author: GARRETT, J.

text:
    Lauri BOWDEN, Plaintiff-Appellant v. Robert Eli BROWN and Jessica Inell Brown, Defendants-Appellees.
    No. 48,268-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 15, 2013.

      Ross E. Shacklette, Bossier City, LA, for Plaintiff-Appellant.
    Robert Eli Brown, In Proper Person.
    Before CARAWAY, PITMAN and GARRETT, JJ.
   GARRETT, J.

LLauri Bowden, the maternal grandmother, appeals a trial court judgment awarding sole custody of her daughter’s four children to their father, Robert Eli Brown. We affirm the trial court judgment.

PROCEDURAL BACKGROUND

This is an unusual custody case because Robert Eli Brown and Jessica Inell Brown, the parents of the four children at issue, are still legally married. There was no proceeding for divorce between the parents to trigger the Louisiana Civil Code articles pertaining to child custody determinations under La. C.C. arts. 131, et seq., when this litigation began. The initial pleading that was filed in the 26th Judicial District Court on March 26, 2012, in the matter entitled Lauri Bowden v. Robert Eli Brown and Jessica Inell Brown, was captioned “Joint Motion for Custody.” Although the suit caption referred to a plaintiff and two defendants, all three parties were “appearers.” The one-page pleading contained no information about the marital status of the parents or any other background information. The pleading merely recited that the three appearers “feel that it is in the best interest of the minor children” that custody be awarded to the grandmother subject t.o liberal visitation rights by the mother and the father. There was no service or citation and no rule date was requested as is the customary practice in custody matters. There are no court minutes for March 26, 2012. The record does not reflect that any of the parties came to court on March 26, 2012, when the grandmother was granted custody. Counsel for the grandmother confirmed at oral argument that none of the -^parties were in court when the judgment was presented to the judge. Although the grandmother was represented by counsel, the Browns were not; they signed the pleadings in proper person. Since none of the parties appeared in court, there obviously was no evidence adduced, or any inquiry made by the court concerning the reasons underlying the joint motion.

Problems, of course, arose immediately. On May 7, 2012, Mr. Brown, again appearing in proper person, filed in the same docket number but now styled Robert Eli Brown v. Lauri Bowden, a rule for contempt against his mother-in-law, alleging he had not been allowed to see his children. Later, on July 12, 2012, now represented by counsel, Mr. Brown filed a “Motion to Modify Custody.” This matter was now captioned Robert Eli Brown v. Lauri Bowden and Jessica Inell Brown. At this juncture, there were multiple proceedings pending in district court, juvenile court and criminal court involving the various parties who were involved in the lives of the four children. After a contested three-day trial in district court, the trial court awarded sole custody to the father subject to certain conditions. As set forth above, the maternal grandmother has appealed. Although Mrs. Brown was present during the contested custody case, she has not appealed from the ruling.

FACTUAL BACKGROUND

The Browns have four children — three sons who are currently ages 10, four and two, and a daughter who is now eight years old. The record suggests that the couple became parents while still teenagers. During some of their marriage, the Browns lived in the same household with her mother, |3Mrs. Bowden. One notable exception was a period when Mrs. Bowden was incarcerated in Texas, apparently for mail fraud.

The couple separated in August 2011. Mr. Brown moved in with his mother while Mrs. Brown and the children remained in the mobile home with Mrs. Bowden and her boyfriend, William Debord; Mr. De-bord’s daughter, Chanda Debord; and Chanda’s young son and daughter. Mr. Debord had legal custody of Chanda’s children. The residence is apparently owned by Mr. Debord. At various times, Jami Pangle, Mrs. Bowden’s other daughter, also lived there.

In about October of 2011, Mrs. Brown and the four children moved to Texas where they lived with her boyfriend, Ernie Mendoza, a convicted felon. While in Texas, the two oldest children were not enrolled in school. After approximately a month, Mrs. Brown sent the children back to Louisiana to live with her mother. In January 2012, Mrs. Brown returned and moved back in with her mother and the children. As set forth above, on March 26, 2012, the “Joint Motion for Custody” was filed and the judgment was signed that same day.

On May 7, 2012, Mr. Brown, in proper person, filed the rule for contempt against Mrs. Bowden for noncompliance with the visitation schedule. The suit was now captioned Robert Eli Brown v. Lauri Bowden. Mrs. Brown was not named as a party. Mr. Brown alleged that Mrs. Bowden had refused to allow him to visit with his children. The testimony adduced at the custody hearing indicates that Mrs. Bowden thwarted Mr. Brown’s efforts to see his children and his parents’ efforts to see their grandchildren.

To further complicate matters, Mr. Brown’s mother, Sheila Taylor, reported suspected physical abuse of Mr. Debord’s granddaughter, who lived in the same household as the Brown children. Mrs. Taylor had repeatedly observed injuries to the child such as a busted lip, braises and burns. When she questioned Mrs. Bow-den about these injuries, she received unsatisfactory explanations. Following an investigation, the child, who was approximately 15 months old, and her four-year-old brother were taken into protective custody by the authorities. The Department of Children and Family Services discovered that Mrs. Bowden, an alleged perpetrator of the child’s injuries, had legal custody of the Brown children. The Brown children were removed from Mrs. Bowden’s home pursuant to an instanter removal order issued on May 9, 2012, by the juvenile court judge. They remained in foster care for more than two months.

On July 12, 2012, Mr. Brown, now represented by counsel, filed the instant Motion to Modify Custody in which he alleged significant changes in circumstances since the March 2012 judgment warranting an award of sole custody to him. In addition to the removal of the children pursuant to the instanter order, Mr. Brown also alleged that: (1) on June 21, 2012, Mrs. Bowden, Mrs. Brown and Mr. Debord had been charged with second degree | scruelty to juveniles in criminal court; (2) on July 9, 2012, it was determined in juvenile court that the Brown children could be returned to Mrs. Bowden pursuant to an Informal Adjustment Agreement because they were not the injured children in the Debord children protective custody matter; and (3) the parties were set to return to juvenile court on July 23, 2012, to sign that agreement, which would prohibit the children from being around Mr. Debord, allow Mrs. Brown only supervised visitation and allow Mr. Brown alternate weekend visitation. Mr. Brown also contended that Mrs. Bowden coerced him into signing the original March 2012 judgment as she had represented that it was only a temporary measure to protect the children from their mother removing them from the state again. He also asserted that Mrs. Bowden had a history of using drugs, committing crimes such as theft, and trying to obtain custody of other people’s children.

The custody hearing in district court began on July 19, 2012, and continued on September 27 and 28, 2012. The trial court noted that the juvenile court was pretermitting any further action on the proceedings in juvenile court due to the pending custody case being handled in district court. The sordid testimony detailed extensive drug use and drug distribution by most of the people involved with the care of the Brown children. Mrs. Bow-den’s own daughters testified about their mother’s drug use, drug sales, and physical abuse of Mr. Debord’s granddaughter. Even | f,the testimony of the grandmother’s employer — which was surely intended to support the grandmother’s position — digressed into an embarrassing recitation of the witness’ own recent drug proclivities. The testimony also detailed extensive criminal activity together with incriminating Facebook postings. Almost everyone involved with the children was in an adulterous relationship. At the conclusion of the evidence, the trial court noted that essentially everyone who testified — with the exception of Mr. Brown’s parents and stepmother — was “either a drug user or a drug dealer or both.” The trial court decreed that it was time for the Brown children to get away from “that type of lifestyle” and granted sole custody to their father. In ruling, the court specifically found that it was not in the best interest of the Brown children to remain in their current environment with their maternal grandmother and that their only chance for stability was their father with assistance from his parents and stepparents. Mr. Brown was ordered to live with the children at the residence of one of his parents.

The trial court further ordered that all of the parties were to refrain from using drugs, smoking, or being intoxicated around the children. Ernie Mendoza was banned from being around the children. Mrs. Brown was given supervised visitation at the homes of the paternal grandparents. Mrs. Bowden was granted visitation the third weekend of each month, four days at Christmas and spring break, and two nonconsecutive weeks in the summer. She was also allowed reasonable telephone contact with the children. Costs were assessed one-half each to Mrs. Bowden and Mr. Brown, and the contempt rule against Mrs. Bowden was denied.

^CUSTODY AWARD TO FATHER

In several assignments of error, Mrs. Bowden argues that the trial court erred in awarding sole custody to the father.

Law

As mentioned above, the parents of the children are still legally married to each other and it is debatable whether the grandmother ever had the right to institute any court proceedings in district court. It would appear that the matter should have been handled in juvenile court utilizing the Louisiana Children’s Code provisions pertaining to “Voluntary Transfer of Custody.” (See La. Ch. C. arts. 1510, et seq.) Had the matter been handled in juvenile court, all of the procedural safeguards contained in the Louisiana Children’s Code would have been followed to establish that the parents were “knowingly and voluntarily” transferring custody. All of the forms deemed necessary by the legislature would have been filled out and, unless specifically waived by the court, a formal hearing would have been held. If a parent later revoked consent to the transfer, another hearing would have been held and the juvenile court would make its determination in the “best interests of the child” after considering:

(1) The length of the parent/child separation.
(2) The current fitness of the parent.
(3) The frequency of contact between the parent and the child during the separation.
(4) The efforts made by the parent to exercise parental responsibilities during the separation, including support.
(5) The terms and conditions of the judgment. (See La. Ch. C. art. 1523.)

However, no one ever questioned where this matter should have been handled, or what laws and procedures should have been utilized. The trial 18court judge who had to preside over the three-day custody trial was presented with a “fait accompli” and was left with no alternative but to apply the Louisiana Civil Code articles on custody and the jurisprudence dealing with “parents versus nonparents” litigation to resolve this matter.

It is well settled in our statutory and jurisprudential law that the paramount consideration in any determination of child custody is the best interest of the child. La. C.C. art. 131; Evans v. Lungrin, 97-0541 (La.2/6/98), 708 So.2d 731; Corral v. Corral, 47,294 (La.App.2d Cir.6/13/12), 93 So.3d 793.

When the parent competes with a nonparent of the child, the parent’s right to custody is superior unless the parent is unable or unfit, having forfeited parental rights. Jones v. Coleman, 44,543 (La.App.2d Cir.7/15/09), 18 So.3d 153. If an award of joint custody or of sole custody to either parent would result in substantial harm to the child, the court shall award custody to another person with whom the child has been living in a wholesome and stable environment, or otherwise to any other person able to provide an adequate and stable environment. La. C.C. art. 133. “Substantial harm” in this context includes parental unfitness, neglect, abuse, and abandonment of rights. It may also encompass other circumstances, such as a prolonged separation of the child from its natural parents causing substantial harm to the child. Mills v. Wilkerson, 34,694 (La.App.2d Cir.3/26/01), 785 So.2d 69.

The trial court has vast discretion in deciding matters of child custody and visitation. Slaughter v. Slaughter, 44,056 (La.App.2d Cir.12/30/08), 1 So.3d 788. This discretion is based on the trial court’s opportunity to better evaluate the credibility of the witnesses. Slaughter, supra; Chandler v. Chandler, 45,308 (La.App.2d Cir.5/19/10), 37 So.3d 569. The trial judge, having observed the demeanor of the witnesses, is in the better position to rule on their credibility. Chandler, supra. Therefore, the trial court’s determination will not be disturbed on appeal, absent a clear showing of an abuse of discretion. Slaughter, supra.

In Jones v. Coleman, supra, this court conducted an exhaustive review of the jurisprudence involving litigation between parents and nonparents. The court then set forth the standards for a parent to reclaim a child placed in the custody of a nonparent:

In summary, we therefore hold that the initial judgment under Article 133, placing custody of the child with a nonpar-ent, is a determination of the unfitness of the parent and the fitness of the nonparent to provide an adequate and stable environment. The considered versus nonconsidered decree analysis under Evans and Bergeron does not apply for the consideration of the initial judgment’s effect in any future action for the modification of the nonparent’s custody. In any proceeding thereafter to restore custody of the child to the parent, and to thereby modify or end the nonparent’s custody, the parent shall have the burden of proof and the dual tests of Article 133 shall apply. First, the parent must demonstrate his rehabilitation which eliminates the “substantial harm” threat to the child which existed at the time of the initial judgment. Second, the parent must establish that the adequate and stable environment in which the child was placed with the nonparent as a result of the initial adjudication has materially changed. In the absence of such a change, the parent’s claim to modify the nonparent’s custody of the child shall not prevail, and the rehabilitation of the parent alone shall afford him only an appropriate visitation allowance under La. C.C. art. 136. [Emphasis added.]

Discussion

On appeal, Mrs. Bowden argues that the trial court erred in finding that Mr. Brown had carried his burden of proof under Jones v. Coleman, supra. In particular, she claims that he did not prove that he had “reformed” or that he could offer an adequate and stable environment for his children.

In the oral reasons for judgment, the trial court ruled that the case of Jones v. Coleman, supra, provided the applicable law, but that the Jones case was distinguishable from the matter before the court. As to the first burden of proof, the parent’s rehabilitation eliminating the “substantial harm” threat to the child which presumably existed at the time of the initial judgment, the court noted that only six months had passed between the original judgment and the conclusion of the trial. Under the circumstances of this case, the court found that Mr. Brown could not be considered legally unfit at the time of the transfer. The court found that the March 2012 document was not an acknowledgment of unfitness. To the extent that Mr. Brown had a “history,” the court noted that everyone who testified, except for members of Mr. Brown’s family, had the same issues.

As to the second burden of proof, a material change to “the adequate and stable environment in which the child was placed with the nonparent,” the court found that the environment at Mrs. Bow-den’s house was “anything but stable. It has been totally and completely unstable.” The court noted all the testimony about illegal drug activity. While unable to say who actually harmed Mr. Debord’s granddaughter, the court observed that the child was injured on Mrs. Bowden’s watch and she thus bore some responsibility. The court noted its concern of similar injury befalling the Brown children if they remained in Mrs. Bowden’s custody.

In We note, as did the trial court, that the situation in the instant case is wholly different and distinguishable from what occurred in Jones v. Coleman, supra. In that case, young, unmarried parents surrendered custody of their son to the maternal grandparents shortly after his birth. When the child was seven months old, the grandparents filed for custody, asserting that an award of custody to the parents would result in substantial harm to the child, and a consent judgment in their favor was subsequently rendered. Shortly after the child’s third birthday, the father sought to change custody. After another court appearance, another consent judgment was rendered which expanded the father’s visitation rights. When the child was four and a half years old, the father sought primary custody of the boy. The trial court further expanded the father’s visitation, but found it was in the child’s best interest to remain in the custody of his grandparents who had raised him virtually from birth.

In the instant case, the Brown children lived with their parents from birth until the parents separated in August of 2011. Although the family did live in the same household as Mrs. Bowden for some of the time, the testimony demonstrates that the children were in their parents’ care. The testimony also indicates that at some point the family lived with Mr. Brown’s mother. After the separation, the children initially remained with their mother in the same household as Mrs. Bowden before moving to Texas. After a month, the mother then sent the children back to Mrs. Bowden’s home. Several months later, the mother rejoined them. In the meantime, the father visited the children and supplied either cash or material [ 12items they required. Mrs. Bowden persuaded the parents to sign documents that resulted in the rendition of a judgment granting her custody without any court appearances or procedural safeguards. The petition requesting custody did not make any allegation that the children would be at risk of “substantial harm” if the parents had custody. Shortly thereafter, the children were removed from Mrs. Bowden’s household due to injuries sustained by another child residing there and put in foster care. Mrs. Brown and Mrs. Bowden were among the parties suspected of harming that child and criminal charges were filed. After several months in foster care, the children were placed back with Mrs. Bowden under an agreement brokered in juvenile court. The instant custody hearing commenced within weeks of the children’s return from foster care.

In this case, the trial court ruled that Mr. Brown had the burden of proof to support a change in custody and that the burden had been carried. The trial court correctly ruled there was no initial finding of unfitness on Mr. Brown’s part as a result of the March 2012 judgment. The court also correctly ruled that the children were not in a stable environment with Mrs. Bowden. Accordingly, the court correctly found that Mr. Brown carried the burden of proof necessary to divest custody from Mrs. Bowden under the circumstances of this case.

The best interest of the child is always the paramount consideration in deciding custody. After three days of testimony replete with adultery, use hsand distribution of an assortment of illegal drugs, criminal convictions and all-around poor judgment exercised by the various caregivers to the Brown children, the trial court concluded that the best interest of these children dictated that they be removed from their current environment. Cognizant that Mr. Brown’s parents and their respective spouses were not tainted by any drug allegations and that they had signified their great desire to assist Mr. Brown by providing housing and child care assistance should he be granted custody, the trial court found that Mr. Brown was the best chance the children had for a stable and adequate environment. The trial court provided lengthy and cogent reasons for the ruling on the record. Based upon this record, we find no manifest error in the trial court’s decision.

La. C.C. art. 134 Factors

Mrs. Bowden further claims that the trial court erred in applying the factors set forth in La. C.C. art. 134. She contends that the trial court should have found that virtually all of the factors favored her.

La. C.C. art. 134 states:

The court shall consider all relevant factors in determining the best interest of the child. Such factors may include:
(1) The love, affection, and other emotional ties between each party and the child.
(2) The capacity and disposition of each party to give the child love, affection, and spiritual guidance and to continue the education and rearing of the child.
(3) The capacity and disposition of each party to provide the child with food, clothing, medical care, and other material needs.
(4) The length of time the child has lived in a stable, adequate environment, and the desirability of maintaining continuity of that environment.
|h(5) The permanence, as a family unit, of the existing or proposed custodial home or homes.
(6) The moral fitness of each party, insofar as it affects the welfare of the child.
(7) The mental and physical health of each party.
(8) The home, school, and community history of the child.
(9) The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference.
(10) The willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party.
(11) The distance between the respective residences of the parties.
(12) The responsibility for the care and rearing of the child previously exercised by each party.

The trial court is not bound to make a mechanical evaluation of all of the statutory factors listed in La. C.C. art. 134, but should decide each case on its own facts in light of those factors. Corral v. Corral, supra. These factors are not exclusive, but are provided as a guide to the court, and the relative weight given to each factor is left to the discretion of the trial court. Corral v. Corral, supra.

While the trial court found that the eighth factor (home, school and community history of child) and the twelfth factor (responsibility for the care and rearing of the child previously exercised) were in Mrs. Bowden’s favor, it concluded that they were outweighed by the fourth factor (the length of time the child has lived in a stable, adequate environment, and the desirability of maintaining continuity of that environment) and the fifth factor (the permanence, as a family unit, of the existing or proposed ^custodial home or homes), which were in Mr. Brown’s favor. As to the tenth factor (the willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party), the trial court sadly noted: “I’m afraid all these relationships after this three-day trial and all the finger pointing and whatever these relationships are probably forever lost. I hope not, but we’ll see.” The court specifically found that it was not in the best interest of the Brown children to remain in their current environment and that their only chance for stability was their father with assistance from his parents and stepparents.

We find no abuse of the trial court’s discretion in its evaluation of the relevant La. C.C. art. 134 factors. The trial court’s conclusion that the children’s best interests were not served by leaving them in their current environment is fully supported by the record.

EVIDENTIARY ISSUES

Mrs. Bowden argues that the trial court erred in admitting evidence of events that occurred prior to the March 2012 judgment that the father was seeking to modify. Specifically, the trial court ruled that it would allow the father to “go back a reasonable amount of time” in presenting evidence.

Evidence of incidents prior to entry of a stipulated judgment may not be relevant to prove a change of circumstances, but may nevertheless remain relevant on the issue of best interest of the child. The trial court should not exclude evidence in a custody modification proceeding if that evidence is relevant and material to an issue which the parties have not had a full and | ififair opportunity to litigate. Verret v. Verret, 34,982 (La.App.2d Cir.5/9/01), 786 So.2d 944; Diamand v. Davis, 47,332 (La.App.2d Cir.6/27/12), 94 So.3d 1027, writ denied, 2012-1922 (La.9/12/12), 97 So.3d 1005.

As explained above, the March 2012 judgment came into being through unusual circumstances. The Browns testified at the custody trial that Mrs. Bowden manipulated each of them into signing papers to give custody of their children to her by presenting it as a mean of thwarting the other parent while protecting his or her own rights to the children. Neither parent was represented by counsel and neither parent was present in court. The March 2012 judgment cannot be construed as a true consent judgment under the circumstances of this case.

We find no error in the trial court’s ruling to allow Mr. Brown to go back a “reasonable amount” of time in order to present relevant evidence pertaining to the best interest of the children which had not previously been litigated.

DE FACTO CUSTODY TO PATERNAL GRANDPARENT AND SPOUSE

Mrs. Bowden contends that the trial court’s ruling amounted to an award of custody to the paternal grandfather and his wife. She argues that, if the children are not returned to her, the case should be remanded to the trial court for a trial on whether custody should be awarded to this couple.

The trial court’s ruling gave sole custody of the children to their father. In view of the challenges that he was certain to face as a single, working parent of four young children, the court conditioned this custody |17award upon Mr. Brown accepting the assistance of his immediate family. His parents and his stepmother testified enthusiastically and in great detail about their ability and willingness to provide assistance. The trial court was keenly aware of the roles that the paternal grandparents and their respective spouses would be playing when it awarded custody to Mr. Brown. We find that no remand is necessary.

TESTIMONY AND STATEMENTS OF CHILDREN

Mrs. Bowden contends that the trial court erred in denying her request that the court interview the two oldest children, who were then ages nine and eight. In conjunction with this assignment of error, she also complains that the trial court allowed hearsay evidence from the children’s aunt, Jami Pangle, about what these two children said about bruises and burns on Mr. Debord’s granddaughter, but then disallowed hearsay testimony when Mrs. Bowden was asked whether the children wanted to visit with their father.

During Ms. Pangle’s testimony, she was asked about the injuries to Mr. Debord’s granddaughter. She began to recount statements made to her by the two oldest children on the subject. Citing the relaxed evidentiary rules in child custody cases, the trial court overruled Mrs. Bow-den’s hearsay objection to this testimony. Mrs. Bowden’s counsel then indicated that a request to allow the children to testify was forthcoming. The trial court stated that it would not allow them to testify in open court, but did not foreclose the possibility of speaking to them in chambers. On the last day of the hearing, Mrs. Bow-den requested that the trial court interview at least the |1stwo oldest children. Mr. Brown’s counsel did not object to Mrs. Bowden’s motion, but opined that it was inappropriate given the children’s ages. The trial court agreed and declined to interview the children.

Law

In child custody cases, a relaxed evidentiary standard can be used to advance the purposes of the custody proceeding. La. C.E. art. 1101 B(2); Folse v. Folse, 98-1976 (La.6/29/99), 738 So.2d 1040; Willhite v. Willhite, 44,535 (La.App.2d Cir.8/19/09), 17 So.3d 495. Clearly, the Louisiana legislature has concluded that the best interests of children are not served by strict application of the rules of evidence. Folse v. Folse, supra.

The trial court has broad discretion in deciding whether to allow the testimony of a child. Albarado v. Toler, 495 So.2d 355 (La.App. 3rd Cir.1986); Cooper v. Coper, 594 So.2d 939 (La.App. 3rd Cir.1992). The trial court may consider the reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference. La. C.C. art. 134. The purpose of the in-chambers interview is to determine the child’s preference outside the presence of the parents. Woods v. Woods, 43,182 (La.App.2d Cir.6/11/08), 987 So.2d 339, writ denied, 2008-2256 (La.11/21/08), 996 So.2d 1110.

Discussion

The testimony from Ms. Pangle about what the two oldest children told her regarding the injuries to Mr. Debord’s granddaughter was extremely brief and ultimately added little, if anything, to the overall information about the child’s injuries. Further, the court, in its reasons for ruling, 119speciftcally noted that it had no idea who actually perpetrated the physical harm suffered by the Debord grandchild. Regardless of who the actual perpetrator may have been, the trauma happened on Mrs. Bowden’s watch. This testimony pertained to an important issue in these custody proceedings — the safety of the children in Mrs. Bowden’s household. Accordingly, given the relaxed evidentiary standard in child custody cases, we find no error in the trial court’s admission of this testimony.

Additionally, there was considerable testimony about the injuries to Mr. Debord’s granddaughter from the adults who testified. Therefore, to the extent that Mrs. Bowden argues that these young children might have shed light on those injuries, we find that the trial court did not abuse its broad discretion in ruling that it would not require these children to testify in open court or to submit to an interview in the judge’s chambers.

We also find no error in the trial court ruling that sustained an objection to a question posed to Mrs. Bowden about whether the children wanted to visit their father. Due to their young ages, the preference of these children on this matter was irrelevant.

SURREBUTTAL

In another assignment, Mrs. Bow-den contends that the trial court erred in refusing to allow her to testify again after Mrs. Brown gave rebuttal testimony in which she recanted prior testimony favorable to Mrs. Bowden.

Surrebuttal by the defendant is not a matter of right, but may be allowed at the court’s discretion. La. C.C.P. art. 1632; Whittington v. American Oil Co., 508 So.2d 180 (La.App. 4th Cir.1987) writ denied, 512 So.2d 436 (La.1987).

We find no abuse of the trial court’s discretion in denying Mrs. Bowden the opportunity to testify again on surrebuttal. In denying the motion, the trial court stated it would take judicial notice that, if allowed to testify again, Mrs. Bowden would deny all of the new testimony. The court stated:

Request is denied. I will take judicial notice that your client would get up here under oath and deny every single thing that was said. And that’s what this whole thing has been. You did. You did. I did. You didn’t. Yes you did. No I didn’t. So that’s my ruling. Your objection is noted for the record.

INSTANTER ORDER AFFIDAVIT

During Mrs. Bowden’s testimony, Mr. Brown sought to impeach her with prior statements found in the affidavit supporting the instanter order which removed the children from her care. Mrs. Bow-den’s hearsay objection was overruled; the statements were read to her and she was allowed to respond to them. At the conclusion of his case, Mr. Brown moved to admit the affidavit and the instanter order. Mrs. Bowden objected again. The trial court admitted both documents, noting that they were part of the juvenile court proceedings which the instant custody case closely tracked. On appeal, Mrs. Bowden argues that the trial court erred in admitting the affidavit into evidence because it contained impermissible hearsay evidence pertaining to the allegations of abuse.

As previously noted, the evidentiary rules are relaxed in child custody cases. The trial court deemed the information relevant in order to [21understand all of the court proceedings that were pending in the different courts. However, even assuming arguendo that the trial court erred in admitting the testimony or the affidavit, the error was harmless. There was an abundance of testimony from several witnesses about the information contained in this document, i.e., the bruises and injuries to Mr. Debord’s granddaughter, the allegations of abuse, and the circumstances leading to the placement of the Brown children in foster care.

MODIFICATION OF GRANDMOTHER’S VISITATION

Following the withdrawal of his trial counsel, Mr. Brown filed a brief in this court in proper person. He requested modification of the visitation rights awai'd-ed to Mrs. Bowden by the trial court. Since he did not appeal or answer the appeal, no such modification may be made by this court. See La. C.C.P. arts.2082 and 2133; Wiltshire v. Wiltshire, 482 So.2d 902 (La.App. 2d Cir.1986).

CONCLUSION

The trial court judgment is affirmed. Costs of this appeal are assessed to the appellant, Lauri Bowden.

AFFIRMED.

      . At oral argument, Mr. Brown confirmed that he and his wife are still married.

      . Although Mr. Debord is sometimes referred to as Mrs. Bowden’s fiancé, she is still married to another man.

      . The circumstances surrounding this "Joint Motion for Custody” are highly controverted. Mr. Brown testified that Mrs. Bowden told him that she feared Mrs. Brown would remove the children from the state again and that this document would prevent such action while preserving his rights to the children. In her rebuttal testimony, Mrs. Brown stated that her mother told her that signing the papers would keep Mr. Brown from getting custody of the children and then her mother would give custody of the children back to her. Suffice it to say the circumstances surrounding the motion are unusual.

      . Drug tests taken by Mr. Brown in June of 2012 revealed no substances. Drug tests taken by Mrs. Brown in June of 2012 revealed methamphetamines.

      . Although Mrs. Brown initially gave some testimony favorable to her mother, she later recanted and corroborated the damning testimony given by her sister against their mother. However, she consistently testified that custody of the children should be awarded to her and her husband, not to Mrs. Bowden.

      . Had the initial voluntary transfer of custody been handled in juvenile court under the Louisiana Children’s Code, the determination of the "best interests of the child” would have been the focus of the hearing to revoke consent under La. Ch. C. art. 1523.


source: Caselaw Access Project

license: Public Domain

text:
    Ryan HAYGOOD, DDS and Haygood Dental Care, LLC, Plaintiffs-Appellants v. Ross H. DIES, Ross H. Dies, DDS, J. Cody Cowen, DDS and Benjamin A. Beach, DDS, a Professional Dental Limited Liability Company, Camp Morrison, C. Barry Ogden, Karen Moorhead and Dana Glorioso, Defendants-Appellees.
    Nos. 47,765-CA, 47,953-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 15, 2013.

      Ryan E. Gatti, Bossier City, LA, Harper Law Firm, Shreveport, LA, by Jerald R. Harper, Amber Huffman Watt, for Plaintiffs-Appellants Ryan Haygood, DDS and Haygood Dental Care, LLC.
    Lugenbuhl, Wheaton, Peck, Rankin & Hubbard, New Orleans, LA, by Brad E. Harrigan, Reed S. Minkin, Ronald J. Mi-ciotto, Shreveport, LA, for Defendants-Appellees Ross H. Dies, DDS, J. Cody Cowen, DDS and Benjamin A. Beach, DDS A Professional Dental LLC.
    Faircloth Law Group, LLC, Alexandria, LA, by Barbara Bell Melton, Lauren Stokes Laborde, Arthur F. Hickham, Jr., for Defendants-Appellees Camp Morrison, C. Barry Ogden, Karen Moorhead and Dana Glorioso and Louisiana State Board of Dentistry.
    Before WILLIAMS, LOLLEY and GARRETT, JJ.
   GARRETT, J.

IjThe plaintiffs, Ryan Haygood, DDS, and Haygood Dental Care, LLC, appeal from trial court rulings sustaining exceptions of prematurity filed by several of the defendants, C. Barry Ogden, Camp Morrison, Karen Moorhead, and Dana Glorioso. For the following reasons, we reverse the trial court judgments and remand the matters to the trial court for further proceedings.

FACTS

Dr. Haygood established a dental practice, Haygood Dental Care, LLC, in Shreveport in 2005. In 2006, the Louisiana State Dental Board (“Dental Board”) began receiving complaints regarding the treatment plans recommended and dental care provided by Dr. Haygood. The Dental Board instituted proceedings against Dr. Haygood and ultimately revoked his license to practice in Louisiana. Dr. Hay-good appealed that decision to the district court for Orleans Parish and ultimately, to the Louisiana Fourth Circuit Court of Appeal.

In September 2011, while the appeal of the Dental Board decision was pending, Dr. Haygood and his dental practice (hereinafter collectively referred to as “Hay-good”) filed the present suit in Caddo Parish against Dr. Ross H. Dies; Ross H. Dies, DDS, J. Cody Cowen, DDS, and Benjamin A. Beach, DDS, a Professional Dental Limited Liability Company; C. Barry Ogden; Camp Morrison; Karen Moorhead; and Dana Glorioso. Ogden was the executive director of the Dental Board at the time the complaints against Haygood were made. Morrison was a private investigator working for the | ¡¿Dental Board. Morrison enlisted the aid of Moor-head and Glorioso, dental assistants employed by other dentists, to go to Hay-good’s office posing as patients. Dr. Ross Dies was a local dentist and a competitor of Haygood who served as an expert for the Dental Board in this matter.

Haygood alleged that all of the defendants acted in concert to commit unfair trade practices, defamation, and unlawful and malicious acts against him and his practice. Haygood claimed that the defendants conspired to deprive him of good standing in the community. He asserted that the Dental Board began an investigation, but it exceeded its lawful duty, violated his due process rights, participants lost their neutrality, adjudicatory and prosecu-torial roles were mixed, and participants in the investigation violated their duties of trust and confidentiality. Haygood alleged financial loss, loss of reputation, embarrassment, humiliation, worry, and deprivation of the opportunity to practice in his hometown of Shreveport/Bossier. Hay-good sought monetary damages, including attorney fees, against the defendants and prayed for a jury trial.

In the petition, Haygood alleged that he embarked on a successful publicity campaign to grow his business. Haygood claimed that as his business grew, competing dentists lost patients. At that time, according to Haygood, false complaints were filed with various taxing authorities and anonymous Internet postings were made with false information about the practice. There were also complaints that Haygood was diagnosing and recommending unnecessary periodontal work. Hay-good maintains that | ¡¡these complaints were encouraged, if not directly solicited, by his competitors.

Haygood asserted that Ogden, the executive director of the Dental Board, and Morrison, the investigator for the Dental Board, designated Dr. Dies as an expert in the matter and sent him records for evaluation of the complaints against Haygood. Haygood claimed that Dr. Dies was a direct competitor and had developed a strong personal dislike and profound animosity toward Haygood. According to Haygood, the evaluations by Dr. Dies were filled with inaccuracies, falsehoods, exaggerations, and improper assumptions.

In addition to the complaint issued by the Dental Board against Haygood, two of Haygood’s hygienists were also charged. Haygood claimed that one of the hygienists eventually went to work for Dr. Dies and he offered her immunity for changing her testimony and testifying against Hay-good. When the hygienist went to work for another dentist, the plaintiffs allege that Dr. Dies encouraged the new dentist/employer to “probe around about Hay-good.” Haygood urged that one of Dr. Dies’ partners received confidential information regarding the investigation.

Haygood asserted that in 2008, while the Dental Board investigation was being conducted, Dr. Dies began surreptitiously to seek to buy Haygood’s practice. Haygood alleged that Dr. Dies contacted a business broker and obtained highly confidential information pertaining to the practice.

^According to Haygood, Morrison enlisted the aid of Moorhead and Glorioso to go to Haygood’s office and pose as patients. Haygood claimed that they were acting as private investigators without having a license to do so, in contravention of La. R.S. 37:3520. In an amended petition, Hay-good alleged that Moorhead and Glorioso knowingly and intentionally agreed to act in concert with other defendants to ensure, illegally, that the Dental Board’s investigation produced false evidence of misconduct by Haygood so that the Dental Board would make findings adverse as to him. He asserted that Moorhead and Glorioso made false and defamatory statements regarding the plaintiffs, intentionally presented false symptoms and histories to Haygood, and knowingly participated in and contributed to conversations with co-conspirators that breached the confidentiality of the Dental Board’s investigation and proceedings.

After a formal hearing, the Dental Board revoked Haygood’s license to practice dentistry. It issued a decision finding that he engaged in conduct intended to deceive or defraud the public by fraudulently diagnosing |Bperiodontal disease and other dental conditions, deceived individuals regarding the necessity of treatment, improperly offered discounts in exchange for patient referrals, and failed to satisfy the prevailing accepted standard of dental practice. See Haygood v. Louisiana State Bd. of Dentistry, 2011-1327 (La.App. 4th Cir.9/26/12), 101 So.3d 90, writ denied, 2012-2333 (La.12/14/12), 104 So.3d 445. Haygood appealed that decision to Orleans District Court in accordance with La. R.S. 37:786 and then to the Louisiana Fourth Circuit Court of Appeal. While all of these processes were pending, this matter was proceeding in district court in Caddo Parish.

EXCEPTIONS

In response to Haygood’s allegations in this suit, Ogden filed exceptions of prematurity and Us pendens in December 2011. He urged that the plaintiffs filed this suit in response to a decision by the Dental Board and the decision was currently the subject of multiple appeals to the civil district court for Orleans Parish and the fourth circuit. Ogden stated that the appeal and the current lawsuit center on the same operative facts and occurrences, i.e., whether the actions or omissions on the part of the defendants contributed to or resulted in the Dental Board’s decision against Haygood and whether that decision should be reversed. Ogden contended that, because administrative remedies had not been exhausted, the plaintiffs’ claims should be dismissed as premature because they were not ripe for adjudication.

| (¡After a hearing on January 19, 2012, the trial court made rulings on numerous exceptions and motions filed by the various parties. The trial court at first indicated that it did not believe that the suit was premature, but suggested that Haygood should amend the petition. The trial court deferred ruling on Ogden’s exception of prematurity. The exception was again argued on April 16, 2012. In court, the trial court indicated that it thought that certain parts might be premature, but not all. The trial court partially sustained the exception of prematurity as to Ogden, “limited to the causes of action that derived from the administrative hearing that are on appeal at this time.” The court candidly acknowledged that it “struggled” with the decision. Even though the trial court seemed to limit its ruling, the judgment that was ultimately signed on May 16, 2012, dismissed all claims against Ogden. The trial court judgment stated:

Pursuant to the January 19, 2012, hearing, this Court deferred ruling on the “Exception of Prematurity on Behalf of Defendant C. Barry Ogden” filed December 6, 2011, and invited Plaintiffs’ Counsel to amend and/or supplement the original “Petition for Damages” filed September 26, 2011, in order to address this Court’s concerns; said concerns included the clarity with respect to each and every claim by the Plaintiffs against each Defendant, including C. BARRY OGDEN, whether or not deriving from the administrative proceedings by the Louisiana State Board of Dentistry.
During the March 13, 2012, hearing, Plaintiffs’ Counsel informed this Court that he had not amended and/or supplemented the original “Petition For Damages” filed September 26, 2011.
At the April 16, 2012, hearing, this Court considered no specific claims asserted by Plaintiffs which did not derive from the administrative proceedings by the Louisiana State Board of Dentistry.
17WHEREFOBE,
IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the “Exception of Prematurity on Behalf of Defendant C. Barry Ogden” filed December 6, 2011, is granted and all related claims of Plaintiffs, RYAN HAY-GOOD and HAYGOOD DENTAL CARE, LLC, against Defendant, C. BARRY OGDEN, are dismissed at Plaintiffs’ cost.

The record reflects that on March 22, 2012, the plaintiffs had filed a “First Supplemental and Amended Petition for Damages.” This pleading was not mentioned in the judgment that was signed on May 16, 2012. This pleading included additional allegations pertaining to alleged misconduct, criminal activity, fabrication of false symptoms, and breaches of confidentiality.

On March 30, 2012, Morrison, Moor-head, and Glorioso filed numerous exceptions and motions including an exception of prematurity. They adopted by reference the exceptions previously filed by Ogden in December 2011. After a hearing on May 30, 2012, in open court, the trial court sustained their exception of prematurity. In written reasons for judgment issued on September 27, 2012, the trial court made several findings of facts. The trial court noted that, “The decision of the LSDB is currently on review before the Louisiana Court of Appeal, Fourth Circuit.” The trial court also found that:

Most, if not all, of Plaintiffs’ claims arose in whole or in part from the alleged manner the complaints were made to the LSDB; complaints were investigated by the LSDB; and/or the consequences resulting from the manner the LSDB addressed and ultimately decided said complaints.

The trial court went on to state:

Rln the above-captioned case, this Court opines that many of the substantial and necessary facts are not ripe or final for this Court to make its determination. Various factual allegations made by Plaintiffs are currently subject to appellate review, therefore, the consequences of the findings and decision of the Louisiana State Dentistry Board are not yet ripe or final.
This Court has concerns; said concerns include the clarity with respect to each and every claim by the Plaintiffs against each Defendant, including Camp Morrison, Karen Moorhead, and Dana Glorioso, as to whether or not said claims derive from the administrative proceedings by the Louisiana State Board of Dentistry. Nevertheless, Plaintiffs’ factual claims should become ripe or final after all appellant [sic] reviews have been completed.

The plaintiffs appealed the trial court judgments sustaining the exceptions of prematurity as to Ogden and as to Morrison, Moorhead, and Glorioso. This court, on its own motion, consolidated the appeals.

Although the reasons for the two trial court rulings were somewhat different, it appears that the basis for the rulings was that the matter would not be ripe or mature until the pending appellate review provided for under La. R.S. 87:786 and La. R.S. 49:965 was completed. It also appears that the trial court contemplated that a definitive answer would be forthcoming in the near future.

While the present suit was mired in exceptions at the trial court, Haygood’s appeal from the revocation of his license was concluded. In September 2012, the fourth circuit vacated the Dental Board’s decision, finding that the Dental Board’s general counsel served as both adjudicator over the disciplinary proceedings and as an advocate for the Dental Board. This violated Haygood’s due process rights to a fair hearing before an | ¡¡impartial tribunal. The fourth circuit found that the Dental Board’s decision to revoke Haygood’s license was arbitrary and capricious and reversed the trial court judgment affirming the license revocation. The matter was remanded to the Dental Board for a new hearing. See Haygood v. Louisiana State Bd. of Dentistry, supra. This ruling became final when the Louisiana Supreme Court denied writs on December 14, 2012.

On December 26, 2012, after the decision in Haygood v. Louisiana State Bd. of Dentistry, supra, was rendered, and after the supreme court denied writs, the plaintiffs filed a motion to dismiss their appeals from the sustaining of the exceptions of prematurity. The plaintiffs asserted that the trial court deemed the plaintiffs’ claims to be premature pending the resolution of the appeal of the Dental Board action revoking Haygood’s license. Now that the appeal of the decision by the Dental Board was concluded, the plaintiffs requested that their appeals be dismissed as moot, and their claims be remanded to the trial court and reinstated ab initio.

Ogden, Morrison, Moorhead, and Glorio-so filed a response maintaining that the claims against them are still premature and the appeals are not moot. They pointed out that the fourth circuit remanded the matter to the Dental Board for further consideration and adjudication. Therefore, they claimed that the administrative proceeding is still pending.

On January 31, 2013, this court issued an order denying the plaintiffs’ motion to dismiss its appeals.

I PREMATURITY

The plaintiffs argue that the trial court erred in sustaining the exceptions of prematurity in favor of Ogden, Morrison, Moorhead, and Glorioso. The plaintiffs question the correctness of the trial court’s rulings that they must exhaust administrative remedies prior to filing the present suit and that their claims are not ripe. The plaintiffs contend that the Dental Board has no jurisdiction over the claims for damages asserted here and exhaustion of administrative remedies is not a prerequisite for a damage suit.

The plaintiffs maintain that their claims against Ogden are not related solely to the investigation and proceedings before the Dental Board. According to the plaintiffs, they seek damages against Ogden, Morrison, Moorhead, and Glorioso, and all the defendants, acting in concert, for unfair trade practices, defamation, and unlawful and malicious acts in both the investigation and the manner in which the proceedings against Haygood were conducted. The plaintiffs maintain that their complaints against Ogden are based not on medical evidence adduced in the Dental Board hearing, but on irregularities in the administrative procedure and tortious conduct on Ogden’s part and in concert with the other defendants.

As to Morrison, Moorhead, and Glorioso, the plaintiffs argue that, in the present suit, they are not seeking review of the Dental Board findings. The issue here is whether the plaintiffs were damaged by the defendants’ egregious conduct and activities in investigating Haygood and instigating Dental Board proceedings against him. The plaintiffs assert that all 1 n defendants in this matter are co-conspirators and the plaintiffs seek damages for conspiring to deprive Haygood of due process, producing false evidence against him, engaging in criminal activity on behalf of the Dental Board, and participating in conversations with co-conspirators that breached the confidentiality of the Dental Board’s investigations and proceedings.

Legal Principles

The dilatory exception of prematurity is provided for in La. C.C.P. art. 926. The exception of prematurity questions whether the cause of action has matured to the point where it is ripe for judicial determination. Williamson v. Hospital Service Dist. No. 1 of Jefferson, 2004-0451 (La.12/1/04), 888 So.2d 782; Mineo v. Underwriters at Lloyds, London, 2007-0514 (La.App.4th Cir.10/22/08), 997 So.2d 187. An action will be deemed premature when it is brought before the right to enforce it has accrued. LaCoste v. Pendleton Methodist Hosp., L.L.C., 2007-0008, 2007-0016 (La.9/5/07), 966 So.2d 519. Prematurity is determined by the facts existing at the time the suit is filed. Yokem v. Sisters of Charity of the Incarnate Word, 32,402 (La.App.2d Cir.6/16/99), 742 So.2d 906.

The exception of prematurity may be utilized in cases where the applicable law has provided a procedure for a claimant to seek administrative relief before resorting to judicial action. Generally, the person aggrieved in such a case must exhaust all administrative remedies before being entitled to judicial review. Yokem v. Sisters of Charity of the Incarnate Word, supra. However, the pendency of a proceeding before an administrative agency is not determinative of whether an action filed in |12court is premature. See ANR Pipeline Co. v. Louisiana Tax Comm’n, 2002-1479 (La.7/2/03), 851 So.2d 1145.

The burden of proving prematurity is on the exceptor. Lucky v. Encana Oil & Gas, Inc., 45,413 (La.App.2d Cir.8/11/10), 46 So.3d 731. When an exception of prematurity is brought on the ground that the plaintiff has failed to exhaust his administrative remedies, once the existence of an administrative remedy is proven by the exceptor, the burden shifts to the party opposing the motion to show that he has exhausted these administrative remedies. Waggoner v. American Bank & Trust Co., 423 So.2d 794 (La.App. 4th Cir.1982).

In order to require a petitioner to first exhaust his administrative remedies, the remedies must be adequate. The burden of proof in showing the inadequacy of such a remedy is on the plaintiff. Waggoner v. American Bank & Trust Co., supra. The function of the exhaustion doctrine is to give the body whose decision is under attack an opportunity to review, supplement, and, if necessary, correct its decision. Jones v. Crow, 633 So.2d 247 (La.App. 1st Cir.1993).

Discussion

In this case, Ogden, Morrison, Moorhead, and Glorioso, claimed that the plaintiffs’ lawsuit was premature because the administrative remedies before the Dental Board, the civil district court in Orleans Parish, and the fourth circuit had not been exhausted. As the exceptors, the defendants had the burden of proving the grounds for their exception. They were required to show the existence of an administrative remedy for the claims asserted by ]1sthe plaintiffs. Ogden, Morrison, Moorhead, and Glorioso failed to carry that burden of proof.

Access to the courts is guaranteed in La. Const. Art. 1, § 22, which provides:

All courts shall be open, and every person shall have an adequate remedy by due process of law and justice, administered without denial, partiality, or unreasonable delay, for injury to him in his person, property, reputation, or other rights.

The Louisiana Constitution also provides that district courts of this state have original jurisdiction over civil and criminal matters. La. Const. Art. 5, § 16(A) provides in pertinent part:

(1) Except as otherwise authorized by this constitution or except as heretofore or hereafter provided by law for administrative agency determinations in worker’s compensation matters, a district court shall have original jurisdiction of all civil and criminal matters.

Exceptions to this constitutional provision which delegate limited judicial authority to administrative agencies are narrowly construed. An administrative agency has only the power and authority expressly granted by the constitution or statutes. Louisiana Horsemen’s Benev. & Protective Ass’n 1993 Inc. v. Fair Grounds Corp., 95-1702 (La.App. 1st Cir.4/4/96), 672 So.2d 340, writs denied, 96-1163, 96-1125 (La.6/7/96), 674 So.2d 968, 969. The exhaustion doctrine applies only when exclusive jurisdiction exists in an administrative agency and the courts have only appellate jurisdiction as opposed to original jurisdiction to review the agency determination. Capitol House Preservation Co., L.L.C. v. Perryman Consultants, Inc., 2001-2524 (La.App. 1st Cir.12/31/02), 836 So.2d 680, writs denied, 2003-0323, 2003-0324 (La.4/21/03), 841 So.2d 794, 795. The exhaustion doctrine does not apply in this case because the Dental Board never had any jurisdiction whatsoever over the damage claims raised by the plaintiffs.

Actions for money damages are within the original exclusive jurisdiction of Louisiana’s district courts. Louisiana Horsemen’s Benev. & Protective Ass’n 1993 Inc. v. Fair Grounds Corp., supra; Capitol House Preservation Co., L.L.C. v. Perryman Consultants, Inc., supra.

The constitutional article vesting district courts with original jurisdiction of civil matters does not preclude the legislature from creating administrative agencies with quasi-judicial duties, and whose decisions are subject to judicial review. “Original” and “exclusive” are terms regulating jurisdiction of cases as between the several courts established by the constitution. The terms do not preclude the exercise of jurisdiction by administrative agencies over matters which are not ripe for judicial action. See Anderson v. State, 363 So.2d 728 (La.App. 2d Cir.1978), writ denied, 364 So.2d 600 (La.1978).

The legislature has provided that the Dental Board has the power to hear and decide only certain matters regarding the licensing and regulation of the practice of dentistry in this state. These statutes are found in La. R.S. 37:751, et seq. The Louisiana Board of Dentistry is established in La. R.S. 37:753 and the powers and duties of the Dental Board are set forth in La. R.S. 37:760. These include conducting hearings and determining whether to revoke, limit, or suspend a license granted by the Dental Board, impose a lififine against any person licensed by the Dental Board, and investigate complaints of illegal practice or violation of the provisions relating to dentists, when evidence is presented to the Dental Board.

Causes for nonissuanee, suspension, revocation, or imposition of restriction of a dental license are set forth in La. R.S. 37:776.

117The power of the Dental Board to hear and adjudicate claims against dentists is set forth in La. R.S. 37:778 which provides that:

The board shall hear and determine all charges against any licensed dentist, licensed dental hygienist, or any person practicing dentistry as defined in R.S. 37:751 for violation of any of the provisions of this Chapter. It may in all cases suspend or revoke the license and reinstate any license if suspended or revoked.

Judicial review of an adjudication by the Dental Board by the district court for the parish of Orleans is governed by La. R.S. 37:786 which provides in pertinent part:

A.(l) Where the board, whether through a disciplinary committee or the entire board, renders a decision in an administrative adjudication, the party aggrieved by it may resort to the civil district court for the parish of Orleans for judicial review. Any such appeals shall be filed in the court in the same manner as original suits are instituted therein. A preliminary, procedural, or intermediate agency action or ruling is immediately reviewable if review of the final agency decision would not provide an adequate remedy and would inflict irreparable injury.
|1SC. All proceedings in the civil district court for the parish of Orleans and appellate courts arising under this Section are civil in nature and shall be heard summarily by the court without a jury, shall take precedence over other civil cases, and shall be tried in chambers or in open court, in and out of term.
H. The review shall be conducted by the court without a jury and shall be confined to the record. In cases of alleged irregularities in procedure before the agency, not shown in the record, proof thereon may be taken in the court. The court, upon request, shall hear oral argument and receive written briefs.
I. The court may affirm the decision of the board or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the party seeking judicial review have been prejudiced because the administrative tribunal’s findings, inferences, conclusions, or decisions are:
(1) In violation of constitutional or statutory provisions;
(2) In excess of the statutory authority of the agency;
(3) Made upon unlawful procedure;
(4) Affected by other error of law;
(5) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion; or
(6) Not supported and sustainable by clear and convincing evidence as determined by the reviewing court. In the application of this rule, the court shall make its own evaluation of the record reviewed in its entirety upon judicial review. In the application of the rule, where the agency has the opportunity to judge the credibility of witnesses by first-hand observation of demeanor on the witness stand that the reviewing court does not, due regard shall be given to the agency’s determination of credibility issues.

11sReview by the fourth circuit is governed by La. R.S. 49:965 which provides:

An aggrieved party may obtain a review of any final judgment of the district court by appeal to the appropriate circuit court of appeal. The appeal shall be taken as in other civil cases.

The matters that may be considered by the Dental Board and the reviewing courts in the administrative proceedings are specifically set forth in the statutes and are limited to licensing and regulating the practice of dentistry in Louisiana. The Dental Board and the reviewing courts simply do not have the authority to adjudicate the tort claims raised by the plaintiffs in the present suit for defamation, unfair and deceptive trade practices, unlawful and malicious acts, and civil conspiracy or to award monetary damages. Further, none of the exceptors are parties to the Dental Board proceedings.

In the present case, the plaintiffs seek a jury trial and monetary damages against the defendants for alleged egregious and tortious conduct which damaged the plaintiffs. Although the proceedings to revoke Haygood’s dental license and the damage suit are intertwined, the plaintiffs’ suit encompasses matters which go far beyond the licensure issue. The trial court’s actions in sustaining the exceptions of prematurity were in error and must be reversed.

CONCLUSION

For the reasons stated above, we reverse the trial court decisions sustaining exceptions of prematurity and remand the matters to the trial Lncourt for further proceedings. All costs in this court are assessed to the defendants, C. Barry Ogden, Camp Morrison, Karen Moorhead, and Dana Glorioso.

REVERSED AND REMANDED.

      . The facts are based upon allegations in the plaintiffs’ petition.

      . La. R.S. 37:3520 provides in part:
      A. It shall be unlawful for any person knowingly to commit any of the following acts:
      (1) Provide contract or private investigator service without possessing a valid license.
      (2) Employ an individual to perform the duties of a private investigator who is not the holder of a valid registration card.
      (3) Designate an individual as other than a private investigator to circumvent the requirements of this Chapter.
      (4) Knowingly make any false statement or material omission in any application filed with the board.
      (5) Falsely represent that a person is the holder of a valid license or registration.
      (6) Violate any provision of this Chapter or any rule or regulation of the board.

      . The trial court denied exceptions of lis pendens filed by Ogden and by Morrison, Moorhead, and Glorioso. They filed writ applications with this court. Ogden's writ application was denied March 29, 2012. The application of Morrison, Moorhead, and Glo-rioso was denied August 9, 2012.

        . At the time the two exceptions were argued, the trial court and the litigants were unaware that the fourth circuit was in the process of reversing the Dental Board's ruling due to due process violations and would remand the matter to the Dental Board to begin anew.

      . La. R.S. 37:776 provides in pertinent part:
      A. The board may refuse to issue or may suspend or revoke any license or permit or impose probationary or other limits or restrictions on any dental license or permit issued under this Chapter for any of the following reasons:
      (1) Affliction with a contagious or infectious disease.
      (2) Conviction of a crime or entry of a plea of guilty or nolo contendere to a criminal charge.
      (3) Fraud, deceit, or perjury in obtaining any diploma, license, or permit issued under the provisions of this Chapter.
      (4) Providing false testimony before the board or in any judicial proceeding.
      (5) Habitual indulgence in the use of drugs, narcotics, or intoxicating liquors.
      (6) Prescribing, dispensing, or administering habit-forming or other legally controlled substances in other than a legal or legitimate manner.
      (7) Professional or dental incompetency.
      (8) Dental practice which fails to satisfy the prevailing acceptable standards of dental practice in this state.
      (9)(a) Division of fees or other remuneration or consideration with any person not licensed to practice dentistry in Louisiana, or an agreement to divide and share fees received for dental services with any non-dentists in return for referral of patients to the licensed dentists, whether or not the patient or legal representative is aware of the arrangement. However, this Paragraph shall not forbid dentists licensed in Louisiana from practicing in a partnership or professional corporation and sharing professional fees or forbid a dentist licensed in Louisiana from employing another dentist licensed in Louisiana. In addition, no dentist licensed in Louisiana shall share professional fees with a dentist whose license is either suspended or revoked during said period of suspension or revocation.

        (10)(a) Employing, procuring, inducing, aiding, or abetting a person not licensed or registered as a dentist to engage in the practice of dentistry or to possess an ownership interest of any kind in a dental practice, but the person practiced upon shall not be an accomplice, employer, procurer, inducer, aider, or abetter within the meaning of this provision.

      (11) Employing unlicensed persons to perform work which under this Chapter can be done only by persons licensed to practice dentistry or dental hygiene in this state.
      (12) Making any misrepresentations or false promises, directly or indirectly, to influence, persuade, or induce dental patronage.
      (13) Professional connection or association with, or lending his name to, another for the illegal practice of dentistry by another, or professional connection or association with any person holding himself out in any manner contrary to this Chapter.
      (14) Practicing under any name other than that which appears on the license or renewal certificate or which is authorized under Chapter 11 of Title 12 of the Louisiana Revised Statutes of 1950, relating to professional dental corporations.
      (15) Unprofessional conduct as defined in R.S. 37:775.
      (16) Any conduct intended to deceive or defraud the public.
      (17) Conduct which disqualifies the licensee to practice dentistry with safety to the public, including inability to practice dentistry with reasonable skill or safety to patients because of mental illness or deficiency or physical illness, including but not limited to deterioration through the aging process or loss of motor skills.
      (18) The refusal of a licensing authority of another state to issue or renew a license, permit, or certificate to practice dentistry in that state, or the revocation, suspension, or other restriction imposed upon a license, permit, or certificate issued by such licensing authority which prevents or restricts practice in that state.
      (19) Employing solicitors or subsidizing anyone, or paying or presenting any person money or anything of value for the purpose of securing patients, except as allowed by R.S. 37:775.
      (20) Refusing to submit to the examinations and inquiry of medical physicians appointed or designated by the board to inquire into the dentist’s physical and mental fitness and ability to practice dentistry with reasonable skill and safety to patients, or following submission to evaluation, failing to comply with the orders or recommendations of said examining physicians.
      (21) Making or submitting false or deceptive claims to any patient, insurance company, or indemnity association, company, individual, or governmental authority for the purpose of obtaining monetary compensation for services rendered.
      (22) Immoral conduct in exercising the privileges provided for by license or permit issued under this Chapter.
      (23) Interdiction or commitment by due process of law.
      (24) Violation of any rule, regulation, or order of the board, consent decree agreed upon between the board and the licensee, or any provision of this Chapter.
      (25) The failure to pay timely a dentist license renewal fee as required by law.
      (26) Non-disclosure of waiving of co-payments to any third party payor.
      (27) Failing to cooperate with the board in investigating any matter before the board except for an openly expressed claim of a constitutional privilege; or knowingly failing to respond to a lawful demand from the board for information from any professional licensing or disciplinary authority.
      (28) Failing to maintain certification in an approved course of cardiopulmonary resuscitation for the renewal of a dental license.
      (29) When license suspension or revocation is otherwise required by law.
      B. The board shall establish regulations and procedures to enforce the provisions of this Section.
      C. Any license or permit suspended, revoked, or otherwise restricted by the board may be reinstated by the board.
      D. The board shall promulgate rules and regulations providing for the expungement of first-time advertising offenses from a licensee’s record after a period of three years from the date of the offense; provided however, the licensee has not had subsequent disciplinary actions of any kind taken against him by the board and the licensee has no disciplinary actions pending by the board.