author: KUHN, J.

text:
    Luis GONZALES v. STATE of Louisiana.
    No. 2012 CA 1721.
    Court of Appeal of Louisiana, First Circuit.
    April 26, 2013.

      Luis Gonzales, Jonesboro, LA, Pro se.
    Patricia H. Wilton, Baton Rouge, LA, for Defendant-Appellee Louisiana Parole Board.
    Before KUHN, PETTIGREW, and McDonald, jj.
   KUHN, J.

12Petitioner-appellant, Luis Gonzales, appeals the district court’s judgment, affirming the decision of the Board of Parole (the Board) and dismissing his petition for appeal of a parole revocation. For the reasons that follow, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Petitioner was granted parole in 2007 on a thirty-year sentence for a violation of the controlled dangerous substance law. The Board ordered his supervision overseen in the Donaldsonville, Louisiana district of the Division of Probation and Parole. In March 2008, petitioner admits that he relocated to the Thibodeaux district but never reported the change of residence to the Board. After moving from his assigned residence without permission from his parole officer, a warrant for his having absconded was issued.

In January 2010, petitioner was arrested in St. Bernard Parish on two charges: possession of cocaine, a schedule II controlled dangerous substance; and illegal possession of stolen things (a vehicle). He requested that the revocation preliminary hearing and final revocation hearing be deferred until a final disposition of the pending charges. The charges were eventually dismissed in March 2011.

A preliminary revocation hearing was held on April 29, 2011, in St. Bernard Parish where petitioner was incarcerated. At the hearing, petitioner was charged with violating seven conditions of parole. A hearing was held before a preliminary hearing officer wherein he was found guilty of having violated five of the seven charges. At the final revocation hearing the Board voted unanimously to ^revoke petitioner’s parole, expressly declining to grant petitioner first-time-technical-violator status.

Petitioner sought judicial review in the Nineteenth Judicial District Court. Adopting the recommendation of the commissioner, the district court affirmed the Board’s decision and dismissed petitioner’s pleading. This appeal followed.

DISCUSSION

On appeal both before the district court and this court, the gist of petitioner’s contention is that his guilty pleas to violations of five of seven parole conditions do not support the Board’s decision to deny him relief to first-time-technical-violator status.

Initially, we note that petitioner was given notice of the charges and his right to counsel. He was given a preliminary hearing and a parole hearing. Nothing in the record supports a finding that any of petitioner’s constitutional or other substantial rights had been violated by the revocation process. Thus, he has shown no procedural due process violation. See La. R.S. 15:574.11 A (prior to amendment of La. R.S. 15:574.2 by La. Acts 2012, No. 714, § 1 ) (no prisoner or parolee shall have a right of appeal from a decision of the [Bjoard regarding the revocation or reconsideration of revocation of parole, except for the denial of a revocation hearing under R.S. 15:574.9).

Nevertheless, the district court has appellate jurisdiction over pleadings alleging a violation of R.S. 15:574.9. The review is conducted by the court without a jury and confined to the revocation record. And the review is limited to |4the issues presented in the petition for review. The court may affirm the revocation decision of the Board; or reverse and remand the case for further revocation proceedings. An aggrieved party may appeal a final judgment of the district court to the appropriate court of appeal. See La. R.S. 15:574.11 C (prior to amendment of La. R.S. 15:574.2 by La. Acts 2012, No. 714, § 1); Bertrand v. Louisiana Parole Bd., 2006-0871 (La.App. 1st Cir. 3/28/07), 960 So.2d 979, 980-81.

The pertinent provisions of La. R.S. 15:574.9 G (prior to amendment of La. R.S. 15:574.2 by La. Acts 2012, No. 714, § 1) state:

(l)(a) Except as provided [as stated herein], any offender who has been released on parole and whose parole supervision is being revoked under the provisions of this Subsection for his first technical violation of the conditions of parole as determined by the Board of Parole, shall be required to serve not more than ninety days without diminution of sentence or credit for time served prior to the revocation for a technical violation. The term of the revocation for the technical violation shall begin on the date the Board of Parole orders the revocation. Upon completion of the imposed technical revocation sentence, the offender shall return to active parole supervision for the remainder of the original term of supervision. The provisions of this Subsection shall apply only to an offender’s first revocation for a technical violation....
(2) A “technical violation”, as used in this Subsection, means any violation except it shall not include any of the following ...
(a) Being arrested, charged, or convicted of any of the following:
(i) A felony....
(d) Absconding from the jurisdiction of the Board of Parole.

Urging that he was improperly denied first-offender-technical-violator status, petitioner asks this court to order an application of the provisions of La. R.S. 15:574.9 G(l)(a) to allow him to return to supervised parole after serving a [smaximum sentence of ninety days without diminution of sentence or credit for time served prior to the revocation for a technical violation. He relies heavily on the preliminary hearing officer’s finding that there was no probable cause he had absconded out of state to Miami, as his probation officer had reported to the Board.

Although the preliminary hearing officer indicated there was no probable cause that petitioner was out of state, he also concluded there was probable cause that petitioner “did in fact abscond from supervision,” and that “[i]t was [petitioner’s] own testimony that he absconded.” Petitioner does not challenge the accuracy of the commissioner’s findings in the written recommendation, adopted by the district court, that petitioner informed the Board that he did not like the place he was living and thought it dangerous, and that after a “friendly” visit from police, he decided to move without permission or notification to his officer. And it is undisputed that petitioner was at large for approximately 2 years without personal contact with his officer until he was finally arrested in 2010.

According to La. R.S. 15:574.2, prior to its amendment by La. Acts 2012, No. 714, § 1, the Board’s powers and duties included determination of “the time and conditions of release on parole of any person who has been convicted of a felony and sentenced to imprisonment, and confined in any penal or correctional institution in this state.” Thus, when petitioner absconded from the supervision of his parole, he absconded from “the jurisdiction of the Board.” While it is axiomatic that the Board’s geographic jurisdictional limits are necessarily within the State of Louisiana, we recognize that jurisdiction is also power and legal authority bestowed upon the Board by the legislature. See 853 Black’s Law |r,Dictionary (Sixth ed.1990) (defining jurisdiction as, among other things, “[a] term of comprehensive import embracing every kind of judicial action”); see e.g., La. C.C.P. art. 1 (jurisdiction is the legal power and authority of a court to hear and determine an action or proceeding involving the legal relations of the parties, and to grant relief to which they are entitled). As such, we find no error in the Board’s conclusion that petitioner’s absconding from the supervision for nearly two years was sufficient under La. R.S. 15:574.9 G(2)(d) to deny him first-time-technical-violator status.

Moreover, we believe the record supports denial of first-time-technical-violator status to petitioner on an additional basis. The record shows petitioner was arrested on January 28, 2010, on felony charges. See La. R.S. 40:967C (making it unlawful for any person to knowingly and intentionally possess a Schedule II substance and subjecting them to imprisonment with or without hard labor); La. R.S. 14:69 (subjecting an offender to imprisonment with or without hard labor for the intentional possessing, procuring, receiving, or concealing of anything of value which has been the subject of a robbery or theft when the offender knew or had good reason to believe that the thing was stolen); and La. R.S. 14:2A(4) (defining a felony as any crime for which the offender may be sentenced to imprisonment at hard labor). The Board could correctly take notice of the arrest on two felony charges even though “no witnesses [were] present who could say what happened on the day [petitioner] was arrested” and the “charges [were] all dismissed,” as the preliminary hearing officer noted in his recommendation to the Board. Thus, having been arrested on two felony charges, 17petitioner cannot complain that the Board denied him first-time-technieal-violator status under La. R.S. 15:574.9 G(2)(a)(i).

DECREE

For these reasons, the district court correctly dismissed petitioner’s appeal. Appeal costs are assessed against petitioner-appellant, Luis Gonzales.

AFFIRMED.

      . Effective August 1, 2012, the Board of Pardons functioning as the committee on parole became the successor to, and assumed control of, the affairs of the Board of Parole. See La. Acts 2012, No. 714, § 4.


source: Caselaw Access Project

author: WHIPPLE, C.J. McCLENDON, J.,

license: Public Domain

text:
    Lonnie and Janice ROGERS v. Everett J. PASTUREAU.
    No. 2012 CU 2008.
    Court of Appeal of Louisiana, First Circuit.
    April 26, 2013.
    Rehearing Denied June 28, 2013.

      Karen D. Downs, Baton Rouge, LA, for Plaintiffs, Lonnie Rogers and Janice Rogers.
    Douglas M. Chapoton, Baton Rouge, LA, for Defendants, Everett J. Pastureau and Mallory Pastureau.
    Before WHIPPLE, C.J., McClendon, and Higginbotham, jj.
   WHIPPLE, C.J.

| ¡.This matter is before us on appeal by Everett and Mallory Pastureau, the father and adoptive mother, respectively, of Mr. Pastureau’s two children, from a judgment granting grandparent visitation rights to Lonnie and Janice Rogers, the parents of the children’s deceased mother, Tara Rogers Pastureau. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Everett Pastureau and Tara Rogers Pastureau were married on August 7, 1999. From this marriage two sons were born, namely, L.P. born on September 3, 2002, and J.P., born on November 7, 2005. Tara and Everett Pastureau resided in a home next door to Tara’s parents, Lonnie and Janice Rogers (Mr. and Mrs. Rogers), on False River. Tara Pastureau was diagnosed with cancer around July 13, 2005, while pregnant with J.P. She passed away on June 1, 2006, when L.P. was three years old and J.P. was six months old. During Tara’s battle with cancer, Everett often stayed with Tara in the hospital, while Mr. and Mrs. Rogers often took care of the children.

After Tara’s death, Everett and the boys continued to live next door to their grandparents. As Everett began traveling to Austin, Texas for work, the children often stayed with Mr. and Mrs. Rogers. The children attended the school where Mrs. Rogers was a pre-kindergarten teacher; the children often ate supper at the Rog-erses’ home; and the Rogerses bought the children clothing and took them to doctors’ appointments.

Everett and the boys briefly moved to Austin in the summer of 2009 but Everett and the children moved back to the Baton Rouge area in May of 2010. Everett married Mallory Pastureau on August 7, 2010.

| ^However, at some time in September of 2009, Everett and Mr. Rogers got into a heated argument. Everett and Mr. Rogers later offered conflicting testimony as to what exactly transpired, but both agree that the source of the argument was Everett’s anger at a sign made by Mr. Rogers in memory of his daughter and placed on the driveway to the False River property. When someone kept removing the sign, Mr. Rogers confronted Everett about the sign removal. Although Everett denied actually removing the sign, he admitted at trial that the sign made him angry and bothered him because the sign read “Tara Annette Drive,” and this was the name that Tara used prior to marrying Everett. As such, Everett felt that the sign erected by Mr. Rogers was disrespectful of him, as, in his view, the sign did not acknowledge Tara as his wife.

Sadly, after this confrontation, the Rog-erses were only allowed to see their grandsons on two occasions: once in February 2010 and once in May 2010. Their communication with their grandsons was also severely limited. Mrs. Rogers’s telephone records from mid-March through early November 2010 showed that twenty-eight phone calls to Everett were never answered, nor were the calls ever returned. On April 22, 2010, Mr. Rogers sent an email to Everett, wherein Mr. Rogers expressed his respect for Everett’s role as a parent; his desire and willingness to extend a “sincere” effort to make things work for the sake of the children; and a request that the grandchildren be allowed to attend his son’s wedding, stating that the children’s presence would help ease the pain of not having Tara there. Everett refused to allow the children to attend the wedding, complaining that the email was “concerning” because he did not want his children to carry the burden of filling a void.

|4On May 6, 2010, the Rogerses’ other daughter, Allison (who, notably, was also L.P.’s Godmother), sent an email to Everett requesting that she be allowed to see her nephews. Everett responded, in pertinent part, “[T]hese aren’t your boys, they aren’t your family’s boys, they are meant to be with me and we are simply happier since we have removed the negative influences in our lives.”

After virtually every effort to see their grandchildren was refused (or unacknowledged), on December 20, 2010, the Rogers-es filed a petition for grandparent visitation rights with the Family Court for East Baton Rouge Parish. The petition alleged that Mr. and Mrs. Rogers had been very involved in their grandchildren’s lives up until the early months of 2010, when Everett limited and then terminated their contact with the children. The petition alleged that visitation is in the best interest of the children due to the Rogerses’ prior loving and close relationship with the children and the benefits the children would derive from continuing their close and loving relationship with their grandparents.

Everett responded to the petition with allegations that Lonnie Rogers had become violent towards him in front of his two minor sons and that the Rogerses have shown no interest in perpetuating the way that Everett and his new wife, Mallory, want to raise the children. Everett also alleged that the grandparent visitation statutes are unconstitutional.

After the suit was filed by Mr. and Mrs. Rogers and was pending, Mallory adopted L.P. and J.P., on May 6, 2011, pursuant to a decree rendered by the Juvenile Court of East Baton Rouge Parish. Accordingly, the Rogerses then amended their petition for grandparent visitation rights in the pending suit on |s August 3, 2011, to add Mallory Pastureau as an additional defendant by voluntary joinder.

Prior to the beginning of the full trial on the merits, the trial judge ordered an interim visitation schedule to cover a ten-week period. Due to scheduling conflicts, the trial was continued beyond the ten weeks provided for in the interim visitation schedule. However, in the interim, the parties continued to have disagreements over the visitation schedule. The Rogers-es filed a rule to show cause, seeking to extend the terms of the interim visitation schedule until the trial on the merits. Mr. and Mrs. Rogers also filed a rule for contempt, alleging that despite the court’s interim orders, they had been denied visitation on “week 10” as provided for in the interim visitation schedule.

The trial on the merits began on August 15, 2011 and resumed on November 21, 2011, at which time the trial judge rendered another interim order. This interim order provided that the Rogerses were to have visitation with their grandchildren on November 23, 2011, and this was to include lunch with Everett and Mallory present. The order also provided that the Rogerses were granted the right to visit with the grandchildren on December 27, 28, 29, and 30, 2011, in the Orlando/Celebration, Florida area. As will be discussed more thoroughly below, although Mr. and Mrs. Rogers traveled to Florida with gifts and plans for entertaining the children, these December visits never took place due to the actions and misconduct of the Pastureaus in failing or refusing to facilitate the visitation ordered by the court.

After a bitterly contested trial on the merits, which continued over nine additional days, the trial concluded on June 11, 2012. At trial, extensive testimony and evidence was introduced in support of and in opposition to the limited |nvisitation sought by Mr. and Mrs. Rogers. As the trial court astutely concluded, the sum of the evidence overwhelmingly demonstrates that the Pastureaus acted unreasonably throughout and engaged in an unwarranted and extended course of conduct designed to alienate the children from their grandparents, contrary to the children’s best interest, which was the continuation of the loving relationship that had existed between the children and their grandparents for the majority of their lives.

For example, the record reflects that during two of the “interim” visits, the older grandson became visibly upset and said such things to the Rogerses as, “I cannot get any new toys because of the lawsuit” and “[w]e can’t have fun because then you will tell the judge and my dad will go to jail.”

As the trial court noted, equally troubling are two videos that were introduced by the Pastureaus into the record. In the first video, Mallory is shown arguing with the Rogerses at a school fair; Everett is videotaping; and the children are present. The older grandson is crying in the background and saying, “I don’t want to go with them ... tape it daddy, tape it.” Mallory tells Mr. Rogers that the children do not want to go with him; she can not make them go against their wishes; “I’m not going to jail because of this”; and “[m]y kids remember bad things about you.”

The second video is a tape of events at the Pastureaus’ home in Orlando, Florida made by them using a camera hidden in a teddy bear under the Pastureaus’ Christmas tree. The video camera is pointed at the front door of the home to record the Rogerses coming to pick up the children for the December 27, 28, and 29, 2011 visits, as ordered by the November 21, 2011 interim judgment. In the video, the children come to the door and tell the Rogerses that they do not want to go with them. The Rogerses then plead with their grandsons, saying “it will be fun,” “we have Christmas presents,” and “we are going to the theme park.” After |7the children are allowed by the Pastureaus to refuse to go with their grandparents, Mr. and Mrs. Rogers leave.

Later, when asked at trial why visitation with the grandparents would not be beneficial to the children, Everett responded that he decided to try to build a “whole new family” and he does not want the family to be broken. According to Everett, if he allowed the visits, he would have difficulty “explaining” to E.P. (Mallory’s daughter from a prior relationship, whom Everett has now adopted) why she is not a part of that family, when all along, he has been stating to his “new” family that they are all part of a solid, non-broken family. Specifically, when questioned about why visitation would not be beneficial, Everett testified:

It’s not beneficial at all because it sends a clear message and fortifies the two families and my whole point in the core purpose [sic] and what I’m involved in is my family now ... that we are inclusive.”

At the conclusion of the lengthy trial, the trial court concluded that this clearly was one of the worst cases of alienation the court had ever seen; that the Pastu-reaus were the sole cause of the reluctance of the minor children to go with their grandparents; that Everett’s testimony and explanation were not credible; and that Everett’s memory and recollection was “selective and self-serving.” After finding that the grandparent visitation statutes were constitutional, the trial judge awarded visitation to the Rogerses and found the Pastureaus in contempt of court. Concluding that visitation with their grandparents was in the best interest of the children, the trial court then granted specific visitation in favor of Mr. and Mrs. Rogers, ordering that the Rogerses have visitation with their two grandsons consisting of one weekend every other month, two nights during the school Christmas break, and one week during the school summer break. After obviously considering the turmoil, bickering and conduct of the Pastureaus that had taken | Rplace when the Pastureaus demanded to be included in all family events, which clearly interfered with and undermined the attempts of Mr. and Mrs. Rogers to exercise visitation, the trial court further ordered that Everett and Mallory Pastureau were not to be present for the visitation unless specifically invited by the Rogerses.

The Pastureaus then filed the instant appeal, asserting the following assignments of error:

1. The trial court did not have jurisdiction to render the visitation judgment; rather, the Juvenile Court had jurisdiction as it rendered an adoption decree pertaining to these children;

2. The trial judge erred as a matter of law by awarding visitation under the incorrect statute;

3. The Louisiana grandparent visitation statutes are unconstitutional on their face, and the judgment rendered herein is unconstitutional;

4. The judgment rendered herein was manifestly erroneous as it awarded visitation to the grandparents as they requested over how the parents wanted the visitation to occur;

5. The portion of the judgment finding the Pastureaus in contempt of court was manifestly erroneous.

SUBJECT MATTER JURISDICTION (Assignment of Error No. 1)

Louisiana Revised Statute 13:1401 establishes .and defines the exclusive, but limited, subject matter jurisdiction of the East Baton Rouge Family Court, stating that the Family Court has “exclusive jurisdiction” over “custody and visitation of children.” It is undisputed that the Family Court initially had subject matter jurisdiction over this petition for grandparent visitation rights. However, the Pastu-reaus argue that the Family Court erred in rendering judgment herein, as it | ^subsequently lost jurisdiction when Mallory Pastureau later adopted L.P. and J.P., pursuant to an adoption decree rendered by the Juvenile Court.

In support, the Pastureaus rely on LSA-Ch.C. art. 1265, which provides that a request for limited visitation rights shall be made by motion of the grandparents and filed with the court which rendered the final decree of adoption. Accordingly, the Pastureaus argue, the Family Court erred in exercising jurisdiction as the Juvenile Court has exclusive subject matter jurisdiction over this visitation action since it rendered the final decree of adoption. We disagree.

Louisiana Children’s Code article 1265 states that a motion for grandparent visitation shall be filed with the court which “rendered” the final decree of adoption. When Mr. and Mrs. Rogers filed their petition, no adoption decree had been rendered. Thus, there was no court “which rendered” the final decree of adoption in which to file the motion when the visitation was sought. Accordingly, we find that the clear and unambiguous language of LSA-Ch.C. art. 1265 demonstrates that it does not apply herein to govern the Rogerses’ petition for grandparent visitation, filed prior to the adoption of the children.

Moreover, if there is some ambiguity in the language of LSA-Ch.C. art. 1265, then it must be interpreted as having the meaning that best conforms to the purpose of the law. LSA-C.C. art. 10. We do not find that the purpose of LSA-Ch.C. art. 1265 is to divest the Family Court of jurisdiction over a properly filed visitation proceeding that has been before the Family Court for several months, and with which the Family Court is familiar and has rendered interim orders in, simply because an intra-family adoption decree is later rendered by the Juvenile Court. 110Such a result would be contrary to the principles of judicial efficiency and would encourage forum shopping.

For the foregoing reasons, we conclude that LSA-Ch.C. art. 1265 is not dispositive of this petition for grandparent visitation rights. The Family Court lawfully maintained jurisdiction over this matter, despite the subsequent adoption. Accordingly, we deny the exception of lack of subject matter jurisdiction at the movers’ costs.

DETERMINATION OF APPLICABLE LAW (LSA-R.S. 9:344 or Ch.C. Art 1256) (Assignment of Error No. 2)

There are three legislative enactments addressing grandparent visitation rights in Louisiana. First, LSA-C.C. art. 136 provides, in pertinent part, that “under extraordinary circumstances,” a “relative by blood or affinity” may be awarded reasonable visitation rights if found to be in the best interest of the child. Second, LSA-R.S. 9:344 provides for visitation rights of grandparents “[i]f one of the parties to a marriage dies, is interdicted, or is incarcerated, and there is a minor child or children of such marriage.” Third, LSA-Ch.C. art. 1256 provides that following the rendition of a final adoption decree, “grandparents may obtain limited visitation rights to the adopted child.” (Emphasis added).

The Pastureaus contend that the trial court erred as a matter of law by awarding visitation to the grandparents under LSA-R.S. 9:344 (grandparents can obtain visitation upon death of a party to the marriage) and LSA-C.C. art. 136(B), (relative by blood or affinity may get “reasonable visitation” if in the child’s best interest), rather than under LSA-Ch.C. art. 1256 (after adoption, grandparents can lnobtain “limited visitation”). The Pastureaus further argue that on de novo review, this court should further limit the Rogerses’ visitation because LSA-Ch.C. art. 1256 grants grandparents “only limited” visitation rights. We find no merit to these arguments.

As previously stated, at the time the Rogerses initially filed their petition for visitation, the grandchildren were not adopted by their step-mother. Accordingly, when the petition was filed, the Rogers-es clearly had a right of action to seek visitation under LSA-R.S. 9:344, as they were the parents of a deceased party to a marriage and there were minor children of such marriage.

Further, we do not find that the subsequent adoption of the children negated the rights of the grandparents to pursue court-ordered visitation under LSA-R.S. 9:344. As this Court recently noted in Francis v. Francis, 2011-2116 (LaApp. 1st Cir.6/13/12), 97 So.3d 1091, 1094, writ denied, 2012-1635 (La.7/24/12), 93 So.3d 582, “the clear and unambiguous language of Article 1256 does not foreclose any rights to visitation that grandparents may have pursuant to other authority....”

We further note that LSA-R.S. 9:344 was enacted after LSA-Ch.C. art. 1256. Moreover, in its enactment of LSA-R.S. 9:344, the legislature did not include language therein stating that in the event of a conflict, the provisions of the Children Code article would supersede those of the statute. In comparison, LSA-C.C. art. 136(E) specifically states: “[i]n the event of a conflict between this Article and R.S. 9:344, the provisions of the statute shall supersede those of this Article.”

| i?For these reasons, we conclude that the ruling in the instant matter is not interdicted or governed by LSA-Ch.C. art. 1256. We further clarify that the ruling in the instant matter was properly rendered under LSA-R.S. 9:344, as LSA-C.C. art. 136(E) unequivocally provides that in the event of a conflict, the provisions of LSA-R.S. 9:344 shall supersede those of LSA-C.C. art. 136.

THE TROXEL V. GRANVILLE STANDARDS (Assignment of Error No. 3)

Citing Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000), the Pastureaus next contend that the trial judge erred by failing to give “material or special” weight to their decision that, as parents, they should be present at all times for their children’s visits with the Rogerses. We find no merit to this argument.

In Troxel, paternal grandparents, after their son’s death, sought visitation with their granddaughters from the girls’ mother, pursuant to a Washington statute. The Washington statute permitted “[a]ny person” to petition for visitation rights “at any time” and authorized the state courts to grant such rights “when visitation may serve the best interest of the child.” The trial court entered a visitation decree ordering visitation with the grandparents one weekend per month, one week during the summer, and four hours on each of the grandparents’ birthdays. Troxel, 530 U.S. at 61, 120 S.Ct. at 2057-2058. The Washington Supreme Court reversed the decision, finding that the Washington statute infringed on the fundamental rights of parents to rear their children. Troxel, 530 U.S. at 63, 120 S.Ct. at 2058. The U.S. Supreme Court then granted certiorari and affirmed, finding that the visitation order in the case was an unconstitutional infringement on the mother’s fundamental right to make decisions concerning the care, custody, and control of |13her two daughters. The U.S. Supreme Court commented that the trial court “failed to accord the determination of Granville [the mother], a fit custodial parent, any material weight.” Troxel, 530 U.S. at 71, 120 S.Ct. at 2063. In addressing the trial court’s failure to give special weight to the mother’s determination of her daughters’ best interests, the U.S. Supreme Court took issue with the trial judge’s comments that “it is normally in the best interest of the children to spend quality time with the grandparent, unless the grandparent, [sic] there are some issues or problems involved wherein the grandparents, their lifestyles are going to impact adversely upon the children.” The U.S. Supreme Court found that by said statement, the trial judge in effect placed on the mother the burden of “disproving” that visitation would be in the best interest of her daughters. Troxel, 530 U.S. at 69,120 S.Ct. at 2062.

Contrary to the Pastureaus’ contention, the trial judge herein did not place the burden on the Pastureaus of “disproving” that visitation with the Rogers would be in the best interest of the children. The trial judge correctly explained in her reasons for judgment that case law has established that the non-parent has the burden of proving that visitation would be reasonable and in the best interest of the children.

Moreover, when the trial judge entered an interim visitation order, Everett was to be present for the first four scheduled visits between the Rogerses and the grandchildren and the visits were to take place at both the Pastureaus’ and the Rog-erses’ homes. The trial judge then entered another interim order, wherein the Pastureaus and the Rogerses were to have lunch together, prior to the Rogerses having visitation alone with their grandchildren.

As these interim orders demonstrate, the trial judge did give material or special weight to the Pastureaus’ expressed desires and concerns about being present for the visits in order to build a single family unit. Nevertheless, the record 1 ^demonstrates that the inclusion of the Pastureaus has not worked in the past, due to the Pastureaus’ own conduct and unjustified action in preventing visitation. Given the record as a whole, and the high level of animosity between the parties, we find no error in the limitations placed by the court on the interaction of the parents and grandparents, as the ruling was clearly based on evidence establishing that such an order was warranted and in the best interest of the children.

FACIAL CONSTITUTIONALITY OF GRANDPARENT VISITATION STATUTES (Assignments of Error Nos. 4 and No. 5)

The Pastureaus next contend that LSA-R.S. 9:344, LSA-C.C. art. 136(B), and LSA-Ch.C. arts. 1256 and 1264 are unconstitutional on their face and unconstitutional as they violate the Equal Protection Clauses of the United States Constitution and Louisiana Constitution. As we have previously determined that the instant matter is governed by LSA-R.S. 9:344, we will only address the constitutionality of this specific statute.

This Court in Barry v. McDaniel, 2005-2455 (La.App. 1st Cir.3/24/06), 934 So.2d 69, 76, thoroughly addressed the constitutionality of LSA-R.S. 9:344 and found the statute constitutional on its face. In reaching its decision, this court emphasized the well-established principle that when a court can reasonably construe a statute to preserve its constitutionality, it must do so. Barry, 934 So.2d at 76, citing, Metro Riverboat Associates, Inc. v. Louisiana Gaming Control Board, 2001-0185 (La.10/16/01), 797 So.2d 656, 662. The opinion then summarized how prior decisions of this Court have interpreted and applied LSA-R.S. 9:344, stating as follows:

1 ifjln Babin v. Babin, 2002-0396 (La.App. 1st Cir.7/30/03), 854 So.2d 403, 410-411, writ denied, 2003-2460 (La.9/24/03), 854 So.2d 338, cert. denied sub nom., Babin v. Darce, 540 U.S. 1182, 124 S.Ct. 1421, 158 L.Ed.2d 86 (2004), and in Wood [v. Wood], 835 So.2d [568] at 573 [ (La.App. 1 Cir.2002) ], this court noted that a proper interpretation of La. R.S. 9:344 requires the trial court to balance the statute against a fit parent’s constitutionally protected fundamental right of privacy in child rearing and to remember that any rights of nonparents are ancillary to that of a fit parent. Further, the nonparent has the burden of proving visitation or a modification of visitation would be “reasonable” and in the “best interest” of the child as is required by the statute. Wood, 835 So.2d at 573, 574; Babin, 854 So.2d at 410. In considering the best interest of the child, the trial court must be aware that as nonparent visitation increases, the infringement and burden on the parent’s fundamental right of privacy in child rearing increases proportionally. Wood, 835 So.2d at 573; Babin, 854 So.2d at 410—411. Visitation that unduly burdens parental rights would be unconstitutional, regardless of the provisions of statutory law. Wood, 835 So.2d at 573; Babin, 854 So.2d at 411.

This court concluded that given the juris-prudentially imposed guidelines, as established in Babin and Wood, and the duty to construe a statute to preserve its constitutionality, LSA-R.S. 9:344 is constitutional on its face. Barry, 934 So.2d at 76.

While recognizing that this Court has addressed the issue and rendered its decision in Barry, the Pastureaus nonetheless contend that the jurisprudential rules are insufficient to render the statute constitutional. Instead, they contend the language of the statute itself must contain language protecting the constitutional rights of the parents.

The Pastureaus’ argument fails to recognize that when a court can reasonably construe a statute to preserve its constitutionality, it must do so. Moreover, the U.S. Supreme Court in Troxel, supra, also recognized that judicial interpretation of a statute may come into play when considering its constitutionality. As set forth in Troxel, in pertinent part:

The Washington Supreme Court had the opportunity to give § 26.10.160(3) a narrower reading, but it declined to do so. See, e.g., [In re Custody of Smith] 137 Wash.2d, [1] at 5, 969 P.2d, [21] at 23 [ (1998) ] (“[The statute] allow[s] any person, at any time, to petition for visitation without regard to relationship to the child, without regard to
changed circumstances, and without | ^regard to harm”); id., at 20, 969 P.2d, at 30 (“[The statute] allow[s] ‘any person’ to petition for forced visitation of a child at ‘any time’ with the only requirement being that the visitation serve the best interest of the child”). Troxel, 530 U.S. at 67,120 S.Ct. at 2061. (Emphasis added).

Accordingly, given the jurisprudentially imposed guidelines, which (1) place the burden of proof on the non-parent and (2) mandate recognition that the rights of a non-parent are ancillary to that of a fit parent, we again find that LSA-R.S. 9:344 is not unconstitutional on its face.

As to the Pastureaus’ alternative ai'gument that LSA-R.S. 9:344 is unconstitutional in that it violates the equal protection clause of the United States Constitution and Louisiana Constitution, we likewise find no merit. The basis of the Pastureaus’ equal protection argument is that the grandparent visitation statutes treat adoptive parents differently from biological parents, despite other provisions of law providing that adoptive parents are given all rights as if the children were born to them. Specifically, the Pastu-reaus contend that adoptive parents are subject to grandparent visitation rights even when against what they believe to be in the best interest of their children, whereas there is no such infringement allowed on a natural parent’s right to raise their children. We find no merit to this argument.

Equal treatment of all claimants in all circumstances is not required. The law merely requires equal application in similar circumstances. Beauclaire v. Greenhouse, 2005-0765, (La.2/22/06), 922 So.2d 501, 505. Applying said principle, we find that LSA-R.S. 9:344 does not treat an adoptive parent any differently from a biological parent “in similar circumstances,” where there has been a death of the child’s other parent. A biological parent would also be subject to a claim of grandparent visitation under such circumstances, if shown to be in the best interest of the child.

^CONSTITUTIONALITY OF JUDGMENT RENDERED (Assignments of Error Nos. 6, 7, and 8)

In assignments of error numbers six and eight, the Pastureaus assert that: (1) the judgment violates their fundamental right as parents to make decisions concerning their children and (2) the judgment violates the due process clause. These separate assignments of error are addressed as one herein, as they are interrelated. The crux of both of these arguments is that this particular judgment is unconstitutional as it “unduly burdens” the Pastureaus’ parental rights.

The Pastureaus argue that this judgment is unduly burdensome because: (1) it orders the parents away from their minor children so that the Rogerses can exercise the visitation in the manner and under the conditions which they choose; and (2) the judgment is unduly burdensome as it requires them to travel and bear the expenses of travel in order for the Rogerses to have visitation. We find no merit to these arguments.

The judgment does not give Mr. and Mrs. Rogers the right to exercise grandparent visitation as they choose. Instead, the judgment outlines a very specific visitation schedule, consisting of weekend visits every other month, two days during the holiday break, and one week during the summer, for a total of only twenty-one days per year.

We further find that the trial judge made all reasonable efforts to fairly and appropriately allocate the visitation travel expenses. Clearly, the burden of travel expenses and time is greater for the Rog-erses. The judgment provides that Mr. and Mrs. Rogers are to travel to Florida for the weekend visits in January, March, May, July, September and November. In contrast, the Pastureaus are only required to | ¶«bring the children to Louisiana two times during the year, ie., once during the Christmas break and once over the summer break. Considering the record as a whole, we conclude that the provisions of the judgment are reasonable, as the Pastu-reaus have other relatives in Louisiana whom they routinely travel to Louisiana to visit with. The Pastureaus provided no testimony or evidence regarding their finances or inability to pay travel expenses. When questioned about the logistics of traveling to Louisiana, Mallory only took issue with the possibility of traveling to Louisiana for weekend visits. Again, the judgment does not require the Pastureaus to travel to Louisiana for any weekend visits.

Moreover, we find that the terms of this visitation order are “less burdensome” than the grandparent visitation ordered in prior cases before this court, which we have previously upheld. In Babin v. Babin, 2002-0396 (La.App. 1st Cir.7/30/03), 854 So.2d 403, 411-412, writ denied, 2003-2460 (La.9/24/03), 854 So.2d 338, cert, denied sub nom., Babin v. Darce, 540 U.S. 1182, 124 S.Ct. 1421, 158 L.Ed.2d 86 (2004), the grandmother was awarded four hours of visitation every three weeks with her grandchildren. The grandmother and the father were also ordered to attend counseling. This Court affirmed the visitation, finding the trial court was careful to limit the grandparent visitation so as not to be a significant intrusion upon the children’s relationship with their father. In Barry 934 So.2d at 72, 79, this court affirmed the judgment of the trial court, granting the grandparents visitation with their granddaughter on the first weekend of every month from 6:00 p.m. on Friday through 6:00 p.m. on Sunday and one week during summer.

For the foregoing reasons, we conclude the judgment rendered in this matter is amply supported by the record and does not unduly burden the Pastureaus’ parental rights and/or violate their due process rights.

|iaMANIFEST ERROR IN THE JUDGMENT (Assignments of Error Nos. 11 and 12)

The Pastureaus next argue that the judgment was manifestly erroneous. We find no merit to this argument.

The trial court is vested with vast discretion in matters of child custody and visitation. Accordingly, its determination regarding the same is entitled to great weight and will not be disturbed on appeal unless an abuse of discretion is clearly shown. As an appellate court, we cannot set aside the trial court’s factual findings unless we determine that there is no reasonable factual basis for the findings and the findings are clearly wrong (manifestly erroneous). If the findings are reasonable in light of the record reviewed in its entirety, an appellate court may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Babin, 854 So.2d at 408, citing, Stephens v. Stephens, 2002-0402, (La.App. 1st Cir.6/21/02), 822 So.2d 770, 774, and Stobart v. State, Department of Transportation and Development, 617 So.2d 880, 882 (La.1993).

As reflected in the voluminous record generated over the eleven-day trial of this matter, the trial judge heard extensive testimony regarding the close and loving relationship that Mr. and Mrs. Rogers and their extended family members had with their grandsons, prior to Everett terminating their communication and visits with these children. Notably, Everett began to limit the Rogerses interaction with their grandsons only after he got into an argument with Mr. Rogers about an issue that clearly had no relevance to the Rog-erses’ extensively documented loving and nurturing relationship with the children, which had existed for the duration of the children’s lives. The record does not reflect that the Rogerses ever interfered or disregarded, in any manner whatsoever, Everett and Mallory’s rights as parents to make decisions for their children concerning their health, education or religion. At lapmost, there was only one instance discussed wherein Everett claimed the Rog-erses placed their grandsons in a dangerous situation. Specifically, a picture was introduced showing Mrs. Rogers holding a beer while on a “party barge” with her grandsons. Mrs. Rogers acknowledged that she had a beer in her hand in the picture, but further explained that she does not like beer, so she at most only had a few sips with her lunch. Further, while we are cognizant of the dangers of mixing alcohol and boating, especially in the presence of children, we note that when factual findings are based on the credibility of witnesses, the fact finder’s decision to credit a witness’s testimony must be given “great deference” by the appellate court. Babin, 854 So.2d at 408. On review, we find no error in the trial court’s acceptance of Mrs. Rogerses’ testimony regarding this event.

Accordingly, after thoroughly reviewing the testimony in the record and the documentary evidence introduced by the parties, we find no manifest error in the trial court’s ultimate finding that visitation with Mr. and Mrs. Rogers was in the children’s best interest.

CONTEMPT (Assignments of Error Nos. 9 and 10)

The Rogerses filed two rules for contempt in these proceedings, which were both granted by the trial judge at the conclusion of the trial on the merits. On appeal, the Pastureaus contend that the trial judge erred in finding them in contempt. We disagree.

The first rule for contempt was filed by Mr. and Mrs. Rogers on April 21, 2011. This rule alleged that the Pastureaus failed to abide by the provision in the interim visitation order of February 28, 2011, which provided that on “week 10,” the Rogerses would have visitation with the grandchildren on Sunday from 1:00 to 6:00 p.m., unless the parties agreed otherwise. The rule alleged that the time was |2ichanged by agreement of the parties in order to accommodate the children, so that they could attend a birthday party. However, when Mr. and Mrs. Rogers arrived at the Pastureaus’ home to pick up the children, Everett became very upset when he was informed that the children’s aunt (the Rogerses’ daughter) would be part of the visitation. Everett then forced the children to decide between going with the Rogerses or going to a birthday party and Earth Day. The Rogerses eventually left the Pastureaus’ home without exercising visitation.

In response to the rule for contempt, the Pastureaus stated that the Rogerses “had gone outside the judgment and invited other persons to the visitation.” However, we note that there was no provision in the February 28, 2011 judgment prohibiting additional family members, including the Rogerses’ daughter/the children’s aunt, from participating in the visitation with the grandchildren.

The second rule for contempt was filed on February 9, 2012, and pertained to the court-ordered visitation that was scheduled to take place on December 27, 28, 29, and 30, 2011 in the Orlando/Celebration, Florida area, pursuant to the November 21, 2011 interim judgment. In this rule, Mr. and Mrs. Rogers alleged that after they had incurred travel expenses in traveling to Florida and attempted to exercise visitation there, when they arrived at the Pas-tureaus’ home on December 27, 28, and 29, they were met at the door by Everett or Mallory and the children, and were informed that the children did not want to go with them. The rule essentially alleged that Everett and Mallory made no effort to facilitate the court-ordered visitation and refused to encourage the children to go with the Rogerses. The rule further alleged that the Pastureaus willfully acted to prevent Mr. and Mrs. Rogers from being able to enjoy a positive visitation experience with the children.

The Pastureaus’ response to this rule for contempt states that there was no evidence presented by Mr. and Mrs. Rogers which demonstrates that the Pastureaus did not do everything to try to facilitate this visitation. We disagree.

|22As previously mentioned, the Pastu-reaus videotaped the Rogerses arrival at their home on December 27, 28, and 29 to pick up the children, and the videos were introduced into evidence. The videos clearly show that the Pastureaus made no attempts to get the children to go with the Rogerses, they simply called the children to the door and had the children state they did not want to go. Moreover, Mallory admitted at trial that during these exchanges, Everett never instructed the children to go with the Rogerses, rather he said “if you want to go boys, go.”

To find a person guilty of constructive contempt, the court must find that he or she violated the order of the court intentionally, knowingly, and purposely, without justifiable excuse. The trial court is vested with great discretion in determining whether a party should be held in contempt of court and its decision will be reversed only when the appellate court discerns a clear abuse of that great discretion. Haydel v. Pellegrin, 2007-0922 (La.App. 1st Cir.9/14/07), 970 So.2d 629, 632.

On thorough review of the record herein, including the affidavits filed in conjunction with the rules for contempt, the parties’ testimony as to the disputed visitations, and, in particular, the videos made by the Pastureaus themselves depicting the rebuffed efforts of the Rogers-es to exercise the visitation that had been lawfully granted to them, we find the record overwhelmingly supports the trial court’s finding that the Pastureaus acted willfully and in contempt of the court’s orders as alleged in both contempt rules.

CONCLUSION

For the reasons stated herein, the trial court’s judgment is hereby affirmed. The exception of lack of subject matter jurisdiction and motion for stay, filed by the Pastureaus as separate pleadings with this Court, are also hereby denied. All costs of this appeal are assessed to the appellants, Everett and Mallory Pastureau.

JUDGMENT AFFIRMED; EXCEPTION AND MOTION DENIED.

McCLENDON, J., concurs and assigns reasons.

McCLENDON, J.,

concurs and assigns reasons.

|,Based on the specific facts presented, I concur with the result reached by the majority.

      . According to Mallory, they only began dating in July of 2009. She also testified that eventually they began living together with the boys in an apartment in Baton Rouge.

      . At trial, Everett set forth that he refused to allow the children to attend even the church ceremonies of his former brother-in-law (and current employee) because he thought the grandparents would be busy partying and would not focus solely on his children.

      . As required by LSA-R.S. 13:4448, the Attorney General was served with a copy of the answer in which Everett challenged the constitutionality of the grandparent visitation statutes "on its face and as applied to the facts of this case.”

      .Around this same time period, Everett also adopted Mallory’s daughter from a prior relationship.

      . During the course of this litigation, the Pas-tureaus relocated to the Orlando/Celebration, Florida area.

      . The record also reflects that Mr. and Mrs. Rogers initially were allowed and agreed to take E.P. on visits with their grandchildren and that they honored her and treated her to gifts on holidays like their other grandchildren. For reasons not clear in the record, these visits were also later disallowed.

      . While we find no merit to the exception or the arguments urged in support, we note that the fact that the Pastureaus have raised the objection of lack of subject matter jurisdiction for the first time in this appeal is of no moment, as the issue of subject matter jurisdiction can not be waived and can be considered at any time. LSA-C.C.P. art. 925(C).
      In addition to raising the issue of subject matter jurisdiction in their brief, the Pastu-reaus also filed a separate pleading entitled "Exception of Lack of Subject Matter Jurisdiction” with this court. Thus, this issue is properly before us.

      . Subsequent to the filing of the petition herein, LSA-C.C. art. 136 was amended by Acts 2012, No. 763, § 1, eff. June 12, 2012.

      . The trial judge stated the following in her oral reasons for judgment:
      Under the provisions of Revised Statute 9:344, I find visitation to the grandparents to be in the best interests of [L.P. and J.P.]. Under the provisions of Civil Code Article 136, ... I find extraordinary circumstances exist to grant reasonable visitation to the grandparents....

      .Louisiana Children's Code art. 1256 was enacted by Acts 1991, No. 235, § 12. However, LSA-R.S. 9:344 was enacted by Acts 1993, No. 261, § 5, and amended by Acts 1999, No. 1352, § 1 and Acts 2012, No. 763, § 2.

      . Moreover, as set forth in our discussion of the remaining assignments of error, even if we were to find error in the trial court’s reliance on or citation to LSA-R.S. 9:344 and LSA-C.C. art. 136, we would nonetheless affirm. As the record amply demonstrates, the visitation and limitations upon such granted to Mr. and Mrs. Rogers were reasonable and warranted and satisfies the standard of "limited” visitation envisioned by LSA-Ch.C. art. 1256.

      . Courts should refrain from reaching or determining the constitutionality of legislation unless, in the context of a particular case, the resolution of the constitutional issue is essential to the decision of the case or controversy. State v. Brown, 2003-2788 (La.7/6/04), 879 So.2d 1276, 1280.

      . In assignment of error number 7, the Pas-tureaus argue that this particular judgment is unconstitutional because it violates the equal protection clause. The Pastureaus’ brief does not discuss how this exact judgment violates the equal protection clause. Accordingly, other than our earlier discussion of whether LSA-R.S. 9:344 violates the equal protection clause on its face, we pretermit further discussion on this issue, as the Pastureaus have raised no additional arguments.

      . In doing do, we pretermit discussion of the evidence regarding Everett Pastureau’s own actions which purportedly resulted in his arrest in Texas.


author: WELCH, J.

text:
    LOUISIANA PUBLIC SERVICE COMMISSION, and in their Capacities as Commissioners, Lambert C. Boissiere, III, James M. Field, Foster L. Campbell, Eric Skrmetta, and Clyde C. Holloway v. LOUISIANA STATE LEGISLATURE.
    No. 2012 CA 0353.
    Court of Appeal of Louisiana, First Circuit.
    April 26, 2013.

      Dennis C. Weber, Amanda H. Smith, Stephen G. Kabel, Baton Rouge, LA, for Appellants Plaintiffs — Louisiana Public Service Commission, Department of Public Service, and in their official capacities as Commissioners, Lambert C. Boissiere, III, James M. Field, Foster L. Campbell, Eric F. Skrmetta and Clyde C. Holloway.
    Patricia H. Wilton, Asst. A.G., Michael J. Vallan, Asst. A.G., Alfred W. Speer, Mary F. Quaid, Baton Rouge, LA, for Ap-pellee Defendant — Louisiana State Legislature.
    Before WHIPPLE, C.J., PARRO, KUHN, GUIDRY, PETTIGREW, McDonald, McClendon, welch, HIGGINBOTHAM, THERIOT, and KLINE, JJ.

      . Hon. William F. Kline, Jr., retired, is serving as judge ad hoc by special appointment of the Louisiana Supreme Court.

   WELCH, J.

^Plaintiffs, the Louisiana Public Service Commission (LPSC) and its commissioners in their official capacities, Lambert C. Boissiere, III, James M. Field, Foster L. Campbell, Eric F. Skrmetta, and Clyde C. Holloway, appeal a judgment sustaining a peremptory exception raising the objection of no cause of action in favor of defendant, the Louisiana State Legislature (“Legislature”), and dismissing their petition challenging the constitutionality of two legislative acts with prejudice. We reverse and remand.

BACKGROUND

On July 1, 2010, the LPSC filed this lawsuit in the Nineteenth Judicial District Court against the Legislature seeking a declaration that Act 226 of the 2009 regular session and Act 633 of the 2010 regular session were unconstitutional. Specifically, the LPSC contended that the challenged acts transferred and redirected monies held in three funds, dedicated by statute to fund the operation of the LPSC, into the state’s general fund in violation of Article III, Section 2, Article VII, Section 2, and Article VII, Sections 7 and 10 of the Louisiana Constitution. The LPSC also asserted that the acts violated constitutional guarantees of equal protection and due process.

In the petition, the LPSC pled the following facts: The LPSC is a constitutionally created agency within the executive department and has the constitutional duty to manage the rates of public utilities and common carriers and to protect the interests of its jurisdictional ratepayers throughout Louisiana. All of the LPSC’s operations are funded with fees held in dedicated funds collected from its jurisdictional entities which, in turn, recuperate those amounts from their ratepayers. The LPSC does not receive any monies from the state general fund revenues. Instead, the Legislature appropriates the entirety of the LPSC’s funding from three source funds created by statute: (1) the Utility and Carrier Inspection Land Supervision Fund (established by La. R.S. 45:1177); (2) the Telephonic Solicitation Relief Fund (established by La. R.S. 45:844.14(A)(4)(a)); and (3) the Motor Carrier Regulation Fund (established by La. R.S. 45:169.1(A)(1)) (sometimes collectively referred to as the “dedicated source funds”). The fees collected and maintained in these funds were dedicated for the limited and specific purpose of funding the operations of the LPSC as it discharges its constitutionally mandated duties. The LPSC asserted that if any fee monies remain in the funds at the end of the fiscal year, those fee monies shall be retained in their respective accounts and cannot revert to the state’s general fund.

The LPSC’s petition further pled the following: On July 10, 2009, pursuant to Act 226, the State Treasurer transferred $4,000,537.00 of dedicated fees from the three dedicated source funds into the state’s general fund. On June 25, 2010, Act 633 was signed into law and directed the State Treasurer to transfer a total of $4,507,931.00 from the dedicated source funds into the state’s general fund. The LPSC asserted that Act 226 and 633’s “sweep” of fee monies from the dedicated funds into the state’s general fund, to be used as revenue as if from a tax, constituted an unconstitutional conversion of fee dollars into tax dollars and imposed an unconstitutional tax on the LPSC jurisdictional ratepayers.

The LPSC alleged that because the effect of Acts 226 and 633 was to impose a tax, the enactment of those provisions was governed by Article III, Section 2 and Article VII, Section 2 of the Louisiana Constitution, which prohibit the Legislature from introducing and enacting measures creating or increasing an existing tax during even-numbered year regular sessions and require that legislation increasing a tax or levying a new tax be enacted by two-thirds of the elected members of each house of the state legislature. Alternatively, it claimed that the complete redirection of the fee monies for a different purpose created a “new fee” which necessitated the same constitutional prerequisites for enactment. The LPSC |4alleged that Act 633, which was signed into law on June 25, 2010, was not introduced or enacted in an even-numbered year and was passed with less than the requisite two-thirds vote of the House of Representatives, thus violating the constitutional procedural requirements that must be observed before a new tax or a new fee may be enacted.

The LPSC further asserted in its petition that the “sweeps” of its dedicated source funds violated the equal protection guarantees of the United States and Louisiana Constitutions by seizing dedicated fees paid by a specific class of jurisdictional ratepayers that purchase services from LPSC regulated entities and redirecting those fee monies to be used as revenue for the benefit of non-jurisdictional ratepayers, even though they contributed nothing to the dedicated funds. It also claimed that the “sweeps” violated the due process rights of the jurisdictional ratepayers because they were made retroactively on dedicated funds, without the Legislature having taken a prospective action that would give notice to the Commission, utilities, common carriers, and jurisdictional ratepayers as to the purpose for which the fees would be used.

In response, the Legislature filed peremptory exceptions raising the objections of no right of action and no cause of action and a dilatory exception raising the objection of vagueness. In support of its exception of no right of action, the Legislature contended that the LPSC lacked standing to sue the Legislature on the grounds that its constitutional duties have been impaired by the challenged legislation or to assert third-party property rights or liberty interests allegedly belonging to the jurisdictional ratepayers and utilities. In support of its exception of no cause of action, the Legislature urged that the LPSC failed to allege facts, which, if proven, would entitle it to declaratory or any other relief under the constitution and the laws of the state of Louisiana. It submitted that because statutes are presumed to be constitutional, the LPSC bore the burden of | ^demonstrating a constitutional prohibition against the transfer of money from the three statutorily created funds and urged that the LPSC could not meet this burden. The Legislature insisted that the LPSC could not show either a constitutional or statutory prohibition against the 2009 and 2010 transfers authorized by the challenged acts, nor could it show a constitutional or statutory limitation on the Legislature’s exclusive authority to appropriate funds (including surplus statutory dedications) and to determine how the branches of government shall be funded from the public fisc. It further claimed that the LPSC failed to identify any constitutional, statutory, or jurisprudential authority for its “legal conclusion” that the 2009 and 2010 transfers converted the dedicated “fees” into “taxes” and insisted that Acts 226 and 683 do not raise revenue as alleged by the LPSC, nor do they impose a new charge or fee, or create any new assessments.

Thereafter, the LPSC filed a motion to amend its petition to name as additional plaintiffs the Department of Public Service and three LPSC commissioners, James Field, Foster Campbell, and Clyde Holloway, in their individual capacities as ratepayers, alleging that the commissioners were ratepayers of one or more common carriers or public utilities regulated by the LPSC. The trial court signed an order allowing the amendment. In the amended petition, the LPSC claimed that the Legislature’s sweep of the dedicated funds violated Article VII, Section 10 of the Louisiana Constitution, which prohibits the reduction of appropriated funds by more than five percent. In support of this claim, the LPSC alleged that at the end of each fiscal year, any surplus monies remaining in the dedicated source funds “rolled over” and became appropriated funds on the first day following the end of the fiscal year. Therefore, the LPSC asserted that the funds swept by the Legislature were in fact “appropriated funds” and that both the transfers authorized by Acts 226 and 683 exceeded five percent of the LPSC’s total appropriation for fiscal years 2009-2010 and 2010-2011. In | r,support of its Article VII, Section 10 constitutional challenge, the LPSC pled specific facts regarding the amounts appropriated for each fiscal year, the balances remaining in the accounts, the total fund balances that “rolled over” into the new fiscal year, and the amounts taken by the Legislature, from the funds. Additionally, the LPSC alleged that Acts 226 and 633 also violated Article VII of the Louisiana Constitution because they imposed a sales and use tax on natural gas, electricity, and water sold directly to the consumer for residential use. The LPSC asked the court to declare Acts 226 and 633 unconstitutional either on their face or as applied.

The Legislature filed an amended peremptory exception of no right of action contesting the plaintiffs’ standing to bring this declaratory action and an amended exception of no cause of action. In support of the amended exception of no cause of action, the Legislature asserted that surplus funds from one fiscal year do not “rollover” to become appropriated funds of the next fiscal year, and therefore, there could not possibly have been an unconstitutional excess reduction of appropriated funds as alleged by the LPSC.

A hearing on the exceptions was held on November 8, 2010. There is no transcript of the hearing in the record, and the record indicates that no evidence was filed in the trial court. Following the hearing, the trial court issued written reasons in which it found that the LPSC failed to state a cause of action in the petitions against the Legislature for which relief could be granted by the court. The court concluded that the LPSC could not show any constitutional or statutory limitation on the Legislature’s exclusive authority to appropriate public funds and had cited no authority limiting the power of the Legislature to appropriate by statute, surplus monies from a statutorily created and dedicated fund. Consequently, the court held, Acts 226 and 633 are “not themselves unconstitutional.” The court observed that a separate question may be raised as to 17whether those acts had the effect of converting the statutes that created the dedicated funds from fee statutes into taxing statutes and whether constitutional implications may arise from that conversion. However, the court noted, the LPSC did not question the constitutionality of those statutes as a result of the 2009 and 2010 Acts. In light of its ruling on the exception of no cause of action, the court held that all other exceptions were moot.

On March 31, 2011, the trial court signed a judgment sustaining the Legislature’s exception of no cause of action, decreeing the other exceptions moot, and giving the LPSC fifteen days from the mailing of the notice of the judgment to amend its petition. The LPSC appealed this judgment. On July 18, 2011, the trial court signed an amended judgment giving the LPSC fifteen days to amend its petition and decreeing that if the LPSC chose not to do so, the judgment was a final judgment. Another panel of this court dismissed the LPSC’s appeal on its own motion on November 9, 2011, finding that both judgments lacked decretal language and were uncertain because it was impossible to tell the date on which the judgments became final from the face of the judgments. Louisiana Public Service Commission v. Louisiana State Legislature, 2011-0943 (La.App. 1st Cir.11/9/11) (unpublished).

On December 8, 2011, the trial court signed a final judgment sustaining the Legislature’s exception of no cause of action and amended exception of no cause of action, decreeing that all other exceptions were moot, and dismissing the LPSC’s claims. From this judgment, the LPSC appealed.

DISCUSSION

On appeal, the LPSC contends that the trial court erred in failing to find: (1) that Acts 226 and 633 violate the due process clauses of the federal and state constitutions by retroactively converting fees paid to fund a regulatory program into taxes designed to raise revenue for general purposes; (2) the acts violate the |sequal protection guarantees of both constitutions by subjecting LPSC-jurisdictional ratepayers to a tax not assessed upon similarly situated citizens; and (3) the acts violate the constitutional requirements for the creation of a tax. In opposition, the Legislature contends that: (1) the LPSC failed to meet its burden of showing that the Legislature lacked the requisite authority to enact Acts 226 and 633; (2) the mere transfer and redirection of surplus monies remaining in a statutorily dedicated fund does not create a new tax; and (3) the LPSC does not have standing to assert due process, equal protection, or any other alleged constitutional violations.

The exception of no cause of action tests the legal sufficiency of the petition by determining whether the law affords a remedy to the plaintiff on the facts alleged in the petition. The exception is triable on the face of the pleadings, and all well-pleaded facts in the petition must be accepted as true. See Pierrotti v. Johnson, 2011-1317 (La.App. 1st Cir.3/19/12), 91 So.3d 1056, 1062. An exception of no cause of action is likely to be granted only in the unusual case in which the plaintiff includes allegations that show on the face of the petition that there is some insurmountable bar to relief. Thus, dismissal is justified only when the allegations of the petition itself clearly show that the plaintiff does not have a cause of action or when its allegations show the existence of an affirmative defense that appears clearly on the face of the pleadings. Id. When it can reasonably do so, a court should maintain a petition against an exception of no cause of action to afford a litigant an opportunity to present his evidence. Walters v. Rubicon, Inc., 96-2294 (La.App. 1st Cir.12/29/97), 706 So.2d 503, 506.

If a petition states a cause of action on any ground or portion of the demand, the objection of no cause of action must be overruled. Bruneau v. Edwards, 517 So.2d 818, 823 (La.App. 1st Cir.1987). The burden of demonstrating that a 19petition fails to state a cause of action is on the mover. Pierrotti, 91 So.3d at 1062. Because the exception raises a question of law and the trial court’s decision is based only on the sufficiency of the petition, a judgment sustaining an exception of no cause of action is reviewed by an appellate court de novo. Id.

In sustaining the Legislature’s exception of no cause of action, the trial court concluded that Acts 226 and 633 were “not themselves unconstitutional.” We find that the trial court erred in determining the merits of the LPSC’s constitutional challenges to Acts 226 and 633 on an exception of no cause of action. The purpose of the exception of no cause of action is not to determine whether the plaintiff will ultimately prevail at trial, but to only ascertain if a cause of action exists. See Watters v. Rubicon, Inc., 706 So.2d at 506. Accepting the well-pleaded facts contained in the petitions as true, we are convinced that the LPSC has stated a cause of action to challenge the validity of the Legislature’s sweep of the monies dedicated by statute to fund the LPSC into the state’s general fund. The LPSC has alleged in its petitions that Acts 226 and 633 effectively enacted, levied, or authorized a new tax or fee, and that the constitutionally prescribed procedures for measuring, levying, or authorizing a new tax or fee were not followed, rendering the acts unconstitutional. The LPSC further alleged that the acts in question improperly reduced appropriations to the LPSC beyond the constitutionally proscribed limit of five percent. Whether Acts 226 and 633 in fact had the effect of imposing a tax or new fee or took appropriated funds from the LPSC are threshold issues which must be adjudicated on the merits before the constitutional implications arising therefrom can be determined.

For these reasons, the judgment sustaining the Legislature’s exception of no cause of action is reversed. Because the trial court sustained the exception of no cause of action, it did not rule on the Legislature’s remaining exceptions, including the exception of no right of action. Although the Legislature seeks a ruling on this |inexception from this court, we find that the exception of no right of action is not properly before this court at this time. Accordingly, we remand this matter to the trial court to rule on the Legislature’s remaining exceptions.

CONCLUSION

For the foregoing reasons, the judgment sustaining the Louisiana State Legislature’s peremptory exception raising the objection of no cause of action is hereby reversed. The case is remanded to the trial court for proceedings consistent with this opinion. Costs in the amount of $972.00 are assessed to appellee, the Louisiana State Legislature.

REVERSED AND REMANDED.

GUIDRY and PETTIGREW, JJ., concur.

      . Entergy Gulf States Louisiana, L.L.C. and Entergy Louisiana, LLC filed an amicus curiae brief in support of reversing the judgment of the trial court.


author: THERIOT, J.

text:
    Ilene Murriel PETERS v. BOGALUSA COMMUNITY MEDICAL CENTER; Board of Supervisors of Louisiana, State University and Agricultural and Mechanical College; City of Bogalusa, ABC Insurance Company; DEF Insurance Company; and GHI Insurance Company.
    No. 2012 CA 1777.
    Court of Appeal of Louisiana, First Circuit.
    May 2, 2013.

      Christopher M. Moody, Albert D. Gi-raud, Hammond, LA, for Defendant/Appellant City of Bogalusa.
    Sam J. Collett, Jr., Bailey D. Morse, Covington, LA, for Plaintiff/Appellee llene Murriel Peters.
    James D. “Buddy” Caldwell, Attorney General, Sharon Y. Florence, Assistant Attorney General, New Orleans, LA, for Defendant/Appellee State of Louisiana, through the Board of Supervisors of LSU, on behalf of Bogalusa Community Medical Center.
    Before GUIDRY, CRAIN, and THERIOT, JJ.
   THERIOT, J.

12This appeal is from a summary judgment in a slip and fall case dismissing the claims against one defendant. We affirm.

FACTS AND PROCEDURAL HISTORY

On June 21, 2009, as llene Murriel Peters stepped down from the concrete pedestrian walkway outside of the Bogalusa Community Medical Center to the adjoining asphalt surface, her foot struck an exposed brick adjacent to a drain, causing her to trip and fall. Ms. Peters filed suit for her injuries against Bogalusa Community Medical Center, Board of Supervisors of Louisiana State University and Agricultural and Mechanical College (“BCMC”) and the City of Bogalusa.

BCMC filed a motion for summary judgment claiming that it was not the owner of, and did not have custody or control over, the location of the defective condition, and therefore could not be held liable. The court granted summary judgment dismissing the claims against BCMC, and this appeal by the City of Bogalusa followed.

DISCUSSION

A motion for summary judgment is a procedural device used to avoid a full scale trial when there is no genuine issue of material fact for all or part of the relief prayed for by a litigant. All Crane Rental of Georgia, Inc. v. Vincent, 10-0116, p. 4 (La.App. 1 Cir. 9/10/10), 47 So.3d 1024, 1027, writ denied, 10-2227 (La.11/19/10), 49 So.3d 387. A motion for summary judgment should only be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact and that the movant is entitled to summary judgment as a matter of law. La. C.C.P. art. 966(B).

|3The burden of proof on a motion for summary judgment remains with the mov-ant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. La. C.C.P. art. 966(C)(2). Once the motion for summary judgment has been properly supported by the moving party, the failure of the non-moving party to produce evidence of a material factual dispute mandates the granting of the motion. Pugh v. St. Tammany Parish School Board, 07-1856, p. 2 (La.App. 1 Cir. 8/21/08), 994 So.2d 95, 97 (on rehearing), writ denied, 08-2816 (La.11/21/08), 996 So.2d 1113; see also La. C.C.P. art. 967(B).

In determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria that govern the trial court’s determination of whether summary judgment is appropriate. Sanders v. Ashland Oil, Inc., 96-1751, p. 5 (La.App. 1 Cir. 6/20/97), 696 So.2d 1031, 1035, writ denied, 97-1911 (La.10/31/97), 703 So.2d 29. Because it is the | .¡applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to this case. Walker v. Phi Beta Sigma Fraternity (Rho Chapter), 96-2345, p. 6 (La. App. 1 Cir. 12/29/97), 706 So.2d 525, 528.

We are responsible for the damage occasioned by things which we have in our custody. La. C.C. art. 2317. However, in a suit against a public entity for damage caused by the condition of a thing within its care and custody, the plaintiff cannot prevail unless the public entity had actual or constructive notice of the particular vice or defect which caused the damage prior to the occurrence, and the public entity has had a reasonable opportunity to remedy the defect and has failed to do so. La. R.S. 9:2800(C).

“Custody” of a thing for which an owner is answerable for damages occasioned by its defect, distinct from ownership, refers to a person’s supervision and control over a thing. Alford v. Home Insurance Company, 96-2430 (La.App. 1 Cir. 11/7/97), 701 So.2d 1375, 1377. The test for whether a defendant has custody over a thing so as to impose liability on the defendant for defects or damage caused by it is whether the defendant has a right of direction and control over the thing and what, if any, benefit the defendant derives from the thing. Doughty v. Insured Lloyds Ins. Co., 576 So.2d 461, 464 (La.1991).

In support of the motion for summary judgment, BCMC offered the deposition testimony of the City of Bogalusa’s Public Works Director, James Hall, that the location of the accident was not owned by BCMC and was within the City of Bogalusa’s servitude. Mr. Hall also testified that the City of Bogalusa, not BCMC, was responsible for maintaining the area in [.¡¡which the plaintiff fell. BCMC’s motion for summary judgment pointed out an absence of factual support for an essential element of the plaintiffs claim against it; i.e., that it had ownership or custody of the defective thing. In response, the City of Bogalusa filed the affidavit of their Public Works Director, Mr. Hall, which stated that “upon information and belief, the Bo-galusa Medical Center had the right-of-way in question painted, striped, and marked for individual parking spaces so that the area could be used [as] a parking lot for the patients and visitors of the Bogalusa Medical Center.” Also in the record on the motion for summary judgment was the deposition of Beverly Sheridan, BCMC’s Education, Safety, and Facility Director responsible for facilities management. Ms. Sheridan testified that she did not know who painted the lines for the parking spaces in the City of Bogalu-sa’s right of way, but BCMC did not maintain that area.

In support of its argument that BCMC had control over the area in question, the City of Bogalusa relies on the presence of the striping painted over the area. It is undisputed that the City of Bogalusa did not paint the stripes. The only testimonial evidence to support that BCMC painted those lines is the statement in Hall’s affidavit to that effect and based upon “information and belief.” That statement is not sufficient to satisfy the requirement that he have “personal knowledge” of the matters set forth in the affidavit. La. C.C.P. art. 967(A); Lake Superior Piling Co., Inc. v. Mobile Oil Corp., 502 So.2d 581 (La.App. 1 Cir.1987). Therefore, that statement cannot be considered in opposition to the motion for summary judgment. La. C.C.P. art. 967(A); Vermilion Corp. v. Vaughn, 397 So.2d 490, 493 (La.1981); Robertson v. Doug Ashy Bldg. Materials, Inc., 10-1552 (La.App. 1 Cir. 10/4/11), 77 So.3d 339, 350, n. 15, writs not considered or | fidenied, 11-2432 (La.1/13/12), 77 So.3d 974; 11-2468 (La.1/13/12), 77 So.3d 972; 11-2430 and 11-2433 (La.1/13/12), 77 So.3d 973.

It is uncontested that (1) the City of Bogalusa is the owner of the area, (2) the City of Bogalusa is responsible for maintaining the area, and (3) BCMC does not maintain the area.

The City of Bogalusa offered no credible evidence that BCMC derives a benefit from the area that is not also available to the public in general. See Quinn v. RISO Investments, Inc., 03-0903 (La.App. 4 Cir. 3/3/04), 869 So.2d 922, 929, writ denied, 04-0987, p. 9 (La.6/18/04), 876 So.2d 808 (sidewalk adjacent to owner’s property was available for public use). Given those undisputed facts, we hold that the City of Bogalusa failed to present sufficient evidence to show that it could meet its burden of proving at trial that BCMC had legal custody of the area.

Based upon the evidence before the court on the motion for summary judgment, there is no genuine issue of material fact as to whether BCMC had the right of direction or control over the area where the plaintiff fell. Therefore, summary judgment dismissing the claims against BCMC is appropriate.

CONCLUSION

The summary judgment dismissing the claims against BCMC is affirmed. Costs of this appeal in the amount of $1,680.80 are assessed to appellant, the City of Bo-galusa.

AFFIRMED.

      . Louisiana Code of Civil Procedure article 967(B) provides:
      When a motion for summary judgment is made and supported as provided above, an adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided above, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him.


text:
    Louise CONLEY, Individually and on behalf of her deceased Husband, James Conley, and their Children, Glenn Conley, Sr., Rodney Conley, Jacqueline Conley Morris, Katherine Conley Thorn and Garnet Conley Daggs v. PLANTATION MANAGEMENT COMPANY, L.L.C. d/b/a Heritage Healthcare Center-Hammond and Michael J. Kozel, M.D.
    No. 2012 CA 1510.
    Court of Appeal of Louisiana, First Circuit.
    May 6, 2013.

      Charles A. Schutte, Jr., Baton Rouge, LA, for Appellant Defendant, Plantation Management Company, L.L.C. d/b/a Heritage Healthcare Center-Hammond.
    Richard T. Gallagher, Jr., Metairie, LA, for Appellees Plaintiffs, Louise Conley, Individually and on behalf of her deceased husband, James Conley and their children, Glenn Conley, Sr., Rodney Conley, Jacqueline Conley Morris, Katherine Conley Thorn and Garnet Conley Daggs.
    Before PARRO, WELCH and KLINE
       JJ.

      . Hon. William F. Kline, Jr., retired, is serving as judge ad hoc by special appointment of the Louisiana Supreme Court.

   WELCH, J.

| ^Defendant, Plantation Management Company, L.L.C. d/b/a Heritage Healthcare Center-Hammond (Heritage), appeals a judgment rendered in favor of plaintiffs, Louise Conley, et al. Finding the appeal was not timely filed, we dismiss the appeal.

FACTUAL AND PROCEDURAL BACKGROUND

On July 30, 2004, Louise Conley, individually and on behalf of her deceased husband, James Conley, and their five children, all of the age of majority, filed this medical malpractice and wrongful death suit against Heritage, a nursing home where Mr. Conley was a resident, and Dr. Michael Kozel, Mr. Conley’s treating physician at Heritage. Plaintiffs alleged that Mr. Conley died as a result of sepsis caused by his infected feet and that defendants breached the standard of care by failing to diagnose and adequately treat Mr. Conley’s medical condition and by failing to adequately monitor Mr. Conley. Dr. Kozel filed a motion for summary judgment, which was granted by the trial court, and on November 21, 2008, the trial court signed a judgment dismissing plaintiffs’ claims against Dr. Kozel and his insurer, Louisiana Medical Mutual Insurance Company, with prejudice at plaintiffs’ costs.

On June 22, 2011, the matter proceeded to trial, and at its conclusion, the trial court took the matter under advisement. A document entitled “Judgment” was signed by the trial court on August 1, 2011, and reads as follows in pertinent part:

LOUISE CONLEY, ET AL VERSUS # 2004-002624 HERITAGE HEALTHCARE CENTER, ET AL

21st JUDICIAL DISTRICT COURT PARISH OF TANGIPAHOA STATE OF LOUISIANA

JUDGMENT

This matter came to be heard on the 22nd day of June, 2011. Present in court were:

Richard Gallagher Jr., |3Charles Schutte, Jr., attorney of record for the plaintiff, Louise Conley; attorney of record for the defendants, Plantation Management Company d/b/a Heritage Healthcare Center-Hammond, and

Valerie Judice, attorney of record for the defendants, Plantation Management Company d/b/a Heritage Healthcare Center-Hammond

After hearing the testimony presented at tidal and reading the depositions of other witnesses submitted in lieu of live testimony, considering the law and evidence submitted, the Court finds that there was a breach in the standard of care owed to Mr. Conley, the Court finds in favor of the plaintiffs and awards damages of $35,000.00 plus judicial interest from the date of demand. Defendant is cast for all costs, with the exception of the costs associated with the Motion for Involuntary Dismissal of the Wrongful Death Action.

The Court bases it’s ruling on the following....

The judgment then sets forth two-and-a-half pages of reasons for judgment, which includes the factual background of the case, a summary of the trial and deposition testimony, and a factual conclusion that the actions of Jean Zane, a nurse manager employed by Heritage, fell below the standard of care owed to Mr. Conley.

On August 3, 2011, the Clerk of Court mailed a notice to counsel of record that “Judgment was Rendered on the 1st DAY OF AUGUST 2011, Read and Signed on the 1st DAY OF AUGUST 2011.” A copy of the judgment was attached to the notice. Heritage did not file an appeal from this judgment within the appeal delays for taking a suspensive appeal set forth in La. C.C.P. art. 2123 or for taking a devolutive appeal set forth in La. C.C.P. art.2087. Instead, on January 20, 2012, Heritage filed a “Motion to Enter Judgment” in the trial court in which it asserted that a final judgment had never been entered in the case. Heritage acknowledged that notice of the judgment had been mailed on August 3, 2011, but claimed that the August 1, 2011 ruling of the trial court did not qualify as a final judgment because it did not comport with La. C.C.P. art,1918’s requirement that written reasons be set forth in a separate document from the judgment and because the court did not issue a separate ruling ordering the defendant to pay damages. Plaintiffs opposed the motion, insisting that the August 1, 2011 document entitled “Judgment” was a valid final judgment pursuant to La. C.C.P. art.1918. At the ] conclusion of the hearing held on the motion on April 16, 2012, the trial court ruled that the August 1, 2011 ruling constituted a “judgment.”

Heritage then filed a notice of intent to apply for a supervisory writ, and the trial court initially ordered Heritage to file its application with this Court on or before May 17, 2012. Upon Heritage’s May 22, 2012 motion seeking to clarify the order relating to its writ or for an extension of time, the trial court ordered that the writ application be filed with this Court by May 22, 2012. The request for an extension of time in which to file the writ application was not filed within the time set in the district court’s original return date order, and on that basis, this Court did not consider Heritage’s application that was filed on May 21, 2012. Conley v. Plantation Management Company, LLC, 2012-0879 (La.App. 1st Cir.9/10/12) (unpublished). This Court’s action stated the following, in pertinent part:

Further, without a copy of the transcript or the minutes of the April 16, 2012 hearing on relator’s Motion to Enter Judgment, it is impossible for this Court to determine whether the court ordered, or a party requested, that the ruling be reduced to writing. See La. C.C.P. art. 1914. Accordingly, this Court is unable to determine if the application was timely filed.
In the event relator seeks to file a new application with this Court, it must contain all pertinent documentation, including documentation showing that the original application was timely filed, and must comply with Uniform Rules of Louisiana Courts of Appeal, Rule 2-12.2. Any new application must be filed on or before September 26, 2012, and must contain a copy of this ruling.

Heritage did not file another writ application.

On May 24, 2012, the trial court signed a judgment denying Heritage’s motion to enter judgment on the basis that a judgment had previously been entered in this matter. On June 14, 2012, Heritage filed a petition for a suspensive appeal in the trial court seeking to appeal the judgment signed on August 1, 2011, awarding damages in favor of plaintiffs, and the judgment signed on May 24, 2012, denying the motion to enter a judgment. The trial court’s order of appeal granted an appeal from the judgment signed on May 24, 2012, but not from the | fiAugust 1, 2011 judgment, finding the petition for an appeal of that judgment to be untimely.

In this appeal, Heritage assigned as error the trial court’s failure to enter a final judgment and the trial court’s denial of its motion for the entry of a final judgment. Heritage argued that no final judgment on the merits had been entered in this case from which an appeal could be taken to this court and asked this court to remand the case to the trial court with instructions to enter a final judgment. Heritage did not brief the merits of the trial court’s ruling, asserting that this court lacked subject matter jurisdiction at this time to review the trial court’s ruling on the merits. Heritage asserted alternatively that if this court concluded that jurisdiction to review the merits of the case existed, it would supplement the record to include the trial transcript, and this court should permit Heritage to then file a brief to assign errors made by the trial court in its ruling on the merits of the case.

After the lodging of the record, this Court issued a rule to show cause order which stated that Heritage’s petition for suspensive appeal appeared to be untimely based on the following facts: 1) the trial court signed a judgment on August 1, 2011; 2) the notice of this judgment was issued on August 8, 2011; and 3) Heritage filed a petition for suspensive appeal on June 14, 2012. On January 28, 2013, another panel of this court referred the rule to show cause as to whether this appeal should be dismissed as untimely to the panel to which the appeal was assigned. Conley v. Plantation Management Company, LLC, 2012-1510 (La.App. 1st Cir.1/28/13) (unpublished).

| ^DISCUSSION

It is undisputed that the August 1, 2011 judgment signed by the trial court was not appealed within the delay periods set forth in the Code of Civil Procedure. Whether this court has jurisdiction to entertain an appeal of that judgment depends on whether the August 1, 2011 judgment is a final, appealable judgment. Heritage contends that the trial court’s August 1, 2011 action is merely a “ruling” that does not fulfill the requirements for a final judgment. It contends that the judgment lacks decretal language because it does not order the defendants to pay any amount of damages to the plaintiffs and it does not contain language indicating that the court, by signing the ruling, was signing a final judgment. Heritage insists that the language of the August 1, 2011 ruling was not sufficient to place it on notice that it was a final judgment. Additionally, Heritage contends that the August 1, 2011 ruling is not a final judgment because it failed to comply with La. C.C.P. art.l918’s mandate that “when written reasons for the judgment are assigned, they shall be set out in an opinion separate from the judgment.” Heritage contends that since a final judgment was not entered in the case, the appeal delays did not commence upon the signing of the August 1, 2011 ruling and the issuance of the notice of judgment. Rather, it submits, the earliest date that the appeal delays could have begun to run was May 24, 2012, when the court entered judgment denying the motion to enter judgment and declaring the August 1, 2011 ruling to be a final judgment. Therefore, it claims, its petition for suspensive appeal, filed on June 14, 2012, was timely.

In response, plaintiffs contend that Heritage’s appeal is untimely and is barred by the doctrine of res judicata. They maintain that the August 1, 2011 judgment is a final judgment because: (1) it was identified by appropriate language as a “JUDGMENT” by its captioned designation; (2) it included appropriate decretal language due to its “finding] in favor of plaintiff’ and it awarded ^damages and interest to plaintiff; 3) the dollar amount awarded was specific in that the judgment awarded “$35,000.00 plus judicial interest from the date of the demand”; and 4) it was signed and dated.

Decretal Language

Louisiana Code of Civil Procedure article 1918 states that “A final judgment shall be identified as such by appropriate language.” It is well settled that a final judgment must be precise, definite, and certain. Vanderbrook v. Coachmen Industries, Inc., 2001-0809 (La.App. 1st Cir.5/10/02), 818 So.2d 906, 913. A final judgment must contain decretal language. Carter v. Williamson Eye Center, 2001-2016 (La.App. 1st Cir.11/27/02), 887 So.2d 43, 44. Generally, it must name the party in favor of whom the ruling is ordered, the party against whom the ruling is ordered, and the relief that is granted or denied. Id. The specific relief granted should be determinable from the judgment without reference to an extrinsic source such as pleadings or reasons for judgment. Vanderbrook, 2001-0809 at pp. 11-12, 818 So.2d at 913. The failure to name the defendant or defendants against whom the judgment is rendered in a case with multiple defendants makes the judgment fatally defective because one cannot discern from its face against whom it may be enforced. Jenkins v. Recovery Technology Investors, 2002-1788 (La.App. 1st Cir.6/27/03), 858 So.2d 598, 600. However, this court has found a judgment to be valid where, although it did not refer to the plaintiff by name, there was only one plaintiff involved in the case and the plaintiffs name was discernible from the caption of the judgment. Hammonds v. Reliance Ins. Co., 2006-0540 (La.App. 1st Cir.12/28/06), 2006 WL 3813719. Because only judgments are made executory in Louisiana courts, La. C.C.P. art. 2781 et seq., to be legally enforceable as a valid judgment, a third person should be able to determine from the judgment the party cast and the amount owed | ^without reference to other documents in the record. See Vanderbrook, 818 So.2d at 913-14.

We find that the August 1, 2011 judgment contains sufficient decretal language to constitute a final judgment in that it determines the rights of the parties and awards plaintiffs a precise dollar amount, i.e., $35,000.00 plus judicial interest from the date of demand. The plaintiffs are all identified in the written reasons. Although the decretal language does not expressly name Heritage as the defendant cast in judgment, Heritage was the only remaining defendant in the litigation, and Heritage was identified as the defendant in the caption of the judgment and in the listing of counsel of record present in court at the beginning of the judgment. Thus, a third person could determine from reading the judgment that Heritage is the party cast in judgment and the amount owed by Heritage without reference to other documents in the record.

Form Requirement

The three-page document signed on August 1, 2011, contains the trial court’s written reasons for judgment. While it is true that La. C.C.P. art 1918 states that “[w]hen written reasons for the judgment are assigned, they shall, be set out in an opinion separate from the judgment,” it is well settled that this portion of the article is merely precatory and does not render a judgment, identified as such and complete in every respect, invalid simply because it includes written reasons in the body of the document. Hinchman v. International Brotherhood of Electrical Workers, Local Union No. 130, 292 So.2d 717, 720 (La.1974)(holding that a document entitled “judgment” which also contained decretal language was not invalid merely because the trial judge included written reasons in the body of the document, noting that the document was labeled a judgment, included a decree, and determined the rights of the parties and awarded the relief to which they were entitled); ASP Enterprises, Inc. v. Guillory, 2008-2235 (La.App.fl 1st Cir.9/11/09) 22 So.3d 964, 968 n. 1, writ denied, 2009-2464 (La.1/29/10), 25 So.3d 834; Hammonds, 2006-0540 at p. 1 (wherein this court determined that the judgment, which contained reasons for judgment, also contained the necessary essentials to determine the rights of the parties and the relief awarded and thus it was not necessary to remand for entry of a new judgment); Country Club of Louisiana Property Owners Ass’n, Inc. v. Domier, 96-0898 (La.App. 1st Cir.2/14/97), 691 So.2d 142, 149 (wherein although the judgment included enumerated findings of fact, this court found no need to remand for entry of a new judgment).

The August 1, 2011 judgment is entitled “JUDGMENT” and a notice of that judgment was mailed to counsel of record. We have already concluded that the August 1, 2011 judgment contains sufficient decretal language; therefore, we conclude that the inclusion of reasons in the judgment did not render it fatally defective. Accordingly, we hold that the August 1, 2011 judgment, which was captioned as such, mailed to the parties and identified as the judgment of the court, and which identifies the parties, finds in favor of the plaintiffs, awards damages in the amount of $35,000.00, casts the defendants for costs, and is signed and dated by the trial court, is a final, appealable judgment. Consequently, the appeal delays began to run when Heritage received notice of the judgment on August 3, 2011. The judgment became final and definitive when the appeal delays lapsed on October 11, 2011, and this court has no jurisdiction to modify, revise, or reverse that judgment. See Batson v. South Louisiana Medical Center, 2006-1998 (La.App. 1st Cir.6/13/07), 965 So.2d 890, 896, wit denied, 2007-1479 (La.10/5/07), 964 So.2d 945. Therefore, this court lacks appellate jurisdiction to review the August 1, 2011 judgment and we dismiss the appeal from that judgment.

^CONCLUSION

Based on the foregoing, the appeal is dismissed. All costs of this appeal are assessed to appellants, Plantation Management Company, L.L.C., d/b/a Heritage Healthcare Center-Hammond.

APPEAL DISMISSED.

PARRO, J., concurs.

      . Heritage posted an appeal bond in the sum of $52,274.00.

      . While the record has been supplemented to include the trial transcript, Heritage has not filed a supplemental brief assigning error to the trial court’s finding of a breach of care on its part or the award of damages to the plaintiffs.

      . This determination renders the appeal of the trial court's May 24, 2012 judgment moot. That appeal is also dismissed.