text:
    FIRST LOUISIANA BANK, Plaintiff-Appellant v. MORRIS & DICKSON, CO., LLC, Defendant-Appellee.
    No. 45,668-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 3, 2010.
    Rehearing Denied Dec. 9, 2010.

      William E. Byram, LTD by William E. Byram, Shreveport, Louisiana, for Plaintiff-Appellant First Louisiana Bank.
    Kenneth R. Antee, Jr., for Intervenor-Appellant Ronald Tuminello.
    Ayres, Warren, Shelton, & Williams, LLC, by Curtis R. Shelton, Shreeveport, Louisiana, for Defendant-Appellee Morris & Dickson Company, LLC.
    Before BROWN, WILLIAMS and GASKINS, JJ.
   GASKINS, J.

bThe plaintiff, First Louisiana Bank (“First Louisiana”), and the plaintiff in intervention, Ronald Tuminello, appeal from a trial court judgment finding that the defendant, Morris & Dickson Company, LLC (“Morris & Dickson”), was not liable for losses resulting from the default on loans by Material Management Systems, Inc. (“MMS”), a company with whom Morris & Dickson did business. For the following'reasons, we affirm the trial court judgment.

FACTS

Morris & Dickson needed a package handling system for its warehouse. MMS was the low bidder and was chosen to install an Intertake Pallet Pick system. To facilitate the process, Morris & Dickson issued three purchase orders to MMS. One purchase order, # 031223-01, was for $249,853.47. A second purchase order, # 031223-02, the order at issue here, was for $196,450.50. The amount of the third purchase order was not specified.

MMS was operated by Robert Eizel. MMS did not have the funds to purchase the system. Mr. Eizel approached Bank One, Bancorp South, and First Louisiana about obtaining financing. First Louisiana requested, as additional security, that the bank be included as additional payee on all payments made by Morris & Dickson to MMS.

On January 15, 2004, Paul M. Dickson, vice-president of Morris & Dickson, wrote a “To Whom it May Concern” letter stating that:

Payment for the above referenced purchase order issued to Material Management Systems will be made payable to Material Management Systems and First Louisiana Bank Attn: Ron Bou-dreaux.

|2The purchase order referenced in the letter was # 031223-02, for $196,450.50. The letter does not specify an addressee. Morris & Dickson wrote similar letters to Bank One for purchase orders # 031223-01, # 031223-02, and # 031223-03 and to Bancorp South for # 031223-01 and # 031223-03. Bank One did not lend money to MMS; Bancorp South and First Louisiana did. The two loans from First Louisiana are at issue in this case.

The loans from First Louisiana were evidenced by promissory notes from MMS and Mr. Eizel to First Louisiana in the amounts of $50,070 and $65,072. Mr. Eizel signed as a guarantor on the loans. In order to secure the two loans, MMS also made assignments to First Louisiana of the contract purchase order from Morris & Dickson for $196,450.50. The assignments were filed in the Uniform Commercial Code Registry with the Louisiana Secretary of State.

The intervenor, Ronald Tuminello, partnered with Mr. Eizel on previous business ventures. Mr. Tuminello signed as a guarantor on the loans from First Louisiana for this project. Mr. Eizel gave Mr. Tuminel-lo a promissory note for $100,000 to secure his signature as guarantor.

MMS failed to complete the work on the warehouse and Morris & Dickson took over the project. MMS also defaulted on its loan to First Louisiana. In August 2004, First Louisiana sent a demand letter to Mr. Eizel to pay both notes. In June 2005, First Louisiana obtained a default judgment against MMS and Mr. Eizel in the amounts of $51,160.57 and |s$64,724.16, the sums due on the notes. MMS went out of business and Mr. Eizel filed for bankruptcy. However, his debt to First Louisiana on these notes was not discharged in bankruptcy.

Mr. Tuminello, as guarantor of the loans, paid interest on the notes. In September 2005, First Louisiana sent a letter to Morris & Dickson inquiring about checks issued to MMS that did not include First Louisiana as an additional payee. The record contains a copy of a check issued on April 28, 2004, payable to MMS only, in the amount of $161,500.00. Another check issued on June 16, 2004 was for $50,000 and was payable to MMS and Ban-corp South. A third check for $50,000 was issued on April 12, 2004, payable only to MMS. The checks do not specify which purchase orders they were intended to pay.

On September 8, 2006, First Louisiana filed suit against Morris & Dickson seeking to enforce the terms of the “To Whom it May Concern” letter. First Louisiana sought to recover “sums proven to be due for payments made toward purchase order # 031223-02, which were not made payable jointly” to First Louisiana and MMS.

In May 2007, Mr. Tuminello filed a petition of intervention to recover payments made by Morris & Dickson for purchase order # 031223-02. In January 2008, Morris & Dickson filed a peremptory exception of prescription, arguing that First Louisiana and Mr. Tuminello were seeking to recover under the theory of detrimental reliance. First Louisiana and Mr. Tumi-nello contended that the loans and guaranty made to MMS were done in reliance on Morris & Dickson’s agreement to include First Louisiana as 14an additional payee on all checks to MMS. According to Morris & Dickson, First Louisiana was aware by 2004 that it was not included as an additional payee. Morris & Dickson contended that detrimental reliance is a tort and is subject to a one-year prescriptive period.

In January 2008, the trial court held a hearing and concluded that the claims against Morris & Dickson had prescribed. First Louisiana and Mr. Tuminello appealed. In First Louisiana Bank v. Morris & Dickson Company, LLC, 44,187 (La. App.2d Cir.4/8/09), 6 So.3d 1047, this court reversed the trial court, finding that the claim against Morris & Dickson was based on contract and not tort and was subject to the 10-year prescriptive period for contracts. The matter was remanded to the trial court for further proceedings.

On remand, the trial court considered testimony and evidence adduced at the original hearing. Ron C. Boudreaux, president of First Louisiana, testified that there were two conditions for the loan to MMS. First, that the bank receive assignments of the purchase orders and second, that checks from Morris & Dickson for purchase order # 031223-02 be made payable to both MMS and First Louisiana.

Paul Dickson of Morris & Dickson testified that he wrote the letter at issue here so that Mr. Eizel could get a loan from some financial institution. Similar letters were written to other banks. Mr. Dickson said that Mr. Eizel came to his office and they discussed the wording of the letters. Mr. Dickson said his expectation was that, if and when MMS got a loan, Morris & Dickson would be notified. Mr. Dickson stated that he specifically asked | BMr. Eiz-el to inform him whom to include on the payments if he got a loan. Further, Mr. Dickson said he expected that “if a bank extended these types of terms that I would get a phone call from the bank.”

MMS obtained a loan from Bancorp South in addition to First Louisiana. Mr. Dickson said that Bancorp South contacted him and told him that it had loaned money to MMS and that Bancorp South should be included as a payee on checks to MMS. Mr. Dickson complied with that request. However, he stated that First Louisiana did not contact him and he did not know which banks lent money to MMS.

On remand, a hearing was held in the trial court in September 2009. First Louisiana argued that the “To Whom it May Concern” letter was an accessory contract and a stipulation for a third party (stipulation pour autrui). According to First Louisiana, it acted upon Morris & Dickson’s representations in the letter. First Louisiana argued that there was no need for notice of the loan or formal acceptance of the terms of the letter.

Mr. Tuminello contended that, by virtue of the letter at issue here, Morris & Dickson contracted to put First Louisiana on its checks to MMS as a payee. He argued that notice of a loan made to MMS by First Louisiana was not necessary. Mr. Tuminello maintained that Morris & Dickson breached its contract with First Louisiana. As guarantor of the loans made to MMS, Mr. Tuminello claimed that he was damaged by having .to pay $17,331.58 in interest on one loan and $21,786.28 in interest on the other loan.

1 ^Morris & Dickson argued that it had no notice that First Louisiana had actually loaned money to MMS and had no obligation to include First Louisiana as a payee on the checks.

The trial court found that Morris & Dickson authored the letter at issue here in an effort to help MMS obtain financing. Morris & Dickson was never notified that First Louisiana had issued credit based upon the letter. According to the trial court, notification to Morris & Dickson of the acceptance of the terms of the letter was essential to the formation of a binding agreement. The trial court determined that it could not hold Morris & Dickson liable. A judgment in favor of Morris & Dickson, rejecting the demands of First Louisiana and Mr. Tuminello, was signed by the trial court in December 2009. First Louisiana and Mr. Tuminello appealed.

First Louisiana argues that the trial court erred in failing to find that an obligation existed on the part of Morris & Dickson to pay First Louisiana monies toward purchase order # 031223-02, pursuant to the letter issued by Morris & Dickson dated January 15, 2004. First Louisiana also claims that the trial court erred in finding that the bank and/or MMS were required to give notice to Morris & Dickson before the company was obligated to pay pursuant to its letter.

The plaintiff in intervention, Mr. Tumi-nello, argues on appeal that the trial court erred by not applying the detrimental reliance provisions of La. C.C. art. 1967. He also argues that the trial court erred in finding that notice was required and/or was not given.

IvCONTRACT AND NOTICE

First Louisiana urges that the letter at issue here created a conventional obligation or contract between Morris & Dickson and First Louisiana once the bank accepted Morris & Dickson’s offer by making a loan to MMS. First Louisiana argues that the trial court erred in finding that express acceptance of the terms of the letter was required to form a contract between Morris & Dickson and the bank. First Louisiana contends that the “To Whom it May Concern” letter to the bank became an accessory contract to the principal contract between Morris & Dickson and MMS.

First Louisiana also claims that the letter was a stipulation pour autrui. According to First Louisiana, the law does not provide for a particular form of acceptance or require an express acceptance of or consent to a stipulation pour autrui.

Closely tied with the arguments concerning whether there was a binding agreement in this matter, First Louisiana maintains that the trial court erred in finding that either the bank or MMS was required to give notice to Morris & Dickson to create an obligation on the part of the company to include the bank as a payee on checks to MMS. First Louisiana contends that Morris & Dickson knew that MMS was seeking financing for the project and Morris & Dickson had actual knowledge that MMS was dealing with First Louisiana and Bancorp South. According to First Louisiana, the letter by Morris & Dickson did not require the bank to contact the company to trigger the obligation of including First Louisiana as |san additional payee on checks to MMS. These arguments are without merit.

Legal Principles

A contract is an agreement by two or more persons whereby obligations are created, modified, or extinguished. La. C.C. art. 1906. A contract is formed by the consent of the parties established through offer and acceptance. Unless the law prescribes a certain formality for the intended contract, offer and acceptance may be made orally, in writing, or by action or inaction that under the circumstances is clearly indicative of consent. Unless otherwise specified in the offer, there need not be conformity between the manner in which the offer is made and the manner in which the acceptance is made. La. C.C. art. 1927.

Unless otherwise specified by the offer or the law, an acceptance of a revocable offer, made in a manner and by a medium suggested by the offer or in a reasonable manner and by a reasonable medium, is effective when transmitted by the offeree. La. C.C. art. 1935. A medium or manner of acceptance is reasonable if it is the one used in making the offer or one customary in similar transactions at the time and place the offer is received, unless circumstances known to the offeree indicate otherwise. La. C.C. art. 1936.

When an offeror invites an offeree to accept by performance and, according to usage or the nature or the terms of the contract, it is contemplated that the performance will be completed if commenced, a contract is formed when the offeree begins the requested performance. La. C.C. art. 1939.

lflWhen commencement of the performance either constitutes acceptance or makes the offer irrevocable, the offeree must give prompt notice of that commencement unless the offeror knows or should know that the offeree has begun to perform. An offeree who fails to give the notice is liable for damages. La. C.C. art. 1941.

When, because of special circumstances, the offeree’s silence leads the offeror reasonably to believe that a contract has been formed, the offer is deemed accepted. La. C.C. art. 1942.

The court must find that there was a meeting of the minds of the parties to constitute consent. The existence or nonexistence of a contract is a question of fact not to be disturbed unless clearly wrong. Belin v. Dugdale, 45,405 (La.App.2d Cir.6/30/10), 43 So.3d 272.

On appeal, the reviewing court may not set aside a trial court’s findings in the absence of manifest error or unless they are clearly wrong. Where two permissible views of the evidence exist, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. Even though the appellate court may feel that its own evaluations and inferences are more reasonable than those made by the trial court, reasonable evaluations of credibility and reasonable inferences of fact are not disturbed on appeal where conflicting testimony exists. To reverse a trial court’s factual determinations, the appellate court must find that a reasonable factual basis does not exist for the finding of the trial court and that the record establishes that the finding is clearly wrong. When findings are based on determinations regarding credibility of a witness, the manifest | inerror-clearIy wrong standard demands great deference to the trier of facts’ findings. Belin v. Dugdale, supra.

Discussion

The trial court did not err in finding that the letter at issue here does not give rise to a binding contract between Morris & Dickson and First Louisiana. The letter was not addressed to First Louisiana or any other entity. It is a “To Whom it May Concern” letter agreeing to include First Louisiana as a payee on payments to MMS for purchase order # 031223-02. Another letter, covering this same purchase order as well as two other purchase orders, was also written concerning Bank One. A third letter was written concerning Bancorp South and purchase orders # 031223-01 and # 031223-03. If these letters, without notice of acceptance of the terms, created a contract, then Morris & Dickson would have been required to include not only First Louisiana, but also Bank One on any checks issued to MMS for purchase order # 031223-02. We find that this is not the case. The letter was an offer that required acceptance and communication of that fact to Morris & Dickson in order to form a contract.

Under La. C.C. art. 1927, unless the law prescribes a certain formality for a contract, offer and acceptance may be made orally, in writing, or by action or inaction that under the circumstances is clearly indicative of consent. While no formality was required by law for the alleged agreement at issue here, there was no communication of acceptance by First Louisiana orally, in writing, or by action or inaction which, under the circumstances was clearly indicative of consent.

|nLa. C.C. arts. 1935 and 1936 provide that acceptance must be made in a manner and by a medium suggested by the offer or in a reasonable manner and by a reasonable medium. A medium or manner of acceptance is reasonable if it is the one used in making the offer or one customary in similar transactions at the time and place the offer is received. First Louisiana argued that the mere fact that it made a loan to MMS was sufficient to convey acceptance of the offer made by Morris & Dickson to include the bank as an additional payee on checks to MMS for purchase order # 031223-02. The offer was made in writing and First Louisiana did not provide written acceptance to Morris & Dickson. There is also no showing that simply making a loan to MMS would have constituted customary acceptance in such transactions.

First Louisiana argues that it conveyed its acceptance by performance in making the loan or by its silence. The facts of this case, measured against the Louisiana Civil Code provisions, do not support this argument. La. C.C. art. 1939 specifies that a contract is formed when an offeree begins the requested performance if the offeror invites acceptance by performance and it is contemplated that performance will be completed if commenced. However, La. C.C. art. 1941 states that when commencement of performance constitutes acceptance, the offeree must give prompt notice of the commencement unless the offeror knows or should have known that the offeree has begun performance.

In this case, the letter at issue does not show that Morris & Dickson invited acceptance by performance and First Louisiana did not give prompt | i2notice to Morris & Dickson of the loan to MMS. Paul Dickson testified that Morris & Dickson did not know which financial institutions, if any, gave loans to MMS. Under these facts, MMS could have gotten financing from Bank One or First Louisiana, or could have secured financing from some other source unknown to Morris & Dickson. These circumstances do not show that Morris & Dickson knew or should have known that First Louisiana had begun to perform by making loans to MMS.

Further, First Louisiana’s silence did not constitute acceptance of an alleged offer by Morris & Dickson. La. C.C. art. 1942 provides that an offer is deemed accepted when, because of special circumstances the offeree’s silence leads the of-feror reasonably to believe that a contract has been formed. In this matter, there is no showing of special circumstances that would have caused silence by First Louisiana to lead Morris & Dickson to reasonably believe that a binding agreement had been formed. As stated above, several letters were issued concerning different lenders. Only Bancorp South gave notice to Morris & Dickson that a loan had been made to MMS. Once Morris & Dickson was informed of Bancorp South’s acceptance of the offer, the company included Bancorp South as an additional payee on checks concerning the purchase orders financed by that bank.

First Louisiana contends that the “To Whom it May Concern” letter was an accessory contract to the loan agreement. La. C.C. art. 1913 provides:

A contract is accessory when it is made to provide security for the performance of an obligation. Suretyship, mortgage, pledge, jisand other types of security agreements are examples of such a contract.
When the secured obligation arises from a contract, either between the same or other parties, that contract is the principal contract.

Had there been an enforceable agreement between First Louisiana and Morris & Dickson, it would have been an accessory contract. As discussed above, because First Louisiana failed to communicate acceptance to Morris & Dickson, there was no contract, accessory or otherwise.

The facts of this case fail to establish the existence of a stipulation pour autrui. La. C.C. art. 1978 provides:

A contracting party may stipulate a benefit for a third person called a third party beneficiary.
Once the third party has manifested his intention to avail himself of the benefit, the parties may not dissolve the contract by mutual consent without the beneficiary’s agreement.

A stipulation pour autrui is never presumed. Rather, the intent of the contracting parties to stipulate a benefit in favor of a third party must be made manifestly clear. Additionally, to establish a stipulation pour autrui, the third party relationship must form the consideration for a condition of the contract and the benefit may not be merely incidental to the contract. The party demanding performance of an obligation pursuant to a stipulation pour autrui bears the burden of proving the existence of this obligation. Third parties can be the beneficiaries of the stipulation as long as they are determinable on the day on which the agreement is to have effect for their benefit. Hudson v. Progressive Security Insurance Company, 43,857 (La.App.2d Cir.12/10/08), 1 So.3d 627, unit denied, 2009-0235 (La.3/27/09), 5 So.3d 148. See also Boyte v. Louisiana Ag Credit PCA 39,569 (La.App.2d Cir.4/6/05), 899 So.2d 765.

The trial court did not err in finding that notice of acceptance of the offer contained in the letter at issue here was necessary for the formation of a binding agreement between Morris & Dickson and First Louisiana. Because there was no showing that First Louisiana ever communicated acceptance of the offer, the trial court did not err in finding that no contract was formed between these parties. Further, if a stipulation pour autrui in favor of First Louisiana was intended by Morris & Dickson and MMS, there is no showing that First Louisiana manifested its intent to avail itself of the benefit.

Also, regarding the issue of notice, the record shows that MMS made assignments of purchase order # 031223-02 to secure the two loans made by First Louisiana. The bank made the necessary UCC registration of the assignments with the Louisiana Secretary of State’s office. However, there was no showing of notice for Morris & Dickson to make payments to First Louisiana as the assignee. La. R.S. 10:9-406 provides in pertinent part:

(a) Discharge of account debtor; effect of notification. Subject to subsections (b) through (i) and R.S. 10:9-411, an account debtor on an account, chattel paper, or a payment intangible may discharge its obligation by paying the assignor until, but not after, the account debtor receives a notification, authenticated by the assignor or the assignee, that the amount due or to become due has been assigned and that payment is to be made to the assignee. After receipt of the notification, the account debtor may discharge its obligation by paying the assignee and may not discharge the obligation by paying the assignor. [Emphasis supplied.]

11sThe result in this case is determined solely by the distinct facts presented here. The circumstances and timing of the Morris & Dickson letter are significant in the outcome of this matter. The letter was clearly written at a time when MMS and Mr. Eizel were attempting to obtain financing from various banks. Under these facts, First Louisiana should have communicated to Morris & Dickson its acceptance of the offer in the letter and First Louisiana’s performance by loaning money to MMS. The result in this case may have been different if the letter had been written at a different time in the loan process.

DETRIMENTAL RELIANCE

Mr. Tuminello argues on appeal that the trial court erred in not applying the detrimental reliance provisions of La. C.C. art. 1967. He contends that Morris & Dickson knew that First Louisiana would not loan money to MMS without assurance from Morris & Dickson that it would make payments jointly to MMS and the bank. Mr. Tuminello claims that he would not have entered into the continuing guaranty agreement without the assurances of Morris & Dickson contained in the letter at issue here. He urges that notice is not required for detrimental reliance. He asserts that Morris & Dickson made a representation that he was justified in relying upon and that he changed his position to his detriment because of that reliance. This argument is without merit.

Legal Principles

La. C.C. art. 1967 provides:

Cause is the reason why a party obligates himself.
LfiA party may be obligated by a promise when he knew or should have known that the promise would induce the other party to rely on it to his detriment and the other party was reasonable in so relying. Recovery may be limited to the expenses incurred or the damages suffered as a result of the promisee’s reliance on the promise. Reliance on a gratuitous promise made without required formalities is not reasonable.

The doctrine of detrimental reliance is designed to prevent injustice by barring a party from taking a position contrary to his prior acts, admissions, representation, or silence. Suire v. Lafayette City-Parish Consolidated Government, 2004-1459 (La.4/12/05), 907 So.2d 37; Belin v. Dugdale, supra.

The focus of analysis of a detrimental reliance claim is not whether the parties intended to perform, but, instead, whether a representation was made in such a manner that the promisor should have expected the promisee to rely upon it, and whether the promisee so relies to his detriment. Suire v. Lafayette City-Parish Consolidated Government, supra.

To recover under the theory of detrimental reliance, a plaintiff must prove the following three elements by a preponderance of the evidence: (1) a representation by conduct or work; (2) justifiable reliance thereon; (3) a change in position to one’s detriment because of the reliance. Belin v. Dugdale, supra.

It is difficult to recover under the theory of detrimental reliance because estoppel is not favored in Louisiana law. Claims of detrimental reliance must be examined strictly and carefully. Northside Furniture of Ruston, Inc. v. First Tower Loan, Inc., 43,736 (La.App.2d Cir.12/3/08), 999 So.2d 151; Belin v. Dugdale, supra.

117Piscussion

We must first address the question of whether Mr. Tuminello’s claim for detrimental reliance is properly before this court on appeal. In the trial court, Mr. Tuminello argued that he was damaged by the breach of an alleged contract between Morris & Dickson and First Louisiana to include the bank as an additional payee on checks to MMS. On remand, the trial court stated that the previous opinion of this court, denying the exception of prescription, held that any claims of detrimental reliance would have been prescribed. Therefore, the trial court’s reasons for judgment on remand do not consider the merits of detrimental reliance.

Morris & Dickson contends that detrimental reliance is based in tort and that the prior decision of this court found that any detrimental reliance claims in this case had prescribed. To the contrary, this court’s prior opinion held that any tort claims which might be involved in the case had prescribed but that the claims presented were based in contract. Delictual actions are subject to a liberative prescription of one year. La. C.C. art. 3492. An action on a contract is governed by the prescriptive period of 10 years for personal actions. La. C.C. art. 3499; Trinity Universal Insurance Company v. Horton, 33,157. (La.App.2d Cir.4/5/00), 756 So.2d 637. The correct prescriptive period to be applied in any action depends upon the nature of the action; it is the nature of the duty breached that should determine whether an action is in tort or in contract. Trinity Universal Insurance Company v. Horton, supra. The classical distinction between “damages ex contrac-tu” and “damages ex delicto” is that the former flow ]18from the breach of a special obligation contractually assumed by the obligor, whereas the latter flow from the violation of a general duty to all persons. Harrison v. Gore, 27,254 (La.App.2d Cir.8/23/95), 660 So.2d 563, unit denied, 95-2347 (La.12/8/95), 664 So.2d 426.

In the Louisiana Civil Code revision of 1984, La. C.C. art. 1967, which concerns cause and detrimental reliance, was enacted. This article is contained in that portion of the Louisiana Civil Code dealing with contracts. In Saul Litvinoff, Still Another Look at Cause, 48 La. L.Rev. 3 (1987), construing La. C.C. art. 1967, the author states that “the new article of the Louisiana Civil Code subtracts induced reliance from the quasi-delictual field and places it where it belongs, in contract.”

We also note that the jurisprudence holds that claims for detrimental reliance arising out of contracts are not subject to the one-year prescriptive period for torts. See Babkow v. Morris Bart, P.L.C., 1998-0256 (La.App. 4th Cir.12/16/98), 726 So.2d 423. Therefore, Mr. Tuminello’s detrimental reliance claim, based upon an alleged contract, has not prescribed.

However, we find that Mr. Tumi-nello failed to carry his burden of proving a claim for detrimental reliance in this matter. In the present case, Mr. Tuminel-lo argues that he would not have signed as a guarantor on the loan from First Louisiana to MMS without the assurance that Morris & Dickson would include the bank as a payee on all checks issued to MMS for payment of the purchase order at issue here. Under the facts presented, we do not find that Mr. Tuminello was justified in his reliance on the “To Whom it May Concern” letter. No promises were made to Mr. Tuminello 119and no representation was made by Morris & Dickson in such a manner that the company should have expected Mr. Tuminello to rely upon it. The facts simply do not support the argument that the letter at issue here induced Mr. Tuminello to sign as a guarantor. Therefore, no claim for detrimental reliance has been proved in this case.

CONCLUSION

For the reasons stated above, we affirm the decision of the trial court rejecting the claims of First Louisiana Bank and Ronald Tuminello against the defendant, Morris & Dickson Company, LLC. Costs in this court are assessed one-half to First Louisiana and one-half to Mr. Tuminello.

AFFIRMED.

APPLICATION FOR REHEARING

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

Rehearing denied.

BROWN, J., would grant rehearing.

      . First Louisiana is now Community Trust Bank, but will be referred to as First Louisiana herein.


source: Caselaw Access Project

author: WILLIAMS, J. CARAWAY, J., CARAWAY, J. WILLIAMS, J.,

license: Public Domain

text:
    Jason Ted GRAY, Plaintiff-Appellant v. Christy Lynn Winnon GRAY, Defendant-Appellee.
    No. 45,826-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 17, 2010.
    Opinion Granting Rehearing Jan. 13, 2011.
    Rehearing Denied Feb. 15, 2011.

      Donald L. Kneipp, Monroe, LA, for Appellant.
    Alan J. Norris, for Appellee.
    Before WILLIAMS, STEWART and CARAWAY, JJ.
   WILLIAMS, J.

_|jThe plaintiff, Jason Gray, appeals judgments denying his relocation to Kansas with the parties’ minor child and modifying the prior custody award. The court designated the defendant, Christy Bruner, as the primary domiciliary parent of the child and awarded the father visitation. For the following reasons, we affirm.

FACTS

In October 2001, a child was born of the mamage of Jason Gray (“Gray”) and Christy Bruner, formerly Gray (“Bruner”). The matrimonial domicile was in More-house Parish, Louisiana, until the parties separated in May 2005. In a consent judgment, the parties were awarded joint custody of the minor child and Gray was designated as the domiciliary parent. Subsequently, the district court rendered a judgment of divorce. In March 2007, Gray gave notice of his intent to relocate with the child to Alabama to join his fiancee, Jamie Schmitt, who had moved there because of her job with John Deere Credit. Bruner filed an objection to the relocation and a rule to modify the domiciliary custody. After a conference in June 2007, a hearing officer recommended that Gray’s proposed relocation be denied and that Bruner be awarded primary custody of the child. In October 2007, following a trial, the court approved the father’s relocation with the child to Alabama and denied the mother’s motion to modify custody. The court found that Bruner had not completely recovered from her abuse of prescription drugs. In November 2007, Gray moved to Alabama with the child.

Approximately one year later, Gray sent Bruner notice of a proposed | ^relocation with the minor child to Kansas, based on another job transfer by Jamie, who was then Gray’s wife. Bruner filed objections to this proposed relocation in Louisiana and Alabama. In Louisiana, the court issued an order prohibiting Gray from relocating the child to Kansas pending a hearing and the Alabama court declined to exercise jurisdiction over the proposed relocation. Gray moved to Kansas with the child in violation of the court order and then filed a motion for a temporary order to relocate. In January 2009, Bruner filed a rule to modify custody seeking an award of primary domiciliary custody.

After a trial on the objection to relocation and the modification of custody, the court issued oral reasons for judgment discussing its consideration of the relocation factors of LSA-R.S. 9:355.12. The court found that in moving to Kansas the father was subordinating the child’s best interest to the advancement of his current wife’s career, which had required frequent moves, and that the relocation was not in the child’s best interest. The trial court rendered judgment denying the relocation of the minor child to Kansas and ordering the parties to submit briefs regarding whether the modification of custody in this case required application of the standard in Bergeron v. Bergeron, 492 So.2d 1193 (La.1986).

Subsequently, the trial court issued oral reasons for judgment finding ,that the Ber-geron standard was not applicable to this situation because the statutory exception of LSA-R.S. 9:355.11 provides that the relocation of a party in violation of a court order is a sufficient change in circumstances to support the modification of custody. Alternatively, the court found that Leven if Bergeron was applicable, then Bruner had satisfied her burden of proving that a change in circumstances materially affecting the child’s welfare had occurred through her rehabilitation from a past drug addiction, and that any harm caused by a change of environment would be substantially outweighed by the advantages to the child, such as more frequent contact with his maternal and paternal grandparents. The court rendered judgment granting a modification of custody, designating Bruner as the primary domiciliary parent of the minor child and awarding Gray scheduled visitation. Gray appeals both judgments.

DISCUSSION

Gray contends the trial court erred in sustaining the objection to relocation of the child. Gray argues that the evidence showed the move to Kansas was in the child’s best interest and that the court should have compared Alabama, not Louisiana, as the alternative situation in applying the relocation factors.

A trial court’s determination in a relocation matter is entitled to great weight and will not be overturned on appeal absent a clear showing of abuse of discretion. Curole v. Curole, 02-1891 (La.10/15/02), 828 So.2d 1094; Bingham v. Bingham, 44,292 (La.App.2d Cir.5/13/09), 12 So.3d 448. Pursuant to LSA-R.S. 9:355.13, the parent seeking relocation has the burden of proving that the proposed relocation is made in good faith and in the best interest of the child. LSA-R.S. 9:355.12 provides that in making a decision regarding a proposed relocation, the court shall consider these factors:

(1) The nature, quality, extent of involvement, and duration of the child’s relationship with the parent proposing to relocate |4and with the nonrelocating parent, siblings, and other significant persons in the child’s life.
(2) The age, developmental stage, needs of the child, and the likely impact the relocation will have on the child’s physical, educational, and emotional development, taking into consideration any special needs of the child.
(3) The feasibility of preserving a good relationship between the nonrelocating parent and the child through suitable visitation arrangements, considering the logistics and financial circumstances of the parties.
(4) The child’s preference, taking into consideration the age and maturity of the child.
(5) Whether there is an established pattern of conduct of the parent seeking the relocation, either to promote or thwart the relationship of the child and the nonrelocating party.
(6) Whether the relocation of the child will enhance the general quality of life for both the custodial parent seeking the relocation and the child, including but not limited to financial or emotional benefit or educational opportunity.
(7) The reasons of each parent for seeking or opposing the relocation.
(8) The current employment and economic circumstances of each parent and whether or not the proposed relocation is necessary to improve the circumstances of the parent seeking relocation of the child.
(9) The extent to which the objecting parent has fulfilled his or her financial obligations to the parent seeking relocation, including child support, spousal support, and community property obligations.
(10) The feasibility of a relocation by the objecting parent.
(11) Any history of substance abuse or violence by either parent, including a consideration of the severity of such conduct and the failure or success of any attempts at rehabilitation.
(12) Any other factors affecting the best interest of the child.

Although the statute mandates that all the listed factors be considered, the |r,court is not required to give preferential consideration to any particular factor. Curole, supra; Parker v. Parker, 44,246 (La.App.2d Cir.5/13/09), 12 So.3d 485.

In the present case, the trial court thoroughly considered the statutory factors. The court noted that the child was able to enjoy a close relationship with both parents. However, the record shows that the relocation to Kansas would have taken the child farther away from his mother and from other significant persons in the child’s life, such as his maternal and paternal grandparents. The court expressed concern over the disruption of the child’s education caused by the father’s move to Kansas. The child was removed from first grade in Alabama in the middle of the school year and then missed two weeks of school in January 2009, before being enrolled in Kansas. There was no showing that Kansas offered the child significantly better educational opportunities than Alabama. The court was also concerned that with the three-hour longer driving distance to Kansas, preserving a good relationship between the child and his mother would be less feasible.

At trial and in his appellate brief, Gray emphasized the financial difficulties and debt of Bruner and her current husband as a factor supporting relocation. However, the court was not required to give more weight to this factor than to others. In addition, the evidence showed that the relocation to Kansas would not immediately enhance the general quality of life for Gray and the child, because the father left a job with Helena Chemical at a salary of $50,000 to start a new job as an insurance salesman |fiwith a guaranteed starting income of $2,000 per month. The court noted that the father’s primary motivation to relocate was to follow his wife in moving for the needs of her employer, whereas the mother objected to relocation because of her fear that her relationship with the child would be diminished. The court found that Bruner had been successful in recovering from her past prescription drug abuse through rehabilitation.

Based upon the evidence presented and the applicable statutory factors, we cannot say the trial court erred in finding that Gray failed to satisfy his burden of proving that relocation was in the child’s best interest. Consequently, the court did not abuse its discretion in denying the relocation of the child. The assignment of error lacks merit.

Custody

Gray contends the trial court erred in modifying the custody of the child. Gray argues that Bruner failed to show that the benefits of modifying custody would outweigh the harm of the child’s reduced financial security.

The best interest of the child is the paramount consideration in child custody cases. LSA-C.C. art. 131; Sawyer v. Sawyer, 35,583 (La.App.2d Cir.11/2/01), 799 So.2d 1226. LSA-C.C. art. 134 provides a number of factors for the court to consider in determining the child’s best interest, including the capacity of each parent to give the child love, to^ continue the child’s education and to provide for the child’s material needs, and the length of time the child has lived in a stable, adequate environment. The court is not required to make a mechanical evaluation of all the statutory factors, but should decide each case on its own facts in light of those | ^factors. Sawyer, supra. The trial court’s determination of custody issues is afforded great weight and will not be disturbed on appeal absent an abuse of discretion. Sawyer, supra. After a court has made a considered decree of custody, the party seeking change has the burden of proving that the continuation of the present custody is so deleterious to the child as to justify a modification of custody, or proving by clear and convincing evidence that the harm likely to be caused by a change of environment is substantially outweighed by its advantages to the child. Bergeron, supra.

In the present case, the trial court applied the Bergeron standard as an alternative basis for modifying the prior custody order. The court found that with the father as domiciliary parent, the child’s interest in having a stable environment was secondary to the needs of the stepmother’s career, as indicated by the father’s move to Kansas one year after taking the child to Alabama. The court determined that maintenance of a stable environment for the child would be better achieved in the mother’s household. Noting that most of the child’s extended family resided near the mother in Louisiana,. the court found that modification would give the child the best chance to maintain meaningful contact with his grandparents and other family members. The testimony showed that the child was close to his great-grandmother, who was 81 years old and had helped care for the child since his birth.

Based on the father’s previous withdrawal of the child from school in the middle of the year, the court determined that the child’s education would be less likely to be disrupted after modification, thereby giving the child a | sbetter opportunity to learn and develop friendships at school. There was testimony that in Ru-ston, where the mother resided with her current husband, the elementary school which the child likely would attend was very good.

The trial court was aware that the mother did not have the same financial capacity as the father to provide for the material needs of the child. However, the evidence showed that the mother was able to adequately feed, clothe and care for the child with assistance from her family. Although Gray contends the court should have given more weight to the financial inequality of the parties, the court exercised its discretion in weighing that factor along with the others.

Based upon the evidence presented, the record supports the trial court’s determination that the advantages to the child resulting from modification, particularly the opportunity for a more stable home and school environment and more frequent contact with grandparents and other family members, substantially outweighed any detriment to the child caused by the reduced financial security in the mother’s household. Consequently, we cannot say the trial court abused its discretion in modifying the custody order to designate the mother as the domiciliary parent of the minor child. The assignment of error lacks merit. In reaching this conclusion based on the trial court’s application of the Bergeron standard, we pretermit any discussion of the issue of whether LSA-R.S. 9:355.11 constitutes a statutory exception to the burden of proof required for modification of a considered custody decree under Bergeron.

| «CONCLUSION

For the foregoing reasons, the trial court’s judgments modifying custody of the child and denying relocation of the child are affirmed. Costs of this appeal are assessed to the appellant, Jason Gray.

AFFIRMED.

CARAWAY, J., dissents with written reasons.

CARAWAY, J.,

dissenting.

_JjWith the Bergeron test and its major concerns lost in this matter’s “relocation” emphasis, the majority’s and trial court’s change of custody rulings are in error.

The initial' trial court ruling in 2007 which allowed the domiciliary parent (“Gray”) to move to Toney, Alabama, was a unique “considered decree” as that term has been raised to most important significance by the ruling in Bergeron v. Bergeron, 492 So.2d 1193 (La.1986). Not only did the parents contest in 2007 the custody of their child, the facts of the additional complicating factor of relocation were also “considered” and adjudicated under the special relocation statutes for custody in La. R.S. 9:355.1, et seq. While the best interest of the child test is always paramount, the “considered decree” of 2007 not only measured the relevant considerations of Civil Code Article 134 but also the special quality of life, parental employment, financial and feasibility factors associated with relocation to another state set forth in La. R.S. 9:355.13. Once adjudicated by one district judge in 2007, a different district judge in 2010 is prohibited by Ber-geron from allowing the same matter of relocation to be adjudicated again.

First, in our highly mobile society, joint custody arrangements, even those operating harmoniously under the best of conditions, can become greatly impacted by the economic need of a parent to relocate to another state. A framework for a custody decision caused by such relocation is therefore specifically addressed in La. R.S. 9:355.1, et seq. From the | ^standpoint of logistics alone, given the great distance between the parents’ residences, the decision is difficult. That difficult decision was made in 2007 with Gray being allowed to remain as domiciliary parent and move to Alabama, a great distance from the location of the prior joint custody setting in Louisiana.

Second, the statute’s definitional terms provide that “relocation” means “[ijntent to establish legal residence with the child at any location outside of the state.” La. R.S. 9:355.1(4)(a). In the light of Berger-on, the correct reading of that definition is that the initial establishment, founding or beginning that out-of-state residency, is Louisiana’s concern for adjudication when the nexus of joint custody operating in Louisiana is first broken.

Third, once relocation out of state has occurred and the special factors of La. R.S. 9:355.13 have been considered and adjudicated, the further litigation of virtually those same factors amounts to a suit for a change of custody and not a suit for relocation, thus implicating the serious concerns of Bergeron. For example, if Gray’s move amounted to 30 miles to the other side of Huntsville, Alabama, has “relocation” occurred, throwing open the courthouse doors for further parental conflict over virtually the same geographical and related concerns that were the subject of the prior judicial conflict and considered decree? Once the first adjudication of relocation allows primary custody with the out-of-state parent and a smaller amount of time spent with the Louisiana parent during the school year, the critical best interest of the child determination is that the child should be with that parent Rfor the greater amount of time. The specific location in Alabama or Kansas is not the linchpin of the ruling.

Not once in the majority’s opinion is it said that this child’s continued custody with Gray will be so deleterious to the child so as to justify the child’s return to Louisiana. Neither was Bergeron’s observation about relocation noted:

There is evidence that more harm is done to children by custody litigations, custody changes, and interparental conflict, than by such factors as the custodial parent’s post divorce amours, remarriage, and residential changes, which more often precipitate custody battles under liberal custody modification rules than conduct that is obviously harmful to the child, such as abuse or serious neglect.

Id. at 1199. Instead, the factors of Article 134 and the relocation statute are now reexamined as though the prior conclusion of a different district judge was a mistake. Most importantly, nothing is said in the trial court’s ruling that found fault with the bond between the primary custodian and his son reflecting badly on Gray’s care. As for the change of schools, the ruling for the child’s return to school in Ruston, as opposed to Bastrop where the child had previously attended school, is no different from the change from Alabama to Kansas.

Likewise, the majority’s opinion makes no comparison with other cases applying Bergeron. The heightened Bergeron standard, requiring proof that the continuation of the present custody is so deleterious to the child as to justify a modification of the custody decree, has been applied to disrupt considered custody arrangements sparingly and reserved for the most egregious offenses. See AEB v. JBE, 99-2668 (La.11/30/99), 752 So.2d 756 (sexual molestation by stepbrother); Howard v. Oden, 44,191 (La.App.2d Cir.2/25/09), 5 So.3d 989, writ denied, 09-0965 (La.6/26/09), 11 So.3d 496 (abuse by parent’s subsequent spouse); Ard v. Ard, 628 So.2d 1221 (La.App. 3d Cir.1993) (punishment methods reflected an insensitivity and lack of awareness of the deepening problems that the children were experiencing and extremely severe “parent bashing”); Hull v. Hull, 542 So.2d 205 (La. App. 3d Cir.1989), writ denied, 546 So.2d 1216 (La.1989) (mother repeatedly giving birth to children out of wedlock in total disregard for the moral well-being of her adolescent children).

Consistent in their approach, courts have been hesitant even in relocation settings to change custody once a considered decree has been entered. Johnson v. Johnson, 93,1015 (La.App. 1st Cir.3/11/94), 634 So.2d 31 (father’s removal of child to another state without notice to mother was not so deleterious as to mandate change in custody); Weems v. Weems, 548 So.2d 108 (La.App. 2d Cir.1989) (evidence that mother had remarried, moved with her children to Texas, and had refused to transfer custody to father during summer months as required by joint custody order was insufficient to warrant amendment of order to make father primary domiciliary parent). See also, Knowlton v. Knowlton, 40,931 (La.App.2d Cir.4/12/03), 927 So.2d 640 (no deleterious circumstances found despite daughter’s disciplinary problems and expressed desire to live with other parent); Rome v. Bruce, 09-155 (LaApp. 5th Cir.10/13/09), 27 So.3d 885 (no cause of action when father’s petition, complaining of child failing kindergarten and first grade and mother living with another man out of |swedlock, did not allege facts so deleterious as to warrant change in custody); Lee v. Lee, 34,025 (La.App.2d Cir.8/25/00), 766 So.2d 723, unit denied, 00-2680 (La.11/13/00), 774 So.2d 150 (despite the fact that mother made significant improvements in her emotional and physical well-being by maintaining steady employment and establishing a stable home, trial court abused its discretion in changing custody when evidence showed children had strong bonds with both parents and children were thriving under current custody arrangement); Plunkett v. Plunkett, 576 So.2d 100 (La.App. 2d Cir.1991) (no modification of considered decree based on divorced wife’s evidence that husband committed adultery).

Having read the lengthy trial court ruling in 2007 when the decision to allow the domiciliary parent to relocate to Alabama was made, I’m convinced that Bergeron requires new judges in 2010 to protect the best interest of the child and allow the established custody to remain stable. Ber-geron was lost in the trial court’s misguided focus on the relocation statute, and I respectfully dissent.

On Rehearing

Before WILLIAMS, STEWART, CARAWAY, DREW and MOORE, JJ.

CARAWAY, J.

|, Finding that the trial court’s change of custody ruling in favor of Christy Lynn Winnon Bruner (“Bruner”) did not follow the requirements of Bergeron v. Bergeron, 492 So.2d 1193 (La.1986), we granted rehearing and now reverse the ruling and restore custody in the domiciliary parent, Jason Ted Gray (“Gray”).

The recitation of the facts as set forth in this court’s original opinion is accepted for the purposes of this ruling on rehearing. Those facts noted that “the child was able to enjoy a close relationship with both parents,” regardless of the distance between the parents because of Gray’s out-of-state residency. The previously adjudicated relationship of joint custody allowing for relocation outside of Louisiana was neither alleged nor shown to be detrimental to the child during the period following the initial judgment. The additional three-hour driving time from Kansas was likewise not shown to affect “the responsibility for the care and rearing of the child previously exercised by each party” under the existing order allowing Gray to relocate out-of-state. See La. C.C. art. 134(12). No allegation in Bruner’s rule to modify custody asserted that “the love, affection, and other emotional ties” existing between Gray and his son, another of the factors of C.C. art. 134, were harmed or neglected because of Gray’s conduct. Although she asserted that the proposed move to Kansas would disrupt the child’s school environment, there is no allegation of harm or change to the family environment for Gray and the child. The relationship was 12continuously fostered by the father’s love, affection and other emotional ties since the time of the initial judgment.

With this fact setting, which involves only a change in the out-of-state location of the domiciliary parent, the question presented concerns how the special relocation act (La. R.S. 9:355.1, et seq.) (hereinafter the “Act”) applies a second time in light of the important considerations of Bergeron.

At the time of the initial decision allowing Gray to remain as domiciliary parent in the 2007 relocation to Alabama, the “considered decree” adjudicated the custody dispute under the special multiple factor test of Section 9:355.12 of the Act. Again, in Bruner’s present action to modify custody, the trial court considered the test of Section 9:355.12 and placed the burden of proof on Gray under Section 9:355.13 as the parent proposing the relocation. The enumeration of the many factors in Section 9:355.12 parallels the listing of the multiple factor test of Civil Code Article 134 with special emphasis on the logistical and economic circumstances associated with a relocation and, particularly in this case, an out-of-state relocation. Factor 12 of Section 9:355.12 brings “any other factor affecting the best interest of the child” into consideration in the relocation contest, thereby requiring review of the Article 134 factors. Indeed, the best interest of the child is always paramount. Therefore, in the time span of only 24 months, separate trial judges made conflicting Section 9:355.12 rulings concerning Gray’s out-of-state residency.

| .-¡Some of the justifications for the heavy burden of proof of the Bergeron ruling concerned protecting parties and the child from vexation and expense attendant to multiple unjustified lawsuits, conserving judicial resources, and minimizing the possibility of inconsistent decisions. Berger-on, supra, at 1195. These procedural concerns address the substantive best interest of the child principle. Citing the prior ruling of the court in Turner v. Turner, 455 So.2d 1374 (La.1984), the Bergeron court emphasized that “the important thing is not to abuse the children by dragging them constantly through the court system, when there has not been a real change in circumstances sufficient to justify a change in custody.”

The significant change in circumstance which was adjudicated in this case in 2007 was the out-of-state relocation. At that time, the nexus of joint custody operating in Louisiana was first broken. The Act’s special framework to adjudicate the parental sharing of custody was employed at that time, resulting in a decision to allow Gray to remain as domiciliary parent and move a great distance away from the state. With out-of-state relocation at the center of the controversy in 2007, the critical best interest of the child determination was that the child should be with Gray for the greater amount of time.

Despite Gray’s move from Alabama to Kansas, no change in the multistate status of the existing custody arrangement and no significant change in the distance between the parents have occurred. The new location of residence is thus similar to an intrastate move by a domiciliary parent. In such cases before and after the Act, “it has been held that an intrastate move |4is not per se a material change of circumstances such that a court may presume that it will materially affect the child’s welfare without further evidence.” Major v. Major, 02-2181 (La.App. 1st Cir.2/14/03), 849 So.2d 547, and cases cited therein. See also, Cooley v. Cooley, 94-251 (La.App. 3d Cir.10/5/94), 643 So.2d 408; Bercegeay v. Bercegeay, 96-0516 (La. App. 1st Cir.2/14/97), 689 So.2d 674. Such intrastate relocation by the domiciliary parent usually disrupts the child’s school environment, but that is not automatically a material change in circumstances that allows parents abiding under existing custodial consent decrees to seek a change in custody. We likewise do not view the additional distance now involved with this multistate custody arrangement as amounting to a “material change of circumstances,” which is a lesser measure for a change of custody than the heavy burden of Bergeron.

Reviewing the provisions of the Act, we find that the Bergeron concerns are not legislatively overridden in a case seeking relitigation under the Act. This is an out-of-state relocation situation, falling under the Section 9:355.1(4)(a) definition of relocation as “intent to establish legal residence with the child at any location outside of the state.” Id. In the light of Bergeron, the correct reading of the definition is that the initial establishment, founding or beginning of that out-óf-state residency is the Act’s concern for adjudication. That adjudication occurred in 2007 and out-of-state residency by the domiciliary parent was decided.

1 sEven more significant, the applicability of the Act is limited in Section 9:355.2(B), as follows:

To the extent that a provision of this Subpart conflicts with an existing custody order, this Subpart shall not apply to the terms of that order that governs relocation of the child.

When Bruner filed her rule to change custody, there was “an existing custody order ... that governfed] relocation of the child,” which was a considered decree under Bergeron and satisfied all the criteria of Section 9:355.12. The conflict which has now arisen between the initial trial judge’s custody determination and the present trial court ruling is within the meaning of “conflict” which Section 9:355.2(B) addresses and clearly within the important concerns of Bergeron. The trial court erred in allowing the parties to relitigate the issues previously resolved under Sections 355.12 and 355.13.

Accordingly, there being no showing that the child’s continued custody with Gray will be so deleterious to the child as to justify a change in custody, the ruling of the trial court is reversed. Costs of appeal are assessed to appellee.

REVERSED.

WILLIAMS, J., dissents with written reasons.

STEWART, J., dissents for reasons assigned by Judge WILLIAMS.

WILLIAMS, J.,

dissents.

hi respectfully dissent for the reasons expressed in the original opinion, in addition to the following remarks in response to the creative legal reasoning displayed in the majority opinion.

Despite the asserted strict adherence to Bergeron, the majority ignores the second part of the heavy burden standard, which provides for a change in custody after a considered decree upon clear and convincing proof that the harm likely to be caused by a change of environment is substantially outweighed by the advantages to the child. Significantly, the majority also fails to mention the appellate standard of review reaffirmed by Bergeron, in which the supreme court mandates that on appeal, the trial court’s determination in child custody matters is entitled to great weight and the court’s discretion shall not be disturbed on review absent a clear abuse of discretion.

In this case, the trial court carefully considered the best interest of the child, finding that there would be a substantial benefit to the child in residing with his mother in close proximity to his grandparents and extended family and that there was little likelihood of harm to the child by a change in physical custody. The trial court’s determination was reasonably supported by the record, which shows that the child’s home environment was disrupted by relocations twice within one year and that the child’s education was interrupted by the father’s conduct in moving the child to yet another state in violation of the existing court order. The majority has simply substituted its own view of the evidence for that of the trial court in | ^disregard of the proper standard of appellate review.

In addition, the majority has not presented any persuasive legal authority for the assertion that once a relocation issue has been decided by a district court, Ber-geron prohibits the consideration of any subsequent relocation of the child, regardless of the particular circumstances of such a proposed relocation. Nor does the statute support the majority’s contention that after an initial relocation has occurred, the relocating parent is then relieved of the burden of proving that another move is in the child’s best interest. To the contrary, the express language of LSA-R.S. 9:355.13 places the burden of proof on the parent seeking relocation. There was no showing that the Legislature intended any different burden for subsequent relocations.

Similarly, the statutory language contradicts the majority’s assertion that the definition of relocation means only the first out-of-state relocation. The reference in Section 9:355.1(4) to “any location outside of the state” would reasonably include a move to Kansas, whether or not there had been a previous residence in Alabama. Finally, I would suggest that Section 9:355.2(B) must be read in conformity with the preceding paragraph, which merely addresses the applicability of the law based upon its effective date. Thus, this statutory provision cannot reasonably be interpreted as a limitation on the trial court’s ability to consider the relocation issue in this case. Based upon this record and the applicable law, I would affirm the trial court’s judgment.

APPLICATION FOR REHEARING

Before WILLIAMS, STEWART, CARAWAY, DREW and MOORE, JJ.

Rehearing application of Christy Gray denied.

WILLIAMS and STEWART, JJ., would grant rehearing.

      . A "material change of circumstances” is the legal measure for change of custody consideration where the original custody decree was not the result of a "considered decree.” Evans v. Lungrin, 97-0541, 97-0577 (La.2/6/98), 708 So.2d 731. The "considered decree” setting is governed by Bergeron.


author: MARC E. JOHNSON, Judge.

text:
    Geri Miah HARDING v. RAISING CANES USA L.L.C. and Tim Barfield, Director, Louisiana Workforce Commission.
    No. 10-CA-320.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 23, 2010.
    Rehearing Denied March 17, 2011.

      Gen Miah Harding, Harvey, LA, for Plaintiff/Appellant in Proper Person.
    Andrew P. Burnside, Erin R. Wedge, Attorneys at Law, New Orleans, LA, for Defendant/Appellee.
    Cynthia T. Batiste, Legal Division, Louisiana Workforce Commission, Baton Rouge, LA, for Defendant/Appellee.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., WALTER J. ROTHSCHILD, and MARC E. JOHNSON.
   MARC E. JOHNSON, Judge.

| ¡.Plaintiff/Appellant, Geri Miah Harding (hereinafter referred to as “Ms. Harding”), in proper person, appeals the dismissal with prejudice of her claim through the maintaining of an exception of peremption by in favor of Defendants/Appellees, Raising Cane’s USA, L.L.C. (hereinafter referred to as “Raising Cane’s”), the Louisiana Workforce Commission and Tim Barfield (collectively hereinafter referred to as “the Louisiana Workforce Commission”) by the 24th Judicial District Court, Division “J.” For the following reasons, we affirm and, further, grant a peremptory exception of peremption in favor of the Louisiana Workforce Commission.

According to the record and the briefs, this claim arises from a claim for unemployment compensation benefits filed by Ms. Harding in connection with the termination of her employment by Raising Cane’s. On July 7, 2008, Raising Cane’s discharged Ms. Harding from her employment citing poor performance and attendance as reasons for the termination. Ms. Harding filed a claim for ^unemployment benefits on July 20, 2008. A “Notice of Claim Determination” was mailed to Ms. Harding on September 17, 2008 by the Louisiana Workforce Commission. In the notice, Ms. Harding was informed that she had been disqualified for unemployment compensation benefits because she was discharged from her employment due to failure to abide by company rules/policies. On October 1, 2008, Ms. Harding appealed the claim determination to the Louisiana Workforce Commission’s Appeals Tribunal.

A decision from the Administrative Law Judge was mailed to Ms. Harding on December 17, 2008. In the decision, the disqualification of Ms. Harding from unemployment compensation benefits was affirmed. Subsequently, Ms. Harding filed an appeal of the Administrative Law Judge’s decision to the Louisiana Board of Review on December 81, 2008. On February 27, 2009, the Louisiana Board of Review mailed Ms. Harding a “Findings and Decision of Board of Review upon Review of Claim for Benefits” letter, which affirmed the decision of the Administrative Law Judge. The letter was mailed to the correct address of Ms. Harding.

Ms. Harding filed her “Petition for Judicial Review,” which appealed the decision of the Louisiana Board of Review, with the 24th Judicial District Court on March 30, 2009, against Raising Cane’s and the Louisiana Workforce Commission. In response, Raising Cane’s filed its answer on May 14, 2009. Subsequently, Raising Cane’s filed its peremptory exception of peremption to Ms. Harding’s petition on June .30, 2009. Afterwards, Raising Cane’s and Ms. Harding filed memorandums in support and in opposition of the peremptory exception of peremption. On September 8, 2009, the Louisiana Workforce Commission filed its memorandum in support of the peremptory exception of peremption to Ms. |4Harding’s petition.

The hearing for the peremptory exception of peremption was held on September 4, 2009. The trial court rendered its “Judgment of Exception” on September 30, 2009. In its judgment, the trial court sustained the exception of peremption in favor of Raising Cane’s and the Louisiana Workforce Commission and dismissed Ms. Harding’s petition with prejudice. From that decision, the instant appeal was timely filed.

On appeal, Ms. Harding alleges the trial court erred as a matter of law by recognizing that LSA-R.S. 28:1680 and LSA-R.S. 23:1634 set forth peremptive periods, and the trial court erred as a matter of law by neglecting her constitutional argument for allowance for fraud protection and due process of law when applying LSA-R.S. 23:1630 and LSA-R.S. 23:1634.

LSA-R.S. 23:1634 provides, in pertinent part,

A. Within the time specified in R.S. 23:1630, the administrator, or any party to the proceedings before the board of review, may obtain judicial review thereof by filing in the district court of the domicile of the ■ claimant a petition for review of the decision, and in such proceeding any other party to the proceeding before the board of review shall be made a party defendant ... (Emphasis added).

In regards to the time delay for filing for judicial review of a decision of the board of review, LSA-R.S. 23:1630(B) provides, in pertinent part,

... Such decision shall be final unless, within fifteen days after the mailing of notice thereof to the party’s last known address, or, in the absence of such mailing, within fifteen days after the delivery of such notice, a proceeding for judicial review is initiated pursuant' to R.S. 23:1634 ... (Emphasis added).

LSA-C.C. art. 3458 provides that “[pjeremption is a period of time fixed by law for the existence of a right. Unless timely exercised, the right is extinguished |supon the expiration of the peremptive period.” See also Lee v. Professional Const. Services, Inc., 07-865, p. 5 (La.App. 5 Cir. 3/11/08); 982 So.2d 837, 840. Peremption may be pleaded or supplied by the court’s own motion. LSA-C.C. art. 3460. Peremption may not be renounced, interrupted, or suspended. LSA-C.C. art. 3461.

Peremption, however, has been likened to prescription. Lee v. Professional Const. Services, Inc., supra, citing Flowers, Inc. v. Rausch, 364 So.2d 928, 931 (La.1978). As such, it follows that the following rules governing the burden of proof as to prescription apply to peremption:

If prescription is evident on the face of the pleadings, the burden shifts to the plaintiff to show the action has not prescribed. If evidence is introduced at the hearing on the peremptory exception of prescription, the district court’s findings of fact are reviewed under the manifest error-clearly wrong standard of review. 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. Id.

In the instant case, the Louisiana Board of Review mailed Ms. Harding notice of its decision to her mailing address on February 27, 2009. Ms. Harding does not dispute the fact that she did receive the notice at her mailing address. Ms. Harding had the opportunity to file a petition for judicial review within fifteen days of the mailing of the notice. However, Ms. Harding did not file her petition until March 30, 2009, which was filed well outside of the time delay.

At the hearing on the peremptory exception, the argument was raised that the 15-day time delay did not apply to Ms. Harding because the fraud was committed by the Louisiana Workforce Commission. The trial judge attempted several times to elicit how the alleged fraud by the Louisiana Workforce Commission hindered Ms. Harding from filing her petition within the time delays. No explanation was offered to explain how the alleged fraud correlated to the filing of Ms. Harding’s | (¡petition for judicial review.

Accordingly, we find no error in the trial court’s ruling sustaining Raising Cane’s peremptory exception of peremption. Due to the expiration of the 15-day time delay prior to Ms. Harding’s filing for judicial review with the trial court and the lack of evidence presented at trial, the action was untimely filed. The expiration of the peremptory period extinguished Ms. Harding’s claim in full. Because Ms. Harding’s claim is extinguished, we cannot address the merits of her claims of fraud committed by the Louisiana Workforce Commission. Additionally, although it did not file its own peremptory exception of prescription, we recognize on our own motion that Ms. Harding’s action against the Louisiana Workforce Commission is extinguished due to peremption.

DECREE

For the reasons stated above, the sustaining of the peremptory exception of per-emption by the trial court in favor of Raising Cane’s is affirmed. Additionally, we grant a peremptory exception of peremption in favor of Tim Barfield and the Louisiana Workforce Commission on our own motion. Raising Cane’s and the Louisiana Workforce Commission are to each bear their own costs for this appeal.

AFFIRMED; EXCEPTION OF PER-EMPTION GRANTED.

      . Although the Louisiana Workforce Commission filed a memorandum in support of the peremptory exception of peremption, there is no evidence in the appellate record of its own filing of a peremptory exception of peremption.

      . Pursuant to LSA-R.S. 23:1692, no individual claiming benefits shall be charged fees or costs of any kind by any court, unless a court determines that the claimant instituted or continued the proceedings frivolously. Because Ms. Harding is a claimant and has not been found to frivolously instituted or continued the proceedings, she cannot be assessed any costs for this appeal.