author: Judge Terri F. Love

text:
    FILMORE PARC APARTMENTS II v. FOSTER, Norman S.
    NO. 2016-CA-0568
    Court of Appeal of Louisiana, Fourth Circuit.
    FEBRUARY 15, 2017

      Robert S. Angelico, Cheryl M. Kornick, LISKOW & LEWIS, APLC, 701 Poydras Street, One Shell Square, Suite 5000, New Orleans, LA 70139-5099, COUNSEL FOR PLAINTIFF/APPELLANT, FILMORE PARC APARTMENTS II, A LOUISIANA PARTNERSHIP IN COMMEN-DAM
    John J. Weiler, Christian N. Weiler, WEILER & REES, LLC, 909 Poydras Street, Suite 1250, New Orleans, LA 70112, COUNSEL FOR DEFENDANT/APPELLEE, ERROLL G. WILLIAMS
    (Court composed of Judge Terri F. Love, Judge Sandra Cabrina Jenkins, Judge Marion F. Edwards, Pro Tempore)
   Judge Terri F. Love

11 This appeal arises from a petition to recover, ad valorem taxes paid under protest. Defendants filed a motion for summary judgment contending that plaintiff was not entitled to a refund of taxes paid under protest because plaintiffs property was not exempt from ad valorem taxation. Plaintiff then filed a cross-motion for summary judgment alleging that it provides public housing and is therefore exempt from ad valorem taxation. The trial court found that plaintiff was not entitled to the return of taxes paid under protest because plaintiffs housing was not considered “public housing.” As such, plaintiffs property was not exempt from ad valorem taxation.

Plaintiff appeals contending that the trial court misinterpreted this Court’s jurisprudence on the matter. We find that the trial court legally erred by ending the analysis after first finding that plaintiffs property was privately owned. The trial court did not consider the second prong of the test required when determining whether property is exempt from ad valorem taxation. Accordingly, the judgment of the trial court is reversed, and the matter is remanded for further proceedings consistent with this opinion.

19FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Michael Vales formed Mirabeau Family Learning Center, Inc. (“MFLC”), a Louisiana non-profit corporation, as a vehicle to counteracting poverty. MFLC acquired the property (“Property”) in question in 1995, “for the specific purpose of constructing housing units to provide affordable housing to low and very low income families.” MFLC entered into a Land Use Restriction Agreement (“LURA”) with the requirement that the Property be used “solely to provide housing to low- and very low-income families.” Filmore Parc Apartments II (“Filmore”), a partnership in commendam, was formed by Mr. Vales with MFLC as the general partner. The Housing Outreach Fund VII Limited Partnership, a Fannie Mae entity, is the limited partner. MFLC’s interest in the Property was then transferred to Filmore.

Filmore operated the Property as “affordable housing for low- and very low-income families.” The Property operates 32 units as Section 8 Project Based Voucher units. The remaining units meet the requirements of § 42 of the Internal Revenue Code. Filmore contends that the Property is operated pursuant to the federal Hope VI program and La. R.S. § 40:600.1-600.24. However, Filmore Parc was assessed ad valorem taxes for the Property for the 2014 tax year. Filmore paid $61,755.92 on January 24, 2014, and contended that it was exempt pursuant to Louisiana Const. Art. VII, § 21(A).

Filmore then filed a Petition to Recover Taxes Paid Under Protest against IsNorman Foster, Chief Financial Officer and Director of Finance for the City of New Orleans; Erroll Williams, as the Assessor of Orleans Parish; and the Louisiana Tax Commission. Mr. Williams filed an Exception of Lack of Subject Matter Jurisdiction included with his Answer because Filmore failed to appeal the tax assessment. Mr. Williams also filed a Motion for Summary Judgment contending that the housing units in the Property were not exempt from ad valorem taxation. Filmore filed a Cross-Motion for Summary Judgment alleging exemption. Following a hearing, the trial court found that the Property was not exempt from ad valorem taxation for 2014. Accordingly, the trial court granted Mr. Williams’ Motion for Summary Judgment and denied Filmore’s Cross-Motion for Summary Judgment. Filmore’s Petition for Suspensive Appeal followed.

Filmore asserts that the trial court legally erred by applying the incorrect legal test and misinterpreting jurisprudence to conclude that the Property was not tax exempt.

STANDARD OF REVIEW

“[A] motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(A)(3). “The burden of proof rests with the mover.” La. C.C.P. art. 966(D)(1). However, “if the mover will not bear the burden of proof at trial on the issue that is before the court,” then the mover is required “to point out to the court the absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense.” La. C.C.P. art. 966(D)(1).

An appellate court reviews the granting of a motion for summary judgment |4with the de novo standard of review. Brunet v. Fullmer, 00-0644, p. 3 (La.App. 4 Cir. 1/10/01), 777 So.2d 1240, 1241. “Appellate courts use the ‘same criteria that govern the trial court’s consideration of whether summary judgment is appropriate, i.e., whether there is a genuine issue of material fact and whether the mover is entitled to judgment as a matter of law.’ ” Weintraub v. State Farm Fire & Cas. Co., 08-0351, p. 2 (La.App. 4 Cir. 10/29/08), 996 So.2d 1195, 1196-97, quoting Supreme Servs. and Specialty Co., Inc. v. Sonny Greer, Inc., 06-1827, p. 4 (La. 5/22/07), 958 So.2d 634, 638.

PUBLIC HOUSING

Filmore avers that the trial court misinterpreted this Court’s jurisprudence and limited the applicability of the test for exemption from ad valorem taxation. Fil-more contends that as long as property “and its revenues are dedicated to the public purpose” and the property is being used for that purpose, the property should be exempt. Filmore asserts that if the trial court applied this correct legal test, then the Property would have been deemed exempt.

“‘Exemptions from taxation are strictly construed, an exemption being an exceptional privilege which must be clearly and unequivocably and affirmatively established.’” Abundance Square Associates, L.P. v. Williams, 10-0324, p. 5 (La.App. 4 Cir. 3/23/11), 62 So.3d 261, 263-464, quoting Holley v. Plum Creek Timber Co., Inc., 38,716, p. 7 (La. App. 2 Cir. 6/23/2004), 877 So.2d 284, 290. “La. Const, art. VII, § 21(A) exempts ‘public property used for public purposes’ from ad valorem taxation.” Slay v. Louisiana Energy & Power Auth., 473 So.2d 51, 53 (La. 1985). “This general exemption includes all property owned by the state and the various political subdivisions of the State.” Id. However, “[t]he Louisiana Supreme Court acknowledged that property can ‘vest’ in the public even | ^though the ‘title be not in the public.’ ” Abundance Square, 10-0324, p. 5, 62 So.3d at 264, quoting Adm’rs of Tulane Educ. Fund v. Board of Assessors, 38 La.Ann. 292 (1886), 1886 WL 4310, *4. After examining the first requirement for tax exemption, there is no question that Filmore’s Property is privately owned.

“The second requirement for ad valorem tax exemption is that the public property be used for a public purpose.” Slay, 478 So.2d at 54. “Louisiana jurisprudence holds that ownership alone is not the determining factor and that privately owned property may be dedicated to public use to attain tax exempt status.” Abundance Square, 10-0324, p. 10, 62 So.3d at 266. “[H]ow the revenue derived from private property is used may be considered in determining whether the property is dedicated to public use.” Id. Therefore, the Property could be exempt from taxation if it is used for a public purpose. See Abundance Square, 10-0324, p. 5, 62 So.3d at 264.

The Louisiana Supreme Court examined whether privately owned property could be vested in the public in such a way that the property would be exempt from taxation. Tulane, 38 La.Ann. at 295. All of the revenue collected from the private property was dedicated to maintaining the property, which was utilized as part of a university. Id., 38 La.Ann. at 296. The Court found that the “property, dedicated to a public use, the revenues of which serve a public purpose” was “public property although the title be not in the public.” Id., 38 La.Ann. at 297.

The Louisiana Supreme Court then examined whether a toll bridge, a quarter of which was in Mississippi, was exempt from taxation. Warren Cty., Miss. v. Hester, 219 La. 763, 54 So.2d 12, 14 (1951). The bridge was privately owned, so the Court next turned to whether the bridge was dedicated to public use. Id., 54 So.2d at 15. A large portion of the revenue derived from the use of the toll bridge was used to |fipay off the obligations incurred to buy the bridge. Id., 54 So.2d at 16. Because the revenue was used to pay off the bridge and not solely devoted to the “maintenance and economic operation” of the bridge, the Court held that the bridge was not dedicated to a public use. Id. The Court also noted that the owner’s intention of making the bridge toll free “at some future date” was an unrealistic basis for finding a public use. Id.

Similarly, the Second Circuit Court of Appeals examined Tulane and Warren to determine whether privately owned land leased to the Louisiana Department of Wildlife and Fisheries for use as a Wildlife Management Area was exempt from taxation. Holley, 38,716, p. 1, 877 So.2d at 287. The court found “that the lease of private property to the DWF for the public purpose of establishing a WMA falls within the exemption from taxation contained in La. Const, art. 7, § 21.” Id., 38,716,p. 10, 877 So.2d at 291.

In Abundance Square with a fact pattern similar to the present matter, this Court reviewed whether some housing units of a housing development were exempt from ad valorem taxation. 10-0324,p. 1, 62 So.3d at 262. The Abundance Square housing developments were constructed on land owned by HANO, but leased to private entities. 10-0324,p. 2, 62 So.3d at 262. Once the lease expired, the ownership of the housing automatically reverted back to HANO. Id., 10-0324,p. 3, 62 So.3d at 262. All of the housing units were required to be operated as “ ‘qualified low-income units’ under Section 42 of the U.S. Internal Revenue Code.” Id., 10-0324,p. 3, 62 So.3d at 263. Some units “had to be ^operated as ‘public housing’ under Section 3(b) of the U.S. Housing Act and others as Section Eight—‘project based vouchers.’ ” Id. Revenue from the PHA units was used solely for “the operation and maintenance costs of those units.” Id., 10-0324,p. 11, 62 So.3d at 267. This Court found that the PHA Units were “dedicated to public use, clearly serve a public purpose and, thus,” were “exempt from ad valorem taxes under Louisiana Const. Art. VII, § 21(A).” Id., 10-0324,p. 12, 62 So.3d at 267. The Section 8 units were not exempt. Id.

After Abundance Square, this Court examined “whether warehouses and office buildings owned by the Port of New Orleans when leased to third party private, for-profit, commercial tenants are exempt under La. Const, art. VII, § 21(A),” Bd. of Com’r of Port of New Orleans v. City of New Orleans, 13-0881, p. 6 (La.App. 4 Cir. 2/26/14), 135 So.3d 821, 825. This Court distinguished Abundance Square by stating “we do not find this case to be controlling as each case must be examined on an individual basis and because Abundance dealt with property owned by a for-profit entity rather than a political subdivision of the State of Louisiana.” Port of New Orleans, 13-0881, p. 9, 135 So.3d at 827. This Court found that “genuine issues of material fact concerning whether the specific activities being conducted by The Kearney Companies and Southern Intermodal Xpress serve any governmental function or public use” existed and remanded the matter. Port of New Orleans, 13-0881, pp. 9-10, 135 So.3d at 827.

In the present matter, the trial court did not discern beyond the first prong of the test for finding tax exemption. The trial court stated: “How can private property acquired through private funds, even if it’s held out for the public at some | slater time could ever be vested in or owned by the public. I think it falls on that alone. I don’t even get to the second part because I can’t even get over the first part.” The trial court also referenced Tulane for the differentiation that while private property used for a university can be dedicated to a public use, private property utilized -for housing was not exempt. The trial court stated that: “I think Tulane, any time you get to a university, that’s going to be a very different discussion than housing and housing post-Katrina.” The trial court also expressed concern about a flood of new litigation seeking tax exempt status. Further, the trial court interpreted Port of New Orleans, for the requirement that tax exempt “public housing,” used as a term of art, be strictly limited in potential applicability to only HANO defined public housing on public lands.

The trial court did not examine the second prong of the test regarding whether the Property was dedicated to a public use after finding that the Property was privately owned. As such, the trial court committed a legal error and did not consider the restrictions Filmore placed upon the Property in furtherance of the mission of providing affordable housing for “low- and very low-income residents in New Orleans.”

Accordingly, we find that the trial court committed legal error by failing to apply the proper test to determine whether Fil-more dedicated the Property to a public use. We reverse the trial court’s judgment granting Mr. Williams’ Motion for Summary Judgment, and remand the matter to the trial court for consideration of the public use factor in determining whether the Property is exempt from ad valorem taxation.

J¿DECREE

For the above-mentioned reasons, we find that the trial court committed a legal error when it failed to apply the proper test for determining whether the Property is public. Therefore, we reverse the trial court’s grant of Mr. Williams’ Motion for Summary Judgment and remand for further proceedings consistent with this opinion.

REVERSED AND REMANDED

      . "In 1992, the federal government launched Hope VI, a program aimed at replacing dilapidated, obsolete public housing projects with new, redesigned mixed income housing units. Pursuant to Hope VI, HUD issued grants to cities and local public housing authorities for physical revitalization and management improvements. HUD also encouraged the housing authorities to develop public/private partnerships with private sector developers and management firms to build, own and operate the new units." Abundance Square Associates, L.P. v. Williams, 10-0324, p. 2 (La.App. 4 Cir. 3/23/11), 62 So.3d 261, 262.

      . Formerly the Louisiana Housing Finance Act ("LHFA”).

      . Housing Authority of New Orleans.

      . For the purposes of this opinion, Filmore’s public housing units operated pursuant to the more stringent set of requirements are referred to as “PHA Units,” as opposed to the Section 3(b) of the U.S. Housing Act designation of the cited case.


source: Caselaw Access Project

author: Judge Roland L. Belsome

license: Public Domain

text:
    August MICHEL v. DEPARTMENT OF POLICE
    NO. 2016-CA-0623
    Court of Appeal of Louisiana, Fourth Circuit.
    FEBRUARY 15, 2017

      Donovan A. Livaccari, LIVACCARI VILLARRUBIA LEMMON, LLC, 101 West Robert E. Lee Boulevard, Suite 402, New Orleans, LA 70124, COUNSEL FOR PLAINTIFF/APPELLANT
    Rebecca H. Dietz, CITY ATTORNEY PARISH OF ORLEANS, Cherrell S. Tap-lin, SENIOR CHIEF DEPUTY CITY ATTORNEY, Elizabeth Robins, DEPUTY CITY ATTORNEY, Isaka R. Williams, ASSISTANT CITY ATTORNEY, 1300 Perdido Street, Suite 5E03, New Orleans, LA 70112, COUNSEL FOR DEFENDANT/APPELLEE
    (Court composed of Judge Edwin A. Lombard, Judge Roland L. Belsome, Judge Joy Cossich Lobrano)
   Judge Roland L. Belsome

110fficer August Michel appeals the Civil Service Commission’s (Commission) affirmation of his termination by the New Orleans Police Department’s appointing authority. The appointing authority found that Officer Michel violated internal regulations of Moral Conduct, Adherence to Law and Professional Conduct, Use of Alcohol Off Duty. For the reasons that follow we affirm.

In the early morning hours of February 22, 2012, August Michel, an off duty New Orleans police officer, was involved in an altercation at an alcoholic beverage establishment on Bourbon Street in the French Quarter. As a result of that altercation, bar personnel became aware that Officer Michel was carrying a firearm and informed the New Orleans Police Department (NOPD). Subsequently, Officer Michel was charged with a violation of La. R.S. 14:95.5, possession of a firearm on premises of alcoholic beverage outlet. The NOPD immediately suspended Officer Michel without pay for four days.

|;>On January 17, 2013, Officer Michel entered a plea of nolo contendere to the charge of possession of a firearm on premises of alcoholic beverage outlet. He was fined $200 and sentenced to forty-five days in Orleans Parish Prison, all of which was suspended. In response, the NOPD placed Officer Michel on suspension without pay for thirty-nine days.

Following a disciplinary investigation, the recommendation given by Deputy Superintendent Kirk Bouyelas was for a ten-day suspension for the off duty use of alcohol and termination for carrying his service weapon into an alcohol beverage outlet. The Superintendent of Police agreed with the recommendation and Officer Michel was terminated on May 29, 2013.

The Civil Service Commission affirmed the appointing authority’s termination of Officer Michel. This appeal followed.

On appeal, Officer Michel contends that the Commission erred in affirming the disciplinary action taken against him because the NOPD failed to comply with the standards set forth in La. R.S. 40:2531(B)(7). Additionally, Officer Michel argues that the Commission erred in its finding that the alleged infraction interfered with the efficient operation of the public service and that the penalty was commensurate with the offense.

First, Officer Michel maintains that the NOPD did not follow the minimum standards set forth in La. R.S. 40:25S1(B)(7), which provides that an investigation of a law enforcement officer shall be completed within sixty days. He argues that the investigation began when the NOPD suspended him without pay on February | ^22, 2012 and was not concluded until March 4, 2013. Thus, his disciplinary action should be considered a nullity due the investigation exceeding the sixty days set forth in the statute. The statute however, also provides that “[n]othing in this Paragraph shall limit any investigation of alleged criminal activity.” The Commission found that the sixty-day administrative investigatory period was complied with, but after the criminal investigation was completed.

The Louisiana Supreme Court addressed this issue in O’Hern v. Dep’t of Police. On December 12, 2009, Officer O’Hern, while on duty, drove his personal vehicle to the top floor of a parking garage where he consumed a considerable amount of alcohol and anti-anxiety medication. He then proceeded to taser himself and discharged his firearm more than twenty times within the vehicle. Officer O’Hern was found incapacitated and was taken for medical treatment. On that date, the NOPD Public Integrity Bureau began an investigation regarding violations of professional conduct, performance of duties, and criminal activity. Subsequent to arrest, Officer O’Hern pleaded nolo contendere to a violation La. R.S. 14:94, illegal use of weapons or dangerous instrumentalities. On March 5, 2010, the NOPD sought an administrative statement ' from Officer O’Hern. He received notice that the investigation was completed on April 27, 2010 and his employment was terminated.

On appeal he maintained that the NOPD violated the sixty-day standard set forth in La. R.S. 40:2531(B)(7) and therefore the disciplinary action was an |4absolute nullity. The Commission affirmed the disciplinary action. This Court initially affirmed that decision, but later, on rehearing, reversed the disciplinary action based on the administrative investigation exceeding the sixty day limit. The Supreme Court granted writs, reversed this Court and reinstated the decision of the Commission.

In O’Hern, the court found that the initial investigation was criminal in nature and specifically stated that “jurisprudence establishes that a criminal investigation tolls the time limit for the administrative investigation.” Accordingly, it was not until the NOPD’s March 5, 2010 request for Officer O’Hern’s investigatory statement that the criminal investigation switched to an investigatory investigation. Thus, under those circumstances, the investigation was completed on April 27, 2010, within the requisite sixty-day period. Shortly after O’Hem, the Louisiana Supreme Court’s per curiam, in McMasters v. Dep’t of Police, reiterated that the “sixty-day time limitation within which to complete an investigation does not apply to investigations involving criminal activity.”

The activities of February 22, 2012, are largely undisputed. At his hearing, Officer Michel stated that he had been drinking for several hours at two different alcohol establishments while knowingly carrying his service weapon. It was later determined that he had a blood alcohol level of .208, substantially higher than the legal limit of .08. Officer Michel’s activities that evening, including some level of participation in an altercation, lead to him being charged with a criminal I (¡misdemeanor violation of La. R.S. 14:95.5, possession of a firearm on the premises of an alcoholic beverage outlet. His nolo contendere plea on that charge was entered on January 17, 2013. After his plea, the criminal investigation changed to an administrative investigation which was concluded on March 4, 2013 which is within sixty days/

The Commission’s interpretation of the sixty-day rule presénte a question of law and is thus subject to a de novo standard of review. In light of the Louisiana Supreme Court’s interpretation of the provisions of La. R.S. 40:2531(B)(7) in O’Hern and McMasters, this Court must affirm the Commission’s determination that the investigation was completed in a timely manner considering the criminal nature of the initial investigation.

Next, Officer Michel argues that the Appointing Authority failed to prove cause to take disciplinary action and in the alternative the disciplinary action taken against him was not commensurate with the violations. We disagree.

It is well settled that appellate courts review the Commission’s findings of fact under a clearly wrong/manifestly erroneous standard; reasonable findings will not be disturbed. It is the Commission’s duty to determine, based on the facts presented, if “the appointing authority had good or lawful cause for taking disciplinary action and, if so, whether the punishment imposed was commensurate | fiwith the dereliction.” When the appointing authority demonstrates that the officer’s conduct adversely impacts the efficiency of the department, legal cause for disciplinary action exists. In establishing legal cause for discipline, the appointing authority has the burden of proving, by a preponderance of the evidence, that 1) a violation occurred and 2) the violation impaired the efficient operation of the public service. On appellate review, the Commission’s order of disciplinary action and the punishment for the infraction will not modified unless it is arbitrary, capricious, or an abuse of discretion. In order to find the Commission’s order arbitrary, capricious, an abuse of discretion, there must be no rational basis for the finding.

In this case, the record is clear that the two violations, carrying a weapon at an alcohol beverage outlet and off duty drinking, occurred. Furthermore, this Court cannot find that the Commission was irrational in finding that Officer Michel’s actions impaired the efficiency of the department. Police officers are charged with enforcing the law. When an officer violates the law it casts doubt on the integrity of the department. In addition, the Commission’s punishment for the infractions cannot be considered arbitrary, capricious, or an abuse of discretion given Officer Michel’s blood alcohol level of .208 and his testimony that |7he knowingly carried his weapon into the alcohol establishments. For these reasons the Commission’s findings are affirmed.

AFFIRMED

      . Even though Officer Michel was issued a summons for assault, he denies that he was an active participant in the altercation. The battery charge was eventually dismissed.

      . 13-1416 (La. 11/08/13), 131 So.3d 29.

      . 13-2634, p. 2 (La. 2/28/14), 134 So.2d 1163, 1163-64,

      . See O’Hern, supra.

      . Kendrick v. Dep’t of Police, 2016-0037 (La. App. 4 Cir. 6/1/16), 193 So.3d 1277, 1284, writ denied, 2016-1435 (La. 11/15/16) (citing Liang v. Dep’t of Police, 13-1364, pp. 8-9 (La.App. 4 Cir. 8/20/14), 147 So.3d 1221,-1225).

      . Tregre v. Dep’t of Police, 13-1365, p. 4 (La. App. 4 Cir. 4/30/14), 139 So.3d 1034, 1037 (citing Allen v. Dep’t of Police, 09-0589, p. 2 (La.App. 4 Cir. 11/12/09), 25 So.3d 966).

      . Mitchell v. Dep’t of Police, 09-0724, p. 3 (La.App. 4 Cir. 3/17/10), 34 So.3d 952, 953 (citing Walters v. Dep’t of Police, 454 So.2d 106, 113 (La. 1984)).

      . Id., 09-0724 at p.3, 34 So.3d at 953-54 (citing Cittadino v. Dep’t of Police, 558 So.2d 1311, 1315 (La.App. 4th Cir. 1990)).

      . Id., 09-0724 at p.3, 34 So.3d at 954

      . See Tregre, supra.

      . Id.

      . See Regis v. Dep’t of Police, 13-1124, p.2 (La. 6/28/13), 121 So.3d 665, 666.

      . Officer Michel received a ten-day suspension for off duty drinking and termination for the violation of La. R.S. 14:95.5.


author: Judge Daniel L. Dysart LANDRIEU, J.,

text:
    Dianne Denison ATKINSON v. James Dudley ATKINSON, IV
    NO. 2016-CA-0759
    Court of Appeal of Louisiana, Fourth Circuit.
    FEBRUARY 15, 2017

      Joaquin Shepherd, SHEPHERD LAW FIRM, 1795 W. Causeway Approach, Suite 203, Mandeville, LA 70471, FOR PLAINTIFF/APPELLANT
    Mark J. Mansfield, Amy C. Cowley, TRANCHINA & MANSFIELD, LLC, 321 E. Kirkland Street, Covington, LA 70433, FOR DEFENDANT/APPELLEE
    (Court composed of Judge Daniel L. Dysart, Judge Madeleine M. Landrieu, Judge Marion F. Edwards, Pro Tempore)
   Judge Daniel L. Dysart

11 Dianne Dennison Atkinson (“Ms. Atkinson”) appeals the trial court’s maintaining the Peremptory Exception of No Cause of Action filed in response to her Rule for Modifications of Physical Custody Schedule. She also appeals the trial court’s ruling in a consolidated Motion for Suspension of Child Support filed by James Dudley Atkinson, IV (“Dr. Atkinson”), relieving him of his obligation to pay child support during the months of June and July.

After review, we affirm the trial court’s ruling maintaining the Peremptory Exception of No Cause of Action. Further, we vacate that portion of the judgment relieving Dr. Atkinson of his child support obligation during the months of June and July, and remand that matter to the trial court for further proceedings.

BACKGROUND:

The parties were divorced in 2010. They have one child, Camille, who was eleven at the time the trial court heard this matter on April 6, 2016. Based on several consent judgments and a considered decree, the issues of custody, visitation, and holiday and summer schedules were established. The consent | ¿judgments establish that the parties are the joint custodians of Camille, with Ms. Atkinson being the primary domiciliary parent. By virtue of a December 15, 2014 considered decree, Ms. Atkinson is designated as the primary custodial parent during the school year, with Dr. Atkinson having physical custody from two days after the end of the school year until five days before the beginning of the next school year. The non-custodial parent has visitation every other weekend and on Wednesday evenings of every week. The judgment provides for vacation time with the child for each parent during the summer months. Further, the judgment allows for the modification of visitation, but only with the written consent of the parties.

Ms. Atkinson raised several issues in her first appeal, including custody, but voluntarily dismissed all issues except one pertaining to transportation of the child for visitation.

In November 2015, two months after this Court rendered its opinion in the previous appeal, Ms. Atkinson filed a Rule for Contempt against Dr. Atkinson for not paying child support during the two summer months Camille had spent with him. In response, Dr. Atkinson filed a motion to suspend child support during those summer months. Ms. Atkinson responded with a Rule for Modifications of Physical Custody Schedule. Specifically, Ms. Atkinson requested that the summer schedule be modified to provide for Camille to spend at least half of each summer with her mother in New Orleans. She also sought to hold Dr. Atkinson in contempt for not paying his share of educational and medical expenses for Camille. Dr. Atkinson objected to the request for change of the summer custody schedule by |sfiling a Peremptory Exception of No Cause of Action, arguing that Ms. Atkinson’s premise for the change of custody did not meet the Bergeron standard required for a change of custody after a considered decree has been rendered. As such, he argued that Ms. Atkinson did not state a valid cause of action. As stated above, the trial court agreed with Dr. Atkinson, maintaining his exception, thereby dismissing Ms. Atkinson’s motion to modify custody.

At the subject hearing, the parties stipulated that Dr. Atkinson would pay within five days to Ms. Atkinson the $5000 owed for child support in the summer of 2015, and that Ms. Atkinson would dismiss her rule for contempt. However, the trial court also granted Dr. Atkinson’s rule to suspend child support for June and July of each year going forward.

DISCUSSION:

On appeal, Ms. Atkinson raises two assignments of error. First, she argues that the trial court erred in maintaining Dr. Atkinson’s Peremptory Exception of No Cause of Action, as she did not request a change of custody, but rather a change to the allocation of physical custody over the summer. In her second assignment of error, she argues that the trial court erred in suspending Dr. Atkinson’s child support payments during the summer.

We find Ms. Atkinson’s argument that her request for modification was not a change of custody, but merely a change to the allocation of physical custody during the summer, is without merit. The motion she filed was entitled “Rule for Modifications of Physical Custody Schedule,” and in it she specifically requests that the previously ordered custody schedule for the summer be changed such that |4she would be awarded one-half of that period. We find such to be a request for a change of custody without the requisite material change in circumstances alleged or set forth in the motion. Accordingly, the Exception of No Cause of Action is an appropriate challenge to her motion.

The exception of no cause of action serves to test the legal sufficiency of a petition by determining whether the law affords a remedy on the facts alleged. Loan Partners, LLC v. PTC Family Investments, LLC, 14-0582, p. 3 (La.App. 4 Cir. 11/26/14), 157 So.3d 771, 773; Kirksey v. New Orleans Jazz & Heritage Found., Inc., 12-1351, p. 7 (La.App. 4 Cir. 2/27/13), 116 So.3d 664, 669. The pertinent inquiry is whether, in a light most favorable to the plaintiff and with every doubt resolved in plaintiffs behalf, the petition states any valid cause of action for relief. La. Code Civ. Proc. arts. 927, 931; City of New Orleans v. Bd. of Directors of Louisiana State Museum, 98-1170, p. 9 (La. 3/2/99), 739 So.2d 748, 755; Kirksey, 12-1351, p. 7, 116 So.3d at 669. The exception is triable on the face of the petition, with the trial court presuming that all well-pleaded facts in the petition are true. Loan Partners, 14-0582, p. 3,157 So.3d at 773.

A party seeking to modify a considered custody decree bears a heavy burden of proof to warrant a change in that custody arrangement. Hilkirk v. Johnson, 15-577, p. 28 (La.App. 4 Cir. 12/23/15), 183 So.3d 731, 747, citing Bergeron, 492 So.2d at 1196. In Bergeron, the Louisiana Supreme Court stated:

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

| ¡Bergeron, 492 So.2d at 1200.

More recently, in Mulkey v. Mulkey, 12-2709 (La. 5/7/13), 118 So.3d 357, the Louisiana Supreme Court restated the Bergeron rule:

[W]hen a party seeks to change custody rendered in a considered decree, the proponent of change must not only show that a change in circumstances materially affecting the welfare of the child has occurred since the prior order respecting custody, but he or she must also meet the burden of proof set forth in Bergeron.

Mulkey, 12-2709, p. 11, 118 So.3d at 365.

Ms. Atkinson’s Rule for Modification provides in pertinent part:

III. The summer schedule provided for in the judgment of December 15, 2014 [sic], is not in the best interests of the minor child. The minor child has expressed to Mover and her therapist that she desires to have contact with her peer group who live in the New Orleans area over the summer, and that she does not like attending camp in Baton Rouge because she has no friends there.
IV. The minor child is experiencing severe anxiety and is frequently tearful in discussing the upcoming summer. It would be in the best interest of the minor child, for the summer physical custody schedule be [sic] modified to provide that Camille spend at least half of each summer with her mother in the New Orleans area.

In his exception, Dr. Atkinson argued that as the issue of custody, both during the school year and the summer, had previously been adjudicated by the lower court, and had not been appealed by Ms. Atkinson, custody could not now be re-litigated unless Ms. Atkinson stated a material change of circumstances in her motion. The trial court, which was unquestionably familiar with the facts and history of this case, agreed that the current custody plan was the law of the case.

Although Ms. Atkinson argued that she did not seek to change the custody arrangement, but merely sought to modify the amount of time Camille spends with I f,her father in the summer months, the trial court was of the opinion that her proposed changes as stated on the face of her motion, were tantamount to a change in custody subject to the Bergeron/Mulkey rule. There are no allegations contained in Ms. Atkinson’s motion that the current summer custody schedule is deleterious to Camille or that any harm will come to her should the schedule remain. As the trial court did not find that the allegations of her motion stated a valid cause of action, it maintained Dr. Atkinson’s exception. We agree.

The cases cited by Ms. Atkinson in her brief, particularly Schmidt v. Schmidt, O8-263 (La.App. 4 Cir. 2/11/09), 6 So.3d 197, are distinguishable. In Schmidt, a father moved to modify a considered custody decree on the grounds that the current arrangement for exchanging the children was detrimental to them. Apparently, there were several altercations between the parents when exchanging the children at the mother’s house. The father’s proposed change would allow for the children to be picked up and dropped off at school on Mondays, with each parent having a full week with the children. The father also argued that his having full alternating weeks with the children would create more stability for them and allow for a more equitable sharing of time for the parents.

Here, Dr. Atkinson has slightly more than a two month period allocated to him in the summer. Ms. Atkinson desires to cut that time in half. Further, she makes no showing on the face of her pleading to indicate any material change in circumstance, or that the present custody arrangement is deleterious to Camille.

Thus, we find no error in the trial court maintaining Dr. Atkinson’s exception of no cause of action.

|7Ms. Atkinson briefly addresses that the trial court did not consider the issue of whether Dr. Atkinson was giving sufficient notice of when he would exercise weekend visitation with Camille. She complained that on some weekends he would pick Camille up on Friday, but on other weekends he would not pick her up until Saturday. A court-appointed custody facilitator had recommended that Dr. Atkinson give Ms. Atkinson a minimum two day notice- of when he would pick up Camille. Ms. Atkinson complained that this was too short of a notice for her to plan her weekend. She concedes in her brief that the trial court did not consider this issue.

In her brief, she argues that it was improper for the trial court to dismiss this issue on the basis of no cause of action, as she clearly stated one. Our review of the record and transcript indicates that Dr. Atkinson did not include this issue in his exception of no cause of action, no evidence was offered at the trial relative to this issue, and the trial court did not address the issue at trial. As no evidence was offered at trial on this issue and the trial court did not specifically rule it, we cannot properly review it on appeal.

By her second assignment of error, Ms. Atkinson argues that the trial court abused its discretion by ordering suspension of child support payments to her for the two summer months Camille lives with Dr. Atkinson.

Louisiana Revised Statute 9:315.8 provides for the calculation of child support when the parties have been awarded joint custody. La. R.S. 9:315.8 E provides in part:

(1) In cases of joint custody, the court shall consider the period of time spent by the child with the nondomiciliary party as a basis for adjustment to the amount of child support to be paid during that period of time.
U(2) If under a joint custody order, the person ordered to pay child support has physical custody of the child for more than seventy-three days, the court may order a credit to the child support obligation ....
(3) In determining the amount of credit to be given, the court shall consider the following:
(a) The amount of time the child spends with the person to whom the credit would be applied. The court shall include in such consideration the continuing expenses of the domiciliary party.
(b) The increase in financial burden placed on the person to whom the credit would be applied and the decrease in financial burden on the person receiving child support.
(c) The best interests of the child and what is equitable between the parties.

In 2001, the Louisiana legislature amended the child support statutes to add La. R.S. 9:315.8 E addressing joint custody, and La. R.S. 9:315.9 to provide for shared custody. This legislation appears to have been enacted in response to the Louisiana Supreme Court decision in Guillot v. Munn, which is relied on by both parties.

Ms. Atkinson admits in her brief that Dr. Atkinson has physical custody and weekend visitation with Camille for a total of ninety-four days per year, exclusive of holidays. Ms. Atkinson argues, however, that Dr. Atkinson does not always exercise his visitation; therefore, his actual time with Camille is less. She further argues that the amount of time Dr. Atkinson spends with Camille is not the type of “extraordinary” visitation envisioned by Guillot, but is a typical visitation schedule routinely awarded by courts.

Dr. Atkinson argues that he has “shared custody” of Camille, as set forth in La. R.S. 9:315.9, for the summer months. Thus, he is entitled to a suspension of child support for the two months he has physical custody.

[flThere is no provision in the child support statutes for an adjustment in support because the party afforded visitation does not always exercise that right. Additionally, as to Dr. Atkinson’s argument that he has “shared custody” during the summer months, there is no provision for having joint custody part of the year and shared custody part of the year. Rather, the statutes provide for one or the other, and in this case, the record is clear that the parties have joint custody of Camille. As such, the provisions of La. R.S. 9:315.8 E apply.

Pursuant to the prior child support award, Dr. Atkinson was charged with paying child support of $2500 per month, plus one hundred percent of Camille’s school tuition and all mandatory school expenses. He was further charged with paying sixty percent of all out-of-pocket medical expenses. He testified at trial that during the summer months when he has physical custody of Camille, he incurs an additional expense for summer camp. At the subject hearing, the trial court assessed Dr. Atkinson with an additional charge of paying for a school lunch program, which Ms. Atkinson testified was a mandatory expense.

The child support guidelines establish a rebuttable presumption of the amount of child support that is proper. See, La. R.S. 9:315.1 A. If the court finds that the application of the guidelines would not be in the best interest of the child or would be inequitable to the parties, it may deviate from the guidelines. La. R.S. 9:315.1 B; Strange v. Strange, 42,318, p. 6 (La.App. 2d Cir. 6/20/07), 960 So.2d 1223, 1228. Louisiana Revised Statute 9:315.8 E(1) and E(3)(a) require that the trial court consider the period of time spent with the non-domiciliary parent as a basis for adjustment of the child support obligation. Importantly, La. R.S. 9:315.8 E(3)(a) requires the court to make this consideration in light of the domiciliary | mparent’s continuing expenses and the contribution made by the non-domiciliary parent to the child’s needs. The law does not mandate an adjustment for time spent, nor does it remove from the trial court the discretion to decide whether to make an adjustment. Temple v. Temple, 94-1244, p. 2 (La.App. 3d Cir. 3/1/95), 651 So.2d 466, 468. There is no hard and fast rule to determine just how much, if any, to reduce the child support obligation based on the percentage of time the child lives with either parent. Savoie-Moore v. Moore, 98-235, p. 7 (La.App. 4 Cir. 9/16/98), 719 So.2d 551, 555; In the Matter of Burkenstock, 95-586, p. 4 (La.App. 5 Cir. 12/13/95), 666 So.2d 1168-1170.

It is clear from the record in this case that the trial court was exceedingly familiar with the facts of the case, including the prior rulings. It considered the amounts being paid by Dr. Atkinson for child support, as well as educational and medical expenses. However, La. R.S. 9:315.1 B(l) provides that:

[t]he court shall give specific oral or written reasons for the deviation [from the guidelines], including a finding as to the amount of support that would have been required under a mechanical application of the guidelines and the particular facts and circumstances that warranted a deviation from the guidelines. The reasons shall be made part of the record of the proceedings.

See, Dufresne v. Dufresne, 10-963, p. 7 (La.App. 5 Cir. 5/10/11), 65 So.3d 749, 754, State ex rel. Dept. of Social Services Office of Family Support ex rel. Young v. Jennings, 00-814, p. 3 (La.App. 4 Cir. 6/27/01), 790 So.2d 750, 752.

| nAceordingly, as the trial court did not express its reasons for suspending child support for the summer months, we must vacate that portion of the judgment, and remand for further proceedings consistent with the statutory mandate.

For the reasons set forth above, we affirm the portion of the judgment maintaining Dr. Atkinson’s Peremptory Exception of No Cause of Action, vacate the portion of the judgment suspending child support payments by Dr. Atkinson, and remand.

AFFIRMED IN PART; VACATED IN PART, AND REMANDED

LANDRIEU, J., CONCURS WITH REASONS

LANDRIEU, J.,

CONCURS WITH REASONS

hi concur in the majority’s affirmation of the granting of the exception of no cause of action. I write separately to emphasize that one of the primary reasons for the Bergeron rule is to prevent the harm done to the child by endless, recurring litigation over the same issues. See Bergeron v. Bergeron, 492 So.2d 1193, 1195 (La.1986).

In the present case, the record reflects that the gravamen of Ms. Atkinson’s appeal of the December 15, 2014 judgment was the child’s summer schedule, which is essentially the same issue she raises in her “Rule for Modifications of Physical Custody Schedule,” filed less than a year after that appeal was decided. This situation is precisely what the Bergeron rule was intended to prevent. Accordingly, I respectfully concur in the result reached by the majority.

      .The record in this matter does not contain the previous judgments establishing the visitation schedule. However, this case was appealed to this Court before (2015-CA-0341), and we have obtained facts concerning prior rulings from that opinion, which was based on a December 15, 2014 judgment. Additionally, the transcript of the subject hearing contains a narrative of the history of the case.

      . Dr. Atkinson now resides in Baton Rouge, LA.

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

      . She argues that the time Dr. Atkinson would lose in the summer could be made up during the school year on extra weekends or holidays.

      . 99-2132 (La. 3/24/00), 756 So.2d 290.

      . The prior judgments and the worksheets used to determine child support are not contained in this record. Therefore, we do not know the underlying facts used to determine the amount of the child support award.


author: Judge Marion F. Edwards, Pro Tempore

text:
    Joshua TORREGANO v. IMPERIUM BUILDERS SOUTH, LLC Imperium Builders South LLC v. Joshua Torregano and Mallori Jaye Williams
    NO. 2016-CA-0644 CONSOLIDATED WITH: NO. 2016-CA-0645
    Court of Appeal of Louisiana, Fourth Circuit.
    FEBRUARY 15, 2017

      Kyle S. Sclafani, 4130 Canal Street, New Orleans, Louisiana 70119, COUNSEL FOR APPELLEE—JOSHUA TORRE-GANO
    James A. Smith, 4501 Marque Drive, New Orleans, Louisiana 70127, APPEARING IN PROPER PERSON AS REPRESENTATIVE FOR APPELLANT—IM-PERIUM BUILDERS SOUTH, LLC
    (Court composed of Judge Daniel L. Dysart, Judge Madeleine M. Landrieu, Judge Marion F. Edwards, Pro Tempore)
   Judge Marion F. Edwards, Pro Tempore

111mperium Builders South, LLC, appeals a final judgment entered against it and in favor of Joshua Torregano and his wife, Mallori Jaye Williams, in which the district judge concluded, among other things, that the Torreganos were justified in cancelling their residential construction contract with Imperium and that Imperi-um was not entitled to breach of contract damages. Noticing sua sponte, however, that Imperium’s motion for appeal was defective, we must dismiss Imperium’s appeal because the district court has yet to be divested of jurisdiction. We now explain our reasons in more detail.

I

On May 22, 2013, Imperium entered into a residential construction agreement with the Torreganos for the construction of a single-family residence in New Orleans, Louisiana. The contract had a total value of $194,000.00, subject to additions and deletions by change order as allowed under the contract. In accordance with the loan obtained jointly by the Torrega-nos, payment was separated into six draws, which were predicated upon the work approval of, among Mothers, the Torreganos. As the project neared completion, a conflict arose between Imperi-um and the Torreganos regarding their reciprocal obligations for the payment, and reimbursement, of changes and additions to the project. The conflict escalated on September 27, 2013, when, after a heated discussion, James Smith, Imperi-um’s principal, struck Mr. Torregano. The Torreganos then canceled the contract and refused to approve Imperium’s draw request for $32,800.00 in work that had already been completed.

On November 13, 2013, Imperium filed its first Statement of Claim of Lien and Privilege on the property for the alleged amount outstanding. On November 13, 2013, the Torreganos filed a petition to cancel and erase the statement of lien. After concluding that Imperium was not a licensed contractor according to the terms of La. R.S. 37:2175.6, and thus not entitled to take advantage of the statute’s lien provisions, the district judge ordered that the lien be removed from the mortgage records and that Imperium pay the Torrega-nos’ associated attorney’s fees and court costs. Shortly thereafter, Imperium filed a second Statement of Claim of Lien and Privilege on the property. The Torreganos again responded with a petition to cancel, which the district judge again granted after finding for a second time that Imperi-um was not a properly licensed contractor entitled to take advantage of the builder’s lien privilege.

On January 10, 2014, Imperium filed suit against the Torreganos for breach of contract and unjust enrichment, alleging that it was entitled to the outstanding balance remaining on the contract price, as well as the 5% contractor’s fee. The |aTorreganos responded with an answer and reconven-tional demand for breach of contract against Imperium, and a third-party demand against Mr. Smith in his individual capacity for damages stemming from the physical altercation of September 27, 2013. Imperium’s suit was subsequently transferred and consolidated with the Torrega-nos suit seeking the lien cancellations.

The matter proceeded to trial, after which, the district judge denied Imperi-um’s principal demand, and concluded that the Torreganos had sufficient cause to terminate the contract yet failed to prove monetary damages in excess of the contract price. The district judge additionally concluded that Imperium willfully and improperly placed a lien on the Torregano’s property and rendered judgment in favor of the Torreganos for $1,500.00. The district judge further found that Mr. Smith committed a battery upon Mr. Torregano and awarded him $3,500.00 in damages. The judge, however, also found that the Torreganos failed to establish that Mr. Smith committed an assault or battery upon Ms. Williams and, accordingly, denied her third-party claim against Mr. Smith. The district judge signed a final judgment memorializing her ruling on December 10, 2014.

On January 7, 2016, Imperium, which had heretofore been represented at ah times by retained counsel, attempted to appeal this matter devolutively by way of a motion filed by Mr. Smith, a third-party, non-attorney defendant. In other words, while Mr. Smith has not sought an appeal of that portion of the judgment rendered |4against him in his individual capacity, he has sought, in a representative capacity, to appeal the judgment rendered against Im-perium. The district judge, nevertheless, signed the order and this matter was placed in due course upon our docket. We observe, however, that Mr. Smith has never held himself out as, nor does he currently claim to be, an attorney licensed by the State of Louisiana. While those who appear before the courts of this state have the right and privilege of representing themselves pro se, people who are not licensed by the state to practice law cannot, with but few exceptions, represent other persons or parties before this state’s courts. See Price v. Taylor, 139 So.2d 230, 233 (La. App. 1st Cir. 1962). Accordingly, we are constrained to conclude that the motion for appeal filed on behalf of Imperi-um by Mr. Smith in a representative capacity did not divest the district court of jurisdiction. We must, therefore, dismiss Imperium’s appeal. We now explain our reasoning in more detail.

II

The Louisiana Constitution of 1974 provides for our appellate jurisdiction and our supervisory jurisdiction. See La. Const. Art. 5, § 10(A). “Appeal is the exercise of the right of a party to have a judgment of a trial court revised, modified, set aside, or reversed by an appellate court.” La. C.C.P. Art. 2082. This Court has stated that perfecting an appeal of a judgment in a civil matter, such as here, requires three procedural elements: “(1) a motion or petition for appeal, (2) an order of appeal, and (3) notice of appeal.” Bremermann v. Bremermann, 05-0547, 2 (La.App. 4 Cir. 1/11/06), 923 So.2d 187, 188 (quoting Ratcliff v. Boydell, 566 So.2d 197, 199 (La. App. 4 Cir.1990)).

Here, a motion for appeal on Im-perium’s behalf was filed by Mr. Smith, who is not a licensed attorney. The performance of any act in connection with proceedings before a court of record in a representative capacity, however, is clearly within the definition of the practice of law contained in Section 212 of Title 37 of the Louisiana Revised Statutes, and only a duly licensed person may engage in the practice of law according to the provisions of Section 213 of Title 37. See \ «Price, 139 So.2d at 233. While Mr. Smith could have procured an appeal from that portion of the district court’s judgment which found him personally liable for damages to Mr. Torregano, he chose not to seek review of that portion of the judgment. Rather, he filed a pro se motion in his individual capacity seeking appellate review on Imperi-um’s behalf. Mr. Smith, however, was prohibited by the provisions of these two Sections from filing such a pleading in this manner.

In light of Section 213’s prohibitions, we must conclude that the pro se motion for appeal filed by Smith seeking appellate review on Imperium’s behalf, as well as the subsequent order granting the motion, “is of no legal effect.” Deal, 36,168, p. 10, 824 So.2d at 547. See also Price, 139 So.2d at 233 (“The appeal taken by defendant L. Norman Taylor on behalf of his co-defendants was, under the circumstances shown, without legal effect,”). Impertan, accordingly, did not file a legally effective motion for appeal and the subsequently signed order did not divest the district court of jurisdiction.

17Because the jurisdiction of an appellate court attaches only upon the granting of an order of appeal, we must likewise conclude that the order at issue did not serve to invest this court with appellate jurisdiction. See La. C.C.P. Arts. 2088, 2121; Brennan’s, Inc. v. Colbert, 13-0943, p. 4 (La.App. 4 Cir. 9/26/13), 125 So.3d 537, 539 (citations omitted). We must, therefore, dismiss Imperium’s appeal. See Stein v. Martin, 98-1370, pp. 3-4 (La.App. 4 Cir. 11/18/98), 723 So.2d 1038, 1040 (“The order of appeal is essential in the preservation of the appellant’s right to appeal.... Failure of the appellant to obtain the order of appeal forfeits his right to appeal.... Thus, the appellate court has the authority to dismiss an appeal on its own motion or on motion of any party when the appellant has no right to appeal.”) (citations omitted, emphasis in original).

DECREE

Impertan Builders South, LLC’s appeal of the December 10, 2014 judgment in favor of Joshua Torregano and Mallori Jaye Williams is dismissed.

APPEAL DISMISSED

      . The Torreganos suit was still active at this time, despite the lien cancellations, because the Torreganos' motion for sanctions against Imperium for its refusal to timely cancel the liens was still pending at the time of the transfer/consolidation order.

      . La. R.S. 37:212 provides in pertinent part:
      A. The practice of law means and includes: (1) In a representative capacity, the appearance as an advocate, or the drawing of papers, pleadings or documents, or the performance of any act in connection with pending or prospective proceedings before any court of record in this state; or

      B. Nothing in this Section prohibits any person from attending to and caring for his own business, claims, or demands; ...
      C. Nothing in this Section shall prohibit any partnership, corporation, or other legal entity from asserting or defending any claim, not exceeding five thousand dollars, on its own behalf in the courts of limited jurisdiction or on its own behalf through a duly authorized partner, shareholder, officer, employee, or duly authorized agent or representative. No partnership, corporation, or other entity may assert any claim on behalf of another entity or any claim assigned to it.
      We note that Part C of Section 212 is inapplicable to Imperium in this case because its claim for breach of contract damages clearly exceeds this part’s $5,000.00 limitation.

      .La. R.S. 37:213 provides in pertinent part:
      A. No natural person, who has not first been duly and regularly licensed and admitted to practice law by the supreme court of this state, no corporation or voluntary association except a professional law corporation organized pursuant to Chapter 8 of Title 12 of the Revised Statutes, and no partnership or limited liability company except one formed for the practice of law and composed of such natural persons, corporations, voluntary associations, or limited liability companies, all of whom are duly and regularly licensed and admitted to the practice of law, shall:
      (1) Practice law,...
      (4) Render or furnish legal services or advice.
      There is nothing in the record to even suggest that Imperium is, according to Part A, a limited liability company, “formed for the practice of law,” and composed of natural persons “all of whom are duly and regularly licensed and admitted to the practice of law.”

      . The motion for appeal at issue reads: "NOW INTO COURT, through undersigned defendant [James Aaron Smith], comes IM-PERIUM Builders South, LLC, made defendant in this cause, which, with respect, moves that ... Mover desires to devolutively appeal said [December 10, 2015] Judgment.”

      . We think it of no moment that Mr. Smith was Imperium's principal. As we have noted, "even where a limited liability company has a sole shareholder, it is an entity separate and distinct from that shareholder in terms of procedural capacity.” Bankston v. Tasch, LLC, 09-1573, pp. 5-6 (La.App. 4 Cir. 6/2/10), 40 So.3d 495, 498. See also Deal v. Lexing-Powell, 36,168, p. 10 (La.App. 2 Cir. 8/16/02), 824 So.2d 541, 547 ("As a distinct legal entity, CWD must bring its own appeal. The appeal by Deal of an order and judgment dismissing the claims of CWD is of no legal effect.”).