that later jurisprudence in dismissing the plaintiffs’ remaining claims in these suits.

However, the plaintiffs assert that their election challenges fall under Article VI, § 35(A), which states:

Contesting Election; Time Limit, For sixty days after promulgation of the result of an election held to incur or assume debt, issue bonds, or levy a tax, any person in interest may contest the legality of the election, the bond issue provided for, or the tax authorized, for any cause. After that time no one shall have any cause or right of action to contest the regularity, formality, or legality of the election, tax provisions, or bond authorization, for any cause whatsoever. If the validity of any election, tax, debt assumption, or bond issue authorized or provided for is not raised within the sixty days, the authority to incur or assume debt, levy the tax, or issue the bonds, the legality thereof, and the taxes and other revenues necessary to pay the same shall be conclusively presumed to be valid, and no court shall have authority to inquire into such matters. (Emphasis added).

The plaintiffs contend that this court’s reference to Section 35(A) when it reviewed the Bond Validation Suit was correct and is now a final judgment, since the supreme court pretermitted consideration of this issue. Therefore, they claim this court’s judgment applying the sixty-day limit of Section 35(A) to the plaintiffs’ election challenges cannot be attacked by the defendants in this appeal.

However, any final judgment of this court can be overruled or reversed by the supreme court. The fact that the supreme court pretermitted consideration of an issue in this case does not necessarily mean that it agrees with the decisions of the lower courts on that issue. For instance, in World Trade Center Taxing Dist. v. All Taxpayers, 05-0374 (La.6/29/05), 908 So.2d 623, 638, the supreme court pretermitted discussion of one issue and stated that although the court was “not fully in accord with the rationale of the court of appeal,” it would affirm the judgment, because the court of appeal had reached the correct result. As the supreme court stated in Denham Springs II, 945 So.2d at 673 n. 12, it simply will not consider arguments in briefs or oral arguments that are not included in the writ application, even if such arguments might have merit. See also Hanks v. Entergy Corp., 06-0477 (La.12/18/06), 944 So.2d 564, [,,,569 n. 5; Boudreaux v. State, Through Dept. of Transp. and Development, 01-1329 (La.2/26/02), 815 So.2d 7, 11 n. 9. Therefore, the supreme court’s pretermitting discussion of this issue cannot be interpreted as approval of this court’s comments regarding it.

Plaintiffs also argue that because this court made a similar statement when these issues were considered in this court’s earlier writ action in these cases, that ruling is “the law of the case” and could not be changed at this point in the litigation by the district court or this court. They claim the district court erred in ignoring this “law of the case” when it concluded the plaintiffs’ claims must be dismissed. It is true that generally, when an appellate court considers arguments made in supervisory writ applications, the court’s disposition on the issue considered becomes the “law of the case,” foreclosing re-litigation of that issue either at the district court on remand or in the appellate court on a later appeal. However, the denial of a writ application creates a different situation. A denial of supervisory review is merely a decision not to exercise the extraordinary powers of supervisory jurisdiction, and does not bar reconsideration of, or a different conclusion on, the same question when an appeal is taken from a final judgment. Cotton v. Gaylord Container, 96-1958, 96-2029, and 96-2049 (La.App. 1st Cir.3/27/97), 691 So.2d 760, 763, writ denied, 97-0800 (La.4/8/97), 693 So.2d 147. In the consolidated cases we are considering, this court denied the writ, thereby declining to exercise its supervisory jurisdiction. See Jones, 05-1200, supra. Therefore, reconsideration of those issues is appropriate at this time.

Moreover, this court must always give deference to decisions from the supreme court, even if a particular decision runs counter to the inclination of the appellate court in the same or a similar case. This is especially true when, as in this case, the supreme court’s decision involves the same issues and parties as the matter being considered by the appellate court. For these reasons, we, like the district court in this case, must take into consideration the supreme court’s decision in the Bond Validation Suit, Denham Springs II, and, if relevant to the issues we are considering, apply that court’s interpretations to these consolidated cases.

With that in mind, we note that the plaintiffs’ claims in these cases consist of a challenge to the voters’ rights to re-dedicate a certain portion of the taxing entities’ tax | ^revenues to a purpose other than that provided by the legislature. The plaintiffs are not claiming there were any procedural irregularities in the elections, such as insufficient notice, denial of some voters’ rights to vote, improper counting of the ballots, etc. Of course, any election challenge based on such activities could not be made until after the elections. For that reason, the application of Article VI, § 35(A) of the constitution, which allows such claims to be brought within sixty days following the promulgation of the election results, is correct. However, the challenges brought in the suits we are considering are to the substantive provisions approved by the voters. These plaintiffs’ claims involve the method of payment and the pledge of certain tax revenues as security for payment of the bonds that will be used to finance the Bass Pro project.

In Denham Springs II, the supreme court observed that tax increment financing is authorized by the state’s Cooperative Economic Development Law, LSA-R.S. 33:9020, et seq., as a tool used to finance public investments and infrastructure improvements needed for economic development in specific geographical areas, usually blighted or economically depressed areas, without causing any additional tax burden on local taxpayers. Denham Springs II, 945 So.2d at 668 n. 1. One of the issues to be decided by the court was whether the thirty-day peremptive period set forth in Article VI, § 35(B) and LSA-R.S. 33:9038.34(L) “precludes any challenges to the provisions of a bond resolution, including the provisions made for the security and payment of the bonds .... ” Denham Springs II, 945 So.2d at 668. On that issue, the court observed:

[The taxpayers] acknowledged they were not challenging the [Development] District’s right to pledge its own money to the Project or to issue bonds secured by the District’s money. Rather, their challenge was to the ability of other taxing entities to agree to cooperate in the Project and pledge their tax monies to secure the bonds.

Denham Springs II, 945 So.2d at 672. The court recited all the procedural steps required by the applicable statutes for issuing such bonds and pledging or dedicating sales tax increments for the facilitation of economic development, all of which had been observed by the taxing entities. With respect to legal proceedings to validate such bonds, the court cited LSA-R.S. 13:5121, et seq., including the provisions of LSA-R.S. 13:5129, which states:

|uIn the event the decree of the court validates the bonds or validates the action taken to provide a new or different source of payment for the bonds, and no appeal is taken within the time above prescribed, or if appeal is taken and the decree of the court is affirmed, such decree shall be forever binding and conclusive as to the validity of the bonds, the validity of the tax, any lease or other means provided for the payment of such bonds and the validity of all pledges of revenues and of all covenants and provisions contained in the instrument or proceedings authorizing or providing for the issuance of such bonds, and as to all matters adjudicated and as to all objections presented or which might have been presented in such proceeding, and shall constitute a permanent injunction against the institution by any person of any action or proceeding contesting the validity of the bonds or any other matter adjudicated or which might have been called in question in such proceedings. (Emphasis added).

Denham Springs II, 945 So.2d at 677. The time limits referenced in this statute refer to the filing and response times for a bond validation suit, all of which had been correctly followed by the taxing entities in connection with the Bond Validation Suit being reviewed by the supreme court. Once those procedures had been properly followed, and the decree of the supreme court in Denham Springs II affirmed the lower courts’ decisions validating the bonds, we consider that its decree is conclusive as to the validity of the bonds, the tax, the pledges of revenues, or any other provisions of the bonds.

Moreover, the supreme court cited the thirty-day peremption period in Article VI, § 35(B) and LSA-R.S. 33:9038.34(L), noting that:

[T]he constitutional and statutory provisions clearly and unambiguously create a thirty-day peremptive period for contesting the legality of a bond resolution and any provisions made therein for the security and payment of the bonds. This peremptive period commences with the publication of the bond resolution in the official journal of the political subdivision. It is during this period that any person of interest may present to the court any questions or concerns the person may have regarding the bonds, the security for the bonds, and any provision of the bond resolution. After the expiration of the thirty-day period, the right to contest is extinguished or perempted, and it is conclusively presumed all legal requirements for the issuance of the bonds have been satisfied and that the bonds, the legal documents providing for the bonds, and all security for the bonds are legal. Moreover, no court has authority to consider any challenge after the thirty-day peremptive period.

Denham Springs II, 945 So.2d at 686. Applying these precepts to the provisions of the bonds at issue in the Bond Validation Suit, which are the same bonds challenged in these consolidated Election Challenge Suits, the court said:

According to the constitutional and statutory language addressed above, any person of interest had thirty days from the publication to contest the [^legality of the resolution and any provisions made for the security and payment of the bonds. It was during this period that the [taxpayers] as interested persons could and should have presented to the court any questions or concerns they may have had regarding the provisions of the Bond Resolution for the security and payment of the bonds .... After the thirty-day [peremptive] period, the right to contest the Bond Resolution and the security provisions was extinguished, and a conclusive legal presumption of the validity of the bonds and the security provisions was established. After that time, the courts have no authority to consider any challenges to these matters.

Denham Springs II, 945 So.2d at 686-87. The court stated, “[b]ecause the [taxpayers] failed to timely exercise the right to contest the Bond Resolution and its security provisions, their challenge is now per-empted.” Denham Springs II, 945 So.2d at 688.

The supreme court’s holding in Denham Springs II could hardly have been stated more clearly. Because the types of claims brought by the plaintiffs/appellants in this case are precisely the types of challenges perempted by the applicable constitutional and statutory provisions, we must conclude that this court has no authority to consider the challenges. As such, the defendants’ motion to dismiss this appeal must be granted.

CONCLUSION

Based on the foregoing, we grant the motion to dismiss this appeal. Each party to this appeal is to bear its own costs.

MOTION GRANTED; APPEAL DISMISSED.

      . The district court approved an oral motion to consolidate the three cases during a telephone status conference on May 27, 2005, and a judgment approving the consolidation was signed June 1, 2005.

      . Such tax increment financing (TIF) is authorized by Louisiana’s Cooperative Economic Development Law, LSA-R.S. 33:9020, ef seq.

      . In an earlier bond validation suit, the Louisiana Supreme Court had concluded that the clear wording of the tax increment financing statutes required that once citizens had voted for a tax dedicated to one purpose, the tax could not be used for a purpose other than that which had been approved by the citizens; any alteration of a prior dedication had to be by vote of the people. Therefore, the propositions for financing the Bass Pro Shop had to be put to a vote. Denham Springs Economic Dev. Dist. v. All Taxpayers, 04-1674 (La.2/4/05), 894 So.2d 325, 335 (Denham Springs I).

      . The Law Enforcement District's ordinance was approved April 29, 2005, and authorized the temporary re-dedication of seventy-two percent of the proceeds of a one-half of one percent sales and use tax previously approved by the voters on March 10, 1992. The Drainage District's ordinance authorized the temporary re-dedication of seventy-two percent of the proceeds of a one-half of one percent sales and use tax previously approved by the voters on January 19, 1985, and renewed on January 15, 2005. The School Board approved two ordinances: one authorized the temporary re-dedication of the proceeds of a one-half of one percent sales and use tax levied and collected by Special Sales Tax District No. 1, previously approved by the voters on July 18, 1987; the other, a parish-wide proposition, authorized the temporary re-dedication of the proceeds of a one percent sales and use tax levied and collected by the School Board, which was previously approved by the voters on May 13, 1978.

      .This argument was not made concerning the School Board's ordinances because the enabling legislation for special taxing districts, LSA-R.S. 33:2721.6, does not specify or limit how the taxes are to be used, but merely requires that the proceeds “be dedicated solely for the purposes approved by the electorate.” Similarly, LSA-R.S. 33:2737.44 authorizes the School Board to levy and collect a sales tax "after the question of the imposition of the tax shall have been submitted to the qualified electors of the parish ...” and requires only that the ordinance imposing the tax "shall specify the purpose or purposes for which the tax is imposed” and that "the revenues derived therefrom shall be dedicated and used solely for said purposes.” For each tax, the voters had initially approved the use of sales and use tax revenues for education-related purposes only. That purpose was changed in the challenged election.

      . In Denham Springs /, 894 So.2d at 335, the supreme court pretermitted the constitutional issues.

      . LSA-R.S. 18:1405(G) states that an action objecting to the calling of a special election shall be instituted not later than 4:30 p.m. of the fourteenth day after the calling of the election.

      . This judgment also ordered the consolidation of the cases.

      . According to LSA-R.S. 33:9038.34(L) and LSA-Const. art. VI, § 35(B), any challenge to a bond resolution must be brought within thirty days of its publication, after which time, no one would have a cause of action to test the regularity, formality, legality, or effectiveness of the resolution.

      . For the sake of clarity, when referring to these parties in the Bond Validation Suit, we will call them the taxpayers.

      . This statute, enacted as LSA-R.S. 33:9038.4 by 2002 La. Acts, 1st Ex. Sess., No. 147, § 1, was redesignated as LSA-R.S. 33:9038.34, pursuant to 2006 La. Acts, No. 850, § 4 and the statutory revision authority of the Louisiana State Law Institute.

      . During the pendency of the Bond Validation Suit, the Development District intervened in the Election Challenge Suits as an additional defendant, and Ms. Bonneval intervened as an additional plaintiff in the two suits filed by Mr. Jones.


source: Caselaw Access Project

author: McClendon, j.

license: Public Domain

text:
    Robert A. GRACE and Janet F. Grace, Individually and on Behalf of Their Minor Child, Elizabeth Leigh Grace v. Luis CRESPO and Kimberly Crespo, Individually and on Behalf of Their Minor Child, Sherrand E. Crespo, Allstate Insurance Company, and Sentry Select Insurance Company.
    No. 2007 CA 0397.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 19, 2007.
    Writ Denied Dec. 7, 2007.

      Ronnie J. Berthelot, Baton Rouge, Counsel for Plaintiffs/Appellants Robert A. Grace, Janet F. Grace, Individually and on behalf of minor child, Elizabeth L. Grace.

      Neil C. Abramson, Charlotte J. Bell, New Orleans, Counsel for Defendant/Ap-pellee Sentry Select Insurance Company.
    Before: GAIDRY, McDONALD, and McClendon, jj.
   McClendon, j.

|?In this personal injury suit, plaintiffs, Robert A. Grace and Janet F. Grace, sued individually and on behalf of their minor daughter, Elizabeth Leigh Grace, for injuries the daughter suffered as a result of a single-car accident in Baton Rouge, Louisiana. One of the defendants, Sentry Select Insurance Company (Sentry), filed a motion for summary judgment on the issue of coverage. The trial court granted the motion, and rendered a partial summary judgment denying coverage under Sentry’s policy, including the Umbrella/Excess Liability (umbrella/excess) portion of the policy. Plaintiffs appealed. We affirm.

PERTINENT FACTS AND PROCEDURAL BACKGROUND

As part of a comprehensive plan of insurance, Sentry issued a policy with different categories of coverage for Mr. Grace’s business interests, and, to varying degrees, his family. In the common policy conditions section of the insurance plan, the various types of coverages were listed and the primary insured was named as: Grace Chenevert Motor Company DBA Southpoint Volkswagen. In addition, a note appearing below the named insured’s identification referred the insured to the individual coverage schedules for any additional named insureds.

|sEach coverage portion of the policy, for example, the automobile coverage versus the commercial garage coverage, also contained its own provisions and conditions. Specifically, the “Preface” to the umbrella/excess coverage stated as follows: “This Coverage Form provides EXCESS LIABILITY and UMBRELLA LIABILITY coverages. Various provisions in this policy restrict coverage. Please read the entire policy carefully to determine rights, duties, and what is and is not covered.”

Elizabeth, a passenger in a friend’s auto, was severely injured in a single-car accident that occurred while the friend was driving herself, Elizabeth, and two other friends, to a restaurant. The driver’s insurer paid its policy limits. Sentry’s comprehensive policy’s commercial auto coverage, which covered Elizabeth as an insured, paid the full amount available under the commercial auto’s uninsured/un-derinsured motorist (UM) section. Although Elizabeth’s damages exceeded the amounts paid and tendered, Sentry denied that additional coverage was available to the plaintiffs under any of the other coverages in the policy.

Plaintiffs filed a motion for summary judgment asserting that additional UM coverage was afforded by the policy. The trial court denied the motion. Sentry then filed its own motion for summary judgment on the same coverage issues. After a hearing, the trial court found that the plan, including the umbrella/excess policy, did not extend additional coverage to Elizabeth under the particular facts of the ease. Subsequently, the trial court signed a judgment declaring that there was no just reason to delay an appeal and that the denial of plaintiffs motion, and the grant of Sentry’s motion, were final judgments for purposes of appeal. See LSA-C.C.P. art. 1915 B. In its oral reasons for judgment, the trial court found that the remaining claim between the parties, which was based on detrimental reliance, did “not | involve the same legal theory that the cross motions for summary judgment were premised upon.” Plaintiffs appeal the grant of the partial summary judgment in favor of Sentry. Essentially, they argue that the trial court’s failure to recognize the availability of UM coverage under the umbrella/excess policy was error.

ARTICLE 1915B CERTIFICATION

Initially, we note that the grant of a partial judgment or partial summary judgment does not ordinarily constitute a final, appealable judgment. LSA-C.C.P. art. 1915 B(l). However, the trial court may certify its interlocutory judgment as a final one “after an express determination that there is no just reason for delay.” Id.

When a trial court provides reasons for its certification of the grant of a partial judgment or summary judgment as final, as did the court below, the standard of review is abuse of discretion. R.J. Messinger, Inc. v. Rosenblum, 2004-1664, p. 13 (La.3/2/05), 894 So.2d 1113, 1122. Thus, before we entertain the merits of the appeal, we must determine whether the trial court abused its discretion in certifying the partial summary judgment in favor of Sentry as final for purposes of an appeal.

The jurisprudence has long maintained a policy against multiple appeals that foster piecemeal litigation. However, of equal importance is the need to balance judicial efficiency and economy with the need for review at a time that best serves the interests of the litigants. R.J. Messinger, Inc., 2004-1664 at p. 13, 894 So.2d at 1122.

In its reasons for finding no just reason for delay and certification of the partial summary judgment, the trial court noted that the claim under the policy itself and the remaining detrimental reliance claim against Sentry and its agent were not the same. We agree.

| sThe grant of Sentry’s motion for summary judgment disposed of the only claim based on whether the policy provided coverage under the facts of the case. The remaining detrimental reliance claim against Sentry, and the agent who sold the policy, is premised on an allegation that the umbrella/excess policy did not provide the coverage the plaintiffs believed they had purchased from Sentry’s agent. With such divergent causes of action, piecemeal litigation of the similar issues would not be fostered by consideration of the coverage issue in this appeal. In addition, if the partial summary judgment in favor of Sentry was incorrect, and additional coverage did exist, the detrimental reliance claim could be mooted, saving the court and the litigants considerable time and expense. For these reasons, judicial efficiency and economy appear to weigh in favor of an appeal of the partial summary judgment in favor of Sentry. Thus, we cannot say that the trial court abused its discretion in finding that there was no just reason to delay this appeal.

APPLICABLE LEGAL PRECEPTS

An insurance contract or policy is a conventional obligation that constitutes the law between the parties to the contract, the insured and the insurer. Lambert v. Lavigne, 2004-1961, p. 3 (La.App. 1 Cir. 9/23/05), 923 So.2d 704, 706, writ denied, 2005-2283 (La.3/10/06), 925 So.2d 515. The goal of judicial interpretation of a policy’s wording is to determine the intent of the contracting parties. See LSA-C.C. art. 2045; Cadwallader v. Allstate Insurance Company, 2002-1637, p. 3 (La.6/27/03), 848 So.2d 577, 580. Absent a statutory or public policy conflict, contracting parties, including insurers, are entitled to limit their liability and to impose and enforce conditions placed on the contractual obligations. Lambert, 2004-1961 at p. 4, 923 So.2d at 706. Generally, ambiguous policy provisions are | ^construed against the insurer and in favor of coverage. Cadwallader, 2002-1637 at p. 4, 848 So.2d at 580; see LSA-C.C. arts. 2056 & 2057. However, an insurance contract or policy should not be interpreted in an unreasonable manner under the guise of contractual interpretation to enlarge or restrict the applicable provisions beyond what is reasonably understood from unambiguous terms. The rules of construction simply do not authorize a manipulation or perversion of the contract’s language to create an ambiguity where none exists. Cadwallader, 2002-1637 at p. 3, 848 So.2d at 580. A determination of the existence or absence of an ambiguity in a contract entails a question of law. Claitor v. Delahoussaye; 2002-1632, p. 11 (La.App. 1 Cir. 5/28/03), 858 So.2d 469, 478, writ denied, 2003-1820 (La.10/17/03), 855 So.2d 764.

Summary judgment shall be rendered if no genuine issue of material fact remains, and the movant is. entitled to summary judgment as a matter of law. LSA-C.C.P. art. 966 B. When parties are bound by a valid contract and ■ material facts are not in conflict, the contract’s application to the case is a matter of law and summary judgment would be appropriate. Ginger Mae Financial Services, L.L.C. v. Ameribank, FSB, 2002-2492, p. 4 (La.App. 1 Cir. 9/26/03), 857 So.2d 546, 548, writ denied, 2003-2983 (La.1/16/04), 864 So.2d 634. An appellate court reviews de novo a trial court’s decision to grant a motion for summary judgment, using the same criteria that govern the trial court’s consideration of the motion. Ginger Mae Financial Services, L.L.C., 2002-2492 atp. 3, 857 So.2d at 547.

ANALYSIS

Undeniably, Elizabeth suffered severe and tragic injuries. However, the policy language sets the parameters of the agreement between the contracting parties, as opposed to post-agreement circumstances. To receive |7UM benefits under the umbrella/excess portion of the policy, Elizabeth had to qualify as a liability insured under that coverage. See Magnon v. Collins, 98-2822, p. 5 (La.7/7/99), 739 So.2d 191, 196; Lambert, 2004-1961 at p. 4, 923 So.2d at 706. Although we agree with plaintiffs that the umbrella/excess policy was part of an overall plan of insurance, a common conditions policy provision referred the insured to the individual coverage schedules for any additional named insureds, and the clear language of each separate coverage in the plan provided for conditions and limitations of a particular coverage.

In the umbrella/excess coverage portion, the named insureds were limited by the following provision:

If you, the Named Insured, are designated in the Declarations as: ■
1. An individual, you and your spouse are insureds, but only for the conduct of a business of which you are the sole proprietor.
2. A partnership or joint venture, you and your members, your partners and their spouses are insureds, but only with respect to the conduct of your business. .3. An organization other than a partnership or joint venture, you are an insured with respect to the conduct of your business, (emphasis added).

Even assuming Elizabeth was specifically named on the declarations page of the umbrella/excess policy as a named insured, which she was not, it is undisputed that Elizabeth was not conducting business of any kind, on behalf of any business owned by her father or another named insured. On this issue, we find no ambiguity in the policy. Thus, Elizabeth does not qualify for coverage under that provision.

Plaintiffs also rely on another provision of the umbrella/excess portion of the policy to establish coverage for Elizabeth. To provide additional umbrella/excess coverage for himself and his family, Mr. Grace purchased |sthe “Designated Individual Option,” and was named in the umbrella/excess policy as such. The option expanded the “Who is an Insured” provision, and extended coverage under the following restrictive circumstances:

With respect to the ‘servicing’ or use of any ‘auto’ you own, borrow, or hire, no person or organization is an insured except:
You or
Any person or organization scheduled as a Designated Individual including their family members with respect to;
(1) Any ‘auto’ used in your business; or
(2) Personal use of any ‘auto’ you own, borrow, or hire.

Clearly, Elizabeth is a family member. However, the record provides no support for a finding that Elizabeth was using an auto in her father’s business at the time of the accident, that she or her father owned the auto involved in the accident, or that she hired the auto. Thus, category (1) is not applicable.

However, plaintiffs assert that the term “borrow” in category (2) is synonymous with the word “use.” They argue that Elizabeth, as a passenger, was using her friend’s car to get to a local restaurant. Thus, Elizabeth borrowed the auto to reach her destination, thereby fulfilling the requirement for coverage.

In Schroeder v. Board of Supervisors of Louisiana State University, 591 So.2d 342, 346 (La.1991), our supreme court found that the words of the policy providing coverage for an “ ‘auto you own, hire, or borrow1 are clear and explicit .... ” Further, the Schroeder court held that “the prevailing meaning of the term borrow in the context of automobile lending requires that the borrower acquire substantial possession, dominion, control, or the right to direct the use of the vehicle, and not merely the use of the vehicle by another person redound by chance to the benefit of a | apurported borrower.” Schroeder, 591 So.2d at 347. Although the facts here are somewhat different from those in Schroeder, the legal interpretation of the term “borrow;” as used in an insurance contract, has significance and has analogous application here. See Schroeder, 591 So.2d at 346-47.

The auto involved in the accident was owned by the family of the driver, and covered by their insurer. Elizabeth was not driving the auto; she was a guest passenger. We cannot agree that Elizabeth’s act of acceptance of a ride in a friend’s auto, occupied by other friends who were all going out to eat together, qualifies as an act of substantial possession or control of the auto involved in the single car accident. Further, the decision to stop by Elizabeth’s house prior to going to Chili’s also does not establish the necessary control. Even if the driver would have agreed to change the plans, and return Elizabeth to her home if she so requested, such a direction would not exhibit sufficient characteristics of the requisite level of dominion, control, or direction. The expansive reading suggested by plaintiffs ignores the unambiguous policy language and would lead to coverage beyond anything reasonably contemplated by the contracting parties. Thus, the particular facts herein do not support a finding that the auto was borrowed.

This holding is supported even in the absence of the Schroeder analysis. The plain, unambiguous wording of the policy cannot be manipulated to enfold the plaintiffs’ interpretation. The umbrella/excess coverage provisions clearly alerted the named insured that the policy restricted coverage in certain circumstances and that the provisions must be|inread to determine what was “not covered.” This portion of the policy did not cover all uses of a vehicle; rather, it limited coverage to a particular type of “use,” that is, use of an auto that was owned, borrowed, or hired. By creating these exclusionary categories, the word “borrow” obviously modified the term “use,” and was not meant to be interchangeable with same.

Plaintiffs also argued that Mr. Grace, as a named individual designee, could reasonably assume from the wording of the policy that he had obtained umbrella and excess coverage for himself and his family under all, or at least most, circumstances. Therefore, with various ambiguous or conflicting provisions, the policy should be construed to provide coverage. However, finding no ambiguity in the applicable provisions themselves, especially in light of the policy’s notice to insureds that the umbrella/excess policy contained provisions limiting coverage and that the provisions must be read to determine the extent of coverage, we find no merit in plaintiffs’ argument.

The final general argument is that a denial of the statutorily mandated opportunity to select UM coverage automatically reads UM coverage into the umbrella/excess coverage. Whether UM coverage was offered or validly rejected is relevant only if the claimant has qualified as a liability insured under the applicable language of the policy. Magnon, 98-2822 at pp. 5, 739 So.2d at 196; Lambert, 2004-1961 at p. 4, 923 So.2d at 706. Under the facts of this case, each coverage had its own named insureds, conditions, and restrictions. Elizabeth did not qualify as a liability insured under the provisions of the umbrella/excess coverage. See Magnon, 98-2822 at pp. 5-10, 739 So.2d at 196-199; Lambert, 2004-1961 at p. 4, 923 So.2d at 706. Thus, the question of whether UM coverage was offered or validly rejected is not relevant here.

luFor these reasons, we affirm the grant of Sentry’s motion for summary judgment denying any additional coverage. The costs of the appeal are assessed to plaintiffs, Robert A. Grace and Janet F. Grace, individually and on behalf of their minor daughter, Elizabeth Leigh Grace.

MOTION TO EXPEDITE DENIED AS MOOT; AFFIRMED.

      . A separate claim against Sentry remained in the court below, despite the grant of Sentry's motion on the issue of coverage. Thus, the grant of Sentry's motion was a partial summary judgment because it did not dismiss Sentry from the suit.

      . In a separate, unpublished companion case, Grace v. Crespo, 2007-0394 (La.App. 1 Cir. 9/14/07), plaintiffs attempted to appeal the trial court’s previous denial of their motion for summary judgment on the issue of coverage. In that matter, we found that the interlocutory judgment denying the motion could not be designated as a final judgment under LSA-C.C.P. art. 1915 B, dismissed the appeal, and denied Sentry's motion to consolidate the two appeals. However, as part of this overall appeal, we have reviewed the interlocutory judgment, and plaintiffs’ arguments.
      To the extent that plaintiffs attempted to assign error in this appeal to the trial court’s failure to find other defendants liable in the judgment denying plaintiffs' motion, we find that assignment was abandoned for failure to present argument or reference to the record. See URCA, Rule 2-12.4. In addition, we note that the plaintiffs’ motion to expedite 2007CA0397 was effectively granted by placement of this appeal on the August docket with the companion case, 2007CA0394. Thus, we deny the motion as moot.

      . Plaintiffs attempt to distinguish Schroeder, and rely instead on Stunkard v. Langlinais, 97-1006 (La.App. 3 Cir. 2/4/98), 708 So.2d 1117. While a third circuit opinion is not controlling authority for this court, we also note that the supreme court's analysis in Schroeder was not mentioned, and the driver and passenger in Stunkard were co-employees using a vehicle insured and leased or hired by their employer.


author: GAIDRY, J.

text:
    Brian VOLTOLINA v. ST. TAMMANY FIRE DISTRICT 12.
    No. 2006 CA 1498.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 19, 2007.

      Delbert G. Talley, Covington, Counsel for Plaintiff/Appellant Brian Voltolina.
    Patrick J. Berrigan, D. Rex English, Slidell, Counsel for Defendant/Appellee St. Tammany Fire District 12.
    Before: KUHN, GAIDRY, and WELCH, JJ.
   GAIDRY, J.

l2In this civil service appeal, plaintiff, Brian Voltolina, appeals his dismissal from St. Tammany Fire Protection District No. 12. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Plaintiff, Brian Voltolina, was an operator with St. Tammany Fire Protection District No. 12. On February 24, 2005, Volto-lina was given a letter notifying him of a pre-termination hearing. The letter stated that as a result of several recent incidents, it appeared that Voltolina lacked the physical or psychological ability to perform the duties required of an operator. The letter set forth the allegations against him and referred to his performance at two structure fires, one on January 8, 2005 and one on January 29, 2005:

It has been alleged that on January 8, 2005, while fighting a structure fire at 70419 Sixth Street that you allowed Captain Truett to go to the second floor with a hose pipe and not accompany him when you knew it to be your duty to be with him at all times. Further, that only after Captain Kevin Adams ordered you to go upstairs did you proceed up the stairwell. This incident is not isolated, and it is Captain Kevin Adams’ opinion that firefighters on his shift do not trust you to stay with them on entering a burning building.
Further, on January 29, 2005, at approximately 07:10 while working a structure fire at 21272 Camellia Street, that Captain Truett had to order you to enter the structure to assist Captain Stephen Krentel, who had entered the structure ahead of you and who viewed you approximately 30 feet from the front door and headed his way, but after several minutes of fighting the hose line and trying to advance it himself, that you appeared. He advised that you shouted something about it being hot inside and about a nomex and you disappeared out the front door. A few minutes later, Captain Rodick came to work with Captain Stephen Krentel. You were advised that there were children inside so every minute was very important. This obvious lack of discipline and disobeying of orders has an effect, not only upon yourself, but upon the entire rank and file of the Fire District.

lsAfter the pre-termination hearing, Vol-tolina was terminated by Fire Chief Darrel Guillot. At Voltolina’s request, a hearing was then held before the Civil Service Board, and the Board upheld the termination, finding that Chief Guillot acted in good faith and for just cause in making the decision to terminate Voltolina. Voltolina appealed his termination to the 22nd Judicial District Court, and that court agreed with the Civil Service Board that Voltolina’s actions were just cause for termination. The district court also found that the Civil Service Board acted in good faith in upholding Voltolina’s termination. Voltolina appealed the district court judgment, alleging that the judge erred in finding that just cause existed for his termination, that the Civil Service Board acted in good faith, that there was no violation of due process or the Fire Service Employee’s Bill of Rights, and that the punishment was commensurate with the offense.

DISCUSSION

Louisiana Revised Statutes 33:2560 governs corrective and disciplinary action for maintaining standards of service for fire and police departments. It provides that the appointing authority can remove any employee from service, or take such disciplinary action as is warranted by the circumstances, for the following reasons:

(1) Unwillingness or failure to perform the duties of his position in a satisfactory manner.
(2) The deliberate omission of any act that it was his duty to perform.
(3) The commission or omission of any act to the prejudice of the departmental service or contrary to the public interest or policy.

|4An employee who has been discharged and feels that his discharge was not for just cause may request a hearing and investigation by the Civil Service Board to determine the reasonableness of the action. La. R.S. 33:2561(A). After its investigation, the board may either affirm the appointing authority’s action or, if it finds that the action was not taken in good faith for just cause, order reinstatement or reemployment. La. R.S. 33:2561(0). The Civil Service Board’s decision may be appealed to the district court for a determination of whether the board’s decision was made in good faith for cause under the provisions of La. R.S. 33:2531-2569. La. R.S. 33:2561(E).

After reviewing the record, it is clear that Voltolina’s termination was warranted under La. R.S. 33:2560(1), (2), and (3), and we see no evidence that the Civil Service Board acted in bad faith in upholding his termination under these circumstances.

In his next assignment of error, Voltolina argues that he was denied due process because the fire department maintained a confidential file on him, in violation of La. R.S. 33:2183. Louisiana Revised Statutes 33:2183 is a part of the “Fire Employee’s Rights” subpart, which is comprised of La. R.S. 33:2181-86. Section 2183 states that:

A. No fire employee shall have any comment adverse to his or her interest entered in his or her personnel file or any other file used for any personnel purposes by his employer without the fire employee having first read and signed the instrument containing the adverse comment indicating that he or she is aware of such comment, except that such entry may be made if, after reading such instrument, the fire employee refuses to sign it....
B. A fire employee shall have thirty days within which to file a written response to any adverse comment entered in his or her personnel file. Such written response shall be attached to and shall accompany the adverse comment.

lsThe evidence in the record suggests that there was a violation of La. R.S. 33:2183 in Voltolina’s case. Jamie Truett, Voltolina’s former supervisor, sent a letter to Chief Guillot in which he requested a fit-for-duty evaluation for Voltolina and expressed his concerns that Voltolina was unable, either physically or mentally, to perform satisfactorily as a fireman. In the letter, Truett outlined the various incidents involving Voltolina which prompted his concerns. This letter, dated February 1, 2005, was marked “CONFIDENTIAL” and was not shown to Voltolina so that he could sign it and respond to it before it was placed in a file by Chief Guillot.

Despite this violation of La. R.S. 33:2183, we disagree with Voltolina’s conclusion that he was denied due process in the termination proceedings. While the “Fire Employee’s Rights” subpart establishes certain rights, there are no remedies established for violations of its provisions. If the legislature had intended for there to be a remedy, it certainly could have provided one. In fact, a different provision of the “Fire Employee’s Rights” than the one at issue here, La. R.S. 33:2181, was amended this year to provide a penalty for failure to comply with the provision. Under the amended statute, any adverse action taken against a fire employee would be absolutely null if his rights under the statute were not upheld. 2007 La. Session Law Serv. Act 258. Notably, neither La. R.S. 33:2183, nor any other provision of the “Fire Employee’s Rights,” was amended when La. R.S. 33:2181 was. Voltolina provides no support, and we can find none, for his conclusion that due process in a termination proceeding requires compliance with La. R.S. 33:2183. Furthermore, Voltolina’s due process rights were satisfied by the February 24, 2005 letter and the pre-termination hearing, as he was given notice of the charges against him, an explanation of his employer’s evidence, and an opportunity | fito present his side of the story. See Cleveland Board of Education v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985). Thus, this assignment of error is without merit.

Voltolina’s final assignment of error is that the punishment in this case was out of proportion to the offense. Louisiana Revised Statutes 33:2560 provides for removal of an employee from service, or other appropriate disciplinary action against an employee, for actions such as Voltolina’s. Voltolina argues that a lesser disciplinary action than termination would be appropriate for his actions and omissions. We disagree. Voltolina’s actions in leaving his partner inside a fire alone or failing to follow his partner into a fire not only endangered the lives of those firemen, but also affected the esprit de corps of the fire department. Testimony in the record established that other firemen were hesitant to work a fire with Voltolina for fear they would be left alone. Under these circumstances, we simply cannot agree with Voltolina that termination was inappropriate.

DECREE

The judgment upholding Voltolina’s termination is affirmed. Costs of this appeal are assessed to appellant, Brian Voltolina.

AFFIRMED.

      . According to Joseph Mitternight, Chairman of the Board of Commissioners of Fire District 12, the Board of Commissioners delegated the authority to hire and fire to Chief Guillot because the Board was not involved in the day-to-day operations of the department.


author: McDonald, j. McCLENDON, J.,

text:
    Don L. NELSON and Deslyn Nelson v. Cedrick MERRICK, Bearden Sandwich Company, D/B/A Southern Bell Sandwich Company and Scottsdale Insurance Company.
    No. 2006 CA 2381.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 19, 2007.

      Richard J. Dodson, Kenneth H. Hooks, III, Baton Rouge, for Don L. Nelson and Deslyn Nelson.
    Andrew A. Braun, David B. Wilson, New Orleans, for Defendant/Appellant National Union Fire Insurance Company of Pittsburgh. PA.
    Before: GAIDRY, McDONALD and McClendon, jj.
   McDonald, j.

I ¡.This is an appeal of the confirmation of a default judgment rendered against an excess insurer in the Nineteenth Judicial District Court. For the following reasons, we reverse the judgment of the trial court.

Plaintiff, Don L. Nelson, was involved in an automobile accident in July 2004 when the vehicle that he was driving was struck from the rear by a vehicle operated by Cedric Merrick. In April 2005, Nelson filed suit against Merrick, his employer Beardon Sandwich Co., Inc. d/b/a Southern Belle Sandwich Co. and Southern Belle’s insurer, Scottsdale Insurance Company.

In August 15, 2006, a first amended petition was filed adding National Union Fire Insurance Company of Pittsburgh, PA (National Union) as a defendant. Service was requested pursuant to the Louisiana Direct Action Statute through the Secretary of State. According to the motion and order for preliminary default filed October 11, 2006, service of the first amended petition was made on August 31, 2006. No answer was filed into the record on behalf of National Union.

On Monday, October 16, 2006 a judge in the Nineteenth Judicial District, other than the one to whom this matter had been randomly allotted or the duty judge, heard the confirmation of default at plaintiffs’ request. Don Nelson and his wife, Deslyn, who is also a plaintiff in this matter, testified. Additional evidence was offered and admitted, including a copy of two letters from attorneys. One letter, dated April 12, 2006 informed counsel for plaintiffs that there was an umbrella policy providing $1 million dollars in excess coverage and the second, dated August 17, 2006 indicating that “National Union” was the only information available at that time regarding the excess insurer, but that as more information was received it would be forwarded. The insurance policy was not admitted into evidence.

laOn October 19, 2006 judgment against National Union Fire Insurance Company of Pittsburgh PA was signed awarding Don L. Nelson and Deslyn Nelson $2,000,000.00, together with judicial interest from the date of demand until paid, and all costs of the proceedings. A suspen-sive appeal was filed alleging three assignments of error: (1) plaintiffs failed to introduce the insurance policy at issue; (2) plaintiffs failed to produce sufficient evidence to establish vicarious liability on the part of the insured, and thus coverage under the policy; and (3) plaintiffs failed to produce sufficient evidence on the issue of damages.

It is well established that for a plaintiff to obtain a default judgment, he must establish the elements of a prima facie case with competent evidence, as fully as though each of the allegations of the petition were denied by the defendant. Thibodeaux v. Burton, 538 So.2d 1001, 1004 (La.1989). The plaintiff must present competent evidence that convinces the court that it is more probable than not that he would prevail in a trial on the merits. Id.

When reviewing a default judgment, an appellate court is restricted to a determination of sufficiency of the evidence offered in support of the judgment. Bates v. Legion Indem. Co., 2001-0552 (La.App. 1st. Cir.2/27/2002), 818 So.2d 176, 178. A plaintiff who knows of a writing that is the principal basis for his claims must produce it when it is the best evidence of the facts at issue. Ascension Builders, Inc. v. Jumonville, 262 La. 519, 263 So.2d 875, 878 (1972). The insurance policy allegedly issued by National Union is the foundation for this cause of action and introduction of the policy is required in order to establish the prima facie case necessary to obtain a valid default judgment. See Grevemberg v. G.P.A. Strategic Forecasting Group, Inc., 2006-0766 (La. App. 1st Cir.2/9/07) 959 So.2d 914, 919.

| ¿Plaintiff is correct in noting that in Succession of Rock v. Allstate Life Insurance Co., 340 So.2d 1325 (La.1976) the supreme court found that all of the salient contractual provisions upon which plaintiffs suit was based were found in requests for admissions directed to insurer, Allstate, that Allstate failed to timely deny. However, we do not agree with plaintiffs contention that the crux of the supreme court’s teaching in Rock was that in lieu of the production of the insurance policy itself, other evidence may be introduced to prove the existence of the insurance contract. There are several important factors that make Rock distinguishable from the matter before us. One is the fact that in Rock the defendant seeking to obtain reversal of the default judgment was bound by the legal precept that a judgment reciting that the evidence is sufficient creates a presumption that the evidence was sufficient, which must be overcome by the defendant. The presumption that the default judgment was rendered upon sufficient evidence and is correct does not apply where the testimony is transcribed and is contained in the record. Bates, 818 So.2d at 179. In such a case, the reviewing court is able to determine from the record whether the evidence on which the judgment is based was sufficient and competent. Id. In this case, the evidence upon which the judgment was based is in the record.

Further, jurisprudence has consistently held that competent evidence sufficient to support a default judgment under an insurance policy is the insurance contract itself. Holland v. Aetna Life & Cas. Ins. Co. (La.App. 1st Cir.1980), 385 So.2d 316, 317; Johnston v. Broussard 41,477 (La.App. 2nd Cir.9/20/06), 940 So.2d 79, 82. The jurisprudential exception is that when the plaintiff requests admissions of contractual coverage or production of the policy, the defendant’s failure to comply may be construed as supplying the missing proof. Id.

| ,/We find that failure to introduce the insurance policy at issue requires reversal of the default judgment entered in this matter, and do not address the remaining assignments of error. The judgment appealed is reversed. Costs are assessed to Don L. Nelson and Deslyn Nelson.

REVERSED.

McCLENDON, J., agrees and assigns additional reasons.

McCLENDON, J.,

agrees and assigns additional reasons.

hi agree that the proof in this record is insufficient to confirm the default judgment. In this case, the two letters from counsel representing defendants, other than the excess insurer, clearly do not qualify as judicial admissions by said excess insurer on the issue of its coverage. Thus, these letters do not fall within the Rock jurisprudential exception.


author: MCDONALD, J.

text:
    S.J.G. v. A.A.G.
    No. 2007 CJ 0625.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 19, 2007.

      Melanie Newkome Jones, Baton Rouge, for Plaintiff/Appellant S.J.G. (Mother).
    D. Blayne Honeycutt, Denham Springs, for Defendant/Appellee A.A.G. (Father).
    Before: GAIDRY, MCDONALD and MCCLENDON, JJ.
   MCDONALD, J.

| p,This is a child custody case wherein one parent sought to terminate the parental rights of the other parent after lengthy litigation between them. The trial court granted the termination. We vacate the judgment in part, affirm the judgment in part, and remand, finding that there are no circumstances under which one parent can institute a proceeding to terminate the parental rights of the other parent.

A.A.G., (the father herein) and S.J.G. (the mother herein) were married on May 23, 1992. Their daughter, K.M.G., was born on September 12, 1991, and their son, N.A.G., was born on January 31, 1994.

Some time thereafter, the parties separated and on June 14, 1999, A.A.G. and S.J.G. entered into a stipulated interim judgment that gave them joint custody of the children as co-domiciliary parents and provided that A.A.G. pay S.J.G. $100.00 monthly child support. Injunctions were issued prohibiting each party from harassing the other or going to the other’s home or workplace. Further, the judgment appointed psychologist Dr. J. Steven Welsh to perform an evaluation of the parents and the children.

On July 28, 2000, S.J.G. filed a petition for divorce, asking for sole custody with reasonable visitation to A.A.G. Dr. Welsh’s 1999 evaluation was attached to the petition. In a report dated October 20, 1999, he recommended: joint custody, with domiciliary custody to A.A.G. and frequent, liberal non-supervised visitation to S.J.G.; that the parties attend [¡¡counseling; that S.J.G. consider therapy for possible substance abuse; and that A.A.G. consider intervention for probable alcohol abuse.

On October 30, 2000, the parties entered into a consent judgment giving temporary custody to S.J.G.; giving alternate weekend visitation to A.A.G.; and assessing A.A.G. $500.00 monthly temporary child support payments to S.J.G. A judgment dated March 27, 2001 granted a divorce and reduced the monthly child support payment to $480.00.

A.A.G. filed a rule to change custody on November 19, 2001, asserting that the children were tardy or missed school on numerous occasions because S.J.G. did not wake them and that both children were in danger of failing in school, that S.J.G. left the children alone with her new husband while she traveled, and that S.J.G. had left the children to go out drinking. A.A.G. asserted that he had re-enrolled the children in school, he had stable employment and was able to provide for the children; but that S.J.G. had no place to live and had a history of depression and prescription drug abuse. He further asserted that S.J.G. was arrested for DWI while the children were living with her and that she had failed to show up for her court date. A.A.G. asked for sole custody of the children, with reasonable supervised visitation to S.J.G., and asked for a reduction or termination of child support.

A.A.G. was awarded temporary sole custody of the children on November 19, 2001, and a hearing was set. On December 21, 2001, a stipulated judgment gave the parties joint custody, named A.A.G. as the primary custodial parent with physical custody of the children during the school year, and granted S.J.G. physical custody on alternate weekends during the school year. Child support payments to S.J.G. by A.A.G. were terminated, retroactive to November 1, 2001 (the date the children became ^domiciled with A.A.G.), and the parties reserved the right to litigate child support.

A.A.G. filed a rule to establish child support on October 7, 2002, and the parties thereafter entered into a consent judgment providing that S.J.G. pay A.A.G. $498.00 per month child support. Then, on February 21, 2003, A.A.G. filed a rule to accumulate arrears and make arrears executory, asserting that S.J.G. owed past due child support payments of $2,226.06. A.A.G. asked that S.J.G. be found in contempt of court and sentenced to jail time. On April 4, 2003, A.A.G. filed a rule to suspend SJ.G.’s overnight visitations, asserting that the children had sustained emotional problems as a result of S.J.G.’s conduct, that S.J.G. had a drug abuse problem and had been arrested again, and S.J.G. was attempting to have male guests overnight with the children present.

On April 24, 2003, after a hearing, the parties entered into a consent judgment providing that S.J.G. was past due on child support to A.A.G. in the amount of $1,800.00 through April 15, 2003, that she was in contempt of court, and that if the child support payments were made current by June 30, 2003, she would be purged of the contempt of court. The judgment also ordered the parties not to have overnight guests when the minor children were with them.

A.A.G. filed another rule to accumulate arrears for past due child support and for contempt of court on May 11, 2004. He asserted that S.J.G. was in arrears for $6,474.00, that she should be jailed for contempt of court, and that she was in contempt of court for having male guests overnight with the children present.

S.J.G. filed a motion for continuance on August 5, 2004, asserting that she had to prepare for a criminal proceeding and could not properly prepare |5for the child support hearing. The trial court granted a two-month continuance.

After a hearing, the trial court rendered judgment on October 8, 2004, finding S.J.G. in contempt and sentencing her to 90 days in jail for failure to pay child support; ordering her to pay child support in the amount of $498.00 monthly and an additional $200.00 per month until her ar-rearages were paid; ordering that S.J.G. pay A.A.G. $750.00 in attorney’s fees plus court costs; ordering that A.A.G. produce the children before the court on November 15, 2004; and finding that S.J.G. was in arrearages for $6,474.00 for child support and that the amount was executory.

Thereafter, on October 20, 2004, S.J.G. filed a rule to show cause why child support should not be decreased and for contempt of court, asserting there had been a change in circumstances and her income had decreased substantially, and that further, A.A.G. had failed to provide the children to her on numerous occasions for visitation. S.J.G. asked that A.A.G. be punished for contempt and that she be given additional visitation with the children. Further, she asserted that A.A.G. had failed to provide her with information regarding the children’s health and school, and that he interfered with her telephone contact with the children.

By stipulated judgment dated February 14, 2005, the court ruled that custody of the children remained with A.A.G. and that for the next six months S.J.G. would have only alternate weekend visitation, ordered that S.J.G. immediately return the children to A.A.G., and ordered that S.J.G.’s child support payments be reduced to $275.00 per month.

On July 5, 2006, A.A.G. filed another rule to accumulate arrearages for past due child support, and for contempt of court, as well as a petition for sole custody and/or termination of parental rights. A.A.G. asserted that |fiS.J.G. failed to make numerous child support payments, that she was in arrears in the amount of $12,991.00, and that she had violated an order not to have male guests overnight when the children were present. A.A.G. asked that S.J.G. be held in contempt and sentenced to jail; that child support payments of $12,991.00 be made executory; and further, asserted that S.J.G. had failed to pay child support in excess of 12 months, had failed to exercise visitation since the rendition of the stipulated judgment, had male and female overnight guests, and had been arrested for DWI numerous times. He asked that he be awarded sole custody, or alternatively, that SJ.G.’s parental rights be terminated.

Thereafter, A.A.G. filed a motion and order for civil warrant asserting that pursuant to judgment the parties were to divide the summer vacation and A.A.G. was to have physical custody of the children during the school year, but that nonetheless S.J.G. kept K.M.G. the entire summer and refused to return her, and he asked that a civil warrant be issued to law enforcement personnel to accompany him to retrieve K.M.G. The civil warrant was granted on August 18, 2006.

After a hearing, the trial court ruled on September 5, 2006, finding S.J.G. in contempt of court for failure to pay child support and sentencing her to 90 days in jail, finding her in arrears in the amount of $13,816.00 plus interest and making that amount executory, finding S.J.G. in contempt for her actions during trial and sentencing S.J.G. to an additional 90 days in jail, and ruling that S.J.G.’s parental rights were terminated for failure to pay child support. S.J.G. filed a motion for new trial, which was denied.

On September 19, 2006, the trial court signed an order commuting S-J.G.’s misdemeanor sentence to probation, ruling that she had partially purged herself of the contempt by paying all financial obligations to A.A.G., |7and, with consent of counsel, the trial court ordered that S.J.G. be released from jail and placed on two-years unsupervised bench probation.

S.J.G. is appealing the September 5, 2006 judgment that terminated her parental rights and found her in contempt of court. She makes the following assignments of error:

1. The Trial Court erred in terminating Appellant’s parental rights as there is no basis in the law for such a penalty and no evidence was presented that justified this punishment.
2. The Trial Court erred in failing to grant the Appellant’s request for continuance, particularly [because] the hearing involved one of the most drastic consequences: termination of appellant’s parental rights and incarceration.
3. The Trial Court erred in imposing jail time to appellant for non-payment of child support without allowing for any ability for appellant to purge herself by payment of said sums.
4. The Trial Court erred in imposing jail time to appellant for contempt of court as appellant’s actions, while frustrating to the court, did not arise to the level [of] contemptuousness and complete disruption of the court proceeding to justify such a drastic punishment.

ASSIGNMENT OF ERROR NO. 1

S.J.G. asserts that the trial court erred in terminating her parental rights. She is correct. Children’s Code article 1004 provides for the termination of parental rights:

A. At any time, including in any hearing in a child in need of care proceeding, the court on its own motion may order the filing of a petition on any ground authorized by Article 1015.
B. Counsel appointed for the child pursuant to Article 607 may petition for the termination of parental rights of the parent of the child if the petition alleges a ground authorized by Article 1015(4), (5), or (6) and, although eighteen months have elapsed since the date of the child’s adjudication as a child in need of care, no petition has been filed by the district attorney or the department.
C. The district attorney may petition for the termination of parental rights of the parent of the child on any ground authorized by Article 1015.
1J). The department may petition for the termination of parental rights of the parent of the child when any of the following apply:
(1) The child has been subjected to abuse or neglect after the child is returned to the parent’s care and custody while under department supervision, and termination is authorized by Article 1015(3)0).
(2) The parent’s parental rights to one or more of the child’s siblings have been terminated due to neglect or abuse and prior attempts to rehabilitate the parent have been unsuccessful, and termination is authorized by Article 1015(3)(k).
(3) The child has been abandoned and termination is authorized by Article 1015(4).
(4) The child has been placed in the custody of the state and the termination is authorized by Article 1015(5).
(5) The child is in foster care because the parent is incarcerated the termination is authorized by Article 1015(6).
E. When termination is authorized by Article 1015, other than on the grounds specified by Paragraph D of this Article, by special appointment, the district attorney may designate counsel for the department as a special assistant authorized to act in his stead in all such termination actions or in a particular case.
F. By special appointment for a particular ease, the court or the district attorney may designate private counsel authorized to petition for the termination of parental rights of the parent of the child on the ground of abandonment authorized by Article 1015(4).
G. Foster parents who intend to adopt the child may petition for the termination of parental rights of the foster child’s parents when, in accordance with Article 702(D), adoption is the permanent plan for the child, the child has been in state custody under the foster parent’s care for seventeen of the last twenty-two months, and the department has failed to petition for such termination.
H. When termination is authorized by Article 1015(1) or (2) and no petition is filed to terminate the parental rights of the surviving parent pursuant to Paragraph A, C, or E of this Article after a written request to file such action is made to the district attorney by any interested person and no petition is filed within sixty days by the district attorney, that person may file suit to terminate the parental rights of the surviving parent.

| ^Louisiana Children’s Code Article 1015(4) permits termination of parental rights where a parent has abandoned a child. Louisiana Children’s Code article 1015(4)(b) provides:

The grounds for termination of parental rights are:
(4) Abandonment of the child by placing him in the physical custody of a nonpar-ent, or the department, or by otherwise leaving him under circumstances demonstrating an intention to permanently avoid parental responsibility by any of the following:
(b) As of the time the petition is filed, the parent has failed to provide significant contributions to the child’s care and support for any period of six consecutive months.

At the August 18, 2006 hearing, the trial court found that S.J.G. had made no significant contributions to her children’s care and support since the previous court judgment of November 15, 2004. Under La. Ch.C. art. 1015(4)(b) this constitutes abandonment by the parent, and the trial court terminated S.J.G.’s parental rights for this reason.

The Louisiana Children’s Code, however, makes abundantly clear that only the State or an authorized State official may institute termination proceedings. La. Ch.C. art. 1004. There is no private right of action to terminate another parent’s parental rights, and there are no circumstances under which one parent may file a petition to terminate the parental rights of another parent. Mouret v. Godeaux, 2004-496 (La.App. 3 Cir. 11/10/04), 886 So.2d 1217, 1220; see State ex. rel D.M., 2000-0451 (La.App. 4 Cir. 3/14/01), 785 So.2d 857, 858; see also In re Dantzler, 99-0625 (La.App. 1 Cir.6/25/99), 739 So.2d 907, writ denied, 99-2228 (La.8/2/99), 747 So.2d 38.

Furthermore, these procedural requirements are not flexible. Courts have widely acknowledged the sanctity of parental rights, stating that “[pjaren-tal rights to the care, custody, and management of children is a fundamental liberty interest warranting great deference and vigilant protection under the law.” State ex rel. A.C.H., 02-1014, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 791, 794, writ denied, 03-566 (Lafi/14/03),in 839 So.2d 50 (quotation omitted). Thus, termination of parental rights is “one of the most drastic actions the State can take against its citizens.” State ex rel. J.A., 99-2905, p. 9 (La.1/12/00), 752 So.2d 806, 811. As a result, the Louisiana legislature “has imposed strict procedural and evidentiary requirements that must be met before the issuance of a judgment terminating parental rights.” State ex rel. E.C., 99-629, p. 5 (La.App. 1 Cir. 6/25/99), 739 So.2d 318, 321; A.C.H., 846 So.2d 791.

Mouret v. Godeaux, 886 So.2d at 1220.

In this case, the trial court did not follow the proper procedures for termination under La. Ch. C. art. 1004. The State did not petition for termination, nor did the court on its own motion order the filing of such a petition. Finally, neither the court nor the District Attorney authorized a special private counsel to bring such a petition. See Mouret v. Godeaux, 886 So.2d at 1220.

Rather, the court based its termination of SJ.G.’s parental rights on a petition brought by A.A.G. This contravenes the strict procedural requirements of termination proceedings, implemented by the legislature to safeguard parental rights. See Mouret v. Godeaux, 886 So.2d at 1220.

Thus, the law is clear that A.A.G. has no right of action to terminate the parental rights of S.J.G. See La. Ch.C. art. 1004. The lack of a right of action to initiate suit may be noticed by the appellate court on its own motion. La. C.C.P. art. 927. A.A.G.’s remedy is to seek a modification of custody. See State ex rel DM., 785 So.2d at 859.

Thus, that portion of the judgment terminating the parental rights of S.J.G. is vacated. A.A.G. filed a petition for sole custody, and/or a petition to terminate parental rights, thus we remand the case to the trial court for further proceedings in the custody dispute. In the interim, in accord with the previous stipulated judgment in this case, dated February 14, 2005, custody Inof the children remains with A.A.G., S.J.G. has alternate weekend visitation, and SJ.G.’s child support payments remain at $275.00 per month.

ASSIGNMENT OF ERROR NO. 2

S.J.G. asserts that the trial court erred in denying her request for a continuance. After careful consideration of the record, and finding that the trial court had already granted S.J.G. a two-month continuance in this case, we find no abuse of discretion by the trial court in its denial of the continuance.

ASSIGNMENT OF ERROR NO. 3

S.J.G. asserts that the trial court erred in imposing jail time for nonpayment of child support without allowing appellant to purge herself by payment of said sums. The record shows that S.J.G. had numerous opportunities to pay her child support during the course of the proceedings. We find no abuse of discretion by the trial court in this matter.

ASSIGNMENT OF ERROR NO. 4

S.J.G. asserts that the trial court erred in imposing jail time for contempt of court because her actions “while frustrating to the court, did not arise to the level [of] contemptuousness and complete disruption of the court proceeding to justify such a drastic punishment.” A review of the record shows that S.J.G. interrupted the hearing numerous times. We find no abuse of discretion by the trial court in this matter.

DECREE

Therefore, for the foregoing reasons, that portion of the trial court judgment that terminated S.J.G.’s parental rights is vacated and in all other aspects the h2trial court judgment is affirmed. The previous stipulated child custody judgment dated February 14, 2005 remains in effect and the case is remanded to the trial court for further proceedings in the custody dispute. Costs are assessed against A.A.G.

VACATED IN PART, AFFIRMED IN PART, AND REMANDED.

MCCLENDON, J., concurs with result reached by the majority.

      . Pursuant to Rules 5-1 and 5-2 of the Uniform Rules-Courts of Appeal, the initials of the parties involved in this matter will be used instead of their names to protect the privacy of the minor children.