author: KEATY, Judge.

text:
    STATE of Louisiana Board of Ethics v. Scott A. FONTENOT, et al.
    No. 15-1170.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 21, 2015.
    Jacque B. Pucheu, Jr., Pucheu, Pucheu & Robinson, Eunice, LA, for Defendant/Appellee, Scott A. Fontenot.

      Vivian H. Williams, Michael D. Dupree, Suzanne Quinlan Mooney, Kathleen M. Allen, Baton Rouge, LA, for Plaintiff/Appellant, Louisiana Board of Ethics.
    Court composed of SYLVIA R. COOKS, PHYLLIS M. KEATY, and JOHN E. CONERY Judges.
   KEATY, Judge.

_JjThe appellant, the Louisiana Board of Ethics (hereinafter the BOE), has perfected this appeal from the ruling of the tidal court rejecting the BOE’s objection to the candidacy of the appellee, Scott A. Fonte-not, for the office of Mayor for the City of Eunice. For the reasons given below, we affirm the trial court’s ruling.

Mr. Fontenot was first elected to the office of Alderman, Ward 4, for the City of Eunice on October 2, 2010, and was commissioned for that office on January 1, 2011. He was re-elected to this position on November 4, 2014, and again was commissioned on January 1,2015.

On October 13, 2015, a meeting was held by the Board of Aldermen for the City of Eunice (hereinafter the Board). The trial court made the following factual findings. “On October 13, 2015 [Mr. Fontenot] was appointed by the Board of Alderman as Interim Mayor, [Mr. Fontenot] resigned his Alderman seat on October 13, 2015 and mailed his notice of resignation on October 14, 2015.' It was received by the Secretary of State on October 21, 2015. [Mr. Fonte-not] was commissioned on October 13,2015 and took his oath of office on November 10, 2015.”

The BOE does not challenge the following underlying facts. On October 14, 2015, Mr. Fontenot mailed his notarized notice of resignation from his seat on the Board to the Louisiana Secretary of State’s Office. The resignation notice was filed by that office on October 21, 2015, After Mr. Fontenot was administered the oath of office to serve as Interim Mayor on November 10, 2015, he submitted his Notice of Candidacy to the Clerk of Court’s Office for St. Landry Parish during the qualification period to run for the office of Mayor for the City of Eunice.

[gOn December 11, 2015, the BOE filed its Objection to the Candidacy of Mayor, City of Eunice, Parishes of Acadia and St. Landry Filed on Behalf of the Louisiana Board of Ethics. The trial on the merits of the BOE’s Objection was heard by the trial court on December 14, 2015. Mr. Fontenot moved for the trial court to order the involuntary dismissal of the BOE’s action. The trial court denied Mr. Fonte-not’s motion. Following the submission of evidence and testimony, for oral reasons given, the trial court orally rendered judgment denying the Objection. The trial court signed the written judgment denying the Objection and dismissing the action with prejudice at 2:58 p.m. on December 14, 2015. The BOE filed its motion and order for appeal in the trial court at 10:37 a.m. on December 15, 2015. This court lodged the record in this appeal on December 17, 2015.

The BOE filed its brief in this court on December 17, 2015. Mr. Fontenot filed his brief and his answer to the appeal in this court on December 18, 2015. On this same date, the BOE filed a brief in opposition to the answer to the appeal.

THE ANSWER TO THE APPEAL

At the outset, this court must consider the answer to the appeal filed on behalf of Mr. Fontenot. Mr. Fontenot contends that since the BOE failed to introduce any evidence as to the population of St. Landry Parish, the BOE has failed to show that Mr. Fontenot does not qualify for the exception found in La.R.S. 42:1113(A) which exempts that provision from applying to public servants in parishes with less than 10,000 in population. The BOE opposes the answer first by arguing that the answer was not timely filed. Alternatively, the BOE submits that this court can take judicial notice that the federal decennial census gives the population for St. Landry Parish as 83,384.

|sWe find no provision in Title 18 which sets a time period for the filing of the answer in a candidacy challenge. See La.R.S. 18:1409. However, we pretermit a discussion as to the BOE’s argument regarding timeliness and instead find that Mr. Fontenot’s answer lacks merit. This court has taken judicial notice of population statistics when necessary. See Lafayette v. Comp Time for Cert. Firemen, 525 So.2d 181 (La.App. 3 Cir.1988). See also State v. Temple, 00-2183 (La.App. 4 Cir. 5/16/01), 789 So.2d 639. As noted by the BOE, the United States Census Bureau has the population of St. Landry Parish as exceeding 10,000. Therefore, pursuant to La.Code Evid. art. 201, We take judicial notice of the fact that the population of St. Landry Parish exceeds 10,000 people, and, accordingly, we deny the answer to the appeal.

STANDARD OF REVIEW

The interpretation of statutes is a question of law which is reviewed by the appellate courts under the de novo standard of review. Silver Dollar Liquor v. Red River Parish, 10-2776 (La.9/7/11), 74 So.3d 641. Findings of fact by the trial court are reviewed under the manifest error or clearly wrong standard of review. Johnson v. Augustine, 06-1690 (La.App. 1 Cir. 8/29/06), 943 So.2d 466, writ denied, 06-2189 (La.9/1/06), 936 So.2d 820. The Third Circuit recently compared these two standards in Alexander v. Menard, 15-910 (La.App. 3 Cir. 9/28/15), 215 So.3d 766 (noting that the legal question of whether court costs are included in a statutory definition of fees is reviewed de novo, whereas the factual question of whether the candidate in question paid those court costs is reviewed for manifest error).

In Landiak v. Richmond, 05-758, pp. 6-7 (La.3/24/05), 899 So.2d 535, 541, the court stated, .“[bjecause election laws must be interpreted to give the electorate|4the widest possible choice of candidates, a person objecting to candidacy bears the burden of proving that the candidate is disqualified.” Further, the court noted, “a court determining whether the person objecting to candidacy has carried his burden must liberally construe the laws governing the conduct of elections ‘so as to promote rather than defeat candidacy’” and “[a]ny doubt concerning the qualifications of a candidate should be resolved in favor of allowing the candidate to run for public office.” Id. (citations omitted).

LAW AND ARGUMENT

The BOE asserts that the pertinent provisions of the Louisiana Election Code and the Louisiana Code of Ethics set" up a dichotomy in cases like the instant one, in which, in one scenario, the former member of the Board of Aldermen would be permitted to qualify in the next election for the office of Mayor and, in another scenario, the former member of the Board of Aldermen would prohibited from qualifying in the next election for the office of Mayor. The BOE contends that the facts of the instant case fall under the latter scenario.

The BOE’s position in this case is that Mr. Fontenot could accept the Board’s appointment of him as Interim Mayor even though his notice of resignation from his Alderman’s seat was not filed in the Secretary of State’s Office at the time of his appointment. However, since he accepted the appointment prior to his notice of resignation being filed in the Secretary of State’s Office, he is prohibited from qualifying to run for the office of Mayor.

We find that the determination of the instant case turns on the application of two provisions of law, La.R.S. 42:1113(A)(1) and La.R.S. 42:1121(G). The former provision provides, in pertinent part:

| B(A)(1)(a) No public servant, excluding any legislator and any appointed member of any board or commission and any member of a governing authority of a parish with a population of ten thousand or less, or member of such a public servant’s immediate family, or legal entity in which he has a controlling interest shall bid on or enter into any contract, subcontract, or other transaction that is under the supervision or jurisdiction of the agency of such public servant.
(b) This Paragraph does not prohibit a municipal or parish governing authority from appointing one of its members:
(i) To fill a vacancy in accordance with the Louisiana Election Code. No person so appointed, except as provided in R.S. 42:1121(G), shall be eligible to or shall qualify in the next election as a candidate for the office to which he is appointed.

Louisiana Revised Statutes 42:1121(G) states, “Nothing in this Section shall prohibit a former member of a municipal governing authority from being appointed to fill a vacancy in the office of mayor regardless of the amount of time that has elapsed since the termination of the former member’s service as a member of the municipal governing authority.” (Emphasis added.)

In its brief filed in this court, the BOE poses the following question: “Did Scott Fontenot resign from the office of Aider-man, Ward 4, City of Eunice prior to being appointed by the Eunice Board of Aider-men to fill a vacancy in the office of Mayor of Eunice?” (Emphasis added.) We find that the BOE has posed the wrong question. As the above-quoted highlighted portions of La.R.S. 42:1121(G) state, the question is when did Mr. Fontenot terminate his service on the Board, as the statute does not use the word “resign.” We find that the BOE’s interpretation of this statute leads to absurd consequences and violates the obvious intent of the statute. La.Civ.Code art. 9.

Our interpretation of the meaning of La.R.S. 42:1121(G) is bolstered by the fact that this provision states that the time period from the termination of the member’s service until the time that he or she is appointed to fill the vacancy in the | ^office of mayor is irrelevant. Under the interpretation articulated by the BOE, there would necessarily be a time break between the resignation of a member since the resignation is not effective until filed by the Secretary of State’s Office and that member’s appointment as Interim Mayor. We find that the BOE’s interpretation alters the clear intent of-the legislature in providing that this time period, however short or long, is irrelevant.

We find no manifest error in the trial court’s finding of fact that Mr. Fontenot ceased performing any duties as an aider-man at the meeting held on October 13, 2015. Thus, as found by the trial court, we agree that Mr. Fontenot terminated his service as an alderman on October 13, 2015, when he orally resigned from the Board and ceased performing the duties associated with a member of the Board. Further, the Secretary of State’s Office filed his Notice of Resignation on October 21, 2015, well in advance of when, as found by the trial court, Mr. Fontenot was administered the oath of office and assumed the duties of Interim Mayor on November 10,2015. Thus, we find that the trial court properly denied the Objection filed by the BOE, and we affirm the trial court’s decision.

AFFIRMED.


source: Caselaw Access Project

author: SAUNDERS, Judge. Saunders, J.,

license: Public Domain

text:
    STATE of Louisiana Board of Ethics v. Maureen Robbins SAUNDERS, and the Hon. Clyde R. Webber, Jr., Clerk of Court for Concordia Parish.
    No. 15-1171.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 21, 2015.
    Kathleen M. Allen, Michael D. Dupree, Tracy M. Barker, Suzanne Mooney, Brett Robinson, Vivian H. Williams, Baton Rouge, LA, for Plaintiff/Appellant: State of Louisiana Board of Ethics.
    Maureen Robbins Saunders, In Proper Person, Vidalia, LA, Defendant/Appellee: Maureen Robbins Saunders.
    Court composed of JOHN D. SAUNDERS, MARC T. AMY, and ELIZABETH A. PICKETT, Judges.
   SAUNDERS, Judge.

_JjThe State of Louisiana Board of Ethics (the BOE) appeals the amended judgment of the trial court which qualified Maureen Robbins Saunders (Ms. Saunders) as a candidate for the Office of Alderman, District 3, City of Vidalia, Parish of Concordia (the Office of Alderman), conditioned upon her payment of all outstanding late fees, fines, and penalties. For the following reasons, we reverse the trial court’s judgment and render judgment disqualifying Ms. Saunders as a candidate for the Office of Alderman.

FACTS AND PROCEDURAL HISTORY

This matter arises out of Ms. Saunders’ notice of qualification for candidacy for the Office of Alderman. Ms. Saunders was an incumbent member and had served on the Board of Alderman for eighteen years.

When Ms. Saunders allegedly did not timely file a 2013 Tier 3 Annual Personal Financial Disclosure Statement, the BOE alleges that Ms. Saunders received a notice of delinquency on January 27, 2015. The BOE then issued an order assessing a $1,500.00 late fee to Ms. Saunders on March 18, 2015. The letter accompanying the order informed Ms. Saunders that she had twenty days from receipt of the letter to either request a waiver or appeal the assessment. The letter further stated “that unpaid fines, fees, or penalties may have an adverse effect on your ability to run for public office, as the Board of Ethics will object to your candidacy in future elections pursuant to La.R.S. 18:491 and 18:492.” That letter was dated March 18, 2015, and was transmitted to Ms. Saunders via certified mail, | ¡.return receipt requested. Ms. Saunders acknowledged in her trial testimony that she received this letter, and it was admitted into evidence.

The BOE alleges that Ms. Saunders did not timely request a waiver of this late fee. The BOE sent a letter to Ms. Saunders on May 13, 2015, which informed her that her request for a waiver was untimely and that the $1,500.00 late fee was due and owing and must be paid within ten days of the date of the letter. Again, the letter informed Ms. Saunders “that unpaid fines, fees, or penalties may have an adverse effect on your ability to run for public office, as the Board of Ethics -will object to your candidacy in future elections pursuant to La.R.S. 18:491 and 18:492.” Ms. Saunders acknowledged receipt of this letter in her trial testimony, and it was admitted into evidence.

A demand letter was sent to Ms. Saunders on May 21, 2015, again containing the warning about an adverse effect on the ability to run for public office. On July 10, 2015, the late fee order dated March 18, 2015, was transferred to the Louisiana Attorney General’s Office for collection proceedings.

On July 17, 2015, the BOE sent a letter to Ms. Saunders notifying her that she had an outstanding late fee and that the BOE would object to her candidacy to any elect> ed office as long as the late fee remained outstanding “even if you have a payment plan.” The letter also advised that “[pjrior to qualifying, you must submit your payment for the full amount owed.” (Emphasis added.) Ms. Saunders made a $100.00 payment on September 22, 2015.

Ms. Saunders submitted her notice of candidacy to run for the Office of Aider-man for the March 5, 2016 election to the Honorable Clyde R. Webber, Jr., Clerk of Court of the Parish of Concordia (Clerk of Court) on December 2, 2015. That notice contained a certification by Ms. Saunders that she did “not owe any [¡^outstanding fines, fees, or penalties pursuant to the Code of Governmental Ethics.” The notice of candidacy was admitted into evidence at the hearing, and Ms. Saunders confirmed that her signature appeared thereon and acknowledged the certification that she did not owe any fines, fees, or penalties. Ms. Saunders’ trial testimony also confirmed that she was aware that, at the time of the hearing, she still owed $1,400.00.

On December 11, 2015, the BOE filed an objection to Ms. Saunders’ candidacy alleging that Ms. Saunders owed fines totaling $1,400.00 to the BOE which were outstanding as of the filing of her notice of candidacy such that her certification was falsely sworn and that, consequently, Ms. Saunders was prohibited from becoming a candidate for alderman pursuant to La.R.S. 18:429(A)(6).

The matter came for hearing on December 14, 2015. Without objection from Ms. Saunders, the BOE introduced seven exhibits into evidence: (1) the sworn notice of candidacy; (2) letter dated March 18, 2015, and a certified true copy of the order assessing the $1,500.00 late fee; (3) letter dated May 13, 2015, indicating that Ms. Saunders’ request for waiver was untimely; (4) a certified true copy of the demand letter dated May 21, 2015; (5) a certified true copy of the transmittal sheet dated July 10, 2015, to the Attorney General; (6) affidavit of Stacey T. Landry (attorney for the BOE) regarding the outstanding late fee; and (7) a certified true copy of the BOE’s objection to candidacy dated July 17, 2015.

Ms. Saunders, who acknowledged that she wished to appear without counsel, did not submit any evidence. In a statement to the court, Ms. Saunders said: “I’ve been in office eighteen (18) years[,] and all I can say is, I didn’t realize |4that the fee had to be paid in complete, or I would have made the payment after qualifying.”

On December 15, 2015, at 11:26 a.m., the trial court initially signed a judgment disqualifying Ms. Saunders from running -for alderman. Notice of judgment was mailed that same day. At 11:39 a.m., on its own motion, the trial court signed an amended judgment finding that Ms. Saunders was qualified to run “on the condition of payment of all outstanding fees, fines, and penalties due to the [BOE] within 3 days from” December 15, 2015, Notice of judgment was mailed that same day.

The BOE filed a motion for'appeal on December 15, 2015, stating that it wished to appeal the amended judgment of the trial court. The order granting the appeal was signed on December 16,2015.

On December 17, 2015, the BOE asserts that it filed a motion for nullity in the trial court, seeking to have the amended judgment declared a nullity on the grounds that the amendment was substantive. No ruling by the trial court has been made on this motion.

The BOE asserts two assignments of error on appeal. First, the BOE argues that the amended judgment is null because it substantially altered the original judgment. Second, the BOE argues that trial court erred in overruling its objection to Ms. Saunders’ candidacy where the evidence showed that she falsely certified that she did not owe any outstanding fines.

DISCUSSION

The BOE argues that the amended judgment finding Ms. Saunders to be qualified conditioned upon the payment of the amount owed is a nullity since it substantially altered the original judgment that disqualified her. Louisiana Code of |RCivfl Procedure Article 1951 provides, in pertinent part, that: “[o]n motion of the court or any party,- a final judgment may be amended at any time to alter the phraseology of the judgment, but not its substance, or to correct errors of calculation.”

The BOE filed its motion to annul the amended judgment after an order of appeal regarding the amended judgment had been signed by the trial court. However, La.Code CivJP. art.2005 provides that “[a] judgment may be annulled prior to or pending an appeal therefrom” and that “[a]n action of nullity does not affect the right to appeal.” In Assensoh v. Diamond Nails, 04-1130, p. 6 (La.App. 4 Cir. 2/16/05), 897 So.2d 806, 810, writ denied, 05-601 (La.4/29/05), 901 So.2d 1073, the fourth circuit noted that “this article provides that ‘the two remedies may be sought simultaneously.’ 1 Frank L. Maraist and Harry T. Lemmon, Louisiana Civil Law Treatise: Civil Procedure § 12.6 (1999).”

The BOE’s motion for nullity is still pending in the trial court. We pretermit discussion of the merits of that motion as we find that the trial court committed manifest error in finding that Ms. Saunders was qualified to run for the Office of Alderman based on the evidence before us. We seek to avoid multiple appeals in this matter and are of the opinion that a resolution of this matter on the merits of the amended judgment best serves the interests of judicial economy in this election suit where time is of the essence.

The BOE asserts that Ms. Saunders must be disqualified as a candidate for the Office of Alderman because she falsely certified that she did “not owe any outstanding fines, fees, or penalties pursuant to the Code of Governmental Ethics.” We agree.

| (¡Louisiana Revised Statutes 18:492(A)(6) provides that:

An action objecting to the candidacy of a person who qualified as a candidate in a primary election shall be based on one or more of the following grounds:
The defendant falsely certified on his notice of candidacy that he does not owe any outstanding fines, fees, or penalties pursuant to the Code of Governmental Ethics as provided in R.S. 18:463(A)(2).

The party “objecting to candidacy bears the burden of proving that the candidate is disqualified.” Landiak v. Richmond, 05-758, pp. 6-7 (La.3/24/05), 899 So.2d 535, 541. Further explaining the burden of proof in a case regarding the qualification of a candidate, the Louisiana Supreme Court in Landiak, Id. at 542, stated that:

the legal term “burden of proof’ “denotes the duty of establishing by a fair preponderance of the evidence the truth of the operative facts upon which the issue at hand is made to turn by substantive law.” Black’s Law Dictionary (8th ed). Under Louisiana’s civil law, the “burden of proof’ may shift back and forth between the parties as the trial progresses. Therefore, when the burden of proof has been specifically assigned to a particular party, that party must present sufficient evidence to establish the facts necessary to convince the trier of fact of the existence of the contested fact. Stated another way, the party on which the burden of proof rests must establish a prima facie case. If that party fails to carry his burden of proof, the opposing party is not required to present any countervailing evidence. On the other hand, once the party bearing the burden of proof has established a prima facie case, the burden then shifts to the opposing party to present sufficient evidence to overcome the other party’s prima facie case.

In its reasons for judgment, the trial court stated as fact that:

Saunders was provided with a payment plan by the BOE in which to pay the sum of $1500.00. She in fact paid $100.00 on the plan[,] but there is still remaining outstanding the sum of $1400.00 for which she was never provided a time frame for payment by the BOE of the remaining balance due. Had such a time frame been provided to her, Saunders testified that she would have been compliant therewith and further testified that she is now and has always been willing to pay the said $1400.00 delinquency. Saunders further testified that she was 17never advised by the BOE that said payment plan had to be paid in full prior to her qualifying and running for the office which she presently occupies and would have made said payment upon being so advised.

We find that the BOE carried its initial burden of proof by offering evidence that Ms. Saunders was informed on several occasions that she had a balance owing, that unpaid fines, fees, or penalties would adversely affect the ability to run for public office, that the BOE would object to candidacy in future elections pursuant to La. R.S. 18:491 and 18:492, and that the balance must be paid in full prior to qualifying. Ms. Saunders’ testimony also established that she received these letters and was aware of their contents and was aware of the fact that the balance was due, owing, and remained unpaid at the time she filed her notice of candidacy.

Thus, the burden then shifted to Ms. Saunders to submit “countervailing evidence to overcome the plaintiffs proof.” Landiak, 899 So.2d at 546. Although, the trial court indicates that there was a payment plan in place, the record is devoid of any evidence or testimony to support such a finding. Therefore, we find that the trial court was manifestly erroneous in concluding that there was a payment plan in place that Ms. Saunders was unaware had to be paid in full. There is no conflict in the evidence or testimony, and the evidence clearly shows that Ms. Saunders knew that she owed money under the Code of Governmental Ethics at the time she filed her notice of candidacy. Even though the trial court’s reasons for judgment seem to suggest that Ms. Saunders had a good faith belief that she did not have to pay the whole amount in order tó certify that she did not owe any late fees in her notice of candidacy, we agree with the BOE that any confusion or lack of knowledge of |sthe law are irrelevant to the determination at issue herein. See State Board of Ethics v. Garriga, 15-1800 (La.10/9/15), 178 So.3d 994, and State Board of Ethics v. Arnold, 15-1795 (La.10/9/15), 176 So.3d 1029.

Based on the evidence submitted, Ms. Saunders’ certification that she did “not owe any outstanding late fines, fees, or penalties pursuant to the Code of Governmental Ethics” was false. Consequently, she is prohibited by law from becoming a candidate for the Office of Alderman.

DECREE

For all of the foregoing reasons, the trial court’s judgment finding Maureen Robbins Saunders qualified as a candidate of the Office of Alderman, District 3, City of Vi-dalia, Parish of Concordia (the Office of Alderman), conditioned upon her payment of all outstanding late fees, fines, and penalties is reversed, We render judgment in favor of the State of Louisiana Board of Ethics, declaring Ms. Saunders ineligible as a candidate for the Office of Alderman, and she is hereby disqualified.

REVERSED AND RENDERED.

SAUNDERS, J., concurs with written reasons.

Saunders, J.,

concurring.

| ¶ This entire litigation was set into motion by the defendant’s failure to timely file a 2013 Tier 3 Annual Personal Financial Disclosure Statement. The statute requiring such a filing was passed in the recent years under the auspices of transparency in government. This and other similar regulatory requirements are often handled by clerical staff, accountants, or attorneys working for elected public officials. These staff members are trained to handle ministerial matters of this type and work these duties into their daily routine. Persons elected to some of the less high profile offices in the state, such as alderman of smaller communities like Vida-lia, often have no clerical staff, accountants, or attorneys at their disposal and the public officials are often paid little or no remuneration for their services. In these circumstances, the requirements can be challenging and onerous and, in some circumstances, a real hardship. Nevertheless, the Legislature has seen fit to impose the same requirements on these officials as those of the more high profile category.

The imposition of a fine of $1500.00 for failure to file a disclosure report might indeed be considered harsh in the case of a public official from a small community serving in a position with little or no remuneration. Under these circumstances, it is easy to argue that the proposed disposition by the district judge to allow the candidate to run upon payment of the outstanding balance seems |2equitable, fair, reasonable, and that it achieves the purposes mandated by the Legislature. Under these circumstances, the passion that the law has for allowing persons to seek elected office would seem to suggest that an affirmation of the trial judge might be appropriate. See e.g. Louisiana Bd. of Ethics v. Wilson, 14-925 (La.App. 3 Cir. 9/9/14), 161 So.3d 785, writ denied, 14-1908 (La.9/15/14), 148 So.3d 938. This, however, is not the case. When the law is clear, the court shall not ignore the letter of the law in looking for the spirit. La.Civ.Code art. 9; La.R.S. 1:4, Judicial restraint mandates that we follow the clear wording of the statutory law and the jurisprudence of our supreme court. Under these circumstances, we must reverse. Nevertheless, it is with great discomfort and reservation that I concur in the result, noting that the greater purpose and greater equity of the law may be undermined by an overly strict application of statutory law, which may fairly be called draconian, and, if properly challenged, might well be found to be unconstitutional. We may, at least, hope that the Legislature, in the foreseeable future, will revisit this most awkward statutory mandate.

      . Although Ms. Saunders later requested a waiver, there is no evidence that Ms. Saun-dors contested the assessment or the grounds therefore.

      . Although the trial court seems to suggest that Ms. Saunders was confused about whether she had to pay the full amount due in order to be qualified, there is no evidence or testimony to support this finding. The June 17, 2015 letter clearly advised that the fine must be paid in full even if a payment plan was in place.

      . In Garriga, 178 So.3d 994, the Louisiana Supreme Court reversed the second circuit’s qualification of a candidate. Garriga requested a waiver and testified that he "assumed” the matter was taken care of when he did so. The trial court and the second circuit concluded that based upon its evaluation of Gar-riga's credibility that his certification that he owed nothing was not false at the time he made it. The lower courts noted that Garriga had a reasonable belief that he owed no late fee. Without giving reasons, the Louisiana Supreme Court reversed and disqualified Gar-riga.
      In Arnold, 176 So.3d 1029, the Louisiana Supreme Court reversed the second circuit’s qualification of a candidate where the second circuit found that he had no intent to make a false certification about monies owed based on his stated subjective belief that the assessment was not final. The BOE submitted proof that the late fee was in fact final. The Louisiana Supreme Court disqualified Arnold.


author: CONERY, Judge.

text:
    STATE of Louisiana v. Trey Charles MILLER, et al.
    No. 15-880.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 3, 2016.
    Randy J. Lasseigne, Lafayette, LA, for Defendants/Appellants, Bankers Insurance Company, Cajun Bail Bonds.
    Keith States, District Attorney-Parish of Lafayette Emilia Salas Pardo, Assistant District Attorney, Lafayette, LA, for Plaintiff/Appellee, State of Louisiana.
    Court composed of JOHN D. SAUNDERS, ELIZABETH A. PICKETT, and JOHN E. CONERY, Judges.
   CONERY, Judge.

| jankers Insurance Company and Cajun Bail Bonds appeal the denial by the trial court of their Motion to Be Relieved of Bond Obligation on the basis that the surety, Bankers Insurance Company, was not provided with proper notice of the Judgment of Bond Forfeiture by the clerk of court’s office. For the following reasons, we dismiss the appeal on behalf of Cajun Bail Bonds and affirm the judgment of the trial court.

FACTS AND PROCEDURAL HISTORY

Appellate Jurisdiction

On May 7, 2015, the trial court issued oral reasons denying the Motion to Be Relieved of Bond Obligation filed on behalf of Bankers and Cajun. Bankers filed a devolutive appeal pursuant to La.Code Cr.P. art. 349.6(B). Louisiana Code of Criminal Procedure Article 349.6(B) requires that a devolutive appeal “shall be perfected within one hundred twenty days after the date of mailing the notice of signing the judgment.”

When the appeal by Bankers was filed on June 16, 2015, the record did not contain the required written and signed final judgment of the trial court pursuant to La.Code Civ.P. art. 1911. Louisiana Code of Civil Procedure Article 1911 applies to final judgments under La.Code Civ.P. art. 2083, and requires that “every final judgment shall contain the typewritten or printed name of the judge and be signed |2by the judge.” Further, La.Code Civ.P. art. 1911(B) states, in pertinent part, “no appeal may be taken from a final judgment until the requirements of this Article have been fulfilled.”

On August 28, 2015, the record in this case was returned to the clerk of court for the Fifteenth Judicial District Court, with correspondence, requiring the following action be taken by the clerk’s office, “You are to add the Judgment of May 7, 2015 and a notice of judgment (if there is one).” The clerk of court Fifteenth Judicial District Court promptly responded and placed into the record on appeal a signed final written judgment and notice of judgment dated August 31, 2015.

Although the original appeal lodged on June 16, 2015 was premature, the supreme court in Ovemnier v. Traylor, 475 So.2d 1094, 1095 (1985) (footnote omitted), stated:

The correct interpretation of [La.Code Civ.P. art.] 1911 is that an appeal granted before the signing of a final judgment is subject to dismissal until the final judgment is signed. However, once the final judgment has been signed, any previously existing defect has been cured, and there is no useful purpose in dismissing the otherwise valid appeal.
This court has consistently recognized that appeals are favored in law. Traigle v. Gulf Coast Aluminum Corp., 399 So.2d 183 (La.1981). Moreover, the Code of Civil Procedure mandates that “(t)he articles of this Code are to be construed liberally, and with due regard for the fact that rules of procedure implement the substantive law and are not an end in themselves.” La.C.C.P. Art. 5051.

Having determined that this court has the required appellate jurisdiction as to Bankers Insurance Company, we will now proceed to the merits of the appeal.

| tissue on Appeal

On January 9, 2014, Trey C. Miller was charged with theft of jewelry valued over $500.00, but less than $1,500.00, in violation of La.R.S. 14:67(B)(2). Mr. Miller’s bond amount was fixed at $5,000.00, and his Appearance Bond was posted by Bankers as “Surety,” and Cajun as “Agent.” The Appearance Bond stated that Mr. Miller would appear at all court proceedings through the pronouncement of sentence.

On February 25, 2014, Mr. Miller failed to appear in court as ordered to answer to the theft charge lodged against him. The trial court issued a fugitive warrant for Mr. Miller and ordered that the appearance bond previously set at $5,000.00 be forfeited. The State introduced the entire Clerk’s file into the record, which contained the returns of service of the notice of arraignment date on all the parties, as well as the Appearance Bond.

In connection with the Appearance Bond, the Sheriffs Office’s “BOND ATTACHMENT” and Bankers’ “POWER OF ATTORNEY” were filed in the record. The power of attorney, dated June 10, 2013, and signed by Wilbur L. Martin IV, President, referenced Bankers’ bond number 580156698-3 for Mr. Miller, and Bankers’ address, Post Office Box 33015, St. Petersburg, Florida 33733. The Bankers’ power of attorney states, in pertinent part, the authority granted to its Agent:

[Bankers] does constitute and appoint, and by these presents does make, constitute and appoint below named agent its true and lawful Attorney-In-Fact for it and in its name, place and stead, to execute, seal and deliver for and on its behalf and as its act and deed, as surety, |4a bail bond only. Authority of such Attorney-In-Fact is limited to appearance bonds[.]

On March 25, 2014, an Assistant District Attorney for the Fifteenth Judicial District Court filed a Judgment of Bond Forfeiture, naming as defendants “Trey C. Miller” as principal and “Bankers Insurance Company” as surety, which was signed by the trial court on March 27, 2014. The Judgment of Bond Forfeiture requested service be made on Bankers at the address listed on their power of attorney documentation, Post Office Box, 33015, St. Peters-burg, Florida, 33733. The Judgment of Bond Forfeiture listed the identical bond number for Mr. Miller, as listed on Bankers’ power of attorney, 580156698-3.

Pursuant to La.Code Crim.P. art. 349.3(B), the clerk of court, on April 7, 2014, executed an affidavit of mailing of the Judgment of Bond Forfeiture to Bankers on April 4, 2014. The return receipt, also a part of the record on appeal, reflects the Judgment of Bond Forfeiture was received by Bankers on April 7, 2014, at the address listed on Bankers’ power of attorney, Post Office Box, 33015, St. Petersburg, Florida, 33733.

On October 1, 2014, Bankers filed a “Motion To Be Relieved Of Bond Obligation.” Bankers claimed the clerk of court had mailed the notice of judgment of bond forfeiture to the wrong address. Instead of mailing the notice of judgment to the address listed for Bankers on the power of attorney, according to Bankers, the clerk should have mailed the notice to the handwritten address on the appearance bond. It is undisputed that the address for Bankers had been “whited out” on the Appearance Bond and changed from Post Office Box 33015 to Post | ¿Office Box 15707 by Bankers’ Agent, Cajun. Therefore, Bankers argued that it had not received proper notice as required by La.Code Crim.P. art. 349.3.

Upon a request from Bankers, a rule to show cause on its motion was fixed for May 7, 2015. At the hearing on May 7, 2015, counsel for both parties informed the trial court that the only remaining issue was Bankers’ compliance with La.Code Crim.P. art. 349.3, which references La. Code Crim.P. art. 322. More specifically, counsel agreed that La.Code Crim.P. art. 349.3(A)(1) required that, “The notice of the signing of the judgment shall be mailed by United States certified mail with return receipt affixed thereto to ... the commercial surety at the address designated in Article 322[.]”

Louisiana Code of Criminal Procedure Article 322(A) provides, “A commercial surety shall inscribe its proper mailing address on the face of the power of attorney used to execute the bond.” Further, La.Code Crim.P. art. 322(B) (emphasis added) provides, “Each address provided pursuant to Paragraph A of this Article shall be conclusively presumed to continue for all proceedings on the bond until the party providing the address changes it by filing a written declaration in the proceeding for which the bond was filed.”

Pursuant to La.Code Crim.P. art. 349.3(A)(1) and La.Code Crim.P. art. 322(A), the clerk of court sent the notice of judgment to Bankers at the address shown on the Power of Attorney, which granted Cajun, as their agent, authority to execute lathe Appearance Bond. It is undisputed that Cajun, as Bankers’ agent, executed the change of Bankers’ address on the Appearance Bond by “whiting out” Bankers’ address on the Power of Attorney. Therefore,- Bankers’ claims the clerk of court should have sent the notice of judgment to Bankers at the new address on the Appearance Bond. Bankers’ urges that Cajun’s “whiting out” of the old address on the Appearance Bond constituted the filing of “a written declaration in the proceeding for which the bond was filed, pursuant to La.Code Crim.P. art. 322(B).”

After a review of Bankers’ Power of Attorney, the Appearance Bond, the pertinent Code of Criminal Procedure Articles, and argument of counsel, the trial court stated on the record at the hearing:

THE COURT: Well—But here’s the problem. It says—It says: “The commercial surety shall inscribe its proper mailing address on the face of the power of attorney used to execute the bond.”
THE COURT: And so, I mean, that’s where they’re supposed to do it. And it says: “Each address provided pursuant to Paragraph A—” which is on the bond “—shall be conclusively presumed to be continuing for all proceedings on the bond until the party filing the address changes it by filing a written declaration in the proceeding for which the bond was filed.” Well, the party would be the—in this case, the commercial surety. And so I don’t see where they made any sort of written declaration.
MR. LASSEIGNE: And, Your Honor— But they did change it on the appearance bond. And he did sign as the agent.
THE COURT: Well, I understand that. But you know, the clerk—the clerk is allowed to follow 322 in giving notice.
And so they have a right to look at the power of attorney and see what the address is and use that |7address, unless the surety—the commercial surety makes a written declaration.
And I don’t think the whiting out on an appearance bond by an agent is going to suffice. So I think proper notice was given.

As previously discussed, a formal final judgment denying the motion to be relieved of bond obligation was signed the trial court and noticed by the clerk’s office on August 31, 2015, from which Bankers now appeals.

ASSIGNMENT OF ERROR

Bankers assert the following assignment of error on appeal:

(1) Denial of the Motion to be Relieved of Bond Obligation based upon the Court’s ruling that the suretys’(sic) written address declaration on the appearance bond was not a declaration of a change of address in accordance with Louisiana Code of Criminal Procedure Article 349.3

DISCUSSION

Standard of Review

The case involves the interpretation of the Articles of the Louisiana Code of Criminal Procedure applicable to bond forfeiture, more specifically La.Code Crim.P. arts. 349.3 and 322, which control the notice required in order for the State to perfect a bond forfeiture. “The interpretation and application of the statutes are matters of law subject to a de novo standard of review.” State v. Lexington Nat., Ins. Corp., 13-1134, p. 2 (La.App. 3 Cir. 3/5/14), 134 So.3d 230, 232. “[T]he law in effect at the time of bond forfeiture is what applies.” State v. Adkins, 613 So.2d 164, 166 (La.1993) (per curium).

A panel of our sister circuit in State v. Johnson, 13-133, pp. 3-4 (La.App. 1 Cir. 11/1/13), 136 So.3d 15, 17-18, succinctly summarized the jurisprudence which governs our review of a bond forfeiture:

I «The general rule is that bond forfeitures are not favored State v. Bailey, 567 So.2d 721, 724 (La.App. 2 Cir.1990). A bond forfeiture is basically a civil proceeding; however, it is subject to the special rules as set forth in the Code of Criminal Procedure. State v. Likens, 577 So.2d 285, 289 (La.App; 3 Cir.1991), writ denied, 580 So.2d 386 (La.1991). In order to obtain a judgment of bond forfeiture against a surety, the State must strictly comply with the terms of the statutory provisions regulating bond forfeitures. Bankers Insurance Company v. State, 37-080, p. 4 (La.App. 2 Cir. 4/11/03), 843 So.2d 641, 644, writ denied, 2003-1240 (La.6/27/03), 847 So.2d 1268.

The trial court found that the “whiting out on an appearance bond by an agent” would not suffice to satisfy the requirements of La.Code Crim.P. art. 322(B), which requires, a “written declaration” by Bankers, as surety, of a change of address be filed in the record of the proceedings.

We agree that a handwritten change of address on the Appearance Bond fails to evidence a “written declaration” by Bankers that they have a new address, especially in light of the requirement in La.Code. Crim.P. art. 349.3 that states, “The notice of the signing of the judgment shall be mailed by United States certified mail with return receipt affixed thereto to .,. the commercial surety at the addresses designated in Article 322[.]” (Emphasis added.)

The mandatory language in La.Code Crim.P. art. 349.3, coupled with the mandatory language of La.Code Crim.P. art. 322(A), requires, “A commercial surety shall inscribe its proper mailing address on the face of the power of attorney used to execute the bond.” (Emphasis added.) The use of the mandatory shall language, as the trial court found, would not allow the use of “whiteout” and a “handwritten address change” by Cajun, as Bankers agent on the Appearance Bond, to overcome the presumption and satisfy the requirements of the “written declaration” required by La.Code Crim.P. art. 322(B).

|flThe trial court further found that the clerk of court could rely on the address given by Bankers on the Power of Attorney in sending notice, and we agree the article so provides. Additionally, the return receipt attached by the clerk of court to the judgment of bond forfeiture was signed by Bankers on April 7, 2015. Thus, it is undisputed that Bankers received actual notice of the judgment.

After conducting a de novo review of the record and considering the provisions of both La.Code Crim.P. arts. 349.3 and 322, we affirm the trial court’s judgment of August 31, 2015, in its entirety.

CONCLUSION

Based on the foregoing, we affirm the August 31, 2015 formal final judgment of the trial court denying Bankers Insurance Company Motion To Be Relieved of Bond Obligation. The appeal on behalf of Cajun Bail Bonds is dismissed in its entirety. Costs of this appeal are to be assessed to Bankers Insurance Company.

APPEAL ON BEHALF OF CAJUN BAIL BONDS DISMISSED; JUDGMENT OF THE TRIAL COURT AFFIRMED.

      . The judgment of bond forfeiture, which Bankers and Cajun seek to have overturned on appeal, named as defendants, Trey C. Miller, as principal, and Bankers, as the surety on the appearance bond. Cajun was not a named defendant, and therefore has no right to appeal. This court is bound to review the record and has the authority to notice on its own motion pursuant to La.Code Civ.P. art 927(B) whether a party has a right or interest in this appeal. See State v. Lexington Nat., Ins. Corp., 13-1134 (La.App. 3 Cir. 3/5/14), 134 So.3d 230, which held "that only the surety [Bankers] may be held liable for bond forfeiture judgments ... the bondsmen [Cajun] are not the surety of the bonds, they are merely agents to the surety and have no obligations under the statutory language.”

      . Louisiana Revised Statutes 14:67 was revised effective August 1, 2014.

      . Appearance Bond Number: 704515D was filed on January 17, 2014. Mr. Miller, by signing, agreed to the following, "I hereby specifically agree to appear in Court on when Notified.”

      . In their motion to be relieved of bond obligation, Bankers also cited, in the alternative, La.Code Crim.P. art. 344, as a basis of relief from the bond obligation. Bankers' alternative argument under La.Code Crim.P. art. 344 was neither argued to the trial court nor briefed to this court on appeal, thus it is considered abandoned. Uniform Rules—Court of Appeal, Rule 2-12.4(B)(4).

      . In the interim, Mr. Miller surrendered to authorities and a new bond was fixed. An Appearance Bond was issued by another company. By all accounts he is presently represented by counsel and has appeared as ordered by the Court.


author: SAUNDERS, Judge.

text:
    Salvador COSCARART v. Gina Louise Beaugh COSCARART.
    No. 15-794.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 10, 2016.

      Jack Derrick Miller, Nicole B. Breaux, Attorney at Law, Crowley, LA, for Defendant/Appellant, Gina Louise Beaugh Cos-carart.
    Randall M. Guidry, Durio, McGoffin, Stagg & Ackerman, Lafayette, LA for Plaintiff/Appellee, Salvador Coscarart.
    Court composed of JOHN D. SAUNDERS, ELIZABETH A. PICKETT, and JOHN E. CONERY, Judges.
   SAUNDERS, Judge.

11 Gina Coscarart (“Gina”) appeals from the judgment of the trial court increasing the amount of final spousal support to be paid by her former husband Salvador Cos-carart (“Sal”). We find that the trial court abused its discretion in its increase of alimony, amend the judgment, and affirm as amended.

FACTS AND PROCEDURAL HISTORY

Sal and Gina married in 1980 and divorced in 2008. Their former community has been partitioned. By written judgment dated October 31, 2013, Sal was ordered to pay $900.00 per month to Gina in final spousal support. Sal appealed and the judgment was affirmed. Coscarart v. Coscarart, 14-84 (La.App. 3 Cir. 6/18/14), 2014 WL 2809079(unpublished opinion).

The litigation between the parties continued and on March 11, 2015, Gina filed a rule to show cause why the final spousal support should not be increased. The parties stipulated to Gina’s need of support. At trial, the only evidence submitted was the affidavits and testimony of the parties. In her affidavit, Gina claimed that her gross monthly income was $478.00 and her expenses were $3,340.71. Sal agreed that Gina’s affidavit truly and accurately reflected Gina’s income and expenses. In his affidavit, Sal claimed that his gross monthly income was $8,069.19, his net monthly income was $5,630.28, and that his monthly expenses were $4,831.14.

By judgment signed on July 20, 2015, Sal was ordered to pay to Gina final spousal support in the amount of $1,200.00 per month. In its oral reasons for judgment, the trial court explained that it found that Gina was clearly in need, that Sal’s net monthly income was $6,630.00 when the rental payments on his former home were considered, that Sal submitted no evidence to support his affidavit, and that Sal testified he was no longer paying certain expenses listed on his affidavit. 12The trial court did not make a finding as to the precise amount of Sal’s monthly expenses or disposable income, but found that Sal “clearly can pay twelve hundred a month in spousal support.” Gina appeals the judgment, asserting she should have been awarded more alimony.

ASSIGNMENT OF ERROR

In her sole assignment of error, Gina asserts that:

The lower court erred, as a matter of law, in failing to consider the true financial obligations of Sal after he expressly acknowledged that $1,592.50 of his monthly claimed expenses did not exist; that he had absolutely no documentation for his other claimed expenses of $702.00 per month; and that one of his expense figures was actually $100.00 in excess of the true amount. Those incorrect amounts (those in addition to the $1,592.50 of nonexistent expenses), total $961.50; and should have resulted in a substantially greater award of monthly spousal support. This is especially so when one considers that the court had “easily” determined that Gina had a net need of $2,862.71 (expenses of $3,340.71-income of $478.00).

STANDARD OF REVIEW AND APPLICABLE LAW

An award of final spousal support is reviewed for abuse of discretion. Bhati v. Bhati, 09-1030 (La.App. 3 Cir. 3/10/10), 32 So.3d 1107. Louisiana Civil Code Article 112 requires that, in awarding final spousal support, “[t]he court shall consider all relevant factors ... including[:]”

(1) The income and means of the parties, including the liquidity of such means.
(2) The financial obligations of the parties.
(3) The earning capacity of the parties.
(4) The effect of custody of children upon a party’s earning capacity.
(5) The time necessary for the claimant to acquire appropriate education, training, or employment.
(6) The health and age of the parties.
(7) The duration of the marriage.
h(8) The tax consequences to either or both parties.

Additionally, La.Civ.Code art. 112 requires that the award of final spousal support “shall not exceed one-third of the obligor’s net income.”

DISCUSSION

At trial, Sal testified that he was receiving $1,100.00 per month from the rental of his home. This income was not included on his affidavit. He further testified that $100.00 of that amount was used to maintain the lawn. Further, Sal testified that he receives a yearly Christmas bonus in the amount of $1,000.00, which was also not included on his affidavit.

On his affidavit, Sal claimed to expend $85.00 per month on transportation, which he asserted was the cost of washing the company vehicle provided to him for both business and personal use, $180.00 per month on yard care, $60.00 on gas and oil, which he claimed was for the maintenance of his motor cycle, which was no longer operable, $10.00 per month for motorcycle repairs, $175.00 per month on dental maintenance, $50.00 per month on internet service, $50.00 per month on haircuts, $500.00 per month on credit card bills, $156.00 per month on appliance insurance, $222.50 per month on life insurance, $30.00 per month on holiday expenses, $10.00 per month on books and magazines, $50.00 per month in charitable contributions, and $40.00 per month in activity fees. However, at trial, he testified that these expenses no longer existed.

On his affidavit, Sal also claimed $30.00 per month in laundry and cleaning costs, $50.00 per month in costs for over-the-counter medication, $160.00 per month in other medical expenses, $150.00 for electricity at the home of his new spouse, $139.00 per month of cable at his wife’s home, $20.00 per month on natural gas at his wife’s home, and $142.00 per month for the cellular phone bill. However, he testified that he “[did] not know how much [he] spent” on these items. | ¿Additionally, Sal submitted no documentation of any of these expenses. Sal further claimed expenses for legal fees in the amount of $500.00 per month, but submitted no documentation of such expense at trial.

On the basis of the record, we find that the trial court committed an abuse of discretion in the amount awarded to Gina. Sal clearly testified that many of the claimed expenses no longer existed and that he did not know the amount he spent on others. Moreover, he submitted no documentation to substantiate the claimed expenses of which he was unsure of the amount spent by him. In the absence of any documentation of these speculative expenses, we decline to consider them.

On the record before us, we find that Sal’s gross monthly income to be $9,152.52, which includes his claimed salary of $8,069.19, $1,100 per month in rental income less the $100.00 lawn expense on the property, and $1,000 per year in an annual bonus, which translates to $83.33 per month. On his affidavit, he reported payroll deductions of $2,388.91, resulting in a net monthly income of $6,763.61.

We further find that the expenses he admitted no longer existed, as well as the expenses for which he could not specify an amount and for which he submitted no documentation, must be excluded from the calculation of his total monthly expenses. Thus, we find that his monthly expenses total $858.16 for the mortgage note on his rental property, $40.50 for an alarm expense, $100.00 per month in maintenance, $25.00 per month for pest control, $350.00 for food, $25.00 per month for household supplies, $30.00 per month for clothing, $85.00 per month for vehicle insurance, $459.09 for medical insurance, and $80.00 per month for meals away from home, which totals $2,052.75. We further conclude that Sal’s disposable income equals $4,710.86, which is his net income less the documented expenses of $2,052.75.

UThe amount by which the payee’s allowable monthly expenses exceeded his or her income is the appropriate award of final periodic spousal support. See King v. King, 48,881 (La.App. 2 Cir. 2/26/14), 136 So.3d 941. On the stipulation of the parties, Gina has a monthly income of $478.00 and her expenses were $3,340.71. Thus, her expenses exceed her income by $2,862.71 per month. In ordering Sal to pay Gina final periodic spousal support in the amount of $1,200.00 per month, the trial court’s figure was significantly lower than the amount of need stipulated by the parties. Thus, we amend the trial court award to require Sal to pay Gina final periodic spousal support in the amount of $1,570.29 per month, which is one-third of his income per month after payroll deductions and expenses. La.Civ.Code art. 112.

Decree

For the foregoing reasons, the judgment of the trial court is affirmed, as amended. Costs of this appeal are assessed to Appel-lee, Salvador Coscarart.

AFFIRMED AS AMENDED.


author: THIBODEAUX, Chief Judge.

text:
    SUCCESSION OF Russell LEAVINES.
    No. 15-923.
    Court of Appeal of Louisiana, Third Circuit.
    March 2, 2016.
    Rehearing Denied April 6, 2016.
    Victor Herbert Sooter, Sooter & Associates, Alexandria, LA, for Other Appellee— Betty Taylor Leavines.
    Zebulon M. Winstead, Crowell and Owens, L.L.C., Alexandria, LA, for Other Appellant—Mayme Holt Brown.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS, and BILLY HOWARD EZELL, Judges.
   THIBODEAUX, Chief Judge.

LMayme Holt Brown appeals a trial court judgment finding that the testament of her great-grandfather, Russell Leavines (“the decedent”), bequeathed a piece of immovable property known as Tract II to his wife, Betty Taylor Leavines. The decedent died testate in 2011; his will left his “family home and residence” to Brown, subject to a usufruct in favor of Betty Leavines, and left his “remaining property” to Betty Leavines. At the time of his death, the decedent possessed two pieces of immovable property, known as Tract I and Tract II. Based on the decedent’s testament, the Detailed Descriptive List of his property, and the parties’ memoranda, the trial court concluded that the decedent’s testament clearly and unambiguously bequeathed Tract II to Betty Leavines as part of the decedent’s “remaining property.” For the following reasons, we affirm the judgment of the trial court.

I.

ISSUE

The sole issue in this case is whether the trial court correctly determined that the decedent’s last will and testament clearly and unambiguously bequeathed the piece of land known as Tract II to his widow, Betty Leavines.

II.

FACTS AND PROCEDURAL HISTORY

Russell Leavines died testate on October 22, 2011. He was married twice and was survived by Betty Leavines. The decedent had one daughter from his first marriage; Brown is |2his great-granddaughter. The decedent and Betty Leavines had no children.

The decedent’s notarial last will and testament, dated August 23, 2011, includes two bequests relevant to this case. The first is a bequest to Brown, which reads:

I give and bequeath to my great granddaughter, Amy Holt Brown ... all of my right, title, and interest in and to my family home and residence (currently 9768 Highway 28 West, Boyce, Louisiana, 71409) in naked ownership, subject to a right of usufruct in favor of Betty [Taylor Leavines], which shall terminate upon her death or remarriage.

The second bequest provides: “I give my remaining property to my wife, Betty Taylor Leavines.” “Property” was defined in the testament as “property of which I [the decedent] die possessed, of whatever nature or kind, wherever located and however acquired, whether now owned by me or hereafter acquired.”

After Betty Leavines (the executrix of the decedent’s estate) and Brown filed a Petition for Probate, Betty Leavines filed a Petition for Partial Possession, which included a Detailed Descriptive List of the decedent’s property. The list included, among other items, descriptions for two pieces of immovable property. The first, “Tract I,” was described as:

Certain pieces, parcels, or tracts of land, together with all buildings and improvements thereon and ah rights, ways, and privileges thereunto belonging or appertaining, being, lying, and situated in Rapides Parish, Louisiana, and being more particularly described as follows:
The East Half (E]é) of Lot Three (3) and all of Lot Four (4) of the Thomas F. Leavines Partition situated in Section Fifty (50), Township Four (4) North, Range Three (3) West, Rap-ides Parish, Louisiana, as per plat thereof recorded in Conveyance Book 645, Page 577, or the records of Rapides Parish, Louisiana.

The second, “Tract II,” was described as:

A certain piece, parcel, or tract of land, being, lying and situated in Rapides Parish, Louisiana, and being more particularly described as Southeast Quarter (SE}4) of the Northwest Quarter (NEJO [sic] of Section Fifty (50), Township Four (4) North, Range Three (3) West, Rapides Parish, Louisiana LESS AND EXCEPT certain tracts particularly described in the Act of Exchange dated November 14,1978, recorded in Conveyance Book 950, Page 500 of the records of Rapides Parish, Louisiana, the property herein conveyed containing an area of 11.38 acres, more or less, and being that property acquired by Russell Leav-ines from Thomas E. Leavines in the Act of Exchange described hereinabove.

In the Petition for Partial Possession, Betty Leavines noted that she and Brown disputed whether Tract II was part of the bequest of the family home and residence. Brown did not join in the Petition for Partial Possession.

The trial court ordered the parties to submit memoranda of law on ownership of Tract II, as well as on whether the testament was clear and unambiguous or whether the trial court ought to hear oral testimony. Brown argued that the decedent had included Tract II in his homestead exemption under La.R.S. 20:1, and that this indicated that Tract II was also part of his residence and therefore bequeathed to Brown. She listed under “Undisputed Facts” in her memorandum that “[t]he deceased went to the Rapides Parish Tax Assessor’s Office while alive and signed a form designating both [Tract I] and [Tract II] as his homestead under La. R.S. 20:1.” However, the record contains no such form or other evidence of the decedent’s homestead. Betty Leavines asserted that jurisprudence does not require “homestead” to be synonymous with “residence” or “family home.” Betty Leavines also pointed out that the decedent’s will does not | include Tract II in the description of the family home and Tract II was acquired separately from Tract I, indicating that it is not part of the family home and residence located on Tract I.

The trial court largely adopted Betty Leavines’s reasoning and concluded that Tract II was clearly and unambiguously part of the bequest to her. It did not address Brown’s argument regarding the homestead exemption. The trial court issued its judgment based on the testament, the Detailed Descriptive List, and the parties’ memoranda, but it did not hold a hearing to take testimony or other evidence. Brown filed a timely appeal of the judgment, arguing that the trial court erred in ruling that Tract II was part of the “remaining property” bequeathed to Betty Leavines.

III.

LAW AND DISCUSSION

Brown argues on appeal that since both Tract I and Tract II were designated as the decedent’s homestead pursuant to La. R.S. 20:1, Tract II was clearly and unambiguously part of the “family home and residence” bequeathed in naked ownership to Brown. Alternatively, Brown argues that the will is not clear and unambiguous, and the case should be remanded so the trial court can conduct a hearing to take evidence to determine the decedent’s intent. Betty Leavines responds that Louisiana jurisprudence does not hold that a homestead under La.R.S. 20:1 is synonymous with the family home or residence. She contends that since Tract II was acquired separately, has a separate property description from Tract I, and is not included in the description of the family home in the decedent’s testament, Tract II is not part of the bequest to Brown.

^Before we reach the merits of the parties’ argument, we must determine the proper standard of review in this case.

Standard of Review

Both parties frame the issue in this case as a question of fact, which would normally be reviewed under the manifest error-clearly wrong standard of review. See In re Succession of Bernat, 11-368 (La.App. 3 Cir. 11/2/11), 76 So.3d 1287, unit denied, 12-263 (La.3/30/12), 86 So.3d 122. However, in this case, the trial court did not hold a hearing or take evidence. Rather, the trial court only reviewed and interpreted the language of the testament. When no evidence is introduced to the trial court, the doctrine of manifest error does not apply. See MWD Servs., Inc. v. Humphries, 09-668 (La.App. 3 Cir. 12/9/09), 26 So.3d 906. Instead, “[interpretation of an instrument’s language is a question of law that this court reviews to determine whether the trial court was legally correct.” In re Succession of Collett, 09-70, p. 2 (La.App. 3 Cir. 6/3/09), 11 So.3d 724, 726, writ denied, 09-1485 (La.10/2/09), 18 So.3d 112 (citing Cleland v. City of Lake Charles, 02-805 (La.App. 3 Cir. 3/5/03), 840 So.2d 686, writs denied, 03-1380, 03-1385 (La.9/19/03), 853 So.2d 644, 645). Therefore, we will review the trial court’s judgment for legal error.

Interpretation of Testament

Louisiana Civil Code Articles 1611 through 1616 govern the interpretation of testaments. Louisiana Civil Code Article 1611(A) is particularly relevant to this case:

The intent of the testator controls the interpretation of his testament. If the language of the testament is clear, its letter is not to be disregarded under the pretext of [ (¡pursuing its spirit. The following rules for interpretation apply only when the testator’s intent cannot be ascertained from the language of the testament. In applying these rules, the court may be aided by any competent evidence.

This court has previously found, with regard to the interpretation of testaments:

“Courts must interpret a will according to its plain language since ‘the intent of the testator is the paramount consideration in determining the provisions of a will.’ ” Succession of Hackney, 97-859, p. 5 (La.App. 3 Cir. 2/4/98); 707 So.2d 1302, 1306, writ denied, 98-596 (La.4/24/98); 717 So.2d 1172 (quoting Succession of Schiro, 96-1567, p. 6 (La. App. 4 Cir. 4/9/97); 691 So.2d 1374, 1377, writs denied, 97-1400, 97-1423 (La.9/5/97); 700 So.2d 518). The intention of the deceased must be ascertained from the whole will, and effect must be given to every part of the will as far as the law will permit. “Where it is a question of the choice between two interpretations, one of which will effectuate, and the other will defeat, a testator’s intention, the court will carry out the intention of the testator.” Carter v. Succession of Carter, 332 So.2d 439, 441 (La.1976) (quoting Succession of LaBarre, 179 La. 45, 48, 153 So. 15, 16 (1934)). Additionally, Louisiana case law has recognized that in the interpretation of wflls, the first and natural impression conveyed to the mind on reading the will as a whole is entitled to great weight. “The testatrix is not supposed to be propounding riddles but rather to be conveying her ideas to the best of her ability so as to be correctly understood at first view.” Succession of Meeks, (La.App. 2 Cir.1992); 609 So.2d 1035, 1038, writ denied, 612 So.2d 86 (La.1993).

In re Succession of Helms, 01-1357, pp. 2-3 (La.App. 3 Cir. 3/6/02), 810 So.2d 1265, 1267-68.

In this case, the plain language of the testament bequeaths “my [the decedent’s] family home and residence” to Brown, subject to a usufruct in favor of Betty Leavines, and “my [the decedent’s] remaining property” to Betty Leavines. The trial court concluded, and the parties do not dispute, that the family home is located on Tract I. This interpretation is further aided by the property descriptions 17of each tract: Tract I includes “all buildings and improvements thereon,” whereas Tract II is described only as “[a] certain piece, parcel or tract of land” without any buildings. The bequest to Brown (the “family home and residence (currently 9768 Highway 28 West, Boyce, Louisiana, 71409)”) indicates that the family home and residence are located in the same place: Tract I. Tract II has a separate property description, and there is nothing to indicate that it was part of the “residence” located on Tract I. The will and the detailed property description therefore clearly bequeath Tract I to Brown in naked ownership as the “family home and residence” and Tract II to Betty Leavines as part of the decedent’s “remaining property.”

We further note that Brown’s argument regarding the decedent’s supposed homestead exemption is not supported by any evidence and cannot be considered by this Court. Brown argues that Tract II is part of the residence because it was included in the decedent’s homestead exemption under La.R.S. 20:1. While Brown claims that the inclusion of Tract II in the homestead exemption is an “[u]ndisputed [f]act[ ],” there is no evidence in the record that this was true, or even that the decedent ever designated a homestead under La.R.S. 20:1. “Evidence not properly and officially offered and introduced into evidence cannot be considered” by a court of appeal. Ray Brandt Nissan, Inc. v. Gurvich, 98-634, p. 3 (La.App. 5 Cir. 1/26/99), 726 So.2d 474, 476 (citing Touzet v. Mobley, 612 So.2d 890 (La.App. 5 Cir.1993), writ denied, 612 So.2d 890 (La.1993)). Accordingly, Brown’s argument that Tract II was included in the homestead exemption and therefore was part of the decedent’s residence will not be considered by this Court.

Because we find the decedent’s will clear and unambiguous, we need not consider Brown’s argument that the case ought to be remanded to determine 18the decedent’s intent. The trial court’s judgment that the decedent’s testament bequeathed Tract II to Betty Leavines was legally correct.

IV.

CONCLUSION

The judgment of the trial court is affirmed. Costs of this appeal are assessed to the appellant, Mayme Holt Brown.

AFFIRMED.


author: AMY, Judge.

text:
    Eugene J. SONNIER, II v. The CATHOLIC FOUNDATION OF THE DIOCESE OF LAFAYETTE, et al.
    No. 15-1051.
    Court of Appeal of Louisiana, Third Circuit.
    March 2, 2016.
    Rehearing Denied April 13, 2016.

      Harold D. Register, Jr., Lafayette, LA, for Plaintiff/Appellant, Eugene J. Sonnier, II.
    D. Reardon Stanford, Hoyt & Stanford, Lafayette, LA, for Defendant/Appellee, Norlet Pierre.
    Troy Allen Broussard, Allen & Gooch, Lafayette, LA, for Defendants/Appellees, Society of the Roman Catholic Church of the Diocese of Lafayette, The Catholic Foundation of the Diocese of Lafayette, The Congregation of St. Genevieve Roman Catholic Church.
    Court composed of MARC T. AMY, PHYLLIS M. KEATY, and JOHN E. CONERY, Judges.
   AMY, Judge.

1 iThe plaintiff filed suit alleging that the defendants interfered with his right to direct the disposition of his son’s remains as designated by his son and as reflected by a military form. He alleged that, by virtue of the designation, the cemetery plot in which his son was buried, as well as the two adjacent plots should be titled solely in his name. Following amendment of the petition, the trial court sustained the defendants’ exceptions of no cause of action and dismissed the plaintiffs claim. The plaintiff appeals. For the following reasons, we affirm.

Factual and Procedural Background

The record indicates that Eugene Sonnier, III, the son of Eugene J. Sonnier, II and Norlet Pierre, died in October 2013 while serving in the United States Air Force. He was ultimately buried in Plot 21 of the Calvary Cemetery in Lafayette.

Mr. Sonnier filed this matter and by amending petition alleged that, by designation of his son, he was “the Person Authorized to Direct (PADD) the Disposition” of his son following his death. Mr. Sonnier asserted that this designation provided him with the exclusive right to “control the interment” of his son’s remains “through the Department of] D[efense] Form 93.” (hereinafter Form 93.)

Mr. Sonnier initially named The Catholic Foundation of the Diocese of Lafayette, Louisiana (the “Diocese”) and Mrs. Pierre as defendants, alleging that he was the sole owner of the subject burial plot and that he “acquired ownership of the property” “by way of an insurance assignment, payments made individually, and/or pursuant to rights bestowed upon him by his son via a properly executed” Form 93. Yet, he contended that Mrs. Pierre was “in possession of the property” and was “erroneously claiming an ownership interest in” the plot. Mr. Sonnier ^asserted that the discord surrounding the plot resulted in the decedent’s tomb not being completed. Mr. Sonnier alleged that the “Diocese of Lafayette, through Calvary Cemetery” “will complete the construction of said tomb” to his “irreparable detriment” if not restrained. Therefore, Mr. Sonnier sought the issuance of a temporary restraining order preventing the completion of the construction of the decedent’s tomb. He further prayed that he be recognized as the “legal owner” of the subject plot and that the trial court order “that Defendant’s alleged acquisition of ownership of said property be erased from any public record in this parish applicable to cemetery plots.”

In response, the Diocese filed an exception of no cause of action, noting that the plaintiff did not allege that it owned or managed the cemetery. The Diocese further suggested that Mr. Sonnier’s suit was “procedurally flawed” as it did not name the cemetery’s owner, St. Genevieve Roman Catholic Church of the Diocese of Lafayette, as a defendant. Addressing an aspect of the factual background that was not included in the original petition, the Diocese noted that Plot 21 was initially titled only in Mr. Sonnier’s name. However, upon learning of Mr. Sonnier’s and Mrs. Pierre’s dispute as to the title, the Vice President of St. Genevieve, Monsignor Curtis Mallet, reviewed the dispute and “determined that the initial titling of the plot in Sonnier’s name only was in error, and he directed the cemetery staff to issue a corrected title in Sonnier and Pierre’s names, jointly.” The title was thereafter reissued. Further, the Diocese asserted that no cause of action existed as the cemetery was following its own rules and regulations in requiring completion of the tomb after Mr. Sonnier and Mrs. Pierre did not do so in | ..¡excess of one year after their son’s interment. This factor, the Diocese asserted, undermined the request for a restraining order as well.

By “Amended Petition for Recognition of Ownership and Injunctive Relief,” Mr. Sonnier named St. Genevieve Roman Catholic Church of the Diocese of Lafayette as a defendant. He alleged that “St. Genevieve purportedly owns Calvary Cemetery and as the owner of the cemetery St. Genevieve intends to complete construction of said tomb unless the dispute as stated in the original Petition is resolved between Plaintiff and Mrs. Pierre.” Mr. Sonnier asserted that “construction could begin any day now,” and that such construction of the tomb would cause, him irreparable injury “as the tomb carries his son, and he has a strong interest and right in completing said tomb in a reasonable manner to his choosing.” Further, he alleged that Form 93 provided him with the exclusive right to control the interment of his son and that La.R.S. 8:655, addressed below, as well as “military and federal law[,] override[ ] the policies as elicited by St. Genevieve which allegedly give it the right to complete construction of said tomb.” He asserted that he “is the sole and exclusive owner” of Plot 21 “granted to him thought [sic] the DD Form 93.”

Mr. Sonnier additionally alleged that adjacent Plots 20 and 22 “were improperly given to Mrs. Pierre because they were procured in a deceptive fashion.” On this latter point, Mr. Sonnier stated that: “Mrs. Pierre was aware that Mr. Sonnier informed Mr. Dunand [] that Mr. Sonnier would purchase the aforementioned plots, however, totally disregarding Plaintiffs right to exclusively control the interment of Mr. Sonnier, III, Mrs, Pierre purchased the aforementioned | ¿burial plots and was granted ownership” of them. Mr. Sonnier asked that the trial court rule that he “is the correct and sole owner” of the two plots or, alternatively, that he “is the sole owner” of either plot. Barring these alternatives, Mr. Sonnier asked that the trial court permit him to remove his son’s remains to another cemetery as he “has the exclusive right to control” his son’s interment.

Following the amendment to the petition, the Diocese submitted evidence pertaining to the plot ownership as an exhibit to its memorandum in support of its exception of no cause of action and in opposition to the petition for recognition of ownership and injunctive relief. Additionally, Mrs. Pierre filed exceptions of no cause of action and vagueness or ambiguity of the petition.

Upon consideration of these initial filings, the trial court sustained the Diocese’s exception of no cause of action and further sustained Mrs. Pierre’s exception of vagueness and ambiguity of the petition. The trial court’s ruling permitted Mr. Sonnier fifteen days to amend the petition.

Thereafter, Mr. Sonnier filed a Second Amended Petition for Recognition of Ownership and Injunctive Relief once again asserting that he held exclusive rights as the PADD (under Form 93). He further included allegations regarding his and Mrs. Pierre’s actions in preparing for the burial of their son. He asserted that “[o]ut of the kindness of his heart,” he invited Mrs. Pierre to join him at Calvary Cemetery, “not for her to make any decisions whatsoever, but for her to be there while [he] utilized his exclusive rights as the PADD to arrange” their son’s funeral | ¡¡service. He stated that he made all selections involving plot location and vault and informed the respective personnel to forward the bills to him. He also alleged that he paid for various other funeral service expenses. He stated that, although Mrs. Pierre was aware that he intended to “and was going to pay for the plots adjacent to” their son, Mrs. Pierre “maliciously proceeded to divest [him] of his exclusive rights to direct the disposition of [their son] when she directed” her husband to go to the cemetery and purchase Plots 20 and 22 before he could purchase them.

Mr. Sonnier further complained that Monsignor Mallet failed to correct “the error” of cemetery officials in selling the adjacent plots to Mrs. Pierre’s husband and thereby “completely usurp[ed] the vested rights given to [him] as the PADD.” The conflict surrounding the ti-tie issues as to the three plots, Mr. Sonnier asserted, resulted in the inability to complete the gravesite “because the concept that [he] rightfully chose as the PADD, requires the two adjacent burial plots that were improperly sold and taken away from [him]” and, therefore, “completely divesting” him “of his clear and absolute right to direct the disposition” of his son’s remains. Mr. Sonnier asserted that he paid for all expenses associated with his son’s funeral, “including the burial plot where [he] is buried” and further reimbursed Mrs. Pierre for any of her expenses. While he suggested that he bore “[a]ll financial responsibility” associated with the disposition of his son’s remains, he further alleged that “10 U.S.C. § 1482 entitled ‘Expenses Incident to Death’ not only gives [him] authorization as the PADD, but also gives [him] monetary support to carry out his duties as the PADD.”

At the conclusion of the second amended petition, Mr. Sonnier requested that the trial court name him as the sole owner of Plot 21 and “[i]n the alternative” he requested that the trial court name him the sole owner of Plots 20 and 22. | ^Finally, Mr. Sonnier prayed that if the trial court did not grant the above demands, he asked that the trial court “relocate” his son’s body to another location within the cemetery.

Following the amendment, the Diocese and St. Genevieve again filed an exception of no cause of action as did Mrs. Pierre. As before, the Diocese noted that Mr. Son-nier raised no facts indicating that it owned the subject cemetery or otherwise controlled or managed the cemetery. As for St. Genevieve’s involvement, it argued that the facts alleged revealed no avenue prohibiting the enforcement of its own rules and regulations regarding construction of the tomb per La.R.S. 8:204. Mrs. Pierre similarly asserted that no cause of action existed and disputed Mr. Sonnier’s suggestion that the relief sought was available to him through the authority purportedly granted to him by Form 93.

Following a hearing, the trial court sustained the exceptions of no cause of action. The judgment that followed dismissed the plaintiffs claims against all defendants.

Mr. Sonnier appeals, setting forth the following assignment of error:

The trial court erred when it determined that there was no cause of action when the Office of Vicar General for the Diocese of Lafayette retitled Calvary Cemetery, St. Catherine section, plot 21 from its original owner, Eugene J. Sonnier, II and when Mr. Paul Dunand, of Calvary Cemetery, sold a burial plot to Titus and Norlet Pierre although both Mr. Dunand and Norlet Pierre were aware that Eugene Sonnier, II had reserved the plots.

As reflected by this assignment of error, Mr. Sonnier no longer addresses the prior request for injunctive relief or any facts surrounding the completion of the tomb. As that argument has seemingly been abandoned or otherwise rendered moot, we do not address that initial concern herein.

^Discussion

Exception of No Cause of Action

Louisiana Code of Civil Procedure Article 927(A)(5) provides for the peremptory exception of no cause of action. The exception’s function is to test the legal sufficiency of the plaintiffs petition by determining whether the law affords a remedy on the facts alleged. Everything on Wheels Subaru, Inc. v. Subaru S., Inc., 616 So.2d 1234, 1235 (La.1993). Pursuant to La.Code Civ.P. art. 931, no evidence may be introduced to support or to controvert the exception of no cause of action. In trying the exception on the face of the pleadings, the trial court must accept the well-pleaded allegations of fact in the petition as true and determine whether the plaintiff is legally entitled to the relief sought. Everything on Wheels, 616 So.2d 1234. However, because Louisiana employs a system of fact pleading, mere conclusions by the plaintiff, unsupported by facts, will not set forth a cause of action. Ramey v. DeCaire, 03-1299 (La.3/19/04), 869 So.2d 114. As the exception raises a question of law and the trial court bases its decision solely on the sufficiency of the petition, an appellate court reviews a ruling on an exception of no cause of action de novo. Reynolds v. Bordelon, 14-2362 (La.6/30/15), 172 So.3d 589.

Person Authorized to Direct Disposition

Central to Mr. Sonnier’s claim against the Diocese and Mrs. Pierre is his assertion that his designation as the PADD in Form 93 authorizes him to exercise complete control of all matters which he argues are related to the disposition of his son’s remains. In this regard, 10 U.S.C. § 1482, which relates to the expenses incident to death of military personnel, provides, in part, that:

|s(c) The following persons may be designated to direct disposition of the remains of a decedent covered by this chapter:
(1) The person identified by the decedent on the record of emergency data maintained by the Secretary concerned (DD Form 93 or any successor to that form), as the Person Authorized to Direct Disposition (PADD), regardless of the relationship of the des-ignee to the decedent.
(2) The surviving spouse of the decedent.
(3) Blood relatives of the decedent.
(4) Adoptive relatives of the decedent.
(5) If no person covered by paragraphs (1) through (4) can be found, a person standing in loco parentis to the decedent.

Through this conduit, Mr. Sonnier seeks to have the titles of Plots 21 and/or 20 and 22 placed in his name alone. This decision, he contends, is required in order for him to fulfill the directive described by Form 93. After review, we find no error in the trial court’s determination that the petitions filed in this case do not contain sufficient facts so as to reveal that he is entitled to such relief.

First, and as to the Diocese, the petition does not indicate through what channel, if any, the Diocese has control over Calvary Cemetery. Instead, in his amended petition, Mr. Sonnier alleged that St. Genevieve “purportedly owns the cemetery.” He further alleges that his interactions with personnel regarding the selection of and payment for the plots, including payment by Mrs. Pierre’s husband, occurred through “Paul Dunand of Calvary Cemetery.” While he alleges that Monsignor Mallet “changed the deed” of Plot 21 to list himself and Mrs. Pierre as co-owners of Plot 21 “although it is their clear and written policy to not have co-owned plots,” he does not identify in what capacity Monsignor Mallet19made such a decision or, in this instance, which “policy” prohibits such ownership. In short, the petitions do not reveal any type of hierarchical structure that joins the Diocese with St. Genevieve, who allegedly owned the subject cemetery.

As for St. Genevieve, the petitions lack indication that the ownership of the plot(s) is dictated by 10 U.S.C. § 1482 which only references the “disposition of the remains of the deceased[.]” See also La.R.S. 8:655. Neither the statute nor 1 ^jurisprudence indicate that the parameters of the PADD directive dictate the ownership of the plot in which the deceased is interred. Moreover, the second amending petition reveals that Mr. Sonnier did not pay for adjacent Plots 20 and 22. Rather, he alleged that Mr. Pierre paid for those plots. Despite this allegation, Mr. Sonnier alternatively seeks placement of the title of those plots in his name. Whether by reference to 10 U.S.C. § 1482, or by reference to specific facts, the petitions do not set forth a cause of action entitling Mr. Sonnier to the relief sought.

Neither do we find merit in the assertion that Mr. Sonnier is entitled to have St. Genevieve re-title the plots solely in his name due to a violation of its rules and regulations.

Significantly, La.R.S. 8:204 provides that:

A cemetery authority may make, adopt, amend, add to, revise, repeal or modify, and enforce rules and regulations for the use, care, control, management, restriction and protection of all or any part of its cemetery, including without limitation the following:
(1) It may restrict and limit the use of all property within its cemetery;
(2) It may regulate the uniformity, class and kind of all markers, monuments and other structures within the cemetery and its subdivisions;
(3) It may regulate or prohibit the erection and/or installation of monuments, markers, effigies, structures and foundations within the cemetery;
(4) It may regulate or prevent the introduction or care of plants or shrubs within the cemetery;
lu(5) It may prevent interment in any part of the cemetery of human remains not entitled to interment and prevent the use of interment spaces for purposes violative of its restrictions or rules and regulations;
(6) It may regulate the conduct of persons and prevent improper assemblages in the cemetery, and
(7) It may make and enforce rules and regulations for all other purposes deemed necessary by the cemetery authority for the proper conduct of the business of the cemetery, for the transfer of any interment space or the right of interment, and the protection and safeguarding of the premises, and the principles, plans, and ideals on which the cemetery is conducted.

Although the plaintiff suggests that various cemetery rules were violated, the allegation is conclusory in nature. The petitions do not set forth sufficient facts so as to determine that particular conduct by St. Genevieve violated a particular rule(s) applicable to the cemetery. The petitions generally detail the factual background, above, and describe St. Genevieve’s ultimate actions as violative of their rules and regulations. However, mere conclusions of the plaintiff unsupported by facts will not set forth a cause or right of action.[] Montalvo v. Sondes, 93-2813 (La.5/23/94), 637 So.2d 127.

By way of example, we note that, in Paragraph 58 of the second amended petition, Mr. Sonnier alleges that “[t]he Diocese of Lafayette has indicated in their policies that joint ownership of burial plots is not allowed.” Yet, as stated above, there is no allegation that the Diocese owned, controlled, or directed Calvary Cemetery. Neither do the petitions advance that the “policy” referenced in this regard is applicable to this occurrence. Simply, the petitions allege various facts and allegations without sufficient connectivity so as to set forth a cause of action.

| ^Accordingly, we leave undisturbed the sustaining of the exception of no cause of action as to both the Diocese and to St. Genevieve.

Mrs. Norlet Pierre

Finally, we address the petition(s) in the context of the claim against Mrs. Pierre. While the plaintiff broadly states that Mrs. Pierre interfered with his ultimate “concept” to have three adjacent plots for his son’s burial, the petitions do not set forth facts constituting a cause of action against her in this regard. Instead, she is alleged to have caused the title of Plot 21 to be re-issued jointly in her name and that she purchased the two adjacent plots. While Mr. Sonnier was dissatisfied with her conduct, he has not alleged facts constituting a cause of action against her, i.e., no facts constituting a tortious or contractual claim.

Accordingly, we leave undisturbed the trial court’s determination.

Disinterment

Finally, we point out that, by the second amending petition, Mr. Sonnier alternatively sought permission to have his son’s body moved to another location within Calvary Cemetary “based on all information presented herein which illustrate that Eugene Sonnier, II’s rights have been vastly undermined.” To the extent the trial court’s ruling encompassed this alternative demand, we again leave that claim undisturbed. Instead, 10 U.S.C. § 1482(c) permits the PADD to “direct disposition of the remains of a decedent[.]” The statute is silent on the right to later disinter those remains.

However, La.R.S. 8:659, entitled “Permission to move remains,” provides that:

A. The remains of a deceased person may be moved from a cemetery space to another cemetery space in the same cemetery or to another cemetery with the consent of the cemetery authority and the | ^written consent of one of the following, in the order named, unless other directions in writing have been given by the decedent:
(1) The surviving spouse, if no petition for divorce has been filed by either spouse prior to the death of the decedent spouse.
(2) The surviving adult children of the decedent, not including grandchildren or other more remote descendants.
(3) The surviving parents of the decedent.
(4) The surviving adult brothers and sisters of the decedent.
B. If the required consent cannot be obtained, a final judgment of the district court of the parish where the cemetery is situated shall be required.

This provision makes no reference to Form 93. Additionally, in Spiess v. Greenwood Development Co., Inc., 542 So.2d 810, 813 (La.App. 3 Cir.1989), a panel of this court made the distinction between a party having the legal authority “to control the disposition of the remains of a deceased person” pursuant to La.R.S. 8:655 and the person(s) having authority to direct the relocation of a deceased’s remains per La. R.S. 8:659. Referencing those statutes, the panel explained that the plaintiff in that case “clearly had the sole statutory authority to initially determine the decedent’s final resting place. However, after the decedent’s initial burial, the voluntary consent of the defendant cemetery authority was also statutorily required before the decedent’s remains could be disinterred and transferred.” Id. Notably, while La. R.S. 8:655 includes a reference to the PADD on Form 93, La.R.S. 8:659 includes no such reference.

As above, we find that the petitions do not set forth facts allowing this alternative relief.

| uDECREE

For the foregoing reasons, the judgment of the trial court is affirmed. Costs of this proceeding are assessed to the plaintiff-appellant, Eugene J. Sonnier, II.

AFFIRMED.

      . In its Answer, the Church defendant(s) appeared as "The Catholic Foundation of the Diocese of Lafayette, Louisiana & Society of the Roman Catholic Church of the Diocese of Lafayette.”

      . Subsequently identified by Mr. Sonnier as "Paul Dunand of Calvary Cemetary.”

      . While the Diocese introduced evidence under the cover of its memorandum which jointly addressed the exception of no cause of action as well as the merits of the petition(s), we point out that this evidence could not be considered for purposes of the exception. See La.Code Civ.P. art. 931 (providing, in part, that "[n]o evidence may be introduced at any time to support or controvert the objection that the petition fails to state a cause of action”). As this appeal addresses only the exception of no cause of action, reference to that evidence is solely for purposes of relating the factual and procedural background. Reference to evidence submitted by Mr. Sonnier in support of his petition is similarly limited.

      . As noted in the factual and procedural background, the Diocese answered that Monsignor Mallet served as the Vice President of St. Genevieve. We make this observation for purposes of discussion only as it demonstrates the deficiency of the plaintiff’s petition, as the exception of no cause of action is adjudged solely by the face of the petition(s).

      . Louisiana Revised Statutes 8:655, which includes reference to the PADD indicated on a Form 93, provides that:
      A. The right to control interment, as defined in R.S. 8:1(26), of the remains of a deceased person, unless other specific directions have been given or the designation of a specific person to control disposition has been made by the decedent in the form of a written and notarized declaration, vests in and devolves upon the following in the order named:
      (1) The surviving spouse, if no petition for divorce has been filed by either spouse prior to the death of the decedent spouse.
      (2) A majority of the surviving adult children of the decedent, not including grandchildren or other more remote descendants.
      (3) The surviving parents of the decedent.
      (4) A majority of the surviving adult brothers and sisters of the decedent.
      (5) A majority of the adult persons respectively in the next degrees of kindred as established in Civil Code Article 880 et seq.
      B. (1) If the decedent died in a manner described by 10 U.S.C. § 1481(a)(1) through (8) while serving in any branch of the United States Armed Forces, the United States Reserve Forces, or National Guard, and the decedent executed a United States Department of Defense Record of Emergency Data, known as DD Form 93, or its successor form, the right to control interment for the decedent shall devolve upon the Person Authorized to Direct Disposition, also referred to as the PADD, as indicated on the DD Form 93 or its successor form.
      (2) There shall be no liability for a cemetery authority, funeral establishment, funeral director, crematory authority, or the employees or agents of any of them to whom a copy of a DD Form 93 is presented, purportedly executed by the decedent for conduction of the interment or other disposition of the decedent’s remains, pursuant to the instructions of the PADD as indicated on the DD Form 93, or for relying on the representation of the PADD that the decedent died in a manner described in Paragraph (1) of this Subsection.
      C.(1) In the event that the decedent has made multiple notarized declarations of interment pursuant to Subsection A of this Section, the declaration dated last shall control.
      (2) In the event that the decedent has made one or more notarized declarations of interment pursuant to Subsection A of this Section, and the decedent executed a DD Form 93 and died in a manner described in Subsection B of this Section, the declaration or the DD Form 93, whichever is dated last, shall control interment of the decedent’s remains.

      . On this latter point, we note that the plaintiff failed to set forth sufficient facts to dera-onstrate the existence of a contractual obligation by St. Genevieve.