author: MOORE, J.

text:
    U.L. COLEMAN, III, et al., Plaintiff-Appellants v. QUERBES COMPANY NO. 1, et al., Defendant-Appellees
    No. 51,159-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered February 15, 2017
    ■ Rehearing Denied March 30, 2017

      ADAMS & REESE, LLP, By: Richard B. Eason, II, Martin A. Stem, E. Gregg Barrios, Raymond P. Ward, Counsel for U.L. Coleman, III, et al.
    LAW OFFICES OF JOSEPH .LOONEY, By: Joseph Looney, Counsel for U.L. Coleman, III, et al.
    BLANCHARD, WALKER, O’QUIN & ROBERTS, By: M. Thomas Arceneaux, John T. Cox, Stacey D. Williams, Brian C. Flanagan, Counsel for Querbes Company No. 1, et al.
    McMICHAEL, MEDLIN, D’ANNA, WEDGEWORTH &■ LAFARGUE; LLC, By: James C. McMichael, Counsel for U.L. Coleman, III, et al.
    PHELPS DUNBAR, LLP, By: Randy Roussel, Gregory Stevens, Amanda W. Messa, Counsel for U.L. Coleman, III, et al.
    LYNN TILLOTSON PINKER & COX, LLP, By: John T. Cox, III, Erie W. Pinker, Counsel for Querbes Company No. 1, et al.
    Before WILLIAMS, DREW and MOORE, JJ.
   MOORE, J.

liU.L. Coleman III (“Coleman”) and other plaintiffs appeal a judgment that sustained peremptory exceptions of no cause of action, no right of action and prescription and dismissed virtually all claims against the defendants, Querbes Company No. 1 (“Querbes # 1”) and its constituent partners (“the Querbes parties”). For the reasons expressed, we affirm.

Factual Background

The Querbes parties owned a 21.6-acre tract of land in southeast Shreveport, to the east of Youree Drive and north of East 70th Street. Coleman is a realtor and land developer. In 1985 and 1986, they discussed plans to develop the tract, beginning with the 6.7-acre northern portion of the tract. The Querbes parties formed a partnership, Querbes # 1, to effectuate the project. On April 30, 1986, they executed four contracts. The first three pertained to the 6.7-acre tract, which was to be developed as One Bellemead Centre, 6425 Your-ee Drive:

Articles of Partnership. Coleman and Querbes # 1 formed a partnership called Querbes-Coleman No. 1 (later converted to an LLC, and referred to herein as “Querbes-Coleman”). The purpose was to develop One Bellemead Centre. Coleman’s interest was 25% and he was designated managing partner; Querbes # l’s interest was 75%.

Development Agreement. Querbes # 1, as owner, contracted with one of Coleman’s business entities, U.L. Coleman Company Ltd. (“ULCC”), as manager, to manage, control, supervise, etc., the building that became One Bellemead Centre. The Development Agreement was to terminate “on the later of the substantial completion of construction or upon completion and occupancy of 90% of the rentable area of the building.”

^Management Agreement. Querbes-Coleman—the partnership formed that day—hired another of Coleman’s business entities, U.L. Coleman Properties Ltd. (“ULCP”), as agent, to be the exclusive manager for the operation, management and leasing of Qne Bellemead Centre. ULCP was to receive 5% of monthly gross receipts from the operation of the property.

The fourth contract pertained to the 14.9-acre tract adjacent to One Bellemead Centre, also owned by Querbes # 1. It is labeled simply:

Agreement. Noting its need for “technical assistance,” Querbes # 1 agreed with Coleman to enter “such agreements as may be necessary” to develop the adjacent tract, which “may include a joint venture of partnership * * *, development agreement, management agreement, and property management agreement.” If Querbes # 1 elected to develop the adjacent tract, it would form a partnership, joint venture or corporation with Coleman; if not, and Querbes # 1 decided simply to sell .the adjacent tract, then Coleman would be paid a real estate commission in an amount to be agreed on at the time of the sale.

The crucial issue in this appeal is Coleman’s contention that the Agreement created a joint venture with respect to the adjacent tract, and the defendants’ contention that it did not.

As a result of these four contracts, One Bellemead Centre was owned 25% by Coleman and 75% by Querbes # 1. Construction began on the five-story brick- and-glass modern-style suburban office building in late 1986 and was completed in 1987, effectively terminating the Development Agreement. As stated in the three documents, Coleman served as managing | ¡¡partner; his company, ULCP, served as property manager. Coleman arranged an $8.6 million loan from First National Bank to finance the project. Apparently, the operation of One Bellemead Centre went smoothly until the mid-1990s, when its principal tenant, IBM, downsized, drastically reducing the building’s occupancy. By 1998, rent was no longer sufficient to service the debt.

According to Coleman, the defendants embarked on an intricate course of “secret” conduct to oust him from the enterprise:

• In November 1998, the partners of Querbes # 1 formed a new company, Querbes Company No. 2 LLC (“Querbes # 2”) and transferred the adjacent tract to Querbes #2, for no consideration. Coleman felt this was a bald attempt to shut him out of the future development of the adjacent tract, even though he believed that under the contracts he was entitled to a 25% interest.

• Days later, the partners of Querbes # 1 attempted to refinance the debt, paying off the loan to First National and borrowing $4.6 million from GECC. George Nelson, one of Querbes # l’s managing partners (also president of First National’s successor bank, Bank One), advised GECC that Querbes # 1 intended to terminate Coleman as managing partner of Querbes-Coleman, remove ULCP as property manager, and install its own managers, Nelson and Ms. Joseph, as managers of the property. GECC, however, replied that it would not honor its loan commitment if these changes were made. At this time, Querbes-Coleman converted to an LLC and executed an Operating Agreement that retained the same ownership ratio as before and retained Coleman as the managing member. In late November, GECC [¿refinanced, specifying that Coleman would remain on as managing partner and ULCP as property manager.

• In April 2004, Querbes # 2 sold part of the adjacent tract, paying $46,430 to a company owned by Nelson. Coleman later uncovered a string of emails showing that the buyer was concerned that Coleman would exercise his rights under the Operating Agreement and thus “hamper” the development of the property, but Nelson replied that they were trying to “get rid of’ Coleman.

• In May 2008, the Querbes parties made a cash call of $4 million to pay off the debt to GECC. Their stated purpose was to make One Bellemead Centre debt-free and to perform maintenance work; however, Coleman felt the ulterior motive was to force him to sell his 25% interest in Querbes-Coleman and thereby oust ULCP from the Management Agreement.

Nevertheless, Coleman was able to meet the capital call; he retained his 25% interest. Querbes-Coleman paid off the GECC loan. Querbes # 1, using its 75% interest in Querbes-Coleman, terminated the latter’s Management Agreement with ULCP on May 28, 2008.

Procedural History

Coleman, ULCP and Querbes-Coleman filed this suit for injunctive relief and damages in July 2008. Defendants were Querbes # 1 and the Querbes parties. Discovery and incidental actions proceeded over the next 6½ years (consuming over 3,200 pages of transcript).

By reconventional demand, filed in February 2014, the defendants alleged various reasons for wanting Coleman and ULCP out of the project, such as using a business in which he held a financial interest, Sequoia | ^Construction Co., to perform maintenance on One Bellemead Centre, resulting in a double payment; they also joined Sequoia as a defendant in reconvention.

A fourth supplemental and amending petition, filed in July 2015, identified 11 separate causes of action (called “counts”):

1. Breach of fiduciary duties owed to Querbes-Coleman and to Coleman;
2. Gross negligence and malfeasance to Querbes-Coleman and the other plaintiffs;
3. Breach and bad-faith breach of the joint venture agreement;
4. Breach and bad-faith breach of the Operating Agreement;
5. Breach and bad-faith breach of the Development Agreement;
6. Detrimental reliance by Coleman and ULCP;
7. Breach of the Management Agreement and prospective management agreement;
8. Fraud and conspiracy to commit fraud in breaching the Operating Agreement and Management Agreement;
9. Intentional tortious interference with the Management Agreement;
10. Unfair trade practices; and
11. Alternative demand to pierce the corporate veils of Querbes # 1 and Querbes # 2.

The defendants filed numerous exceptions to the original and each supplemental and amending petition. As applied to the fourth supplemental and amending petition, these specified:

• No cause of action, as to Counts 1-10;
• No right of action, as to Counts 1-5 and 7-10;
• Prescription or peremption as to all counts.

A hearing on the exceptions was held over four days between September 21 and October 23, 2015. The parties stipulated that any judgment rendered against Querbes # 1 would be enforced against the partnership before the partners, and that Querbes-Colemaris claims were derivative. They also stipulated that the exception of prescription would be sustained as to conduct occurring before July 3, 2007, and withdrawn as to ^conduct after that date on Counts 1 and 2; a similar cutoff date of July 3, 1998, applied to Count 4; a similar cutoff date of July 3, 2006, applied to Counts 8 and 9; and the exception of prescription was withdrawn as to Count 10. The parties introduced some 180 exhibits and called, over three days’ time, three witnesses. George Nelson, the lead partner in Querbes # 1, and U.L. Coleman, the lead plaintiff, recounted the events surrounding the formation of Querbes-Cole-man, their respective understandings of the nature of their agreement, and the long business relationship that followed. William Comegys III, the attorney who drafted the 1986 contracts, also testified, concerning his understanding of the agreement. After the parties rested and gave extensive arguments on the merits, counsel for Coleman objected that no evidence was admissible “for no cause or no right of action.”

After taking the matter under advisement, the court orally ruled that there was no joint venture agreement, as all the contracts referred to “the potential for a future joint venture.” Only one relationship was actually formed, for One Bellemead Centre, and Coleman may have had a claim for commissions or special services, but these were “clearly prescribed.” The court later issued a 30-page written findings of fact and conclusions of law, and rendered judgment sustaining the exceptions of no cause of action as to Counts 1, 3, 5, 6, 7, 8 and 9; no right of action with respect to Coleman’s individual claims, as to Counts 1, 2, 4 and 8; prescription as to Counts 1, 2, 4, 5, 6, 7 and 10; and no cause or right of action with respect to the claims against the Querbes parties individually, as to Counts 2,4, 5, 7 and 8.

|vThe plaintiffs have appealed, designating four assignments of error.

Assignment No. 1: No Cause of Action

By their first assignment of error, the plaintiffs urge the district court erred in sustaining the exceptions of no cause of action with respect to Counts 1, 3, 5, 7, 8 and 9. As a prefatory matter, they argue the standard of review is de novo, as the exception raises only a question of law, and the trial court’s decision should be based only on the sufficiency of the petition. Ba- deaux v. Southwest Computer Bureau Inc., 2005-0612 (La. 3/17/06), 929 So.2d 1211. The fact that the court received evidence at the hearing did not convert the matter into a “mini-trial,” Villareal v. 6494 Homes LLC, 48,302 (La.App. 2 Cir. 8/7/13), 121 So.3d 1246.

The defendants respond that the standard of review is manifest error, as the parties voluntarily submitted evidence and thus expanded the scope of the pleadings, Jordan v. Sweeney, 467 So.2d 569 (La. App. 1 Cir.), writ denied, 469 So.2d 985 (1985). Because both sides presented evidence on the exception of no cause of action without objection, “both sides have consented to the consideration thereof.” Boykin v. Foster, 493 So.2d 731 (La. App. 2 Cir. 1986).

This court is fully cognizant of the general rule that the exception of no cause tests only the legal sufficiency of the petition and should be denied unless it appears beyond doubt that the plaintiff can prove no set of facts that would entitle him to relief. Industrial Cos. Inc. v. Durbin, 2002-0665 (La. 1/28/03), 837 So.2d 1207; Hall v. James, 43,263 (La.App. 2 Cir. 6/4/08), 986 So.2d 817. However, we also adhere to the well-settled exception whereby a court may consider evidence admitted without objection to enlarge the pleadings. Maw Enters. LLC v. City of Marksville, 2014-0090 (La. 9/3/14), 149 So.3d 210; Rogers v. Ash Grove Cement Co., 34,934 (La.App. 2 Cir. 11/2/01), 799 So.2d 841, writ denied, 2001-3187 (La. 2/8/02), 808 So.2d 351 (collecting cases).

Plaintiffs’ counsel began the hearing by urging the district court to “listen to the evidence * * * one by one,” referring to the three witnesses and “probably 150 exhibits to go through.” Only after three days of testimony and documentary evidence did counsel suggest to the court that many of the things “raised here are summary judgment issues and are not issue for no cause of action[.]” Nevertheless, the plaintiffs briefed the merits, submitting proposed findings of fact as to each cause of action. In these circumstances, it is disingenuous for the plaintiffs to contend the district court could not consider the mountain of evidence introduced over three days’ time. The thrust of the exceptions was that the parties never had an agreement to develop the adjacent tract, only an agreement (stated in the Agreement) to “enter such agreements as may be necessary” to do so. The defendants contended that no such future agreement ever was reached, and over the course of three days the parties offered a prodigious amount of evidence to prove or disprove this fact. On this record, the district court was fully entitled to consider the evidence introduced. We will review its findings under the manifest error standard.

Count 3: The plaintiffs contend that they stated a cause of action for breach of “the joint venture agreement” between Coleman and Querbes # 1 to 1 ¡¡develop the entire 21.6-acre tract. They concede that the partnership they formed, Querbes-Coleman, had the stated purpose to develop only the first 6.7 acres, which later became One Bellemead Centre. They argue that the other contract they executed, the Development Agreement, applied to the remaining 14.9 acres: if the parties agreed , to develop this tract, they would follow the same formula that governed One Bellemead Centre, form another joint venture, divide ownership and risk 75/25, and award all contracts for development, construction and management to ULCC. Because the overall structure of the Articles of Partnership and the Agreement contemplated the formation of “another joint venture” for the specific purpose of developing the adjacent tract, the plaintiffs contend that some set of facts may exist to prove “another joint venture.” Finally, they contend that even though their proposed joint venture pertained to developing real property, it was not a transfer of real property and thus was not subject to La. C.C. Art. 1839’s requirement of a writing. Grand Isle Campsites Inc. v. Cheek, 262 La. 5, 262 So.2d 350 (1972).

A joint venture is a juridical person created by an agreement between two or more persons to combine their efforts or resources in determined proportions and to collaborate at mutual risk for their common profit or commercial benefit. Scheffler v. Adams & Reese LLP, 2006-1774 (La. 2/22/07), 950 So.2d 641; Palmer v. Vermillion Home Bldrs. LLC, 48,838 (La.App. 2 Cir. 2/26/14), 134 So.3d 1248, writ denied, 2014-0946 (La. 8/25/14), 147 So.3d 1119. The principal difference between a partnership and a joint venture is that a partnership is ordinarily formed for the transaction of a general business of a given kind, while a joint venture is Unusually (but not necessarily) limited to a single transaction, although the business of conducting it to a successful conclusion may take many years. Palmer v. Vermillion Home Bldrs., supra; Riddle v. Simmons, 589 So.2d 89 (La. App. 2 Cir. 1991), writ denied, 592 So.2d 1316 (1992). A joint venture may be formed by an oral agreement, and the existence of a joint venture may be inferred from the conduct of the parties and other circumstances. Id.

This large record fully supports the district court’s conclusion that the parties never entered any joint venture to develop the adjacent tract. A plain reading of the Articles of Partnership, Development Agreement and Management Agreement shows that this venture applied only to the 6.7-acre tract that became One Belle-mead Centre. The Agreement, executed the same day, addressed development of the adjacent tract, but specifically referred to “such agreements as may be necessary” and that “may include a joint venture of partnership.” In short, it plainly contemplated a prospective or future joint venture. The parties never executed, in furtherance of the adjacent tract,, any documents equivalent to the April 1986 agreements. In short, there is.no written proof of the alleged joint venture.

A joint venture may also be formed by oral agreement, but the plaintiffs’ own allegations effectively negate even the remotest prospect that these parties ever entered a joint venture to develop the adjacent tract. For instance, starting in 1998, the defendants formed a new company, Querbes # 2, to develop the adjacent tract; they tried to oust Coleman from management when they sought refinancing; they later sold the adjacent property, and still later issued a capital call in an effort to make Coleman divest. It is unclear how any of this evidence would support a claim that |ndefendants entered a joint venture with the plaintiffs to develop the adjacent tract. The witnesses’ testimony only strengthens this fact: Coieman and Nelson both described a business relationship that deteriorated into animosity. In short, there was no written or oral evidence that would support Count 3. The district court did not err . in sustaining the exception.

Count 1: The plaintiffs contend that all defendants owed Coleman a fiduciary duty and breached it when they replaced him as managing member of Querbes-Coleman in 2008. The district court found that as managing member of. ■Querbes-Coleman, Querbes #1 was owed a fiduciary duty under La. R.S. 12:1314 A(l), not Colenian himself. The plaintiffs urge that there a,re other sources, including the “ongoing joint venture” and the Articles of Partnership.

For the reasons already discussed, there was no “ongoing joint venture” • between the parties other than agreements executed in 1986 and the Operating Agreement executed in 1998. The district court did not err in finding that a nonexistent “joint venture” imposed no fiduciary duty.

Moreover, the Operating Agreement converted Querbes-Coleman into an LLC. By this document, the parties superseded the earlier Partnership Agreement. While the Operating Agreement specifically continued “capital accounts, distributions, and allocations of profits and losses[,]” it was silent as to the creation of any fiduciary duties. Presumably, the parties intended only those fiduciary duties of members and managers described in R.S. 12:1314. The Operating Agreement is simply not a source of any additional fiduciary duty. The district court did not err in sustaining the exception.

_J¿¿Count 5: The plaintiffs contend that the defendants breached the Development Agreement by deliberately making it impossible to perform, a violation of good faith, La. C.C. Arts. 1759 and 1983. They cite Querbes # l’s conduct in transferring the adjacent tract to Querbes # 2 as foreclosing Coleman’s right to develop that tract. They characterize this as an “absolute, active breach,” 6 Litvinoff, Obligations § 1.12 (West 1999); Auto-Lec Stores v. B. & B. Sys., 162 So. 231 (La. App. 2 Cir. 1935). They submit the court was factually and legally wrong to find the Development Agreement gave Querbes # 1, and not Coleman, the exclusive right to determine whether to develop or sell the adjacent tract. They also argue that the question is one for the jury, not for decision by exception of no cause of action.

The Development Agreement states that “[i]n the event Querbes elects not to develop either all or part of the property, but instead elects to sell a particular tract or all of the property to an unrelated third party,” then Coleman would be paid a real estate commission to be fixed “at the time Querbes elects to make the sale.” It also says that the parties expressly understood and agreed that Querbes could receive offers concerning the property “to which Coleman has contributed nothing either in terms of value or availability of those offers.” In short, the Development Agreement granted Querbes # 1 the exclusive authority to develop or sell any part of the property, and it did so. There is no conceivable set of facts that would show a breach of this fairly straightforward agreement. The district court did not err in sustaining the exception.

Count 7: The plaintiffs contend that ULCP and ULCC are third-party beneficiaries of the Development Agreement and thus have a cause of | ^action. They again dispute the court’s conclusion that there was no joint venture with respect to the adjacent tract, and argue that they stated a claim for third-party rights under La. C.C. Arts. 1978 and 1981.

The Development Agreement designated ULCC as manager of One Bellemead Cen-tre. However, for the reasons already discussed, the Agreement did not create any joint venture with respect to the adjacent tract. Without any source of an obligation to which ULCP and ULCC would be third-party beneficiaries, there is no conceivable set of facts under which they would have a claim. The district court did not err in sustaining the exception.

Count 9: The plaintiffs contend they stated a cause of action against Nelson and Ms. Joseph, individually, for fraudulent interference with the Management Agreement. Specifically, they challenge the district court’s finding that under 9 to 5 Fashions Inc. v. Spurney, 538 So.2d 228 (La. 1989), a claim for fraudulent interference is allowed “only against an officer of a corporation.” They concede that this cause of action is narrow, but argue that Spwmey’s holding is limited to corporations and must be deemed superseded by the 1992 enactment of Louisiana’s Limited Liability Company law, La. R.S. 12:1301, et seq. In the plaintiffs’ view, courts have applied Spwmey to “analogous situations,” such as Yarbrough v. Federal Land Bank Ass’n of Jackson, 616 So.2d 1327 (La. App. 2 Cir. 1993), and one court has expanded the concept “corporate officer” to include “chief technology officer,” Active Solutions LLC v. Dell Inc., 2010-1590 (La.App. 4 Cir. 7/21/11), 73 So.3d 934.

|14An officer of a corporation owes an obligation to a third person having a contractual relationship with the corporation to refrain from acts intentionally causing the corporation to breach the contract or to make performance more burdensome, difficult or impossible or of less value to the one entitled to the performance, unless the officer has reasonable justification for his conduct. 9 to 5 Fashions v. Spurney, supra at 231. The cause of action is “narrowly defined” for the breach of a duty by a corporate officer. Dhaliwal v. Dhaliwal, 49,973 (La.App. 2 Cir. 11/25/15), 184 So.3d 773, writ denied, 2016-0236 (La. 4/4/16), 190 So.3d 1204; Lynn v. Berg Mechanical Inc., 582 So.2d 902 (La. App. 2 Cir. 1991).

The plaintiffs have not alleged, and the record does not show, that Nelson or Ms. Joseph was a corporate officer of Querbes-Coleman; in fact, as a partnership (later an LLC), this entity did not have any corporate officers. Given the extremely narrow scope of the tort of intentional interference, this court is unwilling to extend it beyond the boundaries traced in Spwmey. We are constrained to observe that in Yarbrough v. Federal Land Bank Ass’n, supra, the defendant was a bank president and clearly a corporate officer. In Active Solutions v. Dell, supra, the court affirmed a judgment against the City of New Orleans’s chief technology officer but did not address whether he was a corporate officer; it merely assumed this (asking, perhaps rhetorically, “Who can doubt that Meffert as a public official owed a duty to the plaintiffs-appellants to perform in a manner consistent with his official duties?!”). Finally, we recognize the general provision, under La. R.S. 12:1303 A, that an LLC has the powers, rights and privileges of a corporation, and that managers owe a fiduciary duty to the |1BLLC and its members, La. R.S. 12:1314 A(l), but the plaintiffs have not cited, and we have not found, any specific provision extending the liability of LLC managers to third parties under the terms established in Spwmey. The district court did not err in sustaining the exception.

Count 8: The plaintiffs contend they stated a cause of action for conspiracy to fraudulently breach the Operating Agreement and the Management Agreement. They argue the district court misinterpreted New Orleans Jazz & Heritage Found. v. Kirksey, 2009-1433 (La.App. 4 Cir. 5/26/10), 40 So.3d 394, writ denied, 2010-1475 (La. 10/1/10), 45 So.3d 1100, which held that the action is for the underlying tort, not the conspiracy. Even without the conspiracy, they submit, fraud is a recognized intentional tort, Boudreaux v. Jeff, 2003-1932 (La.App. 1 Cir. 9/17/04), 884 So.2d 665.

An independent cause of action for civil conspiracy does not exist in Louisiana; rather, the actionable element is the intentional tort that the conspirators agreed to commit or committed, in whole or part, causing the plaintiffs injury. Haygood v. Dies, 48,485 (La.App. 2 Cir. 11/20/13), 127 So.3d 1008, writ denied, 2013-2955 (La. 2/28/14), 134 So.3d 1177; Hardy v. Easterling, 47,950 (La.App. 2 Cir. 4/10/13), 113 So.3d 1178. The plaintiffs’ argument makes it clear that the intentional'-tort being asserted is intentional interference with contracts. However, < for the reasons already discussed, Querbes # 1, Nelson and Ms. Joseph are not liable for intentional interference because they are not corporate officers of Querbes-Cole-man. There is no conceivable set of facts under which a cause of action can be stated, and the district court did not err in sustaining the exception.

|1(!jVo Right of Action

By the second assignment of error, Coleman urges the district court erred in sustaining the exceptions of no right of action as- to Coleman individually, in Counts 1, 2, 4 and 8. He concedes the hornbook law that a member of an LLC has no separate or individual cause of action against third persons for wrongs committed against or causing damage to the LLC, Glod v. Baker, 2002-988 (La.App. 3 Cir. 8/6/03), 851 So.2d 1255, writ denied, 2003-2482 (La. 11/26/03), 860 So.2d 1135. He contends, however, that the rule does not apply when the loss is suffered by an individual member and not by the company. He argues that this was recognized, in dictum, in Thornton ex rel. Laneco Const. Systs. v. Lanehart, 97-2871 (La.App. 1 Cir. 12/28/98), 723 So.2d 1127, writ denied, 99-0177 (La. 3/19/99), 740 So.2d 115. He concludes-that the defendants’ breaches of fiduciary duties brought direct loss to him, and reiterates the fiduciary duty owed him under La. R.S. 12:1314 B.

Only a person having a real and actual interest to assert may bring an action. La. C. C. P. Art. 681. The peremptory exception of no right of action tests whether the plaintiff has a legal interest in judicially enforcing the right asserted. La. C. C. P. Art. 927 A(6); Skannal v. Bamburg, 44,820 (La.App. 2 Cir. 1/27/10), 33 So.3d 227, 175 Oil & Gas Rep. 597, writ denied, 2010-0707 (La. 5/28/10), 36 So.3d 254. It questions whether the plaintiff belongs to the class of persons to whom the law grants the cause of action asserted in the suit. Louisiana Paddlewheels v. Louisiana Riverboat Gaming Com’n, 94-2015 (La. 11/30/94), 646 So.2d 885. Whether a plaintiff has a right of 117action is a question of law that is subject to de novo review. Skannal v. Bamburg, supra.

A member, manager, employee or agent of a limited liability company is not a proper party to a proceeding by or against a limited liability company, except when the object is to enforce such a person’s rights against or liability to the limited liability company. La. R.S. 12:1320 C. This court and others have consistently applied § 1320 as written, holding that a member of an LLC has no right of action to assert a claim belonging to the LLC. Double-Eight Oil & Gas LLC v. Caruthers Prod. Co., 44,199 (La.App. 2 Cir. 5/20/09), 13 So.3d 754; Alden v. Louisiana Citizens Prop. Ins. Co., 2016-0044 (La.App. 4 Cir. 6/29/16), 197 So.3d 312; Glod v. Baker, supra. The district court found that all the alleged fiduciary duties were in favor of Querbes-Coleman, the LLC, of which Coleman was a member. On de novo review, we find no error.

We acknowledge the dictum in Thornton v. Laneco Const. Systs., supra: “However, there may be instances in which the breach of fiduciary duty causes a direct loss to the shareholder, but not to the corporation, in which case the shareholder may have a right to sue individually. See Wilson v. H.J. Wilson Const. Co., 430 So.2d 1227 (La. App. 1 Cir.), writ denied, 437 So.2d 1166 (1983).” We must observe, however, that the Thornton court found no direct loss to the shareholder, mooting the exception of no right of action, and the Wilson court found the shareholder’s claim was actually a derivative action under the former La. R.S. 12:91 (repealed by 2014 La. Acts No. 328, effective 1/1/2015). In short, the formula in Thornton is merely dictum. In the recent case of Montgomery v. Lester, 2016-192 (La.App. 3 Cir. 9/28/16), 201 So.3d 966, writ denied, 2016-1944 (La. 12/16/16), 212 So.3d 1173, 2016 WL 7638434, the court relied on evidence that even though an LLC was the registered owner of a horse, the LLC members were its true owners and had the right of action for damages to the horse. No such evidence is present in the instant case. The district court did not err in sustaining the exception of no right of action.

Prescription

By their third assignment of error, the .defendants urge the district court erred in sustaining the exceptions of prescription as to Counts 1, 2, 4, 5, 7 and 10. They show that prescription statutes must be strictly construed, always applying the construction that favors maintaining the claim. Wells v. Zadeck, 2011-1232 (La. 3/30/12), 89 So.3d 1145. They further argue that the exception of prescription poses a question of law and is thus subject to de novo review, citing Fox v. Reynolds Indus. Contractors Inc., 46,695 (La.App. 2 Cir. 11/16/11), 79 So.3d 1140.

When prescription is raised by peremptory exception, and evidence is introduced at the hearing on the exception, the trial court’s findings of fact are subject to manifest error review. Specialized Loan Servicing LLC v. January, 2012-2668 (La. 6/28/13), 119 So.3d 582, 80 UCC Rep. 1225; Hogg v. Chevron USA, 2009-2632 (La. 7/6/10), 45 So.3d 991; Blevins v. Long Trusts, 49,605 (La.App. 2 Cir. 2/26/15), 162 So.3d 500. In Fox, this court applied de novo review to the issue of no cause of action, but, contrary to the plaintiffs’ assertion, manifest error to the issue of prescription. In the 113instant case, the district court’s findings will be subject to manifest error review.

Counts 1,2, I and 10: The plaintiffs argue that the district court disregarded the stipulations regarding these counts. The plaintiffs stipulated that conduct occurring before certain dates (July 3, 2007, for Counts 1 and 2, and July 3, 1998, for Count 4) was prescribed, and that prescription for Count 10 was waived; they show that stipulations between the parties are binding on the court when not in derogation of the law. Watkins v. Lake Charles Mem’l Hosp., 2013-1137 (La. 3/25/14), 144 So.3d 944. They contend, however, that the court disregarded the stipulations and sustained the exceptions as to all claims under these four counts. They argue that the defendants committed a “series of related but distinct wrongful acts over a long period of time,” such that the older acts may be prescribed but the newer ones not, citing Fair Farms Inc. v. Holt, 48,246 (La.App. 2 Cir. 8/28/13), 124 So.3d 25, writ denied, 2013-2322 (La. 12/6/13), 129 So.3d 535, and Costello v. Citibank (South Dakota) NA, 45,518 (La.App. 2 Cir. 9/29/10), 48 So.3d 1108.

A stipulation has the effect of a judicial admission or confession, which binds all parties and the court. La. C.C. Art. 1853; Becht v. Morgan Bldg. & Spas Inc., 2002-2047 (La. 4/23/03), 843 So.2d 1109; Lewis v. City of Shreveport, 36,659 (La.App. 2 Cir. 12/11/02), 837 So.2d 44. A stipulation between the parties in a specific case is binding on the court when not in derogation of the law; it is the law of the case. Becht v. Morgan Bldg. & Spas, supra. An admission by a party in a pleading also constitutes a judicial confession and is full proof against the party making it. C.T. Traina Inc. v. Sunshine Plaza Inc., 2003-1003 (La. 12/3/03), 861 So. 2d 156; Todd v. Angel, 47,911 (La.App. 2 Cir. 4/24/13), 114 So.3d 512.

As noted, the parties stipulated that the prescriptive period for Counts 1 and 2 began on July 3, 2007; conduct before that date would be prescribed. As to Counts 1 and 2, the district court found that by the plaintiffs’ own pleading (fourth supplemental and amending petition), the defendants’ alleged efforts to diminish the value of One Bellemead Centre began in at least 2004; their promotion of a takeover of the property allegedly began in the fall of 1998; their alleged failure to render a full and fair disclosure to Coleman and failure to repay members and calculate payments also both began in 1998. The district court was not plainly wrong to find that each of these events placed Coleman on notice of potential breaches of fiduciary duty, gross negligence and malfeasance long before the prescriptive date of July 3, 2007.

The parties stipulated that the prescriptive period for Count 4 was July 3, 1998. However, the district court correctly noted that the prescriptive period for a breach of fiduciary duty claim is one year “from the date of the alleged act, omission, or neglect,” or one year from discovery, subject to a maximum of three years. La. R.S. 12:1502 C. The court then found that by the plaintiffs’ own pleading (fourth supplemental and amending petition), the same incidents constituting the claim of breach and bad-faith breach of the Operating Agreement were the same as those outlined in the preceding paragraph and occurred between 1998 and 2004, well before the period set forth in § 1502 C. Again, we perceive no manifest error.

121 The parties stipulated that all exceptions were waived with respect to Count 10. However, the district court found that a claim under the Louisiana Unfair Trade Practices Act was subject to one-year prescription, La. R.S. 51:1409 E; Glod v. Baker, supra. The court then found that by the plaintiffs’ own pleading (a memorandum in support of response to defendants’ exceptions), all the conduct on which the unfair trade practices were based occurred in 2004. On this record, we perceive no manifest error.

Counts 4, 5 and 7: The plaintiffs show that the same wrongful acts can give rise to different causes of action, In re St Louis Encephalitis Outbreak, 41,250 (La. App. 2 Cir. 9/1/06), 939 So.2d 563, writ denied, 2006-2527 (La. 12/15/06), 945 So.2d 694. They then argue that the different causes of action are subject to different prescriptive periods. They submit that their claims of breach and bad-faith breach of the Operating Agreement and Development Agreement, and breach of the Management Agreement and “prospective management agreement” were not mere fiduciary claims subject to one-year prescription under R.S. 12:1502 C, but also breach of conduct claims subject to 10-year prescription under La. C.C. Art. 3499.

The prescriptive period applicable to an action is determined by the character of the action disclosed in the pleadings. Born v. City of Slidell, 2015-0136 (La. 10/14/15), 180 So.3d 1227; Fishbein v. State, 2004-2482 (La. 4/12/05), 898 So.2d 1260; Johnson v. Ledoux, 42,090 (La.App. 2 Cir. 5/16/07), 957 So.2d 911, writ denied, 2007-1482 (La. 10/5/07), 964 So.2d 946. In Starns v. Emmons, 538 So.2d 275 (La. 1989), a landlord sued his tenant for past due rent, late fees and attorney fees under a lease. The |aalandlord argued that the inclusion of the demand for rent arrearag-es “does not give the suit the character of an action to recover rent,” subject to three-year prescription, La. C.C. Art. 3494, but makes the “entire action sound in contract,” and subject to 10-year prescription, C.C. Art. 3499. The supreme court explicit ly rejected this argument, “because it renders article 3494 useless.” All the actions covered by Art. 3494 essentially arise from contractual relationships; Art. 3494 does not present a choice between a contract remedy and some other remedy. Specifically, Art. 3494 “provides exceptions to the general rule stated in article 3499 that a personal action prescribes in ten years.”

The supreme court refused to treat a wage-claim case as a contract case, for prescription purposes, in Grabert v. Iberia Parish Sch. Bd., 93-2715 (La. 7/5/94), 638 So.2d 645, and refused to treat a claim for compensation for services rendered as a contract claim in Fishbein v. State, supra. Similarly, this court refused to treat a claim for unpaid compensation to a hospital’s medical director as a contract claim, Minor v. Monroe Surgical Hosp., 49,367 (La.App. 2 Cir. 11/19/14), 154 So.3d 665, 39 IER Cases 766, writ denied, 2014-2667 (La. 3/13/15), 161 So.3d 641; refused to treat an unpaid-wage claim as a contract matter, Raborn v. Gulf States Pipeline Corp., 41,974 (La.App. 2 Cir. 4/4/07), 954 So.2d 353, writ denied, 2007-0964 (La. 6/22/07), 959 So.2d 509; and refused to treat a conversion claim against a bank as a breach of contract between bank and customer, Hampton v. Hibernia Nat’l Bank, 598 So.2d 502 (La. App. 2 Cir. 1992). By contrast, the case of In re St. Louis Encephalitis Outbreak, supra, which | ^recognized different causes of action may arise from the same conduct, did not involve a prescription issue.

The district court found that Count 4, breach and bad-faith breach of the Operating Agreement, was essentially a claim of breach of fiduciary duty and subject to one-year prescription under R.S. 12:1502 C. The court also found that Count 5, breach and bad-faith breach of the Development Agreement, and Count 7, breach of the Management Agreement and the “prospective management agreement,” were essentially claims “for recovery of compensation for services rendered, including payment of salaries, wages, commissions, * * * professional fees, fees and emoluments” and subject to three-year prescription under C.C. Art. 3494 (1). The effort to recast these claims as personal actions subject to 10-year prescription would effectively negate R.S. 12:1502 and Art. 3494. The district court did not err in declining to apply the longer prescriptive period to these claims.

The “Partner Exceptions”

By their fourth assignment of error, the plaintiffs urge the court erred in sustaining the “partner exceptions” (filed as exceptions of “no right of action or no cause of action”) as to Counts 2, 4, 5, 7 and 8. The plaintiffs concede that the partnership is primarily liable for its own debts, but the partners are secondarily liable. La. C.C. Art. 2817; Lang v. Sproull, 45,208 (La.App. 2 Cir. 4/28/10), 36 So.3d 407. The plaintiffs conclude that given the partners’ potential virile share liability, the court should not have sustained these exceptions with prejudice.

This court observes that the claims raised by all the counts listed in this assignment of error have also been dismissed as prescribed (Counts 2, 5 |Mand 7, and part of Count 4), failing to state a cause of action (Counts 5, 7 and 8) or failing to disclose a right of action (Counts 2 and 8, and part of Count 4). Any question of secondary or virile share liability of the partners is academic and moot. The only portion of the claim that still has vitality is Querbes-Coleman’s derivative action for breach and bad-faith breach of the Operating Agreement (Count 4).

At the start of the hearing, counsel for the plaintiffs announced a number of stipulations, including that “any collection on any judgment will be against Querbes Company No. 1 Partnership before the collection of the individual -partners of Querbes Company No. 1.” Counsel for the defendants agreed that this satisfied the exception. In other words, the stipulation preserves the plaintiffs’ rights against the partners under Art. 2817. In light of the stipulation, we perceive no error in the district court’s ruling on the partner exceptions.

Conclusion

For the reasons expressed, the judgment is affirmed. All costs are to be paid by the plaintiffs.

AFFIRMED.

APPLICATION FOR REHEARING

Rehearing Denied.

Before WILLIAMS, DREW, MOORE, LOLLEY, and STONE, JJ.

      . The court did not specifically address Count 11, presumably because the claims against those entities were extinguished by prescription or failure to state a cause or right of action.

        . The plaintiffs have not contested the ruling as to Count 6.

      . The plaintiffs do not contest the ruling as to Count 6.


source: Caselaw Access Project

author: CHAISSON, J.

license: Public Domain

text:
    Shimira KENNARD, Individually and as the Natural Tutrix of the Minor, Devante Kennard v. ST. JAMES PARISH SCHOOL BOARD, Louisiana Department of Children and Family Services and Lakeitha Hamilton
    NO. 16-CA-603
    Court of Appeal of Louisiana, Fifth Circuit.
    April 12, 2017

      COUNSEL FOR PLAINTIFF/APPELLANT, SHIRMIRA KENNARD, ET AL, DaShawn Hayes
    COUNSEL FOR DEFENDANT/AP-PELLEE, ST. JAMES' PARISH SCHOOL BOARD, Andrew C. Abrams
    Panel composed of Jüde G. Gravois, Robert A. Chaisson, and Robert M. Murphy
   CHAISSON, J.

liShimira Kennard appeals from a trial court judgment that sustained. St. James Parish School Board’s exceptions of lack of procedural capacity and no right of action. For the reasons that follow, we reverse the judgment of the trial court.

PROCEDURAL HISTORY

On August 8, 2014,. Shimira Kennard filed suit against St. James Parish School Board and other defendants as a résult of an alleged altercation at LútcherHigh School involving her son, Devante -Ken-nard. Ms. Kennard filed this ■ shit both individually, on her' own' béhalf, and on behalf of Devante. On December 4,'.2014, the School Board filed an answer to the suit in which, although .it pled various affirmative defenses, it did not plead'any exceptions. Subsequently, on July 28,‘ 2015, the School Board filed a pleading titled “Exceptions of Prescription, No Right of Action and No Cause of Action with Incorporated Memorandum.” In that pleading and the accompanying memorandum, the School Board challenged the authority of Ms. Kennard to file suit on behalf of De-vante, arguing that her petition did not set forth the basis of her authority. On February 22, 2016, after a hearing on the School Board’s pleading, the trial court overruled the exception of no right of action, but sustained an exception of lack of procedural capacity and gave Ms. Kennard “... until March 11, 2016 to amend the petition to reflect authority to bring this claim on behalf of the minor, Devante Kennard.”

On March 21, 2016, the School Board filed a pleading titled “Exceptions of No Right of Action and Lack of Procedural Capacity,” in which it again challenged |2the authority of Ms. Kennard to file suit on behalf of Devante, and alleged that Ms. Kennard had failed to amend her petition within the time frame allowed by the trial court. At the hearing on these exceptions, Ms. Kennard conceded that she had not amended her petition; however, she introduced into evidence a copy of Letters of Tutorship dated April 8, 2016, showing that she had been confirmed as natural tutrix of her minor child Devante. After taking the matter under advisement in order to review the tutorship proceeding, on June 16, 2016, the trial court rendered judgment sustaining both the exception of lack of procedural capacity and the exception of no right of action and dismissed all of Ms. Kennard’s claims against the School Board with prejudice. It is from this judgment that Ms. Kennard now appeals.

DISCUSSION

We first note that Ms. Kennard’s petition indicates that she is making a claim both individually, on her own behalf, and a claim on behalf of Devante. Additionally, her petition sets forth items of damages that she has allegedly suffered which are separate and distinct from the items of damages allegedly suffered by Devante. The exceptions at issue in this appeal do not challenge the authority of Ms. Kennard to file her individual claim on her own behalf. Therefore, it was error for the trial court to sustain the exceptions as to Ms. Kennard’s individual claim and to dismiss her petition as to that claim.

The School Board does, however, by way of its pleadings, challenge the authority of Ms. Kennard to file suit on behalf of De-vante for his claim. Although lathe School Board attempts to make this challenge by way of exceptions of both lack of procedural capacity and no right of action, the appropriate exception to challenge Ms. Kennard’s authority to file suit in a representative capacity on behalf of Devante is an exception of lack of procedural capacity.

The exception of no right of action serves to question whether the plaintiff in the particular case is a member of the class of persons with a legal interest in the subject matter of the litigation. La. Capital Assistance Ctr. v. Dinvaut, 16-383 (La.App. 5 Cir. 12/7/16), 207 So.3d 1187. The essential function of the exception of no right of action is to provide a threshold device for terminating a suit brought by one with no legal interest to assert it, that is, to challenge the plaintiffs interest in the subject matter of the suit or his lack of capacity to proceed with the suit. Id.

To the contrary, the dilatory exception of lack of procedural capacity raises the issue of want of capacity of the plaintiff to institute and prosecute the action and stand in judgment and/or challenges the authority of a plaintiff who appears in a purely representative capacity. Woodard v. Upp, 13-0999 (La.App. 1 Cir. 2/18/14), 142 So.3d 14, 18. “Lack of capacity” is not synonymous with no right of action. Id. Lack of procedural capacity is a dilatory exception which tests a party’s legal capacity to bring a suit. Id.

In the case before us, Ms. Kennard has brought the claim of her son in a representative capacity as the alleged “ad-ministratrix” of Devante’s estate. The appropriate exception for the School Board to challenge Ms. Kennard’s authority to bring suit in a representative capacity on behalf of Devante is the exception of lack of procedural capacity, not an exception of no right of action. Furthermore, none of the School Board’s arguments regarding Ms. Kennard’s authority to file |4suit on behalf of Devante are pertinent to an exception of no right of action, regardless of the fact that the School Board styles them as such. It was therefore error for the trial court to sustain the exception of no right of action.

The exception of lack of procedural capacity is a dilatory exception which merely retards the progress of the action, but does not tend to defeat the action. See La. C.C.P. arts. 923 and 926(A)(6). La. C.C.P. art. 928(A) provides that the dilatory exception shall be pleaded prior to or in the answer. A dilatory exception which is not pleaded prior to or in the answer is waived. La. C.C.P. art. 926(B); See also Sarratt v. Cappaert Enterprises, 442 So.2d 783 (La. App. 5th Cir. 1983).

THe School Board filed its answer herein on December 4, 2014, but did not file exceptions to Ms. Kennard’s petition until July 28, 2015, and March 21, 2016. By failing to plead its dilatory exception of lack of procedural capacity prior to or with its answer, the School Board waived its objection to Ms. Kennard’s procedural capacity to file suit on behalf of Devante. Any objection of the School Board to the procedural capacity of Ms. Kennard to file suit on behalf of Devante having been waivdd,'it'was therefore error for the trial court to sustain the School Board’s exception of lack of procedural capacity.

CONCLUSION

■Accordingly, we reverse the trial court’s judgment, which sustained the School-Board’s exceptions of no right of action and lack of procedural capacity and dismissed Ms. Kennard’s lawsuit with prejudice. We remand this matter to the trial court for'further proceedings consistent with this opinion.

REVERSED AND REMANDED

      . A co-defendant, Lakeitha Woidtke (formerly Hamilton), previously timely filed an exception of lack of procedural capacity with her answer to Ms. Kennard's petition; however, the appellate record does not indicate that this exception was ever set for hearing or ruled upon by the trial court, and it is not the subject of this appeal.

      . The trial court did not issue written reasons for judgment and the appellate record does not contain the minute entries or a transcript of the hearing on these exceptions; however, the February 22, 2016 judgment, which is the only judgment in the appellate record from the February 11, 2016 hearing, indicates that the matters heard that day were the School Board's exceptions, with no mention of Ms. Woidtke’s exception (although her attorney was present at the hearing). It therefore appears to us that the trial court, based upon the substance of that portion of the School Board’s memorandum in which it challenged Ms. Kennard’s authority to file suit on behalf of Devante, correctly construed the School Board's exception to be one of lack of procedural capacity, rather than no right of action.

      . We note that in her petition, Ms. Kennard alleged that she was the administratrix of the estate of Devante Kennard, although she did not state under what authority she was deemed administratrix.

      . The trial court did not issue written reasons for judgment. It is not entirely clear to us whether the trial court found some deficiency in the tutorship proceeding such that the issue of Ms. Kennard’s authority to file suit on behalf of Devante was not adequately resolved, or whether the trial court dismissed Ms. Kennard’s suit because she had failed to comply with the trial court's directive to amend her petition to allege the basis of her authority to file suit on behalf of Devante.

      . The appellate record does not indicate that Ms. Kennard filed any written oppositions to the School Board’s various exceptions, nor does the appellate record indicate that she apprised the trial court of the fact that she had made individual claims against the School Board that were not implicated by the School Board’s exceptions. Although Ms. Kennard now makes this argument to our Court, it appears from the appellate record that she inexplicably failed to make such argument to the trial court.

      . Although the School Board eventually filed both an exception of lack of procedural capacity and an exception of no right of action, it argues the exceptions together without acknowledging the distinction between the two. For an excellent discussion of the distinction between the exception of no right of action and the exception of lack of procedural capacity, see Judge Landrieu’s dissent in Bourbon Invs., LLC v. New Orleans Equity, LLC, 15-1234 (La.App. 4 Cir. 12/21/16), 207 So.3d 1088 (Landrieu, J. concurring in part and dissenting in part).

      . Although Ms. Kennard raises the issue of waiver to this Court, the appellate record indicates that again, as to this issue, she inexplicably failed to make this argument to the trial court.


author: GRAVOIS, J.

text:
    Shahrzad Talebinejad BOURGEOIS v. Danny Paul BOURGEOIS, Jr.
    NO. 16-CA-676
    Court of Appeal of Louisiana, Fifth Circuit.
    April 12, 2017

      COUNSEL FOR PLAINTIFF/APPEL-LEE, SHAHRZAD TALEBINEJAD BOURGEOIS, Jacqueline F. Maloney
    COUNSEL FOR DEFENDANT/APPELLANT, DANNY PAUL BOURGEOIS, JR., Mark D. Plaisance, Harley M. Brown
    Panel composed of Jude G. Gravois, Robert M. Murphy, and Hans J. Liljeberg
   GRAVOIS, J.

_jjln this child custody matter, defendant/appellant Dr. Danny Bourgeois appeals a trial court judgment that maintained the parties’ shared custody of their minor son, A.C.B., but awarded domiciliary status to Dr. Bourgeois’s ex-wife, plaintiff/appellee Dr. Shahrzad Talebine-jad, after she had sought a modification of the parties’ prior Consent Judgment on custody. Dr. Talebinejad sought the custody modification on the basis that A.C.B. was then three and a half years old and would soon be eligible to enroll in a “pre-K 4 program,” and because of her desire to enroll him full time in a pre-kindergarten program in Metairie, Louisiana.

On appeal, Dr. Bourgeois argues that the trial court erred in finding that Dr. Talebinejad proved a material change in circumstances warranting a modification of the previous custody judgment because as a four-year-old, A.C.B. was not of “school age” as per La. R.S. 17:221 and 17:222. He further argues that it is not in A.C.B,’s best interest for A.C.B. to have to travel more than 90 miles twice per day to and from school in Metairie, Louisiana, during the weeks that Dr. Bourgeois exercises physical custody of A.C.B. at his home in Zachary, Louisiana. Next, he argues that the trial court erred in granting Dr. Tale-binejad domiciliary status when she failed to rebut the presumption against custody found in La. R.S. 9:364, specifically that Dr. Talebinejad’s history of violence and abuse towards him is sufficient to deny her domiciliary status. He also argues that the trial court erred in denying his request to admit into evidence an alleged text message between the parties as evidence of her abusive behavior. Finally, he argues that if a modification of the Consent Judgment on custody is warranted, he should be named as domiciliary parent.

|2For the following reasons, finding no merit to Dr. Bourgeois’s assignments of error, we affirm the trial court’s judgment under review.

FACTS AND PROCEDURAL HISTORY

The record reflects that the parties, Dr. Bourgeois and Dr. Talebinejad, met in 2008 in Metairie, Louisiana, when Dr. Bourgeois was a surgical resident at Oehs-ner Hospital in Metairie and Dr. Talebine-jad was a medical student. The parties had a stormy and troubled relationship, and both agreed that the relationship would have ended had Dr. Talebinejad not gotten pregnant in 2011. Prior to being married in October of 2011, the parties resided in Jefferson Parish. A.C.B, their son, was born on April 11, 2012.

After Dr. Bourgeois completed his surgical residency in 2013, he obtained a job as a surgeon at Lane Memorial Hospital in East Baton Rouge Parish. Meanwhile, Dr. Talebinejad entered a surgical residency at Ochsner Hospital in Metairie. In an effort to balance the needs of their careers and their child, in 2013 the parties purchased a home in LaPlace, Louisiana, which was approximately one-third closer to Dr. Bourgeois’s job in Zachary. However, the parties’ relationship continued to be troubled. Dr. Bourgeois was unfaithful several times, which led to numerous fights between the couple, some where Dr. Talebi-nejad lost her temper and admittedly caused some minor property damage at their home, The parties decided to separate and divorce. In June of 2014, Dr. Talebinejad moved back to Jefferson Parish.

Dr. Bourgeois filed for divorce in St. John the Baptist Parish (40th Judicial District Court) on July 7, 2014. On August 21, 2014, the parties entered into a Consent Judgment in the divorce proceeding regarding child custody, with the parents being awarded “joint/shared” custody of A.C.B., with alternating weeks of ^physical custody, and co-domiciliary status. Dr. Bourgeois continued living in LaPlace until April of 2015, when he moved to Zachary, where he is from, to live in his grandmother’s house and to be close to his job and his extended family. The parties were divorced in October of 2015 by judgment of the 40th Judicial District Court. They continued with shared custody under the Consent Judgment, with A.C.B. spending one week at a time in the physical custody of each parent respectively. When with his father, A.C.B. attended Bright Beginnings Day Care, which is close to Dr. Bourgeois’s home in Zachary, where A.C.B. had been enrolled since 2013. When with his mother in Metairie, A.C.B. was cared for by a nanny when his mother worked in her residency.

When A.C.B. approached the age of four and became eligible to enroll in pre-kinder-garten, Dr. Talebinejad sought to enroll him in the program at Metairie Academy, a well-regarded public magnet elementary school close to her home. A.C.B. was accepted into the program, but Dr. Bourgeois disagreed with A.C.B.’s enrollment at Metairie Academy. Initially Dr. Bourgeois felt that their son could remain at day care in Zachary and with the nanny in Metairie and not start school until kindergarten. He later proposed that A.C.B. could attend Metairie Academy every other week, when he was with his mother, or could attend another school in Zachary on the weeks when A.C.B. was with Dr. Bourgeois.

After being unable to resolve the issue of their son’s schooling and custody, on November 12, 2Ó15 Dr. Talebinejad filed a Rule to Show Cause why custody should not be modified, arguing that a modification was warranted given that A.C.B. was then three and a half years old and would soon be eligible to enroll in a U“pre-K 4 program” and that it was in his best interests to attend school full time. She sought domiciliary custody, primary physical custody, and permission to enroll A.C.B. in pre-kindergarten for the 2016-2017 school year in Jefferson Parish, particularly at Metairie Academy.

On February 1, 2016, Dr. Bourgeois filed a reconventional demand, alleging a material change in circumstances since the custody decrees were rendered, seeking to be named domiciliary parent, and seeking an order for permission to enroll A.C.B. in the Zachary Community School District “when he reaches the age of preschool enrollment.” On February 2, 2016, the parties stipulated to the appointment of Dr. Karen Van Beyer to conduct a custody evaluation of the parties and A.C.B. The trial court conducted a custody hearing on July 13, 2016, in which the parties and several witnesses testified, including Dr. Van Beyer, whose report was entered into evidence. The trial court took the matter under advisement and rendered a judgment in open court on July 21, 2016, with the parties present, granting Dr. Talebine-jad’s request to be named as domiciliary parent and giving permission for A.C.B. to be enrolled full time in pre-kindergarten classes at Metairie Academy, but maintaining the parties’ shared week-to-week custody arrangement. A written judgment and reasons for judgment were also rendered that same day. This timely appeal followed.

STANDARD OF REVIEW

As noted by the court in Hanks v. Hanks, 13-1442 (La.App. 4 Cir. 4/16/14), 140 So.3d 208, 214-215 (internal citations omitted):

Uln child custody cases, the following principles are well-settled:
• Appellate courts will not disturb a trial court’s custody award absent a manifest abuse of discretion.
• In most child custody casés, the trial court’s rulings are based heavily on its factual findings. “[A] court of appeal may not set aside a trial court’s or a jury’s finding of fact in the absence of ‘manifest error’ or unless it is ‘clearly wrong.’ ”
• “[E]ach child custody case must be viewed in light of its own particular set of facts and circumstances, with the paramount goal of reaching a decision that is in the best interest of the child.”
• In determining the best interest of the child, “[e]ach case must be viewed in light of the child’s age, the situation of the parents, and any other factor relevant to the particular case,”
• To aid courts in making this factual determination, La. C.C. art. 134 enumerates twelve factors for the court to consider. ...
• The best interest of the child standard—codified in La. C.C. arts. 131 and 134—is “a fact-intensive inquiry requiring the weighing and balancing of factors favoring or opposing custody in the competing parties on the basis of the evidence presented in each case.”
•' .“Because the trial judge is in the , best position to ascertain the best interest of the child based on the particular circumstances of the particular case, the trial court’s custody determination is entitled to great weight and will not be disturbed by an appellate court .absent a clear showing of abuse of discretion.”

When a party seeks to change custody entered pursuant to a consent judgment or stipulation of the parties, the party seeking modification must prove “(1) that there has been a material change of circumstances since the original custody decree was entered, and- (2) that the proposed modification is in the best interest of the child.” Evans v. Lungrin, 97-0541 (La. 2/06/98), 708 So.2d 731, 738 (internal citation omitted). This is a lesser burden of proof than required when a party seeks modification of a “considered decree.” Id.

LLa. C.C. art. 134 provides that the court shall consider all relevant factors in determining the best interest of the child, specifically including:

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

These factors have been construed to be nonexclusive, and the trial court has the discretion to determine the relative amount of weight to be given each factor. The court is not required to analyze mechanically all of the dozen factors; rather the court should balance and weigh the factors in view of the evidence presented. Hanks v. Hanks, 140 So.3d at 215 (citing Palazzolo v. Mire, 08-0075 (La.App. 4 Cir. 1/7/09), 10 So.3d 748, 769-70).

|7In its extensive written reasons for judgment, the trial court went through an assessment of each of the Article 134 factors in detail in light of the evidence presented, In doing so, the court found that most of the factors were either not relevant to the present proceeding or weighed equally in favor of both parties. The court found that A.C.B. was equally attached to both parents and it would not be in his best interest to alter the shared custody arrangement. Relevant to the present issue of A.C.B.’s education, however, the trial court found on balance several factors that weighed in favor of granting Dr. Tale-binejad domiciliary status. Specifically, regarding factor two which partially concerns the child’s education, the court had some reservations about Dr. Bourgeois’s “casual attitude” towards deferring A.C.B.’s schooling for an additional year (or until kindergarten), when all indications showed that A.C.B. was very bright and sociable and would benefit from a formal education environment.

The trial court found that factor ten, the willingness and ability to facilitate and encourage a close and continuing relationship between the child and the other party, weighed heavily in favor of Dr. Talebine-jad. Herein, the court noted that each party was reluctant to alter their schedules to fit the other, and that both parties needed to improve the way they communicate. However, the court found that this factor weighed in favor of Dr. Talebinejad, specifically as a result of Dr. Bourgeois’s repeated and continued failure to inform Dr. Talebinejad of important occurrences in A.C.B.’s life, including his weekly attendance at church, his receipt of dental care in the Zachary area, discontinuance by Dr. Bourgeois of A.C.B’s treatment for exercise-induced asthma, and his participation in recreational T-ball. The court found no justification for Dr. Bourgeois’s failure to communicate a basic level of information about A.C.B.’s daily activities to Dr. Tale-binejad, and felt that such behavior reflected an unwillingness to co-parent or to foster a positive relationship between A.C.B. and his mother.

|sThe trial court also found that factor eleven, the distance between the respective residences of the parties, weighed heavily in the court’s decision regarding domiciliary status. The court dismissed as “untenable” Dr. Bourgeois’s suggestion that Dr. Talebinejad forego a year of further education in a surgery fellowship and move to the Zachary area as soon as her residency was completed. The court also noted that Dr. Talebinejad’s educational requirements mandated that she remain in the New Orleans area for the next one to two years and that she had expressed the willingness to be “generously flexible” about her location thereafter, whereas Dr. Bourgeois had been unwilling to be equally flexible. The court further noted that Dr. Bourgeois had “significantly” much more control over his work schedule than Dr. Talebinejad. The court also noted that for two years Dr. Bourgeois was able to accommodate his work schedule in Zachary while living in LaPlace. The court found that by electing to move to Zachary, Dr. Bourgeois chose proximity to work over proximity to his son, and further, that by choosing to move to Zachary, he more than tripled the travel time between himself and his son (ie., between his home in Zachary and Dr. Ta-lebinejad’s home in Metairie). The court also found that based on the “overwhelming evidence” of Dr. Bourgeois’s failure to communicate with Dr. Talebinejad, it found “not credible” his testimony that Dr. Talebinejad had consented to his move to Zachary on behalf of A.G.B.

Based on the foregoing, the trial court awarded the parties continued shared custody with domiciliary status to Dr. Talebi-nejad, and allowed A.C.B. to be enrolled full time in the pre-kindergarten program at Metairie Academy.

[^ASSIGNMENT OF ERROR NO. ONE

“School age” of minor child

Dr. Bourgeois argues first that the trial court erred in determining that his son, at four years old, was of “school age,” citing La. R.S. 17:221(A)(1), which provides that school attendance becomes mandatory in Louisiana at age seven. Alternatively, he argues that state law permits a child to enroll in kindergarten at age five, citing La. R.S. 17:151.3. He further argues that since the trial court’s judgment is fashioned around the “error of law” that his son is of “school age,” this Court should not review the judgment under the “clear abuse of discretion” standard, but rather the less strict manifest error standard, or conduct a de novo review, and that the judgment must be reversed.

Upon review, we find no merit to Dr. Bourgeois’s assertion that the trial court committed legal error in finding, at age four, that A.C.B. was legally “school age.” The judgment found that it was in A.C.B.’s best interest to attend pre-kinder-garten, and thus that Dr. Talebinejad showed a material change of circumstances warranting a modification of custody. The judgment did not hold, nor did the reasons for judgment find, that a four-year-old child is of “school age” under Louisiana law. The statutes Dr. Bourgeois cites in Title 17 of the Revised Statutes merely state at what age school attendance is mandatory or permissive in the State of Louisiana. These statutes do not determine at what age it is in any child’s best interest to attend school. This Court has found no instance in which statutes in Title 17 have been invoked in a custody matter to determine at which age it is in a particular child’s best interest to attend school, nor have those statutes been used in a custody matter to limit a child’s educational opportunities. Further, the statutes in Title 17 do not support Dr. Bourgeois’s claim that it is not in A.C,B.’s best interest to attend school; these statutes provide for educational | ^opportunities for children much younger than seven. Accordingly, Dr. Bourgeois’s reliance on Title 17 is unavailing. We thus find no legal error and decline to conduct a de novo review or review the matter, under the manifest error standard, rather than for a clear abuse of discretion standard.

In brief to this Court, as well as in the trial court in his reconventional demand, Dr. Bourgeois argued that A.C.B. should remain in his current setting until he was five, which was day care/nanny care, or alternatively should attend pre-kindergar-ten in Zachary rather than in Metairie, and stay with the nanny while in Metairie. This position undercuts Dr. Bourgeois’s assertion in his brief that it is not in his child’s, best interest to attend school or that he is not of “school age.” The record clearly reflects that both parties believe that A.C.B. should attend pre-kindergar-ten; the only dispute was where he should attend and perhaps how often (full time or every other week).

Upon review, we find that the law and the evidence support the trial court’s finding that it was in the best interest of A.C.B. to attend a pre-kindergarten program, and that this is a change in his circumstances warranting a modification of custody. The evidence is compelling that A.C.B. is of sufficient age, knowledge, social skills, and ability to attend a prekindergarten program. The parties agreed to the appointment of Dr. Van Beyer, a licensed social worker and qualified expert in child development, family therapy, and custody evaluations, to conduct an evaluation in this case. Dr. Van Beyer rendered a written report recommending that A.C.B. be allowed to enroll in Metairie Academy’s pre-kindergarten full time. She testified that A.C.B. was an exceptionally bright and sociable child who would benefit from attending a pre-kindergarten program. 1 nShe explained that in the present day, pre-kindergarten was no longer a luxury, but had become “an expectation” in a child’s educational program..She testified that she was familiar with the quality reputation of the pre-kindergarten program at Metairie Academy. She was unable to compare it to the pre-kindergarten program in Zachary that Dr. Bourgeois preferred, because he did not submit any information about it for her to consider in her evaluation. She felt that it was in A.C.B.’s best interest to attend Metairie Academy full time rather than on alternate weeks, because the program involved “sequential” teaching and learning, and A.C.B. would be at a disadvantage if he missed material every other week. Dr. Van Beyer testified that attending one school full time would provide stability for A.C.B. Dr. Van Beyer also testified that it would not ultimately matter to A.C.B.’s educational success if A.C.B. were to forego pre-K and to stay in his current arrangement, but that she felt because he was so bright, he would in fact benefit from attending pre-kindergarten at Metairie Academy.

In summary, under the particular facts of this case, we find no legal error in the trial court’s determination that it was in the best interest of A.C.B. to attend prekindergarten, and that there has thus been a material change in circumstances warranting a modification in custody (naming Dr. Talebinejad as domiciliary parent and allowing A.C.B. to be enrolled full time at Metairie Academy). This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. TWO

Travel distance for minor child to and from school

Next, Dr. Bourgeois argues that it is not in the best interest of the child to have to travel more than 90 miles twice per day to school during the weeks that Dr. Bourgeois exercises custody of A.C.B. at his home in Zachary. However, the | iacustody judgment in question contained no such requirement. The trial court’s judgment found that the evidence showed that Dr. Bourgeois had much more control over his work schedule than Dr. Talebinejad has at this point in her career. The court also noted that Dr. Bourgeois had commuted to work in Zachary for over a year from the parties’ marital home in LaPlace, and that he had unilaterally decided- to move to Zachary, thus approximately tripling the distance between Dr. Talebinejad’s home in Metairie and his home in Zachary.

Dr. Bourgeois also asserts in this assignment of error there is no empirical or evidentiary support for Dr. Talebinejad’s claim that A.C.B. should attend school full time. However, we find the evidence clearly supports the contrary. The report and the expert testimony of Dr. Van Beyer clearly stated that it would not be in A.C.B.’s best interest to attend a sequential learning program, pre-kindergarten, on an alternating week basis. This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. THREE

“Violent behavior” presumption against custody

In this assignment of error, Dr. Bourgeois argues that the trial court erred in awarding Dr. Talebinejad domiciliary status when she failed to rebut the presumption found in La. R.S. 9:364 against awarding sole or joint custody to a “parent who has a history of perpetrating family violence.” Specifically, he argues that Dr. Talebinejad’s violent behavior towards him is sufficient to deny her domiciliary status.

Initially, we note that La. R.S. 9:364, entitled “Child custody; visitation,” is found in the Post Separation Family Violence Relief Act, and that neither party sought its application in the proceedings below. The record shows, instead, that in August of 2014, the parties entered into a Consent Judgment of shared custody that hiiPr. Bourgeois did not seek to modify on any basis until Dr. Talebinejad filed her motion seeking domiciliary status.

In its written reasons for judgment, the trial court specifically found the following in analyzing factor seven, the moral fitness of each parent as it affects the welfare of the child, to-wit:

Again, this factor does not weigh heavily in favor of one party over the other. Bourgeois attempted several times, and at great length, to show that Talebinejad had an anger management problem. All he succeeded in showing is that Talebinejad became extremely upset when confronted with his infidelity. While such bursts of anger are not appropriate, they are certainly unsurprising given the circumstances. Regardless, it was well established that these incidents were isolated, occurred prior to the August 2014 consent judgment, were related to the break-up of the marriage, and in no way impacted Talebinejad’s fitness as a mother or her relationship with [A.C.B.].

Upon review, we find no merit to Dr. Bourgeois’s claim that Dr. Talebinejad is unfit for custody because of her temper. The record is clear that the instances of Dr. Talebinejad’s anger and acting out in a violent manner stemmed from her being confronted with numerous instances of Dr. Bourgeois’s infidelity. The record is equally clear that these “violent” instances were confined to a time frame prior to the parties’ separation in June of 2014, and that no evidence was presented of instances of violence occurring after their separation. Dr. Talebinejad testified frankly that she did, in fact, throw things and damage some property (a picture frame, a wall) during arguments with Dr. Bourgeois before the parties separated, and that she might have threatened self-harm as well. She also claimed that he was also similarly violent during their arguments. After interviewing the parties, Dr. Van Beyer was aware of these instances and considered them in the context of the parties’ marital relationship, as well as within her evaluation of child custody. She opined that Dr. Talebinejad had no pathology or “diagnosis” as a violent person, that her behaviors, while inappropriate, were confined to the parties’ deteriorating marital relationship, and that she was fit to have custody of her child. Noteworthy, |uDr. Bourgeois testified at the hearing that he believes Dr. Talebine-jad is a “decent mother,” a “good mother,” and that she “loves” A.C.B. He also stated that he did “not have a problem at all with her having my child 50 percent of the time.”

Perhaps the most significant fact against Dr. Bourgeois’s position in this assignment of error is that in August of 2014, shortly after the parties’ separation and more recent in time to the instances of Dr. Talebi-nejad’s angry behavior, the parties entered into a shared custody Consent Judgment. It is thus specious for Dr. Bourgeois to be concerned with Dr. Talebinejad’s past temper-induced behavior now, but to have been unconcerned with these same behaviors in 2014 when the parties entered into the shared custody Consent Judgment.

In conclusion, the evidence in the record does not support Dr. Bourgeois’s assertion in this proceeding that Dr. Talebinejad has a violent or abusive nature, or that she should not exercise shared custody or have domiciliary status on this basis. This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. FOUR

Denial of introduction of evidence

In this assignment of error, Dr. Bourgeois contends that the trial court erred at the hearing in this matter in denying his request to admit into evidence a printed representation of a text message ostensibly sent by Dr. Talebinejad to him around August of 2013 for the purpose of showing that she was violent and abusive. The trial court denied the text message’s admission into evidence on the grounds that the printout of the text message was not properly authenticated under La. C.E. art. 901.

11fiDr. Bourgeois proffered into evidence a printout of a purported phone text message allegedly sent to him by Dr. Talebine-jad wherein she threatened him and others with physical harm. He argues that his testimony that he received the text message from Dr. Talebinejad and that the message contained the contact label “Wi-fey” is sufficient under Article 901 to authenticate the text.

Upon review, we find no error in the trial court’s ruling that the text message in question was not properly authenticated under La. C.E. art. 901. The text printout itself contains no objective evidence of the date it was allegedly sent by Dr. Talebine-jad to Dr. Bourgeois. The sender’s telephone number is not identified on the printout, but only the contact label “Wi-fey.” We find, as did the trial court, that Dr. Bourgeois failed to present sufficient evidence to support a finding that the “text” in question was what it purported to be. This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. FIVE

Domiciliary custody should have been awarded to Dr. Bouryeois

In his last assignment of error, Dr. Bourgeois argues that if a modification of custody is warranted, he should be designated as domiciliary parent instead of Dr. Talebinejad. In brief, he argues that he has a full support system in place consisting of day care and his mother’s help. He contrasts that with Dr. Talebinejad’s longer and more demanding work hours and that her mother would be A.C.B.’s primary caregiver if domiciliary custody were granted to her. He also argues that the ruling leaves A.C.B. “primarily” with a parent who has “violent tendencies,” and that the trial court erred in granting Dr. Talebinejad domiciliary custody merely because she believes the child should be in school full time.

| ifiThis Court notes that the judgment at issue awards “joint/shared” custody, but grants domiciliary status to Dr. Talebine-jad. It is clear that the judgment maintains each parent’s 50/50 shared time with A.C.B. Therefore, Dr. Bourgeois’s assertion that the modification leaves A.C.B. “primarily” with Dr. Talebinejad is incorrect. The issue of Dr. Talebinejad “violent tendencies” has been addressed infra and has been found to have no merit. Also, we find Dr. Bourgeois’s comparison of the parties’ respective child care support systems to be a factor that weighs equally in favor of both, as did the trial court. Both parties work full time in a relatively demanding field, surgery, and both have outside help (“support systems”) that are similar. Dr. Bourgeois uses day care and his mother to care for A.C.B. when he can’t; Dr. Talebinejad relied on a nanny before A.C.B. entered school and would rely on A.C.B.’s school and her mother in the event the ruling under review is upheld. Dr. Talebinejad is no less the child’s “primary caretaker” than is Dr. Bourgeois. This assignment of error is without merit.

This Court feels compelled to point out that “domiciliary” status, in the context of this joint/shared custody judgment, does not mean that the domiciliary parent has more custody time with the child than the non-domiciliary parent. Rather, “domiciliary” status gives that particular parent decision making authority unless an implementation order provides otherwise, subject to review of the trial court upon motion of the other parent. La. R.S. 9:335(B)(3).

CONCLUSION

For the foregoing reasons, the trial court’s judgment under review is affirmed.

AFFIRMED

      . To ensure the confidentiality of the minor whose interests are the subject matter of this appeal, the minor’s initials have been used in place of the minor's name in this opinion to protect the minor’s identity. Uniform Rules-Courts of Appeal, Rule 5-2.

      . This custody arrangement was kept in place by another judgment rendered in the divorce proceeding on October 24, 2014 (which was signed on December 30, 2014).

      . The Consent Judgment also provided that each parent had the right to exercise a midweek evening of visitation, though the record reflects that this tended to be problematic for each to exercise after Dr. Bourgeois moved to Zachary, given the amount of hours each was working and the approximately 92-mile distance between the two homes after Dr. Bourgeois moved from LaPlace to Zachary, The evidence suggests that the mid-week visitation was not regularly exercised by either party.

      .Dr. Talebinejad’s petition was styled “Petition for Recognition of Intrastate Judgment of Child Custody; Rule to Show Cause Why There Should Not Be a Modification of Custody; Petition for Registration and Confirmation of Support Order Pursuant to Article 2786; Rule to Show Cause Why Danny Paul Bourgeois, Jr. Should Not Be Held in Contempt." Previous to this appeal, Dr. Bourgeois challenged the transfer of the matter to Jefferson Parish. The trial court ruled that venue was proper in Jefferson Parish, and further declined to grant Dr. Bourgeois’s request for a forum non conveniens transfer to East Baton Rouge Parish. Upon review, this Court denied Dr. Bourgeois’s writ application, upholding the trial court’s rulings. See Bourgeois v. Bourgeois, 16-54 (La. App. 5 Cir. 2/1/16) (unpublished writ decision).

      . The Zachary Community School District is a public school district. The reconventional demand did not define “when he reaches the age of preschool enrollment.”

      , The written judgment also provided for additional provisions of custody, none of which are involved in this appeal.

      . "A considered decree is an award of permanent custody in which the trial court receives evidence of parental fitness to exercise care, custody, and control of children. When a trial court has made a considered decree of permanent custody, 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 a modiñcation of the custody decree,' or of proving by ‘clear and convincing evidence that the harm likely to be caused by the change of environment is substantially outweighed by its advantages to the child.’ ” Evans v. Lungrin, 708 So.2d at 738 (internal citations omitted) (emphasis in original). In the present case, it is undisputed that the custody judgment in question was not a "considered decree.” -

      . Dr. Talebinejad testified that when her residency was completed in mid-2017, she desired to apply for a fellowship of 1-2 years for further training in trauma surgery. She states in brief to this Court that she is now participating in this fellowship.

      . For instance, La. R.S. 17:151.3 sets forth the ages that a child in Louisiana may attend a kindergarten program, and La. R.S. 17:407.21, et seq., known as the "Louisiana Early thildhood Education Act,” provides educational opportunities for children as young as four.

      . Stacey Betz, the owner of Bright Beginnings Day Care, a "highly rated developmentally appropriate educational facility” where A.C.B. has attended since he was approximately one and a half years old during his weeks with his father, also testified that A.C.B. was a "very bright young man,”

      .In his reconventional demand, Dr. Bourgeois supported A.C.B.’s enrollment in the Zachary Community School District, which is public. At the time of the hearing on this matter, however, Dr. Bourgeois presented evidence that he sought A.C.B.'s enrollment in Central Private Academy, a private school near his home.

      . La. R.S. 9:364(A) provides, in pertinent part, that "[t]here is created a presumption that no parent who has a history of peipetrat-ing family violence shall be awarded sole or joint custody of children.”

      . La. C.E. art 901(A) provides that "[t]he requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.”
      La. C.E. art 901(B) provides ten examples of authentication or identification conforming with the requirements of this Article, which examples specifically are “[b]y way of illustration only, and not by way of limitation.”

      . Counsel for Dr. Bourgeois stated that he hand wrote the date “8/31/13” on the document in question. Dr. Bourgeois testified that he was only “pretty sure” that was the date he received it.

      . We further note, as did Dr. Talebinejad in brief, that even if the text message in question had been admitted into evidence, it bore no relevance in the instant proceeding as to whether a material change in circumstances occurred warranting a modification in custody, as the text was purportedly sent a full year before the parties entered into the August 21, 2014 Consent Judgment granting shared custody.

      . At the hearing on this matter, however, Dr. Bourgeois testified that he did not have a problem with Dr. Talebinejad having shared custody.

      . La. R.S. 9:335(B)(3) provides: "The domiciliary parent shall have authority to make all decisions affecting the child unless an implementation order provides otherwise. All major decisions made by the domiciliary parent concerning the child shall be subject to review by the court upon motion of the other parent. It shall be presumed that all major decisions made by the domiciliary parent are in the best interest of the child.”