author: GAIDRY, J.

text:
    Dr. Judith FISHBEIN, M.D., et al. v. STATE of Louisiana through LSU HEALTH SCIENCES CENTER, et al.
    No. 2006 CA 0549.
    Court of Appeal of Louisiana, First Circuit.
    March 9, 2007.
    Writ Denied June 22, 2007.

      John Dale Powers, Douglas M. Chapo-ton, Baton Rouge, Counsel for Plaintiff/Appellant Judith Fishbein, M.D.

      W. Shelby McKenzie, Harry J. Philips, Jr., Matthew L. Mullins, Baton Rouge, Counsel for Defendant/Appellant Board of Supervisors of Louisiana State University and Agricultural and Mechanical College.
    John L. Stone, III, Baton Rouge, Counsel for Defendant/Appellant Teachers’ Retirement System of Louisiana.
    Before: KUHN, GAIDRY, and WELCH, JJ.
   GAIDRY, J.

|2The Board of Supervisors of Louisiana State University and Agricultural and Mechanical College (LSU) and the Teachers’ Retirement System of Louisiana (TRSL) appeal a judgment of mandatory injunction in favor of the plaintiff-appellee, Judith Fishbein, M.D. For the following reasons, we affirm the trial court’s judgment, but remand this matter to the trial court for a final evidentiary hearing and supplementation of its judgment.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

The facts underlying Dr. Fishbein’s cause of action and its procedural history are thoroughly set forth in this court’s prior opinion in this matter, Fishbein v. State ex. rel. La. State Univ. Health Sciences Ctr., 03-0765, pp. 2-6 (La.App. 1st Cir.9/8/04), 887 So.2d 56, 59-61, writ granted, 04-2482 (La.12/17/04), 888 So.2d 850, and the supreme court’s subsequent opinion, Fishbein v. State ex. rel. La. State Univ. Health Sciences Ctr., 04-2482, pp. 1-6 (La.4/12/05), 898 So.2d 1260, 1262-65.

To briefly recapitulate the pertinent facts, Dr. Fishbein, a pediatrician, was employed as an instructor in her field at the Louisiana State University Health Sciences Center from 1970 until she retired in 2001. She became a member of TRSL in 1979, and in 1980 she began receiving a “supplemental salary” in addition to her base salary. However, her employer, LSU, never withheld employee retirement contributions from her supplemental salary and never made employer retirement contributions based upon the supplemental salary. She filed suit on August 7, 2000, seeking a declaratory judgment that her supplemental salary formed part of her “earnable compensation” for retirement purposes and a mandatory injunction that LSU authorize the correction and proper funding of her retirement account.

|sThe supreme court affirmed this court’s ruling that Dr. Fishbein’s supplemental salary constituted “earnable compensation” within the meaning of La. R.S. 11:701(10) and was thus subject to employee retirement withholding and employer retirement contributions. However, the supreme court held that Dr. Fishbein’s claims for recovery of additional retirement contributions that LSU should have paid prior to August 7, 1997 (over three years prior to suit) were prescribed. Thus, since Dr. Fishbein entered the Deferred Retirement Option Plan (DROP) program on July 1, 1998, she was entitled to correction of only her “earnings or salary” which accrued between August 7, 1997 and July 1, 1998, in the form of a “purchase of service credit,” pursuant to La. R.S. 11:888(C)(2).

The supreme court remanded the case to the trial court with the instruction to appoint an actuary to determine the amount of the purchase of service credit payable under La. R.S. 11:158. The trial court was also instructed to hold an evi-dentiary hearing to determine the respective amounts payable by both LSU and Dr. Fishbein to TRSL under La. R.S. 11:888(0(2), and to consider Dr. Fish-bein’s remaining claim for injunctive relief.

The trial court’s hearing on remand was held on October 21, 2005. The parties had previously agreed to the appointment of Charles G. Hall as actuary, and Mr. Hall was the only witness called to testify. He had previously prepared two alternate actuarial reports, dated August 11, 2005 and September 21, 2005, which were also introduced into evidence. At the [ ¿conclusion of the hearing, the trial court ruled in favor of Dr. Fishbein’s position, as set forth in the second report. The trial court’s judgment, ordering payment to TRSL in the respective amounts described in the September 21, 2005 report, was signed on December 15, 2005.

LSU now appeals. As an interested party whose rights are affected by the judgment at issue, TRSL also appeals the judgment under the authority of La. C.C.P. art.2086.

ASSIGNMENTS OF ERROR

LSU contends the trial court’s judgment is grounded in the following errors:

1. The trial court erred when it failed to calculate the amount due [TRSL] by [LSU] in compliance with La. R.S. 11:701(5) by allowing appellee’s compensation to increase by more than ten percent over the preceding twelve[-]month period, as urged by both LSU and TRSL.
2. The trial court erred by requiring [LSU] to pay more than fifty percent of the amount due [TRSL] when it failed to calculate the amount due by [LSU] in compliance with La. R.S. 11:888.
3.The trial court erred in excluding portions of the testimony of Charles G. Hall [that] would have explained his calculations of the actuarial amounts due [from LSU] and Dr. Fishbein under La. R.S. 11:701 and 11:888.

TRSL joins LSU in urging the first assignment of error above, and additionally assigns the following errors by the trial court:

The trial court erred in adopting the calculations contained in Charles Hall’s letter of September 21, 2005, rather than those contained in Mr. Hall’s letter of August 11, 2005.
The trial court erred in failing to include in its [j]udgment additional sums due TRSL since the dates specified in the letters of Charles Hall.

ANALYSIS

The pertinent provisions of La. R.S. 11:701(5) at the heart of the present controversy provide as follows:

|B(5)(a) “Average compensation” subject to the other provisions of this Paragraph, means the average eamable compensation of a teacher for the three highest successive years of employment, or the highest three successive joined years of employment where interruption of service occurred. The computation of such average compensation shall be in accordance with the following guidelines:
(i) The amount for the first through the twelfth month shall not exceed the compensation for the immediately preceding twelve months by more than ten percent.
(ii) The amount for the thirteenth through the twenty-fourth month shall not exceed the lesser of the maximum allowable compensation amount or the actual compensation amount for the first through twelfth month by more than ten percent.
(iii) The amount for the twenty-fifth through the thirty-sixth month shall not exceed the lesser of the maximum allowable compensation amount or the actual compensation amount for the thirteenth through twenty-fourth month by more than ten percent.
(b) The thirty-six months used for average compensation cannot cover a period when the member receives more than three years of service credit.
(c)(i) The limitations on the computation of average compensation in this Paragraph shall not apply to any of the twelve-month periods where compensation increased by more than ten percent over the previous twelve-month period solely because of an increase in compensation by legislative act, by city/parish systemwide salary increase, or by a sys-temwide increase at a college or university.
(Emphasis supplied.)

The parties concede that Dr. Fishbein’s three highest successive years of employment were her last three years of employment prior to the date she entered the DROP program.

Louisiana Revised Statutes 11:888 provides, in pertinent part:

A. Each employer shall transmit, monthly, a contributions report setting forth necessary salary and deduction information, provided that the board of trustees may, in its discretion, extend the time for submission.
|fiC.(l) If any reporting agency submits a contributions report which is in error as to the earnings or salary of a member or the amount of time worked by a member and such error results in the member receiving less service credit or paying less employee contributions, said error may be corrected by the reporting agency for a period of up to three years after the contributions report was due the retirement system by the payment of the correct employee and employer contributions plus legal interest compounded annually from the date of error.
(2) Any corrections as to earnings or salary made more than three years after a contributions report is due the retirement system shall be a purchase of service credit under the provisions of R.S. 11:158. The employer institution, in its discretion, may pay not more than fifty percent of the purchase price. However, if it makes such payment, it shall then make such payment, in the same percentage, with respect to all other purchases under this Paragraph, provided, however, that if the error is the total fault of the employer, the employer shall pay the total purchase cost. (Emphasis supplied.)

We initially address Dr. Fishbein’s contention that the issues of application of La. R.S. 11:701(5) and La. R.S. 11:888 constitute affirmative defenses which were not previously pleaded by LSU nor raised prior to either the remand hearing or this appeal.

Whether an issue is an affirmative defense is a question of fact, determined by the circumstances of the individual case. Bienvenu v. Allstate Ins. Co., 01-2248, p. 5 (La.App. 4th Cir.5/8/02), 819 So.2d 1077, 1080. By definition, an affirmative defense raises a new matter or issue that will defeat the plaintiffs claim on the merits, even assuming that claim is valid and that the allegations of the petition are true. See Webster v. Rushing, 316 So.2d 111, 114 (La.1975); Buck’s Run Enterprises, Inc. v. Mapp Const., Inc., 99-3054, p. 4 (La.App. 1st Cir.2/16/01), 808 So.2d 428, 431. Implicit in that definition is the conclusion that a defendant is not required to raise an issue as an affirmative defense if it does not raise a “new matter.” Bienvenu, 01-2248 at p. 5, 819 So.2d at 1080. The purpose of pleading a special ^defense is to give fair and adequate notice of the nature of the defense so that the plaintiff is not surprised. Webster, 316 So.2d at 114.

The definition of “average compensation” in La. R.S. ll:701(5)(a) establishes the method of computation of a member’s retirement benefits under the statutory-scheme, and La. R.S. 11:888 directly addresses the mechanism of correction of “error as to the earnings or salary of a [TRSL] member” under the same scheme. The intrinsic nature of this scheme is not a “new matter” based upon factual circumstances raised by LSU or TRSL; it is simply part of the mandatory statutory framework or context which determines retirement benefits, and, by extension, Dr. Fishbein’s cause of action. Thus, only issues of statutory interpretation are presented. Where a defense to a plaintiffs claim arises by operation of the very law under which the plaintiff is seeking recovery, the defense need not be affirmatively pleaded and there can be no unfair surprise, since no one may avail himself of ignorance of the law. See La. C.C. art. 5; Salter v. State ex rel. Dept. of Health and Human Resources, 612 So.2d 163, 166 (La. App. 1st Cir.1992). We conclude that the statutory provisions do not constitute “new matters” for affirmative defenses or for purposes of appeal. We must therefore address their applicability in this appeal.

We next address LSU’s third assignment of error relating to the excluded testimony of Mr. Hall, the expert actuary, as its resolution will affect the disposition of the remaining assignments of error. In its brief, LSU claims that the trial court “refus[ed] to allow any testimony on the actuarial amounts due TRSL if the proper law was applied” and “abused [its] discretion in denying the expert ... the opportunity to explain his proposed calculations.” It contends that “[s]inee the trial court refused to allow any testimony on the amounts due under the proper analysis [,] there is |snothing in the record for the [appellate] [c]ourt or the parties to base an award,” thus necessitating a remand to the trial court for presentation of evidence of the “proper” calculations.

The trial court granted a motion in limine excluding evidence and testimony as to Mr. Hall’s opinions relating to the accuracy or “equity” of the contribution figure owed by Dr. Fishbein and provided by TRSL, which was the same ($8,452.42) in both of the alternate actuarial reports. The trial court also sustained an objection to a question seeking Mr. Hall’s opinion as to the “proper” ratio of employer and employee contributions and the amounts due under that ratio. However, the trial court expressly provided “a solution to get that in the record,” an offer of proof or proffer of the testimony. See La. C.C.P. art. 1636. LSU proceeded to present Mr. Hall’s testimony on the disputed point, but our review of the record reveals that although some general testimony as to an approximate 2:1 ratio was presented, no precise calculations were made or otherwise presented during the proffered testimony. If a party fails to avail himself of the opportunity to make an offer of proof, he cannot complain on appeal of a ruling excluding a witness’s testimony. Canty v. Terrebonne Parish Police Jury, 397 So.2d 1370, 1376 (La.App. 1st Cir.), writ denied, 401 So.2d 988 (La. 1981).

The decision of whether to admit or exclude expert testimony is one left to the great discretion of the trial court, and the decision reached by the trial court will not be disturbed on appeal absent an abuse of that discretion. See Moory v. Allstate Ins. Co., 04-0319, p. 3 (La.App. 1st Cir.2/11/05), 906 So.2d 474, 477. Likewise, the effect and weight to be given expert testimony is within the broad discretion of the trial judge. Burdette v. Drushell, 01-2494, p. 13 (La.App. 1st Cir.12/20/02), 837 So.2d 54, 65, writ denied, 03-0682 (La.5/16/03), 843 So.2d 1132. We find no abuse of |fldiscretion in the trial court’s implicit determination that the excluded testimony would not assist it in its determination of the contested issues. See La. C.E. art. 702. Finally, even if it could be concluded that the trial court abused its discretion in excluding such testimony, we conclude that such error would be harmless, as no prejudice to LSU or TRSL resulted by reason of the exclusion of the testimony; the relevant issues to be determined were ultimately legal issues rather than factual issues related to actuarial calculations or opinions. See Pelts & Skins Export, Ltd. v. State ex rel. Dept. of Wildlife and Fisheries, 97-2300, p. 6 (La.App. 1st Cir.4/1/99), 735 So.2d 116, 122-23, writs denied, 99-2036, 99-2042 (La.10/29/99), 748 So.2d 1167, 1168. LSU’s failure to make an offer of proof as to Mr. Hall’s ultimate opinions and calculations on the disputed issue reinforces our holding. Thus, this assignment of error has no merit.

The parties stipulated at the hearing to Dr. Fishbein’s actual total annual compensation (base salary and supplemental salary) for the calendar years 1995 through 1999: 1995 — $214,129.32; 1996— $213,218.90; 1997 — $216,386.84; 1998— $216,615.63; and 1999 — $174,364.22. It is undisputed that if Dr. Fishbein’s. actual total compensation for the fiscal years 1995-96, 1996-97, and 1997-98 is considered, no successive year’s salary exceeds that of the prior year by more than 10%. Her total earnable compensation for the 1997-98 .fiscal year (July 1, 1997 to June 30, 1998), for purposes of recovery of retirement contributions, was $208,502.18, which excludes supplemental salary from July 1,1997 to August 7,1997, a period for which hnher claim for retirement contributions attributable to that supplemental salary is prescribed. LSU and TRSL contend that the trial court erred in accepting the calculations - of Mr. Hall’s September 21, 2005 letter, which did not limit Dr. Fish-bein’s 1997-98 earnable compensation to 110% of her base salary for the 1996-97 fiscal year. Thus, LSU and TRSL contend that Dr. Fishbein’s “allowable” compensation for 1997-98, after application of the 10% salary increase cap, would be $99,953.09,.representing 110% of her base salary for 1996-97, rather than $208,502.18. We disagree.

As the supreme court unequivocally held, under the plain language of La. R.S. 11:701(10), Dr. Fishbein’s supplemental salary “should have been included as part of her earnable compensation” during each of the years it was paid to her. Fish-bein, 04-2482 at p. 17, 898 So.2d at 1271. The fact that it was not, and that her claims for correction of contributions prior to August 7, 1997 are prescribed, does not alter the fact that her supplemental earnings for the prior fiscal year, under “[t]he clear words of the statute,” fall within the statutory definition of earnable compensation. Fishbein, 04-2482 at p. 19, 898 So.2d at 1272.

Under any fair and reasonable reading of the statute, it cannot be concluded that the 10% salary increase cap excludes consideration of the prior fiscal year’s supplemental salary. Thus, for purposes of applying La. R.S. 11:701(5) only, we hold that the baseline “compensation” for that prior year is Dr. Fishbein’s actual or total compensation, which included both her base salary and her supplemental salary. This interpretation does not run afoul of the supreme court’s prior ruling as to prescription of the [^supplemental salary contribution claims, as the supplemental salary for the years subject to prescription is not actually included in calculating her average compensation. We simply hold that determination of the applicability of the 10% salary increase cap requires comparison of the total salary for the prior fiscal year to the total salary of the final fiscal year. By doing so, we apply meanings to the terms “compensation amount” and “actual compensation amount” in La. R.S. 11:701(5) that are logically consistent from year to year and comport with the true meaning of “earnable compensation” under La. R.S. 11:701(10).

Our holding expressed above accords with the jurisprudential rule of liberal construction of pension statutes in favor of retirees. See Swift v. State, 342 So.2d 191, 196 (La.1977); Harrison v. Trustees of La. State Employees’ Ret. Sys., 95-0048, p. 7 (La.App. 1st Cir.10/6/95), 671 So.2d 385, 390. On the other hand, the interpretation advocated by LSU and TRSL would unfairly penalize Dr. Fishbein and would lead to an absurd result, whereby prescription would in effect extend forward in time to reduce benefits accrued in an unprescribed period. Such a result would be contrary to the rule that prescriptive statutes are strictly construed against prescription. See Carter v. Haygood, 04-0646, pp. 10-11 (La.1/19/05), 892 So.2d 1261, 1268.

LSU urges that “[i]t is imperative that the statutes [La. R.S. 11:701(5) and La. R.S. 11:888] be read together to properly apply the scheme developed by the Louisiana [legislature.” We agree, but not for the reasons |iaput forth by LSU. Louisiana Revised Statutes 11:888(C)(2) unequivocally states that “if [a contributions report] error is the total fault of the employer, the employer shall pay the total purchase [of service credit] cost.” That language evinces a legislative intent that a member should not be unfairly penalized for the employer’s “error as to the earnings or salary of a member.” Applying the salary increase cap of La. R.S. 11:701(5) in the manner urged by LSU would plainly contravene such intent.

As to the trial court’s failure to apply the 50% limit on employer share of the price of the purchase of service credit under La. R.S. 11:888, it is undisputed that the error in the contributions reports for Dr. Fishbein was solely LSU’s fault. Dr. Fishbein has judicially confessed her liability for the amount of her share determined by TRSL, or $8,452.42. Thus, LSU clearly owes the balance due TRSL for the purchase of service credit, subject to the following final considerations.

Finally, we note that all parties have stipulated that the actuarial amounts due to TRSL must be updated and made current to the date of actual payment to TRSL, regardless of the result on the merits, and that the trial court’s judgment failed to address this issue. Accordingly, we remand this matter to the trial court for a final evidentiary hearing at which evidence of the updated actuarial amounts due TRSL will be presented, in line with our holdings herein, and for entry of a supplemental judgment setting forth those amounts.

DECREE

The judgment of the trial court is affirmed insofar as it reflects the respective amounts due to the Teachers’ Retirement System of Louisiana by the Board of Supervisors of Louisiana State University and Agricultural and Mechanical College and Judith Fishbein, M.D. as of September 21, 2005,11sand the matter is remanded to the trial court for a final evidentiary hearing and entry of a supplemental judgment consistent with this opinion. All costs of this appeal, in the amount of $719.30, are assessed to the defendant-appellant, the Board of Supervisors of Louisiana State University and Agricultural and Mechanical College.

AFFIRMED AND REMANDED FOR EVIDENTIARY HEARING AND ENTRY OF SUPPLEMENTAL JUDGMENT.

      . Fishbein, 04-2482 at pp. 16-20, 898 So.2d at 1271-72.

      . Fishbein, 04-2482 at pp. 13-14, 898 So.2d at 1269.

        .Fishbein, 04-2482 at pp. 20-21, 898 So.2d at 1273.

      . Fishbein, 04-2482 at p. 21, 898 So.2d at 1273.

      . An affirmative defense is generally defined as “[a] defendant’s assertion of facts and arguments that, if true, will defeat the plaintiff's ... claim, even if all the allegations in the complaint are true.” Black’s Law Dictionary 451 (8th ed.2004).

      . Dr. Fishbein actually retired in 1999, although she entered the DROP program on July 1, 1998. Her 1999 earnings are not relevant for purposes of our determination of the present dispute, as the date she entered the DROP program determines the “average compensation” upon which her retirement benefits are based under La. R.S. 11:701(5). See La. R.S. U:787(A).

      . "Fiscal year” is statutorily defined as the period beginning July 1 and ending June 30 of the following year. La. R.S. 11:701(14).

      . Dr. Fishbein's base salary for the 1996-97 fiscal year was $90,866.44. Her base salary for the 1995-96 fiscal year was $83,085.34. It is undisputed that those figures must be used for the first two years of the three successive years used to calculate Dr. Fishbein’s "average compensation,” since her claims for recovery of retirement contributions for supplemental salary for those years are prescribed. The crux of the dispute at issue is the proper figure to be used for the third and final fiscal year.

      . Our view is the converse of that taken by LSU — that the failure" to apply the salary increase cap of La. R.S. 11:701(5) "implicitly credited her prior year's service with the amount of her supplemental pay,” contrary to the supreme court’s ruling on prescription. As we have previously explained, LSU’s position is based upon acceptance of differing definitions of "earnable compensation” for Dr. Fishbein’s final fiscal year and the prior fiscal year. We apply only one consistent definition, while at the same time recognizing the effect of prescription as to the claim for the prior fiscal year’s retirement contributions attributable to supplemental salary.


source: Caselaw Access Project

author: DOWNING, J.

license: Public Domain

text:
    Floyd DEVALL, E.R. Noland, Richard W. Leteff, Richard C. Thevent and Grant Mealie v. Russell M. STARNS, Individually, and in his Capacity as Statutory Designated Chairperson.
    No. 2006 CA 2155.
    Court of Appeal of Louisiana, First Circuit.
    March 21, 2007.
    Rehearing Denied May 7, 2007.

      Robert L. Raborn, Yigal Bander, Baton Rouge, Counsel for Plaintiffs/Appellees Floyd Devall, Richard C. Thevenet, and Grant Mealie.
    Sheri M. Morris, Baton Rouge, Counsel for Defendant/Appellant Russell M. Starns, in his Capacity as Statutory Designated Chairperson.
    Tina Vicari Grant, Baton Rouge, Counsel for Attorney General State of Louisiana.
    Before: PETTIGREW, DOWNING and HUGHES, JJ.
   DOWNING, J.

lain this lawsuit contesting the incorporation of the City of Central in East Baton Rouge Parish, a trial court ruled that a judgment rendered prior to the incorporation, declaring a provision barring the incorporation of additional cities in East Baton Rouge Parish to be unconstitutional and contrary to state law, was null and void for defects in substance and form. The trial court did not rule whether the nullity of the earlier judgment invalidated the incorporation, and did not rule on two of the bases upon which the incorporation was challenged. In this appeal, the representative of the incorporators asks this court to review that trial court’s nullity ruling and to declare the City of Central to be duly incorporated. Exercising our supervisory jurisdiction, we hold that the purported defects in the judgment declared to be null did not render the incorporation invalid, find that plaintiffs failed to sustain their burden of proving that the incorporation procedural statutes were unconstitutional or that the persons living outside of the area of incorporation were deprived of their right to equal protection or their right to vote, and uphold the validity of the incorporation of the City of Central.

FACTUAL AND PROCEDURAL BACKGROUND

On October 18, 2002, Russell Starns and Mack White, Jr., residents of East Baton Rouge Parish residing in an unincorporated area of the parish, filed a petition for a declaratory judgment in the 19th Judicial District Court against the Metropolitan Council for the Parish of East Baton Rouge and the City of Baton Rouge (City/Parish). Therein, they sought a declaratory judgment decreeing that Section 1.05 of the Plan of Government of the Parish of East Baton Rouge and the City of Baton Rouge (Plan of Government), which became effective in 1949, was unconstitutional and | ^contrary to state law. Section 1.05 of the Plan of Government provided that “[n]o additional city, town or village shall be incorporated in East Baton Rouge Parish.” The plaintiffs in the nullity action urged that this provision was contrary to Article VI, Section 2 of the Louisiana Constitution of 1974, which authorized the legislature to provide by general law for the incorporation of municipalities, and La. R.S. 33:1 et seq., enacted by the legislature in 1984 to establish procedures for the incorporation of municipalities. Specifically, they argued that the Section 1.05 ban on the incorporation of cities in East Baton Rouge Parish violated La. R.S. 33:1, which permitted the incorporation of any unincorporated area with a population of more than two hundred, provided certain procedural requisites were met.

In the 2002 lawsuit, the plaintiffs served the Council Administrator for the Metropolitan Council of the City/Parish. The attorney general was not served with a copy of the lawsuit and did not participate therein. The City/Parish answered the lawsuit and admitted that Section 1.05 of the Plan of Government was unconstitutional and violative of state law. On November 14, 2002, the trial court rendered judgment decreeing Section 1.05 of the Plan of Government to be unconstitutional and contrary to state law, and therefore, null and void. Starns v. Metropolitan Council of the Parish of East Baton Rouge and the City of Baton Rouge, Docket No. 500,675 (19th JDC 10/18/2002) (hereafter referred to as “Stams I ”).

Thereafter, in November of 2004, citizens residing in the Central area filed their first petition for incorporation. According to the allegations of the petition, the Attorney General issued an opinion advising Governor Kathleen Babineaux Blanco that the petition did not meet the requirements of La. R.S. 33:1. After the governor refused to call an election, Mr. Starns, as the | ¿representative for the proponents of the incorporation, filed a suit for mandamus in the 19th Judicial District Court seeking a judgment ordering the governor to hold an election. On December 8, 2004, the trial court ordered the governor to call an election on the issue of incorporation of the City of Central to be conducted on April 2, 2005. The ruling was appealed to this court.

While the appeal was pending, a second incorporation petition was filed with the Secretary of State by Mr. Starns, together with a Certificate of the Registrar of Voters who certified that the total number of voters in the proposed area of incorporation was 18,257, and the petition contained 4,888 signatures of qualified voters. The petition for the incorporation of Central includes a legal description of the area proposed for incorporation, states that there are approximately 26,000 inhabitants residing in the area proposed for incorporation, sets forth the assessed value of real property in the area, and identifies the services to be provided by the municipality. A special election on the issue of incorporation of the City of Central was held on April 23, 2005, with 8,190 votes cast therein. The incorporation was approved by 62.59% of the voters. The election results were published in the Baton Rouge Morning Advocate on May 3, 2005.

On May 31, 2005, Floyd Devall, E.R. Noland, Richard W. Leteff and Richard Thevenet, registered voters living within the geographical boundaries of the proposed city of Central, along with Grant Mealie, a black resident of East Baton Rouge Parish living outside but adjacent to the geographical limits of the City of Central, filed this lawsuit contesting the validity of the incorporation. Plaintiffs asserted three bases for attacking the incorporation.

|fiIn the first series of challenges, plaintiffs claimed that the incorporation election was unauthorized under the law because the November 14, 2002 judgment in Stams 1, which declared Section 1.05 of the Plan of Government unconstitutional and contrary to state law, was an absolute or relative nullity. They insisted that the 2002 judgment was the authority by which the people voted on the proposal to incorporate the City of Central, and urged that nullification of the judgment operated to completely nullify the April 23, 2005 election. Specifically, plaintiffs urged that the judgment contained a defect in form rendering it an absolute nullity under La. Code Civ. P. art.2002 because the Attorney General was not served with the petition and did not participate in the proceeding. Alternatively, they submitted that the judgment was obtained by “fraud or ill practices” and null for a defect of substance under La.Code Civ. P. art.2004. In support of this claim, plaintiffs posited that the character of the suit was “friendly,” as both sides were in “complete agreement” regarding the constitutional issue, and complained that the constitutional issue was decided without placing the case on the docket, a contradictory hearing, written briefs, an attempt by the trial judge to construe Section 1.05 so as to preserve its constitutionality, or written reasons.

In their second set of challenges, plaintiffs sought to have the court declare La. R.S. 33:1 through R.S. 33:7, which set forth the procedures for the incorporation of municipalities in an unincorporated area of the state, facially unconstitutional, asserting that the provisions constituted an unlawful delegation of legislative power-making authority to certain citizens and voters in violation of Article III, Section 1 of the 1974 Constitution. They complained that the statutes lacked restraints or guidelines to determine where, when, and how an area is to be incorporated, who will be | (¡included in the area, and who will make those decisions. Alternatively, they asserted, the provisions of La. R.S. 33:1-7 are unconstitutional as applied to the facts of the case because those statutes were used to facilitate racial discrimination and to patently deprive blacks of their right of equal protection, due process, and the right to vote because of their race. Citing voting statistics on voter composition inside and outside the area for proposed incorporation, plaintiffs urged that the proposed area of incorporation was intentionally drawn to systematically exclude blacks from inclusion in the proposed city and to deny them the right to vote on the incorporation issue.

In the third series of challenges, plaintiffs insisted that the incorporators failed to comply with the procedural steps set forth in La. R.S. 33:1-4 to call and hold an incorporation election. They urged, among other things, that the legal description of the area to be incorporated is fatally defective, and that the signatures of the voters who signed the petition for incorporation were not properly certified.

Following the filing of the lawsuit challenging the incorporation, on July 11, 2005, Governor Blanco appointed a mayor, chief of police, and city council members pending the holding of elections in the City of Central. Also on that date, an “Intergovernmental Agreement” was entered into by the City/Parish, the Planning Commission for the City of Baton Rouge, the Parish of East Baton Rouge, the Central Transition District, and the City of Central, to provide for the continuation of public services to all citizens in the incorporated area of Central and those living outside the incorporated area. In April of 2006, voters in the City of Central elected a mayor, chief of police, and city council members.

17Prior to the trial, Mr. Starns filed numerous exceptions raising objections of insufficiency of service, no cause of action, no right of action, and nonconformity of the petition with La. C.C.P. art. 891. He also filed a motion for summary judgment, urging that plaintiffs could not prevail in a nullity action as a matter of law because the action was untimely, plaintiffs failed to allege facts constituting fraud or ill practices, and there was no legal requirement that the Attorney General be served with the petition. Additionally, Mr. Starns contended that there was no evidence to support plaintiffs’ claim that black persons were denied their right of equal protection or that the boundaries of the area were gerrymandered to exclude blacks. In support of the argument that plaintiffs failed to demonstrate racial discrimination, Mr. Starns relied on the deposition testimony of plaintiffs in which they acknowledged they had no knowledge of how the boundaries of the area to be incorporated were drawn. Specifically, he pointed to the deposition testimony of plaintiff Floyd De-vall, who, in response to a question regarding what knowledge he had concerning an intent to discriminate against black individuals, responded that he did not know and that his lawyer could answer the question. Plaintiff Richard Thevenet said that he would defer the question to his attorney when asked as to the type of information he had that led him to believe that the boundaries were drawn to exclude black citizens. Lastly, plaintiff Grant Mealie attested that he did not know whether race was a factor in drawing the boundaries. Mr. Starns urged that because there was no evidence to demonstrate that the area proposed for incorporation was gerrymandered or that race was a factor in drawing the boundaries, plaintiffs had no legal basis upon which to have the incorporation statutes declared unconstitutional. Lastly, Mr. Starns asserted that plaintiffs had no evidence to support the allegations concerning the legal | ^description of the area to be incorporated, the handling of the petition by the registrar of voters, and the ability of Central to provide services.

The Attorney General filed a memorandum in support of Mr. Starns’ motion for summary judgment, urging that the failure to give him notice in the Stams I litigation did not render that judgment a nullity because he was not an indispensable party to that litigation. The Attorney General also filed a trial memorandum urging that the 2002 judgment was not an absolute nullity, and further asserted that plaintiffs offered no evidence to prove that the provisions of La. R.S. 33:1-7 are unconstitutional.

In a series of preliminary rulings, the trial court granted the exception of insufficiency of service as to Mr. Starns individually, but overruled the exception as to Mr. Starns in his capacity as the designated chairperson for the incorporation. The trial court also overruled the exception of no cause of action regarding the claim of unconstitutionality of La. R.S. 33:1. Additionally, the court denied the motion for summary judgment, ruling that whether or not the voting district was drawn in such a manner as to exclude minority voting, or whether or not there was collusion in the underlying lawsuit were genuine issues of material fact precluding summary judgment.

On April 10, 2006, the first day of the trial challenging the incorporation of Central was held, during which plaintiffs presented their case-in-chief, consisting of documentary evidence and the testimony of four witnesses. All three plaintiff witnesses testified that they did not have knowledge of the 2002 judgment until May 24, 2005, one week before the petition was filed, when their attorney furnished this information. The first witness, Mr. Floyd Devall, an 81-year-old who lived in the area of | ^incorporation, voted in the April 23, 2005 incorporation election. He described the area historically considered to be the Central community and identified areas in the proposed area of incorporation that are not of that community. In connection with Mr. Devall’s testimony, his affidavit, prepared in opposition to the motion for summary judgment filed by Mr. Starns on the voting rights issue, was introduced. In the affidavit, Mr. Devall set forth voter compositions inside and outside the areas of incorporation. Mr. Devall admitted that he arrived at the figures in the affidavit after discussions with his attorney, who showed him a document tabulating all of the registered voters in the Parish of East Baton Rouge. In the affidavit, Mr. Devall attested that eleven precincts bordering on the proposed City of Central had a ratio of 74.9% black voters to 22.1% white voters, while the voter composition within the 21 voting precincts of the proposed city was 95.7% white and 4.3% black. On cross-examination, Mr. Devall admitted that he had no knowledge of how the boundaries were selected for the area of incorporation.

Plaintiffs’ second witness, Mr. Richard Thevenet, a resident of the proposed area of incorporation, voted in the April 23, 2005 incorporation election and also prepared an affidavit similar to that of Mr. Devall. In his affidavit, offered in connection with Mr. Thevenet’s testimony, statistics on the racial composition of voter precincts in and around the Central area appear. Mr. Thevenet acknowledged that the figures were extracted from a data sheet admitted into evidence as Plaintiffs’ Exhibit 5. Plaintiffs’ Exhibit 5 is a listing of registered voters in East Baton Rouge Parish as of May 6, 2005, which lists precincts by number and does not identify any of the precincts by name or location.

| ^Plaintiffs’ third witness, Mr. Grant Mealie, a black resident of East Baton Rouge Parish, lives outside the proposed area of incorporation in Monticello Subdivision, which is heavily populated by black voters. Mr. Mealie also signed an affidavit in which he listed voter composition data identical to that contained in the affidavits of Mr. Devall and Mr. Thevenet. Mr. Mealie stated that he felt the incorporation would have an adverse effect on the value of his property and on other services he normally received in the area such as electricity, water and garbage pickup. When questioned by the court as to his basis for making this statement, Mr. Mealie said that it was “just normal.” He further acknowledged that there were no specific services he received prior to the incorporation election that he no longer receives. Mr. Mealie expressed his desire to have a vote on the incorporation decision.

The last witness called by the plaintiffs was Mr. Starns. Mr. Starns testified briefly regarding the legal description of the area to be incorporated contained in the petition for incorporation, as well as the present day operation of the City of Central. Mr. Starns attested that prior to drawing the boundaries, the incorporators obtained input from minorities, who chose not to be included in the city limits. He also testified that city officials had been elected, and that the City of Central was conducting business as usual, including holding council meetings and ruling on zoning matters.

Thereafter, plaintiffs rested. The defense filed a motion for an involuntary dismissal, asserting that plaintiffs failed to prove any of the allegations of the petition, including (1) the invalidity of the 2002 judgment; (2) that anyone living outside the incorporation had been denied services as a result of the incorporation; or (3) that there was any violation of the laws setting forth the requirements for incorporation. The trial judge granted the Inmotion in part, finding that plaintiffs did not prove the claim against Mr. Starns individually, failed to prove claims for mental and economic damages, and also failed to prove that the City of Central would not be able to provide the proposed public services within a reasonable time. The court noted that it did not allow evidence with respect to the claims alleging violation of the Rules of Professional Conduct. The trial court denied the motion with respect to the issue of the nullity of the 2002 judgment and the claims relating to the denial of the right to vote.

The defense offered the testimony of Nancy Underwood, an assistant director of elections in the Secretary of State’s Office, who identified the documents submitted to her office in connection with the petition for incorporation and the incorporation election, including proof of publication of the election results. The defense also offered the testimony of Mr. Starns, who testified regarding the legal description of the area to be incorporated in the two petitions that had been circulated to the citizens, as well as the manner in which the City of Central was carrying out its duties of providing basic services to its citizens. Mr. Starns explained that following the incorporation election, the legislature created the Central Transition District, which allowed the city to receive funds until it could hold an election to transfer taxes to the area. He testified that services were provided to the residents of Central by the City/Parish through the intergovernmental agreement, pursuant to which the City/Parish was paid ninety percent of the two percent sales tax paid in the City of Central to provide uninterrupted public services.

Following the conclusion of the trial, the court entered judgment nullifying the 2002 judgment in Starns I upon finding that it was a “friendly,” if not collusive proceeding, that was imbued with vices of form 11sand substance. Specifically, the court found that because the constitutionality of a local law was at issue, the State of Louisiana should have been named a party defendant, and the Louisiana Attorney General should have been served with process or provided with notice. The court further noted that the matter was not even placed on the docket for a hearing or trial, but rather, was entered upon a stipulation of unconstitutionality between the plaintiffs’ attorney and the assistant parish attorney. Although the trial court found the 2002 judgment to be null, it did not rule that the nullity invalidated the incorporation election. Instead, the court preter-mitted ruling on the action to declare La. R.S. 33:1-7 unconstitutional, as well as the procedural challenges to the validity of the corporation. The nullity judgment was designated as a final one by the trial court.

Mr. Starns filed an application for a supervisory writ to this court. The writ application was denied, and this court ordered the trial court to grant Mr. Starns an appeal. Devall v. Starns, 2006-1762 (La.App. 1st Cir.10/2/06). The appeal was granted and plaintiffs answered the appeal, requesting that this court: (1) amend the judgment to add certain language thereto, including a declaration that Section 1.05 of the Plan of Government is valid and enforceable; (2) award damages for frivolous appeal and attorney fees; (3) find that Mr. Starns and others acting with him are in contempt of court by continuing to act as a legally incorporated municipality while the matter was pending in the trial and appellate courts; (4) find that the exception of insufficiency of service sustained by the trial court as to Mr. Starns in his individual capacity was granted in error by the trial court; and (5) notify all appropriate state and federal governmental and law enforcement agencies of the actions of defendant and those acting in concert with him in | ^establishing and operating a “phantom non-existent” city in the Central community.

DISCUSSION

In three assignments of error, Mr. Starns attacks the trial court’s ruling that the 2002 judgment was a nullity. He complains that the action to nullify the judgment was untimely and thus perempted, that service upon the Louisiana Attorney General was not necessary for the judgment to be valid, and that there is no evidence that the judgment was obtained by fraud or ill practices. Furthermore, he submits, even if the 2002 judgment was properly declared a nullity, the judgment’s nullity cannot serve as a basis to invalidate the incorporation of the City of Central because Section 1.05 of the Plan of Government is clearly unconstitutional and unenforceable. We agree that even if the 2002 judgment is null, that nullity did not have the effect of invalidating the incorporation election, and pretermit discussion on the issue of whether the trial court correctly found the 2002 judgment to be null and void.

Section 1.05 of the Plan of Government, which went into effect in 1949, provides as follows with respect to incorporated towns and villages:

The incorporated town of Zachary and the village of Baker shall be parts of the rural area as defined in section 1.08 and shall continue in existence as municipalities subject, except as specifically provided in this plan of government, to the general laws of the state relating to incorporated towns and villages respectively, and may enlarge their boundaries as provided in such laws. No additional city, town or village shall be incorporated in East Baton Rouge Parish.

The Louisiana Constitution of 1974 allowed local governments that had adopted a plan of government to retain those powers, functions and duties in effect when the constitution was adopted “except as inconsistent” with the | uconstitution. Article VI, Section 2 of the 1974 Constitution gave the legislature the power to provide by general law for the incorporation of municipalities. Article VI, Section 8 of the 1974 Constitution mandates that “[n]o parish plan of government.. .shall prohibit the incorporation of a city, town, or village as provided by general law.”

In 1984, the legislature provided for general laws setting forth procedures by which the residents of any unincorporated area with a population in excess of two hundred inhabitants could incorporate the area. La. R.S. 33:1-2. Under La. R.S. 33:3, upon finding that there was compliance with La. R.S. 33:1-2, the governor is required to call a special election for the purpose of determining whether the unincorporated area shall become a municipality. La. R.S. 33:7(A) makes it clear that the provisions of La. R.S. 33:1-6 shall apply to every municipality incorporated on or after September 1,1984.

Considering the above provisions, it is evident that after 1984, Section 1.05 of the Plan of Government prohibiting the incorporation of any additional city or town in the Parish of East Baton Rouge was su-perceded by the general law enacted by the legislature in Title 33 authorizing the incorporation of an area in excess of two hundred inhabitants. Moreover, Section 1.05 violated the constitutional ban on any provision of a parish plan of government prohibiting the incorporation of a city or town as provided by the general law. Thus, as of 1984, Section 1.05 was no longer a viable and enforceable provision.

Therefore, even if the effect of the 2006 judgment nullifying the Starns I judgment was to put Section 1.05 “back on the books,” the provision simply was not a viable and enforceable one. Because Section 1.05 was not enforceable at the time of the incorporation election in 2005, 11Rplaintiffs may not rely on that provision as a basis to invalidate the incorporation election.

Although the trial court did not rule on the merits of the remaining challenges, because the record in this matter is complete, and because the issues raised therein merely involve the question of whether plaintiffs sustained their burden of proof, we shall address those claims in this appeal.

After reviewing the record in its entirety, we find that plaintiffs failed to prove that any of the provisions of La. R.S. 33:1-7, which provide a procedure for incorporating areas with two hundred or more residents to petition the governor to hold an election on the incorporation issue, are facially unconstitutional. Nor have plaintiffs demonstrated how those provisions are unconstitutional as applied. Plaintiffs failed to offer competent evidence in support of their claim that- the boundaries of Central were purposefully drawn in a racially discriminatory fashion or were chosen to deprive black citizens in the area of their right to vote.

Pursuant to La. R.S. 33:4(D), in a legal action contesting an incorporation, a court must determine: (1) whether there has been full compliance with the incorporation procedural provisions; (2) whether the municipality can in all probability provide the proposed public services within a reasonable period of time; and (3) whether the incorporation is reasonable. If it is determined that the statutory requirements for incorporation have been met, including the accuracy of the statements in the petition and of the certification of the registrar of voters, that the municipality has the capacity to provide the proposed public services, and the incorporation is reasonable, a court is required to enter an order declaring the date the municipality shall become incorporated. La. R.S. 33:4(D) and (E).

11fiPlaintiffs failed to establish that the petition was fatally defective, or that there was a deficiency in the certification of the registrar of voters. Instead, Mr. Starns offered evidence showing that the preliminary requirements for incorporation were in fact met. Additionally, Mr. Starns offered evidence demonstrating that public services are being provided to the citizens of Central, and nothing in the evidence indicated that such services would not be provided in the future. Moreover, there was no evidence suggesting that the incorporation would have any adverse effects on other municipalities in the vicinity, nor was there any evidence demonstrating that the incorporation of Central was unreasonable.

For these reasons, we find that plaintiffs failed to sustain their burden, of proving any of the grounds upon which the validity of the incorporation of the City of Central was challenged. In accordance with La. R.S. 33:4(E)(1), we enter judgment declaring the City of Central to be incorporated as of July 11, 2005, and having those boundaries as set forth in the legal description of the area to be incorporated in the petition for incorporation. In light of this ruling, all requests for relief raised in plaintiffs’ answer to this appeal are denied as moot. Trial court costs and costs of this appeal are assessed to plaintiffs/appel-lees.

JUDGMENT RENDERED DECLARING THE CITY OF CENTRAL INCORPORATED AS OF JULY 11, 2005..

      . This appeal was dismissed upon motion of the governor on May 22, 2006.

      . Mr. Noland subsequently withdrew from the litigation.

      . The attorney general’s suggestion that his office was not entitled to notice of the Stams I litigation because it did not involve a constitutional challenge to a "statute, ordinance or franchise” for the purpose of Article 1880 of the Code of Civil Procedure appears contrary to State v. Saizan, 96-1340 (La.4/8/97), 692 So.2d 1045, wherein the supreme court notified the attorney general of a lawsuit in which a provision of the City/Parish's Plan of Government was declared unconstitutional by a trial court.

      . On December 11, 2006, this court granted Mr. Starns' motion for an expedited appeal. Devall v. Starns, 2006-2155 (La.App. 1 Cir. 12/11/06).


author: KUHN, J.

text:
    Joanna Wurtele LOWMAN v. Edward J. MERRICK, Jr., Frank Erwin Merrick and Noemie Garrett Merrick, II.
    No. 2006 CA 0921.
    Court of Appeal of Louisiana, First Circuit.
    March 23, 2007.

      C. Jerome D’Aquila, New Roads, Joseph M. Bruno, New Orleans, Counsel for Plaintiff/Appellee Joanna Wurtele Lowman.
    Terry T. Dunlevy, Baton Rouge, Counsel for Defendants/Appellants Edward J. Merrick, Jr. and Frank Erwin Merrick.
    J.. Tracy Mitchell, Keith Friley, Baton Rouge, Counsel for Defendant/Appellant Noemie Garrett Merrick, II.
    Before: KUHN, GAIDRY, and WELCH, JJ.
   KUHN, J.

| ¿This appeal addresses the validity of an option to purchase property owned by defendants-appellants, Edward J. Merrick, Jr., Frank Erwin Merrick, and Noemie Garrett Merrick, II (“Noemie II”), and whether the option was properly exercised by plaintiff-appellee, Joanna Wurtele Low-man (“Joanna”). The dispute between the parties arises out of the settlement of the estate of their deceased mother, Noe-mie Garrett Merrick (“Noemie”). After plaintiff filed suit seeking to enforce the option, defendants reconvened seeking to enforce other terms of the settlement agreement. After trial of the main demand, the trial court signed a November 29, 2005 judgment decreeing that Joanna was entitled to specific performance of the option. The defendants have appealed this judgment, and we affirm.

I. PROCEDURAL AND FACTUAL BACKGROUND

The facts related to the option dispute are largely undisputed. Joanna is the daughter of Alan Wurtele and Noemie G. (Wurtele) Merrick. After Mr. Wurtele died, Noemie married Edward J. Merrick, Sr., and of this marriage, three children were born: Edward, Frank, and Noemie II.

In 1973, years after Mr. Wurtele’s death, Joanna and Noemie executed an act of partition that divided the former community property held by Noemie and the late Alan Wurtele, whereby Joanna received her interest in the property of the former estate of her father. Edward J. Merrick, Merrick, Sr. died in 1992, and a judgment of possession was signed in 1993. Noemie died in 1994, and the three Merrick siblings served as joint testamentary executors of her estate.

laAccording to Joanna, Noemie bequeathed her estate to the three Merrick children, after asking Joanna not to participate in her succession. Ultimately, Joanna filed suit seeking her “forced one-eighth” interest of Noemie’s estate. During the administration of the estate to settle Joanna’s claim, counsel for the respective parties signed a “Stipulation” on February 8, 1996. Thereafter, the trial court that handled the succession proceedings signed a partial judgment of possession on April 3, 1996, and a final judgment of possession on October 30, 2000.

The February 8, 1996 Stipulation was signed by Francis A. Smith, Jr., who signed in his capacity as attorney for the Merrick brothers; J. Tracy Mitchell, who signed in his capacity as attorney for Noe-mie II; and J. Huntington Odom, who signed in his capacity as attorney for Joanna. The settlement provided as follows, in pertinent part:

Now into Court, through their undersigned counsel, come [Edward, Frank, and Noemie II] and [Joanna], who do enter into the following stipulation:
Joanna has filed a petition to be recognized as a forced heir of the decedent and to be recognized as entitled to her legitime....
In order to obviate the expense of protracted litigation and the uncertainty of result of that litigation, the parties have agreed to a settlement wherein [Joanna], the forced heir, will receive the property described in the ... letter agreement dated January 31, 1996, between Francis A. Smith, Jr., [attorney for Merrick Brothers] ... and J. Huntington Odom, attorney for [Joanna] ... which letter is made a part hereof by reference, the said letter agreement being adopted by [Noemie II] as fully as if the same had been signed by her counsel.
In addition to the terms and conditions set forth in the letter agreement, the parties further agree as follows:
|47. It is understood and agreed that [Joanna] reserves all rights that she now has or hereafter may acquire to make claim for all or any particular items of furniture ... wherever the same may be located ....
8. It is further stipulated that no party hereto shall take any item from the family home without the written consent of all three Joint Executors. This constraint shall apply until Joanna shall have obtained a Judgment of Possession placing her in possession of the family home and shall have taken physical possession of the home. Thereafter, Joanna shall be responsible for the contents of the home.

Just prior to the February 8, 1996 Stipulation, Mr. Smith sent a letter to Mr. Odom (the “January 31, 1996 letter agreement”), which provided, in pertinent part:

My clients [Merrick brothers] believe that a fair and equitable settlement with your client is in the best interests of the succession and all of its heirs and legatees. For this reason, they have offered in settlement to your client ... said offer of settlement and agreement being as follows:
(5) Joanna would have the option of acquiring an additional 145 feet of riverbank in front of the homeplace (giving her the option of owning the full 420 feet of river frontage corresponding with the full width of the homeplace) by paying the sum of $600.00 per foot for same. In lieu of paying for said 145 additional feet as set forth above, she would have the option of exchanging the northernmost 217.5 feet of her riverbank footage (acquired by her in the prior partition with her mother) for the 145 feet in front of the homeplace, said option to be effective for a period of one (1) year from the date a final Judgment of Possession is signed in Mrs. [Noemie] Merrick’s succession.

The April 3, 1996 “Partial Judgment of Possession and Judgment Reducing Excessive Donations” provided in part that Joanna was granted an option to buy the property in question:

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that [Joanna] is further recognized, as being entitled to and she is hereby granted the option to acquire the following described property, all as set forth in the Stipulation and agreement filed into the record of this proceeding, and attached to the Petition for Possession filed herein, for Isthe consideration set forth therein, said option to be effective for a period of one (1) year from the date a final Judgment of Possession is rendered in this succession ....

Thereafter, Mrs. Clover N. Drinkwater, counsel for Joanna, sent a letter on June 23, 2000, to Mr. Smith that stated:

This letter is to advise you that [Joanna] elects to exercise the option conveyed to her by letter agreement dated January 31, 1996, to purchase the 145 feet of riverbank in front of her property for the sum of $600.00 per foot. Please forward an executed deed to me for same which I will hold in escrow pending the forwarding of the consideration to you.

On October 30, 2000, the trial court signed a “Judgment of Possession,” which ordered that Edward, Frank, and Noemie II were entitled to the ownership of and were sent into possession of all of Noe-mie’s property.

By letter dated December 4, 2000, Mr. J. Tracy Mitchell, counsel for Noemie II, sent a letter to Joanna inquiring about Noemie II’s furnishings left in Joanna’s home at the time of the settlement with her. The letter stated in pertinent part:

The succession has recently been closed and my client wants to tend to the matter of the furnishings which we left under your care as fiduciary.
Please advise as to the current location of the furnishings and when they may be inspected.
While we have never been given notice of or agreed to any disposition of the furnishings, if some disposition has been made in fact, please advise in detail as to the particulars of any such disposition, and what items remain.

By letter dated March 2, 2001, Mr. Terry T. Dunlevy, counsel for the Merrick brothers, wrote a letter to Ms. Drinkwater stating, in pertinent part:

It is my understanding that [Joanna] is exercising her option to purchase the additional 140 feet of riverbank property situated in front of the home. While it may be true that the option conveyed to Joanna is not ^contingent on resolution of any other issues, my clients desire that Joanna account for and agree to settle the contents issue. The Stipulation dated February 8, 1996 provides that Joanna may not take any item from the family home without the written consent of all three Joint Executors. The Stipulation also provides that Joanna shall be responsible for the contents of the home.
The purpose of this letter is to formally request that Joanna account for the contents of the home as set forth in the February 8, 1996 Stipulation and the letter agreement dated January 31, 1996. Please provide the required accounting, in writing, no later than March 9, 2001.

Mr. John Wayne Jewell, counsel for Joanna, wrote a May 3, 2001 letter to Mr. Dunlevy, which read as follows, in pertinent part:

You will recall that I spoke with you ... relative to the option granted to [Joanna] .... I notified you that [Joanna] desired to exercise this option. To the extent it may be deemed necessary, this will serve as formal notice thereof.
I inquired ... whether you thought your clients would transfer title to their interests in the subject lots even though their sister [Noemie] might refuse due to her stated requirement that the contents issue be resolved first. You indicated that they probably would not make the sale contingent upon a resolution of the contents issue ....
I would appreciate your talking with [the Merrick brothers] and letting me know their position, as Joanna would like to proceed with the sale of at least their interests at this time.

On October 9, 2001, counsel for Joanna, Mr. Robert L. Cabes of Milling Benson Woodward L.L.P., sent a letter to Mr. Mitchell regarding the exercise of the option that provided as follows, in pertinent part:

We have been retained to represent [Joanna] in various matters, including the exercise of her option to purchase from the heirs of [Noemie] the additional frontage on False River....
I would appreciate you advising me as soon as possible whether any impediment exists to concluding the transaction.
If any such impediment exists, please communicate it to me. If not, I would like to plan on a closing. Attached is a copy of the survey 17which was provided to me, and it being my understanding that the tracts in question are shown as Lots RP-1 and RP-2, which show a total frontage of 143.06 feet. Based upon the agreements provided to me, the cash consideration would be $85,836. I would ask that you provide me with the correct address and social security number for your client and I will be happy to prepare the deed. It would be my suggestion that we prepare a deed, forward it to you for execution by your respective client and make arrangements for [Joanna] to deposit the consideration with this firm in escrow pending the closing....

Mr. Cabes also sent another letter on October 9, 2001, containing the same language quoted above, to Mr. Dunlevy.

On October 25, 2001, Mr. Jeff W. El-more of Milling Benson Woodward L.L.P., counsel for Joanna, sent a letter to Mr. Dunlevy and Mr. Mitchell in their respective capacities as attorney for the Merrick brothers and for Noemie II. The letter referenced, in pertinent part, an enclosed Act of Cash Sale conveying the property that is the subject of the option:

Upon your review, we would appreciate a prompt response as to any comments you may have and in coordinating the parties’ signing of the sale....
If we do not receive a response by October 31, we will have no other choice but to file a lawsuit against those not cooperating, to enforce specific performance of the agreement....

On October 31, 2001, Mr. Dunlevy sent a letter to Mr. Cabes via facsimile transmission formally requesting that Joanna account for the contents of the home in writing by November 15, 2001. The letter indicated that the Merrick brothers would “have no problem with [Joanna] executing the option” if she would perform her obligation under the February 8, 1996 Stipulation and provide an accounting regarding the home contents.

Also on October 31, 2001, Joanna filed suit against Edward, Frank, and Noemie II, alleging that despite her “repeated requests and demands, defendants | shave, in bad faith, failed or refused to perform their obligations under the Option Agreement.” Joanna prayed for specific performance of the option and damages caused by defendants’ failure to perform. The defendants answered plaintiffs petition, asserting Joanna had failed to carry out her duties and obligations imposed by the partial judgment of possession and the Stipulation, thereby resulting in a failure of consideration regarding the option.

The defendants also reconvened, asserting that when Joanna took possession of the family home in 1996, she had agreed as part of the settlement to be responsible for the contents of the house, which included various pieces of furniture. In the October 30, 2000 judgment of possession, the defendants were declared to be owners of the household furniture. Defendants claimed that Joanna has refused or failed to deliver the furniture to them, and they further demanded the delivery of their respective shares of the furniture or compensation for the actual value of the home contents. Further, the Merrick brothers alleged that Joanna was responsible for an accounting of the contents of the home.

A hearing was held on September 29, 2005 that disposed of the main demand. The trial court determined a ■ separate hearing would be needed to dispose of the reconventional demand. On November 29, 2005, the trial court signed a judgment ordering:

[0]n the main demand, there be judgment in favor of [Joanna] and against [Edward, Frank and Noemie II], decreeing that [Joanna] is entitled to specific performance of the option which is the subject of this lawsuit and accordingly, defendants are ordered to convey by Act of Cash Sale [the property] for $600.00 per front foot or a total of [$85,836.00] to be paid to defendants in equal proportions, said sale to be executed by defendants immediately[.]

laAll defendants have appealed this final judgment. Noemie II asserts the trial court erred in finding that: 1) a valid option existed; 2) the option was exercised; and 3) Joanna was entitled to specific performance regarding the option despite the failure of consideration on her part. The Merrick brothers urge the trial court erred by: 1) finding that the provision of the settlement that granted the option was independent of the provisions regarding her responsibility for the furniture; and 2) signing a judgment granting specific performance of the option because Joanna was in default when she tried to exercise her option.

II. ANALYSIS

A. Validity of the Option and Failure of Consideration/Default

Noemie II contests the validity of the option on multiple points. She asserts that the documents referencing the option either do not contain a precise definition of the property or a precise description of the consideration for which the option was granted. She also asserts the documents in question did not clearly grant an option to Joanna, and none of these documents reflect the consent of the grantors individually. We find no merit in Noemie II’s contentions. While she challenges the effect of the January 31, 1996 settlement letter and the February 8, 1996 Stipulation and argues these documents did not create an option, she provides no basis for nullifying the provisions of the April 3, 1996 judgment that recognized the option in favor of Joanna. She collaterally attacks the judgment by attacking the terms of the underlying documents, but she has not sought to nullify the April 3, 1996 judgment.

|1flA collateral attack is defined as an attempt to impeach a decree in a proceeding not instituted for the express purpose of annulling it. Salles v. Salles, 04-1449, p. 5 (La.App. 1st Cir.12/2/05), 928 So.2d 1. As the supreme court stated in Allen v. Commercial Nat. Bank, 243 La. 840, 147 So.2d 865, 868 (1962), “No principle of law has received greater and more frequent sanction, or is more deeply imbedded in our jurisprudence, than that which forbids a collateral attack on a judgment or order of a competent tribunal, not void on its face ab initio.” “A judgment rendered by a Court of competent jurisdiction imparts absolute verity and has the force of things adjudged, unless and until it is set aside in a direct action of nullity. It cannot be collaterally attacked.” Salles v. Salles, 04-1449, pp. 5-6. Thus, in accordance with the terms of the April 3, 1996 judgment, we find no merit in Noemie’s contentions that the option was not valid.

The Merrick brothers urge the trial court erred by finding that the provision in the settlement that granted the option was independent of Joanna’s obligations regarding the furniture. The Merrick brothers and Noemie II also argue that Joanna breached the terms of the settlement agreement, causing her to be in default and unable to enforce the option. We find no merit in these arguments; they are attempting to collaterally attack the April 3, 1996 judgment and to avoid the obligations imposed by the judgment. If Joanna has not complied with the judgment, the defendants can seek enforcement of Joanna’s obligations pursuant to the terms of the judgment. Based on the terms of the judgment, Joanna was granted an option to acquire the property at issue during a one-year period following the October 30, 2000 judgment. The terms of the judgment do not provide that Joanna’s option to purchase the property was contingent upon her obligation to be responsible for the l^home's contents. Although the judgment references the February 8, 1996 Stipulation, its terms do not establish such a contingency, as the trial court properly concluded.

B. Exercise of the Option

The trial court concluded that Joanna timely exercised the option, and we find no error in this conclusion. The record establishes that Joanna timely exercised the option by sending numerous letters written on her behalf by attorneys who represented her during the period in question. The record also establishes that defendants’ respective attorneys timely received these letters. Further, all of the parties acknowledged that the various attorneys acted on behalf of their respective clients; no one claimed that any of the attorneys exceeded their authority to act in the representation of their respective clients. The trial court reasoned, “For the defendants to now claim that the plaintiff did not validly exercise the option by mailing notice of the same to their counsel is disingenuous.” We agree.

Noemie II argues there is no written mandate authorizing the actions of Joanna’s attorney to exercise the option on her behalf. Noemie II also complains that she did not receive direct notice regarding the exercise of the option from Joanna.

An option to buy is a contract whereby a party gives to another the right to accept an offer to sell a thing within a stipulated time. La. C.C. art. 2620. The acceptance of an offer contained in an option is effective when received by the grantor; upon such an acceptance, the parties are bound by a contract to sell. La. C.C. art. 2621. Generally, a sale or promise of sale of an immovable must be made by authentic act or by act under private signature. La. C.C. art. 1839 and 2440. |19When the law prescribes a certain form for an act, a mandate authorizing the act must be in that form. La. C.C. art. 2993. Thus, in the sale of immovable property, written authority is required for an agent to execute either an agreement to sell or a contract of sale. Tedesco v. Gentry Development, Inc., 540 So.2d 960, 964 (La.1989).

We recognize that the attorneys in their representative capacities could not execute an act of sale on their respective clients’ behalf, but based on the particular facts of this case, we conclude that Joanna’s attorney was authorized to provide the mere notice that she was accepting Noemie II’s offer to sell. Joanna and Noemie II authorized their respective attorneys to act for them in settling their mother’s succession. That settlement involved the granting of the option to Joanna, and in conformity with the Stipulation and the partial judgment of possession, Joanna timely exercised her option by having her attorney notify the same attorney who had negotiated the settlement on Noe-mie II’s behalf, J. Tracy Mitchell, who also represented Noemie II in matters pertaining to Noemie’s succession dating back to 1995. Based on these particular facts, we conclude that Noemie II is judicially es-topped from asserting that Mr. Mitchell was not authorized to act on her behalf with regard to the particular property in question. The doctrine of judicial estoppel prohibits parties from deliberately changing positions according to the exigencies of the moment. The doctrine is intended to prevent the perversion of the judicial process and prevents “playing ‘fast and loose with the courts.’ ” New Hampshire v. Maine, 532 U.S. 742, 750, 121 S.Ct. 1808, 1814—1815, 149 L.Ed.2d 968 (2001) (quoting Stretch v. Watson, 6 N.J.Super. 456, 469, 69 A.2d 596, 603 (1949), rev’d in part, 5 N.J. 268, 74 A.2d 597 (1950)). Judicial estoppel “is an equitable doctrine invoked by a court within its sound discretion.” New Hampshire v. Maine, 532 U.S. at 750, 121 S.Ct. at 1815.

Further, based on the facts presented herein, we find that Joanna’s attorney, pursuant to his representative capacity, was entitled to enforce the terms of the Stipulation and the judgment of possession on her behalf. Additionally, neither the judgment granting the option nor the letter agreement that initially recognized the option in Joanna’s favor specified that notice of the exercise of the option had to be provided by Joanna rather than her attorney or that her acceptance of the offer to sell could not be communicated to the attorneys for the defendants.

“[Ajcceptance by the grantee of the offer contained in an option turns the option into a contract to sell, regardless of whether the object of the option involves movables or immovables.” Comment (b) to La. C.C. art. 2621. A contract to sell gives either party the right to demand specific performance. La. C.C. art. 2623. See also La. C.C. art.1986, which permits the granting of specific performance and damages when an obligor fails to perform an obligation to execute an instrument. Accordingly, the trial court properly concluded that Joanna was entitled to specific performance of the contract to sell.

III. CONCLUSION

For these reasons, the trial court’s judgment is affirmed. Appeal costs are assessed against defendants-appellants.

AFFIRMED.

      . The property in question is described, in pertinent part, as "Two (2) certain lots or parcel of ground situated in Section 97, T-5S, R-10-E, Southeastern Land District of Louisiana West of the Mississippi River, Pointe Coupee Parish, Louisiana, and described as LOTS RP-1 and RP-2 ...."

      . Mr. Mitchell’s letter also inquired as to whether Joanna was represented by counsel and indicated that if she were represented, he would correspond with her counsel.

      . When principal and incidental demands are tried separately, a judgment on the principal demand is a final judgment. La. C.C.P. art. 1915 A(4).

      . The Merrick brothers do not challenge Joanna’s method of acceptance of the offer. They simply assert that she was not entitled to exercise the option because she was in default at the expiration of the option term.


author: WHIPPLE, J.

text:
    Thomas Warren POUNDS v. Brandi Nicole SPEARS.
    No. 2006 CU 2375.
    Court of Appeal of Louisiana, First Circuit.
    March 23, 2007.

      Mark D. Plaisance, Baker, Norma Bee-dle, Baton Rouge, Counsel for Plaintiff/Appellant, Thomas Warren Pounds.
    Sal J. Liberto, Jr, Covington, Counsel for DefendanVAppellee, Brandi Nicole Spears.
    Before: CARTER, C.J., WHIPPLE, and MCDONALD, JJ.
   WHIPPLE, J.

| j>,This matter is before us on appeal by Thomas Warren Pounds, the domiciliary parent and father of the minor child, D.P., from a judgment of the trial court: (1) setting forth a visitation schedule for Brandi Nicole Spears, mother of the minor child; and (2) designating the child’s school and pediatrician. For the following reasons, we affirm in part, vacate in part, and remand.

FACTS AND PROCEDURAL HISTORY

D.P. was born on October 10, 2000, as a result of a relationship between Pounds and Spears. Although Pounds and Spears never married, Pounds formally acknowledged D.P. and the three lived together after his birth until April of 2004 when the parties separated. On April 22, 2004, Pounds filed a petition seeking custody of D.P. The parties reunited in July of 2004; thus, the petition was not set for hearing. The parties separated again on July 31, 2005, when D.P. was nearly five years old. On August 1, 2005, Spears began dating Barney Ritchie, whom she eventually married on October 15, 2005. After Pounds and Spears separated, Pounds again initiated proceedings seeking custody of D.P.

On November 9, 2005, the trial court rendered an interim order that D.P. live with Spears and that Pounds be allowed visitation consisting of every other weekend and every Wednesday, pending a hearing on the matter. |sThe trial court further ordered that D.P. was not to be alone with Ritchie, and that D.P. was not to ride in any car that Ritchie was driving.

Following a trial on January 30, 2006, the trial court rendered oral reasons granting Pounds and Spears joint custody of D.P., designating Pounds as the domiciliary parent, and granting Spears visitation on alternating weekends “subject to any camps or summer programs that the child is enrolled in” and alternating holidays. A judgment in conformity with the trial court’s oral reasons was signed on March 9, 2006.

On June 2, 2006, Spears filed a pleading captioned “Rule to Set/Amend Visitation, Transportation and Health Care Provider for the Minor and for Contempt,” requesting: (1) that the existing visitation schedule be amended to allow her to provide day care for D.P. during the summer; (2) that Dr. Palazzo be designated as the child’s treating pediatrician; and (3) that she not be required to travel to Hammond from Bogalusa to pick up the minor child for visitation.

14At the time the rule was filed, Spears was unemployed, was not attending school, and was residing in Bogalusa with Ritchie. Pounds had graduated from Southeastern Louisiana University with degrees in finance and accounting in December of 2005 and had obtained a full-time job in Hammond at the university. Thus, when the school year ended, Pounds had enrolled D.P. in a summer day camp program in Hammond in order to be able to accept the job at the university.

In addition to the visitation awarded by the trial court, i.e. alternating weekends and holidays, the parties had agreed that Spears would also pick up the child from school every Wednesday and keep him until 6:30 p.m., and that during the summer, Spears would pick up D.P. from day camp every Wednesday at 1:00 p.m. The parties had further agreed that when it was her scheduled weekend visitation, she would pick up D.P. on Friday at 1:00 p.m. from day camp to begin her weekend visitation. After service of this rule, when Pounds became aware that Spears was complaining about having to drive to Hammond to pick up the child, he began transporting D.P. from day camp to Bogalusa every Tuesday after work, where Spears would meet to pick him up and keep him overnight until Wednesday evening. Likewise, for Spears’s scheduled weekend visitation, Pounds would bring the child from day camp to Bogalusa on Thursday after work and Spears would keep the child until Sunday evening.

Spears’s rule was heard on July 12, 2006. Thereafter, on August 14, 2006, the trial court rendered judgment containing numerous provisions, many of which are not at issue in this appeal. However, with respect to domiciliary custody and the visitation schedule, and other matters at issue herein, the trial court ordered:

(1) That the child’s pediatrician be Dr. Palazzo;
|fi(2) That Spears’s visitation be modified to consist of Monday through Friday, except for Tuesday or Wednesday overnight, and alternating weekends from Saturday at 12:00 p.m. until Monday morning;
(3) That Pounds retain physical custody of the child at all other times including alternating weekends from Friday after work until Monday morning, on Spears’s weekends from Friday after work until Saturday at 12:00 p.m., and Tuesday overnight or Wednesday overnight every week after work;
(4) That the holidays remain as previously ordered except that Pounds be allowed as much time as possible with the child on Mondays designated as a school holiday following his having the child on a weekend or if the mother is working;
(5) That the child attend Enon- Elementary School for kindergarten; and
(6) That for first grade, the Lab School at Southeastern Louisiana University would be considered as an alternative location — to be further addressed in a pre-trial conference before scheduling.

| ^Pounds appeals, contending that because the domiciliary parent has the legal authority to make all decisions affecting the child, by ordering Pounds to live a majority of the time with Spears and specifically dictating the child’s school and physician, the trial court unlawfully stripped Pounds of his rights as the domiciliary parent and effectively made Pounds a domiciliary parent in name only. Pounds further notes that a considered custody decree can only be modified if the current custodial arrangement is deleterious to the child or the advantages to the child from the change outweigh any harm caused by the change of environment and Spears failed to demonstrate that the current decree was harmful to the child or that a change would benefit the child. Thus, he contends, the trial court committed legal error by modifying a decree issued only six months earlier.

DISCUSSION

Assignment of Error Number One

In Pounds’s first assignment of error on appeal, he contends that the trial court “erroneously stripped [him] of his rights” as domiciliary parent to make decisions affecting the child by dictating the child’s school and physician, and by ordering that the minor child reside with his mother for the majority of time.

Louisiana Revised Statute 9:335(B)(2) provides that the domiciliary parent is the parent with whom the child shall primarily reside, but the other parent shall have physical custody during time periods that assure that the child has frequent and continuing contact with both parents. Pursuant to LSA-R.S. 9:335(B)(3), the domiciliary parent has authority to make all decisions affecting the child unless an implementation order provides otherwise. All major decisions made by the domiciliary parent concerning the child are subject to review by the court upon motion of the other parent. |7However, in this judicial review, it is presumed that all major decisions made by the domiciliary parent are in the best interest of the child. LSA-R.S. 9:335(B)(3). Moreover, the burden of proving they are not in the best interest of the child is placed on the non-domiciliary parent who opposes the decision. Evans v. Lungrin, 97-0541, 97-0577 (La.2/6/98), 708 So.2d 731, 738.

Pursuant to the judgment and apparent from the trial court’s oral reasons, the trial court decided that D.P. should attend Enon Elementary School near Spears’s home in Bogalusa for kindergarten and reside with Spears during the week. The trial court further determined that for first grade, the Lab School at Southeastern Louisiana University would be considered as an alternative location, but concluded that the matter would need to be addressed in a pre-trial conference before scheduling. Accordingly, the trial court modified the visitation schedule apparently to facilitate the child’s attendance at Enon Elementary School, by providing that Spears had “visitation” with the minor child every Monday through Friday, except for Tuesday or Wednesday overnight, and alternating weekends from Saturday at 12:00 p.m. until Monday morning. However, Pounds, the domiciliary parent, retained physical custody of the child only one night per week and on alternating weekends from Friday after work until Monday morning. In sum, despite the trial court’s use of the term “visitation,” the schedule set forth by the trial court awarded Pounds, the domiciliary parent, physical custody of D.P. four week nights, eight weekend nights, and five weekend days on an average month, effectively ordered the child to primarily reside with Spears and effectively making her the actual domiciliary parent.

RWe agree with appellant that given the visitation schedule confected by the trial court to accommodate its determination that the child should attend Enon Elementary School, the child clearly does not primarily reside with the domiciliary parent, as required by LSA-R.S. 9:335(B)(2). Thus, we find the trial court erred. Accordingly, we vacate the portion of the judgment setting forth the visitation schedule and remand for the trial court to establish a visitation schedule in conformity with LSA-R.S. 9:335 and the views expressed herein.

Although we agree with Pounds that it was error for the trial court to order that the child attend school in Bogalusa when Pounds works in Hammond, given that the school year is nearly completed, we feel it would be harmful for the child to be pulled from his current classroom situation at this time and enrolled in a new school. Accordingly, on remand, the trial court shall impose such conditions necessary to ensure that the child be permitted to complete the school year at Enon Elementary School. Thus, we remand this matter to the trial court to conduct a hearing, within thirty (30) days from the date this opinion is rendered, to confect a visitation schedule for Spears that will allow D.P. to reside primarily with Pounds in accordance with the provisions of LSA-R.S. 9:335 consistent with the trial court’s previous designation of him as the domiciliary parent.

Pounds also contends in this assignment that the trial court erred in designating Dr. Palazzo as the child’s pediatrician, noting that as the domiciliary parent, he has the legal authority to make such decisions affecting the child. In support, Pounds notes that in October or November of 2005, he and Spears discussed changing D.P.’s ; pediatrician. He testified that Spears, |9who was a former employee of Dr. Palazzo, told him that for personal reasons, she wanted D.P. to be seen by someone other than Dr. Palazzo. According to Pounds, before the new LSU clinic opened, Dr. Palazzo was the only pediatrician in Bogalusa; thus, there were no other options. He further noted that Spears had accompanied him and D.P. to all three visits at the LSU clinic in Bogalusa and never voiced any complaint to him about the clinic, the physicians, or D.P.’s treatment by them. Pounds testified that overall, he was very satisfied with the physicians at the clinic and their treatment of D.P.

In designating Dr. Palazzo as the child’s pediatrician, in contravention of the decision previously made by the parties to have the child treated by a doctor at the LSU clinic, the trial court stated only that if the child was comfortable with Dr. Pa-lazzo, he saw no problem with him going there, “rather than going to some stranger.” However, this ruling ignores the fact that the child had been receiving ongoing care at the clinic. Moreover, as Pounds correctly notes, the domiciliary parent has the ultimate right to make such decisions. As such, courts should be reluctant to becoming involved in such decision-making absent a showing that a parent has improperly exercised such authority.

We agree that aside from voicing her personal preference, Spears has failed to produce any evidence to show that the child was more comfortable with Dr. Pa-lazzo, that the care being provided by the clinic was improper, or that the decision to change doctors was contrary to D.P.’s'best interest. Instead, on review, we find there was no evidence presented to rebut the | mpresumption that this decision by Pounds, which was clearly within his authority to make, was proper as a matter of fact and law. Therefore, it was error for the trial court to negate his decision under the facts of this case. See Templeton v. Templeton, 1998-2503 (La.App. 1st Cir.4/1/99), 730 So.2d 1070, 1076.

Moreover, we note that although the parties dispute whether there was discussion regarding this decision, the “communication” requirement does not abrogate the provisions of LSA-R.S. 9:335(B)(3), which grants the authority to Pounds to determine the best pediatrician for D.P., subject to judicial review. See Holland, v. Holland, 34,996 (La.App. 2nd Cir.11/6/01), 799 So.2d 849, 852. Thus, we also vacate the portion of the judgment designating Dr. Palazzo as D.P.’s pediatrician.

We find merit to this assignment.

Assignment of Error Number Two

Pounds next contends that the trial court trial court erred in modifying the considered custody decree, as Spears failed to meet the Bergeron heavy burden necessary to warrant such a modification, ie., that a change of circumstances has occurred, such that the continuation of the present custody arrangement is so deleterious to the child as to justify a modification of the custody decree, or that harm likely caused by a change of environment is substantially outweighed by its advantages to the child. See Bergeron, 492 So.2d at 1200 & 1202.

On review, we note that the August 14, 2006 judgment, by its stated terms, did not modify the existing decree of joint custody and designation of Pounds as domiciliary parent. However, as discussed above, we agree that the In judgment significantly (and improperly) modified the parties’ visitation schedule, and improperly designated the child’s primary physician, in contravention of LSA-R.S. 9:335 and the prior designation of Pounds as domiciliary parent. Because we have vacated the judgment in these respects, we pretermit further discussion of this assignment of error.

CONCLUSION

For the above and foregoing reasons, the portion of the August 14, 2006 judgment of the trial court setting forth the visitation schedule and providing for physical custody of D.P. and designating Dr. Palazzo as the child’s pediatrician, is vacated: This matter is remanded to the trial court to conduct a hearing, within thirty (30)' days from the date this opinion is rendered, to confect a visitation schedule in accordance with the provisions of LSA-R.S. 9:335 and for any necessary further proceedings consistent with the views expressed herein. Costs of this appeal are assessed against the appellee, Brandi Nicole Spears.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED WITH INSTRUCTIONS.

      . After D.P. was born, the parties lived at Pounds's mother's home and Spears's grandparent's home in Bogalusa.

      . When the parties reunited in July of 2004, they resided in a mobile home that Pounds had purchased and placed on Spears's grandparent's property until their separation in July of 2005.

      . The record shows that on October 27, 2005, Ritchie appeared with Spears before the Commissioner, on a rule for protective order filed by Pounds. The parties and Ritchie were ordered to submit to a drug screen, which Ritchie failed, testing positive for methadone, opiates, and oxycodone. Based on these results, on November 3, 2005, the Commissioner granted the restraining order sought by Pounds, prohibiting Ritchie from coming into contact with the child for sixty days, pending the custody hearing in January of 2006.
      Ritchie's lengthy criminal record, which included multiple felony drug possession convictions, two DWI convictions, disturbing the peace offenses, a simple battery charge, and a restraining order prohibiting him from harassing or contacting his ex-wife, were also introduced into evidence.
      At the conclusion of the November 9, 2005 hearing, in ordering that the minor child not be left alone with Ritchie or ride in a vehicle driven by Ritchie, the trial court stated:
      I'm going to make a few calls, and its going to be offensive probably to some of you, but I’m going to lay it out just like I see it.
      To begin with, I have a problem with Mr. Ritchie. I can't tell you who to associate with — the Court has limitations as to what they can tell people to do. I can’t tell you who to marry, who to live with or whatever.
      I can't tell you to go to school. I can't tell you what to do in your life.
      But, I can restrict exposure of a child to adults or to other children or to individuals. That’s part of my job.

      . The judgment further ordered: (1) that Spears take the child to scheduled summer programs with other children such as Bible School or summer camp; (2) that it is "recommended and strongly suggested that [Spears] obtain employment, full or part-time”; (3) that neither parent discuss custody litigation or the other parent in front of the child; (4) that neither parent talk about the custody litigation in the presence of the child and his pediatrician, or any other professional involved with the child; (5) that Spears not permit the child, her husband, or any other person to call or refer to her husband as the father or daddy of the minor child; (6) that each parent inform the other parent in ad-vanee of all activities of the child including but not limited to school functions and awards; (7) that the parties equally split the costs of school supplies and school uniforms; (8) that Spears transport the child to and from school and that Pounds has the right to take the child when he is not working; (9) that the minor child be evaluated by a mental health professional appointed by the court; (10) that the mental health professional make the decision if she finds necessary to evaluate the minor child’s parents and step-parent; and (11) that all previous judgments and orders of the court not modified by the judgment remain in full force and effect.

      . The judgment provided that the parties would continue to alternate holiday visitation.

      . Notably, the judgment is silent as to the trial court’s previous concerns about D.P.’s contact with Ritchie.

      . Spears felt that since Dr. Palazzo had been D.P.’s pediatrician since birth, she preferred that D.P. be seen by him, rather than possibly having to see a different physician at the clinic. Spears complained that she was unable to pronounce the physicians' names at the clinic, and complained that it was difficult for her to understand the doctor when he spoke.

      . See Bergeron v. Bergeron, 492 So.2d 1193 (La.1986).

      . With regard to Pounds’s claim (which may now be moot given the passage of time) that the trial court also erred in overruling his decision to enroll D.P. in summer day camp, we again note that such decision-making is within the purview of the domiciliary parent absent a showing by the non-domiciliary parent that a decision is not in the child's best interest, which Spears has failed to do herein.

      .Nonetheless, although we pretermit discussion, we note that our review of the record indicates that since the rendition of the considered decree, as set forth in the March 9, 2006 judgment, there does not appear to have been any change of circumstances sufficient to meet the Bergeron burden as set forth above.