author: SAUNDERS, Judge.

text:
    LOUISIANA DEPARTMENT OF REVENUE v. APECK CONSTRUCTION, INC.
    2017-738
    Court of Appeal of Louisiana, Third Circuit.
    February 28, 2018
    Nicole F. Gould Frey, David R. Cassidy, Breazeale, Sachse & Wilson, LLP, P. O. Box 3197, Baton Rouge, LA 70821-3197, (225) 387-4000, COUNSEL FOR DEFENDANT/APPELLEE: Apeck Construction, LLC
    Aaron D. Long, Antonio C. Ferachi, Brandea P. Averett, Adrienne Quillen, Attorneys for the Secretary of the Department of Revenue, State of Louisiana, P. O. Box 4064, Baton Rouge, LA 70821-4064, (225) 219-2080, COUNSEL FOR PLAINTIFF/APPELLANT: Louisiana Department of Revenue
    Court composed of John D. Saunders, Marc T. Amy, and D. Kent Savoie, Judges.
   SAUNDERS, Judge.

This is a tax case wherein the trial court found that the Louisiana Department of Revenue (LDR) failed to carry its burden to prove that the taxpayer owed taxes on purchases on materials for resale or on purchases of aggregates. Further, the trial court found that the taxpayer did not owe tax on freight charges to get aggregate into the State via railcar when those charges were passed on to the taxpayer from its sister company.

LDR appeals the trial court's judgment. We affirm, in part, and reverse, in part.

FACTS AND PROCEDURAL HISTORY :

LDR conducted a sales and use tax compliance audit of the books and records of Apeck Construction, LLC (AC) for the tax period of January 1, 2007, through December 31, 2009. LDR initially assessed AC with eleven schedules, one for each tax issue involved. After resolution of several issues, only Schedules 2, 5, and 6a remained. Schedule 2 lists tax assessed on purchases of materials used in projects for Graybar Electrical Company, Inc. (Graybar) in which AC invoiced materials and labor separately under multiple contracts dealing with work to be performed at Fort Polk. Graybar's contract with the United States Government was attached as an Exhibit to each of the contracts between Graybar and AC. Further, Graybar gave AC certificates of tax exemption issued by LDR and, according to AC, claimed to be exempt from any taxes. As such, AC did not collect any taxes from its transactions with Graybar.

Schedule 6a involves similar issues to Schedule 2, but does not involve Graybar. Schedule 5 is made up of railroad leasing charges accrued by Williams Equipment Services, LLC (Williams Equipment) and Apeck Aggregate Supply, LLC (AA) in getting aggregates from Texas into Louisiana. Williams Equipment and/or AA then passed those charges through to AC separately from the aggregates. No sales tax was collected from AC on the amount arbitrated to the railroad leasing charges. Williams Equipment, AA, and AC share common ownership.

LDR filed suit to collect sales and use tax on Schedules 2, 5, and 6a. After hearing testimony from two employees of LDR and the owner of AC, Williams Equipment, and AA, the trial court ruled that the burden was on LDR to prove that any taxes were owed on the transactions in question: purchases for Graybar projects and purchases of aggregate. The trial court found that the purchases by AC for the Graybar projects were sales for resales and, therefore, not taxable, such that LDR failed to sustain its burden. The trial court also found that freight charges are not subject to tax. Thus, the trial court denied LDR the taxes sought from AC though Schedules 2, 5, and 6a. LDR files this appeal, alleging five assignments of error.

ASSIGNMENTS OF ERROR:

1. The trial court committed legal error in incorporated [sic] into the construction contracts between Apeck and Graybar certain provisions from Graybar's contract with the United States Government regarding when title to the tangible personal property transferred, when the Government was not a party to those contracts and when the Government's provisions specifically contradicted the express agreements between the parties.
2. The trial court committed error is [sic] finding that title of the tangible personal property transferred from Apeck to Graybar upon delivery of the property to Fort Polk.
3. The trial court committed error in ruling that Apeck reasonably relied upon a resale certificate and blanket exemption certificate presented by Graybar such that the doctrine of equitable estoppel applies to prevent the Department from assessing Apeck with use tax for its own purchases of the tangible personal property at issue here.
4. The trial court committed legal error in ruling that the exception in La. R.S. 47:305.50, which concern the lease of railcars, applied such that the cost to Appek [sic] Aggregate Supply, LLC and Williams Supply, LLC of getting the aggregate to market by railcar
did not form part of the taxable sales price when such costs were included in the total costs they charged to Apeck for the aggregate.
5. The trial court committed legal error in ruling that the Departments [sic] longstanding definition of "sales price" located in its regulation at LAC 61:I.4301 was not valid when it states that any part of the sales prices that is related to costs incurred by the vendor to bring the product to market or make the product available to customers becomes part of the tax base and is subject to sales tax and that costs included in the sales prices are freight or shipping costs from the supplier to the vendor with such costs not be excludable from the taxable sales price.

ASSIGNMENTS OF ERROR NUMBERS ONE, TWO AND THREE:

LDR's first three assignment of errors deal with use taxes it claims are owed by AC, as a contractor, on all materials AC consumed in the performance of various projects. Schedule 2 lists the tax LDR assessed on the purchases of material used in projects AC performed for Graybar in which AC invoiced materials and labor. Schedule 6a presents the same issues as those in Schedule 2, but are purchases by AC that LDR claims do not involve Graybar.

AC counters that ownership of the materials at issue in Schedules 2 and 6a transferred prior to installation. Thus, according to AC, the materials were sold prior to consumption, i.e., they were sales for resale. Moreover, AC argues that even if the transactions had been shown to be taxable, it detrimentally relied on Graybar's exemption certificate issued by LDR.

The burden to prove that a taxpayer owes tax is on the Department. See Bridges v. Geoffrey, Inc. , 07-1063 (La.App. 1 Cir. 2/8/08), 984 So.2d 115, writ denied , 08-547 (La. 4/25/08), 978 So.2d 370.

Where factual findings are pertinent to the interpretation of a contract, those factual findings are not to be disturbed unless manifest error is shown. However, when appellate review is not premised upon any factual findings made at the trial level, but is, instead, based upon an independent review and examination of the contract on its face, the manifest error rule does not apply. In such cases, appellate review of questions of law is simply whether the trial court was legally correct or legally incorrect. (citations omitted).

Evangeline Parish Sch. Bd. v. Energy Contr. , 617 So.2d 1259, 1265 (La.App. 3 Cir.), writ denied , 624 So.2d 1228 (La.1993) (quoting Borden, Inc. v. Gulf States Utilities Co. , 543 So.2d 924, 928 (La.App. 1 Cir.), writ denied , 545 So.2d 1041 (La.1989) ). Contrarily, "[w]hen a trial court's interpretation of a contract is not based upon any factual findings, but, rather, is based upon a review of the contract's language, the manifest error standard of review does not apply." Derouen v. Nelson , 09-467, p. 3 (La.App. 3 Cir. 3/10/10), 32 So.3d 1079, 1082.

"Contracts have the effect of law for the parties" and the "[i]nterpretation of a contract is the determination of the common intent of the parties." The reasonable intention of the parties to a contract is to be sought by examining the words of the contract itself, and not assumed. "When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties' intent." Common intent is determined, therefore, in accordance with the general, ordinary, plain and popular meaning of the words used in the contract. "Accordingly, when a clause in a contract is clear and unambiguous, the letter of that clause should not be disregarded under the pretext of pursuing its spirit, as it is not the duty of the courts to bend the meaning of the words of a contract into harmony with a supposed reasonable intention of the parties." However, even when the language of the contract is clear, courts should refrain from construing the contract in such a manner as to lead to absurd consequences. Most importantly, a contract "must be interpreted in a common-sense fashion, according to the words of the contract their common and usual significance." Moreover, a contract provision that is susceptible to different meanings must be interpreted with a meaning that renders the provision effective, and not with one that renders it ineffective. Each provision in a contract must be interpreted in light of the other provisions so that each is given the meaning suggested by the contract as a whole.

Clovelly Oil Co., LLC v. Midstates Petroleum Co. , LLC , 12-2055, pp. 5-6 (La. 3/19/13), 112 So.3d 187, 192 (footnotes omitted).

First, LDR asserts that the trial court committed legal error in incorporating provisions from Graybar's contract with the United States Government into the contracts between AC and Graybar regarding when title to the property transferred relative to delivery, when the Government was not a party to those contracts between AC and Graybar and when the Government's provisions specifically contradicted the express agreements between AC and Graybar. Next, according to LDR, the trial court erred in finding that title of the tangible personal property transferred from AC to Graybar upon delivery of the property to Fort Polk. Finally, LDR contends that the trial court erred in ruling that AC reasonably relied upon a resale certificate and blanket exemption certificate presented by Graybar such that the doctrine of equitable estoppel applies to prevent it from assessing AC with use tax for its own purchases of the tangible personal property at issue here.

Regarding whether the trial court was legally correct in incorporating provisions from Graybar's contract with the Government, the contracts between AC and Graybar clearly reference the DLA Subcontract Agreement between Graybar and the Government, and that contract is included as an exhibit to the contracts between AC and Graybar. Thus, while LDR chooses to use the word "incorporating" to describe what the trial court did in this matter, the reality is that the trial court simply looked to the language of the contract between Graybar and the Government to help determine whether LDR had carried its burden to prove that AC owed taxes on the property being delivered to Fort Polk. Nothing in the trial court's judgment suggests that the language of the contract between Graybar and the Government replaced any of the language of the contract between AC and Graybar. Nor is there any indication that the contract between Graybar and the Government was somehow incorporated into the contract between AC and Graybar.

LDR argues that the contract between AC and Graybar mandated that the property belonged to AC up until installation because they were construction contracts. Our reading of the contract between AC and Graybar finds no language related to when property ownership would transfer from AC to Graybar or the Government.

LDR reaches its conclusion based on language regarding when Graybar would pay AC for the property it delivered to Fort Polk. That language was such that Graybar would pay AC for the property "within thirty (30) days after Final Acceptance of Project." While it is true that the contract has this language, there is uncontradicted testimony in the record by Joseph Williams, the owner of AC, that the custom between the parties was not this way at all. He testified as follows:

Q. Explain to us the life cycle of these proposals, contracts, invoices, purchase orders.
A. Graybar comes to use for a different variety of material to be supplied to them and on some occasions they would [ ] tell us exactly what they wanted and then we would give them a proposal for the materials and the labor if labor was involved in it.... when they gave these out to us they specifically told us that these were tax exempt jobs and they gave us the tax exempt certificate. He said, you don't put taxes on this work when you give us this proposal.
....
... if we happen to be low bid on the proposal then we were given a purchase order. Once we were given a purchase order then they sometimes gave us a contract, sometimes we just worked off the purchase order number itself, and once that was done we actually went to work. Now, on some of these projects we would-as we delivered product to each site in every single case a ticket was involved in this work. Very seldom was a project where tickets were not involved in the work.
Q. What kind of tickets?
A. Would be delivery tickets of the materials.
Q. Okay.
A. Once delivery hits the ground that day we gave a copy of that ticket to the Government inspector....
....
Q. Earlier in this hearing the State drummed on and on about there only being payment after final acceptance of your work that might indicate you were delivering immovable property. Is that one hundred percent accurate?
A. That's one hundred percent incorrect.
Q. How so?
A. Because we invoiced on monthly pay schedules. If it's a large job at the end of the month they counted our tickets and whatever we had they allowed to bill percentage of the job.
Q. And you received payment, partial payment on contracts?
A. Yes, we did.

Moreover, regardless of when AC was paid for the materials, there is no language in the contract between AC and Graybar that dictates who owns the property after it is delivered and prior to installation. Rather, there are references to an attached exhibit, the contract between Graybar and the Government. Under that contract, it is written in FAR 52.212-4(j) that:

Risk of Loss.
Unless the contract specifically provides otherwise, risk of loss or damage to the supplies provided under this contract shall remain with the contractor until, and shall pass to the government upon:
(1) Delivery of the supplies to a carrier, if transportation is f.o.b. origin, or
(2) Delivery of the supplies to the Government at the destination specified in the contract, if transportation is f.o.b. destination.

The plain meaning of this language is that the risk of loss was no longer AC's once the property was delivered. This, coupled with the uncontroverted testimony that AC was customarily paid for materials prior to their installation after invoicing Graybar upon delivery to the Government, makes the trial court's finding that LDR failed to carry its burden of proof legally correct and reasonable, respectively. Thus, we find no error by the trial court in its judgment regarding AC's transactions with Graybar.

This finding renders discussion of whether the trial court's judgment that AC detrimentally relied on Graybar's exemption certificate moot. Much like the statement made regarding the exemption certificates in the trial court's judgment, any opinion we would make here would be advisory.

Next, we look to those issues dealing with Schedule 6a. In brief, LDR discusses Schedule 6a transactions minimally. No listed assignment of error addresses Schedule 6a specifically, but there is a paragraph dedicated to discussing the issue. Likewise, AC devotes very little argument to Schedule 6a except to note that the issues are the same as those under Schedule 2. LDR states the same, but suggests the Schedule 6a issues do not involve Graybar. AC says at least one item in Schedule 6a does involve a transaction with Graybar. The trial court mentioned Schedule 6a in open court stating, "the purchases listed in Schedule 2 and 6a were sales for resales."

LDR's argument in brief is that AC did not present any evidence to counter its testimony regarding Schedule 6a transactions. As such, according to LDR, the trial court's decision with respect to Schedule 6a is manifestly erroneous.

Ms. Annette Kotynia, a revenue tax auditor with LDR, testified that AC "did not pay sales or use tax on" materials it purchased. Specifically, she stated that AC didn't pay tax on "concrete sand that they went and picked up from TXI[,] hot mix from Prairie Contractors[, and] some field dirt or sand that they bought from Earl Dowden." Her testimony was corroborated by that of Mr. Arthur Champ III, assistant tax director for audit review, sales division with LDR. He testified that "everything related to the lease of a dirt pit was taken out of the Schedule." The remaining items in Schedule 6a dealt with "miscellaneous purchases of materials, field dirt, materials used for something else and, basically, it's just materials used on construction jobs[.]" In reviewing Schedule 6a, after removing those items related to lease of a dirt pit, we read that the remaining vendors are "EARL DOWDEN DIRT PIT, INV: COMMERCIAL BASE TO JOB," "TXI," "PRAIRIE

CONTRACTORS, INC," and "M & W TANK CONSTRUCTION CO." LDR is correct that there are no exemption certificates for any of these entities in the record. Thus, once again, discussion of reliance on exemption certificates is unnecessary. However, we note that the only two times the vendor "INV: COMMERCIAL BASE TO JOB" appears in Schedule 6a, the description reads "MATERIALS USED ON FOB PEASON GRAYBAR." If these transactions were under the contracts with Graybar addressed above, then LDR is not entitled to the tax assessed for them.

Regarding the remaining items in Schedule 6a, AC has pointed to no evidence in the record that contradicts Ms. Kotynia and Mr. Champ's testimony that they were taxable. Mr. Williams' testimony dealt with AC's transactions with Graybar and did not address those with the remaining vendors listed in Schedule 6a, and there are no exemption certificates in the record for the vendors listed in Schedule 6a. Accordingly, the trial court's finding that LDR failed to carry its burden to prove that AC owed any tax under Schedule 6a was manifestly erroneous. As such, we reverse the trial court's judgment in that regard subject to the reservation regarding the two transactions where Graybar is referenced in the description.

ASSIGNMENTS OF ERROR NUMBERS FOUR AND FIVE:

LDR's final two assignments of error with the trial court's ruling regarding freight. LDR's first assignment is that the trial court committed legal error in ruling that La. R.S. 47:305.50 applied such that the cost to AA and Williams Equipment of getting the aggregate to market by railcar did not form part of the taxable sales price when such costs were included in the total they invoiced AC. The second is that the trial court committed legal error in ruling that LDR's longstanding definition of "sales price" located in its regulation at

LA.ADMIN.CODE tit. 61, pt. I, § 4301 was not valid when it states that any part of the sales prices that is related to costs incurred by the vendor to bring the product to market or make the product available to customers becomes part of the tax base and is subject to sales tax and that costs included in the sales prices are freight or shipping costs from the supplier to the vendor with such costs not be excludable from the taxable sales price.

These assignments of error pose questions of law wherein the applicable standard of review is de novo. See Navarre Chevrolet, Inc. v. Begnaud , 16-465 (La.App. 3 Cir. 11/2/16), 205 So.3d 973, writ denied , 16-2122 (La. 1/13/17), 215 So.3d 248. When conducting a review of questions of law, appellate courts merely determine whether the lower court was legally correct. Sanchez v. La. Nursery , 09-1247 (La.App. 3 Cir. 4/7/10), 34 So.3d 1047.

Tax exemptions are strictly construed in favor of the State and "must be clearly and unequivocally and affirmatively established" by the taxpayer. Vulcan Foundry, Inc. v. McNamara , 414 So.2d 1193, 1197 (La.1982). Exclusions, on the other hand, are "construed liberally in favor of the taxpayers and against the taxing authority." Wyesco of Louisiana, LLC v. East Feliciana Parish School Board , 2000-1322, p. 5 (La.App. 1 Cir. 9/28/01), 809 So.2d 401, 404, citing Tarver v. World Ship Supply, Inc. , 615 So.2d 423, 426 (La.App. 4 Cir.1993), writ denied , 616 So.2d 672 (La.1993).

Harrah's Bossier City Inv. Co., LLC v. Bridges , 09-1916, p. 10 (La. 5/11/10), 41 So.3d 438, 446. Louisiana Revised Statutes 47:305.50(E)(1) states, "[t]he sales and use tax imposed by the state of Louisiana or any of its local political subdivisions or statewide taxing authorities shall not apply to rail rolling stock sold or leased in this state."

In the case before us, the trial court's judgment on this issue succinctly states that "freight charges are not subject to tax." The language in La.R.S. 47:305.50 clearly is such that the cost of leasing the railcar to bring the aggregate from Texas to AA or Williams Equipment is not taxable. The issue before us is whether that cost became taxable when AA or Williams Equipment passed it through to AC.

LDR argues that the rail lease costs associated with the transportation of the aggregate from Texas to AA and Williams Equipment would be considered part of their overhead, i.e., part of their selling price when those costs were passed through to AC, even though it was not included in the sale price they charged to AC on any invoice. Thus, the entire amount AC paid to either AA or Williams Equipment should be subject to tax per La.R.S. 47:301(13)(a) as part of the "sales price" of an item. Louisiana Revised Statutes 47:301(13)(a) defines "sales price" as:

the total amount for which tangible personal property is sold, less the market value of any article traded in including any services, except services for financing, that are a part of the sale valued in money, whether paid in money or otherwise, and includes the cost of materials used, labor or service costs, except costs for financing which shall not exceed the legal interest rate and a service charge not to exceed six percent of the amount financed, and losses; provided that cash discounts allowed and taken on sales shall not be included, nor shall the sales price include the amount charged for labor or services rendered in installing, applying, remodeling, or repairing property sold.

Mr. Champ testified that while "sales price" may be defined as such under La.R.S. 47:301(13)(a), LDR actually uses its longstanding definition of "sales price" located in its regulation at LA.ADMIN.CODE tit. 61, pt. I, § 4301, which states:

R.S. 47:301(13)(a) defines sales price as the total amount, including cash, credit, property, or services, that is received or paid for the sale of tangible personal property. Any part of the sales price that is related to costs incurred by the vendor to bring the product to market or make the product available to customers becomes part of the tax base and is subject to sales tax even if a separate charge is made on the invoice.

The fourth circuit, in Pontchartrain Materials Corp. v. Plaquemines Parish Government , 03-1444 (La.App. 4 Cir. 3/31/04), 871 So.2d 1171, writ denied , 04-1093 (La. 9/3/04), 882 So.2d 606 and writ denied ,

04-1152 (La. 9/3/04), 882 So.2d 607, found that freight charges were not part of the "sales price" for purposes of imposing a tax. The basis for the ruling is that "[t]he plain language used to define sales price does not provide for the inclusion of transportation and freight charges as part of its taxable base." Id. at 1175. The fourth circuit looked to the language in our Legislatively-created La.R.S. 47:301(13)(a) to reach this conclusion. Id.

LDR's argument that "freight in" constitutes overhead that becomes part of the sales price is not based on Legislatively-created law, nor is it based on jurisprudence. The testimonies of Ms. Kotynia and Mr. Champ assume that a business will pass the "freight in" costs to the buyer of the product so as not to take a loss on bringing the product to market. While this line of thinking may seem reasonable, it can also apply to any costs to bring a product to market, even those that are specifically excluded by law as not taxable. To reiterate, the burden to prove that a taxpayer owes tax is on the Department. Geoffrey , 984 So.2d 115. LDR has provided no such proof.

Given this burden of proof, we agree with the fourth circuit and find no merit to these assignments of error. Accordingly, we affirm the trial court's judgment regarding Schedule 5.

CONCLUSION:

The Louisiana Department of Revenue raises five assignments of error. We find no error by the trial court in its judgment regarding Apeck Construction, LLC's tax burden in relation to transactions with Graybar Electrical Company, Inc. Further, we find no error by the trial court in finding that Apeck Construction owed no tax on freight. However, we reverse the trial court's judgment regarding the specified items in Schedule 6a. Total costs in the amount of $3,687.11 are assessed against the Louisiana Department of Revenue.

AFFIRMED, IN PART, REVERSED, IN PART.


source: Caselaw Access Project

author: SAVOIE, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Cassandra WARD
    17-788
    Court of Appeal of Louisiana, Third Circuit.
    February 28, 2018
    Annette F. Roach, Louisiana Appellate Project, Post Office Box 1747, Lake Charles, Louisiana 70602-1747, (337) 436-2900, COUNSEL FOR DEFENDANT/APPELLANT: Cassandra Ward
    Hon. Asa Allen Skinner, District Attorney, Thirtieth Judicial District Court, Post Office Box 1188, Leesville, Louisiana 71496-1188, (337) 239-2008, COUNSEL FOR APPELLEE: State of Louisiana
    Court composed of John D. Saunders, Marc T. Amy, and D. Kent Savoie, Judges.
   SAVOIE, Judge.

Defendant, Cassandra Ward, was indicted for obstruction of justice for tampering with evidence, a violation of La.R.S. 14:130.1(A)(1)(a), on September 4, 2014. She was originally arrested for second degree murder, a violation of La.R.S. 14:30.1, however, the grand jury indicted her on the lesser charge. Her co-defendant, Jose Israel Ayala, III, was indicted for second degree murder and obstruction of justice. Another co-defendant, Matthew David Andrews, was also indicted for obstruction of justice.

Defendant originally entered a plea of not guilty but changed her plea to guilty as charged on September 2, 2016. Defendant had previously filed an amended a motion to suppress; that motion was dismissed at Defendant's request during the plea hearing. The trial court sentenced Defendant to thirty years at hard labor, with credit for time served, and ordered to pay $150 for preparation of her presentence investigation (PSI) report. Defendant filed a motion to reconsider her sentence, and the trial court denied it on July 5, 2017, indicating it had already considered the factors listed in Defendant's motion.

Appellate counsel has filed a brief pursuant to Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), alleging no non-frivolous issues exist on which to base an appeal and seeking to withdraw as Defendant's counsel. We grant counsel's motion to withdraw and affirm Defendant's conviction and sentence as discussed below.

FACTS

The State submitted this factual basis for Defendant's guilty plea at the plea hearing:

[D]uring a period of March 29th, 2014[,] the defendant, Cassandra Ward, did obstruct justice in that she did tamper with evidence which was reasonably relevant to a criminal investigation or proceeding with
knowledge that such acts or act, uh, would reasonably make or would have an effect on an actual or potential present, past, or future criminal investigation with the specific intent to distort the results of that criminal proceeding in that she did remove and, uh, move and did remove evidence of the second degree murder of James Stephens. In particular, the State would contend that the defendant was present at 2490 Bailey Road when the victim arrived at that location-Mr. James Stephens-and was killed by an individual and co[-]defendant named "Jose Ayala." This was the second degree murder of Mr. Stephens. After the defendant, Cassandra Ward, did, with the specific intent to distort results of the subsequent criminal investigation did tamper with evidence by aiding in the removal of the body of Mr. James Stephens from 2490 Bailey Road in Vernon Parish to a location off Highway 1211 in Vernon Parish, Louisiana. Thereafter she did return to 2490 Bailey Road, the murder scene, uh, located here in Vernon Parish and did proceed to clean evidence of the murder by using bleach, uh, to clean the porch of the home, by using bleach to-to clean-to clean blood from the premises, uh, ultimately, uh, having bleach make contact with her shoes and subsequently the State recovered those said shoes from Mrs. Ward. Also, the State would contend that she did, uh, take the weapons and the digging im-implements from that location and did dispose of them at a location over in Texas, which were ultimately recovered. Uh, the State would also contend that, at some point thereafter of March the 29th, 2014, that she did return to the body of Mr. Stephens located out at 1211 and did, at some point, along with the co[-]defendant did tamper with the body. Uh, subsequent to her arrest, she did give statements, uh, supporting the facts that I've, uh, recited here in this court, uh, on several occasions.

Defense counsel did not dispute the recitation of the facts. When the trial judge asked Defendant directly if those facts were correct, she responded, "Yes, sir."

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, we review all appeals for errors patent on the face of the record. After reviewing the record, we find no errors patent.

ANDERS ANALYSIS

In State v. Benjamin , 573 So.2d 528 (La.App. 4 Cir. 1990), the fourth circuit explained the analysis based on Anders , 386 U.S. 738, 87 S.Ct. 1396 :

When appointed counsel has filed a brief indicating that no non-frivolous issues and no ruling arguably supporting an appeal were found after a conscientious review of the record, Anders requires that
counsel move to withdraw. This motion will not be acted on until this court performs a thorough independent review of the record after providing the appellant an opportunity to file a brief in his or her own behalf. This court's review of the record will consist of (1) a review of the bill of information or indictment to insure the defendant was properly charged; (2) a review of all minute entries to insure the defendant was present at all crucial stages of the proceedings, the jury composition and verdict were correct and the sentence is legal; (3) a review of all pleadings in the record; (4) a review of the jury sheets; and (5) a review of all transcripts to determine if any ruling provides an arguable basis for appeal. Under C.Cr.P. art. 914.1(D) this Court will order that the appeal record be supplemented with pleadings, minute entries and transcripts when the record filed in this Court is not sufficient to perform this review.

Benjamin , 573 So.2d at 531. The Louisiana Supreme Court approved the fourth circuit's analysis in State v. Mouton , 95-981 (La. 4/28/95), 653 So.2d 1176.

Pursuant to Anders , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493, and State v. Jyles , 96-2669 (La. 12/12/97), 704 So.2d 241, Defendant's appellate counsel filed a brief in which she considered Defendant's ability to appeal her sentence. Counsel noted Defendant pled guilty and was sentenced within the sentencing cap to which she agreed. Thus, her sentence is not subject to review on appeal. The trial court discussed the terms of the plea agreement, including a sentencing cap of thirty years, the State's agreement not to pursue other charges against Defendant arising out of this incident, and Defendant's agreement to testify truthfully against her co-defendants. Defendant indicated she understood and agreed to the sentencing cap. The trial court sentenced Defendant according to that agreement.

Louisiana Code of Criminal Procedure Article 881.2(A)(2) provides a "defendant cannot appeal or seek review of a sentence imposed in conformity with a plea agreement which was set forth in the record at the time of the plea." This court has held, based on this article, "[i]n an instance where the court sentences the defendant in accordance with the parties' recommendation for a specific sentence or a sentencing range, it is clear that review of the imposed sentence is precluded."

State v. Jordan , 98-101, p. 4 (La.App. 3 Cir. 6/3/98), 716 So.2d 36, 38. Thus, a defendant may not seek review of a sentence that falls under the sentencing cap to which he agreed. State v. Young , 96-195 (La. 10/15/96), 680 So.2d 1171.

Here, Defendant agreed to the sentencing cap the trial court imposed and cannot contest her sentence on appeal. Defense counsel correctly concluded Defendant cannot make a non-frivolous argument on appeal alleging an excessive sentence.

Defense counsel's brief also discussed the trial court's imposition of a $150 fee for Defendant's PSI report. The fee is to be paid upon Defendant's release from prison.

Louisiana Code of Criminal Procedure Article 875(A)(4) provides:

(a) If the court orders a presentence investigation to be conducted, the court shall simultaneously order the defendant to pay to the department an amount not to exceed one hundred fifty dollars to defray the cost of conducting the presentence investigation and preparing presentence investigation reports. The order to pay shall be included in the judgment.
(b) The amount to be paid by the defendant pursuant to this Subparagraph shall be determined by the Department of Public Safety and Corrections and shall be based on the defendant's ability to pay. In making this determination, the department may consider such factors as the defendant's income, property owned by the defendant, outstanding obligations of the defendant, and the number and ages of any dependents of the defendant.

Based on the language of this article, the trial court erred in ordering this fee as part of Defendant's sentence. Although we have not located jurisprudence on this issue, we find the correct interpretation of the article is that the trial court should order a defendant to pay $150 as part of the judgment ordering the PSI. The Department of Public Safety and Corrections should then determine the amount of the fee, not to exceed $150.

Although the trial court erred in ordering the fee as part of Defendant's sentence, this error does not warrant the denial of counsel's motion to withdraw. Counsel has fully addressed the issue in her Anders brief, and further discussion is unnecessary. The State has not contested defense counsel's argument. Further, the issue is more in the nature of an administrative matter; it does not concern Defendant's conviction, sentence, or any constitutional rights. Thus, we vacate the portion of Defendant's sentence ordering her to pay a fee of $150 at the time she is released from prison.

Pursuant to Anders and Benjamin , we have performed a thorough review of the record, including pleadings, minute entries, the charging instrument, and the transcripts and have confirmed the statements by counsel. Defendant was present and represented by counsel at all crucial stages of the proceedings, and she acknowledged her guilty plea on the plea form. The trial court correctly informed Defendant of her Boykin rights and discussed her possible sentences for obstruction of justice.

Our review of the record reveals no issues that would support an assignment of error on appeal beyond the potential issues addressed by counsel.

DECREE

Based on the foregoing, defense counsel's motion to withdraw is granted. We amend Defendant's sentence to delete the order to pay $150 upon her release from prison. Defendant's conviction and sentence are affirmed in all other respects.

CONVICTION AND SENTENCE AFFIRMED AS AMENDED. MOTION TO WITHDRAW GRANTED.


author: Judge Roland L. Belsome

text:
    Guido SUTTER v. CITY OF NEW ORLEANS
    NO. 2017-CA-0547
    Court of Appeal of Louisiana, Fourth Circuit.
    FEBRUARY 28, 2018
    Christopher J. Davidson, John A. E. Davidson, DAVIDSON & DAVIDSON, APLC, 2901 Independence Street, Suite 201, Metairie, LA 70006, COUNSEL FOR PLAINTIFF/APPELLANT
    Rebecca H. Dietz, CITY ATTORNEY, Churita H. Hansell, DEPUTY CITY ATTORNEY, Shawn Lindsay, Melissa S. Quigley, ASSISTANT CITY ATTORNEY, 1300 Perdido Street, City Hall-Room 5E03, New Orleans, LA 70112, COUNSEL FOR DEFENDANT/APPELLEE
    (Court composed of Judge Roland L. Belsome, Judge Sandra Cabrina Jenkins, Judge Regina Bartholomew Woods )
   Judge Roland L. Belsome

This is a code violation case concerning a French Quarter residence. The appeal stems from an administrative adjudication against the Plaintiff, Guido Sutter, by the City of New Orleans, through the Vieux Carré Commission (VCC). The Plaintiff appeals the trial court's February 16, 2017, judgment denying relief and affirming the VCC's administrative adjudication. For the reasons set forth below, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

The Plaintiff owns a residence located at 740 Barracks Street, in New Orleans, Louisiana, where he has claimed a homestead exemption for the last several years. On March 30, 2016, a VCC building inspector conducted an inspection of the property while workers were present, noting various violations. The violations included the following:

1. Working without required approval;
2. Roof repair without a permit;
3. Replacing gutters without a permit;
4. Damaged and missing glass doors;
5. Demolition by neglect;
6. Hazardous conditions due to portions of the building that may fall;
7. Defective or deteriorating walls;
8. Building not watertight due to deteriorated or ineffective waterproofing;
9. Deteriorated roof shingles;
10. Deteriorated doors;
11. Missing and deteriorated gutters;
12. Deteriorated trim;
13. Vegetation on the building;
14. Deteriorated paint.

Due to the alleged violations, a stop work order was issued. On the same day, the inspector mailed a Notice of Violation to the Plaintiff at his Barracks Street address. A Notice of Hearing concerning the alleged violations was mailed to the Plaintiff on May 6, 2016. A subsequent inspection took place on May 13, 2016. Photographs from this date reveal that the Notice of Hearing was affixed to the property. When the Plaintiff failed to appear at the scheduled hearing on May 25, 2016, the hearing officer found the Plaintiff guilty of the fourteen violations. The Plaintiff was fined $7,000.00 ($500.00 per violation) and $75.00 in hearing costs.

On June 13, 2016, the Plaintiff filed a "Petition to Annul/Vacate Notice of Administrative Judgment and/or Appeal" in the trial court. The administrative record was lodged and the City filed a brief in opposition. The trial court held two hearings on the matter. After the first hearing, the trial court advised the parties to discuss a reduction in fines and to eliminate duplicate violations. Though the record is silent on the matter, the City stipulates that it reduced the violations from fourteen to nine, pursuant to the recommendation of the trial court after the first hearing. After the second hearing, the trial court denied the relief requested in the Plaintiff's petition; however, it reduced the violations from fourteen to nine. As a result, the Plaintiff was ordered to pay $4,575.00 in fines and hearing costs, as well as the City's deferred filing costs. The trial court also designated the appeal as final. This devolutive appeal followed.

STANDARD OF REVIEW

The general authority for local government to regulate land use is conferred by La. Const. Art. 6, § 17, which provides, in part:

Subject to uniform procedures established by law, a local governmental subdivision may (1) adopt regulations for land use,
zoning, and historic preservation, which authority is declared to be a public purpose; (2) create commissions and districts to implement those regulations; (3) review decisions of any such commission; and (4) adopt standards for use, construction, demolition, and modification of areas and structures.

Land use is subject to the police power of various governing bodies, and the courts will not interfere with the decisions of these bodies unless it is clear that their action is without any relation to the public health, safety, or general welfare. See Palermo Land Co., Inc. v. Planning Comm'n of Calcasieu Parish , 561 So.2d 482, 491 (La. 1990) ; Apasra Properties, LLC v. City of New Orleans , 09-0709, p. 8 (La. App. 4 Cir. 2/11/10), 31 So.3d 615, 621.

"In reviewing the [land use] decisions of public bodies [the City of New Orleans through the VCC in the instant case], the courts will not interfere with the functions of these bodies in the exercise of the discretion vested in them unless such bodies abuse this power by acting capriciously or arbitrarily." Herman v. City of New Orleans , 14-0891, p. 6 (La. App. 4 Cir. 1/21/15), 158 So.3d 911, 915 (citation omitted);

see also , Palermo , 561 So.2d at 492 ; Tucker v. City Council for City of New Orleans , 343 So.2d 396, 399 (La. App. 4th Cir. 2/15/77), (where this Court found that judicial review of an action of a local governing body in reversing or modifying a decision of a historic district commission is limited to deciding whether the governing body acted reasonably). "Generally, 'capriciously' has been defined as a conclusion of a commission when the conclusion is announced with no substantial evidence to support it, or a conclusion contrary to substantiated competent evidence." Herman , 158 So.3d at 915-16. "The word 'arbitrary' implies a disregard of evidence or the proper weight thereof." Id. at 916.

"An administrative agency's proceedings and decisions are presumed to be legitimate and correct, and the burden is on the appellant to demonstrate the grounds for reversal or modification." Vincent v. Munster , 16-0295, p. 4 (La. App. 4 Cir. 12/14/16), 206 So.3d 1040, 1044, reh'g denied (12/28/2016) (citations omitted); see also Vieux Carré Property Owners v. City of New Orleans , 14-0825, p. 7 (La. App. 4 Cir. 4/15/15), 216 So.3d 873,878, writ denied , 15-1147 (La. 9/18/15), 178 So.3d 149 ("The aggrieved party bears the burden of showing that the BZA [Board of Zoning Adjustments] decision is arbitrary, capricious, or manifestly erroneous in light of substantial evidence in the record. Absent this showing, the reviewing court may not substitute its own judgment for that of the BZA.") (internal citations omitted).

LAW AND ANALYSIS

In this appeal, the Plaintiff raises two assignments of error: 1) the trial court erred in failing to annul the administrative ruling in light of the VCC's failure to provide adequate notice of the hearing in accordance with due process of law; and 2) the trial court erred in upholding the findings of the VCC when the work being performed was for ordinary maintenance and did not require a permit.

In his first assignment of error, the Plaintiff argues that he was not provided adequate notice of the administrative hearing; therefore, he concludes that the administrative judgment is an absolute nullity.

The New Orleans Municipal Code of Ordinances Chapter 6, Section 6-36(c) states:

Prior to holding an administrative hearing pursuant to this article, the alleged violator shall be notified at least 15 days in advance of the date that such a hearing is scheduled. Notice shall be personally served or sent to the alleged violator by regular and certified or registered U.S. Mail at the address listed in the assessor's office of the parish. The date of the postmark shall be deemed to be the date of delivery. Any notification so sent and returned by the U.S. Post Office shall be considered as having fulfilled the notification requirement. Proof of notification and attempts at service shall be entered in the record for each case prior to the hearing.

Section 6-36(d) also requires a copy of the notice of violation to be affixed to the property in a prominent location at least five days before the hearing date.

The record demonstrates that the VCC gave adequate notice of the hearing as required by the City Code, in accordance with due process of law. The affidavit of Lillian McNee, One Stop Shop Adjudication Coordinator, reveals that the notice of hearing was mailed to the Plaintiff at the Barracks Street address, which was listed as the Plaintiff's address on the assessor's website. The record also contains a copy of a certified envelope that was returned to the Post Office undelivered. Finally, the record establishes that the notice was affixed to the front of the property on May 13, 2016, which is more than five days before the hearing, in accordance with Section 6-36(d). The written adjudication from May 25, 2016 further documents the notice attempt and timely posting, in accordance with 6-36(d).

The Plaintiff argues for the imposition of a higher burden upon the VCC regarding notification. He claims that the VCC had an obligation to mail notice to all reasonably available addresses to ensure notice was received. However,

Section 6-36 does not impose such a burden to fulfill the notice requirement. Specifically, Section 6-36(c) specifies that any notifications sent and returned shall be considered as fulfilling the notice requirement. Furthermore, in addition to the fact that the certified letter was returned, notice was affixed to the property in a prominent place. Under these circumstances, the VCC complied with the notice requirements under Section 6-36. Accordingly, the Plaintiff received adequate notice and an opportunity to be heard in accordance with due process of law.

In his second assignment of error, the Plaintiff asserts that the trial court erred in upholding the violations when the work being performed was ordinary maintenance and did not require a permit. He argues that he did not use any new materials; rather, he was re-securing loose or missing shingles, weatherboards, and gutters, and that there was no proof of neglect, deterioration, or hazaradous conditions on the premises.

Contrary to the Plaintiff's argument, the permit requirement does not hinge upon the use of new material. Chapter 166, Section 35 of the New Orleans Municipal Code of Ordinances requires an owner to apply for a VCC permit whenever there are any alterations to any portion of an exterior building in the Vieux Carré. Additionally, aside from ordinary maintenance and repairs, La. R.S. 25:737 generally requires an owner to apply for a certificate of appropriateness whenever an owner alters or restores exterior architectural features to structures in a historic preservation district. Thus, a permit is required when alterations or restorations to the exterior of VCC property are being made.

By the Plaintiff's own admission, various repairs to re-install loose and/or detached gutters, siding, flashing, and weatherboards were being conducted to the exterior of the building. The photographs in the record further document the condition of the property. Since the attempted repairs necessitated alterations beyond ordinary maintenance, we cannot find that the VCC was unreasonable in finding that the Plaintiff required a permit before performing the work.

Although the Plaintiff did not appear at the hearing to argue the merits of the charged violations; the record, which contains photographs of the condition of the property on March 30, 2016, and May 13, 2016, adequately supports the VCC's adjudication on the violations. Thus, we cannot find that the VCC acted in an unreasonable, arbitrary, or capricious manner.

CONCLUSION

For the foregoing reasons, we do not find any error in the trial court's judgment upholding nine of the fourteen violations. Accordingly, the trial court's judgment denying the relief requested is affirmed.

AFFIRMED

      The Plaintiff claimed a homestead exemption on the property in 2015, 2016, and 2017.

      Notably, the Plaintiff did not challenge the portion of the trial court judgment pertaining to the payment of the City's deferred filing costs.

      Initially, the Plaintiff filed an application for supervisory writs. This Court granted the application for the sole purpose of remanding to the trial court to consider the notice of intent as a motion for appeal. On remand, the Plaintiff filed a motion for a devolutive appeal.

      When reviewing an administrative decision, the district court functions as an appellate court. Since no deference is owed by the appellate court to the district court's fact findings or legal conclusions, the appellate court need only review the findings and decision of the administrative agency. Sylvester v. City of New Orleans Through Code Enf't & Hearings Bureau , 17-0283, p. 4, 228 So.3d 285, 287 (La. App. 4 Cir. 10/11/17), reh'g denied , (10/20/2017).

      The jurisprudence cited by the Plaintiff in support of this argument is inapposite, as those cases involved tax sales of property, which reasonably require actual notice whenever practicable.

      New Orleans Municipal Code of Ordinances 166-35 states:
      Before the commencement of any work in the erection of any new building or in the alteration or addition to, or painting or repainting or demolishing of any existing building, where any portion of the exterior of the building is in the Vieux Carré section, application by the owner for a permit therefor shall be made to the Vieux Carré Commission, accompanied by the full plans and specifications thereof so far as they relate to the proposed appearance, color, texture of materials and architectural design of the exterior, including the front, sides, rear and roof of such building, alteration or addition or of any out building, party wall, courtyard, fence or other dependency thereof.

      La. R.S. 25:737 states, in pertinent part:
      A. No private building, structure, or edifice, including fences, boundary walls, signs, light fixtures, steps and paving or other appurtenant fixtures shall be erected, altered, restored, moved or demolished within an historic preservation district until after an application for a certificate of appropriateness as to exterior architectural features has been submitted to and approved by an historic preservation district commission, except as otherwise provided by the governing body in the ordinance establishing such commission or as provided by rules, regulations, policies, procedures and standards adopted by said commission. Similarly, if earthworks of historical or archaeological importance exists in the historic district there shall be no excavating or moving of earth, rock or subsoil without a certificate of appropriateness. For the purposes of this Chapter "exterior architectural features" shall include but need not be limited to the color, architectural style, general design and general arrangement of the exterior of a structure, including the kind and texture of the building material, the type and style of all roofs, windows, doors, light fixtures, signs and other appurtenant fixtures. The style, scale, material, size and location of outdoor advertising signs and bill posters within an historic preservation district shall also be under the control of such commission.
      ...
      D. Nothing in this Chapter shall be construed to prevent ordinary maintenance or repairs which do not involve a change of design, material, or of the outward appearance, thereof; nor to prevent the construction, reconstruction, alteration or demolition of any such feature which is required by the public safety because of an unsafe or dangerous condition. The requirements of this Chapter shall not apply to work which has begun or for which a permit has been issued prior to the establishment of the historic preservation district.

      Plaintiff retained the services of a contractor to secure the siding.


text:
    James ENGLAND v. Alina Julia ENGLAND
    James England v. Alina Julia England
    NO. 2017-CA-0493 NO. 2017-CA-0498
    Court of Appeal of Louisiana, Fourth Circuit.
    MARCH 2, 2018
    Marc D. Winsberg, Jonathan D. Gamble, Robin P. Arnold, WINSBERG & ARNOLD, LLC, 650 Poydras Street, Suite 2050, New Orleans, LA 70130, COUNSEL FOR PLAINTIFF/APPELLEE
    Richard Ducote, 318 East Boston Street, 2nd Floor, Covington, LA 70433, Phillip A. Wittmann, Carmelite M. Bertaut, STONE PIGMAN WALTHER WITTMANN L.L.C., 909 Poydras Street, Suite 3150, New Orleans, LA 70112-4042, COUNSEL FOR DEFENDANT/APPELLANT
    (Court composed of Judge Roland L. Belsome, Judge Joy Cossich Lobrano, Judge Marion F. Edwards, Pro Tempore)
    Judge Marion F. Edwards, Pro Tempore In this child custody case, the appellant, Alina England, seeks reversal of the district court's March 30, 2017 judgment awarding the appellee, James England, sole custody of the couple's two young daughters, suspending Ms. England's visitation for ninety days, and ordering her to seek mental health counseling from a specific therapist. For the reasons that follow, we reverse and amend the judgment in part, and as amended, affirm the judgment.
    There is a history of contentious litigation between these parties, including filings in this Court. Consequently, we will limit our discussion of the facts and procedural history to what is relevant to the issues raised by this appeal.
    Mr. and Ms. England were married in 2006 and divorced in 2015. They have two minor children, S.E. and C.E. After the divorce, several petitions for protection from abuse were filed by Ms. England seeking protection from Mr. England. The first petition for protection from abuse was dismissed with prejudice after the parties agreed to a consent judgment, and the second and third petitions for protection from abuse were dismissed with prejudice by the district court after a trial. Thereafter, the district court sanctioned Ms. England, and awarded Mr. England attorney fees and costs attributable to the frivolous filing of Ms. England's second and third petitions for protection from abuse, finding that she failed to present any competent evidence to support her allegations of abuse and did not conduct a reasonable or diligent inquiry into the truthfulness of the allegations prior to filing the petitions. Throughout this litigation, Mr. England has denied abusing the children, and maintained that Ms. England has falsely accused him and has coached the children to do the same.
    On March 17-18, 2016, the district court heard a motion Ms. England filed to determine history of family violence and conducted a custody hearing. After the custody hearing, the district court awarded Mr. and Ms. England joint custody and named Mr. England as the domiciliary parent in a judgment signed on March 31, 2016. The March 31, 2016 judgment ordered both parents not to "say or do anything in the presence or hearing of the child that would in any way diminish the child's love or affection for the other parent...."
    Almost a year later, on March 13, 2017, Ms. England filed a fourth petition for protection from abuse. This petition for protection alleged that on March 5, 2017, Mr. England shoved C.E. into her bed and kicked her legs for requesting food, and that S.E. had witnessed the event. Ms. England's petition further alleged that on January 22, 2017, Mr. England pulled S.E.'s hair, kicked her, and called her an idiot; and that on February 4, 2017, Mr. England kicked S.E. in the legs. As a result, the district court issued an ex parte order of protection awarding Ms. England temporary sole custody of the children and prohibiting Mr. England from having any contact with them. The district court set Ms. England's fourth petition for protection from abuse for a hearing on March 23, 2017 and appointed an attorney for the children.
    The next day, on March 14, 2017, Mr. England filed a petition for emergency temporary custody and rule to show cause pursuant to La. C.C.P. art. 3945. That petition requested that Ms. England be limited to supervised visitation due to her harmful and alienating false abuse allegations. As it had issued an order granting Ms. England temporary custody of the children the day before, the district court declined to issue Mr. England an ex parte order of temporary custody under La. C.C.P. art. 3945. The district court set Mr. England's rule to show cause for March 23, 2017, the same day as the hearing on Ms. England's fourth petition for protection from abuse.
    On March 22, 2017, counsel for the children, LaKeisha Jefferson, filed a motion requesting that the district court conduct an in camera interview of the children pursuant to Watermeir v. Watermier , in light of their strong preferences about visitation and the alleged physical abuse. The district court set the motion for in camera interview for March 23, 2017. During a pretrial conference, counsel for Ms. England argued that the district court should hear testimony from the children. Because Mr. England's counsel did not object to the in camera interview, the district court agreed to interview the children.
    Mr. England's counsel then informed the district court of the existence of a video, which purportedly proved that the allegations asserted in Ms. England's fourth petition for protection from abuse were false. The video, taken on March 3, 2017, shows S.E. using headphones with her iPad on her bed, and C.E. jumping on Mr. England's back, falling off, and hitting her shin on S.E.'s bedframe. The video shows that, seconds later, Mr. England brought C.E. some ice, and his mother brought her a fold-up scooter. C.E. left the room using the scooter as a crutch.
    The district court and all counsel reviewed the video prior to the start of the in camera interviews. However, the district court did not inform the children of the existence of the video prior to interviewing them.
    C.E. was interviewed first. She testified that her father shoved her leg into her sister's bed. She further testified that the "abuse" continued in the living room, where her father kicked her shins three or four times while S.E. sat next to her on the couch, and that both girls asked him to "stop." When asked if she had ever jumped on her father's back, she said that she had not. She was specifically asked if she had ever jumped on her father's back and hit her leg on her sister's bed. She denied that happened. At this point, the district court showed C.E. the recording. After she saw it, C.E. acknowledged that she hit her leg on the bed, stating "I forgot about that." However, she maintained that she remembered hurting her leg because her father shoved her into the bed.
    Next, the district court interviewed S.E, who told the court that her mother told her they were going to court because their father abuses the children, and they have to stop it. S.E. testified that her father hurts her and her sister when they ask for food. She further testified that her father shoved C.E.'s back, not her legs, causing her to hit the bed. S.E. also testified that she did not sit next to C.E. on the couch, but sat by herself at the dining room table. S.E. did not mention her father kicking C.E. as she sat on the couch, and stated that neither girl said anything to their father while he was in the living room during the alleged incident. When asked if she recalled C.E. jumping on Mr. England's back, she answered that she did not. When asked if she ever uses headphones with her iPad, S.E. stated that she only does that at her mother's house, because she does not have any headphones at her father's house. When the district court showed S.E. the video, she had an emotional breakdown and attempted to run out of the courtroom, screaming hysterically that she wanted to see her mother. At this point, the district court ended the Watermeier hearing.
    Ms. England proceeded on her fourth petition for protection from abuse. The district court heard testimony from Dr. Neha Mehta, the medical director of the Audrey Hepburn CARE Center, Officer Bionca De'Irish of the New Orleans Police Department Child Abuse Unit , Ms. England, Dr. Kristen Luscher, and Mr. England. Dr. Mehta testified that she examined C.E. on March 6, 2017. She found a "fairly large bruise" located on C.E.'s right upper shin area, and stated that the bruise was consistent with being kicked. However, on cross-examination, Dr. Mehta admitted that the injury was "non-specific for abuse" and that the injury, though consistent with being kicked, could have occurred another way. Dr. Mehta also conceded that the injury could have happened when C.E. hit her shin on the bed rail, and that the bruise could still be present if the incident that caused it took place three days prior to her examination.
    Ms. England testified that when she picked the children up from school on March 6, 2017, she noticed a large bruise on C.E.'s leg, and took her to the emergency room at Children's Hospital. Ms. England further testified that she filed a protective order and the fourth petition for protection from abuse as a result of the injury.
    Dr. Luscher, who provides therapy to the children, testified that the children feel compelled to report mistreatment by their father, and that she believes Ms. England orchestrated certain situations in order to fabricate mistreatment by Mr. England. Dr. Luscher opined that Ms. England's "theatrics" have a detrimental effect on the children, especially in their relationships with their father, his family, and their peers. Specifically, Dr. Luscher stated that the children told her that their mother spoke to them about things that were "too adult," including telling them negative things about their father. Following the testimony, the district court, noting that the inconsistent allegations made by the children did not support the allegations made by Ms. England, denied the fourth petition for protection from abuse.
    After the fourth petition for protection from abuse was denied, the district court heard Mr. England's petition. Both Mr. and Ms. England testified, and the district court took judicial notice of the other testimony given during the hearing on the fourth petition for protection from abuse. Mr. England testified that Ms. England puts immense amounts of pressure on the children, and that the joint custody arrangement was not improving the circumstances. Ms. England denied speaking to the children about things that were "too adult," despite Dr. Luscher's statements. At the conclusion of Ms. England's testimony, the parties submitted the case to the district court, which deferred its ruling.
    Later, on March 30, 2017, after noting that the joint custody arrangement was causing harm to the children, the district court rendered judgment denying Ms. England's petition for protection from abuse, awarding temporary sole custody of the minor children to Mr. England, suspending Ms. England's visitation for ninety days, and ordering that following the suspension, Ms. England would be limited to eight hours of supervised visitation per week until she undergoes professional therapy with a specific therapist. Ms. England filed a timely appeal from that judgment.
    LAW AND ANALYSIS
    In brief to this Court, Ms. England has assigned four errors for our review. Initially, she argues that Mr. England did not meet his burden of proof that a material change in circumstances justified a change in custody.
    La. C.C. art. 131 provides that; "(i)n a proceeding for divorce or thereafter, the court shall award custody of a child in accordance with the best interest of the child." This article applies in actions to change custody as well as those that initially set it. However, in actions to change a custody decision rendered in a prior considered decree, the proponent of change must show that a change of circumstances has occurred such that "the continuation of the present custody is so deleterious to the child as to justify a modification of the custody decree, or ... that the harm likely to be caused by a change of environment is substantially outweighed by its advantages to the child." This burden of proof is imposed by the jurisprudence as a means of implementing the best interest standard in light of the special considerations present in change of custody cases. The determination of the trial court in child custody matters is entitled to great weight, and its discretion will not be disturbed on review in the absence of a clear showing of abuse.
    Among the factors the trial court must consider in determining the child's best interest is the willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party. There is ample evidence to support the trial court's finding that Ms. England is unwilling or unable to encourage a close and continuing relationship between the children and
    Mr. England. Dr. Luscher testified that the children feel compelled to report mistreatment by their father. Dr. Luscher opined that Ms. England orchestrated certain situations in order to fabricate mistreatment by Mr. England. Additionally, the conflict between the video and the children's statements, and S.E.'s reaction to the video, support Mr. England's assertion that the children's mother is fabricating abuse allegations and encouraging the children to verify them.
    Ms. England has subjected her children to several investigations by the New Orleans Police Department (NOPD), including late night "welfare checks" while her children were visiting with their father. The trial court also considered Ms. England's "long history of filing unverified Petitions for Protection from Abuse," including one that resulted in sanctions against Ms. England in the amount of $95,450.19. The court further noted Ms. England's lack of veracity that has traversed all of the custody proceedings between these parties.
    The court expressed concern that, despite all the advantages enjoyed by the children, they "internalize the belief that they hate their father and verbalize that belief to appease their mother." The court further found that Ms. England "treats her children like pawns in a devious game to prove Mr. England is a child abuser." Ultimately, the trial court determined that Ms. England's actions are "detrimental and deleterious to the children's wellbeing."
    Upon review, we find no abuse of discretion in the trial court's award of temporary, sole custody to Mr. England, or in the order of supervised visitation. This assignment is without merit.
    Ms. England's second assignment of error questions the trial court's decision to suspend her visitation rights for 90 days from April 3, 2017 to July 3, 2017. Mr. England counters that this ruling is moot as the suspension is now over. We agree.
    An issue is moot when a rendered judgment or decree can serve no useful purpose and give no practical relief or effect. Appellate courts will not render advisory opinions from which no practical results can flow. Accordingly, moot questions are not considered on appeal. We find no purpose will be served in reviewing a ruling by the trial court on a suspension that has terminated and is no longer applicable. Any discussion on this issue would be pure dicta.
    In her third assignment of error, Mrs. England asserts the trial court judgment is in violation of her due process rights in that the court ordered suspension of visitation rights went beyond any demand in the pleadings. Since we have ruled that the issue of the suspension of visitation is moot in that it was terminated on July 3, 2017, we find no merit in this argument.
    In her final assignment of error, Ms. England argues that the trial court erred in ordering her to obtain mental health counseling by a therapist of the court's choosing. In the judgment, the district court ordered Ms. England to seek professional therapy from Betsey Backe, LSCW. In brief, Ms. England argues, "(t)here is no authority for a court to order that a party submit to treatment by an health care provider selected by the court-even in domestic disputes ..." (emphasis in original). Ms. England does not contest the authority of the court to order counseling; rather she points out that typically a court orders a parent to seek therapy by a therapist of her choice, and asks this Court to vacate that portion of the judgment that orders her to seek counseling with Betsy Backe.
    We find merit in this argument. While the court has the authority and discretion to order counseling in custody matters , we find no authority to support the order of a specific therapist to provide that therapy. Accordingly, we hereby vacate that portion of the trial court's judgment mandating Ms. England to seek therapy specifically from Betsey Backe, LCSW. In all other respects, we affirm the judgment.
    For the foregoing reasons, we vacate that portion of the judgment that orders Ms. England to seek treatment specifically from Betsey Backe, LCSW, and we amend the judgment on appeal to exclude the provision that orders Ms. England seek professional therapy "from Betsey Backe, LCSW ...". We affirm the judgment as amended.
    JUDGMENT VACATED IN PART AND AMENDED, AND AS AMENDED, AFFIRMED

      See England v. England, 2016-0936 (La. App. 4 Cir. 6/28/17), 223 So.3d 582.

      At the time of the hearing in question held in March of 2017, S.E. was ten years old and C.E. was nine years old. Initials are used rather than full names so as to protect the privacy of the minor children who are subject to the outcome of this proceeding. See Uniform Rules, Court of Appeal, Rule 5-1 and Rule 5-2. See also La. Ch.C. art. 337 and State in the Interest of A.S. , 2017-0028 (La. App. 4 Cir. 5/10/17), 220 So.3d 179.

      Watermeier v. Watermeier , 462 So.2d 1272, 1274 (La. 1985) (holding that a child's competency hearing or interview should be held in the judge's chambers in order to relieve a child from as much pressure as possible from the "glare of the courtroom" and the possibly intimidating presence of his mother and father).

      Officer De'Irish did not provide much testimony due to the open criminal investigation into the abuse allegations. On direct examination, Officer De'Irish only stated that she was called to Children's Hospital regarding an allegation of abuse against C.E., that she saw a bruise on C.E.'s leg, and had twice attempted, unsuccessfully, to call Mr. England. When cross-examined by Jefferson, Officer De'Irish stated that she could still see the bruise on C.E.'s leg on the day of the forensic interview.

      AEB v. JBE, 99-2668 (La. 11/30/99), 752 So.2d 756, 761.

      Bergeron v. Bergeron , 492 So.2d 1193, 1200 (La. 1986).

      See Revisions Comments-1993 (d) to La.C.C. art. 131 ; AEB v. JBE, 99-2668, 752 So.2d at 761.

      Bergeron, 492 So.2d at 1196.

      La.C.C.P. art. 134 (10).

      The decision in this award was reviewed and affirmed by this Court in England v. England, 2016-0936 (La. App. 4 Cir. 6/28/17), 223 So.3d 582, 590.

      Cat's Meow, Inc. v. City of New Orleans Through Dept. of Finance , 98-0601 (La. 10/20/98), 720 So.2d 1186, 1193.

      Enmon Enterprises, LLC v. City of New Orleans ex rel. New Orleans Aviation Bd. , 2015-0763 (La. App. 4 Cir. 5/4/16), 194 So.3d 709, 711, writ denied sub nom. Enmon Enterprises, LLC v. City of New Orleans , 2016-1046 (La. 9/16/16), 206 So.3d 884.

      See for example, La. R.S. 9:331, La. R.S. 9:361 et. seq., and La. Ch.C. art. 308.

      This amendment also includes the exclusion of Ms. Backe's contact information that follows her name.

   LOBRANO, J., CONCURS IN PART, DISSENTS IN PART, AND ASSIGNS REASONS.

LOBRANO, J., CONCURS IN PART, DISSENTS IN PART, AND ASSIGNS REASONS.

I respectfully concur in part and dissent in part from the majority opinion. I concur in the majority's affirmation of the district court's award of sole custody to Mr. England and supervised visitation to Ms. England. I write separately as to that affirmation, however, to provide reasons why the burden of proof set forth in Bergeron v. Bergeron was improperly applied to an emergency temporary allocation of custody time under La. C.C.P. art 3945.

I dissent from the majority's amendment and affirmation as amended of the portion of the district court's judgment ordering Ms. England to seek counseling from a specific therapist. I would reverse that portion of the district court's judgment because there is no authority in Louisiana law for a judge to order a litigant to seek counseling in a proceeding under La. C.C.P. art. 3945.

First, the district court's judgment in this case improperly applies the burden of proof set forth in Bergeron to Mr. England's Article 3945 petition. Although neither party expressly challenges the application of Bergeron, Rule 1-3 of the Uniform Rules of the Courts of Appeal states that the Courts of Appeal will review issues other than those specified in assignments of error when "the interest of justice" clearly requires such review. The interests of justice require that child custody matters are decided by application of the proper burden of proof. This improper application is problematic to future custody proceedings in this case and requires a clarification at this time. I therefore choose to address this error.

Bergeron requires that when a party seeks a modification of a custody arrangement established by a considered decree, the proponent of the change must prove that a change of circumstances materially affecting the welfare of the child has occurred since the prior custody order, and:

The party seeking a change bears a heavy burden of proving that the continuation of the present custody is so deleterious to the child as to justify modification of the custody decree, or of proving by clear and convincing evidence that the harm likely to be caused by a change in environment is substantially outweighed by its advantages to the child.

492 So.2d 1193, 1200 (La. 1986) ; see also Gray v. Gray , 2011-548, pp. 19-20 (La. 7/1/11), 65 So.3d 1247, 1258-59.

Louisiana Code of Civil Procedure article 3945 provides, in relevant part:

* * *
B. An ex parte order of temporary custody of a minor child shall not be granted unless:
(1) It clearly appears from specific facts shown by a verified petition or by supporting affidavit that immediate and irreparable injury will result to the child before the adverse party or his attorney can be heard in opposition.
(2) The applicant's attorney certifies to the court, in writing, either:
(a) The efforts which have been made to give the adverse party reasonable notice of the date and time such order is being presented to the court.
(b) The reasons supporting his claim that notice should not be required.
C. An ex parte order of temporary custody shall:
(1) Expire by operation of law within thirty days of signing of the order; however, the order may be extended for good cause shown at any time before its expiration for one period not exceeding fifteen days.
(2) Provide specific provisions for temporary visitation by the adverse party of not less than forty-eight hours during any fifteen-day period, unless the verified petition or supporting affidavit clearly demonstrates that immediate and irreparable injury will result to the child as a result of such visitation.
(3) Be endorsed with the date on which the ex parte order is signed and the date and hour of the rule to show cause.
D. The rule to show cause why the respondent should not be awarded the custody, joint custody, or visitation of the child shall be assigned for hearing not more than thirty days after signing of the ex parte order of temporary custody.
* * *
F. In the event an ex parte order of temporary custody is denied, the court shall specifically allocate between the parents the time which the child shall spend with each parent at the hearing on the rule to show cause set pursuant to Paragraph D of this Article, unless immediate and irreparable injury will result to the child....

Article 3945 thus provides for injunctive relief, first through an ex parte order, and then through a determination of custody at a hearing no more than thirty days after the signing or the denial of the ex parte order. At the thirty-day hearing, the district court "shall specifically allocate between the parents the time which the child shall spend with each parent unless immediate and irreparable injury will result to the child."

Article 3945 allows a district court to award sole custody at the thirty-day hearing where it finds that "immediate and irreparable injury will result...." This burden of proof, like the burdens established by other Louisiana statutes addressing emergency changes of custody, differs from the burden of proof required by Bergeron . Moreover, the record indicates that the district court intended the custody judgment it rendered to be temporary. The judgment itself states Mr. England "is awarded temporary sole custody of the minor children."

Given the temporary nature of emergencies, it is problematic to apply a burden of proof meant to prevent frequent changes in a child's living situation. In Bergeron, the Louisiana Supreme Court concedes that the Bergeron standard may "inflexibly" prevent modifications of custody, but finds that such a "heavy burden of proof in custody modification cases is justified" due to the harm caused to children when "liberal custody modification rules" are applied. 492 So.2d 1193 at 1199 (citations omitted). The Court goes on to state:

The child has at stake an interest of transcending value in a custody modification suit-his best interest and welfare-which may be irreparably damaged not only by a mistaken change in custody but also by the effects of an attempted or threatened change of custody on grounds that are less than imperative. The consequences to the mental and emotional well-being and future development of the child from an erroneous judgment, unjustified litigation, threat of litigation, or continued interparental conflict are usually more serious than similar consequences in an ordinary civil case.

Id. at 1200. The Court's language makes its intent evident-the Bergeron standard exists to prevent frequent custody changes because frequent custody changes are harmful to children.

This rationale loses its sagacity when applied to emergencies under La. C.C.P. art. 3945. The problem Bergeron seeks to prevent, frequent changes in custody, is only amplified when a litigant must prove Bergeron in an emergency situation. Because a Bergeron determination results in a new considered custody decree, such reasoning would subject a child to two custody trials for one emergency-one to obtain a necessary temporary allocation of custody time during the pendency of the emergency situation, and another to return to the prior custody arrangement after the emergency has abated. To hold that the Bergeron standard applies to emergency custody changes under La. C.C.P. art. 3945 is to undo the rationale of Bergeron itself. Consequently, the district court erred as a matter of law in applying Bergeron to the Article 3945 petition.

Despite the district court's erroneous application of Bergeron , the emergency division of custody time rendered by the district court is proper and in the best interest of the children. The record makes clear that immediate and irreparable injury would result to the children if joint custody were continued, especially considering the testimony of Dr. Luscher and the emotional trauma experienced by the children when they viewed Mr. England's video during the Watermeier hearing. Accordingly, under La. C.C.P. art. 3945, the district court did not err in temporarily allocating time equivalent to sole custody to Mr. England.

Next, the district court improperly ordered Ms. England to seek mental health treatment. The majority states that Ms. England only challenges the portion of the judgment specifying a treatment provider, and not the provision requiring her to seek treatment itself. However, Ms. England states that the order requiring her to receive mental health treatment "is an attempt to regulate the behavior of the parties," "substitutes resolution of the parents' problems for the children's best interest," and "is prohibited." Moreover, Ms. England argues that the district court's judgment violates her constitutional right of free association-an argument that would be nonsensical if, as the majority states, Ms. England only objects to being ordered to associate with this particular mental health counselor. Therefore, the issue of whether the district court had the authority to order Ms. England to receive mental health treatment is properly before this Court.

The majority broadly states that "the court has the authority and discretion to order counseling in custody matters." This assertion is inaccurate. There is statutorily created authority for a district court under specific circumstances to mandate treatment. Under La. R.S. 9:364 (C), a district court shall mandate that a parent found to have a history of perpetrating family violence must participate in a domestic abuse program in order to be allowed supervised visitation, and mandate completion of that program in order for that parent to be allowed unsupervised visitation. Under part D of the same statute, a parent found to have sexually abused their child shall be prohibited from visitation until the parent has completed a treatment program for sexual abusers. Likewise, under La. R.S. 9:331.1, a party to a custody or visitation proceeding may be required to submit to drug testing. No such statutory authority exists, however, to require mental health counseling under La. C.C.P. art. 3945.

In contrast, the statutes the majority uses as "example[s]" of the district court's "authority and discretion to order counseling in custody matters" do not actually allow a district court to order treatment. Louisiana Revised Statute 9:331 allows a district court to order an "evaluation" of a party or a child in a custody or visitation proceeding.

Louisiana Revised Statutes 9:361 et seq., (the Post-Separation Family Violence Relief Act) as explained supra in reference to La. R.S. 9:364 (C), only allow for mandated mental health treatment under specific circumstances not at issue in the case sub judice. Likewise, La. Ch.C. art. 308 only provides authority for a court to refer charges that a child's physical or mental health or welfare is in danger to the Department of Children and Family Services, not to mandate counseling.

In the absence of statutory authority to do so, I would not interpret the district court's authority so broadly. Rather, I find that the district court lacks the "authority and discretion" to order mental health counseling when rendering judgment on proceedings under La. C.C.P. art. 3945.

Accordingly, I would reverse that portion of the district court's judgment.

For these reasons, I respectfully concur in part and dissent in part from the majority opinion.

      492 So.2d 1193 (La. 1986).

      Immediate temporary change of custody statutes require different showings than the burden of proof stated in Bergeron depending upon the nature of the emergency they were created to address. See La. R.S. 46:2131 et seq. (providing for an award of temporary custody where there is an immediate danger of abuse); La. R.S. 9:364 (specifying how a district court should award custody upon a showing that a parent has a history of perpetrating family violence); La. Ch.C. art. 1570 (allowing a juvenile court to award temporary custody "to bring about a cessation of abuse of a party"). Compare La. C.C.P. art. 3945 (G) (stating, "[t]he provisions of this Article do not apply to any order of custody of a child requested in a verified petition alleging the applicability of the Domestic Abuse Assistance Act, R.S. 46:2131 et seq., Children's Code Article 1564 et seq., or the Post-Separation Family Violence Relief Act, R.S. 9:361 et seq.").

      For an alternative to this result, see infra fn. 8.

      La. R.S. 9:331 states:
      A. The court may order an evaluation of a party or the child in a custody or visitation proceeding for good cause shown. The evaluation shall be made by a mental health professional selected by the parties or by the court. The court may render judgment for costs of the evaluation, or any part thereof, against any party or parties, as it may consider equitable.
      B. The court may order a party or the child to submit to and cooperate in the evaluation, testing, or interview by the mental health professional. The mental health professional shall provide the court and the parties with a written report. The mental health professional shall serve as the witness of the court, subject to cross-examination by a party.

      The record in the case sub judice indicates that Ms. England filed a Motion to Determine History of Family Violence, which was denied. Mr. England never pursued relief under La. R.S. 9:364, and the district court did not invoke the provisions of the Post-Separation Family Violence Act sua sponte.

      La. Ch.C. art. 308 states:
      A. Whenever any court of this state in the trial of any proceeding has cause to believe that a child's physical or mental health or welfare is endangered by abuse or neglect, it may report and refer the charges to the local child protection unit of the Department of Children and Family Services in accordance with Article 610.
      B. If from its investigation the department determines that the report is validated or if it has obtained an instanter order from the juvenile court, it shall file appropriate written notice in the civil proceeding in which the complaint arose. Thereafter, the juvenile court shall have jurisdiction to resolve the case as a child in need of care proceeding pursuant to the provisions of Title VI.
      While the district court did not have the authority to mandate mental health counseling under La. C.C.P. art. 3945, the district court had the discretion to order a Mental Health evaluation pursuant to La. R.S. 9:331. The district court also had the discretion to report and refer these matters to the Department of Children and Family Services under La. Ch. C. art. 308 if the district court's decision to mandate mental health counseling for Mother and the children was due to a belief that the children's mental health was endangered by abuse or neglect. If the Department determines that the report is valid or obtains an instanter order from the juvenile court, then the juvenile court can exercise its authority to order mental health counseling for the family under proper monitoring and reporting as set forth in the Louisiana Children's Code. The parties could also agree to mental health treatment.

      In support of her claim, Ms. England relies on Griffith v. Latiolais , 2010-0754 (La. 10/19/10), 48 So.3d 1058, 1071-72, which upheld the Third Circuit's reversal of the portion of a judgment requiring that the parents continue counseling sessions with a parenting coordinator and that they follow the parenting coordinator's recommendations. Id. at 2010-0754, p. 19, 48 So.3d at 1071. The Griffith court stated when so holding that "[t]here is no provision in the law that allows the trial court to require continued counseling outside the parameters of La. R.S. 9:358.1." Id. Ms. England relies on this statement for her assertion that the district court had no authority to require that she seek individual counseling with a specific therapist. A reading of the Griffith opinion in its entirety, however, makes it apparent that the Griffith court was referencing the lack of a provision allowing a district court to require continuing counseling from a parenting coordinator outside the parameters of La. R.S. 9:358.1. The Griffith court did not opine on the district court's requirement that those parents seek individual counseling with specific therapists. However, my finding that the district court exceeded its authority to mandate treatment with a specific mental healthcare provider is consistent with Griffith's interpretation of La. R.S. 9:358.1.

      If the reasons provided by the partial concurrence and partial dissent were properly applied by the district court, "all of Ms. England's visitation sessions" would continue to be "supervised until...she is given written authority by the Court," as stated in the March 30, 2017 judgment (excluding the portions ordering that Ms. England subject herself to mental health counseling). Then, emergency temporary allocation of custody time under La. C.C.P. art 3945 would be lifted, and the original March 31, 2016 custody decree would be reinstated.