author: STEWART, J.

text:
    Tammy Bailiff Roy ACKER, in her Capacity as Succession Representative for the Successions of Billy Gene Bailiff and Richard Leon Bailiff, Plaintiff-Appellant v. Claude H. BAILIFF, Jr., Mae Donnelle Bailiff Dailey, Patricia Ernestine Bailiff Whatley, Mary Ruth Bailiff Wischan and Randolph M. Vaughn, Defendants-Appellees.
    No. 47,160-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 27, 2012.

      Richie, Richie & Oberle, Shreveport, LA, by Margaret E. Richie, C. Vernon Richie, for Appellant Tammy Bailiff Roy Acker.
    Weems, Schimpf, Gilsoul, Haines, Landry & Carmouche, Shreveport, LA, by Brian D. Landry, for Appellee Claude H. Bailiff, Jr.
    Mae Donnelle Bailiff Dailey, In Proper Person.
    Patricia Ernestine Bailiff Whatley, In Proper Person.
    Hubert R. Davis, Arcadia, LA, for Ap-pellee Mary Ruth Bailiff Wischan.
    Randolph M. Vaughn, In Proper Person.
    Before STEWART, CARAWAY and MOORE, JJ.
   STEWART, J.

|, Sustaining an exception of prescription, the trial court dismissed this action to annul a 2006 succession judgment that placed heirs into possession of immovable property located in Bienville Parish. Because the 2006 succession judgment is not a final judgment, we vacate the trial court’s judgment granting the exception of prescription and remand for further proceedings.

FACTS

On November 9, 2010, Tammy Bailiff Roy Acker (“Acker”), as succession representative for the successions of her father, Billy Gene Bailiff (“Billy”), and her uncle, Richard Leon Bailiff (“Richard”), filed this suit to annul a judgment purportedly rendered in open court on December 16, 2004, and signed in chambers on February 15, 2006, in a matter entitled “Succession of Beatrice Stewart Bailiff, LeBain Bailiff, and Willie Mae Brewster Bailiff” and hereafter referred to as the “Bailiff succession.”

Acker’s petition alleges that the Bailiff succession judgment should be declared an absolute nullity due to lack of citation and service of process, particularly as to Richard who was subject to an order of limited interdiction. Acker’s petition also alleges a number of ill practices ..as a basis for nullity. Defendants in the nullity action include Claude H, Bailiff, Jr. (“Claude”), Mae Donnelle Bailiff Dailey, Patricia Ernestine Bailiff Whatley, and Mary Ruth Bailiff Wischan. Acker’s petition also includes a claim on behalf of Richard’s succession against Claude and Randolph M. Vaughn (“Vaughn”) for damages for breach of fiduciary duty. Claude had 12been Richard’s curator since his interdiction, and Vaughn had been appointed as curator ad hoc for Richard in the Bailiff succession.

In response to Acker’s petition, Claude filed exceptions of no cause of action and prescription. Claude asserted that Acker had no cause of action to annul the judgment for lack of service or citation because Richard, through the curator ad hoc and counsel appointed for him in the Bailiff succession proceeding, had waived his right to attack the judgment by voluntarily acquiescing in the judgment and not attempting to enjoin its enforcement as provided in La. C.C.P. art. 2003. Claude also asserted that the claim for nullity based on ill practices had prescribed under La. C.C.P. art. 2004(B), which requires such claims to be brought within one year of the discovery of the fraud or ill practices.

The exceptions were heard on June 13, 2011, by the Hon. Glen Fallin, the same judge who had signed the Bailiff succession judgment which Acker is seeking to annul. The parties introduced into evidence the entire record, which included the records of the Bailiff succession proceeding and Richard’s interdiction. After hearing the arguments of counsel and Acker’s testimony about when she discovered the alleged deficiencies in the Bailiff succession proceeding, the trial court rendered an oral ruling. The trial court concluded that, due to the many mistakes found by Acker in the Bailiff succession proceeding, she stated a cause of action for nullity. However, the trial court also concluded that her nullity action had prescribed.

I sThe trial court signed a written judgment on June 13, 2011, dismissing with prejudice Acker’s claims seeking to annul the succession judgment but reserving her right to proceed on the claim for breach of fiduciary duty. In accordance with La. C.C.P. art. 1915, the trial court designated the judgment a final judgment for purposes of appeal. Acker’s appeal is now before this court for review.

DISCUSSION

Acker argues that the trial court erred in finding her nullity action prescribed. Acker seeks to annul the Bailiff succession judgment under the provisions of La. C.C.P. art. 2001 et seq., which govern actions to nullify a final judgment. A final judgment may be annulled for a vice of form, such as where a defendant has not been served with process as required by law. La. C.C.P, art. 2002. An action to annul a judgment for a vice of form may be brought at any time. La. C.C.P. art. 2002(B). An action for annulment based on vice of form is imprescriptible.' However, La. C.C.P. art. 2003 bars a “defendant who voluntarily acquiesced in the judgment, or who was present in the parish at the time of its execution and did not attempt to enjoin its enforcement” from annulling a judgment for vices of form under La. C.C.P. art. 2002.

A final judgment may also be annulled if it was obtained by fraud or ill practices. La. C.C.P. art. 2004(A). But such actions must be brought “within one year of the discovery by the plaintiff in the nullity action of the fraud or ill practice.” La. C.C.P. art. 2004(C).

|4The trial court’s judgment dismisses with prejudice Acker’s claims to annul the Bailiff succession judgment. The trial court sustained Claude’s exception of prescription, by which he asserted that Ackeris claims alleging ill practices were prescribed under La. C.C.P. art. 2004(B). The trial court denied Claude’s exception of no cause of action based on La. C.C.P. art. 2008 and by which he sought dismissal of Acker’s claims to annul the judgment for vices of form under La. C.C.P. art. 2002. As set forth above, actions for nullity under La. C.C.P. art. 2002 are imprescriptible; only actions for nullity under La. C.C.P. art. 2004 are subject to a one-year prescriptive period. Therefore, it was legal error for the trial court to dismiss Acker’s action for nullity for vices of form under La. C.C.P. art. 2002 on an exception of prescription.

As noted above, actions for nullity under La. C.C.P. art. 2001 et seq., apply to final judgments. La. C.C.P. art. 1911 requires that “every final judgment shall be signed by the judge,” except as otherwise provided by law. This has been interpreted to mean that the judge before whom the case was tried must sign the judgment. Davies v. Johnson Controls, 36,086 (La.App.2d Cir.3/14/02), 810 So.2d 1281; Louisiana Paving Co., Inc. v. St. Charles Parish Public Schools, 593 So.2d 892 (La.App. 5th Cir.1992). A judgment signed by another judge is considered invalid. Davies, supra. Moreover, the signing of a judgment by a judge who did not hear the case, and is not otherwise authorized by law to sign the judgment, is a “fatal defect.” Mullins v. Mississippi Valley Silica Co., Inc., 2008-0330 (La.App.4th Cir.3/20/08), 982 So.2d 209; Louisiana Paving, supra. Until the judge Lwho conducted the trial signs the judgment, there is no final judgment. Ourso v. Ourso, 482 So.2d 824 (La.App. 4th Cir.1986), writ denied, 484 So.2d 139 (La.1986).

Attached to Acker’s petition and introduced into evidence was the record of the Bailiff succession proceeding. The Bailiff succession petition was filed on September 29, 2004, in the Second Judicial District Court and placed on the probate docket. Judge Fallin signed an order that date setting a show cause hearing for October 14, 2004. As shown by the minutes, the show cause hearing before Judge Fallin was upset and continued without date on the motion of counsel for the succession, Jonathan M. Stewart (“Stewart”). On a motion filed December 7, 2004, the trial court appointed an attorney, Billy Rex Harper (“Harper”), to represent Richard in the succession proceeding, which was reset for December 16, 2004. The order appears to have been signed by Judge Fallin.

The minutes of December 16, 2004, show that the succession hearing came before the Hon. Jimmy Teat. The minute entry states:

The Rule for Declaration of Ownership came on for hearing as fixed. Jonathan M. Stewart, attorney for the succession; S. Judd Tooke, attorney for the defendants; Billy Rex Harper, Jr., attorney for Richard Leon Bailiff. The parties stipulated to the admission of documents and percentages of ownership. A denial was filed on behalf of Richard Leon Bailiff by curator.

The record does not identify or include any of the documents as referred to in the minutes. However, the record does include an answer filed by Vaughn, Richard’s curator, as well as an answer filed the day of the hearing by Harper, who denied the allegations of the succession petition on behalf of Richard.

| fiOver a year later, Judge Fallin signed a judgment in chambers on February 8, 2006. Referring to the hearing on December 16, 2004, before Judge Teat, the judgment states:

The Court, after a pre-trial conference, considering the documentary evidence offered by plaintiffs and the stipulation of plaintiffs and defendants is of the opinion that the law and evidence entitles the parties to a declaratory judgment finding that the property which is the subject of these successions is owned in the percentages set forth héreinbelow, and that the parties are entitled to Judgment as set forth herein, and/or the reasons orally assigned.

(Emphasis added.) The judgment recognizes the ownership of the six heirs, fixes their ownership interests, and places them into possession of the 38-acre tract of immovable property all as prayed for in the Bailiff succession petition. The judgment reserves the right of the heirs to partition the property.

The prepared judgment was forwarded to Judge Fallin accompanied by a letter from Stewart. The letter, which is dated February 8, 2006, states in part:

At the trial, the parties stipulated the entry of certain records as evidence referred to in the Petition and the plaintiffs and Billy Gene Bailiff stipulated through their attorneys to the ownership as set forth in the Petition being correct.
Subsequently the parties attempted to resolve the entire matter |7at issue, including the ownership and other issues, but were unable to do so. Accordingly, I enclose a Judgment in accordance with the Court’s ruling on December 16, 2004, for your consideration and execution.

Judge Fallin addressed his signing of the Bailiff succession judgment at the hearing on the exceptions filed by Claude in response to Acker’s nullity action. Judge Fallin explained that because Stewart sent the letter to him, he did not research to determine whether it had been his case. He assumed the attorney would know which judge heard the matter. Therefore, he signed the judgment submitted by Stewart.

Review of the Bailiff succession proceedings shows that the only hearing was before Judge Teat on December 16, 2004. The minutes from the hearing do not indicate that Judge Teat made any oral ruling or took the matter under advisement. Over a year later, Judge Fallin signed a judgment on the matter that purported to reflect the ruling of the court from December 16, 2004. We must conclude that not only was the 2006 succession judgment signed by a judge who did not hear the matter, but also that the judge who heard the matter did not rule upon it. Under these circumstances, the “judgment” signed by Judge Fallin on February 15, 2006, is not a final judgment. His signing the judgment on the basis of Stewart’s representations and having not heard the matter constitutes a fatal defect that renders the purported judgment invalid.

The South ½ of the Northwest A and the South ½ of the Northeast A of the Northwest ¼ of Section 4, Township 15 North, Range 8 West, Bienville Parish, Louisiana, LESS AND EXCEPT therefrom a tract of land containing 2 acres, more or less, conveyed by Claude H. Bailiff, Sr. to Harold M. Whatley, by Deed recorded in Conveyance Book 324, at Page 90, and described as beginning at the Southwest corner of the Northeast A of the Northwest A of Section 4, Township 15 North, Range 8 West, and run North 660 feet to the point of beginning: Thence run East 140 yards, thence run South 70 yards, thence run West 140 yards, thence run North 70 yards to the point of beginning.

This ruling is in line with jurisprudence holding judgments signed by the wrong judge to be invalid and to have a fatal defect. In Ledoux v. Southern Farm Bureau Cas. Ins. Co., 337 So.2d 906 (La.App. 3d Cir.1976), Judge Joseph LaHaye tried a personal injury action, took the case 18under advisement, and then filed his written reasons for judgment in open court. However, the written judgment was signed and rendered by Judge Garland Pavy, who had not discussed the judgment with Judge LaHaye or read his reasons for judgment. When the judgment was appealed, the court determined that Judge Pavy did not have authority to render and sign the judgment and remanded for a proper judgment to be signed. The court rejected the arguments that the signing of the written judgment was merely a ministerial act, that the signing was authorized under the inherent judicial power granted under La. C.C.P. art. 191, or that the signing was authorized because Judge Pavy was the duty judge that day.

The Ledoux reasoning was followed in Louisiana Paving, swpra, where the hearing judge took the matter under advisement, issued a written opinion and requested that the attorney prepare the judgment. However, the written judgment was signed by a different judge who had not considered the merits of the case. The fifth circuit annulled the judgment and remanded for a judgment to be signed by the correct judge. The appellate court noted that the improper signing was “not a informality, irregularity or misstatement” subject to correction by the trial court under La. C.C.P. art. 2088(4). Instead, it was a “fatal defect.”

The same result was reached by the first circuit in Employers Nat. Ins. Co. v. Second Injury Bd., 95-1756 (La.App.lst Cir.4/4/96), 672 So.2d 309, and by this court in Davies, supra, both workers’ compensation cases wherein the judgments signed by judges who did not hear the matters were determined to be invalid and annulled on appeal. Also, in State v. | gWashington, 09-618 (La.App.5th Cir.12/29/09), 30 So.3d 856, the fifth circuit held a judgment on a motion to set aside heard and denied by one judge but signed by another to be an absolute nullity. None of the above cases referenced La. C.C.P. arts. 2002 or 2004 in annulling or invalidating judgments not signed by the correct judge.

In Ourso, supra, the husband in an alimony dispute sought to rely on a judgment reflecting the parties’ stipulation to a $300 support obligation. The hearing at which the stipulation was entered took place on March 30, 1983, before Judge DiRosa, but Judge Roberts signed the written judgment on May 25, 1984, after the wife had filed a new rule seeking an increase in alimony. The fourth circuit refused to allow the husband to rely on the erroneously signed judgment in opposing the wife’s alimony claim. The court found that the judgment had never been finalized because it had not been signed by Judge DiRosa. The court stated, “Until the judgment is signed by the judge who conducted the trial, there is no final judgment.”

Here, too, there is no final judgment. No judgment has been signed by the hearing judge, Judge Teat. Unlike most of the cases cited above, wherein the hearing judge either made a ruling on the record or provided written reasons, the record here does not show that Judge Teat ruled on the matter as indicated in the written judgment submitted by Stewart and signed by Judge Fallin. The facts here are more egregious than those in the cases discussed above. Here, we have the signing of a judgment by a judge who did not hear the matter and where the record shows no ruling by the hearing judge. These combined factors rob the purported final judgment of any 110indicia of reliability and mandate a finding that no final judgment has been rendered in the Bailiff succession matter.

In Bankers Ins. Co. v. State, 32,460 (La.App.2d Cir.10/27/99), 743 So.2d 870, a bond forfeiture was ordered by Judge Robert Kostelka but signed by Judge John R. Harrison. In an action to nullify the bond forfeiture judgment, the trial court ruled in favor of the plaintiff finding that the failure of Judge Kostelka to sign the judgment was a fatal defect. On appeal, this court agreed that the improper signing was a defect, but found that the plaintiff would have to prove that the judgment resulted from some ill practice under La. C.C.P. art. 2004. None of the grounds for an absolute nullity under La. C.C.P. art. 2002 applied.

Bankers, supra, which unlike this case involved a bond forfeiture judgment in a criminal matter, applied the provisions governing actions for nullity of final judgments without considering that a final judgment is one that is signed by the correct judge. Absent this necessary requirement under La. C.C.P. art. 1911, there is no final judgment. If a “judgment” not signed as required by La. C.C.P. art. 1911 is not considered a final judgment on direct appeal, it cannot be considered a final judgment simply because there was no direct appeal wherein the fatal defect would have been discovered and corrective measures ordered. Under the jurisprudence of Ledoux, supra, and the cases that follow it, judgments signed by a judge other than the hearing judge are invalid and not final. Application of this rule is of utmost importance here where the hearing judge did not rule on the matter and where the purported judgment was signed by a judge who did not hear luthe matter or even review the record. We find that such judgments are not final judgments.

While there are exceptions allowing a judge who did not hear a matter to sign a judgment, none apply here. Under La. C.C.P. art. 253.3, a duty judge is permitted to hear and sign specified orders and judgments, including certain uncontested matters and unopposed judgments recognizing heirs or legatees and sending them into possession. It does not appear that Judge Fallin signed the judgment as duty judge. The record shows that the judgment and accompanying letter from Stewart were sent to Judge Fallin, who had signed some orders in the Bailiff succession matter but had not conducted the hearing on December 16, 2004. Also, the Bailiff succession pleadings and minutes show that the matter was not unopposed. For this reason as well, the signing by Judge Fallin was not authorized under La. C.C.P. art. 194, which provides for the signing of specified orders and judgments in chambers. Nor was this a case involving a successor judge. See La. R.S. 13:4209.

CONCLUSION

For the reasons explained in this opinion, we find that no final judgment has been rendered in the Bailiff succession proceeding. In light of this finding, we vacate the trial court’s judgment and remand for further proceedings. Costs of appeal are assessed against the defendant, Claude H. Bailiff, Jr.

VACATED and REMANDED.

      . For identification purposes, the immovable property that is the subject of the Bailiff succession proceeding is described as follows:


source: Caselaw Access Project

author: BROWN, Chief Judge.

license: Public Domain

text:
    Sherri Renee MOORE, Plaintiff-Appellee v. Michael Ray STEWART, Defendant-Appellant.
    No. 47,206-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 27, 2012.

      Culpepper & Carroll, Jonesboro, LA, by Bobby L. Culpepper, for Appellant, Michael Stewart.
    Richard L. Fewell, Jr., for Appellee, Sherri Moore; and Third Party Appellee, Joseph Ford.
    Before BROWN, STEWART, and SEXTON (Pro Tempore), JJ.
   BROWN, Chief Judge.

| ] Defendant, Michael Ray Stewart, appeals from an adverse judgment awarding general and special damages to plaintiffs, Sherri Renee Moore and Joseph Ford. For the reasons set forth herein, we reverse in part and amend in part the judgment of the trial court, and as amended, affirm.

Facts and Procedural History

This case involves a fight between a husband (defendant) and wife (plaintiff, Moore) and her boyfriend (plaintiff, Ford). The facts were disputed at trial with both plaintiffs and defendant claiming that the other party or parties were the aggressor.

Plaintiff, Sherri Renee Moore, married defendant, Michael Ray Stewart, on December 28, 2007. This was Moore’s fourth marriage. On December 30, 2008, the couple separated. Moore began dating Joseph Ford in February 2009 but ended the relationship after only a month in an attempt to reconcile with Stewart. Following the couple’s initial separation, defendant hired a private investigator who obtained evidence of Moore’s and Ford’s relationship. Moore and Stewart began attending marriage counseling, and at a session on April 27, 2009, Moore stated that she told Stewart that she wanted to end the relationship.

After the session, Stewart went to Moore’s house in West Monroe, the former matrimonial domicile, and waited outside. The house was Moore’s separate property, but Stewart had paid the house notes during the marriage. When Moore returned home, the spouses talked. Moore testified that they discussed the ending of she and Stewart’s relationship and were clear that it was over. Defendant, however, claimed that Moore agreed to 12continue attending counseling and working on their marriage. Stewart, who was working in Shreveport, left to return to his apartment in Bossier City. Before leaving, he testified that he gave Moore $1,800 in cash for bills and groceries.

After defendant left, Moore called Ford, told him that she had ended her marriage and asked him to come over to the house. He was at a Taco Bell restaurant and brought over tacos.

Defendant testified that, while driving, he realized that he had left his work provided cell phone at Moore’s home and needed to retrieve it. Thus, he turned around and returned to Moore’s house. Defendant parked behind Ford’s car. Upon entering the house, defendant demanded that Ford “step outside,” telling him, “we have something to settle.” Ford testified that he told defendant that was not necessary. Ford then saw Stewart pull a knife with a five-inch blade from out of his pocket. Ford ran into an office to the right of the entryway and grabbed a queen size mattress, placing it in the doorway to protect himself. Defendant stabbed the mattress, which Ford then released. Ford and Moore backed into the office with defendant.

Plaintiffs testified that defendant, wielding the knife, then held them captive in the office while screaming and threatening to kill them. Plaintiffs claimed that Stewart began striking Moore in the face. Moore could not recall exactly how many times she was hit, but Ford testified that it was “eight or ten times.” At some point, defendant and Ford had an exchange about whether Ford attended church. Defendant then allowed Ford to leave.

| immediately after getting in his truck, Ford called 911. Police later arrived at Moore’s home and arrested defendant.

Defendant testified that when Ford refused to leave, defendant attempted to hit him, which caused Ford to protect himself with the mattress. Defendant denied that he pulled the knife intentionally. He claims that while kicking the mattress, the knife fell out of his pocket. Defendant contended that he used the knife in an attempt to cut through the mattress. He testified that the knife was still in the mattress when Ford released it.

With the mattress removed from the doorway, defendant alleges that Ford ran into a corner and pulled a filing cabinet in front of himself. Defendant testified that he moved to “kick the filing cabinet off of him” when “all of the sudden there was something in my face right there and I just swung.” Defendant claimed that Moore had come to aid Ford and “stuck that Taco Bell sack up in my face.” Stewart testified that he only struck Moore twice to defend himself and stopped once he realized whom he was hitting. Stewart maintains that plaintiffs were free to leave anytime during the encounter and, in fact, he was trying to get Ford to leave.

After Ford left, defendant helped Moore clean herself so they could go to a doctor. While helping her, defendant claimed that Moore was repentant and grateful to him for looking after her. Stewart contended that although he was arrested, Moore did not wish to press charges against him. LHowever, both plaintiffs later obtained a protective order. Moore testified that her medical bills were paid by defendant’s insurance.

On April 25, 2010, two days before prescription would have run, Moore filed suit against Stewart. On July 2, 2010, Stewart filed his “Answer and Reconventional Demand.” Therein, he alleged that Moore was the aggressor in the incident, and that he suffered compensable pain and suffering as a result. He also made a third party demand against Ford, alleging that Ford had alienated the affections of Moore for Stewart and should “respond in monetary damages for the same.” Ford answered the third party demand on July 23, 2010, and also made a reconventional demand against Stewart, alleging that he experienced pain, suffering and mental anguish as a result of Stewart’s actions.

A bench trial was held on August 8, 2011. On August 26, 2011, the trial court issued its Reasons for Judgment and Judgment in a single document, finding in favor of plaintiffs. We note that La. C.C.P. art. 1918 provides that “a final judgment shall be identified as such by appropriate language. When written reasons for judgment are signed, they should be set out in an opinion separaté from the judgment.” La. C.C.P. art. 5051, however, provides, “[t]he articles of this Code are to be construed liberally,. and with due regard for the fact that rules of procedure implement the substantive law and are not an end in themselves.” See Hinchman v. Int’l Bhd. of Elec. Workers, Local Union # 130, 292 So.2d 717 (La.1974); see l^also, Martin v. JKD Investments, LLC, 42,196 (La.App.2d Cir.06/20/07), 961 So.2d 575.

The court held defendant’s attack on plaintiffs “to be unwarranted and unprovoked.” The court awarded damages to both Ford and Moore, as follows:

... in favor of plaintiff Sherri Renee Moore, and against Michael Ray Stewart, in the following sums:
A. General damages owed Ms. Moore .$80,000.00
B. Special Damages owed Mr. Wilson(sic)
Past Medical Expenses .$5,854.75
Future Medical Expenses .$10,500.00
and,
... in favor of Joseph Ford and against Michael Ray Stewart, general damages in the sum of $5,000.00

Defendant filed a motion for new trial on August 31, 2011, which was denied. Thereafter, defendant filed this timely appeal.

| ⅛Discussion

Liability

Defendant contends that the trial court erred in finding him responsible for any injuries suffered by plaintiffs. In civil cases, a trial court’s findings of fact will not be disturbed on appeal unless the reviewing court finds that they are clearly wrong or manifestly erroneous. Stobart v. State through Dept, of Transp. and Development, 617 So.2d 880 (La.1993). If the findings are reasonable in light of the record reviewed in its entirety, an appellate court may not reverse, even though convinced that, had it been sitting as the trier of fact, it would have weighed the evidence differently. Stobart, supra.

Where two permissible views of the evidence exist, the fact finder’s choice between them cannot be manifestly erroneous. Stobart, supra; Wimberly v. Giglio, 46,000 (La.App.2d Cir.01/26/11), 57 So.3d 389. Further, when findings are based upon determinations regarding credibility of witnesses, the manifest error-clearly wrong standard demands great deference to the trier of fact’s findings. Stobart, supra; Easter v. Direct Ins. Co., 42,178 (La.App.2d Cir.05/09/07), 957 So.2d 323.

In the case sub judice, the trial court applied La. C.C. art. 2315, which provides that every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.

As in most romantic triangles, the antagonists give differing accounts of what occurred. On appeal, defendant offers only his trial testimony as evidence that the trial court erred in its findings. Contrary to the assertions |7of Moore, Stewart claims that the couple reconciled after the therapy session at which Moore told him she wished to end the marriage. He argues that it was Ford who refused to leave Moore’s home. His efforts with his knife were meant only to cut through a mattress so that he could make Ford leave. He further contends that Moore was the aggressor in the attack, provoking him with a sack of fast food.

Plaintiffs both testified that Stewart was attempting stab Ford’s hands. Sgt. Darrell Johns of the Ouachita Parish Sheriffs Office testified that there were cuts in the mattress Ford had been holding. Plaintiffs also testified that defendant held them captive at knifepoint, threatened to kill them, and repeatedly struck Moore in the face while inside the office. Stewart himself admitted that he struck Moore at least twice, though he claims it was reactive, while Ford testified that Moore was hit 8 or 10 times.

The trial court chose to credit the testimony of plaintiffs over that of defendant. We are therefore constrained to hold that there was a reasonable basis for the trial court’s findings and those findings were not clearly wrong.

Quantum

Defendant asserts that the trial court erred in awarding excessive damages to plaintiffs. The trier of fact has much discretion when assessing damages in cases of offenses, quasi offenses and quasi contracts. La. C.C. Art. 2324.1.

General Damages

The trial court awarded Moore $30,000 and Ford $5,000 in general damages. General damages involve mental or physical pain and suffering, | ^inconvenience, loss of intellectual or physical enjoyment, or other losses of lifestyle which cannot be measured with mathematical certainty. Duncan v. Kansas So. Ry. Co., 00-0066 (La.10/30/00), 773 So.2d 670; Pittard v. Lewis, 45,412 (La.App.2d Cir.08/11/10), 46 So.3d 202. The trier of fact is given great and even vast discretion in setting general damage awards. Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994); Pittard, supra.

The role of an appellate court in reviewing a general damages award is not to decide what it considers to be an appropriate award but rather to review the exercise of discretion by the trier of fact. Bouquet v.. Wal-Mart Stores, Inc., 08-0309 (La.04/04/08), 979 So.2d 456. Applicable to the instant case is Reck v. Stevens, 373 So.2d 498, 505 (La.1979), where the supreme court held that:

A general review of the jurisprudence indicates that our courts balance many factors in assessing damages in assault and battery cases. These include, besides physical pain and suffering, the factors of provocation, reasonableness of force used, attendant humiliating circumstances, sex of victim, mental distress, etc. There is no rule or standard of law fixing or establishing the amount of recovery and each ease consequently must rest on its own set of facts.

If a reviewing court finds that an award constitutes an abuse of discretion, the award may then be raised or lowered only to the highest or lowest point reasonably within the discretion of the trier of fact. Davenport v. Giles, 46,606 (La.App.2d Cir.11/02/11), 80 So.3d 492.

Though her nose was not broken, Moore did suffer a deviated septum, septal hema-toma, and bruising. One of her treating physicians noted that surgery would be needed; however, a second physician did not believe ^surgery would be necessary. At the time of trial, 2 ⅜ years after the incident, Moore had not had surgery. Moore stated that she now suffers constant sinus problems, has loss of sense of smell, and is no longer able to enjoy many of her favorite outdoor pastimes. She testified that friends and acquaintances commented to her that the attack changed her facial appearance, making her seem older.

Dr. E.H. Baker, a medical psychologist and clinical neuropsychologist, diagnosed Moore as suffering from post traumatic stress disorder (“PTSD”) caused by the attack. Moore’s attorney sent her to Dr. Baker almost two years after the attack. At the time of the incident, Moore was 51 years old and had been married four times. She gave a history that she was both physically and sexually abused by her parents, that she was depressed “most of her life and suicidal for much of it.” She reported that due to attention and focus problems, she started taking Adderall approximately three years ago, which was before the incident with Stewart. Moore had five therapy sessions with Dr. Baker.

We note Moore’s testimony that defendant had not been physically abusive to her in the past. She did admit, however, that Ford’s drinking impacted their relationship, and that Ford had physically grabbed and bruised her arms once. She is now living with Ford. Although not a justification for defendant’s actions, for Moore to call her former paramour to come visit on the day she told defendant that she wanted to end their marriage could certainly be considered to be provocation.

|10As to the PTSD, Dr. Baker related it to both the attack and the abuse Moore suffered as a child. He was not told of other abusive relationships. Defendant stated that Moore told him of abuse by a former husband.

Moore and Ford have lived together since the incident and have moved to another location. They both keep armed with guns constantly. Moore made numerous calls to the sheriffs office concerning defendant. Dr. Baker found that Moore was “hypervigilant.”

In Sumrall v. Sumrall, 612 So.2d 1010 (La.App. 2d Cir.1993), this court affirmed a general damage award of $30,000 to a plaintiff who suffered a deviated septum, an indentation in the cheekbone and a concussion due to a battery from her estranged husband after he found her having an affair with another man. Likewise, in Lowery v. Savana, 33,384 (La.App.2d Cir.05/10/00), 759 So.2d 1020, this court affirmed a $35,000 general damage award to a plaintiff whose ex-boyfriend cursed, beat and threatened to kill her for over an hour after telling him she wished to end the relationship and who later developed PTSD as a result.

Under the circumstances of this case, we cannot find that the trial court abused its almost unlimited discretion in awarding Moore $30,000 in general damages.

Defendant contests the $5,000 dollar award to Ford on the grounds that there was no physical contact between himself and Ford during the altercation and Ford failed to show compensable emotional injuries.

[1TIn order to recover mental distress damages where no physical injury was suffered by a victim, the plaintiff must show an especial likelihood of genuine and serious mental distress resulting from conduct directed at him or her. Moresi v. State Through Dept. Of Wildlife and Fisheries, 567 So.2d 1081, 1096 (La.1990); Jenkins v. Washington & Wells, L.L.C., 46,825 (La.App.2d Cir.01/25/12), 86 So.3d 666, writ denied, 12-0427 (La.04/09/12), 85 So.3d 705. The supreme court has held that this requirement, in the absence of contemporaneous physical injury, bodily injury or property damage, “guarantees that the claim is not spurious.” Moresi, 567 So.2d at 1095.

Defendant’s conduct was clearly directed at Ford, and, despite suffering no physical injuries, it is reasonable to believe that Ford was actually in fear for his personal safety. Defendant, by his own admission, attempted to engage Ford physically when he threw a punch at Ford after entering Moore’s home. He then pulled a knife from his pocket, causing Ford to flee for safety behind a spare mattress. Defendant further held Ford captive at knife-point and threatened to kill him. In light of these attendant circumstances, we cannot say that the trial court abused its discretion in awarding $5,000.

Special Damages

Finally, defendant contends that the trial court erred in awarding Moore a total of $15,854.75 in special damages. Special damages are those which either must be specially pled or have a ready market value, that is, the amount of the damages supposedly can be determined with relative 112certainty, such as the plaintiffs medical expenses incurred as result of the tort. Wainwright v. Fontenot, 00-0492 (La.10/17/00), 774 So.2d 70; Moody v. Blanchard Place Apartments, 34,587 (La.App.2d Cir.06/20/01), 793 So.2d 281, writ denied, 01-2582 (La.12/14/01), 804 So.2d 647.

The trial court awarded Moore $5,354.75 for past medical expenses. At trial, defense counsel objected to the introduction of exhibits detailing Moore’s past medical expenses explaining that:

rat’s my understanding that my client had her covered by medical insurance, so there were medical expenses, but there should not have been any that were not covered by insurance, so that would be our objection.

The trial court initially agreed that “someone can’t double dip” on damages. Plaintiffs’ counsel argued that the collateral source rule should apply in this case, meaning insurance coverage should not lighten the liability of defendant. Rather than sustaining or overruling the objection, the trial court allowed the introduction of the medical bills but opined that it would “make a ruling on it at a later time.” The trial court made no further specific ruling on this point before awarding Moore the full amount of damages she itemized in its judgment.

The collateral source rule is a rule of evidence and damages that provides that a tortfeasor may not benefit, and an injured plaintiffs tort recovery may not be reduced, because of monies received by the plaintiff from sources independent of the tortfeasor’s procuration or contribution. Bozeman v. State, 03-1016 (La.07/02/04), 879 So.2d 692. Thus, under the collateral source rule, payments received from an independent source are not deducted from the award the aggrieved party would otherwise receive lsfrom the wrongdoer. Id. However, a payment made by a tortfeasor or by a person acting for him to a person whom he has injured is credited against his tort liability. Id.

Here, defense counsel claimed that all of Moore’s medical bills had been covered by defendant’s insurance. Moore was questioned about her past medical expenses during cross-examination:

Q. On the medical expenses you were covered by medical insurance by the employer of Mike. Were you not?
A. Yes, sir. I was.
Q. Do you have any record of any medical expenses that were not paid by insurance?
A. Yes, sir.
Q. Can you tell me how many dollars worth of medical insurance — medical bills were not paid by the insurance company?
A. Well, my deducible and co-insurances.
Q. I understand that.
A. I wouldn’t know the true dollar amount.

Neither Moore or Stewart introduced any other evidence regarding what the insurance covered and what Moore had to pay out of pocket. However, the burden of proof was on plaintiffs. The evidence showed only that Moore’s medical costs were covered by insurance for which defendant obtained and funded. Therefore, the award of past medical expenses is reversed.

Future medical expenses are likewise a legitimate item of damages. Guillory v. Avondale Shipyards, Inc., 448 So.2d 1281 (La.1984); Sumrall, supra. Future medical expenses, like any other damages, must be established with some degree of certainty and such an award cannot be [ 14predicated on mere speculation. Brandao v. Wal-Mart Stores, Inc., 35,368 (La.App.2d Cir.12/19/01), 803 So.2d 1039, 1047, writ denied, 02-0493 (La.04/26/02). Awards for future medical expenses that may or may not be incurred require medical testimony that they are indicated and setting out their probable cost. Menard v. Lafayette Ins. Co., 09-1869 (La.03/16/10), 31 So.3d 996. The plaintiff must show that more probably than not, these expenses will be incurred. Id.

Defendant disputes that Moore is entitled an award for any future medical expenses. Moore submitted exhibits to the trial court outlining future treatments made necessary by defendant’s attack. Plaintiffs listed that Moore required new dentures and needed to undergo several procedures to repair her deviated septum.

Defendant contends that his two punches did not cause damage to Moore’s dentures. He argued that Moore had broken them before his attack. The trial court chose, however, not to credit his testimony. Accepting the trial court’s finding of fact, we affirm the award of $1,550 future damages for dentures.

Defendant also testified, contrary to plaintiffs assertions, that Moore had suffered sinus problems prior to his battery. Defendant again notes that Moore did not suffer a broken nose. However, Moore suffered clear injuries. Dr. Sally Sartor, who twice drained Moore’s septal hematoma, noted that Moore’s injuries represented “a significant trauma to the nose,” but did not believe she needed surgery. Dr. René Dugas, however, recommended that plaintiff undergo a septo-plasty, frontal sinus exploration, | ^and partial turbinate excision. Although these procedures were covered by defendant’s insurance, Moore has not chosen to have the surgeries. We therefore reverse the award for future surgery in connection with the injury to the nose.

The remaining $8,000 dollars of the award can be reasonably attributed to testimony from Dr. Baker in which he opined that Moore was still suffering from PTSD when she stopped seeing him. He further testified that Moore’s condition was not likely to permanently improve without continued therapy. In an exchange with Moore’s counsel during trial, Dr. Baker agreed that between 15 and 20 additional sessions could be required. He then set out the cost of his treatment to be $150 per session, 20 sessions at $150 each would equal a total of $3,000. Moore did not list the cost of continued therapy in her exhibits and has not sought further therapy. Additionally, this treatment can be attributed to a lifetime of depression with suicidal ideation. Therefore, given the evidence contained in the record it was error to award this cost for future therapy.

Conclusion

For the reasons set forth above, the judgment of the trial court is amended to replace Mr. Wilson with the proper judgment creditor, Sherri Renee Moore. The trial court’s awards of special damages for past and future medical expenses to plaintiff, Sherri Renee Moore, are reversed, excepting the award for future damages to Sherri Renee Moore for dentures in the amount of $1,550. The general damages awards are affirmed. The judgment, in all other respects, is affirmed. Costs of appeal are assessed one half to appellees and one half to appellant.

J^REVERSED IN PART, AMENDED IN PART, AND AS AMENDED, AFFIRMED.

      . Criminal charges were filed against Stewart and were still pending at the time of trial.

      . To avoid confusion, the court should closely follow C.C.P. art. 1918.

      . Defendant also argues that the trial court substantively erred when it recorded a total of $15,854.75 as "Special Damages owed Mr. Wilson” in the judgment. Defendant notes that there is no person connected with the suit by that surname. Plaintiffs argue that this was a minor typographical error and the award was clearly intended for Moore.
      In Tunstall v. Stierwald, rather than affirm the original judgment and allow "a judgment to stand in favor of a non-party,” the Supreme Court amended the original judgment, pursuant to La. C.C.P. art. 2164, deleting the nonexistent company in favor of the proper party. 01-1765 (La.02/26/02), 809 So.2d 916, 921.
      An appellate court shall render any judgment which is just, legal, and proper upon the record on appeal. La. C.C.P. art. 2164. It is clear from the record that the special damages awarded by the trial court were meant for Ms. Moore and not Mr. Wilson.

      . The trial court sustained an objection to questions by Stewart's attorney to Moore concerning abuse by other husbands.


text:
    Melissa C. DIAMAND, Plaintiff-Appellee v. Bruce DAVIS, Kathy Davis and David Z. Diamand, Defendants-Appellants.
    No. 47,332-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 27, 2012.
    Rehearing Denied July 23, 2012.

      Joel L. Pearce, Shreveport, LA, for Defendant-Appellant David Z. Diamand.
    Melissa C. Diamand, In Proper Person.
    Susan D. Scott, Shreveport, LA, for Defendants-Appellees Bruce Davis and Kathy Davis.
    Before BROWN, STEWART and SEXTON (Pro Tempore), JJ.
   STEWART, J.

|, David Diamand (hereafter referred to as “David”) is appealing a judgment granting Bruce and Kathy Davis (hereafter referred to as “the Davises”) joint custody of C.D. with David, and further designating the Davises domiciliary custodians with whom C.D. is to reside. For the reasons that follow, we affirm.

FACTS

David and Melissa Diamand (hereafter referred to as “Melissa”) were married in California on July 13, 2000. Their daughter, C.D., was born on January 11, 2001. She is currently 11 years old. David and Melissa separated when C.D. was about four months old, and Melissa and C.D. moved to Bossier City. They subsequently moved to Arizona where Melissa obtained a medical residency. David and Melissa obtained a divorce in 2005. On February 27, 2002, the County of Los An-geles — Department of Children and Family Services advised David that Melissa was involved in a car accident and arrested for driving under the influence and child endangerment in the state of Arizona. After Melissa was arrested, C.D. was placed in foster care. Apparently, Melissa began taking prescription medication for a partial knee replacement, and began abusing the prescription drugs. Melissa lost her medical residency.

C.D. was subsequently given to David. After a couple of months with C.D. in California, David went to federal prison for six years for securities fraud in 2002.

C.D. was placed in foster care for about four months before the Davises, Melissa’s parents, were able to have the court place C.D. with |2them. She has been in their custody since she was about 15 months old. C.D. has resided in Louisiana with the Davises. The Davises were granted guardianship of C.D. by the children’s court in California in 2004. The Davises have attempted to adopt C.D., but were unsuccessful.

In May 2007, Melissa filed for and obtained custody of C.D. David objected based on a jurisdictional issue, and the Louisiana trial court found that Louisiana had jurisdiction over C.D.’s custody, since she had lived in Louisiana and neither parent nor C.D. lived in California. C.D. continued to live with the Davises. In 2007, Melissa also resided in Louisiana with the Davises.

David was released from prison in 2008, and returned to California. On October 20, 2009, he filed paperwork in Bossier Parish, seeking full legal and physical custody of C.D. The Davises intervened, seeking sole custody of C.D. and child support. The Davises alleged that substantial harm would result if either parent was granted custody of C.D.

On November 9, 2009, the trial court granted the Davises and David joint custody of C.D., without prejudice, and the Davises were designated domiciliary custodians with whom C.D. was to reside. David was granted specific periods of physical custody, including every Thanksgiving, Christmas, Spring Break holiday, and six weeks in the summer. Melissa was granted visitation with C.D. at the Davises’ home and under their supervision. The Davises’ request for child support was denied.

In August 2011, David filed a rule for change in custody. In December 8, 2011, the trial court issued a judgment awarding David joint | ¡¡custody with the Davises, who were named domiciliary custodians.

David is now appealing this judgment.

LAW AND DISCUSSION

Jurisdiction

David asserts three assignments of error in his appeal. In the first assignment, he asserts that the trial court improperly usurped jurisdiction of the matter from the state of California, following an award of “legal guardianship” to the Davises by the California court after they had signed the guardianship papers and submitted themselves to the jurisdiction of the California court.

On April 28, 2004, C.D. was placed under the legal guardianship of the Davises by the Superior Court of California, County of Los Angeles, in proceedings numbered CK48586. The Davises also attempted to adopt C.D. in California. After this attempt was unsuccessful, the Davises filed their Louisiana petition for custody on September 20, 2005. This petition for custody in Louisiana was dismissed.

David asserts that the Louisiana trial court did not have the authority to terminate the legal guardianship awarded in the California court. Further, he alleges that the Louisiana trial court ignored the statutes that require Louisiana to give “full faith and credit to judgments of courts in sister states unless the foreign forum lacked jurisdiction over the litigation or over the subject matter involved in the controversy.” David also contends that the Davises were in bad faith by attempting to play “keep away” with him regarding C.D.

I/The Louisiana Code of Civil Procedure allows jurisdiction over the minor’s status through this proceeding. It is “a proceeding to obtain the legal custody of a minor” where the minor is “domiciled in, or is in, this state.” La. C.C.P. art. 10(A)(5) (emphasis added). The Uniform Child Custody Jurisdiction Law (hereafter referred to as “UCCJL”), La. R.S. 13:1700 et seq., previously functioned to graft a second tier of inquiry onto the question of jurisdiction over the custody of minor children. Martin-Creech v. Armstrong, 42,649 (La.App. 2 Cir. 9/12/07), 965 So.2d 624, writ denied, 2007-2120 (La.11/21/07), 967 So.2d 1160. Jurisdiction over the custody of minor children is now governed by the Uniform Child Custody Jurisdiction and Enforcement Act (hereafter referred to “UC-CJEA”). The UCCJEA was enacted and the UCCJL repealed, effective August 15, 2007. Pursuant to La. R.S. 13:1842, the applicable law is the law that was in effect at the time the motion or request for relief was made. In the instant case, Melissa filed a rule for custody in the 26th Judicial District Court in May 2007. Since this rule was filed a few months prior to the effect date of the UCCJEA, the applicable law to the instant case is the UCCJL.

The UCCJL’s jurisdictional requirement must be met at the time the petition is filed in order for the court to have jurisdiction over the child. State ex rel J.W., 43,163 (La.App. 2 Cir. 2/13/08), 975 So.2d 841. It imposes jurisdictional limits that require a court with general subject matter jurisdiction to decline to exercise it. Stelluto v. Stelluto, 2005-0074 (La.6/29/05), 914 So.2d 34. These limitations further the UCCJL’s stated purposes of avoiding jurisdictional competition, assuring that custody |filitigation takes place in the most convenient forum, promoting a stable home environment, deterring abductions, and encouraging cooperation among the courts of different states. Martm-Creech, supra. The UCCJL’s jurisdictional requirements must be met at the time the petition is filed in order for the court to have jurisdiction over the child. State, supra.

The UCCJL provides four grounds, in preferential order, that warrant an exercise of jurisdiction over a child in an interstate matter relating to the child’s custody:

(1) This state (i) is the home state of the child at the time of commencement of the proceeding, or (ii) had been the child’s home state within six months before commencement of the proceeding and the child is absent from this state because of his removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as parent continues to live in this state; or
(2) It is in the best interest of the child that a court of this state assume jurisdiction because (i) the child and his parents, or the child and at least one contestant, have a significant connection with this state, and (ii) there is available in this state substantial evidence concerning the child’s present or future care, protection, training, and personal relationships; or
(3) The child is physically present in this state and (i) the child has been abandoned or (ii) it is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse or is otherwise neglected or dependent; or
(4)(i) It appears that no other state would have jurisdiction under prerequisites substantially in accordance with Paragraphs (1), (2), or (3), or another state has declined to exercise jurisdiction on the ground that his state is the more appropriate forum to determine the custody of the child, and (ii) it is in the best interest of the child that this court assume jurisdiction.

In determining whether a state has subject matter jurisdiction over a child, the critical determination is whether the state is the child’s “home |fistate.” In re S.L.G., 40,858 (La.App. 2 Cir. 1/25/06), 920 So.2d 363. Under the UCCJL, “home state” means, in pertinent part, the state in which the child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding. La. R.S. 13:1701(7)(a). A “person acting as parent” means a person, other than a parent, who has physical custody of a child and who has either been awarded custody by a court or claims a right to custody. La. R.S. 13:1701(13).

C.D. has lived in Louisiana with the Davises since 2002. Therefore, when Melissa filed the initial proceeding in May 2007, C.D. obviously had been living with the Davises for more than the six months. In fact, C.D. had been living with the Davises for approximately five years. This fact made Louisiana C.D.’s home state as defined by the UCCJL, giving the Louisiana court jurisdiction over her.

The Louisiana trial court did not err in finding that it had subject matter jurisdiction over this matter, since Louisiana is C.D.’s home state due her residence here since the age of 15 months. Further, the Louisiana trial court properly found that California no longer had jurisdiction, since C.D., Melissa, David, and the Davises did not reside in California, California was not the home state, and the parties had little connection to California. This assignment is without merit.

Ex Parte Communication

In his second assignment of error, David contends that the trial court’s ex parte meeting with counsel for Melissa Diamond for the purposes 17of issuing supplemental orders without notifying Appellant after he had made a written appearance constitutes a denial of due process, an appearance of impropriety and reversible error. More specifically, David asserts that it was improper for the trial court to have ex parte communication in this matter after he answered Melissa’s petition for custody via handwritten letter, which he alleges was filed on July 9, 2007.

David contends that the Louisiana trial court met ex parte with the Davises and Melissa on January 10, 2008, in order to confect a “clarifying order,” so that the Louisiana trial court could retain its hold on the jurisdictional aspects of this case. David believes that the Louisiana trial court’s actions that provided the Davises and Melissa additional relief “trampled on his due process rights.”

Canon 8(A)(6) of the Code of Judicial Conduct states, in pertinent part:

(6) Except as permitted by law, a judge shall not permit private or ex parte interviews, arguments or communications designed to influence his or her judicial action in any case, either civil or criminal.
* * * *
Where circumstances require, ex parte communications are authorized for scheduling, administrative purposes or emergencies that do not deal with substantive matters or issues on the merits, provided the judge reasonably believes that no party will gain a procedural or tactical advantage as a result of the ex party communication.

After a hearing, on September 27, 2007, a judgment was rendered and signed in favor of Melissa. This judgment “awarded unto her the sole legal care, custody, and control of the minor child, [C.D.], subject to the reasonable supervision visitation rights of David.” This order was without | ^prejudice to David. The “clarifying order.” which was signed on January 10, 2008, that David is referring to is not “additional relief’ as he alleged. The clarifying order stated:

IT IS ORDERED, ADJUDGED, AND DECREED that the minor child, [C.D.], is not to be removed from the custody of the mother, MELISSA C. DIAMAND, unless such removal is ordered by a court of the State of Louisiana.
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that all provisions of the Judgment rendered on September 27, 2007, hereby remain in full force and effect.

After a careful comparison of the judgment and the clarifying order, we find that Melissa was not awarded additional relief. Further this clarifying order does not provide any indication that it influenced his or her judicial action. Rather, the trial court clarified the details of custody, which Melissa had previously been awarded in the September 27, 2007, judgment. This assignment of error is meritless.

Custody

In the third assignment of error, David argues that the trial court abused its discretion in awarding domiciliary custody to the Davises, after finding that he was fit. Further, David argues that the trial court misapplied the “substantial risk of harm” test, as well as the holding in Boyett v. Boyett, 448 So.2d 819 (La.1984).

A court of appeal may not set aside a trial court’s finding of fact in the absence of manifest error or unless it is clearly wrong. Where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed, even though the appellate court may feel that its own evaluations and inferences are as | nreasonable as those of the lower court. When findings of fact are based on determinations regarding the credibility of witnesses, the manifest error/clearly wrong standard demands great deference to the trier of fact’s findings. Only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in that which is said. Rosell v. ESCO, 549 So.2d 840 (La.1989).

In a conflict between a parent and a nonparent, the parent enjoys the paramount right to custody of a child and may be deprived of such right only for compelling reasons. Bracy v. Bracy, 32,841 (La.App. 2 Cir. 10/27/99), 743 So.2d 930, writ denied, 99-3325 (La.12/17/99), 752 So.2d 169; Tennessee v. Campbell, 28,823 (La.App. 2 Cir. 10/30/96), 682 So.2d 1274. La. C.C. art. 133, which governs custody awards to nonparents, states:

If an award of joint custody or of sole custody to either parent would result in substantial harm to the child, the court shall award custody to another person with whom the child has been living in a wholesome and stable environment, or otherwise to any other person able to provide an adequate and stable environment.

At an initial custody contest between a parent and a nonparent, the burden of proof is on the nonparent to show that granting custody to the parent would be detrimental to the child, and that the best interest of the child requires an award of custody to the nonparent. Bra-cy, supra. However, after an initial considered decree, the parent’s paramount right to custody must be weighed in' conjunction with the principles of Bergeron v. Bergeron, 492 So.2d 1193 (La.1986), i.e., the concern for terminating | inrepeated litigation and continuing a child in an established living environment. Id. A considered decree is an award of permanent custody in which a trial court has received evidence of parental fitness. Crowson v. Crowson, 32,314 (La.App. 2 Cir. 9/22/99), 742 So.2d 107; Bracy, supra. Therefore, a parent seeking custody of a child awarded to a nonparent by a previous considered decree bears the burden of proving that the continuation of present custody is so deleterious to the child as to justify a modification of the custody or of proving by clear and convincing evidence that the harm likely to be caused by a change of environment is substantially outweighed by the advantages a change affords a child. Bergeron, supra; Tennessee v. Campbell, 28,823 (La.App. 2 Cir. 10/30/96), 682 So.2d 1274.

Evidence of incidents prior to entry of a stipulated judgment may not be relevant to prove a change of circumstances but may nevertheless remain relevant on the issue of best interest of the child. Crowson, supra. The trial court should not exclude evidence in a custody modification proceeding if that evidence is relevant and material to an issue which the parties have not previously had a full and fair opportunity to litigate. Id.

On November 9, 2009, the trial court granted the Davises and David joint custody of C.D., without prejudice, and the Davises were designated domiciliary custodians with whom C.D. was to reside. This judgment is deemed the “considered decree.” Since David sought to modify this decree, he bore the burden of proving that the continuation of present custody is so deleterious to C.D. as to justify a modification of the custody or of proving by clear and convincing evidence that the harm likely to be caused by a |nchange of environment is substantially outweighed by the advantages a change affords her.

David asserts that the trial court misapplied the substantial risk of harm test, further stating that there is nothing in the record that suggests that he is unable, unfit, or that he somehow forfeited his parental rights. He contends that a “stressful move” to California does not constitute a substantial risk of harm. Further, he suggests that since the Louisiana trial court determined that he was entitled to joint custody, then the Davises failed to meet the heavy burden of proving that custody in his favor would result in substantial harm to C.D.

Mark Vigen and Susan Vigen (hereafter referred to as the “Vigens”), licensed psychologists who evaluated all parties involved, believed that it would be in C.D.’s best interests to move to California to live with David. However, they noted that “a decision for [C.D.] to move to California will be stressful to her.” The Vigens also noted that “the easiest and most comfortable solution for C.D. and her grandparents would be to leave custody as it is and allow C.D. to remain in school at Apollo in Bossier City.”

The Davises have provided a good, stable home environment for C.D. for the past 10 years, which is most of the 11-year-old child’s life. A move from the Davises’ home in Bossier City, to her father’s one bedroom apartment in California would entail a change in schools, friends, possibly religion, and overall environment.

112The trial court found that David did not meet his burden of proving by clear and convincing evidence that the harm likely to result in a change of environment would be substantially outweighed by the advantages to C.D., pursuant to the principles established in Bergeron, supra. We agree, finding the trial court’s determination awarding custody to the Davises is amply supported by the record and not manifestly erroneous. This assignment bears no merit.

CONCLUSION

For the foregoing reasons, the judgment appealed from is affirmed at David Dia-mand’s cost.

AFFIRMED.

APPLICATION FOR REHEARING

Before BROWN, WILLIAMS, STEWART, CARAWAY and SEXTON (Pro Tempore), JJ.

Rehearing denied.


text:
    Felton HORTON and Kenneth Horton, Plaintiffs-Appellants v. Donald O. BROWNE, Defendant-Appellee.
    No. 47,253-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 29, 2012.

      Joseph Greenwald, Sr., for Plaintiffs/Appellants and Third Party Appellant, Sandra Delman.
    Henry W. Bethard, V., for Defen-dani/Appellee.
    Before BROWN, CARAWAY, and DREW, JJ.
   BROWN, Chief Judge.

11 Plaintiffs, Felton Horton, Kenneth Horton and Sandra Ellen Horton Delman, appeal from the declaratory judgment of the trial court in favor of defendant, Donald O. Browne, recognizing him as the sole owner of certain mineral rights in Red River Parish, Louisiana. For the reasons stated herein, we affirm.

Facts and Procedural Background

Willie Mae Huggins Martin had complete ownership of a 40 acre tract in Red River Parish, Louisiana. A landowner’s right to explore for and develop oil and gas is not a servitude; this right is an element of the landowner’s perfect ownership. La. R.S. 31:6. Martin was the mother of plaintiffs, Felton Horton, Kenneth Horton and Sandra Ellen Horton Delman. In 1997, Ms. Martin executed a donation inter vivos wherein she divided the 40 acres into three tracts. Under the terms of the donation, each sibling received ownership of a particular tract of land, to the exclusion of the others. Felton and Kenneth received approximately an 18.75-acre tract each and Sandra received approximately 2.5 acres. Ms. Martin also stated in the donation that each of the siblings were to receive an undivided one-third interest in the minerals under the entire 40 acres. As such she arguably created a single mineral servitude of the entire 40 acres with fractional ownership.

Thereafter, on November 14, 2002, Sandra sold her 2.5 acres to Felton. On November 21, 2003, Felton and Kenneth conveyed the entire 40 acres to Judy Freeman Lazarus. The two Hortons reserved all mineral frights, except that surface operations on the property would require Ms. Lazarus’s approval. On December 28, 2004, Ms. Lazarus conveyed her rights in the property to defendant, Donald O. Browne.

All parties to the present suit executed a mineral lease in favor of Pride Oil & Gas Properties, Inc., in 2005, but no wells were started (spud) on the property until March 2010.

Plaintiffs (Hortons) sought a declaratory judgment recognizing them as owners of the mineral rights to the property. Defendant (Browne) filed an answer and recon-ventional demand seeking judgment declaring plaintiffs’ mineral servitude, which was granted in 1997, prescribed for 10 years non-use in 2007. The evidence submitted to the trial court was limited to the parties’ written stipulation and attached documents. Based upon the evidence submitted, the trial court rendered a written opinion wherein it ruled that the 1997 donation created a single servitude which was not extinguished or modified until February 25, 2007, when it prescribed. At the time of prescription, Donald Browne, was the sole owner of the property. In addition, the trial court ruled that confusion did not occur. The judgment of the trial court was signed on October 3, 2011.

Plaintiffs appealed from this adverse ruling. Defendant answered the appeal seeking reimbursement for reasonable attorney’s fees for the trial court proceeding and legal fees and costs incurred as a result of this appeal.

1 ^Discussion

Plaintiffs would benefit if their mother’s donation of the minerals in 1997 was declared null ab initio. Their 2003 mineral reservation would then prevail.

On appeal, plaintiffs set forth two assignments of error: (1) that the trial court erred in concluding that the 1997 donation from Ms. Martin conveyed to them a valid mineral servitude, and (2) in the event a valid mineral servitude was conveyed, the trial court erred in holding that confusion did not occur between each donee’s fractional mineral interest and their surface rights ownership.

Plaintiffs contend that unless the “alleged mineral servitude” set forth in Ms. Martin’s donation falls within one of the exceptions set forth in La. R.S. 31:63-71, it is an invalid division of a mineral servitude. They argue that none of the exceptions apply and, therefore, the “alleged mineral servitude” is void ab initio. In particular, plaintiffs assert that the La. R.S. 31:66 exception does not apply in the present situation because the “owners of several contiguous tracts” did not exist at the creation of the purported single servitude. Plaintiffs argue that because owners is plural in the statute, it was not meant to apply in situations where a single owner creates the mineral servitude in favor of multiple owners. As such, plaintiffs argue that the true date from which the ten-year prescriptive period began to run for non-use was November 21, 2003, the date of the sale with mineral reservation to Lazarus.

14Pefendant argues that plaintiffs willingly accepted the tracts of land and, in the same instrument, the mineral servitude in the proportions set forth by their mother. Thus, defendant contends, by accepting the donation the plaintiffs agreed to establish the mineral servitude as provided in La. R.S. 31:66.

La. R.S. 31:62 provides:

Except as provided in Articles 63 through 71, the rights and obligations of the owner of a mineral servitude are indivisible.

La. R.S. 31:66 states that the owners of several contiguous tracts of land may establish a single mineral servitude in favor of one or more of them or of a third party. Determination of whether a landowner reserving or granting a mineral servitude intends to create a single servitude is dependent upon the construction of the particular conveyance. Roemer v. Caplis, 369 So.2d 1186 (La.App. 2d Cir.1979), writ denied, 371 So.2d 620 (La.1979); Whitehall Oil Co., Inc. v. Heard, 197 So.2d 672 (La.App. 3d Cir.1967), writ refused, 250 La. 924, 199 So.2d 923 (La.1967).

The trial court, in its written reasons, refers to the language in the 1997 donation to infer the intent of the parties to the donation. Specifically, the trial court sets forth the following clause of the donation:

Donor does further donate unto donees an undivided one-third (l/3rd) interest each in and to all of the minerals situated on and under all of the above described property, they are to own this mineral right in indivisión. (Emphasis theirs).

The trial court found, and we agree, that the donation of the surface rights and the donation of the mineral rights, although in the same instrument, were separate and distinct donations. Ms. Martin donated the surface tracts Uto plaintiffs and then further donated an undivided one-third interest in the mineral rights to the whole contiguous land. The intent of Ms. Martin and the plaintiffs is clearly set forth in the conveyance. By agreeing to the terms in the conveyance, each plaintiff intended to be subject to a mineral servitude in favor of the others. Accordingly, we find no error in the trial court’s determination that a valid mineral servitude was created in the 1997 donation and that the mineral servitude prescribed for non-use on February 25, 2007.

Plaintiffs next argue that, assuming that the mineral servitude was validly created in their favor at the time of the donation, the donation would nonetheless have resulted in the confusion of their fractional interest in their mineral servitude. Meaning, the plaintiffs explain, that when Ms. Martin transferred the 18.75 acres to Felton, for example, as well as the one-third interest in the minerals of all three tracts, he owned a one-third interest in the minerals under his tract .through confusion. Accordingly, plaintiffs contend that even if the prescriptive period for two-thirds of their mineral interest to the tracts they received the surface rights to began running at the time of the donation in 1997, the prescriptive period of their one-third interest did not begin to run until the Lazarus sale in 2003.

With regards to plaintiffs’ confusion argument, defendant contends that confusion does not take place when an owner of one estate acquires only a portion of the other estate or in indivisión with another person. To support his contention, defendant relies upon Allied Chemical Corp. v. Dye, [¾441 So.2d 776 (La.App. 2d Cir.1983), writ denied, 444 So.2d 119 (La.1984). In Allied Chemical Corp., 441 So.2d at 783, this court stated:

The rules of confusion contained in Former C.C. Articles 788 and 805 provide that when the owner of the servitude becomes the owner of the land confusion occurs, however, the second paragraph of C.C. 805 specifically recognizes that the quality of ownership of the two estates must be identical for confusion to occur. Applying the second paragraph of 805 to the situation where the part owner of the single servitude becomes full owner of the land subject to the servitude no confusion would occur. These provisions are applicable to mineral servitudes. (Emphasis ours).

The question present in Allied Chemical Corp., concerning articles 66 and 67, was when a person has full ownership of a contiguous tract and also a fractional mineral servitude in the same land, are not the full ownership and servitude merged together and the servitude extinguished by confusion? In answering this question, the court focused on former Civil Code article 805, which dealt with confusion of predial servitudes. The court observed that confusion would not occur pursuant to article 805 unless the two estates were of equal quality and concluded that confusion would not take place because full ownership and servitudes are not of equal quality. The redactors of the revised Civil Code removed the equal quality language from the present version of Article 805. Article 765 of the Civil Code now provides that a servitude is extinguished by confusion “when the dominant and servient estates are acquired in their entirety by the same person.” Under this new version, one could conclude that confusion does not occur because the landowner would acquire not the entirety of the ‘dominant estate,’ which would be the mineral servitude, but only a fractional interest |7in the mineral servitude. See Luther L. McDougal III, Louisiana Mineral Servitudes, 61 Tul. L.Rev. 1097.

The dominant estate acquired initially by the three siblings in 1997 was a co-owned mineral servitude governed by the special regime for such co-ownership under Article 175 of the Mineral Code. La. R.S. 31:175. As co-owners of the mineral servitude, consent by all of the co-owners was necessary for mineral operations on the property. On the other hand, the plaintiffs claim for a one-third interest in the minerals as landowner, or as a part of the landowner’s right to explore for minerals, would amount to an independent right for exploration. The rights between the two estates, or the dominate and servient ownerships, being unequal, no confusion occurred.

Considering that as a result of the 1997 donation each sibling owned 100% of the surface rights to their respective tract, but they never owned the full amount of the mineral servitude affecting their respective tract, confusion could not occur. As stated in Allied Chemical Corp., supra at 783, “the quality of ownership of the estates must be identical for confusion to occur.” Clearly this is not the case in the present matter and, as such, the trial court did not err in its holding that confusion of plaintiffs’ respective fractional interest in the mineral servitude did not occur.

Another argument could be that a new servitude was created when the Hortons sold to Lazarus reserving the minerals in 2003. As noted by the court in Allied Chemical Corp., supra, at 781, wrote:

An owner of land encumbered by a mineral servitude affecting all of the minerals may not create another mineral servitude. He cannot contract with respect to the expectancy of a future reversion of the minerals. McMurrey v. Gray, 216 La. 904, 45 |,So.2d 73 (1949); Hicks v. Clark, 225 La. 133, 72 So.2d 322 (1954); La. R.S. 31:76.

Lastly, by answer to appeal, defendant seeks reasonable attorney’s fees for the district court proceeding and costs for this appeal. The trial court held that each party would be responsible for their own attorney’s fees and that costs of the trial court proceedings would be split evenly among the two sides.

An award of attorney fees is a type of penalty imposed not to make the injured party whole, but rather to discourage a particular activity on the part of the opposing party. Langley v. Petro Star Corp. of La., 01-0198 (La.06/29/01), 792 So.2d 721. Because of the penal nature of attorney fees awards, they are not favored and should be made only in cases which are clear and free from doubt. Texas Industries Inc. v. Roach, 426 So.2d 315 (La.App. 2d Cir.1983).

We do not find the trial court’s determination that each party should be liable for their own attorney’s fees to be erroneous. Accordingly, the answer to appeal seeking amendment of the trial court’s judgment is denied.

Conclusion

For the reasons stated herein, the judgment of the trial court is affirmed. Costs of this appeal are to be paid one-half by plaintiffs and one-half by defendant.

      . Subject to all servitudes.