author: MOORE, J. WILLIAMS, J.,

text:
    Tommy HARP, Plaintiff-Appellee v. William AUTREY and Autrey Investment Properties, L.L.C., Defendant-Appellants.
    No. 47,749-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 21, 2013.

      W. Kyle Green, L.L.C., by W. Kyle Green, for Appellant.
    William A. Jones, Jr., for Appellee.
    Before BROWN, WILLIAMS, CARAWAY, DREW and MOORE, JJ.
   MOORE, J.

1,William Autrey and Autrey Investment Properties LLC appeal a judgment finding that they violated the Louisiana Unfair Trade Practices Act (“LUTPA”), La. R.S. 51:1401 et seq., by discontinuing water and sewer service to Tommy Harp’s unoccupied mobile home park lots, and awarding damages of $3,000 and attorney fees of $5,000. Harp answers the appeal, seeking an increase of damages and attorney fees. For the reasons expressed, we reverse the finding of the LUTPA violation and vacate the award of attorney fees, but affirm the damages of $3,000 as reasonable under La. C.C. art.2024.

Factual Background

In 1969, Harp’s mother purchased Lot 14 in Suburban Acres Mobile Home Estates (“the park”) outside of Ruston in Lincoln Parish. Some three years later, she also bought the adjacent Lot 15; in 1978 she placed a mobile home on the lots and began living there. At some point, the water well dried up and the existing water lines fell into ill repair; no running water was available to Ms. Harp or the other residents of the park. Some began buying their own water or getting it from family and friends; eventually, the Louisiana National Guard placed large tanks of water nearby for the residents’ use. Most of the residents moved out because of the water problems, but Ms. Harp was one of the few to remain.

In 2004, Autrey (with his wife and his LLC) purchased over 20 lots in the park, including the water well and a sewage treatment lagoon. By the time of trial, they had bought 35 of the park’s 45 lots. Autrey repaired the water lines and began providing water and sewer services to the remaining presidents. No written agreement for water and sewer was ever executed, but Autrey sent the following letter to “All residents of Suburban Trailer Park,” with emphasis in original:

WATER
Due to the shift from well water to City water[,] there has been a significant increase in the cost of water. This is due to the city charging double for property located outside the city limits. It is possible that this rate will increase in the near future. These are circumstances beyond my control.
Beginning April 1st the monthly rate for water will be $4.5.00. This is due the 1st and late after the 5th. There will be a $10.00 late fee. Water services will be turned off on the 10th. * * *
It is critical that all water leaks are repaired. This means faucet leaks, drips, running toilets, water heater drains, etc. If you see puddles on the ground when it should be dry[,] this could mean a leak. Please let me know because you will be the one paying for these leaks in the long run. Private property owners can expect a water inspection in the near future. If you have leaks you will be responsible for immediate repairs or will have your water shut off until those repairs are completed[.] Your leak will cost everyone.
SEWAGE •
More bad news concerns the sewage system. Due to requirements by the public health system additional expenses are being incurred to maintain the system. This means that in the near future a sewage fee will be added to the water fee[,] probably in the amount of $20 per month. Again[,] these are additional expenses which are out of my control.

Ms. Harp began paying $45 per month for water and sewer service, and did so until she died in July 2008.

After Ms. Harp’s death, Tommy Harp (“Harp”) became owner of an undivided one-third interest in his mother’s property; he later purchased the remaining two-thirds interest for $6,000. Although Harp never lived in the park or had a tenant in the mobile home, he continued to pay the $45 monthly fee for water and sewer.

Is As noted, Autrey owned most of the land surrounding Harp’s two lots. Prior to her death, he had offered to buy her out; afterward, he made several such offers to Harp. At trial, Autrey admitted he wanted to acquire the remaining lots in the park. By late 2008, only one resident remained in the park, a Ms. Prewitt, who also refused to sell her lot to Autrey.

In early or mid-December 2008, Autrey used a backhoe and severed the water line to the park. He testified that he ran a water hose across the street to supply water to Ms. Prewitt until she was able to “relocate and find another place.” He “heard” that the hose froze “one or twice,” disrupting Ms. Prewitt’s water supply. She eventually moved out of the park.

Harp asked Autrey to restore the water service, but he refused to do so. According to Harp, he met with Autrey, suggesting that they share the expense of repairing the water line, and even offering to obtain water service from Ruston. However, Autrey rejected both options, advising Harp that if he got water elsewhere, he would not be able to use the sewer system.

By letter dated January 26, 2009, Au-trey notified Harp that water services were permanently terminated:

This letter is to inform you that I will no longer be able to provide water services to your lots[.] I have attempted to maintain these services long enough to allow the few residents who were living there to move out. Were it not for your mother living there, I probably would never have attempted to do even that[,] but I am glad that she didn’t have to move[.] * * *
Even though I own most of the lots, the shared cost of maintaining the system is more than I am willing to pay. Should you so desire, my offer to purchase your lots still stands if we can reach a price that is acceptable to both of us.

|4On October 7, 2009, Harp filed this suit for damages against Autrey, his wife and his LLC, alleging that terminating water and sewer services constituted a bad faith breach of the defendants’ obligation to supply those services to the park as well as a violation of LUTPA.

Autrey filed exceptions of no right and no cause of action, urging that Harp had no viable breach of contract claim. He also contended that there was no claim under LUTPA because Harp was neither a business competitor nor a consumer. The court overruled the exceptions.

At trial in August 2011, in addition to the testimony summarized above, two experts testified regarding the value of Harp’s lots. Harp’s expert, Richard Gene Nealy, a licensed real estate broker, testified that the property had a rental value of $500 per month; using the “income approach,” he capitalized the value of the lots, with utilities, at $58,714. Autrey’s expert, Mark S. Taylor, a real estate appraiser, used the “fair market value” approach, projecting a low-end value of $16,800 and a high-end of $39,700 for the lots. Both agreed the property had no income value without water and sewer service. Although nobody had lived in the mobile home since his mother’s death, Harp testified that he had a tenant for it; however, he did not corroborate this by testimony or documentation.

Action of the District Court

By oral reasons rendered in March 2012, the court found that Autrey assumed the responsibility of providing water and sewer service to the subject lot, doing so by sending the letter to the residents, but that he then |fiterminated the water supply without prior warning. Admitting it was a “close call,” the court found a violation of LUTPA: even though Autrey had no obligation to assume the duty of providing water and sewer, he did so. Further, Au-trey’s actions were “egregious,” taken in an effort to acquire the entire park: “There’s no requirement that Mr. Harp or any other person in that subdivision be required to sell their property.” The court also found Autrey in bad faith for failing to provide, despite “many opportunities,” notice of termination of water services. The court conceded that Autrey’s agreement to provide water was terminable at will, but stated,

The damages in this case flow not from the termination of the contract but from the inappropriate termination of the contract.

Nevertheless, the court declined to award Harp the full appraised value, as this would amount to unjust enrichment. The court awarded $3,000, representing rental for “six months [that] would be more than appropriate and reasonable under the circumstances to have provided notice to Mr. Harp and any other tenant that water service provision was being terminated.”

Finally, the court stated that attorney fees were authorized under LUTPA, R.S. 51:1409 A. By subsequent oral reasons, the court awarded Harp attorney fees of $5,000. As noted, Autrey has appealed and Harp has answered the appeal.

Discussion: LUTPA Violation

By his first assignment of error, Autrey urges the court erred in finding liability under LUTPA, La. R.S. 51:1401 et seq. He shows that LUTPA is penal in nature and strictly construed. Coffey v. Peoples Mortgage & Loan of Shreveport, 408 So.2d 1158 (La.App. 2 Cir.1981). He contends that Harp failed to prove either essential element, that Autrejfs conduct offended established public policy, or that his conduct was immoral, unethical, oppressive, unscrupulous and substantially injurious. Id. He also contends that LUTPA permits the exercise of sound business practices, permissible business judgment and appropriate free enterprise. SDT Indus. Inc. v. Leeper, 34,655 (La.App. 2 Cir. 6/22/01), 793 So.2d 327, writ denied, 2001-2558 (La.12/7/01), 803 So.2d 973. He concludes that there was no factual basis for the court to hold, in essence, that he must continue to provide, at his own expense, water services to Harp.

Harp responds that the findings are not plainly wrong. He suggests that virtually every act of Autrey’s was part of a calculated scheme to drive Harp out of the park, that his explanations for terminating water service were pretextual, and that his conduct was in bad faith.

LUTPA declares it unlawful to engage in “unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.” La. R.S. 51:1405 A. LUTPA also authorizes private actions under R.S. 51:1409 A:

Any person who suffers any ascertainable loss of money or movable property, corporeal or incorporeal, as a result of the use of employment by another person of an unfair or deceptive method, act, or practice declared unlawful by R.S. 51:1405, may bring an action individually but not in a representative capacity to recover actual damages. * * * In the event that damages are awarded under this Section, the court shall award to the person bringing such action reasonable attorney fees and costs. * * *

17This section creates a right of action for any person who suffers any ascertainable loss for a violation of the statute. Cheramie Servs. Inc. v. Shell Deepwater Production Inc., 2009-1633 (La.4/23/10), 35 So.3d 1053. Acts constituting unfair or deceptive trade practices are not specifically defined but are determined on a case-by-case basis. Johnson Const. Co. v. Shaffer, 46,999 (La.App. 2 Cir. 2/29/12), 87 So.3d 203; Tyler v. Rapid Cash LLC, 40,-656 (La.App. 2 Cir. 5/17/06), 930 So.2d 1135. The statute applies to any “consumer transaction,” which is defined as “any transaction involving trade or commerce to a natural person, the subject of which transaction is primarily intended for personal, family, or household use.” R.S. 51:1402(3).

To prevail on a LUTPA claim, the plaintiff must show that the alleged conduct “offends established public policy and * * * is immoral, unethical, oppressive, unscrupulous, or substantially injurious.” Cheramie Servs. v. Shell Deepwater, supra at 10, 35 So.3d at 1059, and citations therein; Coffey v. Peoples Mortgage & Loan, supra. LUTPA is essentially penal in nature and as such is subject to reasonably strict construction. Coffey v. Peoples Mortgage & Loan, supra; Glod v. Baker, 2004-1483 (La.App. 3 Cir. 3/23/05), 899 So.2d 642, writ denied, 2005-1574 (La.1/13/06), 920 So.2d 238. The supreme court recently explained:

LUTPA does not prohibit sound business practices, the exercise of permissible business judgment or appropriate free enterprise transactions. The statute does not forbid a business to do what everyone knows a business must do: make money. * * * Finally, the statute does not provide an alternate remedy for simple breaches of contract. There is a great deal of daylight between a breach of contract claim and the egregious behavior the statute proscribes.

Cheramie Servs. v. Shell Deepwater Production, supra at 11, 35 So.3d at 1053, quoting Turner v. Purina Mills Inc., 989 F.2d 1419, 1422 (5 Cir.1993); Hardy v. Easterling, 47,950 (La.App. 2 Cir. 4/10/13), 113 So.3d 1178; SDT Indus. v. Leeper, supra.

On close review, this record does not support a finding that Autrey’s conduct was immoral, unethical, oppressive, unscrupulous, or substantially injurious. The district court aptly noted that Autrey was under no obligation to provide water services to residents of the park, but he voluntarily assumed this duty, upon the payment of a monthly fee. His letter to all residents warned that rates were subject to “circumstances beyond my control,” that leaky plumbing in individual trailers put strain on the system, and that he would turn off plumbing if repairs were not made. Residents like Ms. Harp were on full notice that the park’s water and sewer system were on tenuous footing. An experienced plumber, Autrey testified without contradiction that in late 2008 he worked a week trying to find a massive leak in the system, but was unsuccessful. Notably, he disconnected the water months after Ms. Harp died and nobody was living in the mobile home. While the district court diplomatically referred to this as a “close call,” we do not see anything immoral, unethical, oppressive, unscrupulous or substantially injurious in disconnecting the water to an unoccupied mobile home. The court’s finding of a LUTPA violation is a manifest abuse of discretion.

Moreover, Autrey’s profit-and-loss statement showed losses of $11,268.26, not including his own time and labor, in trying to repair the Rsystem. He testified without contradiction that he received monthly water bills over $200, reflecting a volume of water usage consistent only with major problems in the system. In light of these losses, and the subsequent written notice to Harp, we find that the decision to disconnect water to the park was the exercise of permissible business judgment. The district court’s finding to the contrary is a manifest abuse of discretion.

Harp strenuously argues that regardless of everything else, Autrey’s conduct was a bald attempt to force him to sell his lots. “After informing Harp that all water and sewage services were being permanently terminated, Autrey offered to buy his lots. It does not get much clearer than this.” (Emphasis in original.) However, the fact of massive water system failure permeates this record, and discontinuing the water services was a reasonable business response. LUTPA does not prohibit the profit motive. Cheramie Servs. v. Shell Deepwater Production, supra. Moreover, after cutting off the water, Autrey did not purchase any additional lots. Autrey’s admitted ambition to acquire the entire park did not transform his justifiable conduct into unfair trade practices. The finding of a LUTPA violation is reversed.

Contract Termination and Damages

By his second assignment of error, Au-trey urges the court erred in finding he improperly terminated water services to Harp; by his third assignment, he urges the court erred in awarding $8,000 in damages. He argues that in lieu of LUTPA, the proper measure of damages is La. C.C. art.2024, under which a contract of unspecified duration may be terminated at the will of either party by giving notice, reasonable in time and form, to l1flthe other party. He suggests that because Harp still owns the lots and failed to prove any actual loss of rental, no damages are due.

By answer to appeal, Harp contends the court erred in not accepting the expert opinion of his real estate broker, Nealy, who set the loss at $49,714, or at least accepting the expert opinion of Autrey’s expert real estate appraiser, Taylor, who set the loss at $22,900.

For the reasons already discussed, the finding of a LUTPA violation was manifestly erroneous; hence, R.S. 51:1409 A cannot form the basis for damages. We agree with Autrey’s contention that the proper measure of damages is La. C.C. art.2024:

A contract of unspecified duration may be terminated at the will of either party by giving notice, reasonable in time and form, to the other party.

Notice of modification of a contract that is reasonable in time and form is a basic right of any party. Stegall v. Orr Motors of Little Rock Inc., 48,241 (La.App. 2 Cir. 6/26/13), 121 So.3d 684, 2013 WL 3197448. Notice of termination of a contract must be in good faith. La. C.C. art. 1770; Volentine v. Raeford Farms of La., 48,219 (La.App. 2 Cir. 7/24/13), 121 So.3d 742, 2013 WL 3816430. Damages arising from a contract are measured by the loss sustained by the obligee and the profit of which he has been deprived. La. C.C. art.1995. When damages are insusceptible of precise measurement, much discretion shall be left to the court for the reasonable assessment of these damages. La. C.C. art.1999. The trial court has great discretion to accept or reject expert testimony. Hamel’s Farm LLC v. Muslow, 43,475 (La.App. 2 Cir. 8/13/08), 988 So.2d 882, writ denied, 2008-2431 (La.1/30/09), 999 So.2d 754. In | nfact, the court may even substitute its own common sense and judgment for that of an expert witness when the evidence as a whole warrants such a substitution. Lake D’Arbonne Properties LLC v. Digco Utility Const. Inc., 41,671 (LaApp. 2 Cir. 1/31/07), 949 So.2d 590, and citations therein.

Before the letter to all residents, Autrey had no obligation to provide water and sewer services to residents of the park. That letter, however, constituted a contract to provide these services, subject to “circumstances beyond my control” and the warning that he would terminate services in the event of a major leak. After extensive work to repair the system in late 2008, Autrey severed the water line, cutting off service to Harp’s mobile home. The district court properly found that Au-trey provided no advance notice of this action. This breached his duty of providing notice, reasonable in time and form, of his intent to terminate the contract. Damages are appropriate under C.C. art.2024.

After careful review, we find no abuse of discretion in the award of damages. The court was entitled to find that a proper notice of termination, reasonable in time and form under Art.2024, would have given Harp six months’ notice. Both experts agreed that the mobile home had a rental value of $500 a month. This justifies the award of $8,000 damages.

We find no merit in Harp’s claim for additional damages. The district court apparently felt that both experts’ projections of capitalized losses, ranging from $16,800 to $58,714, were based on untenable assumptions. Notably, Harp did not show that he could lease the 35-year-old mobile home on a long-term, continuous basis; aside from his own self-serving testimony, h?he offered no evidence that he had even attempted to lease it. Also, Harp had previously paid his relatives $6,000 to buy out their two-third interest in the lots, suggesting a fair value of $9,000; the experts’ projected loss of use— not loss of the property itself — amounting to nearly five times that amount borders on the absurd. The district court was completely within its discretion to reject the experts’ estimates and to substitute its own common-sense approach to Harp’s loss.

These assignments of error lack merit.

Attorney Fees

By his third assignment of error, Autrey contests the award of $5,000 in attorney fees; by his answer to appeal, Harp seeks an increase in attorney fees to $10,890, with additional fees for defending this appeal.

Attorney fees are not allowed except where authorized by contract or statute. State v. Wagner, 2010-0050 (La.5/28/10), 38 So.3d 240; Hollenshead Oil & Gas LLC v. Gemini Explorations Inc., 45,389 (La.App. 2 Cir. 7/21/10), 44 So.3d 809, writ denied, 2010-2046 (La.11/12/10), 49 So.3d 892.

For the reasons already expressed, we have reversed the finding of a LUTPA violation; thus, the attorney fee provision of R.S. 51:1409 A does not apply. Autrey’s letter to all residents, which constituted the agreement between the parties, made no provision for attorney fees, and Harp has shown no other contract or agreement addressing the subject. The award of the attorney fee is not supported by statute or contract; it will be reversed. This assignment of error has merit.

113Conclusion

For the reasons expressed, we reverse the finding of a LUTPA violation and vacate the award of attorney fees. However, we affirm the award of damages of $3,000 as reasonable under La. C.C. art.2024. All costs, trial and appellate, are assessed 50% to Autrey and 50% to Harp.

REVERSED IN PART, AFFIRMED IN PART.

WILLIAMS, J., dissents with written reasons.

DREW, J., dissents for the reasons assigned by Judge WILLIAMS.

WILLIAMS, J.,

dissents.

hBecause the trial court was not manifestly erroneous in concluding that defendants violated LUTPA, I respectfully dissent. Moreover, I would modify the trial court’s judgment to increase the award of damages to $20,000 and the amount of attorney’s fees to $10,887.50.

LSA-R.S. 51:1405(A) grants a right of action to any person who suffers any ascertainable loss for a violation of the statute. Cheramie Services, Inc. v. Shell Deepwater Production, Inc., 2009-1633 (La.4/23/10), 35 So.3d 1053. Acts which constitute unfair or deceptive practices are not specifically defined, but are determined on a case-by-case basis. Johnson Const. Co. v. Shaffer, 46,999 (La.App.2d Cir.2/29/12), 87 So.3d 203; Tyler v. Rapid Cash, LLC, 40,656 (La.App.2d Cir.5/17/06), 980 So.2d 1135. Conduct is deemed unlawful if it involves fraud, misrepresentation, deception, breach of fiduciary duty or other unethical conduct. A practice is unfair when it either offends established public policy or the practice is unethical, oppressive, unscrupulous, or substantially injurious to consumers, including business competitors. Shaffer, supra; A & W Sheet Metal, Inc. v. Berg Mechanical, Inc., 26,799 (La.App.2d Cir.4/5/95), 653 So.2d 158.

In the instant case, defendants voluntarily assumed the task of offering for sale and/or distribution water and sewerage services for the benefit of plaintiff’s property. Additionally, plaintiff is a person who used and paid for goods or services, ie., water and sewerage services, provided by defendants. Therefore, under the clear language of LUTPA, plaintiff is a “consumer.” Consequently, the trial court did not err in concluding that laLUTPA is applicable.

The trial court also concluded that defendants violated LUTPA when the water service to plaintiffs property was terminated without notice. The court specifically found that Mr. Autrey acted in bad faith and that his actions were egregious and were motivated by his desire to own the entire parcel of land on which the mobile home park sits.

The evidence of record supports the trial court’s conclusion. When defendants purchased the property in 2004, they began voluntarily supplying water and sewerage services to the residents of the mobile home park. When plaintiff assumed ownership of his properties, the water and sewerage services were available. Thereafter, in December 2008, Mr. Autrey severed the water line, thereby terminating the water services, without providing notice to the property owners. Mr. Autrey admitted that plaintiff asked him to restore the water services and that he led plaintiff to believe that he would do so. However, rather than restoring the services, on January 26, 2009, Mr. Autrey notified plaintiff that the water and sewerage services were permanently terminated. It is noteworthy that Mr. Autrey continued to supply water and sewerage services to his other properties adjacent to the mobile home park. Mr. Autrey admitted that those properties shared the same water line as the mobile home park. I also note that prior to terminating the water services, Mr. Autrey had made numerous offers to purchase plaintiffs property, first to plaintiffs mother, then to plaintiff. In fact, when Mr. Autrey notified plaintiff that the water services had been terminated permanently, that notice was accompanied by another offer to | ¡¡purchase plaintiffs property.

Additionally, Regina Prewitt testified that she and her three young children were residents of the mobile home park when Mr. Autrey disconnected the water. She stated that Mr. Autrey did not notify her of his intent to disconnect the water. She also stated that she asked him to reconnect the water services; he refused to do so. Ms. Prewitt stated that Mr. Autrey informed her that “he was never turning it back on.” She also testified that after Mr. Autrey disconnected the water, he ran a water hose across the street for “a few days” and later offered her $20 to purchase bottled water for her family’s use. Ms. Prewitt further testified that she offered to furnish her own water supply by either placing a tank on top of her mobile home or by having a well installed. She stated that Mr. Autrey informed her that if she placed a well or tank on the property, he would not allow her to use the sewerage. Additionally, Ms. Prewitt testified that she owned two lots in the mobile home park, and defendant had offered to purchase her lots “a few times,” both before and after he terminated the water services.

Plaintiff testified that after Mr. Autrey disconnected the water, he met with him and attempted to resolve the issues pertaining to the water lines. According to plaintiff, he suggested sharing the expenses of repairing the water line. Plaintiff testified that he also offered to obtain water services from the city of Ruston. However, Autrey rejected both alternatives. Like Ms. Prewitt, plaintiff testified that Mr. Autrey informed him that he would not be allowed to use the sewerage even if he managed to obtain water .[¿services elsewhere.

Defendants’ contention that they terminated water and sewerage services to the mobile home park for financial reasons due to a “massive water leak” was contradicted by Mr. Autrey’s testimony. Mr. Autrey testified, and the evidence confirmed, that in the three years prior to terminating the water services, he paid only approximately $208 in costs for maintaining the water line; $198 of that cost was for the annual Department of Environmental Quality permits. Mr. Autrey also testified that he was unable to locate the “massive leak” in the water line leading to the trailer park. However, he admitted that he never hired a plumber to attempt to locate and repair the leak because he “didn’t want to spend the money.”

Additionally, the water bills for the mobile home park were introduced into evidence. The water bills for the months leading up to the termination of water services ranged from $198-$221. The evidence also showed that in prior years, the water bills exceeded $800 per month at times, which indicated water leaks. Each time, Mr. Autrey merely repaired the leaks and paid the water bills; he never disconnected the water. However, in this instance, rather than locating and repairing the water leak or hiring a plumber to do so, Mr. Autrey chose to permanently terminate water services to the mobile home park.

For these reasons, the trial court did not err in finding defendants violated LUTPA by engaging in unfair practices. Mr. Au-trey’s testimony revealed that he owned over 22 acres of land adjacent to the mobile home park. He candidly admitted that he wanted to own the additional five acres |fiwhich comprised the mobile home park so that he could control the property “in any way that [he] saw fit.” Based on this record, defendants’ actions were unethical and unscrupulous, and, as such, in violation of LUTPA.

Moreover, plaintiff answered the appeal, contending the trial court abused its discretion in awarding damages. He argued that he cannot use or rent the mobile home without water services; therefore, he is entitled to be compensated for the decrease in the value of his property.

Any person who suffers an ascertainable loss as a result of an unfair or deceptive act may bring an action to recover actual damages. LSA-R.S. 51:1409(A). The assessment of damages is a determination of fact, one entitled to great deference on review. See v. Entergy Corp., 2010-0065 (La.6/4/10), 35 So.3d 1081; Wainwright v. Fontenot, 2000-0492 (La.10/17/00), 774 So.2d 70. Accordingly, a reviewing court’s role in examining damages is not to decide what it considers to be an appropriate award, but rather, to review the exercise of discretion by the trier of fact. See v. Entergy Corp., supra; Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994). If an appellate court finds that the trier of fact clearly abused its discretion, it can only disturb the award to the extent of lowering it (or raising it) to the lowest (or highest) point which is reasonably within the discretion given to that court. See, See v. Entergy Corp., supra; Coco v. Winston Indus., Inc., 341 So.2d 382 (La.1977).

In the instant case, Mr. Autrey testified that plaintiff informed him that he wanted him to continue the water and sewerage services to his [ fimobile home. However, Mr. Autrey denied having knowledge that plaintiff planned to rent the trailer to a tenant. Mr. Autrey testified that plaintiff told him that he planned to use the trailer as a “guest cottage when he had friends that came in.”

Plaintiff testified that he continued to pay the water and sewerage bill after he assumed ownership of the property; he also maintained the other utilities in the mobile home. He stated that he did so because he intended to rent the property “as an income string” [sic]. Plaintiff also testified that after the water and sewerage services were terminated, he met with Mr. Autrey and informed him that he had a prospective tenant and could not rent the mobile home without water and sewerage services. Plaintiff also testified that he had reached an agreement with Marion Faulkner to rent the mobile home for $500 per month.

Richard Gene Nealy, a licensed real estate broker, was accepted by the court as an expert “in evaluation of residential rental property in the Lincoln Parish area.” Mr. Nealy submitted an appraisal for the mobile home in question as follows:

* ⅝ *
Rental of $500 per month for this unit size and condition would be typical in this market and is used to capitalize value as depicted below[:]
Capitalization of Income: Rental @ $500 per month, annualized to $6,000
Less projected expenses:
Taxes: -90.00
Insurance (estimated): -300.00
Maintenance: -300.00
Vacancy: -600.00
Depreciation: -600.00
|7Net Estimated Income: $4,110.00
Capitalization: 7% cap rate ($4,110/.07) = $58,714.00

[I]t is my opinion that the value of this property, as of July 29, 2011, would be:

Value and lots and mobile home, without utilities $ 9,000.00
Value and lots and mobile home, with utilities capitalized @ 7% $58,714.00

Mr. Nealy testified that he used the “income approach,” which uses the prospective income of a property to determine the value of the property. He also explained that the “cap rate”, in this case 7%, is “a reasonable anticipated rate of return on your invested dollar.” Mr. Nealy further testified that if a rental mobile home lacks the proper utilities, it cannot be rented, and, therefore, could only either be sold as salvage or moved to a place where rental is possible. He stated that the $9,000 figure is the value of plaintiffs mobile home as listed in the National Automotive Dealers Association (“NADA”).

On cross-examination, Mr. Nealy admitted that plaintiffs property is located in a “B4” zone. Mr. Nealy also admitted that he did not know all of the restrictions of B4 zoning and was uncertain whether or not the mobile home could be rented as a residence because of the zoning. However, on redirect, he testified that the zoning of the mobile home park did not result in the revocation of the subdivision restrictions. Mr. Nealy stated that a residential classification was a lower classification than B4. Therefore, the property could be used for a lower classification, i.e., residential, but it|scould not be used for higher a classification.

Mark S. Taylor, a real estate appraiser, testified as an expert for the defense. He was accepted by the court as an expert in real estate appraisal. Mr. Taylor described the “B4” zoning classification as a “highway district, which is commercial zoning basically along the interstate highway in Ruston.” According to Mr. Taylor, plaintiffs mobile home could not be used as a residential rental due to the zoning.

Mr. Taylor also prepared an appraisal of plaintiffs property, using the fair market value approach. The appraisal provided:

By reasons of my investigation and analysis, data contained in this report, other information in my files, and my experience in the Market, it is my opinion that the formulated opinion of the Market Value of the subject property as of August 2, 2011, is as follows: Scenario 1
Land Value o o
Income Approach to Value o o cT CO
Direct Sales Comparison Approach o o o to CO
Scenario 2
Land Value $ 7,900
Income Appi’oach to Value $39,700
Direct Sales Comparison Approach $21,000
Scenario 3
Land Value o o
Direct Sales Comparison Approach GS o o

(Emphasis in original).

Mr. Taylor determined the “Land Value” by finding the prices of parcels of land which had been sold in the area (one parcel sold for $13,000 ($0.99/Ae); one sold for $8,000 ($0.73/Ac); the other sold for $8,000 ($0.42/Ac)). In determining the “Income Approach to Value,” Mr. Taylor | atestified that he found six other mobile homes in the area and the monthly rental for those units ranged from $350 per month to $700 per month. Thereafter, he approximated the monthly rent of plaintiffs mobile home as $450 per month. In determining the “Direct Sales Comparison Approach,” Mr. Taylor stated that he utilized the sales price of similar mobile homes in the area.

In explaining the three different scenarios, Mr. Taylor testified that he assumed that plaintiff’s lots and mobile home were real property and that they could be used as residential property. In Scenario 1, Mr. Taylor stated that he assumed that the mobile home was immobilized, habitable and is considered real property.

In Scenario 2, he testified that he assumed that the mobile home had not been immobilized. Therefore, he valued the mobile home as chattel, rather than as real property. He also testified that the market or direct sales comparison with the mobile home as chattel, rather than as real property, substantially decreased the direct sales comparison, while increasing the land value.

In Scenario 3, Mr. Taylor testified that he assumed that the property could not be used as residential and that the mobile home was inhabitable. Therefore, the land would be valued at a no-cost approach based on commercial use; the direct sales was based on the NADA value of the mobile home.

On cross-examination, Mr. Taylor testified that $500 per month rent for plaintiffs mobile home would not be unreasonable because that amount | inis within the range of other rental units in the area. He also stated that if plaintiff self-managed the property, the net annual rental income would amount to $4,473. Using a capitalization rate of .0936, the capitalized rental value of the property is approximately $47,788. According to Mr. Taylor, the value of the mobile home with no utilities is approximately $13,000. However, if the mobile home was sold and had to be removed from the lot, the cost of moving it would have to be deducted from its value.

Mr. Taylor also admitted the value of Mr. Autrey’s interest in the mobile home subdivision would increase if he obtained ownership of the entire parcel of land which comprised the mobile home park. He agreed that 27 acres of service road, whether zoned as residential or commercial, is worth much more than the mobile home subdivision.

Additionally, Mr. Taylor testified that plaintiffs lots are too small to accommodate a sewerage plant. He stated that plaintiff was totally dependent on the sewerage system that defendants had in place.

Mr. Taylor also testified with regard to the city of Ruston’s annexation of the property which resulted in the zone change from residential to B4. He admitted that, in his experience in real estate, when the city annexes an area, the existing uses of the property are “grandfathered.” Therefore, if property was designated a residential subdivision prior to the annexation, it was unlikely that the city would force property owners to change the uses of their property. Mr. Taylor also admitted that since the zone change, residences and mobile homes continue to exist throughout the area.

Inin awarding damages, the trial court took into account the monthly rental plaintiffs property could garner, if utilities, including water and sewerage, were available. The court then multiplied that amount — $500—by six months, and awarded $3,000 in damages. In so doing, the trial court abused its discretion.

Both experts agreed that the mobile home had no rental value if no water and sewerage services were available. Mr. Nealy, plaintiffs expert, opined that the mobile home and lots, without utilities, was only worth $9,000. Mr. Taylor, defendants’ expert, valued the mobile home and lots, without utilities, at $13,000, minus the cost of moving the mobile home to another location.

While the estimates of the rental income of the property, with utilities, varied, both experts agreed that the rental value of the property was worth considerably more than the $3,000 awarded by the trial court. Defendants’ own expert, assuming that the mobile home was immobilized and habitable, appraised the property at $36,000-$39,000 (using the direct sales comparison approach and income approach to value, respectively).

Consequently, based on this record, an award of $20,000 is appropriate. The expert testimony clearly established that plaintiffs property has essentially no rental value without water and sewerage services. Mr. Autrey’s testimony established that he has no intention of supplying water or sewerage to the property. Even if plaintiff somehow contracted with the city of Ruston for water services, Mr. Autrey has made |12it clear that he is unwilling to allow plaintiff to use the sewage lagoon.

Furthermore, the trial court abused its discretion in awarding $5,000 in attorney fees; plaintiff was entitled to attorney fees in the amount of $10,887.50.

Reasonableness of attorney fees is determined by the factors set forth in Rule 1.5(a) of the Rules of Professional Conduct. These factors include: (1) the time and labor required, the novelty or difficulty of the issues, and the skill required to properly perform the legal services; (2) the likelihood, if apparent to the client, that the matter will preclude other employment; (3) the fee customarily charged in the locality for similar services; (4) the amount involved and results obtained; (5) the time limitations imposed by the client or circumstances; (6) the nature and length of the professional relationship with the client; (7) the experience, reputation, and ability of the lawyer; and, (8) whether the fee is fixed or contingent. Additionally, when an issue of attorney fees is present in the case, it is within the appellate court’s discretion to award or increase attorney fees for the expense of the appeal. LSA-C.C.P. art. 2164; Smith v. Pilgrim’s Pride Corp., 44,080 (La.App.2d Cir.2/25/09), 4 So.3d 983, writ denied, 2009-0961 (La.6/19/09), 10 So.3d 739.

During the hearing to fix attorney fees, plaintiffs counsel stated that his hourly rate for attorney fees was $130 and that he had expended 83.75 |1shours in pursuing this matter. The record supports the substantial time and labor expended by plaintiffs counsel. Thus, I would modify the trial court’s award of attorney fees, increasing the award to $10,887.50.

      . Ms. Autrey was later dismissed as a defendant by joint stipulation.

      . Plaintiff’s testimony that the mobile home was immobilized and habitable was uncontro-verted.

      . LSA-C.C.P. art. 2164 provides:
      The appellate court shall render any judgment which is just, legal, and proper upon the record on appeal. The court may award damages, including attorney fees, for frivolous appeal or application for writs, and may tax the costs of the lower or appellate court, or any part thereof, against any party to the suit, as in its judgment may be considered equitable.


source: Caselaw Access Project

author: KEATY, Judge.

license: Public Domain

text:
    Callie Ann COOK v. FAMILY CARE SERVICES, INC.
    No. WCW 13-108.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 28, 2013.

      H. Douglas Hunter, Guglielmo, Lopez, Tuttle, Hunter & Jarrell, Opelousas, Louisiana, for Defendant-Respondent: Family Care Services, Inc.
    Dorwan G. Vizzier, Broussard, Halcomb & Vizzier, Alexandria, Louisiana, for Plaintiff-Applicant: Callie Ann Cook.
    Stephen Winston Glusman, Glusman, Broyles & Glusman, Baton Rouge, Louisiana, Denis Paul Juge, Juge, Napolitano, Guilbeau, Ruli & Frieman, Metairie, Louisiana, for LUBA Casualty Insurance Company, Inc.
    Court composed of ELIZABETH A. PICKETT, PHYLLIS M. KEATY, and JOHN E. CONERY, Judges.
   KEATY, Judge.

I, Plaintiff-relator, Callie Ann Cook (Cook), seeks supervisory writs from' a judgment rendered by the workers’ compensation judge (WCJ) finding that La. R.S. 23:1203.1 applied retroactively to her appeal of a decision from the medical director of the Office of Workers’ Compensation (OWC), denying her request for approval of medical treatment.

FACTS AND PROCEDURAL HISTORY

Cook sustained an on-the-job injury on May 13, 2006, while employed at Family Care Services, Inc. (FCS), defendant-respondent herein. As a result of her injury, Cook underwent low back surgery in 2007 and continues under the care of her orthopedist, Dr. Austin W. Gleason. According to Dr. Gleason’s records, Cook underwent a lumbar CT scan on November 2, 2011. In April of 2012, Dr. Gleason recommended a repeat CT scan of the lumbar spine, which was refused by FCS.' In August of 2012, Dr. Gleason again recommended a repeat lumbar CT scan to check for spinal stenosis. On September 4, 2012, Dr. Gleason submitted a 1010 Form, requesting authorization for a lumbar CT scan. The request was denied by utilization review on September 10, 2012, upon a finding that the procedure was not medically necessary under the medical treatment guidelines.

On September 18, 2012, Cook filed a Form 1009, seeking an order from the medical director of the OWC approving the requested CT scan. On October 1, 2012, the medical director denied Cook’s request. Cook then filed a 1008 Disputed Claim for Compensation on October 15, 2012, seeking reversal of the medical director’s decision and an award of penalties and attorney fees, alleging | athat the refusal to approve the requested treatment was arbitrary and capricious. Cook argued that because her accident predated passage of La.R.S. 23:1208.1 which requires requests for medical treatment to be submitted to the OWC for approval by a medical director, that law was not applicable to her claim.

The WCJ issued a rule to show cause with respect to the review of the applicability of La.R.S. 23:1203.1 to Cook’s claim. In response to the rule, Cook filed a memorandum, objecting to the application of La.R.S. 23:1203.1 to her claim for medical treatment arising from her 2006 accident. On December 21, 2012, the WCJ ruled that La.R.S. 23:1203.1 applied retroactively to Cook’s 2006 accident. Cook timely sought supervisory review of that decision.

By letter dated July 11, 2013, this court received a letter from Cook’s counsel of record advising that FCS had approved Cook’s request for a CT scan of the lumbar spine, thus making the issue of an order for approval for the testing moot. Nevertheless, Cook still wished to pursue this writ as her 1008 also presented the question of whether she is entitled to penalties and attorney fees for FCS’s initial refusal to authorize the requested testing which required her to file formal claims with the OWC. According to the letter, whether she is entitled to penalties and attorney fees is dependent upon the correctness of the WCJ’s ruling.

SUPERVISORY RELIEF

The exercise of supervisory jurisdiction by appellate courts is within their plenary power. La. Const, art. 5, § 10. Appellate courts generally will not exercise such jurisdiction unless an error in the trial court’s ruling will cause the petitioner irreparable injury or an ordinary appeal does not afford an adequate remedy. Stevens v. Patterson Menhaden Corp., 191 So.2d 692 (La.App. 1 Cir.1966), writ denied, 250 La. 5, 193 So.2d 524 (1967).

Borrel’s, Inc. v. City of Marksville, 05-48, p. 1 (La.App. 3 Cir. 6/1/05), 904 So.2d 938, 939.

|,.STANDARD OF REVIEW

Statutory interpretation is a question of law. We review questions of law de novo without deference to the lower court’s decision. Louisiana Municipal Assoc. v. State, 04-227 (La.1/19/05), 893 So.2d 809. “When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written,” without further interpretation into the legislative intent. Id. at 837. Further, each word in a statute is presumed to be effective and serve a useful purpose; therefore, we will give effect to all parts of a statute, understood as a whole.

Mouton v. Lafayette Physical Rehab. Hosp., 13-103, pp. 2-3 (La.App. 3 Cir. 6/5/13), 114 So.3d 626, 628.

DISCUSSION

At the hearing to determine whether La.R.S. 23:1203.1 applied retroactively to this case, the WCJ stated:

This is [sic] the first time I’ve heard discussion about retroactive prospective application, but this is the first time I’ve ever had the matter brought before this Court. And it’s sort of like arguing that, ‘Well, an injured worker is entitled to reasonable and necessary medical care,” which is what the Statute stated prior to the adoption of the medical treatment guidelines, and it’s kind of like arguing, “Well, the medical treatment guidelines are not reasonable and necessary medical care.” That’s sort of oxymoronic. And 23:1203.1, Section I says that, “After promulgation of the medical treatment schedule throughout this chapter and not withstanding any provision of law to the contrary, medical care, services and treatment due pursuant to Revised Statute 23:1203 et sec reaping the same medical care by the employer to the employee shall mean care, services and treatment in accordance with the medical treatment schedule.” But it’s my current impression that the phraseology “Notwithstanding any provision of the law to the contrary” indicates that the intent of the legislature in the adoption of this statute to have this law apply to all claims, no matter the date of injury, after the adoption of the medical treatment guidelines, and that’s how I’d rule today.

|4Cook argues that the WCJ committed an error of law in interpreting La.R.S. 23:1203.1 to apply retroactively to claims arising out of on-the-job injuries occurring prior to the enactment of La.R.S. 23:1203.1 by 2009 La. Acts No. 254. At the time of her accident in 2006, La.R.S. 23:1203(A) provided, in pertinent part, “[i]n every case coming under this Chapter, the employer shall furnish all necessary drugs, supplies, hospital care and services, medical and surgical treatment and any non-medical treatment recognized by the laws of this state as legal....” Cook maintains that the definition of the medical care and treatment required by the employer was changed with the enactment of La.R.S. 28:1203.1, specifically Section I, which now requires a medical treatment schedule. She further contends that application of La.R.S. 23:1203.1 reduces the medical benefits for her on-the-job accident that predated the enactment.

Cook argues that there is no legislative expression of intent to apply La.R.S. 23:1203.1 retroactively. In the absence of such intent, Cook maintains that the court must classify La.R.S. 23:1203.1 as substantive, procedural, or interpretive, citing Bourgeois v. A.P. Green Industries, Inc., 00-1528 (La.4/3/01), 783 So.2d 1251. Cook adds that pursuant to La.R.S. 1:2, the ret-roactivity of a statute must be “expressly so stated.” Because La.R.S. 23:1203.1 does not indicate that it should be applied to accidents that occurred prior to its 2009 enactment, it should be applied prospectively, only to accidents that occurred after its enactment. In support of her argument, Cook refers this court to Stelly v. Overhead Door Co. of Baton Rouge, 94-569, pp. 7-8 (La.12/8/94), 646 So.2d 905, 911-12, wherein the supreme court stated:

15A substantive law creates, confers or destroys rights, causes of action or legal duties. A procedural law prescribes methods for enforcing substantive laws, and relates to the form of the proceeding or the operation of the laws. An interpretive law merely establishes the meaning that the existing law had from the time of its enactment.

In Stelly, the court considered these precepts to 1989 La. Acts 454 and determined that the legislation was not interpretive or procedural, as it did not establish the meaning of La.R.S. 23:1032, nor did it prescribe methods for enforcing the substantive rights and obligations already dictated in the statute. Instead, the court found the enactment to be substantive as it destroyed rights or causes of actions by barring any tort action raised under a theory of dual capacity. Furthermore, the court held that “no law can be applied retroactively so as to divest a party of a vested right.” Id. at 912 (citing Cole v. Celotex Corp., 599 So.2d 1058 (La.1992)).

Likewise, Cook contends herein that La. R.S. 23:1203.1 is a substantive change because it changes the definition of medical care and services to which she is entitled and destroys her rights by redefining and limiting such medical care. Cook also maintains that La.R.S. 23:1203.1 destroys the legal duties of FCS to provide medical care. Lastly, Cook maintains that the law in effect at the time of her injury is the applicable law. In support of her claim, Cook cites a number of cases, none of which involve the statute herein.

In opposition, FCS asserts that the legislature expressed its intent in Section L that once the guidelines were established, injured employees would receive prompt medical care. Section L reads, “It is the intent of the legislature that, with the establishment and enforcement of the medical treatment schedule, medical and | f,surgical treatment, hospital care, and other health care provider services shall be delivered in an efficient and timely manner to injured employees.” FCS stresses that the purpose of enacting the guidelines was to create a streamlined system for injured workers to navigate and to increase efficiency in the system. As such, FCS maintains that the wording of Section L is an expression of a retroactive and prospective application of the new law.

Additionally, FCS refers to the language of Section I and urges that the legislature expressed its intent that the definition of “medical care, services, and treatment due” was to change from being determined by the former system, which it describes as “cumbersome,” to that defined by the medical treatment schedule, and that such change was to occur “[a]fter the promulgation of the medical treatment schedule.”

Lastly, FCS maintains that the language in Section J regarding disputes after January 1, 2011, demonstrates the legislature’s intent for any dispute after January 1, 2011, to be subject to the medical guidelines. Section J reads:

After a medical provider has submitted to the payor the request for authorization and the information required by the Louisiana Administrative Code, Title 40, Chapter 27, the payor shall notify the medical provider of their action on the request within five business days of receipt of the request. If any dispute arises after January 1, 2011, as to whether the recommended care, services, or treatment is in accordance with the medical treatment schedule, or whether a variance from the medical treatment schedule is reasonably required as contemplated in Subsection I of this Section, any aggrieved party shall file, within fifteen calendar days, an appeal with the office of workers’ compensation administration medical director on a form promulgated by the director. The medical director shall render a decision as soon as is practicable, but in no event, not more than thirty calendar days from the date of filing.

|7FCS urges that the legislature did not base this date upon the date of the accident but rather the date of the dispute. Because Cook’s dispute arose after January 1, 2011, FCS concludes that La.R.S. 23:1203.1 applies to the dispute.

If this court finds that the legislature did not express its intent, FCS argues in the alternative that La.R.S. 23:1203.1 is procedural, not substantive, because Cook’s right to reasonable medical treatment has not changed, only the procedure. As such, FCS maintains that La.R.S. 23:1203.1 should be applied retroactively and prospectively. Further, FCS urges that the new procedure in no way changes the rights of the employee to reasonable medical care.

An amicus curiae brief was filed in this matter on behalf of LUBA Casualty Insurance Company, Louisiana Workers’ Compensation Corporation, Louisiana Home Builders Association SIF, LAC Self Insured Fund, Louisiana Restaurant Association Self Insurers Fund, Stonetrust Commercial Insurance Company, Louisiana Healthcare Self Insurance Fund, and Louisiana Auto Dealers Self Insurers’ Fund on the issue herein, i.e., whether the medical treatment schedule is to be applied to all treatment of injured workers requested by medical providers after July 13, 2011. The amici curiae maintain that no substantive rights of an injured worker are impaired by the medical treatment guidelines nor is the right to reasonable and necessary medical treatment diminished.

To date, no courts have interpreted the retroactive or prospective application of La.R.S. 23:1203.1. Considering the language of La.R.S. 23:1203.1 and the arguments of the parties, we conclude that the retroactive application of La.R.S. 23:1203.1 to work-place accidents that arose prior to its effective date does not remove any substantive right to medical care, and thus, is procedural in nature. Further, Cook has not shown how she has lost any right to medical care as a result 18of the retroactive application of La.R.S. 23:1203.1. Lastly, we find that the language of the statute evidences the legislature’s intent for La.R.S. 28:1203.1 to apply retroactively. Accordingly, the WCJ correctly found La.R.S. 23:1208.1 applicable to Cook’s claim for medical treatment for her on-the-job injury sustained prior to the effective date of La.R.S. 23:1203.1. The writ is denied.

WRIT DENIED.

      . In his August 21, 2012 Progress Report, Dr. Gleason noted that because Cook had a pacemaker, she could not undergo an MRI.

      . We note that the WCJ made several errors when quoting La.R.S. 23:1203.1(1) at the hearing. The correct wording of the statute follows:
      After the promulgation of the medical treatment schedule, throughout this Chapter, and notwithstanding any provision of law to the contrary, medical care, services, and treatment due, pursuant to R.S. 23:1203 et seq., by the employer to the employee shall mean care, services, and treatment in accordance with the medical treatment schedule.

      . The statute was later amended by 2010 La. Acts 619 and 2012 La. Acts 573, neither of which affected Section I.

      . The statute at issue in Stelly was La.R.S. 23:1032, entitled "Exclusiveness of rights and remedies; employer’s liability to prosecution under other laws.”


author: JOY COSSICH LOBRANO, Judge.

text:
    Roberto LLOPIS, D.D.S. v. The Louisiana STATE BOARD OF DENTISTRY, et al.
    No. 2012-CA-1286.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 12, 2013.
    Rehearing Denied Oct. 2, 2013.

      Francis B. Mulhall, Metairie, La, for Plaintiff/Appellant.
    Arthur F. Hickham, Jr., Harahan, La, for Defendants/Appellees.
    Brian M. Bégué, New Orleans, La, Defendant/Appellee.
    (Court Composed of Judge MAX N. TOBIAS, JR., Judge EDWIN A. LOMBARD, Judge JOY COSSICH LOBRANO).
   JOY COSSICH LOBRANO, Judge.

| ]The plaintiff, Roberto Llopis, D.D.S., appeals the dismissal of his Petition for Judicial Review of Administrative Order/Ruling and/or For Writ of Mandamus; Seeking Declaratory and/or Injunctive Relief; and Civil Penalties and Attorney Fees Pursuant to the Louisiana Open Meetings Law (“Petition”) on peremptory exceptions of no cause of action in favor of the defendants, the Louisiana State Board of Dentistry (“the Board”); C. Barry Ogden, Executive Director of the Board; Brian Bégué, Counsel to the Board; and Rommel Madison, D.D.S., President of the Board. For the reasons that follow, we affirm the trial court judgments.

According to the Petition, Dr. Llopis obtained a license to practice dentistry in Louisiana in 1993. In 2003, the Board commenced an investigation of Dr. Llopis based on his professional conduct, but did not complete it because he was called to active military duty. In 2006, Dr. Llopis surrendered his Louisiana pícense; the Board accepted it with no mention of the 2003 investigation or any sanctions. By 2010, Dr. Llopis was practicing dentistry in Washington State. However, that same year he was offered a teaching position at Louisiana State University School of Dentistry (“LSUSD”). Because the position required him to have a Louisiana license, in October 2010, Dr. Llopis applied to the Board for a restricted license, which would have allowed him to teach and practice only at LSUSD. On November 1, 2010, Dr. Llopis received an e-mail from A. Dale Ehrlich, D.D.S., a department chairman at LSUSD, indicating that the Board had given him (Dr. Ehrlich) the impression that it would not act on Dr. Llopis’ application any time soon and, without a Louisiana license, he could not teach at the dental school. Thereafter, Dr. Llopis withdrew his application for a restricted license and filed an application for licensure by credentials, based on his Washington license.

The Petition further alleges that on November 16, 2010, counsel for Dr. Llopis contacted the Board, inquiring about a temporary license for his client. Mr. Ogden informed counsel that the Board did not issue temporary licenses. Meanwhile, in a prior telephone conference, Mr. Bégué informed counsel that the Board had never completed its 2003 investigation into Dr. Llopis’ professional conduct and would consider his request for a license as a “Request for Reconsideration of Prior Sanctions.” In a later e-mail, Mr. Bégué informed counsel that in order for Dr. Llopis to obtain a Louisiana license, he would have to re-apply and meet with a Board representative to discuss resolving the 2003 ^investigation and the conditions he would have to meet in the event the Board was to issue him a license.

The Petition continues to allege that on July 19, 2011, Dr. Llopis filed a “Petition for Declaratory Order” with the Board pursuant to Louisiana Administrative Code (“LAC”), Title 46, Part XXXIII, § 1401, and La. R.S. 49:962, requesting the Board to issue a declaration or order addressing the following ten questions:

1.Whether La. R.S. 37:763(0 regarding the surrender of a license to the Board was in full force and effect in November 2006, when Dr. Llopis surrendered his license?
2. Whether, at the time Dr. Llopis surrendered his license in 2006, he was under investigation by the Board or did the Board violate its own statute by accepting the surrender of the license at that time?
3. Whether Dr. Llopis is entitled to apply for a temporary license pursuant to LAC, Title 46, Part XXXIII, § 120?
4. How can Dr. Llopis obtain an application to apply for a temporary license pursuant to LAC, Title 46, Part XXXIII, § 120?
5. Whether LAC, Title 46, Part XXXIII, § 116, titled: Reconsideration of Adverse Sanctions, applies or would apply to any request by Dr. Llopis for a Louisiana dental license at this time considering the circumstances of his case?
6. What is the procedure for submission for a Request for Reinstatement of a license that has never been disciplined, and that was surrendered and accepted without conditions and/or restrictions?
7. What statute(s), rule(s), policy or policies provide(s) the guidelines specific to the procedure for submission of a Request for Reinstatement of a license that has never been disciplined, and that was surrendered and accepted without conditions or restrictions?
|48. What statute(s), rule(s), policy or policies and/or guidelines would require Dr. Llopis to meet with the Board’s counsel or director in order to obtain a Louisiana dental license?
9. What rule(s) provide(s) the time requirements within which the Board shall act upon an application for a restricted license?
10. What policies and/or guidelines provide the time requirements within which the Board shall act upon an application for a restricted license; and where can such policy, policies and/or guidelines be found?

According to the Petition, the Board placed the Petition for Declaratory Order on the agenda of its August 5, 2011 meeting. At the meeting, Mr. Bégué read each question aloud and suggested a “ruling,” followed by a “sham” motion, a second, and a unanimous adoption by the Board of the “ruling.” On August 8, 2011, counsel for Dr. Llopis contacted the Board, requesting a copy of the Board’s written ruling on his Petition for Declaratory Order within seventy-two (72) hours. When the Board failed to respond, counsel again contacted the Board, threatening to file suit in the district court to enforce his client’s rights under the Open Meetings Law and the Louisiana Administrative Procedure Act (“APA”). The Board responded by providing Dr. Llopis with a copy of the minutes from its August 5, 2011 meeting rather than an official order.

Dissatisfied with the Board’s action, Dr. Llopis filed the Petition in the district court, asserting that the Board violated the Open Meetings Law by adopting Mr. Bégué’s recommendations without discussion. Dr. Llopis asked the court to: 1) declare the Board’s voting procedure in violation of the Open Meetings Law; 2) enjoin the Board from enforcing its answers to his questions; 3) declare the rulings |sof the Board void under the Open Meetings Law; 4) order the Board to address his Petition for Declaratory Order in an open meeting and issue an order in compliance with the APA; and, 5) award penalties, attorney fees and costs as provided for in the Open Meetings Law.

Mr. Bégué raised an exception of no cause of action. The Board, Mr. Ogden and Dr. Madison, collectively, raised an exception of no cause of action while the remaining Board members and Mr. Burk-halter, collectively, raised exceptions of no cause of action and insufficiency of service of process.

Following a hearing, the trial court rendered a judgment on March 14, 2012, sustaining the exception of no cause of action in favor of Mr. Bégué. Because the judgment failed to specifically dismiss Mr. Bé-gué as a defendant, he filed an Ex Parte Motion to Dismiss, asking the court to dismiss him from the suit. On April 4, 2012, the trial court granted the motion.

Meanwhile, the trial court had rendered a judgment on April 3, 2012, that sustained the exceptions of no cause of action in favor Mr. Ogden and Mr. Burkhalter as to the claims pertaining to the Open Meetings Law. The court also sustained the exception of insufficiency of service of process in favor Mr. Burkhalter and the individual Board members, except Dr. Madison, dismissing without prejudice the suit against them.

On April 19, 2012, the Board, Dr. Madison and Mr. Ogden (the remaining defendants in the case) filed an exception of no cause of action as to Dr. Llopis’ claims for “judicial review and administrative order/ ruling and/or for writ of mandamus; or declaratory and/or injunctive relief,” ie., the claims the trial court | fidid not consider at the initial hearing. Following a hearing, the trial court rendered a judgment on July 9, 2012, decreeing that the minutes of the August 5, 2011 meeting constituted an “Order of the Board,” and sustaining the exception of no cause of action, dismissing Dr. Llopis’ claim for judicial review as to all parties.

Dr. Llopis appealed the March 14 and April 4, 2012 judgments in favor of Mr. Bégué; the April 3, 2012 judgment insofar as it sustained the exception of no cause of action in favor of Mr. Ogden; and, the July 9, 2012 judgment.

On appeal, Dr. Llopis argues that the trial court erred in sustaining the exceptions of no cause of action in favor of Mr. Bégué and Mr. Ogden, as to his claims regarding the Open Meetings Law. He also contends that trial court erred in granting the exceptions of no cause of action in favor of the Board, Dr. Madison and Mr. Ogden, dismissing his claims for judicial review of the Board’s ruling on his Petition for Declaratory Order.

In reviewing a trial court’s ruling on an exception of no cause of action, the appellate court conducts a de novo review. Industrial Companies, Inc. v. Durbin, 2002-0665, pp. 6-7 (La.1/28/03), 837 So.2d 1207, 1213. “The function of the peremptory exception of no cause of action is to question whether the law extends a remedy against the defendant under the factual allegations of the petition.” Hoag v. State, 2004-0857, p. 9 (La.12/1/04), 889 So.2d 1019, 1025. “The peremptory exception of no cause of action is designed to test the legal sufficiency of the petition by determining whether the particular plaintiff is afforded a remedy in law based on the facts alleged in the pleading.” Id. No evidence may be [7introduced to support or controvert the objection that the petition fails to state a cause of action. La. C.C.P. art. 931. “The exception is triable on the face of the petition and, for the purpose of determining the issues raised by the exception, the well-pleaded facts in the petition must be accepted as true.” Industrial Companies, Inc., 2002-0665, p. 6, 837 So.2d at 1213.

La. R.S. 42:14, relative to meetings of public bodies to be open to the public, provides:

A. Every meeting of any public body shall be open to the public unless closed pursuant to R.S. 42:16,17, or 18.
B. Each public body shall be prohibited from utilizing any manner of proxy voting procedure, secret balloting, or any other means to circumvent the intent of this Chapter.
C. All votes made by members of a public body shall be viva voce and shall be recorded in the minutes, journal, or other official, written proceedings of the body, which shall be a public document.
D. Except school boards, which shall be subject to R.S. 42:15, each public body conducting a meeting which is subject to the notice requirements of R.S. 42:19(A) shall allow a public comment period at any point in the meeting prior to action on an agenda item upon which a vote is to be taken. The governing body may adopt reasonable rules and restrictions regarding such comment period.

La. R.S. 42:13(A) defines “meeting” and “public body” as follows:

(1) “Meeting” means the convening of a quorum of a public body to deliberate or act on a matter over which the public body has supervision, control, jurisdiction, or advisory power. It shall also mean the convening of a quorum of a public body by the public body or by another public official to receive information regarding a matter over which the public body has supervision, control, jurisdiction, or advisory power.
|r(2) “Public body” means village, town, and city governing authorities; parish governing authorities; school boards and boards of levee and port commissioners; boards of publicly operated utilities; planning, zoning, and airport commissions; and any other state, parish, municipal, or special district boards, commissions, or authorities, and those of any political subdivision thereof, where such body possesses policy making, advisory, or administrative functions, including any committee or subcommittee of any of these bodies enumerated in this paragraph.

Regarding civil penalties for violations of the Open Meetings Law, La. R.S. 42:28 provides:

Any member of a public body who knowingly and wilfully participates in a meeting conducted in violation of this Chapter, shall be subject to a civil penalty not to exceed one hundred dollars per violation. The member shall be personally liable for the payment of such penalty. A suit to collect such penalty must be instituted within sixty days of the violation.

Mr. Ogden and Mr. Bégué are not “public bodies” as defined in La. R.S. 42:13. Although a member of a public body who knowingly and wilfully participates in a meeting conducted in violation of the Open Meetings Law is subject to a civil penalty pursuant to La. R.S. 42:28, Dr. Llopis fails to allege in the Petition that either Mr. Ogden or Mr. Bégué was a member of the Board that acted on his Petition for Declaratory Order at the August 5, 2011 meeting. Absent such an allegation, Dr. Llopis does not have a cause of action against either Mr. Ogden or Mr. Bégué for violating the Open Meetings Law.

Nonetheless, citing Williams v. Board of Trustees for the Employees’ Retirement System of the Parish of East Baton Rouge, 94-1024 (La.App. 1 Cir. 4/7/95), 653 So.2d 1337, and Molinario v. Department of Public Safety and Corrections, 96-2026 (La.App. 1 Cir. 9/23/97), 700 So.2d 992, Dr. Llopis argues Mr. Ogden and Mr. Bégué are “public officers” as defined in La. R.S. 42:1, because they controlled the Board’s voting procedure.

The Williams case involved a suit by the former Parish Attorney for East Baton Rouge Parish who was forced to resign his position after being convicted of three felonies. After his conviction, but before resigning, Williams applied for disability retirement benefits, which were denied. He then sued the Board of Trustees for the Baton Rouge Employees’ Retirement System, appealing the denial of his application and seeking a declaratory judgment as to his rights under the system. The Board raised peremptory exceptions of no cause of action and no right of action, arguing that Williams was not a member of the retirement system when he applied for disability benefits because, upon his criminal conviction, he was automatically suspended from office pursuant to La. R.S. 42:1411 (the statute requiring automatic removal from office of any public officer who is convicted of a felony). The trial court sustained the exceptions. Williams appealed, arguing that he was not a public officer as contemplated by La. R.S. 42:1411. The First Circuit Court of Appeal disagreed, concluding Williams was a public officer pursuant to La. R.S. 42:1, stating:

If the individual acts as an agent of the state and exercises a portion of the sovereign power or if the office occupied involves a large degree of independence in which the individual is not under the direct supervision and control of an employer, then the individual is a public officer. State v. Haltom, 462 So.2d 662 (La.App. 1st Cir.1984).

Williams, 94-1024, at p. 4, 653 So.2d at 1340. The Court noted that while Williams was not an agent of the state exercising a portion of its sovereign power, his office did enjoy a large degree of independence and was not under the direct control and supervision of his employer, the Metropolitan Council. While the council could authorize Williams to issue written opinions on questions of law involving its official duties and draft ordinances and resolutions, his other duties were not subject to the council’s control. Id. at p. 5, 653 So.2d at 1340.

The Molinario case involved a petition for judicial review pursuant to the Corrections Administrative Remedy Procedure filed by an inmate against the Louisiana Department of Public Safety and Corrections (“DPSC”); Richard Stalder, secretary of DPSC; and an unnamed dental hygienist. Molinario alleged that upon his transfer to Hunt Correctional Facility, the prison dental hygienist terminated his dentist-ordered, soft-meal diet and, as a result, he was unable to eat for several days. Upon judicial review, the court dismissed the petition at Molinario’s costs, and he did not appeal. The defendants subsequently moved to fix attorney’s fees pursuant to La. R.S. 42:261(E) (the statute allowing a public official who successfully defends a suit against him arising out of the performance of the duties of his office to collect attorney’s fees from the party who filed the suit). The trial court denied the request. On appeal, the defendants argued that they were public officials and, therefore, entitled to attorney’s fees. The First Circuit found the dental hygienist was an employee of a state agency and not a public official under the statute. Molinario, 96-2026, at p. 3, 700 So.2d at 993. Although the Court found that Stalder was a public official for purposes of | T 1 determining the applicability of La. R.S. 42:261(E), id. at p. 4, 700 So.2d at 994, it found no evidence that he actually incurred attorney’s fees in defending the suit. Id. at p. 6, 700 So.2d 995. Rather, as the Court pointed out, the Louisiana Attorney General defended the suit against both DPSC and Stalder. Id. at pp. 5-6, 700 So.2d 995. Thus, the Court affirmed the trial court’s denial of the requests for attorney’s fees. Id. at p. 6, 700 So.2d 995.

We find Williams, supra, and Molinario, supra, inapplicable to the present case, because they do not address violations under the Open Meetings Law. Also, neither case holds that the Open Meetings Law provides a cause of action against a person who is not a member of the public body or board simply because he is a public official or an employee of the public body or board.

Next, Dr. Llopis argues the trial court erred by adjudging that the minutes of the August 5, 2011 board meeting constituted an “Order of the Board.” He claims the Board failed to comply with the procedural requirements of La. R.S. 49:958, by not issuing him a final decision that included findings of fact and conclusions of law.

The defendants, on the other hand, contend that Dr. Llopis filed his Petition for Declaratory Order pursuant to La. R.S. 49:962; thus, the Board’s August 5, 2011 meeting was not an “adjudication proceeding” requiring a final decision under La. R.S. 49:958. They emphasize that La. R.S. 49:962 establishes the procedure by which agencies address the applicability of statutes, rules and orders, while La. R.S. 49:958 applies to adjudication proceedings brought pursuant to La. R.S. 49:955, e.g., the Board intends to take action against a dentist’s license and |12must hold a contradictory hearing to adjudicate the matter. Also, the defendants point out that the procedure for judicial review of declaratory orders and rulings differs significantly from the procedure for judicial review of a final decision or order from an adjudication proceeding. See La. R.S. 49:968 and La. R.S. 49:964.

La. R.S. 49:962, relative to declaratory orders and rulings, provides:

Each agency shall provide by rule for the filing and prompt disposition of petitions for declaratory orders and rulings as to the applicability of any statutory provision or of any rule or order of the agency. Declaratory orders and rulings shall have the same status as agency-decisions or orders in adjudicated cases.

_JjAt the time Dr. Llopis filed his Petition for Declaratory Order, La. R.S. 49:958, relative to decisions and orders, provided:

A final decision or order adverse to a party in an adjudication proceeding shall be in writing or stated in the record. A final decision shall include findings of fact and conclusions of law. Findings of fact, if set forth in statutory language, shall be accompanied by a concise and explicit statement of the underlying facts supporting the findings. If, in accordance with agency rules, a party submitted proposed findings of fact, the decision shall include a ruling upon each proposed finding. Parties shall be notified either personally or by mail of any decision or order. Upon request, a copy of the decision or order shall be delivered or mailed forthwith to each party and to his attorney of record. The parties by written stipulation may waive, and the agency in the event there is no contest may eliminate, compliance with this Section.

Although La. R.S. 49:962 provides that declaratory orders are given the “same status” as agency decisions in adjudicated cases, they are distinct rulings. La. R.S. 49:951(1) defines “Adjudication” as the “agency process for the formulation of a decision or order” and La. R.S. 49:951(3) defines “Decision” or “order” as:

the whole or any part of the final disposition (whether affirmative, negative, in-junctive, or declaratory in form) of any agency, in any matter other than rule-making, required by constitution or statute to be determined on the record after notice and opportunity for an agency hearing, and including non-revenue licensing, when the grant, denial, or renewal of a license is required by constitution or statute to be preceded by notice and opportunity for hearing. [Emphasis added.]

Jj^The Board’s meeting on August 5, 2011, to consider Dr. Llopis’ Petition for Declaratory Order pursuant to La. R.S. 49:962, was not an agency hearing involving the grant, denial, or renewal of a dental license that required prior notice and an opportunity for hearing. Therefore, the Board, after acting on the petition, was not required to issue a final decision or order in compliance with La. R.S. 49:958. Considering that and the fact that Dr. Llopis alleged that the Board had sent him a draft of the minutes from the August 5, 2011 meeting, evidencing its ruling, we cannot say the trial court erred by ordering the minutes to constitute the “Order of the Board.”

Finally, Dr. Llopis argues that the trial court erred in sustaining the exception of no cause of action in favor of the Board, Dr. Madison and Mr. Ogden, dismissing his claims for judicial review of the Board’s ruling and for declaratory and/or injunc-tive relief.

As mentioned above, Dr. Llopis filed his Petition for Declaratory Order pursuant to La. R.S. 49:962, asking the Board to rule on the validity and/or applicability of various statutes, policies, and rules relating to the licensing process. La. R.S. 49:963 sets forth the procedure for seeking judicial review of the validity or applicability of agency rules and provides, in pertinent part:

A. (1) The validity or applicability of a rule may be determined in an action for declaratory judgment in the district court of the parish in which the agency is located.
(2) The agency shall be made a party to the action.
C. The court shall declare the rule invalid or inapplicable if it finds that it violates constitutional provisions or exceeds the statutory authority of the | ^agency or was adopted without substantial compliance with required rule-making procedures.
D. An action for a declaratory judgment under this Section may be brought only after the plaintiff has requested the agency to pass upon the validity or applicability of the rule in question and only upon a showing that review of the validity and applicability of the rule in conjunction with review of a final agency decision in a contested adjudicated case would not provide an adequate remedy and would inflict irreparable injury.

To assert an action for a declaratory judgment under La. R.S. 49:963, the petitioner must demonstrate both the absence of an adequate remedy under administrative law and irreparable injury. See La. R.S. 49:963(D); Liberty Mutual Ins. Co. v, Louisiana Insurance Rating Commission, 96-0793, p. 11 (La.App. 1 Cir. 2/14/97), 696 So.2d 1021, 1028. Furthermore, only after the trial court determines that a declaratory judgment is appropriate under La. R.S. 49:963(D) is injunctive relief available to enforce it. Id. at p. 12, 696 So.2d at 1029 (citation omitted).

In this case, Dr. Llopis alleged in the Petition that the Board’s voting procedure violated the Open Meetings Law and the APA. However, he failed to allege that, in his attempt to obtain a restricted license, he exhausted his administrative remedies or suffered irreparable harm as a result of the Board’s ruling. Therefore, Dr. Llopis failed to state a cause of action for declaratory judgment and/or injunctive relief pursuant to La. R.S. 49:963. Hence, we find the trial court correctly sustained the exceptions of no cause of action in favor of the Board, Dr. Madison and Mr. Ogden, dismissing Dr. Llopis’ Petition.

Accordingly, for the above reasons, the trial court judgments are affirmed.

AFFIRMED.

      . La. R.S. 42:11 through 42:28.

      . In addition to Dr. Madison, Dr. Llopis sued the other 12 members of the Board. He also sued Peyton "Pete” Burkhalter, Co-Executive Director of the Board. Those 12 board members and Mr. Burkhalter raised exceptions of insufficiency of service of process, which the trial court granted on April 3, 2012, dismissing the suit, without prejudice as to them pursuant to La. C.C.P. art. 932(A). Dr. Llopis did not appeal that ruling; thus, that part of the April 3, 2012 judgment is now final.

      . La. R.S. 49:950 et seq.

      . See n.2 supra.

      . Dr. Llopis also appealed the part of the April 3, 2012 judgment sustaining the exception of no cause of action in favor of Mr. Burkhalter, but that appeal is moot because Mr. Burkhalter is no longer a defendant. See n.2 infra.

      . The appellees, save Mr. Bégué, state in their brief that Dr. Llopis did not appeal the July 9, 2012 judgment. However, the record indicates that Dr. Llopis filed a motion and order for devolutive appeal of the July 9, 2012 judgment on July 15, 2012, and the trial court signed the order of appeal on July 19, 2012.

      . La. R.S. 42:1 defines "public office” and "public officer” as follows:
      As used in this title, the term "public” means any state, district, parish or municipal office, elective or appointive, when the office or position is established by the constitution or laws of this state.
      "Public officer” is any person holding a public office in this state.

      . La. R.S. 15:1177.

      . La. R.S. 49:955, relative to Adjudication; notice; hearing; records, provides:
      A. In an adjudication, all parties who do not waive their rights shall be afforded an opportunity for hearing after reasonable notice.
      B. The notice shall include:
      (1) A statement of the time, place, and nature of the hearing;
      (2) A statement of the legal authority and jurisdiction under which the hearing is to be held;
      (3) A reference to the particular sections of the statutes and rules involved;
      (4) A short and plain statement of the matters asserted.
      If the agency or other party is unable to state the matters in detail at the time the notice is served, the initial notice may be limited to a statement of the issues involved. Thereafter, upon application, a more definite and detailed statement shall be furnished.
      C. Opportunity shall be afforded all parties to respond and present evidence on all issues of fact involved and argument on all issues of law and policy involved and to conduct such cross-examination as may be required for a full and true disclosure of the facts.
      D. Unless precluded by law, informal disposition may be made of any case of adjudication by stipulation, agreed settlement, consent order, or default.
      E. The record in a case of adjudication shall include:
      (1) All pleadings, motions, intermediate rulings;
      (2) Evidence received or considered or a resumé thereof if not transcribed;
      (3) A statement of matters officially noticed except matter so obvious that statement of them would serve no useful purpose;
      (4) Offers of proof, objections, and rulings thereon;
      (5) Proposed findings and exceptions;
      (6) Any decision, opinion, or report by the officer presiding at the hearing.
      F. The agency shall make a full transcript of all proceedings before it when the statute governing it requires it, and, in the absence of such requirement, shall, at the request of any party or person, have prepared and furnish him with a copy of the transcript or any part thereof upon payment of the cost thereof unless the governing statute or constitution provides that it shall be furnished without cost.
      G. Findings of fact shall be based exclusively on the evidence and on matters officially noticed.

      . La. R.S. 49:958 was amended by Acts 2012, No. 289, § 1, to allow parties to be notified personally, by mail, or by electronic means of any decision or order.


author: GREMILLION, Judge.

text:
    In re ELEANOR PIERCE (MARSHALL) STEVENS LIVING TRUST.
    No. CA 13-939.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 25, 2013.

      Henry Camille Perret, Jr., Jude C. David, Perret Doise, L.L.C., Lafayette, LA, Kenneth Michael Wright, Attorney at Law, Lake Charles, LA, for Appellee, Preston Marshall.
    Scott James Scofield, Phillip W. DeVil-biss, Scofield, Gerard, Pohorelsky, Gal-laugher & Landry, L.L.C., Michael H. Schwartzberg, Vamvoras & Schwartzberg, Lake Charles, LA, for Appellant, Finley Hilliard.
    Court composed of SYLVIA R. COOKS, JIMMIE C. PETERS, and SHANNON J. GREMILLION, Judges.
   GREMILLION, Judge.

| iThis court issued a rule for the appellant, Finely Hilliard, to show cause, by brief only, why the appeal in this case should not be dismissed as having been taken from a partial judgment which has not been designated as appealable pursuant to La.Code Civ.P. art. 1915(B). Mr. Hilliard has filed a response to this court’s rule. For the reasons assigned in this opinion, we maintain the appeal and recall the rule to show cause. We deny the additional relief for which Mr. Hilliard prays in his response to this court’s rule as procedurally inappropriate.

The instant action was initiated by the filing of the Petition to File Trustee’s Account and to Fix Trustee Fees by Finely L. Hilliard, in his capacity as Trustee of the Eleanor Pierce (Marshall) Stevens Living Trust. However, this action has since devolved into a contest over who are the proper trustees for this living trust. In the course of the action, the trial court entered judgment on February 15, 2013, declaring that Mr. Hilliard was removed from his trustee position through resignation effective as of 3:15 P.M., February 4, 2013, and that the co-trustee, Preston Marshall, has effectively removed Mr. Hil-liard as co-trustee as of that same moment through the same action of attempting to accept the resignation of Mr. Hilliard.

Although Mr. Hilliard filed a motion for new trial on March 8, 2013, Mr. Hilliard also filed a motion and order for appeal on March 18, 2013. This court lodged the record in this appeal on August 20, 2013. The following day, this court issued the subject rule to show cause.

In response to the rule to show cause, Mr. Hilliard first points out that a specific statutory provision affords him the right to appeal the judgment removing him as a co-trustee. Louisiana Revised Statutes 9:1791 reads:

A judgment or an order of court appointing or removing a trustee shall be executed provisionally. An appeal from an order or judgment appointing or removing a trustee must be taken and the security therefor furnished within thirty days from the date of the order or judgment notwithstanding the filing of an application for a rehearing or a new trial. The appeal shall be docketed and heard by preference.

Mr. Hilliard contends in brief to this court that the above statute is the more specific provision in the law on trusts and that this more specific provision takes precedence over the more general provision of La. Code CivJP. art. 1915(B). We agree.

This court faced a similar dilemma in Seaman v. Seaman, 2010-1295 (La.App. 3 Cir. 12/15/10), 54 So.3d 756, wherein the trial court had entered a partial judgment modifying custody to the parties’ minor children, but expressly left other matters in this domestic suit for decision at a later date. This court noted that the legislature did not expressly provide for any exceptions to the application of La.Code Civ.P. art.1915 in that code article. Nevertheless, this court observed that in Rhodes v. Lewis, 2001-1989 (La.5/14/02), 817 So.2d 64, the supreme court had carved out an exception to the application of this procedural statute to workers’ compensation cases, finding that the principles underlying the very creation of the workers’ compensation scheme would be impaired by the application of Article 1915 to such actions. Thus, this court concluded:

Turning to the instant case, we find an even more persuasive reason for holding that La.Code Civ.P. art. 1915(B) should not apply to the judgment appealed. As a general rule of statutory construction, where harmonization of statutes dealing with the same subject matter is not possible, the more specific provision prevails over the more general. See LeBreton v. Rabito, 97-2221 (La.7/8/98), 714 So.2d 1226. Unlike the Workers’ Compensation Act which has no unique provision pertaining to the delay for seeking an appeal, Louisiana does have specific statutes dictating the delay for seeking an appeal from a judgment as to custody or visitation. Thus, as quoted above, La.Code Civ.P. arts. 3942 and 3943 impose the shortened thirty day | ¡¡time period for appealing custody, visitation, and support matters, rather than permitting a party to take up to sixty days to take a devolutive appeal as provided in the more general statute of La.Code Civ.P. art. 2087.
Moreover, unlike the reasoning in Rhodes, 817 So.2d 64, wherein the court was concerned with the delays that could result from permitting piecemeal appeals, we find that in child custody and visitation cases, piecemeal appeals can be appropriate. Thus, we find no logical reason for postponing an immediate appeal of a judgment of custody simply because the parties may have outstanding issues pertaining to support or visitation matters. Therefore, we hold that the appealed judgment in the instant case did not have to have a designation by the trial court as to its finality and appealability before the plaintiff could have filed her motion and order for appeal.

2010-1295, p. 5, 54 So.3d at 759-60. Likewise, in the instant case, we hold that the more specific provision of La.R.S. 9:1791 must prevail over the more general rule of La.Code Civ.P. art.1915. Therefore, we hereby recall this court’s rule of August 21, 2013, for good cause shown and maintain the appeal.

This court also notes, though, that in the brief filed in response to this court’s rule, Mr. Hilliard insists that this court should remand this case to the trial court for full discovery and trial by ordinary proceedings. Mr. Hilliard has not filed a motion for remand, and we find that the argument on this issue addresses itself to the very issues on appeal rather than to the limited procedural issue presented by the rule to show cause. Therefore, we find that Mr. Hilliard has sought relief from this court through a procedurally inappropriate means and to the extent Mr. Hilliard has asked this court to act on his request, this request is denied.

RULE TO SHOW CAUSE RECALLED,