author: THERIOT, J.

text:
    J. REED CONSTRUCTORS, INC. v. ROOFING SUPPLY GROUP, L.L.C.
    No. 2012 CA 2136.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 1, 2013.
    Rehearing Denied April 17, 2014.

      John S. McLindon, Baton Rouge, LA, for Plaintiff/Appellee, J. Reed Constructors, Inc.
    Stephen F. Chiccarelli, Justin Stephens, Baton Rouge, LA and Brandy N. Sheely, New Orleans, LA, for Defendant/Appellant, Roofing Supply Group, L.L.C.
    Before KUHN, HIGGINBOTHAM, and THERIOT, JJ.
   THERIOT, J.

| ¡.This is an appeal of the trial court’s interpretation of the materialman’s notice-of-nonpayment requirement found in the Louisiana Public Works Act (LPWA) at La. R.S. 38:2242(F). The question presented is whether a single notice given within seventy-five days of the last delivery of roofing supply materials for a public works project was timely as to the supplier’s claim for payment on all materials delivered pursuant to the open-account arrangement. For the following reasons, we affirm the district court’s judgment.

FACTS AND PROCEDURAL HISTORY

The relevant facts are not in dispute. Plaintiff, J. Reed Constructors, Inc. (J. Reed), was the general contractor on a public works project for the owner, Ascension Parish School Board (School Board), which included a roof replacement at East Ascension High School. In connection ■with the project, J. Reed entered into several subcontracts, one of which involved a roofing subcontractor, A & L Systems, Inc. (A & L). A & L purchased roofing supplies and materials on open account from defendant, Roofing Supply Group, L.L.C. (RSG). At various times throughout June, July, August, and September 2011, with the last delivery occurring on September 26, 2011, RSG delivered roofing supplies and materials to the project site pursuant to multiple purchase orders by A & L. Each delivery was accompanied by an invoice reflecting due date terms of “NET 2ND 10TH,” along with an actual due date for payment that was the tenth day of the second month after each delivery. A & L failed to pay RSG for all of the supplies and materials, which at the end of the four months of deliveries the unpaid amount totaled $268,056.29.

On December 8, 2011, RSG sent written notice to J. Reed and the School Board, informing the general contractor and the project owner of A & L’s nonpayment of invoices in connection with the deliveries of roofing supplies and materials for the public works project. It is undisputed that the notice-oflnonpayments letter was received by J. Reed and the School Board within seventy-five days of the date of RSG’s last delivery date. When RSG did not receive payment after notifying J. Reed and the School Board, RSG filed and recorded its materialman’s claim in the amount of $268,056.29 on December 22, 2011.

In response, J. Reed filed a Rule to Show Cause in the 23rd Judicial District Court as to why RSG’s lien claim should not be cancelled. J. Reed maintained that RSG’s notice of nonpayment was untimely under the LPWA, contending that the notice must be provided within seventy-five days of each separate month in which materials are delivered in order to preserve a materialman’s claim; thus, according to J. Reed, RSG lost its right to file a lien as to deliveries made in June, July, and August 2011. RSG opposed J. Reed’s rule, arguing that the LPWA does not require multiple notices of nonpayment, but rather, a single notice is required to be given within seventy-five days from the last day of the last month in which material is delivered. After a hearing in which evidence of the invoices and purchase orders was introduced, the district court ruled in favor of J. Reed, determining that RSG’s notice was untimely as to all deliveries made before September 2011, and therefore, $148,188.00 of RSG’s claim was not allowed.

The district court signed a judgment on July 26, 2012, which states in part “It is the further finding of this Court that all of the remaining invoices, totaling $119,867.42, are properly a part of the claim filed by Roofing Supply Group in that the notice to J. Reed Constructors, Inc. was timely as to those deliveries.” The district court denied RSG’s motion for new trial in a separate judgment signed on September 25, 2012. RSG appealed both judgments. RSG argues that the district court erred in interpreting La. R.S. 38:2242(F) to require monthly or multiple notices in order to preserve the right to file a lien against a public works project for unpaid supplies and materials. RSG also assigned error to the district court’s denial of its motion for new trial; however, RSG did not brief the alleged error regarding the motion for new trial or point to any evidence to suggest the district |4court abused its discretion in denying the motion for new trial. When an appellant fails to brief an assignment of error, the appellate court may deem that assignment abandoned. See Uniform Rules — Courts of Appeal, Rule 2-12.4. We find the assignment of error pertaining to the denial of the motion for new trial abandoned. Accordingly, we will only consider RSG’s specification of error regarding the district court’s interpretation of the notiee-of-non-payment requirement found in La. R.S. 38:2242(F).

LAW AND ANALYSIS

The judgment of the district court was based on its interpretation of La. R.S. 38:2242(F). The interpretation of a statute is a question of law. Clements v. Folse ex ret Succession of Clements, 2001-1970, p. 5 (La.App. 1 Cir. 8/14/02), 830 So.2d 307, 312, writ denied, 2002-2328 (La.11/15/02), 829 So.2d 437. Appellate review of questions of law is simply to determine whether the district court was legally correct or legally incorrect. Id. On legal issues, the appellate court gives no special weight to the findings of the district court, but exercises its constitutional duty to review questions of law de novo and renders judgment on the record. Id.; Times Picayune Pub. Corp. v. Board of Sup’rs of Louisiana State University, 2002-2551, p. 6 (La.App. 1 Cir. 5/9/03), 845 So.2d 599, 605, writ denied, 2003-1589 (La.9/5/03), 852 So.2d 1044.

In Louisiana, public construction contracts, are governed by the LPWA, La. R.S. 38:2241-3410, which is sui generis and provides exclusive remedies to parties in litigation arising out of a public work. State Through Div. of Admin, v. McInnis Bros. Const., 97-0742, p. 9 (La.10/21/97), 701 So.2d 937, 944. “[Pjublic contract laws are to be strictly construed such that the privileges granted are not extended beyond the statutes.” Id., quoting Wilkin v. Dev Con Builders, Inc., 561 So.2d 66, 71 (La.1990). In the LPWA, a “claimant” includes any person to whom money is due pursuant to a contract with the owner, contractor, or subcontractor for furnishing materials or supplies for construction of any public works. La. R.S. |S38:2242(A). Additionally, any claimant “may after the maturity of his claim and within forty-five days after the recordation of acceptance of the work ... file a sworn statement of the amount due him ... and record it....” La. R.S. 38:2242(B). However, the materi-alman claimant must first comply with the notice and recordation requirements of La. R.S. 38:2242(B) and (F) in order to preserve the right to file a privilege or lien. See Interstate School Supply Co. v. Guitreau’s Const. & Consulting Co., Inc., 542 So.2d 138 (La.App. 1 Cir.1989); Teche Elec. Supply, L.L.C. v. M.D. Descant, Inc., 2008-171, p. 9 (LaApp. 3 Cir. 12/11/08), 2 So.3d 516, 522, writ denied, 2009-0086 (La.3/27/09), 5 So.3d 141; Electric Supply Co., Inc. v. Great American Ins. Co., Inc., 42,727, pp. 5-6 (La.App. 2 Cir. 12/12/07), 973 So.2d 827, 830-31.

The relevant portion of the LPWA that specifically pertains to the right to file a materialman’s lien is outlined at La. R.S. 38:2242(7), which provides:

F. In addition to the other provisions of this Section, if the materialman has not been paid by the subcontractor and has not sent notice of nonpayment to the general contractor and the owner, then the materialman shall lose his right to file a privilege or lien on the immovable property. The return receipt indicating that certified mail was properly addressed to the last known address of the general contractor and the owner and deposited in the U.S. mail on or before seventy-five days from the last day of the month in which the material was delivered, regardless of whether the certified mail was actually delivered, refused, or unclaimed satisfies the notice provision hereof or no later than the statutory lien period, whichever comes first. The provisions of this Subsection shall apply only to disputes arising out of recorded contracts. (Emphasis added.)

Clearly, notice-of-nonpayment to the general contractor and owner is required by La. R.S. 38:2242(F) if the materialman desires to preserve his lien.

Although interpretation of the notice-of-nonpayment requirement in La. R.S. 38:2242(F) presents a res nova issue, our inquiry is guided by well-established principles of statutory interpretation. The function of statutory interpretation and the construction to be given to legislative acts rests with the judiciary. Livingston Parish Council on Aging v. Graves, 2012-0232, p. 3 (La.12/4/12), 105 So.3d 683,1,685. The rules of statutory construction are designed to ascertain and enforce the intent of the legislature, as well as determine the reasons that prompted the legislature to enact the law to begin with. Id. at p. 4; State v. Dick, 2006-2223, pp. 8-9 (La.1/26/07), 951 So.2d 124, 130. The starting point in the interpretation of any statute is the language of the statute itself. Dick at p. 9, 951 So.2d at 130. Words and phrases shall be read in context and shall be construed according to the common and approved usage of the language. La. R.S. 1:3; Moreno v. Entergy Corp., 2012-0097, p. 12 (La.12/4/12), 105 So.3d 40, 48. The words of a law must be given their generally prevailing meaning. La. C.C. art. 11.

We find La. R.S. 38:2242(F) is clear and unambiguous. To preserve his right to file a privilege or lien on the immovable property, the materialman SHALL deposit in the U.S. mail, via certified mail, notice of nonpayment before seventy-five days from the last day of the month in which material was delivered or no later than the statutory lien period, whichever comes first. Regardless of the month of delivery or the number of deliveries, the seventy-five-day period commences on the last day of that month.

When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature. La. C.C. art. 9. It is not the function of the judicial branch to legislate by inserting provisions into statutes where the legislature has chosen not to do so. See Carter v. Duke, 2005-0390, p. 10 (La.1/19/06), 921 So.2d 963, 970. It is for the legislative branch to remedy the deficiencies in the statutory scheme, if it should so desire. Foti v. Holliday, 2009-0093, p. 13 (La.10/30/09), 27 So.3d 813, 821.

CONCLUSION

Accordingly, we affirm the judgment of the district court. All costs of this appeal are to be paid by defendant-appellant, Roofing Supply Group, L.L.C.

AFFIRMED.

HIGGINBOTHAM, J„ Dissents and Assigns Reasons.

HIGGINBOTHAM, J.

|;I respectfully disagree with the majority opinion, and for the following reasons, I would reverse the district court’s judgment, because I find that the supplier’s single notice-of-nonpayment within 75 days of the last delivery was timely as to all unpaid deliveries of materials.

The statute at issue is ambiguous. It is not clear whether subsection (F) of La. R.S. 38:2242 requires that only one notice-of-nonpayment as to all deliveries is required to be issued within 75 days of the last day of the month of the last delivery or whether multiple notices-of-nonpayment must be sent within 75 days of each month in which material is delivered. I find that the relevant portion of subsection F is poorly drafted and is susceptible to different interpretations. The ambiguity in the meaning and grammatical structure of the provision makes both parties’ constructions of the statute at least possible, when viewing the disputed section in isolation. Either, of the stated interpretations requires the insertion of extra or different words to reach the desired result; i.e., inserting “all of’ before “the material was delivered,” or “notices” in place of “notice,” and “each month” instead of “the month.” However, as the majority points out, it is not the function of the judicial branch to legislate by inserting provisions into statutes where the legislature has chosen not to do so. Carter v. Duke, 2005-0390 (La.1/19/06), 921 So.2d 963, 970. It is for the legislative branch to remedy the deficiencies in the ^statutory scheme, if it should so desire. Foti v. Holliday, 2009-0093 (La.10/30/09), 27 So.3d 813, 821.

This particular issue — the timeliness of a notice-of-nonpayment under an open account arrangement between a supplier and subcontractor on a public works project— has never been addressed by a Louisiana state court. In Teche Elec. Supply, L.L.C. v. M.D. Descant, Inc., 2008-171 (La.App. 3d Cir. 12/11/08), 2 So.3d 516, 518, writ denied, 2009-0086 (La.3/27/09), 5 So.3d 141, the issue was listed as an assignment of error raised by the defendants; however, the case was resolved without reaching the merits of the issue, because the defendants in that case failed to furnish any notice of nonpayment before they filed their lien. Id., 2 So.3d at 522. In WP America, Inc. v. Design Build Development Services, Inc., 41,652 (La.App.2d Cir.1/31/07), 951 So.2d 461, 468, the facts were similar in that a roofing subcontractor obtained supplies from a roofing supply company pursuant to an open account arrangement on a public works project involving a school addition. In that case, the materialman’s lien was filed before the letter demanding payment was sent to the general contractor; however, the court did not discuss the notice-of-nonpayment requirement in subsection (F), because the 1999 amendment to the statute did not become effective until after the last delivery of materials occurred in that case. Thus, the court in WP America, 951 So.2d at 469-470, was bound by the prior law when it held that the supplier was entitled to recover for all of the material it furnished for the public works project even though the supplier filed the hen before sending the additional notice required by a different statute (La. R.S. 38:2247). See Teche Elec. Supply, 2 So.3d at 522.

Our res nova inquiry into the proper interpretation of La. R.S. 38:2242(F) is guided by well-established principles of statutory interpretation that are designed to ascertain and enforce the intent of the legislature, as well as determine the reasons that prompted the legislature to enact the law to begin with. See \%Livingston Parish Council on Aging v. Graves, 2012-0232 (La.12/4/12), 105 So.3d 683, 685; State v. Dick, 2006-2223 (La.1/26/07), 951 So.2d 124, 130. Thus, when the judiciary applies a statute to a specific set of facts, it is necessary to interpret the statute in a manner that is consistent with the legislative intent.

The Louisiana Supreme Court has already determined many years ago that the LPWA is intended to protect those supplying labor and furnishing materials for public works projects. See Wilkin v. Dev Con Builders, Inc., 561 So.2d 66, 70 (La.1990). See also Slagle-Johnson Lumber Co., Inc. v. Landis Const. Co., Inc., 379 So.2d 479, 486 n. ** (La.1979) (on rehearing). The statute provides a method by which a ma-terialman can recover sums due for materials furnished to a subcontractor on a public works project. While protecting those who supply labor and furnish materials, the risk of loss is shifted to the general contractor and the surety. It is with this stated legislative intent in mind, that we should interpret the notice-of-nonpayment provision in La. R.S. 38:2242(F) to determine whether the materialman’s statutory notice-of-nonpayment provision is triggered by each month of unpaid deliveries or by the month of the final delivery of unpaid materials.

The majority correctly states that the starting point in the interpretation of any statute is the language of the statute itself Dick, 951 So.2d at 130. Furthermore, words and phrases shall be read in context and shall be construed according to the common and approved usage of the language. La. R.S. 1:3; Moreno v. Entergy Corp., 2012-0097 (La.12/4/12), 105 So.3d 40, 48. When a law is susceptible to different meanings, “it must be interpreted as having the meaning that best conforms to the purpose of the law.” La. Civ.Code art. 10. Moreover, “[w]hen the words of a law are ambiguous, their meaning must be sought by examining the context in which they occur and the text of the law as a whole.” La. Civ.Code art. 12. Courts should give effect to all parts of a statute |4and should not adopt a statutory construction that makes any part superfluous or meaningless, if that result can be avoided. SWAT 21). Shreveport Bossier, Inc. v. Bond, 2000-1695 (La.6/29/01), 808 So.2d 294, 302. Additionally, courts should avoid constructions that render legislation absurd; rather, statutes should be interpreted in a manner that renders the meaning rational, sensible, and logical. State Through Dept, of Public Safety and Corrections, Office of State Police, Riverboat Gaming Div. v. Louisiana Riverboat Gaming Com’n and Horseshoe Entertainment, 94-1872 (La.5/22/95), 655 So.2d 292, 302.

With these principles in mind, my focus turns to the controversial and confusing text found in subsection (F), stating that the materialman’s notice-of-nonpayment sent to the general contractor and the owner “on or before seventy-five days from the last day of the month in which the material was delivered ... satisfies the notice provision[,]” thereby preserving the materialman’s right to file a lien on the immovable property that is the subject of the public works project. La. R.S. 38:2242(F) (emphasis added). Since there is no Louisiana case interpreting this particular statute under an open account arrangement. I have looked for guidance in federal case law, where the federal courts have interpreted a parallel statute, the “Miller Act” at 40 U.S.C. § 3133(b)(2) (formerly cited as 40 U.S.C. § 270(b)), along with similar provisions in other states’ statutes. The federal case law is helpful since the various versions of individual state statutes strongly resemble the model Miller Act, all with the same remedial purpose of protecting suppliers of labor and materials.

Like the LPWA, the Miller Act requires written notice to the prime contractor by a claimant who has a contractual relationship with a subcontractor on a public works project and has not received payment for delivery of materials. | ^However, rather than 75 days from “the last day of the month in which the material was delivered,” the Miller Act requires the notice to be given within 90 days from the date the claimant “performed the last labor or furnished or supplied the last of the material for which the claim is made.” See 40 U.S.C. § 8133(B)(2) (emphasis supplied). Nevertheless, under both the Miller Act and the LPWA, fulfilling the notice provision is a strict condition precedent to recovery. See U.S. for Use and Ben. of Water Works Supply Corp. v. George Hyman Const. Co., 131 F.3d 28, 31 (1st Cir. 1997). The notice provision serves an important purpose: it establishes a firm date after which the general contractor may pay its subcontractors without fear of further liability to the materialmen or suppliers of those subcontractors. Id., 131 F.3d at 32.

While there has been a split in federal decisions throughout the country, I find the better view holds that if a Miller Act claimant is making a series of deliveries under an open account arrangement, that claimant need only give notice-of-nonpayment within 90 days of the last delivery to recover for all previous deliveries under the contract, as long as there has not been a delivery gap of over 90 days. See Specialty Products & Insulation Co. v. St. Paul Fire & Marine Ins. Co., 99 N.Y.2d 459, 465, 788 N.E.2d 604, 607, 758 N.Y.S.2d 255, 258 (2003). By far, the weight of authority in federal case law holds that notice for the entire unpaid portion for deliveries made on an open account runs from the last delivery of materials. See George Hyman Const., 131 F.3d at 34; U.S. for Use of A & M Petroleum, Inc. v. Santa Fe Engineers, Inc., 822 F.2d 547, 548 (5th Cir.1987).

I agree with this interpretation, especially when considered alongside the legislative objective of protecting and promoting prompt payment to laborers and material suppliers. See Specialty Products, 99N.Y.2d at 465, 788 N.E.2d at 607, 758 N.Y.S.2d at 258. Additionally, I note that this is the conclusion of most | f,federal courts considering this same issue under the Miller Act when comparing similar state statutes. Id., 99 N.Y.2d at 466, 788 N.E.2d at 608, 758 N.Y.S.2d at 259, n. 6. This conclusion places the general contractors’ need for fixing a final liability date as secondary to the protection of laborers and material suppliers. Id. See also Noland Co. v. Allied Contractors, Inc., 273 F.2d 917, 920-921 (4th Cir.1959) (where the court reasoned that, although a strict reading of the notice provision might offer more protection to the general contractor, the goal of a specific provision with ambiguities must take a back seat to the purpose of the overall statute, which is to provide recovery for suppliers who have provided materials but not received compensation).

I find that this interpretation of the statute best comports with the purpose of the LPWA as a whole and prevents absurd results. For instance, it would be absurd to require a materialman to provide notice at the end of each month that an unpaid delivery is made when the due date for the supplies and materials ordered pursuant to an open account arrangement are not due until two months following the delivery, as in the case before us with the due date term of “NET 2ND 10TH.” In addition to the absurdity of the requirement, it would be unduly burdensome on suppliers using open accounts to require them to give separate notices-of-nonpayment within 75 days of each month that unpaid materials are delivered, when they have continuous and ongoing invoices for future deliveries and before they are even aware that a previous delivery is past due. A material-man cannot give notice for unpaid supplies and materials when the invoiced amounts have not had time to accrue. Such a construction, requiring repetitious notices abrogates much of the broad protection given materialmen by the statute.

For these reasons, I find that La. R.S. 88:2442(F) requires a materialman’s notice-of-nonpayment concerning deliveries pursuant to an open account arrangement with a subcontractor to be sent to the general contractor and owner |7within 75 days of the last day of the month in which all of the materials are delivered for the public works project, or in other words, when the claim for unpaid deliveries is mature because the supplier has made its final delivery. Thus, RSG’s single notice-of-nonpayment was timely as to all unpaid deliveries in this case, and the district court erred in disallowing the full amount owed for the unpaid materials. I believe this result is in keeping with the legislature’s purpose in enacting the LPWA: to protect the interests of those who supply materials to public works projects with a limit on the time for enforcing the materi-alman’s claim for unpaid materials.

Accordingly, I respectfully dissent from the majority and would reverse the judgment of the district court and render judgment in favor of RSG for the full amount past due, $268,056,29, for the supplies they delivered to the public works project.

      . Subsection F was added by La. Acts 1999, No. 1134, § 2.

      . The Miller Act and its predecessor, the Heard Act, are the federal equivalents to our own public contract law. See Wilkin, 561 So.2d at 71. Although not binding, I find jurisprudence from the federal courts interpreting the similar federal statute to be extremely persuasive in this matter.

      . This interpretation is consistent with the language in subsection (B) of the same statute, where the claimant may only file a claim "after the maturity of his claim and within forty-five days after the recordation of acceptance of the work by the governing authority or of notice of default of the contractor or subcontractor!!]” See La. R.S. 38:2242(B) (emphasis added). The record sub judice does not contain evidence of the date of the recorded acceptance of this public work, and the parties have not made an issue of whether RSG timely filed its statutory lien. Because of this lack of evidence, the additional language in La. R.S. 38:2242(F), "or no later than the statutory lien period, whichever comes first[,j” is not relevant to the analysis.

      . The record contains no indication that any of the invoices or charges for the roofing supplies and materials was ever disputed.


source: Caselaw Access Project

author: KUHN, J.

license: Public Domain

text:
    CITY OF BATON ROUGE and Parish of East Baton Rouge v. F & K INVESTMENTS LLC.
    No. 2013 CA 0501.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 1, 2013.

      Leo J. D’Aubin, Baton Rouge, Louisiana, for Plaintiffs-Appellees, City of Baton Rouge and Parish of East Baton Rouge.
    Robert T. Talley, Baton Rouge, Louisiana, for Defendants-Appellants, F & K Investments, LLC, C. Farrell Fruge, Jr., D.D.S., (APDC) & C. Farrell Fruge, Jr., Individually.

      Before KUHN, HIGGINBOTHAM, and THERIOT, JJ.
   KUHN, J.

1 ^Defendant-appellant, F & K Investments, LLC (F & K), and intervenors-appellants, C. Farrell Fruge, Jr., D.D.S., APDC (Fruge APDC), and C. Farrell Fruge, Jr. individually (Fruge), appeal the trial court’s judgment, which dismisses as untimely their claims for the measure of compensation to which each is entitled as a result of the acquisition of their property by plaintiffs-appellees, the City of Baton Rouge and Parish of East Baton Rouge (City/Parish), for a public purpose. We reverse in part; affirm as amended in part; and remand.

FACTUAL AND PROCEDURAL BACKGROUND

On July 22, 2008, the City/Parish filed a petition, naming F & K as a defendant, which averred that for the purpose of street construction, it was necessary to acquire a tract of land taken from a larger tract in the Coursey Village subdivision believed to be owned by F & K. Alleging that a reasonable price could not be agreed upon, the City/Parish estimated just compensation.

On July 24, 2008, the trial court signed an order directing the deposit of $54,778.00, the highest estimate of the amount of just compensation, into the court’s registry and the surrender of the described property by F & K to the City/Parish. On November 26, 2009, the City/Parish filed into the record a notice of acceptance of work dated September 10, 2009.

F & K answered the lawsuit on June 26, 2012. Additionally, F & K, joined by Fruge APDC and Fruge, asserted claims of entitlement to additional compensation as 13a result of the City/Parish’s acquisition of the subject property, collectively alleging that they had engaged in the delivery of professional dental services to the public and had operated exclusively at the same location since 1986. They averred that prior to the acquisition of the property by the City/Parish, they had made “extensive plans ... to add an additional associate dentist,” expending in excess of $250,000.00 in improvements and projected an increase in net income in excess of $1,500,000.00. Collectively, F & K, Fruge APDC, and Fruge claimed that the additional dentist could not be accommodated “due to loss of parking” and sought reimbursement of those amounts; or alternatively, sought those same amounts “for a replacement facility plus moving costs.” They also requested attorney and expert fees, interest, and costs.

In response, the City/Parish filed motions to dismiss: one, directed at F & K, averred that its claim for additional compensation was untimely; and the other, directed at Fruge APDC and Fruge, urged that these parties had no rights or causes of action relative to the property and that their claims were untimely asserted. After a hearing, the trial court granted both motions and dismissed all claims as having been untimely asserted. F & K, Fruge APDC, and Fruge have appealed.

TIMELINESS OF F & K’S CLAIM

La. R.S. 48:450B, contained in the chapter setting forth authority to expropriate and acquire property prior to judgment (commonly referred to as “quick taking”), provides in relevant part:

Where a portion of a lot, block, or tract of land is expropriated, any defendant may apply for a trial to determine the measure of compensation to which he is entitled, provided:
(1) He files an answer within one year from the date he is served, in the same manner provided for service of the petition, with a copy of the [City/Parish’s] notice of acceptance, which has been filed with the clerk of court of the parish in which the action is pending, declaring that it has finally accepted the construction of the highway project for which the property was expropriated; provided however, that he may file his answer at any time prior thereto;
14 (2) His answer sets forth the amount he claims, including the value of each parcel expropriated and the amount he claims as damages to the remainder of his property;
(3) His damage claim is reasonably itemized;
(4) His answer has a certificate thereon showing that a copy thereof has been served personally or by mail on all parties to the suit who have not joined in the answer.

Urging that the one-year time frame is a prescriptive period, the City/Parish asserts that F & K’s answer, filed on June 26, 2012, well over a year after it was served with the notice of acceptance, was untimely. Thus, the City/Parish contends F & K has waived its right to challenge the amount of just compensation. We disagree.

La. R.S. 48:452 provides:

If a defendant fails to file his answer timely, the [City/Parish] shall thereafter give affirmative notice, by certified mail, to such defendant of the pendency of the proceedings. If an answer is not filed within ten days after the date on which such notice is mailed, the court shall render final judgment fixing just compensation in the amount deposited into the registry of court and awarding that sum to the defendant.

The record does not contain an affirmative notice sent by certified mail from the City/Parish to F & K, and the City/Parish does not maintain that it ever sent one. Thus, under an application of the plain language of La. R.S. 48:452, F & K’s answer is timely since it has until the expiration of ten days after the date the affirmative notice was mailed to file its answer.

The City/Parish contends that interpretation of La. R.S. 48:452 in such a manner nullifies the wording of La. R.S. 48:450B(1). Instead, the City/Parish, suggests that the provisions of La. R.S. 48:452 apply in instances where the expropriating authority has sued more than one defendant, and that the answer filed Rafter the affirmative notice permits a defendant to contest the percentage of just compensation which may be collected by that defendant.

The courts adhere to the established principles of statutory construction, which begin with the language of the statute itself. The paramount consideration in interpreting a statute is ascertaining the legislature’s intent and the reasons that prompted the legislature to enact the law. Laws are presumed to be passed with deliberation and with full knowledge of all existing ones on the same subject. Int’l Paper Co., Inc. v. Hilton, 2007-0290 (La.10/16/07), 966 So.2d 545, 558.

We find no conflict between the provisions of La. R.S. 48:450 and those of La. R.S. 48:452. Prior to its amendment La. Acts 1976, No. 391, La. R.S. 48:452 provided:

Upon failure of the defendant to answer within the times prescribed by Section 450 or Section 451 of this Part, as the case may be, judgment by default may be entered against him. This judgment must be confirmed as in other civil suits and, notwithstanding the periods within which answer is to be filed as prescribed by Section 450 or Section 451, the defendant may file his answer at any time prior to the confirmation of a default judgment against him.
In order to confirm a default it shall not be necessary for the [expropriating authority] to take the testimony of its appraisers but in lieu thereof their appraisal reports shall be filed in evidence and shall constitute prima facie proof of the compensation due defendant.
After the answer has been filed in accordance with this Section or Sections 450 or 451, the [expropriating authority] may fix the case for trial and the clerk of court shall thereupon issue a notice to each defendant of the time fixed for the trial. This notice shall be served at least twenty days before the time fixed for trial and in the same manner provided for the service of citations.

See State Through Dep’t. of Highways v. Baudy, 252 So.2d 553, 554 (La.App. 4th Cir.), writ refused, 259 La. 1048, 254 So.2d 461 (La.1971).

The present version of La. R.S. 48:452 is a streamlined version of the earlier express default judgment procedure through the implementation of an affirmative duty on the expropriating authority to provide a property owner with final notice of his constitutional right to compensation “to the full extent of his loss.” See La. Const. IfiArt. I, § 4(B)(5) (in every expropriation or action to take property, the owner shall be compensated to the full extent of his loss. Except as otherwise provided in the Constitution, the full extent of loss shall include, but not be limited to, the appraised value of the property and all costs of relocation, inconvenience, and any other damages actually incurred by the owner because of the expropriation). Accordingly, the trial court’s conclusion dismissing F & K’s claims is reversed.

TIMELINESS OF INTERVENORS’ CLAIMS

According to the allegations of their pleading, Fruge APDC and Fruge joined with F & K in a demand for additional compensation. Although they assert that along with F & K they “are collectively engaged in the delivery of professional dental services to the public in a solo practice under the name of C. Farrell Fruge, Jr., D.D.S., and have operated exclusively at the same location since 1986,” neither has been named a defendant in this expropriation suit. Thus, their claims are properly asserted as intervenors rather than plaintiffs-in-reconvention. See La. C.C.P. arts. 1061A (the defendant in the principal action may assert in a reconven-tional demand any causes of action which he may have against the plaintiff in the principal action) and 1091 (a third person having an interest therein may intervene in a pending action to enforce a right related to or connected with the object of the pending action against one or more of the parties thereto by uniting with defendant in resisting the plaintiffs demand).

The trial court sustained the City/Parish’s peremptory exception raising the objection of prescription, finding that inter-venors’ claims were untimely asserted. On appeal, intervenors challenge that conclusion. Before addressing the correct prescriptive period applicable to these in-tervenors’ claims, we must first determine whether they have an interest in property that the City/Parish has taken from them without compensating them. See State Dep’t. of Transp. and Dev. v. Jacob, 488 So.2d 592, 595 (La.1986).

We begin by examining the contents of the intervenors’ pleading. Although they aver, along with F & K, the collective engagement in dental services and an exclusive operation at the same location, they do not identify the location or allege any direct connexity with the expropriated property. While a liberal reading of their allegations leads to an inference of some arrangement with F & K, whom they have joined in their intervention claims, there is no allegation describing the nature of their interest in the expropriated property.

This court may raise on our own motion a peremptory exception objecting on the basis of the failure of the pleading to disclose a right of action. See La. C.C.P. art. 927B. The function of the exception of no right of action is to determine whether the intervenors belongs to a class of persons to whom the law grants the cause of action asserted in the suit. The focus in an exception of no right of action is on whether the particular interve-nors have a right to bring the suit, but it assumes that the pleading states a valid cause of action for some person and questions whether this party is a member of the class that has a legal interest in the subject matter of the litigation. See Gibbs v. Delatte, 2005-0821 (La.App. 1st Cir.12/22/05), 927 So.2d 1181, 1135, writ denied, 2006-0198 (La.4/24/06), 926 So.2d 548.

[^Because intervenors have failed to set forth facts sufficient to ascertain what property the City/Parish has allegedly taken from them without compensating them to the full extent of their loss, they have failed to state a right of action entitling them to relief. Thus, although the trial court correctly granted the City/Parish’s motion to dismiss, the correct basis was intervenors’ failure to state a right of action.

When the grounds of the objection pleaded by the peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court. La. C.C.P. art. 934. Accordingly, the matter is remanded to the trial court with instructions that an order be issued to intervenors to amend their pleading to state a right of action against the City/Parish within a delay deemed reasonable by the trial court.

DECREE

Accordingly, for these reasons, that portion of the trial court’s judgment granting the City/Parish’s motion to dismiss and dismissing F & K’s claim for additional compensation is reversed. That portion of the trial court’s judgment granting the City/Parish’s motion to dismiss interve-nors’ claims on the basis of prescription is amended to dismiss intervenors’ claims on the basis of failing to state a right of action; and, as amended, is affirmed. Appeal costs in the amount of $587.50 are assessed one-half to the City of Baton Rouge and Parish of East Baton Rouge and one-half to C. Farrell Fruge, Jr., D.D.S., APDC and C. Farrell Fruge, Jr. individually.

REVERSED IN PART; AMENDED AND, AS AMENDED, AFFIRMED IN PART; REMANDED WITH ORDER.

      . The property is described as "Parcel 1-7, being a certain parcel or tract of land taken from a larger tract, said larger tract being designated as Lot 1, Coursey Village Subdivision; East Baton Rouge Parish, Louisiana, said Parcel 1-7, being more particularly shown on a map ... recorded at Original 547, Bundle 12057, in the office of the Clerk of Court.” The City/Parish described improvements on or in the property it sought to acquire as concrete paving, concrete curbing, two concrete parking bumpers, as well as gas, water, and sewer laterals.

      . Additionally, the City/Parish averred that it had provided or attempted to provide the owner of the property the name and qualifications of the persons who prepared the estimate of just compensation, the methods of determining the estimates, as well as the amounts of those estimates prior to filing the petition.

      . Although the legislation expressly provides a "quick taking” mechanism for expropriation by the Department of Transportation and Development, see La. R.S. 48:441, a political subdivision is also entitled to utilize the "quick taking” procedure pursuant to the Local Services Law, R.S. 33:1321-1337. City of Baton Rouge v. Johnca Properties, L.L.C., 2000-2524 (La.6/1/01), 794 So.2d 766, 772-73.

      . Our conclusion is underscored by the July 22, 1976 Minutes of the House Committee-Civil Law and Procedure Meeting at which David Ellison explained that the proposed law required among other things a "second notice to landowner who failed to answer original suit.”

      . Attached to a responsive memorandum in-tervenors filed in conjunction with the City/Parish's peremptory exceptions is a copy of a document entitled, "TRANSFER AND ASSIGNMENT." According to this document, dated June 19, 2008, prior to the filing of the expropriation proceeding, F & K conveyed and assigned to intervenors the usu-fruct, use, and utility of the tract of land from which the City/Parish expropriated a smaller tract and additionally conveys and assigns to intervenors all litigious and other personal rights and interests in and to any expropriation or other eminent domain proceeding involving that same larger tract. But neither the minutes nor the transcript of the proceeding show that the document was admitted into evidence and considered by the trial court. And the document was not annexed to the intervenors' pleading. Thus, the document is not properly considered on review. See Niemann v. Crosby Dev. Co., LLC, 2011-1337 (La.App. 1st Cir.5/3/12), 92 So.3d 1039, 1045 (evidence not properly and officially offered and introduced cannot be considered, even if it is physically placed in the record; in particular, documents attached to memoran-da do not constitute evidence).


author: PETTIGREW, J.

text:
    Benjamin SCOTT, Estate of Agnes Scott Bell, Estate of Ruby Scott Donald, Benjamin Scott Revocable Living Trust, Olivia Scott McMillan, Michel McMillan, Julia M. Carnes, and Leonard Scott, Jr. v. Leroy CHUSTZ, Patricia Connell Chustz, and Pointe Coupee Parish Police Jury.
    No. 2013 CA 0610.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 1, 2013.

      Jerry F. Pepper, Baton Rouge, LA, Attorney for Plaintiffs-Appellants Benjamin Scott et al.
    James C. Dewey, New Roads, LA, Attorney for Defendants-Appellees Chustz and Miletello Defendants.
    Lonny E. Guidroz, and John Wayne Ewell, New Roads, LA, Attorneys for Defendant-Appellee Pointe Coupee Parish Police Jury.
    Before PETTIGREW, McDONALD, and McClendon, jj.
   PETTIGREW, J.

|2Plaintiffs-appellants (hereinafter collectively referred to as the Scotts) appeal from the trial court’s judgment in favor of defendants-appellees dismissing their petition for a predial servitude of right of passage and writ of mandamus. For the reasons that follow, we affirm the judgment of the trial court.

The Scotts are owners of tracts of adjoining immovable, agricultural property-situated in Sections 58 and 59 of Township 6 South, Range 9 East, of Pointe Coupee Parish, located between Bayou Shallow on their East boundaries and Bayou Marin-gouin on their West boundaries. In their original and subsequent amending petitions, the Scotts made various claims in an attempt to obtain a predial servitude across property owned by the Chustz, Mi-letello, and Gravois defendants. The Scotts’ initial argument was that they were the owners of an enclosed estate and, thus, entitled to a servitude to the nearest public road, which was claimed by the Scotts to be Gravois Lane. The Scotts further claimed that they were entitled to a servitude because a “road” that they claimed existed along the bank of Bayou Marin-gouin had become a public road based upon a tacit dedication as a public servitude due to public maintenance under La. R.S. 48:491. Finally, the Scotts asserted that because Bayou Maringouin was a navigable waterway, La. |;iCiv.Code art. 665 conferred upon them a riparian servitude of passage across the Chustz and Miletello properties.

The matter proceeded to a bench trial on April 12, 2012, following which the trial court took the matter under advisement On June 1, 2012, the trial court issued written reasons for judgment in favor of the defendants, concluding that the Scotts had failed to establish by a preponderance of the evidence that Bayou Maringouin was navigable in fact. The trial court further found that the Scotts’ evidence concerning whether the alleged road along Bayou Maringouin was private or public was not sufficient to establish the road as public through tacit dedication pursuant to La. R.S. 48:491. The trial court signed a judgment on June 13, 2012, in accordance with its findings. It is from this judgment that the Scotts have appealed, assigning the following specifications of error for our review:

1. The Trial Court erred when it found that [plaintiffs] failed to prove by a preponderance of evidence that Bayou Mar-ingouin was navigable in fact.
2. The Trial Court erred when it applied an incorrect evidentiary standard to plaintiffs’ burden of proof with respect to establishing the navigability in fact of Bayou Maringouin.
3. The Trial Court erred when it concluded that proof of navigability based on old U.S. surveys is only relevant to a claim of ownership of the stream, not its navigability.
4. The Trial Court erred when it concluded that the present depth of Bayou Maringouin (6") at and around the property in question was relevant to the determination of its navigability.

During the trial on April 12, 2012, the trial court heard testimony concerning the navigability of Bayou Marin-gouin and whether there was ever a public road along the bank of Bayou Maringouin. After considering all of the evidence before it, the trial court found, as argued by the defendants in their post-trial memoranda, that the Scotts had failed to prove that Bayou Maringouin was navigable in fact, and thus a finding of navigability in law was precluded. The trial court further concluded that the alleged road 14along the bank of Bayou Maringouin, if one ever existed, “was more akin to a headland used for agricultural purposes and not a road for use by the public.” In dismissing the Scotts’ petition and writ of mandamus, the trial court offered the following written reasons for judgment:

The Court hereby finds, for reasons stated more specifically in [defendants’] post trial memorandum which the Court adopts herein by reference that the Plaintiffs have failed to establish by a preponderance of the evidence that Bayou Maringouin is navigable in fact. As pointed out in [Plaintiffs’] post trial memorandum, in Louisiana, a body of water is navigable in law if it is navigable in fact. Navigability is not presumed. Rather it is a burden to be carried by the party asserting navigability, here the Plaintiffs. The factual question turns on whether the evidence shows a body of water to be suitable by its depth, width, and location for commerce. At trial of this matter, testimony was heard and evidence was submitted regarding the alleged navigability of Bayou Maringouin near the property in question. Although Counsel for Plaintiffs submitted evidence from Mr. William Decker, regarding the State of Louisiana’s historical claim to the water bottom of Bayou Maringouin in the affected area of concern in this litigation, as pointed out by Defense counsel, proof of navigability based on old U.S. surveys is only relevant to a claim of ownership of the stream, not navigability, in short, a claim of ownership does not establish a finding of navigability. Furthermore, [Plaintiffs’] expert witness, Mr. George Castille’s testimony as to his own measurements of the depth of the [bayou] at various points and his self satisfaction that the bayou still carried water and retained its character as a navigable body of water was rebutted by demonstrative as well as testimonial evidence submitted by the Defense in the form of pictures and testimony which established that at and around the property in question, [Bayou Maringouin’s] depth was merely six inches at most. Because of [Plaintiffs’] onerous burden regarding proof of navigability and the credible demonstrative and testimonial evidence submitted in opposition to the [bayou’s] ability to sustain commerce in its ordinary state, specifically where it adjoins the plaintiffs and the property owner defendants, the Court hereby finds Bayou Maringouin is not navigable in fact and thus a finding of navigability in law is precluded.
The Plaintiffs also contend that they are entitled to the use of a road running across [Defendants’] property, which road they suggest should be characterized as public by virtue of maintenance performed thereon by the Pointe Cou-pee Parish Police Jury in years past. [Plaintiffs’] reliance is based on La. R.S. 48:491 which allows for the dedication of a road as a public road when it is proven that a municipality or governing authority has maintained or otherwise kept up the road for a period of three years. Whether a road is private or public is a factual determination for the Court to make. As was the case regarding navigability, the Plaintiff | ¿carries the burden of proof by a preponderance of the evidence on this issue.
Only the [Plaintiffs] and Mr. Carter Smith claimed that a road ever existed. Although there was testimony elicited that at some point in the past a truck or vehicle may have run over this road occasionally, [Plaintiffs’] expert surveyor only found some remnants of gravel approximately 100 feet from Gravois Lane, and no evidence of a road near the [Plaintiffs’/Defendants’] property. Testimony given by Mrs. Crousillac, one of the defendants, as well as her husband and all other defendants said that there was no road along the bayou and that no one had crossed their land from the Scott property during the time of owning their respective properties. Based on the evidence and testimony, it is the [Court’s] opinion that the alleged road, if ever one existed, was more akin to a headland used for agricultural purposes and not a road for use by the public. Furthermore, the evidence at trial was scant at best as to any public body performing the necessary, maintenance on the strip of ground sufficient to transform the strip of ground into a public road under the relevant statute. [Plaintiffs’] only evidence of maintenance of any type that took place near the property was the testimony of a former employee of the parish police jury who testified that he cut branches in the area near the strip of property sometime in the early [1980s]. Another employee testified he placed gravel near the area one time. However, all of the defendants claimed no knowledge of public maintenance and the Police Jury representatives denied any public maintenance of any sort. Even in the light most favorable to the plaintiffs, the only evidence presented was that the Police Jury may have occasionally “brushed up” the area in question, which this Court believes is far from sufficient to establish a consistent pattern of maintenance envisioned by the statute and necessary to establish the road as public through tacit dedication.
Finally, because this Court finds the maintenance performed on the land in question insufficient to establish dedication as a public road, the issue as to prescription of non-use of the road is moot.
The [Plaintiffs’] suit is dismissed along with the writ of mandamus at [Plaintiffs’] Cost.

It is well-settled that a reviewing court may not disturb the factual findings of the trier of fact in the absence of manifest error. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989); Arceneaux v. Domingue, 365 So.2d 1330, 1333 (La.1978). In Arcen-eaux, the Louisiana Supreme Court set forth a two-part test for the appellate review of facts: (1) the appellate coui’t must find from the record that there is a reasonable factual basis for the finding of the trial court, and (2) the appellate court must further determine that the record establishes the finding is not clearly wrong or manifestly erroneous. Arceneaux, 365 So.2d at 1333. Under the manifest error-clearly wrong standard, the reviewing court does not decide whether the trier of fact was right or wrong but | (¡whether the fact finder’s conclusion was a reasonable one. Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880, 882 (La.1993).

In reviewing this matter, we find the trial court very closely and carefully considered all of the evidence presented. Likewise, we have thoroughly reviewed the documentary evidence and applicable law and find that the record does hot demonstrate that the decision of the trial court was manifestly erroneous. We conclude that the evidence in the record reasonably supports a finding that the Scotts failed in their burden of proving the navigability of Bayou Maringouin and that the alleged road along the bank of Bayou Maringouin, if one ever existed, was not a road for use by the public. Not only is the evidence overwhelmingly in support of the trial court’s conclusion, but also the trial court’s reasonable evaluations of credibility and reasonable inferences of fact must be afforded great deference. The trial court did not err in dismissing the Scotts’ petition for predial servitude of right of passage and writ of mandamus. The Scotts’ arguments on appeal to the contrary are without merit. The June 13, 2012 judgment of the trial court is affirmed. All costs associated with this appeal are assessed against plaintiffs-appellants.

AFFIRMED.

      . In an original and first amending petition, the plaintiffs were identified as follows: Leonard C. Scott, Jr., Sheryl M. Scott, and Clara Berrard Scott (deceased); Julia M. Scott Carnes; Benjamin Scott as Trustee of the Ruby Donald Trust, the Testamentary Executor of the Succession of Agnes Scott Bell, and the Trustee of The Scott Family Revocable Living Trust, a California Trust, successor in interest to The Benjamin Scott Revocable Trust; Michael G. McMillan; and Olivia Scott McMillan. Moreover, Diversified Property Holdings, L.L.C. intervened into the proceedings, aligning itself with the rights and interests of the Succession of Agnes Scott Bell.

      . The following defendants were named: Leroy J. Chustz, Jr., Patricia Connell Chustz, Myrtle Brown Chustz; Anthony “Tony” Mile-tello, Sr., Lucille Miletello Crousillac, Johnny Paul Miletello, Anthony Miletello, Jr.; Claude T. Gravois, Jr.; and the Pointe Coupee Parish Police Jury.

      . Louisiana Revised Statutes 48:491 provides, in pertinent part, as follows:
      B. (l)(a) All roads and streets in this state which have been or hereafter are kept up, maintained, or worked for a period of three years by the authority of a parish governing authority within its parish, or by the authority of a municipal governing authority within its municipality, shall be public roads or streets, as the case may be, if there is actual or constructive knowledge of such work by adjoining landowners exercising reasonable concern over their property.

      .Article 665 provides, in pertinent part, as follows: "Servitudes imposed for the public or common utility relate to the space which is to be left for the public use by the adjacent proprietors on the shores of navigable rivers and for the making and repairing of levees, roads, and other public or common works.”

      5. “In Louisiana, waterways are navigable in law when they are used or susceptible of being used in their natural and ordinary condition as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on the water.. Simply stated, a water course is navigable when by its depth, width, and location it is rendered available for commerce.” Dunaway v. Louisiana Wildlife and Fisheries Com’n, 2008-1494, p. 5 (La.App. 1 Cir. 2/13/09), 6 So.3d 228, 232 (citations omitted).


text:
    Lance P. LEMOINE, Jr. v. BATON ROUGE PHYSICAL THERAPY, L.L.P. and BRPT-Lake Rehabilitation Centers, LLC.
    No. 2013 CA 0404.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 27, 2013.

      J.E. Cullens, Jr., Edward J. Walters, Jr., Darrel J. Papillion, David Abboud Thomas, Baton Rouge, Louisiana, for Plaintiff-Appellant/Lance P. Lemoine, Jr.
    John C. Miller, Connell L. Archey, Baton Rouge, Louisiana, for Defendant-Ap-pellee/Baton Rouge Physical Therapy, LLP.
    Melanie M. Hartmann, Scott D. Huffs-tetler, Baton Rouge, Louisiana, for Defendant-Appellee/BRPT-Lake Rehabilitation Centers, LLC.
    Before KUHN, HIGGINBOTHAM, and THERIOT, JJ.
   KUHN, J.

| gPlaintiff-appellant, Lance P. Lemoine, appeals the trial court’s declaratory judgment, granting a motion for summary judgment filed by defendants-appellees, Baton Rouge Physical Therapy, LLP (BRPT) and BRPT-Lake Rehabilitation Centers, LLC (BRPT-Lake), declaring valid provisions in a partnership agreement, which expressly preclude Lemoine from engaging in his profession providing rehabilitative services and from competing through employment with a competitor for a period of two years in specified parishes; sustaining a peremptory exception objecting on the basis of Lemoine’s failure to state a cause of action on his claim for damages as a result of alleged unfair trade practices by BRPT; and finding moot a dilatory exception raising the objection of prematurity. For the reasons that follow, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Lemoine is a physical therapist who worked for BRPT for more than 25 years. In 1993, Lemoine became a partner and entered into a partnership agreement with BRPT. As a partner of BRPT, Lemoine was an employee of BRPT-Lake. In January 2012, Lemoine and BRPT ended their relationship.

On June 8, 2012, Lemoine filed this lawsuit for declaratory relief, naming BRPT and BRPT-Lake as defendants. Attached to the petition is a copy of the partnership agreement entered into by the parties on January 1, 2005, as well as an operating agreement between BRPT and BRPT-Lake.

According to Lemoine’s allegations, non-competition provisions contained in the partnership agreement were unenforceable and, hence, he sought a | .¡declaration that he may provide outpatient or alternatively home health physical therapy and/or inpatient services at any location he determines. He also claims entitlement to damages, alleging that by its attempts to enforce an invalid and overbroad agreement precluding him from exercising his lawful profession, BRPT had violated the Louisiana Unfair Trade Practices and Consumer Protection Law (LUTPA).

BRPT filed both a peremptory exception raising the objection of no cause of action and, in the alternative, a dilatory exception objecting on the basis of prematurity directed at the LUTPA claim. BRPT-Lake answered the lawsuit. The parties subsequently filed cross motions for summary judgment, averring that as a matter of law each was entitled to relief.

A hearing was held on the exceptions and the cross motions for summary judgment. The trial court denied Lemoine’s motion and granted the joint cross motion of BRPT and BRPT-Lake. A judgment issued which specifically found that the non-competition provisions were valid, and that Lemoine was, therefore, precluded from providing rehabilitative services, as defined in the partnership agreement, or engaging in a similar business in the parishes of East Baton Rouge, Ascension, and Livingston for period of two years from the date of termination of his interest in BRPT. In the judgment, the trial court sustained BRPT’s exception of no cause of action and denied as moot the exception of prematurity as to Lemoine’s LUTPA claim. Lemoine appeals.

DISCUSSION

|4La. C.C.P. art. 1871 authorizes the judicial declaration of “rights, status, and other legal relations whether or not further relief is or could be claimed.” A declaratory judgment is one which simply establishes the rights of the parties or expresses the opinion of the court on a question of law, without ordering anything to be done, and its distinctive characteristic is that the declaration stands by itself with no executory process following as a matter of course, so that it is distinguished from a direct action in that it does not seek execution or performance from the defendant or the opposing litigants. Appellate courts review a trial court’s decision to grant or deny a declaratory judgment using the abuse of discretion standard. Olde Nawlins Cookery, L.L.C. v. Edwards, 2009-1189 (La.App. 1st Cir.5/3/10), 38 So.3d 1012, 1015.

Louisiana has historically had a strong public policy against any employment contract that prohibits an employee from competing with a former employer. See Louisiana Smoked Products, Inc. v. Savoie’s Sausage and Food Products, Inc., 96-1716 (La.7/1/97), 696 So.2d 1373, 1379. This policy of restricting non-competition agreements was based on an underlying desire to prevent an individual from contractually depriving himself of the ability to support himself and consequently becoming a public burden. See McAlpine v. McAlpine, 94-1594 (La.9/5/96), 679 So.2d 85, 91. Thus, because such agreements were considered to have been in derogation of the common right, they were strictly construed against the party seeking their enforcement. See SWAT 24 Shreveport Bossier, Inc. v. Bond, 2000-1695 (La.6/29/01), 808 So.2d 294, 298.

In SWAT 2Jh the Louisiana Supreme Court examined the provisions of La. R.S. 23:921, which at the time provided in relevant part:

A. (1) Every contract or agreement, or provision thereof, by which anyone is restrained from exercising a lawful profession, trade, or business of any kind, except as provided in this Section, shall be null and void....
|SC. Any person, including a corporation and the individual shareholders of such corporation, who is employed as an agent, servant, or employee may agree with his employer to refrain from carrying on or engaging in a business similar to that of the employer and/or from soliciting customers of the employer within a specified parish or parishes, municipality or municipalities, or parts thereof, so long as the employer carries on a like business therein, not to exceed a period of two years from termination of employment.

The SWAT 21 court held that the legislature intended a non-competition agreement restraining an employee from carrying on or engaging in his own business might be valid, provided certain conditions were met; but that conversely, an agreement that restrained an employee from carrying on or engaging in a competing business as the employee of another would not fall within the exception set forth in that subsection and, instead, would be null and void pursuant to Subsection A. 808 So.2d at 306-07.

Without modifying the provisions of Subsection C, by 2003 La. Acts, No. 428, § 1, the legislature added Subsection D to La. R.S. 23:921. That subsection states in pertinent part:

For the purposes of Subsections B and C, a person who becomes employed by a competing business, regardless of whether or not that person is an owner or equity interest holder of that competing business, may be deemed to be carrying on or engaging in a business similar to that of the party having a contractual right to prevent that person from competing.

Thus, the SWAT 24 court’s holding was legislatively overruled. See Green Clinic, L.L.C. v. Finley, 45,141 (La.App.2d Cir.1/27/10), 30 So.3d 1094, 1098.

By 2010 La. Acts, No. 164, § 1, La. R.S. 23:921A(1) was amended to add a second sentence. The State’s present policy is set forth in La. R.S. 23:921, which states:

A. (1) Every contract or agreement, or provision thereof, by which anyone is restrained from exercising a lawful profession, trade, or business of any kind, except as provided in this Section, shall be null and void. However, every contract or agreement, or provision | ^thereof, which meets the exceptions as provided in this Section, shall be enforceable.

Over the years, a number of exceptions to La. R.S. 23:921A(1) have been enacted in other subsections of the statute. Today exceptions exist for employer/employee relationships, corporation/shareholder relationships, partnership/partner relationships, and franchise/franchisee relationships. The statute defines the situations under which a non-competition clause may be valid in the context of each of these relationships. Kimball v. Anesthesia Specialists of Baton Rouge, Inc., 2000-1954 (La.App. 1st Cir.9/28/01), 809 So.2d 405, 410, writs denied, 2001-3816 and 3355 (La.3/8/02), 811 So.2d 883 and 886. Considering the legislative history of the statute, it is apparent the legislature has relaxed the overly restrictive interpretation the courts have given to noncompetition agreements. See SWAT £4, 808 So.2d at 312-15 (Traylor, J., dissenting).

Section 9E of the partnership agreement sets forth the non-competition provisions, stating in part:

Each of the parties hereto, as Partners, as well as any others who become members of this Partnership ..., agree that in the event that any Partner’s interest in the Partnership is terminated for any reason, with or without cause, the terminating Partner shall not, for a period of two ... years after such termination, directly or indirectly, in the Parishes of East Baton Rouge, Ascension, and Livingston, Louisiana (1) engage in the business of Rehabilitative Services (the “business”) as a partner, owner, member, consultant, contractor or employee of any entity that engages in such business, or (2) solicit or undertake to do such business, with any patient, customer or facility, with which the Partnership or BRPT-Lake is doing such business at the time of his termination or with which the Partnership or BRPT-Lake has done such business during the two ... years preceding his termination.

Thus, as a terminating partner, Lemoine contractually agreed that for a period of two years after his termination, he would not directly or indirectly engage in the business of rehabilitative services as either an employee of or through an equity 17interest in any entity that engages in rehabilitative services within the specified parishes.

By his participation in the partnership agreement, in Section 3, Lemoine as a partner expressly agreed that the business of BRPT was “the ownership of a 67% membership interest in [BRPT-Lake],” and additionally that BRPT may, among other things:

engage in physical therapy, occupational therapy, biofeedback therapy, athletic training and other rehabilitation services including the treatment of persons by the use of thermotherapy, actinotherapy, hydrotherapy, electrotherapy, massage, therapeutic exercises, electromyography, and other physical therapy, occupational therapy, biofeedback therapy, athletic training and other rehabilitative procedures, for the purpose of providing therapy, health, well-being, fitness, and excellence, including any and all activities and undertakings which can be carried on to accomplish these objectives (collectively, “Rehabilitation Services”).

In Section 4, Lemoine also agreed as a partner that he:

shall devote his entire time and attention to Rehabilitation Services as an employee of BRPT-Lake, except that he shall be free to engage in other activities provided that, unless approved by the Partners, such activities are not in the field of Rehabilitation Services or in competition with or conflict with the business of BRPT-Lake. (Emphasis added.)

Therefore, by the contractual provisions to which Lemoine agreed to bind himself, a partner of BRPT is contractually defined as “an employee of BRPT-Lake.”

Lemoine requested a declaration that as a terminating partner he be permitted to provide outpatient or alternatively home health physical therapy and/or inpatient services at any location he determines, which services fall within the ambit of the partnership agreement’s definition of “Rehabilitative Services.” Because he has admitted that as a BRPT partner he worked as an employee of BRPT-Lake as a physical therapist, there is no outstanding issue of material fact insofar as whether the declaration Lemoine seeks is within the scope of the nonjcompetition8 agreement.

Preliminarily we note that on appeal, the parties have expended much argument over the effect of an application of the provisions of Subsection K of La. R.S. 23:921, which creates an express exception to the general rule of Subsection A insofar as the enforceability of noncompetition agreements in the context of partnerships. But it is the provisions of La. R.S. 23:921 in effect at the time the agreement was executed that are applicable in determining whether a noncompetition agreement is enforceable. Walker v. Louisiana Health Mgmt. Co., 94-1396 (La.App. 1st Cir.12/15/95), 666 So.2d 415, 426, writ denied, 96-0571 (La.4/19/96), 671 So.2d 922. And the version of the partnership agreement the parties have attached to their pleadings was that which was entered into on January 1, 2005, prior to the enactment of Subsection K by 2008 La. Acts, No. 399, § 1, effective August 15, 2008. Thus, because we are bound by the jurisprudence that we apply the version of La. R.S. 23:921 in effect on the date the non-competition provisions were executed, we turn our attention to an application of the provisions of Subsection C, which was enacted by 1990 La. Acts, No. 201, § 1, effective as of September 7, 1990, and the post-SWAT 2Jf enactment of the provisions of Subsection D by 2003 La. Acts, No. 428, § 1, effective on August 15, 2003.

Lemoine asserts the noncompetition provisions do not fall within the ambit of the exception set forth in La. R.S. 23:921C because he agreed with BRPT, the partnership, rather than BRPT-Lake, whom he describes as his actual “employer.” 1 flThus, Lemoine reasons, his consent to not engage directly or indirectly in the business of rehabilitative services was not “with his former employer.” We disagree.

As we have already pointed out, Lem-oine agreed with the partnership as a partner of BRPT to contractually define himself as “an employee of BRPT-Lake.” Thus, his agreement to devote his entire time and attention to rehabilitative services as an employee of BRPT-Lake is a partnership obligation. See La. C.C. art. 2808 (each partner owes the partnership all that he has agreed to contribute to it). In addition to engaging in rehabilitative services, BRPT was the majority interest owner of BRPT-Lake. Although the non-competition provisions were contained in the partnership agreement, in light of Lemoine’s partnership obligation as an employee of BRPT-Lake, through his consent with BRPT — the undisputed majority interest owner of BRPT-Lake — Lemoine agreed with his employer to refrain from carrying on or engaging in rehabilitative services under La. R.S. 23:921C. And under the plain language of Subsection D, regardless of whether Lemoine is an owner or equity interest holder of a competing business, his employment in rehabilitative services is deemed to be carrying on or engaging in a similar business. Accordingly, the trial court correctly found that the noncompetition provisions are valid and did not abuse its discretion in denying Lemoine the requested declaratory relief.

In brief and at oral argument, Lemoine acknowledged that he has no LUTPA claim unless the non-competition agreement is unenforceable. Because we have found the non-competition provisions are enforceable, we find no error in the trial court’s actions, sustaining the peremptory exception raising the objection of no cause of action and dismissing as moot the dilatory exception objecting on the |inbasis of prematurity as to Lemoine’s LUTPA claim.

DECREE

For these reasons, the trial court’s judgment, denying Lemoine’s motion for summary judgment seeking declaratory relief and granting that of BRPT and BRPT-Lake, expressly finding that the non-competition provisions of the BRPT partnership agreement entered into with Lemoine are valid; and dismissing Lemoine’s LUT-PA claim is affirmed. Appeal costs are assessed against plaintiff-appellant, Lance P. Lemoine, Jr.

AFFIRMED.

      . The agreement is entitled, "FOURTH AMENDED AND RESTATED PARTNERSHIP AGREEMENT OF [BRPT].”

      . It is undisputed that the operating agreement recognized BRPT was in the business of providing physical and occupational therapy and other rehabilitative services; and restricted BRPT from competition by prohibiting it from providing rehabilitation services in a delineated area other than through BRPT-Lake.

      . Although Lemoine's allegations specifically averred, "Just prior to filing this pleading ... BRPT withdrew its objection to Lemoine providing at-home physical therapy” in specified parishes, his prayer requests an express declaration of his entitlement to provide, among other things, "home health physical therapy.”

      . See La. R.S. 51:1401-1427.

      . Subsection D was originally enacted as Subsection H but was redesignated as Subsection D, and Subsections D through G were redes-ignated as Subsections E through H, respectively, pursuant to the statutory revision authority of the Louisiana State Law Institute.

      . Before the trial court and again in brief, Lemoine conceded that there were no outstanding issues of material fact but maintained that the business of BRPT was ownership of BRPT-Lake and not to provide rehabilitative services. Thus, it appears he is asserting that as a matter of contract, the only business in which BRPT engaged was ownership of BRPT-Lake. But in light of Lemoine’s allegations of having been a BRPT partner and employed by BRPT-Lake, his affidavit attesting to having provided physical therapy at BRPT-Lake at the same time he was a BRPT partner, the language of the partnership agreement permitting BRPT to engage in rehabilitative services, and the affidavits of Lemoine’s former partners attesting that partners were required to devote their entire attention to rehabilitation services as employees of BRPT-Lake and that BRPT partners were the highest compensated employees of BRPT-Lake, the record establishes as a matter of undisputed fact that BRPT’s partners engaged in the performance of rehabilitative services.

      . The trial court’s judgment also purports to dismiss Lemoine’s claims, “if any,” asserted against BRPT-Lake. Although the parties raise no contentions with this portion of the trial court’s judgment we point out that the only allegations Lemoine directed at BRPT-Lake were as part of his claim for declaratory relief. Since courts may declare rights, status, and other legal relations and the declaration shall have the force and effect of a final judgment or decree, see La. C.C.P. arts. 1871, and further relief based on a declaratory judgment may be granted when necessary or proper only upon an application by petition which requires the court to direct any adverse party whose rights have been adjudicated to show cause why further relief should not be granted, see La. C.C.P. art. 1878, under the procedural posture of this case, neither the trial court nor this court has jurisdiction to dismiss any party concerning Lemoine's request for declaratory relief.


author: CARAWAY, J.

text:
    STATE of Louisiana in the Interest of B.J. and P.W.
    No. 48,857-JAC.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 15, 2014.

      Elizabeth C. Brown, West Monroe, for Appellant, B.W.
    Keesha Bordelon, Rayville, State of Louisiana, Dept, of Children and Family Services, for Appellee, State of Louisiana.
    Johnny Lee Sanders, Assistant District Attorney, James Edward Patton, II, Monroe, for the Children.
    Kenneth Trahan, for J. J.
    Before CARAWAY, LOLLEY and GARRETT, JJ.
   CARAWAY, J.

| following her failure to meet reunification plans by the state and her multiple incarcerations related to substance abuse, appellant’s parental rights were terminated by the trial court. The mother appeals the ruling. We affirm the trial court.

Facts

The mother, B.W., and the father, J.J., are the biological parents of a six-year-old female, B.J. (born on November 9, 2007), and a five-year-old male, P.W. (born October 20, 2008). On October 14, 2010, B.W. voluntarily placed P.W. in the care of the Louisiana Baptist Children’s Home (“LBCH”) foster care program due to her incarceration at the Ouachita Parish Correctional Center (“OPCC”). P.W. was placed with an off-campus foster family.

B.W. was released from OPCC in November 2010 but was booked into the Morehouse Parish Detention Center on December 16, 2010, and released on May 21, 2011. Upon her release, B.W. was sent to Rayville Recovery for substance abuse rehabilitation but left after two weeks and did not complete the program. B.W. was arrested again on July 7, 2011, and released from jail on July 25, 2011.

During these events, B.J. had been staying with her father, J.J. However, on July 8, 2011, he voluntarily placed the child in foster care at LBCH, claiming that he did not have anyone to take care of her while he worked. B.J. was placed in the same foster home as her brother. J.J. also had criminal and drug abuse histories. J.J. has not appealed the ruling of the trial court terminating his parental rights.

|?On September 27, 2011, the Morehouse Parish office of the Louisiana Department of Children and Family Services (“DCFS”) received a report of alleged abandonment of B.J. and P.W. On October 10, 2011, B.W. was given a drug test; she admitted that she would test positive for crack cocaine. On October 11, 2011, an Instanter Order was issued placing B.J. and P.W. into the temporary custody of DCFS. A continued custody hearing occurred the following day at which only B.W. was present. The parents ultimately stipulated to the continued custody of the children with DCFS, and the children remained in foster care. B.W. attended the initial Family Team Administrative Conference on November 7, 2011. DCFS adopted a permanent plan for reunification of the children with the parents, who were allowed two monthly visits with the children.

The children were adjudicated as children in need of care on January 11, 2012. Neither parent appeared for the hearing although both were served with notice. The plan for reunification continued.

By October 9, 2012, DCFS issued a report that changed the plan from reunification to adoption for both children. The grounds for the change in the plan included B.W.’s failure to attend parenting education or anger management classes, or submit to substance abuse and psychological evaluations. Other stated grounds included B.W.’s limited visitation with the children on only four occasions since October 11, 2011, limited contact with the caseworker, lack of a home address, unemployment and lies about Rher place of residence. The report also stated that B.W. admitted to smoking crack cocaine and marijuana on June 18, 2012, was arrested on July 3, 2012, and incarcerated at the time of the report.

A permanency plan hearing was held on October 17, 2012. B.W. appeared requesting a continuance because she was incarcerated and was due to be in court on October 29, 2012, for a probation revocation hearing. The court denied the request for a continuance. B.W. stipulated to the content of the above-referenced report but did not agree to the goal change. Ultimately, the court determined that a permanent plan of adoption was the most appropriate and least restrictive for the children.

On January 9, 2013, DCFS filed a petition seeking the involuntary termination of B.W.’s and J.J.’s parental rights. By this time, the children had been in the custody of DCFS for almost 15 months.

Trial to terminate parental rights was held on July 10, 2013, and despite her repeated incarceration, B.W. did attend. DCFS’s foster care manager, April Fitch, testified that the children had been in state custody since October 10, 2011. The various case plans were updated every 6 months and listed things that the parents were required to do. B.W. was given DCFS contact information and understood the terms of the plans. Nevertheless, Fitch stated that the mother did not cooperate with efforts at reunification because she failed to maintain a safe home environment and home for six months, failed to provide income or to attend anger management classes, and to participate in consistent drug screening tests and to undergo both substance abuse and psychological evaluations. Fitch testified that B.W. was in prison after having her probation revoked in April |42013. During the 22 months that the children were in the care of DCFS, B.W. visited with them five times even though she was allowed visitation every two weeks.

Fitch indicated that B.W. would submit to drug screening each time she had seen her. Yet, B.W. was difficult to locate, especially in the previous 12 months. B.W. indicated on June 18, 2012, that she would test positive for drugs. Fitch also recalled that B.W. tested positive on one or two other drug screens.

Fitch testified that she did not believe B.W. was going to have a significant improvement in her conduct based upon her failure to cooperate and to keep her whereabouts known to DCFS. B.W. last visited with the children on December 10, 2012.

During their time with DCFS, B.W. sent birthday cards and $10 to the children in the fall of the previous year. On Easter of the previous year, she bought them gifts. Since the last court hearing, B.W. had sent them each a $25 gift card and sent them a card and a letter. These items were not considered a significant contribution of support on behalf of the children according to Fitch. Fitch stated that B.W. demonstrated her refusal to work a case plan.

In Fitch’s opinion, the best interests of the children required that they be free for adoption. She observed them in the foster home in which P.W. had lived for approximately 32 months, and B.J. for 23 months. Fitch testified that they are very closely bonded to the family and were thriving in that environment.

| sFitch testified that she did not have contact with B.W. from December 2012, until she was incarcerated in 2013. She knew that from July 3, 2012, until December 6, 2012, B.W. was incarcerated in a parish jail. She was also incarcerated from February 2013 until the hearing. When shown a verification of B.W.’s incarceration, Fitch agreed that B.W. was in jail for 20 of the last 24 months. B.W. never advised Fitch of her incarcerations. When Fitch learned of an incarceration, she visited B.W. in jail, once every three months. She stated that despite incarceration, a parent can obtain services, but she did not know if B.W.’s jail provided services. Fitch stated that it was B.W.’s responsibility to obtain the services while she was incarcerated, because she had a copy of the case plan.

Fitch admitted that B.W. informed her she wanted to attend a drug abuse treatment program. She did not make the referral, however, because B.W. was in jail. Fitch advised B.W. to speak to her attorney or probation officer to make the referral. Fitch testified that she referred B.W. to a drug rehabilitation program in 2011, but that she voluntarily left the program after 7 days. Fitch admitted that it was impossible for B.W. to comply with the visitation plan while she was in jail. Fitch was unaware that B.W. was presently participating in a drug rehabilitation program in prison. Fitch also stated that B.W.’s release date was March 2014 and that the children needed permanent placement.

After the children’s foster mother testified, the state rested, arid in defense, B.W. admitted only her Verification of Incarceration letter into evidence. B.W. did not testify.

| (After considering this evidence and testimony, the court determined that the state had met its burden of proof and that it was in the best interest of the children that both parents’ parental rights be terminated. The trial court specifically found that there was no reasonable expectation that B.W. would make any significant improvement in conduct in the near future. A signed judgment followed on July 23, 2013.

B.W. appealed the judgment contending that the trial court erred in finding that she had no reasonable expectation of reformation, that DCFS had provided the required services to her while she was in jail and in concluding that the state met its burden of proof regarding abandonment and failure to support. Specifically, B.W. argues that her caseworker made no effort to get her into drug treatment when she requested the same that year and did not allow the children to visit their mother while she was in jail. Ultimately, B.W. contends that her lack of visitation and support were caused by the caseworker’s failure to provide visitation and services coupled with her limited freedom due to incarceration.

Discussion

While parents have a constitutionally protected liberty interest in establishing and maintaining a meaningful relationship with their children, the state has a legitimate interest in limiting or terminating parental rights under certain conditions. State in the Interest of A.C., 93-1125 (La.1/27/94), 643 So.2d 719, cert. denied, 515 U.S. 1128, 115 S.Ct. 2291, 132 L.Ed.2d 292 (1995); State ex rel. JT v. J.M., 46,090 (La.App.2d Cir.12/12/10), 56 So.3d 1009.

|7An appellate court reviews a trial court’s findings as to whether parental rights should be terminated according to the manifest error standard. State ex rel. D.L.R., 08-1541 (La.12/12/08), 998 So.2d 681; State ex rel. K.G., 02-2886 (La.3/18/03), 841 So.2d 759. In any case to involuntarily terminate parental rights, there are two private interests involved: (1) those of the parents and (2) those of the child. The parents have a natural, fundamental liberty interest to the continuing companionship, care, custody and management of their children warranting great deference and vigilant protection under the law, and due process requires that a fundamentally fair procedure be followed when the state seeks to terminate the parent-child legal relationship. However, the child has a profound interest, often at odds with those of his parents, in terminating parental rights that prevent adoption and that inhibit establishing secure, stable, long-term, and continuous relationships found in a home with proper parental care. In balancing these interests, the courts of this state have consistently found the interest of the child to be paramount over that of the parent. State ex rel D.L.R., supra.

The State’s parens patriae power allows intervention in the parent-child relationship only under serious circumstances, such as where the State seeks the permanent severance of that relationship in an involuntary termination proceeding. The fundamental purpose of involuntary termination proceedings is to provide the greatest possible protection to a child whose parents are unwilling or unable to provide adequate care for his physical, emotional, and mental health needs and adequate rearing, by providing an expeditious judicial process for terminating all parental rights Rand responsibilities and achieving permanency and stability for the child. The focus of an involuntary termination proceeding is not whether the parent should be deprived of custody, but whether it would be in the best interest of the child for all legal relations with the parents to be terminated. As such, the primary concern of the courts and the State remains to secure the best interest of the child, including termination of parental rights if justifiable grounds exist and are proven. Id.

La. Ch.C. art. 1015 provides the statutory grounds by which a court may involuntarily terminate the rights and privileges of parents. The State need establish only one ground under Article 1015, but the judge must also find that the termination is in the best interest of the child. La. Ch.C. art. 1039. Additionally, the State must prove the elements of one of the enumerated grounds by clear and convincing evidence to sever the parental bond. La. Ch.C. art. 1035(A); State ex rel. D.L.R., supra.

The State has an obligation to make reasonable efforts to preserve and to unify the family. If such measures fail, the State is mandated to make reasonable efforts to place a child for adoption or with a legal guardian. La. Ch.C. art. 682; State ex rel. A.T., 06-0501 (La.7/6/06), 936 So.2d 79. Reasonable efforts are defined as “the exercise of ordinary diligence and care by department caseworkers and supervisors and shall assume the availability of a reasonable program of services to children and their families.” La. Ch.C. art. 603.

Imprisonment is not an excuse to escape parental obligations. State ex rel. JT v. J.M., supra. Incarceration is not a defense to failure to support or maintain contact with one’s children in a termination-of-parental-rights case | particularly because incarceration results from one’s own actions. Id. Requiring DCFS to interfere with the Department of Corrections to schedule drug screening, psychological testing and visitation has been held to be an unreasonable expectation. State ex rel. B.H. v. AH., 42,864 (La.App.2d Cir. 10/24/07), 968 So.2d 881. Further, the failure of a parent to apprise DCFS of her whereabouts when in and out of jail is a relevant factor for determining the reasonableness of DCFS efforts to reunify the family as well as justification for a finding of abandonment by the parent. Id.

In this case, B.W.’s parental rights were terminated on the grounds set forth in La. Ch.C. art. 1015(4) and (5), which provide in relevant part:

The grounds for termination of parental rights are:

4) Abandonment of the child by placing him in the physical custody of a nonpar-ent, or the department, or by otherwise leaving him under circumstances demonstrating an intention to permanently avoid parental responsibility by any of the following:
(b) As of the time the petition is filed, the parent has failed to provide significant contributions to the child’s care and support for any period of six consecutive months.
(c) As of the time the petition is filed, the parent has failed to maintain significant contact with the child by visiting him or communicating with him for any period of six consecutive months.
5) Unless sooner permitted by the court, at least one year has elapsed since a child was removed from the parent’s custody pursuant to a court order; there has been no substantial parental compliance with a case plan for services which has been previously filed by the department and approved by the court as necessary for the safe return of the child; and despite earlier intervention, there is no reasonable expectation of significant improvement in the parent’s condition or conduct in the near future, considering the child’s age and his need for a safe, stable, and permanent home.

La. Ch.C. art. 1036 addresses parental misconduct and provides in relevant part:

lioC. Under Article 1015(5), lack of parental compliance with a case plan may be evidenced by one or more of the following:
(1) The parent’s failure to attend court-approved scheduled visitations with the child.
(2) The parent’s failure to communicate with the child.
(3) The parent’s failure to keep the department apprised of the parent’s whereabouts and significant changes affecting the parent’s ability to comply with the case plan for services.
(4) The parent’s failure to contribute to the costs of the child’s foster care, if ordered to do so by the court when approving the case plan.
(5) The parent’s repeated failure to comply with the required program of treatment and rehabilitation services provided in the case plan.
(6) The parent’s lack of substantial improvement in redressing the problems preventing reunification.
(7) The persistence of conditions that led to removal or similar potentially harmful conditions.
D. Under Article 1015(5), lack of any reasonable expectation of significant improvement in the parent’s conduct in the near future may be evidenced by one or more of the following:
(1) Amy physical or mental illness, mental deficiency, substance abuse, or chemical dependency that renders the parent unable or incapable of exercising parental responsibilities without exposing the child to a substantial risk of serious harm, based upon expert opinion or based upon an established pattern of behavior.
(2) A pattern of repeated incarceration of the parent that has rendered the parent unable to care for the immediate and continuing physical or emotional needs of the child for extended periods of time.
(3) Any other condition or conduct that reasonably indicates that the parent is unable or unwilling to provide an adequate permanent home for the child, based upon expert opinion or based upon an established pattern of behavior. [12] The trial court observed that B.W.

understood the children’s need for permanent and stable care in a home she could not provide. BW. recognized this in 2010 when she appropriately first placed P.W. with LBCH. The trial court believed that B.W. still understood the children’s needs and her inability to comply with the steps necessary for the children’s |H care and support. B.W. did not testify and offer any reason for expected change in her inability to meet her parental obligations.

Regarding B.W.’s assertion of the State’s failure to provide services, the lengthy periods of incarceration in different facilities impeded DCFS’s efforts. There was no showing of B.W.’s efforts to advise DCFS of her whereabouts or to diligently seek any drug rehabilitation services or psychological counseling in or out of prison.

B.W.’s continued imprisonments and failed drug screenings evidence her chemical dependency that rendered her incapable of exercising parental responsibilities. The trial court properly concluded that the clear and convincing evidence showed no reasonable expectation of significant improvement in B.W.’s condition in the near future. The best interests of the children for a safe, stable and permanent home are served by the trial court’s ruling terminating B.W.’s parental rights.

Conclusion

The judgment terminating the parental rights of BW. is affirmed.

AFFIRMED.

      . The testimony shows that it is the policy of LBCH for the parents to set up a permanency plan for return of the children within a year. Because no plan for the children was instituted by B.W. or J.J., DCFS was notified.

      . Family Team Conferences were held on April 18, 2012, October 18, 2012 and April 18, 2013. B.W. attended the last two in person and by telephone, respectively.